Exemplary damages: general principles and criminal penalty

Cheng v Farjudi [2016] NSWCA 316


[49] Because, as her Honour observed, the usual rule is that exemplary damages are not awarded where a person has been subject to a criminal sanction, I have found it appropriate to re-visit the principles governing such an award than might otherwise be necessary, those principles being well established.

[50] Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40 ; 117 CLR 118 was a defamation case arising out of articles in a newspaper that suggested an MP had been duped by a Russian spy. Windeyer J, at 153, made the following observations:

… that all matters that may aggravate compensatory damages do not of themselves justify the addition or inclusion of a further purely punitive element [of exemplary damages]… The wrong must be one of a kind for which exemplary damages might be given; and the facts of the particular case must be such that exemplary damages could properly be given … there must … be evidence of some positive misconduct to justify a verdict for exemplary damages. There must be evidence on which the jury could find that there, was, at least, a ‘conscious wrong-doing in contumelious disregard of another’s rights’. I select that particular phrase out of many, because it has been used more than once in this Court.

[51] The Court declined to follow the approach to exemplary damages taken by the House of Lords in Rookes v Barnard[1964] AC 1129, which, relevantly, limited exemplary damages to circumstances where the defendant’s conduct was “wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like…” and where it took place in the context of one of two categories identified by Lord Devlin — being first, oppressive or arbitrary conduct by servants of the government or, second, where the defendant’s conduct has been calculated to make a profit for himself which may exceed the compensation payable to the defendant. The Court, dismissing the appeal, found that the jury’s assessment of exemplary damages should not be interfered with.

[52] In XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12 ; 155 CLR 448 Brennan J explained that exemplary damages are essentially punitive. His Honour stated:

9. As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories …

10. The social purpose to be served by an award of exemplary damages is, as Lord Diplock said in Broome v Cassell & Co … ‘to teach a wrong-doer that tort does not pay’.

[53] In Lamb v Cotogno [1987] HCA 47 ; 164 CLR 1 the High Court dismissed an appeal from the NSW Court of Appeal in which the majority, Glass JA and McHugh JA had awarded exemplary damages in a case involving a motor vehicle incident. The issue in the High Court revolved principally around the question whether exemplary damages were appropriate, that is, in serving the purpose for which they are awarded, where the wrongdoer was insured under a scheme of compulsory insurance and the insurer would be liable to pay them.

[54] That question does not arise here. However, the following observations of McHugh JA in the Court of Appeal: Cotogno v Lamb (No 3)(1986) 5 NSWLR 559 at 586–7, are of relevance:

An award of exemplary damages acts as an example to all those in the community who might engage in wrongdoing involving a conscious and contumelious disregard of another person’s rights. Nor should it be thought, as the argument for the defendant appeared to maintain, that exemplary damages constitute an historical anomaly which no longer serve any useful purpose. The sanctions of the criminal law are not always sufficient to protect the weak and the disadvantaged against the oppressive conduct of the powerful and the wealthy. An award of exemplary damages also serves another useful social purpose: it helps to remove the sense of grievance which the plaintiff feels when he has been the victim of insulting behaviour. … I think that the average Australian would expect that the victim of conscious wrongdoing committed in contumelious disregard for his rights should receive more than a person who has received comparable injuries without such conduct… the courts in interpreting and applying the law should apply the standards and respond to the demands of the average, responsible member of the community.

[55] In Herald and Weekly Times v Popovic [2003] VSCA 161 ; 9 VR 1 a magistrate sought damages following an article by Andrew Bolt published in The Herald Sun. Gillard AJA (Winneke ACJ agreeing) expressed the opinion, at [425], that:

… an award of exemplary damages is not confined to the conduct surrounding the commission of the tort and exemplary damages may be awarded for reprehensible conduct by the defendant subsequent to the publication.

[56] However, in that case, the post-verdict conduct was not considered to reach the threshold of contumelious and conscious disregard for the plaintiff’s rights. This statement is well supported by authority: see Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 where the relevant cases are cited.

Exemplary damages where a criminal sanction has been imposed

[57] In Gray v Motor Accidents Commission the High Court held that an award of exemplary damages “may not” be awarded where a person has been convicted and “substantial punishment” imposed for the same conduct that is the basis of a claim in civil proceedings.

[58] In this case, as a criminal sanction was imposed upon the appellant following his plea of guilty, the question arises as to the circumstances in which the fact of a criminal sanction having been imposed will not constitute a bar to the award of exemplary damages. That question raises the particular question of whether the penalty imposed on the appellant falls within the description of “substantial punishment”

[59] However, as I explain below, a further question arises, namely, whether exemplary damages, if any, are warranted in this case, regardless of whether the penalty imposed was substantial, because of the appellant’s conduct in the manner in which he defended the respondent’s civil claim.

