FEDERAL COURT OF AUSTRALIA Worsley-Pine v Kathleen Lumley College [2001] FCA 818 SEXUAL HARASSMENT – whether Residential College is liable for alleged sexual harassment by college residents against applicant DISCRIMINATION – whether the Residential College discriminated against the applicant because of her gender in the provision of accommodation WORDS AND PHRASES – "Educational Institution" Sex Discrimination Act 1984 (Cth) ss 3(1), 23, 28A, 94, 105, 106 DEBORAH WORSLEY-PINE v KATHLEEN LUMLEY COLLEGE INCORPORATED NO S 52 OF 2000 O'LOUGHLIN J ADELAIDE 29 JUNE 2001 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 52 OF 2000 BETWEEN: DEBORAH WORSLEY-PINE APPLICANT AND: KATHLEEN LUMLEY COLLEGE INC RESPONDENT JUDGE: O'LOUGHLIN J DATE OF ORDER: 29 JUNE 2001 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 52 of 2000 BETWEEN: DEBORAH WORSLEY-PINE APPLICANT AND: KATHLEEN LUMLEY COLLEGE INC RESPONDENT JUDGE: O'LOUGHLIN J DATE: 29 JUNE 2001 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 On 11 May 2000 the applicant in these proceedings, Ms Deborah Worsley-Pine, an unrepresented litigant, lodged an application in this Court alleging that the respondent, Kathleen Lumley College Inc ("the College"), had unlawfully discriminated against her. She has also alleged that the College is vicariously responsible for the conduct of a Mr Michael Robins. Ms Worsley-Pine has alleged that she was the victim of sexual harassment by Mr Robins at the time when they were both residents in the College. The College, which is affiliated with the Adelaide University, is a residential College for post-graduate students. Ms Worsley-Pine was a resident of the College from September 1996 to April 1997. Mr Robins was a resident in the College in 1997 when the sexual harassment is said to have occurred. 2 In her application to the Court, Ms Worsley-Pine indicated that she had instituted proceedings pursuant to the Sex Discrimination Act 1984 (Cth) ("the Act"). She then listed in attachment "A" to her application several provisions of the Act that, so she claimed, would be relevant to this application. One of the provisions of the Act to which Ms Worsley-Pine referred in her attachment was par 23(1)(c) of the Act. That provisions is as follows: "(1)` It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person's sex, marital status, pregnancy or potential pregnancy: (a) … (b) in the terms or conditions on which accommodation is offered to the other person; or (c) by deferring the other person's application for accommodation or according to the other person a lower order of precedence in any list of applicants for that accommodation." That, as is evident from a reading of the provisions, relates to discrimination, and her evidence was directed to an allegation of discrimination with respect to the accommodation that was allotted to her when she took up residence in the College. 3 The next provision in the Act that was referred to in her attachment "A" was s 28A – and that refers, not to discrimination, but to sexual harassment. Ms Worsley-Pine also attached to her application a copy of her initial letter of complaint. That letter, ("the letter of complaint") which was dated 15 July 1997, was addressed to the Equal Opportunity Commission. However, the letter dealt only with her allegations of sexual harassment. There was no reference to any discriminatory conduct by the College with respect to her accommodation whilst she was a resident at the College. 4 Ms Worsley-Pine called her consulting psychiatrist, Dr Bradley to give evidence on her behalf. I have no reason to doubt Dr Bradley's evidence and her opinions. The history that she extracted from Ms Worsley-Pine was, in general terms, consistent with the oral and written evidence that Ms Worsley-Pine advanced in Court. I am satisfied that Ms Worsley-Pine has suffered a major depressive illness with suicidal tendencies. Dr Bradley also reported in detail on Ms Worsley-Pine's shocking family history of violence, sexual abuse and sexual deviance. However, Ms Worsley-Pine was never personally the victim of this conduct (which was directed to one or other of her siblings) and some of it was not known to her until a later date. Dr Bradley was satisfied that neither her past family history nor her genetic disposition nor her sexual identity have contributed to her depression. I accept Dr Bradley's opinion that her depression is attributable, if not wholly, then at least substantially, to the sexual harassment that she suffered during the period of her residence at the College. That harassment, as will become apparent, would be regarded by many as incidents of small consequence. Sadly, however, because of her fragile personality, they were incidents that she was unable to handle. 5 Dr Medlin, the Chairman of the College Council and Dr Clements, the Master of the College, also gave evidence. Dr Medlin was called by Ms Worsley-Pine, but Dr Clements was a witness for the College. Both men reacted adversely to Ms Worsley-Pine's complaints, Dr Medlin perhaps more so. Both rejected any suggestion that there was a culture of sexual harassment in the College. Dr Clements said that in his 20 years as Master he had been faced with only one other formal complaint about sexual harassment and another informal complaint on the same subject. I accept this evidence. 