De Domenico v Marshall [2001] ACTSC 52 (24 May 2001)

Last Updated: 7 June 2007

TONY DE DOMENICO v MARGOT MARSHALL [2001] ACTSC 52 (24 May 2001)

CATCHWORDS

COURTS AND JUDICIAL SYSTEM - appeals from the Administrative Appeals Tribunal - whether appeal limited to questions of law as provided by s 46 of the Administrative Appeals Tribunal Act 1989 - whether more expansive appellate jurisdiction provided by s 20 of the Supreme Court Act 1933 - whether s 48A of the Australian Capital Territory (Self-Government) Act 1988 confers appellate jurisdiction on the Supreme Court or prevents the appellate jurisdiction otherwise conferred by s 20 of the Supreme Court Act from being reduced or limited by laws of the Territory.

APPEAL - decision of Administrative Appeals Tribunal (ACT) - allegations of sexual harassment -findings of fact adequate -failure to make adequate findings and give sufficient reasons for decision - whether appellant given sufficient warning of Tribunal's intention to depart from the approach taken by the Discrimination Commissioner in the decision appealed from - whether irrelevant considerations taken into account - whether failure to take relevant considerations into account - whether decision based upon errors of law and fact.

Discrimination Act 1991, s 59(1)

Legislative Assembly (Member's Staff) Act 1989

Administrative Appeals Tribunal Act 1989 s 46(1), 46(3), 46(5)

Supreme Court Act 1933 (ACT), s 20

Magistrates Court Act 1930, s 207

Tenancy Tribunal Act 1994, s 58, s 46

Australian Capital Territory (Self-Government) Act 1988 (Cth), s 48A

ACT Supreme Court (Transfer) Act 1992 (Cth)

Tony de Domenico v Margot Marshall [1999] ACTSC 1

De Domenico v Marshall [1999] FCA 1305

Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 14 ALR 519

Kelly v Apps [2000] FCA 687) p

FAI Properties Pty Ltd v Nationwide Travel Canberra Pty Ltd [2000] ACTSC 82 (6 October 2000)

Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1

Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; (1979) 24 ALR 513

Pettitt v Dunkley [1971] 1 NSWLR 376

ibid, Donges v Ratcliffe [1975] 1 NSWLR 501

Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145

Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563

Dessent v Commonwealth (1977) 51 ALJR 482

Kelly v Fay [1982] 1 NSWLR 232

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500

Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465

Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 160 ALR 588

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Statutory Interpretation in Australia, 4th ed Butterworths, Sydney 1996

On Appeal from the ACT Administrative Appeals Tribunal

No. SCA 19 of 2000

Judge: Crispin J

Supreme Court of the ACT

Date: 24 May 2001

IN THE SUPREME COURT OF THE )

) No. SCA 19 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: TONY DE DOMENICO

Appellant

AND: MARGOT MARSHALL

Respondent

ORDER

Judge: Crispin J

Date: 24 May 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

2. The decisions of the Administrative Appeals Tribunal made on 23 March 2000 and 31 March 2000 be set aside .

3. In lieu thereof the appeal to the Administrative Appeals Tribunal against the decision of the ACT Discrimination Commissioner delivered on 29 December 1995 be dismissed and the decision of the Commissioner confirmed.

1. This is an appeal against two decisions of the ACT Administrative Appeals Tribunal (AAT) constituted by a Senior Member; the former on 23 March 2000 finding that the appellant had engaged in sexual harassment of the respondent contrary to s 59(1) of the Discrimination Act 1991 and the latter on 31 March 2000 directing him to pay the respondent compensation in the sum of $1,500,00.

2. As the Senior Member observed in the reasons for judgment delivered on 23 March 2000, the matter had had a prolonged history.

3. Between 7 February and 11 November 1994 the respondent was employed under the provisions of the Legislative Assembly (Member's Staff) Act 1989 as personal secretary to the appellant who was then a Member of the ACT Legislative Assembly (the Assembly). On 25 October 1994 the appellant wrote to the respondent dismissing her from that employment with effect from 11 November 1994.

4. On 21 November 1994 the respondent wrote to the ACT Discrimination Commissioner complaining of a number of matters relating to her dismissal, including allegations that the appellant had repeatedly made comments of a sexual nature in her hearing concerning his interest in or sexual arousal by other women. She claimed that he had persisted in this conduct despite her frequent requests that he refrain from doing so. The respondent's complaints also included an allegation that he had repeatedly accused her of having an affair with another member of the Assembly (MLA) and that she had "been continually exposed to sexual innuendoes".

5. The complaint was expanded by a further letter dated 19 December 1994 enclosing an "expanded statement" purportedly at the request of a member of the Discrimination Commissioner's staff. Amongst other things, the statement detailed allegations that the respondent had:

(a) made statements suggesting his sexual attraction to a woman on the staff of another MLA;

(b) made statements and obscene gestures suggesting his sexual desire for various women working in the offices of the Assembly; and

(c) made crude statements suggesting that another MLA was sexually interested in the respondent.

6. The appellant denied any acts of sexual harassment or wrong-doing and some attempt at conciliation ensued. When this proved fruitless the Discrimination Commissioner embarked upon a public hearing of the complaints.

7. Affidavits were filed by both parties, presumably pursuant to directions of the Discrimination Commissioner. The four affidavits filed by the respondent were treated not only as evidence but as further "Documents making up the complaint". Section 75 of the Discrimination Act authorises the Discrimination Commissioner to conduct investigations in such manner as she thinks fit, enjoins her to employ as little formality and technicality as the relevant statutory requirements and the need for due consideration of the matters before her permit, and relieves her of the obligation to comply with the rules of evidence. Nonetheless, it is generally desirable for the allegations forming the substance of the complaint to be stated with due clarity and for a distinction to be made between the allegations so stated and the evidence relating to any such allegations. In the present case, one affidavit of the respondent ran to 34 pages and contained many allegations that had no bearing on her claim of having been sexually harassed by the appellant. It also contained insulting and potentially inflammatory descriptions of the appellant.

8. On 29 December 1995 the Discrimination Commissioner, Ms Robyn Burnett, dismissed the complaint, explaining that, having carefully considered the evidence and borne in mind the various matters mentioned in her detailed reasons, she was "not persuaded that the primary facts establishing the alleged unlawful conduct under the Discrimination Act have been substantiated".

9. The respondent then appealed to the AAT. The AAT conducted a further hearing but did not give any decision on the appeal until 1 June 1998 when it set aside the decision of the Discrimination Commissioner and found that the appellant had engaged in conduct that was unlawful under the Discrimination Act. In its reasons the AAT indicated that it had found that the respondent's allegations "were often in an exaggerated form" but that there was a "solid kernel of conduct that may bear the character of sexual harassment" and there was sufficient evidence that the respondent did not invent the conduct of which she complained.

10. On 4 November 1998, almost three years after the Discrimination Commissioner's decision, the AAT made a further decision directing the appellant to pay the respondent the sum of $1,500. The respondent had claimed $602,000. However, the AAT expressed the view that any loss or damage due to the respondent's dismissal was irrelevant as there had been no finding that it constituted unlawful conduct under the Act and her claim for unfair dismissal had already been settled by a consent order.

11. The appellant in turn appealed to the Supreme Court pursuant to s 46(1) of the Administrative Appeals Tribunal Act 1989: Tony de Domenico v Margot Marshall [1999] ACTSC 1. On 3 February 1999 Miles CJ ordered that the appeal be dismissed. His Honour was strongly critical of the AAT's decision and said at [40] that it was "difficult to find justification in the evidence discussed in the Tribunal's reasons" for some of the conclusions which it had reached. However, his Honour said that appeals from decisions of the AAT were limited to questions of law and he concluded at [43] that it was not sufficient to find that the decision had been "unsafe and unsatisfactory". Since no error of law had been established he was obliged to dismiss the appeal.

12. A further appeal from that decision was decided by the Full Court of the Federal Court of Australia ("Full Court") on 16 September 1999: De Domenico v Marshall [1999] FCA 1305. Their Honours reviewed the decision of Miles CJ and expressed the view, at [32], that given the manner in which the appeal had been argued before him that decision was correct. However, in maintaining the appeal before the Full Court senior counsel for the appellant had approached the matter somewhat differently, arguing that the AAT had erred in law by not making sufficiently precise or comprehensible findings. Their Honours accepted that this failure did amount to an error of law and remitted the matter to the AAT for re-hearing.

13. In doing so the Full Court stated the following at [72] and [73]:

The re-hearing should accordingly be limited to the investigation of so much of Mrs Marshall's complaint as alleges that Mr De Domenico (a) repeatedly made explicit remarks to her about his sexual desire for and arousal by other women and (b) accompanied those remarks by lewd and explicit gestures.

It will, of course, be open to the AAT to consider how much, if any, further oral evidence in chief it hears and, if it thinks fit, to limit the amount of further cross-examination. Normally where credibility is in issue, it is generally held to be (and sometimes actually is) a considerable advantage to see and hear the witnesses. However, where questions of truthfulness and the fact or degree of exaggeration are involved, an important aspect of the advantage lies in observing the fresh and untutored responses of the witnesses. Cross-examination in a second hearing is rarely as telling as in the first. It is likely to be even less valuable in a third. The desirability of some reasonably proportionate commitment of the AAT's time to what appears to be involved will be a relevant factor. Complete transcripts are available and have been obtained. I should add that appropriate directions to the parties, among other things, to provide a detailed guide to the transcript passages deemed of importance, as well as attention to those aspects of the principles behind the rules of evidence to which I have referred, should greatly assist to shorten the matter and reduce costs.

