Whitbread & Anor v Rail Corporation NSW & Ors

Rail Corporation New South Wales (First Respondent to First and Second Appellant) Andrew Schofield (Second Respondent to First and Second Appellant) John Borchard (Third Respondent to First and Second Appellant) Christopher Sanderson (Fourth Respondent to First and Second Appellant) Geoffrey Blight (Fifth Respondent to Second Appellant) Representation: Counsel: M Neil QC/ M Thompson (Appellants) D Hooke SC/ D Sulan (Respondents) Solicitors: Gerard Malouf & Partners (Appellants) Hicksons Solicitors (Respondents) File Number(s): 2009/298119 2009/298120 Decision under appeal Jurisdiction: 9101 Date of Decision: 2008-10-14 00:00:00 Before: O'Connor DCJ File Number(s): 2009/40005 2009/40006

Judgment 1GILES JA : I have had the benefit of reading in draft the reasons of Whealy JA, and the reasons of McColl JA as to exemplary and aggravated damages. I agree with Whealy JA, including that the conduct of Schofield was not such as to warrant exemplary damages and that the trial judge did not err in taking account, as relevant factors but by no means determinative, of the plaintiffs' behaviour and the criminal and disciplinary proceedings against Schofield. I would observe that the question in Niven v SS [2006] NSWCA 338 was whether the subsequent acquittal was a bar to exemplary damages, not whether regard could be had to the subjection to the criminal process. 2I agree with the orders proposed by Whealy JA. 3McCOLL JA: I have read Whealy JA's reasons. I agree with his Honour's reasons save as to the issue of aggravated and exemplary damages. I shall not repeat the facts save to the extent necessary to explain my reasons.

Exemplary damages 4It is convenient to deal first with exemplary damages. 5Both appellants' claims for exemplary damages were based, in part, on Schofield's physical attack on them (described in their pleadings as unprovoked), its gravity, the physical injury the appellant suffered and the contemptuous manner in which the respective appellant's rights were abused. 6Whealy JA has set out (at [115]) O'Connor DCJ's reasons for rejecting the appellants' claims for exemplary damages. 7It is not, with respect, clear why the primary judge refused to award exemplary damages. His Honour referred to the facts that the power to award such damages should be exercised with restraint, that such damages were only awarded when the defendant's conduct was of such a character that it merited punishment in the sense that it must have been knowingly wanton, fraudulent, malicious, violent, cruel, insolent, highhanded or an abuse of power and to the relevance of the abusive and belligerent behaviour "of the plaintiff". His Honour also took into consideration "the fact that [Schofield] was prosecuted for assault on both plaintiffs and found guilty of those offences in the Local Court" - although he noted that the conviction in respect of Christian was quashed on appeal to the District Court while "[t]he finding of guilt in respect of Sebastian Whitbread was confirmed, but his conviction was quashed pursuant to the provisions of s 10 of the Crimes (Sentencing Procedure) Act ." His Honour referred to the fact that Schofield "was also subject to disciplinary proceedings and suspended from his employment". 8The primary judge did not, however, indicate which of these factors he regarded as determinative against an award of exemplary damages. 9I will discuss each matter the primary judge mentioned in these reasons. Before doing so three factual matters should be mentioned. 10First, it is relevant to recall the primary judge's findings based on his review of the CCTV footage of Schofield's attack on the appellants: "The CCTV does not reveal any physical act of aggression by either plaintiff before Schofield lunged at Sebastian. There is no suggestion in any of the statements in exhibit H that either plaintiff punched or struck any of the transit officers." 11His Honour's observations accord with my viewing of the CCTV footage. The incident is also, in my view, captured in still photographs which were tendered at trial. I am conscious of the need for restraint in using photographic evidence and refer to them as explicating the evidence of the circumstances in which Schofield assaulted each appellant: see generally Blacktown City Council v Hocking [2008] NSWCA 144. 12The photographs show that immediately before the incident the appellants were standing with their arms straight beside them while the man identified as Schofield is both speaking (apparently to Sebastian) and gesturing with his right arm. In addition to Schofield, eight burly uniformed men surround the appellants - they were, as the primary judge found "clearly outnumbered". There is a distance of possibly a metre or so between Schofield and Sebastian who appeared to be more opposite Schofield than Christian who was to one side. That distance was bridged when Schofield lunged at Sebastian and grabbed him by the throat and then forced him to the ground, at which stage it appears other uniformed men moved in to control him physically. Christian moved towards Schofield and Sebastian while the former still appears to be restraining Sebastian in the vicinity of his upper body. It is apparent that Christian is verbally remonstrating with Schofield when the latter seizes him by the arm and commences throwing him to the ground. Although this does not appear from the still photographs, it is uncontroversial that in the course of this incident Schofield grabbed Christian's head and slammed it into the ground as well as slapping his face two or three times with the back of his hand, causing his lip to bleed. 13The second factual matter concerns the question of the criminal proceedings against Schofield. His Honour said in this respect: "I also take into consideration the fact that the second defendant was prosecuted for assault on both plaintiffs and found guilty of those offences in the local court. The second defendant appealed to the District Court and the conviction in respect of Christian was quashed. The finding of guilt in respect of Sebastian was confirmed, but his conviction was quashed pursuant to the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999. Nevertheless, such matters remain on the criminal record of the second defendant and in that sense could be regarded as a punishment as a result of the events of that evening ." (emphasis added) 14There was no evidence at trial about any criminal proceedings against Schofield. Mr Thompson, who appeared for the appellants at trial, sought to tender records produced by the District Court which appear to have related to some such proceedings but counsel for the respondents objected and the tender was rejected. The primary judge's statements in the judgment concerning Schofield's prosecution appear to have been drawn in part from the debate which took place surrounding the unsuccessful tender, although I would note that the matter I have emphasised in quoting his Honour's statement was not referred to during that debate. 15It should also be noted that the respondents did not rely at trial on any suggestion that there had been criminal proceedings against Schofield as a reason for defeating the exemplary damages claims. The written and oral submissions record that the respondents sought to meet that claim by relying on the propositions that such damages are rarely awarded and the appellants' conduct prior to the assault should be taken into account. 16The third factual matter concerns the primary judge's reference to Schofield having been subject to disciplinary proceedings. 17There was some, albeit scant, evidence of what Rail Corporation New South Wales ("RailCorp") did in relation to Schofield in relation to the incident. On 18 March 2004 RailCorp wrote to Schofield referring to "a report of [his] behaviour towards two (2) customers at Gosford Station on 13 th March 2004 at approximately 4.00am" and advising him he was temporarily suspended with pay until further notice, while a Disciplinary Investigation was conducted. In April 2004 a "Report of a Preliminary Inquiry into and Incident at Gosford Station involving Transit Officers" found that "[t]he evidence supports a finding that STO Schofield appears to have breached the Code of Workplace Standards by assaulting both Sebastian and Christian Whitbread." The report recommended: "STO Schofield is advised in writing of the particulars of the alleged breaches of the Code of Workplace Standards pertaining to his alleged assaults on Sebastian and Christian Whitbread and a written response sought. On receipt of the written response, STO Schofield should be requested to attend a Disciplinary Interview. A determination should then be made as to what disciplinary action, if any, is required." (emphasis in original) 18There was no evidence as to what, if anything, happened in relation to this recommendation. There was no evidence that Schofield was subjected to any formal disciplinary proceedings. Finally I would note, again, that it does not appear from the written or oral submissions at trial that the respondents relied upon there having been any such proceedings to defeat the exemplary damages claims.

Legal Principles 19Exemplary damages are awarded "as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself": Wilkes v Wood [1763] EngR 103; (1763) Lofft 1 (at 19) (98 ER 489, at 498-499) per Pratt LCJ cited with approval in the joint judgment in Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 (at 8). Such damages will be awarded where a defendant engages in conduct "variously described as 'wanton and malicious', as 'conscious wrongdoing in contumelious disregard of the plaintiff's rights', as 'outrageous', 'atrocious', 'vindictive', 'arrogant', 'high handed' or 'insolent' ": Lamb v Cotogno (at 3). While "it may be doubted whether a single formula adequately describes the boundaries of the field in which they may properly be awarded. ... the phrase ... of 'conscious wrongdoing in contumelious disregard of another's rights' describes at least the greater part of the relevant field": Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 (at [14]) per Gleeson CJ, McHugh, Gummow and Hayne JJ. 20Exemplary damages are awarded rarely. Something more must be found than a mere finding of fault: Gray (at [12]). The remedy is exceptional in the sense that it arises (chiefly, if not exclusively) in cases of conscious wrongdoing in contumelious disregard of the plaintiff's rights: Gray (at [20]). The intent or recklessness necessary to justify an award of exemplary damages may be found in contumelious behaviour which falls short of being malicious or is not aptly described by the use of that word: Lamb v Cotogno (at 13). 21In 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": Gray (at [15]; (at [31]) "the conduct of the wrongdoer is central to that enquiry") per Gleeson CJ, McHugh, Gummow and Hayne JJ. In contradistinction, in the case of aggravated damages the assessment is made from the point of view of the plaintiff: State of New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168 (at [83]) per Spigelman CJ; referred to with approval in New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638 (at [34]). 22An illustration of the extent to which an award of exemplary damages focuses on the wrongdoer can be seen in passages from two English decisions both cited with approval in New South Wales v Ibbett (at [39] - [40]). The first is by Lord Devlin in Rookes v Barnard [1964] UKHL 1; [1964] AC 1129. His Lordship, as the High Court observed, "was no supporter of the general use of [the] remedy" of exemplary damages. However he said, in Rookes v Barnard (at 1223), that he would not wish "to diminish its use in this type of case where it serves a valuable purpose in restraining the arbitrary and outrageous use of executive power" and (at 1226) that such damages should be awarded in the case of "oppressive, arbitrary or unconstitutional action by the servants of the government". His Lordship contrasted the law's attitude to an abuse of power by a private citizen to that by a servant of the government: "Where one man is more powerful than another, it is inevitable that he will try to use his power to gain his ends; and if his power is much greater than the other's, he might perhaps be said to be using it oppressively. If he uses his power illegally, he must of course pay for his illegality in the ordinary way; but he is not to be punished simply because he is the more powerful. In the case of the government it is different, for the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service." 23The second decision is Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29; [2002] 2 AC 122 in which Lord Hutton discussed Lord Devlin's statement in Rookes v Barnard concerning the valuable purpose served by an award of exemplary damages and concluded: "[75] ... I think that a number of cases decided by the courts in Northern Ireland during the past 30 years of terrorist violence give support to the opinion of Lord Devlin in Rookes v Barnard [1964] AC 1129, 1223, 1226 that in certain cases the awarding of exemplary damages serves a valuable purpose in restraining the arbitrary and outrageous use of executive power and in vindicating the strength of the law. Members of the security forces seeking to combat terrorism face constant danger and have to carry out their duties in very stressful conditions. In such circumstances an individual soldier or police officer or prison officer may, on occasion, act in gross breach of discipline and commit an unlawful act which is oppressive or arbitrary and in such cases exemplary damages have been awarded. ... [79] In my opinion the power to award exemplary damages in such cases serves to uphold and vindicate the rule of law because it makes clear that the courts will not tolerate such conduct. It serves to deter such actions in future as such awards will bring home to officers in command of individual units that discipline must be maintained at all times." 24Lord Hutton's remarks, as was pointed out in New South Wales v Ibbett (at [52]), were to similar effect as Priestly JA's statement in Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78 (at [36]) when delivering the principal reasons: "That figure [of exemplary damages] should indicate my view that the conduct of the [police officer] defendants was reprehensible, [and] mark the court's disapproval of it. The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses of the kind that occurred in the present case do not happen." 25After referring to the fact that a like approach to that of Priestley JA and Lord Hutton had been taken in Peeters v Canada (1993) 108 DLR (4th) 471, the plurality held ( New South Wales v Ibbett ( at [54])) that the approach taken in cases such as Adams and Peeters should be accepted.

Characterising Schofield's conduct 26In finding that Schofield assaulted the appellants, the primary judge said: "I am satisfied that the aggressor in the situation was ... Schofield. Without warning to either of the plaintiffs, or indeed the other transit officers present, he lunged at Sebastian, connecting with his throat and neck ... No physical violence at that point, or before, had been offered by either plaintiff. They were surrounded by transit officers ... I am of the view that the defendants were entitled to remove the plaintiffs from the railway property. I am of the view, however, that the second defendant, Transit Officer Schofield, assaulted both plaintiffs in the course of the removal process. There was no necessity for such a violent reaction. The plaintiffs were clearly outnumbered and it seems to me they could have been physically escorted and restrained without the necessity for the violence exhibited by the second defendant. " 27Further, in considering both appellants' aggravated damages claims, the primary judge found that Schofield's conduct was "high-handed". His Honour found that the assault on Sebastian was "a frightening experience" which was "unnecessary and unjustified". Insofar as Christian's claim was concerned, his Honour found that Schofield's conduct in striking him in the face and slamming his head into the ground was "inappropriate and regarded as such by a number of transit officers". 28Conduct which attracts the epithet "high-handed" falls within that class described as demonstrating a contumelious disregard of the plaintiff's rights which would attract an award of exemplary damages: Lamb v Cotogno (at 3); Fontin v Katapodis [1962] HCA 63; (1962) 108 CLR 177 (at 187) per Owen J; Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 (at 130 ) per Taylor J; (at 146) per Menzies J; (at 161) per Owen J. It is not to point that the primary judge attached that description to Schofield's conduct when considering the aggravated damages claim. The same circumstances might justify either an award of exemplary or aggravated damages: Uren v John Fairfax & Sons Pty Ltd (at 130) per Taylor J; referred to with approval in New South Wales v Ibbett (at [33] - [34]). The same facts may be relevant to both heads of damage because of the different focus of each award: State of New South Wales v Ibbett (at [83]) per Spigelman CJ. 29There was, in my view, ample evidence to conclude that Schofield's conduct in striking each appellant demonstrated conscious wrongdoing in contumelious disregard of another's rights. This may, in my view, be concluded from the primary judge's characterisation of him as the aggressor and his conduct as high-handed, unnecessary, unjustified and inappropriate. While the appellants had behaved objectionably throughout the evening in verbal exchanges with the respondents, they had not given any indication that they were moving to a physical confrontation. Their stance, as the primary judge found, did not reveal any act physical violence. 30Schofield was in a position of power and, in my view, he abused that position. It is not, with respect, in my view sufficient to excuse his conduct on the basis that he "simply lost his temper": cf Whealey JA (at [228]). No doubt that was true of the defendant in Lamb v Cotogno but that did not deprive the plaintiff of an award of exemplary damages - although the plaintiff's conduct led to a reduction of the award in Fontin . Schofield was required to subordinate his power to his duty of service - no matter how unpalatable that notion may have been to him in the circumstances in which he found himself - and to restrain his anger. As the extracts from Kuddus (above) and Pettigrew v Northern Ireland Office [1990] NI 179 (below) demonstrate, courts in the United Kingdom have found persons in similar positions to Schofield with power and responsibility to ensure the keeping of the peace, liable for awards of exemplary damages for reacting violently in situations far more stressful I venture to say than that in which Schofield found himself on 13 March 2004. The community is entitled to expect those charged with the power of keeping the peace in public places exercise that power in a disciplined manner, notwithstanding their exposure to stressful behaviour from members of the public. 31Prima facie, therefore, in my view each appellant was entitled to an award of exemplary damages in respect of Schofield's assault upon him. 32I turn to consider whether that conclusion should be displaced by any of the maters of defeasance to which the primary judge referred: provocation by the appellants and criminal and/or disciplinary proceedings against Schofield.

Provocation 33An award of exemplary damages may be mitigated or reduced if it is found that the plaintiff has provoked the assault and battery complained of: Fontin v Katapodis (at 184) per McTiernan J. 34That a court should not readily conclude that a plaintiff has provoked a violent assault can be seen from two cases. In Lamb v Cotogno the High Court rejected a challenge to an award of exemplary damages notwithstanding that the defendant's assault of the plaintiff was a reaction to being pursued by the latter who was threatening to kill him. 35In Kuddus , Lord Hutton illustrated the circumstances in which exemplary damages may be awarded notwithstanding considerable provocation by reference to his decision in Pettigrew v Northern Ireland Office as follows: "77. In Pettigrew v Northern Ireland Office [1990] NI 179 there had been a mass escape of convicted terrorist prisoners from H Block 7 in the Maze Prison. In the course of the escape one prison officer died, one prison officer in H Block 7 was shot in the head and seriously wounded and other prison officers were injured. When the prisoners escaped from H Block 7 they left a number of prison officers tied up. It was clear that some of the prisoners who remained in H Block 7 had helped in varying degrees those who succeeded in escaping. After the escape the remaining prisoners in H Block 7 were moved to H Block 8. 78. The plaintiff, who was one of the remaining prisoners moved to H Block 8, brought an action against the Northern Ireland Office for damages for assault and battery by prison officers, alleging that in the course of the move he had been kicked and punched by prison officers and that prison officers who were dog-handlers had not restrained their dogs from nipping and biting him. In the High Court it was held that it was probable that prison officers, angered by the death of a colleague and the wounding of other colleagues in the course of the escape, had given vent to their anger by kicking or punching the plaintiff and that dog handlers had failed adequately to restrain their dogs. The plaintiff was awarded exemplary damages and I refer, if I may, to what I said in giving judgment, at pp 181-182: 'In this case I consider that the conduct of the dog handlers who deliberately did not restrain their dogs from nipping or biting the plaintiff and the conduct of the prison officers who kicked or punched the plaintiff was oppressive conduct by servants of the Government. Notwithstanding that the prison officers had real and understandable grounds for anger, it was their duty to restrain that anger, and in my opinion their conduct calls for an award of exemplary damages to mark the disapproval of the court, to teach that such conduct does not pay, and to act as a deterrent against this type of conduct against prisoners being repeated in the future.' " (emphasis added) 36Kuddus illustrates, in my view, that a court should be cautious about rejecting a claim for exemplary damages or reducing such an award in cases where the conduct ascribed to the plaintiff is of the very sort the defendant should expect to encounter and be equipped to handle in a disciplined manner. To accede too readily to such a submission has the potential of deflecting attention from the conduct of the wrongdoer to that of the victim. In civil proceedings provocation can be taken into account, as it was here, when considering a claim for aggravated damages where, as I have said, the assessment is made from the point of view of the plaintiff. 37In my view the verbal abuse in which the appellants had engaged to varying degrees during the exchanges which preceded the assaults did not constitute provocation which should bar or reduce any award of exemplary damages - or, to put it in a way which focuses on Schofield's conduct - the appellants' conduct does not detract from the conclusion that the Court should mark its disapproval of Schofield's conduct by such an award. The two earlier incidents in which Schofield had interacted with the appellants had both been resolved, as Whealy JA has found (at [137]), "relatively amicably". Schofield had been present at the exchange which preceded the assaults for about three minutes before attacking. I do not accept that the evidence supported a conclusion that the appellants' conduct provoked a violent assault of the nature in which Schofield engaged. Further, insofar as Christian is concerned, apart from possibly swearing at a time when the brothers were told to leave the station to finish their drinks - a direction with which he complied - there was no evidence, in my view, that he had engaged in any conduct of a belligerent let alone provocative nature. At the moment Schofield struck Christian, he appeared from the still photographs to step forward to remonstrate verbally as one would expect a brother to do. Some of the transit officers did not even observe that. Rather, for example, Transit Officer Sidhu said: " ... Schofield suddenly extended his right arm towards the neck of Sebastian, following which Sebastian fell backwards. He then saw Sinha and Borchard remove Sebastian. He then saw Schofield move towards Christian and move his hand in a backward action. He did not see the hand connect with Christian, but he fell down, straight away." 38Similarly, Transit Officer Singh said: "Schofield said something to Sebastian. He heard Sebastian reply something like, 'You can't touch me, I'll kill you.' He said that about fifteen or twenty seconds after Sebastian spoke to Schofield, Schofield raised his right hand and moved it towards Sebastian's upper chest area, He said he saw Sebastian move 'a little bit back'. He said he saw Schofield slap Christian two or three times with the back of his hand. He said that Christian started bleeding from the inside of the lip just after that. . He said he told Schofield, in relation to him hitting Christian, 'Don't do that.' He said that Schofield told him that Christian was grabbing his leg." 39It does not appear that Transit Officer Singh had observed anything which would warrant an assault on Christian. Other versions of the transit Officers statements are set out by Whealy JA (at [85]). None of them attribute belligerent behaviour to Christian. The highest it can be out in my view is that after Schofield struck his brother, Christian went to his brother's assistance and at some stage was hanging on to Schofield's leg (presumably to prevent him from attacking Sebastian again) - a position rendering him vulnerable to the assault Schofield then inflicted on him - rather than putting him in a position of threatening Schofield with harm. The primary judge did not regard Christian's conduct in hanging on to Schofield's leg as justifying Schofield's assault.

