The Global Damages Review: Australia

Overview

In Australia, monetary relief is available under common law, equity and statute. Determining whether a plaintiff is entitled to a damages award and the quantum of that award will require consideration of those three sources of law, the type of claim being made and the remedial purpose of the award.

i Common law

At common law, damages generally serve a compensatory purpose for the defendant's tort or breach of contract. The monetary remedy normally aims to place the plaintiff in the position he, she or it would have been in had the breach of duty not been committed.

ii Equity

Both equitable compensation and an account of profits are generally available for breaches of equitable obligations. Equitable compensation can be distinguished from damages by the characteristics unique to it, including its discretionary nature. An account of profits focuses on the gains made by the defendant via breach of the relevant equitable obligation rather than on the plaintiff's loss.

iii Statute

Statute will often also provide a monetary remedy. The extent to which common law or equitable principles apply to such a claim is a question of statutory construction. The questions of construction that the court will need to consider will be whether and to what extent the statutory provisions modify the operation of general law principles. As such, the measure of relief will be dependent on the particular statutory provision.

iv Non-compensatory damages

Punitive, gain-based and liquidated damages also may be available in exceptional circumstances where compensatory damages are deemed to be an inappropriate response to the breach.

v Punitive and exemplary damages

Punitive damages are occasionally awarded for certain wrongs recognised by common law to punish the wrongdoer and deter the commission of future wrongs, but the traditional view is that they are not available for breaches of equitable obligations.2

vi Restitutionary damages

The availability of a gain-based award in response to a common law wrong has occasionally been recognised, most often in cases where the defendant tortiously interfered with the plaintiff's right to goods3 or land.4 The term 'restitutionary damages' is sometimes used as a label to describe all such awards for common law wrongdoing, but it has also been suggested that it is necessary to distinguish between two measures of gain in this context: one based on the immediate transfer of value to the defendant that is entailed by the wrong and one based on the consequential profits that accrue to the defendant as a result of the wrong, which is sometimes labelled 'disgorgement'.5 While both measures of gain have also exceptionally been awarded for breach of contract in England, Australian courts have been reluctant to allow for gain-based recovery for contractual breach.6

vii Liquidated damages

At common law, liquidated damages are available where parties contract for a fixed amount of damages to be payable for a breach of contract in circumstances where the predetermined amount is a genuine pre-estimate of the loss likely to flow from the breach rather than a sum intended to punish or deter the breach. Equity may also deem a sum payable on the happening of an event other than breach ('the primary stipulation') as 'penal' and hence irrecoverable where it is 'out of all proportion' to the interests protected by the primary stipulation,7 or where it 'is properly characterised as having no purpose other than to punish'.8

Quantification of financial loss

i Introduction

The aim of awarding damages, at least in commercial cases, is generally to put the plaintiff in the financial position he, she or it would have been in had the relevant breach of duty not occurred.9 But in upholding this principle, various subsidiary matters arise, including how the plaintiff's counterfactual financial position is to be quantified and which consequences resulting from the breach are included in this assessment. A number of these subsidiary matters are now addressed.

ii Evidence

A plaintiff claiming damages is expected to adduce evidence that is available and typically adduced in that type of claim. Where a plaintiff does not adduce such evidence, he or she cannot complain of the non-award of damages or of a lesser quantum of damages than would have been obtained if the evidence had been adduced.10

iii Date of assessment

Typically, damages arising from a breach of contract are assessed at the date of the breach, but courts will depart from this general rule 'whenever it is necessary to do so in the interests of justice'.11 Damages arising from a tort are also typically assessed at the date on which the cause of action arose. However, in personal injury cases and death cases, damages are normally assessed at the date of judgment.12

Mitigation

It is important for a plaintiff to identify the applicable date of assessment for its cause of action as it will affect the date from which the court expects a plaintiff to act reasonably and attempt to minimise loss caused by the defendant's wrongdoing.13 If the plaintiff failed to act reasonably, he or she will not be awarded damages for losses that could reasonably have been avoided.14 Plaintiffs who take reasonable steps to mitigate loss are entitled to be compensated for the costs of taking such reasonable steps, even where the costs of taking such action overall increases the loss suffered.15

iv Financial projections

Future loss

Damages must compensate the plaintiff on a once-and-for-all basis. As such, the lump sum award must encompass not only the loss already suffered by the plaintiff but also any causally attributable losses that the plaintiff is likely to suffer in future. A plaintiff will be entitled to an award of damages to compensate future loss if he or she can establish, on the balance of probabilities, that the defendant's wrongdoing caused loss of a non-negligible opportunity that the plaintiff would have taken advantage of.

v Assumptions

In quantifying the plaintiff's loss, a court may be entitled to make certain assumptions about the value of what has been lost or about what would have happened had the breach not occurred. For example, the value of goods tortiously damaged or not delivered in breach of contract is generally measured by reference to the market price, at least where an available market exists, and it may be that, when a plaintiff claims damages following an acceptance of the defendant's contractual repudiation, it is assumed that the plaintiff would have been able to perform its own remaining obligations under the contract.16 It is a matter of debate as to whether these various assumptions are necessarily rebuttable or are sometimes irrebuttable.

vi Discount rates

Above, we described circumstances where a plaintiff can claim for loss of opportunity and future losses. If the plaintiff is awarded damages to compensate for loss that has yet to occur, the plaintiff is essentially receiving an advance payment of that loss. An adjustment must be made to account for the accelerated receipt in the form of discounting the damages to present value.17

In commercial cases, market rates of interest will be considered an appropriate discount rate,18 but in personal injury and death cases, state jurisdictions have their own statutory provisions prescribing a fixed discount rate. In the Northern Territory, New South Wales, Queensland, South Australia and Victoria the discount rate is 5 per cent.19 In Western Australia the discount rate is 6 per cent.20

vii Currency conversion

Damages awarded in foreign currency will generally be converted into Australian dollars using the spot foreign exchange rate at the date of judgment.21

viii Interest on damages

Courts in most Australian jurisdictions22 have a statutory discretion to award interest on damages.23 Common to those jurisdictions are three principles that courts must have regard to when exercising their power to award interest on damages.

First, the power is discretionary, and depending on legislation, the court must consider whether or not to award interest, for what period the interest calculation is to run, the rate of interest and on what portion of damages that interest will be applied. Second, the object of the power to award interest is to compensate plaintiffs for being kept out of damages and so the prima facie time for when interest starts to accrue is the point in time when the breach is said to have occurred.24 Third, the statutory provisions regarding interest do not apply to cases of dishonoured bills of exchange.25

ix Costs

Costs generally follow the event, meaning that the successful party is entitled to recover costs from the other side unless there is a good reason to justify a contrary order.26 Reasons that might deprive a successful party from recovering its costs include where the damages awarded are 'nominal',27 where the successful party misbehaved in relation to either the subject of the conduct of the proceedings or where the successful party rejected a settlement offer or offer of compromise, and failed to obtain an order or judgment on the claim no more favourable to such offer.28

x Tax

Awards of damages may be subject to taxation if categorised as income, indemnity or capital gain. Losses that would have been taxable, but for the wrong, and which then form the basis for an award of damages, will not necessarily still be considered taxable. An example of such losses are those forming the basis for an award of damages in certain personal injury cases.29

Expert evidence

i Introduction

A plaintiff seeking an award of damages must establish and assess losses suffered with as much certainty as the circumstances permit. Expert evidence can assist in persuading the court whether on balance the threshold of certainty has been met. Expert evidence adduced to assist the court in calculating damages are subject to the same rules of expert evidence in general.

ii The role of expert evidence in the calculation of damages

Expert evidence is particularly useful where scientific, technical or other specialised knowledge might assist the court in understanding evidence or facts at issue.

