|
|
Home
| Databases
| WorldLII
| Search
| Feedback
University of Technology Sydney Law Research Series |
Last Updated: 10 April 2017
TORTIOUS REMEDIES FOR DELIBERATE WRONGDOING TO VICTIMS OF HUMAN TRAFFICKING AND SLAVERY IN AUSTRALIA.
Pam Stewart*
INTRODUCTION
Human trafficking, the modern day slave trade, is one of the most egregious human rights violations. Sadly, trafficking and slavery are perpetrated in Australia in the Twenty First century. People who are trafficked into forced labour or sexual servitude are deceived, abused physically and psychologically, frequently imprisoned and forced to work long hours with little or no wages, often under the most vile and inhuman conditions.
The true scale of human trafficking and slavery in Australia is not known but
the Australian Federal Police force has established
three Human Trafficking
Teams[1] to investigate and combat
trafficking in Australia and since 2004, the AFP has undertaken over 270
investigations of allegations
of trafficking-related
offences[2]. Victims are trafficked
into Australia, most often from Asian countries, for exploitation in many ways
including sexual servitude,
domestic labour and forced labour in the
construction, hospitality and agriculture
industries[3]. Victims are lured into
the human trafficking trade by deception and coercion. They are highly
vulnerable because of poverty and
their often desperate circumstances in their
countries of origin. Victims are traumatised and suffer physical and
psychological injury,
in many cases lasting a lifetime. Human trafficking,
slavery and servitude are grave violations of human rights which are perpetrated
in Australia, often by Australian citizens. Australia has clear obligations
pursuant to international law to provide assistance and
compensation to
victims.
This article considers what tortious remedies in respect of
deliberate wrongdoing are available to victims of human trafficking and
slavery
in Australia and the difficulties which victims might face in the pursuit of
those remedies. Causes of action in respect
of negligently inflicted harm are
not considered because the conduct of traffickers and exploiters which causes
harm to their victims
is almost invariably deliberate or at the very least
reckless and is therefore best redressed by tortious remedies in respect of
deliberate wrongdoing. The tortious causes of action which would provide
suitable remedies for victims of trafficking and slavery
include the trespass to
person torts of assault, battery and false imprisonment as well as the cause of
action first identified in
Wilkinson v
Downton[4] and the torts of deceit
and conspiracy by unlawful means.
Certainly, tort law offers the prospect
of suitable remedies for victims of trafficking and slavery in these causes of
action but
in such cases there are of course, many obstacles to any claim by a
victim. These obstacles arise from the very nature of the cases
and from the
parlous situations in which victims find themselves: isolated from the
community, distressed, physically and mentally,
having no money or financial
security of any kind, and very fearful of incarceration or deportation because
of their immigration
status, often as unlawful
non-citizens.[5] Further, many victims
of trafficking remain unidentified or do not have access to legal advice and
representation.[6] Other obstacles to
civil suits arise out of the adversarial nature of the civil litigation process,
the complexity and anonymity
of trafficking syndicates, and the apparent lack of
assets of many perpetrators.
Ultimately, there is no doubt that tort law has the capacity to provide a significant remedy for a victim of trafficking or slavery. Nevertheless, the practical advantage of a claim in tort will depend to a great extent on the availability of suitable legal representation and on the determination of the victim to see the litigation process through to a conclusion. The identification of defendants with sufficient assets to meet an award of damages will be crucial.
Not every victim of trafficking or slavery will be in a position to commence and maintain a common law claim, even with the benefit of expert pro bono legal advice. Legal advisers to victims need to be mindful not only of appropriate causes of action in tort and the evidentiary challenges they might face but also the practical difficulties in the prosecution of civil claims by victims. In many cases a common law claim will not be the answer. A victim may be better advised to pursue a claim under one of the Australian states’ victims of crime compensation schemes or pursuant to employment legislation or in the event of a criminal prosecution, an application for an order for reparation pursuant to the Criminal Code Act 1995 (Cth).[7] The establishment of a Federal compensation scheme for victims of federal crimes would be a constructive and valuable measure to provide a certain pathway to compensation for victims of trafficking and slavery. Such a scheme would certainly ensure that Australia meets its international legal obligations to victims and would underscore Australia’s commitment to human rights.
The first part of this article considers what constitutes human trafficking
and slavery and the nature and extent of the problem in
Australia as well as the
Australian legislative response to its international obligations concerning
trafficking and slavery. There
follows a brief overview of available statutory
avenues for compensation for victims. Part II of the paper examines the
advantages
of a claim in tort with discussion of the most appropriate tortious
causes of action in respect of intentional harm to victims as
well as the issue
of damages, in particular exemplary damages. Part III of the paper then
investigates the obstacles and difficulties
which may be encountered by a victim
in bringing and maintaining civil proceedings for a claim in tort.
Before
a detailed consideration of the appropriate tortious remedies, it is useful to
consider the nature and extent of human trafficking
and slavery in Australia and
the legislative framework criminalising these human rights breaches, which has
been enacted in response
to Australia’s international obligations.
I HUMAN TRAFFICKING AND SLAVERY IN
AUSTRALIA
A Human Trafficking Defined
Human trafficking, as defined in the United Nations Protocol to
Prevent, Suppress and Punish Trafficking in Persons, especially Women and
Children (supplementing the United Nations Convention against
Transnational Organized
Crime),[8] consists of
three elements. The first element is the recruitment, transfer, harbouring or
receipt of persons. The second element is
the control of those persons by means
of threats or force or abduction or deception or abuse of power or vulnerability
or the provision
of payments or benefits. The third element is the exploitation
of the victim which includes at a minimum, by prostitution or other
forms of
sexual exploitation or forced labour or other services or slavery (or similar
practices) or the removal of organs. So, movement
of a person, combined with
control by wrongful means and exploitation of that person amounts to human
trafficking.
Persons who are trafficked to Australia are typically
recruited by deceptive means in one of several South East Asian
countries,[9] then transported to
Australia with passports, airline tickets and visas (many obtained fraudulently)
often arranged by agents or
traffickers located off
shore.[10] On arrival in Australia
in custody of local members of the trafficking syndicate (which might be a very
loose association), victims
are required to work without any or adequate
payment, often under threat or in fear for their own safety and well being or
that of
family members in home
countries[11]. Most victims to date
have been women who have been trafficked into the sex industry but increasingly,
victims are men who are trafficked
to work in various industries including
construction, hospitality and
agriculture.[12]
B Victims of Human Trafficking and Slavery in Australia
The true extent of human trafficking and slavery in Australia is not known. There is little reliable data either at international or domestic levels. The 2010 Trafficking in Persons Report, [13] compiled by the U.S. Department of State, marks the 10th anniversary of the United Nations adoption of the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children.[14] The State Department report estimates that there are 12.3 million adults and children in forced labour, bonded labour, and forced prostitution around the world with 56 percent of these victims being women and girls. The report further estimates that the annual trade in people trafficking is worth $US 32 billion.[15]
In Australia between January 2004 and June 2010 the Australian Federal Police conducted more than 270 investigations and assessments of human trafficking related offences leading to 39 cases being referred to the Commonwealth Director of Public Prosecutions. [16] The majority of these cases related to sexual servitude but a number involved labour exploitation[17]. These figures would represent only a proportion of actual cases of human trafficking in Australia which, like other crimes against the person, would doubtless be significantly under-reported. [18] The circumstances of victims of trafficking and slavery make it especially likely that they would be unknown to authorities and very reluctant to report their circumstances themselves. They are generally isolated from the community, most have limited English language and are very often fearful of authorities.
C Australia’s Criminal Law Framework
Whilst slave trading has been a criminal offence in Australia since 1824 when
the Slave Trade Act was enacted by the English
parliament,[19] the Australian
Government recognised the growing problem of contemporary human trafficking in
1999 and in accordance with its international
law
obligations,[20] enacted legislation
to criminalise human trafficking and modern day slavery in Australia.
Human
trafficking (in persons and
children),[21] domestic trafficking
(in persons and children),[22]
slavery,[23] and related offences of
sexual servitude,[24] deceptive
recruiting for sexual services[25]
and debt bondage[26] are all crimes
pursuant to the Criminal Code Act 1995 (Cth). The offence of trafficking
in persons consists of the organisation or facilitation of the entry or receipt,
of a person into
Australia through the use of force or
threats[27] or
deception[28] to obtain the
victim’s compliance. It is an offence to deceive a person about the fact
that, on entering Australia, they will
be required to provide sexual services,
or exploited or subject to debt bondage or that their identity or travel
documents will be
confiscated.[29]
Exploitation is defined to include forced labour, slavery, sexual servitude and
organ removal.[30] Maximum
penalties for these offences range from 7 to 25 years in
prison.[31]
Slavery
is defined by the Criminal Code Act, s 270.1 as “the condition of a
person over whom any or all of the powers attaching to the right of ownership
are exercised,
including where such a condition results from a debt or contract
made by the person.” This provision was considered and interpreted
by the
High Court of Australia in 2008 in the case of The Queen v
Tang[32]. Wei Tang had been
convicted of a slavery offence because she required 5 Thai women to work in her
brothel without payment until they
had each repaid a very substantial
“debt”, effectively being the costs of having them trafficked to
Australia. The High
Court identified various powers attaching to the right of
“ownership”. Those were the power to use a person’s labour
in
an unrestricted manner; to buy and sell a person; to control and restrict a
person’s movement; and entitlement to a person’s
labour without
payment commensurate with the value of the
labour.[33] The court concluded that
the nature and extent of the powers exercised by the defendant in the
Tang case did amount to
slavery.[34] The court referred to
the
“commodification”[35] of
the victims in that case and the “exercise of powers of control over their
movement which extend(ed) well beyond ...the
most exploitative of employment
circumstances, as well as the absence or extreme inadequacy of payment for
services”.[36] The High
Court’s interpretation of the slavery provisions in the Criminal Code
Act 1995 (Cth) is relatively broad and flexible as it allows a consideration
of the totality of the powers of ownership exercised over
a victim without the
requirement of any single or prescribed set of universal identifiers of
enslavement.[37]
D Australia’s International Obligations
The Australian criminal legislation concerning human trafficking and
slavery is the direct response to the Australian government’s
international obligations pursuant to the United Nations Protocol to Prevent,
Suppress and Punish Trafficking in Persons Especially Women and Children
Supplementing the Convention
on Transnational Crime 2000 (the
Trafficking Protocol)[38] and
other U.N conventions including the International Convention to Suppress the
Slave Trade and Slavery 1926, [39]
the Supplementary Convention on the Abolition of Slavery, the Slave Trade
and Institutions and Practices Similar to Slavery 1956,
[40] the
Universal Declaration of Human
Rights[41] and the
International Covenant on Civil and Political
Rights[42]. All these prohibit
slavery and servitude. Australia also has obligations pursuant to the ILO
Convention No. 29 on Forced and Compulsory Labour.
[43]
Pursuant to these international human rights treaties, Australia has an obligation to ensure effective remedies for victims of human trafficking and slavery in order to compensate them for harm suffered as a result of their experiences.[44] The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power states that victims of crime have the right to timely redress for harm suffered.[45] The Trafficking Protocol itself requires states to ensure that their domestic legal systems offer victims the possibility of obtaining compensation[46] but does not stipulate how compensation is to be provided or from what source. The United Nations Office of Drugs and Crime[47] has suggested that various types of recovery action might meet the requirements of the Trafficking Protocol. These include enabling victims to sue under statute or common law for civil damages; allowing criminal courts to make orders for restitution and establishing victims’ compensation schemes funded by the state.[48]
E Statutory Compensation Options for Trafficking or
Slavery Victims in Australia
Recourse to compensation by victims of human trafficking and slavery in
Australia to date has been relatively
rare.[49] This is because the
Australian government’s response to its international obligations has been
focused on prevention, detection,
investigation and criminal prosecution of
perpetrators.[50] Whilst the
Australian government has instigated and financed a support program for
victims,[51] the issue of
compensation has not been at the forefront of its efforts.
In Australia,
there is no government funded national scheme of compensation for victims of
crime at the federal level and none is
proposed, though it has been suggested
from various quarters.[52] Any claim
for compensation against a victim of crime compensation scheme must be made
pursuant to one of the numerous state or territory
schemes.[53] In NSW and Victoria
there have been to date, only two cases of trafficking victims making successful
claims under the statutory criminal
victims’ compensation
scheme,[54] though there are several
cases which have now been commenced in those states and are awaiting
resolution.[55] Such claims by
trafficking victims against state criminal injuries compensation schemes will no
doubt become more numerous in the
future, at least in cases which can be brought
within the state statutory parameters. Given that the crimes of human
trafficking
and slavery are such gross violations of human rights committed
within Australia, a federal compensation scheme making specific provision
for
victims would be desirable and in compliance with Australia’s
international obligations to
victims.[56] Funding for such a
scheme might be sourced at least in part, from proceeds of crime funds
confiscated by the Commonwealth pursuant
to the Proceeds of Crime Act
2002 (Cth) which establishes a scheme to trace, restrain and confiscate
proceeds of Commonwealth crime. These funds have been used to
finance various
projects to assist victims of
crime,[57] but the Act does not at
present allow for confiscated proceeds of crime to be used to compensate
victims.
Pursuant to s. 21B Crimes Act 1914 (Cth) if a person is
convicted of a federal offence the court may in addition to any penalty imposed
on the offender, order that
the offender make reparation to any person in
respect of any loss suffered as a direct result of the offence. The order for
reparation
is to be treated as a final judgment of the court and is enforceable
accordingly. To date no such order has been made in relation
to a trafficking or
slavery offence.[58] The power to
order reparation is discretionary and as the Court may take into account the
defendant’s financial
situation,[59] an order may not
reflect the victim’s actual loss. Further, s. 21B does not explicitly
provide for reparation orders to include non-economic loss such as pain and
suffering or loss of amenity of life
though it has been suggested that there is
an implicit inclusion of such injury in the term “loss
suffered”.[60] The Australian
Attorney General has recently called for submissions in response to a discussion
paper which addresses, amongst other
issues, the question of whether s.21B of
the Crimes Act 1914 (Cth) adequately provides for reparation orders to be
made for victims of people
trafficking.[61]
There is
scope within the Australian industrial legislation, the Fair Work Act
2009 (Cth)[62] for victims of labour
exploitation to recover unpaid wages from a perpetrator, notwithstanding that
their immigration status may
be irregular. The Office of the Fair Work Ombudsman
undertakes investigations and assists workers to recover unpaid
entitlements.[63] The Fair Work
Ombudsman undertook more than 800 such investigations involving foreign workers
(some of whom would certainly have
been trafficking victims, though there is no
statistic) in 2009/10. More than $500,000 in unpaid entitlements was recovered
and
repaid.[64] In addition, there
has been at least one successful prosecution by Fair Work Australia in a case of
extreme labour exploitation
in circumstances where a trafficking or slavery
conviction was not able to be obtained at criminal
law.[65]
In addition to
these statutory avenues of compensation, a victim will have a remedy under the
common law of tort, which in appropriate
cases will have some significant
advantages over those other remedies.
II TORTIOUS REMEDIES FOR VICTIMS OF TRAFFICKING AND SLAVERY
IN AUSTRALIA
A Advantages of a Claim in
Tort
There is no doubt that a trafficking or slavery victim will face some
significant hurdles to a claim in tort. These arise by virtue
of the very nature
of a common law claim in the adversarial system which will almost inevitably
lead to cross- examination of the
victim who. In many cases victims will wish to
avoid the discomfort of a civil trial involving facing their traffickers and
perhaps
even re-traumatisation.[66]
A plaintiff needs to be steeled to see the often lengthy civil litigation
process through to a conclusion. Other procedural and practical
obstacles to a
claim in tort are discussed in Part III below.
Yet, there are distinct
advantages of a claim in tort. Tort law offers a remedy in damages which are
significant and which have an
incalculable vindicating effect for the individual
plaintiff[67]. Tortious damages
offer the possibility of an award which would be significantly larger than the
maximum sums available pursuant
to statutory compensation
schemes.[68] Tort law provides
justice for a victim and punishment at least financially, of a perpetrator,
especially in cases where no criminal
prosecution has been brought by federal
police or where it may have been unsuccessful because of evidentiary or other
difficulties.
