Brown v Moore; Black Community Housing Service (Qld) Ltd v. Doyle; Black Community Housing Service (Qld) Ltd v Moore [1996] QSC 120 (1996)68 IR 176

IN THE SUPREME COURT OF QUEENSLAND Brisbane Before the Hon Justice White No 170 of 1995 BETWEEN: NORMAN BROWN Appellant AND: REBECCA MOORE Respondent No 174 of 1995 BETWEEN: THE BLACK COMMUNITY HOUSING SERVICE (QLD) LTD Appellant AND: RELSIE DOYLE Respondent No 175 of 1995 BETWEEN: THE BLACK COMMUNITY HOUSING SERVICE (QLD) LTD Appellant AND: REBECCA MOORE Respondent REASONS FOR JUDGMENT - WHITE J Judgment delivered 15/07/96 CATCHWORDSAPPEALS - Anti-Discrimination Tribunal - adequacy of findings of fact and reasons - quantum of general damages - nexus between harassment and resignation - vicarious liability - appropriateness of application of s.164(1) of the Corporations Law. -- 1 of 36 -- Counsel: Mr IFM Dearden for the appellant Brown. Mr A Horneman-Wren for the appellant The Black Community Housing Service (Qld) Ltd. Ms D Richards for the respondents Moore and Doyle. Solicitors: Robertson O'Gorman for the appellant Brown. Goss Downey and Carne for the appellant The Black Community Housing Service (Qld) Ltd. Legal Aid Office (Qld) for the respondents Moore and Doyle. Hearing Date: 7 June 1996 -- 2 of 36 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane No 170 of 1995 BETWEEN: NORMAN BROWN Appellant AND: REBECCA MOORE Respondent No 174 of 1995 BETWEEN: THE BLACK COMMUNITY HOUSING SERVICE (QLD) LTD Appellant AND: RELSIE DOYLE Respondent No 175 of 1995 BETWEEN: THE BLACK COMMUNITY HOUSING SERVICE (QLD) LTD Appellant AND: REBECCA MOORE Respondent REASONS FOR JUDGMENT - WHITE J Judgment delivered 15/07/96 On 26 July 1995 the Anti-Discrimination Tribunal (the Tribunal) delivered her decision and gave reasons in respect of two matters which had earlier been heard by her:- • Rebecca Moore (complainant) and Norman Brown (first respondent) and The Black Community Housing Service -- 3 of 36 -- 2 (Qld) Ltd (second respondent) No H11 of 1994. • Relsie Loretta Doyle (complainant) and Mervyn Riley (first respondent) and The Black Community Housing Service (Qld) Ltd (second respondent) No H12 of 1994. Appeals have been brought to this court pursuant to s.217(1) of the Anti-Discrimination Act 1991. Thomas J stayed the orders made pending determination of the appeals and gave directions including that the appeals be heard together. The appeals are:- • The Black Community Housing Service (Qld) Ltd (appellant) and Doyle (respondent) No 174 of 1995; • Brown (appellant) and Moore (respondent) No 170 of 1995; • The Black Community Housing Service (Qld) Ltd (appellant) and Moore (respondent) No 175 of 1995. Mr Riley has not appealed as it appears from the reasons that a confidential settlement was reached with the complainant. The Black Community Housing Service (Qld) Ltd's ("the Housing Service") grounds of appeal are the same in each of its appeals. Mr Horneman-Wren who appears for the Housing Service has abandoned ground one of each appeal, namely, that the Anti- Discrimination Tribunal erred in law in that she did not adequately state the findings and reasons for her decision. The Anti-Discrimination Tribunal The Tribunal was constituted by the President, ss.176, 250(1A). -- 4 of 36 -- 3 The Orders The orders made by the Tribunal were: In No H11 of 1994 (the Moore complaint) Against both respondents jointly and severally 1. $6,500 to reflect hurt and humiliation; 2. $13,500 for loss of income. In No H12 of 1994 (the Doyle complaint): 1. $7,000 for intimidation and humiliation; 2. $6,240 for loss of income "The first respondent is liable to the extent of the confidential settlement and the second respondent is jointly and severally liable for the whole of those damages" Further submissions were to be made as to costs. No orders have been made but the appellants seek their costs below. The Anti-Discrimination Act The relevant provisions of the Anti-Discrimination Act ("the Act") commenced operation on 30 June 1992. Those provisions are not described as having retrospective effect. The Complaints On 26 August 1992 written complaints were lodged by Ms Moore and Ms Doyle alleging discrimination against their employer Housing Service and in the case of Ms Doyle against the President of the Housing Service Mr Mervyn Riley, and in the case of Ms Moore against the Treasurer and a director of the Housing Service, Mr Norman Brown. The conciliation process was unsuccessful in resolving matters. Ms Moore and Ms Doyle -- 5 of 36 -- 4 required the Anti-Discrimination Commissioner to refer their complaints to the Tribunal pursuant to s.166(1) of the Act on the 1st and 11 November 1993 respectively. The Proceedings The Tribunal directed that evidence in chief on behalf of the complainants was to be given on affidavit with the deponents to be available for cross-examination. The Moore complaint was heard on 8 May 1995. Only the complainant was required for brief cross-examination. The respondents adduced no other evidence. The Doyle complaint was heard on 10 and 11 May 1995. Settlement occurred between the complainant and the first respondent Mr Riley, at the commencement of the proceedings. Counsel for the Housing Service cross-examined the complainant and her witnesses and adduced some oral evidence. Background The Moore Complaint Ms Moore is a married aboriginal woman who was employed at the Housing Service from December 1985 as a bookkeeper and from December 1988 as Administrator until she resigned on 27 August 1992. The Housing Service is an organisation set up as a non- profit public company to assist the aboriginal community in providing housing. From December 1990 the appellant Norman Brown was a director of the company and its treasurer. In her affidavit the complainant alleged that from about October 1991 Mr Brown made numerous telephone calls to her expressing love for her and made sexually suggestive remarks to her. The -- 6 of 36 -- 5 complainant told Mr Brown that this conduct was not acceptable to her. Ms Moore attended meetings attended by Mr Brown at which he made suggestive sexual comments to her. He gave sexually explicit figurines to the complainant two of which were exhibits in the proceedings. She alleged that Mr Brown touched her sexually suggestively on numbers of occasions. This activity occurred prior to the Act coming into force on 30 June 1992. The complainant said that she did not confront Mr Brown directly because she feared that she would lose her job but she did complain to members of the board and to the President, Mr Riley, not long before she resigned. On 20 August 1992 Mr Brown telephoned the complainant and after discussing a business matter asked her a sexually explicit question which embarrassed her. The complainant spoke to two other members of the board and