Alishah, Syed v Gunns Ltd

Court:Full Supreme Court
Docket Number:422/2010
Judge:Evans J, Blow J, Tennent J
Judgment Date:01 Dec 2010

[2010] TASFC 6

[2010] TASSC 24


Evans, Blow and Tennent JJ


Alishah, Syed
Jordan, Warrick
Kimbell, Paul Eric
Harris, Nathan
Sargent, Lee Anthony
Thompson, Brett
Dant, Nishant Allan
Majewski, Ursula Dubiel
Mills, Christopher Joseph
Sharp, Benjamin Huw
Gibson, Miranda Kymalee
Mooney, William Hugh
Lewandowsky, Rachel Alison Margaret
Gunns Limited
Tasmanian Pulp & Forest Holdings Ltd
Gunns Forest Products Pty Ltd
Gunns Limited
Alishah (No 4)

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

Aust Dig Procedure [469]

Procedure — Discovery and interrogatories — Interrogatories — Upon what matters — Privilege — In general — Penalty privilege — Whether penalty privilege available in relation to a claim for exemplary damages.

Evans J

The appellants are the defendants to an action for trespass in which the remedies sought against them by the plaintiffs, the respondents to this appeal, include a claim for exemplary damages. The defendants appeal against a decision that the plaintiffs' claim for exemplary damages does not provide the defendants with an entitlement to object to answer interrogatories delivered by the plaintiffs on the ground of the privilege against self-exposure to a penalty, ‘penalty privilege’.


The plaintiffs occupy and conduct a woodchip processing plant on land at Triabunna. By their amended statement of claim the plaintiffs allege that on 16 December 2008, the defendants trespassed upon the land by entering it without consent and caused the operations of the plant to cease for 6 hours and 40 minutes. The plaintiffs claim:

  1. ‘(a) damages for trespass;

  2. (b) aggravated and/or exemplary damages for trespass;

  3. (c) an injunction restraining each of the Defendants, as individuals or in combination with any of the other Defendants or with any other person from entering the land or any other land owned or occupied by any of the Plaintiffs in Tasmania without the express written permission of the Plaintiffs first had and obtained; …’


The plaintiffs have provided particulars of their claim in which they calculate the loss of profit arising from the period of the cessation of the plant's operations as $28,755. This is a claim for compensatory damages and provides no basis for an entitlement on the part of the defendants to penalty privilege.


Paragraphs 10 and 11 of the amended statement of claim relate to the claim for aggravated and exemplary damages. They are as follows:

‘10 The actions of the Defendants as pleaded in this statement of claim were undertaken as a conscious wrongdoing in contumelious disregard of the rights of the plaintiffs and were calculated and/or likely to:

  1. (a) disrupt the business operations of the Plaintiffs conducted upon the land;

  2. (b) disrupt the lawful business operations of contractors engaged to deliver logs to the Plaintiffs for the purposes of the conduct of the business on the land; and

  3. (c ) require members of the Tasmania Police and/or officers of Workplace Standards Tasmania to spend time, trouble and expense in physically removing the Defendants from the land.

11 In respect of each of the matters pleaded at paragraph 10, the actions of each of the Defendants as pleaded in this statement of claim did have each of the consequences pleaded in that paragraph.’


The following particulars of par10 of the amended statement of claim have been provided by the plaintiffs:

‘Each of the defendants intended to enter the land and did so in furtherance of that intention. Each of the defendants knew that they did not have permission to enter the land. Even if the defendants did not intend that their actions would have each of the consequences pleaded at sub-paragraphs (a), (b) and/or (c), then such defendants must have known that their actions would be likely to have those consequences.’


By their defence, the defendants deny each paragraph in the amended statement of claim that contains an assertion in relation to their conduct, including an allegation that the defendants entered the plaintiffs' land without consent. The allegation of trespass is accordingly in issue.


The plaintiffs delivered interrogatories to each defendant, the first of which was: ‘Did you on 16 December 2008 enter the land?’ Each defendant objected to answering this interrogatory and further related interrogatories. The plaintiffs applied for orders that the defendants answer the interrogatories. The application was heard by Holt AsJ. In the course of that hearing the grounds raised by the defendants for objecting to answer the interrogatories included penalty privilege, and the privilege against self-incrimination. His Honour held that no defendant could rely on penalty privilege, but that some defendants could rely on the privilege against self-incrimination;Gunns Ltd v Alishah (No 2) [2009] TASSC 93. The same grounds of objection were considered and rejected in the course of an appeal from that decision heard by Porter J; Gunns Ltd v Alishah (No 4) 2010 [TASSC] 24. The appeal to this Court against the decision of Porter J, is confined to his Honour's decision that the defendants cannot rely upon penalty privilege.


It may be useful to identify some of the different claims to privilege that are sometimes referred to in litigation such as the present:

  • The privilege against self-incrimination. In Sorby v The Commonwealth of Australia (1983) 152 CLR 281, Gibbs CJ said of this privilege, at 288:

    ‘It has been a firmly established rule of the common law, since the seventeenth century, that no person can be compelled to incriminate himself. A person may refuse to answer any question, or to produce any document or thing, if to do so “may tend to bring him into the peril and possibility of being convicted as a criminal”:Lamb v. Munster.’

  • In the same case, Mason, Wilson and Dawson JJ said, at 309, that this privilege is not merely a rule of evidence applicable in judicial proceedings, but is capable of applying in non-judicial proceedings.

  • Legal professional privilege. In Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, Gleeson CJ, Gaudron, Gummow and Hayne JJ said, at pars[9] and [11]:

    ‘It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.

    Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity.’

  • Penalty privilege. The privilege against exposure to penalties flows from a principle that an order for discovery or for the administration of interrogatories should not be made ‘where the proceeding was of such a nature that it might result in a penalty’, Rich v Australian Securities and Investments Commission (2004) 220 CLR 129, Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ, at par[24], and Naismith v McGovern (1953) 90 CLR 336 at 341 – 2. This is not to say that penalty privilege is a substantive rule of law like the above privileges, having application beyond judicial proceedings, Rich (supra), par[24], and Daniels(supra), par[15].

  • Forfeiture privilege. The privilege against exposure to forfeiture is concomitant with penalty privilege, Rich(supra), pars[24] and [26], and Daniels(supra), par[13].

  • Ecclesiastical censure privilege. The privilege against self-exposure to ecclesiastical censure is referred to in Rich(supra), par[23], and Daniels(supra), par[13]. In Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, Murphy J said at 345 that this privilege should not be recognised as any part of the common law in Australia.


In this case the defendants' contention that they are entitled to claim in aid penalty privilege is based solely on the ground that the remedies sought against them by the plaintiffs include a claim for exemplary damages. (It is of no consequence that the plaintiffs also seek relief other than exemplary damages,Birrell v Australian National Airlines Commission (1984) 1 FCR 526 at 529 – 530.) The defendants contend that a claim for exemplary damages is a claim for a penalty and this entitles them to rely on penalty privilege. At issue is whether exemplary damages are a penalty for penalty privilege purposes. It is beyond question that there is a penal aspect to exemplary damages. In XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448, Brennan J said at 471:

‘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. InMerest v Harvey substantial exemplary damages were awarded for a trespass of a high-handed kind which occasioned minimal damage, Gibbs CJ saying:

“I wish to know, in a case where a man disregards every principle which actuates the conduct of gentlemen, what is to restrain him except large damages?”

The social purpose to be served by an award of exemplary damages is, as Lord Diplock said inBroome v Cassell & Co, “to teach a wrong-doer that tort does not pay”. The purpose of restraint looms large in the present case.’

See alsoUren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 131,...

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