Australian Feminist Judgments Project

Re-imagining and re-inventing Australian court decisions

Mapping jurisprudence

This part of the project involves mapping Australian jurisprudence to identify existing legal decisions which have been influenced by, or alternatively, offended feminist principles.

Case studies

Four key areas of Australian law which have been subject to feminist analysis have been selected as case studies for this research.

Battered woman syndrome

The concept of ‘battered woman syndrome’ (BWS) was first raised in Australian case law in the early 1990s. Throughout the 1990s BWS was discussed in many subsequent cases and academic articles. This aspect of the project maps cases, academic analysis and law reform to consider the role of feminist academic critique on the development and disappearance of ‘battered woman syndrome’ in judicial decision-making. We provide a summary of relevant cases and consider feminist academic commentary of the cases where available, noting whether this commentary is neutral, positive or negative. Since about 2000 there has been significant law reform and we also identify relevant law reform activity. Where the information is available we have also identified women judicial officers in red text. This text is up to date to September 2014.

Battered Woman Syndrome (printable version).

1979 - 1989

In the 1970s and 1980s family violence began to be considered as a social phenomenon and many feminist activists in Australia and overseas engaged in efforts to ensure its legal recognition.  By the end of the 1980s most Australian states had introduced civil domestic violence protection order legislation and family violence was on the agenda. During this period Australian courts did not consider evidence of Battered Woman Syndrome; however they began to hear expert evidence, usually from psychiatrists and psychologists, about how women were affected by years of domestic abuse and how this information may be relevant in understanding the operation of defences and excuses, especially in homicide cases.

  • R v Whiting (unreported 27 September 1979)
    NSW Court of Criminal Appeal
    Homicide, sentence mitigation

    Summary:

    Maxwell J considered the case of R v Whiting in his judgment in R v Bogunovich (1985) 16 A Crim R 456, 46-461, he quoted directly from R v Whiting:

    “ ‘The circumstances inevitably attract a very considerable degree of sympathy towards the appellant but she has taken a human life and this is one of the most dreadful crimes known to the law. Whilst one can understand the circumstances and the trauma which led up to her committing this crime, it would nevertheless be a failure on the part of the criminal law to take too lenient a view of the matter. The learned sentencing judge quite understandably found himself bound to mark the seriousness of the crime of taking a human life. His Honour was properly concerned to ensure that there could be no impression gained from what had taken place that matrimonial discord, even extreme matrimonial discord such as one sees in this case can ever be an excuse for the victimised party to take the life of the aggressor. It has always been the policy of the criminal law to emphasise that a victimised person cannot be permitted, even in such circumstances as the present, to take the law into his or her own hands by killing the aggressor ... It is necessary to ensure that there be an adequate element of deterrence for the community at large against crimes such as the present.’”

  • R v R (1981) 28 SASR 321
    South Australian Supreme Court: King CJ, Jacobs, Zelling JJ.
    Homicide, provocation.

    Summary:

    From Tarrant, S 1990 at 592:
    ‘In R, a woman had been the victim of serious domestic violence throughout a twenty-five year marriage. Several days before she killed her husband she discovered that he had been committing incest for many years with their daughters. On the night of the killing he had not been physically violent towards his wife but when in bed had put his arm across her telling her he loved her and that they would from now on be 'one big happy family'. It was this conduct and these words which constituted the provocative incident. R killed her husband about half an hour later.’ (Tarrant 1990, p.592)

    Feminist Commentary:

    Neutral

    “There is a further effect of the model of provocation remaining that of immediate response ... The evidence of previous violence functions in law as background information, necessary to interpret  a loss of control which may otherwise be unequivocally unreasonable (in the R case: he told her he loved her so she killed him with an axe). To raise provocation, R was obliged to present herself as having 'snapped' because her husband spoke those words. Past history of victimisation had no direct independent meaning.(Tarrant 1990, p.594)

    “This decision has ameliorated considerably the difficulties faced by women offenders who respond to a history of domestic violence and undoubtedly accounts for the increased use of provocation by women noted earlier. However, the primary model for the defence has not changed. A provocative incident must induce an immediate response. This means that where there is no perceivable provocative incident the defence will be precluded. Or where a woman has, in fact, been provoked by a history of violence, her defence counsel may select an incident strategically in order to rely on the defence.” (Tarrant 1990, p.592)

    Positive

    “The scope of provocation was extended however in the case of R in 1981. As a result of that case a jury is now permitted to consider the immediate provocative incident in the light of previous conduct by the victim, including domestic violence. That is, the provocative incident may be the 'straw that breaks the camel's back'.” (Tarrant 1990, p.592)

    “Fortunately, there exists a trend amongst Australian courts to acknowledge this common response pattern of women who kill, especially in the context of domestic violence settings. Thus, in R v R the South Australian Court of Criminal Appeal held that the defence of provocation was open to the female defendant even though the victim had been asleep for over twenty minutes before he was  killed.” (Yeo 1996, p.313)

  • R v Hill (1981) 3 A Crim R 397
    NSW Court of Criminal Appeal: Street CJ, Nagle, Lee JJ.
    Manslaughter, provocation.

    Summary:

    The appellant was convicted of the murder of her de facto husband by shooting. She appealed her conviction. Evidence at the trial showed the shooting to have been a crisis – a sudden and final stage in which the provocative and intolerable conduct of the deceased towards the appellant over lengthy period of time had brought her to breaking point. On the day of the shooting the deceased had threatened to ‘bash’ the appellant before leaving to go drinking at the pub.  The appellant found and loaded the gun whilst he was out.  She then shot him (4 shots fired) when he returned after he started to abuse her again.

    The case was defended at the trial primarily upon the ground of self-defence and provocation was not relied upon although it was put before the jury by the trial judge. On appeal, it was argued that the conviction of murder should be found to be unsafe and unsatisfactory in light of the history of violence by the deceased towards the appellant.

    The Court of Appeal held:

    1. In light of the undisputed history of the relationship between the appellant and the deceased and the undisputed evidence of the events on the day in question, the conclusion of the jury necessarily attracts critical appraisal by this Court in the exercise of its supervisory jurisdiction to intervene in circumstances in which it considers that a miscarriage of justice has occurred.
    2. The unsafe and unsatisfactory overtones of the verdict are manifest in the strong case of provocation which can be perceived from the objective statement of the undisputed facts.
    3. The verdict was unsafe and unsatisfactory and the jurisdiction of the court in a supervisory sense to ensure that miscarriages of justice resulting from verdicts that can fairly be regarded as unsafe and unsatisfactory should be exercised in this case. The verdict of guilty of murder quashed and a verdict of guilty of manslaughter substituted.
    4. It is clear that provocation, using that word either in its ordinary sense or in the technical and legal sense, on any view was a substantial element in the crime committed and the jury’s attention was so closely directed to the matter of self-defence that the aspect of provocation may have not received the attention it deserved – the cogent evidence of provocation may have not been given its proper place by the jury in arriving at its verdict. If that may have happened, then that is a real ground for uneasiness and it would be unsafe and dangerous to allow this conviction to stand.

    Conviction for murder substituted by conviction for manslaughter and sentenced to 4.5 years and 1 year non-parole period.

    Street CJ commentary

    “This was a case in which, from the human point of view, the appellant can receive a significant measure of understanding in having ultimately lost her self-control after a prolonged period of intense emotional strain. It is difficult to accept that she should be regarded as a murderess to be called upon in consequence to suffer the mandatory sentence of life imprisonment.” (p.401)

    Lee J commentary

    “[t]he verdict of murder leaves me with an uneasy feeling that the cogent evidence of provocation, which appeared from the facts, may not have been given its proper place by the jury in arriving at that verdict.” (p.402)

    Feminist Commentary:

    Neutral

    “As Wilson J explained, women who kill their abusers frequently do not do so in circumstances which fit into the "paradigmatic" case. Many women take action to protect themselves in advance by a surprise attack, arm themselves before being attacked [footnote referring to R v Hill here], or kill during a lull in violence in the course of a battering incident. A woman may kill her abuser as he turns to leave a room, while he sleeps, or by poisoning him. The traditional interpretation of what is "imminent" is suited to one-off encounters between people of roughly equivalent size and strength. Some adjustment is needed if this requirement is to be an appropriate standard to assess the conduct of battered women.” (Robertson 1997-2000, p.279)

  • R v Bradshaw (unreported, 16 April 1985)
    Western Australian Supreme Court
    Murder, provocation

    Summary:

    “In that case the assault and the argument relied on as the provocative incident had ended before the woman killed her de-facto husband. Evidence of previous violence against her was admitted including repeated beatings which resulted in permanent scarring and threats of death which she had reported to the police. Part of the prosecution case was that the woman was ‘merely angry’, but not out of control and that she had seized upon an opportunity to vent the anger she felt as a result of treatment she had suffered at the hands of her spouse in the past. That is, she had not been provoked by the relevant assault, but was acting in ‘revenge’. The woman was convicted of murder.” (Tarrant 1990.p.593).

  • R v Bogunovich (1985) 16 A Crim R 456; Supreme Court of New South Wales
    NSW Supreme Court: Maxwell J
    Manslaughter, sentence mitigation.

    Summary:

    The accused pleaded guilty to the manslaughter of her husband after she was charged with his murder. The Crown accepted this plea on the basis that there was sufficient evidence of provocation on the part of the deceased towards the prisoner to justify a reduction from a charge of murder to a charge of manslaughter.  The accused and her sons had been subject to extreme domestic violence by her husband over a period of 13 years. She had tried to leave him but was not able to. She thought she would be killed by him at any time. On the night of his death she went to pick him up from a club where he had been drinking.  In the car park the deceased physically assaulted her, she went back to the car and grabbed a knife and stabbed him. The accused then drove herself to the police station to tell them what had happened. A psychiatrist was called as an expert to give evidence of their relationship for the Court. Maxwell J found “I am unable to find any valid reason for the imposition of a custodial sentence. I am quite satisfied that the deceased’s persistent ill-treatment and abuse of the prisoner, and her knowledge of his assaults upon his sons, were such as to render this a special case in which a non-custodial penalty should be imposed” (p.462)

    The Supreme Court held: Non-custodial sentence. $5,000 and good behaviour for 4 years.

    Maxwell J commentary

    “However, that Mrs Bogunovich could perceive the conflict with her husband at that time as an actual major threat on her life is highly probable. It is very reasonable to state that she was motivated to persist in continuing somehow to try and hold on to life, something that she had done in spite of a severe level of chronic psychological stress. What she was very probably doing when, according to reports she stabbed her husband, was preserving her own life. It is not all that relevant as to what her husband might have intended to do to her at the time. Her mind was influenced by her severely depressed state.” (p.460)

  • R v Roberts (unreported, 31 August 1989)
    NSW Supreme Court: Hunt J
    Manslaughter, provocation.

    Summary:

    The accused had been indicted on murder but pleaded guilty to manslaughter. The Crown accepted this plea because there had been provocation so as to reduce the crime to manslaughter.

    The accused had been in a relationship with the deceased since she was 15 and they had later married. They had three children together. The accused had been subject to severe domestic violence during this time, and the deceased had even been charged with her assault from a previous occasion. On the day the deceased died he was at his cousin’s house. He had left the accused as he had been having an affair with another woman. But their relationship still continued. The deceased confronted him and she was severely assaulted. She drove home and got his gun and returned and shot him once in the chest.

    Hunt J accepted the evidence of their relationship but said “It has been made very clear by the courts that the taking of a human life, even within the context of domestic violence, will not be viewed with leniency. Not even extreme domestic discord can ever be an excuse for the victim to take the law into her own hands and to extinguish the life of the aggressor.” (at para 9)

    However, Hunt J went on to note the circumstances surrounding the case and the fact that deterrence wasn’t a big consideration in this case.

    The Supreme Court held: Non-custodial sentence. $1,000 and 2 years good behaviour.

    Hunt J commentary

    A psychiatric report from Dr Milton and “an extraordinarily detailed, well researched and very helpful report from Ms Debra Kilby, a social worker with the Legal Aid Commission” were submitted to the Court (p.1).

1990 - 1999

Throughout the 1990s all Australian state supreme courts admitted evidence of Battered Woman Syndrome. Judges regularly admitted psychologists’ and psychiatrists’ evidence of Battered Woman Syndrome. In many cases the learned helplessness of battered women, or similar inadequacies and inabilities, were emphasised. This evidence purported to assist juries and judges to understand the effects of battering and, in particular, why battered women did not leave their abuser. Expert witnesses added their own gloss to Battered Woman Syndrome over time making it difficult to pin down a clear and consistent approach to Battered Woman Syndrome in Australian case law. In 1998 the High Court identified a number of inadequacies with Battered Woman Syndrome evidence.

  • R v Runjanjic and R v Kontinnen (1991) 56 SASR 114
    South Australian Court of Appeal: King CJ, Legoe and Bollen JJ
    False imprisonment, grievous bodily harm, duress.

    The first Australian case to accept expert evidence of BWS.

    Summary:

    This case was an appeal against conviction. The appellants, both women, were found guilty on charges of false imprisonment and causing grievous bodily harm with intent.  The (female) victim was lured to the home of one of the appellants which the latter shared with a male associate (Hill). Over a period of days the victim was detained against her will and subjected to physical abuse. Both appellants were involved in luring the victim to the home abovementioned and there was evidence that both were party to the detaining and abuse of the victim. The evidence before the jury indicated a history of dominance and habitual violence by Hill towards both appellants. The appellants sought to call expert evidence on the "battered woman syndrome". The trial judge ruled the evidence inadmissible by reason of the objective component of the test of duress. The appellants appealed against conviction on two grounds: (i) that the jury's verdict was unsafe; and (ii) that the trial judge's ruling on the admissibility of evidence relating to the ''battered woman syndrome" was wrong.

    The Supreme Court held on appeal:

    1. The appeal be allowed, the convictions set aside and a new trial ordered.
    2. The ground assigned for the exclusion of the evidence relating to the "battered woman syndrome" was erroneous. The syndrome was properly the subject of expert testimony, subject to satisfactory proof that it is regarded by experts competent in the field as an accepted field of scientific knowledge.
    3. Evidence relating to the “battered woman syndrome" was relevant to the issue of duress.

    Analysis of the principles regarding the admissibility of expert evidence of Transport Publishing Co Pty Ltd v Literature Board of Review (1956) 99 CLR 111 applied.

    King CJ commentary

    “There is now a considerable body of literature on this topic and a perusal of that literature enables one to flesh out from Mr Borick's [Counsel for Appellants] bare summary the sort of evidence which Mr Fugler [Psychologist giving evidence of BWS at trial] might have been expected to give if he had been permitted to do so. I propose to refer to the features of the "battered woman syndrome" as it is described in the literature. As I have said, the body of literature on the topic, particularly in the United States of America, is considerable. I have selected for citation from the mass of available material articles which I have found to be most useful because they relate features of the syndrome to legal issues which arise in criminal trials.” (at p.118)

    “I gather from the literature that the idea of the battered woman syndrome was pioneered by Dr Lenore Walker in a publication entitled The Battered Woman (1979). She is the author of The Battered Woman Syndrome (1984). It now appears to be a recognised facet of clinical psychology in the United States and Canada. It emerges from the literature that methodical studies by trained psychologists of situations of domestic violence have revealed typical patterns of behaviour on the part of the male battered and the female victim, and typical responses on the part of the female victim. It has been revealed, so it appears, that women who have suffered habitual domestic violence are typically affected psychologically to the extent that their reactions and responses differ from those which might be expected by persons who lack the advantage of an acquaintance with the result of those studies.” (at p.118)

    “A perusal of the literature to which I have referred, however, indicates a wide acceptance of the syndrome as having a valid existence. The attitudes of various courts in the United States are discussed in a number of the articles cited at 122. Two citations will suffice. In People (New York) v Torres 488 NYS 2d 358 (1985), the trial judge, Bernstein J, admitted expert evidence of the battered woman syndrome… Court of Appeals of New Mexico in State (New Mexico) v Gallegos 719 P 2d 1268 1986)…The same view has been taken in Canada: see Lavallee v The Queen (1990) 55 CCC (3d) 97, a case to which I shall return later. I am not aware of any case on the subject in Australia or in any other common law country.” (at p.119)

    “The proffered evidence is …designed to assist the court in assessing whether women of reasonable firmness would succumb to the pressure to participate in the offences. It also serves to explain why even a woman of reasonable firmness would not escape the situation rather than participate in criminal activity. As such it is relevant.” (at p.120)

    “I have considered anxiously whether the situation of the habitually battered woman is so special and so outside ordinary experience that the knowledge of experts should be made available to courts and juries called upon to judge behaviour in such situations. In the end, I have been impressed by what I have read of the insights which have been gained by special study of the subject, insights which I am sure would not be shared or shared fully by ordinary jurors. It seems to me that a just judgment of the actions of women in those situations requires that the court or jury have the benefit of the insights which have been gained. I am fortified in the conclusion to which I have come not only by the trend of authority in the United States of America but by the decision of the Supreme Court of Canada in Lavallee (supra).” (p.121)

    Unusually  King CJ cited academic literature in the case:

    • "'The Psychologist as Expert Witness: Science in the Courtroom" (1979) 38 Maryland Law Review 539.
    • Baumann, M A "Expert Testimony on the Battered Wife Syndrome" (1983) 27 St Louis University Law Joumal 407.
    • Brodsky, D J "Educating Juries: The Battered Woman Defence in Canada" (1987) 25 No 3 Alberta Law Review 461.
    • Cipparone, R C "'The Defence of Battered Women Who Kill" (1987) 135 University of Pennsylvania Law Review 427.
    • Creach, D L "Partially Determined Imperfect Self Defence: The Battered Wife Kills and Tells Why" (1982) 34 Stanford Law Review 615 esp at 618.
    • Dahl, P R "Legal and Psychiatric Concepts and the Use of Psychiatric Evidence in Criminal Trials" (1985) 73 California Law Review 411 esp at 420 et seq.
    • Diamond, S "Criminal Law: The Justification of Self Defence" (1987) Annual Survey of American Law 673 esp at 690 et seq.
    • Kaas, C W '''The Admissibility of Expert Testimony on the Battered Woman Syndrome in support of a Claim of Self-Defence" (1982) 15 Connecticut Law Review 121 esp at 130 et seq.
    • Lipsman, J A "Criminal Law: Domestic Violence" (1985) Annual Survey of American Law 839 esp at 847 et seq.
    • McKinnie, K '''The Use of Expert Testimony in the Defence of Battered Women" (1981) 52 University of Colorado Law Review 587.
    • Schneider, E M "Equal Rights to Trial for Women: Sex Bias in the Law of SelfDefence" (1980) 15 Harvard Civil Rights - Civil LibeT1ies Law Review 623 esp at 636 et seq.
    • Thar, A E '''The Admissibility of Expert Testimony on Battered Wife Syndrome: An Evidentiary Analysis" (1982) 77 No 3 Northwestern University Law Review 348.
    • Walker, L E ; R K Thyfault and A Browne, "Beyond the Juror's Ken: Battered Women" (1982) 7 No 1 Vermont Law Review 1.
    • Waltrip, T B "Evidence - The Battered Woman Syndrome in Illinois: Admissibility of Expert Testimony" (1986) 11 Southern Illinois University Law Joumal 137.

    Bollen J commentary

    “[A]s a general proposition I think we may now say that the ‘battered wife Syndrome’ has become ‘an organised branch of knowledge in which’ a person may qualify as an expert: see Clark v Ryan (1960) 103 CLR 486 at 501-502, per Menzies J; see too per Dixon CJ (at 491).” (p.124)

    “In the present case I think it probable that had the learned trial judge had the benefit of the writings which the researches of the Chief Justice revealed, he would not have ruled as he did. With all respect I think it now turns out that his ruling was premature. We cannot say at present whether the right things will be proved to enable the expert to testify at the retrial. But on proof of his expertise and capacity to offer opinions it may well, I think, turn out to be admissible. There is a caveat. A number of the American texts refer to the ‘danger’ seen in the possibility that the value of the expert testimony may be outweighed by countervailing considerations said to be prejudicial to the accused person. It appears that expert evidence has been rejected by some courts in the United States of America on that score. I think this well  answered, and answered well for South Australia, by an article by M A Baumann, "Expert Testimony on the Battered Wife Syndrome" (1983) 27 St Louis University Law Journal 407 …” (at pp.124-125).

    Feminist Commentary:

    Neutral

    The first Australian case to accept expert evidence of BWS. (Graycar and Morgan 2002, p.438; Barnett 1998, p.274)

    “Another factor which may have contributed to the manner in which Australian law and practice first developed was the need in Runjanjic and Kontinnen to justify the introduction of expert evidence on the basis that it went beyond the ‘behaviour of normal people and of situations which are within the experience of ordinary persons or are capable of being understood by them’. What this meant, of course, is that it was originally easier to justify the admission of psychological testimony if it was directed at explaining a ‘syndrome’ or abnormal mental state.” (Stubbs and Tolmie 1999, p.723)

    This case used in an example where Seuffert is discussing: “The assumption that it is contradictory for women to love men who abuse them physically, psychologically and sexually is sometimes used in cross-examination of women who have been in abusive relationships to suggest that they are lying about the abuse, or to impinge on their credibility as witnesses.” (Seuffert  1999, p.211-212)

    Positive

    “Until mid-1991 there is no record of the mention of BWS in Australian courts. Then, in Runjanjic and Kontinnen v The Queen an appeal judge ruled that the defendants should be retried on the charges of false imprisonment and causing grievous bodily harm since the trial judge had not permitted the admission of expert evidence on BWS. The defence was trying to show that long-term battering had affected the ability of the defendants, Runjanjic and Kontinnen, to act freely; that they had been under duress. The Crown Prosecutor’s address to the jury in that trial illustrates how the Crown can imply, assert and rebut the concept of duress by using an objective standard which excludes BWS in the absence of expert testimony to the contrary.” (Easteal 1992, p.222)

    “The authors are not aware of any reported judgment in which self-defence has been successfully argued prior to the recent South Australian and New South Wales [referring also to R v Hickey] decisions introducing and relying on battered woman syndrome.” (Sheehy et al 1992, p.371)

    “The appeal court dealt with whether expert evidence concerning BWS should be admitted, and ruled that BWS may be relevant in order to assist the court to understand [it.]” (Stubbs and Tolmie 1999, p.722)

    Negative

    “However, it is probably fair to say that in the majority of Australian cases in which BWS has been introduced it appears to have been narrowly construed and directed primarily towards explaining the psychology of the particular accused or of battered women in general.” Authors are also referring to the cases of Bradley, Tassone, Hickey, Runjanjic and Kontinnen, Raby. (Stubbs and Tolmie 1999, p.727)

    “As a consequence both cases [referring to Kontinnen as well] mention the actual circumstances of the violence survived by the women concerned but neither do more than partially locate that violence within the broader set of circumstances in which it took place. Furthermore, those surrounding circumstances that do receive mention are stripped of ‘objective reality’ by the focus places on the offender’s psychology. The suggestion is that these circumstances form a part of the ‘subjective’ impressions of a mind temporarily affected by an abnormal experience of violence.” (Stubbs and Tolmie 1994, pp.203-204).

  • R v Kontinnen (Unreported 27 March 1992)
    South Australian Supreme Court: Legoe J
    Murder, self-defence, provocation.

    Summary:

    Further to the above case, this is the case where Kontinnen killed Hill. Kontinnen was charged with murder and pleaded self-defence. Legoe J directed the jury that they should consider provocation if they reject self-defence.

    On the night of Hill’s death, the accused said that because she recalls the smell of the gunshot powder and recalls seeing Hill in bed, lying face down on the bed naked and that she recalls certain other facts, she has come to the conclusion that she must have fired the shot. In the house at the time were Runjanjic and a child (Archie). Kontinnen gave evidence that the accused said to her in effect that he was going to sleep and that when he woke up all three of them, Erika, Olga and Archie would be dead.

    Legoe J went into the expert evidence given on BWS and stated “Both of the experts agree that the syndrome that we are talking about in this case is an attitude of mind. Therefore, it is not a matter of the psychiatrist or the psychologist diagnosing any psychological or psychiatric illness. It is it matter of assessing - I think, is the proper way to look at it in this case - the material which the psychologist or the psychiatrist relies upon which may include the experience of that expert.”  (p.3 at para 9)

    “The battered wife syndrome, as such, is not the defence. If you are looking for a defence, do not just look at the battered wife syndrome. It is part of the history of what the defence put into the whole case, ultimately, of course, to point out to you and to argue, as they have done, that the Crown have failed to prove its case beyond reasonable doubt because, if I may put it very simply, the situation that Erika was in the early hours of that Monday morning, was a cumulated set of circumstances, a cumulated attitude of mind, which had been built up in the way in which she had been treated by Jan Hill and the way in which Olga had been treated, or the two women had been treated, in relation to when they were there and when they were not there and all of those other matters.” (p.13 at para 14)

    The Supreme Court held:  Not guilty of any charge.

    Legoe J Commentary:

    Legoe J directed that the jury must consider ‘reasonable person’ as a female subject, “So a reasonable person is somebody having the powers of control that would be expected of an ordinary person of that sex, the female sex, and of her age, but in other respects sharing such of her characteristics as you think would affect the gravity of the provocation which was directed towards her and indeed in this case towards the other female Olga and, of course, you will have to assess that yourselves because that is very much a jury question. But that is the legal framework in which provocation could be said to arise and is an aspect of this case which you will have to consider.” (p.10, at para 31)

    Legoe J also went through BWS in detail when summing up to the jury - “I have read you quite a bit of Mr Fugler's evidence-in-chief because I think that displays the aspects of the defence case which the defence say will lead you, ladies and gentlemen, to at least entertain a reasonable doubt, bearing in mind the defence do not have to prove anything, you will entertain a reasonable doubt that the accused, if you are satisfied beyond reasonable doubt that she shot the deceased with the intention of killing him, was in an attitude of mind, at least, where this long history of battering had so brought her down, if I may use a common expression, both mentally and physically, that she was in what Mr Fugler described as a Catch 22 ... that she believed on reasonable grounds that it was necessary for her to do in self-defence what she did, or alternatively that she was provoked to do what she did in the sense that I outlined to you earlier.” (p.15 at para 50)

    Feminist Commentary:

    Neutral

    “Two clinical psychologists examined the defendant pre-trial and testified about BWS and the effects of the syndrome on Erika Kontinnen... Kontinnen was acquitted. The jury, through expert evidence, apparently became convinced that, for her, the danger was imminent and that the homicide was committed in self-defence. Whether this outcome was the result of BWS testimony or the extreme nature of the violence which the defendant had endured, cannot be assessed except though time and the continued use of BWS in the courts.” (Easteal 1992, p.223)

    “Whilst there are now examples of battered women who have killed in the context of domestic violence successfully raising self-defence [refers to Kontinnen and Hickey here] it is still the case that there are many instances of women who seem to fall within the substance of self-defence either being convicted of manslaughter on the basis of provocation or plea bargaining a manslaughter charge.” (Stubbs and Tolmie 1998, p.74)

    Negative

    “A focus on the battered woman syndrome and Ms Kontinnen's psychology is unfortunate in the context when the lack of available protection and support for her to leave the violent relationship is evident.” (Sheehy et al 1992, p.385)

  • Webb v R(unreported, 19 June 1992)
    South Australian Court of Appeal: White ACJ, Cox J, Mohr J
    Burglary.

    This was an appeal by a defendant against her conviction on a charge of breaking, entering and stealing. There were four charges that went before the jury in a trial that was completed within two sitting days. She appealed the inadequacy of the direction of the trial judge on the issue of duress.

    She told the jury of the manner of her association with Cahill and the domestic footing upon which they lived, and her case was based on the battered wife syndrome, “as it has sometimes, and particularly recently, been called”. She said that she was acting under Cahill's influence and domination, and that is why she participated in the two breaking offences. She called as a witness Mr Fugler, the forensic psychologist, whom she had consulted on at least two occasions and who supported her case by explaining to the jury what the battered wife syndrome is all about, and how it can lead to the subject being dominated by the offending partner.

    The Court of appeal held: The trial Judge’s directions were adequate. Appeal dismissed.

  • R v Stephenson (Unreported, August 1992)
    Queensland Supreme Court:
    Murder, self-defence.

    “Dagmar Stephenson was acquitted of murder on the basis of self-defence. The solicitor instructing in her case was the co-ordinator of the Brisbane Women’s Legal Service and chairperson of the Queensland Domestic Violence Council. The defence team chose not to tender evidence of the battered woman syndrome.” (from Stubbs and Tolmie 1994, p.223)

    Feminist commentary:

    Positive

    “The authors are now aware of three Australian cases in which self- defence has been successfully run by women who have been the target of domestic violence without the use of supporting BWS evidence. Such outcomes may reflect a growing awareness by the judiciary and the community of the incidence and nature of domestic violence.” Authors are referring to Lock, Stephenson, and Stjernqvist. (Stubbs and Tolmie 1999, pp.739)

  • R v Hickey (unreported, 14 April 1992)
    NSW Supreme Court: Slattery AJ
    Murder, self-defence, Indigenous.

    “Hickey was acquitted of the murder of her ex de facto, Priestley. Evidence was presented of a long history of violence by the deceased against the accused and also against their children. Hickey had left the relationship three weeks before the killing and had obtained an apprehended violence order. The deceased had ignored the order, allegedly tearing it up in front of her. On the night of the killing Hickey had agreed to meet with her ex de facto to allow him to see the children. He tried to prevent her from taking the children, threw her on the bed and attempted to strangle her. After he had stopped his attack and sat on the bed, she stabbed him with a knife. Expert evidence concerning the battered woman syndrome was admitted at Hickey's trial without question, and with no objection from the Crown.”  (Sheehy et al  1992, p.383)

    Feminist commentary

    Neutral

    “Hickey was the third Australian case, and the first in the state of New South Wales, to accept evidence of the battered woman syndrome.” (Stubbs and Tolmie 1995, pp. 125)

    Positive

    “The circumstances of this homicide were more identifiable as self-defence in the traditional terms of immediacy. BWS testimony was not needed to redefine immediacy but to explain why she had no other recourse but to kill.” (Easteal 1992, p.222)

    Negative

    “For Australian feminists pondering the consequences of introducing the battered woman syndrome into our criminal courts, Hickey represents the optimum in terms of the result. However, a close analysis of Hickey reveals an important issue, one that is vital to understanding the context in which the defendant acted and yet one that has not been adequately addressed by feminist scholarship concerning the battered woman syndrome: the issue of race and racism. What the synopsis of the facts of Hickey presented above does not mention, and what many feminist responses to battered woman syndrome to date have not read as significant, is that, like the accused in Lavallee, Hickey was an Aboriginal woman... We will argue that the use of the battered woman syndrome worked to reinforce racist and ethnocentric assumptions about the accused, to represent her as inadequate, and to obscure the violence she had suffered.” (Stubbs and Tolmie 1995, pp. 125)

    “The argument of this case note is that despite the acquittal of Hickey, the evidence of the psychologist reveals the inadequacy of this model for battered women, particularly Aboriginal women and women of ethnic minorities, and the danger of BWS reinforcing inappropriate stereotypes of women.” (Burdrikis 1993, p.365)

    “First, the fact that Hickey was an Aboriginal woman is crucial to any realistic understanding of the circumstances prompting her defensive behaviour. Secondly, the expert witness's characterization of Hickey as fitting within the learned helplessness model, although ostensibly silent on race, is heavily laden with racist and ethnocentric assumptions.” (Stubbs and Tolmie 1995, pp. 128)

    “One reading highlights the justice done in the jury's decision to acquit her, and yet expresses disquiet about the manner in which women who are battered are constructed by the courts. A second, more sobering reading, is that her acquittal comes as a consequence of a racist criminal justice system not valuing the life of an Aboriginal man. The first is a feminist reading, the second a reading informed by anti-racist discourse. Both are probably true, but neither alone attends to the particularity of Hickey's positioning.” (Stubbs and Tolmie 1995, pp. 157)

    “However, it is probably fair to say that in the majority of Australian cases in which BWS has been introduced it appears to have been narrowly construed and directed primarily towards explaining the psychology of the particular accused or of battered women in general.” Authors are referring to the cases of Bradley, Tassone, Hickey,Runjanjic and Kontinnen, Raby.  (Stubbs and Tolmie 1999, p.727)

    “By using rules of evidence the court is able to control the type of explanations presented in court of domestic violence and the effects it has on women. Allowing evidence of BWS places domestic violence in the realm of science, to be presented to the jury by an "expert" witness. The law appropriates a certain image of domestic violence, shaped by the preconceptions of psychologists and devalues the woman's own  experience. Women's crime is often portrayed in medical terms as the product of irrationality. In the case of BWS psychological evidence such as that given in Hickey results in the continuation of the portrayal of women as irrational beings. The psychological evidence in Hickey emphasises the passivity and dependency of Hickey's personality. The psychologist states "that the woman who fits into the[e] category [of BWS] is somebody who has a learned helplessness in a situation and is also passive in a situation". (Burdrikis 1993, p.366)

    “The psychologist explains learned helplessness in BWS as a consequence of Hickey's personality, rather than a result of the sustained violence, as contemplated in the work of Lenore Walker. In his evidence he states that Hickey is an immature, dependent person of low intelligence, who would ‘only be able to cope with a simplistic lifestyle’. (Burdrikis 1993, p.367)

    “The evidence provides limited insight into the dynamics of domestic violence and the reasons why a woman may kill to escape a violent  relationship. Stereotypical images of battered women are perpetuated: they make it easy to blame the woman for domestic violence. By focusing on Hickey's personality, attention is diverted from any analysis of the physical conditions under which she lived. While her act was a response to assaults by her spouse, there is little discussion of Priestley or the dynamics of male violence. The financial situation of the couple is not stated, nor whether poverty may have contributed to conflict in the relationship.”(Burdrikis 1993, p.368)

  • R v Spencer (Unreported, 18 December 1992)
    NSW Supreme Court: Matthews J
    Manslaughter, provocation, diminished responsibility.

    Summary:

    The accused's manslaughter conviction for killing her abusive husband was accepted by the prosecution on the basis of the provocation offered by her husband . It was accepted that the victim had taunted and physically abused the accused and that this extended over a long period of time. In sentencing, the judge focussed on the emotional fragility and vulnerable personality as providing explanations for her extreme stress reaction. The judge mentioned the amnesic effect of extreme stress. The sentencing judge considered that the evidence of the 'fragile nature of the prisoner's mental state’ was relevant as it raised the possibility of diminished responsibility, 'whether or not  the defence ... existed in a legal sense' (at 12).” The judge notes that ‘it is a not unusual phenomenon for women, even women without children, to feel trapped in relationships and to lack the will or the capacity to escape from them.’ (at 11). She was imprisoned for three years, to be served by way of periodic detention.

    Feminist Commentary:

    Positive

    “While the Court did not use the label ‘battered woman syndrome’, it accepted expert evidence from a psychologist and a psychiatrist which amounted to the same thing.’ (Stubbs and Tolmie 1994, p.202).

  • R v Kina [1993] QCA 480 (29 November 1993) | austlii
    Queensland Court of Appeal: Fitzgerald P, Davies and McPherson JJA
    Murder, provocation, petition for mercy.

    Summary:

    In 1988, after a trial which lasted less than a day the appellant was convicted in the Supreme Court of Queensland of murdering her de facto partner, and was sentenced to imprisonment with hard labour for life. The appellant did not give or call evidence at her trial, and her chance of acquittal depended solely on the possibility that the jury might not be satisfied from the prosecution evidence that she intended to cause death or grievous bodily harm.

    The prosecution case was that, at about 9 o'clock in the morning of the deceased’s death, the appellant and the deceased had an argument in the room which they shared at a house in West End, the appellant ran from the room to the kitchen of the house, obtained a knife, and returned to the bedroom where the deceased had remained. The appellant then knocked a chair which the deceased had picked up out of his hand and stabbed him with the knife, causing the injuries of which he died.

    The trial judge ruled that there was insufficient evidence to justify leaving provocation for the consideration of the jury. That decision was subsequently upheld in the Court of Criminal Appeal, which dismissed an appeal by the appellant against her conviction on 23 November 1988. 

    In May 1993, a petition for a pardon was delivered to the Governor on behalf of the appellant following which, pursuant to section 672A of the Criminal Code, the Attorney-General  referred "the whole case with respect to the conviction of ... Robyn Bella Kina on the charge of murder to the Court of Appeal to be heard and determined by the said Court”.

    The Court of Appeal held:  miscarriage of justice, appellant’s conviction quashed.

    Fitzgerald P and Davies JA commentary

    “[I]t is not for this Court on this occasion to express an opinion on the elements and characteristics of what has been termed the "battered woman syndrome" or to decide what consequences follow if the appellant was a victim of that syndrome when she killed the deceased. ... it was submitted that self-defence had now emerged as a possible ground of exculpation but was not raised by the material available to the appellant's legal advisers at the time of trial. Conversely, it was contended that, while the circumstances known to the appellant's legal representatives at the time of trial were sufficient, if given in evidence, to require that provocation be left to the jury, the present material does not raise provocation as an issue "because she never had an intention to stab the deceased until she was forced to in order to defend herself ...". However, it was accepted that, on any of the appellant's accounts, "there'd have been a good arguable case of ... lack of necessary intent." Further, it was accepted by the respondent that there is nothing to indicate that the appellant's lawyers at the time of her trial adverted to the significance of what she then said as a basis for raising provocation for the jury." (p.14)

    “The force of the respondent's argument based on the changes in the appellant's account of events is diminished if regard is had to the cultural, psychological and personal obstacles to full and frank disclosure by the appellant which have been eliminated or reduced by the passage of time, counselling and an increasing understanding of aboriginal communication difficulties and the "battered woman syndrome" and the problems which are presented in these matters. It is perhaps sufficient to observe that there is no basis upon which, in the circumstances, this Court could hold that the appellant's evidence must or should be rejected. Each of the experts, for different reasons, expressed opinions favouring the acceptance of her evidence.” (at p.14)

    “In this matter, there were, insufficiently recognised, a number of complex factors interacting which presented exceptional difficulties of communication between her legal representatives and the appellant because of:  (i) her aboriginality;  (ii) the battered woman syndrome; and  (iii) the shameful (to her) nature of the events which characterised her relationship with the deceased. These cultural, psychological and personal factors bore upon the adequacy of the advice and legal representation which the appellant received and effectively denied her satisfactory representation or the capacity to make informed decisions on the basis of proper advice”. (at p.15)

    Literature cited by Fitzgerald P and Davies JA

    • Burt, L ‘The Battered Woman Syndrome and the Plea of Self-Defence’ (1993) University of British Columbia Law Review Vol. 27, Issue 1, 93.

    Feminist commentary

    Positive

    “In R v Kina (1993) a battered woman's successful appeal against conviction for murder was based on the fact that poor communication between the appellant and her lawyers had effectively denied her satisfactory legal representation and the capacity to make informed decisions on the basis of proper advice. Battered woman syndrome was one of the factors identified by the majority of the court as having contributed to the poor communication.” (McMahon 1999, p.24)

    “The Kina case also raises the possibility of the review of the sentences or convictions of those women already serving long sentences for killing their violent partners.” (Stubbs and Tolmie 1994, p.203)

    Neutral

    “The clearest example of the distorting effect of poor communication with legal representation is the case of Kina.” (Bradfield 1998, p.72)

    “It is possible that if the full story had been revealed to her lawyer, self-defence would have been raised at her trial” (Bradfield 1998, p.73)

  • R v Woolsey (Unreported, 19 Aug 1993)
    NSW Supreme Court: Newman J
    Manslaughter and provocation.

    Summary

    The accused who pleaded guilty to the manslaughter of her husband, John Woolsey. Initially the accused was arraigned for the murder of her husband but the Crown accepted her plea for manslaughter in full satisfaction of the indictment. At the time when the Crown accepted her plea, it did so on the basis that there was sufficient provocation at the relevant time to justify the acceptance of the plea to the lesser but still serious charge.

    The deceased was abusive to the accused and her children when drunk. On the night of his death he had been drinking and had assaulted the children. The accused was scared and grabbed a knife just to ‘scare him off’. The deceased then assaulted her and she stabbed him.  Two psychologists gave evidence of ‘chronic domestic violence’ and ‘battered woman syndrome’ which the judge accepted.

    However, Newman J found “It follows that this is a feature which weighs very heavily in terms of mitigation of sentence in the instant case. I should add that the facts of the matter do not amount to a situation where I believe that, as the law now stands, the prisoner could have successfully claimed that she acted in self-defence of either herself or her son. (See Zecevic v Director of Public Prosecutions (Victoria), (1987) 162 CLR 645, particularly at 661). The importance of the finding of "battered woman syndrome" arises not in the context of the law relating to self-defence, but rather in the context, as I have said, of a powerful mitigating circumstance.”

    Newman J commentary

    In discussing BWS citing the case of Runjanjic and Kontinnen he finds that BWS is a “powerful mitigating circumstance.” (para 9)

     Supreme Court held: 4 years good behaviour bond. No imprisonment ordered.

    Feminist commentary

    Positive

    “Battered woman syndrome evidence was run successfully in mitigation of sentence and the Supreme Court of New South Wales imposed a suspended sentence.” (Stubbs and Tolmie 1994, p.201)

    “The cases Gilbert, Woolsey and Taylor demonstrate that there is now a significant possibility of a non-custodial or suspended sentence following a verdict of manslaughter.” (Stubbs and Tolmie 1994, p.203)

  • Winnett v Stephenson (unreported, 19 May 1993)
    Australian Capital Territory Magistrates Court: Burns SM
    Social Security fraud

    Summary

    “Shirley Stephenson was accused of seven counts of imposing upon the Commonwealth, contrary to s.29B of the Crimes Act 1914 (Cth). It was alleged that she had obtained two unemployment benefits and rent assistance from the Department of Social Security at a time when she was employed (the amount was approximately $45 000). The matter was defended on the basis of duress. The defendant admitted to the acts but gave evidence that throughout the relevant period she was subject to constant threats of death and acts of violence by her (ex) de facto spouse. This violence escalated over time and correlated with her decrease in income. When she obtained employment and wanted to stop receiving the dole, the defendant alleged that her partner abused her and threatened her (with covert references to death) if she did. Although she left the violent relationship in 1989, the batterer followed her and continued to threaten her with death. As a consequence, at his insistence she signed up for the dole in another jurisdiction, in her maiden name. By consent, the matter was dealt with summarily in the ACT Magistrates Court....[The] Defence counsel called the evidence of a criminologist (Patricia Easteal) in order to assist the court in understanding how a woman of 'ordinary firmness of mind' would respond in the experiential context of domestic violence, that is, the objective element of the test for duress.” (Easteal et al 1993, p.139)

    Feminist commentary

    Positive

    “The case of Winnett v Stephenson…is noteworthy in a number of respects. Although its potential value as a precedent is limited, it has the potential value for further instructing lawyers and judges about battered women and how the objective test for duress can be redefined for such women. It also illustrates the educative role of publications such as the Alternative Law Journal since the solicitor involved, Kate Hughes, read about battered woman syndrome in a 1992 issue and decided to lead it in evidence.” (Easteal et al 1993, p.139)

    “The fact that a non-medical expert's evidence was admitted is a precedent in this area and may go some way to allaying the anxieties of those feminists concerned with the medicalising of women's experiences.' Instead of the defendant's individual psychology, Dr Easteal stressed the societal variables and the on-going violence that can contribute to the situational response of battered woman syndrome. A clinical psychologist's evidence was also heard. This related specifically to the defendant whom he testified 'exhibited the indicia of battered woman syndrome': the subjective element of the test for duress.” (Easteal et al 1993, p.140)

    “Of particular significance in this decision is that a magistrate learned that reasonable behaviour for a battered woman may not be the same as it is for others: a lesson for the judiciary in understanding that what they, as white middle class males see as reasonable, is limited by their own narrowly defined perceptions. Another breakthrough was the acceptance of non-medical expert evidence about battered woman syndrome. All in all, this was a notable case which hopefully will act as a precedent or as a model in other similar situations. Certainly an essential first step for non-gender based 'justice' is to enable the judiciary to understand the battered woman's experience.” (Easteal et al 1993, p.139)

  • Scott v SA Police (1994) 61 SASR 589
    South Australian Supreme Court:  Mullighan J
    Shoplifting

    Summary

    The appellant was charged with the larceny from a supermarket. She pleaded not guilty and, after a trial, was found guilty and convicted of that offence. It was then alleged that she was in breach of a bond into which she entered into in 1992.

    The appellant acknowledged that she was in breach of the bond. On that charge she was sentenced to imprisonment for seven days and on the other charge she was sentenced to imprisonment for fourteen days to be served cumulatively. She appealed against these sentences on the grounds that they were manifestly excessive.

    The accused suffered serious ill health and extensive violence and mental abuse at the hands of her de facto husband. Dr Fugler, a forensic psychologist, expressed the opinion that the appellant had poorly developed coping skills under conditions of stress and her intellectual functioning is within the Lower Average range. According to him there were signs that she suffered the "battered woman's syndrome".

    Mullighan J found, “In my view the learned Magistrate gave too much emphasis to the prevalence of the offence of shoplifting and the need for general deterrence and too little emphasis to the personal circumstances of the appellant. True it is that she has a significant history of prior offending, but the material before the learned Magistrate established a psychological explanation for her conduct of a significant mitigating nature. It seems that the learned Magistrate discounted much of this material and there is no reason why he should have done so.” (p.3, para 6-7)

    The Supreme Court held: suspended sentences and accused to pay the sum of $200.

    Feminist commentary

    Positive

    [BWS] “It has not been confined to homicide but has been introduced in a diverse range of matters including social security fraud, shoplifting, armed robbery, and charges of perverting the course of justice, breaching the Companies (Tasmania) Code and dishonestly obtaining financial advantage.” Author referring to Scott v SA Police and also Casotti, Weiner, Winnett. (Stubbs and Tolmie 1999, p.720)

  • R v Singleton (1994) 72 A Crim R 117
    NSW Supreme Court: Levine J
    Intent to inflict grievous bodily harm, accessory, duress.

    Summary

    The accused was charged with intent to inflict grievous bodily harm and with being an accessory to the fact. The accused had acted with a man named Kirby (her abusive partner) to wound another man. The defence proposed calling evidence from a clinical psychologist which it submitted was relevant to the issue of the accused’s duress.  The Court considered whether expert evidence of BWS was submissible for duress. It rejected that it could be admitted.

    The Supreme Court held:

    1. The evidence to be relied on by the defence was of a non-expert nature and was not elevated beyond those matters ordinarily to be considered and decided by a jury.
    2. The evidence of the psychologist was distinguishable from that which has been properly been held to be admissible in relation to battered woman syndrome.
    3. It may well be that there will be cases where something less than the battered woman syndrome in terms of evidence is relevant and properly the subject of expert testimony, but in the present case neither requirement is satisfied.

    In rejecting the submission of BWS the Judge held that if it were to be admitted “there would necessarily follow, in mind, the development of an entirely different policy – that is, criminal responsibility would be judged solely by reference to discrete subjective circumstances and each accused person and thus itself would give rise to the question of who would judge the criminal responsibility in such circumstances...battered woman syndrome has opened the door; it can be opened wider, in the context of this case in something far less than the recognised recognised condition of battered woman syndrome that the law of duress would admit expert testimony of something less.” (p.125)

    Literature cited by Levine J

    • Sheehy, Stubbs, and Tolmie ‘Defending Battered Women on Trial: The Battered Woman Syndrome and its Limitations’ (1992) 16 Crim LJ 369.
    • Leader-Elliott ‘Battered But Not Beaten: Women who Kill in Self Defence’ (1993) 15 Sydney Law Review 403.

    However, note Levine J’s  decision to reject BWS evidence.

  • R v Casotti (1994) 74 A Crim R 294
    Victorian Supreme Court: Vincent, Teague , Crockett JJ
    Armed robbery, sentence mitigation.

    Summary

    This was a case of an appeal against sentence. The applicant was found guilty of one count of armed robbery. Following a plea for leniency she was sentenced to 6 years imprisonment and 5 years non-parole period.

    The appellant had been living with her de facto partner, Butterly, who had been convicted of numerous violent offences including manslaughter. The appellant and her partner committed a robbery together. The applicant's defence at trial was one of alleged duress. She said that her participation in the crime arose from a belief that if she did not participate she would suffer death or serious injury at Butterly's hands. It was submitted that the evidence disclosed that the applicant was suffering from "battered wife syndrome". The jury rejected the defence. Nevertheless, much was made in the course of a claim for clemency of what was said to be Butterly's dominion over and violence toward the applicant.

    On appeal the appellant submitted:

    1. the trial Judge erred in the exercise of his sentencing discretion in taking into account for sentencing purposes a statement made by Bessie Watts (the woman who was robbed).
    2. The Judge erred in the exercise of his sentencing discretion in equating the jury's finding of guilt against the appellant with a rejection on their part of the material placed before them concerning aspects of the 'battered woman' syndrome and then sentencing accordingly.
    3. The Judge erred in the exercise of his sentencing discretion in that he failed adequately to take into account the nature of the coercive relationship which existed between the appellant and Butterly in determining the appropriate sentence to be given to the appellant.

    The Supreme Court held:  A 5 year prison term is substituted and a non-parole period of 3 years.

    Vincent, Teague, and Crockett JJ commentary

    “But, as the applicant's counsel pointed out (more than once), whatever the phrase meant (and expert evidence on the topic from a consultant psychiatrist was called at the trial on behalf of the applicant), it was descriptive of a condition that might be, and probably was, different from a condition or state of mind whereby the applicant believed that she was at risk of imminent death or serious injury were she not to participate in the robbery. We think counsel was correct in the submission he made. It follows that we think that the judge misdirected himself on this aspect of the matter also. However, the error is of no significance.” [referring to this particular ground of appeal]  (p.4, at para 7)

    “Having regard to all the relevant circumstances we think that a sentence of five years should be passed. Those circumstances we should point out include the express finding of the judge that the applicant (who was 20 years Butterly's junior) had suffered violence at Butterly's hands; that he employed violence in order that he might dominate her and that he was "the brains of the outfit" who was responsible for corrupting the applicant. We would fix a non-parole period of three years.” (p.4, at para 9)

    Feminist commentary:

    Positive

    [BWS] “It has not been confined to homicide but has been introduced in a diverse range of matters including social security fraud, shoplifting, armed robbery, and charges of perverting the course of justice, breaching the Companies (Tasmania) Code and dishonestly obtaining financial advantage.” Author also referring to Casotti, Weiner, Winnett. (Stubbs and Tolmie 1999, p.720)

  • R v Chhay (1994) 72 A Crim R 1
    NSW Court of Criminal Appeal: Gleeson CJ, Finlay, Abadee JJ
    Murder, provocation.

    Summary

    This case was an appeal against conviction and sentence. The appellant was convicted of murder.

    The Crown case was that she killed her husband whilst he was asleep.  The appellant’s main defence at the trial was self-defence, based on her statement that her husband was attacking her with a knife when she killed him. That defence was rejected. The appellant had been the victim of a long period of violence physical and verbal abuse by her husband and there had been a violent quarrel, with threats and taunts from the husband, a few hours before he died. The appellant raised provocation at the trial, but the trial judge ruled that it was only available to be considered by the jury if they accepted as a possibility the appellant’s story of the knife attack. In issue was whether the trial judge should have left provocation to the jury on a wider basis.

    The Court of Appeal held:

    1. To establish a defence of provocation, it is essential that at the time of the killing there was a sudden and temporary loss of self-control caused by the provocation. However, there is no requirement that the killing immediately follow upon the provocative act or conduct of the deceased. The loss of self-control can develop after a lengthy period of abuse, and without the necessity for a specific triggering event.
    2. The combination of the history of the deceased’s conduct towards the appellant, the taunts and threats made to her on the evening of his death and the fact that the appellant was a quiet and submissive person would have entitled the jury to conclude that when the appellant killed the deceased, her actions were as a result of a loss of self-control.  The trial judge erred in refusing to put the issue of provocation on this wider basis.

    Gleeson CJ commentary

    In discussing the history of provocation, Gleeson CJ commented:

     “One common criticism was that the law’s concession to human frailty was very much, in its practical application, a concession to male frailty. It was noted earlier that the law of provocation originated, not as a coherent statement or principle, but as a multitude of single instances.” (p.11)

    “The law developed in the days when men frequently wore arms, and fought duels, and when, at least between men, resort to sudden and serious violence in the heat of the moment was common. To extend the metaphor, the law’s concession seemed to be to the frailty of those whose blood was apt to boil, rather than those whose blood simmered, perhaps over a long period, and in circumstance of least as worthy of compassion.” (p.11)

    Gleeson CJ went on to provide the details of the amended s 23 (provocation section) of the Crimes Act (NSW) that was amended as a response to the 1982 Task Force on Domestic Violence report to the New South Wales Government. He also provided the introductory statement by the Attorney-General on the amending legislation at the time in Hansard. (pp.12-13)

    Literature cited by Gleeson CJ

    • Nicholson, D and R Sanghvi, ‘Battered Women and Provocation’ (1993) Criminal Law Review 728.
    • Gleeson CJ cited a passage from this article:

      According to research and many cases themselves, battered women tend not to react with instant violence to taunts or violence as men tend to do. For one thing, they learn that this is likely to lead to a bigger beating. Instead, they typically respond by suffereing a ‘slow-burn’ of fear, despair and anger which eventually erupts into the killing of their batterer, usually when he is asleep, drunk or otherwise indisposed.” (from p.730 of article [reproduced by Gleeson CJ on p.11 of the case])

    Feminist commentary

    Positive

    “In spite of what appears clear language the question on appeal in Chhay was whether the abusive relationship, on its own, could constitute provocation or whether a specific triggering incident - the alleged knife attack by Mr Chhay- was required. The trial judge directed that the triggering incident was required but the Court of Criminal Appeal disagreed. The past abuse itself could be the provocation.” (Tarrant 1996, pp.192)

    “[T]he courts have endorsed the concept of the 'slow-burn’ loss of self-control.” Author referring to Osland and Chhay. (Bradfield 2000, pp.22)

    “A unique recognition of the gendered nature of the law on both self-defence and provocation in the Australian context is to be found in the judgment of Gleeson CJ in Muy Ky Chhay.” (Stubbs and Tolmie 1999, p.727)

    Negative

    “In light of the terms of s 23 the question was whether, in this instance, a specific triggering incident was required, but the Court nevertheless took the opportunity to address the gender issues inherent in the case in more detail. This throws up another matter. The fact that the question whether provocation should be put to the jury was addressed as a substantial issue suggests that in jurisdictions where a specific triggering event is not required the focus of analysis in provocation will shift to the objective element of the defence. Was the retaliation within the range that the ordinary person might have expressed? This is akin to the reasonableness requirement inherent in self-defence which, as Runjanjic ((1991) 53 A Crim R 362) and Lavallee ((1990) 55 CCC (3d) 97) show, itself raises important gender-related issues. Thus, other difficulties for women are foreshadowed in the trial judge's reasons. It would seem that even in the face of an express statutory provision he could not accept that Mrs Chhay's response to the abuse she received over 13 years was within the range of possible responses that an ordinary person might have expressed.”  (Tarrant 1996, pp.192)

  • R v Raby (unreported, 22 November 1994, no 94)
    Victorian Supreme Court: Teague J
    Manslaughter, automatism.

    Summary

    In this case the accused was found guilty of manslaughter.

    The accused had been married to the deceased for about eleven weeks prior to the time of his death. During this time she was subjected to severe domestic violence. After one particularly bad night of violence, the accused stabbed (9 times) the deceased to death.  Teague J commented that “[o]ne element is common to the testimony of all of the witnesses, including the doctors who saw you during October 5 and 6, that is, that you were not acting normally. Among the less graphic descriptions given of you were ‘dissociated’, ‘not with it’, ‘detached’, and ‘expressionless’. In my view, that abnormal state, although assessed by Dr Bartholomew as falling short of automatism, is a key factor in my ultimate assessment of how you should be punished.” (at p.1)

    The Supreme Court held: Sentenced to 28 months imprisonment with non-parole period of 7 months.

    Teague J commentary

    “I interpret the jury's verdict of manslaughter as reflecting their finding that at the crucial time, you did have the requisite intent to very seriously injure the deceased, but that at that time you had lost your self-control as a result of the final provocative acts and words of the deceased, which must be viewed in the context of his treatment of you over the previous eleven weeks.  Further, I take the view that, because of your dissociated state at the time that you lost your self-control, your actions are to be assessed as indicating a relatively low level of moral culpability.” (at p.2)

    Feminist Commentary

    Positive

    “This case was the first in Victoria where "battered woman syndrome" (BWS) was used to form part of the defence of provocation. The story of Keith Raby's criminal assault and criminal sexual assault of Margaret Raby over the eleven weeks of marriage formed a significant part of the evidence led by the defence in the trial and at sentencing.” (McCarthy 1995, p.141)

    “McCarthy criticises the emphasis placed on Raby’s psychological state... [h]owever, such a strategy was required by the defence of provocation, which necessitates that the defendant have lost control. It is submitted that, given the circumstances in which the actual killing took place, this defence was the appropriate one.” [see McCarthy’s negative assessment below]  (Hubble 1997-1998, p.117)

    “It is difficult to see how Raby’s case illustrates any deficiencies in the law of self-defence. Certainly, McCarthy points to no evidence which suggests that Raby’s final use of lethal force was motivated by a fear for her life. While McCarthy laments that women’s experiences are contorted ‘to conform to legal categories constructed upon masculinist premises’ she similarly subverts Raby’s own experiences by ignoring both the circumstances of the killing and the sentiments that Raby expressed about her own husband.”  (Hubble 1997-1998, p.117)

    Negative

    "Pathologised" and "medicalised", Margaret Raby's own version of the events within the marriage, including her experience of those events, were ultimately subordinated to the "psy" disciplines, those discourses of psychology and psychiatry.” (McCarthy 1995, p.144)

    “The first of these criticisms concerns the relative invisibility of any kind of condemnation of the acts perpetrated by Keith Raby in the judge's sentencing remarks and in the subsequent media coverage. Through this omission, a critical opportunity was missed to communicate an intolerance of violent men by the law, posthumously in this case.” (McCarthy 1995, p.142)

    This case used in an example where Seuffert is discussing: “The assumption that it is contradictory for women to love men who abuse them physically, psychologically and sexually is sometimes used in cross-examination of women who have been in abusive relationships to suggest that they are lying about the abuse, or to impinge on their credibility as witnesses.” (Seuffert  1999, p.211-212)

    “However, it is probably fair to say that in the majority of Australian cases in which BWS has been introduced it appears to have been narrowly construed and directed primarily towards explaining the psychology of the particular accused or of battered women in general.” Authors are referring to the cases of Bradley, Tassone, Hickey,Runjanjic and Kontinnen, Raby. (Stubbs and Tolmie 1999, p.727)

  • J v The Queen (1994) 75 A Crim R 522
    Victorian Court of Appeal: McDonald , Brooking , Southwell  JJ 
    Incest, indecent assault.

    Summary of case

    The appellant was convicted of 10 counts of incest and 3 of indecent assault against his daughter.

    The appeal was based on the fact the expert at trial, Dr Bartholomew, referred to things he had read, without referring to the detail of those sources, so it was argued there was no support for his opinion. He did refer obliquely to two works by Dr Lenore Walker (“entitled The Battered Woman and The Battered Woman Syndrome.”) Another question for the Court on appeal was whether the evidence of BWS should have been admitted at all. Brooking J held that it should not have been admitted because, “It is not clear whether he was saying on the voir dire that there was a syndrome which resembled the battered woman syndrome and which was or might be found in women or children who had been subjected to sexual abuse over a long period of time by a father or other person in a position of trust or whether on the other hand he was saying that the misconduct giving rise to the syndrome was sexual abuse by such a person combined with actual or threatened violence. The evidence of the complainant, and the short summary given to the witness near the beginning of his evidence on the voir dire, mentioned both forms of misconduct.” (p.6)

    Essentially, the Court found the evidence of BWS in the context of sexual abuse should not have been admitted in this case.

    BWS was used to explain the why the victim of sexual abuse did not leave home until she was 29 years of age, despite her father sexually abusing her for over a 21 year period.

    The Supreme Court held: overturned conviction of the accused and ordered a new trial.

    The trial judge’s commentary – via Brooking J

    “In charging the jury his Honour summarised the evidence of Dr Bartholomew as follows: There was a well-recognised psychological condition known as the battered woman syndrome; it was part of or closely akin to a post-traumatic stress syndrome; the feature of it was a learned helplessness, a difficulty in breaking away from an assaultive or destructive relationship; if the complainant's narrative was accurate (as to which the witness expressed no opinion), that narrative was consistent with the syndrome; it was not inconsistent with the pathology of the condition for greeting cards to be sent or for the victim to go away on holiday and then return home. Shortly after this his Honour said that in considering the defence argument based on delay in complaining the jury should bear in mind the evidence of Dr Bartholomew that "one of the explanations may well be the battered woman syndrome" and his evidence that from what he had read of the complainant's testimony there was nothing that would take her outside the battered woman syndrome.” (at p.6)

    Feminist commentary

    “Judicial scepticism concerning the use of the term 'syndrome' is increasing, suggesting that the courts may more rigorously examine syndrome evidence - including battered woman syndrome - in the future.  The Victorian Court of criminal Appeal in J v The Queen (1994) was critical of the expert testimony of a psychiatrist who gave evidence to the trial court concerning the psychological state of the complainant in a sexual assault case. The psychiatrist testified that the alleged victim demonstrated 'partial [battered woman] syndrome'. The court noted that the expert witness failed to inform the jury about battered woman syndrome and was critical of the extraordinarily wide' definition of a syndrome provided by the expert psychiatrist.”  (McMahon 1999, pp. 37)

     “Some expert witnesses have characterised BWS in such a way as to suggest that battered women in general, or a particular accused, are not reasonable. This has the capacity to undermine claims to self-defence. A classic example of this approach is found in the expert testimony of J v The Queen.” (Stubbs and Tolmie 1999, p.724)

  • R v Taylor (unreported, 3 Feb 1994)
    South Australian Supreme Court: Olsson J
    Manslaughter, excessive self-defence

    Summary

    “On the night of the killing, the deceased 'punched, kicked and half strangled' the accused, leaving her 'lying on the floor in a state of considerable distress'. Marion Taylor went upstairs and loaded her husband's rifle. She shot the deceased while he was watching television. There was clear medical evidence that Taylor had been the 'victim of a major assault' on the night of the killing and the trial judge had no doubt about the brutality of the relationship. The cumulative course of conduct, including the violence on the night of the killing, could not form the basis for a plea of self-defence as it was said that the response was 'excessive.' Taylor pleaded guilty to the manslaughter of her husband.” (from Bradfield 1998, p.78)

    Feminist commentary

    Positive

    “The cases Gilbert, Woolsey and Taylor demonstrate that there is now a significant possibility of a non-custodial or suspended sentence following a verdict of manslaughter.” (Stubbs and Tolmie 1994, p.203)

    Negative

    “The comments in R v Taylor support the view that the use of a weapon in response to a violent assault is generally excessive.” (Bradfield 1998, p.78)

  • R v Tassone (unreported, 16 April 1994)
    Northern Territory Supreme Court: Gray J
    Attempted unlawful killing, self-defence

    Summary

    “In Tassone, the Northern Territory Supreme Court left the question of self-defence to the jury. The accused was charged with attempted unlawful killing. She shot her violent husband (who survived) whilst he was sleeping and after he had assaulted and raped her. Her evidence was that she was terrified of his extreme and unpredictable violence, that she had unsuccessfully tried to leave him on a number of occasions and now believed that there was no escape from him, and that the rape had 'upped the ante' in the sense that it demonstrated a new level of violence towards her. Although her husband had not verbally threatened her before he fell asleep, the general and ongoing threat that he presented to her, which was demonstrated by his past behaviour towards her, was obviously satisfactory to the jury in terms of the Code. She was acquitted on the basis of self-defence.” (from Stubbs and Tolmie 1999, p.734)

    Gray J, instructing the jury, said that the expert's evidence on BWS

    “seeks to explain why a woman suffering this kind of ill-treatment feels trapped within such a relationship, suffers a massive loss of self-esteem, is likely to exaggerate in her mind the immediacy of threats of further violence and generally feels overwhelmed by the endless hopeless future she sees before her, until very often a violent reaction occurs.” (from Stubbs and Tolmie 1999, p.729)

    Feminist commentary

    Neutral

    “In Tassone, an expert witness testified that in some cases a woman's perception that she is trapped in an abusive relationship might be reinforced by reality. She said that: ‘[S]ometimes ... that sense of no escape[,] of being  trapped, helpless in the situation is reinforced by the reality of the situation. They can be caught up with that partner because of children, because of nowhere else to go to, no money to get there, no means of support. Sometimes those are definite realities sometimes they are just the result or perception of the individual because they have such a sense of worthlessness and hopelessness about themselves.’ She also made the point that 'the actual studies show that in a significant number of cases the abuse does end in the death of the woman' and that it is unusual for women to kill in these circumstances - they are more likely to be victims.” (Stubbs and Tolmie 1999, p.729)

    Negative

    “[A] close reading of the judge's comments throughout the trial transcript indicate that Tassone is not a strong authority for the proposition that pre-emptive strikes will satisfy the self-defence test. It is clear from comments made during the trial, although not from his instructions to the jury, that Gray J did not have much confidence that a sleeping aggressor could present a 'threatened assault' against which a woman could be defending herself. He also expressed doubts about the veracity of BWS evidence but felt bound by authority to admit it. In the end he left the question of self-defence to the jury on the basis that a trial judge needed to be extremely careful about withdrawing issues of fact from the jury. He commented that the case before him ‘[o]n any conceivable view... [is] on the outer limit of self-defence cases, [it] will be very likely to be beyond the outer limit, but I say my inclination is to leave it [to the jury].’” (Stubbs and Tolmie 1999, p.734)

    “However, it is probably fair to say that in the majority of Australian cases in which BWS has been introduced it appears to have been narrowly construed and directed primarily towards explaining the psychology of the particular accused or of battered women in general.” Authors are referring to the cases of Bradley, Tassone, Hickey,Runjanjic and Kontinnen, Raby. (Stubbs and Tolmie 1999, p.727)

  • R v Bradley (unreported, 14 Dec 1994)
    Victorian Supreme Court: Coldrey J
    Manslaughter, provocation.

    Summary

    In this case the appellant was charged with murder but convicted of manslaughter at trial, for the death of her de facto husband, James Bradley.

    The Court found that the accused fired the fatal shot with the intention of killing Bradley; but that action was partially excused on the basis of provocation. The accused had purchased and hidden cartridges the day before the deceased's death and had told the police that she intended to kill the deceased to end her life of torment. She added, however, that she did not know when, where or how or whether she would have the courage to do so. The jury, by its verdict, rejected the allegations that this was a pre-planned killing.

    Coldrey J commented that “Courts must be careful not to appear to condone vigilante actions or to suggest that self-help in eliminating the problem of the battering male is legally acceptable. However, when considering the sentence to be imposed in any particular case of manslaughter it is necessary to deal with that case in the light of all the circumstances relevant to the offence and the offender. I have already adverted to some of those circumstances in the present case.” (p.4, para 150)

    The Supreme Court held:  Guilty of manslaughter, 2 years suspended sentence.

    Coldrey J commentary

    “I have by no means described every episode of your traumatic relationship with the deceased to this time but have covered some of the salient features of it which led Dr Kenneth Byrne and Mr Bernard Healey, both experienced clinical psychologists, and Dr Alan Bartholomew, a highly credentialed forensic psychiatrist, to conclude that you represent a classic case of battered woman syndrome. Among the characteristics of that syndrome is a feeling of helplessness where battered women believe there is nowhere they can go and no-one to turn to for help; and further, where such women become depressed, frightened and anxious.” (p.3 at para 147)

    “These events cannot be seen in isolation but as representing a culmination of years of abusive and controlling behaviour to which you had been subject. Additionally, you were in a debilitated state and experiencing fear and panic at what you perceived as your own imminent death. You also feared for the safety of your two sons. Consistent with the effect of the battered woman syndrome and your prior experiences, you formed the view that no-one could help you. It was at this point that the dam of self-control that you had built up over the years burst and the shooting occurred” (p.4 at para 149)

    Feminist commentary

    Positive

    “Since 1991 expert evidence concerning BWS has been accepted in all Australian states and territories and in a range of contexts.  It has been used extensively in mitigation of sentence [footnote referring to Bradley here].”  (Stubbs and Tolmie 1999, p.720)

    Negative

    “The case of Bradley illustrates how the courts tend to interpret the killing of a violent partner as raising provocation rather than self-defence.” (Bradfield 1998, p.73)

    “There were certainly reasonable grounds for the accused believing that the only way to preserve her own life was to kill the deceased. Even without the evidence of battered woman syndrome, there appears to have been ample evidence to leave the defence of self-defence to the jury for consideration. Why did the trial judge refuse to leave the defence of self-defence for the consideration of the jury in Bradley? The answer lies in the fact that the circumstances of the killing did not conform to the traditional ideas of a killing in self-defence.” (Bradfield 1998, p.76)

    “The verdict in the case of Bradley, as in the case of so many battered women who kill their husbands, was not just and it was not fair.” (Bradfield 1998, p.81)

    “However, it is probably fair to say that in the majority of Australian cases in which BWS has been introduced it appears to have been narrowly construed and directed primarily towards explaining the psychology of the particular accused or of battered women in general.” Authors are referring to the cases of Bradley, Tassone, Hickey,Runjanjic and Kontinnen, Raby. (Stubbs and Tolmie 1999, p.727)

  • R v Waugh (1994)
    Queensland Supreme Court
    Murder, accident, conditional pardon.

    Summary

    This case was a plea for clemency based on the applicant’s exposure to domestic violence that came to light after sentencing.

    “The authors are aware of only one successful clemency plea in Australia. Although Eileen Waugh was in an unusual situation in that she was in the onerous position of being caught between jurisdictions, the case does present some hope that battered women who have been incarcerated for killing an abuser in more general circumstances might be able to take advantage of a similar process. Waugh, who had separated from her violent husband, shot him during a meeting she had agreed to in the hope that she could defuse the situation between them. Prior to the meeting he was persistently phoning her house and threatening to kill her and her boarder. At the time she was living in Queensland, having fled there from New South Wales during one of her many attempts to escape the violence. The Director of Public Prosecutions offered to drop murder charges if she agreed to plead guilty to manslaughter. She refused and her defence was conducted on the basis that she had accidentally shot her husband whilst struggling with her boarder who was holding a gun (purchased to protect them from the deceased) and arguing with the deceased. At the beginning of 1989 she was found guilty of murder and given a mandatory life sentence under s 305 of the Criminal Code Act 1899 (Qld). Waugh successfully applied to be transferred to New South Wales, where her family and friends resided, to serve her sentence. At the end of 1994 she made an application to the Governor of New South Wales to exercise the Royal prerogative of mercy, grant her a conditional pardon and immediately release her. This was the only basis on which Waugh could get an early release as the provisions in the Sentencing Act 1989 (NSW) allowing for early release did not legally apply to interstate transfer prisoners. The Queensland Corrections Board would not consider her release whilst she remained a prisoner in New South Wales. The main ground for her request was that there was new evidence which had not been made available to the courts in the original trial and appeal. In particular the long history of domestic violence that she suffered was not 'ventilated in any meaningful way in her trial as it did not fall within any of the "defences" available to a charge of murder.'  In particular her counsel submitted that:

    The defences of accident, self-defence and provocation, in their present construction, cannot and do not adequately allow for her experience, and her state of mind at the time, to be taken into account. Until there is a real change in the laws so that the reasons why women kill their husbands may be adequately explored, women like Ms Waugh will continue to be convicted of murder. Ms Waugh's case presents an ideal opportunity to correct a grave injustice and provide that the legal system can and will work in the interests of justice.’” (from Stubbs and Tolmie 1999, p.743)

  • R v Rogers (Unreported, 11 Dec 1995)
    Victorian Supreme Court: Hampel J
    Manslaughter, mitigation of sentence.

    Summary

    The accused pleaded guilty to one count of manslaughter for the death of her de facto partner. The accused had been in a turbulent relationship with the deceased since 1991 which included abuse as well as physical and sexual assault. The accused said that she continued to live with the deceased because she did not have the strength to get away from him, that she was financially dependent upon him and that despite his abuse she still loved him. On the night of his death the accused told the police about the incident itself and demonstrated what had occurred. She said that the deceased became abusive, followed her into the kitchen near the sink area and tried to get hold of her around the neck. She said she just wanted him to keep away and she picked up a knife that was lying on the sink. He kept coming at her, and she stabbed him once in the chest. She said that you did not realise that she had stabbed him and had no intention of stabbing him. She said that she was afraid that he would hurt her as he had done on previous occasions. Hampel J said he did not have to decide whether or not the case was one of BWS (the psychiatrist gave evidence that she was suffering from BWS). Rather, his Honour stated, “[o]n the whole of the material before me I have concluded that despite your own conduct you were nevertheless the victim of repeated verbal and physical abuse.”

    The Supreme Court held: 4 year sentence, wholly suspended, and alcohol dependence treatment.

    Hampel J commentary:

    “The turbulent and violent relationship with the deceased in which you both participated but in which I find you to have been the victim of repeated violence in a state of intoxication at the time by both of you and the deceased, and the fact which I accept to a significant degree, your account that you were in fear at the time.” (p.3 at para 17)

  • R v Terare (unreported, 20 April 1995)
    NSW Supreme Court: Levine J
    Murder, self-defence, acquittal, judge alone trial.

    Summary

    Doris Terare was charged with the murder of Peter Golusin. She stabbed him in the course of a struggle. There was evidence that both parties had been violent. The accused was intoxicated when she stabbed the deceased. A Doctor provided evidence of battered woman syndrome. Justice Levine stated ‘I am not persuaded in the overall picture of things that there was no reasonable possibility that the event occurred as the accused said, that she was acting in self-defence’ (at 8). The judge accepted that the accused was trying to leave the relationship when the struggle began.  She was acquitted.

  • R v Lyons (Unreported, 25 Aug 1995)
    NSW Supreme Court: Dunford J

    Summary

    Not available.

    Feminist commentary

    Neutral

    “[T]here have been a few recent instances where an expert witness providing testimony concerning BWS has focused primarily on the context in which the accused found herself, rather than her psychology. One example is contained in R v Lyons where the expert witness’ account focused heavily on the violence and psychology of the perpetrator rather than the accused. Whilst he listed 12 characteristics commonly seen in women with BWS...these latter states of mind are not presented by the expert as pathological but rather reasonable or normal in the circumstances.”  (Stubbs and Tolmie 1999, pp.728-729)

    “The expert also identified ‘eight types of behaviour which Amnesty International has described as psychological torture’ which can appear in battering relationships. For example, controlling the person’s social contact, exhaustion (sleep and food deprivation), manipulating the way the person perceives reality, threatening to kill a person and then their family, humiliation, administering drugs and alcohol, inducing an altered state of consciousness by disturbing a person’s ability to think clearly, indulging the person for short periods of time: Transcript of Proceedings, Lyons (Supreme Court of New South Wales, Dunford J, commencing 21 August 1995, 25 August 1995) 271.” (Stubbs and Tolmie 1999, pp.728-729 footnote 95:)

  • R v Gadd (unreported, 27 March 1995)
    Queensland Supreme Court: Moynihan J
    Murder, self-defence, acquittal.

    The accused was acquitted of murder after stabbing her husband, Leonard Mickelo with a pocket knife. The most likely defence was self-defence. The witnesses testified to a history of family violence.

    Feminist commentary

    Positive

    "One of the most interesting features of this case is that the expert testifying about the material normally understood in terms of BWS was a social worker rather than a psychologist. The social worker had extensive experience working with battered women and amongst many other qualifications, had worked as the coordinator of a women's health centre, a domestic violence resource centre, and a women's refuge, as well as doing counselling or crises intervention work with over 700 women who had experienced domestic violence. She testified about domestic violence generally, including the cycle of violence. She explained the difficulty battered women might have in leaving violent relationships and their tendency to hide the abuse in terms of the violence they experience. She did not testify about the concept of learned helplessness nor any other psychological characteristics of the woman concerned." (Stubbs and Tolmie 1999, p.731)

  • R v McIntyre (Unreported, 15 March 1996)
    NSW Supreme Court: McInerny J
    Manslaughter, provocation.

    Summary

    The accused was charged with the murder of her de facto partner. When indicted, she pleaded not guilty to murder but guilty to manslaughter, which the Crown accepted in full satisfaction of the indictment. The Crown case on provocation was based on the inhumane treatment she received from the deceased over the time that she lived with him, a period of approximately three and a half years.The accused submitted that prior to her stabbing the deceased, the deceased grabbed her hair at the back of her head. That indicated to her, from previous occasions, that he intended to seriously assault her. She grabbed a knife and stabbed him 8 times.

    Despite the horrific outlining of abuse that the accused had suffered, (and psychiatric evidence) McInerny J stated, “I emphasise that whilst it is said by some of the psychologists that this is analogous to a battered woman's syndrome, as I pointed out, this is not a case of a woman with young children who was utterly dependent on the support of her husband. She was free to leave at any time, and action could have been taken against the deceased to stop him harassing her or her family, but for the various reasons she advanced she chose to stay with him.” (p.8 at para 22)

    The Supreme Court held: 6 years imprisonment, 2 years non parole period.

  • R v McEwen (unreported, 7 February 1996)
    Western Australian Supreme Court: Walsh J
    Manslaughter, provocation, mitigation of sentence.

    Summary

    Robert McEwen was charged with the murder of Thomas Hodgson, his lover and partner of 14 years. At trial the jury could not reach a unanimous verdict. Prior to the retrial the prosecution accepted a plea of guilty to manslaughter on the basis of provocation. McEwan was sentenced to imprisonment for 5 years.  McEwen was 17 years old and Hodgson was 33 years old when the couple met and began an openly homosexual relationship.  At the original trial McEwen gave evidence that Hodgson was domineering, that he controlled McEwen’s finances, his social life and that he was fearful of Hodgson. A psychiatrist gave expert evidence of McEwen’s ‘learned helplessness’ at the trial (from Simone, 1997).

    Feminist commentary

    Negative

    ‘The BWS defence distorted more than it explained not only with respect to the particular responses of Robert McEwen to prolonged domestic violence, but more generally, in relation to the nature and context of same sex battering. In this sense, BWS can work to reinforce the rigid, hierarchical and gendered binaries (active/ passive, dominant/submissive, victim/agent) which already inform legal reasoning, and which limit understandings of both heterosexual and gay and lesbian relationships.’ (Simone, 1997, 239).

  • R v Stjernqvist (unreported 18 June 1996)
    Queensland Supreme Court: Derrington J
    Murder, self-defence.

    Summary

    “The case involved a ‘non-traditional’ self defence fact situation in which the accused was using pre-emptive force.” (Stubbs and Tolmie 1999, p.739)

    Derrington J commentary

    “[W]hat emerges is necessarily a sad picture of serious violence – not violence that has caused any great physical harm at any particular time, but violence of such a nature that, you might think, would be virtually intolerable, particularly if one had the view that it was going to be never ending. To live in an atmosphere where there is constant threat of violence, you might think, is a very hard thing and must be very emotionally wearing. And, of course, after a while it becomes a case where not only is there physical violence, but the mere endurance of the threat of violence also becomes a form of psychological violence as well.” ([Derrington J at para 153], in Stubbs and Tolmie 1999, p.740)

    “Then you would have to consider whether or not in those circumstances the situation was so intolerable that she could not stay, having regard to his refusal to let her have other women around and that type of thing, which means she had the impossible situation of remaining there in those circumstances, or leaving and then being subject to the threat of being killed by him.” ([Derrington J at para 177], in Stubbs and Tolmie 1999, p.740)

    Feminist commentary

     Positive

    Stjernqvist is an interesting case in which an acquittal was achieved without expert testimony concerning BWS.”  (Stubbs and Tolmie 1999, p.739)

    “Derrington J delivered a very traditional summing up on the defences of provocation and self defence. However, the judgment also reveals a sophisticated understanding of the phenomenon of domestic violence. Instead of analysing the violence which the accused faced as a series of discrete instances with periods of calm in between, he analysed it in terms of a general overall threat that the accused lived with.” (Stubbs and Tolmie 1999, p.739)

    “Derrington J also had a clear grasp of the concept which Mahoney  has labelled 'separation assault', assisted perhaps by evidence of the deceased man's repeated threats to track down and kill the accused should she leave him. Derrington J interpreted these threats as a 'continuing assault' in terms of the Queensland Criminal Code Act 1899.” (Stubbs and Tolmie 1999, p.740)

    “The authors are now aware of three Australian cases in which self- defence has been successfully run by women who have been the target of domestic violence without the use of supporting BWS evidence. Such outcomes may reflect a growing awareness by the judiciary and the community of the incidence and nature of domestic violence.” Authors are referring to Lock, Stephenson, and Stjernqvist. (Stubbs and Tolmie 1999, pp.739)

  • R v Secretary (1996) 107 NTLR 1 | austlii
    Northern Territory Court of Criminal Appeal: Martin CJ (dissenting); Angel, Mildren JJ.
    Murder, self-defence.

