I’ve been watching the David Jones sexual harassment case involving former CEO Mark McInnes and former David Jones publicist Kristy Fraser-Kirk with interest, as frequent readers of this blog will know. The case garnered a lot of publicity because Fraser-Kirk’s allegations resulted in McInnes’ resignation, but then Fraser-Kirk proceeded to sue him on a variety of bases (misleading and deceptive conduct, breach of employment contract, breach of duty of care to provide a safe workplace, trespass on the part of McInnes, and a “Claim in Equity” that she was induced to adopt certain assumptions upon which she relied to her detriment). The particularly controversial aspect was her claim for $37M in punitive damages for tort. She also brought an action in the Human Rights and Equal Opportunity Commission for sexual harassment. McInnes publicly admitted he had behaved “in a manner unbecoming of a chief executive to a female staff member”, but denied most of Fraser-Kirk’s allegations.
Yesterday it was reported that David Jones’ and Fraser-Kirk’s lawyers were in furious discussion, and that Fraser-Kirk and her family had emerged smiling from the conciliation; today it was reported that they reached a settlement for a six figure sum (so substantially less than $37M).
Do people think that this case has been positive or negative for women who wish to bring allegations of sexual harassment? I’ve heard a vast spectrum of views, ranging from people who applaud Fraser-Kirk for her courage to people who accuse Fraser-Kirk of inflating her claims to gain as much damages as she can. Do you think it will have a positive impact on workplaces?
Update:
A report in The Age today clarifies many of the details about the settlement, along with the fascinating tidbit that McInnes personally topped up the settlement amount:
Former David Jones chief executive Mark McInnes is believed to have dipped into his own pocket to fund part of the $850,000 payout to Kristy Fraser-Kirk after the store’s directors refused to pay more than the $470,000 court award precedent for sexual harassment.
A spokeswoman for Mr McInnes, who has cashed in 250,000 shares in the company since June, refused to comment when asked about her client’s contribution to the settlement, which is still being finalised.
An expert in workplace law yesterday said he would expect that Ms Fraser-Kirk, after legal expenses, would end up with about $500,000 – considerably less than the $37 million punitive damages she had initially sought.
The junior publicist was suing the department store, its directors and Mr McInnes but at the last minute the store is understood to have reduced its offer even further.
Their view was that, with so much of the detail of the claim in the public domain, there was no need to pay hush money.
Mr McInnes is understood to have stepped in to bolster the settlement at the 11th hour, to prevent the matter from being dragged through the courts.
…
It is not known if [Fraser-Kirk] will donate any of the settlement to charity. She said at the news conference to launch her claim that any punitive damages would be donated to a charity ”assisting persons in the area of sexual harassment and bullying”.
Neither side has yet made a statement because they are still trying to agree on the small print that largely relates to the confidentiality deal and the amount of detail that can be made public.
It is believed that David Jones wants the deal to be transparent while Ms Fraser-Kirk is keen to keep details of her payout private.
Gerard Phillips, head of Middletons workplace relations lawyers, said: ”I am assuming after Fraser-Kirk has paid legal costs and other costs associated with the case she will probably receive around half a million dollars which, for a sexual harassment case, is not a bad result.
”Obviously if the matter is resolved for significantly less than the $37 million there will be lots of questions about the qualification of the claim in the first place.”
Update 2:
Surprise, surprise, Fraser-Kirk is not going to give her damages to charity.
Update 3:
Sensible piece by Ian McIlwraith on Fraser-Kirk’s lawyers’ strategy FAIL.
79 Comments
I suspect it will not shift people’s views very far from their starting point. In that she has sent out a fog horn call , one that not even the most ossified corporate auricle could ignore, warning them that they sweep this stuff under the carpet at their peril, I applaud her.
I am about to embark on a similar process myself, with very little hope of successful outcome, (it isn’t to do with gender btw). If I can force the people involved to account for their actions, even if they lie through their teeth in the process, I am hoping it will make them a little more circumspect about fucking the next family over.
