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Bangalow lawyer Owen Hughes successfully sued for sexual harassment

A Bangalow solicitor’s sexual harassment of a single mum who worked for him has proven to be costly, and may well end his legal career.

Hughes

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

The facts

Junior/trainee solicitor Catherine Mia Hill began working with Owen Hughes’ Bangalow based law firm Beesley and Hughes Lawyers in May 2015. The evidence showed that that he thought Hill was attractive, wanted to be in a relationship with her and that he communicated that to her.  Hughes offered to represent her in a mediation for her own family law matter, and she agreed.

Single Mum feared no job

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.

Relevant law

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 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”.

Federal Circuit Court decision

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 to 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.

Conclusion

Sexual harassment is something that is nowadays taken seriously and censured, particularly when it occurs in the workplace.  Only an incredibly foolish employer would today wilfully engage in it against one of their employees. The emails sent by Hughes in this case really spoke for themselves, and made a finding he had committed sexual harassment followed by an award of damages inexorable. True to his promises (and to his own detriment), Hughes fought this claim to the bitter end.

The real question in this case was why Hughes did not really appreciate how improper his conduct was, and why he did not make every possible attempt to settle this claim given the certainty that failing to settle would severely negatively impact on his reputation, finances and career. . If he had been properly advised, he would have been made to understand he needed to settle soon because we would more than likely lose at trial. This case might be a salutary lesson on why lawyers should generally not represent themselves in litigation. That he fought this clearly unwinnable case all the way to trial in our view raises serious questions about his degree of empathy towards others and/or self-awareness of how others would view his conduct, as well as his understanding of his professional obligations and the standards to which he is held to as a lawyer.

In particular, the devastating findings by Judge Vasta that Hughes had engaged in such a persistent, exploitative and grossly unprofessional course of conduct, had created a conflict of interest by acting for her for ulterior motives, lied under oath at trial and had improperly used privileged and confidential information against Hill contrary to his ethical obligations as a solicitor, are ominous. Such findings would individually justify a finding that Hughes is not a fit and proper person to remain a lawyer. In our view taken together they point strongly to a conclusion he is not fit to remain practising as a lawyer, and probably should be struck off. No doubt the NSW Legal Services Commission has been keeping a close eye and will institute their own proceedings in due course. Perhaps this is a primary reason why Hughes has appealed the judgment. As previously mentioned, the best course would have been to settle at the start.

Watch this space.

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