Deng v Australian Capital Territory (No 3)
[2022] ACTSC 262
•28 September 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title:
Deng v Australian Capital Territory (No 3)
Citation:
[2022] ACTSC 262
Hearing Dates:
3 May 2021, 13 October 2021
DecisionDate:
28 September 2022
Before:
Loukas-Karlsson J
Decision:
See [420]
Catchwords:
CIVIL LAW – where plaintiff arrested for breach of interim family violence order – where order expressed to operate “until all related charges were finalised” – where charges had been finalised – where AFP arrested plaintiff – where plaintiff was remanded in custody by Magistrates Court – whether Magistrates Court orders to remand the plaintiff were within jurisdiction – whether the first or second defendant liable for false imprisonment – whether interim family violence order revoked – whether first or second defendant negligent in failing to record or communicate revocation to the AFP – whether first or second defendant otherwise breached duty of care to the plaintiff – whether s 17A of the Magistrates Court Act 1930 (ACT) creates a cause of action maintainable against Territory – held that remand orders were made within jurisdiction – held that interim family violence order was not revoked – held that plaintiff was not owed a duty of care – held that even if duty did exist there was no breach in circumstances where the arresting officer and the AFP had all information possessed by first and second defendants and where family violence order was not varied or revoked
HUMAN RIGHTS – whether s 18(7) of the Human rights Act 2006 (ACT) creates cause of action resulting in a right to compensation to the plaintiff – whether remand orders made arbitrarily or without, or in excess of jurisdiction contrary to ss 18(1) or 18(2) of the Human Rights Act – held that remand orders did not breach ss 18(1) or 18(2) – unnecessary to decide whether s 18(7) would enable the plaintiff to claim compensation
Legislation Cited:
Bill of Rights Act 1990 (NZ)
Civil Law (Wrongs) Act 2002 (ACT) ss 42, 43, 44, 47, 102, 110
Crimes (Sentencing Administration) Act 2004 (ACT) s 17
Crimes Act 1900 (ACT) s 116
Family Violence Act2016 (ACT) ss 21, 22, 42, 43, 44, 88, 112, 113
Human Rights Act 2006 (ACT) ss 17I, 18, 30, 40, 40B, 70, 74
Human Rights Amendment Act 2008 (ACT)
Human Rights Amendment Bill 2007 (ACT)
Human Rights Bill 2003 (ACT)
Justices Act 1902 (NSW) s 135
Legislation Act 2001 (ACT) s 142
Magistrates Court Act 1930 (ACT) ss 4, 17A, 17F, 18Cases Cited:
Amin v Vidal [2020] ACTSC 227; 94 MVR 285
Andrews v Thomson [2018] ACTCA 53
Astley v Austrust [1999] HCA 6; 197 CLR 1
Brown v Australian Capital Territory [2020] ACTSC 70
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649
Caseley v Zampgona [2006] WASC 259
Chase Oyster Bar v Hamo Industries [2010] NSWCA 190; 78 NSWLR 393
D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1
Eastman v The Australian Capital Territory [2019] ACTSC 280
Factory at Chorzow (Germany v. Poland), 1928 P.C.I.J. (ser. A, No. 17)
Federated Engine Drivers’ and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398
Fok Lai Ying v Governor-in-Council [1997] 3 LRC 101
Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; 236 CLR 120
Hardy v Rigby [2020] NTSC 42
Jadwan Pty Ltd v Department of Health and Aged Care [2003] FCAFC 288
Lewis v Australian Capital Territory [2018] ACTSC 19
Manga v Attorney-General [2002] NZLR 65
McDonald v Coles Myer Ltd [1995] NSWSC 67; Aus Torts Rep 81
Melbourne Steamship Co Ltd v Moorehead (1915) 15 CLR 333
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597
Momcilovic v The Queen [2011] HCA 34; 245 CLR 1
Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352
Monaghan v Clatzis [2021] ACTSC 4
Morro v Australian Capital Territory [2009] ACTSC 118
Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728
Neilsen v Attorney-General [2001] 3 NZLR 433
New South Wales v Zreika [2012] NSWCA 37
Nigro v Secretary to the Department of Justice [2013] VSCA 213; 41 VR 359
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
R (on the application of Jalloh (formerly Jollah)) v Secretary of State for the Home Department [2020] 2 WLR 418; UKSC 4
R v Bennett; Ex parte Katelaris (1988) 33 A Crim R 105; 79 ACTR 1
ReBolton; Ex parte Beane [1987] HCA 12; 162 CLR 514
Roberson v Icon Distribution Investments Ltd [2020] ACTSC 320; 15 ACTLR 256
Slaveski v Smith [2012] VSCA 25; 34 VR 206
Spautz v Butterworth (1996) 41 NSWLR 1
State of New South Wales v Abed [2014] NSWCA 419
Strano v Australian Capital Territory [2016] ACTSC 4
Sullivan v Moody [2001] HCA 59; 207 CLR 562
Thompson v The Queen [1989] HCA 30; 169 CLR 1
Van Alphen v The Netherlands (1990-1992) 3 NZBORR 326
Verryt v Schoupp [2015] NSWCA 128
Woodhouse v Fitzgerald [2021] NSWCA 54
Zaoui v Attorney-General [2004] NZCA 228; (2005) 1 NZLR 577
Zreika v State of New South Wales [2011] NSWDC 67Texts Cited:
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 28 January 1993)
Law Officer (Model Litigant) Guidelines 2010Parties:
Atem Deng (Plaintiff)
The Australian Capital Territory (First Defendant)
The Magistrates Court of the Australian Capital Territory (Second Defendant)
Her Honour Special Magistrate Margaret Hunter (Third Defendant)
His Honour Magistrate Glenn Theakston (Fourth Defendant)
Representation:
Counsel
P Tierney (Plaintiff)
A Hochroth, with K Fallah on 13 October 2021 (Defendants)
Solicitors
Ken Cush & Associates (Plaintiff)
ACT Government Solicitor (Defendants)
File Number:
SC 377 of 2020
LOUKAS-KARLSSON J:
Introduction
1. Mr Deng should not have spent 58 days in gaol. That was a failure of the system. Nevertheless, the proper application of the law does not result in a remedy for Mr Deng in this case
2. On 30 April 2019, the Plaintiff, Mr Atem Deng, appeared in Court in relation to an offence contrary to s 116(3) of the Crimes Act 1900 (ACT), being an offence of destroy or damage property (CC2019/11475). On that date, Magistrate Boss made a court initiated Special Interim Family Violence Order (SIFVO) pursuant to s 112 of the Family Violence Act 2016 (ACT) (the Family Violence Act). The order prohibited the Plaintiff from engaging in certain conduct “until all related charges are finalised”. It is of significance to note at the outset that the prohibition was not stated to be until the hearing of the final Family Violence Order but rather “until all related charges are finalised”.
3. On 30 August 2019, the Plaintiff appeared in Court before Magistrate Lawton where he was sentenced in relation to the charge of damaging property. He was convicted and fined $2000. Thus, “all related charges were finalised”.
4. On 22 October 2019, after attending the house of his ex-partner, the Plaintiff was arrested and charged with an offence of contravening a family violence order contrary to s 43(2) of the Family Violence Act. As of 22 October 2019, however, the SIFVO that the Plaintiff was alleged to have contravened did not prohibit the Plaintiff’s conduct as all related charges had been finalised. There was therefore no relevant contravention.
5. On 23 October 2019, the Plaintiff attended Court and made an application for bail. A copy of the Statement of Facts, the SIFVO, and the Plaintiff’s criminal history were provided to the Court. The Plaintiff’s application for bail was refused by Special Magistrate Hunter and the Plaintiff was remanded in custody.
6. The Plaintiff next appeared in Court on 12 November 2019 before Acting Chief Magistrate Theakston. On that date, the Plaintiff entered a plea of not guilty and was again remanded in custody until 9 January 2020 for hearing.
7. On 19 December 2019, following representations by the Plaintiff’s defence counsel, the prosecution offered no evidence and the charge of contravening a family violence order was dismissed. In total, the Plaintiff was detained in the Alexander Maconochie Centre (the AMC) for 58 days.
8. The Plaintiff makes a claim for relief including:
a)a Declaration that, in purporting to remand the Plaintiff in custody on 23 October 2019 and 12 November 2019, the Second Defendant acted without, or in excess, of jurisdiction;
b)in the alternative, a Declaration setting aside the orders made by the Second Defendant purporting to remand the Plaintiff in custody;
c)damages from the Second Defendant, or alternatively, the Third and Fourth Defendants pursuant to s 17A of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act) for the injury suffered by the Plaintiff as a result of the remand orders and/or the pleaded acts of the Third and Fourth Defendants;
d)compensation from the First Defendant pursuant to s 18(7) of the Human Rights Act 2004 (ACT) (the Human Rights Act);
e)damages from the First Defendant for false imprisonment;
f)damages in negligence from the First Defendant;
g)interest on damages and compensation; and
h)costs.
9. It is noted that on 2 July 2021, Crowe AJ stayed the proceedings against the Third and Fourth Defendants until further order.
History of Proceedings
10. The Plaintiff filed an Originating Claim and Statement of Claim on 22 October 2020, naming the First and Second Defendants. The matter was shortly thereafter listed for a hearing to commence on 3 May 2021.
11. The First and Second Defendants filed a Defence on 12 February 2021. On 16 April 2021, the First and Second Defendants filed an Application in Proceeding seeking to amend their defence, and an order compelling the Plaintiff to disclose various economic loss documents. The application was opposed by the Plaintiff, and the matter came before Elkaim J on 22 April 2021. Elkaim J gave leave for the First and Second Defendants to file and rely upon the Amended Defence and ordered that the Plaintiff provide certain documents: Deng v Australian Capital Territory [2021] ACTSC 69.
12. On 3 May 2021, the matter first came before me for hearing. The Plaintiff and Constable Paul Allan, the informant, gave evidence on that occasion.
13. Following that date questions arose regarding the application of s 17A of the Magistrates Court Act. The Plaintiff filed an Application in Proceeding on 6 May 2021, seeking to either strike out paragraph 36(a) of the defence or, alternatively, for Special Magistrate Hunter and Magistrate Theakston to be joined as defendants in the action.
14. Paragraph 36(a) reads “the Defendants deny the allegation in paragraph 36 of the Claim and say that: s 17A of the MCA does not confer any right or entitlement to sue the First Defendant or the Second Defendant for damages”.
15. Paragraph 36 of the Claim reads “The plaintiff is entitled to damages pursuant to s. 17A of the Magistrates Court Act”.
16. The Application in Proceeding came before me on 14 May 2021. On that date, following submissions of the parties, I ordered that Special Magistrate Hunter and Magistrate Theakston be joined as Defendants in the matter. A timetable was set for the Plaintiff to file and serve an Amended Statement of Claim.
17. On 21 May 2021, the Plaintiff filed and served the Amended Statement of Claims. The defendants had a number of objections to the amended pleading and, on 7 June 2021, filed an Application in Proceeding seeking a stay of the proceedings against the Third and Fourth Defendants pursuant to s 17F of the Magistrates Court Act. As I have discussed above, that matter came before Crowe AJ on 25 June 2021.
18. On 2 July 2021, Crowe AJ delivered his decision staying the proceedings against the Third and Fourth Defendants until further order. The matter was listed for directions on 19 July 2021, to allow for the Plaintiff to be given an opportunity to consider the ramifications of the judgment and the subsequent progression of the substantive proceedings.
