On appeal from the Supreme Court of the Australian Capital Territory
Representation
P D Herzfeld with P A Tierney for the appellant (instructed by Ken Cush & Associates)
P J F Garrisson SC, Solicitor-General for the Australian Capital Territory, with H Younan for the respondent (instructed by ACT Government Solicitor)
S P Donaghue QC, Solicitor-General of the Commonwealth, with C J Tran for the Commonwealth, intervening (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Lewis v Australian Capital Territory
Damages – Tort – False imprisonment – Where appellant convicted and sentenced to 12 months' imprisonment served by periodic detention – Where appellant breached obligations of periodic detention – Where appellant liable to arrest without warrant – Where Sentence Administration Board ("Board") required by statute to decide to cancel appellant's periodic detention – Where Board's decision was held invalid for lack of procedural fairness – Where appellant unlawfully imprisoned in full-time detention for 82 days following Board's invalid decision – Where appellant's liberty already qualified and attenuated – Where appellant's imprisonment would otherwise have lawfully occurred – Where appellant awarded nominal damages – Whether award of only nominal damages appropriate – Whether appellant entitled to substantial compensatory damages – Whether vindicatory damages available.
KIEFEL CJ AND KEANE J. The factual and procedural background to the issue presented by this appeal is sufficiently summarised in the reasons of Edelman J. Gratefully accepting his Honour's summary of that background, and of the arguments presented by the parties, we are able to proceed directly to state our reasons for concluding that the appeal should be dismissed.
We agree with Edelman J that the appellant's claim for an award of substantial damages cannot be sustained. In particular, we agree that the notion that "vindicatory damages" is a species of damages that stands separately from compensatory damages draws no support from the authorities and is insupportable as a matter of principle. With one qualification, we also agree that the application of the compensatory principle articulated in cases such as Haines v Bendall[1] does not support an award of compensatory damages in this case because a counterfactual analysis in relation to the issue of causation reveals that the false imprisonment caused the appellant no loss that he would not have suffered had he not been falsely imprisoned.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Lewis v Australian Capital Territory [2020] HCA 26
Case
[2020] HCA 26
Decision Date
CaseChat Overview and Summary
In Lewis v Australian Capital Territory, the High Court of Australia considered an appeal concerning damages for false imprisonment. The appellant, Mr Lewis, had been sentenced to periodic detention but breached its conditions. Following an invalid decision by the Sentence Administration Board to cancel his periodic detention, Mr Lewis was unlawfully imprisoned in full-time detention for 82 days. He argued he was entitled to substantial compensatory damages for this period of unlawful imprisonment.
The central legal issue before the High Court was whether Mr Lewis was entitled to substantial compensatory damages for his false imprisonment, or if an award of nominal damages was appropriate. This required the Court to consider the nature of the tort of false imprisonment, the principles of causation and loss in the context of damages, and the availability of vindicatory damages. The Court also had to determine whether Mr Lewis's liberty was already qualified and attenuated due to his breaches of periodic detention, and whether his imprisonment would have lawfully occurred in any event.
The High Court reasoned that while Mr Lewis had indeed been falsely imprisoned due to the invalidity of the Sentence Administration Board's decision, he was not entitled to substantial compensatory damages. This was because, at the time of his unlawful imprisonment, Mr Lewis was already liable to be arrested without warrant and placed in full-time detention due to his breaches of periodic detention. The Court found that, but for the invalid cancellation of his periodic detention, he would have been lawfully imprisoned for the same period. Therefore, he suffered no actual loss of liberty that could be compensated by substantial damages. The Court also held that there was no basis for a new head of damages described as "vindicatory damages" under Australian common law.
