Golding v Sippel and The Laundry Chute Pty Ltd
[2021] ICQ 14
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- Golding v Sippel and The Laundry Chute Pty Ltd[2021] ICQ 14
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Golding v Sippel and The Laundry Chute Pty Ltd[2021] ICQ 14
Golding v Sippel and The Laundry Chute Pty Ltd[2021] ICQ 14
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Golding v Sippel and The Laundry Chute Pty Ltd [2021] ICQ 14 |
PARTIES: | PERLITA GOLDING (appellant) v IAN SIPPEL (first respondent) THE LAUNDRY CHUTE PTY LTD (second respondent) |
FILE NO/S: | C/2021/5 |
PROCEEDING: | Appeal |
DELIVERED ON: | 6 August 2021 |
HEARING DATE: | 14 May 2021 |
MEMBER: | Davis J, President |
ORDERS: |
|
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – OFFENCES – PENALTIES AND ORDERS – COSTS – DAMAGES – where the Appellant (‘Ms Golding’) was employed by the Second Respondent (‘The Laundry Chute’) for a period of 14 months – where The Laundry Chute was controlled by the First Respondent (‘Mr Sippel’) – where Mr Sippel sexually harassed and discriminated against Ms Golding during her employment at The Laundry Chute – where Ms Golding suffered psychological injuries resulting from the sexual harassment and discrimination to which she was subjected – where Ms Golding commenced compensation proceedings in the Queensland Industrial Relations Commission (‘the QIRC’) against Mr Sippel for contravention of the Anti-Discrimination Act 1991 – where Ms Golding was awarded compensation by the QIRC – where Ms Golding sought costs in a fixed sum – where Ms Golding appealed the costs order and the quantum of compensation awarded to her by the QIRC – whether the award for economic loss and damage suffered by Ms Golding was manifestly inadequate – whether a fixed sum for costs should have been awarded Anti-Discrimination Act 1991 (Qld), s 10, s 119, s 133, s 209 McGregor on Damages 19th Edition, Sweet & Maxwell, Thompson Reuters, cited Golding v Sippel and The Laundry Chute Pty Ltd [2021] QIRC 74, related |
COUNSEL: | JE Murdoch QC with T O'Brien for the appellant The respondent, Mr Sippel, appeared on his own behalf No appearance for The Laundry Chute Pty Ltd |
SOLICITORS: | Shine Lawyers for the appellant The respondent, Mr Sippel, appeared on his own behalf No appearance for The Laundry Chute Pty Ltd |
- [1]This is an appeal from proceedings brought for compensation for contravention of the Anti-Discrimination Act 1991 (ADA). On 9 March 2021, by decision in the Queensland Industrial Relations Commission (the QIRC), it was found that the first respondent, Ian Sippel, had sexually harassed and sexually discriminated against the appellant, Perlita Golding, an employee of Mr Sippel’s company, The Laundry Chute Pty Ltd (The Laundry Chute). Having found that the harassment and discrimination had occurred, the QIRC then assessed compensation[1] and made orders against both Mr Sippel and The Laundry Chute.[2] In addition to an award of compensation, Ms Golding obtained an order that Mr Sippel and The Laundry Chute pay her costs assessed on the Magistrates Court scale.
- [2]Ms Golding appeals against the quantum of compensation and she also appeals against the costs order. She submits that the costs ought to have been fixed at $60,000.
Background
- [3]Ms Golding was born on 30 May 1981 in the Philippines. She was married to a Filipino man and together they had four children. In 2010, the family came to Australia, but shortly after their arrival Ms Golding’s husband became abusive and the marriage broke down.
- [4]Ms Golding has custody and care of the children and receives no financial support from their father.
- [5]Ms Golding was employed by The Laundry Chute from June 2017 to August 2018,[3] a period of about 14 months.
