Sexual Harassment, Ruling, Federal Circuit Court, Michael Jarrett

Sexual Harassment, Ruling

'Deplorable': Full Federal Court condemns six-year wait on sexual harassment ruling

'Deplorable': Full Federal Court condemns six-year wait on sexual harassment ruling

21/05/2020 11:20:00 PM

'Deplorable': Full Federal Court condemns six-year wait on sexual harassment ruling

A Queensland victim of workplace sexual harassment reveals the 'agony' of waiting six years for a court decision on her case and says she has had no explanation on why it took the Federal Circuit Court so long to hand down a judgment.

Key points:A Federal Circuit Court judgment was delivered more than six years after the trialThe delay has been blamed on an administrative oversightThe judgement was then partly overturned on appealThe woman, who does not want to be named, had to wait from 2012 to 2018 for Federal Circuit Court judge Michael Jarrett's ruling, a delay the Full Court of the Federal Court labelled "deplorable" and "extraordinary".

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"I was told it was a clerical error, but I don't understand how such a significant error could happen without anyone noticing," she said.The woman's lawyer, Susan Moriarty, said an associate wrote in an email the ruling had been released in April 2015, but due to an "administrative oversight" had not been distributed to the parties.

The woman told the ABC the delay was "agonising" and that it impacted her mental health.She said she would like an apology, but did not believe she would ever receive one."This process put me in the darkest place I have ever been in," she said.

"I still have to work incredibly hard to get out of bed each day."The woman said she did not feel that she had won her case because the six-year wait for the initial decision made her question all that was "right and wrong", and lose faith in the justice system.

More than 10 years after being groped at work by a colleague, the woman said she still struggled to tell her story."This journey was never about money, it was about helping to create a society where women don't have to be scared to go to work," she said.

"I don't want what happened to me to become someone else's life."At trial, the court heard she was working at Boral Timber in August 2009 when a male colleague groped her buttocks.The woman gave evidence that the situation was amplified when, after a complaint to her supervisor, the man and other employees victimised and discriminated against her — including by calling her a "dobbing dog".

'I felt angry'The civil case was heard in the Federal Circuit Court in October 2012, but Judge Jarrett's decision was not delivered until November 2018.While Judge Jarrett found the woman had been sexually harassed, he dismissed the allegation that Boral was vicariously liable for the conduct of its staff.

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In February, the Full Court of the Federal Court overturned that decision in part, determining Boral was vicariously liable for the sexual harassment carried out by the man.The Full Court also ordered that the matter be sent back to the Federal Circuit Court in relation to a number of other outstanding issues, to be heard by a different judge.

"I originally felt a great deal of relief and happiness, I finally felt validated. I was finally being believed. At the same time, I felt angry," the woman said.In the appeal judgment, the judges noted the delay had brought the administration of justice into disrepute, with the material before the court failing "to reveal any explanation" for it.

'There's an explanation owed to her'Ms Moriarty said the situation was intolerable in the 21st Century, saying "justice delayed is justice denied"."We had a person, a vulnerable young woman, waiting six years and one month for a decision that's had to be remedied on appeal before the Full Court," she said.

"There's an explanation owed to her. She is owed some accountability by the justice system."We'd already conformed to the protocol … it was like it went into a black hole, nothing ever came out."Employment lawyer Susan Moriarty has launched a Freedom of Information request to try to find out why her client waited more than six years for a ruling.

(ABC News: Kate McKenna)She said it sounded "as though the court's own procedures are not functioning as they should and there needs to be an explanation as to the parties, and so far there's been the sound of one hand clapping … a complete deafening silence".

Ms Moriarty said she had launched a Freedom of Information (FOI) request to access documents related to the "oversight," but her attempt had thus far been unsuccessful."What I got back was a reply that said, 'Oh no, all those documents are judicial so you can't have any'.

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"So I've had to kick the application up to review, to see whether or not the Information Commissioner is going to have a different decision."It is understood that review is still underway.A spokeswoman for the Federal Circuit Court said after the appeal process the case was given "significant priority".

"Within seven days of the matter being remitted back to the Federal Circuit Court from the Federal Court (following a successful appeal), it came before Chief Judge Alstergren who ordered the matter be referred to the Principal Registrar for mediation," the spokeswoman said.

"Within a further 10 days of those orders, the mediation process had commenced and on April 30 a confidential mediation was conducted electronically over Microsoft Teams (due to COVID-19 restrictions)."The matter has now been resolved."

Judicial commission callLaw Council of Australia president Pauline Wright told the ABC this week that the peak body wholly supported an independent federal judicial commission to promote transparency and accountability for judges."It is essential to the protection of the rule of law that there be a strong and independent judiciary, separate to, rather than subject to, review by the executive arm of government," she said.

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