Featherstone v Australian Capital Territory
[2022] ACTSC 250
•15 September 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Featherstone v Australian Capital Territory |
Citation: | [2022] ACTSC 250 |
Hearing Date: | 28 July 2022 |
DecisionDate: | 15 September 2022 |
Before: | Kennett J |
Decision: | See [68]–[69] |
Catchwords: | PRACTICE AND PROCEDURE – SUPREME COURT PROCEDURE – Strike out application – where related proceedings involving a plaintiff and the Director-General have been finally determined resulting in declaratory relief – where proceedings are subsequently commenced against the Territory – extent to which the principles of res judicata and estoppel apply – whether the Territory is a privy of the Director-General – whether declarations in question operate as a judgment in rem – whether assertions contrary to previous declaration of the Court constitute an abuse of process |
Legislation Cited: | Corrections Management Act 2007 (ACT) ss 14, 16, 20, 45, 140, 229 Corrections Management (Separate Confinement) Operating Procedure 2019 (ACT) (NI2019-384) cl 4.3 Workplace Relations Act 1996 (Cth) |
Cases Cited: | Armstrong v Whitfield (1974) QB 16 Blair v Curran (1939) 62 CLR 464 Williams v Commonwealth [No 2] [2014] HCA 23; 252 CLR 416 |
Texts Cited: | Enid Campbell “Relitigation in Government Cases: a study of the use of estoppel principles in public law litigation” (1994) 20 Monash University Law Review 21 Halsbury’s Laws of England (4th ed), Vol 16 Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7th ed, 2022) |
Parties: | SC 281 of 2021 Damien Glenn Featherstone ( Plaintiff) Australian Capital Territory ( Defendant) SC 311 of 2021 Tian-Jarrah Denniss ( Plaintiff) Australian Capital Territory ( Defendant) SC 373 of 2021 Keith Ernest Frank Carberry ( Plaintiff) Australian Capital Territory ( Defendant) SC 374 of 2021 Peter James Robertson ( Plaintiff) Australian Capital Territory ( Defendant) SC 395 of 2021 Nathan Davidson ( Plaintiff) Australian Capital Territory ( Defendant) SC 396 of 2021 Ronald William Tracey ( Plaintiff) Australian Capital Territory ( Defendant) |
Representation: | Counsel P Tierney ( Plaintiffs) N Oram ( Defendant) |
| Solicitors Ken Cush & Associates ( Plaintiffs) ACT Government Solicitor ( Defendant) | |
File Numbers: | SC 281 of 2021 SC 311 of 2021 SC 373 of 2021 SC 374 of 2021 SC 395 of 2021 SC 396 of 2021 |
KENNETT J:
The plaintiff in each of these proceedings was, at material times, serving a sentence of full-time imprisonment at the Alexander Maconochie Centre (AMC) in Hume, ACT.
In each proceeding the plaintiff seeks damages. Their Originating Claims invoke s 18(7) of the Human Rights Act 2004 (ACT) (HR Act), which confirms the right of a person unlawfully arrested or detained to seek compensation. Their respective Statements of Claim also refer to that provision, but appear to rely (primarily at least) on the tort of false imprisonment.
In both of these aspects the claims are somewhat novel, as it is not asserted that any of the plaintiffs was not liable to be detained. Their detention is said to have been unlawful because restraint was imposed on them over and above what was authorised by the law of the Territory. That additional restraint was that (allegedly contrary to provisions of the Corrections Management Act2007 (ACT) (CM Act)) and the HR Act) they were, on some days when they were held in what is referred to as the “Management Unit” at the AMC, not given access to the open air and allowed to exercise for at least one hour.
In support of these claims, the plaintiffs seek to gain support from declarations and supporting findings that were made in Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83 (Davidson). In the applications currently before me they seek to strike out paragraphs of the Defence filed by the defendant (the Territory) in each proceeding on the ground that they improperly seek to re-litigate points that were decided in Davidson.
Originally, an Application in Proceeding seeking orders striking out parts of the Defences, and consolidation of all the proceedings, was filed only in Featherstone v Australian Capital Territory. Following orders made on the return of that application, a Further Amended Application in Proceeding was filed in Featherstone and an Application in Proceeding seeking substantially the same orders was filed in each of the other proceedings. This judgment deals with these applications in so far as they relate to the striking out of parts of the defences. (I note that another similar proceeding (Martin v Australian Capital Territory (SC 397 of 2021)) was also listed before me for mention on 11 July 2022. However, no Application in Proceeding appears to have been filed in that proceeding.)
The plaintiff in Davidson (Mr Davidson) is the plaintiff in one of the present proceedings. His proceeding against the Territory was commenced on 22 September 2021, when two of the four orders of the Court granting declaratory relief in Davidson had been announced but reasons had not yet been published and the remaining two orders granting declaratory relief had not yet been made. The other proceedings before me were commenced by the filing of Originating Claims at other times, also after the pronouncement of some of the declarations in Davidson but before the publication of reasons. The plaintiffs in these other proceedings were not parties in Davidson.
The structure of these reasons is as follows. First, I will seek to identify what, relevantly, was decided by the Court in Davidson. Secondly, I will consider the extent to which the matters decided in Davidson give rise to an issue estoppel or cause of action estoppel that can be relied on by Mr Davidson in his current claim against the Territory. Thirdly, I will consider whether matters decided in Davidson bind the Territory on other bases which can be relied on by all of the plaintiffs, so as to preclude the Territory from taking a position contrary to conclusions reached in that case. Fourthly, to the extent that conclusions reached in Davidson prevent the Territory from taking contrary positions in these proceedings, I will consider whether the impugned paragraphs of the Territory’s Defences breach that limit.
The decision in Davidson
Mr Davidson commenced his earlier proceeding under s 40C of the HR Act, on the basis that the Director-General was a “public authority” who had contravened s 40B of that Act. Section 40B(1)(a) provides that it is “unlawful” for a public authority to act in a way that is “incompatible with a human right”. The relevant human right was that conferred by s 19(1) of the HR Act, which provides that anyone deprived of liberty must be “treated with humanity and with respect for the inherent dignity of the human person”.
