Maggie is a final year law student from Perth University.1 Maggie is undertaking an unpaid legal clerkship2 at a small law office of Blabby and Co in the Perth Central Business District. Maggie's aunt used to work at Blabby and Co, and the firm has agreed to give Maggie some work experience as a favour. She reports to a senior partner of the firm, Mr Blabby. (Mr Blabby has been in legal practice for 40 years and is close to retirement.) Maggie is an accomplished singer as she had been earning an income as a singer of a cover band in Perth as a way of financing her studies. On Wednesday 12 May 2021 she attends a 'Christmas in July' dinner function run by the Blabby &Co social committee. The function is held at a nearby CBD hotel, in a function room that has been booked for the event. The function room includes a dance floor and the social committee has hired a karaoke machine. At one point in the evening, Maggie is cajoled into performing a song on the stage at the front of the function room. As she sings the song ('I will survive by Gloria Gaynor) she cannot help but notice Darren Jones (a 28-year-old solicitor who has recently been made a senior associate). Darren is at the back of the room blowing her air kisses, and making hip-thrusting moves in her direction as she sings. She feels revolted. She throws him a look of disdain and then makes sure she does not look in his direction at all for the balance of the performance. After leaving the stage Maggie decides to visit the bathroom and then depart for home. As she exits the bathroom and turns into the corridor, she sees Darren only a few metres away. There is no one else in the corridor. Darren starts to move towards her, saying 'Come here baby, let's make sweet music together and repeats his air kissing. He manages to grab her arm and pushes her up against the wall, but Maggie wrenches herself away. She rushes out of the building and clambers into a taxi waiting at a taxi rank directly outside. Whilst in the taxi she receives an email from Darren, saying 'See you tomorrow, sexy!' with two winky face emojis. Maggie is very upset. She decides she cannot attend work the next day. She manages to go to work on Friday 14 May 2021. Mr Blabby calls her into his office to hand her some work and asks her how she enjoyed the event. Maggie replies that it was not at all enjoyable and outlines Darren's behaviour toward her. Mr Blabby approaches Maggie, puts his arm around her shoulders and says to Maggie 'Your performance on stage was certainly eyecatching and I am sure all the men in the room would have liked to take you home! Anyway, Darren just had a bit to drink, there is no harm done. Least said, soonest mended, eh?' Darren passes by her work desk several times that day, giving her a broad smile and winking at her. Maggie is so upset she quits her job on Monday 17 May 2021. She struggles to focus on her final exams for that semester and has to repeat the units, extending her studies by an additional six months.

Using the legal problem-solving methods taught in this unit:

1. an introduction to the task: " whether Mr Jones' conduct is likely to constitute unlawful sexual harassment under s28A of the SDA."

2. the purpose/s of s28A (1) of the Sex Discrimination Act 1984 (Cth) (SDA) and the overall purpose/s of the SDA with reference to intrinsic aids and the extrinsic aids and caselaw provided. (hint - should include a succinct statement summarising the purpose/s of s28A

3. whether Mr Jones' conduct is likely to constitute unlawful sexual harassment under s28A of the SDA.

4. Could Mr Blabby have breached any provisions of the SDA? Cite the specific provision, summarise the type of behaviour that will be caught by each provision, and briefly relate the provision to the facts. You are not to discuss each element of those provisions or whether those have been met.

DO NOT discuss the procedure for making a formal complaint, or any potential remedies.

refrences:

National Inquiry into Sexual Harassment in Australian Workplaces AUSTRALIAN HUMAN RIGHTS COMMISSION ? 2020

