FEDERAL COURT OF AUSTRALIA

Crauford v Thomas [2025] FCA 1278

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth), the respondent pay to the applicant the sum of $21,000 by way of damages as compensation for contravention of s 28G(1) of the Sex Discrimination Act 1984 (Cth), comprising:

(a)    general damages in the amount of $15,000; and

(b)    aggravated damages in the amount of $6,000.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCDONALD J:

INTRODUCTION

1    The applicant, Kate Crauford, met the respondent, Anthony Thomas, at an equestrian event that was held in Mt Gambier, in the South East of South Australia, on 25 October 2020.

2    Ms Crauford alleges that between 25 October 2020 and 5 December 2020 (relevant period) she was subjected to a course of unwelcome conduct of a sexual nature by and unwelcome sexual advances from Mr Thomas. Ms Crauford alleges that aspects of his conduct amounted to sexual harassment that was prohibited by s 28A of the Sex Discrimination Act 1984 (Cth) (SD Act). She seeks an award of general, exemplary and aggravated damages. In the relevant period, Ms Crauford was 19 and 20 years of age and Mr Thomas was 45.

3    The conduct which is alleged to amount to sexual harassment involved two distinct aspects. The first involved the sending of certain messages in the course of a continuing one-to-one chat between Mr Thomas and Ms Crauford using the Facebook Messenger app (Facebook messages). Mr Thomas and Ms Crauford sent hundreds of Facebook messages to each other over the period between their first meeting in late October 2020 and the conclusion of an equestrian event in Sydney in early December 2020. These messages are in evidence and there is no dispute as to the fact that these exchanges did occur between Mr Thomas and Ms Crauford. The characterisation of many of the messages sent by Mr Thomas to Ms Crauford is, however, disputed. In her pleaded case, Ms Crauford identifies a large number of messages which are said to constitute sexual harassment of her by Mr Thomas. Mr Thomas accepts that he sent those messages to Ms Crauford, but denies that his conduct in doing so was prohibited sexual harassment.

4    The second aspect of the conduct which is alleged to amount to sexual harassment involves four incidents that are said to have occurred in the course of their trip to Sydney in December 2020. In brief summary, Ms Crauford alleges that, on distinct occasions in the period between 2 and 5 December 2020, Mr Thomas:

(a)    told Ms Crauford that he still occasionally slept with a former partner of his;

(b)    knelt on Ms Crauford’s bed while she was lying on it and leaned over her with his hands on either side of her shoulders;

(c)    stood in the doorway of Ms Crauford’s room while dressed in a towel and looked at her for an uncomfortably long period;

(d)    hugged Ms Crauford for a prolonged period; and

(e)    touched Ms Crauford on the leg while he was sitting in the passenger seat of a vehicle she was driving.

5    Mr Thomas denies each of the five specific instances of alleged conduct in December 2020.

6    Mr Thomas denies that any of his conduct or alleged conduct was such as to fall within the relevant definition of “sexual harassment” in s 28A of the SD Act on the bases that it was not unwelcome conduct of a sexual nature and that a reasonable person, having regard to all the circumstances, would not have anticipated the possibility that Ms Crauford would be offended, humiliated or intimidated by any of it.

7    Mr Thomas further contends that, even if the nature of the conduct was such that it would amount to sexual harassment as defined in the SD Act, it was not prohibited by the SD Act in the context of the relationship that existed between Mr Thomas and Ms Crauford. Ms Crauford contends that the relationship between herself and Mr Thomas was, or at some point became, a relationship of a kind to which one or more of the prohibitions on sexual harassment in the SD Act apply. In particular, Ms Crauford contends that:

(a)    Mr Thomas was (in the sense relevant to the SD Act) a member of the committee of management of a “club” of which she was a member, namely Equestrian South Australia (Equestrian SA);

(b)    Mr Thomas was a person who provided services to Ms Crauford; and

(c)    Ms Crauford was a person who was seeking work from Mr Thomas (whether as an employee or contractor).

8    Mr Thomas denies that Ms Crauford has established that any of the relevant kinds of relationships existed, or that his conduct (or alleged conduct) had the necessary connection to any such relationship to attract the operation of the sexual harassment provisions of the SD Act. He also contends that Ms Crauford has failed to establish that any of his conduct, apart from the sending of Facebook messages, occurred in a context where the relevant provisions of Division 3 of Part II of the SD Act had effect, by virtue of the provisions of s 9 of the SD Act.

9    For the reasons that follow, I accept that, insofar as Mr Thomas’s conduct involved sending Facebook messages, it was conduct to which the relevant provisions of the SD Act were capable of applying, by virtue of s 9(21) of the SD Act.

10    On the other hand, Ms Crauford has not established that the other alleged conduct of Mr Thomas that is said to amount to sexual harassment occurred in circumstances to which the SD Act applied by virtue of s 9 of the SD Act. It follows that the prohibitions in Division 3 of Part II of the SD Act did not have effect in relation to that conduct even if it, or some of it, amounted to sexual harassment as defined in the SD Act.

11    I have concluded that Ms Crauford has not established that Equestrian SA was a “club” as defined for the purposes of s 28K of the SD Act. Ms Crauford was not a “contract worker” for Mr Thomas in the sense relevant to s 28B(3) as in force at the time of the relevant conduct.

12    I have concluded that Ms Crauford has established that Mr Thomas was a person who offered to provide services to her, and that certain conduct that fell within the definition of “sexual harassment” was done “in the course of” Mr Thomas’s providing services to Ms Crauford, for the purposes of s 28G(1).

13    I have accepted the evidence of Ms Crauford where it conflicts with that of Mr Thomas. I accept on the balance of probabilities that all of the conduct of Mr Thomas occurred as Ms Crauford alleges. I have concluded that some, though not all, of the conduct involved in the sending of the Facebook messages should be characterised as conduct of a sexual nature. I accept that the conduct of a sexual nature was unwelcome, and that a reasonable person in the position of Mr Thomas would have anticipated the possibility that some of that conduct might have offended, humiliated or intimidated Ms Crauford.

14    In light of these conclusions, Ms Crauford’s claim should be upheld in part. Ms Crauford is entitled to an award of general damages. Having regard to Mr Thomas’s conduct in falsely publicly representing that Ms Crauford’s claims in relation to him had been “disregarded”, I also consider that an award of aggravated damages should be made.

BRIEF OVERVIEW OF FACTS

15    Between approximately January 2014 and 30 October 2020, Ms Crauford and Mr Thomas had competed in or attended some of the same show jumping competitions in South Australia. Ms Crauford and Mr Thomas first met at an equestrian event in Adelaide in January 2014, when Mr Thomas approached Ms Crauford and her mother, Sophie Crauford, to offer advice regarding the course. Ms Crauford and Mr Thomas next met at an event in Mundulla, near Bordertown, South Australia, in March 2014, when Mr Thomas again approached Ms Crauford to offer her advice about the course. Ms Crauford was 13 years old at that time.

16    After 2014, Ms Crauford and Mr Thomas did not interact again until 25 October 2020, when Ms Crauford attended the Mt Gambier Show to compete in the novice class of the show jumping competition. Mr Thomas was also in attendance, and was competing in the main class of the show jumping competition. Mr Thomas was present with Ms Crauford and Sophie Crauford when they discussed the show jumping round in which Ms Crauford had just competed. Ms Crauford was disappointed with her performance. Following this conversation, Mr Thomas asked Ms Crauford if she would assist Mr Thomas and his horse, Victor, to warm up for competition in the main class. Ms Crauford assisted Mr Thomas and then filmed him, using her mobile phone, while he competed in the competition, and showed him the video on her phone. Ms Crauford also helped cool down Victor by taking him for a walk after Mr Thomas finished competing.

17    At 4.55pm on 25 October 2020, Ms Crauford received the first of many Facebook messages from Mr Thomas. He asked Ms Crauford to send her the videos and a photo she had taken. An exchange of messages followed. The content of many of the Facebook messages is set out below, in the context of my consideration of whether the sending of particular messages, considered in context, was conduct that met the definition of sexual harassment. The final Facebook message sent between Mr Thomas and Ms Crauford was sent by Mr Thomas on 11 December 2020 at 7.55pm. During the period between 25 October 2020 and 11 December 2020, Mr Thomas and Ms Crauford communicated in writing via Facebook Messenger, sometimes by telephone (after Ms Crauford provided her phone number to Mr Thomas on 4 November 2020), and in person.

18    The South Australian State Show Jumping Championships were held at Wirrina Cove between 29 October 2020 and 1 November 2020. Mr Thomas and Ms Crauford competed in different classes. Mr Thomas was one of the event organisers for the State Show Jumping Championships as a member of the South Australian State Show Jumping Committee (Jumping Committee). Mr Thomas and Ms Crauford stayed at separate camp locations. Ms Crauford filmed Mr Thomas’s jumping rounds. On 29 October 2020, Mr Thomas invited Ms Crauford to come to the camping area of fellow competitors, Shauna and Adam Beckel, for an event that Mr Thomas was attending. In the evening on 30 October 2020, Ms Crauford attended the camp club rooms for about one hour. On 1 November 2020, Ms Crauford attended the camp club rooms and had a brief conversation with Mr Thomas. Ms Crauford departed Wirrina Cove with Sophie Crauford around mid-afternoon on 1 November 2020.

19    The 2020 Sydney Summer Championships were to be held at the Sydney Showjumping Club on 4 and 5 December 2020 (Sydney Show). On 21 November 2020, Ms Crauford agreed to transport Mr Thomas’s horse, Victor, to the Sydney Show in her horse float. Ms Crauford also ultimately transported Mr Thomas to Sydney in her car.

20    On 23 November 2020, Ms Crauford and Mr Thomas had a phone call in which they arranged for Mr Thomas to bring Victor to Ms Crauford’s house in preparation for the trip to Sydney. Ms Crauford offered to pick up Victor from the town of Keith, in South Australia’s South East, at 7.30am on 24 November 2020 and to exercise him, in return for being reimbursed for fuel. Ms Crauford housed and exercised Victor at her house between 24 November 2020 and 1 December 2020. Mr Thomas gave her a float-load of hay to reimburse her for her time and effort.

21    On the evening of 30 November 2020, Mr Thomas arrived at Ms Crauford’s house in Mt Gambier. On the morning of 1 December 2020, they left Mt Gambier for Tarcutta in south-western New South Wales (and ultimately Sydney). Ms Crauford drove in her car. They arrived at the Tarcutta Halfway Motor Inn later the same day. Ms Crauford slept in her “gooseneck” trailer and Mr Thomas stayed in a room at the motel. On the morning of 2 December 2020, they left Tarcutta and drove to Sydney, arriving at the residence of Mr Thomas’s friends, Bill and Sharon Slater, (Slater residence) at about 1.00pm that day. It was in the course of this drive that Ms Crauford alleges Mr Thomas made a comment to her about his continuing to sleep with his former partner.

22    At the Slater residence, Mr Thomas and Ms Crauford stayed in separate bedrooms. They had access to a single bathroom which was located between their two rooms. They stayed at the Slater residence for the duration of the Sydney Show, and until 9 December 2020.

23    At about 5.00pm on 2 December 2020, Mr Thomas, Ms Crauford and Sharon Slater went together to a property called Fernhill, where Mr Thomas had made an appointment to assess a horse called Carl Aus Pausin (Carl), with a view to purchasing him. Ms Crauford rode Carl for Mr Thomas and gave him her opinion on Carl.

24    On the morning of 3 December 2020, Ms Crauford agreed to exercise Victor, and Mr Thomas and Ms Crauford attended an arena near the Slater residence. Ms Crauford alleges that she witnessed Mr Thomas “rap” Victor while she was riding him by kicking up trot poles, causing them to hit Victor as he went over them. Mr Thomas denies this.

25    That evening, they returned to the Slater residence. Later in the evening, Ms Crauford was in her room at the Slater residence, using her laptop on her bed to research the draw for the Sydney Show. Mr Thomas entered her room. Ms Crauford claims that Mr Thomas got onto the bed next to her, and placed his body over the top of hers, with both of his legs on one side of her body and his hands on either side of her shoulders, looking at the laptop screen. Ms Crauford claims that Mr Thomas then stood in the doorway for a prolonged period, leering or staring at her, before leaving. Mr Thomas denies that he got onto the bed or leered or stared at Ms Crauford.

26    On 4 and 5 December 2020, Mr Thomas and Ms Crauford each competed in the Sydney Show, in different classes. On the morning of 4 December 2020, Ms Crauford drove herself and Mr Thomas (and both of their horses, Teddy and Victor) to the Sydney Show. Once there, Ms Crauford assisted Mr Thomas with warming up his horse. Ms Crauford returned to find that her trailer had been left messy and Teddy’s lead rope was broken.

27    Ms Crauford claims that, on 4 December 2020, after a discussion about Mr Thomas’s treatment of Victor and of Ms Crauford’s belongings that morning, Mr Thomas asked Ms Crauford for a hug, and then proceeded to hug her for approximately 40 seconds. Mr Thomas denies that he hugged Ms Crauford.

28    Ms Crauford claims that, in the evening of 4 December 2020, Mr Thomas left the bathroom and stood in the doorway of Ms Crauford’s bedroom, while wearing only a loosely wrapped towel around his waist. Ms Crauford claims that Mr Thomas said words to the effect of, “You need to go to bed, missy.” She claims that she responded by telling him, “Oh, I didn’t realise I need fucking parental advice.” She claims that Mr Thomas then giggled, slowly turned and left the room with the towel “half falling off”. It is an agreed fact that, during the time that Mr Thomas and Ms Crauford were staying at the Slater residence, Mr Thomas occasionally stopped in the doorway of Ms Crauford’s bedroom, if the door was open, and spoke to her. Ms Crauford’s allegations regarding Mr Thomas’s conduct on the evening of 4 December 2020 are otherwise denied. Ms Crauford claims that, after this incident, she called Sophie Crauford and asked her to come to Sydney.

29    On 5 December 2020, Ms Crauford drove Mr Thomas and Teddy to the Sydney Show. After competing in her class, Ms Crauford drove back to the Slater residence to return Teddy and to take Victor to the Sydney Show. Ms Crauford walked Victor before Mr Thomas competed in his class.

30    Later on 5 December 2020, Ms Crauford drove Mr Thomas back to the Slater residence in her car. Mr Thomas was sitting in the front passenger seat. Ms Crauford claims that, during the drive, she raised concerns about Mr Thomas’s treatment of Victor the previous day. Ms Crauford claims that, in the course of this conversation, Mr Thomas touched her on the leg over her pants for a few seconds. Mr Thomas disputes the terms of the conversation and denies that he touched Ms Crauford as alleged.

31    On 6 December 2020, Sophie Crauford arrived in Sydney. At about 8.20pm that evening, Ms Crauford drove to Sydney Airport to pick up Sophie Crauford. They then returned to the Slater residence.

32    Between 9 and 13 December 2020, Ms Crauford, Mr Thomas and Sophie Crauford attended a show jumping competition at Sydney International Equestrian Centre. On 9 and 10 December 2020, Ms Crauford and Sophie Crauford camped in Ms Crauford’s gooseneck trailer and Mr Thomas camped in an onsite cabin. On 11 December 2020, Ms Crauford removed Mr Thomas’s equipment from her vehicle. Ms Crauford and Sophie Crauford removed Teddy and stayed offsite until 13 December 2020, returning to the venue each day for the competition. On 13 December 2020, Ms Crauford and Sophie Crauford departed Sydney, separately from Mr Thomas.

ISSUES IN DISPUTE

33    The trial gives rise to many contested issues. The potential issues include at least the following:

(1)    In respect of each of the Facebook messages that are said to be sexual harassment, did the sending of those messages meet the definition of “sexual harassment”?

(a)    Was sending the messages an “unwelcome sexual advance” or “unwelcome conduct of a sexual nature”?

(b)    Was sending the messages conduct such that a reasonable person would have anticipated the possibility that it would have offended, humiliated or intimidated Ms Crauford?

(2)    Did each of the incidents involving in-person conduct on the trip in Sydney in the period 2 to 5 December 2020 occur as alleged by Ms Crauford?

(3)    If the incidents involving in-person conduct did occur, did they meet the definition of “sexual harassment”?

(a)    Was Mr Thomas’s conduct an “unwelcome sexual advance” or “unwelcome conduct of a sexual nature”?

(b)    Was that conduct such that a reasonable person would have anticipated the possibility that it would have offended, humiliated or intimidated Ms Crauford?

(4)    Did Mr Thomas engage in the in-person conduct (ie, the conduct alleged to constitute sexual harassment, other than the sending of Facebook messages) in his capacity as an officer or employee of a trading corporation (so as to support a connection of the kind contemplated by s 9(12) or (14) of the SD Act)?

Mr Thomas’s business, Southern Sports Horses (SSH)

(a)    Was SSH a trading corporation?

(b)    Was Mr Thomas an officer or employee of SSH?

(c)    If so, did Mr Thomas engage in any of the physical conduct in connection with his duties as an officer or employee of SSH?

Equestrian SA

(a)    Was Equestrian SA a trading corporation?

(b)    Was Mr Thomas an officer or employee of Equestrian SA?

(c)    If so, did Mr Thomas engage in any of the physical conduct in connection with his duties as an officer or employee of Equestrian SA?

(5)    Did s 28K of the SD Act apply to all of Mr Thomas’s conduct on the basis that Mr Thomas was a member of the committee of management of a club of which Ms Crauford was a member?

(a)    Was Equestrian SA a “club” for the purposes of the SD Act, and, in particular, is it established that it provided liquor “for consumption on its premises”?

(b)    Was Mr Thomas, by virtue of his membership of the Jumping Committee, a member of Equestrian SA’s “committee of management” within the meaning of the SD Act?

(6)    Did s 28B(3) of the SD Act apply to all of Mr Thomas’s conduct on the basis that Ms Crauford was a person seeking to become a contract worker of Mr Thomas?

(7)    Did s 28G(1) of the SD Act apply to any of Mr Thomas’s conduct?

(a)    Did any of Mr Thomas’s conduct amount to offering to provide goods, services or facilities to Ms Crauford within the meaning of s 28G(1)?

(b)    If so, was any of Mr Thomas’s conduct that amounted to sexual harassment (whether sending Facebook messages or in-person conduct) committed “in the course of” his offering to provide goods, services or facilities to Ms Crauford?

(8)    If general damages should be awarded, what should be the quantum of damages?

(9)    Should any award of general damages be discounted or reduced because of the existence of a settlement agreement entered into between Equestrian SA, Equestrian Australia Ltd (Equestrian Australia), Ms Crauford and Sophie Crauford, pursuant to which a sum of money was payable to Ms Crauford and Sophie Crauford?

(10)    Should exemplary damages be awarded and, if so, what should be the quantum of any exemplary damages?

(11)    If Ms Crauford is entitled to damages, should aggravated damages be awarded and, if so, what should be the quantum of any aggravated damages?

34    Given the conclusions I have reached in relation to some of these issues, it will not be necessary to resolve all of them. In the circumstances of this case, it is preferable not to resolve a large number of additional issues on assumptions that, in light of my conclusions, would be hypothetical.

RELEVANT PROVISIONS OF THE SD ACT

Section 28A: definition of “sexual harassment”

35    Division 3 of Part II of the SD Act makes it unlawful for a person to sexually harass another person in various defined circumstances. Some amendments have been made to Division 3 since the events the subject of these proceedings, but I shall generally refer to the provisions as they were in force between October and December 2020 using the present tense.

36    To fully appreciate the effect of the substantive provisions of Division 3, it is necessary to trace through a number of relevant definitions. The first provision in Division 3, s 28A (as in force at the relevant time), defines the concept of sexual harassment in the following terms:

(1)    For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

(a)    the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b)    engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

(1A)    For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:

(a)    the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;

(b)    the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;

(c)    any disability of the person harassed;

(d)    any other relevant circumstance.

(2)    In this section:

conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

37    In Hughes (trading as Beesley and Hughes Lawyers) v Hill (2020) 277 FCR 511; [2020] FCAFC 126 at 516-17 [22]-[24], Perram J (with whom Collier and Reeves JJ agreed) explained that there were essentially three elements to s 28A:

First, the Court is directed by subs (1) to ask itself whether there has been any of three identified forms of conduct: a sexual advance, a request for sexual favours or other conduct of a sexual nature. Each of these concepts involves the application of a defined legal standard to the facts as found. The Court must determine, on those facts, whether there was a sexual advance, a request for sexual favours or other conduct of a sexual nature. It is a question for the Court and it is a question of fact. In determining whether there has been conduct of a sexual nature the Court applies, of course, the definition of that term in s 28A(2).

Secondly, if an identified form of conduct is established subs (1) also requires that it must be ‘unwelcome’ to the person allegedly harassed. This is a question of fact which is subjective and which turns only on the allegedly harassed person’s attitude to the conduct at the time. Even if the Court has concluded under the first limb that one person has engaged in conduct of a sexual nature towards another person, this will not constitute sexual harassment under the provision if it was not actually unwelcome in this sense. Ordinarily this will be proved by the person allegedly harassed giving evidence that the conduct was unwelcome but that mode of proof is not dictated by the statute and proof of this fact, like proof of any other fact, may be done by a variety of means. In some cases, I suspect this is one, the unwelcome quality of the conduct will be painfully obvious.

Thirdly, once it be established that there was conduct of a sexual nature towards another and that the conduct was unwelcome, the provision imposes an objective delimitation on the provision’s ambit. The “circumstances” must be such that a reasonable person would have anticipated the possibility that the person allegedly harassed would be offended, humiliated or intimidated by the conduct. The “circumstances” are defined broadly in s 28A(1A) and include, importantly for this case, the relationship between the harasser and the harassed.

38    The concept of sexual harassment defined by s 28A is similar or identical to statutory definitions of sexual harassment that appear in State legislation. In relation to the phrase “other unwelcome conduct of a sexual nature”, in Vitality Works Australia Pty Ltd v Yelda (No 2) (2021) 105 NSWLR 403; [2021] NSWCA 147 (Vitality Works), Bell P and Payne JA (with whom McCallum JA agreed) said (at 425 [97]):

The phrase “other unwelcome conduct of a sexual nature” is not a term of art but, rather, an ordinary English expression in common usage. It is a term of broad import that should not be narrowly construed. The breadth of the conduct amounting to “other unwelcome conduct of a sexual nature” should not be read down or confined by reference to limits or restrictions which do not appear in the statute.

39    Their Honours also said that “‘other unwelcome conduct of a sexual nature’ includes sexually suggestive ‘jokes’ and comments, including ‘jokes’ and comments containing a double meaning” (at 426 [100], and see also at 428 [108]). In its application to the making of statements, “other unwelcome conduct of a sexual nature” is not limited to sexually explicit statements: Vitality Works at 428 [109]; Taylor v August and Pemberton Pty Ltd (2023) 328 IR 1; [2023] FCA 1313 (Taylor) at 13 [51], 57 [356].

40    The authorities have repeatedly emphasised the importance of context in assessing whether particular conduct meets the description of “other unwelcome conduct of a sexual nature”: see, eg, Vitality Works at 426 [101]; Taylor at 61 [378]. They have also emphasised that it is not possible to compile an exhaustive list of “other unwelcome conduct of a sexual nature”, or to set the outer boundaries of that context: see, eg, Poniatowska v Hickinbotham [2009] FCA 680 at [294]; Vitality Works at 426-7 [102]-[105].

41    The question of whether conduct constitutes sexual harassment may involve questions of degree, as is demonstrated by the range of conduct to be considered in this case.

42    The circumstances to be taken into account in making this assessment include the following. At the relevant time, Ms Crauford was 19 or 20 years old and Mr Thomas was 45 years old. Mr Thomas was an experienced and successful rider and coach in relation to the sport of show jumping. Ms Crauford was a young and evidently talented rider who was hoping to pursue a career in the sport. Mr Thomas was a senior member of Equestrian SA with an official role as a member of its Jumping Committee and was a South Australian state jumping selector due to his position on the Jumping Committee, responsible for making team selection decisions that affected Ms Crauford. Mr Thomas had a business with various aspects that related to the provision of goods and services connected with horses and show jumping. He projected an image of himself as a successful businessman who could provide employment or business opportunities to Ms Crauford and could influence the success or otherwise of her show jumping career. They first relevantly met in person in late October 2020 and, thereafter, their interactions until the Sydney trip in December were predominantly via Facebook Messenger.