Although the jurisdiction invoked was that conferred by s 40C of the HR Act, much of the argument in Davidson appears to have focused on provisions of the CM Act. The contention (which was accepted) that aspects of the treatment of Mr Davidson did not comply with those provisions seems to have been treated as sufficient (absent sufficient justification) to establish a denial of the right conferred by s 19(1) of the HR Act, presumably on the basis that that right takes its specific content in part from the particular statutory provisions that govern the treatment of persons in detention. If that understanding is correct then it was clearly open to the Court, in exercise of the broad remedial power in s 40C(4) of the HR Act, to make declarations recording failures to comply with the CM Act.
Relevantly for present purposes, the Court made two such declarations:
(1)that access to the rear courtyard of the Management Unit at the AMC does not comply with s 45 of the [CM] Act.
(2)that cl 4.3 of the [Corrections Management (Separate Confinement) Operating Procedure 2019 (ACT) (NI2019-384)] is invalid by reason of it being inconsistent with s 45 of the [CM] Act.
Each of these requires some further explanation. First, it is necessary to set out s 45.
45Access to open air and exercise
(1)The director‑general must ensure, as far as practicable, that detainees—
(a)have access to the open air for at least 1 hour each day; and
(b)can exercise for at least 1 hour each day.
(2)The standards under subsection (1) may both be satisfied during the same hour on any day.
(3)For chapter 10 (Discipline), this section is taken to provide an entitlement for each detainee in relation to access to the open air and exercise.
There were agreed facts in Davidson that the Management Unit has two “general exercise yards”, one on the “hard side” and one on the “soft side”. The yard on the hard side is 4.84m wide and 7.25m long, with two concrete walls and two walls (and the ceiling) made of metal mesh. Meanwhile, each cell in the unit houses one detainee and each has an adjoining “rear courtyard”. The rear courtyard is of a similar size to the cell (2.33m wide and 3.6m long), has four block walls, and is covered by a metal mesh ceiling.
The Court conducted a view of these facilities and considered relevant authorities, in Australia and overseas, on the meaning of “access to the open air” and “can exercise”. The Court held that the rear courtyard was not located in the “open air” (at [319]) and that it was not an adequate space for the purpose of exercise (at [323]). This was the basis for the declaration that access to the rear courtyard was “does not comply” with s 45.
I note that what s 45 requires of the Director-General is that access to the open air and exercise be “ensured”, “as far as practicable”. There was evidence concerning the reasons why Mr Davidson had not been provided with access to the general exercise yard (which, it was accepted, would meet the requirements of s 45 if ensured for one hour or more per day). More will need to be said about this evidence. Declaration 1, however, does not address Mr Davidson’s circumstances or the reasons for denial of access to the general exercise yard. I therefore take the point established by Declaration 1 to be that access to the rear courtyard does not constitute “access to the open air”, or provision of a sufficient space to exercise, for the purposes of s 45. If compliance with s 45 is to be achieved, that must be done by provision—or at least giving proper consideration to provision—of access to the general exercise yard or some other facility.
The subject of the second declaration was a clause of a “Procedure” (the Corrections Management (Separate Confinement) Operating Procedure 2019 (ACT) (NI2019-384) (2019 Operating Procedure)) published under s 14 of the CM Act. That provision (clause 4.3) is as follows:
4.3The open rear cell door will count as the minimum one (1) hour of fresh air and exercise.
A statement that a legislative or administrative act is “invalid” normally means that, by reason of some error or want of power, it does not affect legal rights or duties in the way that it purports to. The sense in which the term is used in relation to an operational procedure purporting to be made under s 14 needs some explanation, because such procedures do not have the status of legislation and the extent to which they are capable of affecting legal rights is doubtful.
Under s 140(3)(b) of the CM Act, the Director-General is required to ensure that weapons or restraints are used by corrections officers only “in accordance” with a relevant corrections policy or operating procedure. That is the only instance I have been able to find in which a policy or procedure made under s 14 is expressed to have an effect on legal powers, rights or duties; and it does so not by binding officers directly, but by requiring the Director-General to direct officers in a particular way. Many other matters are required or expressly allowed by provisions of the CM Act to be addressed by policies and operating procedures, but these provisions do not make the policies or procedures into binding legal rules. However, the Director-General also has power to give “directions” under s 16, and corrections officers are “subject to” those directions: s 20(1)(b). There is also a power vested in the Territory Executive to make regulations dealing with certain matters: s 229.
I therefore infer that s 14 was not intended by the legislature to confer a delegated law-making power of the traditional kind. Policies and operating procedures under s 14 were intended to guide decision-making by corrections officers under the CM Act in the interests of consistency and predictability, but s 14 does not confer power to make an instrument directly affecting the rights of detainees or the powers or duties of officers. Policies and procedures under s 14 are a form of “soft law”, which is not amenable to a declaration of “invalidity” in the sense I have mentioned above: see Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7th ed, 2022), [12.210]. The authors of that work quote Professor Wade’s rhetorical question: “how can it be ultra vires if it has no vires to be ultra?” Declaration 2 needs to be understood in that light.
Read literally and in isolation, cl 4.3 of the 2019 Operating Procedure purported to do something that no subordinate legislative instrument can do in the absence of specific authority. Plainly the Director-General had no power, under s 14 or any other provision, to make a rule that would control the meaning of s 45 of the CM Act. Section 45 does what it does, regardless of any attempt by any official to specify what is meant by “the open air”. In that sense it is not inapt to describe the clause as “invalid”; but that (somewhat trite) conclusion does not require the analysis that the Court undertook of the authorities and the facts in relation to the rear courtyard. Nor do I think it very likely that, in publishing cl 4.3, the Director-General was seeking to override the proper construction of s 45 or exclude its operation.
