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CITE

Unreported Judgment

JF v Oishi Teppanyaki & Café Pty Ltd[2025] QIRC 209Hartigan DP
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JF v Oishi Teppanyaki & Café Pty Ltd[2025] QIRC 209

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	JF v Oishi Teppanyaki & Café Pty Ltd & Anor [2025] QIRC 209
PARTIES:	JF (Complainant) v Oishi Teppanyaki & Café Pty Ltd (First Respondent) AND Ebrahim-Goder, Moosa (Second Respondent)
CASE NO:	AD/2021/2
PROCEEDING:	Referral of Anti-Discrimination Complaint
DELIVERED ON:	8 August 2025
HEARING DATE:	6 June 2025
MEMBER:	Hartigan DP
HEARD AT:	Brisbane
ORDERS:	Pursuant to s 191(1) of the Anti-Discrimination Act 1991, the Complainant's identity is prohibited from being disclosed in these proceedings, being matter number AD/2021/2. Pursuant to r 97 of the Industrial Relations (Tribunals) Rules 2011, the Complainant's identity will be de-identified in these reasons. Pursuant to s 451(2)(c) of the Industrial Relations Act 2016, the file held in the Industrial Registry for matter number AD/2021/2 is to be sealed and withheld from release, search or copy unless leave from the Commission is granted. Pursuant to s 209(1)(b) of the Anti-Discrimination Act 1991, the Second Respondent must pay, within 28 days, compensation to the Complainant comprising of: general damages for sexual harassment in the sum of $140,000; and aggravated damages in the sum of $10,000. The Second Respondent must pay, within 28 days, the Complainant's costs fixed in the sum of $26,434.
CATCHWORDS:	HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – where there is a referral of a complaint from the Queensland Human Rights Commission – where the Complainant alleged sexual harassment in the area of work – where the First Respondent was the restaurant where the Complainant worked – where the Second Respondent was the Complainant's employer – where the Second Respondent requested sex from the Complainant during a shift – where the Second Respondent touched the Complainant without her consent – where the Respondents have not appeared in these proceedings – whether the Respondents have been served – whether the Commission can make a final decision where the Respondents do not participate in the proceedings – whether the Second Respondent's conduct contravened the Anti-Discrimination Act 1991 – whether the conduct included a sexual advance, a request for sexual favours or other conduct of a sexual nature – whether the conduct was unwelcome – whether a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated by the conduct – whether an order for general and aggravated damages should be awarded – the sexual harassment complaint is substantiated – order for general and aggravated damages made EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – PARTICULAR CASES – where Complainant seeks suppression of her identity – where the Respondents have not participated in these proceedings – whether the Commission is of reasonable opinion that suppression is necessary to protect the Complainant's work security, privacy or any human right – application for suppression order granted PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SERVICE – PERSONAL SERVICE – where the Complainant has personally served the Respondents – where the Respondents have not participated in the proceedings – whether the Respondents have been properly served with the court documents – whether the Respondents have been served with the Notice of Listings – determined that the Respondents have been properly served
LEGISLATION:	Anti-Discrimination Act 1991 (Qld), s 117, s 118, s 119, s 120, s 132, s 133, s 164A, s 166, s 174B, s 191, s 204, s 209 Criminal Code Act 1899 (Qld), sch 1 Evidence Act 1977 (Qld), s 79, s 103ZZL, s 103ZZN Industrial Relations Act 2016 (Qld), s 451, s 539, s 548, s 580, sch 2, sch 5 Industrial Relations (Tribunals) Rules 2011 (Qld), r 6, r 24, r 25, r 28, r 29, r 45, r 97
CASES:	Briginshaw v Briginshaw (1938) 60 CLR 336 Cassell & Co Ltd v Broome [1972] AC 1027 Clarke v Nationwide News Pty Ltd (2012) 201 FCR 389 Ewin v Vergara (No 3) (2013) 238 IR 118 Golding v Sippel and The Laundry Chute Pty Ltd [2021] ICQ 14 Golding v Sippel and The Laundry Chute Pty Ltd [2021] QIRC 74 Herron v Attorney-General (NSW) (1987) 8 NSWLR 601 House v The King (1936) 55 CLR 499 Hughes (t/as Beesley and Hughes Lawyers) v Hill (2020) 277 FCR 511 Lamb v Cotogno (1987) 164 CLR 1 Neil v Lee [2024] QIRC 93 R v O'Dempsey (No 3) [2017] QSC 338 Richardson v Oracle Corporation Australia Pty Ltd (2014) 223 FCR 334 Scott v State of Queensland & Ors [2019] QIRC 115 Tamawood Ltd v Paans [2005] QCA 111 Taylor v August and Pemberton Pty Ltd (2023) 328 IR 1 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
APPEARANCES:	Mr M.E. Holmes instructed by Logan Law for the Complainant No appearances for the First and Second Respondents

Table of Contents

Introduction	[1]
Application for Suppression Order	[8]
Consideration	[15]
The Respondent's Conduct During the Proceedings – Failure to Participate	[21]
Relevant provisions for service – was the Respondent served with relevant documents and the notice of listing?	[26]
The Complaint of Sexual Harassment	[48]
Sexual harassment	[49]
Burden of proof	[59]
JF's Evidence	[62]
Section 79 of the Evidence Act – Convictions as Evidence in Civil Proceedings	[90]
The Medical Evidence	[95]
Dr Karin Fuls – consultant psychiatrist	[95]
Dr Ghazala Watt – consultant psychiatrist	[98]
Ms Tracey Mousset – psychologist	[106]
Consideration of the Evidence	[107]
Factual Findings	[110]
Does the conduct fall within s 199(a)-(d) of the AD Act?	[110]
Do the findings of fact support a conclusion that JF was sexually harassed by the Respondent?	[114]
Did the Respondent engage in the conduct in circumstances where a reasonable person would have anticipated the possibility JF would be offended, humiliated or intimidated by the conduct?	[118]
Damages – Compensation for Non-Economic Loss for Pain and Suffering	[124]
Consideration – general damages	[143]
Consideration – aggravated damages	[162]
Costs	[175]
Power to award costs	[175]
Consideration	[180]
Whether a party to the proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding	[189]
The nature and complexity of the proceeding	[193]
The relative strengths of the claims made by each of the parties to the proceeding	[198]
The financial circumstances of the parties to the proceeding	[201]
Discretion enlivened	[204]
The quantum of costs	[209]
Orders	[217]

Reasons for Decision

Introduction

[1]
The Anti-Discrimination Act 1991 (Qld) ('AD Act') prohibits a person from sexually harassing another person^[1] in the circumstances described by s 119 of the AD Act.

[2]
The Complainant ('JF') claims that she was sexually harassed by the Second Respondent, Mr Moosa Ebrahim-Goder ('the Respondent'), in contravention of the AD Act and seeks remedies by way of compensation for non-economic loss for pain and suffering. JF also seeks her costs. The conduct relied on by JF in bringing the complaint of sexual harassment is both verbal and physical conduct by the Respondent.

[3]
JF commenced employment as a waiter at Oishi Teppanyaki & Café Pty Ltd ('Oishi') in approximately 2018. Sometime after the commencement of her employment, Oishi was purchased by the Respondent and others, and the business began trading under the name "King of Grill" ('the Restaurant'). The business was trading as "King of Grill" at the time of the alleged conduct. The evidence is that in addition to owning the Restaurant, the Respondent also worked in the Restaurant with JF and other staff.

[4]
JF initially contended that Oishi was vicariously liable for the alleged contravention of the AD Act by the Respondent by operation of s 133 of the AD Act. However, Oishi has now been deregistered,^[2] and JF no longer pursues a remedy against it. Consequently, the relief sought in this proceeding is against the Respondent only.

[5]
Following the alleged conduct, JF attended on a police station and made a complaint to the Queensland Police Service with respect to the alleged conduct of the Respondent. Subsequent to the filing of that complaint, the Respondent was charged with several offences under the Criminal Code Act 1899 (Qld) sch 1 ('Criminal Code'). Relevantly, the Respondent entered a plea of guilty to, and was convicted of, one charge of sexual assault^[3] in the Beenleigh District Court with respect to the complaint.^[4]

[6]
As will be considered further below, the Respondent has not participated in these proceedings.

[7]
The following issues will be determined in these reasons:

the application for a suppression order;

determining the complaint in the absence of the Respondents;

the sexual harassment complaint; and

the application for a costs order.

Application for Suppression Order

[8]
At the oral hearing on 6 June 2025, JF's legal representative sought for JF's name to be supressed from publication in the final decision.^[5]

[9]
JF relies on the "nature of the matters" as the ground in support of the application.^[6] JF, in seeking the order, bears the onus of demonstrating that circumstances exist which would justify the making of the proposed suppression order.

[10]
Section 191(1) of the AD Act provides that if the Tribunal is of the reasonable opinion that the preservation of anonymity of a person who has been involved in a proceeding under the AD Act is necessary to protect the work security, privacy or any human right of the person, the Tribunal may make an order prohibiting the disclosure of the person's identity. Section 191(2) of the AD Act provides that a person must comply with an order made pursuant to s 191(1) and the provision is a civil penalty provision.

[11]
Similarly, the Industrial Relations Act 2016 (Qld) ('IR Act') empowers the Commission to issue orders with respect to the modification of a document before publication. In this respect, s 451(2)(c) of the IR Act provides for the power of the Commission to make any order it considers appropriate. Whilst r 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('IR Rules') provides the power to modify a document before publication in a way that does not affect the essence of the document.

[12]
Section 580 of the IR Act provides the Commission with powers regarding the use of confidential material tendered into evidence. Section 580(5)(b) provides that the Commission may direct that the evidence given, records tendered, or things exhibited in proceedings for an industrial cause^[7] be withheld from release or search. Such a direction may prohibit the publication, release or search absolutely, or except on conditions ordered by, relevantly, the Commission.^[8]

[13]
The Evidence Act 1977 (Qld) ('Evidence Act') also places limits on the publication of information in relation to sexual offences^[9] which states:

103ZZN Offence to publish identifying matter in relation to complainant

A person must not publish identifying matter in relation to a complainant.

Maximum penalty—

for an individual—100 penalty units or 2 years imprisonment; or
for a corporation—1,000 penalty units.

Note—

If a corporation commits an offence against this provision, an executive officer of the corporation may be taken, under section 103ZZZR, to have also committed the offence.

If the complainant is a complainant against whom a sexual offence is alleged to have been committed, subsection (1) applies only if a person has been charged with the sexual offence.

Subsection (1) does not apply if the complainant is deceased.

[14]
A "complainant" in the context of s 103ZZN of the Evidence Act means a person to whom a sexual offence has been, or is alleged to have been, committed.^[10]

Consideration

[15]
The Respondent did not attend the hearing on 6 June 2025 and, consequently, has not been heard with respect to this application.

