Claim­ing to be a mod­­ern-day Mr Dar­cy was no defence to sex­u­al harassment

In the recent mat­ter of Hugh­es trad­ing as Beesley and Hugh­es Lawyers v Hill [2020] FCAFC 126 (Hugh­es v Hill), the Full Court of the Fed­er­al Court of Aus­tralia reject­ed a cat­e­gori­sa­tion of con­duct by a lawyer towards his employ­ee as roman­tic ges­tures akin to those of the well-known lit­er­ary fig­ure, Mr Dar­cy, rather than as sex­u­al harassment.

This case has attract­ed wide­spread atten­tion, large­ly owing to the unusu­al fac­tu­al cir­cum­stances and the ​“Mr Dar­cy” sub­mis­sions made on behalf of the Appli­cant in the appeal, Mr Hugh­es. How­ev­er, Hugh­es v Hill is also instruc­tive from a legal per­spec­tive — it con­sid­ers the def­i­n­i­tion of sex­u­al harass­ment under the Sex Dis­crim­i­na­tion Act 1984 (Cth) (SD Act) and demon­strates the increas­ing ten­den­cy of the Court to award and uphold sig­nif­i­cant sums of gen­er­al and aggra­vat­ed dam­ages in sex­u­al harass­ment cases. 

The Facts

In May 2015, Mr Hugh­es employed Ms Hill as a para­le­gal in his bou­tique firm locat­ed near Byron Bay in north­ern NSW. Ms Hill was recent­ly sep­a­rat­ed from her hus­band and resid­ing in north­ern NSW so that her chil­dren could main­tain a rela­tion­ship with their father. Jobs were scarce for junior lawyers in that area, and Mr Hugh­es had promised that he would train Ms Hill as a solicitor. 

Mr Hugh­es was a senior legal prac­ti­tion­er and the prin­ci­pal of his small firm. 

Dur­ing her employ­ment, Mr Hugh­es act­ed for Ms Hill in a medi­a­tion with her for­mer hus­band. As a result, Mr Hugh­es obtained access to both con­fi­den­tial and per­son­al infor­ma­tion relat­ing to Ms Hill. 

The pow­er dif­fer­en­tial between the par­ties was both obvi­ous and significant. 

In June 2016, Ms Hill resigned from her posi­tion and filed a com­plaint with the Aus­tralian Human Rights Com­mis­sion alleg­ing sex­u­al harass­ment by Mr Hugh­es. The mat­ter did not resolve in the AHRC. 

Ms Hill then com­menced pro­ceed­ings in the Fed­er­al Cir­cuit Court. At first instance, the tri­al judge accept­ed that Mr Hugh­es had sub­ject­ed Ms Hill to sex­u­al harass­ment including:

• send­ing repeat­ed, unso­licit­ed emails to Ms Hill in which he pro­fessed his love and offered roman­tic relations;
• enter­ing Ms Hill’s room while on a work trip to Syd­ney and wait­ing on her bed in his under­wear for her return;
• pre­vent­ing Ms Hill from leav­ing her office until she gave him a hug; and
• mak­ing thin­ly veiled threats to Ms Hill to the effect that her employ­ment was con­tin­gent upon them enter­ing a roman­tic relationship.
• his con­duct towards Ms Hill was not sex­u­al in nature – rather, it should be seen as being like Mr Dar­cy in Pride and Prej­u­dice (Mr Dar­cy was referred to in the actu­al submission);
• the award of $120,000 in gen­er­al dam­ages was exces­sive; and
• that there was no basis for the award of aggra­vat­ed damages. 
• First, Mr Hugh­es alleged that the tri­al judge had been incor­rect in his find­ing that Mr Hugh­es’ con­duct dur­ing the tri­al sup­port­ed an award of aggra­vat­ed damages. 
• Sec­ond­ly, Mr Hugh­es sub­mit­ted that, even if he was wrong on the first point, the tri­al judge had still erred in con­clud­ing that his con­duct had increased Ms Hill’s suffering. 

The tri­al judge accept­ed that at no point had Ms Hill encour­aged Mr Hugh­es and that her behav­iour unam­bigu­ous­ly reject­ed Mr Hugh­es’ advances. 

After find­ing that Mr Hugh­es had indeed engaged in sex­u­al harass­ment towards Ms Hill, she was award­ed $120,000 in gen­er­al dam­ages and $50,000 in aggra­vat­ed dam­ages. The aggra­vat­ed dam­ages were award­ed large­ly on the basis of the man­ner in which Mr Hugh­es had con­duct­ed him­self dur­ing the tri­al, includ­ing that he inap­pro­pri­ate­ly (and in breach of his pro­fes­sion­al oblig­a­tions as a solic­i­tor) used Ms Hill’s con­fi­den­tial infor­ma­tion which he had obtained while act­ing for Ms Hill dur­ing the medi­a­tion with her for­mer hus­band. Indeed, the con­duct of Mr Hugh­es dur­ing the tri­al was labelled by the tri­al judge as ​‘despi­ca­ble’.