Rather, in my view, cl 4.3 is to be understood as an instruction to corrections officers, in performing their functions under the CM Act, to proceed on the basis that access to the rear courtyard counted as access to “the open air” and exercise for the purposes of s 45; so that, if a detainee had access to the rear courtyard for one hour per day, the Director-General would regard himself as having complied with s 45 in respect of that detainee for that day. Correspondingly, Declaration 2 is to be understood as establishing that that view is wrong; and that, if officers deny a detainee access to the general exercise yard solely in reliance on cl 4.3, the result will be a failure to comply with s 45. There will be a failure not because of that denial per se (because the obligation in s 45 is not absolute), but because the denial is based on the incorrect understanding reflected in cl 4.3 rather than on genuine assessment of what is “practicable” in the circumstances of the particular case. The clause embodies a wrong understanding of s 45, and is in that sense “invalid”.
The Court made two further declarations in Davidson. These were:
(3)pursuant to s 40C of the [HR Act] that the defendant has breached the plaintiff’s human rights under s 19(1) of the [HR Act].
(4)pursuant to s 32 of the [HR Act] that cl 4.3 of the 2019 Operating Procedure is incompatible with the plaintiff’s human rights under s 19(1) to be treated with humanity and with respect for the inherent dignity of the human person while deprived of liberty.
Declaration 3 clearly addresses Mr Davidson’s circumstances and does not have wider application. The same is true of Declaration 4, which appears to be an application to his circumstances of the broader legal analysis underpinning Direction 2.
For the purpose of their application the plaintiffs place particular reliance on certain evidence given in Davidson by Mr Gregory Tarlinton, who was described as the Area Manager of Accommodation (Corrections Officer Level 3). Mr Tarlinton prepared an affidavit which was read by the Director-General, the contents of which are summarised in the Court’s reasons at [128]–[147]. To a significant degree it responded to the evidence of other witnesses. He also gave oral evidence which is summarised at [148]–[174]. Relevantly to the present issues, the Court described part of his evidence in cross-examination as follows (at [162]–[163]).
It was put to Mr Tarlinton that the only reasons that Management Unit detainees are not allowed to access the general exercise yard is due to the hand-cuffing procedure, which could be adequately addressed by the installation of a hatch or remote access to the general exercise yard; the risk of detainees scaling the fence; and the risk that the detainees will scale the fence and sit on the CCTV camera. Mr Tarlinton accepted that those were reasons that contributed to the decision, but further emphasised that the size of the general exercise yard creates an issue if a detainee is not compliant and requires restraint. Mr Tarlinton further accepted that another reason that the general exercise yard is not utilised is because the rear courtyard is used as the default.
Mr Tarlinton gave evidence that there was no exception to the rear courtyard being used as the default and there is no assessment to determine whether a detainee can access the general exercise yard. Of the general exercise yard, Mr Tarlinton stated “we don’t use it” and confirmed this had been the practice since cl 3.4 [sic] of the 2019 Operating Procedure came into effect. Mr Tarlinton stated that a risk assessment to determine whether or not a detainee can access the general exercise yard is “not something we do as part of a person’s fresh air and exercise”.
In addition to the Court’s description of this evidence, my attention was drawn by the plaintiffs to part of the transcript of Mr Tarlinton’s cross-examination, which is as follows:
The real reason, isn’t it, that – so the rear courtyard at the moment is used as the default. Right? --- Yes.
And there may be an exception where a person – a detainee is assessed as possibly going to the general exercise yard from time to time? --- Not at the moment, no.
So there’s no policy of - - -? --- We don’t use it.
You don’t use the general exercise yard at all? --- No. No.
And how long has that been going for? --- That’s been in place, I would say, since the new policy - - -
Since 2019? --- - - in 2019. Yes.
And so have you seen clause 4.3 before of that 2019 policy? --- You can remind me.
Yes. Of course I’ll take you to it. So in that court book, if you go to page 80? --- Page 80.
Yes? --- Yes.
And page 81, is that the 2019 policy that you were talking about? I will just move you to page 84? --- Yes. You’re right. Yes, that is the one. That’s the separate confinement one.
Yes. So can you see clause 4.3 on page 84? --- The open rear cell door, walking out has a minimum of one our of fresh air and exercise.
Yes. And so what you’re saying is that the general exercise yard is not used at all because of that clause, because of that direction? --- That’s right. And the thing is that as soon as that door is open there is access to fresh air and exercise. If it’s raining you can get wet. If it’s sunny there’s sun coming in. You can look out the back window. So it’s obviously not as big as the other yard but I don’t think there’s any size that is has to be of what you should be given access to.
The key point sought to be drawn from Mr Tarlinton’s evidence appears to be that access to the general exercise yard was denied as a matter of policy, because of cl 4.3, and not on the basis of any assessment of practicality for a particular detainee on a particular day. The evidence, as recorded and as summarised, can certainly be understood in that way. However, evidence given by a witness that makes a useful point for the other side is not ipso facto an “admission” by the party calling that witness. Nor, without more, does it form part of the issues decided in the proceeding. It is necessary to consider the findings made by the Court as the basis for the declarations referred to above.
The Court referred at [410] to “a policy not to use the general exercise yard, access is not granted”. Mr Tarlinton’s evidence is referred to in the same paragraph, albeit not expressly as the source of the finding that such a policy existed. Paragraph 410 is part of the Court’s reasoning as to whether, for the purposes of s 40B(1)(b) of the HR Act, the Director-General had given “proper consideration” to Mr Davidson’s rights under s 19. In other words, it was part of the reasoning leading to Declarations 3 and 4 rather than Declarations 1 or 2.
Declaration 1, as noted above, is more general in its terms. The reasoning leading to that declaration (see at [333]) begins with a heading posing the question whether, by providing Mr Davidson with access to the rear courtyard, the Director-General had acted consistently with s 45 (at [285]). Declaration 1 does not answer that question, because it addresses only the adequacy of the rear courtyard and not whether access to open air had been provided “as far as practicable”. The structure of the reasoning was as follows.
(a)The defendant’s submissions were summarised.