There was a media report saying that DJs had offered $8 million although the claim is contested.
http://www.heraldsun.com.au/entertainment/confidential/kristy-fraser-kirk-and-the-8-million-rumour/story-e6frf96o-1225938016157
As to LE’s two specific questions – a positive or negative: I think a positive for anybody in an on the face of it weaker or subservient position; and impact on work places: hopefully positive.
On a more general note, I was mainly following this case to see how it might pan out for the directors’ liability, and for DJs the company. But I guess the terms of settlement, and the reasons therefore will remain “private”; which kind of disappoints, because, as SL said a couple of days ago, it is always good to see what is done to justice.
And maybe ironic that a complaint arising within company PR, which proceeded in full glare with the help of a PR agent, to the complete detriment of DJ’s PR, will be settled probably with strict confidentiality.
The suggestion in the SMH this morning was that the figure was somewhere around $850K. According to the article DJ’s had already offered that figure.
I can’t really see this as a positive. It is out of proportion with other sexual harassment cases. It was plainly obtained by means of a PR campaign and a claim for punitive damages which no-one could reasonably think justifiable or likely to be awarded in the circumstances. That invites an examination of her lawyers’ professional conduct because, assuming they’re sufficiently competent to know that the figure was ridiculously high, the inference readily to be drawn is that they pleaded the figure to get the publicity rather than with any real expectation of an award approaching that amount. That is a reasonable basis for asserting that they abused the process of the Court and their professional bodies ought to examine their conduct.
If, in the end, this has been an act of extortion rather than a claim for compensation, it is hardly likely to assist other women who have been harassed. What it will do is weaken the laws which protect them because hardly anyone will respect a law which sees payouts so disproportionate to the harm caused.
Nick, if you look at Update 1 and Update 2 to the earlier post (the first link in the post above), there’s a discussion of whether an unreasonably massive damages claim should be an abuse of process. My feeling is that it should be, but there is case law to suggest that it isn’t.
Nick, the bloke was a yob. All in all, a fair outcome.
Okay, these are my impressions. My first impression was that the McInnes guy was, as Paul asserts, a yob who thought he had a droit de seigneur over all the young women in the office. If, as she said, DJs did nothing when she made her complaint, they deserve to be sued for a fair amount of money. I would have had every sympathy for Fraser-Kirk if she had gone for, say $850,000. But when she made that massive damages claim, I felt less sympathetic to her claim. That’s just a ridiculous claim to make, particularly as we don’t really have a US style punitive damages regime here. It smacks of attention-getting.
Nonetheless, I do hope big companies stood up and took notice. If the big kahunas are getting up to stuff like this, it shouldn’t just be pushed under the carpet because the big kahuna happens to be making them profitable.
LE, I don’t read that judgment as precluding a finding of abuse of process in this case. You will be aware that there is authority to the effect that a perfectly well grounded action can be an abuse if it is brought for an ulterior purpose. In this case, the plaintiffs lawyers look as though they have used the pleadings as the basis for a PR strategy with the aim ultimately of extorting a larger settlement out of David Jones. It is shameful.
And Paul, given his admissions, we can say with some certainty that McInnes is a grub and that Ms Fraser-Kirk deserved to be compensated. That said, there is no reason she should be entitled to more than any other complainant purely because she had access to clever (but in my opinion, unprofessional) legal advisors.
This payout and outcome is ridiculous. After working in Corporate Offices as a PA to Executives for 30 years worst things than this scenario happens all a time and nothing is ever done about it. I have constantly over the years had to fend off all manner of sexual advances like many others. 6 years ago on my way home from a board meeting I was run over by a drunk driver and spent the next year in hospital almost loosing both arms. To put into context how ridiculous this is – if I had of been brain dead I would have been entitled to less than $150,000, however, after being diagnosed with cancer a year after the accident and believing the stress of the accident caused it, I was finally awarded less than $500,000. It will be interesting to see if she helps others in similar and more dire situationw than herself with this outrageous payment because of a bra strap tug and inappropriation invitation.
Nick I agree with your comments (and said so in my first comment on LE’s earlier post) – except I don’t agree with your word “ulterior”. The plan of action seemed to be perfectly plain, and against a commercially very vulnerable target.