    Summary

    The appellant pleaded guilty to manslaughter and was convicted for this.

    The accused had been in a de facto relationship with the deceased for 11 years. For the final eight years of the relationship, the deceased had verbally, mentally and physically abused the accused and their children. In 1994, the deceased had repeatedly assaulted the accused and just before falling asleep said words that may have amounted to a threat to kill or cause the accused grievous bodily harm. The accused returned to the bedroom with a gun and killed the deceased.  At trial the accused was charged with murder, but because the defence of self-defence had not been allowed to go to the jury, the appellant pleaded guilty to manslaughter.

    At the trial in 1995, the trial judge ruled that the issue of self-defence pursuant to s 28(f) of the Criminal Code (NT) should not be left to the jury. On application by the accused pursuant to s 408(1) of the Criminal Code, the question of law the subject of this ruling was reserved for consideration by the Court of Criminal Appeal. The trial judge reserved this question for the Court of Appeal: ``Was the trial judge's ruling of 1 December 1995 correct, that self-defence was not open for consideration by the jury in the circumstances of the case?''

    Martin J dissented, holding “In this context the word ``being'', in relation to the assault in respect of which the accused is said to be acting in self-defence, denotes a contemporaneous connection between the assault and the act of self-defence. This notion is reinforced by the need for there to have been in the deceased an actual or apparent present ability to apply force at the time of the threat. The word ``present'' means occurring at this time or now. Neither circumstance existed when the accused shot him to death. “

    Held by the Court of Appeal: Conviction overturned and new trial ordered, and:

    1. To constitute an “assault'' pursuant to s 187(b) of the Code, in the case of a threatened application of force, it must be evident from the facts known at the time the threat is made that at the time the threat is to be carried out, the person making the threat will then have the apparent ability to carry out the threat. In this context the reference in the section to ``present ability'' means an ability, based on the known facts as present at the time of the making of the threat, to effect a purpose at the time the purpose is to be put into effect.
    2. An assault is a continuing one so long as the threat remains and the factors relevant to the apparent ability to carry out the threat have not changed. Accordingly, there was no reason why the assault should have been regarded as completed merely because the deceased was temporarily physically unable to carry out his threat.
    3. There was no reason the ``assault being defended'' for the purposes of s 28(f) of the Code, ought not to be characterised as a continuing assault constituted by the threatening words uttered by the deceased immediately before he fell asleep, so that it was that assault which was being defended, not a possible attack in the future that may or may not occur.

    Angel J commentary

    “In my view ss 187(b) and 28(f) comprehend people taking action to defend themselves from a threatened assault, availing themselves of the excuse of ’self-defence’ even if their action is in the nature of a pre-emptive strike.  Having regard to the nature of the threat and the relationship between the accused and the deceased, as recounted in the stated case, it was in my view open for the jury to find that an assault was on foot at the time of the shooting (when the deceased was asleep) and that the accused was acting in self-defence. In my view self-defence ought to have been left to the jury.” (p.3 at para 3)

    Mildren J commentary

    “In the light of those observations and the approach the common law has taken since Zecevic v Director of Public Prosecutions, supra, there is no compelling reason why, in a case such as this, the ``assault being defended'' for the purposes of s 28(f) of the Code, ought not to be characterised as a continuing assault constituted by the threatening words uttered by the deceased immediately before he fell asleep so that, in truth, it is that assault which is being defended, not a possible assault in the future which may or may not occur, as the court in Whynot characterised it.” (p.8 at para 11)

    “The focus is not on the accused's status as a battered wife; it is on the questions whether the force was not unnecessary force, and whether the threats which constituted the assault, having regard to the history of the relationship, were such as to cause the accused reasonable apprehension that death or grievous harm will be caused to her in the future if she did not act in the way she did. Relevant to these considerations would be whether there were other lesser reasonable alternatives open, but I agree with the observations of Wilson J at 29-30 in Lavallee, that the law of self-defence does not require a person to retreat from his or her home instead of acting in self-defence.” (pp.8-9 at para 11) 

    Midren J also discussed cases that had raised battered wife syndrome.

    Feminist commentary

    Negative

    “In Secretary, the first instance judgment of Kearney J raises an important concern about battered women syndrome evidence in the... contemporary Australian context: that of the under-reporting of cases in which this form of evidence is involved. The issue of battered woman syndrome evidence was not addressed on appeal.”  (Tolmie 1996, p.online)

    “Other expert witnesses have added their own psychological embellishments to the more usual features associated with BWS. For example, the expert in Secretary also talked about regressions to a childlike space and childhood abuse experienced by the accused. Such evidence can have the effect of suggesting that the accused killed the deceased in a state of mind that was far from that of the reasonable adult.” (Stubbs and Tolmie 1999, p.728)

    “One of the features of Secretary … is that all of the judges dealt with the matter as though the assault against which the accused was defending herself were the words uttered by the deceased before he went to sleep, rather than the general threat he represented in the relationship with her.” (Stubbs and Tolmie 1999, p.735)

  • 1997 South Australia: Law Reform
    Criminal Law Consolidation Act 1935.

    Key reforms:

    Criminal Law Consolidation Act 1935

    The amended self-defence provision is below:

    S 15 Self-defence

    (2) It is a partial defence to a charge of murder (reducing the offence to manslaughter) if:

    1. the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but
    2. the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.

    Consideration of feminist critique:

    The change to this provision was based on the criticisms listed Gillman and Bednikov that the previous iteration was ‘unworkable’ and ‘ill-worded’ and was not based on any feminist criticism of the previous provision.

  • R v Lock (1997) 91 A Crim R 356
    NSW Supreme Court: Hunt CJ
    Murder, intention, self-defence

    Summary

    The accused was charged with the murder of a man with whom she was living at the time, although no longer in a de facto relationship. The Crown case was that the accused and the deceased had earlier in the evening attended a club together, but that the accused had gone home in a taxi after an argument had taken place between them. When the deceased arrived home shortly afterwards, in the early hours of the morning, there was further argument between them which was heard by the neighbours. Both were substantially intoxicated. The deceased was stabbed once in the stomach severing a major artery and a major vein, and he died within minutes.

    The issues raised by the accused were whether the stabbing was her deliberate act, whether the intention with which that act was done made it murder, and self-defence. In support of her case on self-defence, the accused intended to lead extensive evidence as to the nature of the relationship between the parties - in particular, that the deceased had violently assaulted her in their home over many years. The histories given by the accused related to violent assaults upon her by the deceased (mainly in the early hours of the morning) and of suicide attempts by her.  In the trial itself, various friends of the accused confirmed seeing the injuries to which she had referred, and her son gave direct evidence of two occasions when it was clear that the deceased had assaulted the accused.

    It was also submitted on behalf of the accused that there was no probative value in the evidence concerning the two stabbing incidents in October 1990, and October 1994 (where the accused had stabbed the deceased). The accused herself, however, was proposing to adduce evidence concerning the relationship between them which stretched back even earlier than 1990. Hunt CJ found no reason why the Crown should not be entitled to lead evidence relating to the same period.

    But this evidence was also relevant to rebut self-defence, which was opened to the jury by counsel for the accused as the significant issue in the case, one which in turn depended strongly upon the general relationship between the accused and the deceased. The ‘true’ nature of that relationship was therefore of great importance in the case, and the probative value of this evidence upon the accused's state of mind as to the necessity to do this act in self-defence was correspondingly high.

    The Supreme Court held:  Not guilty of both murder and manslaughter, and that the evidence was relevant as relationship evidence, and there was no reason to exclude it pursuant to s137 Evidence Act NSW. S136 and s137 Evidence Act NSW considered.

    Feminist commentary

    Positive

    “The authors are now aware of three Australian cases in which self- defence has been successfully run by women who have been the target of domestic violence without the use of supporting BWS evidence. Such outcomes may reflect a growing awareness by the judiciary and the community of the incidence and nature of domestic violence.” Authors are referring to Lock, Stephenson, and Stjernqvist. (Stubbs and Tolmie 1999, pp.739)

    Lock contains a strong and explicit acknowledgment that a relationship of violence is a highly relevant context for the assessment of an accused’s claim to have acted in self-defence. This is a positive step...Obviously, an acknowledgment of the significance of relationship violence means that the accused’s own behaviour in the context of the relationship can be used by the Crown to cast doubt on her credibility. It is possible to imagine cases where expert evidence might be used to provide the court with a realistic context in which to judge the accused’s past defensive force.”  (Stubbs and Tolmie 1999, pp.738-739)

    Negative

    “The case of R v Lock illustrates some of the potential difficulties women who fight back have in raising self-defence quite aside from issues of BWS. It may be just such difficulties which account for the fact that evidence of BWS was not offered in that case. The fact the accused in Lock previously had fought back against abuse by her partner may have been the reason why Hunt CJ at CL characterised the relationship as a ‘love/hate’ relationship, rather than as a relationship characterised by violence.” (Stubbs and Tolmie 1999, pp.737-738)

  • R v Lorenz [1998] ACTSC275 (14 August 1998) | austlii
    Northern Territory Supreme Court: Crispin J
    Robbery, duress, did not pass sentence.

    Summary

    The accused was arraigned on one count of robbery ($360 cash) with an offensive weapon, namely a knife. Upon her arraignment she pleaded not guilty.

    The defence of duress was based upon a threat which she said was made by Mr Jason Henshaw on the night before the robbery and repeated the following morning to the effect that if she did not obtain enough money to enable him to re-register his car he would kill her.

    The defence argued she was entitled to an acquittal on the grounds of duress. Her defence foreshadowed adducing evidence to the effect that the accused had been the victim of a violent and abusive relationship and that the defence of duress would be based upon what was described as "the battered woman syndrome".

    The accused was in an extremely violent relationship with her defacto partner. He had threatened that he would kill her if she didn’t get him money to register his car.

    Crispin J stated “A diagnosis of battered woman syndrome does not of itself give rise to any defence. The law does not recognise any general principle that people should be absolved from criminal conduct because they had been beaten or abused or because a psychological condition caused by such treatment may have led them to commit the offences with which they are charged. Nonetheless, evidence that such a person may have had a psychological condition of this kind may be relevant to several defences known to the law.” (para 31)

    However, Crispin J found that in the present case, however, there was no threat of imminent danger. And that the acts were committed with the requisite voluntariness. Crispin J did take into account the violence she was experiencing at the time of sentencing though.

    The Supreme Court held: Surety, in the sum of $1,000 and good behaviour for a period of three years.

  • Osland v R (1998) 1 HCA 75 | austlii
    High Court of Australia: McHugh , Kirby , Callinan J J, (Gaudron and Gummow JJ dissenting).
    Murder, self-defence, petition for mercy.

    Summary

    Heather Osland and her son, David Albion, stood trial in the Supreme Court of Victoria charged with a single count of murder of Frank Osland (husband of Heather Osland). The jury was unable to reach a verdict with respect to David Albion but convicted Heather Osland of murder.

    Heather Osland appealed unsuccessfully to the Victorian Court of Appeal. By the time of her appeal, David Albion had been retried and acquitted. Heather Osland then appealed to this Court. One aspect of her appeal relates to the failure of the jury to convict her son. On the prosecution case, it was he, alone, who struck the blow or blows that caused Frank Osland's death.

    Heather Osland mixed sedatives in with Frank Osland's dinner in sufficient quantity to induce sleep within an hour. According to the prosecution case, David Albion carried the plan to finality after Frank Osland went to bed by fatally hitting him over the head with an iron pipe in the presence of Heather Osland. And later, he and Heather Osland buried Frank Osland in the grave they had earlier prepared.

    Heather Osland and David Albion each relied on self-defence and provocation. Those defences were raised against an evidentiary background of tyrannical and violent behaviour by Frank Osland over many years but, according to evidence given by Heather Osland and her son, escalating in the days prior to his death. The prosecution accepted that Frank Osland had been violent and abusive towards Heather Osland in the past but contended that that behaviour had ceased well before his murder. That contention was made on the basis of certain intercepted telephone conversations to which Heather Osland was a party. In those conversations, which took place well after Frank Osland's death, Heather Osland made statements to the effect that his violence had ceased some years before his "disappearance". Another aspect of the appeal relates to the admission of evidence of other intercepted conversations. Further reference will be made to those other conversations in due course.

    In support of Heather Osland's case, expert evidence was led of "the battered wife syndrome". The use of that evidence and its relationship with self-defence and provocation are also in issue in this appeal. Evidence as to what has come to be known as "the battered wife syndrome" was given by Dr Kenneth Byrne, a clinical and forensic psychologist. That evidence was led without objection. Dr Byrne deposed as to characteristic patterns of behaviour in relationships involving physical, psychological or sexual abuse and characteristic reactions on the part of women in those relationships. “The evidence of Dr Byrne was that there is a reliable body of knowledge and experience with respect to persons living in abusive relationships based on research initially undertaken in the United States of America by Dr Lenore Walker. And it was Dr Byrne's evidence that that knowledge reveals a pattern of responses or reactions on the part of battered women, including those to which reference has already been made.” (at para 54)

    On appeal were included the following two grounds:

    1. Provocation: That the trial judge had erred in his summing up to the jury by: (a) referring to what an ordinary person in the accused's situation "would" have done, instead of what such a person "might" or "could" have done; (b) directing the jury at several points that provocation, to be made out, required a "specific triggering incident"; and (c) failing to make clear the connection between the evidence of "battered woman syndrome", admitted at the trial, and the law of provocation.
    2. Self-defence: That the trial judge had erred in: (a) refusing to admit hearsay evidence of what the appellant had told others about the violence inflicted upon her by the deceased and threats allegedly made by him to her; (b) the directions which he gave in relation to the relevance of the fact that the appellant, with Mr Albion, had on the morning on which the deceased was killed (or perhaps earlier) dug a grave (described as a "hole") to receive the body of the deceased; and (c) failing to make clear the connection between the evidence of "battered woman syndrome", admitted at the trial, and the law of self-defence.

    The High Court held: Appeal dismissed.

    Kirby J’s commentary

    “There is now a substantial quantity of writing in legal literature concerning battered woman syndrome (BWS). It exists both in Australia and overseas.” (para 159)

    “Although BWS does not enjoy universal support, there is considerable agreement that expert testimony about the general dynamics of abusive relationships is admissible if relevant to the issues in the trial and proved by a qualified expert. The greatest relevance of such evidence will usually concern the process of "traumatic bonding" which may occur in abusive relationships. This phenomenon has been observed in the circumstances to which evidence of BWS may relate.” (para 167)

    Literature referred to by Kirby J:

    • Lenore Walker, ‘The Battered Woman’ (1979) and ‘The Battered Woman Syndrome’ (1984)
    • Sheehy, Stubbs and Tolmie, "Defending Battered Woman on Trial: The Battered Woman Syndrome and its Limitations" (1992) 16 Criminal Law Journal 369;
    • Stubbs and Tolmie, "Race, Gender and the Battered Woman Syndrome: An Australian Case Study" (1995) 8 Canadian Journal of Women and the Law 122;
    • Beri, "Justice for Women Who Kill: A New Way?" (1997) 8 Australian Feminist Law Journal 113;
    • Australia, Committee of the Standing Committee of Attorneys-General, Discussion Paper, Model Criminal Code, Ch 5, Fatal Offences Against the Person, June 1998 at 89;
    • Edwards, "Battered women who kill" (1990) New Law Journal 1380; O'Donovan, "Law's Knowledge: The Judge, The Expert, The Battered Woman, and Her Syndrome" (1993) 20 Journal of Law and Society 427;
    • Wells, "Battered woman syndrome and defences to homicide: where now?" (1994) 14 Legal Studies 266;
    • Chan, "A Feminist Critique of Self-Defence and Provocation in Battered Women's Cases in England and Wales" (1994) 6 Women & Criminal Justice 39;
    • Griffith, "Battered Woman Syndrome: A Tool for Batterers?" (1995) 64 Fordham Law Review 141;
    • Shaffer, "The Battered Woman Syndrome Revisited: Some Complicating Thoughts Five Years After R v Lavallee" (1997) 47 University of Toronto Law Journal 1;
    • Evatt, Foreword to Graycar and Morgan, The Hidden Gender of Law (1990) at vii;
    • Other studies cited Scutt, Even in the Best of Homes -- Violence in the Family (1990) at 98, 109;
    • Simone, "`Kill(er) man was a Battered Wife' the application of Battered Woman Syndrome to Homosexual Defendants: The Queen v McEwen" (1997) 19 Sydney Law Review 230;
    • Heller, "Ill-founded outrage", The Times Literary Supplement, 13 August 1993 at 11 cited in Garcia v National Australia Bank (1998) 155 ALR 614 at 636 ; 72 ALJR 124;
    • Goodyear-Smith, "Re Battered Woman's Syndrome [1997] NZLJ 436-438" (1998) New Zealand Law Journal 39;
    • McDonald, "Battered Woman Syndrome" (1997) New Zealand Law Journal 436 at 437;
    • Budrikis, "Note on Hickey: The Problems with a Psychological Approach to Domestic Violence" (1993) 15 Sydney Law Review 365;
    • Stubbs and Tolmie, "Race, Gender, and the Battered Woman Syndrome: An Australian Case Study" (1995) 8 Canadian Journal of Women and the Law 122;
    • Faigman and Wright, "The Battered Woman Syndrome in the Age of Science" (1997) 39 Arizona Law Review 67 at 111-113;
    • Shaffer, "The Battered Woman Syndrome Revisited: Some Complicating Thoughts Five Years After R v Lavallee" (1997) 47 University of Toronto Law Journal 1 at 13-14, 25-33;
    • Schneider, "Describing and Changing: Women's Self-Defense Work and the Problem of Expert Testimony on Battering" (1986) 9 Women's Rights Law Reporter 195;
    • Freckelton, "Battered Woman Syndrome" (1992) 17 Alternative Law Journal 39;
    • "(Mis)Identifying Culture: Asian Women and the `Cultural Defense' " (1994) 17 Harvard Women's Law Journal 57 at 93;
    • Moore, "Battered Woman Syndrome: Selling the Shadow to Support the Substance" (1995) 38 Howard Law Journal 297;
    • Mahoney, "Legal Images of Battered Women: Redefining the Issue of Separation" (1991) 90 Michigan Law Review 1 at 42;
    • Yeo, "Resolving Gender Bias in Criminal Defences" (1993) 19 Monash University Law Review 104 at 111;
    • Manning, "Self Defence and Provocation: Implications for battered women who kill and for homosexual victims", NSW Parliamentary Library Research Service (Briefing Paper No 33/96), December 1996 at 19-20;
    • Victoria, Law Reform Commission, Homicide (Report No 40), (1991) at paras 164-8. For criticism, see Women's Coalition Against Family Violence, Blood on whose hands? (1994) at 117-18;
    • Australia, Committee of the Standing Committee of Attorneys-General, Discussion Paper, Model Criminal Code, Ch 5, Fatal Offences Against Person, June 1998, p 89;
    • Women’s Coalition Against Family Violence: Blood on Whose Hands? (1994) pp 117-118.

    Feminist commentary

    Neutral

    “Battered woman syndrome is often invoked in order to explain why the victim remained with her partner and failed to formally complain or complained only selectively. Together with some other psychological syndromes this form of evidence has been called 'counter-intuitive'. The author examines the recent High Court decision in Osland v. R (1998)159 ALR 170 within this framework. While noting the dynamics of the battering relationship, and the law's failure to accommodate that within the definitional confines of the defence of provocation and self-defence, the author also points to the pragmatism inherent in the High Court approach. The author concludes with a mention of the symbolism inherent in Justice Kirby's approach in Osland in particular. This unequivocally rejected violent responses to violent situations and called for non-violence as the hallmark of a civil society.” (Hocking 1999, pp.57)

    “The recent High Court decision of Osland is the only other Australian appeal case to have discussed the preliminary issue of whether BWS evidence should, in principle, be introduced. In that case, all five judges based their decision primarily on the application of the legal principles of ancillary liability to the facts of the case. Only four of the judges also considered the issue of BWS evidence, with Gaudron and Gummow JJ producing a joint judgment that otherwise dissented on

    the issue of ancillary liability.” (Stubbs and Tolmie 1999, p.723)

    “In its first consideration of what has been termed 'battered woman' or 'battered wife'  syndrome, all five members of the High Court expressed varying reservations about the relevance of the syndrome with respect to a defence to a murder charge. The Court held that battered woman syndrome is not a new and sustainable defence on its own, while accepting that it must be accepted that the syndrome is a proper matter for expert evidence.” (Hocking 1999, pp.59)

    Positive

    Osland was one of the first Australian decisions to attempt to spell out explicitly the connections in principle between BWS evidence and the legal defences of provocation and self-defence.” (Stubbs and Tolmie 1999, p.731)

    “Arguably the most forward looking judgment dealing with BWS evidence in Osland was delivered by Kirby J. After canvassing some of the controversies around the use of BWS evidence he nonetheless accepted that it was admissible...his discussion of BWS evidence appears to be consistent with the recognition in North America of the gendered application of the law on self-defence.” (Stubbs and Tolmie 1999, p.725)

    “[T]he courts have endorsed the concept of the 'slow-burn’ loss of self-control.” Author referring to Osland and Chhay. (Bradfield 2000, pp.22)

    “Only once in the entire history of the High Court of Australia has an 'all woman' team appeared: Osland v The Queen (2000) 173 AUR 173. Rendering it even more rare, the team was all female at both the appeal and leave to appeal hearings.” (Scutt 2001, pp.42)

    Negative

    “What is disturbing about the approach of Gaudron and Gummow JJ is that they appear to relate BWS evidence exclusively to the subjective, or modified subjective, components of the defences of provocation or self-defence, rather than to the objective components as well. For example, they do not suggest BWS evidence might explain why there could be reasonable grounds for the accused’s perception that she was under life-threatening danger and needed to resort lethal self-help, only why she might honestly have believed this to be the case. Likewise they do not suggest that such evidence explains how an ordinary person could have lost self-control in the circumstances for the purposes of the defence of provocation...This reading of their judgment suggests that BWS evidence assists the court in understanding the personal or idiosyncratic – the ‘subjective’ responses of battered women who suffer from the syndrome – rather than explaining the effect that circumstances of violence might have on the responses or reasonable women. If this is so, then their judgment represents a considerable narrowing of the interpretation of BWS offered by King CJ in Runjanjic and Kontinnen. It also represents a departure from the basis on which BWS was first developed and understood.”

    (Stubbs and Tolmie 1999, p.725)

    “[O]ne of Australia's most controversial "sleeping husband" cases, Osland v. Regina,' demonstrated the High Court's  unwillingness to provide strong authority for pre-emptive strikes. It also suggested the dangers of creating dichotomous images of the cold-blooded killer and the pitiable abuse victim with no satisfactory intermediate option between a murder verdict and an acquittal.”  (Ramsey 2010, p.62)

    “Australians' polarized views of the Osland case reflect efforts to assimilate complicated facts into a simpler narrative of what happened. Heather probably was neither an innocent, passive victim, nor a coldly calculating killer. Because her behaviour did not accord with the stereotypes that the criminal law, BWS theory, or cultural values surrounding intimate partner violence demand, her story had to be reshaped to fit a legal verdict. The murder conviction expressed (and the High Court affirmed) a distinction between "a self-defensive response to a grave danger which can only be understood in light of a history of abusive conduct and a response that simply involves a deliberate desire to exact revenge for past and potential-but unthreatened-future conduct." In reality, however, Heather's behaviour may have fallen between these understandings of why abuse victims kill. To the extent that she engaged in planning activity by digging the hole and using the sedatives, her conduct showed self-protectiveness, as well as anger and desperation. If she is an icon for anything, it may be a new form of mitigation that covers defensive killings in which the lethal act is deemed less justifiable than the emotions and beliefs prompting it. Such a partial defence would have given the Osland jury another option besides provocation, for which there was allegedly insufficient evidence of a triggering incident, and thus avoided an all-or-nothing choice between murder and completely exculpatory self-defence. Unfortunately, this type of middle ground was unavailable in Heather Osland's 1996 trial. Her conviction for murder in Victoria announced that her beliefs and actions qualified for neither exoneration nor mitigation, whereas James Ramage's did. It was this situation and others like it that Victoria's reformers sought to change.” (Ramsey 2010, p.63-64)

  • R v Lane [1998] QCA 167 (8 May 1998) | archive.sclqld.org.au
    Queensland Court of Appeal: Pincus JA, Derrington J and White J
    Assault occasioning bodily harm, whether to record a conviction.

    Summary

    This case is the appeal against the recording of a conviction. The appellant was convicted of one count of unlawful assault occasioning bodily harm. The trial Judge recorded a conviction and released her upon a recognisance of $1,000 to be of good behaviour for two years.

    The applicant was 41years of age at the time of the offence and without any prior convictions. She had a career in the public service in association with her de facto partner. For a number of years he subjected her to serious psychological and physical abuse. This had re-occurred on the night before the offence. The offence was committed while he was asleep. She hit him on the head with a heavy mortar bowl and when he awoke and lay dazed she attempted to strike him with the same object again.  Being in fear of his retribution she took a shotgun from her bedroom and then shot him in the stomach. There was then a struggle for the gun but the complainant weakened and let it go. He walked towards the shed where he kept firearms whereupon the appellant shot him in the back. The shooting charges resulted in an acquittal by the jury but she was convicted of the count in relation to the striking with the mortar bowl.

    Derrington J commented that the verdicts of the jury should be interpreted as finding beyond a reasonable doubt that the appellant had not any basis in self-defence for the first attack; but that in respect of the shooting there was a reasonable doubt as to whether the defence was available out of a reasonable fear of an attack of a serious nature by the complainant in the circumstances that then existed.

    The Court of Appeal held: Application for removal of record of conviction refused.

    Derrington J commentary

    “He [trial judge] made full allowance for the applicant's suffering at the hands of the complainant and for all other features favourable to her. With this approach I agree unreservedly.” (p. 2, at para 4)

  • R v King [1998] NSWSC 289 (13 August 1998) | austlii
    NSW Supreme Court: Studdert J
    Murder, manslaughter, provocation.

    Summary

    The accused pleaded not guilty to murder but guilty to manslaughter upon the presentation of an indictment charging her with the murder of her husband. The Crown accepted that plea in full discharge of the indictment on the basis that there may have been provocation.

    The accused had been married to the deceased for 9 years and been subject to domestic violence during that time. On the night of the deceased’s death, both of them had been drinking at an RSL. On the way home the deceased started verbally abusing the accused which didn’t end when they arrived home. Eventually, the deceased walked into the bedroom and the accused followed him and stabbed him once with a knife. She immediately called for help. The judge found the prisoner caused this death whilst acting under provocation and regarded the behaviour of the deceased towards the prisoner as constituting provocation which could cause an ordinary person to form an intention to inflict grievous bodily harm. Studdert J found the relevant provocation as having caused the prisoner to lose her self-control and to act to inflict the grievous bodily harm before she had the opportunity to regain her composure.

    However, Studdert J then proceeded to sentencing and held “I must have regard to the gravity of the offence viewed objectively. A human life has been taken and the courts have repeatedly emphasised that unlawful homicide is a very serious crime. I must also have regard to all the relevant purposes of sentencing identified in Veen [No 2] (1988) 164 CLR 465 at 476, namely ‘the protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform.’ In this case, I consider there is little prospect of the prisoner re-offending but retribution must be taken into account.” (p.9)

    The Supreme Court held: 6 years imprisonment with 3 years non-parole period.

    Studdert J commentary

    “It is relevant to have regard to the conduct of the deceased towards the prisoner not only on the day of his death but before that time. It is well settled that loss of self-control can develop after a lengthy period of abuse: see R v Chhay (1994) 72 A Crim R 1, and in particular the judgment of Gleeson CJ at 10-14. It is necessary to consider the cumulative effect of the conduct of the deceased upon the prisoner. It seems to me from the evidence which I accept that the prisoner endured much suffering by way of continuing mistreatment by the deceased over the years. The deceased treated the prisoner very badly indeed. The physical ill treatment was very serious in itself. But so too was the constant mistreatment by way of verbal abuse.” (p.7)

    “I have concluded that I should sentence the prisoner upon the basis that the cumulative effect of her earlier mistreatment contributed to her loss of self-control at the critical time as well as the relentless abuse by the deceased directed at the prisoner on the journey home from the club on 17 April 1996 and in the home thereafter. It seems to me that the level of provocation viewed in this way was great and that the level of the prisoner's criminality should be regarded as having been very substantially reduced by reason of such provocation.”(p.8)

  • R v Babsek [1998] QCA 116 (2 June 1998) | austlii
    (appeal against conviction – upheld – convicted at new trial.)
    Queensland Supreme Court: Davies JA, McPherson JA, Moynihan J
    Murder, admissibility of evidence.
    R v Babsek (1999) 108 A Crim R 141 | archive.sclqld.org.au
    McMurdo P, Pincus, Thomas JJ.
    Appeal against inadequate sentence – after retrial – upheld.

    Summary

    The respondent was tried and convicted of murder but her conviction was quashed on appeal due to issues with the admissibility of evidence at the trial such as evidence (prejudicial) of her history of violence towards the deceased and his application for a protection order from the Police (all heard by the jury).  The accused shot her partner in the head after she asked him to come back to her house with their son. The deceased had been trying to terminate the relationship and evidence was given of the accused’s violence towards him. At the first trial, the respondent gave evidence that she acted in self-defence.

    The Court of Appeal held:  the conviction quashed a new trial ordered.

    At her retrial in February 1999, Babsek did not give evidence and self-defence was not raised. The defence case in the address to the jury was that the respondent was guilty of manslaughter but did not intend to kill or do grievous bodily harm to the deceased. The jury returned a verdict of not guilty to murder but guilty to manslaughter. The jury's verdict was therefore consistent with the conclusion that the respondent pulled the trigger and caused the deceased’s death.

     Summary of appeal against inadequate sentence case

    The respondent was sentenced (at her retrial) to nine years imprisonment with a non- parole period of three years. The appellant, the Attorney-General of Queensland, claimed the sentence imposed was manifestly inadequate.

    The Court of Appeal held: sentence increased to 10 years, with no non-parole period given.

    * Question whether this is a BWS case because the evidence suggests that she was the violent partner not the deceased male.  However, the topic was raised by the defence at the first trial, but largely discounted and the case did not go to the jury on that basis and no issue of that kind was argued on appeal.

    Moynihan J commentary

    “Given the issues in the case, including intent, self-defence and provocation, evidence ‘throwing light on the relationship’ between the appellant and the deceased was admissible... Moreover, s132B of the Evidence Act 1977 made admissible ‘relevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed’.” (p.2)

    “It can nevertheless be accepted that the evidence, which seeks to explain why people do not leave a relationship with a violent partner and which suggests a heightened sensitivity on the part of the subject of the violence to prospective or threatened violence, was admissible... It was relevant to the issues of intent, ‘reasonable apprehension’ and ‘belief on reasonable ground’ raised by self-defence and to the evaluation of the deceased's conduct relied on as constituting provocation... The trial judge directed the jury to the effect that the evidence bore on the appellant's ‘heightened sensitivity to an impending assault’ and there is no complaint about this aspect of his direction.” (pp.2-3)

    Appeal against sentence

    McMurdo P, Pincus and Thomas JJ commentary

    “[I]t cannot be overemphasised that serious physical violence and death inflicted by one party on another in the course of the breakdown of a relationship will ordinarily result in a substantial term of imprisonment.” (p.148 at para.36)

    Feminist commentary

    Positive

    “(This) appeal has made clear that these circumstances include the full violent history of a relationship and that such circumstances, and their impacts, may be made intelligible to the fact finder through the admission of expert evidence. Accordingly, there is a compelling argument that the 'abusive relationship and all of the circumstances of the case' should, in any event, be a critical focus of attention in the assessment of a claim to self-defence in Queensland.” Authors refer to R v Babsek [1998] QCA 116 (2 June 1998)and MacKenzie. (Easteal and Hopkins 2010, pp.136)

    “In relation to self-defence, evidence of the history of the accused's relationship with her violent partner is relevant and admissible. This case-specific information about the accused's personal experience of violence can be used to inform the jury about her reality.” (Bradfield 2002, pp. 178)

2000 - 2014

The period from 2000 to 2014 saw a proliferation of law reform commission reports and legislative changes around Australian homicide law, largely in response to circumstances where battered women kill, or are killed by, their violent partner or ex-partner after years of abuse. These reforms have led to the abolition and reform of the provocation defence in most states and territories, the development of self-defence and the introduction, in some states, of special evidentiary provisions designed to ensure that the previous history of domestic and family violence is considered by courts. Despite the virtual disappearance of the language of Battered Woman Syndrome in Australian courts, psychologists and psychiatrists continue to be called on a regular basis to explain the context and effects of domestic abuse.

  • 2000 Northern Territory proposes law reform

    Proposed Law reform:

    Self-Defence and Provocation, October 2000

    Northern Territory Law Reform Committee:

    The Attorney General requested the NT Law Reform Committee to inquire into and report on “whether the partial defence of provocation should be amended to extend its operation to cover what is sometimes known as the ‘battered wife’ syndrome”. The Law Reform Committee’s report in 2000 recommended deleting the requirement in the defence for the offender to have “acted on the sudden and before there was time for his passion to cool”. It was also suggested that psychiatric evidence in respect of a history of abuse should be admitted in a consideration of provocation as it is possible that a battered wife could “become so dazed and humiliated as to lose self-control and kill her persecutor even if the killing does not take place immediately after an event of violence, threats or intimidation.” (p. 41)

    The NT Government did not act on these recommendations at the time.

    Consideration of feminist critique:

    While no feminist literature was cited in the report, the suggested repeal of the provisions was said to be in light of the observations of Kirby J in Osland, Gleeson J in Chhay, and Phillips CJ in the Lesbia Harford Oration, all of which base their reasoning in feminist principles.

  • R v MacKenzie [2000] QCA 324 (11 August 2000) | austlii
    Queensland Court of Appeal, McMurdo P, McPherson JA. Dutney J [unanimous reduction in sentence although McPherson J proposed longer term].

    Summary

    At trial the accused pleaded guilty to manslaughter on the basis of criminal negligence. The applicant was sentenced to 8 years imprisonment and non-parole period of 3 years.

    The accused was married to the deceased for 39 years, and was subjected to severe domestic violence over this time. The appeal case is that the sentence is manifestly excessive, and the accused should not have pleaded guilty in the first place, because her legal counsel did not advise her that self-defence was available to her.

    On the day of the killing, both the applicant and the deceased were under stress because they had recently sold their home and moved to a less expensive and far more basic rural home. The deceased forced unwelcome and unpleasant sexual contact on the applicant and later punched her (at least 3 times in the head). The accused then got a gun from the bedroom and pointed it in the deceased direction, she thought the gun was unloaded and as she was walking out, tripped, and it fired and killed the deceased. The accused’s claim that she tripped on the stairs immediately before the gun discharged was not disputed. Within seconds she phoned 000 for assistance, was immediately and genuinely distressed and remorseful, and pleaded guilty.

    The Court of Appeal found that the determination of an appropriate sentence in this case was difficult as the offence was one of criminal negligence and yet the applicant was a victim of serious and prolonged domestic violence.

    On appeal, it was submitted that because of this the applicant was denied the benefit of competent advice, and so was prevented from making an informed decision in her own interests about whether or not to plead guilty to manslaughter, or to take her chance at a trial on a charge of murder. Assuming that this would, if established, demonstrate the necessary element of "unfairness" in her entering the plea of guilty, or show that a miscarriage of justice has taken place, it was necessary to consider whether there was any basis in law on which the applicant could be said to have had a chance of outright acquittal of which she was deprived by being given and acting on incompetent advice.

    The Court of Appeal considered whether “battered wife syndrome” is in law material to an issue of self-defence on a charge of homicide. The Court also considered whether, if it is material, there was any evidence in this particular case capable of raising such an issue. The applicant had never said she was acting in self defence when she shot her husband, and there was little or no direct evidence from her on the subject.

    In the result, no miscarriage of justice has been shown to have resulted from the failure of the applicant's legal advisers to advise her to go to trial on a charge of murder, or in advising her as they did to plead guilty to manslaughter on the basis of criminal negligence.

    The Court of Appeal held: the application for leave to appeal against conviction dismissed. Application for leave to appeal against sentence granted. Appeal against sentence allowed by substituting a sentence of 5 years imprisonment and non-parole period of 12 months.

    McMurdo P commentary

    “An important issue for determination is what consideration, if any, the Court should give to the shocking history of domestic violence perpetrated upon the applicant by the deceased where the offence is one of criminal negligence.” (p.4, para 19)

    “Psychologist Penny Gordon, who interviewed the applicant on a number of occasions and carefully documented her family dynamics and the history of the abuse, noted that one of the impacts on the applicant of the long term abuse and violence in the relationship was that it contributed "to ineffective problem solving behaviour and a perception by [the applicant] of the narrowing of her options over time. A perception of narrowed options can often result in decisions made by the abused woman that from the outside look like poor judgment." (p.5, para 20)

    McPherson JA commentary

    “If the applicant's counsel and solicitor in advising her were acting under the impression that self defence was available only in response to an immediate physical threat to the person of the applicant, then they were mistaken about the law. Evidence of "battered wife's syndrome" of the kind that was available to the applicant and her legal advisers in this case is a proper matter for expert evidence. See Osland v R (1999) 73 ALJR 173, 185 col 2C, 206-207. It is capable of demonstrating "the heightened arousal or awareness of danger which may be experienced by battered women" (Gaudron, Gummow JJ, in Osland, at 185 col 1D), which may bear directly on, or be relevant to, a defence of either provocation or self defence (Kirby J, at 206-207).” (p.10, para 46)

    “In the many decisions in which s 271(2) has been considered, it seems to me that the authoritative view, and certainly the interpretation most favourable to someone (for present purposes, I will assume it is the applicant) relying on its provisions, is that the accused is entitled to be acquitted of a homicide charge if she believes on reasonable grounds that she cannot save herself from death or grievous bodily harm except by using life-threatening force to defend herself, irrespective of the consequences that may have for the life or health of her assailant.” (p.11, para 47)

    “For present purposes it may be assumed that, by reason of her husband's previous treatment of her, Mrs MacKenzie satisfied that requirement; that is, that at the time she approached her husband on the veranda with the gun in her hands, her state of mind was such that she honestly and reasonably believed facts that put her life, health or bodily integrity at risk of a further and life-threatening assault by her husband.” (p.11, para 49)

    “The fact of the abusive relationship is relevant to the sentence because in a case like this as with a case of diminished responsibility the deceased has, by his own conduct, significantly contributed to the fatal act. The seeking out of the weapon the negligent handling of which caused the death, is a predictable response to the deceased's abuse. The fact that here the killing was the result of negligent handling of a firearm the applicant believed was unloaded is a significant matter. In such a case the deterrent aspect does not carry quite the same importance as where the killing is the result of a willed act, albeit while the perpetrator is in a state of diminished responsibility. The absence of a willed act in my view enables the Court to take a more lenient view of the offence then might otherwise have been the case.” (p.15, para 67)

    Feminist Commentary

    Positive

    “The court stressed that it would be a mistake in law to believe that self-defence was only available in response to an immediate physical threat. These cases [also referring to Stjernqvist] suggest that some flexibility existed in relation to imminence in self-defence under section 271 of the Criminal Code (Qld) and that it may not necessarily have been as difficult for battered defendants to plead this defence as has otherwise been suggested.” (Guz and McMahon 2011, pp.91-92)

    “Appeal has made clear that these circumstances include the full violent history of a relationship and that such circumstances, and their impacts, may be made intelligible to the fact finder through the admission of expert evidence.  Accordingly, there is a compelling argument that the 'abusive relationship and all of the circumstances of the case' should, in any event, be a critical focus of attention in the assessment of a claim to self-defence in Queensland.” Authors referring to Babsek and MacKenzie. (Easteal and Hopkins 2010, pp.136)

  • R v Denney [2000] VSC 323 (4 August 2000) | austlii
    Victorian Supreme Court, Coldrey J
    Manslaughter, mitigation of sentence.

    Summary

    This was the sentencing case after trial and conviction of the accused for manslaughter.

    The accused was married to the deceased and suffered severe domestic violence over a long period of time. On the day of his death, he had raped her and assaulted her. He fell asleep and the accused shot him with a gun. She dumped his body in bushland which remained concealed for 13 years, until finally his body was found by bushwalkers, and she was charged with murder.

    At trial, the Crown showed that the accused fired the two fatal shots into the head of John Denney, with the intention of killing him, but the Crown had failed to exclude beyond reasonable doubt that she acted under the influence of provocation.

    The accused detailed the provocative conduct of her husband to investigating police and also in evidence before the court. Coldrey J commented that the jury’s verdict may be regarded as consistent with a substantial acceptance of her account.

    Coldrey J commented “At your trial, expert evidence was given by Dr Lester Walton, a forensic psychiatrist, as well as Mr Ian Joblin. Dr Walton proffered the view that you were suffering from a chronic depressive disorder and that your conduct in the context of your marriage relationship, fell within the spectrum of behaviour labelled ‘battered woman syndrome’. While Mr Joblin agreed with Dr Walton that you are chronically depressed, he was of the view that you did not fit the paradigm for battered woman syndrome. Nonetheless, he agreed with Dr Walton that abuse over time creates a state of ‘learned helplessness’ and that you were exhibiting it. Both experts pointed to the phenomena whereby victims conceal evidence of abuse so as not to aggravate the perpetrator of it. In Dr Walton's opinion you were not suffering from any psychosis but you have what he described as permanent psychological scarring requiring ongoing psychiatric treatment.” (p.4 at paras 30-31)

    The Supreme Court of Victoria held:

    Three years imprisonment with the whole of that sentence suspended for a period of thirty six months.

  • 2002 New South Wales law reform

    Law Reform:

    Reform of Crimes Act 1900 (NSW)

    See Crimes Amendment Self-defence Bill 2001

    Reintroduced:

    S 421 Self-defence – excessive force that inflicts death

    1. This section applies if:
      1. the person uses force that involves the intentional or reckless infliction of death, and
      2. the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary:
      3. defend himself or herself or another person, or
      4. to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.
    2. The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter.

    Consideration of Feminist Critique:

    According to the Explanatory Memorandum, the Bill was based on the Model Criminal Code, clause 313 which in its commentary does not mention any feminist justification for the modification.

  • 2003 Tasmanian law reform

    Law Reform:

    Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003, (Tas. Acts No. 15/2003).

    Removed the defence of provocation (s160) from the Criminal Code.

    For commentary on the effect of the reform see Bradfield (2003).

    Consideration of Feminist Critique:

    It was noted in the Second Reading Speech on Thursday 27 March 2003 by Mr Parkinson, the Deputy Leader at that time, that there was “some argument in legal circles that the defence of provocation is gender biased and unjust.  The suddenness element of the defence is more reflective of male patterns of aggressive behaviour ... Tasmania is being proactive by acting to remove this out‑of‑date and gender-biased defence.”

    No specific literature is cited in support of this proposition.

  • R v O'Brien [2003] NSWCCA 121 (6 May 2003) | austlii
    New South Wales Court of Criminal Appeal, Giles JA,  Dunford J Smart AJ [unanimous decision]
    Manslaughter of daughter (malnutrition)

    Summary

    This is an appeal against conviction and an application for leave to appeal against sentence O'Brien for the manslaughter of her daughter Kudaratilaal O'Brien who died of malnutrition in 2000.  She was sentenced to 5 years imprisonment with a non-parole period of 2 years.

    The accused gave evidence that she feared her husband who governed most of her actions and speech, that she had been subjected to extreme physical violence at times and there was also severe psychological and emotional abuse and restriction of personal liberties and freedoms. She had been isolated from friends and family, and it was fear of reprisal that prevented her from bringing this to the attention of the authorities. She said that when speaking to her husband after seeing Dr Webster, he said to her, "You're not taking her to hospital, I'll tell you that right now". The other evidence called in the defence case was that of Dr Olaf Nielssen, forensic psychiatrist. He did not find the appellant suffered any kind of psychiatric disorder but his opinion was that her situation fitted what is called the "battered wife syndrome" which is a state in which women who are subjected to severe abuse, particularly within a domestic relationship, form a kind of helplessness and inability to initiate action to leave that situation. He thought that her responses around the time of the baby's illness were characteristic of the kind of behaviour one would expect to see in a person with battered wife syndrome in that she accepted the decisions made by her husband despite having reservations about them. She was under her husband's control.

    On appeal it was submitted:

    1. The trial judge failed to direct the jury that the evidence of battered wives syndrome was relevant to the defence of duress.
    2. The trial judge failed to direct the jury as to how the evidence of battered wives syndrome might apply to their determination of whether the Crown had negatived duress.
    3. The trial judge's summing-up on the evidence of battered wives syndrome was inadequate.

    The Court of Appeal held: The trial judge had summed up the evidence of BWS and directed the jury correctly. Appeal dismissed.

  • R v Besim [2004] VSC 168 (17 February 2004) | austlii
    Victorian Supreme Court, Redlich, J.
    Manslaughter unlawful dangerous act, exclusion of evidence.
    R v Besim (No.2) (2004) VSC 169 (18 February 2004) | austlii
    Victorian Supreme Court, Redlich J
    Objective test dangerous act.

    Summary

    This case was about whether the Crown could exclude the evidence of the deceased’s violence to his first wife.

    The accused was charged with manslaughter by unlawful and dangerous act as she struck her husband, David Besim, on the head with a heavy vase fracturing his skull. The defence case is that she acted in self-defence in response to violence, and a threat of further violence from the deceased.

    Evidence of disposition of the victim that tends to advance the exculpation of the accused and which relates to an issue in the case cannot be excluded in the exercise of discretion on the ground that it prejudices the Crown or the deceased.

    The defence argued, inter alia, such evidence is said to make it more probable that the deceased acted in the violent manner described by the accused. In particular, the defence relies upon the fact that the deceased's former wife will testify that the deceased became more violent when she threatened to call the police. Evidence of an accused's past experiences of violence or knowledge of violence to others by the deceased may be relevant where self-defence or provocation is raised. It may bear upon the accused's state of mind and the reasonableness of their conduct.

    The Supreme Court held: Evidence admitted with careful direction to jury about how to use it.

    R v Besim (No.2) (2004) (Unreported)

    This case addressed whether the objective nature of the test for a dangerous act precludes any consideration of the accused's emotions and circumstances at the time of the act.

    Redlich J found in the affirmative for that proposition and stated “I will direct the jury in accordance with Holzer's case. As a consequence of the closing submission of Defence counsel, it will be necessary that I instruct the jury that the accused's emotions or state of mind or those that a reasonable person would have had in the circumstances in which the accused found herself are not relevant to the question whether the act was dangerous. I shall instruct the jury that whether the accused or a reasonable person in her position would have been so overwhelmed by emotions at the time of the act that they would not have adverted to whether the act was dangerous, is not a matter that they are to consider when making an objective assessment as to whether the act was dangerous.” (para 42)

    While we cannot access the final case, in the Victorian Law Reform Commission Defences to Homicide: Final Report, it states that she was acquitted (p.140).

  • 2004 Victoria proposes law reform

    Proposed Reform:

    Victorian Law Reform Commission, Defences to Homicide: Final Report (2004) 61, esp. recommendation No.6, 89-90.

    Key recommendations included the abolition of the defence of provocation, the reform of self-defence to embrace inevitability over immediacy and to firmly move away from proportionality, introduction of a form of excessive self-defence as a partial defence to murder, guidelines which allow the charging of manslaughter in the case of excessive self-defence being substantiated, and the introduction of a new family violence / ‘social framework’ evidence provision.

    Consideration of Feminist Critique:

    Provocation

    The defence of provocation is gender biased due to the very different circumstances in which it is raised for men and women. (Bradfield 2002, p. 14)

    The continued availability of provocation for men who have killed their female partners in response to jealousy or a desire to retain control may send an unacceptable message: that men’s violence against women is legitimate and excusable. (Kirkwood 2000, p. 209)

    It has “historically operated, and continues to operate, as a profoundly sexed and gendered excuse for men to kill their former or current partners.” (Tyson, Submission 31)

    “As men are more likely than women to respond to provocation instantaneously, the effect of retaining a defence that requires a sudden loss of self-control is seen as privileging men’s experiences of violence over women’s.” (Roundtable 4 December 2003; Submission 16)

    Self-Defence

    “According to those who work with domestic violence survivors many survivors are really exercising a form of ‘self-defence’ for much of the relationship – often, by remaining ‘passive’ in the face of physical emotional and other types of abuse ... One day some of these women choose a different kind of self-defence – attack. This is often a kind of self-preservation or final desperate act and does not always happen when there appears to be a present threat – as would usually happen in a ‘man-to-man combat’ situation.” (Office for Women 2000, p. 149)

    The three possible models suggested for self-defence were taken from feminist commentary: the ‘battered woman syndrome’ model ; the ‘self-preservation’ model (Beri 1997, p. 113); and the ‘coercive control’ model .

    It was found, based on many submissions from community legal centres focusing on feminist issues, that it was required that any leniency shown to women must be on the basis of legal principles, rather than mere sympathy. The defence as it is interpreted and applied should be reformulated so as to “incorporate the mental states that develop as a result of chronic and persistent violence and powerlessness”. (Submission 25)

    It may be inappropriate to follow the traditional understanding of self-defence in respect of family violence cases as the fear of serious injury experienced by a victim may be constant (Rathus 2002, p. 14)

    If an abused woman is required to wait to react until under immediate attack, this may increase the likelihood of her being killed. (Eber 1981, p. 928)

    It is very important that judges act to deter the jury from relying on stereotypes and assumptions about self-defence, those who are deserving of it, and the behaviour of abuse victims. (Bradfield 2002, pp. 226-231; Naylor 1990, p. 7)

    Furthermore, juries may similarly struggle to understand a defendant from an indigenous or different cultural background and rely on stereotypes of such cultures. (Stubbs and Tolmie 1999, p. 748)

    Excessive Self-Defence

    This defence was seen as a possible ‘safety net’ for women who kill in response to family violence. (Discussed in preceding discussions: Roundtable 24 February 2004; Forum 5 December 2003)

    However, other advocates on behalf of women cautioned against the idea that the actions of a person who honestly believes their life is in danger could be considered as ‘excessive’ and argued that it may result in convictions for manslaughter for women and acquittals for men. (The Federation of Community Legal Centres’ Violence Against Women and Children Working Group, Submission 16)

    “Plea bargaining may spare women the trauma of the criminal process but does not necessarily result in a more favourable outcome. It also diminishes opportunities for the legal interpretation and application of self-defence in ways consistent with the life circumstances faced by some battered women who use legal self-help to protect their lives or physical integrity (or that of their children).” (Stubbs and Tolmie 2004, p. 8)

    The issue of plea bargaining is particularly an issue for indigenous women and women from other cultures. (Stubbs and Tolmie 2004, pp. 10-11)

    Evidence

    “… the key for the development of self-defence is an acceptance and comprehension of what it must really be like to live in a situation of ongoing violence.” (Bradfield, Submission 17).

    Jurors may in particular require guidance on why the abuse victim stayed in the relationship. (Reddy et al 1997, p. 141)

  • 2005 Victorian law reform

    Crimes (Homicide) Act 2005

    Key reforms:

    s3B: Provocation no longer partial defence to murder.

    s9AD Introduction of offence of Defensive Homicide:

    A person who, by his or her conduct, kills  another person in circumstances that, but for section 9AC, would constitute murder, is  guilty of an indictable offence (defensive  homicide) and liable to level 3 imprisonment  (20 years maximum) if he or she did not  have reasonable grounds for the belief referred to in that section.

    S9AH Introduction of ‘Family Violence’ Evidence provision:

    1. Without limiting section 9AC, 9AD or 9AE, for the purposes of murder, defensive homicide or manslaughter, in circumstances where family violence is alleged a person may believe, and may have reasonable grounds for believing, that his or her conduct is necessary—
      1. to defend himself or herself or another  person; or
      2. to prevent or terminate the unlawful  deprivation of his or her liberty or the liberty of  another person— even if—
      3. he or she is responding to a harm that is  not immediate; or
      4. his or her response involves the use of  force in excess of the force involved in the harm or threatened harm.
    2. Without limiting the evidence that may be adduced, in circumstances where family violence is alleged evidence of a kind referred to in sub-section
    3. maybe relevant in determining whether—
      1. a person has carried out conduct while  believing it to be necessary for a purpose referred to in sub-section (1)(a)  or (b); or
      2. a person had reasonable grounds for a  belief held by him or her that conduct is necessary for a purpose referred to in sub-section (1)(a) or (b); or
      3. a person has carried out conduct under duress

    Consideration of Feminist Critique:

    No feminist critique is cited as the basis for the reforms in the Explanatory Memorandum but these reforms arise directly out of the Victorian Law Reform Commission, Defences to Homicide: Final Report (2004) which was firmly rooted in these issues.

  • 2006 Northern Territory law reform

    Criminal Reform Amendment Act (No. 2) 2006 (NT)

    Key reforms:

    s 158      Trial for murder – partial defence of provocation

    (4) A defence of provocation may arise regardless of whether the conduct of the deceased occurred immediately before the conduct causing death or at an earlier time. [...]

    (6) For deciding whether the conduct causing death occurred under provocation, there is no rule of law that provocation is negatived if:

    (a) there was not a reasonable proportion between the conduct causing death and the conduct of the deceased that induced the conduct causing death; or

    (b) the conduct causing death did not occur suddenly; or

    (c) the conduct causing death occurred with an intent to take life or cause serious harm.

    Consideration of feminist critique:

    The Attorney-General states in the Second Reading Speech on 31 August 2006 that the reforms were in response to criticism that the previous requirement that the defendant acted on the sudden “made the defence unavailable in cases where there has been a history of serious abuse inflicted on the defendant which ultimately leads them into attacking their abuser. This is the situation in what is commonly referred to as ‘battered women cases’.”

    However, there is no specific feminist literature cited.

  • R v Russell [2006] NSWSC 722 (21 July 2002) | austlii
    New South Wales Supreme Court, Newman AJ
    Manslaughter, sentencing mitigation.

    Summary

    This was a case of sentencing the accused for the manslaughter of her de facto partner. She was indicted on a charge of murder, however, the Crown accepted her plea of manslaughter in full satisfaction of the indictment.

    The basis of the Crown accepting the prisoner's plea was the Crown accepted that it could not negate that the prisoner had been provoked within the ambit of that concept as contained in s 23 of the Crimes Act 1900. On the other hand, it is contended on behalf of the prisoner that it should not find that this is so, but that the deceased died as a result of the prisoner's unlawful and dangerous act.

    The accused and the deceased were in a domestic relationship characterized by alcohol abuse and violence, such violence occurring mostly when the deceased was inebriated. On the night of the deceased’s death the deceased approached the offender and struck her whilst she was still on the phone. The offender dropped the phone but her daughter heard the offender was screaming, "Please don't Jeff, no more".

    The deceased took a knife and flashed it in the face of the offender and said "I'll kill you stone dead". At some stage the deceased put the knife down.

    The offender took a knife from nearby. The deceased screamed at the offender, "stab me you bitch, you have not got the balls." The deceased continued to yell and scream. He shouted; "go on, do it, stab me." She stabbed him once on the chest. At the hearing psychiatrists gave evidence of the extreme nature of the violence she had experienced from him. However, Newman AJ distinguished the case of R v Roberts and held “The concept of battered woman syndrome is a factor to be taken into account by way of mitigation not by way of exculpation.”

    The Supreme Court held: Sentence 6 years and non-parole period of 3 years.

  • BLM v RWS [2006] QSC 139 | archive.sclqld.org.au
    Queensland Supreme Court, Mackenzie, J.
    Property dispute after relationship dissolved.
    BLM v RWS [2006] QCA 528 | austlii
    Queensland Court of Appeal
    Keane JA, White J and Philip McMurdo J

    Summary

    This was a property dispute between the parties whose relationship had dissolved. The woman raised allegations of domestic violence in the relationship, contributing to psychological damage. The Judge accepted there had been violence perpetrated against her and said “At most, the evidence accepted in the paragraphs above tends to provide slight support for the other evidence, which I accept, pointing to domestic violence in the course of the relationship.” The Judge then went on to discuss the property division between the couple. (para 30)

    ‘The issue of domestic violence has been analysed above. While the full extent of actual physical violence was in my view difficult to gauge, the evidence was sufficient to convince me that there was physical violence, and also verbal abuse, of a level that made the applicant’s contribution to the homemaking and parenting role more onerous. For that reason some allowance in her favour will be made in the final assessment.’ (para 85)

    Mackenzie J commentary

    “‘[B]attered woman syndrome’ is a collection of signs and symptoms rather than a psychiatric diagnosis. Physical abuse is a common factor but constant verbal abuse and demeaning and denigrating remarks can cause it without physical violence. Typically the woman is persuaded to enter the relationship by a person who appears charming but after a period the abusive behavior commences. Women involved in that situation typically experience difficulty in leaving the relationship. They rarely openly reveal the nature of the problem to a medical practitioner unless they have real trust in the doctor notwithstanding that they may display signs of injury caused by physical abuse.” (para 26)

    The appeal did not relate to the trial judge’s conclusions in relation to the impact of domestic violence on the property issue.

  • R v Elias [2007] VSCA 125 (19 June 2007) | austlii
    Victorian Court of Appeal, Nettle, Ashley, and Redlich JJA [unanimous decision]
    Theft, appeal against sentence.

    Summary

    The appellant pleaded guilty and was sentenced to 20 months imprisonment with a non-parole period of 12 months for 19 counts of theft committed over a period exceeding three and a half years. This case was an appeal against excessive sentence.

    The appellant was an accountant and worked for a insolvency/reconstruction business. Over that period she re-diverted bankruptcy monies that were supposed to go to creditors to herself. In the time that she worked at the business before she was married she did not steal, however, when she married her husband she was subjected to physical, sexual and psychological abuse by him. She was constantly told she didn’t look good enough, so the money she stole went on approving how she dressed etc.

    The case on appeal was whether the sentence was manifestly excessive and whether a suspended sentence was appropriate due to “Impaired mental functioning” attributable to marital abuse and battered woman syndrome. The gist of the submission advanced for the appellant was that the learned sentencing judge had accepted evidence that the appellant’s offending behaviour was symptomatic of “battered woman syndrome” from which she had suffered at pertinent times. In sentencing the appellant, however, his Honour had referred only to the ameliorating impact of the condition upon the significance of general deterrence in the sentencing process. The case was conducted on the assumption that the appellant’s “feelings of learned helplessness” – if the judge accepted Mr Joblin’s evidence – could call the Tsiaras principles into play.

    On appeal, counsel for the appellant contended that the Verdins restatement of principle had application. Counsel for the Crown accepted that Verdins could apply, but submitted that this was “not a strong situation”. The Court held: the existence and quality of any impairment of the appellant’s mental functioning was essentially left a blank canvas on the plea. Mr Joblin’s evidence was very general, and he was not cross-examined in any depth.

    Concerning the appellant’s mental state at the time of offending, the evidence, which his Honour in effect accepted, because he accepted the evidence of the psychologist, Mr Joblin, found it was common ground before us that the syndrome from which the appellant allegedly suffered at pertinent times had not previously been relied upon in this State as bringing Tsiaras/Verdins principles into play in respect of offences of the present kind. Indeed, counsel for the Crown observed that hitherto the battered woman/learned helplessness situation had typically been raised in homicide cases.

    The Court of Appeal held: Appeal dismissed.

    Ashley J commentary

    “What I have just said does not mean that Verdins principles could not apply in a case where learned helplessness is given as the explanation for the commission of, say, property offences. My caveat is rather that the assumptions – factual and legal – upon which the present case was conducted must be understood as being no more than that, their validity or otherwise remaining a matter for elucidation in the future.” (p.3 at para 14)

  • 2007 Western Australia proposes law reform

    Proposed law reform:

    Review of the Law of Homicide: Final Report (2007) 97 Law Reform Commission of Western Australia

    • Recommendation 22, 23: simplifying and clarifying self-defence to remove the specific requirements of imminence, proportionality, and the duty of retreat and to introduce jury directions to ensure these elements are not applied traditionally.
    • Recommendation 26: introducing partial defence of excessive self-defence.
    • Recommendation 29: repealing the defence of provocation.
    • Recommendation 43: abolishing mandatory life for murder.

    Consideration of feminist critique:

    Recommendations 22 and 23:

    The requirements of self-defence are a “product of the historical context in which they arose”; in particular, the fact that homicides are more often committed by men. (Manning 1996, p. 6)

    The requirements of self-defence have “traditionally reflected male standards of behaviour and male responses.” (Bradfield 1998, p. 71)

    In order to overcome the traditional conception of self-defence, ie a ‘one-off physical attack’, it is suggested that evidence of battered women’s syndrome be presented to the courts in order to allow the jury to understand the women’s circumstances and properly assess the reasonableness of the women’s actions. (Tarrant 2006, p. 16)

    The concept of imminence is a barrier for women relying on self-defence because women do not necessarily respond to an imminent attack as to do so may increase the danger. (Tarrant 1990, p. 597)

    The requirement for an assault was abolished based on the opinions of Rathus 2002 and Tarrant 2006.

    Recommendation 26

    “It has been suggested that the introduction of excessive self-defence may disadvantage women who kill in response to domestic violence because the jury may convict an accused of manslaughter in circumstances when the accused should have been acquitted by reason of self-defence.” (Yeo 2003, p. 63)

    Excessive self-defence should be introduced if the partial defence of provocation is abolished. (Tarrant 2006, p. 40)

    Recommendation 43

    Mandatory life imprisonment may prejudice victims of domestic violence who kill their abusive partners. The threat of life imprisonment may be so daunting that the only choice is to plead guilty to manslaughter even though the circumstances strongly support self-defence. (Sheehy 2001, p. 553)

  • 2008 Western Australian law reform

    Law Reform:

    Criminal Code 1913 (WA)

    Section 248 Self-defence - (Commenced 1 August 2008)

    1. In this section —  harmful act means an act that is an element of an offence under this Part other than Chapter XXXV.
    2. A harmful act done by a person is lawful if the act is done in self-defence under subsection (4).
    3. If —
      1. a person unlawfully kills another person in circumstances which, but for this section, would constitute murder; and
      2. the person’s act that causes the other person’s death would be an act done in self-defence under subsection (4) but for the fact that the act is not a reasonable response by the person in the circumstances as the person believes them to be, the person is guilty of manslaughter and not murder.
    4. A person’s harmful act is done in self-defence if —
      1. the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
      2. the person’s harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
      3. there are reasonable grounds for those beliefs.
    5. A person’s harmful act is not done in self-defence if it is done to defend the person or another person from a harmful act that is lawful.
    6. For the purposes of subsection (5), a harmful act is not lawful merely because the person doing it is not criminally responsible for it.

    Consideration of feminist critique:

    “In situations of domestic violence there are many things about the response of the woman against whom violence is perpetrated that makes it difficult to fit into the customary or traditional defence of self-defence.” (Hansard, Tuesday, 6 May 2008, p.2437)

  • 2009 Queensland proposes law reform

    Proposed law reform:

    Geraldine Mackenzie and Eric Colvin Homicide In Abusive Relationships: A Report On Defences. Prepared for the Attorney-General and Minister for Industrial Relations 6 July 2009.

    This report recommended the introduction of a separate, partial defence to murder based on the principles of self-defence available to victims of seriously abusive relationships who kill in fear and desperation believing their actions to be necessary for self-defence.

    The report concluded that the literature considered showed that abuse victims’ perceptions are affected and often result in higher levels of fear and desperation and the feeling that the abuser’s death is the ‘only way out’.

    As precursors to this Report, [after the Sebo case and public outrage a number of reports followed from the Qld Government ]:

    • Queensland Law Reform Commission, A Review of the Defence of Provocation: Discussion Paper (2008);
    • Queensland Law Reform Commission, A Review of the Defence of Accident: Discussion Paper (2008).

    Consideration of feminist critique:

    The vast majority of all submissions to this report from feminist academics such as Rathus supported the creation of a partial defence to murder for cases where abuse victims who killed their abusers would be unable to rely on the complete defence of self-defence. The majority of all submissions also supported the creation of a separate defence rather than the expansion of self-defence to prevent the legal protection of unmeritorious defendants.

    The understanding of an abusive relationship which gave rise to protection under these provisions was limited to one where there is an element of control exerted by the perpetrator of the abuse, based on the submissions of the Women’s Legal Service, Heather Douglas and the Queensland Centre for Domestic and Family Violence Research.

    It was noted that feelings of fear and desperation were said to be commonplace amongst victims of abuse. (Dobash and Dobash 2004, p. 340 and Barnett 2001, p. 10)

    The Report found that victims may also be motivated by anger and the desire for retaliation or retribution (Swan et al 2008, p. 309) but the existence of this motive would not negate feelings of fear. (Dobash and Dobash 2004, p. 324)

    It was noted in the report that feminist academics have noted the limitations of the BWS theory as it suggests some form of psychological dysfunction when in reality, the victim is responding in a rational way to the danger. (Sheehy, Stubbs and Tolmie 1992, p.384-5)

    This issue was also noted by the Women’s Legal Service in their submission.

    It was noted that victims of violence or abuse often have heightened awareness of potential harm. (Faigman and Wright 1997, p. 73; Blackman 1986, p. 229)

    It therefore may be difficult for the court to identify the threat that triggered the act of the victim when there is no obvious imminent threat. (Bradfield 2002, 178)

    Victims of violence may perceive a lack of options. (Gray and Kim 2008, p. 1465)

    This is especially true given the risks of injury or death amongst women who have left their abusive intimate partners. (Rathus 2002, 4)

  • 2010 Queensland law reform

    Law Reform:

    Criminal Code Act 1899

    Section 304B - (Commenced 10 February 2010)

    Killing for preservation in an abusive domestic relationship

    1. A person who unlawfully kills another (the deceased) under circumstances that, but for the provisions of this section, would constitute murder, is guilty of manslaughter only, if—
      1. the deceased has committed acts of serious domestic violence against the person in the course of an abusive domestic relationship; and
      2. the person believes that it is necessary for the person’s preservation from death or grievous bodily harm to do the act or make the omission that causes the death; and
      3. the person has reasonable grounds for the belief having regard to the abusive domestic relationship and all the circumstances of the case.
    2. An abusive domestic relationship is a domestic relationship existing between 2 persons in which there is a history of acts of serious domestic violence committed by either person against the other.
    3. A history of acts of serious domestic violence may include acts that appear minor or trivial when considered in isolation.
    4. Subsection (1) may apply even if the act or omission causing the death (the response) was done or made in response to a particular act of domestic violence committed by the deceased that would not, if the history of acts of serious domestic violence were  disregarded, warrant the response.
    5. Subsection (1)(a) may apply even if the person has sometimes committed acts of domestic violence in the relationship.
    6. For subsection (1)(c), without limiting the circumstances to which regard may be had for the purposes of the subsection, those circumstances include acts of the deceased that were not acts of domestic violence.
    7. In this section— domestic violence see the Domestic and Family Violence Protection Act 2012, section 8.

    Consideration of feminist critique:

    This law reform springs from the 2009 Bond Report which based its recommendations on feminist theory.

  • R v Falls (3 June 2010)
    Queensland Supreme Court,  Applegarth J.
    Murder, self-defence.

    Summary

    In May 2006, Susan Falls killed her husband, Rodney Falls. Susan and Rodney had known each other since they were teenagers and had married in 1987. They had four children together. In her testimony she graphically recounted numerous injuries; including being burned with an oxywelder and on another occasions being trapped in the roof of the house. On occasion Rodney became so angry that he had beaten nine of the family’s pet dogs to death, he was relentlessly controlling, placing her on time limits to run errands, calling her at early hours of the morning for a lift home and often raping her. Rodney told her that if she ever left he would kill her or harm the ones she loved. Susan had made a number of statements to police about Rodney’s violence during the relationship and had tried to leave. On one occasion police assisted her to leave Queensland but Rodney found her so she returned, fearful of what he would do to her family. In the weeks preceding the killing the violence escalated and Rodney threatened to kill one of the children. He created a lottery and demanded she choose a piece of paper. Susan selected a paper on which was written the name of her youngest son; she assumed Rodney would kill him. In the days before she killed him, Rodney had punched Susan in the chest with such force that it was painful to cough or sneeze. Susan was very small compared to Rodney; his thigh was bigger than her waist and this discrepancy in size was emphasised in the trial as a reason why she used a gun. Ultimately Susan laced her husband’s evening meal with crushed Temazepam tablets and shot him twice as he dozed in a chair. She was assisted by others in disposing of the body. Justice Applegarth directed the jury on both the preservation defence and self-defence and she was acquitted of murder on the basis of self-defence.

    Feminist Commentary

    Positive

    “[I]n the Falls case a decidedly welcome approach was taken to the legal analysis of 'assault' in this first element in Queensland self-defence law." (Edgely and Marchetti 2012, p.136)

    “Applegarth J emphasised the fact that in considering the application of section 304B, the jury needed to take into account all of the circumstances of the relationship, not only the acts that would constitute acts of domestic violence. Evidence of battered woman syndrome, although not a  psychological disorder, was relevant to Susan's mental state and 'whether she exhibited hyperarousal and other symptoms that are recognised in such cases'. It was, therefore clear that, had the jury had any doubts about whether Susan had acted in defence of herself and/or her family against an impending assault that they could easily have resorted to the new abusive domestic relationships defence.” (Edgely and Marchetti 2012, p.136)

    “His summing up on self-defence explained to the jury that Susan’s actions must be considered in light of her experience of living in an abusive relationship. In understanding this, the jury could draw on the expert evidence as well as other evidence. These directions underscore the potential for the application of self-defence in the context of killings within an abusive relationship in Queensland and suggest that the preservation defence may have a very narrow application. It may be useful to amend the self-defence notes in the Supreme and District Courts Benchbook (2012) which provides guidance to judges to reflect Applegarth J’s approach.” (Douglas 2012, pp.577)

    “As the first case to deal with self-defence in the shadow of the new preservation defence, Applegarth J’s summing up in R v Falls (2010) was particularly significant. This first part of his summing up confronted two of the key problems associated with battered women in Queensland attempting to apply self-defence to their circumstances:  identification of a specific assault and the imminence of further assault or danger (Bradfield, 2002: 178). Applegarth J read the definition of assault (s245 QCC) to the jury and, referring to the cases of R v Secretary (1996) and R v Mackenzie (2000) he emphasised that a continuing threat, where there is a present ability to carry out the threat, is an assault for the purposes of triggering a defensive response.” (Douglas 2012, pp.576)

    Negative

    “As has been argued above, the application of Secretary in Queensland in the Falls case has given judges a new way to think about the 'present apparent  ability' requirement, but some kind of specific assault (or as was evident in Falls' case, some kind of continuing threat) is still required prior to the killing. Women who kill in the absence of a precipitating assault must resort to the abusive domestic relationships defence and will face a manslaughter conviction.” (Edgely and Marchetti 2012, pp.170-171)

  • 2011 Queensland law reform

    Law reform:

    Criminal Code Act 1899

    Section 304

    Killing on provocation…

    (3) Also, subsection (1) does not apply, other than in circumstances of a most extreme and exceptional character, if—
      (a) a domestic relationship exists between 2 persons; and
      (b) one person unlawfully kills the other person (the deceased); and
      (c) the sudden provocation is based on anything done by the deceased or anything the person believes the deceased has done—
        (i) to end the relationship; or
        (ii) to change the nature of the relationship; or
        (iii) to indicate in any way that the relationship may, should or will end, or that there may, should or will be a change to the nature of the relationship.
    (4) For subsection (3)(a), despite the Domestic and Family Violence Protection Act 2012, section 18(6), a domestic relationship includes a relationship in which 2 persons date or dated each other on a number of occasions.
    (5) Subsection (3)(c)(i) applies even if the relationship has ended before the sudden provocation and killing happens.
    (6) For proof of circumstances of a most extreme and exceptional character mentioned in subsection (2) or (3) regard may be had to any history of violence that is relevant in all the circumstances.
    (7) On a charge of murder, it is for the defence to prove that the person charged is, under this section, liable to be convicted of manslaughter only changes to the partial defence of provocation (section 304, QCC).

    Consideration of feminist critique:

    The reform here followed the report by the Queensland Law Reform Commission which, on consultation with feminist stakeholders, found that the defence as it stood benefitted men who kill their intimate partners in response to infidelity, insults, or expression of a desire to end the relationship. (Queensland Law Reform Commission, A Review of the Excuse of Accident and the Defence of Provocation: Report (2008), p. 225)

    “The amendments remove insults and statements about relationships from the scope of the defence; recognise a person’s right to assert their personal or sexual autonomy; and will reduce the scope of the defence being available to those who kill out of sexual possessiveness or jealousy.” (Explanatory Memorandum, p. 3)

  • R v Ney (2011) QSC (Unreported, 8 March 2011)
    Queensland Supreme Court, Dick AJ
    Manslaughter, diminished responsibility.

    “In 2007 Emma Louise Ney killed her partner, Graham Haynes. She struck Haynes’ head and face with an axe. Haynes was hospitalised and died two days later. Initially charged with murder when she began her trial in 2010, she pleaded not guilty on the basis of self-defence or that she was guilty of manslaughter pursuant to the preservation defence. The defence lawyer, on opening the case, told the jury that Ney had experienced demeaning and humiliating violence and abuse at the hands of the deceased. Counsel said that Haynes had assaulted Ney on the night she killed him. Defence counsel told the jury that Ney just wanted the abuse to stop but she believed that if she didn’t get the axe, Haynes would kill her. On day six, of a proposed two-week trial, the jury were discharged. According to newspaper reports, jury deliberations had been disclosed to someone not on the jury panel. The matter was returned to court in March 2011 and a plea of guilty to manslaughter, based on diminished responsibility (s304AQCC), was accepted (R v Ney, 2011: 6). Two expert reports identified Ney’s alcohol and substance abuse and multiple traumas she suffered in a series of violent relationships. While Dick AJ was not confident that all the violence Ney described was a reality, she was prepared to act on the basis that Ney’s perception was that Haynes was violent to her (R v Ney, 2011, p.2). Ney was sentenced to serve nine years imprisonment with a non-parole period of three years. (see Douglas 2012, pp.374-375)

    Feminist Commentary:

    Positive

    “Although Ney ultimately negotiated a plea to manslaughter on the basis of diminished responsibility, in sentencing Justice Dick quoted from the expert psychiatrist’s report to understand why Ney was unable to leave the abusive relationship (R v Ney, 2011: 4). This evidence mitigated penalty (R v Ney, 2011: 10). ...These cases suggest that judges increasingly accept that expert evidence is relevant in understanding the circumstances in which battered women kill their abuser.” (Douglas 2012, pp.576)

  • Kells v R (2013) VSCA 7 (7 February 2013) | austlii
    Victorian Court of Appeal
    Manslaughter, sentence appeal, Buchanan and Tate JJA and T Forrest AJA.
    R v Kells [2011] VSC 679 (9 December 2011) | austlii
    Victorian Supreme Court, Macaulay J.
    Murder, manslaughter

    Summary

    The accused was on trial for murdering her partner by stabbing him with a knife. The defence contended the Court should give the jury a direction invoking the family violence provision in s 9AH of the Crimes Act 1958 (Vic). That provision somewhat widens the scope for the accused's exculpatory belief in the necessity to defend herself, or the scope of the reasonable grounds for having that belief, in circumstances where it applies.

    The Crown says Kells intentionally killed Pye by stabbing him to the heart with a kitchen knife after a long night of aggressive and erratic behaviour on her part; when angry and frustrated about Pye having stolen her money and mobile phones; and with a known tendency to resort to weapons in confrontations with domestic partners.

    The defence says Pye was physically assaulting Kells just before the incident; then disappeared into a bedroom; Kells armed herself with a knife fearing further assault; and, when Pye unexpectedly ran at her from the bedroom, she thrust at him with the knife in self-defence, killing him.

    Central to the divide between the Crown and defence, and likely to assist the jury in determining their verdicts on intent and self-defence, is the question of who was the real aggressor on the morning Pye was killed; was it Pye or was it Kells?

    Macaulay J found there was sufficient evidence before the jury for that conclusion to be open to them. Whether they draw it or not is a matter for them.

    The Supreme Court held: proceed to direct the jury on the application of s 9AH.

    R v Kells [2012] VSC 53

    The accused was charged with murder but jury found her guilty of manslaughter. Accused claimed she acted in self-defence.

    The Supreme Court held: Sentence 8 years and non-parole period of 5 years.

    Macaulay J commentary

    “It seems to me that the logic and evident purpose of the section comprehends the possibility that either or both parties in a violent domestic relationship could be subject to that vulnerable state of mind, borne of chronic abuse, that merits the more lenient approach of the section to self-defence. Who takes the benefit of the section would, of course, depend upon which of the parties committed the act on the other attracting the homicide charge.  Accordingly, I am not persuaded by the Crown's argument that the facts of the case do not potentially enliven s 9AH.” (paras 22-23)

    Feminist commentary

    Negative

    ‘An understanding of the broader social context of gender-based inequality, as well as an acknowledgement of the size and strength disparities between men and women, is critical in recognising the impact of violence in intimate relationships. In the case of Jade Kells, regardless of whether the previous violence in the relationship was mutual or not, the fact remains that, based on Dean Pye’s prior violence and abuse, Jade Kells had reason to fear being harmed by him as he came towards her. Even if he were unarmed, his greater size may have meant that he posed a danger to her. She told police that earlier that day he had attempted to choke her and had pushed her against a wall. However, her reaction by stabbing him was determined by Justice Macaulay when sentencing to be ‘out of any reasonable proportion to that threat’ posed by Pye (R v Kells[2012] VSC 53, para 14).’ Kirkwood et al 2013 29-33

  • Black v R (2012) VSCA 75 (26 April 2012) | austlii
    Victorian Court of Appeal, Buchanan and Bongiorno JJA and Hollingworth AJA (concurring)
    Defensive homicide, sentence appeal, consideration of violence.
    R v Black [2011] VSC 152 (12 April 2011) | austlii
    Victorian Supreme Court, Curtain J.
    Defensive homicide.

    Summary

    The accused pleaded guilty to defensive homicide.

    On the afternoon of Friday 30 October 2009, the accused was at home with the deceased, her de facto husband, Wayne Clarke. Her son, at that time was also living at that address. On that morning, she had returned from her nightshift work as a machinist at Godfrey Hirst, and together, she and the deceased went shopping and then to a hotel and drank alcohol. After they returned home, an argument ensued over Mr Clarke not wanting to go to his work later that night. During the course of the argument, which continued over a period of time, Mr Clarke made reference to her children and, in particular, to her son, which it appears exacerbated the argument. At this stage, she moved into the kitchen and Mr Clarke followed her. As it appears from the photos, the kitchen is a small U-shaped area and the argument continued, with Mr Clarke coming up to her and sticking his chest out and in that way pinning her in the corner of the kitchen. The accused told the police in her record of interview that Mr Clarke liked to stick his chest out "because he's a lot taller than me". She told Mr Clarke that he was pushing it too far, and as he had you pinned in the corner of the kitchen, he was jabbing you in the body. She then grabbed a kitchen knife, however Mr Clarke continued to corner her and, and in those circumstances she stabbed him twice to the left chest.

    Justice Curtain noted “In these circumstances, where the family violence was limited to threats, intimidation, harassment, jabbing and prodding as it was on this occasion, the Crown contend, and again it is acknowledged by your plea, that the belief that the knife could have been turned on you or that you had to get him first, or that you yourself were at risk of really serious harm if you did not act was not based on reasonable grounds.”