[16]
In considering JF's request, I have had regard to the principle of open justice which operates, inter alia, as an overarching principle guiding judicial decision making and various aspects of procedure.^[11]

[17]
The evidence in this matter details the personal circumstances of JF at the time of, and subsequent to, the alleged conduct including with respect to the details of the alleged incident and her medical information relevant to the determination of this matter. As will be discussed further below, the evidence also established that JF is a complainant with respect to a sexual assault to which the Respondent has been convicted. These matters support a conclusion that the subject matter of the evidence affects JF's privacy.

[18]
Finally, the Commission has also had regard to s 103ZZN of the Evidence Act and notes that the purpose of that provision is to protect from publication the identifying information in relation to a complainant. As noted above, the Respondent pleaded guilty to one count of sexual assault in contravention of s 352 of the Criminal Code. It follows that JF is a complainant within the meaning of s 103ZZN of the Evidence Act and, accordingly, has the protection afforded from the Evidence Act of the prohibition on the publication of her name.

[19]
The evidence in this matter, as summarised above, is such that it affects the privacy of JF. Further, JF is a complainant with respect to a sexual assault^[12] and, consequently, information identifying JF is prohibited from being published.

[20]
Accordingly, pursuant to s 191(1) of the AD Act, it will be ordered that the Complainant's identity be prohibited from being disclosed in these proceedings. In order to give effect to that order, it will be further ordered that the name of JF be de-identified in this decision and, further, the Commission's file in this proceeding is to be withheld from release, search or copy in order to prevent JF from being identified from those documents.

The Respondent's Conduct During the Proceedings – Failure to Participate

[21]
The second issue to be determined is whether the Commission may determine the complaint without the Respondent's participation and appearance in the proceedings.

[22]
Rule 45 of the IR Rules sets out the powers of the Commission in circumstances where a party fails to attend or comply with a directions order of the Commission as follows:

45 Failure to attend or to comply with directions order

This rule applies if—

a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and

the party fails to attend the hearing or conference.

This rule also applies if—

a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and

the party fails to comply with the order.

The court, commission or registrar may—

dismiss the proceeding; or

make a further directions order; or

make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or

make orders under paragraphs (b) and (c).

[23]
In Scott v State of Queensland & Ors,^[13] Vice President O'Connor stated in respect of the discretion conferred by r 45 of the IR Rules that it must be exercised judicially.^[14]

[24]
Section 539 of the IR Act provides for powers incidental to the exercise of the Commission's jurisdiction including that the Commission may hear and decide an industrial cause in the absence of a party or person who has been called to attend or served with a notice to appear at the proceedings.^[15]

[25]
"Industrial cause" is defined to include a work related matter under the AD Act.^[16]

Relevant provisions for service – was the Respondent served with relevant documents and the notice of listing?

[26]
Part 2, Division 2, Subdivision 3 entitled "Service" of the IR Rules provides for the means by which service may be affected.

[27]
Rule 24(1) of the IR Rules which falls within sub-div 3, provides, inter alia, that 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.

[28]
The time for service is set out in r 25 of the IR Rules as follows:

25 Time for service

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—

the return day stated in the document; or

the day on which it is proposed to apply.

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

[29]
Relevant to the circumstances of this matter, the service of documents is provided for in r 28 of the IR Rules as follows:

28 Service of documents

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

personal service under rule 29;

…

if the person has given–

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

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

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.

…

In this rule–

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

the person's address for service; or

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

the individual's last known place of business or residence; or

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

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

[30]
Further, r 29 of the IR Rules sets out the means by which personal service may be performed as follows:

29 How personal service is performed

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.

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.

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

[31]
JF's legal representatives have executed and filed several affidavits detailing various documents filed by JF, directions orders issued by the Commission and Notice of Listings issued by the Commission that have been served on the Respondent.^[17] The affidavits detail the manner in which the service took place including, but not limited to, the engagement of Rumpoles Legal Services, a process server, to personally serve the Respondent.

[32]
Having read each of the affidavits,^[18] I am satisfied that:

the Respondent was personally served on the occasions set out in the affidavits; and

that on those occasions, the Respondent was served with documents filed on behalf of JF including, relevantly, directions orders, the referral, and other filed documents.

[33]
Following the service of those various documents on the Respondent, the Respondent has not filed any documents in this proceeding including in compliance with any directions order or at all. Further, the Respondent has not attended any hearings listed with respect to this matter.

[34]
On 4 June 2025, JF filed a further affidavit of service executed by a process server which stated, inter alia, that on 3 June 2025, he personally served the Respondent with the Notice of Listing for the hearing on 6 June 2025 and various other documents including JF's written submissions.

[35]
It is accepted that the Respondent received these documents and the Notice of Listing for the hearing on Friday, 6 June 2025 because the Respondent wrote to the Industrial Registry on Monday, 3 June 2025 at 10.00 am by email correspondence as follows:

I'm writing to inform you that I have been served a notice to appear on 06/06/25.

These documents were handed to me today at 9am, on the 03/06/25

I have not been given adequate time to review these documents and to consult with my legal representatives.

I would need an extension to properly review this.

Please let me know how we can proceed with this matter.

Thanking you.

Moosa Ebrahim-Goder

[36]
In response, at 11.20 am, the Commission issued a Notice of Listing to the parties sent by email correspondence notifying the parties that, following receipt of the Respondent's email correspondence, the proceedings had been listed for a telephone mention on Thursday, 5 June 2025 at 2.30 pm.

[37]
On 3 June 2025, at 11.39 am, the Industrial Registry sent email correspondence requesting the best telephone number for the parties using the email provided by the Respondent in his email correspondence sent earlier at 10.00 am.

[38]
On 4 June 2025, at 4.30 pm, the Industrial Registry, having received no response to its' email of 3 June 2025, emailed the Respondent requesting his contact details for the telephone mention.

[39]
On 5 June 2025, at 9.48 am, the Industrial Registry, having received no response to its' email of 4 June 2025, again sent an email to the parties requesting the Respondent's contact details for the mention listed for that afternoon. It was stated in the email that, "if [the Respondent] do[es] not attend the telephone mention today, currently the hearing is still listed for 6 June 2025 at 10.00am".

[40]
The telephone mention proceeded at 2.30 pm on 5 June 2025, however, the Respondent did not attend the mention.

[41]
Following the telephone mention at 2.30 pm on 5 June 2025, the Industrial Registry sent correspondence to the email addresses of the parties as follows:

Dear Mr Ebrahim-Goder,

We refer to the above matter.

Following receipt of your correspondence of 3 June 2025, the Industrial Registry listed the matter for telephone mention at 2.30pm today before Deputy President Hartigan.

A notice of listing was emailed to you on 3 June 2025.

Several emails were sent to you on 4 June and 5 June 2025 requesting your telephone contact details for the mention. No contact details were provided by you and you failed to attend the mention of the matter.

The hearing of the complaint remains listed before the Queensland Industrial Relations Commission on Friday, 6 June 2025 at 10.00am at Level 22 66 Eagle St, Brisbane City QLD 4000.

You are placed on notice that if you fail to attend the hearing on Friday, 6 June 2025, the complaint may be heard and determined in your absence.

…

[42]
There is no evidence before the Commission that the Respondent has taken any steps to comply with any directions orders made by this Commission. There is no indication that the Respondent has made any inquiries with the Industrial Registry or JF at any point during these proceedings, except for the one email correspondence he sent on Monday, 3 June 2025 prior to the hearing on Friday, 6 June 2025. There was no further correspondence from the Respondent after that date even after several attempts by the Industrial Registry to contact him after listing a telephone mention for 5 June 2025.

[43]
I am satisfied that the affidavit filed by JF's legal representative identifies that the Respondent has been personally served in accordance with the requirements of the IR Rules. This personal service includes the most recent Notice of Listing for the hearing on 6 June 2025.

[44]
The Respondent's communication of 3 June 2025 to the Industrial Registry by email correspondence supports such a conclusion. Having regard to the history outlined above, that email correspondence is seemingly the only attempt the Respondent has taken to engage in these proceedings.

[45]
Consequently, I am satisfied that the Respondent was aware of the hearing listed on 6 June 2025 at 10.00 am. At the commencement of the hearing on 6 June 2025, the Respondent's name was called three times. The Respondent did not appear at the hearing.

[46]
For the reasons provided above, I am satisfied that the history of the proceedings establishes that the Respondent had notice of the proceedings and has not taken any proper or substantive step to participate in the proceedings. Further, I am satisfied that the Respondent was notified of the hearing scheduled for 6 June 2025. The Notice of Listing for the hearing of 6 June 2025 stated that the Respondent was required to attend the hearing. The Respondent failed to do so.

[47]
Section 539(g) of the IR Act relevantly provides that, except as otherwise provided for by the IR Act or the IR Rules, the Commission may hear and decide an industrial cause in the absence of a party. On that basis, I consider that there is a power for the Commission to proceed in the absence of the Respondent in the circumstances of this proceeding.

The Complaint of Sexual Harassment

[48]
By operation of ss 164A and 174B of the AD Act, the Commission has jurisdiction to hear the anti-discrimination complaint.

Sexual harassment

[49]
Chapter 3, Part 2 of the AD Act provides for the prohibition of sexual harassment.Section 117(1) of the AD Act provides that one of the purposes of the AD Act is to promote equality of opportunity for everyone by protecting them from sexual harassment. The AD Act seeks to achieve this purpose by:

prohibiting sexual harassment; and

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

using the agencies and procedures established under ch 7 to deal with the complaint.^[19]

[50]
Section 118 of the AD Act provides for the prohibition of sexual harassment as follows:

118 Sexual Harassment

A person must not sexually harass another person.

[51]
Section 119 of the AD Act provides for the meaning of "sexual harassment" as follows:

119 Meaning of sexual harassment

Sexual harassment happens if a person—

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

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

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

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—

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

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

Examples 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

[52]
Section 28A of the Sex Discrimination Act 1984 (Cth) ('SDA') is in similar terms to s 119 of the AD Act, in so far as it provides the meaning of sexual harassment by identifying the types of conduct that amounts to sexual harassment and introduces the concept of a reasonable person test.

[53]
In Hughes (t/as Beesley and Hughes Lawyers) v Hill ('Hughes'),^[20] Perram J set out the three elements to s 28A of the SDA as follows:

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

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

Thirdly, once it be established that there was conduct of a sexual nature towards another and that the conduct was unwelcome, the provision imposes an objective delimitation on the provision's ambit. The "circumstances" must be such that a reasonable person would have anticipated the possibility that the person allegedly harassed would be offended, humiliated or intimidated by the conduct. The "circumstances" are defined broadly in s 28A(1A) and include, importantly for this case, the relationship between the harasser and the harassed.^[21]

[54]
With respect to the objective standard imposed by s 28A of the SDA, Perram J continued as follows:

The objective standard imposed by the provision does not relate to the first two issues. The objective question is not whether a reasonable person would regard the conduct as being sexual in nature (as defined) for that is a threshold question the Court determines for itself. Nor is the objective standard applied to the question of whether the person allegedly harassed ought to have regarded the conduct as unwelcome, for that is an issue to be determined by reference to the actual state of mind of the person. Instead, the objective standard is applied to a new issue — that of whether a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

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.

