Australia's highest-profile sexual harassment case came within a whisker of being settled on the eve of the $37 million damages suit being launched by the alleged victim Kristy Fraser-Kirk against David Jones and its former chief executive Mark McInnes.
The case now looks certain to be decided by the Federal Court, with all the unsavoury claims and counter claims being aired before the public.
In the week before Fraser-Kirk's statement of claim was filed in the court both parties were engaged in intense negotiations. McInnes had resigned with a $2 million non-compete contract and Fraser-Kirk was still technically employed by the company but there was plenty of aftermath to play out.
Fraser-Kirk's opening position for damages was $8 million; David Jones started the bidding at $250,000 - a figure more in line with court-adjudicated settlements of this kind.
Her lawyers moved down to $3.5 million; David Jones edged up to $380,000. The bargaining continued over the next few days with Fraser-Kirk dropping her demand to $1.5 million and David Jones pulling up its offer to $500,000.
The clock appears to have stopped on Friday, July 30, when Fraser-Kirk's team pushed for $850,000 and David Jones decided to hold out. Fraser-Kirk's lawyers, Harmers Workplace, who are undertaking this case pro bono, asked for the weekend to consider their position. Clearly the claimants thought there was more in it.
On Monday, August 2, Harmers filed a $37 million punitive damages action and a statement of claim alleging that David Jones and/or McInnes breached their duty of care to Fraser-Kirk by exposing her to unnecessary risks and that McInnes trespassed upon her by placing his hands under her clothes and touching her bra strap, also by trying twice to kiss her on the mouth - causing her loss and damage. It was at this point David Jones agreed to the $850,000 but it clearly wasn't enough.
In legal circles the size of the claim was viewed as extreme and potentially a publicity-seeking exercise. However, at the very least it placed enormous pressure on David Jones to deal with this legal complaint, which had become fodder for media headlines and a big source of embarrassment for the company.
It's a fair bet that had this claim been dealt with outside the public arena David Jones would have been under far less pressure to settle it swiftly and would have perhaps been less generous.
In a directions hearing two days ago Fraser-Kirk increased the stakes. She now claims she is among 16 women to have been harassed either while working at David Jones or for its former chief Mark McInnes, and in most cases both.
At the court hearing Fraser-Kirk revealed her lawyers would amend the claim to include six more women who allege they were harassed by McInnes at David Jones, and wanted a jury to decide questions of morality and community standards.
Fraser-Kirk's lawyer Rachel Francois said the new allegations were ''that Mr McInnes sexually harassed those employees and that … was part of the employment culture [which] was not addressed by David Jones, leading to breaches of the Trade Practices Act''.
However, at this point Fraser-Kirk remains the only claimant in the case, and she will need others to support her claim - without them they might find the punitive damages more difficult to establish.
For David Jones the pressure to make this case go away will be intense. The board's knowledge of McInnes's behaviour will be explored and scrutinised.
From a shareholder's perspective there would be concern that David Jones should not pay more than precedent suggests a court would normally award the victim.
Fraser-Kirk's damage will also be viewed within the context that McInnes resigned soon after the alleged offences took place and she retains her position at the company and continues to be paid.
It is not surprising that Fraser-Kirk's lawyers are keen to have the action heard by a jury.
More importantly, the case raises wider concerns about the largely unreported incidents of sexual harassment in the workplace and in the court of public opinion - particularly among women. There is a view that her decision to fight this case will raise awareness of sexual harassment. There is another that excessive claims will be counter-productive to the cause.
The $37 million claim has been seen as excessive in some quarters and has lost her some support - even though the spoils of any punitive damages will be donated to charity. (The as-yet-unspecified general damages claim will not be donated to charity.)
It feeds into the view that this action is becoming too theatrical. Already the media conferences and statements from the parties are almost too many to count.
The Federal Court's Justice Geoffrey Flick warned this week that he would not let his court be used as a stage for public relations, and lawyers should confine themselves to legal submissions.
But his speech was delivered a little too late. Even before the judge arrived to the proceedings on Monday, the parties were engaged in a stoush about courtroom seating.
Across four seats in the front centre row sat a handwritten note declaring the chairs had been ''reserved''. It had been placed for Fraser-Kirk and her supporters by her media spokesman, Anthony McClellan
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