Neil v Lee[2024] QIRC 93

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

Introduction

1. [1]
   Ms Debra Neil suffers from fibromyalgia and is in receipt of a Disability Support Pension.^[1]

2. [2]
   In about March 2021, Ms Neil, who resides in Victoria, needed to find alternative accommodation. Ms Neil subsequently placed a post on Facebook stating that she was seeking accommodation and listed her experience in operating AirBnBs.  Soon after, Ms Neil was contacted by Mr John Lee who stated that he had a place in the Whitsundays, that he was looking for a caretaker, that Ms Neil could stay free of charge as a caretaker, in a fully furnished house and that there may be another opportunity for her to obtain some paid work.

3. [3]
   Ms Neil subsequently contacted Mr Lee by telephone. Mr Lee advised Ms Neil that she would get free accommodation if she ran, as an AirBnB, a property he owned. Subsequently, Ms Neil began to make arrangements for her move to Queensland to work for Mr Lee.

4. [4]
   From on or about 9 May 2021, Ms Neil started to receive text messages from Mr Lee, some of which were clearly of a sexual nature. Ms Neil continued to receive text messages from Mr Lee until 17 May 2021 when she decided, because of the nature of the text messages she was receiving from Mr Lee, that she would not work for Mr Lee. Mr Lee subsequently sent other text messages to Ms Neil.

5. [5]
   Upon being given a grant of legal representation by Legal Aid Queensland ('LAQ'), Ms Neil made a complaint to the Queensland Human Rights Commission ('the Complaint') alleging Mr Lee's alleged conduct contravened the Anti-Discrimination Act 1991 ('the AD Act'). A conciliation conference was listed before the Queensland Human Rights Commission on 22 July 2022. Ms Neil attended that conference. There was no attendance by Mr Lee.^[2]

6. [6]
   On 21 October 2022, pursuant to s 166(1)(a) of the AD Act, the Complaint was referred by the Queensland Human Rights Commission to the Queensland Industrial Relations Commission ('the Complaint referral').^[3] According to the Complaint referral, the Queensland Human Rights Commission sent the Complaint referral to Mr Lee's address as contained in the Complaint referral, being an address in Bloomsbury ('the Bloomsbury address').

7. [7]
   The Complaint was allocated to Industrial Commissioner Power for conciliation. By Directions Order dated 18 April 2023, ('the 18 April Order'), Industrial Commissioner Power made a fifth Directions Order for the purposes of undertaking the process of conciliation of the Complaint. This included that Mr Lee respond to a statement of facts and contentions that had been filed by Ms Neil about the Complaint ('Ms Neil's contentions'), that the parties undertake disclosure, that the parties file and serve lists of witnesses, that the parties serve witnesses' outlines of evidence and that the parties file and serve outlines of argument. Mr Lee did not comply with the 18 April Order.

8. [8]
   The 18 April Order also ordered that the parties attend a conciliation conference before Industrial Commissioner Power on a date to be fixed. On 14 August 2023, a notice of listing was issued to the parties to attend a conciliation conference before Industrial Commissioner Power on 6 September 2023. Ms Neil appeared. There was no appearance by Mr Lee.

9. [9]
   By application in existing proceedings filed on 29 September 2023, Ms Neil applied for certain final orders to be made in her favour against Mr Lee by reason of his failure to comply with the 18 April Order ('Ms Neil's application'). The decision sought is in the following terms:

Orders that

1. Judgment be entered against the Respondent in favour of the Applicant pursuant to r. 45(3)(c) of the Industrial Relations (Tribunals) Rules 2011 and s. 451 of the Industrial Relations  Act  2016 by reason of the failure of the Respondent to comply with orders of the Queensland Industrial Commission that he:

1. file a response to the Applicant's Statement of Facts and Contentions on 16 May 2023 (Order 1 of 17 April 2023);

2. file a list of documents on 6 June 2023 (Order 2 of 17 April 2023);

3. file a witness list and outlines of evidence on 4 July 2023 (Orders 7 and 8 of 17 April 2023);

4. file an outline of argument on 18 July 2023 (Order 10 of 17 April 2023); and

5. attend a conference before Commissioner Power on 6 September 2023 (Order 11 of 17 April 2023 and listing of 14 August 2023).

2. Pursuant to s 209(1)(b) of the Anti-Discrimination Act 1991 , the Respondent pay to the Applicant within 28 days the amount of:

1. $607.10 for economic loss arising from the Respondent's conduct;
2. $100,000 in general and aggravated damages, or such other amount as the Commission  considers appropriate.

3. Pursuant to s 209(1)(d) of the Anti-Discrimination Act 1991, the Respondent apologise in writing to the Applicant.

10. [10]
    Ms Neil's application was listed for hearing on 9 November 2023. Mr Lee did not appear on that date.

11. [11]
    Having regard to the facts of the present case, the questions for my determination are:

• was Mr Lee served with Ms Neil's contentions and the 18 April Order? and, if so

• has Mr Lee failed to comply with the 18 April Order; and, if so

• does the Commission have power to order the relief sought in Ms Neil's application? and, if so

• should the Commission, in all the relevant circumstances of the present case, order the relief sought in Ms Neil's application?

12. [12]
    For the reasons that follow:

• Mr Lee was served with Ms Neil's contentions and the 18 April Order;

• Mr Lee has failed to comply with the 18 April Order;

• the Commission does have the power to order the relief sought by Ms Neil  in her application; and

• the Commission will order relief of the kind sought by Ms Neil.

Was Mr Lee served with Ms Neil's contentions and the 18 April Order?

The relevant Directions Orders of the Commission

13. [13]
    The phrase 'directions order' is defined by reference to r 41 of the Industrial Relations (Tribunals) Rules 2011 ('the Rules').^[4] Rule 41(1) relevantly provides that the Commission may make an order about the conduct of a hearing on the initiative of the Commission.

14. [14]
    The Commission's file for this matter reveals that:

• by letter dated 24 October 2022, the Complaint referral was sent by the Industrial Registry, by post, to Mr Lee at the Bloomsbury address;

• a number of Directions Orders were then made by Industrial Commissioner Power including an order that Ms Neil file a statement of facts and contentions about the Complaint; and

• on 17 April 2023, Ms Neil filed her contentions.

15. [15]
    The 18 April Order was in the following terms:

1. That the Respondent file in the Industrial Registry and serve on the Complainant their response to the Complainant’s statement of facts and contentions (no more than 10 pages, type-written, line and a half spaced, 12-point font size and with numbered paragraphs), by 4.00pm on Tuesday, 16 May 2023.

2. That the parties supply to each other, but not file in the Industrial Registry, a list of documents in their possession or under their control directly relevant to a matter in issue in the proceeding, by 4.00pm on Tuesday, 06 June 2023.

3. That the Complainant supply to the Respondent, but not file in the Industrial Registry, copies of those documents contained in the list disclosed which the Respondent requests for which the Complainant has no legal claim to privilege, by 4.00pm on Tuesday,  20  June 2023.

4. That the Respondent supply to the Complainant, but not file in the Industrial Registry, copies of those documents contained in the list disclosed which the Complainant requests for which the Respondent has no legal claim to privilege, by 4.00pm on Tuesday, 20  June  2023.

5. That the Complainant file in the Industrial Registry and serve on the Respondent a list of witnesses that the Complainant proposes to call at the hearing by 4.00pm on Tuesday, 27 June 2023.

6. That the Complainant serve on the Respondent but not file in the Industrial Registry, an outline of evidence for each witness that the Complainant intends to call at the hearing by 4.00pm on Tuesday, 27 June 2023.

7. That the Respondent file in the Industrial Registry and serve on the Complainant a list of witnesses that the Respondent proposes to call at the hearing by 4.00pm on Tuesday, 04 July 2023.

8. That the Respondent serve on the Complainant, but not file in the Industrial Registry, an outline of evidence for each witness that the Respondent intends to call at the hearing (no more than 5 pages, type-written, line and a half spaced, 12-point font size and with numbered paragraphs) by 4.00pm on [sic] 4.00pm on Tuesday, 04 July 2023.

9. That the Complainant file in the Industrial Registry and serve on the Respondent an outline of argument by 4.00pm on Tuesday, 11 July 2023.

10. That the Respondent file in the Industrial Registry and serve on the Complainant an outline of argument by 4.00pm on Tuesday, 18 July 2023.

11. That there be a further conciliation conference before Industrial Commissioner Power at the Queensland Industrial Relations Commission, Central Plaza 2, 66 Eagle Street, (Cnr Elizabeth and Creek Streets), Brisbane on a date to be determined. The Industrial Registry is located on Level 21, 66 Eagle Street, (Cnr Elizabeth and Creek Streets) Brisbane.

The Industrial Relations (Tribunals) Rules 2011 that provide for service

16. [16]
    As to the purpose of service, in Commissioner for Fair Trading v TLC Consulting Services Pty Ltd & Ors,^[5] Philippides J stated:

[27] Likewise, in Jin Xin Investment and Trade (Australia) Pty Ltd v Isc Property Pty Ltd, Barrett J in discussing the underlying purpose of service in respect of the rules there under consideration, cited Lord Cranworth LC’s comments in Hope v Hope (1854) DeG M & G 328 at p. 342 [1854] EngR 468, (43 ER 534 at pp. 539-40) that:

“The object of all service of course is only to give notice to the party on whom it is made, so that he may be made aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the Court may feel perfectly confident that service has reached him, everything has been done that is required.”

