Cheng v Farjudi

BEAZLEY P: This is an appeal from the judgment of Sidis ADCJ in which her Honour ordered the appellant to pay damages to the respondent for injuries he suffered consequent upon the appellant’s assault and battery upon him at about 9.30pm on 15 September 2011 in the Reno Gambling Room at the Parramatta Leagues Club.

The trial judge, at [4], observed that the evidence concerning the assault was confused and conflicting. As her Honour noted, there were five accounts of the circumstances in which the assault took place and there was CCTV footage upon which the parties and their witnesses relied to support their varying versions. There were also still photographs from the CCTV footage. In addition, the incident escalated rapidly and occurred over a very short period of time. Nonetheless, her Honour found that there were a number of facts, set out at [8]-[16] under the heading “Established facts”, about which there was no contention. None of those facts was subject of challenge on the appeal. Those facts, in summary, together with certain of her Honour’s findings, were as follows.

On the night of the incident, the appellant and his wife and the respondent and his wife were playing poker machines at the Parramatta Leagues Club. The poker machines were arranged in two rows, so that gamblers in one row sat with their backs to gamblers in the other. The appellant’s wife and the respondent’s wife had their backs to each other. The appellant was sitting immediately to the right of his wife as they were facing the poker machines. A friend, Mr Chau, was nearby. A tall, well-built man was standing behind the appellant. The respondent was playing a poker machine on the same side of the room as the appellant and the appellant’s wife, a few metres away.

The area was congested and noisy, contributed to in part by the conversation taking place around the appellant and his wife. The appellant ignored a request by the respondent’s wife and another woman to quieten down. The noise increased when either the appellant or his wife won a jackpot and the appellant and Mrs Farjudi exchanged words when Mrs Farjudi again asked for quiet. Her Honour, at [13], observed that the words used by each were in dispute. The respondent overheard the exchange, although not the words that were said, and walked towards them, or towards the appellant, partially passing the large man standing behind the appellant. The respondent raised his left arm with his hand facing upwards. Her Honour observed, at [71], that no witness suggested that the respondent formed a fist with either hand and he was not shown to do so on the CCTV footage. The respondent said something to the appellant, although there was no evidence of what he said. The appellant stood up and engaged in a fight with the respondent. Her Honour found, at [15], that in the course of this altercation the appellant pursued the respondent across the room. It is convenient to note at this point that her Honour held, at [78], that there was no evidence that the respondent directed any threatening language towards the appellant’s wife, or any spoken words at all.

It is also convenient to note at this point that in the CCTV footage, to which I will return, the appellant is seen taking hold of the respondent’s shirt on his left shoulder and throwing a number of punches, as the respondent stumbled backwards.

Her Honour held, at [24], that the appellant assaulted the respondent, delivering at least two blows to the respondent’s face. The appellant did not challenge that finding on the appeal.

The respondent suffered a fracture to the floor of the right orbit. Immediately post-accident he suffered from pain in the region of his eyes and nose, blurred vision and bruising around both eyes. His significant continuing disability is post-traumatic stress psychiatric injury.

The appellant, in his amended defence filed in response to the respondent’s statement of claim, denied that he had struck the respondent: para (4) of the amended defence, and denied that any of his conduct constituted a battery and/or trespass to the person: para (6) (where second appearing) of the amended defence. In para (6) (where first appearing) the appellant admitted that he had pleaded guilty to a charge of assault on the respondent. The terms of that paragraph of the defence are of particular relevance having regard to her Honour’s award of exemplary damages, which is the subject of ground 2 of the notice of appeal. It will be necessary to refer to the terms in which para (6) (where first appearing) is pleaded when dealing with that issue.

The appellant, pleaded, alternatively, that he acted in self-defence within the meaning of the Civil Liability Act 2002 (NSW), s 52, in that he was acting in defence of his wife: para (7) of the amended defence, and further, in the alternative, that any damages to which the respondent might be entitled were limited by the Civil Liability Act, s 53: para (12). The appellant denied that any of his conduct was intentional: para (10). Finally, the appellant pleaded that if it was found that he assaulted the respondent, the respondent’s damages ought to be limited by reason of the respondent’s own culpable conduct: para (11).

