Lewis v Australian Capital Territory

[2020] HCA 26

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, KEANE, GORDON AND EDELMAN JJ

STEVEN JAMES LEWIS  APPELLANT

AND

THE AUSTRALIAN CAPITAL TERRITORY  RESPONDENT

Lewis v Australian Capital Territory

[2020] HCA 26

Date of Hearing: 2 June 2020

Date of Judgment: 5 August 2020

C14/2019

ORDER

Appeal dismissed with costs.

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.

Words and phrases – "aggravated damages", "alternative causes", "but for", "causation", "compensatory damages", "compensatory principle", "counterfactual", "damages", "exemplary damages", "false imprisonment", "lawful authority", "liability", "loss", "material contribution", "nominal damages", "periodic detention", "relief", "substantial damages", "substitutionary remedy", "user principle", "vindication", "vindicatory damages", "wrongful act".

Crimes (Sentence Administration) Act 2005 (ACT), Ch 5.

1. 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.

2. 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. In our respectful opinion, however, the appeal should fail in any event, at a point in the analysis anterior to the application of the compensatory principle.

   [1](1991) 172 CLR 60 at 63.

3. The application of the compensatory principle in this case proceeds upon the counterfactual hypothesis that if the appellant had not been falsely imprisoned he would have been imprisoned if the Sentence Administration Board lawfully performed its duty in relation to the cancellation of the appellant's periodic detention order. On this hypothesis, the appellant's position, in the events that actually happened, was no different from the position he would have been in if the Board had not acted unlawfully in cancelling his periodic detention. However, the counterfactual analysis in aid of the application of the compensatory principle is engaged only if it be accepted that the appellant suffered some real loss by the cancellation of his periodic detention and consequent imprisonment. In our respectful opinion, it cannot be accepted that the appellant suffered any real loss at all.

4. As was submitted by the Solicitor‑General of the Commonwealth, which was granted leave to intervene in this Court, the invalid decision of the Board did not deprive the appellant of a moment of freedom from imprisonment that he was legally entitled to enjoy. The appellant's argument leaves entirely out of account the sentence of imprisonment which, together with the operation of the Crimes (Sentence Administration) Act 2005 (ACT) ("the Act"), so qualified and attenuated the appellant's right to be at liberty that he suffered no real loss. The appellant is in the position of a plaintiff who has suffered an infringement of a legal right which, though it entitles the plaintiff to a judgment, gives him or her "no right to any real damages at all" because no real loss has been suffered[2].

   [2]Owners of Steamship "Mediana" v Owners, Master and Crew of Lightship "Comet" (The"Mediana") [1900] AC 113 at 116.

5. It would be quite wrong, in our respectful opinion, to accept that the appellant's non‑compliance with the terms of his sentence was without consequence so far as his right to be at liberty was concerned. In particular, it is not to be thought that his right to be at liberty was the same as that of a person who was not subject to a sentence of imprisonment in the course of execution. The appellant's sentence was in force regardless of any action taken by the Board, whether valid or invalid, in relation to the appellant's periodic detention order. The appellant was unlawfully at large after his first failure to report for detention in that he was liable to be arrested without warrant and brought before the Board to be dealt with under the Act[3]. In addition, because the appellant had failed to report for periodic detention on more than two occasions, and the chief executive had referred the matter to the Board, the Board was required to cancel his periodic detention[4]; and the appellant had no legal basis to say or do anything that would alter that outcome.

   [3]Crimes (Sentence Administration) Act 2005 (ACT), s 64.

   [4]Crimes (Sentence Administration) Act 2005 (ACT), s 69.

6. In these circumstances, as will be apparent upon reference to the relevant legislation, the appellant's position was analogous to that of the plaintiff in a defamation action who, while able to establish that he or she has been defamed by the defendant, also happens to be a person of general bad reputation. The circumstance that a plaintiff has "a bad reputation which could not be made worse" is not a defence to a claim for defamation; but it is a basis for an award of only nominal, rather than substantial, damages[5]. So here, although the appellant had a complete cause of action for false imprisonment because of the unusual course of the litigation between the appellant and the respondent, his right to be at liberty was so qualified and attenuated by the effect of his sentence and the terms of the Act that the impairment of his right to be at liberty could not support an award of other than nominal damages.

   [5]Hobbs v Tinling [1929] 2 KB 1 at 17, 46. See also Scott v Sampson (1882) 8 QBD 491 at 503.

   The legislation

7. The appellant was sentenced under the Crimes (Sentencing) Act 2005 (ACT) ("the Sentencing Act"). By s 10(2) then in force, a court was authorised to sentence an offender to imprisonment, for all or part of the term of the sentence, if the court was satisfied that no other penalty was appropriate. Section 10(3) provided:

   "If the court sentences the offender to imprisonment, the sentence must be served by full‑time detention at a correctional centre, unless –

   (a)the court orders otherwise; or

   (b)the offender is released from full‑time detention under this Act or another territory law."

8. Section 11(2) of the Sentencing Act provided that if a court sentenced an offender to imprisonment for an offence:

   "The court may, in the order sentencing the offender to imprisonment, set a period of the sentence of imprisonment (a periodic detention period) to be served by periodic detention."

9. Section 58 of the Act prescribed the circumstances in which an offender would be taken not to have performed periodic detention. Such circumstances included an offender failing to report to perform periodic detention without approval[6], and reporting to perform but returning a positive test sample in response to a direction under the Act to complete an alcohol and drug test[7].

   [6]Crimes (Sentence Administration) Act 2005 (ACT), s 58(1)(a). Approval could be granted under s 55.

   [7]Crimes (Sentence Administration) Act 2005 (ACT), s 58(1)(b) and (3)(c).

10. Should an offender fail to perform periodic detention on two or more occasions, s 59 of the Act provided that the chief executive "must apply" to the Board for an inquiry under s 66. The purpose of an inquiry under s 66 was "to decide whether an offender has breached any of the offender's periodic detention obligations"[8]. The Board was authorised to conduct an inquiry under s 66 of its own motion or on an application by the chief executive[9].

    [8]Crimes (Sentence Administration) Act 2005 (ACT), s 66(1).

    [9]Crimes (Sentence Administration) Act 2005 (ACT), s 66(3).

11. If, after conducting the inquiry, the Board determined that the offender had breached any of his or her periodic detention obligations, s 68(2) empowered the Board to take one or more of a number of actions; but if, as occurred in the present case, the chief executive applied to the Board under s 59 for an inquiry and the Board, at the inquiry, decided that the offender had failed to perform periodic detention on two or more occasions, s 69(2) of the Act required that the Board "must, as soon as practicable, cancel the offender's periodic detention under section 68". If an offender's periodic detention were cancelled, he or she was required to serve the remainder of his or her sentence by way of full-time detention[10].

    [10]Crimes (Sentence Administration) Act 2005 (ACT), s 79(4).

12. It should also be noted that s 64 of the Act provided that a police officer who believed, on reasonable grounds, that an offender had breached any of the offender's periodic detention obligations was authorised to arrest the offender without a warrant. Under s 64(3) the police officer was obliged to bring the offender before the Board as soon as practicable after arresting the offender.

    An impairment of the appellant's right to liberty?

13. As the Court of Appeal of the Supreme Court of the Australian Capital Territory in this case said, the "illogicality" of the primary judge's view that the Board could not have been satisfied that the appellant had been afforded an opportunity to attend the inquiry at which the cancellation decision was made "cannot here be the subject of further comment"[11]. But the issue of concern here is not whether the appellant's cause of action for false imprisonment was complete. That the appellant was falsely imprisoned is the unchallengeable basis on which the matter comes before this Court. But that does not mean that the appellant suffered an impairment of his rights that can or should be reflected in an award of other than nominal damages.

    [11]Lewis v Australian Capital Territory [2019] ACTCA 16 at [10].

14. As was said by Kirby J in Ruddock v Taylor[12], "the principal function of the tort [of false imprisonment] is to provide a remedy for 'injury to liberty' ... Damages are awarded to vindicate personal liberty". It is the interference with the right to liberty that is vindicated by the cause of action[13], and there must be a "reasonable proportion between the amount awarded and the loss sustained" as a result of the tort[14]. An award of damages "must not exceed the amount appropriate to compensate the plaintiff for any relevant harm he or she has suffered"[15]. The appellant's argument would have it that his failure to comply with the requirements of his sentence had no consequences for his right to be at liberty unless and until the Board was able lawfully to perform its statutory duty. His argument fails to take into account both the statutory requirement upon the Board that he be placed in full‑time custody to serve his sentence, and the circumstance that the appellant was, until the Board was able to carry out its function, liable to be arrested without warrant.

    [12](2005) 222 CLR 612 at 651 [141]. Compare Plenty v Dillon (1991) 171 CLR 635 at 645.

    [13]Ashby v White (1703) 2 Ld Raym 938 at 955 [92 ER 126 at 137].

    [14]Taff Vale Railway v Jenkins [1913] AC 1 at 7. See also Greenlands Ltd v Wilmshurst and the London Association for Protection of Trade [1913] 3 KB 507 at 532-533; Knuppfer v London Express Newspapers Ltd [1943] KB 80 at 91; Miles v Commercial Banking Co of Sydney (1904) 1 CLR 470 at 478.

    [15]Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 61, 66.

15. It may be accepted, as the appellant contends, that the measure of the damages to which he is entitled should reflect the infringement of his legal right not to be imprisoned unlawfully. But it is also necessary to recognise that the appellant was unlawfully at large when he was arrested. He was subject to a sentence of imprisonment for the crime he had committed, and he had no legal basis to insist on being at liberty as if he were not under sentence.

16. In Jacka v Australian Capital Territory[16], the Court of Appeal of the Supreme Court of the Australian Capital Territory rejected a challenge to the constitutional validity of, among other provisions, ss 68(2) and 69 of the Act. It was said that the impugned provisions were invalid because they purported to invest the Board, an organ of the executive government, with federal judicial power. In rejecting that contention, Gilmour J (with whom Penfold J and Walmsley A‑J agreed) made the following observations in relation to the effect of a sentence that included an order for periodic detention[17]:

    "The decision by the board that the appellant had breached his obligations by failing to perform two periods of detention triggered the mandatory cancellation of his periodic detention by the board under s 69(2). However, the appellant's rights and liabilities in that respect had already been framed by the order for his imprisonment. The manner in which he served the sentence of imprisonment already ordered was dependent upon his compliance with the statutory obligations. He was always liable to the sentence of full‑time imprisonment, but permitted by virtue of the terms of the order of imprisonment to serve his sentence by periodic detention conditioned always by his performance of his periodic detention obligations.

    ...

    The offender's full‑time imprisonment as a consequence of the cancellation order is pursuant to the original sentencing orders. The full‑time imprisonment of the offender is the enforcement of those orders, not the cancellation order."

    [16](2014) 180 ACTR 207.

    [17](2014) 180 ACTR 207 at 219 [85], 220 [92].