    The Supreme Court held: Sentenced to 9 years with a non-parole period of 6 years.

    Curtain J commentary

    “You were initially presented on a charge of murder, but the Crown has accepted your plea to the count of defensive homicide on the basis that you admit that you killed Wayne Clarke in the belief that it was necessary to carry out that conduct in order to defend yourself from the infliction of death or really serious injury in circumstances where such belief was not based on reasonable grounds. The Crown did not dispute that you have been subjected to ongoing harassment and intimidation which, as such, would come within the definition of "family violence" pursuant to s 9AH of the Crimes Act 1958.” (para 7)

    The later appeal against sentence (initiated by Black) was dismissed.

    Feminist commentary:

    Negative

    ‘… we contend that  Karen Black’s response in stabbing Wayne Clarke could be seen as ‘reasonable’ (we note that this argument is also made by Toole 2012). Yet it would appear that, in Karen Black’s case, being forced into sex was not conceived as rape; indeed, the word ‘rape’ was not used during the plea hearing. The sentencing judge and the majority judgment in her appeal noted that she would ‘give in’ to Wayne Clarke’s demands. Being physically intimidated or forced into sex by a partner is often not seen as ‘real rape’ . Yet research shows that the experience of sexual violence by an intimate partner may have greater negative psychological effects than physical violence alone.’ (Kirkwood et al 2013 29-33 refs omitted)

  • Creamer v R (2012) VSCA 182 (16 August 2012) | austlii
    Victorian Court of Appeal, Weinberg and Bongiorno JJA and T Forrest AJA (concurring)
    Defensive homicide, sentence appeal, seriousness of violence.
    R v Creamer (2011) VSC 196 (20 April 2011) | austlii
    Victorian Supreme Court, Coghlan J.
    Defensive homicide.

    Summary

    The accused pleaded not guilty to the murder of her husband. She was convicted of the alternative charge of defensive homicide. The trial had been conducted on the basis that she was guilty either of manslaughter or defensive homicide.

    The accused and deceased had been married for 11 years. The relationship was characterised by both parties having numerous extra marital affairs.  Evidence was accepted that the deceased had tried to make the accused engage in group sex, which she did not want to do. Coghlan J found that the accused regarded her position as extremely unsatisfactory and the future of her relationship with her husband as bleak. On the night the deceased died they had had an argument and the accused hit him over the head with a blunt object before stabbing him to death.  There was only one event of domestic violence submitted for evidence. This was the day before the deceased’s death when the deceased had hit the accused over the leg with a stick. Coghlan J found that the  deceased’s relatively long-term relationship with another woman and his stated ambition to resume his relationship with his first wife are all part of the material which would come under the heading of domestic violence.

    The verdict of guilty to defensive homicide means that the jury entertained a reasonable doubt about the issue of self-defence. The accused could only have been convicted of murder if the jury were satisfied beyond reasonable doubt that at the time she committed the act or acts which would otherwise have been murder, she did not believe that it was necessary to do what she did to defend herself from the infliction of death or really serious injury.

    The Court sentenced her on the basis that she had been overwhelmed by the whole of the circumstances as they surrounded her and, in particular, by her concern that she was being forced into a sexual scenario which she did not want.

    The Supreme Court held: Convicted of defensive homicide. Sentenced to 11 years imprisonment with non-parole of 7 years.

    The later appeal against sentence (initiated by Creamer ) was dismissed.

    Feminist Commentary

    Negative

    ‘Misconceptions and confusion around family violence were evident throughout the trial. There appeared to be a lack of understanding about how psychological manipulation, sexual degradation and coercive control ‘are forms of family violence.’ (Kirkwood et al 2013, 28  refs omitted)

    ‘While the prosecution cast doubt over much of Eileen Creamer’s evidence, in our view there was consistency between her evidence at the trial and what she told the police and expert witnesses about her fear that, in the face of his constant psychological coercion, she would be unable to stand

    up to her husband to prevent the group sex from occurring.’ (Kirkwood et al 2013, 28)

    ‘A significant problem for the defence was that some of the evidence of abuse was not corroborated

    or was seen to conflict with some of the facts of the case. .. However, research on sexual assault and family violence reveals that victims often do not tell others because of a deep sense of shame and self-blame. Indeed, Eileen Creamer explained at the trial that she was too ashamed to tell anyone about what went on in the relationship. Research also demonstrates that there are a range of reasons why women stay in relationships with abusive partners. (Kirkwood et al 2013, 27 refs omitted)

    Neutral

    “It is arguable that R v Creamer (2011) demonstrates the importance of the ‘halfway house’ provided by defensive homicide; Creamer ran a trial on the basis of self-defence knowing that she had the safety net of defensive homicide. Alternatively, perhaps the R v Creamer (2011) result occurred because the jury decided that a conviction of defensive homicide was simpler than considering a complete acquittal based on self-defence (Fitz-Gibbon and Pickering). Some, like Wienberg, a Judge on Victoria’s Court of Appeal, question whether defensive homicide has given any effect to the underlying policy consideration it sought to respond to. It may be too early to tell as the jurisprudence underlying the application of defensive homicide may take, more time to become established.” (Douglas 2012, pp.371-372)

  • R v Irsigler (2012) QSC (28 February 2012)
    Queensland Supreme Court, Mullins J
    Murder, acquittal, self-defence.

    Michele Irsigler killed her husband, Jonathan Watkins, in 2001. In 2012, she pleaded not guilty to both murder and interfering with a corpse. Assisted by others, she burnt the body, spreading the ashes on a farm. In her evidence at trial, Irsigler described a long history of abuse at the hands of the deceased including broken bones, rape and threats. On many occasions she had called the police or tried to leave. Watkins had moved out of the family home prior to the killing because Irsliger had threatened to expose his sexual abuse of their daughter. Several days before the killing he returned to the family home and held Irsliger and their daughter hostage for three days. On the fourth day Irsliger managed to escape; she obtained a gun for protection so that she could collect her belongings. She returned to the house with a friend, Pilkington. On their arrival Watkins set upon Pilkington and Irsliger shot Watkins, killing him. While self-defence was the focus of the defence case, the preservation defence was raised as a ‘fall-back’ option and Justice Mullins directed on both self-defence and the preservation defence. Irsliger was acquitted of homicide but she and two co-offenders were found guilty of interfering with a corpse. She was sentenced to 18-months imprisonment, fully suspended.

    Feminist commentary

    Positive

    “Defence counsel asked one expert psychiatrist to explain the concept of battered wife syndrome, the expert witness responded: ‘it’s not actually a psychiatric diagnosis, and the reason why it’s not a psychiatric diagnosis in itself is because anybody in the situation of protracted violence will develop certain behaviours’. Clearly such evidence is pivotal in providing a social context that helps to explain the accused person’s behaviours to the jury (and the judge). In this case expert evidence could support an alternative explanation for going to the house armed with a gun. Hunter suggests that such evidence can discount the possibility of psychiatric defences.... These cases [also referring to Ney] suggest that judges increasingly accept that expert evidence is relevant in understanding the circumstances in which battered women kill their abuser.” (Douglas 2012, p.576 references omitted)

  • 2013 NSW considers law reform

    Proposed law reform:

    In 2012 NSW launched a parliamentary inquiry into reforming the provocation defence. The inquiry resulted in a report: The Partial Defence of provocation.  The report recommended, among other reforms:

    • the introduction of a social framework evidence provision (similar to Victoria)
    • renaming provocation defence to defence of ‘gross provocation’ and a limitation of the defence’s operation (eg unavailable where provocation is based on choice to leave or change the relationship)

    Crimes Amendment (Provocation) Bill 2014

    Consideration of feminist critique:

    Provocation

    It was submitted to the inquiry that the “most intractable” issue in respect of the partial defence of provocation was its potential for gender bias. (Submission 29, Associate Professor Thomas Crofts and Dr Arlie Loughnan, p. 5)

    Multiple submissions emphasised the defence as being “by men for men”. (Submission 31, NSW Domestic Violence Committee Coalition, p. 12 and Submission 37, Women’s Legal Services NSW, pp. 2-3)

    It was noted that the defence has been criticised for sending the wrong message, ie that violence against women is acceptable. (Submission 36, Greg Bloomfield, FairGO, p. 1, Submission 1, Name suppressed, pp. 1-2, and Submission 49, Ms Catherine Smith, p. 2)

    Feminist academics also noted that the defence also allows victim-blaming. (Submission 12, Mr Graeme Coss, p.6 and Dr. Kate Fitz-Gibbon, Evidence, 28 August 2012, p. 49; see also Submission 42, Submission 35, Submission 48; Submission 12; Submission 18; Submission 31, The NSW Domestic Violence Committee Coalition, p. 16, and Submission 45).

    The previously used phrase “loss of self-control” was criticised by multiple groups as it is often used in respect of intentional and deliberate acts by the perpetrator of abuse to obtain compliance. (Submission 35, Warringa Baiya, pp. 3-4; Submission 37, Women’s Legal Services NSW, pp. 14-15; Submission 16, Women’s Domestic Violence Court Assistance Service NSW, p.5)

    It was also noted that critics had highlighted that the law of provocation as it stood “empathises with and inappropriately privileges typically male responses.” (Submission 31, p.24; Submission 12, Mr Graeme Coss, p.4)

    Self-Defence

    It was submitted that the defence of self-defence more adequately reflects the circumstances in which victims of domestic violence kill compared with provocation. (Submission 12, Mr Graeme Cross, p. 9; Submission 40, Amy Fox, Wayne Zheng, Tanvi Mehta and Vanja Bulut, p. 10)

     However, the defence is not perfect and does not cover all circumstances. (Submission 16, Women’s Domestic Violence Court Advocacy Service, p. 5)

    To strengthen self-defence’s application to battered women, it was suggested that the court admit ‘social framework’ evidence to educate juries on the ‘context and consequences’ of domestic violence. (Submission 16, Women’s Domestic Violence Court Advocacy Service, p. 6; Submission 31, NSW Domestic Violence Committee Coalition, p. 2; Submission 37, Women’s Legal Services NSW, p. 5)

  • 2013 Victoria considers reform

    Proposed law reform:

    After considerable concerns were raised about the operation of the offence of homicide there was debate in Victoria about whether it should be abolished. Consultation on the issue extended through 2013-2014 and the Victorian Department of Justice released a consultation paper titled: Defensive Homicide: Proposals for Legislative Reform in September 2013. The consultation paper recommended:

    • abolition of offence of defensive homicide
    • streamlining of self-defence
    • extension of the use of social framework evidence provision to all offences.

    In 2014 the Victorian parliament introduced a Bill Crimes Amendment (Abolition of Defensive Homicide) Bill 2014, which will implement the proposed changes.

    Consideration of feminist critique:

    It was noted that the current regime was formally equal but not substantively equal. (Graycar and Morgan 2005, p. 399)

    “A succession of Australian studies has found that a high proportion of women who kill an intimate partner are responding to long-term violence by the partner. In these situations, women typically do not respond during a violent attack, and as they are often smaller and less experienced in physical combat than their victims, frequently use a weapon when retaliating. The actions of abused women, therefore, often lack both immediacy and proportionality…

    When an abused woman is convicted of murder on this basis, she has been denied the protection of self-defence because her actions do not conform to established patterns of male violence. This constitutes a gender bias in the interpretation and application (although not the framing) of the defence, which is inconsistent with the bedrock principle of equality before the law.” (Toole 2012, p. 256-7)

    It was noted that the reforms thus far had improved outcomes for women. (Toole 2012, p. 267-71)

    However, in both those cases cited as examples of improvement, immediacy had not been of issue. (Tyson, Capper and Kirkwood, Submission)

    “What this defence provides is a half-way house or ‘safety-net’ for these women, when the law could instead be further reformed to accommodate their circumstances in terms of an arguably more accurate legal category of self-defence. Consequently, through the inclusion of stories of battered women who kill under the offence of defensive homicide, battered women have come to occupy a compromised legal category.” (Fitz-Gibbon and Pickering 2012, p. 177)

    “Off-setting the abolition of the provocation defence with the introduction of a new partial defence ... [ensured] that juries would continue to hear the kind of exculpatory victim-blaming legal argument and evidence that the abolition of provocation was designed to address." (Howe, Submission)

    The improvements of the self-defence law, such as the social framework evidence provisions, are “critically limited by the concurrent enactment of defensive homicide, which rests on the conception of the belief and behaviour of abused women as not being reasonable.” (Toole 2012, p. 286)

    “A key concern of the previously abolished partial defence of provocation was that it provided a mechanism through which a victim of homicide could be blamed for their own death. It is a concern that similar narratives of victim blame are emerging though the operation of the offence of defensive homicide.” (Fitz-Gibbon, Submission)

    Defensive homicide may have “provided an avenue for men to use similar types of arguments in relation to their behaviour that occurred with the provocation defence.” (Tyson, Capper and Kirkwood, Submission)

    The changes to the self-defence provisions were in part in response to suggestions that the focus should be on the reasonableness of the woman’s response, rather than the grounds for her belief. (Howe, Submission)

  • DPP v Bracken (2014) VSC 94 (12 February 2014) | austlii
    Victorian Supreme Court, Maxwell P
    Murder, self defence, acquittal, history of domestic violence.

    Philip Bracken was charged with murder after killing his partner Helen Curtis by strangling her. Bracken alleged he had been subjected to years of domestic violence (pursuant to s9AH Family Violence Evidence provision). A psychiatrist gave evidence during the trial of the effects of domestic violence. Bracken was acquitted of murder.

  • DPP v Williams (2014) VSC 304 (27 June 2014) | austlii
    Victorian Supreme Court, Hollingworth J
    Defensive homicide.

    Summary

    Angela Williams killed her long-time partner, Dragan Dordevic, with a pick axe in 2008 and buried him in the back yard. In 2014 she pleaded not guilty to murder and was found guilty of defensive homicide. Previous domestic violence was not well documented in this case and Williams had lied about her behaviour for some time. A law professor and family violence expert, Patricia Easteal, gave evidence at the sentencing hearing explaining the complexity of family violence. In sentencing  Williams, Hollingworth J observed that the ‘lack of complaint is not uncommon in family violence cases’ and friends and family may not be aware of ongoing violence as it often happens behind closed doors. In her sentencing comments Hollingworth J’s described domestic violence as often ‘belittling and controlling’; that discrete acts form a pattern of abuse that may seem minor if looked at in isolation but that eventually the person will reach a point of explosive violence that seems disproportionate; and that Williams  had few friends and was isolated. She was sentenced to imprisonment for 8 years with a non-parole period of 5 years.

  • 2014 NSW law reform

    Key reforms:

    The Crimes Amendment (Provocation) Bill 2014 was passed in 2014 (assented 20 May 2014).

    23 Trial for murder—partial defence of extreme provocation

    1. If, on the trial of a person for murder, it appears that the act causing death was in response to extreme provocation and, but for this section and the provocation, the jury would have found the accused guilty of murder, the jury is to acquit the accused of murder and find the accused guilty of manslaughter.
    2. An act is done in response to extreme provocation if and only if:
      1. the act of the accused that causes death was in response to conduct of the deceased towards or affecting the accused, and
      2. the conduct of the deceased was a serious indictable offence, and
      3. the conduct of the deceased caused the accused to lose self-control, and
      4. the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of  intending to kill or inflict grievous bodily harm on the deceased.
    3. Conduct of the deceased does not constitute extreme provocation if:
      1. the conduct was only a non-violent sexual advance to the accused, or
      2. the accused incited the conduct in  order to provide an excuse to use violence against the deceased.
    4. Conduct of the deceased may constitute extreme provocation even if the conduct did not occur immediately before the act causing death.
    5. For the purpose of determining whether an act causing death was in response to extreme provocation, evidence of self-induced intoxication of the accused (within the meaning of Part 11A) cannot be taken into account.
    6. For the purpose of determining whether an act causing death was in response to extreme provocation, provocation is not negatived merely because the act causing death was  done with intent to kill or  inflict grievous bodily harm.
    7. If, on the trial of a person for murder, there is any evidence that the act causing death was in response to extreme provocation, the onus is on the prosecution to prove beyond reasonable doubt  that the act causing death was not in response to extreme provocation.
    8. This section does not exclude or limit any defence to a charge of murder.
    9. The substitution of this section by the  Crimes Amendment (Provocation) Act 2014 does not  apply to the trial of a person for murder that was allegedly committed before the commencement of that Act.
    10. In this section: act includes an omission to act.

    Consideration of feminist critique:

    This piece of legislation was specifically based on the reforms suggested in the 2013 report which was informed greatly by feminist stakeholders:  it was claimed in the Bill’s Second Reading Speech that the government had “adopted almost in its entirety the committee’s recommendations.” (Hansard, p. 27147)

  • 2014 Victorian law reform

    Law Reform:

    Crimes Amendment (Abolition of Defensive Homicide) Bill 2014

    Assented September 2014.

    The offence of defensive homicide was abolished and jury directions in respect of family violence were reformed.

    Consideration of feminist critique:

    The new jury directions “are designed to give jurors a better appreciation of the factors impacting victims of family violence” (Explanatory Memorandum, p. 23) and were based on the commentary by the Victorian Health Promotion Foundation 2010, Anderson et al 2003, Meyer 2012, and Barnett 2000.

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Sexually-transmitted/ emotionally-transmitted debt

'Sexually-transmitted debt' (STD) typically refers to a situation where legal liability is spread from the principal debtor to his partner. While this may occur within a range of relationships and situations, the cases and commentaries mapped here relate to wives (and after 1998 also de facto partners) taking on economic liability for their husbands’ business borrowings or debts of the family company. The main concern is that the spouse takes on obligations due to the circumstances of the relationship, rather than an awareness of the liability or because she receives some benefit. The cases typically arise where there is company insolvency, husband bankruptcy or a relationship breakdown. Often the spouse liability results in the loss of a family home that has been provided as security. This part of the project maps cases, feminist commentary and law reform related to the recognition of STD within contract law and corporations law. We provide a summary of relevant cases and cite feminist academic commentary of the cases where available, noting whether this commentary is neutral, positive or negative. We also identify relevant law reform reports and industry or legislative intervention. In the map, we have identified women judicial officers in red text where known, and links to cases are provided if they are publicly available. This text is up to date to December 2014.

Sexually-transmitted/ emotionally-transmitted debt (printable version).

Feminist academics have identified that STD can arise in a range of situations that tend to particularly impact upon women. These situations include where debts are incurred as a result of:

  • family violence (Anrows 2015) or uneven power balance within the relationship;
  • a wish to maintain relationships and to protect family;
  • the impact of women’s traditional roles in the private space, such as the male assuming control of family finances; and
  • a lack of opportunity to gain requisite business education or experience.

Feminists have also identified inequalities in the treatment of women by financial institutions (particularly until the early 1990s) where they were assumed to be financially incompetent or simply discriminated against.

However, there is no consensus as to how the law ought to recognise and address these issues. Debate has tended to centre on whether an attitude of sameness or difference of women/wives should be adopted. On the one hand, there is an argument for formal equality - we should assume and allow women to have equal ability to make financial decisions or to participate as directors in family companies. Generalised assumptions about women’s abilities or attributes are essentialist and can be regressive. So we should treat women and men alike. On the other hand, women are still overwhelmingly those likely to provide support for their partner’s financial endeavours for little or no personal financial gain and are subject to the impact of sex discrimination and entrenched gendered roles. Therefore, some feminists argue that to achieve substantive equality the law must be able to recognise gendered differences – hence the need for a specific difference rule. Others have complicated this argument by pointing out that this recognition should not focus on perceived ‘women’s problems’ but be sufficiently nuanced to take account of and address the real factors which produce unfair results like systemic gendered economic inequality.

Our map of STD in Australian contract law and corporations law

There are three parts to our case study mapping judicial notice of the concept of, and use of the phrase, STD. It maps how it arises in cases:

  • applying equitable doctrines of undue influence and unconscionable dealing for relief from spousal guarantees;
  • using statutory avenues for relief from spousal guarantees; and
  • conducted under corporations law concerning wives as directors of family companies.

This study is confined to these areas where STD has been most used in the courts and noticed by commentators. We also note the use of like phrases such as emotionally transmitted debt or relationship debt in cases in this map.

Undue influence and unconscionability claims regarding spousal guarantees

Contract law has adopted the liberal idea of the private family in which the law ought not to intervene or to regulate. Feminists have critiqued this approach as disproportionately disadvantaging women (eg. Frug 1984) and also as a legal fiction (Graycar & Morgan, Ch 2). Nevertheless, the equitable doctrines of undue influence and unconscionability have long recognised that contractual obligations might be undertaken in situations of inequality or unfairness and provided relief in some cases. Thus equity has a role to play in remedying the harshness of legal assumptions that those contracting are autonomous, self-interested and consenting. Yet, this map reports feminists’ concern about the application of these equitable doctrines to the situation of wives/partners guaranteeing their husband’s/partner’s debts. While equity provides a legal basis to draw attention to the impact of relationship pressures, feminists have pointed out that the outcome of these cases is often substantially influenced by inappropriate judicial attributions to women about feminine passivity and selflessness. This has been identified as a particular problem for gaining relief where courts assume unity of economic interest with a male partner. The map traces how feminists have influenced judicial decision-making, and critiqued it, regarding STD in spousal guarantees. The map is divided into sections according to the limbs which need to be established and where feminists have identified gendered effects from judicial approaches to facts:

  • that the wife suffered undue influence or was mistaken about the transaction; and
  • she received no benefit from the transaction (was a ‘volunteer’); and
  • the lender did not provide adequate explanation or no adequate explanation was received from another advisor.

There is another evidential difficulty in applying these doctrines to spousal guarantees. Where a third party is involved, such as a bank lending to the husband, it must be shown that the third party either knows about undue influence of the husband or takes advantage of a wife’s misconception itself. However, in 1939, Australian law adopted a ‘special’ evidential rule about wives providing guarantees for their husbands’ personal or business loans. This rule does not make such transactions automatically invalid but simply extends responsibility to the lender for any undue influence by the husband or a lack of understanding of the transaction by the wife guarantor. The map shows the influence of feminist scholarship in the development of this principle: from recognising feminist scholarship in decisions, to intense judicial scepticism of this difference approach and then adopting a special rule with treats husbands and wives as the same and contemplates other intimate relationships.

From 1994 until 2007, a series of reports have pointed to the need to introduce other structural reforms which address information deficits and reduce the impact of relationship pressure around the time of signing a guarantee. The Code of Banking Practice (2013) has introduced many of these recommendations. While this Code has no force of law (but may have contractual force), the map provides cases where it has been considered as evidence as to whether a transaction is unconscionable or unfair. Thus a failure to follow good industry practice may be a strong factor in a successful claim for relief and may have prophylactically reduced key contributors to STD in spousal guarantees.

Statutory claims for relief of spousal guarantees

Feminists have continued to point to courts’ privileging of the interests of banks and economic freedoms such that a ‘woman’s problem’ of STD needs to be addressed fleetingly and with little expense. By and large, law reform has tracked this approach introducing protections which either primarily cover small transactions of a consumer nature (thereby ignoring frequent situations of STD) or simply require more information to be provided. As the mapping of statutory claims (under provisions of the Trade Practices Act 1974 (Cth) or later the Australian Consumer Law (2011)) shows, there is always a difficulty in guarantee cases because the impact of the relationship needs to be linked to the bank to receive relief. An exception to this is the NSW Contracts Review Act 1980 (NSW). A section of this map traces cases where its provisions have provided another basis on which wives (in that State) can argue that the guarantees they have signed are harsh or unfair that goes beyond common law relief.

A map of STD in Australian corporations law

Feminist commentators and law reform reports have noted that STD may also arise in the context of the operation, or often the insolvency, of a family company. Corporations legislation used to require any company to have at least two directors and shareholders. Feminist scholarship pointed to the specific impact on women of this requirement: wives were frequently prevailed upon to become a director for reasons of pure compliance; or women establishing companies were compelled to request a spouse to participate in their company. The First Corporate Law Simplification Act 1995 (Cth) abolished this requirement and, when introducing the Bill to Parliament, the then Attorney-General referred to specific law reform objectives of addressing STD in family companies. The cases mapped here show that, since that time, the law adopts a strictly formal equality approach to directors (in similar roles).

However, as Belinda Fehlberg’s work showed, there remains a range of situations where STD can arise in family companies. The first is where the wife is persuaded to provide a personal guarantee of the company borrowings usually secured by her only major asset– the family home (see cases in earlier part of this map). Another is where a wife becomes a director and is unable to access information or make decisions about the company because of relationship pressures. Indeed, feminist commentators in the 1990s noted that judges often assumed that the wife director will be non-participating but consenting to the husband controlling the company. Nevertheless, Australian law has increasingly imposed upon directors core duties of financial literacy and to monitor company progress. While the reality may be quite different, the assumption of sameness of all (like) directors is difficult to rebut because of limited statutory defences and narrow judicial interpretation. Legal blindness to continued systemic power imbalances is cause for concern. However, many scholars express caution about adopting a special rule for certain directors or even making it easier to establish defences. There is a strong policy rationale for making directors accountable for the company - particularly that it can pay its debts. The concern is that directors have an incentive to act recklessly or against creditor interest in the pursuit of shareholder profits. In order to address this, the law lifts the corporate veil to make directors potentially liable for certain breaches of the Corporations Act 2001 (Cth) (such as trading when insolvent). The consequence of this is to privatise most issues internal to the company - like STD - and to make these circumstances beyond the concern of the law.

Note: This mapping has revealed that the concept of STD, or the phrase, has been applied in other legal contexts from time to time where there is a question of a lack of decision making power due to relationship effects. These issues naturally arise in the context of family law disputes but have not been mapped here. As noted earlier, this study is confined to the areas of law – contract and corporations law - where STD has been most used in the courts and noticed by commentators. Here are three other examples:

For a criminal law context, see for instance:

  • Gameau v DPP (Cth) [1998] SASC 6615 | austlii
    Supreme Court of South Australia: Mullighan J

    Mullighan J

    “It appears from that observation that the learned Magistrate was prepared to act on the report in a way favourable to the appellant and in fact did so. After referring to the appellant's relationship with her partner, it appears that the learned Magistrate accepted that the features of that relationship which had been mentioned led to her committing the offences. She used a colloquial expression that ‘this is a case of what is often termed a “sexually transmitted debt”.’ She accepted that the prospects of rehabilitation were good and that it is unlikely that she would re-offend. She had regard to the reparation payment.”

For a consideration of family violence leading to transfer of property, see for instance:

  • Farmers’ Cooperative Executors and Trustees Ltd v Perks (1989) 52 SASR 399
    South Australian Supreme Court: Duggan J

    The Court held that a memorandum of transfer of a property interest from a wife to a husband was executed under duress or as a result of actual undue influence. The defendant husband had been convicted of murdering his wife and the action was brought by her executor. In evidence, detailed accounts of the history of his violence towards her were given, including evidence from their children and a family friend. The sons gave evidence of their father’s extreme brutality towards their mother. The family friend attested that the husband had “declared on more than one occasion that a woman should not own more land than her husband, that it wasn't fair, wasn't right”. He had said this in the context of demanding that she “square up” and “sign on the dotted line”. There was no consent provided in the context of extreme physical violence.

    Duggan J

    “[T]hat the defendant subjected the deceased to violence and abuse which was so much a part of everyday life in the household that the children did not regard it as unusual until they discussed it in later years with friends at school. The only conclusion I feel able to draw from the deceased's decision to remain with the defendant over the years is that she too came to accept it as part of her everyday life. In my view, the defendant dominated his wife by the constant employment of actual and threatened violence and it is against this background that the events more directly concerned with the transfer of her share in the property fall to be considered.”

For over-payment of a government allowance, see for instance:

  • White; Department of Family and Community Services [1999] AATA 534 | austlii
    Administrative Appeals Tribunal of Australia: Senior Member A.D. Allen

    Senior Member Allen

    “[i]n this matter, it is clear and it is important to note that the respondent is indeed the innocent victim in all of this and her own honesty and integrity are not in doubt. Indeed it is a case, which in other circumstances, has been referred to rather inelegantly as a sexually transmitted debt. What has happened is because of the statements by the man King, the respondent received payments, she received payments to which she was not entitled and the Act makes provision that they must be repaid unless of course there are special circumstances” (at [5]).

1925 - 1997 – ‘Wives’ special equity’: An Uncomfortable Australian Principle

In 1939, the decision of Dixon J in Yerkey v Jones introduced into Australian law a ‘special principle’ applying to wives guaranteeing husbands’ transactions with a third party – often called ‘wives’ special equity’. His Honour found that, while there is no presumption of undue influence by a husband over a wife, such transactions attract ‘an invalidating tendency’ in equity if the transaction is either induced by the influence of the husband or there is a lack of understanding by the wife, and the transaction does not provide any direct benefit to the wife. What is ‘special’ about the approach from Yerkey v Jones is that the wife need only show that the bank was aware that she was married to the borrower to pass on responsibility for vitiating factors flowing from the spousal relationship. She does not have to prove that but for an understanding of the transaction or the influence, she would not have provided the guarantee. This evidential assistance is provided to wives in this context only. The lender can displace this ‘tendency’ towards relief by showing either that she had received legal advice about the transaction or the bank had explained it to her (unless there was actual undue influence).

Many State courts during this period demonstrated a strong antipathy to any principle based on sexed or gendered difference, even while, after the Equality Before the Law Report in 1994, they accepted evidence about STD continuing to occur within marriages and cited feminist commentary. In the United Kingdom, the House of Lords decided Barclays Bank Plc v O’Brien (in 1993) in which it refused to follow Yerkey v Jones and put banks ‘on inquiry’ for any relationships of ‘trust and confidence.’ While Barclays does not represent the law of Australia, many Australian courts cited Barclays and its policy reasons for rejecting ‘wives’ special equity’, with approval. Courts’ concern culminated in a decision by the NSW Court of Appeal in Akins v National Australia Bank (1994) to not follow Yerkey v Jones. Many subsequent courts in NSW and other jurisdictions followed suit, leaving wives to fulfil the difficult onus of proof of the actual or constructive knowledge of the bank about the husband’s undue influence or some taking advantage of her misunderstanding. The Victorian Supreme Court continued to apply the Yerkey v Jones principle. Unsurprisingly, most guarantee cases under the general law principles did not succeed. This section only contains cases in which a court directly considered the appropriateness of Australian law retaining the principle from Yerkey v Jones.

  • The Bank of Victoria Ltd v Mueller [1925] VLR 642
    Supreme Court of Victoria: Cussen J

    This case concerned the effect of the ‘trust and confidence’ that a married woman placed in her husband. The Court found there was a failure to adequately explain the transaction to her and no immediate economic benefit to the wife. The guarantee was set aside. Cussen J referred to equitable principles dealing with large voluntary donations by a wife to a husband as voidable if misunderstood by the wife.

    Cussen J found that the guarantee was unenforceable for the reason,

    “… that the husband in procuring and pressing for such consent misrepresents in a material respect what is proposed to be the nature of her liability as guarantor, and that, by reason of such misrepresentation, the wife in respect of such matter does not understand the true nature of her liability as expressed in a form of guarantee signed by her.”

  • Yerkey v Jones (1939) 63 CLR 649 austlii
    High Court of Australia: Latham CJ, Rich, Dixon, McTiernan JJ

    A wife was bound by a mortgage she gave over her property to secure the purchase by her husband of a poultry farm. She alleged undue influence on the part of the plaintiffs and her husband acting together and also on the part of her husband separately. She alleged various fraudulent misrepresentations and certain non-disclosures. She contended that the mortgage which she actually signed was of a different nature from that which was represented to her and from that which she understood it to be. The Supreme Court of South Australia held against the husband but dismissed the action against the wife upon the evidence which supported the defence of mutual mistake or misrepresentation. However, the High Court upheld an appeal and found that she did not act under the undue influence of her husband or was positively deceived by him or that her will was improperly overborne by him.

    Dixon J

    "In the first place, there is the doctrine, which may now perhaps be regarded as a rule of evidence, that, if a voluntary disposition in favour of the husband is impeached, the burden of establishing that it was not improperly or unfairly procured may be placed upon him by proof of circumstances raising any doubt or suspicion. In the second place, the position of strangers who deal through the husband with the wife in a transaction operating to the husband's advantage may, by that fact alone, be affected by any equity which as between the wife and the husband might arise from his conduct. In the third place, it still is or may be a condition of the validity of a voluntary dealing by the wife for the advantage of her husband that she really obtained an adequate understanding of the actual nature and consequences of the transaction. It will be seen that all three of these matters must have a special importance when the transaction in question is one of suretyship and the wife without any recompense, except the advantage of her husband, saddles herself or her separate property with a liability for his debt or debts" (at p. 675-6).

    “… if a married woman's consent to become a surety for her husband's debt is procured by the husband and without understanding its effect in essential respects she executes an instrument of suretyship which the creditor accepts without dealing directly with her personally, she has a prima-facie right to have it set aside” (at p. 683).

    Feminist commentary

    Neutral assessments

    “The Yerkey principle has, depending on one’s interpretation of ‘equality’, both assisted and inhibited the struggle to achieve that goal. Some scholars have argued that the special wives’ equity, by acknowledging that women are different from men and may exhibit greater vulnerability to exploitation, has furthered women’s equality. Others have seen equality as being achieved only when women are treated the same as men: the differential treatment of wives leads not to equality but to the perpetuation of stereotypes that are demeaning of women.” (Wright 2006, p.69)

    Positive assessments

    “In many cases, the Yerkey principle has served to protect wives from being exploited and having their interests neglected. The degree of the exploitation and neglect varies from one case to another.” (Wright 2006, p.68)

    Negative assessments

    “The concept of the ‘ignorant’ and ‘subservient’ wife, on which the Yerkey decision was certainly based, is now very much ‘outmoded and offensive’. … [A] woman wishing to claim relief on the basis of the Yerkey principle must argue that she was, at the time she acted for surety for her husband’s borrowings, subservient to him and suffered financial ineptitude. Consequently, the principle in practice can be demeaning to women.” (Wright 2006, p.68-69)

    “Two objections to protection depending exclusively on married status are: (1) the immediate exclusion of those involved in de facto relationships; and (2) failure to acknowledge the increasing social, domestic and economic equality of parties entering marriage today. To these objections it seems necessary to add the sex discrimination inherent in the rule in Yerkey v Jones. Although, at the time of its formulation, the social attitudes and values were such that it would have been unthinkable that at some time in the future it would be extended by being reformulated in gender neutral language.” (Fisher 1996, p.41)

  • European Asian of Australia Ltd v Kurland and Another (1985) 8 NSWLR 192
    Supreme Court of New South Wales: Rogers J

    Negative to Yerkey principle

    A husband and wife gave their personal guarantees in respect of a company obtaining a loan with security of a second mortgage over their home. The house was registered in the name of the wife, Mrs Kurland, alone. The Supreme Court found there was evidence that all documents relating to the loan transactions were procured off Mrs Kurland by her husband and she signed them without knowing anything about the nature of the documents or the liability they imposed on her. She relied on the principle from Yerkey v Jones in order to release her from the guarantee. However, the Court held that the contracts were enforceable. The ‘invalidating tendency’ did not apply as the Court decided that she stood to benefit equally with her husband by virtue of their equal shareholding in the company and thus the transaction was not unconscionable.

    Rogers J indicated that in assessing the ‘special disability’ of the guarantor in order to fulfil an aspect of the unconscionable dealing doctrine, he “encountered great difficulty in attempting to describe Mrs Kurkland in a way which avoids giving offence.” He described Mrs Kurland as “an archetype of a female with a total lack of interest in anything outside her household” (p. 197).

    Despite this factual conclusion about the case before him, Rogers J expressed the following strong concerns about the principle from Yerkey v Jones:

    “I feel compelled to say that in the year 1985 it seems anachronistic to be told that being female and a wife is, by itself, a sufficient qualification to enrol in the class of persons suffering a special disadvantage. . . . Were this to be correct, it would affix a badge of shame to this branch of the law. . . . That being a female spouse should place a person shoulder to shoulder with the sick, the ignorant and the impaired is not to be tolerated.”

    Feminist commentary

    Negative assessments – regarding approach to Yerkey principle

    “This judgment sees gendered differences as an anachronism. This view fails to see the inequalities in power associated with sex.” (Otto 1992, p.818)

    “[G]ender inequality has not been considered to be an appropriate basis for equitable relief [footnoting Kurland and Warburton]. As the cases on sexually transmitted debt reveal, classifications on the basis of gender are increasingly considered to be ‘anachronistic’, and gender-neutral doctrines such as the Amadio doctrine of unconscionable dealing are seen to be consistent with the promotion of gender equality.” (Dunn 2000, p.439)

    “Many judges have voiced fervent opposition to the ready assumption made by some legal counsel that wives exhibit especial vulnerability to influence. Rogers J in European Asian of Australia Ltd v Kurland asserted that this assumption placed married women ‘shoulder to shoulder with the sick, the ignorant and the impaired’.” (Wright 2006, p.68)

    “In these situations, the legacy of traditional gender roles is clearly evident” and yet unrecognised by the court. (Baron 1995, p.28)

    Negative assessments – regarding approach to evidence

    “Although the binding force of [‘special equity theory’] has been recognised and subsequently applied, in recent years the trend has been to narrowly interpret the ratio and distinguish the case to avoid its application” [citing this case]. (Bailey 1999, p.1014)

    “The standards against which the behaviour of women is compared seem to vary from case to case. Some women appear to have their behaviour judged by comparing it to an active masculine standard. For example, Mrs Kurland had a tertiary education and her failure to become involved in financial matters affecting her was measured against the involvement that a reasonable person (man?) with a tertiary education would have had.” (Howell 1995, p.100)

    “In some cases where the facts have suggested the rule could apply, the response has not been so circumspect. This is demonstrated by Rogers J in European Asian of Australia Ltd v Kurland …” (Fisher 1996, p.40)

  • Broadlands Finance v Sly (1987) 4 BPR 9420; [1987] ANZ ConvR 328; (1987) NSW ConvR 55-342
    Supreme Court of New South Wales: Foster J

    Positive to Yerkey principle

    In this case, there was undue influence exercised over Mrs Sly, the wife, by her husband, Mr Sly, through his domination in the relationship, and applied when procuring her signature on a guarantee for a loan to buy a hotel. The Court was satisfied that she played no part in the transaction or servicing the mortgage except when signing. The Court described the loan as an ‘ordinary transaction’ except for the haste in which it was executed. While there was no actual knowledge of the lender, the Court found there was constructive knowledge so as to render the contract unconscionable.

    Foster J

    “I am satisfied that Mrs. Sly's education in no way fitted her for participation in any business enterprise. I am equally satisfied that during what seems to have been a fairly lengthy period of residence at Gunnedah, although she was, in a broad way, aware of the financial ups and downs of the farming enterprise, she played no part in the day to day running and management of the business and, in particular, had no real knowledge of or participation in the financial aspects of its operation. … Mrs. Sly, I am quite satisfied, played no part in these matters, had no real understanding of them, and, indeed, had no interest in them. Indeed, she left all financial matters of any consequence to her husband, including matters such as "things like Medicare applications". Apart from house-keeping money provided by her husband, Mrs. Sly had no income other than a pension she received in respect of her war service. This was paid into her bank account at a local bank, from which account she made minor expenditures on behalf of herself and her grand-children” (at [17]).

    “As already indicated, she left all matters of business to him. She trusted him. She readily deferred to him in any commercial matter. She did not regard herself as stupid but she considered herself to be dominated by him. In any mutual dealings between them, she was obviously at a complete disadvantage. He was obviously both in a position of advantage and also of influence over her” (at [45]).

    Foster J, commenting on applicability of Dixon J’s comments in Yerkey in 1939, stated:

    “Although the "present day" of which his Honour spoke was the day of 1939, and although the words could not be thought to have the same universal application in the social and economic world of today, it is not difficult to apply them to the situation of a woman of the age and background of Mrs. Sly” (at [46]).

  • Warburton v Whiteley (Unreported, 1989 - BC8902562)
    Court of Appeal New South Wales: Kirby P, McHugh, Clarke JJA

    Not positive to Yerkey principle

    In this case, Whiteley was entitled to invalidation of her separate personal liability on the basis that her husband had procured her execution of the guarantee to the knowledge of the creditor who had no reasonable ground to believe that she fully comprehended the transaction and freely entered into it. The Court of Appeal considered whether the principle in Yerkey was obsolete. The Court held the principle in Yerkey is the law to be applied in New South Wales until altered by legislation or varied by the High Court of Australia. The Court found in favour of the wife (pursuant to Yerkey), even though she failed to prove that she had no shareholding in the company. Nevertheless, she was not considered to be a substantial beneficiary as the Court accepted that the company guaranteed was "the pup" of her husband.

    Kirby J

    “The general advance in the education and economic involvement of women does not prevent the conclusion that, in a particular case, the woman in question suffers a relevant special disadvantage. In the present case Mrs Warburton had no education past her intermediate certificate. She was absent from the workforce and business world for a substantial period whilst rearing her children. She was always subordinate to her husband in their common business affairs. She took no part in the business affairs of the companies. She was unaware of the details of her husband’s association with the companies and with the creditors generally. In sum, the evidence paints a picture of a woman in a significantly unequal relationship with her husband, at least in relation to business affairs and the incurring of debts” (at 631).

    Literature cited by Kirby J evidenced the continuing inequality experienced by women in a range of aspects of their lives from employment to access to banking:

    • Thornton 1986;
    • Deery and Plowman 1985;
    • New South Wales Anti-Discrimination Board 1986.

    Feminist Commentary

    Positive assessment

    “By contrast with the muddled reasoning and scant regard for the doctrine of precedent in Akins, the earlier decision of a differently-constituted Court of Appeal in Warburton v Whiteley is a model of clarity and intellectual rigour. While acknowledging the policy considerations favouring a revision of the rule in Yerkey v Jones, the Court of Appeal on this occasion concluded that it was bound by this High Court authority and proceeded to apply it to the facts of the case. Indeed, in technical terms, the ratio decidendi of Warburton v Whiteley was that Yerkey v Jones remains applicable until the High Court itself overrules that decision.” (O’Donovan 1996, p.323)

  • Carrington v Confirmers Pty Ltd v Akins (Unreported, 23 April 1991)
    Supreme Court of Victoria: Giles J

    Not positive to Yerkey principle

    Two married women (Mrs A and Mrs D) sought relief in respect of mortgages and guarantees they had given to support business loans to their husbands. The Court rejected their claims and yet held that the principles in Yerkey v Jones must be applied even if now ‘anachronistic as founded on an outmoded view of the husband and wife relationship.’ The Court found that while mere directorship of the company by the wife may not of itself constitute a benefit so as to remove possible relief, in this case the income of the family company was what the family lived on. Therefore the transaction could convey a substantial benefit to the wife. On the other grounds, there was no undue influence by the husband. To obtain relief on the ground of unconscionable conduct of the creditor, it would be necessary to show that the creditor had actual knowledge of the special disability of the other party and that it entered too readily into an improvident transaction placing a real burden on the other party. Where a wife guarantees the debt of a company by which her husband conducts business and the creditor does not know the precise arrangements between them or the benefits falling to the wife, more must be shown than knowledge of the creditor of the fact of the relationship. Finally the Contracts Review Act requires that it be established that the contract was unjust at the time when it was made, and whether there is injustice requires attention to the position of both parties. Relief refused on all grounds.

    Giles J

    "... It is not essential that the benefit to the wife be through an interest in the debtor company. That can not be the test, since otherwise it is hard to see why a half interest in the debtor would suffice to exclude Yerkey v Jones wholly. ... In the present case the mortgages and guarantees were for the benefit of Mrs Akins in a real sense, in that they supported the business conducted by Mr Akins through various companies from which came the family income which she enjoyed." (at [47])

    Feminist commentary

    Negative commentary

    “By contrast with the muddled reasoning and scant regard for the doctrine of precedent in Akins, the earlier decision of a differently-constituted Court of Appeal in Warburton v Whiteley is a model of clarity and intellectual rigour...” (O’Donovan 1996, p.323)

  • Barclays Bank Plc v O’Brien [1994] 1 AC 180; [1993] UKHL 6
    House of Lords: Lord Templeman, Lord Lowry, Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Woolf.

    Not positive to Yerkey principle

    A married couple granted the bank a second charge over the family home as security for the overdraft facility of a company in which the husband had an interest. The wife signed the document without reading it and because of her husband’s misrepresentation that their liability was limited when it was not. The bank took no steps to have the documents explained to the wife nor did it suggest that the wife should get independent legal advice. The wife sought to set the charge aside on the grounds that it was the result of the husband’s misrepresentation and undue influence. Only the misrepresentation defence was relied upon in the House of Lords, but the Court considered the doctrine of undue influence and the steps required for a bank to have an enforceable contract in cases where there are guarantees by intimate partners.

    Lord Wilberforce accepted that there was a greater risk of undue influence “than in the ordinary run of cases where no sexual or emotional ties affect the free exercise of the individual’s will” (at p. 191). At the same time, he rejected the broad proposition that wives should be accorded special rights in relation to surety transactions; rejecting the idea of “a special equity applicable only to such persons engaged in such transactions” (at p. 195). Lord Wilberforce emphasised that the same principles apply “to all other cases where there is an emotional relationship between cohabitees” (at p. 198).

    Lord Browne-Wilkinson

    “Therefore in my judgment a creditor is put on inquiry when a wife offers to stand surety for her husband’s debts by the combination of two factors: (a) the transaction is on its face not to the financial advantage of the wife; and (b) there is a substantial risk in transactions of that kind that, in procuring the wife to act as surety, the husband has committed a legal or equitable wrong that entitles the wife to set aside the transaction”.

  • Akins v National Australia Bank [1994] 34 NSWLR 155
    Court of Appeal New South Wales: Clarke, Powell, Sheller JJA

    Not positive to Yerkey principle and refused to follow it

    Mrs Akins appealed from a judgment enforcing a personal guarantee of her husband’s business loan. Mrs Akins had no substantial assets of her own at the time of the marriage and between that time and 1988 she remained unemployed and was financially dependent upon her husband. However, the trial judge believed that she had information about her liability and was not “made incapable by emotional confusion, distractions of children, or other matters from appreciating her position.” It was also found on appeal that she had “not inconsiderable benefits” which flowed indirectly her from the husband's companies. She sought relief under undue influence and unconscionable dealing, relying on Yerkey principles and provisions of the Contracts Review Act 1980. The Court of Appeal held, dismissing the appeal, that the principle of Yerkey is anachronistic and inconsistent with the common law approaches.

    Feminist commentary

    Positive assessments

    “[I]n Akins, the fact that the wife had a professional background and appeared educated and competent appeared to be at odds with the notion that she ‘relied’ on her husband in any sense of her conduct being beyond her control... she did not fit the pattern of the ‘down-trodden, uneducated wife, subservient to her husband and his wishes and unable to understand financial matters or to take practical business-like decisions’. Her decision to leave business decisions to her husband could be viewed as a rational choice to delegate responsibility to someone with a successful history in business affairs, rather than evidence of any disability or undue influence... to urge or require independent advice in a case such as Akins would therefore simply have the effect of imposing unnecessary and costly constraints on lending.” (Richardson 1996, p.377)

    Negative assessments

    “In Akins v National Australia Bank, the New South Wales Court of Appeal considered that Barclays Bank v O'Brien, and the content of Lord Browne-Wilkinson's speech, provoked the need for it to reconsider whether it should continue to apply Yerkey v Jones. With the greatest respect, this is attaching too much weight to a decision of the House of Lords which is merely a persuasive authority. Whatever sympathies one may have with the O’Brien approach, it is simply not open to the New South Wales Court of Appeal to adopt it in defiance of the different approach taken by the High Court in Yerkey v Jones.” (O’Donovan 1996, p.322)

    “The preference of Australian courts to deal with Yerkey cases under the broad heading of unconscientious dealing was indicative of a broad trend away from a special wives equity. This trend was clearly evidenced in Akins.” (Hepburn 1997, p.107)

    “The result of this legal debate is, for women in Australia, quite unsatisfactory. The principle of Yerkey v Jones is narrow and outmoded but nonetheless it is an important remedy for married women. If the approach in Atkins is applied generally in Australia Yerkey v Jones is no longer available. However, the protection it provided has not been replaced by a more appropriate form of protection. Women are required instead to rely on the doctrines of unconscionable conduct and undue influence which … do not easily or adequately recognise the experiences and position of women in Australia” (Equality before the Law, chapter 13).

  • ANZ Bank v Dunosa Pty Ltd [1995] ANZ ConvR 86
    Supreme Court of Victoria: Hansen J

    Follows Yerkey principle – no expressed view

    Various guarantees were given for loans by the bank for business transactions of a family company, including personal guarantees secured by the family home. Dunosa had little education but she did have some business experience. Hansen J found of Dunosa: “She impressed me as a person of reasonable acumen and intelligence who would have been unlikely not to have been aware of the occasion and purpose for which documents were required or have been able to understand their nature and effect, even in general terms, if explained to her” (at p. 62). Dunosa claimed not to know about one of the companies granted a loan and the family trust, and that she had no involvement in the family business. The Court found she understood the nature of the contracts she signed, and was advised at the bank. No misrepresentation or influence by the husband was found. His Honour held that if the company is effectively the husband’s this may be taken into account. In this case, it was found that the company was not the ‘alter ego’ of the husband and the loan supported the “business from which came the family income which she enjoyed” (at p. 61). No relief was granted.

    Hansen J

    “I was, perhaps, invited to consider whether the principle in Yerkey should now be regarded as subsumed in the area of unconscionable conduct, having regard in particular to the role and equality of women in society and the responsibilities of directors of companies… . However, until the High Court states otherwise I am bound to regard Yerkey as binding and as stating a separate principle based on the invalidating tendencies, and I note this view has been taken in several cases in New South Wales … .” (at p. 57-58).

  • Budget Stationery Supplies Pty Ltd & Ors v National Australia Bank Ltd (Unreported 4303 of 1993) [1996]
    Supreme Court of New South Wales: Santow J

    Negative to Yerkey principle

    A company owned by a husband and wife received a loan and overdraft account secured by several joint and personal guarantees of the couple. Mrs Dudley, with a limited education, was found to have an administrative role but not a decision making role in the company. The case for relief was argued on a range of bases. The judgment describes Mrs Dudley as ‘quite unsophisticated and rather passive’ and ‘not someone who would have pressed for a fuller explanation’ of the loan and guarantee (at 32-3). Nevertheless, the Court found that she had a ‘rudimentary’ understanding such that she appreciated the basic workings of the guarantee and mortgage on her home, and that ‘her husband was quite clear on that matter and no doubt she followed her husband without greatly questioning what was going on’ (at 93). This was not a case of actual undue influence or misrepresentation by the husband to the wife; there was evidence of some understanding of the contractual liability by the wife. The Court found that the wife was under a ‘special disability’ known to the bank but she received an explanation. No relief was granted.

    Santow J

    “Only in [Barclay’s Bank] was the lender visited with constructive notice of the husband's undue influence in procuring the guarantee, though only aware of the marital relationship and of the improvidence of the guarantee. It was recognised that the relationship of husband and wife, like parent and child, rendered the wife more vulnerable to her will being overborne through those close ties of affection and family dealing, in the absence of independent advice. Importantly, emphasis is placed on that kind of relationship, not on any stereotype about women as such, an approach consistent with that adopted by the High Court in relation to the exploitation of an infatuated male by unconscientious dealing in Louth v Diprose (1992) 175 CLR 621 The discussion of "Policy Considerations" in Barclays Bank plc v O 'Brien (supra) at 188 per Lord Browne-Wilkinson, seeks to avoid gender stereotypes, while recognising the frequent occurrence still of wives being inveigled to give improvident guarantees. Lord Browne-Wilkinson warns that if the position were made too onerous for lenders, the family home will in practice be sterilised as an asset to borrow against. …

    [T]he approach laid down for a trial judge in cases of this kind is simply to determine as a question of fact, whether a person has the knowledge and/or experience or capacity to understand a financial transaction such as a guarantee or gave it as a result of undue influence. Where that person is a married woman, there is no presumption or inference drawn merely from that person's matrimonial relationship with her husband as to these matters. Rather, though those may be relevant factors, such factual findings should be approached having regard to all the relevant circumstances of the transaction and relationship. Such an approach accommodates the multiplicity of close relationships ranging from the marital to the de facto or, parent and child” (at [95] and [97]).

  • Teachers Health Investments Pty Ltd v Wynne (1996) 2 ACCR 424; Burnswood and Others v Wynne
    Court of Appeal New South Wales: Mahoney P, Beazley JA, Waddell AJA

    Negative to Yerkey principle; no longer applies in NSW

    Wynne provided a mortgage on her home as security for a loan for her husband and his company. The wife and husband had a history of poor marital relations. The court accepted evidence of the husband's continuing dishonesty, frequent separations from the family and his overbearing tactics. The trial judge found that, at the time of entering into the mortgage, the respondent was in a vulnerable position (mental health issues causing her anxiety) which the husband took advantage of in contriving to secure her entry into the mortgage. The trial judge held that Wynne was entitled to relief under Yerkey. However, he found that the lender’s conduct was not unconscionable in the circumstances and that the mortgage transaction was not unjust within the meaning of the Contracts Review Act 1980 (NSW).

    On appeal the Court of Appeal held that the equitable presumption in Yerkey no longer represents the law in New South Wales as the principles of unconscionability provide adequate grounds of relief to wives who act as sureties for their husband's debts. The Court also held that the two matters which must be established to demonstrate unconscionable conduct were present in this case: that the respondent was under a special disability due to her highly vulnerable state and the appellant should have known of the respondent's special disadvantage and have been on notice that the transaction was perilous from the principal debtor's point of view and improvident from the respondent's point of view. The Court found the bank should have told her to obtain advice relating to the propriety of the transaction from her point of view. Failure to do so rendered its conduct unconscionable. The contract was also unjust within the meaning of the Contracts Review Act 1980 (NSW).

    Feminist commentary

    Positive assessments

    “In many cases, the Yerkey principle has served to protect wives from being exploited and having their interests neglected. The degree of the exploitation and neglect varies from one case to another. For example, in Teachers Health Investments Pty Ltd v Wynne, where the husband used the threat of divorce to persuade his wife to act as guarantor, the court held that the wife was highly vulnerable and her will had been overborne.” (Wright 2006, p.68)

    Negative assessments

    “The outcome of Wynne's case is more sensitive to the relevant concerns. The trouble is that the decision assumes the fact situation to have been an isolated one. If the court had recognised its recurrent nature, it would hardly have rejected the case for a special rule.” (Duggan 1997, p.226)

  • Hepburn v McLaughlins Nominee Mortgage Pty Ltd (Unreported 4239 of 1996)
    Queensland Court of Appeal: Davies JA, Thomas and Fryberg JJ

    Did not apply Yerkey principle

    A loan was made to a company controlled by a man who was bankrupt but which was guaranteed by his wife, Hepburn. She testified that her agreement to sign the security was procured by physical force and intimidation by her husband, and a promise to release her from it within a short time. She did not know about the company or that she had been made a director of it. The Court applied the NSW Contract Review Act 1980 to the facts of the case. Argument was also made on common law grounds of undue influence and duress. Despite Hepburn’s evidence, the Court of Appeal did not find that she was under duress when she signed and there was no evidence of constructive or actual notice by the lender of any undue influence by the husband. The appeal was dismissed and the mortgage enforced.

    Fryberg J

    “[Counsel] argued that duress and undue influence could be established on the basis described in the judgment of Dixon J in Yerkey v Jones. Whether that judgment ever established an independent principle capable of founding a defence in these circumstances may be doubted. In any event, there are two reasons why the argument must fail. First, the Supreme Court of New South Wales has held that the principle in Yerkey v Jones ought no longer be applied in New South Wales, and this guarantee is one the proper law of which is that of New South Wales. Second, on the evidence an equitable defence must fail, having regard to the considerations already referred to in the context of the refusal of discretionary relief under the CRA” (at p. 25).

  • Alexander Gregg v Tasmanian Trustees Ltd [1997] FCA 128 | austlii
    Federal Court of Australia: Merkel J

    Negative to Yerkey principle

    Mr and Mrs Gregg granted a mortgage over their home to secure a loan to a business in which the husband was a director. This case was pleaded on ss 51AA and 52 of the Trade Practices Act 1974 (Cth) that her husband made misleading representations about the nature of the loan and did so as an agent for the lender. This argument failed. However, the Court found that there was a material misrepresentation by the other directors of the company to Mrs Gregg. The court also found that it was unconscionable conduct by the lender in the circumstances knowing of the misrepresentation, and granted relief under the Act. The Court considered whether the principle from Yerkey had been overruled.

    Merkel J

    “It is quite clear from the decision in Yerkey v. Jones itself that the presumption was applied in the context of the statutory and sociological framework that existed in relation to married women in Australia in the late 1930's. World War II led to fundamental changes in the role of women in the Australian workforce. During and after the War, women's, especially married women's, participation in the paid workforce rose steadily. As historian Professor Marilyn Lake recently wrote, far from being under a post-war "condition of house arrest", that participation led to post-war pressure to provide married women with a right to work in the Federal Public Service and the banking sector as well as rights to equal pay and work opportunities. As a consequence of such pressures, over time, the role and economic independence of married women changed. The present framework is different to that of the late 1930's in many fundamental respects. It is, and is accepted as, commonplace that married women are likely to be employed in all sectors of the workforce and in all occupations and professions. In doing so it is expected that married women might occupy positions of legal, financial or corporate responsibility. Equal pay for equal work has now been long accepted as a right for all women. Affirmative action programs have been undertaken, as a matter of public policy, in order to assist that outcome for all women. Equal opportunity legislation protecting women from discrimination, inter alia, in relation to employment on the grounds of gender, pregnancy or marital status has been enacted throughout the Commonwealth… . Whilst the present reality is that gender inequality in the workforce may still persist the assumptions which formed the very basis and rationale for the presumption in Yerkey v. Jones in favour of a married woman can no longer be made or regarded as applicable to present Australian society. These factors do not lead me, as a Judge at first instance, to decline to follow or apply Yerkey v. Jones. Rather, they lead me to the conclusion that the equitable presumption as to a matter of fact in Yerkey v. Jones is not applicable as a precedent in the fundamentally different legal and factual environment which exists in Australia today.”

    However, his Honour continued:

    “However, the judicial deconstruction of the laws "tender treatment" of married women should not lead to sight being lost of the true rationale for that treatment. … Relationships of confidence and trust of the kind which gave rise to the presumption in Yerkey v. Jones abound in many intimate personal relationships in which emotional dependence or influence leaves one party particularly vulnerable to the other, who using the language of Dixon J, has the "opportunity of abusing the confidence". That situation was succinctly summarised by the Australian Law Reform Commission in its discussion on "sexually transmitted debt" … Further, development of the law in this area should not lose sight of the social context in which the problem of ‘sexually transmitted debt’ arises. In her article on "Sexually Transmitted Debt - A Feminist Analysis of Laws Regulating Guarantors and Co-Borrowers" (1995) 4 Feminist Law Journal at 93 Nicola Howell….”

    Feminist literature cited by Merkel J:

    • ALRC 1994;
    • Howell 1995.
  • Farrow Mortgage Services Pty Ltd v Grezlo [1997] ANZ ConvR 226
    Supreme Court of Queensland: Thomas J

    Negative to Yerkey principle and not followed

    Grezlo, who had the care of her three children, was the owner of a property. Michael Kralj formed an association with her and moved into her house in February 1989. He was at that time involved in a large development project in Victoria, in conjunction with others, which was financed by Farrow. During a holiday at Maroochydore, Grezlo introduced Kralj to Maria and Lazlo Toth and they devised a joint development project. Ms Grezlo was persuaded to provide personal security for a loan providing a mortgage on her house. She was appointed a director of the company. When the security was called upon, Grezlo asked for relief from the contract and relied on Amadio citing unconscionable conduct of the creditor. Farrow had notice of the de facto relationship between Grezlo and Kralj, but the Court found she was not ‘a person totally ignorant of business affairs’ (at 26) and documents had been sent to her solicitor. While the Court accepted that there had been physical violence in the relationship, it found the documents were not executed under this threat. No relief was provided.

    Thomas J

    “It was held [in Akins] that … there is no room to resort to the so-called special rules in Yerkey. Powell JA did not consider that Yerkey established any principle in any event, and regarded the more recent High Court decisions as holding the field. Of course the fact that [the common law] provides wider tests covering the field does not necessarily mean that the creditor cannot be held responsible for subsequent unfair dealings without proof of agency. Imputed responsibility may still be found, but on broader notions of accountability and good conscience. I agree with Clarke JA's statement

    where … a creditor leaves it to the debtor husband to procure the execution of the guarantee and takes no steps to ensure that the wife understands the responsibility and liability that she is undertaking, or that she is independently advised, the view may well be open, depending on the particular facts of the case, that the creditor should be held to be aware of the possibility that the wife was in a position of special disadvantage

    and that ‘if this be correct it is difficult to support the existence of a special rule applying to wives who sign guarantees in respect of their husband's debts’.” I also consider that as a question of fact rather than legal presumption, a spouse or de facto spouse may be able to demonstrate by only slight evidence that financial decisions were as a matter of course left to the dominant partner and that sufficient trust and confidence was reposed in that person in relation to their financial affairs to justify an inference of undue influence. … It is unnecessary for me to express a view on what might be thought to be dangerous generalisations. I do accept however that in the fact-finding process a sensitivity is necessary to the influence that a dominant partner in a relationship with another person may easily exercise when that partner wants a particular financial outcome.” (at pp. 28-30)

  • Joyce Ruby Miles v Shell Company of Australia (ACN 004 610 459) [1998] FCA 625 | austlii
    Federal Court of Australia: Sundberg J

    Negative to Yerkey principle

    The case arose as a request for the court to exercise its discretion to refuse a sequestration order under the Bankruptcy Act 1966 (Cth). The wife and her husband were directors and each held one of the two issued shares in a company which applied for a line of credit. The directors guaranteed the company's obligations arising from its use of the credit. The wife claimed that she was not aware that she had ever signed a guarantee, although she did sign various documents in her capacity as a director. Although she was a director, she had no part in the day to day running of the company, and was a director only because her husband told her she had to be because a company had to have two directors. She has always done what her husband asked her to do as regards financial matters and always trusted him. She said that if she did sign the guarantee, its contents were not explained to her and she received no independent legal advice about it. The Court held the applicant had a substantial “beneficial” interest in the company. So she could not rely on Yerkey principles as she was not a volunteer. Nor could she receive any relief under unconscionable dealing because, even if she was under any special disadvantage, the respondent did not know of it. Her application was dismissed.

    Sundberg J

    “… there is no majority support for Dixon J’s proposition [of ‘wives’ special equity’]. I am not therefore no bound to apply Dixon J’s proposition in Yerkey”.

1939 - 1997: Development of undue influence and unconscionable dealing in spousal guarantee cases

During this period, there were several key High Court cases concerning the equitable doctrines of unconscionable dealing and undue influence. The facts of each case raise issues regarding gendered roles in intimate/family relationships. The approach in these High Court cases therefore fed into the debates about how the law should recognise and address STD within marriage and other close relationships. While a common law distinction between undue influence and unconscionable dealing was made in 1983 in CBA v Amadio, the spousal guarantee cases mapped tend to plead both doctrines.

Despite judicial concerns about the Yerkey v Jones principle, there were a number of cases in which a wife succeeded in gaining relief (usually by having the guarantee set aside). Some judges expressly considered the concept of STD and feminist secondary commentary.

However, many courts during the period considered the facts before them in ways which made it very difficult to satisfy the equitable tests, or produced different results with like facts. Feminist commentators argued that this was often a result of the application of gendered stereotypes. One limb of the Yerkey principle – that the wife receives no benefit from the transaction – was particularly difficult to satisfy and is specifically mapped below.

Three High Court key cases

  • Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81 | austlii
    High Court of Australia: Taylor, McTiernan, Fullagar and Kitto JJ

    Blomley entered into a contract to purchase a farm from Ryan. At the time, Ryan was elderly and suffering the effects of prolonged and excessive consumption of alcohol. Ryan then resiled from the sale of his farm, and Blomley sought specific performance of the contract from the court. The High Court found that Ryan was suffering under a special disability which impaired his ability to form rational judgment and protect his own interest, which Blomley knowingly took advantage of to Ryan’s detriment as he sold the farm well below market price. Specific performance of the contract or damages associated with breach were denied as it would be unconscionable to enforce it.

    While this case concerned two men in a commercial arrangement, Justice Fullagar famously stated:

    "The circumstances adversely affecting a party, which may induce a court of equity to refuse its aid or set aside a transaction, are of great variety and can hardly be satisfactorily classified. Among them are poverty or need of arty kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy, or lack of education, lack of assistance or explanation where assistance or explanation is necessary. The common characteristic seems to be that they have the effect of placing one party at a serious disadvantage vis-avis the other." (at p. 386)

    Thus, in this list of disabling attributes, he lists ‘sex’. While this is a famous judicial statement, courts have not followed this in attributing a person’s ‘sex’ (presumably female) as a special disability that equity recognises.

  • Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 | austlii
    High Court of Australia: Gibbs CJ, Mason, Wilson, Deane, and Dawson JJ (dissenting)

    Mr and Mrs Amadio executed a guarantee and mortgage (as security for the guarantee) in favour of the bank for debts of their son's company. Mr and Mrs Amadio were Italian migrants in their 70's, with limited English skills, little formal education and limited or no business experience. They mistakenly believed their son’s company was successful. The bank manager was aware that the company was in financial trouble and assisted the son in procuring the guarantee by going to the Amadio’s house and providing little explanation. The son told the Amadios that the guarantee was for around $50,000 and would be for about six months. In fact, liability was not limited.

    The majority of the High Court found that the Amadios suffered from a special disability when signing the guarantees. The disadvantage was evident to the bank manager and he and the son took advantage of that disability to the detriment of the Amadios. There was no evidence by the bank that the agreement was fair, just and reasonable. It was therefore unconscionable to enforce the guarantee and it was set aside. The facts also indicate that Mrs Amadio was not included in the discussion with the bank manager in her kitchen and was busy washing the dishes at the time. Nevertheless, the judgments treat her as occupying the same position as her husband in the context of signing the guarantees. For instance, in dissent, Dawson J commented on the relationship between the Amadios from the law’s perspective:

    “There was no suggestion that the female respondent would have done other than follow her husband’s lead and there is no basis for treating her position differently for the purpose of the application of the relevant principle” (at 490).

    There was no discussion of any disadvantage suffered by Mrs Amadio as a result of her assumption of gendered roles or her specific exclusion from the discussions.

    Feminist commentary

    Neutral commentary

    “Decided cases show that the circumstances in which men guarantee the debts of others are more restricted than those circumstances where women undertake liability. Where the guarantors are men, the factual situation tends to be similar to that of Commercial Bank of Australia v Amadio, that is, a man (either alone or with his wife) undertakes liability for the business debts of the son. I suggest this pattern conforms to traditional social expectations as to gender roles: women are expected to act selflessly; men are expected to act selfishly except in certain circumscribed situations, most notably where the good of their children is concerned.” (Baron 1995, p.25)

    Negative assessments

    “[T]here is a tendency on the part of some judges and, indeed, some credit providers, to subsume a woman’s interests into those of her male partner. … in situations where parents guarantee the debt of their son, the husband and wife are identified as one unit. This was the case in Commercial Bank of Australia v Amadio.” (Baron 1995, p.37)

    “It was Mr Amadio's involvement with the transaction that constituted the 'facts' upon which the decision was made. This has the effects of dismissing the relevance of Mrs Amadio's experience and silencing the issues of gender which were involved. Substituting Mrs Amadio's view for her husband's, it becomes apparent that she was not even included in the brief negotiations finalizing the transaction in question, which took place in her kitchen whilst she was occupied with washing up.” (Otto 1992, p.816)

    “Another aspect of her special disadvantage arose from her position as a wife. This secondary social position resulted in her exclusion from participation in the negotiation of the agreement, and seriously affected her ability to act in her own self-interest. This remained unacknowledged because of the privileging of Mr Amadio's experience.” (Otto 1992, p.816)

    Comparing Yerkey v Jones principle and Amadio principle

    “[T]he Amadio doctrine is not appropriate for spousal guarantee cases, other than in the exceptional case where [the bank] independently of [the borrower] is guilty of wrongdoing towards [the guarantor].” (Duggan 1997, p.229)

    “It should be noted, however, that arguments have been made that the Amadio principle rarely applies to protect vulnerable women in marriages because it is necessary to establish that the disability of the weaker, vulnerable party is sufficiently evident to the stronger party making it unconscientious for the stronger party to proceed with the transaction. The Yerkey principle does not require this level of knowledge under either limb making it easier for a wife to have the transaction set aside.” (Hepburn 1997, p.102)

  • Louth v Diprose (1992) 110 ALR 1 | austlii
    High Court of Australia: Mason CJ, Brennan, Deane, Dawson, Gaudron, McHugh JJ and Toohey J (dissenting)

    In this case, a man (a solicitor) gave a house, in which he had been living, to a woman. He had been pursuing a sexual relationship with her despite her refusals. After ending relations between them, he sought ownership of the house. He argued that he had not meant to give it to her. The trial judge did not accept his evidence on this basis but accepted that the evidence established that it would be unconscionable for the woman to retain the house. This finding was based on the ‘emotional dependence’ of the man when making the gift which the woman knew about and deliberately manipulated to her own advantage. The finding of dependence so as to create a legally recognised disability was based on judicial acceptance that he was so in love with the woman as to be unable to protect his own interests, and the degree of improvidence of the gift.

    Feminist commentary

    Negative assessments

    “The vivid portrayal of Diprose as a harmless romantic and Louth as conniving, manipulative, lying and undeserving (of course she manipulated him, you can't believe a thing she says) made the acceptance of this most unlikely version of events possible.” (Sarmas 1993-94, p.723)

    “The South Australian Supreme Court, and more recently the High Court, displayed a similar 'blindness' to their gender partiality in response to Mary Louth's situation in the case of Diprose v. Louth. In constructing his infatuation as a 'special disadvantage', the South Australian Supreme Court focused on the actions of Louth which the majority found to be manipulative and intended to deliberately manufacture a crisis which led to the gift in question. The Court completely overlooked the seven years of sexual harassment that she had endured at the hands of Diprose. King C.J. at first instance, whose findings of 'fact' were heavily relied upon by the majority of the Full Court on appeal, went so far as to judge Louth's reluctance to allow Diprose to temporarily move in with her as 'niggardly', when it clearly would have meant subjecting herself to his infatuation in a situation from which she would have no escape. A majority of the High Court also refused to disturb these findings of King C.J " (Otto 1992, pp.816-817).

    … “the creation of an equitable doctrine [of emotional dependence] incorporating a large degree of subjectivity acts as a stimulus for discriminatory stereotyping. … This doctrinal expansion to unconscionability has introduced a highly subjective area of judicial analysis: domestic relational dynamics.” (Haigh and Hepburn 2000, p.276, 301)

    See also Francesca Bartlett’s feminist judgment in Louth v Diprose (Douglas et al 2014, p. 196) as part of the Australian Feminist Judgments Project.

Recognising STD and successfully established cases under the Yerkey principle

Many wives were successful in establishing relationship effects and that these facts brought them within the scope of the law to receive relief from a guarantee, usually relying on the Yerkey principle. This recognition often reflected emerging feminist literature documenting the range of factors impacting on women in relation to banking. For instance, from the early 1990s, there was recognition of direct sex discrimination in banking. After the Equality Before the Law Report in 1994, some courts accepted evidence about STD continuing to occur within marriages and cited feminist commentary.

  • Women and Credit: Sex Discrimination in Consumer Lending (1986)
    Anti-Discrimination Board (NSW)

    This paper identified the continued lack of access of women to consumer banking facilities available to men. Women had been traditionally considered a bad credit risk. The paper found that women were still often denied access to credit facilities. If they were offered such facilities, it was often only on more unfavourable terms than a man or only offered if accompanied by a male co-signer or with proof of infertility.

  • Borg-Warner Acceptance Corporation (Australia) Ltd v Diprose (1987) 4 BPR 97-279; (1988) CCH Aust & NZ Conv R 57
    Supreme Court of New South Wales: Cohen J

    Mrs Diprose guaranteed the business loans of her husband. She argued, with medical evidence, that she was under such stress which he aggravated, that she signed with impaired judgment so as to constitute a ‘special disability’ at the time. The lender had left procuring the guarantee to the husband and had not explained the transaction, and it was therefore unconscionable conduct to enforce the contract. Relief was granted.

  • Broadlands Finance v Sly (1987) 4 BPR 9420; [1987] ANZ ConvR 328; (1987) NSW ConvR 55-342
    upreme Court of New South Wales: Foster J

    Undue influence exercised over Mrs Sly, the wife, by her husband, Mr Sly, through his domination in the relationship, and applied when procuring her signature on a guarantee for a loan to buy a hotel. The Court was satisfied she played no part in the transaction or servicing the mortgage except signing. The Court described the loan as an ‘ordinary transaction’ except for the haste in which it was executed. While the lender had no actual knowledge, the Court found that the lender had constructive knowledge so as to render the contract unconscionable. Relief was granted.

    Foster J

    “I am satisfied that Mrs. Sly's education in no way fitted her for participation in any business enterprise. I am equally satisfied that during what seems to have been a fairly lengthy period of residence at Gunnedah, although she was, in a broad way, aware of the financial ups and downs of the farming enterprise, she played no part in the day to day running and management of the business and, in particular, had no real knowledge of or participation in the financial aspects of its operation. … Mrs. Sly, I am quite satisfied, played no part in these matters, had no real understanding of them, and, indeed, had no interest in them. Indeed, she left all financial matters of any consequence to her husband, including matters such as "things like Medicare applications". Apart from house-keeping money provided by her husband, Mrs. Sly had no income other than a pension she received in respect of her war service. This was paid into her bank account at a local bank, from which account she made minor expenditures on behalf of herself and her grand-children” (at [17]).

    “As already indicated, she left all matters of business to him. She trusted him. She readily deferred to him in any commercial matter. She did not regard herself as stupid but she considered herself to be dominated by him. In any mutual dealings between them, she was obviously at a complete disadvantage. He was obviously both in a position of advantage and also of influence over her” (at [45]).

  • Warburton v Whiteley (Unreported, 1989 - BC8902562)
    Court of Appeal New South Wales: Kirby P, McHugh, Clarke JJA

    In this case Whiteley was entitled to invalidation of her separate personal liability on the basis that her husband had procured her execution of the guarantee to the knowledge of the creditor who had no reasonable ground to believe that she fully comprehended the transaction and freely entered into it. The Court of Appeal considered whether the principle in Yerkey was obsolete. The Court held the principle in Yerkey is the law to be applied in New South Wales until altered by legislation or varied by the High Court of Australia. The Court found in favour of the wife (pursuant to Yerkey), even though she failed to prove that she had no shareholding in the company. Nevertheless, she was not considered to be a substantial beneficiary as the Court accepted that the company guaranteed was "the pup" of her husband.

    Kirby J

    “The general advance in the education and economic involvement of women does not prevent the conclusion that, in a particular case, the woman in question suffers a relevant special disadvantage. In the present case Mrs Warburton had no education past her intermediate certificate. She was absent from the workforce and business world for a substantial period whilst rearing her children. She was always subordinate to her husband in their common business affairs. She took no part in the business affairs of the companies. She was unaware of the details of her husband’s association with the companies and with the creditors generally. In sum, the evidence paints a picture of a woman in a significantly unequal relationship with her husband, at least in relation to business affairs and the incurring of debts” (at 631).

    Literature cited by Kirby J evidenced the continuing inequality experienced by women in a range of aspects of their lives from employment to access to banking:

    • Thornton 1986;
    • Deery and Plowman 1985;
    • New South Wales Anti-Discrimination Board 1986.

    Feminist Commentary

    Positive assessment

    “By contrast with the muddled reasoning and scant regard for the doctrine of precedent in Akins, the earlier decision of a differently-constituted Court of Appeal in Warburton v Whiteley is a model of clarity and intellectual rigour. While acknowledging the policy considerations favouring a revision of the rule in Yerkey v Jones, the Court of Appeal on this occasion concluded that it was bound by this High Court authority and proceeded to apply it to the facts of the case. Indeed, in technical terms, the ratio decidendi of Warburton v Whiteley was that Yerkey v Jones remains applicable until the High Court itself overrules that decision.” (O’Donovan 1996, p.323)

  • Nolan v Westpac Bank (1989) 51 SASR 496
    Supreme Court of South Australia: Leigertwood AJ

    Nolan mortgaged her home to secure the debts of her ex-husband’s business, believing that she guaranteed a loan of around $6000. However, she was in fact the principal debtor. There was a material misrepresentation by the ex-husband as to the financial viability of the business being secured, and misrepresentation by the branch manager of Westpac as to the nature of her liability. Thus the Court found unconscionable conduct on the part of the bank and set aside the guarantee.

    Leigertwood AJ

    “Notwithstanding the divorce [the ex-husband], over the years, has had considerable hold upon the plaintiff and during a period of nearly a year prior to the impugned transaction held considerable sway, as at relevant times was obvious to Baum [the bank manager], over the plaintiff in relation to her involvement in Mr Nolan’s financial affairs” (at p. 515)

    While there were a number of misrepresentations about the company secured and the nature of the transaction, Leigertwood AJ attributed the fault of misunderstanding to Nolan: “That she believed these things demonstrates how inadequate she was in dealing with business matters” (at p. 515).

  • Peters v Commonwealth Bank of Australia (1992) ASC 56-135
    Supreme Court of New South Wales: Brownie J

    Peters executed a mortgage on her home, and a guarantee, so as to provide security in respect of an advance to companies associated with her husband. She provided evidence that the couple became estranged because of his angry and bad tempered behaviour when he was affected by alcohol. Even some 6 years after their separation, she remained concerned for her physical safety, should he be affected by alcohol, and she was therefore concerned not to provoke him. The loan was for restaurant venture to be undertaken by himself and his girlfriend, which he subsequently defaulted on. She claimed relief for: undue influence on the part of her husband; unconscientious conduct by the defendant and statutory relief under the Contracts Review Act 1980.  She was a married woman who agreed to act as surety for her husband without understanding the effect of the transactions. The Court held a defence based on the principle in Yerkey succeeded as she had no understanding of the nature of the guarantee or the ex-husband’s business and the bank had reason to know this. Relief was also given under the Contracts Review Act. However, no undue influence was found.

    Brownie J

    “… he made representations to her, as likely as not by silence, as well as by spoken words; she was accustomed to leaving all business decisions to him, and she then did what he asked, either without discussion or with a discussion so limited as to be virtually no discussion; and she was concerned for physical safety, so as not to wish to provoke him; but the relationship was not one of undue influence. Rather, her actions seem to be fairly described as the free exercise of her will, with the qualification that she chose to do what he asked without asking questions” (at 89, 320).

    Feminist commentary

    Negative assessments of the approach taken to facts for doctrine of undue influence

    “For a woman in an ETD [emotionally transmitted debt] situation, undue influence is difficult to establish because many judges assume that a fairly high level of control by a male over a female is acceptable and hence not ‘undue’. For example, in Peters v Commonwealth Bank Australia.’ (Baron 1995, p.39)

    “Another example in which a judge appeared to consider that ‘a high level of control by a male over a female is acceptable and hence not ‘undue’ is found in the case of Peters v Commonwealth Bank of Australia” (Kaye 1997, p.48)

  • Guarantors – Problems and Perspectives, Discussion Paper (1992)
    Trade Practices Commission

    This report addressed issues regarding a range of persons who provide personal guarantors. It did not raise the specific issue of (or use the phrase) STD.

  • Multiculturalism and the Law (1992)
    Australian Law Reform Commission

    This report examined guarantees, among other legal issues impacting on a multicultural society. It recommended that protections in the form of better information for guarantors be implemented.

