FEDERAL COURT OF AUSTRALIA

Ewin v Vergara (No 4) [2013] FCA 1409

THE COURT DECLARES THAT:

1.    On 13 May 2009, by making the statements recorded at sub-paragraphs (ii), (iii) and (iv) of paragraph 222 of the Court’s reasons for judgment of 5 December 2013 (“the Reasons”), the respondent made unwelcome sexual advances, unwelcome requests for sexual favours and engaged in other unwelcome conduct of a sexual nature and thereby sexually harassed the applicant, in contravention of s 28B(6) of the Sex Discrimination Act 1984 (Cth) (“the Act”).

2.    On 14 May 2009, by making the statements recorded at paragraph 250 of the Reasons, the respondent made unwelcome sexual advances, unwelcome requests for sexual favours and engaged in other unwelcome conduct of a sexual nature and thereby sexually harassed the applicant, in contravention of s 28B(6) of the Act.

3.    On 15 May 2009, by making the statement recorded at paragraph 268 of the Reasons, the respondent made an unwelcome request for sexual favours and thereby sexually harassed the applicant, in contravention of s 28B(6) of the Act.

4.    On 15 May 2009, by engaging in the physical conduct recorded at paragraph 445 of the Reasons, the respondent engaged in unwelcome conduct of a sexual nature and thereby sexually harassed the applicant, in contravention of s 28B(6) of the Act.

AND THE COURT ORDERS THAT:

5.    On or before 31 January 2014, the respondent pay to the applicant the sum of $210,563 by way of compensation and interest.

6.    The respondent pay the applicant’s costs of and incidental to the proceeding including reserved costs, other than the travel and related costs incurred by the applicant’s legal representatives which are attributable to those persons being based outside of Melbourne, to be taxed if not agreed.

7.    A copy of the Confidential Schedule to the Court’s reasons for judgment of 19 December 2013 be provided to the applicant and the respondent on the basis that it not be disclosed to anyone other than any legal practitioner engaged to represent the party in this proceeding or in any appeal. The Schedule shall be placed on the Court file in a sealed envelope marked “Confidential” and shall not be available for inspection except by order of the Court.

8.    The document headed “Interest Calculation per Respondent” filed by the respondent on 17 December 2013 be placed in a sealed envelope on the Court’s file marked “Confidential” and shall not be available for inspection except by order of the Court.

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

REASONS FOR JUDGMENT

1    These reasons for judgment supplement my reasons published on 5 December 2013 in Ewin v Vergara (No 3) [2013] FCA 1311.

2    As my earlier reasons state at [692], subject to the need to avoid any double recovery of Ms Ewin’s loss and damage, I proposed to order that judgment be entered against Mr Vergara in the amount of $476,163 together with interest. At the time of the publication of my earlier reasons, I made orders for the filing of further material and for the proceeding to be relisted for a further hearing so that any potential for double recovery could be addressed together with the question of costs and the terms of the orders which the Court should make.

3    Those outstanding issues have been addressed and the manner in which they have been resolved is dealt with in these reasons.

Declaration

4    The making of a declaration and the terms in which it is framed are in the Court’s discretion but any declaration made by the Court should reflect the final outcome of the case with certainty and precision: Stuart v Construction, Forestry, Mining and Energy Union (2010) 185 FCR 308 at [89] (Besanko and Gordon JJ, with whom Moore J agreed at [35]). In Stuart, Besanko and Gordon JJ at [91] and [94] followed observations made by Goldberg and Jessup JJ in Cruse v Multiplex Ltd (2008) 172 FCR 279 at [59], that there may be utility in using a declaration to define and publicise the type of conduct that constitutes the contravention the subject of the Court’s declaration.

5    This is a case where there is utility in defining and publicising the elements of the conduct that constituted the contraventions of s 28B(6) of the Sex Discrimination Act 1984 (Cth). That utility includes providing a sufficient public record of the way in which the applicant’s application was resolved: Cruse at [59]. There is also utility in assisting to redress the harm done by the contravening conduct: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582 (Mason CJ, Dawson, Toohey and Gaudron JJ).

6    A declaration which defines the elements of the contravening conduct by reference to the principal findings of the Court, provides an appropriate form for a declaration of contravention. That is the approach I have adopted in determining the form of the declaration which the Court will make.

Compensation and interest

7    In accordance with the orders previously made, Ms Ewin filed material dealing with the extent to which there has been any prior satisfaction of her loss or damage arising from or consequential upon the conduct of Mr Vergara that was the subject of this proceeding. In order to maintain the confidentiality of the material filed, I have appended to these reasons a Confidential Schedule. The confidentiality of that Schedule will be maintained by orders I will make which will restrict access to it.

8    The Confidential Schedule, when read with my earlier reasons, explains the basis upon which I have determined to award Ms Ewin $210,563 for compensation and interest.

