"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?" (footnotes omitted).
936 That passage was referred to with approval in Lamb v Cotogno (1987) 164 CLR 1 at 9 and by Spigelman CJ in Anning, supra at 363.
937 Anning was the legal occupier of 92 acres at Wyee on which he had built a motorcycle track constructed with second hand tyres 1.68km long. It was used to train young motor cyclists. Others used the track as well. The property was also used for the storage of used tyres. Anning purchased used tyres which were delivered to the property by truck. At the relevant time he had been receiving at least one thousand tyres every week. The presence of the tyres was a worry to the Environmental Protection Authority (EPA). The EPA had been watching the road near the property. On 10 November 1995, a journalist - employee of TCN Channel Nine accompanied by a camera crew was waiting near the property. Upon a delivery of tyres arriving by truck and being admitted to the property by Anning and the truck and Anning leaving the area of the entrance gates a number of vehicles containing persons employed respectively by the EPA, the Lake Macquarie City Council, the NSW Police Service and TCN Channel Nine travelled through the entry gates onto the property. Anning began to sort the newly arrived tyres. Four camera men about 50 feet away held video cameras pointed towards him and filmed him. On asking and being told by an officer of the Lake Macquarie City Council that the camera men were the media Anning told them, "Get off the property, I don't want you here". A little later he came across the journalist and when she said that she wanted to do a story now he replied, "I just want you to go." At 349 the Chief Justice held that the implied licence was limited to entering the land to request permission to film but TCN Nine did not enter for that purpose. It entered to film the raid, record Anning's use of the land, and conduct such interviews as it could with a view to broadcasting a program.
938 I have narrated the background facts to show that Anning was a markedly different case from the present and in response to Mr Cox's contention that it should not be used as a guide as to amounts in the present case. However, the discussion of damages in the case is helpful.
939 At [178] the Chief Justice said:
"General damages should reflect the significant purpose of vindicating [Anning's] right to exclusive occupation. This requires a substantial award. (See Plenty v Dillon (1991) 171 CLR 635 at 654-655 per Gaudron J and McHugh J). I would assess such damages as $25,000."
940 The right of exclusive occupation was important in the present case. The first and third defendants intruded into the home occupied by Mr Cox and his daughter and in which they were working and carrying on business on behalf of Craftsman Homes Australia Pty Limited and, mainly, Ilvarity. The first and third defendants were aware that no such intrusion would have been permitted if the significance of the identities of Ms Stinson and Mr Fordham, their employment by the first defendant and their purpose had been known. Further once inside the premises Mr Fordham facilitated a further violation of Mr Cox's rights by admitting the camera crew. This was close to a virtual 'take-over'. The first and third defendants knew that Mr Cox would never have sanctioned this. The first and third defendants were slow to withdraw after being asked to leave and continued the intrusion from the doorway. A substantial award is required. I assess the general damages at $60,000 in the present case.
941 As to aggravated damages the Chief Justice in Anning at [179] said:
"This is also an appropriate case for aggravated damages. The hurt to feelings, humiliation and affront to dignity experienced by the respondent was aggravated by the way in which the appellant acted in the course of its trespass. It confronted the respondent with cameras rolling and indicated clearly that it was filming for purpose of broadcast to the public at large. Furthermore, whether before or after the confrontation with the respondent, it widened the trespass from merely approaching him and felt able to film elsewhere on the property, both in front of the stacks or tyres and in the interview with the truck driver. This conduct justifies an award of aggravated damages which I assess in the amount of $25,000."
942 The present case is also an appropriate one for aggravated damages. The hurt to feelings, humiliation and affront to dignity experienced by Mr Cox was aggravated by the way in which the first and third defendants acted in the course of their trespass. That included Mr Fordham letting the camera crew into the home at Edmondson Park, then, with cameras rolling, confronting Mr Cox with broad general allegations of poor work and an accusation of having left a trail of devastation and filming him. No prior notification was given. The statement that Mr Cox should answer questions rather than "running away" aggravated the hurt, especially when it was shouted out from the front door while Mr Fordham and the camera crew were hovering around. Mr Cox must have been aware that his reputation and the business in which he was deeply involved were being attacked and damaged.