  • Equality before the Law: Women's Equality Report No. 69 | austlii
    Australian Law Reform Commission

    In 1994, the Australian Law Reform Commission released the influential Equality before the Law reports. The Commissioners who produced these reports were prominent feminist scholars, such as Reg Graycar, Jenny Morgan and Hilary Charlesworth, Rebecca Bailey-Harris, and judicial officers such as Justice Elizabeth Evatt, Deputy President Sue Tongue and Justice Margaret Beazley (consulting). Chapter 13, entitled ‘Sexually transmitted debt’, examines women and debt by looking at the problems faced by women guarantors who mortgage their share in the family home as security for their guarantee. The Report acknowledged the ‘developments and initiatives over the last 10 years which should help, to some extent, to identify and reduce the injustices created by sexually transmitted debt but it remains a problem’. The Report calls for changes to banking industry practice by amending the Australian Bankers’ Association Code of Banking Practice. The Code sets out minimum standards for banks such as:

    • the limitation of the guarantee to a fixed amount
    • provision by the bank to the guarantor of a warning of the guarantor's potential liability
    • provision by the bank of information concerning the primary borrower, with the permission of the borrower
    • conditions that if the borrower fails to give such permission the bank may only go ahead with the express agreement of the guarantor
    • a recommendation by the bank that the guarantor seek independent legal advice.

    However, the Report pointed out that the Code’s coverage needed to be extended to cover situations in which STD arises as it may not have any binding force for guarantors or for loans to family companies. The Report also recommended widening of the terms of reference of the Australian Banking Industry Ombudsman so that it could hear and address complaints about debts owed by companies and in respect of loans over $100,000, as STD frequently relates to these situations. The Report recommends increasing the requirements regarding provision of legal and financial advice to guarantors. One particular recommendation is that where the guarantee is secured by the family home, the bank must not proceed until the guarantor has obtained independent financial and legal advice which could be provided by a specialist women’s legal service. The bank must also independently meet with the guarantor to explain the transaction and satisfy itself that it is understood and freely consented to. Many of these recommendations were implemented into the recent Banking Code. Finally, the Report recommends funding for specific women’s legal advice services to meet the obvious needs created by the above processes.

  • Teachers Health Investments Pty Ltd v Wynne (1996) 2 ACCR 424; Burnswood and Others v Wynne
    Court of Appeal New South Wales: Mahoney P, Beazley JA, Waddell AJA

    Wynne provided a mortgage on her home as security for a loan for her husband and his company. The wife and husband had a history of poor marital relations. The trial judge found that, at the time of entering into the mortgage, the respondent was in a vulnerable position (mental health issues causing her anxiety) which the husband took advantage of in contriving to secure her entry into the mortgage. The trial judge held that Wynne was entitled to relief under Yerkey. However, he found that the lender’s conduct was not unconscionable in the circumstances and that the mortgage transaction was not unjust within the meaning of the Contracts Review Act 1980 (NSW).

    On appeal the Court of Appeal held that the equitable presumption in Yerkey no longer represents the law in New South Wales as the principles of unconscionability propounded in the common law provide adequate grounds of relief to wives who act as sureties for their husband's debts. The Court also held that the two matters which must be established to demonstrate unconscionable conduct were present in this case: that the respondent was under a special disability due to her highly vulnerable state and the appellant should have known of the respondent's special disadvantage and have been on notice that the transaction was perilous from the principal debtor's point of view and improvident from the respondent's point of view. The Court found the bank should have told her to obtain advice relating to the propriety of the transaction from her point of view. Failure to do so rendered its conduct unconscionable. The contract was also unjust within the meaning of the Contracts Review Act 1980 (NSW). The appeal was upheld.

    Feminist commentary

    Positive assessments

    “In many cases, the Yerkey principle has served to protect wives from being exploited and having their interests neglected. The degree of the exploitation and neglect varies from one case to another. For example, in Teachers Health Investments Pty Ltd v Wynne, where the husband used the threat of divorce to persuade his wife to act as guarantor, the court held that the wife was highly vulnerable and her will had been overborne.” (Wright 2006, p.68)

    Negative assessments

    “The outcome of Wynne's case is more sensitive to the relevant concerns. The trouble is that the decision assumes the fact situation to have been an isolated one. If the court had recognised its recurrent nature, it would hardly have rejected the case for a special rule.” (Duggan 1997, p.226)

  • Geelong Building Society (in liq) v Thomas & Anor (1996) Aust Contract R 90-068; BC9601710
    Supreme Court of Victoria: Hedigan J

    This case concerned the influence of the defendant’s father-in-law and husband in order to procure a guarantee for the father-in-law’s investments. Thomas was offered no explanation of the loan and claimed she executed it under undue influence, because she was given no advice and it was demanded when she was trying to feed children in her kitchen. The Court noted the power imbalance between the parties based on social and educational differences. It found no benefit followed to the guarantor, and there was no evidence that she had solicitors or that the bank believed she was advised. The Court referred to Yerkey v Jones but since this was not a husband and wife situation it stated that the principle could not apply. The Court expressly disagreed with NSW authority rejecting the principle. However, there was no need for the principle in this case, as the Court found that the bank had actual or constructive notice of the undue influence, and it set aside the mortgages.

    Hedigan J

    “I also accept her evidence about her trust and confidence in Fred Thomas, although I am of the view that it was accompanied by an excessive desire to please, an exaggerated awe and respect for his abilities and skills (which, with the benefit of hindsight, appear to have had some limitations) and her assumptions about his wealth. … In my view, her trust and confidence in [the husband and Fred Thomas] was also grounded in the different level of education, as she perceived it. Her husband Charles had been educated at Scotch College, occupied a managerial position in the father's company and ultimately became a State Manager for Operation at Seapak Transport. She would naturally have had substantial respect for her ex-father-in-law as her first employer as well. I conclude that in the first 10 years of their marriage her want of sophistication and schooling would have made her more than usually prone to reliance upon them both and accounted for her susceptibility to their influence in relation to her financial affairs. She, herself, described herself as overawed and intimidated by Fred Thomas because she believed he was a great businessman. His early influence had been sufficient to break up their original courtship. I am prepared to conclude that the first defendant, Charles Thomas, was well aware of the purposes for which this mortgage was required, namely, to support his father's entrepreneurial investment in the development of the townhouses…” (at pp. 46-47).

    “The general tenor of authority has been that the position of a wife guaranteeing the debts of her husband or of a company which the husband controls but in which she has an interest stand in a very different position to cases of the kind here applying, the provision of a surety mortgage without apparent benefit to the sureties. It should be said that these matters do not necessarily exclude the application of the principle in Yerkey v Jones…” (at p. 59).

Considering whether the transaction benefits the wife

In this period, courts applied a broad understanding of when the wife stood to benefit from the loan such that relief was often unavailable. The Yerkey principle requires that:

  • there to be influence or a lack of understanding,
  • no gain from the transaction, and
  • no attempt by the bank to explain the transaction or advise seeking advice by another.

Feminist commentators noted that courts often assumed passivity of the wife in relation to the financial affairs of the family. It was often assumed that the husband’s business would benefit the wife. If she was a director or shareholder of the company borrowing, this was often prima face evidence of the wife’s benefit even if it was clear that the company was exclusively run by the husband and she received no personal income.

  • European Asian of Australia Ltd v Kurland and Another (1985) 8 NSWLR 192
    Supreme Court of New South Wales: Rogers J

    A husband and wife gave their personal guarantees in respect of a company obtaining a loan with security of a second mortgage over their home. The house was registered in the name of the wife, Mrs Kurland, alone. The Supreme Court found there was evidence that all documents relating to the loan transactions were procured of Mrs Kurland by her husband and she signed them without knowing anything about the nature of the documents or the liability they imposed on her. She relied on the principle from Yerkey v Jones in order to release her from the guarantee. However, the Court held that the contracts were enforceable. The ‘invalidating tendency’ did not apply as the Court decided that she stood to benefit equally with her husband by virtue of their equal shareholding in the company and thus the transaction was not unconscionable.

    Rogers J

    In assessing the ‘special disability’ of the guarantor in order to fulfil an aspect of the unconscionable dealing doctrine, Rogers J “encountered great difficulty in attempting to describe Mrs Kurkland in a way which avoids giving offence.” His Honour described Mrs Kurland as “an archetype of a female with a total lack of interest in anything outside her household” (p. 197).

    Despite this factual conclusion about the case before him, Rogers J expressed the following strong concerns about the principle from Yerkey v Jones:

    “I feel compelled to say that in the year 1985 it seems anachronistic to be told that being female and a wife is, by itself, a sufficient qualification to enrol in the class of persons suffering a special disadvantage. . . . Were this to be correct, it would affix a badge of shame to this branch of the law. . . . That being a female spouse should place a person shoulder to shoulder with the sick, the ignorant and the impaired is not to be tolerated.”

    Feminist commentary

    Negative assessments – regarding approach to Yerkey principle

    “This judgment sees gendered differences as an anachronism. This view fails to see the inequalities in power associated with sex.” (Otto 1992, p.818)

    “[G]ender inequality has not been considered to be an appropriate basis for equitable relief [footnoting Kurland and Warburton]. As the cases on sexually transmitted debt reveal, classifications on the basis of gender are increasingly considered to be ‘anachronistic’, and gender-neutral doctrines such as the Amadio doctrine of unconscionable dealing are seen to be consistent with the promotion of gender equality.” (Dunn 2000, p.439)

    “Many judges have voiced fervent opposition to the ready assumption made by some legal counsel that wives exhibit especial vulnerability to influence. Rogers J in European Asian of Australia Ltd v Kurland asserted that this assumption placed married women ‘shoulder to shoulder with the sick, the ignorant and the impaired’.” (Wright 2006, p.68)

    “In these situations, the legacy of traditional gender roles is clearly evident” and yet unrecognised by the court. (Baron 1995, p.28)

    Negative assessments – regarding approach to evidence

    “Although the binding force of [‘special equity theory’] has been recognised and subsequently applied, in recent years the trend has been to narrowly interpret the ratio and distinguish the case to avoid its application” [citing this case]. (Bailey 1999, p.1014)

    “The standards against which the behaviour of women is compared seem to vary from case to case. Some women appear to have their behaviour judged by comparing it to an active masculine standard. For example, Mrs Kurland had a tertiary education and her failure to become involved in financial matters affecting her was measured against the involvement that a reasonable person (man?) with a tertiary education would have had.” (Howell 1995, p.100)

    “In some cases where the facts have suggested the rule could apply, the response has not been so circumspect. This is demonstrated by Rogers J in European Asian of Australia Ltd v Kurland …” (Fisher 1996, p.40)

  • ANZ Banking Group v Aileen Joan Bateman (nee Walls) (Unreported, 6194 of 1986)
    Supreme Court of Victoria: Kaye J

    This case concerned an appeal against an order made by a Master granting Bateman leave to defend on a summons for final judgment in a claim for possession of her home. She had given the mortgage over the home as security for a loan to herself and her husband. Bateman met her husband when he was in jail for a number of convictions for armed robbery. He received a first loan in order to partner in a printing business which subsequently failed. He then asked Bateman to be a guarantor for a further loan, telling her that he would face jail if he could not raise the money and threatening suicide. Bateman argued that she did not appreciate that she had guaranteed not only a loan of $50,000 but also an overdraft account which he subsequently used. The Court found that the bank did not have actual or constructive knowledge of the undue influence exerted by the husband and therefore no unconscionability could be imputed to the third party. The Court considered the Yerkey v Jones principle but distinguished it as Bateman was not considered a volunteer as the bank believed the transaction was a joint venture. The Court allowed the appeal and gave leave for summary judgment for the bank.

  • Commonwealth Bank of Australia v Cohen (1988) ASC 55-681
    Supreme Court of New South Wales: Cole J

    Cohen applied to set aside guarantees she gave to support business loans to her husband. Cohen had signed the documents at home at the request of her husband, and in circumstances where she did not know the perilous financial position of the company she was guaranteeing, and she did not receive independent legal advice. However, the Court found that the wife benefited from the transactions in the sense that she relied on her husband for income to support herself and her family, and the income was derived from the company, and the wife was aware that it was necessary to give the guarantee to enable the company to continue.

  • Carrington v Confirmers Pty Ltd v Akins (Unreported, 23 April 1991)
    Supreme Court of Victoria: Giles J

    Two married women (Mrs A and Mrs D) sought relief in respect of mortgages and guarantees they had given to support business loans to their husbands. The Court rejected their claims and yet held that the principles in Yerkey v Jones must be applied even if now ‘anachronistic as founded on an outmoded view of the husband and wife relationship.’ The Court found that while mere directorship of the company by the wife may not of itself constitute a benefit so as to remove possible relief, in this case the income of the family company was what the family lived on. Therefore the transaction could convey a substantial benefit to the wife. On the other grounds, there was no undue influence by the husband. To obtain relief on the ground of unconscionable conduct of the creditor, it would be necessary to show that the creditor had actual knowledge of the special disability of the other party and that it entered too readily into an improvident transaction placing a real burden on the other party. Where a wife guarantees the debt of a company by which her husband conducts business and the creditor does not know the precise arrangements between them or the benefits falling to the wife, more must be shown than knowledge of the creditor of the fact of the relationship. Finally the Contracts Review Act requires that it be established that the contract was unjust at the time when it was made, and whether there is injustice requires attention to the position of both parties. Relief was refused on all grounds.

    Giles J

    "... It is not essential that the benefit to the wife be through an interest in the debtor company. That can not be the test, since otherwise it is hard to see why a half interest in the debtor would suffice to exclude Yerkey v Jones wholly. ... In the present case the mortgages and guarantees were for the benefit of Mrs Akins in a real sense, in that they supported the business conducted by Mr Akins through various companies from which came the family income which she enjoyed." (at [47])

    Feminist commentary

    Negative commentary

    “By contrast with the muddled reasoning and scant regard for the doctrine of precedent in Akins, the earlier decision of a differently-constituted Court of Appeal in Warburton v Whiteley is a model of clarity and intellectual rigour...” (O’Donovan 1996, p.323)

  • ANZ Banking Group Ltd v Lefkovic (Unreported, 5929 of 1991)
    Supreme Court of Victoria: Tadgell J

    Mr and Mrs Lefkovic gave guarantees for a loan to their company. Mrs Lefkovic contended that she was asked by her husband to sign documents ‘as a director’ of the company. She did not know she was a director and thought what she was signing was a company document not a guarantee attracting personal liability. She attended at the bank and signed with no explanation of the document. She spoke but did not read English well. The Court applied Yerkey v Jones, but distinguished the case on these facts. The Court found no evidence that the bank required the husband to procure the guarantee from the wife, but simply asked the co-directors of the company to sign guarantees. The Court also found that, as co-director of the company the loan was made to, she could not be seen as a volunteer.

  • Story v Advance Bank Australia Ltd and Another (1993) 31 NSWLR 722
    Court of Appeal New South Wales: Gleeson CJ, Mahoney, Cripps JJA

    The bank took a mortgage over property owned by a company, the directors and shareholders of which were husband and wife. The mortgage, which was apparently regular on its face, was in fact a forgery. The forgery was a false signature to the attestation of the common seal of the director/wife affixed by the director/husband without his wife’s knowledge. There was a contest at the trial as to the context of the forged signature, and the evidence showed that this was something he had done on previous occasions. He asserted that he had his wife's express approval to place her signature on the mortgage in question, but his Honour did not accept that the husband had either express or implied authority to sign on behalf of his wife. However, the Court of Appeal held that the bank did not have actual or constructive knowledge of the forged signature, and the mere fact of defective execution of a mortgage document alone does not give rise to a personal equity to have the mortgage set aside. The loan benefited the company in which she was a director and shareholder and thus she was not a volunteer. Appeal allowed and no relief given.

    Feminist commentary

    Negative assessments

    “The Story case ... once again tells us very little about Mrs Story and the circumstances in which she came to be so uninvolved in her husband’s company ... the liability issue was determined in favour of the creditor once non-participation (being a matter of ‘choice’) and benefit were established.” (Fehlberg 1997, p353)

    “In the view of the writer the outcome of that case is critically dependent upon notions of shared property. It reveals an ambivalence about the independence of women such as Mrs Story, i.e. is this an independent claim or does this woman still retain the shared responsibility of family ... [m]oreover the notion of de facto control enables the court to achieve several outcomes:

    1. Equate the interests of the family with those of the corporation.
    2. Deny a separate claim for the corporate assets by Mrs S based on her contribution to the family.
    3. Consequently deny her labour rendered to the family as having any value.
    4. Privileging the rights of the creditor negotiated in the public sphere over Mrs S’s rights ‘negotiated’ within the private sphere. …

    The case also relies upon fictitious consents and arbitrary notions of control in order to come to the conclusions favourable to the creditor. Like the female passive director cases, it imposes a conception of a publicly negotiated right upon a domestic arrangement.” (Spender 1996, p.91)

  • Australia and New Zealand Banking Group Ltd v McGee (unreported 1994 - BC9400418)
    Supreme Court of Tasmania: Cox J

    McGee became a guarantor for her husband’s business borrowings. The context of this personal liability was, she claimed, that she went with her husband to the bank and signed some documents which were not explained to her. She was later asked to sign a mortgage over the property which was to secure the $40,000 overdraft (first mortgage). Again she argued she was given no explanation of the nature or contents of the document she signed. The Court found she had a right to rely on the principle expressed in Yerkey. However, the Court held that McGee had a sufficiently substantial shareholding to warrant a finding that she had a beneficial interest in the company’s debt. However, the extent of the shareholding was not known to McGee and her own perception of the benefit it attracted to her was that it was an indirect one flowing to her and her children from the profits made by the company and received by her husband whether as wages or as dividends or the like. Relief was refused.

  • St George Bank Ltd v Dunstan (Unreported, 10 November 1994)
    Supreme Court of Victoria: Hayne J

    A husband and wife signed guarantees with security of their home for a loan to a company in which they were majority shareholders. The Court applied Yerkey v Jones but distinguished these facts as his Honour found no reason for the bank to believe the wife was signing under a misunderstanding – there was a solicitor’s letter that she had been given advice (even if the solicitor was acting for the borrowers). There was evidence of actual undue influence of the husband but no evidence that the bank was aware of this. It was argued that the bank should have ensured the wife understood the transaction through giving her or telling to her receive independent advice. The Court found that there was nothing to say that adequate advice was not given, or that a reasonable lender should question the solicitor’s certificate even if the advice was given by a solicitor in a position of conflict. The Court also found that the wife was not a volunteer as she was a director and shareholder of the company. Relief was refused.

  • ANZ Bank v Dunosa Pty Ltd [1995] ANZ ConvR 86
    Supreme Court of Victoria: Hansen J

    Various guarantees were given for loans by the bank for business transactions of a family company, including personal guarantees secured by the family home. Dunosa had little education but she did have some business experience. Hansen J found of Dunosa: “She impressed me as a person of reasonable acumen and intelligence who would have been unlikely not to have been aware of the occasion and purpose for which documents were required or have been able to understand their nature and effect, even in general terms, if explained to her” (at p. 62). Dunosa claimed not to know about one of the companies granted a loan and the family trust, and that she had no involvement in the family business. The Court found she understood the nature of the contracts she signed, and was advised at the bank. No misrepresentation or influence by the husband was found. No relief was granted.

    Hansen J

    The company was not the “alter ego” of the husband and the loan supported the “business from which came the family income which she enjoyed” (at [61]).

  • Pyramid Building Society v Martin (1995) 1 ACCR 337
    Supreme Court of Victoria: Hansen J

    A husband and wife provided personal all moneys guarantees for a loan provided to a company in which the husband was a director. Neither party was found to be under a special disability. The Court applied Yerkey v Jones and found that the wife had limited education and was not involved in the business, and signed on request of the husband. There was evidence that a solicitor for the bank advised them, but there would have been no disability of the husband or wife evident to him. The solicitors for the borrowers were found not to be giving advice to the husband and wife as surety, but they were not on this basis on notice of any vitiating factor. The Court found that the loan to the business was “for the benefit of the family and herself,” and thus the wife was not found to be a volunteer. No relief was granted.

1998 - 2015: ‘Trust and confidence between marriage partners’ and other relationships

Speculation about the application of ‘wives special equity’ in Australia was put to rest in 1998 when it was endorsed by the High Court in Garcia v NAB. However, in doing so, the majority decision replaced Dixon J’s formulation with gender-neutral language of a principle concerned with the effect of ‘trust and confidence, in the ordinary sense of the words, between marriage partners’. The majority decision also left open the prospect of application of the principle to other ‘long term and publicly declared relationships short of marriage’. As this was only a hint, this section maps the slowness of acceptance by courts across Australia to extend the evidentiary principle to recognise STD in other relationships. This common law approach represents the current law of Australia.

  • Garcia v National Bank Limited (1998) 155 ALR 614 | austlii
    High Court of Australia: Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

    Mrs Garcia and her husband executed a mortgage in favour of the bank for the purposes of securing guarantees given for a loan to her husband’s business. Mr Garcia assured Mrs Garcia there was no ‘danger’ in the transaction and no explanation of the transaction was given by the bank. Mrs Garcia was a physiotherapist. However, there was evidence that her husband had belittled her and that she was trying to save their marriage. The Garcias divorced and Mrs Garcia sought a declaration that the guarantees were void as a result of undue influence. The trial judge found Mrs Garcia understood nature of guarantees but not the extent of this particular guarantee and that undue influence was established. The Appeal Court overturned this finding and also dismissed the principle from Yerkey. The appellant then appealed to the High Court. The High Court found that Mrs Garcia did not understand the nature of the transaction, the Bank was aware that Mrs Garcia was married to the creditor and, because they took no step to explain the transaction to her and knew of no independent advice to her about it, Mrs Garcia was entitled to relief.

    Gaudron, McHugh, Gummow, Hayne JJ

    [Yerkey v Jones] is one concerning what today is seen as an imbalance of power. In point of legal principle, however, it is actual undue influence in that the wife, lacking economic or other power, is overborne by her husband and goes surety for her husband's debts when she does not bring a free mind and will to that decision.” (at [23])

    The majority found that a principle that recognised the “trust and confidence, in the ordinary sense of the words, between marriage partners” was appropriate to retain in Australian law. Their Honours did not need to decide in the context of the (marriage) relationship before them but left open the prospect of the application of the principle to other “long term and publicly declared relationships short of marriage.”

    Literature cited by Gaudron, McHugh, Gummow, Hayne JJ

    • Howell 1995;
    • Fehlberg 1996;
    • Fehlberg 1997.

    Kirby J:

    “Thus the credit provider will be fixed with constructive notice if it knows facts sufficient to put it on inquiry as to the possibility of wrongdoing by the debtor and it fails to inquire. … A credit provider will be put on inquiry by a combination of two factors. (1) the transaction is not on its face to the personal financial advantage of the party offering the security; and (2) there is a relationship which is known, or which ought to be known, by the credit provider involving an emotional dependency on the part of the surety towards the debtor. The relationship of emotional dependency is singled out because of the possible effects of the sexual and/or relationship ties between the parties, on their financial dealings with each other. The fear of destroying or damaging the wider “relationship between persons makes these ties a ready weapon for undue influence". Moreover the informality of business dealings raises a “substantial risk” of misrepresentation as to the nature of the liability concerned. A credit provider will therefore be put on inquiry if it is aware that the surety reposes trust and confidence in the debtor in relation to his or her financial affairs. Cohabitation, as such, may alert the credit provider to the need for further inquiry. So may marriage, de facto marriage, or long term relationships with respect to sureties and borrowers of either sex. So may other information as to the relationships of the parties which comes to the notice of the credit provider or which it, out of prudence, requests and obtains. A rudimentary question as to the address of the parties and the discovery that they are (or have been) cohabitees would ordinarily be enough to set alarm bells ringing. This is because of the added vulnerability which cohabitation may bring to a relationship, otherwise unexplained, under which one person guarantees the debt of another by assuming their risks if things go wrong”.

    Literature cited by Kirby J:

    • ALRC 1994;
    • Pascoe 1997;
    • Fehlberg 1997;
    • Dodds-Streeton 1994;
    • Cretney 1992;
    • Duggan 1991.

    Feminist commentary

    Positive assessments

    “Unless the lender takes steps to explain the transaction to the wife (or ensure that someone else has done so) it will be unconscionable for it to enforce the security if in fact the wife did not understand it … [s]uch an analysis reveals that most criticism of Yerkey v Jones (or at least the most fierce) is misdirected. The presumption is one of trust between spouses – surely unobjectionable – rather than of wives’ collective incompetence.” (Stone 1999, p.606)

    “[T]he principle outlined by the majority in Garcia provides an excellent example of the advantageous use of stereotyping in the development and application of equitable doctrine. The basic premise of Garcia is that protection for married women against unscrupulous creditors who fail to fully explain the terms and conditions of financial agreements they may enter into must be sustained. The reason for this continued protection is simple: a significant number of married women in Australia are in relationships ‘marked by disparities of economic and other power’. … In Garcia, the benefits of the discrimination flowing from the new Yerkey principle are encapsulated in what we have described as ‘positive stereotyping’. The new doctrine allows for a healthier form of stereotyping to be used in order to uphold the sense of individual justice upon which the equitable jurisdiction is founded.’ (Haigh and Hepburn 2000, p. 305, 307)

    “The Garcia decision comprehensively examines the ambit of the Yerkey principle and categorically confirms its continuing relevance to the modern law of undue influence in Australia, despite marked changes in societal mores and gender roles since Yerkey was first handed down. The legal significance of this latest decision lies in its explication of the relational focus of the principle; according to the majority, the rationale underlying the special wives’ equity is not based on the subservience or inferior economic position of women, nor is it based upon their vulnerability to exploitation but rather, the unfairness that can flow from relationships of trust and confidence.” (Hepburn 1997, p.99)

    “The rule in Garcia although a narrow one, applying only to marital relationships where the wife is substantially regarded as a volunteer, nevertheless has the significant advantage of enabling a wife to resist enforcement of a guarantee on the grounds that she lacks full understanding of its effect. The rationale for the rule, as emphasised by the majority, was to be found in the special nature of the marriage relationship which is based on trust and confidence between the spouses.” (Pascoe 2006, p117)

    Negative assessments

    “[T]he judgments in Garcia … while appearing to take different approaches to the question of how best to promote equality, implicitly employ common stereotypes - or stock stories - about women's difference within marriage. … Kirby J recognises that the problem is one that primarily affects women, yet his failure to analyse this as a product of gender inequality leads, once again, to the invocation of an inherent women's difference despite the stated desire in the first part of his judgment to avoid gender stereotypes. Again Kirby J seems to imply that it is merely a matter of preference or choice for women as to whether they follow their husbands' advice… While the judgments all acknowledge, either implicitly or explicitly, that the phenomenon of sexually transmitted debt is a gendered one, their explanations, although different on their face, end up locating the problem in some notion of women's 'difference' rather than inequality. The missing factor in all three judgments is an analysis of the structural gendered inequality and, in particular, the economic factors, which contribute to the problem.” (Dunn 2000, p.444, 446, 447).

    “The decision in Garcia has attracted a fair share of academic criticism, as failing to discharge a judicial responsibility to provide practical guidance by refusing to provide particular guidance beyond the facts in the case before them and merely indicating what may be decided in future cases.” (Cockburn 2000, p.278)

    “Just as this decision provides no clear guidance on how to deal with such cases, it also shows that the Court has no clear understanding of how women are affected by legal doctrines nor of some of the important theoretical work on gender and equality that might assist it in developing a clear and principled approach to such issues…” (Graycar and Morgan 2001, p.721)

    “While the majority judges … left open the possibility that this special protection might be extended beyond wives … they confined their ruling’s scope to the situation of a wife in Jean Garcia’s position. However justifiable that might be in terms of the facts before the Court and as a matter of strict precedent, the modern High Court has engaged in law-making to varying degrees in cases with equally confined facts but also equally significant socioeconomic consequences. … In that sense, Garcia represents a missed opportunity for judicial leadership and community guidance.” (Horrigan 2003, p. 185)

  • State Bank of NSW v Hibbert and Also Groom v Hibbert [2000] NSWSC 628 | austlii
    Supreme Court of New South Wales: Bryson J

    No application to heterosexual de facto partner

    A woman entered into a guarantor arrangement for her de facto partner’s business endeavours. Her claims to relief were based in part on advice, misrepresentations and communications allegedly made by the bank to her partner and passed on to her so that she acted on them. The Court found the principles in Garcia are not available for de facto relationships. However, the Court ordered the mortgage be set aside under the Contracts Review Act 1980 (NSW) because it was unreasonably difficult to comply with the conditions of the loan. She was not equipped by her educational background or otherwise to make an analysis of the business feasibility of the contract. There was an absence of availability to her of any expert advice analysing the business feasibility of the contract. The practical effect of the provision of the contract was not accurately explained but was misrepresented to her by her partner’s tactics.

    Bryson J

    “The question whether a proposed guarantor is the wife of a proposed borrower is readily ascertainable; people usually behave responsibly in handling information like that. Their Honours in Garcia contemplated … the possibility that the principles applied in Yerkey v. Jones would find application to other relationships, … . Callinan J was unwilling to extend exceptional rules formerly applicable to guarantees by wives to co-habitees. On the other hand Kirby J was prepared to adopt a modified O'Brien principle which would apply to cases where there is a relationship of emotional dependence between the debtor and the person conferring the advantage… . Extension of the principles acted on in Garcia from wives to all married persons, or to all women, or all persons who are living in de facto relationships, or all persons who share domestic relationships without consideration in detail of the circumstances of those relationships does not appear to me to be a development which the law can realistically be expected to take. The only extension which seriously falls for consideration if persons other than wives are to be protected appears to me to be an extension of the kind addressed by Kirby J and acted on by the House of Lords in O'Brien, that is, to all cases where one co-habitee stands surety for the co-habitee's debts and the creditor is aware that there is an emotional relationship between the co-habitees, and to other relationships where the creditor is aware that the surety reposes trust and confidence in the principal debtor. As a matter of judicial authority there has been no such extension” (at [58-60]).

  • Liu v Adamson [2003] NSWSC 74 | austlii
    Supreme Court of New South Wales: Master Macready

    Applied to long term de facto partners

    A woman initiated proceedings to set aside a costs agreement and a mortgage that she entered into with the first defendant. One of the other parties to the costs agreement and mortgage was her de facto partner. She says that she executed the mortgage but that it was not explained to her at the time of execution. She found out several days later when she asked her partner what she had signed and he said that it was a mortgage. The woman’s claim was based upon the principles in Garcia, the fiduciary arrangement between her and the defendant, and also upon the Contracts Review Act 1980 (NSW). The Court had to decide if the law extended to de facto cases. In this case it was determined that Yerkey applied because the couple had been living together for 18 years and had 5 children. The Court held under Garcia relief should be refused because she was not a volunteer. However, the Court held pursuant to the Contracts Review Act 1980 (NSW) the guarantee and the mortgage should be set aside.

    Master Macready

    “There is a fundamental difficulty which presents itself with the plaintiff's claim in reliance upon these principles. That is that the relationship between the plaintiff and Mr Miller was not that of husband and wife. …The extension of the rule to the situation of a man and a woman living in a de facto relationship involves no difficulty with notice nor does it involve any constructive notice of the type rejected by the majority in Garcia. For a lender there is no more difficulty with enquiries than when the parties are married and the female is being asked to give a guarantee as she is shown on the title. The same trust and confidence which leads to the female surety receiving no sufficient explanation of the transaction’s purport and effect equally applies to a de facto relationship as to a marriage. The matter before me involves a simple long standing de facto relationship between a man and a woman and, indeed, the circumstances of it and the role each plays would fit many marriages. It has endured seventeen years and the parties to it have five children. It is clear that Mr Adamson [from the bank], given … the fact that he attended at the home of the plaintiff and Mr Miller to obtain her execution, well knew that they were living in a de facto relationship as a man and a woman. In these circumstances it seems to me that the principle in Yerkey v Jones should be extended to cover the situation presently before me” (at [13-14], [22-23]).

  • ANZ Banking Group Ltd v Alirezai; Alirezai v ANZ Banking Group Ltd & Anor [2004] QCA 6 | austlii
    Queensland Court of Appeal: McMurdo P, Wilson J, Jerrard JA (dissenting)

    Apply to a range of ’special relationships’

    This case did not concern a wife signing a guarantee, but rather a guarantee offered for a loan to a friend’s business. However, the plaintiff relied on Garcia principles (and Royal Bank of Scotland v Etridge (No 2)) and referred to STD. The Court found that the majority in Garcia applied the equitable ‘tendency’ to other ‘marriage like’ relationships. The appeal by the bank was dismissed.

    McMurdo P

    “I do not understand Garcia to necessarily limit appropriate equitable relief to marriage or marriage-like relationships, which involve what is sometimes referred to as sexually transmitted debt. What was important in Garcia was that the marriage relationship itself put the bank on notice that there was a relationship of trust and confidence between the debtor and the surety so that it was unconscionable for the bank to enforce the surety without having explained, or having had explained to the surety, the effect of the transaction. Special relationships of sufficient trust and confidence in which one party could abuse that trust and confidence so as to invoke equitable relief for transactions entered into by the other are not a closed category; they could, for example, arise in some parent-child relationships or perhaps in the relationship between a disabled person and carer; many other potential examples can be envisaged” (at [39]).

    McMurdo P referred to:

    • Kirby J’s judgment in Garcia at 430-31;
    • Horrigan 2003, 183-185.
  • Westpac Banking Corporation v Stevenson (Aka Jenette Honey Steveson) [2005] WADC 210 | austlii
    District Court of Western Australia: Muller DCJ

    Extend to father and daughter relationship

    A woman appealed a default judgment against her. She gave evidence that her parents' home was in danger of being repossessed by the mortgagee which led to her father persuading her to become the sole director of a shelf company he had acquired and which he explained would borrow the necessary funds to discharge the mortgage. The woman argued that the default judgment ought to be set aside: firstly, on the ground of undue influence on the part of the father and the absence of any endeavor by the bank to ensure that she received independent advice; second, in the absence of proof of undue influence, that she had an inadequate understanding of the nature of the transaction to which she had become a party, and, given the bank's knowledge of the relationship between father and daughter, it would be unconscionable to allow the contract to stand; and thirdly, that the transaction was unconscionable in all the circumstances for the purposes of s 51AB or s 51AC of the Trade Practices Act or, alternatively, s 12CB or s 12CC of the ASIC Act. The District Court held the default judgment should be set aside. The Court held Garcia was satisfied and it was unconscionable to enforce the guarantee.

    Muller DCJ

    “It was conceded that the decision in Garcia was based upon a relationship of husband and wife. Given the reasoning of the High Court, however, I see no reason why the relationship of father and daughter should not fall into the same category. A paternal relationship, like marriage, is based on trust and confidence and, in a business context, may lead to decisions being made by one party with little or no consultation with the other. In her affidavit the defendant asserted that she had nothing to do with the daily business affairs of the company and simply signed documents that her father asked her to sign in ignorance of what she was actually signing. As I have already said, she wanted to extricate herself from the position she was in and reached an agreement with her father to resign her directorship of the company” (at [13]).

  • Agripay Pty Limited v Byrne [2011] QCA 85 | austlii
    Supreme Court of Queensland Court of Appeal: McMurdo P, White JA, McMeekin J

    Extend to ‘all vulnerable parties in personal relationships’

    The husband borrowed money to invest in a tax avoidance agricultural managed investment scheme. There was some evidence that the benefits of this investment were to go into a joint superannuation fund for the couple. His wife guaranteed his loan. The Chief Justice at trial set aside the guarantee on the basis that it was unconscionable. The basis of this finding was that the first the wife knew that she was required to be involved in the scheme was when she was told she had some documents to sign so that her husband could take advantage of the investments. If she did not sign, he could not use the scheme to solve his tax problem. She did not read the application before she signed it as guarantor or receive independent advice before signing. She was upset and felt she was being ambushed. She had blind faith in her husband, notwithstanding his sometimes indifferent personal treatment of her. The couple were both doctors. The Court of Appeal dismissed the appeal and held that a principled application of the rule laid down in Yerkey and confirmed in Garcia requires that the lender be imputed with knowledge about the ‘trust and confidence’ in this relationship, and had to do more to ensure her informed consent. The lender had not provided any advice to her or ensured that that advice was given by an independent advisor. Arguments were raised by the appellant about the high levels of education of both and the general understanding of the wife about what she was guaranteeing and that the scheme financed was to benefit them both.

    McMurdo P

    “There seems to be no sound reason why these principles should be limited to wives entering into guarantees of their husbands' liabilities. Human weaknesses and unconscionable conduct are not limited to heterosexual marriage relationships. These legal principles should apply equally to all vulnerable parties in personal relationships” (at [4]).

    “It may seem odd that in this case a practising medical practitioner with some business experience can avoid the obligations of her guarantee under Garcia. But the respondent is not disentitled to the protection of the law because she is tertiary-educated. It must be remembered that the principles explained in Garcia over 13 years ago have long been the law in Australia. Commercial lenders like the appellant, which require partners of borrowers to guarantee their partners' loans, should be well aware of their legal obligations to ensure such guarantors understand the purport and effect of their guarantees and the transactions to which they relate” (at [27]).

    “The evidence before the primary judge was sparse, both as to the likelihood and extent of any profit to the joint superannuation fund or generally from the agricultural managed investment scheme. At best, it was that there was some prospect of an eventual profit which may have benefited the family unit if it remained functional; and some small portion of any eventual profit may have found its way to the joint superannuation fund. But the short term benefit of a lower tax bill and any profit received in the long term was essentially for Dr Murray Byrne. There was no clear evidence that the respondent would actually profit from the scheme. … The evidence favoured the conclusion that the prospect of any profit to the respondent was speculative. Even if she did receive some eventual modest benefit, it was likely to be neither direct nor immediate” (at [11]).

    White JA

    “Ultimately, cases where a wife seeks to be relieved of the burden of her contract of suretyship will depend on a close analysis of the particular facts. [The lender] submitted that the learned primary judge took an indulgent view of Dr Byrne’s want of understanding against her involvement in many of the financial activities of her husband. This is to elevate too highly those activities. The use of a family trust to protect assets in this case involved the purchase of two or three paintings by well known Australian artists. The learned primary judge’s acceptance of Dr Byrne’s limited involvement in the running of her husband’s medical practice was open on the facts. Her evidence that she attempted to bring some financial order into her husband’s affairs by managing the household bills from their joint account (required as a condition of her visa) was not challenged. But she was unable, apparently, to exercise any influence over him to plan for his tax obligations and her evidence of his purchase of a $390,000 car when he had looming liabilities suggests just how little influence she had. No matter how intelligent she might have been, the emotional pressure that she felt at the time the transactions were entered into was of a kind for which in part the rule had been developed and in respect of which the [lender] could relatively easily have dealt. … [The lender] also submitted that Dr Byrne gave no evidence to the effect that if fully informed and given time to reflect she would not have entered into the contract. She did not need to do so. This was not a defence of misrepresentation …” (at [66]).

  • Dowdle v Pay Now For Business Pty Ltd [2008] QSC 224 austlii
    Supreme Court of Queensland: Daubney J

    Applied to separated married couples

    A husband and wife refinanced their house so the husband could obtain a loan. The husband asked the wife whether she would assist in this regard. She agreed to stand as guarantor and provide a mortgage over the property. The bank sought to call on the guarantee and for possession of the home, calling for summary judgment on the terms of the contract. This application was rejected on the basis that there were arguably grounds for relief argued by the guarantor. (See trial decision.)

    Daubney J

    “I would not be prepared to find, on a summary basis, that the fact that Mr and Mrs Dowdle had separated is necessarily fatal to reliance on the Garcia principles. Whilst in many circumstances, separation is likely to bring to an end the relationship of trust and confidence that exists between parties to a marriage, this is not necessarily always so. One can readily conceive of an ‘amicable separation’ in which there continues to be a close relationship involving a significant degree of trust (Equally, I should add, one can easily conceive of a married couple who continue to reside together but whose relationship is, in fact, poisonous and completely devoid of trust and confidence.) Furthermore, a separation is, by definition, not irreversible. For the law to assume that the trust that exists between a married couple automatically dissolves the moment cohabitation ends would be artificial. Are the courts to assume, in the case of temporary separations, that the Garcia principle applies one week while the parties are cohabiting, but ceases the next when they are not, only to revive a month later when the parties are wholly or partially reconciled? This aspect of the relationship between the Plaintiff and Mr Dowdle clearly requires investigation at trial”(at [35]).

  • Morrison & Ors v 180 Capital Finance Pty Ltd (No. 2) [2012] VCC 1162 | austlii
    County Court of Victoria: Ginnane J

    Apply to ‘close personal relationships’

    A woman signed guarantees and indemnities and other documents in respect of the loan for her de facto partner. She argued the equitable defence of unconscionable conduct pursuant to Yerkey and Garcia. The County Court held she understood the effect of a guarantee. The Court cited White JA in Agripay Pty Ltd v Byrne that the intelligence of the wife does not rebut the fact that the bank should be aware of emotional pressure within a relationship. The lender knew she took no steps to advise herself and did not ensure she received advice. However, relief was refused on the basis that Morrison transacted without any influence and was aware of the nature of transaction she entered.

    Ginnane J

    “… I proceed on the basis that the equitable defence can apply to close personal relationships, where trust and confidence exist” (at [21]).

  • Schultz v Bank of Queensland [2014] QSC 305 | archive.sclqld.org.au
    Supreme Court of Queensland: Jackson J

    A wife guaranteed a loan made to the corporate trustee of a discretionary family trust which was controlled by her former husband. She relied on the principle from Yerkey v Jones in her claim for relief from the contract and an alternative claim based on statutory unconscionable conduct by the bank. She had previously provided a mortgage as security for a loan, and obtained independent legal advice at that time. She did not receive advice in relation to two guarantees provided for a loan to the trust but signed a waiver provided by the bank. It was agreed that the bank representative told her to seek legal advice and that the document was a guarantee and for the amount specified. Her evidence was that when she asked she was not told about the terms except that if her husband defaulted she would be asked to repay the loan. After some consideration of the law, Jackson J found that Schultz was not a volunteer.

    Jackson J

    “The “Yerkey v Jones equity” is an equity raised in favour of a wife who enters into a transaction as surety for the debts of her husband or her husband’s company. To some, it might seem an anachronism in a 21st century world. But it was affirmed by the High Court as recently as 1998 in Garcia v National Australia Bank (“Garcia”). There are dicta which urge that the principle extends beyond the protection of a wife to analogous relationships of trust and confidence, but I am not concerned with that question” (at [1]).

1998 - 2015: Considering whether the transaction benefits the wife/partner

Acknowledging feminist critique, the High Court in Garcia v NAB revised what constitutes a benefit for the wife/partner to take a less technical and more substantive approach. Courts were required to look for evidence of substantial benefit to the wife/ partner in the transaction and not to automatically assume continuity of interest between husbands and wives. As a result of a different inquiry, directorship of or shareholding in the borrowing company did not always exclude relief. In Queensland, in Agripay Pty Ltd v Byrne (in 2011) the Court of Appeal held that the bank must establish that the (de facto) wife received a ‘direct or immediate gain’ from the transaction in order to assert that she is not a ‘volunteer’. Nevertheless, the volunteer requirement is often the basis for spouses failing to gain relief even where there is evidence of relationship pressure affecting their consent or understanding.

  • Garcia v National Bank Limited (1998) 155 ALR 614 | austlii
    High Court of Australia: Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

    Mrs Garcia and her husband executed a mortgage in favour of the bank for the purposes of securing guarantees given for a loan to her husband’s business. Mr Garcia assured Mrs Garcia there was no ‘danger’ in the transaction and no explanation of the transaction was given by the bank. Mrs Garcia was a physiotherapist. However, there was evidence that her husband had belittled her and that she was trying to save their marriage. The Garcias divorced and Mrs Garcia sought a declaration that the guarantees were void as a result of undue influence. The trial judge found Mrs Garcia understood the nature of guarantees but not the extent of this particular guarantee and that undue influence was established. The Appeal Court overturned this finding and also dismissed the principle from Yerkey. The appellant then appealed to the High Court. The High Court found that Mrs Garcia did not understand the nature of the transaction, the Bank was aware that Mrs Garcia was married to the creditor and, because they took no step to explain the transaction to her and knew of no independent advice to her about it, Mrs Garcia was entitled to relief.

    Gaudron, McHugh, Gummow, Hayne JJ

    [Yerkey v Jones] is one concerning what today is seen as an imbalance of power. In point of legal principle, however, it is actual undue influence in that the wife, lacking economic or other power, is overborne by her husband and goes surety for her husband's debts when she does not bring a free mind and will to that decision.” (at [23])

    The majority found that a principle that recognised the “trust and confidence, in the ordinary sense of the words, between marriage partners” was appropriate to retain in Australian law. Their Honours did not need to decide in the context of the (marriage) relationship before them but left open the prospect of application of the principle to other “long term and publicly declared relationships short of marriage.”

    Literature cited by Gaudron, McHugh, Gummow, Hayne JJ

    • Howell 1995;
    • Fehlberg 1996;
    • Fehlberg 1997.

    Kirby J

    “Thus the credit provider will be fixed with constructive notice if it knows facts sufficient to put it on inquiry as to the possibility of wrongdoing by the debtor and it fails to inquire. … A credit provider will be put on inquiry by a combination of two factors. (1) the transaction is not on its face to the personal financial advantage of the party offering the security; and (2) there is a relationship which is known, or which ought to be known, by the credit provider involving an emotional dependency on the part of the surety towards the debtor. The relationship of emotional dependency is singled out because of the possible effects of the sexual and/or relationship ties between the parties, on their financial dealings with each other. The fear of destroying or damaging the wider “relationship between persons makes these ties a ready weapon for undue influence". Moreover the informality of business dealings raises a “substantial risk” of misrepresentation as to the nature of the liability concerned. A credit provider will therefore be put on inquiry if it is aware that the surety reposes trust and confidence in the debtor in relation to his or her financial affairs. Cohabitation, as such, may alert the credit provider to the need for further inquiry. So may marriage, de facto marriage, or long term relationships with respect to sureties and borrowers of either sex. So may other information as to the relationships of the parties which comes to the notice of the credit provider or which it, out of prudence, requests and obtains. A rudimentary question as to the address of the parties and the discovery that they are (or have been) cohabitees would ordinarily be enough to set alarm bells ringing. This is because of the added vulnerability which cohabitation may bring to a relationship, otherwise unexplained, under which one person guarantees the debt of another by assuming their risks if things go wrong”.

    Literature cited by Kirby J:

    • ALRC 1994;
    • Pascoe 1997;
    • Fehlberg 1997;
    • Dodds-Streeton 1994;
    • Cretney 1992;
    • Duggan 1991.

    Feminist commentary

    Positive assessments

    “Unless the lender takes steps to explain the transaction to the wife (or ensure that someone else has done so) it will be unconscionable for it to enforce the security if in fact the wife did not understand it … [s]uch an analysis reveals that most criticism of Yerkey v Jones (or at least the most fierce) is misdirected. The presumption is one of trust between spouses – surely unobjectionable – rather than of wives’ collective incompetence.” (Stone 1999, p.606)

    “[T]he principle outlined by the majority in Garcia provides an excellent example of the advantageous use of stereotyping in the development and application of equitable doctrine. The basic premise of Garcia is that protection for married women against unscrupulous creditors who fail to fully explain the terms and conditions of financial agreements they may enter into must be sustained. The reason for this continued protection is simple: a significant number of married women in Australia are in relationships ‘marked by disparities of economic and other power’. … In Garcia, the benefits of the discrimination flowing from the new Yerkey principle are encapsulated in what we have described as ‘positive stereotyping’. The new doctrine allows for a healthier form of stereotyping to be used in order to uphold the sense of individual justice upon which the equitable jurisdiction is founded.’ (Haigh and Hepburn 2000, p. 305, 307)

    “The Garcia decision comprehensively examines the ambit of the Yerkey principle and categorically confirms its continuing relevance to the modern law of undue influence in Australia, despite marked changes in societal mores and gender roles since Yerkey was first handed down. The legal significance of this latest decision lies in its explication of the relational focus of the principle; according to the majority, the rationale underlying the special wives’ equity is not based on the subservience or inferior economic position of women, nor is it based upon their vulnerability to exploitation but rather, the unfairness that can flow from relationships of trust and confidence.” (Hepburn 1997, p.99)

    “The rule in Garcia although a narrow one, applying only to marital relationships where the wife is substantially regarded as a volunteer, nevertheless has the significant advantage of enabling a wife to resist enforcement of a guarantee on the grounds that she lacks full understanding of its effect. The rationale for the rule, as emphasised by the majority, was to be found in the special nature of the marriage relationship which is based on trust and confidence between the spouses.” (Pascoe 2006, p117)

    Negative assessments

    “[T]he judgments in Garcia … while appearing to take different approaches to the question of how best to promote equality, implicitly employ common stereotypes - or stock stories - about women's difference within marriage. … Kirby J recognises that the problem is one that primarily affects women, yet his failure to analyse this as a product of gender inequality leads, once again, to the invocation of an inherent women's difference despite the stated desire in the first part of his judgment to avoid gender stereotypes. Again Kirby J seems to imply that it is merely a matter of preference or choice for women as to whether they follow their husbands' advice… While the judgments all acknowledge, either implicitly or explicitly, that the phenomenon of sexually transmitted debt is a gendered one, their explanations, although different on their face, end up locating the problem in some notion of women's 'difference' rather than inequality. The missing factor in all three judgments is an analysis of the structural gendered inequality and, in particular, the economic factors, which contribute to the problem.” (Dunn 2000, p.444, 446, 447).

    “The decision in Garcia has attracted a fair share of academic criticism, as failing to discharge a judicial responsibility to provide practical guidance by refusing to provide particular guidance beyond the facts in the case before them and merely indicating what may be decided in future cases.” (Cockburn 2000, p.278)

    “Just as this decision provides no clear guidance on how to deal with such cases, it also shows that the Court has no clear understanding of how women are affected by legal doctrines nor of some of the important theoretical work on gender and equality that might assist it in developing a clear and principled approach to such issues…” (Graycar and Morgan 2001, p.721)

    “While the majority judges … left open the possibility that this special protection might be extended beyond wives … they confined their ruling’s scope to the situation of a wife in Jean Garcia’s position. However justifiable that might be in terms of the facts before the Court and as a matter of strict precedent, the modern High Court has engaged in law-making to varying degrees in cases with equally confined facts but also equally significant socioeconomic consequences. … In that sense, Garcia represents a missed opportunity for judicial leadership and community guidance.” (Horrigan 2003, p. 185)

  • Commonwealth Bank of Australia v Khouri [1998] VSC 128 | austlii
    Supreme Court of Victoria: Harper J

    A wife became a guarantor for her husband’s business loan. The Court concluded that the bank would be "obtaining an unconscientious advantage" over the wife if it were permitted to enforce that security. The Court found Yerkey and Garcia were applicable. They held that the wife was not aware that she was signing a guarantee or a second mortgage in support of it; and that she believed only that she was signing documents in support of a $10,000 overdraft. Furthermore, the bank did not explain the purport or effect of the documents to her, nor did it seek to protect her interests in any way notwithstanding that they knew that the marriage relationship existed and that her husband had not informed her of what the transaction was about. The Court found that the she was a volunteer to the transaction because, although she was a director of the company, it was a business run by and under the control of her husband and in which she took no active interest. She was pre-occupied with raising her three children and any benefit she gained came to her not as of right, but as the result of discretion by her husband. Relief was refused.

  • Commonwealth Bank of Australia v Horkings [2000] VSCA 244 austlii
    Victorian Court of Appeal: Winneke P, Phillips, Buchanan JJA

    This is the appeal from the decision in Commonwealth Bank v Khouri (above).

    The Court of Appeal dismissed the appeal by the bank. Winneke P agreed with respondent counsel that ‘… the facts, as his Honour [at trial] found them to be, were - to all intents and purposes - indistinguishable from the facts found in Garcia's case’ (at [55]).

  • ANZ Banking Group Ltd v Pham (No. 2) [1999] VSC 503 | austlii
    Supreme Court of Victoria: Warren J

    A husband and wife from Vietnam worked full time in the various family businesses. The wife entered into a guarantee for a business loan. Another family member who was the daughter-in-law of the wife, also from Vietnam, entered into a guarantee for the family business. The daughter-in-law received very limited education in Vietnam and upon arrival in Australia attended English classes for a period of six months. Both wife and daughter-in-law relied on Yerkey and Garcia to have the guarantee set aside. The Court held both the wife and daughter-in-law understood the nature of mortgage, and the guarantee. Furthermore, as members of the Pham family and as a part of the commercial network they stood to gain from the transactions. Relief was refused.

  • Armstrong v Commonwealth Bank of Australia (unreported 1999 - BC9903751)
    Supreme Court of New South Wales: Hamilton J

    Armstrong guaranteed the liabilities of her husband’s company by providing mortgages over her properties. She was subject to domestic violence by her husband and on one occasion she stated that he had assaulted her before demanding she sign the documents. She stated: "I was concerned that if I did not do what my husband wanted me to do I believe I would have been subjected to abuse and physical violence. Eventually I signed the documents to keep the peace." The Court found the mortgages were procured by the actual undue influence of her husband. The Court also held that she was a volunteer in relation to the documents even though she was a shareholder in the company. Hamilton J concluded that any benefit from the transaction was “conferred on her as a wife and mother and not as a shareholder in or in any way by reference to the company”. The Court found that whilst the Bank did not know of the particular circumstances in which the documents were executed, it knew that they were married. That, according to Yerkey and Garcia, is sufficient. The Bank gave the documents to the husband to go and obtain his wife's signature, or in the case of the acknowledgments, posted them to their matrimonial home. The husband's forthright, impatient and forceful personality must have been apparent to those who dealt with him. The guarantees were set aside.

    Feminist commentary

    Neutral assessments

    “[I]t is particularly interesting to note some cases involving guarantees where it was clearly impossible for the court to ignore that violence. For example, in Armstrong v Commonwealth Bank of Australia Mrs Armstrong disputed her liability for her husband’s business debts. She claimed she signed the relevant documents in a situation of actual undue influence… Hamilton J also accepted that Mrs Armstrong ‘signed [the relevant documents], whatever legal advice she had then, under the real fear of a repetition of the actual violence which had by then been applied to her.’” (Graycar et al 2001, p.184)

  • State Bank of NSW v Kit Cheng Chia and Peng Tin Chia; Peng Tin Chia v Kenneth John Rennie and Anor [2000] NSWSC 552; (2000) 50 NSWLR 587 | austlii
    Supreme Court of New South Wales: Einstein J

    A husband and wife from Singapore worked together. She was a certificated general nurse. She had assisted her husband in his practice as a medical practitioner. The bank claimed repayment from the wife as surety of moneys said to be owing to it by the husband. The wife claimed that she was ignorant of the contents of the mortgage. She had not seen the mortgage document prior to its production by her husband for execution by her. She was not afforded any opportunity to negotiate for, reject or make any alteration to the terms of the mortgage, or offered any legal advice. However, the Court held that the wife failed to establish the elements of undue influence as she had a material understanding of the transaction and risk. No relief was granted.

    Einstein J

    Einstein J found that the requisite understanding of the guarantor will include,

    “… at least an understanding of the fact of liability, the general extent of liability and the possible consequences of default … . However, it is not productive of an equity that the wife misunderstood or failed to appreciate the degree of risk associated in the transaction, or the improvidence or unwisdom of the uses to which the money so secured will be put: Yerkey v Jones (at 686). Further, the wife’s misapprehension must be of a material matter: Bank of Victoria Ltd v Mueller (at 648); that is, material to the liability the creditor wishes to impose upon the wife” (at [169]).

    Einstein J summarised the case law in respect of when a wife will be considered a ‘volunteer’:

    “… It is not sufficient that the wife has received consideration as would be recognised in the law of contract: Bank of Victoria v Mueller (at 649). The consideration for the guarantee must be of ‘real benefit’ to the wife: Garcia (at 412). Incidental benefit which accrues generally to the family of which the wife is a member is not sufficient benefit to render a transaction which does not otherwise contain a ‘real benefit,’ non-voluntary… . Where the wife expects to reap direct profit from the transaction, the transaction cannot be said to be voluntary… . Neither can it be said to be voluntary where the monies secured by the guarantee are used to purchase an asset in which the wife is equally interested with her husband… . However, where the interest of the wife is a shareholding in the company through which her husband conducted his business and in which she has no real involvement, then a guarantee given by the wife over that company’s debts will be voluntary… . But where the wife has an active and substantial interest in the conduct of, and the fortunes of, the business run by her husband, she will not be a volunteer in relation to any guarantee over the debts of that business… . Where the transaction is not ex facie for the benefit for the wife, then the onus will lie on the party seeking to enforce the security to show that the wife was not, relevantly, a volunteer…” (at [169]).

  • Commonwealth Bank of Australia v Ridout Nominees Pty Ltd & Ors [2000] WASC 37 | austlii
    Supreme Court of Western Australia: Wheeler J

    A number of family members provided a guarantee for family companies. The wife providing a guarantee argued that she did not receive independent advice and did not understand the very complex set of transactions. The bank relied on the husband to obtain the wife’s execution of the mortgage and did not satisfy itself that she had advice or explain the transaction to her. The Supreme Court held the wife satisfied the requirements of undue influence and the bank knew about her marriage relationship applying Yerkey and Garcia.

    Wheeler J

    “The transaction was voluntary in the sense that while the family businesses obtained a benefit from it and, in that sense, as a practical matter, there might have flowed an indirect benefit to Dorothy, she gave the guarantee in her personal capacity and in her personal capacity received no benefit from it” (at [207]).

  • Bylander v Multilink [2001] NSWCA 53 | austlii
    Court of Appeal New South Wales: Handley, Giles, Heydon JJA

    A wife became a guarantor for her husband’s company. The trial judge held that a Yerkey defence was not open on the pleadings but the defence failed in any event because she was not a volunteer. The Court of Appeal held the Yerkey defence was open to the wife on the pleadings and was established. The wife, in giving the guarantee, was a volunteer. The fact that the wife was a director and shareholder in the borrower company, and that the loan funds were paid into the joint bank account of the husband and the wife before the bulk of the funds were paid out, almost immediately, for the husband's business purposes, did not prevent the wife being, in substance, a volunteer for the purposes of the defence.

  • Commonwealth Bank of Australia v Longo [2001] VSC 191 | austlii
    Supreme Court of Victoria: Hansen J

    In this case an Italian husband and wife entered into mortgages. The husband admitted signing the first and second mortgages but alleged that he did so under the actual undue influence of his wife. He disclaimed any case of unconscionability based on Garcia and expressly confined the defence to the plea of undue influence. He argued that his wife spoke better English than him (he claimed no literacy in English); that she dealt exclusively with the Bank; that he relied on her to protect his interest and explain matters; that she put emotional pressure on him to sign documents; that she did not explain relevant matters including the documents; and he signed the documents at her request, without independent advice, trusting in and relying upon her judgement that it was in his interest to do so. He alleged that the Bank knew or ought to have known of these matters.

    The Supreme Court held there was no element of diversion of profit or money from him to her. There was no deception or undue influence.

  • Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413 | austlii
    Court of Appeal New South Wales: Beazley, Santow JJA, Campbell AJA

    A husband and wife gave a mortgage over their jointly owned home as security for a loan. Of that about $470,000 was applied in discharge of the existing mortgage over the property. The wife was unaware of how the balance of the monies were utilised. The wife appealed the decision of the trial judge who found in favour of the bank enforcing a mortgage. On appeal the Court of Appeal held she had not established an entitlement to relief under Yerkey. The respondent did not have express notice or any other information sufficient to put it on notice that the appellant was a volunteer. However, the Court held she was in a special position of disadvantage. There was evidence that her husband was domineering, non-consultative about family decisions and was aggressive and intimidating. Marital difficulties continued until about 1992 when she attempted suicide. She had little education and was illiterate. She had no income and this was a large borrowing secured over her only asset. This was apparent to the respondent from the loan application form and sufficient to put the respondent on notice of the appellant’s lack of capacity to meet the mortgage repayments and thus of the unconscionability of the transaction. Furthermore, the circumstances were also sufficient to make the mortgage contract unjust: Contracts Review Act 1980 (NSW).

    Beazley JA

    “In my opinion, notwithstanding that the respondent did not have knowledge of the appellant’s lack of education and her language and domestic difficulties, her lack of income, in the circumstances of this transaction – that is a large borrowing secured over her only asset, in circumstances where the application form failed to disclose any income for either husband or wife – placed her in a special position of disadvantage. Though the full extent of that special position of disadvantage was not known to the respondent, nonetheless, the absence of any relevant financial information was sufficient to put the respondent on notice of the appellant’s lack of capacity to meet the repayment obligations under the mortgage. That left as the only source of repayment the selling of her only asset, as again the respondent must be taken to have known” (at [56]).

    Santow J

    “Because relief is available under the wider doctrine of unconscionability, for the reasons stated by Beazley JA, it has not been necessary to consider whether the form of the transaction should matter. Here the lender lends under a transaction where the money is intended to go to the husband, though framed in terms rendering husband and wife jointly liable as co-principals. Such a situation may, in the eye of equity, involve a transaction of guarantee or, as sometimes described, constructive suretyship” (at [92]).

  • Brueckner v The Satellite Group (Ultimo) Pty Ltd and Ors [2002] NSWSC 378 | austlii
    upreme Court of New South Wales: Campbell J

    A wife became guarantor for her husband’s commercial transactions. At the time she felt she had no choice. As she understood it, her husband’s bankruptcy meant that he could not be employed by other people, the project was one which her husband really wanted to be involved in. The wife gave evidence that she never attended the offices from where any of the companies conducted their business, except on a few occasions when she would take the children in to see her husband. She never received notices of meetings of any of the companies of which she was a director. She was never a signatory on the cheque accounts of any of the companies, and was never consulted by anyone about any business matters relating to the companies. The Court held she succeeded in making out the Garcia defence and she was relieved her from liability under the guarantee. Also, the Court found undue influence between her and her husband and she did not receive independent advice. Campbell J approved of the principle that where the wife is a non-participating director and the benefit accruing to her came at the exercise her husband's discretion because he controlled the company, she was a volunteer.

  • Burrawong Investments P/L v Lindsay & Anor [2002] QSC 82 | austlii
    Supreme Court of Queensland: Muir J

    A wife became a guarantor for her husband’s business endeavours. She asserted that the documents she signed at the meeting were not explained to her. She said that at no time was she ever told that she and her husband were borrowing money or that they were guaranteeing a loan or that the mortgage would have to be provided over her property. The Supreme Court held there were no allegations in the pleadings about any undue influence by her husband, about any failure on her husband’s part to give appropriate explanations or asserting that the proposed transaction was for his and not her benefit. Nor was she a volunteer. She stood to benefit from the proposed transaction equally with her husband and it was entered into with a view to extricating the defendants from the financial predicament they found themselves in over the land. The Court held Yerkey could not succeed. An action under the Contracts review Act 1980 (NSW) was also brought. However, the Court held it was not established that the loan agreement was "unconscionable harsh or oppressive”.

  • Rapp, Rapp & Rapp v Li [2004] SADC 27 | austlii
    District Court of South Australia: Clayton J

    A wife became a guarantor for her husband’s business activities. She contended that the mortgage agreement was not binding upon her because she did not understand the agreement. The District Court, rejected her defence under Yerkey and held if she did misunderstand the purport of the document which she signed, that could only have been because of carelessness on her part. She was experienced in business matters and had at least her solicitor and husband to explain the documents to her if anything needed explaining. She was not a volunteer. She received good consideration for the transaction, namely, the shares in the companies which received the loans.

  • Dubois v Ong & Anor [2004] QCA 185 | austlii
    Supreme Court of Queensland: Williams JA, Muir, Mullins JJ

    A wife became a guarantor for her husband’s business activities. The primary judge found the existence of a triable issue on the part of the wife on her contention that it would be unconscionable to enforce the guarantee against her by application of Garcia. The wife was Chinese speaking and unfamiliar with documents. She also swore that she did not read the documents; that they were not explained to her; and that she received no advice about them.The argument by the lender in the appeal was that, having regard to the particular facts of the case, there was no obligation on the appellant to either explain the terms of the guarantee or to be satisfied that appropriate explanation of such terms had been given. The foundation of the argument was that the wife being a director and shareholder of the company was not a volunteer and that one of the necessary bases of unconscionability under the principles stated in Garcia was therefore lacking. The Supreme Court disagreed and dismissed the appeal.

  • Commonwealth Bank of Australia v Anna Maria Crowe [2004] NSWSC 330 | austlii
    Supreme Court of New South Wales: James J

    A wife became a guarantor for her husband’s bank loan and other commercial transactions. She argued she could resist the bank’s claims under the principles stated in Yerkey or Amadio or under the provisions of the Contracts Review Act 1980 (NSW). She argued she had little education with only basic language skills in English and with no commercial or business experience, and did not understand the nature of the transactions she entered into. She was the sole owner of the house over which she gave the mortgage and the house was her only substantial asset. She claimed that although she was a director of and a shareholder in the company, the business carried on by the company was in reality her husband’s business. The Court found that she was not a volunteer as she was a joint owner of the business for the purposes of applying Yerkey, and she did not suffer from a disability or one that was known to the bank. The Court did not accept the wife’s evidence that at the time she granted the mortgage she did not understand what a mortgage was, or that she entered into some of the transactions because she was afraid of her husband and considered that she no choice. She had received advice from a solicitor and the bank had the solicitor’s certificate. Despite a claim that the solicitor was not ‘disinterested’ as he advised husband and wife, the court accepted the solicitor’s account. Relief was refused.

  • Willis and Bowring v Ziade Investments No. 2 and 2 Ors [2005] NSWSC 952 | austlii
    Supreme Court of New South Wales: White J

    Both the husband and wife were personal guarantors for the husband’s business. The wife became the director and sole shareholder. She contended that her guarantee was not binding because she provided it to support her husband’s business activities, she did not understand its purport and effect, she did not receive independent advice in respect of it, and no one ever spoke to her about her guarantee. She relied upon Garcia. The Supreme Court held that she was not a volunteer. The Court held she understood the purport and effect of what she signed. The fact that the solicitor who explained the documents to her and the potential consequences of her signing the documents was her husband’s uncle, and not a stranger to her, did not mean that she could escape liability on her guarantees. Relief was refused.

  • Kasparian v Burns [2007] NSWSC 895 | austlii
    Supreme Court of New South Wales: Bell J

    A wife became guarantor for her husband’s business loan. She requested the setting aside of the loan agreement and the guarantee on the ground that it would be unconscionable for the plaintiffs to enforce them against her, or pursuant to the provisions of the Contracts Review Act 1980 (NSW).

    The wife had not been involved in the affairs of any of the companies of which she had been a director. She had a general appreciation of the fact that directors of companies are subject to legal duties. She relied on her husband to conduct the affairs of the companies. She recalled signing a document without anyone explaining the meaning of it to her. She claimed it would be unconscionable to enforce the guarantee. The Court held the guarantee was not unjust under the Contracts Review Act. Furthermore, she was not a volunteer. The lenders’ failure to inquire whether the wife had been independently advised about her role as guarantor of the loan did not give rise to an entitlement to have the guarantee set aside by reference to the principles explained in Yerkey and Garcia. Relief was refused.

  • CBFC Ltd v Fadhel Ahmed & Myoungsuk Oh [2008] VCC 4 | austlii
    County Court of Victoria: Anderson J

    A wife became guarantor for her husband’s business. She says that she was aware that she was required to attend the business premises of the company in order to execute loan documents. The wife said that she was not offered any explanation about the nature of the documents. She had her infant son with her at the bank and her husband was anxious to conclude the business. She relied on Yerkey and Garcia to have the guarantee set aside. The County Court held the wife did not establish that the lender failed to take steps to explain the transaction to her or to offer her the opportunity to receive independent legal advice before proceeding to execute the documents. She was also involved with the business, and was not a volunteer, rather, she was more of a “family representative”. Relief was refused.

  • Spina v Conran Associates Pty Ltd; Spina v M and V Endurance Pty Ltd [2008] NSWCA 326 | austlii
    Supreme Court of NSW: Austin J

    The plaintiff in this case, Angelina Spina, was a 91-year-old widow living in a nursing home, who had only a very limited understanding of written and spoken English. Her son was Michael (deceased at the time of the proceedings). Michael's widow, Sarina Spina, provided a guarantee for one of the loans in dispute. The proceedings related to two mortgages over the Angelina’s property. The mortgages arose out of the purported exercise by Michael of an enduring power of attorney granted to him by his mother. The money borrowed (by the mother) under the mortgages was used in a business conducted by Michael of which he and his wife were directors. The company went into liquidation in May 2006. Angelina resisted possession of her mortgaged properties and Sarina sought orders to set aside the guarantee she had given. In regards to the guarantee by Sarina, the Court accepted that she had signed the documents without legal advice, although a solicitor was present, and in her home. Despite her denials, the Court found that she knew she was signing a guarantee responsible for the debts of the company which she knew was in some trouble. The decision does not directly address the elements set down in Garcia, however, the Court was of the view that Sarina was neither mistaken about the material nature of the guarantee nor a volunteer. The judgment notes that she was a director of the company receiving funds and receiving a salary from it. It was also found not to be unjust under the Contracts Review Act for the same reasons. (While there was no available relief, the obligation guaranteed was void for other reasons.)

    Austin J

    “In light of all these facts, the present case is longwave from Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395. The case is closer in this respect to Commonwealth Bank of Australia v Cohen (1988) ASC para 55-681, where Cole J declined to set aside guarantees given by a wife to support business loans to her husband. The wife had signed the documents at home at the request of her husband, in circumstances where the mortgagee did not ensure that she was aware of the parlous position of the company she was guaranteeing or that she received independent legal advice. But Cole J pointed out that the wife benefited from the transactions in the sense that she relied on her husband for income to support herself and her family, and the income was derived from the company, and the wife was aware that it was necessary to give the guarantee to enable the company to continue (at 58,159-58,160)” ([126]).

  • Satchithanantham v National Australia Bank Ltd [2009] NSWCA 268 | austlii
    Court of Appeal New South Wales: Giles, Hodgson, Young JJA

    A wife entered into loan agreement with the bank securing mortgage and loan monies used to discharge another mortgage and to finance her husband's business. The wife claimed undue influence under Yerkey and that the transaction was unjust under Contracts Review Act 1980 (NSW). She was a Sri Lankan woman who could only speak, read and write in Tamil and was completely illiterate in English. She did not receive any explanation of the mortgage from the bank and her husband did all the paper work on her behalf. She said that the mortgage was executed under the undue influence of her husband; she had no benefit of independent legal or other advice. The trial judge took that view that Yerkey primarily deals with the situation where a wife or equivalent mortgages her property and receives no benefit at all from the funds produced by the mortgage. The wife herself had received considerable benefit under the transaction. There is a very limited area where a wife can take advantage of the Yerkey principle where she receives some benefit, usually in the case where she is a director and shareholder of a corporate borrower. The Court of Appeal agreed and dismissed the appeal.

  • Plasterboard Central Pty Limited v Blain [2009] NSWDC 44 | austlii
    District Court of New South Wales: Goldring DCJ

    A wife provided a guarantee for her husband’s business borrowings. The wife sought equitable relief, or relief under the provisions of the Contracts Review Act 1980. Her evidence was that she trusted her husband absolutely and that she left it to him to decide what was or was not necessary for the business. She understood that he would not permit her to sign a document which he thought was not in her interest. The Court held the interest of the wife was as a beneficiary of the family trust, which was in turn the beneficial owner of shares in the company. So she could not be regarded as a volunteer. There was no undue influence exerted over her, however, it was accepted that she did not understand her material liability. She was precluded from any remedy under the common law principles.

    However, the Court held the guarantee was unjust under the Contracts Review Act 1980 (NSW). The Court held that there was a material inequality of bargaining power which the lender exploited, no ability to negotiate and a difficult form to complete and understand. No legal advice offered or obtained. The guarantee was enforced by limited to a specified amount.

  • Agripay Pty Limited v Byrne [2011] QCA 85 | austlii
    Supreme Court of Queensland Court of Appeal: McMurdo P, White JA, McMeekin J

    The husband borrowed money to invest in a tax avoidance agricultural managed investment scheme. There was some evidence that the benefits of this investment were to go into a joint superannuation fund for the couple. His wife guaranteed his loan. The Chief Justice at trial set aside the guarantee on the basis that it was unconscionable. The basis of this finding was that the first the wife knew that she was required to be involved in the scheme was when she was told she had some documents to sign so that her husband could take advantage of the investments. If she did not sign, he could not use the scheme to solve his tax problem. She did not read the application before she signed it as guarantor or receive independent advice before signing. She was upset and felt she was being ambushed. She had blind faith in her husband, notwithstanding his sometimes indifferent personal treatment of her. The couple were both doctors. The Court of Appeal dismissed the appeal and held that a principled application of the rule laid down in Yerkey and confirmed in Garcia requires that the lender be imputed with knowledge about the ‘trust and confidence’ in this relationship, and had to do more to ensure her informed consent. The lender had not provided any advice to her or ensured that that advice was given by an independent advisor. Arguments were raised by the appellant about the high levels of education of both and the general understanding of the wife about what she was guaranteeing and that the scheme financed was to benefit them both.

    McMurdo P

    “There seems to be no sound reason why these principles should be limited to wives entering into guarantees of their husbands' liabilities. Human weaknesses and unconscionable conduct are not limited to heterosexual marriage relationships. These legal principles should apply equally to all vulnerable parties in personal relationships” (at [4]).

    “It may seem odd that in this case a practising medical practitioner with some business experience can avoid the obligations of her guarantee under Garcia. But the respondent is not disentitled to the protection of the law because she is tertiary-educated. It must be remembered that the principles explained in Garcia over 13 years ago have long been the law in Australia. Commercial lenders like the appellant, which require partners of borrowers to guarantee their partners' loans, should be well aware of their legal obligations to ensure such guarantors understand the purport and effect of their guarantees and the transactions to which they relate” (at [27]).

    “The evidence before the primary judge was sparse, both as to the likelihood and extent of any profit to the joint superannuation fund or generally from the agricultural managed investment scheme. At best, it was that there was some prospect of an eventual profit which may have benefited the family unit if it remained functional; and some small portion of any eventual profit may have found its way to the joint superannuation fund. But the short term benefit of a lower tax bill and any profit received in the long term was essentially for Dr Murray Byrne. There was no clear evidence that the respondent would actually profit from the scheme. … The evidence favoured the conclusion that the prospect of any profit to the respondent was speculative. Even if she did receive some eventual modest benefit, it was likely to be neither direct nor immediate” (at [11]).

    White JA

    “Ultimately, cases where a wife seeks to be relieved of the burden of her contract of suretyship will depend on a close analysis of the particular facts. [The lender] submitted that the learned primary judge took an indulgent view of Dr Byrne’s want of understanding against her involvement in many of the financial activities of her husband. This is to elevate too highly those activities. The use of a family trust to protect assets in this case involved the purchase of two or three paintings by well known Australian artists. The learned primary judge’s acceptance of Dr Byrne’s limited involvement in the running of her husband’s medical practice was open on the facts. Her evidence that she attempted to bring some financial order into her husband’s affairs by managing the household bills from their joint account (required as a condition of her visa) was not challenged. But she was unable, apparently, to exercise any influence over him to plan for his tax obligations and her evidence of his purchase of a $390,000 car when he had looming liabilities suggests just how little influence she had. No matter how intelligent she might have been, the emotional pressure that she felt at the time the transactions were entered into was of a kind for which in part the rule had been developed and in respect of which the [lender] could relatively easily have dealt. … [The lender] also submitted that Dr Byrne gave no evidence to the effect that if fully informed and given time to reflect she would not have entered into the contract. She did not need to do so. This was not a defence of misrepresentation …” (at [66]).

  • NAB v Savage [2013] NSWSC 1718 | austlii
    Supreme Court of New South Wales: Adamson J

    A wife provided guarantees for six separate loans on properties and for her husband’s business loan. These guarantees were secured by mortgages on two properties. Mrs Savage was a co-borrower in all facilities except for the business loan. Each obligation owed by Mrs Savage to the bank was secured by the mortgage over their home or their farm, or both. Although the evidence did not establish that Mrs Savage signed all of these agreements, she accepted that, absent equitable intervention, she was bound by them. She relied on a Garcia defence. She spent less than 15 minutes at the bank on each occasion of signing. The husband initialled all the statutory declarations about advice. There was no evidence that the bank manager sought to explain to her or had reason to believe that the documents were explained to her. Usual banking practice not followed. However, she was unable to establish that she was a volunteer in any of the loans except her guarantee of her husband’s business. She did not need to establish that she would have acted differently if she had known about the extent of her liability.

  • ANZ Banking Group Ltd v Londish [2014] NSWSC 202 | austlii
    Supreme Court of New South Wales: Adamson J

    Mrs Londish inherited a large amount of property from her parents and a family company. She had a university degree and was a full-time carer of her three children. Her husband was a lawyer and managed and developed the property that his wife had inherited from her parents, as well as acquiring further real property. She did not take an active part in the business. A number of loans were guaranteed with mortgages over property owed by the wife. The Court found no basis for saying the various transactions were unjust under the provisions of the Contracts Review Act 1980, and not unconscionable or based on undue influence. The wife knew, in general and material terms, what they involved and that they benefited the family. She was not a volunteer to the transaction and did not suffer a ‘special disadvantage’. Relief was refused.

    Adamson J

    “I consider the instant case to be distinguishable from Garcia in a number of respects. In respect of the loan secured by the Challenger Mortgage Mrs Londish was a co-debtor with her husband and the loan was advanced to both of them jointly. In the case of the ANZ Mortgage she was the sole borrower and the bulk of the funds advanced were applied to discharge a mortgage over property she owned. She regarded herself, correctly, as the "owner" of the Knoll companies and was a principal shareholder or co-shareholder with her husband in each of them. She was also a director at least of some of them. There was therefore a direct benefit to her in having monies advanced to those companies for the purposes of improving their real property assets” (at [142]).

  • Capital One Securities Pty Ltd v Soda Kids Holdings Pty Ltd & Ors [2014] VSC 168 | austlii
    Supreme Court of Victoria: Ginnane J

    A husband and wife provided guarantees for a number of business loans. The businesses were conducted by the wife and the husband sought relief under Garcia principles. The husband had a very low level of education and could not speak English well and could not read it at all. She said that he did not understand business matters. He only helped her in the business with tasks like unloading containers. However, the solicitor denied this was the case. The Court found that the husband understood in a general sense the obligations that a loan and mortgage might impose. However, he was not given advice or the documents about a variation. However, the Court found that he was not a volunteer. Relief was refused.

    Ginnane J

    “[The husband] received a direct and immediate financial interest from the guarantee and mortgage, as he owned trademarks for products that his wife sold in the business. The loans assisted [the wife] to continue the business from which [the husband] stood to receive direct financial benefit. Later in 2010, he became the sole shareholder and director of Soda Kids 146 which eventually took over the operation of the Soda Kids business” (at [227]).

  • Schultz v Bank of Queensland [2014] QSC 305 | archive.sclqld.org.au
    Supreme Court of Queensland: Jackson J

    A wife guaranteed a loan made to the corporate trustee of a discretionary family trust which was controlled by her former husband. She relied on the principle from Yerkey v Jones in her claim for relief from the contract and an alternative claim based on statutory unconscionable conduct by the bank. She had previously provided a mortgage as security for a loan, and obtained independent legal advice at that time. She did not receive advice in relation to two guarantees provided for a loan to the trust but signed a waiver provided by the bank. It was agreed that the bank representative told her to seek legal advice and that the document was a guarantee and for the amount specified. Her evidence was that when she asked she was not told about the terms except that if her husband defaulted she would be asked to repay the loan. After some consideration of the law, Jackson J found that Schultz was not a volunteer.

    Jackson J

    “The “Yerkey v Jones equity” is an equity raised in favour of a wife who enters into a transaction as surety for the debts of her husband or her husband’s company. To some, it might seem an anachronism in a 21st century world. But it was affirmed by the High Court as recently as 1998 in Garcia v National Australia Bank (“Garcia”). There are dicta which urge that the principle extends beyond the protection of a wife to analogous relationships of trust and confidence, but I am not concerned with that question” (at [1]).

