2020’s High Court Developments for the Law of Damages

by Michael Douglas Consultant, Bennett + Co and Senior Lecturer, University of Western Australia and Jess Border, Solicitor, Bennett + Co

2020 was not ideal. We need to appreciate silver linings when we come across them. Here is a shiny one: in 2020, Australian courts produced a number of interesting decisions on damages. Here, we look at three crackers from the High Court: Berry, Lewis and Moore.

This article concerns the ‘law of damages’ in the sense of the law concerning awards of money for civil wrongs.1 So understood, this body of law captures more than common law damages for common law causes of action. We live in an age of statutes,2 and so several of 2020’s leading cases within the ‘law of damages’ concern matters of statutory interpretation.

Damages under the Australian Consumer Law

The prohibition on misleading or deceptive conduct in s 18 of the Australian Consumer Law (ACL)3 has had an ‘extraordinary, and even revolutionary, impact on Australian law’.4 Where a person suffers loss or damage because of prohibited misleading or deceptive conduct, then under ACL s 236, that person ‘may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention’.

These provisions are frequently litigated before Australian courts. Given their regular consideration, one would think that their meaning would be settled. However, in relation to an action for damages under ACL s 236, courts have vacillated on the appropriate measure of damages.5 The question is one of statutory meaning. The starting point is the text of the statute,6 construed in light of its context and purpose.7 Textual references to ‘loss or damage’ and ‘damages’ suggest that the measure of ‘damages’ under ACL s 236 ought to build upon principles relating to damages in non-statutory contexts.8 This construction rightly situates the statutory text within its broader context of the state of the law upon the section’s enactment.9 Thus French J, as his Honour was, once held that awards under predecessor provisions are ‘essentially compensatory in character’.10 In Henville v Walker,11 McHugh J, Gummow and Hayne JJ held that common law measures of damage for actions in tort and contract will often be of ‘great assistance’ in determining the appropriate measure of compensation for misleading or deceptive conduct.12 Courts often determine the measure of damages for ACL s 236 claims by analogy to the tort of deceit.13 Like other claims in tort, damages for deceit aim to put the plaintiff in the position they would have been had the representation not been made.14 Yet, as Treitel once said, ‘there is more than one way of “not committing” the tort of deceit’.15 Moreover, courts are not required to take the deceit approach; in certain contexts, a different measure, like that applicable to negligent misstatement, will be more appropriate.16 The policy of the law of negligent misstatement is more apt to the arms-length relationship underlying many cases concerning failed businessto-business transactions, and the purpose behind the creation of the ACL (inter alia, encouraging fair competition in a market economy) that must inform the construction of s 236.17 In a commercial context, parties should take some responsibility for protecting their own interests.18 Courts are not bound to make a definitive choice between competing measures of damages.19 As Gleeson CJ said in Henville, the court’s ‘task is to select a measure of damages which conforms to the remedial purpose of the statute and to the justice and equity of the case’.20 The appropriate measure is not even to be confined by analogy to actions in contract or tort.21 In the words of Gummow J, analogy ‘is a servant not a master’.22 Overreliance on previous case consideration of the appropriate measure of damages under s 236 risks transforming the text of the statute into case law—a tendency cautioned against by Justice Leeming.23 The malleability of the measure of damages under ACL s 236 provides opportunity for interesting case developments. One such development is the Berry case.

Berry v CCL Secure Pty Ltd24

In August, the High Court provided an important decision on ss 52 and 82 of the Trade Practices Act 1974 (Cth)—the predecessor provisions to ACL ss 18 and 236. It considered an interesting question: where a party terminates a contract in contravention of the ACL, can that wrongdoer minimise the measure of loss via the argument that, but for the contravention, they would have terminated the contract lawfully?25 The appeal was brought by Dr Berry, a successful entrepreneur, and a company controlled by him. The appellants were party to an agency agreement with Securency (now CCL Secure), a joint venture vehicle which achieved the successful commercialisation of the production and printing of polymer bank notes in the 1990s.