Mr Hugh­es appealed this deci­sion to the Fed­er­al Court on three grounds:

Defin­ing Sex­u­al Harassment 

By way of back­ground, sec­tion 28B(1)(a) of the SD Act pro­vides that it is unlaw­ful for a per­son to sex­u­al­ly harass an employ­ee of the per­son. Sec­tion 28B is con­tained with­in Part II of the SD Act. Con­duct which is unlaw­ful under Part II of the SD Act is includ­ed with­in the def­i­n­i­tion of ​‘unlaw­ful dis­crim­i­na­tion’ in s 3 of the Aus­tralian Human Rights Com­mis­sion Act 1986 (Cth) (AHRC Act). This means that a per­son in breach of s 28B is simul­ta­ne­ous­ly con­sid­ered to have engaged in ​‘unlaw­ful dis­crim­i­na­tion’ for the pur­pos­es of the AHRC Act. In cer­tain cir­cum­stances, this empow­ers the Fed­er­al Cir­cuit Court or Fed­er­al Court to make orders includ­ing the award of ​‘dam­ages by way of com­pen­sa­tion for any loss or dam­age suf­fered because of the conduct’. 

On appeal, Mr Hugh­es did not allege that the con­duct towards Ms Hill did not occur. Rather, he sub­mit­ted that the con­duct could not be char­ac­terised as ​‘sex­u­al’ for the pur­pos­es of the SD Act. 

Notably, s 28A of the SD Act pro­vides the fol­low­ing def­i­n­i­tion of what con­sti­tutes sex­u­al harass­ment under s 28B(1) of the SD Act: 

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

1. the per­son makes an unwel­come sex­u­al advance, or an unwel­come request for sex­u­al favours, to the per­son harassed; or
2. 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:

1. 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;
2. the rela­tion­ship between the per­son harassed and the per­son who made the advance or request or who engaged in the conduct;
3. any dis­abil­i­ty of the per­son harassed;
4. 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.

Jus­tice Per­ram pro­vid­ed an expo­si­tion of the three ele­ments at play in s 28A of the SD Act as follows:

“[22] 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).

[23] 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.

[24] 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.”

In his sub­mis­sions, Mr Hugh­es’ senior coun­sel argued for a dis­tinc­tion between two dif­fer­ent uses of the word ​‘sex­u­al’. On one con­struc­tion, it was sub­mit­ted that ​‘sex­u­al’ could mean that ​‘which tran­spires between per­sons (or oth­er crea­tures) of a dif­fer­ent bio­log­i­cal sex’. The rela­tion­ship between Mr Dar­cy and Ms Ben­net in Jane Austin’s Pride and Prej­u­dice could be con­sid­ered ​‘sex­u­al’ in this way. On an alter­na­tive con­struc­tion, ​‘sex­u­al’ could mean that which was done for the pur­pose of sex­u­al grat­i­fi­ca­tion. This behav­iour could occur between per­sons regard­less of their gender. 

In reject­ing this con­struc­tion, the Fed­er­al Court upheld in deci­sion in first instance that the over­all pur­suit of Ms Hill by Mr Hugh­es was sex­u­al in nature. The Court con­clud­ed that Mr Hugh­es’ actions were far removed from those of Mr Dar­cy, and any sug­ges­tion that Mr Hugh­es only wished to be Ms Hill’s ​‘pla­ton­ic lover’ was emphat­i­cal­ly rejected. 

Gen­er­al damages 

In his appeal, Mr Hugh­es argued that the tri­al judge’s award of $120,000 to Ms Hill was man­i­fest­ly excessive. 

In assess­ing this issue, the Court not­ed that Ms Hill had pro­vid­ed at tri­al evi­dence by way of expert med­ical tes­ti­mo­ny about the effect Mr Hugh­es’ actions had on her. Mr Hugh­es called no evi­dence on this issue and he did not ques­tion the tri­al judge’s accep­tance of these mat­ters on appeal. 

Giv­en the impact of Mr Hugh­es’ behav­iour on Ms Hill, includ­ing occa­sion­ing con­sid­er­able stress, anx­i­ety and unhap­pi­ness, Jus­tice Per­ram observed (at [47]):

“What is the ruin of a person’s qual­i­ty of life worth? I flat­ly reject the Appellant’s [Mr Hugh­es] con­tention that it was not worth $120,000 and the allied sub­mis­sion that such a find­ing was not open on the evi­dence. It seems to me to have been entire­ly with­in the range of avail­able awards for gen­er­al dam­ages in a case of this seri­ous­ness where actu­al psy­cho­log­i­cal harm was occa­sioned to the Respon­dent [Ms Hill] by the Appellant’s repeat­ed and self-indul­gent actions. The Court’s deci­sion in Ora­cle [Richard­son v Ora­cle Cor­po­ra­tion Aus­tralia Pty Ltd [2014] FCAFC 82] involved an award of $100,000 and there are many awards in this range: Ver­gara v Ewin [2014] FCAFC 100; 223 FCR 151; Collins v Smith (Human Rights) [2015] VCAT 1992; 256 IR 52; Hunt­ley v State of NSW Depart­ment of Police & Jus­tice (Cor­rec­tive Ser­vices NSW) [2015] FCCA 1827; 251 IR 136. I reject the Appellant’s sub­mis­sion that his con­duct was ​‘sig­nif­i­cant­ly less egre­gious than the con­duct com­plained of in Ora­cle.”

