The trial finding by Bloomberg J included substantiation of the allegation of a contravention of s 28B(6) of the Sex Discrimination Act 1984 (Cth) of unwelcomed sexual intercourse, including: kissing; touching and stroking of the respondent’s body, her breasts and genitalia, which in all the circumstances, a reasonable person “would have anticipated” would have offended, humiliated or intimidated. The controversy was whether the respondent was a willing participant, which was resolved in her favour that she was not.
The appellant appealed in part that the trial judge overlooked the evidentiary basis required to form this finding. In rejecting this ground on appeal White J with whom North and Pagone JJ agreed (on this issue), recited the authorities:
- In the well-known passage in Briginshaw at 361-2 (which involved the question of whether adultery had been proved), Dixon J held:
[W]hen the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for vicarious purposes. … Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. (Emphasis added)
As can be seen, Dixon J emphasised that the nature and consequence of the fact to be proved is pertinent to the degree of satisfaction required of the fact finder before concluding that the fact has been proved. Dixon J continued at 362-3:
This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues … But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. (Emphasis added)
Similarly, at 347, Latham CJ said:
[T]he ordinary standard of proof in civil matters must be applied to the proof of adultery in divorce proceedings, subject only to the rule of prudence that any tribunal should act with much care and caution before finding that a serious allegation such as that of adultery is established.
The reasons of Rich J at 350 contain a statement to like effect:
In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.
- Reference may also be made to Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd  HCA 66; (1992) 67 ALJR 170 at 171 in which Mason CJ, Brennan, Deane and Gaudron JJ said:
[T]he 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. (Citations omitted)
- The effect of the approach stated in Briginshaw and the later authorities is that the graver the allegations and their potential consequences, the stronger is the evidence required to conclude that the allegations have been established: Ashby v Slipper  FCAFC 15 at .
- Section 140 of the Evidence Actprovides:
140 Civil proceedings: standard of proof (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 subjectmatter of the proceeding; and (c) the gravity of the matters alleged.
It has been held that s 140(2) reflects the common law as stated in Briginshaw and as applied in the later authorities: Morley v ASIC  NSWCA 331 at ; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission  FCAFC 132 at ;  FCAFC 132; (2007) 162 FCR 466 at 480; Ashby v Slipper  FCAFC 15 at .
Otherwise, North and Pagone JJ upheld the reasoning (below) of Bloomberg J in not awarding aggravated and exemplary damages.
Ewin v Vergara (No 3)  FCA 1311
Aggravated and exemplary damages
- In Clarke v Nationwide News Pty Ltd  FCA 307; (2012) 201 FCR 389 at , 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  HCA 40; (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 , per Gleeson CJ, McHugh, Gummow and Hayne JJ.
- 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  FCA 418; (2001) 111 FCR 240 at 297 (Moore J).
- 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.
- 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  (Barker J). As Barker J noted in Clarke at  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.
- 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.
- 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  (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.
- 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  that the damages available under s 46PO(4)(d) are “entirely compensatory”. However as Barker J noted in Clarke at  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 .
- 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.
- 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.
- 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.
David Cormack – Brisbane Barrister & Mediator