After experiencing sexual harassment over 11 years ago, Lilo Von Schoeler (Lilo) can finally say that justice has been served in a land mark decision handed down by the Full Court of the Federal Court of Australia in the matter of Von Schoeler v Allen Taylor & Company Ltd Trading as Boral Timber & Ors (Federal Circuit Court of Australia), BRG 893 of 2011.
In 2011, Lilo filed her claim for sexual harassment, sex discrimination and victimisation against Allen Taylor & Company Ltd trading as Boral Timber, a subsidiary of Boral Limited, and two of its employees, Timothy Hey and John Urquart. The Judge at first instance found that Lilo had been sexually harassed however did not find Boral Timber vicariously liable for their employee’s conduct and dismissed her other claims outright.
In bizarre circumstances, that still remain unexplained, the judgement was not provided to any of the parties until November 2018. The parties were told by the Judge’s Associate that the reasons for judgement had been released in April 2015 but due to an ‘administrative oversight’ the judgment had not been sent to the parties.
Susan Moriarty & Associates filed an appeal on ten grounds, including one which alleged that the delay was of such a magnitude and so inexplicable that Lilo had been denied justice and another which asserted that Lilo’s employer, Boral, were vicariously liable for their employee’s conduct.
In a scathing judgement at the final paragraph of the decision, their honours stated:
It should finally be noted that the delay on the part of the primary judge in delivering his judgment has—regrettably—brought the administration of justice into disrepute.
The full court upheld Lilo’s appeal, declaring Boral was vicariously liable for the sexual harassment, set aside the primary judge’s costs order against her, ordered Boral to pay Lilo’s appeal costs and remitted the issue of victimisation, sex discrimination and assessment of damages to a different judge in the Federal Circuit Court.
Lilo described to her legal team at Susan Moriarty & Associates when she was notified of her win that she was:
“just so damn happy, I just want to dance!” and added she was “grateful that the full court acknowledged the strain” she had laboured under for over 6 years and was “delighted that after all this time, justice has finally been served”.
Susan Moriarty & Associates filed a freedom of information request in regard to how such an ‘administration oversight’ had happened. However, the application was denied on the grounds that the documents in question were ‘judicial’ in nature and therefore exempt under the Act. Ms Moriarty has lodged an application for review of the Court’s decision with the Commonwealth Office of the Information Commissioner.
Ms Moriarty said that “We want to understand what happened here, to discover how such an astonishing delay could have occurred. This is in the interest of all litigants. The old proverb remains prescient ‘Justice delayed is Justice denied’. The court’s managers needs to understand how and why this happened so that it never happens ever again”.