At trial, the appellant did not dispute that he had struck the respondent once in the face. His evidence was that this occurred when the respondent moved towards the appellant and his wife, who were seated side by side playing poker machines, and with their backs to the respondent’s wife, who was playing a poker machine in the adjacent row of poker machines. There remained an issue at trial, resolved in the respondent’s favour, as to whether the respondent had been struck more than once.

Notwithstanding that the appellant acknowledged that he had delivered one blow to the respondent, he maintained that he was acting in defence of his wife in circumstances where the respondent’s actions were unlawful. The appellant contended, therefore, that he was entitled to the benefit of the statutory defence provided by the Civil Liability Act, s 52 and, in any event, as the respondent had acted unlawfully, the respondent was not entitled to damages pursuant to the Civil Liability Act, s 53.

The trial judge held that the appellant had assaulted the respondent, that he had punched the respondent at least twice, had not acted in defence of his wife so as to be entitled to the statutory defence under s 52 and, in any event, had used excessive force.

As on her Honour’s findings, self-defence was not made out, s 53 did not apply so as to limit any damages award. Her Honour’s award of damages included general damages in the sum of $100,000, exemplary damages in the sum of $10,000 and awards for past domestic assistance in the sum of $40,824 and future domestic assistance in the sum of $20,594.

In summary, the issues raised on the appeal were as follows:

The appellant conceded at the outset of the appeal that, even if the respondent acted unlawfully, the appellant’s response was not proportionate. The consequence of this concession was that the self-defence/defence of another provisions of s 52 were not engaged so as to provide a complete defence to the respondent’s claim. However, the appellant contended that the damages limitations in s 53 applied.

The Civil Liability Act, s 52 provides, relevantly:

The Civil Liability Act, s 53 provides:

Having regard to the issues on the appeal, it is necessary in the first instance to determine the challenges to the factual findings made by the trial judge. For the most part, these challenges were articulated by reference to the CCTV footage of the incident, which, during the course of the hearing on the appeal, was played to the Court several times, both in short segments and in complete sequence at the speed at which it was taken. Reference was also made to the still photographs taken from the CCTV footage.

The specific findings challenged by the appellant were as follows:

In my opinion, the challenges to her Honour’s findings set out above fail. The CCTV evidence clearly depicted: an exchange between the respondent’s wife and the appellant’s wife; the respondent moving behind the large man; the respondent raising his hand in an upwards motion, moving in the direction of the appellant; the respondent lowering his hand; the respondent saying something; the appellant at this point having started to stand up; the appellant taking hold of the respondent’s shirt on the left hand side with his left hand, whilst at the same time directing a blow towards the respondent with his right arm.

The respondent is then seen trying to move away behind the large man. The large man is seen with his arm raised between the two men. The appellant is then shown continuing to move towards the respondent swinging his right arm towards the respondent. The respondent is seen continuing to move and stumble backwards. The appellant is seen to deliver a blow to the right side of the respondent’s face. By this time, the two men were some distance from where the appellant had been sitting at the poker machines.

The respondent is not depicted in the CCTV footage making a fist, or directing any blow towards the appellant at any time. Nor is he seen directing his hand at the appellant’s wife at the outset of the incident, or otherwise interacting with her.

Specifically, in relation to the first challenged finding, Mr Chau, as her Honour found, appeared to react, in terms of his facial expression only, when the appellant commenced to stand up. Prior to that, he is seen to be observing what was occurring.

In relation to the second challenged finding, I do not agree that the appellant does not appear to hit the respondent, as her Honour found was depicted in photographs 23 and 24.

In relation to the fourth challenged finding, whilst the appellant’s wife’s hand can be seen on the poker machine even after she clearly turned her head to look at the respondent, that was after the respondent had dropped his left arm and appeared to have been saying something to the appellant.

