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](/view/html/inforce/current/act-1988-035), section 79J, > > > > > (b) the [Ombudsman Act 1974](/view/html/inforce/current/act-1974-068), section 31S, > > > > > (c) the [Law Enforcement Conduct Commission Act 2016](/view/html/inforce/current/act-2016-061), section 97I. > > > (8) In awarding damages under this section, a court must take into account the extent to which the plaintiff has previously received compensation for the injury, damage or loss under section 62. > > > (9) Subject to subsections (7) and (8), a person’s entitlement to recover damages under this section— > > > > > (a) does not affect another right or remedy available to the person as a result of the relevant detrimental action, and > > > > > (b) does not constitute redress in relation to dismissal from employment for the purposes of the [Industrial Relations Act 1996](/view/html/inforce/current/act-1996-017), section 90 or another law. > > > (10) To avoid doubt, liability under this section is not liability in tort. > > Note. > > See also section 62.