Ewin v Vergara (No 3)

[2013] FCA 1311

FEDERAL COURT OF AUSTRALIA

Ewin v Vergara (No 3) [2013] FCA 1311

Citation:

Ewin v Vergara (No 3) [2013] FCA 1311

Parties:

JEMMA EWIN v CLAUDIO VERGARA

File number:

VID 494 of 2011

Judge:

BROMBERG J

Date of judgment:

5 December 2013

Catchwords:

HUMAN RIGHTS – discrimination – sexual harassment – employee alleged she was verbally and physically sexually harassed by a contract worker engaged by her employer – harassment alleged to have occurred at the employer’s office, at other venues and during travel – whether the conduct was by “fellow employee” within the meaning of s 28B(2) of the Sex Discrimination Act 1984 (Cth) (SD Act) – whether the conduct occurred at a place that is a workplace of both workplace participants within the meaning of s 28B(6) of the SD Act – meaning of “workplace” – whether “workplace” confined to premises exclusively occupied by workplace participants and not to common areas shared with others – whether the usual workplace of both workplace participants is only a “workplace” during working time – whether and in what circumstances a place other than the usual workplace of both workplace participants may be a “workplace” – whether the conduct alleged could be characterised as a “sexual advance”, “a request for sexual favours” or “conduct of a sexual nature” within the meaning of s 28A of the SD Act – considerations relevant to determining whether the conduct was “unwelcome” – considerations relevant to determining whether a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated – whether the conduct alleged was proved – conduct found to have contravened
s 28B(6) of SD Act.

EVIDENCE – s 140 Evidence Act 1995 (Cth) – considerations to be taken into account in considering whether case proved on balance of probabilities.

DAMAGES – orders under s 46PO(4) Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) – measure of damages – extent to which common law principles have application in the assessment of damages under the AHRC Act – whether aggravated damages may be granted to compensate for matters taken into account in the award of general damages – considerations for the award of exemplary damages where compensatory damages have significant punitive force.

DAMAGES – double recovery – claims settled against both the applicant’s employer and the respondent’s employer – terms of settlement not disclosed to the Court – possibility of double recovery – prior satisfaction of applicant’s loss to be taken into account at time damages awarded – orders made requiring terms of settlement to be disclosed.

Legislation:

Australian Human Rights Commission Act 1986 (Cth)
ss 46PO(4), 46PO(4)(d), 46PR
Criminal Procedure Act 1986 (NSW) s 294A
Criminal Procedure Act 2009 (Vic) ss 356, 357
Evidence Act 1906 (WA) s 106G
Evidence Act 1995 (Cth) ss 46(1), 140, 140(2)
Racial Discrimination Act 1975 (Cth)
Sex Discrimination Act 1984 (Cth) ss 3, 3(c), 5(1), 14(2), 28A, 28A(1)(a), 28A(1)(b), 28B, 28B(1), 28B(2), 28B(3), 28B(4), 28B(5), 28B(6), 28B(7), 105, 106(1)
Trade Practices Act 1974 (Cth) s 82

Cases cited:

Fair Work Ombudsman v Eastern Colour Pty Ltd (2011) 209 IR 263
Aldridge v Booth (1988) 80 ALR 1
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217
Poniatowska v Hickinbotham [2009] FCA 680
Kraus v Menzie [2012] FCA 3
South Pacific Resort Hotels Pty Ltd v Trainor (2005) 144 FCR 402
AB v Western Australia (2011) 244 CLR 390
IW v City of Perth (1997) 191 CLR 1
Waters v Public Transport Corporation (1991) 173 CLR 349
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
X v McHugh (Auditor-General for the State of Tasmania) (1994) 56 IR 248
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98
Leslie v Graham [2002] FCA 32
Walker v Victoria [2012] FCAFC 38
Qantas Airways Ltd v Gama (2008) 167 FCR 537
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465
Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466
R v Costa (unreported, Court of Appeal of the Supreme Court of Victoria, Phillips CJ, Callaway JA and Southwell AJA, 2 April 1996)
R v Egan (1985) 15 A Crim R 20
R v Wilson (1986) 42 SASR 203
R v Richards [1998] 2 VR 1
R v Lavender (2005) 222 CLR 67
R v Sam [2009] NSWSC 803
Commonwealth v Peacock (2000) 104 FCR 464
Richardson v Oracle Corporation Australia Pty Ltd [2013] FCA 102
Henville v Walker (2001) 206 CLR 459
John Holland Group Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2010) 198 IR 439
Human Rights and Equal Opportunity Commission v Mt Isa Mines Limited (1993) 46 FCR 301
Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92
Lee v Smith [2007] FMCA 59
Clarke v Nationwide News Pty Ltd (2012) 201 FCR 389
Elliot v Nanda (2001) 111 FCR 240 at 297
Gray v Motor Accident Commission (1998) 196 CLR 1
Sanders v Snell (1997) 73 FCR 569
Baxter v Obacelo Pty Ltd (2001) 205 CLR 635
SAS Trustee Corporation v Budd [2005] NSWCA 366
Boncristiano v Lohmann [1998] 4 VR 82
Townsend v Stone Toms & Partners (1984) 27 BLR 26
Miletich v Murchie (2012) 297 ALR 566
Nau v Kemp & Associates Pty Ltd (2010) 77 NSWLR 687
Banque Keyser Ullman SA v Skandia (UK) Insurance Co Ltd (No 2) [1988] 2 All ER 880

Date of hearing:

3-14 December 2012 and 19-20 December 2012

Place:

Melbourne

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

693

Counsel for the Applicant:

Mr S Reidy

Solicitor for the Applicant:

Susan  Moriarty & Associates

Counsel for the Respondent:

The respondent appeared in person

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 494 of 2011

BETWEEN:	JEMMA EWIN Applicant
AND:	CLAUDIO VERGARA Respondent

JUDGE:	BROMBERG J
DATE OF ORDER:	5 DECEMBER 2013
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.On or before 4 pm on 12 December 2013, the applicant file and serve on the respondent:

(a)an affidavit detailing and enclosing the terms of any settlement reached between the applicant and Living and Leisure Australia Limited, Robert Walters Pty Ltd or any other person by which satisfaction (in whole or in part) has been provided to the applicant of any loss or damage suffered by the applicant arising from or consequential upon the conduct of the respondent which is the subject of this proceeding.  If necessary, such affidavit shall set out and verify the amount the applicant claims to be entitled to deduct from any lump sum settlement by way of costs; and

(b)minutes of proposed orders that reflect the reasons for judgment published this day, including a proposed order as to interest with particulars detailing the amount proposed.

2.The proceeding be listed for further hearing at 9.30 am on 16 December 2013, for submissions as to the appropriate orders to be made in the proceeding.

3.Until further order, the respondent not disclose to anyone other than any legal practitioner engaged by him to represent him in this proceeding, the terms of any settlement disclosed to him by reason of the applicant’s compliance with paragraph (a) of order 1.

4.Costs be reserved.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 494 of 2011

BETWEEN:	JEMMA EWIN Applicant
AND:	CLAUDIO VERGARA Respondent

JUDGE:	BROMBERG J
DATE:	5 DECEMBER 2013
PLACE:	MELBOURNE

TABLE OF CONTENTS

INTRODUCTION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[1]
SEXUAL HARASSMENT CLAIM – THE MAIN LEGAL ISSUES........ ........ ........ .	[9]
THE EVIDENCE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[44]
Mr Vergara’s credit........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[53]
Observations about Ms Ewin’s evidence........ ........ ........ ........ ........ ........ ........ ........ ..	[59]
Prior statements of witnesses........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[69]
Other evidentiary matters........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[81]
Procedural fairness issues........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[81]
Section 46PR of the Australian Human Rights Commission Act........ ........ ........ .....	[89]
Section 140 of the Evidence Act........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[90]
BACKGROUND FACTS........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[97]
APRIL AND EARLY MAY 2009........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[114]
12 MAY 2009........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[148]
13 MAY 2009........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[171]
14 MAY 2009........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[235]
Trip to KPMG........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[235]
15 MAY 2009 – AT WORK AT THE LLA OFFICE........ ........ ........ ........ ........ ........ ....	[255]
15 MAY 2009 – THE PHYSICAL SEXUAL HARASSMENT CLAIM........ ........ .....	[273]
The Aquarium function........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[277]
At the Insignia Bar........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[286]
From the Insignia Bar to the LLA office........ ........ ........ ........ ........ ........ ........ ........ ...	[346]
At the LLA office........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[348]
Return to the Insignia Bar and later events that night........ ........ ........ ........ ........ .....	[370]
16 MAY 2009........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[381]
17 MAY 2009........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[392]
PRINCIPAL FINDINGS REGARDING THE EVENING OF 15 MAY 2009........ ...	[426]
SUBSEQUENT EVENTS........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[466]
The week commencing 18 May 2009........ ........ ........ ........ ........ ........ ........ ........ ........	[472]
Complaint made by Ms Ewin to Mr Newton........ ........ ........ ........ ........ ........ ........ .....	[496]
Week commencing 25 May 2009........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[520]
Impact of the subsequent events on the assessment of the evidence........ ........ ......	[565]
SEX DISCRIMINATION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[592]
DAMAGES........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[596]
Did Ms Ewin leave LLA because of Mr Vergara’s conduct?........ ........ ........ ........ ..	[608]
Past and future economic loss........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[618]
General damages – pain and suffering and loss of amenities........ ........ ........ ........ ..	[652]
Past expenses........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[663]
Future expenses........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[670]
Aggravated and exemplary damages........ ........ ........ ........ ........ ........ ........ ........ ........	[675]
The possibility of double recovery........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[685]
CONCLUSION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[692]

REASONS FOR JUDGMENT

INTRODUCTION

1. It is unlawful for a person to sexually harass another person in the circumstances described by s 28B of the Sex Discrimination Act 1984 (Cth) (“the SD Act”). The applicant (“Ms Ewin”) claims that on a number of occasions in May of 2009, she was sexually harassed by the respondent (“Mr Vergara”). At that time, Ms Ewin and Mr Vergara were both accountants working in the business of Living and Leisure Australia Limited (“LLA”).

2. Ms Ewin’s pleaded case alleging sexual harassment relates to two consecutive but distinct periods.  The first covers conduct in the period 12 May 2009 until the afternoon of 15 May 2009.  The unlawful conduct relied upon in that period is largely verbal conduct of a sexual nature and it is convenient that I refer to it as the “verbal sexual harassment claims”.  The second period in which sexual harassment is alleged relates to conduct in the evening of 15 May 2009.  The unlawful conduct relied upon in that period is confined by Ms Ewin’s pleaded case to sexual intercourse and assault.  It is convenient that I refer to that claim as the “physical sexual harassment claim”.