The possibility of an award of aggravated or exemplary damages
against a defendant provides not only vindication and retribution
but also must
have some deterrent effect.[69]
Additionally, an apology might be considered. Whilst the common law
courts do not have the power to order an apology, one might be
given on
settlement of a claim. There is growing recognition of the value of an apology
in civil proceedings especially where the
plaintiff has suffered injury to
dignity and violation of human
rights.[70] At common law,
admissions of regret or apologies will not necessarily constitute admissions of
liability.[71] Parliaments
clearly acknowledge the worth of an apology as one in a suite of remedies
available in various kinds of civil
proceedings[72] and in most
Australian jurisdictions an apology in a negligence claim will not be admissible
as an admission of liability. [73]
The law of tort has shown itself to be particularly adept at evolving to
accommodate changing social demands and emerging notions
of justice. Indeed
McHugh J has lauded the “genius of the common law” whereby
“principles are modified and expanded
by the pressure of changing social
conditions and the experience of their practical application in the life of the
community”.[74] The tortious
causes of action discussed below would in the main, accommodate a claim by a
victim of trafficking or slavery without
the need for extension of existing
common law principles. In a case where some extension or modification of
existing law would be
warranted to do justice to a claim, the common law
certainly has that capacity.
To date there have been no reported cases of
trafficked persons successfully seeking tortious damages at common law in
Australia,
though there have now been isolated successful cases in
England.[75]
There are
several tortious causes of action at common law which would be available to
victims of trafficking and slavery in Australia,
depending on the circumstances
of their cases. Clearly in many cases, victims will have been subjected to
physical threats and abuse
which would give rise to claims in tort for assault
and battery and of course, in many instances victims will have been falsely
imprisoned.
Other tortious causes of action which might be considered are the
action on the case in Wilkinson v
Downton[76] in respect of
psychiatric injury and the torts of deceit and conspiracy by unlawful means.
These various causes of action would allow
recovery of damages for personal
injury where appropriate as well as financial losses and property damage. In
some instances aggravated
and exemplary damages may be available especially
given that human trafficking and slavery and are such gross violations of human
rights.
The following part of this article considers the most
appropriate tortious common law actions which would be available to victims
of
trafficking and slavery in Australia and the types of damages which might be
recoverable.
B Trespass to Person – Assault and
Battery
In many trafficking and slavery cases victims would have actionable tort
claims against the perpetrators in trespass to person for
assault or battery
(which in many cases will be sexual battery). There have been criminal and
employment law prosecutions in Australian
trafficking cases where proven facts
clearly demonstrate the elements of the torts of battery or
assault.[77] The victims could have
succeeded in civil claims in tort had they had the opportunity and means to
commence and maintain proceedings.
Of course, such tortious claims are only
practically worthwhile in cases where the defendants have the means to satisfy
any award
of damages, though in several of the cases mentioned above the
defendants clearly had businesses or assets which should have been
available to
satisfy a judgment.[78]
To
succeed in a claim for battery a plaintiff need simply prove an intentional act
by the defendant which directly causes a contact
with the plaintiff’s
body.[79] In the Queensland case of
R v Kovacs where the defendant husband and wife were convicted (at a
re-trial following a successful
appeal[80]) in 2010 of using and
possessing a slave,[81] the victim
was a woman who had been brought to Australia by the defendants by way of a sham
marriage. She was required to work at
the defendants’ home and in their
business without payment, being effectively imprisoned. The original trial court
had heard
evidence that the male defendant had repeatedly sexually assaulted the
victim.[82] Clearly a claim at
common law in battery would be maintainable by the victim as would a claim in
false imprisonment.
A tortious assault is constituted by an intentional
act by a defendant which directly causes an apprehension of imminent physical
contact by the plaintiff. [83] A
victim of slavery and trafficking will often have been subjected to threatening
conduct or words which would amount to tortious
assaults. The case of R v
McIvor & Tanuchit[84]
provides a useful example. There, the defendants were convicted of
possessing and using slaves. They had brought 5 Thai women to Australia, with
the assistance of an
agent in Thailand. The women were required to work in
brothels to pay off “debts” of between AUD$35,000 and $45,000.
The
sentencing judgment records that the victims were kept in confinement at the
defendants’ premises or at the brothels at
which they worked. Some victims
were subjected to humiliating and degrading treatment by the defendants and were
subjected to threats
that they, or their families in Thailand, would be harmed
if they escaped.[85] Claims in tort
for false imprisonment (discussed below) and assault and battery would be
appropriate in these cases.
The plaintiff in an assault claim must
establish that the defendant’s threat caused a reasonable apprehension of
imminent physical
contact.[86] For
the victims in the McIvor & Tanuchit case, and for others in similar
situations, this issue is one which must be carefully addressed. The threats in
the McIvor & Tanuchit case do not seem to have been couched in
‘immediate’ terms. Rather the threat is of unspecified danger or ill
treatment
of the victim at some uncertain point in the future. There is however
Australian authority to the effect that a threat which will
be carried out at
some unknown future time may nevertheless be a threat of imminent contact where
the plaintiff has no way of knowing
how closely in time or where the threat
might be carried out.[87] In
Zanker v Vartzokas, White J opined that there would be an assault
where:
“fear was a continuing fear induced by (the) original words in a situation where (the defendant) remained in a position of dominance and in a position to carry out the threatened violence at some time not too remote, thus keeping the apprehension, the gist of the assault, ever present in the victims mind.” [88]
This characterisation of the nature and effect of the threat required to
ground an assault claim, is a useful one in a trafficking
or slavery case.
There, the threat once made, or repeated intermittently, has a continuing effect
on the victim who remains in fear
of personal injury, in the event of an attempt
to leave the defendant’s premises or general control.
The threats
made in these situations are usually conditional in the sense that the victim is
told that the threat will be carried
out if she runs away or tells anyone of the
exploitative situation, the inference being that if the plaintiff is compliant
there
is no likelihood of injury. There is ample authority to the effect that
conditional threats are nevertheless capable of being
assaults.[89]
C False Imprisonment
To succeed in an action in the tort of false imprisonment a plaintiff must prove total deprivation of liberty directly brought about by intentional actions of the defendant.[90] Because it is one of the trespass to person torts (like assault and battery), false imprisonment is actionable without proof of any actual damage.[91] This aspect distinguishes the trespass torts from the actions on the case discussed below or negligence which require proof of damage as an element of the torts. The tort of false imprisonment will provide a remedy for most victims of trafficking or slavery because some degree of restriction of freedom of movement is almost universally imposed on victims by traffickers or those who enslave.[92] Where the degree of restriction of movement can be shown to be total, the victim will have a remedy in the tort of false imprisonment.
Some victims of human trafficking and slavery may be literally imprisoned
and kept under lock and key for varying periods of time
by those who traffic or
exploit them. But many victims may be less obviously held captive by those who
exploit them who may use more
subtle means of control. The victim is however,
arguably, no less incarcerated. The modern tort of false
imprisonment[93] should provide a
remedy in these situations where the imprisonment is not physical but
psychological. In such cases the victim succumbs
entirely to the power and
authority of the exploiter by virtue of fear of apprehension by authorities or
of deportation or of some
unspecified consequences that might befall the victim
or family members in a country of
origin.[94]
In the case of
The Queen v Tang[95]the High
Court referred to the findings of fact of the trial judge as to the
circumstances in which the 5 female victims of Wei Tang
were confined to the
premises of the defendant:
[T]he complainants' passports and return airfares were retained by the
respondent. This was done so that the passports could be produced
to immigration
authorities if necessary, and also so that the complainants could not run away.
The complainants lived in premises
arranged by the respondent, where they were
lodged and fed, and their medical requirements attended to. The evidence was
that the
complainants were well-provisioned, fed, and provided for. The
complainants were not kept under lock and key. Nevertheless, the trial
judge
said that, in the totality of the circumstances, the complainants were
effectively restricted to the premises. On rare occasions
they ventured out with
consent or under supervision. The circumstances to which the trial judge
referred included the hours of work
involved, as well as control by way of fear
of detection from immigration authorities, fear of visa offences, advice to be
aware
of immigration authorities, advice to tell false stories to immigration
authorities if apprehended, and instructions not to leave
their accommodation
without the respondent, DS or the manager of the
brothel.[96]
It is submitted
that these circumstances would constitute the tort of false imprisonment. In
McFadzean v Construction, Forestry, Mining & Energy Union the
Victorian Supreme Court of Appeal observed that:
[A]lthough the idea of false imprisonment is sometimes expressed in terms of
a restriction on liberty which must be total that does
not mean that a
restriction short of lock and key may not be actionable. In each case, it is a
question of fact as to whether a restriction
is so severe as to be characterised
as false
imprisonment.[97]
There is
significant authority to support the assertion that where, in the absence of any
physical restriction on movement, a person
wholly submits to the authority and
control of another, that will amount to
imprisonment.[98] In Watson v
Marshall and Cade for example, the High Court exercising original
jurisdiction, found:
(T)hat the plaintiff had a justified apprehension that, if he did not
submit to do what was asked of him, he would be compelled by
force to go (with
the defendant).... Therefore a restraint was imposed upon the plaintiff which
amounted to an "imprisonment" of
him by the defendant.
[99]
Similarly, in Symes v
Mahon,[100] Murray CJ
of South Australia held:
“where there has been no application of physical force to the person alleging imprisonment, there must be evidence of complete submission by him to the control of the other party”.[101]
This aspect of the tort of false imprisonment was dealt with at some length by the Victorian Supreme Court of Appeal in McFadzean v Construction, Forestry, Mining & Energy Union.[102] This was a case concerned with the question of whether a group of ‘anti-logging’ protesters were imprisoned in a forest by the intimidating actions of a group of ‘pro-logging’ workers. Ultimately, the Court held that the plaintiffs had not been falsely imprisoned because they had a reasonable means of egress by a physically difficult but in the circumstances, not unreasonable, walk out of the forest. Importantly the Court held that the Plaintiffs had remained in the forest not primarily because of the defendants’ actions but rather because the plaintiffs had their own reasons for remaining at the site, independent of the defendants’ conduct. The Court held (omitting references) that:
[I]t remains that the essence of the action of false imprisonment is the compelling of a person to stay at a particular place against his or her will. Accordingly, where a plaintiff has full knowledge and comprehension of the defendant’s coercive conduct amounting to total restraint, the action depends upon proof that, were it not for the defendant’s conduct, the plaintiff would not have submitted to the restraint. Consequently, it is not sufficient in law that conduct of the defendant has contributed to or influenced the plaintiff’s decision to remain unless the conduct has overborne the plaintiff’s will. It must be shown that, but for the defendant’s conduct, the plaintiff would not have yielded to the total restraint; that the plaintiffs’ determination to remain was a coercive consequence of the defendant’s acts.[103]
This analysis is especially relevant to the case of a victim of trafficking
or slavery who is not physically imprisoned but who remains
in the custody of
traffickers or exploiters because of fear of apprehension by authorities or of
unspecified repercussions for overseas
family or simply because she or he has
been made to feel overwhelmingly alienated and isolated from the outside world.
It is submitted
that all these reasons are the result of the conduct of the
trafficker: that the victim remains as a “coercive consequence”
of
the trafficker’s actions. The victim of trafficking has no truly
independent personal reason for remaining in the custody
of a trafficker.
Accordingly, the tort of false imprisonment should provide a
remedy.
Returning to the description of the plight of the victims in the
Wei Tang case[104]
discussed above, and the finding of the trial judge that “in the totality
of the circumstances, the complainants were effectively
restricted to the
premises”,[105] it is clear
that the plaintiffs could prove the elements of the tort of false imprisonment.
They would need to identify and prove
the specific actions of the defendant
trafficker or her agent, being threats or words or actions, which directly
resulted in the
plaintiffs’ total submission to the will of the defendant.
For Wei Tang’s victims, those actions would be the withholding
of
passports and air fares and identification and personal documents; control by
way of fear of detection from immigration authorities;
fear of visa offences;
instructions not to leave the premises without a representative of the
defendant; and constant supervision.
The plaintiffs would be able to demonstrate
that their restriction to the premises was a direct “coercive
consequence”
of the defendants’ actions, in the sense that they had
no reason to remain other than their complete submission to the will
of the
defendant, brought about entirely by the actions of the defendant. It is notable
here that the Court in McFadzean v CMFEU made the following observation
(omitting references):
It is important to keep in view the ultimate concern of the tort of false
imprisonment, namely, protection against the unlawful total
restraint on the
liberty and freedom of movement of the plaintiff. In the end, it is a matter of
degree in all the prevailing circumstances.
[106]
For a victim of
trafficking or slavery, the argument is simply that in all the prevailing
circumstances, the degree of control exercised
by the trafficker or enslaver
amounts to imprisonment: a deliberate and direct total deprivation of the
liberty of the victim. Interestingly,
there are instances in the U.S.A. where
the courts have taken a fairly broad approach on the question of what will
constitute imprisonment
in a trafficking
context.[107] In one case it was
held that a plaintiff had properly pleaded a claim in false imprisonment where
for a period she had even had a
key to the premises in which she lived whilst
her traffickers were out of the country. It was held that the defendants’
threats
of arrest and prosecution and the plaintiff’s fear of the
defendants, effectively imprisoned her during that
time.[108] Arguably this
interpretation would be acceptable in Australia as within the parameters
suggested in the McFadzean case.
D Action on the Case for Intentional Infliction of
Psychiatric Injury
The cause of action in Wilkinson v
Downton[109] is uniquely
suited to provide a remedy for victims of trafficking and slavery in
circumstances where a defendant has used threatening
and intimidating behaviour
and words toward the victim. This conduct may fall short of actual assault or
battery but may cause the
victim psychiatric injury, often in the form of post
traumatic stress disorder. Conduct of a defendant such as veiled threats of
injury or disadvantage to members of the victim’s family or as to the kind
of treatment a victim might experience at the hands
of immigration or police
authorities, may not necessarily amount to the tort of assault but are clearly
calculated to frighten and
intimidate the victim and would have the obvious
capacity to cause mental harm to a victim. Such behaviour would come squarely
with
the scope of liability under Wilkinson v Downton and would satisfy
the elements of the action. Damages recoverable would include compensatory
damages and, in appropriate cases aggravated
and exemplary damages.
[110]
In Wilkinson v Downton, the Defendant falsely represented to the plaintiff, that her husband had been involved in a serious accident. This was meant to be a practical joke. As a result of this statement the plaintiff suffered what was then termed ‘nervous shock’. Despite finding there was no precedent for this action, Wright J held that damages should be awarded on the ground that:
The defendant has... wilfully done an act calculated to cause physical harm to the plaintiff...and has in fact caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. [111]
So there are three elements to the cause of action namely, a wilful act by
the defendant which is calculated to cause harm, and which
does in fact cause
harm to the plaintiff, the harm being a psychiatric injury.
The cause of
action in Wilkinson v Downton has been used in recent years in Australia
in a variety of situations to provide remedies to plaintiffs who have suffered
psychiatric
injury as a result of threatening or confronting behaviour or words
by a defendant. These situations have included a claim for workplace
humiliation
and harassment[112] and a claim by
protesters following intimidating behaviour and threatening conduct by
defendants, causing post traumatic stress
disorder.[113]
The notion
of ‘calculation’ to cause harm on the part of the defendant has been
problematic: what is the nature of the
defendant’s intent required to
ground a claim and how objectively is it to be determined? Wilkinson v
Downton suggests that once the level of likelihood of harm is recognisable
in relation to an act, that act is ‘calculated’, on
an objective
view, to cause the harm and therefore intention can be imputed to the defendant.
It is this notion of ‘calculation’
with its imputed intention to
cause harm that distinguishes this tort from negligent acts resulting in
physical harm through mental
distress. In Carrier v
Bonham,[114] a majority of
the Queensland Court of Appeal held that the concept of an act 'calculated to
cause harm' enunciated in Wilkinson v Downton imported a purely objective
test which meant that the deluded mental state of the particular defendant in
that case was irrelevant.