I think Kristy shot herself in the leg with the figure she was demanding ($37m for being felt up, go figure).
In terms of her future career, I don’t think many people would like to employ her.
Fairfax columnist, Lisa pryor, makes an interesting observation.
http://www.smh.com.au/opinion/society-and-culture/assaulting-our-senses-and-our-sensibility-20101015-16nhb.html
Oops. Should have gone on the AFL thread. But I suppose it covers the same issues here.
LDU, I think that’s probably true, particularly once DJs let slip that she’d also brought a sexual harassment case at her old work too. If she’d gone for a reasonable claim, I should think workplaces would have sympathy for her, but having seen the massive quantum of that claim, I’d say that many workplaces might think, “She’s trouble.”
Heh, Peter, it didn’t even look out of place on this thread.
The milieu that ALL these people operate within is reprehensible itself.
Fabulous occasions dahlings! drinkies. cleavage! bondage footwear. mindless twitterings. Sociai pages snaps. flogging frocks for godsakes. Look at MOI!
Swanning about mindlessly with the same unproductive twits, ‘launching’ shoes, scents, ‘looks’, ‘faces of’ … an appalling way to earn a living.
I am sorry that all those Women’s Support Charities are now only getting $850k instead of the $8million she dismissed the day before. I’d bet my ranch that Ms.KF-K has never P-R’d for a womens refuge fundraiser before now.
Yeah, Bwca, the cynic in me wonders how much the Women’s Support Charities will get, once all’s said and done?! Ah, I should really get over being such a cynic, but I can’t help it, the law does that to you.
Look, we knew all along that the $ 37 million was “ambit”. We don’t know exactly how the 850 k’s is to be divvied up, any way, may be charities,(some) fees, some hedging for the future for herself, even. Given how tolerant the world is of whistleblowers, her life is going to be an automatic cake walk, yes?
No, the bloke knew full-well these trends against authoritarian, overt sexual approaches to female staff, in the sort of environment he and they operate.
Beyond a certain level, things have to be a little more consensual, he forgot himself.
Look, none of these people are going to starve to death, however unlovely they may be first thing in the morning and it’s a good point to reiterate to the public and certain types of bosses, that times have changed and a more nuanced approach to staff from management can be more profitable for the company, if not ones own ego and appetites.
Wouldn’t you prefer this, as a share holder, incidently, particularly in an area closer to ideas production and management? The operative word should be “team”, not “self”, like a child in a candy shop. The team is the means by which the bacon is brought home,THEN we party, go fishin’, whatever, in our own time, later.
DJ’s lied repeatedly (before the event by claiming to not be like that), harrassed repeatedly and covered up repeatedly. For those who say she ruined her career by making the claim, is $850k for creating the workplace that ruined her career unreasonable?
I’d say the outcome should be positive – if you have rhetoric that doesn’t match the actions, you should be in legal danger.
Rochelle, the harrassment culture is unlawful for good reason. I’d say your experience is a resaon why this case is a good thing.
I agree with davidp. To the extent the statement of claim is accurate, companies like DJs have to be forced to stop lying so freaking much.
I have updated the post above with the following tidbits from a newspaper report:
* McInnes will probably be paying almost half of the claim personally (seems fair enough to me)
* Fraser-Kirk will probably end up with around $500,000 after legal costs are taken out.
* It’s not clear whether Fraser-Kirk will donate any of the money to charity.
* As Nick Ferrett has canvassed, questions will be asked about the $37M claim now that the matter has settled for so much less.
I suspect the falllout will be bad for women who are harassed in the workplace.
The initial claim was ludicrously high, and the fact that she settled for less than a 37th of what she originally claimed – and agreed to pay her own legal costs – indicates she was never serious and her case was intrinsically weak anyway.
What this does is cast a pall of ridicule over the whole anti-sexual discrimination process which will unfortunately colour perceptions of future, legitimate claimants.
Also agree with Nick further up the thread that there has to be an issue with the lawyers (no disrespect to this blog’s authors). $37 mil for grope that wasn’t really and a couple of racy emails is a preposterous claim and one can only assume it was lodged purely for the publicity that would inevitably follow.
