Bangalow lawyer loses appeal against successful sexual harassment suit

This blog had previously reported on the Owen Hughes sexual harassment case brought by a former employee of his law practice.

Junior/trainee solicitor Catherine Mia Hill began working with Owen Hughes’ Bangalow based law firm Beesley and Hughes Lawyers in May 2015. Soon after,  Hughes offered to represent her in a mediation for her own family law matter, and she agreed.

A couple of months later, Hughes started his course of sexual harassment by sending Hill emails telling her that he thought she was attractive, and he wanted to be in a relationship with her.

Comments Hughes made to her initially included the following:

“My feelings towards you have grown”,

“it meant a lot to me not just professionally that you have come into my life”

“it was so nice you trusting me with your own case”

“it is clear we both like each other personally and well, you know a lot of relationship (sic) started in the work environment something like 60% plus according to a report on the ABC”.

On a work trip to Sydney in July 2015, Hill found Hughes dressed in a singlet and boxer shorts only, lying on a mattress in the room she was supposed to sleep in that evening. The next morning after her shower she again found him lying on the same mattress. On both occasions he asked for a hug after being asked to leave, and she reluctantly complied.

Numerous other emails of a personal nature followed, including persistent expressions of his love for her and comments that he would find a Ukrainian woman to work with him if she continued to turn him down. Hill’s evidence was that she told him to stop and that she was unwilling to read his emails as she viewed them with dread, but he continued. Even when she told him that she had a boyfriend in England his emails became more persistent and threatening, including 7 emails being sent by him to her on Monday 12 October 2015.

On 4 June 2016, Hughes sent Hill an email saying he could only afford to employ her for two days a week and making various comments about her personal life based on information he had acquired acting for her in her family law matter. On Thursday 9 June 2016, he sent another email seeking to justify his use of personal comments of her and saying that he would fight any complaint she brought against him. She resigned and finished working for Beesley and Hughes Lawyers later that month.

Section 28A of the Sex Discrimination Act 1984 (Cth) provides that:

Meaning of sexual harassment

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

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

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

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

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

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

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

(c) any disability of the person harassed;

(d) any other relevant circumstance.

(2) In this section: “conduct of a sexual nature” includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

Section 28B of the Sex Discrimination Act 1984 (Cth) provides that:

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

(a) an employee of the person; or

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

Section 46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth) provides that:

“If the court concerned is satisfied that there has been unlawful discrimination by any Respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

…

“an order requiring a Respondent to pay to an Applicant damages by way of compensation for any loss or damage suffered because of the conduct of the Respondent”.

Judge Salvatore Vasta rejected Hughes’ evidence where it conflicted with Hill’s, and his characterisations of the emails he had sent Hill. While Hill was “forthright and honest in her evidence”, Hughes on the other hand “tried to obfuscate matters a number of times and often refused to answer direct questions” and “provided two ludicrous and bizarre explanations as to why he entered [Hill]’s room on two occasions during their trip to Sydney. The fact that he continued with what was, quite clearly, a false account under oath points to dishonesty more widely”.

Judge Vasta also found that Hughes had volunteered to act for Hill in her family law matter because he was attracted to her, in order to gain more information about her and become “closer” to her.

Judge Vasta held that Hughes had through his course of conduct made an unwelcome sexual advance towards Hill. Hughes’ apparent attempt to distinguish romantic advances and sexual ones was rejected. Judge Vasta further accepted Hill’s evidence that she was offended, humiliated and intimidated by Hughes’ conduct and held that Hughes would have anticipated that it would have that effect. The particular circumstances that Judge Vasta had regard to in making such findings were:

• • ● that Hill and Hughes were in an employer/employee relationship;
  • ● that Hughes had also been engaged as the “legal representative” of Hill;
  • ● that Hill was “anchored” to the Northern Rivers region because of her life circumstances and, as such, needed employment in that area;
  • ● Hughes knew that Hill suffered from anxiety.

 
As a result, liability was established against Hughes.

On the question of damages, Judge Vasta found that the evidence of the psychologist and the psychiatrist both called for Hill were each “logical and quite compelling”. Because it was found that Hughes’ conduct caused Hill to have a psychological injury, and because his conduct was “obviously unwarranted, persistent and threatening”, a sum of compensatory damages of $120,000 was awarded against Hughes.

A further $50,000 was awarded to Hill by way of aggravated damages due to Hughes’ conduct of the litigation, which included the improper use of privileged and confidential information in attempts to discredit Hill and “utterly outrageous” claims that she had provoked his conduct. In addition, costs were to be awarded to Hill.
 

Evidently unhappy with Judge Vasta’s scathing decision, Hughes appealed to the Federal Court. The main grounds of appeal were:

● That Judge Vasta had erred in finding that the Hughes’ conduct towards Hill constituted a sexual advance, conduct of a sexual nature, sexual harassment and a breach of s 28B of the Sex Discrimination Act 1984;

● That the award of $120,000 in general damages was manifestly excessive and outside the range which was open to Judge Vasta; and

● That Judge Vasta had erred in awarding aggravated damages against Hughes.