9    There was some dispute as to the amount of time that should be given to Mr Vergara to pay the judgment debt. In view of the forthcoming holiday period and Mr Vergara’s asserted need to raise funds to meet the judgment debt, it is reasonable that he be given until 31 January 2014 to make the payment. The interest to be paid by Mr Vergara takes that period into account.

10    I will order that on or before 31 January 2014, Mr Vergara pay to Ms Ewin the sum of $210,563 by way of compensation and interest.

Costs

11    The Court’s jurisdiction to award costs is discretionary but the discretion must be exercised judicially. The usual rule is that a successful litigant is entitled to have his or her legal costs paid by the losing party. Mr Vergara did not contest that the usual rule should apply other than in respect of two matters.

12    The first concerns whether the travel and related expenses (including accommodation) incurred by Ms Ewin, as a result of her solicitor and her counsel travelling to Melbourne, should be excluded from the order that Mr Vergara pay Ms Ewin’s costs. That issue is to be resolved by reference to the terms of rule 40.06 of the Federal Court Rules 2011, which provide that costs that have been “improperly, unreasonably or negligently” incurred may be disallowed.

13     Susan Moriarty & Associates has acted as Ms Ewin’s solicitor throughout the course of the proceeding. Mr Reidy acted as Ms Ewin’s counsel. Susan Moriarty & Associates and Mr Reidy are both based in Queensland.

14    Ms Moriarty is a solicitor at Susan Moriarty & Associates. Ms Ewin’s mother, also based in Queensland, came into contact with Ms Moriarty in about July 2010. In early August 2010, Ms Ewin engaged Susan Moriarty & Associates to act on her behalf. Ms Ewin’s decision to engage Susan Moriarty & Associates appears to have been made on the recommendation of her mother.

15    At the time of that engagement, Ms Ewin had experienced some difficulty in identifying a solicitor in Melbourne prepared to provide her with legal assistance. The extent to which any real difficulty was experienced and the reason or reasons for any such difficulty was not adequately explained in the material upon which Ms Ewin relied. That material fell well short of establishing that there was no suitably qualified and experienced solicitor in Melbourne who could have been engaged by Ms Ewin to act for her in the proceeding. The unavailability of suitable legal representation in Victoria may have justified Ms Ewin engaging interstate legal representatives: Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629 at [38]-[40] (Mansfield J).

16    The proceeding concerned events which occurred in Melbourne and in relation to which Melbourne based witnesses were called. It was always inevitable that the proceeding would be heard in Melbourne. That fact must have been obvious to Ms Ewin at the time that she engaged Susan Moriarty & Associates to act for her. The additional costs involved in engaging Queensland based legal representatives (instead of Melbourne based legal representatives) for a Melbourne based proceeding should also have been appreciated by Ms Ewin.

17    Ms Ewin contended that there were exceptional circumstances which justified her decision to engage Queensland based legal representatives. She contended that she is a vulnerable person who, as a result of the sexual harassment by Mr Vergara, has had difficulty in establishing trusting relationships with others.

18    Accepting that to be the case, the difficulty with Ms Ewin’s submission on this issue is that I have no basis for concluding that a trusting relationship with a suitably qualified and experienced Melbourne solicitor could not have been established in the same way as a trusting relationship was established between Ms Ewin and Ms Moriarty. That Ms Ewin’s mother recommended Ms Moriarty is not a basis upon which I could conclude that circumstances existed sufficient to place Ms Moriarty in some special position relative to that of other practitioners, including suitably qualified Melbourne based practitioners. Ms Ewin has not established that a suitable Melbourne based solicitor capable of meeting Ms Ewin’s needs was not available for her to engage as her solicitor.

19    Whilst it may well have been sensible for Mr Reidy to be engaged given his geographical proximity to the office of Susan Moriarty & Associates and whilst it may well have been sensible for Ms Moriarty to take over the principal running of the case from the Melbourne based agents initially engaged, the justification for those and other decisions cannot be appraised in a vacuum. They all depend upon whether it was reasonable for Ms Ewin to have engaged Susan Moriarty & Associates in the first place. Ms Ewin has not established that it was and as a result has failed to establish that the resulting additional travel and related costs were not unreasonably incurred. Whilst Ms Ewin was free to select legal representation of her choosing, the additional costs incurred as a result of her decision to engage interstate lawyers, should be borne by her and not by Mr Vergara.

20    The second basis upon which Mr Vergara contested the making of the usual order as to costs, was that Ms Ewin failed to establish her claim that she was sexually harassed on 12 May 2009. Whilst that was so, it does not justify an apportionment of costs. The claim was a minor part of Ms Ewin’s case. The evidence led in support of it was relevant to other claims upon which Ms Ewin succeeded and submissions on that claim took up no additional hearing time of any significance.

21    It follows that I should make an order that Mr Vergara pay Ms Ewin’s costs of and incidental to the proceeding including reserved costs, other than travel and related costs incurred by Ms Ewin’s legal representatives attributable to those persons being based outside of Melbourne.

Other orders

22    I will also make orders which address the need to maintain the confidentiality of confidential information received by the Court.

Associate:

Dated:    19 December 2013