Fricke v Whyburn [2003] NSWADT 10

CITATION: Fricke v Whyburn [2003] NSWADT 10 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Randolf Fricke RESPONDENT Anthony Whyburn FILE NUMBER: 011074 HEARING DATES: 01/05/02 SUBMISSIONS CLOSED: 05/01/2002 DATE OF DECISION: 01/17/2003

BEFORE: Rice S - Judicial Member; Edwards K - Member; Nemeth de Bikal L - Member APPLICATION: Sexual Harassment - Goods and Services MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 Interpretation Act 1987 Malone and Health Insurance Commission [1996] HREOCA 38 Cooke v Plauen Holdings (2001) FMCA 91 CASES CITED: Vercoe v AMP Shopping Centres Pty Limited and Hardy [1999] NSWADT 89 ACT Department of Education & Training v Prendergast [2000] ACTDT 6 Tu v University of Sydney (No.2) (EOD) [2002] NSWADTAP 25 Sivananthan v Commissioner of Police [2002] NSWADT 45 APPLICANT REPRESENTATION: In person RESPONDENT J Gormly SC ORDERS: 1 Pursuant to s 113(1)(a) the complaint is dismissed.

1 For the reasons given below, the complaint is found to be unsubstantiated and is dismissed. This means that Mr Fricke's application to this Tribunal is unsuccessful. COMPLAINT AND REFERRAL 2 On 14 November 2000 the Anti-Discrimination Board received a letter of complaint from Mr Fricke. Mr Fricke's complaint was clearly stated: I would like to make a sexual harassment complaint against Anthony Whyburn . . . Anthony Whyburn is a lawyer who represented me during mediation at the Administrative Decisions Tribunal on 17 July 2000. I was molested on two occasions, on that date, between 10.30am and about 2.30pm. On one occasion he put both his hands on my right arm. On a later occasion, he put his hand on the top of my right leg, near my genital area. I looked down to see where he had placed his hand and indicated that he should remove his hand, which he did. I was seated next to him, so I could not move away quickly to avoid physical contact. . . . he knew very well that I do not like being touched by men, particularly anywhere on about the genital region. He knew that it was likely that I would be offended, humiliated and intimidated by his actions. 3 The President investigated the complaint and, on 10 September 2001, declined it as lacking in substance under section 90(1) of the Anti-Discrimination Act '(the Act'). Exercising his right under section 91(2) of the Act, Mr Fricke asked that his complaint be referred to this Tribunal for inquiry. STRIKE OUT APPLICATION 4 On 6 December 2001 Mr Whyburn made an application under Section 111 of the Act for Mr Fricke's complaint to be dismissed. That application was refused for reasons published on that date, and the matter was listed for hearing. Quoting from the Tribunal's ex tempore reasons: [M]aterial in the President's report indicates to the Tribunal . . . that independent witnesses are unable to say that they saw conduct complained of took place. [W]hether the conduct took place is a matter for determination on the evidence, and there is insufficient in the material before us to be able to say that the complaint is lacking substance for want of the complainant being able to establish the facts alleged. 5 The Tribunal considered a further question: "If the conduct alleged by Mr Fricke is established, that is to say taken at its highest, could the conduct amount, as a question of law, to sexual harassment within the meaning of the Act?". Put differently, The Tribunal asked "whether the conduct, if established, is 'conduct of a sexual nature', the phrase in section 22A(b)". 6 The Tribunal observed that there appears to have been very little judicial consideration given to the criteria by which conduct would be judged as to whether or not it is conduct of a sexual nature . . . we find almost no guidance at all in any authority as to whether or not the test for conduct of a sexual nature is objective or subjective. That is to say, whether or not the sexual nature of conduct is to be assessed by the Tribunal from a standpoint of a reasonable person or whether the sexual nature of conduct is to be taken from the manner in which the person subject to the conduct perceived it. 7 The Tribunal referred to the Human Rights and Equal Opportunity Commission decision of Malone and Health Insurance Commission [1996] HREOCA 38, and the Federal Magistrate's Court decision Cooke v Plauen Holdings (2001) FMCA 91. We came to the tentative conclusion that it "would probably have regard to the apparent sexual nature of the conduct", that is from an objective standpoint, but "having regard to all the circumstances [the Tribunal] would necessarily take account as well of the manner in which the complainant perceived the conduct". 