Criminal proceedings 40It is apparent from Gray (at [46]) that if criminal proceedings are to be relied upon to defeat a claim for exemplary damages, the defendant must prove the criminal charges, alleged the same conduct as alleged in the civil proceedings. That is what happened in Gray by the tender of the certificate of conviction of the wrongdoer and the sentencing remarks relating to him as evidence of the truth of their contents . 41I have already observed that there was no evidence about the criminal proceedings in relation to Schofield. However the appeal was conducted on the basis that the primary judge did not err in his recitation of the facts surrounding such proceedings, but did err by having regard to Schofield's prosecution itself and him being found guilty in the Local Court. The appellants complained that a prosecution per se is not a penalty and, further that even if Schofield was convicted in the Local Court, on appeal from the conviction in respect of Sebastian he was dealt with pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Under that provision the court does not proceed to a conviction even though it finds a person guilty of an offence. It has three options as to what order it may make in such circumstance. Nothing in the Court's papers indicates what course was taken in Schofield's case in this respect. 42Insofar as Christian was concerned the primary judge concluded that Schofield's conviction was "quashed". Quite what that meant was not apparent. On an appeal to the District Court from a Local Court conviction, the District Court has a range of powers including setting aside the conviction: s 20(1)(a), Crimes (Appeal and Review) Act 2001 (NSW). I will assume that this is what the primary judge was referring to. If the conviction was set aside, prima facie it would appear that Schofield was acquitted - a conclusion which accords with Whealy JA's (at [234]). I shall return to the significance of this. 43The plurality concluded in Gray (at [40]) that exemplary damages may not be awarded where, as in that case, the criminal law had been brought to bear upon the wrongdoer and substantial punishment inflicted. It was not difficult to conclude in Gray that substantial punishment had been inflicted upon the wrongdoer who had been convicted of causing grievous bodily harm with intent to cause grievous bodily harm to the plaintiff and was sentenced to seven years imprisonment. Moreover the Court was able to discern whether the facts which formed the basis for the wrongdoer's conviction and sentence were those relied on in the civil proceedings because, as i have said, the certificate of his conviction and the sentencing remarks relating to him were tendered by consent of the parties as evidence of the truth of their contents: Gray (at [2]) . Because there was no doubt about the severity of the wrongdoer's punishment, the plurality did not (at [44]) find it "necessary to decide whether the bar arises only where the punishment is 'substantial' or how close must be the similarity between the conduct that is the subject of the two proceedings." However it is clear that to raise the bar the plurality judgment contemplated (at [40]), it must be possible to determine the wrongdoer has suffered "substantial punishment" and that there is " 'substantial identity' between the conduct that is the subject of the criminal and civil proceedings": Gray (at [45]). 44The plurality referred to, but did not determine, what may be the consequences in cases where the question whether "substantial punishment" had been imposed was debateable, or there was, in effect, a plea bargain or only a nominal penalty was imposed. Their Honours did not leave lower courts entirely in the dark on such matters however. They pointed out (at [46]) that: "if criminal charges, alleging the same conduct as is alleged in a civil proceeding, have been brought and proved, it would be a most unusual case in which it was open to a civil court to conclude that the outcome of those criminal proceedings did not take sufficient account of the need to punish the offender and deter others from like conduct..." (emphasis added) 45It is significant, in my view, that the plurality clearly regarded the fact the criminal charges were proven, without referring to any punishment imposed, as debarring a civil court save in exceptional circumstances from itself imposing an award of damages which was punitive in nature. Similar reasoning can be seen in the Privy Council's decision in W v W [1999] 2 NZLR 1, an appeal from the decision of the New Zealand Court of Appeal in Daniels v Thompson [1998] 3 NZLR 22, to which I refer below. In W v W (at 3), Lord Hoffman, in delivering the judgment of their Lordships said: "... [T]here can be no doubt that allowing an action for exemplary damages to follow or precede a criminal punishment carries the risk that a person may be punished twice for the same offence. ... [P]rima facie it must be assumed that the criminal punishment was considered by the Court to be appropriate to the offence and the offender. To award exemplary damages at all would imply that the civil Court thought that the criminal punishment had been inadequate. There is an additional problem when a criminal prosecution follows a civil action. Logically, the criminal punishment should take into account the exemplary damages which have been awarded but there is an argument for regarding criminal proceedings in the name of the state as having primacy over a private action." (emphasis added) 46The plurality also observed (at [46]) that "[o]ther considerations may well arise if relevant criminal proceedings ended in the accused's acquittal". Their Honours did not deal with those considerations but referred in a footnote to that paragraph to Daniels v Thompson (at 50 - 52) per Richardson P, Gault, Henry and Keith JJ; and to Thomas J's dissenting reasons (at 77). 47Daniels v Thompson concerned the question whether an action for exemplary damages could lie where the allegations forming the basis of a claim for exemplary damages constituted criminal offending. In particular, the court considered whether an action for exemplary damages was barred where the defendant had already been convicted and punished in respect of the same conduct in criminal proceedings or had been acquitted in the criminal jurisdiction of a charge arising from the acts which formed the basis of the claim or where there was the commencement of, but no concluded, criminal prosecution. 48Relevantly, the Court held (Richardson P, Gault, Henry and Keith JJ, Thomas J dissenting) that that a claim for exemplary damages should be struck out as an abuse of process if the defendant had been acquitted and essentially the same acts which constituted the criminal offending were relied upon in the civil proceedings. The Court undertook an extensive review of authorities in Australia, the United Kingdom (where the right to exemplary damages was substantially curtailed by the decision in Rookes v Barnard ), the United States and Canada. The plurality concluded (at 45) that no clear common line of authority was discernible and that there was a divergence of approach, as to both result and rationale. 49Insofar as the consequences of an acquittal were concerned, the plurality regarded the issue as "not free from difficulty", but concluded that it seemed "that where the criminal process has exonerated a person from alleged offending, then it becomes undesirable to allow what are substantially the same issues of fact to be relitigated for the sole purpose of exacting a punishment for their commission." Such relitigation would, in the plurality's view, offend the finality principle, and was inconsistent with the recognised purposes of the administration of justice: Daniels v Thompson (at 51). 50As Thomas J wrote in his dissenting reasons (at 55 - 56), the decision of the plurality was reached largely as a matter of public policy by according "[t]he role of the state in dealing with criminal conduct ... primacy, which is absolute where the defendant has been convicted, and effectively exclusive where he or she has been acquitted or could be liable to a criminal prosecution." His Honour preferred "a less radical approach" which, while accepting that an award of exemplary damages would be exceptional, would not impose an absolute bar on such a claim where the defendant has been convicted of an offence involving the same conduct, or which was part of the same conduct but would take into account the defendant's punishment in the criminal proceeding in determining whether an award of exemplary damages was appropriate. His Honour was reinforced in his view by the fact that it accorded with law reform commission reports completed after extensive consultation and review of authority: the Ontario Law Reform Commission, Report on Exemplary Damages (1991) and the Law Commission for England and Wales Consultation Paper no 132, Aggravated, Exemplary and Restitutionary Damages: A Consultation Paper , (1993) (LCCP No 132) which led to the report of the Law Commission for England and Wales, Aggravated, Exemplary and Restitutionary Damages, (LAW COM No 247). 51An appeal to the Privy Council from the decision in Daniels v Thompson was dismissed ( W v W ) in part because the Board took the view it would not substitute its own views (if different) on a matter of the policy of the law in a particular country. However the Board also considered the effect of an acquittal because the appellant submitted that the Court of Appeal's decision in that respect displayed an error of principle. In this respect the Board said (at 5): " It was argued that in the case of an acquittal, which may have been on technical grounds, there can be no question of double punishment. The accused has not been punished in the criminal Court at all. This is of course true, but Their Lordships consider that a need for consistency leads inexorably to the conclusion that an acquittal should also bar the civil remedy for exemplary damages. The decision to bar the remedy after conviction and punishment is plainly a matter of policy and the consistent application of such a policy requires that it should apply irrespective of the severity or lightness of the punishment imposed by the criminal Court. In each case, it will be the punishment which that Court considered appropriate to the offence and the offender and it should not be reconsidered by another Court. This must be the case even when the sentence is an absolute discharge. Having got to that point, Their Lordships consider that it would be illogical to bar an action against an accused who has been convicted and discharged but not against an accused who has been acquitted. Their Lordships think it would be impractical in this context to try to distinguish between technical acquittals and acquittals on the merits." 52This Court considered Daniels v Thompson in Niven v SS [2006] NSWCA 338. In that case the respondent commenced civil proceedings against the appellant alleging that when he was approximately 13 years old and in Year 7 at Bombala State High School, he was indecently assaulted several times by the appellant at his house in Bombala over a period of time. After those proceedings were commenced the appellant was charged with some 19 offences with respect to the respondent alleged to have taken place between 1 May 1997 and 30 September 1997, of which five were for aggravated sexual offence pursuant to s 61J(1) of the Crimes Act 1900 (NSW), three for aggravated indecent assault pursuant to s 61M(1) of the same Act and one for incite person aged under 16 years to commit an act of indecency pursuant to s 61N(1) of that Act (the criminal proceedings). The assaults the subject of the criminal proceedings were relevantly identical to those the subject of the civil proceedings: Niven (at [6]). 53The criminal proceedings had not been listed for hearing at the time the civil proceedings came on for hearing. The trial judge rejected an application for a stay of the civil proceedings until after the completion of the committal hearing. He then heard the case, accepted the respondent's evidence that he had been sexually assaulted by the appellant on at least five occasions and assessed damages in the sum of $386,000 which included an award of $60,000 by way of exemplary damages. 54On appeal the appellant submitted that the award for exemplary damages was bad in law, being contrary to the principle that exemplary damages should not be awarded if the defendant has already been punished in criminal proceedings - a principle it was submitted that should be extended to situations where the defendant was facing criminal prosecution and hence the possibility of punishment: Niven (at [46]). 55In the course of the appeal in Niven , it emerged that the appellant had been acquitted in the criminal proceedings of the charges which concerned his conduct in respect of the respondent. He submitted that the Court should apply the second principle established in Daniels and strike out as an abuse of process the claim for exemplary damages having regard to his acquittal of essentially the same conduct in a criminal proceeding - even though the acquittal occurred after the conclusion of the civil trial: see Niven (at [60]). 56Tobias JA (with whom Beazley and Giles JJA agreed) rejected that submission. His Honour was not prepared to accede to the appellant's submission "that this Court should, as a matter of policy, apply by analogy the decision of the New Zealand Court of Appeal in Daniels as affirmed by the Privy Council in W v W to strike out or dismiss a claim for exemplary damages where the appellant has been acquitted of the charges preferred against him subsequent to the conclusion of the civil trial at which exemplary damages were awarded." In his Honour's view "the appellant having been acquitted of the charges preferred against him in the criminal proceedings, no question of double punishment [arose] and [t]here is no possibility of any punishment" : Niven (at [63]). 57Tobias JA regarded the whole tenor of the High Court's approach in Gray to the award of exemplary damages as consistent with his conclusion, even though the Court in Gray "was at one with the New Zealand Court of Appeal in Daniels in concluding that exemplary damages should not be awarded in a civil trial where the defendant, in a preceding criminal trial, had had inflicted upon him or her 'substantial punishment'" (at [64]). He noted that "[e]ven in Gray , the Court left for another occasion the meaning of 'substantial punishment' particularly if only a nominal penalty for reasons personal to the accused or other reasons had been imposed in the criminal proceedings." 58Niven is a recent decision of this Court from which I would not depart. I do not regard it as "plainly wrong" or even erroneous: Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504. On that basis, and on the premise that Schofield was acquitted in respect of the assault on Christian, the fact of the criminal proceedings against Schofield was irrelevant to Christian's claim for exemplary damages. 59It is not necessary to reach a final decision concerning the effect of an acquittal on Christian's claim for exemplary damages. The question was not really canvassed on appeal - one reason being the uncertainty surrounding the effect of the "quashing" of Schofield's conviction in respect of Christian. As is apparent from Daniels , the issue is fraught with difficult decisions of policy and conflicting authority in the common law world. It is a question the High Court should resolve: cf Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 (at [134]). 60The relevance of any criminal proceedings for both appellants' claims can, in my view, be resolved on a factual basis. The unsatisfactory position concerning the evidence about any criminal proceedings against Schofield means the Court cannot determine whether there was "substantial identity" between the conduct that may have been the subject of the criminal and civil proceedings: Gray (at [45]). The primary judge merely recorded that Schofield was "prosecuted for assault on both plaintiffs" without any reference to the factual basis for the charges. As the plurality made clear from their reference to the fact that the "substantial identity" issue "may lead to difficult questions of fact and degree", this is a relevant factual inquiry. It was not undertaken in this case. In my view this means it is not open to the Court to conclude that any criminal charges against Schofield in respect of either Sebastian or Christian alleged "the same conduct" as was alleged in the present proceedings: Gray (at [46]). Nor is the Court aware whether Schofield was punished at all. The primary judge may have been aware from experience which entitled him to take judicial notice of the fact that a s 10 order remains on a person's record, however it is not apparent that that would take the significance of a conclusion as to a conviction which did not proceed to a finding of guilt any further. 61In those circumstances I would not regard whatever criminal proceedings were taken against Schofield as militating against an award of exemplary damages.

Disciplinary proceedings 62As I have said, there was evidence that Schofield had been subjected suspension with pay pending an investigation of the incident. There was no evidence that there was any follow-up on the recommendation that disciplinary action be considered following an interview with Schofield. There was no evidence that he had suffered any financial penalty, been reduced in rank, or dismissed from RailCorp in a way which might warrant the conclusion that he had been "punished" albeit in a civil context: cf Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397 (at 404). 63In my view there was no evidence of disciplinary action which would affect any award of exemplary damages.

Quantum of award 64The principles as to the quantum of an award of exemplary damages were conveniently collected in James v Hill [2004] NSWCA 301 (at [66] ff) per Tobias JA (Sheller and Hodgson JJA agreeing). Relevantly (at [69]) the "objectives of an award of exemplary damages are to punish the wrongdoer, deter him and others from committing like conduct again, to provide vindication to the victim and to denounce the wrongdoer's behaviour." 65If exemplary damages are to fulfil their threefold purpose, they must not merely irritate, they must sting; there is "no necessary proportionality" between the amount awarded as compensation for the damage suffered by the plaintiff and the amount of exemplary damages awarded against the defendant: Harris v Digital Pulse Pty Limited [2003] NSWCA 10; (2003) 56 NSWLR 298 (at [254]) per Heydon JA; cited in Amalgamated Television Services Pty Ltd v Marsden (No 2) (2003) 57 NSWCA 338 (at [23]); James v Hill (at [84]). 66Having regard to these principles, and bearing in mind the focus of the award is the wrongdoer's conduct, I would award each appellant $10,000 by way of exemplary damages.

Aggravated damages 67The primary judge awarded the appellants aggravated damages but took into consideration what he said "could be described as the provocative behaviour of the plaintiffs and their belligerence in assessing such an award...". The appellants challenged that factual conclusion. For the reasons I have given, that submission should be accepted. 68As Whealy JA has explained (at [235]) aggravated damages may be reduced if the plaintiff's own behaviour may have brought the attack on himself. This proposition is drawn from Fontin v Katapodis and appears to depend on understanding the references in that case to exemplary damages included aggravated damages. That is because it was only in Rookes v Barnard that the distinction between aggravated and exemplary damages was explained and accepted in Uren v John Fairfax & Sons Pty Ltd : see Halsbury's, Laws of Australia , LexisNexis at [135-605]. 69As I have explained, in my view the appellants' conduct was not responsible for the commission of the tortious act: Fontin v Katapodis (at 187) per Owen J (with whom Dixon CJ agreed). Accordingly I would increase each appellant's award of aggravated damages to $7,500.

Conclusion 70The effect of my reasons is that Sebastian's damages should be increased to $22,500 and Christian's to $25,000. These amounts exceed in total the amounts in the Offers of Compromise upon which the primary judge based his decision to award RailCorp indemnity costs from 16 October 2007 and the amounts in RailCorp's second offers of compromise of 6 February 2008. I do not understand it to have been suggested that the offer of $100,000 plus costs made on the first day of the trial apparently as a joint offer was relied upon in a Calderbank sense so as to entitle RailCorp to indemnity costs. However the exemplary damages component of the damages should only be awarded against Schofield, although they are damages RailCorp accepted in this Court that it would pay: appeal transcript, 14 February 2011, at 31. That means, however, that the verdict against RailCorp in respect of Sebastian would be less than the offer of compromise in respect of him made on 16 October 2007, but still more than that made to Christian. The verdict against Schofield would be less than the offers. In those circumstances and also because RailCorp said in its written submission it wished to be heard on the appropriate basis on which costs should be ordered, I would propose to reserve the position as to both the question of the costs of the trial and the appeal. As, however, this is a dissenting judgment, I have not made any directions about service of submissions addressing the issues raised by my reasons. 71I propose the following orders: (1) Appeal allowed in part. (2) Set aside the judgment for $10,000 in favour of the first appellant and in lieu thereof order that there be a verdict against the first respondent in the amount of $12,500 and in the amount of $22,000 against the second respondent. (3) Set aside the judgment for $12,000 in favour of the second appellant and in lieu thereof order that there be a verdict against the first respondent in the amount of $15,000 and further in the amount of $25,000 against the second respondent. (4) Costs of the trial and appeal reserved. (5) Parties to calculate the interest component of the damages. 72WHEALY JA : Two brothers, Sebastian and Christian Whitbread, were involved in an incident at Gosford Railway Station in the early hours of the morning of Saturday 13 March 2004. The incident involved a confrontation between the two brothers and a number of State Rail transit officers. The brothers had been drinking heavily for some hours and undoubtedly were well affected by alcohol. In the upshot, the brothers were arrested and taken to Gosford Police Station by local police where they were detained for some hours. Infringement notices were issued to the brothers upon their release, alleging breaches of railway regulations. The breaches alleged misconduct of one kind or another on railway land. Later, however, these notices were withdrawn and one of the transit officers, Andrew Schofield, was prosecuted for assaults committed against the brothers. They, in turn, brought proceedings in the District Court of New South Wales seeking damages against Rail Corporation New South Wales ("RailCorp") and a number of the transit officers, including Schofield. Each brother was the plaintiff in separate proceedings seeking damages for assault and battery, false imprisonment and injurious falsehood. Each brother claimed general damages, aggravated damages, exemplary damages, interest and costs. 73The two proceedings were heard together by O'Connor DCJ during early February 2008. On 14 October 2008, his Honour delivered his final judgment on liability and damages. He found in favour of each plaintiff on the assault count, insofar as it related to the actions of Schofield. RailCorp had agreed that, in the event of a finding against any of its employees, it would accept a finding against it based on vicarious liability. Consequently, the judge awarded $10,000 damages to Sebastian against RailCorp and Schofield. Christian was awarded $12,000 against the same two defendants. The trial judge, however, held against the brothers in relation to the false imprisonment and injurious falsehood claims. Each of the remaining employees who had been unsuccessfully sued received a verdict in his favour. 74The trial judge gave a second decision on 17 November 2008. This related to the costs of the proceedings. The position had been complicated by the fact that there had been offers of compromise made on two separate occasions during the proceedings. Ultimately, RailCorp and Schofield were ordered to pay Sebastian's costs on an ordinary basis up to 17 October 2007. However, Sebastian was ordered to pay those two defendants' costs on an indemnity basis from 17 October 2007. Similarly, RailCorp and Schofield were ordered to pay Christian's costs on an ordinary basis up to 7 February 2008. Christian, however, was ordered to pay those two defendants' costs on an indemnity basis from 11am on 7 February 2008. 75His Honour, in the exercise of his discretion, declined to make a Bullock or Sanderson order in relation to the costs awarded against the plaintiffs in favour of the successful transit officers. 76Each brother sought leave to appeal from the decisions of the trial judge. Leave was granted by this Court on 20 November 2009. Thereafter, Amended Notices of Appeal were filed and the matter was ultimately prepared for hearing. For reasons that are not necessary to detail, there are now only four respondents to Sebastian's appeal, they being RailCorp, Andrew Schofield, John Borchard and Christopher Sanderson. In Christian's appeal, the remaining respondents, in addition to RailCorp, are Schofield, Borchard and Sanderson, together with another employee, Geoffrey Blight. 77The appeals were heard together on 14 and 15 February 2011. Maurice Neil QC and Mark Thompson appeared for each appellant. The respondents were represented by David Hooke SC and David Sulan. At the conclusion of the hearing, the court reserved its decision.

