and Hughes v Hill: at [526]. Her Honour noted that aggravated damages could be awarded to an applicant whose distress was made worse by the respondents' conduct after the wrongful act or acts are committed, and where that conduct was improper, unjustifiable or lacking in bona fides: at [524]–[525], citing Triggell at 514. Like Mortimer J's statement in Wotton, I read that statement as going no further than the authority cited, which provides only that an award of aggravated damages may be available for a respondent's conduct in the proceeding (which has already been taken into account in relation to general damages). That is fortified by the nature of the award of aggravated damages in that proceeding, which was made on the basis of the respondent's intimidatory and unjustified legal response to the applicant's AHRC complaint, which included a suggestion that the applicant had manipulated and been flirtatious with the respondent: at [537]–[539].
246 What is really notable about all of the cases discussed above is that they are a far cry from what has happened to Ms Tickle. As considered below, no real attempt was made to marry the conduct relied upon for aggravated damages to the conduct relied upon to establish unlawful discrimination. In light of that, two further observations may be made about awards of aggravated damages in discrimination proceedings.
247 The first observation is that aggravated damages are not an unbounded path to seeking compensation for all harmful conduct by the respondents that falls outside the proceeding that has been brought, even if peripherally related to them. There must be some kind of nexus between the unlawful discrimination and the further hurt arising from that discrimination for which the aggravated damages further compensates. That nexus will be clearest where the further hurt arises from the way in which the unlawful discrimination occurred.
248 The nexus may arise because the actions of the respondent at trial, or perhaps in relation to the conduct of proceedings (see Taylor, especially at [538]–[539]), cause further harm to the applicant. In Taylor, which involved sexual harassment and victimisation claims brought under the SDA, aggravated damages were awarded on the basis of improper, unjustifiable and non-bona fide accusations by the respondent against the complainant in the course of the trial and in letters from the respondent's solicitors to the complainant's solicitors: at [525], [538]–[539]; see also the Full Court's upholding of aggravated damages in similar circumstances in Hughes v Hill at [57]–[64]. Those accusations bear a clear link to the nature of the unlawful discrimination found.