[60] In Gray v Motor Accidents Commission the driver of a motor vehicle had been convicted of intentionally causing grievous bodily harm and sentenced to seven years’ imprisonment, which, on any view, was accepted to be “substantial punishment”. In subsequent negligence proceedings brought against the insurer of the driver’s vehicle, a claim for exemplary damages was refused. An appeal to the High Court against that refusal was dismissed.

[61] The plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) held, at [40], that exemplary damages “may not be awarded” where substantial punishment had been imposed upon a person for the same conduct that was subject of a civil suit. Their Honours emphasised that damages “may not” be awarded in that circumstance:

… because we consider that the infliction of substantial punishment for what is substantially the same conduct which is the subject of the civil proceeding is a bar to the award; the decision is not one that is reached as a matter of discretion dependent on the facts and circumstances in each particular case. (emphasis added)

[62] Their Honours stated that there were two reasons in principle for that finding:

  • 42
    First, the purposes for the awarding of exemplary damages have been wholly met if substantial punishment is exacted by the criminal law. The offender is punished; others are deterred. There is, then, no occasion for their award.
  • 43
    Secondly, considerations of double punishment would otherwise arise. …

[63] There was no dispute in Gray that “substantial punishment” had been inflicted on the tortfeasor by the imposition of a period of imprisonment. The majority therefore held, at [44], that it was not necessary to decide whether the bar to exemplary damages arises only where the punishment is “substantial”, or how close the similarity must be between the conduct that is the subject of the two proceedings.

[64] However, their Honours made the following obiter observations:

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    No doubt references to ‘substantial punishment’ and to the need for ‘substantial identity’ between the conduct that is the subject of the criminal and civil proceedings may lead to difficult questions of fact and degree. What is substantial punishment? Does it matter if the prosecuting authorities and the offender reach some arrangement about what will be charged and, if charged, admitted? Does it matter if for reasons personal to the accused (or for other reasons) only a nominal penalty is imposed in the criminal proceedings? Does it matter if the criminal offence charged is an offence of strict liability?
  • 46
    These … are not questions that fall for decision in this case. At first sight, however, if criminal charges, alleging the same conduct as is alleged in a civil proceeding, have been brought and proved, it would be a most unusual case in which it was open to a civil court to conclude that the outcome of those criminal proceedings did not take sufficient account of the need to punish the offender and deter others from like conduct. There seems to be much to be said in favour of the views reached by a majority of the Court of Appeal of New Zealand in Daniels v Thompson[1998] 3 NZLR 22 at 48 per Richardson P, Gault, Henry and Keith JJ; cf 76–77 per Thomas J] that for a civil court to revisit a sentence imposed in a criminal court for the purpose of deciding whether the criminal received his or her just deserts is ‘contrary to principle’ and must ‘undermine the criminal process’ (emphasis added)

[65] Their Honours observed, at [52], that in some jurisdictions in the United States, as in the Ontario Law Reform Commission recommendations, the principle had been stated in terms that exemplary damages should not be awarded if a defendant has been “sufficiently punished by the criminal justice system”. This highlighted for their Honours the importance of addressing the underlying question of principle which in turn raised a series of questions, including how the civil court was to adjudge the adequacy of punishment and why should it be open to a plaintiff in civil proceedings to contend that the punishment imposed was inadequate: see at [53].

[66] Their Honours then commented, at [54]:

No doubt, if the punishment inflicted by a criminal court is properly regarded as substantial (and a term of imprisonment would seem always to be so) no question of inadequacy should arise. But what if a financial or other non-custodial penalty is exacted? How is the adequacy of that penalty to be judged? (citation omitted)

[67] As those questions did not arise for determination, their Honours did not seek to proffer any answers. Kirby J concurred in the result but reasoned differently, finding that there was a greater role for judicial discretion in determining whether to award exemplary damages in cases where the tortfeasor is also liable to criminal punishment: see at [95].

[68] Callinan J also found no error in the trial judge’s failure to award exemplary damages, although his Honour dissented on other grounds. It is apparent, however, from his Honour’s reasons at [143], that he considered that there may be a place for the award of exemplary damages, notwithstanding that a wrongdoer had been or might be subject to a criminal sanction for the same conduct.

[69] Included in the matters that Callinan J considered might be relevant to determine whether exemplary damages may be awarded were: the nature of the conduct of the defendant; the fact that lesser punishment may have been imposed as a consequence of the acceptance of a lesser plea; or the availability (for what might be sound policy reasons in and for the purposes of the criminal law) of a small penalty only. His Honour, at [144], commented that in negligence cases it would be rare for there to be an award of exemplary damages.