3. Broadly stated, the verbal sexual harassment claims are based upon the following incidents:

   ·On 12 May 2009, Mr Vergara suggested to Ms Ewin at a bar near Southern Cross train station that they should go out dancing and let their hair down.

   ·On 13 May 2009, Mr Vergara engaged in sexually suggestive conduct towards Ms Ewin at work, touched her inappropriately while she was at her desk and pressured her to attend a pub with him for a drink. At the pub, Mr Vergara proposed that Ms Ewin have an affair with him and sexually propositioned Ms Ewin in explicit terms. After Ms Ewin declined his advances, Mr Vergara tried to kiss her.

   ·On 14 May 2009, during the course of the working day, Mr Vergara continued to proposition Ms Ewin for sex in explicit terms and during work on 15 May 2009, made further sexual comments directed at her.

4. The physical sexual harassment claim is based upon events during the evening of 15 May 2009.  That evening Ms Ewin and Mr Vergara attended a work function at the Melbourne Aquarium before heading to a bar across the road with work colleagues.  Both later returned to the LLA office.  Ms Ewin alleged that while at the LLA office, Mr Vergara subjected her to sexual intercourse and assault.

5. Ms Ewin claims that as a result of Mr Vergara’s sexual harassment she suffers from post-traumatic stress disorder (“PTSD”) and other psychiatric illness.  By reason of Ms Ewin’s inability to work and other disadvantage, she claims that she suffered and will continue to suffer loss and damage.  By this proceeding, Ms Ewin seeks to recover that loss.

6. Ms Ewin’s claims also include claims of sex discrimination, although for reasons I will later explain, in large part those claims need not be determined.

7. A large body of evidence was received by the Court over a 12 day trial in which Ms Ewin was legally represented and Mr Vergara was not.  Almost the entirety of the evidence was contested, with different accounts of the same events given by Ms Ewin and Mr Vergara.  A careful and comprehensive consideration of the evidence was required and a number of legal issues were raised which needed to be determined.

8. These reasons commence with my consideration of the main legal issues which arose as to the proper construction of s 28B of the SD Act. I then make some observations which identify the general approach I have taken to the assessment of the evidence. Thereafter, these reasons summarise the evidence, record the findings I have made and identify the relief that the Court proposes to grant.

   SEXUAL HARASSMENT CLAIM – THE MAIN LEGAL ISSUES

9. In relation to the sexual harassment claims, Ms Ewin alleged that Mr Vergara contravened s 28B(6) or alternatively s 28B(2) of the SD Act. Each of those provisions identifies a particular setting in which it is unlawful for one person to sexually harass another. Those provisions sit amongst a number of others in s 28B dealing with employment or employment-like settings.

10. In order to help explain some of the issues that arise concerning the scope of the conduct which is proscribed by the SD Act, it is necessary that I set out the terms of s 28B as at May of 2009, as well as s 28A which defined “sexual harassment”.

11. Section 28A of the SD Act provided:

    28A Meaning of sexual harassment

    (1)       For the purposes of this Division, a person sexually harasses another person        (the person harassed) if:

    (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

    (b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

    in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.

    (2)       In this section:

    conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

12. Section 28B of the SD Act provided:

    28B Employment, partnerships etc.

    (1)       It is unlawful for a person to sexually harass:

    (a)       an employee of the person; or

    (b)       a person who is seeking to become an employee of the

    person.

    (2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.

    (3)       It is unlawful for a person to sexually harass:

    (a)       a commission agent or contract worker of the person; or

    (b)a person who is seeking to become a commission agent or contract worker of the person.

    (4)It is unlawful for a commission agent or contract worker to sexually harass a fellow commission agent or fellow contract worker.

    (5)It is unlawful for a partner in a partnership to sexually harass another partner, or a person who is seeking to become a partner, in the same partnership.

    (6)It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both of those persons.

    (7)       In this section:

    place includes a ship, aircraft or vehicle.

    workplace means a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.

    workplace participant means any of the following:

    (a)       an employer or employee;

    (b)       a commission agent or contract worker;

    (c)       a partner in a partnership.

1. As issues of statutory construction arise as to the intended scope of the conduct proscribed by s 28B, regard will need to be given to the objects of the SD Act which were set out in s 3 in the following terms:

   The objects of this Act are:

   (a)to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women; and

   (b)to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs; and

   (ba)to eliminate, so far as possible, discrimination involving dismissal of employees on the ground of family responsibilities; and

   (c)to eliminate, so far as is possible, discrimination involving sexual harassment in the workplace, in educational institutions and in other areas of public activity; and

   (d)to promote recognition and acceptance within the community of the principle of the equality of men and women.

2. Ms Ewin primarily relied upon s 28B(6). She contended that both she and Mr Vergara were “workplace participants” and that it was a contravention of s 28B(6) for Mr Vergara to have sexually harassed her. There was no real contest, and I am satisfied that, at the relevant time Ms Ewin was an “employee” and that Mr Vergara was a “contract worker” within the meaning of “workplace participant” found in s 28B(7). A “contract worker” was defined in s 4 to mean “a person who does work for another person pursuant to a contract between the employer of the first-mentioned person and that other person”. Mr Vergara was an employee of a recruitment and labour hire firm named Robert Walters Pty Ltd (“Robert Walters”). Mr Vergara was made available to perform work for LLA pursuant to a contract between Robert Walters and LLA.

3. There was however some contest as to whether, if Mr Vergara did sexually harass Ms Ewin, he did so whilst working as a “workplace participant” and “at a place that is a workplace of both” Ms Ewin and Mr Vergara, within the meaning of those words in s 28B(6). The definition of “workplace” found in s 28B(7) is relevant to the determination of that contest.

4. Ms Ewin disputed that any difficulties arose for her case by reason of the place at which any of the alleged sexual harassment occurred. However to fortify her claims, Ms Ewin also contended that Mr Vergara was an “employee” and that she was “a fellow employee” protected from sexual harassment by the terms of s 28B(2). There is no place based requirement to establish a contravention of s 28B(2). However, whilst there was no issue that each of Ms Ewin and Mr Vergara were “employees”, Mr Vergara contended that as they each had different employers, Ms Ewin was not “a fellow employee” within the meaning of s 28B(2) and therefore that provision was inapplicable.

5. I accept the construction of s 28B(2) for which Mr Vergara contends.

6. The ordinary meaning of the phrase “a fellow employee” does not necessarily connote two employees employed by the same employer.  Each of Mr Vergara and Ms Ewin had different employers but were both employees working in the same business and vis-a-vis each other capable of being regarded as fellow employees within the ordinary meaning of that phrase.  Their situation was by no means uncommon.  Corporate structures used to run and organise contemporary businesses often result in employees of multiple employers working as a single workforce in the one workplace.

7. However, the terms of s 28B(2) and the context provided by s 28B more broadly, suggest that a narrower use of the phrase was intended. Whilst the words “with the same employer” in s 28B(2) are principally directed to protecting against harassment between an existing employee and a prospective employee of the same employer, the use of that reference suggests that the need for a common employer was also contemplated as between existing fellow employees.

8. Ms Ewin’s contention may have been stronger if s 28B failed to provide any protection for employees of different employers working in the same workplace. It would have been odd if harassment between co-workers of that kind had been excluded from protection. However co-workers employed by different employers working in the same workplace are covered by s 28B(6) and, in my view, it is only s 28B(6) that was intended to provide relief in those circumstances.

9. I should add for completeness that Ms Ewin’s case floated but did not develop a contention that Mr Vergara and Ms Ewin had a common employer because Mr Vergara could be regarded as an employee of LLA.  That contention, as I perceive it, was founded on the notion that in the tripartite arrangement which existed between Mr Vergara, Robert Walters and LLA, Mr Vergara could be regarded as an employee of both Robert Walters and LLA.  A number of Australian decisions have acknowledged the possibility of joint employment in tripartite arrangements such as that in which Mr Vergara was involved. Those decisions are discussed by Collier J in Fair Work Ombudsman v Eastern Colour Pty Ltd (2011) 209 IR 263 at [72]-[78], where her Honour concluded at [78] that there is in her view, “scope in Australian law for a claim that multiple entities can jointly employ a person”.

10. In the absence of the contention having been properly developed and any evidence in support of it properly identified, I have regarded the contention as not having been pressed.

11. For those reasons I have rejected that any contravention of s 28B(2) occurred and confined my further consideration of Ms Ewin’s claims to the question of whether s 28B(6) was contravened. The starting point in that exercise is the meaning of “sexual harassment” provided by s 28A. For conduct to meet the s 28A definition of “sexual harassment”, the conduct must be a “sexual advance”, a “request for a sexual favour” or “conduct of a sexual nature”.

12. In relation to the verbal sexual harassment claim, each of those three categories of conduct were relied upon.  No issue was raised by Mr Vergara that any of the conduct relied upon by Ms Ewin was not capable of being characterised as involving a sexual advance, a request for a sexual favour or conduct of a sexual nature.  There is however one incident on 12 May which I consider falls outside of the statutory definition.  I will address that issue when I later deal with the particular incident.

13. The alleged acts of sexual intercourse and assault, which constitute the physical sexual harassment claim, are pleaded as “conduct of a sexual nature”.  There was no issue that those acts are capable of meeting the statutory definition and I accept that they do.

14. The two other respects in which the statutory definition of “sexual harassment”  must be satisfied if an applicant is to succeed, is that the conduct must be:

    (i)“unwelcome”; and

    (ii)made “in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated”.

15. In the context of conduct which is directed (intentionally or not) by one person to another or others, “unwelcome” simply means conduct that is disagreeable to the person to whom it was directed.  In Aldridge v Booth (1988) 80 ALR 1 at 5, Spender J described unwelcome conduct as conduct that was not solicited or invited and was regarded as undesirable or offensive by the person to whom it was directed. That understanding was adopted by Wilcox J in Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 247 and by Mansfield J in Poniatowska v Hickinbotham [2009] FCA 680 at [289]. The requirement that the impugned conduct be unwelcome raises a subjective test (Kraus v Menzie [2012] FCA 3 at [22] (Mansfield J)) and looks to the reaction (whether articulated or not) of the person who has been subjected to the conduct.

16. The other element listed above looks to whether a reasonable person would have anticipated a reaction to the conduct involving offence, humiliation or intimidation.  That element raises an objective consideration (Kraus at [22] and Poniatowska at [289]) which is to be answered by reference to what a reasonable person would have anticipated in all of the circumstances. What the person who perpetrated the conduct anticipated or otherwise perceived would be the reaction of the person harassed, is not relevant.    