Sex Discrimination Bill 1983

SDA amendment Second reading speech 2010

Sex Discrimination Act 1984

Croucher Seeking Equal dignity without discrimination 93 ALJ 571.pdf

Ewin v Vergara 2013 FCA.rtf

Hughes v Hill 2020FCAFC0126.pdf

NSW Bar v Raphael

Von Schoeler v Boral 2020 EXTRACTS

Vergara v Ewin [2014] FCAFC 100

Legal Problem Solving Guide While the approach taken to legal problem solving is really the same regardless of the area of law, the level of detail you need to go into for each step varies depending on what you are doing (for example, answering a tutorial question will require less detail than an assignment question) and your level of experience (for example, the more proficient you are at legal problem solving the less you will need to plan your answer before writing it). Below is a table with the steps of legal problem solving and an indication of how much time to spend on each step depending on the task you are completing. THE NATURE OF THE TASK BEING COMPLETED When you are still When you are expected In a written answer for assessment learning that area of law to know the area of law well and/or have For example, in an assignment or exam. For example, preparing a limited time workshop/tutorial or THE PROBLEM SOLVING STEPS planning an assignment For example, planning an answer. exam answer. 1. Identify the parties: by name and by their A sophisticated answer will identify the parties role in proceedings For these purposes, this can be as simple as: when addressing steps 2, 3 and possibly 4. You Plaintiff = Patsy don't need a sentence saying 'the plaintiff in this Remember sometimes a question will tell you Defendant = Darren action is Patsy and the defendant is Darren'. You which parties to discuss; in this case only these Or: can say: 'Patsy, the plaintiff, has suffered parties need be formally identified in an answer or Patsy v Darren personal injury in the form of a broken arm, plan. Other times the question will require you to Or: when she was hit by the car Darren, the work out who the parties to each potential cause of Police v Diana defendant, was driving when he failed to stop at action should be. a red traffic light.' Step 1 and 2 done in one short, succinct sentence! 2. Identify the particulars: alleged wrongdoing As noted above you should try and cover steps 1 and injuries/damage suffered Again, keep it brief. For example: and 2 together (and 3 and 4 if possible). This will Remember this is going to help you identify lots of Patsy's injury: personal injury = broken arm form a nice succinct introduction to an answer. the pertinent issues; the COA, potential defences, Darren's wrongdoing: failing to stop at red For example, you could say: 'Patsy, the plaintiff, contentious elements and the remedy sought. traffic light has suffered personal injury in the form of a However, do note, if discussing a criminal/penal broken arm, when she was hit by the car Darren, provision there may not be any injury/ damage the defendant, was driving when he failed to suffered, as some crimes are 'victimless' (for stop at a red traffic light.' example, illegal drug use does not, of itself, harm a third party). Could also be an administrative decision subject of judicial review eg refugee status.When still When expected to know In a written answer for assessment learning the the law well and/ or have law limited time 3. Identify the cause of action ('COA'), onus and standard of proof If you are not told the COA to discuss you will In writing your answer in full step 3 and 4 would ('OOP' and 'SOP" need to think about what COA are relevant to the be best done together. An example of how to The COA can be based in: particulars identified. For example, in a situation address step 3 in the Patsy v Darren scenario is Legislation where personal injury results from careless or given below at step 4. intentional conduct on the part of the defendant Common Law You will need to: consideration could be given to the tortious COAs of negligence and intentional torts to the Briefly (one, maybe two, sentences) that explain/give a definition of the COA ( if you do this well, you may have satisfied step 4 at the person, such as battery and assault. Listing the potential COA and then listing the elements same time); and (therefore steps 3 and 4 are closely related) can Cite authority (section of legislation or case) help you determine the best COA if you have not Remember sometimes a question will tell you what COA to discuss; but been told what COA to discuss. sometimes you will need to work it out for, which is when proper identification of the particulars will help. The civil SOP is on the balance of probabilities and the plaintiff bears this OOP. The criminal SOP is beyond reasonable doubt and the prosecution beats this OOP. 4. Identify the elements of the COA As noted in step 3, thinking through the elements As noted, step 3 and 4 are best completed If dealing with a COA you have focused on in detail in class then you need of the COA and the particulars of the factual together and should form your Introduction. not spend much time on this step, in fact, you may not even need to cover scenario will help you determine the most it at all if the definition you give of the COA in step 3 is comprehensive. suitable COA in a problem scenario where you For example, for an assignment answer: For example, if in step 3 you said 'negligence consists of a legal duty owed are not told what to discuss. For example, the 'Patsy, the plaintiff, can bring an action by the defendant to take care of the plaintiff which has been breached by question might simply say 'discuss Darren's against Darren, the defendant, in negligence the defendant and has caused the plaintiff's harm: case authority' then liability' or 'advise Patsy'. and would need to prove Darren owed her a you have already identified the elements and you need not expressly do duty to take care on the road, this duty was so again (although you will impliedly do so again when you complete For example, the Patsy and Darren