Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82

FEDERAL COURT OF AUSTRALIA

Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 Citation: Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82

Appeal from: Richardson v Oracle Corporation Australia Pty Limited [2013] FCA 102 Richardson v Oracle Corporation Australia Pty Limited (No 2) [2013] FCA 359

Parties: REBECCA RICHARDSON v ORACLE CORPORATION AUSTRALIA PTY LTD (ACN 003 074 468) and RANDOL TUCKER

File number: NSD 438 of 2013

Judges: KENNY, BESANKO AND PERRAM JJ

Date of judgment: 15 July 2014

Catchwords: HUMAN RIGHTS – discrimination – causation – whether sufficient causal nexus between sexual harassment and the effects of workplace investigation – whether sufficient causal nexus between sexual harassment and alleged psychological injury suffered as a result of complaint to AHRC and subsequent litigation – whether "false denials" of sexual harasser provided causal link between unlawful conduct and harm suffered rebutting denials in various fora – causation not made out. HUMAN RIGHTS – discrimination – causation – whether appellant left employment 'voluntarily' – whether appellant demoted by employer - whether sufficient causal nexus between sexual harassment and decision by appellant to leave workplace – whether analysis of causation in Medlin v State Government Insurance Commission (1995) 182 CLR 1 applied to decision by appellant to leave employment – Medlin applied – causation made out. HUMAN RIGHTS – discrimination – indirect discrimination – whether higher prevalence of women as sexual harassment complainants rendered workplace policy imposed on complainants generally as one "disadvantaging persons of the same sex as the aggrieved person" – proper starting point for analysis of indirect discrimination discussed – indirect discrimination not made out. DAMAGES – assessment of general damages – whether trial judge assessed statutory damages under s 46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth) by applying tortious principles – whether damages pursuant to AHRC Act can be awarded to partially compensate for loss - proper approach to assessment of damages under s 46PO(4)(d) discussed. DAMAGES – assessment of general damages – whether trial judge assessed appellant's injuries solely by reference to ability to work – whether trial judge assessed general damages by reference to nature of sexual harassment – no error disclosed in trial judgment. DAMAGES – assessment of general damages – damages for diminished sexual relationship as a result of sexual harassment – decline of relationship discussed by trial judge with reference to a "variety of factors" always operating in a relationship – finding of trial judge overturned - approach to damages and causation where multiple factors potentially at large in recognised loss discussed – damages awarded for diminished sexual relationship. DAMAGES – assessment of general damages – whether award of damages manifestly inadequate – damages awarded pursuant to s 46PO(4)(d) fundamentally compensatory in nature – nature of damages for sexual discrimination and sexual harassment discussed - damages manifestly inadequate. DAMAGES – assessment of economic damages – whether trial judge erred in method for calculation of damages – recovery of damages for foregone chance or opportunity - calculating base salary and damages where projected earnings and promotion prospects are uncertain – assessing entitlement to discretionary bonuses – standard of proof - need to assess the circumstances of past occurrences to assess their utility as a predictive tool – challenge to calculation not made out. COSTS – offer of settlement attracted renewed relevance as result of appeal outcome. Legislation: Anti-Discrimination Act 1977 (NSW) Australian Human Rights Commission Act 1986 (Cth) Disability Discrimination Act 1992 (Cth) Equal Opportunity Act 1984 (Vic) Equal Opportunity Act 1995 (Vic) Federal Court Rules 1979 (Cth) Federal Court Rules 2011 (Cth) Sex Discrimination Act 1984 (Cth) Sex Discrimination Amendment Act 1995 Trade Practices Act 1974 (Cth)