Case: Hall v A &amp; A Sheiban Pty Ltd [1989] FCA 72 ; (1989) 20 FCR 217
Outcome: followed
Ms Huang does not contend that the Federal Magistrate was in error in his summary of the principles applicable to conduct in breach of s 28A(1)(b). His Honour recognised the breadth of actions that can constitute conduct of a sexual nature and that single incident could constitute a contravention of s 28A. He also considered the distinction, pointed out by Wilcox J in Hall v A &amp; A Sheiban Pty Ltd [1989] FCA 72 ; (1989) 20 FCR 217 at 247, that '[u] nwelcome sexual conduct may be insensitive, even offensive, but it does not necessarily constitute sexual harassment ', the latter suggesting repetition. 37 The allegation of sexual harassment made to HREOC against Professor Winder is that he touched Ms Huang's hip while passing her in a corridor in the second semester of 1999. The allegation against Professor Winder is described by Ms Huang in her documentation in the appeal as ' an upward affectionate stroking motion on hip ' constituting, she says, a sexual advance for sexual favours which in turn constitutes sexual harassment. Ms Huang confirms that the allegation of sexual harassment against Professor Winder consisted of a single incident late in 1999. In her Notice of Appeal, Ms Huang repeatedly describes the incident with Professor Winder and she also demonstrated his alleged action a number of times during her submissions. The description was in terms of touching of the hip with ' an upwards affectionate stroking motion on my hip, for his sexual advance for his sexual favours to me '. 38 Noting (at [82]) that Professor Winder had no recollection of the incident, Driver FM expressed concern about Ms Huang's evidence. Ms Huang waited more than two years before mentioning the incident and his Honour did not accept her explanation for the delay. His Honour also commented that Ms Huang had changed her account of the incident over time. As his Honour recorded at [87]: ... Ms Huang has changed and embellished her account of the incident over time. Her initial allegation in 2002 was that 'one day when I passed the passage from the printing room of the school he touched my hip'. In her 29 October 2004 affidavit she deposed that 'he stretched out his right arm towards me and touched me on the hip'. In her oral evidence Ms Huang said that Professor Winder had caressed her. Her submissions allege 'affectionate stroking' and give further details but such detailed recollection is inconsistent with Ms Huang's oral evidence that she did not see Professor's Winder's hand . 39 Federal Magistrate Driver accepted at [82] that an incident occurred and that there was some physical contact between Professor Winder and Ms Huang as they passed each other in the corridor but found nothing to establish that the incident complained of constituted sexual harassment within the meaning of s 28A of the Sex Discrimination Act . His Honour concluded that ' in all probability, the contact that occurred between Professor Winder and Ms Huang was accidental and non-sexual as they passed in the corridor ': at [89]. His Honour noted that the alleged incident did not apparently affect Ms Huang's dealings with Professor Winder after that time; equally significantly, Ms Huang did not allege that there was ever any other physical contact between her and Professor Winder. 40 Ms Huang alleges a number of consequences arising from the alleged sexual harassment by Professor Winder. Those consequences and the existence of them are dependent upon a finding that the single incident alleged against Professor Winder took place and constituted a breach of the Sex Discrimination Act . 41 Ms Huang alleges that Professor Winder ' made unwelcome sexual advance for sexual favours to me, engaged in unwelcome conduct of sexual nature in relation to me, and discriminated against me of a sexual nature in relation to my sex, his sexual favours to me, and his sexual harassment, that he treated me less favourably than other girls and the male students and that his support of my PhD, my progress of my PhD and the continuance of my PhD re-enrolment were conditional upon my provision of sexual favours '. 42 In the Notice of Appeal Ms Huang asserts that, had it not been for the sexual harassment she would have done certain things, such as change her supervisor from Dr Markovic to Professor Winder or not done certain things, such as sent him emails or given him a bottle of wine. She says that if she had intended to invent Professor Winder's actions, she would have suggested other contact. Ms Huang does not suggest that Professor Winder touched her at any other time. She says that she told Ms Frank that the touching of her hip was sexual harassment because ' he showed his sexual intention in me '.