In Wong v Parkside Health NHS Trust
[115] the English Court of Appeal
held that conduct ‘calculated’ to cause harm would need to be such
that the harm is ‘likely
to
result’.[116] In the NSW
Court of Appeal, in Nationwide News Pty Ltd v Naidu and Anor; Iss Security
Pty Ltd v Naidu and Anor [117]
Spigelman CJ held that ‘calculated’ means more than
‘reasonably foreseeable’ though it may not have to constitute
a
“substantial
certainty”.[118] Spigelman
CJ held in that case that the defendant’s acts amounted to “a
reckless indifference to result” so that
they were clearly
‘calculated’ to cause harm. His Honour referred to “the nature
and scale of (the defendant’s)...conduct
(which) was such... as to
constitute a recognised psychiatric injury as a natural and probable consequence
of that course of
conduct”.[119] It is hard to
imagine a situation of trafficking or slavery where the actions or threats of a
defendant would not meet this
threshold[120].
Unlike the
position in the US,[121] in
Australia and other common law countries, the courts have not been prepared to
allow recovery for mental distress without actual
injury (which may be a
psychiatric injury). The reason for this refusal is undoubtedly the fact that
the cause of action in Wilkinson v Downton is an action on the case and
therefore actual damage is the gist of the action. This issue has been
considered by both English[122]
and Australian[123] courts in
recent years and in both jurisdictions the courts have firmly held that a
plaintiff cannot recover under the cause of action
in Wilkinson v Downton
unless he or she has suffered actual damage: in cases of mental harm, that must
be a recognised psychiatric illness.
The High Court of Australia briefly
referred to the action in Wilkinson v Downton, obiter, in Magill v
Magill, where Gummow, Kirby and Crennan JJ stated that:
“developments in Anglo-Australian law recognise these cases as early
examples of recovery for nervous shock, by reference to
an imputed intention to
cause physical harm, a cause of action later subsumed under the unintentional
tort of negligence.”[124]
So, there may be some doubt about the long term survival of the cause of
action in Wilkinson v Downton, at least where the intention of the
defendant to cause harm is something less than a deliberate attempt to harm the
plaintiff. In
such a case a suit in negligence may be a preferred action. But
where a defendant’s act is a deliberate attempt to harm the
plaintiff
psychologically, then the Wilkinson v Downton cause of action provides a
particularly apposite and useful
remedy[125]. Chief Justice
Spigelman in the NSW Court of Appeal acknowledged the comments of Gleeson CJ in
Magill v Magill but nevertheless held “that the Court of Appeal
should follow the acceptance by the High Court of the authority of Wilkinson
v Downton in Bunyan v Jordan and in the joint judgment in Northern
Territory v
Mengel”.[126]
The
cause of action on the case for the intentional infliction of psychiatric injury
first recognised by the common law in Wilkinson v Downton,
[127] would therefore provide a
remedy in cases of human trafficking or slavery where the actions of a defendant
could be shown to have
been deliberately carried out with the intention of
causing harm to the victim who has suffered a diagnosed psychiatric injury. In
most instances of trafficking and slavery, victims have been coerced into
service by the use of threats of various kinds: of physical
force to themselves
or of harm to their families in a home country or of apprehension by immigration
or other authorities, or of
imprisonment or deportation. Those threats would, on
any objective view, demonstrate an imputed intention to harm the
victims.
E The Tort of Deceit
Victims of trafficking and slavery are induced to cross national
boarders or to travel with a trafficker to a place where they are
to be
exploited, by deception as to job prospects or the nature and conditions of the
anticipated employment or the financial rewards
available at the destination.
Further deceptions about the dire consequences of leaving employment or the
existence of a large debt
are usually employed by those who subsequently enslave
or exploit victims. The tort of
deceit[128] will offer a remedy in
many of these circumstances and would enable recovery of economic loss as well
as compensatory damages for
personal injury and property damage and even
aggravated and exemplary[129]
damages.
In order to succeed in a claim for deceit a plaintiff will
have to establish that the defendant knowingly or recklessly made a false
representation of fact, by words or conduct, intending to induce the plaintiff
to act on the representation and that the plaintiff
did so act, thereby
suffering actual damage,[130]
which may be purely financial or physical or psychiatric. The tort of deceit
was developed largely to protect commercial and property
interests of
plaintiffs[131] and has now been
somewhat dormant in this arena since the advent of trade
practices[132] and consumer
protection legislation[133] which
provide remedies for the kinds of claims that would previously have found a
remedy in deceit. Nevertheless the tort of deceit
remains a useful cause of
action and is certainly one which would offer a remedy to victims of trafficking
and slavery in appropriate
cases.
The most recent High Court
consideration of the tort of deceit was in 2006 in the case of Magill v
Magill.[134] The case was a
novel claim in deceit in a family law context where the tort has apparently not
been relied upon in the past in
Australia.[135] The High Court
dismissed the appeal by a man who had claimed that his former wife's deceit as
to the paternity of two children born
during their marriage, was actionable to
enable him to recover damages, being the child support that he had paid in
respect of the
children as well as a pain and suffering resulting from a
depressive illness. The High Court considered that on the evidence adduced,
all
the elements of the tort had not been made out and further that significant
social policy considerations mitigated against
allowing such a claim in a
marital context, particularly given the ‘no fault’ premise upon
which the Family Law Act 1975 (Cth) is based.
The Magill
decision is instructive on the usefulness of the cause of action in deceit
in that the High Court confirmed that the tort would be
available as a remedy in
many situations outside the commercial sphere in which the tort originally
operated, including even possibly
in some domestic circumstances, thought the
Court left that question open.
[136] Further, the court addressed the
elements of the cause of action and emphasised the necessity for the plaintiff
to be able to isolate
and prove one or more discrete deliberate
misrepresentations made by the defendant upon which the plaintiff actually
relied. [137] The plaintiff bears
the onus of proving that the representations relied upon were material and that
the plaintiff was induced to
rely upon
them.[138]
In a
trafficking case this means that the plaintiff will have to adduce evidence of
the promises made or lies told by the defendant
and of the fact that the
plaintiff specifically relied on those promises or lies, not other information,
to his or her detriment.
In many cases of trafficking or slavery, the only
evidence of these matters will be the plaintiff's own testimony, without the
benefit
of corroboration. In addition to establishing the fact of the
representations and the plaintiff's reliance on them, the plaintiff
will also
have to establish a causal connection between the plaintiff's damage and the
false representations made by the defendant.
A difficulty on this aspect is
demonstrated by Magill, where the High Court failed to find a sufficient
connection between the false misrepresentation made in that case and the
plaintiff's
depressive illness, which was caused by other additional
circumstances. In trafficking and slavery cases there will usually be many
circumstances which have contributed to a plaintiff's loss, particularly where
the damage includes a psychiatric injury which medical
evidence may attribute
to several causes or events which may have been ongoing for a significant period
of time. These may be obstacles
to a claim in deceit.
Success in a claim
for deceit will require that the evidence allow for an inference that the
plaintiff's damage flowed directly from
the plaintiff's reliance on the
defendant’s false
misrepresentation.[139] There is
some uncertainty in Australian law as to the test for remoteness of damage in
the tort of deceit: whether there is an element
of reasonable foreseeability or
whether the plaintiff’s loss must simply be the direct result of the
defendant’s misrepresentation.
The High Court in Gates v City Mutual
Life Assurance Society
Ltd[140] held that a
plaintiff’s damages in a claim for deceit would extend to “all the
consequential loss directly flowing from
his reliance on the representation, at
least if the loss is foreseeable”. However in Palmer Bruyn &
Parker Pty Ltd v Parsons,[141]
Gummow J took the view that the notion of reasonable foreseeability was not
relevant to the issue of damage in such a
case.[142]
The remedies
available in a deceit claim extend to damages for economic loss as well as
damages for personal injury and property
damage.[143] Damages for pecuniary
loss have been the common pursuit in claims in deceit as the tort has
historically been used in commercial
contexts. A victim of trafficking might be
well advised to rely on the tort of deceit, where the elements of the tort can
be satisfied,
in order to recover damages for the pecuniary losses incurred as a
result of the unpaid work by the plaintiff, particularly in situations
of sexual
servitude where the plaintiff could arguably seek to recover not only "wages"
unpaid but all moneys including "profit",
generated as a direct result of the
false representation on which the plaintiff relied. The argument would be that
these moneys were
"lost" by the plaintiff as a direct result of reliance on the
defendant. In deceit cases where a plaintiff has been induced to purchase
a
business because its value has been misrepresented, the measure of damage has
been the difference between the actual value of the
business and the price the
plaintiff paid.[144] Arguably,
the ‘actual value’ of the plaintiffs loss in cases of sexual
servitude or extreme labour exploitation would
include the whole value of the
plaintiff’s work, that is the ‘profit’ generated, not simply
the wages lost.
There may in some instances be an overlap between the
torts of deceit and the action in Wilkinson v Downton where a
defendant’s false misrepresentations are a cause of a plaintiff’s
psychiatric injury and where the defendant’s
conduct can be shown to have
been calculated to cause the psychiatric injury. The same conduct may also
ground an action in deceit
where the defendant’s conduct can be shown to
have been intended to induce the plaintiff to act in a particular way to his
or
her detriment.
F Unlawful Means Conspiracy
The tort of conspiracy by unlawful means is an action on the case which
was developed to provide a civil remedy to a person who is
harmed as the result
of a conspiracy of two or more persons which involves the commission of an
unlawful act, where the conspirators
intend to harm the plaintiff’s trade
business or other economic
interests,[145] though that need
not be the dominant purpose of the
conspiracy.[146] The cause of
action is one of the so called "economic
torts”[147] and was
developed in the sphere of industrial
law[148] and competition
law[149] to provide a remedy for
victims of unlawful acts intended to damage a business or some commercial
interest.[150] But the tort has
been developing in recent years to provide a remedy in other situations (for
example to enforce a debt[151]).
Examining the elements of the cause of action of unlawful means
conspiracy, it can be concluded that it would provide a remedy for
victims of
trafficking in cases where more than one person had been involved in the
trafficking and exploitation of the victim by
way of criminal or tortious acts.
The typical trafficking case will involve more than one perpetrator acting
together to recruit
the victim, to obtain travel documents and visas and to
transport the victim to a place of exploitation. Where this process involves
‘unlawful acts’ such as breaches of the criminal law or of
immigration laws, or tortious acts including for example,
trespass to the person
of the plaintiff or his or her property, the requisite elements of the
conspiracy tort can be
established[152]. The intention of
the conspirators in such cases is clearly to harm the plaintiff in his or her
business or commercial interests,
given that the plaintiff is being trafficked
to work without any or at least, proper payment. Further the plaintiff suffers
actual
pecuniary loss in the form of the wages or other money he or she should
have been paid and was no doubt promised.
The type of unlawful act
required to satisfy the elements of the unlawful means conspiracy tort has been
the subject of some debate,[153]
though it now appears settled that the act may be a criminal act and even a
tort.[154] Members of a
trafficking syndicate will have committed at least one of the trafficking
related offences in the Criminal Code Act 1995 (Cth). Further, in
trafficking cases there will often be visa applications containing false
statements or in false names or
relying upon other falsified immigration
documents. The use of such documents would constitute offences under the
Australian immigration
legislation[155] and those
offences would arguably be sufficient to satisfy the requirements of the tort of
unlawful means conspiracy.[156]
Difficulties would arise where the victim/plaintiff has also been complicit in
any immigration fraud, as is sometimes the situation
in trafficking cases, where
the victim has been schooled in what false information to give to immigration
authorities.[157] Though, in such
cases there would no doubt be some element of coercion by way of fear of
consequences of failure to cooperate, on
the victim’s part.
In the
recent House of Lords decision in Revenue & Customs Commissioners v Total
Network SL[158] it was held
that even though the criminal conduct of the defendants was not independently
actionable it was sufficient to ground
the tort of
conspiracy.[159] The plaintiff
must prove however that the defendants knew that their actions were unlawful and
that the unlawful acts would cause
loss to the
plaintiff.[160]
This cause
of action would enable a plaintiff to sue those members of a trafficking
syndicate who may have had no personal contact
with the plaintiff, provided they
can be identified and joined to the proceedings and provided they can be shown
to have been aware
of and part of the conspiracy. Such an action may give a
plaintiff legal access to the individuals at the top of the trafficking
hierarchy and those making the real profit from the
enterprise[161].
There is
High Court authority to the effect that where conspirators act in concert to
injure the plaintiff by way of the commission
of the same tort that will suffice
as the unlawful act on which to base a pleading of conspiracy.
[162] Of course, they would also
be joint tortfeasors, where they have acted in concert, and could be sued as
such in tort.[163] Where either
action would be possible, it is doubtful that there would be any advantage in
suing in the tort of conspiracy rather
than in suing joint
tortfeasors.[164] The measure of
damages would be the same. The damages available will include actual pecuniary
loss as well as loss of earning capacity
and in appropriate cases aggravated and
exemplary damages.[165]
G Tort Reform Legislation in Australian Jurisdictions and Intentional Acts by Defendants
A distinct advantage to a victim of slavery or trafficking who is
considering a tortious cause of action is the availability of aggravated
and
exemplary damages. Whilst tort reform
legislation[166] in various
Australian jurisdictions prohibits the award of such damages in claims in
respect of negligently caused harm, there is
no such prohibition with regard to
claims for deliberate harm,[167]
except in the Northern Territory where no exemplary or aggravated damages may be
awarded for personal injury.[168]
In the early part of the 21st century following a so called
‘insurance
crisis’[169] and much public
discussion and criticism of the costs associated with tortious recovery by
accident victims together with a perception
about the capricious nature of
tortious liability, all Australian jurisdictions enacted some reform of the
common law,[170] though the
legislative response was by no means
uniform.[171] These reforms were
chiefly concerned with aspects of the common law tort of negligence and imposed
severe limitations on personal
injury damages recoverable. The reforms across
Australian jurisdictions excluded certain causes of action from the reform
legislation[172] and in NSW the
exclusions included those where liability arises from “an intentional act
... done with the intent to cause
injury or death or that is sexual assault or
other sexual
misconduct”.[173] So in NSW,
a plaintiff’s claim in respect of one of the trespass torts or indeed in
respect of any deliberate wrongdoing will
not be subject to the very significant
restrictions on personal injury compensatory damages imposed by Part 2 of the
NSW Act. The
prohibition on the award of exemplary, punitive and aggravated
damages in s 21 of the NSW legislation would not apply either. That
applies in
respect of negligent conduct
alone.[174] In Tasmania, Victoria
and Western Australia the position is similar to that in
NSW.[175]
In NSW any claim
which might be brought by a victim of trafficking or slavery, whether it is in
respect of extreme labour exploitation
or sexual exploitation, would be covered
by the exception. The exclusion from the tort reform legislation of civil
liability amounting
to sexual assault is explicit. In all other cases the
conduct of the trafficker or persons imposing conditions of slavery will be
deliberate intentional conduct carried out with the intent to cause injury to
the victim, or at the very least with reckless indifference
as to whether injury
will result.[176] The intention
requirement for causation of injury, including psychological injury, in tortious
causes of action will be satisfied
where the intention can be imputed to the
defendant having regard to all the circumstances in which the conduct takes
place. In
McCracken v Melbourne Storm Rugby League Football
Club[177] Hulme J held that an
illegal ‘spear tackle’ during a rugby league match was intentional
and done with intent to cause
injury to the plaintiff so that s. 3B (1) (a)
Civil Liability Act 2002 (NSW) operated to remove the plaintiff’s
claim for damages from the restrictions imposed by the Act. His Honour relied
upon
the evidence in a video recording of the incident to infer the requisite
intention. In cases of trafficking and slavery the requisite
intention will have
to be imputed from the victim’s evidence as to the conduct of the
perpetrator.
The NSW provision excluding claims in respect of intentional
acts from the operation of the Civil Liability Act 2002 comprises two
elements: firstly, an intentional act on the part of the defendant and secondly,
an intention on the defendant’s
part to cause injury to the plaintiff. A
literal reading of the section would make a claim in respect of an intentional
act done
without intention to cause injury, subject to all the provisions in the
legislation including the restrictions on damages recoverable.