The common law position is that expert evidence cannot usurp the role of a judge in his or her function in calculating damages. If experts were allowed to answer the 'ultimate issue', and the answer is accepted by the court, then 'the chances of success on an appeal on fact are slight indeed, since there is direct and acceptable evidence on the very point at issue'.30 This 'ultimate issue' rule does not prevent questions being put to the expert witness that causes him or her to consider a hypothetical scenario where he or she is asked to assume the facts stated in evidence to be true.31

The common law's 'ultimate issue' rule has been abolished by statute.32 Although expert evidence cannot be deemed inadmissible solely because it goes to an 'ultimate issue', the rule still has utility as a caution for judges to 'exercise particular scrutiny when experts move close to the ultimate issue, lest they arrogate expertise outside their field or express views unsupported by disclosed and contestable assumptions'.33

iii The court's role in excluding and managing expert evidence

Courts are able to consider and manage expert evidence that goes to proving the quantum of damages in accordance with the same principles applicable to the assessment of expert evidence generally. The Evidence Act34 contains provisions addressing the admissibility of expert opinion. Although not all expert evidence is opinion, the rules relating to the admissibility of non-opinion expert evidence are generally analogous to that of expert opinion.

Generally, evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.35 This exclusionary opinion rule does not apply if the person expressing the opinion has specialised knowledge based on the person's training, study or experience, and that opinion is wholly or substantially based on that knowledge.36

Heydon JA's judgment in Makita37 provides a summary of the principles relating to the admissibility of expert opinion:

In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of 'specialised knowledge'; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be 'wholly or substantially based on the witness's expert knowledge'; so far as the opinion is based on facts 'observed' by the expert, they must be identified and admissibly proved by the expert; and so far as the opinion is based on 'assumed' or 'accepted' facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight.

Where an expert's opinion is admissible, courts are still unlikely to be persuaded by the evidence or to accept the expert's conclusions in circumstances where the expert relied upon flawed assumptions. In Norris v. Blake,38 the New South Wales Court of Appeal considered the differing opinions expressed by a number of experts that related to the respondent's likely life expectancy in a personal injury claim. The economic loss ultimately awarded was dependent on the respondent's life expectancy. The court held that a relevant factor was the assumption held by many of the experts that the respondent would be in a persistent vegetative state. The court went on to conclude that the primary judge was entitled to discount those opinions because of his Honour's finding that the respondent was not in fact in a persistent vegetative state.

iv Independence of experts

In most jurisdictions within Australia an expert can be retained by either one or multiple parties to the proceedings, but the expert must remember that his or her paramount duty is to the court and not the parties retaining them.39 Experts are duty bound to assist the court impartially and so must maintain a level of independence.

This duty to the court means that an expert cannot be 'an advocate for the cause' of the party retaining them. However, it does not mean that experts are required to refrain from giving evidence where they are a party to proceedings, have a material interest in proceedings, or are employed by a party to proceedings. Relationships of this kind do not necessarily infer that an expert cannot give impartial and objective evidence, nor that they will act as advocates for the party retaining them.40 Rather, these are factors relevant to the assessment of the weight to be given to the expert's evidence at trial.41

v Challenging experts' credentials

A party can challenge an expert's credentials by asserting that the expert does not possess 'special knowledge, skill, experience or training about a matter'.

If the expert is found to not possess the relevant special knowledge, skill, experience or training about a matter, his or her evidence will be inadmissible.

In establishing whether or not the expert possesses the relevant special knowledge, skill, expertise or training, first the relevant field of expertise must be identified and then the judge must consider the skill of the witness purporting to be an expert.

Each opinion or piece of evidence adduced must then wholly or substantially fall within the identified field of the witnesses' expertise. A chartered accountant, although able to express opinions about accounting standards, cannot necessarily give evidence relating to the conduct of a company director.42 Another example where opinion is not wholly substantially based on the witness' specialised knowledge is where a chartered accountant is retained to write a report in which he or she restates the books of a publicly traded company, where that company is alleged to have misrepresented its financial position. Assuming that the accountant has no other expertise, he or she cannot then also be retained to calculate the true market value of the company's shares had the company not misrepresented its financial position (i.e., the accountant cannot calculate the loss suffered by an investor who bought the company's shares). In that case, the latter opinion, although relating to and following on from the calculations based on accounting expertise, falls substantially outside the accountant's field of expertise.

vi Novel science and methods

Experts engaged to quantify damages in securities actions use a method of quantitative linear regression involving event studies. Event studies aim to quantify effects on share price caused by information (or rather misinformation) released to the market. This method of quantification arose out of US securities fraud litigation. Event studies assume a semi-strong efficient capital market hypothesis and require experts to select a relevant market or industry share index and obtain data for the movement in that index over a relevant period and compare it to the share price of the subject company to establish statistically significant linear trend by way of regression analysis.43 Then, by comparing the actual share price immediately after the disclosure of information and a predicted price using the aforementioned trend, an expert concludes that the difference in those prices is the dollar value attributable to the disclosure of the information.

Recent case law

i Market-based causation in Re HIH Insurance Ltd (in liq) [2016] NSWSC 482 (HIH Insurance [2016]), Re HIH Insurance Ltd (in liq) [2017] NSWSC 380 (HIH Insurance [2017]), TPT Patrol Pty Ltd as trustee for Amies Superannuation Fund v. Myer Holdings Ltd [2019] FCA 1747 and Masters v. Lombe (liquidator): In the matter of Babcock & Brown limited (in Liq) [2019] FCA 1720

The decisions of the Supreme Court of New South Wales in HIH Insurance [2016] and HIH Insurance [2017] and the recent decisions of the Federal Court of Australia in Myer and Babcock & Brown, while not entirely consistent in their reasoning, provide some level of clarity for shareholders, companies and directors on how Australian Courts will approach market-based causation in cases concerning loss arising from misleading and deceptive conduct claims involving securities. To the extent there remains a lack of clarity about the availability of market-based causation we still await an appellate court to authoritatively rule on the validity of the concept.

Prior to these decisions two New South Wales Court of Appeal decisions Digi-Tech (Australia) Limited v. Brand (2004) 62 IPR 184 and Ingot Capital Investments Pty Limited v. Macquarie Equity Capital Markets Limited (2008) 73 NSWLR 653 had held that in order to establish that the misrepresentation had caused the loss, each shareholder was required to prove that they relied on the misrepresentation to their detriment.

The facts of the cases

Each of the cases discussed involve representations to the market that were alleged to present either overly optimistic guidance about the companies' future prospects or that inflated the value of the companies.