- [6]Soon after Ms Golding commenced her employment, Mr Sippel began sexually harassing and discriminating against her.[4] This culminated in an exchange of text messages between 3 and 9 August 2018 some of which caused Ms Golding to fear for her safety and report Mr Sippel’s behaviour to the police. She did not return to the workplace after making the police complaint. She is suffering psychological injuries and has been receiving workers’ compensation payments.
- [7]There were many factual contests between Ms Golding and Mr Sippel. In some respects, Mr Sippel denied Ms Golding’s allegations and in others he accepted his conduct but sought to trivialise it as light hearted and just “banter”.
- [8]In a careful judgment, the Industrial Commissioner made detailed findings in relation to all of the conduct alleged by Ms Golding. Mr Sippel, in directions hearings leading to the hearing of Ms Golding’s appeal, foreshadowed an appeal by him against the Industrial Commissioner’s findings. However, no cross-appeal by Mr Sippel or The Laundry Chute materialised.
- [9]The Industrial Commissioner found some of Ms Golding’s complaints proved but rejected others. What follows is a summary of the specific conduct found by the Industrial Commissioner.
- [10]The laundry business was located near a school attended by Ms Golding’s children. She met Mr Sippel and asked him for work. Ms Golding, as earlier observed, commenced work with The Laundry Chute in June 2017.
- [11]On numerous occasions, Mr Sippel touched Ms Golding on the bottom. She would protest and he would laugh off the protests.[5]
- [12]Mr Sippel suffers from a bad back. Ms Golding offered to massage his back for a fee of $50.00. Mr Sippel responded by offering her $500 in exchange for sexual intercourse. That conversation occurred in late 2017.[6]
- [13]In March 2018, Ms Golding asked Mr Sippel if she could borrow his lawnmower as hers wasn’t working. Mr Sippel offered to give her his lawnmower in exchange for sexual intercourse.[7]
- [14]On 30 May 2018, Ms Golding turned 37. On that birthday, Mr Sippel sexually assaulted Ms Golding. He grabbed her groin through her clothes and he pushed her hand down the front of his shorts onto his erect penis. He put his hand down her pants and onto her vagina.[8]
- [15]After the birthday incident, Mr Sippel’s demands became more frequent. He increased Ms Golding’s working hours and regularly propositioned her for sexual intercourse. When she rebuffed him, he would send her home and then withdraw working hours from her.[9] Mr Sippel knew that Ms Golding was in a challenging financial position as she had told him and begged for work.[10]
- [16]
- [17]One particular incident involved Mr Sippel looking at Ms Golding while touching his penis over his pants and pushing his tongue into his cheek so as to make his cheek bulge.[13]
- [18]Mr Sippel again sexually assaulted Ms Golding on or about 17 May 2018. On that occasion, Ms Golding was at The Laundry Chute’s business premises and was changing her clothes. She had a social outing planned. Mr Sippel grabbed and touched the inside of her upper leg while telling her she was “sexy” and announcing his intention that “one day I’m going to fuck you”.[14]
- [19]As already observed, Mr Sippel sent text messages to Ms Golding in the period 3-9 August 2018.
- [20]By this point, a position was available within the business conducted by The Laundry Chute which Ms Golding could fill and which would provide her with more working hours and therefore improve the financial position of her family. She obviously wished to secure the position. Mr Sippel attempted to take advantage of her vulnerability. The text messages were:
“Friday 3 Aug, 10:35 am
Ms Golding: Bossing can I do the work of mommy Charmaine cleaning Saturday
Ms Golding: ?
Friday 3 Aug, 8:27 pm
Mr Sippel: what u want me to do
Saturday 4 Aug, 1:46 am
Ms Golding: She told me someone working to you already
Saturday 4 Aug, 8:54 am
Mr Sippel: And what u want?
Ms Golding: I wanted to work
Ms Golding: But you the one who decide not her
Ms Golding: You’re the owner
Ms Golding: So why you rely with someone
Ms Golding: Of course I followed what you said
Saturday 4 Aug, 1:11 pm
Mr Sippel: I going by what Charmy say She not think u reliable She bring othe lady to work with
Ms Golding: Ok give me a chance
Mr Sippel: Give me ur pussy
Mr Sippel: ?