[70] There are two decisions of this Court which point to the availability of exemplary damages, notwithstanding that criminal proceedings had been taken in respect of the same conduct.

[71] In Niven v SS [2006] NSWCA 338 a plaintiff was awarded substantial damages for injury suffered consequent upon sexual assaults perpetrated upon him by the defendant. Between the date of the first instance decision and the hearing of the defendant’s appeal against the award of damages, the defendant was acquitted of charges relating to the same conduct as was subject of the civil proceedings claim for damages.

[72] This Court held there was no error in an award of exemplary damages being made, essentially on the basis that as the defendant had been acquitted no question of double punishment arose. In this regard the Court, at [63], expressly declined to follow the New Zealand decision of Daniels v Thompson [1998] NZCA 3 ; [1998] 3 NZLR 22W v W[1999] 2 NZLR 1 (Privy Council appeal).

[73] Tobias JA also observed, at [64]:

In my view the whole tenor of the High Court’s approach in Gray [is that]…exemplary damages should not be awarded in a civil trial where the defendant, in a preceding criminal trial, had had inflicted upon him or her ‘substantial punishment’. Even in Gray, the Court left for another occasion the meaning of ‘substantial punishment’ particularly if only a nominal penalty for reasons personal to the accused or other reasons had been imposed in the criminal proceedings. (emphasis added)

[74] The availability of exemplary damages was accepted by this Court in Whitbread v Rail Corporation NSW [2011] NSWCA 130. That case concerned proceedings for assault, battery and false imprisonment arising from an altercation between a transit officer and the appellants, two brothers. The transit officer was prosecuted for assault in the Local Court and found guilty of assaulting both appellants. The transit officer appealed to the District Court. The conviction in respect of one brother was quashed. The finding of guilt in respect of the other brother was confirmed but no conviction was recorded pursuant to s 10 of the Crimes (Sentencing Procedure) Act and a good behaviour bond imposed. The trial judge refused to make an order for exemplary damages and referred to the fact the transit officer had been prosecuted. The trial judge said:

… such matters remain on the criminal record of the second defendant and in that sense could be regarded as a punishment as a result of the events of that evening. [The transit officer] was also subject to disciplinary proceedings and suspended from his employment.

[75] The appellants contended that the trial judge had failed to examine the penalty imposed on the transit officer and had failed to evaluate whether it was so substantial as to warrant exemplary damages being withheld. The appellants argued that neither the criminal nor disciplinary proceedings justified withholding exemplary damages from the appellants. Whealy JA observed, at [239], that the plurality in Gray had left open the case where a wrongdoer had been found guilty, but where a financial or non-custodial penalty had been imposed; where a wrongdoer has been brought before the criminal courts and acquitted; and where there might properly arise a real issue as to whether the punishment inflicted upon a wrongdoer was adequate. His Honour observed that:

The plurality judgment, in each of those situations, did not conclude one way or the other whether the imposition of the criminal law would be a bar to exemplary damages.

[76] At [242], his Honour stated:

… the High Court’s decision in Gray is authority for the proposition that, where substantial punishment has been imposed by the criminal justice system for the same conduct as is involved in the civil proceedings, this will operate as a complete bar to the grant of exemplary damages. Where ‘substantial punishment’ has not been imposed, or where it is arguable that it has not, there is no reason why the trial judge cannot have some regard to the nature of those proceedings and their outcome as a factor, amongst others, in determining whether or not to award exemplary damages. (emphasis added)

[77] His Honour considered that the criminal proceedings brought against the transit officer were a factor relevant to the determination whether to award exemplary damages, but did not provide an absolute bar. His Honour stated, at [250]:

In my opinion, it was appropriate for his Honour to take into account the situation, so far as the criminal proceedings in connection with [the assault on one of the appellants], were concerned. This was because it was relevant to see whether the processes of the criminal law had been brought to bear on [the transit officer], and to determine whether or not, in any sense, he had been punished as a result of his assaults. The trial judge was able to conclude that he had been. It was not so much a question of the adequacy of the punishment, but the fact that he had been successfully prosecuted under the criminal law, and found guilty. His Honour did not treat this fact as determinative of the outcome on the issue of exemplary damages, but merely took it into account as one relevant factor. He did not regard it as a complete bar to the award of damages. In my opinion, it was not an error of law to rely on the matter in the way he did.