Securency had engaged the appellants for the purposes of cultivating a business relationship between itself and the

Nigerian government. Under the agency agreement, the appellants were entitled to a 15% commission on the net invoiced sale value of opacified polymer to the Nigerian government. But Securency ‘hatched a surreptitious plan’26 to replace the appellants and avoid the cost of their commission. One of Securency’s directors engaged in misleading or deceptive conduct by deliberately deceiving Dr Berry into signing a termination notice in 2008, terminating the agency agreement while keeping up the pretence that the appellants were still agents. In proceedings before the Federal Court27 the parties accepted that, if there were misleading or deceptive conduct, the appropriate measure of loss would be the commissions payable had the agency agreement not been terminated due to misleading or deceptive conduct. The parties disagreed on what commissions would be payable—that is, they disagreed on the character of the counterfactual.

The appellants had argued that the agency agreement would have been automatically renewed, as provided for in its terms. They argued that the agreement would have continued until at least 2010, when Securency terminated all of its agency agreements following bribery allegations. Securency countered that, but for the wrongful conduct, it would have terminated the agreement lawfully with notice, which was also available under the agreement. The primary judge favoured the appellants’ view.28 The Full Court saw the matter differently, holding that, in assessing the appropriate measure of compensation under TPA s 82, the Court should have considered what would otherwise have been done had the wrong not occurred, on the balance of probabilities.29 They inferred from the absence of evidence of substantive involvement of the appellants in Securency’s business in 2008 that Securency would have lawfully terminated the contract with notice in 2008.

Before the High Court the proper approach to the onus of proof was central. Bell, Keane and Nettle JJ explained:

As claimants under s 82 of the TPA, Dr Berry and GSC generally bore the legal burden of establishing the existence and amount of the loss or damage that they suffered by Securency’s misleading or deceptive conduct in contravention of s 52 of the

TPA. That entailed establishing the net “value or worth of the rights and benefits” that they surrendered upon Dr Berry signing That a plaintiff must establish the elements of their cause of action is trite. The proposition is simple but its application in a particular case may be difficult. For example, causation is an element of a claim for damages for misleading or deceptive conduct; that is, the damage must be suffered ‘by’ the contravening conduct.31 But counterfactual theories of causation require appeal to a state of affairs that never existed—how do you prove what never was?31 The evidentiary tools of civil litigation are a blunt instrument to solve such metaphysical problems.33 Moreover, in certain circumstances, the practical burden of introducing evidence probative of an important fact may shift.34 The majority explained: where, as here, it is established on the balance of probabilities that a wrongdoer purposely chose to achieve a certain result by means of a calculated deceit, the natural inference is that the wrongdoer was not and would not have been prepared to bring about that result by lawful means… So, in the absence of contrary evidence, it may be inferred that the reason for engaging in the fraud was sufficient to dissuade the fraudster from proceeding by lawful means.

The evidential burden thereupon shifts to the fraudster to adduce evidence sufficient to establish that, if it had not acted as it did, it would have been prepared to bring about the same result by lawful means. And in the absence of such evidence, it is fair to infer that there was not a realistic possibility of that occurring.35 The majority concluded that Securency had not discharged the evidential burden to prove it would have lawfully terminated the contract. The appellants thus succeeded, undoing the Full Court’s decision.

Gageler and Edelman JJ characteristically provided additional reasons in support of the same conclusion. Their Honours provided a helpful reminder of the malleable measure of damages for misleading or deceptive conduct:

Given that the only action on which Dr Berry and GSC succeeded against Securency was an action under s 82 of the

Trade Practices Act 1974 (Cth) to recover the amount of the loss which Dr Berry and GSC claimed to have suffered by conduct of Securency in breach of s 52 of that Act, the findings of the primary judge couched in the conclusory language of a common Their Honours also emphasised the importance of pleading to the question of the appropriate measure of damages. Had the appellants pleaded their damage in terms of a loss of value of contractual rights, their burden may have been easier; instead they framed the pleaded damage in terms of a loss of commission, a somewhat more difficult task.37

The intersection of the remedial principles with those concerning practice and procedure should make Berry a case that will be cited frequently in commercial litigation.