(i)The summary began by noting a submission that the issue did not depend solely on the physical characteristics of the rear courtyard, and that access to the open air had been provided “so far as the considerations of the safety and security of the AMC permit” (at [285]).
(ii)Next, the Director-General’s arguments that the rear courtyard amounted to “the open air” and provided the ability to exercise were summarised (at [286]–[292], [293]–[297]).
(iii)The Director-General’s submissions as to whether access to the open air and exercise were provided “as far as practicable” were summarised in detail at [298]–[313]. These submissions dealt with several discrete issues and arguments raised by Mr Davidson. The Director-General was recorded at [303] as having submitted that “the plaintiff’s submission that detainees who were not at risk of self-harm were still not permitted to access the general exercise yard was a generalised submission without reference to a specific detainee and as such, was unsupported by evidence” (emphasis added). It was also submitted by the Director-General that the contention that no individualised risk assessment was performed for the purposes of s 45 was “not an accurate representation of the evidence” (at [309]). Reference was made in this connection to other parts of Mr Tarlinton’s evidence.
(iv)Ultimately the Director-General opposed a declaration along the lines of Declaration 1 because “it could not be said that there is no circumstance in which access to the rear courtyard complies with s 45” (at [314]).
(b)Under the sub-heading “Consideration”, the Court set out a series of submissions advanced by Mr Davidson which it accepted.
(v)First, that the issue (which I take to mean the issue whether the rear courtyard constituted access to “the open air”) was one of fact (at [315]).
(vi)Second, that the rear courtyard was “not located in ‘the open air’ and its use therefore does not constitute compliance with the defendant’s obligation to ensure access to the open air” (at [319]).
(vii)Third, that the rear courtyard was not an adequate space for exercise and use of it therefore did not satisfy s 45(1)(b) (at [323]).
(viii)Fourth, that access to the general exercise yard (which would comply with s 45(1)) was not ensured “as far as practicable” (at [331]).
(c)At [332]–[333], the Court returned to the question whether access to the rear courtyard was sufficient to constitute access to “the open air” and to exercise, referred to a submission of the Human Rights Commissioner, and noted that Declaration 1 had been made.
(d)The fourth element of Mr Davidson’s submissions mentioned at (b) above (as to whether access was provided as far as practicable) took issue with three arguments apparently advanced by the Director-General. It was contended that these did not justify the failure to provide access to the open air and to exercise. Those arguments related to staffing levels; to the presence of what were referred to as “ligature points” in the general exercise yard; and to risks to the security of corrections officers if the general exercise yard was used. In agreeing with Mr Davidson the Court considered and rejected each of these arguments as a sufficient justification for denying Mr Davidson access to the general exercise yard. The closest that this analysis came to an express reliance on the evidence of Mr Tarlinton concerning cl 4.3 was the following passage at [331] recording:
It was emphasised that the plaintiff’s entitlement under s 45 had not been temporarily limited due to a state of emergency, natural disaster of [sic] other such extreme situation. Instead, it had been permanently denied as a matter of facility. For that assumption to justify not providing detainees with open air and exercise defeats the very purpose of the minimum entitlement contained in s 45.
The passage cited in the previous paragraph appears to record, and implicitly endorse, a proposition that Mr Davidson had been denied access to the general exercise yard on an a priori basis and essentially permanently rather than as a response to particular circumstances. However, there is no reference anywhere in this part of the Court’s reasons to the answers Mr Tarlinton gave in cross-examination concerning cl 4.3.
It should also be noted that the submissions that were being considered in this part of the Court’s reasons did not connect logically with Declarations 1 and 2. As noted above, these declarations concern the adequacy of the rear courtyard from the point of view of s 45 and the consistency or otherwise of cl 4.3 with s 45. They do not touch upon the reasons why, in fact, Mr Davidson or any other detainee was not allowed to use the general exercise yard. Identification and criticism of those reasons was of course relevant to Declaration 3, and this aspect of the Court’s reasons should be understood as looking forward to the issues to be resolved in respect of that prayer for relief.
In summary, therefore, I do not accept that the reasoning of the Court in Davidson depended in any essential way on explicit acceptance of the evidence Mr Tarlinton gave about the application of cl 4.3. However, the reasoning underpinning Declaration 3 (that Mr Davidson’s human rights had been infringed) does appear to rest in part on a finding that access to the general exercise yard was denied without regard to individual circumstances. In the light of the evidence that was before the Court, I accept that this finding should be taken to be based at least in part on an understanding that corrections officers relied on cl 4.3. Declarations 1 and 2 (which are not limited in their terms to Mr Davidson’s circumstances) do not rest on that finding.
Mr Davidson’s current proceeding
The operation of doctrines of res judicata and estoppel arising out of the determination of issues in a judicial proceeding was summarised by four Justices of the High Court in Tomlinson v Ramsay Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 (Tomlinson) at [20]–[23] (French CJ, Bell Gageler and Keane JJ). Relevantly to the present case, their Honours noted at [22] that the form of estoppel which is now referred to as “issue estoppel”:
… operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment.
(citations omitted)
The propositions of fact and law embodied in the four declarations that the Court made in Davidson are res judicata as between Mr Davidson and the Director-General. Any contention to the contrary of them by the Director-General in a subsequent proceeding would necessarily fail. Further, issue estoppel would prevent the Director-General from contending to the contrary of the Court’s conclusions on issues “necessarily resolved as a step in reaching” those conclusions of fact and law. Those conclusions include the finding at [410] (probably at least partly based on Mr Tarlinton’s evidence) that there was a policy not to use the general exercise yard. That finding was an important foundation for the conclusion that the Director-General had not given proper consideration to Mr Davidson’s rights under s 19 of the HR Act, which in turn was necessary for the conclusion embodied in Declaration 3.