1998 - 2015: Informed consent of the guarantor and the bank’s responsibility for this

The High Court in Garcia v NAB called for those susceptible to STD to receive advice from a “competent, independent and disinterested stranger,” or that the bank explains the transaction to the guarantor. Yet courts rarely imposed responsibility on banks for ensuring that the wife/partner had adequate information or for inquiring about whether the relationship affected her consent. The law did not require that the bank ensure that the wife actually received either legal or financial advice, only that it tell her to seek it. In addition, as confirmed in the decision in State Bank of NSW v Kit Cheng Chia and Peng Tin Chia in 2000, when considering whether the wife/partner understood the transaction, courts require her to understand the ‘general extent of the liability’ (if material) rather than have a full understanding of the transaction. Yet, feminist research and law reform reports in the early 2000’s indicated that STD remained a widespread issue because women were rarely obtaining advice, feeling pressured and/or did not understand what they were guaranteeing. While these critiques remain relevant, in a number of cases since 2011, courts have gone behind documentary evidence of legal advice provided to a spouse guarantor to consider the circumstances of that advice, or whether legal advice had actually been received.

  • Garcia v National Bank Limited (1998) 155 ALR 614 | austlii
    High Court of Australia: Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

    Mrs Garcia and her husband executed a mortgage in favour of the bank for the purposes of securing guarantees given for a loan to her husband’s business. Mr Garcia assured Mrs Garcia there was no ‘danger’ in the transaction and no explanation of the transaction was given by the bank. Mrs Garcia was a physiotherapist. However, there was evidence that her husband had belittled her and that she was trying to save their marriage. The Garcias divorced and Mrs Garcia sought a declaration that the guarantees were void as a result of undue influence. The trial judge found Mrs Garcia understood nature of guarantees but not the extent of this particular guarantee and that undue influence was established. The Appeal Court overturned this finding and also dismissed the principle from Yerkey. The appellant then appealed to the High Court. The High Court found that Mrs Garcia did not understand the nature of the transaction, the Bank was aware that Mrs Garcia was married to the creditor and, because they took no step to explain the transaction to her and knew of no independent advice to her about it, Mrs Garcia was entitled to relief.

    Gaudron, McHugh, Gummow, Hayne JJ

    [Yerkey v Jones] is one concerning what today is seen as an imbalance of power. In point of legal principle, however, it is actual undue influence in that the wife, lacking economic or other power, is overborne by her husband and goes surety for her husband's debts when she does not bring a free mind and will to that decision.” (at [23])

    The majority found that a principle that recognised the “trust and confidence, in the ordinary sense of the words, between marriage partners” was appropriate to retain in Australian law. Their Honours did not need to decide in the context of the (marriage) relationship before them but left open the prospect of application of the principle to other “long term and publicly declared relationships short of marriage.”

    Literature cited by Gaudron, McHugh, Gummow, Hayne JJ

    • Howell 1995;
    • Fehlberg 1996;
    • Fehlberg 1997.

    Kirby J:

    “Thus the credit provider will be fixed with constructive notice if it knows facts sufficient to put it on inquiry as to the possibility of wrongdoing by the debtor and it fails to inquire. … A credit provider will be put on inquiry by a combination of two factors. (1) the transaction is not on its face to the personal financial advantage of the party offering the security; and (2) there is a relationship which is known, or which ought to be known, by the credit provider involving an emotional dependency on the part of the surety towards the debtor. The relationship of emotional dependency is singled out because of the possible effects of the sexual and/or relationship ties between the parties, on their financial dealings with each other. The fear of destroying or damaging the wider “relationship between persons makes these ties a ready weapon for undue influence". Moreover the informality of business dealings raises a “substantial risk” of misrepresentation as to the nature of the liability concerned. A credit provider will therefore be put on inquiry if it is aware that the surety reposes trust and confidence in the debtor in relation to his or her financial affairs. Cohabitation, as such, may alert the credit provider to the need for further inquiry. So may marriage, de facto marriage, or long term relationships with respect to sureties and borrowers of either sex. So may other information as to the relationships of the parties which comes to the notice of the credit provider or which it, out of prudence, requests and obtains. A rudimentary question as to the address of the parties and the discovery that they are (or have been) cohabitees would ordinarily be enough to set alarm bells ringing. This is because of the added vulnerability which cohabitation may bring to a relationship, otherwise unexplained, under which one person guarantees the debt of another by assuming their risks if things go wrong”.

    Literature cited by Kirby J:

    • ALRC 1994;
    • Pascoe 1997;
    • Fehlberg 1997;
    • Dodds-Streeton 1994;
    • Cretney 1992;
    • Duggan 1991.

    Feminist commentary

    Positive assessments

    “Unless the lender takes steps to explain the transaction to the wife (or ensure that someone else has done so) it will be unconscionable for it to enforce the security if in fact the wife did not understand it … [s]uch an analysis reveals that most criticism of Yerkey v Jones (or at least the most fierce) is misdirected. The presumption is one of trust between spouses – surely unobjectionable – rather than of wives’ collective incompetence.” (Stone 1999, p.606)

    “[T]he principle outlined by the majority in Garcia provides an excellent example of the advantageous use of stereotyping in the development and application of equitable doctrine. The basic premise of Garcia is that protection for married women against unscrupulous creditors who fail to fully explain the terms and conditions of financial agreements they may enter into must be sustained. The reason for this continued protection is simple: a significant number of married women in Australia are in relationships ‘marked by disparities of economic and other power’. … In Garcia, the benefits of the discrimination flowing from the new Yerkey principle are encapsulated in what we have described as ‘positive stereotyping’. The new doctrine allows for a healthier form of stereotyping to be used in order to uphold the sense of individual justice upon which the equitable jurisdiction is founded.’ (Haigh and Hepburn 2000, p. 305, 307)

    “The Garcia decision comprehensively examines the ambit of the Yerkey principle and categorically confirms its continuing relevance to the modern law of undue influence in Australia, despite marked changes in societal mores and gender roles since Yerkey was first handed down. The legal significance of this latest decision lies in its explication of the relational focus of the principle; according to the majority, the rationale underlying the special wives’ equity is not based on the subservience or inferior economic position of women, nor is it based upon their vulnerability to exploitation but rather, the unfairness that can flow from relationships of trust and confidence.” (Hepburn 1997, p.99)

    “The rule in Garcia although a narrow one, applying only to marital relationships where the wife is substantially regarded as a volunteer, nevertheless has the significant advantage of enabling a wife to resist enforcement of a guarantee on the grounds that she lacks full understanding of its effect. The rationale for the rule, as emphasised by the majority, was to be found in the special nature of the marriage relationship which is based on trust and confidence between the spouses.” (Pascoe 2006, p117)

    Negative assessments

    “[T]he judgments in Garcia … while appearing to take different approaches to the question of how best to promote equality, implicitly employ common stereotypes - or stock stories - about women's difference within marriage. … Kirby J recognises that the problem is one that primarily affects women, yet his failure to analyse this as a product of gender inequality leads, once again, to the invocation of an inherent women's difference despite the stated desire in the first part of his judgment to avoid gender stereotypes. Again Kirby J seems to imply that it is merely a matter of preference or choice for women as to whether they follow their husbands' advice… While the judgments all acknowledge, either implicitly or explicitly, that the phenomenon of sexually transmitted debt is a gendered one, their explanations, although different on their face, end up locating the problem in some notion of women's 'difference' rather than inequality. The missing factor in all three judgments is an analysis of the structural gendered inequality and, in particular, the economic factors, which contribute to the problem.” (Dunn 2000, p.444, 446, 447).

    “The decision in Garcia has attracted a fair share of academic criticism, as failing to discharge a judicial responsibility to provide practical guidance by refusing to provide particular guidance beyond the facts in the case before them and merely indicating what may be decided in future cases.” (Cockburn 2000, p.278)

    “Just as this decision provides no clear guidance on how to deal with such cases, it also shows that the Court has no clear understanding of how women are affected by legal doctrines nor of some of the important theoretical work on gender and equality that might assist it in developing a clear and principled approach to such issues…” (Graycar and Morgan 2001, p.721)

    “While the majority judges … left open the possibility that this special protection might be extended beyond wives … they confined their ruling’s scope to the situation of a wife in Jean Garcia’s position. However justifiable that might be in terms of the facts before the Court and as a matter of strict precedent, the modern High Court has engaged in law-making to varying degrees in cases with equally confined facts but also equally significant socioeconomic consequences. … In that sense, Garcia represents a missed opportunity for judicial leadership and community guidance.” (Horrigan 2003, p. 185)

  • Liptak v Commonwealth Bank Of Australia [1998] SASC 6887 | austlii
    Court of Appeal Supreme Court of South Australia: Doyle CJ, Prior, Lander JJ

    A wife became a guarantor for her husband’s business. She alleged that she executed the mortgage as a result of actual or presumed undue influence exercised upon her by her husband. Her belief, based on what her husband said, was that they were borrowing $50,000. She said in evidence her husband was very adamant that it was extremely important and it was very urgent, and that he would be ruined if she did not sign it. The wife claimed that the mortgage should be set aside. The trial judge rejected the case put forward by her. He found no undue influence. In the alternative, based on Yerkey and Garcia the trial judge found she did understand the effect of the mortgage and the nature of the transaction. No relief was given. The Supreme Court agreed and dismissed the appeal.

  • Vladimirka Radin v Commonwealth Bank of Australia [1998] FCA 1361 | austlii
    Federal Court of Australia: Lindgren J

    This case was brought under the Trade Practices Act 1974 (Cth). The wife and the husband’s mother provided security for the husband’s business loan with mortgages on their homes. They sought to set aside the mortgages on the basis of claims of breach of duty of disclosure and unconscionable dealing by the bank, and pursuant to provisions of the Contracts Review Act 1980(NSW). The wife also relied on Yerkey and Garcia principles for relief.The wife made serious allegations of violence against her husband. In particular, she alleged that she signed mortgages and other documents in favour of the bank because of her fear of what her husband would do to her if she did not sign. At the time the couple were separated. The wife claimed that the bank was actively concealing from her the fact that it was allowing the maintenance cheques to be met as part of its selective honouring of cheques in collusion with her husband. The Court held that she knew that she was liable for the indebtedness of her husband as well as for the joint borrowings more directly connected with the couple's investment in real estate. The Court also held she was his “business partner” and thus not a volunteer. The Court held she did not satisfy the Garcia principles and that that bank did not know about any violence of the husband or dependence by the wife.

    In regards to the husband’s mother the court found no extraordinary circumstances which would justify any order against the bank in favour of her. Her decision to trust and support her son to the extent of mortgaging her home to support his business was not a vitiating factor.

    Feminist commentary

    Negative assessment

    “[T]he views expressed by Lindgren J … seem at odds with the Garcia decision itself, in that the majority emphasised that the critical issue for the creditor was whether the surety and debtor were married, and that the wife did not need to actively show that she reposed trust and confidence in her husband.” (Collier 1999)

  • Mcauley & Ors v Panagiotidis (No 2) [1998] SADC 3916 | austlii
    District Court of South Australia: Lunn J

    A wife gave a mortgage over her sole property to secure a loan to her husband's business. She argued that Yerkey applied. She was illiterate, spoke poor English, did not properly understand the transaction and was subject to fraud by her husband. The District Court held the wife was a volunteer even though a small part of the money raised was used for her benefit. Also, although she understood the document was a mortgage she did not understand the extent of the risk which she was running under it and it was not explained to her.

  • Commonwealth Bank of Australia v Khouri [1998] VSC 128 | austlii   view appeal
    Supreme Court of Victoria: Harper J

    A wife became a guarantor for her husband’s business loan. The Court concluded that the bank would be "obtaining an unconscientious advantage" over the wife if it were permitted to enforce that security. The Court found Yerkey and Garcia were applicable. They held that the wife was not aware that she was signing a guarantee or a second mortgage in support of it; and that she believed only that she was signing documents in support of a $10,000 overdraft. Furthermore, the bank did not explain the purport or effect of the documents to her, nor did it seek to protect her interests in any way notwithstanding that they knew that the marriage relationship existed and that her husband had not informed her of what the transaction was about. The Court found that the she was a volunteer to the transaction because, although she was a director of the company, it was a business run by and under the control of her husband and in which she took no active interest. She was pre-occupied with raising her three children and any benefit she gained came to her not as of right, but as the result of discretion by her husband. Relief was refused.

  • Davies v Australia & New Zealand Banking Group Ltd [1999] FCA 1104 | austlii
    Federal Court of Australia: Heerey J

    A wife sought an interim injunction to restrain the bank from taking steps to obtain possession of her house which was provided as security for a guarantee of her husband’s loan. She relied on the provision of Part IVA of the Trade Practices Act 1974 (Cth) relating to unconscionable conduct and claimed to satisfy the requirements of the principles under Garcia. The Court dismissed the application for an interim injunction. The Court did not accept the wife’s evidence as to her lack of knowledge and understanding of the nature of a mortgage and guarantee. The Court found she had been closely associated with the business fortunes of her husband over the years. Her dealings with the bank in recent times were inconsistent with somebody not understanding the nature of a mortgage and the consequences of default under a mortgage.

    Feminist commentary

    Negative commentary

    “In the absence of actual influence, where the wife does not establish that she did not understand the nature and effect of the security documents, she will be unable to have the documents set aside under the rule in Yerkey v Jones as explained in Garcia [see Davies v Australia & New Zealand Banking Group Ltd].” (Cockburn 2000, pp.270-271)

  • Commonwealth Bank of Australia v Horkings [2000] VSCA 244 austlii   view trial
    Victorian Court of Appeal: Winneke P, Phillips, Buchanan JJA

    This is the appeal from the decision in Commonwealth Bank v Khouri (above).

    The Court of Appeal dismissed the appeal by the bank. Winneke P agreed with respondent counsel that ‘… the facts, as his Honour [at trial] found them to be, were - to all intents and purposes - indistinguishable from the facts found in Garcia's case’ (at [55]).

  • Cranfield Pty Ltd v Commonwealth Bank [1998] VSC 140 | austlii
    Supreme Court of Victoria: Mandie J

    An Italian wife entered into a guarantee at her husband’s instigation for a business loan. It was argued that she was “uneducated and illiterate and accustomed to obey husband's directions in business matters”. The Court held the principles in Yerkey were applicable. Her husband neglected to inform her of the nature of the obligations knowing she would give her assent in complete ignorance. The Court held that where the bank took no steps itself to inform her or to assure itself that she had sufficient understanding, relief should be available. Furthermore, the Court held she was undoubtedly a volunteer.

  • ANZ Banking Group Ltd v Pham (No. 2) [1999] VSC 503 | austlii
    Supreme Court of Victoria: Warren J

    A husband and wife from Vietnam worked full time in the various family businesses. The wife entered into a guarantee for a business loan. Another family member who was the daughter-in-law of the wife, also from Vietnam entered into a guarantee for the family business. The daughter-in-law received very limited education in Vietnam and upon arrival in Australia attended English classes for a period of six months. Both wife and daughter-in-law relied on Yerkey and Garcia to have the guarantee set aside. The Court held both the wife and daughter-in-law understood the nature of mortgage, and the guarantee. Furthermore, as members of the Pham family and as a part of the commercial network they stood to gain from the transactions. In addition, the Bank was entitled to be satisfied that solicitors were acting for both of them and they had received advice upon the transactions. No relief was granted.

  • Guaranteeing Someone Else’s Debts, Issues Paper 17 (2000) | austlii
    New South Wales Law Reform Commission

    The NSW Law Reform Commission (‘Commission’) Report concluded that, in regards to STD there are some legal safeguards for people who guarantee consumer loans but people who guarantee business loans do not have the same protection and must rely on the common law. The Commission recommended various changes to provide further protections for guarantors based on providing appropriate advice to guarantors. It did not recommend banning or limiting spousal guarantees or using the home as security.

    Commission comment and literature cited

    “A recurring and highly significant theme in guarantee transactions is the personal relationship between the borrower and guarantor. Many guarantors are spouses (usually wives), parents, other relatives or close friends of the borrower. If the borrower is in default, the creditor will usually attempt to recover the money from the guarantor. Hence, this phenomenon has been called ‘sexually transmitted debt’, ‘emotionally transmitted debt’ or ‘relationship debt’. On the one hand, the emotional relationship between the borrower and guarantor means the guarantor is vulnerable to unfair conduct on the part of the borrower and/or lender. A significant number of guarantors have reported that they did not understand what they were doing at the time of the transaction. Many do not engage in the usual inquiries that a person entering a business arrangement would undertake. Quite often, they do not receive information needed to understand the nature of the transaction and the risks involved. On the other hand, many guarantors in a close relationship to the borrower agree to guarantee the borrower’s indebtedness even where they fully comprehend the nature of the risks associated with the transaction into which they are entering. They do so simply because they do not want to damage their relationship with the borrower by refusing to act as a guarantor, viewing themselves as having no real choice about providing security for the underlying loan. …It is apparent, therefore, that the legal system needs to protect guarantors as far as it reasonably can, especially from unfair conduct by lenders and borrowers” (at pp. at 66-67).

    The Commission recommended, however:

    “That protection must, however, recognise that guarantees are an essential tool in facilitating access to credit. Reform measures intended to protect guarantors must, therefore, take into account the interest of lenders and borrowers and ensure that the utility and convenience of guarantees as a credit risk-minimising device remain largely undiminished” (p. 7).

    References for STD discussion within the Report

    • ALRC Equality before the Law
    • Baron 1995
    • Lovric and Millbank 2003
    • Fehlberg 1997
    • Haigh and Hepburn 2000
    • Dunn 2000
    • Otto 1992
  • Westpac Banking Corporation v Mitros [2000] VSC 465 | austlii
    Supreme Court of Victoria: Byrne J

    A wife executed a mortgage to secure loans made and to be made to her husband's company. At trial she relied on three defences to resist the bank's claim: her husband's undue influence; her want of understanding of the nature of the transaction; and a subsequent agreement under which the bank agreed to release the security. She did not read the documents nor was she told that she might or should do so. She did not recall what the documents were or how many there were. No explanation was provided about them by the husband and no advice to her to seek legal advice. The Court found that she acceded to her husband's demand that she execute the mortgage in circumstances where she had little alternative if she wanted to preserve her domestic situation. She had no economic or other power which gave her true independence from her husband. Her will was overborne by him when she executed the security documents. Moreover, the influence which he exercised was undue inasmuch as he failed to explain to her the nature of the obligation which he required her to undertake and the nature and extent of the debt for which she was providing security. The Court found that she signed the mortgage in circumstances which amount in law to undue influence and set aside the guarantee.

    Byrne J

    “This is, of course, a matter between the spouses. It is not suggested, and I do not find, that any officer of Westpac was aware of this. Nevertheless, the law is that even an innocent and ignorant creditor of a husband or of his company who accepts a security from a wife who is a volunteer does so at the risk that it may be set aside in equity if there be undue influence unless the creditor takes certain steps. It is not sufficient that the creditor explains to the wife the nature of the transaction, for her want of understanding is not to the point. The creditor must ensure that she has independent advice or that she is, at the time of executing the security, free of the influence of the husband over her judgment. … I am satisfied that the explanation provided by the Westpac officer was not, in the circumstances, a sufficient explanation of the nature and effect of the mortgage. … On the facts as I find them, [the bank employee] made no enquiry to satisfy himself that she had an adequate comprehension of the obligations she was undertaking. The bank officers had no reason to think that she had obtained competent and independent advice as to the nature and effect of the security” (at [27], [30]).

  • State Bank of NSW v Kit Cheng Chia and Peng Tin Chia; Peng Tin Chia v Kenneth John Rennie and Anor [2000] NSWSC 552; (2000) 50 NSWLR 587 | austlii
    Supreme Court of New South Wales: Einstein J

    A husband and wife from Singapore worked together. She was a certificated general nurse. She had assisted her husband in his practice as a medical practitioner. The bank claimed repayment from the wife as surety of moneys said to be owing to it by the husband.The wife claimed that she was ignorant of the contents of the mortgage. She had not seen the mortgage document prior to its production by her husband for execution by her. She was not afforded any opportunity to negotiate for, reject or make any alteration to the terms of the mortgage, or offered any legal advice. However, the Court held that the wife failed to establish the elements of undue influence. No relief was granted.

    Einstein J

    Einstein J found that the requisite understanding of the guarantor will include,

    “… at least an understanding of the fact of liability, the general extent of liability and the possible consequences of default … . However, it is not productive of an equity that the wife misunderstood or failed to appreciate the degree of risk associated in the transaction, or the improvidence or unwisdom of the uses to which the money so secured will be put: Yerkey v Jones (at 686). Further, the wife’s misapprehension must be of a material matter: Bank of Victoria Ltd v Mueller (at 648); that is, material to the liability the creditor wishes to impose upon the wife” (at [169]).

    Einstein J summarised the case law in respect of when a wife will be considered a ‘volunteer’:

    “… It is not sufficient that the wife has received consideration as would be recognised in the law of contract: Bank of Victoria v Mueller (at 649). The consideration for the guarantee must be of ‘real benefit’ to the wife: Garcia (at 412). Incidental benefit which accrues generally to the family of which the wife is a member is not sufficient benefit to render a transaction which does not otherwise contain a ‘real benefit,’ non-voluntary… . Where the wife expects to reap direct profit from the transaction, the transaction cannot be said to be voluntary… . Neither can it be said to be voluntary where the monies secured by the guarantee are used to purchase an asset in which the wife is equally interested with her husband… . However, where the interest of the wife is a shareholding in the company through which her husband conducted his business and in which she has no real involvement, then a guarantee given by the wife over that company’s debts will be voluntary… . But where the wife has an active and substantial interest in the conduct of, and the fortunes of, the business run by her husband, she will not be a volunteer in relation to any guarantee over the debts of that business… . Where the transaction is not ex facie for the benefit for the wife, then the onus will lie on the party seeking to enforce the security to show that the wife was not, relevantly, a volunteer…” (at [169]).

  • Robinson v Watts [2000] NSWSC 584 | austlii
    Supreme Court of New South Wales: Hunter J

    Maria Watts granted a mortgage over her property as security for a guarantee in favour of a company controlled by her de facto partner. This mortgage was subsequently transferred but enforcement proceedings continued against Watts under the Real Property Act. The Court was satisfied that Watts “resented being called upon to provide the mortgage, being under some pressure from Watts to assist in the provision of security to enable the varied contract to proceed” (at [33]), and that she was a volunteer under the mortgage. However, no common law undue influence or unconscionability was found, or misrepresentation. The Court found that she understood the nature of the contract and the risks posed. Indeed, the Court cited her ‘continued state of anger’ and ‘resentment’ as evidence of her understanding of the nature of the imposition on her. The Court also accepted evidence of the bank employee, with reference to an acknowledgment signed by Watts, that she had had the transaction explained to her and she did not wish to seek legal advice. Cross claim by Watts was rejected.

  • Westpac Banking Corporation v Paterson [2001] FCA 556 | austlii   view appeal
    Federal Court of Australia: O’Connor J

    A husband and wife entered into a transaction which on its face was a housing loan (refinanced). It was, in fact, part of a larger business transaction designed to secure credit facilities to her former husband's business. At the time they were divorced. She relied on Garcia, and claimed that the mortgage was unjust and unconscionable in the circumstances in which it was obtained by Westpac under the Contracts Review Act 1980 (NSW). The Federal Court held Garcia was applicable. The Court found the wife demonstrated her "trust and confidence" in her husband by allowing him to deal with the Bank in all respects in relation to the transaction. The Bank even permitted him to be in the room while the officers gave an explanation of the documents and process. At no stage did the Bank deal with her independently. They could not be said to discharge their obligation to ensure that she was a free and informed agent.

  • Westpac Banking Corporation v Paterson [2001] FCA 1630 | austlii   view trial
    Full Federal Court of Australia: Branson, Mansfield and Katz JJ

    The Full Federal Court allowed the appeal because it found there was no evidence before the primary judge to show that there was any special disability suffered by the wife, and no evidence of misunderstanding of the transaction. The officers of Westpac were aware that the respondent was Mr Paterson's former wife. However, when it was suggested to her by an officer of Westpac that she should obtain independent legal advice, she declined to do so on the basis that she had obtained advice before signing a previous mortgage.

  • Darling Please Sign This Form: A Report on the Practice of Third Party Guarantees in New South Wales, Research Report II, (2003) | austlii
    New South Wales Law Reform Commission, authored by Jenni Millbank and Jenny Lovric

    This document reported on an empirical study conducted by feminist academics Jenni Millbank and Jenny Lovric examining third party guarantees, where another person, often a wife or family member, is asked to provide security for the debt of the borrower. The findings were published as a research report and informed the NSW Law Reform Commission's final report (in 2007). This research indicated that there was still a pervasive problem of STD which was primarily experienced by women in guaranteeing loans for either their husbands or children. The report doubted whether these guarantors received any or adequate advice and warned that in situations of dependence, violence or emotional pull, such advice is likely to be ineffective in dissuading a woman from guaranteeing a transaction that is not in her financial interest.

  • Rapp, Rapp & Rapp v Li [2004] SADC 27 | austlii
    District Court of South Australia: Clayton J

    A wife became a guarantor for her husband’s business activities. She contended that the mortgage agreement was not binding upon her because she did not understand the agreement. The District Court, rejected her defence under Yerkey and held if she did misunderstand the purport of the document which she signed, that could only have been because of carelessness on her part. She was experienced in business matters and had at least her solicitor and husband to explain the documents to her if anything needed explaining. She was not a volunteer. She received good consideration for the transaction, namely, the shares in the companies which received the loans.

  • Commonwealth Bank of Australia v Anna Maria Crowe [2004] NSWSC 330 | austlii
    Supreme Court of New South Wales: James J

    A wife became a guarantor for her husband’s bank loan and other commercial transactions. She argued she could resist the bank’s claims under the principles stated in Yerkey or Amadio or under the provisions of the Contracts Review Act 1980 (NSW). She argued she had little education with only basic language skills in English and with no commercial or business experience, who did not understand the nature of the transactions she entered into. She was the sole owner of the house over which she gave the mortgage and the house was her only substantial asset. She claimed that although she was a director of and a shareholder in the company, the business carried on by the company was in reality her husband’s business. The Court found that she was not a volunteer as she was a joint owner of the business for the purposes of applying Yerkey, and she did not suffer from a disability or one that was known to the bank. The Court did not accept the wife’s evidence that at the time she granted the mortgage she did not understand what a mortgage was, or that she entered into some of the transactions because she was afraid of her husband and considered that she no choice. She had received advice from a solicitor and the bank had the solicitor’s certificate. Despite a claim that the solicitor was not ‘disinterested’ as he advised husband and wife, the court accepted the solicitor’s account. Relief was refused.

  • ANZ Banking Group v Paul Stephen Fuller and Ors [2004] NSWSC 305 | austlii
    Supreme Court of New South Wales: Master Malpass

    Two couples entered into a business conducted as a partnership which concerned the buying and the selling of second-hand cars. Both wives had signed a guarantee for business funds. It was alleged the Bank took steps to explain the transaction to the second wife. She was told that the guarantee was secured by the mortgage. She was told that liability was unlimited. She declined the opportunity of obtaining independent legal advice. However, the Bank did not seek to explain the guarantee part of the transaction to the first wife. The Court held the second wife was not entitled to any relief. But the first wife was entitled to relief under Yerkey principles which restricted her liability under the guarantee to an unsecured sum of $30,000. The Court held both wives understood the purpose and effect of an unlimited guarantee and that they understood that they were guaranteeing an overdraft of the business. Both understood the purpose and effect of a mortgage and neither of them were under any disability.

  • Commonwealth Bank of Australia v Thompson & Anor [2005] SADC 156 | austlii
    District Court of South Australia: Robertson J

    A wife became a guarantor for her husband’s business loan. She relied on Garcia and claimed that the enforcement of the provisions of the guarantee by the plaintiff was unconscionable and should be set aside. The husband gave evidence that his wife signed the guarantee at his request. He explained that he and his wife had been married for many years and she would always agree with what he wanted to do. The wife did not understand at the time of signing the guarantee that there were other companies involved so that if these companies defaulted on their loan repayments she would be liable as guarantor. She was a shareholder in the company, but the Court found her to be a volunteer. The Court held that the bank employees knew that the wife had not received an explanation of the transaction by another person and she had not read any of the documents, and found that the bank needed to explain to her the extent of her liability, and how that liability could arise. The Court held the principles in Garcia were established and the guarantee must be set aside.

    Robertson J

    “The Defendant did not have any business acumen. Indeed, she displayed very little interest in the businesses operated by Mr Thompson during their married life. Her interest focused on her family and her household. Her approach to her life with Mr Thompson was highlighted at one point in her evidence when she was asked whether she was upset at losing her house following the bankruptcy of Mr Thompson, and she replied that she was not upset because as long as her family was together that was all that mattered to her. As a result of her having no interest in any of the businesses, the Defendant never became involved in the management or operation of any of the businesses. She really knew very little about them. I did not gain the impression that the Defendant was quarantined from any matters arising during the business life of Mr Thompson; she simply had no interest in them. It is clear from his evidence, and the evidence of the Defendant, that all of the business decisions were made by Mr Thompson. He alone controlled and managed the various businesses” (at [163-165]).

  • Willis and Bowring v Ziade Investments No. 2 and 2 Ors [2005] NSWSC 952 | austlii
    Supreme Court of New South Wales: White J

    Both the husband and wife were personal guarantors for the husband’s business. The wife became the director and sole shareholder. She contended that her guarantee was not binding because she provided it to support her husband’s business activities, she did not understand its purport and effect, she did not receive independent advice in respect of it, and no one ever spoke to her about her guarantee. She relied upon Garcia. The Supreme Court held that she was not a volunteer. The Court held she understood the purport and effect of what she signed. The fact that the solicitor who explained the documents to her and the potential consequences of her signing the documents was her husband’s uncle, and not a stranger to her, did not mean that she could escape liability on her guarantees. Relief was refused.

  • Roseville Estate Pty Ltd v Bouris [2006] VSC 49 | austlii
    Supreme Court of Victoria: Hansen J

    A wife gave a guarantee for her husband’s loan securing it with a mortgage on her property. The loan applications were made in relation to a criminal proceeding in which the husband was charged with a number of counts resulting from his theft of money from his former employer. She claimed relief on the basis of Garcia. Her husband was in a position of ascendancy to influence her to execute documents at his request and without her comprehending them. The Court held that she had satisfied the elements of Garcia. She had signed the document without understanding that she was signing a mortgage and without understanding the purport and effect of that document or the other documents signed at the same time. There was no advice provided by the lender or anyone else. The Court found she was a volunteer, the suggested benefit to her not being of a financial character.

  • Wenczel v Commonwealth Bank of Australia [2006] VSC 324 | austlii
    Supreme Court of Victoria: Habersberger J

    A wife gave a mortgage over her home as security for a guarantee for her husband’s business. She gave evidence of her husband’s conduct that he came to the house demanding that she provide the property as security for a new bank loan. She said that she attempted to obtain the details of his indebtedness from her husband and the reasons for his needing her financial assistance, which she did not want to give, but that he became aggressive, shouting and swearing, banging his fists on the kitchen bench, and threatening to sell the property if she did not sign the papers put before her. The Court held that the wife was a volunteer and mistaken about the purport and effect of transaction. There was no independent legal advice obtained and a failure of the creditor to explain transaction. There was also a failure of creditor to comply with banking Code of Practice. The Court considered Yerkey and Garcia, and also held there was duress and undue influence. She was a volunteer despite being a joint principal debtor.

    Habersberger J

    “Ms Loughnan submitted that the evidence of the plaintiff and her two children about the aggressive and threatening behaviour of Mr Wenczel was exaggerated and that in any event his conduct was not truly the reason why the plaintiff signed the documents. She submitted that the plaintiff did so for two reasons – to promote the chances of a reconciliation and to avoid her husband invoking his rights under the Family Law Act and selling the house. Ms Loughnan also referred to the phrase which the plaintiff used twice in correspondence to the effect that she had let her heart rule her head. In my opinion, this was a case of undue influence in that the plaintiff's will was overborne. I agree with Mr Klempfner's submission that the plaintiff only signed the documents as a result of a combination of threats, emotional manipulation and betrayal of her trust and confidence in her husband. Whatever the precise circumstances of the kitchen confrontation I find that Mr Wenczel bullied his wife into signing the Mortgage and forced her to change from a long standing position of not wanting to be involved with her husband's debts. I accept that she was reduced to signing the documents in tears. I also accept that Mr Wenczel manipulated his wife's emotions in persuading her to sign. As the plaintiff said: "I never wanted to place the house at risk but when Stefan was threatening to force the sale of the house if I didn’t sign the mortgage I felt I had no choice. He had an uncanny ability to make me feel guilty by making me feel wrong that I was opposing him."

    The plaintiff knew that at that time her wages were not sufficient to meet the monthly home loan payments and that she was reliant on her husband's continued support in that regard. Thus, the threat to sell the house was real. Finally, I have found that the plaintiff still had trust and confidence in her husband. His conduct in pressuring his wife into signing the Mortgage betrayed that trust” (at [157-158]).

  • Report 107, Guaranteeing Someone Else’s Debts (2006) | austlii
    New South Wales Law Reform Commission

    In 1999 the Attorney General asked the New South Wales Law Reform Commission to inquire into and report on the legal framework for the protection of guarantors of small business and other loans. An Issues Paper 17 was released in May 2000. Between 2000 and 2003 empirical research was undertaken into the issue. The final report was not released until 2006. In the report, the Commission recommended the need for a national ‘model law’ relating to contracts guaranteeing another’s debt. The content of the law would involve, somewhat like the UK model, structural reform of the process of procuring a guarantee focused on informed consent of the guarantor. The Report had regard to the feminist critiques of common law approaches which favour efficient process for the banks rather than focusing on relief for the wife’s STD. It concluded that, in regards to STD there are some legal safeguards for people who guarantee consumer loans but people who guarantee business loans do not have the same protection and must rely on the common law. It also pointed to the fact that providing more information about the transaction to the guarantor might be ineffective if pressure is still being exerted by the spouse at the time of signing. Thus the Report recommended that there be minimum of one day between advice given and signing, and signing without the borrower being present. The Australian Banking Association’s Code of Banking Practice 2013, adopted by all major financial institutions, implements these measures. The National Credit Code has similar requirements for consumer contracts. The Report categorically ruled out prohibiting third party guarantees or imposing restrictions on the use of the family home as security.

    Commission comment and literature cited

    “A recurring and highly significant theme in guarantee transactions is the personal relationship between the borrower and guarantor. Many guarantors are spouses (usually wives), parents, other relatives or close friends of the borrower. If the borrower is in default, the creditor will usually attempt to recover the money from the guarantor. Hence, this phenomenon has been called ‘sexually transmitted debt’, ‘emotionally transmitted debt’ or ‘relationship debt’. On the one hand, the emotional relationship between the borrower and guarantor means the guarantor is vulnerable to unfair conduct on the part of the borrower and/or lender. A significant number of guarantors have reported that they did not understand what they were doing at the time of the transaction. Many do not engage in the usual inquiries that a person entering a business arrangement would undertake. Quite often, they do not receive information needed to understand the nature of the transaction and the risks involved. On the other hand, many guarantors in a close relationship to the borrower agree to guarantee the borrower’s indebtedness even where they fully comprehend the nature of the risks associated with the transaction into which they are entering. They do so simply because they do not want to damage their relationship with the borrower by refusing to act as a guarantor, viewing themselves as having no real choice about providing security for the underlying loan. …It is apparent, therefore, that the legal system needs to protect guarantors as far as it reasonably can, especially from unfair conduct by lenders and borrowers” (at pp. at 66-67).

    The Commission recommended, however:

    “That protection must, however, recognise that guarantees are an essential tool in facilitating access to credit. Reform measures intended to protect guarantors must, therefore, take into account the interest of lenders and borrowers and ensure that the utility and convenience of guarantees as a credit risk-minimising device remain largely undiminished” (p. 7).

    References for STD discussion within the Report

    • ALRC Equality before the Law
    • Baron 1995
    • Lovric and Millbank 2003
    • Fehlberg 1997
    • Haigh and Hepburn 2000
    • Dunn 2000
    • Otto 1992
  • CBFC Ltd v Fadhel Ahmed & Myoungsuk Oh [2008] VCC 4 | austlii
    County Court of Victoria: Anderson J

    A wife became guarantor for her husband’s business. She says that she was aware that she was required to attend the business premises of the company in order to execute loan documents. The wife said that she was not offered any explanation about the nature of the documents. She had her infant son with her at the bank and her husband was anxious to conclude the business. She relied on Yerkey and Garcia to have the guarantee set aside. The County Court held the wife did not establish that the lender failed to take steps to explain the transaction to her or to offer her the opportunity to receive independent legal advice before proceeding to execute the documents. She was also involved with the business, and was not a volunteer, rather, she was more of a “family representative”. Relief was refused.

  • Secure Funding Pty Ltd v Nicol (Civil Claims) [2009] VCAT 2189 | austlii
    Victorian Civil and Administrative Tribunal: Senior Member A. Vassie

    A wife signed a loan application for her husband. They had borrowed money from the applicant to purchase a car from a car dealer and to pay expenses associated with the purchase. The wife relied on Garcia and gave evidence that her husband was an undischarged bankrupt, which is why her signature to the loan agreement was required. Her husband drove the vehicle as she did not have a driver’s licence. The Tribunal held the circumstances as provided in Garcia were established and the wife was not liable. Senior Member Vassie followed Wenczel v Commonwealth Bank of Australia and found that in the present case the wife was in the position of a surety, even though the document which she signed designated her as a joint principal debtor. The loan was primarily for the husband’s business or employment purposes. He told her that the payments under the loan agreement would be his responsibility. The applicant’s documents included a direct debit request, addressed to the applicant, signed by the husband alone. That was consistent with the applicant regarding the husband as the principal debtor and the wife as a surety.

    Senior Member Vassie

    “There is other authority [Wenczel v Commonwealth Bank of Australia [2006] VSC 324], however, which supports the view that the type of transaction that might be set aside under the Garcia principle is of a wider class than an express contract of guarantee, and that the kind of misapprehension by the wife which might attract the principle is not merely a misunderstanding of the nature of the document she was signing. … I find that Mrs Nicol did not receive a full explanation of the document she signed or of the transaction into which she entered. Her then husband gave only a partial explanation. He told her that it was his responsibility to make the payments. He did not tell her that on its face the document she was signing could make that her responsibility too. Mrs Nicol is not a sophisticated person. Without a full explanation she would not have gained a full understanding of the ramifications of her signature. So she did not sufficiently understand the purport and effect of the transaction into which she was entering. All the other circumstances or factors which, according to the majority judgment in Garcia, establish “the married woman’s equity” are present. Mrs Nicol was a volunteer. Her husband, not she, was primarily gaining from the transaction. The personal relationship of trust and confidence was present. The applicant did not itself take steps to ensure that the transaction was explained to her, even though it ought to have explained it fully and accurately. To enforce the loan agreement against her would therefore be unconscionable within the meaning of that expression as used in Garcia. Because the loan agreement should be enforced, she cannot have a liability under it” (at [8], [16-17]).

  • Siwicki v National Australia Bank Limited [2010] VSC 547 | austlii
    Supreme Court of Victoria: Mukhtar AsJ

    A wife entered into mortgage over her home for a loan to a company so she and her husband could by a hotel in the Snowy Mountains. She stated “[t]he purchase of the Lodge was Richard’s dream project. I very strongly felt and believed that if I refused to be involved, or opposed Richard’s involvement, it was likely to create such a strain on our relationship that it would end our marriage. I really believed I had no choice”. A consent judgment was entered into for the bank to take possession of the mortgaged property. However, she argued the transaction was unconscionable because she did not understand what she was doing and was not made aware of what was going on. She never instructed the solicitors to act for her and acted under pressure from her husband, or ignorance, in agreeing to the consent judgment. The Court held judgment for the bank and held that Yerkey and Garcia do not apply to an application to have a consent judgment set aside.

    Mukhtas AsJ

    “There is no basis for alleging that the bank ought to have made inquiries to satisfy itself that Mrs Siwicki was not subject to undue pressure or some other impropriety from her husband or for that matter, from Harwood Andrews, nor checking to see if she was receiving proper advice from them when it came to signing the consent to judgment: see Euroasia (Pacific) Pty Ltd v Narain. As far as the bank knew, there were solicitors acting. If there was a conflict of interest between Mrs Siwicki and her husband, that would have been something for Harwood and Andrews to determine and advise accordingly. In any event, even if there was some apprehension that she required separate legal representation, that does not indicate to an honest and reasonable person that she had been subject to undue influence in signing the consent judgment” (at [45]).

  • Agripay Pty Limited v Byrne [2011] QCA 85 | austlii
    Supreme Court of Queensland Court of Appeal: McMurdo P, White JA, McMeekin J

    The husband borrowed money to invest in a tax avoidance agricultural managed investment scheme. There was some evidence that the benefits of this investment were to go into a joint superannuation fund for the couple. His wife guaranteed his loan. The Chief Justice at trial set aside the guarantee on the basis that it was unconscionable. The basis of this finding was that the first the wife knew that she was required to be involved in the scheme was when she was told she had some documents to sign so that her husband could take advantage of the investments. If she did not sign, he could not use the scheme to solve his tax problem. She did not read the application before she signed it as guarantor or receive independent advice before signing. She was upset and felt she was being ambushed. She had blind faith in her husband, notwithstanding his sometimes indifferent personal treatment of her. The couple were both doctors. The Court of Appeal dismissed the appeal and held that a principled application of the rule laid down in Yerkey and confirmed in Garcia requires that the lender be imputed with knowledge about the ‘trust and confidence’ in this relationship, and had to do more to ensure her informed consent. The lender had not provided any advice to her or ensured that that advice was given by an independent advisor. Arguments were raised by the appellant about the high levels of education of both and the general understanding of the wife about what she was guaranteeing and that the scheme financed was to benefit them both.

    McMurdo P

    “There seems to be no sound reason why these principles should be limited to wives entering into guarantees of their husbands' liabilities. Human weaknesses and unconscionable conduct are not limited to heterosexual marriage relationships. These legal principles should apply equally to all vulnerable parties in personal relationships” (at [4]).

    “It may seem odd that in this case a practising medical practitioner with some business experience can avoid the obligations of her guarantee under Garcia. But the respondent is not disentitled to the protection of the law because she is tertiary-educated. It must be remembered that the principles explained in Garcia over 13 years ago have long been the law in Australia. Commercial lenders like the appellant, which require partners of borrowers to guarantee their partners' loans, should be well aware of their legal obligations to ensure such guarantors understand the purport and effect of their guarantees and the transactions to which they relate” (at [27]).

    “The evidence before the primary judge was sparse, both as to the likelihood and extent of any profit to the joint superannuation fund or generally from the agricultural managed investment scheme. At best, it was that there was some prospect of an eventual profit which may have benefited the family unit if it remained functional; and some small portion of any eventual profit may have found its way to the joint superannuation fund. But the short term benefit of a lower tax bill and any profit received in the long term was essentially for Dr Murray Byrne. There was no clear evidence that the respondent would actually profit from the scheme. … The evidence favoured the conclusion that the prospect of any profit to the respondent was speculative. Even if she did receive some eventual modest benefit, it was likely to be neither direct nor immediate” (at [11]).

    White JA

    “Ultimately, cases where a wife seeks to be relieved of the burden of her contract of suretyship will depend on a close analysis of the particular facts. [The lender] submitted that the learned primary judge took an indulgent view of Dr Byrne’s want of understanding against her involvement in many of the financial activities of her husband. This is to elevate too highly those activities. The use of a family trust to protect assets in this case involved the purchase of two or three paintings by well known Australian artists. The learned primary judge’s acceptance of Dr Byrne’s limited involvement in the running of her husband’s medical practice was open on the facts. Her evidence that she attempted to bring some financial order into her husband’s affairs by managing the household bills from their joint account (required as a condition of her visa) was not challenged. But she was unable, apparently, to exercise any influence over him to plan for his tax obligations and her evidence of his purchase of a $390,000 car when he had looming liabilities suggests just how little influence she had. No matter how intelligent she might have been, the emotional pressure that she felt at the time the transactions were entered into was of a kind for which in part the rule had been developed and in respect of which the [lender] could relatively easily have dealt. … [The lender] also submitted that Dr Byrne gave no evidence to the effect that if fully informed and given time to reflect she would not have entered into the contract. She did not need to do so. This was not a defence of misrepresentation …” (at [66]).

  • Commonwealth Bank of Australia v Sandra Lee Tarrant [2011] NSWSC 1087 | austlii
    Supreme Court of New South Wales: Harrison AsJ

    The wife gave a guarantee for her husband’s loan. She sought relief under undue influence and the Contracts Review Act 1980 (NSW). The wife was an experienced nurse with no knowledge of the business world. She relied on her husband to do all business negotiations and make all decisions in relation to business and legal matters. She says that her husband was the only person that she relied on for advice prior to signing the transaction and she did not have any legal advice about the loan or mortgage documents prepared by the bank. The Court held that the difficulty with the wife’s defence of undue influence was that there is no evidence to establish that the bank had any knowledge of her arrangements. The wife signed the mortgage and loan documentation and she signed an 'acknowledgment by borrower' contained in the Guarantor's Servicing Acknowledgements and the bank had recommended that independent legal and financial advice be obtained. The Court held that Ms Tarrant could proceed to trial with a defence under the Contracts Review Act.

    However, in the following case Commonwealth Bank of Australia v Tarrant & Hawkins (No. 2) [2012] NSWSC 302, Davies J found that the wife was bankrupted on 18 October 2011, and because of this she had no legal interest or right to defend the proceedings. That right had passed on the making of a sequestration order to her trustee in bankruptcy.

  • Bank of Western Australia Ltd v Abdul & Anor [2012] VSC 222 | austlii
    Supreme Court of Victoria: Croft J

    A husband and wife gave various guarantees with respect to financial facilities agreements whereby moneys were advanced to four companies at their request. The wife relied on Garcia with respect to the transactions. Additionally, in relation to the guarantees, the pleadings raised the issue of unconscionability against the bank. The Court found that it would be unconscionable for the bank to seek enforcement of the guarantees against the wife. She did not know what documents she was signing and that, even had she known, she did not understand their nature and effect. The Court found that the evidence indicated that she was a volunteer. The Court preferred the evidence of the guarantors to the bank employee and placed no weight on statutory declarations that the guarantor had received legal advice given the circumstances.

    Croft J

    “Unlike the professional women in Garcia and Byrne, at the time of signing of the documents, it was submitted the second defendant did not even understand what a guarantee was, let alone the extent of any potential liability to Bankwest which might flow from its execution. Additionally, the evidence was that … the second defendant did not understand what the documents she was signing were, and her unchallenged evidence was that had she known she could lose her family home and end up bankrupt as a result of signing them, she would not have done so. … [T]he picture painted of the process was of a reasonably thick pile of paper, being the documents, with tags of some sort attached to the various signing pages to which the second defendant was directed for the purpose of placing her signature in the appropriate signing box. The evidence indicates that the physical process adopted for the execution of these documents meant that unless one dismantled the “pile of paper” to examine each document in turn, one would not know what was being signed. The evidence also indicates that there was some urgency in the execution of the documents. In any event, there is no evidence that the second defendant was invited to examine the documents in any detail, or at all, or told what she was signing, document by document.

    Having regard to the evidence of the second defendant as to the first defendant’s usual practice of not discussing matters of finance with her, together with evidence of only limited involvement on her part in the management of the businesses …, I am of the view that it can be inferred with an appropriate degree of confidence and assurance that the second defendant’s knowledge that these documents related to “refinancing” was insufficient to give her an understanding of the purport and effect of the transaction. Further, I gained the strong impression from the second defendant’s evidence that she did not have a high level of business and financial acumen. In saying this, I wish to make it very clear that this observation is not intended as a criticism or any negative comment in relation to her knowledge or ability. Clearly, the evidence indicated that the second defendant had supported the first defendant in the development of various businesses by the first defendant over a number of years and had contributed in a variety of ways, but principally by way of performing administrative tasks. … As a matter of logic, the fact that a person signs, for example, nine guarantees at various times, never understanding what they were signing, does not mean that when, say, the tenth is signed, they must be taken to know what they were signing and understand the nature and effect of that transaction. In the absence of evidence of an appreciation of the nature and effect of a guarantee, either during the signing of the nine or on the signing of the tenth, the situation does not change” (at [54], [56-57]).

    In relation to the advice given by the lender, Croft J stated:

    “Bankwest took no steps to ensure that documents sent to the second defendant, complete with warnings, were sent to her personally. Nor, it appears, did Bankwest ensure that the second defendant had adequate time to read the documents, much less understand them and have the opportunity to take independent legal or financial advice. In my view, the process of procuring the second defendant’s signature on the documents ignored all of the safeguards that should have been in place to ensure that the guarantees would be enforceable against her, both on the basis of the authorities to which reference has been made. The process was also at odds with the procedure contemplated by the Code of Banking Practice, which specifically deals with execution of guarantees” (at [76]).

    While, the lender relied on declarations that the guarantor received legal advice, the Court found:

    “… as a matter of policy, Bankwest should not be able to defeat the equity in favour of the second defendant by adding an additional document to the pile to sign, that effectively purports to waive her rights. It was submitted that the equity could be routinely defeated, without offering any protection to the people it is designed to protect, if banks were able to escape it by simply adding a waiver to be signed. As was observed on behalf of the second defendant, a similar waiver was signed in [Agripay v] Byrne, but that did not relieve the lender from the otherwise unconscientious nature of its attempt to enforce its legal rights” (at [80]).

  • Dowdle v Pay Now For Business Pty Ltd [2008] QSC 224 austlii   view appeal
    Supreme Court of Queensland: Daubney J

    A husband and wife refinanced their house so the husband could obtain a loan. The husband asked the wife whether she would assist in this regard. She agreed to stand as guarantor and provide a mortgage over the property. The bank sought to call on the guarantee and for possession of the home, calling for summary judgment on the terms of the contract. This application was rejected on the basis that there were arguably grounds for relief argued by the guarantor. (See trial decision below.)

    Daubney J

    “I would not be prepared to find, on a summary basis, that the fact that Mr and Mrs Dowdle had separated is necessarily fatal to reliance on the Garcia principles. Whilst in many circumstances, separation is likely to bring to an end the relationship of trust and confidence that exists between parties to a marriage, this is not necessarily always so. One can readily conceive of an ‘amicable separation’ in which there continues to be a close relationship involving a significant degree of trust (Equally, I should add, one can easily conceive of a married couple who continue to reside together but whose relationship is, in fact, poisonous and completely devoid of trust and confidence.) Furthermore, a separation is, by definition, not irreversible. For the law to assume that the trust that exists between a married couple automatically dissolves the moment cohabitation ends would be artificial. Are the courts to assume, in the case of temporary separations, that the Garcia principle applies one week while the parties are cohabiting, but ceases the next when they are not, only to revive a month later when the parties are wholly or partially reconciled? This aspect of the relationship between the Plaintiff and Mr Dowdle clearly requires investigation at trial”(at [35]).

  • Dowdle v Pay Now For Business Pty Ltd [2012] QSC 272 | austlii   view trial
    Supreme Court of Queensland: Mullins J

    The wife relied on three grounds to set aside her guarantee and mortgage. Firstly, on the basis of the trust and confidence between her husband and herself, being a volunteer and mistaken about the effect of the transactions, the lender should have appreciated that she may receive insufficient explanation for the effect of the transactions from her husband, but did not itself provide such an explanation and did not provide sufficient information – the Garcia defence. Secondly, she relied upon unconscionability. Thirdly, she argued the misleading and deceptive or was unconscionable conduct under the Trade Practices Act 1974 (Cth) (TPA) or the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act). The Supreme Court held she established the elements of Garcia and was successful under the Trade Practice Act, but did not meet the threshold for Amadio.

  • Bank of Western Australia v Ellis J Enterprises Pty Ltd [2012] NSWSC 313 | austlii
    Supreme Court of New South Wales: Harrison AsJ

    A wife gave a guarantee for her husband’s business loan. She claimed she was fully dependent on her husband and that they did not have an equal relationship. She felt that she was expected to be a traditional wife. She claimed she was entitled to relief under the Contracts Review Act 1980 (NSW), unconscionable conduct or the Garcia principle. The Court held the bank is to be taken to have understood that as a wife she may repose trust and confidence in her husband in matters of business and that the husband may not fully and accurately explained the purport and effect of the loan facilities and her obligations in relation to her guarantees secured by the mortgages of the wife. However, the wife understood that if the company defaulted on its obligations, she would lose her property even if she didn’t understand the full details of the transaction. She received advice from a solicitor and evidence of this was sufficient to discharge responsibility of the bank even if it had not advised her. The Court also found the contract was not unjust pursuant to the Contracts Review Act. No relief was granted.

    Harrison ASJ

    “I accept Christine Nassif's evidence that she has been assaulted by her husband a number of times but had not and that he can intimidate her by staring at her intently when she does not want to do as he says. Steve Nassif has not assaulted Christine Nassif since 2005. He was dominant partner in their marriage and she was financially subservient to him” (at [142]).

    However, her Honour found that the common law and statutory requirements were not fulfilled:

    “Christine Nassif was subservient to her husband in relation to financial matters. While she portrayed herself both in her affidavits and in court as not being cognisant with any of the financial dealings of her husband and Sherene, it is my view that Christine Nassif did have some basic understanding of their financial affairs. Certainly Christine Nassif was aware in October 2007, a few months after the Bankwest refinancing occurred, that there were money problems and that her husband's business the Speers Point development was not going well. In 20006/2007, Christine Nassif (wrongly) believed that the bank could not get the house if there was a problem as the Wentworth Fall property was solely in her name despite her obligations as a guarantor had been explained to her by an officer at NAB in about 2005. However, by August 2008, when Robert Barraket provided her with independent legal advice, she understood that the bank could take possession of her Wentworth Falls property if the moneys due to Bankwest were not repaid. Even though the explanation by Robert Barraket was brief, it was in clear terms "you could lose everything" (at [165-166]).

  • Commonwealth Bank of Australia v Starrs [2012] SASC 222 | austlii
    Supreme Court of South Australia: Peek J

    A husband and wife signed a joint guarantee for a loan to acquire a business secured by mortgages on various properties. At trial, the couple claimed relief on the basis of Yerkey and Garcia, but failed to establish a number of elements in each common law doctrine. There was also a claim that in the signing process, the bank failed to comply with the Banking Code which constituted a contractual breach. The Court found that the Code did not extend to these guarantees because of the size of the business.

    Peek J

    “To take an extreme, but nevertheless useful, example, it cannot reasonably be suggested that it is to be taken to be the intention of the parties that a guarantee for millions of dollars given by a mature, hardened entrepreneur experienced with all aspects of the law and practice regarding guarantees will be nullified upon him later establishing that he was not provided with various information packages designed for novices or that he was presented with the guarantee directly by the debtor (a person who could never have over-awed him) or that various other transgressions of the Code occurred, none of which transgressions could have produced a different result than would have occurred had the Code been scrupulously followed. In my view, the Code is largely a collection of “dos and don’ts” of bankers’ conduct, the origin of most of the provisions being traceable to various factual situations considered in decisions of the courts in areas including those of unconscionability generally and particular doctrines such as those in Yerkey v Jones, Garcia and … Amadio. At a basic level, the Code will serve the useful purpose of warning or reminding bankers of the things that must be done, and must not be done, in order to avoid, for example, an Amadio situation occurring. At that same basic level, but from the viewpoint of the guarantor, the fact that the Code does set out in digestible form what must, and must not, be done may be very useful at the stage of considering whether or not to give a guarantee. It may be of even greater value in the situation of a bank attempting to enforce a guarantee which had been given in circumstances plainly inconsistent with the requirements of the Code; a guarantor (particularly one who only reads the Code for the first time at that late stage) may then be put on notice of his or her potential legal redress in an Amadio situation. At a higher level, establishing that significant breaches of the Code occurred may be very important if they are relevant to a defined cause of action such as Amadio or Garcia unconscionability” (at [115-118]).

  • Commonwealth Bank of Australia v Duckworth [2012] WASC 476 | austlii
    Supreme Court of Western Australia: Master Sanderson

    A wife signed a guarantee after her husband told her that signing the guarantee was a formality and there was “nothing to worry about.” The wife argued that neither the lender nor anyone else explained the purport or effect of the guarantee to her. She was not given the opportunity to and did not read the guarantee before she signed it. She was not told she could obtain independent legal advice before signing it. The Court held that she failed the Garcia test and her case was a “sham”. This was because, the Court found, she had produced no evidence which supported her position. The only evidence of undue influence in this case was her evidence her husband was prone to shouting. To avoid such shouting matches, she tended to do what he wished.

    Master Sanderson

    “The only evidence of undue influence in this case is Mrs Duckworth's evidence her husband was prone to shouting. To avoid such shouting matches, she tended to do what he wished. In my view, that is a long way short of what would be required to establish undue influence. But the killer point in this case is the fact of independent legal advice. The principles set out in Yerkey v Jones and Garcia and in Amadio are not some sort of cheat's charter; nor are they a safe harbour for individuals who are wilfully blind and simply refuse to read relevant documents when they are encouraged to do so. The principles are designed to protect the vulnerable. The best way to protect the vulnerable is to make available to them disinterested independent legal advice. That is what has happened here and Mrs Duckworth can have no complaint” (at [124-125]).

  • Frontlink Pty Ltd v Feldman [2012] VSC 624 | austlii
    Supreme Court of Victoria: Pagone J

    A wife signed a joint farming venture agreement with her husband. She provided evidence that from time to time her husband gave documents for her to sign and that she would sign them. He did not explain what the documents were and she signed them because he had told her to sign them and did so because she had relied upon him. She said that she did not feel able to refuse to sign the documents and that it is possible that the agreement in question was one of the documents which she signed but could not say whether it was. The wife relied on Garcia for relief. The Court held there was no evidence of unconscionable dealing as against the wife either by her husband or the plaintiff, nor any basis to enliven an equity to make the agreement unenforceable as between the contracting parties through conduct between the husband and wife.

  • Morrison & Ors v 180 Capital Finance Pty Ltd (No. 2) [2012] VCC 1162 | austlii
    County Court of Victoria: Ginnane J

    A woman signed guarantees and indemnities and other documents in respect of the loan for her de facto partner. She argued the equitable defence of unconscionable conduct pursuant to Yerkey and Garcia. The County Court held she understood the effect of a guarantee. The Court cited White JA in Agripay Pty Ltd v Byrne that the intelligence of the wife does not rebut the fact that the bank should be aware of emotional pressure within a relationship. The lender knew she took no steps to advise herself and did not ensure she received advice. However, relief was refused on the basis that Morrison transacted without any influence and was aware of the nature of transaction she entered.

  • NAB v Savage [2013] NSWSC 1718 | austlii
    Supreme Court of New South Wales: Adamson J

    A wife provided guarantees for six separate loans on properties and for her husband’s business loan. These guarantees were secured by mortgages on two properties. Mrs Savage was a co-borrower in all facilities except for the business loan. Each obligation owed by Mrs Savage to the bank was secured by the mortgage over their home or their farm, or both. Although the evidence did not establish that Mrs Savage signed all of these agreements, she accepted that, absent equitable intervention, she was bound by them. She relied on a Garcia defence. She spent less than 15 minutes at the bank on each occasion of signing. The husband initialled all the statutory declarations about advice. There was no evidence that the bank manager sought to explain to her or had reason to believe that the documents were explained to her. Usual banking practice not followed. However, she was unable to establish that she was a volunteer in any of the loans except her guarantee of her husband’s business. She did not need to establish that she would have acted differently if she had known about the extent of her liability.

    Adamson J

    “The various demands on Mrs Savage's time left her with neither inclination for, nor interest in, reading transactional documents that her husband brought home for her, or for which she was required to attend the Bank, to sign. She was content to sign the documents without reading them because she was happy to go along with whatever decision her husband had made about the acquisition of assets or investments. She understood that the documents she was asked to sign were "important legal documents". She considered it to be inconvenient to have to go to the Bank to sign documents because of her other commitments and because she was prepared to sign anything her husband asked her to. … Even when Mrs Savage realised, in 2010, that things were going badly as far as the family finances were concerned, she still signed the Deed because her husband told her that it was the best thing for her to do. She did not see the need for independent legal advice because, although she knew solicitors who practised locally and felt comfortable with them, she was prepared to do whatever her husband thought best” (at [60] and [64]).

  • Code of Banking Practice 2013 | bankers.asn.au
    Australian Banking Association

    This revised Code of Banking commenced on 1 February 2014 and all major financial institutions have adopted it. The Code now provides that it will not accept as a co-debtor a person who will clearly derive no benefit from the transaction (s 29.1). All guarantees must be limited to specific amounts rather than unlimited credit facilities of the borrower (s 31.1). There is no specific mention of wives or partners in the Code. However, as it is simply a code of practice it is subject to the operation of the common law. The Code is structured around a process for facilitating informed consent for all guarantees by individuals for personal or small business loans.

    The provisions of the Code appear to implement most of the recommendations made by the NSW Law Reform Commission Report in 2007. It provides that the bank will give the guarantor a prominent notice that:

    • you should seek independent legal and financial advice on the effect of the Guarantee;
    • you can refuse to enter into the Guarantee;
    • there are financial risks involved;
    • you have a right to limit your liability in accordance with this Code and as allowed by law; and
    • you can request information about the transaction or facility to be guaranteed.

    The bank will also provide the guarantor with information about the progress of the debt, if the loan is contingent upon the provision of the guarantee and financial information about the debtor.

    The Code also provides for one day after information provided to the guarantor to decide unless the guarantor has obtained independent legal advice after having received the information (s 31.1). The Code provides that the debtor will not be allowed to procure the guarantee (except if a lawyer or a financial advisor) and not be present at the signing of the guarantee.

  • Bendigo & Adelaide Bank Ltd v Torbay Enterprises Pty Ltd [2014] WASC 191 | austlii
    Supreme Court of Western Australia: Master Sanderson

    The bank lent money to the company with a guarantee provided by the wife of the director of the company. There was a variation to the loan agreements which subsequently drew the company defendant in as a borrower and guarantor. The husband and wife had been together for approximately 19 years. The companies were run by the husband. His wife had no involvement in these businesses, but ran a business of her own. The couple kept their finances separate - each having their own bank account. The wife argued that she had no knowledge of the business affairs or financial position of the companies or her husband’s finances in general. The husband asked his wife to guarantee, using her company, restructuring of his financial affairs. She understood that it would be limited to $550,000. The loan itself would be secured over a property which was valued at over $1 million. She therefore felt it to be a transaction that would require no payment herself. She was wrong as there were other debts and therefore the guarantee was likely to be called upon as the debtor was unable to pay. She received legal advice not to enter into the guarantees.

    Master Sanderson

    “This case represents almost a text book example of what a lender in the position of the plaintiff has to do to ensure a wife providing a guarantee is fully informed as to her potential liability. The [lender] recommended the [wife] see a reputable firm of solicitors and would not enter into a transaction until that was done. [The bank representative] explained the transaction, told the [wife] what her potential liability was and recommended she not sign the guarantees. It is difficult to imagine more disinterested independent and, as it turned out, correct advice. In no way, could it be said that [the wife] was not fully apprised of her obligations and potential liability. Armed with the certain knowledge that the [wife] was aware of what might happen if she signed the guarantees, the [lender] went ahead with the transaction. It was entitled to do so. It is difficult to know what more it could have done to satisfy itself the fourth defendant knew exactly what she was doing. In my view, there was no prospect the [lender’s] actions in seeking to enforce the guarantee could be seen as unconscionable” (at [16-17]).

  • NAB Ltd v Wehbeh & Anor [2014] VSC 431 | austlii
    Supreme Court of Victoria: Macaulay J

    A wife provided a guarantee of her husband’s business loan with a mortgage on the home. When they separated and the husband went bankrupt, the bank sought possession of the property. The wife claimed relief on the basis of unconscionable dealing and undue influence. She claimed she had no business experience, was dependent on her husband and the guarantee was procured by her husband. However, she obtained independent legal advice about the transaction. The bank also pointed to her directorship in the company and some active participation in the conduct of the business. The Court found her to be a volunteer as she only received incidental benefit from the loans. No special disability applied. No relief was granted.

  • Westpac Banking Co v Diagne [2014] NSWSC 822 | austlii
    Supreme Court of New South Wales: Ball J

    The principal facilities were a loan obtained by Mr and Mrs Diagne to acquire their home and a Commercial Loan Facility to enable them to buy a property in Enmore from which they proposed to operate a restaurant. Both loans were secured by registered first mortgages over the relevant properties. Mr and Mrs Diagne contended that the bank made misrepresentations or engaged in misleading or deceptive conduct which caused them loss. They plead an alternative claim based on estoppel. They also make a claim under the Contracts Review Act 1980 (NSW) and claimed that the bank was negligent in advancing money to them and that it breached an implied warranty of fitness for purpose in reducing an overdraft that had been made available to their company. Finally, Mrs Diagne made a claim based on the principles in Yerkey v Jones. The husband and wife are from Senagal. He spoke English well and had some business experience. She needed interpreter services. They received independent legal advice and the bank was given certificates of this. The Court found that Yerkey cannot apply to loans made directly to the wife (rather than guaranteeing loans to another). No relief was granted.

  • NAB v Smith [2014] NSWSC 1605 | austlii
    Supreme Court of New South Wales: Slattery J

    A husband and wife guaranteed a company’s loan obligations under various interrelated facilities. They mortgaged their family home to secure their guarantee obligations to the bank. The company defaulted on the loan. The bank called on the spouse’s guarantees and they sold their property and applied their equity in it to reduce the company’s liability to the bank. The bank then commenced proceedings to claim the rest of the company’s indebtedness. The husband and wife cross-claimed for relief on the grounds that their guarantees: were unjust under the Contract Review Act 1980 and were occasioned by misleading and deceptive or unconscionable conduct within the Australian Securities and Investment Commission Act 2001 (Cth) and the Fair Trading Act 1981. The Court had regard to the bank’s failure to follow the Banking Code it had adopted despite the couple signing standard releases. There was no adequate explanation provided and the bank did not do adequate due diligence as to whether the loans were able to be serviced by the company. The Court found that elements of statutory unconsionability and common law unconscionable conduct were fulfilled and relief granted. Other relief was provided under the Contact Review Act.

    Slattery J

    “I do not find labels such as "asset lending" particularly helpful in analysing whether Contracts Review Act relief should be granted in a case such as this. But what is clear in my view from the Court's detailed findings in the earlier factual narrative is that the Bank had reason to know Craig and Denise had not received financial advice. The financial advice certificates that the Bank received were too uncertain a basis to infer such advice had been given. Moreover the Bank knew that due diligence had not been done on the vendor's financial statements because the Bank had neither asked for, nor been given, material which would show that such due diligence had been done. Added to that the multiple departures from prudent banking practice on the Bank's side had the capacity to increase the riskiness of this transaction for Craig and Denise, warranting a finding of unjustness enabling the Court's intervention. The appropriate intervention in my view is that Craig and Denise's guarantees and mortgages over the Oyster Bay property be declared void. Contracts Review Act intervention is also warranted because of the conduct of GHS Financial in allowing signatures on the LT Services certificates to be forged and then for the certificates to be forwarded by facsimile to the Bank. This must have been the result of structural problems in the Bank's relationship with this mortgage broker” (at [352-354]).

Statutory approaches to STD

There are a number of statutory instruments which provide possible grounds of relief from spousal guarantees. At the federal level, the Trade Practices Act 1974 (Cth) provided remedies where there had been a misrepresentation or unconscionability, as did Fair Trading Acts at the State level. In 2001, the Australian Consumer Law replaced these provisions and the Australian Securities and Investment Commission Act 2001 (Cth) makes provisions for relief for unconscionable conduct in the provision of financial services. However, cases relating to STD are rarely solely commenced under these provisions either because they do not provide further protection than the common law, or they are of less use as they require attributing responsibility to the bank.

In 2006, a NSW Law Reform Commission report proposed a national model introducing mandatory structural reforms focused on enhancing informed consent of the guarantor. This has not eventuated. However, the Commonwealth has introduced the National Consumer Credit Protection Act 2009 (Cth) which provides protections for consumer transactions, but does not cover the many instances of STD for business credit mapped here. The Australian Banking Association’s Code of Banking Practice 2013 (adopted by all major financial institutions) implements a number of recommendations of the NSW Law Reform Commissioner report (see Code and cases in previous section).

In NSW, the Contract Review Act 1980 (NSW) has long provided grounds on which wives can contest the validity of a guarantee on the basis that the deal was harsh or unfair. The potential grounds for relief are wider than the common law – looking at contract terms as well as procedural ‘unfairness’. In addition, there are a number of cases mapped where wives succeeded in establishing that the contract was unfair under this Act where relief would not be available under common law principles because the court found that the wife received some benefit from the transaction. Since 2002, NSW courts have also been more attuned to circumstances of STD of family guarantors of imprudent loans, particularly when the security offered is a mortgage on the family home. This provides a unique jurisprudence unavailable in other jurisdictions.

1974 - 2015: Statutory instruments, Bills and cases

  • Trade Practices Act 1974 (Cth) | austlii

    This Act provided, inter alia, consumer protection for actions of a corporation in trade and commerce, including prohibiting ‘misleading or deceptive conduct’ (s 52) and unconscionable conduct ‘within the meaning of the unwritten law (s 51AA) and unconscionable conduct in the supply of goods and services and certain business transactions (ss51AB and 51AC).

    This Act has been superseded by the Australian Consumer Law (ss 18, 20-22) and the Australian Securities and Competition Law 2001 (Cth) in relation to financial services (ss 12CA- 12CC).

    Cases relating to STD were rarely solely commenced under these provisions either because they do not provide further protection than the common law or are of less use because attributing responsibility to the bank is more difficult. The more flexible statutory remedies are often not needed in cases where the spouse seeks to have the guarantee set aside.

  • Fair Trading Acts introduced across the country in 1987

    These Acts were introduced to provide consumer protection that had a wider coverage than the Commonwealth Trade Practices Act 1974 (Cth) because the States have power to regulate businesses that are not incorporated. These Acts were brought in across the country in 1987 (for most jurisdictions) and many continue in force even after the enactments of the Australian Consumer Law in 2001 and the Australian Securities and Investment Act 2001 (Cth).

  • A Pocket Full of Change (‘The Martin Report’), 1991
    A Commonwealth House of Representatives Standing Committee on Finance and Public Administration

    This Committee, chaired by S Martin MP, produced a report into banking and deregulation in 1991. It found a ‘disturbing’ common practice of banks obtaining guarantees from ‘relatives and friends of business proprietors in relation to business borrowing…’ (p. 164). The Committee recommended that unlimited guarantees in this context be banned and there be a code of industry practice established requiring full disclosure about the borrower to the guarantor. These recommendations have to a certain extent been incorporated in the latest version of the Code of Banking Practice in 2013.

  • Alexander Gregg v Tasmanian Trustees Ltd [1997] FCA 128 | austlii
    Federal Court of Australia: Merkel J

    Mr and Mrs Gregg granted a mortgage over their home to secure a loan to a business in which the husband was a director. This case was pleaded on ss 51AA and 52 of the Trade Practices Act 1974 (Cth) that her husband made misleading representations about the nature of the loan and did so as an agent for the lender. This argument failed. However, the Court found that there was a material misrepresentation by the other directors of the company to Mrs Gregg. The court also found that it was unconscionable conduct by the lender in the circumstances knowing of the misrepresentation, and granted relief under the Act. The Court considered whether the principle from Yerkey had been overruled.

    Merkel J

    “It is quite clear from the decision in Yerkey v. Jones itself that the presumption was applied in the context of the statutory and sociological framework that existed in relation to married women in Australia in the late 1930's. World War II led to fundamental changes in the role of women in the Australian workforce. During and after the War, women's, especially married women's, participation in the paid workforce rose steadily. As historian Professor Marilyn Lake recently wrote, far from being under a post-war "condition of house arrest", that participation led to post-war pressure to provide married women with a right to work in the Federal Public Service and the banking sector as well as rights to equal pay and work opportunities. As a consequence of such pressures, over time, the role and economic independence of married women changed. The present framework is different to that of the late 1930's in many fundamental respects. It is, and is accepted as, commonplace that married women are likely to be employed in all sectors of the workforce and in all occupations and professions. In doing so it is expected that married women might occupy positions of legal, financial or corporate responsibility. Equal pay for equal work has now been long accepted as a right for all women. Affirmative action programs have been undertaken, as a matter of public policy, in order to assist that outcome for all women. Equal opportunity legislation protecting women from discrimination, inter alia, in relation to employment on the grounds of gender, pregnancy or marital status has been enacted throughout the Commonwealth… . Whilst the present reality is that gender inequality in the workforce may still persist the assumptions which formed the very basis and rationale for the presumption in Yerkey v. Jones in favour of a married woman can no longer be made or regarded as applicable to present Australian society. These factors do not lead me, as a Judge at first instance, to decline to follow or apply Yerkey v. Jones. Rather, they lead me to the conclusion that the equitable presumption as to a matter of fact in Yerkey v. Jones is not applicable as a precedent in the fundamentally different legal and factual environment which exists in Australia today. In my view the conclusion of the Court of Appeal in Garcia as to the inapplicability of the principle or presumption of fact said to be established in Yerkey v Jones in modern Australian society is clearly correct.”

    However, his Honour continued:

    “However, the judicial deconstruction of the laws "tender treatment" of married women should not lead to sight being lost of the true rationale for that treatment. … Relationships of confidence and trust of the kind which gave rise to the presumption in Yerkey v. Jones abound in many intimate personal relationships in which emotional dependence or influence leaves one party particularly vulnerable to the other, who using the language of Dixon J, has the "opportunity of abusing the confidence". That situation was succinctly summarised by the Australian Law Reform Commission in its discussion on "sexually transmitted debt" … Further, development of the law in this area should not lose sight of the social context in which the problem of ‘sexually transmitted debt’ arises. In her article on "Sexually Transmitted Debt - A Feminist Analysis of Laws Regulating Guarantors and Co-Borrowers" (1995) 4 Feminist Law Journal at 93 Nicola Howell….”

    Feminist literature cited by Merkel J:

    • ALRC 1994;
    • Howell 1995.

    Feminist commentary

    Negative assessment

    “Equitable intervention in domestic relational transactions is not a recent phenomenon; however, courts are increasingly adopting stereotypical language and assumptions as the basis for such intervention [citing example of Gregg].” (Haigh and Hepburn 1997, p.299)

  • Vladimirka Radin v Commonwealth Bank of Australia [1998] FCA 1361 | austlii
    Federal Court of Australia: Lindgren J

    This case was brought under the Trade Practices Act 1974 (Cth). The wife and the husband’s mother provided security for the husband’s business loan with mortgages on their homes. They sought to set aside the mortgages on the basis of claims of breach of duty of disclosure and unconscionable dealing by the bank, and pursuant to provisions of the Contracts Review Act 1980 (NSW). The wife also relied on Yerkey and Garcia principles for relief.The wife made serious allegations of violence against her husband. In particular, she alleged that she signed mortgages and other documents in favour of the bank because of her fear of what her husband would do to her if she did not sign. At the time the couple were separated. The wife claimed that the bank was actively concealing from her the fact that it was allowing the maintenance cheques to be met as part of its selective honouring of cheques in collusion with her husband. The Court held that she knew that she was liable for the indebtedness of her husband as well as for the joint borrowings more directly connected with the couple's investment in real estate. The Court also held she was his “business partner” and thus not a volunteer. The Court held she did not satisfy the Garcia principles and that the bank did not know about any violence of the husband or dependence by the wife.

    In regards to the husband’s mother the court found no extraordinary circumstances which would justify any order against the bank in favour of her. Her decision to trust and support her son to the extent of mortgaging her home to support his business was not a vitiating factor.

    Feminist commentary

    Negative assessment

    “[T]he views expressed by Lindgren J … seem at odds with the Garcia decision itself, in that the majority emphasised that the critical issue for the creditor was whether the surety and debtor were married, and that the wife did not need to actively show that she reposed trust and confidence in her husband.” (Collier 1999)

  • Westpac Banking Corp v Glenn Robert Jarrett & Anor [1998] FCA 887 | austlii
    Federal Court of Australia: O’Connor J

    A husband and wife became guarantors for the husband’s business using their matrimonial home as security. Both the husband and wife argued to have the mortgage set aside on the grounds that the mortgages and loan agreements were obtained in circumstances that were unjust, relying on the provisions of the Contracts Review Act 1980 (NSW) and Trade Practices Act 1974 (Cth). The husband and wife submitted that the bank was sufficiently aware of the wife’s circumstances as to put it on notice that her will was suborned by her husband. The wife had limited business experience. Neither spouse had obtained independent legal advice. They argued that the principles in Garcia were fulfilled. It was also argued that, at or around the time of execution of the mortgage and loan agreement, the wife was under a special disability (an advanced stage of pregnancy) such that it would be unconscionable to enforce the guarantee against her. The Court held there was evidence that the wife knew what she was doing, agreed with her husband to do so and did not communicate, at any time, to the officers of the bank any health difficulties she was experiencing. As she was not providing a third party guarantee, the Garcia principles did not apply such that there was an obligation on the bank to tell her to obtain independent legal advice. No relief was granted.

  • Davies v Australia & New Zealand Banking Group Ltd [1999] FCA 1104 | austlii
    Federal Court of Australia: Heerey J

    A wife sought an interim injunction to restrain the bank from taking steps to obtain possession of her house which was provided as security for a guarantee of her husband’s loan. She relied on the provision of Part IVA of the Trade Practices Act 1974 (Cth) relating to unconscionable conduct and claimed to satisfy the requirements of the principles under Garcia. The Court dismissed the application for an interim injunction. The Court did not accept the wife’s evidence as to her lack of knowledge and understanding of the nature of a mortgage and guarantee. The Court found she had been closely associated with the business fortunes of her husband over the years. Her dealings with the bank in recent times were inconsistent with somebody not understanding the nature of a mortgage and the consequences of default under a mortgage. No relief was granted.

    Feminist commentary

    Negative commentary

    “In the absence of actual influence, where the wife does not establish that she did not understand the nature and effect of the security documents, she will be unable to have the documents set aside under the rule in Yerkey v Jones as explained in Garcia [see Davies v Australia & New Zealand Banking Group Ltd].” (Cockburn 2000, pp.270-271)

  • Australian Securities and Investments Commission Act 2001 (Cth) | austlii

    This Act contains provisions which relate to the behaviour of financial service providers requiring guarantees for loans. The provisions, ss12CA, 12 CB and 12CC, replace the provisions contained in the Trade Practices Act 1974 (Cth) s51AA-51AC, and now prohibit ‘unconscionable conduct in connection with financial services’. These provisions apply to consumer transactions and certain business transactions like guarantees for less than $3 million. The statutory definition of unconscionability is not tied to the common law.

  • Report 107, Guaranteeing Someone Else’s Debts (2007) | austlii
    New South Wales Law Reform Commission

    In 1999 the Attorney General asked the New South Wales Law Reform Commission to inquire into and report on the legal framework for the protection of guarantors of small business and other loans. The Commission recommended the need for a national ‘model law’ relating to contracts guaranteeing another’s debt. The content of the law would involve, somewhat like the UK model, structural reform of the process of procuring a guarantee focused on informed consent of the guarantor. The Report had regard to the feminist critiques of common law approaches which favour efficient process for the banks rather than focusing on relief for the wife’s STD. It also pointed to the fact that providing more information about the transaction to the guarantor might be ineffective if pressure is still being exerted by the spouse at the time of signing. Thus the Report recommended that there be minimum of one day between advice given and signing, and signing without the borrower being present. The Australian Banking Association’s Banking Code of Conduct 2013, adopted by all major financial institutions, implements these measures. The National Credit Code has similar requirements for consumer contracts.

    Literature cited in the Report in relation to STD:

    • Otto 1992;
    • Baron 1995;
    • Fehlberg 1997;
    • Fehlberg 1997A;
    • Haigh and Hepburn 2000;
    • Dunn 2000;
    • Pascoe 2004.
  • National Consumer Credit Protection Act 2009 (Cth) and National Credit Code | austlii

    This Act commenced 1 July 2010 and replaces the Uniform Consumer Credit Codes enacted in each state and territory. This Act was amended by the Consumer Credit Legislation Amendment (Enhancements) Act 2012 (Cth). The Australian Securities and Investments Commission is responsible for regulation of consumer credit and administers this Act. The Act provides a number of additional requirements where a guarantee is entered into in relation to a credit contract regulated by the National Credit Code. Sections 76-81 allow a court to consider ‘unjust’ transactions. However, this Code does not apply to business borrowings and will therefore not apply to many situations of STD in the case of partner guarantees of family companies or businesses.