17. The appellant's right to be at liberty was circumscribed by the demands of justice expressed in the sentence of imprisonment to which he was subject. He was liable to arrest without warrant and to be brought before the Board, and the Board was obliged to annul his periodic detention so that he would be placed in full‑time detention. The extent to which the appellant's right to be at liberty pending the cancellation of his periodic detention order as required by the Act was qualified and attenuated can be illustrated by the consideration that he could not have succeeded in a claim for a writ of habeas corpus if he had been arrested before he could be validly dealt with by the Board. The writ of habeas corpus "does not lie where a person is in execution on a criminal charge after judgment in due course of law"[18]. And in any event, it is inconceivable that a court to which an application for habeas corpus might have been made on behalf of the appellant would have issued an order in his favour given his history of absconding[19].

    [18]Ex parte Williams (1934) 51 CLR 545 at 548. See also at 549‑550; Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman (1994) 68 ALJR 668 at 669; 123 ALR 478 at 480; Re Writ of Habeas Corpus ad Subjiciendum; Ex parte Hooker [2005] WASC 292 at [16]-[23].

    [19]Ex parte Williams (1934) 51 CLR 545 at 551.

18. 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

19. 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.

20. For these reasons, we agree with the orders proposed by Edelman J.

21. GAGELER 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.

22. 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.

23. 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

24. "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.

1. The right to personal liberty continues to be protected by the tort of wrongful imprisonment though liberty is vulnerable to restraint in the exercise of lawful authority. Whether a citizen or an alien[23] and whether subject to a sentence of imprisonment imposed by a court[24] or not, a person whose status or prior conduct renders that person especially vulnerable to detention in the exercise of lawful authority is not an outlaw. The person is entitled to expect that if, when, and for so long as, detention occurs in fact it will occur only in accordance with law. If the person is in fact detained for any period otherwise than in the exercise of lawful authority, the person is entitled to maintain an action for wrongful imprisonment in which the person is entitled to obtain an award of compensatory damages if the compensatory principle is satisfied.

   [23]Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 521, 528; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 19.

   [24]New South Wales v TD (2013) 83 NSWLR 566 at 568-569 [5], 579-581 [55]-[64], 584 [87]-[90], 586-587 [102]-[105], applying Cobbett v Grey (1850) 4 Exch 729 [154 ER 1409], and distinguishing R v Deputy Governor of Parkhurst Prison;Ex parte Hague [1992] 1 AC 58.

   The wrongful imprisonment of Mr Lewis

2. There is utility at the outset in identifying with precision the conduct which constituted the wrongful imprisonment of Mr Lewis and how that conduct resulted in the tortious liability of the Australian Capital Territory.

3. The sequence of events recounted by Gordon J and Edelman J can be seen to expose two pathways to tortious liability for the wrongful imprisonment of Mr Lewis having been visited on the Territory. Absent exclusion of liability by statute, the Chief Executive would have been tortiously liable to Mr Lewis for his wrongful imprisonment by reason of having taken him into custody and having kept him imprisoned under full-time detention without lawful authority. Absent exclusion of liability by statute, each member of the Sentence Administration Board would also have been tortiously liable to Mr Lewis by reason of having participated in making the invalid order for the cancellation of Mr Lewis' periodic detention which was the "direct"[25] or "proximate"[26] cause of that imprisonment by the Chief Executive. There being no issue that the Chief Executive and each participating member of the Board acted honestly and not recklessly in the reasonable belief that his or her conduct was in the exercise of a statutory function, however, the tortious liability of each was excluded by statute and imposed instead on the Territory[27].

   [25]Ruddock v Taylor (2003) 58 NSWLR 269 at 276 [30]; Ruddock v Taylor (2005) 222 CLR 612 at 651-652 [143].

   [26]Myer Stores Ltd v Soo [1991] 2 VR 597 at 629.

   [27]Crimes(Sentence Administration)Act 2005 (ACT), s 179; Corrections Management Act 2007 (ACT), s 223.

4. Both pathways to tortious liability for the wrongful imprisonment of Mr Lewis having been visited on the Territory arrive at the completed tort of wrongful imprisonment by aggregating the conduct of the Board in conducting the inquiry that it did and in making the order that it did with the conduct of the Chief Executive in imprisoning Mr Lewis in full-time detention as the Chief Executive did on the strength of that order. On each pathway, liability for the completed tort of wrongful imprisonment arises from the contribution each actor in fact made to how the wrongful imprisonment in fact occurred. The contribution of the Board was that of active promotion of detention[28]. The contribution of the Chief Executive was that of implementing the detention.

   [28]Myer Stores Ltd v Soo [1991] 2 VR 597 at 629; Ruddock v Taylor (2005) 222 CLR 612 at 642-644 [112]-[118].

5. The analysis at the stage of attributing tortious liability is thus as to "how things came about" without needing to extend to "what made a difference"[29]. Counterfactual analysis enters at the subsequent stage of determining whether, and if so to what extent, the liability of the Territory gives rise to an entitlement on the part of Mr Lewis to compensatory damages.

   [29]See Stapleton, "Perspectives on Causation", in Horder (ed), Oxford Essays in Jurisprudence: Fourth Series (2000) 61 at 61-62. See also Stapleton, "Unnecessary Causes" (2013) 129 Law Quarterly Review 39 at 39, 54-55.

   The compensatory principle 

6. The compensatory principle entitles the victim of a tort to no less and no more than "a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the ... tort had not been committed"[30]. 

   [30]Haines v Bendall (1991) 172 CLR 60 at 63.

7. No threshold of "loss" needs to be met before the counterfactual analysis mandated by the compensatory principle is applied. Whether, and if so to what extent, compensable damage - "loss or harm occurring in fact"[31] - has occurred is determined through the application of the same analysis[32]. The outcome determines the entitlement of the victim of the tort to compensatory damages and sets the outer limit of the extent of that entitlement[33].

   [31]Cattanach v Melchior (2003) 215 CLR 1 at 15 [23], quoting Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435 at 442.

   [32]Harriton v Stephens (2006) 226 CLR 52 at 104 [168], 126 [251], 130-131 [264]-[265].

   [33]Haines v Bendall (1991) 172 CLR 60 at 63.

   The compensatory principle applied to the wrongful imprisonment of Mr Lewis

8. Easily stated, the compensatory principle is not always easily applied. Here, the factual position of Mr Lewis presents no difficulty. He was deprived of liberty and suffered indignity through being taken into custody and subjected to full-time imprisonment.

9. How the counterfactual position is to be determined is not quite so straightforward. Mr Lewis argues that what is necessary is to look to the position he would have been in if the Chief Executive had not taken him into custody and had not kept him in full-time imprisonment. The Territory argues that what is necessary is to look to the position that Mr Lewis would have been in if the Board had observed procedural fairness. Underlying the difference between the two arguments is a question of principle with which neither argument comes to grips.

10. Neither argument gives adequate attention to the elements of the tort of wrongful imprisonment or to how those elements have in fact been satisfied to result in liability on the part of the Territory. The problem with Mr Lewis' argument is that it ignores the conduct of the Board which contributed in fact to the unlawfulness of Mr Lewis' detention. The problem with the Territory's argument is that it does not capture the totality of that conduct. The Board's failure to observe procedural fairness was not itself tortious conduct. The conduct of the Board that contributed in fact to the wrongful imprisonment of Mr Lewis was the totality of its conduct in holding the inquiry (at which it failed to afford procedural fairness) and in going on to make the order (which was in consequence invalid). 

11. The correct approach is to look to the position that Mr Lewis would have been in had the Board not in fact conducted the inquiry that it did and had the Board not in fact gone on to make the order on which the Chief Executive in fact acted. Notwithstanding the inherently hypothetical nature of that counterfactual inquiry, the inquiry necessarily proceeds by drawing inferences from known facts to find the counterfactual position on the balance of probabilities[34]. 

    [34]Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 353.

12. The fact-specific inferential nature of the requisite counterfactual inquiry is, however, subject to an important qualification. The qualification arises from the application to the determination of compensation of the same common law policy that underlies imposition of tortious liability for wrongful imprisonment whenever, but only when, there is a deprivation of liberty that cannot be justified by law. Consistent application of that policy means that compensation for wrongful imprisonment can only be determined by postulating a counterfactual in which all who had lawful capacity to contribute to a deprivation of liberty conducted themselves strictly in accordance with law. The law would be an ass were a person whose position in fact is that he or she has been deprived of liberty by unlawful conduct to be denied compensatory damages through the application of a counterfactual in which he or she would have been deprived of liberty by the same or other unlawful conduct in any event.

13. The policy of the common law therefore demands that counterfactual analysis in a case of wrongful imprisonment be undertaken on the assumption that everyone who had lawful capacity to contribute to deprivation of the plaintiff's liberty acted in strict performance of their legal duties and acted or refrained from acting in strict compliance with the conditions expressly or impliedly imposed on the exercise of their legal powers.   

14. That approach to applying the compensatory principle to determine the existence and extent of any entitlement of the plaintiff to compensatory damages where wrongful imprisonment is established - of comparing the position of the plaintiff in fact with the position the plaintiff would have been in had the wrongful imprisonment not occurred and had all concerned acted strictly in accordance with law - accords with the approach of the Full Court of the Federal Court in Fernando v The Commonwealth[35] and with the approach of the four members of this Court who addressed the issue of compensatory damages in CPCF v Minister for Immigration and Border Protection[36]. The approach can be seen in earlier decisions of the Supreme Court of the United Kingdom in R(Lumba)v Secretary of State for the Home Department[37] and R(Kambadzi)v Secretary of State for the Home Department[38]. Whether the approach has been consistently understood and applied in more recent decisions, in the United Kingdom[39] or elsewhere outside Australia, has no bearing on my view as to its correctness and is not within my province to determine.

    [35](2014) 231 FCR 251 at 268-269 [81]-[89], 283-284 [167]‑[169]. See also Burgess v The Commonwealth (2020) 378 ALR 501 at 542-545 [169]-[180].

    [36](2015) 255 CLR 514 at 570 [157], 572 [164], 610-611 [324]‑[325], 655-656 [511]-[512].

    [37][2012] 1 AC 245 at 281-282 [93]-[96].

    [38][2011] 1 WLR 1299 at 1322 [55]-[57]; [2011] 4 All ER 975 at 1000-1001.

    [39]cf Parker v Chief Constable of Essex Police [2019] 1 WLR 2238 at 2262-2263 [104]-[108]; [2019] 3 All ER 399 at 421-422, as discussed in R(Hemmati)v Secretary of State for the Home Department [2019] 3 WLR 1156 at 1193 [111]-[112]; [2020] 1 All ER 669 at 701-702.

15. Difficulty can arise in applying that approach to determine on the balance of probabilities what would have happened had an invalidly exercised power to detain not been exercised. It cannot simply be assumed that a power to detain that could have been exercised lawfully would have been exercised lawfully if that power had not in fact been exercised unlawfully; and it cannot simply be assumed that all conditions precedent to the enlivening of a statutory duty to detain would have been met. The difficulty is illustrated by the complexity of the counterfactual analysis in which judges at first instance in the Federal Court of Australia have on occasions correctly found it necessary to engage where an alien liable to be detained by any migration officer who held a reasonable suspicion that the alien was an unlawful non-citizen was in fact detained by a migration officer not shown to have held any suspicion at all[40] or whose suspicion was not shown to have been formed on reasonable grounds[41].   

