State of New South Wales v Ibbett [2006] HCATrans 463 (31 August 2006)

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State of New South Wales v Ibbett [2006] HCATrans 463 (31 August 2006)

Last Updated: 31 August 2006

[2006] HCATrans 463

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S227 of 2006

B e t w e e n -

STATE OF NEW SOUTH WALES

Appellant

and

DOROTHY ISABEL IBBETT

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 31 AUGUST 2006, AT 10.06 AM

Copyright in the High Court of Australia

MR J.E. MACONACHIE, QC: I appear with MR E. CHRYSOSTOMOU for the appellant. (instructed by Crown Solicitor for New South Wales)

MR J.J.J. GARNSEY, QC: May it please the Court, I appear with my learned friend, MR B.E. KINSELLA for the respondent. (instructed by James Fuggle)

GLEESON CJ: Yes. Mr Maconachie.

MR MACONACHIE: There are three short points, your Honours. The first is what we have styled the guest interest point, is that sufficient to support an award of exemplary damages, the point that Justice Kirby on the special leave application suggested required the Englishman to be concerned only with his castle but not with the people within it. We will come to that, I have no doubt.

KIRBY J: That is the point on which Justice Ipp disagreed with the majority in the Court of Appeal.

MR MACONACHIE: Yes, your Honour. The second, and we submit an equally short point - - -

GUMMOW J: Have we any submissions in reply from you?

MR MACONACHIE: No, your Honour. I wanted to deal with those orally.

KIRBY J: You agreed with everything Mr Garnsey said, I suppose.

MR MACONACHIE: No, your Honour, the issue joined between us is plain from the two sets of submissions that you have, that we did not want to burden you with paper, but would do no more than really restate what the two sets of submissions said; at least that is how I saw it.

The second can be stated this way. By awarding general damages, aggravated damages and exemplary damages for trespass to land, did the Court of Appeal fail to have sufficient regard to the fact that for a police officer – and that is the proper focus, and I will come to that in a moment – to suffer punishment twice for in effect the same wrong because the general or vindicatory damages for trespass to land and the elements of aggravation which supported the aggravated damages for trespass to land of - - -

KIRBY J: Is that that they failed to pay regard or sufficient regard to the sanctioning effect of the general damages? Is that the point?

MR MACONACHIE: And aggravated damages, which amounted to $30,000, and given – and this is the third point – the proper and only focus is what was sufficient to punish the police officer - not the State, but the police officer. Was it one of those rare cases where, approaching questions of exemplary damages with moderation and circumspection, which the authorities say is the proper approach, there was imposed double damages, as it were?

The third point is that the exemplary damages awards impose a liability on the State that is greater than it ought to have been because the focus seems to have been on what the State did or did not do in re-education of these police officers. There was never a case made by the plaintiff that more could have been and should have been done to – the word used in the judgments is “re-educate” Pickavance and Harman. That, we say, is an error because it fails to have regard to the fact that vicarious liability, both in the general law and because of the Vicarious Liability Act 1983, adopts the masters tort theory that Mr Justice Fullagar advanced in Darling Island v Long and not the vicarious liability for the acts of the employee that Mr Justice Kitto advanced in the Darling Island Case. That is because, so far as the Act is concerned, it imposes vicarious liability for the torts of the servant, not for the acts of the servant.

GLEESON CJ: Mr Maconachie, because of the way you put a couple of those submissions, I need to be clearer than I am at the moment about the role in this litigation of these two police officers.

MR MACONACHIE: Can I tell you that, your Honour?

GLEESON CJ: Yes.

MR MACONACHIE: The events that give rise to the litigation are set forth in Part III of our written submission, I am sorry, and are relatively straightforward.

GLEESON CJ: Yes, I did not have in mind the role of the police officers in the events.

MR MACONACHIE: I beg your pardon.

GLEESON CJ: I have in mind the role of the police officers as litigants, because you keep talking about awards of damages punishing the police officers.

MR MACONACHIE: Yes.

GLEESON CJ: What damages were awarded against the police officers?

MR MACONACHIE: No damages were awarded against the police officers for the following reasons. When the proceedings commenced, and my learned friend to my right - - -

GUMMOW J: It appears at page 418, does it not, volume 3, Justice Basten’s judgment, paragraph 186.

MR MACONACHIE: Yes, your Honour, it does.

GLEESON CJ: How do questions of punishing the police officers come into it?

MR MACONACHIE: Because the scheme of the 1983 Act is to say you cannot sue the police officers, you must sue the State unless the State denies that it is vicariously liable for the torts of the police officers. We say that that requires that the action be brought against the State unless it denies vicarious liability, but its vicarious liability is not for the acts of the police officers but for the torts, that is, for the liability that would otherwise have been imposed upon the police officers.

GLEESON CJ: But the police officers are not being punished in any way by these proceedings, are they?

MR MACONACHIE: No, but - - -

GLEESON CJ: Police officers have no financial interest in the outcome of these proceedings.

MR MACONACHIE: They do not, except to this extent, your Honour. The scheme of the Act, particularly section 9F of the Act says that the police officers can be pursued by the State. The short point is that the procedure involved - - -

GUMMOW J: Which section is this?

MR MACONACHIE: It is 9F, your Honour. Attached to it – I got a call at 9.30, your Honour, from the library saying that we had – and I apologise for this – given the wrong reprint number – but attached to our written submission is a verbatim reproduction of the relevant statute. Part 4 of the Act was introduced – I cannot quite remember when - about 2000 and it provides a mechanism whereby legal proceedings for damages for torts by police officers can be brought against the State and only against the State, see section 9B, “A police tort claim”.

GUMMOW J: Police Legislation Amendment (Civil Liability) Act 2003, is it not?

MR MACONACHIE: Yes, your Honour.

GUMMOW J: Which commenced on 1 January 2004.

MR MACONACHIE: Yes, and when that Act came into force the two police officers, I think I am right in saying, Mr Kinsella and Mr Chrysostomou will correct me if I am wrong, the police officers who had been sued were discontinued against and the State was named as the defendant.

KIRBY J: Discontinued against?

MR MACONACHIE: The police officers.

KIRBY J: The police officers, yes.

MR MACONACHIE: So that in form, as required by the Act, the action was brought against the State of New South Wales, but your Honours will notice - - -

KIRBY J: Is that for the purpose of recovering from the State whatever was the liability of the police officers, including for exemplary damages?

MR MACONACHIE: Exactly. Therefore, the focus has to be on the wrongdoer, the police officer, and not the funder, the State.

GLEESON CJ: It is a rather artificial focus if you are going to talk in terms of punishing the police officer. The police officer suffers no form of punishment of any kind in relation to the outcome of these proceedings, do they?

MR MACONACHIE: No, your Honour, but - - -

KIRBY J: It would not be a good career move, one would think.

GLEESON CJ: One may not know.

MR MACONACHIE: Indeed, but the - - -

GLEESON CJ: One’s thoughts may be uninformed.

MR MACONACHIE: Yes.

KIRBY J: I think in the camaraderie and disciplined nature of police service getting a big verdict against your “employer” would not be a good step. I mean, I do not think we leave our commonsense out of the courtroom. That is the inference I would draw.

MR MACONACHIE: No. But in any event, what the Act says, as Justice Basten, in our respectful submission rightly points out, and I will take you to it ultimately, is that the action is against the State but it is against the State in respect of or for the liability that would otherwise have been imposed upon the police officer or the police officers.

GLEESON CJ: Yes.

MR MACONACHIE: You do not focus on the means of the State to pay when determining what is the quantum.

GLEESON CJ: But do you pretend that the police officers are being punished?

MR MACONACHIE: It is not a pretence. It is a question - - -

GLEESON CJ: Well, they have not been punished. It is not costing them a dollar.

MR MACONACHIE: Unless – and it is irrelevant for present purposes other than to address the point that your Honour is making to me - - -

GLEESON CJ: This may not affect the ultimate outcome of the case, Mr Maconachie, but I was just puzzled by your references to punishing police officers in circumstances where I infer that the police officers do not have a red cent at stake in the litigation.

MR MACONACHIE: Unless, pursuant to section 9E, the Crown brings proceedings against or claims damages or contribution or indemnity in any legal proceedings from a police officer for a tort committed by the officer. The State can, if it wishes to and if it is game, from an industrial relations point of view, bring proceedings against the police officer to recover that which the State has been made liable for because of wrongdoing by the police officer. So, accordingly, the focus in terms of exemplary damages has to be on what the police officers did or did not do, and by that mechanism you determine the liability, notional if you like, of the police officers.

It is that liability for which the State is vicariously liable, both under the general law and by reason of this mechanism which has been put in place responsibly by the State to make it easier for those who claim to have been mistreated by police officers to have their legal remedy. But the focus must be on what the police officers did and what that would bring by way of a liability in the police officers and for that sum and no more the State is vicariously liable.

In this case, we say the Court of Appeal and, indeed, the trial judge did not have that focus on the problem and, secondly, when Constable Pickavance and Constable Harman gave evidence, in varying degrees they tended to deprecate the level of re-education – discipline, if you like – and Mrs Ibbett said that she was offended by that evidence. Two judges of the Court of Appeal took that into account in determining the level of exemplary damages, but that is to impose upon the State a liability for people - that is, supervisors and trainers and the hierarchy, if you like - that was never an issue at the trial and was irrelevant for them to consider.

KIRBY J: Is that a fourth issue?

MR MACONACHIE: No, it is the third issue, your Honour, but there are two elements to it.

KIRBY J: The point being raised by the Chief Justice is a fair point, is it not, though?

MR MACONACHIE: It is.

KIRBY J: Because you get exemplary damages first of all to mark disapproval and so on. Well, now, that can be done against the State. But the other is to bring home to the miscreant the disapproval of the law.

MR MACONACHIE: Yes.

KIRBY J: Now, if you do not bring it home to the miscreant, did you ever run an argument that because of the statutory provision of a fund from the ample pockets of the State that therefore exemplary damages as a notion does not arise in such circumstances.

Do you remember that in Cotogno v Lamb in the Court of Appeal I said, because compulsory third party insurance is paying the bill, exemplary damages does not fit within that regime and this Court reversed what I said there, or did not approve of it when it came here. Now, there are hints that you are arguing that sort of notion in your written submissions, but you do not seem to have embraced it in the three issues you are raising in this Court.

MR MACONACHIE: I am not saying that you cannot award exemplary damages because of this procedural structure imposed by Part 4. What I am saying is the focus in determining the liability and the quantum of the liability for exemplary damages has to be on the miscreants, the wrongdoers, and that involves looking at their position in terms of means and the like and determining what would be an appropriate order against them, not what would be an appropriate order against the State.

Let me jump forward to Adams v Kennedy, a case in the Supreme Court of New South Wales in which Mr Justice Priestley and Mr Justice Sheller, and I have forgotten the third member of the court - - -

GUMMOW J: What is the citation of that?

MR MACONACHIE: It is in the written submissions and I will come to it more fully in a moment.

HEYDON J: [2000] NSWCA 152; (2000) 49 NSWLR 78.

MR MACONACHIE: Thank you, your Honour. That was a worse case than this, but it was police officers who, very shortly, became involved in a situation as follows. A police officer attended at the house of Mr Adams, there were words. He returned to the police station and came back with a number of his friends. A melee broke out, Mr Adams had his shoulder damages when he was handcuffed, his de facto wife was treated appallingly, handcuffed and clothing put into disarray.

In that circumstance the Court of Appeal said $100,000 exemplary damages for Mr Adams and $120,000 for Ms Lee. That could never have been otherwise than by focusing on the means of the State and expressly the judges, particularly Justice Priestley in the Adams v Kennedy Case, said that it has to be brought home to the State that this sort of thing has to be stopped. We say that that is just illegitimate, both at common law and pursuant to the statute.

GLEESON CJ: You may be right or you may be wrong about that, we will have to look at that, but the apparent absence of any financial interest on the part of the policeman in the outcome of this case does at least cause you to stop and think what the court thinks it is doing by making an award of exemplary damages.

MR MACONACHIE: Absolutely, your Honour, absolutely, and if it is to make - - -

KIRBY J: That seems to run very close to my view in Cotogno v Lamb which this Court did not approve when that case came here.

MR MACONACHIE: No.

KIRBY J: I mean, how can you be punishing someone when it is not coming out of their pocket but is being paid by either the State or a fund? Compulsory under legislation, it just does not seem to work, but no one is challenging Cotogno v Lamb and, in fact, it was challenged in Gray or it was questioned and then reconfirmed and applied and I applied it in Gray. My theory, I think, is still correct, but the Court has not approved - - -

MR MACONACHIE: I happen to agree with your Honour, but I am not challenging it here. I do not have to, I do not want to. The only point I want to make on that third ground of appeal is that it is illegitimate when considering imposing exemplary damages or the quantum of exemplary damages to do other than focus on the wrongdoer to determine. It may be notional and it may be hypothetical to an extent. I would submit it is not for reasons I will give in a moment. You have to focus on what the wrongdoer did because it is only the wrongdoer’s liability for which the State is vicariously liable. It is a true vicarious liability. It is not a liability personal to the State. The State has done nothing wrong personally.

KIRBY J: The State may have done something wrong by not properly re-educating the constables, but you tell us that that was not pleaded or in issue at the trial but it does seem to have attracted some damages.

MR MACONACHIE: It did. It arose at the heel of the hunt in evidence in reply when Mrs Ibbett got into the witness box and said, in effect - I will take you to it, it is referred to in the written submissions – “I am offended by what these men have said. They say that the re-education program is just some PowerPoint presentation and that causes me to be upset.” Now, that can go to aggravated damages, we do not suggest otherwise and that is why it was not objected to and that is why the evidence was given, because with aggravated damages you look at the impact upon the victim, the plaintiff. With exemplary damages the focus is on the wrongdoer, not just objectively but principally objectively and it is not just to punish and it is not just to deter, but it is to demonstrate the opprobrium of the Court. It is that third element that the Court of Appeal paid most attention to.

HEYDON J: Strictly speaking, your argument has to be that so far as the constable was contemptuous of the re-education that would be legitimately be brought in either as aggravated or exemplary damages, but so far as the State did not respond properly by providing a proper re-education program that should not count against the constable and therefore against the State and the - - -

MR MACONACHIE: Yes, and that is what Justice Basten said and that is what Justice Ipp said. We accept for the purposes of aggravated damages when Mrs Ibbett heard what these two police officers said in the witness box she was entitled to be upset that their attitude to the re-education aggravated her sense of indignity and upset, but not for exemplary damages because the misconduct, if any, was in people further up the line and they had never been put on notice that their conduct was going to be called in issue.

GLEESON CJ: It is somewhat similar, somewhat similar, to a problem that arises very commonly in the administration of criminal justice when you know that somebody else is going to be paying the fine.

MR MACONACHIE: Yes. Our very short point is that Darling Island v Long was adopted or approved by this Court in Hollis v Vabu, that is, the masters tort theory of vicarious liability. It is a true vicarious liability and the 1983 Act, amended in 2003 by the insertion of Part 4, in terms adopts that masters tort view of vicarious liability. Accordingly, even though the police officers in the first instance are not to be punished by the award of exemplary damages by the court, the focus has to be on them, their wrongdoing, their consciousness, intention and the like because you have to determine what the wrongdoer, the miscreant did and what is deserving of punishment in that regard in order to determine what the State’s vicarious liability is.

KIRBY J: But the difficulty is that one at least of the very important ingredients for which you give exemplary damages and calculate their quantum is missing, namely, the sting.

MR MACONACHIE: It is in a direct sense missing, that is, because the State is sued and it is plain the State will pay.

KIRBY J: Exactly. This is what I have been trying to say for 15 years.

MR MACONACHIE: Quite.

KIRBY J: No one has heeded me, and it is not in issue in this appeal.

MR MACONACHIE: It is not in issue in this appeal. This may - - -

KIRBY J: Why did you not grasp the nettle and say that I was correct in Cotogno v Lamb?

MR MACONACHIE: Well, you were correct in Cotogno v Lamb, your Honour, but this Court disagreed with you - - -

KIRBY J: It certainly did.

MR MACONACHIE: - - - and we do not wish to put that in issue because we do not have to on the limited grounds of appeal that we bring. We have not sought to. I disavow any intention of challenging Lamb v Cotogno.

KIRBY J: All right, do not get enthusiastic.

GLEESON CJ: Because you might be out of the frying pan into the fire. The focus might then be on what would - - -

MR MACONACHIE: Well, I did not say that. It is Darling Island v Long, Fullagar J, and the words of the statute - - -

KIRBY J: But you could not be in the fire - - -

MR MACONACHIE: - - - which say what you are liable for is for the miscreant’s liability, not his acts.

KIRBY J: You cannot be in the fire of the personal liability of the State if it is not pleaded and fought at trial.

MR MACONACHIE: Absolutely, simple as that, your Honour.

KIRBY J: We will have to look at the pleading and we will have to look at the evidence.

MR MACONACHIE: Yes, your Honour, there is no issue between my learned friends to my right and me that it was not pleaded at trial. It was raised at trial and references to it are in my written submission and I will take you to what these two police officers said about the re-education program. That was taken into account certainly by the Chief Justice as being something that was relevant to exemplary damages. Justice Ipp and, as I read him, Justice Basten, both say that is an illegitimate approach because it smacks of personal wrongdoing and personal liability. That was never pleaded and it was never in issue at the trial. It was relevant evidence on the issue of aggravated damages because that concentrates upon the feeling of indignity and the like of Mrs - - -

GLEESON CJ: I think it is a shorthand expression for aggravated compensatory damages.

MR MACONACHIE: Absolutely.

KIRBY J: Well, you have two arguments against taking it into account, as I understand it. One, you cannot do it under the statute because the statute is addressed to true vicarious liability and theoretical or fictional liability for the acts of the constables.

MR MACONACHIE: Yes.

KIRBY J: But secondly, even if somehow you could deal with it, the State being a party before the Court, you could not deal with it in this case because it was not pleaded and it was not fought at trial. It was raised peripheral to another issue - aggravated damages.

MR MACONACHIE: Quite. The third aspect of it is that because it is a true vicarious liability and because of the statute and because of Long’s Case, you have to first determine, even though they are not parties to the proceedings as such, what is the appropriate judicial response to the wrongdoing of the police officers because that and only that is the liability for which the State can be vicariously liable.

KIRBY J: This point may not help you much in the end because when I looked at the amount of damages that Justice Basten and Chief Justice Spigelman provided, they come at it in a different way, but they eventually come to the same conclusion, so Justice Ipp just deletes it.

MR MACONACHIE: Yes, it appears as though they come at it in a different way, but I hope to demonstrate that Justice Basten in fact embraces, at least in part, the general approach of the Chief Justice, at least in respect of the first point, the exemplary damages point, but he approached it on the rolled up approach, if I can call it that – one transaction, one award of damages – and that has a lot of support both in this Court, in the Supreme Court of New South Wales and, indeed, in England.

It is not the rolled up approach as such that we complain about, but rather the fact that it takes the focus off looking at each of the elements of damages and recognising that against police officers the sums that accumulate are vastly in excess of what is necessary to punish the police officers or to demonstrate the opprobrium of the Court focusing on the police officers rather than the State with what we are told all the time has extraordinarily deep pockets, but when I send a fee note it does not seem that that is so.

GLEESON CJ: You are probably anxious to come back to your first point.

MR MACONACHIE: I would like to start there, if I could.

GLEESON CJ: Where is the passage in the judgment of Chief Justice Spigelman where it throws up this issue?