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.^[22]

[55]
In adopting an approach similar to that set out in Hughes, s 119(a)-(d) of the AD Act requires the Commission to determine if any of the identified forms of conduct occurred. Such a determination involves a factual finding as to whether the conduct described in s 119(a)-(d) has been established on the evidence.

[56]
If the identified conduct is established, it also requires a finding that the conduct must either be "unsolicited" for the purposes of s 119(a)-(b) or "unwelcome" for the purpose of s 119(d) of the AD Act.

[57]
Finally, once it has been established that the conduct was conduct as described in s 119(a)-(d) of the AD Act, a factual determination must be made with respect to whether the person engaging in the conduct did so with the intent of offending, humiliating or intimidating^[23] or whether if the person engaging in the conduct did so in circumstances where a reasonable person would be offended, humiliated or intimidated by the conduct.^[24] The determination with respect to s 119(f) requires the application of an objective test. The circumstances to be taken into account in determining the objective test may include consideration of those matters referred to in s 120 of the AD Act.

[58]
Section 120 of the AD Act provides for the meaning of "relevant circumstances" as follows:

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—

the sex of the other person; and

the age of the other person; and

the race of the other person; and

any impairment that the other person has; and

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

any other circumstance of the other person.

Burden of proof

[59]
At the relevant time, s 204 of the AD Act provides that the onus is on the complainant in a matter to prove, on the balance of probabilities, that the Respondent contravened the AD Act as follows:

204 Burden of proof — general principle

It is for the complainant to prove, on the balance of probabilities, that the respondent contravened the Act, subject to the requirements in sections 205 and 206.

[60]
The standard of evidence, as is relates to the balance of probabilities, was summarised by Dixon J in the case of Briginshaw v Briginshaw,^[25] as follows:

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.^[26]

[61]
JF made a number of allegations regarding the Respondent's conduct towards her on 13 August 2019 that she claims constituted sexual harassment within the meaning of s 119 of the AD Act.

JF's Evidence

[62]
JF was born in [redacted] but moved to Australia as an adult with her then partner and two children. Upon separating from her partner, JF became the sole provider for her children and herself.

[63]
In 2015, JF moved to Brisbane from interstate and commenced looking for work, although it took a while for JF to find employment. JF initially worked at various businesses including a children's play centre but eventually found consistent work in the hospitality sector.

[64]
JF described that after finding employment at the Restaurant she was able to provide for her children and did not need to rely on her former partner for child support. She stated that this made her feel independent and proud of herself.^[27]

[65]
It was at this stage (approximately one year before the alleged conduct took place) that JF commenced working at Oishi. Whilst JF was employed there was a change in ownership and re-branding of the business.

[66]
The new owner was the Respondent. The Respondent and his family worked in the business. In her evidence, JF described her relationship with the Respondent and his family as follows:

Okay. All right. And what was your relationship – what was the relationship like with Mr Goder?---It was good. I was – um – it was a family business and so I – when we were at work everyone was friends – um – I was close with his wife and his kids – um – yeah, we all – it was [indistinct].

Okay.

HER HONOUR: When you say it was a family business, did – Mr Goder is the first – the respondent in this matter. Did his family work in the business as well?---Yeah.

So when you say you were close with his wife and his children did they work - - -?---Yeah.

- - - with you at the restaurant?---Yeah.^[28]

[67]
On the day of the incident JF was scheduled to work a split shift. JF and the Respondent were the only two workers rostered to work that day. JF described having a feeling of not wanting to go to work on the day of the incident. JF's evidence in this regard was as follows:

MR HOLMES: Why was that?---Because there had been, like – there had been – he had said to me once, "You're pretty dumb or naive, aren't you?" And then he said, "So if somebody was interested in you you wouldn't know." And I was, like – and then he goes – and I said, "Oh, well, I don't know." And he goes, "Well, do you think anyone's interested in you?" And I said, "No." And then he would – um – like, stand close, or – to me. And he – it just made me feel uncomfortable and because I'm a [redacted] citizen I had an option, I either move home, or I had to find another job. And I had two kids. I was a single mum and I had – so I had to turn up for work. And the time I had worked before that there was someone else, there was a guy named Vish. We called him Vish but it was – his name was Vishnu. And he had – Moosa said, "You don't need to come in on this day. I'll just work with [JF]." And I said – turned around to Vish and I said, "Can you not? Can you work that day?" And he was, like, "No, I can't. I can't work that day." And I was, like – and I asked [indistinct] so much. I asked him and I said, "Can you please" – "I don't want to work by myself." And he- But again he couldn't. And, I mean, he didn't know why. So I knew he --- and I was saying to my friend on the way that day that I didn't want to be there. I didn't want to go and how uncomfortable I felt. And then they had just said, "You know what, it's probably just nothing. You're just, like, being overcautious. You're fine." Um – so I remember vividly walking through the door of the restaurant and I remember calling out and I remember – sorry for my language - - -

…

- - - like my heart falling out my arse when I went – I called out and he replied. And I was hope – it wasn't Vish's voice – um – and – yeah, I just told myself, "I've got to get through. I've just got to get through today and I'll be fine…^[29]

[68]
JF's evidence was that she commenced working the morning shift and following the morning shift there was a scheduled two-hour break and then the second shift was due to commence for the dinner service. It was JF's intention to not stay at the Restaurant during the break between shifts, but, rather, to visit a friend who lived around the corner from the Restaurant.

[69]
However, at the end of the first shift, the Respondent asked JF if she wanted to have a drink. She responded that she was going to see her friend, however, the Respondent persisted and asked for her to stay and have a drink as he said he needed someone to talk to.

[70]
JF's evidence was that at some time in the weeks leading up to the incident she had spoken to the Respondent's wife who had advised JF that she thought the Respondent was depressed and needed someone to talk to. JF's evidence was that she agreed to stay and have a drink with the Respondent. JF stated that her reasoning for doing so was that she felt that she should stay to talk to him as his wife had said that he needed someone to talk to.

[71]
The Respondent produced a bottle of Jack Daniels and commenced drinking and talking to JF. The conversation included the Respondent discussing his relationship with his wife.

[72]
Just prior to the second shift commencing the Respondent said to JF in words to the following effect, "JF you're a straight up person. And I know if you don't want to do something you would say it... will you have sex with me?".

[73]
JF states that she responded by saying, "no, absolutely not". She says that the Respondent then asked her why and she responded by saying to him, "because you're married". Following this exchange the Respondent and JF commenced working the dinner service shift.

[74]
Towards the end of the dinner service shift and after the customers had left, JF alleges the following occurred:

Approximately an hour later, the second respondent grabbed me from behind. I froze, trying to ignore him, thinking he would just leave me alone. The second respondent started to rub my buttocks and vagina on the outside of my pants.

After the evening service had finished, unbeknownst to me, the second respondent had locked the front and back doors of the restaurant.

The second respondent called me over and he suddenly grabbed me and started kissing me. I told the second respondent to stop and that he needed to stop.

In an attempt to leave the premises, I told the second respondent that I needed to go outside for a smoke, and I grabbed my bag. However, I found that the doors were locked, and I could not get out. The second respondent told me that I could smoke inside.

The second respondent then kissed me again and tried to pull down my blouse and kiss my breast. I tried to get away from the second respondent but then he spun me around and pushed me over the bench. The second respondent then put his hand down my pants and touched my vagina.

The second respondent then pulled me down onto his [lap]. I was trying to get up, but I could not get away and was pleading with the second respondent to stop and I told him he was making me uncomfortable. The second respondent put his hand in my pants again and penetrated my vagina with his fingers.

I then managed to get away from the second respondent to which he then asked "just give me one thing". The second respondent then pulled down my pants to expose my buttocks and kissed my buttocks.

The second respondent then let me go and I moved to the front of the store.

I was in fear of my safety and tried to stay as calm as I could, thinking that if I do something I might get seriously hurt.

I continued to clean up the restaurant.

Whilst doing this, the second respondent continued to talk about sex and saying things that I turned him on so much.

I was eventually able to leave the restaurant just before 9:30pm.^[30]

[75]
During her evidence-in-chief, JF provided the following additional evidence regarding the incident:

What other things did he try to do to you?---I remember thinking "ew" and he had like this fat deposit thing and I remember thinking, "oh, I don't want to touch that." I remember him undoing my pants and sticking his hand in my pants. I remember – I remember him saying something about a wet vagina. I remember him saying – when he finally understood that I wanted to go, and he said, "I just want one thing." And he pulled my pants down and turned me around. And, like, kissed – like, put his hands in my arse. Like, in between my arse cheeks. I can't – those are the main things I can think about it – of then. I remember the smell. The fire was going and the grill. I remember thinking, "Oh, if I stick my hand in there maybe he'll let me go to the hospital." I remember thinking I could just – if he could just go away for a couple of minutes and I could text someone to come. Yeah.^[31]

[76]
JF also provided additional details in her evidence about what the Respondent said to her immediately following the physical conduct by the Respondent as follows:

And was there any further conversation between you and Mr Goder whilst that was happening?---Um – yes. I remember him – I remember standing by the sink and he said to me – he said something sexual. And he said something about my stomach. Like, "Why does your stomach look like that? My wife had five kids and her stomach doesn't look like that." He – no, I can't remember what he said.^[32]

[77]
The evidence of JF is that immediately upon finishing work and leaving the Restaurant she telephoned a friend and advised them of the incident. In the days following, JF spoke to family members about the incident who arranged for her to attend on a lawyer and subsequently the police station where JF made a complaint about the incident.

[78]
JF did not return to work at the Restaurant following the incident.

[79]
As noted above, the Respondent was subsequently charged with several offences but pleaded guilty to one count of sexual assault arising out of the incident. During the sentencing process, JF was requested to provide a document akin to a victim impact statement which was tendered into evidence in this proceeding.^[33]

[80]
JF described herself, prior to the incident as being "hardworking, confident, happy, sociable and reliable". JF said that she had thought that if you were kind and honest with people that they would then treat you in the same way. She states that this perspective has been taken away from her. The victim impact statement details the impact JF says the incident had on her as follows:

Simple things like going to the mall, food shopping or even what was my happy place, the gym are now dangerous places. I am a mother and now my children have to "babysit" me to do the grocery shop or go to the hairdresser. I'm an adult that has a panic attack in the middle of the supermarket.