    [40]eg Burgess v The Commonwealth (2020) 378 ALR 501 at 545 [180].

    [41]eg Guo v The Commonwealth (2017) 258 FCR 31 at 95-96 [229]-[235].

16. No difficulty of that kind arises in the present case. Once it is accepted that the counterfactual analysis is to be conducted on the assumption that all who had lawful authority to contribute to the detention of Mr Lewis acted strictly in accordance with their legal duties and in the observance of the express and implied limitations on their legal powers, the counterfactual position of Mr Lewis on the balance of probabilities cannot be in doubt given that Mr Lewis in fact failed to report for periodic detention on more than two occasions and given that the Chief Executive in fact made an application to the Board for an inquiry. Acting strictly in accordance with its statutory duties, the Board would have held an inquiry as soon as practicable in which it would have observed procedural fairness because it had a duty to do so. At the conclusion of that inquiry, the Board would have made a finding because it again had a duty to do so. The finding would in all probability have reflected the fact that Mr Lewis had failed to report for periodic detention on more than two occasions. Having made that finding, the Board would have gone on to make an order cancelling Mr Lewis' periodic detention and would have done so as soon as practicable because yet again it had a duty to do so. Based on that order, the Chief Executive would have taken Mr Lewis into custody and imprisoned him in full-time detention because the Chief Executive had a duty to do so.

17. There is no basis in the known facts to infer that the counterfactual detention of Mr Lewis would have been for a materially different period from the period for which he was in fact detained. Equally, there is no basis to infer that the counterfactual detention would have been under conditions in any way different from those under which he was in fact detained.

    The result

18. In short, the proper inference to be drawn on the balance of probabilities is that, had the conduct which constituted his wrongful imprisonment not occurred, Mr Lewis would have endured the same deprivation of liberty and indignity as he in fact endured. Application of the compensatory principle yielding no compensable loss, he has no entitlement to compensatory damages. His appeal must for those reasons be dismissed with costs.

19. GORDON J.   The law declares that where there is a right, there is a remedy[42]. History has shown that maxim to be an oversimplification[43]. It is, however, a reminder that, in every case, it is necessary to identify the "right" or "duty" at issue, to determine whether that "right" or "duty" has been infringed and then, where liability is established, to address the appropriate relief. Liability and relief are not to be elided. Questions of liability are prior to questions of relief.

    [42]Ashby v White (1703) 2 Ld Raym 938 at 953 [92 ER 126 at 136]. See also Blackstone, Commentaries on the Laws of England (1768), bk 3 at 23.

    [43]See, eg, Kercher and Noone, Remedies, 2nd ed (1990) at 1; Tilbury, Civil Remedies (1990), vol 1 at 2-3 [1005]; Covell and Lupton, Principles of Remedies (1995) at 3‑4 [1.4]; Witzleb et al, Remedies: Commentary and Materials, 6th ed (2015) at 20 [1.95]; Smith, Rights, Wrongs, and Injustices: The Structure of Remedial Law (2019) at 5.

20. Relief, in the form of judicial remedies, is not one-dimensional: remedies have different origins, vary in nature and have different purposes. Some remedies seek to redress the infringement of a "right" by vindication of that "right", some seek to rectify or correct the act that gave rise to the liability, while other remedies seek to address the loss or injury suffered by awarding damages. What remedy or remedies should be awarded requires an assessment of the position of the plaintiff taken as a whole. All relief is tailored to a particular situation. And the tailoring of the relief necessarily entails that remedies are granted as a package, each remedy with its different nature and purposes, sometimes overlapping, but always working together to address the liability that has been established[44].

    [44]See, eg, Attorney General v Blake [2001] 1 AC 268 at 285.

21. This appeal is concerned with the tort of false imprisonment, a form of trespass to the person[45]. It is actionable per se, regardless of whether the victim suffers any harm[46]. It does not require proof of special damage[47]. That is unsurprising. The tort protects and, where necessary, vindicates a person's right to freedom from interference with personal liberty as a fundamental legal right[48]. The law does not allow a defendant to escape liability by resort to counterfactual scenarios. Thus, the executive cannot render lawful what is in fact unlawful detention, by reference to how it could or would have acted if it had acted lawfully, as opposed to how it acted in fact[49]. Indeed, an action for false imprisonment lies even if the victim did not know that they were falsely imprisoned[50]. On the question of liability for the tort of false imprisonment, there is no role for a counterfactual analysis that would seek to replace what did in fact happen with what would otherwise have happened.

    [45]R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 at 274 [65]; see also R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58 at 162.

    [46]Huckle v Money (1763) 2 Wils KB 205 [95 ER 768]; Lumba [2012] 1 AC 245 at 274 [64], citing Murray v Ministry of Defence [1988] 1 WLR 692 at 703; [1988] 2 All ER 521 at 529; CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at 569 [155].

    [47]Murray [1988] 1 WLR 692 at 703; [1988] 2 All ER 521 at 529; Lumba [2012] 1 AC 245 at 274 [64].

    [48]Trobridge v Hardy (1955) 94 CLR 147 at 152; Ruddock v Taylor (2005) 222 CLR 612 at 649 [137]; R v Governor of Brockhill Prison; Ex parte Evans [No 2] [2001] 2 AC 19 at 43; Lumba [2012] 1 AC 245 at 315 [219], 352 [341].

    [49]Lumba [2012] 1 AC 245 at 274 [62].

    [50]Murray [1988] 1 WLR 692 at 703; [1988] 2 All ER 521 at 529; Lumba [2012] 1 AC 245 at 282 [96].

22. Any other approach would ignore the elements of the cause of action and be contrary to principle. As Lord Dyson explained in R (Lumba) v Secretary of State for the Home Department, if a counterfactual were used in determining liability for false imprisonment, it may lead to the outcome reached by Lord Brown in that case: namely, that the claimant was in fact lawfully detained[51]. Lord Dyson said that "the law of false imprisonment does not permit history to be rewritten in this way"[52]. Legal liability flows with no regard to any counterfactual. Those "elementary"[53] principles are concerned with liability.

    [51][2012] 1 AC 245 at 274 [62], 352-353 [342]-[343].

    [52]Lumba [2012] 1 AC 245 at 274 [62].

    [53]Lumba [2012] 1 AC 245 at 274 [65].

23. A right to nominal damages, as one remedy, follows from that finding of liability[54]. That award of nominal damages marks the fact that "there [was] an infraction of a legal right"[55]. There is then a question as to whether any other relief should be awarded to a particular plaintiff, in their own unique situation. This, in turn, requires consideration of the nature and purpose of other forms of relief. Just as questions of liability and relief should not be elided, the varying natures and purposes of different forms of relief should not be elided or confused[56].

    [54]Owners of Steamship "Mediana" v Owners, Master and Crew of Lightship "Comet" (The "Mediana") [1900] AC 113 at 116; Baume v The Commonwealth (1906) 4 CLR 97 at 116; Cunningham v Ryan (1919) 27 CLR 294 at 314.

    [55]The "Mediana" [1900] AC 113 at 116, quoted in Baume (1906) 4 CLR 97 at 116; Cunningham (1919) 27 CLR 294 at 314.

    [56]Lumba [2012] 1 AC 245 at 320 [236].

24. The question in this appeal is whether Mr Lewis can recover more than nominal damages for false imprisonment in circumstances where, if he had not sustained the wrong of unlawful imprisonment, he would have been lawfully imprisoned. Mr Lewis seeks compensatory damages or, alternatively, "vindicatory" damages.

1. These reasons will summarise Mr Lewis' position in the context of the applicable statutory regime governing his detention and then turn to explain why he is not entitled to substantial compensatory damages or "vindicatory" damages.

2. Although it will be necessary to consider a significant number of authorities, the principles to be applied can be stated shortly. The tort of false imprisonment is actionable per se. No counterfactual can or should be used to determine liability. But when assessing compensatory damages, some counterfactual analysis is necessary. It is necessary because the settled principle governing compensatory damages is that they compensate for loss or injury[57]. The measure is to be, as far as possible, that amount of money which will put the injured party in the same position they would have been in had they not sustained the wrong[58]. Put in negative terms, "a plaintiff cannot recover more than he or she has lost"[59]. That reflects the fact that the compensatory principle is one part of the question of relief, and that relief must be appropriate for the situation of the plaintiff. In rare cases, that counterfactual will show that imprisonment is inevitable and there was no compensable loss. In those cases, nominal damages are awarded as vindication of the infringement. This is such a case.

   [57]Haines v Bendall (1991) 172 CLR 60 at 63 and the authorities cited there; Amaca Pty Ltd v Latz (2018) 264 CLR 505 at 520 [41], 532 [84]-[85], 533 [87]-[88].

   [58]Haines (1991) 172 CLR 60 at 63 and the authorities cited there; Amaca (2018) 264 CLR 505 at 520 [41]; Devenish Nutrition Ltd v Sanofi‑Aventis SA [2009] Ch 390 at 447 [43].

   [59]Haines (1991) 172 CLR 60 at 63, citing Parry v Cleaver [1970] AC 1 at 13.

3. 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

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. The Board conducted two inquiries, because it decided that the first lacked a quorum. At its second inquiry, on 8 July 2008, the Board said:

    "The [B]oard found proved the breach of conditions and pursuant to section 68(2)(f) of the [CSA] Act, resolved to CANCEL Steven Lewis['] PERIODIC DETENTION order."

    Mr Lewis was arrested on 5 January 2009 and imprisoned for 82 days.

    Proceedings below

11. In the Supreme Court of the Australian Capital Territory, Refshauge J found Mr Lewis' imprisonment to be unlawful because the Board's decision at the second inquiry was a nullity for lack of procedural fairness. Mr Lewis then sought, among other things, damages for false imprisonment for the 82 days he spent in custody. An initial claim for exemplary damages was abandoned.

12. Refshauge J awarded only nominal damages, reflecting the fact that even if Mr Lewis had not been unlawfully detained, his lawful detention was "inevitable": the CSA Act required cancellation of the periodic detention order. If Mr Lewis' entitlement was not limited to nominal damages, Refshauge J would have assessed damages at $100,000 with no award of aggravated damages.

13. Refshauge J also refused an award of "vindicatory" damages, finding no entitlement to such a remedy under the Human Rights Act 2004 (ACT) or otherwise. Refshauge J then said, "[i]f I am wrong and there is such a remedy, then I would still only award Mr Lewis nominal damages", for the same reasons given under the analysis of ordinary (non-vindicatory) damages.