19. On 19 July 2021, filing orders were made by the Registrar and the matter was listed before me, on 13 October 2021, for the conclusion of the hearing.
20. On 13 October 2021, the parties made closing submissions and I reserved my decision.
List of Issues
21. The Plaintiff and the Defendants agreed to some extent upon a list of issues. Nevertheless, a number of additional issues for determination, as well as suggested amendments, were put forward by the Defendants. The issues list is set out in the table below:
| Issue No. | Issue | Plaintiff, Defendants, or Agreed as an issue. | Para Ref. for where discussed in judgment. |
| General Matters | |||
| 1 | Was the Special Interim Order, or the conditions contained in the Special Interim Order, revoked on 30 August 2019? | Agreed Issue | [63]-[90] |
| 1A | Should the Officers have known that: (a) The failure to administratively review the Special Interim Order upon the finalisation of the Related Charge; (b) The failure to record the Revocation; and (c) The failure to notify the AFP of the Revocation (if that occurred) Could cause harm to the Plaintiff? | Defendants’ Issue | [91]-[103] |
| 2 | Was the First Remand Order dated 23 October 2019 made without, or in excess of, jurisdiction? If not, was the order void or did it nevertheless provide lawful authority for the detention of the Plaintiff? | Agreed Issue | [104]-[195] |
| 3 | Was the Second Remand Order dated 12 November 2019 made without, or in excess of jurisdiction? If not, was the order void or did it nevertheless provide lawful authority for the detention of the Plaintiff? | Agreed Issue | [104]-[195] |
| Section 17A of the Magistrates Court Act | |||
| 4 | On 23 October 2019 and 12 November 2019, should the Second Defendant have known that there were no restrictions or conditions imposed by the Special Interim Order to sustain the Breach Charge? | Agreed Issue | [196]-[200] |
| 5 | Does s 17A(1) of the Magistrates Court Act give rise to a cause of action for damages against the Second Defendant? | Agreed Issue | [201]-[214] |
| 6 | If s 17A(1) of the Magistrates Court Act does give rise to a cause of action for damages against the Second Defendant, is such an action not maintainable by operation of s 17A(2) of the Magistrates Court Act? | Agreed Issue | [215] |
| 7 | If s 17A(1) of the Magistrates Court Act does give rise to a cause of action for damages against the Second Defendant, what are the elements of the cause of action, and has the Plaintiff satisfied those elements so as to be entitled to damages from the Second Defendant? | Agreed Issue | [216]-[218] |
| Section 18(7) of the Human Rights Act 2004 | |||
| 8 | Does s 18(7) of the Human Rights Act give rise to a cause of action for compensation? | Agreed Issue | [219]-[254] |
| 9 | Were the Remand Orders: (a) Made arbitrarily, in breach of s 18(1) of the Human Rights Act; or (b) Made without, or in excess of jurisdiction, in breach of s 18(2) of the Human Rights Act? | Agreed Issue | [255]-[259] |
| False Imprisonment | |||
| 9A | Was there lawful justification for the Plaintiff’s detention from 23 October 2019 to 19 December 2019 pursuant to the Remand Orders? | Defendants’ Issue | [260] |
| Negligence | |||
| 9B | Is it relevant to the Plaintiff’s claim in negligence whether the First Defendant (as opposed to the Officers), owed the Plaintiff a duty of care to take reasonable action to prevent the Plaintiff from suffering foreseeable and not insignificant harm? | Defendants’ Issue | [261]-[316] |
| 10 | Did the First Defendant and the Officers, from 30 August 2019, owe the Plaintiff a duty to take reasonable care to avoid loss arising from his possible arrest and charge with an offence of breaching the Special Interim Order? | Plaintiff’s Issue | [261]-[316] |
| Did the First Defendant (if relevant) and the Officers, owe the Plaintiff a duty of care to take reasonable action to prevent the Plaintiff from suffering foreseeable and not insignificant harm? | Defendants’ Issue | [261]-[316] | |
| 11 | If so, what was the content of the duty of care? | Plaintiff’s Issue | [261]-[316] |
| If so, did the content of the duty of care include taking reasonable care to: (a) Maintain accurate and complete records of orders made, varied, and revoked by the Second Defendant; and (b) Provide timely, accurate, and complete records of orders made, varied, and revoked to the AFP? | Defendants’ Issue | [261]-[316] | |
| 11A | Has the Plaintiff limited his case on negligence to a failure by the Officers not to notify the AFP of “the finalisation of the Special Interim Order”? | Defendants’ Issue | [261]-[316] |
| 12 | Did the First Defendant (if relevant) or the Officers commit any of the Records Breaches in breach of their duty of care? | Agreed Issue | [261]-[316] |
| 13 | Was the Plaintiff contributorily negligent such as to justify any reduction in damages? | Agreed Issue | [317]-[331] |
| Relief | |||
| 14 | What, if any, relief should be granted to the Plaintiff, including: (a) Whether the Declaration sought should be made; (b) Whether the Remand Orders should be set aside; (c) The appropriate quantum of general damages for loss of liberty (if liability be established); (d) The amount of damages for the Plaintiff’s economic loss (if liability be established); and (e) Whether to award aggravated damages and the amount of the same (if liability be established)? | Plaintiff’s Issue | [332]-[419] |
| What, if any, relief should be granted to the Plaintiff, including: (a) Whether either of the Declarations sought should be made; (b) The appropriate quantum of general damages for loss of liberty (if liability be established); (c) The amount of damages for the Plaintiff’s economic loss (if liability be established); and (d) Whether to award aggravated damages and the amount of the same (if liability be established)? | Defendants’ Issue | [332]-[419] | |
Summary of Evidence
Evidence of the Plaintiff
22. The Plaintiff gave evidence before the Court on 3 May 2021.
23. The Plaintiff is 35 years of age. He was born in South Sudan and moved at a young age to Kenya, with the assistance of the United Nations. The Plaintiff lived, for about 10 years, in a refugee camp in Kenya with his mother and five sisters. His father and brothers remained behind in South Sudan where his brothers were conscripted as child soldiers.
24. The Plaintiff came to Australia on 4 March 2005. He married in 2009. He lived in Adelaide before moving to Perth, and later to Canberra in December 2013. While in Perth, the Plaintiff worked full-time in distribution with a company called Cealane. The Plaintiff has completed a Diploma in Management, an Advanced Diploma of Business, an Advanced Diploma of Management (Human Resources), and an Advanced Diploma of Management. He is currently studying Law at the University of New England.
25. The Plaintiff gave evidence that on 22 October 2019 he attended the address of his ex-partner. He had been drinking alcohol that day but denied being affected by alcohol. The Plaintiff gave evidence:
Do you accept that you were affected by alcohol that day?--- No, because the only problem I came home, then a knock at the door. Then my missus was there at the house and she didn’t open the door. Then I went to the garage, and then I see that then the police come and grab me.
Okay?--- They were just yelling on me.
When the police came in?--- Yes.
When did you hear and see at that time?--- So what – what I heard, they were just yelling at me because I was just – it encouraged – there’s a bit at the back. The garage is at the back of the house is there. Then I hear the yelling and all these things and I was sleeping. Then after that they come – one of them come and grab me from the throat. The they put their elbow and all these things on me.
26. The Plaintiff was arrested by police and taken to the city watchhouse, where he spent the night in a cell. The Plaintiff was taken to court the morning of 23 October, he applied for bail with the assistance of a Legal Aid duty lawyer. Bail was refused and the Plaintiff was transported that evening to the AMC. Upon arrival at the AMC, the Plaintiff gave evidence that he was subject to a full-body cavity search.
27. The Plaintiff gave evidence that he was housed in a cell with a man named Richard. The Plaintiff gave evidence that Richard threatened the Plaintiff, told him to be quiet, and took items that the Plaintiff had bought from the prison store (commissary).
28. The Plaintiff was moved from the cell that he occupied with Richard into a different accommodation unit. His new cell mates name was George. The Plaintiff gave evidence that George told him “I don’t need anyone to talk about me. If someone talks, I’ll kill that person”. The Plaintiff was frightened of George who was imprisoned for having committed murder. The Plaintiff gave evidence that there was a toilet in the cell. George ordered the Plaintiff not to use the toilet at night.
29. The Plaintiff gave evidence that, at one point during his incarceration, there was a lockdown that lasted for a couple of days. During a lockdown, no prisoners are allowed to exit their cells and food is given to inmates through a small opening on the door of each cell. During the lockdown the Plaintiff gave evidence that he felt angry, upset, humiliated, and isolated.
30. There was an objection to the contextual evidence of the Plaintiff in relation to his time in custody. It was ultimately accepted by all parties that the damages claimed by the Plaintiff are not sought for specific instances, and that the matter is one of false imprisonment with the foundational point that jail is not an ideal place to be and that cellmates are “often not nice people”.
31. The Plaintiff gave evidence that he was strip searched six or seven times over the period of his incarceration. He did not have any visitors, and his grandmother passed away during his incarceration.
32. The Plaintiff was returned to court on 12 November 2019 where a further remand order was made by then Acting Chief Magistrate Theakston and the plaintiff was returned to custody at the AMC. On 19 December 2019, the Plaintiff again appeared in court via audio-visual link. On that occasion, the prosecution offered no evidence, and the Plaintiff was subsequently released. The Plaintiff gave evidence that after he was released he felt unhappy, upset, distressed, felt isolated, and was humiliated (T47.27-30).
33. The Plaintiff gave evidence that before he was taken into custody in October, he was working as a labourer on the Court redevelopment site. When the Plaintiff was released from custody on 19 December, he called his previous employer. They said to him “You’ve been in the – in prison, so, sorry, we can’t do anything”.
34. The Plaintiff contacted a company and was given one day’s work as a traffic controller in January 2020. The Plaintiff contacted two further traffic companies, both of which were unable to offer him any work. He further approached a landscaping company that he had previously worked with. They were also unable to offer the Plaintiff work. The Plaintiff was able to get work in April 2020 with a labour hire company called “EMPlace”.
35. In summary, the Plaintiff was cross-examined on the following matters.
36. The Plaintiff said that he worked at “EMPlace” for three days. The company dissolved and the Plaintiff no longer had work.
37. The Plaintiff agreed that, at the time of his imprisonment, he was working for a company called Employ Me. The Plaintiff gave evidence that he had a contract with Employ Me to provide work at the Courts until 31 March 2020.
38. The Plaintiff commenced working on the Court’s construction site in April 2019 and concluded working there upon his arrest.
39. The Plaintiff gave evidence that between the period of 19 December 2019 and 31 March 2020, he contacted, unsuccessfully, six organisations seeking work.
40. The Plaintiff gave evidence that he could not recall being served with a SIFVO on 30 April 2019.
41. The Plaintiff agreed that he was aware that on 30 August 2019 there was no protection order in place that prevented him from attending his ex-partner’s address. The Plaintiff agreed that, prior to 30 August 2019, there were bail conditions that prohibited him from attending his ex-partner’s house. The Plaintiff gave evidence that he was only aware of the bail condition, not of the protection order. The Plaintiff denied ever receiving a “Notice of Adjournment Following Finalisation of Related Charges” dated 16 October 2019. The Plaintiff accepted that, on that date, he was staying at the address which was handwritten on the front of that document.
42. The Plaintiff gave evidence that he was given a copy of the SIFVO when he was brought to court, after being arrested, on 23 October 2019. The Plaintiff gave evidence that he understood, on 23 October, that there was no order in place that prevented him from attending his ex-partner’s address.