But the trespass
torts are actionable per se: there is no requirement to prove any actual
or even intended injury apart from an intention to interfere with the
plaintiff’s
rights. In cases where there has been no actual physical or
psychological injury to a plaintiff, the NSW courts have adopted a broad
definition of the term “injury” used in s 3B (1) (a) Civil
Liability Act 2002 (NSW). In Houda v
NSW,[178] a claim in
respect of a wrongful arrest where the plaintiff claimed false imprisonment and
assault, Cooper AJ held that ‘injury’
was not confined to physical
injury. His Honour held that the police constable in that case acted with the
intent to injure the plaintiff
in the sense of depriving him of his liberty,
forcefully restraining him, humiliating him and causing him emotional upset.
Accordingly,
the plaintiff’s claim was excluded from the operation of the
Civil Liability Act 2002 (NSW). This construction of the section was
affirmed in the NSW Court of Appeal in NSW v
Ibbett[179] where Spigelman
CJ, referring to the decision in Houda v NSW, held that the term
“injury” in s. 3B(1)(a) would include the harm of an apprehension of
physical violence.[180] In the
same case Ipp JA held that the term included anxiety or
stress[181] and Basten JA held it
was not restricted to personal
injury.[182]
In cases
founded on a defendant’s conduct which amounts to trafficking or slavery,
there is little doubt that the claim would
not be subject to the restrictions on
damages in the Civil Liability Act 2002 NSW because there would always be
at least an imputed intention to cause some injury to the plaintiff. Even where
the only injury
proved or intended was emotional distress or humiliation or
deprivation of human rights not amounting to physical injury, the
plaintiff’s
claim in the trespass torts would not come within the limiting
provisions of the Civil Liability Act 2002 (NSW). Given that the
provisions in Tasmania, Victoria and Western
Australia[183] are similar to the
NSW provision, excluding deliberate acts from the tort reform legislation, the
position with respect to claims
in trafficking and slavery cases in those states
would be the same as in NSW.
H Aggravated and Exemplary Damages
As trafficking and slavery are such contemptible abuses of human rights,
victims would be well advised to pursue aggravated and exemplary
damages awards
in any claims against perpetrators.
Aggravated damages are a form of
general damages awarded to compensate a plaintiff who has been treated in a
“high handed, malicious,
insulting or oppressive
way”[184] or who has been
subjected to humiliation[185] and
emotional distress.[186]
Aggravated damages are provided by way of compensation for injury which may
be intangible, resulting from the circumstances and manner
of the
defendant’s wrongdoing.[187]
Exemplary damages are punitive damages. Whereas aggravated damages focus on the
humiliation and emotional distress of the plaintiff,
exemplary damages focus on
the reprehensible conduct of the defendant and are awarded as retribution and
deterrence.[188] In the context of
a trafficking or slavery case, these types of damages are an appropriate, indeed
crucial consideration for plaintiff’s
lawyers and the courts.
The
English High Court has made an award of exemplary damages in one case of a
tortious claim by victims against their traffickers.
That decision is
instructive for Australian lawyers and courts, although Australian law as to the
nature and purpose of exemplary
damages[189] differs in important
major respects from the English
position.[190]
H The English Case: AT v
Dulghieru[191]
In
the English case of AT v Dulghieru four young Moldovian women victims of
trafficking for sexual exploitation obtained a judgment against two of their
traffickers in
the tortious cause of action of unlawful conspiracy, though the
facts establishing the conspiracy would also have established the
several torts
of deceit, assault, battery, false imprisonment, and the action on the case in
Wilkinson v Downton, discussed above. The judgment of Treacy J was
delivered following a hearing for assessment of damages at which there was no
appearance
by or on behalf of the defendants. It is not evident from the
judgment how liability issues had been resolved, as there is no reference
to any
hearing though, apparently the plaintiffs had obtained summary
judgment.[192]
The four
plaintiffs were awarded a total of £ 601,000 in damages comprising
compensatory damages for psychiatric injury, the
periods of false imprisonment,
pain and suffering and loss of amenity due to sexual abuse, as well as
aggravated damages and exemplary
damages. The plaintiffs had been tricked into
travelling from Moldovia to London on the promise of work as dancers. Until they
escaped,
they were treated in a vile manner by their traffickers and had been
subjected to the most degrading and cruel treatment for periods
of one or two
months during which they were kept imprisoned in a basement flat and forcibly
taken to brothels to work.
The judgment deals carefully with the
questions of when in English law, aggravated and exemplary damages are
appropriate and the relationship
between the two. Treacy J was at pains to
demonstrate that the plaintiffs were not being compensated twice for the same
injuries
and that the defendants, who were serving substantial prison terms,
were not being punished twice for their unlawful behaviour.
Treacy J held
that an award of aggravated damages was appropriate in the case because
“the behaviour of the defendants amounted
to insulting and arrogant
treatment of these claimants, trampling as it did, upon their rights as
autonomous human beings and subjecting
them to repeated episodes of degrading
non-consensual sexual activity over a significant period of
time”.[193] His Honour held
that the psychiatric harm which was included in the award of general damages
should be distinguished from “the
injury to feelings, humiliation, loss of
pride and dignity and feelings of anger or resentment caused by the actions of
the defendants”[194] and
that it was this later injury that should be the subject of the award of
aggravated damages, which are compensatory in nature
rather than punitive.
On the issue of exemplary damages the judgment in Dulghieru
creates some uncertainty about the function of these damages in England: are
they punitive or do they have a restitution purpose?
Treacy J. referred to
Rookes v Barnard[195] in
particular Lord Devlin’s second category of case in which exemplary
damages may be awarded, namely where “a defendant
with cynical disregard
for a claimant’s rights has calculated that money to be made out of his
wrongdoing will probably exceed
the damages at
risk”.[196] Treacy, J also
held that the rationale for this second category of case where exemplary damages
might be awarded is “not the
punishment of the defendant but the
prevention of his unjust enrichment”.
[197] Accordingly, on the basis
that the defendants had deliberately disregarded the plaintiffs rights in order
to make a very significant
profit for themselves, which would be far beyond any
sum that might subsequently be recovered by the claimants in any legal process,
Treacy J awarded a sum of £60,000 by way of exemplary damages to be divided
equally amongst the four claimants. His Honour considered
that this rationale of
prevention of unjust enrichment also justified the making of the award for
exemplary damages even though the
defendants had been prosecuted successfully
under the criminal law, because the criminal prosecution did not result in any
compensation
order for the
claimants.[198] There had also
been confiscation orders made in the criminal proceedings but Treacy, J held
that such orders did not preclude an
award of exemplary damages, again having
regard to the rationale behind awarding exemplary damages being the prevention
of unjust
enrichment.[199]
I The Australian Approach to Exemplary
Damages
The way in which Treacy J treated the question of exemplary damages in this
case is markedly different from the approach which would
be taken by an
Australian Court, given High Court authority on the nature and purpose of
exemplary damages. The Australian High Court
has expressly rejected the House of
Lords approach in Rookes v Barnard concerning the restricted
circumstances in which exemplary damages will be awarded in Uren v John
Fairfax & Sons
Limited[200] and Australian
Consolidated Press Ltd v Uren.
[201] The High Court has held that
exemplary damages may be awarded where a defendant's conduct is "high handed,
insolent, vindictive
or malicious” or where the defendant has displayed a
"contumelious disregard of the plaintiff's
rights".[202] The High Court has
stressed that there must be evidence of positive conduct on the part of the
defendant "in contumelious disregard
of another's
rights"[203] before an award of
exemplary damages would be made. Exemplary damages have been awarded in many
different tortious causes of action
in Australia including in some of the causes
of action discussed above, namely
deceit[204];
conspiracy[205];
battery[206] and false
imprisonment.[207] The High Court
has held that an award of both aggravated and exemplary damages is permissible
and does not amount to a 'double punishment'
where the quantum of each is not
excessive, because the two are different in
kind.[208]
In Australia
the High Court has explicitly held that the purpose of exemplary damages is to
punish and deter a defendant.[209]
There is no Australian authority to suggest that another rationale might be to
prevent the defendant's unjust enrichment or to provide
a form of restitution to
a plaintiff. Further, High Court authority demonstrates that an award of
exemplary damages where a defendant
has already been convicted or is likely to
be convicted and punished in respect of a criminal offence arising from the same
events
in respect of which exemplary damages are sought, may be unjust: a double
punishment. In such cases the High Court has held that
a trial judge should not
award exemplary damages. Kirby J has held that in such circumstances because the
object of exemplary damages
is to punish a defendant, a court must take into
account the fact that the defendant has already been punished by
conviction.[210]
There is
a further related question as to the effect of an order for confiscation of a
defendant’s assets as proceeds of crime
pursuant to the Proceeds of
Crime Act 2002 (Cth) on the issue of exemplary damages. Given that
the Australian courts are inclined to regard a criminal conviction as a
significant
factor weighing against an award of exemplary damages, it is perhaps
unlikely that exemplary damages would be awarded where a defendant’s
assets had been confiscated as proceeds of crime, on the basis that the result
would be a double punishment. This was an issue in
AT v Dulghieru though
there the Judge held that the confiscation did not preclude an award of
exemplary damages because the profits made by the
defendants at the expense of
their victims had been far in excess of the sums confiscated and that the
defendants would not be “mulcted
in the same sum
twice”[211]. In Australia
the problem would be overcome if the Proceeds of Crime Act 2002 (Cth)
were amended to allow confiscated assets to be available to satisfy an award of
exemplary damages in favour of a victim, thereby
overcoming the ‘double
punishment’ argument.
It appears therefore that in Australia,
exemplary damages will be available in a case where a tortious remedy is sought
by a victim
of trafficking or slavery, except where the defendant has already
been or is likely in the future to be convicted of a criminal offence
or
possibly where assets have been confiscated as proceeds of crime. The measure of
the exemplary damages in Australia will not be
a sum to provide restitution to
the plaintiff in respect of unjust enrichments obtained by a defendant. Rather,
it will be a sum
deemed by the court to be a suitable punishment for the
defendant's conscious and contumelious disregard for the plaintiff's rights:
in
trafficking cases the basic human rights of the plaintiff. The question is
whether Australian courts might be prepared to look
to the unjust enrichment by
the trafficker, the profit made at the expense of the plaintiff, as a means of
quantifying the exemplary
damages in order to punish the
defendant.[212]
Further it
might be argued that in trafficking and slavery cases, where a defendant has
been convicted of a criminal offence, that
fact should not be a bar to an award
of exemplary damages but rather one factor to be weighed in the assessment of
what might be
a suitable quantum of exemplary damages, given that in trafficking
and slavery cases defendants will commonly have made substantial
profits at the
expense of the most outrageous deprivation of their victims' human
rights.
The common law of tort provides some valuable opportunities for
victims of trafficking and slavery to pursue remedies and compensation
from the
perpetrators of their human rights abuses. The availability of aggravated and
exemplary damages makes the common law a particularly
suitable avenue for
redress because of the punitive and deterrent effects of such damages awards.
Yet, for many victims, the pursuit
of a claim in tort may present considerable
challenges which are the focus of the following discussion.
III OBSTACLES TO TORTIOUS CLAIMS
A Availability of Timely Pro Bono Legal Advice
One of the major obstacles to victims of trafficking and slavery
instituting claims for compensation is the obvious difficulty of
the
availability of legal advice[213]
which of necessity must be on a pro bono basis. Victims who are identified in
the community or by Australian police or immigration
authorities are generally
referred to one of several non government
organisations[214] who offer
practical assistance and support. Whilst those organisations may flag the
availability of legal advice, victims who are
traumatised by their experiences
may not avail themselves of the opportunity. Research shows that trafficked
women in particular,
suffer the effects of trauma long after their escape from
the situation of trafficking and recovery from their physical
injuries.[215] The lengthy
psychological recovery process is itself an obstacle to the commencement and
maintenance of a civil claim. Victims’
fear of facing perpetrators,
undergoing cross examination and unfamiliarity with the legal process are all
factors which mitigate
against civil claims unless legal advisors are able to
offer the most sensitive support having regard to cultural background and
language difficulties.
Where a victim does decide to pursue a claim in
tort there may well be several practical difficulties to be overcome in the
prosecution
of the claim through the courts. These difficulties stem from the
problem of identifying individual traffickers who would have assets
sufficient
to satisfy a judgment who are able to be joined to proceedings and served with
process. Complex arrangements amongst persons
involved in trafficking and
exploitation lead to difficult questions of vicarious liability and agency. The
possibility of an order
for security for costs against an impoverished plaintiff
resident outside the jurisdiction is a critical problem and there are some
evidentiary problems which would be common to these types of claims.
B Discovery Before Action: who are the
defendants/conspirators?
Trafficking schemes are most often multi-tiered in the sense that there
are various persons involved, at different times and often
in different
countries, in the recruitment, transport and exploitation of a
victim.[216] This was the
situation in the Wei Tang
case.[217] Obviously there will be
severe difficulties encountered by victims’ lawyers in identification and
process service of traffickers,
particularly those who are located off shore. A
victim will not always be aware of all those who might have been complicit in a
conspiracy
to traffic and enslave: only first names might have been used in the
victim’s presence, or the victim might never have met
some of the persons
involved. The difficulties are obvious and will in some cases present a very
significant hurdle for a plaintiff
who wishes to join all perpetrators to civil
proceedings, particularly where the ‘deepest pockets’ may reside in
those
individuals at the top of the tier.
Some of these difficulties
might be overcome by the use of preliminary discovery and inspection. In NSW for
example, the Uniform Civil Procedure Rules 2005, Part 5 will apply where
a plaintiff has made reasonable inquiries and is unable to ascertain the
identity or whereabouts of a person for
the purpose of commencing proceedings
against that person. In such circumstances the plaintiff may make application to
the court
for orders that another person having information or possession of
documents tending to assist in ascertaining the identity or whereabouts
of a
possible defendant attend the court to be examined or give discovery of
documents that are, or have been in the other person’s
possession, and
that relate to the identity or whereabouts of the possible defendant. Other
Australian jurisdictions have similar
procedural
rules[218] which might assist a
victim to identify the more shadowy members of a trafficking group.
C Issues of Multiple Tortfeasors, Vicarious Liability and Agency
Those perpetrators at the bottom of the tier of responsibility will often
have the fewest assets available for enforcement of any
judgment. However in
labour trafficking cases the position may be different. The ultimate employer
within Australia may be a corporation
or an individual with substantial assets.
In such cases, unscrupulous labour hire contractors may be the traffickers or at
least
the exploiters in the destination
country[219] whilst corporations
or individuals who use workers supplied by these labour hire contractors may
have some knowledge, or at least
prefer not to know, of the situation of
trafficked workers.
If there is an agency relationship between a labour
hire contractor and the person to whom the labour is supplied then vicarious
liability will apply in respect of torts committed against the victims of
trafficking. In the U.S.A. there have been some successful
claims in cases of
labour trafficking against parties where a principal and agent relationship has
been relied upon.[220] Where no
agency relationship can be established, and that will usually be the case, given
that an arrangement with a labour hirer
will generally be in the nature of an
independent contract arrangement, the plaintiff’s only option would be to
join the ultimate
‘employer’ and the labour hire contractor as joint
tortfeasors where it could be established, on the balance of probabilities,
that
there was knowledge and the requisite imputed intention to commit a tort on the
part of the ultimate
‘employer’.[221]
D Plaintiffs Outside the Jurisdiction
Whilst Australia now has a special trafficking visa framework to assist
victims of trafficking,[222]
eventually many victims will return to their home countries, either because they
are not able to obtain further visas to remain in
Australia or because they
prefer to return home to families. Where a plaintiff is not able to remain in
Australia, there are severe
practical difficulties in taking legal advice and
instructing lawyers. Even the most determined plaintiff and the most generous
pro
bono lawyer will find the dictates of long distance communication in a
different language extremely difficult. The procedural difficulties
to be
surmounted are numerous. Constant communication with a lawyer is essential.