17. [17]
    Part 2, div 2, sub-div 3 of the Rules relevantly provides:

24  Who is to be served

1. The party by or for whom a document is filed or issued in a proceeding must serve the document on each other party to the proceeding.

2. Subrule (1) does not apply if–

1. the court, commission, or registrar otherwise directs; or

2. the Act or these rules provide otherwise.

25  Time for service

1. Unless these rules otherwise provide, a document required under these rules to be served must be served as soon as practicable, but at least 3 business days, before–

1. the return day stated in the document; or

2. the day on which it is proposed to apply.

2. Despite subrule (1), the court, commission or registrar may direct that a document be served in a shorter time.

26   Service not allowed on certain days

A person can not serve a document on Good Friday or Christmas Day unless the court, commission or registrar otherwise orders.

27   Service after 4 p.m.

If a document is served on a person after 4p.m., the document is taken to have been served on  the next day.

28   Service of documents

1. The following are the ways by which a document may be served on the person to be served–

1. personal service under rule 29;

2. for an industrial organisation–giving the document to the secretary of the industrial organisation;

3. leaving the document with someone who is apparently an adult living at the relevant address;

4. if there is no-one at the relevant address–leaving the document at the relevant address in a position where it is reasonably likely to come to the person’s attention;

5. if the relevant address is within a building or area to which the person serving the document has been denied access–leaving the document at the building or area in a position where it is reasonably likely to come to the person’s attention;

6. posting the document to the relevant address;

Note–

For the meaning of service by post see the Acts Interpretation Act 1954, section 39A.

7. if the person has given–

1. a fax number under these rules–faxing the document to the person; or

2. an email address for service of documents in the proceeding– emailing the document to the person;

8. if a proceeding is brought against the person in relation to a business carried on by the person under a name other than the person’s name–leaving the document at the person’s place of business with a person who appears to have control or management of the business at the place.

2. The charge for service under this rule must be paid by the party required to serve the document.

3. In this rule–

relevant address, of a person to be served, means–

1. the person’s address for service; or

2. for an individual who does not have an address for service–

1. the individual’s last known place of business or residence; or

2. if the proceeding is brought by or against an individual in the name of a partnership–the principal or last known place of business of the partnership; or

3. for a corporation or industrial organisation that does not have an address for service–its head office or its principal or registered office.

29  How personal service is performed

1. To serve a document personally, the person serving it must give the document, or a copy of the document, to the person intended to be served.

2. However, if the person does not accept the document or copy, the party serving it may serve it by putting it down in the person’s presence and telling the person what it is.

3. It is not necessary to show the original of the document to the person served.

30  Service of directions order on party

The registrar may serve a copy of a directions order on the party who applied for the directions order by any of the following means–

1. if the party has given an email address under these rules–emailing the order to the party;

2. if the party has given a fax number under these rules–faxing the order to the party;

3. posting the order to–

1. the party’s address for service; or

2. for a party who is an individual who does not have an address for service–

1. the party’s last known place of business or residence; or

2. if the proceeding is brought by or against the party in the name of a partnership–the principal or last known place of business of the partnership; or

3. for a party that is a corporation or industrial organisation that does not have an address for service–its head office or its principal or registered office;

4. giving the order to the party by an electronic means stated in a practice direction issued under these rules.

31  Service by an officer of the court

A document required under these rules to be served by the registrar may be served by the registrar or an officer of the court.

The evidence of personal service on Mr Lee of Ms Neil's contentions and the 18 April Order

18. [18]
    Exhibit 2 was the affidavit of Mr Jake Potgieter, the owner and operator of Mackay Process Servers. Mr Potgieter's evidence was that:

• on 19 April 2023, he was engaged by LAQ to locate and serve certain documents on Mr Lee, namely:

1. –Ms Neil's contentions; and

1. –the 18 April Order ('the documents');^[6]

• following the receipt of those instructions from LAQ, Mr Potgieter travelled to Mr Lee's address, being the Bloomsbury address, which was a high-set house with a large shed and which included a business named 'My-Way Fruit and Veges', but there was nobody in attendance;^[7]

• Mr Potgieter then, from his own research, located a property owned by Mr Lee in Proserpine ('the Proserpine address') and, on 27 April 2023, attended the Proserpine address but Mr Lee was not present;^[8]

• subsequently, Mr Potgieter was informed Mr Lee owned a property at Goorganga Plains ('the Goorganga Plains address');^[9]

• on 3 May 2023 at about 4.06 pm:

1. –Mr Potgieter attended the Goorganga Plains address;

1. –as he drove to the house on that property, he saw a person on a tractor, he approached that person and asked that person if he was John Lee, to which the person answered 'yes, it depends on why you're asking'; and

1. –Mr Potgieter, from photographs he had been provided, was then able to identify that the person to whom he was speaking was Mr Lee;^[10]

• Mr Potgieter then told Mr Lee that he had some documents to serve on him, Mr Lee then started running from him and went to the other side of the tractor, Mr Potgieter gave chase to Mr Lee around the tractor a number of times, and when Mr Lee stopped, he (Mr Potgieter) placed the documents at Mr Lee's feet and stated 'John Lee, you have been served;'^[11] and

• Mr Lee then replied: 'I have not been served' and climbed back onto his tractor.^[12] 

19. [19]
    Ms Neil's contentions could have been served by Ms Neil on Mr Lee by any one of the means referred to in r 28(1) of the Rules. Ms Neil chose personal service.

20. [20]
    The 18 April Order was made by Industrial Commissioner Power pursuant to r 41. The Commission file reveals that the 18 April Order was sent to Mr Lee by the Industrial Registry. Under the Rules, there was no requirement for Ms Neil to serve the 18 April Order on Mr Lee. However, Ms Neil personally served the 18 April Order on Mr Lee.

21. [21]
    In my view, the evidence of Mr Potgieter supports Ms Neil's submission^[13] that Mr Lee was personally served with Ms Neil's contentions and the 18 April Order. Having regard to r 27 of the Rules and the time of day that Mr Potgieter served the documents on Mr Lee on 3 May 2023, I find that on 4 May 2023, Mr Lee, in accordance with r 29 of the Rules, was personally served by Ms Neil with her contentions and the 18 April Order.

22. [22]
    The Commission file for this matter also shows that:

1. –by Notice of Listing dated 14 August 2023, a conference was listed before Industrial Commissioner Power for 10.00 am on 6 September 2023 ('the Notice of Listing'); and

1. –on 17 August 2023, the Notice of Listing was mailed by the Industrial Registrar, by express post, to the Bloomsbury address, being the address as set out on the Complaint referral, but the envelope was returned to the Industrial Registry, with a stamp affixed to it marked 'Return to Sender' and which was also marked as 'unclaimed'.

23. [23]
    By this material on the Commission's file, I am also satisfied that Mr Lee received the Notice of Listing from the Industrial Registrar.

Has Mr Lee failed to comply with the 18 April Order?

24. [24]
    Ms Willoughby of counsel, instructed by LAQ for Ms Neil,^[14] informs me that Mr Lee has not complied with the 18 April Order and did not attend the conciliation conference before Industrial Commissioner Power on 6 September 2023.^[15]

25. [25]
    There is nothing on the Commission's file for this matter to indicate that Mr Lee has taken any steps to comply with any Directions Order made by the Commission. There is no indication on the file that Mr Lee attended the Conference before Industrial Commissioner Power on 6 September 2023. There is no indication on the file that Mr Lee has made any contact with the Industrial Registry.

26. [26]
    I find that Mr Lee failed to comply with the 18 April Order.

Does the Commission have power to order the relief sought in Ms Neil's application?

27. [27]
    The answer to this question comes from the Rules.

28. [28]
    Rule 5 relevantly provides that the Rules apply to a proceeding before the Commission. Rule 41(1) relevantly confers power on the Commission to make an order, referred to as a directions order, about the conduct of a proceeding.

29. [29]
    Rule 45 provides:

30. [30]
    In Paul Scott v State of Queensland & Ors,^[16] Vice President O'Connor stated in respect of r 45 of the Rules:

8. [8]
   In Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd his Honour President Hall, in dealing with an application to strike out for want of prosecution, cited with approval the reasoning of Thomas JA in Quinlan v Rothwell & Anor as follows:

There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules.

9. [9]
   Whilst Quinlan v Rothwell & Anor related to the application of the Uniform Civil Procedure Rules 1999 in respect of application to dismiss for want of prosecution, in my respectful view, the reasoning of Thomas JA has equal application to the current proceedings.

10. [10]
    In Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd, Wilcox and Gummow JJ in dealing with a similar provision under the Federal Court Rules stated that the discretion conferred by the rule was:

unconfined, except for the condition of noncompliance with a direction ... [b]ut two situations are obvious candidates for the exercise of the power." The first were "cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co‑operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period". The second were cases "whatever the applicant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent.