Saturday 4 Aug, 5:35 pm
Ms Golding: Lol
Ms Golding: Bossing you kidding
Mr Sippel: maybe not
Mr Sippel: Maybe you give me incentive to give u job
Sunday 5 Aug, 8:26 pm
Mr Sippel: So what u want to do
Tuesday 7 Aug, 9:16 pm
Mr Sippel: as I can I have ur pussy and in turn give u job
Wednesday 8 Aug, 7:11 am
Ms Golding: Bossing you already hold my pussy
Ms Golding: I can’t give that again hmmm
Ms Golding: Are Charmaine wants give her self not me
Ms Golding: I holding your penis it’s enough that
Thursday 9 Aug, 10:01 am
Ms Golding: Pls bossing can I work
Mr Sippel: I may have a proper job for u on Tuesday and Thursday 12 30 to 5 30 every week But u have to commit to No fucking around You must turn up I behave myself and leave u alone But u have to be reliable and work I let u know on Sat
Mr Sippel: Does that sound fair?
Ms Golding: Ok
Ms Golding: I trying my best bossing
Ms Golding: Did you if I worked”
- [21]The Industrial Commissioner found that the bottom touching, the massage request, the lawnmower incident, the genital touching, the conduct of demanding sex in exchange for increased working hours, the cheek bulge incident, the grabbing of Ms Golding’s inside upper leg in about 17 May 2018 and the text messages all constituted “sexual harassment” for the purposes of the ADA.[15]
- [22]Findings were made by the Industrial Commissioner that the acts which she found were committed by Mr Sippel were sexually discriminatory. In other words, Mr Sippel treated Ms Golding less favourably in the workplace because she was female.[16]
- [23]Compensation was assessed by the Industrial Commissioner at:
- (a)economic loss $15,960.75
- (b)general damages $30,000.00
- (c)aggravated damages $5,000.00
- (a)
- [24]Ms Golding sought an order for costs of the proceedings in the QIRC to be fixed at $60,000. That was refused. The order made as to costs was:
“5. That the Respondents are to bear the Complainant’s costs, to be agreed or assessed at the Magistrates Court scale. That is to occur either within 28 days after agreement, or 28 days after assessment.”
The grounds of appeal
- [25]The grounds of appeal are:
“The Commission erred in law and or alternatively exceeded its jurisdiction in the following respects:
- 1.In assessing the Appellant’s economic loss the Commission has erred in determining that the Appellant was not entitled to compensation for economic loss up to and including the date of judgement.
- 2.In assessing general damages the Commission has acted on a wrong principle of law, or alternatively misapplying a principle of law.
- 3The award of general damages in the amount of $30,000 is manifestly inadequate.
- 4.In assessing aggravated damages the Commission has erred by acting on a wrong principle of law, or alternatively misapplying a principle of law.
- 5.The award of aggravated damages in the amount of $5,000 is manifestly inadequate.
- 6.In assessing legal costs to be paid by the Respondents, the Commission has erred by acting on a wrong principle of law, or alternatively misapplying a principle of law, and or alternatively by failing to provide natural justice to the Appellant.
- 7.The award of costs on the Magistrates Court scale is manifestly inadequate.”
- [26]On an appeal from the QIRC to this Court, grounds which can be raised as of right are those limited to an “error of law” or “excess or want of jurisdiction”.[17] Other grounds may be raised by leave[18] but Ms Golding does not seek to raise any such grounds. As already observed, there is no cross-appeal by Mr Sippel or The Laundry Chute. Therefore, no party attacks any finding of fact made in the QIRC.
- [27]Orders sought by Ms Golding on the appeal are:
- “1.That Orders 4(a), 4(b) and 4(c) of Decision in Matter Number AD/2019/82[19] be set aside.
- 2.That Order 5 of Decision in Matter Number AD/2019/82[20] be set aside.
