APPEALED FROM: Gunns Limited v Alishah (No 4) [2010] TASSC 24

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.

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

Judgment Number: [2010] TASFC 6

SYED ALISHAH, WARRICK JORDAN, PAUL ERIC KIMBELL, NATHAN HARRIS, LEE ANTHONY SARGENT, BRETT THOMPSON, NISHANT ALLAN DANT, URSULA DUBIEL MAJEWSKI, CHRISTOPHER JOSEPH MILLS, BENJAMIN HUW SHARP, MIRANDA KYMALEE GIBSON, WILLIAM HUGH MOONEY, RACHEL ALISON MARGARET LEWANDOWSKY

GUNNS LIMITED TASMANIAN PULP & FOREST HOLDINGS LTD

SYED ALISHAH, WARRICK JORDAN, PAUL ERIC KIMBELL, NATHAN HARRIS, LEE ANTHONY SARGENT, BRETT THOMPSON, NISHANT ALLAN DANT, URSULA DUBIEL MAJEWSKI, CHRISTOPHER JOSEPH MILLS, BENJAMIN HUW SHARP, MIRANDA KYMALEE GIBSON, WILLIAM HUGH MOONEY, RACHEL ALISON MARGARET LEWANDOWSKY

GUNNS LIMITED TASMANIAN PULP & FOREST HOLDINGS LTD

1 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".

2 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:

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

(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; ..."

3 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.

4 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:

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

(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

(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."

5 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."

6 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.

7 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.

8 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] HCA 10; (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] HCA 49; (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] HCA 42; (2004) 220 CLR 129, Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ, at par[24], and Naismith v McGovern [1953] HCA 59; (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] HCA 9; (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.

9 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] HCA 12; (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. In Merest 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 in Broome v Cassell & Co, 'to teach a wrong-doer that tort does not pay'. The purpose of restraint looms large in the present case."

See also Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 131, 137, 149 and 152, Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at 9, and Gray v Motor Accident Commission (1998) 196 CLR 1 at par[26]. It must be said, however, that it is overly simplistic to label exemplary damages as a penalty which is analogous to a penalty imposed for criminal conduct or a statutory offence. The obligation to pay exemplary damages arises from the commission of a tort in circumstances that justify an award of such damages. Whilst compensation is the dominant remedy, if not the purpose of the law of torts, fault still has a place in many forms of wrongdoing, Uren (supra) at 149, and amongst the purposes served by an award of exemplary damages is easing the instinct of the victim of a tort to take revenge and thereby discouraging resort to self-help, Lamb (supra) at 9.

10 The concept of penalty privilege was recognised prior to 1736, Smith v Read [1736] EngR 59; (1736) 1 Atk 527; 26 ER 332, and awards of damages of the nature of exemplary damages, which punish the wrongdoer, have been recognised since at least 1763: Wilkes v Wood [1763] EngR 103; (1763) Lofft 1; Huckle v Money [1799] EngR 225; (1763) 2 Wils KB 205; Rookes v Barnard [1964] UKHL 1; [1964] AC 1129 at 1221 - 1222, and Uren (supra) at 152.

11 Although the right to rely on penalty privilege and the right to claim exemplary damages have both been recognised by the courts for upwards of 250 years, the research of those involved in this case has not brought to light any authority that deals with the entitlement of the subject of a claim for exemplary damages to rely on penalty privilege. The entitlement in contention is accordingly novel and recognition of the entitlement would have far reaching effects on actions for torts. Whilst, in my experience, claims for exemplary damages are most frequently made in defamation actions, a cursory examination of recently published decisions in Australia shows that a wide range of actions may include such claims. Some examples are the following. Abel v Amaca Pty Ltd [2010] SADC 98 which deals with a claim for damages, including exemplary damages, for asbestosis-related diseases contracted by the plaintiff arising from his employment with James Hardy & Co Pty Ltd. MacDonald v Pubic Trustee [2010] NSWSC 684, which deals with an action against the Public Trustee for breaching its statutory and fiduciary duties and resulted in an order that it pay exemplary damages because of the need to deter it from contemptuously disregarding its duties. Su v So [2010] NSWCA 119, which relates to a plaintiff's claim for exemplary damages from both his former business partner and his former solicitor arising from a fraudulent transaction. P v R [2010] QSC 139, which deals with an action in which the plaintiff recovered damages, including exemplary damages, from a person who had sexually assaulted her. New South Wales v Corby [2010] NSWCA 27, which relates to a plaintiff's claim for exemplary damages on the basis that he had been assaulted by corrective service personnel and a police officer whilst in a police station. See also the wide range of cases in which exemplary damages have been awarded, detailed in Luntz, Assessment of Damages for Personal Injury and Death, 4th ed, Butterworths, at 1.7.2.