6 The evidence of Dr Medlin and the evidence of Dr Clements has satisfied me that the College is residential only: it is not an educational institution in terms of s 4 of the Act. It does not organise lectures or tutorials or offer educational assistance that are commonplace in University Colleges for undergraduates. discriminatory conduct 7 During the course of her evidence, Ms Worsley-Pine referred to her accommodation at the College. The first mention appeared at p 10 of the transcript when she commented that she had to share a bathroom with seven men. She expanded on that subject on the next page: "I never understood why I was placed in the accommodation I was placed in. There were other rooms available. In fact, one cottage I think had three rooms available. Another cottage had a couple of rooms and indeed there was a women's cottage which I think had been established to provide to Muslim women if the need arose. There were rooms in that cottage and I just don't understand why I was put in such a dangerous, risky situation given that the college had had sexual harassment in the past. They put me in a very risky situation." 8 Counsel for the College objected to that passage of her evidence claiming that it was not relevant. However, it seemed to me, despite the absence of reference to the subject in her letter of complaint, that I should let her tell her story and decide questions of relevance at a later stage. Ms Worsley-Pine said that she made no complaint to the College about her accommodation, but that she did ask why she had been given that particular accommodation. She said that she was told that it was the only accommodation that was available. She did not believe that answer. 9 Dr Clements explained that there were two types of accommodation in the College. The first, and least preferred, comprised seven cottages with individual bed-studies; the occupants shared toilet and bathroom facilities. Then there were private rooms with en-suite facilities in other buildings. There was a policy that newcomers initially had to take up accommodation in the cottages. The residents were, however, invited to place their names on a waiting list and as a private room became available, the person whose name was at the top of the list had the first opportunity to move to the vacated room. Dr Clements denied Ms Worsley-Pine's assertion that there were dedicated areas in the College for female residents. In this confrontation I accept Dr Clements' evidence in preference to that of Ms Worsley-Pine. Furthermore, in accepting Dr Clements' evidence about the room waiting list, it refutes any suggestion that the College discriminated against her in relation to accommodation. Her complaint that she was required to live in a cottage with male residents occurred – not because of any discriminatory conduct by the College – but because that happened to be the configuration of the cottage at the time of her entry into residence at the College. 10 Ms Worsley-Pine gave evidence not only concerning the conduct of Mr Robins, but also the conduct of other unnamed people at the College. She then submitted that if her evidence was to be accepted it would be evidence that was entirely consistent "with the fact that women are overwhelmingly the victims of sexual harassment". She added that she was harassed a number of times by separate male residents at the College and then she postulated that this harassment constituted a term or a condition within the meaning of par 23(1)(c) of the Act. She asked, rhetorically: "Is it not true that for myself and previously for other women residing at (the College) that the likelihood of being subjected to sexual harassment was very real?" In my opinion there is no substance in this submission. In the first place, there was no evidence before the Court that could possibly justify a finding of ongoing sexual harassment occurring within the College. That being the case, the whole basis of Ms Worsley-Pine's submission collapses. 11 In her final submissions, Ms Worsley-Pine referred and relied upon subs 3(c) of the Act in support of her claim that she had been the victim of discrimination. Subsection 3(c) states that: "The objects of this Act are: … (c) to eliminate, so far as is possible, discrimination involving sexual harassment in the workplace, in educational institutions and in other areas of public activity; and …" 12 Ms Worsley-Pine submitted, but without authority to support her submission, that the College is an area of public activity. I do not agree; the evidence that was led during the course of the hearing points to the College being a private residential college only. 13 The next argument that was advanced by Ms Worsley-Pine was based upon s 105 of the Act. That section provides as follows: "A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Div 1 or 2 of Pt II shall, for the purposes of this Act, be taken also to have done the Act. Division I deals with 'discrimination in work' and Div II deals with "discrimination in other areas" and includes s 23. The contents of this section cannot assist Mr Worsley-Pine. In order for it to operate, there must be an act of discrimination because of one of the proscribed reasons. I have concluded, based on the evidence that was before the Court, that no such act of discrimination with respect to accommodation or otherwise has taken place. 