- 3.Orders that the Respondents pay to the Appellant within 28 days:
- (a)$35,980.10 for economic loss, which must be subject to appropriate taxation;
- (b)$120,000 for general damages; and
- (c)$50,000 for aggravated damages.
- 4.Order that the Respondents pay legal costs of the Appellant fixed at $60,000.”
Ground 1
- [28]Ground 1 concerns the award made by the Industrial Commissioner for economic loss.
- [29]The Industrial Commissioner heard and accepted evidence that The Laundry Chute business closed in September 2019.[21] The Industrial Commissioner also found that Ms Golding was a casual employee. The Industrial Commissioner described such employment as “a precarious form of employment”[22] and noted that casual employment is heavily dependent upon variable economic factors. I respectfully observe that the Industrial Commissioner was clearly right about all of that.
- [30]Based on those findings, the Industrial Commissioner limited economic loss to a period of one year from the time Ms Golding ceased working for The Laundry Chute being from 5 August 2018 to 5 August 2019. In so doing, the Industrial Commissioner was doing her best to estimate the period over which Ms Golding would, but for the discrimination and harassment, have worked for The Laundry Chute.
- [31]Having identified the relevant period as 5 August 2018 to 5 August 2019, the Industrial Commissioner then calculated the loss of wages. Ms Golding was employed under the provisions of the Dry Cleaning and Industry Award 2010. That award changed on 20 June 2019. Taking that into account, the Industrial Commissioner calculated the economic loss in these terms:
| From 5 august 2018 to 19 June 2019 | $11,226.60 |
| From the date of the increase of wages under the award, 20 June 2019 to 5 August 2019 | $1,542.00 |
| Sub-total: | $12,768.60 |
| Casual employee loading of 25% in accordance with the award | $3,192.15 |
| Total: | $15,960.75 |
- [32]The evidence which the Industrial Commissioner accepted was that, as a result of the injury suffered at the hands of Mr Sippel, Ms Golding had not been able to return to work by the date of the hearing in the QIRC.[23] The QIRC hearing was conducted on 12 and 13 October 2020.
- [33]In my view, the Industrial Commissioner has erred in law by confining her consideration as to economic loss to a period during which The Laundry Chute may have employed Ms Golding, but for Mr Sippel’s behaviour. The function of the QIRC was to assess compensation “for loss or damage caused by the contravention [of the Anti-Discrimination Act 1991]”.[24] The contravention made Ms Golding unfit for work up to the time of the hearing and therefore, she should be compensated for that loss irrespective of the fact that The Laundry Chute may not have continued her employment even if the offending conduct had not occurred.
- [34]However, from September 2019 at the latest, Ms Golding would not have been employed by The Laundry Chute. Therefore, any calculation of economic loss from there until the hearing in the QIRC must allow for the contingency that Ms Golding may not have been employed elsewhere to the extent that she was at The Laundry Chute.
- [35]Ms Golding claims loss up until the date of judgment. There is no evidence as to her employment status between the date of the hearing in the QIRC and the date of judgment.
- [36]The appropriate approach is to calculate Ms Golding’s loss over the full period from 5 August 2018 to 13 October 2020 using the formula adopted by the Industrial Commissioner but to discount the calculated loss for the whole period by 20 per cent to make allowances for contingencies. That discount should, in my view, be applied to the entire period, including that between August 2018 and September 2019. There was no guarantee of Ms Golding’s employment with The LaundryChute and no guarantee that (putting aside Mr Sippel’s conduct) the business would continue to require her to work the hours she had been working.
- [37]For the period 5 August 2018 to 19 June 2019, the Industrial Commissioner found a loss of $11,226.60. Subject to the application of a discount for contingencies, there is no reason to interfere with that finding. In the period 20 June 2019 to 13 October 2020, loss should be calculated on the formula identified by the Industrial Commissioner, namely two four hour shifts per week in normal time at $19.77 per hour and one four hour shift on a Saturday at $24.71 per hour. That is a weekly gross of $257.00. Over the 68 week period between 20 June 2019 and 13 October 2020, that calculates to $17,476.00. Adding $11,226.60 to $17,476.00 gives $28,702.60. Making a 20 per cent reduction for contingencies over that whole period of $5,740.52, gives $22,962.08. Adding the casual loading of 25 per cent of $5,740.52 results in a total of $28,702.60. As a matter of mathematics, reducing a starting figure by 20 per cent, but then increasing the resulting sum by 25 per cent, will restore the starting figure.