12 For the defendants in this case to be entitled to claim in aid penalty privilege, the proceeding brought against them by the plaintiffs must be "of such a nature that it might result in a penalty" Rich (supra), par[24], and Naismith (supra), 341 - 2. In R v The Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738, Isaacs J drew a distinction between a suit in respect of past and prospective injury to a civil right and a suit for a penalty, and said, at 742, in the context of the entitlement to rely on penalty privilege:

"There is an inherent distinction between a civil action to prevent or redress a civil injury on the one hand, and a civil action to recover a penalty on the other. In the latter case the whole and avowed object of the proceedings is the infliction of the penalty ..."

Straightforward as that observation is, it is not easy to apply, and, more importantly, it draws attention away from the real question in issue. In Rich (supra) it was held that proceedings that sought orders under the Corporations Act 2001 (Cth) disqualifying a person from acting in the management of a corporation were proceedings for a penalty and attracted penalty privilege. In that case Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said in pars[30] - [34]:

"30 The decisions of the primary judge and the majority in the Court of Appeal proceeded from the premise that a distinction between "punitive" and "protective" proceedings was possible and useful and that, when applied to the present proceedings, it led to the conclusion that the present proceedings have a protective not punitive purpose. There are several reasons to reject that reasoning.

31 First, adopting such a classification diverts attention from the relevant question which is whether the privilege against exposure to penalties applies. That requires consideration of the kinds of relief which are sought in the proceeding. Neither the purpose which the applicant may have in seeking relief of that kind, nor the effects on persons other than the appellants of obtaining that relief, bears upon whether the proceedings expose the appellants to penalties. Yet an attempt to classify the proceedings as 'punitive' or 'protective' appears to require consideration of only those purposes or effects. Thus it is said that to disqualify a person from managing a corporation protects shareholders or creditors of the corporations in which the person concerned would otherwise have held office. If a disqualification order has that effect, and it may well, that is not relevant to whether exposing the person concerned to the possibility of such an order being made is to expose that person to a penalty.

32 Secondly, and more fundamentally, the supposed distinction between 'punitive' and 'protective' proceedings or orders suffers the same difficulties as attempting to classify all proceedings as either civil or criminal. At best, the distinction between 'punitive' and 'protective' is elusive ...

33 Thirdly, and no less fundamentally, not only does the supposed distinction between punitive and protective procedures find no sure footing in the course of decisions concerning the application of the privilege against exposure to penalties, it is inconsistent with the principles revealed by those authorities.

34 Both the primary judge and the majority in the Court of Appeal pointed to cases in which it has been said that the purpose of disqualification orders made against directors or other officers of a company is to protect the public rather than to punish ... It by no means follows, however, that this leads to the conclusion that the privilege against exposure to penalties has some narrower or different application in connection with proceedings against officers of corporations from the application it would ordinarily have ...The question is how should the general principles of the privileges against exposure to penalties and forfeiture find application in the particular circumstances of these proceedings. That inquiry is not assisted by examining why the orders sought in the proceedings might be made or what purposes might be achieved by their making. Rather, attention must be focused upon the nature of the orders that are sought."

