249 The second observation is that it remains unclear how s 46PO(3), which requires unlawful discrimination alleged in applications to this Court to be the same as, or in substance the same as, those contained in the applicant's original complaint to the AHRC, affects the award of damages founded on conduct that occurred subsequently to the filing of the AHRC complaint. As noted above, the Court's power to award compensatory damages is statutory, created by s 46PO(4)(d) which allows an award of damages to be made only where the Court has found unlawful discrimination, as limited by s 46PO(3). None of the authorities in which aggravated damages have been awarded have addressed that question. Neither party provided submissions related to that question.
250 I draw from the authorities a number of minimum threshold requirements before the present claim for aggravated damages could be entertained. There would need to be:
- (a) a compelling evidentiary basis for attributing the conduct said to give rise to the claim for aggravated damages to either or both respondents;
- (b) a clear nexus between that conduct and this proceeding, which in turn must be tethered to the complaint to the AHRC which gives rise to this Court's jurisdiction; and
- (c) clear evidence of separate or additional harm caused by that conduct.
251 In this case, none of those three criteria are met, any one of which failure would be fatal to the claim for aggravated damages. Moreover, as detailed below, the paucity of the evidence chosen to be advanced by Ms Tickle ended up making this proceeding a poor vehicle to question the outer bounds of the Court's power to award damages for subsequent conduct under s 46PO(4)(d). Each aspect of the claim for aggravated damages is addressed below.
(ii) Refusal to attend AHRC conciliation proceedings
252 No relevant part of Ms Tickle's affidavit, reproduced at [217] above and which is the only evidence of loss or damage suffered by her, makes any reference to harm caused by the respondents' refusal to attend AHRC conciliation proceedings. Proof of the necessary nexus has not even been attempted. There is no apparent basis on the evidence from which I can reasonably infer that the refusal caused any such loss or damage. Ms Tickle does not suggest in her evidence that such a basis exists. The respondents promptly indicated to the Commission that they were unwilling to participate in a conciliation proceeding, leading to the prompt institution of proceedings in the Federal Circuit Court by Ms Tickle.