14 There was nothing further in Ms Worsley-Pine's evidence that would add to the evidence that I have noted. There was nothing to which she could point which would faintly suggest that in some way she had been the victim of some form of discrimination by the College in her allocation of accommodation. 15 Before turning to the question of sexual harassment, it is necessary to mention that Ms Worsley-Pine raised, for the first time, in her final submissions, an issue of "victimisation". Referring to s 94 of the Act she argued that the manner in which the College treated her subsequent to her making her complaint was unfair. She said that this was evidenced by unnecessary delays, by Dr Medlin's accusation that her complaint was vexatious, by the College's breach of its own policy guidelines and procedures and, finally, because of "various irregularities in the investigative process". These matters were not raised by Ms Worsley-Pine in her application, nor were they raised by her in her evidence. The College has had no opportunity to consider these accusations, nor to answer them. It would be unfair to permit Ms Worsley-Pine to advance them at this late stage. In any event I consider that they are without substance for the reasons given elsewhere. sexual harassment 16 When Ms Worsley-Pine returned to the College in February 1997, after the summer break, she met Mr Robins, a recent arrival from the United Kingdom. The College was small; there were only seventy-six residents and Ms Worsley-Pine and Mr Robins were two of the only three residents in the College who smoked. That factor, plus the small size of the College, meant that there were numerous occasions when they were in social contact. Ms Worsley-Pine said that after a while she became uneasy about the attention that Mr Robins was giving her. He was prone to touch her – to put his arm around her – and generally to make body contact. 17 Ms Worsley-Pine was able to nominate 12 March 1997 as the date when Mr Robins approached her, sat down next to her and, uninvited, placed his hand on her knee. It was then that she told him that she was committed to a relationship. She said that in the hope that it might persuade him to leave her alone. Her tactic was not successful however. On a later occasion, she complained that Mr Robins, in the courtyard of the College, and in full view of other students, picked her up bodily. 18 The College is situated in Finniss Street North Adelaide and there is a hotel in the street immediately opposite the College. It is a favoured meeting spot for the residents. Ms Worsley-Pine said that in mid March she was playing pool in the hotel; she was bending over the pool table when Mr Robins began pulling her jeans "by my belt at the back". Ms Worsley-Pine said that the position deteriorated to the point where Mr Robins spoke openly of them having a sexual relationship. She said that she repeatedly rejected his overtures, repeating that she was already in a relationship with another person. 19 On one occasion, an incident occurred between the two that lead to Ms Worsley-Pine lodging a formal complaint with the police. It happened in the kitchen of another resident on Easter Sunday. According to Ms Worsley-Pine, Mr Robins was making a nuisance of himself – forcing her to sit on his knee and pulling at her brassiere strap. Then, so she said, he poured some beer over her and she retaliated. The position worsened until he spat wine in her eye, causing her pain. According to Ms Worsley-Pine, the police charged Mr Robins with assault. However, Ms Worsley-Pine elected to write the police asking them to withdraw the charge. 20 Some few weeks after the Easter Sunday incident, Ms Worsley-Pine said that she was in the company of another student, Dwayne Nicholls; they were dancing. It was the night of the election for positions to the Residents' Association. Mr Robins appeared; he put his hands on her shoulders and pulled her around towards him. She said: "Don't touch me. Don't push me. I am sick of you touching me and pushing me around …" She said that he responded, calling her a "fucking uptight lesbian". At this point, another student intervened, stepping between them, and Mr Nicholls then escorted her to her room. 21 The next morning she saw Dr Burkhardt Polster; he had been elected President of the Association the night before. She told him: "I've had enough. I've had enough and I'm going to the police and going to complain and I just can't take it any more." She said she then left the College and found other accommodation. 22 Mr Robins' conduct, of which Ms Worsley-Pine now complains, commenced within a few weeks of his arrival at the College in February 1997 and continued up to the night of the Election which was in late March. Ms Worsley-Pine conceded that in that period of a month or so she did not register any form of complaint about Mr Robins with anyone in authority in the College. 