HIH Insurance [2016] and HIH Insurance [2017] related to multiple claims by investors who acquired shares in HIH Insurance Limited (HIH) at an artificially inflated market price. HIH was a public company listed on the ASX. It was placed into liquidation in 2001 and admitted that its FY1999 financial statements, FY2000 interim financial statements and FY2000 final statements contained representations that were misleading and deceptive.44 These representations 'conveyed to the market an over-optimistic impression of HIH's financial position and prospects'.45 The statutory causes of action required investors to show that they had suffered loss 'by' the contravening conduct, in this case the misleading and deceptive financial statements.46

Myer involved claims brought by shareholders who acquired shares in Myer Holdings Ltd, a public company listed on the ASX, in reliance on profit forecast announcements Myer made to the market about its net profit after tax that were alleged to be misleading and deceptive. In September 2014, Myer announced that it expected profit growth for FY2015, and in March 2015 it announced that its net profit after tax was significantly less than its FY2014 results.47 Upon the March 2015 announcement being made, Myer's share price dropped by around 10 per cent. Shareholders alleged that the making of the September 2014 announcement engaged Myer's continuous disclosure obligations, and that Myer's failure to correct that announcement amounted to misleading and deceptive conduct.48 Assessment of damage was a central issue in the conduct of the case and the Myer defence.

The facts in Babcock & Brown also involved market announcements about group profit expectations, subsequent profit downgrades and ultimately in the liquidation of the group. The downgrades arose in the context of the emerging global financial crisis. Unlike HIH and Myer the Babcock & Brown action was not conducted as a class action but involved the consolidation of multiple individual claims. The procedural differences are not material to the discussion of the availability of market-based causation.

The decisions

Direct causation is established by the plaintiff shareholder proving that he or she read and relied on certain market announcements when making their investment decision and that the misleading information resulted in the price of the shares purchased being inflated. In contrast, in the HIH Insurance cases, Myer and Babcock & Brown, the plaintiffs contended that even if they had not personally relied upon the misleading and deceptive statements in their decision to acquire shares, by establishing that the defendants' conduct had caused the market price for the shares to be inflated, the element of causation was established.49

Accordingly, the wording of these statutes was critical in considering whether loss could be established via indirect causation. Justice Brereton interpreted the word 'by' to express 'the notion of causation without defining or elucidating it'.50 He followed Mason CJ's judgment in March v. Stramare,51 which stated that for a sufficient causal link to be established, it must be shown that the contravening conduct 'caused or materially contributed to' the loss.52 In this vein, Justice Beach confirmed that the word 'by' does not suggest that reliance is a necessary condition, opening up the possibility that causation may be established indirectly.53 In Babcock & Brown, Foster J, cautiously accepted that market-based causation could be proven by economic expert evidence; however, his Honour admonished that the theory does not comfortably accommodate the subsequent sale of shares for a price equal or greater to the purchase price and risks compensating shareholders who suffered no loss.

Thus, Brereton J found that it was not necessary to prove each investor's individual reliance on the misleading or deceptive financial statement and that a causal link could instead be established by showing that HIH made misleading or deceptive representations in relation to its financial statements, the market was deceived into a misapprehension that HIH was trading more profitably than it really was and had greater net assets than it really had, HIH shares traded at an inflated market price and investors paid that inflated market price to acquiring shares, thereby suffering loss.54 This causal link is referred to as indirect market-based causation.

Justice Beach endorsed this approach in Myer when determining whether the omission to correct the September 2014 announcement inflated Myer's share price, and that investors who acquired shares after that announcement did so at an inflated price.55 However, fatal to the applicant's case on this analysis was a factual finding that the market was sceptical of the September 2014 announcement and instead anticipated a lower profit result, effectively negating any inflation to Myer's share price.56

Justice Foster in Babcock & Brown ruled that the alleged misrepresentations were not made out or, not unlike the finding of fact in Myer, were not material.

Following on from the HIH Insurance [2016] decision, Brereton J considered the issue of quantum in HIH Insurance [2017]. Generally, the measure of damages in these types of cases is 'the difference between the price [the plaintiff] paid and the price they would have paid had the contravening conduct not occurred but all other factors had remained constant'.57 A complicating factor in calculating the quantum of loss was that shareholders had purchased shares while their market price was inflated by misrepresentations, but then subsequently sold some of those shares within the inflated period. Various approaches were suggested to Brereton J for consideration, including a 'last-in-first-out' (LIFO) approach, a 'first-in-first-out' (FIFO) approach and a proportionate approach. A proportionate approach requires treating the shares sold during the inflationary period as being proportionately drawn from the shares owned prior to the inflationary period and the shares acquired during the inflationary period. Brereton J held the LIFO method to be the favoured approach because it requires the shareholder to account for any inflationary benefit received on a share sale.

Indirect market-based causation and 'fraud-on-the-market' approaches

The principle recognised by Brereton J is similar but not identical to the well-established 'fraud-on-the-market' doctrine recognised by the United States Supreme Court in Basic v. Levinson.58 The key difference between the two doctrines is that, under the approach recognised in HIH Insurance [2016], there is no need to establish reliance. In contrast, the American doctrine provides plaintiffs with a presumption of reliance on the integrity of the market price of securities affected by the misrepresentation, which it is open to the defendant to rebut with sufficient evidence.

Notably in Myer, Justice Beach dismissed the US doctrine of fraud on the market as irrelevant to the Australian jurisdiction. The driving force for the doctrine, being a response to the requirement in US securities legislation to prove reliance, is absent in the corresponding Australian legislation.59 Further, imposing the doctrine would rather confusingly mean that in cases of misleading and deceptive conduct by omission a shareholder must prove they relied upon undisclosed information of which they were unaware.60

Myer and Babcock & Brown demonstrate that even if the validity of market-based causation is recognised by Australian courts it is still necessary for plaintiffs alleging deception to prove that the relevant conduct was misleading and that the misleading conduct was causative of an inflation in the share price. An appeal against Foster J's decision in Babcock & Brown was recently dismissed by the Full Court of the Federal Court.61

ii Breach of trust and equitable compensation in Kerr v. Australian Executor Trustees (SA) & Ors [2019] NSWSC 1279 and Australian Executor Trustees (SA) v. Kerr & Ors [2021] NSWSCA 5 (AET)62

In Australia, the status of equity as a body of law distinct from common law is the subject of an enduring debate.63 Some jurists contend that the two have fused, so that the principles applicable to one may alter those applicable to the other.64 Others assert this to be a fallacy, arguing that equity follows its own 'coherent body of principles'.65 In the recent AET decision, the Supreme Court of New South Wales considered whether common law principles of causation reasoning apply in the determination and quantification of equitable compensation.

The facts of the case

AET concerned a plantation timber managed investment scheme in which investors, called covenantholders, purchased covenants entitling them to a rateable share in the proceeds of milled timber. The forestry scheme was structured such that timber was grown and sold by forestry companies who were contractually obliged to pay the timber sale proceeds to AET. AET, who acted as trustee for the covenantholders' investments, was required under the trust arrangements to hold and distribute to covenantholders proceeds from the sale of timber to which covenantholders were entitled.

The trust arrangement afforded several protections to covenantholders to ensure payment by the forestry company to AET, most significant of which was the registration of encumbrances over the land upon which timber was grown. The encumbrances were a form of security akin to a statutory mortgage that conferred upon AET a power of sale over the land if the forestry company defaulted in its obligations.