indicated that if Mr Brown was not stood down from his position while the matter was investigated by the Commission she would resign. The board took no action against Mr Brown and Ms Moore resigned on 27 August 1992. The complainant was challenged only with respect to the sexually explicit words allegedly said to her by Mr Brown in the telephone conversation on 20 August 1992 and she affirmed that they were said. Much of the complainant's evidence was corroborated by Ms Jody Brimble a co-worker at the Housing Service and Ms Doyle, also employed at the Housing Service. The Doyle Complaint Ms Doyle, a young aboriginal woman, commenced work at the -- 7 of 36 -- 6 Housing Service as a bookkeeper and receptionist on 8 January 1992. Ms Moore was her supervisor. The complaint against Mr Riley was settled, as mentioned, but nonetheless it was necessary for the Tribunal to make findings as to whether unlawful conduct had been engaged in by Mr Riley in order to consider the complaint against the Housing Service. Mr Riley was a married man but on many occasions including three times in her first week at work he asked the complainant to go out to dinner with him. She made it clear that his attentions were unwelcome. He discussed her private life with other people and made obscene gestures behind her back and wrote an obscenity in a birthday card to her from her co-workers. He made sexually suggestive comments to her while she was driving him to the university. Those matters all occurred before the Act came into force. Ms Doyle began to feel that Mr Riley was obsessed with her and spying on her. Ms Doyle's health suffered as a consequence of her anxiety and a Dr Rath diagnosed anxiety and depression related to sexual harassment. On 26 August 1992 Ms Doyle approached two directors of the Housing Service and complained about sexual harassment. Mr Riley expressed anger at Ms Doyle's complaint to the Commission which she made on 26 August. Ms Doyle felt unable, for a variety of reasons associated with the harassment, to continue working at the Housing Service and resigned on 27 August 1992. The Grounds of Appeal • Norman Brown The President of the Anti-Discrimination Tribunal: -- 8 of 36 -- 7 1. Erred in law in that she did not adequately state the findings and reasons for her decision; 2. Erred in law in awarding the respondent the sum of $6,500 in general damages "to reflect the hurt and humiliation suffered" (by the Respondent) after 30 June 1992 in that: (a) There was no evidence that the Respondent suffered any hurt and/or humiliation as a result of the events that occurred after 30 June 1992, the date the relevant provisions of the Anti- Discrimination Act 1991 came into operation; (b) The President did not make findings as to which events occurred after 30 June 1992; and (c) The sum of $6,500 was excessive in the circumstances. 3. Erred in law in awarding the Respondent $13,500 in damages for loss of income because there was no evidence that the Respondent resigned her employment because of the behaviour of the Appellant that occurred after 30 June 1992. • The Black Community Housing Service (Qld) Ltd 1. Discontinued The President of the Anti-Discrimination Tribunal 2. Erred in law in deciding that the Appellant was vicariously liable pursuant to s.133 of the Anti- Discrimination Act 1991 for the actions of Mr Brown in that: -- 9 of 36 -- 8 (a) In reaching the said decision the President considered and applied s.164(1) of the Corporations Law when the said section was not relied upon by the Respondent or otherwise raised as an issue in the proceedings; (b) In reaching the said decision by application of s.164(1) of the Corporations Law, the President failed to accord natural justice to the Appellant as the Appellant was not heard on the issue. 3. Erred in law in finding that the Respondent [the complainant] was entitled to act on the assumption that Mr Brown was the agent of the Appellant by application of s.164(1) of the Corporations Law, in that: (a) the Respondent was not a person having dealings with the Appellant; (b) the Respondent was precluded from making the said assumption by operation of s.164(4) of the Corporations Law. The same grounds apply in respect of the Doyle appeal making a reference to "Mr Riley" in lieu of "Mr Brown". The Powers of the Court Pursuant to s.218 of the Act the court on the hearing of an appeal may "(a) affirm, vary or quash the order or decision appealed against; or (b) substitute, or make, in addition, any order or decision that should have been made in the first instance; or (c) remit the matter to the Tribunal for further -- 10 of 36 -- 9 hearing or consideration or for re-hearing; or (d) make any order as to costs or any other matter that the court considers appropriate." The orders sought by the appellants are that the decisions in each complaint be quashed, that those complaints be dismissed and that the respondents pay the appellants' costs of and incidental to the respondents' complaint to the Anti- Discrimination Tribunal and of the appeal. The Tribunal's Reasons The Tribunal's reasons were handed down when she made her orders on 26 July 1995 and are accepted to be reasons for the purpose of s.211. The right of appeal from a decision of the Tribunal is limited to questions of law, s.217(1). Section 211 provides that a party may ask the Tribunal for reasons which must be provided within 28 days and s.217(2) anticipates that if there is to be an appeal there will be written reasons. There would appear to be no statutory requirement to give reasons either written or oral when making an order unless requested to do so but nonetheless when those reasons were given it was accepted that s.27(B) of the Acts Interpretation Act (1954) applies. It provides "If an Act requires a Tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression "reasons", "grounds" or another expression is used), the instrument giving the reasons must also - (a) set out the findings on material questions of fact; and (b) refer to the evidence or other material on which those findings were based." The nature of the Tribunal, the qualifications for office as a -- 11 of 36 -- 10 member and its powers set out in Chapter 7 Part 2 and Chapter 9 Part 2 of the Act indicate that it resembles a court of law although it is not bound by the rules of evidence, s.208. There is a wealth of authority on the obligation to provide reasons and the rationale for that obligation with respect to both judicial officers and tribunals, see, inter alia, Pettitt v. Dunkley [1971] 1 NSWLR 376; Housing Commission of New South Wales v. Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378; Public Service Board of New South Wales v. Osmond (1986) 159 CLR 656; Soulemezis v. Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247; Dornan v. Riordan (1990) 95 ALR 451; Hon Justice Kirby "Reasons for Judgment: "Always permissible, usually desirable and often obligatory" in (1994) 12 AB Rev 121; H Catzen "Inadequacy of Reasons as a Ground of Appeal" in [1993] 1 Aust. J Ad Law 33. In Soulemezis Mahoney JA said at p. 269 "First, the reasons given must be sufficient, where there is a right of appeal, to allow that right to be exercised. Secondly, the giving of reasons is not limited to cases where there is a right of appeal: there are reasons in the nature of the judicial process which may require that reasons be given as an incident of the decision in question. And, thirdly, the giving of reasons is a normal but not a universal incident of the judicial process: there are some cases, or kinds of cases, where they need not be given. ... I ... see them as applicable in determining what reasoning of fact a judge is under pain of error of law, required to set forth in his judgment." Section 27(B) of the Acts Interpretation Act makes it plain what a tribunal must provide by way of reasons for its decision. Reference to the cases assists in understanding more fully that obligation. Mahoney JA in Soulemezis considered the -- 12 of 36 -- 11 extent to which the reasoning to the conclusions of fact stated in the judgment are required to be detailed. At p. 271 he said "... The law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the train of reasoning to the conclusion." He continued at pp. 272 et seq "In considering what reasons must be given and what a judge does in writing a judgment, it is relevant to distinguish between the essentials and the peripherals. For example, where there is an appeal from his order, it is proper that the judge make apparent those matters which should be apparent if the right of appeal is to be exercised by the unsuccessful party and if the appellate court is to be able to do what, in the particular appeal, it should do. And specific findings may be necessary to ground the power of the trial judge to make the order that he has made. In some cases, the court has power to alter rights of parties if and only if particular jurisdictional facts are found. In such cases, it may be necessary - at least it will be expected - that findings on those facts be made. The failure to find them may, in courts other than superior courts, constitute defects of jurisdiction to which prerogative relief will go." His Honour observed that it will ordinarily be sufficient if by his reasons the judge apprises the parties of the broad outline and constituent facts on which he has acted. His Honour said that it was to mistake the nature of the reasoning process to require that a judge detail the way in which he has reasoned step by step to his conclusion. In Williams v. Bill Williams Pty Ltd [1971] 1 NSWLR 547 at p. 557 Mason JA as he then was observed: "... Where a tribunal at first instance fully and comprehensively states all the facts requisite for the decision, and poses for decision the question -- 13 of 36 -- 12 whether those facts fall within the meaning of a statutory provision, that question, may, in general, be regarded as a question of law. But it sometimes happens that a tribunal at first instance states a number of facts, without making findings on all the issues of fact relevant to the final decision in the case. The decision may then depend on an unexpressed finding of fact, with the consequence that where an appeal lies from the decision on a question of law only, it is not possible to conclude that the error asserted by the appellant is one of law. So also it may happen that the tribunal at first instance is confronted with the task of applying the statutory expression to primary facts in such circumstances that it is reasonably possible to arrive at different conclusions, the question be largely one of degree upon which different minds may take different views. Here, again, it is not possible to conclude that the decision appealed from is erroneous in point of law." In Azzopardi v. Tasman UBE Industries Ltd (1985) 4 NSWLR 139 the majority noted that an error of fact finding would not be elevated to an error of law if based on evidence open to the trial judge even if an appeal court were of the view that the decision on the facts was illogical, perverse or completely unreasonable. Kirby P, as his Honour then was, in Soulemezis at p. 259 said that where there is an appeal only for error of law and the primary judge indicates even in brief terms his processes of reasoning to a conclusion on disputed facts the appellate tribunal may not interfere. But where he does not do so or where the inference from his given reasons establish or suggest a misapplication of the statute the appeal court may intervene for it demonstrates an error of law. His Honour dissented in Soulemezis but only on the application of the principles to the judgment under appeal. In the same case McHugh JA as his Honour then was at p. 281 said -- 14 of 36 -- 13 "In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact in law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute a error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done." His Honour warned that in determining the issue under consideration in the appeal great care needed to be taken that dissatisfaction with the finding of fact did not mislead the court into holding that the judge below had failed to give his reasons for his finding. In Collector of Customs v. Pozzolanic (1993) 43 FCR 208 the Full Court of the Federal Court (Neaves, French and Cooper JJ) said at p. 187 "The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts: Lennell v. Repatriation Commission (1982) 4 ALN N 54 (Northrop and Sheppard JJ); Freeman v. Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 at 164 (Sheppard J); Repatriation Commission v. Bushell (1991) 13 AAR 176 at 183 (Morling and Neaves JJ). The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error; Politis v. Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708 (Lochhart J)." The High Court (Brennan CJ, Toohey, McHugh, Gummow JJ) in Minister for Immigration and Ethnic Affairs v. Wu Shan Liang (1996) 70 ALJR 568 referred to this passage with approval at p. 575. With these observations in mind the reasons for decision -- 15 of 36 -- 14 in each of the appeals may be considered. The Brown Appeal The Tribunal set out a summary of the objectionable conduct by Mr Brown towards Ms Moore prior to the Act coming into force. She then set out the relevant provisions of ss. 117, 118, 119 and 120 of the Act describing the purpose of the Act, its prohibition of sexual harassment, the definition of sexual harassment and what circumstances might be relevant to a consideration of whether "a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct", s.119(f). The Tribunal made a clear distinction between conduct which occurred prior to 30 June and conduct which occurred after. At p. 4 of the reasons for decision the following appears "There appears little doubt that all of the acts complained of by Ms Moore which occurred prior to 30 June 1992 and which she found unwelcome fall within the definition of sexual harassment as found within the Anti-Discrimination Act 1992. However such acts only became unlawful under the Act if they took place after the Act came into effect and she could only use the complaint procedures put in place once that Act came into effect on 30 June 1992." The Tribunal then noted that Ms Moore had made known to Mr Brown that his remarks and action were unwelcome and that she felt unable to confront him directly because of his position, her need for a job and her reliance upon the Housing Service for accommodation. The Tribunal made reference to complaints by Ms Moore to two directors of the Board and to Mr Riley, the President. She does not identify when those complaints were made. The uncontested material does not do so. -- 16 of 36 -- 15 It was an inference which could have been drawn from that material that the complaints occurred in the months immediately prior to the complaint being made to the Commission on 26 August 1992. Not to state that that inference was being drawn was not a reviewable error. The Tribunal proceeded to deal with the post 30 June conduct. The following appears at p. 5 of the reasons "However the harassment continued. On 20 August 1992 Mr Brown telephoned Ms Moore to discuss a business matter and at the end of the conversation he said to her "how is your 'junoo?'" This was a reference to her vagina and she was extremely embarrassed and uncomfortable after this comment. In cross- examination counsel for Mr Brown asked Ms Moore if she would have resigned when she did if the phone call of 20 August was the only incident which occurred. Ms Moore agreed that she would not have resigned if it was the only incident. However Ms Moore gave evidence which I accept that phone calls similar to the one which occurred on 20 August 1992 occurred at least once a week and accordingly I have no doubt that there were several similar telephone calls during July and August after the Act came into effect. Throughout the course of her employment with the housing service Ms Moore saw Mr Brown frequently at meetings at which he would ask her when he could sleep with her. She was not cross-examined on this point and there is no reason for me not to accept that these meetings continued to occur until the time when Ms Moore resigned" At p. 7 the Tribunal continued "There is no doubt in my mind that the comments made by Mr Brown to Ms Moore after 30 June 1992 represented sexual harassment because they represented unsolicited demands or requests for sexual favours from the other person and remarks with sexual connotations relating to the other person which fall within subparagraphs (b) and (c) of s.119. Further it is clearly the case that the circumstances were such that a reasonable person would have anticipated the possibility that the other person would be offended humiliated or intimidated by the conduct. It is relevant to those circumstances that Mr Brown was in a more powerful position within the housing service than Ms Moore. Ms Moore had made -- 17 of 36 -- 16 clear to Mr Brown that the conduct was offensive and unwelcome, and therefore it is clear that Mr Brown must have anticipated at least the possibility that Ms Moore would be offended, humiliated or intimidated by his behaviour. The only action which she felt she was able to take to end the harassment was to resign her job, a job she had held for nearly seven years." Mr Dearden submitted that there was no evidence upon which the Tribunal was entitled to make the findings set out at p. 5 of the reasons. In her affidavit Ms Moore swore "From about October 1991 the First Respondent, Mr Brown, made telephone calls to me in which he told me that he was in love with me and wanted my junoo (vagina), and that we could make beautiful love." And in paragraph 4 "Throughout the course of my employment, I saw Mr Brown frequently at meetings at which he would ask me when he could sleep with me. I cannot recall the exact dates of these meetings but they were quite frequent." In cross-examination she was asked by Mr Horneman-Wren for the Housing Service how often the council met during the period when she was the administrator to which she answered "Normally monthly, but sometimes there was meetings that - where a corum wasn't available, so they would be put off, but normally monthly meetings were held". He also asked her "Can you recall precisely when those calls [referring to the telephone calls in paragraph 3 of her affidavit] were received?" She answered "No, because I never took a note of them". In re-examination Ms Moore's counsel asked her over what period of time she received the telephone calls. Ms Moore answered "I am not sure whether it was 1990 or 1991, right up until the Thursday before - before I resigned". She was asked how often she received them and she said at least once a week and that they were along -- 18 of 36 -- 17 the same lines. In submissions Mr O'Gorman, who appeared before the Tribunal on behalf of Mr Brown, submitted that at worse for his client there were some nine comments which occurred after 30 June 1992 consisting of seven weekly telephone calls, one meeting and one conversation on 20 August 1992. The state of the evidence would suggest that the meetings were monthly and the meeting for August took place the day after Ms Moore resigned. The Tribunal commented that Ms Moore was not cross- examined on paragraph 4 of her affidavit but the oral evidence did suggest that the meetings were monthly meetings and therefore it was unlikely that more than one and certainly no more than two meetings occurred after 30 June 1992. For the Tribunal to express "meetings" in the plural in the context of the evidence is not a reviewable error. The conduct of Mr Brown was the same before and after 30 June 1992. There was no need for the Tribunal to express again what that conduct was when turning in the reasons to the period post 30 June. She was entirely justified in concluding that that conduct constituted sexual harassment and indeed there were no submissions to the contrary. If there was a perception that she may have overstated the number of meetings that occurred after 30 June 1992 that is not an error of law. It was the totality of the conduct after 30 June which could be considered by the Tribunal in applying the Act and only that conduct. On a reading of the whole of the reasons there is no suggestion that the Tribunal did not keep post 30 June conduct and the -- 19 of 36 -- 18 evidence describing it in