In relation to the fifth challenged finding, whilst the respondent remonstrated by using an upwards gesture with his left arm, he did not, as her Honour found, make a fist, nor did he direct the gesture with his arm towards the appellant’s wife, nor did the CCTV footage indicate that the respondent directed words towards her. Apart from Mr Chau’s evidence, in which he alleged that the respondent struck the appellant’s wife, fhere was no other evidence that he did so. Her Honour did not accept Mr Chau’s evidence.

The sixth and seventh challenged findings require some discussion. The appellant contended that: the appellant’s statements to police did not include a statement that he did not apprehend a threat towards his wife; the appellant’s actions, if retaliatory, were also protective; the appellant believed that the respondent’s conduct threatened the wellbeing of the appellant’s wife; and the appellant believed it was necessary to defend his wife from the respondent, including because the appellant believed the respondent had struck the appellant’s wife.

The appellant’s contentions cannot be reconciled with the evidence in the case. When the police attended at the Leagues Club on the night of the incident, the appellant gave the following account of what happened:

In his ERISP given on 29 September 2011, the appellant, with the aid of an interpreter, answered questions as follows:

Whilst the appellant, in his answers in his ERISP at Q113, responded affirmatively to the question, “[d]id you feel you had to do it to protect your wife?”, his further explanation in the other answers reproduced above, demonstrates that at the time he hit the respondent it was in retaliation for his wife being hit and not in order to protect her from further attack, or any threat thereof.

This conclusion also deals with the appellant’s contention in respect of the seventh challenged finding. Having regard to the explanations the appellant gave to the police, her Honour’s finding that the appellant failed to establish that he acted on the belief that it was necessary to defend his wife is unassailable.

In the course of the hearing, agreement was reached between counsel as to submissions that each were entitled to make, notwithstanding that certain formal propositions had not been put to the appellant and respondent respectively in accordance with the rule in Browne v Dunn (1893) 6 R 67.

That agreement included that the respondent was entitled to make submissions that the appellant had not, during the course of the ERISP, raised matters of self-defence or of defending his wife and that the account provided by the appellant in the ERISP was inconsistent with other evidence and should not be accepted.

The agreement extended to the appellant’s counsel’s re-examination relating to the appellant’s evidence that only one punch was thrown as was depicted in photographs 48 and 49; his denial that he punched the respondent as shown in photographs 25 and 39; and his evidence that the incident or skirmish had stopped at “about after” the punch in photographs 48 and 49.

Her Honour’s findings in respect of the blows the appellant directed towards the respondent were as follows:

While her Honour accepted, at [23], that the CCTV and photograph 43 indicated that the respondent was struck a third time, she did not consider that the images were clear enough to make a firm finding to that effect.

It should be noted, as a matter of completeness, that the appellant conceded that his response was not proportional. Accordingly, s 52 was not engaged, and, it follows, s 53 has no application.

A person is only entitled to the protection of the defence under s 52 if the conduct to which the person was responding was unlawful. This required the appellant to establish that the respondent’s conduct in approaching and acting as he did was unlawful. “Unlawful” within s 52 includes tortious conduct: State of New South Wales v McMaster [2015] NSWCA 228 at [200]-[204]. The appellant contended in this regard that the respondent’s approach towards the appellant and his wife as they sat playing the poker machines was sufficiently confronting, threatening and intimidatory to raise an expectation in them of physical contact such that the respondent’s conduct was unlawful.

Expressed in these terms, the contention is broader than the case put at trial, namely, that the appellant was acting in defence of his wife, not that he also felt threatened and intimidated. However, whether the contention is that the appellant was acting in response to allegedly unlawful conduct towards his wife or towards both of them, the CCTV images refutes the appellant’s assertion and, as I have already found, the appellant’s challenges to her Honour’s findings, in particular, the finding set out above at [19], have failed.

Further, and importantly in respect of this issue, the appellant did not challenge the trial judge’s finding at [64] that it was improbable, from viewing the CCTV footage, that the respondent could have extended his arm a sufficient distance to reach the left side of the appellant’s wife’s face as she sat facing the poker machines. Nor did he challenge the finding at [65] that, as shown on the CCTV footage, the appellant’s wife continued to play the poker machine after the respondent’s hand was fully raised. Her Honour, at [66], considered it improbable that the appellant’s wife would have continued to do so if she had received a stinging blow to her face and ear, as she claimed in her evidence.