13 Consistent with the last three sentences quoted above, an inquiry as to whether the defendants are entitled to rely on penalty privilege must focus on the nature of the order sought against them, a claim for exemplary damages; and that inquiry is not assisted by examining why exemplary damages might be awarded, or what purpose might be achieved by such an award. On this basis, it is not to the point that considerations that enter into an award of exemplary damages include an intention to punish the defendant for conduct showing a conscious contumelious disregard for the claimant's rights, and deterring the defendant from similar conduct. That said, it is necessary to consider the nature of the various orders that have heretofore been recognised to attract an entitlement to claim penalty privilege. In Rich (supra), Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said, at par[26]:

"The penalties and forfeitures which attract the privileges include, but are not confined to, monetary exactions. The privilege against exposure to penalties has been applied in common informer proceedings and actions for monetary penalties or treble damages. But:

'[t]he term "penalty" was not used in courts of equity merely in the sense of an exaction pursuant to statute as a punishment for contravention thereof. It embraced the wider concept of penalty as understood in the law of relief in equity against the exaction of penal payments in contractual disputes and the forfeiture of property interests.'

That is why the privileges against exposure to penalties or forfeiture have been allowed in cases as diverse as those already mentioned and to cases of forfeiture of estate, as for simony, for infringing the Pluralities Act (1 & 2 Vict c 10), for breaches of covenants in leases, by marriage without consent, or by having acted as agent for the Confederate States of America. Moreover, the privilege against exposure to penalties has been held applicable to preclude an order for discovery by the debtor in a petition for bankruptcy on the basis that the loss of civil status consequent on bankruptcy is penal."

14 Common informer proceedings were proceedings brought by a private person suing for his or her own benefit to recover a statutory penalty, Halsbury's Laws of England, 3rd ed, vol 10, 554, par1023. In the distant past a very large number of statutes in England encouraged the public at large to enforce obedience to statutes by a promise of a share of the penalty imposed for disobedience, A History of English Law, Holdsworth, vol IV, at 356. The origins of penalty privilege are said to be found in the reluctance of the Court of Chancery to lend the aid of discovery proceedings to a common informer, Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Live-Stock Corporation (1979) 42 FLR 204, Deane J, at 208. See also Daniels (supra), at par[13]. However, in Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477, at 545, McHugh J said that it is now settled law that penalty privilege was adopted by the Court of Chancery from the courts of law, and referred to authorities including Pyneboard (supra) at 337. In Rich v Australian Securities and Investments Commission [2003] NSWCA 342; (2003) 203 ALR 671, McColl JA, observed at par[198] that this statement by McHugh J was not universally accepted. Whatever the origins of penalty privilege, the fact that a proceeding was brought by a common informer was a convenient means of identifying it as one which attracted that privilege. Nonetheless, in appropriate cases the privilege is available regardless of whether the pursuer is the Crown, a common informer or any other person, Rich (supra), par[24], and Naismith (supra), 341 - 2.

15 In this case, the plaintiffs' entitlement to recover the asserted penalty in question, exemplary damages, is not dependent upon a statute but the law of torts. This is of significance as, from my reading of the authorities, the only cases in which proceedings for a monetary exaction have been held to give rise to an entitlement to penalty privilege, are those where the asserted basis for the monetary exaction was statute based. Porter J made a similar observation in the decision under appeal at par[44], although he also referred to the fact that the term "penalty" extends to penalty payments in contractual disputes. For reasons to which I will return, I do not consider that there is any scope for the application of penalty privilege to an action to enforce a penalty provision in a contract. (Exemplary damages are not recoverable for a breach of contract, Gray (supra) at par[13].)