I’m sure the case will make companies and boards of directors more careful about this sort of thing. Having said that, DJs had clearly decided to fight this action in court and the judge had given clear signs that he was none too impressed by the plaintiff’s approach, including trying to bring in unnamed persons who had supposedly also been harrassed.
Evidently, the real facts of the matter did not support Kirsty’s case very well; hence the need to accept the settlement. The word is that DJ’s had offerred 850K initially, in part for confidentiality, but then lowered the offer dramatically.
My guess is that her law firm was running its own agenda which was slightly different from hers. There is no doubt that she is wise to settle rather than pursue the ridiculous amount for punitive damages.
And don’t forget the saucy description of the dessert.
I suspect our sceptical lawyers also question the extent to which Fraser-Kirk was subject to coercive harrassment rather than a clumsy display of self presentation from Macinnes..
Were she as calculating and worldly-wise as her boss likely is, she would have sensed the business opportunity, treated it as such and not especially cared at damage done to erring others reputations.
Maybe her legal advisers convinced her to go the full monty. They’ll have got their fees, regardless of whether they have a distinct sense of injustice done their client as motivation, or as ambulance chasers, opening up a new niche that benefits them, but at the expense of business efficiency and interpersonal relations elsewhere.
When Moses returned from the mountain, he carried with him a stone tablet, containing but two commandments, don’t forget.
The first said, “no one walks past a fifty dollar note loose in the gutter and leaves it there”.
The second, “Litigate or perish”.
If she’s done a Demi Moore like betrayal of her immediate boss for venal reasons, she’s likely added to a sense that women are not to be trusted and are mercenary, justifying male suspicion of women.
Did he give her a genuinely hard time, is she a genuine whistleblower, suffering the inevitable persecution that follows when you take on a big shot, or a cynical exploiter of another’s eccentricities?
Previous posters have suggested the out of court settlement indicates that either the harrassment was not as severe as the public were led to beleive, but maybe she lacked enough evidence to prove her case down the extra “naught” in the claim.
Seems like it’s between two poles.
Equally it does seem that there is an unreconstructed culture in the workplace that won’t acknowledge or cease coercive harrassment when it does occur.
Another legal rap on the knuckles for that culture and food for thought for many bosses, one suspects is not a bad thing.
Let me clarify something. I don’t attack Ms Fraser-Kirk for attempting to take someone who had treated her like shit to the cleaners. That is a natural reaction of someone badly treated in the way that she was.
My criticism is of her lawyers. They helped her use the Court system to that end when they had plain professional responsibilities only to urge a claim on legal bases. As I have said above, there are strong reasons to conclude that they were abusing the process of the Court. It is possible that I am wrong. They may have genuinely thought it time that the law was significantly changed in Australia so as to introduce a strongly punitive approach to damages (as distinct from the comparatively rarely exercised discretion to award exemplary damages). I doubt that.
I might say that I also doubt that they were venal in their approach. My suspicion is that it was something a little more dangerous: an attempt to demonstrate a political point by means of litigation. Paul’s visceral dislike of lawyers notwithstanding, it seemed clear enough to me that this was an attempt to make a point as much as a buck.
And Paul, I doubt whether this case means very much at all for business efficiency and interpersonal relationships elsewhere. If it acts to discourage the sort of conduct alleged to have take place, it can hardly make business places less efficient. It is difficult to see how a workplace is made more efficient by permitting lechery.
26, “Paul’s visceral dislike of lawyers”.
That’s adhominem, since nothing in my other posts here could be remotley interpreted as “antilawyer”.
I have, like yourself, speculated from a distance as to the motives of the different actors in this story.
You are permitted to speculate , but not me.
“My criticism is of her lawyers”- Nick Ferret.
A pretty visceral contempt for them, is the inference I should draw from that?
No, I wouldn’t be that low.
You infer I’m advocating a workplace based on coercion and “lechery”, in your last sentence, But I said,
“Another rap on the knuckles for that culture and food for thought for many bosses might not be a bad thing”.