mind. Mr Dearden further submitted, although not a separate ground of appeal, that the Tribunal was not entitled to conclude that the use of the word "junoo" by Mr Brown to Ms Moore constituted language which was offensive within the meaning of s.119 without calling some expert evidence to say that it would be offensive to a person in the position of Ms Moore. Ms Moore swore in paragraph 3 of her affidavit that "the word junoo is well known in indigenous culture as referring to a vagina and I therefore regarded these telephone calls as obscene and offensive". In cross-examination by Mr O'Gorman Ms Moore said that the word "junoo" is a word that she had used herself in the past. It was uncontested that Ms Moore told Mr Brown that such conduct was not acceptable to her. In my view that was sufficient evidence for the Tribunal to conclude that Mr Brown would understand that the use of that expression was offensive to Ms Moore within the meaning of s.119. There was nothing in the conduct of the case which suggested that there would be any ambiguity about the use of such an expression by Mr Brown when speaking to Ms Moore. The proper conduct of the complainant's case did not call for expert linguistic or cultural evidence as to the offensive nature of that expression. There was no error in the Tribunal accepting that the use of that expression in the circumstances was offensive to Ms Moore and was known to be so by Mr Brown. To some extent ground 2 overlaps with ground 1 in as much as it is submitted that the Tribunal demonstrated no basis for -- 20 of 36 -- 19 reaching the conclusion as to the quantum of damages. At p. 10 of the reasons the following appears "In addition Ms Moore should be compensated for the intimidation and humiliation that she suffered at the hands of Mr Brown for which the housing service is also vicariously liable. Because of the effect on her self-esteem and continuing effect on the complainant's trust of male co-workers, I am of the view that $6,500 in general damages should be awarded to reflect the hurt and humiliation suffered after 30 June 1992." At p. 6 of the reasons the Tribunal said "A continuing effect of the harassment in her present employment is that she is extremely reluctant to enter into a position which means that, for example, she would have to travel alone in a vehicle with a male co-worker. When she left her position at housing service she felt humiliated and worthless and she has continued to be affected on an emotional level as a result of the harassment." It was submitted by Mr Dearden that it is an error of law not to show the reasoning whereby the sum of $6,500 was arrived at. He submitted further that there was no basis in evidence for the conclusion that Ms Moore suffered in the way set out after 30 June 1992. In paragraph 10 of her affidavit Ms Moore swore that on receiving the telephone call from Mr Brown on 20 August 1992 she was "extremely embarrassed and uncomfortable". In paragraph 11 she said that prior to 20 August 1992 she was harassed and stressed and approached Mr Riley the President. As I have mentioned it is not entirely clear whether this occurred before or after 30 June. In paragraph 14 Ms Moore swore that since the board took no action against Mr Brown after her complaint "I could not continue working in such stressful conditions". In paragraph 15 Ms Moore said that "As -- 21 of 36 -- 20 a result of the harassment, I was under an extreme amount of stress. I felt humiliated and embarrassed by Mr Brown's conduct and was often in a state of anxiety because of it. I was constantly in fear when I was left in the office on my own that Mr Brown would come into the office and would make every effort to ensure I was never left alone with him." In paragraph 16 Ms Moore swore "I have been affected as a result of the harassment in my present employment in that I am extremely reluctant to enter into a position of vulnerability with a co-worker, for example to go travelling in a vehicle alone with a male co-worker. I have further continued to be affected on an emotional level subsequent to leaving the Black Community Housing Service as a result of this sexual harassment. By the time I finished at the Black Community Housing Service I felt humiliated and worthless. I felt that I needed to change my lifestyle to try and re- establish my confidence in myself." Although the Tribunal does not state in her discussion of damages that the compensation may only be for the effect of conduct occurring after 30 June 1992, that date as the demarcation point for the exercise of jurisdiction has been clearly expressed several times in the course of the reasons and there is no reason to suppose, in a short judgment of 11 pages, that the Tribunal lost sight of this. It then is necessary to consider whether the award of damages of $6,500 for "intimidation and humiliation" is so manifestly excessive as to lead to no other conclusion but that the Tribunal fell into error. An award of damages pursuant to s.209(1)(b) of the Act is an exercise of discretion. In Calder v. Boyne Smelters Limited [1991] 1 Qd. R. 325 Cooper J said at pp. 347-8 -- 22 of 36 -- 21 "When an appeal is brought against the exercise of a judicial discretionary judgment "the existence of an error, whether of law or of fact, on the part of the court at first instance is an indispensable condition of a successful appeal" (per Mason and Deane JJ in Norbis v. Norbis (1986) 161 CLR 513 at 519; see also Wilson and Dawson JJ at 535 and Brennan J at 541). The error must be one that vitiates the original decision (Minister for Aboriginal Affairs v. Peko- Nwallsend at 48 per Mason J with whom Gibbs CJ and Dawson J agreed). That is, the discretionary judgment must be shown to be wrong. This means "in the ultimate analysis and in the absence of any identifiable error of fact or positive law, the appellate court must be persuaded that the order stands outside the limits of a sound discretionary judgment before it intervenes" (Norbis v. Norbis at 520). ... The settled rule, as enunciated by Mason J in Wilson v. Peisley, has three parts: (i) the application of a wrong principle of law; or (ii) a misapprehension of the facts; or (iii) an award which is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered." This is an appeal on a question of law only and it must be demonstrated that the Tribunal acted on a wrong principle of law which has led to an award of damages which is beyond the limits of what the exercise of a sound discretionary judgment could reasonably adopt. Mr Dearden has put before the court a schedule of damages awarded in sexual harassment cases. No submissions were made to the Tribunal as to the appropriate quantum of general damages although submissions were made with respect to loss of wages. Each case must be decided