11. [11]
    Their Honours went on to observe:

Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co-operate, or for some reason, is unable to do so. Such a conclusion would not readily be reached; but where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.^[17]

31. [31]
    Vice President O'Connor also stated that the discretion conferred under r 45 must be exercised judicially.^[18]

32. [32]
    For the reasons given above I find that:

• Mr Lee was served with Ms Neil's contentions and the 18 April Order;

• the Notice of Listing for the conciliation conference before Industrial Commissioner Power, scheduled for 6 September 2023, was posted to Mr Lee by the Industrial Registrar; and

• Mr Lee did not comply with the 18 April Order, including by not attending the conciliation conference before Industrial Commissioner Power scheduled for 6 September 2023.

33. [33]
    There has been no engagement by Mr Lee with the Commission's management of this matter. Mr Lee's non-compliance with the 18 April Order demonstrates to me Mr Lee's unwillingness to co‑operate with the Commission and Ms Neil in having the Complaint ready for trial within an acceptable period. Further, as submitted by Ms Neil, Mr Lee's non-compliance exposes her to significant prejudice in the form of delay.^[19]

34. [34]
    In these circumstances, given Mr Lee's failure to comply with the 18 April Order, my discretion under r 45(3)(c) of the Rules, namely, to make another order dealing with the proceeding that the Commission considers appropriate, is triggered.

Should the Commission, in all the relevant circumstances of the present case, order the relief sought in Ms Neil's application?

35. [35]
    Four issues arise for consideration, namely:

• was Mr Lee served with Ms Neil's application and given notice of the hearing of Ms Neil's application scheduled for 9 November 2023?

• should I determine Ms Neil's application? and, if so

• has Mr Lee contravened the AD Act as alleged by Ms Neil? and, if so

• what relief, if any, should be ordered in favour of Ms Neil? 

Was Mr Lee served with Ms Neil's application and given notice of the hearing of Ms Neil's application on 9 November 2023?

36. [36]
    On 18 September 2023, following on from the conference scheduled by Industrial Commissioner Power on 6 September 2023, at which Mr Lee did not appear, I made the following Further Directions Order ('the 18 September Order'):

1. That the Complainant has leave to file in the Industrial Registry an application in an existing proceeding for an order pursuant to r 45(3) of the Industrial Relations (Tribunals) Rules 2011 (Qld), together with any supporting affidavits, by 4.00pm on Friday, 29 September 2023.

2. That the Complainant take reasonable steps to serve this Order and any material filed pursuant to Order 1 upon the Respondent by Friday, 6 October 2023.

3. That the application in an existing proceeding be heard before Deputy President Merrell at the Queensland Industrial Relations Commission, Central Plaza 2, 66 Eagle Street, (Cnr Elizabeth and Creek Streets), Brisbane at 9.30am on Thursday, 9 November 2023. The Industrial Registry is located on Level 21, 66 Eagle Street, (Cnr Elizabeth and Creek Streets) Brisbane.

37. [37]
    Ms Neil did not file her supporting affidavit until 13 October 2023 ('Ms Neil's affidavit').  On 16 October 2023, after a request by Ms Neil, I extended the time for Ms Neil to serve the relevant material to 20 October 2023 –  namely, the 18 September Order, Ms Neil's application and her supporting affidavit –  on Mr Lee. The time and date of the hearing of Ms Neil's application, listed for 9.30 am on 9 November 2023, did not change.

38. [38]
    The affidavit of Ms Charo Weldon of LAQ, filed by leave on 9 November 2023, satisfies me that on 13 October 2023, a law clerk employed by LAQ, posted, by express post to each of the three of Mr Lee's known addresses, being the Bloomsbury address, the Proserpine address and the Goorganga Plains address, the following documents:

• a covering letter, on LAQ's letterhead, which stated it enclosed, by way of service on Mr Lee:

1. –Ms Neil's affidavit;

1. –Ms Neil's application; and

1. –a Directions Order;

• Ms Neil's affidavit;

• Ms Neil's application; and

• a Directions Order, prepared on behalf of Ms Neil, which relevantly provided:

1. –in accordance with the extension of time I gave to Ms Neil, the date for service of Ms Neil's application and her affidavit on Mr Lee was 20 October 2023; and

1. –the time, date and place of hearing of Ms Neil's application, namely  9:30  am on 9 November 2023 at Level 21, 66 Eagle Street Brisbane ('the Directions Order');

39. [39]
    The service on Mr Lee of these documents was in accordance with the combined effect of r 28(1)(f) and r 28(3)(b)(i) of the Rules.

40. [40]
    While the 18 September Order was not included in the material served on Mr Lee by Ms Neil, the Directions Order that was served on Mr Lee specified that Ms Neil's application would be heard by the Commission in Brisbane at 9.30 am on 9 November 2023.

41. [41]
    By that evidence, together with the service of Ms Neil's application and Ms Neil's affidavit on Mr Lee, I am satisfied that Mr Lee was given notice of the hearing of Ms Neil's application scheduled for 9 November 2023 at 9.30 am.

42. [42]
    Ms Neil's application was called at the commencement of the hearing on 9 November 2023.^[20] Mr Lee did not attend that hearing.

43. [43]
    For the reasons given in paragraphs [38] to [41] of these reasons, Mr Lee was notified of the hearing of Ms Neil's application scheduled for 9 November 2023. Section 539(g) of the Industrial Relations Act 2016 relevantly provides that, except as otherwise provided for by that Act or the Rules, the Commission may hear and decide an industrial cause in the absence of a party. The phrase 'industrial cause' includes '… a work-related matter under the Anti-Discrimination Act 1991.'^[21]

Should I determine Ms Neil's application?

44. [44]
    Rule 6 of the Rules relevantly provides that the purpose of the Rules is to provide for the just and expeditious disposition of the business of the Commission at a minimum of expense. Given Mr Lee's failure to comply with the 18 April Order, his failure to attend the conciliation conference before Industrial Commissioner Power on 6 September 2023 and his failure to attend the hearing of Ms Neil's application on 9 November 2023, I can see no reason why I should not determine Ms Neil's application.

45. [45]
    Ms Neil has filed affidavit material upon which she relies in support of her claims that Mr Lee has contravened the AD Act. Further, Ms Willoughby of Counsel has provided written and oral submissions in support of the relief sought in Ms Neil's application.

Has Mr Lee contravened the AD Act as alleged by Ms Neil?

Ms Neil's evidence

46. [46]
    The only evidence filed in support of Ms Neil's claims was Ms Neil's affidavit. Mr Lee did not appear at the hearing of Ms Neil's application on 9 November 2023. Therefore, Ms Neil's affidavit evidence is uncontradicted.

47. [47]
    In terms of the Commission's acceptance of Ms Neil's evidence, in support of her claim that Mr Lee has contravened the AD Act and in support of the loss and damage Ms Neil claims was caused by Mr Lee's alleged contravention of the AD Act, the general proposition was referred to in R v Field,^[22] where Sofronoff P and Gotterson JA stated:^[23]

[38]  The principle that a court need not accept uncontradicted and unchallenged evidence is an old one that applies to all proceedings. In Swinburne v David Syme & Co Madden CJ said:

“These cases laid down the principle to which I most stoutly adhere, that where evidence is given on one side which is conclusive of the matter, which is in itself inherently probable and not unreasonable or improbable, and where it is not contradicted by evidence on the other side, the tribunal which hears it is bound to accept it. Because if it were otherwise the decision would be a matter of caprice, a mere matter of prejudice, so that some Judge might say – “I do not like this person or this kind of thing”. But in all cases where the evidence is probable and is sworn to, and is not contradicted, it ought to be accepted. But it is an equally certain proposition that no Judge and no tribunal is bound to accept evidence which is in itself inherently improbable and unreasonable, which is hesitating, doubting, shuffling, inconclusive, and unconvincing. That is no proof at all. The Judge is entitled to waive it aside, whether it is contradicted or not contradicted.”

48. [48]
    There are some confusing issues with Ms Neil's affidavit.

49. [49]
    First, the exhibit markings referred to in the body of the affidavit are not consistent with the documents exhibited to her affidavit. This resulted in a comparison table being handed up so I could be assured that I was looking at the correct exhibit when reading Ms Neil's affidavit.

50. [50]
    Secondly, as referred to below, some of the statements made in Ms Neil's affidavit are not clear or are inconsistent with the relevant document exhibited.