14. On 2 February 2000 the matter again came before the AAT, this time constituted by the Senior Member. Further statements had been provided by both parties and some arguments were presented. Neither party then had legal representation and neither sought to adduce oral evidence. This course may have been prompted by the statements of the Full Court which I have quoted, as well as frustration at how long the dispute had already taken and reluctance to incur the financial and emotional cost of another full hearing. In any event, the Senior Member was left to grapple with the difficult task of deciding a case that inevitably involved serious questions as to which evidence should be accepted without being able to assess the credibility of the relevant witnesses by any impression of their demeanour in the witness box.

15. On 23 March 2000 the Senior Member gave his decision, finding that "for the purposes of section 59(1) of the Discrimination Act 1991" the appellant "did engage in unlawful conduct". The written reasons for that decision included findings in the following terms at [73]:

I am satisfied that Mr De Domenico (a) repeatedly made explicit remarks to the applicant about his sexual desire for and arousal by other women and (b) accompanied those remarks by lewd and explicit gestures. I am satisfied that the conduct complained of occurred, it was conduct of a sexual nature, the conduct was unwelcome, it caused the applicant to feel offended and, in the circumstances, it was reasonable for the applicant to feel offended. Accordingly, I am satisfied that Mr De Domenico has engaged in sexual harassment within the terms of section 59(1) of the Act.

16. On 31 March 2000 the Senior Member gave a direction that the appellant pay the respondent the sum of $1,500, thus effectively restoring the direction that the AAT had made in November 1998.

17. The appellant now appeals from both of these decisions of the Senior Member.

The timing of the appeal

18. Subsection 46(3) of the Administrative Appeals Tribunal Act 1989 provides, inter alia, that an appeal against a decision of the AAT shall be instituted "not later than the 28th day after the day on which a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the Supreme Court (whether before or after the end of that day) allows".

19. The present appeal was instituted on 27 April 2000, which was within 28 days of the latter decision but more than 28 days after the former decision. However, in all the circumstances, including the fact that the appellant had not been legally represented at the relevant hearing, I ordered that he be allowed the further time necessary to validate the appeal insofar as it related to the first decision.

20. The respondent did not object to this course.

The nature of the appeal

21. Mr Refshauge, who appeared for the appellant with Mr Wodrow, began his submissions by contending that notwithstanding the terms of s 46 of the Administrative Appeals Tribunal Act 1989 the appellant was entitled to raise questions of fact as well as questions of law.

22. Section 46 of the Administrative Appeals Tribunal Act provides, inter alia:

(1) A party to a proceeding before the Tribunal may appeal to the Supreme Court on a question of law from any decision of the Tribunal in that proceeding.

23. Whilst the section does not expressly exclude appeals on questions of fact and the expressio unius est exclusio alterius rule of statutory construction must be applied with caution, (see, for example the remarks of Aickin J in Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 14 ALR 519 at 539) there can be little doubt that the express reference to a right to appeal on a question of law normally excludes, by implication, an appeal on any other ground.

24. However, in Kelly v Apps [2000] FCA 687 a Full Court of the Federal Court held that s 20 of the Supreme Court Act 1933 (ACT) provided "all appellate jurisdiction that is necessary to administer justice in the Territory": per Wilcox J at [17]. Indeed, their Honours said that the intention of the legislature seems to have been to "ensure that the Supreme Court had the ability to right any wrong that might occur in the administration of justice by any court within the Australian Capital Territory": per Wilcox J at [18]. Whilst subs (1) of s 207 of the Magistrates Court Act 1930 purports to stipulate the appellate jurisdiction of the Supreme Court in relation to decisions under that Act, subs 207(2) provided that nothing in the relevant part of the Act limited the operation of any other Act that made provision with respect to the appellate jurisdiction of the Supreme Court. The Full Court said that the important point was that there was a broad general jurisdiction conferred under s 20(1)(a) of the Supreme Court Act 1933 and that the Magistrates Court Act 1930 specifically stated that nothing in the relevant provisions was to cut down jurisdiction conferred under other legislation.

25. In FAI Properties Pty Ltd v Nationwide Travel Canberra Pty Ltd [2000] ACTSC 82 (6 October 2000) I distinguished the decision in Kelly v Apps in holding that an appeal from a decision of the Tenancy Tribunal was confined by s 58 of the Tenancy Tribunal Act 1994 to questions of law. That section contains no provision comparable to that contained in subs 207(2) of the Magistrates Court Act. Accordingly, it seemed necessary to resolve the apparent conflict between its provisions and those of s 20 of the Supreme Court Act, by reference to the usual principles of statutory construction. Where apparently conflicting provisions are contained within statutes of the same legislature, those principles include, of course, the generalia specialibus non derogant principle that where there is conflict between general and specific provisions, the specific provisions prevail: see, for example Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7; Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; (1979) 24 ALR 513. It has been suggested that the generalia specialibus rule should be observed more strictly when the apparently inconsistent provisions are found within a single Act than in separate enactments: see D C Pearce and R S Geddes, Statutory Interpretation in Australia, 4th ed Butterworths, Sydney 1996 at 4.24. However, notwithstanding this observation it seemed to me that appeals from the Tenancy Tribunal were governed by the specific provisions of s 58 of the Tenancy Tribunal Act 1994 rather than the more general provisions of s 20 of the Supreme Court Act 1933. Accordingly, I held that such appeals lie only in relation to questions of law.

26. In the present appeal, however, Mr Refshauge relied not only upon s 20 of the Supreme Court Act but also s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (the Self-Government Act) which provides as follows:

(1) The Supreme Court is to have all original and appellate jurisdiction that is necessary for the administration of justice in the Territory.

(2) In addition, the Supreme Court may have such further jurisdiction as is conferred on it by any Act, enactment or Ordinance, or any law made under any Act, enactment or Ordinance.

(3) The Supreme Court is not bound to exercise any powers where it has concurrent jurisdiction with another court or tribunal.

27. As Mr Refshauge pointed out, the Australian Capital Territory (Self-Government) Act 1988 is the Commonwealth statute which defines the powers of the ACT Government. Subsection (2) authorises the Territory to confer further jurisdiction upon the Supreme Court, though given the breadth of subs (1) it is difficult to see what additional jurisdiction could be conferred. It does not authorise the Territory to reduce or limit the jurisdiction conferred by subs (1) either directly or by implication from an inconsistent provision of a Territory enactment such as section 46 of the Administrative Appeals Tribunal Act. Hence, Mr Refshauge maintained, the section provided the Supreme Court with power to entertain the present appeal and that power was not constrained by the terms of s 46. Accordingly, the appeal was not confined to questions of law.

28. It is true that s 48A of the Self-Government Act provides that the Supreme Court "is to have" all original and appellate jurisdiction necessary for the administration of justice in the Territory whilst s 20 of the Supreme Court Act provides that the Supreme Court "has" such jurisdiction. However, the Supreme Court Act was also a Commonwealth Act until 1992 and the ACT Supreme Court (Transfer) Act 1992 (Cth), which provided for that Act to be taken to be a Territory enactment, both inserted s 48A into the Self-Government Act and amended s 20 (formerly s 11) of the Supreme Court Act to its current form. In this context it seems clear that the future tense was adopted to make it clear that the Supreme Court would continue to have such jurisdiction notwithstanding the transfer of legislative power over the Supreme Court to the Territory. In my view that jurisdiction is effectively entrenched by s 48A. Even if that section does not directly confer jurisdiction on the Supreme Court it would limit the power of the Assembly to curtail that jurisdiction since any provision of a Territory enactment has no effect to the extent that it is inconsistent with a law of the Commonwealth (see s 28 of the Self-Government Act). The breadth of jurisdiction so conferred cannot be narrowed by any enactments of the Territory whether by virtue of the generalia specialibus non derogant principle or otherwise. The appellate jurisdiction of the Court is therefore limited only by the requirement that it be "necessary for the administration of justice in the Territory". Hence, subject to that requirement, the appellant is entitled to raise questions of fact as well as questions of law in pursuing the current appeal.

29. This conclusion may have little bearing on the disposition of the present appeal since I have formed the view that the decision of the Senior Member has, in any event, been vitiated by errors of law. However, it does enable the appellant to rely upon errors of fact which provide even more compelling reasons for setting aside the findings and directions of the Senior Member. It may also may have far reaching consequences for the conduct of other appeals to this court.

30. Mr Refshauge had previously indicated that he intended to abandon the ground of appeal which alleged that having regard to the whole of the evidence before the Senior Member, the decision to overturn the decision of the Discrimination Commissioner was plainly wrong. However, in view of his contentions concerning the permissible ambit of the appeal he sought leave to reinstate that ground. Ms Marshall did not object to this course but did seek some additional time in order to read and consider further written submissions, a copy of which Mr Refshauge and Mr Wodrow had provided to her only at 10 am on the first day of the appeal. I granted leave for the ground to be reinstated but acceded to the respondent's request and at the conclusion of Mr Refshauge's submissions adjourned the further hearing of the appeal to allow the respondent adequate time to consider her position and prepare argument in answer to the written submissions.

The paucity of findings and reasons

31. Mr Refshauge commenced his assault upon the Senior Member's decision by pointing to the fate of the earlier decision of the AAT and submitting that the decisions of the Senior Member were similarly flawed.