Evidence of Constable Paul Allan
43. Constable Paul Allan was called to give evidence by the Plaintiff. A statement of Constable Allan, dated 10 December 2019, formed part of Exhibit 2.
44. Constable Allan attended the address of the Plaintiff’s ex-partner (the complainant) on 22 October 2019. Upon arrival, he had a conversation with the complainant who stated that she was unaware if there was an order in place between her and the Plaintiff.
45. Constable Allan gave evidence that he accessed police indices and confirmed that there was a Family Violence Order in place. Constable Allan gave evidence that certain aspects of police indices are maintained by a dedicated team, the PROMIS Co-ordination Team, and that individual case officers maintain day-to-day reports. Constable Allan agreed that it was important that the police have accurate information relating to the complete detail of orders.
46. In cross-examination, Constable Allan gave evidence that he would not have seen the SIFVO itself on police indices, but that he would have had a copy of it before him when he arrived at the watchhouse.
47. Constable Allan was taken to the Statement of Facts that he prepared for the hearing on 22 October 2019. He agreed that he was the author of that document and that, at the time of writing the document, he would have had a copy of the SIFVO in front of him. Constable Allan agreed that it does not say in the Statement of Facts that the order was in place until all related charges are finalised. It was not general practice, he said, for officers to include that information when setting out the conditions of orders in a Statement of Facts.
48. Constable Allan could not recall making any enquiry on 22 October 2019 as to whether or not the related charges referred to in the interim order had been finalised.
49. Constable Allan gave evidence that once a Statement of Facts is prepared it is given to the watch house Sergeant, along with other evidence that had been collected for the Sergeant to vet. Constable Allan’s understanding is that the Sergeant reads the Statement of Facts, as well as the evidence that is provided to him, to satisfy himself that a lawful investigation has been conducted.
Exhibits List
50. Also in evidence were the following exhibits:
a)The Amended Court Book;
b)The Plaintiff’s Tender Bundle;
c)The Plaintiff’s Economic Loss Bundle;
d)The Plaintiff’s Further Pay Slips;
e)The Defendants’ Tender Bundle;
f)The Agreed Chronology;
g)The Westpac Banking Records;
h)The Plaintiff’s Schedule of Damages;
i)The Schedule of Correspondence;
j)The Defendant’s Schedule of Damages.
General Submissions
51. Counsel for the Plaintiff submitted that, at all material times, the First Defendant (the ACT), by its employees, including the Director-General of the Justice and Community Safety Directorate, maintained and was responsible for:
a)Court administration and registry services of the Second Defendant;
b)The maintenance of the records of the Second Defendant, including with respect to orders as made, varied and revoked by the Second Defendant under the Family Violence Act; and
c)Providing to the AFP timely, accurate, and compete information about family violence orders made, varied, and revoked by the Second Defendant to enable the AFP to exercise its law enforcement functions.
52. As such, the First Defendant is vicariously liable for the acts and omissions of the Director-General and the staff of the Justice and Community Safety Directorate performing administrative functions for the Second Defendant (“the Officers”).
53. The First Defendant is sued:
a)In respect of the acts and omissions of the Officers;
b)In respect to the relief sought:
(i)For compensation under s 18(7) of the Human Rights Act;
(ii)For damages for false imprisonment; and/or
(iii)For damages for loss caused by negligent acts and omissions of the Officers.
54. The Second Defendant (the Magistrates Court) is sued:
a)In respect of acts taken against the Plaintiff when purporting to sit as the Family Violence Court on 23 October 2019 and 12 November 2019;
b)For a Declaration that, in purporting to remand the Plaintiff in custody on 23 October 2019 and 12 November 2019, the Second Defendant acted without, or in excess of, jurisdiction;
c)In the alternative, for a Declaration setting aside order made by the Second Defendant purporting to remand the Plaintiff in custody; and
d)For damages pursuant to s 17A of the Magistrates Court Act in relation to acts undertaken without, or in excess of, jurisdiction which caused injury to the complainant.
55. Counsel for the Defendants submitted that, while it is “regrettable” that the Plaintiff spent time in custody on a charge which should not have been brought, this does not mean that the Plaintiff is entitled to compensation from the Defendants, according to law.
56. It was submitted by the Defendants that the Plaintiff’s claim cannot succeed for five principal reasons.
57. First, it was submitted the Second Defendant had jurisdiction to make the remand orders. The only jurisdictional fact required to support the remand orders were the laying before the Court of a charge against the laws of the Territory. The Court had jurisdiction to proceed to hear and determine the charge, the charge having been laid and being regular on its face. The Plaintiff was not detained arbitrarily or other than in accordance with procedures established by law. The Plaintiff was remanded only upon the presentation of regular charges against the laws of the Territory for the orthodox purpose of pre-hearing detention after being given an opportunity to argue for bail.
58. Second, it was submitted the remand orders were in force for the duration of the Plaintiff’s detention and their existence required officers of the Territory to detain the Plaintiff. The Plaintiff’s invocation of the Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 (Bhardwaj) decision to assert that the remand orders, if affected by jurisdictional error, should be treated as non-existent is overly simplistic. Bhardwaj does not mean that a decision affected by jurisdictional error is treated as never having existed. The clear line of authority, it was submitted, shows that no action for false imprisonment may be maintained if the imprisonment was in execution of any order regularly made by a judicial officer, even without jurisdiction.
59. Third, it was submitted the contention of the Plaintiff that s 17A(1) of the Magistrates Court Act provides a statutory cause of action against the Second Defendant is, it was submitted, misconceived. Section 17A(1) facilitates the bringing of an action against a Magistrate where the Magistrate has acted without, or in excess, of jurisdiction. It does not, it was submitted, create any cause of action, less still a cause of action against the Magistrates Court itself.
60. Fourth, it was submitted s 18(7) of the Human Rights Act does not provide an independent cause of action. Such has been repeatedly confirmed by judges of this Court.
61. Fifth, it was submitted the Plaintiff’s contention that there was negligence on the part of the Officers of the Territory fails on both a principle and factual level. Accepting, for present purposes, that when a court order apt to affect the liberty of a person is revoked or varied by a judicial act, a duty of care may arise to communicate the effect of the subsequent judicial act to relevant authorities. Here, it was submitted, there was no judicial act. The interim order was not revoked or varied. It imposed conditions only until all related charges were finalised, which occurred on 30 August 2019. The AFP had, at all times, access to both the terms of the order and the Plaintiff’s criminal history. The evidence did not explain how, it was submitted, in those circumstances, the AFP came to lay the charges. Further, the evidence did not establish that the AFP was reliant in any way on the administrative staff of the Magistrates Court to inform them when conditions in an interim family violence order ceased to operate. In the absence of such evidence the Plaintiff cannot meet his burden of establishing duty or breach.
62. As such, it was ultimately submitted that the detention of the Plaintiff on an unsustainable charge is not detention for which either of the defendants are liable at law to compensate the Plaintiff.
ISSUE 1: Was the Special Interim Order, or the conditions contained in the Special Interim Order, revoked on 30 August 2019?
63. The significance of this issue goes to whether the Second Defendant had jurisdiction to hear and determine the charge against the Plaintiff of contravening a Family Violence Order under s 43 of the Family Violence Act (the Breach Charge) when remanding him in custody.
64. By way of background, on 30 April 2019 the Plaintiff appeared in Court before Magistrate Boss on a single charge that he, on 29 April 2019, recklessly caused damage to property belonging to someone else, and that the damage to the property did not exceed $5,000 (CC2019/4957).
65. On that date, Magistrate Boss granted the Plaintiff bail and made a court initiated Special Interim Family Violence Order, pursuant to s 112 of the Family Violence Act.
66. The Special Interim Family Violence Order relevantly read as follows:
Pursuant to s 112 of the Family Violence Act 2016, regarding the behaviour of Atem Deng (“the respondent”) in relation to [redacted] (‘the protected person(s)’) the Court orders that until all related charges are finalised:
The respondent is prohibited from:
(a) being on the premises at [redacted] where the protected person(s) live(s)
(b) being within 100 metres of the protected person(s);
i. except at a Court or Tribunal proceeding;
(c) locating, or attempting to locate, the protected person(s);
(d) contacting the protected person(s);
i. except through a legal practitioner;
(e) engaging in behaviour that constitutes family violence towards the protected person(s), except as permitted by this order;
(f) causing someone else to locate or attempt to locate the protected person(s), except as permitted by this order;
(g) causing someone else to contact the protected person(s), except as permitted by this order;
(h) causing someone else to do anything that is family violence in relation to the protected person(s);
…
67. As adverted to earlier, on 30 August 2019, the Plaintiff appeared in Court before Magistrate Lawton. On that date he was sentenced in relation to the damage property charge and fined $2000. No orders were made by Magistrate Lawton regarding the SIFVO.
68. On 16 October 2019, a letter from the Deputy Registrar was sent by post to the Plaintiff and the protected person. The letter relevantly read:
NOTICE OF ADJOURNMENT FOLLOWING FINALISATION OF RELATED CHARGES
The application for a final Family Violence Order Pursuant to Section 113 of the Family Violence Act 2006 in this proceeding has been listed as the related charges have now been finalised.
The application has been adjourned to:
Date: Wednesday, 6 November 2019
Time: 9:45am
Location: Magistrates Court Building …
On this date, a Deputy Registrar will conduct a conference to determine whether the application can be resolved by consent or has to be decided by a Magistrate… If you or the other party does not attend the conference, the Court may decide the application in that party’s absence.
69. On 6 November 2019, the protected person attended Court and a Family Violence Order was made for a period of 24 months from 6 November 2019. The final order has the same conditions as the SIFVO.
70. The Plaintiff contends, in his Amended Statement of Claim, that on and from 30 August 2019 the prohibition on the plaintiff engaging in the conduct specified in the SIFVO was revoked. As such, it was not possible for the Plaintiff to be in breach of an order that did not exist.
71. Counsel for the Defendants conceded that the related charge (CC2019/4957) was finalised on 30 August 2019. As such, it was submitted that the prohibitions on the Plaintiff’s conduct contained in the SIFVO, on their terms, no longer applied after that date. However, the Order was not revoked and, insofar as the Plaintiff’s case rests on the proposition that there was a revocation on 30 August 2019, the Court should reject that proposition.
72. Relevantly, pursuant to s 21 of the Family Violence Act, an interim family violence order may be made if:
… satisfied that the order is necessary to do either or both of the following until the application for the final order is decided:
(a) ensure the safety of an affected person from family violence;
(b) prevent substantial damage to an affected person’s property.
Note 1The court must consider the matters mentioned in s 14 in deciding whether to make the interim orders
Note 2An affected person includes any child who hears, witnesses or is otherwise exposed to family violence committed against another person (see s 8 (1), def family violence, par (b) and dict).
73. Pursuant to s 112 of the Family Violence Act, a court in a family violence proceeding may make an interim order against the defendant if satisfied that a court may, if it were acting on an application for a final order, make an interim order against the defendant.
74. A final order may be made if a court is satisfied that the affected person has reasonable grounds to fear family violence by the respondent, or if the court is satisfied that the respondent has used family violence against the affected person: s 34.
75. Pursuant to the Family Violence Act, there are two kinds of interim orders, being a special interim order, and a general interim order. A special interim order is to be made if there is a related charge outstanding in relation to the respondent: s 22(1)(a). An interim order made under s 112 of the Family Violence Act is taken to be a special interim order: s 113(b).