8 The Tribunal noted a further question of law which could arise on the facts: "Whether the conduct - if we find it to be of a sexual nature - arose in circumstances in which a reasonable person having regard to all the circumstances, would have anticipated that Mr Fricke would be offended, humiliated or intimidated". The Tribunal was of the view that it would "have to have regard to all the circumstances in order to decide what a reasonable person would have anticipated", and accordingly it was appropriate for the complaint to proceed to an inquiry. SECURITY FOR COSTS 9 Mr Whyburn made an application for security for costs pursuant to Section 114(2) of the Act. The Tribunal referred to the decision of the Tribunal, differently constituted, in Vercoe v AMP Shopping Centres Pty Limited and Hardy [1999] NSWADT 89, specifically paragraphs 29 and 36. In the circumstances the Tribunal saw no grounds for making an order for security for costs. HEARING 10 The inquiry took place on 1 May 2002. The report of the President was admitted into evidence, and that report included a number of written statements by Mr Fricke detailing the circumstances of his complaint. Mr Fricke was cross-examined by counsel for Mr Whyburn. 11 Evidence for Mr Whyburn was given by Ms Jane Seymour, Mr Kerry Bryan, Ms Penny Goode and himself. FACTS 12 There is no dispute as to the circumstances in which the conduct alleged by Mr Fricke is said to have taken place. 13 Mr Fricke had been employed by a company in 1996/97 and had complained under the Anti-Discrimination Act about the company's conduct. Mr Fricke's complaint against the company was referred to this Tribunal where the complaint was the subject of mediation. Mr Whyburn represented Mr Fricke in that mediation. 14 A mediation session took place on 17 July 2000. The mediator was a judicial member of this Tribunal, Ms Penny Goode. Mr Fricke was present with Mr Whyburn. Also present were Ms Seymour, solicitor for the company and Mr Bryan, general counsel for the company. 15 Ms Goode sat at one end of a table. On one side sat Ms Seymour and Mr Bryan and on the other side, facing them, sat Mr Fricke and Mr Whyburn. 16 The physical contact of which Mr Fricke complains occurred at this mediation session, and is described by him in his complaint: On one occasion he [Mr Whyburn] put both his hands on my right arm. On a later occasion, he put his hand on the top of my right leg, near my genital area. I looked down to see where he had placed his hand and indicated that he should remove his hand, which he did. 17 In cross-examination Mr Fricke conceded that the first of the two occasions of physical contact was not sexual contact. He agrees that he did not see it as sexual and that it would not be reasonable to construe it as sexual. Mr Fricke continued to rely on the second occasion of alleged physical contact. 18 Mr Fricke's evidence to the Tribunal was that he reacted with a start on being touched by Mr Whyburn, and that he indicated with a look at Mr Whyburn that he should remove his hand. DID THE CONDUCT OCCUR? 19 There is no direct evidence of the conduct having occurred, other than the allegation of Mr Fricke. Mr Whyburn denies the contact alleged by Mr Fricke. He does not say that the contact occurred and that it was usual, or unremarkable, or unthinking. He says he did not touch Mr Fricke. Rather than going straight to the issue of whether the conduct alleged by Mr Fricke, had it been conceded by Mr Whyburn, could constitute conduct of a sexual nature, it is necessary first for the Tribunal to make a finding of fact as to whether or not the conduct occurred. 20 The evidence of those who were present in the room does not assist a finding one way or the other. None says they saw the contact, none is able to say that the conduct could not have happened without their noticing it. Ms Seymour agrees that she was in a position where she could have seen Mr Whyburn place his hand on Mr Fricke's thigh, but has no recollection of having seen him do that. She has no recollection of seeing Mr Fricke react in the way he says he did in reaction to Mr Whyburn's having touched him. Ms Seymour's observation was that the interaction between Mr Whyburn and Mr Fricke was pleasant and professional. 21 Similarly Mr Bryan agreed that he was well placed to see Mr Whyburn place a hand on Mr Fricke's thigh, but says that he did not see it happen. Nor did he see Mr Fricke react in the way that Mr Fricke says he did. He observed interaction between Mr Whyburn and Mr Fricke to be courteous and business-like. 22 Ms Goode agreed that she was in a position to see Mr Whyburn place his hand on Mr Fricke's leg, unless at the time her attention was focused on the parties sitting on the other side of the table. She says she did not see it happen. She says that while she was in a position to see such conduct, there were occasions when she was looking away, her eyes moving around in an endeavour to facilitate the mediation. She observed the relationship between Mr Fricke and Mr Whyburn to be very good. She didn't observe Mr Fricke to be uncomfortable in Mr Whyburn's company, and saw them together during breakout sessions from the mediation. Ms Goode said that she saw no change in Mr Fricke's mood which would be consistent with the contact he alleged having occurred and his reacting as he says he did. Cross-examined by Mr Fricke, Ms Goode agreed that it is possible that the conduct occurred without her seeing it. 23 Mr Whyburn's evidence is that he did not touch Mr Fricke as alleged. He says he was aware of Mr Fricke's apprehension about being touched by other men. His evidence is that when they first met on 2 June 2000 and shook hands it was clear that Mr Fricke was uncomfortable with the physical contact. Mr Whyburn says he could assess Mr Fricke's discomfort from reaction, and was aware of it from the material he had read in relation to Mr Fricke's complaint against the company. 