Problem 1

Duke Silver is a police officer in Bendigo. Duke's child Andy goes to school with Tom. Duke believes that Tom is bullying Andy. While off duty Duke drove to Tom's house and confronted Tom's parent Donna. Duke said to Donna, "Your &^%$# &#**@& of a &#*$^^# son #&#*$& Tom is #@*#& BULLYING my #&*@& son Andy!!!!" Donna said that was nonsense and asked Duke to leave. Duke pushed Donna and tried to hold the door open. Donna slapped Duke in the face and managed to close the door. Duke then pulled out Donna's mailbox out of the ground and smashed it through the glass panel in Donna's door.

Donna is suing Duke for assault and trespass. Donna has been charged with assault by the police, but Duke is not facing any charges.

Anonymous Pty Ltd is the trustee of a "blind trust" run by a local accountant. The accountant has publicly stated for Anonymous P/L that the trust will pay all of Duke's costs and any payments ordered as a result of Donna's lawsuit.

Advise Donna on her damages claim.

Problem 2

Diana is a 70 year old grandmother of thirteen, whose favourite day of the year is tomato day. In protest at Energy Australia's ongoing carbon emissions Diana took part in an elaborate protest. In collaboration with unknown others she was part of the instalment of a device at the corporation's head office. It was a large cage with Diana inside that the activists managed to attach to the office lobby's ceiling. They worked over a long weekend and collaborated with security guards that they had placed in a long-term infiltration plan. The cage device was constructed to kill Diana if it was removed. Due to the lack of plumbing for toilet facilities in the cage the office could not be used.

Energy Australia spent millions in temporarily transferring its entire office to another building while they waited Diana out. After two months Diana ran out of food and left the device. Diana says that she never intended to prevent Energy Australia from working in their office or cause economic harm, but only to bring publicity to climate action. The documents created during the planning stage bear this out. Is it possible that Diana could be sued by Energy Australia for exemplary damages?

Problem 3

Charles was an Aucklander convicted of criminal offences and imprisoned. Upon completion of his offence, he was detained under the Immigration Act pending the making of orders for his deportation. After 6 months in detention Charles was released and the deportation order was rescinded. This was because he had gathered overwhelming evidence that shows he was framed for the criminal charges by a drug cartel. Charles has also established overwhelming evidence that the Home Affairs department knew the unsound basis of the criminal convictions, but that a key Home Affairs employee, who was a member of the cartel, managed to prevent that information being acted on.

Advise whether Charles is likely to be awarded exemplary and/or aggravated damages. Advise Charles on the principles discussed in this week's topic - not Immigration law provisions.

1. Do you think that the availability of exemplary damages for negligence is problematic?
2. Is it difficult to reconcile exemplary damages with private law principles?
3. Should punishment be part of the private or public sphere?
4. Should exemplary damages be abolished?
5. The majority of the High Court in Digital Pulse v Harris held that exemplary damages are unavailable for equitable causes of action. Do you think exemplary damages should be available for some equitable causes of action? Why?
6. It has been stated that aggravated damages are confusing and should be abolished and replaced with damages for loss of pride and dignity as a new head of non pecuniary loss. What is your view?
7. Is it possible to equate an award for aggravated damages with damages for mental distress?