There are documents to be signed and served, oral
and documentary evidence to be
marshalled and there are inevitable delays where a plaintiff is not present in
the jurisdiction.
There is no Australian visa category which would
enable victims to remain in or to return to Australia to maintain a civil case
against
a trafficker. The introduction of some type of temporary residence
permit to allow victims to remain in Australia to initiate and
maintain claims
for compensation against traffickers would be a worthwhile step toward enabling
victims to pursue just compensation,
in accordance with Australia’s
international law
obligations.[223]
E Security for Costs
A significant difficulty for a civil claimant who is residing outside the
jurisdiction is the spectre of an order for the payment
of security for costs.
All Australian jurisdictions have civil procedure or court rules pursuant to
which a court may order that
a plaintiff who is ordinarily resident outside the
jurisdiction provide security for
costs.[224] The purpose of such an
order is to ensure recovery by a defendant in the event of an adverse outcome of
a plaintiff’s case.[225] In
NSW for example, the relevant rule provides that where:
in any proceedings it appears to the court, on the application of a
defendant, that a plaintiff is ordinarily resident outside New
South Wales, the
court may order the plaintiff to give such security as the court thinks fit, in
such manner as the court directs,
for the defendant’s costs of the
proceedings and that the proceedings be stayed until the security is
given.[226]
The exercise
of the power to order security for costs is discretionary in all Australian
jurisdictions with the guiding principle
being that persons have the right to
bring and maintain actions to enforce their rights through the
courts.[227] In particular, the
courts will be extremely circumspect about ordering security for costs where the
effect of the order may be to
shut a plaintiff out of the litigation process,
because of poverty.[228] The court
is required to balance the possible injustice to an impecunious plaintiff, whose
right to litigate might be stripped away,
with fair and adequate protection to
a defendant in the event that the plaintiff’s case is found to be
deficient.[229] The general
principles which the courts will consider in deciding whether to exercise the
discretion to order security for costs
include the limited financial means of
the plaintiff;[230] the bona fides
of the claim;[231] whether an
order would stifle the plaintiff’s
claim;[232] the prospects of
success of the plaintiff;[233]
whether the plaintiff’s financial situation is the result of the
defendant’s conduct;[234]
whether the plaintiff is resident outside the
jurisdiction;[235] whether the
plaintiff sues in a representative
capacity;[236] delay by the
defendant;[237] any public
interest in the proceedings;[238]
and the disparity in the resources of the
parties.[239] Naturally, the
relevance of and weight to be afforded to the different factors will vary from
case to case.
A victim of trafficking or slavery will obviously be a
person of very limited financial means and where such a person has returned
to a
home country, a tortious claim may very well be met by an application for
security for costs by a defendant. In deciding whether
to exercise the
discretion to order security in such a case, the major issues to be weighed by
the court will be the plaintiff’s
impecuniosity and the consequent
likelihood that a security for costs order will have the practical effect of
barring the plaintiff’s
claim. This effect has been held to be a
significant factor in the exercise of the discretion in favour of the
plaintiff.[240] Further it has
been held that there is no inflexible rule that an order for security for costs
ought to be made when a plaintiff
is ordinarily resident outside the
jurisdiction.[241]
Certainly where a plaintiff is ordinarily resident outside the
jurisdiction, the provisions in the Uniform Civil Procedure Rules 2005 in
NSW and similar rules in other Australian jurisdictions, have the effect of
enlivening the court’s power to order security
for costs, but the
discretion may nevertheless be exercised in favour of the plaintiff, as was the
case in Corby v Channel Seven Sydney Pty
Ltd[242]. There the plaintiff
in defamation proceedings was ordinarily resident outside NSW and was without
regular income. The court held
that the effect of an order for security in the
sum sought by the defendant might “well prevent the plaintiff from
continuing
to prosecute her
claim”.[243] Further the
court held that the delay by the defendant in bringing the application for
security and the “strong financial position
of the corporate
defendant”[244] were factors
weighing in favour of the plaintiff. Significantly the court found that the
defendant could, if necessary, absorb the
costs of enforcing a judgment in Bali
where the plaintiff resided. Finally the court held that the interests of
justice between the
parties did not require the provision of protection to the
defendants in respect of the costs of enforcing a judgment overseas.
The
stultification factor, that is the propensity for an order for security to
preclude the plaintiff’s claim altogether, would
surely be given much
weight by a court where an order for security was sought in a trafficking or
slavery case, particularly given
a plaintiff’s poverty and the likelihood
that it was, in large part, caused by the defendant’s treatment of the
plaintiff.
F Evidentiary problems: corroboration, credibility and conviction.
In a civil case in tort the plaintiff’s evidence will of course, be
critical to proving on the balance of probabilities all
elements of the cause.
Unfortunately in many such cases there will be little if any corroborative
evidence available. The search
for corroborative evidence would be expensive
and may be difficult and time consuming. A review of Australian trafficking
criminal
prosecution transcripts, undertaken by the Australian Institute of
Criminology, revealed that prosecutors had obtained corroborative
evidence from
a number of sources including brothel clients whom trafficked women had asked
for help, mobile telephone records confirming
victim’s movements,
financial records confirming money transfers, photographs of premises and other
documentary material.[245] There
is no reason why a lawyer in a civil case would not be able to seek out such
evidence, though of course the search may be limited
by a lack of financial and
other resources.
Issues of the plaintiff’s credibility will
almost certainly be raised by a defendant and the plaintiff’s lawyer will
need
to ensure that the victim is allowed to explain any prior inconsistent
statements that might have been made to criminal investigators,
or to
immigration authorities or to an organisation that may be supporting the victim.
According to the Australian Institute of Criminology’s
research there have
been several Australian trafficking criminal prosecutions where victims had
given several statements to investigators
that differed in significant ways,
therefore amounting to prior inconsistent
statements.[246] There are many
reasons why a victim might make an incomplete or even false statement when first
discovered by authorities or when
relying on NGO support: trauma causing
confusion and memory loss; fear of deportation or incarceration; fear of
retribution by traffickers
against themselves or their families.
Leaving aside questions about how any documentary statements might come
into the hands of defendants, a plaintiff’s lawyer would
be well advised
to ensure that any documentary statements made by a victim are obtained and
considered for inconsistency and that
the plaintiff has an opportunity to
explain any such inconsistency. The types of statements mentioned above will not
be privileged
and will be admissible on cross-examination on the issue of
credibility.[247]
An
additional evidentiary consideration in a civil claim brought by a victim
against a trafficker or enslaver is whether a criminal
conviction of the
defendant on a trafficking or slavery or related charge will be admissible at
the civil trial. Findings of fact
in previous proceedings are inadmissible at
common law in subsequent proceedings, except where an issue estoppel arises
between the
parties.[248] There
will be no issue estoppels between the parties to a civil claim where the
previous proceeding was a criminal one.
In the Northern Territory,
Queensland and South Australia by legislation, a conviction will be admissible
in civil proceedings.[249] In
proceedings in a federal jurisdiction or in the ACT or NSW or Tasmania or
Victoria, evidence of a decision or of a finding of
fact in a prior proceeding
is not admissible to prove the existence of any fact that was in issue in the
prior proceeding.[250] Though, in
those jurisdictions in civil proceedings, evidence of a prior decision will be
admissible to prove that a party has been
convicted of an offence (provided
there is no appeal pending or the conviction has not been quashed or set
aside).[251] So, whilst a
plaintiff will be able to rely on a conviction to prove a slavery or trafficking
offence by the defendant, any findings
of fact in the criminal trial or the
conviction itself, will not be admissible to prove the facts constituting the
elements of a
tortious cause of action.
G Pyrrhic Victories: Enforcing Judgments Against Traffickers
A significant potential challenge at the conclusion of a successful case
is of course, the recovery of the verdict money from the
defendant. In some
instances defendants in trafficking or slavery cases will have business or
personal assets which would be available
to satisfy a judgment debt but as with
other aspects of the litigation process, it may be costly and difficult for the
plaintiff
to pursue a defendant determined to avoid payment.
In cases
where there has been a criminal conviction it would be to a victim’s
advantage if assets of the defendant were confiscated
as proceeds of crime and
then made available to satisfy the victim’s judgment debt or perhaps a
reparations order pursuant
to s 21B Criminal Code Act 1995 (Cth). The
Proceeds of Crime Act 2002 (Cth) establishes a scheme to trace, restrain
and confiscate proceeds of Commonwealth crime. At present the act provides that
confiscated
funds are to be used for crime prevention, law enforcement, and
reduction of the harmful effects of drug addiction in
Australia.[252] Whilst funding
has been used to finance various projects to assist victims of
crime,[253] the Act does not allow
for confiscated proceeds of crime in individual cases to be used to compensate
victims or to satisfy civil
damages judgments in favour of victims. Reform of
this aspect of the proceeds of crime legislation in Australia would be a measure
which would enhance the prospects of successful recovery of tortious damages in
cases where a criminal prosecution had been
successful.[254] In the UK there
is provision for a court to order that forfeited asset proceeds be paid to a
person who has suffered personal injury
or damage as the result of an
offence[255] or where a
compensation order has been made by the criminal
court.[256] A provision of this
kind in the Australian Proceeds of Crime Act 2002 (Cth) would be of
obvious benefit to victims in those cases in which prosecutions are successful.
CONCLUSION
The issue of compensation for victims of trafficking and slavery is
crucial, especially given Australia’s commitment to human
rights and its
international obligations which include the responsibility to ensure effective
remedies for victims. The provision
of functional and viable pathways to
compensation for victims should be an essential element of the Australian human
rights based
response to the problem of human trafficking and slavery.
At present in Australia, the surest way for a victim to recover at least
a limited amount by way of compensation, is pursuant to one
of the Australian
States’ victims of crime compensation schemes. But the amounts recoverable
under these schemes are not as
generous as the amounts which would be available
following a successful tortious claim at common law. Nevertheless for those
victims
for whom the difficulties of pursuing a claim at common law are
insurmountable, the state victims of crime compensation schemes provide
a viable
option for recovery. But these state schemes do not specifically provide for
compensation in respect of the federal crimes
of trafficking and slavery.
Rather, a victim needs to bring a claim within the parameters set by the state
schemes. A better solution
and one in keeping with Australia’s
international obligations would be an Australian Commonwealth scheme to
compensate victims
of federal crimes, including human trafficking and slavery
crimes. Such a scheme would ensure not only Australia’s compliance
with
its international obligations but would constitute recognition by Australia of
the need to ensure that the human rights of victims
are restored. From a human
rights perspective, Australia must not only investigate and prosecute
perpetrators and support victims,
as it does. It must aim for restoration of
fundamental human rights, at least by way of adequate compensation.
Tortious remedies have an important role to play in the provision of
just recompense for victims because they offer the prospect of
significant
compensatory damages as well as aggravated and exemplary damages. The tortious
causes of action discussed above clearly
provide opportunities for victims to
obtain adequate and proper compensation for the human rights abuses they have
suffered. Yet
there are inherent difficulties in the commencement and
maintenance of such claims including personal issues for traumatised victims
who
may be outside the jurisdiction, the difficulty of identifying and serving
defendants, evidentiary challenges and the obvious
grave problems of recovering
a judgement debt. At least in the rare cases where the plaintiff’s
personal and procedural difficulties
can be overcome and where the defendant has
been convicted of a criminal offence, the recovery of a judgment debt could be
assured
where assets of the defendant were confiscated as proceeds of crime and
then made available to satisfy the victim’s judgment
debt. Amendment of
the Proceeds of Crime Act 2002 (Cth) to allow for confiscated proceeds of
crime in individual cases to be used to satisfy civil damages judgments in
favour of victims
would not only be of great practical assistance but would be
in accordance with Australia’s international obligations.
Tortious
causes of action for intentional harm to victims of slavery and trafficking
certainly provide valuable opportunities for
recovery of compensation.
Lamentably, except in a very few cases, the prospect of recovery of substantial
damages may well be outweighed
by the practical difficulties of instituting and
maintaining such civil claims and the uncertainty of recovery of a judgment
debt.
Commonwealth legislation to provide compensation to victims would be the
surest way for Australia to meet its human rights obligations
in those cases
where tortious claims are not feasible.
∗Senior lecturer, Faculty of Law, University of Technology,
Sydney.
The author would like to record her thanks to Professor Anita
Stuhmcke of the University of Technology, Sydney, for her very valuable
comments
on the draft manuscript. The author is also grateful to the anonymous reviewers
of the article for their helpful remarks.
1 Australian Federal
Police, Stopping Human Trafficking http://www.afp.gov.au/policing/human-trafficking.aspx;
Australian Federal Police, Annual Report, 2008/9, Chapter 3
“Performance Details and Operational Outputs”; Australian
Government, Trafficking in Persons: The Australian Government Response 1 May
2009 – 30 June 2010, The Second Report Of The Anti-People Trafficking
Interdepartmental Committee (2010) Canberra,
26.
[2] Parliamentary statement by
the Minister for Home Affairs and Justice, the Hon Brendan O’Connor MP,
The Government’s Response to People Trafficking, 22 November, 2010.
http://www.ag.gov.au/peopletrafficking
[3]
Australian Government, Trafficking in Persons: The Australian Government
Response 1 May 2009 – 30 June 2010, The Second Report Of The
Anti-People Trafficking Interdepartmental Committee (2010) Canberra,
25.
[4] [1897] 2 QB
57.
[5] Gallagher, A.,
Prosecuting and Adjudicating Trafficking in Persons Cases in Australia:
Obstacles and Opportunities, Address to National Judicial College of
Australia, Twilight Seminar on Human trafficking, State Library of NSW, 15 June,
2009.
http://njca.anu.edu.au/Professional%20Development/People%20Trafficking/Gallagher%20Judicial%20College%20Seminar.pdffied
[6]
Ibid.
[7] Though this is a
discretionary matter for the court: Crimes Act 1914 (Cth) s.
21B.
[8] Protocol to Prevent,
Suppress and Punish Trafficking in Persons Especially Women and Children,
Supplementing the Convention against
Transnational Organised Crime GA Res.
25, annex II, UN GAOR, 55th Sess, Supp No. 49, U.N. Doc A/45/49 (Vol
1) (2001), entered into force 9 September 2003, ratified by Australia in 2005,
Art. 3.
[9] Australian Government,
Trafficking in Persons: The Australian Government Response 1 May 2009 –
30 June 2010, The Second Report Of The Anti-People Trafficking
Interdepartmental Committee (2010) Canberra,
12.
[10] Schloenhardt, A.,
Beirne, G and Corsbie, T., “Human Trafficking and Sexual Servitude in
Australia” (2009)32 UNSWLJ
27.
[11]
Ibid.
[12] Australian Government,
Trafficking in Persons: The Australian Government Response 1 May 2009 –
30 June 2010, The Second Report Of The Anti-People Trafficking
Interdepartmental Committee (2010) Canberra, 25. See also Fiona David,
Labour Trafficking, Australian Institute of Criminology, Research and
Public Policy Series, Report 108,
15.
[13] U.S. Department of
State, Trafficking in Persons Report 2010, http://www.state.gov/g/tip/rls/tiprpt/2010/
[14]
Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially
Women and Children, Supplementing the Convention against
Transnational Organised
Crime GA Res. 25, annex II, UN GAOR, 55th Sess, Supp No. 49, U.N.
Doc A/45/49 (Vol 1) (2001), entered into force 9 September 2003, ratified by
Australia in 2005.
[15] See also
UN Office on Drugs and Crime, Global Report on Trafficking in Persons,
February, 2009. http://www.unodc.org/documents/Global_Report_on_TIP.pdf
[16]
Australian Government, Trafficking in Persons: The Australian Government
Response 1 May 2009 – 30 June 2010, The Second Report Of The
Anti-People Trafficking Interdepartmental Committee (2010) Canberra,
25.
[17] Ibid; Simmons, F &
Burn J, “Evaluating Australia’s response to all forms of
Trafficking: Towards Rights- Centred
Reform” (2010) 84 ALJ
712.
[18] Phillips J & Park M
Measuring Domestic Violence and Sexual Assault Against Women: A Review of the
Literature and Statistics. http://www.aph.gov.au/loibrary/intguide/SP/Violence
Against Women.htm; Fiona David, Labour Trafficking, Australian
Institute of Criminology, Research and Public Policy Series, Report 108,
15.
