Reasons delivered by Judge Gregory Egan from the FCFC are invariably intriguing, so we’re happy to find space for him in the pages of Justinian.

And here he is with Kruger v Thompson, where the applicant Jana Kruger sued for compensation, claiming she had been sexually harassed by her then stepfather, Alan Thompson, and discriminated against at her place of work, a wedding events venue managed by Thompson, a former chef, see: Sex Discrimination Act section 28B. 

After 83-pages, Egan dismissed the application, finding the evidence from both parties was unsatisfactory and inconclusive. Not even Dan Gorman SC for Jana could meet the onus. 

Arriving at his non-finding, HH sought guidance from a House of Lords case about a sinking ship, advice from Sherlock Holmes to Dr Watson, slabs of Justice Lee in the Lehmann defamation case, and ASIC’s Quintis case in the Federal Court. 

His opening paragraph set the scene: 

“This proceeding centred around what relevantly occurred between the applicant (Kruger) and the first respondent (Thompson) between the late hours of 12 January 2019 and the early hours of 13 January 2019 when sexual intercourse occurred between them.” 

In November 2021, Thompson had been acquitted of raping Kruger after a two day trial in the District Court of Queensland. Kruger came back with a civil claim. 

Thompson, Kurger and Kruger’s mother, Mariana Thompson, were all involved, to varying extents, in the operation of the Flaxton Gardens wedding centre in the Sunshine Coast hinterland. 

Thompson knew that Jana was on a daily cocktail of prescription drugs: Zoloft (150mg); Diazapam (10mg); Melatonia; and Stilnox. He also knew she had been sexually abused as a child by a family member and needed the pills to keep calm and to sleep.  

The conflicting evidence boiled down to happy consensual seduction and sex versus unwelcome advances. The side effects of the drugs, coupled with alcohol, played a significant part of Jana’s case. 

After a networking event at Flaxton Gardens, the applicant claimed that Thompson made it clear that he wanted her “on the side”. 

The networking event, where Jana was taking photos, was followed by various close encounters – kissing, undressing, oral sex, and intercourse. The applicant maintains she was woozy, wanted to go to sleep and told Thompson she did not want to have sex with him. 

She reminded Thompson about some of his family history – that his stepfather had allegedly sexually abused his sisters. 

Jana Kruger: said sex with her much older stepfather, for who she worked, was not consensual

For his part, the respondent maintained Jana welcomed him massaging her legs and thighs, that she exposed her breasts, sat on his lap, had an intimate conversation, and indicated she was happy for things to “go further”.

In considering the standard of proof, HH delved into Lee J’s reasons in Lehrmann v Network Ten, and reproduced 27 paragraphs of the Federal Court judge’s thoughts.  

This included the source and origins of Blackstone’s idea that ten guilty people should go free rather than one innocent be found guilty. Lee cited the origins of this notion, Genesis 18:23-32; discussion by Talmudic scholars (see Maimonides, The Commandments – translation by Charles Chavel); and Voltaire, 16 years before Blackstone, who had a different ratio (better to acquit two guilty rather than find guilt for one innocent). 

Rolled into the analysis was the Rhesa Shipping case where the House of Lords considered an action against the underwriter involving conflicting explanations as to why the ship sank. 

HH Greg Egan drilled into greater detail about whether the ship was lost owing to a collision with a submarine or the failure of its plating.

Bingham J in the Court of Appeal originally found that an encounter with a submarine was unlikely, and that the underwriter’s argument that “wear and tear” was the likely explanation. 

The House of Lords found that there is no requirement to make a finding between competing doubtful arguments, and instead to simply say that the onus of proof has not been established.

Whatever is left over must be the truthGreg included in his reasons The Sign of Four by Sir Arthur Conan Doyle, where Sherlock Holmes says to Dr Watson: 

“How often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?” 

Lord Brandon, in the H of L, thought Holmes was wrong because courts are not required to choose between two improbable theories, and can dismiss the case with a finding that the burden of proof has not been discharged.

His Lordship reluctantly concluded that on this occasion “even Homer nodded” [quandoque bonus dormitat Homerus – for more see the poet Horace]. 

Justice Darren Jackson in the Federal Court’s gargantuan Quintis case was also instructive on this issue, and got at least five pages in Egan’s Kruger judgment, with extended slabs of quotations.  

Meanwhile, the encounter at Flaxton Gardens and the Sex Discrimination Act were still hovering in the background. Judge Egan was not persuaded by the evidence of either the applicant or the respondent: 

There were doubts about Jana blowing out candles on the stairway leading to the bedroom; whether she sat on Thompson’s lap; unconvincing recall of conversations; and failure to call one of her consultant psychiatrists. 

The first occasion that she told her mother that she had been raped by her step-father was a year after it allegedly occurred. This was shortly after Jana had her own wedding to James Lindsay at Flaxton Gardens. 

Previously, she had only told Mariana that she and Alan Thompson had sex, not that she had been raped. Thompson was involved in the organisation of Jana’s wedding to Lindsay, which HH found to be “implausible and bizarre” if she had been raped by him.

Thompson was also found to be an unsatisfactory in the box with confusion around whether Jana wanted to “go further”, inaccuracy in his affidavit, and his obfuscation when confronted by his wife Mariana, Jana’s mother. 

Thompson: “going further”

HH Greg Egan said that if the court is unable to accept one version or the other about whether the sexual episode was consensual or not, then the burden of proof will not be discharged, 

“Nor should a Court be persuaded that one version of events given by one unsatisfactory witness should be preferred over another version of events given by another unsatisfactory witness unless there is a compelling reason to do so, namely because one version was clearly the more probable version.” 

Mariana and Alan are no longer married.