An examination of the events of 13 March 2004 78Many of the circumstances surrounding the incident at Gosford Railway Station are not in dispute. Indeed, a large number of the facts found by the trial judge are not now in dispute. That said, there are some 10 to 12 factual matters where it will be necessary for this Court to determine whether the particular findings were open, available and justified on the evidence. Subject to the resolution of those matters, I will state briefly my general understanding of the facts and, in the context of the actual confrontation at the railway station and its immediate aftermath, refer extensively to the trial judge's description and analysis of those particular factual matters. Throughout this narrative, and generally, I will for convenience refer to the plaintiffs by their first names. I will again for convenience, refer to the relevant transit officers simply by reference to their respective surnames. 79The origins of the incident can be traced back to events in the early evening of Friday 12 March 2004. The two brothers went to the Wyong RSL Club to watch a rugby league game. They arrived roughly between 6:30pm and 7:00pm, and left about 10:00pm or 10:30pm. Sebastian, who was 23 years of age at the time, had about seven schooners of beer while he was at the club. Christian, who was some three years younger, said that, in general terms, he matched his brother "drink for drink" at the club, even though he, Christian, was a slower drinker than his older brother. 80The brothers then left the RSL Club and caught a train from Wyong to Gosford. There they went to a nightclub called "Joe's Garage", played pool, drank some more and danced. They also played the poker machines and, it seems, between them they won about three hundred and fifty dollars. At the club, they drank a variety of mixed drinks. Sebastian thought he had had fifteen to twenty alcoholic drinks over the whole night. He was later to put his level of intoxication as "about a 5 out of 10". Christian had about twelve to fifteen drinks at the club and he was later to agree that his estimate of his level of intoxication at the time of the incident was that he was "either a 9 or a 10 out of 10". There is no doubt that they were both significantly affected by alcohol. 81Christian had to be at work at McDonald's at Wyong on the Saturday morning at 6:00am. The brothers left the nightclub and arrived at the Gosford Railway Station some time between 3:30am and 4:00am. It seems they had determined that they would catch a train from Gosford back to their home suburb of Wyong. Sebastian had $300 in notes in his pocket together with some $7 or $8 dollars in small change. It also appears, from the evidence that Sebastian was later to give, that when the two men arrived at the railway station, Sebastian, at least, intended to travel on the train without paying for a ticket. This was so because he realised at the time that he only had, in general terms, fifty dollar notes on his person, and that would not enable him to get change from the ticket machine at the station. He also explained that, when the two men had travelled from Wyong to Gosford the night before, they did not buy a return ticket because they "didn't have enough money at that stage". Later, presumably at Gosford, Sebastian used an ATM to obtain an amount of cash for the purpose of funding the night out at Gosford. 82Gosford Station straddles the railway line which proceeds, more or less, in a north-south direction. Mann Street is on the east side of the railway station, with an entry for pedestrians from the street. On the western side of the station is Showground Road. Again, there are facilities for pedestrians to enter the railway concourse from that western side. At concourse level there are offices, toilets, amenities, timetable details and the barriers. The platform may be reached by stairs and lifts, located on the eastern side of the barriers. These provided access to the lower level where the railway platforms are located. 83The two men approached the railway station from the Mann Street side. They were carrying drinks with them when they arrived at the railway concourse. They were first spoken to by transit officers and then later were spoken to by a security guard. Requests were made that they take their drinks off the railway premises. They complied with this direction, although Sebastian said to the guard, "You go your fucking way and I'll go my fucking way." The brothers took their drinks out on to the Showground Road side of the station, that is on the western side of the railway complex. The brothers were also spoken to by some transit officers about the issue, and they remained out there drinking for a time until they had finished their drinks. The three transit officers involved in this discussion appeared to have been Schofield, Sinha and Jimenez. The empty bottles were left on the outside fence, near where the brothers had been drinking. When they came back into the concourse, it appears that Sebastian was smoking a cigarette. He was spoken to by Schofield, following which the cigarette was either put out or finished outside the concourse area. 84I turn now to the findings of fact made by the trial judge. His Honour dealt with the events I have just described, and the situation which then developed. The extract commences as follows: "From the statements contained in exhibit H and the evidence of the plaintiffs there was little controversy about the following factual matters. The plaintiffs had attended a local nightclub at Gosford and other places previous to that where a considerable amount of intoxicating liquor was consumed. By the time they arrived at Gosford railway station they were well affected by alcohol and were continuing to drink from bottles thought to be Bacardi Breezers. They were observed as they entered the station by Transit Officers Sidhu and Singh. They were told to finish their drinks outside and then to enter the station. They complied with this direction saying, 'Yeah, yeah, fucking.' The plaintiffs were seen sitting on a seat outside a paper shop drinking alcohol on railway property at which time they were spoken to by a guard, Michael Riley, who told them to take their drinks off the premises. They complied with this direction, albeit unhappily, Sebastian saying, 'You go your fucking way and I'll go my fucking way.' They then moved to the Showground Road exit and finished their drinks, (exhibit H, attachment 7). This incident was witnessed by Lynette Truscott, who occupied the position of Customer Service Assistant at Gosford station. After the incident she spoke to the guard, telling him, 'Don't worry about them, they're full of alcohol.' Ms Truscott then went to the meal room. She said there were approximately eleven transit officers there. She warned them to be careful and she said one of the persons she had seen maybe looking for a 'blue'. Andrew Schofield, the second defendant, Kenneth Sinha, the sixth defendant, Melchor Jimenez, the fifth defendant, and Transit Officer Sinha on their patrol, observed the plaintiff Sebastian smoking a cigarette (exhibit H 16 paras 8-9), This observation was at the Showground Road exit. Schofield asked what they were doing, to which they responded they were having a drink and waiting to catch a train (exhibit H attachment 19 paras 5-6). They then entered the concourse at Gosford station. Sebastian was smoking a cigarette. Schofield directed him to put the cigarette out, with which direction he complied (exhibit H attachment 19, paras 5-7). It would appear to be common ground that there is no manned ticket booth open for the purchase of a ticket, no doubt having regard to the hour. There was no dispute that the plaintiffs had sufficient funds to purchase tickets if a ticket booth was manned, however most of their currency was in fifty dollar notes. Police records reveal that Sebastian had three hundred and seven dollars and ninety cents in his possession when taken into custody at Gosford police station. Seven dollars and ninety cents, it seems, was sufficient to purchase at least one ticket to Wyong at the automatic vending machine, but perhaps insufficient for two tickets. Sebastian's evidence was that on past occasions when confronted with a similar situation they had caught a train and paid a fine on termination of their journey. The plaintiffs entered the station and walked through the barriers leading to the platforms, where they were confronted by TO Sanderson (the fourth defendant) , who asked for their tickets, (exhibit H attachment 15). This episode is captured on CCTV (exhibit A). The CCTV demonstrates that the plaintiffs then withdrew behind the barriers. A discussion then ensued between the plaintiffs, and Transit Officer Sanderson, Transit Officer John Borchard, the third defendant and Transit Officer Geoffrey Blight, the seventh defendant were present. Transit Officer Sidhu and Transit Officer Singh were on the concourse, but a little further away. Transit Officer Sanderson recorded the conversation with the plaintiffs in his notebook. A typescript of the alleged conversation is included in exhibit H, in attachment 15. The conversation is described in the following terms: Sanderson: 'Have you got tickets?' Sebastian: 'There's nowhere to buy a fucking ticket.' Sanderson: 'There are ticket machines out there.' Sebastian: 'Fucking where? You get me a fucking machine that gives me change and I'll buy a ticket.' Sanderson: 'The machines give change.' Sebastian: 'Not the change I fucking want, I don't have to buy a ticket if the machine doesn't give me change.' Sanderson: 'It's up to you to make sure you have the money for the machine. State Rail has the responsibility of supplying machines but no responsibility for supplying the money.' Sebastian: 'Well can't fucking buy a ticket. I'm going without a ticket.' Sanderson: 'You aren't catching a train.' Sebastian: 'Yes, I fucking am and what are you going to do about it, what are you going to do to stop me.' Sanderson (to Christian): 'Mate you can go and by [sic] a ticket and catch a train if you want but he's not going down there.' Christian: 'I'm not going anywhere, he's my brother.' Sanderson: 'I'm an authorised officer, I'm giving you a direction to leave the station under the Rail Safety Act. I'm directing you to leave due to your offensive language.' Sebastian: 'You can't fucking make me.' Sanderson: 'Yes, I can. I'm giving you another direction, to leave the station. It's an offence not to comply with that direction. If you don't leave the station we'll have to grab you and take you out.' There is no dispute that Sebastian used the word 'fucking' on several occasions and that he was being directed to leave the station, and that both he and his brother refused to do so. As mentioned, it is not disputed that they were both intoxicated. Although Mr Thompson, in his submission, did not accept the accuracy of Mr Sanderson's account of the conversation, I accept on the balance of probabilities that fairly describes the exchange, bearing in mind it was contemporaneously recorded in his notebook and reflects the mood and the essential elements of the dispute. Also, no doubt as a result of the plaintiffs' intoxicated state, their memory of the details is somewhat vague. The ensuing scene is captured on CCTV, by which time the second defendant Schofield has arrived. The plaintiffs are then in the company of Schofield, Sanderson, Borchard, Blight and Sinha. Jimenez is seen to be leaning against the wall. There is nothing in the demeanour of those present to suggest imminent violence. Transit Officer Sanderson describes the subsequent events in the following terms. I have substituted 'Sebastian' for 'POI1' and 'Christian' for 'POI2', as it appears in his statement: Schofield: 'Mate, what's happening. I just spoke to you guys out there, you guys were going to behave yourselves.' Schofield said something else to Sebastian, then Sebastian became more aggressive and raised his voice at Schofield. Schofield said, 'Don't yell at me,' Then Sebastian said, 'I will fucking smash you.' Schofield then appeared to lunge towards Sebastian, striking him with his right hand to the male's chest or neck area. This caused the male to stumble backwards. STO Sinha and TO Bouchard then took hold of Sebastian and removed him from the station. Christian went to the ground and took hold of Schofield's leg. Schofield struck Christian with the back of his hand. Whilst the male had hold of Schofield's leg Schofield grabbed Christian's head with both hands and appeared to slam it into the ground. It released the grip Christian had on Schofield's leg. Schofield, Blight and I then carried Christian out." 85The trial judge then provided a summary of the relevant portions of the statements of a number of the transit officers. It should be noted that, unusually, all these statements had been tendered by the plaintiffs in their respective cases. For that reason, it became unnecessary for the defendants to call any of the officers. These statements came, inter alia, from Sidhu, Sinha, Jimenez, Singh, Borchard and Blight. I shall reproduce his Honour's remarks about the contents of these statements in full: "Transit Officer Sidhu described the events leading to the removal of the plaintiffs from the station. He said Schofield stood near Sanderson and started talking to the boys. He folded his arms. He said Schofield suddenly extended his right arm towards the neck of Sebastian, following which Sebastian fell backwards. He then saw Sinha and Borchard remove Sebastian. He then saw Schofield move towards Christian and move his hand in a backward action. He did not see the hand connect with Christian, but he fell down, straight away. In a matter of seconds he said he saw blood coming from Christian's lip, when being removed by Sanderson, Jimenez and Blight. Transit Officer Sinha provided a statement in which he said that Schofield got involved in the discussion with the males who were still swearing. He heard one of them say, 'There's no fucking way I'm leaving the station.' He heard Sanderson give the males directions to leave the station, however he said, 'The males continued to swear at the transit officers present'. He said he heard Schofield say something like, 'I've already told you boys to behave', but they continued to swear at him. He said he saw Schofield suddenly grab one of the males around the upper chest and neck area with his right hand and that the male fell backwards towards the glassed area. Transit Officer Jimenez provided a statement in which he said that he heard Sanderson giving directions to the males to leave the station and that they refused to comply with these directions. He said he heard Sebastian say something like , 'I will kill you fucking cunts, I'm not leaving the station.' He said this went on for five to seven minutes when suddenly Schofield extended his right arm towards Sebastian and pushed him below the neck area, causing him to move back a little. He said a scuffle then broke out and he did not see what happened to Sebastian. He said that Christian was on the ground and hanging onto Schofield's leg and that Schofield gave him a backhand on his face. He said he later saw blood on Christian's teeth. Transit Officer Singh provided a statement in which he said that Schofield joined the group consisting of Sanderson, Sinha, Borchard and Blight . Transit Officer Sinha and Melchor were standing a little bit away from that group. He said Sanderson, Borchard and Blight were talking to the males but were getting nowhere. He said Schofield said something to Sebastian. He heard Sebastian reply something like, 'You can't touch me, I'll kill you.' He said that about fifteen or twenty seconds after Sebastian spoke to Schofield, Schofield raised his right hand and moved it towards Sebastian's upper chest area, He said he saw Sebastian move 'a little bit back'. He said he saw Schofield slap Christian two or three times with the back of his hand. He said that Christian started bleeding from the inside of the lip just after that. He said he told Schofield, in relation to him hitting Christian, 'Don't do that.' He said that Schofield told him that Christian was grabbing his leg. Transit Officer Borchard provided a statement in which he said he heard Sanderson giving a direction to the plaintiff in the following terms, 'I am giving you a direction to leave, leave the station now.' Sebastian replied, 'I'm not fucking leaving, what are you going to do about it?' He said Sanderson replied, 'If you don't leave we will remove you.' He said Sebastian became more aggressive, speaking louder and louder. He said about this time Schofield arrived. He heard him say, 'I've already spoken to you two, you were going to behave yourselves.' He said he heard Sebastian say, 'I'm going to fucking smash you.' He said Schofield then pushed Sebastian away from himself with his right hand making contact with Sebastian's upper chest and throat, causing him to stumble backwards towards the glass or wall railing. Transit Officer Blight provided a statement. He heard Sanderson give a direction to both males to leave the station. He said that Sebastian responded aggressively on hearing this and started swearing again, stating that he was not going to leave 'the fucking station', and was going to get the train. He said Schofield arrived and said, 'What's going on here, I told you boys to behave yourself. You are going to have to leave the station.' He said that Sebastian started abusing him, 'giving him a mouthful'. He said he then saw Schofield lunge out with an open hand towards the neck area of Sebastian. He said that Sebastian fell backwards to the ground, at which point Christian tried to help his brother. He said in the confusion Sebastian fell on his back and he and Sanderson told him to stay down. He said that Christian grabbed Schofield around his lower leg and that Schofield told him to let go three times. After the third time Schofield hit Christian in the face area with an open backhand in what he described as a defensive action and he noticed blood on Christian's general mouth area after he was struck." 86I should interpolate that, during the course of this analysis, the trial judge had responded to submissions to the effect that there were aspects of Sanderson's statement, and other material, that suggested unreliability. His Honour examined this submission carefully and came to the conclusion that the ultimate version provided by Sanderson in his statement was reliable and was generally consistent with the observations of others. In that context, his Honour also made findings that were critical of the reliability of the evidence given by the brothers. He added: "Sebastian's evidence in relation to this event is unreliable. In his evidence in the Local Court he said he was attacked from behind, changing his evidence when he observed the CCTV. Christian has little memory of the events at all before being ejected from the station." 87After examining the statements of the individual transit officers, his Honour then addressed the important issue as to whether or not Schofield had been guilty of assaulting the brothers. In this part of the analysis, his Honour said: "The CCTV does not reveal any physical act of aggression by either plaintiff before Schofield lunged at Sebastian. There is no suggestion in any of the statements in exhibit H that either plaintiff punched or struck any of the transit officers." The trial judge added: "I accept that Sebastian, in the course of his argument with Schofield, had frequent recourse to the word 'fucking' and it was during the course of this argument he insisted on his right to catch the train and refused to leave the station. He was supported in this approach by his brother Christian and although Christian may have been less verbally abusive, he was not going to leave the station and was equally determined to catch a train, albeit without a ticket." 88In relation to the circumstances leading to the removal and ultimate arrest, his Honour made the following findings of fact: "Borchard and Sinha then grabbed Sebastian by each taking an arm and escorting him out of the station. Sinha said that Sebastian put up some resistance as they walked out and on a couple of occasions they had to drag him (exhibit H tab 19). Borchard said he and Sinha, 'walked him down the ramp leading left from the western exit and onto the footpath' (exhibit H, tab 21). Once out on Showground Road the CCTV footage demonstrates Sebastian being dragged onto the public pathway and then pushed in the direction of the roadway. The statements in exhibit H suggest this was done by Sinha and shortly thereafter by Borchard, and I so find. Sebastian is seen attempting to return to the station. This is confirmed by the video (exhibit A). Borchard described this incident in the following terms: 'POI2 immediately turned towards us and stepped very close to me. He was still behaving aggressively, swearing and making threats. I pushed him away from myself with both hands, making contact with his shoulders. POI2 fell backwards onto the ground. I said, 'Okay, you're under arrest for refusing to comply with the direction to leave the railway land' (exhibit H, attachment 14). Sinha described this episode as follows: 'The male turned around and walked back towards us in an aggressive manner, moving quickly towards us. John pushed him back again and he stumbled. At some point John warned him that he would be arrested if he returned. As the male tried to come back at us he stumbled again. John and I arrested him. John applied the handcuffs while the male was on the ground and struggling, in my view, to assault us. The male got up several times and we tried to contain him again by putting him on the ground and crossing his legs. He kept getting up and Chris (a reference to Sanderson) came to assist us. To finally contain him Chris put his body weight on his front torso and John and I pinned down a leg each. He then remained fairly contained until the police arrived.' On the concourse outside the station, Blight restrained Christian by sitting on him until the police arrived. Senior Constable Leanne Wolseley was the first police officer on the scene, arriving shortly after the plaintiffs were restrained. She said both males were yelling and screaming. She walked over to one of the males and said, 'I am a police officer, I need you to calm down.' The male said, 'Get fucked, I'm not calming down.' She walked over to the other male who was struggling with the transit officers. She said, 'If you don't stop struggling I'll have to spray you.' This male said, 'Just get these fucking cuffs off me.' She said both males appeared to be becoming more aggressive with the transit officers. Blight handcuffed Christian. He was unaware precisely where he did this, but thought it was on the concourse. He said he was arrested because of his aggression and numerous offences, including smoking, drinking, swearing and not having a ticket. I interpolate that Christian was not smoking but Sebastian was. He said that five or six minutes after he arrested him he complained that the handcuffs were too tight, as a result of which he adjusted them. He said: 'At one stage person of interest 2 managed to bring his handcuffed hands around the front of his body. Later to contain him I put my body weight across his body.' I infer from that, that Blight was sitting upon Christian to restrain him." 89There is no dispute that the police were called and subsequently attended at Gosford station, at which time the brothers were being restrained in the manner referred to by the trial judge. No complaint is made about the conduct of the police officers, either at the time they arrived or thereafter. In particular, there is no complaint about the manner in which the brothers were treated at Gosford police station. The brothers were placed in a police vehicle and taken to the Gosford police station, as I have earlier indicated. 90It appears that Borchard told one of the police officers, Constable Baker: "I saw two males drinking and smoking on the platform and that they did not have a rail pass." 91Michael Riley (the security guard) and Schofield both attended Gosford police station and sought to identify which of the brothers had allegedly committed the offences. While there, Schofield corrected the information the police had been given. He indicated that it was only Sebastian who had been smoking on railway land. Five penalty notices were issued to Sebastian. These were for the following offences:

1. Not comply with direction to leave station;
2. Drinking liquor on railway land;
3. Smoking on covered railway land;
4. Use offensive language on railway property; and
5. Travel on train without valid ticket. The penalty notices against Christian were for the same offences, with the exception of the one relating to "smoking". Having recited these facts, his Honour then made a statement which was the subject of some criticism during the hearing of the appeal. His Honour said: "I note no further action was taken in relation to "fines referred to in the penalty notices." (The appellants were later to submit that court proceedings in relation to the penalty notices continued, with the appellants required to spend some time going to court on two or three occasions before the proceedings were ultimately dismissed). 92The trial judge next gave detailed consideration to a number of issues, including whether the brothers had been guilty of breaches of any of the conduct regulations contained in the Rail Safety (General) Regulation 2003 (NSW) made pursuant to the Rail Safety Act 2002 (NSW). His Honour identified as potentially relevant cl 5 (travel on a train without ticket), cl 13 (use offensive language on railway land), cl 15 (smoke on railway land), cl 18 (causing or likely to cause a nuisance or annoyance to others on the station). In relation to the powers of transit officers, his Honour noted clauses 18 and 58 in the Regulations. Each of these, in slightly different contexts, provided a power to direct a person to leave the station or railway land. 93The trial judge then recited a submission by Mr McCulloch SC (who appeared for the defendants at trial): "Mr McCulloch SC submitted that the plaintiffs having committed a number of offences in breach of the regulation, the defendants acted lawfully to remove the plaintiffs and restrain them, and was a complete answer to the claims of assault, battery and false imprisonment. Further, that no more than reasonable force was used to achieve this end. In relation to the claim of injurious falsehood, it was submitted that the plaintiffs needed to prove malicious publication with the result that actual damage was sustained... Mr McCulloch SC submitted that the offences in the penalty notices were justified, as the plaintiffs had committed those offences, and the fact that the penalty notices were later withdrawn was not relevant." 94His Honour next summarised broadly the liability issues in controversy as follows: "(1) Were there breaches of the Regulations? (2) If there was a breach of the Regulations, were the defendants authorised to remove the plaintiffs from the railway property? (3) Was any more than reasonable force used in the course of the removal of the plaintiffs from railway property, such as to amount to an assault? (4) Was the apprehension and detaining of the plaintiffs, and the role of the police, unlawful in the circumstances constituting false imprisonment? (5) Were the defendants, or any of them, guilty of assault? (6) Are the defendants, or any of them, guilty of injurious falsehood?" 95In relation to the first broad issue he had identified, the trial judge considered a number of submissions that were made by the parties on the issue as to whether the conduct of either of the plaintiffs constituted a breach of any of the Regulations. There is no need for me to summarise these arguments or the detailed reasoning of his Honour, except in relation to the issue of breach of cl 13 (use offensive language on railway land). This is so because, on any view of it, the directions given by Sanderson (the principal transit officer) to the brothers related, as his Honour found, to their use of offensive language. 96It is necessary to note, however, that his Honour found that both Sebastian and Christian were "attempting" to travel on a train without a ticket and were in breach of cl 5. Similarly, he found that Sebastian had earlier breached the regulation that prohibited smoking on railway land, although he had complied with the direction to finish his cigarette outside. He was also satisfied that there had been a breach of cl 15 in that both had been earlier drinking on railway property. In addition, his Honour thought that, having regard to their state of intoxication and their demonstrated belligerence, they were likely to cause a nuisance or annoyance to other persons on the station or, if permitted to catch a train, on the train. 97Although a breach of cl 17 did not form the basis of the ultimate direction to leave the station, the trial judge's reasoning in that regard is relevant to the use of offensive language in the overall context of the directions ultimately given by Sanderson. His Honour said: "The evidence revealed that before arriving at the station the plaintiffs had consumed about 7 schooners of beer while watching the football that afternoon, following which they drank between 15 and 20 pre-mixed alcoholic drinks at a nightclub and continued to drink whilst on their way to the station. I would infer that they were heavily intoxicated, were belligerent and abusive. Offensive language was used and they had breached the Regulations earlier referred to. Notwithstanding these observations, Sanderson at one point, indicated that Christian was able to travel on the train provided he purchased a ticket, but declined to permit Sebastian to do so. Christian was not prepared to leave without his brother. Transit officer Borchard recorded in his notebook that Christian replied, 'He's not going anywhere, he's my fucking brother, we're catching the fucking train.' They were both adamant that the only way they were leaving was on a train." In those circumstances, the trial judge found, in addition to the other breaches, that there was a breach of cl 17. 98In relation to the issue of the use of offensive language (breach of cl 13) Mr Thompson, who appeared for the plaintiffs at trial, had submitted that there was no breach of the relevant clause "as the language used had to be offensive to the person hearing it." Mr Thompson submitted, in addition, that the trial judge could not be satisfied that "Christian had said anything capable of offending anyone". The trial judge's comments about these arguments were as follows: "I am of the opinion that the test is objective rather than subjective. Regardless of whether the transit officers were offended, I am of the view that the frequent and repeated use of the word 'fucking' in an abusive and belligerent manner amounts to offensive language and could also be described, perhaps, as offensive behaviour. It was put to Christian that he said, 'Get fucked, I'm going to Wyong'. He said he was not able to remember what he said to the transit officers but agrees he has used such language in the past. Schofield, when he reported the behaviour to the police, claimed that both plaintiffs were swearing. Transit officer Sidhu said that 'both males became abusive and aggressive in their language'. Transit officer Borchard recorded in his notebook that Christian said, 'He's not going anywhere, he's my fucking brother. We're catching the fucking train'. I am satisfied that both plaintiffs used offensive language, were belligerent and aggressive and determined not to leave the station without catching a train." 99The trial judge then proceeded to deal with the validity of the directions that he believed had been given to both brothers to leave the station. I shall set out these remarks in full: "The ultimate confrontation which led to their removal was the determination to board a train without a ticket and the refusal to comply with a direction to leave the station. Such direction is against the background of the plaintiffs' state of intoxication and their belligerent and abusive behaviour. Ultimately, Transit Officer Sanderson, following an exchange where the expletives were used, gave the plaintiffs a direction to leave the station 'as a result of offensive language'. When Sebastian replied, 'You can't fucking make me', a further direction was given by Sanderson to leave the station, informing the plaintiffs that it was an offence not to comply with that direction and that if they did not leave the station they would be taken out. Mr Thompson submitted that pursuant to cl 39(1) that the right of an authorised officer to direct a person to leave railway land is limited to where a person is 'committing an offence'. Having regard to my earlier finding that the language used was offensive, as the language used was relatively contemporaneous with the direction that was given, I am satisfied it was given at the time the offence was committed. Further, although not referred to in terms by Sanderson in his direction, their continuing intention to board a train without a ticket was a continuing attempt to breach cl 5 as was their continuing state of intoxication likely to cause a nuisance or annoyance to other persons on the station or train. Having regard to these matters, the plaintiffs could be under no illusion as to why they were being asked to leave. Mr Thompson submitted that for a person to be lawfully removed by an authorised officer pursuant to cl 58 he must fail 'to comply with a direction given under this regulation to leave', and that a simple direction to leave was not sufficient because it must specify the reason of the direction being a reason grounded in the regulation. I am of the view that a valid direction was given and the consequences of failure to comply were also given. The determination to board a train without paying for a ticket and their level of intoxication in circumstances where they were likely to be a nuisance or annoyance to others would also have been a valid reason for a direction to leave the station to be given. If follows, on the balance of probabilities, that there were breaches of the Regulations as referred to above and that in the circumstances the defendants were authorised to remove the plaintiff from the railway property." 100The trial judge next gave consideration as to whether the plaintiffs had been assaulted by the transit officers or by any of them. His findings were quite clear in this regard. He was satisfied that Schofield assaulted both Sebastian and Christian. Moreover, he was satisfied that no physical violence had been offered by either plaintiff before Schofield lunged at Sebastian, connecting with his throat and neck, forcing him backwards towards the railing, in the course of which Sebastian's shirt was ripped. Apart from the ripping of the shirt, his Honour found that there were no physical injuries sustained by Sebastian as a consequence of the assault. 101His Honour held, however, that the attack upon Christian was of a more serious nature. He, at some point, had been forced to the ground by Schofield. While Christian may have had hold of Schofield's leg on the ground, this constituted no more than an inconvenience to Schofield. The officer grabbed Christian's head and slammed it into the ground. In addition, he slapped Christian's face two or three times with the back of his hand, causing Christian's lip to bleed. His Honour continued: "As stated earlier in these reasons, I am of the view that the defendants were entitled to remove the plaintiffs from the railway property. I am of the view, however, that the second defendant, Transit Officer Schofield, assaulted both plaintiffs in the course of the removal process. There was no necessity for such a violent reaction. The plaintiffs were clearly outnumbered and it seems to me they could have been physically escorted and restrained without the necessity for the violence exhibited by the second defendant. I am not satisfied that any of the other transit officers were complicit or involved in these assaults, and came as a surprise to them. Indeed, Transit Officer Singh told the second defendant when he was striking Christian, 'Don't do that' (para 27, Statement of Rivinda Singh, exhibit H, tab 17). The plaintiffs were then removed from the immediate vicinity of the railway property. Christian was carried and Sebastian escorted by a transit officer on either side. This was partially depicted on CCTV (exhibit A). Consistent with their determination not to leave railway property, they struggled and were resistant at being removed. I do not regard the physical actions of the transit officers removing the plaintiffs as warranting criticism in the circumstances. There is no suggestion that any physical injury occurred while they were being taken from the station and I find there was no more than reasonable force used in their removal. In evaluating this issue I have taken into the consideration the fact that both plaintiffs were physically resistant to being removed and continued to be abusive and aggressive." 102His Honour then turned to the next broad issue to be determined. This was whether the apprehension and the restraint of the brothers by the transit officers, prior to the arrival of the police, had been unlawful, thereby constituting false imprisonment. In this regard, his Honour accepted, on the balance of probabilities, the contemporaneous notes completed by Transit Officer Borchard. He noted, in that regard, that the plaintiffs had little memory of the events outside the station, and were not in a position to challenge the description of the events in Borchard's statement. As to the position of Sebastian, his Honour made the following findings: "Sebastian was escorted from the station by Transit Officer Borchard and Sinha. When they arrived at the exit, he was released and they pushed him out, at the same time Borchard saying, 'Now leave, don't come back'. Contrary to those directions, Sebastian immediately turned around, stepping very close to Borchard, was aggressive and swearing and making threats. Borchard again pushed him away with both hands making contact with his shoulders, following which Sebastian fell to the ground. Borchard then said to Sebastian, 'OK, you're under arrest for refusing to comply with a direction to leave railway land'. He was subsequently handcuffed by Borchard who described him as 'kicking out with his legs, thrashing about on the ground' and in order to control him for his safety and their own Sinha stood on one leg and Borchard stood on the other. Sanderson assisted by holding down his torso." His Honour noted that a more detailed description was contained in the statement of Sinha. These notes stated: "The male turned around and walked back towards us in an aggressive manner, moving quickly towards us. John pushed him back again and he stumbled. At some point John warned him that he would be arrested if he returned. As the male tried to come back at us he stumbled again. John and I arrested him. John applied the handcuffs while he was on the ground and struggling in my view to assault us. The male got up several times. We tried to contain him again by putting him on the ground and crossing his legs. He kept getting up and Chris (Sanderson) came to assist us. To finally contain him, Chris put his body weight on his front torso and John and I pinned down a leg each. He then remained fairly contained until the police arrived." 103So far as Christian was concerned, Transit Officer Jimenez provided the following description of his arrest and restraint (as quoted by the trial judge): "We carried POI2 (Christian) out and down Showground Road ramp to the front of the station. I can't recall exactly when we cuffed him, but I think it was upstairs on the concourse. He was arrested, and cuffed because of his aggression and his numerous offences including smoking, drinking, swearing and not having a ticket. About 5 or 6 minutes after POI2 was cuffed, he complained that they were too tight. I adjusted the cuffs so they were more comfortable. At one stage POI2 managed to bring his handcuffed hands across the front of his body. Later to contain him I put my weight across his body. When the police arrived POI2 said something like, 'Get this fat fucking cunt off me'. A female officer told him that I would not get off him until backup came and said something to him like, 'I know how aggressive you are'." 104Sidhu said that Christian was carried down the ramp and onto the pavement near the side of the ramp wall on the street side. He said he was placed face-down and handcuffed with his hands behind his back. He said he came up on his knees and managed to move his hands in front of his body and said something like, "I'll turn psycho". The note continued: "The position was dangerous for all us, with his arms free to swing with his handcuffs, following which he was placed on the ground and kept in that position until the police arrived." 105The trial judge found that during the course of their restraint both plaintiffs continued to be abusive. Indeed, when the police arrived they continued to be aggressive and abusive and used offensive language. Such was the extent of their aggressive behaviour that Senior Constable Wolseley, when she arrived, threatened to use capsicum spray to subdue them. Another police officer, Constable Belinda Baker, said that when she arrived they were struggling on the ground, "yelling and swearing and placed in the rear of the police truck due to their aggressive behaviour". Senior Constable Lewis described the plaintiffs as "intoxicated and aggressive". The trial judge accepted that, upon their removal, the plaintiffs continued to be abusive and aggressive, and used offensive language. He added this comment: "Further, had they not been arrested and restrained they were intent on re-entering the railway property and in Sebastian's case he attempted to do so. Bearing in mind that Christian at all times was in support of his brother I infer that had he not been restrained, he would similarly have attempted to gain re-entry. Their behaviour was such that they were not prepared to leave the station voluntarily and in the absence of the restraint there was a possibility of physical confrontation with the transit officers which may well have exposed both the plaintiffs and the transit officers to physical injury. The manner of restraint was, in all the circumstances, reasonable, having regard to their aggressive behaviour." 106The trial judge was also satisfied that, had the plaintiffs moved away from the station after they had been removed from the concourse, the occasion for their restraint probably would not have occurred. He found that it was their "subsequent behaviour" which led to their arrest and restraint until the police arrived. He was satisfied of the likelihood that both plaintiffs would have re-entered the station leading to a further confrontation, had they not been restrained. 107The submissions on this point at trial were within a brief compass. Mr Thompson submitted that the power to effect a "citizen's arrest" did not arise under s 352(1)(a) of the Crimes Act 1900 (NSW) (as it then stood) because what was involved here, at most, was a breach of a regulation and not an offence under an Act. This interpretation did not find favour with the trial judge. He determined that breaches of the Regulations might properly be described as offences under the Rail Safety Act 2002 (NSW). His Honour's conclusions in relation to the false imprisonment claim were as follows: "Having regard to the circumstances, I am not satisfied that the claim based on false imprisonment has been established. The plaintiffs were arrested and detained because of their failure to comply with a direction to leave railway property, such direction being lawfully given and given further at a time when Sebastian attempted to gain re-entry. In the absence of restraint, and had re-entry been achieved, further breaches of the Regulation were likely to occur, particularly having regard to their intoxicated state and their aggressive and abusive behaviour. The police were called and arrived within 5 or 10 minutes, so the time of restraint was not unduly protracted. In evaluating the conduct of the transit officers the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight (see Macintosh v Webster (1980) 43 FLR 112). Having regard to the plaintiffs' aggressive and abusive behaviour and the fact that they were thrashing around while on the ground, the method used by the transit officers to restrain them, namely using handcuffs, placing them on the ground and sitting on them, was a reasonable application of force in those circumstances. I am also of the opinion that in the circumstances in which the transit officers were confronted that there was a valid exercise of the power of arrest permitted pursuant to s 352(1) of the Crimes Act ." 108The final liability claim considered by his Honour was that based on the tort of injurious falsehood. In this regard, the plaintiffs placed reliance upon statements made by Transit Officers Borchard and Schofield to the police. The police had been told that the two males had been "drinking and smoking on the platform". The falsehood relied upon was that neither plaintiff went down to the platform. At all times, they were in fact on the railway concourse above it. In addition, there was the fact that Christian had not been smoking at all. His Honour then referred to Palmer-Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388. In particular, his Honour referred to a passage which established that the plaintiff in a claim for injurious falsehood must establish falsity, malice and special damage. His Honour dismissed the claim on the basis that the plaintiffs had not established either malice or special damage. In discussing the issue, his Honour said: "The inaccuracies referred to by Mr Thompson in his submissions were, in my view, minor. It is true there was no evidence that Christian was smoking, such factor being corrected by Schofield when he spoke to the police. The plaintiffs had not in fact reached the platform, but at one point had passed through the barriers leading to the platform. There is no issue that the plaintiffs were drunk and refused to comply with a direction to leave, were swearing and did not have tickets for travel. I do not regard the presence of such minor inconsistencies as demonstrating malice on the part of the transit officers concerned... ... having regard to the breaches to which I have referred, I am not satisfied that Borchard's error in stating that two males were smoking instead of one, and Schofield's statement that swearing and smoking was on a platform rather than other railway property were reported maliciously or established special damage." It might again be noted that the penalty notices issued against Christian did not include one relating to an allegation of smoking on railway land. 109His Honour then considered the issue of damages. There is no need for me to repeat the detail of the trial judge's examination of the medical material before him. It was a very comprehensive analysis. His conclusion regarding Sebastian was that he was not satisfied that Sebastian sustained an injury to his back or right knee. At most, he may have suffered some soft tissue bruising. In relation to Christian, the trial judge found that, apart from the injury to his lip caused by Schofield striking him, he was not satisfied that Christian had sustained any injury prior to his being arrested and detained. In relation to both brothers, his Honour said: "Any injuries which the plaintiffs sustained were in the course of them, being lawfully restrained and awaiting the arrival of police. Such injuries, as I have found, were at best insignificant and were the result of their own violent and irrational response while being arrested and restrained. I do not regard the force used as unreasonable in the circumstances." 110His Honour added that, if it were subsequently found contrary to his view, that injuries were sustained as a consequence of false imprisonment, or were the result of assault after the plaintiffs were ejected, he would have assessed such damages in each case at $5,000. 111The trial judge then assessed damages in relation to Schofield's assault. He thought such damages were restricted to the act of Schofield lunging at Sebastian, coming into contact with his neck or throat, ripping his shirt and forcing him to the ground. His Honour described this as "a frightening experience". He assessed the damages in favour of Sebastian at $5,000. 112On the issue of aggravated damages for Sebastian, his Honour said: "Aggravated damages are claimed. Such damages may be awarded where the defendant has acted in committing a tort with contumelious disregard for the plaintiff's rights in an insulting or high-handed way or with malice. Such conduct must have increased the plaintiff's suffering. I am of the opinion that the actions of the second defendant, were, in the circumstances, high-handed, which would have increased the plaintiff's suffering, warranting an award of aggravated damages. I take into consideration what could only be described as the provocative behaviour of the plaintiffs and their belligerence in assessing such award. I regard an assessment in the case of Sebastian of $5,000 as appropriate for aggravated damages, making a total of $10,000 in damages." 113In relation to the assault on Christian, his Honour stated that he regarded this as a "more serious assault" than that sustained by Sebastian. Christian had been "struck two or three times in the region of the face and mouth, causing his lip to bleed. His head was also slammed into the ground." 114The excuse offered by Schofield that Christian was holding onto his leg did not warrant the reaction by him. In relation to Schofield's actions, his Honour commented: "His actions were inappropriate and regarded as such by a number of the transit officers. They were high-handed and no doubt added to the suffering of the plaintiff." His Honour assessed damages in favour of Christian in the sum of $7,000 and aggravated damages in the sum of $5,000, making the total damages $12,000. 115On the issue of exemplary damages, the trial judge said: "I do not regard either case as appropriate for the award of exemplary damages. I bear in mind that the power to award such damages should be exercised with restraint. In order to qualify for such an award the defendant's conduct must be of such a character that it merits punishment, so that it must have been knowingly wanton, fraudulent, malicious, violent, cruel, insolent, high-handed or an abuse of power. Also of relevance in this case, as far as exemplary damages are concerned, is the abuse and belligerent behaviour of the plaintiffs. I also take into consideration the fact that the second defendant was prosecuted for assault on both plaintiffs and found guilty of those offences in the local court. The second defendant appealed to the District Court and the conviction in respect of Christian was quashed. The finding of guilt in respect of Sebastian was confirmed, but his conviction was quashed pursuant to the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999. Nevertheless, such matters remain on the criminal record of the second defendant and in that sense could be regarded as a punishment as a result of the events of that evening. He was also subject to disciplinary proceedings and suspended from his employment." 116Finally, in relation to the claims against the transit officers (other than Schofield) his Honour said: "I do not regard the actions of the third to the seventh defendants as constituting guilt of any of the torts alleged or for any of the damages sustained by the plaintiffs. The actions of the second defendant were without warning to them and their subsequent behaviour and the removal of the plaintiffs and the subsequent restraint in my view was lawful." 117Since State Rail had agreed that it would be vicariously liable for any verdict against Schofield, his Honour made orders and entered verdicts in favour of the two brothers in the sums mentioned at the outset of these reasons.