There can be no doubt that the respondent remonstrated with the appellant, using an upwards hand gesture, and also appears to have said something to the appellant. There was nothing in the manner of the remonstration that would have caused the appellant or his wife to fear that physical contact was threatened, let alone imminent. Indeed, the respondent had dropped his arm before the appellant had completely stood up from his seated position on the stool in front of the poker machine. Further, her Honour made no finding as to what the respondent said, and the appellant does not contend that any finding be made.

It follows that there was no error in her Honour’s finding that the respondent had not engaged in conduct that was unlawful. Indeed, on the CCTV evidence, no other conclusion was reasonably open.

I would dismiss ground 1 of the appellant’s notice of appeal. This in turn disposes of issues 1-5 as enumerated above.

Her Honour, at [153], determined that this was an appropriate case for the award of exemplary damages. The appellant does not challenge the amount of the award of $10,000, but contended that there was no proper basis for the making of the award.

Her Honour, at [147]-[148], observed that exemplary damages were awarded as a form of punishment, to deter repetition of reprehensible conduct by a defendant or others, or to act as a mark of the court’s disapproval of impugned conduct. Her Honour further noted that the objects of an award of exemplary damages may include condemnation, admonition, making an example of the defendant, appeasement of a plaintiff in order to temper an urge to exact revenge, or the expression of strong disapproval. Her Honour noted, at [148], that the basis for an award of exemplary damages was as stated in Whitfeld v De Lauret & Co Ltd [1920] HCA 75; 29 CLR 71 at 77 for “conscious wrongdoing in contumelious disregard of another’s rights”.

Her Honour, at [149], considered that all these matters applied in this case and, in summary, found that the appellant was a “younger, bigger, stronger and fitter” person than the 68-year-old respondent. She further observed that the appellant had not sought to engage the respondent in conversation before commencing his violent attack upon the respondent. She stated that the appellant had not given the respondent any opportunity to defend himself and that he had caused the respondent considerable injury. Her Honour also observed that the appellant had resisted the attempt by the respondent’s wife to restrain him, and characterised the appellant’s conduct as “clearly reprehensible”.

Her Honour acknowledged, at [151], the usual rule that when a person has been the subject of a criminal penalty in respect of the conduct that was the subject of the claim, it is not appropriate to award exemplary damages because the criminal conviction and sentence imposed have adequately dealt with the elements of punishment and deterrence which are integral to an award of exemplary damages: see Gray v Motor Accidents Commission [1998] HCA 70; 196 CLR 1 at [46]; Tilden v Gregg [2015] NSWCA 164 at [66].

In this case, the appellant had pleaded guilty to a charge of assault occasioning actual bodily harm, in respect of which a 12 month bond pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 had been imposed. However, her Honour, at [152] accepted the respondent’s submission that the imposition of a good behaviour bond was minimal and unlikely to meet the objectives of an award of exemplary damages. This was particularly so having regard to the position the appellant took of denying his guilt and liability in the civil proceedings.

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 more than might otherwise be necessary, those principles being well established.

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 153-154, made the following observations:

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.

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

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.

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:

In The 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:

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.

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.

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”

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.

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.

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:

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

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.

However, their Honours made the following obiter observations:

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].

Their Honours then commented, at [54]:

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].

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.

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.

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.

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.

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 22; W v W [1999] 2 NZLR 1 (Privy Council appeal).

Tobias JA also observed, at [64]:

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:

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:

At [242], his Honour stated:

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]:

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:

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:

Her Honour added:

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.

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.

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

Gray has been considered or cited by other intermediate appellate courts of appeal: see for example Giller v Procopets [2008] VSCA 236; 24 VR 1; The Herald & Weekly Times v Popovic; De Reus v Gray [2003] VSCA 84; 9 VR 432; State of Victoria v Horvath [2002] VSCA 177; 6 VR 326; McFadzean v CMFEU [2007] VSCA 289; 20 VR 250; Carter v Walker [2010] VSCA 340; 32 VR 1; Brockway 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.