[78] Whealy JA also observed that the trial judge made reference to the second assault charge of which the railway officer had been acquitted on appeal and observed, at [251], that there was no error in the trial judge having taken into account the charge and subsequent acquittal as relevant factors in determining whether to award exemplary damages. Whealy JA concluded, at [251], on the relevance of the criminal proceedings to the question whether exemplary damages should be awarded:

I do not, however, consider that his Honour fell into any error by taking into account, as relevant on the issue, the fact of the criminal proceedings relating to the assault on [the appellant], and their outcome. Once again, his Honour clearly did not see this as a matter that, in itself, prohibited the imposition of exemplary damages. It was no more than a factor to be taken into account, with others, in the assessment of that issue. Indeed, in relation to both brothers, the criminal proceedings involving [the transit officer] were not identified as being of any particular significance. As factors going to the discretion as to whether exemplary damages [should be awarded], they were of a minor nature and were seen as such in assessing the overall situation.

[79] McColl JA dissented on the question of exemplary damages. At [60], her Honour held that the court could not take into account the criminal proceedings brought in respect of the appellant, because it was unaware of whether the transit officer had been punished at all in those proceedings:

The primary judge may have been aware from experience which entitled him to take judicial notice of the fact that a s 10 order remains on a person’s record, however it is not apparent that that would take the significance of a conclusion as to a conviction which did not proceed to a finding of guilt any further.

[80] Her Honour added:

The relevance of any criminal proceedings for both appellants’ claims can, in my view, be resolved on a factual basis. The unsatisfactory position concerning the evidence about any criminal proceedings against [the transit officer] means the Court cannot determine whether there was ‘substantial identity’ between the conduct that may have been the subject of the criminal and civil proceedings: Gray (at [45]) … In my view this means it is not open to the Court to conclude that any criminal charges against [the transit officer] in respect of [either appellant] alleged ‘the same conduct’ as was alleged in the present proceedings: Gray (at [46]).

[81] Her Honour concluded, at [61], that in the circumstances, she would not regard whatever criminal proceedings were taken as militating against an award of exemplary damages.

[82] In Tilden v Gregg the appellant was punched in the face by the respondent at Ettalong Memorial Bowling Club, following what the primary judge called a “history of discord” between the parties and a verbal altercation which occurred immediately before the assault. The respondent pleaded guilty to a charge of assault occasioning actual bodily harm. He was fined $800 and entered into a two year good behaviour bond. The trial judge refused the appellant’s claim for an award of exemplary damages on the basis that the matter was not appropriate for such an award, given the history of discord between the parties and some verbal provocation on the occasion of the assault.

[83] Meagher JA (McColl and Macfarlan JJA agreeing), held, at [66], that that approach was not in error. Meagher JA further commented, at [66]:

I should also add that in a case like the present, where the conduct has been the subject of a criminal conviction and punishment, a civil court considering whether to award exemplary damages would ordinarily proceed on the basis that the outcome of the criminal proceedings had taken sufficient account of the need to punish the appellant and deter others from like conduct: see Gray … at [46].

[84] Gray has been considered or cited by other intermediate appellate courts of appeal: see for example Giller v Procopets [2008] VSCA 236 ; 24 VR 1Herald & Weekly Times v PopovicDe Reus v Gray [2003] VSCA 84 ; 9 VR 432Victoria v Horvath [2002] VSCA 177 ; 6 VR 326McFadzean v CMFEU [2007] VSCA 289 ; 20 VR 250Carter v Walker [2010] VSCA 340 ; 32 VR 1Brockway v Pando [2000] WASCA 192; Cramer v Geraldton Building Company [2004] WASCA 289; S v R [2004] WASCA 113; Noye v Robbins[2010] WASCA 83; Wilson v Horne [1999] TASSC 33 ; 8 Tas R 363; BHP Billiton Ltd v Parker [2012] SASFC 73; Vaysman v Deckers Outdoor Corporation Inc [2014] FCAFC 60 ; 222 FCR 387; Fernando v Commonwealth [2014] FCAFC 181 ; 231 FCR 251.

[85] However, none of those cases has raised the issue that is raised here.

[86] Daniels was not followed by this Court in Niven v SS and does not appear to have been otherwise considered in any Australian authority at an appellate level. To the extent that it has been considered in New Zealand in the context of an award of exemplary damages, that context was informed by the Accident Insurance Act 1998 (now repealed and replaced by the Accident Insurance Act 2001) which permits an award of exemplary damages even where a criminal sanction has been imposed.

[87] Accordingly, the position in Australia is that exemplary damages may not be awarded where substantial criminal punishment has been imposed. However, the High Court in Gray did not preclude an award of exemplary damages where something other than substantial punishment was imposed, and in accordance with the authorities in this Court exemplary damages may be awarded in some circumstances notwithstanding that a criminal sanction has been imposed.