43    Their relationship was not the paradigm relationship to which the SD Act would usually apply. Mr Thomas and Ms Crauford met through their involvement with the sport of show jumping and struck up what was, at least initially, a primarily personal relationship in that context. In the course of that relationship, Mr Thomas began to suggest that he could provide Ms Crauford with opportunities to work with or for him, and could provide her with coaching. It was not a case of Ms Crauford initially meeting Mr Thomas in the context of her, for example, engaging him to provide goods or services in an arms-length transaction, or applying for or obtaining employment in his business.

44    The SD Act does not prohibit all conduct falling within the definition of sexual harassment in all circumstances. Rather, ss 28B to 28L contain a series of specific provisions which make it unlawful for persons, or particular classes of persons, to sexually harass other persons, or particular classes of persons, if the persons are in a particular kind of relationship and/or if the conduct occurs in particular circumstances.

45    The provisions which Ms Crauford relies upon as allegedly applicable to the conduct of Mr Thomas in the period from 25 October to 5 December 2020 are ss 28B, 28G and 28K of the SD Act. I shall address the issues concerning the application of each of these provisions at [75]-[159] below.

Section 9 of the SD Act limits the effect of the provisions relating to sexual harassment

46    Each of the provisions relied upon by Ms Crauford is one of the “prescribed provisions of Division 3 of Part II”, as defined in s 9(1) of the SD Act. Section 9 identifies the extent to which those provisions are intended to have effect.

47    The most relevant parts of s 9 of the SD Act provide:

9 Application of Act

(1)    In this section:

…

prescribed provisions of Division 3 of Part II means the provisions of Division 3 of Part II other than sections 28D and 28L.

prescribed provisions of Part II means the provisions of Divisions 1 and 2 of Part II other than sections 19, 26 and 27.

…

(2)    Subject to this section, this Act applies throughout Australia.

(3)    This Act has effect in relation to acts done within a Territory.

(4)    The prescribed provisions of Part II, and the prescribed provisions of Division 3 of Part II, have effect as provided by subsection (3) of this section and the following provisions of this section and not otherwise.

(5)    Sections 14, 15, 16 and 28B have effect in relation to discrimination against, and sexual harassment of:

(a)     Commonwealth employees in connection with their employment as Commonwealth employees; and

(b)     persons seeking to become Commonwealth employees.

…

(10)    The prescribed provisions of Part II, and the prescribed provisions of Division 3 of Part II, have effect to the extent that the provisions give effect to a relevant international instrument.

…

(12)    The prescribed provisions of Division 3 of Part II have effect in relation to acts done, by or in relation to a person who is an officer or employee of a foreign corporation, or of a trading or financial corporation formed within the limits of the Commonwealth, in connection with the person’s duties as such an officer or employee.

…

(14)    Without prejudice to the effect of subsection (12), the prescribed provisions of Division 3 of Part II have effect in relation to acts done, by or in relation to a person who is an officer or employee of a trading or financial corporation formed within the limits of the Commonwealth, in connection with any of the person’s duties as such an officer or employee that relate to the trading activities of the trading corporation or the financial activities of the financial corporation, as the case may be.

…

(21)    The prescribed provisions of Division 3 of Part II have effect in relation to acts done using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution).

48    The submissions of the parties did not initially address the effect of s 9 of the SD Act. Ms Crauford did not plead the basis on which the prescribed provisions of Division 3 of Part II of the SD Act were said to apply to Mr Thomas’s conduct, and Mr Thomas’s defence did not expressly deny liability on the basis that those provisions were not applicable.

49    No reference was made to s 9 in the opening and closing submissions of either party. After the closing submissions had been completed, the Court invited the parties to provide supplementary written submissions regarding s 9 and the application of the prescribed provisions of Division 3 of Part II.

50    In her supplementary submissions, Ms Crauford submits that s 9 should be given a wide interpretation which limits the effect of the SD Act only to the extent necessary to ensure that its operation does not extend beyond the reach of the heads of Commonwealth legislative power. She relies on the following passage from the reasons of Black CJ and Tamberlin J in South Pacific Resort Hotels Pty Ltd v Trainor (2005) 144 FCR 402; [2005] FCAFC 130 at 406-7 [20]:

An object of s 9(4), as revealed by the text and confirmed by the Second Reading Speech is to extend the operation of the prescribed provisions of the [SD Act] throughout Australia to the extent that the legislative powers of the Commonwealth Parliament may allow. Since the powers of the Parliament in relation to the Territories are relevantly plenary, it cannot have been intended that the prescribed provisions should have a very limited operation in relation to the Territories when the intention in relation to Australia generally was to give the provisions as wide an operation as possible. The two ideas are simply inconsistent.

(Emphasis added.)

51    Ms Crauford submits that the purpose of s 9 was to ensure that the operation of the SD Act provisions was confined within Commonwealth legislative power, and that s 9 does not otherwise operate to constrict the operation of the SD Act in any way. She also appears to submit that s 9 should be understood as clarifying or extending the operation of the prescribed provisions of Division 3 of Part II, rather than as limiting their operation.

52    I do not accept these submissions. As noted above, ss 28B, 28G and 28K are all provisions of Division 3 of Part II. They fall within the definition of “prescribed provisions of Division 3 of Part II” in s 9(1). None of ss 28B, 28G and 28K falls within the definition of “prescribed provisions of Part II”. The terms of s 9(4) make clear that the prescribed provisions of Division 3 of Part II of the SD Act have effect only as provided by s 9(3) and the provisions of s 9 that follow s 9(4), and not otherwise. The effect of s 9(3) is that the prescribed provisions apply according to their terms in relation to acts done within a Territory, but s 9(3) is not relevant to the present case because none of Mr Thomas’s conduct was done within a Territory.

53    Insofar as it can be said that s 9 of the SD Act seeks to give effect to an object of extending the prescribed provisions throughout Australia to the extent that the legislative powers of the Commonwealth may allow, the way that object is pursued is by identifying particular connecting circumstances that relate to particular heads of power and by providing that the operation of the prescribed provisions of Division 3 of Part II is limited to those identified circumstances. Section 9 does not operate to cause the prescribed provisions to have every operation that the Commonwealth Parliament could constitutionally have given them. Accepting that it is generally appropriate to construe s 9(5) to (21) broadly, the operation of the prescribed provisions is nevertheless defined, and confined, by the language actually used in those subsections.

54    The only potentially relevant provisions of s 9 are s 9(10), (12), (14) and (21). Ms Crauford does not seek to place reliance on any of s 9(5), (16), (18) or (20).

55    Section 9(14) was evidently included in s 9 in case s 9(12) was expressed too broadly to provide a sufficient connection between the operation of the prescribed provisions of Division 3 of Part II and the head of Commonwealth legislative power referred to in s 51(xx) of the Constitution (trading and financial corporations and foreign corporations). Neither party in this case contended that that was so. Consequently, s 9(14) can be put to one side, since the effect which it would give to the prescribed provisions is wholly subsumed within the effect that is given to those provisions by s 9(12).

56    All of the acts involved in the sending of Facebook messages over the internet are acts using a “postal, telegraphic, telephonic or other like service”. By reason of s 9(21) of the SD Act, therefore, the prescribed provisions of Division 3 of Part II will have effect according to their terms in relation to the conduct of Mr Thomas that involves sending Facebook messages.

57    In relation to the other alleged conduct of Mr Thomas, being conduct that occurred in person in Sydney between 2 and 5 December 2020, the basis for the application of the prescribed provisions of Division 3 of Part II of the SD Act is not as readily apparent. That conduct could only be prohibited by ss 28B, 28G or 28K if:

(a)    in their application to that conduct, ss 28B, 28G and/or 28K give effect to a “relevant international instrument”; or

(b)    Mr Thomas were an officer or employee of a foreign corporation, or of a trading or financial corporation formed within the limits of the Commonwealth, and the alleged acts were done in connection with his duties as such an officer or employee.

58    The expression “relevant international instrument” is defined in s 4(1) of the SD Act to mean each of eight specified international instruments. Ms Crauford does not advance a submission that any of ss 28B, 28G or 28K of the SD Act relevantly give effect to provisions of any of those instruments.

Was SSH a trading corporation and was the relevant in-person conduct of Mr Thomas done in connection with his duties as an officer or employee of SSH?

59    Ms Crauford submits that the business run by Mr Thomas, SSH, was a trading corporation, and that he was an officer or employee of that business. She also submits that Equestrian SA was a trading corporation and that Mr Thomas, in his position as a member of its Jumping Committee, was an officer or employee of Equestrian SA.

60    As explained above, the issue of the application of the relevant provisions of the SD Act was not one that was clearly joined on the pleadings. The issue does not appear to have been adverted to by the parties at all until it was raised by the Court, after the close of the evidence and the completion of closing submissions. The following facts relating to SSH and Mr Thomas’s business activities are agreed between the parties:

At all times during the Relevant Period [Mr Thomas] owned and conducted a business, Southern Sport Horses Saddleworld Mt Barker (ABN 84 509 563 685) (SSH) in the course of which he was dealing in horse-riding equipment and accessories, horse feed and supplements, horse grooming equipment and veterinary supplies as well as the identification, procurement and sale of sporting horses for use in equestrian activities.

[Mr Thomas] also provides coaching to other riders in the South Australian equestrian community and offers a horse agistment and training facility at his property at [Echunga, in the Adelaide Hills].

61    The agreed facts do not state whether the business of SSH was conducted through a corporation, by Mr Thomas personally, or through another structure.

62    In the course of cross-examination, a series of questions were put to Mr Thomas about the businesses he operates. Mr Thomas acknowledged that the fodder shop he operated in Mt Barker was “run through a company, Southern Sports Horses”. In his supplementary written submissions, Mr Thomas states that “SSH was a company”.

63    Whether SSH was a trading corporation is to be assessed principally by reference to its (then) current activities: see, eg, State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282 at 304 (Mason, Murphy and Deane JJ). The agreed facts, Mr Thomas’s evidence, and the financial information he sent to Ms Crauford demonstrate that SSH had substantial trading activities. I therefore accept that SSH was a trading corporation.

64    Mr Thomas repeatedly referred to SSH as “his business”. In the course of sending Facebook messages to Ms Crauford, he provided financial information about the operation of SSH that was only likely to have been available to a person who was either a director or an employee of SSH, or both. I accept that the evidence establishes that Mr Thomas was either an officer or an employee of SSH.

65    The next question that arises is whether the physical conduct of Mr Thomas which is said to constitute sexual harassment was done in connection with his duties as an officer or employee of SSH. In this context, the word “duties” is not used in a restrictive sense; it is apt to encompass activities undertaken on behalf of the trading corporation or because of the person’s position as a director or other officer, or employee, of the corporation. That understanding of “duties” of an officer or employee is consistent with the apparent purpose of s 9(12), namely, to give the relevant provisions of Division 3 of Part II a broad operation by reference to a person’s connection with the subject matter of s 51(xx) of the Constitution. However, the mere circumstance that a person holds an office in or is an employee of a trading corporation would not suffice to supply a sufficient connection between all conduct of such a person and the subject matter of trading corporations.

66    There is no doubt that some of Mr Thomas’s conduct with respect to Ms Crauford was undertaken “in connection with” his duties as an officer or employee of SSH, in the relevant sense. Most obviously, the sending of Facebook messages that suggested future employment opportunities for Ms Crauford with SSH have a sufficient connection with Mr Thomas’s position as an officer or employee of SSH.

67    On the other hand, most of the interaction between Mr Thomas and Ms Crauford was personal and much of it related to activities in respect of which it could not be concluded that Mr Thomas was acting on behalf of SSH or in connection with his duties as an officer or employee of SSH. Mr Thomas was a competitor in the sport of show jumping and was engaged in that sport in his personal capacity and not on behalf of SSH or in connection with his duties as an officer or employee of SSH. He also offered coaching services. There is no evidence to demonstrate that he did so through SSH or, in particular, that, insofar as he proposed to provide coaching to Ms Crauford, he did so as an officer or employee of SSH. Although SSH engaged in business activities that related to horses, that does not mean that anything Mr Thomas did that was connected to horses was conduct “in connection with” his “duties” as an officer or employee of SSH.

68    One of the things that Mr Thomas did when he went to Sydney with Ms Crauford was to look at the horse, Carl, with a view to purchasing him. Mr Thomas’s evidence in cross-examination was that, at the time he went to Sydney, he was “looking at a horse to buy” and that he “like[d] to see horses go with a lesser experienced rider because that is the market of the horses”. He accepted that, when he had offered to fly Ms Crauford to Sydney, he had in mind that she would “[c]ome and try the horse”, albeit that, at that time, that was only an idea. He acknowledged his practice when purchasing horses – to have a lower-level rider ride the horse on his behalf so he could watch them – was the practice that he adopted in having Ms Crauford ride Carl. Mr Thomas went to view Carl with a view to purchasing him and I find that, in so doing, Mr Thomas was acting for the purposes of his business, SSH. However, his travel to Sydney was not predominantly for the purpose of viewing Carl, and Ms Crauford was not in Sydney with Mr Thomas for that purpose in particular. Rather, both were in Sydney to attend and compete in show jumping events. Apart from the visit to see Carl, the evidence does not suggest that Mr Thomas was acting in connection with his duties as an officer or employee of SSH while he was in Sydney. Thus, while Mr Thomas did engage in some conduct in Sydney that was in connection with his duties as an officer or employee of SSH, not all of his conduct in Sydney was conduct in connection with such duties.

69    Mr Thomas’s physical conduct towards Ms Crauford in Sydney which is alleged to constitute sexual harassment did not occur in connection with his visit to see Carl and the evidence does not establish that the circumstances in which that conduct occurred had any connection with Mr Thomas’s status, position or duties as an officer or employee of SSH. The conduct occurred in situations that were connected to Mr Thomas’s and Ms Crauford’s horse riding and involvement in the show jumping competition.

Has Ms Crauford established that Equestrian SA was a trading corporation?

70    In relation to Equestrian SA, it is possible that it is a trading corporation, but the evidence does not establish that that is so.

71    There is no doubt that a sporting body can potentially be a trading corporation, but not every incorporated sporting organisation is a trading corporation. There is little direct evidence before the Court of Equestrian SA engaging in trading activities. There is no evidence as to how Equestrian SA raises funds, or to what extent it engages in trading activities.

72    The constitution of Equestrian SA is in evidence. In cl 2 it lists some 28 purposes of the association, none of which specifically refers to trade. Perhaps the most relevant of the purposes is paragraph (r) which states that it is an object of Equestrian SA to “pursue through itself or others, such commercial arrangements, including sponsorship and marketing opportunities, as are appropriate to further these Purposes”. This is not suggestive of trading activity being a substantial function of Equestrian SA, whether generally or considered in the context of its activities as a whole. If anything, it suggests that any trading engaged in by Equestrian SA is subordinate to its other purposes.

73    In light of this conclusion, it is unnecessary to decide whether Mr Thomas’s position as a member of the Jumping Committee meant that he was an “officer” of Equestrian SA in the relevant sense, or whether any of Mr Thomas’s physical conduct in Sydney was “in connection with” his position as an officer of Equestrian SA.

Conclusion regarding the application of s 9(12) and (14)

74    For these reasons, I have concluded that Mr Thomas’s conduct towards Ms Crauford, in the course of the Sydney trip, was not conduct “in connection with” his duties as an officer or employee of a trading corporation. Section 9(12) and (14) of the SD Act did not, therefore, give effect to prescribed provisions of Division 3 of Part II in connection with that conduct.

WERE ANY OF THE RELEVANT PROVISIONS OF DIVISION 3 OF PART II OF THE SD ACT ENGAGED?

75    Ms Crauford submits that the relationship that developed between Mr Thomas and Ms Crauford was multifaceted. This is undoubtedly true. The relationship evidently involved: elements of a developing friendship; a shared interest in equestrian competition; mutual assistance in connection with competition-related activities; and some exploration of the potential for Ms Crauford to perform work for Mr Thomas or SSH in some capacity.

76    Ultimately, it is necessary to apply the terms of each of ss 28B, 28G and 28K of the SD Act by reference to the facts, including the developing nature of the relationship between Mr Thomas and Ms Crauford. Whether or not the relationship was one to which ss 28B, 28G or 28K applied could potentially change over time as it developed. In this case, I do not think it is appropriate to attempt to characterise the whole of the relationship without regard to events as they unfolded, or to retrospectively characterise the early stages of the relationship by reference to events that only occurred later.

77    On the other hand, I also accept Ms Crauford’s submission that, at any given point in time, a relationship might have multiple facets and, if the circumstances are such as to cause one of the prohibitions in Division 3 of Part II of the SD Act to apply, they will not cease to apply merely because, for example, the relationship has other dimensions.

78    In interpreting and applying the provisions of ss 28B, 28K and 28G, I bear in mind that s 3 of the SD Act states that it is an object of the SD Act “to eliminate, so far as is possible, discrimination involving sexual harassment in the workplace, in educational institutions and in other areas of public activity”. That expression of the object suggests that the provisions of Division 3 of Part II of the SD Act should not be given a narrow construction. However, the actual limits of the circumstances in which sexual harassment is made unlawful must ultimately be determined by reference to the language used in the particular provisions that are relied on.

Section 28K – member of the committee of management of a club and member of that club

79    Section 28K of the SD Act provides as follows:

28K Clubs

It is unlawful for a member of the committee of management of a club to sexually harass a member of the club or a person seeking to become a member of the club.

80    Section 4(1) contains two definitions that are relevant to s 28K. First, “club” is defined as follows:

club means an association (whether incorporated or unincorporated) of not less than 30 persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes that:

(a)    provides and maintains its facilities, in whole or in part, from the funds of the association; and

(b)    sells or supplies liquor for consumption on its premises.

81    Secondly, “committee of management” is defined in the following terms:

committee of management, in relation to a club or a registered organisation, means the group or body of persons (however described) that manages the affairs of that club or organisation, as the case may be.

82    If a person is a member of the committee of management of a club, s 28K makes it unlawful for that person to engage in sexual harassment against another person who is a member of the club. It is not necessary that conduct amounting to sexual harassment occur in any particular context or that the conduct have any link with the relevant club. (As will be seen, in this respect s 28K is to be contrasted with s 28G.)

83    In relation to the application of s 28K, Ms Crauford contends that:

(a)    Mr Thomas was a member of the Jumping Committee of Equestrian SA;

(b)    by virtue of his membership of the Jumping Committee, Mr Thomas was a member of “the committee of management” of Equestrian SA within the meaning of the SD Act;

(c)    Ms Crauford was a member of Equestrian SA; and

(d)    Equestrian SA was a “club” for the purposes of the SD Act.

84    There is no dispute that Mr Thomas was a member of the Jumping Committee of Equestrian SA or that Ms Crauford was a member of Equestrian SA. There is also no dispute that Equestrian SA was, at the relevant time, an association of not less than 30 persons associated together for sporting purposes, and that it provided and maintained facilities, in whole or in part, from the funds of the association.

85    Mr Thomas denies that s 28K of the SD Act applied to him for two reasons. First, he submits, Equestrian SA is not a “club” within the definition in s 4(1) of the SD Act (set out at [80] above), because it was not an association that “sells or supplies liquor for consumption on its premises”.

86    Secondly, Mr Thomas submits, he was not a member of “the committee of management” of Equestrian SA within the meaning of s 28K of the SD Act.

87    Mr Thomas adduced evidence from the chair of the Board of Equestrian SA, Wendy Schaeffer-Macdonald, who deposed that, between 25 October and 5 December 2020, the only premises of Equestrian SA were at an address in Mt Barker, and that Equestrian SA did not sell or supply liquor for consumption on those premises in that period. Her evidence was not challenged.

88    In support of her contention that Equestrian SA was a “club” for the purposes of the SD Act, Ms Crauford adduced evidence from Andrew Paech, who is a life member of Equestrian SA and a member of the Board of Equestrian SA.

89    Mr Paech’s evidence was expressed in fairly general terms. He deposed to the fact that he had been involved in arranging Equestrian SA-affiliated events and competitions. He deposed to a general practice of Equestrian SA hiring premises for the purpose of hosting events, award shows and other functions. His evidence was that such hired premises would often have bar facilities and that liquor was available for purchase at functions and events at such premises.

90    Through Mr Paech, Ms Crauford tendered a video that had been posted by the South Australian State Jumping Championships Facebook page, which depicted an event held at the Mt Pleasant Showgrounds in 2024. The video included footage of a pavilion, referred to by Mr Paech as the “VIP tent”, that was hired by Equestrian SA. Mr Paech deposed that Equestrian SA would supply liquor to VIP guests and officials at annual competitions and events, free of charge, within a pavilion such as that shown in the video, or in a designated area inside premises hired by Equestrian SA, or would make liquor available to purchase at those events. Mr Paech deposed that Equestrian SA used the clubrooms located at the Mt Pleasant Showgrounds to hold a dinner for the Championships in 2024. During cross-examination, Mr Paech could not say whether Equestrian SA had ever applied for or obtained temporary liquor licences for the purpose of providing or selling liquor at any of these events.

91    Exhibited to Mr Paech’s affidavit are “claims for reimbursements of expenses” and a copy of a receipt recording the purchase of liquor to the value of $147.98 from a licensed bottle shop. Mr Paech deposed that the forms were required for reimbursement by Equestrian SA and that they were evidence of liquor purchased on behalf of Equestrian SA for the VIP tent at the State Jumping Championships in 2019.

92    I accept the uncontradicted evidence of Mr Paech that liquor was supplied to members of Equestrian SA at the VIP tent at the Mt Pleasant Showgrounds in 2024 and that this was a repeated practice that had occurred each year at certain events. I am prepared to assume that the liquor supplied at the VIP tent can be said to have been “supplied” by Equestrian SA in the relevant sense, in that Equestrian SA arranged for its supply to members of Equestrian SA.

93    Mr Thomas points to the fact that Equestrian SA has never held a liquor licence as evidence that it did not sell or supply liquor from its premises. Ms Crauford accepts that Equestrian SA did not hold, and may never have held, a liquor licence, but submits that that is not conclusive of whether it “sells or supplies liquor for consumption on its premises”. The parties’ submissions do not address in detail the liquor licensing regime that applies in South Australia or the circumstances in which alcohol could lawfully be sold or supplied for consumption on premises. It seems clear enough, however, that there may be circumstances in which a person may supply (at least) alcohol for consumption on “its premises” despite that person not holding a liquor licence. I accept the fact that Equestrian SA does not hold (and has not held) a liquor licence is not necessarily determinative of the question of whether it “sells or supplies liquor for consumption on its premises” within the meaning of s 28K of the SD Act. The fact that a particular club does hold a liquor licence in relation to particular premises that it owns or occupies may support an inference that it does sell or supply alcohol from those premises. But it may also be possible for a club to arrange its affairs in such a way that it is lawfully able to, or in any case does in fact, sell or supply alcohol from “its premises” despite not itself being the holder of a liquor licence.

94    However, for the reasons that follow, I do not accept that the supply of alcohol from the VIP tent should be characterised as Equestrian SA selling or supplying alcohol for consumption on “its premises”.

95    The purpose of defining “club” for the purposes of the SD Act, and in particular for the purposes of s 28K, in such a way as to limit it to an association that “sells or supplies liquor for consumption on its premises” is not obvious. It is evident that the requirements that a club have at least 30 members, that it provide and maintain “its facilities” from the funds of the association, and that it sell or supply liquor for consumption on “its premises”, are designed to place limits on the operation of s 28K. The nature of those limits is such that they have the capacity to produce apparently arbitrary distinctions between organisations that fall within the definition of “club” and those that do not. Two sports clubs that are otherwise very similar may be treated differently for the purposes of the SD Act, depending on, for example, whether they operate a clubhouse that serves alcohol to members at the end of a day’s sporting activities or whether their members instead regularly meet at a local pub. I conclude that consideration of the purpose of s 28K does not assist much in identifying the limits of the expression “sells or supplies liquor for consumption on its premises”.

