Alishah v Gunns Ltd

Case [2010] TASFC 6


[2010] TASFC 6

COURT:                  SUPREME COURT OF TASMANIA (FULL COURT)

CITATION:              Alishah v Gunns Ltd [2010] TASFC 6

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

v

GUNNS LIMITED
  TASMANIAN PULP & FOREST HOLDINGS LTD
  GUNNS FOREST PRODUCTS PTY LTD

FILE NO/S:  422/2010
JUDGMENT

APPEALED FROM:                 Gunns Limited v Alishah (No 4) [2010] TASSC 24

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.

Rich v Australian Securities & Investments Commission [2004] HCA 42; (2004) 220 CLR 129, applied.

Aust Dig Procedure [469]

REPRESENTATION:

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

  1. 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".

  1. 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…

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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.

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Background

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