14. Mr Lewis' appeal to the Court of Appeal of the Supreme Court of the Australian Capital Territory was dismissed. The Court held that "[t]he straightforward application of the sections of the [CSA] Act ... provides a clear pathway to a finding that imprisonment, consequent upon cancellation of the periodic detention order, was inevitable". That finding is not the subject of appeal in this Court and was key to the Court of Appeal's conclusion on damages. Their Honours agreed with Lord Dyson in Lumba and the Full Court of the Federal Court of Australia in Fernando v The Commonwealth[70] that nominal damages are the appropriate remedy where lawful detention was inevitable.

    [70](2014) 231 FCR 251.

15. The Court of Appeal rejected the claim for vindicatory damages. Such damages were said to be available in defamation cases, but were nevertheless compensatory "in that [their] purpose is to vindicate the reputation harmed by the conduct giving rise to the tort". The Court noted that Mr Lewis was unable to point to authority recognising vindicatory damages as a separate head of damages. Even if there were such a head of damages, the Court said, the unlawfulness in this case was "at fairly much the lowest level". The Court continued:

    "Moreover ... the appellant was a person who was not entitled to his personal liberty as a matter of fact and law. If there be a separate head of vindicatory damages, a nominal amount would suffice to vindicate his interest in having questions affecting his liberty determined in accordance with the law."

    Mr Lewis' argument

16. Mr Lewis seeks substantial compensatory damages or, alternatively, vindicatory damages, for his 82 days of unlawful imprisonment when he was not entitled to his personal liberty as a matter of fact and law. Mr Lewis' argument has three strands: first, the tort of unlawful imprisonment is actionable per se and does not require proof of special damage; second, it is neither necessary nor appropriate to undertake a counterfactual analysis to see what would have happened but for the unlawful imprisonment; and, third, even if a counterfactual is appropriate, the correct counterfactual is a scenario in which Mr Lewis was not imprisoned at all (not one in which he was lawfully imprisoned).

    Compensatory damages and the counterfactual

17. This appeal is concerned with compensatory damages. The settled principle is that they compensate for loss or injury, focusing on the interests of the plaintiff[71]. Those interests are addressed by awarding damages as compensation for actual loss – an award guided by the compensatory principle and the principles that have developed for such awards in specific contexts[72]. The "compensatory principle is concerned with the measure of damages required to remedy compensable damage" (emphasis added)[73]. As stated earlier, the measure of compensatory damages is to be, as far as possible, that amount of money which will put the injured party in the same position they would have been in had they not sustained the wrong[74].

    [71]Haines (1991) 172 CLR 60 at 63 and the authorities cited there; Amaca (2018) 264 CLR 505 at 520 [41], 532 [84]-[85].

    [72]Amaca (2018) 264 CLR 505 at 532 [85], 533 [87]-[88].

    [73]Amaca (2018) 264 CLR 505 at 520 [41].

    [74]Haines (1991) 172 CLR 60 at 63 and the authorities cited there; Amaca (2018) 264 CLR 505 at 520 [41].

18. The precise boundaries of the compensatory principle cannot be stated in abstract terms. What it requires will depend upon the facts and nature of each case. But that does not detract from the fact that it is a "settled principle" of damages in tort law[75].

    [75]Haines (1991) 172 CLR 60 at 63.

19. The conclusion that liability for false imprisonment flows with no regard to any counterfactual[76] does not logically lead to the conclusion that counterfactuals are not relevant to identification of the loss that is to be compensated by an award of damages. The problem with a counterfactual analysis is only at the earlier stage of determining whether the tort of false imprisonment was committed. Indeed, to refuse to consider the counterfactual scenario when assessing damages would be to have a court award damages while blind to the realities of the situation.

    [76]See [45]-[46] above.

20. During the course of argument in this appeal, the need for a counterfactual in identifying the loss arising from the false imprisonment was, at times, described in terms of causation. For my part, that terminology is unhelpful. Causation is a legal concept[77] and, as Mason CJ said in March v Stramare (E & M H) Pty Ltd[78], "[i]n law … problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence".

    [77]March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506 at 509. See also The National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 at 591.

    [78](1991) 171 CLR 506 at 509; see also at 522, 525, 530, 533-534. See also Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22.

21. Separate from apportionment or allocation of legal responsibility, it is necessary to identify loss in order to award compensatory damages. It is that inquiry which involves the use of a counterfactual. The counterfactual is the position the plaintiff would have been in had the tort not been committed.

22. If a loss is identified, the law then has to answer a question: "is that loss the loss of 'something for which the claimant should and reasonably can be compensated'"[79]? Should it be recognised by an award of compensatory damages which will put the injured party in the same position they would have been in had they not sustained the wrong, so far as is possible? And as has been stated, that question forms part of a larger question about the nature of the relief, as a whole, that a plaintiff should be granted.

    [79]Amaca (2018) 264 CLR 505 at 532 [84], quoting Pickett v British Rail Engineering Ltd [1980] AC 136 at 149.

23. Thus, a counterfactual is often useful in seeking to identify the loss or injury from a wrong for which a person may then be compensated. A person unlawfully imprisoned may lose wages through an inability to work while detained, or they may simply lose time. Each of these is a compensable loss – the former by an award of special damages and the latter by way of general damages. It is difficult to reach that conclusion without a counterfactual. Why is the money a person would have earned in the time they were unlawfully detained something which is compensable? Precisely because they would have earned that money if they had not been unlawfully imprisoned. On the other hand, if the person would inevitably have been lawfully imprisoned for the relevant period of time, what is their loss or injury?

24. This reasoning does not allow a police officer to avoid liability for false imprisonment by saying that they would have arrested a suspect lawfully, if they had not done so unlawfully. Such a result would be wrong in law[80]. The counterfactual does nothing to avoid liability. As already noted, liability is determined without use of any counterfactual. The fact that the tort is actionable per se means that the imprisoner is liable for his or her actions without special damage being shown. The counterfactual is directed only at determining the loss for which a person is to be compensated. It helps the court to fashion an appropriate remedy. The flaw in Mr Lewis' contention is the failure to distinguish between questions of liability and remedy.

    [80]Christie v Leachinsky [1947] AC 573.

25. Nor does the use of a counterfactual in determining compensation embolden the executive. Any argument to the contrary elides or ignores the purpose and the nature of the relief. If the purpose of relief is to deter such behaviour, then it may include a declaration and an award of exemplary damages. Neither the declaration nor the award of exemplary damages depends on a counterfactual analysis.

26. Further, there are few cases where courts have made a finding of unlawful imprisonment that had no compensable effects. The facts of this case are exceptional, even more so than those in Lumba and Fernando. In this case a statute required the claimant to be detained. There was no doubt about what would have happened. Evidence given by a police officer that they would have arrested someone lawfully is not in the same category; that is different from a statutory process which requires a person to be detained.

    Can compensation be assessed without a counterfactual?

27. The remaining question, then, is what to make of those cases in which Mr Lewis says tortious conduct leads to an award of damages with no counterfactual analysis. Mr Lewis points primarily to Ashby v White[81] and Plenty v Dillon[82] and cases dealing with torts other than false imprisonment. Mr Lewis' reliance on these cases is misplaced.

    [81](1703) 2 Ld Raym 938 [92 ER 126].

    [82](1991) 171 CLR 635.

28. In Ashby, a person was wrongly prevented from voting. His preferred candidate was elected anyway, but damages were awarded. Mr Lewis contended that the voter suffered no consequential loss because his preferred candidate would be elected either way. But the voter in Ashby did lose something – the ability to vote. The counterfactual shows that, absent the wrongful deprivation of the right to vote, the voter would have voted. Whether his preferred candidate was elected is immaterial. Mr Lewis' case is different: he would have lost his liberty either way because his lawful detention was inevitable.

29. In Plenty, police officers trespassed on land in order to serve a summons. Mason CJ, Brennan and Toohey JJ did not discuss damages because the point was not argued[83]. Gaudron and McHugh JJ said that "once a plaintiff obtains a verdict in an action of trespass, he or she is entitled to an award of damages"[84]. Their Honours continued[85]:

    "True it is that the entry itself caused no damage to the appellant's land. But the purpose of an action for trespass to land is not merely to compensate the plaintiff for damage to the land. That action also serves the purpose of vindicating the plaintiff's right to the exclusive use and occupation of his or her land."

    And later, their Honours said[86]:

    "If the courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person's rights, particularly when the invader is a government official. The appellant is entitled to have his right of property vindicated by a substantial award of damages."

    [83](1991) 171 CLR 635 at 645.

    [84](1991) 171 CLR 635 at 654.

    [85](1991) 171 CLR 635 at 654-655.

    [86](1991) 171 CLR 635 at 655.

30. It is true that in Plenty there was no loss in terms of damage to the land, but there was a loss of the right not to be trespassed upon. The lawful presence of police officers on the land was in no way inevitable, unlike Mr Lewis' imprisonment. A counterfactual in Plenty would show that the police would not have been on the land.

31. Moreover, even if Ashby and Plenty were authority for the proposition that a substantial award of damages could be made without showing loss (and they are not), that would not mean that such an award is necessarily appropriate in every case. The facts of this case are exceptional. There is no reason for the Court to shut its eyes to those facts.

32. Finally, by reference to cases involving other trespassory torts[87], loss of use of goods[88], conversion[89] and, in England, the tort of misuse of private information[90], Mr Lewis submitted that "[t]hese matters demonstrate the correctness of Lord Hoffmann's observation that there is 'no uniform causal requirement for liability in tort. Instead, there are varying causal requirements, depending upon the basis and purpose of liability ... [C]ausal requirements follow from the nature of the tort'"[91]. Mr Lewis submitted that the nature of the tort of false imprisonment denies recourse to a counterfactual analysis, such that Mr Lewis could recover substantial damages even if his lawful detention was inevitable. This submission is rejected.

    [87]Swordheath Properties Ltd v Tabet [1979] 1 WLR 285 at 288; [1979] 1 All ER 240 at 242; Stoke-on-Trent City Council v W & J Wass Ltd [1988] 1 WLR 1406 at 1416‑1417; [1988] 3 All ER 394 at 402; Inverugie Investments Ltd v Hackett [1995] 1 WLR 713 at 717-718; [1995] 3 All ER 841 at 845-846; Blake [2001] 1 AC 268 at 278; Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420.

    [88]Owners of No 7 Steam Sand Pump Dredger v Owners of SS "Greta Holme" (The "Greta Holme") [1897] AC 596; The "Mediana" [1900] AC 113; Mersey Docks and Harbour Board v Owners of the SS Marpessa [1907] AC 241; Admiralty Commissioners v SS Susquehanna [1926] AC 655; The Hebridean Coast [1961] AC 545; Rider v Pix (2019) 2 QR 205.

    [89]Kuwait Airways Corpn v Iraqi Airways Co [Nos 4 and 5] [2002] 2 AC 883 at 1093‑1094 [82], 1106 [129].

    [90]Gulati v MGN Ltd [2017] QB 149 at 168-169 [45]-[48].

    [91]Kuwait Airways [2002] 2 AC 883 at 1106 [128]-[129].