32. The Full Court had set aside that decision because it had failed to make findings of fact with sufficient particularity. Madgwick J, with whose reasons Spender J agreed and Dowsett J expressed general agreement, dealt with this issue in the following passage of his judgment at [61] - [63]:

The sufficiency of the findings of administrative (or judicial) tribunals is to be judged by the purposes for which they are made and the circumstances of the case. These criteria include matters common to every case, such as satisfying the parties' interest in understanding what was decided and the basis of the decision and putting them in a position to decide whether to exercise their right of appeal (even if that right is limited to matters of law only): see, generally Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65. The purposes of the findings may also include matters particular to the case at hand. Here, particular factors would include: to enable a rational decision by the AAT as to whether to exercise the discretion to award any compensation to Mrs Marshall and, if so, how much. Although Mrs Marshall did not cross-appeal as to the quantum of the compensation awarded to her, her submissions show that she is very unhappy about it. Her failure to appeal may have been no more than an oversight.

Judged in this way, it is clear that the findings of both the Commissioner and the AAT were not made with a sufficient degree of particularity. This is not a matter of requiring an unrealistic degree of detail. For example, although there was no express rejection of Mrs Marshall's claim that Mr De Domenico taunted her, at times in grossly explicit terms, about her supposed but non-existent affair with another MLA, it may reasonably be inferred from various comments by the AAT that it did reject this claim for want of corroboration of it. If that is not a reasonable inference, the lack of sufficient particularity in the findings is established beyond argument.

Nor could the Tribunal reasonably have been expected to quantify the precise number of times that Mr De Domenico, in the Tribunal's view, made sexually gross remarks to Mrs Marshall and/or accompanied them with obscene gestures. However, although it is clear that the Tribunal considered that he so behaved on considerably fewer occasions than Mrs Marshall asserted but more than once, no reasonable inference can be made as to whether he so behaved, on what might be called (i) very few occasions, (ii) quite frequently or (iii) many occasions. Whether he did this about once or twice each three months, or once or twice a month, fortnight or week, one cannot say from reading the totality of the Tribunal's remarks. One might possibly have drawn an inference that it occurred quite infrequently from the award of a mere $1,500 in compensation, but the Tribunal seems to have thought that there was a de facto upper limit to what might be awarded, in a case where economic loss was not in issue, of about $10,000. Thus, the award may be consistent with a view that the offending conduct occurred often but was, nevertheless, quite minor in its true effects on Mrs Marshall. Hence the matter remains one of mere guesswork. All one knows is that his remarks and gestures were not "unremitting". In the absence of findings of greater particularity and less ambiguity, no rational view could be come to by the parties or anyone else as to whether, for instance, the award of compensation was too high or too low or should not have been made at all. Nor could an interested member of the public discern whether Mr De Domenico was a man who, on a mere handful of occasions had expressed himself to Mrs Marshall in a way that, had he done so to a man, many men might not find seriously objectionable, or a man who on many occasions truly had oppressed a women by forcing her attention to sexual matters of little interest to her, in a very gross way, and in an utterly inappropriate context, notwithstanding that the woman had exaggerated the frequency of those occasions.

33. Mr Refshauge submitted that neither decision of the Senior Member contained materially greater precision. The only real difference was that whilst a person reading the earlier decision of the AAT would have gleaned only that the appellant's remarks and gestures had been found to have been "not unremitting", a person reading the Senior Member's decisions would have been informed that they had occurred "repeatedly". Hence, Mr Refshauge submitted, the criticisms made of the earlier judgment at [63] of the judgment of Madgwick J could be made with equal force of the decisions of the Senior Member and he had fallen into error by "failing to comply with the directions" of the Full Court.

34. Mr Refshauge also submitted that the Senior Member had fallen into error by failing to properly identify and apply the provisions of the Discrimination Act 1991. He observed that the Full Court had at [19] expressed agreement with what he described as the "five fold test" which had been enunciated in the earlier AAT decision at [9]; namely:

In order to justify a finding of sexual harassment, the Tribunal must be satisfied as to the existence of each of the following matters :

(a) that the conduct occurred; and

(b) that the conduct was of a sexual nature; and

(c) that the conduct was unwelcome;

(d) that the conduct caused the complainant to feel offended, humiliated or intimidated by reason of the nature of the conduct; and

(e) that it was reasonable for the complainant to feel offended, humiliated or intimidated.

35. Yet, as Dowsett J had observed at [91], it appeared that the course adopted by the AAT at the earlier hearing had been "simply to form a view as to relative credibility and to use that as a basis for upholding the thrust of the allegations without focussing upon any individual act of harassment as required by the Act". Mr Refshauge pointed out that in his reasons for the decision subject to the present appeal the Senior Member indicated that he was satisfied as to each of these matters, but made no factual findings with sufficient particularity to support these conclusions. Accordingly, the real ground of complaint was not that he failed to identify the requirements of the Act but that he failed to adequately address them. When the reasons for a decision do not include sufficient factual findings to support each of the conclusions, an appellate court cannot determine whether the relevant issues have been inadequately addressed or whether there has simply been a failure to provide adequate reasons.

36. It has long been accepted that a court must state the reasons for its decision and identify the factual basis for that decision. Failure to do so when there are real and relevant issues of fact posed for its determination has been held to constitute an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376 at 380-382, 384 per Asprey JA, 385 per Manning JA, 387 and 388 per Moffitt JA. Furthermore, at least when a doubt exists as to the legal principles applicable or when an appellate court may be left in doubt as to whether the primary court has understood the application of the relevant legal principles to the facts, those legal principles accepted and applied by the court must also be stated: ibid, Donges v Ratcliffe [1975] 1 NSWLR 501 at 508 per Rath J. It has been suggested that the findings of a judicial officer will be deficient unless the process of reasoning which led to them is exposed in the reasons for judgment. Such a principle was first recognised in relation to assessments of damages. See, for example, Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145 at 149-150 per Stephen J; Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 at 572 per Gibbs and Stephen JJ; and Dessent v Commonwealth (1977) 51 ALJR 482 at 486-487 per Mason and Aickin JJ. However, it has since been said to be applicable in cases in which the determination of the facts involves a complex process of reasoning and where appealable error can only be discovered by the disclosure of such process: Kelly v Fay [1982] 1 NSWLR 232 at 237-238 per Hunt J. More recently, it has been held that judicial officers are required to state their reasons in sufficient detail to enable unsuccessful parties to understand why they lost: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 441 per Meagher JA. In the absence of such reasons the decision must be set aside.

37. As the Full Court of the Federal Court observed in upholding the appellant's appeal, it is well established that the failure of an administrative body to make findings of material fact also constitutes an error of law and a failure to make findings of sufficient particularity is but a special case of breach of the duty to make findings about material facts. Madgwick J cited, at [65], the following passage from the judgment of Woodward J in Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507:

The decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation.

38. As Madgwick J observed, this passage had been referred to with approval by Wilcox J in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 481. It was obviously accepted by the Full Court as a correct statement of the relevant principles.

39. In the present case, as I have mentioned, the Full Court set aside the earlier decision of the AAT on the ground that it had erred in law by not making sufficiently precise or comprehensible findings. In doing so, it referred to various matters which had not been resolved by the AAT's findings. It is a matter of some regret that, despite the "blueprint" thereby provided, substantially the same errors should have been made in the decision subject to the present appeal. The findings of the Senior Member do not extend to the particularity as to frequency of occurrence as referred to at [63] of the judgment of Madgwick J and at [89] - [90] of the judgment of Dowsett J. Nor do they address the other issues referred to by Dowsett J at [88] and [91]. Accordingly, I am obliged to find that the decision is again vitiated by error of law.

The duty to the appellant as a litigant in person

40. Whilst the appellant was legally represented at the directions hearing on 30 March 2000, both parties were unrepresented during the earlier hearing on 2 February 2000. Mr Refshauge submitted that in those circumstances the Senior Member had a duty to make clear the precise manner in which he intended to proceed. In particular, he submitted that he should have alerted the appellant to the approach he intended to adopt in relation to the issue of corroboration of the respondent's evidence and to give the appellant the opportunity to present arguments specifically related to that issue in the light of the comments which Miles CJ had made concerning the evidence of the witness referred to as "E".

41. The Discrimination Commissioner had rejected the evidence of "E" as unreliable and, whilst the AAT had previously accepted an allegation she had made, Miles CJ said at [42] that it had been "remarkable" that the AAT had done so. The Chief Justice noted that the Discrimination Commissioner had found her evidence unreliable "for reasons which, on the face of it, appear valid". He observed that "E's" affidavit and the evidence before the Tribunal had been restricted to allegations of sexually explicit remarks and did not extend to conduct. He also mentioned that the Tribunal had not apparently found it established that the remarks had been made in the presence of the respondent and that the evidence had not appeared capable of establishing that they had been. He concluded that the absence of any finding that either the gestures or the remarks occurred in the respondent's presence made it difficult to see how "E's" evidence of the gestures could have assisted in establishing sexual harassment of the respondent by the appellant. As previously mentioned, the further appeal to the Full Court of the Federal Court was decided on a question of law which had not been raised before Miles CJ. However, Madgwick J at [32] referred to the fact that His Honour had been critical of some particular matters referred to by the AAT and added the phrase "in my view generally rightly".

42. The Senior Member's reference to the "guidance" provided by the Federal Court would inevitably have suggested that he accepted that the scope of the re-hearing was to be limited to so much of the respondent's complaint as alleged that the appellant repeatedly made explicit remarks "to her" of the kind described by the Federal Court and accompanied those remarks by lewd and explicit gestures. There was nothing in the Federal Court's remarks to suggest that the evidence of "E" should be revisited or to alert the appellant to the risk that another "remarkable" finding concerning that evidence might be made. In any event, the Senior Member was re-hearing an appeal from the Discrimination Commissioner who, as I have mentioned, had ruled that the evidence was inadmissible. The appellant was not legally represented and it was, I think, incumbent upon the Senior Member to warn him if he intended to reverse that finding and act upon the evidence. His failure to do so was in my view a further error of law.