17. There are no issues of interpretation raised as to whether the conduct relied upon by Ms Ewin was capable of meeting the statutory definition in this respect.  However, as a factual matter, Mr Vergara disputed that the conduct alleged was unwelcome and that a reasonable person would have anticipated that Ms Ewin would be offended, humiliated or intimidated. 

18. It is apparent then that s 28A only raised one issue of construction which I will later address but that more substantial construction issues were raised in relation to s 28B(6). I turn then to consider those issues in more detail.

19. Taking a broad view of what I understand Mr Vergara sought to put in issue, Mr Vergara contended that the scope of the conduct proscribed by s 28B(6) does not extend to conduct which has not occurred during working hours whilst the “workplace participants” are gathered at the workplace for the purpose of undertaking work. Additionally, Mr Vergara contended that the term “workplace” extends only to the premises exclusively occupied and utilised by the workplace participants of that workplace and not to common areas shared by workplace participants with others such as employees of other workplaces or the public generally. Relevantly to the facts raised by this case, Mr Vergara in this respect contended that the “workplace” of Ms Ewin and himself was confined to the area exclusively occupied by LLA as its office and not to any common areas on the floor of the office building on which the office was located.

20. There is no warrant for narrowly construing provisions such as s 28B: South Pacific Resort Hotels Pty Ltd v Trainor (2005) 144 FCR 402 at [70] (Kiefel J). Section 28B is a remedial provision found in legislation which protects human rights and ought to be broadly construed: AB v Western Australia (2011) 244 CLR 390 at [24] (the Court); IW v City of Perth (1997) 191 CLR 1 at 12 (Brennan CJ and McHugh J) and 39 (Gummow J); Waters v Public Transport Corporation (1991) 173 CLR 349 at 372 (Brennan J) and 394 (Dawson and Toohey JJ).

21. As McHugh, Gummow, Kirby and Hayne JJ observed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69], the context, the general purpose and the policy of a statutory provision are amongst the best guides to its meaning. Reading legislation in light of its objects has been said to be of particular significance in the case of legislation which protects or enforces human rights: AB v Western Australia at [24] (the Court); Waters at 359 (Mason CJ and Gaudron J); X v McHugh (Auditor-General for the State of Tasmania) (1994) 56 IR 248 at 256 (Wilson P). Section 28B was enacted in furtherance of the object expressed in s 3(c) of the SD Act and as such, ought to be construed by reference to Parliament’s stated objective of eliminating, so far as is possible, discrimination involving sexual harassment in the workplace.

22. Workplaces are inanimate and incapable of being subjected to sexual harassment. What makes a workplace animate are the people who work in it and the relations between them. The object of eliminating sexual harassment in the workplace is thus to be understood as directed at the elimination of sexual harassment from the work based relationships and the workplace environment of persons who work together for or in a common enterprise, or in other words a common workforce. That, it seems to me, is the mischief that s 28B is directed to addressing.

23. However, whilst the task of statutory construction must take account of the mischief to which a provision is directed, that task must commence with the words used: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98 at [39] (the Court).

24. The terms of s 28B appear to have been framed so as to capture within their protective scope, various kinds of relationships which are commonly found in a workplace. Protection from sexual harassment is conferred by reference to different criteria identified in each of the subsections of s 28B. Each criterion utilised requires that a connection referrable to being a member of or prospective member of a common workforce be in existence between the person harassing and the person harassed. Each of s 28B(1), (3) and (5) fasten upon a workplace relationship criterion such as the relationships between employer and employee, principal and agent or partner and partner as the basis for the connection to a common workforce. Each of s 28B(2) and (4) utilise fellowship as a co-worker as the basis for the requisite connection to a common workforce. Section 28B(6) utilises a commonality of workplace as the nexus in relation to harassment which takes place at that workplace. In each case, what is sought to be provided for, as a requisite element of eligibility for protection, is that both the person harassing and the person harassed have a sufficient nexus (or prospective nexus) to the same workforce in the sense earlier described. It can be seen that the purpose of the provision is to address sexual harassment as between members of the same workforce rather than harassment which merely occurs at a workplace and which may, for example, have been engaged in by a visitor or other interloper.

25. Temporal considerations such as whether the harassment occurred during working hours or whilst the participants were working, are not expressly referred to in s 28B and nor does the underlying policy objective suggest that such a restriction was generally intended. In the case of two fellow employees, a contravention of s 28B(2) was found by Branson J in Leslie v Graham [2002] FCA 32, where the sexual harassment occurred out of work hours in a serviced apartment that the employees were sharing whilst attending a work-related conference.

26. The definition of “workplace” in s 28B(7) is cast in wide terms. A “workplace” is not confined to the place of work of the participants but extends to a place at which the participants work or otherwise carry out functions in connection with being a workplace participant. Section 28B(6) itself speaks in similar terms of “a place that is a workplace” of both participants. The inclusive definition of “place” in s 28B(7) is also in wide terms and facilitates various means of transport (“ship, aircraft or vehicle”) being a “workplace” if the other criteria for that definition are satisfied. That wide approach recognises that work or work based functions are commonly undertaken in a wide range of places (including on various means of transport) beyond the principal or ordinary place or places of work of workplace participants from a common workforce. Such places would commonly include the premises of clients, suppliers, associated businesses, conference halls and other venues where work functions are held and in transportation vehicles during work related travel. The underlying policy objective is accommodated by such a construction and such a construction is also consistent with the scope of the other subsections of s 28B.

27. The restriction which limits the operation of s 28B(6) and maintains a sufficient nexus between the place and the workforce is that the place must be “a workplace of both” workplace participants.

28. I need not identify the outer limits of the scope of s 28B(6). It is sufficient for current purposes to observe that there is no warrant for adopting the construction for which Mr Vergara contends.

29. There is no issue that the LLA office was, at the relevant time, the usual place of work of both Mr Vergara and Ms Ewin. In relation to any sexual harassment by Mr Vergara of Ms Ewin at that place, if all other requirements are satisfied, there will have been a contravention of s 28B(6) irrespective of whether the sexual harassment occurred during working hours and irrespective of the purpose for their attendance at that place. The requisite nexus will have been provided by the fact that the LLA office was a place where both Mr Vergara and Ms Ewin worked.

30. As will become apparent, some of the incidents of sexual harassment alleged against Mr Vergara occurred outside of the LLA office. Whether the requisite nexus required by s 28B(6) existed in the place at which the incident occurred is a matter I will deal with when I consider each of the incidents concerned.

31. Further, I reject Mr Vergara’s contention that the meaning of “workplace” is confined to premises exclusively utilised by the workforce of which the workplace participants are members. That construction was put by Mr Vergara in aid of his contention that an office building corridor situated between the front door of the LLA office and the lifts on the same floor, was not a “workplace” of Ms Ewin and himself. The wide definition of “workplace” provides no textual support for Mr Vergara’s contention. No discernible policy objective was suggested for such a construction and the object of the provision would be significantly undermined if such a narrow construction was adopted. Section 28B(6) fixes upon a place where workplace participants of the same workforce gather and interact in order to work. The objective of eliminating sexual harassment in the workplace would be significantly undermined if, associated common areas such as entrances, lifts, corridors, kitchens and toilets were construed as falling beyond the geographical scope intended by s 28B(6).

    THE EVIDENCE

32. Before recording the factual findings I have made, it is necessary that I record the manner in which I have weighed different forms of evidence, including the approach I have taken to the reliability of evidence given by each of Mr Vergara and Ms Ewin.

33. In searching for the truth, judges are often left to choose between competing and conflicting versions of the same event.  This case has been no exception.  The determination of this application has required me to choose between diametrically opposite accounts of the same event on countless occasions.  I have done so recognising that a witness’ preconceptions may influence his or her perceptions of an event and that the later recount of that event will involve a reconstruction of a memory which may be unconsciously affected by a tendency to revise the memory of a past event by reference to subsequent events or some other process of rationalisation.  When the relevant events occurred more than three years before the event is recounted, as was the case for each of the witnesses called in this proceeding, there is greater scope for revision to intrude.  For that and other reasons, reconstructed memory becomes less reliable. 

34. The events concerned and the nature of the allegations to which those events relate, can also bear upon the reliability of reconstructed memory.  A case like this, in which the background facts involve allegations of rape and in which emotions and animosities between the principal protagonists remain raw, provides a context where reconstructed memory faces the most difficult of challenges.

35. It will come as no surprise that I have, in the circumstances, found it necessary to adopt a cautious approach to the evidence of the two principal protagonists, especially where their conflicting evidence relates to a central issue in the case.

36. Inevitably, my assessment of the evidence has been influenced by general impressions I have formed of each of Ms Ewin and Mr Vergara.  I well appreciate that an assessment based upon the demeanour of a witness may be of limited value.  However, the impressions which I have formed are based on a great deal more than my extensive opportunity to see Ms Ewin and Mr Vergara in the witness box. 

1. The evidence is replete with a large body of prior statements made by both Mr Vergara and Ms Ewin which I will shortly identify.  That material has provided a useful point of comparison with evidence given by those witnesses in the witness box.  That was particularly so in relation to statements contained in recorded conversations that were unrehearsed when made and which, at the time the relevant witness made them, the witness must have regarded the statement as unlikely to face critical review.

2. Whilst I have made many comparisons between evidence given in the witness box and that contained in prior statements, I have been mindful that by reason of the passage of time some inconsistency is to be expected, particularly in relation to matters of detail and events of relative insignificance. 

3. My task of assessing the evidence has been made difficult because I have ultimately come to the view that, to varying degrees, evidence given by both Mr Vergara and Ms Ewin was unreliable and had to be rejected.

4. The degree to which I found each witness unreliable and the cause I attribute to that unreliability should be identified in general terms now, as it will help the reader to better understand my reasoning.  The reasons why I rejected evidence of particular events is set out later as I consider each of those events. 

   Mr Vergara’s credit

5. My general impression of Mr Vergara is that he is an arrogant individual with little or no regard for the truth.  During the trial, I frequently formed the view that Mr Vergara was making no attempt to give evidence candidly and honestly.  He was generally unwilling to make reasonable concessions.  He resisted doing so, even in the face of documentary evidence which he must have appreciated was undeniably against him.  A telling illustration of that propensity, which I later record, was Mr Vergara’s refusal to concede that the subject of an email exchange with his wife concerned his dissatisfaction with their sex life. 