Vindicatory damages

Common law damages aim to compensate. Yet in various situations, damages awards may serve other purposes. In defamation law, for example, damages may be awarded to ‘vindicate’ the plaintiff’s reputation: that is, as a signal to the public that a wrong has occurred.38 More than a decade ago, Professors Witzleb and Carroll explained that damages awards for several other torts—including trespass and negligence—may have a vindicatory character.39 The 20th edition of McGregor on Damages, edited by Justice Edelman, describes ‘vindicatory damages’ as a ‘controversial’ type of damages unconcerned with loss.40 They are awarded in response to the infringement of a right,41 like a right to privacy. In Mosley v News Group Newspapers Ltd, for example, Eady J explained that damages for an infringement of privacy were available to afford ‘some degree of solatium to the injured party’.42 Other English cases concerning the tort of misuse of private information43 have similarly awarded damages of a vindicatory nature.44 Unfortunately, despite a close call in Smethurst v Commissioner of Police, 45 that tort is still not recognised in Australian law. The instances where vindicatory damages seem to be awarded overseas involve infringements of personality rights: rights to reputation and privacy.46 These rights are justified on various bases, including the value of dignity and autonomy.47 A tort with a similar rationale is false imprisonment. The tort is actionable per se; does that mean that a court may award substantial damages, purely to provide a plaintiff with vindication? This is a controversial issue,48 which the High Court considered in Lewis.

The appellant, Lewis, failed to comply with a sentence of periodic detention to be served on weekends. He was notified by the Sentence Administration Board of an inquiry on point, which he then failed to attend. Lewis’ periodic detention was cancelled by the Board under statute; he was arrested and imprisoned for 82 days. Lewis successfully challenged the cancellation of his periodic detention on the basis that he was denied procedural fairness by the Board. Lewis was granted bail pending the hearing of that challenge and was never ultimately required to serve his initial sentence of periodic detention. In the proceedings before the High Court, Lewis sought substantial or vindicatory damages for false imprisonment for the 82 days of imprisonment that he had served before being granted bail. Lewis articulated three bases upon which he sought damages from the Australian Capital Territory as a result of the false imprisonment: 1. damages for infringement of his right to liberty (independently of any consequences of that infringement); 2. an award of ‘vindicatory damages’ to vindicate his right to liberty;49 and 3. an award of compensatory damages for the adverse consequences, or non-pecuniary loss, that he experienced by being deprived of his liberty for 82 days. Across four separate sets of reasons, the appeal was dismissed. Gordon J and Edelman J each provided extensive consideration to the substantive legal issues.

Gordon J drew a distinction between liability and the loss which flows from such liability.50 Her Honour emphasised that there is ‘no role for a counterfactual analysis’ on the question of liability for the tort of false imprisonment,51 but such analysis is necessary in the assessment of the calculation of loss.52

