State of South Australia v Treglown - [2012] SASC 47

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
STATE OF SOUTH AUSTRALIA v TREGLOWN
[2012] SASC 47
Judgment of The Honourable Justice Kourakis
30 March 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
DAMAGES - GENERAL PRINCIPLES - EXEMPLARY, PUNITIVE AND AGGRAVATED DAMAGES
Appeal against damages – respondent (plaintiff) awarded aggravated and exemplary damages in relation to positive findings of tortious trespass to chattels by the police – whether Magistrate’s findings supported on the evidence – whether Magistrate’s findings could support award of exemplary damages.
Held – appeal allowed – awards of aggravated and exemplary damages set aside – remit to the Magistrates Court of South Australia for damages to be assessed in accordance with these reasons.

STATE OF SOUTH AUSTRALIA v TREGLOWN
[2012] SASC 47
Magistrates Appeal – Civil:

KOURAKIS J: This is an appeal against a judgment of a magistrate in favour of the respondent, then plaintiff, in relation to an action for trespass to the respondent’s chattels. In particular, the appellant appeals against the Magistrate’s award of exemplary and aggravated damages and takes issue with his factual findings.[1] The Magistrate awarded nominal damages of $25 for the act of trespass but awarded $15,000 in exemplary damages and $7,500 in aggravated damages. The Magistrate did not make any finding of contumelious conduct which could support the award of exemplary damages. The Magistrate failed to take into account several material considerations in making the award of aggravated damages and the award was manifestly excessive. However, there was evidence on which, depending on the assessment of the oral testimony, findings of fact could have been made which justified an award of exemplary damages. For that reason the matter will be remitted to the Magistrates Court for exemplary and aggravated damages to be reassessed. My reasons follow.
[1] The appellant was granted permission during the hearing to file an amended notice of appeal to include the additional appeal grounds asserting error in the award of aggravated damages and findings of fact.
Background
The facts giving rise to the original action can be shortly summarised. The respondent, Detective Superintendent Treglown (Detective Treglown) had been stationed at Christies Beach Police Station during late 2003 and early 2004. As a result of two internal investigations commenced in early 2004, in response to allegations regarding Detective Treglown’s behaviour, Detective Treglown was seconded to a different position and stationed at another police station. Chief Inspector Lough filled Detective Treglown’s position on a temporary basis whilst the investigations were on foot.
In March 2004, Detective Senior Constable Skeffington (Detective Skeffington) and other police officers involved in one of the investigations (operation ATOP) opened and searched a cabinet in the office formerly occupied by Detective Treglown. Before undertaking the search, Superintendent Tank, the officer in charge of the Internal Investigations Branch, sought advice from the Legal Services Branch of South Australia Police (SAPOL) as to whether it could be conducted. Superintendent Tank conveyed the advice that the cabinet could lawfully be searched to Inspector Lock who then passed the information to Detective Skeffington.
Detective Treglown testified that he had bought the cabinet himself at a time when he held another position in SAPOL. He required a more secure cabinet in which to keep sensitive documents connected with that work. He found it easier to purchase a cabinet himself than to run the gauntlet of SAPOL’s procurement procedures. He gave evidence that he continued to use the cabinet, with at least the tacit permission of his superiors in other positions thereafter. Prior to leaving the Christies Beach Police Station he informed Chief Inspector Lough that the cabinet was his and that it contained personal belongings. Detective Treglown told Chief Inspector Lough that no-one was to touch it.
It is the search of the cabinet, and his personal documents which were left in it, to which Detective Treglown objected and which he pleaded gave rise to an action in trespass to his personal property.
The Magistrate’s Findings
The Magistrate was satisfied that the relevant trespass to Detective Treglown’s personal property had occurred. In so finding, the Magistrate accepted that the cabinet was Mr Treglown’s property and that there had been an unauthorised interference and search of its contents. Nominal damages were awarded. Those findings are not challenged by the appellant.