The relevant background

51. [51]
    In March 2021, Ms Neil was residing in Victoria. The accommodation in which she was staying was listed for sale, the consequence of which was that she needed new accommodation.^[24]

52. [52]
    On about 4 May 2021, Ms Neil placed a post on Facebook in a backpackers group called 'Aussie backpackers and lifts'. Ms Neil stated that she was seeking accommodation and that she had experience in operating AirBnBs. The post included a photograph of herself and her dog.^[25]

53. [53]
    On about 4 May 2021, a person she now knows as John Lee, responded to her Facebook post stating:

have a place in the whitsundays looking for caretaker u get to stay free in fully furnished house and if you want paid work have fruit shop on hiway onsite ph [phone number deleted] asap^[26]

54. [54]
    On the same day, 4 May 2021, Mr Lee sent a further direct message to Ms Neil on Facebook Messenger which stated:

hey Debbie I am in whisunday area looking for careaker good lifestyle up here and its a good spot give me a call if u think it suits ur needs [phone number deleted]^[27]

55. [55]
    On that same day, Ms Neil telephoned Mr Lee on the number he provided. Mr Lee advised Ms Neil that:

• he had a property formerly listed on AirBNB (called Blooming Mango Farm) that had been closed for a while and that he wanted to get that up and running again;

• he had a fruit store across the road from '… the Bloomsbury house' in which he needed someone to work; and

• he had between 4 to 5 houses including a house in Proserpine.^[28]

56. [56]
    Ms Neil advised Mr Lee that:

• she had fibromyalgia and it was a chronic condition for which she received a disability pension; and

• she could not tell him whether she would be able to work in the shop every day.^[29]

57. [57]
    In response, Mr Lee said that Ms Neil:

• would get paid for the hours she did in the shop and would get free accommodation if she ran the AirBNB as long as she paid $20.00 per week for power; and

• could live in one of the five bedrooms and then run the AirBNB for the remaining bedrooms.^[30]

58. [58]
    Mr Lee also told Ms Neil that she should call a BP Service Station, that was in walking distance from 'Bloomsbury', about organising her mail redirection. Ms Neil did so and was told by a female worker that Mr Lee '… ran the mango farm and he had a wife.'^[31] It was on the basis of that information Ms Neil decided the move to Queensland would be safe. Ms Neil then organised the details of her mail redirection.^[32]

The relevant events

59. [59]
    The following events then occurred:

• Ms Neil and Mr Lee spoke on the telephone and worked out that she would fly to Proserpine and that she would start work around 17 May 2021;^[33]

• on 5 May 2021, Ms Neil organised and paid for her flight to Queensland on 17 May 2021, and she also made other arrangements to move to Queensland including arranging for a removalist, selling some of her property and organising for her dog to be transported to Mackay;^[34] and

• on 8 May 2021, Mr Lee and Ms Neil had a telephone conversation during which:

1. –Mr Lee told Ms Neil that he had a wife name Vicki; and

1. –Mr Lee asked Ms Neil about her family, in response to which she advised, amongst other things, that her father, since deceased, had been sexually abusive towards her when she was a child.^[35]

60. [60]
    Ms Neil's evidence then is that:

• on or about 9 May 2021 she received text messages^[36] from Mr Lee which stated:

Want U to think about me let ur fingers pleasure U then type u when U have a orgasm lol^[37]

Sock cunt yeah I know^[38]

Haha better delate that^[39]

• on or about 10 May 2021, before she was scheduled to leave Victoria, she received the following text messages from Mr Lee:

1. –sent at 1.59 am: 'Have you got grandkids… why don't you let me help you';

1. –sent at 2.23 am: 'So are you coming up';

1. –sent at 2.26 am: 'What you want to make a porn movie together. I'm in'^[40]; and

• again on 10 May 2021, at 2.31 am, she received another text message from Mr Lee which stated: ' Fuck I want U bad. u ever seen a bulldog eating custard.'^[41]

61. [61]
    In relation to the last mentioned text message, Ms Neil's evidence was that she recalled that she replied telling him to stop, but that she no longer had a copy of that text message.^[42]

62. [62]
    Ms Neil's evidence then is that on 16 May 2021:

• at 3.07 pm, she sent the following text message to Mr Lee:

i have been robbed, got stabbed by a needle, used, I haven 't asked u for a thing. Because 2 a pub or something doesn 't mean i fuck. i shouldn't be having this conversation with u even you and Vicki are my landlords/boss& was hoping to be trusted mates..Dont u read back through your messages? Maybe u were pissed last Sunday cause u had better read them. Do i finger myself when i think of u& orgam? u picked me out to be my partner when u seen me, fuck i want u bad. Thats some of the messages thats why i lost it last week

i thought we had got over that and im certainly not a liar tjey are in black and white, thats why i bring it up.. what do  i have to loose my fucking mind [mind blown emoji inserted here] and money, then no home.. Trinas mum, step dad and brother have turned up 2 say bye.. i will book airbnb or something til dog turns up then work out options. so u don't need to pick me up. .i sort it later got headache and have 2 act happy in front of everyone;^[43]

• at 3.16 pm, Mr Lee sent Ms Neil a text message that stated:

After U told me that ur dad molested U and started crying I didn't know how to handle that never been brought before me before just wanted you to feel wanted as I don 't know if U were suicidail and that 's the last thing I want U to feel debbie. i know you've had a rough the ok to and I feel sorry for U but U don't need sympathy U need support and I will support U only if U let me^[44]

• at 4.57 pm, Ms Neil sent Mr Lee a text message that stated:

u blame a dead man (dad) 40 plus yrs that happened, for your messages u sent to me. As i have my certificate in community services, Childcare and disability, when someone confides in you that is about Child abuse in anyway or age the last thing u should do is send sexuality messages days later. Then blame the victim (me) for sympathy and needing to feel better not once i want that. i was crying because i was overwhelmed with house, moving, exhausted, mothers day, realeaste, dog. Not my dad i had councling yrs ago for that and have dealt with it, that's not who i am 40yrs later, but thanks for reminding me today what happened as a child. i will work out something and get in touch with the bp to forward sustgen back to company. it was not my dads fault.^[45]

63. [63]
    Ms Neil's evidence then is that on 17 May 2021:

• she was travelling by car to the airport with the intention of continuing to the Whitsundays because she had no other accommodation, but Mr Lee kept sending messages to her which made her realise she could not continue with that travel;^[46]

• she received the following text messages from Mr Lee:

1. –Well I will be up front I picked u out as soon as I seen ur pick to be my partner;^[47]

1. –To me ur drop dead gorgeous but couldn't say that up front didn't want to scare U;^[48] and

• she felt in shock and appalled by Mr Lee's behaviour, decided not to go to the Whitsundays, took the sim card out of her phone because she was distressed by Mr Lee's behaviour and did not want to hear from him, and then booked into the St Albans hotel.^[49]

64. [64]
    Ms Neil's evidence then is that she was confused by Mr Lee sending those messages as she never had any intention to start a relationship with him, she did not give him any indication that she was interested in him, and she was only ever interested in accommodation and work.^[50]

65. [65]
    The next part of Ms Neil's affidavit evidence is confusing.

66. [66]
    Ms Neil further stated that:

• she was distressed about the fact that she was now homeless, and had very few possessions having sold many of her personal effects because of her intention to move to the Whitsundays;^[51] and

• after she did not board her flight (on 17 May 2021), Mr Lee started phoning her repeatedly and sent her several text messages to which she did not respond^[52] (which, having regard to her evidence, may be those text messages set out in paragraph [67] below).

67. [67]
    Ms Neil's evidence is that the text messages she received on 20 May 2021 were:

I honestly believe you had no idea how I felt; and

Let me know if you want to fly up Friday or sat as about $380.00 and will pay this end at airport.^[53]

68. [68]
    Ms Neil's evidence was that because she had removed the sim card from her mobile phone, she was not initially aware that Mr Lee was continuing to call her.^[54] The confusion about Ms Neil's evidence arises from her evidence that she only discovered, on 22 May 2021:

• that Mr Lee started telephoning her repeatedly; and

• that on 20 May 2021, Mr Lee sent her several text messages to which she did not respond.^[55]

69. [69]
    From Ms Neil's evidence, I am unsure if the text messages referred to in paragraph [67] were viewed by her on 20 May 2021 or on 22 May 2021.  From Ms Neil's evidence,  I infer that 22 May 2021 was the date she reinserted her sim card. Similarly, it is not clear if Ms Neil only discovered, on 22 May 2021, again being the date which I infer she reinserted her mobile phone sim card, that Mr Lee had been phoning her on 17 May 2021.

70. [70]
    Ms Neil's evidence then was that she received a text message from the Victorian Police requesting that she contact them as soon as possible or that she would be listed as a missing person. Again, although it is not clear from Ms Neil's affidavit, it seems to be the case that this text message from the Victorian Police was only discovered by her when she reinserted the sim card on her mobile phone which I infer was done on 22 May 2021.^[56]

71. [71]
    Ms Neil then said that:

• she contacted the Victorian Police who disclosed that Mr Lee had represented to them that he was her partner; and

• she told the Victorian Police:

1. –that was  not true;

1. –what had occurred;

1. –she was not missing, from Mr Lee or anyone else, she was fine and that she had never met Mr Lee;

1. –she was at her girlfriend's house; and

1. –she was intending to go to Queensland for work and accommodation; and

• the Victorian Police recommended that she get legal advice.^[57]

72. [72]
    Ms Neil's evidence then was that:

58. On 22 May 2021, John sent me further messages saying:

If U still want to come up I will pay ur flight n give U a home.

U really have no idea how I felt do you

59. On 23 May 2023, I replied, saying: go away please.

Annexed and marked DN15 is a printout of a screenshot of text messages.