The symptom of the panic attacks. Sweats, breathlessness, overwhelming and tears. I find talking to strangers or small talk difficult.

I also am hyper vigilant I am always looking for trouble to avoid it. It becomes overwhelming, I always leave early before the panic attacks come.

The feeling is like pins and needles all over the body, the feeling like your scared to death but it's not for a split second but for hours.

Intrusive thoughts any time of day or night. I have vivid thoughts of the incident. Frequently I wake with scratches on my body my face, Night sweats

Daily symptoms include

Nightmares

Overwhelming feelings

Anxiety

Depression

Pins and needles all over

Intrusive thoughts

Not being able to interact with men at all

No sex drives

I don't see friends' family

Isolation

The above has also impacted on my relationship at home a lot of the time I do not want to be touched, my kids overwhelm me I want to isolate my self [sic] all of the time^[34]

[81]
Of the list of daily symptoms described in the victim impact statement, JF says, at the time of giving evidence, she still experiences all of them except for the nightmares.

[82]
In her evidence, JF referred to losing her financial independence as a consequence of not returning to work at the Restaurant and was required to request that her former partner assist with child support payments.

[83]
JF also gave evidence of the impact on her personal relationships including those with her current domestic partner and her children. JF says that she relies heavily on her children and partner to assist her in daily activities. She relies on her partner to do the grocery shopping, pick up the children from school and take them to after-school activities. The tenor of JF's evidence is that she finds going out in public or social activities stressful and that she either avoids those activities or relies on her partner or children for support if she does engage in those activities.

[84]
JF described herself as being easily overwhelmed in social settings and even when talking to close family members. She states, in particular, that her relationships with males, including family members, have been impacted since the incident and she describes being mistrustful of males. Her evidence was that this was in stark contrast to her behaviour prior to the incident. She described herself as formerly being social and engaged with friends and family.

[85]
JF also described a reluctance to seek medical attention with respect to certain gynaecological concerns.

[86]
JF described attending on medical practitioners for treatment of the psychological impact of the incident. JF expresses a view that her treatment has assisted in the improvement of some of her symptoms. Her evidence was as follows:

So just public places in general, or just - - -?---Yeah. It has gotten a lot – ever since – I would say the EMDR it's gotten better. I don't – I used to have full-blown panic attacks. I would be crying. I would break out in a rash. I would be – I wouldn't be able to breathe. I would – I would have – I would have to leave. Now it's just the overwhelm. It's the overwhelm. There's so many people. If somebody – I can't look who's around me and what's going on. And if somebody talks to me at the same time, that's overwhelming to the point I get anxious and angry.^[35]

[87]
JF has now returned to employment, although her evidence is that she finds it difficult to work with male colleagues. She prefers working in a female-dominated workplace.

[88]
JF also gave evidence that she has recently started back at the gym and now walks her dog by herself.

[89]
As noted above, since the incident JF has re-partnered. Her evidence is that the effects of the incident continue to impact on her intimate relationship with her partner.

Section 79 of the Evidence Act – Convictions as Evidence in Civil Proceedings

[90]
It is submitted on JF's behalf that the evidence of the Respondent's conviction for sexual assault^[36] is to be taken as proof that the Respondent committed the acts and possessed the state of mind which at law constitutes that offence, unless the Respondent proves to the contrary.

[91]
Section 79(2) of the Evidence Act provides that in any civil proceeding the fact that a person has been convicted by a court of an offence is admissible in evidence for the purpose of proving, where to do so is relevant to any issue in the proceeding, that the person committed that offence.

[92]
Section 79(3) of the Evidence Act further provides that in any civil proceeding in which by virtue of this section a person is proved to have been convicted by a court of an offence, that person shall, unless the contrary is proved, be taken to have committed the acts and to have possessed the state of mind (if any) which at law constitutes the offence.

[93]
As previously noted, the Respondent was convicted of sexual assault in contravention of s 352 of the Criminal Code in relation to a complaint made by JF. Accordingly, it has been established^[37] that the Respondent committed that offence and is taken to have committed the acts which constituted the offence.

[94]
Those matters are a relevant consideration in this proceeding, particularly in the absence of the Respondent. The fact of JF making a complaint and the circumstances of the Respondent being convicted of the offence of sexual assault is consistent with JF's evidence before the Commission.

The Medical Evidence

Dr Karin Fuls – consultant psychiatrist

[95]
Dr Fuls prepared three reports for JF's WorkCover claim and also gave evidence before the Commission.

[96]
Dr Fuls' reports were tendered into evidence^[38] and, relevantly, her report dated 18 February 2020 included the following passages:

On mental status examination, [JF] is a neatly presented young lady who has an anxious and at times tearful affect. She describes an anxious mood which at times is low. She has an organised and goal-directed thought form. In her thought content there is significant evidence of trauma-related intrusive memories. She denies the presence of any hallucinations or delusions. [JF] has good insight and has the capacity to consent to treatment.

…

In my opinion, [JF] presents with a severe post-traumatic stress disorder which meets the DSM-5 criteria for post-traumatic stress disorder.

…

The work-related condition is not an aggravation of any pre-existing condition.^[39]

[97]
Dr Fuls also gave evidence before the Commission. Dr Fuls confirmed that, as a consequence of what was described as the "assault" by the Respondent, JF was diagnosed with post-traumatic stress disorder ('PTSD').

Dr Ghazala Watt – consultant psychiatrist

[98]
Dr Watt prepared a report and also gave evidence before the Commission.

[99]
Dr Watt's report was tendered into evidence.^[40] Dr Watt took a detailed history from JF which largely accords with the evidence JF gave to the Commission.

[100]
Relevantly, an extract of the history taken from JF, with respect to a component of the incident, is as follows:

She reported she was concerned "how do I get out"? She reported she could not think of anything. She reported she told him "I need a smoke". She reported at this stage she realised that Moosa has locked the whole front door. She said "my heart fell out of my ass". She reported she was frightened. She felt endangered.^[41]

[101]
Dr Watt provided an overview of JF's treatment as follows:

CURRENT TREATMENT

According to [JF], she has received psychiatric and psychological intervention in the context of the incident that occurred in 2019. She reported she was receiving psychological intervention which ended mid 2020. She reported she was seeing a psychiatrist. Her last appointment was in around February/March 2021. She reported the psychiatrist has discharged her as she felt "I was stationary". She reported she continues to use the strategies that she has been provided. She reported she has improved however improvement had plateaued. It did not improve any further. She reported she received EMDR. She reported she started seeing psychiatrist in the early months of 2020. She reported she is unable to remember intervention she has received from her psychiatrist however she reported "it helped" but she does not remember the sessions. She reported she was taught mindfulness as she was having anxiety attacks. She reported she was provided education and EMDR. She reported she is currently taking venlafaxine 150 mg prescribed by her psychiatrist for posttraumatic stress disorder.^[42]

[102]
Finally, Dr Watt provided an opinion with respect to JF's diagnosis and prognosis as follows:

SUMMARY AND CONCLUSION

…

The claimant has been involved in an incident that occurred on 13.08.2019. This incident has been experienced as trauma as described in DSM-IV and DSM-5 in relation to posttraumatic stress disorder. This incident has been experienced as a significant fear of possible death, has resulted in significant harm to her personal integrity, has been experienced with horror and helplessness. Following this incident, [JF] has experienced re-experiencing phenomena, avoidance phenomena and hyperaroused state of mind. Considering the above, [JF's] presentation does fulfil the criteria of posttraumatic stress disorder. The claimant has received treatment in the form of pharmacotherapy and psychotherapy.

This intervention has resulted in improvement of symptomatology, however the symptomatology has continued significantly and has continued to affect her activities of daily living and on her functioning.

At the time of examination, [JF's] presentation has reached maximum medical improvement and it is highly unlikely that any further treatment will result in improvement of symptomatology and I confirm [JF] has sustained significant degree of permanent impairment.^[43]

[103]
In evidence before the Commission, Dr Watt advised that the diagnosis of PTSD is a condition considered by psychiatry to be a severe mental illness.

[104]
Dr Watt further gave evidence that the symptoms described by JF that she was still suffering from feelings of being overwhelmed when in public places is consistent with the diagnosis of PTSD.

[105]
Dr Watt expressed an opinion to the effect that, given the nature of PTSD, there remains a risk of deterioration. For that reason, Dr Watt recommends that someone diagnosed with PTSD would continue, even after treatment had ended, to be regularly reviewed by a GP and/or psychiatrist.

Ms Tracey Mousset – psychologist

[106]
Tracey Mousset, psychologist, was also called to give evidence. Ms Mousset provided treatment to JF following the diagnosis of PTSD. Ms Mousset confirmed that the treatment included a course of Eye Movement Desensitization and Reprocessing ('EMDR') which is a type of treatment targeting the memory. Ms Mousset's notes were tendered into evidence.^[44]

Consideration of the Evidence

[107]
The Respondent has not responded to the case put against him in any written form and did not attend the hearing on 6 June 2025. Accordingly, JF's evidence, the evidence tendered on her behalf and the evidence of the expert witnesses, has not been contradicted.

[108]
In addition to this, JF is found to be a credible witness. The oral evidence given before the Commission at the hearing by JF was consistent with her affidavit evidence filed in the proceedings. Additionally, JF's account was also consistent with the contemporaneous accounts provided to, inter alia, the Queensland Police Service. The Commission has also had regard to the medical evidence tendered and notes that the history stated and recorded in those reports, as being given by JF, is consistent with JF's evidence before the Commission.

[109]
Accordingly, JF's evidence is accepted as a reliable account of the incidents said to constitute the unlawful sexual harassment.

Factual Findings

Does the conduct fall within s 119(a)-(d) of the AD Act?

[110]
I accept JF's evidence as credible and find on the evidence that the Respondent engaged in the following conduct:

the Respondent engaged in the following verbal conduct by making the following verbal statements to JF:

"will you have sex with me?";

words to the effect that JF had a "wet vagina"; and

"just give me one thing".

the Respondent engaged in the following physical conduct towards JF:

he grabbed JF and kissed her;

he continued to kiss JF and attempted to pull down JF's blouse in order to kiss her breast;

he spun JF around, pushed her over the bench, put his hand down JF's pants and touched her vagina;

he then pulled JF onto his lap, put his hand down JF's pants and penetrated her vagina with his fingers; and

he pulled down JF's pants to expose her buttocks and kissed her buttocks.

[111]
I find that while the Respondent was engaging in the verbal and physical conduct that JF had:

refused the request for sex;

attempted to leave the premises but the doors were locked, and she could not leave; and

pleaded with the Respondent to stop and he was making her feel uncomfortable.

[112]
On this basis, it can be concluded that the conduct was unwelcome and unsolicited.