76. With leave of the Magistrates Court, a respondent to a special interim order may apply to the Court for review of the special interim order: s 87. On hearing the application for review, the Magistrates Court may revoke the special interim order only if satisfied that it is no longer necessary for the protection of the protected person: s 88(2).
77. Section 30 of the Family Violence Act outlines where a special interim order ends:
A special interim order ends only when the first of the following happens:
(1) The special interim order is revoked;
(2) The application for a final order on which the special interim order was made is discontinued or dismissed;
(3) A final order is made and the respondent is present when it is made;
(4) If a final order is made but the respondent is not present when it is made – the final order is served on the respondent.
78. Section 31 of the Family Violence Act provides, relevantly:
If a court makes a special interim order, the court must not decide the application for the final order until all related charges are finalised.
79. Counsel for the Defendants correctly submitted that the SIFVO was not revoked on 30 August 2019. Rather, the prohibitions on the Plaintiff’s conduct ceased to have effect on that date by operation of its terms. The term “revocation” suggests that there was a judicial act that occurred on 30 August 2019, akin to the revocation or variation of bail. The order remained in existence until the occurrence of one of the events specified in s 30 of the Family Violence Act. In this instance, when the final order was served on the Plaintiff on 19 November 2019.
80. The terms of the Family Violence Act make clear that a Special Interim Order ends only when one of the four specified events outlined at s 30 occurs. The term “revoked” in s 30(a) is not apt to cover a situation where the special interim order simply ceases to prohibit any conduct on the part of the respondent.
81. Counsel for the Defendants submitted that, while the effect of an order having been revoked is that the order is no longer in effect, an order can cease to have effect without there being any revocation. On the analysis of the legislation discussed above that must be correct.
82. Section 42 of the Family Violence Act expressly contemplates that the conditions specified in a special interim order may last for a specified period that is shorter than the period of the order:
A condition in a family violence order may have effect for a period stated in the family violence order that is shorter than the period of the order.
83. Further there are consequences under the Family Violence Act for the order’s continued existence even after the prohibitions in it ceased to operate.
84. Counsel for the Defendants correctly submitted that the debate between the parties may be merely semantic but, to the extent that the Plaintiff’s case rests on the proposition that there was a revocation on 30 August 2019, that proposition should be rejected. Further, in relation to the Plaintiff’s negligence case, it was correctly submitted that the absence of any judicial act on 30 August 2019 revoking the interim order was a factor that distinguishes this matter from that of Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352 (Monaghan).
85. In my view there would be some force in the plaintiff’s submissions that the SIFVO was revoked by operation of its own terms on 30 August 2019 if the issue related solely to the ordinary meaning of revoke. However, in this case there is a specific process for revocation as such under the Family Violence Act as discussed below.
86. Nevertheless, it is equally clear that after 30 August 2019 there was no basis to found the Breach Charge.
87. Counsel for the Plaintiff submitted that it is strictly unnecessary to determine this issue, given the concession made by the Defendants that as at 23 October 2019, the SIFVO did not impose conditions on the Plaintiff and, further, as at 23 October 2019, that no order existed to found the Breach Charge. I do not accept that submission. Whether the order was revoked (a positive act) is relevant to the issue of negligence.
88. It is apposite at this juncture to refer to s 88 of the Family Violence Act which relevantly states that:
88 Special interim orders—review
(1) On hearing an application for review under section 87, the Magistrates Court must, by order—
(a) dismiss the application; or
(b) confirm the special interim order; or
(c) revoke the special interim order; or
(d) set aside the special interim order and make a new interim order.
(2) The Magistrates Court may revoke the special interim order only if the Magistrates Court is satisfied that the special interim order is no longer necessary for the protection of the protected person.
89. The Family Violence Act does not define “revoke”. Nevertheless, in the context of special interim orders, the terms of s 88 support the Defendants’ submission that revoke requires a positive order of the Magistrates Court – and that such an order to revoke can only be made where satisfied that the special interim order is no longer necessary for the protection of the protected person.
90. In conclusion, in answer to the first issue the SIFVO was not revoked on 30 August 2019.
ISSUE 1A (Defendants): Should the Officers have known that (a) the failure to administratively review the Special Interim Order upon the finalisation of the Related Charge, (b) the failure to record the Revocation; and (c) the failure to notify the AFP of the Revocation (if that occurred) could cause harm to the Plaintiff?
91. The Defendants included this question in their list of issues, submitting that the issue plainly arises on the pleadings and is relevant to the Plaintiff’s negligence case. If the issue is answered in the negative, the Defendants submitted that it is difficult to see how the pleaded duty of care could arise.
(A) A failure to administratively review the Special Interim Order
92. Counsel for the Defendants correctly submitted that the Plaintiff’s case suffers from a lack of precision as to what is specifically the negligent failure alleged to have occurred. The Defendants submitted that, upon requesting particulars of the phrase “administratively review”, they were informed that the words and phrase “collectively have their ordinary English meaning. That is processes and/or mechanisms (often routine) whereby information before a person is assessed and considered usually by reference to policy and/or procedures”.
93. No basis has been advanced by the Plaintiff in evidence or argument, as to why a failure to “administratively review” the SIFVO upon the finalisation of the related criminal charge could cause harm to the Plaintiff, less still why the Deputy Registrar, or any other Officer, should have known that this was the case.
94. This matter will be further discussed in dealing with the negligence claim.
(B) The failure to record the Revocation
95. As outlined above in the discussion of issue 1 there was no revocation of the order. As such, no Officer should have known that a failure to “record” the revocation could cause harm to the Plaintiff.
96. Further the fact that the related criminal charge had been finalised was recorded. This occurred both on the Plaintiff’s criminal record, and in a letter sent from the Magistrates Court to the Plaintiff and the complainant on 16 October 2019, advising that the related charge had been finalised.
(C) A failure to notify the AFP of the Revocation
97. The order was not revoked. As such, there could not have been a failure to notify the AFP of the revocation.
98. To the extent that the allegation is that there was a failure to notify the AFP of the fact that the related criminal charge had been finalised there is no evidence of a failure to notify the AFP of the fact that the related criminal charge had been finalised.
99. The Plaintiff’s criminal history was updated to show the finalisation of the related criminal charge, and the AFP, at all times, had access to the Plaintiff’s criminal history. At least to that extent the AFP was notified by the Court of the finalisation of the related charge.
100. Additionally, if there was any such failure to notify the AFP, there is no evidence for the proposition that any Officer should have known that such failure could cause harm to the Plaintiff. There was no reason for the Deputy Registrar, or any other Officer, to know or suspect that the AFP, being in possession of the Plaintiff’s criminal history and the interim order and, thus being aware that the prohibitions applied only until the related charge was finalised, would nevertheless charge the Plaintiff with an offence of contravening that interim order.
101. Counsel for the Defendants submitted that the Court should answer “no” to the questions put forward in Issue 1A.
102. Counsel for the Plaintiff submitted that Issue 1A relates to the Plaintiff’s claim in negligence. The question addresses foreseeability of harm.
103. As discussed above, this issue will be discussed further under negligence.
ISSUE 2: Was the First Remand Order dated 23 October 2019 made without, or in excess of, jurisdiction? If not, was the order void or did it nevertheless provide lawful authority for the detention of the Plaintiff?
ISSUE 3: Was the Second Remand Order dated 12 November 2019 made without, or in excess of, jurisdiction? If not, was the order void or did it nevertheless provide lawful authority for the detention of the Plaintiff?
104. Issue 2 and Issue 3 are related. As such, it is appropriate to deal with the issues together.
105. On 23 October 2019, Special Magistrate Hunter refused the Plaintiff bail and remanded him in custody until 12 November 2019. A remand warrant was issued pursuant to s 17 of the Crimes (Sentencing Administration) Act 2004 (ACT) (the Sentencing Administration Act). This warrant required all officers authorised by the Director-General under the Justice and Community Safety Directorate and Community Services Directorate to keep the Plaintiff in custody under full-time detention, and to bring the Plaintiff to Court on 12 November 2019. Collectively, these orders are referred to throughout this judgment as the “Remand Orders”.
106. On 12 November 2019, the Plaintiff appeared in Court before, as he then was, Acting Chief Magistrate Theakston. No application for bail was made and the Plaintiff entered a plea of not guilty. Acting Chief Magistrate Theakston remanded the Plaintiff in custody to a future date and a second remand warrant was issued under s 17 of the Sentencing Administration Act.
107. Counsel for the Plaintiff submits that on 23 October 2019, and 12 November 2019, the Second Defendant had no jurisdiction to make either remand order, and that the orders were made without, or in excess of, jurisdiction. As such, the detention of the Plaintiff was not imposed by lawful authority and the Plaintiff is entitled to damages for false imprisonment.
108. The remand orders were made under s 70 and/or s 74 of the Magistrates Court Act. The sections provide as follows:
70Remand of defendant
(1)This section applies if the court considers it is necessary or desirable to adjourn the hearing of a proceeding for an indictable offence–
(a) because of the absence of witnesses; and
(b) for any other reasonable cause.
(2)The court may–
(a) adjourn the hearing; and
(b) order the remand of the defendant into custody for a stated period; and
(c) order the director-general to arrange for the defendant to be brought before the court at a stated time and place for the hearing.
Note 1The court must issue a warrant for the remand of the defendant in the director-general’s custody (see Crimes (Sentence Administration Act 2005, s 17)
Note 2The Crimes (Sentence Administration Act 2005, pt 3.2 provides for the director-general to have custody of the defendant during the remand.
(3)If the period of remand is not longer than 3 days, the order may be made orally.
(4)Any single period of remand under this section must be no longer than–
(a) 28 days; or
(b) if the defendant chooses to be remanded for a longer period without review– a longer period that the court considers reasonable.
74Remand of defendant before decision
The court may, at any time before the court gives its decision in a case, order that the defendant be remanded in custody.
Note 1If the court remands the defendant in custody, it must issue a warrant for the defendant’s remand in the director-general’s custody (see Crimes (Sentence Administration) Act 2005, s 17)
Note 2The Crimes (Sentence Administration) Act 2005, pt 3.2 provides for the director-general to have custody of the defendant during the remand.
109. Counsel for the Plaintiff submitted that this issue necessitates a determination of what potential jurisdiction was available when the Remand Orders of 23 October and 12 November 2019 were made.
110. The plaintiff submitted that the relevant jurisdiction of the Second Defendant to be considered in these proceedings is not framed, it was submitted, by the Magistrates Court Act, but by the Family Violence Act. The Family Violence Act provides the Second Defendant the power to make family violence orders and, pursuant to s 43, hear and determine charges for breach of such orders.
111. It was submitted that both s 70 and s 74 of the Magistrates Court Act provide ancillary powers available to the Magistrates Court to use in aid of the exercise of its adjudicative jurisdiction in relation to a hearing.
112. Counsel for the Plaintiff submitted that the contention of the defendants as to the basis of jurisdiction, being a power to place a person on remand, is irreconcilable with the objects and obligations of the Human Rights Act. It was submitted, that the Second Defendant, in purporting to issue the Remand Orders, was undertaking an administrative rather than judicial function: Lewis at [170]-[171]. As such, the Second Defendants was, at the relevant times, a “public authority” for the purposes of s 40 of the Human Rights Act.