And, if a welter of frivolous cases based upon possible fabrication occurs, in the light of the circumstances of this case and of publicity emerging from Americas gungho ambulance chaser system. It is obvious that efficiency will drop off, since you dare not communicate with half the people in your workplace, for fear of being sued a motzah as a sexist regardless of whether you are or not, regardless of actual evidence.
Sorry, 26 is actually is addressed largely towards scurrilous “Nick Ferret”, 27.
Paul, I apologise for any offence caused.
My observation that you have a visceral dislike of lawyers was based purely on these comments:
I accept that I should have more evidence than that, but as a lawyer myself, I’m a bit sensitive to insults like “ambulance chasers”. I apologise.
Next (and this is a lawyer’s point), I don’t think I was engaging in pure speculation. I was engaging in inference from known facts. Lawyers know that no-one is going to be awarded $37M for exemplary damages for sexual harassment (indeed that sort of sum is unlikely to be awarded as exemplary damages for any civil wrong). Given that knowledge, it is reasonable to infer another motive in asserting a claim for that much, the most likely one being that it was a tactic to obtain a larger settlement because of the publicity generated.
On the other hand, there is no reason to suppose that the lawyers were paid more by employing that tactic. They would likely have been paid the same amounts whether or not that figure was included. The claim would have involved the same work in any event.
So, with respect, I am not reserving the right to speculate to myself. I am trying not merely to speculate but infer based on the facts.
I make no suggestion that you are
Rather, I sought to point out that that is the natural endpoint of a criticism that complaints such as that brought by Ms Fraser-Kirk tend to reduce business efficiency. Every cause of action known to the law presents an opportunity for the kind of abuse represented by frivolous litigation, but many of them (including this kind) offer important protections.
I am well aware that the discussions on this site are ordinarily characterised by more civility than those on other sites, and I certainly would not wish to change that. Hence the unqualified apology I offer above.
No need mate, am touchy myself, just now. Just had to bury my pet dog (after the cat, a month ago), with the vet’s comment about probable poisoning ringing in my ears, given the type of deaths both suffered.
As I tried to say earlier, am utterly against the acceptance of the notion of droit de siegnieur as a workable basis on which to hire workers, for these.
And freely admit, yes am healthily sceptical of lawyers, as with other people and my own very flawed self.
It’s true that I probably don’t know enough about how “big end” culture operates. On the basis of the case we’re discussing, am not sure I want to, either, from what I can gather so far, as to it all.
Sorry to hear about your dog, Paul. I am still sad about my family dog, who died a year ago now. One day, when we get a proper fence around the front yard, we’ll get another dog.
Brothels?
I suppose
I shouldn’t be sceptical of big end culture, given what goes on round my own patch. I said to a mate the other day that the whole street is an advertisement for therapeutic euthenasia- no doubt onlookers would gladly include me in the mix.
Actually, if lechery is “unrestrained or excessive indulgence of sexual desire” you can sort of rule out most of the advertising industry, half of Hollywood, and some of our newspapers.
More seriously, I am sorry about your dog Paul. Man’s only friend.
I think people could give me a little more credit for my nifty use of blockquotes.
Thanks kvd and rest; have just proven people can be friends, too.
Nick, we missed the forest for the trees.
The blockquoting is,
“A thing of beauty
and a joy to behold”.
Thanks Paul. And sorry about the dog. Not sure how I’ll cope when mine eventually joins the Choir Invisible.
Yeah rough news about your dog. I’ve always has dogs (including the most awesome hunting dog I had to leave with one of my brothers in Oz when I moved to the UK). It doesn’t stop being a wrench, ever.
I do wonder about the utility of actions like this, in part because wrongdoers of all stripes tend to have this silly notion in their heads of ‘it can’t happen to me’ (getting caught, that is). You’d be amazed how many people front up before the beak and their only regret is getting busted.
Lawyers’ and Barristers’ stock in trade – particularly in billing. No extra credit;)
nah, having a ball imagining what I’d do to them. My current (current-electicity-that’s an idea!) is drilling a hole through the skulls and inserting a thin rod, to twirl around until I get a fair facsimile of the convulsions and spasms the dog and cat experienced during their end.