6. Mr Vergara’s answers in cross-examination were often non-responsive and evasive.  When he got into difficulty, he accused Ms Ewin’s Counsel of playing semantic games.  He often attempted to justify prior inconsistent statements by reference to the “context” in which the earlier inconsistent statement had been made.  However his evidence did not demonstrate why the earlier context made the inconsistency explicable. 

7. Mr Vergara gave an elaborate account of events in which he sought to cast Ms Ewin in the role of sexual predator and he an unwilling victim forced into submission because he feared for his job.  Evidence of a prior recorded statement made by Mr Vergara in which he conceded that he had said to Ms Ewin, “I want to fuck you till you scream”, was tellingly at odds with the role of victim in which Mr Vergara’s sought to cast himself in his evidence.  This construct created by Mr Vergara in his evidence was also entirely at odds with what Mr Vergara may plausibly have been expected to tell police in defence of the allegation made by Ms Ewin that he had raped her.  There were several other occasions, including the pretext conversations which I will shortly identify, where it might have been expected that Mr Vergara would have raised the sexually predatory behaviour of Ms Ewin if Mr Vergara’s later description of that behaviour even approximated the truth. 

8. Once it became obvious that this construct was of recent invention and untruthful, and given the deliberateness and the scale of the fabrication, the conclusion that Mr Vergara was a witness prepared to say anything he thought would assist his case was inescapable. 

9. Whilst I did not regard Mr Vergara as a credible witness, I have not necessarily rejected all of his evidence.  I accept that a witness like Mr Vergara may have taken a strategic approach to the falsification of his evidence.  The difficulty of course, is that a witness who does that invites the Court to speculate as to when the truth is being told and when it is not.  The Court should not, and I have not, engaged in any such speculation.  I have approached all of Mr Vergara’s evidence with suspicion.  I have rejected it unless a cogent foundation existed (whether by reason of corroborating evidence or otherwise), which permitted me to regard Mr Vergara’s account as likely to be reliable. 

10. I have also taken into account in that regard, the extent to which the evidence was in contest.  As I regarded Ms Ewin’s evidence as generally more reliable than Mr Vergara’s evidence, unless there were particular reasons not to do so, I preferred the evidence of Ms Ewin.  I did not accept Mr Vergara’s evidence when it conflicted with that given by other witnesses.

    Observations about Ms Ewin’s evidence   

11. It is unavoidable that I make some observations about the reliability of Ms Ewin’s evidence. 

12. At the time of the events which are the subject of this proceeding, Ms Ewin was a hardworking individual who liked to project herself as capable and able to cope with any eventuality.  She was however, a person far more vulnerable than the image of herself that she tried to project.  I have no reason to think that in her dealings generally, she was other than an honest person respectful of the truth. 

13. Ms Ewin’s life has been greatly affected by the events with which this case is concerned.  I am satisfied for reasons I will later explain that she suffers from PTSD.  Ms Ewin genuinely believes that she was raped by Mr Vergara.  It is not surprising that, in those circumstances, she would have difficulty in distancing herself emotionally from the events which she regards as having destroyed her life. 

14. Her animosity towards Mr Vergara was still raw at the time that she gave evidence.  Ms Ewin’s capacity to control that animosity must have been significantly undermined by the fact that much of that evidence was given over four or five days of cross-examination conducted directly by Mr Vergara.

15. The direct cross-examination in a criminal case of an alleged victim of a sexual assault by the alleged perpetrator is prohibited by legislation in a number of States: see for example ss 356 and 357 Criminal Procedure Act 2009 (Vic), s 294A Criminal Procedure Act 1986 (NSW) and s 106G Evidence Act 1906 (WA). The underlying policy considerations for legislation of that kind including the potential for intimidation and re-victimisation are obvious and apply equally to a case such as this. Despite the potential problem being raised well in advance of the trial and pro bono legal advice being made available to Mr Vergara in relation to Mr Vergara’s rights and any restriction that the Court may impose, no application was ultimately made by Ms Ewin that Mr Vergara’s be precluded from personally
    cross-examining her.  Ms Ewin did apply for her cross-examination to be conducted by video link and that is what occurred.

16. In my view, the reliability of Ms Ewin’s evidence was affected by being
    cross-examined directly by Mr Vergara.  That was illustrated on a number of occasions, which I later detail, where I consider Ms Ewin gave untruthful answers to Mr Vergara but quite different and likely truthful answers to the same questions when those questions were put to her by the Court.  There were other occasions where, despite her efforts to maintain control, Ms Ewin’s animosity usurped her capacity to give her evidence candidly and honestly. 

17. In addition, the reliability of Ms Ewin’s evidence was also affected by her lack of objectivity on particular issues.  I suspect that she suffered from a not unnatural propensity to assume the worst of Mr Vergara and also to try to absolve herself from responsibility for any perceptions (or misperceptions) that by reason of her own intoxication she had placed herself in a vulnerable position. Ms Ewin convinced herself that Mr Vergara had drugged her with a date-rape drug prior to raping her.  The other possible and, on the available evidence, more plausible explanation for Ms Ewin’s heavily intoxicated state on the night in question was her own consumption of alcohol.  Her evidence as to the amount of alcohol she consumed was evidence that I regard as unreliable. 

18. Ms Ewin was particularly sensitive about any allegation that she had failed to report Mr Vergara or take action against him for the conduct she alleged he had engaged in.  She was defensive as to that topic and gave some evidence which I regarded as untruthful.  That evidence went primarily to the question of when it was she first realised that it was Mr Vergara who had sexually assaulted her, given that (as I accept) she had no memory of the alleged incident.  The Nurse-On-Call conversation, which I will shortly explain, shows that on the morning of Sunday 17 May, Ms Ewin was clear in her own mind that she had been sexually penetrated on the evening of 15 May and had surmised that it must have been Mr Vergara who had assaulted her.  In other evidence she sought to explain her alleged lateness in reporting the incident to her lack of clarity as to who it was who had sexually assaulted her. 

19. I was also concerned that by reason of her animosity towards Mr Vergara, Ms Ewin tended to overstate her case by embellishing the frequency and extent of Mr Vergara’s sexual propositioning of her. 

20. I have not formed the view that Ms Ewin was an actively dishonest witness.  On the essential features of her account of the principal events, Ms Ewin’s evidence was consistent and cogent.  However, I have taken a cautious approach to accepting Ms Ewin’s evidence and particularly so in relation to those topics mentioned above, where I considered her reliability to be particularly vulnerable.  I have only accepted Ms Ewin’s evidence where I regarded it to be cogent and not significantly inconsistent with the prior statements she had made.   Where her evidence was corroborated by other evidence, I had no difficulty accepting it. 

    Prior statements of witnesses

21. As is already apparent, beyond the evidence given by witnesses at the hearing, a number of prior statements made by those witnesses, which included their accounts of many of the relevant events, were tendered and relied upon.  In the course of these reasons, I will refer to many such statements.  What follows is a description of prior statements which require some explanation as well as a list of the prior statements relied upon for the most significant witnesses called.

22. On the morning of 17 May 2009, Ms Ewin made a telephone call to a telephone nursing service named “Nurse-On-Call”.  Ms Ewin was seeking advice on an anonymous basis regarding the steps she should take to deal with the risk of an unwanted pregnancy.   A recording of the telephone conversation was subpoenaed and tendered by Ms Ewin.  An unofficial transcript of the recorded conversation was prepared by Mr Vergara and with some amendment, was accepted as accurate by Counsel for Ms Ewin.  I have read the transcript and I have also listened to the recording.

23. In June 2009, Ms Ewin made a formal complaint to Victoria Police in which she alleged that Mr Vergara raped her on 15 May.  As part of the police investigation, Ms Ewin made telephone calls to Mr Vergara on 1 July 2009 and on 17 July 2009 from a police station in West Melbourne. These calls were recorded and are referred to as “pretext” calls.  Their nature and the fact they were being recorded was not then known to Mr Vergara.  Recordings and transcripts of these telephone conversations were subpoenaed and tendered by Ms Ewin.  I have read the transcripts and listened to the recordings.

24. In the course of the police investigation, Mr Vergara was interviewed by police on 18 November 2009.  A video recording and the transcript of that interview were discovered by Mr Vergara.  Initially Mr Vergara objected to the tender of this evidence on the basis that it was improperly or illegally obtained.  However that objection was subsequently abandoned.  I have read the transcript of the police interview.

25. Ms Ewin submitted a worker’s compensation claim to LLA in September 2010.  The matter was referred to LLA’s insurer which appointed an investigator, MPOL Group (“MPOL”), to investigate Ms Ewin’s claims.  In January 2011, MPOL conducted interviews with a number of the witnesses who gave evidence in this proceeding.  The witnesses interviewed prepared statements that were said to record the evidence that they would be prepared, if necessary, to give in court as a witness.  I have read each of those statements.

26. A report was prepared for the purposes of this proceeding by psychiatrist, Professor Lorraine Dennerstein.  That report was tendered in evidence by Ms Ewin and Prof Dennerstein was called to give evidence at trial.  As part of her report, Prof Dennerstein prepared a detailed account of the events that are the subject of this proceeding, as related to her by Ms Ewin.

27. In relation to Ms Ewin, the relevant prior statements are:

    ·records of the telephone conversation between Ms Ewin and a provider at Nurse-On-Call on 17 May 2009 (“the Nurse-On-Call conversation”);

    ·a statement of Ms Ewin given to Victoria Police on 11 July 2009 (“Ms Ewin’s statement to police”);

    ·a letter from Ms Ewin to the directors of LLA dated 29 June 2010;

    ·a letter from Ms Ewin to the Director of Public Prosecutions dated 30 June 2010;

    ·a letter from Ms Ewin to the Centre Against Sexual Assault dated 30 June 2010;

    ·a statement of Ms Ewin given to MPOL on 18 January 2011 (“Ms Ewin’s MPOL statement”); and

    ·a report by Professor Dennerstein dated 6 December 2012 (“Prof Dennerstein’s report”).

28. In relation to both Ms Ewin and Mr Vergara, the relevant prior statements include records of two pretext telephone conversations between Ms Ewin and Mr Vergara on 1 July 2009 and 17 July 2009 (“the 1 July pretext conversation” and “the 17 July pretext conversation”).

29. In relation to Mr Vergara, a record of interview by Victoria Police on 18 November 2009 (“Mr Vergara’s record of interview”) was also relied upon.

30. In relation to Mr Donovan Newton, the Chief Financial Officer of LLA, the relevant prior statements are:

    ·a statement of Mr Newton given to Victoria Police on 30 December 2009 (“Mr Newton’s statement to police”); and

    ·a statement of Mr Newton given to MPOL on 19 January 2011 (“Mr Newton’s MPOL statement”).