  • Australian Consumer Law (2011)

    The Australian Consumer Law (ACL) commenced on 1 January 2011. It is Commonwealth legislation made as a cooperative reform of the federal Government and the governments of the States and Territories under an intergovernmental agreement. The ACL replaces the Trade Practices Act 1974 and the Fair Trading Acts in States and Territories. The relevant parts of the ACL replace and replicate the prohibitions on unconscionable conduct within the meaning of the unwritten law (s 20) and unconscionable conduct in connection with goods and services (ss 21 and 22), as well as prohibiting misleading or deceptive conduct (s 18). Cases relating to spousal guarantees are rarely solely commenced under these provisions presumably frequently because of an absence of evidence of the bank’s awareness of or participation in the guarantor’s lack of informed consent.

  • National Consumer Protection Amendment (Credit Reform Phase 2) Bill 2012

    This document was only in the form of an exposure draft released at the end of 2012 by the former Labor government. It was called ‘Phase 2 of the National Credit Reforms’. Any form of this Bill seems unlikely to be presented to Parliament soon.

    This draft Bill proposed more stringent obligations applying to a ‘protected small business credit contract.’ A ‘protected small business credit contract’ is defined as a small business contract where:

    • the predominant use of the credit is to refinance liability under an existing small business credit contract;
    • the borrower has defaulted in respect of the repayments due under that contract; and
    • the credit contract is secured by a mortgage over residential property.

    The lender would be required to make certain inquiries and there would be a prohibition on entering into, or increasing the credit limit of, the contract if it is unsuitable for the business. These measures may have addressed some of the underlying financial issues of STD in family businesses.

1980 - 2015: NSW cases under the Contracts Review Act 1980

In 2002, in Elkofairi v Permanent Trustee Co Ltd, the NSW Court of Appeal recognised the importance of the family home as a unique asset. It stated that there was a public interest in finding that such a transaction is ‘unjust’ when the lender is indifferent to the purpose of the loan and the ability of the borrower to repay (ie. ‘pure asset lending’). These considerations have provided a basis on which a number of guarantees by wives (and de facto partners and parents) have been set aside in NSW under the Contracts Review Act 1980 (NSW). The mapping below only provides cases in which the claim for relief was based solely or primarily on these provisions. This statutory relief is unavailable in other jurisdictions, but judicial reasoning in these cases has influenced considerations of facts in other States’ courts.

  • Contracts Review Act 1980 (NSW) | austlii

    This NSW Act gives a court discretion to set aside or vary a contract where the contract is unjust looking to the circumstances at the time it was made, and with regard also to the public interest. There is a non-exclusive list of factors the court may consider such as inequality of bargaining power and whether pressure was exerted on the person transacting. The Act allows consideration of the circumstances of forming a contract and its performance as well as the nature of terms. This wide focus has meant that the majority of cases mapped here concerning the effects of STD in NSW cases ask for remedies under the Act. While the Act only pertains to consumer contracts and will not be available for a contract for the purposes of trade, business or a profession, in the situation of a personal guarantee for another’s business, its provisions apply. As confirmed in cases in the early 1990s, the Act does not require knowledge by the lender of influence by the borrower or disadvantage of the guarantor. This makes the Act broader than the common law doctrines and similar in effect to the evidentiary assistance provided by the Yerkey principle in spousal guarantee cases. The Act’s scope is not limited to the wife and has therefore been successfully pleaded by other people who are subjected to unfair contracts (not mapped here).

    This is a current Act that continues to have an important role in allowing the court to consider the fairness of spousal guarantees executed in NSW.

  • West v AGC (Advances) Ltd (1986) 5 NSWLR 610
    Supreme Court of New South Wales Court of Appeal: McHugh and Hope JA, Kirby P (dissenting)

    The Court of Appeal dismissed an appeal of a judgment upholding a deed of loan and guarantee of a wife, West, her husband and a company and three directors. Her husband was employed part-time by the company. West believed that the loan was discharging a mortgage on her house, as well as assisting the company. West provided the guarantee with the security of a second mortgage over her home. West was advised against the transaction by her son (an accountant) and barrister friend. She knew other wives of company directors who had refused to provide guarantees. McHugh JA described West as not a “suburban housewife” (at 631). The lender did not know that the company to which it was providing a loan was in financial trouble but could have discovered this from documents. When the company was wound up the creditor called on the guarantors. The appeal related to interpretation of provisions of the Contracts Review Act 1980 (NSW) as wider than the common law; operating ‘within and not outside the domain of the law of contract…’. The majority found that its provisions should be interpreted ‘liberally’ (at 631) so a contract can be “unjust” even if it does not qualify as unconscionable, harsh or oppressive. Nevertheless, the majority found that as the wife had been legally advised and was knowledgeable about the general terms, there was no unfairness or harshness. They also noted that the Act was available for consumer contracts not investments. No relief was provided.

    Kirby P dissented as he found that West had not received independent legal advice so as to fully appreciate the nature of her liability.

    McHugh J

    Under the Contracts Review Act, the “contract may be unjust ‘because of the way it operates in relation to the claimant [substantive injustice] or because of the way in which it was made [procedural injustice] or both’" (at p. 620).

    Feminist commentary

    Negative commentary

    “The messages given to women by the case law are confusing. The only clear message that can be gained is that the discretionary provisions allow judges to emphasise certain facts in order to achieve a particular result. Whether they reduce, remove or reaffirm the liability of a particular woman will depend on the extent that the judges believe she has contributed to her own fate”. [Footnote: “Compare the majority and minority judgments in West v AGC (Advances) Ltd”] (Howe 1995, 101).

  • Collier and Anor v Morlend Finance Corporation (Victoria) Pty Ltd (1989) NSW Conv R 55 - 473
    Supreme Court of New South Wales Court of Appeal: Hope, Clarke, Meagher JJA

    This was an appeal from a decision dismissing a cross claim that certain transactions be set aside under the Contracts Review Act 1980. A husband and wife had become guarantors for their son’s loan to purchase a new business. Collier was accustomed to complying with her son's requests, even though manifestly to her own disadvantage. The trial judge found that at all material stages the husband and wife both knew what they were doing. The Court of Appeal held, dismissing the appeal, the lender was not party to the exercise of undue influence by the son under the general law. The lender did not have knowledge, either actual or constructive, of any vitiating factor. Nevertheless, Hope JA indicated that the statutory provisions are broader than common law in so far that there need not be knowledge of the undue influence on or disadvantage of the guarantor.

  • Beneficial Finance Corporation Ltd v Sheila Mary Julia Frances Comer (Unreported, 1991 - BC9102349)
    Supreme Court of New South Wales: Rogers J

    A wife signed a guarantee for a loan for her husband's business. She had little education and no commercial experience. She was also misled by her husband as to documentation she was signing, and whilst in the solicitor’s office she was distracted by their child. She contended that the contract was unjust with regard to the provisions of the Contracts Review Act 1980. The Court held that she never at any time made an offer of a guarantee. The lender was content to transact all its dealings with her through her husband, and therefore, the lender used her husband as its agent for the transmission of communications and is saddled with any incorrect statement that her husband may have made to his wife. The wife obtained no benefit whatsoever from the loan which was made to her husband. However, the Court did not make the order sought by the wife but rather ordered that there be a restriction on the guarantee which limited the obligation of the wife to her interest in one of the two properties only that were subject to the guarantee.

    Feminist commentary

    Neutral commentary

    “[I]n Beneficial Finance Corporation Ltd v Comer, Rogers CJ did not wish to be ‘in any way offensive or hurtful’ in outlining Mrs Comer’s circumstances. Although such descriptions could be considered necessary within the scope of the doctrines being applied, the judges often fail to realise that women present themselves as ‘archetypal females’ as a result of extreme social conditioning. This conditioning on the one hand prescribes for women a homemaking/childrearing role within the private family and on the other hand derides women for “choosing” not to become involved in business affairs. The unfavourable descriptions encourage us to think of women in stereotypical terms and therefore reinforce the stereotypes.” (Howell 1995, pp. 99-100).

    Negative assessment

    “The behaviour of other women has … been measured against a standard that more closely approximates a ‘feminine’ standard. Women whose conduct is measured against this standard are, not surprisingly, more likely to be successful, whether they take a more active role, or not” [including citing Comer]. … The facts that … Mrs Comer was distracted by the activities of her young child, when [she] signed [the] contract are relevant. In those situations, the debtor and/or credit provider could have exercised this alternative form of power by giving [Comer] more time, free of distractions and adequate explanations before insisting on a signature. The failure of the courts to recognise this experience of power as valid and relevant relieves the credit providers and male debtors of responsibility for their behaviour.” (Howell 1995, pp. 100, 106)

  • Gough v Commonwealth Bank of Australia (unreported 1994 - BC9402555)
    Court of Appeal New South Wales: Mahoney, Meagher JJA and Kirby P (dissenting)

    At the request of her husband, Gough provided personal security for her husband's business borrowings with a mortgage on her home. The husband was the principal and the wife was a director of the company. The accountant informed the wife that "for legal reasons" her name would go onto the papers for the company. The company was the source of the husband and wife’s family income. Gough appealed the trial judge’s refusal to grant her relief citing breaches of the Contracts Review Act 1980 on the following circumstances:

    • That she was a person of limited education having no capacity to understand technical legal language;
    • That the company was, in reality, her husband's business and that she had very little, if anything, to do with its running;
    • That the mortgage was signed "in the most casual of circumstances" at the defendant's home and she was given no explanation of what she was signing; and
    • That she had no independent advice before signing the mortgage - a matter of particular importance in the circumstances because it would have been obvious to the bank that the business of the company was in an unhealthy financial state.

    The Court of Appeal dismissed the appeal and agreed with the primary judge’s (Sully J) findings that the wife understood the nature of mortgage and had prior mortgages of her own. The bank manager had also advised both husband and wife of the risks of losing their home. No relief was given.

    Mahoney J described the requirement that, ‘as a general rule’ the bank was obliged to require the spouse to have independent advice as dangerous stereotyping. He considered it too great an imposition on a lender to expect them to investigate affairs associated with a spouse who was the guarantor to confirm that she had independent advice.

    Justice Meagher found that the bank was not put on ‘special notice’ when there was a wife providing a guarantee or in this particular fact situation because while she was not ‘extremely sophisticated or well lettered’ she was ‘no gaping rustic…’.

    Kirby P (dissenting)

    ‘… the whole circumstances of the case cried out for independent advice which the bank could [not] have given Mrs Gough… a clear ruling of this Court would establish a principle that would encourage the provisions of independent legal or other advice as, (in my view) the Act contemplated”.

    Literature cited by Kirby P

    • ALRC 1994;
    • Department of Prime Minister and Cabinet, Office for the Status of Women 1992;
    • O'Donovan 1985.

    Feminist commentary

    Negative assessments

    “[I]t has been argued that even to require banks in such situations to ensure that a guarantor has independent advice is too onerous… [u]nfortunately, this approach was adopted by the majority of the Court in the recent decision of Gough v Commonwealth Bank of Australia.” (Baron 1995, pp.48-49)

    “The New South Wales Court of Appeal’s response to Mrs Akins and Mrs Gough may be seen by a feminist as an example of a preference for the (male) bank officer’s version of the story over the woman’s story.” (Richardson 1996, p.384)

  • Hepburn v McLaughlins Nominee Mortgage Pty Ltd (Unreported 4239 of 1996)
    Queensland Court of Appeal: Davies JA, Thomas and Fryberg JJ

    A loan was made to a company controlled by a man who was bankrupt but which was guaranteed by his wife, Hepburn. She testified that her agreement to sign the security was procured by physical force and intimidation by her husband, and a promise to release her from it within a short time. She did not know about the company or that she had been made a director of it. The Court applied the NSW Contract Review Act 1980 to the facts of the case. Argument was also made on common law grounds of undue influence and duress. Despite Hepburn’s evidence, the Court of Appeal did not find that she was under duress when she signed and there was no evidence of constructive or actual notice by the lender of any undue influence by the husband. The appeal was dismissed and the mortgage enforced.

    Fryberg J

    “[Counsel] argued that duress and undue influence could be established on the basis described in the judgment of Dixon J in Yerkey v Jones. Whether that judgment ever established an independent principle capable of founding a defence in these circumstances may be doubted. In any event, there are two reasons why the argument must fail. First, the Supreme Court of New South Wales has held that the principle in Yerkey v Jones ought no longer be applied in New South Wales, and this guarantee is one the proper law of which is that of New South Wales. Second, on the evidence an equitable defence must fail, having regard to the considerations already referred to in the context of the refusal of discretionary relief under the CRA.” (at p. 25)

  • United Overseas Bank Limited v Tan and Ors (Matter No 10737/97) [1998] NSWSC 416 | austlii
    Supreme Court of New South Wales: Master Malpass

    A wife was a director of a company but left the conduct of the business activities in the hands of her husband. The activities were conducted with legal assistance. From time to time, the wife signed documents. Sometimes she attended at the lawyer's office with her husband to sign the documentation. At other times, the lawyer would bring the documents to their home for signature. The wife says that she did not read the documents and they were never explained to her. The wife argued that she was entitled to relief under either equitable doctrines or the provisions of the Contracts Review Act 1980 (NSW). The Court held that she did not have an arguable defence. Primarily, there was evidence that the Deed of Guarantee had been executed by her after receiving what purported to be independent legal advice. The Court would not set aside the default judgment against her.

  • State Bank of NSW v Hibbert and Also Groom v Hibbert [2000] NSWSC 628 | austlii
    Supreme Court of New South Wales: Bryson J

    A woman entered into a guarantor arrangement for her de facto partner’s business endeavours. Her claims to relief were based in part on advice, misrepresentations and communications allegedly made by the bank to her partner and passed on to her so that she acted on them. The Court found the principles in Garcia are not available for de facto relationships. However, the Court ordered the mortgage be set aside under the Contracts Review Act 1980 (NSW) because it was unreasonably difficult to comply with the conditions of the loan. She was not equipped by her educational background or otherwise to make an analysis of the business feasibility of the contract. There was an absence of availability to her of any expert advice analysing the business feasibility of the contract. The practical effect of the provision of the contract was not accurately explained but was misrepresented to her by her partner’s tactics.

  • Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413 | austlii
    Court of Appeal New South Wales: Beazley, Santow JJA, Campbell AJA

    A husband and wife gave a mortgage over their jointly owned home as security for a loan. Of that about $470,000 was applied in discharge of the existing mortgage over the property. The wife was unaware of how the balance of the monies were utilised. The wife appealed the decision of the trial judge who found in favour of the bank enforcing a mortgage. On appeal the Court of Appeal held she had not established an entitlement to relief under Yerkey. The respondent did not have express notice or any other information sufficient to put it on notice that the appellant was a volunteer. However, the Court held she was in a special position of disadvantage. There was evidence that her husband was domineering, non-consultative about family decisions and was aggressive and intimidating. Marital difficulties continued until about 1992 when she attempted suicide. She had little education and was illiterate. She had no income and this was a large borrowing secured over her only asset. This was apparent to the respondent from the loan application form and sufficient to put the respondent on notice of the appellant’s lack of capacity to meet the mortgage repayments and thus of the unconscionability of the transaction. Furthermore, the circumstances were also sufficient to make the mortgage contract unjust: Contracts Review Act 1980 (NSW).

    Beazley JA

    “In my opinion, notwithstanding that the respondent did not have knowledge of the appellant’s lack of education and her language and domestic difficulties, her lack of income, in the circumstances of this transaction – that is a large borrowing secured over her only asset, in circumstances where the application form failed to disclose any income for either husband or wife – placed her in a special position of disadvantage. Though the full extent of that special position of disadvantage was not known to the respondent, nonetheless, the absence of any relevant financial information was sufficient to put the respondent on notice of the appellant’s lack of capacity to meet the repayment obligations under the mortgage. That left as the only source of repayment the selling of her only asset, as again the respondent must be taken to have known” (at [56]).

    Santow J

    “Because relief is available under the wider doctrine of unconscionability, for the reasons stated by Beazley JA, it has not been necessary to consider whether the form of the transaction should matter. Here the lender lends under a transaction where the money is intended to go to the husband, though framed in terms rendering husband and wife jointly liable as co-principals. Such a situation may, in the eye of equity, involve a transaction of guarantee or, as sometimes described, constructive suretyship” (at [92]).

  • Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41| austlii
    Supreme Court of New South Wales Court of Appeal: Spigelman CJ, Handley, Basten JJA

    The trustee for a securitised mortgage program run by a company entered into a loan agreement with two married pensioners, secured by a mortgage over their home. This was their only major asset. The company employed an agent to assess loan applications on its behalf in accordance with specific guidelines. The couple’s loan application was deficient. It falsely described the husband as being employed, it did not state the purpose of the loan (leaving the item blank) and the wife's signature had been forged. The agent knew they were pensioners and not employed. Furthermore, the company did not verify the employment and income position of the couple or obtain details of the purpose of the loan, in accordance with the guidelines. The money was advanced to the couple’s daughter and by her into an investment akin to a pyramid selling scheme, which eventually collapsed. The couple sought relief from the loan agreement under the Contract Review Act 1980 (NSW). They were successful at first instance and the company appealed.

    The appeal was dismissed. The couple were entitled to have the contract set aside as unjust according to sections of the Contracts Review Act. The company was indifferent to the purpose of the loan and failed to verify other details of the loan application, which indicated that it was content to lend on the value of the security. Where the security is the sole residence of the borrower, there is a public interest in treating such contracts as unjust. Chief Justice Spigelman indicated that it may not have been found to be unjust if the company had made inquiries into the nature of the investment. The failure of the company to recommend that the pensioners seek independent legal or accounting advice was not significant to the finding of unjustness.

    Basten JA

    “To engage in pure asset lending, namely to lend money without regard to the ability of the borrower to repay by instalments under the contract, in the knowledge that adequate security is available in the event of default, is to engage in a potentially fruitless enterprise, simply because there is no risk of loss. At least where the security is the sole residence of the borrower, there is a public interest in treating such contracts as unjust, at least in circumstances where the borrowers can be said to have demonstrated an inability reasonably to protect their own interests, for the purposes … [of the Contracts Review Act 1980 (NSW)]. That does not mean that the Act will permit intervention merely where the borrower has been foolish, gullible or greedy. Something more is required …” (at [128]).

    Spigelman CJ

    “In many respects this case, in its basic structure, is similar to that considered by this Court in West v AGC (Advances) Ltd where the Court held, by majority, that the contract was not ‘unjust’. The Appellant in this case relies on a number of steps in the reasoning in West in support of its contention that the contract in the present case should not be found to be ‘unjust’. Of course each case must depend upon its own facts. Furthermore, West is now 20 years old. When the Parliament adopts so general, and inherently variable, a standard as that of ‘justness’, Parliament intends for courts to apply contemporary community standards about what is just. Such standards may vary over time, particularly over a period of two decades. There have been observations in this Court that the standards may have changed from those applied in 1986 in West… [citing the decision in Elkofairi v Perpetual]” (at [63-65]).

  • Riz v Perpetual Trustee Australia [2007] NSWSC 1153 | austlii
    New South Wales Supreme Court: Brereton J

    In this case Mr and Mrs Riz (the borrowers) sought relief from a mortgage to the lender as security for a loan to them both for an investment. They sought relief under the Contracts Review Act 1980. Mr Riz gave evidence that he came to Australia from Lebanon in early 1977, and that he could speak only basic English while his wife only understood some words and phrases. Neither Mr nor Mrs Riz ever lodged a tax return in Australia and operated a small food business. They received Centrelink benefits. They, as many people from the Syrian community in Sydney, unwisely invested in a fraudulent scheme and lost money. Their solicitor was negligent in advising them about the scheme. In this case, however, the Court did not accept their evidence about their poor financial position and denied relief under the Contracts Review Act. The Court also rejected the submission that the lender's failure to ensure the borrowers were independent financially made it an unjust contract and took note of the solicitor’s advice.

    Brereton J

    "The evidence does not demonstrate any indifference or recklessness on the part of [the lender], and I do not accept that, although [the lender] did not know the true circumstances of Mr and Mrs Riz, it ought to have ascertained them, or should be regarded as having been wilfully blind as to the income of its borrowers. ... A prospective borrower is not entitled to expect the lender to be alert for fraud by or on behalf of the borrower; and a lender is not required, in the interests of the borrower, to have a high index of suspicion for fraud by the borrower or the borrower's agent. … To grant remedies under the Contract Review Act on such grounds would be to convert an Act, intended to achieve just results, into an instrument of injustice. This case has two important features that distinguish it from Khoshaba. First, in Khoshaba, the circumstances that the statement of the purpose of the loan was left blank, and that [the lender] made no inquiry about its purpose, were decisive… . In the present case, the purpose of the loan - refinance and further investment - was stated… Secondly, for reasons already explained, there is no basis for concluding that [the lender] was in this case engaging in "asset lending". Mr and Mrs Riz were represented and advised by their own lawyer. [The lender] did not demonstrate the indifference referred to in Khoshaba, and did not engage in asset lending, but assessed the loan having regard to serviceability. ... Although Mr and Mrs Riz were the subject of unfair tactics, those were perpetrated not by or on behalf of [the lender] … . The false financial information, without which the loan agreement would not have been approved, was provided to [the lender] … on behalf of Mr and Mrs Riz ...” (at [78-80]).

  • Plasterboard Central Pty Limited v Blain [2009] NSWDC 44 | austlii
    District Court of New South Wales: Goldring DCJ

    A wife provided a guarantee for her husband’s business borrowings. The wife sought equitable relief, or relief under the provisions of the Contracts Review Act 1980. Her evidence was that she trusted her husband absolutely and that she left it to him to decide what was or was not necessary for the business. She understood that he would not permit her to sign a document which he thought was not in her interest. The Court held the interest of the wife was as a beneficiary of the family trust, which was in turn the beneficial owner of shares in the company. So she could not be regarded as a volunteer. There was no undue influence exerted over her. However, it was accepted that she did not understand her material liability. She was precluded from any remedy under the common law principles.

    However, the Court held the guarantee was unjust under the Contracts Review Act 1980 (NSW). The Court held that there was a material inequality of bargaining power which the lender exploited, no ability to negotiate and a difficult form to complete and understand. No legal advice was offered or obtained. The guarantee was enforced but limited to a specified amount.

    Goldring DCJ

    “The [wife] says that there was a clear and significant inequality of bargaining power. … First, the [wife’s] husband required the plaintiff to provide him with supplies on credit in order to carry on his proposed business. The [lender] was prepared to do so, provided [the husband] applied for credit in the way required, and also that he provided security for performance of his obligations. The unchallenged evidence from Ms Ross is that this included a personal and continuing guarantee from [the wife] as well, as she was the joint owner of the matrimonial home. In economic terms, the defendant and her husband had far less economic power than the plaintiff, and depended on the plaintiff” (at [53]).

  • Perpetual Trustee Victoria v Yap [2010] NSWSC 761 | austlii
    Supreme Court of New South Wales: James J

    A wife became a guarantor for her husband’s business borrowings. She had migrated to Australia as an adult and spoke very little English. She had previously entered into mortgages and had some understanding of the concept of a mortgage. However, she did not understand that, if she defaulted under a mortgage which she had given over her home, her home could be sold. The wife argued she habitually entrusted all financial matters to her husband, because of his superior command of English and his business experience. She entered into each agreement at the instigation of her husband. She did not receive any legal advice before entering into either agreement. The Court held that she was entitled to relief under the Contracts Review Act 1980 (NSW), but that the Court did not then have to consider her claims for relief under common law principles. The Court found the lender had notice at the time of each loan agreement of her “disabling” factors (that she was not a native English speaker and had only limited English language skills, did not have a full understanding of the nature of a mortgage and entrusted all financial matters to her husband). Furthermore, the lender had notice at the time of each loan agreement that she was a married woman and hence there was a possibility of emotional subservience to her husband, and that she was the sole owner of the property being offered as a security. However, she was found to have received a benefit from the borrowings and was a volunteer. The Court held that it was not appropriate for a lower court to apply the Yerkey principle to transactions other than a guarantee as a volunteer, but the contracts were held to be ‘unjust’ under the provisions of the Contracts Review Act 1980.

  • Commonwealth Bank of Australia v Sandra Lee Tarrant [2011] NSWSC 1087 | austlii
    Supreme Court of New South Wales: Harrison AsJ

    The wife gave a guarantee for her husband’s loan. She sought relief under undue influence and the Contracts Review Act 1980 (NSW). The wife was an experienced nurse with no knowledge of the business world. She relied on her husband to do all business negotiations and make all decisions in relation to business and legal matters. She says that her husband was the only person that she relied on for advice prior to signing the transaction and she did not have any legal advice about the loan or mortgage documents prepared by the bank. The Court held that the difficulty with the wife’s defence of undue influence was that there is no evidence to establish that the bank had any knowledge of her arrangements. The wife signed the mortgage and loan documentation and she signed an 'acknowledgment by borrower' contained in the Guarantor's Servicing Acknowledgements and the bank had recommended that independent legal and financial advice be obtained.

    The Court held that Ms Tarrant could proceed to trial with a defence under the Contracts Review Act.

    However, in the following case Commonwealth Bank of Australia v Tarrant & Hawkins (No. 2) [2012] NSWSC 302, Davies J found that the wife was bankrupted on 18 October 2011, and because of this she had no legal interest or right to defend the proceedings. That right had passed on the making of a sequestration order to her trustee in bankruptcy.

  • Westpac Banking Co v Chadha [2012] SASC 223 | austlii
    Supreme Court of South Australia: Peek J

    Mr and Mrs Chadha appealed against the orders of a Supreme Court Master granting summary possession of two properties to the bank. The properties were the subject of registered mortgages in favour of the bank as security for a series of loans given jointly as individuals and to their family company. The appeal argument was based on the decision of the Court in Perpetual Trustee Co Ltd v Khoshaba which related to whether there was a ‘public interest’ under the Contracts Review Act 1980 to find ‘pure asset lending’ unfair. The Court distinguished this case on the basis that it applies statutory provisions only available in NSW and distinguished the facts of this case.

    Peek J

    “The appellants here submit that Khoshaba established that there is a “public interest” in setting aside contracts which are directed at “pure asset lending”. However, in my view this case does little to assist the appellants for several reasons. First, Khoshaba involved a finding that the contract was “unjust” under the Contracts Review Act 1980, which has no South Australian equivalent. The appellants wish to ignore the fact that the law in New South Wales is quite different to that in South Australia but this cannot be done. Their case must be assessed by reference to general legal and equitable principles and not by decisions on interstate legislation. Indeed, in Khoshaba, Basten JA referred to the severe disadvantages suffered by the respondents in that case (including limited education and business experience) and specifically acknowledged that “[t]hese circumstances would probably not have justified a finding that the borrowers were under a special disadvantage or disability, for the purposes of equitable principles of unconscionable dealing”. Further, the court in Khoshaba made it plain that even under the New South Wales regime, “something more” than just the characterisation of “pure asset lending” is required to make such conduct of a bank unjust or unconscionable. Of course, the facts of the present case are certainly distinguishable in that here each of the loan agreements clearly stated the intended purpose of the loans, thus demonstrating that the bank did make inquiries into these matters. It was the lack of inquiry that was thought critical in Khoshaba” (at [41-46]).

  • NAB v Smith [2014] NSWSC 1605 | austlii
    Supreme Court of New South Wales: Slattery J

    A husband and wife guaranteed a company’s loan obligations under various interrelated facilities. They mortgaged their family home to secure their guarantee obligations to the bank. The company defaulted on the loan. The bank called on the spouse’s guarantees and they sold their property and applied their equity in it to reduce the company’s liability to the bank. The bank then commenced proceedings to claim the rest of the company’s indebtedness. The husband and wife cross-claimed for relief on the grounds that their guarantees: were unjust under the Contract Review Act 1980 and were occasioned by misleading and deceptive or unconscionable conduct within the Australian Securities and Investment Commission Act 2001 (Cth) and the Fair Trading Act 1981. The Court had regard to the bank’s failure to follow the Banking Code it had adopted despite the couple signing standard releases. There was no adequate explanation provided and the bank did not do adequate due diligence as to whether the loans were able to be serviced by the company. The Court found that elements of statutory unconsionability and common law unconscionable conduct were fulfilled and relief granted. Other relief was provided under the Contact Review Act.

    Slattery J

    “I do not find labels such as "asset lending" particularly helpful in analysing whether Contracts Review Act relief should be granted in a case such as this. But what is clear in my view from the Court's detailed findings in the earlier factual narrative is that the Bank had reason to know Craig and Denise had not received financial advice. The financial advice certificates that the Bank received were too uncertain a basis to infer such advice had been given. Moreover the Bank knew that due diligence had not been done on the vendor's financial statements because the Bank had neither asked for, nor been given, material which would show that such due diligence had been done. Added to that the multiple departures from prudent banking practice on the Bank's side had the capacity to increase the riskiness of this transaction for Craig and Denise, warranting a finding of unjustness enabling the Court's intervention. The appropriate intervention in my view is that Craig and Denise's guarantees and mortgages over the Oyster Bay property be declared void. Contracts Review Act intervention is also warranted because of the conduct of GHS Financial in allowing signatures on the LT Services certificates to be forged and then for the certificates to be forwarded by facsimile to the Bank. This must have been the result of structural problems in the Bank's relationship with this mortgage broker” (at [352-354]).

Recognising STD (or not) within family companies

In 1988, in Metal Manufacturers v Lewis, the NSW Court of Appeal upheld a decision to allow a non-participating director to escape personal liability for incurring a company debt when the company was insolvent as she had not provided authority or consent - recognising STD within family companies. She was found to have been appointed as a director largely to comply with requirements of company law and had accepted the position as a consequence of the spousal relationship. However, Kirby P’s decision (in dissent) in that case – arguing for a ‘sameness’ approach to directors’ responsibilities because they make a choice to participate - proved more influential and has been followed in the reasoning of subsequent cases. Typically, the cases mapped concerned director liability for the company trading while insolvent which is strictly regulated, first by provisions of the state Companies Codes, and now by the Corporations Act 2001 (Cth). Director defences based on the effects of her spousal relationship under company law provisions are rarely successful, except in Southern Cross Interiors Pty Ltd v Deputy Commissioner of Taxation (in 2001 which applied Yerkey v Jones principles) that was subsequently overturned.

As a result of several reports which considered STD in family companies and cited feminist commentary, there was a deliberate legislative change to remove the requirement for two directors in 1995. Successive revisions of legislation governing companies have codified the common law approach imposing stricter liability on directors, with the expectation of all directors undertaking “core, irreducible duties.” As the onus rests on the director to show that there is an available defence even for inactivity, Australian company law appears to currently provide few opportunities for legal redress for effects of STD. There have consequently been very few cases which raise arguments based on relationship pressures or gendered difference since the mid 90’s.

  • Metal Manufacturers v Lewis (1988) 13 NSWLR 315
    Supreme Court of New South Wales Court of Appeal: Kirby P (dissenting), Mahoney, McHugh JJA

    Both husband and wife were directors of a metal company. The wife defended an action for recovery of a debt alleged to be owed by the company to the appellant. She did so upon the basis of the defences provided by s 556(2) of the Companies (New South Wales) Code which creates an offence by a director for insolvent trading of her company. The defences include when the debt is incurred without the director’s express or implied authority or that the director did not have reasonable cause to expect that the company could not pay its debts. This case raised questions in relation to the liability of directors for contracts made by a managing director of a company. The husband, as director, did not contest liability and consented to judgment. The proceedings continued against the wife. The trial judge gave judgment for the wife.

    The creditor appealed against that judgment. However, the Court of Appeal dismissed the appeal and held the husband incurred the debt on behalf of the company in his capacity as managing director. The wife had no power to prevent him from exercising his authority to contract the debt. She knew nothing about it. Accordingly, she proved that she neither authorised nor consented to the incurring of the debt satisfying the statutory defence in s 556(2).

    (The state Companies Codes are now replaced by the Commonwealth Corporations Act 2001 and continue to impose direct responsibility on directors for insolvent trading and narrow defences.)

    Kirby P (in dissent)

    "The fact that the managing director arrogated authority to himself is, as it seems to me, irrelevant to the question whether the respondent expressly or by implication authorised or consented to the company's activities being inducted through him. Clearly she did. Equally clearly, she must have known (or must be taken by the statute to have known) that opting out of concern in the company's affairs would mean, in effect, that the company, as a continuing trading entity, would have to incur debts which would thereupon be incurred by her husband, as managing director, on behalf of the company and with her implicit acquiescence, authority and consent. No other inference is available from the course which she adopted, being a director with the responsibilities which the Code imposes upon her, being sufficiently concerned about the company's liquidity to ask about it, and being prepared to be brushed off by the generalities of her husband, the managing director.

    It might be said that, given the true nature of the relationship between the respondent and her husband, her reaction was entirely understandable. Perhaps it was. But it was not a reaction which the Code permitted her to take. And if the consequence is that a creditor can attack assets which have been acquired or placed in her name, the answer comes back that this is so because Parliament has so provided. People should not become (relevantly) directors of companies, if they wish to avoid exposing themselves and their assets to the liabilities now imposed by s 556. If they are directors, they should exercise the reasonable care and diligence which the Code now requires of them. They cannot surround themselves with a shield of immunity from the operation of s 556, by the simple expedient of washing their hands of the company's affairs and leaving it to a co-director to attend to those affairs and to incur the debts with third parties which it is the very purpose of s 556 to control" (at 321).

    Feminist commentary

    Positive assessments

    “Unlike many other judges, Hodgson J was willing to include in his judgement evidence about Mrs Lewis’ subordinate and dependent position in the family and business and to recognise, to some degree, the domination and control her husband exerted over her. However, the case raises difficult issues about imposing general standards of involvement upon directors. Mrs Lewis had effectively been excluded from being involved in the affairs of the corporation by the rebukes and silence of her husband. She had been denied access to the most basic information about her role and responsibilities and had been limited in every way in having input into the business. Yet the circumstances of her exclusion are similar to those faced by many women in family owned businesses. Gendered ideas about women’s roles as passive carers in the home can collide with gendered notions about assertive behaviour in the market place. In this case for example ‘it was practically impossible for [Mrs Lewis], within her family structure, even to ascertain much less fulfil her duties as a company director’” (Hall 1998, p.53).

    “…at times the Australian courts have been inclined to interpret the defences liberally to enable such persons to escape liability [citing Metal Manufacturers Ltd v Lewis]. These courts have been sympathetic to the plight of these non-executive directors because they have viewed their only crime as being to leave the affairs of the company to the dominant director, often their spouse, whom they believed they could trust” (Cassidy2002, 343).

  • Statewide Tobacco Services Ltd v Morley (1990) 8 ASCR 463
    Victorian Supreme Court: Ormiston J

    A widow, Mrs Morley, had been a director and shareholder of a family company since 1959. After her husband's death, her son ran the family business with her consent, although he was never appointed to the position of managing director. Mrs Morley took no active part in the management of the company, apart from signing company documents and returns, and made no attempt to look at or ask to see any of the company's invoices, statements or books or to seek further information at any relevant time. She saw the last annual accounts but they gave her no indication of future problems. The company went into liquidation. A creditor of the company sued Mrs Morley for debts incurred by the company when it was insolvent. Ormiston J held that Mrs Morley was personally liable because she was taken to have consented or authorised the debt due to her position, and there was no defence available to her because it was not “reasonable” for a director to “hide behind ignorance of the company’s affairs which … has been contributed to by his own failure to make further necessary inquiries”.

    Ormiston J

    “Here the defendant took no interest in the day to day affairs of the company, attended no regular directors’ meetings and sought no financial or other information from her son to whom she had delegated managerial responsibility. It may readily be believed that she trusted her son to manage the company competently. I also accept that she knew nothing of the responsibilities as a director and that nobody had informed her that they involved her doing more than signing a few documents from time to time upon the say so of her son, or possibly of the company's accountants. Those matters, unfortunately for her, do not excuse her failure to perform those duties. It may be that the company was set up for tax purposes, as appeared at one stage in the evidence, but if people choose to use a corporate vehicle to carry on their business activities, then they must accept the consequential responsibilities imposed by law” (at p. 432).

    Feminist commentary

    Negative assessment

    “… the case is important in demonstrating the difficult issues of ‘benefit’ and ‘choice’ that arise in this context. … The Morley case illustrates three important points which are equally relevant to other cases involving women and family business. First, while Mrs Morley’s non-participation suggested her conformance with ‘a socially and legally endorsed stereotype of passivity, dependence, and derivative participation in commercial activity’, legal and commercial expectations of her were clearly far less accepting of this model, to her cost. Secondly, the case illustrates a judicial tendency to equate formal power with real power. … This view works in the interests of creditors, but fails to explore the reasons for Mrs Morley’s apparent reliance on her husband and then her son in business matters. Instead, the implication is that Mrs Morley chose not to exercise her power… . Thirdly, while never fully articulated, there is the undercurrent in the case that, because Mrs Morely had not merely been idle but had benefited directly from the business, the imposition of liability on her was more acceptable – a view which fails to acknowledge the qualified and contingent nature of her benefit. … The perspective is very much that of an empowered, informed, commercially-minded outsider, with Mrs Morley being judged by that standard.” (Fehlberg 1997, 35-2).

  • Hosken, Robert William and Hosken, Heather v Australian Securities Commission [1999] TASSC 27 | austlii
    Supreme Court of Tasmania: Slicer J

    A husband and wife were the co-directors of a company which operated a hotel. The applicants were convicted of 372 offences, contrary to the Companies (Tasmania) Code s 556(1) which attributes personal director responsivity for company trading while insolvent. The husband was convicted of the charges and a fine of $150,000 was imposed. Convictions were recorded against the wife and she was fined the sum of $10,000. Both appealed their respective penalties. The wife on appeal argued the fine of $10,000 was manifestly excessive. She submitted that the magistrate paid insufficient regard to her lack of personal gain. On appeal the Court held “[a] wife who is a co-director of a family company is well able and expected to monitor the affairs of that company. She is as qualified to discern irregularity as any other non-professional or lay person. The penalty ought not be reduced because of her status as a woman or a wife. The motion to review the penalty imposed on Heather Hosken ought be dismissed”.

  • Group Four Industries Pty Ltd v Brosnan | (1992) 59 SASR 22; (1992) 8 ASCR 463
    South Australian Supreme Court Full Court: Matheson, Olsson and Debelle JJ

    Mr and Mrs Brosnan were the only shareholders and directors of a company which carried on a business of selling air-conditioning equipment. From its incorporation, the company was indebted to GFI (the plaintiff), a supplier of air-conditioning equipment. In 1987, a liquidator was appointed to the company and GFI was owed money. GFI sought to recover the unpaid debt of the company from its directors under s 556 of the Companies Code. Judgment was entered against Mr B, but Mrs B was able to establish a defence under s 556(2). GFI appealed in relation to Mrs B. Mr B was responsible for the everyday running of the business and was aware of the precise financial situation of the company. By comparison, Mrs B knew very little about the financial aspects of the business. She assisted Mr B in relation to the business from time to time, but her role was restricted to answering the telephone and accepting deliveries when made to their residence and occasionally doing the banking. Mrs B did not have any involvement with the creditors or debtors of the business. However, over a course of years, Mrs B had (with Mr B) signed a number of directors’ statements relevant to the accounts of the company. The Full Court held that Mrs Bronsan could not establish a defence under the Code.

    Matheson J

    “As I understand it, Mrs Brosnan was living with her husband at all relevant times. He was managing the business. She and her husband were the only directors. She and her husband were the only employees. I am prepared to infer that as a director Mrs Brosnan impliedly authorised him to incur debts on behalf of the company in the course of buying and selling airconditioners, but I think the inference that Mrs Brosnan impliedly consented to her husband incurring the debts is irresistible. … As his Honour found, when considering the case against Mr Brosnan, the financial structure of the business was ‘uncomplicated’, and Mrs Brosnan ‘could have quite easily and quickly ascertained the precise financial situation of the company’” (at 483).

    Feminist commentary

    Neutral assessment

    “The role of the passive director has received considerable attention by the judiciary in the last few years. Of greatest importance have been the cases dealing with insolvent trading [citing Group Four v Brosnan]… Overwhelmingly, the judges held that women should have full liability as directors. … The 588G cases are important on one level because they raise the dilemma of whether women directors should be treated the same as males or that their special situation requires special treatment. However, these cases also demonstrate the difficulty faced by the courts in adjudicating the competing claims of families and creditors to corporate assets. The family’s role as repository of corporate assets should not be underestimated, because the family plays a significant role in immunising assets from creditors” (Spender 1995, 203-4).

  • Corporate Law Reform Act 1992 (Cth)

    This Act enacted major reformin relation to corporate insolvency. These reforms were instigated by a number of corporate collapses in the 1980s from which creditors called for better protections from inactive or negligent directors. The reforms were based on recommendations by the Australian Law Reform Commission in two documents: the Australian Law Reform Commission Discussion Paper No 32, General Insolvency Inquiry, 1987, (the ‘Harmer Discussion Paper’); and the Australian Law Reform Commission Report No 45, General Insolvency Inquiry, 1988 (the ‘Harmer Report’). These reports made a range of recommendations, subsequently enacted, about priorities of the Australian Taxation Office in insolvency. The Act tightened the exclusion of liability when a director had no reasonable grounds to expect insolvency of a director for reasons of ‘illness or other good reason’ (s556 Companies Code 1981). Rather it reversed the onus so that the director pleading a defence must show that there is a ‘good reason’ why the director is not participating. While the cases illustrate that it was difficult to convince a court about factors of STD among spousal directors, this legislative change further impacted on passive directors of family companies.

    The current federal Act governing corporations is the Corporations Act 2001.

  • Story v Advance Bank Australia Ltd and Another (1993) 31 NSWLR 722
    Court of Appeal New South Wales: Gleeson CJ, Mahoney, Cripps JJA

    The bank took a mortgage over property owned by a company, the directors and shareholders of which were husband and wife: the mortgage, which was apparently regular on its face, was in fact a forgery. The forgery was a false signature to the attestation of the common seal of the director/wife affixed by the director/husband without his wife’s knowledge. There was a contest at the trial as to the context of the forged signature, and the evidence showed that this was something he had done on previous occasions. However, at trial and in the Court of Appeal the bank succeeded on the findings that: It did not have actual or constructive knowledge of the forged signature, and the mere fact of defective execution of a mortgage document alone does not give rise to a personal equity to have the mortgage set aside. The loan benefited the company in which she was a director and shareholder. The Court of Appeal also found that s 68A of the Companies Code allowed the bank to assume approval as a result of her connection with the company – the ‘indoor management rule’.

    Feminist commentary

    Negative assessment

    “In the view of the writer, the outcome of that case is critically dependent upon the assumption of domestic harmony — that the interests of Mrs Story and the family were the same as those of Mr Story and the corporation. The creditor can therefore satisfy its claim out of family property which devalues Mrs Story's claim under s 79 of the [Family Law Act]. The parallel assumption of the “need for commercial certainty” is demonstrated by the response of the commercial community to Story and the subsequent decision of BNZ v Fiberi. Story was welcomed in the commercial community, with Professor Baxt declaring that “commerce can now move more swiftly, certain in the knowledge that minor irregularities will not spoil the day”.” (Spender 1997, p)

  • Bank of New Zealand v Fiberi Pty Ltd (1994) 12 ACLC 48
    New South Wales Court of Appeal: Kirby P, Priestley and Clarke JJA

    Fiberi Pty Ltd was a shelf company for the purpose of buying and holding property at Palm Beach. The directors were a de facto couple (subsequently married) and the property was their family home. Mr Doyle was the controller of a group of companies which was experiencing financial difficulties and the bank required guarantees from Fiberi Pty Ltd to secure Mr Doyle’s companies’ debts. His wife was not aware of this transaction. When Mr Doyle’s companies defaulted, the bank sought possession of the family home on which a mortgage had been placed securing Fiberi’s guarantee. The bank argued the operation of the ‘indoor management rule’ which allows an assumption that those representing the company have appropriate authority to act for the company. However, the bank dealt with Mr Doyle and his son, who was not a company director. The trial judge found, and this was upheld on appeal, that the bank was not entitled to rely on this legislative rule because the son was not held out as a director and the facts were such that it was not reasonable to rely on the documents provided. Therefore the guarantees were not able to be enforced.

    Feminist commentary

    Neutral assessment

    The creditor win in Story v Advance Bank “was welcomed in the commercial community… . However, in 1994, a differently constituted Court of Appeal came to a different conclusion on similar facts [in BNZ v Fiberi]. … After the decision in Story which had been ‘comforting to the commercial community’, it was lamented that ‘business certainty has again become a question of doubt… .’ Thus the concept of business certainty is a powerful catchcry which will in many circumstances defeat any corresponding argument about domestic certainty” (Spender 1997, 202).

  • First Corporate Law Simplification Act 1995 (Cth)

    This Act instituted a range of changes in regulatory burdens imposed on small companies, including the requirement that there be two directors and shareholders. In the Second Reading Speech, the then Attorney-General, Michael Lavarch, referred to a number of considerations in drafting the Bill which relate to either the enormous increase in women forming companies since the late 1980s or the effects of STD in relation to family companies (as cited by Spigleman CJ in Deputy Commissioner of Taxation v Clark [2003] NSWCA 91 at [154]):

    "I should highlight the importance of the provisions in the bill which will enable sole traders to incorporate without the need to involve a second shareholder or director in the business. This amendment will alleviate a number of problems which have a particular impact on women who are involved in business. Reports over recent years suggest that women are heavily involved in small business and, in fact, are setting up their own businesses at a much faster rate than men. The current requirement for a minimum of two directors and shareholders for a company has presented significant practical difficulties for many women.

    First, businesswomen may find it difficult to find another person willing to act as a director of their companies. They may be unwilling to have their husbands or partners as directors or shareholders out of a desire to retain a degree of independence within the family unit.

    Secondly, the minimum number requirement often leads to women becoming directors of companies controlled by their spouse in which they do not play any meaningful role. This can expose these women to the legal liabilities of a company director, without them having any influence over the operation of the company. As recent cases have shown, people acting as directors without being involved in the company's affairs can be responsible for the company's debts upon insolvency. The outcome is similar to the problem which results from `sexually transmitted debt' when a person acts as guarantor for the debts of their spouse. The bill will address these problems, and help women to establish themselves in business on their own terms."

  • Metropolitan Fire Systems Pty ltd v Miller & Others (1997) 23 ASCR 699
    Federal Court of Australia: Einfeld J

    Mr and Mrs Miller and Mr Ewins were directors of a company (Raydar). The applicant company (Metropolitan) sought a declaration that the directors of Raydar breached the Corporations Law by allowing Raydar to trade while insolvent and incur debts to Metropolitan. A defence of reasonable grounds to believe the company was solvent was raised by two of the directors on the basis that they relied on Mr Miller with respect to running the company’s affairs. However, the court found that the circumstances were not sufficient for this belief and simply relying on the husband was not enough to discharge the assumption of activity by a director. The declaration sought by the creditor was made and compensation awarded.

    Einfeld J

    “Patricia Miller, as well as being a director, was employed by the company as a full time casual clerk performing banking, some invoicing and general banking duties from home. She typed the invoices but claimed that she did not take in the details. Mrs Miller also sometimes made phone calls regarding debt collection, but she claimed not to be aware of the details of these debts or the difficulties being experienced in recovering them. She claimed to be unaware of the dispute with Turks or the company's liability to the Tax Office, although she was aware of the mortgages granted over the family home and the factory unit. Mrs Miller also admitted that she was aware that the company was reducing its staff although this apparently caused her no concern. More importantly, there is no evidence of her inquiring of her husband, the director of the company on whom she relied for information about the company, as to the state of the company's finances. … She may have believed that her husband would inform her if the company was in trouble but as a director she had a duty to take an interest in and demand information on the financial state of the company, especially as she undoubtedly knew that it was at best ‘in trouble.’ As a working director, she had a duty to observe and draw reasonable and obvious conclusions from facts coming to her attention. I accept that Mrs Miller lacked detailed knowledge of the financial situation of Raydar, but I cannot find that there were and that she had reasonable grounds to believe that Mr Miller was fulfilling the responsibility of providing adequate information to his co-director. I therefore reject her defence raised under s 588H(3)” (at p. 712).

  • Corporations Act 2001 (Cth) | austlii

    This current Act imposes broad requirements of care, skill and diligence on directors in exercising their duties as had been imposed in cases decided prior to its enactment. Section 180 of the Act imposes a mixed objective and subjective standard of care and diligence, measuring conduct against that of a ‘reasonable person.’ A failure to act or have knowledge about the company will not be a ‘reasonable’ excuse for a failure to recognise a breach of the Act by the company (like insolvent trading). The Act imposes personal responsibility on directors for the company trading while insolvent. Section 588H provides specific defences for director liability for insolvent trading such as if the director had reasonable grounds to suspect that the company was solvent when it was not, or if the director did not take part in management for reason of illness or some other ‘good reason.’

    As in decisions about previous provisions, courts have tended to read these defences narrowly. The assumption of activity of directors underlying many provisions has consequences for passive directors of family companies who have accepted this role for reasons of influence, trust or dependency, and do not or cannot participate in its running. The expectation is that these directors have made a choice to adopt the role and must provide strong evidence of a relevant defence to avoid personal liability in most cases.

  • Southern Cross Interiors Pty Ltd and Anor v Deputy Commissioner of Taxation and Ors [2001] NSWSC 621 | austlii   view appeal
    Supreme Court of NSW: Palmer J

    The husband and wife were directors of a company. The company was wound up and the company's liquidator obtained an order against the Deputy Commissioner of Taxation. The payments were held to be an unfair preference. The husband was ordered to indemnify the appellant for the amount, but the wife succeeded in establishing the defence pursuant to s 588FGB(5) of the Corporations Act 2001 (Cth). The Deputy Commissioner appealed against the judgment given by the trial judge in favour of the wife. The issue before the Court was whether the wife had good reason not to take part in the management of the company at the times of the payments. At no time during the period in which the wife was a director did she participate in the management of the company in any degree at all. She was not ill at any relevant time. Accordingly, the sole issue in the defence is whether she did not participate in management “for some good reason” pursuant to s 588FGB(5) of the Corporations Act 2001 (Cth).

    The wife’s evidence was that she had been carrying out home duties full time since the birth of the first of her three children in 1992. She had had no business experience and had never been a company director before being appointed as a director. The Court held the wife had established a good reason for not participating in the management of the company at any relevant time, so that her defence under s 588FGB(5) succeeded. She accepted the appointment as a director with no understanding at all of the duties and responsibilities which that office entailed. That lack of understanding was not due to any fault on her part. Her husband failed to explain to her anything of the responsibilities which directorship involved and did not suggest that she seek advice or further information.

    Palmer J

    “The law recognises that the relationship of trust and confidence between married people may lead one of them to undertake responsibilities or liabilities which would not have been undertaken but for the relationship. That reality of human experience, when it produces financial liability for the unsuspecting or incautious spouse, has recently acquired the provocative tag of “sexually transmitted debt”. … Academic writers have drawn attention to the problems of women who incur liabilities as sureties or as ‘silent directors’ of family companies because of: ‘… the tendency of women … to defer to and trust in male authority and expertise, in matters of the ‘public’ sphere, including business, commerce and legal transactions’” (at [129 and 132]).

    "In my opinion, any reason which the law holds sufficient, according to accepted legal principle, to excuse a person from the legal consequences of his or her acts or omissions is a "good reason" for the purposes of a defence under [Corporations Act] s.588H(4) and s.588FGB(5). [127] Within the category of circumstances constituting "good reason" for non-participation in a company's management I would include those circumstances which underlie the reasons of Dixon J. in Yerkey v. Jones, as affirmed and explained in Garcia v. National Australia Bank Ltd … " (at [126-7]).

    "In my view, the law should recognise that a wife's failure to appreciate the reality of her responsibilities as a director due to deferral to her husband in the circumstances referred to in Garcia and in para.13.4 of the ALRC [Equality Before the Law] Report may be a "good reason" for failing to participate in management for the purposes of a defence under s.588H(4) and s.588FGB(5). Such recognition will not undermine the policy of the law that those who accept office as a director are expected to act with competence and diligence in discharging the duties of their office. Whether the wife has truly failed to appreciate her responsibilities and whether such failure has anything to do with trust and confidence in the marital relationship are questions of fact in each case. So, for example, if a woman already has some knowledge and experience of business and of the responsibilities of a company director before she accepts a directorship at her husband's request, it will be very difficult indeed for her to convince the Court that she had a "good reason" for not participating in management simply because she left business matters to her husband. In those circumstances, she would be expected to know that her duties as a director overrode the exigencies of the marital relationship. On the other hand, if a woman, inexperienced in business and completely unaware of the responsibilities of company directorship, is told by her husband, whom she trusts and believes to be honest and to be knowledgeable in such matters, that some formality requires her to be appointed as a director to a family company and that management of the company may be left entirely to him, then, in my view, she has a "good reason" for not participating in management for such time as she genuinely remains in ignorance of her duties" (at [134-5]).

    Feminist scholarship cited by Palmer J:

    • ALRC 1994;
    • Fehlberg 1997A;
    • Bailey 1999;
    • Kaye 1997;
    • Howell 1995;
    • Fehlberg 1997

    Feminist commentary

    Positive assessment

    “…at times the Australian courts have been inclined to interpret the defences liberally to enable such persons to escape liability. These courts have been sympathetic to the plight of these non-executive directors because they have viewed their only crime as being to leave the affairs of the company to the dominant director, often their spouse, whom they believed they could trust” [citing Southern Cross Interiors] (Cassidy 2002, 343).

  • Deputy Commissioner of Taxation v Clark [2003] NSWCA 91 | austlii   view trial
    Court of Appeal New South Wales: Spigelman CJ, Handley, Hodgson JJA

    The Deputy Commissioner of Taxation appealed Palmer J’s decision. The Court of Appeal found that one aspect of directors' duty of care and diligence is a core, irreducible requirement of participation in the management of the company. Such a requirement is one of the factors underlying the scheme for insolvent trading of which the defences in s 588FGB Corporations Act 2001 is a part. A total failure to participate, for whatever reason, should not be regarded as a ‘good reason’ within s 588FGB(5). The express reference to ‘illness’ in s 588FGB(5) does not assist the applicant on the facts. It is not appropriate to interpret the general words of the Act so broadly as to invoke other areas of the law in which a person may be excused from the legal consequences of his or her acts (ie equitable doctrines such as the Yerkey principle in undue influence). The appeal was upheld and personal liability was attributed to the wife.

    Spigelman CJ

    “Mrs Clark has never been a director of any other company. Nor did she have any business experience. Her time was taken up as a housewife and mother. She said that when requested to become a director, she thought she had to accept as a wife. She agreed that, from time to time, she signed company documents, but that they were not explained to her and signature occurred in situations in which: ‘I would usually have a frying pan in one hand and be signing with the other’” (at [10] ).

    However, in finding that no defence applied under the Act, his Honour referred to a “core, irreducible requirement of involvement [by directors] in the management of the company” (at [108]). His Honour continued:

    “The preparatory materials for the First Corporate Law Simplification Act and the Attorney's Second Reading Speech both drew on the concept of `sexually transmitted debt' by way of an analogy. Palmer J in his judgment in the present proceedings refers to some of the literature on this matter. There is often an acute dilemma when deciding whether the principled application of the law requires formal equality or gender neutral treatment, on the one hand, or recognition that the position of women in particular relationships requires separate treatment on the other. The issues that arise are as old as Aristotle, who identified injustice as treating equals unequally or treating unequals equally. The difficulty is to identify the circumstances in which persons are relevantly equal or unequal. Some emphasise that gender neutral rules ignore the actual experience of many women who assume subordinate roles in both the public and private spheres. Others emphasise the possibility that permitting women to rely upon stereotypes embodied in special rules as a defence to legal liability will have adverse consequences on the ability of women to participate equally in commercial life. … The contrasting views are also reflected in the literature on the particular defence under consideration in the present case. … The recognition of complete abdication of responsibilities as a director as a "good reason", for purposes of the statutory defences, carries with it the risk of reinforcing gender stereotypes and undermining the confidence with which potential creditors will deal with small companies in which women participate with their husbands. Maintaining a firm position on the duties of directors will encourage the use of single director corporate structures for small business. In my opinion, it is desirable to promote coherence between appearance and reality in corporate practice” (at [160-4]).

    Feminist literature cited by Spigelman CJ (discussing STD)

    • ALRC 1994;
    • Dunn 2000;
    • Dodds-Streeton 1994;
    • Fehlberg 1997.
  • Brown & Anor v Wilen Pty Ltd & Ors [2012] QCAT 324 | austlii
    Queensland Civil and Administrative Tribunal: Peta Stilgoe, Senior Member

    A couple sold their unit through Wilen Pty Ltd trading as Wilson Allen Real Estate. Mr Allen and Ms Wilson were directors of that company. The purchasers of the unit paid a deposit of into the company’s trust account. The sale was settled but the vendors never received the balance of the deposit from Wilen. The vendors made a claim on the statutory claim fund for their money. Wilen was by then under external administration. The Tribunal was required to determine whether there should be a payment from the fund to the vendors under provisions of the Property Agents and Motor Dealers Act 2000 (Qld). The difficulty was that there was no money available in the trust account to pay the balance deposit when the sale settled because it had been misappropriated by Mr Allen. The Tribunal found that Wilen was clearly liable for the loss and that under s 490(2) of the Property Agents and Motor Dealers Act 2000 (Qld) a ‘responsible person’ is personally liable. As directors of Wilen, Mr Allen and Ms Wilson were executive officers of the company and were therefore ‘responsible persons’ under the Act. Ms Wilson filed submissions denying responsibility for the loss on the grounds that: she had no involvement with the day-to-day running of the business; she was not consulted in any management decision; she did not have an office at Wilen; she is not computer literate; she did not deal with the accounts; she has no accounting experience or knowledge; she has never had a board meeting with Mr Allen; she has never received any financial information in relation to the company; she has no understanding of the statutory or other requirements that apply to Wilen; and it was Mr Allen, acting alone, who is responsible for the loss.

    Peta Stilgoe SM

    “Ms Wilson has also detailed her current financial position, her family difficulties and her inability to reimburse the statutory fund if I make the order sought. [19] Being a director of a company carries obligations to manage the company. The Corporations Act 2001[s198A] does not contemplate the role of a silent director who takes no part in the management of the company and thereby avoids obligations to the company and its creditors. This is yet another salutary lesson to ensure that would-be directors of companies understand their obligations fully. It is also another unfortunate example of sexually transmitted debt. It is not enough for a woman to claim that she should not be liable for her failure as a director because she left that obligation to others, including, at some stage throughout the life of Wilen, her husband. While I have some sympathy for Ms Wilson’s position, the fact remains that she was an executive officer of Wilen at the time of the loss and, therefore, a responsible person, and, therefore, a person liable to reimburse the fund” (at [18]-[20]).

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G. Gretton, ‘Sexually Transmitted Debt’ (1999) 3 Journal of South African Law 419

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Sexual harassment

Sexual harassment was recognised as a form of sex discrimination in Australian law in the early 1980s. Courts have generally adopted a liberal interpretation of behaviour which may be classified as sexual harassment, to include unwelcome conduct of a sexual nature and have recognised the relevance of power relations, particularly in the workplace. Decision-making in this area raises important legal principles, notably the ‘reasonableness test’ and the standard of proof, both of which have been subject to sustained feminist critique. This case study maps judicial responses to complaints of sexual harassment across all Australian jurisdictions for the 30 year period 1984 to 2014. Links to cases are provided if they are publicly available. This text is up to date to December 2014.

Sexual harassment (printable version).

Introduction

The introduction of sex discrimination legislation was the product of feminist campaigns for law reform in relation to equal opportunity and discrimination in the workplace. In Australia, complaints of sexual harassment were first pursued under state anti-discrimination legislation, first introduced in South Australia in 1975 (Sex Discrimination Act 1975). However, initially, there were no specific provisions covering sexual harassment and it was necessary to prove that such unwanted sexual behaviour was a form of sex discrimination.

The Sex Discrimination Act 1984 (Cth) (SDA) was the first legislation in the world to introduce a separate cause of action for sexual harassment. Importantly, unlike sex discrimination, there were no exceptions to the prohibition of sexual harassment.  However, the prohibition of sexual harassment applied only in the areas of employment and education and only to situations where the harassment resulted in the complainant fearing that rejection of sexual advances or behavior would lead to a detriment to her employment or education. In situations where the harassment was part of a generally sexualised environment which was hostile to women, it was still necessary to establish that this constituted a form of sex discrimination under the regular sex discrimination provisions.

In 1992, a new definition of sexual harassment was introduced into the SDA which extended to all areas otherwise covered by the legislation. This attempted to encompass both ‘quid pro quo’ (where a complainant fears that rejection of sexual advances or behavior would lead to a detriment to her employment) and ‘hostile environment’ types of sexual harassment (where a workplace is permeated by sexualised behavior which is hostile to women). The legislative provisions concerning sexual harassment were adopted subsequently in all state and territory jurisdictions. In New South Wales, sexual harassment is unlawful under the Anti-Discrimination Act 1977 (NSW) ss 22A-22J; in Victoria, under the Equal Opportunity Act 2010 (Vic) ss 92-102; in South Australia, under the Equal Opportunity Act 1984 (SA) s 87; in Western Australia, under the Equal Opportunity Act 1984 (WA) ss 24-26; in Queensland, under the Anti-Discrimination Act 1991 (Qld) ss 118-120; in Tasmania, under the Anti-Discrimination Act 1998 (Tas) s 17; in the Australian Capital Territory, under the Discrimination Act 1991 (ACT) ss 58-64; and in the Northern Territory, under the Anti-Discrimination Act 1992 (NT) s 22.

Sexual harassment is one of the most common types of complaints made to the Australian Human Rights Commission under the SDA and to state and territory anti-discrimination and equal opportunity agencies. While legislative provisions now cover sexual harassment in a range of contexts, the major area in which complaints of sexual harassment are made is in the context of employment. 

Most complaints of sexual harassment do not result in tribunal or court hearings, but are settled through conciliation. If a complaint proceeds to a hearing, decision makers have sometimes declined to recognise the type of behaviour which may be classified as sexual harassment. However, in some key cases, they have acknowledged the relevance of power relations, particularly in the workplace.

Feminist commentary

“Sexual harassment law has offered Australian women an invaluable means of redress for the harms that they have experienced, and continue to experience, in the public sphere (particularly in the workplace). It has also engendered a plethora of educational and policy campaigns designed to highlight the unacceptable nature of such harassment and, in turn, to reduce its prevalence. Despite these achievements, the current legislative definitions of sexual harassment continue to attract significant critical evaluation (Mason and Chapman 2003, p. 196).

“The impetus to introduce sexual harassment provisions as part of Australian sex discrimination legislation needs to be understood as part of a broader international movement for recognition of the human rights of women. This movement involved a number of distinct influences. In the United States, for instance, discrimination legislation was introduced in the early 1970s. Although the term sexual harassment is said to have come into popular usage in the United States shortly afterwards, it was not until later in the decade that there was a tentative accepatance of some forms of sexual harassment within sex discrimination law. … In tune with these developments in the United States, women’s organisations in Australia, such as the Women’s Electoral Lobby began pressing for legal and social recognition of sex discrimination from the early 1970s. This movement was strongly influenced by Australia’s ratification of two key international conventions. In 1973 Australia ratified the ILO’s Discrimination (Employment and Occupation) Convention (‘ILO Convention 111’) and, later in 1983 it ratified the UN Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (‘CEDAW’). In consequence of ratifying ILO Convention 111, later that year the federal government established a National Committee on Discrimination in Employment and Occupation and six state committees.” (Mason and Chapman 2003, p. 197-8)

“Unlike the 1984 Commonwealth Act, which would include sexual harassment as a separate ground of complaint, this earlier state legislation did not make mention of sexual harassment. Nevertheless, the Commissions and Boards established to administer the state legislation and to investigate and attempt to conciliate complaints, began to use the term sexual harassment before it was defined in legislation” (Mason and Chapman 2003, p. 199).

“The one area of the legislation [Sex Discrimination Act 1984] with which all three decision making bodies have had little difficulty is sexual harassment. HREOC [Human Rights and Equal Opportunity Commission], the FMC [Federal Magistrates Court], and the Federal Court have all made decisions giving full effect to the sexual harassment provisions of the SDA (hence, perhaps, the generally higher success rates enjoyed by complainants under the SDA than those under the DDA and RDA). Arguably, sexual harassment cases present few difficulties because they involve relatively straightforward and broad statutory provisions, with no statutory exceptions. Most cases involve a factual inquiry into what occurred, and while they may involve a contest of credibility, once the facts are ‘found’, the application of the legislative provisions defining sexual harassment to the facts is relatively unproblematic. It is also possible that the kind of egregious behaviour evident in most sexual harassment cases that reach a public hearing elicits little sympathy from decision makers, who can readily understand the humiliation or offence that the behaviour could have caused. Other areas of the legislation have not been so sympathetically applied. (Gaze and Hunter 2010, p. 184).

Pre-SDA Cases

Prior to the introduction of the Sex Discrimination Act 1984 (Cth) (SDA), sex discrimination legislation existed in some Australian states. In a couple of landmark cases in NSW and Victoria, courts found that sexual harassment was a form of sex discrimination under this legislation. These cases provided impetus for the law reform making sexual harassment a specific form of unlawful behaviour.

  • O’Callaghan v Loder and The Commissioner for Main Roads (1983) 3 NSWLR 89
    Equal Opportunity Tribunal, Mathews DCJ, Members Thiering and Swinburne

    This was the first case of sexual harassment brought in Australia. While the Anti-Discrimination Act 1977 (NSW) did not initially make sexual harassment unlawful, in O’Callaghan v Loder and The Commissioner for Main Roads, Matthew DCJ found that sexual harassment was a form of sex discrimination. Canvassing developments in anti-discrimination law in the United States, Canada and England concerning sexual harassment, she found that a ‘broad, liberal approach should be adopted to its interpretation rather than a narrow, technical one’ (p.11).

    Summary

    The two complainants were lift drivers with the Department of Main Roads. They alleged sex discrimination on the basis that they had been sexually harassed by Mr Loder, the Commissioner for Main Roads. The complainant, Ms O'Callaghan, at the invitation of Mr Loder, visited his office on frequent occasions between June and September 1981. She alleged that on one occasion Mr Loder forced her to hold his exposed penis until he ejaculated.

    The Tribunal found that the complainant  had experienced ‘less favourable treatment’ than a man would have in the same or similar circumstances and that this had occurred within the terms and conditions of her employment, meeting the first and second requirements under the legislation. However, it found that although the behaviour was clearly unexpected and unwelcome by the complainant, and had caused her much distress, she did not adequately convey to Mr Loder that his conduct was unwelcome and therefore it did not amount to unlawful sex discrimination.

    The Tribunal outlined a definition of sexual harassment which would constitute sex discrimination under the legislation:

    1. A person is sexually harassed if he or she is subjected to unsolicited and unwelcome conduct (of a sexual nature) by a person who stands in a position of power in relation to him or her.
    2. Sexual harassment by an employer can amount to discrimination on the ground of sex in the following circumstances:
      1. if the conduct is such as to create an unwelcome feature of the employment in a continuing rather than an isolated sense, or to be detrimental, and regardless of whether it leads to a loss of tangible job benefits; or
      2. if the employer secures compliance with his sexual demands by threatening adverse employment consequences; or
      3. if the rejection of the employer's sexual demands leads to retaliation in the form of loss of access to employment opportunities; or
      4. if the rejection of the employer's demands leads to retaliation in the form of loss of tangible employment benefits.
    3. The phrase "terms or conditions of employment" in s 25(2)(a) should be interpreted broadly to cover and include all substantial terms or conditions relating to employment which may be imposed upon an employee during the course of that employment.
    4. The word "detriment" in s 25(2)(c) requires that a complainant has been placed under a substantial disadvantage in comparison with other employees of the opposite sex.
    5. In the context of sexual harassment conduct creating an unwelcome feature of the employment and therefore coming within s 25(2)(a) would also lead to a detriment under s 25(2)(c).

    Per Matthews DCJ:

    “The above definition is obtained from a reading of the relevant literature and case law on the subject. Issues relating to the extent to which sexual harassment is proscribed by anti-discrimination laws have arisen on a number of occasions over recent years in both the United States and Canada.” (p.5)

    “… sexual harassment can consist only of unsolicited and unwanted sexual advances. That being the case, I have no difficulty in finding that such treatment amounts to less favourable treatment within the meaning of the Anti-Discrimination Act, s 24(1).” (p.8)

    “I adopt as a starting point that a person is sexually harassed if he or she is subjected to unsolicited and unwelcome sexual conduct by a person who stands in a position of power in relation to him or her.”

    Feminist commentary

    Negative

    “Such a case may be a legal ‘success’ in establishing doctrine, but a practical failure because the complainant receives no remedy if proof cannot be made. Assessment of legal doctrine alone is not sufficient to make a judgment about whether a law is successful in achieving its aims.” (Gaze 2005B)

    “In this case the heterosexed nature of organisational power, or what Catharine MacKinnon has referred to aphoristically as 'dominance eroticised', was clearly in evidence. The male respondent, the Commissioner of Main Roads, was the most senior person in the organisation, while the female complainant, a lift driver, was one of the lowliest. The Commissioner was in the habit of inviting the complainant into his office with the explicit intention of soliciting sexual favours. Despite Mathews J's initial courage in acknowledging the discriminatory harm of sexual harassment, Her Honour faltered in applying her test to the crucial element of power. The harassing conduct was found not to amount to unlawful sex discrimination because the complainant had failed to make known to the respondent that his attentions were unwelcome. The implications of 'power over' were thereby undermined. Was the complainant to slap the Commissioner's face and tell him to 'get lost'?  She knew perfectly well that any intimation of rejection could have resulted in job-related repercussions, as she indicated at the hearing. Despite the unsuccessful outcome for the complainant, this was a trailblazing decision that laid the groundwork for new ways of thinking about gendered harms in the workplace. Indeed, it led to the express proscription of sexual harassment within anti-discrimination legislation.” (Thornton 2002, pp.428-429)

    “The problem with O'Callaghan v. Loder is that it began with a theoretical definition of sexual harassment drawn from the literature, rather than proceeding from the facts in the complaint. This seems to be an impermissible, non-adversarial mode of reasoning.” (Hunter 1991, pp.324-325)

    “On this analysis, it seems clear that for the tribunal the really pivotal legal question is that the sexual conduct should be unwelcome and unsolicited, and that the employer should know or be in a position where he ought to know that his conduct was unwelcome. In an analysis of considerable subtlety, the tribunal stated firmly that sexual harassment in itself, without threats to the job security of the victim, can be discriminatory conduct; but this aspect of the analysis is limited in its potential impact on the practice of sexual harassment because of the insistence on the employer’s subjective knowledge of the victim’s distress.” (Mills 1984, p.6)

    “Why should it be necessary to prove that a sexual advance was unsolicited and unwelcome and that the employer knew it was unwelcome? In other instances of unlawful sex discrimination not involving sexual harassment, tribunals have held that there is no need to prove that the respondent actually intended to treat a woman less favourably than a man on account of her sex.” (Mills 1984, p.6)

    “… it must be possible for sexual harassment to be unlawful where the employer thinks he is paying his employee an enormous compliment by favouring her with his sexual attentions. Add to this basic quality of male sexual egotism the disparity in power in the employment relationship, and it is probable that many a man in the position of a Commissioner of Main Roads actually thinks, because he cannot conceive otherwise, that his attentions are a bonus, a “chance” for the woman involved.” (Mills 1984, p.6)

    Positive

    “Despite O'Callaghan's ultimate failure, the tribunal decision was hailed as a landmark. In this first Australian attempt at a legal definition, sexual harassment was found to be a form of direct discrimination as it amounted to less favourable treatment of a person on the ground of their sex, when compared to a person of the opposite sex, in similar circumstances. Justice Mathews, in ascribing the widest possible meaning to the phrase, defined sexual harassment as occurring where a person is 'subjected to unsolicited and unwelcome sexual conduct by a person who stands in a position of power in relation to him or her.' In order to come within the legislative proscription of direct discrimination on the ground of sex, the sexual harassment must have either constituted an 'unwelcome feature of the employment', or must have been accompanied by (tangible) adverse employment consequences to the complainant, such as dismissal or reduction in hours worked. According to Mathews J, a single act of sexual harassment can potentially constitute unlawful sex discrimination. Importantly, if the single act was followed by retaliation involving tangible employment detriment to the employee, this would be within the direct discrimination provisions. Alternatively, where a single incident so tainted the working environment as to 'create an unwelcome feature of the employment in a continuing rather than an isolated sense', this would also constitute unlawful sex discrimination.

    The most controversial requirement imposed by the tribunal was the finding that the sexual harassment must occur in circumstances where 'the employer knew or ought to have known that the conduct was unwelcome'. In other words, the employer 'must either know that his conduct is unwelcome, or the circumstances must be such that he should know it'. This placed an onus on the employee to make the unwelcomeness known to her employer. It was on this point that O'Callaghan failed, despite the tribunal's acknowledgement that the larger the disparity in status and power between the employer and employee, the greater the obligation on the part of the employer to observe any unwillingness on the employee's part. Although the tribunal had drawn an adverse inference against Loder, in consequence of his blanket denial that any sexual activity had taken place, it was not prepared to extend this adverse finding further to infer that Loder knew his conduct was unwelcome.” (Mason and Chapman 2003, p.203)

    “Early critics of the decision found tangential support for their critiques in the annual report of the NSW Anti-Discrimination Board published the year after the judgment in O'Callaghan was handed down. For the first time since sexual harassment had been recognised by the Board, there was a marked decline in the numbers of complaints. The President cited the failure of the complaint brought by O'Callaghan and the accompanying publicity that enveloped the case as reasons for this decrease. Conversely, the decision also attracted praise as a well-argued and courageous judgment in extremely difficult circumstances by Mathews J, who was the only woman Judge within the NSW court system at the time. Of particular import for the present discussion was the influence that the case brought to bear on the drafting of the Commonwealth SDA.” (Mason and Chapman 2003, pp.205-206)

    Neutral

    “It has been widely acknowledged that work-related power imbalance is often a significant contributing factor in facilitating, and perhaps motivating, work-related sexual harassment. Indeed, the first Australian decision to recognise sexual harassment as being unlawful emphasised the significance of abuse of a position of power as a hallmark of sexual harassment.” (Hely 2008, p.201)

  • R v Equal Opportunity Board; Ex parte Burns (1985) VR 317 | austlii
    Supreme Court of Victoria, Nathan J

    Summary

    The complainant, an apprentice motor mechanic, was sexually harassed by other employees with Burns Corporation Pty Ltd. She claimed there had been regular sexual harassment leading up to an incident when a respondent, Mr Hayat, “bit me on the neck” and “held me while Jeff Priest fingered me and when Robert Hayat fingered me twice other times during the day.” The case required the Victorian Supreme Court to make a judgment on an order to prohibit the Victorian Equal Opportunity Board from further hearing two complaints about sexual harassment lodged on behalf of the complainant.

    The Court held that detriment to one employee usually confers a benefit upon another. It followed that sexually harassing behaviour diminishes the enjoyment of life in the work place. Nathan J said “I do not purport to adjudicate upon the facts in this case. In this instance, I have found that if the substance of the complaints were made out, a breach of the Equal Opportunity Act 1977 could be found. Behaviour of the type complained of, if it occurred, is discrimination on the basis of sex but the procedures of the Board must follow as I have ruled.”

    Commentary

    Positive

    “[E]ven if O'Callaghan v. Loder is demolished, there is now strong authority from other jurisdictions that could be relied on to support the proposition that in the absence of specific sexual harassment provisions, sexual harassment complaints can be brought as sex discrimination cases. See for example R. v. Equal Opportunity Board; ex parte Burns [1985] V.R. 317; Hall and Others v. Sheiban Pty Ltd (1989) E.O.C. 92-250.” (Hunter 1991, p.324)

    Negative

    “Apart from Burns’ case (1984) E.O.C. 92-112 (where the sexual harassment was by co-employees), sexual harassment cases before boards and tribunals in Australia have involved women and girls harassed by the ‘boss’ or manager, a person in a superior position. Yet despite the O’Callaghan v. Loder case stating that sexual harassment involves ‘a person in a position of power’, nominating ‘boss’ or superior, sexual harassment also occurs where an employee is harassed by a fellow employee. Provisions now included in the Victorian and Western Australian Acts, and the Sex Discrimination Act 1984 (Cth), now make this clear.” (Scutt 1990, p.151)

1984-1992–Sex Discrimination Act 1984 (Cth)

The Sex Discrimination Act 1984 (Cth) was introduced into Australian law subsequent to Australia’s ratification of the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) on 28 July 1983. It was the first legislation in the world to provide a definition of ‘sexual harassment’ with a separate cause of action. However, it initially applied only in the areas of employment and education and only in cases where there was an ‘abuse of power’ harassment, where the complainant feared that rejection of sexual advances or behaviour would lead to a detriment to her employment. In cases where there was hostile or sexualised environment harassment, it was still necessary to establish that this constituted a form of sex discrimination under the regular sex discrimination provisions. Many of the first cases were brought by young women in unskilled or semi-skilled jobs in small workplaces. These cases demonstrate the initial difficulty experienced by complainants in persuading decision makers to recognise sexual harassment as unlawful and to apply the legislation as it was intended.

  • Sex Discrimination Act 1984 (Cth), s 28

    The Sex Discrimination Act 1984 (Cth) was introduced as a private member’s Bill by Senator Susan Ryan. It included provisions relating to sexual harassment which occurs in the areas of employment and education.

    Second Reading Speech, 2nd June 1983, Senator Ryan:

    “The need for such a law is now widely understood and accepted. Throughout Australia women experience discrimination on the basis of their sex and their marital status. In three States there are avenues for redress of infringements of women's rights. In other States and in the range of areas which are the responsibility of the Commonwealth there is no remedy. The result is economic and social disadvantage and a significant impediment to the exercise by Australians of fundamental rights and freedoms.”

    “The statistics give clear evidence of deeply embedded structural inequalities in our society … This Bill offers an opportunity to combat some of these inequalities.”

    “The Bill does not attempt to deal with all forms of sexual harassment but only with sexual harassment which can be characterised as discriminatory in nature, in the sense that it is linked to a belief that a rejection of an unwelcome sexual advance, an unwelcome request for sexual favours or other unwelcome sexual conduct would disadvantage the person in relation to employment or educational studies. The Government will be considering how best to deal with other forms of sexual harassment and will be seeking the views of women's organisations on this matter.”

    The original definition of sexual harassment under s 28 was as follows:

    "(3) A person shall, for the purposes of this section, be taken to harass sexually another person if the first-mentioned person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or engages in other unwelcome conduct of a sexual nature in relation to the other person, and–

    1. the other person has reasonable grounds for believing that a rejection of the advance, a refusal of the request or the taking of objection to the conduct would disadvantage the other person in any way in connection with the other person's employment or work or possible employment or possible work; or
    2. as a result of the other person's rejection of the advance, refusal of the request or taking of objection to the conduct, the other person is disadvantaged in any way in connection with the other person's employment or work or possible employment or possible work.

    (4) A reference in sub-section (3) to conduct of a sexual nature in relation to a person includes a reference to the making, to, or in the presence of, a person, of a statement of a sexual nature concerning that person, whether the statement is made orally or in writing."

