The Federal Court has cleared the way for sexual harassment allegations against a former Northern Territory Supreme Court judge to proceed, rejecting the ex-judge's argument that too much time had passed since the alleged conduct.
A former court associate alleges that more than a decade ago the judge made inappropriate comments about her appearance, asked her if she "liked having massages" and suggested sharing a bed to save money.
The NT Anti-Discrimination Commission had agreed to hear the complaint, but the ex-judge, referred to in court documents as RST, appealed the decision.
RST argued the commission had not been sufficiently stringent with a 12-month time limit on complaints.
Last week, Federal Court Justice Mark Moshinsky sided with the commission and comprehensively rejected the ex-judge's arguments.
Federal Court Justice Mark Moshinsky concluded sexual harassment allegations against a former NT Supreme Court judge should proceed. (Victorian Bar)
"I have concluded that none of RST's grounds of review are made out," Judge Moshinsky wrote.
He also said his "provisional view" was that the ex-judge should pay the complainant's legal costs.
The complaint will now return to the NT Anti-Discrimination Commission for mediation, and potentially on to the NT Civil and Administrative Tribunal if no settlement can be reached.
The commission is generally bound by the 12-month limit, but its delegates have the discretion to hear older matters if they consider it appropriate.
A delegate for the commission decided the former court associate's complaint could be accepted "out of time", citing a wide range of factors, including the history of the complaint, the seriousness of the allegations, and the importance of judges not being seen as "above the law".
Timeline of the complaint
The former court worker said she first raised her complaint internally with the Supreme Court itself, but that the response led her to believe there were "no options" for taking it further.
The complainant was led to believe there were no options to hold RST accountable. (ABC News: Che Chorley )
Then, several years later, on June 22, 2020, the chief justice of the High Court issued a "sincere apology" to six women it found were sexually harassed by former justice Dyson Heydon while working as associates.
Mr Heydon has always denied the allegations.
The following day, on June 23, 2020, the former court associate made a formal complaint to the NT Supreme Court and asked for the NT judge to be investigated.
The delegate for the Anti Discrimination Commission (ADC) said this timing was significant.
"Prior to the High Court's apology, it was reasonable for the complainant to conclude that there was no realistic way to hold a judge accountable for sexual harassment," the ADC delegate wrote.
The complaint was ultimately brought to the ADC in 2024.
The former court associate had made attempts to lodge a complaint. (ABC News: Che Chorley)
But the delegate said the fact the complaint had been lodged through internal avenues years earlier meant there were opportunities for evidence to be collected and stored, which could have reduced the "prejudice" problems with the long delay.
The delegate also noted there were "contemporaneous communications" from the period of the alleged conduct.
RST argued the ADC delegate had put too much weight on the "societal and cultural context" and the perceived "blind spot" of courts prior to the Heydon apology.
But Judge Moshinsky disagreed and said it was "quite appropriate and relevant" to consider these factors.
Will the judge's name be revealed?
The names of both the complainant and the ex-judge have been suppressed by a court order, first in the NT Supreme Court and then renewed by the Federal Court.
The ex-associate had asked the court to lift the order on both their names.
But Judge Moshinsky decided to keep the order in place "for the time being" to "prevent prejudice to the proper administration of justice".
Suppression orders preventing the publication of the former judge and his former associate are in place. (ABC News: Che Chorley)
It will now be up to the ADC to decide whether to grant a similar order, known as an "anonymity order".
The parties could also reach a settlement that includes the ex-judge's ongoing anonymity.
Judge Moshinsky said his intention was for the court's suppression order to be lifted if the commission decides not to grant an anonymity order.