1. Three of the cases cited by Mr Lewis[92] concerned the question of causation in determining liability. But once liability is established, the identification of loss and the relief to be granted (including damages for that loss) are separate questions. In this case, the respondent accepts that Mr Lewis was falsely imprisoned. Questions of liability are therefore irrelevant. The dispute in this case is about the separate question of relief.

   [92]Kuwait Airways [2002] 2 AC 883 at 1106 [128]-[129]; Chappel v Hart (1998) 195 CLR 232 at 238 [7], 255-256 [62]-[64], 285 [122]; Travel Compensation Fund v Tambree (2005) 224 CLR 627 at 642-643 [45].

2. Moreover, none of the cases cited by Mr Lewis lead to a different conclusion on the question of relief. In cases involving trespass to land or goods, the plaintiff is entitled to what have been described as damages for use regardless of whether the plaintiff would, but for the tort, have used the land or goods[93]. The approach to the question of financial compensation for interference with rights of property was explained by Lord Lloyd (delivering the judgment of their Lordships) in Inverugie Investments Ltd v Hackett[94] in these terms:

   "[A] person who lets out goods on hire, or the landlord of residential property, can recover damages from a trespasser who has wrongfully used his property whether or not he can show that he would have let the property to anybody else, and whether or not he would have used the property himself ...

   It is sometimes said that these cases are an exception to the rule that damages in tort are compensatory. But this is not necessarily so. It depends how widely one defines the 'loss' which the plaintiff has suffered. As the Earl of Halsbury LC pointed out in Mediana (Owners of Steamship) v Comet (Owners of Lightship) [1900] AC 113, 117, it is no answer for a wrongdoer who has deprived the plaintiff of his chair to point out that he does not usually sit in it or that he has plenty of other chairs in the room.

   In Stoke-on-Trent City Council v W & J Wass Ltd [1988] 1 WLR 1406 Nicholls LJ called the underlying principle in these cases the 'user principle.' The plaintiff may not have suffered any actual loss by being deprived of the use of his property. But under the user principle he is entitled to recover a reasonable rent for the wrongful use of his property by the trespasser. Similarly, the trespasser may not have derived any actual benefit from the use of the property. But under the user principle he is obliged to pay a reasonable rent for the use which he has enjoyed. The principle need not be characterised as exclusively compensatory, or exclusively restitutionary; it combines elements of both." (emphasis in original)

   [93]See fnn 87, 88 above.

   [94][1995] 1 WLR 713 at 717-718; [1995] 3 All ER 841 at 845. See also Bunnings (2011) 82 NSWLR 420 at 465 [168]-[169].

3. It is no answer for a wrongdoer who has deprived the plaintiff of their chair to point out that they do not usually sit in it or that they have plenty of other chairs in the room[95]. The plaintiff was deprived of their chair. That is the loss or damage. The next question is how to value that loss or damage: "the damages recoverable will be, in short, the price a reasonable person would pay for the right of user"[96]. The interference with the plaintiff's proprietary right is valued as if the plaintiff waived the tort and charged for use of their property[97]. The object of the award is not merely to compensate the plaintiff but to deny the defendant the value of the property which the defendant had improperly used or retained.

   [95]The "Mediana" [1900] AC 113 at 117.

   [96]Blake [2001] 1 AC 268 at 278.

   [97]Swordheath [1979] 1 WLR 285 at 288; [1979] 1 All ER 240 at 242; Stoke-on-Trent City Council [1988] 1 WLR 1406 at 1416; [1988] 3 All ER 394 at 402; Inverugie [1995] 1 WLR 713 at 717-718; [1995] 3 All ER 841 at 845; Blake [2001] 1 AC 268 at 278.

4. These authorities do not address the tort of false imprisonment. They concern relief of a different kind directed to different objectives[98]. Nor do these authorities address a circumstance of inevitability such that, if not for the wrong, a plaintiff would have been placed in the same position lawfully.

   [98]Blake [2001] 1 AC 268 at 279; The "Mediana" [1900] AC 113 at 117-118; Kuwait Airways [2002] 2 AC 883 at 1094 [87]; see also Ministry of Defence v Ashman (1993) 66 P & CR 195 at 199.

5. Further, cases dealing with equitable compensation by way of an account of profits in the context of an infringement of a trade mark[99] do not alter that conclusion. As Windeyer J said in Colbeam Palmer Ltd v Stock Affiliates Pty Ltd[100], the available relief for infringement of a trade mark, reflecting the old law, was an account of profits or, alternatively, damages. Equity granted relief in the form of an account of profits – not necessarily coextensive with the acts of infringement – limited to the profits made when the defendant knew of the plaintiff's rights[101]. Why? Because the profits were made dishonestly and it would be unconscionable for the wrongdoer to retain them[102]. The relief was directed to a different purpose from damages. An inquiry as to damages concerns different objectives and considerations.

   [99]ColbeamPalmer Ltd v Stock Affiliates Pty Ltd (1968) 122 CLR 25 at 32-33; DartIndustries Inc v Decor Corporation Pty Ltd (1993) 179 CLR 101 at 123-125.

   [100](1968) 122 CLR 25 at 32.

   [101]Colbeam (1968) 122 CLR 25 at 34-35.

   [102]Colbeam (1968) 122 CLR 25 at 34.

6. Finally, Mr Lewis' reliance on Gulati v MGN Ltd[103] is misplaced. In that case, it was held that on a claim for the tort of misuse of private information in England, damages could be awarded to compensate claimants for the loss or diminution of their right to control the use of that formerly private information, as well as for (and irrespective of) any distress which the claimants might justifiably have felt as a result of the information having been exploited[104]. The distinction between loss of privacy and false imprisonment was explained by Arden LJ in these terms[105]:

   "[A] person who was falsely imprisoned without knowing it, and released before he found out, suffered no harm. The factual difference between that situation and these appeals is that in this case the judge accepted that the claimants had suffered damage in that their private information had been misappropriated and had genuinely suffered considerable distress when they found out about the hacking of their phones and other activities of [the respondent]. More importantly, while damages are not awarded in a case of unlawful detention where, had the correct procedure been adopted, the claimant would have been imprisoned or detained anyway ..., the courts have awarded damages for the wrongful deprivation of liberty even though no one appreciated at the time that it was wrongful." (citations omitted)

   It is clear that Arden LJ drew a distinction between cases of false imprisonment in which there is no loss, and those in which there is loss. That distinction is not helpful to Mr Lewis on the facts of this case.

   [103][2017] QB 149.

   [104]Gulati [2017] QB 149 at 169 [48].

   [105]Gulati [2017] QB 149 at 168-169 [47].

   The correct counterfactual

7. Mr Lewis' alternative argument is that if a counterfactual is to be used, the proper counterfactual scenario is not one in which he is lawfully imprisoned, but rather one in which he is not imprisoned at all. Mr Lewis submitted that using a counterfactual in which he is lawfully imprisoned treats the unlawfulness of the imprisonment as the wrong and that, instead, the wrong is "interference with liberty in breach of the right not to be confined". The question of illegality is said by Mr Lewis to go only to the absence of a defence to the tort.

8. This argument was accepted in Roberts v Chief Constable of the Cheshire Constabulary[106]. There, Mr Roberts sued for damages for false imprisonment for his detention between 5.25 am (when his detention should have been reviewed under a statute) and 7.45 am (when that review was finally undertaken and continued detention approved). Clarke LJ said[107]:

   "As a matter of general principle such a plaintiff is entitled to be put into the position in which he would have been if the tort had not been committed. It is therefore important to analyse what the tort is. The plaintiff's claim was not for damages for breach of duty to carry out a review at 5.25 am but for false imprisonment.

   ... [T]he reason why the continued detention was unlawful was that no review was carried out. The wrong was not, however, the failure to carry out the review but the continued detention. If the wrong had not been committed the plaintiff would not have been detained between 5.25 am and 7.45 am."

   It is difficult to accept this analysis. The conclusion that Mr Roberts would not otherwise have been imprisoned runs directly counter to Clarke LJ's earlier finding that, had the review been undertaken at the correct time, Mr Roberts would have been detained[108].

   [106][1999] 1 WLR 662; [1999] 2 All ER 326.

   [107]Roberts [1999] 1 WLR 662 at 668; [1999] 2 All ER 326 at 332.

   [108]Roberts [1999] 1 WLR 662 at 666; [1999] 2 All ER 326 at 330.

9. In Lumba, Lord Dyson accordingly rejected Clarke LJ's reasoning in Roberts. His Lordship said that it was a "fallacy" not to draw a distinction between those who would otherwise have been imprisoned and those who would not[109]. In my view, Lord Dyson's reasoning is to be preferred.

   [109]Lumba [2012] 1 AC 245 at 281 [93].

10. Mr Lewis' case is illustrative of the fallacy of not drawing the distinction. First, it is contrary to common sense to say the correct counterfactual is that Mr Lewis would not have been imprisoned, when the CSA Act required him to be imprisoned. As the Commonwealth (intervening) submitted, it would be a strange result for the law to select a counterfactual scenario which the law itself could never countenance. Second, such a decision would directly contradict the finding in the courts below that Mr Lewis' detention was inevitable. That finding is not challenged in this Court. Third, and no less importantly, it is not correct to say that the wrong at issue here is "interference with liberty in breach of the right not to be confined". There is no right not to be confined. There is a right not to be confined wrongfully. The tort is not made out if the detention is not wrongful.

11. If Mr Lewis had not been unlawfully imprisoned, he would have been in lawful detention. He does not claim any special damages or exemplary damages. The rejection of his claim for aggravated damages is not challenged in this Court. He sought an award of compensatory damages for non-financial loss, or what is recoverable as a component of an award of general damages[110]. And he could not identify any loss.

    [110]CSR Ltd v Eddy (2005) 226 CLR 1 at 20 [39].

    Parker v Chief Constable of Essex Police

12. The decision in Parker v Chief Constable of Essex Police[111] must be addressed separately. Mr Parker was arrested on suspicion of having committed a crime[112]. The officer who arrested Mr Parker did not personally have reasonable grounds for a suspicion justifying arrest, as required by statute[113]. The officer who was intending to make the arrest (and who did have the necessary state of mind) had been delayed in traffic. Mr Parker had therefore been unlawfully arrested[114]. The trial judge found that the relevant counterfactual was that, if the arresting officer had not made the arrest, another of the officers present would have made the arrest. However, that arrest would also have been unlawful. As such, Mr Parker was not limited to nominal damages only[115].

    [111][2019] 1 WLR 2238; [2019] 3 All ER 399.

    [112][2019] 1 WLR 2238 at 2241 [3]; [2019] 3 All ER 399 at 401.

    [113][2019] 1 WLR 2238 at 2241 [6]; [2019] 3 All ER 399 at 402.

    [114][2019] 1 WLR 2238 at 2250 [56]; [2019] 3 All ER 399 at 410.

    [115][2019] 1 WLR 2238 at 2256 [79]; [2019] 3 All ER 399 at 416.