MR MACONACHIE: I was going to start with that, your Honour. I was going to say there are really two facts that are central to, and we say determinative of, the three arguments that we want to run. You will find at page 386 of volume 3 of the appeal book the approach of Justice Spigelman which then converts, at a page I will give you in a moment, into the finding. Perhaps if I start at page 385 at line 35 where his Honour commences to deal with “Exemplary Damages for Trespass to Land”. Having comprehensively dispatched my argument on section 21 of the Civil Liability Act he then turns - - -

KIRBY J: I am sorry to interrupt you again, but could I just get it clear in my mind, you are not challenging the common allowance of compensatory damages?

MR MACONACHIE: No, your Honour.

KIRBY J: Are you challenging the aggravated damages?

MR MACONACHIE: No, your Honour.

KIRBY J: So they are not in issue in the appeal?

MR MACONACHIE: No, your Honour.

KIRBY J: We are just concentrating on the exemplary?

MR MACONACHIE: Yes, your Honour.

KIRBY J: Thank you.

HEYDON J: I am sorry, Mr Maconachie, in your written submissions, page 11, there is a paragraph (iii) that says:

allow the cross appeal in respect of aggravated damages for the assault and make an award of $10,000 in respect thereof –

Let me just ask you a more general question. The notice of appeal on page 472 in volume 3 sets out orders which are different from these orders.

MR MACONACHIE: Yes, your Honour.

HEYDON J: These orders do not set out what the judgment sum desired is suitable for and order 6 does not accommodate the condition that Justice Gummow announced when special leave was granted about costs below and costs in this Court. Should there be a further change - - -

MR MACONACHIE: It certainly was intended to, but I see immediately that it does not.

HEYDON J: Should there not be a change to (iii) in view of what you said to Justice Kirby then or - - -

MR MACONACHIE: Can I just reflect on that, your Honour?

HEYDON J: Yes.

MR MACONACHIE: I had trouble in determining what I should propose as the orders because it goes in all directions, your Honour.

HEYDON J: It is rather complex, I know.

MR MACONACHIE: I may have been wrong when I said that we would challenge aggravated damages but can I work through the material?

KIRBY J: It is definitely there in order 7 and it is in your written submissions and I am just now left in a state of confusion.

MR MACONACHIE: Indeed, your Honour.

KIRBY J: I hope you will clarify it before the end of the day.

MR MACONACHIE: I will. What is in the written submissions are the points that we wish to make, your Honours. I have just been distracted somewhat from the - - -

KIRBY J: Maybe you put that in order to protect yourself in case it was found that some of what have been called exemplary damages were in fact aggravated damages, I do not know.

MR MACONACHIE: The central point we wish to agitate with respect to the quantum of damages is that there was no need to impose aggravated damages at the level that was imposed because ordinary compensatory damages and aggravated compensatory damages were more than enough to impose upon the police officers the opprobrium of the Court - - -

KIRBY J: So aggravated damages is in issue, contrary to the answer you gave me earlier?

MR MACONACHIE: Yes, it is, your Honour.

KIRBY J: And if you look at that very helpful table which you have at paragraph 27 which really, in a sense, presents where the issues bite, Justice Ipp did not provide aggravated damages at all.

MR MACONACHIE: Yes.

KIRBY J: So that you are, in a sense, seeking to sustain Justice Ipp’s outcome and some of his arguments.

MR MACONACHIE: For trespass to land, I am, your Honour. You are quite right, your Honour, and I apologise for misleading you a few minutes ago. Can I start where I hoped I could start with what the Chief Justice had to say when he commenced his discussion of exemplary damages for trespass to land? He makes the point at paragraph 54, that is, at line 50 on 385, that there was absolutely:

no basis for an award of exemplary damages with respect to the conduct of Constable Harman.

He then turns his attention to Constable Pickavance. At line 10, importantly, on page 386 he says:

There was no express finding of conscious wrongdoing, as Basten JA points out. That is not, in my opinion, for the reasons outlined above, dispositive of a case for exemplary damages, but it is of considerable significance in that regard.

That which his Honour had said earlier was to notice that Whitfeld v De Lauret where Chief Justice Knox had said only if there is contumelious disregard can you award exemplary damages, but then he looked at Gray and said that this Court by majority in Gray had held that it was not exclusively the province of exemplary damages where there was conscious wrongdoing, but the Court really did not have to and did not go any further in saying what else might sustain an award. He then goes on, that is the Chief Justice goes on, at paragraph 56 and says:

The reasons given by his Honour for the award of exemplary damages do not, in my view, identify the principal circumstances pertinent to the award in this case. His Honour placed particular reliance on the fact that the two police officers maintained their position that they had never done anything wrong and this was in some manner evidence that they had acted in contumelious disregard of the plaintiff’s rights.

I find this factor ambivalent. It is equally consistent with the existence, at the relevant time, of a belief that the entry onto Mrs Ibbett’s property was in fact lawful.

Could I pause there to say that this whole incident arose when Pickavance and Harman, late at night patrolling Forster in accordance with their duties as police officers, came across a known criminal. They, as was found by the trial judge, were required to keep an eye out for him. That may be a good thing. That may be a bad thing. Many would say it was a good thing. But they pulled him over. Rather than stop, he sped off, they followed. Mr Ibbett drove into his mother’s premises, with a remote control brought down the roller door and Constable Pickavance dived under the door as it was closing. They were the facts, and there is not argument about them.

Accordingly, that which the Chief Justice says is understandable, that is about the ambivalence. He could well have believed that what he was doing was right. He was horribly wrong about it, but he could well have believed at the time that what he was doing was right and lawful:

In this respect, the uncertainty of the law to which Basten JA refers, prevents this belief being characterised as obtuse or arrogant, to use the terminology I have adopted above. It is by no means clear to me that it rises to the level of “recklessness”. Nor am I satisfied that the entry itself was sufficiently outrageous to require condemnation.

So on the Gray and Whitfeld v De Lauret approach, the conventional approach to an award of damages of an exemplary nature, the Chief Justice came to the conclusion that that conventional approach was not available. Accordingly, if damages of an exemplary nature were going to be awarded it had to be on some other basis. He said:

The case for an award of exemplary damages with respect to the trespass to land can, however, in my opinion, be based on the police officers’ conduct towards a guest, indeed a resident, who was lawfully on the owner’s property. An occupier of land has a right to expect that this or her guests will not be assaulted by policemen who seek to inappropriately arrest him at gunpoint, strip search him and then search his vehicle on the premises. This is not simply disregard of the rights of Mrs Ibbett’s son. It also disregards her right, as the owner of the property, to have her guests undisturbed.

KIRBY J: I wonder if that is not a wrong focus about guests. It is a member of her family.

MR MACONACHIE: Yes.

KIRBY J: Does it hurt you if the attempt of the Chief Justice to describe the relationship as guest is changed to a member of the home owner’s family?

MR MACONACHIE: Not at all.

KIRBY J: Why is that not the correct approach?

MR MACONACHIE: Because what the law of trespass to land protects is the proprietary interest in the land.

GUMMOW J: No, it does not. It protects the right to exclusive possession.

MR MACONACHIE: I beg your Honour’s pardon, you are quite right - exclusive possession of the land by the occupier. It is an interference with that right that trespass directs its attention to whereas interference with the personal integrity of individuals is the focus of other torts such as trespass to the person in its various forms, the law of negligence and the like.

KIRBY J: But is not the exclusive possession not just for the person of the owner or occupier but for the family, the immediate family. I mean, most people live in their homes in quasi-family arrangements and that is why the law gives protection – to protect not just the person who is on the title but that person and that person’s immediate dependants, family members, spouses, partners and so on.

MR MACONACHIE: We can find no case which supports that extension, your Honour.

KIRBY J: But is not that the rationale?

MR MACONACHIE: No, it is not. It is, as Justice Gummow has rightly reminded me, to protect the right to exclusive possession of the person who is entitled to exclusive possession and not to those who might be there merely as licensees. It is the personal actions - - -

KIRBY J: That is all that children now are, licensees? That does not sound right.

MR MACONACHIE: I do not pretend to be a property lawyer. I would not claim to be a property lawyer but it seems to me that if there is a dispute over who is entitled to exclusive possession of the property Mr Ibbett would have not been able to put his hand up. Mrs Ibbett could. It is that interest - - -

KIRBY J: But Mrs Ibbett’s claim, surely, extends to the quiet occupation of her immediate family.

MR MACONACHIE: By her.

KIRBY J: It is a rather natural thing. Assume that he, Mr Ibbett junior, thought that these were a group of thugs or hoodlums who were pursuing him, a very natural thing for him to do is to try to go home and the home is the home which his mother owns or occupies but, as I understand it, he also resided there.

MR MACONACHIE: Yes, he did, your Honour.

KIRBY J: So, he has just gone home. If you asked him where did you go, he would not have said “I went to my mother’s home, I went to Mrs Ibbett’s home”, “I went home”.

MR MACONACHIE: Indeed. If his personal integrity is threatened outside, inside or anywhere else, then there are causes of action available to him for the protection of his personal integrity but he has no interest in the land, no right to possession which the law of trespass will protect; he has to look elsewhere. That is the very short point.

KIRBY J: All I am saying is that Chief Justice Spigelman may have introduced a bit of a red herring here about talking of guests. That may or may not be the law but it is not really the category into which Mr Ibbett fell. He fell into the homeowner’s or occupier’s family.

MR MACONACHIE: But the homeowner’s/occupier’s family have no right to exclusive possession of the house absent contract with the person who has the legal title.

KIRBY J: But this is Mrs Ibbett’s action, it is her action and she is claiming that the quiet which the common law protects is her own quiet but also the quiet of her immediate blood relatives.

MR MACONACHIE: That is where I would join issue with your Honour.

KIRBY J: Is there no authority on this? One would have thought there would be oodles of it going back to the 14th century.

MR MACONACHIE: Well, I have not found any, and Justice Ipp could not find any, and as I read my learned friend’s submissions, he could not find any.

KIRBY J: If we are in the realm of general principle, if you look at the purpose of the law of trespass, being to protect exclusive possession, it is not just of the person on the title; it is of the person and their immediate blood relatives at least. Guests are another issue. I mean, all sorts of people have - canvassers and people who come upon your property lawfully, but they are in a different category. But your blood relatives living with you, it just seems that is the purpose of the common law, to protect their quiet.

MR MACONACHIE: Well, the only answer I can give your Honour is that trespass focuses on the protection of the right to exclusive possession of the person who is legally entitled thereto. The essence of trespass is directness, not consequential wrongdoing. That sounds in case. If Mrs Ibbett does not have her right to exclusive possession threatened but somebody else, even if he had some right to protection in that regard, the interference with Mrs Ibbett’s rights is indirect and not direct and therefore cannot sustain a claim in trespass.

GLEESON CJ: Suppose the police pursued on to Mrs Ibbett’s property, in circumstances that constituted trespass, a total stranger, and then proceeded, in Mrs Ibbett’s sight, to set upon him and beat the daylights out of him. Would that constitute a kind of interference with Mrs Ibbett’s rights that might attract an award of exemplary damages for trespass?

MR MACONACHIE: We would submit not. It might support a claim by her for intentional infliction of nervous shock of the Wilkinson v Downton variety or an action in negligence because the circumstances would fall within the Mount Isa Mines v Pusey, Tame v New South Wales construct, but her right to immediate possession is not threatened. It is imposed upon and vindicatory or compensatory damages must flow, but her right to immediate possession is not challenged at all.

If she were removed by the police with a directive that she must never return, that is, they purported to dispossess her, that might, but not in the circumstances that your Honour refers to because of the very nature of the interests that the action for trespass is intended to protect and the requirement for directness of action against that interest.

KIRBY J: How did Justice Basten and Justice Ipp in dissent deal with this issue?

MR MACONACHIE: At page 448 of the appeal book, you will find, I think I am right in saying, the approach that Justice Basten took to it. He is dealing with the reasoning of the trial judge on the issue of exemplary damages for trespass to land and that starts at 444, line 46 in the appeal book. At page 448 in paragraph 252, he comes to the same conclusion as do the other three judges that there was “no finding justifying an award of exemplary damages in relation to Constable Harman’s conduct”. Constable Harman, your Honours will recall, remained outside the premises whilst the critical facts, the critical events occurred. A second concern in relation to his Honour’s reasoning he says at page 448, line 30, paragraph 253:

A second concern in relation to his Honour’s reasoning and findings with respect to the trespass is that the lawfulness of the entry involved “complex issues”, a factor which militates against a conclusion of deliberate wrongdoing. As his Honour noted in his findings, after dealing with the assault -

and he there sets out what his Honour had to say.

There followed an extensive discussion of the law, as a result of which, his Honour concluded:

“In this case Pickavance’s dramatic entry into the plaintiff’s garage in pursuit of Ibbett and the presence of both police officers on the premises was not preceded by any request to the plaintiff containing a proper announcement for their reason for entry. . . . I do not accept the evidence of the police officers . . .

Although no challenge was made to this finding, in its terms, that finding is insufficient to show, even by implication, that the police officers actually knew, or even ought to have known, that they had no lawful right to enter the premises to effect an arrest at the time of entry. Indeed, his Honour’s remark that that question itself involved complex issues of legal principle suggests the contrary.

He then deals with a third concern, which I will pass over for present purposes. He then comes at page 450 of the appeal book, line 50:

the primary judge must be understood to have awarded exemplary damages on the basis of something less than deliberate wrongdoing.

He then says at paragraph 257:

Whether or not at the time of entry to the Plaintiff’s land Constable Pickavance knew that he was exceeding his powers as a police officer, from the moment that he dived under the closing garage door, it was reasonable to infer that he was indifferent as to whether he had lawful authority for remaining on the Plaintiff’s land and that he acted in a manner which showed palpable disregard for her rights as a proprietor.

We say that picks up the construct employed by the Chief Justice, that which we call guest or family interest.

KIRBY J: But it does not solve the problem for you because, do her rights as a proprietor include the right to quiet occupation, including for her family?

MR MACONACHIE: Yes, but for the reasons that I have given earlier with respect to Chief Justice Spigelman, they cannot so extend and what Justice Basten is doing here, we say, is embracing that which the Chief Justice said in respect of the right to have guests left untrammelled.

KIRBY J: If you substitute family for guests?

MR MACONACHIE: I do not mean to draw any distinction between family and guests for the purpose of this discussion because he was, albeit a member of her family, he was a guest.

KIRBY J: A guest can be a whole range of relationships, whereas family are there with you and it is entirely natural and understandable that people should want to defend the quiet of their families.

MR MACONACHIE: I can give you no better answer than I gave you earlier. I point to this part - - -

KIRBY J: I am astonished that this has never arisen in 800 years of the common law.

MR MACONACHIE: I can only say, your Honour, I have looked, Mr Justice Ipp looked, my learned friends have looked, nobody has found anything.

KIRBY J: I will do a little snooping for myself.

MR MACONACHIE: I will be re-educated myself, apparently.

KIRBY J: I bet you only looked in New South Wales and England?

MR MACONACHIE: No, your Honour, no. I am member of the Bar of Ireland, I had a look there.

KIRBY J: That is often worth a good look too. Anyway, let us move on.

MR MACONACHIE: I was addressing my attention to page 451, line 15:

palpable disregard for her rights as a proprietor.

That, we say, embraces the same propositions that found favour with the Chief Justice:

The findings of fact justifying that conclusion have been referred to above. Accordingly, despite the concerns with respect to aspects of his Honour’s findings, I am not persuaded that the conduct of Constable Pickavance, accepted by the trial judge, was insufficient to warrant an award of exemplary damages.

It is not entirely clear, with respect to his Honour, what he determined was sufficient. It can only mean, we say, that he embraced that which the Chief Justice - - -

HEYDON J: Do you see or do you have any submission on this? Let us say she had slept through all of this, but the same events had happened in the garage. Would the reasoning still hold? Could you say that they were still showing a palpable disregard for her rights as a proprietor, or is it crucial that she actually witnessed these events which must have been distressing to witness?

MR MACONACHIE: Yes, and that, your Honour, we say can and did reflect itself in an award of vindicatory or general damages and aggravated damages, but what was not put at risk, what was not challenged, as it were, was her right to exclusive possession in any dispossessive sense. It is the actions that protect one’s personal integrity, trespass to the person and the like, which she engaged and on which she was successful and on which she got aggravated and exemplary damages, that should be the focus for the Court in those circumstances. If she had slept through it all, she still would have been entitled to damages to vindicate her right to exclusive possession, but that she saw the events really sounds in her relationship with her son and the protections given to her by the law for her personal integrity and not her property.

In our written submission, your Honour, we give references to Williams v Hursey. I do not want to take you to them. The point is plainly made that motives may be important but in the first instance I have not put into the written submission but it is in, I think their Honours say, principally and in the first instance, motives of the wrongdoer, not the reaction of the wronged which goes to determine whether there should be an award of exemplary damages and if so in what sum.

Then, we submit, in paragraph 46 on page 6 of our written submission that to intrude into the question of exemplary damages the plaintiff’s subjective concerns for another or perhaps many others introduces a further element of complexity to an already difficult and anomalous area of the law which can only lead to confusion and error. Given that cases of this kind, from time to time, even in New South Wales, have to be tried by juries it is important that there be a clear distinction, as clear as can be, between the rights that are protected by an action for trespass to land and the rights that are protected by the actions at law that are intended to protect the personal integrity of citizens, including proprietors of land.

KIRBY J: All we have to ask ourselves here is, do the rights of the proprietor extend to a right to have quiet enjoyment of a home with the proprietor’s immediate family and there can only be one answer to that, they do, otherwise the whole notion of just having the protection of the person on the title is ridiculous. It is not the purpose for which the common law applies.

MR MACONACHIE: Can I say that I agree with your Honour that there can only be one answer, but I would respectfully submit it is the other answer, no, for the reasons that I have given.

KIRBY J: It seems a very mean attitude to the quiet of the citizens in the State.

MR MACONACHIE: Your Honour is always accusing me of that. It is a question, your Honour, of the purpose of the – to use the old speak – writ of trespass and the purpose of the personal actions which are intended to protect the individual in his or her persona. We say that in paragraph 50. I will not say it again.

KIRBY J: Justice Ipp was with you on this.

MR MACONACHIE: Yes, he was.

KIRBY J: Did Justice Basten say anything more about this?

MR MACONACHIE: No, your Honour, I do not think he did. Well, he did to this extent. Immediately after the passage I have just referred you to at page 451 his Honour Justice Basten dealt with, “Trespass to land – aggravated damages”. I will not take you through every word of what he says. At 454, line 18 his Honour says:

Nevertheless, for the reasons identified by the Chief Justice at [94]-[97] –

which you will find at appeal book 397, lines 14 to 55 –

referring to the findings made by the trial judge as to relevant circumstances, the amount of his Honour’s award in relation to aggravated damages with respect to the trespass to land remains within the appropriate range and need not be varied.

What the Chief Justice says at 94 to 97 on page 397 of the appeal book is this:

I agree that at least with respect to the factor of withdrawal of the charges, his Honour took into account a consideration irrelevant to the assessment of aggravated damages for the trespass to land . . .

The indignity and insult suffered by Mrs Ibbett was significantly affected by the way her guest, indeed her own son resident on the premises, was treated. This is, as I have noted in my discussion of exemplary damages above, is a matter which adds to the damage suffered by way of insult and indignity to the property interest of the owner.

That makes it even clearer, in my submission, that Justice Basten was engaging the reasoning of the Chief Justice on what we have termed the guest interest or family member interest point. Justice Ipp dealt with the matter. His judgment commences at page 400 of the appeal book and he deals with the question of exemplary damages for trespass at page 416:

175 The trial judge awarded Mrs Ibbett $20,000 for exemplary damages for the trespass.

176 I agree with Basten JA that the trial judge erred in taking into account the conduct of Constable Harman on this issue.