- [38]It is appropriate to set aside the award of the QIRC for economic loss and in place award $28,702.60.
Grounds 2, 3, 4 and 5
- [39]It is appropriate to deal with grounds 2 and 3, which concern general damages, and grounds 4 and 5, which concern aggravated damages, together.
- [40]The QIRC awarded $30,000 for general damages and $5,000 for aggravated damages. The Industrial Commissioner appreciated that the ADA authorised the award of “compensation”.[25] She directed herself to statements in Wotton v State of Queensland (No 5)[26] and Hall v A&A Sheiban Pty Ltd[27] to the effect that “aggravated damages”, a common law concept, are damages which are compensatory in nature.
- [41]The Industrial Commissioner then directed herself to a specific passage in Wotton v State of Queensland (No 5):
- “[294] In Wotton v State of Queensland (No 5), 118 the principles applying to aggravated damages were considered (emphasis added):
‘Aggravated damages were described by Lord Diplock in Cassell & Co Ltd v Broome [1972] AC 1027 at 1124 (citing with approval the description given by Lord Devlin in Rookes v Barnard [1964] AC 1129) as ‘[a]dditional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or the motive for which the defendant did it.’ That formulation was applied with approval by Clarke JA in the New South Wales Court of Appeal in Spautz v Butterworth [1996] NSWSC 614; 41 NSWLR 1 at 15-18, although it should be noted that the High Court has acknowledged criticism of Rookes v Barnard on other issues, notably that case’s approach to exemplary damages: see Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1 at [18]-[19] (Gleeson CJ, McHugh, Gummow and Hayne JJ) and the authorities there cited, especially Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118.
Another description of the function of aggravated damages was given by Windeyer J in Uren at 149, where his Honour said that aggravated damages ‘compensate the plaintiff where the harm done to him by a wrongful act was aggravated by the manner in which the act was done’. This passage was cited with apparent approval in Gray v Motor Accident Commission at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ). The plurality opinion in Gray emphasises that exemplary damages are punitive, by finding that once a person has been convicted and sentenced for conduct she or he has been punished and exemplary damages for substantially the same conduct are not available: at [40]. The character of the conduct necessary for an award of aggravated damages was described by the High Court in Triggell v Pheeney [1951] HCA 23; 82 CLR 497 at 514 as lacking bona fides, or being improper or unjustifiable.
In some cases, the aggravation comes not from conduct directly associated with or following on from the contravening conduct, but from subsequent conduct that has the same effect. In Elliott v Nanda [2001] FCA 418; 111 FCR 240 at [179]-[185], Moore J set out the kinds of additional circumstances which might justify such an award. All concerned the manner in which a respondent or defendant conducted proceedings brought against her, him or it. An example is Houda v New South Wales [2005] NSWSC 1053, in which aggravated damages of $20,000 were awarded for the way the defendant conducted its defence of the proceedings against the plaintiff.
Neither party referred the Court to any anti-discrimination cases (whether under s 46PO(4) of the AHRC Act or otherwise) in which aggravated damages had been awarded for acts of unlawful discrimination, although clearly Elliott v Nanda is such a case. In Hall v Sheiban Lockhart J (at 239-40) and French J (at 282) were prepared to assume, without deciding, that aggravated damages may be available under s 81(1)(b)(iv) of the Sex Discrimination Act.