Resolution of the issues 118I turn now to examine and respond to the grounds of appeal. Both the grounds of appeal and submissions for the appellants have been amended a number of times. At the hearing of the appeal, however, a number of the grounds were either amended or abandoned, so the matters in contest have been, to some degree, reduced. There remain, however, well over thirty grounds in each appeal. Rather than deal with each ground of appeal individually, I will adopt the course sensibly used by the trial judge. This was to identify broad topics in dispute for the purposes of analysis. I will, however, indicate the relevant grounds by reference to their corresponding numbers in the final Amended Notice of Appeal in each case.

1. Was a valid direction to leave given to both brothers? [Sebastian - Grounds 1 to 9, Third Amended Notice of Appeal; Christian - Grounds 1 to 10, Third Amended Notice of Appeal]. 119Before addressing the circumstances involved in these grounds, it is necessary to note that in the final Notice of Appeal, each appellant had particularised a number of factual findings made by the trial judge that were the subject of challenge in the appeal. There were three challenges made by Sebastian and over twenty challenges made by Christian. A number related to the issues now to be discussed. The challenges, however, were substantially modified or abandoned at the hearing of the appeal. Those that remain will be examined in their particular context. 120Sebastian had been drinking intoxicating liquor on railway land on the morning in question. That matter was not disputed. He had also been smoking on railway land. Again, that matter was not disputed. Mr Neil did not argue that those two matters were not offences under the relevant conduct regulations. Senior counsel argued, however, that the conduct of Sebastian, in drinking and smoking on the concourse, did not, in the circumstances, entitle the transit officers to direct him to leave, and that, consequently, he was not bound to do so. Mr Neil argued that, if this was so, it would have a substantial bearing on the next issue to be discussed, namely the removal of Sebastian from the concourse. 121Christian had also been drinking on the concourse but he, like his brother, had complied with the direction to leave the concourse while drinking. Both brothers may have intended to travel without a ticket, but they had not, senior counsel argued, attempted to do so. 122Mr Neil further argued that there had been no justification for a direction under cl 18 based on the provisions of cl 17. Overall, his submission was that there was no ground available whereby a direction to leave could have validly been given to Sebastian. 123These arguments suggest that it is necessary to examine whether there was in fact a breach of any of cl 5 and 57, 13, 15, or 17, and whether the power to give a direction to leave under either cl 18 or 39 had been enlivened. The arguments also suggest that it is necessary to determine whether the trial judge erred in relation to any of his findings in these regards. 124For reasons I shall in due course state, the necessary inquiry is really confined to the question of whether, in Sebastian's case (or, for that matter, in Christian's case), a direction under cl 59 was enlivened by a breach of cl 3 of the regulations ("use offensive language... on any railway land"). 125Before stating those reasons, however, it will be convenient to refer to the legislation and regulations referable to the events which occurred at Gosford Railway Station on the morning in question. 126The relevant statute in force at the time was the Rail Safety Act . The object of the Act is "to promote the safe construction, operation and maintenance of railways" (s 3). Railway offences are dealt with in s 95, as follows: " 95 Railway offences The regulations may make provision for or with respect to the following: (a) the regulation or prohibition of persons travelling or attempting to travel on a train without paying a fare or without paying the correct fare, (b) the regulation or prohibition of persons who travel or attempt to travel on a train for which they do not have the correct, or a valid, ticket or pass, (c) the regulation or prohibition of persons who fail to pay a fare on demand, (d) the regulation or prohibition of eating, drinking or smoking in trains or in other public areas of a railway, (e) the conduct of passengers and drivers on trains or in other parts of a railway, (f) the powers and duties of drivers of trains and of authorised officers, (g) the authority of drivers of trains, and of authorised officers, to eject persons guilty of any contravention of a regulation." (There are other matters not relevant to the present proceedings). 127An "authorised officer" is defined in s 4(1) of the Rail Safety Act . There was no dispute, ultimately, in the present proceedings that the transit officers were authorised officers. 128Commencement of proceedings for an offence under the Rail Safety Act is dealt with in s 103, as follows: " 103 Proceedings for offences (1) Proceedings for an offence against this Act or the regulations are to be disposed of in a summary manner before: (a) a Local Court, or (b) the Supreme Court in its summary jurisdiction. (2) The maximum pecuniary penalty that may be imposed by a Local Court in proceedings for an offence against this Act or the regulations is 500 penalty units. (3) Proceedings for an offence against this Act or the regulations may be taken within 2 years after the offence was committed despite anything in any other Act. (4) In any proceedings for an offence under this Act, the onus of proving that a person had a reasonable excuse is on the defendant." 129Section 105 enables an authorised officer to serve a penalty notice on a person who appears to the officer to have committed a penalty notice offence. 130There is a further regulation-making section under the Miscellaneous division of the Act. Section 117 enables the Governor to make regulations, "not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to the Act". The topics included extend to "the regulation of the conduct of passengers and other persons on railways, and the exclusion of persons from railways". 131I turn now to the Rail Safety (General) Regulation 2003. The Regulation was made by his Excellency the Governor with the advice of the Executive Council under the Rail Safety Act . The object of the Regulation is stated to be "to make provision for a number of matters", including the following (see Rail Safety (General) Regulation 2003, Explanatory Note, Gazette No 39, 7 February 2003, 800): "(b) offences relating to the misuse of tickets, failure to obtain a ticket, failure to present a ticket for inspection and failure to offer a ticket for collection or processing, (c) offences related to travelling on a train without paying a fare, (d) offences prohibiting certain conduct on a train or railway land." 132Clause 3 contains a definition of "railway land", as follows: "railway land means: (a) land vested in, or under the control of, an accredited person for a railway and used in connection with the railway... (b) land over which a light rail system operates (whether by way of easements or otherwise) restricted area of a station means: (a) if the station has no ticket barrier-the platform, and (b) if the station has a ticket barrier-the platform and all other parts of the station between the platform and the ticket barrier." 133Clause 5 relevantly provides: " 5 Fare to be paid and ticket to be held (1) A person must not, without reasonable excuse, travel on a train unless: (a) the fare for the person's travel has been paid, and (b) the person (or someone accompanying the person) holds a valid ticket for the person's travel. Maximum penalty: 5 penalty units." 134A defence is provided if a person is able to prove that there were no facilities available at the station at which the person boarded the train to enable that person to pay the fare or obtain a ticket before boarding the train. (There are other defences not relevant to the present proceedings). 135Clause 13 is in the following terms: " 13 Conduct generally (1) A person must not on any train, on any railway land or on any part of monorail works wilfully: (a) use offensive language, or (b) behave offensively, or Maximum penalty: 5 penalty units." 136Clause 15 is as follows: " 15 Smoking generally prohibited (1) A person must not smoke on any train or on any part of railway land or any part of monorail works that is roofed or otherwise covered. Maximum penalty: 5 penalty units." 137Clauses 17 and 18 are as follows: " 17 Drinking of alcohol generally prohibited (1) A person must not drink any intoxicating liquor on any train, any railway land or any part of monorail works. Maximum penalty: 5 penalty units. ... (3) In this clause, drink includes be in possession of an opened container of intoxicating liquor. 18 Passengers who are intoxicated (1) If, in the opinion of an authorised officer, a person on a station or a train, or at a light rail stop: (a) is under the influence of intoxicating liquor or another drug, and (b) is causing, or is likely to cause, a nuisance or annoyance to other persons on the station or train... the authorised officer may direct the person to leave the station, train... (2) A person must comply with a direction given under subclause (1). Maximum penalty: 5 penalty units." 138Clause 39 is as follows: " 39 Direction to leave train or premises (1) If, in the opinion of an authorised officer, a person is committing an offence under this Part, the authorised officer may direct the person to leave the train, railway land ... concerned. (2) A person must comply with a direction given under subclause (1). Maximum penalty: 5 penalty units." 139Clause 57 provides that a person who attempts to do anything that is prohibited by a provision of the Regulation is taken to have committed an offence under that provision, punishable accordingly. Clause 58 then provides: " 58 Removal of persons A person who refuses or fails to comply with a direction given under this Regulation to leave any train or railway land or part of monorail works may be removed from the train or land or part of the monorail works by an authorised officer."

Sebastian 140Although not referred to by the trial judge, it seems from the transit officers' statements, tendered by the plaintiffs, that a third direction was given to leave. This direction had been given by Schofield. The sequence of events appeared to be that, about ten or fifteen minutes before Sanderson gave his directions to leave, Schofield, together with Transit Officers Blight, and Jimenez, had been speaking to the brothers about drinking and smoking on railway property. Although the various statements do not match up precisely in detail, the sequence appears to be that a female officer (Ms Truscott) came into the meal room and said that there were two males drinking on the concourse area and "giving the security guard on duty a hard time". This was a reference to the earlier requests made by Transit Officers Sidhu and Singh and, separately, by Security Officer Riley. It is reasonably clear that the person "looking for a blue" (as described by Ms Truscott) was Sebastian, not Christian. I do not consider that the trial judge's findings suggested otherwise. 141It was at that point that Schofield and the other officers I have mentioned moved from the staff room and spoke to both brothers, informing them that they could not drink on railway land. It seems that this discussion was relatively amicable, with the brothers agreeing to finish their drinks outside without much protest. It was when they came back onto the concourse area that the officers noticed that Sebastian was smoking. Schofield told him to put his cigarette out, or to finish it outside (depending on which version is correct) and, once again, that direction appeared to have been complied with, without any overt hostility or aggression. 142Schofield, Sinha and Jimenez then left the concourse by way of the western exit, out into the street. It was some little time later that observations were made by other transit officers of the two brothers walking through the barriers onto the restricted area above the railway platform. They were directed back out onto the concourse area where the discussions with Sanderson, Borchard and others took place. These conversations continued for about six minutes. 143It seems that, shortly prior to the final direction being given by Sanderson, Schofield had come over to join the group, as had other transit officers. According to Transit Officer Blight, after a little time, Schofield joined in the discussion. He said something like: "What's going on here, I told you boys to behave yourself. You're going to have to leave the station." (This was the third direction to leave the station). 144Transit Officer Jimenez said that "Schofield spoke to the men and told them to leave the station". He heard Sebastian say something like, "I'll kill you, you fucking cunts. I'm not leaving the station". It was at that time, or shortly thereafter, that Schofield lunged at Sebastian. Transit Officer Sinha also heard Schofield give "the males a directive to leave the station", but they "continued to swear at the TOs present". According to his statement, it was at that point that Schofield said, "I've already told you guys to behave". 145It is reasonable to conclude, accordingly, that Sanderson gave a direction to leave based on the use of offensive language. It is also reasonable to conclude that he gave a second direction. These were the findings made by the trial judge. It is also clear, however, that Schofield himself gave a similar direction, following upon the two directions given by Sanderson. Given the overall context, there is no reason to doubt that Schofield's direction was given on the same basis, although there is no precise record of the actual words he used (Schofield did not give a statement to the railway inquiry into the incident, and was not called by either side as a witness at trial). In my opinion, the trial judge was correct to conclude that Sebastian had committed a number of offences under cl 13 (offensive language) and that Sanderson was entitled, pursuant to cl 39, to direct him to leave the concourse area. The practical consequence of compliance with that direction is that Sebastian would not have been entitled to go down onto the platform and attempt to board a train. Of course, as the trial judge noted, Sebastian had no ticket and no intention of obtaining a ticket, but the direction, as I perceive it, was not given on that basis. It undoubtedly provided the context in which the escalation of the offensive language took place, but it was not the ultimate basis for the direction. 146The grounds of appeal also raised questions about whether Sebastian's language could properly be described as "offensive". It was further argued that Sebastian was not using offensive language precisely at the time the direction was given. In that regard, it was argued that cl 39 speaks in the present tense ("if... a person is committing an offence under this Part"). As to the first argument, there was a plethora of evidence that Sebastian was repeatedly using the word "fuck" or "fucking" in a loud belligerent and abusive manner throughout his presence on railway property. As the CCTV footage shows, there were members of the public moving through the concourse area, notwithstanding that it was very early in the morning. The use of the type of language employed by Sebastian and, in particular, its belligerent and aggressive tone, plainly allowed for a conclusion that, in the circumstances, repeated breaches of cl 13 had occurred. The behaviour was capable in law of establishing a prima facie case against Sebastian and, if it occurred as described, could or would have established beyond reasonable doubt that he was guilty of the relevant offences ( Burns v Seagrave & Anor [2000] NSWSC 77 per Simpson J). As to the further argument, the language was continuous, up to and beyond the giving of the three directions to which I have made reference. There is no substance in either of these two arguments.

Christian 147It is clear that Christian was not as belligerent as his brother. However, there was ample evidence before the trial judge to satisfy him that Christian had been, and was, using the same type of offensive language as his brother, although not perhaps to the same extent. Originally there were challenges to the trial judge's findings in this respect. On the appeal hearing, however, Mr Neil essentially withdrew the challenges to the findings that Christian had used offensive language. As I have said, there was ample evidence that Christian had been in breach of cl 3. There was also evidence that, at the time of giving the directions, both Christian and his brother were "swearing" at the transit officers, and swearing generally. This appears plainly from the detail of the statements of Transit Officers Blight, Sinha, Jimenez, Singh and Sidhu. 148The arguments on behalf of Christian essentially raised two matters relevant to the issues presently under discussion. The first was that the trial judge may have "misrepresented" Christian by attributing to him a remark that was, in fact, made by his brother shortly before Schofield assaulted Sebastian. Secondly, it was argued that the direction to leave was not actually given to Christian, but to his elder brother. If that were so, senior counsel argued, there would have been no valid basis on which Christian was removed or later arrested. 149I have earlier set out in full the passage where the trial judge described the conversation that took place between the brothers and the transit officers near the barrier and the ticket vending machines. I have, for my part, carefully examined the various statements from which his Honour took the conversations. It appears, in the main, that the trial judge has correctly relied on a number of the transit officers' statements, in order to set out the dialogue in which he attributes remarks to both Sebastian and Christian. In particular, the dialogue shows, as has been mentioned, that at one point, Sanderson indicated to Christian that he would be prepared to let him buy a ticket and catch the train. It will be recalled that Sanderson had said: "Mate you can go and by [sic] a ticket and catch a train if you want but he's not going down there." 150To this, Christian had replied: "I'm not going anywhere, he's my brother." 151This brief dialogue is, in fact, taken from Sanderson's statement. Transit Officer Borchard put the relevant exchange in slightly different terms: "POI2 said, 'Not if I've got a fucking 50 dollar note. Anyway, I'm getting on the fucking train. Whose going to fucking stop me, you?'" 152Sanderson said: "OK that's it, you're not getting on the train. I'm giving you a direction to leave the station." 153Transit Officer Sanderson turned to POI1 and said: "You're OK mate. Go buy a ticket and you can get on the train." 154Borchard said to POI1: "Come on mate, you don't want to be involved in this guy's troubles, why don't you go buy your ticket and get on the train." 155POI2 said: "He's not going anywhere, he's my fucking brother. We're catching the fucking train." 156It was then that Transit Officer Sanderson said: "I'm giving you a direction to leave. Leave the station now." 157The point needs to be made that, throughout all the statements, Sebastian had been referred to as "POI1" and Christian had been referred to as "POI2". As appears from the above dialogue, however, Transit Officer Borchard referred to Sebastian as "POI2". 158It was probably for this reason that the trial judge, when he came to consider the broad issues argued before him, attributed the remark, "He's not going anywhere, he's my fucking brother, we're catching the fucking train", to Christian. In fact, it appears this was said by Sebastian and not by his younger brother. However, I do not think that anything of major importance turns on this error. Sanderson, in his statement, correctly attributed to Christian (after he had been offered the opportunity of travelling on the train by himself) the words: "I'm not going anywhere. He's my brother." 159As I have said, in the main part of the trial judge's decision, where he outlined the sequence of facts and dialogue, he attributed these words correctly to Christian. 160What follows from all this? In my opinion, the trial judge, notwithstanding the wrongful attribution of the remark, was justified in concluding that Christian had used offensive language and was in breach of cl 13 of the Rail Safety (General) Regulation. There was ample evidence to support that conclusion, when regard is had to the detail contained in the other officers' statements. Secondly, although the transit officers were initially prepared to allow Christian to travel on the train if he bought a ticket, the position crystallised when Christian aligned himself with his brother by indicating, in effect, that he too insisted that his brother be allowed to travel with him on the train, and that they were both prepared to travel without tickets. The combined outcome of the remarks made by both brothers showed that they stood shoulder-to-shoulder on this issue. Moreover, after this statement, it was clear that Christian had used further offensive language and indulged in swearing, although perhaps not to the extent that Sebastian had. 161While it is true that the first direction appears to have been given only to Sebastian, it is clear, in my view, that the second direction given by Sanderson, and the third direction given by Schofield, were clearly directed to both brothers. By this time, it had been made abundantly clear that the brothers were committed to an enterprise to travel back to Wyong without train tickets. More importantly, their aggressive insistence on this was accompanied by offensive swearing used indiscriminately by each of them. 162It is clear that when Schofield made his lunge at Sebastian that, at that point, both brothers had refused to comply with the directions they had been given, and were refusing to leave the concourse area. Both brothers, as I have said, remained resolute in their intention to travel to Wyong by train without purchasing tickets for the journey. The trial judge was correct to find that a valid direction had been given to both brothers on the basis of their use of offensive language. It was clearly seen as such by the transit officers who witnessed the giving of the directions and gave statements to the railway enquiry. The trial judge was also entitled to find that the consequences of failure to comply were also stated. Although his Honour went on to consider whether there were other bases which would or might have enlivened the giving of a direction (for example, attempting to travel on a train without a ticket, etc), it was strictly unnecessary for him to do so. Equally, it is unnecessary for this court to examine those questions in light of the fact that the direction was validly given to each brother on the basis of breaches of cl 13.