13. On appeal, the Court of Appeal said that the correct counterfactual was identified by asking not "what would, in fact, have happened had [the arresting officer] not arrested Mr Parker" but rather "what would have happened had it been appreciated what the law required"[116]. The Court of Appeal held that only nominal damages should be awarded, reflecting the "distinction to be drawn between those who would have suffered the detriment in any event (in this case, false imprisonment) and those who would not"[117].

    [116][2019] 1 WLR 2238 at 2262 [104]; [2019] 3 All ER 399 at 421.

    [117][2019] 1 WLR 2238 at 2262-2263 [108]; [2019] 3 All ER 399 at 422.

14. With respect, the reasoning of the trial judge in Parker is to be preferred. The correct counterfactual in the assessment of loss and damage is what would have happened if the tort had not been committed. The way in which the Court of Appeal framed the question assumed the conclusion of lawfulness. And the facts in Parker are far removed from those in Mr Lewis' appeal. No statute positively required Mr Parker to be arrested. The power of arrest was discretionary. As such, it is very difficult to say that Mr Parker's lawful arrest was "inevitable". As the trial judge found, if the unlawful arrest had not been made, the most likely outcome was that another officer would instead have arrested Mr Parker unlawfully[118]. That takes cases such as Parker outside the scope of the principles involved in Mr Lewis' appeal, in which detention was inevitable.

    [118][2019] 1 WLR 2238 at 2256 [79]; [2019] 3 All ER 399 at 416.

    No substantial compensatory damages

15. The question then is whether Mr Lewis is entitled to a substantial award of compensatory damages for his wrongful detention, even if his detention was inevitable. Or, put in more direct terms, is he entitled to a substantial award of compensatory damages as a vindication of his basic legal values or rights? The answer is no.

16. Absent loss or injury, there is nothing to compensate. If Mr Lewis had not sustained the wrong of unlawful imprisonment, he would have been lawfully imprisoned. He is entitled to an award of nominal damages, vindicatory in nature[119], to mark that "there [was] an infraction of a legal right"[120]. He is not entitled to substantial compensatory damages because he suffered no loss or injury.

    [119]Ashley v Chief Constable of Sussex Police [2008] AC 962 at 985-986 [60]; New South Wales v Stevens (2012) 82 NSWLR 106 at 112 [26]; Carey v Piphus (1978) 435 US 247 at 266. See [114]-[118] below.

    [120]The "Mediana" [1900] AC 113 at 116, quoted in Baume (1906) 4 CLR 97 at 116.

17. Mr Lewis contends that his entitlement to substantial compensatory damages to vindicate his right is supported by authority. Mr Lewis pointed to the statement of Hayne and Bell JJ in CPCF v Minister for Immigration and Border Protection that "the action for false imprisonment is for vindication of basic legal values"[121] and that of Gaudron and McHugh JJ in Plenty that an action for trespass to land "serves the purpose of vindicating the plaintiff's right to the exclusive use and occupation of his or her land", and that this right was to be "vindicated by a substantial award of damages"[122]. Similarly, Mr Lewis relied on Ashby, in which it was said that "[i]f the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it"[123].

    [121](2015) 255 CLR 514 at 569 [155].

    [122](1991) 171 CLR 635 at 654-655.

    [123](1703) 2 Ld Raym 938 at 953 [92 ER 126 at 136].

18. Two things may be said about these cases. First, the fact that these cases speak of vindication does nothing to detract from the primacy of the compensatory principle in compensatory damages. The compensatory principle cannot be made to found an award where no loss has been shown. Second, an award of substantial compensatory damages is not required in order to vindicate Mr Lewis' rights. That is achieved by the finding of unlawful detention made in this case, akin to a declaration[124], together with an award of nominal damages[125]. That is the appropriate relief to address Mr Lewis' false imprisonment.

    [124]Cane, "Damages in Public Law" (1999) 9 Otago Law Review 489 at 499; Lumba [2012] 1 AC 245 at 283-284 [101], 320 [236].

    [125]Ashley [2008] AC 962 at 985-986 [60]; Stevens (2012) 82 NSWLR 106 at 112 [26].

    Alternative causes

19. Mr Lewis submitted that this case could be considered as one in which the wrong could be produced by "alternative causes". That is, Mr Lewis' deprivation of liberty was caused by the respondent's wrongful conduct, but the same harm would have been produced even absent the wrongful conduct. Adopting Hart and Honoré's analysis[126], Mr Lewis submitted that in this kind of case, "the generally accepted view is that [the] defendant's wrongful ... act has caused the harm ... despite the existence of a set of alternative conditions sufficient to produce the same harm".

    [126]Hart and Honoré, Causation in the Law, 2nd ed (1985) at 249.

20. This argument does not lead to an award of substantial compensatory damages. First, at the level of principle, as Mr Lewis' written submissions later accept (again having quoted Hart and Honoré[127]), "the law does not take a uniform approach to alternative causes" and the approach to be taken reflects judgments "about matters such as the reason for the imposition of liability and considerations of justice".

    [127]Hart and Honoré, Causation in the Law, 2nd ed (1985) at 251.

21. Second, Mr Lewis again conflates matters of liability and relief. The only conclusion which Mr Lewis ultimately draws is that "a defendant cannot escape liability to compensate the plaintiff for unlawful imprisonment which the defendant has actually inflicted by contending that, had they not done so, they would lawfully have imprisoned the plaintiff". No one disputes here that the respondent is liable for false imprisonment. But that finding does not of itself lead to the conclusion that Mr Lewis is entitled to compensatory damages. At most, the "alternative causes" analysis assists a court to determine liability. It does not show entitlement to substantial compensatory damages.

22. Third, there was no alternative cause. Mr Lewis' imprisonment was mandated by the CSA Act, the same Act purportedly relied upon by the respondent to detain him[128]. This was not a case where there was another law or policy justifying detention which was not invoked or relied upon by the respondent. As a result of the tort, the harm suffered by Mr Lewis was his deprivation of liberty. But it cannot be said that the respondent's wrongful act – the lack of procedural fairness at the hearing before the Board – produced or caused that harm. As Hart and Honoré explain[129], it is necessary to distinguish "genuine cases of alternative causation from cases where the wrongful aspect of [the] defendant's act is causally irrelevant". What produced the harm to Mr Lewis was the operation of the CSA Act. The decision to cancel his periodic detention would have been made whether or not Mr Lewis was afforded procedural fairness. Thus, the conduct of the respondent in denying Mr Lewis procedural fairness was not an alternative cause of Mr Lewis' deprivation of liberty.

    [128]See [60] above.

    [129]Hart and Honoré, Causation in the Law, 2nd ed (1985) at 252.

    Conclusion on substantial compensatory damages

23. In this case, lawful imprisonment was inevitable. Only nominal damages should be awarded as a mark of vindication of the infringement of Mr Lewis' right not to be falsely imprisoned.

    Vindicatory damages

24. If substantial compensatory damages are unavailable (as is the position), then Mr Lewis submitted that this Court should recognise that non-compensatory but "vindicatory" damages are available, as a new head of damages[130]. This submission should also be rejected. There is no need, nor is there any basis in principle, for the Court to recognise a separate head of vindicatory damages. Existing remedies are sufficient.

    [130]See, eg, Stevens, Torts and Rights (2007) at 59-91, 137-144; Varuhas, Damages and Human Rights (2016) at 125-129; Varuhas, "Before the High Court – Lewis v Australian Capital Territory: Valuing Freedom" (2020) 42 Sydney Law Review 123 at 136.

1. Nothing in either set of reasons in Plenty v Dillon required that the substantial damages to which Mr Plenty was entitled should be an amount which was fixed for the violation of his rights without reference to any of the consequences of the trespass. To the contrary, the reference by Gaudron and McHugh JJ to the sense of injustice felt by plaintiffs such as Mr Plenty was to the consequences of the tort to Mr Plenty and within the community. Indeed, after the case was remitted to the Supreme Court of South Australia the damages were assessed at $122,000, which was comprised of $100,000 for a depressive illness suffered by Mr Plenty as a consequence of the trespass, together with other consequential awards including aggravated damages, for the distress and humiliation Mr Plenty suffered, and exemplary damages, for the "contumelious disregard" of the right held by Mr Plenty and the "sense of injustice" to which Gaudron and McHugh JJ referred[261].

   [261]Plenty v Dillon (1997) 194 LSJS 106 at 112.

   Ashby v White 

2. Ashby v White[262] was a landmark English case from which emerged the modern tort of misfeasance in public office. A constable of Aylesbury refused to permit the plaintiff to vote in the parliamentary election of 1702 on the grounds that he was not a settled inhabitant of the borough and had not contributed to the church or to the poor. The plaintiff brought an action on the case against the defendants and obtained a verdict in his favour from the jury with damages of £5. The defendants sought to arrest the judgment in the Court of King's Bench. The three judges in the majority held that the plaintiff could not bring the action for reasons including that he was still entitled to have his vote counted by the committee of elections[263]; that the decision as to whether he had a right to vote was to be determined by Parliament[264]; and that he had alleged no damage[265]. Holt CJ dissented on the ground that the plaintiff had a right and a privilege to vote, the denial of which was an injury, and that "an injury imports a damage, when a man is thereby hindred of his right"[266].

   [262](1703) 2 Ld Raym 938 [92 ER 126]; (1703) 1 Bro PC 62 [1 ER 417].

   [263](1703) 2 Ld Raym 938 at 943 [92 ER 126 at 130].

   [264](1703) 2 Ld Raym 938 at 942, 947 [92 ER 126 at 129, 132].

   [265](1703) 2 Ld Raym 938 at 943 [92 ER 126 at 129].

   [266](1703) 2 Ld Raym 938 at 955 [92 ER 126 at 137]. See also The Judgements Delivered by the Lord Chief Justice Holt in the Case of Ashby v White and Others, and in the Case of John Paty and Others (1837) at 14.

3. Mr Lewis submitted that the dissenting reasoning of Holt CJ had been upheld by the House of Lords and thus established that substantial damages were available for the mere infringement of a right despite the absence of loss. This submission is incorrect for several reasons. First, although the result in the Court of King's Bench was reversed by the House of Lords, the House of Lords was not acting as a judicial body and did not adopt the reported reasoning of Holt CJ. In particular, the Lords Committees' report to the House of Lords did not describe the basis of the action as merely the right to vote. The report said that "it is the Fraud and the Malice that entitles the Party to the Action" and it described the plaintiff's vote as "the Thing he has lost"[267]. It was also observed in the Lords Committees' report that there are many rights for which there is no remedy at common law although remedies are provided in other courts[268]. In any event, in reaching its conclusion the House of Lords, not sitting as a judicial committee[269], also heard opinions from nine judges of the Court of King's Bench but "little weight was given to reasoning or eloquence. It was ... a mere party question."[270] The result of the vote in the House of Lords was also the subject of a resolution by the House of Commons in 1704 that it is the sole right of the House of Commons to determine all matters relating to the election of its members[271].  

   [267]Timberland, The History and Proceedings of the House of Lords (1742), vol 2 at 85, 91.

