concluding that it should not award aggravated damages: Greenhalgh v National Australia Bank Ltd (1997) EOC ¶92-884; and
- (c) a decision of the Queensland Supreme Court to uphold an award of aggravated damages by the Queensland Anti-Discrimination Tribunal in an age discrimination case brought under ss 7(1)(f) and 14(1)(b) of the Anti-Discrimination Act 1991 (Qld), on the basis that the defendant's method of cross-examination, which involved suggestions that the plaintiff was looking for money because he was out of work, where the applicant had suffered additional distress as a result of the defendant's method of cross-examination: McIntyre v Tully (1999) 90 IR 9 (Atkinson J).
240 In Ewin v Vergara, an extreme sexual harassment case brought under the SDA resulting in a large award of damages, the applicant sought aggravated damages, claiming that there was always going to be a component in a case like that in which general damages in the discretion would not sufficiently compensate "the horror, the dislocation, the disruption of life, the smell of flashbacks, the suicide attempts, the change in lifestyle": at [677]. Bromberg J considered that aggravated damages were compensatory in nature and therefore available under s 46PO(4)(d), and that they could be available in circumstances where a respondent had increased the hurt to the applicant through their conduct of proceedings: at [678]. However, his Honour found that the grounds on which aggravated damages were sought were already reflected in general damages awarded, declining to award aggravated damages on the basis it would amount to double dipping for the applicant: at [678]. It follows that even serious conduct causing substantial hurt will not necessarily result in the awarding of aggravated damages.
241 In Wotton, Mortimer J (as the Chief Justice then was) considered whether aggravated damages were available where contraventions of s 9(1) of the Racial Discrimination Act 1957 (Cth) (RDA) had been made out. Her Honour noted that the weight of authority supported the view that awards of aggravated damages were available under s 46PO(4) as they serve a compensatory purpose (at [1737]), but dismissed the claim on bases that are not relevant to the current proceeding.
242 In Mortimer J's discussion of the availability of aggravated damages in Wotton, her Honour noted that in some cases, the aggravation comes not from conduct directly associated with or following on from the contravening conduct, but from subsequent conduct that has the same effect: [1733]. In oral submissions in this proceeding, Ms Tickle relied on that statement (as quoted in Kaplan at [1762]) as authority for the general proposition that courts may award an
