PARTIES: ALISHAH, Syed JORDAN, Warrick KIMBELL, Paul Eric HARRIS, Nathan SARGENT, Lee Anthony THOMPSON, Brett DANT, Nishant Allan MAJEWSKI, Ursula Dubiel MILLS, Christopher Joseph SHARP, Benjamin Huw GIBSON, Miranda Kymalee MOONEY, William Hugh LEWANDOWSKY, Rachel Alison Margaret
DELIVERED ON: 1 December 2010 DELIVERED AT: Hobart HEARING DATE: 9 August 2010 JUDGMENT OF: Evans, Blow and Tennent JJ
CATCHWORDS:
Procedure – Discovery and interrogatories – Interrogatories – Upon what matters – Privilege – In general – Penalty privilege – Whether penalty privilege available in relation to a claim for exemplary damages.
Counsel: Appellant: K J Stanton Respondent: S B McElwaine Solicitors: Appellant: FitzGerald and Browne Lawyers Respondent: Shaun McElwaine & Associates
Judgment Number: [2010] TASFC 6 Number of paragraphs: 22
Serial No 6/2010 File No FCA 422/2010
SYED ALISHAH, WARRICK JORDAN, PAUL ERIC KIMBELL, NATHAN HARRIS, LEE ANTHONY SARGENT, BRETT THOMPSON, NISHANT ALLAN DANT, URSULA DUBIEL MAJEWSKI, CHRISTOPHER JOSEPH MILLS, BENJAMIN HUW SHARP, MIRANDA KYMALEE GIBSON, WILLIAM HUGH MOONEY, RACHEL ALISON MARGARET LEWANDOWSKY v GUNNS LIMITED TASMANIAN PULP & FOREST HOLDINGS LTD GUNNS FOREST PRODUCTS PTY LTD
REASONS FOR JUDGMENT FULL COURT
EVANS J BLOW J TENNENT J 1 December 2010
Order of the Court
Appeal dismissed.
Serial No 6/2010 File No 422/2010
SYED ALISHAH, WARRICK JORDAN, PAUL ERIC KIMBELL, NATHAN HARRIS, LEE ANTHONY SARGENT, BRETT THOMPSON, NISHANT ALLAN DANT, URSULA DUBIEL MAJEWSKI, CHRISTOPHER JOSEPH MILLS, BENJAMIN HUW SHARP, MIRANDA KYMALEE GIBSON, WILLIAM HUGH MOONEY, RACHEL ALISON MARGARET LEWANDOWSKY v GUNNS LIMITED TASMANIAN PULP & FOREST HOLDINGS LTD GUNNS FOREST PRODUCTS PTY LTD
REASONS FOR JUDGMENT FULL COURT
EVANS J
1 December 2010
The appellants are the defendants to an action for trespass in which the remedies sought against them by the plaintiffs, the respondents to this appeal, include a claim for exemplary damages. The defendants appeal against a decision that the plaintiffs' claim for exemplary damages does not provide the defendants with an entitlement to object to answer interrogatories delivered by the plaintiffs on the ground of the privilege against self-exposure to a penalty, "penalty privilege".
The plaintiffs occupy and conduct a woodchip processing plant on land at Triabunna. By their amended statement of claim the plaintiffs allege that on 16 December 2008, the defendants trespassed upon the land by entering it without consent and caused the operations of the plant to cease for 6 hours and 40 minutes. The plaintiffs claim:
"(a) damages for trespass;
(b)aggravated and/or exemplary damages for trespass;
(c)an injunction restraining each of the Defendants, as individuals or in combination with any of the other Defendants or with any other person from entering the land or any…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Alishah v Gunns Ltd [2010] TASFC 6
Case
[2010] TASFC 6
Decision Date
CaseChat Overview and Summary
The Full Court of the Supreme Court of Tasmania considered an appeal by Alishah against a decision of a single judge concerning discovery in proceedings against Gunns Ltd. The central dispute revolved around whether Gunns Ltd could claim privilege against answering certain interrogatories, specifically concerning the availability of penalty privilege in the context of a claim for exemplary damages.
The primary legal issue before the Full Court was whether the privilege against self-incrimination, commonly referred to as penalty privilege, extended to protect a party from answering interrogatories that might reveal information relevant to a claim for exemplary damages. This question required the court to consider the nature of exemplary damages and the scope of the penalty privilege in Australian law.
The Full Court held that penalty privilege is not available in relation to a claim for exemplary damages. The court reasoned that exemplary damages are not a penalty in the sense contemplated by the privilege, which is designed to protect individuals from being compelled to incriminate themselves in criminal or quasi-criminal proceedings. Instead, exemplary damages serve a punitive and deterrent purpose, punishing the defendant for egregious conduct and deterring similar behaviour. The court distinguished exemplary damages from penalties imposed by statute, which are directly covered by the privilege. Consequently, Gunns Ltd was not entitled to refuse to answer interrogatories on the grounds of penalty privilege in relation to the claim for exemplary damages.