943 The conduct of the first and third defendants justifies an award of aggravated damages which I assess at $50,000.
944 As to exemplary damages Spigelman CJ in Anning said at [180] - [188]:
"Exemplary damages are awarded for "conscious wrongdoing in contumelious disregard of another's rights" (Whitfeld v De Lauret & Co (1920) 29 CLR 71 at 77), a phrase which covers "at least the greater part of the relevant field": Gray v Motor Accident Commission (at 7 [14]). Other expressions used have included "high-handed, insolent, vindictive or malicious" conduct. (Uren v John Fairfax (at 129) per Taylor J. See also Gray v Motor Accident Commission (at 5 [8]-[12]).)
The conduct on the part of the appellant to which I have referred in my consideration of aggravated damages, is conduct of a character that could justify an award of exemplary damages. A number of additional factors could also support such an award.
The public appeal of a program like "A Current Affair", in the success of which the appellant has a clear financial interest, is significantly enhanced by actual footage of "dastardly deeds" and "guilty men" or "guilty women". Intrusion onto the respondent's land was an important part of the value to the appellant of its investment in the story, of a character that it could not obtain without committing a trespass.
Furthermore, the power of the mass media in comparison with an individual like the defendant is, in my opinion, a material consideration when determining whether conduct should be punished or should be deterred. In a democratic society power is not wielded only by instrumentalities of government. (Cf Uren v John Fairfax (at 130-131) per Taylor J.) High-handed conduct approaching arrogance may well be manifest by private corporations. (See, eg, Wasson v California Standard Co (1964) 47 DLR (2d) 71 esp at 79, 80, 86. Note XL Petroleum (at 461) "a large company" per Gibbs CJ.)
I would not, myself, have interfered with her Honour's award of exemplary damages on the basis that it was not open to her Honour to find that the circumstances were such as to justify such an award. In view of the errors of law committed by her Honour, the discretion falls to be re-exercised by this Court. I have come to the conclusion that, on balance, this is not an appropriate case to award exemplary damages.
Such damages are awarded rarely and require something more than a finding of fault. (See Gray v Motor Accident Commission esp (at 6[12], 9 [20]). See also Ellison v L [1998] 1 NZLR 416 at 419.) In my opinion, the appellant's conduct was not, in the circumstances of this case, of sufficient gravity to be described as contumelious disregard of the respondent's rights.
In reaching this conclusion I have in mind the fact that the conduct did not, for the reasons I have expressed above, affect privacy interests in the way an intrusion into a residence with respect to personal, rather than business, affairs would do. Furthermore, the issues involved raised matters of genuine public interest in the context of investigations by public regulatory authorities. Finally, the tone of the appellant's questioning, while forceful, was not insulting or overbearing.
The context of the confrontation is also of significance. At one point the respondent engaged the appellant's representatives in discussion about telling his side of the story. Furthermore, when specifically asked to leave, Ms Brown indicated that they would. There is no evidence that they did not do so promptly.
In all the circumstances, in my opinion, exemplary damages should not be awarded."
945 In the joint judgment of four Justices in Gray v Motor Accident Commission (1998) 196 CLR 1 at 7 this passage appears:
"In considering whether to award exemplary damages, the first, if not the principal, focus of the inquiry is upon the wrongdoer, not upon the party who was wronged. (The reaction of the party who is wronged to high-handed or deliberate conduct may well be a reason for awarding aggravated damages in further compensation for the wrong done. But it is not ordinarily relevant to whether exemplary damages should be allowed). The party wronged is entitled to whatever compensatory damages the law allows (including, if appropriate, aggravated damaged). By hypothesis then, the party wronged will receive just compensation for the wrong that is suffered. If exemplary damages are awarded, they will be paid in addition to compensatory damages and, in that sense, will be a windfall in the hands of the party who was wronged. Nevertheless, they are awarded at the suit of that party and, although awarded to punish the wrongdoer and deter others from like conduct, they are not exacted by the State or paid to it."
946 I have applied those principles. I would also refer to the discussion of exemplary damages and the reasons of Palmer J by Heydon JA in Harris v Digital Pulse Pty Ltd (2002-2003) 56 NSWLR at [241]-[256]