on its own particular facts and the controversy about the extent to which courts of first instance should or should not take into account comparable -- 23 of 36 -- 22 awards of damages has not yet been resolved, see Moran v. McMahon (1985) 3 NSWLR 700 and the discussion in Luntz Assessment of Damages for Personal Injury and Death 3rd edition (1990) p. 507 et seq. In Planet Fisheries Pty Ltd v. La Rosa (1968) 119 CLR 118 the High Court rejected a consideration of comparable awards of damages and stated at p. 125 "It may be granted that a judge who is making such an assessment will be aware of and give way to two correct ideas of fairness and moderation." As many courts have commented, it is difficult to do this without relying upon decisions which are considered comparable, particularly those of appellate or superior courts. The most compelling reason advanced for continuing to support the principle in Planet Fisheries is that the facts in damages cases are infinitely varied. A "range" is generally thought to be a not inappropriate way of making submissions to the tribunal of fact. The schedule of damages awards in sexual harassment decisions which Mr Dearden has produced show, as one would expect, a range from nil for general damages to $50,000 (Bevacqua v. Klinkert (1993) EOC 92-515; 92-516). A schedule from the Australian and New Zealand Equal Opportunity Law and Practice also shows a wide range of amounts for what can be described as general damages. Without an examination of the facts of each or an understanding of the appropriate range which comes from experience and familiarity with that jurisdiction it is difficult to do more than note the diversity of figures and that modest awards seem to be a consistent feature. Ms Richards submitted that after 30 June 1992 Mr -- 24 of 36 -- 23 Brown had to take the complainant as he found her, that is, as a young woman who had been exposed already to conduct which, had the Act been in place, would have been unlawful sexual harassment. She referred to Fares v. Boxhill College of TAFE a decision of the Equal Opportunity Board of Victoria (1992) EOC 92-391 where the Board concluded that the respondents should take the complainant as she came to them with her vulnerable personality when the acts of discrimination occurred and relied on Purkess v. Crittenden (1965) 114 CLR 164 at pp. 171-2 and Watts v. Rake 108 CLR 158 at p. 160. Those matters were not argued before the Tribunal below. What was argued was the extent to which the pre-30 June conduct and its effect could be taken into account in assessing Mr Brown's conduct after that date. Section 119(f) allows the Tribunal to take into account circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct in deciding whether sexual harassment has occurred. Although not stated explicitly in the Tribunal's reasons, in the passage at p. 7 which is set out above, it is implicit that the Tribunal assessed damages against the background of Mr Brown's previous conduct towards Ms Moore and his understanding of her response to that conduct. There was no error, not least because of s.119(f) in approaching the question of damages in that way. I am not persuaded that the award of damages of $6,500 to Ms Moore was so high as to constitute an error law. There is no indication that the Tribunal proceeded on a wrong principle -- 25 of 36 -- 24 and her failure to refer to comparable awards certainly is not an error of law. On one view it may be positively erroneous to do so. The third ground of appeal is that the Tribunal erred in law in awarding the respondent $13,500 in damages for loss of income from 27 August 1992 to 1 May 1994 because there was no evidence that she resigned her employment because of behaviour of the appellant which occurred after 30 June 1992. The Tribunal found that in spite of complaints made to three members of the board of directors nothing had been done to stop the harassment. The evidence did not make clear whether this occurred before or after 30 June. The Tribunal noted that prior to resigning Ms Moore spoke to two other board members after 30 June and told them that if Mr Brown was not stood down from his position while the matter was being investigated by the Commission she would be forced to leave. The Tribunal then noted that since no action was taken by the Board Ms Moore felt that she had no option but to resign since she could not continue to work in such stressful conditions. In cross- examination Ms Moore was asked by Mr O'Gorman if the telephone conversation on 20 August 1992 were the only incident would she have resigned on 26 August and she responded that she would not if it was the only incident. Mr Dearden has focused upon that answer without including the other conversations which the Tribunal inferred took place at least once per week from 30 June 1990 until 27 August. The Act permits reference to be had to the circumstances of the conduct. It is not possible in -- 26 of 36 -- 25 causative terms to separate the cumulative effect of what had gone before 30 June with what happened afterwards. Because of s.119(f) it is not necessary to do so. That is not to say that the Tribunal impermissibly took into account the pre-30 June 1992 conduct but recognised that a continuation of that conduct, after it became unlawful, was a sufficient cause of Ms Moore's resignation, Simonius Vischer & Co v. Holt [1979] 2 NSWLR 322. It is true that the Tribunal does not articulate Mr Brown's responsibility for Ms Moore's resignation in terms of causation, however it seems plain from her findings on p. 5 that the Tribunal did not fall into error in attributing to pre-30 June conduct the cause of her resignation. The Tribunal said at p. 5 "In cross-examination counsel for Brown asked Ms Moore if she would have resigned when she did if the phone call of 20 August was the only incident which occurred. Ms Moore agreed that she would not have resigned if it was the only incident. However Ms Moore gave evidence which I accept that phone calls similar to the one which occurred on 20 August 1992 occurred at least once a week and accordingly I have no doubt that there were several similar phone calls during July and August after the Act came into effect." The quantum of $13,500 or the duration for which it was awarded was not a ground of appeal. The reasons are adequate and sufficient on the relation between the conduct of Mr Brown and the resignation of Ms Moore to convey the reasoning process of the Tribunal. I have concluded that no error of law has been revealed and Mr Brown's appeal ought to be dismissed with costs. The Housing Service Appeal -- 27 of 36 -- 26 (i) The Moore Appeal The Housing Service submits that the Tribunal erred in law in deciding that the service was vicariously liable pursuant to s.133 of the Act for the