43. Furthermore, when the proceedings opened on 2 February 2000 the appellant, who appeared in person, asked the senior member whether it would assist if he provided him with copies of the latest "recitations" (sic) on recovered memories. He added, "although I am sure you are quite aware of the legal...", before being interrupted by the senior member who told him that he was happy to consider anything relevant but added "But I do not - frankly I do not think I would be greatly assisted by material of that kind."

44. Yet in accepting the evidence of "E" and finding that it substantially corroborated the respondent's complaints, the Senior Member found that the evidence that had already been adduced concerning recovered memories was of no assistance apparently because of a perception that the articles related substantially to situations quite different from those with in which "E" allegedly recovered the memories. The nature of the existing evidence is referred to later in this judgment. For present purposes it is sufficient to observe that it was unfair to, in effect, turn away further evidence on this issue and then find against the appellant on the basis of a belief that the existing evidence had been too narrowly confined.

45. I should also mention that one of the stated reasons for finding that the articles had been of no assistance was a verbal exchange that occurred between counsel who then appeared for the appellant and the AAT at the earlier hearing. Counsel had raised an issue of "transference", which he described as "people who experienced things at the time that were suggested" (sic), but when given the opportunity to provide further evidence on this issue he had declined to do so. It was plainly unfair for adverse inferences to be drawn from the failure of the appellant's counsel to provide further evidence on the issue at an earlier hearing when the appellant had subsequently proffered further evidence but been dissuaded from pursuing the issue by the senior member himself.

46. In these circumstances, it was incumbent upon the Senior Member to warn the appellant that he might regard the existing evidence as offering no assistance to any assessment of "E's" credibility and to offer him the chance to adduce further evidence and/or present further argument on these issues. His failure to do so amounted, in my opinion, to a further error of law.

47. Mr Refshauge also complained the evidence of another witness, "F" had been rejected due to factors which the appellant had not been warned might require explanation.

48. The Senior Member said, at [70], that the evidence of "F" had been potentially important to the appellant's case because "F" had been present in the office for much of the relevant time and was in a position to give persuasive evidence as to what occurred. Her evidence had been supportive of the appellant. However, the Senior Member found that her credibility had been severely damaged in two respects.

49. First, "F" had given evidence that there had been internal television showing proceedings in the Assembly and the respondent had seemed to make a special effort to watch another person referred to as "D" and had made comments describing him as a "cutie" or a "cutie pie". The Senior Member said that evidence subsequently emerged at the previous Tribunal hearing that the internal televising of Assembly proceedings did not commence until April 1995 which was well after the respondent had left. In fact, when this had been put to "F" in cross-examination she had said that whilst that evidence was strictly correct the television sets had been provided much earlier and that the staff had been able to listen to the proceedings though they had not been visually displayed until April 1995. Mr Refshauge submitted that the Senior Member's failure to advert to this explanation effectively vitiated his assessment that the evidence had been a "concoction", though this finding was challenged under another ground of appeal, namely that the Senior Member failed to take relevant considerations into account. That ground is discussed later in this judgment. So far as the present ground is concerned, I must say that the credibility of "F" had previously been in issue and I do not accept that any specific warning was necessary.

50. Second, "F" had claimed in her affidavit that she had first heard of a rumour about "D" being a paedophile when the respondent had told her of it "in a gossipy way" but in oral evidence had said that she did not remember the respondent saying anything about that. As Mr Refshauge pointed out, the affidavit had been sworn on 11 September 1995 whilst the oral evidence had been given on 17 December 1997. Hence, he argued, the inconsistency may indicate nothing more sinister than that memories fade with time and that what she had remembered when she swore the affidavit in the year after the alleged comment she had forgotten some two and a quarter years later. It may fairly be said that the proposition needed no further evidence or submissions in explanation since the fact that memories fade with time is obvious to anyone who regularly hears witnesses trying to accurately remember conversations that occurred years earlier. I accept Mr Refshauge's submission that this possibility could not have been readily dismissed and that, taken by itself, the discrepancy would not have justified the finding that no reliance could be placed on her evidence. However, the inconsistency had been fairly raised with the witness in cross-examination and I do not accept that the Senior Member had an obligation to give the appellant advance notice of the possibility that he might have taken it into account.

Taking irrelevant considerations into account

51. This ground was based substantially on the contentions that the Senior Member erred in finding that the evidence of "E" substantially corroborated the evidence of the respondent. Mr Refshauge submitted that the finding was not open to the Senior Member for a number of reasons. For present purposes it may be sufficient to mention two.

52. First, "E" did not claim that any of the words and conduct she described had occurred in the presence of the respondent. Hence, her evidence could not have provided corroboration in the sense of direct confirmation of the respondent's assertions. That is obviously correct.

53. Second, because there was no finding by the Senior Member of the precise words and conduct constituting the sexual harassment, the words and conduct described by "E" could not have provided corroborative evidence on a "similar fact" basis. Given the paucity of relevant findings I am also obliged to accept this submission.

54. The evidence of "E" is discussed more fully later in the context of Mr Refshauge's argument that having regard to all of the evidence before the AAT the decision was plainly wrong.

Failing to take relevant considerations into account

55. Mr Refshauge submitted that the Senior Member had failed to take into account a number of relevant considerations.

56. The Senior Member accepted at [55] evidence that the respondent had given another woman and her husband a "pornographic toy" in the form of plastic figures of a dog and a naked woman which, when wound up, moved in a manner calculated to portray the dog copulating with the woman. The respondent had denied on oath before the AAT that she had done so and claimed she had given them a different item. Whilst the Senior Member found that her credit had been "dented" by the evidence concerning this incident he did not give any indication that he had taken it into account in considering the respondent's claims to have felt offended, humiliated and even physically ill by the appellant making remarks and /or gestures of a sexual nature. His failure to do so was, in my view, an error of law.

57. Similarly, whilst the Senior Member accepted at [54] evidence that the respondent had written a letter to the appellant concerning her dismissal and found at [57] that her credit had been "dented" by her denials he gave no indication that he had taken the contents of the letter into account in relation to the claims made by the respondent. His failure to do so was, in my view, another error of law.

58. Mr Refshauge also submitted that the Senior Member had erred in failing to take into account the respondent's failure to complain about the alleged harassment. Mr Refshauge contended that this was also relevant to the respondent's claimed feelings. The Senior Member had not attached any significance to this failure to complain because "sexual harassment complaints are notoriously difficult matters to initiate and pursue" and the respondent would have been complaining about "an employer who had absolute power over her employment position". Mr Refshauge challenged the latter statement, observing that the respondent had a right to take proceedings in the Industrial Court for unfair dismissal and had in fact done so. Despite this observation, I must say that I could well understand that a person in the position of the respondent might have been inhibited by a feeling that her employer had power over her employment situation. I do not accept that the Senior Member's approach to this issue involved any error of law.

59. Mr Refshauge also argued that the Senior Member's failure to take into account the evidence of the witness referred to as "F" was an error of law. He submitted that the Senior Member's failure to advert to the explanation which the witness had given for her statements about the respondent watching the internal television had effectively vitiated his assessment that the evidence had been a "concoction" and that his approach in relation to the perceived inconsistencies in her affidavit and oral evidence had also been untenable. Whilst it was open to the Senior Member to reject both the explanation for her statements about the respondent watching the internal television and any other evidence given by this witness, I accept that his failure to properly consider these issues amounted to an error of law.

The contention that the decision was wrong

60. Mr Refshauge also attacked the findings that had been made by the Senior Member, arguing that they involved serious errors of fact and law and were ultimately unsustainable.

61. The Senior Member prefaced his assessment of the evidence by referring to a number of matters at [46] - [50].

Before dealing with the evidence it is necessary to refer to some matters by way of background. As the Federal Court observed at para 54:

The case was a heady brew. The main ingredients were politics and sexual issues. Indeed an unusual variety of religious experience, the third taboo for what in some circles used to be thought polite conversation, was of possible significance for one of the important witnesses. The mixture was apt to be volatile in terms of reasonable orderliness of and boundaries for the proceedings.

A significant number of persons who gave evidence, both before the Discrimination Commissioner and the Tribunal were, at material times, active members of the ACT Liberal Party. Such persons included the applicant, Mr De Domenico, "B", "C", "I", Malcolm Marshall, and "O".

The relations between Mr De Domenico and "D" were not good, the relationship having soured after Kate Carnell was elected leader of the party in April 1993. See in this regard the evidence of "I" (AAT transcript, 16 December 1995, p 82 and Tpt 1708) and Mr De Domenico's evidence (AAT transcript, 15 December 1997, p 61 and 16 December, p 33). Further, both the applicant and her husband Malcolm Marshall, lost positions in the Liberal Party and she felt ostracised by the Liberal Party as a result (Tpt 1395). The applicant felt animosity and anger towards Mr De Domenico as a result of these events (Tpt 1396-7).

The applicant and "E" were friends. "E" was particularly close to "D". These matters, combined with the summary sacking of the applicant by Mr De Domenico, made the relationship between the applicant and Mr De Domenico very difficult. Indeed one witness claimed that the applicant told him she wanted revenge against Kate Carnell and Mr De Domenico (see "C", AAT transcript, 12 December 1997, p 68). However, I am not prepared to form any conclusion on the revenge issue in the absence of corroborative evidence.