The Director-General, however, is not a party to the present proceedings. Rather, Mr Davidson (consistently with the usual approach in unlawful imprisonment cases) sues the Territory. That is to say, the juristic entity alleged to be liable for damages for unlawful imprisonment is the polity—not its executive (cf Williams v Commonwealth [2012] HCA 23; 248 CLR 156, [21] (French CJ)) and not any particular officer. The question that therefore arises is whether findings made in Davidson against the Director-General also bind the Territory.
Issue estoppel, as described in Tomlinson, has the effect that an issue determined in a judicial proceeding “cannot afterwards be raised between the same parties or their privies” (at [22], quoting Blair v Curran (1939) 62 CLR 464, 531). The issue before the High Court in that case was whether Mr Tomlinson was precluded from asserting (in a personal injury claim) that Ramsay Food Processing Pty Limited was not his employer, in circumstances where the Federal Court had declared in earlier proceedings commenced by the Fair Work Ombudsman that he was employed by that entity. Thus, the key question was whether he was relevantly a “privy” of the Fair Work Ombudsman.
The test of privity is the same for all forms of estoppel arising from the rendering of a final judgment (at [23]). Accordingly, while I have described the estoppel on which Mr Davidson relies as issue estoppel, it does not matter if concepts of cause of action estoppel arise as well.
In answering the question of privity favourably to Mr Tomlinson, the majority was concerned to explain and apply the principle stated in the earlier case of Ramsay v Pigram (1968) 118 CLR 271, 279 (Ramsay) (Barwick CJ) as follows:
The basic requirement of a privy in interest is that the privy must claim under or through the person of whom he is said to be a privy.
Ramsay concerned a collision between vehicles driven by the respondent and a police officer. The police officer had successfully sued the respondent in negligence and resisted a defence of contributory negligence. The respondent then sued the Government of New South Wales, represented by the appellant as nominal defendant, for damages alleging negligence by the police officer. The High Court held that there was no privity of interest between the State and the police officer, and the appellant therefore could not rely on an issue estoppel arising out of the earlier proceeding. As Barwick CJ put it (at 279), the Government had no interest in the earlier proceeding and the police officer had not in any sense commenced it on behalf of the Government. Nor could it be said the Government in any sense “claims under or in virtue of the police officer or of any right of his, or that it derives any relevant interest through him”.
Privity was also found not to be present in Tomlinson, even though the earlier proceeding had been run for the benefit of a group of workers that included Mr Tomlinson and he had been a witness in the case for the Fair Work Ombudsman. The Ombudsman was not claiming “under or through” Mr Tomlinson; rather, he was exercising a statutory power to commence proceedings to enforce the Workplace Relations Act 1996 (Cth). Neither the Fair Work Ombudsman’s power to commence the proceeding nor the orders that were made in that case were dependent on Mr Tomlinson’s own legal entitlements (at [44]). This was contrasted with traditional forms of representation which result in the person represented being bound, such as representation by an agent, a trustee, a tutor or guardian (at [40]).
In reaching this conclusion the majority made the following points that are of relevance to the issues here:
(a)The higher-level principle that underpins the rule extending an estoppel to privies is identified in a maxim which translates as “who takes the benefit ought also to bear the burden” (at [29]). That rationale supports application of the preclusive effect of an estoppel to a person who those who “claim under” or were “represented by” the original parties but does not support its extension more broadly.
(b)As was said at [33]:
Consistently with the rationale for the principle, the explanation demonstrates that a party to a later proceeding ("A") can be privy in interest with a party to an earlier proceeding ("B") on either of two bases. One basis is that A might have had some legal interest in the outcome of the earlier proceeding which was represented by B, or that B has some legal interest in the outcome of the later proceeding which is represented by A. The extent to which the representation by A or B will be sufficient to bind the other is the critical issue which will be explored later in these reasons. The other basis is that, after that earlier proceeding was concluded by judgment, A might have acquired from B some legal interest in respect of which B would be affected by an estoppel which A then relies on in the later proceeding.
(c)The interest of the privy in the other proceeding must be a legal interest. Close association between the parties (even amounting to effective control) is not enough (at [35]). Nor is it enough that a person stood to benefit from success of their alleged privy in the other proceeding (at [36]–[37]).
The concept of privity so far applied in Australia is consciously narrower than that adopted in some other common law countries (Tomlinson at [17]). The English position, which has also been adopted in Canada and New Zealand, is outlined and criticised in KR Handley, Spencer Bower and Handley: Res Judicata (LexisNexis, 5th ed, 2019) (Handley) at [9.42].
Applying that concept, the Territory is not a privy of the Director-General in the circumstances of this case. The Territory does not claim any legal interest derived from rights asserted by the Director-General in Davidson; nor were its interests represented by the Director-General in that case. What was in issue was whether the Director-General, in performing functions reposed in him by statute, had complied with duties imposed on him by statute. The Territory had no legal interest in the outcome of the proceeding; it was not represented in a relevant sense by the Director-General; the Director-General was not asserting any right based on rights of the Territory; and here the Territory does not assert any right based on rights of the Director-General.
This is the case even though Mr Davidson necessarily sets out to prove that his detention was not authorised by law, and alleged failures by the Director-General to comply with statutory requirements imposed on him are apparently central to that claim. Things done by or in the name of the Director-General, and already the subject of findings and declaratory orders, are therefore critical. However, that does not distinguish the case from Ramsay, where (as noted above) no estoppel arose to prevent the conduct of the police officer—already found not to have been negligent—from being relitigated.
Thus, no form of estoppel arises to prevent the Territory from asserting a position in Mr Davidson’s proceeding that is contrary to conclusions on issues of fact and law in Davidson.
That does not mean, of course, that those conclusions are irrelevant. Aside from the other bases upon which those findings are said to be binding (discussed below in connection with all of the proceedings), principles of stare decisis mean that the Court would not depart from the legal reasoning in Davidson unless convinced that it was plainly wrong. The expectation that the Territory will act as a model litigant might also have some role to play if discretionary questions arise. However, neither of those doctrines could support the striking out of paragraphs of the Territory’s defence.