The Magistrate’s reasons set out, albeit briefly, the basis on which awards of aggravated and exemplary damages are founded. In awarding aggravated damages in the sum of $7,500, the Magistrate found that Detective Treglown was “outraged and felt humiliated” when he was informed of the search. The Magistrate also found that the ATOP investigation leading up to, and including the search, was inappropriately conducted in the circumstances and that the search of the cabinet and his property constituted a gross invasion of Detective Treglown’s privacy. The Magistrate accepted that Detective Treglown had suffered significant distress and anger over the incident. The Magistrate found that Detective Treglown’s distress was magnified by the investigating officer’s failure to conduct the police search in his presence in accordance with standard police procedure.
The Magistrate’s factual findings concerning the lead up to the search of the cabinet on which he based his award of exemplary damages were as follows:
Whilst I do not suggest that the Internal Investigation Branch acted with any malice there is little more that can be said in favour of its decision to search the Superintendent’s cabinet without his permission. Superintendent Tank told the court that he obtained advice from Ian Hughes of SAPOL’s Legal Services Branch. That was the extent of his evidence. The Court was not told what information was included in the request for advice or how the request was otherwise framed. The Court was not provided with any detail of the advice except that because it was assumed that the cabinet belonged to SAPOL, the Internal Investigations Brach could force it open.
I was not told whether Superintendent Tank had been advised that the contents of the Superintendent’s floppy discs could be inspected. I do not know what attention was given to the Superintendent’s communication to Chief Inspector Lough or how, on the false assumption that the cabinet had been bailed to the Superintendent, his rights as bailee were considered if at all. In any event, the point of the search was to access the Superintendent’s personal property and it should have been obvious that the Superintendent’s permission was required before this could be legally accomplished. The fact that the Internal Investigation Branch knew of the Superintendent’s communication to Chief Inspector Lough aggravates its apparent disregard of this consideration. On the face of it, the advice to conduct the illegal search was clearly wrong and either recklessly sought or provided.
Further, there was no real attempt to establish a basis for the assumption that the cabinet was SAPOL property. Because the cabinet was housed within the Christies Beach Police Station it might have been initially reasonable to assume that is was SAPOL property but a senior police officer had given instructions that no-one was to touch it. Apparently, no one except the Superintendent possessed a key to open it. The master keys did not work. I do not understand, in those circumstances, why the Superintendent could not have been approached for further information. He had been ordered not to attend Christies Beach without permission and could not easily frustrate the proposed search. Any presumption of ownership of the cabinet was made without recourse to an entirely appropriate and readily available line of enquiry.
In conclusion, the Magistrate found that Detective Treglown’s “experience [could] appropriately be regarded as the consequence of the outrageously reckless and high handed behaviour of SAPOL towards a senior officer who was ultimately absolved of misconduct.”
The Search and its Authorisation
Much was made at trial of the content of a SAPOL Action Message (the action message) issued on 16 March 2004 (Trial exhibit: D1). Detective Senior Sergeant Vincent (Senior Sergeant Vincent) gave evidence that during operation ATOP the officers involved would, at morning meetings, consider the investigation and what actions should be taken and that thereafter he would prepare action messages, assigning actions to individual officers accordingly.
The action message of 16 March 2004 contained the following relevant material:
“ Subject Matter
INFORMATION FROM D/SC SKEFFINGTON THAT THERE IS A LOCKED 3 DRAWER CABINET IN THE O/C SOUTH COASTS OFFICE. TREGLOWN HAS TOLD THE ACTING O/C LOUGH THAT IT CONTAINS HIS PERSONAL ITEMS AND NO ONE IS TO TOUCH IT. DISCUSSED WITH SUPT TANK WHO SOUGHT ADVICE FROM POLICE SOLICITORS. THEY ADVISE A WARRANT IS NOT NEEDED TO SEARCH THE DRAWERS AS IT IS SAPOL PROPERTY. THE DRAWS ARE TO CHECKED TO SEE IF THERE IS ANY ITEMS TO ASSIST THIS INVESTIGATION.
Action Required (Relevant to: SEARCHING)
DRAWERS TO BE CHECKED.
Allocation – Personnel or Location
Issued To: SKEFFINGTON, A Date: 16/03/04 Location: IIB Authority: VINCENT, P (SGT.)…”
Senior Sergeant Vincent testified that he was under the impression from something said by someone during the morning meeting that the cabinet was SAPOL equipment but that it contained personal items.