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

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.

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.

The appellant submitted that her Honour erred in awarding exemplary damages because he had been punished for the same conduct and that, in any event, a proper basis for an award had not been established

The appellant submitted that, in accordance with the authorities, it would be a most unusual case where it would be open to a civil court to award exemplary damages when a person had been convicted and sentenced. It was submitted that unless there was some demonstrable miscarriage of justice in the sentence, a court would simply be second-guessing the decision of the criminal court. The appellant relied in particular upon the principles stated in Gray v Motor Accidents Commission at [46]-[55]. The appellant contended that what had occurred here was that the appellant had spontaneously reacted to some sort of provocation, and the reaction was of very short duration. Accordingly, this was not a case in which exemplary damages would be appropriate even if there had been no criminal conviction.

The contention that this was a spontaneous reaction to a provoking incident derives, in part at least, from the statements the respondent made in his ERISP some two weeks after the incident. When asked what happened (Q 39) he answered:

The appellant also submitted that at an early stage he had made admissions as to his conduct, and that his plea of guilty reflected an acceptance of excessive force.

The difficulty with any reliance upon the appellant’s statements in his ERISP, however, is that their underlying premise does not accord with the evidence on the CCTV footage, or with the other evidence.

The respondent contended that the award was one that her Honour was entitled to make as a matter of legal principle. He further contended that, on the facts as her Honour had found them, whether an award should be made in the circumstances was a matter for her assessment. For the appellant successfully to challenge that assessment, that is, whether or not exemplary damages should have been awarded, it was necessary for the appellant to demonstrate House v The King error: House v The King (1936) 55 CLR 499 at 504-505.

The respondent pointed out that, in making that assessment, her Honour had regard not only to the appellant’s conduct in committing the assault upon the respondent, but also to the manner in which the appellant had conducted his defence. In that regard, the pleading of para (6) (where first appearing) of the amended defence was of particular significance. In that paragraph the appellant pleaded that “a plea of convenience was entered by [him] to a charge of assault on [the respondent].”

Likewise of significance to her Honour’s assessment as to whether this was an appropriate case in which to make an award was the appellant’s denial, that he had “engaged in conduct that constituted battery and/or trespass” in the second paragraph numbered (6).

The respondent submitted that notwithstanding the appellant’s guilty plea to the assault charge, he had, in these proceedings denied his guilt and put the respondent to proof of liability. In doing so, the appellant had contradicted his plea so that it could not be accepted that he was remorseful or contrite, or at least, to the extent that his plea of guilty involved any demonstration of remorse or contrition, his conduct of the case demonstrated that, at least at the time of the trial, he had none.

The respondent also advanced this submission in terms that the manner in which the appellant had conducted the case was an aggravating factor in the award of damages and demonstrated the appellant’s disregard of the seriousness of his conduct. He referred to the fact that exemplary damages had historically been awarded for subsequent conduct in defamation cases, including in respect of the manner in which a defendant had conducted a defence.

The respondent also submitted that the factors her Honour took into account in determining whether to award exemplary damages were relevant matters to which she was entitled to have regard.

As I have already indicated, it is settled authority in this country that exemplary damages may not be awarded where a person has been subject of a substantial criminal sanction. The Court observed in Gray that there may be a question as to what constitutes “substantial punishment”. In R v Mauger [2012] NSWCCA 51 this Court held, in the context of a Crown appeal, that a bond imposed under Crimes (Sentencing Procedure) Act, s 10, with no conviction recorded, was a penalty that carried with it serious consequences if breached.

The Crown in Mauger had sought the imposition of a good behaviour bond, with a conviction recorded, under s 9 of the Crimes (Sentencing Procedure) Act. Harrison J, with whom McCallum J and I agreed, at [37], explained that the significance of the imposition of a bond was not to be dismissed and that having regard to the terms and duration of the bond in that case, regard had been had to deterrence and denunciation. As Harrison J explained:

However, it is a different thing to say that a penalty such as a bond carries with it serious consequences and to say that such punishment was substantial. There is also a difficulty in a civil court determining whether a penalty imposed was substantial. The plurality adverted to this in Gray at [45]-[46], set out above at [64]. There may also be limitations in the evidence before the court so that it is not possible to make an assessment whether the penalty imposed was “substantial”, a matter of comment in Whitbread.