actions of Mr Brown in that the Tribunal considered and applied s.164(1) of the Corporations Law when it was not relied upon nor otherwise raised as an issue in the proceedings. It was submitted that there was thus a failure to accord natural justice to the Housing Service. Alternatively the Tribunal erred in law in finding that Ms Moore was entitled to act on the assumption that Mr Brown was the agent of the Housing Service by application of s.164(1) of the Corporations Law in that she was not a person having dealings with the Housing Service and was precluded from making that assumption by virtue of s.164(4) of the Corporations Law. The Tribunal commenced this part of her reasons for decision at p. 7. She made a reference to s.132 of the Act and set out the provisions of s.133(1) which provides that "If any of a person's workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both." She referred to the provisions of s.133(2) which provides that it is a defence to a proceeding for a contravention of the Act arising under subsection (1) if the person proves on the balance of probabilities that it took reasonable steps to prevent the worker or agent contravening the Act. The Tribunal mentioned that although "worker" is not defined in s.4 "work" is and includes work on a voluntary or unpaid basis. She -- 28 of 36 -- 27 mentioned that Mr Brown could fall within the definition of worker but then goes on to state that the claim against him was made on the basis that the sexual harassment occurred while he was acting as agent of the Housing Service being its director and treasurer and at its premises or otherwise in contact with Ms Moore in his capacity as treasurer and director. She referred to the definition of "agent" in the Act and then considered s.164 of the Corporations Law. It is appropriate to set out the whole of her reasons on this point. "Section 164(1) of the Corporations Law provides that a person having dealings with a company is entitled to make certain assumptions about those dealings and any proceedings in relation to those dealings, and any assertion by the company that the matters that the person is so entitled to assume were not correct shall be disregarded. Those assumptions include the assumption that a person who is held out by the company to be an officer or agent of the company has been duly appointed and has authority to exercise the powers and perform the duties customarily exercised or performed by an officer of the kind concerned and that the directors, principal executive officer, the secretaries, the employees and the agents of the company properly perform their duties to the company. The company held Mr Brown out to be its treasurer and a director. It is within the usual powers of the treasurer to speak to the administrator about financial matters and to attend meetings of the company. Ms Moore was entitled to act on the assumption that Mr Brown was acting as agent of the company. This section of the Corporations Law gives statutory form to the doctrine of implied, usual and ostensible authority. As I have found, the sexual harassment of Ms Moore by Mr Brown occurred while he was performing his duties as treasurer. As I have found that Mr Brown was acting as agent of the company, it follows that the company was vicariously liable for his actions unless the defence given by s.133(2) is made out on the balance of probabilities by the respondent. That defence is that the respondent took reasonable steps to prevent the agent contravening the Act. As there is no evidence of any steps taken by the housing service to -- 29 of 36 -- 28 prevent Mr Brown from acting in the way in which he did to Ms Moore, this defence has not been made out. On the contrary, evidence was given by the complaint that at no stage did the housing services have an articulated policy on sexual harassment. There were no documents on the policy and no seminars given nor any education given to the people that working at the Service to communicate that a policy was in existence. This was the case even though there had been an earlier complaint made by another woman against another man who worked there." It was conceded by counsel for the Housing Service in making his submissions to the Tribunal that when Mr Brown telephoned Ms Moore and discussed the business of the Housing Service with her he was doing so as its director or treasurer. He did not concede that Mr Brown was therefore acting as agent but on the evidence that was plain. Before me Mr Horneman-Wren conceded that the concession made by him to the Tribunal included that when Mr Brown discussed Housing Service matters with Ms Moore he was doing so as the agent of Housing Service. The Tribunal makes no reference to that concession in her reasons. The Corporations Law was not raised in the pleadings or at any time in counsel's submissions or in the exchanges between the Tribunal and counsel in the course of the hearing. As Mr Horneman-Wren submitted, s.164 purports to give statutory effect to the rule in Turquand's case, (1856) El & Bl 327; 119 ER 886 ("the indoor management rule"). It is thought to go further than give it mere statutory effect and to correct some of the shortcomings in the common law, BNZ v. Fiberi (1993) 14 ACSR 736 per Kirby P (as his Honour then was) at 740. It is unnecessary here to consider the extent to which a tribunal may refer to or rely upon statutory provisions or -- 30 of 36 -- 29 authorities in reaching a decision which have not been raised with or by the parties either in the course of the hearing or before decision. There is good reason why in this case s.164 ought to have been raised as a matter of evidence if it were to be raised at all. No opportunity was given to the Housing Service to make submissions about whether Ms Moore in any relevant sense had "dealings" with Housing Service. However nothing on the facts suggests that Ms Moore in her contacts with Mr Brown was engaged in "dealings" with the Housing Service. She was an employee of the company and, as far as the evidence would suggest, discussed with Mr Brown matters pertinent to the management of the company internally. In Barclays Finance Holdings Ltd v. Sturgess (1985) 3 ACLC 662 Wood J at p. 667 expressed the opinion that "dealings" referred to a transaction with a company. The provision concerns certain assumptions which a stranger to a company may make about the regularity of its internal management. See also Northside Developments Pty Ltd v. Registrar-General (1990) 170 CLR 146. Even if the section were to apply, which, in my view, it does not, the person who calls it in aid must be qualified to do so and be not otherwise precluded by actual or presumed notice. In Bell Resources Holdings Pty Ltd v. Commissioner for ACT Revenue Collection (1990) 22 FCR 178 von Doussa J