113. Section 40 of the Human Rights Act provides as follows:
(1)Each of the following is a public authority:
(a) an administrative unit;
(b) a territory authority;
(c) a territory instrumentality
(d) a Minister;
(e) a police officer, when exercising a function under a Territory law;
(f) a public employee;
(g) an entity whose functions are or include functions of a public nature, when it is exercising those functions for the Territory or a public authority (whether under contract or otherwise).
Note A reference to an entity includes a reference to a person exercising a function of the entity, whether under a delegation, subdelegation or otherwise (see Legislation Act, s 184A(1).
(2)However, public authority does not include–
(a) the Legislative Assembly, except when acting in an administrative capacity; or
(b) a court, except when acting in an administrative capacity.
114. It was contended that the exceptions present in s 40(2) do not apply. Accordingly, the Second Defendant was bound by s 40B of the Human Rights Act, which provides:
(1)It is unlawful for a public authority–
(a) to act in a way that is incompatible with a human right; or
(b) in making a decision, to fail to give proper consideration to a relevant human right.
(2)Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and–
(a) the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or
(b) the law cannot be interpreted in a way that is consistent with a human right.
Note A law in force in the Territory includes a Territory law and a Commonwealth law.
(3)In this section:
public authority includes an entity for whom a declaration is in force under section 40D.
115. It was further submitted that, by virtue of s 30 of the Human Rights Act, which provides “so far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights”, the obligation in s 40B is relevant to the scope of the jurisdiction of the Magistrates Court.
116. Counsel for the Plaintiff submitted that it “is simply untenable to contend that the farce of a baseless prosecution entertained by the Magistrates Court in the face of its own error on the record establishes the jurisdictional foundation to remand a defendant with impunity as being complaint with s 18(2) of the Human Rights Act”.
117. Similarly, it was submitted that it is patently wrong to contend that the general power to commence a criminal proceeding by laying an information under s 24 of the Magistrates Court Act addresses, let alone defines, the scope of jurisdiction of the Magistrates Court.
118. On the hearing of a charge under s 43 of the Family Violence Act, it was submitted that it is quite clear that the existence of a “family violence order” operates as a condition precedent, or a jurisdictional fact, to the hearing and determination of that charge.
119. A jurisdictional fact is, it was submitted, in general terms, “a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question”: Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; 236 CLR 120 at [43] see also Chase Oyster Bar v Hamo Industries [2010] NSWCA 190; 78 NSWLR 393.
120. The High Court has observed that the determination of whether or not a Court has jurisdiction is the first duty of the Court: Federated Engine Drivers’ and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398. However, it was submitted by the plaintiff that, contrary to the Defendants contention, that duty does not engage a right to use a statutory power to detain a person whilst that determination is taking place: Re Bolton; Ex parte Beane [1987] HCA 12; 162 CLR 514 at 528:
121. Counsel for the Plaintiff submitted that the non-satisfaction of the relevant jurisdictional fact in these proceedings (due to the non-existence of the family violence order) was not something that originated from the mistake of a third party. Rather, it was a mistake as to the terms of the Second Defendant’s own SIFVO.
122. The non-satisfaction of a jurisdictional fact, of which the Second Defendant should have been aware, has, it was submitted, two consequences.
123. Firstly, it determines that the Second Defendant acted without or in excess of jurisdiction in relation to the subject matter of the proceeding before it. Therefore, any legal authority to support the imprisonment of the Plaintiff is removed, liability is established for the false imprisonment of the Plaintiff, and the Plaintiff is entitled to an award of damages. Secondly, it supports a claim for compensation under s 17A of the Magistrates Court Act. Each consequence, it was submitted, leads to the conclusion that the Plaintiff was the subject of an error which visited a very serious miscarriage of justice on him by an unlawful imprisonment.
124. Further the plaintiff submitted reliance by the defendants on Thompson v The Queen [1989] HCA 30; 169 CLR 1 (Thompson) concerning the question of jurisdiction is misplaced as Thompson was decided in 1989, fifteen years before the Human Rights Act, in a common law context.
125. The plaintiff submitted that the absence of a key jurisdictional fact goes to the heart of jurisdiction as a “function of determining guilt” in respect of the Breach Charge.
126. Counsel for the Plaintiff submitted on the significance of the Human Rights Act in determining the scope of the Second Defendant’s jurisdiction, including that:
a)Sections 18(1) and (2) contain the substantive provisions that: “in particular, no-one may be arbitrarily arrested or detained” and “no-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law”.
b)Section 30 of the Human Rights Act requires the Magistrates Court Act be interpreted, so far as it is possible to do so consistently with its purpose, in a way which is consistent with these rights;
c)Section 40B(1)(a) of the Human Rights Act made it unlawful for the Defendants to act in a way that is incompatible with a human right; and
d)Section 40(2) of the Human Rights Act allows the Plaintiff’s substantive human rights to be the subject of the claims for relief in respect to the Second Defendant’s orders, and defines terms of the Plaintiff’s common law right not to be falsely imprisoned.
127. Those matters it was submitted are matters that stand against the reliance on Thompson.
128. It was submitted by the plaintiff that the Second Defendant did not undertake the first duty of the Court, being to determine jurisdiction. Had it done so, a simple reading of the terms of the court’s file would have alerted the court of the finalisation of the SIFVO on 30 August 2019, the likelihood that the AFP had not been apprised of that consequence, and the want of jurisdiction for the court.
129. The Plaintiff further submitted that there is “something surreal” in the Defendants’ attempt to blame the AFP for a mistake that was obviously made by the Second Defendant. No statutory or common law authority supports such a proposition. To the contrary, it was submitted, the very concept of “jurisdictional error” involves error. Moreover, the first duty of the Second Defendant to determine its jurisdiction cannot be outsourced to the AFP prosecuting authority, particularly when the AFP laid an information because a failure of the officers to provide correct information to it.
130. The Plaintiff submitted that Thompson was determined in respect of the exercise of power by the Supreme Court of the ACT as a superior court of record and not an inferior court, such as the Second Defendant. Thompson was decided three years before Bhardwaj and does not engage with the effect of jurisdictional error committed by an inferior court: see also Lewis.
131. A contention relied on by the Defendants to provide lawful authority for the detention of the Plaintiff is the “warrant contention”.
132. First, the plaintiff submitted that the warrant contention was not pleaded by the Defendants.
133. Second, the plaintiff submitted no evidence has been adduced by the defendants to sustain the warrant contention.
134. In any event, it was submitted, as a general common law principle, the warrant contention does not engage with the relevant binding Australian authority as to the consequences of a legally informed decision of an inferior court, and the rights of the Plaintiff under ss 18(1), 18(2), and 18(7) of the Human Rights Act and s 17A of the Magistrates Court Act.
135. The warrant contention fails to engage with the nature of the warrants that were issued in relation to the Plaintiff. Sections 16 and 19 of the Sentencing Administration Act establish that it is a remand order (not a warrant) which authorises detention of a remandee. The remand orders are challenged by the Plaintiff.
136. The Plaintiff further submitted that real issue between the parties is the question of jurisdiction of the Second Defendant to make the remand orders and that the warrant contention has no application to that issue.
137. Finally, counsel for the Plaintiff submitted that, in relation to the claim in tort for false imprisonment without lawful authority for that detention, the tort is made out and the Plaintiff is entitled to damages.
138. In conclusion, it was further submitted that, subject to one exception, the decision of an inferior court which is affected by jurisdictional error may be regarded as having no legal effect at all: Bhardwaj. The exception is that the relevant statute may give rise to some consequence of an invalid decision (or order): Jadwan Pty Ltd v Department of Health and Aged Care [2003] FCAFC 288 (Jadwan).
Consideration
139. Counsel for the Defendants submitted that the Remand Orders were made within jurisdiction. Further that even if the Court were to find that the Magistrates Court lacked jurisdiction, the warrants and orders provided lawful justification for the Plaintiff’s detention.
Were the Remand Orders made without, or in excess of, jurisdiction?
140. The Plaintiff’s claims in false imprisonment, under s 17A of the Magistrates Court Act and s 18(7) of the Human Rights Act rest on the proposition that the remand orders made by the Magistrates Court were made without, or in excess, of jurisdiction.
141. In my view the Remand Orders were made within jurisdiction for the following reasons.
142. Thompson is relevant to this question. In Thompson at 21-22, Brennan J observed:
Of course, the judge has jurisdiction to inquire into any facts that are necessary to determine the court’s jurisdiction to hear and determine the charge but, in this country, I do not think that jurisdiction to hear and determine a charge depends upon the fact – as distinct from the allegation – that the crime occurred within a particular territory.
The term “jurisdiction” in this context is attended with a certain ambiguity. It may refer to the authority of the court to hear and determine the issues arising in a criminal trial, or it may refer to the power of the court to enter a judgment of conviction and to impose a penalty after hearing and determining the issues… if the charge alleges the commission of an offence against the law administered by the court (the law of the forum), the court has jurisdiction to hear and determine the charge, but when an issue is raised as to the locality of the offence the jury may have to decide the issue in order to determine whether the conduct charged falls within the territorial ambit of the law of the forum. Locality then becomes a fact on which liability to conviction depends…
Although the locality of an element of the offence charged may affect the power to convict and punish, the jurisdiction of the court to hear and determine the charge depends on what the indictment charges …
143. Similarly, at 33-34, Deane J observed:
The criminal jurisdiction of the Supreme Court (ACT) Territory … exists in a case where the accused is charged with murder under that law regardless of whether, in the event, the evidence establishes all or any of the ingredients of the offence charged.
144. As explained in Thompson, the Court’s jurisdiction to try a case does not depend upon a guilty verdict. Rather, as set out above, jurisdiction in that sense depends upon the contents of the charge. The Plaintiff’s attempts to distinguish Thompson do not, in my view, withstand scrutiny. The principle in Thomson is not confined to locality.
145. Similarly, in R v Bennett; Ex parte Katelaris (1988) 33 A Crim R 105; 79 ACTR 1 at 120, Gallop J held that:
It follows that where a person is in fact before the court, whether brought there by summons or by warrant, or for any other reason, an information, oral or written, may thereupon be laid and if this is done, there is justification to try the offence. But the information must be laid to give the magistrate jurisdiction.
146. Therefore, it is not correct to state that the function of determining guilt in respect of the breach charge could not have been undertaken by the Second Defendant. Had the charge not been withdrawn, the Magistrates Court would have had jurisdiction to hear and determine the charge. The Plaintiff would have been acquitted at hearing having identified that the prohibitions in the SIFVO applied only until the related criminal charge was finalised, and that this had occurred by the time of the alleged offence. That is that a necessary element of the offence could not be established.
147. The Plaintiff sought to distinguish Thompson on a further basis, submitting that the High Court did not deal with the question of the use of remand powers by a court, and the consequence of jurisdictional error when such powers were used without, or in excess of, jurisdiction. However, Brown v Australian Capital Territory [2020] ACTSC 70 (Brown), which followed Thompson, did deal with these issues.
148. In Brown at [75], Murrell CJ held, consistent with Thompson, that:
The fact that, ultimately, the prosecution does not prove an allegation that an offence occurred within the territorial jurisdiction of a court does not retrospectively deprive the court of jurisdiction to hear the proceedings, although it does deprive the court of jurisdiction to convict and sentence for the alleged offence.
149. Murrell CJ found that the actions of individual magistrates, the Court, and the Director-General were lawful and that the Plaintiff’s claim under s 18(7) of the Human Rights Act failed at the threshold, as the Plaintiff could not establish that his detention was “unlawful” within the meaning of s 18(7). This Court in Brown applied the principle in Thompson notwithstanding the existence of the Human Rights Act.