scenario breach and caused her injury: Donoghue v steps 5 and 6). could be planned in the following way: Stevenson.' As this is a civil action, Patsy must prove all the elements of the cause of action However, if part of what you are being tested on is your ability to A. Negligence: Donoghue v Stevenson on the balance of probabilities.' determine what the elements of a COA are then you will need to spend a 1. Duty little bit of time on this step. Typically this occurs when being tested on 2. Breach Donoghue v Stevenson [1932] AC 562. statutory interpretation and you are asked to describe the COA and 3. Causation elements arising from a certain statutory provision. In this case you will For example, for an exam answer: need to take some time to list in your answer each of the elements that B. Battery: Marion's Case Patsy, the P, can bring an action against need to be established in order to prove the COA. 1. Physical contact Darren, the D, in negligence must prove 2. Direct Darren owed her a duty to take care on the 3. Intent road, this duty was breach and caused her injury: Donoghue Pasty bears the OOP on the balance of probabilities.'When you are still learning When you are expected to In a written answer for assessment that area of law know the area of law well and/ or have limited time 5. Identify the law governing the When you are still learning In planning an exam answer you A sophisticated answer will complete steps 5 and 6 elements of the COA: the law, such in in will need to keep this brief. You together by addressing each element in turn. preparation for a tutorial, are quickly noting down the le how the cases have interpreted you might want to spend a elements (step 4) and the law So, element one will be identified (this will satisfy step each element (for a common law little bit of time on this to (step 5) to make a checklist to 4 in situations where it is not possible to briefly cause of action) or help refine your refer back to when you are mention the elements of the COA in a one sentence understanding. In trying to writing up your answer so that definition of the COA), the law explained (step 5) and For a statutory action - the identify the law governing you don't forget to include argument made by applying the law to the facts (step definitions, statutory each of the elements you anything in that final answer. You 6). Then element two will be addressed and steps 5 interpretation and case law might find there is might also find in writing your and 6 (and 4 if relevant) considered for that element, interpretation of that statutory something you do not brief list of elements (step 4) and and so forth. requirement. understand and may wish to law (step 5) that some issues are follow up by doing some more important than others to This approach will almost always produce the best [see the note in red.] further research. your answer and hence your final answer for a number of reasons. It minimises the answer will need to spend more chances of irrelevant law being discussed at step 5; it time on these issues. minimises the need for repetition, so the statements made in steps 4 and 5 don't need to be repeated when step 6 is eventually discussed; it minimises the opportunity to forget relevant material; it is a more sophisticated way of writing as it demonstrates a truly solid understanding of the area of law and an ability to construct an argument. In short it is simply a more persuasive way to write.When still When expected to know In a written answer for assessment learning the law the law well and/or have limited time 6. Apply the law to the facts Jot down any argument that come to mind See comments in step 5 above. That is, go through each element and the law governing it and and any caselaw that rings a bell (this might argue, using the facts, whether the element has been be because the facts of the problem scenario For example, in the Patsy and Darren scenario: established by the party bearing the onus of proof (which is are similar to other caselaw you have Darren, as the driver of the car and therefore usually the plaintiff, prosecution or applicant). This will be the studied). a road-user, will Patsy, the driver of the other part of the answer which will be allocated the most marks. A car and therefore also a road-user, a duty of poor attempt at applying the law to the facts, regardless of For example, under the 'breach' element of care because of the established duty of car how good your explanation of the law, will mean that your negligence you might note: category of road-user: Imbree v McNeilly answer gets no more than a Credit grade. Darren was not speeding when he went (2008) 236 CLR 567.' hrough intersection. Reach a conclusion as to whether the element can be There was evidence of other similar Of course the more contentious the element established. Usually the conclusion will not be in absolute accidents at this intersection. (because the law is uncertain or because the terms, but in terms of likelihood. For example, 'therefore, it is facts give rise to multiple arguments) the more highly likely that this element can be established by the discussion is required for steps 5 and 6. plaintiff. Sometimes, the conclusion can be in absolute terms; for example, 'The defendant entered the plaintiff's house. A house is considered as "land" for the purposes of trespass to land (cite an authority) and so the element of land is established here.' Here you need to identify both the strengths and the weaknesses in argument being made by the party bearing the onus of proof. The weakness in this party's case will often be highlighted and argued by the party who does not bear the onus of proof (usually the defendant or respondent); however, please note that these arguments are simply counter-arguments or weaknesses in the case for making out the COA. They are NOT a defence. DO NOT call them defences. A defence is a legal excuse, with specific elements, for the defendant's conduct and the defendant bears the onus of proofing the elements of a defence