23 Ms Worsley-Pine said that the College had never given her any literature on the subject of sexual harassment, nor had she ever seen any literature within the College. She said she made a particular point on 21 April 1997 of studying the contents of the College's notice board; she nominated the items that appeared on it. There was nothing on sexual harassment. The next morning however, she noted that a leaflet on sexual harassment had been pinned to the board. She said that it was a copy of the leaflet that she had seen at the Equal Opportunity Office at the University when she had earlier complained about Mr Robins' behaviour. 24 Contrary to Ms Worsley-Pine's understanding, the College did have a Sexual Harassment Policy: Ex A2. It was a policy that the College had implemented some years before her arrival; it was based on the policy that had been adopted by the University of Adelaide. The minutes of the College's Council meeting on 15 September 1993: Ex A3: discussed the subject. "Dr Clements informed members that the Chair had taken action following a complaint by a resident. A Sexual Harassment Committee had been formed and the Convenor had appointed a Conciliator to mediate between the parties. The attempt to reach a reconciliation is this matter is now proceeding. The Master explained that the College follows the policies and procedures of the University of Adelaide and a copy of the policy has been placed on the noticeboard. Mr Wills suggested it might be desirable to have a standing committee. Dr Clements agreed and Mr Collison moved that the present Sexual Harassment Committee become a standing committee. This was seconded and carried by Council." 25 Exhibit A4 is a statement of the College's "Rules and Customs". It is in the following terms: "As a community of adult scholars, all of whom are engaged in post graduate study or work experience, Kathleen Lumley College needs only one overriding rule _ THAT ALL CONDUCT THEMSELVES IN A MANNER WHICH IS NOT LIKELY TO GIVE OFFENCE TO FELLOW RESIDENTS, OR TO HINDER THEIR ABILITY TO PURSUE THEIR STUDIES AND ENJOY THE FRIENDSHIP OF A COMMUNITY OF SCHOLARS. The college attempts to provide an environment in which no resident is harassed or feels threatened in any way by another resident or by people from outside the College. In this connection the College has specific policies such as a sexual harassment policy. Any resident who is any way harassed should see the Master immediately. In the case of sexual harassment the College's policy is posted on the notice board. The two resident members at the College's Sexual Harassment Committee are the Master and Lucinda Deane. Any resident should feel free to approach these two committee members at any time." 26 Ms Worsley-Pine said that she was never given a copy of the College's Rules and Customs. She said that she first saw them through the discovery process in this litigation. 27 As I have said, Ms Worsley-Pine wrote her letter of complaint dated 15 July 1997 to the Equal Opportunity Commission; she also delivered a copy of the letter, but dated 18 July, to the College. Exhibit A6 is the College's reply dated 21 July informing Ms Worsley‑Pine that the "College's established sexual harassment procedures will be activated" and that she will be further advised in due course. The College further responded to Ms Worsley-Pine on 29 August 1997 asking: · Did she wish her complaint to be investigated? · If so she should lodge a formal complaint "in accordance with section 5 of the Sexual Harassment Complaint Resolution procedures" (a copy of which was enclosed) · The complaint when received would be referred to a Sexual Harassment Panel which would determine whether "it is able to proceed with the investigation". · If the Panel so determines, the details of the complaint will be given "to the person complained about who will then have the opportunity to respond …" Ms Worsley-Pine responded on 3 September 1997 pointing out that the first sentence of her letter of complaint said: "I wish to lodge a complaint of sexual harassment against Mr Michael Robins in relation to a series of incidents which occurred at Kathleen Lumley College." 28 However, what Ms Worsley-Pine overlooked was the fact that her letter of complaint referred, not only to Mr Robins' conduct, but also to the conduct of other residents. She was indirectly alert to that fact in her final submissions because she was there at pains to emphasise that there were a total of twenty complaints referred to in her letter of complaint. She tallied up that fifteen of those related to the conduct of Mr Robins, but the balance were against other unnamed residents. It was not unreasonable for the College to ask, in effect, whether her complaint was limited to the conduct of Mr Robins or whether it extended to the conduct of others. 