96    I accept that the word “premises” can have a relatively broad meaning; it need not refer to a single or entire parcel of land but may refer, for example, to a particular building. There is no reason to give the word “premises” a confined meaning and, although the purpose of the liquor supply requirement in s 28K is opaque, it is difficult to think that any purpose would be served by giving the word “premises” a narrow or technical meaning.

97    The relevant statutory expression is not just “premises” but “its premises”. The use of the genitive pronoun, “its”, is indicative of the need for a relationship between a club and a place which is sufficiently enduring that the place can be characterised as the club’s premises. This is suggestive of ongoing or permanent occupation. Whether a particular place has the necessary connection is ultimately a matter of fact and degree; the concept of “its premises” need not be limited to premises that are owned by a club. Properly understood, the concept extends to premises that are leased by a club, or to other premises that are regularly occupied by the club on an ongoing basis. There is no evident basis for a suggestion that each club can have only one place that is “its premises”.

98    However, I do not consider that the fact that a club occasionally hires a tent or a building for one day at a time, on particular and limited occasions, supports the conclusion that the tent is “its premises” in the relevant sense.

99    I do not accept that, in respect of Equestrian SA, the supply of alcohol at the VIP tent is properly characterised as supply for consumption on “its premises”. The evidence before me only establishes that there are up to a few events each year at which Equestrian SA supplies alcohol, and those events take place at venues that are not owned or generally occupied by Equestrian SA but are hired or otherwise used by it only for the purpose of those specific events. I do not consider that these circumstances support the conclusion that Equestrian SA is properly characterised as a club that supplies liquor for consumption on its premises.

100    I do not accept Ms Crauford’s submission that the concept of “its premises”, in relation to a club, is analogous to the concept of a “workplace” in the SD Act. The submission was that the concept of a “workplace” is given a broad meaning, encompassing “premises of clients, suppliers, associated businesses, conference halls and other venues where work functions are held and … transportation vehicles during work related travel”, because “[t]he underlying policy objective [of the SD Act] is accommodated by such a construction”: Ewin v Vergara (No 3) (2013) 307 ALR 576; [2013] FCA 1311 (Ewin) at 585 [38]. However, the concept of “its premises” does not serve an equivalent function in s 28K of the SD Act as the concept of a “workplace” in (the pre-amendment version of) s 28B(6). Section 28B(6) made it unlawful for a workplace participant to sexually harass another workplace participant at a place that was a workplace of either or both of those persons; in contrast, the sexual harassment prohibited by s 28K is not sexual harassment that occurs at a place that is the premises of a club.

101    For these reasons, in my view, Ms Crauford has not established that Equestrian SA was a “club” as defined for the purposes of s 28K of the SD Act. It follows that Mr Thomas’s conduct amounting to sexual harassment was not unlawful by reason of s 28K.

102    In light of this conclusion, it is not necessary to decide whether Mr Thomas’s membership of the Jumping Committee of Equestrian SA meant that he was a member of the “committee of management” of Equestrian SA for the purposes of s 28K.

103    It is also unnecessary to decide whether Mr Thomas’s membership of the Jumping Committee had the consequence that he was an “officer” of Equestrian SA (potentially relevant to the application of s 28K provided for in s 9(14) of the SD Act), or whether any of his conduct which was alleged to amount to sexual harassment could be characterised as conduct done in connection with his duties as an officer of Equestrian SA. The evidence does not establish that he was an “employee” of Equestrian SA.

Section 28B(3) – person seeking to become a contract worker

104    Section 28B of the SD Act, as in force at the relevant time, provides:

28B Employment, partnerships etc.

(1)    It is unlawful for a person to sexually harass:

(a)    an employee of the person; or

(b)    a person who is seeking to become an employee of the person.

(2)    It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.

(3)    It is unlawful for a person to sexually harass:

(a)    a commission agent or contract worker of the person; or

(b)    a person who is seeking to become a commission agent or contract worker of the person.

(4)    It is unlawful for a commission agent or contract worker to sexually harass a fellow commission agent or fellow contract worker.

(5)    It is unlawful for a partner in a partnership to sexually harass another partner, or a person who is seeking to become a partner, in the same partnership.

(6)    It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of either or both of those persons.

(7)    In this section:

place includes a ship, aircraft or vehicle.

workplace means a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.

workplace participant means any of the following:

(a)    an employer or employee;

(b)    a commission agent or contract worker;

(c)    a partner in a partnership.

105    Ms Crauford’s pleaded case refers to s 28B(3) and (5). However, there is no suggestion that Ms Crauford was, or was seeking to become, a partner in a partnership with Mr Thomas, and the reference to s 28B(5) appears to have been included by mistake; the drafter of the pleading seems to have had in mind the current version of s 28B(5).

106    The only provision on which Ms Crauford’s submissions ultimately place reliance is s 28B(3)(b). The remaining subsections of s 28B can therefore be put to one side. There is no suggestion that Ms Crauford was engaged by Mr Thomas as a “commission agent”, nor that she was seeking to become a “commission agent”. The only issue is whether Ms Crauford was a “contract worker”, or a “person seeking to become a contract worker”, of Mr Thomas.

107    The parties conducted the trial with a general awareness that s 28B had been the subject of legislative amendment since the events the subject of these proceedings. However, the opening and closing submissions of both parties were advanced on the incorrect assumption that the concept of a “worker” in a business or undertaking was relevant to the operation of s 28B(3). In the version of s 28B that is now in force, there are several provisions (including s 28B(3)) which operate by reference to the concept of a worker. In the SD Act as now in force, the term “worker” is defined in s 4(1) to have the same meaning as in the Work Health and Safety Act 2011 (Cth) (WHS Act). Section 7(1) of the WHS Act states that “a person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking”. However, in the period relevant to the conduct that is the subject of these proceedings, the expression “worker” was not used in s 28B and was not defined by reference to the WHS Act (or at all).

108    After the evidence and closing submissions had been completed, the Court invited the parties to provide supplementary written submissions in relation to the effect of s 28B of the SD Act as in force at the time of the events the subject of the claim, noting that s 28B(3) had been amended since those events, and that both parties appeared to have addressed the Court on the basis of the current s 28B(3). Ms Crauford’s supplementary submissions acknowledge some of the differences between s 28B(3) as now in force and s 28B(3) as in force at the relevant time, but they do not directly address the critical distinction between a “worker” (as now defined) and a “contract worker” (as then defined).

109    Given that Ms Crauford’s case continues to rely on s 28B(3) as in force at the time of Mr Thomas’s conduct, she must be understood to contend that she was relevantly a person who was “seeking to become a … contract worker” of Mr Thomas.

110    “Contract worker” is defined in s 4(1) of the SD Act in the following terms:

contract worker means a person who does work for another person pursuant to a contract between the employer of the first-mentioned person and that other person.

111    Importantly, “contract worker” in its defined sense does not include a person who is engaged directly by another person pursuant to a contract for services. In order for Ms Crauford to be a “contract worker” in the relevant sense, she would need to be employed by an employer who was not Mr Thomas, and would have to perform work for Mr Thomas pursuant to the contract of employment with her employer. There is no evidence that Ms Crauford was seeking to enter into an arrangement of that kind. In fact, the Facebook messages suggest that, to the extent that Ms Crauford contemplated the possibility of a working relationship with Mr Thomas in the future, what she was considering was a direct contractual relationship either with Mr Thomas himself or with the company that she understood him to own, SSH.

112    The only basis on which Ms Crauford could be “seeking to become a … contract worker” within the meaning of s 28B(3) would be if she were an employee of another person and was seeking, in her capacity as that other person’s employee, to perform work for Mr Thomas or SSH. There was no evidence that Ms Crauford was an employee of any other person, and it is clear that, insofar as she had discussions with Mr Thomas, it was on the basis that any work she performed would either be performed for him or for SSH.

113    It follows that the evidence does not establish that Ms Crauford was “a person who [was] seeking to become a … contract worker of” Mr Thomas in the sense that is relevant to the operation of s 28B(3).

114    It might be thought surprising that the definition of “contract worker” was limited in this way. Many of the apparent gaps in the coverage of s 28B appear to have been addressed by amendments that were made by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth), which came into operation only after the events the subject of the present proceedings.

115    Ms Crauford also submits that she performed certain work for Mr Thomas on a voluntary basis. Ms Crauford submits that the concept of a “worker” extends to a person who performs voluntary work. While I accept that that would appear to be so under s 28B of the SD Act in its current form (having regard to the definitions of “worker” in s 4(1) of the SD Act and in s 7 of the WHS Act), s 28B(3) as in force at the time relevant to the conduct the subject of these proceedings referred not to a “worker” but to a “contract worker”. As explained above, Ms Crauford was not seeking to become a “contract worker”.

116    For these reasons, the relationship between Mr Thomas and Ms Crauford was not a relationship of a kind to which s 28B(3) of the SD Act (as in force at the relevant time) applied.

Section 28B(1) – person seeking to become an employee

117    Ms Crauford’s submission that she was seeking to become a “worker” of Mr Thomas suggests that a potential question could also have arisen as to whether she was a person who was seeking to become an “employee” of his, within the meaning of s 28B(1). Although the word “employee” is not defined in the SD Act, the related word, “employment”, is defined in s 4(1) as follows:

employment includes:

(a)    part‑time and temporary employment;

(b)    work under a contract for services; and

(c)    work as a Commonwealth employee.

(Emphasis added.)

118    The words “employer” and “employee” are other grammatical forms of the defined term “employment” and, as such, should be understood to be used with a corresponding meaning: Acts Interpretation Act 1901 (Cth), s 18A. It follows that it is at least arguable that the word “employee”, as used in s 28B(1), should be understood as including a person who works under a contract for services, and the expression “a person who is seeking to become an employee of the person” in s 28B(1)(b) should be understood as including a person who is seeking to become engaged by the person “under a contract for services”.

119    In the afternoon of 2 December 2020, while in Sydney, Mr Thomas and Ms Crauford had a conversation in person in which Mr Thomas again referred to the prospect of Ms Crauford working in his business. Later that night when Ms Crauford was in her bedroom, starting at 11.39pm, the following exchange of Facebook messages occurred:

120    Ms Crauford’s evidence in cross-examination was not that she was seeking to be engaged as an independent contractor, but that she was “keeping [her] career options open”, particularly having regard to the possibility that the grant of her visa to travel to the United States might be delayed or denied. On the basis of this evidence, which I accept, I do not think it could be concluded that Ms Crauford was “seeking” to be engaged as an independent contractor.

121    Ms Crauford originally pleaded that Mr Thomas’s conduct was unlawful by reason of s 28B(1) of the SD Act, on the basis that she had been seeking to become an employee of, or contracted worker for, Mr Thomas. However, Ms Crauford subsequently amended her pleading to remove the reference to s 28B(1) and to refer instead to s 28B(3) and (5), only. The result is that Ms Crauford’s case, as pleaded, does not rely on s 28B(1), and a case based on that provision was effectively disavowed. In these circumstances, it is doubtful that the Court could hold that Mr Thomas’s conduct was unlawful on the basis of s 28B(1), even if I were satisfied that that provision was engaged on the facts. In any event, for the reasons explained above, I am not satisfied that Ms Crauford was seeking to be engaged as an independent contractor (and thus to become an “employee” in the extended sense suggested by the definition of “employment” in s 4(1)).

Section 28G(1) – in the course of offering to provide goods, services or facilities

122    Ms Crauford relies on s 28G(1) of the SD Act. She contends that Mr Thomas sexually harassed her in the course of his offering to provide goods, services or facilities to her. Section 28G(1) is in the following terms:

28G Goods, services and facilities

(1)    It is unlawful for a person to sexually harass another person in the course of providing, or offering to provide, goods, services or facilities to that other person.

…

123    Section 4(1) of the SD Act contains a non-exhaustive definition of “services”, as follows:

services includes:

(a)    services relating to banking, insurance and the provision of grants, loans, credit or finance;

(b)    services relating to entertainment, recreation or refreshment;

(c)    services relating to transport or travel;

(d)    services of the kind provided by the members of any profession or trade; and

(e)    services of the kind provided by a government, a government authority or a local government body.

(Emphasis added.)

124    A similar definition of “services” applies for the purposes of the Disability Discrimination Act 1992 (Cth): see s 4(1) of that Act. In that context, it has been said that beneficial legislation is to be generously construed and “the word ‘services’ includes all matters which ordinarily fall within that notion”: Rainsford v Victoria (2005) 144 FCR 279; [2005] FCAFC 163 at 296 [54] (Kenny J; Hill and Finn JJ agreeing), citing IW v City of Perth (1997) 191 CLR 1 at 11-12 (Brennan CJ and McHugh J), 22-3 (Dawson and Gaudron JJ), 27 (Toohey J), 39, 41-2 (Gummow J), 69-70 (Kirby J).

125    Notably, the prohibition imposed by s 28G(1) applies only to harassment that occurs “in the course of” providing, or offering to provide, goods, services or facilities to the other person. It does not apply to all conduct of a person who has provided, or who from time to time provides, goods or services to the other person. In this respect, the language of s 28G(1) stands in contrast to some of the other provisions. For example, sexual harassment between an employer and their own employee is always prohibited, even where it occurs outside of the employment context: s 28B(1)(a). It may be inferred that this reflects a policy choice that the protection against sexual harassment that is conferred by the SD Act should extend to all conduct where a particular kind of relationship exists between two persons, but should only apply to conduct that occurs in the course of certain other kinds of dealings.

126    That does not mean that s 28G(1) is to be given a narrow or technical operation. Section 28G(1) does not require an approach to characterisation that assumes that each relationship, or each interaction between people, has a single or predominant character. Human relationships are complex. In some cases, a relationship may have multiple facets and there is no difficulty in principle with a conclusion that conduct has occurred in the course of providing services, even though the relationship has other dimensions and it could also be said that the conduct occurred in the course of a friendship. On the other hand, the mere fact that a person has offered services to another does not necessarily mean that every interaction they have acquires the character of conduct “in the course of” offering to provide services. Ultimately, it is necessary to consider the circumstances in which particular conduct occurs to determine whether it is right to characterise it as conduct that occurs in the course of providing, or offering to provide, services.

127    Ms Crauford relies upon the following passages from the judgment of the Full Court in Weir v Telstra Ltd (2023) 301 FCR 261; [2023] FCAFC 196 (Weir) (at 275 [80], 277-8 [90]-[91] and 278 [93]):

We are unable, with respect, to accept the primary judge’s construction of s 28G(1) of the SDA. Nothing in the language of the provision suggests that sexual harassment cannot occur both in the course of providing services and in the course of a dispute unrelated to the provision of services. Neither does the context suggest such a dichotomy. It is evident that sexual harassment may occur both in the course of providing services and in the course of some dispute, or for some other motivation, unrelated to the services provided. Under s 3(c), an object of the SDA is to eliminate, so far as is possible, sexual harassment in specified areas of public activity. In this context, it is most unlikely that the legislative intention could be to remove sexual harassment from the reach of s 28G(1) merely because it also occurs in the course of a private dispute.

…

The respondents argue that the only connection alleged by the appellants between the second respondent’s sexual harassment and his provision of services was that the services gave him the opportunity to engage in the sexual harassment. They submit that mere opportunity cannot be enough to establish that the sexual harassment occurred “in the course of providing ... services”. Certainly, in Prince Alfred College Inc v ADC (2016) 258 CLR 134, when considering in what circumstances an employer can be vicariously liable for an intentional tort committed by an employee, the High Court held at [81] that the fact that employment affords an opportunity for the commission of the wrongful act does not of itself mean it was committed in the course or scope of employment.

However, s 28G(1) of the SDA provides a quite different context. Even assuming the only connection between the sexual harassment and the provision of services is the opportunity it provided to engage in the harassment, it seems at least arguable that the creation of such an opportunity provides sufficient connection to allow it to be determined that the sexual harassment occurred “in the course of providing ... services”. In addition, in Prince Alfred College, it was held that other relevant factors include the authority, power, trust and control that the harasser has in relation to the victim, and whether the harasser takes advantage of their position. In this case, the appellants allege that it was the second respondent’s provision of services which allowed him access, power and control over their personal information and that he took advantage of his position. These matters also suggest it is reasonably arguable that the sexual harassment occurred in the second respondent’s provision of services.

…

It is not difficult to think of examples of other cases which might test the width of the expression “in the course of providing … services”, and which might bear some comparison. One example is where a person has provided services to a customer in the past and months later accesses her phone number from his records and proceeds to sexually harass her. Another is where a person is engaged to provide a service to a customer but does not actually embark on any work at all and instead sexually harasses the customer. In each case it seems arguable that in its context, the phrase “in the course of providing … services”, is sufficiently wide to cover the conduct. The point to be made is that it is no easy task to define the limits of “in the course of providing … services” under s 28G(1) of the SDA and, even if that can be done, application of the limits may prove difficult.

128    The Full Court in Weir was only considering the operation of s 28G(1) for the purposes of an appeal against the dismissal of an application for leave to file an application under s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). That is why their Honours only decided that it was “reasonably arguable” that the sexual harassment in that case occurred in the course of the provision of services; they did not determine whether that was the conclusion that should be reached in that case. As their Honours said, the definition and application of the limits of “in the course of … providing … services” under s 28G(1) may be difficult in some cases.

129    Weir provides useful general statements of principle. However, the circumstances in which the relationship between Mr Thomas and Ms Crauford arose and developed are quite different from those that were under consideration in Weir. The relationship between Mr Thomas and Ms Crauford initially arose from their common involvement in show jumping and took the form of friendly discussion and mutual assistance.

130    In the course of a relationship, a person may do, or offer to do, something for another person which is beneficial or valuable to them, but it may not always be appropriate to characterise this as “providing services” – even if the thing that is done is something that could be provided as a “service”. For example, a person who orders a drink at a bar and delivers it to a friend seated at a table would not be acting “in the course of providing … services” for the purposes of s 28G(1), even though an employee of the bar who performed the same act would be providing a service.

131    Ms Crauford submits that “the ability of Mr Thomas to offer the services, because of his position of authority as a coach of equestrian show jumpers, and the business he conducted, provided the platform for him to then sexually harass Ms Crauford”. Insofar as Mr Thomas offered coaching and services, this was part of his broader attempt to engage with Ms Crauford and to facilitate the continuation and expansion of their relationship, including in ways that would enable him to spend more time with her. It is true that the conduct amounting to sexual harassment took place in the context of that broader relationship, even if it does not seem quite apt to isolate the offering of services as providing the “platform” for him to then sexually harass her.

Did Mr Thomas offer to provide goods, services or facilities to Ms Crauford?

132    Ms Crauford relies on a number of Facebook messages from Mr Thomas which she contends amount to instances of Mr Thomas making “persistent offers to [Ms Crauford] to provide goods (including horses), mentorship, support, access to facilities and business, employment or competition opportunities”.

133    The particular messages on which Ms Crauford relies are as follows (emphasis added):

(1)    On 1 November 2020:

(a)    “You’re such a naturally talented rider too”;

(b)    “I wish you lived closer and I wish you were staying.”;

(c)    “I’d love to work with you and fix everything. I could have you winning World Cups”; and

(d)    “I’m serious too”.

(2)    On 2 November 2020:

(a)    “Everything is obviously your decision. But I’d love to get you a good already going horse here and see what happens. I will help you.”;

(b)    “I want to help you x”;

(c)    “You deserve it”; and

(d)    “That’s nothing [ie, the help Mr Thomas had provided Ms Crauford to date]. I know where I can take you”.

(3)    On 3 November 2020:

(a)    “I am serious about you being a good rider and serious about you may be able to help SSH grow”;

(b)    “We actually really have to talk”;

(c)    “Employment. Business”;

(d)    “I have horses that need training. I would buy well bred stuff and spend money if I had someone like you to train them. I have shop hours if you wanted as well”;

(e)    “If you were committed here I certainly would get some serious horses.”;

(f)    “That’s how it should be. I can see that you would make the most of opportunities as well. You would work hard at achieving what you want in life.”; and

(g)    “There’s so many opportunities training students here too. I turn a lot away.”

(4)    On 6 November 2020: “They all know I can make something out of nothing, and super cool under pressure. It’s all about the mind and I am good at getting people in the right mind. Your journey has just begun.”

(5)    On 9 November 2020:

(a)    “I need you as a rider here and get lots of nice horses. But also to get you to as far as you can. I know where you can go with your riding.”; and

(b)    “Obviously the choice is yours but I’m so keen to do this. We work well together, you’re talented.”

(6)    On 10 November 2020: “…we could have the world at our feet. I think you’re too talented to not see where you can go. I would be 100% behind you”.

(7)    On 12 November 2020:

(a)    “If you were to come here I’d spend on good well bred stuff.”; and

(b)    “You’re decision 100% and I’ll back it either way… I’m on the search”.

(8)    On 17 November 2020:

(a)    “I am super keen on getting a real team again”;

(b)    “I want you to join me obviously!!”;

(c)    “Please, I will get horses. If you did stay and we’re here, like I said I’d put you on this horse for Australian Champs”;

(d)    “I would do anything to keep you here”; and

(e)    “You’re obviously first choice and the opportunity is there. As soon as you say you aren’t interested, I’ll try to find someone. I just know the opportunities out there for us as a team”.

(9)    On 20 November 2020: “… are you interested in moving up here say after Xmas?”

134    Although not specifically relied on in her pleaded case, I note that, additionally, on the morning of 8 November 2020, Mr Thomas sent a screenshot of a message he had received from another person which said that they were looking for two horses suitable for “juniors eventing”. He followed this up with a message to Ms Crauford that read, “I have so many of these messages all the time. If you weren’t going to America we could make a lot of money selling horses[.]”

135    Drawing a line between activities that friends or acquaintances might undertake together which involve elements of mutual or reciprocal benefit, or vague general proposals about possible future activity, on the one hand, and “offers” for the provision of goods, services or facilities, on the other, is not always easy. It does not follow that that line need not be drawn, or that everything Mr Thomas said or did with respect to Ms Crauford can simply be characterised as having been done in the course of offering to provide her with goods, services or facilities. On the other hand, it also does not follow that, just because the relationship had non-commercial elements, some or all of the conduct engaged in by Mr Thomas could not be characterised as having occurred in the course of offering to provide goods, services or facilities.

136    As can be seen, the messages identified above referred to various possible activities that Ms Crauford might be involved in with Mr Thomas. They formed part of a general pattern of behaviour on the part of Mr Thomas in which he repeatedly suggested possibilities that would enable him to further develop his personal relationship with Ms Crauford. Many of his comments were fairly transparently directed to flattering Ms Crauford or to improving Mr Thomas’s prospects of spending time in her physical presence. This case is different from Weir in that, here, many of Mr Thomas’s suggestions about the ways he could help Ms Crauford seem to have been directed to advancing his personal relationship with her, as opposed to a situation where a commercial supply of goods or services provided an independent and pre-existing setting in which sexual harassment then took place. That is not to say that any offer to provide goods, services or facilities can be ignored; however, it is relevant to the assessment of whether particular conduct should be characterised as occurring “in the course of” Mr Thomas’s offering to provide Ms Crauford with goods, services or facilities.

137    It is possible to identify several interrelated strands in the possibilities that Mr Thomas was encouraging Ms Crauford to consider.

138    First, particularly in the italicised messages at [133] above, Mr Thomas was speaking of helping her to improve her riding. This was a service of a kind that Mr Thomas provided to other riders for a fee. (It is not entirely clear on the evidence, or from the agreed facts, whether he provided this service through the business SSH, or only in an individual capacity.) Although there was no discussion of commercial terms, the fact that it was a service of a similar kind to one that he provided on a commercial basis is a consideration that weighs in favour of characterising this as the offer of a provision of services.

139    Secondly, although it was not the focus of the messages on which Ms Crauford relies for the purpose of establishing that Mr Thomas was a person who was offering to provide services to her, it appears that Mr Thomas may also have been suggesting that he would like to organise a team of riders. This was not directly one of the activities of his business, but it was connected with the offering of coaching to Ms Crauford and tended to suggest the possibility of a wider context in which he might provide like services to a team of riders.