[19] The Imperial Slave
Trade Enactments included An Act for the Abolition of the Slave Trade
1807 (UK), Slave Trade Act 1824 (UK), Slave Trade Act 1843 (UK)
and Slave Trade Act 1873
(UK).
[20] Set out below at D
Australia’s International
Obligations.
[21] Criminal
Code Act 1995 (Cth), s 271.1, s
271.4.
[22] Criminal Code Act
1995 (Cth), s 271.5, s
271.7.
[23] Criminal Code Act
1995 (Cth), s 271.2.
[24]
Criminal Code Act 1995 (Cth), s
270.6.
[25] Criminal Code Act
1995 (Cth), s 270.7.
[26]
Criminal Code Act 1995 (Cth), s
271.8.
[27] Criminal Code
Act 1995 (Cth), s
271.2(1).
[28] Criminal Code
Act 1995 (Cth), s 271.2 (2), s 271.2
(2B).
[29] Criminal Code
Act 1995 (Cth), s. 271.2
(2A).
[30] Criminal Code Act
1995 (Cth) Dictionary.
[31]
Criminal Code Act 1995 (Cth) s 270.7 (1) (Inducing a person to enter into
an engagement where they are deceived about providing sexual services) and
s
270.3(1) (possess or exercise right of control over a slave) respectively. For a
discussion of all the relevant provisions, see
McSherry B, “Trafficking in
Persons: A Critical Analysis of the New Criminal Code Offences” (2007)
18(3) Current Issues in Criminal Justice
385.
[32] [2008] HCA 39; (2008) 237 CLR
1.
[33] Ibid 18-19, [27]-[35]
(Gleeson CJ).
[34] Ibid 25, [50]
(Gleeson CJ).
[35]
Ibid.
[36] Ibid 24 [40] (Gleeson
CJ).
[37] For a discussion of the
case see Allain, Jean, “R v Tang: Clarifying the Definition of
Slavery in International Law” [2009] MelbJlIntLaw 12; (2009) 10 Melbourne Journal of
International Law 246; Kilodizner, Irina, “Developing an
Australian Anti-Slavery Jurisprudence: R v Tang” [2009] SydLawRw 19; (2009) 31
Sydney Law Review
487.
[38] GA Res. 25, annex II,
UN GAOR, 55th Sess, Supp No. 49, U.N. Doc A/45/49 (Vol 1) (2001),
entered into force 9 September 2003, ratified by Australia in 2005.
[39] Convention to Suppress
the Slave Trade and Slavery Geneva, opened for signature 25 September
1926, 212 UNTS 17 (entered into force 9 March 1927), League of Nations Treaty
Series, Vol. 60, 254.
[40] Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 226 UNTS 3, opened for signature 7 September 1956, (entered into force 30 April 1957).
[41] Universal Declaration of Human Rights, UN GA RES 217A (III) UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December1948).
[42] International Covenant on Civil and Political Rights GA RES 2200A (XXI), opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[43]ILO Convention concerning
Forced or Compulsory Labour, opened for signature 28 June 1930, 39 UNTS 55
(entered into force 1 May
1932).
[44] International
Covenant on Civil and Political Rights GA RES 2200A (XXI), opened for
signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976),
Article 2(3) provides that “where a person’s rights have been
violated, that person
has a right to an ‘effective remedy’ including
where appropriate, compensation”: UNHRC, The Nature of Legal
Obligations Imposed on State Parties to the Covenant, General Comment no 31,
UN Doc CCPR/C/Rev.1/Add.13 (2004)
[15].
[45] Declaration of
Basic Principles of Justice for Victims of crime and Abuse of Power, UN Doc
A/Res/40/34 (1985).
[46]
Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially
Women and Children, Supplementing the Convention against
Transnational Organised
Crime GA Res. 25, annex II, UN GAOR, 55th Sess, Supp No. 49, U.N.
Doc A/45/49 (Vol 1) (2001), entered into force 9 September 2003, ratified by
Australia in 2005, Art 6.6.
[47]
United Nations Working Group on Trafficking in Persons, Compensation for the
Victims of Trafficking in Persons, Conference room paper prepared by the
Secretariat CTOC/COP/WG.4/2010/ CRP.1 (2010).
[48] The USA has created a
special civil right of action for victims of trafficking by the Trafficking
Victims Protection Reauthorization Act 2003 codified under 18 U.S.C. 1595
(section 1595). For discussion see Jennifer s. Nam, “The Case of the
Missing Case: Examining the Civil Rights Action for Human
trafficking
Victims” (2007) 107 Colombia Law Review
1655.
[49] Footnotes 51 & 52
below. Compensation claims are more common in the USA where various avenues are
open to victims: Werner, Daniel
and Kim, Kathleen, Civil Litigation on behalf
of Victims of Human Trafficking, 3rd Edn, Immigrant Justice Project,
Southern Poverty Law Center, 2008. See also the general discussion in the
unattributed comment
“Remedying the Injustices of Human Trafficking
through Tort Law” (2006) Harvard Law Review, 2574. The position in
the United Kingdom is discussed in Lam, Janice and Skrivankova, Klara,
Opportunities and Obstacles: Ensuring Access to Compensation for trafficked
Persons in the UK, Anti Slavery International,
2009.
[50]Trafficking in
Persons: The Australian Government Response: Second report of the Anti-People
Trafficking Interdepartmental Committee
1 May 2009 – 30 June 2010,
Australian Government, Canberra,
2010.
[51]Australian Government,
Department of Families, Housing, Community Services and Indigenous Affairs
(FaHCSIA), Anti-People Trafficking Strategy Fact Sheet.
http://www.fahcsia.gov.au/sa/women/progserv/violence/Pages/AntiPeopleTraffickingStrategy.aspx
The Australian government’s Support Program for Victims of Trafficking
provides accommodation, financial assistance and access
to legal advice for
trafficked persons. The Australian Red Cross administers the program together
with the Office for Women: Trafficking in Persons: The Australian Government
Response January 2004- April 2009: Inaugural report of the Anti-People
Trafficking
Interdepartmental Committee, Australian Government, Canberra,
2009.
[52] Anti Slavery Project,
University of Technology, Sydney, Strengthening Australia’s Response to
Human Trafficking: Report to the Australian Women’s Coalition, 30
March, 2010, 30. www.antislavery.org.au; Law Council of
Australia, Submission, Consultation on the Criminal justice Response
to Slavery and People Trafficking; Reparation and Vulnerable Witness
Protections, 30 March, 2011. www.lawcouncil.asn.au. See also Simmons,
Frances, The Criminal Justice Response to Trafficking and Reparations:
Pathways To Justice: Compensation for Trafficked People, paper delivered at
Anti Slavery Project Seminar, University of Technology Sydney, 18 February 2011.
http://www.antislavery.org.au/newsflash/158-the-criminal-justice-response-to-trafficking-and-reparations.html
[53]
Victims of Crime (Financial Assistance) Act 1983 (ACT); Victim Support
& Rehabilitation Act 1996 (NSW); Crime (Victims Assistance) Act
2006 (NT); Victims of Crime Assistance Act 2009 (Qld); Victims of
Crime Act 2001 (SA); Victims of Crime Assistance Act 1976 (Tas);
Victims of Crime Assistance Act 1996 (Vic); Criminal Injuries
Compensation Act 2003 (WA).
[54] In May 2007, The Age
reported that a “former child sex slave has become the first person in
Australia to be compensated as a victim of sex trafficking”:
Natalie
Craig, “Sex Slave Victim Wins Abuse Claim”. The award of
compensation made by the NSW Victims Compensation Tribunal
was not in respect of
a trafficking offence but rather because the young woman was a victim of sexual
assault with a minor, a state
criminal offence. In Victoria in 2010 a
trafficked woman was awarded almost $30,000 under the Victims of Crime
Assistance Act 1996 (Vic): See Simmons, Frances. The Criminal Justice
Response to Trafficking and Reparations: Pathways To Justice: Compensation for
Trafficked People, paper delivered at Anti Slavery project Seminar,
University of Technology Sydney, 18 February 2011. http://www.antislavery.org.au/newsflash/158-the-criminal-justice-response-to-trafficking-and-reparations.html
[55]
Associate Professor Jennifer Burn, Director of the Anti Slavery Project at the
University of Technology, Sydney, who provides legal
advice and representation
to victims, advised the author that there are several cases awaiting resolution
in 2010/11 in the NSW
tribunal.
[56] Anti Slavery
Project, University of Technology, Sydney, Strengthening Australia’s
Response to Human Trafficking: Report to the Australian Women’s Coalition,
30 March, 2010.Recommendation 3, 39. www.antislavery.org.au
[57]
Australian Government, Attorney Generals Department, Crime Prevention,
Overview of the Proceeds of Crime Act 2002.
http://www.ema.gov.au/agd/WWW/ncphome.nsf/Page/POCA_funding_for_Non-Government_Agencies
[58]
Simmons, Frances, The Criminal Justice Response to Trafficking and
Reparations: Pathways To Justice: Compensation for Trafficked People, paper
delivered at Anti Slavery project Seminar, University of Technology Sydney, 18
February 2011. http://www.antislavery.org.au/newsflash/158-the-criminal-justice-response-to-trafficking-and-reparations.html
[59]
Vlahov v Commissioner of Taxation (1993) 26 ATR
49.
[60] Australian Government
Attorney General’s Department, The Criminal Justice Response to Slavery
and People trafficking: Reparation; and Vulnerable Witness Protections, 2010
Canberra, 21-24.
[61] Ibid. See
also the submission of Law Council of Australia, Consultation on the Criminal
justice Response to Slavery and People Trafficking; Reparation and Vulnerable
Witness Protections, 30 March, 2011. www.lawcouncil.asn.au.
[62]
Fair Work Act 2009 (Cth), Parts 2-2 and
4-1.
[63] Trafficking in
Persons: The Australian Government Response: Second report of the Anti-People
Trafficking Interdepartmental Committee
1 May 2009 – 30 June 2010,
Australian Government, Canberra, 2010, 18.
[64] Parliamentary statement by
the Minister for Home Affairs and Justice, the Hon Brendan O’Connor MP,
The Government’s Response to People Trafficking, 22 November, 2010.
http://www.ag.gov.au/peopletrafficking
[65]
In the case of R v Yogalingam Rasalingam, unreported, District Court of
NSW, Judge Puckeridge, 2 November, 2007, the defendant was acquitted by a jury
of a trafficking in
persons charge, though he was convicted of a lesser charge
of misleading a Commonwealth official in the immigration process. In
Fryer v
Yoga Tandoori House Pty Ltd [2008] FMCA 288 the defendant’s company
was ordered to pay a penalty in respect of 10 breaches of the relevant
award.
[66] Australian Government
Attorney General’s Department, The Criminal Justice Response to Slavery
and People trafficking: Reparation; and Vulnerable Witness Protections, 2010
Canberra, 11.
[67] For a
discussion of vindication and tortious damages generally, see Witzleb, N and
Carroll, R, “The Role of Vindication in
Tortious Damages” (2009) 17
Tort Law Review 16.
[68]
Freckelton I., Criminal Injuries Compensation Law, Practice and Policy,
LBC Information Services, Sydney,
2001.
[69] Uren v John Fairfax
& Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118.
[70] Vines, P., “The power
of apology: mercy, forgiveness or corrective justice in the civil liability
arena?” (2007) 1 Public Space: The Journal of Law and Social Justice
Art 5; Carroll, R., “You can’t order sorriness, so is there any
value in an ordered apology? An analysis of ordered apologies
in
Anti-discrimination cases” [2010] UNSWLawJl 16; (2010) 33 UNSW Law Journal 360; Brown,
C, “Apology legislation: Oiling the wheels of tort” (2009) 17
Tort L Rev 127; Wheeler, C., The Power of Sorry, Paper delivered
to Judicial Commission of NSW Seminar , 16 February, 2011, NSW Government
Publication, NSW Ombudsman,
2011.
[71] Dovuro Pty Ltd v
Wilkins [2003] HCA 51; (2003) 215 CLR
317.
[72] By way of examples,
apology orders are available pursuant to: Anti-Discrimination Act 1997
(NSW), s 108(2); Anti-Discrimination Act 1991 (Qld), s 209(1);
Federal Court Act 1976 (Cth), s 23 (in federal anti-discrimination
cases); Privacy and Personal Information Protection Act 1998 (NSW), s 55
(2)(e).
[73] Civil Liability
Act 2002 (NSW), s 69; Civil Liability Act 2003 (Qld), s 72;
Civil Liability Act 1936 (SA), s 75; Civil Liability Act 2002
(Tas), s 7; Wrongs Act 1958 (Vic), s 14J; Civil Liability
Act 2002 (WA), s 5AH; Civil Law (Wrongs) Act 2002 (ACT),
s 14; Personal Injuries (Liabilities and Damages) Act 2003 (NT),
s 13.
[74] Burnie Port
Authority v General Jones Ltd [1994] HCA 13; (1994) 179 CLR 520, 585 (McHugh J).
[75] AT v
Dulghieru [2009] EWHC 225
(QB).
[76] [1897] 2 QB
57.
[77] R v Kovacs [2008] QCA 417; [2009]
2 Qd R 51; The Queen v Tang [2008] HCA 39; (2008) 237 CLR 1; R v McIvor &
Tanuchit [2010] NSWDC 310;R v Dobie unreported, Queensland District
Court, Brisbane, 18.12.2008 (unsuccessful appeals [2009] QCA 394 and [2010] QCA
34).
[78] R v Kovacs
[2008] QCA 417; [2009] 2 Qd R 51; The Queen v Tang [2008] HCA 39; (2008) 237 CLR 1; R v McIvor
& Tanuchit [2010] NSWDC
310.
[79] Secretary,
Department of Health & Community Services (NT) v JWB & SMB [1992] HCA 15; (1992)
175 CLR 218
[80] R v.
Kovacs [2008] QCA 417; [2009] 2 Qd R 51.
[81]
Zoltan Kovacs entered a plea of guilty and was sentenced in the Queensland
District Court on 18.2.2010 and Melita Kovacs was convicted
by a jury after a
re-trial in the Queensland District Court on
14.2.2010.
[82] R v.
Kovacs [2008] QCA 417; [2009] 2 Qd R 51
[11].
[83] NSW v Ibbett
[2006] HCA 57; (2006) 229 CLR 638, 644 (Gleeson
CJ).
[84] [2010] NSWDC
310.
[85] Ibid [20] [22] [26]
[33] (Williams DCJ).
[86]
Stephens v Myers (1830) 4 Car & P 349; 172 ER 735; Rixon v Star
City Pty Ltd [2001] NSWCA 265; (2001) 53 NSWLR
98.
[87] Zanker v
Vartzokas (1988) 34 A Crim R
11.
[88] (1988) 34 A Crim R 11,
17 – 18.
[89] Rozsa v
Samuels [1969] SASR 205; Read v Coker [1853] EngR 632; (1853) 13 CB 850; 138 ER
1437.
[90] Bird v Jones
(1845) 7 QB 742; 115 ER 668.
[91]
Murray v Ministery of Defence [1988] UKHL 13; [1988] 1 WLR 692, 703 (Griffith LJ);
Myer Stores v Soo [1991] VicRp 97; [1991] 2 VR 597, 633 (Murphy J). See also Howarth, D.,
“Trespass and Intentional Interference with the Person” in Sappideen
& Vines
(Eds.) Fleming’s The Law of Torts, 10th
Edn., Lawbook Co, Sydney, 2011, Chapter
2.
[92] Schloenhardt, A., Beirne,
G and Corsbie, T., “Human Trafficking and Sexual Servitude in
Australia” [2009] UNSWLawJl 2; (2009) 32 UNSWLJ
27.
[93] Francis A Trindade,
“The Modern Tort of False Imprisonment” in Mullany, N. Ed., Tort
in the Nineties, LBC Information Services 1997, 229 - 240.