Her Honour identified Lewis’ failure to distinguish between questions of liability and remedy as a flaw in his argument,53 and Lewis’ reliance on authorities in which tortious conduct led to an award of damages with no counterfactual analysis as ‘misplaced’.54 The fact that the counterfactual demonstrated that Lewis’ imprisonment was inevitable was key to her reason; her Honour noted that, ‘absent loss or injury, there is nothing to compensate’.55 Her Honour also rejected the contention that vindicatory damages were available stating, ‘[t]here is no need, nor is there any basis in principle, for the Court to recognise a separate head of vindicatory damages. Existing remedies are sufficient’.56 Her Honour identified exemplary damages,57 nominal damages,58 declarations,59 and indemnity costs60 as ‘weapons’ which could operate to vindicate a plaintiff’s rights where necessary. Edelman J commenced his reasons by identifying the two ways the compensatory principle operates to remedy a wrong: to rectify the wrongful act, or provide further compensation needed for adverse consequences suffered by the victim.61 His Honour rejected the argument that substantial damages are always available for false imprisonment as an act that is actionable per se on the basis that a right has been infringed, calling such a concept a ‘radical, novel, and fascinating re-interpretation of the law’.62 Lewis’ attempt to rely on the ‘user fee’ principle (which allows the court to rectify a wrongful act by ordering the defendant to pay an amount which would have made the act lawful)63 was rejected: ‘[Lewis’] consent was irrelevant to the lawfulness of the act and his imprisonment by statute could never have been a matter the subject of a monetary payment for permission’.64 None of the authorities65 relied upon by Lewis were accepted by Edelman J as supporting Lewis’ position. His Honour also rejected the submission that vindicatory damages were available to Lewis. After briefly considering the likely origin of such damages in the law of defamation, Edelman J stated:66 if the plaintiff’s general reputation was so poor prior to the publication that the statement or implication could do no further injury then this element of ‘vindication’ would require only nominal damages. The same is true of infringement of a right by an act of assault or false imprisonment where no loss is suffered: ‘the law vindicates that right by awarding nominal damages’. (While historically, nominal damages could be awarded for defamation,67 recent authority on existence of a common law ‘threshold of seriousness’ suggests that in this kind of defamation case, there would be no tort at all;68 thus, vindication in defamation is now only achieved through substantial damages. In any event, that authority will soon be rendered moot with acceptance of the 2020 Uniform Defamation Amendment Provisions, which render serious harm an element of the tort.)69 His Honour appeared to accept that, in exceptional circumstances, it may be necessary to abolish the causal requirement that the wrongdoing must be necessary for the loss,70 but ultimately, no such circumstance applied in this case. As for Kiefel CJ and Keane J, their Honours predominantly aligned with Edelman J’s reasons, particularly highlighting their approval of the fact that ‘the notion that “vindicatory damages” is a species of damages that stands separately from compensatory damages draws no support from the authorities and is insupportable as a matter of principle’.71 The ultimate basis for their Honours decision was that Lewis had not ‘suffered any real loss at all’72 as he had not been deprived of ‘a moment of freedom from imprisonment that he was legally entitled to enjoy’. As Lewis’ right to freedom was ‘circumscribed by the demands of justice expressed in the sentence of imprisonment to which he was subject’73 he was not ‘lawfully at large’ when he was taken into custody and therefore did not suffer any loss. Gageler J agreed with Gordon J’s reasons as to the non-recognition of a distinct species of vindicatory damages, but wrote separate reasons on Mr Lewis’ non-entitlement to damages.74 His Honour’s reasons placed emphasis on the importance of framing the counterfactual correctly. In Lewis’ case, the counterfactual position was evident: Lewis’ period of detention, and the conditions imposed, would not have been different and as such Lewis had not suffered any compensable loss. In sum: the case affirms the sentiment, seen also in cases like Fernando, 75 that suing for false imprisonment will be of limited practical utility in a great many cases: where lawful detention would have occurred but for unlawful detention. With respect, while the causal reasoning behind such cases is sound, the policy underlying the reasoning is less than ideal for expression in the law of a liberal democracy. Vindication is about reinforcing the importance of particular interests76—cases like Lewis show that freedom from unlawful detention is not as important as you might think.

Damages for disappointment in the age of statutes

Disappointing holidays were another theme of 2020. Who should be responsible for that disappointment?

First year law students could tell you that where you have suffered disappointment in a contractual relationship where the object of that contract was to provide enjoyment or relaxation, then damages for disappointment and distress may be available. As much was decided by the High Court in Baltic Shipping Co v Dillon. 77 In the Moore case, the High Court grappled with the interaction between that principle, the ACL and the Civil Liability Act 2002 (NSW) (CLA).

Moore v Scenic Tours Pty Ltd78

The Court considered a dispute over a European river cruise. Scenic’s brochure promised Moore and his wife a luxurious ‘once in a lifetime cruise along the grand waterways of Europe’. They spent their life savings on the booking. Bad weather meant that they spent only 3 days of 10 on the water. The majority of their time was spent on a bus, being miserable. Moore commenced representative proceedings on his behalf and that of 1500 other passengers, seeking damages under ACL s 267(4). The High Court affirmed that the passengers were owed the consumer guarantees in the ACL. They were able to recover compensation for the reduction in the value of the services below the price paid to Scenic, even though the substance of those services was delivered overseas. Because they paid for a luxury cruise and wound up on a bus, Moore was awarded $10,990 compensation. As the contract was aimed at providing enjoyment and relaxation, Moore argued that disappointment and distress was thus compensable under s 267(4), consistent with Baltic Shipping. Scenic countered that CLA s 16(1) ought to apply to damages awarded for disappointment and distress, precluding relief:

No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case...

The Court held that, although ‘disappointment and distress’ is noneconomic loss, this aspect of the CLA was inapplicable as it is concerned exclusively with claims for damages for personal injury. This was not a claim for personal injury. The case is valuable for its consideration of the scope of the provisions of the CLA that limit the availability of damages in certain contexts; for reaffirmation of the Baltic Shipping principle; and for its reminder that, in the age of statutes, issues concerning damages will often be

Conclusion

2020 was an unusual year in many ways. For fellow enthusiasts of the law of damages, 2020 was also unusual for serving up three interesting High Court cases on damages. Thank you, High Court, for entertaining us.