Constable Harman’s conduct was innocent in the relevant sense.

177 I agree with Basten JA that the views expressed by the trial judge in regard to the “complex issues” relating to the lawfulness of the entry militate against a finding of deliberate wrongdoing in regard to the trespass. I would add that the finding that the issues were complex militates against a finding of reckless wrongdoing.

GUMMOW J: What does paragraph 178 mean, “knew that he was exceeding his powers in entering”. What powers? Common law powers, are they?

MR MACONACHIE: Yes, your Honour, I would think, or his - - -

GUMMOW J: It could not be anything else, could it?

MR MACONACHIE: Well, there is section 352 of the Crimes Act which provides that a constable can arrest on reasonable suspicion in certain circumstances.

GUMMOW J: Right, thank you.

MR MACONACHIE: That is where he deals with the trespass point, but if I can - - -

HEYDON J: Except that in 180 he expresses a fundamental disagreement with the approach of aggregation and presumably the component parts of it.

MR MACONACHIE: Yes, and he says:

I have expressed my fundamental disagreement with this approach.

He does that - - -

HEYDON J: Page 405:

lumping together awards of damages for different causes of action offends against basic concepts of fairness.

MR MACONACHIE: Yes, your Honour. There is another passage, I apologise, it is in the written submissions. I think it starts at 414, your Honours, and at line 36:

168 The reasons identified by the Chief Justice were, substantially, the indignity and insult suffered by Mrs Ibbett in the way her son, as a guest, was treated by the police.

He repeats what Chief Justice Spigelman says and I have read that to you.

The Chief Justice describes this as a right of Mrs Ibbett, as the owner of the property, “to have her guests undisturbed”.

169 I respectfully disagree with the Chief Justice and Basten JA. In my opinion, no such right (sounding in damages) has ever existed and it does not now exist.

170 I know of no authority that supports the existence of the right of an owner of property to claim damages because his or her guests have been disturbed in some way.

171 The recognition of such a right would give rise to serious anomalies –

and so he goes on to - - -

KIRBY J: He is talking about hospitality. One has an image of convivial dinner parties and lots of wine flowing and so on, but we are talking about the family, the immediate blood family.

MR MACONACHIE: Indeed, your Honour.

KIRBY J: It is absolutely different.

MR MACONACHIE: We would submit not, your Honour. I can only repeat what I have said earlier, that there is a narrow focus for the protections given by the action for trespass to land and it is the - - -

KIRBY J: You show me a case where the common law has said that and I will believe it, but without that I will just apply my own judgment that the common law guarantees the quiet occupation of the home and curtilage to the person and their immediate family. Guests brought in a whole wrong issue. It is a red herring, with all respect to Chief Justice Spigelman.

MR MACONACHIE: Of course, your Honour, but my answer to your Honour’s proposition is that the words “and the family” from the proposition you have just articulated should be hived off because those elements are protected by the law but by different actions – actions personal to those who are harmed or an action on the case by the proprietor because the harm to the proprietor is not direct but indirect, and that is the essence of the distinction between trespass and case.

KIRBY J: That seems a rather narrow view of the proprietor’s rights. However, I think we have the issue.

MR MACONACHIE: Could I take your Honours to the double punishment point which is at page 7 of my written submission. The point that I really want to make is made at paragraph 57 on page 8. Their Honours failed to observe or properly take account of the fact that the wrongdoer, Pickavance, was a relatively junior police officer. It is the impact upon him which is the appropriate consideration. An award of $10,000 for general or vindicatory damages, let alone an award of $30,000 for general damages and aggravated damages, is self-evidently more than sufficient to punish or deter the conduct found against Pickavance and equally self-evidently, more than a properly exercised sentencing discretion would permit by way of a fine for an offence under the Inclosed Lands Act.

My learned friends say, no, you should be thinking about some home invasion offence which can get you 20 years, but without wishing to descend into some comparative analysis of that kind, that which Senior Constable Pickavance did he did in the course of his duty as a policy officer. There is no finding that what he did he did with conscious wrongdoing. There is a finding by Justice Basten that he was indifferent to the rights of the proprietor and it was – and I do not mean to minimise it when I say this – in a relatively short time span and a police officer who was wrong in what he did but an award of damages of a compensatory kind, ordinary and compensatory, that amounts to $30,000 or $40,000 for a police officer attending to the safekeeping of the streets of Forster for the citizens of New South Wales is an enormous penalty in itself.

GLEESON CJ: What exactly was the conduct in respect of which this award was being made?

MR MACONACHIE: Justice Basten approaches the question of exemplary damages on the basis of a one transaction global award approach, similar to that which was undertaken by the Court of Appeal in Adams v Kennedy. Chief Justice Spigelman separated the assault damages and the trespass damages and was careful to assert, in respect of the exemplary damages, that it was only for the entry onto the premises and not the waving of the gun around.

GLEESON CJ: That is what I wanted to know. Was this element of damages awarded for conduct that included pointing the gun at her and saying, “Open the door”?

MR MACONACHIE: Well, it is not entirely clear by looking at that which – the approach taken by Justice Basten and the approach taken by the Chief Justice is different and it is a bit hard to know, with respect to them, particularly Justice Basten, what was influencing his thinking in respect of which award of damages. But Chief Justice Spigelman – and I think I can find it reasonably quickly – was careful – yes, it is at page 396, your Honour. He is there dealing, as I understand him, with the exemplary damages for the trespass to land. He says at paragraph 92:

The focus on entry in this way does not encompass other aspects of the conduct of Constable Pickavance which enhanced the extent to which Mrs Ibbett suffered insult or indignity or outrage . . .

His Honour awarded the amount of $20,000 by way of aggravated damages in this regard -

that is for the assault –

Basten JA accepts that the award of $20,000 aggravated damages was appropriate, despite having identified an error in his Honour’s approach.

I agree that at least with respect to the factor of withdrawal of the charges –

There had been some negotiation after the event where charges were withdrawn –

his Honour took into account a consideration irrelevant to the assessment of aggravated damages for the trespass to land.

Then he goes on to talk about the guest interest point. This head of damage, as I understand, this rather complex series of awards of damages, the Chief Justice was attempting to say, “I’m giving $20,000 for exemplary damages for the trespass to land and I am consciously putting out of my mind the waving around of the pistol”.

GLEESON CJ: Where did he cover that? Where did he cover the pistol?

MR MACONACHIE: He dealt with that at – pardon me, I will look at my table. I think that is probably the easiest. Page 390 point 50. He does so rather briefly. At page 390, paragraph 69 he deals with the general damages for the assault. He deals with the exemplary damages for the assault.

GLEESON CJ: Was the assault the pointing the gun at her?

MR MACONACHIE: At 393, yes, your Honour, 393 line 10:

There were no circumstances of any character which could conceivably have justified the Constable turning his gun on Mrs Ibbett and demanding that she act in a particular manner. Such conduct deserves condemnation by the Court.

He says $10,000 is “manifestly inadequate”. He then calls in aid the Court of Appeal’s judgment in Adams v Kennedy and Lee v Kennedy and increases it to $25,000.

GLEESON CJ: Is that the point you are now on? Is that your No 2 point or is it caught up in your No 3 point?

MR MACONACHIE: My No 2 point is that given all of the other awards of damages for the assault, for aggravated damages, for exemplary damages, and then on the trespass to land count there is an award of general damages or vindicatory damages and compensatory aggravated damages but then they put on top of that a figure for exemplary damages of $20,000.

KIRBY J: Is this a suggestion that there has been double counting in the award?

MR MACONACHIE: Yes, your Honour. What they have failed to do, in our respectful submission, is this, to focus on what would have been a proper punishment for Pickavance as a police officer because that is all that the State can be liable for vicariously, to look at each of the individual elements and come to an individual amount, except that Mr Justice Basten looked at exemplary damages for both assault and trespass globally but came to the same conclusion in a monetary sense as Chief Justice Spigelman, but then they did not step back – and I know this is shades of Arthur Robinson (Grafton) - but they did not step back and say is that sufficient to punish Pickavance without adding exemplary damages for trespass to land. Waving a pistol at an old lady at 1.40 in the morning - - -

GLEESON CJ: It was not an old lady, she was only 69.

MR MACONACHIE: I beg your Honour’s pardon. The Court of Appeal referred to her as an elderly lady.

GLEESON CJ: Yes, that was an error of fact.

MR MACONACHIE: They were wrong. I accept that, your Honour, and I accept it more and more as each day goes past. To wave a pistol at 1.40 in the morning in the face of a lady in the sum of her years may well attract - - -

GLEESON CJ: But that is the problem, it was not the waving of the pistol around. According to her evidence it was a command to her to do something with a pistol pointed at her.

MR MACONACHIE: Yes, your Honour.

GLEESON CJ: That is to say, an implied threat that they would shoot her if she did not do it.

MR MACONACHIE: There is no finding that there was an implied threat that he would shoot her if she did not do it.

GLEESON CJ: That is the message you convey when you point a gun at somebody and tell them to do something, is it not?

MR MACONACHIE: All I can say is there is no finding either at trial or in the Court of Appeal and I do not want your Honour to be opening your shoulders in that regard up here.

KIRBY J: Yes, but all this was happening at 2 am. She was presumably asleep.

MR MACONACHIE: Yes.

KIRBY J: Into the place they rush.

MR MACONACHIE: Yes.

KIRBY J: They are jumping under - the constables are coming into the very area where she is and then there is a tremendous lot of screaming, she goes to see what it is all about, she sees her son with these two people in plainclothes who she does not know is a policeman and one of them points a gun at her and gives her orders, so it is a pretty aggravated instance and I have no doubt that the Court of Appeal were mindful of what Justice Priestley had said in Adams that $100,000, in the circumstances of that case, was not disturbable.

MR MACONACHIE: Indeed, your Honour, and I will come to Adams v Kennedy. In fact, they did not say it was not disturbable. They increased it dramatically to $100,000.

HEYDON J: Mr Maconachie, we have to be precise, have we not? This waving the gun business is the assault tort, it is not the trespass to land tort.

MR MACONACHIE: Yes.

HEYDON J: Your attack is directed to the figure of $20,000 for exemplary damages for trespass.

MR MACONACHIE: Exactly.

HEYDON J: You are not attacking the assault element.

MR MACONACHIE: No, I am not.

HEYDON J: Your proposed order in relation to an award of $10,000 is in relation to what was universally agreed to be right in the Court of Appeal, those orders - - -

MR MACONACHIE: Save and except under ground 3 I do attack the exemplary damages generally, but my point at this stage of the argument is that - - -

HEYDON J: That is not reflected in the – 10 plus 20 is 30. The constable is a poor man.

MR MACONACHIE: Yes, that is enough.

HEYDON J: You do not get a discount for poverty when it is general and aggravated damages, but you do on exemplary damages, no point - - -

MR MACONACHIE: But you do when it is exemplary, yes. It is as simple as that.

HEYDON J: Yes.

GLEESON CJ: Even though you are not the person who is going to pay the fine?

MR MACONACHIE: No, because – and that is the next point – it is only the liability that would lawfully be imposed upon Pickavance for which the State can be made vicariously liable, either under the general law or by reason of the provisions of the Vicarious Liability Act 1983.

GLEESON CJ: What if you had a claim for exemplary damages against a journalist in circumstances where you knew that the publisher was going to pay the amount?

MR MACONACHIE: Your Honour, there are some fairly arcane principles that inform defamation law. I, standing here at the moment, cannot give you an answer to that. My answer to you can only be that all of the cases say – all of the cases - that you have to look at the wrongdoing of the miscreant. That is the focus for exemplary damages. I think I am right in saying that there is hardly – at least I cannot remember - a defamation action when the journalist was not sued together with the publisher, and that would be my answer to you, because the publisher is personally liable.

KIRBY J: Now, very correctly, Justice Heydon has insisted on the delineation between the assault and the trespass.

MR MACONACHIE: Yes, your Honour.

KIRBY J: And it is made a little complicated by the fact that the trial judge gave $10,000 for exemplary damages, which Chief Justice Spigelman increased to $25,000 for the assault. Justice Ipp would have stuck with the primary judge’s award and Justice Basten does not delineate what he would have ordered. So we really are left in a degree of uncertainty as to what component of Justice Basten’s $45,000 is attributable to the assault. But let us assume it is $25,000 of the $45,000. Would that be a fair assumption, do you think?

MR MACONACHIE: It is the assumption upon which I have been forced to proceed because otherwise it becomes almost unmanageable.

KIRBY J: Yes, it is just too difficult. So if that is so we can, in a sense, put the assault to one side and say the issue there was do you increase $10,000 to $25,000, and your submission, as I understand it, on issue two is that $10,000 was a correct amount, having regard to the purposes for which exemplary damages are provided by the law.

MR MACONACHIE: Quite, yes.

KIRBY J: Justice Ipp said that, so again you are really supporting Justice Ipp’s approach to this whole case?

MR MACONACHIE: Yes.

KIRBY J: But how does one square $10,000 with $100,000 that the Court of Appeal in Adams v Kennedy said was setting the right sort of standard in terms of damages against the contumelious behaviour of the police officers?

MR MACONACHIE: Because Adams v Kennedy, your Honours, is wrong. The approach of Justice Priestley - - -

KIRBY J: What was the damages in Lamb v Cotogno, because I was looking at what Justice Priestley said in Adams v Kennedy, and he was greatly affected by what the High Court had said in Lamb v Cotogno.

MR MACONACHIE: Despite what this Court said in the Carson Case, it is very difficult, your Honour, to compare and contrast awards of exemplary damages in particular, because they are so particular to the conduct and the motivation of the miscreant. It was a low sum by comparison, I think $15,000 from recollection, but I do not remember. I will ask Mr Chrysostomou to have a look at it.

KIRBY J: In Lamb v Cotogno the exemplary damages were $5,000.

MR MACONACHIE: I knew it was a low figure, I was not quite sure how low.

KIRBY J: Mind you, that is 1987.

MR MACONACHIE: Indeed, your Honour.

KIRBY J: If you double it, you have roughly what the primary judge has allowed here.

MR MACONACHIE: It is probably against me, but I would counsel your Honours to be careful about looking at tariffs for - - -

KIRBY J: No, that is correct, and this Court has said that in a number of cases. In fact, as I recall the circumstances of Lamb v Cotogno, that was an extended incident where a driver knowing a person was hanging onto a car continued driving in a way that was very dangerous to that person’s life.

MR MACONACHIE: More than that, your Honour - - -

KIRBY J: It was a prolonged incident.

MR MACONACHIE: It was more than that, the driver having shaken his assailant from the bonnet of the car and had him fall to the roadway where, as it turns out, he fractured bones in both his feet, he having suffered from osteomyelitis, the driver then drove off and the man was found half an hour later by neighbours writhing in pain. It was the callous and indifferent act of leaving him rather than, as this Court said, honouring the duty under which he came to assist him because of the harm that had been done to him, that was where the focus was for the exemplary damages in Lamb v Cotogno.

KIRBY J: I think the issue for the appellate courts, both in the Court of Appeal and this Court in Lamb was not the quantum of the exemplary damages, but whether they were admissible as a matter of law given that they were then recovered from the compulsory third party insurer. It was a limited question. We were not, as it were, setting a darg, whereas, in this case, the issue is what is the appropriate amount to set for a policeman rushing into a person’s quiet.

MR MACONACHIE: It is not so much what is the appropriate amount but rather what is the mechanism by which you get to determining in a particular case what is appropriate; there is the world of difference.

GLEESON CJ: You say there is an error of principle here in the form of double punishment.

MR MACONACHIE: Yes, and in a failure on the part of the Court of Appeal, and for that matter, the trial judge, to recognise that it was not the deep pockets of the State that was the focus of the means consideration, it was the much, much shallower pockets of a police constable doing his duty but getting it wrong. Unless you focus on the wrongdoing of the police officer and thereby determine what is appropriate punishment, if any, that you can come to the appropriate conclusion. If you do not do that and, with respect to Justice Kirby, say what is the darg, what is the appropriate sum in circumstances of this kind, you lose focus on - - -

KIRBY J: I take that criticism and I accept it because the real legal issue is did the Court of Appeal correctly interfere with the primary judge’s determinant – was there an error of principle on the part of the primary judge? The primary judge did not allow any aggravated damages and even Justice Ipp agreed that there ought to have been $10,000 aggravated. Do you agree with Justice Ipp on that?

MR MACONACHIE: Yes, I am not going to challenge that, your Honour.

KIRBY J: So, essentially, you support Justice Ipp. You say the only error of the primary judge on the assault was not allowing aggravated damages to Mrs Ibbett but, save for that, if we accept Justice Basten’s allowance at $25,000, you opt for Justice Ipp’s more modest approach which you say does not amount to double punishment.

MR MACONACHIE: Quite. That is because Justice Ipp approaches it according to proper principles. He focuses on the police officer’s wrongdoing, he focuses on the proper means of the police officer, he focuses on the considerations of rarity of awards of this kind and, if they are made, moderation, whereas Adams v Kennedy approaches the matter on the basis that – I will take you to it in a moment – the State has to be taught a lesson. But, for the reasons that I have already given and which are set out in the written submissions, that is just an entirely unprincipled and wrong approach.

It is not a question of smacking the State across the wrist. It is a question of determining the liability that would otherwise have been imposed upon Pickavance, and that is for which, and only that for which, the Vicarious Liability Act and the general law – see Darling Island v Long, see Hollis v Vabu, the references are in the written submission – and it for that reason and that reason alone that we say that the approach taken by Justice Ipp was the appropriate one.

Can I turn my attention to Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78? I had marked up another copy. I hope your Honours will forgive me if I take you to paragraph numbers. This is a case in which there was trespass to the person and an allegation of false imprisonment against a gentleman and his de facto wife, and the State was said to be vicariously liable for the conduct of the first three defendants, the police officers. This was before the Vicarious Liability Act and it was before Hollis v Vabu made it plain that the masters tort theory of vicarious liability as expounded by Justice Fullagar in Darling Island v Long was the appropriate approach.

At paragraph 8 Justice Priestley sets out the factual circumstances and they are essentially that a police officer went to the premises at Bangalow, there was a disagreement, the police officer went away, he came back with some other police officers, particularly Bordin and Krause, there was a melee, Mr Adams was handcuffed so roughly that his shoulder was badly damaged, an allowance of $50,000 I think was awarded for that by the trial judge and not interfered with on appeal. I looked towards Mr Kinsella because he was in the trial and in the appeal, but I think that is right, your Honours.

HEYDON J: Fifty thousand general damages and $10,000 for reduced earning capacity.

MR MACONACHIE: Yes, and then there was an appeal by Mr Adams and he succeeded. At paragraph 31, trespass to property was dealt with and Justice Priestley said:

once it is recognised that the arrest was unlawful, it follows that the forcible entry to the premises was a trespass to property.

At paragraph 32 he says:

For the reasons I have given, in my opinion the trial judge’s findings of fact not only supported his conclusion that there had been an unlawful assault upon the plaintiff (trespass to person) but also required the legal conclusions that additionally there had been trespass to his property and an unlawful arrest constituting the starting point of a false imprisonment.