    Feminist commentary

    Positive

    “In 1981, Senator Susan Ryan (Australian Labor Party) introduced a private member's Bill into the Commonwealth Parliament to proscribe sex and marital status discrimination. The Bill failed to gain the support of the incumbent (Liberal National Party Coalition) government and it lapsed with the federal election held in 1983. The election saw a change in government and later that year Senator Ryan introduced a second Sex Discrimination Bill into the Senate. This second attempt coincided with the O'Callaghan decision. After lengthy and heated parliamentary debate, considerable redrafting and compromise, the SDA was enacted in 1984. Unlike the earlier 1981 federal Bill, and the earlier state sex discrimination statutes, the 1983 Sex Discrimination Bill expressly prohibited sexual harassment. Thornton [1990] writes that this explicit inclusion was a result of pressure brought to bear by women's groups. Those opposed to this inclusion had to be content with assurances from Senator Ryan that it was not an 'attempt to deal with all forms of sexual harassment but only with sexual harassment which can be characterised as discriminatory in nature'. It was thus the first Australian statute to define sexual harassment, while confirming its status as a form of sex discrimination.” (Mason and Chapman 2003, p.206)

    “The passage of the Sex Discrimination Act 1984 (Cth) (SDA) represents a high political moment in the history of gender relations in Australia. The seemingly protracted debates of 1983–84 were marked by a deep anxiety about sex roles, the patriarchal family and the wellbeing of children. The hysterical propaganda campaign and the fear engendered by the Bill were out of all proportion to its modest liberal intent that women be ‘let in’ to certain domains of public and quasi-public life, including employment, on the same terms as men.” (Thornton and Luker 2010, p.25)

    Negative

    “While this definition is not concerned with the perceptions of the employer, it may cause difficulties by putting too much stress on the reasonabless or otherwise of fears for disadvantage if the advances are rejected. The definition may not be very helpful in a case where there is no real reason for an employee to fear actual dismissal, but where the employment detriment consists of the stress of having to constantly negotiate and control a sexual situation at work. A workable legal definition of sexual harassment should be able to comprehend the reality of this stress (and there is as much stress in "going along" with sexual suggestions as there is in rejecting them) in the unequal power situation typical of women's employment.” (Mills 1984, p.7-8)

    “[T]he legislation was complaint based, not proactive, which meant that the onus was on an aggrieved individual, male or female, to lodge a complaint with the Human Rights Commission (HRC) alleging discrimination.  The HRC would endeavour to conciliate the complaint in private. If this was unsuccessful, the HRC had the power to conduct a formal public hearing. At the hearing, the complainant would bear the onus of proving the discrimination according to the civil standard. The HRC did not have the power to make binding orders. Thus, even if the heroic complainant were successful at the HRC hearing, she could find herself confronted with a hearing de novo before the Federal Court in pursuit of binding orders. The debates contained no inkling of just how difficult this would prove to be.” (Thornton and Luker 2010, p.30)

  • Aldridge v Booth & Ors [1986] EOC 92-177 | austlii
    Commissioner Mitchell (Chairman), Bailey (Deputy Chairman), Ford (Commissioner)

    Summary

    The complainant, a 19-year old woman, was employed under a government employment scheme in a cake business. She had been unemployed for 12 months when she took up the position. She was interviewed by Mr Booth, who ran the business in partnership with his wife and parents, who were co-respondents. The applicant, Ms Aldridge, said at the time of interview Mr Booth had enquired how she would react if, in his own words, “he slapped her on the bum”. The complainant said that after the first week, Mr Booth began kissing her on the back of the neck, touched her buttocks and asking her would she make love to him. She said that he twisted her arm, put his hand up her dress and, if she screamed or if she protested, he would say, “How would you like a holiday on the Government?”

    The complainant said that under pressure, she consented to have sexual intercourse with her on a number of occasions. On one occasion he made approaches to her, as a result of which she ended up on the floor and he took his penis from his shorts. She said to him, “Okay, I'll do it if you get some protection”. He then went to a chemist's shop and obtained a condom. He came back and they had intercourse. She said that Mr Booth said that he would not touch her again. However she said that the acts of which she complained continued, and on numerous occasions they had intercourse.

    The Commission found that although there was evidence that her attitude towards the respondent may have been ambivalent at times, ‘by and large … his sexual acts and advances were unwelcome to her.’ They said that she was in an extremely vulnerable position and had endured the situation only because she was afraid of losing her job.

    The Commission found the complaint of sexual harassment was substantiated and the complainant had reasonable grounds for expecting the rejection of sexual harassment would lead to her dismissal. An order was made for the respondents to pay to the applicant a sum of $7000 as compensation. However, the respondents failed to pay the sum and as a result, the applicant applied to the Federal Court in order to give effect to the determination of the Commission.

    Per Commissioners Mitchell (Chairman), Bailey (Deputy Chairman), Ford (Commissioner)

    ‘It may seem surprising today that any young woman would endure the conduct of which she complained without taking some steps to bring it to an end. But…I believe that this young woman was unsophisticated, was very keen to remain in employment, and apparently thought that this was the tariff which she had to pay. It was not, and she should be recompensed. She is entitled to damages for the humiliation and injury she suffered at the hands of one who knew that she had been unemployed and that she was eager to have employment.’

  • Aldridge v Booth (1988) 80 ALR 1
    Federal Court of Australia, Spender J

    The applicant applied to the Federal Court for an order to enforce the determination of the Tribunal. The Human Rights and Equal Opportunity Commission also sought leave to intervene for an order to enforce its determination. The Court was asked to consider whether s 28 of the Sex Discrimination Act 1984 (Cth) giving effect to the International Convention on the Elimination of All Forms of Discrimination Against Women was a valid exercise of the external affairs power under the Constitution. It found that it was a valid exercise of this power.

    However, it was not possible to appeal a decision of the Tribunal to the Federal Court, because decisions of the Tribunal were not a binding exercise of judicial power. This meant that the Federal Court was required to hear the complaint de novo, and necessitated that the witnesses give their evidence again, in accordance with the rules of evidence which apply in civil proceedings. The standard of proof for such evidence is the balance of probabilities.

    The Court found that Mr Booth had engaged in conduct that amounted to sexual harassment and awarded damages of $7000. The applications against the three other respondents on the grounds of vicarious liability were dismissed.

    Feminist commentary

    Negative

    “The decision in at least one case, Allridge v Booth and Ors (1986) appears to reflect an understanding of the inherent power game in harassment and that a woman may be in ‘an extremely vulnerable position’ and only endures the situation because of her fear. This understanding, unfortunately, appears to equate vulnerability with youth.” (Tyler and Easteal 1998, p.213)

    At the federal level, another difficulty arises, not specific to sexual harassment but germane to all cases brought to the Human Rights and Equal Opportunity Commission, before which the matter is initially heard. The commission has no power to enforce its orders. Thus, in the Queensland case of Aldridge v. Booth (1988) E.O.C. 92-222, although harassment including forced sexual intercourse was found proved and an award of $7,000 damages made, when Mr Booth refused to obey the order, Ms Aldridge was obliged to take the matter to the Federal Court. The entire case had to be re-argued. At its conclusion, sexual harassment was again found to be proved against Mr Booth and the award of $7,000 confirmed. But the necessity for reiterating all the evidence previously given, requiring the woman to repeat her story and subject herself again to cross-examination, is inappropriate and unfair. Sexual harassment cases are likely to be particularly stressful. Either the commission should be reconstituted as a judicial body with power to enforce its own orders or the Federal Court should be the tribunal at first instance.” (Scutt 1990, p.152)

    Neutral

    “In one of the few cases that have gone to the Federal Court on the Sex Discrimination Act provisions, Aldridge v Booth, Spender J held that because the rules of evidence were not applicable to proceedings before the Commission, its findings were of no assistance. He stated that he did not ‘think it right to attach any particular weight to the determination made by the Commission’ because section 82 of the Act required the Court to be satisfied that there had been an unlawful act or conduct. Spender J held that this meant that the Court had to be satisfied on the basis of the civil standard of proof in respect of both the facts and law at issue … I would conclude that unless a complaint is amenable to settlement by conciliation, proceedings under the Sex Discrimination Act effectively differ little from the common law paradigm based on an individualised and formalistic adversarial model. Arguably this is of little consequence as conciliated settlements are expressly made the object of the Act.” (Purdy 1989, pp.364-365)

    “In Aldridge v Booth, Spender J found that despite the investigation of a complaint by the HREOC, subsection 82(1) of the Sex Discrimination Act 1984 required the Court to satisfy itself that as a matter of law and fact the actions in question were unlawful … This approach meant that a complaint was investigated afresh by the Federal Court and therefore a determination by HREOC was without effect if challenged or not complied with.” (Nand 1997, p.17)

    “It is clear that active preventive measures must be in place for an employer to avoid liability. In the leading Federal Court decision of Aldridge v Booth, Justice Spender noted that the onus under s 106 SDA falls on the employer or principal to establish that all reasonable steps have been taken to prevent sexual harassment.” (Parker 1999)

  • Hall, Oliver and Reid v Sheiban [1988] HREOCA 5 | austlii
    Human Rights and Equal Opportunity Commission, Commissioner Einfeld

    Summary

    Three female complainants, Susan Hall, Dianne Oliver and Karyn Reid, were employed by the first respondent, a male medical practitioner, as receptionists. The second respondent, the first respondent's company, was the formal employer of the three women. The complainants said that in their pre-employment interviews, the respondent asked questions which were unnecessarily intrusive and personal, including how often they had sex and whether they would have an abortion if they fell pregnant. Further to this, the allegations of sexual harassment by the women against the first respondent included the following:

    • the respondent cuddling the complainant by placing one arm around her waist and squeezing her towards him;
    • placing his hands on her shoulder, pressing her against the wall and attempting to kiss her;
    • grabbing hold of her by the waist and trying to pull her down onto his knee and kiss her;
    • grabbing her, placing his right hand around her neck and trying to pull her head down towards his in order to kiss her. It was physically hurtful and she screamed and shouted at him;
    • the complainant Oliver said that the respondent:

      • made comments to her that "You've got a nice backside", "Do you like sex?", "I'd like to get on top of you, and "I'd like to have sex with you";
      • placed his hands on her shoulder whilst she was sitting down and moved his hands down towards her breasts;
      • placed his hand under her uniform and touched her inner thigh, whilst filling in the consultation book one night;
      • pulled down the zip on the front of her uniform past bra level and then pulled it up again after telling her that it was too low.

    In considering whether the pre-employment conduct was unlawful under s 28, Einfeld J commented that the law requires a link between the private sex-based remarks of the interviewer and the possible employment of the complainants, and in the case of these complainants the “link was entirely missing.” Einfeld J found the first respondent had sexually harassed the three complainants. However, he rejected Oliver's evidence that the respondent proposed intercourse. Einfeld J found that the first respondent engaged in “occasional” and “mild” attempts at physical contact and statements that “may be seen as juvenile and thoughtless and quite disregarded the feelings of the complainants.” He refused to award damages to any of the complainants.

    Per Einfeld J

    “Rampant discrimination in employment has been practised against women for generations. A feature of the discrimination has been the actual or attempted imposition by males or females of overt, unsought and unwelcomed sexual suggestions or impositions, and the taking of unacceptable liberties with, and the overbearing of the will of, women by the pressure of employment or the male dominance of economic power. Such physical demonstrations, if unsolicited and without consent, invade the dignity of the women involved and discriminate against them. They also demean the men and debase the human rights of the whole society. Some cultures have historically and ethnically made greater use than others of taction as a normal part of everyday life. This may explain but does not permit unlawful sexual harassment in Australia by persons who have absorbed those societal heritages.” (p.1)

    “Much remains to be achieved in the quest for equal opportunity and proper treatment for women in employment. This legislation is intended to assist in that quest. However, it is not designed to be administered in the absence of balance, realism and commonsense. It is concerned with providing for and reinforcing the dignity of women, not with creating a marketplace for exaggerated or imagined allegations against men, even men engaging in conduct which had immature or unlawful features. It is especially not intended to provide an opportunity for vindictive or collusive allegations by a group of women against one man because of their dislike of or distaste for him as a man or as an employer or for some other extraneous reason.” (p.7)

    Feminist commentary

    Negative

    “I believe that the refusal to award compensation trivialises the harm suffered by many women in the workplace and legitimates sexual harassment as an appropriate way for men to behave. The terms in which the decision was framed indicate a failure to understand the nature of the injury involved. Furthermore, in my opinion, President Einfeld misunderstood the legislation on sexual harassment he was enforcing.” (Morgan 1988, p.157)

    “Einfeld said that the Sex Discrimination Act is not concerned with:

    creating a marketplace for exaggerated or imagined allegations against men, even men engaging in conduct which had immature or unlawful features. It is especially not intended to provide an opportunity for vindictive or collusive allegations by a group of women against one man because of their dislike of or distaste for him as a man or as an employer or some other extraneous reason.

    This ‘policy statement’ was unnecessary given Einfeld’s own finding that the complaints were not, in substance, made up. Such statements contribute to the creation of a climate where allegations of sexual harassment are not believed, where women are once again constructed as liars.

    A similar misogynist construction of the nature of sexual harassment complaints is evident in Einfeld’s criticism of the Anti Discrimination Board’s handling of the complaints. In one page of his reasons, Einfeld referred to ‘Ms Hall’s small complaint’, he referred to all three complaints as ‘these simple matters’ and again says that ‘the claims were small’. As will be seen below, the complainants alleged quite serious forms of sexual harassment, and Hall alleged that Sheiban had committed an assault, (which Einfeld apparently found proved) on which she said the police would not act. Einfeld criticised the Board for delay, ineffective attempts at conciliation and a possible lack of impartiality, although on the latter point he said no positive findings could be made. Einfeld concluded this section with further derogatory references to the ‘smallness’ of the complaints stating that ‘everyone involved has been allowed the dream that if the cases take so long to reach a hearing, they must be significant in size and importance’ and that ‘[t]he Commission will in future consider exercising its power if public money will be wasted on complaints subjected to excessive delays, especially those which are trivial or insubstantial’.” (Morgan 1988, p.158)

    “[T]he really disturbing aspect of the statements made about how the 'ordinary woman' would or should behave is not that Einfeld overlooked the fact of two of the complainants' limited work experience but the notion that is present throughout his decision that if a woman is used to dealing with men's harassment, it should not upset her. This appears to take us back to an era when the law did not recognise sexual harassment as unlawful behaviour. I realise, of course, that Einfeld did make a finding of unlawful sexual harassment, but if it is not worthy of compensation, it appears as if it is not a real injury.” (Morgan 1988, p.159)

    “The decision illustrates one of the difficulties of anti-discrimination legislation: it is ultimately enforced, at least at the tribunal or court level, largely by men who seem to have no understanding of the oppression experienced by women and other subordinated groups. Einfeld reserves his greatest criticism for the women complainants (and the Anti-Discrimination Board) rather than the respondent whom he found had engaged in unlawful behaviour. Beyond the description of Sheiban’s evidence as ‘uncertain', 'vague' and as indicating ‘rank prevarication’, the ‘fault’ seems to lie in the women, even where there is no suggestion that they failed to ‘dress sensibly’ or otherwise encouraged the ‘taction’ to which they were exposed. Their fault appears to lie in their failure to accept with equanimity the respondent’s behaviour.”  (Morgan 1988, p.160)

    “The ‘reasonable woman’ standard does not overcome the problem of individual decision-makers using their own standards to reach a decision … [t]he oft-quoted decision of Justice Einfeld in Hall, Oliver and Reid v Sheiban provides a case on point. Einfeld J found that any ‘sensible woman’ would not have been offended by the employer’s behaviour, which included asking women in an interview if they were sexually active and, once they were employed, lowering the zips on their uniforms and making sexualised comments.  Although overturned on appeal, this decision does show that the views of the decision-maker can easily infiltrate the standard of ‘reasonableness’.” (Mackay 2009, p.198-199)

    “Despite finding for the complainants, the President of the Commission, Justice Einfeld, noted much of what was complained of was "mild if ridiculous advances or conduct" and could be considered within the bounds of the normal life experiences of most women. In one sense we might agree with Justice Einfeld's words though not with his interpretation. It is true that forms of harassment such as these women complained of "can be considered within the bounds of the normal life experiences of most women". That is precisely our point. Sexual harassment should not be part of 'normal life experiences' of any women. In his view no discernible (or at least lasting) harm had occurred and he therefore ruled that awarding damages was not appropriate.”  (Jose and Bacchi 1994, p. 2)

  • Hall v A & A Sheiban Pty Ltd (1989) EOC 92-250 | austlii
    Federal Court of Australia, Lockhart, Wilcox and French JJ

    Summary

    The applicants sought a review under the Administrative Decisions (Judicial Review) Act 1977 of the decision of Einfeld J in Hall & Ors v Sheiban & Anor (1988) EOC 92-222.

    It was held that the finding of the Commission that the respondent's behaviour in interrogating the applicants in the pre-employment interviews was not sexual harassment was an incorrect application of the statutory test of sexual harassment. The court also found that the Commission had made an error in law in its failure to order the payment of compensation to the applicants for the sexual harassment.

    Feminist commentary

    Positive

    “All three judges concluded that Einfeld J had erred in law in his understanding of the statutory definition. They stated that he had substituted a definition requiring the applicants to actually suffer disadvantage (in the form of a failure to get the job), or had treated the complainants' own beliefs (manifest in a refusal to answer some questions) as determinative for the statutory definition as laid out in s 28(3)(a). This required an assessment of whether it was reasonable to believe employment disadvantage would follow their rejection of the questions. Any finding by Einfeld J that the belief could not be reasonably held was also wrong. In the court's view, even though the complainants had all been employed, and had answered many of the questions, it was reasonable, in the circumstances, to believe that employment disadvantage would follow rejection of the questions.” (Morgan 1989, pp.278-279)

     “The judges also made interesting observations on the scope of s 28. Section 28(1) provides that it is illegal to harass sexually an employee, employment seeker, or for an employee to sexually harass a fellow employee. (Compare s 28(2) covering commission agents and contract workers.) Section 28(3), according to the Federal Court, is a provision which goes on to deem that certain behaviour amounts to sexual harassment. The court decided that s 28(3) should not be read as narrowing the scope of s 28(1). (Lockhart J at 77,389-90; Wilcox J at 77,402, though he found it was not necessary to decide the point because Sheiban's conduct fell within s 28(3); French J at 77,428).” (Morgan 1989, p.279)

    “Whilst some shared the concern of Einfeld J about the way that the legislation might unduly limit working relationships, others were alarmed at the message that Einfeld J transmitted to the working public … Indeed, the view of Einfeld J on the need for repetition in the conduct was later overturned by the Federal Court in the ensuing Sheiban appeal. Justice Lockhart stated that the definition of sexual harassment in the SDA 'clearly is capable of including a single action and provides no warrant for necessarily importing a continuous or repeated course of conduct'.” (Mason and Chapman 2003, pp.207-208)

  • Bennett v Everitt & Whyalla Fish Factory [1988] HREOCA 7 (1 December 1988) | austlii
    Human Rights and Equal Opportunity Commission, Einfeld J (President)

    Summary

    The two applicants, a single mother aged 19 years old and a 15 year old girl, complained of sexual harassment by the respondent, the director of Whyalla Fish Factory. The applicants’ complaints included a pattern of sexual assaults, intimidating behaviour and underpayment for their work.

    Sexual harassment and sex discrimination were found in respect of the respondent’s conduct throughout the complainants’ employment. Compensation for both the under-payment of wages and sexual harassment was ordered.

    Commentary

    “[The court in Bennett] held that the complainants in this case answered the questions because of the belief that if they did not do so they would or might not be employed. And that they were entitled to believe that they would not get the jobs if they did not answer what were offensive embarrassing, and essentially irrelevant and unnecessary questions. The pre-employment questioning or the interview where such questions are asked places the complainant in a quandary. The complainant has to establish a nexus between the employer's conduct and her allegations. … [This was] illustrated in Bennett:

    1. if she refuses to answer, she may not get the job. She will then have a case under the Act but no employment;
    2. if she refuses to answer but gets the job, she has employment but no case (because there was no disadvantage);
    3. if she answers and does not get the job, she has neither employment nor a case (because there has been no rejection) unless the answers are a constructive rejection, in which event the case will often be an obviously poor practical substitute for the employment;
    4. if she answers the question freely and without act or imputed objection, and gets the job, she has employment but no case (because there has been neither rejection nor disadvantage). If the answers amount to constitute to a constructive rejection, there is no disadvantage.” (Srivastava and Sharma 2000, p.175)
  • A v B and C [1991] HREOCA 6 | austlii
    Human Rights and Equal Opportunity Commission, Commissioner Moss

    Summary

    The complainant worked as a matron in a boys’ school boarding house. She alleged that she had been subjected to sexual harassment by a resident Master in the boarding house and the school. The allegations of conduct of a sexual nature involving the first respondent included the following:

    • he made unwelcome sexual advances to her;
    • uninvited conduct of a sexual nature;
    • allegations about the headmaster’s sexual orientation;
    • on two occasions he mutilated clay dolls made by the complainant by making gashes with a ruler in the genital area;
    • he tackled her and laid on top of her in the common room;
    • he grabbed her head whilst she was taking dishes from the food warmer in the dining room, holding it towards his genital area and saying "While you are down there …"; and
    • on one occasion he touched her intimately as she sat down on the passenger seat of his car;
    • walking around in the dormitory in front of students with genitals exposed;
    • threats of violence.

    There were also allegations concerning the general conduct and behaviour of teachers at the boarding house, such as sexual jokes, comments and innuendo creating a sexually discriminatory work environment. While the Commissioner accepted that such conduct was sexual in nature and possibly unwelcome, she was not satisfied that it was conducted ‘in relation to’ the complainant, but ‘rather, it appears to have been part of the general work environment’. Commissioner Moss described some of this behaviour as ‘physical horseplay’ which, while childish and puerile, often occurred in a predominantly male environment.

    The Commission held the allegations of sexual harassment were not substantiated and, as a consequence, there was no case in relation to the second respondent. The Commission held that for two of the incidents there was no independent evidence that the incidents occurred. Commissioner Moss stated that “[e]ven accepting her account as accurate, it is nevertheless difficult to apprehend that any disadvantage flowed to her in relation to her work as a result of the incident or her protests, other than a relatively insignificant and transitory embarrassment. Accordingly, it would not amount to sexual harassment.” (p.9)

    Feminist commentary

    Negative

    “Although the removal of a need to show employment disadvantage (additional to the unwelcome sexual conduct) provides greater opportunity to bring hostile work environment within the legislative parameters of sexual harassment, this potential may still be limited by the requirement under the SDA that the sexual conduct occur 'to' or 'in relation to' the person harassed. For example, in A v B, a nurse, the only woman employee at a boarding school for boys, complained that her work environment was imbued with sexual jokes and innuendo, and that this constituted a hostile work environment. The complainant failed in her complaint of sexual harassment on the ground that the sexual comments and innuendo did not occur 'in relation to' her. Rather, the comments appeared to be 'part of the general work environment and there was no evidence that … [the behaviour] was directed to or accentuated by the presence of the Complainant'.” (Mason and Chapman 2003, pp.216-217)

  • Dobrovsak v AR Jamieson Investments Pty Ltd [1995] HREOCA 32 | austlii
    Human Rights and Equal Opportunity Commission, Commissioner Keim

    Summary

    The complainant performed secretarial duties in a small office. She argued that the three men she worked with, Mr Smillie, Mr Eastwood and Mr Jamieson engaged in conversations which led to them asking her personal questions relating to her private life and that this constituted sexual harassment. Furthermore, the complainant argued that after a work Christmas party, Mr Jamieson engaged in sexual conduct which included both sexual propositions and touching her breasts and other parts of her body.

    The Commission held that Mr Jamieson sexually harassed the complainant on the evening of the Christmas party. Accordingly, the second respondent was also liable. The Commission also found, in accordance with the propositions from Aldridge v. Booth, both the first and second respondent also discriminated against the complainant on the ground of her sex in breach of s. 14(2)(d) by subjecting her to a detriment. The Commission found that the incident was sufficiently serious and sufficiently connected with the complainant’s employment that both respondents also discriminated against her on the ground of her sex in the terms or conditions of employment, that the company afforded to her in breach of s. 14(2)(a).

    However, in regards to the conversations, Commissioner Kiem found that although Mr Jamieson admitted making sexual comments, he could not find such conduct was unwelcome. He found this was evidenced by the complainant’s failure to express any objection at the time; the absence of any reference to this conduct in the complaint made to the Human Rights and Equal Opportunity Commission; and the difficulty for the complainant to separate her attitude to that conduct at the time, from her view of that conduct after a considerable period of time while suffering the detrimental effects of the events of the night of the Christmas party.

    Note: This case was heard under the legislation prior to the amendments to the definition of sexual harassment under s 28A(1), which came into effect on 13 January 1993, on the grounds that the behaviour complained of occurred mainly in the latter part of 1992.

    Commentary

    Negative

    “Amendment of the definition of sexual harassment was a significant change which set the bar for establishing sexual harassment at a markedly lower level than under the previous s 28(3). A complainant no longer had to demonstrate detriment or a reasonable belief that detriment would occur in addition to the unwelcome harassment itself. Under s 28A, the incidents of sexual harassment that failed for perceived lack of detriment in Tracey Lee Thompson v Nissan Motor Co (Australia) Ltd, Liddle v Morley, A v B & Anor, Dobrovsak v AR Jamieson Investments Ply Lid & Anor and Flewell Smith v Rolson Street Pty Ltd & Fiorelli (discussed above) would arguably have succeeded.” (Pace 2003, p.199)

1992–2014 Expansion of coverage

In 1992, the sexual harassment provisions of the Sex Discrimination Act 1984 (Cth) were strengthened to prohibit sexual harassment not only in employment but also in other areas of public activity. A new definition of sexual harassment was also introduced (s 28A(1)), predicated on a single requirement, that a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimated. Nevertheless, during this period, decision-makers sometimes failed to recognise sexual harassment, but rather, attributed it to normal workplace culture.

During the following two decades, cases of sexual harassment were characterized by a range of themes. The distinction between ‘quid pro quo’ (where a complainant fears that rejection of sexual advances or behaviour would lead to a detriment to her employment) and ‘hostile environment’ types of sexual harassment (where a workplace is permeated by sexualised behaviour which is hostile to women) continued to be a feature in some cases, as did the standard of proof to be applied. Some cases were characterised by multiple forms of discrimination, such as race and sex discrimination, demonstrating the intersectionality of forms of oppression. In a few cases, men pursued claims of harassment and some cases concerned harassment outside the context of employment, such as in the provision of goods and services. The question of the vicarious liability of employers for the actions of their employees was an important area of jurisprudence. Decision-makers do not always award damages in sexual harassment cases, however, in a few instances, cases have attracted signficiant attention, particularly when they involve substantial amounts in damages.

The following section includes an explanation of the revised legislation. The cases are then organised according to these themes. Of course, many cases are characterised by multiple and overlapping themes.

  • Sex Discrimination and other Legislation Amendment Act 1992 (Cth)

    Summary

    The legislation amended the Sex Discrimination Act 1984 by repealing Div 3 of Pt II and inserting a new Div 3 which extended the parameters of sexual harassment to other areas of public activity, namely:

    • employment and partnerships (s 28B);
    • by bodies concerned with occupational qualifications (s 28C);
    • in registered organisations (s 28D);
    • by employment agencies (s 28E);
    • in educational institutions (s 28F);
    • in the provision of goods and services (s 28G);
    • in the provision of accommodation (s 28H);
    • in land dealings (s 28J);
    • in clubs (s 28K);
    • in the administration of Commonwealth laws and programs (s 28L).

    The new definition of sexual harassment in s 28A(1) was predicated on a single requirement, that a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimated.

    Commentary

    Neutral

    “The new definition of sexual harassment, in s 28A, also differed from the old in that the two requirements in s 28(3)(a) and (b) … were replaced with a single requirement, in s 28A(1), that a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated. In my opinion, it is clear from the terms of the above amendments (and also from the Explanatory Memorandum and Second Reading Speech to the Amending Act) that the Amending Act was not intended to alter the relationship between ‘sexual harassment' and ‘sex discrimination’ under the S D Act. Rather, the introduction of Div 3 in its expanded terms was intended simply to replace the test for sexual harassment and to extend the prohibition against sexual harassment into other areas of public life.” (Rees et al 2008, p.513)

    Feminist commentary

    Negative

    “The recent amendments to the Commonwealth Sex Discrimination Act – redefining sexual harassment, and extending the areas and situations in which a claim of sexual harassment might be brought – may well reinsert notions of morality (albeit together with notions of equality) into our understanding of sexual harassment. The Commonwealth Act continues to define sexual harassment as an unwelcome request for sexual favours, an unwelcome sexual advance or other unwelcome conduct of a sexual nature, but this is unlawful only if ‘a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated. There are undoubtedly many positive things about these legislative amendments, not least the clear protection against hostile environment harassment. There are also many aspects that remain problematic – for example, the issues of whose perspective is embodied in the notion of ‘reasonableness’ – which are outside the scope of my discussion here. Of particular concern is the operative phrase describing the reaction of the target of sexual harassment (and the reasonable observer): that she be ‘offended, humiliated or intimidated’. Sexual harassment is not about being offended by some ‘off-colour’ remark or by conduct that may amount to an indecent assault or rape. It may well be about being ‘intimidated’ or ‘humiliated’ by such behaviour. To maintain that one was offended is to call on the paternalistic protection of law, rather than to assert a claim to equality. There is an easy elision between ‘being offended’ and moral prudery, which could well undercut the force of the legislative amendments. At the very least, the use of the language of offensiveness promotes an understanding of sexual harassment as being ‘about’ morality rather than being ‘about’ equality.” (Morgan 1995, p. 92)

‘Quid pro quo’ vs ‘hostile environment’ harassment

Introduction

In some cases, sexual harassment results in a complainant fearing that rejection of unwanted sexual advances or behavior would lead to a detriment to her employment. This is commonly referred to as ‘quid pro quo’ or ‘abuse of power’ harassment. However, in many cases, rather than specific incidents, there is a generalised workplace environment which is hostile to women. Under the amendments to the SDA introduced in 1992, it was no longer necessary for a complainant to establish that the unwelcome sexual conduct led to actual work-related disadvantage or detriment, or that she had reasonable grounds for believing that if she complained it would. It became possible for a complainant to argue that there was a generalised and/or pervasive workplace environment which is sexualised and/or hostile to women and this may be found to be sexual harassment. The following cases demonstrate this theme.

  • Ashton v Wall & Anor (1992) EOC ¶92-447
    Equal Opportunity Tribunal of Western Australia, President Hasluck, Members Buick and French

    Summary

    “The complainant was a part-time salesperson in a shop owned by the respondent. She alleged that during the time of her employment with the respondent, he sexually harassed her. The respondent denied the allegations, claiming that he and the complainant had a love affair which had come to an end.” (CCH 1992: 79, 162)

    “The Tribunal identified the main issue in the case as whether the acts of sexual intercourse complained of were unwelcome.” (CCH 1992: 79, 164)

    The complaint was dismissed by the majority of President Hasluck and Deputy Member French, but would have been upheld by Member Buick, in dissent.

    Per President Hasluck and Deputy Member French:

    1. “The parties were involved in a love affair or romantic attachment … The affair may have been misguided, and caused the complainant pain eventually, but the presence of a deeply held affection, as evidenced by the anniversary card, meant that the relationship and the sexual conduct associated with it was characterised essentially by mutual attraction, rather than by fear or domination of the kind required to make out a complaint of discrimination or sexual harassment.” (CCH 1992: 79, 164)
    2. “The test [of the welcomeness of the sexual conduct] was not how the complainant viewed the advances and sexual conduct in retrospect, after she had time to dwell upon the one-sided nature of the relationship, and the futility of what had occurred but, viewed objectively, whether the advances and the acts of sexual conduct were unwelcome at the time they happened, and whether the respondent reasonably understood that his conduct was acceptable.” (CCH 1992: 79, 164)
    3. “During the initial phase of her employment the complainant may have been subjected to suggestive remarks and fleeting physical encounters … The first act of sexual intercourse occurred in circumstances which … took her by surprise, as it took place suddenly, in cramped surroundings and in a rather perfunctory way. This suggested that the respondent’s conduct on that evening, although not the subject of a specific protest by the complainant, contained an element of domination. However, any sense of the respondent’s conduct being unwelcome was then overshadowed and condoned by the love affair that followed.” (CCH 1992: 79, 164)

    Per Member Buick:

    1. “The respondent’s propensity to sexually touch his female employees was a pervasive pattern at his business. He clearly believed it was his right as an employer to sexually harass his shop assistants.” (CCH 1992: 79, 165)
    2. “Sexual harassment of the complainant occurred from the beginning of her employment by the respondent, up to and including the first occasion of sexual intercourse. Evidence to conclude that the sexual relationship was coercive after that date was not conclusive.” (CCH 1992: 79, 165)

    Per President Hasluck and Deputy Member French:

    “In a recently published work, The Liberal Promise by Margaret Thornton, the learned author suggests that sexual harassment is pervasive within the workplace because there is a coincidence between maleness and domination on the one hand, and femaleness and subordination on the other hand, in the same way that sexual relations have been constructed in our society. Since the latter are understood as “natural” they are not easily separable from the normative workplace paradigm. Thus, most incidents of sexual harassment do not crystallise into complaints.

    “Even though the acts of sexual intercourse might not have amounted to a criminal offence, it is inconceivable that a woman subjected to repeated acts of sexual intercourse occurring without consent, or as a consequence of a consent reluctantly given … would endure such a state of affairs except from dire necessity.”(CCH 1992: 79, 188-9)

  • Zoiti v Cheesecake Factory & Quirk [1993] HREOCA 12 | austlii
    Human Rights and Equal Opportunity Commission, Commissioner Nettleford

    Summary

    The complainant was a 17-year-old assistant at The Cheesecake Factory, the first respondent. The second respondent, Mr Quirk, was a pastry cook supervisor. A typical example of something in this period which irritated the complainant was that Mr Quirk called her "a sweetie and better looking than the last girl" and described her as having "big tits". She was accused of being late for work, when, in fact, she arrived early or on time. Comments were made about her appearance with accusations that she was not clean. On one occasion, as she was passing Mr Bosco, he made two different attempts to grab hold of her.  She was made the target of comments such as "she's calling up her lesbian mates again". The complainant was dismissed from the company. She called on evidence from other employees to support her allegations.

    The Commission found the complainant was correct when she contended that the first respondent dismissed her because of the problems which could be seen ahead, and it was easier to dismiss her than to dismiss three men, two of them senior tradesmen. The Commission found she was subjected to sexual harassment and found the employer vicariously liable.

    Commentary

    Neutral

    “In Zoiti v The Cheesecake Factory Pty Ltd & anor, the complainant who was a factory worker with the respondent company, alleged that the second respondent, a senior pastry cook, had harassed her sexually with the knowledge of the management of the company, which subsequently dismissed her from employment. In support of these allegations, the complainant sought to have other witnesses testify to the fact that they also had been sexually harassed by the individual respondent and that the company was well aware of these incidents. The effect of the similar fact evidence was that it confirmed the reliability of the Human Rights Commission's finding that the evidence of the complainant was to be preferred to that of the respondent company and the second respondent. Just as it is open to a complainant to rely upon evidence of previous misconduct to prove discrimination indirectly, so a respondent may bring evidence of past conduct that tends to rebut such an allegation.” (Rajapaske 1998, pp.99-100)

  • Horne and Anor v press Clough Joint Venture and Anor (1994) EOC 92-556
    Western Australian Equal Opportunity Commission, Deputy President Roberts-Smith

    Summary

    The complainants were the only female workers at a construction site. In the offices and crib huts where the complainants cleaned, there was a large amount of pornographic material on the walls. After a request that a particular poster be removed, there was an increase in the number of offensive posters displayed. When the complainants complained to the Metal and Engineering Workers Union (MEWU) about the posters and their desire that they be removed, the MEWU site organiser criticised their attitude and advised that the complainants not persist in complaining as it would make them very unpopular on site. The display of the material continued and the complainants were insulted and criticised both when requesting the material be taken down and in the normal execution of their duties. Conditions deteriorated to the point where even more explicit material was displayed and there was a risk of physical attack.

    The complainants contended that the union had allowed the employer to discriminate against them on the basis of their sex, through their employees' failure and/or refusals to support the complainants in their efforts to remove the pornographic material from the work site and vicariously for its employees' responsibility for the display of the pornographic poster in the union site office. The complainants alleged that the presence of pornography in their workplace amounted to sex discrimination; that their employer knew of the presence of the posters and was therefore directly liable under the Act; that their employer was liable for victimisation and that their employer had failed to take reasonable steps to prevent the discrimination and victimisation. The complainants also claimed victimisation under ss 67 and 161 of the Equal Opportunity Act 1984 (WA).

    The Tribunal found in favour of the women against their employer. The women were awarded damages of $92 000.

    Feminist commentary

    Positive

    “In the case of Horne & Anor v Press Clough Joint Venture & Anor (‘Horne’), the Western Australian Equal Opportunity Commission recognised that the prolific display of pornography in a male dominated workplace amounted to sex discrimination and victimisation by the women’s employer and trade union. The case is an example of how a sex discrimination approach to the regulation of pornographic harm allows women to take action against the discrimination pornography causes, while educating the public against discriminatory behaviour that, like pornography, is gender-based.” (Evans 2006, p.81)

    Negative

    “While reinforcing the right of employees to 'quiet enjoyment of one's employment', which extends to 'not having to work in an unsought sexually permeated work environment', the case was decided on the basis that the complainants had been discriminated against, as distinct from sexually harassed.” (Mason and Chapman 2003, pp.216-217)

  • Dunn-Dyer v ANZ Banking Group (1997) EOC 92-897 | austlii
    Human Rights and Equal Opportunity Commission, Commissioner Keim

    Summary

    The complainant worked for the ANZ Bank. She alleged 14 acts of discrimination over the course of her employment, which involved the existence of hostile working conditions associated with the male dominated workforce. It was alleged that office rituals involved the giving of lewd gifts at Christmas and the process by which when a woman left a department, her bra was cut off and removed. It was also alleged that she was referred to as a 'mother hen' and her department called a 'nursery', a reference to her gendered role in the workplace. She alleged that the management had not only passed her over for promotion and refused to cooperate with her plans for further education, but had made her redundant.

    The Commission held:

    1. All of the incidents taken together and even some of the matters taken on their own are capable of constituting, in some circumstances, a hostile workplace such as to constitute sexual harassment or sex discrimination in breach of the Act. On the basis of onus of proof issues, however, the events complained of did not constitute sex discrimination in breach of the Sex Discrimination Act.
    2. The decision not to appoint the complainant in the State Treasurer's position was not influenced in any way by the fact that the complainant was a woman. The decision to appoint another person was based on long experience and seniority in the bank.
    3. The use of terms such as "mother's club", "the nursery" and "mother hen" were not only derogatory but also reflected the strongly held views of the employer's supervisors. These views intruded into their assessment of the managerial qualities of the complainant and caused their assessments of her to be in error.
    4. The bank's overall position was to be supportive of its employees carrying out further studies. The supervisors' uncooperative and non supportive treatment of the employee with regard to her quite simple and basic request was found to be directed at her personally. Their conduct in obstructing the employee's access to the Masters studies was conduct which occurred on the basis of sex.
    5. The restructure leading to the employee's redundancy was made principally for the purpose of getting rid of her. The employee also suffered in the redeployment process. The employee did not have a chance to be judged properly because her managerial ability and performance was misjudged. If the employee had been judged fairly and not in a skewed manner, the chances of obtaining employment in the bank would have been significantly higher.
    6. The bank was liable for the actions of its senior employees.
    7. The respondent must pay to the complainant $10,000 for emotional upset and $125,000 for economic loss resulting from its discriminatory conduct.

    Feminist commentary

    Negative

    “In this case, a senior money market manager had claimed sex discrimination in the hostile working environment in her work area and in being made redundant. Sexual harassment formed part of the background to Ms Dunn-Dyer's sex discrimination complaint about her role as a female manager. HREOC accepted that evidence of incidents from the giving of sexual 'Kris Kringle' presents to pornographic posters located in the dealing room were capable of constituting sexual harassment or sex discrimination, 'in some circumstances'.  However, HREOC was not satisfied that the events complained of constituted sex discrimination in this case and stated that upholding such complaints 'can depend on subtleties of atmosphere which are difficult to ascertain years after the event'. The lack of subtlety in the work environment described by Ms Dunn-Dyer is evident, however, with a plastic jumping penis given to her as a Christmas present and women having their bras cut off from behind when they left the department. Despite the findings by HREOC in respect to a workplace culture that denigrated women, there was a reluctance to deal with the contribution of a sexualised work environment to this culture. The Dunn-Dyer case points to the contradictions in the way risk management works.” (Charlesworth 2002, pp. 364-365)

    “The Inquiry Commissioner was of the view that the onus of proof had not been satisfied so as to distinguish between ‘consensual and harmless bawdiness’ and a hostile workplace. The subtext here would seem to be that, in order to succeed on the sexual harassment count, Ms Dunn-Dyer was expected to step into the subject position of woman employee as ‘fragile flower’ and to demonstrate how she was personally offended, rather than demonstrate how such conduct created an environment that discriminated against women.” (Thornton 2002, p.436)

    “The disaggregation of the sexual harassment and the sex discrimination in this case reveals the artificiality of the approach. Clearly, the dealing room atmosphere and the disparagement of Ms Dunn-Dyer were related. A more holistic approach would have shown how the complainant’s competence was systematically undermined by the various kinds of harassment – including sexualised displays and gender disparagement – all of which contributed to the creation of a hostile working environment, which would have been damaging for any woman in an authoritative position. Dunn-Dyer illustrates my point that disaggregation has the effect of trivialising sexual harassment claims by disconnecting them from the discriminatory factors that animate them.” (Thornton 2002, p. 437)

  • Hopper v Mount Isa Mines Ltd and others [1997] QADT 3 | austlii
    Queensland Anti-Discrimination Tribunal, Member Atkinson

    Summary

    The complainant, the first woman to work in her position as a diesel fitter apprentice for Mount Isa Mines, alleged that following consensual sexual intercourse with a fellow male apprentice, she was subjected to verbal abuse regarding the relationship from the apprentice and other colleagues. Her superiors expressed scepticism about her ability to complete her duties due to her gender and no bathroom facilities for the complainant nor any education for her male colleagues were provided.

    Sexual harassment was proved and an award of damages was ordered.

  • Mount Isa Mines Limited, Joe Kirvensniemi, Darryl Jameson, Chris Ahern, Percy Elliot v Narelle Marie Hopper [1998] QSC 287 | austlii
    Queensland Supreme Court, Moynihan J

    Summary

    This was an appeal from a decision of the Queensland Anti-Discrimination Tribunal. The Tribunal made findings of sexual harassment and sex discrimination. The respondent on appeal argued that it was not vicariously liable for the actions of its employees.

    Ms Hopper, was employed as an apprentice diesel fitter mechanic. The allegations of sexual harassment were against the first appellant's employees and included:

    • Mr Manning saying about the respondent, in front of other employees “Narelle's hole is the size of (indicating a size by holding his hands apart). I wouldn't touch Narelle she's probably got a sexually transmitted disease.”
    • Numerous employees of the first appellant in the presence of the respondent conjectured about her sexual activity.
    • Three appellants approached the respondent and engaged in a suggestive conversation with her as to the hourly rate she would charge for sexual services.

    The respondent gave evidence that she had not seen any information posters about discrimination and sexual harassment and that neither she nor her co-workers went to any training workshops covering these issues. There was evidence that there was no proactive dissemination of anti-discrimination information in the apprentice, training and trades areas and that offensive photographs were frequently on display.

    The Court held that the Tribunal had not erred in its conclusions or findings.

    Commentary

    “… in a 1997 decision of the Queensland Anti-Discrimination Tribunal, Hopper v MIM, Kirvesniemi, Jameson, Ahern, Elliott, the employer, MIM, was not able to escape vicarious liability on the basis of a policy that had not been implemented comprehensively enough. Ms Hopper's complaints of sexual harassment and discrimination against various MIM employees were found to be justified. In order to decide whether MIM was vicariously liable, the tribunal examined the implementation of MIM's anti-discrimination policies in some detail. While training sessions and seminars for managers had been held and circulars distributed, the Tribunal held that MIM had not done enough to ensure that its policies were actually communicated to the employees in the mine with whom Ms Hopper had to work … Nor had MIM monitored the high attrition rate of female apprentices recruited to the mine or followed up the reasons for it. The Tribunal noted that a new and more effective policy and practices were promulgated in late 1994 and early 1995 well after Ms Hopper had left … Thus training of line managers will not be enough if the company has not so ensured that its policies are actually communicated to staff.” (Parker 1999)

    Feminist commentary

    “Harassment that involves inappropriate assignments is not sexual according to the legislative formulation, but sexed, because it constitutes less favourable treatment than would have been accorded a comparable male apprentice. In Hopper, the discriminatory activity was not disaggregated from the more overtly sexualised activity, so it did not prove to be a problem. It is when the harassment occurs in the absence of sexualised conduct that it is more difficult for the complainant to prove that it was sex-based. In any case, the sexualised conduct itself may be probatively problematic because a woman in a non-traditional workplace may not necessarily be 'offended, humiliated or intimidated' by the harassing acts.” (Thornton 2002, pp.431-432)

  • Carroll v Zielke & ors [2001] NSWADT 146 | austlii
    Administrative Decisions Tribunal of New South Wales, Members Rice, McDonald, Edwards

    Summary

    The complainant, Mr Zielke and Mr Favell were at the relevant times employees of W & S Zielke Investments Pty Ltd. The complainant was employed first as a shop assistant for some weeks and then as an apprentice pastry chef. She submitted that Mr Zielke, more than once:

    • asked her to wear shorter, tighter shorts, saying her "legs look so tall sexy and good";
    • asked her about her boyfriends;
    • asked "how many roots [have you] had?";
    • asked her if she had body piercing;
    • asked her to join him in swimming naked;
    • asked her to go out with him;
    • asked her to go back to his house;
    • having left newspaper clippings of advertisements for escort agencies and brothels on her workbench, invited her to call them;
    • changed cakes and pastries into shapes of sexual organs.

    The complainant said that Mr Favell, more than once said to her that she would be "a good root", and "a good one to fuck" and changed sex-related song lyrics while singing along to the radio, replacing names in the songs with the complainant’s name. He also said to her "I'd love to fuck you and fuck you hard".

    The Tribunal found Mr Zielke and Mr Favell each engaged in sexual harassment.  Zielke Investments Pty Ltd were also found to be vicariously liable for their conduct.

    Per Members Rice, McDonald & Edwards

    “In our view this is indicative of a strikingly disrespectful view he has of, at least, Ms Carroll as a woman, if not of women generally. Mr Zielke's subsequent denial of having expressed a similar sentiment at the workplace is disingenuous. In our view Mr Zielke further demonstrated his attitude to women's entitlement to equal status in the workplace when he described his attitude to having a sexual harassment policy at work: he would in future employ "strictly boys" to avoid problems such as sexual harassment complaints.” (paras 146-147)

    Feminist commentary

    “As we move away from individualised sexual overtures and sexual desire, the conduct tends to be less direct, albeit sexualised, as it consists of imagery that mimics heterosex with masculine actors and objectified women. Such conduct commonly includes pornographic displays, obscene language and crude sexist jokes. The display of pornographic images has served to mark certain workplaces as masculinised spaces, a practice that has been conventionally tolerated by management [see Home v Press Clough Joint Venture; Carroll v Zielke].”(Thornton 2002, p.431)

  • Hunt v Rail Corporation of New South Wales [2007] NSWADT 152 | austlii
    Administrative Decisions Tribunal of New South Wales, L Behrendt (Judicial Member), M Gill and L Mooney (Non-Judicial Members)

    Summary

    The complainant alleged sex discrimination and sexual harassment by her employer, Railcorp. She was employed as manager of the Train Crew Assignment Centre, the first woman appointed to that position. In that role, she was expected to implement significant changes to the workplace, including staff changes.

    The compaliant alleged that a number of incidents had occurred. Over a two year period, graffiti appeared inside the men’s toilets and on one occasion in the women’s toilets which referred to her in terms such as “slut face” and “bitch face”, referred to her husband (also a Railcorp employee) in insulting terms and referred to sexual acts, and illustrated sexual acts identifying her as performing them. The incidents occurred over a two-year period. She complained about each incident to Railcorp’s Workplace Conduct Unit and identified the people she believed to be responsible in each case, naming four employees.

    Another incident involved comments made by a talkback radio host that were derogatory about Railcorp and specifically mentioned the complainant. A further incident involved an envelope containing a pornographic magazine with the complaiant’s name on it being placed under the door to her office.

    In each instance, Railcorp claimed that it could not identify who was responsible. The complaiant was later told that she would have to relocate to another Railcorp building. She expressed concern about this, because three of the men involved in the above incidents would be working there. After receiving the direction to move, the complainant went on stress leave and did not return to work.

    The Tribunal found that the graffiti amounted to sexual harassment, and that Railcorp had taken insufficient steps to prevent it from occurring. However, it dismissed the claims of sex discrimination, finding that the problems that had occurred were more the result of a generally hostile and badly managed work environment than discrimination against a woman. They said: ‘Although H genuinely felt discriminated against and victimised, there was also substantial evidence that the work environment in general was hostile and poorly managed, with serious staffing issues within the Train Crew Assignment Centre and various tensions between employees leading to widespread conflict. … the evidence showed that other employees were equally unhappy and frustrated in this work environment.’

    The complainant was awarded damages of $20,000 for sexual harassment. This amount reflected the graphic and highly sexualised nature of the early graffiti incidents.

    Per L Behrendt (Judicial Member), M Gill and L Mooney (Non-Judicial Members)

    ‘There is no doubt that Ms Hunt genuinely felt that the atmosphere within the workplace was stressful and that she felt that she was unfairly targeted and targeted because she was a woman. However, … On the basis of the evidence presented to it, the Tribunal draws the conclusion that the oppressive and dysfunctional nature of the workplace was a result of the management, organisational and staffing issues that existed in the Train Crew Assignment Centre. In this environment, it is understandable that Ms Hunt felt that she was being targeted. However, the evidence showed that the environment was such that other staff members were equally unhappy and frustrated in the work environment’.

    Feminist commentary

    Neutral

    “… sexually permeated workplaces involving the display of pornographic imagery and the normalisation of obscene language and crude sexist jokes may ground a finding of sexual harassment. They are frequently masculinist workplaces where the female complainant may be the first woman. Such a case was Hunt in which the complainant was the first woman to be appointed as manager of the Train Crew Assignment Centre for the New South Wales Rail Corporation. The hostile sexually permeated work environment was exacerbated by poor management practices, which caused the complainant to go on stress leave and then resign.” (Thornton 2010, p 141)

The application of the Briginshaw test to evidence of sexual harassment

The common law recognises two standards of proof, ‘the balance of probabilities’ for civil matters and ‘beyond reasonable doubt’ for criminal matters. The ‘Briginshaw’ test refers to a standard of proof which may apply in cases involving serious civil matters, which was discussed by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336, (a family law case under the pre-1975, fault-based, matrimonial causes regime) where Justice Dixon stated that ‘when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence … It cannot be found as a result of a mere mechanical comparison of probabilities’. The Briginshaw test involves a requirement that the decision maker be ‘reasonably satisfied’ as to the existence of the facts in issue. This higher standard of proof for civil matters has been applied in sexual harassment cases, creating a more onerous threshold of proof and sometimes making it difficult for complainants to meet the evidentiary requirement.   Many cases of sexual harassment reflect this theme.

Feminist commentary

“Ever since the case of the lift-driver who accused the New South Wales Commissioner for Main Roads of sexually harassing her, Australian anti-discrimination tribunals have demanded that complainants prove their case to the ‘Briginshaw standard of proof’.

In fact, ‘standard’ is a misnomer as in the common law there are only two standards of proof: beyond a reasonable doubt for criminal cases and on the balance of probabilities for civil. As anti-discrimination complaints raise civil issues, the appropriate standard is the balance of probabilities, though what that term means is by no means clear. It is generally accepted that it will require ‘satisfaction on the evidence that the matter found to have occurred is more likely than not to have occurred’.” (de Plevitz 2003, p. 309).

  • Patterson v Hookey and Healesville Piquant Palate Pty Ltd t/a Piquante Palate Gourmet Deli [1996] HREOCA 35 | austlii
    Human Rights and Equal Opportunity Commission, Commissioner Rayner

    Summary

    The complainant alleged sexual harassment in the course of her work for the second respondent. The first respondent was a director of Piquante Palate Gourmet Deli. The complainant alleged that Mr Hookey had ‘made a pass’ at her at the conclusion of her shift. The Commissioner found that the complainant’s allegations were substantiated.

    In the course of her judgment, Commissioner Rayner referred to the test in Briginshaw v Briginshaw (1938) 60 CLR 336, which provided for a heightened standard of proof in light of the seriousness of the allegations made, the unlikelihood of their occurrence and the gravity of the consequences flowing from a positive finding. Previous sexual harassment cases had applied this test unquestioningly, making it more difficult for complainants to discharge their burden of proof. Commissioner Rayner explained why the Briginshaw test will not always be appropriate in sexual harassment cases:

     “The Briginshaw test was enunciated in a very different context. Proof of adultery determined whether or not a marriage was dissolved at all and entitlements to maintenance, property division and the custody of and access to children were determined on the basis of fault. The social climate was such that divorce, adultery and sexual intercourse between unmarried people were much less common or acknowledged, and had far graver social and economic consequences than today.

    “The Sex Discrimination Act was passed by the Commonwealth in 1984 in pursuance of its international obligations to prevent discrimination. There have been decades of law reform and social change since Briginshaw’s case, and we now have very different attitudes to sex, more egalitarian relationships between women and men, considerable change in the status of women and in the law and rules of evidence about the evidence of women and children concerning sexual matters.

    “The definition of ‘sexual harassment’ in the Sex Discrimination Act 1984 covers a very broad range of unwanted sexual conduct involving a sexual advance or request for sexual favours and a statement of a sexual nature to or in the presence of a person. The Briginshaw test is obviously inappropriate for all sexual harassment complaints.”

    Feminist commentary

    “Commissioner Rayner in Patterson v Hookey & Healesville Piquant Palate Pty Ltd (1996) recognised these dynamics. She had been invited by counsel for the respondent to see the complainant as a liar with a motive to fabricate, or at best, as inconsistent. Reference was made to the delay in reporting the matter to the police and Ms Patterson’s failure to confront the respondent with the allegations. However, in determining the credibility of the complainant, Rayner took the following into account: the fact that Ms Patterson ‘immediately and consistently complained that she had been indecently assaulted’, her ‘visibly distressed emotional state’ and that her failure to confront Mr Hookey

    … was entirely consistent with a desire to avoid Mr Hookey and a difficult situation. I consider that Ms Patterson thought her story would probably not be believed, given Mr Hookey’s relative status and the lack of any independent witness to his unexpected behaviour.” (Tyler and Easteal 1998, p.214)

    “There is a tension in the decision between the application of evidentiary rules and the reality of a woman’s experience with sexual harassment. On the one hand, Ms Patterson was able to satisfy the rules of credibility because she made immediate and consistent complaint to some members of her immediate family, and her emotional reaction fit the expected reaction of one who is sexually harassed despite the ‘unlikely’ nature of the allegations, she was constructed as credible. She had met at least some of the evidentiary hurdles placed in front of her and was forgiven for not making prompt and assertive complaint to the relevant agency because she was ‘young [and] not particularly well educated’.” (Tyler and Easteal 1998, p.214)

The test of ‘reasonableness’

Under the Sex Discrimination Act 1986 (Cth), the definition of sexual harassment requires that a ‘reasonable person’, having regard to all the circumstances, would have anticipated that the person who was harassed would be offended, humiliated or intimidated (s. 28A(1)). The reasonableness test is considered an objective test: what is reasonable will depend on the circumstances of a particular case; the age of the complainant, other subjective characteristics, the context in which the events occurred and the relationship between the parties may all be taken into account.

State and territory legislation also includes the notion of reasonableness. However, its application differs across jurisdictions. Queensland, New South Wales, Victoria and Tasmania take the same approach as the SDA: Anti-Discrimination Act 1991 (Qld) s 120; Anti-Discrimination Act 1977 (NSW) s 22A; Equal Opportunity Act 2010 (Vic) s 92(1); Anti-Discrimination Act 1998 (Tas) s 17(1). However, in South Australia and the Australian Capital Territory, the perspective of reasonableness is from the point of view of the complainant, that is, whether it is reasonable that she should feel offended or humiliated: Equal Opportunity Act 1984 (SA) s 87(9)(a); Discrimination Act 1991 (ACT) s 58(1). In Western Australia, sexual harassment is said to occur if the complainant has reasonable grounds for believing that she will be disadvantaged by objecting to the conduct: Equal Opportunity Act 1984 (WA) s 24(3)(a). The Northern Territory adopts a combination of approaches: sexual harassment is unlawful if it could reasonably be foreseen that the complainant would be offended, humiliated or intimidated or that the complainant reasonably believed that she would suffer a detriment if objections were made: Anti-Discrimination Act 1996 (NT) s 22(2)(e);(f). The application of the reasonableness test has a significant impact on the outcome of sexual harassment cases.

The ‘reasonable person’ (historically, the ‘reasonable man’) test in law has been subject to considerable feminist critique as a premise of legal ideology, where it is associated with the concept of objectivity in decision-making. In sexual harassment cases, what a decision maker, often male, considered reasonable may have a significant impact on the outcome of the case. In the context of sexual harassment, what may be considered reasonable will vary with respect to the gender, age, race and cultural background of the person concerned.

“The Australian cases where the reasonableness factor is linked to the notion of detriment have tended to be the least successfully resolved. In jurisdictions where the complainant does not have to show an apprehension of a detriment but rather that a reasonable person would have anticipated that she would be offended, humiliated or intimidated by the conduct, the relevant tribunals have had much less trouble in finding that unlawful sexual harassment has occurred. Indeed, once unwelcome sexual behaviour is found to have occurred in these jurisdictions, the issue of reasonableness is rarely in dispute and decision makers have little difficulty in finding that unlawful sexual harassment has been established. Moreover, in Queensland, the bar is set the lowest of all. In section 119 of the Anti-Discrimination Act 1991, a complainant needs to show, in addition to the unwelcome and sexual nature of the conduct, that the harasser intended to offend, humiliate or intimidate or, alternatively, that the circumstances were such that 'a reasonable person would have anticipated the possibility that the complainant would be offended, humiliated or intimidated by the conduct' (emphasis added). The reasonable foresight here need only be that it is possible, rather than likely, for the offence or humiliation to be felt by the complainant. The Queensland Act continues by providing in section 120 that in order to determine whether the circumstances were such that a reasonable person would have anticipated the possibility of offence, humiliation or intimidation occurring, the relevant tribunal can consider such factors as the sex, age, race, impairment, or any other circumstance of the complainant, as well as the relationship between the complainant and the harasser. This has been described by one commentator as, in effect, amounting to an objective/subjective test.” (Tahmindjis 2005, pp. 97-98)

  • Davidson v Murphy [1997] HREOCA 62 | austlii
    Human Rights and Equal Opportunity Commission, Commissioner Wilson

    Summary

    The complainant commenced employment at Toyworld. She argued that the conduct of the first respondent when they were co-workers in Toyworld involved the following:

    • on a regular basis he would brush up against her;
    • sometimes the respondent would stand behind her and the front of his body would touch her back and bottom;
    • at other times, when she was passing the respondent in the shop aisles, he would move towards her and turn side on to her so as to bring about some bodily contact as they passed each other;
    • he put his hand on her bottom and gave a light squeeze;
    • on some occasions, when she was vacuuming, the respondent would stand behind her and make unsolicited remarks such as "Gee, you move nice", "Have you ever noticed how your bum moves when you're vacuuming, I like it when it does that", and "You could do my vacuuming". On one occasion, he came up behind her and said "You don't even know I'm watching you";
    • on one occasion, she went to the office to pick up her bag as she had ended her shift. The respondent was sitting in a swivel chair. He patted his lap and said "Come and sit here".

    Commissioner Wilson found that the complainant's testimony was unreliable. He found the invitation extended by the respondent to the complainant to "sit on (his) lap" was of a sexual nature and unwelcome.  However, in regards to the next criteria ‘Would a reasonable person have perceived this behaviour as harassment within the meaning of the Act?’ he found “[i]n view of this familiarity and the ease with which the complainant, had she wished, could have voiced her disapproval of the respondent's conduct, but did not do so, I find that the reasonable person would not have anticipated that she was offended, humiliated or intimidated by his conduct. I note also that the complainant is a woman of 31 years, married with a child, with a strong personality; I find that the comments displayed a disposition on the part of the respondent to engage in sexual banter which, while in poor taste and sometimes crude, amounted to little more than pathetic attempts at humour. In my opinion, the complainant, had she wished, could readily have rejected the conduct as unacceptable”. (para 7.2.3)

    The complaint was not substantiated with the Commissioner concluding “I find that, without blaming her for it, with the passage of time the embarrassment and humiliation attributed to the respondent's conduct has become magnified out of all proportion to the reality.” (para 7.2.3)

    Feminist commentary

    Negative

    “In Davidson v Murphy, incidents were found to have occurred which included physical contact while working and comments by an employer to an employee such as ‘What colour are your knickers?’, ‘You can sit on my lap’ and ‘Have you ever noticed how your bum moves when you're vacuuming, I like it when it does that’. However, in deciding that the reasonableness test was not satisfied, the Commission considered the familiar relationship between the complainant and the respondent and the perceived ease with which she could have complained but did not do so. The Commission also found that because the complainant was 31 years old, married with a child and had a strong personality, a reasonable person would not consider her to be offended … Davidson v Murphy clearly illustrate[s] the proposition that despite progress being made for women with the introduction of s 28A of the SDA, unnecessary difficulties are still faced by complainants in satisfying the current reasonable person test.” (Pace 2003, p.203)

  • Smith v Hehir and Financial Advisors Aust Pty Ltd [2001] QADT 11 | austlii
    Queensland Anti-Discrimination Tribunal, Member Tahmindjis

    Summary

    The complainant was employed by the second respondent as a tele-marketer. The first respondent, Mr Hehir, was the Company Manager. The complainant alleged the first respondent sexually harassed her by the following acts:

    • after an unpleasant telephone conversation with a potential client, Mr Hehir massaged the complainant's shoulders (and also massaged the shoulders of the other telemarketer present at the time);
    • after a phone call from her fiancé (now her husband) the complainant became upset because she was being evicted from her accommodation and, she said Mr Hehir touched her in a manner which was unwelcome to her;
    • the complainant said Mr Hehir again massaged her, made various offensive sexual remarks to her and touched her in an unwelcome manner, including trying to kiss her.

    The Tribunal found that the complainant had been sexually harassed by the respondent and commented that “[t]he context here is that the action was not one between friends of long standing: it was an action by a middle-aged male employer to a young female employee who had only worked in the office for two weeks. It occurred not long after another incident when distress due to a phone call had been used as an excuse to massage the complainant. The action was more than just a touch, such as placing a comforting hand on the distressed person's arm or shoulder: it was more in the form of a cuddle. In my opinion, in this instance in the overall context, a reasonable person should have anticipated that there was the possibility that Ms Smith would have found this action offensive, humiliating or intimidating. It should be pointed out that the Act in this regard is quite specific: it provides that "the reasonable person would have anticipated the possibility that the other person would be offended … (s.119(f), emphasis added). In my view, in these circumstances, a reasonable person would have anticipated that possibility.” (para 3.2)

    Per Member Tahmindjis

    “To console a person it is not necessary that one touches them, although this usually will occur and usually it will not amount to sexual harassment. I do not consider that Mr Hehir intended to sexually harass Ms Smith on this occasion. However, the issue becomes whether a reasonable person taking all the circumstances into account (including the unwelcome rubbing on or after 8 February) would have anticipated the possibility that Ms Smith would be offended, humiliated or intimidated by this action. In my view, it is essential that all employers and employees appreciate both the unlawful and the unacceptable nature of sexual harassment, especially as there remains an unacceptably high incidence of sexual harassment in the workplace, where some men apparently consider female employees to be ‘fair game’.” (para 3.2)

     “Nor does it necessarily matter what the complainant thought or felt at the time, as some instances of sexual harassment may leave the victim so stunned that she feels nothing. The Act requires us to consider what an independent and reasonable third party would have thought the complainant could feel given the overall context.” (para 3.2)

    Literature cited by Member Tahmindjis

    • Graycar, R & Morgan, J 1990 The Hidden Gender of Law, Federation Press;
    • Stein, L 1999 Sexual Harassment in America: A Documentary History, Greenwood Press;
    • Nancy, E 1990 ‘Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law’ Yale Law Journal, vol.99, at 1777;
    • MacKinnon, C 1979 Sexual Harassment of Working Women, Yale University Press;
    • MacKinnon, C 1987 Feminism Unmodified: Discourses on Life and Law, Harvard University Press.

    Feminist commentary

    “In almost every Queensland case to date, the Queensland Anti-Discrimination Tribunal (QADT), after making detailed findings that the alleged incidents of sexual harassment did in fact occur, had no difficulty in finding that the test was satisfied i.e. that a reasonable person would, in all the circumstances, have anticipated the possibility that the particular complainant would be offended, humiliated or intimidated by the conduct. In the majority of decisions in fact, only bare comments have been made regarding satisfaction of the test. The recent decision of Smith v Hehir and Anor is the exception to the rule in that it contains some discussion on how the reasonableness test should be applied under s 119 of the QADA.” (Pace 2003, pp.205-206)

    “The decision in Smith v Hehir and Anor illustrates the high point of the application of the Queensland reasonableness test and represents a significant shift forward from the difficulties experienced by complainants in other jurisdictions. The incidents complained of in Smith could be described as 'low level sexual harassment and might not have constituted sexual harassment under legislative tests in other jurisdictions. Due to Queensland's broad test and the macro approach taken to its application by the QADT, the incidents were considered sufficient to satisfy the Queensland test.”  (Pace 2003, p.207)

    “In holding that the second incident satisfied the reasonableness test, Member Tahmindjis looked at the overall context in which all of the incidents occurred, including the age difference between the parties and their relationship as employer/employee. Since the perceptions of men and women may differ in relation to what behaviour does or does not constitute sexual harassment, what the respondent thought about his conduct was irrelevant to the determination of reasonableness. Member Tahmindjis also noted that sexual harassment potentially leaves its victims so stunned that they feel nothing and therefore what the complainant thought or felt at the time of the events was not necessarily relevant either. "' (Pace 2003, p.207)

  • Johanson v Michael Blackledge Meats [2001] FMCA 6 | austlii
    Federal Magistrates Court of Australia, Driver FM

    Summary

    The applicant’s complaint was that she was sexually harassed when she purchased a bone from Michael Blackledge Meats, a butcher shop owned and operated by the respondent. The bone was shaped to resemble a large penis. The applicant said that she was shocked and sickened when she saw the bone. She alleged that she complained to the manager of the butcher's shop, but was laughed at. She reported the incident to the police.

    The Court found that the sale of an ordinary dog bone was not conduct of a sexual nature. However, the provision of a dog bone shaped so as to resemble a human penis was conduct of a sexual nature. The Court held that the test is objective and it does not matter whether the perpetrator intended to act in a sexual way or was aware that he or she was acting in a sexual way. The type of conduct that has been held to be conduct of a sexual nature includes exposure to sexually explicit material and sexually suggestive jokes. The Court was satisfied that a reasonable person would have anticipated that the applicant would feel offended, humiliated or intimidated as a result of receiving the bone.

    The Court held the applicant had been the victim of unlawful sexual harassment and that the respondents are vicariously liable for that unlawful harassment.

    Commentary

    “The issue of reasonableness under s 28A requires an objective assessment as to whether a hypothetical, reasonable bystander would fairly conclude that the person harassed would be offended, humiliated or intimidated by the unwelcome sexual conduct. Reasonableness is therefore addressed by reference to the harasser's conduct rather than the complainant's reaction to the conduct [see for example, Johanson v Michael Blackledge Meats].” (Pace 2003, p.199)

  • Hughes v Narrabri Bowling Motel Limited [2012] NSWADT 161 | austlii
    Administrative Decisions Tribunal of New South Wales, Members Furness SC, Lowe & Nasir

    Summary

    The applicant was employed as a casual housemaid at the Narrabri Bowling Motor Inn. Mr and Mrs Welsh, the second and third respondents, were the managers of the motel. The applicant submitted that she had been subject to three acts of sexual harassment by Mr Welsh. Further to this she complained that after making the complaint of sexual harassment against Mr Welsh she was victimised by Mrs Welsh by being given extra work as a housemaid and then given no work at all.

    The applicant’s job as a housemaid included stacking linen trolleys and stacking cleaning trolleys with cleaning products and replacement items for the rooms. In relation to the first two sexual harassment claims, the applicant said that prior to August 2010, Mr Welsh had brushed up against her on a few occasions but that she had thought nothing of it and ignored it as she was not sure if his actions were intentional. In relation to the third sexual harassment claim, the applicant said that in about August 2010 when she was getting cups and saucers off the trolley which was located in the carpark, Mr Welsh approached her and said "I am here to get between your legs".

    The Tribunal found that a reasonable person, having regard to all the circumstances would have anticipated that the applicant would have been offended, humiliated or intimidated by those words. Mr Welsh was in a position of power in relation to the applicant, in that he and his wife had the discretion to offer or not offer her work. The Tribunal found the complaint of sexual harassment arising from the incident at the trolley was substantiated because the language used by Mr Welsh is that of a request for sexual favours or a sexual advance or conduct of a sexual nature and that it was unwelcome.  However, the two accounts of sexual harassment by Mr Welsh between January and August 2010 were dismissed. The complaint of victimisation against Mrs Welsh was dismissed. Two complaints of vicarious liability by the first respondent were also dismissed.

Intersectionality

In some cases, women experience multiple forms of discrimination, such as sexual harassment, sex discrimination and race discrimination. This is often referred to as intersectional discrimination. Feminist theories of intersectionality affirm that it is not possible to understand women’s experience of oppression on separate grounds of, for example, race and sex, but that it is at the interface of these identities that oppression often occurs. Discrimination law, however, is structured to facilitate complaints on individual grounds. The following cases demonstrate the operation of intersectional discrimination.

  • Djokic v Sinclair and Anor (1994) EOC 92-643| austlii
    Human Rights and Equal Opportunity Commission, Commissioner Wilson

    Summary

    The complainant, Mrs Djokic, was employed as a meat packer by the second respondent in a meatworks. The complainant lodged a complaint with the Human Rights and Equal Opportunity Commission against the meatworks and the first respondent, Mr Sinclair, a foreman who supervised Mrs Djokic in the boning room. Mrs Djokic alleged that she was subjected to various forms of sex and race discrimination in the workplace resulting eventually in the termination of her employment. The complainant described a number of incidents at the meatworks which she cited as examples of the discrimination she suffered. The incidents consisted of intertwined elements of race and sex discrimination, including allegations of sexual harassment.

    The complainant alleged that the first respondent would refer to her on a regular basis as a "fucking wog bitch" and a "stupid wog bitch" when she commenced working on his chain. Mrs Djokic also alleged that Mr Sinclair would touch her in a sexual way, not accidentally, when he walked past her. She said that he would walk past her and pull her brassiere strap so that it would snap into her back and sometimes would touch her trousers. None of the witnesses were able to corroborate the complainant's evidence. The first respondent denied touching her in this manner or in any sexual way. Other complaints included that the first respondent was the source of rumours circulating around the meatworks that she was sleeping with a number of men in the meatworks. On one occasion when she was sitting with a male colleague, Mr Dalton, Mr Sinclair walked past them and said to Mr Dalton "You'll be right tonight mate" whilst making an obscene hand gesture indicating coitus.

    The complainant was dismissed in 1991 following an exchange with the first respondent where she was asked, but refused, to work overtime. The complainant alleged that Mr Sinclair pressed her for a reason why she wasn't available to do overtime. When she refused to tell him he allegedly said to her "Fuck you woman! I'll bring you to your knees!" She explained that a heated argument ensued in which she swore at Mr Sinclair. A meeting was held and she was dismissed.

    President Wilson stated that: ‘This is a complex case, with a number of distinct allegations of unlawful discrimination … I am satisfied that, from the perspective of the complainant, the general atmosphere in the boning room, where the complainant worked as a packer, was deplorable. A great deal of unpleasantness was directed to her.’ President Wilson did not accept that the bra strap and touching of trousers incidents could be corroborated, due to the layout of the packing room. Otherwise, he found that the respondent’s general demeanour towards the complainant over a sustained period, described by the complainant as "pushing her", reflected a hostility, based on her sex, that was oppressive to her and such as to constitute sexual harassment. President Wilson also accepted that the conduct surrounding the complainant’s termination amounted to sexual harassment and stated that he had ‘no hesitation in characterising such behaviour as sexual harassment. It was a serious abuse of power.’

    Per President Wilson

    ‘The evidence, not confined to that of the complainant, coupled with my observations of the witnesses, inclines me to view the meatworks at the material time as a union-dominated male world which, with a few exceptions, tolerated women only so long as they knew their place … The widespread enlightenment of recent times in terms of the dignity, equality and worth of all human beings, expressed in the workplace in the principles of fairness and equal opportunity, had not yet penetrated this establishment. The complainant entered this place as a strong, courageous woman wanting to work. She left it, less than 2 1/2 years later, a women broken in health though not yet in spirit, a victim of pettiness and sexist and racist attitudes. In a sense, the first respondent was also a victim of the system because he was a product of it.’

    Feminist commentary

    Negative

    “… in Djokic a female packer at a meatworks complained of race discrimination, sex discrimination and sexual harassment. She had been called a 'stupid wog bitch' by her co-workers (particularly after she complained that some workers took unauthorised toilet breaks during production times) and was sexually harassed by her supervisor who, she alleged, touched her in a sexual way when he walked past, started rumours that she was sleeping with a number of the male workers, and made obscene hand gestures indicating sexual intercourse when he saw her talking to a male colleague. She was eventually dismissed after an argument with respect to working overtime. The federal Human Rights and Equal Opportunity Commission found that the dismissal was the final episode in a drama of sexual and racist victimisation … While the Commission conceded that an abuse of power could be characterised as sexual harassment, it had difficulty finding that the complainant had discharged her burden of proof with respect to all of her allegations of sexual harassment (especially with respect to unwelcome touching in a narrow work space). While it did find that, overall, the sustained hostility and oppression constituted sexual harassment, the case illustrates the difficulty Australian law encounters when dealing with circumstances which cumulatively amount to harassment but which separately might not do so.” (Tahmindjis 2005, p.95)

  • Horman v Distribution Group [2001] FMCA 52 | austlii
    Federal Magistrates Court of Australia, Raphael FM

    Summary

    The applicant worked for the respondent company at Repco Auto Parts as a spare parts interpreter. She claims that during this time she was subjected to sexual discrimination in the form of unacceptable and inappropriate comments from her fellow workers, some physical approaches such as texta writing on her body, and touching her buttocks.  During the course of her employment, the applicant became pregnant. She claims that she was subjected to discrimination because of her pregnancy, consisting of inappropriate comments made by other workers. She also claimed that she was dismissed from Repco because she was pregnant. The applicant also complained of racial discrimination through the use of words such as "wog" being written on time sheets and being referred to as a "witch".

    Other acts of sexual harassment included:

    • Mr Chamberlin and Mr McDougall said to the applicant" "Show me your tits."
    • Mr Chamberlin and Mr McDougall approached the applicant and pulled back her bra strap and let it go.
    • When the applicant was pregnant Mr Chamberlin and Mr Maulguet asked the applicant "Are you more sexually active since being pregnant, my wife is particularly with oral sex."

    The Court found that the decision to make the applicant redundant came about as part of a general review of staffing requirements at Repco, and that there was at the time a genuine downsizing going on.

    The Court upheld three of her five complaints of sexual harassment, sex discrimination, and race discrimination against the applicant. The applicant appealed against the Court’s rejection of the other complaints in Horman v Distribution Group Ltd [2002] FCA 219, but her appeal was dismissed.

    Feminist commentary

    Neutral

    “In the Federal Magistrates Court during the period from April 2000 to September 2004, there were 32 hearings in cases involving sex discrimination, 42 in disability cases and 24 in race cases, including procedural as well as substantive hearings. In only three cases was a substantive claim based on race upheld. Two of these were racial vilification claims. In Horman v Distribution Group, a vilification claim relating to calling the applicant ‘wog’ at work was upheld, although most emphasis in the case was on sex discrimination and sexual harassment.” (Gaze 2005B)

Sexual harassment of men

Overwhelmingly, sexual harassment is perpetrated by men against women and the majority of complaints are by women. However, the legislation is non-gender specific and it is possible for men to make complaints of sexual harassment. Workplaces are often highly masculinist and resistant to men who do not fit the normative model of heterosexual masculinity. This may be performed as sexual harassment of men, sometimes on the grounds of presumed homosexuality.

  • Daniels v Hunter Water Board (1994) EOC 92-626
    New South Wales Equal Opportunity Tribunal, Members Bitel, Tracey and MacDonald

    Summary

    Mr Daniels alleged that he was harassed and discriminated against by the Respondent over a number of years on the grounds of his presumed homosexuality, even though he did not identify himself as being homosexual. The alleged conduct began after Mr Daniels adopted a ‘trendy’ haircut and an earring in his left ear. He also took up jazz ballet, drama and modelling. At this time, his coworkers started to call him a ‘weirdo’ and to allege that he must be ‘gay’. After Mr Daniels removed a poster of a naked woman from his workplace because it had offended a female colleague, the frequency of derogatory comments made towards him, on the basis of him being ‘gay’, increased. Mr Daniels’ claim on the basis of his presumed homosexuality was upheld.

    Feminist commentary

    Positive

    “Men who resist the dominant norms of the workplace may also be the targets of sexualised harassment by other men. These non-dominant men are not necessarily gay. In Daniels v Hunter Water Board, the complainant, an electrician, was subjected to a campaign of harassment because his co-workers thought that he was gay. In addition to taking up jazz ballet, drama classes and modelling, he adopted a 'trendy' haircut and wore an earring. He was ridiculed, and taunted with epithets such as 'Weirdo', 'Poofter' and 'Gay Boy'. He was also spat upon and physically assaulted. Within the masculinist culture of the workplace, the co-workers made it known that the complainant was 'not one of the boys'. In pursuing a remedy, the complainant was able to rely successfully upon a provision in the NSW Act proscribing discrimination on the ground of 'perceived homosexuality' … but for his sex, the complainant would not have been harassed. In other words, had Daniels been a woman who took up jazz ballet, drama and modelling, his conduct would not have given rise to hostile environment sexual harassment in the workplace. The argument is a provocative one, as it confounds the biological binarism of sex that underpins anti-discrimination law …. Cases such as Daniels underscore the animosity towards the feminine in masculinist workplace cultures, no less than in Hopper, McKenna and Williams. The aggressive conduct often found in such cases clearly has more to do with hate than desire. They illustrate how masculinist cultures of homosociality and heterosexism are effectively sustained.” (Thornton 2002, p.433)

  • Lulham v Shanahan, Watkins Steel & Ors [2003] QADT 11 | austlii
    Anti-Discrimination Tribunal of Queensland, Member Savage QC

    Summary

    The complainant had been a boiler maker at Watkins Steel and alleged he had been exposed to sexual harassment by work colleagues including Mr Mitchell and Mr Shanahan, the respondents in this case, and another man (against whom the complaint was settled during the course of the proceedings). He sought to hold Watkins Steel vicariously liable for this harassment. The complainant alleged that the two men had made remarks that he was a paedophile and that he frequented gay bars. Mr Mitchell had described him on occasions in front of work colleagues as a “gerbil,” which was agreed to have a sexual connotation in relation to bestiality. The Tribunal found that these remarks constituted sexual harassment due to their implications that the complainant was involved in proscribed sexual acts.

    A defence was raised in respect of causation as the respondent claimed that the complainant’s past sexual abuse rather than the harassment by the defendants was the true cause of his departure from work and depressive illness. The respondent also sought to exempt itself from vicarious liability on the basis that it had taken reasonable steps to prevent the sexual harassment. Member Savage found that it was the harassment that had been the cause of the defendant’s psychiatric injuries. The tribunal found that the steps taken by Watkins Steel to exempt itself from liability were insufficient.

    Per Savage QC

    “It is a defence to such a liability if Watkins Steel demonstrates to me on the balance of probabilities that it took reasonable steps to prevent the worker contravening the Act. Here it took no let alone any reasonable steps to prevent any such contravention. The submission made by the respondent’s counsel that s.133(2) is satisfied in the instant case merely by the management of Watkins Steel maintaining an “open door” complaints policy and by doing nothing otherwise is unmaintainable. […] It should also be noted that at the time these events occurred the management of Watkins Steel were not aware that sexual harassment was legally proscribed conduct and had no policy to identify and prevent such harassment occurring other than the general “open door” policy. Had management acted consistent with the practice now suggested this matter may not have arisen.”

