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

FEDERAL COURT OF AUSTRALIA

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

Parties: JEMMA EWIN v CLAUDIO VERGARA

File number: VID 494 of 2011

Judge: BROMBERG J

Date of judgment: 19 December 2013

Catchwords: DAMAGES – double recovery. COSTS – whether travel and related costs for interstate practitioners should be disallowed – whether costs should be apportioned.

Legislation: Federal Court Rules 2011 (Cth) r 40.06 Sex Discrimination Act 1984 (Cth) s 28B(6)

Cases cited: Ewin v Vergara (No 3) [2013] FCA 1311 Stuart v Construction, Forestry, Mining and Energy Union (2010) 185 FCR 308 Cruse v Multiplex Ltd (2008) 172 FCR 279 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629

Date of hearing: 16 December 2013

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 22

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: 19 DECEMBER 2013 WHERE MADE: MELBOURNE

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.