Then he turned his attention the damages. At paragraph 35 he referred to Lamb v Cotogno and the extensive discussion on exemplary damages there to be found. In the middle of that paragraph:

the conduct of the defendants in the present case, as found by the trial judge, should have led to an award of exemplary damages in regard to each of the causes of action –

three of them, all trespassory -

There is little guidance from the reported decisions on what appropriate amounts of exemplary damages in the present case would be; I do not think the position in this respect has materially changed since I discussed a slightly different aspect of it in Commonwealth of Australia v Murray -

Then he says at paragraph 36:

In the present case, although strictly it would be proper to award a separate amount for each cause of action, it seems to me that since the different causes of action arose out of the one series of closely connected events, it is appropriate to award one aggregate figure in respect of all the causes of action. That figure should indicate my view that the conduct of the defendants was reprehensible, mark the court’s disapproval of it. The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses of the kind that occurred in the present case do not happen. In my assessment the appropriate assessment should be fixed at the aggregate sum of $100,000.

These are the submissions that I would want to make about it. There is no consideration of each of the individual defendants or his or her part in the events or his or her degree of departure from proper standards or of conduct deserving of punishment. There is no consideration of each cause of action and the elements of it and how the ordinary damages impact on deterrents, punishment or the disapproval of the court. There is no consideration of the fact that the State was only vicariously liable, and I think I am right in saying that the State was sued only vicariously. That is how the judgment reads. But, rather, there is just an omnibus approach to $100,000 and this is to make the State officials sit up and take notice. But it was the acts of the police officers that had to be made the subject of careful attention to determine what their liability properly would be.

This omnibus approach not only in terms of the causes of action being dealt with as though there is one transaction – and that of itself is not improper, we would submit – but there was no consideration of what each of the defendants did, the extent to which it departed from proper standards, the extent to which it was knowingly wrong. With great respect to the judges of the Court of Appeal who wrote the judgment, it is unprincipled and misleading. It becomes, to use Justice Kirby’s words, something of a darg in an area where that is misleading and improper. We would submit that this Court should overrule Adams v Kennedy for the reasons that I have given, that it is unprincipled and does not properly apply the law.

GUMMOW J: Just explain that to me again shortly?

MR MACONACHIE: Yes, your Honour.

GUMMOW J: Why do you say Adams v Kennedy is unprincipled?

MR MACONACHIE: Paragraph 36 is the nub of it, your Honour. There Justice Priestley says:

In the present case, although strictly it would be proper to award a separate amount for each cause of action, it seems to me that since the different causes of action arose out of the one series of closely connected events, it is appropriate to award one aggregate figure in respect of all the causes of action.

There were three of them.

That figure should indicate my view that the conduct of the defendants was reprehensible, mark the court’s disapproval of it.

Thus far, we would say no error.

HEYDON J: I thought you said there was an error.

MR MACONACHIE: There is, but - - -

HEYDON J: You agree with Justice Ipp, you should not aggregate, it destroys rights of appeal and so on?

MR MACONACHIE: I support that which Justice Ipp there said but I said a few moments ago, and will demonstrate by reference to a decision of this Court, that to take the aggregation of causes of action, one transaction approach is not of itself wrong, but if you do you need to analyse the conduct of each of the participant’s carefully to determine what their liability is or should be to exemplary damages in particular.

HEYDON J: We are not worried about that here because only one constable committed a tort; the other one did not.

MR MACONACHIE: Quite. What I am attempting to do is to demonstrate why Adams v Kennedy is wrong and why the approach in Adams v Kennedy which was relied on by the Chief Justice and by Justice Basten is wrong and that, accordingly, the approach that they take to exemplary damages is infected with an approach which is wrong.

HEYDON J: Your point is basically this, is it not, three police officers misbehaved themselves and the State was vicariously liable for their behaviour?

MR MACONACHIE: Yes.

HEYDON J: But in the second-last sentence of paragraph 36 there is some suggestion that there had been a breach by New South Wales of a duty to oversee and train and discipline the police force properly and you say, in effect, where is the pleading on that. You certainly say that for this case there might be some claim in negligence or worse but there just is not any such claim. That is your central criticism of Adams v Kennedy.

MR MACONACHIE: That is the central criticism of Adams v Kennedy, but my subsidiary criticism of Adams v Kennedy is that in the third-last sentence Justice Priestley says:

That figure should indicate my view that the conduct of the defendants was reprehensible –

That is, apparently, all four of them, that is, the three police officers and the State, but even if you restrict it to the three police officers, there is nowhere any analysis of what it is that they did, why it is that the general damages did not suffice to punish, what was the conscious wrongdoing, if any, of each of them.

HEYDON J: But I do not think we should overrule a decision of the New South Wales Court of Appeal in a respect which would not by itself help you.

MR MACONACHIE: It does help me.

HEYDON J: There is one respect in which overruling it would help you, but here there is one defendant, not three.

MR MACONACHIE: All right, your Honour. I have said what I want to say. Certainly, the second-last sentence is, in my respectful submission, the point that gave Justices Spigelman and Basten an improper focus on the re-education question.

GLEESON CJ: That might depend on whether what Justice Priestley was intending to say was “We ought to set out to make an example of the State of New South Wales” or whether he was intending to say “We ought to make an example of these police officers so that what we do will be taken into account amongst other people by the people who have some capacity to change their conduct”.

MR MACONACHIE: If that is how you would read the second-last sentence in paragraph 36, then I am entitled to put the submission that I have put that Justice Priestley has not made it clear in the third-last sentence the defendant’s proposition, who did what that was wrong and why, because he has lumped all of the defendants together, including the State.

GLEESON CJ: The reason why you award exemplary damages is to make somebody sit up and take notice - - -

MR MACONACHIE: Absolutely.

GLEESON CJ: - - - other than the person against whom the award of damages is being made, is it not? You are making an example of that person – an example to whom?

MR MACONACHIE: To other people who might conduct themselves in a particular way. My basic point is this: if you make an example of them so that others will sit up and take notice, you make an example of them in their circumstances and having regard to what they did or did not do, having regard to their capacity to pay and having regard to whether or not an award of general damages and aggravated damages is of itself sufficient to punish.

What was done in Adams v Kennedy, I submit, is to say, “We all know the State is going to pay this. They are the people who have a capacity to bring these police officers in line. We will mulct the State.” And that is unprincipled, for the reasons that I have given.

GLEESON CJ: Is it right to say that in an award of damages there are elements that if you express them in terms of sentencing principles would be called both particular deterrence and general deterrence?

MR MACONACHIE: That, I think, is a reasonable approach, your Honour. All of the cases, including cases in this Court, say that before you can award exemplary damages you have to consider whether or not the particular individual has been sufficiently dealt with so as to not require punishment. If you come to the conclusion, I would submit, that the particular elements of deterrence have been met by an award of damages of $10,000 and $20,000 equals $30,000 for a policeman but you still want to make an example of him for the rest of the world, as it were, any additional sum would have to be modest in the extreme because even though it might be a general deterrent he still has to pay it. That is hypothetical in the construct of this Act, but that is what the law requires: determine his liability.

We do say that where you have $10,000 and $20,000 for general and aggravated damages that satisfies both the particular and the general deterrence considerations, bearing in mind, your Honour, that general deterrence has an awful lot of critics, including East’s Pleas of the Crown, where a man was hanged for stealing a pocket watch whilst in a crowd watching a man being hanged for stealing a pocket watch.

KIRBY J: Was Justice Priestley’s approach to the global award influential? Is that the explanation of why Justice Basten took that approach in this case?

MR MACONACHIE: That seems to be so, your Honour. He says as much, I think. After referring to Adams v Kennedy, page 459, paragraph 276:

As is apparent from Adams v Kennedy . . . I am conscious of the dangers adverted to by Ipp JA at [157] above: but, in my view, none of them eventuates from the course I would propose in this case.

He approaches it, if I may respectfully say so, in a far more disciplined and - - -

GUMMOW J: What page are you reading from, Mr Maconachie?

MR MACONACHIE: Page 459, your Honour. That is where Justice Basten considers whether he could or should adopt the rolled-up approach, as I have called it, the aggregation approach, and I would respectfully submit that his Honour is much more careful about how he should aggregate the damages than were the judges in Adams v Kennedy but he is influenced by Adams v Kennedy, as was the Chief Justice.

KIRBY J: The advantage of rolling it up is that you are less likely to double count.

MR MACONACHIE: Yes, and, indeed, in Healing (Sales) Pty Limited v Inglis Electrix Pty Limited [1968] HCA 60; (1968) 121 CLR 584, a decision of this Court, a trespass to land, trespass to goods case found its way here and there are some useful observations, if I can, with respect, put it that way. In the judgment of Sir Garfield Barwick and Sir Douglas Menzies at page 596 point 7 on the page – this was an attempt by someone to repossess goods that were on a floor plan or a financing floor plan in a commercial organisation:

The Court of Appeal held that the entries were trespasses but that they gave the respondent nothing beyond a right to nominal damages. The respondent has argued in this Court that the Full Court was correct in deciding that the entries were trespass but was in error, notwithstanding that no damages were proved, in either not giving exemplary damages for trespass or increasing the exemplary damages awarded for the wrongful seizure of the goods.

Can I take you forward then to page 599 where the same two Judges say:

Were the majority of the Court of Appeal correct in their decision that the entries were trespasses, they were, in our respectful opinion, also correct in deciding that there should be no exemplary damages for such trespasses additional to the $3,500 awarded by the learned trial judge. After all the entries and the wrongful seizure of the respondent’s goods were all part of one transaction which the learned trial judge regarded as highly reprehensible and for which he awarded a substantial sum as exemplary damages.

Can I then take you forward to what Justice Kitto said at page 605 at about point 4:

For the foregoing reasons I am of opinion that the Court of Appeal was right in allowing the plaintiff compensatory damages for conversion and trespass to goods. In the action the plaintiff claimed also damages for trespass to land and relied upon the following circumstances.

He there sets them out, and I will not trouble your Honours with that. I want to try and identify the points of principle, if I may. At page 606 at point 8 his Honour says:

Whether each such step be called a trespass pro tanto or a trespass quoad or just a plain trespass, the fact is that it was an unauthorized interference with the plaintiff’s possession, and the plaintiff was entitled to a verdict for some damages in respect of it.

The Court of Appeal ordered that on each of the counts for trespass to land a verdict be entered for the plaintiff for nominal damages, but did not fix an amount. The defendant’s notice of appeal to this Court sought verdicts on these counts for the defendant, but for the reasons indicated I am of opinion that in this respect, as in respect of the quantum of damages for conversion and trespass to goods, the appeal should be dismissed. The plaintiff by a cross appeal sought verdicts for substantial and not merely nominal damages for the trespasses to land, but the short answer is that these trespasses caused no damage to the plaintiff, and as the circumstances of aggravation were fully allowed for in the amount of damages awarded for conversion and trespass to goods the Court of Appeal was right to allow nominal damages only.

What Adams v Kennedy did not do was to focus on the fact that ordinary damages or even aggravated damages for one or other of the incidents would have a double effect upon Constable Pickavance. The fact that he would have to pay any money would be of itself a punishment, but then to impose exemplary damages for the trespass to land on top of that, in our respectful submission, flies in the face of reason. There is double punishment because there was not a disciplined and principle-driven approach to it and there was a failure to stand back and say, “How much is that? What impact does it have on this particular man? Is that sufficient?” That just, in our respectful submission, was not done.

KIRBY J: I take the force of what you say and if you pose it in terms of “Was the primary judge wrong?”, then it has even greater force. Was the Court of Appeal authorised, error being shown, to intervene in the matter?

MR MACONACHIE: Yes.

KIRBY J: But you rather give the game away by accepting Justice Ipp’s approach in the Court of Appeal to the assault matter. It was a very serious infringement on the dignity and privacy and quiet of this woman and, on my view at the moment, her family, so that once you allow that you can get $15,000 general damages, $10,000 aggravated damages and $10,000 exemplary damages for that, then you have accepted that exemplary damages are proper in the case. Everyone gave exemplary damages for the assault. So what you then have to do is be careful that you do not double count when you come to awarding damages for the separate cause of action in trespass.

MR MACONACHIE: And why you will allow it for the trespass.

KIRBY J: The primary judge awarded $20,000 for the exemplary damages for the trespass.

MR MACONACHIE: He was wrong to do so.

KIRBY J: I am still not absolutely clear whether you are – Justice Ipp allowed no exemplary damages for the trespass, so really you are supporting Justice Ipp throughout.

MR MACONACHIE: I am.

KIRBY J: I think if you nail your flag to that mast, at least then there is a clear issue for us to grapple with.

MR MACONACHIE: Done. I do. I would be repeating myself if I were to say anything more, I think.

GUMMOW J: Wait a minute. You have put Plenty v Dillon [1991] HCA 5; 171 CLR 635 on your list, have you not?

MR MACONACHIE: Just allow me to find it, your Honour, if I may.

GUMMOW J: Yes. It is at page 647 that I want to invite your comment, in the judgment of Justice Gaudron and Justice McHugh:

The policy of the law is to protect the possession of property and the privacy and security of its occupier.

Then there is a reference to three old cases, including Entick. I have not looked at Eccles. Morris v Beardmore is a decision of the House of Lords in which Lord Scarman talks about the protection of the privacy of the home. Cannot that way of looking at it encompass not only the person who in the eyes of the law has the right to exclusive possession but those who occupy as family members of that head of the family?

MR MACONACHIE: I would submit not, your Honour, for two reasons. I have already mentioned them but I will put them again in this context. The first is that the distinction between trespass and case is directness and indirectness and that which is charged against Constable Pickavance in respect of the trespass in this case, because there is no conscious wrongdoing, there is no finding of conscious wrongdoing or intent, it is in that circumstance that the Chief Justice embraced - for the reasons I have given by Justice Basten - says that it is sufficient if there is an interference with the personal integrity – they are not his words but this is the effect of it, in my submission – there is an interference with the personal integrity of an occupant, be it a family member or a guest. That is not a direct interference with the rights of the individual who occupies the premises.

GUMMOW J: I am not so sure about that. I understand what you say about guests, but once you get into the realm of occupiers, though, it might be different.

MR MACONACHIE: Indeed, but the second reason that I advance - - -

GUMMOW J: And occupiers normally would be family members or persons equivalent thereto.

MR MACONACHIE: No, your Honour. The occupier is the person who controls. It is not the person who resides. It is the person who controls.

GUMMOW J: What I am inviting for your consideration is, trespass protects the right to exclusive possession and the right to exclusive possession may have been relaxed insofar as to permit what lay people would call an occupier is a family member.

MR MACONACHIE: I would submit that that could only lead to - - -

GUMMOW J: And it is the interests of the conglomerate, in the privacy of the home, as Lord Scarman put it, that is being protected. Now, I may be right or wrong but that is one way into this problem which no one is giving us much assistance in dealing with at the moment.

MR MACONACHIE: I am disappointed, if that is the case. The answers that I give to you are effectively three-fold. There is the distinction between direct and indirect harm that distinguishes trespass from case and trespass therefore must have a narrow focus on the nature of the harm and what is being complained of here is an indirect consequence to Mrs Ibbett. Secondly, if you want to expand, as it were, the protection that the action of trespass will give to occupiers that will be informed by the occupier construct that the general law applies when someone is injured on premises and that is the person who controls the premises.

Thirdly, we say that the rights of both Mrs Ibbett and Mr Warren Ibbett are protected by those personal actions which are intended to protect the dignity and the personal integrity of the individual and therefore the trespassory count should not be permitted to expand beyond its true and historical purpose.

KIRBY J: That may or may not be so but in his book, J. Penner, The idea of property in law, the author describes what he says is:

The right to property permits the owner not only to make solitary use of his property, by excluding all others, but also permits him to make a social use of his property, by selectively excluding others, which is to say by selectively allowing some to enter. The exclusivity that attends the ownership of property is variable by the owner.

He goes on to say that it is normally by licensing others to be in and use his property –

He then goes on to say:

The licensing transfer, on the other hand, is an expression of the right of exclusive use, in which the use of others is treated as one’s own social use of property. The right to license is therefore conceptually a part of the right of exclusive use.

So all of that seems to be confirming what I see as the aspect of the proprietor’s right which is the right to have other persons and certainly the right of the proprietor’s family in the castle with the proprietor.

MR MACONACHIE: Yes, but - - -

KIRBY J: You will have to do a bit more research, I am afraid, on this. This is not a matter to just be passed over lightly. It is quite an important question.

MR MACONACHIE: Well, I hope I have not just passed over it lightly, your Honour. We have looked long and hard for ways of assisting.

KIRBY J: Mr Penner’s book is impressive because he begins the book with the immortal words, “Property is a bore”, but he has devoted a whole book to the idea of property, and it is published by the Clarendon Press, which only ever publishes very notable authors.

MR MACONACHIE: Quite. Well, there is a tome on possession by Pollack, I think, which I had looked at. I could not get any assistance from that, your Honour. I do hope that you do not think we have just treated this as something to be passed over lightly; we have not. The answers that I had given to the propositions advanced to me are those upon which we stand. They are my submissions.

GLEESON CJ: Thank you, Mr Maconachie. Yes, Mr Garnsey.

MR GARNSEY: If your Honour pleases. Your Honours, if I might address first my friend’s first point. Your Honour, the closest case we could find in Australia in relation to the guest interest principle was Pollack v Volpato [1973] 1 NSWLR 653, a decision of the New South Wales Court of Appeal. That was a case where a hairdresser tenant was trespassed against by the landlord who wanted to recover the premises and took an axe to the door of the premises while the hairdresser tenant had clients inside.

In our outline of submissions we make the point that if Justice Ipp be correct one could get aggravated or even exemplary damages for cutting down the door, the manner of the trespass, but one could not get aggravated or exemplary damages if the axe happened to slip and maimed or killed a client of the hairdresser waiting in the premises. I do not really have to take your Honours to that case in terms of reading passages in it.

GUMMOW J: It does make the point though that we are not talking about the owner; we are talking about the person with the right to exclusive possession.

MR GARNSEY: Indeed.

GUMMOW J: It is not a question of who is on the title; it is a question of who has the right of exclusive possession.

MR GARNSEY: No, it makes that point very acutely in the landlord and tenant context. But, your Honour, the Supreme Court of Appeals of, I think, North Carolina has considered incursions against the family in this context and there are two cases noted in American jurisprudence. If I could hand to your Honour nine copies of the photocopies just to indicate where they are noted in relation to what principles and then take your Honour to those two cases as being of assistance - - -

KIRBY J: At some stage I would be helped if you would state what the principle is. Cases illustrate principles, but we have to get what you say is the principle.

MR GARNSEY: I will state that now, if your Honour pleases.

GUMMOW J: Let us look at American jurisprudence first. Just hand it up. What do you want us to read?

MR GARNSEY: I would like to ask your Honours to turn to page 93 and under paragraph 123 “Aggravation of damages”. Though this is under a heading of “Aggravation”, when one looks at the cases they deal with punitive damages:

Circumstances accompanying and giving character to an act of trespass may always be shown in aggravation of damages, as, for example, that personal wrongs were committed during a trespass to realty, that a building has been destroyed wantonly and maliciously, that a tenant has been injured unnecessarily in being ejected from premises, that a pistol was discharged with gross negligence and culpable carelessness, or that an officer seized, under process, property which he knew to be exempt. It is in those cases where the trespass is aggravated by circumstances of gross recklessness and deliberate disregard of the victim’s right that it is said that mental anguish is reasonably calculated or expected to result to the victim.

Your Honour, I have also annexed copies of pages 110 on, paragraphs 148 to 152, under a heading “Punitive or Exemplary Damages” but they do not, apart from general statements, refer to any cases of particular assistance, whereas - - -

KIRBY J: I suppose you would say that if an injury to a tenant is within the range of compensation which is for aggravated compensatory damage, that by principle the damage to a member of the family is included if the same is part of the common law of Australia.

MR GARNSEY: Yes, your Honour.

KIRBY J: That then means, does it, that we take that over into punitive damage as well?