In early 2008, the forestry company was acquired by Gunns Limited, a major Australian forestry enterprise. Some years after the acquisition, Gunns and the forestry company provided a charge to the ANZ Bank as security for moneys lent to the Gunns Group. Then, in early 2011, Gunns encountered financial difficulties and moved to sell off several of its non-core assets, including the forestry scheme assets. The sale process culminated in March 2012, with AET and the forestry company entering into an agreement with a third party purchaser to sell the forestry scheme's trees and land for A$33.9 million and A$4.8 million respectively. Under the sale agreement, covenantholders were to receive amounts proportionate to their interests in the trees and land.

To enable a clear title pass to the purchaser, AET agreed to the requirement that it discharge the encumbrances which it held over the land. Fatally for the covenantholders, AET discharged the encumbrances without insisting upon upfront payment nor an alternative form of security, and instead agreed to the sale proceeds referable to covenantholders' interest to be paid into the forestry company's bank account. In the events that happened, the forestry company did not have its own bank account, and the proceeds were paid directly into an overdraft account in the name of Gunns and were subsumed by the ANZ Bank's charge and entirely lost to the covenantholders.

Covenantholders moved to have the Court appoint an additional trustee, Mr Kerr, to the forestry scheme to investigate and commence proceedings against AET alleging a breach of trust. The proceeding was heard in the New South Wales Supreme Court before Stevenson J, who found that AET had committed a breach of trust by failing to obtain upfront payment or negotiate alternative security. Stevenson J was then required to determine whether that breach of trust had caused covenantholders to suffer losses. Essentially, the court was tasked with determining whether or not equitable compensation is determined by reference to the common law principles of remoteness and foreseeability of loss.

The first instance decision

In the first instance decision, Stevenson J resolved the issue of causation by distinguishing the analysis of causation at common law from the applicable test for equitable compensation. While at common law a plaintiff must satisfy the tests for foreseeability and remoteness of loss, his Honour found that the applicable test was whether 'but for' the breach, the covenantholder loss would not have occurred.66 In other words, the plaintiff 'need only establish that the loss was caused “by”, “by reason of”, or “as a result of” the wrongful conduct'.67 Once a causal link is found, equity does not require an examination of foreseeability or remoteness. His Honour referred to the reasoning in Ancient Order of Foresters In Victoria Friendly Society Ltd v. Lifeplan Australia Friendly Society Ltd, that because equity is concerned with vindicating an equitable obligation that has been breached, the 'but for' test of causation is sufficient irrespective of other contributing causes.68

It was accepted by the parties that if AET had insisted on payment or alternate security the timber and land sale transaction would have proceeded. Mr Kerr positively contended that in the counterfactual transaction that would have occurred if AET did not breach its duties the covenantholders would have received their interests in the timber proceeds. Stevenson J accepted on the evidence that Mr Kerr had satisfied his onus position and rejected AET's arguments that in the counterfactual transaction the covenantholders would have received a lesser amount because Gunns and the ANZ Bank would not have agreed to provide upfront payment or alternative security. Critically, Stevenson J, having found that 'but for' the breach the covenantholder loss would not have occurred, was not prepared on the evidence presented by AET to speculate against the covenantholders as to what may or may not have subsequently transpired.

The appeal decision

AET appealed the first instance decision of Stevenson J on grounds that his Honour erred in quantifying the losses suffered by covenantholders by reason of AET's negligence. In particular, AET contended that certain losses were not, on a common-sense view of causation, caused by its negligence.

In determining these grounds of appeal, the Court of Appeal confirmed Stevenson J's approach to causation, affirming that once the plaintiff's onus to prove loss had been discharged, the onus shifts to the defendant to demonstrate that all or part of the loss would have been suffered even if the defendant had not breached the trust.

On this basis, the factual arguments raised by AET to support its appeal were rejected in that they involved a high degree of speculation in favour of a defaulting trustee, and that AET had failed to adduce sufficient supporting evidence at trial.

Causation in equitable compensation

Stevenson J's decision in AET confirms that the assessment of quantum in cases seeking equitable compensation does not entertain considerations of what would or ought to have happened but for a breach of fiduciary duties. Rather than adopting a 'fused' approach that assimilates common law principles and equity when determining causation,69 equity applies a distinct approach that is only concerned with protecting plaintiffs against breaches of equitable duties.

iii General damages for defamation in Bauer Media Pty Ltd v. Wilson (No. 2) and subsequent developments

While the above cases discuss the role common law and equitable principles play in determining the availability and quantification of damages, it is important to consider the extent to which statute modifies these principles.

In Australia, defamation legislation proscribes the maximum amount that can be awarded for general damages. General damages comprise lump sum awards for both pure compensatory loss and aggravated damages. However, there has been confusion as to the operation of the statutory maximum, demonstrated by the high-profile and controversial Bauer Media Pty Ltd v. Wilson (No. 2) case.70 Resultantly, the Model Defamation Amendment Provisions 2020 will clarify that the maximum damages amount operates as a scale rather than a cap, which cannot be lifted where aggravated damages are awarded. An award for damages must still have an appropriate and rational relationship to the harm suffered by a plaintiff.71

Bauer Media Pty Ltd v. Wilson (No. 2) (Bauer)

The facts of the case

In 2015, Bauer Media published several magazine and online articles alleging that Ms Wilson, a prominent Australian actor, was a serial liar. Ms Wilson commenced proceedings in the Supreme Court of Victoria alleging that the articles were defamatory and had caused her to suffer loss, which she identified to include disrepute, humiliation and loss of future work.

At trial, Ms Wilson was successful in receiving an award of A$650,000 for general damages, which included aggravated damages, and A$3,917,472 for special damages.72 On appeal, Bauer Media contested the quantum of damages. One of Bauer Media's grounds of appeal was that the trial judge had erred in exceeding the statutory cap for general damages.

The decision

Bauer Media argued that the proper construction of the statutory cap required the trial judge to award aggravated damages separately from pure compensatory damages, and that only aggravated damages may exceed the statutory cap.73 The substance of this submission was that where a court assesses pure compensatory damages to exceed the statutory cap, and considers aggravated damages to be warranted, a plaintiff will only receive pure compensatory damages in the capped amount, and then receive a separate award for aggravated damages that may exceed the cap.

The Court of Appeal rejected this argument, finding that neither the language of the legislation nor the intention of Parliament mandated, expressly or implicitly, a separate award for aggravated damages. Doing so would place courts in the 'impossible situation' of ascertaining the unquantifiable, being what should be awarded specifically to console a plaintiff's hurt feelings and compensate for their reputational damage.74 The court considered that a literal reading of the legislation provided that where a court awards aggravated damages, it is entitled to exceed the statutory cap in respect of both pure compensatory and aggravated damages.75

It was further put by Bauer Media that some of the trial judge's findings in relation to conduct warranting aggravated damages should be set aside.76 Specifically, Bauer Media submitted that the trial judge erred in finding that it was not justified in defending the proceedings and it was improper for a defence of triviality to be run, that it had failed to apologise to the plaintiff, and that it had disclosed confidential information in publishing the defamatory material.

In setting aside these findings, the Court of Appeal reassessed damages for non-economic loss to be in the amount of A$600,000. The decision confirms that awards for general damages are made as a lump sum, and controversially found that where aggravated damages are warranted, an award can exceed the statutory cap in respect of the whole of an award for general damages.