    “I have concluded on the balance of probabilities that it was the misconduct to which the complainant was exposed at his workplace that led to the onset of depressive illness. Had the complainant not been harassed as I have found, the complainant would have been able to continue in his employment and continue to deal with the problems he had in confronting his parents concerning his past sexual abuse by others even if that had some consequence for his mood at relevant times. He would not have been (as I find he was) forced to leave his employment.”

Non-employment cases

Most complaints of sexual harassment concern harassment in the context of employment, perpetrated by employers or co-workers. However, under the amended legislation introduced in 1992, it became possible to make a complaint of sexual harassment in the context of a range of public activities, including educational institutions, in the provision of goods and services, in clubs and in the provision of accommodation. The following cases demonstate this theme.

  • Brian Joseph Chambers v James Cook University of North Queensland [1995] IRCA 459 | austlii
    Industrial Relations Court of Australia, Spender J

    Summary

    Dr Chambers had been employed by James Cook University as a lecturer in theatre. In about November 1993, allegations of sexual harassment were made against him by two of his former students. Complaintant A was aged in her forties and Complainant B in her fifties at a time when Dr Chambers was also in his early fifties. A Sexual Harassment Grievance Committee of the University considered the allegations and reported to the Vice-Chancellor of the University who then wrote to Dr Chambers setting out the allegations and advising him of his suspension from duties, with pay, and exclusion from the University.

    It was alleged that Dr Chambers had improperly pressured Complainant A to engage in sexual intercourse with him (and had engaged in sexual intercourse with her) on two separate occasions in April 1992 and had since that time, applied further pressure and/or harassment on her to engage in further acts of sexual intercourse.

    The second complainant said that during the 1993 academic year, the respondent had taken ‘inappropriate physical liberties and made verbal and physical sexual approaches’ to her and later in that year had improperly pressured her to engage in sexual intercourse with him on two occasions. Complainant B alleged that the acts of sexual intercourse were non-consensual and had involved Dr Chambers using force in the procurement and engagement of the intercourse, violent sexual assault and the use of force in restraining her from leaving.

    Dr Chambers denied the allegations of sexual harassment and contended that the acts of intercourse he had engaged in with the complainants had been fully consensual. The respondent’s evidence was accepted by Spender J. He dismissed the other allegations and found that the incidents were ‘occasions on which middle aged persons, each in their own way suffering matrimonial difficulties, sought solace in a sexual relationship.’

    The University submitted on appeal that this admitted consensual sexual intercourse could form an alternative basis for the termination. However, because the termination had been entirely based on a complaint of sexual harassment, a post-facto reason could not be introduced. Spender J ultimately found that the termination of Dr Chambers had been invalid.

    Justice Spender ordered:

    1. that the respondent be appointed to a position ‘in the University on terms and conditions no less favourable than those on which he was employed immediately before the termination’;
    2. that James Cook University treat Dr Chambers as having been continuously employed by it from the date of termination to the date of reinstatement; and
    3. that it pay him the remuneration lost due to his termination.

    Per Spender J

    “In the circumstances of the present case, if it be the case that Dr Chambers was dismissed for the reason that he had engaged in serious misconduct within the terms of the award governing his employment, that serious misconduct being sexual harassment of one or another of his students, his dismissal can not now be justified on the basis of, absent sexual harassment, non-exploitive and voluntary intercourse had occurred between Dr Chambers and one or other of those students.  In my opinion, if the question of voluntary non-explotive [sic] intercourse between a lecturer and a student was not asserted as a valid basis for his dismissal (and in respect of which he was not given an opportunity to defend himself) then it cannot, subsequent to the dismissal, be relied on as the 'valid reason" for that dismissal.”

    “In the course of submissions it was suggested by Dr Jessup QC on behalf of the University that even voluntarily consensual intercourse between a lecturer and a student amounted to serious misconduct justifying termination. That was not the case that was alleged against Dr Chambers; it was not the case he was called upon to meet as the Award calls for; and, having regard to the provisions of the Act requiring an opportunity to be given to an employee to be heard before his/her employment is terminated, cannot constitute a valid reason for the termination of Dr Chambers's employment.”

  • Evans v Lee & Anor (1996) EOC 92-822 | austlii
    Human Rights and Equal Opportunity Commission, Commissioner Jones

    Summary

    The complainant, a businesswoman who ran a pizza restaurant on Hamilton Island, had an account with the second respondent, the Commonwealth Bank. Due to the 24-hour operation of the restaurant, the applicant often had appointments with bank employees outside of business hours. On such an occasion, she invited the first respondent, a manager for the second respondent, to Hamilton Island to discuss such matters. The first respondent over the course of an evening insisted on massaging the applicant's neck, suggested that she become a ‘madam’, and then undressed and proposed intercourse.

    The first respondent continued to call on the applicant uninvited and suggest that she pose for nude photographs. The applicant alleged that her refusal to do so led to an increase in reporting requirements imposed on her account, a refusal to grant an extension on payment of an overdraft and the granting of a loan that only partly covered that which the applicant needed.

    The second respondent sought to avoid vicarious liability by arguing that all reasonable steps had been taken, but it was found that at this branch there had been a failure to follow those company policies without any resulting penalty.

    The HREOC accepted that the complainant had been discriminated against on the basis of her sex and sexual harassment was found in respect of the only incident which had occurred after the commencement of s 22A. Vicarious liability attached and both respondents were ordered to apologise to the complaint and made liable for the payment of $8,000 damages.

    Commentary

    “[I]n Evans v Lee Mrs Evans sought to hold the Commonwealth Bank vicariously liable for acts of sexual harassment and discrimination by one of its branch managers (Mr Lee) in the Whitsundays. The bank showed that it had an extensive policy aimed at preventing discrimination and particularly sexual harassment which included distribution of a code of conduct, a video and circular letters. The bank also showed that it required branch managers to discuss sexual harassment with their staff on a half yearly basis and that failure to do so was supposed to be brought up in regular audits of managers' performance. However the HREOC Inquiry Commissioner also accepted evidence that Mr Lee had never fulfilled his responsibilities by initiating discussion about sexual harassment at his branch; nor had any sexual harassment training been conducted at the branch and only one session on the code of conduct some time before. The Commissioner held that the bank was vicariously liable because it had failed in its duty to `ensure that its policies are communicated effectively to its executive officers, and that they accept the responsibility for promulgating the policies and for advising of the remedial action when breached'. Furthermore, the policy was only directed at preventing harassment of staff, and did not expressly cover customers and other members of the public.” (Parker 1999, 167)

Vicarious liability

Sexual harassment is sometimes perpetrated by workers against a colleague. In these cases, an employer can be found to be legally responsible for acts of discrimination or harassment that occur in the workplace or in connection with a person’s employment, referred to as vicarious liability. In order to avoid liability, employers need to demonstrate that they have taken all reasonable steps to prevent harassment from occurring and that they have responded appropriately to resolve incidents of harassment. A number of cases demonstrate this theme.

  • Moore v Brown and The Black Community Housing Service (Qld) Ltd [1995] QADT 6 | austlii
    Anti-Discrimination Tribunal of Queensland, Member Atkinson

    The complainant, Ms Moore, was employed by the Black Community Housing Service for approximately seven years as the administrator. Mr Brown was a director of the company and its treasurer. During telephone calls with the complainant, he would tell her that he was in love with her or that he wanted her "junoo" (an Aboriginal term for vagina) and that they could make beautiful love. Frequently at work meetings he would ask her when he could sleep with her. Mr Brown gave various gifts to the complainant which she regarded as obscene and offensive. One was a wind-up toy of what appears to be a man in a black coat with an erect penis which rises as the figure walks when it is wound-up. The other was a small statue of a couple engaged in oral sex.

    The Tribunal found that Mr Brown was acting as an agent of the company. As there was no evidence of any steps taken by the housing service to prevent Mr Brown from acting in the way in which he did, the defence given by s. 133(2) was not made out. The company was vicariously liable for his actions. At no stage did the housing services have an articulated policy on sexual harassment. There were no documents on the policy and no seminars nor any education given to staff that a policy was in existence. This was the case even though there had been an earlier complaint made by another woman against another man who worked there.

    Commentary

    Positive

    “As Moore v Brown (a decision of the Queensland Anti-Discrimination Tribunal) shows, courts and tribunals will also accept evidence that an employer had no articulated policy on sexual harassment to hold them vicariously liable. The cases show that the tribunals will not be satisfied with evidence that there was a paper policy, but will examine both the terms of any policy and whether it was effectively implemented in deciding whether reasonable precautions have been taken.” (Parker 1999)

  • McKenna v State of Victoria [1998] VADT 83 | austlii
    Victorian Anti-Discrimination Tribunal, Members Wolters, Lanteri, McCallum

    Summary

    The proceedings concerned two complaints that were heard together. The first complaint was of discrimination on the grounds of sex and marital status against the first respondent. The second complaint was of sexual harassment and discrimination on the grounds of sex against the second respondent engaged in by him in the course of employment by the first respondent. The complainant was a senior constable with Victoria Police. She transferred stations and found the treatment of women very different in the new police station. Men would constantly tell demeaning sexual jokes in her presence and would make “snide comments all over the place on a day to day basis about women and their role”, saying that a woman's place was in the home, the bedroom or the kitchen.

    Asked whether women at the station could not avoid hearing the jokes, the complainant said that the jokes were not said when certain women were there and they were not said when women were there who were married to men at the station. The Tribunal was satisfied that the station provided a work environment where coarse language was common and that obscenities would have been part of that environment. The complainant said the second respondent, who was the officer in charge of the nightshift, “grabbed me around the waist and pulled me on to his lap, and then he put his arms around my chest and hugged me, and I broke free of his grasp virtually straight away, stood up and pushed him backwards off the chair and he and the chair went over backwards on to the floor.”

    The Tribunal was satisfied that no reasonable precautions were taken by the first respondent to prevent employees contravening the Act. The Tribunal found in respect to a number of the allegations that the first respondent was vicariously liable for the actions of its relevant employees.

    Commentary

    “A major reason why Ms McKenna felt reluctant to make a complaint was the culture in the police force that discouraged the ‘dobbing’ in of colleagues. Her concerns were well founded in light of the victimisation and further harm that flowed from her subsequent complaint to an external body. Such a culture should be challenged from the top down. It is submitted that imposing a positive duty on employers to guard against sexual harassment would be a more effective way to facilitate this cultural change than through the current legislative arrangements. At least two reasons can be given. First, imposition of a duty is aimed at prevention of the problem, rather than dealing with complaints after the fact. Second, the onus is on those in power to make sure that harassment is not taking place, or that it is dealt with promptly if it does occur.” (Mackay 2009, pp. 214-215)

  • Shiels v James & Lipman Pty Ltd [2000] FMCA 2 | austlii
    Federal Magistrates’ Court of Australia, Raphael FM

    Summary

    The complainant, Ms Shiels, had obtained work through an employment agency as a temporary clerical assistant in a site office operated by Lipmans, the second respondent, on a construction site. Mr James, the first respondent, was the site manager and the second most senior employee on the site. The plaintiff was the only female worker on the site.

    The plaintiff alleged that Mr James began by asking questions about the plaintiff’s relationship with another site worker with whom she shared a house and her social activities. The complainant said that the first respondent then daily made comments about the plaintiff’s underwear and other clothing, continuing for three months. He then began to ask whether the plaintiff had ‘got any at the weekend’ and other similar inquiries on a regular basis. The plaintiff said that he had engaged in ‘extremely bad’ swearing and inappropriate touching of her breasts, shoulders and legs while the plaintiff was using the photocopier, at least two or three times a week. He also looked up her dress while underneath her desk and had a practice of flicking rubber bands at her, so that he could watch her reaction with other men and laugh.

    The incidents were easily identified as sexual harassment. The second respondent, Lipmans, sought to escape vicarious liability by arguing that it had taken all reasonable steps to prevent the first respondent from engaging in sexual harassment by bringing evidence in respect of their anti-discrimination policy. However, the court found that the steps taken had not been sufficient. Both respondents were held liable and ordered to pay damages.

    Per Raphael FM:

    “The Court finds that the Second Respondent is unable to bring itself within the exception found in sub-section 2 to s.106 SDA for the following reasons:

    1. That the Anti-Discrimination Policy, as good as it was, was not delivered to the Applicant or indeed any of the workers on the site until 28 November 1998 some six weeks after the Applicant had commenced work and some four weeks after the allegations of sexual harassment which the Applicant experienced from Mr James commenced.
    2. There was no explanation of an oral nature to any of the work people about the policy nor was its existence specifically drawn to any person's attention.
    3. The Applicant could have expected that her interests would be looked after in a more direct manner in the particular circumstances in which she found herself, a lone female on a building site.
    4. The persons who were nominated as contacts in the case of suspected sexual harassment were persons who were based in Sydney with whom she had little or no contact on an ordinary day-to-day basis.
    5. There is some evidence that Ms Shiels complained to Mr James about the incidents, but he, although a senior employee of the company, did not desist.”
  • D v Berkeley Challenge Pty Ltd [2001] NSWADT 92
    Administrative Decisions Tribunal of New South Wales, A Britton (Judicial Member), L Nemeth de Bikal and J Strickland (Lay Members)

    Summary

    The complainant was employed by the respondent (Plarinos) as a cleaner at a school. She alleged that she was sexually attacked by another employee of the respondent (Herrera) while at work. The complainant argued that her later transfer to another school as a relief cleaner and subsequent dismissal disadvantaged her and was an act of victimisation by the respondent. The complainant argued that the acts included Herrera shouting, swearing and threatening the complainant. On the last two occasions, he had threatened her and attacked her with a dildo or vibrator he had pushed in her face, although on later inspection this could not be found. The complainant went to the police and was interviewed after the third incident on 29 June 1998. The Tribunal found on the basis of the complainant's evidence that Herrera's conduct constituted sexual harassment within the meaning of sec 22A of the Act.

    The Tribunal took the view that Plarinos' failure to take action after hearing of the complainant's concerns amounted to inactivity and indifference. Although Plarinos separated the two employees, the evidence also revealed that the complainant was effectively demoted and placed on probation. The Tribunal also decided that it was not enough for the respondent, which sought to rely on the defence provided by s53(3) of the Act, to merely show that it had a policy discouraging sexual harassment. The policy should have been implemented properly in order for the defence to be successfully used. The tribunal awarded the complainant $11,800 for economic loss and general damages for hurt, humiliation and injury to her feelings of $15,000.

    In considering the complainant’s evidence, the Tribunal commented that there was little supporting evidence to support Mrs D’s complaint, but that it does not automatically follow that it must reject her evidence concerning the alleged incidents on the basis that it was uncorroborated. They also noted in relation to an alleged incident of the complainant being chased by a ‘dark man’ prior to police arriving: ‘The fact that she asserts that this happened does not necessarily prove that it did, but it is not so inherently implausible that one would dismiss the assertion out of hand.  Rather, it is the reverse.  Unless we were satisfied that Mrs D is a determined liar, there is no particular reason to reject that story. Even if we were suspicious of her, it would be wrong and imprudent to reject the story outright. At worst we could only find that the assertion was unsubstantiated’.

    Moreover, in relation to the complainant’s report to the police, the Tribunal considered: ‘We have before us no reliable evidence as to why the police did not prosecute.  It may be, as suggested by Mr Diamond, that the police did not accept the veracity of Mrs D’s claim; it may be, that there was simply insufficient evidence to obtain a conviction applying the criminal standard of proof; it may be that the police investigation (of which we have no details) was inadequate. We simply do not know. At best, such evidence is a form of opinion evidence, offered on what basis we do not know, by whom we do not know, taking into account what evidence and criteria we do not know. The failure of the police to proceed to charge Mr Herrera, in our view, is irrelevant in these proceedings and can carry no weight at all in the assessment of Mrs D’s credibility’.

    Feminist commentary

    ‘Sexual harassment as heterosex is rife against women in subordinate positions where a male boss exercises ‘power over’ them. A common scenario is that of a small business enterprise, such as a shop or restaurant, in which a young woman, often in her first job, is employed as a shop assistant, waiter, secretary or cleaner. The manager or sole proprietor is typically a middle-aged man who assumes that an unsophisticated young woman is fair game. He regards her personhood and autonomy as inferior to his and, in hiring her labour, he seems to assume that he can assert a right over her body. When she exercises her free will and rejects him, she may be victimised and downgraded. Of course, respondents in such cases know that they do not have possessory rights in the person of the employee and, if challenged, will endeavour to rationalise the target’s departure in terms of incompetence. Nevertheless, the respondents in such cases are frequently serial harassers.’ (Thornton 2002, pp.427-428)

  • McAlister v SEQ Aboriginal Corporation and Anor [2002] FMCA 109 | austlii
    Federal Magistrates Court of Australia, Rimmer FM

    Summary

    The applicant was sexually discriminated against and sexually harassed by Mr Lamb whilst he was providing her with legal services as an employee of the Aboriginal Legal Services (ALS). The applicant complained that she attended the ALS to obtain assistance in getting the documents to make an application for a divorce. The applicant said that Mr Lamb was not at his office but later that day he came to her home and offered her the service on the condition that she have sex with him. She said she reported the incident to a local support worker and also to the police.

    The Court found the applicant’s complaint of sexual harassment against Mr Lamb substantiated. It further found that giving out a divorce application form was a legal service provided in connection with the employment of Mr Lamb, and that this fulfilled the requirement under s 106(1) for a finding of vicariously liable on the part of ALS for Mr Lamb's unlawful conduct. The Court held, however, that the employer must take all reasonable steps to prevent the harassment complained of from occurring, but that it is not necessary to take every step possible to ensure that it does not occur. The ALS had taken all reasonable steps and thus established a defence under s 106(2) and was found not to be vicariously liable for the conduct of Mr Lamb.

    Feminist commentary

    “[C]ourts have also acknowledged that the reasonable steps defence does not establish a blanket standard required across all employers, but is variable; being moulded by such factors as the size of the employer.” (Hely 2008, p.200)

  • Howard v Geradin Pty Ltd Trading as Harvard Securities [2004] VCAT 1518 | austlii
    Victorian Civil and Administrative Tribunal, Member Davis

    Summary

    The complainant was employed by the company as an investment portfolio manager. The complainant alleged sexual harassment by a co-worker, Mr Lewis, during the period of the complainant's employment with the first respondent, Geradin Pty Ltd and vicarious liability of the company. The complainant alleged that, at various times during the period of the complainant's employment with the company, Mr Lewis made remarks to the complainant about her body such as "put them away" and "nice legs". She also alleged that Mr Lewis wrote the message "show us your tits" on paper and placed the paper on the complainant's desk so that she would see and read it.

    The complainant alleged that the company failed to take reasonable precautions to prevent Mr Lewis from carrying out the acts of sexual harassment, that it victimised the complainant by involving her in discussions as to what should happen to Mr Lewis; and by asking her whether she wanted the company to sack him. Finally, she alleged that the company was aware that Mr Lewis had previously harassed female employees in the company and had done nothing to prevent such behaviour.

    The Tribunal held that the company had a sexual harassment policy, informed all employees of the policy, implemented the policy, and provided some feedback to staff on a regular but informal basis concerning issues relating to sexual harassment. Thus, the company made out a complete defence to the complaint and the complaint against it was dismissed. The Tribunal commented, however, “[i]t might have been desirable for the company to hold formal and regular meetings or seminars for its staff to update them in a formal manner on matters relating to the company's sexual harassment policy. However, the test to be satisfied is whether the precautions taken were reasonable, rather than ideal. I consider in the circumstances of this case that the company took reasonable steps to prevent the contraventions of the Act that occurred.” (para 58)

    Feminist commentary

    Negative

    “In the case of lewd conduct on the part of co-workers, all tribunals have not been as quick as Mansfield J in Poniatowska to find sexual harassment, especially if the respondent has a sexual harassment policy in place [see Howard v Geradin Pty Ltd].” (Thornton 2010)

  • South Pacific Resort Hotels v Trainor [2005] FCAFC 130 | austlii
    Federal Court of Australia, Black CJ, Tamberlin and Kiefel JJ

    Summary

    This was appeal from a decision of Coker FM which raised issues about the application of the Sex Discrimination Act 1984 (Cth) to the territory of Norfolk Island; the circumstances in which an employer is vicariously liable for acts of sexual harassment committed by its employee; and the assessment of damages by way of compensation for loss and damage suffered because of sexual harassment.

    Coker FM found that sexual harassment had occurred on two occasions, each of them at night and each in Ms Trainor’s room in staff accommodation provided by the appellant as part of its hotel complex on Norfolk Island. Ms Trainor was asleep in her room when Mr Anderson entered uninvited, thereby waking her, and began talking to her. Ms Trainor’s evidence was that Mr Anderson remained in her room, uninvited and unwelcome, until about 3:45 am. During that time he engaged in unwelcome conduct described by the Federal Magistrate as “sexual advances or requests for sexual favours or conduct of a sexual nature”. Ms Trainor was harassed on a second occasion which occurred at night in the staff accommodation. Ms Trainor found Mr Anderson lying on her bed. Mr Anderson was subsequently arrested by police and removed from the premises, his employment was terminated and he was removed from Norfolk Island. Ms Trainor resigned from her employment and left Norfolk Island.

    The Federal Magistrate found that Ms Trainor had been sexually harassed on two occasions by Mr Anderson, that the harassment had occurred in the course of employment and that the appellant, South Pacific Resort Hotels, was vicariously liable. Ms Trainor was awarded $17,536 in damages and costs.

    The respondent appealed the decision, claiming that it was not vicariously liable because the conduct in question was not performed ‘in connection with the employment’ (s.106(1)). Ms Trainor cross-appealed against the award of damages, contending that the award was inadequate and against the weight of the evidence. 

    The Court dismissed the appeal of South Pacific Resort Hotels and the respondent’s cross-appeal.

    Per Black CJ and Tamberlin J

    ‘We would add that the expression chosen by the Parliament to impose vicarious liability for sexual harassment would seem, on its face, to be somewhat wider than the familiar expression ‘in the course of’ used with reference to employment in cases about vicarious liability at common law or in the distinctive context of workers compensation statutes. Nevertheless cases decided in these other fields can have, at best, only limited value in the quite different context of the SDA’. (para 42)

    Per Kiefel J

    ‘In my view no narrow approach to the operation of s 106(1) is warranted. It is consonant with its purpose to read the words “in connection with the employment of the employee” as requiring that the unlawful acts in question be in some way related to or associated with the employment. Once this is established it is for the employer to show that all reasonable steps were taken to prevent the conduct occurring, if they are to escape liability under s 106(2). In this way, the aim of the SDA, to eliminate sexual harassment in the workplace, might be achieved.’ (para 70)

    Feminist commentary

    Neutral

    “[T]here has been an increased blurring of the relevant factors taken into consideration in employment law and sexual harassment law in assessing the nexus requirement. In particular, as noted earlier, each of the Australian federal decisions on vicarious liability for off-duty sexual harassment had regard to employment law jurisprudence, particularly by noting that the relevant sexual harassment had the capacity to adversely impact on the working environment [see especially South Pacific Hotels v Trainor; Lee v Smith; Leslie v Graham].”(Hely 2008, p.196)

    “Kiefel J applied the reasoning in both Robichaud and Tower Boot to support her conclusion that tort principles of common law were not appropriate to the issue of vicarious liability for sexual harassment under s 106(1) of the Sex Discrimination Act 1984 (Cth) ('SDA'). The joint judgment of Black CJ and Tamberlin J adopted a similar approach, concluding that cases decided under common law principles 'can have, at best, only limited value in the quite different context of the SDA. '(Hely 2008, p.175)

Remedies

In discrimination law, remedies for sexual harassment include monetary damages (special and general), apologies and injunctions such as workplace education or requirments that a harasser be removed or transferred. Potential remedies do not differ if a matter is resolved through conciliation or is heard before a court. However, as many cases are resolved through conciliation, the nature and size of the damages awarded are often confidential.

Special damages may be awarded for economic loss, such as lost income or wages and general damages for humiliation, hurt and injury to feelings. Damages are compensatory, so punitive and exemplary damages may not be awarded. The calculation of damages is assessed with reference to the effect of the conduct on the complainant. However, in some cases, decision makers have found sexual harassment to have occurred but have refused to award damages. Costs may be awarded in some jurisdicitons.

When damages are awarded, the size and nature of the award has often been a source of critique by feminists. The size of the award of damages in sexual harassment cases in Australia have, with few exceptions, been much lower than in other countries, notably the United States. In some jurisdictions, there is a cap on the award of damages. While a few cases established new benchmarks for damages awards, the average amount has remained low. The following cases demonstrate these themes.

  • McKenna v State of Victoria [1998] VADT 83 | austlii
    Victorian Anti-Discrimination Tribunal, Members Wolters, Lanteri, McCallum

    Summary

    The proceedings concerned two complaints that were heard together. The first complaint was of discrimination on the grounds of sex and marital status against the first respondent, the State of Victoria. The second complaint was of sexual harassment and discrimination on the grounds of sex against the second respondent, Mansfield, engaged in by him in the course of employment by the first respondent. The complainant also alleged victimisation against the first respondent and two further respondents, Fyfe and Arnold.

    The complainant was a senior constable with Victoria Police. She transferred to Bairnsdale police station and found the treatment of women very different to her experience in her previous location. Men would constantly tell demeaning sexual jokes in her presence and would make “snide comments all over the place on a day to day basis about women and their role”, saying that a woman's place was in the home, the bedroom or the kitchen.

    There were three alleged acts of sexual harassment. Two involved another police officer, Mansfield, pulling Ms McKenna onto his lap and saying ‘how about a head job?’. The third incident involved Ms McKenna being grabbed and pulled towards a holding cell, followed by an attempt to lock her in the cell.

    Asked whether women at the station could not avoid hearing the jokes, the complainant said that the jokes were not said when certain women were there and they were not said when women were there who were married to men at the station. The Tribunal was satisfied that the station provided a work environment where coarse language was common and that obscenities would have been part of that environment. The complainant said the second respondent, who was the officer in charge of the nightshift, “grabbed me around the waist and pulled me on to his lap, and then he put his arms around my chest and hugged me, and I broke free of his grasp virtually straight away, stood up and pushed him backwards off the chair and he and the chair went over backwards on to the floor.”

    The complainant alleged that her work performance and attitude had been criticised in a degrading manner, that she was denied access to training otherwise available to the male officers, denied access to special duties, was recommended for disciplinary action in relation to an off-duty sports game, her personal address was disclosed to an ex-partner and inaccurate and derogatory comments were made about her.

    Constable McKenna sought a transfer to another station and after two years was transferred. She had periods of sick leave resulting from the stress she was experiencing, had ongoing medical attention and obtained counselling from a psychologist after attempting suicide. She said she had a breakdown, her self esteem was affected, she had difficulties with sleep, eating and doing other normal activities and suffered anxiety attacks.

    The Tribunal found that the complainant had been discriminated against on the basis of her sex. It found that Mansfield’s conduct reasonably induced in the mind of the complainant that her employment was dependent on the acceptance of his sexual advances. It was satisfied that no reasonable precautions were taken by the first respondent to prevent employees contravening the Act. The Tribunal found in respect to a number of the allegations that the first respondent was vicariously liable for the actions of its relevant employees.

    The Tribunal found that the Victoria Police and three of its employees had been responsible for sexual harassment by Mansfield as well as sex and marital discrimination. It awarded Constable McKenna $125,000 in general damages (for hurt feelings, distress and psychological illness), setting a new benchmark in damages for sexual harassment. It found the first respondent vicariously liable for the actions of the second, third and fourth respondents who it found to be jointly and severally liable for the payment of the damages with the first respondent.

    It also found that Constable McKenna was subjected to bullying by senior officers once she had made complaints about the sexualised environment of the police force. The award of damages went to pain and suffering, rather than lost wages.

    The State of Victoria and police officers concerned appealed the decision to the Supreme Court of Victoria, on 54 grounds; the appeal was dismissed.

    Commentary

    “A major reason why Ms McKenna felt reluctant to make a complaint was the culture in the police force that discouraged the ‘dobbing’ in of colleagues. Her concerns were well founded in light of the victimisation and further harm that flowed from her subsequent complaint to an external body. Such a culture should be challenged from the top down. It is submitted that imposing a positive duty on employers to guard against sexual harassment would be a more effective way to facilitate this cultural change than through the current legislative arrangements. At least two reasons can be given. First, imposition of a duty is aimed at prevention of the problem, rather than dealing with complaints after the fact. Second, the onus is on those in power to make sure that harassment is not taking place, or that it is dealt with promptly if it does occur.” (Mackay 2009, pp. 214-215)

  • Gilroy v Angelov [2000] FCA 1775 | austlii
    Federal Court of Australia, Wilcox J

    Summary

    The applicant, Leoni Gilroy, was subjected to sexual harassment by a fellow employee, Branko Angelov, the first respondent, over a period of three weeks while she worked as a cleaner for the second respondent, Botting Co. Ms Gilroy said that various incidents occurred, beginning with sexual comments made by Mr Angelov on her first day of work and that virtually every subsequent day, early in the shift, he would ask her: "Are you horny today?" She said that she did not take any action at this time as she needed the money the employment offered.

    The plaintiff also said that she was physically attacked, including when the first respondent groped her and then made sexual thrusting movements on her backside whilst in a storeroom. The applicant said that when she informed the first respondent this was sexual harassment, he replied:  "If you report me, I will come to your house and rape your daughter. My friend will hold you down while you watch then it will be my turn and I will rape you." She also said that on a later occasion, the first respondent exposed his penis to her while she was cleaning in an isolated part of the building.

    The applicant said that when she first informed her employer, Mr Botting, of the harassment, he said that it was the first respondent’s ‘sense of humour’ and that she should not feel threatened. However, she continued to refuse to be left alone with the first respondent when ordered to by Mr Botting. She also said that Mr Botting had witnessed the first respondent yelling at her and placing uncleaned ashtrays under her nose and that she had been a witness to sexual comments made by Mr Botting to Mr Angelov about her and another female employee.

    Following the exposure incident, she informed Mr Botting of the extent of the harassment, and this conversation was witnessed by his wife, Mrs Botting. The plaintiff was subsequently fired from her position because Mrs Botting mistakenly believed that Mr Botting and the plaintiff were having an affair.

    Botting Co sought to escape liability on the basis that it had taken all reasonable steps to prevent the sexual harassment. The court rejected this argument and it was found liable for Ms Gilroy’s harassment.

    Per Wilox J:

    “In Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217 at 256, I observed that "the task of determining the appropriate level of damages in a case of sex discrimination or sexual harassment is not an easy one". I went on to make some comments which I venture to repeat:

    "Where it appears that a claimant has incurred particular expenditure or lost particular income as a result of the relevant conduct, that economic loss may readily be calculated. But damages for such matters as injury to feelings, distress, humiliation and the effect on the claimant's relationships with other people are not susceptible of mathematical calculation. The assessor of damages must make a judgment as to an appropriate figure to be allowed in respect of these figures. But to say this is not to denigrate the importance of such non-economic factors in the assessment of damages. It may be unfortunate that the law knows no other way of recognising, and compensating for, such damage; but this is the fact. To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in respect of a proved item of damage.”

  • Williams v Robinson [2000] HREOCA 42 | austlii
    Human Rights and Equal Opportunity Commission, Commissioner Nader QC

    Summary

    The complainant, Katherine Williams, was sexually harassed by the first respondent, Colin Robinson, while employed in the RAAF by the second respondent, the Australian Defence Force. Ms Williams gave evidence about an incident of sexual harassment which had occurred in 1985, eleven years before the events that were the subject of the inquiry, in which she had been sexually assaulted in her sleep by two men. The assailants were identified, fined and suffered loss of seniority, not for the offence of sexually or indecently assaulting Ms Williams, but for being in the accommodation block with alcohol. The plaintiff’s perception that the offenders had not been dealt with appropriately was to be a factor aggravating the deleterious effect of the subsequent assaults upon her. The incidents that formed the subject of the inquiry concerned Mr Robinson, a sergeant and Ms Williams’ direct supervisor during 1996. Ms Williams alleged that on two occasions he had grabbed her and held her to his body. These two assaults had a profound effect on her: Ms Williams said she felt embarrassed, ashamed, confused and angry.

    Evidence was accepted that when the plaintiff attempted to notify a superior, Corporal Croft, of the incidents, he responded: ‘Oh really?’ Following her complaint, the defendant was instructed to provide a written apology to the plaintiff and he did so. However, no formal investigation was undertaken.

    Ms Williams found the environment of working at RAAF so intolerable that she resigned.

    The Tribunal found the complaint of sexual harassment by the first respondent substantiated. It concluded that the RAAF had not taken all reasonable steps to prevent members of the RAAF, including Robinson from acting in this way and that it was therefore vicariously liable for the actions of Robinson. It awarded damages for which the first and second respondent were liable jointly and severally. The Tribunal ordered general damages of $30,000 for emotional pain, humiliation and embarrassment suffered by Williams. It also found that she had suffered to such an extent that she would be unable to pursue her desire of a career in the RAAF. It assessed her economic loss, past and future at $100,000.

    Per Nader QC

    “The conduct of the RAAF, through the agency of the officers who dealt with Williams, after she had made her complaint was unsatisfactory. I have already said that apart from the “in-house investigation” upon which I have just commented, there was no formal investigation.”

    “This evidence establishes that sexual harassment had for some time been a problem in the RAAF. Against that background, strong measures were required to prevent members from sexually harassing other members.”

    “Therefore, in addition to the emotional pain, humiliation, embarrassment and other negative emotions suffered by Williams in the circumstances of and following Robinson's harassment of her, she also lost the chance to fulfil her desire to follow a career in the RAAF. These are not slight matters, and may be said to have blighted her life to a considerable extent. They are the matters for which general damages are awarded.”

    “A claim for aggravated damages was made by analogy with the circumstances in which aggravated damages are awarded in defamation cases, with reference made to the benefits that would have been brought by a proper investigation and an early apology by the RAAF. It was also noted that the defence run by the RAAF in the Inquiry had been without merit and was potentially an aggravator of damage. It was noted that these matters can be adequately addressed by way of general damages.”

    “Nevertheless, it is likely that having left the RAAF, Williams would in any event have suffered considerable loss of income for a number of reasons.”

  • Font v Paspaley Pearls and Others [2002] FMCA 142 | austlii
    Federal Magistrates Court of Australia, Raphael FM

    Summary

    The applicant was employed by the first respondent as a sales person in a prestigious car showroom. She claimed that during the course of her employment she was a victim of sexual harassment, sex discrimination and victimisation, for which the first respondent was vicariously liable for the second and third respondents Brian Purkis and Simone Tropiano. The former was the first respondent's retail manager for Australia whose office was at the showroom in Sydney; the latter was the manager of the Sydney showroom.

    The applicant said that the second respondent made unwelcome remarks as well as certain physical actions. She said Mr Purkis made comments about her appearance. On one occasion she leaned forward in order to write down a telephone message. She felt a hard jab between her legs in her vagina. She turned around and saw the second respondent standing behind her holding a Carrera walking stick in his hand, laughing. The applicant said that she was forced to terminate her employment with the first respondent as a result of the actions of the second and third respondents. Her claim of victimisation related to the failure of the first respondent to pay the applicant a Christmas bonus which she alleged was paid to other members of staff.

    The Court held that the fact that the applicant did not complain about the conduct of Mr Purkis did not mean in itself that it did not occur. In an employment situation, where the applicant is subjected to low level harassment over a period of time, a failure to complain is not unusual. The Court found that Mr Purkis’s homosexuality and lack of sexual interest in the complainant did not give him the "defence of homosexuality". Under the Sex Discrimination Act a person need not actually intend to offend for his or her conduct to amount to sexual harassment.

    The Court found the applicant had been sexually harassed and that the first and second respondents were responsible. It rejected the claim of victimisation. It awarded $100,000 in general damages and $7,500 in exemplary damages.

    Feminist commentary

    Neutral

    ‘Punitive (or ‘exemplary’) damages are awarded for ‘reprehensible conduct which might perhaps have warranted punishment, rather than findings of the infliction of hurt, insult and humiliation,’ and have not been a particular characteristic of Australian sexual harassment matters to date. However, the nature of the award has been commented on in a small number of harassment matters and an amount in punitive damages was actually awarded in one case–Font v Paspaley Pearls [2002] FMCA 142. Federal Magistrate Raphael awarded $7500 in exemplary damages, explaining that while the complainant had claimed aggravated damages:

    “The Federal Magistrates Court is not a court of strict pleading. … I do not think that the fact that the conduct which is complained of was described as entitling the applicant to aggravated damages, when in fact a proper description would have included exemplary damages, should prevent the applicant from recovering (at 166).”

    However, in the matter of Frith v The Exchange Hotel Rimmer FM stated that:

    “… it seems clear that the Court does not have power to make an award for exemplary damages in any event, and I respectfully disagree with Raphael FM’s conclusion in Font v Paspaley Pearls (2002) FMCA 142 that such a power exists.” (Easteal et al 2011, p. 233).

  • Frith v The Exchange Hotel & Anor [2005] FMCA 402 | austlii
    Federal Magistrates Court of Australia, Rimmer FM

    Summary

    The complainant was employed at a hotel. She complained of sexual harassment by the second respondent, the sole director of the company trading as the Exchange Hotel over the course of her two day employment. She alleged that the second respondent had forced her to have sexual intercourse with him a precondition of her employment.

    Liability was found against both respondents. The Exchange Hotel was described by Rimmer FM as the ‘alter ego’ of the second respondent and there was therefore no difficulty in relating the acts of the second respondent and the acts and behaviour of the hotel itself. Federal Magistrate Rimmer found that the events had had a significant and negative impact on the complainant. General damages and damages in respect of loss of income were awarded.

  • Lang v Nutt [2004] QADT 37 | austlii
    Queensland Anti-Discrimination Tribunal, Member Roney

    Summary

    The complainant sought financial compensation and an apology for sexual harassment she suffered at the hands of the respondent, the general manager, whilst employed as a marketing assistant with the Palm Beach Surf Lifesaving Club. The sexual harassment included subjecting the complainant to demands for sexual favours; making remarks with sexual connotations to her; and kissing her on the lips and head.

    The Tribunal found the complaints were substantiated. Member Roney held that “[a]lthough there may have been a level of sexual banter and innuendo engaged in by both the complainant and the respondent, none of that conduct amounted to solicitation or encouragement of Nutt, in any legitimate way, for his conduct toward the complainant. It would have been obvious to him that his advances were unwelcome and that he was attempting to use a position of influence over her to persuade her to engage in consensual sexual activity with him.” (para 27)

    The Tribunal ordered payment of damages totaling $40,505, less refunds due to Workcover or Centrelink. This was made up of general damages for offence, embarrassment, humiliation and intimidation totaling $15,000, plus interest, and economic damages for loss of income of $24,700.

    Commentary

    “[W]here there has been acknowledgement of conduct without an admission of wrongdoing, it has been concluded that an ordered apology would serve no useful purpose [see Lang v Nutt].” (Carroll 2010, p.373)

  • Lee v Smith (No 2) [2007] FMCA 1092 | austlii
    Federal Magistrates Court, Connolly FM

    Summary

    Ms Lee was employed as an administrative officer by the Department of Defence at the Cairns naval base. She made a complaint of sexual assault, sexual discrimination, harassment and victimisation engaged in by three officers during the course of her employment, including unwanted touching, sexual advances, comments and messages, displays of pornography, threats, verbal abuse, bullying and intimidation. The threats, abuse, bullying and intimidation coincided with Lee making a complaint to a colleague about the behaviour. The rape occurred following a social event held by a colleague. The Department argued that it had taken all reasonable steps to prevent the assault from occurring, and that it should not be held vicariously liable for the assault.

    Connolly FM rejected the department’s argument that it had taken all reasonable steps to prevent the sexual harassment from occurring and found that it took no action to deal with the sexual assault despite being aware of the allegation. He accepted evidence from Ms Lee that she suffered post-traumatic stress disorder and depression, was unemployed, and suffered serious damage to her personal relationships.

    In a separate judgment, Connolly FM made an order that the Department and the three male officers pay to Lee damages in excess of $400,000 plus costs for the unlawful sexual harassment and assault. He also ordered that the federal government re-employ Lee in a different department.

    Per Connolly FM

    ‘In determining the issue of the application of s106(1) of the Sex Discrimination Act 1984 (Cth) to the incident of rape, I am satisfied that particular regard should be given to the factors I have previously indicated–that the rape was the culmination of the earlier incidents of sexual harassment directly in the workplace. Consequently I accept the submissions of the Applicant’s counsel that the First Respondent’s conduct was an extension or continuation of his pattern of behaviour that had started and continued to develop in the workplace he shared with the Applicant. The nexus with the workplace was not broken.’ (para 206)

    Feminist commentary

    Negative

    ‘Even in the recent case of Lee v Smith & Ors [2007] FMCA 59 in which the complainant in her Defence job endured ongoing incidents of workplace sexual harassment (such as the passing of offensive notes, discussion of sexually explicit topics and incidents of indecent touching) and was ultimately raped by a colleague, she was awarded general and special damages in the amount of $387,422.32 which is remarkably small when considered in light of the DJs case [see Fraser-Kirk v David Jones Limited [2010] FCA 1060 below]. Unlike the DJs matter though, Lee’s case was pursued solely under the legislative provisions of the SDA and punitive damages were not sought.

    Interestingly, despite the extreme severity of the workplace assault in comparison to that complained of in the DJs matter, the public and media did not embrace Lee’s case as being interesting in the way that the DJs matter has been regarded. Perhaps this highlights the effectiveness of Fraser-Kirk’s punitive damages claim as ‘… a way to drive home the point, hard, that corporations are responsible for safe workplaces and need to take sexual harassment seriously.’ (Easteal 2007, p. 234)

  • Poniatowska v Hickinbotham [2009] FCA 680 | austlii
    Federal Court of Australia, Mansfield J

    Note appeal decision below

    Summary

    Ms Poniatowska was employed as a building consultant by Employment Services Australia to sell house and land packages on behalf of Hickinbotham Homes Pty Ltd. Ms Poniatowska made complaints to management claiming that she had been subjected to sexual harassment. She was issued with a series of formal warning notices and ultimately terminated for ‘unsatisfactory performance’. After an unsuccessful conciliation at the Industrial Relations Commission of South Australia, she made a complaint to the Human Rights and Equal Opportunity Commission of sexual discrimination, racial discrimination and sexual harassment. The allegations of sexual harassment included that:

    • The chairman of Hickinbotham Group had told her that she had ‘two good assets’ while staring at her breasts;
    • She had received a number of inappropriate emails from a co-worker, Mr Flynn, inviting her to have a sexual relationship, which humiliated and shocked her. When she reported this to her team leader, she had been told, ‘what do you expect with a face like yours?’;
    • She was rostered to work with another employee, Mr Lolito, even though she had specifically requested that she not work with him and he subsequently sent her a pornographic message and invitations for sex;
    • Her team leader had requested that she enter into a sexual relationship to advance a deal for the group; and
    • The managing director had kissed her on the mouth at a work function.

    The Human Rights and Equal Opportunity Commission found that the dispute was unlikely to be successfully conciliated. Ms Poniatowska applied to the Federal Court to hear the matter. Mansfield J found that the majority of incidents alleged had taken place, although he did not uphold the allegations in relation to the harassment by the Chairman or Managing Director, nor that her team leader had asked her to enter into a sexual relationship to further a deal. He did find that Mr Flynn and Mr Lolito had harassed her and that the company did not respond adequately.

    The court held that the termination of her employment was related to the incidents, not the quality of her work. It ordered that $466,000 be paid by the employer to Ms Poniatowska as damages for unlawful discrimination. It also ordered that the Hickinbotham Group could apply for an order that some or all of the compensation be paid by the employees involved in the harassment.

  • Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92 | austlii
    Federal Court of Australia, Full Court, Dowsett, Stone & Bennett JJ

    Summary

    Employment Services Australia appealed the decision challenging a number of the factual findings as well as legal findings. Ms Poniatowska cross-appealed. Both appeals were dismissed with costs.

    Commentary

    Poniatowska v Hickinbotham is thought to involve one of the highest awards of damages for claims of this nature ever awarded.” (Catanzariti 2009, p.43)

  • Fraser-Kirk v David Jones Limited [2010] FCA 1060 | austlii
    Federal Court of Australia, Flick J

    Summary

    Ms Fraser-Kirk was employed by David Jones Ltd as a publicist. She claimed damages in tort, contract, equity and trade practices for sexual harassment against her employer and the CEO and Director, Mark McInnes. Fraser-Kirk claimed that McInnes had made a series of unwelcome sexual advances and other interactions towards her. She alleged that the senior management and members of the board were aware of previous allegations of sexual harassment against McInnes, but had failed to do anything about it. Ms Fraser-Kirk sued her employer, Mr McInnes and a number of senior executives of the company. She also made a complaint to the Human Rights and Equal Opportunity Commission of sexual harassment. The case received extensive media attention, during which McInnes resigned.

    The approach taken by Fraser-Kirk to a sexual harassment claim was particularly innovative. She alleged that David Jones had breached the Trade Practices Act because it had engaged in misleading and deceptive conduct in her initial employment interview about the work culture and employment conditions she could expect at David Jones and that there were written policies which indicated that the organization did not tolerate harassment, discrimination or bullying.

    Fraser-Kirk sought both compensatory and punitive damages against David Jones and McInnes. She sought compensatory damages for general humiliation, distress and anxiety, loss of opportunity for promotion and advancement in her chosen career and medical expenses. She also sought punitive damages against David Jones of $35 million, or 5% of David Jones’ profit while McInnes was Chief Executive, and against McInnes of 5% of his remuneration and benefits for the period he was employed, estimated at $2 million.

    The case was settled by David Jones and McInnes for an amount of $850,000 inclusive of all legal costs.

    Feminist commentary

    Positive

    ‘In the DJs matter the FCA was able to utilise its powers of accrued jurisdiction to also hear the claims under tort, contract and equity laws which would otherwise normally have been heard at state level. This was strategically important because the FCA is jurisdictionally able to enjoy a high degree of flexibility in awarding damages of a significant quantum.

    The tortious component of the claim, while risky, was perhaps the most important tactically. This was because it paved the way for the possible award of punitive damages for breach of the employer’s duty of care. It was ‘risky’ because the amount sought might be perceived by both the court and the media as egregious overreaching. Just as importantly, it was risky because on the facts in the DJs matter, some of the alleged harassment incidents took place at work functions which were held away from the workplace or were text messages which were sent to the complainant while she was at home.

    Had the claim been drafted under the traditional SDA provisions, precedent suggests that a broad interpretation of the legislative provisions would have been afforded as in South Pacific Resort Hotels v Trainor (2005) FCAFC 130. However Hely reminds us that at common law the same generosity in identifying vicarious liability is not extended:

    the employer is liable only to the extent that the employee is acting within the scope of his or her authority and is performing employment duties or is otherwise performing acts incidental to the performance of those duties.

    Therefore, on the facts, the ‘safer’ option may have been to rely on precedent under the legislative provisions of the SDA, although the possibility of a punitive damages award – in addition to loss and damage for offence, humiliation, distress, anxiety and loss of reputation – was an important consideration here” (Easteal et al 2011, p.232).

    ‘The DJs case shows that lawyers can certainly try to use the media as a de facto tribunal in an attempt to gain a more successful result for their clients. However, this method is unpredictable, with the media using its own techniques to examine the credibility of the complainant. The dangers of inaccuracy and being misunderstood must not be underestimated. And, trial by media may backfire when the matter reaches Court. In the preliminary hearing, Flick J warned that ‘care should be exercised … not to make statements which were more in the nature of a media release than a submission which provided genuine assistance to the Court’. He is reported as commenting that McInnes was being subject to ‘a pretty rough form of justice’ and raised the prospect of striking out parts of the claim as they appeared to be an ‘abuse of the process of the court’. Therefore, what is persuasive in the court of public opinion may not be so convincing to judges.

    These caveats notwithstanding, the size of the claim for damages in the DJs case is extraordinary when considered against the backdrop of sexual harassment claims generally in Australian legal history.’ (Easteal et al 2011, p.234).

  • Cooper v Western Area Local Health Network [2012] NSWADT 39 | austlii
    New South Wales Administrative Decisions Tribunal, J Needham SC (Deputy President), N Hiffernan and J McClelland (Non-Judicial Members)

    Summary

    The complainant, Ms Cooper, was sexually harassed when a co-worker, Mr Locke, handed her a document that contained graphic descriptions of sexual acts. Both the complainant and Mr Locke were employed by the Western New South Wales Local Area Health Network. They had worked together for about five years and occasionally socialised together. During an off-site work training course, Mr Locke handed the complainant a folded piece of paper. She did not read it until after she returned to her hotel room, but then discovered that it contained extremely explicit sexual material. It did not identify any names, nor state that it was clearly intended for her. She claimed that Mr Locke did not warn her in any way that the contents were sexually explicit. The complainant said that reading the document made her feel physically ill. She rang Mr Locke and said she was disgusted and horrified by it. Ms Cooper reported the matter to the police next day and then reported the matter to her supervisor.

    The Tribunal found that Mr Locke’s conduct amounted to sexual harassment, but that the employer had taken sufficient steps to prevent sexual harassment at the workplace, which meant that it was not vicariously liable for his conduct.

    Per J Needham SC (Deputy President), N Hiffernan and J McClelland (Non-Judicial Members)

    '… provision of the note, with its graphic descriptions of sexual acts in very explicit sexual language, must fall within the description of "conduct of a sexual nature". To say that the "conduct" was merely the giving of a letter misses the point that human beings who can read must, having read the note, have some understanding of its sexual content. Ms Cooper gave evidence that she was shocked and disturbed by the contents. We find that the provision of the note to Ms Cooper was "conduct of a sexual nature".  … Even had Mr Locke warned her that it was "graphic", which we have found he did not, the terms of the note are so graphic as to be objectively highly offensive.’

    ‘… the proper approach is not to trawl through the cases to find one with similar facts and to set an amount of damages in a similar range, without references to the specific circumstances of this case. Reference to other cases can be useful for the assistance they provide in demonstrating the kinds of damages awarded for breaches of the Act … However [they do not] provide a binding authority on this Tribunal as to the proper amount of damages. Factors which would inform the level of damages include the severity of the breach, the fact that it was a one-off incident, the context of the incident (at work, within a friendly co-worker relationship) and the significance of the ongoing effects of the conduct. In our view, while distressing and upsetting for the applicant, the incident does not command damages in the higher range. It happened once, was not an incident which was intended to upset her (despite the probability, given the nature of the document, that it would do so), and was dealt with by the employer in a way which finalised the impact on Ms Cooper. The psychologist's report does not reveal any ongoing issues. Given that the maximum damages that may be awarded is $100,000, presumably for the worst offences, we consider that an award of $10,000 is appropriate in this case.’

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Victorian Equal Opportunity & Human Rights Commission, Victorian Discrimination Law (2013) at: www.humanrightscommission.vic.gov.au/index.php/our-resources-and-publications/victorian-discrimination-law

Pay equity

Women’s struggles for pay equity have a long and chequered history. Equal pay decisions by Australian industrial tribunals in the late 1960s and early 1970s represented early victories for the feminist movement, but the Australian workforce remained highly sex-segregated and work in female-dominated occupations remained undervalued. Attempts to tackle the ongoing undervaluation of women’s work were launched in the late 1980s and achieved some success in a series of pay equity inquiries and equal remuneration decisions commencing in the late 1990s. This case study maps the trajectory of hard-won feminist gains as well as losses and reversals in the pay equity arena over 55 years from 1958-2013.

Pay equity (printable version).

1950s - 1960s – The ILO Convention and equal pay for equal work

International Labor Organisation (ILO) Convention No 100, providing for equal remuneration for men and women workers for work of equal value, was adopted by the ILO in 1951. In the wake of the Convention, Australian States initially introduced equal pay legislation, with this movement culminating in the adoption by the federal Conciliation and Arbitration Commission of the principle of ‘equal pay for equal work’ in 1969. These early provisions were limited in scope, however, applying only in the relatively rare situations in which women were undertaking the same work as men.

  • Female Rates (Amendment) Act 1958 (NSW)

    The Act was designed to implement ILO Convention No. 100, and required the Industrial Commission and conciliation committees in specified circumstances to insert provisions for equal pay between the sexes into industrial awards and agreements.

  • Re Clerks (State) Award and other Awards (1959) 58 AR 470
    NSW Industrial Commission: Full Bench

    The Commission held that in order for an equal pay provision to be inserted into an award or agreement, the work performed by female employees must be of a similar or like nature and of equal value to work performed by male employees under the same award or agreement, with ‘value’ interpreted to mean as determined by the Commission rather than the employer.

  • The Australasian Meat Industry Employees Union & Others v Meat and Allied Trades Federation of Australia & Others (Equal Pay Cases) (1969) 127 CAR 1142
    Commonwealth Conciliation and Arbitration Commission: Moore and Williams JJ, Commissioner Gough, Public Service Arbitrator Chambers

    Intervening women’s organisations included: Australian Nursing Federation Employees Section; Australian Federation of Business and Professional Women’s Clubs; Union of Australian Women; Australian National Council of Women; Australian Federation of Women Voters.

    The federal Arbitration Commission adopted the principle of ‘equal pay for equal work’ to be phased in over three years, bringing women covered by federally registered awards into line with those covered by state awards. This decision stressed the need for work to be of “the same or like nature and of equal value”. It also specified that, “notwithstanding the above, equal pay should not be provided by application of the above principles where the work in question is essentially or usually performed by females but is work upon which male employees may also be employed”.

    Documents cited by union parties arguing for equal pay

    ILO Convention No. 100, Recommendation No. 90 of 1951, Convention No. 111 (non-discrimination) and Recommendation No. 111 of 1958.

    Commission considerations

    “The Commonwealth Government supplied the Commission and the parties with a document called ‘Equal Pay – some Aspects of Australian and Overseas Practice’ (produced by the Australian Department of Labour and National Service 1963) which everyone concerned found most useful.”

    The Commission also considered the state legislation of NSW, WA, SA and Tasmania where equal pay had been implemented; they considered this was indicative of community expectations towards wage equality.

    The Commission stated that various women’s organisations had intervened in the proceedings and “they all supported the submissions made by Mr Hawke (Applicant’s representative)…They presented additional information, economic, social and historical in support of their overall attitudes. Emphasis was placed upon the status of women and the desirability to end discrimination against women in all forms. We were referred to existing social security legislation, particularly to the alleged inadequacy of it, and to the fact that many more married women were coming into the workforce for a variety of reasons – economic, social and technological. It was said that due to better mechanical devices many women were being relieved of the drudgery round the home and were able to enter or re-enter the workforce. Reference was also made in some detail to the struggle which certain groups of women were having to achieve a proper standard of living and in particular to a survey undertaken in 1966 by the Institute of Applied Economic Research at the University of Melbourne, commonly known as the ‘Poverty Survey’”.

    Feminist commentary

    Neutral assessments

    The “principle incorporated a number of features identified as empowering in the fight for pay equity. The guidelines ensured minimal legal formality and locked the pay equity process into delivery through the award system, with the intent to remove any evidence of direct discrimination in award wages from the Australian system.” (Whitehouse et al. 2001, p.376)

    Positive assessments

    The case broke “through the institutionalised sexism that had marked early Australian wage fixation.” (Smith 2009, pp.654-655)

    Negative assessments

    The case “had limited application: few women were doing the same work as men…[t]hree years later there was general agreement that less than 20 per cent of the female workforce had received equal pay. ” (Gaudron and Bosworth 1979, pp.163-165)

    “The 1969 Case did not produce the benefits hoped for… As a result of the decision, approximately 18 per cent of females in the workforce received equal pay…Once again, the vast majority of women were deprived of wage justice and the private sector retained its source of cheap labour…A feeling of dejection and what can we do now prevailed.” (D’Aprano 2001, pp.200-205)

1970s - 1980s – Equal pay for work of equal value

The limited effect of the 1969 principle of ‘equal pay for equal work’ led feminist activists back to the federal Conciliation and Arbitration Commission in 1972, where they successfully argued for the expansion of the principle to cover ‘equal pay for work of equal value’. The principle was implemented at federal and state levels and in various occupations over the following years, although arguably not as fully as it could have been, with, in a number of instances, women’s work simply being incorporated at the bottom of existing male pay scales by consent, rather than any proper consideration being undertaken of the value of the work. In 1986, feminists made an unsuccessful attempt to incorporate the American doctrine of comparable worth into the equal pay principle. Meanwhile, during the later part of this period, potential equal pay initiatives were undermined by changes to the federal industrial relation systems, in particular the move to enterprise bargaining. While feminist organisations pointed out the deleterious implications of these shifts for women workers, their concerns fell on deaf ears.

Establishment

  • National Wage & Equal Pay Case (1972) 147 CAR 172
    Commonwealth Conciliation and Arbitration Commission: Moore, Robinson and Coldham JJ, Public Service Arbitrator Taylor, Commissioner Brack

    Subsequent to the 1969 decision, various unions and women’s organisations went back to the Commission saying that only an estimated 18 per cent of the female workforce (i.e. mostly those working in identical jobs to males) had received equal pay. They asked for an extension of the principles along the lines of the ILO Convention 100.

    The Commission concluded “in our view the concept of ‘equal pay for equal work’ is too narrow in today’s world and we think the time has come to enlarge the concept to ‘equal pay for work of equal value’. This means that award rates for all work should be considered without regard to the sex of the employee.”

    However, the minimum wage was not made equal between women and men “because the male minimum wage takes account of family considerations.”

    Commission considerations

    The Commission at one point referred to the Women’s Liberation Movement who they said “pushed for the implementation of the new principle within a 3 year period”. However, there was no elaboration on their role in the decision or any other information given about any literature or documentation submitted by them.

    Feminist commentary

    Positive assessments

    “Big changes in award rates and earnings did occur during the period 1969 to 1976 as a result of unions applying for equal pay for their members in combination with the minimum wage changes.” (Short 1986, p320)

    “As a result of the 1972 proceedings, the effective exclusion of female dominated industries from the ambit of the 1969 decision was removed, through the introduction of the broader principle of equal pay for work of equal value. The 1972 principle was also adopted by State industrial tribunals.” (Smith & Lyons 2008, p.7)

    Negative assessments

    “Implementation of the 1972 decision in particular has been slow and, at present, probably only partial. The 1972 decision was apparently framed to affect female-dominated industries where previously women had been unable to achieve equal pay. The decisions of the federal and some state Commissions make it apparent that these aims were not fully achieved. The historical discrimination evident in Australia’s wage fixing may still persist, particularly in female-dominated work areas, where work value has been assessed for changes over time but never for comparative work value with men to see if the original rate was discriminatory.” (Short 1986, p.329)

    “While significant developments have occurred through the industrial arbitration system in relation to the application of the principle of equal pay for equal work, the achievements made in the area of equal pay for work of equal value have been ad hoc and limited to particular cases.” (Burton 1991, p.126)

    “It led to the wide-scale dismantling of designated ‘male’ and ‘female’ jobs and pay rates in awards. Removing the labels did not necessarily change the practice, however. Women and men still tended to do different work.” (Hunter 2000, p.11)

    “But while the articulated rules changed, the entrenched social norms which influenced what constituted a fair differential were not so easily reformed. It appears that in numerous cases, instead of evaluating former female job classifications systematically, they were simply transferred to the lower end of what had been the men’s pay classification.” (Todd & Eveline 2004, p.34)

    “[i]n the period between 1981 and 2003 female earnings in Australia have ranged from about 80 to 85 per cent of male earnings, the application of the 1972 equal pay for work of equal value principle notwithstanding.” (Smith & Lyons 2008, p.7)

  • National Wage Case (1974) 157 CAR 293
    Commonwealth Conciliation and Arbitration Commission: Moore, Robinson and Ludeke JJ, Deputy President Isaac, Public Service Arbitrator Taylor, Commissioner Portus

    In this case the Commission granted one minimum wage for adults instead of separate male and female rates. This represented the final abandonment of the family needs concept. The Commission concluded: “we believe a strong case has been made for the claim of equal treatment of adult male and female workers in respect of the minimum wage”. The Commission thought it was not their role to determine family needs given they did not have the information to enable them to decide what the varying needs of workers were.

    Feminist commentary - positive

    “The equal pay decisions of 1969, 1972 and 1974 did have a substantial effect on the minimum hourly (award) wages of women relative to men, raising female award rates from 72 per cent of male rates in 1968 to 94 per cent in 1978.” (Short 1986, p.329)

  • State Equal Pay Case [1973] AR 425
    NSW Industrial Commission: Beattie P, McKeon and Sheldon JJ

    This was a test case concerning the principles to be applied in making awards fixing wages for women workers. The Clerks Union applied to have the Clerks (State) Award varied and asked the Commission to adopt a new principle, that wage rates should be fixed by a consideration of the work performed irrespective of the sex of the worker. This case referred to the federal decision in the National Wage Case the previous year and the new principle of ‘equal pay for work of equal value’.

    All parties agreed that the new Commonwealth principle should be adopted for the purposes of wage-fixing under the Industrial Arbitration Act 1940 (NSW), but there was significant disagreement as to how the new principle should be implemented in awards and also as to the timing of the implementation.

    The Industrial Commission noted that it had sought in recent years to ensure that there was consistency between its decisions and those of the Commonwealth tribunal; “[w]e believe that the time is opportune to introduce in the New South Wales system the principle of equal remuneration for men and women workers for work of equal value, meaning thereby rates of remuneration established without discrimination based on sex.” The Commission held, inter alia, “to fix rates of wages for female employees in relation to the basic wage for adult females and to fix rates of wages for male employees in relation to the basic wage for adult males is to discriminate on the basis of sex.”

    The Commission held the principle of equal pay was to be achieved by granting female employees “equal pay loadings” over a period of 18 months to an amount equal to the differential figure.

    Feminist commentary - neutral

    “The principle of ‘equal pay for work of equal value’, however, is not defined with any greater specificity than in the Commonwealth case. The majority in the State decision stated ‘[e]qual remuneration is capable of achievement in the circumstances of today only if the level of women’s wages for a particular class of work is raised to the level of men’s wages for that class of work.’ Although we once again encounter a certain imprecision in the use of language, ‘the class of work’ does suggest that no radical cross-classification comparison was envisaged.” (Thornton 1981, p.473)

  • Industrial Conciliation and Arbitration Act Amendment Act 1975 (No. 2) (Qld)

    This Act amended the Industrial Conciliation and Arbitration Act 1961 (Qld) by providing that under the terms of any award, “the same wage shall be paid to persons of either sex performing the same work or performing work of a like nature and of equal value or producing the same return of profit to their employer.”

Implementation

  • Re Municipal Officers’ (Tasmania) Award 1970 [1975] 167 CAR 254
    Australian Conciliation and Arbitration Commission: Commissioner Gough

    The absence of arbitrated equal pay decisions in the clerical and keyboard area was noted by the advocate for the Municipal Officers’ Association. An interim equal pay increase of six per cent was awarded.

    The existing relativities between stenographers and machine operators, and clerks/typists were retained pending the determination of their relative work value. The award was varied to show that clerical positions were no longer confined to male officers.

    The matter of the additional allowance under the award for a ‘married male junior with a dependent wife or child’ was reserved for further consideration, as was the appropriate grading of stenographers and machinists. The employer’s proposal for the introduction of a clerical assistant classification was not adopted.

  • Re Municipal Officers’ (Melbourne and Metropolitan Board of Works) Award [1976] 175 CAR 1044
    Australian Conciliation and Arbitration Commission: Commissioner Matthews

    The implementation of equal pay for female officers was achieved by consent, except in relation to allowances for educational qualifications currently applying to administrative officers, which the Municipal Officers’ Association claimed should also be paid to administrative assistants.

    The payment of qualifications allowances to administrative assistants was opposed by the MMBW which argued that no minimum educational qualification was required for appointment to the administrative assistants’ scale, and that their work was considered simple and routine, including filing, transporting documents, answering simply queries, updating records etc. and was not based on the career concept of administrative officers (generally male).

    The Municipal Officers Association’s claim was refused, based on the arguments of the MMBW.

  • Universities (Equal Pay) Case (1980) AR 616
    NSW Industrial Commission: Cahill, Watson and Dey JJ

    This was an application made by the Public Service Association (PSA) of NSW to integrate into the clerical scales at the UNSW the two separate keyboard scales established for stenographers and typists. Although women had now been admitted to the general clerical scale, the separate salary scales for stenographers and typists were perceived as ‘female’ scales. Since many women classified as keyboard operators were carrying out administrative and clerical duties equivalent to those of general clerical officers, the principles contained in the State Equal Pay Case had not been properly implemented. One single pay scale, it was contended, would rectify the anomalous situation of many of the female employees.

    This case had come before Macken J at first instance and he had dismissed the application and held that the scales were correctly set, reflecting the skills of the employee. This case was the appeal of that decision. The issues were whether the occupation being compared was “predominantly female”, and whether the rates were depressed by reason of this fact.

    The Commission held the separate (and lower) scales for the stenographer and typists were not based on the sex of the employees; instead they were based on “work-value considerations”. The Commission held that the principles of equal pay did not require the integration of all clerical salary scales at the university. However, they held that the salary adjustments made in 1973 to implement equal pay were inadequate. The Commission allowed the parties to confer and then accepted the agreed increase of 4.5 per cent for all adult classifications, with proportionate increases for juniors.

    Feminist commentary - negative

    This case “illustrates the difficulty in implementing formalised changes in the societal perception of the value of work done by women, for no new techniques have been developed to deal with the radical concept of ‘equal pay for work of equal value’.”
    ...
    “In the absence of any tools of comparison, the concept of ‘work of equal value’ is left entirely at the mercy of unquestioned and unexamined individual biases in the Universities (Equal Pay) Case where the work of male clerical workers was accepted as per se superior to that carried out by female clerical workers.” (Thornton 1981, pp. 477, 481)

  • Tasmanian Municipal Officers case (1981) 265 CAR 17
    Australian Conciliation and Arbitration Commission: Deputy President Isaac

    The Municipal Officers Association claimed that equal pay had not been properly implemented, as there were still separate male and female classifications in the relevant Tasmanian awards, unlike other state awards for municipal officers. The Commissioner dismissed the case, saying that a substantial pay rise had already been achieved under the equal pay decision and was evidence of equal pay implementation. A work value assessment would be needed if any comparison were to be made with other states.

    Feminist commentary - negative

    “But what then is the recourse for women working under awards where the 1972 principle was applied perhaps incorrectly?...The only equal pay case of this type (i.e. the present case) so far does not hold much hope for future cases.” (Short 1986, p.331)

  • Re Municipal Officers’ (South Australia) Award 1973 [1984] 295 CAR 49
    Australian Conciliation and Arbitration Commission: Deputy President Isaac

    This decision discussed the revaluation of work of base level child care workers. The Commission refused to value work by applying the 1972 equal pay principle, despite evidence that it had never been properly valued, on the basis that to apply the 1972 equal pay principle would override the National Wage Principles and open up the prospect of flow-on to awards covering the bulk of child care workers.

  • National Wage Case [1983] 291 CAR 3
    Australian Conciliation and Arbitration Commission: Moore, Williams, Maddern and Cohen JJ, Deputy President Isaac, Acting Public Service Arbitrator Booth, Commissioner McLagan

    The National Council of Women, the Union of Australian Women and the Women’s Electoral Lobby contended that the implementation of equal pay in female occupational areas had not been accompanied by proper work value exercises.

    The Commission refused to adopt the proposal that there should be provision for re-evaluation of work in female occupational areas as individual awards came up for variation or through the anomalies or inequities procedure. It held that such “large scale” work value inquiries would be inconsistent with the centralised system of wage fixation.

    Feminist commentary - negative

    “The Women's Electoral Lobby's request that in any centralised wage-fixing system the Arbitration Commission should provide for a re-evaluation of ‘women's work’ through proper work value exercises pursuant to the 1972 principles, was rejected…The ACTU was thus caught between its commitment to comparable worth and its commitment to the Prices and Incomes Accord. Centralised wage fixing had been introduced in response to the Accord, and the Commission had suggested that within that centralised system, the 1972 principles had no place. It was necessary, then, to argue that there was no inconsistency between the 1972 equal pay principles and the 1983 wage fixing principles.” (Hunter 1988, p.166)

  • Science (Australian Government Employment) Award (1985) 299 CAR 533 (“The Therapists’ Case”)
    Australian Conciliation and Arbitration Commission: Ludeke and Staples JJ, Commissioner Caesar

    “In September 1984 the ACTU adopted an Action Program for Women Workers, based on the policy developments of the previous year, and in it set out strategies for the next two years to improve the position of females in the labour market. The strategies included the intention to pursue a comparable worth claim before the ACAC.” (Burton 1991, p.133)

    Physiotherapists, occupational therapists and speech pathologists in the Australian Public Service argued that they should be paid the same rate as male-dominated occupations classed as scientists. Scientists were covered by the Science (Australian Government Employment) Award 1985, and were paid considerably more than therapists, who were covered by the Therapists, Professional Officers’ Association, Australian Public Service Award 1985. The therapists proved that their work was of equal value to the work of the scientists: their qualifications were comparable, as was the application of scientific principles in day-to-day work and the factors of work environment, level of autonomy, responsibility, accountability and complexity of work.

    In the light of this, the Full Bench determined that there was no longer any justification for excluding the therapists from the science group of employees. The reclassification of therapists to the Science Award resulted in substantial salary increases.

    Feminist commentary

    Neutral assessments

    “The statement of the Full Bench makes no reference to the non-application of the 1972 Equal Pay Principle, so that the case became, in effect, a consideration of the implications of the apparent changes in the nature of the educational qualifications gained by therapists since about 1973.” (Burton 1991, p. 139)

    Positive assessments

    “The potential of the [anomalies] principle was … successfully utilised by the union in the APS Therapists Anomalies Case in 1985 to advance its first arbitrated pay equity claim for professional women applying the general principles of comparable worth.” (Rafferty 1994, p.454)

    Negative assessments

    “The constraints imposed by the anomalies and inequities process (including its secretiveness), the time taken to resolve pay equity claims under the extended anomalies and structural efficiency principle process, and the perception that the process tended to discourage rather than facilitate claims for pay equity, made it the subject of criticism from unions and activists women’s groups alike.” (Rafferty 1994, p.458)

  • Private Hospitals and Doctors’ Nurses (ACT) Award 1972 (1986) 13 IR 108 (“The Comparable Worth Case”)
    Australian Conciliation and Arbitration Commission: Maddern and Cohen JJ, Commissioner Bain

    The ACTU, acting for the Royal Australian Nursing Federation and the Hospital Employees Federation of Australia, sought to have the Federal Commission adopt the doctrine of comparable worth in interpreting the 1972 equal value principle in proceedings to vary the Private Hospitals and Doctors’ Nurses (ACT) Award. Nurses as a group had not received any benefits from the 1972 principle due to the difficulty in establishing comparators that would be acceptable to the Commission.

    The principal issue for nurses was not that female nurses were being paid less than their male comparators or that nurses under one award were earning less than nurses under another award. The ACTU’s contention was that nurses received less than male workers engaged in classifications that the unions viewed as having comparable value to nursing classifications. In opposing the ACTU claim, the relevant employers, the Confederations of Australian and ACT Industries, directed their argument to the scope of the comparison that the ACTU was claiming – “the 1972 decision was only intended to be implemented in individual awards which contained different rates of pay for males and females performing the same work, or in awards where the rates for females were different from those pertaining to the same work performed in other awards.”

    The Commission ultimately found against the ACTU because they found the 1972 principle needed to be decided through Principle 6 (Anomalies) of the Wage Fixing Principles. This was because the applications “carry great potential for undermining the current centralised wage fixing system”.

    Feminist commentary - neutral

    “[T]he Commission’s ruling was not sympathetic to the concept of comparable worth. ... The Commission did, however, affirm that the 1972 decision was still available to be implemented... By stating this, the Commission ensured that both sets of principles – the wage-fixing and the 1972 equal pay principles – were able to be applied.” (Burton et al 1987, p.xiii)

  • Private Hospitals and Doctors’ Nurses (ACT) Award 1972 (1987) 20 IR 420 | austlii
    Australian Conciliation and Arbitration Commission: Alley and Cohen JJ, Commissioner Bain

    Further to the previous case, the Royal Australian Nursing Federation (RANF) through the ACTU brought a claim before the Anomalies Conference in March 1986. After making observations in respect of each of the circumstances relied upon by the ACTU, the President stated "[a]n arguable case exists and that the rates for nurses in the above awards and determinations should be referred to a Full Bench pursuant to s 34 of the Act.”

    Proceedings before the Commission again commenced on 29 September 1986 and concluded on 4 March 1987.

    The claims before the Commission concerned the wages, allowances and career structure of nurses whose conditions of employment are regulated by federal awards, with the exception of registered nurses employed by the Australian Government in Victoria. It was the contention of the RANF that existing wage scales for nurses did not reflect their professional standards and did not provide adequate career opportunities in the area of clinical nursing. It was submitted that the education, training and duties of nurses were such that they should receive rates equivalent to those of other professional employees within the health care industry.

    This case provided the Commission with an opportunity to prescribe a national scale which could bring stability into the fixation of nurses’ wages throughout Australia.

    The Commission found that when all of the circumstances surrounding the claims were examined there was a problem of a special and isolated nature which constituted an anomaly within the meaning of principle 6.

    The Commission ordered an increase in the rates of pay for nurses and found that in respect of nurses in the ACT and the NT and in DVA hospitals in New South Wales, South Australia, Western Australia and Tasmania there had been changes in the nature of the work, skill and responsibility which constituted a significant net addition to work requirements within the terms of principle 4 and that such changes were of a similar order to those relied upon in decisions of State tribunals. The Commission approved the concept of one national scale and career structure for nurses.

    Commission considerations

    The Commission commented that “[a]ll of the indications however point to a situation of no positive application of the 1972 decision in any of the consent settlements in the Commonwealth area. An examination of wage rates within the ACT, for example, indicates no advance since 1972 by nurses as compared with male tradesmen. In our opinion all that has happened is that differences between male and female rates within nurses awards have been eliminated, but the original sex bias caused by assessment on the basis of a predominantly female rate remains.”

    Feminist commentary - neutral

    “In the nurses’ case the decision to award pay increases was related to so many factors that it is impossible to determine the proportion which might be attributed to an adjustment on the grounds of non-application of the 1972 Equal Pay Principle. And it is clear, in the decision, that the amount of pay increase was very much a matter of matching what had already been determined by State tribunals.” (Burton 1991, p.138)

  • National Wage Case August 1988 (1988) 25 IR 170 | austlii
    Australian Conciliation and Arbitration Commission: Maddern J, Deputy Presidents Keogh and Hancock, Commissioners Sweeney and Lear

    The National Pay Equity Coalition submitted that none of the wage fixing principles devised over the past 15 years had facilitated the implementation of the equal pay principle.

    The Commission introduced a new “structural efficiency principle”’ under which awards were to be restructured to implement measures to “improve the efficiency of industry and provide workers with access to more varied fulfilling and better paid jobs”. Among the measures to be considered were (for employees generally):

    • Establishing skill-related career paths which provide an incentive for workers to continue to participate in skill formation;
    • Creating appropriate relativities between different categories of workers within the award and at enterprise level;
    • Ensuring that working patterns and arrangements enhance flexibility and the efficiency of industry;
    • Including properly fixed minimum rates for classifications in awards, related appropriately to one another;
    • Addressing any cases where award provisions discriminate against sections of the workforce.

    The new principle did not directly address the argument made by NPEC, although some elements could be used to promote equal pay.

  • National Wage Case April 1991 [1991] 4 CAR 300/91 | austlii
    Australian Industrial Relations Commission: Maddern J, Deputy President Keoghs and Hancock, Commissioners Connell and Oldmeadow

    The Commission requested submissions on the ramifications of Accord Mark VI if adopted. (The following year saw the introduction of Accord Mark VII and the proliferation of enterprise bargaining).

    The Australian Federation of Business and Professional Women intervened to urge the Industrial Relations Commission to convene a national work skills value inquiry, to review all aspects of the evaluation of a skill. They also opposed the implementation of the Accord Mark VI in relation to enterprise bargaining, on the ground of its potentially adverse effects on women.

    The Commission rejected their proposal. It accepted that enterprise bargaining would “place…at a relative disadvantage those sections of the labour force where women predominate” and suggested that industrial parties should pay greater attention to this point in their future consideration of enterprise bargaining.

    Feminist commentary

    Neutral commentary

    “The anomalies and inequities principle was dropped from the Commission’s guidelines in the April 1991 National Wage Case decision, with future claims based on alleged undervaluation of work typically performed by women to be dealt with through the commission’s normal processes, including the special case provisions.” (Rafferty 1994, p.458)

    Negative assessments

    “The Commission, however, rejected [the AFBPW’s] proposal, preferring to leave the restructuring process to negotiation between the industrial parties in each case. Not surprisingly then, the outcomes of award restructuring were less impressive than the aspirations.” (Hunter 2000, p.13)

  • Family Court Counsellors’ Case 1342/1992 | austlii
    Australian Industrial Relations Commission: Commissioner Smith
    Family Court Counsellors’ Case 55/1993 | austlii
    Australian Industrial Relations Commission: Commissioner Smith
    Family Court Counsellors’ Case 104/1993 | austlii
    Australian Industrial Relations Commission: Deputy President MacBean

    Because there were three separate decisions cited (1342/1992; 55/1993; 104/1993), I split them up into those three decisions and found the austlii records of all three. As a result of that, looking at 104/1993, it does not seem to be on family court counsellors – could there be a mistake in the citation?

    On behalf of the Family Court Counsellors, the Professional Officers’ Association claimed that the classification structure in use reproduced historical pay inequalities between male and female dominated professions. The Association won the case, with the result that all people employed as Counsellors within the Family Court were reclassified upwards.

    Evidence was tabled showing that 82 per cent of the female-dominated counsellor profession was compressed into the lowest two levels of the five level classification structure. In comparison, 44 per cent of engineers and scientists employed by the Department of Defence and 34 per cent of science professionals in the Department of Industries and Energy were located in the lowest two levels of their structures. The Association argued that this classification compression of female-dominated professions was discriminatory.

    “It is also likely that the commission recognised that the commitment of activist women’s groups to the goal of economic equality for women would ensure that the case would not go unnoticed. If this was so, the commission was correct. By November 1992 such groups, including the Australian Federation of Business and Professional Women, the Women’s Electoral Lobby and the National Pay Equity Coalition, had begun to exert pressure on the government in an attempt to ensure support for the counsellors’ claim, and the commission was made aware of this activity. As both the AFBPW and WEL had a history of intervention in national wage cases, their intervention in the Family Court Counsellor’s Case presided over by a national wage bench could be relied upon, and in fact, did occur.” (Rafferty 1994, p.463)

    Feminist commentary - neutral

    “One can only speculate as to the commission’s reasons for singling out the Family Court Counsellors Case from the list of thirty-five part heard matters before the commission at the time of certification of the agreement… However, it may be that the commission had a genuine public interest concern about ongoing pay discrimination against women as a social justice issue and wanted to highlight the point that this was an area of potential disadvantage under enterprise bargaining.”
    ...
    “Certainly the case heightened the awareness of activist women’s groups, among others, to the minimal nature of the legislative protections.”

    “Experience gained from the Family Court Counsellors Case highlighted the need to seek changes to the legislation. The legislative protections needed to be strengthened to ensure that persons covered by a proposed agreement were fully informed of the terms of the agreement and the consequences of certification of the agreement. Confirmation was also required that women’s occupations were not locked out of access to the commission for the purposes of securing equal pay for work of equal value by the terms of an agreement.”
    ...
    “the case had a lasting impact by promoting the legislative changes…including a legislative right of access to equal remuneration for work of equal value.” (Rafferty 1994, 463-65)

1990s - 2000s – The federal equal remuneration provisions

In 1993 an equal remuneration provision was introduced into the Industrial Relations Act 1988 (Cth), which allowed women workers to bring equal remuneration claims directly before the Industrial Relations Commission. A series of test cases ensued, which exposed flaws in the drafting of the provision and resulted in restrictive interpretations which made the establishment of an equal remuneration case extremely difficult. Ultimately, few claims were brought and the provision failed in its r