140    Thirdly, he was suggesting that he would give Ms Crauford access to a “good horse” or horses to ride, apparently with a view to improving her competition prospects. Mr Thomas’s business activities included selling horses or sourcing horses for people to purchase, but I am not confident that this is what he had in mind. Rather, at times he seemed to be suggesting that Ms Crauford might sell Teddy and use the proceeds to buy a good horse. At other times he seemed to be suggesting that he might acquire a good horse and make it available for Ms Crauford to ride or, perhaps, that he would acquire good horses for the purpose of selling them and Ms Crauford would ride them in the meantime while they were in his possession. Considering the overall effect of the messages on this topic, I do not think Mr Thomas was offering a horse or horses for sale to Ms Crauford.

141    Fourthly, Mr Thomas was encouraging Ms Crauford to consider moving up from Mt Gambier to live nearer to him, and was proposing that she might work for SSH. This was part of an attempt by him to encourage Ms Crauford to remain in Australia (rather than travelling to the United States) and to move closer to him. His messages contemplated that she might work for him, or for SSH, training horses, as well as potentially training students and working in the shop.

142    I accept that Mr Thomas’s messages should be characterised as offering to provide services to Ms Crauford. The proposal that Mr Thomas act as Ms Crauford’s coach was first made (at least as far as the Facebook messages are concerned) in Mr Thomas’s message in the evening of 1 November 2020 in which he said, “I’d love to work with you and fix everything. I could have you winning World Cups” followed by, “I’m serious too”. On the following day, he commented that he was “not just someone” and had “helped and trained a lot of people”, emphasising both that he was seriously offering to coach Ms Crauford and that he had the expertise and experience to provide such services.

143    There was no discussion of payment in exchange for this service. I accept that the SD Act, when it speaks of services, does not include every gratuitous benefit provided in the course of a friendship or between members of any voluntary association. However, there is nothing in the SD Act that limits the concept of offering goods, services or facilities to services for which payment is in fact demanded or rendered. The absence of any discussion of payment is one factor which I accept is relevant to the task of characterisation, and which tends against characterising Mr Thomas’s conduct as an offer to provide services. However, there are other considerations that support that characterisation.

144    The provision of coaching in relation to show jumping was a service that Mr Thomas was peculiarly placed to provide because of his experience, and it was a service that he did in fact provide to other riders in exchange for payment. The kind of coaching and assistance that he was proposing to provide Ms Crauford is fairly characterised (in the words of the definition of “services” in s 4(1) of the SD Act) as “services relating to … recreation” and “services of the kind provided by the members of any profession or trade”. The proposal he was making was more serious than the kind of general mutual assistance or informal mentoring that friends in the same sport might ordinarily be expected to provide each other.

145    The statutory concept of “in the course of … offering to provide services” does not require that there be a contractual offer (and, plainly enough, nothing Mr Thomas said amounted to a contractual offer) or even a concrete arrangement. It is evidently intended to convey roughly the converse of the expression in s 28G(2), “seeking, or receiving, goods, services or facilities”.

146    I would regard Mr Thomas’s proposals as sufficiently serious (noting that he repeatedly emphasised that he was serious) and persistent to amount to offering to provide coaching services to Ms Crauford. I acknowledge that his offering of these services was part of a wider-ranging discussion that included other elements, but I do not think that detracts from the conclusion that he did offer to provide her with services. On the contrary, the prospect of potential financial or other benefits to both Mr Thomas and Ms Crauford suggests more of a transactional flavour and lends weight to the conclusion that what Mr Thomas was proposing should be characterised as involving the offering of services.

147    Ms Crauford’s evidence in relation to Mr Thomas’s statement, in his Facebook message sent on 1 November 2020, was that she formed the impression that Mr Thomas was inviting her to consider being his student. I accept Ms Crauford’s evidence that that was how she understood the message. It is consistent with her own response, to the effect that she had never had a full-time coach. In my view, her understanding also accords with the objective meaning of the message in context. Further Facebook messages sent on each of 2, 6, 9, 10 and 17 November 2020 were consistent with, and tended to reinforce, that understanding of what Mr Thomas was proposing. They confirmed that he was continuing to hold open the suggestion that he was keen to provide coaching services to Ms Crauford.

148    The conclusion that Mr Thomas was offering (in the general sense I consider relevant to s 28G(1) of the SD Act) to act as Ms Crauford’s coach is also consistent with his own affidavit evidence. In commenting on Ms Crauford’s own commentary on the Facebook messages exchanged between them, Mr Thomas stated in his affidavit:

I note that in her statement at paragraph 25 Kate stated that she was uncomfortable with me implying that we were a team. Kate, in fact, was the first to imply that we were a team in one of her messages the day before. At paragraph 24 she states “I am no student to him, nor did I want to be under his guidance” yet at 20.06 on that day (1st November) she messaged me “I’d love to have a full time coach. I never have.”

149    This statement was directed to pointing out a feature of Ms Crauford’s evidence that Mr Thomas regarded as inconsistent with her own Facebook messages, for the purpose of discrediting her; but its present relevance is that it reinforces that the mutual understanding of Mr Thomas and Ms Crauford as to the effect of the Facebook messages between them accorded with what I have found was their objective meaning.

150    The evidence does not support a finding that Mr Thomas had, in the relevant period, been providing coaching services to Ms Crauford. Insofar as the evidence reveals what actually occurred outside of the Facebook messages, it seems more consistent with the kind of informal discussion, assistance and mentoring that may occur between acquaintances with a common interest in the sport of show jumping. While the line is not an easy one to draw, I do not think the SD Act is concerned with the provision of services of that kind. The very fact that Mr Thomas repeatedly suggested in the Facebook messages that he could help Ms Crauford to become a better rider in the future (and insisted that he was “serious”) shows that he was proposing, for the future, a more serious kind of coaching than he had been providing in the week since they had met. So did his express statement on 2 November 2020, in response to Ms Crauford’s message thanking him for the help he had already given her: “That’s nothing. I know where I can take you”.

151    Up until 1 November 2020, Mr Thomas had not offered to provide Ms Crauford with goods, services or facilities. I find that, even if any of his conduct up to this point was within the definition of sexual harassment, s 28G(1) of the SD Act did not apply to it.

152    From 1 November 2020 onwards, the communications between Mr Thomas and Ms Crauford all proceeded on the basis that Mr Thomas was proposing that he would or could provide Ms Crauford with coaching in the future. Although there were only particular messages that evidenced Mr Thomas’s “offering” to provide services to Ms Crauford, the relationship and communication between them continued on the footing that Mr Thomas was continuing to entertain the idea of his providing coaching to Ms Crauford at some point in the future. In fact, he was attempting to persuade Ms Crauford to remain in Australia, including by reference to his willingness to assist her with her riding, as part of a package of proposed or possible circumstances which he intended to be attractive to her. Mr Thomas repeatedly returned to the idea that he could “help” Ms Crauford, and this must be understood as meaning (at least) the offer to coach her to improve her riding.

153    This should be understood as a standing proposal that commenced on, and continued from, 1 November 2020. There is no evidence that Mr Thomas said or did anything to withdraw the general offer of coaching to Ms Crauford. It remained as a prospective proposal that was part of the continuing and evolving relationship between Mr Thomas and Ms Crauford. In these circumstances, it would be an artificial, and unduly narrow, approach to hold that only Facebook messages or conduct of Mr Thomas that were closely linked to the messages in which he made or reaffirmed the offers to provide Ms Crauford with services occurred “in the course of” offering to provide those services.

154    This is not a situation (as may sometimes arise) where a relatively clear line can be drawn between a particular context in which a person engages with a second person “in the course of” offering goods or services to them, and a distinct context in which the first person relates to the second person in a setting that is divorced from the offering of goods or services.

155    The situation that Mr Thomas’s conduct towards Ms Crauford was occurring “in the course of” his offering services to her continued up until, at least, the conversation in Sydney in which Ms Crauford expressed her concern that Mr Thomas had been implying that Ms Crauford was his student. That was on 4 December 2020. That effectively marked an overt rejection by Ms Crauford of Mr Thomas’s standing proposal that he might act as her coach in the future. There is no evidence that Mr Thomas persisted in any offer of coaching services after that. If it were necessary to decide, I would regard it as artificial to treat that conversation as a “hard” cut-off, however. Mr Thomas and Ms Crauford were in Sydney together as a consequence of the relationship between them up to that point, which included Mr Thomas’s offering to provide services to Ms Crauford. However, given the conclusion reached above about the effect given to the provisions of Division 3 of Part II, it is unnecessary to reach a concluded view as to whether any of Mr Thomas’s conduct on 4 and 5 December 2020 should be regarded as occurring otherwise than “in the course of” his offering services to Ms Crauford.

156    I shall now deal briefly with the remaining bases on which I understand it to be submitted that Mr Thomas was a person who was offering to provide goods, services or facilities to Ms Crauford. I do not find that s 28G(1) of the SD Act applied for any of these additional reasons.

157    Ms Crauford also submits that Mr Thomas offered to provide “goods” to Ms Crauford in the form of horses. I do not understand Mr Thomas to have been offering to buy horses for Ms Crauford or to supply horses for sale to her. Rather, what he seems to have been proposing was that he would make available to her, to ride, horses that he owned, or might acquire. It would seem that it was contemplated that that would occur either as part of her possible employment or as part of her competing in a team of riders that he organised or coached. I would not characterise this as an offer to provide goods.

158    Insofar as the messages on which Ms Crauford relies refer to the provision of business or employment opportunities, I do not accept that a proposal or offer of opportunities of those kinds falls within the relevant concept of “offering to provide goods, services or facilities”. The statements referred to in [133] above at paragraphs (3)(a), (b), (c), (d), (e) and (g) were directed to encouraging Ms Crauford to consider working for Mr Thomas or SSH in some capacity. The benefits that he identified as flowing to Ms Crauford were not services that he would provide her but descriptions of what he would do, and how she might benefit from those things, if she were performing work of that kind for him. This was not an offer to provide her with services in the relevant sense. Similarly, the statements in paragraphs (5)(a), (7)(a), and perhaps also (8)(c) and (d), seem to have been talking about getting “nice horses” in the event that Ms Crauford worked for Mr Thomas, and anticipating that a benefit to her of being employed or engaged in that capacity was that she would have the opportunity to ride those horses. He was not proposing a transaction in which he would provide her with services, but was speaking of what he would do to make employment by him, or otherwise working with him, attractive to her.

159    Ms Crauford’s pleaded case also refers to Mr Thomas, on 23 November 2020, arranging with Ms Crauford in person and over the telephone for her to collect Mr Thomas’s horse from Keith and exercise him for payment. That was a relatively discrete transaction that, if anything, involved Ms Crauford’s providing Mr Thomas with a service – a circumstance that could potentially be relevant to a claim based on s 28G(2). However, no such claim is advanced. In any event, none of the conduct said to amount to sexual harassment occurred in the course of or in connection with that transaction and I do not think it could be concluded that the broader relationship between Ms Crauford and Mr Thomas should be characterised as one in which she was a person who was providing him with services.

ASSESSMENT OF EVIDENCE

Approach to assessment of evidence and determining whether the allegations are proved

160    Ms Crauford bears the onus of proof in relation to each of the facts necessary to establish a contravention by Mr Thomas of any of the provisions of Division 3 of Part II of the SD Act.

161    In deciding whether I am satisfied that facts relevant to Ms Crauford’s case have been proved on the balance of probabilities, I am required to take into account the nature of the cause of action, the nature of the subject-matter of the proceeding and the gravity of the matters alleged: Evidence Act 1995 (Cth), s 140. The strength of the evidence necessary to establish facts on the balance of probabilities may vary according to the nature of what it is sought to prove: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-1 (Mason CJ, Brennan, Deane and Gaudron JJ). The gravity of the fact sought to be proved and of the potential consequences of making a finding of fact are relevant to “the degree of persuasion of the mind according to the balance of probabilities”: GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 at 471 [57] (Kiefel CJ, Gageler and Jagot JJ), quoting Rejfek v McElroy (1965) 112 CLR 517 at 521. I must only make a positive finding of any fact which Ms Crauford is required to prove if, taking these considerations into account, I “feel an actual persuasion of its occurrence or existence”: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 (Dixon J).

162    In this case, the content of the Facebook messages sent between Mr Thomas and Ms Crauford is objectively established by the tender of copies of the messages themselves. In relation to the conduct constituted by the sending of such messages, the issue between the parties is not whether conduct occurred but rather how those messages, or particular messages viewed in context, should be characterised.

163    The principles to which I have referred above in relation to the assessment of evidence are most relevant in my assessment of the evidence of Ms Crauford and Mr Thomas in relation to the factual matters which are in dispute. Most importantly, they include Ms Crauford’s evidence that, between 3 and 5 December 2020, Mr Thomas engaged in four distinct physical acts which he denies.

164    Although the parties had quite different submissions about how that conduct of Mr Thomas, if I were to find that it did occur, should be characterised in terms of its seriousness, I proceed on the basis that these allegations are potentially serious and I take that into account in assessing the evidence of Ms Crauford and Mr Thomas and in determining whether I am satisfied that the alleged conduct occurred on the balance of probabilities (see [161] above).

165    Ms Crauford also gave evidence that on two occasions she witnessed Mr Thomas behaving cruelly to his horse, Victor. Mr Thomas denies that he engaged in any such conduct. Again, I proceed on the basis that those are serious allegations that may potentially have serious consequences at least for Mr Thomas’s reputation. I take that into account in assessing the evidence about that alleged conduct, and in determining whether I am satisfied that it occurred.

Assessment of key witnesses

Ms Crauford

166    I have a strong degree of confidence that Ms Crauford was attempting to tell, and was telling, the truth in the evidence that she gave orally. She came across as intelligent and articulate. It was evident that she carefully listened to and considered the questions that she was asked, and was conscientiously attempting to give as accurate an answer as possible, even where it would have been apparent to her that the answer she was giving might be unhelpful to her case.

167    There are some differences between the evidence given by Ms Crauford orally under cross-examination and statements that appear in her evidence in chief, which was given by way of affidavit filed in advance of the trial. These differences do not cause me to doubt the truthfulness of Ms Crauford’s oral evidence. They generally involved Ms Crauford softening or qualifying her position in cross-examination compared with what was recorded in her affidavit. In relation to these issues, I accept her oral evidence in preference to her affidavit evidence.

168    In preparing her affidavit evidence, Ms Crauford provided commentary on the Facebook messages sent by Mr Thomas, and how they made her feel. Although I accept that she was attempting to accurately describe her feelings, her commentary on the messages was likely affected by the way that she felt about Mr Thomas in light of what had subsequently occurred. I think her analysis of the Facebook messages in her affidavit evidence was affected by some degree of reconstruction. For example, Ms Crauford stated that she was uncomfortable with Mr Thomas referring to the two of them as a “team” in one of his Facebook messages, even though she had used a similar expression to describe them in an earlier message. That is an example, I suspect, of Ms Crauford subsequently feeling discomfort about being associated with Mr Thomas and reconstructing her feelings about a particular message.

169    In some cases, Ms Crauford’s reactions in the Facebook messages themselves suggest that she took some of Mr Thomas’s comments in the spirit of light-hearted “banter”. However, going along with such messages in that way, particularly in a text-based conversation in which her responses need not have been entirely spontaneous, is not inconsistent with Ms Crauford feeling subjectively uncomfortable about their tone or content. Moreover, there are conspicuous examples of messages (or parts of messages) which Ms Crauford chose to ignore.

170    I accept that Ms Crauford may have overstated the impact of Mr Thomas’s conduct on her in some respects, particularly in her written evidence. She is likely to have attributed a higher level of offence to some of his Facebook messages in hindsight, when preparing her affidavit evidence. She accepted a more moderate characterisation of some of those messages in cross-examination. I do not find that Ms Crauford was dishonest in this respect. The whole course of events with Mr Thomas, including their acrimonious falling out in December 2020 and her belief that he had mistreated his horse, would have left her feeling more repulsed by him and this is likely to have affected her assessment of her feelings in retrospect.

171    Although I think Ms Crauford’s analysis of the Facebook messages in her affidavit evidence was affected by some degree of reconstruction, I was impressed with her candour in oral evidence when she was asked about particular messages, and I accept that her oral evidence about the way she felt about the Facebook messages was truthful.

172    The allegations of physical conduct by Mr Thomas in Sydney between 3 and 5 December 2020 are of conduct that was not outrageous or even indisputably sexual. The conduct alleged was not exaggerated. It involved Mr Thomas positioning his body close to Ms Crauford without touching her, standing and looking at her while wearing a towel, hugging her in circumstances where he could plausibly deny that the conduct was of a sexual nature, and touching her leg over her clothes on an occasion where, again, there was a plausible context for him to have done so non-sexually. I find Ms Crauford’s account of all these events to be inherently plausible. It is improbable that she would have confined her evidence to such relatively low-level conduct had she been setting out deliberately to make false accusations against Mr Thomas.

173    Ms Crauford’s evidence about the alleged physical conduct of Mr Thomas that is in dispute is also broadly consistent with the development of the relationship between Mr Thomas and Ms Crauford over time. From a consideration of the whole course of the exchange of the Facebook messages, it is possible to discern Mr Thomas gradually testing and pushing the boundaries of that relationship. The physical conduct of Mr Thomas which Ms Crauford alleges occurred in Sydney between 3 and 5 December 2020 is consistent with a similar testing of boundaries, in a physical way. I accept her evidence of those events.

174    I note that Mr Thomas suggested, in answer to questions put to him in cross-examination, that a motive for Ms Crauford bringing the present proceedings and making false allegations against him was that she had attempted to purchase Carl, the horse that she had viewed and ridden in Sydney when she was with Mr Thomas, but had been unsuccessful. There is no other evidence to support this assertion, and it was not relied on by Mr Thomas in his closing submissions.

175    Mr Thomas, in his affidavit, has pointed out other aspects of Ms Crauford’s affidavit evidence that he evidently considers discredit her. They do not cause me to doubt the truthfulness and accuracy of her evidence. For example, Mr Thomas stated that, had Ms Crauford witnessed him mistreat Victor as she alleged, she would have been obliged to report this misconduct to the Chief Steward or Technical Delegate. The evident point of this observation was to imply that the allegation was fabricated. However, Ms Crauford must have felt uncomfortable about what she had witnessed and concerned about Mr Thomas having involved her in it. It is quite understandable that she would have felt unable to report it, particularly given Mr Thomas’s apparent standing in the show jumping community (as she testified). Ms Crauford’s relatively contemporaneous conduct in confronting Mr Thomas about what she believed she had witnessed is only consistent with her holding a genuine belief that he had mistreated Victor. Ms Crauford was familiar with horses and the mistreatment of Victor that she described is not something she would be likely to have been mistaken about.

176    While there are some reasonable arguments to suggest that Ms Crauford has not been consistent in every aspect of her evidence across the several occasions on which she has given her account, I consider that she was a forthright witness. She was attempting to be as truthful as possible, and I find her to be generally reliable. Moreover, for the reasons I am about to explain, I do not consider it safe to rely on Mr Thomas’s evidence where it is self-serving, and I find that Ms Crauford’s evidence (particularly her oral evidence) is more likely than his to be correct where they are in conflict.

Mr Thomas

177    Mr Thomas is a decorated rider in the sport of show jumping. The agreed facts include that he was the first South Australian to win a World Cup Qualifier; has won nine World Cup Qualifiers and 40 top-five World Cup Placings; represented Australia in the Australian Showjumping Team at the Harare International Horse Show in Zimbabwe in 1996, where Australia won a gold medal; was long-listed for the 2000 Sydney Olympics; represented Australia at the 2003 World Cup Final in Las Vegas; has been Leading SA Rider of the Year eight times; has won, for various of his horses, the title of Leading SA Horse of the Year 11 times; has won the title of SA Champ at various SA Championships since 1998; has won the titles of Leading Rider Perth, Adelaide, Melbourne and Canberra Royals on numerous occasions; and has won the Grand Prix at the Adelaide, Sydney, Melbourne, Brisbane, Canberra and Perth Royal Shows on various occasions. During the relevant period, he was (due to his membership of the Jumping Committee) a selector for the Youth Development Program for which Ms Crauford had applied.

178    In some ways Mr Thomas gave the impression of being somewhat unsophisticated, but he is clearly not unintelligent. He carries on a successful, multifaceted business. His Facebook messages show that he has a good command of written English and social communication skills in that setting.

179    It was submitted for Ms Crauford that much of Mr Thomas’s evidence, as well as other statements made by him out of court, revealed a tendency to say whatever he thought would best suit his interests at that point in time. In my view there is considerable force in this submission, although I am not certain that all of the instances to which Ms Crauford pointed warrant that characterisation. There were, however, several instances of evidence given by Mr Thomas in which he refused to accept propositions despite the fact that they were, in my view, obviously true. In combination, I regard the following aspects of his evidence as damaging to his credibility.

180    An example of Mr Thomas’s evidence adversely affecting his credibility is his evidence in cross-examination in relation to a Facebook message that he sent to Ms Crauford on 4 November 2020. Ms Crauford had stated that she did not want to live permanently in the United States. Mr Thomas, over the course of the messages that followed, and amongst a discussion of the 2020 United States election, stated:

(a)    “You might meet a man of your dreams there”;

(b)    “You could have anyone you want.”; and

(c)    “But I’m saying you could be with any guy you want. You have not just the beauty, but everything that means the most. You’re just a good genuine and honest person.”

181    In relation to the last of these messages, Mr Thomas was cross-examined as follows:

Q.    It’s true, isn’t it, that you thought that Kate was beautiful?

A.    That was a – these are just expressions, yes.

Q.    Well, I understand their expressions, but what I’m asking you is that you thought Kate was beautiful?

A.    There’s a couple of ways, as in, a yeah, a beautiful person.

Q.    You also thought that she was sexually beautiful?

A.    Not sexually beautiful.

Q.    When you say in this message, “you have not just the beauty”, that’s referring to her physical appearance, isn’t it?

A.    Beauty and beautiful can be just a nice, genuine person.

Q.    Yes. You go on to say she’s a nice, genuine person?

A.    You can be a beautiful person.

Q.    Yes. Would you just listen to my question, you go on to say she’s a nice, genuine and honest person, but before that, you reference her beauty, and that was a reference to her physical appearance, wasn’t it?

A.    Not necessarily, no.

Q.    Well, it was a reference to her physical appearance, and you are now trying to reinvent that evidence, aren’t you?

A.    We were having a friendly conversation over the election.

Q.    You’re having a friendly conversation over the election, in which you are telling her that she is a beauty – she has the beauty; you accept that, don’t you?

A.    Not necessarily in that term, no.

Q.    So when you were saying she could have any guy she wanted, you were talking about how romantically attractive she is to people, weren’t you?

A.    No, at the time of this, we were having a friendship where I thought she was a good genuine person that is very helpful.

182    These answers were disingenuous. The reference in these Facebook messages to Ms Crauford’s “beauty” was a reference to her physical beauty, not to her being a good person. This was clear from the contrast between “not just the beauty” and “everything that means the most … you’re just a good genuine and honest person”. Mr Thomas’s attempt to suggest otherwise was self-serving and untruthful.

183    There were other Facebook messages in which Mr Thomas described Ms Crauford as “the hot bar chick all the lads chat up”, and stated that he had told his friend Shaun to “look for the hottest chick at the show and that will be you” and that he had “also said she’s the one with legs to die for”. When asked in cross-examination whether he said those things because he thought Ms Crauford was sexually attractive, he denied that he found her sexually attractive. Even accepting that the statements referred to in the messages were made jokingly, this answer was implausible, having regard to the plain meaning of the messages. Relatedly, when asked whether the message in which he referred to Ms Crauford having “legs to die for” was “a reference to Ms Crauford having really good legs”, Mr Thomas gave the evasive response, “It’s just a way to describe people, yes.”

184    Another example suggestive of a lack of credibility in Mr Thomas’s evidence relates to his evidence regarding his use of the letter “x” in many of the Facebook messages. In Ms Crauford’s affidavit evidence in chief, describing the first Facebook message she received from Mr Thomas on 25 October 2020, she stated (at [19]):

At 4:55pm on 25 October 2020, I received the first message from [Mr Thomas] via Facebook Messenger requesting videos of his rounds that I had filmed on my phone earlier in the day. The message contained an “x” in the end. I understood that “x” means kiss. I found it very unusual for a man, who appeared to be at least in his mid-40s that I hardly knew to be including an “x” in his message to me. I ordinarily only received “x” symbols in messages from close friends or family and I did not consider [Mr Thomas] to be a close friend.