This approach was adopted in another high-profile defamation case involving the actor, Geoffrey Rush: Nationwide News Pty Ltd v. Rush.77

Model Defamation Amendment Provisions 2020

Following Bauer, the Council of Attorneys-General approved amendments to Australia's Model Defamation Provisions on 27 July 2020. In respect of damages, the amendments purport to clarify that the maximum amount of damages for non-economic loss operates as a scale or range of damages, rather than a cap. The first state to implement the reforms was New South Wales, with the amendments having come into force on 1 July 2021.78 Under the statutory regime that is to be replaced, damages for non-economic loss are limited to a prescribed amount that can only be exceeded 'if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages'.79 However, the amendment provisions provide that 'the maximum damages amount is to be awarded in the most serious case.'80 While the court's power to award aggravated damages is not limited, any award of aggravated damages is to be made separately to an award of damages for non-economic loss, so that the scale or range continues to apply even where aggravated damages are awarded.81

The effect of the amended provisions is to overturn decisions such as Bauer and Nationwide News Pty Ltd v. Rush, which saw the statutory maximum for damages removed on the basis that aggravated damages were awarded.

Matthews v. Pigram (Matthews)

The decision in Matthews v. Pigram82 includes a useful analysis of the principles applicable to the assessment of damages for non-economic loss in defamation claims in the period prior to the enactment of the amendments.

The facts of the case

These proceedings for defamation arose from the publication of three emails which the defendant sent to the plaintiff's employer and to other residents in the building complex for which the plaintiff was the strata committee chairperson. The emails included accusations that the plaintiff was a 'peeping Tom'. The plaintiff's employers undertook an investigation into the allegations. Although the plaintiff was exonerated shortly after, this caused great embarrassment to the plaintiff, which compounded when residents of the building complex made adverse comments. A request for a retraction of the emails and an apology was sent to the defendant, however there was no response and two months later, in November 2019, these proceedings were commenced.

The decision

In considering the applicable principles for the award of damages, Gibson DCJ recognised that there are conflicting views on assessment methods and the appropriate quantum. Her Honour considered that the issue is not merely whether the impact of aggravated damages is to lift the statutory cap, as considered in Bauer,83 but also whether the generally high awards of damages in defamation proceedings are justified.84

As to the applicability of Bauer, Gibson DCJ noted that the while the case attracted judicial criticism, courts have been reluctant to substantively address the impact of the decision when awarding aggravated damages.85 Her Honour concluded the court was bound to follow Bauer for the time being, as affirmed in Aldridge v. Johnston,86 despite acknowledgment that the proposed statutory amendments would result in a maximum that is not to be lifted.87

As to the complaint that awards for damages in defamation cases are too high, particularly in New South Wales,88 Her Honour concluded that it was appropriate to follow the approach of Campbell J in in Balzola v. Passas,89 which similarly involved a brief dispute and allegations of criminal conduct. Accordingly, the approach adopted in deciding the appropriate quantum was to draw analogy to cases of similar factual circumstances.

Her Honour reasoned that, while the law places a high value on a person's reputation, the limited extent of the publication of the email, an overlap in content and timing, and the context of the publications suggested that damages would be in a small range.90 However, those factors did not operate to trivialise the hurt to the plaintiff.91

A mere failure to apologise was found not to be lending to an award of aggravated damages itself. Rather, such a failure must prolong and intensify the hurt experienced by the plaintiff to warrant an award of aggravated damages.92 Accordingly, such an award was not appropriate in Matthews.

On this basis, and taking into account the general concern as to the scale of damages awarded for defamation in New South Wales, Gibson DCJ found the appropriate award of damages was A$20,000.

iv Damages for disappointment and distress in Moore v. Scenic Tours Pty Ltd

Moore v. Scenic Tours Pty Ltd93 (Moore)

The facts of the case

In 2012, the appellant, Mr Moore, booked a holiday for himself and his wife with the respondent, Scenic Tours Pty Ltd (Scenic), which did not proceed as promised. Mr Moore brought representative proceedings in the Supreme Court of New South Wales, claiming breaches of the Australian Consumer Law (ACL) on the basis that: Scenic failed to exercise due care and skill in the supply of tours;94 the tours were not fit for the purpose for which they were acquired;95 and the tours were not of a nature and quality that could reasonably be expected to achieve the desired result.96 Relevantly, the alleged loss included disappointment and distress for breach of contract to provide pleasure and relaxation.

At first instance, Garling J awarded Mr Moore A$16,539.85 inclusive of interest and A$2,000 for disappointment and distress, plus interest. However, the Court of Appeal set aside the award of damages for disappointment and distress on the basis that the operation of Part 2 of the Civil Liability Act 2005 (NSW) (CLA) imposed a geographical limitation that excluded Mr Moore's claim. In the Court of Appeal, Mr Moore reserved his position as to whether a claim for damages for disappointment and distress constitutes a claim for personal injury damages for non-economic loss within the scope of Section 16 of the CLA. However, that issue was pursued on appeal to the High Court.

The decision

Scenic submitted that the loss suffered by Mr Moore was a personal injury for the purposes of Part 2 of the CLA, arguing that disappointment and distress is effectively an impairment to mental condition.97 On this construction, Section 16 of the CLA would limit Mr Moore's claim for damages, as damages may only be awarded for non-economic loss if the severity is at least 15 per cent of the most extreme case.

Mr Moore submitted that his claim for disappointment and distress damages related to a breach of contract and thus fell outside of Part 2 of the CLA. Mr Moore argued that disappointment and distress is a normal response to a breach of a promise that had been paid for, and not an impairment of mental condition associated with personal injury.98

In a joint judgment, Kiefel CJ and Bell, Gageler, Keane, Nettle and Gordon JJ, with Edelman J in agreement, accepted Mr Moore's argument and distinguished damages for disappointment and distress from personal injury damages for non-economic loss.99

Generally, damages were not awarded for distress and disappointment arising from a breach of contract.100 However in Baltic Shipping Co v. Dillon (Baltic),101 Mason CJ critiqued that the rule was based on 'flimsy policy considerations' and has been undermined by exceptions.102 The plurality in Moore endorsed Baltic, accepting that where the object of a contract is to provide pleasure or relaxation, disappointment and distress arising from breach is a compensable head of loss separate from injured feelings compensable under the rubric of pain and suffering associated with personal injury.103

In addressing Scenic's submission, their Honours found that 'pain and suffering' has its common law meaning of actual hurt or psychiatric injury occasioned by the incident or its aftermath.104 Mr Moore did not claim actual hurt or psychiatric injury; his loss was a normal reaction of an unimpaired mind.105 On this basis, it was concluded that Mr Moore's claim related to breach of a promise of enjoyment and relaxation, a compensable head of damage pursuant to Baltic.

The High Court reinstated the order of damages for disappointment and distress, together with pre-judgment interest. Scenic was additionally ordered to pay Mr Moore post-judgment interest, alongside the cost of appeal and application for special leave.

Prygodicz v. Commonwealth (No. 2)

Representative proceedings brought in the Federal Court of Australia must seek approval of the court for any settlement reached.106 In the representative proceedings of Prygodicz v. Commonwealth (No. 2),107 the small likelihood of success of a claim for damages for disappointment and distress was a factor lending to the approval of the proposed settlement.