16 Common informer proceedings for a monetary exaction were inevitably statute based, and the cases I have read on monetary penalties and other monetary recoveries also have a statutory basis. Monetary penalty examples include: R v Associated Northern Collieries (supra), which involved an action to recover penalties under the provision of the Australian Industries Preservation Act 1906 (Cth); Refrigerated Express Lines Australasia Pty Ltd v Australian Meat and Live-Stock Corporation (supra) where the proceedings put the respondents at risk of being held liable for pecuniary penalties in later proceedings under the Trade Practices Act 1974 (Cth); Trade Practices Commission v Abbco Iceworks Pty Ltd [1994] FCA 1279; (1994) 52 FCR 96, where the proceedings directly exposed the respondents to pecuniary penalties under the Trade Practices Act; Australian Securities and Investment Commission v Mining Projects Group Ltd [2007] FCA 1620; (2007) 164 FCR 32, where the proceedings exposed the respondent to pecuniary penalties under the Corporations Act 2001 (Cth); and Harris v Ansett Transport Industries (Operations) Pty Ltd (1978) 45 FLR 469, Gapes v Commercial Bank of Australia Ltd (No 2) [1979] FCA 62; (1979) 38 FLR 431, and Birrell (supra), where in each case the applicant sought the imposition of a penalty against the respondent pursuant to the Conciliation and Arbitration Act 1904 (Cth). Examples in relation to monetary recoveries based on a statute include: Jones v Jones (1889) 22 QBD 425, where a statute entitled the plaintiff to triple damages for a pound breach and the rescue of items which had been distrained, it was held that triple damages amounted to a penalty; Hobbs & Co v Hudson (1890) 25 QBD 232, where a statute entitled the plaintiff to double the value of goods fraudulently removed by a tenant, it was held that the claim was a penal action; and Saunders v Wiel [1892] 2 QB 18, where a statute provided for the forfeiture of an amount not exceeding a specified sum of money in the event of a copyright infringement, it was held that this was a penalty. That a statute provides the basis for a claim for a monetary exaction does not necessarily mean that the claim is for a penalty. In Adams v Batley (1887) 18 QBD 625, it was held that a claim for an amount of not less than a sum fixed by statute for the infringement of a musical copyright was not a claim for penalty. Similarly, in Richmark Camera Services Inc v Neilson-Hordell Ltd [1981] FSR 413, it was held as to a claim in England for conversion damages pursuant to the Copyright Act 1956 that it was not a claim for a penalty, albeit that the damages were calculated without regard to the actual damage suffered by the copyright owner.

17 These decisions show that where an entitlement to rely on penalty privilege by reason of a monetary exaction has been established, a statute has provided the basis for the monetary exaction. The significance of a statutory basis for a monetary exaction that is said to be a penalty has been reflected in number of Rules of Court. In this jurisdiction, the Supreme Court Rules 2000 (Tas), r383(4)(a), provides that the requirement to make discovery does not "require ... a defendant to an action ... for the recovery of a penalty recoverable by virtue of an enactment to make discovery of any document". A similar provision was contained in the now repealed Rules of the Supreme Court 1965 (Tas), O33, r13(4)(a). The terms of these rules are the same as those of O24, r2(3), of the Rules of the Supreme Court 1965 in England, and a provision to the same effect was contained in the Supreme Court Rules 1970 (NSW), par23, r2(4). These provisions lend support to the proposition that where the claim in contention is for a monetary exaction, an entitlement to penalty privilege will only be established if the claim is statute based.

18 With respect to the above proposition it is necessary to address what was said in Rich, par[26], quoted in par[13] above. The term "penalty" as used in equity was not confined to an exaction pursuant to a statute as punishment for its contravention. The term extended to cover relief in equity against the exaction of penal payments in contractual disputes and the forfeiture of property interests. This extension of the term does not assist the defendants in this case. These proceedings are not in relation to a contractual dispute or the forfeiture of a property interest. Moreover, the fact that courts of equity embraced a wider concept of the term penalty when dealing with a defendant's claim for relief from a penalty payment in a contract has not, so far as I am aware, been held to entitle a defendant to the benefit of penalty privilege. After all, the recognition of such an entitlement would be futile as, if the contractual provision in question was in fact a penalty provision, it would be unenforceable, or perhaps void, ab initio, Amev-UDC Finance Limited v Austin [1986] HCA 63; (1986) 162 CLR 170, Mason and Wilson JJ, at 192. In that event the defendant could not be at risk of incurring a penalty.

