Case: Gauci v Kennedy [2007] FCA 1051
Outcome: referred to
Federal Magistrate Driver considered the evidence in relation to this allegation and rejected it. His Honour gave reasons for that finding. I see no error in his Honour's conclusion. A claim under s 28A must be analysed on the basis of the nature or quality of the act: see, for example, Gauci v Kennedy [2007] FCA 1051 at [22] . Irrespective of Ms Huang's present belief that the contact between Professor Winder's hand and her hip constituted sexual harassment, she has not shown that his Honour was in error in concluding (at [89]) that ' the contact that occurred between Professor Winder and Ms Huang was accidental and non-sexual as they passed in the corridor '. 51 Federal Magistrate Driver accepted the respondents' submission that there were two allegations of sexual harassment against Dr Markovic. 52 The first allegation, described by His Honour at [92], is that in 1999 when he was training a group of students he raised both his hands ' with lustfully laughing and moved towards Ms Huang with his arms outstretched '. Dr Markovic denied laughing lustfully and denied that he sexually harassed Ms Huang. None of the other students present gave evidence. Federal Magistrate Driver found that Ms Huang embellished this alleged incident over time. During cross-examination she added as part of the description that Dr Markovic said as he raised his hands ' I'll kill you ' or ' I would kill you '. Ms Huang conceded that Dr Markovic did not engage in any conduct that indicated a sexual interest in her. 53 His Honour concluded that whatever was said was intended as a joke and was not sexual in nature and was not conduct within s 28A(1)(a) or (b) of the Sex Discrimination Act . 54 The second allegation was that, at some time in late August or September 2001, Dr Markovic made a remark about Ms Huang's marital status. Dr Markovic denied making that remark. Another student present gave evidence and failed to corroborate the allegation. The Federal Magistrate accepted Dr Markovic's denial that he said anything about a need for sex on Ms Huang's part. On that aspect, Driver FM preferred Dr Markovic's evidence and the documentary evidence to Ms Huang's evidence. His Honour noted that one of the other students present at the time but who was not able to be available for cross-examination as he was overseas provided some support for Ms Huang's allegation that Dr Markovic made a comment about her marital status. His Honour found that, on the balance of probabilities, that Dr Markovic did make a comment about Ms Huang's age and marital status. An internal University investigation supported the allegation and Dr Markovic had been required to undergo counselling. Federal Magistrate Driver concluded that the remark was ' offensive and the remedy appropriate ' (at [101]). 55 However, his Honour accepted that the comment did not constitute sexual harassment within the meaning of s 28A of the Sex Discrimination Act , not being conduct of a sexual nature or pertaining to sexual activity or attraction or relationships. Accordingly, his Honour rejected the allegations of sexual harassment against Dr Markovic. Having rejected the allegations of sexual harassment against Dr Markovic and Professor Winder, Driver FM found at [104] that there was nothing to support any other alleged act of sex discrimination under the Sex Discrimination Act . 56 In her complaint to HREOC Ms Huang said that when Dr Markovic was talking about broken glass ' he raised his both hands and came to me like to catch me, but I stepped back and avoided the contact '. She also said that Dr Markovic sometimes talked about sex in front of male students and that he said on one occasion that she had not been married but needed sex and that she was over 30 near 40, but still had pimples on her face. 57 Ms Huang characterises the second incident as being a ' sexual comment about my marital status, my age and my sexual life that I was not married that I needed sex and I was over 30 but I still had pimples on my face, in which he suggested and induced the male students made sex relationship with me. ' This, she submits, constitutes sexual harassment. 58 Ms Huang raises a number of matters concerning her PhD in her amended notice of appeal under the heading of "sexual harassment". These were not the subject of complaint to HREOC under this heading and it is not clear how they constitute sexual harassment within the meaning of the Sex Discrimination Act . They relate to matters such as the provision of assistance and training, her research and the provision of computers. 59 Ms Huang also says in her amended notice of appeal that Dr Markovic indicated ' that [Dr Markovic] would compel obedience from me or conquer me for his sexual favours to me, his support of my PhD would be conditional upon my provision of sexual favours, he made sexual comments and induced his male students sexually harassed me '. She explains that when he said ' I'll kill you ' it meant that ' he would compel obedience from me or conquer me for his sexual favours to me '. 60 Ms Huang is adamant that Dr Markovic said ' I'll kill you '. Federal Magistrate Driver implicitly accepted at [95] that such a comment may have been made. His Honour noted, and Ms Huang repeats, that Dr Markovic did not engage in sexual harassment but indicated a sexual interest in her. She says in her amended notice of appeal that Dr Markovic ' did not touch me and did not (directly through his mouth) invite me for a social occasion '. 61 His Honour concluded that, in the circumstances, the conduct complained of was more likely to have been intended as a joke rather than being sexual in nature. While his Honour accepted that Dr Markovic laughed, and Ms Huang repeats that it was a ' lustful ' laugh, his Honour did not accept what was clearly a subjective interpretation of the laugh. 62 It is difficult to see how one can accurately describe a laugh as ' lustful ' or how that description by Ms Huang is sufficient to establish sexual harassment within the meaning of the Sex Discrimination Act . 63 Much of the detail raised by Ms Huang in support of her claim of sexual harassment by Dr Markovic involves her reading a sexual connotation into things that he said or wrote. For example, she says that his saying ' I'll kill you ' was a result of ' his playing sexual game with me ' and that ' Dr Markovic was so drunk of his sexual favours to me that he really wanted to 'kill' me, but he could not 'kill' me in front of people, and he would 'kill' me in some time after the talking. He would 'kill' me meant he would compel obedience from me or conquer me for his sexual favours to me, as he had known I was afraid and ran away from his sexual favours to me '. She also characterises any assistance given to her by Dr Markovic in her PhD programme as part of his ' sexual advance for sexual favours to me '. 64 Ms Huang says that any failure on Dr Markovic's part to support her, or any criticism of her work, was due to his sexual interest in her. As part of her case that Dr Markovic had made sexual advances to her, Ms Huang describes a series of reasons why he must have done so. She cites examples when he said to her things such as ' you are too hard on yourself ' and when he provided assistance to her. Suggestions by Dr Markovic that she should ' take it easy ' in her PhD, that she should learn from her mistakes, that she was expected to work under her own guidance and that it was up to her to determine and manage her time were all linked by Ms Huang to the question of provision by her of sexual favours to Dr Markovic.