It is hardly surprising, in these circumstances, that a considerable amount of time was devoted at both earlier hearings to attacking the credit of opposing witnesses, particularly those associated with the applicant's case.

62. The Senior Member expressed considerable reservation about the extent to which he could rely upon the evidence of the respondent, stating at [57] that:

My overall assessment of the applicant's credit was that it was dented over the evidence relating to Exhibit 7 and Exhibit 11 but, because those issues were relatively remote from the main subject matter of the complaint, I am not prepared to discount her evidence on the complaint entirely. Her evidence on these particular credit issues left me with the impression that she was unwilling on occasions to make concessions she felt might damage her case. However, while I am not prepared to discount her evidence entirely, I believe that it would be unsafe to reach conclusions on her complaint based on the applicant's evidence alone.

63. Whilst these findings were substantially adverse to the respondent, Mr Refshauge submitted that the impact of the evidentiary issues to which the Senior Member referred should not have been regarded as having been materially diminished or ameliorated by any perception that the issue was relatively remote from the main subject matter of the complaint. He submitted that even the limited weight given to the respondent's evidence was not warranted.

64. The document described as "exhibit 7" (exhibit 11 in the proceedings before the Discrimination Commissioner) was a letter ostensibly written by the respondent to the appellant on 24 October 1994, the day before the letter of dismissal. It apparently adverted to the appellant's intention to dismiss her, expressed the view that she deserved some sort of explanation and protested about the shortness of notice. It included the statements:

I have for a long time felt that you do not "feel comfortable" with me. I have been hoping you would at some time or another take the time and trouble to try to get to know me, at least a little. We could have worked together very well but in many ways you have never given me a chance.

You may not want me permanently but I would respectfully ask that you reconsider the two week period - at least until the end of the year.

That way, at least, I will have a little time to look around and be given a bit of an opportunity to leave "with face". The two week way you are really "backing me into a corner", so to speak.

65. It had been suggested, in essence, that the respondent would not have written to the appellant in the terms of this letter if she had been subjected to the constant pattern of sexual harassment she had alleged. She had claimed that by April 1994 she had felt the appellant's manner was "dirty and dehumanising" and he had made her ill, by April or May she had begun to feel threatened on occasions, by July she was depressed and isolated from her husband because she had been sickened and intimidated by what was happening, by August she felt at times like she had been sexually assaulted, "from August /September /October" there had been "a sustained and systematic campaign of abuse" and in October it had become impossible for her to "hold on" and her health had been affected. It would obviously have been difficult for the Discrimination Commissioner to have accepted these claims given the expression of concern that the appellant may not have felt comfortable with the respondent, the hope that he would have taken the time to get to know her and the assertion that they could have worked well together. More importantly, the letter suggested that in October, when the respondent had claimed to be unable to `hold on', she was seeking to retain her position if not permanently at least until the end of the year.

66. The respondent sought to overcome this difficulty by claiming that she had not written the letter. In sworn evidence before the Discrimination Commissioner and again in sworn evidence at the earlier AAT hearing she denied that it was her document. In the latter hearing she lent emphasis to her denials, asserting that:

I just know, I can say, on my oath I did not originate that document.

I see, you swear to that, do you? That's right.

67. In the Statement of Facts and Contentions submitted by the respondent prior to the hearing she referred to the evidence given about the document by another witness and contended that the witness had "colluded with Mr De Domenico to give false evidence on his behalf regarding this document and its true authorship".

68. Yet there was ample evidence, including expert evidence from a handwriting expert, to prove that it was her document. The Senior Member [at 54] found the respondent's evidence on the issue "evasive and unconvincing" and said that the evidence of the handwriting expert, Mr Starch, had "dispelled any residual doubt" that the respondent may not have been the author of the letter.

69. Furthermore, the Senior Member added, "I was frankly puzzled by the applicant's reluctance to agree that she was the author of this document". In the context in which it was made, this comment plainly implied that the Senior Member did not accept that the respondent had been honestly mistaken about the matter but rather that she had lied about it. That impression is confirmed by the subsequent finding by the Senior Member at [57] that the respondent's credit had been "dented" over the evidence and the fact that the only reason offered for his unwillingness to wholly discount her evidence was his perception that it and the other issue to which he had referred "were relatively remote from the main subject matter of the complaint". It is further confirmed by the Senior Member's comment that the impression he was left with on these credit issues was that the respondent was "unwilling on occasions to make concessions she felt might damage her case". Indeed, having regard to the evidence, a finding that she had lied about the issue was virtually inevitable.

70. This finding should have been seen as having a devastating effect on the respondent's credibility. It not only implied that she had lied on oath before the Discrimination Commissioner and the AAT but that she had falsely accused another woman who had given evidence about its authorship of colluding with the appellant to give false evidence.

71. I accept Mr Refshauge's submission that the impact of the finding should not have been regarded as having been materially diminished or ameliorated by the Senior Member's perception that the issue was relatively remote from the main subject matter of the complaint. As a matter of law, it was open to the Senior Member to accept part of a witness's evidence even though he did not accept other parts of it. In some circumstances such an approach might be understandable. For example, the member of a tribunal might reasonably find that a witness had given a truthful account of some incident even if convinced that the witness had lied about the reasons for being in the vicinity to avoid revealing some intensely personal aspect of his or her life. In the present case, however, the perceived remoteness of the issue to which the false evidence was directed provided no logical reason to suppose that the respondent would have been less likely to lie about the main subject matter of the complaint. Indeed, it is difficult to understand how lies about a letter the terms of which were arguably inconsistent with the truth of her allegations of sexual harassment could have been so regarded.

72. On the contrary, the finding necessarily required due consideration of the obvious risk that a person who had lied about one aspect of the case might have lied about others. It also required due consideration of the risk that a person who had been willing to falsely accuse a woman of colluding with another person to, in effect, commit perjury might have been willing to falsely accuse a man of sexual harassment.

73. The evidence concerning "exhibit 11" related to the "pornographic" toy to which I referred earlier. The Senior Member accepted the evidence of "C" that the respondent had bought an identical item for his wife and him and rejected the respondent's claim that the item she had given them had been quite different. The Senior Member found at [55] the applicant's evidence on this issue "unconvincing" and said that he preferred the evidence of "C". As Mr Refshauge pointed out this finding was significant not only because it provided further grounds doubting the credibility of the respondent's evidence generally but because the incident cast doubt upon her complaints of feeling offended, humiliated and even physically ill because of the appellant making remarks and /or gestures of a sexual nature.

74. There had been other attacks on the respondent's credit. Most notably, the witness referred to as "C" had given evidence that the respondent had told him that she wanted revenge against the Chief Minister and the appellant. The Senior Member made no finding concerning this allegation. Indeed, he said, at [49], that he was not prepared to form any conclusion about the issue in the absence of corroborative evidence. There was no basis in law for such an approach. It is true that the Senior Member had not had the opportunity of observing the witness give evidence and that his ability to make a judgment about the credibility of the evidence was thereby limited. However, that was a necessary corollary of the approach which had been accepted by both parties and whatever difficulties it presented did not justify an assessment of the case which omitted any consideration of this evidence.

75. The appellant was entitled to have the evidence considered and, if found credible, taken into account in the assessment of the case against him. Furthermore, he was entitled to have that evidence considered in the context of other evidence in the case. The first letter of complaint dated 21 November 1994 related to the respondent's dismissal and mentioned comments of a sexual nature only as one of three possible explanations for that dismissal. The "outcome" sought was a written apology, "comments clearing [her] name" and a financial settlement for wrongful dismissal. The letter of 24 October 1994 which the respondent denied writing had also been concerned with her dismissal and her husband gave evidence to the effect that she had been visibly shaken at the time of her dismissal. Furthermore, some of the affidavit and other documentary material which the respondent prepared could fairly be described as vitriolic. In this context, evidence that the respondent had wanted revenge for that dismissal could not have been dismissed as inherently implausible and the Senior Member did not purport to do so. His refusal to consider the question was a further error of law.

76. Having considered the respondent's evidence carefully, I have concluded that the Senior Member's view that it would be "unsafe to reach conclusions on her complaint based on the applicant's evidence alone" was entirely justified and I do not accept that this approach, of itself, revealed any error of law or fact.

77. However, Mr Refshauge was on firmer ground in arguing that the respondent's evidence had not been substantially corroborated by "E" and that, even if it had been, the combined weight of their evidence was insufficient to warrant the findings of sexual harassment. Even if one were to ignore the evidence suggesting that the respondent may have been actuated by a desire for revenge, it is clear that the evidence of the respondent should have been given little weight. Consequently the findings must have been heavily dependent upon the credibility of "E's" evidence and the extent, if any, to which it may have provided corroboration of the respondent's complaints.

78. Regrettably, the evidence given by "E" did not justify the weight apparently attributed to it. In fact, the approach taken in relation to the evidence of this witness was quite extraordinary. After referring to various aspects of the evidence which had been relied upon to cast doubt on her credibility, the Senior Member stated at [61]:

My impression of "E's" evidence is that, notwithstanding its distressing moments, it came through with clear cogency under cross-examination. I concede I did not have the benefit of seeing her give evidence but I suspect, if I had, she would have been more impressive.

79. The latter statement seemed to reflect a leap of faith rather than a reasoned appraisal of the evidence. Furthermore, there were strong grounds for concluding that any such faith was misplaced. The Discrimination Commissioner had had the benefit of seeing "E" give evidence and, whilst accepting that she had given her evidence honestly, found her allegations of the appellant making certain indecent gestures so unreliable that she declined to admit it in evidence.