   [268]Timberland, The History and Proceedings of the House of Lords (1742), vol 2 at 80.

   [269]See Appellate Jurisdiction Act 1876 (39 & 40 Vict c 59).

   [270]Campbell, The Lives of the Chief Justices of England, 3rd ed (1874), vol 2 at 431. See also Jaffe, "Suits against Governments and Officers: Sovereign Immunity" (1963) 77 Harvard Law Review 1 at 14.

   [271]Ashby v White (1703) 1 Bro PC 62 at 64, note [1 ER 417 at 418]. See also Parliamentary Elections Act 1770 (10 Geo III c 16) ("Lord Grenville's Act"). 

4. Secondly, as Wright J said in his advice to the House of Lords in Allen v Flood[272], the decision of Holt CJ, "for which the case has passed into the common stock of legal knowledge", was that for every legal right there was a legal remedy or action, ubi jus, ibi remedium. But the maxim is little more than a tautology if it means only that an action (a "legal remedy to assert, maintain, and vindicate [the right]"[273]) can be brought whenever the law recognises a legal right (there as "a part of his freehold"[274]) to support an action. On the other hand, if remedy and right are given broader meanings then the proposition for which Mr Lewis relied upon the decision is wrong. Deprivation of a person's right to vote does not, by itself, give rise to a remedy. In 1819, the Lord Chief Justice responded to a submission that Holt CJ had held that the mere refusal of a person's right to vote would give the person the right to bring an action against the returning officer by saying that "if [Holt CJ] did so express himself, I am bound to deliver my opinion that he was mistaken"[275]. It may be, however, that contrary to Lord Raymond's report of the case, Holt CJ had indeed required that the right be wilfully infringed before being actionable[276]. In any event, the action that developed from Ashby v White, an action for misfeasance in public office, now requires proof of fault and damage[277]. 

   [272][1898] AC 1 at 65.

   [273]The Judgements Delivered by the Lord Chief Justice Holt in the Case of Ashby v White and Others, and in the Case of John Paty and Others (1837) at 9.

   [274]The Judgements Delivered by the Lord Chief Justice Holt in the Case of Ashby v White and Others, and in the Case of John Paty and Others (1837) at 4.

   [275]Cullen v Morris (1819) 2 Stark NP 577 at 588 [171 ER 741 at 745]. See also Williams v Lewis (1797) Peake Add Cas 157 [170 ER 229]; Harman v Tappenden (1801) 1 East 555 [102 ER 214] and the cases reported in it at 1 East 555 at 563, note (a)2 [102 ER 214 at 217]; Three Rivers District Council v Governor and Company of the Bank of England [No 3] [2003] 2 AC 1 at 34-36.

   [276]Allen v Flood [1898] AC 1 at 65; Three Rivers District Council v Governor and Company of the Bank of England [No 3] [2003] 2 AC 1 at 34-38. This is supported by an original manuscript of most of his decision that was published in 1837. See The Judgements Delivered by the Lord Chief Justice Holt in the Case of Ashby v White and Others, and in the Case of John Paty and Others (1837) at 23 ("the mayor or bailiffs did well know"), 30 ("defrauding and hindering").

   [277]Northern Territory v Mengel (1995) 185 CLR 307 at 347; Three Rivers District Council v Governor and Company of the Bank of England [No 3] [2003] 2 AC 1.

5. Thirdly, any suggestion that there must be a remedy for the infringement of a right still does not require the remedy to be an award of substantial damages. Hence, in Neville v London "Express" Newspaper Ltd[278], Viscount Haldane, in the minority in concluding that the tort of maintenance could be actionable without proof of loss, referred to the statement by Holt CJ and added that the "damage" in these cases "may be substantial, but may also amount to what is merely nominal".

   [278][1919] AC 368 at 392.

   The "Mediana"

6. The decision in The "Mediana"[279] also does not support Mr Lewis' submission. In that case, the defendants' ship, the Mediana, had negligently collided with, and sank, one of the plaintiffs' lightships, the Comet. The damages awarded to the plaintiffs, a not-for-profit Harbour Board, included general damages for a period of 74 days during which the Harbour Board were unable to use the Comet to perform their statutory duty of lighting the approaches to the river Mersey. Their Lordships held that the case fell within a principle that the House of Lords had enunciated in a case several years earlier[280]. In that earlier case, which had concerned compensation for the consequences of the wrongdoing, the Lord Chancellor had said in the leading speech[281]:

   "This public body has to pay money like other people for the conduct of its operations, and if it is deprived of the use of part of its machinery, which deprivation delays or impairs the progress of their works, I know no reason why they are not entitled to the ordinary rights, which other people possess, of obtaining damages for the loss occasioned by the negligence of the wrongdoer."

   The minimum value to a plaintiff of the consequential inconvenience arising from its lost ability to conduct such not-for-profit operations has been roughly assessed by methods including the interest on the capital value of the ship or the depreciation cost of maintaining and operating the ship[282]. The facts of The "Mediana" were different in one respect: the Harbour Board had maintained a spare lightship, the Orion, for the very purpose of use in the event that one of their lightships was not able to be used. The Harbour Board's ability to conduct their primary operations was not compromised. The Lord Chancellor recognised that an award of general damages might be a "trifling amount" where there has really been no damage[283], but the House of Lords upheld the award of substantial damages despite the use by the Harbour Board of the spare lightship.

   [279][1900] AC 113.

   [280]The "Mediana" [1900] AC 113 at 115, 120, 121.

   [281]Owners of No 7 Steam Sand Pump Dredger v Owners of SS "Greta Holme" (The "Greta Holme") [1897] AC 596 at 602.

   [282]Mersey Docks and Harbour Board v Owners of the SS Marpessa [1907] AC 241; Admiralty Commissioners v SS Chekiang [1926] AC 637; The Hebridean Coast [1961] AC 545. See also Rider v Pix (2019) 2 QR 205 at 217-218 [36]-[39].

   [283][1900] AC 113 at 118.

7. One reason for the substantial award of damages in The "Mediana", despite the absence of any apparent actual loss to the Harbour Board in their usual operations, may have been that the use of the spare lightship was disregarded on the basis that the Harbour Board had effectively self-insured by maintaining that spare and the benefits of insurance are generally disregarded in calculating damages. As Lord Brampton observed, the calculation of damages should not be affected by the prudence of the Harbour Board in building and maintaining this spare at great expense[284]. In the Court of Appeal, with which the Lord Chancellor agreed, A L Smith LJ had remarked that a tortfeasor cannot say that no loss is suffered because the victim "stood your own insurers with regard to the [spare] lightship, and although this cost you money, you must use that ship for my benefit in mitigating the damages which I should otherwise have to pay for my misfeasance"[285]. Another possible explanation, adopted in one later decision, is that the measure of loss in The "Mediana", the calculation of which was not in issue in that case, was based upon the value and convenience to the Harbour Board of keeping a spare lightship[286]. In effect, the defendants' negligence deprived the Harbour Board of that convenient part of their operations concerning maintenance of security. Whatever the explanation, the important point is that the measure of damages in that case was concerned with true loss, in the sense of the adverse consequences to the plaintiffs caused by the wrongdoer defendants. The need to focus upon loss in such cases is clear from a more recent decision in which the House of Lords unanimously refused a plaintiff's claim for the hire cost of a car following an automobile accident caused by the defendant's negligence. The plaintiff had not suffered any loss. No cost of hiring the substitute car was incurred because the agreement with the hire company was unenforceable[287].

   [284][1900] AC 113 at 123.

   [285]The Mediana [1899] P 127 at 137.

   [286]Admiralty Commissioners v SS Susquehanna [1926] AC 655 at 662, 665-666, 669. See The "Mediana" [1900] AC 113 at 122 (Lord Shand).

   [287]Dimond v Lovell [2002] 1 AC 384.

   Rees v Darlington Memorial Hospital NHS Trust

8. Finally, the decision in Rees v Darlington Memorial Hospital NHS Trust[288] also provides little or no support for Mr Lewis' submission. In that case, a majority of the House of Lords held that although English law did not permit recovery of additional costs for a disabled parent in raising a child who was born after the defendant's act of negligence in a sterilisation operation, a "conventional award" of damages should be made in all cases of children born as a result of such negligence. That conventional award was £15,000. Whether or not such an award would be made in Australian law, where the common law in this area differs from England[289], the award of £15,000 was not made for the mere infringement of the claimant's rights. Rather, the difference between the majority and the minority of the House of Lords in that case turned upon whether a compensable loss was thought to have been suffered.

   [288][2004] 1 AC 309.

   [289]Cattanach v Melchior (2003) 215 CLR 1.

9. In the majority, although Lord Bingham said that the award was not "compensatory", it appears that he meant by this only that the award for the loss would not depend upon the particular circumstances of each individual claimant. The judges in the majority still saw the award of damages as responding to the consequences of the wrongdoing, which was the mother's lost "opportunity to live her life in the way that she wished and planned"[290]. There was no dispute that this adverse consequence had been caused by the defendant's negligence in performing the sterilisation. The question was whether this adverse consequence, which was actually experienced, counted as a loss and, if so, how it should be quantified. As the English Court of Appeal subsequently held, the damages in Rees were not an award based merely upon the infringement of the claimant's rights, or breach of the claimant's autonomy, irrespective of consequences[291].

   [290]Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 at 317 [8], referring also to McFarlane v Tayside Health Board [2000] 2 AC 59 at 114: "[t]hey have lost the freedom to limit the size of their family". See also [2004] 1 AC 309 at 319 [17] (Lord Nicholls), 350 [125] (Lord Millett), 356 [148] (Lord Scott).

   [291]Shaw v Kovac [2017] 1 WLR 4773 at 4790-4792 [78]-[84]; [2018] 2 All ER 71 at 87-89.

   Vindicatory damages

10. Mr Lewis' submission that he is entitled to substantial damages independently of any consequences to him is not made any more compelling by the addition of the label "vindicatory damages". This submission, which amounted to the same point as his submission that substantial damages were available to vindicate a right, but with a different title, was that substantial damages were available not to compensate but to "vindicate" the plaintiff's right to liberty or "to recognise the value of the right of every human being not to be imprisoned".

11. The association between damages and vindication probably originated in defamation cases. It was once thought to be legitimate for a jury to be directed that since they could not give public reasons to address the consequential damage to the plaintiff's reputation the members of the jury could instead "give a very big sum, which will indicate what [they] think"[292]. In a subsequent false imprisonment case, where the damages were sought for the consequences to the plaintiff's reputation of the false imprisonment, Slade J described such an award as being made to "vindicate" a plaintiff by making it "clear that there was no stain of any kind upon his character"[293]. The suggested reduction of damages where a judge sits without a jury was later rejected in England[294], but the description of compensatory damages as performing a function of "vindication" remains. However, the function that it describes is part of the goal of redressing loss[295].

    [292]Rook v Fairrie [1941] 1 KB 507 at 515.

