two, let alone to link them in a way that ties the conduct to the proceeding so that the damages sought in this proceeding have been shown to be aggravated in some way. It has been advanced in substance as a general claim for hurt feelings arising from nonacceptance of her status as a transgender woman.
- (c) The evidence of Ms Tickle makes a global claim for damages and does not sufficiently isolate the effect of this conduct, nor make it at all clear how it has increased the hurt she has suffered. There is an insufficient substratum of facts established by evidence to demonstrate the aggravation of loss asserted.
(d) An apology
278 Ms Tickle also seeks a published written apology from the respondents. It is well-recognised that s 46PO(4)(b) empowers the Court to order respondents to make an apology: Wotton at [1552]; see also Kaplan at [1791]–[1794]. Section 23 of the Federal Court of Australia Act 1976 (Cth) provides an alternative basis for such orders: Wotton at [1552].
279 This Court has generally been reluctant to order apologies in discrimination cases where they would be unavoidably insincere: see Kaplan at [1796]–[1797]; Wotton at [1584] and the analysis of Mortimer J (as her Honour then was) of the authorities at [1553]–[1583]; Jones v Toben [2002] FCA 1150; 71 ALD 629 at [106]. That hesitation largely rests on the fact that the purpose of remedies under s 46PO(4) is to compensate the applicant: Kaplan at [1794]; Wotton at [1584]. An insincere apology would hold little if any benefit in rectifying the hurt to its recipient, while effectively punishing its maker by ordering them to say something they do not believe.
280 Courts have held apologies to be inappropriate where findings that discrimination has occurred are sufficient to recognise the harm done by the respondents: see Poniatowska v Hickinbotham [2009] FCA 680 at [324]–[325]. In Kaplan, for example, Mortimer CJ ordered an institutional apology by the State of Victoria for unlawful discrimination by a state school because it could be given sincerely and would be meaningful for the applicants: at [1796]. Her Honour declined, however, to order the principal of that school to apologise as such an apology would be insincere. The principal's evidence had made clear that he did not accept failings on his part, and that he did not believe he had acted unlawfully. In the circumstances, the Court's findings of fault were a sufficient vindication of the applicant's rights: at [1797].