Before turning to the other matters, I note that the Territory has filed an Application in Proceeding seeking orders that Mr Davidson’s proceeding be permanently stayed or dismissed as an abuse of process. The argument, put shortly, is that it was unreasonable for Mr Davidson not to have raised the claim he now makes against the Territory in his earlier proceeding, given the significant factual overlap. Counsel for the Territory submitted that I should stand over Mr Davidson’s application to be heard and determined at the same time as the Territory’s application. As will be apparent, I have decided not to take that course. The issues raised by Mr Davidson’s application overlap with those raised in the other proceedings (which are addressed below), so that to stand his application over would effectively bifurcate the argument. I also consider that it is preferable for the Territory’s application to be determined on the basis of a settled understanding of what issues are in play, and capable of being in play, in Mr Davidson’s proceeding.
Arguments raised in all proceedings
Two further arguments were advanced as to why the Territory should not be permitted to rely on assertions or arguments to the contrary of what was decided in Davidson. To the extent that either is correct, it is available to all of the plaintiffs.
Judgment in rem
First, it was submitted that the declarations made in Davidson have the status of a judgment in rem and are therefore binding regardless of any question of identity of parties or privity.
Judicial decisions are commonly said to operate either in rem (against a thing) or in personam (against a person), which is somewhat confusing because sometimes the rem can be a person (Handley at [10.01]). The distinction is between judgments that conclusively determine the status of a person or thing, and thus its (or their) legal relationship to persons generally, and judgments which decide the rights of particular persons (normally parties to a dispute) between themselves. The former class—judgments in rem—are often said to be binding on the world (although that may overstate their effect given the territorial limits on courts’ jurisdiction). “Judgment in rem” is thus a conclusory term, describing the result of an analysis, rather than an analytical tool. Whether a judgment applies in rem depends on its subject-matter and content.
In order to operate in rem, a judgment relating to a thing must have the characteristics summarised by Drummond J in Wik Peoples v Queensland (1994) 49 FCR 1, 4–5, as follows:
(1)First, the location of the thing the subject of the judgment must be within the control of the State under whose authority the Court sits. If the thing is land, the land must be located within the territory of that State.
(2)Secondly, the judgment must be a decision as to the status or disposition of the thing. What this involves is explained in Halsbury’s Laws of England (4th ed), Vol 16 where it is said, in par 969, that, to be a judgment in rem in relation to a thing, the judgment: "must affect the ’res' in the way of condemnation, forfeiture, declaration of status or title, or order for sale or transfer". In McGovern v State of Victoria [1984] VR 570 it was said at 576:
"... A judicial decision which creates title to or affects property in a thing in possession is a decision that determines the status of that thing and, to that extent, is conclusive in rem."
(3)Thirdly, the judgment must purport to be given in the exercise of a jurisdiction to determine the status or disposition of the property in question conferred on the Court by the authority of the State. Typically, this element will be found to exist in the fact that a statute confers jurisdiction on a court or tribunal for the specific purpose of determining the status or disposition of property of the kind in question in the proceedings. See, e.g., The City of Wakefield v Cooke (1904) AC 31 and Armstrong v Whitfield (1974) QB 16.
(4) Fourthly, the Court must have acted within that jurisdiction in giving the judgment.
As to persons, a judgment determining a person’s matrimonial, professional or civic status is said to operate in rem. A conviction or acquittal in a criminal case operates in rem because it decides conclusively whether a person is a convict. Such decisions are to be contrasted with, for example, a judgment awarding a sum of damages to A against B.
The fact that an order takes the form of a declaration is not inconsistent with it operating in rem. It depends on the issues as to legal rights, effects or status that the declaration settles. For example, in P E Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437 (Yehuda), the Land and Environment Court of NSW, in a proceeding brought by the local council, had made a declaration that premises were being used in contravention of an interim development order and conditions of a development consent. In later proceedings commenced against the occupier by a private individual, the Court of Appeal held that the declaration operated in rem and the occupier therefore could not relitigate the validity of the relevant conditions. Hope JA (with whom Samuels and McHugh JJA agreed) said at 445:
… the res, whether it be the land or the consent, has a status which is not derived from any private arrangement but from the decision of a public authority exercising the statutory powers conferred upon it. As I have previously said, the consent granted by the Waverley Council did not involve a matter of private law; it involved the public law. The granting of the consent was a public act affecting the status of the land. The consent was also a thing in itself, deriving its status from the statute and instruments made pursuant to the statute. The status of the land and of the consent is a matter in which the public generally are interested, although of course the appellants and the Waverley Council are more directly interested than other persons. … If Perrignon J, in addition to the declaration and orders which he made, had made a declaration that conditions 3 and 7 were valid, I would have no doubt that to that extent his decision would have been a judgment in rem, binding upon everyone. The decision would have been a decision within jurisdiction of a court of record upon which a power to make such declarations has been expressly conferred, the Supreme Court which previously had that power being at the same time denied the right to exercise it. The declarations would have directly affected, in the relevant sense, the status of the land and/or the consent in the same sense that declarations declaring conditions 6 and 8 invalid would have affected that status.
There is force in the proposition that an order by a superior court declaring the legal effect (or lack thereof) of a purported exercise of a public power should be regarded as settling that issue generally, and not only between the parties to the litigation. It is also supported by obiter dicta in Gilbertson v South Australia (1976) 15 SASR 66, 73 (Bray CJ). In the same vein, a leading textbook asserts that a writ of certiorari operates in rem (although no authority is cited in favour of the proposition): Handley, [10.20]. However, as Professor Campbell showed in an article published in 1994, this view has by no means been consistently applied in the cases: “Relitigation in Government Cases: a study of the use of estoppel principles in public law litigation” (1994) 20 Monash University Law Review 21, 34–36 (on the validity of legislation), 36–38 (on administrative decisions). It may be that often the issue is simply not considered; or it may be that there are distinctions to be made between different categories of case that have not yet been articulated. For example, where arguments concerning the validity of legislation or an executive act turn on fundamental constitutional principles, it does not seem to have been suggested that the point cannot be re-argued (even between the same parties): see Queensland v Commonwealth (1977) 139 CLR 585 (referred to by Professor Campbell) and more recently Williams v Commonwealth [No 2] [2014] HCA 23; 252 CLR 416. There are no doubt good reasons why that should be so.