73. [73]
    However, the texts Ms Neil refers to in paragraph 58 of her affidavit are those texts contained in Exhibit 'DN 5' to her affidavit, the first of which is incomplete, and which state:

and look after her till U descide to come up. sure we had our differences but I never carry bitterness or grudges will leave it in ur court whatever U descide I will respect

Hope U are safe debbie

If U still want to come up I will pay ur flight n give U a home

U really have no idea how I felt do you

74. [74]
    Ms Neil's evidence then is:

60. After this, John continued to harass me by phone making comments to me which were sexual in nature, including:

1. on 1 June 2021, John messaged me at 10:53 pm stating:

1. You have no fucken chance now U nasty bitch. [sic]; and

2. And what a let down them fuckin ugly pics U sent me head there like kicked in shit can drug fucked idiot [sic];

2. you really are a nasty slut – I took a screenshot of this message, but it has since been deleted and I no longer remember when I received it exactly;

3. U have a house for life s ok me one who would worship you and it's still not good enough – I took a screenshot of this message, but it has since been deleted and I no longer remember when I received it exactly.

75. [75]
    I assume that all of these texts were received by Ms Neil on 1 June 2021.

76. [76]
    The screenshot of the text message referred to in paragraph 60(a)(i) of Ms Neil's affidavit is the first page of exhibit 'DN5' to her affidavit. However:

• there is a screenshot of the text message referred to in paragraph 60(b) of Ms Neil's affidavit which is exhibit 'DN7' to her affidavit; and

• there is a screenshot of part of the text message referred to in paragraph 60(c) of Ms Neil's affidavit which is exhibit 'DN10' to her affidavit.

77. [77]
    Further, the entire screenshot which comprises exhibit 'DN10' states:

[first part of text indecipherable] have house for life s ok me one who would worship U and it's still not good enough. can see it in 12 months U will hook up some dole blushing drug fucked idiot

78. [78]
    Despite these confusing issues with Ms Neil's affidavit, overall, having regard to her evidence as a whole about Mr Lee's communications with her, there is nothing inherently improbable and unreasonable with her evidence.

Has Mr Lee contravened the AD Act by sexually harassing Ms Neil?

Ms Neil's contentions

79. [79]
    Ms Neil contends that having regard to the definition of sexual harassment contained in s 119 of the AD Act:

• the text messages sent by Mr Lee to her, as referred to in paragraph [60] of these reasons, were:

1. –unsolicited demands or requests by Mr Lee for sexual favours from her;

1. –in the alternative, remarks with sexual connotations in relation to her; or

1. –in the alternative, other unwelcome conduct of a sexual nature in relation to her;^[58]

• each of the text messages sent by Mr Lee to her, as referred to in paragraph [63] and paragraph [74] were:

1. –remarks with sexual connotations in relation to her; or

1. –in the alternative, other unwelcome conduct of a sexual nature in relation to her.^[59]

The relevant provisions of the AD Act

80. [80]
    Chapter 3 of the AD Act prohibits sexual harassment. That chapter relevantly provides:

Part 2 Prohibition of sexual harassment

118  Sexual harassment

A person must not sexually harass another person.

119  Meaning of sexual harassment

Sexual harassment happens if a person–

1. subjects another person to an unsolicited act of physical intimacy; or

2. makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person; or

3. makes a remark with sexual connotations relating to the other person; or

4. engages in any other unwelcome conduct of a sexual nature in relation to the other person;

and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so–

5. with the intention of offending, humiliating or intimidating the other person; or

6. in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.

Examples for paragraph (a) –

• physical contact such as patting, pinching or touching in a sexual way

• unnecessary familiarity such as deliberately brushing against a person

Example for paragraph (b) –

sexual propositions

Examples for paragraph (c) –

• unwelcome and uncalled for remarks or insinuations about a person’s sex or private life

• suggestive comments about a person’s appearance or body

Examples for paragraph (d) –

• offensive telephone calls

• indecent exposure

120  Meaning of relevant circumstances

The circumstances that are relevant in determining whether a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct include–

1. the sex of the other person; and

2. the age of the other person; and

3. the race of the other person; and

4. any impairment that the other person has; and

5. the relationship between the other person and the person engaging in the conduct; and

6. any other circumstance of the other person.

81. [81]
    There are a number of elements to this provision.

82. [82]
    First, the Commission has to determine whether, as a matter of fact, any of the forms of conduct, contained in s 119(a) to (d) of the AD Act, has occurred. In terms of s 119(d) of the AD Act, the question of whether any conduct of a sexual nature in relation to the other person, if established, was unwelcome, is a question of fact which is subjective.^[60]

83. [83]
    Secondly, if the Commission finds that any of the identified forms of conduct contained in s 119(a) to (d) of the AD Act occurred, then it has to determine:

• if the person engaging in that conduct did so with the intention of offending, humiliating or intimidating the other person; or

• if the person engaging in that conduct did so in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.

84. [84]
    Thirdly, whether the person engaging in the conduct did so in circumstances, where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct, is an objective test.^[61] The circumstances to determine this objective test are include those in s 120 of the AD Act.

85. [85]
    In relation to the similar provisions in s 28A(1) of the Sex Discrimination Act 1984,^[62] Perram J, in Hughes v Hill,^[63] relevantly stated:

[26] In answering this question, the reasonable person is assumed by the provision to have some knowledge of the personal qualities of the person harassed. The extent of the knowledge imputed to the reasonable person is a function of the ''circumstances'' which the provision requires be taken into account. Mention has already been made of the nature of the relationship between the harasser and the harassed. It is convenient also to note that the circumstances will include any disability the harassed person is suffering from (subs (1A)(c)) as well as matters such as sex, age, religious belief or sexual orientation (subs (1A)(a)). But the list in subs (1A) is merely inclusive so that other unspecified but relevant circumstances may also be taken into account. The canvas is broad.

[27] Equipped then with that information, the question to be asked is whether the reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. Each of these is different in kind and it should not necessarily be thought that they are arranged in order of seriousness. It may, in some cases, be worse to be deeply offended than it is to be slightly humiliated.

Ms Neil's submissions

86. [86]
    Ms Neil submits:

• she is a 48-year-old woman who suffers from fibromyalgia and is in receipt of a disability support pension;
• in about March 2021, she was told that her long-term rental home in Victoria would be placed on the market and for that reason, she sought alternate accommodation by placing a post in a Facebook group stating that she was looking for accommodation with her dog and that she had experience with AirBnBs;
• on 4 May 2021:

1. –she received a response from Mr Lee, in the form of a direct message and a comment on her Facebook post in which he stated that he had a property in the Whitsundays, for which he needed a caretaker;

1. –some messages ensued and he also advised her that he had a fruit shop across the road from the property, on the side of the highway, and she could work there;

1. –they had a telephone call later that day and she told Mr Lee that she had fibromyalgia so she was unsure she could commit to working in the shop, to which he stated that she would just be paid for the hours she did in the shop;

1. –they agreed that she would pay Mr Lee $20 per week for power and that she would live in one of the five bedrooms of the house, located in Bloomsbury, and run the AirBNB, being an arrangement to commence on 17 May 2021 which made Mr Lee both her employer and her landlord; and

• on about 9 May 2021, 5 days after their first contact, Mr Lee started sending her a series of sexually explicit text messages (which are set out earlier in these reasons);
• what is important, is that she told Mr Lee to stop, and that he was her boss and landlord and that she would not come to Queensland if he did not stop;
• Mr Lee did not stop and instead he commenced sending romantic overtures, suggesting that they would be a couple;
• on 17 May 2021, which was the day she was intending to relocate, she decided not to do so because of Mr Lee's conduct, even though she had made arrangements to relocate, including paying for flights for herself and her dog, and selling her furniture;
• when she did not arrive, Mr Lee started repeatedly telephoning her, he then reported her missing to the (Victorian) Police, and told the Police that she was his partner when they had never met in person, and that they had first made contact 13 days before this;
• the text messages continued, and became increasingly offensive and threatening, through to June 2021;
• the text messages are:

1. –unsolicited demands or requests by Mr Lee for sexual favours from her;

1. –in the alternative, remarks with sexual connotations in relation to her; or

1. –in the alternative, other unwelcome conduct of a sexual nature in relation to her;

• she is a woman with a disability, who was being harassed by her employer and landlord, in circumstances where she was otherwise facing homelessness, and she had a previous history of abuse which was known to Mr Lee;

• she was very vulnerable to the kind of exploitation he meted out;

• the messages are objectively offensive and they become more explicit and threatening, they are also humiliating and intimidating; and

• Mr Lee was asked to stop, and he did not do so, which renders his conduct much more serious such that the sexual harassment should be regarded as being serious in all of the circumstances.^[64]

Mr Lee sexually harassed Ms Neil

87. [87]
    In my view, the following text messages sent by Mr Lee to Ms Neil namely:

Want U to think about me let ur fingers pleasure U then type u when U have a orgasm lol

Sock cunt yeah I know

What you want to make a porn movie together. I'm in

Fuck I want U bad. u ever seen a bulldog eating custard

are  clearly remarks Mr Lee made with sexual connotations relating to Ms Neil within the meaning of s 119(c) of the AD Act. Further, the second last remark is an unsolicited request, by implication, for sexual favours from Ms Neil within the meaning of s 119(b) of the AD Act; and the last remark is a direct, unsolicited request for sexual favours from Ms Neil within the meaning of s 119(b) of the AD Act.

