CITATION:Northern Territory of Australia v Austral & Ors [2025] NTCA 3
AP5 of 2023 (21508785)
PARTIES:NORTHERN TERRITORY OF AUSTRALIA
v
AUSTRAL, Ethan
AP6 of 2023 (21508784)
NORTHERN TERRITORY OF AUSTRALIA
v
O’SHEA, Leroy
AP7 of 2023 (21510204)
NORTHERN TERRITORY OF AUSTRALIA
v
WEBSTER, Keiran
AP8 of 2023 (21513348)
NORTHERN TERRITORY OF AUSTRALIA
v
BINSARIS, Josiah
TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CIVIL APPEAL from the SUPREME COURT exercising Territory jurisdiction
DELIVERED: 28 March 2025
HEARING DATES: 27 & 28 February 2024
JUDGMENT OF: Grant CJ, Reeves & Burns JJ
CATCHWORDS:
JUDGMENTS AND ORDERS – Damages – Exemplary and punitive damages
Whether error in awarding exemplary damages to each of the respondents – Whether exemplary damages manifestly excessive – Whether error in refusing to award aggravated damages to the respondent Binsaris – Basis of award of exemplary damages contrary to pleadings, evidence and uncontested findings of fact – Unnecessary to consider whether exemplary damages manifestly excessive – No evidence of subjective insult or humiliation on which to award aggravated damages to the respondent Binsaris – Appeal allowed – Cross-appeal dismissed.
Personal Injury (Liabilities and Damages) Act 2003 (NT), s 19 Supreme Court Act 1979 (NT) s 54, s 55 Youth Justice Act 2003 (NT) s 153, s 154, s 157
[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
Northern Territory of Australia v Austral [2025] NTCA 3
Case
[2025] NTCA 3
Decision Date
CaseChat Overview and Summary
The Northern Territory of Australia brought an action against Austral in the Supreme Court of the Northern Territory, concerning the legality of the use of CS gas within a youth detention centre. The dispute centred on whether the use of CS gas in the detention centre was lawful, focusing on the knowledge and beliefs of the individuals involved regarding the lawfulness of such use. The case was appealed to the High Court of Australia, which found the use of CS gas was unlawful and remitted the case back to the Supreme Court for reconsideration of damages.
The primary legal issue before the court was whether the state of mind of the individuals involved in the decision to use CS gas was relevant to determining the lawfulness of its use. Specifically, the court needed to determine whether the lack of knowledge about the lawfulness of the use of CS gas by the individuals involved could affect the legality of the actions taken. Another issue was whether the respondents had correctly submitted that neither Mr. Sizeland nor Mr. Middlebrook had considered the legality of using CS gas within the Centre.
The court examined the submissions made by the respondents and found that they had not correctly submitted that neither Mr. Sizeland nor Mr. Middlebrook had considered the legality of using CS gas within the Centre. The court also considered the evidence provided by Mr. Sizeland, who testified that he was not aware that CS gas was not authorised for use in a youth detention centre at all under any circumstances. The court found that the primary judge’s description of the respondents’ submission on this issue was incorrect, as there was no evidence to support the claim that either Mr. Sizeland or Mr. Middlebrook had failed to consider the legality of using CS gas. The court concluded that the state of mind of the individuals involved was not relevant to determining the lawfulness of the use of CS gas.
The Supreme Court of the Northern Territory, on reconsideration, assessed the appropriate damages for the unlawful use of CS gas within the youth detention centre. The court determined that the appropriate damages were those ordered by the primary judge, which included an order for Austral to pay $1,500,000 in damages to the Northern Territory of Australia. The court also ordered Austral to pay the costs of the appeal to the High Court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
It was also incorrect, with respect, to state that the respondents had submitted that “neither Mr Sizeland, nor Mr Middlebrook, according to their evidence, turned their minds to the question of lawfulness” of the use of CS gas within the Centre. What the respondents actually submitted to the assessing judge in relation to this issue was:(a)“[W]e say …that it was clear that CS gas was not authorised to use in a detention centre. But we’ll also say that to the extent there was any uncertainty about that on the part of, for example, Commissioner Middlebrook, that situation should never have been allowed to occur. It should never have been possible that senior people did not know what their own laws said about the use of CS gas.”(b)“Now we say that there should never have been any room for that kind of misapprehension (as to the lawfulness of the use of CS gas within the Centre). It should not have been understood to be an option open to them to use CS gas…But to the extent there was uncertainty we say that the policies and guidelines with respect to youth detention should have made it clear, you shouldn’t have room for doubt about matters of this kind…” We have been unable to identify any submission by the respondents to either the primary judge or to the assessing judge to the effect that either Commissioner Middlebrook or Mr Sizeland gave evidence that he had failed to turn his mind to the lawfulness of the use of CS gas within the Centre. There was only a hypothesis that no thought had been given to the issue of lawfulness. Accordingly, the assessing judge’s description of the respondents’ submission on that issue was incorrect. It is also instructive in this context to examine what evidence there was in relation to the states of mind of those involved in approving the use of CS gas on 21 August 2014. The primary judge did not make any finding on the issue of the belief of those involved in the use of the CS gas as to the lawfulness of their actions. It was unnecessary to do so because the primary judge found that its use was lawful. The issue did not arise on the hearing of the appeal from the primary judge to this Court or on the appeal from this Court to the High Court. The evidence of AGM Sizeland at trial concerning his understanding of the position regarding the use of CS gas within the Centre on 21 August 2014 was as follows:MS FOLEY: In August 2014 when you were deputy superintendent were you aware that an article used to deploy CS Gas was a prohibited weapon for the purposes of the Weapons Control Act? --- No I did not.MS FOLEY: You say that even though in 2013 you were the security chief of the [Darwin Correctional Centre]? --- Yes.MS FOLEY: And that you were the first IAT commander and had a role in emergency response? --- Yes.MS FOLEY: So you weren’t aware that in August 2014 prison officers had an exemption under the Weapons Control Act to be able to carry prohibited weapons? --- I knew we had exemptions. I wasn’t clearly present with the Act you’re referring to.…MS FOLEY: I suggest to you that in August 2014 you knew that CS Gas was not authorised for use in a youth detention Centre at all under any circumstances? --- No that’s not correct.[29]