Declaration 2 in Davidson is, on its face, a declaration of invalidity directed at a provision in a statutory instrument. If that is how it is to be understood, the authority of Yehuda suggests (subject to the uncertainty noted in the previous paragraph) that it should be understood to operate in rem. However, as I have endeavoured to explain above, the declaration is best understood as not establishing that cl 4.3 is “invalid” in the usual sense of that term. The substance of the declaration, in my view, is that cl 4.3 is inconsistent with s 45 of the CM Act in the sense that reliance on it by corrections officers results in failure to comply with that section. So understood, it is a declaration concerning the legal consequences of conduct, not the status of a person or thing. Declaration 2, therefore, does not operate in rem.
Declaration 1 is concerned with a physical space, but not with its ownership or status. Rather, it establishes what will be one of the legal consequences of using that space in a particular way. It, too, is directed at conduct and not at a person or thing. It therefore does not operate in rem.
Declarations 3 and 4 resolved a dispute between Mr Davidson and the Director-General as to whether there had been an infringement of his rights under the HR Act. Declaration 3 clearly goes only to conduct (and its consistency or otherwise with standards imposed by legislation). Declaration 4, as I read it, is an application to Mr Davidson’s circumstances of the broader point established by Declaration 2. Neither of these declarations operates in rem.
Even if one or more of the declarations made in Davidson operates in rem, it does so only to the extent of the legal status that it establishes; it does not bind “the world” to accept the findings or conclusions on which the judgment is based: Burden v Ainsworth [2004] NSWCA 3; 59 NSWLR 506, [16]–[27] (Ipp JA, Sheller and Giles JJA agreeing). Furthermore, as I have attempted to explain above, the finding in Davidson that access to the general exercise yard was denied as a matter of policy (presumably at least partly in reliance on cl 4.3) is part of the underpinning of Declaration 3 (which clearly concerns only whether Mr Davidson’s rights had been infringed) and does not connect logically with Declaration 1 or 2. The argument that the declarations are judgments in rem therefore does not assist the plaintiffs in their argument that it is not open to the Territory to contradict the evidence of Mr Tarlinton referred to above or the findings arguably based on that evidence.
Abuse of process
In Tomlinson at [24]–[26], the majority referred to abuse of process as part of the context in which Australian courts have adhered to the relatively narrow approach to privity discussed in that case. The doctrine of abuse of process overlaps with estoppel, but is “inherently broader and more flexible” and “capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute”. It can thus relieve against injustice, by preventing a party taking a step in a subsequent proceeding, in circumstances where that party is not bound by an estoppel.
So understood, the flexible power to grant relief against abuses of process allows doctrines of estoppel to retain their conceptual coherence by dealing with cases of injustice or oppression that occur outside the boundaries of those doctrines. It does not follow, however, that that power should be exercised merely because an issue has been the subject of an earlier decision and the party raising it is not bound by an estoppel. The need for coherence in the law more generally weighs heavily against developing a doctrine of the common law or equity in a way that subverts the balance of competing interests arrived at by other doctrines over decades of accumulated case law: eg Sullivan v Moody [2001] HCA 59; 207 CLR 562, [53]–[55] (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ); CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 239 CLR 390, [38]–[40] (Gummow, Heydon and Crennan JJ). The concept of abuse of process, although flexible, is not and should not be understood so broadly that the careful articulation of principle in Tomlinson becomes irrelevant.
Courts are therefore cautious in dismissing proceedings or striking out pleadings on the ground of abuse of process. In Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; 53 NSWLR 198 at [31] Handley JA (with whom Mason P and Heydon JA agreed) quoted with approval the following statement of principle by Hunt CJ at CL in Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 (Haines):
There are obviously limitations to striking out pleadings or causes of action as an abuse of process upon the basis stated in Reichel v Magrath [(1889) 14 App Cas 259]… The issue determined in the earlier case which is sought to be litigated in the later case must be one which the party propounding it in the latter lost in the former … It must be an issue which was necessarily determined in the earlier case, and one of importance to the final result. It must have been properly argued — by which I mean that … the tribunal which decided it was an appropriate one to do so, that the parties were appropriate contradictors and that the issue was regarded by them as one of importance … In normal circumstances, the decision disposing of the issue must have been a final one … There may also be circumstances in which, notwithstanding the absence of an appeal, it is clear that the earlier decision has overlooked some binding authority, or that it has caused the unsuccessful party a manifest injustice … all the circumstances of the determination in the earlier case may be considered….
In R v O’Halloran [2000] NSWCCA 528; 182 ALR 431 (O’Halloran), Heydon JA observed at [103] that “[t]here cannot be ‘re-litigation’ if there has not been litigation” (emphasis in original). There, the Australian Securities Commission had intervened in earlier civil proceedings involving related parties and issues. The appellant argued that criminal proceedings brought against him by the Commonwealth Director of Public Prosecutions (the DPP) should be stayed as an abuse of process. His Honour (with Spigelman CJ and Mason P agreeing) upheld the judgment of the primary judge refusing to take that step. Part of the difficulty of accepting the appellant’s argument was that the issues were not identical (at [112]). Another part was that neither the appellant nor the DPP (or their privies) had been involved in any capacity in the earlier proceeding. His Honour analysed the cases to which reference had been made and observed at [109]–[110]:
In all these cases the person whose role in later proceedings, whether as moving party or defendant, was characterised as an abuse of process was a person who had been a party to the earlier proceedings. The [DPP] was not a party to the civil proceedings before the Supreme Court. In all of these cases, too, the persons said to have abused process had lost on an issue in the earlier proceedings….
