Fernando by his Tutor Ley v Commonwealth of Australia & Anor

[2015] HCATrans 190

[2015] HCATrans 190

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P22 of 2015

B e t w e e n -

W LLOYD NIRMALEEN FERNANDO BY HIS TUTOR JOHN ROBERT BRODERICK LEY

Applicant

and

COMMONWEALTH OF AUSTRALIA

First Respondent

HONOURABLE GARY HARDGRAVE

Second Respondent

Application for special leave to appeal

FRENCH CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 14 AUGUST 2015, AT 9.30 AM

Copyright in the High Court of Australia

MR J.L. CAMERON:   May it please the Court, I appear for the applicant, on the instructions of Messrs Mony de Kerloy.  They are instructed by the litigation guardian, Mr Ley.  (instructed by Mony de Kerloy Barristers & Solicitors)

MR R.E. WILLIAMS, QC:   I appear with MR P.R. MACLIVER, for the respondents, if the Court pleases.  (instructed by Australian Government Solicitor)

FRENCH CJ:   Mr Cameron, it might assist us to hear from you in relation to the second proposed ground, which is the remitter ground, which appears at 2.2 of your draft notice of appeal at page 243.

MR CAMERON:   If your Honour pleases.  Your Honours will appreciate from the background that Mr Fernando was detained in immigration detention for 1,203 days.  He successfully challenged the ‑ ‑ ‑

FRENCH CJ:   We understand the point you are making about the nominal damages question, and we will hear from the respondent about that first.  I just wanted to find out what is the special leave aspect of the question about the remitter which is raised by the second ground?

MR CAMERON:   Well, it is, of course – and I must admit that it is less likely to attract a grant of special leave than the first ground, but it is associated with the first ground ‑ ‑ ‑

FRENCH CJ:   Well, that is all right, but ‑ ‑ ‑

MR CAMERON:   In our submission, there was an unfairness in the exercise of the primary judge’s discretion by allowing the Commonwealth and the Acting Minister to raise the nominal damages argument in the circumstances of the case because, of course, the first Full Court had remitted the matter to the primary judge for the assessment of substantial damages, including, if warranted, exemplary and aggravated damages.  In those circumstances, in our submission, the terms of the remittal precluded the nominal damages argument being raised.

But there were other reasons why his Honour should not have exercised the discretion in that manner.  Firstly, it had never been pleaded.  It was our submission before the second Full Court that that required a pleading, such as a confession and avoidance – in other words, if it be found that Mr Fernando was unlawfully detained, then he was only entitled to nominal damages.

At first instance, prior to the remittal, his Honour had awarded Mr Fernando $3,000 in general damages, and $25,000 in exemplary

damages.  Then, after the remittal, the $3,000 in general damages was replaced by an award of nominal damages.  In other words, it was replaced by damages of a different character.  We are not quibbling about the amount, we are quibbling about the character of those damages.  It is our submission that in the circumstances of the case, his Honour should not have entertained the argument on nominal damages, but should have assessed substantial damages, having regard to the 1,203 days in which the first Full Court had found that Mr Fernando had been unlawfully detained.

FRENCH CJ:   Well, is it right to say it is really an argument about the exercise of the judge’s discretion?

MR CAMERON:   Yes, an argument about the exercise of the judge’s discretion.  In our submission, it is so plainly unfair as to attract the visitation jurisdiction.

FRENCH CJ:   Now, can I just take you for a moment to the draft notice of appeal at page 242?  There seems to be some kind of discontinuity.  There is a ground 2.2 that appears at 243.  I am just wondering, is there a 2.1 that should be in there somewhere?  There is a 2.1, I think, in the application for special leave.  I just want to make sure that there is no text that has been left out in the draft notice.

MR CAMERON:   No, your Honour, I think it is a matter of misnumbering rather than any omission.

FRENCH CJ:   So the 2.1 covers (a) and (b), is that right.

MR CAMERON:   Yes, your Honour.

FRENCH CJ:   Yes, all right.  Mr Williams, we might hear from you now.

MR WILLIAMS:   If the Court pleases.  On nominal damages, there is no reason, your Honours, to doubt the correctness of the Full Court when it observed that the relevant compensatory principle was identified rather than established in Lumba.  That is because that compensatory principle is as much part of the common law of Australia as it is of the common law of the United Kingdom, and two principles ‑ ‑ ‑

FRENCH CJ:   Well, who should declare that?

MR WILLIAMS:   I suspect that that might be the forensic hurdle, your Honours.  We would say that this Court has already made that fairly clear in CPCF, where four members of the Court – I note Justice Keane is on the Bench – including your Honour, could be taken to have confirmed that that principle in relation to nominal damages was available to the Full Court here.  True it is, and I conceded at the outset, that there was very little argument and very little time directed in that case, CPCF, to the issue, and true it is that it did not arise in respect of several of the reasons for judgment because the questions were answered in such a way that it was unnecessary to answer question 6, I think it was, as to nominal damages.