31. In relation to Ms Debra Thomas, an employee of LLA, her prior statements are:

    ·a statement of Ms Thomas given to Victoria Police on 22 August 2009 (“Ms Thomas’ statement to police”); and

    ·a statement of Ms Thomas given to MPOL on 21 January 2011 (“Ms Thomas’ MPOL statement”).

32. Statements given to Victoria Police by Orea Tsafanos, an employee at the Insignia Bar and by Cameron Lowe, an employee of the Melbourne Aquarium, on 9 August 2009 and 30 December 2009 respectively, were also relied upon.  As were statements given to MPOL by Virginia Kubik who provided human resources services to LLA and Mark Lafferty, an employee of LLA, on 19 January 2011 and 21 January 2011 respectively. 

    Other evidentiary matters

    Procedural fairness issues

33. Despite my urging that he seek legal representation, including my indication that access to the Court’s pro bono scheme was likely to be available, Mr Vergara was steadfast in his resolve that he could best represent himself at the trial.  The fact that Mr Vergara was not legally represented led to some difficulties which require a short explanation.

34. The trial was conducted on the basis that witnesses would give oral evidence.  In advance of the trial, I directed that an outline of the expected evidence of each witness be exchanged so that each party had notice of the substance of the evidence likely to be called by the other.  That was done.  However, when Mr Vergara first stepped into the witness box to give his evidence, he applied to rely upon a comprehensive pre-prepared witness statement (“Mr Vergara’s witness statement”) as his evidence-in-chief.  I was persuaded to permit Mr Vergara to rely on his witness statement.  Given that Mr Vergara was unrepresented, that seemed a convenient way to proceed.  Whilst Counsel for Ms Ewin did not oppose Mr Vergara being permitted to rely on his witness statement, objections were raised as to the content of that witness statement.     

35. Mr Vergara’s witness statement dealt with a range of conversations and other conduct involving Ms Ewin which, amongst other accusations, described Ms Ewin as having engaged in what Mr Vergara characterised as sexually predatory behaviour.  None of that conduct and the accusations made by Mr Vergara in reliance upon it was put to Ms Ewin when she was earlier cross-examined by Mr Vergara.  Counsel for Ms Ewin objected to the Court receiving into evidence those passages in Mr Vergara’s statement which should have been but were not put to Ms Ewin in cross-examination.  Counsel relied on the rule in Browne v Dunn to support Ms Ewin’s objection to the tender of that evidence.

36. I determined that, unaware of the rule in Browne v Dunn, Mr Vergara had not given Ms Ewin an opportunity to deal with a range of conversations and other matters in which she was involved which were the subject of Mr Vergara’s witness statement. I did not however consider that the evidence in question should be excluded. Instead, I determined that I would provide Ms Ewin with an opportunity to rebut the evidence. I considered that such a course was available by reason of s 46(1) of the Evidence Act 1995 (Cth). Ms Ewin’s Counsel proposed that an affidavit from Ms Ewin be tendered but that the Court not permit Mr Vergara to cross-examine Ms Ewin in relation to her rebuttal evidence. It was contended, and I agreed, that any further cross-examination of Ms Ewin would be oppressive. At that point, Ms Ewin had been in the witness box for four or five days and had been the subject of cross-examination for three of those days. I also took into account Ms Ewin’s psychological condition and the fact that Mr Vergara had a prior opportunity, not taken, to cross-examine Ms Ewin about the matters which were likely to be covered in her rebuttal evidence. Pursuant to my ruling, Ms Ewin tendered an affidavit made on 10 December 2012 which set out her evidence in rebuttal (“Ms Ewin’s rebuttal evidence”).

37. Whilst Mr Vergara’s witness statement addressed chronologically the time period dealt with in Ms Ewin’s evidence and covered most of the events the subject of Ms Ewin’s sexual harassment claim, Mr Vergara did not directly deny much of the evidence of his conversations and his conduct given by Ms Ewin.  Instead, his evidence (given mainly through his witness statement) offered his own different account of the same events without directly addressing Ms Ewin’s account.

38. Additionally, in Mr Vergara’s cross-examination of Ms Ewin, although he tendered prior statements made by Ms Ewin, in the main, Mr Vergara did not take Ms Ewin to the parts of those statements which arguably contained inconsistent statements to the evidence given by her at the hearing. 

39. In assessing the evidence, I have taken an approach which gives some leeway to Mr Vergara by reason of the fact that his neglect was the likely consequence of his lack of legal representation.  I am satisfied that approach has not occasioned any significant procedural unfairness upon Ms Ewin.

40. Where Mr Vergara dealt with an incident and gave an account inconsistent with that given by Ms Ewin, I have treated that account as including a general denial of Ms Ewin’s account, despite Mr Vergara not having expressly made such a denial.  I have also taken into account inconsistencies between prior statements made by Ms Ewin and the evidence she gave at the hearing, despite the fact that Mr Vergara failed to give Ms Ewin an opportunity to directly deal with those matters.  Where I have done that, I have attached less weight to any inconsistency than I would have if Ms Ewin had been taken to it.

    Section 46PR of the Australian Human Rights Commission Act

1. In a proceeding such as this, the Court is not bound by technicalities or legal forms: s 46PR of the Australian Human Rights Commission Act 1986 (Cth) (“the AHRC Act”). In dealing with the evidence as described above and also in addressing the pleadings, I have endeavoured to avoid a legalistic approach and to instead focus upon on the substance of the case: Walker v Victoria [2012] FCAFC 38 at [81] (Gray J).

   Section 140 of the Evidence Act

2. The final matter I need to explain in relation to the task of assessing the evidence is that Ms Ewin bears the onus of proof and the applicable standard is the civil standard of proof prescribed by s 140 of the Evidence Act. Section 140 is in the following terms:

   (1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)   the nature of the cause of action or defence; and
            (b)   the nature of the subject‑matter of the proceeding; and
           (c)   the gravity of the matters alleged.

3. In determining whether I was satisfied that Ms Ewin’s case has been proved on the balance of probabilities, I was required to take into account the matters identified in s 140(2) of the Evidence Act.  In doing that, I applied the helpful observations made about the three matters mentioned in s 140(2) by Branson J in Qantas Airways Ltd v Gama (2008) 167 FCR 537 at [123]-[139] (referred to with approval by French and Jacobson JJ at [110]).

4. Those observations were made in a not dissimilar context to the present and where the requirements of s 140(2) were considered and applied to a claim involving allegations of contraventions of the Racial Discrimination Act 1975 (Cth) (“the RD Act”).

5. In considering the matters referred to in s 140(2), Branson J noted that moral opprobrium may, but will not necessarily attach, to discriminatory conduct (at [133]); anti-discrimination legislation is to be regarded as beneficial and remedial legislation (at [134]); that the absence of intent as a requisite element of the conduct proscribed diminishes the opprobrium attached to and the gravity of a finding of contravention (at [135]); and that not all contraventions are equally grave, the gravity of a contravention will vary depending upon the seriousness of the allegations made (at [137]).

6. Each of those observations made by Branson J in relation to the RD Act are apposite in their application to the SD Act. As Branson J said at [139], to adopt as a starting point a position that discrimination is a serious matter not lightly to be inferred, will have a tendency to lead a trier of facts into error. Her Honour continued:

   The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises, adopting the language of the High Court in Neat Holdings 67 ALJR 170; 110 ALR 449, that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved — and, I would add, the circumstances in which it is sought to be proved.  

7. The passage referred to by Branson J from Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 should be set out in full. At 170-171 Mason CJ, Brennan, Deane and Gaudron JJ said:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
   [Footnotes omitted.]

8. I now turn to consider the facts and record my findings.

   BACKGROUND FACTS

9. It is necessary to set out here the background facts relating to Ms Ewin, Mr Vergara and their workplace.  Unless otherwise indicated, these facts are non-contentious.

10. Ms Ewin is a Chartered Accountant by profession.  At the time of the events the subject of this proceeding, Ms Ewin was 36 years old and was recently married.  Ms Ewin started out her career at a large international accounting firm before moving overseas for a period and eventually settling in Melbourne and taking up a series of finance and accounting roles with a number of large Australian companies. 

11. Mr Vergara is also a qualified accountant. At the time of the events the subject of this proceeding, Mr Vergara was 40 years old.  He was married and had children.  Mr Vergara obtained an accounting degree from Victoria University and was first employed at a large international accounting firm.  Following that role, Mr Vergara undertook a range of finance and accounting jobs for a number of different companies both in Australia and abroad.  For the most part Mr Vergara was employed in accounting roles which he described as “intermediate” in terms of his seniority.

12. In late 2008, Ms Ewin was employed on a permanent basis as Group Financial Controller for LLA.  LLA was the parent operating entity for various leisure businesses including aquariums and ski fields, located in Australia and across Asia.  Around the time Ms Ewin commenced employment with LLA, the company’s head office was relocated from Southport in Queensland to Melbourne and the existing finance and accounting staff were retrenched.  This occurred following the near financial collapse of LLA, which necessitated a recapitalisation and financial restructure of the company. 

13. Ms Ewin was employed to oversee the transfer of LLA’s accounting functions from its offices in Queensland to its new headquarters in Melbourne as well as to assist in the preparation of accounts and to oversee other finance and accounting staff.  Ms Ewin reported directly to the LLA Chief Financial Officer, Donovan Newton who in turn reported to the company Chief Executive Officer, John Schryver.

14. Due to her significant responsibilities, Ms Ewin’s workload whilst at LLA was immense and she was regularly working 14-hour days. 

15. In Melbourne, Ms Ewin oversaw a small team of finance and accounting staff.  Initially Ms Ewin had one full-time employee reporting to her but in March 2009, that employee was fired. In the same month two new accounting staff were retained reporting directly to Ms Ewin.  Mark Lafferty was hired as a full-time employee in a junior accounting role and Mr Vergara was engaged through Robert Walters in a more senior accounting role on a short-term contract basis. 

16. Ms Ewin, Mr Vergara and Mr Newton gave varying accounts of the events surrounding Mr Vergara’s engagement by LLA.  The facts that are not in dispute are that Mr Newton passed on resumes of suitable candidates provided by Robert Walters to Ms Ewin and Ms Ewin was charged with conducting interviews.  Ms Ewin then met Mr Vergara at a coffee shop close to the LLA office and conducted an interview.  During that interview, Mr Newton attended to meet Mr Vergara.  Both Ms Ewin and Mr Newton considered that Mr Vergara was suitable for the role and Mr Vergara was subsequently retained to provide accounting services under a three month contract between LLA and Robert Walters.  Robert Walters separately contracted with Mr Vergara for Mr Vergara to provide services to LLA. 