88. [88]
    Further, the following text messages sent by Mr Lee to Ms Neil, namely:

Well I will be up front I picked u out as soon as I seen ur pick to be my partner;

To me ur drop dead gorgeous but couldn't say that up front didn't want to scare U

are remarks Mr Lee made that is unwelcome conduct of a sexual nature in relation to Ms Neil within the meaning of s 119(d) of the AD Act. The remarks are unwelcome because of Ms Neil's evidence that, after Mr Lee sent these texts, she felt in shock and appalled by his behaviour.^[65]

89. [89]
    Further still, the following text messages sent by Mr Lee to Ms Neil, namely:

You have no fuckin chance now U nasty bitch

And what a let down them fuckin ugly pics U sent me head there like kicked in shit can drug fucked idiot

You really are a nasty slut

U have house for life s ok me one who would worship you and it's still not good enough

are remarks Mr Lee made with sexual connotations relating to Ms Neil within the meaning of s 119(c) of the AD Act.

90. [90]
    The conclusion in paragraph [89] of these reasons is one I reach because when those remarks are considered in the context of the earlier text messages Mr Lee sent to Ms Neil (being the remarks referred to in paragraphs [87] and [88] of these reasons), they clearly are remarks Mr Lee made with sexual connotations relating to Ms Neil. That is, they were made on the basis that because Ms Neil would not be coming to work for Mr Lee and stay in his accommodation, she would not be acceding to Mr Lee's requests for sexual favours.

91. [91]
    In the alternative, Mr Lee's conduct, referred to in paragraph [87] of these reasons, was other unwelcome conduct of a sexual nature in relation to Ms Neil within the meaning of s 119(d) of the AD Act. The conduct was unwelcome because of:

• Ms Neil's evidence that, after Mr Lee sent the last text referred to in paragraph [87] of these reasons, she replied to him telling him to stop;^[66]

• Ms Neil's evidence that on 16 May 2021, she sent two texts to Mr Lee, remonstrating with him about the texts he sent her, because Mr Lee was her employer and her landlord.^[67]

92. [92]
    Did Mr Lee engage in the conduct in circumstances where a reasonable person would have anticipated the possibility Ms Neil would be offended, humiliated or intimidated by the conduct?

93. [93]
    In this regard, Ms Neil contended that, having regard to s 120 of the AD Act:

• the relevant circumstances include:

1. –her age, gender, disability, the power imbalance caused by Mr Lee's status as her employer and landlord, and her previous history of abuse which was known to Mr Lee; and

1. –that Mr Lee is male, that he had agreed to employ and accommodate her and that their relationship was of a professional nature; and

• in all of the circumstances, a reasonable person would have anticipated the possibility that she would be offended, humiliated or intimidated by the text messages sent by Mr Lee.^[68]

94. [94]
    I generally accept these contentions.

95. [95]
    A reasonable person, knowing Ms Neil's history of abuse, her disability and the relationship between Ms Neil and Mr Lee, being that of employer and worker and where Mr Lee was providing accommodation for Ms Neil upon her move from Victoria to Queensland, would have anticipated the possibility that Ms Neil would be humiliated by the Mr Lee's conduct.

96. [96]
    Further still, a reasonable person knowing these matters would have anticipated the possibility that Ms Neil would be intimidated by Mr Lee's conduct.

Can the Commission determine the complaint that Mr Lee contravened the AD Act in the work area and the accommodation area on the basis of Ms Neil's sex?

97. [97]
    The attributes upon which discrimination is prohibited by the AD Act include sex^[69] and impairment.^[70]

98. [98]
    In her contentions, Ms Neil also claims that she has been subject to unlawful discrimination in the work area and in the accommodation area on the basis of her sex.

99. [99]
    Ms Neil contends that:

• Mr Lee engaged in discriminatory conduct in the area of work within the meaning of s 15(1)(f) of the AD Act because he treated her less favourably than a male employee (the comparator) would have been treated in the same circumstances;
• Mr Lee engaged in discriminatory conduct in the accommodation area within the meaning of s 83(d) of the AD Act because he treated her less favourably than a male tenant/caretaker (the comparator) would have been treated in the same circumstances; and
• Mr Lee engaged in the following conduct which constitutes less favourable treatment:

1. –sexually harassing her as referred to in paragraph [60], paragraph [63], and paragraph [74] of these reasons;

1. –harassing her by telephone and text message as referred to in paragraph [60], paragraph [63], paragraph [68] and paragraph [74] of these reasons;

1. –reporting to the Victorian Police that she was missing, as referred to in paragraphs [70] to [71] of these reasons; and

1. –making derogatory comments to her as referred to in paragraph [74] of these reasons.^[71]

100. [100]
     In her written submissions, Ms Neil submits:

21. We further say that his conduct amounts to discrimination on the basis of Ms Neil's sex, because he would not have treated a male employee or caretaker in the same way. That discrimination was in both the work and the accommodation areas.
22. The Respondent engaged in the following conduct which constitutes less favourable treatment:
    1. sexually harassing the Complainant,
    2. harassing and threatening the Complainant by telephone and text message;
    3. reporting to the police that the Complainant was missing; and
    4. making derogatory comments to the Complainant.
23. Accordingly, we say that Mr John Lee is in breach of the Anti-Discrimination Act because he has sexually harassed Ms Neil on multiple separate occasions between 4 May and June 2021 , and because he has directly discriminated against her on the basis of her sex.^[72]

101. [101]
     The Complaint was referred from the Queensland Human Rights Commission to this Commission pursuant to s 166(1)(a) of the AD Act. On the basis of the content of what Ms Neil filed with the Queensland Human Rights Commission, it treated the Complaint as alleging:

• impairment discrimination in the work area;

• victimisation; and

• sexual harassment.

102. [102]
     Sections 174B of the AD Act provides:

174B  Functions of industrial relations commission

The industrial relations commission has the following functions–

1. in relation to complaints about contraventions of this Act that are referred, or to be referred, to the commission under this Act–

1. to make orders under section 144 before the complaints are referred to the tribunal; and

2. to review decisions of the commissioner under section 169 about lapsing of the complaints; and

3. to enforce agreements for resolution of the complaints by conciliation; and

4. to hear and decide the complaints;

2. to grant exemptions from this Act in relation to work-related matters;

3. to provide opinions about the application of this Act in relation to work-related matters;

4. any other function conferred on the commission by this Act;

5. to take any other action incidental or conducive to the discharge of a function mentioned in paragraphs (a) to (d).

103. [103]
     Two immediate issues arise from the referred Complaint compared to Ms Neil's claims about discrimination in the work area and in the accommodation area on the basis of sex.

104. [104]
     First, the referred Complaint does not allege a complaint in the accommodation area.

105. [105]
     Secondly, the referred Complaint does not allege a complaint in the work area on the basis of sex.

106. [106]
     The Commission relevantly has the function of hearing and deciding complaints that have been referred to it. 

107. [107]
     There has been no application to amend the referred Complaint. There has been no order made by the Commission allowing the referred Complaint to be amended to include these claims. I recalled the matter and gave Ms Neil the opportunity to be heard about this issue. Ms Neil filed further written submissions on this issue and submitted that she did not press her claims of sex discrimination.

108. [108]
     In these circumstances, I will not decide the claims made by Ms Neil in her contentions of discrimination in the work area and in the accommodation area on the basis of sex.

What orders, if any, should be made in favour of Ms Neil?

109. [109]
     In her final submissions, Ms Neil seeks the following compensation orders against Mr Lee:

• $607.10 as economic loss for the expense incurred for temporary accommodation as a result of Mr Lee's conduct;
• $30,000.00 as general damages; and

• $20,000.00 as aggravated damages having regard to the serious and persistent nature of the conduct, the respective characteristics of the parties, and Mr Lee's disregard for the conduct of these proceedings.^[73]

110. [110]
     Section 209 of the AD Act provides:

209  Orders the tribunal may make if complaint is proven

1. If the tribunal decides that the respondent contravened the Act, the tribunal may make 1 or more of the following orders–

1. an order requiring the respondent not to commit a further contravention of the Act against the complainant or another person specified in the order;

2. an order requiring the respondent to pay to the complainant or another  person, within a specified period, an amount the tribunal considers appropriate as compensation for loss or damage caused by the contravention;

3. an order requiring the respondent to do specified things to redress loss or damage suffered by the complainant and another person because of the contravention;

4. an order requiring the respondent to make a private apology or retraction;

5. an order requiring the respondent to make a public apology or retraction by publishing the apology or retraction in the way, and in the form, stated in the order;

6. an order requiring the respondent to implement programs to eliminate unlawful discrimination;

7. an order requiring a party to pay interest on an amount of compensation;

8. an order declaring void all or part of an agreement made in connection with a contravention of this Act, either from the time the agreement was made or subsequently.

2. An order may be made under subsection (1)(b) in favour of a person on whose behalf a representative complaint was made, without the necessity for the person to make an individual complaint, if on the evidence before it the tribunal is able to assess the loss or damage of the person.