MR GARNSEY: Yes, your Honour. The cases that I am about to take your Honours to do consider punitive damages, even though they are noted under the heading of “Aggravated damages”. The two cases are May v Western Union and Brame v Clark. They are noted in note 31 on page 93 under paragraph 123. Could I hand your Honour nine copies of Brame v Clark. I should preface this with saying this is a 1908 case so - - -

GUMMOW J: They were better then.

MR GARNSEY: The rationale, we say, is applicable here and now. The precise expression of views is perhaps not what would be considered entirely appropriate in this day and age, if your Honour pleases. Looking at Brame v Clark, your Honour, in the second column on page 418 at the top there is the complaint set out which gives the facts:

the defendant . . . did unlawfully and forcibly, wickedly, and maliciously enter upon a certain lot or parcel of land, then in the possession and occupancy as a residence of plaintiff, with the unlawful, malicious, lascivious, and wicked intent and purpose to seduce, debauch, and carnally know one Lovetta Brame, the wife of plaintiff - - -

GLEESON CJ: You mean that would nowadays be expressed more briefly.

MR GARNSEY: I beg your pardon?

GLEESON CJ: It does not matter.

MR GARNSEY: I am sorry, your Honour. Your Honour, though the judgment is delivered by a single justice, it appears that it is a judgment of a Court of Appeal, the plural pronoun appears. On the first column of page 418, the principles are noted and then about 4 centimetres from the bottom:

The defendant argued the case upon the theory that two causes of action are stated – one for trespass on realty; the other for injury, etc., inflicted upon the wife. His learned counsel strongly contends that the conduct of the defendant was not an actionable wrong to the plaintiff. However this may be, and without intimating any opinion upon it, we do not so construe the complaint. The plaintiff alleges a malicious, unlawful, and forcible trespass, setting out that it was made –

et cetera. Then on page 419 there is reference made to other authority. In the first column quoting from the case of Duncan v Stalcup:

“In looking into the books we find the rule in this action to be that they jury are not restricted in their assessment of damages to the amount of the mere pecuniary loss sustained by the plaintiff, but may award damages in respect to the malicious conduct of the defendant, and the degree of insult with which the trespass was committed.

Then at the bottom of that column, after reference to further authority, about 4 centimetres from the bottom, the court says:

In discussing the question whether for injuries sustained by a plaintiff in respect to his marital rights his action was for trespass or case, Mr. Street says: “Clearly we are here confronted with a class of wrongs which historically have their roots in the law of trespass, but which, nevertheless, in maturity lie altogether beyond the field of trespass, and belong to that body of legal injuries in which harm is conceived as being done, not to persons or property, but to rights incident to them.”

At the top of the second column of 419:

It is suggested that, while it is true that exemplary damages may be recovered for malicious - - -

GUMMOW J: Justice Heydon and I think this may be an American edition of the English text by Street.

MR GARNSEY: Yes.

GUMMOW J: Upon foundations of legal liability.

MR GARNSEY: If your Honour pleases, I have not had the opportunity to check that particular edition. The court then continues at the top of page 419:

It is suggested that, while it is true that exemplary damages may be recovered for malicious trespass upon property and for insulting language to the owner, the wife alone can sue for damages sustained by her on account of indecent and insulting language and conduct. For the purpose of supporting this view the recent changes made by the Constitution and statutes in respect to the property and personal rights of married women are relied upon. We cannot think that because the property rights of the wife have been enlarged, and her right to sue alone for injuries to her person and property are conferred, the right and duty of the husband to be the head of the family, to protect the honor and virtue of this wife, or to recover for injuries sustained by interference with his marital rights have been destroyed. It is true that, as held by this court, while he may be reduced to a mere steward or overseer of his wife’s property, he is no less her husband, with all of the rights and - - -

GUMMOW J: It is the sentence in the middle of the page:

The law would but mock him if, when his home is invaded, his wife insulted, and her virtue assaulted, it gave him, for such injuries, but a penny - - -

MR GARNSEY: Yes, and we respectfully submit that is entirely consistent with - - -

GUMMOW J: Yes, but it comes back to this notion that Street is talking about of incident – rights incident to the possession.

MR GARNSEY: Yes. Your Honour, Justice Basten agreed with the Chief Justice in this respect and after reviewing the authorities concerning trespass to land and exemplary damages, his Honour set out a number of principles that he distilled from the authorities. They are set out at page 439, line 25, over to 440 re the whole of the page. His Honour says at 440, line 23, in discussing conscious wrongdoing in relation to exemplary damages, it:

does not require consciousness of each of the elements of a crime or tort, nor does disregard of a person’s “rights” require identification of a particular legal right.

Now, Chief Justice Spigelman when making the statement with which Justice Ipp disagreed that an occupier had a right to have his guests unmolested was, as we have put in our submissions, obviously not talking about a legal right but an incident of the rights of an occupier of property. The principle that I think your Honour Justice Gummow – the principle, at any rate, for which we contend is much as the Chief Justice stated it, that is, an occupier of property, as an incident of the right to exclusive possession, has a right not to have invitees molested or assaulted or treated in a fashion which causes them injury. That need not be confined to the family context. If your Honour pleases, the rationale behind it is based, as Justice Gummow said, on the rights of occupation, the right to exclusive possession, and one does not have to cut it off at the membership of the family.

KIRBY J: I think that may, on reflection, be right because families today are in considerable variety and people have different guests and people coming, and so long as they are lawfully there that is part of the entitlement of quiet possession of your property.

MR GARNSEY: Yes. Of course, contemporary circumstances have a variety of circumstances, your Honour. When some people are confronted by an adult child at the breakfast table with a partner, the status of invitee quickly changes and one regards them as trespassers.

HEYDON J: Mr Ibbett sued successfully for the wrongs done to him, did he not?

MR GARNSEY: Yes, he did.

HEYDON J: Where is the passage that reveals what damages he got? Is there evidence?

MR GARNSEY: It does not. Mr Kinsella appeared in the case. It was a different case and he got $120,000.

HEYDON J: For torts like trespass to a person?

MR GARNSEY: Yes, $120,000 for trespass to the person, your Honour, and false imprisonment.

HEYDON J: When was that trial?

MR GARNSEY: About November last year.

HEYDON J: After these proceedings?

MR GARNSEY: Yes, after, but, your Honour - - -

HEYDON J: There is a risk of double counting, is there not? Let us say the Chief Justice is correct in paragraph 58, if on one view in these shorts seconds of the torts being committed you take Justice Priestley’s approach and consider everything globally, is there not a risk that in case 1 damages are ordered against a defendant which might get overlapping recovery in case 2?

MR GARNSEY: Your Honour, that is a risk but it did not occur in this case.

HEYDON J: It could have. It could have occurred in case 2.

MR GARNSEY: It could have but it has not.

HEYDON J: How do you know it has not, if we know nothing about the second case?

MR GARNSEY: I am sorry, your Honour. With the greatest respect, your Honours know nothing about the second case, nor should your Honours, with respect. The question is, what appears from the judgments in this case.

HEYDON J: Yes, but if we know nothing about it how can we be sure that there was no overlapping?

MR GARNSEY: But that is not what the overlap, with the greatest respect, is concerned with. The overlap is between the award of aggravated and exemplary damages and, as my friend would have it, vindicatory damages for trespass in this case. In each case there has not been any evidence and the State has not applied to adduce evidence of the subsequent trial or sought your Honours’ leave to present it and nor have they appealed against it.

HEYDON J: Might it not just highlight that there is a question mark over Chief Justice Spigelman’s conclusion as a matter of principle?

MR GARNSEY: No. To make that good I have to go through the judgments because there is so much cross-referencing between the members of the court, it is very difficult to see who circulated the first judgment.

HEYDON J: I sympathise with that point.

MR GARNSEY: Part of Justice Spigelman’s reasoning in relation to exemplary damages for assault and for trespass and in relation to aggravated damages is found right at the end of his Honour’s judgment when his Honour comes to say how much in each category. But tracing it through, one can see there is no double counting.

But before I do that, could I hand to your Honours the other case referred to in American jurisprudence of May v Western Union Telegraph Co. There are nine copies. This was a case where a husband and wife sued - it is a little more complicated – because of the misconduct of employees of a telegraph company who conducted themselves in a reprehensible manner, among other things, invading the home where the wife was and insulting her. I will not read the facts in case they are not expressed concisely enough, but at page 1060 in the first column under heading [1] the facts are set out, across to the top of column two. On page 1061 in paragraph [3] the court says:

The fact that the defendant’s servants did not commit an assault or a battery upon the plaintiffs cannot change the result. They unlawfully trespassed upon their property, and, if their other acts did not, by themselves, constitute an actionable wrong, the jury could at least consider them in aggravation of damages.

Then on 1062, paragraph [4], the first sentence:

The Howland Case also answers another position of the defendant, that the husband of the [female] plaintiff cannot recover for the wrong done to his wife, and in these words –

and that is set out. Then in [5]:

As to punitive damages, the rule is well settled that when the wrong is willful or wanton or done maliciously, or accompanied by acts of oppression, insult, or brutality, exemplary damages may be added by the jury to punish the offender, as an example to others and to vindicate justice. The subject is fully considered in the recent case of Saunders v. Gilbert . . . the facts being substantially like those in this case, and we refer to that decision without further discussion of this exception as to the correctness of the court’s ruling that the jury could in their discretion allow punitive damages.

The case requires a somewhat close reading because both the husband and wife were plaintiffs, but the result is, when one looks at it closely, that the husband could recover, by way of aggravation or punitive damages, for the insult to the wife in his presence. I will not read it to your Honours, but as a matter of convenience I can hand to your Honours nine copies of Saunders v Gilbert, which is the punitive damages case.

KIRBY J: But that fulfils Mr Maconachie’s suggestion that the wife has to bring the action separately for herself.

MR GARNSEY: Well, Brame v Clark was one where the wife did not sue. She was not a plaintiff.

KIRBY J: But I see that the cause of action there apparently in May v Western Union was in trespass; it was not in case.

MR GARNSEY: If your Honour pleases, they are the closest cases we have been able to find readily. Perhaps my computer skills are not as complete as they might be, but I must say, a search of all Australian databases with “trespass” and “guest” or “insult to invitees” or “trespass and invitees” did not throw up any decisions of direct assistance. Your Honours, I have stated the principle for which we contend and I have - - -

KIRBY J: Do I understand that principle to be that the right of the person in possession of property to have quiet possession extends to that person’s invitees?

MR GARNSEY: Yes. Using “right” in the sense of an incident of the right to exclusive possession, not as a self-contained legal right, giving of itself a cause of action.

GUMMOW J: That is the point Street was making, I think, in that passage - - -

MR GARNSEY: Yes, your Honour. With respect, that is obviously what the Chief Justice was saying. He was not saying there is a separate legal right to have your guests unmolested so that you can just sue on that in the abstract as a statement of the complete cause of action.

KIRBY J: So it is part of the proprietor or the possessor’s own right?

MR GARNSEY: Yes. Now, your Honours, we have in the summary of argument in paragraph 10 which has a number of subparagraphs, but in particular paragraphs 10.1 to 10.5 analyse the judgments of the Chief Justice and Justice Basten to rebut the suggestion in my friend’s summary of argument and in his first ground that it is sufficient to found a claim for exemplary damages that there is a right to have guests unmolested. That just seems to be put, following on what Justice Ipp said, as a self-contained cause of action. It is obvious, with respect, that neither the Chief Justice nor Justice Basten was saying that and we have given the analysis there and I will not take your Honours through it.

KIRBY J: What was the error on the part of the primary judge in awarding $10,000, given the instruction of the courts, in many cases, that exemplary damages should be prudently and not excessively awarded?

MR GARNSEY: Your Honour, his Honour the Chief Justice put it on the basis that punishment and deterrence of those concerned - and I will come back to that in relation to my friend’s second submission – when one took the cavalier attitude about re-education demonstrated on the evidence, was insufficient and that in the circumstances there should be an award of $20,000.

Now, to reply fully to your Honour, I would wish to go to the submissions which I would hope to do a little later - having dealt with one matter first – the submissions about the effect of the Law Reform (Vicarious Liability) Act as amended in 2003 because, with respect, we submit that when one looks at that Act it is crystal clear that the State has assumed liability for exemplary damages committed by a member of the police force - - -

KIRBY J: Or for the exemplary damages in respect of the activities of a police constable.

MR GARNSEY: With respect, your Honour, my friend’s jurisprudential excursus into the masters tort, as opposed to responsibility for the acts of the master, is, we would respectfully submit, irrelevant for this reason. Once one has a situation where exemplary damages can be awarded, then there are a number of factors which have nothing to do with the conduct of the particular actor which may be taken into account. They were considered by this Court – well, in a number of cases, but, for instance in Lamb v Cotogno, that is, of punishment and deterrence. The deterrence is quite properly deterrence of the State, a notional third party, according to my friend’s argument, but in control of someone who is a person in the service of the Crown and section 6 of the Law Reform (Vicarious Liability) Act says that expressly.

In those circumstances, it would extraordinary if by passing this legislation without any express provision the State had meant to override its liability vicariously under statute for the full extent of exemplary damages which may be properly awarded in a particular case and there may be none. One may say someone has been punished, as in Gray v Motor Accident Commission. There may be a large amount, as in Adams v Kennedy. When one reads – I am perhaps getting into the second submission – or, first, if one looks at the statute itself, one does not see any indication that the liability of the State is to be limited. There is simply nothing - - -

GUMMOW J: What is the relevant statutory text? Does it actually say?

MR GARNSEY: Yes, it is the Law Reform (Vicarious Liability) Act 1983 as amended in 2003.

KIRBY J: At common law there was no liability of the State vicariously for the acts of a constable because of the theory expressed in Enever in this Court that the constable was an independent commission holder from the Crown and then that was changed by statute. So, in a sense, you have to bring yourself within the statute in order to bring liability home to the State.

MR GARNSEY: That is reinforced by this very Act, section 6, which says:

For the purposes of this Act, a police officer shall be deemed to be a person in the service of the Crown and not a servant of the Crown.

Your Honour, the effect of vicariously liability of the Crown in relation to exemplary damages awarded against police officers was considered by the New South Wales Court of Appeal in State of New South Wales v Bryant. This was a case which on the application for special leave for this case was heard together with it and in respect of which your Honours, Justices Gummow and Kirby, refused special leave on the basis that the decision was not attended with sufficient doubt to warrant the grant of special leave. Could I hand up nine copies of this case, I apologise for it not being on the list.

KIRBY J: This is Bryant, is it - - -

MR GARNSEY: This is Bryant, yes, your Honour.

KIRBY J: - - - which we heard the special leave application at the same time as that in this case?

MR GARNSEY: Yes, it is in the same transcript and at the end of the hearing of both the Court says just what I have said. Your Honours, that case, the judgment of Justice Basten was the principal judgment and was agreed in by Justices Beazley and McColl without comment. The point in that case was whether section 8 was properly construed so as to render the Crown liable for exemplary damages in circumstances where the conduct of police officers would under the general law justify such an award against an individual officer. It was held that it did and Justice Basten’s judgment, if I might say so with respect, is a very clear and well-reasoned judgment.

KIRBY J: I notice that the award of exemplary damages in that case was $50,000. I have to tell you, Mr Garnsey, that when I look at these amounts for exemplary damages and particularly as increased by the Court of Appeal, it does challenge my notion of exemplary damages, but then I look at what the Court of Appeal did in Adams and apparently in this case of Bryant. It seems as though perhaps I have got a bit out of touch with the amounts.

MR GARNSEY: Your Honour, XL Petroleum, a rather ancient case, was I think $150,000. If I may say so, the Chief Justice has commented earlier that this Court is a very youthful Court and, with respect, these days these amounts – if one say this is the result of unjustified conduct by a servant or agent of the Crown with the panoply of the authorities of a police constable behind him and with the special powers given to such persons, with the greatest respect, the figures are very small by comparison. When I was young, your Honour, the best one could get in a lottery was £5,000. Now no one would buy any tickets in a lottery if that was the prize; one has to have millions. If I may say so respectfully, if one looks at what is at stake here, which is the liberty of the subject, with the police not subject to the sanctions of the criminal law or the requirements of the criminal law where the accused must be shown to be guilty beyond a reasonable doubt but operating in the civil sphere and misconducting themselves - - -

KIRBY J: But can I try to explain why I have this reaction, and the points you have made are well taken. It is this, that punishment is in our system of law normally the business of the criminal law and we do not normally deploy the civil law for that purpose. Exemplary damages is an exception and it is in a sense, as many authors have said, an anomaly. But it exists and it is conferred by this Court in Gray and Lamb v Cotogno, but woven through all the cases, including Justice Hutley that was read to us, is the statement that they have to be moderated. Justice Hutley said that back in 1973, that there is no tariff or basis for a tariff but he goes on to say that it should be moderate.

MR GARNSEY: Your Honour, that is, with respect, 33 years ago, first. Secondly, Justice Brennan in XL Petroleum and other members of this Court have frequently said that an award of exemplary damages must cause the recipient to smart or sting. The award in Caltex, which is now not a recent case, was very substantial. One has here the State, on our submissions, and with respect, the awards in question in this case are quite moderate.

GLEESON CJ: Maybe we will have to come back after lunch to that second last statement that you made, when you said “One has here the State” because the essence of the problem is what is the significance of that?

MR GARNSEY: Yes, I did express it a little briefly but I intended to come back to it, if your Honour please.

GLEESON CJ: Very well, then we will adjourn until 2.15 pm.

MR GARNSEY: If your Honour pleases.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17PM:

GLEESON CJ: Yes, Mr Garnsey.

MR GARNSEY: If your Honour pleases, could I finish saying something quickly about the structure of the judgments and double counting; secondly, deal with Adams v Kennedy briefly; and then further deal with the matters about the State that your Honour the Chief Justice mentioned before lunch. Your Honours, in relation to the judgment, could I pass your Honours a note which contains references to the structure of the Chief Justice’s and Justice Basten’s judgments which pull together the references in the submissions, but in a more orderly fashion.

The first point we make prior to that is that there is a distinction, an overlap, between aggravated and exemplary damages and the same facts may justify an award of either or both in a particular case, ,but they are different awards on different bases. I have given references there.

Your Honour Justice Kirby in Gray v Motor Accident Commission gave the principal judgment on damages, including aggravated damages, with which the majority agreed, and passed some remarks about that distinction and overlap in relation to aggravated and exemplary damages, and I have given the references there, if your Honours please. In relation to the judgment itself, the - - -

KIRBY J: Are we to completely ignore the fact that, in addition to the amount recovered for exemplary damages in the present respondent’s verdict, the son also recovered exemplary damages?

MR GARNSEY: Yes, your Honour.

KIRBY J: So that for the one incident there was a very great burden placed on the police officers concerned as punishment?

MR GARNSEY: Well, first, if your Honour pleases, there was no burden placed on the police officers because of the structure of the Law Reform (Vicarious Liability) Act.

KIRBY J: Whose contumelious conduct was it? It was the police officers.

MR GARNSEY: Your Honour, it is the contumelious conduct of the police officers for which the State has accepted complete and unrestricted responsibility.

KIRBY J: Who feels the sting?

MR GARNSEY: The person to feel the sting is - - -

KIRBY J: The Secretary of the Attorney-General’s Department presumably.

MR GARNSEY: Your Honour, with respect, the police officers under the control of the Commissioner and the State controls the lot, so the sting has to apply across the board. But the State has legislated that the officers are to be immune from being stung unless the State decrees otherwise. That does not mean that the State should not be stung because exemplary damages are by reference to the conduct of the wrongdoer admittedly, although my friend made a great deal of that, but there are various factors and one of them is deterrence as well as punishment.