Your Honours, what I can say in answer to your Honour the Chief Justice is this; five members of the Supreme Court in Lumba were clearly of the view that if the two plaintiffs in that case had been detained anyway, they would be entitled to no more than nominal damages.  It is true that three members of the Bench entertained the prospect of vindicatory damages, but Lord Dyson thought it was “an unruly horse”; Lord Collins thought that there is a mark of disapproval by a finding of nominal damages anyway, as did Lord Kerr.

That, your Honour, strikes one as consistent with the approach of this Court, and I had in mind the case of – it is not in our list – Lamb v Cotogno, where the award of exemplary damages was challenged on the basis that it would not be paid by the wrongdoer, but by the nominal defendant.  This Court in that case said that there was still a sense of appeasement in an award of nominal damages in that sense; it is a related matter.  The direct answer to your Honour the Chief Justice is it does not need declaring.  One has to ‑ ‑ ‑

KEANE J:   Well, it probably could benefit from a decision as to the juridical basis on which the question should be resolved.  As you say, there was a variety of views expressed in the House of Lords.  There was a variety of views expressed, plainly obiter, in CPCF.  It is hard not to say this is not a question that should be resolved by decision.

MR WILLIAMS:   Yes.  I would add that in subsequent cases in the United Kingdom – and I refer to Kambadzi and cases thereafter – take Kambadzi first; two of the members of the Lumba court, who would have awarded a small sum by way of vindicatory damage, moved towards a position where they thought nominal damages was an appropriate remedy.  But I accept that there is a wide range of views about it.  If your Honours are of the view that this Court should declare it, we would say by way of short response that the Full Court’s decision is plainly correct, and that it does not require this Court’s attention, but I understand what your Honour is saying.

May I move to address the other points?  These are what the Full Court described as “procedural and directions issues” and “discretionary issues”.  The applicant argued that the orders made by the Full Court rendered the award of substantial damages res judicata, and I

think that the Full Court identified an alternative basis upon which that argument could be examined and looked at issue estoppel.

The Full Court is plainly correct in the circumstances.  No error is identified by the applicant, who now asks the Court here for the first time to look at other phrases that were used in the reasons for judgment of the first Full Court to support a similar argument that there was some sort of res judicata in relation to the decision of the first Full Court.  It should be borne in mind that the question of compensatory damage was never before the first Full Court.  It was not essential to any of the issues, or any of the orders that the first Full Court made.  That is the short point we would say about that.

As to the exercise of discretion, involving a matter of practice and procedure against settled principles applied in an orthodox way and so held to have been exercised by the Full Court, we would say no error has been identified by the applicant in relation to that discretion.  The applicant relies upon Banque Commerciale in relation to the late introduction of nominal damages as an issue in the case.  We would reply to that that, in that case, the key consideration is not that the other party is put in a worse position, but they might be so placed.

Here, if your Honours descend into the factual details of what took place, what happened was this; after the first trial, the primary judge refers to the parties during one of several directions hearings to the Lumba Case.  In subsequent directions hearings, the trial judge, as the Full Court and the primary judge so say in their judgments, afforded the opportunity to the applicant here to call whatever evidence he wanted to call; in other words, the primary judge was effectively putting the applicant back in the position he would have been in at the beginning of the trial.  There was, in truth, no prejudice to the applicant.  Those key considerations that are referred to in Banque Commerciale apply in this case.  That is all I would say on that point.  Your Honours, just going back to the nominal damages point – no, thank you.

FRENCH CJ:   Thank you.  Do you want to respond on the remitter issue?

MR CAMERON:   There are only two matters that I would raise, your Honour.  In respect of the CPCF Case, it came before this Court by way of case stated with a number of agreed facts ‑ ‑ ‑

FRENCH CJ:   Sorry, I asked you if you wanted to respond on the remitter question.

MR CAMERON:   I am sorry, your Honour.  No, I do not wish to respond on the remitter matter.

FRENCH CJ:   There will be a grant of special leave.  This will be confined – and I think we need to be clear about this, Mr Cameron ‑ the draft notice of appeal is a bit of a mess.  You will have to file an amended notice of appeal.  The basis upon which special leave will be granted will be in relation to the ground presently designated 2(a); that is, that the Full Court erred:

(a)when it upheld the finding of the primary judge that the applicant was entitled to only nominal damages for the 1,203 days on which he had been unlawfully detained –

The rest of it appears simply to deal with the remitter question; (b) has nothing to do with (a), so far as I can tell.

MR CAMERON:   As your Honour pleases.

FRENCH CJ:   So you will need to file an amended notice of appeal, and that will have to be done promptly.  There is a standard form timetable for the submissions which you should have available to you.  I would think this would be half a day to a day?

MR CAMERON:   Half a day, I thought.

FRENCH CJ:   Yes, all right, thank you.

AT 9.46 AM THE MATTER WAS CONCLUDED