80. Yet much weight seems to have been placed on this flimsy platform. The next sentence in the reasons for judgment by the Senior Member was as follows:

Accordingly, I conclude that "E's" evidence has not been affected by these attacks on her credit and she has emerged as a persuasive witness.'

81. It is, of course, obvious that speculation as to how impressive the witness might have seemed if the Senior Member had seen her give evidence offered no sensible basis for him to conclude that she was a persuasive witness.

82. It is possible that the Senior Member's conclusion was based substantially upon the impression which he had formed from reading the transcript of "E's" evidence before the Discrimination Commissioner, and that the reference to his speculation about how impressive she might have been had he seen her give evidence was merely an incidental comment rather than a link in the chain of his reasoning. However, the fact that the comment immediately preceded the word "accordingly" strongly suggests that the conclusion was based, at least in part, upon the proposition thereby conveyed. If it was, then the formation of his conclusion by reference to such speculation plainly involved an error of law. In any event, the interpolation of the comment certainly injected considerable confusion into his account of his reasoning process.

83. Furthermore, even if the most charitable interpretation of this passage were to be adopted, it could not validate the approach taken. The Discrimination Commissioner's view that "E's" evidence had been unreliable was entirely understandable. "E" was a friend of the respondent and her allegations of the appellant making indecent gestures had been made for the first time on 16 November 1995 in cross-examination before the Discrimination Commissioner. She explained her failure to have referred to any such conduct in her affidavit two months earlier by stating that she had not then remembered it. She claimed that prayer counselling had subsequently assisted her in the reconstruction of memory. She said that it had taken her some time to accept that she needed counselling "because I thought that I was dealing with the fact that I had been sexually abused as a child but I obviously wasn't . . .". She said that she had two sessions, one of six hours and one of two hours. They involved "bringing forth memories that are there and trying to stop myself from repressing things that I find unpleasant". During the course of the prayer counselling she experienced both physical and emotional pain. The memories that returned spanned the whole period from her childhood to the present and included memories of being abused as a child and physical abuse of her children by her ex-husband. "E" rejected the possibility that what she recalled may not have been genuine memories but "reconstructions" and said that she did not believe that there could be reconstructions. People either fabricated the incidents they claimed to recall or the memories were true.

84. There was abundant expert evidence that this assumption was incorrect. For example, an article by Dr Bruce Stevens "The Reality of Repressed Memories of Sexual Abuse" quoted research confirming that "new, post event information often becomes incorporated into memory, supplementing and altering a person's recollection." Dr Stevens referred to an article also in evidence, by an American psychologist, Elizabeth Loftus "The Reality of Repressed Memories", American Psychologist, May 1993 pp 518-535 in which the author had suggested that "honestly believed but false memories might come about through internal or external sources". She gave examples of false memories and concluded at p 533 that: "These examples provide further insights into the malleable nature of memory. They suggest that memories for personally experience[d] traumatic events can be altered by new experiences. Moreover, they reveal that entire events that never happened can be injected into memory. Dr Stevens also cited another note of caution sounded by a psychiatrist, Dr Fred Frankel, and mentioned a former student who had come to have memories of being sexually abused but later become convinced that they had been false. In his concluding remarks he quoted the observation of Loftus that "We presently do not have the tools for reliably distinguishing the signal of the true repressed memory from the noise of the false ones".

85. The senior member said that he did not find these articles of assistance for three reasons.

86. First, he said, at [59], that "they were concerned mainly with the repression and reconstruction of memories of childhood experiences in sexual abuse cases". This was statement was not wholly incorrect. The articles had been prompted by cases of this kind and were substantially concerned with them. However, the statement did not adequately reflect the evidence provided by the articles. They were by no means confined to cases of the kind mentioned. On the contrary they included references to cases in which memories had apparently been constructed or reconstructed shortly after the incident allegedly recalled and cases involving no suggestion of sexual abuse. Indeed, one example in Dr Loftus' article was drawn from a study of children's recollections of a sniper attack at a school when several of the children interviewed were found to have had memories of the incident even though they were not present at the time.

87. Second, the Senior Member said that "the articles raise questions about memories which are reconstructed by hypnosis and other similar techniques. This is a long way from relatively unsophisticated prayer counselling which assisted "E" to remember something she may have wished to suppress." If this statement was intended to convey the impression that the articles raised questions only about memories created in such a manner then it was clearly incorrect. In fact Dr Loftus at p 533 of her article said that the cases referred to in her study demonstrated that "false memories can be created by a small suggestion from a trusted family member, by hearing someone lie, by suggestion from a psychologist, or by incorporation of the experiences of others into one's own autobiography". A further article "Memory Repression in Child Sex Abuse Cases" by Campbell Thompson, Law Institute Journal, December 1994 pp 1162-1165, had quoted other examples of false memories and evidence said to show that people could come to believe they had experienced some event even in the absence of hypnotic suggestion.

88. Third, as I have already mentioned, the Senior Member referred to the fact that at the earlier hearing before the Tribunal it had been suggested that counsel for the appellant might provide further evidence on this issue but had declined to do so. This statement was also disturbing. It is difficult to see how the fact that a barrister had previously declined to adduce further evidence could have deprived the evidence that had already been adduced of probative value or absolved the Senior Member from the obligation to consider it.

89. Furthermore, as I have already observed, it was plainly unfair for adverse inferences to be drawn from the failure of the appellant's counsel to provide further evidence on the issue at an earlier hearing of the AAT when the appellant himself had proffered further evidence but been dissuaded from pursuing the issue by the senior member.

90. It was, of course, open to the Senior Member to reject the expert evidence or to accept the evidence of "E" notwithstanding the notes of caution thereby sounded. However, his failure to properly consider it was an error of law.

91. Appellate courts do not readily set aside findings of fact based upon assessments of credibility by courts or tribunals. In Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472, Brennan, Gaudron and McHugh JJ observed at 479:

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact . . . the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable".

92. More recently, in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 160 ALR 588 Gaudron, Gummow and Hayne JJ cited at 589 the passage which I have quoted and observed that in the same case Deane and Dawson JJ had pointed out "that no short exhaustive formula such as "glaringly improbable", meets every case". Their Honours noted at 607 that the fact that the trial judge had been heavily influenced by his impression of a witness whilst giving oral evidence did not preclude a court of appeal from concluding that, in the light of other evidence that the judge had had "too fragile a base to support a finding that a witness was unreliable". In the same case Kirby J referred at 617 to a "growing understanding . . . of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in . . . the courtroom."

93. In the present case, however, the Senior Member had not had the advantage of evaluating the credibility of the "E's" evidence by her appearance and demeanour. He had made his assessment merely by reading the transcript of her evidence and that course has also been available on appeal. Furthermore, for the reasons already given I have been forced to conclude that his assessment was vitiated by errors of both law and fact.

94. Whatever the validity of the expert opinions concerning recovered memories, there were obvious grounds for concern about the reliability of evidence of "E". No matter how open one may be to the reality of religious experience, one would have to approach with great caution claims that a person had deliberately "blocked out" the memory of a man making indecent gestures a year or two earlier and spontaneously recovered them during prayer counselling sessions. The fact that "E" had engaged in those sessions for the purpose of "recognising" incidents of abuse so that she could "confront and address them" added to the need for caution. The absence of expert evidence supportive of the validity of "memories" recovered in this manner provided further grounds for caution, especially in the absence of any evidence to suggest that the accuracy of other memories recovered during the same process had been independently verified by those allegedly abused. It was also disturbing to note that, though a friend of the respondent, "E" did not tell her or anyone else of the memories concerning the appellant during the weeks that followed their alleged recovery. Indeed, she mentioned the recovery of the memory for the first time on the day that the respondent finished giving evidence which included reference to acts of a similar nature.

95. The respondent again called "E" as a witness at the first of the re-hearings before the AAT but asked her no further questions concerning her allegedly recovered memories. She was not called to give oral evidence before the Senior Member.

96. In all of the circumstances, it is difficult to accept the suggestion that the Senior Member could discern the "clear cogency" of the evidence which "E" gave before the Discrimination Commissioner, especially when that cogency had not been clear to the Discrimination Commissioner herself.

97. Furthermore, the Senior Member made no finding that any of the remarks or gestures described by "E" had been made in the presence of the respondent and, as Miles CJ had observed at [42] in dealing with the appeal from the earlier AAT decision, the evidence did not appear capable of establishing that they had been. It was for this reason that His Honour had expressed the view that it was difficult to see how evidence of the gestures could have assisted in establishing sexual harassment of the respondent by the appellant.

98. The Senior Member noted at [66] that the other main evidence in the respondent's case had been given by her husband. He explained that "the relevance of [his] evidence was to provide particulars of the extent to which the [respondent] disclosed to him her concerns about Mr De Domenico's conduct." He concluded that Mr Marshall's evidence did not advance the respondent's case in any material respect.

99. In fact, the evidence given by Mr Marshall was somewhat discursive, possibly because he knew little of the allegations let alone the true position. In his evidence before the Commissioner, Mr Marshall explained that when the respondent had asked him to provide an affidavit he had told her that it was difficult for him to be specific about things because he had been distanced from the scene. He could only give his impression of the things he observed and particularly the way that the respondent had changed during and after the relevant period. He said that he had not known "what the harassment was." Despite these limitations he gave some evidence of his wife mentioning some of the matters that later formed the subject of her complaints. However, his evidence was not wholly consistent with that of the respondent. For example, he said that he first noticed that she was becoming more stressed, agitated and short tempered around May/June 1994 but that when he asked her the reason for this she told him that she was frustrated because her work was not proceeding as expected. He also found her agitated and short tempered with him on his weekends at home. His affidavit had included the statement that she had become visibly shaken but when asked when this had occurred he said that she had been visibly shaken about her dismissal.