[94] Threats of force to persons
other than the plaintiff or to property have been held to be sufficient for
criminal false imprisonment:
Rv Garrett (1988) 50 SASR 392, 402 (King
CJ) and 405 (Von Doussa J). See also the Canadian decision in Chaytor v
London, New York & Paris Association of Fashion Ltd (1962) 30 DLR (2d)
527 where the court referred to a “psychological type of
imprisonment”.
[95] [2008] HCA 39; (2008)
237 CLR 1.
[96] The Queen v
Tang [2008] HCA 39; (2008) 237 CLR 1, 14 [16] (Gleeson C.J).
[97] [2007] VSCA 289; (2007) 20 VR 250, 264-265
[42] (Warren CJ, Nettle and Redlich
JJA).
[98] Watson v
Marshall [1971] HCA 33; (1971) 124 CLR 621; Symes v Mahon [1922] SAStRp 57; [1922] SASR
447.
[99] Watson v
Marshall [1971] HCA 33; (1971) 124 CLR 621, 625 (Walsh
J).
[100] [1922] SAStRp 57; [1922] SASR
447.
[101] [1922] SAStRp 57; [1922] SASR 447,
453.
[102] [2007] VSCA 289; (2007) 20 VR
250.
[103] [2007] VSCA 289; (2007) 20 VR 250,
264 [41] (Warren CJ, Nettle and Redlich
JJA).
[104] The Queen v
Tang [2008] HCA 39; (2008) 237 CLR 1, 14-15 [16] (Gleeson C.J).
[105] Ibid, 15 [16].
[106] [2007] VSCA 289; (2007) 20 VR 250, 273
[81] (Warren CJ, Nettle and Redlich
JJA).
[107] Zavala v Wal
Mart Stores Inc., 393 F. Supp 2d 334-35; Chellen v John Pickle Co.,
446 F.Supp 2d 1274-75.
[108]
Deressa v Gobena, No 05 Civ 1334, 2006 U.S.Dist.LEXIS 8659, 14-15.
See
discussion in Werner, Daniel and Kim, Kathleen, Civil Litigation on behalf of
Victims of Human Trafficking, 3rd Edn., Immigrant Justice Project, Southern
Poverty Law Center, 2008.
[109]
[1897] 2 QB 57.
[110] In
McFadzean and others v CMFEU and others [2007] VSCA 289; (2007) 20 VR 250 the Victorian
Court of Appeal awarded aggravated damages in a claim based on the rule in
Wilkinson v Downton but refused to award exemplary damages in all the
circumstances. The Court nevertheless acknowledged the possibility of an award
of exemplary damages in such a case at 286- 288 (Warren CJ, Nettle and Redlich
JJA). For discussion of the restrictions on the availability
of exemplary and
aggravated damages in tort law reform legislation in Australian jurisdictions
see below at G Tort Reform Legislation in Australian Jurisdictions and
Intentional Acts by
Defendants.
[111] The
principles of Wilkinson v Downton were adopted and applied in the
Australian High Court in Bunyan v Jordan [1937] HCA 5; (1937) 57 CLR 1, though there,
the plaintiff was unsuccessful.
[112] Nationwide News Pty
Ltd v Naidu and Anor; Iss Security Pty Ltd v Naidu and Anor [2007] NSWCA 377; (2007) 71 NSWLR
471.
[113] McFadzean and
others v CMFEU and others [2007] VSCA 289; (2007) 20 VR
250.
[114] [2001] QCA 234; (2002) 1 Qd R
474.
[115] [2001] 3 All ER
932.
[116] [2001] 3 All ER 932
at 938 (Hale LJ).
[117] [2007] NSWCA 377; (2007)
71 NSWLR 471.
[118]
Ibid.
[119] Nationwide News
Pty Ltd v Naidu and Anor; ISS Security Pty Ltd v Naidu and Anor [2007] NSWCA 377; (2007) 71
NSWLR 471, 487- 488 [76] – [82] (Spigelman
CJ).
[120] For a discussion of
the meaning of intention in tort law, see Cane, P., “Mens Rea in Tort
Law” (2000) 20 (4) Oxford Journal of Legal Studies
533.
[121] s 46 of the
Second Restatement of Torts imposes liability for
‘outrageous’ conduct causing ‘severe mental distress’
without the requirement for a
resulting physical harm or likelihood of physical
harm. For a comparative discussion see, Townshend-Smith, "Harassment as a Tort
in English and American Law: The Boundaries of Wilkinson v Downton",
(1995) 24 Anglo-American Law Review 299; Handford, P.R.
“Wilkinson v Downton and Acts Calculated to Cause Physical
Harm” (1985) 16 UWALR 31.
[122] Wong v Parkside
Health NHS Trust [2001] 3 All ER 932; Wainwright v Home Office [2003] UKHL 53; [2004]
2 AC 406.
[123] Giller v
Procopets[2008] VSCA 236; (2008) 24 VR
1.
[124] Magill v Magill
[2006] HCA 51; (2006) 226 CLR 551, 589 [117] (Gummow, Kirby and Crennan JJ).
[125] For a discussion of the
‘interesting future’ of the cause of action in Wilkinson v
Downton, see Watson, P., “Searching the Overfull and Cluttered
Shelves: Wilkinson v Downton Rediscovered” (2004) 23 University
of Tasmania Law Review
264.
[126] Nationwide News
Pty Ltd v Naidu and Anor; ISS Security Pty Ltd v Naidu and Anor [2007] NSWCA 377; (2007) 71
NSWLR 471, 486- 487 [71] – [74] (Spigelman
CJ).
[127] [1897] 2 QB
57.
[128] The modern tort of
deceit is generally acknowledged to have been first recognised in Pasley
& Anor v Freeman (1789) 3 Term Rep. 51: Prof. Fleming, The Law of
Torts 9th ed, (1998), 694 –
695.
[129] James v Hill
[2004]NSWCA 301.
[130]
Magill v Magill [2006] HCA 51; (2006) 226 CLR 551; Tresize v National Australia Bank
Ltd [2005] FCA 1095; (2005) 220 ALR 706; Pasley v Freeman (1789) 3 T 51; Derry V
Peek [1889] UKHL 1; (1889) 14 AC 337; Bradford Third Equitable Benefit Building Society
v Borders (1941) 2 All ER 205.
[131] Described in Sir John
Salmond, The Law of Torts, a Treatise on the English Law of Liability for
Civil Injuries, Stevens & Haynes, London, 1907. See comments of Gleeson
CJ in Magill v Magill [2006] HCA 51; 2006) 226 CLR 551, 561-2 referring to the "business
context in which the action on the case for deceit emerged and in which it had
and still has a
natural
place".
[132] Competition
and Consumer Act 2010 (Cth), Schedule 2, Chapter 2, Part 2-1, s. 18
prohibits misleading or deceptive conduct in trade or commerce and liability for
breach is strict. A wide range of remedies is included
in Part 5-2 in
particular, s. 237 which provides for compensation orders for persons who suffer
loss or damage as a result of conduct in contravention
of the relevant
provisions.
[133]
Competition and Consumer Act 2010 (Cth), Schedule 2, The Australian
Consumer Law.
[134] [2006] HCA 51; (2006) 226
CLR 551; Lisa Young "Sex Lies ad Money: The High Court Considers Deceit and
Paternity Fraud in Magill v Magill", (2007) 15 Torts Law Journal
1.; Lisa Young & Stephen Shaw, Magill v Magill: Families and
Deceit (2005) 19 Australian Journal of Family Law
44
[135] There is an
English case where the claim was allowed: P v. B (Paternity: Damages for
Deceit) [2001] 1 FLR
1041.
[136] Magill v
Magill [2006] HCA 51; (2006) 226 CLR 551, 574-575 (Gummow, Kirby and Crennan JJ) and 622-
623 (Heydon J
dissenting).
[137] Magill v
Magill [2006] HCA 51; (2006) 226 CLR 551, 568 -569 (Gleeson CJ), 594 (Gummow, Kirby and
Crennan JJ) ,596 (Hayne
J)
[138] Gould v
Vaggelas (1985) 157 CLR 215, 236 (Wilson
J).
[139] Clark v Urquhart
[1930] AC 28, 68 (Lord Atkin) cited in Magill v Magill, [2006] HCA 51; (2006) 226
CLR 551 567-568 [40] (Gleeson CJ); see also Alderson v Public Transport
Corporation [2001] VR 499 where a plaintiff recovered damages for personal
injury in a deceit claim arising out of events concerning the termination of
the
plaintiff’s
employment.
[140] (1986) 160
CLR 1, 12 (Mason, Wilson & Dawson
JJ).
[141] [2004] HCA 5; (2001) 218 CLR 366,
408 [63]- [65].
[142] This is
the view of the English courts: Smith New Court Securities Ltd v Scrimgeour
Vickers [1996] UKHL 3; [1997] AC
254.
[143] Gould v
Vaggelas (1984) 157 CLR 215;Magill v Magill [2006] HCA 51; (2006) 226 CLR 551;
Aldersea v Public Transport Corporation [2001] VR
499.
[144] Doyle v Olby
Ironmongers Ltd [1969] EWCA Civ 2; [1969] 2 QB
158.
[145] Williams v
Hursey [1959] HCA 51; (1959) 103 CLR
30.
[146] Williams v Hursey
[1959] HCA 51; (1959) 103 CLR 30; Fatimi Pty Ltd v Bryant [2004] NSWCA 140; (2001) 59 NSWLR 678,
681.
[147] J. D. Heydon,
Economic Torts, 2nd Ed., Sweet & Maxwell, London,
1978.
[148] Allen v
Flood [1898] AC 1; Mogul Steamship Co Ltd v MacGregor Gow & Co
[1892] AC 25.
[149] Quinn v
Leathem [1901] UKHL 2; [1901] AC
495.
[150] See discussion in P.
Edmundson, "Conspiracy by Unlawful Means: Keeping the Tort Untangled" (2008) 16
Torts Law Journal 189; Deakin & Randall “Rethinking the
Economic Torts” (2009) 72 MLR 519; R.P. Balkin & J.L.R. Davis
Law of Torts, 4th edn, LexisNexis Butterworths, Sydney 2009, [21. 43]
– [21.56]; Heffey, “The Survival of Civil Conspiracy” [1975] MonashULawRw 2; (1975) 1
Monash U. L.R.
136.
[151] Fatimi Pty
Limited v Bryant [2004] NSWCA 140; (2004) 59 NSWLR
678.
[152] There was a claim
for unlawful means conspiracy by the plaintiffs inthe English case of AT v
Dulghieru [2009] EWHC 225 (QB), though there was no hearing of the
substantive claim as to
liability.
[153] Sorrell v
Smith [1925] AC 700, 716, Lord Dunedin ; Galland v Mineral Underwriters
Ltd [1977] WAR 116; Mc Kellar v Container Terminal Management Services
Ltd (199) [1999] FCA 1101; 165 ALR 409 all of which held that a conspiracy to injure the
plaintiff by way of commission of a tort was no more than an example of a case
of joint tortfeasors and that therefore the claim for the conspiracy was
superfluous.
[154] Williams
v Hursey [1959] HCA 51; (1959) 103 CLR 30, 78-9, Fullagar J (with whom Dixon, CJ &
Kitto concurred) and see discussion at R.P. Balkin & J.L.R. Davis Law
of Torts 4th edn, Lexis Nexis Butterworths, Sydney 2009, [21.50]
– [21.54].
[155]
Migration Act 1958 (Cth), s. 234; Criminal Code (Cth), s 135 (1)
(7). In R v Yogalingam Rasalingam, unreported, District Court of NSW,
Puckeridge DCJ, 2 November, 2007, the defendant was convicted of an offence of
“misleading
a Commonwealth official in the immigration process”
– s. 135.1 Criminal Code 1995 (Cth).
[156] In Australia various
types of unlawful act have been held to be sufficient to ground an action in
conspiracy by unlawful means, including
breaches of conveyancing legislation and
the corporations law (Fatimi Pty Ltd v Bryant [2004] NSWCA 140; (2004) 59 NSWLR 678, 683 -5
(Handley J, McColl JA agreeing); receiving a secret commission (Coomera
Resort Pty Ltd v Kolback Securities Ltd [2004] 1 Qd R 1,37); breach of
directors duties (Chen v Karandonis [2002] NSWCA 412 [28]). However,
Campbell J, at first instance in Fatimi Pty Ltd v Bryant [2002] NSWSC
750 [193], expressed the view that to allow all types of statutory breach to
ground an action in tortious conspiracy might be too broad
an
approach.
[157] This was so for
the 11 Thai victims in the Netthip case who made false claims for refugee
status under Australian Immigration law: R v Netthip [2010] NSWDC
159.
[158] [2008] UKHL 19; [2008] 1 AC
1174.
[159] For an Australian
authority on this point: Dresna v Misu Nominees [2003] FCA
1537.
[160] Meretz
Investments NV v ACP Ltd [2008] Ch
244.
[161] There may of course
be difficulties in enforcing remedies across borders. See discussion following
at G Pyrrhic Victories: Enforcing Judgments against
Traffickers.
[162]
Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30, 78-9, Fullagar J (with whom Dixon, CJ
& Kitto concurred) and see discussion at R.P. Balkin & J.L.R. Davis,
Law of Torts 4th edn, Lexis Nexis Butterworths, Sydney 2009,
[21.50] – [21.54].
[163]
In Sorrel v Smith [1925] AC 700, 716, Lord Dunedin held “if a
combination of persons to do what if done by one would be a tort, an averment of
conspiracy
so far as founding a civil action is mere surplusage”. This
statement has been cited with approval in the High Court in Cabassi v
Vila [1940] HCA 41; (1940) 64 CLR 130, 143,151 and O’Brien v Dawson [1942] HCA 8; (1942) 66
CLR 18, 27.
[164] See
discussion in J.W. Neyers, “The Economic Torts as Corrective
Justice” (2009) 17 Torts Law Journal 162; Peter G. Heffey,
“The Survival of Civil Conspiracy: A Question of Magic or Logic”
(1975) Monash ULR 136; R.P. Balkin & J.L.R. Davis, Law of
Torts 4th edn, Lexis Nexis Butterworths, Sydney 2009, [21.
52].
[165] Latham v
Singleton [1981] 2 NSWLR 843, 875-8 (Nagle CJ at CL); Ansett v Air Pilots
(No 2) [1991] VicRp 98; [1991] 2 VR
636.
[166] The Commonwealth
Review of the Law of Negligence, Panel of Eminent Persons, Review of the Law
of Negligence Report, 2 October 2002 (The Ipp Report) (http://revofneg.treasury.gov.au)
13.165, recommended a provision which would abolish exemplary and aggravated
damages in respect of negligently caused personal
injury and such a provision
was enacted in Civil Liability Act 2002 (NSW) s21, Civil Liability
Act 2003 (Qld) s 52 Qld, Personal Injuries (Liabilities & Damages)
Act 2003 (NT) and Competition and Consumer Act 2010 (Cth) s 87ZB. The
award of exemplary damages is also prohibited in NSW by the Workers
Compensation Act 1987 (NSW) in respect of workplace injuries and the
Motor Accidents Compensation Act 1999 (NSW) s 144 in respect of motor
accident claims.
[167]
Civil Liability Act 2002 (NSW), s. 21; Civil Liability Act 2003
(Qld), s. 52.
[168] Personal
Injuries (Liabilities and damages) Act 2003 (NT), s 19.
[169] Discussed by Spigelman,
The Hon J. Chief Justice, Supreme Court of NSW, “Negligence: Is
Recovery for Personal Injury too Generous?” http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_spigelman140905.
[170]
The reform legislation was based on the recommendations of The Commonwealth
Review of the Law of Negligence, Panel of Eminent Persons:
Commonwealth
Review of the Law of Negligence: Final report , 2 October, 2002, (the Ipp
Review) http://revofneg.treasury.gov.au
[171]
Civil Liability Act 2002 (NSW); Civil Liability Act 1936 (SA)
;Civil Liability Act 2003 (QLD); Civil Liability (Wrongs) Act 2002
(ACT); Personal Injuries (Liabilities and Damages) Act 2003 (NT);
Civil Liability Act 2002 (Tas); Wrongs Act 1958 (Vic); Civil
Liability Act 2002
(WA).