29 Ms Worsley-Pine said that following upon her leaving the College in April 1997, she left her work at the Adelaide University and went to Sydney where she enrolled to do a PhD. She said however, that she spent the first several weeks of her time in Sydney composing her letter of complaint to the Equal Opportunity Commission. It would seem that her state of mental health thereafter deteriorated. She lost her scholarship because of her extended absences through sickness. As she said: "I have no recent publications and I have no recent papers. I haven't taught, I haven't researched, I haven't written, I haven't read, and I feel I have to go and do an entire undergraduate course to get up to date; become up to date. It was such a passion in my life and I loved it. It's not very exciting being on sickness benefits because you get treated like, sort of – well, I mean, of course there's the financial hardship involved but it's also – I think I got to a point where I felt very resigned, stuck in this mould of being sick." 30 It is obvious that Ms Worsley-Pine has difficulty handling unwanted, unwarranted personal contacts from the opposite sex. In her letter of complaint she wrote of her unfortunate experience at the hands of an unnamed professor: "Another example which illustrates the strong culture of masculinity which exists at the College is that of a visiting professor who subjected me to a considerable amount of unwanted, uninvited sexual attention. I would go walking with a group of people and suddenly he was the only one asking me to go for a walk. One night he grabbed my hand. Another night he stopped in a very dark spot and tried to grab me. I pulled away and kept walking. He invited himself along to movies. He was always trying to find reasons for me to go into his room. One night, he succeeded because there was something he had to give me and he tried to kiss me. I told him I was going and he grabbed the door handle. I had to tell him that I wanted to go about three times, before he would let me leave. I left in November for a conference in Perth which also meant a reunion with my partner. He was due to leave Australia two days after I was to return. I delayed my trip so as to avoid seeing him again. He found out – by reading the notices, and delayed his departure. I did not know until I got a knock on my door the day after I returned. I pretended to be sick and bedridden until he left." Ms Worsley-Pine also said that on her first or second day at the College a man approached her and in the course of talking to her he made an offensive remark about her "having his babies". She said that it upset her; she did not find it a light-hearted remark in poor taste. But she did nothing about it; she could have, but she did not complain to the College authorities. The identities of this man and of the Professor were not disclosed in her evidence. She claimed that her reference to these incidents entitled her to say that it is "fairly obvious that sexual harassment was fairly endemic in the College". 31 Division 3 of the Act deals with sexual harassment and s 106 imposes vicarious liability on a person when his or her or its employee or agent is guilty of sexual harassment "in connection with the employment of the employee or with the duties of the agent as an agent". I have searched for a provision in the Act which might have been used by Ms Worsley-Pine to found an action of sexual harassment against the College but without success. Section 28F(2) was the nearest possibility but it could not assist her. It provides as follows: "It is unlawful for a person who is an adult student at an educational institution to sexually harass: (a) a person who is an adult student at the institution; or (b) a member of the staff of the institution." However, as I have already stated, the College is not an educational institution. In any event, even if it were, there was no evidence to suggest that Mr Robins was an employee or agent of the College. 32 Mr Robins did not give evidence and thus I have no way of knowing how he would have responded to what Ms Worsley-Pine has alleged. If, however, I were to accept her evidence, I must say that I would be satisfied that Mr Robins' conduct was sufficient to categorise it as sexual harassment. It was at the lower end of the scale but, tragically, Ms Worsley-Pine could not handle it. Her frail condition would not however exonerate Mr Robins: an aggressor must take his victim as he finds her. But that does not help Ms Worsley-Pine in her action against the College. I know of no way that the College can be responsible for Mr Robins' conduct. Her claim against the College, based on Mr Robin's conduct, must fail. 33 I am at a loss to understand who might have advised Ms Worsley-Pine that she had some form of case against the College. That advice has led her down a fruitless path which, in all probability, has served to exacerbate her depressive condition. I am very sorry for Ms Worsley-Pine. But I cannot let my sympathy for her influence what is a clear legal answer: the College was not responsible for Mr Robins' conduct. 34 The application must be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin. Associate: Dated: 29 June 2001 The Applicant appeared in person: Counsel for the Respondent: Mr M G Evans Solicitor for the Respondent: Messrs Finlaysons Date of Hearing: 23 November 2000, 7 May 2001 Date of Judgment: 29 June 2001