Full Feds fed-up to the back teeth … Eldon’s submissions scotched … Appeal from harassing conveyancer tossed out … Sexual harassment that was not meant to be sexual … Solicitor in his underwear … Loitering in female employee’s bedroom … Hugs … Damages should have been greater … An elephant in love … Janek Drevikovsky reports
Owen Hughes, principal at northern NSW law shop Beesley & Hughes, was sent packing with the full bench saying the appeal had no merit and that it would have increased the solicitor’s damages bill if it could.
Justices Nye Perram, Berna Collier and John Reeves, also came down hard on Hughes’ barrister, Lord Eldon QC, for making “insulting” submissions.
This must be one of the rare occasions when a decision of Judge Sal Vasta of the Federal Circus Court has not been overturned on appeal. The outcome was so bleeding obvious that not even Sal could get it wrong.
Salvatore had condemned Hughes’ “relentless” advances towards complainant Catherine Hill, who began working as a paralegal at Beesley & Hughes’ Bangalow law shop in 2015.
On appeal, Eldon submitted that Hughes was a latter-day Mr Darcy, pursuing a “romantic” relationship with Ms Hill, his Lizzy Bennet.
Because Hughes’ intentions were “strictly honourable”, the argument went, there was no way a reasonable person could have been humiliated, offended or intimidated by his conduct, a key ingredient of the definition of harassment.
The honourable conduct included mandated hugging before Ms Hill was allowed to leave the room; an barrage of mawkish propositions including an email that said “EXPRESSING MY FEELINGS IS NOT HARASSMENT”; using Hill’s confidential information to belittle her; and confessing himself to be “a wild a passionate man”.
Justice Perram, delivering judgment on the full court’s behalf, said the argument “made no sense”. Mr Hughes’ subjective intentions could have no bearing on how a reasonable person would objectively react to his conduct.
HH tried to salvage what he could from Eldon’s’ submission:
“Doing the best alchemically to make sense from the nonsensical, I propose therefore to treat the submission as instead a submission that the harassment which occurred was not sexual harassment.”
Even so, this submission was roundly rejected, with Perram concluding the facts of the case “are about as far from a Jane Austen novel as it is possible to be”.
His Honour recited some of the facts, or “tawdry events” as he described them.
Apart from trying to “woo” her in questionable French he dubbed himself a “sleek kangaroo” and Ms Hill his “Welsh dragon”, saying that everything “depends on l’elephant d’amour de moi a toi“.
During a work trip to Sydney, Hughes loitered around Hill’s bedroom in various states of undress before forcing her to hug him.
There were also barely-veiled threats, with the appellant accusing Hill of substandard work and saying he would replace her with a “Ukrainian woman”.
Lord Eldon submitted that some of this behaviour, especially the hugs, was consensual – and that all of it was “romantic” rather than sexual.
Justice Perram had other ideas:
“Wherever may lie the frontiers of the juristic conceptions [of sexual harassment], they comfortably enclose the shabby state of affairs in which a man gains access to his female employee’s bedroom dressed only in his underwear.”
Hughes argued that Salvatore’s $120,000 award of general damages was excessive. This too fell flat.
Hill’s quality of life had been “ruined”, Perram said, and that its ruin was easily “worth” $120,000 in compensation.
Nor was Hughes successful with his assault on the award of $50,000 aggravated damages.
The judge looked to the appellant’s conduct during the trial, and found that it disclosed serious aggravating factors.
For example, in his evidence, Hughes questioned Hill’s fitness to be a mother, suggested she had been sexually abused as a child and divulged her confidential information.
He also blamed her for his own conduct, saying she had behaved “coquettishly” by wearing particular dresses and perfumes.
Justice Perram concluded that all of this was done to “blacken” Ms Hill’s name. He shrugged off Eldon’s submission to the contrary:
“I reject the submission of senior counsel – apparently seriously advanced – that the appellant was engaging in a legitimate litigious process of attacking the witness’ credit.”
No error in the damages’ bill had been shown – but if it had, Perram concluded he would have increased the amount.
Perram pulled no punches:
“In my opinion, the trial judge was correct to condemn the appellant’s conduct of the trial as, in effect, a continuation of his harassment of the respondent …
This appeal is devoid of merit and I would infer was pursued for the same purpose. Some of the submissions were, in my opinion, insulting. It should not have been brought and, in my opinion, should be emphatically dismissed.”
Kylie Nomchong SC and Sarah McCarthy appeared for Catherine Hill, instructed by Lismore, Ballina and Byron Bay law shop Somerville Laundry Lomax Solicitors.