150. Although both Thompson and Brown concerned the issue of locality the principle for which both cases stand – that the jurisdiction to hear and determine a criminal charge depends upon what is alleged in that charge, regardless of what may ultimately be proved at trial – is a broader principle.
151. That principle means that where, as here, a person was mistakenly charged with breaching an order that did not have the effect alleged in the charge, the Court has jurisdiction to hear and determine that charge. That jurisdiction extends to the making of remand orders pending the final hearing.
152. The submission of the Plaintiff that the Magistrates Court lacked jurisdiction, cannot stand in the face of Thompson and Brown. The jurisdictional fact upon which the Magistrates Court’s jurisdiction depends is not the existence of an order that imposes conditions upon the Plaintiff, rather the existence of information alleging that the plaintiff had contravened such an order.
153. The Plaintiff submitted that Thompson was determined in respect of the exercise of power by the court and not in relation to an inferior court, was decided three years before Bhardwaj, and did not engage with the effect of jurisdictional error committed by an inferior court.
154. Brown, however, was determined in respect of the exercise of power by the Magistrates Court. Further, there is no reason why the principle in Thompson would apply any differently to an inferior court than it does to a superior court. Further still, nothing in Bhardwaj overrules or qualifies Thompson. Thompson goes to whether there is jurisdictional error, rather than the effect of any jurisdictional error.
155. In my view, the proper application of Thompson and Brown compel the conclusion that the remand orders were made within jurisdiction. The Magistrates Court had before it a charge alleging an offence against a law of the Territory. The Court had jurisdiction to hear and determine that charge. The Court therefore had jurisdiction to exercise its powers incidental to such a hearing, including its statutory powers to remand the Plaintiff in custody.
156. Further, s 26 of the Magistrates Court Act provides that:
An information may be laid before a magistrate in any case where a person has committed or is suspected of having committed, in the ACT, an indictable offence or an offence that may be dealt with summarily as provided in section 19.
157. In conclusion, the laying of the information alleging that the plaintiff had committed the offence of contravene family violence order enlivened the Magistrates Court’s jurisdiction to hear and determine that charge. That, in turn, engaged the powers of the Magistrates Court to remand the plaintiff in custody.
Were the Remand Orders made without jurisdiction in light of the Human Rights Act?
158. The Plaintiff places reliance on the Human Rights Act in submitting that the Magistrates Court lacked jurisdiction to make the Remand Orders. The argument appears to be that if the Plaintiff’s remand could be characterised as “arbitrary” or as having been done “not on the grounds and in accordance with the procedures established by law” within the meaning of sections 18(1) and 18(2) of the Human Rights Act, then the Remand Orders must have been made without jurisdiction.
159. Section 30 of the Human Rights Act is the equivalent of s 32 of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter). That provision has been held to be an ordinary rule of interpretation: see Nigro v Secretary to the Department of Justice [2013] VSCA 213; 41 VR 359 at [85], referring to Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 (Momcilovic).
160. The provision requires “statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms”: Momcilovic at [51] per French CJ. However, it does not “require or authorise a court to depart from the ordinary meaning of a statutory provision, or the intention of Parliament in enacting the provision”: Slaveski v Smith [2012] VSCA 25; 34 VR 206 at [20].
161. Further, in Andrews v Thomson [2018] ACTCA 53, the Court of Appeal observed at [45]:
… it is important to observe that s 30, by its very wording, contains a caveat, expressed in the words “So far as it is possible to do so consistently with its purpose, a Territory law…”. Accordingly, the HRA does not change an interpretation but rather assists with interpretation of a section provided that this assistance can be given in a way that is not inconsistent with the section’s purpose.
162. No intention can be discerned from the provisions of the Human Rights Act that any breach of a human right will deprive the court of jurisdiction. Indeed, the terms of the Act suggest otherwise. Section 40B provides that it is unlawful for a public authority (including a court acting in an administrative capacity: s 40(2)(b)), to act in a way that is incompatible with a human right. Section 40C permits proceedings to be taken in respect of a contravention of s 40C and provides that any relief except damages may be granted in such proceedings.
163. The sections provide:
40B Public authorities must act consistently with human rights
(1) It is unlawful for a public authority—
(a) to act in a way that is incompatible with a human right; or
(b) In making a decision, to fail to give proper consideration to a
relevant human right.
(2) Subsection (1) does not apply if the act is done or decision made
under a law in force in the Territory and—
(a) the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or
(b) the law cannot be interpreted in a way that is consistent with a human right.
Note A law in force in the Territory includes a Territory law and a Commonwealth law.
(3)In this section:
public authority includes an entity for whom a declaration is in force under section 40D.
40C Legal proceedings in relation to public authority actions
(1) This section applies if a person—
(a) claims that a public authority has acted in contravention of section 40B; and
(b) alleges that the person is or would be a victim of the contravention.
(2) The person may—
(a) start a proceeding in the Supreme Court against the public authority; or
(b) rely on the person’s rights under this Act in other legal proceedings.
(3) A proceeding under subsection (2) (a) must be started not later than 1 year after the day (or last day) the act complained of happens, unless the court orders otherwise.
(4) The Supreme Court may, in a proceeding under subsection (2), grant the relief it considers appropriate except damages.
(5) This section does not affect—
(a) a right a person has (otherwise than because of this Act) to seek relief in relation to an act or decision of a public authority; or
(b) a right a person has to damages (apart from this section).
Note See also s 18 (7) and s 23.
(6) In this section:
public authority includes an entity for whom a declaration is in force under section 40D.
164. If the Magistrates Court was acting in contravention of s 40B, proceedings could issue under s 40C to restrain the conduct in contravention. There is no need to construe the breach as also depriving the Court of jurisdiction. Nor is there any provision in the Human Rights Act to the effect that an act done in breach of s 40B is void, or has no effect: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [91], where McHugh, Gummow, Kirby and Hayne JJ said:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
(Citations omitted.)
165. Section 74 of the Magistrates Court Act provides, that the court may, at any time before it gives its decision in a case, order that the defendant be remanded in custody. These words confer a broad power to remand.
166. A remand order that contravenes ss 18(1) or (2) of the Human Rights Act may involve a breach of s 40B and give rise to a claim for relief under s 40C. It is not, by reason of such contravention alone, made without jurisdiction.
167. Further, the Remand Orders in the present case were not made, either arbitrarily, or not on the grounds and in accordance with procedures established by law.
168. As to arbitrariness, detention will be arbitrary if it is capricious, unreasoned, without reasonable cause, made without reference to an adequate determining principle, or without following proper procedures established: Neilsen v Attorney-General [2001] 3 NZLR 433 (Neilson) at 434.
169. The detention in the present case, pursuant to the Remand Orders, was not capricious or unreasoned. The Plaintiff was brought before the Court on 23 October 2019, following his arrest, and a duty lawyer represented him. The duty lawyer sought and obtained an opportunity to confer with the Plaintiff. The duty lawyer applied for bail on behalf of the Plaintiff, and this was opposed by the prosecutor. The Plaintiff was formally charged with the offence for which he was brought before the Court. Special Magistrate Hunter refused bail, giving ex tempore reasons for her decision.
170. No complaint has been made that her Honour failed to consider any of the matters prescribed for consideration in relation to bail under s 22 of the Bail Act 1992 (ACT) (Bail Act). When the matter returned to Court on 12 November 2019, he was legally represented, entered a plea of not guilty and did not apply for bail.
171. The detention was not made without reasonable cause, without reference to principle, or without following proper procedures. The Plaintiff was charged in Court with an offence against a law of the Territory, a charge to that effect having been laid before the Court. The offence with which the Plaintiff was charged was serious. Due consideration was given to matters relevant to whether or not bail should be granted in accordance with the Bail Act.
172. It is correct that the SIFVO no longer imposed prohibitions on the Plaintiff’s conduct on 22 October 2019. This does not render the Remand Orders arbitrary. The fact that the SIFVO no longer imposed prohibitions on the Plaintiff’s conduct was not brought to the Court’s attention on either 23 October 2019 or 12 November 2019 by either prosecution counsel or defence counsel.
358. The Defendants submitted that the Plaintiff’s work prior to his detention, namely, working on the upgrade of the ACT Court precinct may not have been available to him as at 20 December 2019 as to the best of the knowledge of the Defendants that work had been completed. The Defendants noted that no evidence had been led on that issue by the Plaintiff.
359. The Defendants correctly noted that the Plaintiff had given evidence in cross-examination that his contract was until 31 March 2020, however submitted that his subsequent evidence made it unclear as to whether he had an employment contract at all and, absent any such contract being in evidence, that no award for future economic loss was justified.
360. The Defendants further submitted that there was no reliable evidence as to how much the Plaintiff was likely to have earned over the relevant period, and that, in the event that I did not accept their primary submission (that no award for future economic loss should be made) I should reduce any award by the quantum of the unemployment payments made to the Plaintiff over the relevant period.
361. I accept the Defendants submission that the Plaintiff’s evidence to his contractual arrangements was unclear. This is not a case where a written contract has been provided to the Court or where clear evidence establishes that work was available.
362. In my view it would have been appropriate to provide for future economic loss by way of a buffer of $10,000. In accordance with my reasoning above, I would not have reduced this amount by the Commonwealth income support payments the Plaintiff received.
363. Accordingly, I would have awarded $10,000 for future economic loss.
General Damages
364. In Lewis v Australian Capital Territory [2018] ACTSC 19 (Lewis), Refshauge J provided a useful summary of some of the applicable principles of damages for false imprisonment:
McDonald J in Myer Stores Ltd v Soo at 633, cited with approval from Harvey McGregor and John D Mayne, McGregor on Damages (Sweet & Maxwell, 14th ed, 1980) at 922:
The principal head of damage would appear to be the injury to liberty, i.e. the losses of time considered primarily from a non-pecuniary point of view and the injury to feeling i.e. the indignity, mental suffering, disgrace and humiliation with any attendant loss of social status.
The relevant passage in the 16th edition, namely Harvey McGregor, McGregor on Damages (Sweet & Maxwell, 16th ed, 1997) at 1198-9; [1850], is to the same effect. The latter passage was cited with apparent approval by Gray J in Morro v Australian Capital Territory [2009] ACTSC 118; 4 ACTLR 78 at 110; [141].
Thus, as Lawrence LJ said in Walter v Alltools Ltd (1944) 61 TLR 39 at 40, deprivation of liberty is not the only value to be protected. His Lordship said:
[A]ny evidence which tends to aggravate or mitigate the damage to a man’s reputation which flows naturally from his imprisonment must be admissible up to the moment when damages are assessed. A false imprisonment does not merely affect a man’s liberty, it also affects his reputation. The damage continues until it is caused to cease by an avowal that the imprisonment was false.
As noted in McGregor on Damages, injury to feelings, such as the humiliation caused, may also form part of the matters that constitute the damage for which compensation is to be awarded: McIntosh v Webster at 127-8.
In addition, any personal injury suffered by the plaintiff, including any deleterious effect on his or her health, is a matter that may be included in the damages for which the plaintiff is to be compensated: New South Wales v Williamson [2012] HCA 57; 248 CLR 417 at 428-9; [33].
…
Indeed, that is re-affirmed by the quotation which Murphy J in Myer Stores Ltd v Soo at 603 cited from P A Landon, Pollock on Torts (Stevens & Sons, 15th ed, 1951) at 142, namely that:
the estimate of damages may be coloured, so to speak by disapproval of the defendant’s conduct (and in the opinion of the court legitimately so), though it be not a case for vindictive or exemplary damages in the proper sense.