concluded that a claim to the benefit of the section must be raised as an issue in the proceedings. Ms Richards submitted that s.208 of the Act, which provides that the Tribunal is not bound by the rules of evidence and may inform itself on any matter as it -- 31 of 36 -- 30 considers appropriate, permits the Tribunal to have reference to matters not raised before it in reaching a decision. Section 208 makes clear the way in which the Tribunal is to conduct itself. It must act according to equity, it may receive in evidence a report of the Commissioner, but only if the Commissioner has provided a copy to each party to the hearing, and may hold a hearing in the absence of a party who has given reasonable notice to attend but who failed to do so without providing good reason, s.208(b), (f) and (h). It does not empower the Tribunal to rely upon matters not raised with the parties. I have no doubt that it was an error of law on the part of the Tribunal to rely on s.164 of the Corporations Law in reaching her decision. However it is necessary to examine her decision to see if the reliance upon s.164 was a necessary aspect of her finding of vicarious liability against the Housing Service. Mr Horneman-Wren has submitted that should I find that the Tribunal erred in applying s.164 then no finding of vicarious liability could be made. It seems clear that the reliance upon s.164 was an essential link in the path of the Tribunal's reasoning that Mr Brown was acting as agent of the company. It was, in my view, quite unnecessary to do so to fix the Housing Service with vicarious liability. The intention of the legislature apparent in the Act is to make an employer or principal vicariously liable for the contravention of the Act by its workers or agents, s.132. The factors which limit that liability are that the unlawful -- 32 of 36 -- 31 conduct must occur in the course of work or while acting as an agent and, by way of defence, if the respondent proves that it took reasonable steps to prevent the worker or agent contravening the Act. For the Housing Service to be found vicariously liable there must be a finding that the contravention occurred while Mr Brown was acting as agent. The uncontroverted facts make clear that Mr Brown attended at the Housing Service and made contact with Ms Moore or made telephone calls to her in his capacity as treasurer and director of the Housing Service and thus, as agent of the Housing Service. The unlawful conduct took place on those occasions clearly when Mr Brown was acting as agent. There was no evidence or submission that the exculpatory provisions of s.132(2) applied. What then is the appropriate course which this Court should take? There is power to remit the matter to the Tribunal for further consideration in the light of these reasons on the question of agency. That would be productive of more cost and delay. The complaint was made on 27 August 1992 to the Commission, conciliation took place unsuccessfully and in November 1993 the complainant requested the Commission to refer the complaint to the Tribunal. The hearing did not take place until May 1995. Any explanation for the delay is not to the point. These events occurred many years ago and of their nature it is preferable for all concerned that they not be prolonged any further. The powers of this court on the hearing of an appeal as expressed in s.218 are wide. The court may -- 33 of 36 -- 32 affirm, vary or quash the order or decision appealed against or substitute or make in addition any order or decision that should have made in the first instance or remit the matter to the Tribunal for further hearing or consideration or for re- hearing. In my view there was ample evidence upon which the Tribunal could have found that Mr Brown was agent of the Housing Service and was acting as agent when the unlawful conduct occurred and, indeed, the Tribunal did make such findings of fact but in error attached them to s.164 of the Corporations Law. In my view the appropriate course is to affirm the order made by the Tribunal against the Housing Service. Ground one of the appeal was abandoned and ground two was essentially successful. An order for costs might in the ordinary course be made against the respondent. The Tribunal was not led into error by any conduct or submission on the part of the respondent and it seems appropriate that an indemnity certificate pursuant to the Appeal Costs Fund Act 1973, if such an application is made, should issue. The Tribunal is a "court" within the meaning of s.4 of that Act being "any board, other body or person from whose decision there is an appeal to a superior court on a question of law" and s.15 of the Act otherwise applies. (ii) The Doyle Appeal Mr Riley was the president and a director of the Housing Service. There is no submission or ground of appeal that there -- 34 of 36 -- 33 was any error in the Tribunal's finding that Mr Riley engaged in conduct which contravened the Act in relation to Ms Doyle after 30 June 1992. The Tribunal's reasons for making the Housing Service vicariously liable for Mr Riley's conduct parallel those in the Moore matter. The Tribunal found that whenever Mr Riley attended at the office of the Housing Service he transacted the business of the Service. It was then that the unlawful conduct occurred. The Tribunal concluded that that conduct was governed by s.164 of the Corporations Law. It is not necessary for me to canvass that again. The Tribunal clearly fell into error in so doing. However the finding that the "sexual harassment of Ms Doyle by Mr Riley occurred while he was performing his duties as president and director" is a clearer expression of agency than occurred in the Brown matter and I have no hesitation, whilst recognising the error, in affirming the order of the Tribunal against the Housing Service. If the application is made, again it is appropriate that an indemnity certificate pursuant to the Appeals Costs Fund Act issue in favour of the respondent. Orders The orders are 1. The appeal by Norman Brown in Appeal No 170 of 1995 be dismissed and the order of the Tribunal affirmed. 2. Further order that the appellant Brown pay the respondent Moore's costs of and incidental to the appeal to be taxed. 3. The appeal by the Black Community Housing Service (Qld) Ltd in appeal No 174 of 1995 against Doyle be dismissed -- 35 of 36 -- 34 and the order of the Tribunal be affirmed. 4. The appeal by the Black Community Housing Service (Qld) Ltd in appeal No 175 of 1995 against Moore be dismissed and the order of the Tribunal be affirmed. 5. The respondents Doyle and Moore pay the appellant's costs of and incidental to the appeal and order that an indemnity certificate pursuant to the Appeals Costs Fund Act 1973 issue in favour of the respondents Doyle and Moore. -- 36 of 36 --