07 Oct 2010

"He said - she said": DJs case signals the possibility of jury trials on sexual harassment claims

by Joe Catanzariti, Millen Lo

A jury trial in the DJs case could mean that employers will face a more litigious environment.

A lot has already been said about Ms Fraser-Kirk's claim for $37m for punitive damages in her sexual harassment case against David Jones and former CEO Mark McInnes.

However, that is not the only interesting aspect of the claim. At the first court appearance legal representatives appearing for Ms Fraser-Kirk, were reported as foreshadowing a request for a jury trial as the matter "raised significant questions of community standards and morality".

Jury trials are very rare in Australia, and usually reserved for serious criminal matters. Therefore, such a request is somewhat novel and raises the question of whether you ask for a jury trial and what purpose it would serve.

Use of jury trials in Australia

While the media portrayal of American jury trials would suggest that juries can in fact determine civil trials and compensation, the Australian legal system does not quite operate in that way.

In Australia, jury trials are reserved for the most serious criminal matters, such as murder, manslaughter or sexual assault, however, they are also common in the area of defamation.

Defamation is seen as a particular wrong worthy of a jury trial as it requires a question of society's standards.

Specifically, in the Federal Court (where Ms Fraser-Kirk's claim has been lodged) the right to request a jury only extends to an issue of fact. Therefore, juries cannot determine final non-factual orders or award damages.

Why have a jury trial?

At this stage, it is unclear on what exact basis Ms Fraser-Kirk's legal representatives seek to have a jury trial. It is possible that it may be on account of the fact that sexual harassment cases can often come down to a question of facts.

In this regard, it has been observed that question of facts can often be the primary issue in sexual harassment cases where the matter becomes largely one of "he said, she said".

The other aspect that should be borne in mind is Ms Fraser-Kirk's claim for punitive (or exemplary damages).

Punitive damages are largely aimed at both punishing the defendant for behaviour in flagrant disregard of their obligations or the plaintiff's rights, and deterring the defendant and others from engaging in similar conduct in the future. Putting aside the question of the amount of damages, it is possible that such matters could give rise to issues about society's standards.

Sign of what lies ahead

The case against David Jones and the former CEO is yet to be heard but is expected to be dealt with by the end of the year.

Should a jury trial eventuate it will be interesting to see how a jury will be utilised in the proceedings to determine matters of fact.

Certainly the manner in which the case has been brought against David Jones, its directors and the former CEO represents a different approach as to how sexual harassment cases could be brought in the future.

Importantly, it may mean that employers will face a more litigious environment –and with that, more aggressive ways in which claimants will seek to agitate claims and bring matters before the courts and tribunals.

Thanks to Vanja Bulut for her help in writing this article.

This article was written when Joe was a partner at Clayton Utz and does not necessarily reflect his views as Vice-President of the Fair Work Commission.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.