Indeed, there are other significant reasons in addition to those to which the High Court referred and in addition to any evidentiary limitations, why a civil court should not engage with the question of whether a sentence imposed for like conduct as alleged in the civil proceedings is substantial.

These include not only questions of judicial comity, but more fundamentally, that the sentence, unless appealed, is presumed to be correct and that it should be assumed that the judicial officer had regard to the purposes of sentencing as prescribed in the Crimes (Sentencing Procedure) Act, s 3A. These include specific and general deterrence: para (b); the denunciation of the conduct of the offender: para (f); and to recognise the harm done to the victim and the community: para (g). Indeed, for a judge in civil proceedings to find that a penalty imposed was not “substantial” would seem to constitute, what in other contexts is referred to as collateral attack.

Given the circumstances of this case, the question is whether it was an unusual case in the sense raised in Gray. It will be recalled that the plurality stated in Gray:

For my part, I am not prepared to find that a conviction recorded and the imposition of a bond was not a substantial penalty. There is no evidence before the Court as to why a bond was imposed rather than a sentence of imprisonment. It is not known, for example, whether the appellant had any prior convictions. It is not known whether he is a person of high community standing. Nothing is known of his background other than his ethnicity. However, I consider that it must be assumed that the judicial officer who imposed the sentence had due regard to all relevant circumstances and in imposing a bond under s 9 of the Crimes (Sentencing Procedure) Act had regard to the purposes of sentencing identified in s 3A of that Act.

Contrary to the view I have taken, her Honour considered that there was merit in the respondent’s submission before her that the 12 month good behaviour bond imposed on the appellant was minimal and unlikely to meet the objectives of an award of exemplary damages, although this was particularly so having regard to the position the appellant adopted in the manner in which he conducted his defence.

Because I have not been prepared to find that the penalty imposed was not substantial, the question that arises is whether exemplary damages ought to have been awarded for some unusual reason. In this case that can only be, if at all, because of the manner in which the appellant conducted the litigation.

As I have explained, in the civil proceedings, the appellant in his verified defence not only denied on oath that there had been any assault, he also pleaded, again in his verified defence, that he had only pleaded guilty as “a matter of convenience”. The respondent did not explore that matter with the appellant in cross-examination and it was not raised in his examination in chief. This gave rise to a comment by her Honour that she had not heard from the appellant what factors had persuaded him to take the course that he did.

The respondent answered this, in part at least, in his oral submissions on the hearing of the appeal, that any such questioning was likely to have been met by a claim for legal professional privilege. It was answered at trial in the respondent’s submission to the trial judge that the appellant could have raised self-defence as a complete answer to the charge in accordance with the Crimes Act, s 418, but had chosen not to do so. I consider that there was merit in both responses.

In my opinion, the appellant’s conduct in denying the assault and swearing a defence that he had only pleaded guilty “for convenience” demonstrated a continuing contumelious disregard for the respondent’s rights, not only to be able to engage in social activities without being subjected to the serious assault that was inflicted upon him, but also by the continuing conduct in denying that same conduct and requiring the respondent to engage in a seven day trial to vindicate his civil right to damages. In short, I consider that the manner in which the appellant contested the proceedings was a continued display of a disregard for the respondent’s interests, in circumstances where the CCTV footage made his denial of the assault and its intensity and his claim of unlawful conduct by the respondent untenable.

For these reasons, I consider that the manner in which the appellant defended the appellant’s claim for damages was unusual in the sense used in Gray. The position would have been different, of course, had the case been conducted on the basis that the respondent was put to proof of his damages claim.

In the circumstances, I consider that this was an appropriate case for exemplary damages, albeit for reasons that are not entirely in accord with the reasons of the trial judge. Notwithstanding that difference, I would not disturb the quantum awarded which, in any event, was not contested by the appellant.

I would dismiss this ground of appeal.