2. Did the transit officers (apart from Schofield) assault the appellants? [Sebastian - Grounds 10, 11 and 12; Christian - Grounds 12, 13 and 14] 163The starting point for the submissions on this issue is the trial judge's finding that the defendants were entitled to remove the brothers from railway property. As I have said, there were three directions to leave given, and the last two may properly be regarded as having been given to both brothers. It is clear that, despite the directions that had been given, neither Sebastian nor Christian was going to leave of his own volition. Their truculent behaviour, obduracy and offensive language were continuing features of their determination to remain at the station and travel by train without tickets. It was clearly open to the trial judge to make the finding he did. 164The second finding of importance was that Schofield assaulted the appellants. As his Honour found, there was no need for such a violent reaction. The brothers were clearly outnumbered, and they could have been physically escorted and restrained without the necessity for the type of assault launched by Schofield. His Honour thought, however, that an examination of the CCTV footage demonstrated that, leaving aside the assault by Schofield, the brothers were physically escorted and restrained in a reasonable fashion. His Honour was also satisfied that there was evidence to show that the transit officers, other than Schofield, did not participate in an assault on the brothers. Indeed there was evidence that there was dissent from Schofield's actions. The removal was effected quite rapidly. Christian was carried by a group of officers, and Sebastian escorted by a transit officer on either side of him. The evidence plainly showed that they remained determined not to leave railway property; they struggled and were resistant to being removed. Indeed, after removal, Sebastian charged back in to the area leading to the concourse and endeavoured to re-enter. 165Christian's lip injury was, of course, caused by Schofield's assault upon him. Schofield also banged Christian's head into the ground, but it does not seem that any lasting injuries or ill effects were occasioned by this, according to the trial judge's findings. Transit Officer Jimenez said that Christian resisted being removed. He carried him, holding his right arm, while another transit officer carried his left arm, and two others carried his feet. Christian was described as "continuing to be resistive and aggressive". 166The trial judge held that, when Transit Officers Borchard and Sinha took Sebastian to the exit, he was told, "Now leave, don't come back". Contrary to those directions, according to the findings, Sebastian turned around, stepped very close to Borchard, became aggressive, swore and made threats. There was some pushing and Borchard said to Sebastian, "OK, you're under arrest for refusing to comply with a direction to leave railway land". Sebastian was described as "kicking out with his legs, thrashing about on the ground and requiring restraint". 167In examining the question as to whether the transit officers (other than Schofield) assaulted either of the plaintiffs, the trial judge, it seems, had carefully examined the CCTV footage. This was also examined for the purpose of assessing the issue as to whether Schofield had assaulted the plaintiffs. This court was given the same opportunity on appeal as had been given to the trial judge. 168In my opinion, after a careful examination of the moving images, nothing can be seen in the footage that casts any doubt on the validity of his Honour's findings. I am satisfied, for this reason, that the factual findings to which I have made reference were clearly open to the trial judge. Mr Neil's submission, that the transit officers were assisting Schofield in connection with his illegal assaults upon the brothers, cannot be accepted. 169At the conclusion of the hearing of the appeal, Mr Hooke gave the court a bundle of coloured still photographs, which were assumed to be the equivalent of the black and white stills exhibited before the trial judge. The copies in the Blue Appeal Book were discoloured by the reproduction process, and they were virtually unexaminable. 170There was some controversy between the parties as to the use the court might make of the colour stills. The original stills had been contained in exhibit H before the trial judge. The colour images provided to us were not before the primary judge, but were generally thought to be the same images as the black and white stills that had been provided to the court below. Mr Hooke asked that the colour stills be treated with caution. He submitted that they did not appear to be in a strict chronological sequence, and that they therefore could not be regarded as having been assembled in any particular order. 171Mr Neil (while acknowledging that there was some disparity between the original exhibits and the colour stills) suggested that they might be regarded as the same scenes as appeared in the black and white still photographs in the Appeal Book (less photos 18 and 19). In any event, Mr Neil submitted that the colour photographs were the same as those which had been attached to Mr Hooke's letter to the court after the close of the hearing. Mr Neil submitted that the court should inspect the still photographs and compare them with the corresponding CCTV scenes to determine whether they were, in fact, in chronological order. 172In my view, considerable caution should be exercised by the Court in the use it makes of the colour stills. It is clearly not possible to conclude that every frame shown on the CCTV footage has been extracted to make up the sequence of the still photographs. It is clear from my examination that some sequences are missing. The photos are of some limited use, however, in assessing some aspects of the assault by Schofield on both plaintiffs. 173There are, for example, still photographs demonstrating that Schofield took hold of Christian, perhaps briefly, in a manner not detailed in the transit officers' statements. Photographs 9 to 15 show Christian apparently reprehending Schofield after that transit officer had lunged at Sebastian. Schofield places a hand on each of Christian's arms, and the two men come into close facial contact. Schofield then pushes Christian to one side while looking back towards Sebastian. Photograph 17 shows Christian being restrained by another officer, and apparently leaning or lunging towards Schofield. Thereafter, the photographs are not clear, although it seems that Christian was struggling and still attempting to get at Schofield (photographs 18 to 20). Photographs 21 to 23 show a number of the transit officers struggling with Christian. It is presumably after this that he falls to the ground and (see photograph 26) latches onto Schofield's leg. I have also examined and compared the moving images in the CCTV footage, and it is apparent that, while the still photographs are in apparent chronological order, they cannot be said to capture every movement of the participants' actions in full sequence. 174There was some suggestion during the course of the oral argument that photograph 17 may have shown that the first blow administered by Schofield to Christian occurred while Christian was standing and confronting Schofield. Having carefully viewed both the still and moving images, I do not consider that this can be seen to be the situation. Rather, when the moving sequence is examined, it appears from this image that Christian is attempting to confront Schofield. It remains the position that Schofield's first contact with Christian was when he placed his hands on Christian's arms, and thrust him to one side while he continued to deal with Sebastian. The trial judge referred to this movement in his description of the material on the CCTV footage when he said: "Schofield is observed on the CCTV placing his hands on Christian's shoulders and pulling him in the direction of Showground Rd. Christian is then taken by four transit officers and lifted bodily with one leg dragging." 175Earlier, the trial judge had said: "... Christian grabbed Schofield around his lower leg and Schofield told him to let go three times. After the third time, Schofield hit Christian in the face area with an open backhand in what he described as a defensive action and he noticed blood on Christian's general mouth area after he was struck." (This was a reference to the statement details taken from Transit Officer Blight). 176Overall, I do not think there is anything demonstrated in the still photographs which casts doubt on the overall conclusions I have drawn from my examination of the CCTV footage. It is of interest to note, however, the time sequence involved in the giving of the directions to leave. The confrontation between the two brothers and the transit officers on the concourse area lasted about six minutes. It is clear that Schofield was present during approximately three minutes of that period, although for most of that time he appears to act merely as an observer, standing near Sanderson with his arms folded. It is likely that Schofield would have heard the directions given by Sanderson, or at least the second of those directions. 177Mr Neil's submissions (in relation to both brothers) was that there was no real need to physically restrain the two men for the purposes of their removal. He referred to the number of transit officers who were either surrounding the brothers, or near them. He referred to the fact that neither brother demonstrated any act of physical aggression prior to Schofield's lunge at Sebastian. Finally, he submitted that none of the transit officers came to the assistance of either man when he was attacked by Schofield. In my opinion, there is no substance in any of these arguments. 178A reasonable assessment of the events that occurred on the evening, and an evaluation of the need for physical removal, had to be considered against the realistic background of the situation. It is true that the loss of control by Schofield undoubtedly precipitated the immediate need to physically remove the brothers. Sanderson had been engaged in a long dialogue in an attempt to calm the brothers down and point out the unreasonableness of their behaviour. They had failed to respond in a reasonable fashion and, ultimately, Sanderson was forced to give directions for them to leave, the second being given in the face of mounting vocal aggression from the brothers. There was nothing in their conduct that indicated they were going to comply with that direction. Everything about their language and general belligerence dictated the inevitable potential for physical restraint and removal. 179As I have said, Schofield's actions undoubtedly precipitated the seizure of the two brothers by the other officers, but that does not alter the fact that the two men were simply not going to obey the directions that had been given, and were inevitably going to require physical restraint and removal. Sebastian's threats to Schofield were a clear indication that the situation was at or near flashpoint. It is appropriate and necessary to assess the overall situation by having regard to the reality of the difficulties that confronted the officers, and the extreme pressure that was clearly building in that situation ( Woodley v Boyd [2001] NSWCA 35 at [37] per Heydon JA, cited with approval in Pringle v Everingham [2006] NSWCA 195; (2006) 46 MVR 58 at [67]; Carter v Walker [2010] VSCA 340 at [142]). It was open to the trial judge to find that physical restraint and removal was necessary. It was equally open to the trial judge to find that the force used by the transit officers in removing the brothers was reasonable. 180A collateral challenge was made on this point by Mr Neil, when he submitted that Schofield's assault "wiped the slate clean" or "interrupted' the procedural validity of the directions to leave that had been given. I would reject that submission also. The assault by Schofield, the seizure by the other officers, and the removal of the brothers all happened within seconds. In practical terms, Schofield's assault precipitated the need to seize and remove the brothers, but it did not undermine the validity of the directions that had been given, and the fact that the brothers were simply refusing to leave at the time they were seized.

3. Was there an entitlement for the transit officers to arrest and detain the brothers until the police arrived? [Sebastian - Grounds 19 to 23; Christian - Grounds 20 to 25]. 181There were three matters of substance argued in relation to these grounds. First, Mr Neil argued that there was no factual basis on which an arrest was required. Secondly, senior counsel submitted that there was no justifiable basis in law enlivening the power of a citizen's arrest. Thirdly, it was suggested that his Honour ought to have held that the transit officers' response was, in all the circumstances, excessive. 182The first argument cannot be sustained. The trial judge made a detailed examination of the behaviour of both brothers in this regard. There is no need for me to set out the detail of these findings, as reference has been made to them already. The statements of Transit Officers Borchard, Sinha, and Singh contain ample illustration of the resistance offered by the appellants, their continued belligerent behaviour and, in the case of Sebastian, his attempts to re-enter the station. The resistance, offensive language and aggression continued, even after the police officers arrived. Indeed, it did not cease while the brothers were at the police station, a fact which no doubt contributed to their being placed in the cells there. 183The second argument requires an examination of s 352(1)(a) of the Crimes Act . At the relevant time, this was the only power under which transit officers could operate for the purposes in making what was described in argument as "a citizen's arrest". Section 352(1)(a) of the Crimes Act has now been repealed by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). However, at the relevant time, it was in force, and provided as follows: " 352 Person in act of committing or having committed an offence (1) Any constable or other person may without warrant apprehend, (a) any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act, (b) any person who has committed a serious indictable offence for which the person has not been tried, and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law." 184In plain terms, the transit officers had the ability to arrest the brothers, as they plainly purported to do, but only if each was "in the act of committing, or immediately after having committed" an offence punishable, whether by indictment or summary conviction, under any Act. 185The argument advanced before the trial judge, and in this court, was that the offences alleged against each appellant were only "punishable" under the Regulation. They were not "punishable" under an Act. 186The trial judge rejected this argument. His Honour's reasoning appears to have been that the breaches of the Regulation were properly to be regarded as offences under the Rail Safety Act . He referred with approval to a submission made by counsel for the defendants that "the power to make the regulations arose through s 95 of the Act, and without such power under the Act, the offences would not exist". After examining the various arguments further, the trial judge said: "Insofar as it is relevant, I am satisfied that the breaches of the regulations referred to are properly regarded as offences under the Act." 187As I have said, Mr Neil argued that the power of citizen's arrest conferred by s 352(1)(a) of the Crimes Act did not extend to an arrest for an offence punishable under a rule, regulation, ordinance or by-law. Additionally, he argued that neither Sebastian nor Christian was in the act of committing, nor had he just committed, any breach of the Rail Safety (General) Regulation at the time each brother was seized. In the absence of the power to arrest, the seizure and detention of each brother by the respondents, it was argued, was a wrongful imprisonment, for which each brother was entitled to damages. 188Quite apart from the reasons given by the trial judge, Mr Neil's argument seems to me, with all respect, to be misconceived. Senior counsel's argument is based on a construction of the section that suggests that a so-called "citizen's arrest" may only be made where a person has committed, or is committing, an offence punishable under an Act, as opposed to one punishable pursuant to a Regulation. He argued that, where a person has committed an offence in breach of a regulation, no power of arrest can arise. Although not stated explicitly in these terms, the argument advanced suggested that a distinction should be drawn between an offence that is created under an Act, as opposed to an offence which is created by a regulation. 189In my opinion, the argument is misconceived because it overlooks the actual language used in the Rail Safety Act. 190The starting point is the acknowledgement that, pursuant to s 352(1) of the Crimes Act , the type of offence that will, in the stipulated circumstances, justify an arrest is one where the offence is punishable, whether by indictment or on summary conviction, under any Act. The subsection focuses on the language in the relevant section of the Act under consideration, to determine whether the offence is one that is made punishable, whether by indictment or summary conviction. 191Plainly enough, cls 13 and 59 of the Rail Safety (General) Regulation create offences, and do so under the auspices of s 95 of the Rail Safety Act . In the present case, each of the brothers had, on the findings of the trial judge, committed those offences. The question is - how were each of those offences dealt with in the Act? 192Section 103 of the Rail Safety Act provides the answer to the question. It states that proceedings "for an offence against this Act or the Regulations" are to be disposed of "in a summary manner before (a) a local court, or (b) the Supreme Court in its summary jurisdiction". Thus, an offence against the Regulation is punishable on summary conviction, by virtue of s 103 of the Rail Safety Act . It may be safely said, accordingly, that each brother had been arrested immediately after having committed an offence that was punishable on summary conviction under the Rail Safety Act . In that situation, a power to arrest arose, which was available for use against both Sebastian and Christian. 193The trial judge had accepted the arguments of the respondent, that the power to make the Regulations arose under s 95 of the Act. His Honour concluded that "without such power under the Act the offences would not exist". This is undoubtedly correct, but I am not sure that it precisely answered the argument advanced by trial counsel on the plaintiffs' behalf. However, that argument was, for the reasons I have given, misconceived. In my view, the argument advanced on behalf of the appellants, both at trial and on this appeal, cannot succeed. 194The third and final argument was that the manner of arrest of each brother could not be said to be a measured response by the respondents to the conduct, such as it was, of the brothers. In this regard, Mr Neil argued that it is of the utmost importance that police officers know and observe the conditions for a valid arrest ( Re Bolton; Ex Parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 523 per Brennan J and 528-529 per Deane J; State of New South Wales v Riley [2003] NSWCA 208 at [141] per Hodgson JA). A fortiori, senior counsel argued, authorised officers under the Rail Safety Act must also know and observe these limits. 195The issue here is essentially one of fact. I am satisfied that it was open to the trial judge to conclude as he did. He was not satisfied that excessive force had been used. He took into account the fact that the brothers were held on the ground and then "sat upon to stop them thrashing around". He also took into account that handcuffs had been applied to restrain them. 196It is simply not realistic to argue, as did the appellants, that the objective of ensuring compliance with the directions that had been given could have been achieved by simply blocking Sebastian's path to the station, and delivering an oral direction to both brothers to "go away". It is clear that the officers were engaged, at one time, in two pursuits. They were attempting to remove the brothers from railway land for failure to obey valid directions, consequent upon breaches of cl 13 of the Rail Safety (General) Regulation. At the same time, the officers purported to arrest the brothers in respect of that failure to comply, and to restrain them pending the arrival of the police officers. In my view, it was open to the trial judge to find that the arrest was lawful in each case. It was also open to him to find that, in the absence of restraint, and had re-entry been achieved, further breaches of the Regulation were likely to occur, particularly having regard to the intoxicated state and the aggressive and abusive behaviour of each of the brothers. It was open to his Honour to find that the time of restraint was not unduly protracted, and that the method used by the transit officers to restrain them was a reasonable application of force in those circumstances. That question had to be judged by reference to the "pressure of events and the agony of the moment, and not by reference to hindsight" ( Woodley v Boyd at [37]; Pringle v Everingham at [67]).

4. Injurious falsehood [Sebastian - Grounds 25 to 29; Christian - Grounds 26 to 30]. 197The appellants complained that Borchard and Schofield made false representations of, and concerning, each of the brothers. In trial exhibit F, Constable Baker had stated that: "Borchard informed me that he saw the two males drinking and smoking on the platform. He also informed me that they did not have a rail pass." 198These statements were false, it was said, in a number of respects. First, Christian was never smoking at any time on the evening. Sebastian was smoking, not on the platform, but on the railway concourse above. Similarly, although both men were drinking, they were drinking on the concourse and not on the platform. 199Trial exhibit G contains statements made by Schofield to Senior Constable Lewis: "We've had a problem with those two guys. They're both drunk, were on railway property without tickets, have been smoking and swearing on the platform and they refused to leave when we told them." (Later, Schofield corrected the statement to police when he made it clear that Christian had not been smoking). 200The false statements alleged here were that the smoking and swearing was on the platform, whereas it had in fact occurred on the concourse above. 201The tort of injurious falsehood has been described as "a rare and anomalous tort": G. Sawer, "Second Thoughts on Defamation", Nation , 20 December 1958 at 6, cited in WL Morrison, "The New Law of Verbal Injury", 3 Sydney Law Review (195 -1961) at 4. One of the rare occasions when it has been considered by the High Court of Australia was in Palmer-Bruyn & Parker Pty Ltd v Parsons . Gummow J said, at 405: "The tort of 'injurious falsehood' (a term coined by Salmond) has its origins in actions for 'slander of title'. This involved aspersions cast upon the plaintiff's ownership of land which resulted in the plaintiff being unable to lease or sell the land. Despite the use of the term 'slander' and its 'unfortunate' association with the law of defamation, 'slander of title' appears to have been recognised as an action on the case for the special damage resulting from the defendant's interference. The action was slowly enlarged in the nineteenth century, until the position was reached in 1892 where, in Ratcliffe v Evans (1892) 2 QB 524 at 527-528, the modern foundation of the tort was established." 202Gummow J listed the elements of the action at 404: "Thus, generally, it is said that an action for injurious falsehood has four elements: (1) a false statement of or concerning the plaintiff's goods or business; (2) publication of that statement by the defendant to a third person; (3) malice on the part of the defendant; and (4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement." 203At 425, Kirby J stated his opinion of the "seven elements of the tort". These were expressed as follows: "(1) That the defendant published matter that was false; (2) That the falsity concerned the plaintiff or its property; (3) That such falsity was calculated to induce others not to deal with the plaintiff or was otherwise likely to damage the plaintiff; (4) That the publication was actuated by malice; (5) That the publication had the results complained of; (6) That those results included actual damage to the plaintiff; and (7) That such damage was either: (a) The result which the person publishing the false matter intended; or (b) The natural and probable result of such publication." 204One aspect of the difference between the elements as stated separately by Gummow and Kirby JJ was whether the case before the High Court raised for consideration the question as to how far the action for injurious falsehood extended to concepts of business or property. Gleeson CJ noted, at 393, that the particular matter did not fall for actual consideration. He referred to his earlier decision in the New South Wales Court of Appeal in Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 692-693. In that case, Gleeson CJ had allowed for the possibility that the tort might extend beyond the scope of an action that depended on disparagement of property or business. 205In Palmer-Bruyn & Parker Pty Ltd v Parsons, the High Court held (Callinan J dissenting) that reasonable foreseeability is not part of an action for injurious falsehood. In the course of that decision, however, Gummow J, like Gleeson CJ, found it unnecessary to decide whether the tort was broad enough " to include any damaging falsehood which interferes with 'prospective advantage, even of a non-commercial nature' with the consequence that the confinement of the first element to 'the goods or business' of the plaintiff might be considered too narrowly expressed" (at 407). Gummow J indicated that the matter had not been argued before the High Court, and that it was therefore not necessary to decide for present purposes. 206I will assume, without deciding, that the tort of injurious falsehood is available to the plaintiffs in the present matter, on the basis that false representations were allegedly made by the two transit officers to the police concerning each plaintiff. This particular aspect of the tort was not argued before this Court, nor was it raised for our consideration. 207Nevertheless, it is clear that the trial judge was perfectly justified in finding that the plaintiffs had failed to establish the elements of this tort. I have earlier set out the reasoning of the trial judge, and there is no need to repeat it. It is true that Christian had not been smoking on railway premises, but that was corrected by Schofield when he spoke to the police. It was true also that the brothers had not, in fact, reached the platform but, as the trial judge noted, had at one point passed through the barriers leading to the platform. There was no issue that both brothers were well affected by alcohol, had refused to comply with a direction to leave and had used offensive language on railway land. It was also no issue that the brothers did not have tickets for travel and were insisting, nevertheless, on travelling by train if they could get to the platform. As to the latter matter, the submissions by Mr Neil are possibly correct in that the facts may have failed to establish breach of a regulation for attempting to travel by train: R v Mai & Anor (1992) 26 NSWLR 371 at 381-382. On the other hand, the brothers' passage through the barriers into the restricted area above the platform may have taken the situation beyond mere "intent" to travel without tickets. Be that as it may, it was plainly open to the trial judge to determine that the way in which the matters were reported to the police did not demonstrate malice. The prosecution for attempting to travel by train without a ticket may not have succeeded, but that, of itself, could not establish malice. 208In this context, malice has been said to be "not easy to define": Schindler Lifts Australian Pty Ltd v Debelak (1989) 89 ALR 275 at 291 per Pincus J. In a passage from Fleming's Law of Torts, 9 th ed (1998) Thompson Reuters at 780, the author, in tracing the history of the word in this context, said: "Later, however, malice came to be treated as a necessary element even when no question of privilege was involved; and today the dominant view seems to be that malice, in the sense of some indirect, dishonest or improper motive, or at any rate an intent to injure without just cause or excuse must be proved by the plaintiff." 209On this basis, it could not be said on the facts in the present case that the transit officers, in reporting the breaches to the police, acted with malice, and the judge rightly so found. 210In addition, his Honour held that the plaintiffs had failed to prove special damage. Indeed, from my reading of the pleadings, it does not seem that any special damage was claimed. There was a faint attempt, during the hearing of the appeal, to argue that Christian may have incurred a loss of wages in attending court on two to three occasions before the penalty notices were ultimately dismissed. The claim on behalf of Sebastian was abandoned altogether. 211While there is a fleeting reference in the transcript to Christian's attendance at court, and the fact that he may have lost some wages as a consequence, there was no direct evidence, or specific evidence, to this effect. Indeed, the defendants had tendered exhibit X at trial. That document demonstrated that, in the relevant period, Christian had not lost any wages as a result of any aspect of his claim against the defendants. The trial judge expressly found that the plaintiffs had failed to establish special damage, and he was entitled to do so. 212In my view, Christian has failed to establish any error on this aspect of the appeal.