24 Mr Whyburn says that he made a point of not again shaking hands with Mr Fricke because he knew of Mr Fricke's discomfort. When they met at the mediation conference he did not shake hands with Mr Fricke. At the mediation conference he sat close to Mr Fricke, less than a metre from him. He agrees that it is possible that he made some physical contact with Mr Fricke, but cannot recall if it was a bump with his arm or leg. 25 In his submissions, counsel for Mr Whyburn exhorted the Tribunal to make a clear finding as to the correctness of one version of events or the other, noting that the allegation is "very serious". It was not submitted that the Tribunal should come to its view on what might be termed a Briginshaw standard of evidence, and the Tribunal does not consider the nature of the allegation such as to warrant invoking that standard. 26 In having to make a decision as to which of two completely inconsistent accounts of events is, on balance, to be preferred, we take this approach. Each of Mr Fricke and Mr Whyburn has a reason for fabricating their evidence as to the occurrence or not of the physical contact: Mr Fricke to establish his complaint and Mr Whyburn to defend the allegation. At the same time each of them struck us as a truthful witness giving an honest account of their recollection. 27 Cross-examination of Mr Fricke laid the foundation for a submission that Mr Fricke's complaint against Mr Whyburn may have been vindictive. Mr Fricke agreed that he had been unhappy with the settlement which was reached regarding his complaint against the company, and said that he had signed a Deed of Release only reluctantly. He agreed that he declined to accept the settlement cheque when it was available, relying on the fact that it was available two days later than the agreed period. He agrees that, on terminating Mr Whyburn's instructions, he then obtained a settlement on the same terms with, it would appear, some legal advice but no representation. He agreed that the settlement amount included a proportion for Mr Whyburn's legal costs but that he has not yet paid those costs. 28 Mr Fricke agreed that, the alleged sexual harassment having taken place on 17 July, he made no complaint nor mention of this conduct to Mr Whyburn in the period until 30 November 2000 when he wrote to the Anti-Discrimination Board. He agreed that in his dealings with Mr Whyburn through the period of signing the Deed and discussing receipt of the cheque he made no reference to a complaint he had about Mr Whyburn's conduct. Mr Fricke's evidence is that he did not wish to be confrontational. 29 In light of this evidence it was submitted for Mr Whyburn that an explanation for Mr Fricke's complaint might be that he was vindictive, and that it should be inferred that the conduct alleged by Mr Fricke did not in fact occur. 30 Despite the delay in complaining and the subsequent dealings Mr Fricke had with Mr Whyburn without complaint, we are not persuaded that an inference can properly be drawn that Mr Fricke fabricated his account of there having been physical contact. Mr Fricke answered the questions in cross-examination directly and confidently, usually agreeing with the propositions put to him, even to the extent of conceding that part of the conduct he alleged was not conduct of a sexual nature. 31 So we must reconcile the competing accounts of credible witnesses. If Mr Fricke's allegation is to be believed, the evidence offers us this explanation for Mr Whyburn's denial: he genuinely has no recollection of it happening. If Mr Whyburn's denial is to be believed, the only reasonable explanation for Mr Fricke's allegation is that he is fabricating his account. 32 We consider it more likely that Mr Whyburn, as part of his interaction with Mr Fricke, would have touched him without thinking or being aware of what he was doing, and would be unable to recall doing so, than that Mr Fricke fabricated the allegation of physical contact. The Tribunal finds, on balance, that the physical contact alleged by Mr Fricke occurred. LAW 33 Mr Fricke alleges that the physical contact was sexual harassment by Mr Whyburn in the provision of legal services. By section 22A of the Act a person sexually harasses another person if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or (b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated. 34 By section 22F of the Act: It is unlawful for a person to sexually harass another person in the course of: (a) receiving, or seeking to receive, goods or services from that other person, or (b) providing, or offering to provide, goods or services to that other person. 35 Mr Fricke alleges that in making the physical contact Mr Whyburn made an unwelcome sexual advance or engaged in other unwelcome conduct of a sexual nature. CONDUCT OF A SEXUAL NATURE 36 An issue is whether the physical contact was conduct of a sexual nature. There is no issue that the conduct was 'unwelcome'. 37 The conduct was the touching, by a heterosexual man, of another man's thigh, on one occasion, while they were seated side-by-side and the first man was engaged in confidential discussion with the second man. Such conduct would not, in our view, ordinarily be understood as sexual conduct. That is, according to an objective standard, the conduct complained of was not conduct of a sexual nature. 