Endnotes

1 James Edelman (ed), McGregor on Damages (Sweet & Maxwell, 20th ed, 2018) [1-001]. 2 Coined by Guido Calabresi, A Common Law for the Age of Statutes (Harvard University Press, 1985). 3 Competition and Consumer Act 2010 (Cth) sch 2. 4 Jeannie Marie Paterson, Corones’ Australian Consumer Law (Lawbook Co, 4th ed, 2019) 80 [3.10]. 5 Elise Bant and Jeannie Marie Paterson, ‘Exploring the Boundaries of Compensation for Misleading Conduct: The Role of Restitution under the Australian Consumer Law’ (2019) 41(2) Sydney Law Review 155, 160. Eg reliance-based measure in Marks, cf an expectationbased measure in Murphy: Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388. 6 SAS Trustee Corporation v Miles (2018) 265 CLR 137, [20] (Kiefel CJ, Bell and Nettle JJ). 7 Moore v Scenic Tours Pty Ltd (2020) 97 ALJR 481, [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); Acts Interpretation Act 1901 (Cth) s 15AA. 8 An approach advocated by Elise Bant and Jeannie Marie Paterson, ‘Exploring the Boundaries of Compensation for Misleading Conduct: The Role of Restitution under the Australian Consumer Law’ (2019) 41(2) Sydney Law Review 155, 160. 9 An approach to statutory construction described by Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 9, [66] (Gageler J). 10 Musca v Astle Corp Pty Ltd (1988) 80 ALR 251, 262. 11 Henville v Walker (2001) 206 CLR 459’ 12 Henville v Walker (2001) 206 CLR 459, [130] (McHugh J, Gummow and Hayne JJ agreeing), considering ss 52(1) and 82(1) of the Trade Practices Act 1974 (Cth). 13 Kizbeau Pty Ltd v W G & B Pty Ltd (1995) 184 CLR 281, 291 (Brennan, Deane, Dawson, Gaudron and McHugh JJ); Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413, [129] (Kirby and Callinan JJ). 14 Gould v Vaggelas (1985) 157 CLR 215. 15 GH Treitel, ‘Damages for Deceit’ (1969) 32(5) Modern Law Review 556, 557–8. 16 See Elise Bant and Jeannie Paterson, ‘Limitations on Defendant Liability for Misleading or Deceptive Conduct under Statute: Some Insights from Negligent Misstatement’ in Kit Barker, Ross Grantham and Warren Swain (eds), The Law of Misstatements: 50 Years on from Hedley Byrne v Heller (Hart Publishing, 2015) 159. 17 Applying Acts Interpretation Act 1901 (Cth) s 15AA. 18 See Elise Bant and Jeannie Paterson, ‘Limitations on Defendant Liability for Misleading or Deceptive Conduct under Statute: Some Insights from Negligent Misstatement’ in Kit Barker, Ross Grantham and Warren Swain (eds), The Law of Misstatements: 50 Years on from Hedley Byrne v Heller (Hart Publishing, 2015) 159, 162. 19 Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1, 14 (Mason, Wilson and Dawson JJ). 20 Henville v Walker (2001) 206 CLR 459, [18] (Gleeson CJ). 21 Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494, [17] (Gaudron J); Henville v Walker (2001) 206 CLR 459, [18] (Gleeson CJ). 22 Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494, [103] (Gummow J). 23 Mark Leeming, The Statutory Foundations of Negligence (Federation Press, 2019) 3. 24 (2020) 94 ALJR 175; [2020] HCA 27. See the helpful account by Professor Barnett: Katy Barnett, ‘Berry v CCL Secure Ltd’, Opinions on High (blog), 7 August 2020. 25 An analogous argument was accepted by the Federal Court in a false imprisonment case (the argument: but for unlawful detention, there would have been lawful detention): Fernando v Commonwealth of Australia (2014) 231 FCR 251. 26 As emotively recounted by the majority at [11]. 