365. Further, in Monaghan, Mossop AsJ surveyed the authorities on damages for loss of liberty. At [170], Mossop J stated:
The relevant authorities identifying the approach that should be taken to a claim for false imprisonment are set out in the decision of Gray J in Morro v Australian Capital Territory [2009] ACTSC 118; (2009) 4 ACTLR 78 (Morro). In a negligence case where the causally related consequences of the negligence is the detention of the plaintiff it is useful to note the approach to damages for false imprisonment and the distinction between damages for that cause of action and a cause of action in negligence. In Morro Gray J said (at [140]-[145]):
In Ruddock v Taylor [2005] HCA 48; (2003) 222 CLR 612 at [140], Kirby J referred to the approach to general damages in respect of false imprisonment at [138]:
The principal function of the tort is to provide a remedy for ‘injury to liberty’ (see Trindade and Cane, The Law of Torts in Australia, 3rd ed (1999), p 302.). It is not, as such, to signify fault on the part of the defendant. Damages are awarded to vindicate personal liberty, rather than as compensation for loss per se (see Balkin and Davis, Law of Torts, 3rd ed (2004), p 62 [3.27]. Contrast the tort of negligence, where damages are awarded to compensate for loss or damage).
As far as the heads of damages recoverable in a claim for false imprisonment, McGregor on Damages (16th ed, 1997) at [1850]:
The details of how the damages are worked out in false imprisonment are few: generally it is not a pecuniary loss but a loss of dignity and the like, and is left much to the jury’s or judge’s discretion. The principal heads of damage would appear to be the injury to liberty, i.e. the loss of time considered primarily from a non-pecuniary viewpoint, and the injury to feelings, i.e. the indignity, mental suffering, disgrace and humiliation, with any attendant loss of social status. This will all be included in the general damages which are usually awarded in these cases: no breakdown appears in the cases.
cited by MacDonald J in Myer Stores Ltd v Soo [1991] 2 VR 597 at 633 and by Clarke JA in Spautz v Butterworth (supra) at [14G]. In Myer Stores Ltd v Soo Murphy J summarised the position (at 603):
The damages in an action for false imprisonment are generally awarded not for a pecuniary loss but for a loss of dignity, mental suggering, disgrace and humiliation. Any deleterious effect on the plaintiff’s health will also be compensated.
He also cited Pollock on Torts, (15th ed) p 142 that:
the estimate of damages may be coloured so to speak by disapproval of the defendant’s conduct (and in the opinion of the court legitimately so) though it be not a case for vindictive or exemplary damages in the proper sense.
In Goldie v Commonwealth (No 2) at [14] French J said:
The assessment of damages for false imprisonment is necessarily informed by the general proposition that:
False imprisonment trenches not only upon a person’s liberty but also on his dignity and reputation, and this is reflected in the calculation of damages.
J Fleming, The Law of Torts, 8th ed, LBC (1992) at [29]:
The compensatory damages are assessed by reference, inter alia, to the duration of the deprivation of liberty and to hurt or injury to the plaintiff’s feelings, that is to say the injury, mental suffering, disgrace and humiliation suffered as a result of the false imprisonment – Trindade and Cane, The Law of Torts in Australia, 3rd Edition, OUP (1999) at 302.
In Spautz v Butterworths, Clarke JA considered it permissible to compare awards in other false imprisonment cases. He said (at 13D):
It seems to me that if it is permissible to compare awards of damages in defamation cases with those in personal injury cases, equally it must be permissible to have regard to awards approved by this Court in other defamation cases or, as here, other false imprisonment cases. Two of the latter category have recently been before this court. In McDonald v Coles Myer Ltd (t/as K-Mart Chatswood) [1995] Aust Torts Reports 62,682 the Court increased an award of general damages in circumstances in which the plaintiff had never been incarcerated in a prison to $24,000. In Wooley v Philips (Court of Appeal, 26 August 1996, unreported) the plaintiff complained of an assault, wrongful arrest and false imprisonment. She had not spent any time in a prison. Notwithstanding, Judge Bell awarded her $30,000 damages and this Court rejected the plaintiff’s complaint that the damages were inadequate. Obviously the circumstances in each of those cases bore little resemblance to the present one but, as it seems to me, reference to two cases in which neither plaintiff was incarcerated in a prison and yet received general damages far greater than those awarded to the appellant, supports my conclusion that the provisional award in this case bore no rational relationship to the injury (the losses may be a more sensible description) suffered by the appellant. It follows that this Court should disregard his Honour’s assessment.
As far as damages in that case were concerned, Clarke JA said (at 18B):
Matters such as the indignity, mental suffering, disgrace and humiliation suffered by the appellant as a result of the false imprisonment are to be included in general damages. Any conduct of the first respondent which may have had the effect of increasing the injury to the appellant’s feelings is also to be included in the general compensatory damages.
(emphasis added)
366. In Spautz, Clarke JA also stated:
The necessary conclusion is that where a plaintiff is entitled to compensatory damages for wrongful arrest or false imprisonment, it is proper for the Court, in assessing ordinary compensatory damages, to take into account the whole of the conduct of the defendant to the time of verdict which may the effect of increasing the injury to the person’s feelings. Such matters might include the absence of apology and the reaffirmation of the truth of the matters. However, for a plaintiff to be entitled to aggravated damages, he or she must show that the conduct of the defendant was neither bona fide nor justifiable.
Applying those principles to the present case, I would conclude that the additional matters relied on by the appellant are not grounds which may be taken into account by the Court in considering an award of damages absent any evidence of mala fides or lack of justifiability. However, they may be taken into account in assessing an award of general compensatory damages.
(emphasis added)
367. I will first consider general damages before turning to aggravated damages.
368. In relation to general damages the parties correctly submitted that there is no daily “tariff” of damages in cases of this kind. Rather, the principles relevant to the award of general damages in cases such as these are set out above. This does not mean, however, that previous awards of damages cannot be considered.
369. In this case, the Plaintiff’s counsel submitted that the Plaintiff suffered significant deprivation and impositions beyond his loss of liberty. The Plaintiff further submitted that he had spent 58 days in custody and that the Defendants’ conduct in defending the proceeding justified an increase in the award of general damages (or an award of aggravated damages).
370. As a result of his incarceration, the Plaintiff submitted that he had suffered disruption to his personal and working life and that “the effects on him were profound”. The Plaintiff also referred in his written closing submissions to the conduct of the arresting officers and where the arrest took place.
371. The Plaintiff submitted that the case of Spautz was a “close analogy” in this case, noting that in that case related to 56 days imprisonment. Counsel submitted that “on a rough calculation of present-day values” the general damages award was $150,000 (which corresponded to the Plaintiff’s claim in this case).
372. The Plaintiff also referred me to the case of Morro submitting that in that case $95,000 was awarded for general damages. The Defendants correctly submitted that this award included the award for economic loss.
373. The Plaintiff also referred in oral submissions to the case of Lewis where Refshauge J notionally assessed damages for an imprisonment at $100,000 for 82 days.
374. The Plaintiff ultimately submitted that an award of $150,000 was appropriate by way of general damages.
375. This award was justified in the Plaintiff’s submissions given the significant loss of liberty by the Plaintiff as well as the conditions that he was subject to while incarcerated.
376. The Plaintiff submitted in written submissions that the factors that he pointed to in relation to aggravated damages (which in turn relate to the Defendants’ conduct in defending this proceeding) could also bear on a general damages award: McDonald v Coles Myer Ltd [1995] NSWSC 67; Aus Torts Rep 81 at [62]. As I will outline in my discussion concerning aggravated damages, I do not accept the Plaintiff’s submissions concerning those factors and, accordingly, they do not bear on the assessment of general damages.
377. The Defendants submitted that the Plaintiff spent 58 days in custody and that the Court may take judicial notice of the fact that this would have been an “unpleasant experience”.
378. The Defendants further submitted that the evidence of the arrest was not relevant to general damages as the case was one of false imprisonment, not wrongful arrest. In doing so, the Defendants noted that a substantial portion of an award of this general kind is for the shock of being arrested – a factor not present in this case. The arresting officers or their agency are not defendants in this proceeding. Damages cannot be awarded for any conduct of the arresting officers as such.
379. The Defendants submitted that the Plaintiff had abandoned any claim for damages in respect of “anxiety, nightmares, flashbacks, shame, trauma and mental harm”. Instead, the Defendants submitted that the Plaintiff’s claim should be limited to the loss of liberty as outlined in the Plaintiff’s amended reply.
380. The Defendants submitted that the case of Spautz could be distinguished from the present case. In particular, the Defendants submitted that in Spautz the plaintiff had no criminal history, suffered reputational damage and a “substantial” part of the damages award related to his arrest in front of his university colleagues. As I have noted above, in this case the arrest itself cannot bear on the damages award.
381. The Defendants submitted that this case was more similar to the case of Morro where the Plaintiff was awarded $55,000 in general damages (which included economic loss). The Defendants submitted that in that case evidence had been provided to the court from a psychiatrist and psychologist as to the effects of long-term imprisonment on the plaintiff.
382. The Defendants ultimately submitted that an award of $40,000 for general damages was appropriate in this matter given the longer period of imprisonment in Morro the economic loss and the specific psychological evidence led in that case.
383. I accept that submission. In my view, the appropriate award for general damages in this case would have been $40,000.
Aggravated Damages
384. The Plaintiff advanced four specific matters that he submitted justified an award of aggravated damages as well as advancing two broader submissions justifying such an award. I will turn first to the specific matters, and then discuss the broader issues.
385. First, the Plaintiff submitted that the Defendants declined to apologise to the Plaintiff in open court in the presence of the Plaintiff.
386. The Plaintiff submitted that this is a case where the absence of an apology should sound in an award of aggravated damages, for a number of reasons.
387. First, the Defendants were on notice of this issue. Second, this is not the case of an absence of apology made in unexplained circumstances. The Defendants expressly declined to make an apology to the Plaintiff in his presence in open court after evidence was led from the Plaintiff regarding the trauma, fear, humiliation and despair which he had experienced as a result of his detention. Third, the Defendants’ explanation for not apologising to the Plaintiff was because there was no mistake of an officer of the Territory. Counsel for the Plaintiff submitted that there clearly was a mistake in the detention of the Plaintiff and submitted that attempting to attribute that mistake to the AFP does not assist the Defendants.
388. The second matter the Plaintiff relies on to justify a claim for aggravated damages is the Defendants’ attempt to minimise the Plaintiff’s experience in custody by objecting in closing submissions to parts of his evidence.
389. This submission was directed to comments made by counsel for the Defendants when he stated:
…there is no particulars in the pleading of any incident, event, thing, that is alleged to have happened to the plaintiff during the course of his detention. I accept that questions about being searched, for example, are legitimate because they are officers of the AMC. They are available to me. I can make enquiries about them, but if there’s to be evidence led about any incident from some other inmate, matters of that kind, they should have been particularised so we could make enquiries before the hearing started.