In McIntyre v Tully (1999) 90 IR 9, an age discrimination case, Atkinson J upheld an award of aggravated damages for the way the complainant was cross-examined, saying at [25]-[26]: It has been recognised that in those category of cases where damages are awarded for hurt and humiliation, aggravated damages may be awarded because of the defendant’s conduct of the case. Aggravated damages are compensatory in nature being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like (Lamb v Cotogno (1987) 164 CLR 1 at 8; Mafo v Adams [1970] 1 QB 548 at 558). Such injury may be exacerbated by the defendant’s conduct of the case. In John v MGN Ltd [1997] QB 586 at 608, Bingham MR held that the fact that the plaintiff had been cross-examined in a wounding and insulting way could be taken into account in the assessment of damages. In false imprisonment cases, damages for an initial false imprisonment may be aggravated by persistence with the assertion of facts alleged to justify the imprisonment up to the moment when damages are assessed which continue the slur on the plaintiff’s reputation … .
There is no reason in principle why this head of damages should not be awarded in appropriate cases for unlawful discrimination when damages are awarded for distress, loss of dignity and injury to feelings … .
…
The weight of authority therefore favours the view that aggravated damages may be awarded under s 46PO(4).”[28] (emphasis added by the Industrial Commissioner)
- [42]Ultimately the Industrial Commissioner’s approach to the question of aggravated damages was explained as follows:
- “[295] In my view, bearing in mind that the purpose of s 209(1)(b) is compensatory and in virtually identical terms to s 46PO(4),[29] I am minded to adopt a similar approach. I am wary, however, of awarding aggravated damages with respect to how a party responds to a case. The purpose of damages is to compensate for loss, not to punish. That is particularly relevant in circumstances where a Respondent is self-represented.”[30]
- [43]“Aggravated damages”, as the Industrial Commissioner appreciated, is a tag given to an award of damages to address circumstances which may be seen to increase the appropriate compensation given particular factors. Those factors are compensatory and may be taken into account in calculating statutory compensation under the ADA and like statutes.[31]
- [44]A separate award may be made for aggravated damages but what is necessary is to calculate a figure for “compensation” for the conduct which contravened the ADA. For reasons which will follow, I intend to set aside the award for general damages made in the QIRC and substitute a higher award. That will reflect consideration of aggravating factors so it is appropriate to also set aside the Industrial Commissioner’s award on aggravated damages.
- [45]In Ms Golding’s written submissions, there is reference to “exemplary damages”. Again, this is a common law concept. The authors of McGregor on Damages[32] describe “exemplary damages” in these terms:
“The primary object of an award of damages is to compensate the claimant for the harm done to him; a possible secondary object is to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which are variously called exemplary damages, punitive damages, vindictive damages or even retributory damages, and comes into play when-ever the defendant’s conduct is sufficiently outrageous to merit punishment. …”
- [46]Exemplary damages are not compensatory and have no place within the statutory regime for compensation established by the ADA.
- [47]The Industrial Commissioner had in evidence a report of a psychiatrist, Dr Relan. Dr Relan also gave evidence before the QIRC. The Industrial Commissioner accepted Dr Relan’s evidence that Ms Golding suffers from an Adjustment Disorder with Mixed Anxiety and Depressed Mood which is attributable to Mr Sippel’s conduct even though Ms Golding had previous underlying depression.[33] The Industrial Commissioner also accepted Ms Golding’s account of her symptoms:
- “[269] Ms Golding’s account of her symptoms is contained primarily in pages 5, 6, 11 and 12 of Dr Relan’s report. Ms Golding reported that she began experiencing anxiety early in 2018, following the sexual conduct in the workplace. She explained that she would be on guard at work, and watch out for Mr Sippel’s movements, so as to not be too close to him. She felt unsettled and easily agitated. She also became short-tempered, particularly at home. She would also become tearful, remain continually distressed, scared and worried about the effect of the sexual advances on her ability to continue working. She reported dreading losing her job. Over time, she reported experiencing negative and anxious thoughts, including feeling useless and suffering detriments to her self-esteem and confidence. She felt frustrated and angry at Mr Sippel, and would get easily overwhelmed. Her sleep became erratic, and she reported ruminating during the night. In October 2018, upon attending a psychologist, Ms Golding commenced a course of antidepressant medication, after experiencing dysphoric and unsettled moods.”