Where one has a master who has said, “My servants are not to be liable, I am to be”, and it is not, as in Lamb v Cotogno, just an insurer who is not a party – and one does not know, the insurer may repudiate liability – here one has an Act which says “I, the master, will take complete responsibility” and there is not a word in any of the statutory provisions, the second reading speeches or the preamble to the amending Act which suggests that any liability is to be curtailed.

KIRBY J: I suppose you can say that when Parliament enacted the law that made the State liable for the torts of policemen it well knew that of their nature some of those torts had in the past given rise to claims for exemplary damages.

MR GARNSEY: Indeed. That is exactly what Justice Basten says in his Honour’s judgment in Bryant’s Case which I was going to take the Court to in due course, if your Honour pleases. I have set out passages where his Honour considers the principles relating to exemplary damages for trespass to land and then aggravated damages for assault, exemplary damages for assault and then the facts and authorities at a passage – this is the bullet point on the top of page 2, where his Honour goes through all the facts relevant to aggravated and exemplary damages in relation to trespass and then an important passage, some of which my friend took the Court to, at 398, 50 to 399, 10 and then his Honour considered aggravated damages for trespass and then exemplary damages for trespass.

Could I take the Court to that just to say what we say his Honour’s reasoning was. At 397, line 50 his Honour the Chief Justice finished considering the trial judge’s judgment and various other factual matters. Then my friend took your Honours to the passage:

The indignity and insult suffered by Mrs Ibbett was significantly affected by the way her guest, indeed her own son resident on the premises, was treated. This is, as I have noted in my discussion of exemplary damages above –

and his Honour here is dealing with aggravated –

is a matter which adds to the damage suffered by way of insult and indignity to the property interest of the owner. This conduct included –

pointing a gun, the strip search, continued shouting.

In addition there was . . .

“intemperate and unprovoked outburst . . .

The reaction by Mrs Ibbett to the evidence of Constable Pickavance and Constable Harman about the irrelevance of the re-education programme . . .

These are factors which entitled his Honour to make an award of aggravated damages in this case.

The list of factors I have identified are not coincident with those to which his Honour referred. They do not include the question of the withdrawal of charges against her son, with which I agree with Basten JA.

That was nothing to do with the re-education matter. It was the fact that subsequently charges against Warren Ibbett were withdrawn. His Honour then said:

In my opinion, the conduct of Constable Pickavance was considerably worse than the conduct of the television crew in TCN Channel Nine Pty Ltd v Anning -

That is at 398, 50. At the top of 399:

In my view his Honour’s award of $20,000, even if in part based on irrelevant considerations, was an appropriate award.

That is for aggravated damages. Then, his Honour continues at 399, line 10, paragraphs 102 and 103 to consider exemplary damages, and he says:

The factors that I have identified above as supporting an award of aggravated damages include the matters which I have earlier referred to as possibly justifying an award of exemplary damages. The issue that arises is whether $30,000 by way of compensatory damages is sufficient . . . I would not have thought it was but for one factor. This is the factor that I have referred to already in the context of the assault referrable only to Constable Pickavance. Although in the case of Constable Harman the re-education programme took longer, on his evidence “about 30 minutes”. In this regard, I separate such “re-education” as is pertinent to illegal entry on premises from “re-education with respect to the deployment of the firearm . . .

It does not appear that the alternative mechanism of ensuring that inappropriate conduct by police officers does not occur was treated with sufficient seriousness. For that reason alone it appears to me that an additional amount by way of deterrence is appropriate.

I stress the word “additional”.

In my opinion a small award of $20,000 as determined by his Honour is an appropriate amount to serve as a deterrent and to mark the disapproval of the Court in this respect.

GLEESON CJ: Deterrent to whom?

MR GARNSEY: A deterrent to masters like the State who fail to control their servants.

GLEESON CJ: Or not just a deterrent to Constable P.

MR GARNSEY: No. It need not be. Lamb v Cotogno makes that quite clear, with respect. The passage in Lamb v Cotogno - may I finish first going through Justice Basten’s judgment, not at length, but one has curious cross-referencing throughout these judgments. In paragraph 3 on page 2 of the note I handed up, we submit that Justice Basten considered the distinction and overlap between aggravated and exemplary damages and did not engage in any double counting. His Honour considered the authorities and principles and I have set out the passage there. Then, as to the facts and conclusion concerning exemplary damages, I have set out the passage there. As to the facts and conclusions of the trial judge concerning exemplary damages for trespass, I have set out the passage there. As to aggravated damages for assault, I have set out the passage.

Can I then go to the last bullet point. Again, at pages 459 to 460 one needs, with respect, to have a close look at what his Honour is saying because his Honour does deal with exemplary damages for assault and trespass together. At 459, line 25, his Honour then says:

As is apparent from Adams v Kennedy, an unlawful arrest by a police officer may well give rise to separate causes of action based on assault, trespass to land, false imprisonment and possibly an unlawful search. In such circumstances it may be appropriate, as the Court ordered in Adams, to make a single award . . . In the present case either approach may be open.

Then his Honour refers to the facts about Constable Pickavance and the handgun and then nothing in paragraph 277 in relation to Constable Harman. Then at page 460, line 8, paragraph 278, his Honour says:

Nevertheless, the aspects of the conduct of Constable Pickavance which are described in detail by the Chief Justice, and warrant an award of aggravated damages in relation to the trespass to land, also support an award of exemplary damages which takes those matters into account.

So that his Honour there is referring back to the Chief Justice’s analysis, not only at the earlier passage about 340, but at 389 to 390. His Honour then says that he would be prepared to give a total of $45,000, and his Honour concludes at paragraph 280.

If your Honours please, we submit that the majority clearly distinguished between aggravated and exemplary damages. It found the facts could justify both, with some additional facts in the case of exemplary damages, and made an award accordingly with different sums. There was no unconscious double counting at all. The reasoning is quite clear when one goes through the judgments.

The other point we seek to make here is that at one stage in the submissions my learned friend seems to suggest that because damages for trespass to land are vindicatory, that somehow or other there is double counting when you have aggravated and then exemplary damages. Now, that is not so, we respectfully submit. We submit that vindicatory damages, which are the traditional damages at large for defamation, are compensatory in their nature, and we set out some references in paragraph 8 of the note stemming from Sir Victor Windeyer’s judgment in Uren v John Fairfax with the passage that says you get damages for the defamation because the defamation has occurred, but they are still compensatory.

They have been analysed in Mr Finn’s book of Essays on Damages in chapter 5 by Mr Tilbury, and could I hand your Honour a copy of that chapter? The passage that we ask your Honours to look at is not very long. It starts off with an examination of vindicatory damages. Sir Victor Windeyer considers a number of other cases and comes to the conclusion that the proper categorisation of those damages is that they are compensatory.

GUMMOW J: Which page is that?

MR GARNSEY: I am sorry, pages 96 to 99, especially at 99.

GUMMOW J: Thank you.

MR GARNSEY: Your Honour, there is also an indirect reference in Coyne v Citizen Finance in the judgment of Sir Anthony Mason and Justice Deane, in particular, at the pages that I have mentioned which uses “vindication” in this sense:

In a case where there is no question of punitive or exemplary damages or of the inflation of damages to the minimum amount necessary for purposes of vindication, defamation damages are confined to what can fairly be regarded as compensation for injury sustained.

Their Honours seemed to talk of vindicatory damages as compensatory, and I have given the passages there. There is not a clear statement. Your Honours, I can hand your Honour a copy of Coyne and I apologise it was not on the list, if your Honour pleases. I have read to your Honour the passage at page 216.

GLEESON CJ: Ordering somebody to pay the photocopying bill in this case would have a fairly heavy punitive effect.

MR GARNSEY: I thought by comparison with some other cases, your Honour, it may still be modest.

KIRBY J: That is the point of a comment.

MR GARNSEY: Your Honour, first as to the references to the re-education issue, it was very much in issue. It arose as a result of a subpoenaed document from the Crown. It was a record of an internal investigation, which is exhibit L, and it is at page 303 of the appeal book. The relevant passage as re-education is at 305, 34 to 38.

KIRBY J: What about the pleadings? Mr Maconachie rather suggested that it was not in issue in the pleadings, personal or direct liability of the State as distinct from vicarious liability under statute.

MR GARNSEY: Can I come to that, if your Honour pleases. We do deal with it in our written outline in considerable detail and I will not attempt to repeat that, but the answer is it was not in issue because the State did not put it in issue. It is as simple as that.

HEYDON J: Paragraph 3 in the statement of claim pleads that the third defendant was vicariously liable for the conduct of the first two.

MR GARNSEY: Yes.

HEYDON J: Where is the allegation that it was directly liable for not training them properly or making sure there was a proper re-education course after the tort?

GUMMOW J: The statement of claim preceded the 2003 amendment, did it not?

MR GARNSEY: Yes, the statement of claim was before the 2003 amendment. When the 2003 amendment came in, the plaintiff amended to add the State and remove the two policemen.

HEYDON J: The State was already a defendant so it cannot have added it.

MR GARNSEY: I am sorry, your Honour. Yes, it continued against the State but removed the two defendants. The State put on an amended notice of grounds of defence on page 8, lines 10 to 17:

In relation to paragraph 3 of the Ordinary Statement of Claim, the third defendant admits that it is vicariously liable for the first and second defendants only for the purpose of s.9B(3) of the Law Reform (Vicarious Liability) Act 1983, as amended and only for the purpose of these proceedings.

HEYDON J: Failure to put in a proper education system is not vicarious liability, it is direct.

MR GARNSEY: Yes, your Honour, but as a factor which may be taken into account in relation to the award of exemplary damages.

HEYDON J: I mean, if the police officers, and maybe one of them was contumacious, as it were, about complying with it, but that is one thing. That is relevant to what that officer did and the State’s vicarious liability for what he did, but how does the failure of the State to put in a satisfactory system of better education months after the torts fit into this pleading?

MR GARNSEY: It is not a matter of putting in a system. It is a matter of dealing with these particular people.

HEYDON J: How does the matter of dealing with these particular people fit into these pleadings?

MR GARNSEY: They fit into it first in the document which was produced on subpoena and became exhibit L in the appeal book at page 305, lines 34 to 38.

HEYDON J: But that is direct – wrong.

MR GARNSEY: But with respect, what it is does is – can I indicate the reasoning, if your Honour pleases, in answer to your Honour Justice Heydon? The cross-examination as to what had occurred in relation to re-education arose because of this document produced by the Crown. That cross-examination showed that the individual police officers had not been re-educated and treated the re-education process with contempt. I am talking about Pickavance.

HEYDON J: That is fine.

MR GARNSEY: But, with respect, once Pickavance treats the re-education process with contempt and the re-education process is shown to be manifestly inadequate, if not a farce, then that is a matter which attaches to Pickavance in terms of an award of exemplary damages in relation to him but that award can be by way of deterrence to third parties, including his employer.

HEYDON J: If Pickavance treats it as a farce then there is nothing wrong with adding to the damages but if New South Wales does not treat it as a farce why should the damages go up?

MR GARNSEY: I beg your Honour’s pardon?

HEYDON J: If New South Wales tries to have a system of coping with this problem, Pickavance treats it as a farce but New South Wales does not, why should the damages be pushed up in relation to New South Wales?

MR GARNSEY: Because the cross-examination shows - - -

HEYDON J: All right, which page?

MR GARNSEY: It begins at page 142 in volume 1, lines 30 to 40 and he says “I didn’t undergo a re-education package”:

Q. You didn’t?

Then it continues at 143 and at lines 20 to 25:

Your question was, “did I receive an education package”. My answer was “no”. If you call five minutes with a Sergeant EDO who said “oh boys, you’d better do better next time” well then - -

Q. Are you saying that’s the extent of the education you were given?
A. You got it.

HIS HONOUR: Q. So the answer is, you did receive re-education?
A. Not a package your Honour. We had about ten minutes, or five minutes in a room together where they said just – this is the way that it should have been done, that’s it. It wouldn’t have gone to five minutes.

Then his Honour at line 45:

Before we start looking at the documents you’ve been asked to look at I did have one question senior constable. You were describing what was undertaken by way of re-education following this incident. You said that you were addressed by I assume a more senior officer?
A. No, he’s the same rank as me your Honour.

Q. The same rank as you. And he said, “this is the way it should have been done”?

KIRBY J: Sorry, Mr Garnsey, what page is this you are reading?

MR GARNSEY: It is 143, your Honour. It begins at 142, lines 30 to 40, 143, lines 15 to 35 and then 45 to the bottom of the page, and across at the top of 144, lines 1 through to 12, and his Honour then at lines 25 to 35 elicited the answers as to what he was told. The answer was at line 29:

I think he said your Honour, “you shouldn’t have rolled the car out and you should have got a search warrant”.

Q. That was it?
A. Yes your Honour.

Harman was cross-examined on the same matter at 221, line 40 through to 222, line 15. He said at 221, line 44:

Q. We had a quick briefing, if that’s what you want to call it, a re-education.

Q. How long did it last?
A. I don’t recall, half an hour.

Q. Was Pickavance with you at the time?
A. No.

Q. You had it separately. Who gave you a briefing on the matter?

A. It was either a senior sergeant or an inspector, I don’t recall who it was exactly.

Q. It was back in Newcastle, was it?
A. Yes.

Q. What, about a half hour briefing?
A. Something like that, yes, it wasn’t excessive.

Q. What were you told?
A. I don’t recall to be honest.

Q. Did you take any notice of the briefing?
A. Probably at the time, yes.

Q. Did it change the way you conduct yourself as a police officer?
A I don’t think I can conduct myself poorly at any time.

GLEESON CJ: Would it have been relevant for somebody to ask Constable Pickavance what his salary was?

MR GARNSEY: It would have been an admissible question, yes, your Honour.

GLEESON CJ: How did the awards of exemplary damages in relation to Constable Pickavance compare with his annual salary, the total amounts awarded in the case of Mr Ibbett and in the case of - - -

MR GARNSEY: I do not know, your Honour, but - - -

GLEESON CJ: Would it be relevant to know that?

MR GARNSEY: Your Honour, first, the Crown did not adduce the evidence; but secondly, evidence as to the means of persons liable for exemplary damages is relevant and admissible. In the summary of argument I have given some references to Rookes v Barnard, to Pollack v Volpato and to Mr Justice Brennan in XL Petroleum. But, your Honour, the means are the means of the defendant, if your Honour please. Your Honour asks me would it have been relevant to know. The answer is it is a question that would have been admitted, but the means are the means of the defendant.

HEYDON J: What is it relevant to then, if this constable is not the defendant?

MR GARNSEY: Well, it is only relevant if my friend’s argument gets up here, if your Honour pleases. It is not relevant - - -

HEYDON J: So you say it is not relevant because you oppose that argument getting up?

MR GARNSEY: Yes, but if one looked at it at trial, it is obviously a question that would be allowed.

GLEESON CJ: Well, as Mr Maconachie pointed out, a lot of these issues need to be clarified if you are dealing with trial by jury, because judges have to tell juries what sorts of things they may or may not take into account and how they may take it into account. Would it be appropriate for a judge to tell a jury that in assessing an amount of exemplary damages in a case like this they might care to reflect on what the annual salary of a senior constable of police is?

MR GARNSEY: That would be a matter for argument at trial. We, of course, would have opposed that because of our construction of the Law Reform (Vicarious Liability) Act to which I am going to go in a minute, if your Honour pleases. Before that Act came into force, if the policemen were parties individually, on the balance of authority one would probably have to say, yes, that is a matter as to which the jury should be directed as well as the means of the State, being the master.

Could I just add one reference without taking your Honours to it in relation to the re-education matter. Mrs Ibbett’s evidence in reply was adduced at page 234, lines 5 to 35. In terms of the matter being in issue at the trial, it was in issue, if your Honour pleases. It was a matter that was relied upon by the trial judge as to which there were presumably submissions. Unfortunately, the transcript in the appeal book does not reproduce the transcript of submissions. So far as the issues being raised, they were properly raised.

Now, the legal issues were not raised and they were not raised because of the Crown. It was, in view of the Law Reform (Vicarious Liability) Act, the obligation of the Crown to raise them. We have made detailed submissions on these matters under ground 3 in paragraphs 18 and following in our summary of argument. Can I go first to the Law Reform (Vicarious Liability) Act to support that proposition. The scheme of the Act to which reference has been made is in relation to the police, is that in relation to a police tort claim one is not allowed to sue anyone but the Crown unless the Crown elects otherwise. A police tort claim is defined very widely in section 9B(1) as:

a claim for damages for a tort allegedly committed by a police officer (the police officer concerned) in the performance or purported performance of the officer’s functions (including an independent function) as a police officer, whether or not committed jointly or severally with any other person.

(2) Except as provided by this Part, a person may not in any legal proceedings make a police tort claim against the police officer concerned, but may instead make the claim against the Crown.

(3) A person who makes a police tort claim against the Crown in any legal proceedings may join the police officer concerned as a party to the proceedings only if the Crown denies that it would be vicariously liable for the alleged tort if it were established that the police officer concerned had committed the tort.

HEYDON J: Is that what you mean by the election possibility?

MR GARNSEY: Yes, if your Honour pleases. When one looks at the second reading speeches in both the Legislative Assembly and the Legislative Council, they end up with votes of thanks to the president of the police union and officers of the police union for their assistance in framing this legislation which is expressed to be carrying forward the great reforms which had already been enacted in the Civil Liability Act and the Civil Liability Amendment (Personal Responsibility) Act in New South Wales. The result of them – and I do not really need to take your Honour to the rest of the Act – is to say the State, unless it elects otherwise, will be liable and be the only person liable for police tort claims which are claims allegedly committed by police officers, including claims in the purported performance of the officer’s functions, including an independent function, and 9A is headed as “Part extends to former police officers”:

A reference in this Part to a claim against a police officer in respect of a tort or alleged tort includes a reference to a claim against a person who was a police officer at the time of the tort or alleged tort, but who has ceased to be a police officer since that time.

I am going backwards and I apologise for this, but section 9 as to when torts are committed by police officers provides:

In this Part, a tort is committed, or allegedly committed, by a police officer if the tort is commented, or allegedly committed, by a person who was a police officer at the time of the tort or alleged tort (whether or not acting in a personal or official capacity).

Now, again, as I think I have said twice already, there is not a word in this Act limiting the vicarious liability of the Crown in relation to damages of any kind, nor in the long title to the amending Act, nor in the explanatory note to the bill, nor in the second reading speeches.

GLEESON CJ: How does this Act operate in the case where the alleged tort would also be a crime, like a policeman punching somebody on the nose?

MR GARNSEY: Well, your Honour, it would operate unless the State elected otherwise. Maybe if the policeman is charged, in the unlikely event, then the civil action would be deferred.

GLEESON CJ: What the second reading speech appears to propose is immunity from civil liability for conduct in performance or purported performance of a police officer’s duties leaving as the sanction the criminal law and what I might call the police disciplinary system, or the police complaints system.

MR GARNSEY: If that is a - - -

KIRBY J: Plus the 9E(c) exceptional joinder of the police officer to the proceedings. That is apparently some exceptional fallback that the Crown has.

MR GARNSEY: Yes, your Honour.

KIRBY J: Presumably there are industrial relations reasons why that is not often exercised.

MR GARNSEY: Indeed. We are unaware of any instance where the Crown has permitted the plaintiff to join a police officer.

GLEESON CJ: But the Minister concludes his speech by saying:

From now on, vexatious complainants will not be able to sue you - - -

MR GARNSEY: Yes.