100. Having considered his evidence carefully I have formed substantially the same conclusion as the Senior Member, namely that, viewed over all, it did not materially advance the respondent's case. In any event, this finding was not challenged.

101. The only other evidence specifically addressed in the relevant portion of the reasons for the decision of 23 March 2000 was the evidence of the appellant and a number of witnesses called on his behalf. For present purposes it is sufficient to record the Senior Member's own account of this evidence at [29] - [37]:

29. In the course of his oral evidence before the Discrimination Commissioner Mr De Domenico (Tpt 1930) agreed that he sometimes used robust, colourful language and swore (when things didn't go his way) but denied speaking in a sexually explicit way; and (Tpt) 1954) he denied he had ever placed his hand on his groin in public saying: "I'm not in the habit of scratching the area of my groin in public, I've got to say, nor in private". Also at Tpt 1957 the following exchange took place between himself and his counsel Mr Refshauge, namely: "You deny any sexually oriented gesture by way of touching in the area of genitalia, your own genitalia?---Yes".

30. In addition there were a number of witnesses who gave evidence in the hearings before the Discrimination Commissioner and the Tribunal on Mr De Domenico's general use of language and his propensity to engaged in conduct of the kind alleged by the applicant and "E".

31. "BB", a member of the Chief Minister's staff at the time, in a statement dated 23 November (T5 33) said:

I knew Mr Tony De Domenico on a casual social basis over the 4 years prior to commencing work with the Opposition Leader and now Chief Minister. During that time I found Mr De Domenico to be charming and pleasant. I do not recall him making any offensive comments to me or within my hearing.

"F" who worked in Mr De Domenico's office at the time, deposed in her affidavit, sworn on 11 September 1995, (T5 14):

9 In relation to the whole of the affidavit (that is Mrs Marshall's affidavit), I have never seen or heard Mr De Domenico make obscene gestures or comments of the kind stated by Mrs Marshall.

10 Although I spent a considerable amount of time in the same office as Mrs Marshall, I never saw her appear uncomfortable, intimidated or frightened by Mr De Domenico. She generally seemed to be relaxed, maybe even bored.

"B", a former Liberal candidate, said in her affidavit sworn 6 October 1995 (T5 15b):

4 Mr De Domenico often spoke in a sexual way about women in his sphere of influence such as journalists, MLA's their staff and others.

5 At the time I did not take much notice of Mr De Domenico's language but on reflection I do recall that it seemed to have a deleterious effect on Mrs Marshall. She would often say "Oh Tony", in a cautionary tone.

32. In her oral evidence before the Discrimination Commissioner "B" stated (Tpt 1573):

. . . Mr De Domenico did make jokes that were sexually explicit but having worked in the Federal Parliament for a year myself, I don't think it was outside the sort of things that the robust sort of comments that male politicians make from time to time.

33. Sandra Littlewood, another member of the Chief Minister's staff, in an affidavit sworn on 12 September 1995 (T5 16) deposed as follows:

6 I recall Mr De Domenico joining in with the banter on some occasions, but I never heard him make explicit statements of the type described in Mrs Marshall's complaint. His banter was more along the lines of double entenderes, not graphic sexual comments. I cannot imagine Mr De Domenico making obscene gestures of the kind described by Mrs Marshall.

Mrs Marshall was present during some of the banter which occurred. I cannot specifically recall any jokes she may have made, but I also do not recall her not participating in the chatter. I also cannot recall her ever commenting or indicating that any thing said by Mr Domenico or any other person had upset or offended her. Mrs Marshall never shrank from banter in my presence, whether we were in female or mixed company.

34. "I", a member of the Attorney-General's staff, said in oral evidence (Tpt 1709/10) that Mr De Domenico used the "F" word in a general sense (such as "the f . . .ing car won't start") but not in a sexual sense around him.

35. In a statement exhibited to her affidavit (T5 18) sworn on 4 September 1995 "AA", a marketing sales consultant, deposed:

Mr De Domenico never made "crude" comments, or statements with explicit sexual comments to me. I found him to be humorous and inoffensive.

36. "O", another member of the Chief Minister's staff, in her affidavit (T5 22) sworn 12 September 1995 deposed as follows:

In my dealings with Mr De Domenico, I found that he was lighthearted, quickwitted and funny . . . Mr De Domenico did not make explicit sexual comments, nor say anything that ever offended me.

37. "H", another member of Mr De Domenico's staff, gave oral evidence before the Tribunal to the effect that Mr De Domenico did not say anything offensive or with sexual overtones while she was working for him. (See Tribunal transcript of 17 December 1997, page 45). It should be noted here that "H" worked in the office on a part-time basis and only for a short time during the material period. This can be contrasted with "F", who worked substantially full-time in Mr De Domenico's office during the material period.

102. The Senior Member's assessment of the appellant's case was briefly stated. He said at [67] that:

I turn now to assess the evidence in support of Mr De Domenico's case. It consists of four main elements, namely:

(a) Mr De Domenico's quite specific and comprehensive denials on oath that he ever engaged in the alleged conduct.

(b) Testing the credit and/or recollection of witnesses, particularly the applicant, "E" and Malcolm Marshall.

(c) The evidence of a number of persons to the effect that, in their experience, Mr De Domenico did not, and by implication would not, engage in conduct of the kind alleged.

(d) The evidence of "F" as to what occurred or did not occur in Mr De Domenico's office.

103. Having made these remarks the Senior Member did not mention the appellant's evidence again. The appellant has been left to deduce from the result that his evidence was not wholly accepted but has been given no indication as to whether it was wholly rejected or, if not, what portions were accepted and what were rejected. The Senior Member gave no indication that he regarded any part of his evidence as internally inconsistent, inherently implausible or otherwise lacking credibility. It may be presumed that he preferred the evidence of the respondent "substantially corroborated by "E"", though having regard to the weakness of that evidence it is difficult to understand how he could have done so. However, no other reason was advanced for doubting the truth of the appellant's evidence.

104. The evidence of the other witnesses who gave evidence on the appellant's behalf was ultimately discounted by the Senior Member at [69] on the following basis:

In the final analysis, this becomes a issue of whether to prefer direct evidence on the question, or circumstantial evidence. I prefer the direct to the circumstantial evidence. It is not only for the reason that, all things being equal, direct evidence should be preferred; but also, there is the fact that persons are perfectly capable of acting one way in some circumstances and another way in other circumstances. This is more likely to occur in circumstances where a person as (sic - has) substantial power over another as is the case here . . .

105. Whilst the latter observation was not without cogency, this approach was overly simplistic and ultimately unfair to the appellant. No final analysis required that the value of this evidence be gauged by reference to a single question of the kind posited. There is certainly no legal principle that would entitle a tribunal of fact to disregard evidence on the basis of such a preference. If there were, many criminal cases could not be effectively prosecuted. Furthermore, the evidence of "E" was not direct evidence of the specific words and acts said to have constituted sexual harassment of the respondent. Hence the approach was both inappropriate and inconsistently applied. In the end result, the Senior Member acted on evidence from one witness as to a propensity to speak and act in a manner consistent with the respondent's complaints but completely disregarded evidence from a number of witnesses as to absence of any such propensity. The appellant was entitled to have the favourable evidence of his character and propensity taken into account. In considering the weight of the competing witnesses it would have been open to the Senior Member to have taken into account the possibility that the appellant may have acted in one way with some people and in another way with others. However, that was not the only relevant consideration. Some of the witnesses for the appellant had known him for many years. Others denied that he had made sexually inappropriate comments in their presence in answer to allegations by the respondent that he had done so whilst she was also present. The failure to properly consider this evidence was another error of law.

The disposition of the matter

106. Mr Refshauge submitted that if I were to conclude that the decisions of the Senior Member had miscarried, s 46(5) of the Administrative Appeals Tribunal Act 1989 conferred a wide discretion as to the future disposition of the matter. That subsection provides that the Supreme Court shall hear and determine the appeal and may make "on the appeal":

(a) an order affirming or setting aside the decision of the Tribunal;

(b) an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court; or

(c) such other order as the Court, in its discretion, thinks appropriate having regard to its decision.

107. There is an interesting though I am inclined to think ultimately unimportant question as to whether this provision has any application to an appeal in which the appellant has sought to invoke the jurisdiction conferred by s 48A of the Australian Capital Territory (Self-Government) Act 1988 and/or s 20 of the Supreme Court Act. It may be argued that the phrase "on the appeal" refers to a more limited appeal under subs 46(1) of the Administrative Appeals Tribunal Act. However, in my view the conferral upon the Supreme Court of "all original and appellate jurisdiction that is necessary for the administration of justice in the Territory" is plainly sufficient to enable the court to dispose of the matter in the most appropriate manner.

108. Faced with a somewhat similar dilemma in September 1999, Madgwick J observed at [68]:

I see no alternative to the melancholy course of remitting for further hearing by the AAT a matter as to which the Discrimination Commissioner thought nothing unlawful under the Act could be found to have occurred and the AAT, showing a willingness to overlook problems about the complainant's evidence, saw fit to award only $1,500 in compensation. Already this matter has occupied many days of public and private time and energy, at substantial financial and other cost to Mr de Domenico and probably at substantial non-financial cost to Mrs Marshall.