The High Court dismissed the appeal with costs, upholding the award of nominal damages. This outcome affirmed that where a plaintiff's liberty would have been lawfully curtailed in any event, they are not entitled to substantial compensatory damages for a period of false imprisonment, even if that imprisonment was technically unlawful due to procedural defects.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Moreover, having regard to the nature and purpose of existing remedies, there is no basis in principle, or practice, for the development of a new head of so‑called vindicatory damages. The appeal should be dismissed with costs.Facts and the statutory regime Mr Lewis pleaded guilty to intentionally or recklessly inflicting actual bodily harm[60] by smashing a glass into a person's face and was sentenced to 12 months' imprisonment, to be served as periodic detention. [60]Crimes Act 1900 (ACT), s 23. At the time[61], Ch 5 of the Crimes (Sentence Administration) Act 2005 (ACT) ("the CSA Act") governed periodic detention. An offender was required to serve periodic detention in accordance with the obligations imposed by the CSA Act[62]. An offender was required to report for each period of detention and to perform activities or work[63]. Section 58(4) provided that an offender was taken not to have performed periodic detention, and was to have their periodic detention period extended by one week, where, among other circumstances, the offender failed to report for detention without approval[64] or gave a positive test sample of drugs or alcohol[65]. Where s 58 applied to an offender for a second or subsequent detention period, the chief executive[66] had to apply to the Sentence Administration Board ("the Board") for an inquiry under s 66[67].[61]Given that the issue here concerns the Sentence Administration Board's actions, the version of the legislation as at July 2008, when the decision to cancel Mr Lewis' periodic detention was made, is used. [62]CSA Act, s 42.[63]CSA Act, s 49.[64]CSA Act, s 58(1)(a).[65]CSA Act, s 58(3)(c).[66]See Legislation Act 2001 (ACT), s 163.[67]CSA Act, s 59. Mr Lewis breached certain obligations: he failed to report to the periodic detention centre for the periods commencing 1 February, 28 March and 4 April 2008 and he returned a positive test sample for alcohol when he reported for periodic detention on 11 April 2008. The Board conducted an inquiry under s 66 to decide whether Mr Lewis had breached any of his periodic detention obligations. That inquiry was the result of an application by the chief executive[68]. Before starting such an inquiry, the Board must give written notice to the offender[69]. On 19 April 2008, Mr Lewis signed an acknowledgement of having received a notice of inquiry relating to the alleged breaches. On or about 12 May 2008, Mr Lewis left Canberra without informing any authorities and did not report for periodic detention after that date. [68]CSA Act, s 66(3)(b), (4).[69]CSA Act, s 67. Between 12 May and 7 July 2008, the Board sent correspondence to Mr Lewis at his mother's address. This correspondence related to the breaches of the periodic detention order and the Board's directions to Mr Lewis to attend its inquiry. Mr Lewis' mother did not pass on this correspondence to him. Mr Lewis became aware of the letters when he returned to Canberra around 7 July 2008, but he did not read them. If the Board conducts an inquiry under s 66 as a result of a referral by the chief executive (as in this case), s 69 sets out the consequences of a finding by the Board that s 58 applies to an offender in relation to two or more detention periods. Section 69(2) says that "[t]he [B]oard must, as soon as practicable, cancel the offender's periodic detention under section 68" in such circumstances. That is, the statute requires detention in the form of full-time imprisonment.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ
KEANE J
GAGELER J
GORDON J
In the course of argument, counsel for the appellant put the appellant's case in a way which revealed the insuperable difficulty confronting the appellant's claim for an award of other than nominal damages. It was said that "until the process of law was validly applied against him so as to authorise his imprisonment, he was not allowed to be imprisoned". This articulation of the appellant's case squarely misstates the position that arose upon the appellant's failure to comply with the terms of his sentence. There was no question of the Board being "allowed" to imprison the appellant: under the Act, the Board was required as soon as practicable to order that the appellant be placed in full‑time custody to serve his sentence. And until the Board was able to perform its function, the appellant was unlawfully at large in that he was liable to be arrested without warrant.Conclusion Even though the appellant's periodic detention order had not been validly cancelled by the decision of the Board, and consequently the appellant had indeed been falsely imprisoned when he was placed in full‑time detention, an award of substantial damages, such as might be warranted in the case of a person lawfully at large who is falsely imprisoned, is not available here. The appellant was not lawfully at large when he was taken into custody. As a result he suffered no loss in terms of his right to be at liberty that might be reflected in an award of substantial, rather than nominal, damages. For these reasons, we agree with the orders proposed by Edelman J. The appeal cannot succeed. Mr Lewis has no entitlement to compensatory damages for loss of liberty or dignity given the likelihood that he would have been lawfully imprisoned for the same period under the same conditions had the conduct which constituted his wrongful imprisonment not occurred. Lacking an entitlement to compensatory damages and having no arguable entitlement to aggravated or exemplary damages, his right to liberty is vindicated by the nominal damages he has been awarded. On the topic of the non-recognition of a distinct species of "vindicatory damages" under the common law of Australia, I agree with Gordon J and have nothing to add to her Honour's reasons. On the topic of the non-entitlement of Mr Lewis to compensatory damages for his wrongful imprisonment, I choose to explain my reasoning in my own words. That is in part to explain why I cannot adopt the threshold approach preferred by Kiefel CJ and Keane J and in part to expound the factual and counterfactual analyses which I consider to be involved.The tort of wrongful imprisonment "To constitute the injury of false imprisonment", as Sir William Blackstone put it, "there are two points requisite: 1. The detention of the person; and, 2. The unlawfulness of such detention."[20] Despite the onus shifting to the defendant to negative the element of unlawfulness where the plaintiff establishes the element of detention[21], it is detention in combination with unlawfulness that constitutes the tort. Through the tort, the "right to personal liberty" is protected by the common law - not from all restraints, but from those restraints for which "lawful authority"[22] cannot be shown.[20]Blackstone, Commentaries on the Laws of England (1768), bk 3 at 127.[21]Brown v Lizars (1905) 2 CLR 837 at 853-854; Watson v Marshall and Cade (1971) 124 CLR 621 at 626; Ruddock v Taylor (2005) 222 CLR 612 at 631 [64], 650-651 [140].[22]Williams v The Queen (1986) 161 CLR 278 at 292. See also Blackstone, Commentaries on the Laws of England (1768), bk 3 at 127.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ,
KEANE J,
GAGELER J,
GORDON J