The dog was a bright little friendly thing, no yaps, who I was bequeathed to, by my mum on her cancer deathbed, back in 2007. The cat had a good life ahead of him and the thought that he’d been robbed of his chance cracked me up.
This time its more a dull ache, probably thanks to the exceptional qualities of the vet.
Anyway, enough of this.
The thread is has been about fraught workplace practices and the resilience of obsolete ideas attitudes and practices.. Maybe better for all if folk just learned to treat each other with a little respect and consideration. If the case creates a more considered ambience in workplaces, here’s to it, I’d say.
Rochelle, it is disgusting that sexual harrassment still exists in workplaces today, but I take more offense to women who refuse to speak up when they are victims, or when they have witnessed wrong doing. Behaviour only continues if people refuse to speak up. Kristy-Fraser Kirk is a hero, and if there were more women around like her, then perhaps misogynistic scum like McInnes would not have gotten away with his actions for 20 years. Stop being a girl hater, and take responsibility for the fact that your silence has perpetuated the problem.
Anon, its a bit rich attacking people who refuse to speak up whilst cloaking yourself in anonymity. And your attack on Rochelle is unjustified. At least she has the guts to own her comments.
Apologies for letting that through, Nick — I’m dazed with the flu at the moment and not thinking straight. That said, the email address is named and genuine.
SL, no apology necessary for my part. Thought it was a bit rough on Rochelle.
44, glad you mentioned that. I thought Rochelle’s testimony grist for the mill.
SL, how long have you had this bug? There have to be better things to do in life than being buried under a mound of blankets soaking the sheets with sweat, because you’ll shiver if you don’t and the headaches and yucky feeling and the aches. Get well real quick, friend.
Maybe anon is a student or some young person who doesn’t really “get” how things work in workplaces. Audacity of youth; that sort of thing. Whistleblowing is a poisoned chalice, with a cross to bear for long times after the deed. Something else in life easier said than done.
Anon
The evidence would suggest that far from being “misogynstic” Mr. McInnes is sincerely much enamored of women.
Update: Surprise, surprise, Fraser-Kirk is not going to give her damages to charity.
Interesting read, the Elizabeth Knight take.
LE at 49 – not particularly fair because from day one she was reported as intending to pass on a portion of punitive damages, and none were awarded/agreed/settled (whatever correct word is) by the parties. So that specific issue can’t be fairly now held against her I think.
Yes, I think kvd is correct.
re ‘And don’t forget the saucy description of the dessert.’ comment above by PP.
Maybe the settlement occurred because MM’s defence would ask KFK in the hearing
“and after he said that, did you then have the f-i-t-m dessert?”
and the answer was ‘Yes’
so case over.
Very recently, a young girl who was genuinely sexually harrassed while working in a Melbourne bistro, killed herself as a result.
her parents must have been sticking pins in a KFK dolly while tortured by all the PR on this bra-strap frock-vending circus.
KVD and Peter Patton, personally, if I were Kirk-Fraser, I wouldn’t be able to keep all the money myself, no matter what I’d originally said. I’d have to make at least some contribution to charity.
And LE is also completely correct. Personally, I think David Jones itself should’ve had to pay up big time. These corporations really need to be taken to task for their culture of lying at worst, lazy misrepresentations at best.
The way K-F went about this strategically was never going to win her a lot of fans in Australia, particularly the ‘donate to charity’ right out of the box.
Ann
That bistro incident was truly, truly awful. I actually use a different word about it though; sadism.
Though, I wonder how much the expected $500,000 [net] will cover any downside she experiences professionally going forward? I’d imagine she feels adequately compensated for the ordeal of her harassment and current joblessness [that's if she is]
Has anyone got a linky on the ‘bistro incident?’ Enquiring minds, etc.
Here it is: the Brodie Panlock case.
Christ in a sidecar, that’s the hospitality equivalent of DD causing death. I hope they get the bloody book thrown at them.
Came across this blog and thought I’d make a comment on this.