109. Since then there has been a further hearing before the AAT and now a further appeal to the Supreme Court. The appeal before me has involved questions of fact as well as questions of law and the decision appealed from did not involve any findings of fact based upon the Senior Member's assessment of the credibility of witnesses by reference to their demeanour in the witness box. The transcripts and exhibits upon he relied are equally available to me. Hence, on this appeal I am in as good a position to resolve the factual issues as the Senior Member was when he determined the matter in the AAT. This situation is quite different from that which confronted the Full Court in September 1999. Furthermore, the cost, both financial and non-financial, to both parties has no doubt increased substantially since that time and to again remit the matter to the AAT would inevitable involve further expense and delay. In all the circumstances I have concluded that the interests of justice would best be served if I were to make a fresh determination of the complaint.

110. As the Senior Member observed at [44], the truth of the allegations forming the subject of a complaint must be proven to the requisite degree of satisfaction and it is appropriate for anyone determining such issues to be guided by the oft-quoted explanation of Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-363:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. . . .This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues [references omitted]. But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.

111. Having examined the whole of the evidence in this case in the light of these principles, I must say that I do not have the requisite degree of satisfaction that the appellant spoke to the respondent in the manner alleged or that he made the gestures alleged. Nor am I satisfied that the respondent would have had the emotional reaction claimed even if he had behaved in such a manner. On the contrary, I am left with a strong feeling of disquiet about the truth of the allegations.

112. The evidence of the respondent was, in my view, most unsatisfactory. I am not the first to make that observation. The Discrimination Commissioner was not satisfied of the complaint, the three members of the AAT who made the earlier decision found that the respondent's evidence had been exaggerated and the Senior Member expressed the view that it would have been unsafe to have reached conclusions about her complaint on her evidence alone. I have made an independent assessment of the evidence without regard for these opinions but have concluded that very little weight should be given to her assertions.

113. The respondent clearly lied on oath about the letter which, despite her denials, I am satisfied she wrote to the appellant. In the Statements of Facts and Contentions filed in the AAT in 1997 she falsely claimed that the letter was a forgery and falsely accused another woman who worked in the office of having colluded with the appellant to give false evidence about it. The respondent accused at least five witnesses apart from the appellant of giving false evidence. She accused senior counsel of having unethically "leaked" confidential documents and "in camera" evidence to The Canberra Times, attempting to intimidate a witness and otherwise acting maliciously and vindictively. There was, of course, no evidence to support such claims. She accused the Discrimination Commissioner of acting in a manner "designed to advantage De Domenico" and of "actively discriminating against [her] by colluding with [the appellant] and his lawyers". These allegations were quite unwarranted and the respondent again made no attempt to substantiate them. The approach reflected in the Discrimination Commissioner's lengthy written judgment was scrupulously fair and she should not have been subjected to such slurs on her personal integrity.

114. In short, the respondent has not only been willing to lie on oath but to make wild and damaging allegations against other people apparently with scant, if any, regard for their truth. It is difficult to see how evidence so lacking in credibility could have provided an adequate basis for any finding of fact, let alone one attributing substantial moral and legal turpitude to another person.

115. It is also difficult to see how any corroborative evidence could have lent sufficient probative value to her assertions to justify such a finding unless, of course, that corroborative evidence was capable, or almost capable, of independently establishing the truth of the allegations.

116. The evidence of "E" is more difficult to assess without having had the opportunity of seeing her give evidence. She had given evidence before the Discrimination Commissioner and the first AAT hearing on behalf of the respondent but the respondent declined to call her to give further oral evidence in the second AAT hearing before the Senior Member. The Discrimination Commissioner said that she had considered "E's" evidence carefully and that she considered her to be an honest person who believed what she had said on oath. However, the Commissioner identified a number of reasons for doubting whether the incidents described had actually occurred. She was not satisfied about the accuracy of the recovered "memories" of indecent gestures and observed that though "E" had claimed that other people had sometimes been present she was unable to recall who they were and, apart from the respondent, the evidence of no other witness supported her claim. The Discrimination Commissioner also referred to "E's" evidence that as soon as the appellant began to make an offensive comment she would turn and leave the office. The Commissioner thought that this raised a question as to whether the appellant had made a comment of the type attributed to him or whether he may have said something which the witness misinterpreted because she had denied herself the opportunity to hear it in full. She also noted that the comments which "E" attributed to the appellant did not tally with those alleged by the respondent. The witness had claimed that the appellant had made other statements but that she had chosen not to remember them and could no longer do so. The Discrimination Commissioner said that she had been left with a picture of a person who was "very sensitive to robust language" and believed that certain statements had been made. However, the Commissioner was not satisfied on the balance of probabilities that the incidents alleged had occurred. Whilst the earlier AAT decision had been based in part upon an acceptance of "E's" evidence, as I have ;previously mentioned Miles CJ had found, at [42], this "remarkable". With respect, I agree with that view.

117. I have again made an independent assessment of this witness' evidence and, even unaided by any impression of her in the witness box, have formed a substantially similar view to that of the Discrimination Commissioner. "E" said in her evidence that she was particularly sensitive to remarks of a crude and sexual nature and that she may have been more inclined to find risque comments distasteful than some people. It must also be remembered that these conversations had occurred more than a year before "E" gave evidence and that the respondent who was her friend had accused the appellant of sexual harassment in the intervening period. She may have misinterpreted what the appellant had been attempting to say or the appellant may have expressed something clumsily, not intending the sexual connotations attributed to it. It is possible for people who are unusually sensitive about certain topics to take offence at comments that were not intended to be offensive. That risk is compounded when, as "E" mentioned, most of the time the person was speaking in "a joking way". Furthermore, it is always difficult to be satisfied about precisely what was said in conversations that occurred a long time ago. I think it is likely that the "memories" recovered were the product of vague recollections of the respondent's complaints and the emotional intensity of the experience in which they allegedly returned.

118. Whilst the respondent called evidence that the appellant sometimes passed on gossip and some of the witnesses took the opportunity to make other complaints about him, the other evidence in the case provides little support for the respondent's complaints.

119. With due respect to those who have approached the matter differently, I am unable to be confident that a solid kernel of truth can somehow be sifted from amongst the lies, exaggeration and false accusations contained in the respondent's evidence. Nor can I accept that, despite this dishonesty, her evidence should be accepted as reliable because of claims by "E" concerning "offensive" remarks by the appellant and/or her allegedly recovered memory of hitherto forgotten gestures on unspecified occasions.

120. On the other hand, the appellant gave apparently credible evidence denying the allegations. He did not claim to always speak like a saint. As the Senior Member mentioned at [29], he agreed that he sometimes used "robust, colourful language" and swore when things didn't go his way. However, he denied speaking and acting in the manner that the Senior Member found amounted to sexual harassment. Nothing emerged in cross-examination to cast doubt on the veracity of his evidence and there was no apparent reason not to give it substantial weight. There was also a considerable body of evidence to confirm that to the knowledge of the witnesses concerned he did not speak or act in the manner alleged. In the absence of any adverse finding based upon the demeanour of the witnesses there is no apparent reason to doubt the truth of this evidence apart from the fact that it tended to contradict the assertions of the respondent and to some extent those of "E".

121. The Discrimination Commissioner found that the respondent's complaints had not been substantiated and dismissed them. More than five years have elapsed since and there have been a series of appeals, two of which have involved re-hearings of a kind which gave the parties the opportunity of calling further evidence. Yet despite these opportunities the evidence adduced in support of the complaints is clearly insufficient to sustain them.

122. Sexual harassment is an insidious, pervasive and damaging practice which should be vehemently condemned by every decent member of the Australian community. The relevant provisions of the Discrimination Act 1991 were intended to provide a remedy for those who have been subjected to sexual harassment and, conversely, a deterrent to those tempted to engage in it. Furthermore, it is now clear that some of the attitudes previously evident in widespread scepticism of such allegations were misconceived and unfair and that complaints of conduct amounting to sexual harassment should always be taken seriously. However, that does not mean that allegations must be accepted without regard for the reliability of the evidence offered in support of them. In each case it is necessary to examine the evidence fairly and without reference to presupposition in order to determine whether the allegation has been established to "the reasonable satisfaction of the tribunal" as explained in the passage from Briginshaw v Briginshaw quoted earlier in this judgment. A naïve acceptance of evidence which is obviously unreliable will not assist in stamping out sexual harassment or otherwise advance the interests of justice. On the contrary, it will merely risk undermining the credibility of complaints of this kind and unjustifiably destroying the career and reputation of people who have not been guilty of such conduct.

123. Whilst, as I have mentioned, I am acutely conscious of my limited ability to make judgments as to the credibility of the parties and other witnesses when I have not had the opportunity of observing them in the witness box, the evidence which was before the Senior Member and is now before me not only fails to provide me with any reasonable satisfaction of the truth of the allegations but leaves me reasonably satisfied of their falsity.

124. The appeals must be upheld, the orders of the Senior Member set aside and, in lieu thereof, orders made dismissing the appeal from the decision of the Discrimination Commissioner and confirming that decision.

125. I will hear counsel as to costs.

I certify that the preceding one hundred and twenty five (125) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 24 May 2001

Counsel for the appellant: Mr R Refshauge

Solicitor for the appellant: Sutherland and Tiirikainen

Counsel for the respondent: Ms M Marshall, self represented litigant

Date of hearing: 22 March 2001

Date of judgment: 24 May 2001