Damages [Sebastian - Grounds 12 to 18; Christian - Grounds 11, 13 to 19] 213The damage grounds pressed at the hearing of the appeal may be succinctly stated. They were, in general terms, common to the appeals of both Sebastian and Christian. First, the award of general damages was in each case said to be inadequate. Secondly, the aggravated damages awarded were said to be inadequate. Moreover, this second aspect of compensatory damages was claimed to be based on wrong principles, and the quantum improperly reduced by an irrelevant factor, namely the "belligerent and offensive conduct" of the brothers. It was also argued, consistently with the earlier grounds, that general and aggravated damages should have been awarded against a number of the transit officers, and not merely against Schofield. Thirdly, it was said that the trial judge erred in respect of his failure to award exemplary damages against Schofield and, by dint of vicarious liability, against RailCorp. These purported errors were based on a number of individual arguments, which I shall assess in the course of these reasons. Given the nature of the grounds, it will be appropriate to deal with exemplary damages first, and then consider the issues in relation to compensatory damages.

Exemplary damages 214In Australian law, an award of exemplary damages is intended to punish the defendant and also to deter the defendant, and others, from behaving in the same or similar reprehensible manner. The objects of such an award encompass condemnation and admonition of the defendant and his behaviour. The purpose of damages of this kind is to mark out the court's strong disapproval of the conduct and to visit retribution on the person thus sanctioned. It also embraces the notion that such an award will assuage the victim's potential desire or need for revenge and thus avoid any temptation to engage in self-help likely to endanger the peace. Lamb v Cotogno [1987] HCA 47; 164 CLR 1 at 8-13; Uren v John Fairfax and Sons Pty Limited [1966] HCA 40; 117 CLR 118 at 138; Luntz, Assessment of Damages for Personal Injury and Death: General Principles (2006) LexisNexus Butterworths [7.2] at 98-99. 215The type of conduct that will attract an award of exemplary damages has been described as "conduct showing a conscious and contumelious disregard for the plaintiff's rights": XL Petroleum NSW Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; 155 CLR 448 at 472 per Brennan J. It has plainly been recognised in cases where trespass to the person has been alleged against police officers who have been shown to have acted in a high-handed and contumelious fashion: Adams v Kennedy [2000] NSWCA 152; 49 NSWLR 78; Knight v State of New South Wales [2004] NSWSC 791 per Hoeben J. 216In Lamb v Cotogno , at 8, the High Court cited with approval the following passage from Mayne and McGregor on Damages, 12 th ed (1961) Sweet & Maxwell: "[Exemplary damages] can apply only where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff's rights." 217The trial judge, in the instant case, made it clear that he did not regard either case as appropriate for an award of exemplary damages. His Honour correctly identified that, to qualify for such an award, the defendant's conduct must be of such a character that it merits punishment. In the catalogue of the types of conduct that might merit such an award, his Honour included a number of the epithets that have been referred to in both the authorities I have mentioned, and in the textbooks. For example, his Honour considered whether the behaviour of Schofield had been "knowingly wanton, fraudulent, malicious, violent, cruel, high-handed or an abuse of power". 218I take the trial judge's reference to these epithets, and the general tenor of his observations, fairly read, as indicating that he did not think the behaviour of Schofield fell within the type of conduct that called for an award of exemplary damages to represent punishment, admonition, retribution and the like. Indeed, that appears to be the primary basis for his Honour's decision not to award exemplary damages. 219Another matter his Honour regarded as relevant to the issue of exemplary damages was "the abusive and belligerent behaviour" of the plaintiffs. In addition, he took into consideration the circumstances of the criminal proceedings brought against Schofield and, in addition, the fact that Schofield had been the subject of disciplinary proceedings and suspended from his employment. 220As a preliminary to all of these matters, his Honour indicated that he kept in mind that "the power to award [exemplary] damages should be exercised with restraint". 221I shall now list the range of errors asserted by the appellants in relation to the issue of exemplary damages. First, Mr Neil argued that it was an error of law for the trial judge to indicate that he would keep in mind the proposition that the power to award exemplary damages should be exercised with restraint. Secondly, senior counsel argued that the trial judge had failed to examine the penalty imposed on Schofield in the criminal proceedings, and failed to evaluate whether it was so substantial as to warrant exemplary damages being withheld. In that regard, Mr Neil relied upon Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1 at 13-17. 222In relation to the trial judge's reference to the criminal proceedings against Schofield, Mr Neil pointed out that, although the transit officer had been found guilty of the assaults in the Local Court criminal proceedings, the prosecution of Sebastian was later dismissed under s 10 of the Crimes (Sentencing Procedure) Act . In Christian's case, the conviction entered against Schofield in the Local Court was subsequently quashed in the District Court. Senior counsel also argued that the reference by the trial judge to the disciplinary proceedings brought against Schofield constituted a further error of law. 223Mr Neil submitted that none of these matters, neither the criminal proceedings nor the disciplinary proceedings, justified the withholding of exemplary damages from the plaintiffs. 224Finally, Mr Neil argued that RailCorp ought to have had exemplary damages awarded against it, to bring home to it that its transit officers must be trained and disciplined to ensure that abuses of the kind that had occurred in the present case would not be repeated. In this regard, senior counsel relied upon New South Wales v Ibbett [2006] HCA 57; 229 CLR 638. 225This last argument raises a point of some difficulty. The issue is whether a non-State agency is to be held vicariously liable for the contumelious action of its employees, especially in circumstances where the claim makes no allegation alleging a failure in training and discipline. State of New South Wales v Ibbett had dealt with the liability of the State for actions of police officers, having regard to the special provisions in s 6 of the Law Reform (Vicarious Liability) Act 1983 (NSW). It did not directly deal with the points raised by Mr Neil's argument. 226I shall deal with each of the arguments separately. The first, and to my mind the most important, matter is whether the conduct of Schofield merited an award of exemplary damages at all. The trial judge thought it did not, and I consider that his decision in this regard was entirely correct. An analysis of the CCTV footage, and the statements from the various transit officers, show that Schofield had been present during the attempts by Sanderson to make the brothers listen to reason, and at the same time, to curb their behaviour and language. Schofield had been involved with the brothers during two earlier incidents that evening, but they had been resolved relatively amicably. Schofield observed and listened to the brothers arguing with the transit officers for about three minutes, standing with his arms folded, quite near to both brothers and Sanderson. He then gave a direction to both men to leave the station. The CCTV footage shows him pointing away from the station. Sebastian said (according to one source), "I'll kill you, you fucking cunts. I'm not leaving the station". According to another transit officer, Schofield was told by Sebastian, "I will fucking smash you". Both brothers had been described as using offensive language and speaking aggressively during the period of being spoken to by Sanderson on the concourse area. It was immediately after the aggressive language used by Sebastian that Schofield lunged at him. Schofield grabbed Sebastian by the throat and, in the melee, Sebastian's shirt was torn. He suffered no other injuries. 227Security Officer Riley said that, at that point, "the youngest one" (clearly Christian) stepped in and started to "swear and yell" at the transit officers. He then described Christian being forced to the ground. It was in that rapidly evolving situation that Schofield committed the assaults on Christian. Christian received a cut lip in the assault, but no other injuries. The assault by Schofield on both brothers was over very quickly, and they were then carried or dragged away from the concourse area. 228There was, of course, no justification for Schofield's assault on the brothers, and the judge so found. However, it is quite clear that Schofield simply lost his temper. The expression, aptly used by Mr Neil during his submissions, was that Schofield "snapped". Of course, in some cases, provocation and loss of temper may result in behaviour that is so contumelious that it will warrant an award of exemplary damages. In this case, however, Schofield's sudden loss of control plainly occurred in the context of the aggressive and offensive remarks by Sebastian and, to a lesser extent, the language and response of Christian after his elder brother had been assaulted. There was no warning given to the other officers that Schofield would "snap" as he did and his behaviour was curtailed, or at least restrained to some degree by them. In my opinion, it was well open to the trial judge to find on the present facts that Schofield's behaviour, although unjustified and warranting an award of compensatory damages, did not justify an award of exemplary damages. As Windeyer J counselled in Uren v John Fairfax and Sons Pty Limited at 153: "... exemplary damages must always be based upon something more substantial than a jury's mere disapproval of the conduct of a defendant." 229Windeyer J, at 153-154, further cautioned that "matters that may aggravate compensatory damages do not of themselves justify the addition or inclusion or a further purely punitive element". His Honour warned against the use of "epithets without evidence". 230During the appeal hearing, Mr Neil introduced a further matter in relation to this argument. He referred to portions of the statement of CSA Truskett. It was she who had witnessed the earlier incident between Security Officer Riley and the brothers. It was she who warned the transit officers in the staff room that they should be careful, and that one of the brothers "may be looking for a blue". However, her statement had also identified one of the transit officers (presumably Schofield) saying to the others, "Come on, boys, let's go and have some fun". Mr Neil suggested that this remark was highly relevant on the damages issues and generally relevant as to the attitude of the other officers. I do not agree. It is clear that this remark by Schofield occurred at an early stage of the evening. It occurred before Schofield, Sinha and Jimenez spoke to the brothers about drinking on the concourse, and subsequently, to Sebastian about smoking on the concourse. Both of those issues were resolved relatively amicably and without any inappropriate behaviour by Schofield. The remark in the staff room had no temporal or other connection with the assault by Schofield later in the evening. It was not endorsed or commented upon by any of the other officers. 231Accordingly, I would conclude that it was entirely open to the trial judge to reach the view that exemplary damages were not appropriate in this matter, having regard to the conduct of Schofield. His Honour was also entitled to take into account the behaviour of both Sebastian and Christian as a relevant factor on the issue as to whether such damages should be awarded: Lamb v Cotogno at 13 ; Fontin v Katapodis [1962] HCA 63; (1962) 108 CLR 177. 232Further, I do not think that his Honour was in error in reminding himself that restraint was necessary before embarking on a factual evaluation as to whether exemplary damages were necessary in the present matter. Australian courts have, in the main, accepted that the power to award exemplary damages should be exercised rarely and with restraint: XL Petroleum NSW Pty Ltd v Caltex Oil (Aust) Pty Ltd at 463 per Gibbs CJ; TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333 at 366 per Spigelman CJ. 233I turn next to the arguments based on the criminal and disciplinary proceedings brought against Schofield. Mr Neil argued that the judge had erred in law by taking these matters into account on the issue as to whether exemplary damages should be awarded. 234The first argument related to the criminal proceedings. The factual basis on which the judge considered this matter is set out in detail in the judgment. It bears repetition. Schofield was prosecuted in the Local Court for the assaults on the two brothers. It appears he was convicted in relation to each assault, and then appealed to the District Court. In relation to the assault on Christian, the conviction was set aside, and Schofield was found not guilty. In relation to Sebastian's assault, the finding of guilt was confirmed, but the proceedings were dismissed under s 10 of the Crimes (Sentencing Procedure) Act. 235In Gray v Motor Accident Commission , the High Court gave consideration to the factors that may be invoked when a court considers whether exemplary damages should be awarded. In particular, the Court dealt with the relevance or otherwise of the situation where criminal punishment had been imposed on a wrongdoer who was later sued by an injured person. In that case, the driver of a motor car who had seriously injured the plaintiff was subsequently convicted of intentionally causing grievous bodily harm, and sentenced to seven years imprisonment. Although not relevant to the present discussion, there were two points of special interest to note regarding the case. The first was that the third-party insurer was the defendant, being substituted under South Australian legislation as the defendant. Secondly, although the claim was based on negligence, the conduct of the proceedings at trial demonstrated that the case had properly been regarded as one of conscious wrongdoing by a tortfeasor. 236The trial judge had made no award of exemplary damages. The factor which appeared to influence him significantly was that the tortfeasor had been "substantially punished by imprisonment". 237Prior to considering this issue, the plurality judgment stated, at 15:- "In considering whether to award exemplary damages, the first, if not the principal focus of the injury 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 damages). 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 extracted by the State or paid by it." 238On the issue of the significance of criminal punishment, the plurality judgment emphatically endorsed the proposition that, where the criminal law has been brought to bear upon the wrongdoer and substantial punishment inflicted upon him, the consequence is that exemplary damages may not be awarded in the civil proceedings. In their Honours' view, the infliction of substantial punishment (for what was substantially the same conduct as the conduct the subject of the civil proceedings) is a complete bar to the award. It is not a matter of discretion depending on the facts and circumstances in the case. Two reasons were given for this. First, the purpose for the awarding of exemplary damages will have been wholly met if substantial punishment is extracted by the criminal law; second, considerations of double punishment would otherwise arise. 239In the case then under consideration, the High Court determined that imprisonment for seven years constituted substantial punishment and, as this had been imposed on the wrongdoer for the conduct the subject of the civil action, exemplary damages could not be awarded. The plurality judgment left open the situation where a wrongdoer had been found guilty, but where a financial or non-custodial penalty had been prescribed. It left open also the situation where a wrongdoer has been brought before the criminal courts and acquitted. Equally, it left open the situation where there might properly arise a real issue as to whether the punishment inflicted upon a wrongdoer was adequate or otherwise. The plurality judgment, in each of those situations, did not conclude one way or the other whether the imposition of the criminal law would be a bar to exemplary damages. 240Kirby J (in a separate decision) thought that the issue was one of discretion. At 33-34, Kirby J said: "I accept that describing the process involved as "discretionary" may encourage a certain looseness of thinking. However, to some extent that is inherent in the interaction of criminal punishment and civil damages which are described as being in part punitive. It is a discretion to be exercised in accordance with principle. If one of the reasons for awarding exemplary damages is the punishment of the wrongdoer in an emphatic and public way, it is obviously relevant to take into account the fact that this may already have been done or is likely to follow. Once exemplary damages are seen as supplementary to compensatory damages (an addition that may or may not be appropriate in the particular case) the fact that a plaintiff may lose them (or have them reduced by reference to the actions of others in the criminal courts) does no offence to reason. The primary judge's description of exemplary damages as discretionary was therefore correct." 241In my opinion, contrary to Mr Neil's submission, there is nothing in the plurality judgment that suggests that, where substantial punishment (for example, imprisonment) has not been imposed, the trial court is precluded from taking into account, as a relevant factor in determining whether exemplary damages should be awarded and, if so, the extent of those damages, the fact that a wrongdoer has been subjected to the rigours of the criminal justice system for the same conduct as is involved in the civil case. Kirby J's separate decision plainly envisages that such an approach is permissible. 242In other words, the High Court's decision in Gray is authority for the proposition that, where substantial punishment has been imposed by the criminal justice system for the same conduct as is involved in the civil proceedings, this will operate as a complete bar to the grant of exemplary damages. Where "substantial punishment" has not been imposed, or where it is arguable that it has not, there is no reason why the trial judge cannot have some regard to the nature of those proceedings and their outcome as a factor, amongst others, in determining whether or not to award exemplary damages. 243In the present appeals, I can discern no error in the trial judge's approach. As I have said earlier, his Honour's primary reasoning appears to proceed on the basis that the conduct of Schofield itself was not such that it warranted an award of exemplary damages. That, I think, is clear from the structure of his Honour's judgment. 244Against the background of that finding, his Honour then took into account three further matters. These he regarded as "also of relevance". They were, first, the abusive and belligerent behaviour of the plaintiffs themselves, and second, the nature of the criminal proceedings brought against Schofield. A third matter was the disciplinary proceedings which I shall mention shortly. 245I have already referred to the abusive and belligerent behavior of the plaintiffs. It could be taken into account for its part in Schofield's loss of temper. That is not to deny exemplary damages because of the plaintiff's conduct. Rather, it is to address the nature of the defendant's conduct. It goes to the nature of the defendant's conduct and in my view his Honour took it into account in that way. 246So far as the criminal proceedings are concerned, there is no doubt that, in the case of Sebastian, there was a finding of guilt, both in the Local Court and the District Court on appeal. The order made, and its precise terms, was not, however, in evidence before the trial judge. It was simply agreed between the parties that the conviction for the assault had been quashed, pursuant to the provisions of s 10 of the Crimes (Sentencing Procedure) Act . His Honour said that, notwithstanding that the conviction was quashed in these circumstances, this matter "would remain on Schofield's criminal record, and in that sense, might be regarded as a punishment as a result of the events of that evening". 247It might be noted, although it was not discussed by his Honour, that s 10 of the Crimes (Sentencing Procedure Act) is in these terms: "10(1) Without proceeding to conviction, the court that finds a person guilty of an offence may make any one of the following orders: (a) an order direction that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term no exceeding two years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention programme and to comply with any intervention plan arising out of the programme." 248As I have noted, the precise basis on which the s 10 order was made was not in evidence. Presumably, had it been the fact that a s 10(1)(b) bond was imposed, for example, that may have been a relevant matter for consideration. 249The legislation enables a court, in determining whether to make an order under s 10, to take into account the offender's character, antecedents, age and health. It may take into account the trivial nature of the offence, and any extenuating circumstances in which the offence was committed. Even though no conviction is recorded, the order has the same effect as a conviction for certain purposes: for example, for the purposes of enabling a court to order compensation in favour of the victim under the Victims Compensation Act 1996 (NSW). 250In my opinion, it was appropriate for his Honour to take into account the situation, so far as the criminal proceedings in connection with Sebastian's assault, were concerned. This was because it was relevant to see whether the processes of the criminal law had been brought to bear on Schofield, and to determine whether or not, in any sense, he had been punished as a result of his assaults. The trial judge was able to conclude that he had been. It was not so much a question of the adequacy of the punishment, but the fact that he had been successfully prosecuted under the criminal law, and found guilty. His Honour did not treat this fact as determinative of the outcome on the issue of exemplary damages, but merely took it into account as one relevant factor. He did not regard it as a complete bar to the award of damages. In my opinion, it was not an error of law to rely on the matter in the way he did. 251The position in relation to Christian was somewhat different. As I have said, Schofield had been convicted of the assault on Christian in the Local Court. However, on appeal in the District Court, he was found not guilty. His Honour noted that fact, but otherwise made no comment about it. There was no evidence before the trial judge as to the reasons for the acquittal. Nor is there any material before the court on that issue. It may simply be, for whatever reason, that the prosecution was simply unable to prove the charge to the requisite standard of criminal proof. I do not, however, consider that his Honour fell into any error by taking into account, as relevant on the issue, the fact of the criminal proceedings relating to the assault on Christian, and their outcome. Once again, his Honour clearly did not see this as a matter that, in itself, prohibited the imposition of exemplary damages. It was no more than a factor to be taken into account, with others, in the assessment of that issue. Indeed, in relation to both brothers, the criminal proceedings involving Schofield were not identified as being of any particular significance. As factors going to the discretion as to whether exemplary damages, they were of a minor nature and were seen as such in assessing the overall situation. 252The fact that Schofield was the subject of disciplinary proceedings and suspended from his employment was also a matter that, in my opinion, his Honour correctly regarded as relevant to the issue of whether exemplary damages should be awarded. As I have explained, those circumstances were by no means determinative of the issue, and his Honour did not treat them in that way. They too were minor matters in the ultimate evaluation. An adverse order made against a person in disciplinary proceedings, even a temporary suspension order, has the capacity to affect his or her employment, both with a present employer and future employers. Although not criminal punishment, it can rightly be regarded as some type of punishment, possibly very real punishment, for the purposes of assessing whether exemplary damages should be imposed and, if so, the relevant quantum of those damages. (On the issue of disciplinary orders being regarded as punishment: see Rich v ASIC [2003] NSWCA 342; 183 FLR 361 at 411; Police Service Board v Morris [1985] HCA 9; 156 CLR 397 at 403 per Gibbs CJ). In the present matter, as I have said, it could only play a minor role and it is clear that it did. 253The final matter relied upon by Mr Neil in relation to this aspect of the damages argument was the proposition that exemplary damages should have been awarded against RailCorp, on the basis that it had failed to train and discipline its transit officers, including Schofield, to prevent the type of abuse represented by his assaults. In view of the findings the trial judge made relating to the inapplicability of exemplary damages against Schofield and the correctness of those findings, this matter does not arise for consideration. That is especially so when regard is had to the fact that no claim of that kind appears in the pleadings.