Detective Skeffington testified that in the morning meeting which led to the issuing of the action message referring to Detective Treglown’s personal items, the investigation team, including Inspector Lock, were present.[2]
[2] Transcript 73.
Superintendent Tank gave evidence that he believed Inspector Lock had asked him whether the cabinet could be opened and searched for the purposes of operation ATOP. Superintendent Tank stated that whilst he thought the answer was yes, he approached Mr Hughes of the SAPOL Legal Services Branch to seek legal advice confirming this. He gave evidence that he orally informed Mr Hughes of the facts of which he was aware. Superintendent Tank could not recall the specific facts he provided to Mr Hughes, but gave evidence that at the time he understood the cabinet to be in Detective Treglown’s office, that it belonged to SAPOL and that it contained documents relevant to the investigation. Mr Hughes advised Superintendent Tank that a search of the locker was lawful. The advice was conveyed by Superintendent Tank back to Inspector Lock.
In cross-examination, Superintendent Tank conceded that he did not verify the information conveyed to him that the cabinet was SAPOL property. He testified that he was not aware that Detective Treglown had informed Chief Inspector Lough that the cabinet and its contents were his personal property, but conceded that the action message, referring to Detective Treglown’s personal items, had been prepared when he sought the legal advice.
In evidence, Detective Skeffington stated that whilst he believed the cabinet may have contained personal items belonging to Detective Treglown, he nonetheless believed it to be SAPOL property. On the basis of the legal advice conveyed to him by Superintendent Tank he believed that it was lawful to search the cabinet. He gave evidence that on the day of the search, Chief Inspector Lough advised him, or at least inferred that the cabinet belonged to Detective Treglown. Upon realising that the cabinet was locked, Detective Skeffington sought and received permission from Superintendent Tank to forcibly open it.
In cross-examination, Detective Skeffington conceded that it may have crossed his mind that the cabinet may have belonged to Detective Treglown after the SAPOL master-keys did not fit. Nonetheless, he remained of the opinion that the cabinet was SAPOL property as there was no evidence, other than the information provided by Chief Inspector Lough, that it belonged to Detective Treglown.
Senior Sergeant Schild, who conducted the search with Detective Skeffington, gave evidence that she had no memory of whether Chief Inspector Lough provided any information as to the ownership, or alleged ownership, of the cabinet.
Chief Inspector Lough did not give evidence.
The Search
A video recording of the search of the cabinet was made at the time and admitted into evidence. The recording shows that it commenced at 12.44pm. Present at the commencement of the video were Detective Skeffington, Senior Sergeant Schild and Chief Inspector Lough. Detective Skeffington began the search by attempting to open the cabinet with a set of keys. The keys did not unlock the cabinet. Following a short pause in the video, for the expressed purpose of locating the correct key, it was re-activated at 12.57pm with Sergeant Doherty now present for the purpose of assisting Detective Skeffington to gain access to the cabinet without a key; Chief Inspector Lough was no longer present.
Detective Skeffington performed the physical search of the cabinet alone. The video record shows him briefly examining the contents of the cabinet drawers and identifying them to the camera as: documents, a police weapon, computer discs and personal papers. At this point a brief perusal of the documents, for the apparent purpose of ascertaining their general content, was undertaken by Detective Skeffington.
The video was paused at 1.02pm for the purpose of seeking instructions as to whether a more detailed search of particular identified items, being recordable CD discs and small computer discs, should be conducted. The video resumed at 1.08pm with Detective Skeffington indicating that Inspector Lock and Superintendent Tank had given a direction to “look at the relevant computer discs and CD discs in relation to anything that may assist with this inquiry…and to thoroughly look through some of the paperwork in the desk.”
The video was paused at 1.10pm to undertake the further, more detailed, search. It was re-activated at 1.51pm at which point Detective Skeffington advised that three recordable CD’s were being seized for further analysis. The cabinet was re-secured and the video concluded.
Detective Skeffington was not asked, and did not testify, about whether he read any of the personal papers kept by Detective Treglown in the cabinet. Importantly, it was never put to Detective Skeffington in cross-examination that he undertook anymore than a brief examination of the personal documents in the cabinet.