The Court ulti­mate­ly upheld the deci­sion to award Ms Hill an amount of $120,000 in gen­er­al dam­ages. In doing so, Jus­tice Per­ram con­firmed that the deci­sion in Richard­son v Ora­cle Cor­po­ra­tion Aus­tralia Pty Ltd [2014] FCAFC 82 effect­ed ​“a sub­stan­tial increase in the gen­er­al dam­ages which could be award in a case of sex­u­al harassment”. 

Aggra­vat­ed damages

At first instance, the tri­al judge had award­ed Ms Hill $50,000 in aggra­vat­ed dam­ages. This was due to threats Mr Hugh­es had made to her regard­ing mak­ing a com­plaint against him, and the man­ner in which he con­duct­ed him­self dur­ing the trial. 

On appeal, Mr Hugh­es direct­ly chal­lenged the author­i­ty of the Court to award Ms Hill the aggra­vat­ed dam­ages on two grounds: 

In reject­ing Mr Hugh­es’ first argu­ment, Jus­tice Per­ram con­clud­ed that it was dis­hon­ourable for Mr Hugh­es’ to have attempt­ed to deter Ms Hill from seek­ing pro­tect­ing from sex­u­al harass­ment through mak­ing a com­plaint. Fur­ther­more, Mr Hugh­es’ con­duct dur­ing the tri­al at first instance was con­sid­ered rep­re­hen­si­ble at a minimum. 

Jus­tice Per­ram also reject­ed Mr Hugh­es’ sec­ond con­tention, stat­ing (at [63]):

“The ques­tion is whether there should be addi­tion­al com­pen­sa­tion to the Respon­dent [Ms Hill] for her injured feel­ings because her sense of injury result­ing from the sex­u­al harass­ment has been height­ened by the man­ner in which the Appel­lant [Mr Hugh­es] sought to dis­suade her from com­plain­ing and the man­ner in which he con­duct­ed his defence: Wot­ton v Queens­land (No 5) [2016] FCA 1457; 352 ALR 146 at [1731]-[1735]. The tri­al judge was cor­rect to con­clude that an award of aggra­vat­ed dam­ages was appro­pri­ate. To have suf­fered the Appellant’s sex­u­al harass­ment in the first instance was psy­cho­log­i­cal­ly dam­ag­ing to the Respon­dent. To deal there­after with his men­ac­ing behav­iour, as her employ­er, must have been a ter­ri­ble expe­ri­ence for a woman in her posi­tion. To have suf­fered the final indig­ni­ty of watch­ing the Appel­lant divulge her con­fi­den­tial infor­ma­tion in his own defence, in gross dere­lic­tion of his pro­fes­sion­al duty, can only have made her realise that she was in the ring with a dis­turbed, self-cen­tred and ven­omous man. He had threat­ened that he knew how to ​‘fight the good fight’ and he car­ried that threat out even to the extent of con­duct which must sure­ly soon end, if it has not already end­ed, his career as a lawyer.”

As a result, the tri­al judge’s deci­sion to award Ms Hill $50,000 in aggra­vat­ed dam­ages was upheld. 

Con­clu­sion

This case has gar­nered much atten­tion due to the egre­gious con­duct involved and the nov­el (par­don the pun) but ulti­mate­ly unsuc­cess­ful ​“Mr Dar­cy” submission. 

Unlike some oth­er cas­es how­ev­er that draw con­sid­er­able atten­tion due to the nature of the facts, this case is instruc­tive legally. 

First, Jus­tice Per­ram pro­vides a neat, use­ful dis­til­la­tion of the ele­ments of the def­i­n­i­tion of ​“sex­u­al harass­ment” in the SD Act.

Sec­ond­ly, the case con­firms the par­a­digm shift in cal­cu­la­tion of gen­er­al dam­ages in sex­u­al harass­ment mat­ters estab­lished in the Ora­cle case. 

Third­ly, the case sets out a use­ful illus­tra­tion of the type of con­duct that will lead to an award of aggra­vat­ed dam­ages and the quan­tum of such damages. 

While the Mr Dar­cy ref­er­ences hark back to a bygone era, the prin­ci­ples can­vassed in the case will like­ly be cit­ed well into the future.