By Nicholas Hodgkinson and Thomas O’Keefe
Austral v Northern Territory [2026] HCA 20 concerns the principles applicable to awards of exemplary damages for the tort of battery committed by government employees.
The High Court, by majority (Gordon, Edelman, Gleeson, Jagot and Beech-Jones JJ), allowed four appeals from the Court of Appeal of the Supreme Court of the Northern Territory (Northern Territory of Australia v Austral [2025] NTCA 3 (‘Appeal Judgment’)), overturning an award of exemplary damages on remittal in Binsaris v Northern Territory of Australia [2023] NTSC 79 (‘Primary Judgment’) made in accordance with the High Court’s judgment in Binsaris v Northern Territory of Australia (2020) 270 CLR 549 (‘2020 Binsaris’) that the deployment of tear gas by prison officers against detainees in a youth detention centre was battery.
In doing so, the majority held that this was a case in which conduct attributable to the Northern Territory warranted exemplary damages by way of moral retribution and denunciation, and to deter its repetition, and reinstated exemplary damages for each appellant.
On the Northern Territory’s cross-appeals, the majority reduced each award from $200,000 to $50,000, finding the aggregate manifestly excessive, and dismissed the ground seeking to revive a discretion to decline pre-judgment interest on general damages. Gageler CJ and Steward J dissented.
Facts and procedural history
The appellants were locked in cells in the Behaviour Management Unit of the Don Dale Youth Detention Centre in 2014 when another detainee broke out of his cell and caused a disturbance: at [42]. Officers from the Immediate Action Team at an adult prison arrived, and the Director of Correctional Services authorised the deployment of gas into the unit: at [42]–[43]. The appellants were not warned about the deployment: at [44]. Two appellants suffered from asthma: at [44].
Officers deployed gas into the confined space on ten occasions, exposing the appellants for between three and six and a half minutes: at [43]–[44]; Primary Judgment at [102]–[103]. Afterwards, officers handcuffed the appellants and sprayed them with a hose to decontaminate them: at [44], [78]. A nurse attended that evening, and the appellants were then transferred, still in handcuffs, to an adult prison: at [44].
The Director stated that he did not care how much gas was used: at [43], [77]. The Northern Territory had not sought advice on the lawfulness of deploying gas in youth detention centres and had not trained its officers on such deployment: at [94]; Primary Judgment at [77]–[78].
The High Court held in 2020 Binsaris that the deployment contravened the Weapons Control Act 2001 (NT) and was a battery on each appellant: at [20] (Kiefel CJ and Keane J), [53], [110] (Gordon and Edelman JJ). The matter was remitted for the assessment of damages: at [48]. The assessing judge on remittal awarded each appellant general damages, aggravated damages to three appellants, and $200,000 in exemplary damages: Primary Judgment at [119]; at [49] (Gordon, Edelman, Gleeson, Jagot and Beech-Jones JJ).
Having regard to the size of that award, the assessing judge declined, in the exercise of her discretion, to award pre-judgment interest on general damages: Primary Judgment at [116]. The Court of Appeal set aside the exemplary damages and awarded pre-judgment interest: Appeal Judgment at [103]; at [50] (Gordon, Edelman, Gleeson, Jagot and Beech-Jones JJ).
Issues on appeal
Three grounds were pressed in the appeals:
(1) whether the Court of Appeal failed to give effect to the High Court’s remittal judgment consistently with 2020 Binsaris, contrary to s 37 of the Judiciary Act 1903 (Cth) (‘Judiciary Act‘);
(2) the proper approach to the state of mind inquiry for an award of exemplary damages against a government agency; and
(3) whether it was open to the assessing judge to award exemplary damages on a direct liability basis. All three grounds were made out: at [108], [128], [139]. Gageler CJ and Steward J would have dismissed each appeal: at [41]. The Northern Territory pressed two grounds by cross-appeal. The majority allowed the first, holding that the aggregate award of $800,000 was manifestly excessive and reducing each award to $50,000: at [53], [148]. The second ground was dismissed: at [53], [152].
Reasons
1. The s 37 duty on remittal
Section 37 of the Judiciary Act requires a court on remittal to give judgment in accordance with the High Court’s judgment as if it were its own: at [55]. The Court of Appeal erred in overturning the assessing judge’s award of exemplary damages by relying on a finding of Kelly J, the trial judge, that the gas deployment was ‘reasonable and necessary, there being no other option reasonably available involving less force and less risk to the safety of detainees and staff’: Appeal Judgment at [44]. That reliance was inconsistent with 2020 Binsaris and therefore contrary to s 37: at [104]–[108] (Gordon, Edelman, Gleeson, Jagot and Beech-Jones JJ). Kelly J had reached that finding under the erroneous assumption that the gas was a lawful option and by measuring other options against that assumption: at [82]–[90]. Without it, the evidence of the Director of Correctional Services, the assistant general manager of the detention centre, the Immediate Action Team officers and a corrective services expert that the deployment was the ‘least hazardous option available’ fell away: at [88]–[90].