3. If, in respect of a representative complaint–

1. the tribunal decides that the respondent contravened the Act; but

2. the tribunal is unable, on the evidence before it at the hearing of the representative complaint, to assess the loss or damage of a person on whose behalf the complaint was made;

the person may subsequently make a request for the tribunal to assess the person’s loss or damage.

4. In this section, the specified things a respondent may be required to do, include, but are not limited to–

1. employing, reinstating or re-employing a person; or

2. promoting a person; or

3. moving a person to a specified position within a specified time.

5. In this section–

damage, in relation to a person, includes the offence, embarrassment, humiliation, and intimidation suffered by the person.^[74]

111. [111]
     In my view, a number of principles about the application of s 209(1)(b) of the AD Act may be derived from the approach taken to the application of s 46PO(4)(d)^[75] of the Australian Human Rights Commission Act 1986 ('the AHRCA').

112. [112]
     First, the power provided by s 209(1)(b) of the AD Act, to order compensation for loss and damage caused by the contravening conduct of a respondent, is a statutory power which is conferred in the context of the legislative scheme dealing with unlawful discrimination.^[76] Thus, the Commission, in assessing an amount of loss or damage for the purpose of making an order under s 209(1)(b) of the AD Act, is attributing legal responsibility, namely, blame, in order to give effect to a statute with a discernible purpose; and that purpose provides a guide to the requirements of justice and equity in the case where the requirements are determined by the judge's concept of principle and of the statutory purpose.^[77] 

113. [113]
     Secondly, unlawful discrimination is proscribed in several different fields of activity which give rise to the need for different kinds of remedies. Unlawful discrimination may occur in a setting which aligns its consequences closely with the consequences of common law causes of action such as breach of contract, or it may occur in a setting which aligns its consequences with common law causes of action such as intentional torts. In other circumstances the statutory cause of action for unlawful discrimination has no close relative in the common law which is why it is important to recall that it is the words of the statute which will provide the criterion for such an order, not common law principles.^[78]

114. [114]
     In Richardson v Oracle Corporation Australia Pty Ltd ('Oracle'),^[79] which was a case involving sexual harassment under the Sex Discrimination Act 1984, Kenny J stated:

27. Section 46PO(4)(d) of the AHRC Act supplies the governing criterion for the assessment of the damages to be awarded under this provision. That is, s 46PO(4)(d) contemplates that these damages will be ‘by way of compensation’ (emphasis added). In giving content to the concept of compensatory damages in this context, the authorities establish that the court may be guided, at the assessment stage, by the general principles governing the assessment of damages in tort: see Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 (Hall v A &A Sheiban) at 238-239 (Lockhart J), 256-257 (Wilcox J); and 281 (French J) and Qantas Airways Ltd v Gama (2008) 167 FCR 537 (Qantas Airways Ltd v Gama) at [94] (French and Jacobson JJ). In the latter case, French and Jacobson JJ stated (at [94]) in respect of s 46PO(4) (in its current form):

The damages which can be awarded under s 46PO(4) ... are damages “by way of compensation for any loss or damage suffered because of the conduct of the respondent”. Such damages are entirely compensatory. In many cases, as in damages awarded under s 82 of the Trade Practices Act 1974 (Cth) the appropriate measure will be analogous to the tortious. That may not be in every case. Ultimately, it is the words of the statute that set the criterion for any award.

115. [115]
     In Watts v Australian Postal Corporation ('Watts'),^[80] a case concerning a contravention of the Disability Discrimination Act 1992 where compensation was sought under section 46PO(4) of the AHRCA, Mortimer J relevantly stated:

281. The provision grants plenary power to the Court to make orders “as it thinks fit”. In particular, subs 4(d) provides the Court with a “wide discretion as to the amount of compensation the Court may order for loss or damage suffered because of unlawful discrimination”: Ewin v Vergara (No 3) [2013] FCA 1311 at [601] per Bromberg J. The Court’s exercise of that discretion is to be governed by the text of the relevant statute: Qantas Airways Ltd v Gama (2008) 167 FCR 537 at [94] per French and Jacobson  JJ. The principles relevant to the assessment of damages in tort may be of assistance (see Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 239 per Lockhart J, at 281 per French J), but only to the extent that they do not conflict with the words of the statute: Ewin [2013] FCA 1311 at [604] per Bromberg J. ^[81]

116. [116]
     Thirdly, consideration must be given to the phrase used in s 209(1)(b) of the AD Act, namely, compensation for loss or damage '… caused by the contravention.' In Watts, Mortimer J stated of s 46PO(4)(d) of the AHRCA:

282. An order for compensation may be made for “any loss or damage suffered because of the conduct of the respondent”. Phrases such as “by reason of”, “because of” and “by virtue of” require a “practical application of causation principles”: Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202 at 213. A phrase like “because of” “implies a relationship of cause and effect” between the unlawful conduct of the respondent and the damage incurred by the applicant: see Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 at 321 per Lockhart J; Ewin at [605].^[82]

117. [117]
     The statutory phrase '… caused by' connotes a direct or proximate relationship of cause and effect.^[83] Thus, there is no reason the construction given in Watts to the phrase '… because of' in s 46PO(4)(d) of the AHRCA should not be given to the phrase '…caused by' in s 209(1)(b) of the AD Act. In my view, given the similar statutory text, like s 46PO(4)(d) of the AHRCA,^[84] s 209(1)(b) of the AD Act is concerned with the relationship of cause and effect.

118. [118]
     Further where the Commission is considering a statutory power to award damages, the statutory objects and purposes may inform the proper approach to causation in a particular case.^[85]

119. [119]
     Fourthly, two other matters seem clear about the discretion to award compensation by way of general damages. They are:

• it is appropriate to obtain assistance from awards of damages in other sexual harassment cases with similar facts;^[86] and

• general damages are not assessed by performing arithmetical adjustments to prior determinations.^[87]

120. [120]
     Fifthly, aggravated damages may form part of an order for compensation under s 209(1)(b) of the AD Act.^[88] Aggravated damages compensate the plaintiff where the harm done to them by a wrongful act was aggravated by the manner in which the act was done.^[89] The character of the conduct necessary has been described as lacking bona fides, or being improper or unjustifiable.^[90] The aggravation may come from subsequent conduct to the same effect as the contravening conduct, such as the way a respondent conducted proceedings brought against them.^[91]

The claim for non-economic loss

121. [121]
     Ms Neil claims general damages of $30,000 and aggravated damages of $20,000.

122. [122]
     The present case involves the contravention by Mr Lee of the AD Act by his sexual harassment of Ms Neil. Chapter 3 of the AD Act relevantly provides:

Part 1 Act’s freedom from sexual harassment purpose

117  Act’s freedom from sexual harassment purpose and how it is to be achieved

1. One of the purposes of the Act is to promote equality of opportunity for everyone by protecting them from sexual harassment.

2. This purpose is to be achieved by–

1. prohibiting sexual harassment; and

2. allowing a complaint to be made under chapter 7 against a person who has sexually harassed; and

3. using the agencies and procedures established under chapter 7 to deal with the complaint.

123. [123]
     The clear purpose of ch 3 of the AD Act is to promote equality of opportunity for everyone by protecting them from sexual harassment and prohibiting that conduct. It is this purpose which must be observed in attributing legal responsibility to Mr Lee and thereby guiding the requirements of justice and equity in determining an amount, I consider appropriate, as compensation for loss or damage caused to Ms Neil by the contravention of Mr Lee of s 118 of the AD Act.

124. [124]
     As Mortimer J stated in Wotton v State of Queensland:^[92]

[1608]  As I have noted, failure to observe standards of substantive equality has a spectrum of effects depending on the sphere of activity concerned and the nature of the conduct constituting the contravention. Compensation awarded for loss or damage “because of” contravening conduct must take into account the particular human rights nullified or impaired. It should also reflect the measure of causal connection between the contravening conduct and the loss or damage suffered.

125. [125]
     Having regard to ch 3 of the AD Act, Ms Neil had a legitimate expectation that upon her and Mr Lee agreeing for her to travel to Queensland to manage the AirBnB and to take up the accommodation associated with that work for Mr Lee, she could do so in an environment where she would not be subject to the disgraceful remarks Mr Lee made to her.

126. [126]
     The remarks Mr Lee made to Ms Neil, contained in the text messages he sent to her on 9 May 2021, 10 May 2021, 17 May 2021 and 1 June 2021, as set out in these reasons for decision, are remarks amounting to sexual harassment which include remarks of the grossest kind that could be made to someone, let alone to someone in the position of Ms Neil. It  must be  remembered that Ms Neil was coming to work for Mr Lee and to be accommodated by him for the purposes of undertaking that work. Ms Neil was relocating from Victoria to Queensland for those purposes.

