A jury trial in the DJs case could mean that employers
will face a more litigious environment.
A lot has already been said about Ms Fraser-Kirk's claim for
$37m for punitive damages in her sexual harassment case against
David Jones and former CEO Mark McInnes.
However, that is not the only interesting aspect of the claim.
At the first court appearance legal representatives appearing for
Ms Fraser-Kirk, were reported as foreshadowing a request for a jury
trial as the matter "raised significant questions of community
standards and morality".
Jury trials are very rare in Australia, and usually reserved for
serious criminal matters. Therefore, such a request is somewhat
novel and raises the question of whether you ask for a jury trial
and what purpose it would serve.
Use of jury trials in Australia
While the media portrayal of American jury trials would suggest
that juries can in fact determine civil trials and compensation,
the Australian legal system does not quite operate in that way.
In Australia, jury trials are reserved for the most serious
criminal matters, such as murder, manslaughter or sexual assault,
however, they are also common in the area of defamation.
Defamation is seen as a particular wrong worthy of a jury trial
as it requires a question of society's standards.
Specifically, in the Federal Court (where Ms Fraser-Kirk's
claim has been lodged) the right to request a jury only extends to
an issue of fact. Therefore, juries cannot determine final
non-factual orders or award damages.
Why have a jury trial?
At this stage, it is unclear on what exact basis Ms
Fraser-Kirk's legal representatives seek to have a jury trial.
It is possible that it may be on account of the fact that sexual
harassment cases can often come down to a question of facts.
In this regard, it has been observed that question of facts can
often be the primary issue in sexual harassment cases where the
matter becomes largely one of "he said, she said".
The other aspect that should be borne in mind is Ms
Fraser-Kirk's claim for punitive (or exemplary damages).
Punitive damages are largely aimed at both punishing the
defendant for behaviour in flagrant disregard of their obligations
or the plaintiff's rights, and deterring the defendant and
others from engaging in similar conduct in the future. Putting
aside the question of the amount of damages, it is possible that
such matters could give rise to issues about society's
Sign of what lies ahead
The case against David Jones and the former CEO is yet to be
heard but is expected to be dealt with by the end of the year.
Should a jury trial eventuate it will be interesting to see how
a jury will be utilised in the proceedings to determine matters of
Importantly, it may mean that employers will face a more
litigious environment –and with that, more aggressive
ways in which claimants will seek to agitate claims and bring
matters before the courts and tribunals.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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