Further, the appellant’s submission does not refer to a statement by Hunt CJ at CL, as construed by, and evidently approved by, Giles CJ Comm Div in State Bank of New South Wales v Stenhouse Ltd [(1997) Aust Torts Reports ¶81-423] that “there will not be an abuse of process if someone not a party to the earlier case wishes to relitigate an issue decided in that case in favour of the opposite party”.
(citations omitted) (emphasis in original)
The same point was made by Beazley P (McColl JA, Tobias AJA and McCallum J agreeing) in O’Shane v Harbour Radio Pty Ltd [2013] NSWCA 315; 85 NSWLR 698, [109]. A similar point was made in the submissions of the Territory in the present case.
It has been observed more than once that abuse of process is “insusceptible of a formulation which comprises closed categories” (Tomlinson at [25]). The statement in Haines that is noted in the extract from O’Halloran set out above might therefore go too far if suggested as a hard-and-fast rule. However, it can safely be said that a point raised in litigation inconsistently with how the issue was decided in an earlier case will rarely if ever have the necessary quality of unfairness, oppression or bringing the court’s process into disrepute to be regarded as an abuse if the party seeking to raise it was not involved in the earlier case. The conclusion seems particularly unlikely if (as here) the point is raised defensively by a party who, not having been involved in the first proceeding, is involved only as a respondent in the second. Indeed, it would be likely to bring the administration of justice into disrepute if a party in that position were prevented from raising a point on the basis that the same point had been decided in another case involving unrelated parties. It might be said that these cases are different from the norm because of the close relationship between the Territory and the Director-General; but to rely on that proposition (assuming it is correct) would undermine the limits on the doctrine of issue estoppel carefully charted in Tomlinson.
At least as the evidence currently stands, I do not think the Defences in the present cases are liable to be set aside as an abuse of process even if they contain assertions that are contrary to points decided in Davidson.
The defences in the present proceedings
Consistency with findings in Davidson
The conclusions I have reached above make it strictly unnecessary to analyse the impugned paragraphs of the defences in order to identify the extent to which they are consistent with findings made in Davidson. I simply observe that many of the impugned paragraphs of the Defences deny or do not admit allegations that decisions about the treatment of the plaintiffs during their time in the Management Unit were based on or made in accordance with cl 4.3. If any of the preclusive doctrines discussed above governed the permissible content of the Territory’s defences in these cases, these paragraphs would very likely be liable to be struck out.
Other complaints about the defences
Counsel for the plaintiffs also submitted that, apart from their inconsistency with Davidson, various paragraphs of the defences were embarrassing in that they did not sufficiently identify what aspects of various allegations were denied or not admitted. However, this complaint was not articulated as a distinct ground of the Applications in Proceeding. Although it was developed to some extent in submissions and briefly responded to by the Territory, no application to amend was made. I do not think it is appropriate to deal with it at this stage.
Counsel for the Territory effectively conceded (justifiably) that there were some deficiencies in articulation of the Defences, but attributed these (also with some justification) to a lack of clarity in the relevant paragraphs of the Statements of Claim to which they responded. He foreshadowed applications to “tidy up” the pleadings. It can rightly be said that the Territory chose to plead to the Statements of Claim rather than seeking further particulars or applying to strike out whatever was unclear. Arguably, perhaps, the Territory is stuck with the consequences of that decision and cannot avoid repleading by blaming the plaintiffs. However, that proposition involves an approach to pleadings that is at odds with the “main purpose” of civil procedure provisions identified by s 5A of the Court Procedures Act 2004 (ACT). Approaching the issue piecemeal and asymmetrically, by striking out parts of the defences while not addressing problems which (it is contended) make a coherent response to the Statements of Claim impossible, would not assist the Court in identifying and resolving the real issues in dispute.
The Court is entitled to expect the parties’ legal representatives to work sensibly together, to ensure that their respective positions are identified with clarity and the issues requiring resolution can be understood (see s 5A(4)). If a professional approach on both sides cannot achieve that by agreement, with appropriate consent orders, the Court will have to determine applications for strike-out, leave to file amended pleadings, and the like. It is important that those matters be brought to a head in such a way that, once they are resolved, the cases can move towards a hearing that is fair and not unduly delayed.
Orders
The orders of the Court will be as follows.
Featherstone v Australian Capital Territory (SC 281 of 2021)
(1)Prayers 1 to 3 under the heading “strike out” of the Further Amended Application in Proceeding filed on 15 July 2022 are dismissed.
(2)The plaintiff is to pay the defendant’s costs associated with the hearing on 28 July 2022.
Denniss v Australian Capital Territory (SC 311 of 2021)
(1)Prayers 1 to 3 under the heading “strike out” of the Application in Proceeding filed on 15 July 2022 are dismissed.
(2)The plaintiff is to pay the defendant’s costs associated with the hearing on 28 July 2022.
Carberry v Australian Capital Territory (SC 373 of 2021)
(1)Prayers 1 to 3 under the heading “strike out” of the Application in Proceeding filed on 15 July 2022 are dismissed.
(2)The plaintiff is to pay the defendant’s costs associated with the hearing on 28 July 2022.
Robertson v Australian Capital Territory (SC 374 of 2021)
(1)Prayers 1 to 3 under the heading “strike out” of the Application in Proceeding filed on 15 July 2022 are dismissed.
(2)The plaintiff is to pay the defendant’s costs associated with the hearing on 28 July 2022.
Davidson v Australian Capital Territory (SC 395 of 2021)
(1)Prayers 1 to 3 under the heading “strike out” of the Application in Proceeding filed on 15 July 2022 are dismissed.
(2)The plaintiff is to pay the defendant’s costs associated with the hearing on 28 July 2022.
Tracey v Australian Capital Territory (SC 396 of 2021)
(1)Prayers 1 to 3 under the heading “strike out” of the Application in Proceeding filed on 15 July 2022 are dismissed.
(2)The plaintiff is to pay the defendant’s costs associated with the hearing on 28 July 2022.
Each proceeding will be listed before the Registrar on 19 September 2022 at 9:30AM for further directions.
| I certify that the preceding sixty-nine [69] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kennett Associate: Date: |
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