127. [127]
     Ms Neil's evidence is that she did not travel to Queensland on the basis of the text messages Mr Lee sent to her. Indeed, on the day of her travel to Queensland, Ms Neil removed the sim card from her mobile phone because she was distressed by Mr Lee's conduct. Having regard to the content of the remarks made by Mr Lee to Ms Neil, as contained in the text messages Mr Lee sent to her on 9 May 2021, on 10 May 2021 and on 17 May 2021, it is entirely understandable why Ms Lee did not complete the travel to Queensland to work for Mr Lee and to be accommodated by him. Ms Neil states that following Mr Lee's conduct, she had low self-esteem, her dream of moving to Queensland was destroyed and she had lost everything for which she had worked. Again, this effect on Ms Neil is entirely understandable and plausible having regard to the graphic nature of the remarks made by Mr Lee to Ms Neil.

128. [128]
     Ms Neil's further evidence was that she was admitted into the Bendigo Health Short Term Treatment Facility following her attempt at suicide. While Ms Neil does not state the date of this attempt, there is evidence which tends to prove that she was admitted  into that Facility (being a facility that provides psychiatric services), being the letter to her from Bendigo Health dated 1 July 2021. However, Ms Neil herself does not state that Mr Lee's conduct was the cause of, or that it had any causal connection with, her suicide attempt. There is no medical evidence that directly links Mr Lee's conduct to Ms Neil's suicide attempt. Notwithstanding the above, it is clearly understandable why Ms Lee felt she had low self-esteem as a consequence of Mr Lee's conduct. Further, prior to Mr Lee's conduct, Ms Neil seemed to be a person looking forward to re-locating to Queensland. For these reasons, my view is that there is some causal connection between Mr Lee's conduct and her admission to the Bendigo Health Short Term Treatment Facility.

129. [129]
     Ms Willoughby submits that having regard to the significant detriment to Ms Neil as a result of Mr Lee's conduct, an amount of $30,000 would be an appropriate award as general damages. For the reasons I have given above, I am of the view that, taking in to account the nature of Mr Lee's contravening conduct and its effect on Ms Neil, that amount meets the purpose of ch 3 of the AD Act, namely to promote equality of opportunity for everyone by protecting them from sexual harassment and prohibiting such conduct. In making this assessment, I was not referred to any comparator authority that has similar facts. From my own research, I have been unable to find a comparator authority that has similar facts as the present case.

130. [130]
     There are also clear circumstances of aggravation.

131. [131]
     First, after sending Ms Neil text messages on 9 and 10 May 2021, Mr Lee, by his text message to Ms Neil sent on 16 May 2021,^[93] tried to excuse his behaviour on the basis that Ms Neil had told her about events that had occurred to her as a child.

132. [132]
     Secondly, Mr Lee, by the text messages he then sent on 17 May 2021,^[94] tried to excuse his behaviour by the fact that he wanted Ms Neil to be his romantic partner even though he had never met her.

133. [133]
     Thirdly, when it became clear to Mr Lee that Ms Neil would not be re-locating to Queensland, the evidence is that Mr Lee told the Victorian Police that he was Ms Neil's partner and that she was missing.^[95]

134. [134]
     Fourthly, on 1 June 2021, when it became clear to Mr Lee that Ms Neil would not be  re-locating to Queensland, he then sent Ms Neil the vile text messages set out in paragraph 60 of Ms Neil's affidavit and as contained in exhibits 'DN5', 'DN7' and 'DN10' to her affidavit.

135. [135]
     Finally, another circumstance of aggravation is the fact that Mr Lee has completely disregarded the legal process before this Commission following Ms Neil making a complaint that she had been the subject of sexual harassment by Mr Lee.

136. [136]
     Ms Willoughby submits that an amount of $20,000 should be awarded for aggravated damages having regard to the serious and persistent nature of Mr Lee's conduct, the respective characteristics of the parties and Mr Lee's complete disregard for these proceedings. For the circumstances of aggravation that I have summarised, I accept that submission.

137. [137]
     I consider it appropriate to order that Mr Lee pay Ms Neil compensation in the amount of $50,000 by way of general and aggravated damages.

The claim for economic loss

138. [138]
     Ms Neil's evidence was that:

• on 17 May 2021, because she did not travel to Queensland, she had to stay in emergency accommodation at the St Alban's Hotel for a total cost of $107.10;^[96]
• on or about 10 June 2021, she received advice from Legal Aid Victoria who referred her to LAQ for advice^[97] and, at that time:

1. –she had low self-esteem, she had nowhere to live, her dream of moving to Queensland was destroyed, she had lost everything she worked for and she had spent a considerable amount of money to travel to Queensland; and

1. –she was admitted into the Bendigo Health Short Term Treatment facility after an attempt of suicide;^[98] and

• as she had given up her accommodation in Victoria and no longer had accommodation in Queensland, she became homeless and had to stay temporarily at the Golden Hills Motel in Bendigo between 19 August 2021 to 29 August 2021 at the cost of $500.00.^[99]

139. [139]
     In Oracle,^[100] Besanko and Perram JJ relevantly stated in respect of economic loss and causation in a sexual harassment case:

184. As far as causation is concerned, the High Court in Medlin v State Government Insurance Commission (1995) 182 CLR 1 (Medlin) considered a claim for economic loss in a case where a plaintiff suffered injuries in a motor vehicle accident and then decided to retire early. The plurality (Deane, Dawson, Toohey and Gaudron JJ) said (at 6-7):

The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of commonsense and experience, properly to be seen as having caused the relevant loss or damage. Indeed, in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision.

185. The plurality said that causation may be established even though the immediate trigger for the loss and damage sustained by the plaintiff was his own decision to retire early. They said (at 10):

The necessary causation between a defendant’s negligence and the termination of a plaintiff’s employment, in the sense that the termination of the employment is the product of an accident-caused loss of earning capacity, can exist notwithstanding the fact that the immediate trigger of the termination of the employment was the plaintiff’s own decision to retire prematurely. If, for example, it appears that a plaintiff’s decision to retire prematurely would not have been made were it not for the fact that the effect of accident-caused injuries is that continuation in employment would subject him or her to constant pain and serious risk of further injury, it may well be that commonsense dictates the conclusion that the plaintiff’s decision to retire prematurely was a natural step in a chain of causation which suffices to designate, for the purposes of the law of negligence, the termination of the employment as a product of those injuries.

186. There is no reason why this analysis should not be applied to a decision to change employment following sexual harassment.

140. [140]
     On 17 May 2021, Ms Neil was travelling by car to the airport to travel to Queensland so as to work for Mr Lee and take up the accommodation with him. At that point, she had no other accommodation in Victoria. The reason Ms Neil did not complete her travel to Queensland on 17 May 2021 was Mr Lee's sexual harassment of her prior to and on that date. That necessitated her need to stay in accommodation at the St Alban's Hotel on 17 May 2021. Commonsense dictates that Ms Neil's decision not to go to Queensland was a natural step in the chain of causation of Mr Lee's sexual harassment of her. For these reasons, the loss Ms Neil suffered for the cost of that accommodation is recoverable from Mr Lee. I find that loss, suffered by Ms Neil, in the amount of $ 107.10, was caused by Mr Lee's contravention of s 118 of the AD Act.

141. [141]
     Ms Neil also claims the cost of accommodation at the Golden Hills Motel in Bendigo between 19 August 2021 to 29 August 2021 in the amount of $500.00.

142. [142]
     Ms Neil's evidence was that she was admitted into the Bendigo Health Short Term Treatment facility after her attempt at suicide. Ms Neil gives no evidence of the dates during which she was admitted into that Facility. Exhibit DN12 to Ms Neil's affidavit is a letter to her from Bendigo Health dated 1 July 2021, which was sent to her at an address in Huntly, Victoria. I assume that this is Ms Neil's girlfriend's house in Huntly, to which Ms Neil refers, in paragraph 56 of her affidavit. Therefore, Ms Neil must have left that Facility before that date. This view is reinforced by the content of the letter which clearly indicates that, as at 1 July 2021, Ms Neil was not a patient at that Facility.

143. [143]
     While Ms Neil does not clearly state where she was living between the date she left that Facility (whenever it was) and 19 August 2021 when she commenced staying at the Golden Hills Motel, she does state that as she had '…gotten rid' of her accommodation in Victoria and no longer had a place in Queensland, she became homeless and had to temporarily stay at the Golden Hills Motel.^[101] I infer from all this evidence that Ms Neil became homeless at a point in time after she left the Bendigo Health Facility and when she could no longer stay with her girlfriend in Huntly.

144. [144]
     On this evidence, I am persuaded that Ms Neil's stay at the Golden Hills Motel from 19 August 2021 was a natural step in the chain of causation of Mr Lee's sexual harassment of her.  I find that loss, suffered by Ms Neil, in the amount of $500.00, was caused by Mr Lee's contravention of s 118 of the AD Act.

Conclusion

145. [145]
     For the reasons I have given, pursuant to s 209(1)(b) of the AD Act, I will order that Mr Lee pay Ms Neil the amount of $50,607.10 as compensation for the loss and damage caused by Mr Lee's sexual harassment of Ms Neil. Mr Lee must pay this amount within 28 days of today.

Order

146. [146]
     I make the following order:

Pursuant to s 209(1)(b) of the Anti-Discrimination Act 1991, the Respondent is to pay the Complainant the amount of $50,607.10 as compensation within 28 days of 24 April 2024.