17. While Ms Ewin claimed that the ultimate decision to hire Mr Vergara rested with Mr Newton, it was Mr Vergara’s contention that Ms Ewin offered him the role before Mr Newton attended at the interview and it was Ms Ewin who had made the decision to hire him.  Mr Newton gave general evidence that Ms Ewin was primarily responsible for identifying staff to work for her but that he signed off on her choice.  Mr Newton stated that he was effectively employing staff at Ms Ewin’s behest.

18. Following the interview, Mr Vergara entered into an employment contract with Robert Walters for the purpose of supplying his services to LLA. The agreement described Mr Vergara’s tasks and duties in the following terms: “Interim Financial Controller (various projects and accounting duties)”.  Under the contract, Mr Vergara was to comply with all directions, rules and policies given to him by LLA and was to conduct his work at the places nominated by LLA.  The contract stated that it was anticipated that Mr Vergara would work 40 hours per week and would be paid an hourly rate (inclusive of a 20% casual loading) plus an additional nine per cent superannuation.  As a casual employee, the contract stated that Mr Vergara was not entitled to any paid annual, personal, compassionate or parental leave and would not receive payment if he did not work.  The term of the contract was from 16 March 2009 to 12 June 2009.

19. Mr Vergara tendered without objection a document setting out terms and conditions for the supply of temporary contractors by Robert Walters.  The document is dated 10 November 2008 and is signed by Mr Newton of LLA.  Although it was not expressly asserted by the parties, I will proceed on the basis that those terms and conditions applied to Mr Vergara’s assignment at LLA.  The terms and conditions state that Robert Walters introduces and supplies a temporary contractor to the client (in this case LLA) to perform the assignment specified in a schedule. The schedule was not tendered.  In performing the assignment, a temporary contractor remains an employee of Robert Walters which is solely responsible for the payment of superannuation, worker’s compensation and taxes incidental to the employment of the temporary contractor.  Robert Walters is to receive payment at a specified hourly or daily rate in accordance with the hours or days worked by the temporary contractor and is responsible for paying wages to the temporary contractor.  The client (LLA) is responsible for the direction and control of the temporary contractor during any assignment and is responsible for all acts, omissions and errors of the temporary contractor.  If the assignment is altered in any way the client must notify Robert Walters and if the assignment is extended, the terms and conditions state that they continue to apply.

20. For reasons that will later become clear, it is necessary to set out various background facts relating to the LLA offices, including their location and internal arrangement.

21. Following relocation from Queensland, the LLA head office was located at level 13, 474 Flinders Street, Melbourne.  The office building was on the corner of Flinders Street and Highlander Lane, which is located between King Street and William Street in the Melbourne central business district.  This location is approximately half way between Flinders Street and Southern Cross train stations and while staff tended to commute via Southern Cross, some also used Flinders Street station. 

22. LLA occupied only a small part of level 13 which also housed the offices of numerous other tenants.  The floor contained a communal kitchen shared by all tenants on level 13 as well as men’s and ladies’ toilets, a change room and access to four lift wells.  From the lifts it was a short walk across a corridor to the office of LLA.

23. The staff located at the LLA office in Flinders Street included Mr Schryver, Mr Newton, Ms Ewin, Mr Vergara, Mr Lafferty, Ms Thomas who was the executive assistant to both Mr Newton and Mr Schryver as well as Chirine Chin, a compliance officer and John Peng, a business analyst.

24. The LLA offices were housed in two adjoining sections, each accessed from the corridor which gave access to the lifts.  One section contained the offices of the CFO and CEO along with their executive assistant, Ms Thomas. The other section was occupied by the remaining staff and a photo copy room.  LLA also had a board room on the same floor separated from the staff offices by the offices of another tenant. 

25. Ms Ewin, Mr Vergara and Mr Lafferty shared an office containing three work stations.  Ms Ewin had an ‘L-shaped’ desk with one part adjacent to the window and the other part facing across the room towards a second desk lined up against the window.  Ms Ewin had her computer at the junction of the ‘L-shaped’ desk and sat facing across the room towards the second desk.  That second desk was occupied by Mr Vergara who sat facing out the window.  Mr Lafferty sat away from the window, close to the doorway to the office.  Mr Lafferty sat with his back to his colleagues looking outward into the corridor towards the photo copy room and an alcove where Mr Peng was seated.  The light switch for this office was next to Mr Lafferty’s desk, at the entrance to the room. 

    APRIL AND EARLY MAY 2009

26. The earliest pleaded allegation of sexual harassment relied upon by Ms Ewin concerns conduct alleged to have occurred on 12 May 2009.  There was however conduct in April and early May 2009 that was relied upon by Ms Ewin in support of her pleaded case.  There was also conduct in that period upon which Mr Vergara relied.  I will deal first with the conduct relied upon by Mr Vergara.

27. Mr Vergara deposed that from early April 2009 the behaviour of Ms Ewin towards him was “intrusive, flirtatious and coercive” and that Ms Ewin engaged in what he characterised as “sexually predatory behaviour” which made him very uncomfortable and wary of her.

28. Mr Vergara deposed that from early April 2009, Ms Ewin regularly made bodily contact with him by rubbing the top part of his arm when she was happy with a task that he had completed, that she would put her arm around his shoulder whilst he was seated and that she would talk to him closely from one side.  He said that he found that contact quite uncomfortable and abnormal but initially did not think much of it.  However, he deposed that the “touchy” behaviour increased in intensity and became inappropriate massaging.  He claimed that in early April 2009, Ms Ewin told him that she had undertaken a massage course and that she was an expert in the field.  Ms Ewin told him that she would like to give him a massage because he looked tired and stressed.  He thought that the offer of a massage was inappropriate and he tried to ignore the suggestion.  His evidence was to the effect that despite his reluctance, Ms Ewin walked behind him whilst he was sitting at his desk and proceeded to put her hands on his shoulders and his neck and started to massage him.  He asserted that whilst he thought it very uncomfortable and awkward, he felt that he wasn’t in a position, as a temporary contractor, to resist his boss.  He said that the massaging continued and occurred a further handful of times over the following four or five weeks.  The massaging would typically take place late in the day when others had left the office.

29. Mr Vergara deposed that the massaging continued to the point where he had enough and asked Ms Ewin to stop.  She responded that he should “chill-out” and told him that it was just a massage and that it would help relax him.  Ms Ewin would commence massaging him and then ask for him to turn his chair around and would proceed to massage him from a frontal position whilst he remained seated.  She faced him and demanded that he close his eyes and rest his head on the back of his chair.  Ms Ewin would then place one of her legs in between his legs and her other leg on the outside of his leg and at all times her legs were touching his.  Ms Ewin’s hands would slowly work from his head to his neck and his shoulders and then up again to his head.  That would continue for about two or three minutes each time.  On many occasions Mr Vergara tried to break “this personal contact” by referring to a need to call his wife or pick up his son or by saying that he needed to go to the toilet.

30. Mr Vergara further stated that as, what he characterised as Ms Ewin’s “sexual predatory behaviour”, intensified, he decided to bring to work a photograph of his children in order to demonstrate to Ms Ewin that he was happily married and was a proud father of three young children.  Despite the photographs triggering conversations with Ms Ewin about his children and family life, Ms Ewin was not discouraged from her physical touching and advances towards him.

31. Mr Vergara also claimed that towards the end of April 2009, Ms Ewin started asking him about personal matters involving his wife.  He stated that simple questions were followed by more intrusive questions such as the shape of his wife’s body including the size of her breasts.  When Ms Ewin asked about his wife’s breasts, she also stuck her chest out and pulled her blouse tightly around her chest so that he could get “a visual comparison”.  Mr Vergara claimed he was shocked by these actions and was astounded by Ms Ewin’s inappropriate behaviour which made him feel embarrassed and awkward.  From this point onwards, Mr Vergara claimed that Ms Ewin’s questions got more and more personal and she specifically started quizzing Mr Vergara about his intimacy with his wife.  Ms Ewin told him that she was questioning herself as to whether she had made the right choice in marrying her husband.  She told Mr Vergara that her sex life with her husband was less than fulfilling.  Ms Ewin then asked him how often he and his wife had sex to which he responded he would not share that with her.  In response, Ms Ewin said that she was just seeking a comparison to see if she had drawn the short straw in relation to intimacy with her partner.  Mr Vergara further stated that Ms Ewin told him that her husband takes Viagra because he suffers from erectile problems and that she found that very frustrating.

32. Mr Vergara deposed that as part of the same conversation, Ms Ewin then asked him about the manner in which his wife had delivered their children.  He said that whilst he didn’t like the personal nature of the question, he thought it was innocent enough and told Ms Ewin that his children had been born naturally and without caesarean section.  Ms Ewin then stated words to the effect, “How awful it must be for women to lose elasticity down there”.  That, he stated, was followed by what Mr Vergara characterised as a vile comment as follows, “You must miss the enjoyment and pleasures of a tight vagina, having kids loosens everything, so I’ve been told”.  Whilst he suggested that he was horrified by these comments, Mr Vergara’s evidence was that because Ms Ewin was his direct boss and he feared her dismissing him, he held his composure and explained to Ms Ewin, “God created a perfect female reproductive system which enabled the female body to retract in every regard”.

33. Mr Vergara deposed that during the last week in April (or possibly early May), Ms Ewin suggested that the two of them go out for drinks after work to unwind.  She made a comment about her work ethic and said that she liked to work hard and play even harder. 

34. Other than in relation to the alleged massaging, none of the conduct alleged as part of Mr Vergara’s account of Ms Ewin’s “sexually predatory behaviour” was put to Ms Ewin in Mr Vergara’s cross-examination of her.  In her rebuttal evidence, Ms Ewin denied the truthfulness of the evidence relating to her alleged predatory behaviour which she had not been given the opportunity to deal with whilst giving her oral evidence.  She accepted that Mr Vergara had brought into the office a photo of his children.

1. As explained above, in calculating Ms Ewin’s loss of both past and future earning capacity, I have assumed that in order to mitigate her loss Ms Ewin ought to have spent 12 months working part-time in a low stress work environment, then 12 months working full-time in a low stress work environment and that after such a period, Ms Ewin ought to have been ready to return to full-time work at a level similar to that at which she was working at LLA.  I have allowed Ms Ewin a period of 6 months of unemployment in between each job in recognition of the difficulties she would likely have experienced in finding appropriate work.

