applicant aggravated damages under s 46PO(4)(d) based on a respondent's conduct subsequent to the filing of an AHRC complaint. I do not read that statement in Wotton as going that far. The rest of the paragraph goes on to cite, as examples of the proposition, Elliott v Nanda (see above) and Houda v New South Wales [2005] NSWSC 1053, both cases in which aggravated damages were awarded on the basis of the way in which the respondents conducted their part of the proceeding. I read the statement above as going no further than either authority cited. That conclusion is fortified by the fact that the present question of whether aggravated damages were available for conduct subsequent to the AHRC complaint was not live in Wotton.
243 In Hughes v Hill, the Full Court upheld an award of aggravated damages by the primary judge in a sexual harassment claim: at [59] (Perram J, Reeves and Collier JJ agreeing). Aggravated damages had been awarded to reflect the additional harm from threats made by the appellant to prevent the respondent complaining of sexual harassment, and the manner in which he conducted his defence at trial, which included blaming the respondent for his conduct due to her manner of dress and alleging she had been sexually abused as a child in order to blacken her name: at [54]–[64].
244 In Kaplan, Mortimer CJ affirmed the proposition that aggravated damages were available under s 46PO(4) where racial discrimination under s 9(1) of the RDA had been made out: at [1759]–[1789]. The proceeding involved findings that a state school principal had failed to take steps to address high levels of antisemitic bullying. Aggravated damages were awarded to one of the applicants, a former student, for the school principal's failure to take steps to ensure his safety following an assault at a park, which was found to have increased the applicant's hurt: at [1787]–[1789], citing New South Wales v Ibbett [2006] HCA 57; 229 CLR 638 at [35]. The cited portion of Ibbett, for completeness, is authority for no more than the orthodox proposition that, where the conduct giving rise to a tort increases the hurt to the subject of the tort, aggravated damages may be available. Kaplan does not state whether the principal's failures were included in, or occurred after the lodging of, the complaint to the AHRC that gave rise to the proceeding.
245 Taylor involved successful claims by the applicant of sexual harassment and victimisation by the respondent, in contravention of ss 28B(2) and 94 of the SDA, as well as breach of the applicant's employment contract. Katzmann J considered that it was well established that s 46PO(4) empowered the Court to make awards of aggravated damages, citing Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 23–40 (Lockhart J) and 282 (French J), Ewin v Vergara