The facts of the case

The parties applied for settlement approval of a representative proceeding which arose out of the Commonwealth's use of an automated debt-collection system. It was alleged that the use of the system resulted in unjust enrichment and caused economic loss to group members on the basis of a breach of duty of care. On the negligence claims, the lead applicant and group members sought damages for disappointment and distress.

The court considered that it would be difficult for the applicants to establish their claim for damages for disappointment and distress in any prospective trial. Murphy J, citing Baltic and Moore, affirmed that damages for disappointment and distress are consequential to claims for breach of contract. As such, the applicants' claim for disappointment and distress damages in the tort of negligence was described as 'novel and weak', and was a factor lending to the ultimate success of the settlement approval application.108

Evidently, Prygodicz v. Commonwealth (No. 2) affirms the decision in Moore and demonstrates that the likelihood of establishing the claimed damages will be a relevant factor for consideration in settlement approval hearings.

v A common-sense approach for damages involving building and construction breach of contract and quantum meruit in Mann v. Paterson Constructions Pty Ltd

In the context of building and construction disputes, several recent decisions by the High Court of Australia, the Victorian Court of Appeal and the New South Wales Court of Appeal have signalled a departure from a rigid application of damages principles in favour of a common-sense approach informed by the facts.

Mann v. Paterson Constructions Pty Ltd

In Mann, the High Court of Australia considered what the appropriate measure of damages is where a claimant provides work or services pursuant to a contract and that contract is breached or repudiated by the other party before payment is made. Prior to this decision, Australian law permitted claimants to elect between contractual damages or a claim for restitution based on quantum meruit for a 'fair market value' of the work or services provided. A rigid application of these principles allowed claimants to gain a windfall by electing for compensation based on quantum meruit in circumstances where the value of the work performed exceeded the contractual entitlements.

The facts of the case

The Manns entered into a contract for the construction of two terrace houses with Paterson Constructions Pty Ltd. After completion of the first terrace house, but before completion of the second terrace house, a dispute arose over, among other things, moneys claimed for variations to building works. The Manns purported to terminate the contract and exclude Paterson Constructions from the site. In response, Paterson Constructions commenced proceedings in the Victorian Civil and Administrative Tribunal (VCAT), alleging that the conduct of the Manns constituted repudiation and purported to accept that repudiation.109 VCAT found that the Manns had wrongfully repudiated the contract and that Paterson Constructions was entitled to recover payment for the works on a quantum meruit basis. That quantum meruit entitlement was calculated by reference to evidence from a quantity surveyor in the amount of A$1,606,313, whereas the amount that could have been recovered by contractual damages was A$971,000.

The Manns appealed the decision of the VCAT to the Supreme Court of Victoria on grounds that the VCAT had either misunderstood or misapplied the principles applicable to assessing the value of a quantum meruit claim, and that the proper test was to assess a value on the basis of what was 'fair and reasonable' which required consideration of the contract price.110 In dismissing the appeal, Justice Cavanough (at first instance) and then the Court of Appeal held that the Court was bound by the decision of Sopov, which held that where an owner's wrongful repudiation of a building contract is accepted by the builder, the contract is deemed void from the beginning, and that where the builder elects to claim in quantum meruit, that claim is assessed independently of the contract by reference to the value of the benefit conferred on the owner.

On appeal by the Manns, two issues were put before the High Court of Australia:

  1. whether, in the context of repudiation of contract, quantum meruit can be an alternative form of compensation to contractual damages; and
  2. if quantum meruit is available, should the contract price cap that quantum that may be recovered.111

In addressing (a), the High Court applied a common-sense approach, finding that where works subject to progress payments or for variations were due prior to termination, a builder is restricted to contractual remedies and cannot pursue quantum meruit, either because the ability to elect between claims improperly subverted a contractual allocation of risk,112 or that a contractual right to payment is an enforceable action in debt.113 Where works performed are subject to a progress payment post-termination, the High Court held that a quantum meruit claim was open, either on the basis of a non-contractual claim based on debt,114 or a total failure of consideration giving rise to restitution.115

In answering (b), the majority held that a quantum meruit claim is capped by reference to the contractually agreed price. Gageler J reasoned that this was to prevent a plaintiff from accruing an unfair benefit,116 while Nettle, Gordon and Edelman JJ saw the cap as a way of preserving the parties' agreed allocation of risk.117

Mistrina Pty Ltd v. Australian Consulting Engineers Pty Ltd [2020] NSWCA 223

A common difficulty faced by claimants in building and construction disputes is establishing liability for third-party contractors. Prior to Mistrina, that liability was limited to losses that are directly connected to the contractual relationship with the primary contractor. However, the decision of the New South Wales Court of Appeal in Mistrina means that, in the absence of a contractual arrangement, third-party contractors engaging in misleading conduct may still be liable for losses suffered by other parties.

The facts of the case

Mistrina, a property developer, contractually engaged a builder to construct a mixed-use development in Sydney using construction funding provided by BankWest in exchange for a mortgage over the property. Under a contractual arrangement with the builder, Australian Consulting Engineers (ACE) provided a structural engineering compliance certificate in relation to raft slabs used for the development. In the events, the raft slabs were discovered to be defective, which caused construction to cease. As a result, Mistrina defaulted on its debt obligations with BankWest, and BankWest moved to enforce those obligations by selling the mortgaged property.

Mistrina commenced proceedings against ACE, alleging that it had engaged in misleading and deceptive conduct by certifying the defective raft slabs. Mistrina contended that as a result of this conduct, it had lost the opportunity to complete the development and to derive profits by selling the development. While at first instance ACE was found to have engaged in misleading and deceptive conduct by certifying the defective raft slabs, the primary judge held that Mistrina failed to adduce evidence sufficient of establishing causation. That decision was overturned on appeal, on the basis that there was an overwhelming inference that the defective raft slabs were a material cause of BankWest enforcing Mistrina's debt obligations, and that a reasonably foreseeable consequence of this was the loss of opportunity to complete and sell the development.

The decision confirms that the liability of third-party contractors is no longer limited to losses directly related to contractual arrangements. Rather, third-party contractors engaging in misleading and deceptive conduct can be liable for indirect economic losses suffered by other parties, such as loss of opportunity.

Leeda Projects Pty Ltd v. Zeng [2020] VSCA 192

In disputes involving the delay of completion of a building contract, a common measure for damages is the commercial value of rent that would have been paid to the owner but for the delay in construction. However, a rigid application of this approach can cause problems in quantifying damages, particularly where an owner does not intend to reside in or rent the premises. This issue was considered by the Victorian Court of Appeal in Leeda Projects Pty Ltd v. Zeng.

The facts of the case

Leeda Projects were engaged under a standard form building contract by Zeng to fit out her apartment as a private art gallery. A dispute arose between the parties and works were suspended. Leeda Projects commenced proceedings in the VCAT against Zeng for failure to pay. Zeng counterclaimed, seeking damages for, inter alia, loss of use and enjoyment of the property arising from Leeda Project's delay in completing work within a reasonable time. Ms Zeng contended that the measure of damages should either be the residential rental value of the property during the period of the delay or the wasted expenditure associated with the costs of ownership during the delay.