Justice Nye Perram wrote the judgment that the rest of the Court (Collier J and Reeves J) concurred with.

Was the harassment sexual?

Hughes submitted that his intentions were ‘strictly honourable’, and that the central question was the objective question posed by s 28A, which turned on whether a reasonable person would have anticipated the possibility that Hill would be offended, humiliated or intimidated. He also argued that it could not be proven that his conduct had a sexual meaning, particularly given the gravity of finding that the utterances of his were sexual.

Perram J noted that there are essentially three elements to this provision and described them 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.

Perram J held that Hughes’ submissions conflated the first and the third elements described above. In assessing whether the conduct was sexual, Perram J noted that Hughes had suggested by email that Hill would become his lover, and admitted in cross-examination that this suggestion had a sexual component. Perram J concurred with Judge Vasta that the whole of Hughes’ conduct should be viewed as “these tawdry events constituted a single composite sequence which was, in effect, a determined quest to have a sexual relationship” with Hill.

Perram J concluded his analysis of this ground of appeal with the following colourful observation:

“Consequently, I reject the submission of Senior Counsel for the Appellant that these were the actions of a Mr Darcy. The facts of this case are about as far from a Jane Austen novel as it is possible to be.“

The award of $120,000 in general damages

Hughes submitted that Judge Vasta had erred in law by awarding a manifestly excessive amount of $120,000 in general damages, failing to consider any authority prior to this Court’s decision in Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; 223 FCR 334, use of emotive language, taking into account the objects of the SD Act in assessing damages and not proving reasons for his award of general damages.

On the amount of the award, Perram J, after analysing the uncontested evidence that Hughes had caused Hill to suffer an adjustment disorder with mixed anxious and depressed mood, opined that:

“What is the ruin of a person’s quality of life worth? I flatly reject the Appellant’s contention that it was not worth $120,000 and the allied submission that such a finding was not open on the evidence. It seems to me to have been entirely within the range of available awards for general damages in a case of this seriousness where actual psychological harm was occasioned to the Respondent by the Appellant’s repeated and self-indulgent actions.”

Perram J also noted that the Oracle case represented a significant increase in the amount of general damages being awarded in cases of sexual harassment,so prior cases were not useful.

In relation to the emotive language used by Judge Vasta in his primary judgement, Perram J held that this was appropriate in the circumstances of the case:

“there is no doubt that some of the language of the trial judge is strong but this merely reflects the quality of the Appellant’s own behaviour. There are cases which call for strong language especially where one person has so seriously wronged another. The trial judge’s palpable outrage at the Appellant was justified by the Appellant’s conduct not only in harassing the Respondent but in the deplorable manner in which he conducted his defence.”

The submission about the objects of the Sex Discrimination Act being irrelevant to assessment of damages was also rejected as being contrary to the decision in Oracle, and Judge Vasta had arrived at an award of general damages in an entirely orthodox way.

Award of aggravated damages

Hughes submitted that Judge Vasta had blurred the distinction between aggravated damages and punitive or exemplary damages, which resulted in Judge Vasta erring in concluding that his conduct warranted aggravated damages and/or had erred in concluding that this behaviour had increased Hill’s suffering.

Perram J rejected this line of argument, holding that it ignored the evidence of the case, including plain written threats by Hughes, such as “assure me you will not make a complaint or sue me”, followed by “I always fight the good fight btw”. Perram J noted Judge Vasta was correct to conclude this conduct could support an award for aggravated damages, because it was an attempt to deter her from seeking protection under the Sex Discrimination Act. Furthermore, the award for aggravated damages was also partly based on Hughes’ conduct at the trial. Perram J noted that “to say that this conduct during the trial is reprehensible would be an understatement”.

In relation to the argument of a lack of evidence of harm to justify the award for aggravated damages, Perram J made the following observations which all but ensure that Hughes will be struck off as a solicitor:

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

As a result, the appeal was dismissed.

It is somewhat surprising that Hughes appealed the primary judgment, given how deplorable his conduct had been from start to finish. As Perram J noted:

“In my opinion, the trial judge was correct to condemn the Appellant’s conduct of the trial as, in effect, a continuation of his harassment of the Respondent. This appeal is devoid of merit and I would infer was pursued for the same purpose. Some of the submissions were, in my opinion, insulting. It should not have been brought and, in my opinion, should be emphatically dismissed.”

As we previously noted, an almost inevitable consequence of this case is that Hughes’ fitness to practice law has been very seriously called in question. Not only did he engage in continual sexual harassment of an employee who he knew suffered from an anxiety disorder over a long period of time, he also abused his position, caused her serious psychological problems, used confidential information against her, was found to have done so in an attempt to blacken her name, ran untenable arguments and was found to have given false evidence in Court. He also demonstrated zero insight or remorse. The above-quoted remarks of Perram J about this case surely ending his legal career virtually ensure that he will be duly removed from the roll of practitioners of NSW.

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