Exemplary Damages
An award of exemplary damages requires findings of reprehensible conduct beyond the mere commission of the relevant tortious conduct.[3]
[3] New South Wales v Ibbett (2006) 229 CLR 638, 846 (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ)
In particular, an award of exemplary damages is confined to cases where specific adverse findings can be made against the defendant on the issue of his “knowledge, intention or recklessness”[4] in the commission of the tortious act.   Conduct which is “high-handed, insolent, vindictive or malicious”[5] and conduct involving “conscious wrongdoing in contumelious disregard of another’s rights”[6] may justify such an award.
[4]    New South Wales v Delly (2007) 70 NSWLR 125, [115] (Basten JA).
[5]    Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 129 (Taylor J).
[6]    Whitfield v De Lauret & Co (1920) 29 CLR 71, 77 (Knox CJ).
The function of an award of exemplary damages is to mark the Court’s disapproval of the defendant’s conduct,[7] and to deter and punish, personally and generally, similar conduct.
[7] New South Wales v Delly (2007) 70 NSWLR 125, [115] (Basten JA).
It is nevertheless important to appreciate that exemplary damages are awarded rarely and it is a remedy of last resort. Only where the overall award of general compensatory and aggravated damages is insufficient to achieve the objectives of punishment, deterrence and disapproval will exemplary damages also be awarded. [8]
[8] New South Wales v Ibbett [2005] NSWCA 445, [79] (Spielgman CJ).
As with exemplary damages, an award of aggravated damages can only be sustained on findings about the circumstances and manner of the wrongdoing going beyond the mere commission of the tort in question .[9]
[9]. New South Wales v Ibbett (2006) 229 CLR 638, 846 (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ).
In contrast to exemplary damages however, aggravated damages are compensatory in nature, directed at the injury caused to the plaintiff’s feelings by reason of insult and humiliation.[10] It is where the harm occasioned by the tort was aggravated by the manner in which it was committed that the plaintiff should be compensated accordingly with an award of aggravated damages.[11]
[10] Lamb v Cotogno (1987) 164 CLR 1, 8 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ).
[11] Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118, 149 (Windeyer J).
Analysis
The findings on which the award of exemplary damages rests are:
1.The authorisation given to Detective Skeffington by Superintendent Tank relied on legal advice which was based on the unverified assumption that the cabinet was police property.
2.There was no evidence as to whether Detective Treglown’s assertion of ownership of the cabinet was known or considered by officers of the Internal Investigation Branch.
3.Even if the cabinet were police property, it might have been bailed to Detective Treglown and the purpose of the search was to access the Detective’s personal property. For either or both of those reasons, his permission was required to search the cabinet and therefore the legal advice was “clearly wrong and either recklessly sought or provided.”
4.Detective Skeffington proceeded to search the cabinet even though he had been put on notice of Detective Treglown’s claim to ownership and unreasonably failed to make enquiries to determine the ownership of the cabinet.
In my view none of the findings support the award of exemplary damages. The assumption of police ownership of the cabinet which underpinned the legal advice referred to in the first finding, was, as the Magistrate accepted, a reasonable one in the absence of any evidence that those who sought the legal advice were aware of the claim of ownership Detective Treglown had made to Chief Inspector Lough. The second finding simply records that there was no evidence that those who sought the advice were aware of Detective Treglown’s claim of ownership. The conduct surrounding the request for and provision of the legal advice cannot therefore be described as high handed, malicious or vindictive conduct.