27 Berry v CCL Secure Pty Ltd [2017] FCA 1546. 28 Ibid [19], [21], [24], [322], [327]. 29 CCL Secure Pty Ltd v Berry [2019] FCAFC 81, [218]. 30 Berry v CCL Secure Pty Ltd (2020) 94 ALJR 715, [28] (citations omitted). 31 Ibid [27]. 32 Explored in Michael Douglas, ‘How to prove what never was: AVWest Aircraft Pty Ltd v Clayton Utz and evidence of what company directors would have done’ (2018) 25 Torts Law Journal 86. 33 See James Edelman, ‘Unnecessary causation’ (2015) 89 Australian Law Journal 20. 34 Berry v CCL Secure Pty Ltd (2020) 94 ALJR 715, [39]. 35 Ibid [39] (citations omitted). 36 Ibid [63]. 37 Ibid [66]–[67]. 38 See Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44. 39 Normann Witzleb and Robyn Carroll, ‘The Role of Vindication in Torts Damages’ (2009) 17 Tort Law Review 16. 40 James Edelman (ed), McGregor on Damages (Sweet & Maxwell, 20th ed, 2018) [1-009]. 41 James Edelman (ed), McGregor on Damages (Sweet & Maxwell, 20th ed, 2018) [17-001]. 42 Mosley v News Group Newspapers Ltd [2008] EMLR 20, [231]. 43 See generally PJS v News Group Newspapers Ltd [2016] AC 1081. 44 Eg, Gulati v MGN Ltd [2015] EWHC 1482. 45 Smethurst v Commissioner of Police (2020) 94 ALJR 502. 46 Which are expressly recognised in human rights legislation of a few Australian jurisdictions, eg Human Rights Act 2019 (Qld) s 25. 47 See Campbell v MGN Ltd [2004] 2 AC 457; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. 48 Michael Douglas, ‘What is the Value of Freedom? Nominal Damages for False Imprisonment’ (2013) 21(3) Tort Law Review 117, cf R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245. 49 Edelman J described this contention as ‘functionally identical’ to the first argument advanced by Mr Lewis. 50 Lewis v Australian Capital Territory (2020) 94 ALJR 740, [69], [72]. 51 Ibid [45]. 52 Ibid [50]. 53 Ibid [72]. 54 Ibid [75]. 55 Ibid [96]. 56 Ibid [104]. 57 Ibid [117]. 58 Ibid [118]. 59 Ibid [119]. 60 Ibid [120]. 61 Ibid [140]. 62 Ibid [153] citing Burrows, Remedies for Torts, Breach of Contract, and Equitable Wrongs (OUP, 4th ed, 2019) 46. 63 Ibid [144]. 64 Ibid [155] 65 Including Plenty v Dillon (1991) 171 CLR 635 and Ashby v White (1703) 2 Ld Raym 938. 66 Lewis v Australian Capital Territory (2020) 94 ALJR 740, [172] (citations omitted). 67 See generally David Rolph, Defamation Law (Law Book, 2016) [15.10]. 68 Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946; Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985; Kostov v Nationwide News Pty Ltd [2018] NSWSC 858; Armstrong v McIntosh [No 2] [2019] WASC 379; Armstrong v McIntosh [No 4] [2020] WASC 31. 69 See, eg, Defamation Amendment Act 2020 (NSW) sch 1 item 6 (introducing a new s 10A to the Defamation Act 2005 (NSW)). 70 Lewis v Australian Capital Territory (2020) 94 ALJR 740, [184]. 71 Ibid [2]. 72 Ibid [3]. 73 Ibid [17]. 74 Ibid [22]. 75 Fernando v Commonwealth of Australia [2014] FCAFC 181. 76 Jason NE Varuhas, Damages and Human Rights (Hart Publishing, 2016) 50. 77 Baltic Shipping Co v Dillon (1993) 176 CLR 344. 78 Moore v Scenic Tours Pty Ltd (2020) 94 ALJR 481. Aspects of the following are extracted from: Michael Douglas, Dalitso Banda and Chloe Tolley, ‘Damages for the disappointment of a dodgy holiday’, Bennett + Co (online), 30 April 2020 https://bennettandco. com.au/areas/comm-litigation/damages-forthedisappointment- of-a-dodgy-holiday/. 79 See, eg, Moore v Scenic Tours Pty Ltd (2020) 94 ALJR 481, [37].