A little while ago Fraser-Kirk’s claim was published on the Oz’s website. Her claim actually comprised of 2 items, an amount of compensatory damages (which was not specified, and we’ll probably never know what it was) and 5% of profits of DJs in the years McInnes headed it up as punitive damages to be paid to charity (which the media calculated as $37 million). Due to media ignorance and the fact that the phrase “$37 million claim” sells tabloid newspapers, this seems to have erroneously become the fact that Fraser-Kirk was asking for $37 million in compensation. That would have been ridiculous, but that’s not how it was pleaded. Whatever it may have added up to, 5% is a relatively small percentage to ask for in terms of profits of Australia’s largest department store.
I don’t think it was an abuse of the Court’s time to make the punitive damages claim. It’s fairly novel, yes, but it seems to be the case that major corporations can get away with murder on anything they want to and nothing seems to stop them. A win by Fraser-Kirk with punitive damages would have made corporate Australia very scared indeed (and would probably have prompted changes in the law).
$850K seems a good payout for someone in Fraser-Kirk’s type of work which I suspect would not pay that much ($50-$100K per year probably). The real winners though are DJs and McInnes – they’ve parted with next to nothing and McInnes probably got paid more than he had to pay to his victim. And who knows what he’ll do next.
Indeed. Perhaps even saucy soup descriptions! [Oh. The inhumanity]
BenR
Why do you think 5% is not a lot of money to a firm that has shareholders looking to be get a return on their money… mostly they are pension funds accumulating wealth so we can retire.
Also how do you say it’s erroneous that Kirk was not asking for $37 million? That was her claim against the firm and she proudly announced it so.
Let me get this straight. You don’t think it was part of her claim because a large portion of the money was going to be directed to charity.
Okay. Let’s try this on… can you please send $10,000 to the RCH presto. It’s not a claim I’m making against you, because after all it’s for charity.
I’d like you to get it there over the next few days.
What JC said, Ben R’s comment was inane. What remotely sane link is there between anything that happened to her and 5% of DJ’s profits?
Ben R, in my original post on this, there is an in-depth discussion of the difference between punitive damages (designed to punish and deter) and compensatory damages (designed to compensate for loss). People were saying, $37M, that’s too much to compensate her for what happened, but that mistakes the purpose of the particular kind of damages in question.
Nonetheless: $37M is out of this world for punitive damages. Australia has never really been a fan of punitive damages, and certainly not in that kind of quantum. You can get them for tort, but not much else (eg, not breach of contract, not breach of fiduciary duty, not breach of confidence).
Further, for the record, Fraser-Kirk’s payout is streets above all other previous payouts for sexual harassment (the previous record is around $450,000, from recollection, so she’s almost doubled that).
I think she’s punished DJs and McInnes very nicely, thank you. I wouldn’t have known McInnes from a bar of soap before this, but I’ve now formed the impression that he’s one of those powerful men who thinks he’s God’s gift and that he has a right to try it on with the attractive new woman at the workplace. He’s lost his position as CEO of the company, he almost lost his partner, he’s had to pay half of Fraser-Kirk’s damages, and he’s been publicly humiliated. I have also formed an opinion that DJs probably turned a blind eye to his foibles because he was such a successful CEO. The adverse publicity they have gotten from this is extraordinary (moral of the story – don’t harass a publicist). They must be spitting chips.
Mind you, I also think that Fraser-Kirk may find that her own image hasn’t come out of this squeaky clean. I’d have had total sympathy for her, if not for that $37M claim…why did her lawyers do it?
I’ve never understood why punitive damages go to the plaintiff? Given they are more about damage to the community as a whole rather than directly to the plaintiff, wouldn’t it make more sense for them to go to some third party (trust, government, charity, etc)?
Oh desipis, you have to come and do law! And come to my classes, and ask questions like that!!!
The point you make is the whole problem with punitive damages. What is the link between the punishing damages and the wrong done to the plaintiff? Why should the plaintiff get them over and above any other person in society?