390. The Plaintiff submitted that in making this submission, the Defendants invited the Court to disregard evidence properly adduced by the Plaintiff of his experience in custody. This statement, the Plaintiff submitted, is dismissive and disrespectful of the experience of the Plaintiff and the “travesty” that was visited upon him. The Plaintiff noted that while he had disavowed reliance on evidence about his interactions with his cell mates in favour of the Court accepting a general conclusion about the nature of prisons. The Plaintiff did not abandon his right to rely on the evidence that was otherwise adduced of his experience in jail, including the intrusive searches which he experienced. In the result, the Plaintiff submitted that it was wrong on the part of the Defendants to suggest some prejudice in their not being able to investigate these matters.
391. Third, the Plaintiff submitted that the Defendants submitted that the Plaintiff’s human rights are of less value than others. This submission was referable to the Defendants’ submission that the facts of this case could be distinguished from the facts in Spautz. It is worth setting out in full the submission that the Plaintiff objects to in full:
With respect, that comparison is inact. Mr Butterworth [the Plaintiff in Spautz] was a senior lecturer with no prior criminal history who had suffered considerable reputational damage as a result of his arrest and detention.
392. The Plaintiff submitted that this submission (directed at distinguishing the present case from that of Spautz) was, in effect, a submission that the Plaintiff’s human rights were of a lesser value than that of a senior lecturer and was based on the Plaintiff’s “status” and “criminal history”.
393. Fourth, the Plaintiff submitted that counsel for the Defendants asked questions which were “clearly designed to belittle and humiliate the Plaintiff”. This submission was directed to counsel asking the Plaintiff what the Plaintiff submitted were irrelevant questions about him vomiting and his separation from his wife.
394. The Plaintiff submitted that these matters establish his claim for aggravated damages and referred me to the case of Lewis where Refshauge J discussed awards of aggravated damages in false imprisonment cases, stating at [285] that:
… a failure to offer an apology may be relevant to the assessment of ordinary general damages if it shows a continuing injury to the plaintiff’s feelings without justification, but will not justify an award of aggravated damages unless the failure can be shown to have been the result of conduct that lacked bona fides or was otherwise improper or unjustifiable …
(emphasis added)
395. As is apparent from his Honour’s reasoning, the absence of an apology alone is not sufficient to support an award of aggravated damages. Rather, the Plaintiff must demonstrate that such a failure is the result of conduct that lacked bona fides or was otherwise improper or unjustifiable. The Defendants referred me to other authorities in support of that proposition, as, in my view, those principles are not in contention between the parties there is no need to consider those cases in detail.
396. The Defendants submitted that in this case, any such failure to apologise was not a result of conduct that lacked bona fides or was otherwise improper or unjustifiable. Overall, the Defendants submitted that they were entitled to defend the proceedings in the manner that they did and the conduct of the Defendants and their legal representatives throughout the hearing was not lacking in bona fides or otherwise improper or unjustifiable.
397. In relation to each of the points advanced by the Plaintiff, the Defendants submitted the following.
398. First, the Defendants submitted that the explanation of the purported lack of apology advanced by the Plaintiff does not mirror the actual conduct of counsel. It is useful to set out in full the oral submission advanced by counsel for the Defendants:
… as your Honour knows, that's not exactly what happened and we point this out in the schedule of damages. First of all, the exchange which is referred to did not occur in the presence of the plaintiff. The plaintiff had been sent out of the court. So, it was an occasion where an objection had been taken to the question and the plaintiff wasn't there. And it's not as if I came out and said, your Honour, I want to announce to your Honour that I don't apologise. What happened was I'd expressed some regret to the plaintiff when I stood up. My learned friend took some issue with that and pointed out there hadn't been an apology and your Honour asked me the direction question, 'Do you have instructions to apologise?' and I said, 'No.' Your Honour, that's what happened and in my submission there's nothing improper or unjustified about that. …
399. I agree with that submission. I note, in particular, that counsel for the Defendants had expressed a general regret to the Plaintiff and had not refused in front of the Plaintiff to apologise to him as the Plaintiff submitted. I do not find that the conduct lacked bona fides or was otherwise unjustifiable.
400. In relation to the submission that in closing the Defendants had minimised the Plaintiff’s experience, counsel for the Defendants submitted that the points had been properly made. The question to be asked is whether the conduct rises to such a level that is improper or unjustifiable. The submission by the Defendants concerning the Plaintiff’s evidence as to the Plaintiff’s experience in jail does not in this case rise to such a level. The submission arose in the context of a case where specific instances that had occurred in jail had not been pleaded, and the Defendants accepted that the Court could make a general finding as to the conditions in the jail. I have addressed both of these matters in more detail in my reasons on the substantive issue. In those circumstances, the Defendants had a basis on which to advance their submission, and there is nothing in the manner that the submission was put that could be construed as an attempt to suggest the Plaintiff was lying, or that the events had not occurred. That is to minimise them. Rather the submission was that as specific matters had not been pleaded this Court ought not to have regard to that particular evidence.
401. In relation to the contention by the Plaintiff that the Defendants submitted that the Plaintiff’s human rights are of a lesser value than others, the Defendants submitted that this was directed to their submission that Spautz is not a comparative case which did not rise to the level of a submission that the Plaintiff’s human rights are of any lesser value than any other human. I agree. There is nothing from the language of the submission that would tend to suggest that the Plaintiff’s human rights were of any lesser value than any other individual. If such a submission were made it would obviously be wrong. The submission was merely directed to distinguishing the facts of this case from the facts of Spautz a case that counsel for the Plaintiff relied on in relation to general damages. There is nothing in the submission that was improper or unjustifiable.
402. In relation to the final point, the Defendants submitted that the questions were not directed to a belittling purpose and that after a couple of questions concerning the night of his arrest an objection was made by counsel for the Plaintiff. Following an “accord” that the Plaintiff would not take a Browne v Dunn point, the Defendants’ counsel stopped the line of questioning. In my view, there was nothing improper or unjustified in relation to that questioning of the Plaintiff.
403. The Plaintiff also advanced a general submission as to the conduct of the Defendants in defending the proceeding, referring the Court to the statutory model litigant obligations contained in the Law Officer (Model Litigant) Guidelines 2010 and, in particular, cl 3.1(6) which requires the First Defendant and its agencies not to:
… rely on a technical defence which will delay or circumvent the resolution of the issues involved in the litigation …
404. This was supplemented by the common law model litigant obligation: Melbourne Steamship Co Ltd v Moorehead (1915) 15 CLR 333 at 342.
405. The Plaintiff submitted that were I to find that the Defendants pursued any technical defences or in the conduct of the proceeding breached their model litigant obligations then this could inform my assessment of aggravated damages. In my view, the Defendants did not rely on technical deficiencies in this proceeding or pursue the case in a manner that breaches their common law model litigant obligations. I note that counsel for the Plaintiff did not identify any specific defences as being technical in nature or not pursued in a bona fide manner, nor did counsel identify any specific conduct that was said to have breached the common law model litigant obligation.
406. In my view, the Defendants’ conduct in defending the proceeding did not rise to the level of being improper or unjustifiable. The decision to therefore contest the proceedings is not lacking in bona fides, nor was there any conduct on behalf of the Defendants’ legal representatives that would justify an award of aggravated damages.
407. There is one final matter that the Plaintiff submitted justified an award of aggravated damages.
408. In relation to exemplary damages, the Plaintiff had originally submitted in his written closing submissions that such an award should be made on the basis of the five days the Plaintiff spent in custody after the issue concerning the legal effect of the SIFVO had been raised with the DPP by the Plaintiff’s lawyers.
409. There was no reference to exemplary damages in the Plaintiff’s final schedule of damages, nor was it referred to in the pleadings. In oral submissions in reply, counsel for the Plaintiff conceded that he did not seek exemplary damages, however submitted that the lack of investigation by the DPP and the failure to seek to list the matter promptly after the matter was raised by Legal Aid justified a significant award of aggravated damages.
410. The Defendants submitted that the Court should not entertain the submission, it having been made for the first time in closing submissions. The Defendants further submitted that there was no evidence before the Court as to what occurred in the five days after the notification (in part because exemplary or aggravated damages on that basis had not been pleaded and so no evidence on the issue had been led).
411. In my view, there is not sufficient evidence before the Court as to what occurred after Legal Aid notified the DPP of the concern that the SIFVO was not of any legal effect. That lack of evidence cannot support a finding that the DPP’s conduct was uneasonable. There is not, in my view, sufficient evidence for the Court to find that any delay on behalf of the DPP was lacking in bona fides or was otherwise improper or unjustifiable.
412. Accordingly, no award for aggravated damages will be made.
Interest
413. Had my conclusions been different in relation to the liability issues, I would have given the parties leave to provide revised proposed interest figures for interest on past economic loss, future economic loss and interest on general damages as at the date of the judgment.
Conclusion on Damages
414. In conclusion on damages, in the event that I had reached a different view concerning the liability issues then, in my view, it would have been appropriate to award the Plaintiff the following damages:
Head of Damages Amount I would have awarded Reference Paragraph General Damages $40,000 [364]-[383] Past Interest To be calculated [413] Future Interest To be calculated [413] Past economic loss $12,600 [340]-[343] Interest on past economic loss To be calculated [413] Superannuation on past economic loss $1,386 [344]-[355] Future economic loss $10,000 [356]-[363] Aggravated Damages None [384]-[412] Total $63,986
Stay Proceedings
415. On 2 July 2021, Crowe AJ stayed the proceedings against the Third and Fourth Defendants until further order. The Plaintiff indicated in closing submissions that he would be in a position to “address the conduct of [the] proceedings [against the Third Defendant and Fourth Defendant] at the Court’s convenience” following provision of the reasons for decision.
416. Accordingly, I shall make no orders at this time in relation to the orders of Crowe AJ on 2 July 2021. If the Plaintiff seeks any further order or direction in relation to the stay orders, he may file and serve written submissions in relation to the issue within 14 days. The Defendants may then file and serve any written submissions in reply 7 days thereafter. Subject to further order or direction, any application to vary the stay orders is to be dealt with on the papers.
417. In those submissions, the parties also have leave to indicate what, if any, further orders they seek regarding the proceedings as against the Third and Fourth Defendants.
Costs
418. My provisional view in relation to costs is that, in accordance with the general rule, costs ought to follow the event. The Defendants will be awarded costs on a party-party basis.
419. If, however, either party wishes to advance a different contention in light of these reasons they may file and serve brief written submissions limited to four pages in length relation to costs within 14 days. If any such submissions are filed, any reply submissions limited to two pages in length are to be filed and served 7 days thereafter. Subject to further order or direction, any outstanding costs issues will be dealt with on the papers.
Orders
420. I make the following orders:
1. The Plaintiff’s application against the First Defendant and the Second Defendant is dismissed.
2. The Plaintiff is to pay the First and Second Defendant’s costs of the proceeding as assessed or agreed.
3. The parties have leave to file submissions limited to four pages in length if any party seeks a different costs order within 14 days of the date of these reasons for judgment.
4. The parties have leave to file submissions in reply limited to two pages in length seven days after the deadline in order 3.
5. Subject to further order or direction, any outstanding costs issue is to be decided on the papers.
6. If any submissions on costs are filed by any party, the operation of order 2 is stayed until further order or direction.
7. The Plaintiff has leave to file written submissions if he seeks any order regarding the stay as against the Third and Fourth Defendants within 14 days of the date of these reasons for judgment.
8. The Defendants have leave to file submissions in reply within seven days after any submissions are filed by the Plaintiff concerning the Third and Fourth Defendants.
9. Subject to further order or direction, any application regarding the stay is to be dealt with on the papers.
I certify that the preceding four-hundred and twenty [420] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson
Associate: Andrew Ray
Date: 28 September 2022
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