did not resile from those accusations in cross-examination, insisting that she did not know exactly how Ms Tickle had gotten her number. That was disingenuous.
271 These comments however, while hurtful and perhaps even defamatory of Ms Tickle to a limited degree, lacked a sufficient nexus with the unlawful discrimination found. They were in the nature of an attack on Ms Tickle's character, rather than arising from or as an extension of the indirect discrimination I have found occurred.
(v) Conduct at trial
272 There is one aspect of the aggravated damages claim, adverted to in the award of damages, but not otherwise addressed so far, that is sufficiently tied to the conduct of the proceedings to evade the limitations in s 46PO(3), and not to be without some evidentiary support. In Ms Tickle's closing submissions forceful submissions were made as to what was described by senior counsel as the persistent misgendering of Ms Tickle by the respondents, with their counsel referring in written and oral submissions to Ms Tickle with male pronouns, and by pleading that she was a man. Reference was also made to Ms Grover laughing, in the course of her oral evidence, at a demeaning caricature of Ms Tickle. Counsel submitted that this leads to the conclusion that the distress, embarrassment and hurt experienced by Ms Tickle, in being excluded from a women only space as a woman, has been amplified and compounded by this conduct.
273 As I have noted, the authorities establish that the conduct of a respondent at trial may establish the requisite nexus between the subsequent conduct and the applicant's claim in order to give rise to award of aggravated damages. The respondents' conduct in this case furthered the harm caused by the indirect discrimination found, namely in continuing to treat her as a man, though now with clear intent to do so.
274 The requirement remains, however, that such conduct not be bona fide: Trigell at 514; see discussion above at [237]–[238]. In this case, nothing indicates that the respondents are not expressing a genuine, if (as I accept) hurtful, belief that Ms Tickle is a man. No submissions were made by Ms Tickle's counsel to the contrary. While some of the ways in which the respondents expressed this belief could have been avoided, and in that sense were gratuitous, I am not satisfied that on a preponderance of the authorities that that is enough to found an award of aggravated damages.
