A Sunday night thread about sexual harassment litigation, costs & the Morrison Government's unacceptable failure to accept key recommendations from @Kate_Jenkins_'s R@W report (brought about because I'm preparing my slides for a lecture to @Dr_FaithG's @ANU_Law class this week)..

The law of costs is boring in theory but SUPREMELY IMPORTANT in practice. Let me give an example: Rebecca Richardson was sexually harassed while working at Oracle in 2008. She sued, and won, and was awarded 18k in general damages.

Unfortunately for Richardson, Oracle had made a higher settlement offer, which she refused. Accordingly, on the basis of the court rules around settlement, Oracle - despite losing - were awarded their legal fees on an indemnity basis from mid-litigation onwards.

Quick refresher for the non-lawyers: in ordinary litigation, the losing party has to pay the winning party's legal fees. Typically this is on a party/party basis (about 70% of actual costs), sometimes on a solicitor/client basis (~90%) & rarely on an indemnity basis (100%).

Oracle are a big company. They were using top tier lawyers - Baker McKenzie. So Richardson, despite winning her claim that she had been harassed at work + Oracle had not done enough to prevent it, was forced to pay her own legal costs & 100% of Oracle's from mid-litigation onward

That's $$$$$$. As the trial judge recognised: '[T]he final outcome of these proceedings, in financial terms at least, will probably be devastating for Ms Richardson both financially and personally ... That will be a very high price to pay for her victory'

This is significant because not all jurisdictions have ordinary costs rules. Under the Fair Work Act, for example, which govern things like unfair dismissal, parties bear their own costs (except in unusual circumstances). That means a plaintiff doesn't face a large costs risk.

But Sex Discrimination Act does not have such a costs protection. This is a barrier to harassment litigation & encourages settlement. @Kate_Jenkins_ noted this in R@W, expressing concern re 'negative impact on access to justice, particularly for vulnerable members of community'

Accordingly, she recommended that the Fair Work Act-style costs protections be inserted in the SDA. This is a totally reasonable, sensible recommendation (although tbh PID Act costs rules would be a better model. The FWA already has carve-outs for vexatious/unreasonable litigants

Yet rather than commit to this sensible reform option, Govt only agreed in principle: '[Govt] notes that the determination of costs orders is already at the discretion of the court, but will review cost procedures in sexual harassment matters to ensure they are fit for purpose'

WE DON'T NEED MORE REVIEWS, WE NEED TO MAKE SEXUAL HARASSMENT LITIGATION A VIABLE REMEDY FOR TARGETS OF HARASSMENT. The Respect@Work report offered a simple, technical measure that would materially improve the SDA & the Govt said: 'We'll think about it.'

Now, thankfully for Ms Richardson, it all ended well. Faced with a huge costs burden, she appealed & set a major precedent with the Full Federal Court raising the general range for harassment damages fivefold (she was awarded $100k). Richardson became a landmark case.

In a twist of irony, Oracle then resisted having to pay Richardon's costs on an indemnity basis (because she had also offered to settle) on the grounds that the appeal judgment was unforeseeable. The FCFCA said no; awarding costs to Richardson on indemnity basis from mid-lit on.

'The litigation landscape is littered with the wreckage of unforeseeable events and unexpected circumstances.' Lol.

Good for Richardson. But @Kate_Jenkins_ offered a concrete reform proposal that would avoid future harassment complainants having to face major costs risk under the SDA, and the Morrison Govt has not accepted the recommendation. That is just not good enough.

Richardson, its impact and the costs barrier faced by targets of sexual harassment are all discussed in-depth in @MaddyCastles, Tom Hvala and my new-ish piece in the Federal Law Review https://journals.sagepub.com/doi/full/10.1177/0067205X21993146