38 As was noted by the Tribunal in its reasons for dismissing the application under s111, quoted above at paras 4-7, there appears to be no clear authority that the test for whether conduct is "of a sexual nature" is purely an objective one. Similarly, there appears to be no judicial discussion of what type of conduct constitutes 'conduct of a sexual nature'. 39 There is an issue therefore as to how the terms 'conduct of a sexual nature', and 'sexual advance' are to be construed: when is conduct 'sexual conduct', or an advance a 'sexual advance', and is this assessed objectively, or subjectively, or with regard to both perspectives? Reference to 'conduct of a sexual nature' in this discussion is reference to bot that phrase and 'sexual advance' – the same reasoning applied to each. 40 In assessing whether the conduct complained of in this matter is 'conduct of a sexual nature' we are inclined to take account of how Mr Fricke perceived the conduct, that is we give some weight to subjective considerations.. We do so for these reasons. 41 The Act protects against 'conduct of a sexual nature'. It should not be read down so as to protect only against conduct which is generally understood to be of a sexual nature. What is "generally understood" in Australian society is defined by social, cultural and historical considerations which, if they were the sole determinants of what constitutes 'conduct of a sexual nature', would limit the scope of the general prohibition in the Act against such conduct. 42 On the other hand, the dominant or common social, cultural and historical considerations in Australia will be the presumptive determinants as to what constitutes 'conduct of a sexual nature'; the Act would be unworkable if it exposed people to the risk of unlawful conduct simply by engaging in generally accepted conduct which happened to offend another person's unusual, idiosyncratic or socially or culturally different understanding of 'conduct of a sexual nature'. 43 People in their general dealings in life are entitled to assume that the 'conduct of a sexual nature' proscribed by the Act is conduct that is generally understood in contemporary Australia to be conduct of a sexual nature. But if that was the extent of the scope of the Act, people whose understanding of conduct of a sexual nature is unusual, idiosyncratic or socially or culturally different would not be protected by the Act; a person who knew of another's unusual sense of 'conduct of a sexual nature' would be able to engage in sexual harassment of that person without fear of sanction under the Act. In giving meaning to the term 'conduct of a sexual nature' the Tribunal should prefer a construction that would promote the purpose or object underlying the Act (s33 NSW Interpretation Act). 44 The protection of the Act would properly extend to a person whose perception of 'conduct of a sexual nature' is unusual if the person who engaged in the conduct knew of the other person's unusual perception. This approach simply brings within the knowledge of the person who engaged in the conduct an awareness not only of what is generally understood to be conduct of a sexual nature, but also what, in the circumstances, is conduct of a sexual nature. The Act does, in our view, cover conduct which is perception by a person, even though not generally, to be of a sexual nature, in circumstances when the perpetrator of the conduct is aware of the person's unusual perception. 45 Mr Fricke sees Mr Whyburn's physical contact with him as conduct of a sexual nature even though it would not ordinarily be seen as such. Mr Whyburn was aware that Mr Fricke sees such physical contact as sexual in nature. Mr Whyburn knew that such physical contact was, for Mr Fricke, sexual in nature and he knew it was unwelcome. The physical contact occurred in circumstances -including knowledge of Mr Fricke's particular sensitivity - where a reasonable person would have anticipated that Mr Fricke would be offended, humiliated or intimidated. 46 If that physical contact had been a deliberate or intended act by Mr Whyburn, we would find that the conduct constituted sexual harassment. DELIBERATE ACT 47 For conduct to be a breach of the Act the conduct must have been deliberate. It is not possible to 'make an advance' or to 'engage in conduct' unconsciously or involuntarily, for example by being unaware of a habitual gesture, or by tripping into someone. 48 This is a different issue from the question of intention to sexually harass; when deliberate conduct is established then the existence or not of intention to harass is irrelevant. It is no answer to a complaint of sexual harassment to say "I didn't mean my conduct to cause any offence". It is however an answer to say "I didn't intend to do what I did - the act was unconscious or involuntary". 