240 at [179]–[184] (Moore J); Clarke v Nationwide News Pty Ltd [2012] FCA 307; 201 FCR 389 at [347], [349] (Barker J); Ewin v Vergara (No 3) [2013] FCA 1311; 307 ALR 576 at [676], [678] (Bromberg J); Wotton at [1737] (Mortimer J); Hughes (t/as Beesley and Hughes Lawyers) v Hill [2020] FCAFC 126; 277 FCR 511 (Hughes v Hill) at [61]–[64] (Perram J, Reeves and Collier JJ agreeing); Kaplan at [1760]–[1763] (Mortimer CJ); Taylor v August and Pemberton Pty Ltd [2023] FCA 1313 at [523]–[524] (Katzmann J).
235 Ms Tickle seeks those additional damages on the basis of:
- (a) the respondents' refusal to attend conciliation proceedings held by the AHRC;
- (b) the respondents' refusal to reinstate Ms Tickle's access after becoming aware that she is a transgender woman following the AHRC complaint;
- (c) a number of public comments made by Ms Grover about Ms Tickle since the filing of her AHRC complaint, amounting to "a public campaign over two years of persistently belittling Ms Tickle", which she claims also caused "online hate" from other persons towards her;
- (d) the respondents' refusal to apologise to Ms Tickle; and
- (e) the respondents' conduct at trial, including instructing counsel to plead that Ms Tickle is a man, and to refer to her with male pronouns in written and oral submissions, as well as Ms Grover laughing at a demeaning caricature of Ms Tickle while giving evidence.
236 Basis (d) was averted to in Ms Tickle's amended statement of claim, but was not pressed in her submissions, and there is no evidence of loss or damage that supports it. Basis (c) was not noted as a ground for aggravated damages in her originating application or amended statement of claim, though the respondents raised no objection to it being raised as a ground for aggravated damages in her closing oral submissions.
237 Aggravated damages have traditionally been awarded in tort for additional injured feelings of the applicant incurred by the way in which the respondent committed the tort: see, Cassell & Co Ltd v Broome [1972] AC 1027 at 1124 (Lord Diplock). They have also been awarded in defamation proceedings on the basis of the way in which the respondent conducted themselves at trial, where that conduct was characterised as not being bona fide, justifiable or proper: Triggell v Pheeny (1951) 82 CLR 497 at 514 (Dixon, Williams, Webb and Kitto JJ). In Triggell, the High Court upheld a direction by the primary judge that the jury could consider whether the pressing of a defence of truth by the defendant was aggravating in circumstances