- [48]The Industrial Commissioner took into account “non-medical intangible issues’ such as humiliation and feeling cheapened.[34] Then, after referring to various cases where awards for similar conduct had been made, the Industrial Commissioner said this:
- “[289] In my view, Ms Golding’s losses arising from her medical condition are not of the highest levels of severity. Her personal resilience seems to have aided her in avoiding or resisting many of the harsher effects which may arise from such conduct. She has continued to engage in courses of study, sought to socialise with friends, engaged with her children, and the like.
- “[290] Nevertheless, the conduct was over an extended period of time and resulted in a diagnosed medical. injury which caused Ms Golding’s quality of life to suffer appreciably. In my view, her intangible losses fall with in the moderate range. The intangible losses suffered by Ms Golding, significant as they were, do not in my view lie within the categories of cases where the most significant non-financial losses have occurred. The medical evidence explains that the psychological impact of the contraventions at the time of the report included mild symptoms, and a cautiously optimistic prognosis of continued recovery.” (emphasis added)
- [49]Ms Golding submits that the statement at [289] of the primary judgment shows error. It is submitted that the Industrial Commissioner concentrated too much on the direct medical consequences of the behaviour rather than the overall damage. That submission is weakened significantly however, by the observations at paragraph [290] of the primary judgment.
- [50]The assessment of damages, or as here, statutory compensation is a matter of judgment of a species of discretion considered in Norbis v Norbis.[35] To set aside such an assessment, error must be identified[36] and a House v The King[37] error must be found. Where no specific error can be discerned, manifest excessiveness or manifest inadequacy of an award of damages will identify appealable error.[38]
- [51]Here, it is unnecessary to determine whether there is legal error in the Industrial Commissioner’s reasoning. The award of damages is, in my view, manifestly inadequate.
- [52]Mr Sippel’s conduct was extremely serious. Over a period of 14 months, he tormented Ms Golding, a woman who had little choice but to work for The Laundry Chute and put up with him because of her financial position. It was that reason why she tolerated his lewd and disgusting behaviour. On every day she appeared for work, she knew the prospect was that she would be humiliated and demeaned sexually by him. That ultimately resulted in a diagnosed anxiety disorder causing her to be unable to work.
- [53]I have taken into account all the factual findings by the Industrial Commissioner and I have taken into account, in assessing the appropriate statutory compensation, all those factors which might be categorised within “aggravated damages”. I have also found some of the awards in other cases of assistance.[39] I set aside the awards made in the QIRC for general damages and aggravated damages and substitute an award of $130,000.
Ground 5
- [54]The Industrial Commissioner correctly observed that the default position in relation to costs is that each party are to bear their own. She also identified the discretion to make an award of costs where the interests of justice required it. The Industrial Commissioner then exercised that discretion in favour of Ms Golding[40] and there is no challenge by Mr Sippel to that exercise of discretion.
- [55]Ground 5 though concerns the quantification of the costs. Rule 70 of the Industrial Relations (Tribunal) Rules 2011 provides as follows:
“70 Costs
- (1)This rule applies if the court or commission makes an order for costs under section 545 of the Act.
- (2)The court or commission, in making the order, may have regard to—
- (a)for a proceeding before the commission—the costs payable on the scale of costs for Magistrates Courts under the Uniform Civil Procedure Rules 1999, schedule 3; or
- (b)for a proceeding before the full bench—the costs payable on the scale of costs for the District Court under the Uniform Civil Procedure Rules 1999, schedule 2; or
- (c)for a proceeding before the court—the costs payable on the scale of costs for the Supreme Court under the Uniform Civil Procedure Rules 1999, schedule 1; or
- (d)any other relevant factor.
- (3)The court may order that costs be assessed by the registrar and, in assessing costs, the registrar may have regard to the Uniform Civil Procedure Rules 1999, chapter 17A.”