49 In this case we are satisfied that Mr Whyburn's conduct was unconscious and not deliberate. Mr Whyburn's physical contact with Mr Fricke was a single unconscious act between a service provider and a client during their professional relationship. Based on Mr Whyburn's evidence, and that of Mr Fricke and the witnesses, we are satisfied that Mr Whyburn was unaware of his gesture in the course of a tense and private discussion with his client. To the extent that it is relevant, we are satisfied that it was reasonable in the circumstances for him to be unaware of engaging in so ordinary and slight a gesture as the conduct was, even though he knew that Mr Fricke saw male-to-male physical contact as unwelcome sexual conduct. 50 We are satisfied that in acting as he did Mr Whyburn did not make a 'sexual advance' to Mr Fricke within the meaning of s22A(a) of the Act, nor did he engage in 'conduct of a sexual nature' towards Mr Fricke within the meaning of s22A(b) of the Act. The physical contact was an unconscious act for which Mr Whyburn cannot be held liable. That being so Mr Fricke has failed to establish that Mr Whyburn has breached the Act. The complaint is unsubstantiated and the complaint will be dismissed pursuant to section 113(1)(a) of the Act. CONDUCT OF A TRIFLING NATURE 51 Even if the physical contact was conduct for which Mr Whyburn can be held responsible, and was sexual harassment within the meaning of the Act, the conduct was of the slightest and most fleeting kind. It caused Mr Fricke no apparent distress, or at least no increase in the distress he feels consistently in relation to the proximity of men and physical contact with them. If Mr Whyburn's conduct were to be a breach of the Act we would consider it to be within the principle of de miminus non curat lex. That is, we would consider it to be so trifling as to not be worthy of consideration for the purposes of the Act, and to not warrant a finding of liability. 52 Section 111(1) of the Act provides that: Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint. 53 Within the meaning of s111(1) an allegation which is de minimis may be one that is "lacking in substance" (see, eg, ACT Department of Education & Training v Prendergast [2000] ACTDT 6), or its being de minimis may be an "other reason the complaint should not be entertained". In either event we would dismiss the complaint under s111(1). This is a view we have formed on the basis of the evidence in the inquiry; we were not of this view at the time that we considered and dismissed the application under section 111 of the Act prior to the hearing. COSTS 54 Section 114 of the Act provides that each party to an inquiry shall pay his or her own costs, but that the Tribunal may make such order as to costs if it is of the opinion in a particular case that there are circumstances that justify it doing so. 55 The Tribunal will dismiss the complaint under s113(1). In the alternative the Tribunal would dismiss the complaint under s111(1). The Tribunal has had regard to the decision of the Appeal Panel in Tu -v- University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25, most particularly at paras 39, 42 and 43: 39 Nonetheless the proposition that the s 111(2) discretion should ordinarily be exercised in favour of the successful party has not been fully embraced in the equal opportunity jurisdiction. Equal opportunity tribunals have referred to the special character of the jurisdiction, which seeks to protect and promote the observance of fundamental human rights. For example in Anon v Anon (No 1) [1997] NSWEOT (18 July 1997) it was said that the human rights protection objective 'might be thwarted if complainants were to be discouraged from pursuing claims before the Tribunal due to fear of the amounts that may be awarded against them for inter alia legal costs if unsuccessful on those claims'. . . . 42 The sanction of a full costs order against the complainant tends to be reserved for cases where an abuse of process is seen as having been involved, i.e. those cases where the conduct of the complainant was frivolous, vexatious or lacking in good faith. 43 Where a matter is found to be 'misconceived' or 'lacking in substance' there is greater caution in making an adverse costs order. A complaint may be 'misconceived' or 'lacking in substance' for technical legal reasons (e.g. jurisdictional limitations, absence of preconditions as to proof of key facts) which may be lost on the (typically unrepresented) complainant. In these circumstances respondents are often left to bear the cost, because of the greater public interests involved in upholding the making of complaints of violation of human rights: for a recent discussion of these matters see Sivananthan v Commissioner of Police [2002] NSWADT 45 at [16-28]. 56 In Tu the complaint was dismissed under the 'any other reason' category of s 111(1), because of Mr Tu's failure to prosecute his complaint, without good reason, at the time set down. 57 We do not think that any of Mr Fricke's complaint, his application to this Tribunal or the manner in which he managed the proceedings are such as to overcome the caution referred to in paragraph 43 of Tu. 58 Accordingly, we are not of the opinion that there are circumstances that justify the making of a costs order in this case, and the presumptive rule in s114, that each party to an inquiry shall pay his or her own costs, applies. ORDERS 59 The Tribunal orders that 1. Pursuant to s113(1)(a) the complaint is dismissed.