[113]
I find that the incident described by JF that took place prior to the commencement of the second shift, when the Respondent requested to have sex with JF and concluded when JF left the Restaurant, amounted to be one course of conduct constituted by separate acts (or conduct) which were both verbal and physical. The course of conduct must be considered in the context that it commenced by the Respondent requesting to have sex with JF to which JF refused. This factor, together with the nature of the physical and verbal conduct described by JF, leads to the conclusion that the conduct was sexual in nature.

Do the findings of fact support a conclusion that JF was sexually harassed by the Respondent?

[114]
The verbal conduct of the Respondent to JF, namely the conduct referred to at paragraph 110(a)(i) above falls within the meaning of sexual harassment referred to at s 119(b) of the AD Act as it is an unsolicited demand or request for sexual favours from the other person, being JF.

[115]
The verbal conduct of the Respondent to JF, namely the conduct referred to at paragraph 110(a)(ii)-(iii) above falls within the meaning of sexual harassment referred to at s 119(c) of the AD Act as it is a remark with sexual connotations relating to the other person, being JF.

[116]
The physical conduct of the Respondent to JF, namely the conduct referred to at paragraph 110(b)(i)-(iii) amounts to sexual harassment within the meaning of s 119(a) and (d) of the AD Act as the conduct is an unsolicited act of physical intimacy and further is unwelcome conduct of a sexual nature in relation to the other person, being JF.

[117]
The conduct was unwelcome as the Respondent engaged in the conduct after JF had refused the request for sex and the Respondent continued to engage in the conduct despite JF requesting for it to stop.

Did the Respondent engage in the conduct in circumstances where a reasonable person would have anticipated the possibility JF would be offended, humiliated or intimidated by the conduct?

[118]
Having regard to s 120 of the AD Act, the relevant circumstances include JF's female gender and the Respondent's male gender.^[45]

[119]
Further, in the circumstances of this matter, the fact that the Respondent was JF's employer and that JF was the sole provider for herself and her children indicates a distinct power imbalance between the Respondent and JF and are matters relevant to the circumstances of the matter pursuant to s 120(e) and (f) of the AD Act.

[120]
Additionally, the conduct of the Respondent at the time of the incident, including by continuing to engage in the conduct despite JF pleading for him to stop, are matters relevant to s 120(f) of the AD Act.

[121]
A reasonable person, knowing JF's gender and the power imbalance arising from the employment relationship would have anticipated the possibility that JF would be offended and humiliated by the Respondent's conduct.

[122]
Further, and in addition to these matters, a reasonable person would have anticipated the possibility that JF would be intimidated by the Respondent's conduct.

[123]
Accordingly, the Commission finds that the Respondent sexually harassed JF in contravention of s 118 of the AD Act.

Damages – Compensation for Non-Economic Loss for Pain and Suffering

[124]
At the commencement of the hearing, JF's legal representative advised that JF withdrew her claim for economic loss and other components of the relief sought and only sought to proceed with a claim for damages for compensation.^[46] It was noted that this was because of the resolution of JF's workers' compensation claim.

[125]
JF seeks compensation for the Respondent's contravention of s 118 of the AD Act in the sum of $130,000.

[126]
If it is found that the Respondent contravened the AD Act, then s 209 of the AD Act provides that the following orders may be made:

209 Orders the tribunal may make if complaint is proven

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

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

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;

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;

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

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;

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

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

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.

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.

If, in respect of a representative complaint—

the tribunal decides that the respondent contravened the Act; but

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.

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

employing, reinstating or re-employing a person; or

promoting a person; or

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

In this section—

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

[127]
In considering the application of s 209(1)(b) of the AD Act, the Commission^[47] has previously adopted a similar approach to that taken to the application of s 46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth).

[128]
In adopting such an approach, the Commission has summarised the following principles relevant to the consideration of s 209(1)(b) of the AD Act as follows:

[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. 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.

[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.

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

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]
In Watts v Australian Postal Corporation ('Watts'), 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:

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.

[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:

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].

[117]
The statutory phrase '… caused by' connotes a direct or proximate relationship of cause and effect. 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, s 209(1)(b) of the AD Act is concerned with the relationship of cause and effect.

[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.

[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; and

general damages are not assessed by performing arithmetical adjustments to prior determinations.

[120]
Fifthly, aggravated damages may form part of an order for compensation under s 209(1)(b) of the AD Act. 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. The character of the conduct necessary has been described as lacking bona fides, or being improper or unjustifiable. 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.^[48]

[129]
It has been accepted that the statutory objects are relevant to that aspect of damages which concerns causation and also relevant to the assessment of damages more generally.^[49]

[130]
As noted at the outset, one of the statutory objects of the AD Act is to promote equality of opportunity for everyone by protecting them from sexual harassment.^[50] One of the ways the AD Act achieves this purpose is by prohibiting sexual harassment.^[51]

[131]
This statutory object may be used as a guide in applying the principles with respect to the assessment of damages.

[132]
As far as guidance as to the level of general damages is concerned, JF relied on a series of decisions issued following the Full Court of the Federal Court of Australia's decision in Richardson v Oracle.^[52] JF's submissions in this regard were as follows:

Damages for Pain, Suffering, Hurt and Humiliation

There has been much discussion of late within the jurisdiction as to what is an appropriate amount to compensate for general damages for pain and suffering for sexual discrimination.

The discussion has been prompted by the Full Federal Court decision in Richardson v Oracle Corporation Australia Pty Ltd [2013] FCA 102 where an appeal was upheld increasing the general damages component from $18,000.00 to $100,000.00. The prevailing consideration in that case for the Federal Court was the need to have awards of damages that reflect community expectations and standards.

It is submitted that there is less legitimacy in the argument that State Courts or Tribunals should not have reference to decisions in other States. The phenomenon has been well-recognised and is discussed by Prof. Luntz in his seminal work "Assessment of Damages for Personal Injury and Death" 5th Edition at 3.19, 3.1.12 and 3.1.14. Similar conclusions were reached in the South Australian Court of Appeal in BHP Billiton Limited v Hamilton (2013) 117 SASR 329 at paragraphs [105] to [112].

In Richardson the Federal Court increased the award of damages to $100,000.00. In that case the plaintiff became the victim of unwanted sexual harassment by her superior. There was no physical intimacy or attack on the complainant in that case as there was in the present case. Nevertheless, the Applicant in that case had a profound psychiatric condition.

More recently, in Hill v Hughes [2019] FCCA 1267, the Federal Circuit Court of Australia awarded a sum of $120,000.00 in circumstances where the Applicant was the recipient of emails of a sexually confronting nature.

Again, most recently in Yelda v Sydney Water Corporation [2021] NSWCATAD 107, the Tribunal there awarded the maximum statutory cap of $100,000.00 plus a further $50,000.00 for personal injury in respect of sexual harassment constituted by the claimant there being depicted in a poster with a slogan "Feel Great - Lubricate". It was found that the connotation was sexual in nature. There the plaintiff was diagnosed with an adjustment disorder with mixed anxiety and depressed mood.

Within this jurisdiction, in STU v JKL (Qld) Pty Ltd [2016] QCAT 505, the Tribunal on re-hearing awarded a sum of $70,000.00 for general damages. In that case the diagnosis was of an adjustment disorder with mixed anxiety and depressed mood. In fact, the psychiatric impairment rating scale assessment was assessed between one per cent and 2.5 per cent. The Applicant in that case also had significant pre-existing psychiatric injury as well as other stressors which occurred post-event.

In Green v State of Queensland, Brooker and Keating [2017] QCAT 8, the Tribunal made a similar assessment in a finding of sexual harassment in the context that the complainant there came upon a scene which depicted of the aftermath of a sex romp. There were also allegations of victimisation following that. The discussion in Green is comprehensive but in effect the Tribunal sought to apply a similar award of damages in STU following the need for consistency as part of the objects of the Queensland Civil and Administrative Tribunal Act 2009. There a process of adopting previous awards for sexual discrimination in older decisions was compared, making adjustments for inflation.

Such an approach is contrary to the High Court's decision in Planet Fisheries Pty Ltd v Larossa (1968) 119 CLR 118. There Chief Justice Barwick noted that damages should be proportionate to the injury and that such damages could only be satisfied on appeal if it was out of proportion to the circumstances of the case. Since no two cases are truly comparable, the test was by "the general standards prevailing in the community". It is therefore erroneous to seek to derive a normal standard from a group of judgments thereby preventing a tariff.

What Richardson should be seen is that it brought awards of damages for sexual discrimination into alignment with current community standards.^[53]

[133]
JF also made submissions with respect to the Industrial Court's decision in Golding Appeal which awarded an amount for both general and aggravated damages. JF's submissions with respect to Golding Appeal were as follows:

… There, the complainant had been the subject of sexual harassment by verbal advances and text messages of a sexual nature by her employer. There was one episode where the employer touched the Appellant's bottom and another on her inside thigh momentarily.

General and aggravated damages were assessed, in total, at $35,000.00. On appeal, Davis J, President, set aside the award and substituted an award for $130,000.00. In doing so, he took into consideration the compensatory affect of aggravated damages as considered in Wotton v State of Queensland (No. 5) (2016) 157 AD 14 and noted that:

"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 to particular factors. Those factors are compensatory and may be taken into account in calculating statutory compensation under the ADA and like statutes."^[54]

[134]
It appears that the amount JF seeks by way of compensation aligns with the quantum awarded for general and aggravated damages in Golding Appeal.

[135]
The assessment of general damages is not to be conducted by performing arithmetic adjustments to prior determinations.^[55] However, "with great caution" similar cases may be considered in order to determine an appropriate range within which the damages awarded should fall.^[56]

[136]
The circumstances of the sexual harassment and victimisation which was the subject of the consideration in Golding and Golding Appeal are summarised in the extract of the submissions made on JF's behalf referred to above.^[57]

[137]
The approach taken by the Court in Golding Appeal to the assessment of compensation is set out as follows:

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. I set aside the awards made in the QIRC for general damages and aggravated damages and substitute an award of $130,000.^[58]

[138]
Subsequent to the Industrial Court's decision in Golding Appeal, the Federal Court of Australia considered an allegation of sexual harassment and victimisation in Taylor v August and Pemberton Pty Ltd ('Taylor').^[59] In Taylor, Ms Taylor alleged, inter alia, that she had been sexually harassed and victimised. Her Honour, Katzmann J, described the acts constituting the sexual harassment as falling into relatively discrete categories: the provision of numerous gifts; the making of certain comments and "declarations of feelings".^[60]

[139]
The Court found that Ms Taylor had been sexually harassed and was subjected to an act of victimisation. Ms Taylor claimed $250,000 for general damages and an additional sum of $50,000 for the aggravation of her psychiatric condition based on the acts of victimisation.