GLEESON CJ: He would have conveyed an accurate understanding of the bill if he had deleted the word “vexatious” from that sentence.

MR GARNSEY: Indeed. Your Honour, it depends on one’s point of view, I suppose, because some persons may consider that anyone who says a police officer is vexatious whether the claim is well based or not.

HEYDON J: On the first page of that speech Mr Watkins says:

As plaintiffs’ rights of recovery are not affected by the bill –

Is it not part of your argument that actually they were improved by the bill, because whereas before there would be limits to what you would get against an impecunious senior constable, now you do not have to worry about his income any more, you just look at the wealth of the State of New South Wales?

MR GARNSEY: Well, we do make that - - -

HEYDON J: In that case, a plaintiff’s rights of recovery – or perhaps it is an ambiguous expressed, but they have been improved by the bill because they got bigger, the potential recovery is higher.

MR GARNSEY: Indeed, yes. Your Honour, as a matter of analysis, we are grateful for that and we do adopt it. As a matter of practical reality and what happened, of course, the - - -

HEYDON J: Yes, it is against you.

MR GARNSEY: Well, it depends on that – if one assumes that this bill has a structure which abolishes exemplary damages because it confines – rather, while making the State vicariously liable by saying that unless the State consents you cannot sue the individuals, you are then forced to ignore the conduct of the individuals for the purposes of exemplary damages.

HEYDON J: I do not think anyone is saying that. All they are saying is you imagine the way a former action would have been run and then say whatever happens the guilty police officers will not be liable, the State will pick up the tab for their liability. You do not take into account the fact that the State is much wealthier, nor do you make matters worse for plaintiffs by, as it were, mentally wiping out the unconscionable aspects of the police officer’s behaviour. Does not that part of the second reading speech tend to support that construction?

MR GARNSEY: Your Honour, it is said in the beginning of the second paragraph:

The bill strikes the necessary balance. It protects police from personal legal claims, while still ensuring officers who have engaged in serious and wilful misconduct can be held accountable.

That is said to be because the State does not want police officers to worry about whether their houses are at risk or other assets are at risk.

KIRBY J: Can you tell me historically did the Enever rule apply in New South Wales until this legislation?

MR GARNSEY: Your Honour, I am a relative newcomer to this area of the law.

GLEESON CJ: I think the question is whether before this legislation the Crown used to be made vicariously responsible for the torts of police officers.

MR GARNSEY: Yes, your Honour. Adams v Kennedy is an example of that. As I understand it, one always said the police officers and the State.

GLEESON CJ: Is there a Nominal Defendant?

MR GARNSEY: No, your Honour.

GLEESON CJ: Was not Mr Haines? How was he the defendant in Lippl v Haines?

MR GARNSEY: I do not know, your Honour.

KIRBY J: Is that under the Claims against the Government and Crown Suits Act?

MR GARNSEY: It may well have been, your Honour.

GLEESON CJ: Yes, that was the Crown being made vicariously liable for something.

KIRBY J: How did they overcome the principle in Enever that a constable had an independent commission and his or her exercise of constabulary discretion was such that it was incompatible with the very notion of vicarious liability? Was there earlier legislation?

MR GARNSEY: Your Honour, all I can say is that there may have been, I simply do not know, I am not familiar enough - - -

KIRBY J: In the Australian Law Reform Commission back in 1975, we drew this area of the law to notice in the case of the Commonwealth Police.

MR GARNSEY: Your Honour, I am indebted to Mr Kinsella. He perhaps points out the obvious that the more general provisions of the Law Reform (Vicarious Liability) Act 1983 as it stood before the amendment by inserting Part 4 covered the policeman. If your Honour looks, I think that may appear from the statement of claim.

GUMMOW J: Section 6 of the 1983 Acts says:

a police officer shall be deemed to be a person in the service of the crown and not a servant of the Crown.

MR GARNSEY: Indeed, your Honour.

KIRBY J: That is what cured Enever.

MR GARNSEY: Yes.

GUMMOW J: Mr Maconachie explained that to us this morning.

MR GARNSEY: I think I mentioned it in response to a question from Mr Justice Kirby earlier, if your Honour pleases.

GLEESON CJ: That is why Mr Haines used to have the dubious distinction of lending his name to all these cases about police misconduct.

GUMMOW J: Then what came after the 1983 Act was the Crown Proceedings Act (NSW), did it not, in the late 1980s? That is why it is the State of New South Wales, not the Crown, not the Nominal Defendant, but the State. There are a number of factors at play in these proceedings.

MR GARNSEY: If your Honour pleases, but, with respect, our simple point is that to abolish liability for exemplary damages, vicarious liability of the Crown, in these circumstances, without a word, would be very surprising and when one takes into account the rationale enunciated by this Court in Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at 9, about point 7 to 10 point 2 in a well-known passage, that is the passage that emphasised that:

the effect, of exemplary damages is not wholly punishment and the deterrence which is intended extends beyond the actual wrongdoer and the exact nature of his wrongdoing.

There is a reference made to Uren v John Fairfax and to Luntz and Street’s Principles of the Law of Damages. The Court continues:

It is an aspect of exemplary damages that they serve to assuage any urge for revenge felt by victims and to discourage any temptation to engage in self-help likely to endanger the peace.

Then there are some more remarks as to that. In the next paragraph the Court continues:

So far as the object of deterrence is concerned, not only does it extend beyond the defendant himself to other like-minded persons, but it also extends generally to conduct of the same reprehensible kind. Whilst an award of exemplary damages against a compulsorily insured motorist may have a limited deterrent effect upon him or upon other motorists also compulsorily insured, the deterrent effect is undiminished for those minded to engage in conduct of a similar nature which does not involve the use of a motor vehicle. Moreover, whilst the smart or sting will obviously not be the same if the defendant does not have to pay an award of exemplary damages, it does serve to mark the court’s condemnation of the defendant’s behaviour and its effect is not entirely to be discounted by the existence of compulsory insurance.

Now, that was a single judgment of five Justices of this Court which has not been permitted to be reopened and my friend does not seek to reopen it and, as a matter of logic, once one finds the conduct of police officers is deserving of an award of exemplary damages, it entitles the factors extending beyond those persons to third parties to be taken into account. So to say other servants, other police officers, must be deterred from this conduct by reference to an award of damages which the access can only be obtained from the State is, in our respectful submission, perfectly permissible and in accordance with principle.

GLEESON CJ: Is a judge awarding exemplary damages bound or entitled to take into account that they constitute a windfall gain to the plaintiff, especially a plaintiff who has been awarded aggravated compensatory damages?

MR GARNSEY: Your Honour, as a matter of discretion, yes. I mean, they are often referred to as windfall gains, but this Court has said, and indeed in Gray v Motor Accident Commission held, that where there is other punishment then one may as a matter of discretion decline to award exemplary damages as not being an appropriate case.

KIRBY J: Did Chief Justice Spigelman and Justice Basten expressly state that in calculating their exemplary and aggravated damages they were taking into effect the effect which the compensatory damages had as a deterrent so that they were not double counting?

MR GARNSEY: Well, with respect, vindicatory damages for trespass are not vindictive damages. Vindicatory damages are compensatory, with respect.

KIRBY J: But the case books are full of statements that to some extent the award of damages contributes to marking the displeasure of the law and imposing a burden on a defendant. So that what you have to do with exemplary damages – and this may be one reason why the courts say it should be modest – is you top it up a bit more in order to mark the disapprobation, but the disapprobation is already marked by the award of compensatory damages.

MR GARNSEY: Well, with respect, no. Vindicatory damages for trespass to land mark the infringement of the occupier’s rights. They compensate him for the infringement of his rights and he is entitled to damages at large whether or not there is particular economic loss suffered. But that does not make them, with respect, any less compensatory and, in my respectful submission, it does not make them have the quality of exemplary damages as marking the disapproval of the court. The disapproval of the court or the punishment or the deterrent has nothing to do with vindicating an occupier’s rights, in my respectful submission. The Chief Justice and Justice Basten, when one goes through the structure of their judgments, which I have endeavoured to outline in that note, clearly distinguished between those three matters.

Your Honours, to go back to the conduct of the Crown, when one looks at sections 9B, C, D and E of the Law Reform (Vicarious Liability) Act, that obliges the Crown to take certain action. The Crown here did not at trial say to the trial judge, “You must consider the liability of Pickavance and Harman separately and personally and then consider to what extent, if any, on what grounds, if any, the State should be responsible for that”. That simply was not an issue.

GLEESON CJ: Mr Garnsey, I must say I am finding this conceptually quite difficult, that is, the question of what is the role of exemplary damages against the background of a legislative scheme such as this, but you talk about general deterrence in a context where the legislature has said to the people you want to deter, “No one can sue you. You are never going to be sued for tort for your conduct in the course of your duties as a police officer. We want you to know that and we want you to feel secure by reason of that.” Now, what sort of work of deterrence is going on when, in a case like this, an award of exemplary damages is made? Who is being deterred from what?

MR GARNSEY: Well, if your Honour pleases, one of the members of the Court remarked earlier that it would not be a good career move to - - -

GLEESON CJ: I am not so sure about that.

MR GARNSEY: - - - be responsible for a large - - -

GLEESON CJ: Large? This is the problem again. I have referred earlier to the question of the income of a police officer. By reference to the amounts of money that are involved in the operation of the police service, these amounts are derisory. By reference to the annual salary of a senior constable of police, if he had to pay them himself, they could be very formidable indeed. If a judge had to instruct a jury about these things, what would the judge tell the jury? I think it is a very difficult question.

MR GARNSEY: Yes, I appreciate what your Honour the Chief Justice says.

KIRBY J: What his Honour is saying are the questions I asked in Cotogno v Lamb in the slightly different context of getting it out of the fund of the Government Insurance Office and this Court did not agree with that. It just does not gel with the statutory scheme of getting it out of someone else’s pocket which is a very large and well-resourced pocket, but that has been rejected by this Court and no one is seeking to reopen it.

GLEESON CJ: But this statutory scheme is said by the Minister to be there for the purpose of telling policemen they need not worry about the possibility of being sued for tort. That is what he says in black and white and you can understand the policy, “Relax, you are never going to be liable in tort. You might be up before the Police Integrity Commission, you might be in trouble before the criminal justice system, or whatever, but don’t worry about being sued in tort.” If that is that is what Parliament says to police officers for their reassurance, what is the work of deterrence that is being done by award of exemplary damages?

KIRBY J: That is what the green slip says to motorists, “Relax. Don’t worry. The GIO will pay.”

MR GARNSEY: Your Honour, what the statutory scheme says is that the State is vicariously liable for the wrongs of the police officers.

GLEESON CJ: No, it goes further. It says, “You may not sue a policeman”.

MR GARNSEY: Yes, but first it says, “The State is vicariously liable and because I, the State, accept all liability as vicariously liable then you may not sue a policeman unless I tell you you can.”

GLEESON CJ: Now, it is said back in 1983 the State is vicariously liable. Twenty years later it is said the police officer cannot be sued.

MR GARNSEY: But it also said the State is vicariously liable for his wrongs.

GUMMOW J: And it also – the Minister is a bit disingenuous, really. The Minister does not say, “And by the way, we are never going to look to you”. He just refers airily to some exceptions in 9E.

MR GARNSEY: Yes, your Honour, but the second reading speech does say that plaintiffs will be safeguarded. The logic, with respect, of what your Honour the Chief Justice is putting to me can be carried through to say the plaintiff is not entitled to any damages.

GLEESON CJ: No, I am just interested in the concept of exemplary damages in a statutory context in which provisions have been enacted for the assurance or reassurance of the people whom you say will be deterred by the possibility of what?

MR GARNSEY: Your Honour, by the possibility of the State being vicariously liable for similar wrongdoing. The State has prevented its servants being sued and the State is the only one who can control the servants. The deterrence is against the State permitting similar wrongdoing, if your Honour pleases, and that is all the more important, in our respectful submission, where one has misbehaviour by the police.

GLEESON CJ: Then if you are setting out to deter the State, why would you award trivial amounts like this?

MR GARNSEY: Because, across the board, if their servants keep doing it, they are not trivial amounts. It is considered cumulatively.

GLEESON CJ: The costs that were involved in this litigation would outweigh the amounts of these exemplary damages.

MR GARNSEY: That is not our fault, your Honour.

GLEESON CJ: No, I am just putting things into perspective. This Court made what might be thought to be a notably unsuccessful attempt in the context of defamation at one stage concerning Mr Nicholas Carson to try and relate awards of damages to things like the price of houses and so forth. The next time a jury got the opportunity to do so they indicated what they thought of that. This is the age-old problem and that is why I raised the question of what would happen if a judge was directing a jury.

MR GARNSEY: There was a discussion of that in the decision of this Court that I mentioned earlier, Coyne’s Case, in the majority, the judgment of the Chief Justice, Sir Anthony Mason and Mr Justice Deane. It was perhaps inconclusive, it was in the context of a jury verdict but it was whether juries could take into account and that was in a defamation matter - - -

KIRBY J: They referred to the fact that a person who was rendered tetraplegic would recover $100,000 for all the pain and suffering and so on. That is why when I look at the amounts that your client recovered and I think of the miserable way in which people who are injured now in New South Wales recover damages, or do not recover damages and are burdened with costs, it just seems to have got out of proportion.

MR GARNSEY: Your Honour, we will take more.

KIRBY J: I am sorry?

MR GARNSEY: We will take more, with respect.

KIRBY J: No, I am saying if I do what Chief Justice Mason said is to be done in Coyne and look at personal injuries awards and compare what your client recovered here, there seems to be a disproportion between the two.

MR GARNSEY: Your Honour, the question is what is an appropriate punishment and mark of deterrence expressing the opprobrium of the Court.

KIRBY J: What is the amount under New South Wales legislation which is the maximum amount that can be recovered by way of general damages for paraplegia?

MR GARNSEY: Your Honour, I personally do not know. Those at the Bar table behind me are more skilled.

KIRBY J: We have seen it in various cases, it is miserly. That is what Parliament in New South Wales has said they should recover. Then I look at these damages, it just does not seem to be just. It may be that the answer to that is what the New South Wales Parliament has provided for paraplegics is very unjust and that should not be a burden on people like your client. We have got ourselves into a terrible mess here.

MR GARNSEY: Your Honour, in relation to exemplary damages, one is not concerned with compensation or measuring the same compensation. In relation to defamation and vindicatory damages and also vindicatory damages for trespass, they are compensatory and so there can be a measure. The question of what is appropriate for punishment and deterrence differs in each particular case. From as long ago as XL Petroleum when one had 150,000 against Caltex and one has had Adams v Kennedy and Lee v Kennedy, circumstances alter cases in relation to punitive or exemplary damages. That is really all I can say to your Honour in relation to - - -

GUMMOW J: The question in one level is that New South Wales statute law had not taken this course. Is the common law of Australia - not of New South Wales, I may add - to be modified in some way to give accord to the policy and what, on one view of it, is a different field by the New South Wales legislature at this moment?

MR GARNSEY: Well, we have submitted that it should not be.

GUMMOW J: The answer to me is not self-obviously yes.

MR GARNSEY: Well, we submit the answer is obviously no, if your Honour pleases. We have made that submission in our summary of argument and referred to Kable’s Case and many other cases since Lange’s Case have said that.

HEYDON J: Mr Garnsey, you have covered point one and point three, but you have not quite covered point two, is that correct? Adams.

MR GARNSEY: Well, point two I though was fairly wrapped in what I have been saying, if your Honour pleases.

HEYDON J: Yes.

MR GARNSEY: Focusing on - there is an aspect of point two that I have not covered and that is the juniority of Pickavance is something that should only be taken into account - - -

GUMMOW J: Where does this word “juniority” come from? I know it is in the judgment? Is it in any dictionary, do you know?

MR GARNSEY: I do not know, your Honour.

HEYDON J: It will be one day.

KIRBY J: It comes because you are ever so senior now, Mr Garnsey.

MR GARNSEY: Yes, it is a depressing fact that strikes one, your Honour.

HEYDON J: He is a senior constable, therefore, where do we go from there? He is a junior member of the police service.

MR GARNSEY: Well, my friend is saying he was a relatively junior officer and presumably then entitled to be somewhat irresponsible and so that one takes him as the measure and he is a relatively unimportant person. If you are going to punish and deter him, you do not have to punish and deter him with much.

KIRBY J: But if your client had had a whole bundle of ecstasy tablets or something of that kind on him and the address book which showed his suppliers, the constable would have received the Australian Police Medal.

MR GARNSEY: He is not my client, Mr Warren Ibbett.

KIRBY J: No, but if - - -

MR GARNSEY: The former president of the District Lawn Bowls Association for the upper north coast is my client, if your Honour pleases.

KIRBY J: All right. Well, if your client, the president’s son had been apprehended with a large stash of heroin on him, the constable would have received the Australian Police Medal for having jumped under the door.

MR GARNSEY: Well, firstly, he was not, if your Honour pleases, but, secondly, he may not have if he still pointed a gun at Mrs Ibbett and conducted himself as he did.

KIRBY J: If he had had the gun in his hand directed at the miscreant, the assumed miscreant.

MR GARNSEY: Yes, well, with the greatest of respect, even someone in possession of prohibited substances who is not otherwise doing anything, they are not usually apprehended at gunpoint.

KIRBY J: No, that is true.

MR GARNSEY: Your Honour Justice Heydon in relation to the - as we understand my friend’s submission and he will say no doubt it is not quite as coarse as I represented it, but the answer is really what I have been endeavouring to put, perhaps with greater or less success in relation to the statutory scheme - - -

HEYDON J: Yes, I follow now the way the two points link together, yes, thank you.

MR GARNSEY: If your Honour pleases. Your Honour, there was only one - - -

KIRBY J: My recollection, Mr Garnsey, is that police officers are entitled to present their guns in apprehension of a felon who is seeking to flee, that is to say, somebody who is liable on conviction to imprisonment and all - - -

MR GARNSEY: Your Honour, the evidence was, I understand, that they suspected him of negligent driving. Now, your Honour - - -

KIRBY J: Just as well it was not jaywalking.

MR GARNSEY: That is right.

GLEESON CJ: Is his criminal history in the papers that we have?

MR GARNSEY: It is.

GLEESON CJ: Where do we find that? Just have a look at all these jaywalking offences.

MR GARNSEY: It is in volume 2.

GUMMOW J: Page 253.

MR GARNSEY: I think it is fair to say he does not take a good photograph. But with respect, your Honour, it is a truism that people cannot help their children. One is stuck with them, with respect, and my client, the plaintiff, as the evidence discloses is a very reputable person concerned about her reputation in the neighbourhood, participated in community activities, held in the lawn bowls a relatively high office and - - -

GLEESON CJ: The relevance of it is simply – and I do not know, this may have been thoroughly taken into account in the judgments in New South Wales, but the known propensities of Mr Ibbett would possibly at least partly explain the conduct of the police officers.

MR GARNSEY: Your Honour, I am informed that the evidence was that the police officer said he did not know who Mr Ibbett was when they entered, if your Honour pleases. Mr Kinsella, who appeared at trial, tells me that is the case. I have not read the evidence from that point of view. Your Honour, I only wanted to say something in relation to Kable’s Case, I think otherwise I have dealt as best I can with all the matters that have been raised - I am sorry, in Adams v Kennedy, rather, and Lee v Kennedy the - - -

KIRBY J: This is Adams v Kennedy, is it?

MR GARNSEY: Yes, your Honour.

KIRBY J: In 45 NSWLR.

GUMMOW J: What is the point of this?

MR GARNSEY: I am sorry, your Honour, it is [2000] NSWCA 152; (2000) 49 NSWLR 78. The only point I want to make is this – there are two points. One is that this Court refused special leave to appeal in Adams v Kennedy.

