253 These circumstances can readily be distinguished from the case in Elliott v Nanda, in which Moore J awarded damages on the basis of a respondent's failure to appear before a hearing of the complaint before the HREOC. That case, however, arose from the respondent's appeal of the HREOC's adverse findings against him. The logic of the award of aggravated damages was that he had failed to take earlier legitimate steps to contest the applicant's complaint, causing significant additional delay to the resolution of the complaint. Importantly, his Honour was satisfied that the delay had caused additional stress and mental anguish to the applicant: at [185]. The paucity of the evidence of loss means I am unable to make similar findings in the present case.
(iii) Refusal to reinstate Ms Tickle's access to the Giggle App
254 In the alternative, the applicant submits that the refusal to reinstate Ms Tickle's access after she filed her complaint grounds a claim of aggravated damages. However, no part of Ms Tickle's affidavit, being the only evidence of loss or damage, mentions that as a basis for the loss or damage she suffered. There is no factual basis for a finding on the evidence. It was a bare submission without evidentiary support.
(iv) Subsequent comments by Ms Grover and her supporters
255 Unlike grounds (a) and (b), Ms Tickle does refer to the comments made by Ms Grover and her supporters as causing her loss or damage: see [39]–[41] of her affidavit reproduced at [217] above.
Messages and posts by supporters
256 Ms Tickle annexes three messages sent to her on Facebook by a person or persons other than the respondents, as well as several posts about her on X and Facebook by other persons. Many of these messages and posts are plainly offensive. They go much further than expressing, in civil terms, a view on the relationship between sex and gender. Many are personal attacks on Ms Tickle, questioning her motivations for transitioning gender, her appearance and speculating on her smell and mental stability. Some include cartoon images that mock her appearance and include offensive jokes about her transition. Almost all such messages and posts refer to her as a man.
257 In her affidavit, Ms Tickle asserts, without any details or particulars, or other foundation, the conclusion that Ms Grover's public statements about herself and the case had led to and indirectly incited these communications. The difficulty with this bald assertion is that there is
