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,…
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- AGLC
- Ewin v Vergara (No 3) [2013] FCA 1311
- Case
- [2013] FCA 1311
- Decision Date
CaseChat Overview and Summary
In the matter of Ewin v Vergara (No 3), the respondent, Ms Ewin, sought compensation for sexual harassment and other related claims against the appellant, Mr Vergara. The case was heard by the Supreme Court of Victoria. The primary legal issue before the court was whether Mr Vergara, who was engaged as a contract accountant, was an employee of the company, LLA, for the purposes of the relevant anti-discrimination legislation. The court had to determine whether the contractual relationship between Mr Vergara and LLA constituted employment and, if so, whether Mr Vergara was liable for the alleged sexual harassment.
The court examined the nature of Mr Vergara's engagement, considering factors such as control over work, working hours, and the provision of tools and equipment. It found that while Mr Vergara was engaged under a contract for services, the relationship with LLA was akin to that of an employee. The court relied on the wide definition of "workplace" under the anti-discrimination legislation, which included areas such as corridors and common spaces where workplace participants gathered. The court concluded that Mr Vergara was indeed an employee of LLA for the purposes of the legislation, and thus, he was subject to the anti-discrimination laws.
In its reasoning, the court gave significant weight to the evidence presented by Ms Ewin and Mr Vergara, taking into account the inherently conflicting nature of their testimonies. The court adopted a cautious approach, especially given the sensitive nature of the allegations and the time elapsed since the events in question. Ultimately, the court found Ms Ewin's account more credible and reliable, particularly in light of the significant emotional and psychological impact of the alleged harassment.
The court ordered that judgment be entered against Mr Vergara for the total amount of $476,163, which included damages for loss of past and future earning capacity, general damages, and past and future expenses. The court also directed Ms Ewin to provide further affidavit material detailing any settlements reached with LLA, Robert Walters, or any other party, and to verify any deductions for costs. The case was to be listed for a further hearing to address the terms of the appropriate orders, including costs.
The court examined the nature of Mr Vergara's engagement, considering factors such as control over work, working hours, and the provision of tools and equipment. It found that while Mr Vergara was engaged under a contract for services, the relationship with LLA was akin to that of an employee. The court relied on the wide definition of "workplace" under the anti-discrimination legislation, which included areas such as corridors and common spaces where workplace participants gathered. The court concluded that Mr Vergara was indeed an employee of LLA for the purposes of the legislation, and thus, he was subject to the anti-discrimination laws.
In its reasoning, the court gave significant weight to the evidence presented by Ms Ewin and Mr Vergara, taking into account the inherently conflicting nature of their testimonies. The court adopted a cautious approach, especially given the sensitive nature of the allegations and the time elapsed since the events in question. Ultimately, the court found Ms Ewin's account more credible and reliable, particularly in light of the significant emotional and psychological impact of the alleged harassment.
The court ordered that judgment be entered against Mr Vergara for the total amount of $476,163, which included damages for loss of past and future earning capacity, general damages, and past and future expenses. The court also directed Ms Ewin to provide further affidavit material detailing any settlements reached with LLA, Robert Walters, or any other party, and to verify any deductions for costs. The case was to be listed for a further hearing to address the terms of the appropriate orders, including costs.
Orders
Orders of the court
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Background
Background to the litigation
I now turn to consider the facts and record my findings.BACKGROUND FACTS 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. 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. 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. 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. 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. Due to her significant responsibilities, Ms Ewin’s workload whilst at LLA was immense and she was regularly working 14-hour days. 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. 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.
Evidence
Evidence Before The Court
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 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. 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. 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. 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. 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.
Decision
Reasons for decision
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 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. 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.
Ratio Decidendi
Legal Principle Established
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