[140]
The Court rejected the amount claimed on the basis it would not be compensatory but punitive. Instead, the Court awarded Ms Taylor $140,000 for the sexual harassment and $40,000 for the victimisation.^[61]

[141]
The Court's reasoning for awarding the damages to Ms Taylor is as follows:

In determining an appropriate award in the present case, I take into account the following matters. Ms Taylor is a young woman who has developed a chronic psychiatric disorder caused by the respondents' conduct. As a result, she has experienced depression and anxiety, disturbed sleep, reduced energy, poor concentration, lack of motivation, loss of appetite and a reduction in social contact. She also grieves the loss of her career and the damage she perceives has been done to her reputation. On the other hand, she has improved. She appears to be in a stable and supportive relationship with her partner and she has returned to the workforce. She is obviously a talented and resourceful woman. In my opinion, her condition is likely to continue to improve with the assistance of psychological care once this proceeding concludes.^[62]

[142]
Additionally, the Court awarded Ms Taylor $15,000 by way of aggravated damages for assertions made on behalf of Mr Grew before the Australian Human Rights Commission that Ms Taylor's claim was frivolous and vexatious and, further, the threat made to seek personal costs orders against Ms Taylor's legal representatives.

Consideration – general damages

[143]
The accepted evidence in this matter is that the conduct of the Respondent in contravening s 118 of the AD Act has had a profound and significant detrimental impact on JF. That impact is ongoing.

[144]
JF was entitled to attend her workplace free from being sexually harassed. Instead, her employer subjected her to offensive, intimidating and humiliating conduct.

[145]
The Respondent badgered JF into staying between shifts to drink with him. JF, despite her reluctance, indulged the Respondent out of kindness and listened to his self-professed woes.

[146]
It was at this stage, the Respondent propositioned JF for sex. JF immediately refused and diligently returned to work to complete the second shift despite the Respondent's inappropriate conduct towards her. The Respondent's proposition to JF marked the commencement of his conduct which would continue and escalate after the patrons had left the Restaurant towards the end of the second shift some several hours later.

[147]
Despite JF's earlier refusal of his request for sex, the Respondent forced himself upon JF and subjected her to the verbal and physical conduct. It is accepted that the physical conduct amounted, at least in part, to a sexual assault within the meaning of s 352 of the Criminal Code.

[148]
The Respondent's conduct was predatory and engaged in for his own wanton gratification. It is apparent that the Respondent had a reckless disregard for JF and continued to engage in the conduct despite her request that it stop.

[149]
As a consequence, the Respondent's conduct elicited JF to feel fear.

[150]
The fact that this conduct occurred to JF whilst she was at work and that the perpetrator of the conduct was her employer is an abuse of the power dichotomy and trust inherent in the employment relationship.

[151]
Not surprisingly, but to her detriment, JF was unable to return to the workplace following the conduct and, consequently, lost her immediate source of income. JF was unable to work for a period of time.

[152]
Whilst the offending conduct occurred over the course of several hours,^[63] I consider the nature of the conduct, in particular the nature of the physical conduct constituting the sexual harassment to be a significant consideration to the award of damages. The physical conduct constituting the sexual harassment and described in the reasons above represent a serious and gross violation of JF's person and her right to be free from sexual harassment. It has caused her hurt, injury and humiliation.

[153]
The Respondent's unlawful conduct in sexually harassing JF has occasioned significant disruption to JF's life. JF has described the deleterious impact the conduct has had not only in her relationships with her immediate family members, which has been significantly altered, but has extended to her friendship groups and has resulted in feelings of great vulnerability and a reluctance to engage with the greater community and has extended into her new employment.

[154]
Prior to the conduct, JF described herself as happy, social and outgoing. The conduct has had a profound impact on JF's happiness and her ability to function. JF relies heavily on her family for support in activities that involve leaving the house.

[155]
The medical evidence confirms that JF has been diagnosed with a chronic and severe mental illness, being PTSD, caused by the Respondent's conduct. Dr Watt's evidence is that JF has sustained a significant degree of permanent impairment.

[156]
JF has suffered from severe psychological symptoms including anxiety, nightmares and recurrent intrusive thoughts. JF was required to undergo a treatment program including a course of EDMR treatment. However, JF does report that the severity of her symptoms improved after the EDMR treatment.

[157]
Further, it is acknowledged that JF's condition has improved over time. JF is in a stable and supportive relationship. JF is also seemingly in secure employment and is slowly starting to return to activities such as going to the gym.

[158]
Whilst JF's condition has stabilised she still continues to suffer from symptoms of the condition. The medical evidence is that because of the chronic nature of PTSD, JF poses a risk, without proper medical management, of decompensation.

[159]
JF was 36 years of age at the time of the hearing and will bear the burden of the condition going forward. The reality is that JF will be required to continue to manage her medical condition caused by the Respondent's conduct into the future.

[160]
It follows that I conclude, the unlawful sexual harassment engaged in by the Respondent has detrimentally altered and will continue to alter JF's quality of life although it is noted that the impact of that alteration will lessen relatively over time. The sexual harassment engaged in by the Respondent was serious and egregious and represented a gross breach of the trust and confidence JF had in the Respondent as her employer.

[161]
In all of the circumstances, I am of the view that an award of $140,000 in general damages should be made.

Consideration – aggravated damages

[162]
JF's legal representative submitted that a further aggravating factor is the delay the Respondent has caused and now wishes to contest the matter despite showing no interest in it over several years.

[163]
Ultimately, however, the Respondent did not appear at the hearing and, consequently, JF's case was not contradicted. Relevantly, JF was not subjected to cross-examination by, or on behalf of, the Respondent. Whilst the Respondent's failure to engage in the proceedings is unsatisfactory it is not conduct that, in the circumstances of this matter, warrants an award for aggravated damages.

[164]
However, there is no dispute that aggravated damages may be awarded in a case of this nature.^[64]

[165]
Aggravated damages are "awarded for injury to [a complainant's] feelings caused by insult, humiliation and the like".^[65] In this respect, aggravated damages are compensatory, rather than punitive, in nature and, consequently, may be awarded under s 209(1)(b) of the AD Act.

[166]
The purpose of aggravated damages is to compensate a person, inter alia, when the harm suffered was aggravated by the manner in which the act was done.^[66] Where appropriate, aggravated damages may be awarded as "[a]dditional compensation for the injured feelings of [a complainant] where [the complainant's] sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or motive for which the [respondent] did it."^[67]

[167]
However, the conduct relevant to an award of aggravated damages must be distinct from that taken into consideration for an award of general damages so as to avoid "double dipping".^[68]

[168]
An aggravating feature of the Respondent's conduct in this matter is that the Respondent took steps to lock the doors of the Restaurant before he engaged in the unlawful sexual harassment. This pre-emptive step prevented JF from leaving the Restaurant and indeed prevented anyone else from entering the Restaurant whilst the Respondent unlawfully sexually harassed JF.

[169]
Whilst JF's legal representatives relied on this conduct as a factor relevant to general damages, the Commission does not consider the conduct could be said to amount to a contravention of s 118 of the AD Act and, consequently, does not sound in general damages. However, it is available to consider whether the conduct is aggravating conduct.

[170]
JF's evidence was that she was aware that the Respondent had locked the Restaurant as she attempted to leave when he commenced engaging in the conduct. She asked to leave the Restaurant on the pretence of needing to smoke. The Respondent did not unlock the door for her but instead told JF she could smoke in the Restaurant.

[171]
JF describes feeling a sense of fear at the realisation that she could not leave the Restaurant. Dr Watt's evidence further confirms that the history taken from JF records that upon JF finding that the door was locked she felt frightened and endangered. In this regard, it is recorded that JF stated that when she realised the doors were locked "[her] heart fell out of [her] ass".

[172]
Consequently, the harm done to JF by the conduct constituting the sexual harassment was aggravated by the fact that the Respondent had locked the doors to the Restaurant which prevented JF from leaving.

[173]
It follows that I consider the step taken by the Respondent to lock the door of the Restaurant prior to engaging in the conduct constituting the sexual harassment to be conduct that forms a basis upon which an amount should be awarded for aggravated damages.

[174]
In the circumstances, I award an amount of $10,000 for aggravated damages.

Costs

Power to award costs

[175]
Section 548 of the IR Act provides for costs in a proceeding brought under the AD Act as follows:

548 Costs provisions

The provisions for costs in schedule 2 apply to a proceeding—

heard by the commission under the Anti-Discrimination Act 1991; or

for an appeal to the court under part 6 against a decision of the commission in relation to a proceeding mentioned in paragraph (a).

If a provision of schedule 2 is inconsistent with any other provision of this Act, the schedule prevails to the extent of the inconsistency.

[176]
The provision for costs in s 548(1)(a) requires consideration of sch 2 of the IR Act which is set out, relevantly, as follows:

1 Definitions for schedule

In this schedule—

commission, for an appeal to the court under chapter 11, part 6 against a decision of the commission in relation to a proceeding heard by the commission under the Anti-Discrimination Act 1991, includes the court.

proceeding means a proceeding mentioned in section 548.

2 Each party usually bears own costs

Other than as provided under this schedule, each party to the proceeding must bear the party's own costs for the proceeding.

4 Costs against party in interests of justice

The commission may make an order requiring a party to the proceeding to pay all or a stated part of the costs of another party to the proceeding if the commission considers the interests of justice require it to make the order.

In deciding whether to award costs under subsection (1) the commission may have regard to the following—

whether a party to the proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding;

the nature and complexity of the proceeding;

the relative strengths of the claims made by each of the parties to the proceeding;

the financial circumstances of the parties to the proceeding;

anything else the commission considers relevant.

7 Other power to award costs

The rules may authorise the commission to award costs in other circumstances, including, for example, the payment of costs in the proceeding if an offer to settle the complaint or other matter that is the subject of the proceeding has been made but not accepted.

8 Costs awarded at any stage

If the commission may award costs under a provision of this schedule, the costs may be awarded at any stage of the proceeding or after the proceeding has ended.

9 Fixing or assessing costs

If the commission makes a costs order under a provision of this schedule, the commission must fix the costs if possible.

If it is not possible to fix the costs having regard to the nature of the proceeding, the commission may make an order requiring the costs to be assessed under the rules.

The rules may provide that costs must be assessed by reference to a scale under the rules applying to a court.

[177]
By operation of s 548(2) of the IR Act, sch 2 prevails to the extent of any inconsistency in any other provision within the IR Act.

[178]
In Golding, the Commission had regard to and applied sch 2 of the IR Act. On appeal, the Industrial Court describes that ground 5 "concerns the quantification of costs"^[69] and considered the Commission's reasons as to why it was considered costs could not be fixed in the circumstances of that matter.

[179]
The Court concluded that there was no error in the approach adopted by the Commission in awarding costs.

