Austral v Northern Territory

What happened?

On the night of 21 August 2014 a detainee, Jake Roper, broke out of his cell in the Behaviour Management Unit of the Don Dale Youth Detention Centre in the Northern Territory and began damaging property. The four appellants were detained in cells in the same unit, remained locked in them, and were "mere bystanders" to what followed ([42]). Officers from the Immediate Action Team arrived with CS gas and a fogger. The Director of Correctional Services authorised its use, and it was sprayed ten times into the unit, so the appellants were exposed to it for between three and six and a half minutes without warning ([43]-[44]). Two of them were asthmatic and, had they been adults in a prison, protocols would have required their health to be checked first ([44]). After Roper was subdued they were handcuffed, hosed down and, only later, seen briefly by a nurse ([44]).

In 2020 a majority of the High Court held in Binsaris v Northern Territory (2020) 270 CLR 549 that the spraying was prohibited by the Weapons Control Act 2001 (NT), was not otherwise authorised, and was a battery of each appellant; the damages were remitted for assessment ([48]). On the remitter Blokland J awarded each appellant general damages of $20,000 to $30,000, aggravated damages in some cases, and $200,000 in exemplary damages, and refused interest on the general damages ([49]). The Court of Appeal of the Northern Territory set the exemplary awards aside and awarded interest instead ([50]). The appellants had special leave to appeal against that. The Northern Territory sought special leave to cross-appeal, to be used if the awards were reinstated, on the amount of the awards and on interest, and the joint reasons granted it ([52]-[53]; Gageler CJ and Steward J at [6], [8]).

What did the Court decide?

The Court divided five to two on the appeals.

The joint reasons of Gordon, Edelman, Gleeson, Jagot and Beech-Jones JJ upheld all three grounds of appeal and held that the Court of Appeal had erred; the Court of Appeal had relied on the first judge's finding that the gassing was reasonable and necessary, a finding that depended on a legal conclusion Binsaris had shown to be wrong ([104]-[108]). They also upheld the Northern Territory's cross-appeal on the first ground (manifest excess) only, so each appellant received $50,000 in exemplary damages instead of $200,000, and refused the second ground, so the Court of Appeal's interest award stood ([153]-[154]). With general and aggravated damages the totals were $90,000 (Austral), $70,000 (Binsaris), $100,000 (O'Shea) and $100,000 (Webster).

Gageler CJ and Steward J would have dismissed the appeals with costs ([41]). Their reasons, and what they said about the cross-appeals, are set out below with the propositions they bear on.

Why does this case matter?

The figures are the practical lesson. For a student asked "how much?", $50,000 for each of four plaintiffs ($200,000 in total) can serve as a calibration for a state defendant and unlawful use of force on children, and no more than that.

It is also a case about how an appellate court reviews such an award. Gageler CJ and Steward J record as common ground that the Court of Appeal's task was a "real review" on the correctness standard of whether exemplary damages should have been awarded and then, on the House v The King standard, whether the amount was appropriate ([10]).

The decision's reach is limited by what it decided. It arose on a battery by State officers, in a Northern Territory court, with no motive of profit or gain on the State's part ([114], [145]). The joint reasons expressly distinguish cases where large awards disgorge profits ([114]).

Exam and application relevance

Use the case for two steps, kept separate. First, whether an award is warranted: ask for the circumstances that call for punishment, not only what the wrongdoer knew. Second, how much: ask whether the figure is proportionate, whether other plaintiffs are before the court, and whether compensation and interest have already been fixed. Then say which Justices stated each step. Attribute the proposition to the joint reasons of the five Justices, and note the dissent on the appeals, so that you do not treat the dissent's reasoning as the law or the joint reasons as unanimous.

Common errors to avoid:

Do not say the case holds that the wrongdoer's state of mind is irrelevant. The joint reasons say it was relevant and was not the whole inquiry ([116]).

Do not say the High Court decided in Austral that the CS gas was an unlawful battery. That was Binsaris in 2020, and this case proceeds on it ([48], [56]).

Do not treat the $50,000 figure as a standard sum. It was fixed for these facts after the joint reasons applied the proportionality principle.

Do not cite the case for the rule that substantial criminal punishment bars exemplary damages. It mentions that rule in passing, citing Gray ([113]), and was not an occasion for deciding it.

This was a common law claim for battery in the Northern Territory. Where a statute restricts exemplary damages for the tort or the jurisdiction in your problem, that governs. The case does not say how the statutory restrictions apply.

Check your understanding

1. In Austral, whose reasons are the statement that conscious wrongdoing in contumelious disregard "may be sufficient it is not necessary" for an award, and what did Gageler CJ and Steward J say about the same formula? 2. Why was the Court of Appeal wrong to treat the officers' belief in the lawfulness of using CS gas as effectively determinative? 3. What is the court to do when several plaintiffs, all before it, are wronged by the same conduct and exemplary damages are warranted? 4. Why could Blokland J not properly refuse interest on the general damages because she had awarded exemplary damages? 5. Gageler CJ and Steward J dissented on the appeals. What did they say they would have done on the cross-appeals, and why did they not decide them?