New South Wales v Ibbett [2006] HCA 57

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HEYDON AND CRENNAN JJ

STATE OF NEW SOUTH WALES APPELLANT

AND

DOROTHY ISABEL IBBETT RESPONDENT

New South Wales v Ibbett [2006] HCA 57

12 December 2006

S227/2006

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

J E Maconachie QC with E Chrysostomou for the appellant (instructed by Crown Solicitor for New South Wales)

J J J Garnsey QC with B E Kinsella for the respondent (instructed by James Fuggle)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

New South Wales v Ibbett

Tort – Trespass – Whether recognition of occupiers' rights of quiet enjoyment of land an appropriate consideration when awarding damages.

Damages – Aggravated damages – Exemplary damages – Where assault and trespass committed by police officers – Whether an award of general damages, aggravated and exemplary damages involves punishment twice for the same wrong.

Damages – Exemplary damages – Vicarious liability – Where the Law Reform (Vicarious Liability) Act 1983 (NSW) and the Police Legislation Amendment (Civil Liability) Act 2003 (NSW) assigned liability of police officers to the Crown – Whether award of exemplary or aggravated damages against the Crown appropriate.

Words and phrases – "double punishment", "aggravated damages", "exemplary damages", "vicarious liability".

Crown Proceedings Act 1988 (NSW), s 5.

Law Reform (Vicarious Liability) Act 1983 (NSW), ss 6, 8, 9B, 9G(2).

Police Legislation Amendment (Civil Liability) Act 2003 (NSW).

1. GLEESON CJ, GUMMOW, KIRBY, HEYDON AND CRENNAN JJ. This appeal by the State of New South Wales from the New South Wales Court of Appeal[1] raises issues the resolution of which depends upon the interplay between the common law and several items of New South Wales legislation. The issues involve the nature and extent both of the interests protected and vindicated by an award of damages against the State for trespass to land and of the vicarious liability of the State for exemplary damages awarded in an action for trespass to land and for assault. 2. It should be observed at the outset that much of the criticism respecting the remedy of exemplary damages has been stimulated by such awards in defamation actions. This appeal does not arise from an action of that kind and, in any case, under the recent legislation in this country, no plaintiff may be awarded exemplary or punitive damages for defamation[2].