2. The state of mind inquiry for exemplary damages
The Court of Appeal held the conduct and states of mind of the individual officers did not justify an award of exemplary damages: Appeal Judgment at [74]. The majority held, however, that a wrongdoer’s state of mind does not cover the field of circumstances which might justify an award of exemplary damages: at [115].
The assessment of the need for deterrence, denunciation and retribution cannot be confined to an assumed belief about lawfulness. All circumstances are to be considered: at [116].
The majority identified a series of factors the Court of Appeal neglected to address: such as the appellants’ status as minors treated as acceptable collateral damage; the omission to check asthmatic appellants’ health records before deploying gas; the callousness of the officers’ conduct and remarks; the rough and humiliating decontamination by hose; and inadequacy of medical treatment: at [117]–[125].
Of particular significance was the Northern Territory’s failure to train its officers adequately to respond lawfully to disturbances in a youth detention centre: at [126]. The Northern Territory bore a duty to ensure the physical, psychological and emotional welfare and safe custody of all detainees in its care.
Knowing that Don Dale was unfit for purpose, it was for the Northern Territory to provide adequate training so that its officers could respond lawfully and appropriately to misconduct by a detainee: at [126]. The Northern Territory manifestly failed to do so: at [126].
3. Exemplary damages on a direct liability basis
The Court of Appeal held it was not open to the assessing judge to award exemplary damages on a direct liability basis: Appeal Judgment at [29]. The majority rejected that conclusion, reasoning that, despite the term ‘vicarious liability’ having been used throughout the proceedings, the appellants’ claims had always rested on agency principles of attribution, making the liability of the Northern Territory a liability for its own acts: at [45], [131].
The substance of the Court of Appeal’s objection was that the assessing judge had taken account of the Northern Territory’s systemic failures in training and gas policy as factors supporting an award of exemplary damages: at [132].
The majority held the parties had conducted the hearing before the assessing judge on precisely that basis, without objection from the Northern Territory: at [135]–[136]. The Northern Territory had not contested those submissions before the assessing judge or suggested they were outside the case as pleaded: at [136]–[137]. It was not open to the Northern Territory to raise that objection for the first time before the Court of Appeal: at [138].
4. Quantum and pre-judgment interest
On the first cross-appeal ground, the majority held the aggregate exemplary damages award of $800,000 was manifestly excessive: at [146]. As in criminal sentencing, principles of consistency, parity and totality of penalty assist in achieving proportionality between the award and the wrongdoing: at [141].
Where the same course of conduct injures more than one plaintiff, the proper course is to determine the total award for the defendant’s overall conduct and to apportion it, not to assess each plaintiff’s claim separately: at [142]. The correct total award was $200,000. As no consideration differentiated the appellants’ positions, equal apportionment followed and each appellant was awarded $50,000: at [148].
On the second cross-appeal ground, the majority held the assessing judge erred in declining pre-judgment interest by reference to the size of the exemplary damages award: at [150]. An assessment of compensation and interest on compensation is anterior to any assessment of exemplary damages, because exemplary damages are awarded only where other consequences are insufficient to achieve the purposes of punishment: at [150].
It is not in accordance with principle to assess or reduce compensation by reference to the quantum of an exemplary damages award which was itself based on the adequacy of compensation: at [151]. The Court of Appeal’s award of interest at 4% per annum on general damages from 21 August 2014 was upheld: at [152].
Implications
The decision has four implications for practitioners.
(1) The state of mind of the individual employee who does the tortious act does not determine whether exemplary damages are warranted against a government agency. All circumstances are relevant, including the agency or government’s failure to obtain legal advice, provide adequate training or maintain custodial facilities fit for purpose. Practitioners should plead and prove those circumstances as a basis for an exemplary damages claim.
(2) A claim against a government agency based on attribution of employee conduct through agency is a claim of direct liability, not vicarious liability in the strict sense. The agency’s own systemic failures are squarely relevant to the exemplary damages inquiry. Practitioners should consider particularising the failures on which they rely and conduct the hearing on that basis.
(3) Where a single defendant’s course of conduct simultaneously injures multiple plaintiffs, principles of consistency, parity and totality apply to exemplary damages. The proper approach is to determine the total proportionate award for the defendant’s overall conduct and to apportion it, not to assess each plaintiff’s claim in isolation.
(4) Pre-judgment interest on compensatory damages is to be assessed before and independently of any exemplary damages award. It is an error to decline or reduce a pre-judgment interest award by reference to the size of an exemplary component, because compensation and interest are anterior to exemplary damages.