19 All of the cases, of which I am aware, that have allowed a person resisting a claim for a monetary exaction to rely on penalty privilege have involved a claim based on a statute. No decision of which I am aware directly suggests, let alone holds, that a claim for exemplary damages is a claim for a penalty that entitles the person resisting it to rely on penalty privilege. The contrary is assumed to be so in Luntz, Assessment of Damages for Personal Injury and Death, 4th ed, Butterworths, at 1.7.9, where it is said that a defendant to a claim for exemplary damages may be ordered to answer interrogatories. The relevant passage is:

"Many judges, law reform agencies and academic writers have objected to the availability of exemplary damages. The main objection is that the doctrine of exemplary damages confuses the functions of the criminal and civil law, which are said to be respectively punishment and compensation. Punishment, it has been thought, should be confined to the sphere of the criminal law because in civil proceedings a defendant is exposed to risks against which the safeguards of a criminal trial are designed to protect. Thus the defendant may be ordered to answer interrogatories, ..."

A similar assumption is made by Murphy J in Pyneboard (supra) at 346, where his Honour contrasts the ability to rely on the fact that a civil action is for a penalty with the inability to rely on the fact that it is for punitive damages. The relevant passage is:

"It is an absurd state of the law if a witness, in a civil or criminal trial, can lawfully refuse to answer because the answer may tend to expose him or her to some ecclesiastical censure, or to forfeiture of a lease, or to a civil action for penalties, but may not refuse if the exposure is to some other civil loss, such as an action for damages, even punitive damages."

Much the same assumption is made in a preliminary paper published by the New Zealand Law Commission, NZLC PP25, titled The Privilege Against Self-Incrimination. A question addressed in the paper is whether penalty privilege should be extended to cover liability for compensatory and punitive damages. In the course of concluding that it should not apply to compensatory damages or be extended to encompass punitive damages, the following is said at pars184 and 185:

"184 There are good reasons why the privilege does not apply to compensatory damages in civil proceedings. An extension to the penalty privilege to take in civil actions would give the privilege an unjustifiably broad span, especially when compared to the burgeoning number of statutory powers which require individuals to supply information. It would, for example, enable a defendant in civil proceedings to refuse to answer any questions focusing on his or her alleged negligence or wrongdoing, because of the risk that the plaintiff might be awarded damages.

185 The aim of punitive damages is in part to punish the defendant, but they also have the effect of compensating the plaintiff. In addition, they are seldom awarded and it may be difficult to assess whether there is a real risk of the imposition of such penalties in a particular situation. In other words, it would be difficult to ascertain when a claim to the penalty privilege, based on the risk of liability to punitive damages, was legitimate. For these reasons, the Commission does not propose extending the privilege to encompass protection from liability to punitive damages."

20 I conclude from my review of the authorities that an award of exemplary damages is not an award of the nature that attracts the application of the general principles of penalty privilege. Accordingly, I would dismiss the appeal.

SYED ALISHAH, WARRICK JORDAN, PAUL ERIC KIMBELL,

NATHAN HARRIS, LEE ANTHONY SARGENT, BRETT THOMPSON,

GUNNS LIMITED TASMANIAN PULP & FOREST HOLDINGS LTD

21 I agree that this appeal should be dismissed, for the reasons stated by Evans J.

SYED ALISHAH, WARRICK JORDAN, PAUL ERIC KIMBELL, NATHAN HARRIS, LEE ANTHONY SARGENT, BRETT THOMPSON, NISHANT ALLAN DANT, URSULA DUBIEL MAJEWSKI, CHRISTOPHER JOSEPH MILLS, BENJAMIN HUW SHARP, MIRANDA KYMALEE GIBSON, WILLIAM HUGH MOONEY, RACHEL ALISON MARGARET LEWANDOWSKY

GUNNS LIMITED TASMANIAN PULP & FOREST HOLDINGS LTD

22 I have had the opportunity to read the draft reasons of Evans J. I agree with those reasons. I would also dismiss the appeal