One of the ideas a friend and I have is putting some kinds of damages in trust for charitable purposes (a kind of cy pres trust). In a case like this, the punitive damages could be put on trust for the purpose of a charity for women who have suffered from abuse or something.
LE, well I have filled out an application to do law next year although I’m a couple of states too far north to attend your classes.
It’s a hard call as to exactly who gets the money. For me the most direct link would be a trust that supplies legal aid for similar cases and also provides compensation where the defendant is unable to pay. Exactly where to draw the boundaries could be a challenge though. It would also provide a mechanism for balancing the punitive damages by providing a baseline of “demand for funds” to measure damages against.
Paul, I’m so sorry to hear about that.
Apparently a somewhat bizarre study has found that while actually carrying out revenge on their killers may not make you happy, plotting same may be therapeutic.
http://www.latimes.com/health/la-he-revenge-20101018,0,2305011.story
AOD @53: Wha…? Now I think I’ve heard everything. A douchebag makes a creepy remark about your dessert, if you then eat any it disqualifies you from legal action? What does that mean? Eating the dessert is tantamount to consenting to sex? Or if she was able to eat at all she wasn’t upset enough, a la Victorian Heroine template for virtuous womanhood? Maybe I’m misreading what you wrote but I just can’t get my head around this.
Thanks for kind remarks, Helen.
I wonder myself what I would or could do if the vet’s speculations are correct and any individual was sufficiently identified.
I suppose it helps thinking on a comment I once heard, concerning sociopaths- these are actually people who appear not to have the choice range that we have. Thinking on it, its a great blessing not to have to do things I’d be ashamed of (well,someof the time, anyway) because my wiring makes me complicit, willingly or unwillingly. What sort of life must it be, where nothing has any value or meaning, no joy bringing substantial interractivity with others such as we enjoy, validated in experience and one becomes just a reactive button-pusher, starved of any experience that we would find sustaining?
We get pressies at Xmass.
Is it the gift normal people love, or the underlying affirmation and inclusion it symbolises, for when when it comes down to it, we are all just battlers without road maps, trying to find our way home, as the song says?
Helen, thank you for your gift, it’s having a powerful, healing affect on me.
Thanks Paul!
You know, if you were to sniff discreetly around the neighbourhood and identify who was doing the poisoning, and dob them in to the cops and the RSPCA both (with a side serve of local and perhaps state level media), it wouldn’t be the kind of revenge-y the L.A.Times article is talking about. It’d save other dogs and cats, too. Do it if you can!
LE @59 I have eaten at Cafe Vamp (which has changed its name; surprise, surprise). Appalling behaviour.
PW@31 That is dreadful: even more so given the connection to your mother. I am actually cat-sitting at a friend’s place at the moment: pets can be a source of great joy.
H@69 Informative link on revenge fantasies. I have had a few myself. This post helps explain why.
I will now regard them as therapy
Legal Eagle, a point with Ben’s comment is that it highlights the slippage between
“David Jones” and “Mark McInnes”. W ho takes ultimate responsiility?
Is the employer responsible for the individual’s conduct, or the hireling him/her self.
I think the individual has suffered far worse damage than DJ’s, in the background, incidently (and fair enough ) but as someone else suggested, its interesting how its seems to have been spun out.
Helen’s nuanced LA Times article on developments in psychology, begs a question.
Why don’t we get that sort of journalism here?
Paul we DO get that type of journalism *here*. Just click the link and voila! Here is that type of journalism, without having to leave your Jason recliner rocking chair.
PP, link isn’t working for me.
Can you just give me a couple of words to google it up?
Sure
“Revenge may be all in the anticipation”.
Los Angeles Times
Update: Sensible piece by Ian McIlwraith on Fraser-Kirk’s lawyers’ strategy FAIL.
2 Trackbacks
[...] This post was mentioned on Twitter by vexnews, Legal Eagle. Legal Eagle said: David Jones Sexual Harrassment Case Settles: I’ve been watching the David Jones sexual harassment case involving f… http://bit.ly/95u0NE [...]
[...] http://skepticlawyer.com.au/2010/10/16/david-jones-sexual-harrassment-case-settles/ [...]