where it was open to the jury to conclude that the defendant did not honestly believe in that defence: Triggell at 515–516. Such a stance aggravates the impact of the false defamatory imputation, so is tied to the tortious conduct by that nexus. However, care must be taken in applying tort reasoning to a statutory cause of action.
238 Reasoning by analogy with tort, this Court has awarded aggravated damages in several discrimination cases on the basis of the way the respondent conducted themselves at trial, or in the lead up to trial, citing the requirements in Triggell at 514; see also Taylor at [524]–[525] and Elliot v Nanda at 297, [180], [182]. Further, Hughes v Hill, which does not cite Triggell directly, at [61] cites Ewin v Vergara at [678] and Clarke v Nationwide News at [349], both of which cite Elliot v Nanda at 297.
239 In Elliott v Nanda, Moore J was asked to consider whether aggravated damages were available for a respondent's failure to appear before a hearing of the complaint before the HREOC (as the AHRC was then named), where that failure had delayed resolution of the complaint by a considerable period, resulting in additional stress and mental anguish for the applicant: at [184]. His Honour was satisfied they were, ordering $5,000 in aggravated damages. In coming to this conclusion, Moore J relied on authority from Triggell at 514, described above, at [182]. His Honour also discussed the wide variety of matters which may ground the decision to award aggravated damages in anti-discrimination law cases, referring to a number of court and tribunal decisions:
- (a) a Queensland Anti-Discrimination Tribunal decision, Whittle v Paulette (1994) EOC ¶92-621, to award $10,000 each to two complainants who had alleged sexual harassment on the part of the first respondent, in contravention of s 119 of the Anti-Discrimination Act 1991 (Qld), where the Tribunal had noted that the first respondent was arrogant and aggressive in the witness box and insensitive to the effect of his treatment of the complainants: at 77,306;
- (b) a HREOC decision, where a complainant had claimed aggravated damages in relation to her sexual harassment complaint on the basis that senior staff in her workplace had not taken her complaints seriously. There, the respondent had made several offers of settlement to the complainant, including payment of the costs to date of the proposed settlement, and the applicant had not been required to establish the facts of her alleged sexual harassment or the respondent's vicarious liability, with the Commission