The VCAT awarded Zeng nominal damages on the basis that Zeng was not claiming actual loss of rent or ownership costs during the delay period as a direct result of the delay, but rather sought those amounts as a comparative representation of reasonable compensation for her loss of enjoyment and use of the apartment.

Zeng appealed to the Supreme Court of Victoria and was awarded substantial damages. The Court held that expenses associated with ownership were not an appropriate measure of loss because they were a direct consequence of ownership and would have been incurred irrespective of the delay, and that the appropriate measure of loss of use equates with the rental value of the apartment.

However, the decision of the Supreme Court was overturned on appeal. This was on the basis that there was no authority that provided that the default measure of loss of use was the rental value of a property. Applying such a measure of loss would be inconsistent with factual findings that the apartment was never intended to be rented or resided in and would have placed the applicant in a better position than if the fitout works were completed on time. In this circumstance, the Court of Appeal reasoned that the appropriate measure of loss was the wasted costs of ownership as those costs were incurred to enable the apartment to be used as a private gallery, and the delay occasioned an inability for the apartment to be used for that purpose.

The decision of the Supreme Court of Appeal highlights the risks that a rigid application of damages principles have in placing plaintiffs in a position that is better-off than one where the breach of contract had never occurred. To overcome such an outcome, the courts appear to be shifting to a common-sense measure of damages that is informed by the facts of each case.

Footnotes

1 Simon Morris is a partner, Thomas Riddell is an associate and Christina Athanasopoulos is a law clerk at Piper Alderman. The authors acknowledge the contributions of Dr David Winterton and Amir Chowdhury to the previous editions of this chapter.

2 See Harris v. Digital Pulse Pty Ltd (2003) 56 NSWLR 298 (Heydon JA).

3 See Bunnings Group Ltd v. CHEP Australia Ltd [2011] NSWCA 342; (2011) 82 NSWLR 420 at [172]–[175], [177]–[178], considering damages assessment for conversion or detinue.

4 For trespass to land, see Houghton v. Immer (No. 155) Pty Ltd (1997) 44 NSWLR 46 and Inverugie Investments v. Hackett [1995] 1 WLR 713 (PC).

5 See J Edelman, Gain-Based Damages: Contract, Tort, Equity and Intellectual Property (Hart 2002).

6 See Hospitality Group Pty Ltd v. Australian Rugby Union Ltd (2001) 110 FCR 157; compare Attorney General v. Blake [2001] 1 AC 268.

7 See Paciocco v. Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525; [2016] HCA 28, [57] (French CJ and Kiefel J).

8 ibid. [165] (Gageler J).

9 Livingstone v. Rawyards Coal Co (1880) 5 App Cas 25, 39 (Lord Blackburn).

10 Luna Park (NSW) Ltd v. Tramways Advertising Pty Ltd (1938) 61 CLR 286.

11 Johnson v. Perez (1988) 166 CLR 351, 356.

12 O'Brien v. McKean (1968) 118 CLR 540.

13 Simply Irresistible Pty Ltd v. Couper [2010] VSC 601.

14 Hasell v. Bagot, Shakes & Lewis Ltd (1911) 13 CLR 374, 388.

15 Fox v. Wood (1981) 148 CLR 438, 148.

16 See the discussions in YP Barley Producers Ltd. v. Robertson (EC) Pty Ltd [1927] VLR 194 and, more recently, Flame SA v. Glory Wealth Shipping Pte Ltd (The Glory Wealth) [2013] EWHC 3153 (Comm).

17 Sellars v. Adelaide Petroleum NL (1994) CLR 332.

18 Pennant Hills Restaurants Pty Ltd v. Barrell Insurances Pty Ltd; sub nom Barrell Insurances Pty Ltd v. Pennant Hills Restaurants Pty Ltd (1981) 145 CLR 625.

19 Personal Injuries (Liabilities and Damages) Act 2003 (NT) Section 22; Civil Liability Act 2002 (NSW) Section 14; Civil Proceedings Act 2011 (Qld) Section 61; Civil Liability Act 1936 (SA) Sections 3 and 5; Civil Liability Act 2001 (Tas) Section 28A; Wrongs Act 1958 (Vic) Section 28I.

20 Law Reform (Miscellaneous Provisions) Act 1941 (WA) Section 5.

21 Brown Boveri (Aust) Pty Ltd v. Baltic Shipping Co (1989) 15 NSWLR 448, 464.

22 But not in Tasmania.

23 Judiciary Act 1903 (Cth) Section 77MA(2)(a); Federal Court of Australia Act 1976 (Cth) Section 51A(2)(a); Federal Circuit Court of Australia Act 1999 (Cth) Section 76(4)(a); Court Procedures Rules 2006 (ACT) r1616(6)(a); Supreme Court Act 1979 (NT) Section 74(2)(a); Civil Procedure Act 2005 (NSW) Section 100; Civil Proceedings Act 2011 (Qld) Section 58; Supreme Court Act 1936 (SA) Section 30C(4)(a); District Court Act 1991 (SA) s39(4)(a); Magistrates Court Act 1991 (SA) Section 34(4)(a); Supreme Court Act 1986 (Vic) Section 60(2)(a); Supreme Court Act 1935 (WA) Section 32(2)(a).

24 Grincelis v. House (2000) 201 CLR 321.

25 Judiciary Act 1903 (Cth) Section 77MA(2)(c); Federal Court of Australia Act 1976 (Cth) Section 51A(2)(c); Federal Circuit Court of Australia Act 1999 (Cth) Section 76(4)(c); Court Procedures Rules 2006 (ACT) r1616(6)(c); Supreme Court Act 1979 (NT) Section 74(2)(c); Civil Procedure Act 2005 (NSW) Section 100(3)(d); Civil Proceedings Act 2011 (Qld) Section 58(4)(b); Supreme Court Act 1935 (WA) Section 32(2)(c).

26 Milne v. A-G (Tas) (1956) 95 CLR 460, 477.

27 Alltrans Express Ltd v. CVA Holdings Ltd [1984]1 All ER 685.

28 Singleton v. Macquarie Broadcasting Holdings Ltd (1991) 24 NSWLR 2013, 108, Uniform Civil Procedure Rules 2005 (NSW) Rules 42.15-42.15A.

29 Atlas Tiles v. Briers (1978) 144 CLR 202, 223.

30 Joseph Crosfield and Sons Ltd v. Techno-Chemical Laboratories Ltd (1913) 29 TLR 378, 379.

31 R v. Smith (1915) 11 Cr App R 229, 238.

32 Evidence Act 1995 (Cth), Section 80; each jurisdiction in Australia has its own Evidence Act, but they have been made uniform throughout almost all Australian jurisdictions.

33 R v. GK (2001) 53 NSWLR 317 (per Mason P).

34 Evidence Act 1995 (Cth).

35 id., Section 76.

36 id., Section 79.

37 Makita (Australia) Pty Ltd v. Sprowles (2001) 52 NSWLR 705, [85].

38 (1997) 41 NSWLR 49, 79.

39 Expert witness code of conduct Sch 7 UCPR; Federal Court of Australia Expert Evidence Practice Note (GPN-EXPT), Annexure A.