The trial judge held, at [133], that the respondent suffered, as a consequence of the appellant’s assault upon him, an injury to the right eye in the nature of a fracture to the right orbit, facial bruising and post-traumatic stress disorder manifesting in depression and anxiety and in physical symptoms of dizziness and headaches.

Her Honour observed, at [136], that the appellant had been “somewhat resistant to treatment by way of clearly needed psychotherapy”. Her Honour expressed the view that given the lapse of time since his condition had developed, any treatment provided would be of questionable benefit. Her Honour therefore discounted the amount claimed for future psychiatric treatment to $5,000 to allow for some form of intervention to assist the respondent. Her Honour considered that the amount claimed for the ongoing cost of attending upon his general practitioner and for medication were reasonable and thus allowed the sum of $23,009 (this amount is subject to correction due to a conceded arithmetical error).

The trial judge awarded damages in the following amounts:

There was no challenge to the quantum of the awards for general damages and exemplary damages.

However, the appellant contended that her Honour made an arithmetical error and also contended there should have been no award for future out of pocket expenses, as the respondent had failed to identify, except perhaps in vague terms, the need for future treatment or the type of treatment needed. The appellant also pointed to the small award of $2,500 for past out of pocket expenses as being indicative of the absence of any need for future treatment.

The respondent conceded the arithmetical error. It was agreed between the parties that as an arithmetical calculation, the award for future out of pocket expenses was $18,181.

The respondent submitted that contrary to the appellant’s assertion, there was evidence to support an award for future out-of-pocket expenses. Before going to that evidence, it is convenient to consider the claim that was made as follows:

The evidence upon which the respondent relied to support that claim was as follows.

Mr Hooper, psychologist, in a report dated 3 January 2013, reported that the respondent presented with ongoing symptoms of post-traumatic stress disorder including hyper-vigilance to threat, active avoidance and re-occurring flashbacks of the event and disturbed sleep. He had attended 10 hours of counselling and had been provided with “psychoeducation on trauma, post-traumatic stress disorder (PTSD) and the flight and fight response”. Stress management techniques had also been discussed. Mr Hooper recommended that the respondent have a further 12 sessions to try to reduce his symptoms.

Dr Moghadam, general practitioner, in a report dated 6 June 2015, stated that the respondent had been undergoing treatment for depression over years but that since the assault he had been feeling “worse with low mood, low concentration and reduced motivation and energy”. He reported that the respondent had been having nightmares and was waking up in the middle of the night in a panicked state. Dr Moghadam also reported that the respondent was taking Escitalopram for his depression and that he had referred the respondent for psychological counselling. Dr Moghadam was of the opinion that long-term management was required to assist the respondent’s mood and recovery.

Dr Clark, psychiatrist, in his medico-legal report dated 6 March 2015, stated that the respondent should be attending a treating psychiatrist and, in response to the question as to whether the respondent was likely to require medication in the future, referred back to his opinion that the respondent should be having psychiatric treatment and added that “medication can cost up to $400 a month”. Having regard to her finding that the respondent had been somewhat resistant to psychiatric treatment, her Honour reduced the claim of $6,712 to $5,000.

In my opinion, contrary to the appellant’s assertion, there was evidence to support an award for future out-of-pocket expenses. As there was no real, if any, challenge to the individual components of the award, I would reject this ground of appeal.

The parties have provided an agreed calculation of the damages to be awarded, corrected to take account of the arithmetical error and on the assumption that no error is disclosed in those aspects of the award that were subject to challenge. As I have found there was no error, the total amount of damages, is, therefore, as agreed, $200,099.

It follows that, subject to the correction of the arithmetical error, the appeal should be dismissed. That error is appropriately made under the slip rule. In the circumstances, I am of the opinion that the appellant should pay the costs of the appeal, notwithstanding that the amount of the judgment has been slightly reduced. There was immediate agreement from the respondent that there was an arithmetical error and but for the other bases upon which the appeal was brought, none of which have been successful, agreed consent orders could have been filed in the Registry.

Accordingly, I make the following orders:

WARD JA: I agree with Beazley P.

HARRISON J: I agree with Beazley P.