Vergara v Ewin [2014] FCA 123

FEDERAL COURT OF AUSTRALIA

Vergara v Ewin [2014] FCA 123 Citation: Vergara v Ewin [2014] FCA 123 Appeal from: Ewin v Vergara (No 3) [2013] FCA 1311 Parties: CLAUDIO VERGARA v JEMMA EWIN

File number: VID 45 of 2014

Judge: MARSHALL J

Date of judgment: 19 February 2014

Legislation: Sex Discrimination Act 1984 (Cth)

Cases cited: Ewin v Vergara (No 3) [2013] FCA 1311

Date of hearing: 19 February 2014

Place: Melbourne

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 6

Counsel for the Appellant: Mr N Green QC

Solicitor for the Appellant: Bartram Lawyers Pty Ltd

Counsel for the Respondent: Mr L Reidy

Solicitor for the Respondent: Susan Moriarty & Associates

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 45 of 2014

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: CLAUDIO VERGARA

Appellant

AND: JEMMA EWIN

Respondent

JUDGE: MARSHALL J DATE OF ORDER: 19 FEBRUARY 2014 WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

STAY APPLICATION: 1. Pending the hearing and determination of the appeal or until further order, paragraphs 5 and 6 of the orders made by the trial judge on 19 December 2013 are stayed, subject to the following conditions: (a) $105,300 is to be paid within 14 days by the appellant to the solicitors for the respondent, Susan Moriarty & Associates, to be held in trust by that firm to be invested with the Commonwealth Bank of Australia at the best rate of interest for an at call investment; (b) After hearing and determination of the appeal, the Court will make orders for the appropriate payment to either party of any sum from the funds referred to above. 2. The costs of the stay application be costs in the appeal. ORDERS BY CONSENT: 1. The hearing of the appeal be expedited. 2. The appeal be referred to a Deputy District Registrar to arrange for an urgent confidential case conference. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 45 of 2014

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: CLAUDIO VERGARA

Appellant

AND: JEMMA EWIN

Respondent

JUDGE: MARSHALL J DATE: 19 FEBRUARY 2014 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The Court is in a position to give ex tempore reasons and to make orders. On 5 December 2013, Bromberg J published his reasons for judgment in a proceeding brought by the current respondent, Ms Ewin, against the current appellant, Mr Vergara, under the Sex Discrimination Act 1984 (Cth); see Ewin v Vergara (No 3) [2013] FCA 1311. By order dated 19 December 2013, his Honour ordered that Mr Vergara pay Ms Ewin a sum of $210,563 by way of compensation and interest. The trial judge also made a costs order in favour of Ms Ewin. Mr Vergara now seeks an order staying the payment of each of the judgment debt and the costs pending the hearing of the appeal. 2 The principles governing the exercise of the Court's discretion are not controversial. The Court proceeds on the basis that the judgment appealed from is correct and that ordinarily the successful party is entitled to the fruits of his or her victory. An appellant must demonstrate an appropriate case to warrant the exercise of the discretion to grant a stay. In other words, there is a need to show some good reason why a stay should be granted, but special or extraordinary circumstances are not required to be present. However, the appeal must contain at least one arguable ground to justify a stay. 3 If there is an arguable case on the appeal, then the Court must consider the position of both parties and seek to do justice as best it can on the stay application. This is often referred to as ascertaining where the balance of convenience lies. A successful party below will nearly always hold a concern that the fruits of victory at first instance may be dissipated by the now appellant. On the other hand, the reverse is also true: an appellant who ultimately succeeds on appeal may face the prospect of funds paid in the interim to the other party in the dispute being dissipated. The Court may impose terms upon the granting of a stay, such as the payment of the judgment debt, or a part of it, into a trust account. 4 Both parties are entitled to be concerned about the financial circumstances of the other. Ms Ewin may rightly be concerned that Mr Vergara may dissipate his assets. Mr Vergara may be rightly concerned that any payment made to Ms Ewin pending appeal would be dissipated. Ms Ewin's solicitors have proposed the payment of a $210,563 judgment debt into a trust account pending an appeal. Such a proposal would ordinarily be a sensible solution, but Mr Vergara says that he is not able to fund the $210,563. He says he has sufficient equity in his family home to secure a second mortgage, but insufficient capacity to support such a mortgage. He also says that if he was to seek a second mortgage, and to pay it, he would be at risk of having to sell his family home, with all the disruptions that would entail to innocent parties, namely, his children and his spouse. On the other hand, I am also mindful that a failure to pay the fruits of the victory to the successful party below may disadvantage another innocent person, namely, Ms Ewin's spouse. Mr Vergara and his wife have $700,000 equity in the family home, but owe about $370,000. Mr Vergara claims that he has no ability to borrow any more based on the equity in that home, but significantly, has given no evidence of any attempts to contact financial institutions to see if that is possible. 5 Notwithstanding, Mr Vergara indicated to Bromberg J in the proceeding below on 16 December 2013 that he would need to talk to financiers, although I concede that that was in a slightly different context. Nonetheless, one would have expected that there would be some evidence about any difficulty in obtaining finance for all or part of the order the subject of appeal. An imperfect solution, but one that would do the least harm to both parties, where their interests and the interests associated with them are all jointly considered, is to make an order staying the payment of the judgment debt and costs, but ordering the payment of a sum of $105,300, approximately half of the payment, to be paid into a trust account held by Ms Ewin's solicitors in accordance with a proposal contained in an affidavit of her solicitor and subject to the undertaking there set out. 6 I also had intended to strongly recommend to the parties that they approach the national appeals registrar to ascertain whether an expedited hearing of the appeal was possible, and that they also consider the possibility of a confidential case conference before a registrar to narrow the issues in dispute. Ultimately, the parties each accepted that it was appropriate to do so, and I will make separate orders by consent giving effect to that course. I commend the parties for agreeing to that course. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate: Dated: 19 February 2014