Following on from our coverage of the case against alleged facebook stalker, ex-Clayton Utz lawyer Michael Mitchell, the Firm Spy has now had an opportunity to read the transcript (available here), and brings you the following incredible gems:

Mr Mitchell alleges that Mr Williams, Mr Taylor, Ms Goumenis, Ms Best and Mr Robinson, all employees of Clayton Utz, sexually harassed him. ??With respect to Mr Williams, it is alleged that:

(a) In June 2007, Mr Williams informed Mr Mitchell that changing his clothes underneath a trench coat in his office would ‘probably not be regarded well if management found out’. Mr Williams agrees that he spoke to Mr Mitchell about the inappropriateness of getting changed in his office.

(b) After Mr Mitchell told Mr Williams that he changed his clothes underneath his overcoat, Mr Williams went to Mr Taylor’s office and was laughing and looking at Mr Mitchell. He says they were making jokes about him ‘articulating the association between trench coats and deviant and illegal sexual behaviour and referring to him as a ‘flasher’ and as ‘trench’. Mr Williams denies these allegations.

(c) Mr Mitchell received emails sent between Mr Taylor, Mr Williams and Mr Ho that ‘continued to make fun’ of him.  Clayton Utz denies the allegation.

(d) Mr Williams continued to refer to him as ‘trench’ and/or continued to make fun of him for having changed in his office. He claims that this continued to ‘articulate the associations between overcoats and deviant sexual behaviour.’ Mr Williams denies the allegation.

 (e) On one occasion, Mr Williams ‘explained to the applicant how solicitors could take paralegals home for sex’.[emphasis added]. Mr Williams denies the allegation.

With respect to Mr Taylor, it is alleged that: 

 (a) Mr Taylor spoke with Mr Williams (see above).

(b) Mr Mitchell received emails that ‘continued to make fun’ of him. Mr Taylor denies the allegation.

(c) Mr Taylor continued to refer to him as ‘trench’ and/or continued to make fun of him for having changed in his office. He claims that this continued to ‘articulate the associations between overcoats and deviant sexual behaviour.’ Mr Taylor denies the allegation.

 (d) One Friday evening Mr Taylor went into Mr Mitchell’s office, took his coat, put it on and ran up and down the hallway calling out ‘trench, trench, trench’. He then went into the office of Mr Ho and continued to make fun of Mr Mitchell. Mr Taylor agrees that he put Mr Mitchell’s coat on and walked several metres down the hall, saying ‘trench-coat’ several times in a sing-song voice.

(e) Mr Taylor continued to refer to the fact that Mr Mitchell had changed in his office underneath his overcoat and that that was basically what a flasher did.

With respect to Ms Goumenis, Mr Mitchell alleges that:

(a) she called out ‘trench’ to get him to come over and answer a question;

(b) she referred to Mr Mitchell as ‘trench’ as a way of ‘getting his attention’;

(c) she said in a sarcastic tone - ‘Yeah, he changes underneath his trench coat next door to me’ to which Mr Mitchell responded it was not true and then said to her ‘no, you just fantasize about me changing in my office’. Ms Goumenis says she has no recollection of the alleged incidents.

Mr Mitchell says that Mr Robinson is a partner of Clayton Utz and that he was aware that he was being called ‘trench’ and did nothing to stop the conduct. Mr Mitchell makes no allegation of sexually harassing conduct against Mr Robinson personally. According to Mr Mitchell, Mr Robinson derived ‘maximum enjoyment’ out of the comment. Mr Robinson denies the allegation. 

Submissions. Being teased, bullied or the subject of jokes does not constitute sexual harassment unless the conduct is “of a sexual nature” and the other elements of s 22A are satisfied. The conduct which Mr Mitchell says was of a sexual nature included being called ‘trench’ and ‘flasher’, being the subject of jokes about changing in his office and receiving emails making fun of him. This conduct, he says, articulated ‘the associations between overcoats and deviant sexual behaviour.’ Clayton Utz submitted that there was nothing inherently sexual about the words ‘trench’ or ‘trench coat’ and that being called that name does not amount to conduct of a sexual nature. In particular it was submitted that there was no evidence of any connection between the words ‘trench coat’ or ‘trench’ and deviant sexual behaviour. 

?Trench/trench coat. I accept Clayton Utz’ submission that conduct involving the use of the words ‘trench’ or ‘trench coat’, by themselves, does not constitute conduct of a sexual nature. There is nothing ‘sexual’ about those terms. Since the allegations against Ms Goumenis and Ms Best were that they merely called him those names, those complaints lack substance and leave is refused for them to proceed. Similarly, other incidents where it is alleged that Williams or Mr Taylor called Mr Mitchell ‘trench’ or ‘trench coat’, with no accompanying conduct of a sexual nature, lack substance and leave for those aspects of the complaints to proceed is refused. 

?Flasher. The word ‘flasher’ is defined in the Macquarie Dictionary (3rd edition, The Macquarie Library) as ‘Colloquial one who briefly exposes themselves in public’. It is arguable that referring to Mr Mitchell by that name constitutes conduct of a sexual nature. Mr Mitchell says that the conduct was unwelcome and we accept that evidence for the purpose of these proceedings. It is also arguable that a reasonable person, having regard to all the circumstances, would have anticipated that Mr Mitchell would be offended, humiliated or intimidated by being referred to as a ‘flasher’. Consequently leave is given for Mr Mitchell’s complaint to proceed to the extent that it involves allegations that Mr Taylor or Mr Williams referred to him as a ‘flasher’.?

?Being made fun of by conduct or email communication and being the subject of jokes for changing in his office. These allegations may constitute conduct of a sexual nature depending on whether Mr Mitchell can establish that the behaviour ‘articulated the associations between overcoats and deviant sexual behaviours’. Leave is granted for these aspects of his complaints against Mr Williams and Mr Taylor to proceed. ??

Taking para-legals home for sex. The alleged comment about how ‘solicitors could take paralegals home for sex’ is not conduct of a sexual nature in relation to Mr Mitchell. If it was said, it was a comment about the situation as Mr Williams understood it, rather than conduct of a sexual nature in relation to Mr Mitchell. ?

?Conclusion. Leave is granted for the complaints of sexual harassment against Mr Williams and Mr Taylor personally and against Clayton Utz as their employer to proceed except for the allegations that Mr Williams or Mr Taylor called Mr Mitchell ‘trench’ or ‘trench coat’. Since there is no allegation that Mr Robinson engaged in any conduct of a sexual nature as defined in s 22A, nor any other basis on which Mr Mitchell submitted that Mr Robinson could be liable under the AD Act, leave is refused for the complaint of sexual harassment against him to proceed. 

Anyone keen to bonk a trenchcoat-wearing paralegal?

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