275 I consider that this conduct falls in the wide berth that Courts must afford defendants in prosecuting their cases. That is not unbounded. The Court is obliged to disallow questions to witnesses that are offensive, humiliating, harassing, belittling, insulting, otherwise inappropriate or with no basis other than stereotype: Evidence Act 1995 (Cth) s 41(1)(b), (c), (d). At the commencement of the trial, senior counsel for Ms Tickle had requested that the respondents not refer to her using male pronouns or titles in cross-examination. As it turned out, the respondents did not cross-examine her at all, but if they had, s 41(1) could have obliged me to constrain the ways in which they put questions to her.
276 That is not so for Ms Grover laughing in Court at the offensive caricature of Ms Tickle. Her explanation, that it was funny in the context of the courtroom, was obviously disingenuous. It was offensive and belittling, and had no legitimate place in the respondents prosecuting their case. Because I consider the harm that arose from this to be slight and difficult to quantify, however, I consider that this is best assessed as part of the overall award of damages, contributing to the amount to be awarded of $10,000. I should note that specific evidence of harm to applicants from respondents' conduct at trial is generally not necessary for this kind of damages, if for no other reason than it would be an undue burden to an applicant to put on further evidence of harm at the trial's end. In this case, I am willing to infer some limited degree of harm from the offensiveness of this confined aspect of Ms Grover's conduct.
(vi) Conclusion as to aggravated damages
277 In this case, none of the identified criteria for an award of aggravated damages described above in this section are met, save as to a limited aspect of the conduct of the trial by the respondents. Any failure would be fatal to the claim for aggravated damages, because:
- (a) Part of the conduct upon which the claim for aggravated damages arises is that of persons other than the respondents, and no causal relationship between the respondents' conduct and this conduct was established.
- (b) No sufficient nexus has been established between the conduct complained about and this proceeding. It is not enough that there is something that Ms Tickle finds offensive or hurtful. It has to be tied in some way to the gender identity discrimination case she has brought via the complaint to the AHRC, and specifically to the indirect discrimination case that succeeded. That case is about the imposition of a condition that had the effect of disadvantaging persons with a transgender woman gender identity, not to anti-transgender sentiment more generally. No real attempt was made to link the