185    In Mr Thomas’s affidavit evidence in chief on this issue, when he referred to the first Facebook message to Ms Crauford, which included an “x”, he stated (at [14.2]):

I finished off the message with the words “Thanks today X”[.] I often add the letter “X” after my messages to indicate my appreciation for what the receiver has done for me or is about to do. I also, from time to time, include “X” at the end of my messages to indicate that I am being friendly and not formal and to emphasise the message.

186    In specific reference to Ms Crauford’s affidavit at [19], Mr Thomas said (at [15.9]):

I refer to paragraph 19 and say that it is my experience that an “X” at the end of a message is a complimentary closing like “sincerely” and does not represent a kiss. Throughout our messaging, of which there were some 721, I occasionally used “X” to emphasise a point. Kate did not at any time, whether by message or any other way of communication, express a concern that I had on occasions finished my message with “X”. I have never kissed Kate or attempted to do so. I note that Kate considered my compliments about her riding ability to be inappropriate. She did not tell me this and did not subsequently tell me that she considered my compliments to be inappropriate.

187    Mr Thomas also said (at [15.24]), “The placing of an ‘X’ was, to my mind, a way of emphasising the message and finishing it.”

188    Mr Thomas was shown the latter passage in cross-examination and was asked:

Q.    … If Kate had told you that she had a boyfriend, would you still have put Xs at the end of your messages?

A.    Yes.

Q.    And that’s because you say that an X is just emphasising the end of a message?

A.    X is a friendly – if something does something nice for you, you put an X or a love heart emoji or - - -

Q.    Right. And so you don’t view putting an X as a kiss the end of a message?

A.    No.

Q.    It’s the case, isn’t it, that at the end of birthday cards and those sorts of things, you often might write “XOXO”. You’ve seen that done before, haven’t you?

A.    Yes, I’ve seen that.

Q.    Yes, and that means, “Kiss, hug, kiss, hug,” doesn’t it?

A.    Well, it’s not – it can be interpreted in many ways.

Q.    Yes?

A.    Yes, what you’re saying in the birthday card, yes, probably.

Q.    So in a birthday card you’d accept an X might be a kiss, but when you used it with Kate you only meant to emphasise it; you didn’t mean it as a kiss. Is that your evidence to his Honour?

A.    Yes.

Q.    I say that’s untrue, Mr Thomas. You meant it as a kiss, didn’t you?

A.    No, I did not.

189    I find that Mr Thomas’s answers to these questions were deliberately evasive. It is implausible that he did not appreciate that an “x” at the end of a message meant a kiss. The explanation that he used an “x” to add “emphasis” to a message is also implausible. Mr Thomas provided no evidence of any other text message or Facebook message with anyone other than Ms Crauford in which he used an “x” in that way, such as in conversation with male friends. Having regard to the way he used an “x” across the Facebook messages, it was meant to convey affection and not emphasis. To avoid any misunderstanding, in finding that Mr Thomas used an “x” in Facebook messages with the understanding that it meant a kiss, I do not mean to suggest that the sending of a message that contained an “x” was in any way tantamount to his physically kissing Ms Crauford.

190    A further example, which relates closely to one of the main alleged acts said to amount to sexual harassment, concerns Mr Thomas’s evidence about the car which Ms Crauford was driving when they were together in Sydney. Ms Crauford’s affidavit evidence had set out an allegation that Mr Thomas touched her on the leg while she was driving. In response to this allegation, Mr Thomas said in his affidavit evidence in chief (at [15.53]):

I deny that at any time I rubbed or touched Kate’s leg. … The vehicle in which we were driving was very wide with a high centre console which contained a fridge. For me to have touched her leg I would have had to twist out of my seatbelt and leaned over to her side of the vehicle. I did not do so. I was concerned with Kate’s attitude and disrespect and I told her that I did not respect her opinions or her qualifications to make assessments of my horse’s condition.

191    In this paragraph, Mr Thomas plainly sought to imply that Ms Crauford’s allegation of his touching her leg was close to physically impossible, in order to discredit her account. In cross-examination, after being shown a photograph of the Ford Ranger in which they were travelling, Mr Thomas accepted that it did not have a large centre console containing a fridge, and explained that he had believed that they were driving in Sophie Crauford’s car. While it is possible that Mr Thomas was mistaken about the vehicle they were driving in, this was an instance of his giving evidence in his affidavit that was wrong and which served his interests. His insistence that he did not include those details to give the impression that it would not have been possible for him to have reached over and touched Ms Crauford’s leg was implausible.

192    Another topic on which Mr Thomas’s evidence was unsatisfactory related to the extent to which he had sought to involve Ms Crauford in his commercial activities. Mr Thomas must have appreciated that the application of the SD Act could turn, at least in part, on the nature of the relationship between himself and Ms Crauford, including (to put it loosely) whether she was a person who performed work, or who was seeking work from him, or to whom he was offering to provide services. In his oral evidence, Mr Thomas initially maintained that he was not interested in having her involved in his commercial activities. After being reminded of his Facebook messages that suggested otherwise, he cautiously conceded that he was interested in having Ms Crauford work for him, but that he would only involve her in the business on a voluntary basis. Ultimately, Mr Thomas accepted that he would have given her paid employment had she come to Mt Barker and worked voluntarily with the horses. I accept Ms Crauford’s submission that Mr Thomas’s responses to questions on this topic give rise to concerns about his credibility as a witness. They suggest that he was prepared to manipulate his evidence to suit what he understood would benefit his case.

193    Ms Crauford gave evidence that she witnessed Mr Thomas mistreat his horse, Victor, on at least two occasions (depending on how one defines mistreatment). Mr Thomas denied mistreating Victor at all. In particular, he denied a detailed allegation made by Ms Crauford to the effect that he engaged in the practice of “rapping” Victor while Ms Crauford was riding Victor on 3 December 2020. I have formed the view that his evidence on this issue was dishonest, for reasons which are explained at [295]-[304] below. Although the question of Mr Thomas’s treatment of Victor was in some respects a peripheral issue that provided the context for some of what occurred, my view of his evidence on this topic has contributed to my conclusion that he was prepared to give evidence that was evasive or dishonest when he perceived that the truth would harm him or reflect poorly on him.

194    For all these reasons in combination, I am unable to have confidence that Mr Thomas was telling the truth in relation to matters where he might have perceived that it would be contrary to his interests to give truthful evidence. To the extent that the evidence of Mr Thomas conflicts with that of Ms Crauford in relation to factual matters, I accept the evidence of Ms Crauford as satisfying me of those matters on the balance of probabilities, and I reject the evidence of Mr Thomas.

Dr Martyn Ewer and Prof Jacques Metzer

195    Ms Crauford called evidence from Dr Martyn Ewer. He provided a report dated 25 January 2024 and was cross-examined. He interviewed Ms Crauford (who was then in the United States) via Zoom for the purpose of preparing his report. I found Dr Ewer’s evidence to be clear and cogent. I generally accept his evidence.

196    Dr Ewer expressed the conclusion that Ms Crauford suffers from a chronic adjustment disorder with depressed and anxious mood. In his view, she probably developed an adjustment disorder in January 2021 as a result of the way Mr Thomas allegedly treated her (noting there was disagreement regarding what actually occurred). He considered that Ms Crauford probably would not have met the diagnostic criteria for a psychiatric disorder by the time she commenced working in the United States in April 2021. Her symptoms later returned and were probably precipitated by the manner in which she was treated when working in the United States.

197    Mr Thomas called evidence from Prof Jacques Metzer. He provided a report dated 15 May 2024. He interviewed Ms Crauford via telephone. Professor Metzer identified certain considerations that caused him to express doubt about the diagnosis offered by Dr Ewer. He did not go so far as to conclude positively that Ms Crauford was not suffering from an adjustment disorder, but suggested that there were further inquiries that could be made in that regard.

198    Dr Ewer and Prof Metzer were largely in agreement about most matters. To the extent that their opinions differed, for several reasons, I generally found the evidence of Dr Ewer more compelling than that of Prof Metzer. Dr Ewer accepted that several of the issues raised by Prof Metzer were worthy of consideration but thought, for reasons that he explained cogently, that Prof Metzer’s report tended to raise more questions than it resolved.

199    Professor Metzer’s report was critical of Ms Crauford in some respects, and he seemed to doubt her own description of the way Mr Thomas’s conduct made her feel. I formed the impression that his evidence was affected by his own interpretation of what Ms Crauford’s messages conveyed about her state of mind. This seems to have been based, in part, on certain assumptions he made about online conventions. For instance, Prof Metzer found it incongruous that Ms Crauford claimed to regard Mr Thomas’s repeated use of an “x” in his messages as unusual or disturbing, when she herself had used a heart react on one of his Facebook posts. I do not regard these aspects of her behaviour as particularly incongruous, however (and see further [217] below).

200    Professor Metzer considered that it was difficult to make a definitive diagnosis. He stated in his report:

It is difficult to avoid a conclusion that [Ms Crauford’s] psychological profile does not fit a consistent or meaningful clinical and trait profile, making a decision of a DSM5 diagnosis problematic, particularly in view of the caution required as a result of the High NIM and Defensiveness scores. Without doubt, the high NIM score is indicative of magnifying and exaggeration of perceived negative characteristics, behaviours and symptoms. The presence of elevated defensiveness usually is indicative of refusal to admit to individual faults and minor shortcomings. These two somewhat discordant tendencies appear to be both present in Ms Crauford’s trait and clinical profile, accentuating the difficulties of making an accurate DSM5 diagnosis.

201    I did not understand Dr Ewer to dispute that there were aspects of Ms Crauford’s profile that made it difficult to give a definitive diagnosis. However, he remained of the view that the Ms Crauford “probably” suffered from a chronic adjustment disorder.

202    Dr Ewer accepted that one result of the tests he conducted was to suggest that Ms Crauford’s report of her own symptoms may have been magnified. He explained that there is a range of reasons why symptom magnification might occur, including malingering (consciously exaggerating symptoms to gain a benefit). He also stated that it is commonly recognised that people with depression and anxiety might over-report their symptoms, and that that could be a symptom of the condition. It could also be related to personality or could be a cry for help. Dr Ewer did not consider that Ms Crauford was malingering, but that symptom magnification in her case could have been due to her depression and anxiety or certain personality vulnerabilities that he identified. He maintained the view that she was suffering from a psychological disorder. In light of this evidence, I find that Ms Crauford likely exaggerated her description of her symptoms to some extent, but I do not think that she did so dishonestly. I have taken into account this conclusion in making my assessment of the evidence of Ms Crauford. It does not cause me to doubt the truthfulness of her evidence about the events of October to December 2020 (and, as I have said, particularly her oral evidence).

203    Professor Metzer expressed doubts that Ms Crauford was suffering from an adjustment disorder or anxiety in relation to Mr Thomas’s behaviour from as early as 25 October 2020 (the date the first Facebook messages were exchanged). He pointed to conduct of Ms Crauford that he considered unlikely if she were suffering from anxiety in relation to Mr Thomas’s conduct. However, Dr Ewer did not suggest that Ms Crauford had been suffering from an adjustment disorder from as early as October 2020. His opinion was that she “probably developed an Adjustment Disorder in January 2021 as a result of the way Mr Thomas treated her”. Dr Ewer explained why he did not consider that the onset of Ms Crauford’s symptoms in early 2021 was inconsistent with his diagnosis of an adjustment disorder. To the extent that Prof Metzer disagrees with Dr Ewer on this issue, I prefer Dr Ewer’s evidence. I accept that Ms Crauford’s symptoms did not manifest until some time after the events of December 2020.

204    Professor Metzer recorded that, in the course of administering a questionnaire, Ms Crauford gave a particular answer to a question about her personal history. Ms Crauford’s evidence is that she did not give the answer that was recorded. She also said that she found the multiple-choice questions confusing and did not have a copy of the questionnaire. I accept Dr Ewer’s evidence that it is generally preferable that an interview be conducted in person or using a video link rather than merely a telephone, for reasons that he explained in his oral evidence in chief. Although I am not sure how the wrong answer came to be recorded by Prof Metzer, I think there is room for there to have been a misunderstanding here, whether Ms Crauford misheard or misunderstood the question or Prof Metzer misunderstood the answer. It is to be recalled that the interview was conducted via telephone, without the benefit of Prof Metzer and Ms Crauford being able to see each other. I accept Ms Crauford’s evidence that she did not give the answer that was attributed to her. I do not regard the difference between Ms Crauford’s evidence on this issue and Prof Metzer’s as detracting at all from Ms Crauford’s credibility as a witness.

205    Both Prof Metzer and Dr Ewer considered it likely that the mistreatment of a horse by Mr Thomas which Ms Crauford believed she had witnessed would have been a distressing event for her, and one which was detrimental to her views of Mr Thomas, and that this would likely have contributed to her anxiety in relation to him. I accept that evidence.

EVIDENCE AND FINDINGS IN RELATION TO THE CONDUCT OF MR THOMAS

The Facebook messages

206    Between 25 October and 11 December 2020, both Mr Thomas and Ms Crauford sent each other hundreds of Facebook messages. I have had regard to all of the messages. While the focus of the discussion below is, naturally, on particular messages which are alleged to amount to sexual harassment, I have not overlooked that there were many Facebook messages from Mr Thomas that are not the subject of complaint.

207    Ms Crauford’s evidence in chief was to the effect that each of the Facebook messages which she relied upon as instances of sexual harassment was unwelcome. It was not put to Ms Crauford that any of the messages of which she complained was not, in fact, unwelcome, or that she was being untruthful in stating that the conduct was subjectively unwelcome. It was put to her that she had not actually told Mr Thomas that one particular exchange (referring to her having “legs to die for”) was unwelcome, to which she answered, “Not directly, no.” I accept that that particular statement and the other statements which Ms Crauford alleges constituted sexual harassment were subjectively unwelcome to her.

208    Some of Ms Crauford’s responses could be interpreted as playful. She engaged in a form of banter or teasing with Mr Thomas, occasionally ribbing him, and deploying swearing. Notably, none of Ms Crauford’s messages made reference to Mr Thomas’s body or his physical appearance. Ms Crauford did not do or say anything to suggest that she was romantically or sexually interested in Mr Thomas. Her responses to his messages generally did not provide much encouragement to him to continue to make remarks about her physical appearance, and did not acknowledge any romantic connection between them. In contrast, read as a whole, Mr Thomas’s messages implied that he was romantically or sexually attracted to Ms Crauford. Comments made by Mr Thomas about her beauty or physical appearance were often ignored by Ms Crauford, or were met by engagement with another part of Mr Thomas’s message only. Sometimes they were met with self-deprecating humour which, although playful, could also be viewed objectively as likely reflecting discomfort on Ms Crauford’s part.

209    I accept that the course of the exchange of Facebook messages generally, and the fact that it continued, demonstrates that Ms Crauford was not so uncomfortable with the messages Mr Thomas had sent her that she told him directly to stop, or ceased communication with him. This is a consideration that I will take into account as part of the overall context in assessing whether particular conduct of Mr Thomas was such that a reasonable person would have anticipated the possibility that Ms Crauford would be offended, humiliated or intimidated. It is far from conclusive, however, because, while a reasonable person would take into account the entire course of the exchange of Facebook messages and the relationship generally, they would also appreciate that a woman of Ms Crauford’s age and relative position would likely feel reticent about directly challenging a man of Mr Thomas’s age, and his standing in the sport of show jumping and in the show jumping community, about his comments.

210    It is also important to appreciate that Ms Crauford perceived (as was the case) that Mr Thomas was offering her apparent opportunities to advance her sporting career in various ways. The fact that she continued to tolerate certain conduct by him did not necessarily mean that she was not (or that it could not reasonably have been anticipated that she might be) offended, humiliated or intimidated by it. A reasonable person would consider the Facebook messages as a whole, including the relatively subtle, but noticeable, ways in which Ms Crauford avoided engaging with certain comments made by Mr Thomas or signalled that they made her uncomfortable.

211    Both parties swore from time to time in their Facebook messages (and, if it is relevant, Mr Thomas first swore in the messages before Ms Crauford did). Mr Thomas submits that Ms Crauford’s use of “crude language” suggested that she would not be offended by the language he used in his comments. The use of swearing reflected Ms Crauford’s casual way of interacting with Mr Thomas, but I do not accept that the way Ms Crauford deployed swear words implied at all that she would be open to receiving comments of a sexual nature from Mr Thomas.

212    In the course of cross-examination, it was suggested to Ms Crauford that many of the specific Facebook messages were not sexual in nature, or that she did not regard them as sexual or did not interpret them as sexual at the time. Ms Crauford answered these questions straightforwardly and, in many cases, accepted that, at least as she sat considering them in the witness box, she did not regard a particular Facebook message as sexual in nature or as offensive. Of course, Ms Crauford’s answers are not conclusive of the character of any of the Facebook messages for the purposes of the definition of sexual harassment in s 28A of the SD Act (which is to be assessed objectively), but they may be capable of illuminating the character of particular messages in the context of the relationship between Mr Thomas and Ms Crauford.

213    Attempting to characterise particular Facebook messages by reference to the objective parts of the definition of sexual harassment is a difficult exercise. Some messages are, in my view, close to the line, and I have had to do my best to place them on either side of it. As might be expected of private or personal messages, they make for uncomfortable reading at times. I accept that the Facebook messages must be read in the context of the whole of the relationship between Mr Thomas and Ms Crauford, as it was developing over time. Even viewed in that context, many messages sent by Mr Thomas are, at the least, such that they might have been expected to have made Ms Crauford feel uncomfortable. I have found that some of them met the relevant statutory definition of sexual harassment.

214    I would not be inclined to characterise the conduct of Mr Thomas as a constituting a “sexual advance” or a “request for sexual favours”. Although the messages viewed as a whole are consistent with Mr Thomas being open to a romantic or sexual relationship with Ms Crauford, I do not think that the messages involved an implicit request that Ms Crauford engage in any kind of sexual conduct with him, or that they suggested the prospect of her participating or engaging in a form of sexual behaviour. Rather, the messages said to constitute sexual harassment involved Mr Thomas testing, and trying to expand, boundaries – including in ways that made reference to Ms Crauford’s body and physical appearance; were excessively complementary (including in relation to Ms Crauford’s physical appearance); were provocatively sexist; and employed conventions and language that were more personal and intimate than might have been expected among people who, like Mr Thomas and Ms Crauford, had only known each other for a short time and who were quite widely separated in age and experience. It is not necessary to reach a final view as to whether any of Mr Thomas’s conduct should be characterised as a “sexual advance”, because any of his conduct that could arguably be so characterised is “conduct of a sexual nature” in any event.

25 October 2020

215    As has been mentioned above, Ms Crauford met Mr Thomas on 25 October 2020 shortly after she had competed in the novice class of the show jumping competition at the Mt Gambier Show. Ms Crauford assisted Mr Thomas to prepare his horse, Victor, for his competition in the main class. Ms Crauford filmed Mr Thomas on her phone (without his knowledge) and later showed him the video on her phone.

216    Later on 25 October 2020, Mr Thomas made a Facebook post that included photographs of him competing at the Mt Gambier Show, in which he thanked Ms Crauford for her assistance with warming up his horse and for the videos she had recorded. Ms Crauford reacted to the Facebook post with a red heart reaction.

217    I accept Ms Crauford’s evidence that she regarded the red heart reaction as amounting to a “super like” rather than as signifying romantic love. Common sense and common experience suggest that that is a normal way to use the red heart, particularly in the context of a reaction to a post, as opposed to an emoji inserted into a message, and especially in response to a post by a much older man whom Ms Crauford had only just met. Insofar as it is suggested that Ms Crauford’s use of the heart reaction was equivalent to Mr Thomas’s use of an “x” in messages, I do not accept that it was.

218    The first Facebook message between Mr Thomas and Ms Crauford was sent by Mr Thomas in the evening of 25 October 2020, after he had spoken with Ms Crauford and Sophie Crauford in person earlier that afternoon. That message, and Ms Crauford’s immediate response, were as follows:

219    Ms Crauford submits that the use of an “x” at the end of Mr Thomas’s first message was conduct of a sexual nature. I do not agree with that characterisation. I accept that it was meant as, and would have been understood as, a representation of a kiss, but it was not tantamount to a real-life kiss. I also do not accept that a reasonable person would have anticipated the possibility that Ms Crauford would be offended, humiliated or intimidated by the use of an “x”, as it is a common form of sign-off in text communication. Mr Thomas’s use of the “x” in his first message was surprising and forward, given that he barely knew Ms Crauford when he sent it, and I accept her evidence that she found it “bizarre” at the time.

220    Ms Crauford did not raise any objection or comment about Mr Thomas’s use of the “x”, and responded in a manner that appeared friendly and enthusiastic. I do not mean any criticism of Ms Crauford; no responsibility lay on her to raise an objection or to respond to Mr Thomas’s messages in any particular way. Ms Crauford’s response is nevertheless relevant to what a reasonable person would appreciate when considering later Facebook messages.

221    Mr Thomas sporadically used an “x” in subsequent messages. I do not consider that that was, itself, conduct of a sexual nature, though in some cases the “x” formed part of a message that had other elements that need to be considered, and in those cases the messages (or exchange of messages of which they form a part) will be considered as a whole. Otherwise, I will not refer to individual messages where only the use of an “x” is relied on to establish sexual harassment.

222    At 5.21pm on 25 October 2020, Ms Crauford received the following reply from Mr Thomas:

223    Ms Crauford’s response related to Mr Thomas’s comment that she was a talented rider. Notably, she did not respond to his first comment, in response to her message, that there was nothing of her to blow over. This was a reference to Ms Crauford’s physical stature. Although, again, it might be thought a surprising comment from a man who had only just met her (putting aside two inconsequential interactions in 2014), it was responsive to Ms Crauford’s comment about nearly having been blown over, and was not overtly sexual, even though it referred to her physically. I would not characterise this as conduct of a sexual nature. Nor do I think the comment was such that a reasonable person would have anticipated the possibility that Ms Crauford would be offended, humiliated or intimidated by it.

27 October 2020

224    On 27 October 2020, Ms Crauford asked Mr Thomas, via a Facebook message, if he would assist her and help her “warm up” before she competed in two classes at the South Australian State Championships. Ms Crauford and Mr Thomas then engaged in further conversation via Facebook Messenger from 9.02pm:

225    Mr Thomas’s messages in this exchange included sexist, and mildly misogynistic, comments. However, I would not characterise this as sexual conduct. These Facebook messages seem to have been calculated to make Ms Crauford feel uncomfortable, albeit evidently as a kind of joke, but, on balance, I do not think it should be concluded that a reasonable person would have anticipated the possibility that she would be offended, humiliated or intimidated by them.

28 October 2020

226    At 9.28pm on 28 October 2020, Ms Crauford messaged Mr Thomas seeking clarification regarding an email that she had received from the organisers of the State Championships which stated that competitors were not to ride their horses on the oval on the Thursday before the competition. Ms Crauford and Mr Thomas engaged in a conversation in which she queried where she would be allowed to ride her horse if riding on the oval was not permitted. In the course of the conversation, Mr Thomas stated, “I’m the boss. I can do anything young lady.” This was a reference to his position of influence in relation to the State Championships. I accept that he was conveying that he was in a position of authority. Although Mr Thomas used a term that referenced Ms Crauford’s age and sex, which was apt to make Ms Crauford feel uncomfortable, and was capable of being interpreted as condescending, I would not characterise this as conduct of a sexual nature.

29 October 2020

227    It will be recalled that the South Australian State Show Jumping Championships were held at Wirrina Cove between 29 October 2020 and 1 November 2020.