The third finding does not accurately state the purpose of the search. The purpose was to search the cabinet for evidence relating to the internal investigations. That evidence, if it had existed, may or may not have been contained in the personal property belonging to Detective Treglown. In any event that circumstance cannot affect the characterisation of the search of the cabinet. If the cabinet was police property, as the legal advice assumed, it could lawfully be searched, even if it were the case that personal property was kept in it. The treatment of the personal property stored in it might support an award of exemplary or aggravated damages for trespass to that property but it cannot affect the characterisation of the search of the cabinet. Nor could any question of the cabinet being bailed by police to Detective Treglown reasonably arise. An employer who provides office furniture for the use of its employees does not bail that furniture to them, even if they are allowed, within reason, to keep their personal property in it. The finding that the legal advice was clearly wrong cannot therefore be sustained. Nor was there evidence that the advice was recklessly sought because it was not shown that it was unreasonable to proceed on the information in the action sheet. It is impossible to conclude that the legal advice was recklessly provided because the evidence does not disclose anything about the way in which the solicitor in the Legal Services Branch went about clarifying his instructions, considering the question and giving his advice. Even if the legal advice had been recklessly provided, it would not necessarily be a sufficient reason to award exemplary damages against the police for trespass in proceeding in accordance with it. It is for the tort of trespass that the exemplary damages were sought, not for negligent misstatement

Finally, as to the fourth ground on which the award of exemplary damages rested, the only adverse finding made against Detective Skeffington is that he failed to make reasonable enquiries that would have revealed Detective Treglown’s ownership of the cabinet. However, much more than negligence is required to support a finding of reprehensible conduct supporting an award of exemplary damages. Detective Skeffington testified that even after Chief Inspector Lough informed him of Detective Treglown’s claim of ownership over the cabinet he still believed that the cabinet was SAPOL property. The Magistrate did not disbelieve Detective Skeffington nor did the Magistrate make any finding about Detective Skeffington’s belief about ownership at the time of the search. The finding that Detective Skeffington unreasonably failed to make further enquiries falls well short of the intentional reckless, high handed or vindictive behaviour which awards of exemplary damages are calculated to punish and deter.
There are also two errors of omission in the Magistrate’s reasons. First, insofar as the award of exemplary and aggravated damages relate to the search of the cabinet, the Magistrate has failed to take into account the fact that the cabinet was situated in Detective Treglown’s workplace and used for both work and personal purposes. In the absence of an appeal against the finding that trespass was committed in opening the cabinet, it must be accepted that it was not a condition of Detective Treglown’s use of it that it be treated as if it were police property. Nonetheless the fact of its continued use, in part, for police purposes is a reason to decline to make, or at least mitigate, an award of exemplary damages. There is no indication that the Magistrate gave any weight to that consideration. Secondly, the Magistrate has failed to make findings about and give separate consideration to the way in which Detective Skeffington treated Detective Treglown’s personal items. There is no evidence that Detective Skeffington read Detective Treglown’s personal papers other than for the purpose of satisfying himself that they were not relevant to the ATOP investigation. Nor was there any evidence of Detective Treglown’s knowledge of the extent of the search. The failure to have regard to the matters I have mentioned are in themselves errors which require the awards to be set aside.
Finally, the awards of aggravated and exemplary damages are in my view manifestly excessive having regard to the use to which the cabinet was put and the absence of any finding of reprehensible conduct in the way in which the personal items were treated.
I would therefore set aside the awards.
In the circumstances of this case the making of an award of exemplary damages critically depends on Detective Skeffington’s state of mind. There is evidence on which it could be inferred that, contrary to his denial, he realised that the cabinet was Detective Treglown’s personal property. However, the Magistrate made no such finding and I cannot fairly make it against Detective Skeffington on the face of the transcript alone. The matter must be remitted to the Magistrate’s Court to determine the matter. If it were not necessary to remit the issue of exemplary damages I might have determined the question of aggravated damages myself but both issues are most conveniently dealt with together.
I make two further comments about the assessment which must be undertaken. First, even if a finding is made that Detective Skeffington realised the cabinet was Detective Treglown’s, the circumstances of the use of the cabinet for police purposes, and Detective Skeffington’s belief about the information it might contain, might militate against an award of exemplary damages. Secondly, on the assessment of aggravated damages, the different causes of Detective Treglown’s distress, namely the investigation itself, the opening (trespass) of the cabinet, the failure to follow SAPOL procedures by not inviting him to witness it and the inspection (trespass), such as it might have been and become known to him, of the documents must be carefully disentangled. The first matter, his distress about the conduct of the investigation generally, was not caused by the tortious conduct even though it might have been exacerbated by the search and the way it was conducted.
Conclusion
I allow the appeal. The awards of aggravated and exemplary damages are set aside. The matter is remitted to the Magistrates Court for damages to be assessed in accordance with these reasons