Consideration

[180]
JF's legal representatives attached to its written submissions filed 27 June 2025, in support of a costs order, a costs assessment undertaken by a costs assessor, National Costing Pty Ltd. That cost assessment is dated 23 June 2025 and identifies that the assessment has been undertaken on the basis of standard professional costs (including anticipated costs to finalise the matter) at the applicable Magistrates Court Scale of Costs ('the costs assessment').

[181]
The total professional and disbursement costs on a standard basis were assessed as being $31,426.58.

[182]
However, JF submits that her costs should be fixed by the Commission in the sum of $39,650.56 which is said to be comprised of:

Professional Fees (as assessed) at $17,973.98;

Disbursements (as assessed) at $13,426.58; and

Counsel's Fees (not assessed) at $8,250.00.

[183]
Whilst a component of counsel's fees ($1,100) are included in the costs assessment, the additional amount sought includes a further component for counsel's fees equalling $8,250. No explanation is provided in the submissions as to why the additional amount for counsel's fees is claimed and no particulars are provided with respect to the quantum of the total sum claimed or why it was not included in the costs assessment.

[184]
As noted above, however, before the quantum of costs is considered, the Commission must be satisfied, inter alia, that the discretion to award costs as set out in sch 2 s 4 of the IR Act is enlivened.

[185]
The starting point when considering whether costs should be ordered is that usually each party bears their own costs of a proceeding.^[70] The Commission, however, may exercise its discretion to order a party to a proceeding to pay all or a stated part of the costs of another party if the Commission considers the interests of justice require the making of such an order.^[71]

[186]
The words in the "interests of justice" are of wide remit and permit the Commission to consider a broad context of matters.^[72]

[187]
Schedule 2 s 4(2) of the IR Act sets out the matters the Commission may have regard to when deciding whether to award costs. Consideration of these matters will be dependent upon the individual facts of each matter.

[188]
Schedule 2 s 4(2) of the IR Act sets out matters the Commission may have regard to as follows:

whether a party to the proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding;

the nature and complexity of the proceeding;

the relative strengths of the claims made by each of the parties to the proceeding;

the financial circumstances of the parties to the proceeding; and

anything else the commission considers relevant.

Whether a party to the proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding

[189]
JF acknowledges the fact that because the Respondent has taken no interest in defending the proceedings it is difficult to content that JF has been unnecessarily disadvantaged in the proceedings.

[190]
Given the nature of the proceedings, the serious allegations made and the relief claimed it was incumbent upon JF to discharge the onus that rests on her as the claimant in the proceedings to prove her case. JF was able to do so without any presence, in the proceedings, of the Respondent.

[191]
However, because of the Respondent's failure to participate, JF was obliged to take additional steps to establish service. It is also noted that the Respondent's communication with the Industrial Registry on 3 June 2025, just days before the hearing necessitated the proceedings being listed for mention. The failure of the Respondent to attend the mention and to not communicate any intention as to whether he intended to attend the hearing or not caused JF concern and uncertainty with respect to whether the Respondent would appear and raise an impediment that might act to prevent the hearing proceeding on 6 June 2025. Whilst I accept that JF was concerned by this, I do not consider that she was disadvantaged by it.

[192]
On balance, I do not consider that the manner in which the Respondent has acted (or not acted) has unfairly disadvantaged JF.

The nature and complexity of the proceeding

[193]
JF contends that whilst the proceedings were not necessarily complex there were issues arising that added to the complexity, including the nature of the proceeding and the nature of the sexual harassment that required representation.

[194]
In addition, it was submitted that an understanding of JF's common law claim and the impact of that on JF's statutory claim under the Workers' Compensation and Rehabilitation Act 2003 (Qld) and the effect that had on the type of damages that may be claimed in this proceeding necessitated legal representation.

[195]
The nature of the proceedings and the offending conduct detailed in the reasons above rendered JF a vulnerable litigant in the context of these proceedings. Given the nature of the accepted medical evidence as to the impact on JF of the sexual harassment, JF's vulnerability necessitated legal representation.

[196]
Further, arguing the complexity of the damages claim, including the effect and impact of JF's common law claim, would have been a significant hurdle to overcome for a legally unsophisticated litigant. This also supports a conclusion that legal representation for JF was reasonable and necessary.

[197]
Accordingly, the nature and complexity of the proceedings, in these circumstances, weigh in favour of the exercise of the discretion to award costs.

The relative strengths of the claims made by each of the parties to the proceeding

[198]
The strength of the Respondent's case, if any, is unknown.

[199]
The strength of JF's case lay in the acceptance of JF's uncontested evidence as credible, the acceptance of the uncontested medical evidence relied on by JF and the evidence that the physical conduct of the Respondent amounting to the sexual harassment, at least in part, led to the Respondent pleading guilty and, subsequently, being convicted of a sexual assault in contravention of s 352 of the Criminal Code.

[200]
The strength of JF's case and her ultimate success in the proceedings are matters that weigh in favour of the exercise of the discretion in the interests of justice.

The financial circumstances of the parties to the proceeding

[201]
There is no evidence as to the financial circumstances of the Respondent.

[202]
JF submits that the Commission may infer from the evidence of JF's level of income and supporting her children that her financial circumstances are modest.

[203]
Whilst there was evidence about JF's financial position at the time of the incident there is no evidence before the Commission which would enable the Commission to infer that JF's current financial circumstances are modest.

Discretion enlivened

[204]
It follows from this consideration, that the nature and complexity of the proceeding and the strength of JF's case are matters that weigh in favour of the exercise of the discretion.

[205]
In Tamawood Ltd v Paans,^[73] Keane JA (as his Honour then was), in considering ss 70 and 71 of the Commercial and Consumer Tribunal Act 2003 (Qld) which is in similar terms to sch 2 ss 2 and 4 of the IR Act, concluded as follows:

[32]
If orders for costs were not to be made in favour of successful parties in complex cases, then just claims might not be prosecuted by persons who are unable to manage complex litigation by themselves. Such a state of affairs would truly be contrary to the interests of justice; and an intention to sanction such a state of affairs cannot be attributed to the legislature which established the Tribunal.

[33]
To say this is not to ignore s. 71(5)(b) of the Act. There is a clear distinction, in terms of the interest of achieving justice, between the mere fact of having representation and the fact of having reasonably obtained that representation because of the complexity of the case. In the absence of countervailing considerations, where a party has reasonably incurred the cost of legal representation, and has been successful before the Tribunal, it could not rationally be said to be in the interests of justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome. Finally in this regard, it should also be borne in mind that s. 71(4)(a) of the Act expressly recognises that "the outcome of the proceeding" is a consideration which is relevant to the exercise of the discretion conferred by s. 71(1) of the Act.^[74]

[206]
This proceeding in all the circumstances was complex and warranted JF seeking professional assistance and representation. Given that JF was legally unsophisticated and a vulnerable litigant due to the nature of the sexual harassment and the impact of it on her, I consider the engagement of legal representation by JF to be necessary and reasonable. The success of JF's litigation should not be eroded by the unrecovered costs of necessary and reasonable legal representation.

[207]
Further, JF has been wholly successful in her claim. JF successfully pursued the enforcement of her right to be protected from sexual harassment including at her place of work. It is in the interests of justice that she not bear the financial burden of doing so.

[208]
Accordingly, it is in the interest of justice that a costs order be made.

The quantum of costs

[209]
As noted above, JF claims an amount of costs to be fixed at $39,650.56. This amount is comprised of an amount of assessed costs ($31,400.56) and counsel's fees not included in the assessment of $8,250.

[210]
During the course of the hearing, the Commission requested an affidavit, specifically a solicitor's affidavit, evidencing the costs incurred in support of JF's application for costs.^[75]

[211]
Instead, JF's legal representatives filed further submissions with respect to costs which had attached to it the costs assessment conducted by "National Costing Pty Ltd" on 23 June 2025.

[212]
The costs assessment stated:

I refer to your instructions herein and advise that I have perused and considered your file and have determined the Applicant's Standard basis professional costs (including anticipated costs to finalise the matter) at the applicable Magistrates Court Scale of Costs…

[213]
It is not apparent what the cost assessor understood "the applicable Magistrates Court Scale of Costs" to be.

[214]
It is presumed, however, that the scale applied would be less than the actual cost of each item charged by the legal representative. However, that assumption must be considered in the context of the limited evidence with respect to the particulars of the items of costs incurred. This factor weighs against awarding the whole of the costs of the proceeding claimed by JF.

[215]
Given the costs that have been incurred to date by JF, and that a cost assessment has been conducted (albeit in the absence of an affidavit deposing to the material relied on and the methodology adopted), I do not consider that it is just that JF should be put to the further expense of a detailed and complex costs assessment. Accordingly, an order fixing costs will be issued.

[216]
In applying sch 2 ss 4(1) and 9(1) of the IR Act, and doing the best I can in these circumstances, the Respondent is to pay two-thirds of the costs of the proceeding claimed by JF, being two-thirds of $39,650.00. Accordingly, the Respondent is ordered to pay JF's costs fixed in the sum of $26,434.

Orders

[217]
For the reasons set out above, I make the following orders:

Pursuant to s 191(1) of the Anti-Discrimination Act 1991, the Complainant's identity is prohibited from being disclosed in these proceedings, being matter number AD/2021/2.

Pursuant to r 97 of the Industrial Relations (Tribunals) Rules 2011, the Complainant's identity will be de-identified in these reasons.

Pursuant to s 451(2)(c) of the Industrial Relations Act 2016, the file held in the Industrial Registry for matter number AD/2021/2 is to be sealed and withheld from release, search or copy unless leave from the Commission is granted.

Pursuant to s 209(1)(b) of the Anti-Discrimination Act 1991, the Second Respondent must pay, within 28 days, compensation to the Complainant comprising of:

general damages for sexual harassment in the sum of $140,000; and

aggravated damages in the sum of $10,000.

The Second Respondent must pay, within 28 days, the Complainant's costs fixed in the sum of $26,434.

Footnotes

[1]Anti-Discrimination Act 1991 (Qld) s 118 ('AD Act').

[2] JF, 'Outline of Applicant's Submissions', Exhibit 1 in JF v Oishi Teppanyaki & Café Pty Ltd & Anor, AD/2021/2, 6 June 2025, [5] ('Exhibit 1'); Transcript of Proceedings, JF v Oishi Teppanyaki & Café Pty Ltd & Anor (Queensland Industrial Relations Commission, AD/2021/2, Hartigan DP, 6 June 2025) 3 ('Transcript of Hearing on 6 June 2025').

[3]Criminal Code Act 1899 (Qld) sch 1 s 352(1)(a) ('Criminal Code').

[4] JF, 'Verdict and Judgment Record', Exhibit 2 in JF v Oishi Teppanyaki & Café Pty Ltd & Anor, AD/2021/2, 6 June 2025 ('Exhibit 2').