2. The calculation of Ms Ewin’s loss of future earning capacity proceeds on the basis of these assumptions. If she had taken the necessary steps to mitigate her loss, in the month following the commencement of the trial, Ms Ewin would have earned $7,000 working full-time in a low stress work environment before being unemployed for 6 months and then returning to work at the same rate of pay she received at LLA by 1 July 2013.  I have assumed had the sexual harassment not taken place that Ms Ewin would have earned a salary of $10,000 per month.  Therefore in the 7 month period following the trial and preceding her return to work at her pre-harassment rate of pay, I assess Ms Ewin’s loss of future earning capacity at $63,000.  I will allow that amount in compensation for Ms Ewin’s loss of future earning capacity.

   General damages – pain and suffering and loss of amenities

3. There can be no doubt that Ms Ewin has suffered greatly as a result of the sexual harassment inflicted upon her.  Her immediate physical injuries included pain to her back and neck but her psychological injuries have been far more severe, having endured for over 3 years and being likely to continue for some time.

4. Prior to the harassment, Ms Ewin was a confident, highly functioning individual who was outgoing and socially active.  Her reaction to the sexual harassment has resulted in dramatic changes to both her personality and her lifestyle.  That has substantially diminished Ms Ewin’s quality of life and caused her substantial pain and suffering.

5. In the period between the harassment and the trial, Ms Ewin spent most of her time at home alone.  She was frequently teary.  She had difficulty sleeping and experienced recurring nightmares which caused her to grind her teeth and required her to wear a protective mouth guard to bed.  She was often crippled with fear and suffered from agoraphobia.  She was scared to take public transport and her fear of Mr Vergara led her to install security cameras in her former home.  Ms Ewin deposed and I accept that she became withdrawn.  She was more disconnected from her family and more alienated from her friends.  She had difficulty trusting men and she rarely attended social gatherings.  She experienced suicidal ideation.

6. Ms Baldini, with whom Ms Ewin has had very extensive counselling, described Ms Ewin’s sense of physical violation as a strong factor in her sense of loss over the miscarriage she suffered in July 2010.  Ms Baldini considered that Ms Ewin’s heightened sensitivity to abusive relationships has factored into her loss of friendship groups and the contraction of her social world.  Ms Ewin’s loss of trust in others has played a primary role in her incapacity to feel comfortable in her social interactions, including when travelling on public transport.  Her relationship with males in particular has been altered and her tolerance for uncertainty in relationships was described by Ms Baldini as minimal.  Ms Baldini considered that Ms Ewin’s recovery will need to include rebuilding her social life and her professional identity. 

7. Prof Dennerstein observed that Ms Ewin had depressed mood and was experiencing tearfulness triggered by reminders of the harassment.  She observed that Ms Ewin had psychic and somatic anxiety and had experienced panic attacks at times.  Ms Ewin was agoraphobic, had middle insomnia and was awake for hours during the night.  She had lowered motivation.  She had poor concentration and memory and had difficulty finishing things.  She had reduced sexual interest.  She had a fear of a foreshortened future.  She continued to feel numbed and detached.  She was socially withdrawn.

8. Prof Dennerstein described Ms Ewin’s symptoms as chronic and likely to persist.  Ms Baldini considered that Ms Ewin’s trust in others had been permanently affected and that whilst Ms Ewin’s chronic symptoms have shown some slight improvement, they are likely to be permanent and require Ms Ewin to adapt and adjust her life to cater for anxiety related symptoms.  Both Ms Baldini and Prof Dennerstein were hopeful that with ongoing support and treatment Ms Ewin will improve, particularly once the litigation is completed and Ms Ewin can move on.

9. The assessment of general damages in compensation for pain and suffering, for loss of amenity or enjoyment of life and for other intangibles, is not a science and by its nature is not readily capable of arithmetic calculation. Ultimately no amount of money can remove the pain and suffering and loss of amenity Ms Ewin has suffered.  All the Court can do is to seek to provide fair and reasonable compensation to Ms Ewin for her suffering.  The award of compensation should be neither restrained nor excessive.  Each case will be determined by its own particular facts.  With great caution, regard may be had to similar cases in order to determine an appropriate range within which the damages awarded should fall.

10. There are in that respect two cases under the SD Act in which substantial awards of general damages were granted in circumstances which bear some similarity to those faced by Ms Ewin. In Poniatowska, Mansfield J awarded $90,000 to reflect both past and future disadvantage for pain and suffering.  The case involved an employee who was subjected to inappropriate sexual harassment and sex discrimination in the workplace and was ultimately alienated and dismissed from her employment.  This caused her to develop a depressive illness resulting in some years of quite considerable personal distress and unhappiness.

11. The quantum of damages awarded by Mansfield J was unsuccessfully challenged on appeal: Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92 at [117]-[119] (Stone and Bennett JJ, with whom Dowsett J generally agreed).

12. In Lee v Smith [2007] FMCA 59, Connolly FM awarded $100,000 in general damages to a female applicant who had been the subject of physical sexual harassment which the Federal Magistrate described as rape. The applicant had suffered for five or six years. She had been unable to work or enjoy a relationship with her partner. Her social functioning with her son and other members of her family had been markedly impaired. The applicant suffered fear and had at times been suicidal. She had been diagnosed as suffering from PTSD, chronic adjustment disorder and depressed mood.

13. Ms Ewin’s loss of enjoyment of life was acute over the 3 year period to the date of the trial. My view that she could have transitioned through part-time work and into full-time work at a financial controller level by July 2013, is not intended to suggest that despite being capable of working, Ms Ewin did not nevertheless suffer from illness and that her loss of enjoyment of life was not substantial.  Whilst her loss of amenities will diminish, it will continue to be significant for several years at least.  I consider that the extent of her pain, suffering and loss of amenities justifies an award of $110,000 as compensation for both past and future disadvantage. 

    Past expenses

14. In this part of her claim Ms Ewin claimed the following expenses as medical, pharmaceutical and therapeutic expenses:

    (i)$312 for 30 consultations with medical general practitioners incurred between 29 May 2009 and 12 September 2012;

    (ii)$4,188 for 39 consultations with a psychologist between 29 September 2009 and 31 October 2012;

    (iii)$531 for dental treatment to deal with Ms Ewin grinding her teeth and chewing the inside of her mouth as a result of stress;

    (iv)$485 for remedial massage treatments over the course of 2010 to 2012 for muscle correction due to prolonged stress;

    (v)$610 for relaxation massage treatments over the course of 2010 to 2012;

    (vi)$27 for two visits to the chiropractor in May 2009;

    (vii)$1,112 for colonic irrigation and other treatment for irritable bowel symptoms which Ms Ewin deposed were exacerbated by Mr Vergara’s conduct;

    (viii)$180 for Bikram Yoga classes which Ms Ewin claims her psychologist encouraged her to attend to help Ms Ewin overcome her agoraphobia and for relaxation;

    (ix)$800 for the purchase of two Dachshund dogs which Ms Ewin also claims her psychologist encouraged her to purchase for companionship and to encourage Ms Ewin to leave the house (to walk the dogs); and

    (x)$426 for pharmaceutical purchases including for the morning-after pill and headache, irritable bowel, anti-depressant and sleeping medications.

15. In the category of “Other Expenses” Ms Ewin claimed the following expenses:

    (xi)$18,982 for the lease of a motor vehicle over a period of 36 months, including insurance and a service.  This was claimed to be necessary because of Ms Ewin’s inability to use public transport;

    (xii)$181 for airline tickets to visit family members interstate for emotional support;

    (xiii)$280 for airline tickets for Ms Ewin’s mother to travel from Brisbane to Melbourne to provide emotional support;

    (xiv)$280 for airline tickets for Ms Ewin to meet with her solicitors in Brisbane;

    (xv)$716 for home video surveillance equipment;

    (xvi)$97 for rape education and self-help texts;

    (xvii)$1,199 for a cross trainer exercise machine; and

    (xviii)$350 for leather boots.

16. I will allow the medical and pharmaceutical expenses listed at (ii), (iii), (iv), (vi), (vii) and (x).  In relation to the amount claimed at (i), the evidence tendered only supported expenses of $194 and accordingly I have made an award of that amount in relation to those expenses.

17. I am not persuaded that the expenses claimed at (v), (viii), (ix), (xi), (xii), (xiii), (xvi) and (xvii) are sufficiently connected to Mr Vergara’s conduct to be fully compensable. Insofar as there is some connection and therefore some proportional compensation due, I regard that to be subsumed in the compensation awarded under the head of general damages.

18. As to the amount claimed at (xiv), Ms Ewin’s choice of Brisbane solicitors was a matter for her.  There is no shortage of competent solicitors in Melbourne capable of representing her in relation to her claim.  I will not allow the expense claimed to travel to Brisbane to meet with her solicitors.  Nor will I allow the amount claimed at (xv) including because, as an improvement to her former home, the extent to which the amount expended by Ms Ewin involved any loss was not proved.

19. Item (xviii) relates to the leather boots that Ms Ewin was wearing at the time that she was physically sexually harassed.  The boots were taken by Victoria Police in order to investigate whether there were traces of Mr Vergara’s semen on them.  I accept that, in the circumstances, the boots could be of no further use to Ms Ewin.  She has claimed the cost of their purchase.  They were not new.  I will allow $200. 

20. In total, the amount I will allow for past expenses is $7,163.

    Future expenses

21. Ms Ewin also claimed future medical expenses comprising:

    (xix)$5,400 for monthly appointments with a general medical practitioner for a period of 5 years;

    (xx)$12,000 for monthly appointments with a psychologist for a period of 5 years; and

    (xxi)$3,600 for medication and pharmaceutical expenses over the next 5 years.

22. There was no evidence to support the need for Ms Ewin to see her general practitioner each month for a period of five years.  In the 3 years to trial she incurred expenses of $194 for consultations with her general practitioner.  I will not allow that claim. 

23. Ms Baldini gave evidence that Ms Ewin should continue to attend counselling sessions for five years and estimated the cost at approximately $11,000.  I do not accept that claim.  Ms Ewin claimed $4,188 for the cost of consultations with a psychologist for the three years prior to 31 October 2012.  Whilst I recognise that Ms Ewin is likely to have ongoing costs of this kind, there is no basis to believe that the costs will substantially increase over the next five years rather than substantially diminish.  I will allow $2,000 in relation to future psychological counselling.

24. Prof Dennerstein estimated that anti-depressant medication is likely to cost Ms Ewin around $30 a month.  No evidence was given as to the period over which it is likely Ms Ewin will be required to take such medication.  Assuming, as I have, that Ms Ewin’s symptoms will subsist for at least a further three years after the trial date, I will allow $1,000 for this item.

