FEDERAL COURT OF AUSTRALIA
Vergara v Ewin [2014] FCAFC 100
Citation: Vergara v Ewin [2014] FCAFC 100 Appeal from: Ewin v Vergara (No 3) [2013] FCA 1311 Parties: CLAUDIO VERGARA v JEMMA EWIN File number: VID 45 of 2014 Judges: NORTH, PAGONE AND WHITE JJ Date of judgment: 12 August 2014 Corrigendum: 14 November 2014 Catchwords: HUMAN RIGHTS – discrimination – sexual harassment – appeal against finding of sexual harassment by unwanted sexual intercourse – appellant challenged finding that sexual intercourse occurred – whether Judge failed to apply appropriately the standard of proof and to take account of the gravity of the finding – whether finding open on the facts found at trial
HUMAN RIGHTS – appellant challenged finding of sexual harassment occurring at a hotel and on a public street – consideration of the meaning of “workplace” in s 28B(6) of the Sex Discrimination Act 1984 (Cth)
DAMAGES – appeal against assessment of damages – whether Judge inappropriately had regard to punitive considerations in awarding damages
Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO
Evidence Act 1995 (Cth) s 140
Sex and Age Discrimination Legislation Amendment Act 2011 (Cth) sch 1, items 54, 55, 69
Sex Discrimination Act 1984 (Cth) ss 28A, 28BCases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
Ashby v Slipper [2014] FCAFC 15
Backwell v AAA [1997] 1 VR 182
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 293 ALR 257
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466
Flieger v New Brunswick [1993] 2 SCR 651
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Jones v Dunkel (1959) 101 CLR 298
Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363
Morley v Australian Securities and Investments Commission [2010] NSWCA 331
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
R v McGuire [2013] QCA 290
R v Prasad [2009] SASC 131
Rookes v Barnard [1964] AC 1129
Sanders v Snell (1997) 73 FCR 569
Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29
Trustees of the Property of Cummins (a bankrupt) v Cummins [2006] HCA 6; (2006) 227 CLR 278
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Warren v Coombes (1979) 142 CLR 531Date of hearing: 16 April 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 129 Counsel for the Appellant: Mr N Green QC with Ms D Siemensma Solicitor for the Appellant: Bartram Lawyers Counsel for the Respondent: Mr D Neal SC with Mr S Reidy Solicitor for…
Continue reading Vergara v Ewin
Sign in free to access the full text
Details
- AGLC
- Vergara v Ewin [2014] FCAFC 100
- Case
- [2014] FCAFC 100
- Decision Date
CaseChat Overview and Summary
The appeal in Vergara v Ewin concerns the determination of the Federal Court of Australia regarding allegations of sexual harassment by unwanted sexual intercourse and the assessment of damages. The appellant, Vergara, contested the findings of sexual harassment, which included unwanted sexual intercourse and inappropriate touching, arguing that the standard of proof was incorrectly applied and that the gravity of the findings was not adequately considered. Additionally, Vergara challenged the interpretation of "workplace" under section 28B(6) of the Sex Discrimination Act 1984 (Cth), as well as the consideration of punitive factors in the damages awarded.
The court examined whether the Judge correctly applied the standard of proof in concluding that sexual intercourse had indeed occurred, despite the respondent's lack of memory due to intoxication. The court found that the Judge's conclusion was supported by compelling circumstantial evidence, including admissions made by Vergara himself. The court also considered the definition of "workplace" in the context of the alleged incidents occurring at a hotel and on a public street, concluding that these locations could reasonably be considered part of the workplace. Furthermore, the court reviewed whether the Judge had appropriately taken punitive considerations into account when assessing damages, concluding that the Judge's decision was within the appropriate bounds of judicial discretion.
The appeal was dismissed by the court, which found that the Judge had correctly applied the standard of proof and had appropriately considered the gravity of the findings. The court also upheld the Judge's interpretation of the term "workplace" and the assessment of damages. Consequently, the final orders mandated that the appeal be dismissed and that Vergara pay the respondent's costs associated with the appeal.