- [56]Despite requesting the Industrial Commissioner to assess a fixed amount for costs, Ms Golding did not produce any evidence quantifying her costs. Hardly surprisingly, the Industrial Commissioner concluded this:
- “[308] The Complainant has not provided any evidence of their costs incurred, or what their costs would be against the Magistrates or District Court scales, beyond seeking costs fixed in the amount of $60,000. That is unfortunate, because it does not allow me to easily fix an award of costs, which is espoused to be the preferred process under Sch 2, at s 9.1”
- [57]The issue of costs was dealt with after hearing the parties. Ms Golding produced no evidence in support of a fixed costs order. She has not suffered procedural unfairness.
- [58]In the absence of any evidence before the QIRC to support any costs order beyond that identified by r 70, no error of law is established in the Industrial Commissioner making the order as to costs which she did.
Conclusions and orders
- [59]Reflecting the reasons which appear above, I order the following:
- 1.The appeal is allowed to the extent of:
- (a)setting aside the award of $15,960.75 for economic loss;
- (b)substituting as the award for economic loss the sum of $28,702.60;
- (c)setting aside the award of $30,000 for general damages;
- (d)setting aside the award of $5,000 for aggravated damages;
- (e)substituting for the award of general damages and aggravated damages the sum of $130,000.
- 2.The appeal is otherwise dismissed.
- 3.I will hear the parties on the question of costs of the appeal.
Footnotes
[1] Anti-Discrimination Act 1991 (Qld), s 209(1)(b).
[2] Section 133 of the Anti-Discrimination Act 1991 provides for the vicarious liability of the employer.
[3] Golding v Sippel and The Laundry Chute Pty Ltd [2021] QIRC 74 at [78]-[79] and [150]-[151].
[4] Primary judgment at [93].
[5] Primary judgment, paragraph [86].
[6] Primary judgment, paragraphs [94]-[98].
[7] Primary judgment, paragraphs [102] and [107].
[8] Primary judgment, paragraphs [108] and [115].
[9] Primary judgment, paragraphs [116]-[118].
[10] Primary judgment, paragraph [117].
[11] Primary judgment, paragraph [125].
[12] Primary judgment, paragraph [123].
[13] Primary judgment, paragraph [122].
[14] Primary judgment, paragraphs [128] and [133].
[15] Section 119.
[16] Anti-Discrimination Act 1991, s 10(1).
[17] Industrial Relations Act 2016, s 557(1).
[18] Section 557(2).
[19] The sums awarded for general damages, aggravated damages and economic loss.
[20] The costs order.
[21] Primary judgment, paragraph [234].
[22] Primary judgment, paragraph [235].
[23] Primary judgment, paragraphs [275] and [278].
[24] Anti-Discrimination Act 1991, s 209(1)(b).
[25] Primary judgment, paragraph [295].
[26] (2016) 157 ALD 14.
[27] (1989) 20 FCR 217.
[28] Primary judgment, paragraph [294].
[29] A reference to the Australian Human Rights Commission Act 1986 (Cth).
[30] Primary judgment, paragraph [295].
[31] Richardson v Oracle Corporation Australia Pty Ltd (2014) 223 FCR 334 and Hall v A&A Sheiban Pty Ltd (1989) 20 FCR 217.
[32] 19th Edition, Sweet & Maxwell, Thompson Reuters.
[33] Primary judgment, paragraphs [271] and [273].
[34] Primary judgment, paragraph [275].
[35] (1986) 161 CLR 513.
[36] Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327.
[37] (1936) 55 CLR 499.
[38] Richardson v Oracle Corporation Australia Pty Ltd (2014) 223 FCR 334 at [76].
[39] Including Hughes (t/as Beesley and Hughes Lawyers) v Hill (2020) 382 ALR 231 and Richardson v Oracle Corporation Australia Pty Ltd (2014) 223 FCR 334
[40] Primary judgment, paragraphs [305]-[307].