[5] Transcript of Hearing on 6 June 2025 (n 2) 52.

[6] Ibid.

[7]Industrial Relations Act 2016 (Qld) sch 5 ('IR Act'). The definition of "industrial cause" includes a work-related matter under the AD Act.

[8]Ibid s 580(6).

[9]See previously Criminal Law (Sexual Offences) Act 1978 (Qld) s 10, repealed by Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024 (Qld) s 103.

[10]Evidence Act 1977 (Qld) s 103ZZL.

[11]R v O'Dempsey (No 3) [2017] QSC 338, [2] (Applegarth J).

[12]Exhibit 2 (n 4).

[13] [2019] QIRC 115.

[14] Ibid [20], citing House v The King (1936) 55 CLR 499, 504-5.

[15]IR Act (n 7) s 539(g).

[16]Ibid sch 5.

[17] JF, 'Affidavit of Service', Affidavit in JF v Oishi Teppanyaki & Café Pty Ltd & Anor, AD/2021/2, 4 June 2025; JF, 'Affidavit of Drew Phillips', Affidavit in JF v Oishi Teppanyaki & Café Pty Ltd & Anor, AD/2021/2, 7 April 2021, DP-24, DP-25.

[18]Ibid.

[19]AD Act (n 1) s 117(2).

[20](2020) 277 FCR 511 ('Hughes').

[21]Hughes (n 20) [22]-[24] (emphasis in original) (Perram J, Collier J agreeing at [1], Reeves J agreeing at [2]).

[22]Hughes (n 20) [25]-[27] (Perram J) (emphasis in original).

[23]AD Act (n 1) s 119(e).

[24]Ibid s 119(f).

[25] (1938) 60 CLR 336.

[26] Ibid 361-2 (Dixon J).

[27]Transcript of Hearing on 6 June 2025 (n 2) 18.

[28]Ibid 13.

[29]Transcript of Hearing on 6 June 2025 (n 2) 14.

[30]JF, "Affidavit of JF", Affidavit in JF v Oishi Teppanyaki & Café Pty Ltd & Anor, AD/2021/2, 5 August 2021, [33]-[44].

[31]Transcript of Hearing on 6 June 2025 (n 2) 16.

[32] Ibid 17.

[33]JF, 'Victim Impact Statement', Exhibit 4 in JF v Oishi Teppanyaki & Café Pty Ltd & Anor, AD/2021/2, 6 June 2025 ('Exhibit 4').

[34]Exhibit 4 (n 33).

[35]Transcript of Hearing on 6 June 2025 (n 2) 25.

[36]Exhibit 2 (n 4).

[37] By the tendering of the Verdict and Judgment Record; Exhibit 2 (n 4).

[38]JF, 'Medical Reports – Dr K. Fuls', Exhibit 5 in JF v Oishi Teppanyaki & Café Pty Ltd & Anor, AD/2021/2, 6 June 2025 ('Exhibit 5').

[39]Exhibit 5 (n 38) Report dated 18 February 2020.

[40]JF, 'Independent Medico-Legal Report of Dr G. Watt dated 11 May 2021', Exhibit 6 in JF v Oishi Teppanyaki & Café Pty Ltd & Anor, AD/2021/2, 6 June 2025 ('Exhibit 6').

[41] Ibid 9.

[42]Ibid 6.

[43]Exhibit 6 (n 40) 13-4.

[44]JF, 'Psychologist – Tracey Mousset Notes and Report', Exhibit 7 in JF v Oishi Teppanyaki & Café Pty Ltd & Anor, AD/2021/2, 6 June 2025 ('Exhibit 7').

[45]AD Act (n 1) s 120(a).

[46]Transcript of Hearing on 6 June 2025 (n 2) 7.

[47]Golding v Sippel and The Laundry Chute Pty Ltd [2021] QIRC 74 ('Golding'), approved in Golding v Sippel and The Laundry Chute Pty Ltd [2021] ICQ 14 ('Golding Appeal').

[48]Neil v Lee [2024] QIRC 93, [112]-[120] (citations omitted).

[49]Hughes (n 20) [52].

[50]AD Act (n 1) s 117(1).

[51]Ibid s 117(2)(a).

[52](2014) 223 FCR 334 ('Richardson').

[53]Exhibit 1 (n 2) [31]-[40] (emphasis in original) (citations omitted).

[54]Ibid [41]-[42] (emphasis in original) (citations omitted).

[55]Richardson (n 52) [82], [102] (Kenny J, Besanko and Perram JJ agreeing); Hughes (n 20) [48] (Perram J).

[56]Ewin v Vergara (No 3) (2013) 238 IR 118, [658] (Bromberg J).

[57]See also Golding Appeal (n 47) [11]-[21].

[58]Ibid [53] (citations omitted).

[59](2023) 328 IR 1 ('Taylor').

[60]Ibid [35].

[61]Ibid [522].

[62]Taylor (n 59) [521].

[63]Cf Golding Appeal (n 47), Hughes (n 20) and Taylor (n 59) where the conduct in those cases occurred over the course of several months.

[64]Golding Appeal (n 47) [53].

[65]Lamb v Cotogno (1987) 164 CLR 1, 8 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ).

[66]Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 149 (Windeyer J).

[67]Cassell & Co Ltd v Broome [1972] AC 1027, 1124 (Lord Diplock).

[68]Clarke v Nationwide News Pty Ltd (2012) 201 FCR 389, [348] (Barker J).

[69]Golding Appeal (n 47) [55].

[70] IR Act (n 7) sch 2 s 2.

[71] Ibid sch 2 s 4(1).

[72]Herron v Attorney-General (NSW) (1987) 8 NSWLR 601.

[73][2005] QCA 111 ('Tamawood Ltd v Paans').

[74]Ibid [32]-[33] (Keane JA).

[75]Transcript of Hearing on 6 June 2025 (n 2) 50-1.

Editorial Notes

Published Case Name:
JF v Oishi Teppanyaki & Café Pty Ltd & Anor
Shortened Case Name:
JF v Oishi Teppanyaki & Café Pty Ltd
MNC:
[2025] QIRC 209
Court:
QIRC
Judge(s):
Hartigan DP
Date:
08 Aug 2025

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Cassell & Co. Ltd v Broome	View on:ICLRUK(1972) AC 1027	2 citations Jump To Cite 1 - (1972) AC 1027 Cite 2 - (1972) AC 1027
Ewin v Vergana (No 3)	(2013) 238 IR 118	2 citations Jump To Cite 1 - (2013) 238 IR 118 Cite 2 - (2013) 238 IR 118
Ewin v Vergana (No 3)	View on:JADE[2013] FCA 1311	2 citations Jump To Cite 1 - [2013] FCA 1311 Cite 2 - [2013] FCA 1311
Golding v Sippel and The Laundry Chute Pty Ltd	[2021] QIRC 74	2 citations Jump To Cite 1 - [2021] QIRC 74 Cite 2 - [2021] QIRC 74
Golding v Sippel and The Laundry Chute Pty Ltd	[2021] ICQ 14	2 citations Jump To Cite 1 - [2021] ICQ 14 Cite 2 - [2021] ICQ 14
Green v Queensland	[2017] QCAT 8	1 citation Jump To Cite 1 - [2017] QCAT 8
Hall v Sheiban	(1989) 20 FCR 217	2 citations Jump To Cite 1 - (1989) 20 FCR 217 Cite 2 - (1989) 20 FCR 217
Herron v Attorney-General for N.S.W.	View on:NSWLR(1987) 8 NSWLR 601	2 citations Jump To Cite 1 - (1987) 8 NSWLR 601 Cite 2 - (1987) 8 NSWLR 601
Hill v Hughes	View on:JADE[2019] FCCA 1267	1 citation Jump To Cite 1 - [2019] FCCA 1267
House v The King	View on:JADE(1936) 55 CLR 499	2 citations Jump To Cite 1 - (1936) 55 CLR 499 Cite 2 - (1936) 55 CLR 499
HREOC v Mt Isa Mines	(1993) 46 FCR 301	1 citation Jump To Cite 1 - (1993) 46 FCR 301
Hughes v Hill	(2020) 277 FCR 511	2 citations Jump To Cite 1 - (2020) 277 FCR 511 Cite 2 - (2020) 277 FCR 511
Lamb v Cotogno	View on:JADE(1987) 164 C.L.R 1	2 citations Jump To Cite 1 - (1987) 164 C.L.R 1 Cite 2 - (1987) 164 C.L.R 1
Macabenta v Minister for Immigration and Multicultural Affairs	(1998) 90 FCR 202	1 citation Jump To Cite 1 - (1998) 90 FCR 202
Neil v Lee	[2024] QIRC 93	2 citations Jump To Cite 1 - [2024] QIRC 93 Cite 2 - [2024] QIRC 93
Paul Scott v State of Queensland	[2019] QIRC 115	2 citations Jump To Cite 1 - [2019] QIRC 115 Cite 2 - [2019] QIRC 115
Planet Fisheries Pty Ltd v La Rosa	View on:JADE(1968) 119 CLR 118	1 citation Jump To Cite 1 - (1968) 119 CLR 118
Qantas Airways Ltd v Gama	(2008) 167 FCR 537	2 citations Jump To Cite 1 - (2008) 167 FCR 537 Cite 2 - (2008) 167 FCR 537
R v O'Dempsey (No 3)	[2017] QSC 338	2 citations Jump To Cite 1 - [2017] QSC 338 Cite 2 - [2017] QSC 338
Richardson v Oracle Corporation	(2014) 223 FCR 334	2 citations Jump To Cite 1 - (2014) 223 FCR 334 Cite 2 - (2014) 223 FCR 334
Richardson v Oracle Corporation Australia Pty Ltd	View on:JADE[2013] FCA 102	1 citation Jump To Cite 1 - [2013] FCA 102
STU v JKL (Qld) Pty Ltd	[2016] QCAT 505	1 citation Jump To Cite 1 - [2016] QCAT 505
Tamawood Ltd v Paans	[2005] 2 Qd R 101; [2005] QCA 111	2 citations Jump To Cite 1 - [2005] QCA 111 Cite 2 - [2005] QCA 111
Taylor v August and Pemberton Pty Ltd	(2023) 328 IR 1	2 citations Jump To Cite 1 - (2023) 328 IR 1 Cite 2 - (2023) 328 IR 1
Uren v John Fairfax & Sons Pty Ltd	View on:JADE(1966) 117 CLR 118	2 citations Jump To Cite 1 - (1966) 117 CLR 118 Cite 2 - (1966) 117 CLR 118
Yelda v Sydney Water Corporation	View on:JADE[2021] NSWCATAD 107	1 citation Jump To Cite 1 - [2021] NSWCATAD 107

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