Compensatory damages 254The trial judge awarded $5,000 general damages in favour of Sebastian, and $7,000 in favour of Christian. Each brother received a further award of $5,000 in aggravated damages. Mr Neil complained about the quantum of each of these awards. As to the general complaint that the level of damages in favour of each of the brothers was too low, no particular matter was identified that would justify this court's intervention in the assessment of damages. The trial judge found that, so far as Sebastian is concerned, apart from his torn shirt, he was not satisfied that he had sustained any physical injury as a consequence of Schofield's assault. The assault was restricted to the acts of Schofield lunging at Sebastian, coming into contact with his neck or throat, ripping his shirt and forcing him to the ground. There was no claim for property damage. His Honour recognised that the assault on Sebastian was "a frightening experience". He acknowledged also that it was "unnecessary and unjustified". In those circumstances, the award of $5,000 for general damages was a reasonable one. 255The trial judge, by comparison, recognised that Christian had been subjected to a more serious assault than that inflicted upon his brother. He had been struck two or three times in the face and mouth regions, causing his lip to bleed. His head was slammed into the ground. However, his Honour found that, apart from the injury to his lip, there were no injuries sustained by Christian as a consequence of Schofield's assault. The award of $7,000 in favour of Christian in general damages should not be disturbed. Both awards, although low, were within a reasonable range in the circumstances found by the trial judge. 256So far as the judge said that damages may be awarded where the defendant has acted in committing a tort with contumelious disregard for the plaintiff's rights in an insulting or high-handed way or with malice, there was some confusion with the basis for an award of exemplary damages. However, the confusion did not operate against the appellants, since his Honour considered that Schofield's actions were high-handed; and he then correctly addressed the relevant basis for aggravated damages, namely that those high-handed actions would have increased the appellant's suffering, warranting an award of aggravated damages. In dealing with Sebastian's claim in this way, his Honour correctly recognised the distinction between aggravated damages and exemplary damages. The passage, read in the context of the full decision, shows that his Honour was well aware of the conceptual distinction between the compensatory nature of aggravated damages, and the punitive and deterrent nature of exemplary damages. It also needs to be recalled that "in many cases, the same set of circumstances might well justify either an award of exemplary or aggravated damages" ( Uren v John Fairfax & Sons Pty Ltd per Taylor J at 130). In short, it is quite clear that the trial judge recognised that aggravated damages are awarded to compensate the plaintiff for increased mental suffering due to the manner in which the defendant has behaved in committing the wrong. Aggravated damages, it has been said, are intended to compensate the injured plaintiff because the more reprehensible the wrongdoer's conduct, the greater the indignity the plaintiff suffers and the greater the outrage to his or her feelings ( Uren v John Fairfax& Sons Pty Ltd per Windeyer J at 151). 257Mr Neil argued that it was wrong for the trial judge to take into consideration the "provocative behaviour of the plaintiffs and their belligerence" in assessing aggravated damages. From the material I have earlier referred to, there was ample evidence to justify his Honour's findings that both brothers had repeatedly used offensive language and acted in a manner that might properly be described as belligerent. It is true that they had not demonstrated any physical violence towards the transit officers prior to the assaults, but their overall attitude and conduct was properly described as belligerent. I do not consider that the trial judge fell into error by taking this matter into account on the issue of the quantum of aggravated damages. Fontin v Katapodis is authority for the proposition that provocation does not have the effect of reducing "actual" compensatory damages, that is, damages for medical expenses, loss of earning capacity and non-pecuniary loss that is not aggravated by the defendant's conduct. On the other hand, although aggravated damages are correctly described as compensatory, such damages may be reduced if the plaintiff's conduct has been provocative, since all the circumstances must be taken into account in determining the hurt to the plaintiff's feelings, and such circumstances include the fact that the plaintiff's own behaviour may have brought the attack on himself: Fontin v Katapodis at 183 per McTiernan J; Horkin v Port Melbourne Football Club Social Club [1983] 1 VR 153 at 162 per Brooking J; O'Connor v Hewitson & Anor [1979] Crim LR 46; Hill v Cooke [1958] SR (NSW) 49. 258The findings made by the trial judge did not suggest that Schofield was in any way entitled to assault either of the brothers as he did. It was unjustified and unnecessary, as the trial judge found. Nevertheless, the behaviour of both Sebastian and Christian was quite unwarranted, and justified the giving of directions for their removal from the railway station. Both brothers made it completely clear that they were not going to leave, and it was in those circumstances that they were seized and physically escorted from the premises. It is true that Schofield's assault precipitated the removal process, but it did not alter the fact that the brothers were going to have to be physically restrained and removed in any event. His Honour was entitled to bring their behaviour to bear in assessing the award for aggravated damages. 259For the reasons I have given, none of the arguments which have sought to attack each award of damages can succeed.

Interest [Sebastian - Ground 30; Christian Ground 31] 260Sebastian and Christian have each argued that the trial judge erred in law in not awarding any interest on damages. It was submitted that the trial judge had not advanced any reasons as to why each appellant was not entitled to interest on those damages. It seems to be common ground between the parties, however, that the failure to award interest was simply an oversight. It would have been possible for the appellants to have approached the judge to ask, pursuant to the slip rule, that the question of interest be addressed: L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] [1982] HCA 59; (1982) 151 CLR 590. It appears that this was not done. The respondents do not, however, take any point on this issue, and it is common ground that this court should remedy the situation. Christian's calculation of interest is $2,201.28 at 4%, or $1,100.64 at the lower rate. The comparable figures in the case of Sebastian are $1,834.40 or $917.20. 261In the circumstances of the nature of the assault on each brother, and given that there were no later consequences in each case, it will be appropriate to award the higher amount of interest claimed by each appellant. This will be addressed at the conclusion of these reasons.

Costs [Sebastian - Grounds 31 to 38; Christian Grounds 32 to 38] 262There were two separate bases for the attack on the trial judge's costs orders. First, it was argued that his Honour erred in declining to make either a Bullock or Sanderson order against RailCorp in respect of the costs ordered against the brothers in favour of the remaining transit officers who had unsuccessfully been sued. Secondly, it was argued that the trial judge had fallen into error in relation to the indemnity costs orders he made against each appellant.

Bullock order 263So far as the first matter is concerned, I am not satisfied that any basis has been demonstrated upon which it would have been proper for the trial judge to order RailCorp to pay, either directly or indirectly, the costs ordered against the appellants in relation to the proceedings against the successful transit officers. In Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215, Gibbs CJ said at 229: "The ground on which a Bullock order may be made is in my opinion, more accurately stated in a passage in Sanderson v Blyth Theatre Co. [1903] 2 KB 533 at 539, which was cited with approval in Bullock v London General Omnibus Co. [1907] 1 KB 264 at 272 and Hong v A & R Brown [1948] 1 KB 515 at 522, viz., that the costs which the plaintiff had been ordered to pay to the defendant who succeeded, and which the plaintiff recovers from the defendant who has failed "are ordered to be paid by the unsuccessful defendant, on the ground that... those costs have been reasonably and properly incurred by the plaintiff as between him and the [unsuccessful] defendant. In Johnsons Tyne Foundry Pty Ltd v Maffra Corporation, supra, Williams J, at pp 572-3, stated the principle in a similar way, and Starke and Dixon JJ, in giving their reasons for making a Bullock order, both relied on the circumstances that the attitude adopted by the successful defendant had induced the plaintiff to join the other defendant: see at pp 559-60, 566. In my respectful opinion the true position was clearly stated by Blackburn CJ in Steppke v National Capital Development Commission (19 7 8) 21 ACTR 23 at 30-1, when he said that "there is a condition for the making of a Bullock order, in addition to the question whether the suing of the successful defendant was reasonable, namely that the conduct of the unsuccessful defendant has been such as to make it fair to impose some liability on it for the costs of the successful defendant"." 264See also Sved v Council of the Municipality of Woolhara [1998] NSW Conv R 55-842 (at 55-605), Giles J (as he then was), setting out principles that were accepted by this court in Roads and Traffic Authority NSW v Palmer [No 2] [2005] NSWCA 140 at [30] (Spigelman CJ and Handley JA agreeing); Maricic v Dalma Formwork (Aust) Pty Ltd [No 2] [2006] NSWCA 237; (2006) 67 NSWLR 712 at 717-718 per Basten JA (with whom Beazley and Ipp JJA agreed). 265Mr Neil argued, first, that the late viewing of the CCTV footage (brought about by the need for specialised software) justified a Bullock order. Secondly, he pointed to the fact that the transit officers and RailCorp were represented by the same lawyers. Thirdly, he argued the costs orders in respect of the successful transit officers were unduly onerous to his clients. Finally, he suggested that the overall situation meant that it was reasonable and proper for the brothers to have joined all the transit officers involved, including those who were later successful against his clients in the proceedings. 266None of these arguments, in my opinion, demonstrate that there was anything in the conduct of RailCorp that would make it just and fair to order them to pay the costs of the brothers' unsuccessful claims against the transit officers. In relation to the CCTV footage, it is obvious enough that, had proper arrangements been made at an earlier point in time, it could have been viewed well before the trial. More importantly, however, after it had been viewed, the brothers maintained their actions against all the transit officers and, indeed, by tendering the CCTV footage and the preliminary Report, indicated their reliance upon that material against all the defendants, not merely Schofield. None of the other arguments advanced by senior counsel pointed to any conduct on the part of RailCorp that could possibly warrant the making of a Bullock order. 267In my opinion, there is no aspect of the exercise of the trial judge's discretion that would justify the interference by this court on this issue.

Indemnity costs 268In relation to the indemnity costs arguments, it is necessary to set out the facts found by the trial judge. These were contained in a separate judgment given by his Honour on 17 November 2008. 269On 16 October 2007, a formal offer of compromise under Rule 20.26 of the Uniform Civil Procedure Rules 2005 was sent by fax to the plaintiff's solicitors in respect of Sebastian's claim. This was in the sum of $15,000 plus costs. The offer was expressed to be open until 22 October 2007. On the same day, a formal offer of compromise under the Rules was made in respect of Christian's claim, in the sum of $7,500 plus costs. It too was expressed to remain open until 22 October 2007. It is necessary to note that each plaintiff's case was set down for hearing to commence in the District Court on 22 October 2007. It is also necessary to note that, on 15 October 2007, the day before the formal offers of compromise were served, the plaintiffs' solicitors had rejected an offer of $40,000 inclusive of costs for both plaintiffs and had responded that the cases could not be resolved for anything less than $118,000 inclusive of costs, allocated on the basis of $52,000 inclusive of costs to Sebastian, and $60,000 inclusive of costs for Christian. 270Although the case was scheduled to commence on 22 October 2007, it was not reached on that day. It was stood over for mention so that a new hearing date could be selected. It was subsequently listed to commence on Monday 4 February 2008. On 4 February 2008, the first day of the trial, a verbal offer of $100,000 plus costs for both matters was made by the plaintiffs' representatives to the defendant's representatives. On the morning of 6 February 2008 (Day 3 of the trial) formal offers of compromise under Rule 20.26 were hand delivered by the defendant's solicitors to the plaintiffs' solicitors in court as follows: "(a) Sebastian - $20,000 plus costs. The offer was expressed to be open until 8 February 2008 at 10:00am. (b) Christian - $12,500 plus costs. The offer was expressed to be open until 8 February 2008 at 10:00am." 271His Honour noted in his final decision that the offer of compromise made to Sebastian on 16 October 2007 was $5,000 more than his award of damages. In the case of Christian, the offer of compromise on 6 February 2008 was $500 more than his award of damages. 272Although the hearing of the proceedings commenced on 4 February 2008, there were procedural difficulties that led to the plaintiffs' evidence not commencing until the morning of 6 February 2008. The first procedural problem arose out of the fact that the legal representatives for the brothers maintained that they had not been able to examine the CCTV footage of the incident. It appears that the solicitors had also not been able to examine the preliminary inquiry Report into the incident conducted by RailCorp in April 2004. The trial judge found, however, that the lawyers for RailCorp had produced to the court the CCTV footage, and the Report of the inquiry, together with notebook entries of the transit officers, back on 12 February 2007. His Honour found that the material had thus been available to the plaintiffs from 5 March 2007, the day upon which orders were made granting access to the material to the plaintiffs. 273The procedural problem of allowing the plaintiffs to view the CCTV footage (particular software being required) was overcome by an arrangement between the parties, reached on 4 February 2008. The second procedural problem arose from the fact that the plaintiffs sought to make amendments to the two Statements of Claim in certain respects. That situation led to the proceedings being adjourned until the following day, 5 February 2008. On the second day, the matter was further adjourned due to further complications arising from the amendments sought by the plaintiffs. However, the proceedings were ready to, and did, commence on the morning of 6 February 2008. As I have earlier indicated, it was on that occasion that the further offers of compromise were made. 274The trial judge, in his decision, set out in detail the submissions which had been made to him in respect of the indemnity costs applications. They were, first, that the plaintiffs did not know, and had no way of knowing, the full sequence of events, or the precise conduct of the participating parties, until access to the preliminary report of the incident conducted for RailCorp, and the CCTV footage, of the incident was secured; secondly, that the offers of compromise made on 6 February 2008 had been unreasonably restricted in relation to the time for acceptance; and thirdly, that the earlier offer made on 16 October 2007 to Sebastian contained an unreasonably restrictive time frame for acceptance. 275The trial judge gave detailed consideration to each of the arguments. It was his considered view that none of the matters raised was sufficient to deprive the defendants of the costs orders that were sought. He provided detailed reasons. In particular, the trial judge was not impressed by the argument that suggested that the plaintiffs were unreasonably prejudiced by the inability to examine the CCTV footage and the preliminary inquiry Report. His Honour noted, once again, that these had been produced in the early part of 2007, and access had shortly thereafter been granted. His Honour considered that there were ample court procedures available to the plaintiffs to ensure that their case was ready for trial and able to be appropriately assessed by their legal advisors. In relation to the claims that the offers were based upon overly restrictive time frames, his Honour was not satisfied, in the particular circumstances, that this was so. In these circumstances, his Honour made each of the orders sought by the defendants referred to earlier in these reasons. 276Mr Neil essentially presented the same arguments that had been made before the trial judge in relation to the indemnity costs issues. Mr Neil added to this argument, however, a further proposition. He submitted that the fact that the CCTV footage had been produced to the court, and access granted as at 5 th March 2007, was not relevant, nor was it determinative as his Honour had thought. This was because, senior counsel submitted, the CCTV footage was a plastic disc, not capable of being viewed without additional software which remained in the exclusive possession of RailCorp until 4 th February 2008. The timeframe arguments that had been relied on before the trial judge were, as I have said, essentially repeated before this court. 277Once again, I am not persuaded that any of the arguments sought to be relied on by senior counsel for the brothers requires a disturbance of the costs orders made by the trial judge. Mr Neil's additional argument concerning the CCTV footage has already been addressed. There was nothing to stop an early solution to the practical problem presented by the nature of the DVD viewing software. Secondly, the preliminary Report, containing statements from all the relevant officers and security guards, could have been inspected well before the hearing. 278So far as the time frame arguments are concerned, both the October and February dates for acceptance emerged following a series of informal offers that were considered and rejected between the parties. In relation to the October offer of compromise, it allowed a period of seven days. It could not be said, in my opinion, that it was unreasonable to select a seven-day period for acceptance, in all the circumstances. It is true, by contrast, that the February offers were made during the hearing and allowed only two days for acceptance. It needs to be recalled, however, that the first two days allocated to the hearing became, in real terms, lay-days. The hearing proper did not commence until the morning of the third day, when the offers were made. The arguments put before the trial judge, and before this court, suggested that there may have been practical problems in relation to obtaining instructions during the two-day period. The trial judge considered the detail of all those submissions and concluded that there was no substance in them. The appellants cannot succeed on these arguments, unless it is demonstrated that the primary judge's discretion miscarried, either by some manifest error or by consideration of an irrelevant matter: Wentworth v Rogers [No 3] (1986) 6 NSWLR 642 at 644; House v The King [1936] HCA 40; (1936) 55 CLR 499. In my opinion, no such error has been demonstrated and the trial judge's orders as to costs should stand. 279This Court should make orders whereby the appellants obtain interest on their damages, but the appeals have in substance failed and that should not bring any alleviation of costs orders against them. The respondents' written submissions stated that they wished to be heard in relation to the appropriate basis on which costs should be ordered and in relation to the costs associated with the preparation and service of multiple versions of appeal books and notices of appeal - a submission not repeated in oral address. I propose to make the ordinary order as to costs. The respondents may if they wish to be heard further make application to vary that order by Notice of Motion bearing in mind the strictures of UCPR 36.15 -36.18.

Orders 280I propose the following orders: (1) Set aside the judgments for $10,000 in favour of the first appellant and $12,000 in favour of the second appellant and in lieu thereof judgments for $12,201.28 and $13,834.40 respectively taking effect on 14 October 2008. (2) Appeals otherwise dismissed. (3) Appellants to pay respondents' costs of the appeals.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 May 2011