40 See Sydney South West Area Health Service v. Stamoulis [2009] NSWCA 153, [211]–[219]; compare Guy v. Crown Melbourne Ltd [2017] FCA 1104.

41 Rush v. Nationwide News Pty Ltd (No 5) [2018] FCA 1622, [37]–[38].

42 Australian Cement Holdings Pty Ltd v. Adelaide Brighton Ltd [2001] NSCW 645, [6].

43 Justice Beach, 'Structural and Forensic Developments in Securities Litigation', International Commercial Law Conference, Inner Temple, Inns of Court, London, 29 June 2016.

44 HIH Insurance [2016] NSWSC 482, [3].

45 id., at [38].

46 Trade Practices Act 1974 (Cth) Section 82(1); Corporations Act 1989 (Cth) Section 1005.

47 [2019] FCA 1747 at [3]–[4].

48 [2019] FCA 1747 at [5]–[6].

49 See Trade Practices Act 1974 (Cth) Section 52; see Corporations Act 1989 (Cth) Sub-sections 995 and 999. Note that these particular provisions have since been repealed and replaced.

50 HIH Insurance [2016] NSWSC 482.

51 (1991) 171 CLR 506, 514.

52 HIH Insurance [2016] NSWSC 482, [37].

53 [2019] FCA 1747 at [1519].

54 id., at [75].

55 [2019] FCA 1747 at [1633]-1672].

56 [2019] FCA 1747 at [1716].

57 id., at [74].

58 485 US 224 (1988). The continued correctness of the doctrine was also approved in Halliburton Co v. Erica P John Fund Inc 134 S Ct 2398 (2014).

59 [2019] FCA 1747 at [1535].

60 [2019] FCA 1747 at [1523].

61 Masters v. Lombe (liquidator); Re Babcock & Brown Ltd (in liq) [2021] FCAFC 161.

62 The decision in Kerr v. AET & Ors [2019] NSWSC 1279 is the subject of an appeal. At the time of publication, the appeal has been heard and judgment has been reserved.

63 See generally The Hon Justice Michael Kirby AC CMG, 'Equity's Australian Isolationism' (2008) QUT Law & Justice Journal 444.

64 See J D Heydon, M J Leeming and P G Turner, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (Butterworths LexisNexis, 5th ed, 2002), [2-130].

65 See The Hon Justice Michael Kirby AC CMG, 'Equity's Australian Isolationism' (2008) QUT Law & Justice Journal 444, 446; Pilmer v. Duke Group Limited (In Liq) (2001) 207 CLR 165, 231 [173]; see generally R P Meagher, J D Heydon and M J Leeming, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (Butterworths LexisNexis, 4th ed, 2002).

66 [2019] NSWSC 1279 at [371].

67 [2019] NSWSC 1279 at [367], citing AHRKalimpa [32] citing Ancient Order of Foresters in Victoria Friendly Society Ltd v. Lifeplan Australia Friendly Society (280) 360 ALR 1, 6 [9], 24–25 [84]–[88], 45 [179]; Youyang Pty Ltd v. Minter Ellison Morris Fletcher (2003) 212 CLR 484, 502 [44].

68 [2019] NSWSC 1279 at [366], citing Ancient Order of Foresters in Victoria Friendly Society Ltd v. Lifeplan Australia Friendly Society (280) 360 ALR 1, 25 [88].

69 See generally Permanent Building Society (in liq) v. Wheeler (1994) 11 WAR 187, 247; Bristol and West Building Society v. Mothew [1998] Ch 1, 16–17 per Millett LJ.

70 [2018] VSCA 154.

71 Defamation Act 2005 (VIC) Section 34.

72 See Wilson v. Bauer Media Pty Ltd [2017] VSC 521.

73 Bauer Media Pty Ltd v. Wilson (No. 2) [2018] VSCA 154, [180]–[181].

74 id., at [226].

75 id., at [259].

76 id., at [140]–[149].

77 [2020] FCAFC 115.

78 See Defamation Act 2005 (NSW) Sections 35(2), (2A) and (2B).

79 See Defamation Act 2005 (VIC) Section 35. This provision is and/ or was replicated in the defamation acts of all other states.

80 See Defamation Act 2005 (NSW) Section 35(2).

81 id., Sections 35(2A) and (2B).

82 [2020] NSWDC 526.

83 id., at [43], citing Bauer.

84 id., at [43], citing Wagner v. Nine Network Australia Pty Ltd [2019] QSC 284 at [245], Cosco v. Hutley (No. 2) [2020] NSWSC 893 and KSMC Holdings.

85 id., at [43], citing Brose v. Baluskas [2020] QDC 15, Darwin v. Norman [2020] NSWSC 357, Smith v. Jones [2020] NSWDC 262 and Goldberg v. Voigt [2020] NSWDC 174.

86 [2020] SASCFC 31.

87 [2020] NSWDC 526, at [43], citing Poniatowska v. Channel Seven Sydney Pty Ltd (No. 2) [2020] SASCFC 5.

88 id., at [46], citing KSMC Holdings (t/as Hubba Bubba Childcare on Haig) v. Bowden [2020] NSWCA 28.

89 [2020] NSWSC 896.

90 id., at [56], [57].

91 id., at [58].

92 id., at [60], [62].

93 (2020) 377 ALR 209.

94 Competition and Consumer Act 2010 (Cth) Volume 3, Schedule 2, Section 60.

95 id., Section 61(1).

96 id., Section 61(2).

97 (2020) 377 ALR 209, at [39].

98 id., at [40].

99 Civil Liability Act 2005 (NSW) Part 2, Section 3 definition ('CLA').

100 General rule established in: Hamlin v. Great Northern Railway Co (1856) 1 H & N 408; Exceptions in: Hobbs v. London and South Western Railway Co (1875) LR 10 QB 111 and Bliss v. South East Thames Regional Authority [1987] ICR 700; Endorsed in: Fink v. Fink (1946) 74 CLR 127, 144 and Baltic Shipping Co v. Dillon (n 15) 394.

101 Baltic Shipping Co v. Dillon (1993) 176 CLR 344 (Baltic).

102 id., at 362, 365.

103 (2020) 377 ALR 209 at 13 [43]; citing Baltic (n 15) 363.

104 id., at 14 [46]; citing Teubner v. Humble (1963) 108 CLR 491, 507.

105 id., 12 [41]; citing New South Wales v. Corby (2010) 76 NSWLR 439, 444 [24].

106 Federal Court of Australia Act 1976 (Cth) Section 33V.

107 [2021] FCA 634.

108 id., at [212], [213].

109 See Paterson Constructions Pty Ltd v. Mann [2016] VCAT 2100.

110 See Mann v. Paterson Constructions Pty Ltd [2018] VSC 119 and Mann v. Paterson Constructions Pty Ltd [2018] VSCA 231.

111 For a thorough discussion of the judgment, see David Winterton and Tim Pilkington, 'Mann v Paterson Constructions Pty Ltd: The Intersection of Debt, Damages and Quantum Meruit' (2020) 44 Melbourne University Law Review (forthcoming).

112 [2019] HCA 32 at [19].

113 [2019] HCA 32 at [63].

114 [2019] HCA 32 at [87].

115 [2019] HCA 32 at [176]–[179].

116 [2019] HCA 32 at [90]–[101].

117 [2019] HCA 32 at [205].

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