GUMMOW J: That does not mean anything.

MR GARNSEY: Secondly, if your Honour pleases, Justice - - -

GUMMOW J: Unless they said something when they refused it. We do not know.

KIRBY J: Quite clearly right.

MR GARNSEY: In Lee v Kennedy, which was the female partner, Justice Gaudron seemed unimpressed by the fact that, as Mr Donovan said, there were a lot of other cases waiting to be determined and for this appeal to go up would help the police to dispose of them; the female person in that case being stripped naked and held in a cage in the middle of a police station, and Justice Gaudron was a little concerned that there might be a number of those other cases - - -

KIRBY J: The Chief Justice’s reasons on page 16 of the transcript are not a suitable vehicle because the issues had not been ventilated below.

MR GARNSEY: Yes. Well, we say in relation to vicarious liability matters, before I get on to Adams v Kennedy, I have endeavoured in the summary of argument to make that submission, because it is up to the State at trial if it wants separate rulings in respect of separate individuals, to ask the trial judge to do that, and likewise in relation to limiting its vicarious liability, it is up to the State to make those submissions at trial and indeed on appeal, and one can see from the judgments on appeal what the issues considered were and, with the greatest respect to my friend, they do not bear terribly much relationship to what has been agitated before this Court pursuant to the grant of special leave. We have made those submissions in some detail in our summary of argument, if your Honour pleases.

In relation to Adams v Kennedy the criticism in relation to paragraph 36 was that Justice Priestley was broad brush and just considered everything together and this was unsatisfactory. With respect, an analysis of the judgment does not say that. If one looks at page 86, paragraph 32, “Conclusions on causes of action”, there is a reference to for the previous consideration of the trial judge’s findings of fact, likewise at paragraph 34 and likewise at paragraph 36.

When one goes back to paragraph 1 and paragraphs 8 to 14, one sees that Justice Priestley considered in great detail the findings of fact and what the individuals were liable for in relation to which causes of action. So, with respect, the criticisms that there was some sort of mindless and osmotic global consideration are not well based.

KIRBY J: No, I think in fairness to Mr Maconachie, his argument is the same as his argument against you, namely, that in a matter where, as he says, the issue is vicarious liability for the acts of the constables, Justice Priestley was looking at direct liability of the State for bad education, bad supervision, failure to respond properly and so on, and he complains that that is neither what the statute permits, nor is it what the pleading allowed, nor is it what the trial provided. That is the argument. It is either good or bad but it is a common argument for your case.

MR GARNSEY: I have made my submissions by reference to Lamb v Cotogno and deterrence of other parties as to how we justify this case, if your Honour pleases. In relation to Lee v Kennedy which was an unreported decision of the Court of Appeal but I am informed heard at the same time as Adams v Kennedy – I am sorry, the special leave application. The appeal itself in the Court of Appeal is reported in [2000] NSWCA 153, and we did give your Honours that reference, but it is apparent from the quotation in the judgment of Mr Justice Priestley at paragraph 15, quoting an exchange between Mr Donovan, QC and Mr Sheller, that in that case the State was picking up responsibility. If your Honour pleases, that is expressly recorded in that passage.

GLEESON CJ: The difference between this case and Lamb v Cotogno is that the Government Insurance Office of New South Wales never had the responsibility for training or disciplining drivers.

MR GARNSEY: Indeed, your Honour, but, in our respectful submission, that makes it all the more important for the deterrence.

GLEESON CJ: I understand one of your arguments to be that this legislation that we have been looking at has a kind of liberating effect in that it allows the court to emphasise the importance of general deterrence without being inhibited by the possibility that you are going to be imposing an amount by way of exemplary damages that is more than the annual salary of a police officer.

MR GARNSEY: Yes, your Honour, but before the legislation punitive exemplary damages could have been imposed in that amount but, if your Honour pleases, to say it is a liberating effect is being kind with respect to the legislature. It is a liberating effect for the courts.

GLEESON CJ: That is what I meant.

MR GARNSEY: If your Honour pleases.

KIRBY J: Yes, but it is a liberating effect which requires you, as the Chief Justice said at the beginning of this case, to indulge in pretend. You have to pretend that you do not take into account, say, the salary of the police constable against whom you are seeking exemplary damages. I mean, every citizen knows roughly what a police constable makes and the amount recovered in your client’s case against this police constable, which, admittedly, under the statute must be sued against the State and recovered from the State, is calculated by reference to the pretend of the sting it would cause to the police constable.

MR GARNSEY: With respect, one does not have to pretend anything. It is always open to the State to adduce evidence of all economic matters relevant to exemplary damages. I have given references in the summary of argument to those cases.

KIRBY J: Presumably in the first instance you have to establish your entitlement to it.

MR GARNSEY: Yes, but we establish that by establishing we have a police tort claim and the contents of that claim which can only be based on the act of the persons who are expressed in section 6 to be “in the service of the Crown”. In our respectful submission, there is no pretence at all. The State can put chapter and verse before the court if they wish to seek to minimise awards of damages and, in any event, the court has a discretion with the factors which have been well established and in many cases, including those in this Court, in particular those in Lamb v Cotogno, to award nothing, as they did in Gray v Motor Accident Commission.

KIRBY J: Is it the State of New South Wales that is responsible for the training of police officers or is it the Commissioner of Police?

MR GARNSEY: Your Honour, I do not know the precise details, but there is a Minister responsible, the Minister for Police, who is always in the news and the Commissioner is responsible to the Minister, although presumably he has a separate statutory office.

GUMMOW J: We looked at this last year, did we not?

GLEESON CJ: In the case of Allan.

MR GARNSEY: Yes, if your Honour pleases.

GLEESON CJ: Thank you, Mr Garnsey.

MR GARNSEY: In relation to the knowledge of Pickavance, your Honour, the evidence is, as to not knowing Mr Ibbett and the negligent driving, that is found at page 136 of the appeal book, lines 25 to 50.

GLEESON CJ: Thank you. Yes, Mr Maconachie.

MR MACONACHIE: I beg your Honour’s pardon. The evidence-in-chief of Mr Warren Ibbett deals with his criminal history at page 72, point 40 of the appeal book to point 50 and he was cross-examined on the subject.

KIRBY J: This is to go to what issue?

MR MACONACHIE: This goes to the question asked by the Chief Justice: what is his criminal history?

KIRBY J: Yes, but it really is irrelevant, is it not? We are here dealing with the position of a good citizen who apparently has got, as far as I know, no criminal history, but is a worthy citizen of Forster. Why should we be punishing her for her son’s - - -

MR MACONACHIE: I am not suggesting you should be. I am merely providing some information for the Chief Justice that he asked for.

KIRBY J: Do you accept, as was said to us by Mr Garnsey, that the offence for which they were chasing him was negligent driving and that they did not know him? So it was not as if they were chasing a well-known criminal; is that correct?

MR MACONACHIE: No, I do not accept that. It was found by the trial judge that he was chased because he was speeding away, but he was pulled over because he was a known criminal.

GLEESON CJ: I thought I saw some evidence that they were told to look out for him.

MR MACONACHIE: Yes, that is my understanding of it, your Honour. Could I just provide the Chief Justice with those references that he asked for, your Honour? I do not want to take it any further.

GLEESON CJ: Yes, go ahead.

MR MACONACHIE: Page 87, point 15 to 87, point 55; 88, point 25 to 89, point 5; 90, point 20 to page 92 is the cross-examination of Mr Ibbett on the criminal history. Could I go immediately to the point - - -

GLEESON CJ: Was there any suggestion in the evidence or any finding by the judge that the conduct of the police officers was explained either in whole or in part by reference to the known propensities of the person they were pursing? That is what I was interested in.

MR MACONACHIE: No, I do not think so. No, there is no finding to that effect.

GLEESON CJ: In other words, was that the justification that was advanced by Constable Pickavance for pulling his gun?

MR MACONACHIE: No, Constable Pickavance denied he pulled his gun and he was not believed.

GLEESON CJ: There was evidence, as I understand it, of a huge altercation between Mr Ibbett and the police constable that woke the mother and brought her out from the house.

MR MACONACHIE: There is no doubt about that. There was a lot of shouting, screaming and carrying on by both Warren Ibbett and Mr Pickavance and that awoke this lady, in the summer of her life, at 1.42 am and it thence developed from there. Could I take your Honours to what seemed to be of interest to Justice Gummow in the citation from Street in the case Brame v Clark that my learned friend referred to. Could I provide your Honours with yet more photostats, this time of Chapter XVIII of Street. Historical Writings in Law and Jurisprudence, it is volume 5 of that work. T.A. Street, Foundations of Legal Liability, volume I, commencing at page 263 and concluding at page 272. You will find the relevant paragraph extracted in Brame at page 264 and there are nine copies, your Honour.

GLEESON CJ: Thank you.

MR MACONACHIE: It is to be found, your Honours, in a chapter dealing with the interference with domestic relations and, so far as we have been able to tell over the luncheon adjournment, the word “trespass” when used in that citation in Brame deals with trespass to the person and not otherwise. In volume III of Street’s work, Foundations of Legal Liability, which is in volume 7 of Historical Writings in Law and Jurisprudence, the action for trespass is dealt with – and I have not copied this, we did not have time – in Chapter XVII and it is of significance to note what Mr Street has to say at pages 231, point 8 and following. At that point he says, when dealing with the origins of trespass as a remedy for injury to real property – given the time, I will not read it, your Honour.

Can I just give you the references bar one or two? Page 231, point 8, the side note is “Origin of trespass as a remedy for injury to real property”. It continues on to 232 and 233, but it is really at 234, point 8 to 236, point 4 that I would respectfully direct your Honours’ collective attention. There he deals with “trespass violates possession”, and particularly at 235, point 4 he says this:

Trespass will not lie unless the right of possession be somehow violated or invaded.

Now why should this be true? Is this principle grounded in the very nature of this action of trespass, or is it an artificial and accidental rule? Why cannot trespass be maintained against any one who does violent injury to the property of another, without regard to the question whether the one or the other has the legal possession of the property? Why is not the bailee of chattels or the lessee of land liable in trespass where he forcefully damages the chattels of his bailor or commits waste upon the premises of his landlord? The question is one deserving of attention.

The explanation of the rule is to be found, as might be expected, in certain facts of legal history. The action of trespass was in its origin a criminal action, and hence it would not lie for an act which did not constitute a breach of the peace or manifestly tend to a breach of the peace. This was the very ground on which the King’s Bench assumed jurisdiction over the wrong. In the light of this idea it is easy to see how the law arrived at the proposition that only those acts which involve a violation of possessory right are trespasses.

It was comparatively easy to reconcile the law with this conclusion, for the reason that there were other remedies which were available for the commonest injuries done by persons who have lawful possession of the property of others. Thus the writ of waste lay against . . . the bailee who lost or destroyed –

I will not go on, your Honours, given the time.

GUMMOW J: Let me say this to you. Mr Garnsey’s case of May v The Western Union Telegraph is referred to with some approval in footnote 17 of section 56 of one of the leading current American texts, Dobbs on the Law of Torts 2001 volume 1 and Mr Garnsey may also get some encouragement from the Restatement (Second) of Torts published in 1965, section 162 and the further development of section 162 and the appendix volume came out in 1966. The reporter for that, I think, was Professor Prosser.

MR MACONACHIE: Yes.

GUMMOW J: So if anyone wants to say anything to us about that, they had better do it in writing, I suppose.

MR MACONACHIE: Indeed, your Honour.

GUMMOW J: Including what you have just been dealing with Street.

MR MACONACHIE: Could we, please? Your Honour, could I say this about May and the other cases to which my learned friend made reference. They appear in the American jurisprudence work to which he referred under the heading of “Aggravated Damages”. They come at a time in the history of the development of the law of damages when aggravated damages and exemplary damages were not clearly bifurcated as they have been since, if not Rookes v Barnard, certainly since Uren’s Case in Australia and, accordingly, one needs to be very careful about any analysis based on cases with respect to exemplary damages. They are based on cases that do not have that distinction clearly in mind.

GUMMOW J: The Americans also have a tort for emotional distress, do they not?

MR MACONACHIE: Yes, I think so, your Honour.

GUMMOW J: That has to be taken into account as well. But the modern writing in America seems to embrace this notion of “household” which has some resonance with what Justice Kirby was putting to you this morning.

MR MACONACHIE: Indeed, your Honour, and they also embrace the notion of exemplary damages of a kind and variety much wider than our own.

KIRBY J: I think it is consistent with what you were first putting to us, namely that you have to have an anchor in the possessory right. Then the question is: what is the possessory right? Is it only personal to the owner or the person who is officially in possession, legally in possession, or does it encompass that person’s household? That is the issue we have to consider.

MR MACONACHIE: Indeed, your Honour. In answer to that which my learned friend Mr Garnsey put, I merely make the point that Mr Street was referring in the section cited in Brame to trespass to the person, not trespass to land. He deals with trespass to land very differently. Could I say a word or two about XL [1985] HCA 12; (1984-1985) 155 CLR 448 at 452. That is the point to which I want to take your Honours. There are three things I wanted to say.

KIRBY J: Is this relevant to your second point or your third point?

MR MACONACHIE: It is relevant to both and particularly to the comment made by Mr Garnsey, for what it is worth, that $150,000 in exemplary damages was given in that case. First, that was a case where the relevant decision-maker was acting as the company. He was the New South Wales retail manager – that is at 452 - and he gave instructions to the industrial plumber to spike the tanks.

GUMMOW J: And they thought they owned the tanks, did they not?

MR MACONACHIE: He purported to explain his actions on the basis that they were his tanks and they were not fixtures and, secondly, that they were in some way or other potentially dangerous if not spiked. That was not accepted. Secondly, it was a huge corporation and there was evidence of its wealth and income. Thirdly, it was conduct that was plainly profit-driven and the jury were entitled to take into account the fact that what was done was done not only maliciously but with a view to keeping this new construct, XL Petroleum, out of the market for as long as they could – totally different case.

Can I come to my learned friend’s submissions on the Vicarious Liability Act of 1983. He says to abolish the vicarious liability of the Crown without a word in that Act would be very surprising. He said at other times that there is not a word to be found anywhere in the Act to the effect that the liability for vicarious – that there is not a word to be found in the Act limiting the vicarious liability of the Crown, but that begs the question: what vicarious liability is imposed upon the Crown by the Act?

It is adopting the masters tort theory as plainly appears from that which is said by Justice Basten in this case and also what he says in New South Wales v Bryant [2005] NSWCA 393. His Honour in paragraph [6] commences to discuss exemplary damages, then section 8 of the relevant Act is dealt with, as is section 6. He explains in paragraph [10] why the word “tort” in the section picks up and embraces what is said by Justice Fullagar in the Darling Island Case. He deprecates other cases which do not accord with the masters tort theory. In paragraph [13] he speaks of the language of section 9B as being:

the language of Fullagar J in Darling Island Stevedoring and Lighterage (at 57) adopted by the joint judgment in Hollis v Vabu Pty Ltd –

and reference is there given. Where Bryant differed from this case and why Justices Gummow and Kirby refused special leave was because the argument for the State in that case advanced by me on the special leave application on the same day as the special leave application in this case was dealt with was because the State was advancing an argument to the effect that Part 4 of the Act excluded vicarious liability for exemplary damages entirely. In disposing of the special leave application Justice Gummow said that notwithstanding some interesting arguments that were able to be put forward - - -

KIRBY J: “Attractive” was the word we used

MR MACONACHIE: “Attractive” - I am even more flattered, your Honour. Attractive arguments were put forward. It could not be the case that the government would exclude vicarious liability for exemplary damages in the manner in which the State argued for. I do not have that in front of me. I thought I had it, but it must be caught up in other papers somewhere else. So that is the very obverse of the argument that is being put forward by my learned friend; that is, that it unleashes limitlessly - this Act limitlessly provides for exemplary damages vicariously. Neither of those extremes is provided for by the Act, for the reasons given by Justice Basten in Bryant’s Case.

The only other thing I would say about my friend’s dealing with the statute is that he spoke of vicarious liability but never ever came to grips with what was the nature or extent of that vicarious liability.

GLEESON CJ: Thank you, Mr Maconachie.

KIRBY J: Mr Maconachie, you hinted at several times what you were suggesting as I took it to be some form of procedural unfairness, quite apart from the words of the statute, in your client being made to face a claim of direct responsibility for failure to educate, failure to supervise, inadequate, perfunctory, and so on, without really taking us to the pleading and the way the case was presented. Mr Garnsey promised me he would deal with this, and he did not. So if you are going to send in a note, if both of you would refer to whatever you want to say about that, so that we can have a look at whether or not it would be – do you say it would be unfair to the State?

MR MACONACHIE: Absolutely, your Honour, and I can say very briefly, Justice Heydon has pointed out that nowhere in the pleading is there an allegation of direct liability against the State. It arose and arose only this way. After Constable Pickavance gave his evidence and Constable Harman gave his evidence in the trial – the references are in our written document to their evidence, you have been taken to some of it today - and Pickavance in particular said, “Look, it was a five minute walkover. It made no impact on me”, Mrs Ibbett was then called and she said – perhaps not unreasonably – “Well, I was offended when I heard that evidence”.

We accept that that evidence was admissible going to the question of aggravated damages because the focus is upon the impact upon her of the conduct of Pickavance and Harman, that is, she perceived that they were unrepentant, but it has been used by the Chief Justice, and only by the Chief Justice. Justice Basten took the same view as was implicitly expressed in the questions put by Justice Heydon. Only the Chief Justice took it into account in determining whether or not there should be an award for exemplary damages. In fact, he said but for that there would not have been exemplary damages. We say improper.

KIRBY J: Yes, but within the pleading, the State can only act through servants and therefore in a sense there is vicarious liability that is being asserted, namely that of those who performed the PowerPoint, those who performed the instruction, those who do the supervision, those who do the follow-up and the counselling.

MR MACONACHIE: But that does not appear anywhere in the pleading, your Honour. The pleading made a case against the State of the wrongful conduct of two police officers and two police officers only, and at the heel of the hunt without any pleading, without any notice, in comes evidence which is relevant to one issue, aggravated damages, but which is used by the Chief Justice to prop up another issue, exemplary damages, saying that we should have done something about it. It is the grossest procedural unfairness.

GLEESON CJ: I thought you put that in your argument in-chief?

MR MACONACHIE: I did.

HEYDON J: Mr Maconachie, when you put in your written submissions you will put in the orders you want?

MR MACONACHIE: I will, your Honour.

HEYDON J: You will tidy up page 11 of your written submissions?

MR MACONACHIE: I will, your Honours.

GUMMOW J: Does it involve any reassessment?

MR MACONACHIE: No, your Honour, it will not, we would submit.

HEYDON J: Did you say either heads remain or heads go out?

MR MACONACHIE: Heads remain or heads go out. We are interested in the principles. The issue of whether or not it is $5,000 or $10,000 for a particular head, we do not want to bother this Court or indeed the Supreme Court on a remitter if that were decided. It is the principle that is involved that we are principally interested in.

GLEESON CJ: Thank you, Mr Maconachie. We will reserve our decision in this matter and we will adjourn until 9.30 am tomorrow in Canberra and 9.30 am tomorrow in Sydney.

MR MACONACHIE: Could I say this before your Honours adjourn? I am on the first day of a holiday today. I will be out of my chambers until 11 September. Could it be within that week that anything that we put in can be put in?

GLEESON CJ: Yes.

MR MACONACHIE: Thank you, your Honour.

AT 3.58 PM THE MATTER WAS ADJOURNED