[172] In S.A. the
legislation applies only to “accidents caused wholly or in part by
negligence or some other unintentional tort”: Civil Liability Act
1936 (SA) s. 51(a) (ii). In Queensland the Civil Liability Act 2003 (QLD)
applies to “any civil claim for damages or harm” so that apparently
the intentional torts are not excluded
thought it has been argued that the
relevant provisions can be interpreted otherwise: Cockburn, T & Madden, B,
“Intentional
Torts to the Person, Compensation for Injury and the Civil
Liability Acts – Recent cases and Contemporary Issues” (2007)
18
Insurance law Journal 1. Similar approaches apply in Civil Liability
(Wrongs) Act 2002 (ACT), s. 93 and Personal Injuries (Liabilities and
Damages) Act 2003 (NT) s. 4(1). Provisions in Civil Liability Act
2002 (Tas), s. 3B(1)(a) and Wrongs Act 1958 (Vic), s, 28C (2)(a) &
28LC(2)(a) and Civil Liability Act 2002 (WA) , s.3B(1) all take an
approach similar to the NSW legislation excluding intentional acts done with
intent to cause injury.
[173]
Civil Liability Act 2002 (NSW), s. 3B (1) (a).
[174] A similar prohibition
exists in the Northern Territory: Personal Injuries (Liabilities and Damages)
Act 2003 (NT) s 19; and Queensland: Civil Liability Act 2003 (QLD) s.
52.
[175] Civil Liability
Act 2002 (Tas), s. 3B(1)(a); Wrongs Act 1958 (Vic), s, 28C (2)(a)
& 28LC(2)(a); Civil Liability Act 2002 (WA) ,
s.3B(1).
[176] NSW v
Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168, [33], [43] (Spigelman CJ); [129] (Ipp
JA).
[177] [2005] NSWSC 107.
There was an appeal on other issues relating to negligence and assessment of
damages.
[178] [2005] NSWSC 1053; [2005] Aust
Torts Reports 81-816.
[179]
[2005] NSWCA 445; (2005) 65 NSWLR 168.There was an appeal to the High Court on other issues: NSW v
Ibbett [2006] HCA 57; (2006) 229 CLR
638.
[180] NSW v Ibbett
[2005] NSWCA 445; (2005) 65 NSWLR 168, 171.
[181]
Ibid 175.
[182] Ibid
184.
[183] Civil Liability
Act 2002 (Tas), s. 3B(1)(a); Wrongs Act 1958 (Vic), s, 28C (2)(a)
& 28LC(2)(a); Civil Liability Act 2002 (WA) ,
s.3B(1).
[184] Broome v
Cassell & Co Ltd [1972]
1085.
[185] Lamb v Cotogno
[1987] HCA 47; (1987) 164 CLR 1,
8.
[186] State of NSW v
Corby [2010] NSWCA
27.
[187] NSW v Ibbett
[2006] HCA 57; (2006) 229 CLR 638, 646 – 7 (Gleeson, CJ, Gummow, Kirby, Heydon &
Crennan JJ).
[188] Whitfield
v De Lauret & Co Ltd (1920) 20 CLR 71, 81 (Isaacs
J).
[189] Uren v John
Fairfax & Sons Limited [1966] HCA 40; (1966) 117 CLR
118.
[190] Rookes v
Barnard [1964] UKHL 1; [1964] AC 1129.
[191] [2009] EWHC 225
(QB).
[192] Tsachi Keren-Paz
refers to email correspondence with the plaintiff’s solicitors in which it
was disclosed that the first defendant
had filed a defence whilst the second did
not defend. Summary judgment was ordered against both defendants: “AT v
Dulghieru – compensation for victims of trafficking, but where is the
restitution?” (2010) 18 Torts Law Journal 87 at 89. See also by the
same author "An Essay on Banalization of Slavery, Devaluation of sex-workers
Labour and Deprivation of Victims of trafficking", Concord research
Institute for Integration of International Law in Israel, available at SSRN
– http://tinyurl.com/yhuocyt. See
also O’Driscoll, Anne, “AT v Dulghieru: Accounting for the
Profits of Sex Trafficking” (2010) 40 Vict. U. Wellington L. Rev.
695.
[193] [2009] EWHC 225,
233.
[194]
Ibid.
[195] [1964] UKHL 1; [1964] AC
1129
[196] [2009] EWHC 225,
234.
[197] Relying on
Borders (UK) Ltd & Ors. V Commissioner of Police of the Metropolis
[2005] EWCA Civ 187.
[198]
[2009] EWHC 225, 234.
[199]
Ibid 235, referring to Borders (UK) Ltd & Ors. V Commissioner of Police
of the Metropolis [2005] EWCA Civ
187.
[200] [1966] HCA 37; (1966) 117 CLR
185.
[201] [1966] HCA 37; (1966) 117 CLR
185.
[202] Uren v John
Fairfax & Sons Limited [1966] HCA 40; (1966) 117 CLR 118, 129 (Taylor
J).
[203] Uren v John
Fairfax & Sons Limited [1966] HCA 40; (1966) 117 CLR 118, 154 (Windeyer
J).
[204] Musca v Astle
Corportaion Pty ltd [1988] FCA 4; (1988) 80 ALR
251.
[205] Williams v
Hursey [1959] HCA 51; (1959) 103 CLR
30.
[206] Henry v
Thompson [1989] 2 Qd R
412.
[207] AW v State of
NSW [2005] NSWSC 543. For commentary see Cockburn, T & Madden, B,
“Intentional Torts to the Person, Compensation for Injury and the Civil
Liability
Acts - Recent Cases and Contemporary Issues” (2007)18
Insurance Law Journal
1.
[208] NSW v Ibbett
[2006] HCA 57; (2006) 229 CLR 638 [35]-[36]. (Gleeson CJ, Gummow, Kirby, Heydon &
Crennan JJ).
[209] XL
Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR
448.
[210] Gray v Motor
Accident Commission (1998) 196 CLR 1 [97] (Kirby
J).
[211] [2009] EWHC 225, 235
(Treacy J).
[212] See
discussion of the relationship between restitutionary and exemplary damages in
the context of a ‘proprietary tort’
in Phang, A & Lee, P-W.,
“Restitutionary and Exemplary Damages Revisited” (2003) 19
Journal of Contract Law 1. More generally, see Tilbury, Michael,
“Reconstructing Damages” (2003)MULR 28. There is also the
possibility of the equitable remedy of an account for profit in cases of unjust
enrichment: Attorney General v Blake [2000] UKHL 45; [2001] 1 AC 268; Worthington, Sarah,
“Reconsidering Disgorgement For Wrongs” (1999) 62 MLR
218.
[213] Law Council of
Australia, Submission, Consultation on the Criminal justice Response
to Slavery and People Trafficking; Reparation and Vulnerable Witness
Protections, 30 March, 2011, 27. www.lawcouncil.asn.au.
[214]
NGOs include the Anti Slavery Project at UTS, Australian Red Cross, Salvation
Army, Sisters of St Joseph, Scarlett Alliance, ACRATH,
and Project Respect: See
Australian Government, Trafficking in Persons: The Australian Government
Response 1 May 2009 – 30 June 2010, The Second Report Of The
Anti-People Trafficking Interdepartmental Committee (2010) Canberra,
39.
[215] Zimmerman, C et Al.,
Stolen Smiles: A Summary report on the Physical and Psychological
Health Consequences of Women & Adolescents Trafficked in Europe, The
London School of Hygiene and Tropical Medicine, 2006.
[216] Larsen, Lindley &
Putt, Trafficking in Persons Monitoring Report, July 2001 – December
2008, Australian Institute of Criminology, AIC Reports, Monitoring Reports
06, www.aic.gov.au.
[217]
[2008] HCA 39; (2008) 237 CLR 1, at 12 -13 per Gleeson
CJ.
[218] Court Procedure
Rules 2006 (ACT) Div.2.8.6 Preliminary Discovery; Supreme Court Rules
1987 (NT), Order 32 Preliminary Discovery and Discovery from Non-Party;
Supreme Court Rules 2000 (Tas), Pt 13 Div 2A Preliminary Discovery and
Discovery from Non-Party; Federal Court Rules 1979 (Cth), Order 15A
Preliminary Discovery and Discovery from Non-Party; Supreme Court (General
Civil Procedure) Rules 2005 (Vic), Order 32 Preliminary Discovery and
Discovery from a Non-Party; Supreme Court (Civil Rules) 2006 (SA) Chapter
3, Part 2, Rule 32,Investigation; Rules of the Supreme Court 1971
(WA),Order 26A Rule 3, Discovery etc. from Non-Parties and Potential
Parties.
[219] Australian
Government, Attorney General’s Department, Discussion Paper, The
Criminal Justice Response to Slavery and People Trafficking; Reparation; and
Vulnerable Witness Protections, 2010, 18-19.
[220] For example, Does I
v. Gap Inc., No.01 Civ. 0031, 2002 WL 1000068 at 19-20 where in a
trafficking case, agency between a retailer and a manufacturer was held to be
properly pleaded. See discussion in Werner, Daniel and Kim, Kathleen, Civil
Litigation on behalf of Victims of Human Trafficking, 3rd Edn, Immigrant
Justice Project, Southern Poverty Law Center, 2008. http://library.lls.edu/atlast/HumanTraffickingManual_web.pdf
[221]
See the discussion regarding labour hire arrangements in Australian Government,
Attorney General’s Department, Discussion Paper,
The Criminal Justice
Response to Slavery and People Trafficking; Reparation; and Vulnerable Witness
Protections,
2010,18-19.
[222] Migration
Regulations 1994 (Cth), Schedule 2, Provisions with Respect to the Grant of
Subclasses of Visas, Subclass 060 Bridging F. For comment see J. Burn & F.
Simmons, “Prioritising Protection – A New Visa Framework for
Trafficked People”, (2009) Immigration Review, Bulletin 41, 3.
[223] Anne T Gallagher,
“The Right to an Effective Remedy for Victims of Trafficking in Persons: A
Survey of International Law and
Policy”, United Nations Office of the
High Commissioner for Human Rights 2010.
http://works.beepress.com/anne_gallagher/14
[224]
Court Procedure Rules 2006 (ACT) Div 2.17.8 Security for Costs;
Supreme Court Rules 1987 (NT), Order 62 Security for Costs; Supreme
Court Rules 2000 (Tas), Pt 34 Div 2, Security for Costs; Federal Court
Rules 1979 (Cth), Order 28 Security for Costs; Supreme Court (General
Civil Procedure) Rules 2005 (Vic), Order 62 Security for Costs; Supreme
Court (Civil Rules) 2006 (SA) Chapter 7, Part 14, Security for Costs;
Uniform Civil Procedure Rules 1999 (Qld),Chapter 17, Part 1 Security for
Costs; Rules of the Supreme Court 1971 (WA), Order 25 Security for Costs;
Rules of the Supreme Court 1971 (WA), Order 25 Security for
Costs.
[225] Jodast Pty Ltd
v Blattner Pty Ltd (1991) 104 ALR 248; Oshlack v Richmond River
Council [1998] HCA 11; (1998) 193 CLR
72.
[226] Uniform Civil
Procedure Rules 2005 (NSW), Rule 42.21 (1)
(a).
[227] Pearson v
Naydler [1977] 1 WLR 899, 902 (Megarry
VC).
[228] Pearson v
Naydler [1977] 1 WLR 899; Cowell v Taylor (1885) 31 Ch D 34;
Jazabas Pty Ltd v Haddad [2007] NSWCA 291; Hession v Century 21 South
Pacific Ltd (in liq) (1992) 28 NSWLR
120.
[229] Idoport Pty Ltd v
National Australia Bank Ltd [2001] NSWSC 744 [47] (Einstein
J).
[230] Idoport Pty Ltd v
National Australia Bank Ltd [2001] NSWSC 744 [2] [35] [60] (Einstein
J).
[231] Bhagat v
Murphy [2000] NSWSC 892 [20] - [21] (Young
J).
[232] Fiduciary Ltd v
Morningstar Research Pty Ltd [2004] NSWSC 664; (2004) 208 ALR 564.
[233] Lynnebry Pty Ltd v
Farquhar Enterprises Pty Ltd (1977) 3 ACLR 133, 135-136 (Meares
J).
[234] Amalgamated Mining
Services Pty Ltd v Warman International Ltd [1988] FCA 309; (1988) 19 FCR
324.
[235] XL Shipyard v The
Ship “Falcon Trident” [2006] FCA 759; Gujarat NRE Australia
Pty Ltd v Williams [2006] NSWSC 992 ; Corby v Channel Seven Sydney Pty
Ltd [2008] NSWSC 245.
[236]
Riot Nominees Pty Ltd v Suzuki Australia Pty Ltd [1981] FCA 43; (1981) 52 FLR 265;
Andrews v Caltex Oil (Aust) Pty Ltd [1982] FCA 42; (1982) 60 FLR
261.
[237] Idoport Pty Ltd v
National Australia Bank Ltd [2001] NSWSC 744, [68] (Einstein
J).
[238] Devenish v Jewell
Food Stores Pty Ltd [1990] HCA 35; (1990) 64 ALJR
533.
[239] PM Sulcs and
Assoc Pty Ltd v Daihatsu Aust Pty Ltd [2000] NSWSC
826.
[240] Yandil Holdings
Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542, 545 (Clarke J);
Weston v Beaufils [1993] FCA 331; (1993) 43 FCR
292.
[241] Barton v Minister
for Foreign Affairs (1984) FCR 463, 468 (Morling J); Logue v Hansen
Technologies Ltd [2003] FCA 81, [24] (Weinberg
J).
[242] [2008] NSWSC 245. See
also O’Keefe v Seafresh Holdings Pty Ltd [2009] NSWSC
1090.
[243] [2008] NSWSC 245
[35] (McCallum J).
[244] Ibid
[39] (McCallum J).
[245] Fiona
David, Prosecuting trafficking in Persons: Known Issues, Emerging Responses,
Australian Institute of Criminology, Trends and Issues in Crime
and Criminal
Justice, Australain Institute of Criminology, No. 358, June 2008.
http://www.aic.gov.au
[246]
Ibid.
[247] Evidence Act
1939 (NT), s 26A; Evidence Act 1977 (Qld), ss 78-82; Evidence
Act 1929 (SA), s 34A; Evidence Act (1995) (Cth), s 103, 104;
Evidence Act 1995 (NSW), s 103, 104; Evidence Act 2001 (Tas), s
103, 104; Evidence Act 2008 (Vic), s 103, 104.
[248] Hollington v F
Hewthorn & Co Ltd [1943] KB 587 though, in Western Australia the
position is different: Mickelberg v Director of Perth Mint [1986] WAR
365.
[249] Evidence Act
1939 (NT), s 26A; Evidence Act 1977 (Qld), ss 78-82; Evidence
Act 1929 (SA), s 34A.
[250]
Evidence Act (1995) (Cth), s 91 (1); Evidence Act 1995 (NSW), s
91(1); Evidence Act 2001 (Tas), s 91(1); Evidence Act 2008 (Vic),
s 91(1).
[251]
Evidence Act (1995) (Cth), s 92 (2); Evidence Act 1995 (NSW), s
92(2); Evidence Act 2001 (Tas), s 92(2); Evidence Act 2008 (Vic),
s 92(2).
[252] Proceeds of
Crime Act 2002 (Cth), s.
298.
[253] Australian
Government, Attorney Generals Department, Crime Prevention, Overview of the
Proceeds of Crime Act 2002.
http://www.ema.gov.au/agd/WWW/ncphome.nsf/Page/POCA_funding_for_Non-Government_Agencies
[254]
Calls for reform have been made by the Anti Slavery Project, University of
Technology Sydney: Strengthening Australia’s Response to Human
Trafficking: Report to the Australian Women’s Coalition, 30 March,
2010, p.30. www.antislavery.org.au
.
[255] Powers of Criminal
Court (Sentencing) Act 2000 (UK), s.
145.
[256] Proceeds of Crime
Act 2002 (UK), s. 13(6).
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/UTSLRS/2011/3.html