228    On 29 October 2020 at approximately 12.50pm, Mr Thomas messaged Ms Crauford to ask for her mobile phone number so that he could contact her when she arrived at the location for the State Championships. Ms Crauford did not respond to this request. In the evening on 29 October 2020, Ms Crauford declined an invitation from Mr Thomas to a gathering at the location where he was camping for the Championships. Ms Crauford explained that she was tired but would “come hang” the following night. Mr Thomas responded with two messages that stated “You have to promise” and “You need your beauty sleep”. This is a common expression, and although it could be interpreted as a subtle way of referencing Ms Crauford’s beauty or physical appearance, I would not characterise it as sexual conduct. I also do not think a reasonable person would have anticipated the possibility that she would be offended, humiliated or intimidated by these messages.

30 October 2020

229    On 30 October 2020 at 7.42pm, Ms Crauford and Mr Thomas had a conversation via Facebook Messenger about a party which Sophie Crauford wanted to attend. In that context, Mr Thomas again asked for Ms Crauford’s phone number. She ignored that request and said she would not be going to the party. Mr Thomas suggested he would “drag [Ms Crauford] to the party”, and that she was “turning into a nanna”, and said, “Get your shit together princess[.]” Although it was overfamiliar, I would not characterise this as sexual conduct and nor do I think that a reasonable person would have anticipated the possibility that Ms Crauford would be offended, humiliated or intimidated by it.

31 October 2020 and 1 November 2020

230    On 31 October 2020, Mr Thomas and Ms Crauford exchanged messages after Mr Thomas had successfully competed in a round of the State Championships. The evidence does not provide any detail as to any discussions Mr Thomas and Ms Crauford may have had in person in the course of the State Championships, but it is an agreed fact that Ms Crauford filmed Mr Thomas’s jumping rounds for him.

231    In response to a message from Mr Thomas, Ms Crauford used the expression “Done the team proud!!”. On 1 November 2020 at 12.13am, Mr Thomas sent a message which read, “Hey, come to canteen. Still here band everything. I’ll buy you a drink celebrate my win[.]” Ms Crauford attended the event briefly, and later, at 2.30am, Mr Thomas sent a further message that read, “Get your beauty sleep, we can win these titles[.]” Ms Crauford submits that the reference to her “beauty sleep” constituted sexual harassment. For the reasons already explained at [228] above in relation to Mr Thomas’s earlier use of the same expression, I would not characterise it as such.

232    Up until 1 November 2020, Mr Thomas had not offered Ms Crauford any goods, services or facilities. I have not found that his conduct up to this point was within the definition of sexual harassment but, even if any of it was, the conduct did not occur in the course of his offering her goods, services or facilities, so s 28G(1) of the SD Act did not apply to make it unlawful.

233    Mr Thomas and Ms Crauford did not exchange further Facebook messages on 1 November 2020 until 7.04pm, when Ms Crauford sent two videos to Mr Thomas. After some further discussion about Ms Crauford’s performance at the State Championships and sending of photographs, Mr Thomas wrote, “You’re such a naturally talented rider too[.]”. A few messages later, he wrote, “I wish you lived closer and I wish you were staying.” This was a reference to Ms Crauford’s plan to move to the United States. The following exchange of messages then followed:

234    In these messages, Mr Thomas was telling Ms Crauford that he would be prepared to work with her as a coach to improve her riding. The messages continued with Mr Thomas speaking in flattering terms about Ms Crauford’s natural riding ability.

2 November 2020

235    Ms Crauford and Mr Thomas continued this conversation on 2 November 2020, starting from 8.28am. Mr Thomas sought to convince Ms Crauford that she should stay in Australia, with Ms Crauford resisting that idea. She then returned to the topic of her annoyance about the mistakes she had made in the State Championships:

236    The response from Mr Thomas sent at 1.08pm was, again, overfamiliar, but was offered in the context of an apparent attempt to reassure Ms Crauford when she was being self-critical. Although Mr Thomas’s comment that Ms Crauford was “one of the kindest most beautiful girls I know of” referred to her as beautiful, and this would naturally be understood as a reference to her physical appearance, I do not think that that comment itself should be characterised as conduct of a sexual nature or as conduct that a reasonable person would anticipate would possibly have offended, humiliated or intimidated Ms Crauford.

3 November 2020

237    On 3 November 2020, Mr Thomas and Ms Crauford exchanged Facebook messages in which Ms Crauford referred to her university assignments and explained that she was studying international business. Mr Thomas suggested that she could help him with his business, SSH. Ms Crauford appeared to be taking this as a joke but Mr Thomas insisted that he was serious. Mr Thomas asked Ms Crauford to guess how much SSH turned over each month. She replied that she had no idea and made clear that she did not want to guess and considered it none of her business. Mr Thomas persisted, providing more information about his business and eventually sending her a graph showing SSH’s sales revenue for the month of October 2020. The conversation continued, with Mr Thomas asking whether Ms Crauford would consider moving “up here” (ie, closer to Mt Barker or Adelaide) suggesting that she could ride and train horses and that he would give her “shop hours”. This exchange did not include any messages said to amount to sexual harassment, but has been referred to at [133(3)] above in the context of Ms Crauford’s contention that the relationship was such that s 28B(3) of the SD Act was applicable.

4 November 2020

238    At 6.47am on the following morning, 4 November 2020, Mr Thomas sent Ms Crauford a Facebook message which read, “I’m super excited about everything we discussed last night. Just wish there was an opportunity for this to happen.” At 12.43pm and 1.29pm, Mr Thomas sent Ms Crauford two photos. There was then a mutual exchange of messages, in the course of which Ms Crauford inquired as to whether there were any more competitions coming up.

239    In the evening, that conversation continued, with Ms Crauford suggesting that the border to Western Australia was likely to reopen and that she would probably go to competitions in both Western Australia later in November and Sydney in early December. Mr Thomas indicated that he could not go to Western Australia. Ms Crauford expressed regret that Mr Thomas would miss out. She offered to take Victor and to ride him until Mr Thomas could fly to Western Australia to compete. After Ms Crauford referred to her horse, Teddy, Mr Thomas said that he wanted Ms Crauford to make a plan to sell him. Ms Crauford said she probably would sell him but would not buy another horse to replace him. Mr Thomas then asked whether Ms Crauford had time to call him because “I need to make a plan”, and Ms Crauford replied with, “Yeah sure!”, and provided her mobile phone number. She did so in order to discuss arrangements for the upcoming shows in Sydney and Western Australia. These messages gave the impression that Ms Crauford was enthusiastic about attending shows interstate with Mr Thomas.

240    Soon afterwards, Mr Thomas called Ms Crauford. They had a phone conversation that lasted about two hours. Sophie Crauford was present with Ms Crauford during the conversation and also spoke to Mr Thomas on speaker to discuss the upcoming competitions. The phone call ended shortly after 11.00pm. Mr Thomas then sent Ms Crauford some pictures of his store via Facebook Messenger. The following exchange of messages in relation to Ms Crauford’s planned travel to the United States then took place:

241    This aspect of the conversation continued after a few more Facebook messages, with Mr Thomas writing, “But I’m saying you could be with any guy you want. You have not just the beauty, but everything that means the most. You’re just a good, genuine and honest person.”

242    Ms Crauford responded to this further message with her own, which began, “Aww that’s so sweet!! Thank you.”

243    In relation to these messages, Ms Crauford said in her affidavit (at [39]) that:

I thanked [Mr Thomas] for this, but I recall these unwelcome compliments made the situation very tense and uncomfortable for me. At the time, the comments just seemed inappropriately personal, irrelevant, out-of-place and bizarre. I did not want him to be referring to my personal life or romantic interests in this way and I was confused about why he was doing it.

244    I accept that Ms Crauford felt this way about these messages. However, I do not consider that they involved conduct of a sexual nature. Nor do I think they were such that a reasonable person would anticipate the possibility that they would offend, humiliate or intimidate Ms Crauford.

5 November 2020 and early morning of 6 November 2020

245    In the morning of 5 November 2020, Mr Thomas raised the prospect of his and Ms Crauford’s travelling to Sydney together, by sending a Facebook message stating, “Let’s do Sydney”. He said that he needed Ms Crauford’s help in Sydney and “won’t manage without you”, and stated that it would not cost her anything as he had a place to stay. The conversation resumed in the afternoon and Ms Crauford agreed to assist with the paperwork required for Mr Thomas for the Sydney trip. This exchange of messages appeared light-hearted, with both Mr Thomas and Ms Crauford referring to her acting has his “secretary” for the trip. Mr Thomas repeatedly expressed excitement about the trip.

246    In the course of this exchange, the following messages were sent:

247    In Ms Crauford’s affidavit evidence, she said that these comments, particularly the “You’re very naughty” comment, were creepy and made her feel uncomfortable. I accept that that is how she would have felt. These messages could be interpreted as suggesting that Mr Thomas was excited to be going to Sydney because he would be spending time with Ms Crauford, and had an interest their being “together”, presumably meaning working together in connection with riding, and her supporting him with Victor – but with a possible double meaning. The words “You’re very naughty” are capable of bearing a sexual meaning, which may well be why Ms Crauford found them creepy. On balance, however, I do not consider that the sending of these messages should be characterised as comments of a sexual nature.

248    The conversation continued into the early hours of the next morning. Mr Thomas referred again to his ability to help riders succeed. He concluded the conversation by sending, “I need to go to bed. 5am start. Good night x”.

6 and 7 November 2020

249    In the evening of 6 November 2020, Mr Thomas and Ms Crauford discussed (via Facebook Messenger) the transport of Teddy to the competitions in Western Australia and Sydney. Mr Thomas sent Ms Crauford a message that read, “Babe, please explain”. In her affidavit, Ms Crauford said of this message (at [43]):

I found this statement to be very inappropriate and the particular use of the word “babe” caused me discomfort. Rather than raising it as an issue with him, I was thinking “don’t admit it, just ignore it” and I hoped it would go away. I was just too intimidated to bring it up because I thought it could backfire.

250    I accept this evidence. It provides insight into why Ms Crauford reacted (or did not react) in the way she did to the messages she was receiving. It is reasonably predictable that a young woman in her position might feel that way.

251    Later on the same day, in the course of a discussion relating to plans to travel to Sydney for the Sydney Show, Ms Crauford said that she was torn as to whether to go to Western Australia or Sydney or both, and was concerned for the welfare of her horse, Teddy, if she were to do both. The following exchange occurred:

252    The conversation then continued, with Mr Thomas telling Ms Crauford she should stay in Australia, referring to her as “miss bossy”, and telling her that she “will be the best”. In her affidavit evidence, Ms Crauford said (at [44]) of the exchange set out above:

This language was personal and intimate and made me feel uncomfortable. At the same time, I did not want to address the issue with him and risk blowing up the arrangements for Sydney or the possibility of working with him in some professional capacity.

253    Ms Crauford submits that these Facebook messages, and in particular the use of the expression “Babe” and the exchange in which Mr Thomas said “You love me”, constituted sexual harassment. It is appropriate to consider these messages, sent on the same day, together.

254    The use of the term “Babe” by Mr Thomas to Ms Crauford in the Facebook messages is relied on as an instance of sexual harassment. While that is an expression that may sometimes be used between friends, it is commonly used between members of a couple, and suggests a level of familiarity or intimacy that was not apposite to the relationship between Mr Thomas and Ms Crauford. When used by a man to address a woman, it may also carry a sense of objectification. Mr Thomas’s use of the term involved a pushing of the boundaries of the relationship, in a way that suggested a romantic or sexual interest in Ms Crauford, particularly in the context of his ambiguous messages of the previous night. Nothing in the exchange of Facebook messages to this point had been such as to suggest that Ms Crauford would welcome being addressed in that way by Mr Thomas. Although her messages had been fun and casual, she had done nothing to encourage a view of their relationship as romantic.

255    Ms Crauford’s messages to Mr Thomas in this exchange were playful and, I accept, could be seen as encouraging the use of flirtatious language to some extent; particularly her use of the word “cute” to describe herself and Teddy (although it is notable that this was a description of herself, not one directed towards Mr Thomas).

256    While “love” can of course bear a wide range of meanings, some of which are not romantic or sexual, it was a strong word to use less than two weeks after Mr Thomas and Ms Crauford had met (apart from in 2014 when Ms Crauford was 13 years old). Mr Thomas used it in a context where he had recently addressed Ms Crauford as “Babe”, and it was a continuation of that theme. I accept that, when Mr Thomas had called Ms Crauford “Babe”, she had not responded in a way that made it clear that she was offended. Ms Crauford’s response to the “love” comment – using an emoji normally understood to signify surprise or embarrassment, and questioning the statement – was also playful, but did suggest that she may well have been uncomfortable with Mr Thomas’s assertion that she loved him. His reply “I think you do” ignored that signal.

257    I find that the sending of the Facebook messages referring to Ms Crauford as “Babe” and insisting that she loved Mr Thomas, viewed as a whole, and in context, amounted to conduct of a sexual nature. It was flirtatious and implied that Mr Thomas saw himself and Ms Crauford as a couple or a potential couple. It was subjectively unwelcome. I accept that a reasonable person would have anticipated the possibility that Ms Crauford would have been offended, humiliated or intimidated by these messages. I conclude that this conduct met the definition of sexual harassment.

8 November 2020

258    The exchange of Facebook messages continued sporadically over the course of 7 November 2020 and Ms Crauford sent a message at 12.57am in the morning of 8 November 2020. Ms Crauford explained that she was awake because she was working in her job at a restaurant. The following exchange of messages followed:

259    Ms Crauford’s affidavit evidence was that she felt insulted by Mr Thomas’s comment that she was the “hot bar chick all the lads chat up”. She said, “I was working hard to make money so that I could compete in shows and this comment sexualised and minimised that work.” Again, while Ms Crauford’s own description of her work was self-deprecating, Mr Thomas’s comment added a sexual aspect to the discussion that Ms Crauford had not suggested or invited.

260    I accept that this was a comment of a sexual nature. It specifically referred to Ms Crauford as “hot” and as a “chick” (even accepting that “bar chick” is an expression that need not always have a strong sexual connotation, and that Ms Crauford herself had used the expression “drinks bitch”). Although they occurred in the course of a playful exchange, the sexualised comments were all one way. They occurred in the context of the messages of the previous day. The comment was unwelcome. I accept that a reasonable person would have anticipated the possibility that Ms Crauford would have been offended or humiliated by it. I find that this met the definition of sexual harassment.

9 to 12 November 2020

261    On the evening of 9 November 2020, Ms Crauford made reference to an ongoing apparent joke about her acting as Mr Thomas’s “international rep” while in the United States. Mr Thomas suggested that she should remain in Australia. On 10 and 12 November 2020, they had further conversations on Facebook Messenger about Ms Crauford’s plans to move to the United States, and the possibility of their working together. These messages have been referred to at [133(5)], [133(6)] and [133(7)] above. In her affidavit, Ms Crauford said that the personal tone Mr Thomas adopted in his message sent on 10 November 2020 that stated “I wish there was something I could do to keep you here” made her feel “unsettled and uncomfortable”. That may be so, but this conversation was not of a sexual nature and could not constitute sexual harassment.

262    On 11 November 2020, at 6.37pm, Ms Crauford sent Mr Thomas a message to discuss logistics in relation to the Sydney Show. At 6.58pm, Mr Thomas replied to Ms Crauford to say that he was considering not travelling to Sydney for the show jumping event in December 2020. In her affidavit, Ms Crauford said that she felt that the personal nature of Mr Thomas’s language in certain messages – “I’ve gotta do a few all nighters. I know how much you want to go. I’ll make this happen somehow x” and “I would love you to come more than anything” – seemed inappropriate, out of place and made her feel uncomfortable. The sending of these messages was not conduct of a sexual nature, however. And, although it could be anticipated that they might make Ms Crauford feel uncomfortable, they were not such that a reasonable person would anticipate the possibility that they would cause her to be offended, humiliated or intimidated.

263    Of the exchange of messages on 12 November 2020, Ms Crauford said in her affidavit (at [51]):

Later in the conversation, [Mr Thomas] spoke about the Sydney Trip and offered to fly me there to try horses. I reaffirmed that I was unsure about my plans to travel to Sydney. I recall feeling pressured by [Mr Thomas] as he persistently questioned me on my plans to travel to Sydney. [Mr Thomas] sent me a message stating, “Even without horse, would you come up.” I did not reply [to] this statement because it seemed to imply that I would be interested in travelling with him out of a personal rather than professional interest in him. This was certainly not the case. I had agreed at this stage to ride horses that he was considering purchasing and give him my considered assessment of each horse. That was a professional association I was prepared to accept, but I had no interest in any personal relationship with him.

264    I accept that Ms Crauford felt uncomfortable about confirming her plans for travelling to Sydney with Mr Thomas, or the possibility of the relationship as it existed up to that point in time becoming more personal. However, this was not conduct of a sexual nature.

13 November 2020

265    On 13 November 2020, Ms Crauford and Mr Thomas continued their conversation regarding horses that Mr Thomas had located and had contemplated purchasing. In her affidavit evidence, Ms Crauford said of these messages (at [52]):

On 13 November 2020, [Mr Thomas] and I engaged in a conversation regarding the potential purchases of new horses by [Mr Thomas]. I offered my opinions on the horses and stated, “you’ll always get my honest opinion”. [Mr Thomas] replied noting “Everything you just said is what I love about you. I’m the same.” I found this comment offensive at the time because it suggested to me that he knew me intimately and he certainly did not. I did not address it because I feared it would be embarrassing and humiliating to bring it up with him. I was now committed to competing in Sydney and travelling with him. I did not want to risk blowing up those plans or discussion of awkward topics with him during the trip.

266    Late in the evening of 13 November 2020, commencing at 11.38pm, Mr Thomas and Ms Crauford had a further conversation via Facebook Messenger. In her affidavit evidence, Ms Crauford described the conversation and her reaction to it (at [53]):

Later that night, at approximately 11:38 pm, [Mr Thomas] told me that he was in Naracoorte and that I should come over. I declined the invitation. My interest in the relationship with him was exclusively related to horses and showjumping and I did not think that interest would be furthered by visiting him late at night. He replied saying “Could catch up Sunday both going home” followed by a message saying “I just finished. I need sleep. Speak tomorrow xx”.

267    While I accept that Ms Crauford may well have felt uncomfortable about aspects of these exchanges, I would not characterise Mr Thomas’s conduct in sending these messages as conduct of a sexual nature.

15 November 2020

268    On 15 November 2020, Ms Crauford and Mr Thomas discussed Ms Crauford’s plans for travelling to Western Australia to compete in a show jumping competition. Ms Crauford had agreed to ride a list of horses owned by Shaun Squire for Mr Thomas while she was in Western Australia. The following conversation occurred at 3.59pm:

269    Ms Crauford did not respond to Mr Thomas’s message sent at 4.23pm.

270    In her affidavit evidence (at [54]), Ms Crauford described the way the “hottest chick at the show” comment, and the rest of the exchange, made her feel in the following terms:

This comment made me feel very uncomfortable, frustrated and humiliated. I remember thinking the focus of the comment was on my appearance and my appearance was being sexualised. The prospect of Shaun, who I did not know at the time looking for me based on my sexualised appearance was humiliating, as was the thought of the conversation between [Mr Thomas] and Shaun. I decided at this point that I needed to let [Mr Thomas] know that this was not acceptable, but I was still wary of an embarrassing “blow up”. Arrangements were in place to go to Sydney and my interest in an on-going professional association with [Mr Thomas] remained. I responded “Platonically thats [sic] very kind. BUT let me know when it’s the end of the weekend and he still hasn’t found me!”. When I wrote it my intention was to be very direct but still respectful. [Mr Thomas] then immediately responded stating “You’re funny. I also said she’s the one with legs to die for. He may find you that way”. I opted not to reply to this statement, frustrated that he did not seem to take the hint to keep his language platonic.

I accept Ms Crauford’s evidence about the way she felt about these messages, and her response.

271    Mr Thomas’s conduct in sending these Facebook messages met the definition of sexual harassment. His statements were of a sexual nature. They referred to Ms Crauford in terms that suggested that he viewed her as a sexual object. Moreover, they referred to what he had, apparently, said to a male friend (whom Ms Crauford did not know), evidently for their shared amusement. A reasonable person would have understood Ms Crauford’s response as a clear, though measured, statement that Mr Thomas’s sexualised comments were unacceptable to her – or, at the least, would have appreciated that that was possibly what she meant to convey. Notably, Mr Thomas did not suggest that he did not understand the meaning of the word “platonically”. Both his initial comment, and his further reply, again referring to Ms Crauford in a sexualised way, were made in circumstances where a reasonable person would have anticipated the possibility that they would have offended, humiliated or intimidated her.

272    Later in the evening of 15 November 2020, Ms Crauford learned of new border restrictions arising from the COVID-19 pandemic, which prevented her from travelling to Western Australia as planned. Ms Crauford called Mr Thomas to discuss the cancelled plans, and spoke about her disappointment during this conversation. Following the telephone conversation, Ms Crauford and Mr Thomas had the following conversation via Facebook Messenger at 9.46pm:

273    Ms Crauford said in her affidavit evidence that Mr Thomas’s use of the word “sweety” was “way too personal”. Compared with “Babe”, the term sweety less obviously implies a sexual or romantic interest, although it could be considered condescending. It was used in a context where Mr Thomas was expressing sympathy. I would not find that the use of the expression, in that context, was conduct of a sexual nature.

16 and 17 November 2020

274    In the evening of 16 November 2020, Mr Thomas sent Ms Crauford a message via Facebook Messenger after the program for the Sydney Show had been released. The following conversation took place, continuing into the early hours of the morning of 17 November 2020:

275    Mr Thomas’s comment “No pony jumping events” was evidently a dig at the size of Ms Crauford’s horse, Teddy. These comments were evidently made jokingly and were calculated to make Ms Crauford feel uncomfortable. The juxtaposition of Mr Thomas’s earlier sexualised comments about Ms Crauford’s physical appearance with statements questioning her self-characterisation as a “woman” and stating that she was “barely an adult” was such that a reasonable person would have anticipated the possibility that she would be offended or humiliated.

276    This conversation must be considered together with the further exchange of Facebook messages on the morning of 17 November 2020, starting from 7.41am:

277    Although Ms Crauford’s messages were acerbic or sarcastic, and in that sense could be understood as a kind of joke, it is evident that Ms Crauford was concerned about Mr Thomas’s comment that she was “barely an adult”. It is also clear enough that Ms Crauford’s response, “Intelligent is right!!” was a deliberate attempt to avoid responding to Mr Thomas’s description of her as a “beautiful, gorgeous adult”, and to accept only a compliment that did not relate to her physical appearance. Mr Thomas must have appreciated that Ms Crauford had consciously engaged with only one aspect of his description of her, because his own reply deliberately referenced the other two aspects.

278    A reasonable person would have anticipated the possibility that Ms Crauford would have been offended, intimidated or humiliated by Mr Thomas’s statements that she was a beautiful, gorgeous adult and – especially in light of her response – by his renewed insistence that she was beautiful and gorgeous as well as intelligent. Viewed as a whole, Mr Thomas’s messages on 16 and 17 November 2020 were deliberately flirtatious, and they focussed on Ms Crauford’s physical beauty, in circumstances where she had previously attempted to brush off remarks of a similar kind, and was signalling fairly clearly that she was not comfortable with his referring to her in that way. In my view this should be characterised as conduct of a sexual nature which met the definition of sexual harassment.

279    Ms Crauford’s evidence in cross-examination was that she did not construe this as “a sexual advance”. When asked directly whether she was offended by the message, she said that she was not offended. When it was put to her that she took it as a compliment she responded, “I took it as a slightly inappropriate compliment, but yes”. Ms Crauford was not asked whether she was intimidated or humiliated by the message. This is ultimately an objective question which does not depend on Ms Crauford’s actual reaction at the time or her characterisation of it in the course of giving evidence. As explained above, the circumstances are such that a reasonable person would have anticipated the possibility that she would have been offended, intimidated or humiliated.

280    Later in the night on 17 November 2020 and at the end of a further exchange of Facebook messages, Mr Thomas sent Ms Crauford a message that read, “You go to sleep. You’ve got your exam tomorrow. You’re an amazing person and I really want you to work with me. Who knows where it could all lead.” After Ms Crauford stated that she was still in lectures, he followed up with a further message that read, “I really love the commitment you have towards your uni stuff and love your perfection with your riding. I love the way you set up different exercises etc[.]” These messages were excessively complimentary. Ms Crauford’s evidence was that she “thought they were overly familiar and intimate and implied we had a much closer, personal relationship than was the case”. While I accept that general characterisation of the messages, I would not characterise sending them as conduct of a sexual nature.