25. In total, the amount I will allow for future expenses is $3,000.

    Aggravated and exemplary damages

26. In Clarke v Nationwide News Pty Ltd  (2012) 201 FCR 389 at [347], Barker J identified both the purposes of and the difference between aggravated damages and exemplary damages:

    Aggravated damages are given to compensate a person where the harm suffered was aggravated by the manner in which the act was done.  In this, they are different from exemplary damages, which are intended to punish a wrongdoer and deliver a measure of moral retribution or deterrence: see Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149, per Windeyer J, whose observations to this effect were quoted with apparent approval in Gray v Motor Accident Commission (1998) 196 CLR 1 at [6], per Gleeson CJ, McHugh, Gummow and Hayne JJ.

27. Aggravated damages are considered to be compensatory and there is no question that it is within a court’s power to award such damages under s 46PO(4)(d). Aggravated damages were considered to be available under the predecessor provisions to s 46PO which were in similar terms: Hall v Sheiban at 239-240 (Lockhart J) and 282 (French J); Elliot v Nanda (2001) 111 FCR 240 at 297 (Moore J).

28. In this case, Ms Ewin claims aggravated damages in the amount of $100,000.  In closing submissions counsel for Ms Ewin stated the basis for such an award in the following terms:

    [T]hat whatever award your Honour strikes for general damages, there is always going to be a component in a case like this that general damages in the discretion of your Honour won’t sufficiently compensate the horror, the dislocation, the disruption of life, the smell of flashbacks, the suicide attempts, the change in lifestyle. There are present in this case, as in cases of similar sort, aspects that won’t be covered within what is commonly compensated for by general damages.

29. The considerations which Ms Ewin’s counsel referred to are considerations that have already been taken into account in the award of general damages.  Those same considerations cannot be used to justify a separate order for aggravated damages because to do so would involve “double dipping”: Clarke at [348] (Barker J). As Barker J noted in Clarke at [349] by reference to Elliot v Nanda at 297-298, there are a wide range of circumstances in discrimination cases which may give rise to an award of aggravated damages. Those circumstances might include the manner in which a party conducted its case and thereby exacerbated the hurt and injury suffered from the primary discrimination. However, Ms Ewin made no submission that the Court should award aggravated damages on a basis other than that which I have already identified. Nor am I of the view that a basis that would justify an order for aggravated damages was apparent. In the circumstances I will make no award for aggravated damages.

30. Ms Ewin’s Counsel contended that in a case such as this there is a powerful reason to award exemplary damages, namely, to express the Court’s disapproval of the conduct of the respondent, particularly in circumstances where that respondent has not been subjected to the litigious process of the criminal justice system.  What I understand counsel to have meant is that an award of exemplary damages should be made in order to punish Mr Vergara for conduct in relation to which he has not been punished.

31. The object of the award of exemplary damages for tortious conduct is to punish the wrongdoer and deter like conduct: Gray v Motor Accident Commission (1998) 196 CLR 1 at [15] (Gleeson CJ, McHugh, Gummow and Hayne JJ). As their Honours said in that case, the principal focus of the enquiry is upon the wrongdoer and not upon the person who was wronged. The party wronged will have been fully compensated without recourse to an award of exemplary damages.

32. Exemplary damages are punitive damages and are not compensatory in nature.  In Qantas Airways v Gama, French and Jacobson JJ (with whom Branson J generally agreed) noted at [94] that the damages available under s 46PO(4)(d) are “entirely compensatory”. However as Barker J noted in Clarke at [340] the Court’s broad power under s 46PO(4) to make such orders “as it thinks fit” may provide a capacity for the Court to award exemplary damages. That view is supported by the obiter observations of Stone and Bennett JJ (with whom Dowsett J generally agreed) that while s 46PO(4) refers only to orders for damages of a compensatory nature, there is no exclusion of other orders that may be made: Employment Services Australia v Poniatowska at [133]. 

33. In Clarke, Barker J did not need to finally determine that question because he was not satisfied that an award of exemplary damages would be appropriate.  I too, am not currently satisfied that an award of exemplary damages is appropriate.  That view may change if, for reasons I will shortly set out, it turns out that the quantum of damages that I propose Mr Vergara pay to Ms Ewin needs to be reduced by reason of any prior satisfaction of Ms Ewin’s entitlement to recover her loss.  Subject to that eventuality, I do not at present need to determine whether an award of exemplary damages is available.

34. Putting to one side the reservation just expressed and assuming that I have the power to impose an impost upon Mr Vergara for the purpose of punishment and deterrence, I would not do so for the same reasons that in tort an award of exemplary damages would not be made in circumstances such as the present. As Wilcox, O’Loughlin and Lindgren JJ explained in Sanders v Snell (1997) 73 FCR 569 at 601, exemplary damages will only be awarded if a court is satisfied that the quantum of the compensatory damages awarded has insufficient punitive force. Exemplary damages will be awarded “if, but only if”, the sum awarded as compensatory damages is inadequate to punish the wrongdoer for his or her conduct.

35. In my view the compensatory damages which I propose to award are not inadequate to punish Mr Vergara for the entirety of his unlawful conduct and to deter him and others from engaging in similar conduct.  The imposition of an additional sum to facilitate those objectives is neither necessary nor warranted.  On the basis of what I currently propose to award Ms Ewin, the contention made by Ms Ewin’s Counsel that Mr Vergara needs to be punished because he will not otherwise be punished is misplaced.

    The possibility of double recovery

36. I have assessed the entirety of Ms Ewin’s loss and damage arising from Mr Vergara’s conduct on 13 to 15 May 2009.  When this proceeding was commenced and largely relying upon the same conduct of Mr Vergara, Ms Ewin’s originating application included a claim against LLA and also against Robert Walters.  Ms Ewin’s claims against each of LLA and Robert Walters were mediated and resolved.  The terms of any settlement between Ms Ewin and LLA or Ms Ewin and Robert Walters have not been disclosed to me.  It is possible that in any such settlement, Ms Ewin’s entitlement to recover her loss arising from or consequential upon the same conduct relied upon here, has been satisfied in part or in whole.

1. It is well established that an applicant may not recover from one or more respondents an amount that is in excess of his or her loss: Baxter v Obacelo Pty Ltd (2001) 205 CLR 635. It does not matter that the claims against the various respondents arise under different causes of action. Where relief is sought in respect of the same loss, recovery will be limited by the extent of the applicant’s loss. This is a principle frequently applied in relation to statutory schemes for the payment of damages or compensation: see SAS Trustee Corporation v Budd [2005] NSWCA 366 at [32] (Mason P, with whom Handley and McColl JJA agreed). The principle is often referred to as the rule against double recovery.

2. There is a line of authority which suggests that once a respondent shows that a payment has been made to a claimant in circumstances capable of attracting the rule against double recovery, it is for the claimant to show that the payment was not received in compensation for the same loss:  Boncristiano v Lohmann [1998] 4 VR 82 at 89-90 (Winneke P, with whom Charles and Batt JJA agreed) citing Townsend v Stone Toms & Partners (1984) 27 BLR 26; and see also SAS Trustee Corporation v Budd at [49] (Mason P, with whom Handley and McColl JJA agreed).

3. Mr Vergara did not raise the possibility that the rule against double recovery may have application in this case.  Nor did Ms Ewin raise the issue.  Nevertheless, the demands of justice require that I be satisfied that any orders I make will not result in double recovery for Ms Ewin.

4. In Miletich v Murchie (2012) 297 ALR 566, during the course of the trial, the first and second respondents settled with the applicants. Following the trial, Gray J determined that the remaining respondents were liable to pay damages for misleading and deceptive conduct. Given the likelihood that an award of compensation would raise an issue of double recovery, counsel for the applicants offered to tender the relevant settlement documents but contended that the settlement was no bar to the entry of judgment against the remaining respondents for the whole amount of the loss and damage the applicants were found to have suffered. It was contended that the rule against double recovery operated only at the level of execution of a judgment, so that the applicants would be bound not to execute any judgment against the remaining respondents for more than the shortfall after taking into account whatever was recovered by means of the settlement with the first and second respondents.

5. Gray J (at [121]-[125]) referred to Boncristiano v Lohmann and Townsend v Stone Toms & Partners and by reference to the principles there discussed rejected the contention that partial satisfaction should only be taken into account at the time judgment is executed.  His Honour determined that the proper approach is that where concurrent claims have been made against two persons and there has been recovery of all or part of a loss from one, the recovery will diminish the damages to be awarded against the other person. Subject to considering any further submission from the parties as to that issue, I intend to take the same approach.  

6. Gray J at [126] considered that further evidence was required before the amount of the judgment and consequently, the interest payable on that amount, could be determined.  The appropriate course there adopted, and which I will here follow, is to order Ms Ewin to file affidavit material disclosing the terms of any settlement with LLA, Robert Walters or any other person and the amount, if any, Ms Ewin claims she is entitled to deduct from any lump sum settlement on account of costs.  The basis for any such deduction for costs will need to be verified by affidavit.  I note in that respect that where a settlement is inclusive of costs, the party against whom double recovery is pleaded is entitled to deduct the costs of pursuing an action against the party with whom settlement was reached before giving credit for the amount received under the settlement: see Miletich v Murchie at [124]-[125] (Gray J) and Nau v Kemp & Associates Pty Ltd (2010) 77 NSWLR 687 at [108] (McColl JJA) both citing Banque Keyser Ullman SA v Skandia (UK) Insurance Co Ltd (No 2) [1988] 2 All ER 880 at 882 (Steyn J).

   CONCLUSION

7. Subject to my determination of any issue which arises by reference to the rule against double recovery, I propose to order that judgment be entered against Mr Vergara for the amount of $476,163 together with interest.  As my reasons have explained, that amount is made up of the following components:

   ·loss of past earning capacity - $293,000;

   ·loss of future earning capacity - $63,000;

   ·general damages - $110,000;

   ·past expenses - $7,163; and

   ·future expenses - $3,000.

8. For reasons already explained, the appropriate course is to order that Ms Ewin file and serve an affidavit detailing the terms of any settlement reached with LLA, Robert Walters or any other person and if necessary, setting out and verifying the amount she claims to be entitled to deduct from any lump sum by way of costs.  I will also order that Ms Ewin file and serve minutes of proposed orders that reflect these reasons for judgment.  The proceeding will be listed for the further hearing of any submissions as to the terms of the appropriate orders which the Court should make including as to costs. 

I certify that the preceding six hundred and ninety-three (693) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Associate:

Dated:        5 December 2013