35Detrimental action—recovery of damages

35 Detrimental action—recovery of damages

35 Detrimental action—recovery of damages

(1) A person who takes detrimental action against another person is liable in damages under this section for injury, damage or loss suffered as a result by the other person or a third person if—

(a) the person suspects, believes or is aware, when taking the detrimental action, that any person—

(i) has made, may have made, may make or proposes to make a public interest disclosure, or

(ii) is, has been or may be investigating, or proposes to investigate, serious wrongdoing, whether or not the investigation relates to or arises from the making of a voluntary public interest disclosure or constitutes dealing with a voluntary public interest disclosure, and

(b) the suspicion, belief or awareness is a contributing factor to the taking of the detrimental action.

(2) The damages may be recovered in a court of competent jurisdiction.

(3) The person’s liability is not affected by the fact the suspicion or belief was mistaken.

(4) In proceedings under this section, the defendant bears the onus of proving, in relation to detrimental action established by the plaintiff to have been taken by the defendant—

(a) the defendant did not have the suspicion, belief or awareness mentioned in subsection (1)(a), or

(b) if the defendant had the suspicion, belief or awareness—the suspicion, belief or awareness was not a contributing factor to the taking of the detrimental action.

(5) It is a defence in proceedings under this section that the detrimental action constituted appropriate corrective action in accordance with section 66.

(6) Damages recovered under this section may include damages in the nature of exemplary damages.

(7) A person is not entitled to recover damages in relation to the same detrimental action under both this section and any of the following provisions—

(a) the Independent Commission Against Corruption Act 1988, section 79J,

(b) the Ombudsman Act 1974, section 31S,