18 November 2020

281    On 18 November 2020 at 7.09am, Mr Thomas sent Ms Crauford a message that read, “Good morning, good luck today in your exam x”. I would not characterise the sending of that message as conduct of a sexual nature.

282    Later on 18 November 2020, at 2.45pm, Mr Thomas sent a Facebook message that apparently referenced news about the COVID-19 situation. The following exchange of messages occurred throughout the afternoon and into the evening:

283    These comments were again overly familiar. They referenced Ms Crauford’s body. They were capable of being mildly offensive and could easily be regarded as inappropriate. However, I would not characterise them as sexual in nature.

20 November 2020

284    On 20 November 2020, at 10.25am, Mr Thomas sent Ms Crauford a message that stated, “Happy birthday to one of the nicest beautiful young ladies I know. Hopefully you still have a wonderful day with the amazing Ted x.” Later that day, Mr Thomas inquired about Ms Crauford’s day and said, “you’re a special person and deserves [sic] the best”, and said that he could not wait for Sydney. None of these comments was overtly sexual and I do not think the giving of general compliments should be characterised as conduct of a sexual nature where this occurred in the context of wishing Ms Crauford well on her birthday.

285    Later in the evening of 20 November 2020, Mr Thomas sent Ms Crauford a Facebook message asking if she was interested in “moving up here” (ie, closer to him in the Adelaide Hills) after Christmas. She answered to the effect that she did not even have plans for Sydney at that time.

23 November 2020

286    On 23 November 2020 at 1.03pm, Mr Thomas sent Ms Crauford a message that read, “I can’t tell you how much I’m looking forward to this trip[.]” Ms Crauford responded with “I’ve made plans FYI”. As mentioned at [20] above, Ms Crauford and Mr Thomas then had a phone discussion and it was arranged that Victor would stay at Ms Crauford’s house in Mt Gambier. Ms Crauford offered to pick up Victor from Keith at 7.30am on 24 November 2020 and to exercise him, and Mr Thomas agreed to reimburse her for fuel.

287    After this phone call, Mr Thomas sent Ms Crauford a Facebook message that read, “What you’ve done Kate is super special. Words cannot explain how much I appreciate it x”. I would not characterise the sending of this message as conduct of a sexual nature.

288    Victor stayed at Ms Crauford’s house between 24 November 2020 and 1 December 2020 and she exercised him.

In-person conduct of Mr Thomas on the Sydney trip

289    For the reasons explained at [59]-[74] above, I am not satisfied that any of the connecting factors provided for in s 9 of the SD Act applied in relation to the alleged physical conduct of Mr Thomas on the Sydney trip, which Ms Crauford alleges constituted sexual harassment. Therefore, on my understanding of the way s 9 operates, the prescribed provisions of Division 3 of Part II of the SD Act do not have effect in respect of that conduct.

290    Given that I have heard the evidence, and since it is possible that my conclusions about the application of s 9 of the SD Act to this conduct could be found on appeal to be wrong, it is appropriate that I proceed to make findings of fact in relation to the question of whether that conduct occurred: see, eg, Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37 at 142 [9], 168-9 [113] (French CJ, Kiefel, Bell, Keane and Nettle JJ); Massoud v Nationwide News Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150 at 480 [35] (Leeming JA; Mitchelmore JA and Simpson AJA agreeing).

Travel to Sydney – 2 December 2020

291    As mentioned above (at [21]), on 1 December 2020, Ms Crauford and Mr Thomas departed Ms Crauford’s house in Mt Gambier to travel to Sydney for the Sydney Show, stopping at the Tarcutta Halfway Motor Inn in the evening. On 2 December 2020, Ms Crauford drove herself and Mr Thomas from Tarcutta to the Slater residence, where they intended to stay for the duration of the Sydney trip.

292    Ms Crauford gave evidence that, at some point during the drive from Tarcutta to Sydney, Mr Thomas made a comment to her to the effect that he still occasionally slept with an ex-partner of his, using words to the effect of, “when it’s convenient”. Ms Crauford said that she was not otherwise aware that that person had been a partner of Mr Thomas. Ms Crauford alleges that this conduct constituted sexual harassment. Mr Thomas denied making any such comment. For the reasons already given, I prefer Ms Crauford’s evidence over Mr Thomas’s evidence, and I accept that Mr Thomas said words to the effect of those attributed to him.

293    I find that this was conduct of a sexual nature. It was a discussion in which Mr Thomas referenced having sex with another person. While I accept that Ms Crauford would have found it uncomfortable to hear Mr Thomas speak about this, on balance I do not think it should be concluded that a reasonable person would have anticipated the possibility that Ms Crauford would have been offended, humiliated or intimidated by Mr Thomas making this statement.

294    Later in the night of 2 December 2020, after they had arrived at the Slater residence and when Ms Crauford was in her room, she and Mr Thomas exchanged the Facebook messages set out at [119] above, in which Ms Crauford stated that she would not be employed by Mr Thomas but referred to the possibility of her working as an independent contractor riding horses.

The rapping of Victor – 3 December 2020

295    Ms Crauford described an incident that occurred when Mr Thomas asked her to ride Victor in the afternoon of 3 December 2020. Mr Thomas said that he wanted Ms Crauford to “go over some trot poles”. As explained in the evidence, this was an exercise in which poles or rails would be laid out on the ground, with the horse being ridden across the top of them. Mr Thomas laid out the poles in such a way that one end of the pole sat in an elevated cup, with the other end on the ground. This meant that the pole was at a shallow angle and was slightly elevated from the ground, meaning that the horse would need to lift its legs higher to trot over the pole. This a common exercise for a show jumping horse and does not itself involve any cruelty to the horse.

296    Ms Crauford’s evidence was that, once the poles were set up in this way, she rode Victor over the poles and that, as she did so, Mr Thomas used his foot to kick the pole up into Victor’s knees. She characterised this as rapping. Rapping a horse is a controversial training practice in which the trainer hits the horse’s legs as it jumps over a rail. This is designed to cause pain to the horse, making the horse think it has hit the rail and encouraging it to jump higher.

297    In her affidavit, Ms Crauford described what happened in the following terms (at [69]):

As I was going over the trot poles, [Mr Thomas] would rap the horse by kicking the rail up to the horse’s knees. I was taken aback by this because I did not know that [Mr Thomas] would rap the horse, and this practice was very dangerous and illegal. While I was unsettled and afraid, I continued to do flatwork on Victor before [Mr Thomas] asked me to go through the poles again. Victor was not my horse and I did not know how to respond or disagree with [Mr Thomas]. [Mr Thomas] rapped the horse three more times before I said words to the effect of “Victor needs no more of that”. I could tell that the horse had become terrified of [Mr Thomas] regardless of where he stood in the arena, and I could feel that he was quite tense. I was scared too.

298    In cross-examination, and with reference to the parts of Mr Thomas’s affidavit evidence where he described the setup of the trot poles (which is set out below), Ms Crauford further elaborated on what had occurred, as follows:

Q.    Yes. So what physically was Mr Thomas doing? So, was he doing something while you were riding?

A.    So as he states, the poles were on cups. That is correct. However, he doesn’t state that he was putting his foot under the rail, as it was – had about a gap for his foot to go under it and kick it up as the horse was going over the rails.

Q.    But if you’re going over the rails, your focus is forwards in terms of where you were looking?

A.    I’m trotting. I’m going quite slow. The rails are not even three feet apart.

Q.    So you wouldn’t be in a position to see what Mr Thomas was doing?

A.    I certainly would be.

Q.    And you didn’t stop the exercise, knowing that rapping had taken place?

A.    I would say I was rather shocked, considering he would do that to his own horse. And I rode elsewhere until he asked me to do it again.

299    Insofar as this cross-examination suggests some criticism of Ms Crauford for failing to stop the exercise, I note that she did eventually stop the exercise. It is hardly surprising that she felt unsure how to respond to the situation in which she found herself.

300    In his affidavit, Mr Thomas said (at [15.45]):

I deny rapping the horse at any stage. The method used was my normal practice of trot poles with one end of the rail in a cup. The horse was not terrified of me and had no need to be.

301    Although he denied rapping Victor on 3 December 2020, Mr Thomas accepted that, on the following day, Ms Crauford raised with him her concern that he had done so. When addressing that later conversation, he said, “I denied that I had rapped my horse and explained the process I used with trot poles”. In these parts of his evidence, Mr Thomas seemed to be implying that Ms Crauford might somehow have confused the “method” that was his “normal practice” – laying out trot poles with one end of the rail elevated in a cup – with rapping the horse. This struck me as somewhat disingenuous. What Ms Crauford described witnessing was a distinct act by Mr Thomas while she was riding Victor over the poles; she was not suggesting that the way the exercise was set up itself amounted to “rapping”.

302    In the course of cross-examination, it was put to Mr Thomas that he had in fact “rapped” Victor. He initially responded to this question by saying, “I didn’t. Depends what you define as rapping.” When asked directly whether he had kicked up the pole or in any way manipulated the pole so that it hit Victor’s legs as he went over the poles, he denied that he had done so. Mr Thomas’s initial comment that it “[d]epends what you define as rapping” was revealing. It was suggestive of a view that what he had done did not technically amount to rapping, or that it was debatable whether the practice amounted to mistreatment of a horse. That was broadly consistent with Ms Crauford’s evidence about the way Mr Thomas responded when she later raised the rapping incident with him, which she described in cross-examination as follows:

Q.    And on that occasion, did you raise the topic of rapping the horse?

A.    Yes.

Q.    And did he deny the allegation?

A.    He said something about, it wasn’t like “that bad” or something – words to that effect, like it wasn’t – what he was doing wasn’t awful.

Q.    Did he say that he was using the practice of trot poles with one end of the rail in the cup?

A.    No.

Q.    Did he say that that’s not rapping?

A.    He didn’t say that, no.

303    Mr Thomas did not deny that Ms Crauford had said “that’s enough” (or words to that effect). That was contemporaneous conduct by her that was consistent with her view that Mr Thomas was mistreating Victor. Mr Thomas also did not dispute that, on the following day, Ms Crauford raised with him her concern that he had rapped Victor.

304    The only realistic possibilities are that Mr Thomas did do what Ms Crauford described, or that she was somehow mistaken about what she witnessed. Ms Crauford was very familiar with horses and show jumping training exercises. I do not accept that this is something about which she could plausibly have been mistaken. Ms Crauford’s evidence is consistent with her own contemporaneous and near-contemporaneous conduct in stopping the activity and raising her concerns about the rapping incident. I accept her evidence, and I reject Mr Thomas’s evidence on this issue.

Incident in Ms Crauford’s bedroom involving viewing the draw on her laptop – 3 December 2020

305    Ms Crauford described an incident that she said occurred on the evening of 3 December 2020. In her affidavit evidence in chief (at [70]), she said that she was lying on her bed, using her laptop to research the draw for the Sydney Show. Mr Thomas entered her room, wearing jeans and a polo. Ms Crauford was wearing a t-shirt and shorts. She was lying across the bed on her stomach. Ms Crauford said that Mr Thomas “came up and straddled and put his knees on the side of the bed and put his hand over me so the upper half of the body was over me without touching me”. She described his being above her, with both of his hands on either side of her. He had both of his legs to her left side and was reading the laptop over her right shoulder. She said that she felt extremely uncomfortable and paralysed and was not able to move. She went on to say:

When I felt that I needed to do something, I recall that I looked at [Mr Thomas] very intently and said words to the effect of “what are you doing”. [Mr Thomas] stood up and started moving towards the door. [Mr Thomas] then stood near the doorway to my room for about 10-15 seconds staring at me with a smirk on his face and without saying anything. I felt extremely uneasy, and just ignored him. [Mr Thomas] slowly turned and walked away. I called my mother shortly after and reported this incident to her.

306    Mr Thomas’s evidence about this occasion was that Ms Crauford called out to him, that he entered her room, that she was sitting on the edge of the bed rather than lying face down on the bed, and that he stood next to her while looking at the laptop. He did not, on his version of events, get onto the bed, lie on the bed, or bend over Ms Crauford. He also denied that Ms Crauford said anything like “What are you doing”, and denied staring at her from the doorway of the room afterwards.

307    It was submitted on behalf of Mr Thomas that his version of what occurred on this occasion was more credible than Ms Crauford’s. I do not accept that submission. There is nothing particularly improbable or incredible about Ms Crauford’s account of what occurred. On the contrary, Ms Crauford carefully described Mr Thomas’s conduct in a way which sounds plausible to me, and which made it clear that he did not make physical contact with her on this occasion.

308    Insofar as it is suggested that there is some inconsistency in the way that Ms Crauford has described this incident, I do not find that there is any significant inconsistency that causes me to doubt that the incident occurred. The psychiatrist Dr Ewer described Ms Crauford’s report of this incident as an allegation that Mr Thomas “lay next to Ms Crauford on her bed in her bedroom” or “[lay] down on the bed close to Ms Crauford”. Both descriptions are broadly consistent with the way Ms Crauford described the conduct of Mr Thomas. It is possible that she described the conduct slightly differently to Dr Ewer than in her evidence, but it is also possible that Dr Ewer, either when making his notes or writing his report, failed to capture some of the nuance of what Ms Crauford described. He was, presumably, not attempting to take a detailed statement from her but attempting to describe the nature of the incident.

309    As I have already said, I generally found Ms Crauford to be a credible witness and I accept her evidence about what occurred on this occasion. It is difficult to see how Ms Crauford could be mistaken about at least the main features of the incident as she described it, and in particular about the general position of Mr Thomas’s body with respect to hers. On Ms Crauford’s account, Mr Thomas, while leaning over her body with his legs both on one side and his hands on either side of her, did not make physical contact with her; he must have been being careful to avoid touching her. Had Ms Crauford dishonestly invented this episode, one might have expected her to claim that Mr Thomas touched her in some way. If she invented this incident, she did so in a way that made it arguably ambiguous as to whether it even involved sexual conduct on the part of Mr Thomas. These features of her account lend support to my conclusion that it is accurate.

310    Moreover, the episode as described by Ms Crauford is, in my view, broadly consistent with a general pattern of behaviour on the part of Mr Thomas revealed by the Facebook messages. This conduct involved Mr Thomas gradually exploring and pushing the boundaries of the relationship between himself and Ms Crauford, in this case by placing himself in a position that brought him into quite intimate physical proximity, while not making physical contact.

311    For the reasons already explained above, I am not prepared to rely on Mr Thomas’s evidence where it is self-serving and conflicts with the evidence of Ms Crauford. I reject his account of this incident and accept Ms Crauford’s evidence on the balance of probabilities.

312    Mr Thomas submits that, even on Ms Crauford’s version of what occurred on this occasion, I should find that it does not amount to sexual harassment. He submits that I should find that this was not conduct of a sexual nature. Mr Thomas points out that he did not contemporaneously make any sexually suggestive remark, and did not try to kiss or touch Ms Crauford.

313    I do not accept these submissions. The incident occurred on Ms Crauford’s bed. There was no need for Mr Thomas to place himself in the position he did, with part of his body over the top of Ms Crauford’s body, in order to see the laptop screen; it would have been sufficient for him to stand nearby, or to sit on the bed. The position that Ms Crauford described Mr Thomas placing himself involved a degree of intimacy. The relationship between Mr Thomas and Ms Crauford was not one in which they had otherwise been in close physical proximity in such a way; this was a significant unilateral pushing of the boundaries of physical intimacy.

314    This incident, like the further conduct that I find occurred later, which is described below, involved Mr Thomas opportunistically taking advantage of a situation that was not overtly or obviously sexual in order to become more physically close to Ms Crauford than was necessary. I find that he did so because he was romantically or sexually attracted to Ms Crauford. His conduct is to be assessed in a context where he had, a couple of weeks earlier, sent Ms Crauford Facebook messages addressing her as “Babe”, insisting that she “loved” him, stating that he had told Shaun to “look for the hottest chick at the show”, that she had “legs to die for”, and that she was “a beautiful, gorgeous adult”. Mr Thomas plainly had a sexual or romantic interest in Ms Crauford of some kind. Taking all these matters into account, Mr Thomas’s conduct in lying on the bed should be characterised as sexual in nature, although I would accept that the features of the conduct to which Mr Thomas refers place it at the low end of the range of conduct of a sexual nature, as far as physical conduct is concerned.

315    Given that Ms Crauford had made it fairly clear that she was not seeking an intimate relationship with Mr Thomas, and had signalled that she was uncomfortable with comments that implied that he viewed her in a sexual way, a reasonable person would have anticipated the possibility that Ms Crauford would have been offended or intimidated by Mr Thomas’s conduct on the bed, in close physical proximity to her and with his body positioned over the top of hers, and in the doorway of her room. Had the SD Act applied to this conduct, I would find that it constituted sexual harassment.

Hugging incident – 4 December 2020

316    On the morning of 4 December 2020, Ms Crauford drove herself and Mr Thomas to the Sydney Show. Her evidence is that she witnessed Mr Thomas kick Victor in the head while he was tied to the side of the float. Later in the day, Ms Crauford helped Mr Thomas warm up and prepare Victor. She then went back to the float to check on Teddy. When she arrived, she found that Teddy’s lead rope was broken, the horses were thirsty and the trailers were messy. Ms Crauford was upset by what she perceived to be a lack of respect for her property on the part of Mr Thomas, as well as by his treatment of his horse.

317    Ms Crauford’s evidence was that, over several conversations with Mr Thomas, she raised with him matters that were of concern to her. The substance of this aspect of her evidence was undisputed. In the course of cross-examination, Mr Thomas said that there had been a lot of arguments between himself and Ms Crauford. He accepted that, at some point on 4 December 2020, Ms Crauford raised with him her concern that he had rapped Victor. He appeared to accept that she had raised a concern that he was giving others the impression that he was her coach (though he denied doing anything to give the impression that he was her coach). He accepted that Ms Crauford had raised concerns about Mr Thomas’s treatment of her property, and about Teddy’s lead rope being broken at one point earlier on 4 December 2020. The main relevance of these matters is that Ms Crauford’s attempts to raise her concerns gave rise to the context in which she alleges that Mr Thomas engaged in two further acts which she claims amounted to sexual harassment.

318    Ms Crauford’s described an incident on 4 December 2024 in which she alleges that Mr Thomas hugged her. Ms Crauford’s account of the incident is as follows (at [74] of her affidavit):

This made me frustrated and upset and I wanted to have a private conversation with [Mr Thomas]. I recall trying to have a polite conversation with [Mr Thomas] (back at [the Slater residence]) while still telling him that I was uncomfortable being tricked into being involved in rapping a horse, which was illegal. I also raised other issues such as [Mr Thomas’s] lack of respect for my property, and the fact that he was representing to other people that I was his student or I had a closer relationship with him because I agreed to transport him to Sydney. I recall that [Mr Thomas] then started crying and called me “mean”. Once I talked [Mr Thomas] down, he asked me whether he could get a hug. I certainly did not want to hug [Mr Thomas] but he proceeded to latch onto me for approximately 40 seconds. I recall standing with arms to my side and not returning the hug. This interaction left me feeling very confused and uncomfortable.

319    Ms Crauford was consistent in her evidence about this incident. In cross-examination, she gave the following evidence:

Q.    He didn’t try and grope you or anything like that?

A.    It was a one-sided hug that I was given, so it felt like it was a sort of groping, in a sense.

320    I understand the effect of Ms Crauford’s evidence to be that the hug constituted an ongoing unwelcome and unreciprocated touching of her, and that that is what it made it feel like a sort of groping.

321    Mr Thomas accepts that there was a conversation in which Ms Crauford raised the issues identified above. He denies that he cried, or asked for a hug, or hugged Ms Crauford. I do not accept his evidence on this issue. I accept Ms Crauford’s evidence and I find on the balance of probabilities that Mr Thomas did hug Ms Crauford as she described.

322    Mr Thomas submits that, even if I found that there was a hug, the circumstances do not suggest that it was sexual in nature. He points out that Ms Crauford admitted there was no sexual advance or request for a sexual favour. He submits that, if there was a hug, it was a desire for comfort, not something sexual, that it took place in the context of two people who had been friends, and in the context of an argument that was not about “relationship” issues but about the treatment of horses. There was nothing sexual about the discussion.

323    I accept that the discussion itself was not sexual. I think the question of characterisation of the hug as sexual conduct is a difficult one. For a person who is apparently upset, to seek a hug, or even to force a hug on someone else, would not ordinarily be sexual conduct. That may be so even if it seems unduly familiar to the other person.

324    Given the earlier context of sexual conduct on the part of Mr Thomas, however, a real question arises as to whether this was an instance of his taking advantage of an apparently non-sexual situation where physical contact might be expected, to deliberately (ie, with a sexual motive) bring himself into physical contact with Ms Crauford. This is a difficult judgement to make. On Ms Crauford’s evidence, which I accept, she did not respond to the hug, and it was, in her words, “a one-sided hug”. It is possible that Mr Thomas was genuinely upset and seeking comfort, and was oblivious as to whether his conduct was unwelcome or inapposite, or whether the hug was being reciprocated. However, his making prolonged physical contact with Ms Crauford – a person to whom he was evidently sexually attracted – was consistent with his other conduct in Sydney, taking advantage of opportunities to be physically close to her. I also have regard to the fact that this incident took place between the incident on the bed on 3 December 2020 and the towel incident later on 4 December 2020, which I describe below. It was part of a pattern of behaviour which is not easily explicable otherwise than as being sexually motivated. On balance, I would characterise the hug as conduct of a sexual nature.

325    Given the context, I accept that a reasonable person would have anticipated the possibility that Ms Crauford would have been offended by Mr Thomas’s conduct in hugging Ms Crauford in the circumstances and manner in which he did – particularly once the hug had continued for a time and it must have been apparent that Ms Crauford was not responding or reciprocating. Had the SD Act applied to this conduct, I would find that it constituted sexual harassment.

Towel incident – 4 December 2020

326    In her affidavit evidence, Ms Crauford described this event as follows (at [75]):

Later in the night while I was in my room getting ready for bed [Mr Thomas] walked out of the bathroom and stood in my doorway wearing nothing but a loosely wrapped towel around his waist and told me with a smirk on his face words to the effect of “you need to go to bed missy”. I replied saying words to the effect of “oh, I didn’t realise I need fucking parental advice”. [Mr Thomas] giggled at my response, slowly turned and left my room with the towel wrapped around his waist that was half falling off. I was offended and intimidated by this and immediately phoned my mother and asked her to come to Sydney.

327    In the course of cross-examination, Ms Crauford expanded on her evidence of this event. She said that she was in her room, lying on her bed, and saw Mr Thomas in a towel in the doorway of her room. The doorway to the bathroom shared by Mr Thomas and Ms Crauford was adjacent to the doorway to Ms Crauford’s room. The effect of what Ms Crauford was saying was that Mr Thomas was framed by the doorway of her room. She agreed that Mr Thomas did not enter her room with a towel wrapped around his waist. In answer to a direct question which itself used the word “leer”, Ms Crauford said that Mr Thomas did leer at her, then explained that, in her words, he “float[ed]” there, when there was no purpose for him to stand there.

328    Mr Thomas categorically denied standing in or near Ms Crauford’s doorway dressed only in a towel. He said that he would always enter and leave the bathroom fully clothed.

329    For the reasons already explained, I prefer Ms Crauford’s evidence to that of Mr Thomas. Her evidence on this topic reflected the way she gave her evidence generally; she was careful, answered questions clearly when she felt she could remember, clarified when she was unsure of something, and did not overstate the nature of Mr Thomas’s conduct. I accept Ms Crauford’s account of this incident.