The court examined whether the Judge correctly applied the standard of proof in concluding that sexual intercourse had indeed occurred, despite the respondent's lack of memory due to intoxication. The court found that the Judge's conclusion was supported by compelling circumstantial evidence, including admissions made by Vergara himself. The court also considered the definition of "workplace" in the context of the alleged incidents occurring at a hotel and on a public street, concluding that these locations could reasonably be considered part of the workplace. Furthermore, the court reviewed whether the Judge had appropriately taken punitive considerations into account when assessing damages, concluding that the Judge's decision was within the appropriate bounds of judicial discretion.
The appeal was dismissed by the court, which found that the Judge had correctly applied the standard of proof and had appropriately considered the gravity of the findings. The court also upheld the Judge's interpretation of the term "workplace" and the assessment of damages. Consequently, the final orders mandated that the appeal be dismissed and that Vergara pay the respondent's costs associated with the appeal.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
This ground of appeal fails.Conclusion on the circumstantial case In my opinion, the principal uncontested findings which I summarised earlier, together with the appellant’s admissions to the police which I have outlined in the previous section of these reasons, constituted a compelling case that the appellant had sexual intercourse with the respondent on the night of 15 May 2009 and had engaged in the touching of her breasts and genitalia. The appellant was sexually interested in the respondent and had made his desires known to her. On the night of 15 May 2009, he had both the opportunity and the time to achieve his desire. On the unchallenged findings of fact, the Judge’s conclusion that sexual intercourse had occurred was inevitable. It is improbable that sexual intercourse occurred, but not the touching of the respondent’s breasts and genitalia. Counsel submitted that the appellant’s admission that he had kissed, cuddled and caressed the respondent was not necessarily an admission that he had touched her breasts and genitalia. One may accept that that is so as a matter of theory but, in the circumstances of this case, it is not a realistic possibility. I also note that the appellant did not assert in his evidence that he had used the words “kissing, cuddling and caressing” when speaking to the police with some confined meaning, so as not to include the touching alleged. The particular circumstances to which the appellant drew attention on the appeal do not, in my opinion, displace the compelling effect of the evidence summarised above. The circumstance that the respondent was intoxicated and disoriented and had no memory of events meant only that she could not give direct evidence of the intercourse and sexual touching. It does not detract from the quality of the circumstantial case, which includes the significant admissions made by the appellant himself. I observe that it is not uncommon for juries to find proved to the criminal standard a charge of rape or unlawful sexual intercourse with an unconscious victim on evidence which is entirely circumstantial, and for such convictions to be upheld on appeal: see, for example, R v McGuire [2013] QCA 290 and R v Prasad [2009] SASC 131. Contrary to the appellant’s submission, the circumstance that the respondent had no recollection of the events did not “compel” a conclusion that her claim must fail. The circumstance that the police had not laid a charge of rape or of any other sexual offence is immaterial. It was for the Judge to assess the evidence, without regard to the assessments of others about that evidence. Further, the elements of the offence of rape are different from those of sexual harassment under the SD Act; the reasons for the police prosecution decision are not known; and the police may not, in any event, have had access to all the evidence adduced before the Judge. As already noted, the Judge was alert to the seriousness of the finding which he made in favour of the respondent. His reasons indicate that he reached his decision having regard to the necessity for cogent evidence. It is evident that the Judge scrutinised the respondent’s evidence with care before accepting it and, even when accepting it, exercised care before relying on it as part of the circumstantial case against the appellant. There were some aspects of the respondent’s evidence which the Judge did not accept. As noted earlier, the Judge said that he accepted the respondent’s own evidence only when he regarded it to be cogent and not significantly inconsistent with her previous statements. The care which the Judge exercised in this respect is evident in his observations about the respondent’s evidence at [59]-[68], [145], [161], [454], [510], [518]-[519], [565]-[566], [584]-[585] and [590].
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.