330    Mr Thomas submits that there was “nothing sexual about wearing a towel to and from the shower” and that “it might be different if he tried to make an advance on [Ms Crauford], but this is not the case”. I do not accept this submission. Mr Thomas’s conduct took place against the backdrop of a course of Facebook messages in which he had been inappropriately sexual in the language he used towards Ms Crauford, and other physical conduct towards her. She had made it clear enough that she did not welcome physical closeness with her comment following the incident on the bed and by not returning Mr Thomas’s hug. There was no need for Mr Thomas to stand or pause where Ms Crauford could see him on his way from the shower, or to talk to her while wearing his towel. Mr Thomas’s comment, “You need to go to bed, missy,” was demeaning. This was, in all the circumstances, a continuation of Mr Thomas’s relatively low-level sexual conduct towards Ms Crauford and an instance of his taking advantage of an ambiguous situation where he could plausibly deny the sexual nature of his conduct.

331    I find that this was conduct of a sexual nature. It was subjectively unwelcome. In the context in which it occurred, a reasonable person would have anticipated the possibility that Ms Crauford would have been offended or intimidated by it.

Incident in the car – 5 December 2020

332    According to Ms Crauford’s account, on the morning of 5 December 2020, she informed Mr Thomas that she would prefer to take the horses to the Sydney Show separately. She took Teddy first and, after competing in her class, returned him to the Slater residence and brought Victor to the Sydney Show. She made further observations that caused her to be concerned about Victor’s condition and what she be perceived to be Mr Thomas’s lack of care towards him. Ms Crauford then drove Mr Thomas back to the Slater residence, and again sought to raise her concerns with him. Ms Crauford in her affidavit described what occurred next as follows (at [79]):

… [Mr Thomas] and I started our journey back to the Slater Residence in my vehicle that I drove. During the drive, I raised a few concerns including the events that took place on 4 December 2020 and [Mr Thomas’s] treatment of his horse. I informed [Mr Thomas] that I did not feel respected and that I did not appreciate being lied to about him cooling Victor down. [Mr Thomas] immediately rubbed my leg for approximately 4 seconds saying words to the effect of “I do respect and listen to everything you say Katie”. I recall that I shuffled in the seat away from [Mr Thomas] and tensed my legs firmly. I was unable to stop the vehicle due to the particular road that we were on at the time. This continues to be a very disturbing memory to me and I can visually still remember the exact location that this incident occurred.

333    I have already made reference to Mr Thomas’s evidence in relation to this incident at [190]-[191] above. He denied that he touched Ms Crauford on the leg. In his evidence in chief, Mr Thomas suggested that the incident could not have happened as Ms Crauford described it because the vehicle in which they were travelling had a wide centre console that contained a fridge. In cross-examination, he accepted that he had been mistaken about this.

334    In Mr Thomas’s defence, he stated that, in the car, he told Ms Crauford that he did respect what Ms Crauford was saying (about his treatment of Victor) but knew what he was doing. In his affidavit evidence, Mr Thomas stated that, in the conversation in the car, he was “concerned with Kate’s attitude and disrespect” and that he “told her that I did not respect her opinions or her qualifications to make assessments of my horse’s condition”. That version of the conversation was put to Ms Crauford in cross-examination. She denied that Mr Thomas had said any of those things. In cross-examination, Mr Thomas stated that he did not recall saying that he respected Ms Crauford’s opinions. When the pleading in his defence was pointed out to him, he accepted that the pleading had been based on instructions given by him and that he “must have” said in the car that he respected Ms Crauford’s opinions. He then said that his evidence was that he did not know what he had said in the car but he was clear that he did not, in fact, respect Ms Crauford’s opinions. In the end he said he was “actually not sure”. His evidence in relation to this incident has been inconsistent and is unreliable.

335    For the reasons already explained, I do not accept Mr Thomas’s evidence and I accept Ms Crauford’s evidence. Her evidence in relation to the events in the car seems entirely credible to me. Mr Thomas’s alleged conduct in the car, including what he is alleged to have said to Ms Crauford, is consistent with the way he interacted with Ms Crauford and with his other behaviour on the Sydney trip. I find that Mr Thomas touched her on the leg as she described.

336    This incident is similar to the hugging incident, in that it was a physically intimate act performed by Mr Thomas in a context where he took advantage of the fact that there was a plausible non-sexual reason for him to comfort or touch Ms Crauford. For the same reasons as in relation to the hug, I find that Mr Thomas’s touching Ms Crauford on the leg was sexual conduct. I accept Ms Crauford’s evidence that the incident was disturbing to her. Given the context of the earlier events I have described, including the fact that Ms Crauford was upset by Mr Thomas’s behaviour with respect to the horses, I accept that a reasonable person would have anticipated the possibility that Ms Crauford would have been offended or intimidated by his placing and keeping his hand on her leg in these circumstances.

337    Although I do not particularly place weight on the fact of Mr Thomas’s denial that the four instances of physical conduct occurred in reaching my conclusion that each of them constituted conduct of a sexual nature, his (as I have found, false) denial that each of those incidents occurred is, in my view, consistent with there being a sexual aspect to that conduct.

Further Facebook message – 7 December 2020

338    On 7 December 2020 at 10.43pm, Mr Thomas sent Ms Crauford a Facebook message that read, “Hey, today was the Kate I love and enjoy being with. You are a beautiful gorgeous person when you want. Can it please stay like this xx[.]” Although similar to some of his earlier messages, this message was not alleged in Ms Crauford’s pleaded case to constitute sexual harassment, so it is unnecessary to say more about it. Mr Thomas sent one further Facebook message to Ms Crauford on each of 10 and 11 December 2020, neither of which was capable of constituting sexual harassment.

Summary of conclusions as to liability

339    I have concluded that the following instances of conduct by Mr Thomas met the statutory definition of sexual harassment in s 28A of the SD Act:

(1)    On 6 November 2020, Mr Thomas sent a series of Facebook messages in which he called Ms Crauford “Babe” and, shortly after, described her as loving him.

(2)    On 8 November 2020, Mr Thomas sent a Facebook message in which he described Ms Crauford as “the hot bar chick all the lads chat up”.

(3)    On 15 November 2020, Mr Thomas sent a series of Facebook messages in which he told Ms Crauford that he had described her to his friend, Shaun, as being “the hottest chick at the show” and as having “legs to die for”.

(4)    On 16 and 17 November 2020, Mr Thomas sent a series of Facebook messages in which he implied that Ms Crauford was not a “woman” and stated that she was “barely an adult”, and then described Ms Crauford as “a beautiful, gorgeous adult”.

340    There are other messages that can be regarded as being of a similar flavour, or consistent with Mr Thomas engaging in a course of conduct that included sexual harassment, but which I have found did not meet one or more of the aspects of the relevant definition. That is not to endorse those other messages as unproblematic when read in their full context, but to recognise that the application of the statutory standard must involve matters of judgement and degree.

341    I have also made factual findings that Mr Thomas engaged in the following additional conduct:

(1)    On 2 December 2020, on the drive to Sydney, Mr Thomas made a comment to Ms Crauford to the effect that he still had sex with a previous partner “when it’s convenient” (but I have not found that this met the definition of sexual harassment).

(2)    On 3 December 2020, Mr Thomas positioned his body alongside Ms Crauford on her bed at the Slater residence with his hands either side of her shoulders, then stared at her for a short time from the doorway of her room.

(3)    On 4 December 2020, Mr Thomas engaged Ms Crauford in a prolonged hug.

(4)    Later on 4 December 2020, Mr Thomas stood in or near the doorway to Ms Crauford’s room for an uncomfortably long period, wearing only a towel.

(5)    On 5 December 2020, Mr Thomas touched Ms Crauford’s leg over her clothing while she was driving.

342    Ms Crauford has not established that this conduct occurred in a context where the SD Act has operation, because she has not established that any of the circumstances required by s 9 was engaged. This conduct could not, therefore, constitute a contravention of the prohibition contained in s 28G(1) of the SD Act.

DAMAGES

General damages

Relevant principles

343    Where a court is satisfied that a respondent has engaged in unlawful discrimination, s 46PO(4) of the AHRC Act confers a power on the court to grant relief, including the power to make an order requiring the respondent to pay to the applicant damages by way of compensation for the loss or damage suffered by the applicant because of the conduct of the respondent: Richardson v Oracle Corporation Australia Pty Ltd (2014) 223 FCR 334; [2014] FCAFC 82 (Oracle) at 341 [21], 344 [33]-[34]; Ewin at 677 [596]-[597], 679 [605]. “Unlawful discrimination” is defined by s 3 of the AHRC Act to include sexual harassment under Part II of the SD Act. Section 46PO(4) confers a wide discretion as to the amount of compensation the Court may award for loss or damage suffered: Ewin at 678 [601]; Taylor at 75 [456].

344    In assessing damages under the AHRC Act, courts have been guided by the general principles of damages in tort. The general starting point for the assessment of damages under the AHRC Act is that the applicant should be returned to the position they might have been in but for the respondent’s unlawful conduct: Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 (Hall) at 238-9; Oracle at 342 [27]; Ewin at 678-9 [602]-[606].

345    It is appropriate to regard the conduct involved in sending the Facebook messages identified at [339] above as a course of conduct in which Mr Thomas sexually harassed Ms Crauford. An award of general damages should be made in favour of Ms Crauford in respect of that course of conduct insofar as it constituted prohibited sexual harassment.

346    Ms Crauford submits that an award of general damages in the range of $100,000 to $120,000 would be appropriate, reflecting the prevailing community standards and her pain and suffering caused by Mr Thomas’s unlawful conduct constituting sexual harassment. Ms Crauford submits that the Court should be guided by the principles outlined by Kenny, Besanko and Perram JJ in Oracle in exercising its discretion as to the quantum of damages to be awarded, namely that any award of damages to be ordered under s 46PO(4) of the AHRC Act should be made having “regard to the general standards prevailing in the community”: Oracle at 359-60 [95]-[96] (Kenny J).

347    Mr Thomas submits that any award of damages should be nominal, or within the range of $5,000 to $10,000.

348    In fixing the quantum of damages, I am conscious that damages are to be awarded in response to the conduct that contravened the SD Act. The other Facebook messages, and the physical conduct of Mr Thomas towards Ms Crauford in early December 2020, are part of the context in which the contravening conduct occurred but do not themselves sound in damages. Likewise, the conduct of Mr Thomas is relevant contextually insofar as it may have affected the impact of the contravening conduct on Ms Crauford but does not sound in damages.

Settlement deed

349    The award of general damages is complicated by the fact that Ms Crauford and Sophie Crauford and Equestrian SA and Equestrian Australia entered into a deed of settlement dated September 2023, in connection with claims that have some relationship to the claims against Mr Thomas in these proceedings.

350    In a letter dated 3 March 2023, the lawyers acting for the Craufords had made various complaints to the lawyers for Equestrian Australia. Sophie Crauford had also made a complaint to the Australian Human Rights Commission (AHRC) dated 25 August 2022, and an amended complaint to the AHRC pursuant to leave granted on 20 June 2023.

351    By form dated 16 March 2023, Sophie Crauford applied to amend her complaint to the AHRC to add that “these new complaints are against [two officers of Equestrian SA], and against [Equestrian SA] and [Equestrian Australia] for vicarious liability”. Having regard to the wider context (including the remainder of the content of the form and the lawyers’ letter of 3 March 2023), it is clear that the reference to vicarious liability of Equestrian SA and Equestrian Australia was intended to relate only to the conduct of the two officers named in the amended complaint.

352    By the terms of the deed, the Craufords granted a release to Equestrian SA and Equestrian Australia in respect of all claims arising from matters referred to in the letter of 3 March 2023, the AHRC complaint and the amended AHRC complaint. In exchange for those releases, the deed provided for sums of money to be payable by each of Equestrian SA and Equestrian Australia to Ms Crauford and Sophie Crauford.

353    The letter of 3 March 2023, the AHRC complaint and the amended complaint referred (among other things) to the conduct of Mr Thomas. The deed expressly did not release Mr Thomas from any liability he may have to the Craufords.

354    The focus of the Craufords’ claims against Equestrian SA and Equestrian Australia that were settled by the deed of settlement concerned the alleged action, or inaction, of Equestrian SA and Equestrian Australia in response to the conduct of Mr Thomas, including a claim of vicarious liability for conduct of two officers of Equestrian SA (but not for conduct of Mr Thomas). When the terms of the letter and the amended complaint are read carefully, it is apparent that the claims that were settled did not include a contention that Equestrian SA and/or Equestrian Australia were vicariously liable for the conduct of Mr Thomas that was said to amount to sexual harassment. That is perhaps unsurprising since, having regard to the terms of s 106 of the SD Act, it appears that any claim that Equestrian SA and Equestrian Australia were vicariously liable for the conduct of Mr Thomas in sexually harassing Ms Crauford would have been unlikely to succeed.

355    The claims that were settled by the deed of settlement were claims relating to conduct of Equestrian SA and Equestrian Australia acting through two persons other than Mr Thomas, in relation to the way they dealt with the Craufords’ complaints about Mr Thomas’s alleged sexual harassment. Although they were connected with the course of sexual harassment engaged in by Mr Thomas, they were not concerned with liability of Equestrian SA or Equestrian Australia for the sexual harassment itself. I therefore accept that the position is analogous to that which was found by Kenny J to exist in Oracle at 344 [33]-[34].

356    The evidence regarding the settlement with Equestrian SA and Equestrian Australia is incomplete in some respects. It is not clear how much of the settlement sum that was paid benefitted Ms Crauford, as opposed to Sophie Crauford. There is also no evidence of the quantum of the Craufords’ legal fees in connection with the dispute between the Craufords and Equestrian SA and Equestrian Australia. It can readily be inferred that they were not insubstantial. The claims which were released in exchange for the payment of the settlement sum were expressed to include legal professional costs and disbursements. However, given that the settlement sum did not relate to the conduct of Mr Thomas, this does not matter.

357    Mr Thomas did not submit that any damages he was required to pay should simply be reduced by the amount which Equestrian SA and Equestrian Australia agreed to pay to settle the claims of Ms Crauford and Sophie Crauford against them. In his oral closing submissions in reply, he submitted that the fact that Ms Crauford probably received a sum of money from the settlement should be taken into account (although it was not specified in what way). However, the main focus of his submission about the settlement deed was that the payment of sums of money by Equestrian SA and Equestrian Australia was relevant to the question of whether exemplary damages should be awarded against Mr Thomas.

358    I have not reduced the amount of damages I would award by reason of the payment of the settlement sum by Equestrian SA and Equestrian Australia.

Conclusions as to general damages

359    The conduct of Mr Thomas which amounted to sexual harassment contrary to s 28G of the SD Act was at the lower end of the range of seriousness of the kinds of conduct that may constitute unlawful sexual harassment. Nevertheless, that conduct has had a moderate adverse impact on Ms Crauford. I accept her evidence that she felt uncomfortable when Mr Thomas engaged in the conduct that I have found to constitute unlawful sexual harassment. I accept that the relationship between Ms Crauford and Mr Thomas was one that arose in the context of organised sport, in which Mr Thomas held a position of relative power. I accept Dr Ewer’s opinion that the course of conduct by Mr Thomas which Ms Crauford alleges constituted unlawful sexual harassment was likely a significant cause of Ms Crauford’s psychological symptoms.

360    I accept that Ms Crauford was likely affected not only by the sexual harassment but also by her having witnessed Mr Thomas’s mistreatment of his horse. To some extent, Ms Crauford’s later feelings about the sexual harassment that she suffered, and the psychological symptoms that flowed from them, are likely to have been exacerbated by these other circumstances. However, that does not mean that the injury to her feelings and distress were not “because of” the sexual harassment. Ms Crauford was also affected by the in-person conduct of Mr Thomas, to which (I have found) the SD Act did not apply. I accept that Mr Thomas’s unlawful conduct was a contributing cause of her injured feelings and distress, even though it was not the only causative factor.

361    Dr Ewer considers that, at least for a short period in the first part of 2021, Ms Crauford met the diagnostic criteria for a chronic adjustment disorder with depressed and anxious mood. Her symptoms returned later but this was due to other causes. He considers that she will make a full recovery. Dr Ewer considered the main cause of her condition to be the conduct of Mr Thomas amounting to sexual harassment. However, in drawing this conclusion, he had regard to her reports of Mr Thomas’s physical conduct as well as the conduct that I have found amounted to prohibited sexual harassment. I am also conscious that Ms Crauford’s mental health is likely to have been impacted more recently by events that occurred in the United States, including a toxic and abusive employment environment.

362    While, as already explained, I generally preferred the evidence of Dr Ewer to that of Prof Metzer, I do not find it necessary to decide whether the psychological symptoms Ms Crauford suffered should be characterised as an adjustment disorder. A better sense of what she is to be compensated for is obtained by focussing on her experience of psychological symptoms. I accept that she suffers anxiety and mild depression, and that in early 2021 she had difficulty sleeping. She was able to “shut down” her symptoms while in the United States, but they resurfaced when she returned to Australia. She felt anxious and insecure. Ms Crauford was, however, able to continue to study, work and compete in the sport of show jumping. She was able to maintain an intimate relationship for four years. Dr Ewer expressed the view that her social activities may have been reduced to some extent, but she has many friends, socialises regularly, and can interact appropriately with people.

363    In all the circumstances, I assess general damages in the sum of $15,000. I am conscious that this figure is much lower than some of the awards of damages made in some other recent cases, but I consider that that appropriately reflects the conduct that I have found contravened s 28G of the SD Act, and the nature and extent of its impact on Ms Crauford, taking into account that the unlawful conduct was only part of the cause of her psychological symptoms.

Special damages

364    Ms Crauford’s claim for relief states that she seeks special damages for past and future medical and counselling expenses. However, she developed no closing submissions in support of this part of her claim. Although there is evidence that Ms Crauford saw a general practitioner in Australia for several sessions over a month in around October 2022, there is no evidence of the cost of that counselling or treatment, or that any such cost was borne by Ms Crauford. Nor is there evidence that would enable me to assess the costs of any future counselling, assuming that could be attributed to that aspect of Mr Thomas’s conduct that amounted to unlawful sexual harassment.

365    Ms Crauford has not established a basis on which an award damages for past or future medical or counselling expenses should be made.

Exemplary damages

366    Ms Crauford seeks exemplary damages on the basis that, if the compensatory damages awarded are modest, an award of exemplary damages may be necessary to deter Mr Thomas from conduct of the kind he engaged in. Ms Crauford’s submission seems to suggest that, precisely because conduct is less obviously sexual harassment when it is at the lower end of seriousness, it is for that reason more insidious and requires a greater specific deterrent response, beyond the deterrent effect of an award of general damages.

367    I accept that the fact that Mr Thomas’s conduct is at the lower end of seriousness makes it insidious in the sense that it can be more plausibly denied that such conduct is sexual harassment, and that there may be less incentive for the victim of such harassment to vindicate their rights. However, the level of damages that is required as a deterrent should naturally bear some relationship to the seriousness of the conduct. The making of adverse findings and the entry of judgment against Mr Thomas, and the potential adverse effects for him, may also be expected to have a deterrent effect. In the circumstances of this case, I do not consider that a separate, additional, award of exemplary damages should be made.

Aggravated damages

368    Ms Crauford also seeks an award of aggravated damages.

369    Where appropriate, aggravated damages may be awarded in addition to general damages to compensate for the injury to the applicant’s feelings (such as insult or humiliation) caused by the respondent’s unlawful conduct: Taylor at 86 [523]-[524], citing Lamb v Cotogno (1987) 164 CLR 1 at 8 (Mason CJ, Brennan, Deane, Dawson, Gaudron JJ). As noted by Katzmann J in Taylor at 86 [524], aggravated damages may also be awarded in circumstances where the applicant’s distress is made worse by the respondent’s conduct in the events after the unlawful conduct has been committed. Aggravated damages should only be awarded, however, if the conduct of the respondent was “improper, unjustifiable or lacking in bona fides”: Taylor at 86 [525], citing Triggell v Pheeney (1951) 82 CLR 497 at 514 (Dixon, Williams, Webb and Kitto JJ).

370    On 10 December 2023, Mr Thomas published a Facebook post that read:

The last few days have been challenging and traumatic for me, and I have at last decided to have my say about the allegations of sexual harassment against me. This false accusation has been trialed numerous times over the past 3 years.

1. Equestrian SA disregarded the Claim

2. Equestrian Australia disregarded the Claim

3. Sports Integrity disregarded the Claim

4. Rohan [sic] Consulting disregarded the Claim

5. Human Rights disregarded the Claim

6. Supreme Court SA disregarded the Claim

However, it seems that the Claim may be heard in the Federal Court next year!

I have spent over $150,000 on defending myself.

There is so much corruption linked to this case … it is even rumoured that the new ESA Board has funded The Crauford case in excess of $25,000 plus!

There are many people trying to protect themselves, including a rider who is believed to have contacts in The Advertiser! I have reached out to The Advertiser but they will not respond to me.

I am unable to name names, but you know who you are.

There is also a lot of jealousy within the Showjumping community.

371    The true position was as follows:

(1)    A tribunal convened by Equestrian SA at Ms Crauford’s request had not reached a determination and those proceedings had “closed with no outcome being reached” because the tribunal was “now out of time”.

(2)    Ms Crauford’s complaint to Sports Integrity Australia was not determined because Equestrian Australia had adopted the National Integrity Framework two weeks after the last conduct the subject of her complaint. Sports Integrity Australia held that it had “no jurisdiction to handle matters that occurred prior to Equestrian Australia’s adoption of the National Integrity Framework”.

(3)    A firm called Rogan Consultancy was appointed by Equestrian SA to conduct an independent investigation. Mr Thomas declined to cooperate in that investigation and the investigator found that three complaints had been substantiated: Thomas v Equestrian Australia Ltd [2022] SASC 151 (Thomas v EA) at [4].

(4)    The AHRC terminated a complaint made by Ms Crauford in July 2023 after noting that Mr Thomas had “declined participating in any conciliation process” and finding that “there is no reasonable prospect of the matter being settled by conciliation”.

(5)    In Thomas v EA, the Supreme Court of South Australia held that Equestrian Australia could not commence disciplinary proceedings against Mr Thomas under its by-laws, despite the finding that Ms Crauford’s complaints had been substantiated, because her complaint was not made within a 14-day period as required by the by-laws.

372    On 14 November 2023, a case management hearing in the present proceedings took place before Charlesworth J. In his Facebook post on 10 December 2023, Mr Thomas also stated:

The Federal Court Judge Natalie Charlesworth has said that “the text messages may not meet the legal definition of Sexual Harassment as Ms Crauford did not object to any of the content”.

I thank everyone that has sent me messages of support over the weekend – it means a lot.

373    In fact, Charlesworth J did not make the statement attributed to her, or a statement to that effect. In his evidence, Mr Thomas has accepted that this statement was wrong and has apologised for making it. He claimed in cross-examination that he had misread or misunderstood the outcome of the case management hearing, but this was a bare assertion, and he provided no explanation as to how such a misunderstanding could have arisen. I accept that his apology to the Court is genuine, but there is no evidence that he has corrected the misleading statement on Facebook. I infer that Mr Thomas made the statement without really caring, and without checking, whether it was true or not, because he thought that doing so would tend to build up his own reputation and publicly discredit Ms Crauford’s claims.

374    Ms Crauford’s unchallenged evidence about the impact of Mr Thomas’s Facebook post is that “[s]eeing the Facebook post and knowing it has been seen by people involved in the equestrian scene in Australia is extremely distressing and has made me feel worse than I already did”. I accept her evidence.

375    I consider that Mr Thomas’s conduct in making the Facebook post warrants an award of aggravated damages. Both aspects of the post involved the publication of misrepresentations about what had occurred, in circumstances where the true facts should have been known to Mr Thomas or could easily have been checked by him. Mr Thomas was, at the least, reckless as to whether what he was saying was true, in circumstances where it suited his interests to present a misleading picture. As Mr Thomas also said in his evidence, he was trying to defend himself in the public eye – but he did so in a way that was calculated to convey that Ms Crauford’s complaints had repeatedly been decided on their merits in favour of Mr Thomas, when in fact, in each case, they had either not been considered on their merits or had been found to be substantiated.

376    I assess aggravated damages in the sum of $6,000.

CONCLUSIONS

377    For the reasons explained above, I have found that Mr Thomas engaged in certain conduct which satisfied the definition of “sexual harassment” and which was in contravention of s 28G(1) of the SD Act. I award general damages in the amount of $15,000 and aggravated damages in the amount of $6,000. I will hear the parties as to costs.

Associate:

Dated:    23 October 2025