    [293]Hook v Cunard Steamship Co Ltd [1953] 1 WLR 682 at 686; [1953] 1 All ER 1021 at 1024.

    [294]Associated Newspapers Ltd v Dingle [1964] AC 371 at 400-401, 407, 408-409, 419. But compare Purnell v BusinessF1 Magazine Ltd [2008] 1 WLR 1 at 13 [27] and Cairns v Modi [2013] 1 WLR 1015 at 1025 [30]-[32].

    [295]See also Myer Stores Ltd v Soo [1991] 2 VR 597 at 602, Murphy J describing these compensatory damages as aggravated.

12. Damages awards to vindicate a plaintiff's reputation, whether the impaired reputation is consequent upon defamation or false imprisonment, are concerned with loss. They focus upon the consequences of publication upon the plaintiff's reputation including any diminution in the regard with which the plaintiff is held by others and any isolation of the plaintiff[296]. The award "looks to the attitude of others to the [plaintiff]" and "must not exceed the amount appropriate to compensate the plaintiff for any relevant harm he or she has suffered"[297]. Hence, putting exemplary damages to one side, if the plaintiff's general reputation was so poor prior to the publication that the statement or implication could do no further injury then this element of "vindication" would require only nominal damages[298]. The same is true of infringement of a right by an act of assault or false imprisonment where no loss is suffered: "the law vindicates that right by awarding nominal damages"[299]. And if nominal damages are insufficient to serve the purpose of "restraining the arbitrary and outrageous use of executive power and in vindicating the strength of the law" then exemplary damages can be awarded[300]. There is no place for a separate species of vindicatory damages. 

    [296]Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 71.

    [297]Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 61, 66. See also Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 347-348 [60], 349-350 [67]-[68].

    [298]Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 73 [33], 89 [89].

    [299]Ashley v Chief Constable of Sussex Police [2008] AC 962 at 985-986 [60]. See also New South Wales v Stevens (2012) 82 NSWLR 106 at 112 [26].

    [300]New South Wales v Ibbett (2006) 229 CLR 638 at 649 [40], referring to Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122 at 147 [75].

13. Mr Lewis also relied upon a line of decisions, primarily from the Privy Council, where substantial damages were said to have been awarded solely to "vindicate" constitutional rights[301]. Although the award made in each of these cases was expressed to be made as damages "to uphold, or vindicate, the constitutional right which has been contravened"[302], the awards were not made without regard to the consequences of the breach. Indeed, the justification given for the award of these damages beyond compensation for loss was "to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches"[303]. As Lord Hope observed, giving the reasons of the Privy Council in one of these cases, a declaration on its own might be sufficient to vindicate the right[304] but, where it was not, the award of substantial damages was likely "in financial terms to cover much the same ground as an award by way of punishment" even if that was not its object[305]. These "vindicatory damages" are thus "closely linked ... to punitive and exemplary damages"[306]. In any event, however, neither English law nor Australian law has generally accepted such a vindication principle as establishing a new species of vindicatory damages in the law of torts. And, in the United States, the Supreme Court has held that where there is no proof of actual damage the abstract value of a constitutional right is vindicated by an award of nominal damages only, in accordance with ordinary principles of the law of torts[307].

    [301]Attorney General of Trinidad and Tobago v Ramanoop [2006] 1 AC 328; Merson v Cartwright [2006] 3 LRC 264; Inniss v Attorney General [2009] 2 LRC 546; Subiah v Attorney General [2009] 4 LRC 253; Takitota v Attorney General [2009] 4 LRC 807.

    [302]Attorney General of Trinidad and Tobago v Ramanoop [2006] 1 AC 328 at 335 [18]. See also Merson v Cartwright [2006] 3 LRC 264 at 273 [18]; Inniss v Attorney General [2009] 2 LRC 546 at 555 [22]; Subiah v Attorney General [2009] 4 LRC 253 at 258 [11]; Takitota v Attorney General [2009] 4 LRC 807 at 814-816 [14]‑[16].

    [303]Attorney General of Trinidad and Tobago v Ramanoop [2006] 1 AC 328 at 336 [19].

    [304]Inniss v Attorney General [2009] 2 LRC 546 at 555 [21].

    [305]Inniss v Attorney General [2009] 2 LRC 546 at 555-556 [25].

    [306]R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 at 283 [100].

    [307]Carey v Piphus (1978) 435 US 247; Memphis Community School District v Stachura (1986) 477 US 299. See also New York State Rifle & Pistol Association Inc v City of New York, New York (2020) 140 S Ct 1525 at 1535.

1. An attempt to develop such a new species of damages in English domestic law was made by the appellants in the Supreme Court of the United Kingdom in R (Lumba) v Secretary of State for the Home Department[308]. In that case the appellants were two foreign nationals who were detained pending deportation for lengthy periods of time by the blanket application of an unpublished policy. A majority of the House of Lords held that their detention was unlawful and was therefore a false imprisonment. However, six of the nine judges held that only nominal damages should be awarded for the false imprisonment because even without the unlawful application of the unpublished policies it was inevitable that the appellants would have been detained. In a judgment with which the other judges in the majority on this issue agreed[309], Lord Dyson said:

   "The implications of awarding vindicatory damages in the present case would be far reaching. Undesirable uncertainty would result. If they were awarded here, then they could in principle be awarded in any case involving a battery or false imprisonment by an arm of the state. Indeed, why limit it to such torts? And why limit it to torts committed by the state? I see no justification for letting such an unruly horse loose on our law. In my view, the purpose of vindicating a claimant's common law rights is sufficiently met by (i) an award of compensatory damages, including (in the case of strict liability torts) nominal damages where no substantial loss is proved; (ii) where appropriate, a declaration in suitable terms; and (iii) again, where appropriate, an award of exemplary damages."

   [308][2012] 1 AC 245.

   [309]R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 at 283-284 [101]. See at 321 [237] (Lord Collins), 321 [238] (Lord Kerr), 351 [335] (Lord Phillips), 360 [361]‑[362] (Lord Brown and Lord Rodger).

2. Even the approach of the minority on this issue in Lumba (Lords Hope and Walker and Lady Hale) does not support Mr Lewis. They did not justify a substantial award of vindicatory damages on the basis merely of an infringement of the appellants' rights, irrespective of consequences. Rather, their justifications depended upon considerations that were very closely associated with exemplary damages. Lords Hope and Walker both described the conduct of the officials as "a serious abuse of power" and "deplorable", and held that this required damages that were more than nominal[310]. Similarly, Lady Hale would have awarded substantial damages of £500 to recognise the breach by the State and "to encourage all concerned to avoid anything like it happening again"[311].

   [310]R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 at 303 [176], 308 [194]-[195].

   [311]R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 at 315 [217].

3. The approach of the majority on this issue in Lumba was followed by the Full Court of the Federal Court in Fernando v The Commonwealth[312]. It was also addressed by four members of this Court in CPCF v Minister for Immigration and Border Protection[313]. In that case, the majority decision in Lumba was referred to with approval by Kiefel J[314] and Keane J[315]. In their joint dissenting reasons, Hayne and Bell JJ, who would have held that detention was unlawful, said that nominal damages were "open" in a case where a form of lawful detention was available and would have been effected but, citing Lumba, said that the absence of any "substantial loss" did not require the conclusion that only nominal damages may be awarded[316]. It is unnecessary to assess the competing views expressed by the parties concerning these obiter dicta passages in this joint judgment, nor to assess the competing views concerning whether the correctness of Lumba had been in dispute and the consequential weight of the reasoning on this point generally in CPCF[317]. For the reasons above, the decision of the majority on this issue in Lumba was correct.

   [312](2014) 231 FCR 251.

   [313](2015) 255 CLR 514.

   [314]CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at 611 [324]-[325].

   [315]CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at 655-656 [511]-[512].

   [316]CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at 569-570 [155], [157].

   [317]Bell Lawyers Pty Ltd v Pentelow (2019) 93 ALJR 1007 at 1016 [28]; 372 ALR 555 at 562.

   Substantial damages for consequences not caused by wrongdoing

4. Mr Lewis' alternative submission was that the Australian Capital Territory was responsible for a genuine loss that he had suffered from the 82 days of imprisonment, namely the non-pecuniary damage including loss of liberty and injury to dignity and feelings for which the primary judge had assessed general damages at $100,000. Mr Lewis put this submission in two different ways. First, he argued that the "correct counterfactual" for assessing causation of loss is that rather than imprisoning the plaintiff unlawfully "the plaintiff is not imprisoned at all". Alternatively, Mr Lewis argued that the "but for" or counterfactual approach should not apply at all. He submitted that the question in this case should not be whether the wrongdoer's acts were necessary for the loss but whether the wrongdoer's acts were "sufficient in combination with other conditions to produce the harm"[318]. Neither argument should be accepted.

   [318]Hart and Honoré, Causation in the Law, 2nd ed (1985) at 249. 

5. As explained above, the test for causation of loss asks whether the wrongful act was necessary for the loss. The "but for" or counterfactual approach "directs us to change one thing at a time and see if the outcome changes"[319]. The change is the removal of the wrongful act. If the loss would lawfully have occurred but for the wrongful act then the wrongful act was not necessary for the loss. The counterfactual approach thus involves a hypothetical question where no other fact or circumstance is changed other than those which constituted the wrongful act[320].

   [319]Bostock v Clayton County, Georgia (2020) 140 S Ct 1731 at 1739.

   [320]Bartlett v Australia & New Zealand Banking Group Ltd (2016) 92 NSWLR 639 at 659 [83], 662 [101]; Martinez v Griffiths [2019] NSWCA 310 at [36].

6. Although the parties characterised the wrongful act as the denial of procedural fairness by the Board, the relevant act of the Board that caused the false imprisonment was the invalid decision of the Board to cancel Mr Lewis' periodic detention. The lack of procedural fairness was the reason why the decision was invalid and incapable of being a justification for the Board's action. The correct method of framing the counterfactual is therefore to ask whether Mr Lewis would lawfully have been subject to the same imprisonment but for the decision of the Board made in denial of procedural fairness. The answer to that question is "yes". The primary judge and the Court of Appeal concluded that such imprisonment, by a valid decision, was inevitable.

7. Mr Lewis' first argument on this point involved a novel test for causation where the counterfactual was not a hypothetical in which only the wrongful acts had not occurred. Instead, he treated the counterfactual as involving a hypothetical in which all the facts that would be necessary for the plaintiff's imprisonment, whether wrongful or not, were removed. On that counterfactual, the plaintiff would not be imprisoned at all. Such a counterfactual would be disconnected from the wrongful acts and would assume the answer to the very question being asked.

8. Mr Lewis submitted that without this novel counterfactual approach there could almost never be substantial damages for false imprisonment. He instanced the decision of the Court of Appeal of England and Wales in Parker v Chief Constable of Essex Police[321]. In that case, the police force of the Chief Constable of the Essex Police had concluded that Mr Parker and two other male suspects should be arrested simultaneously. A problem arose because the three men were located in different places and the officer who was to arrest Mr Parker, and who was aware of the evidence, was detained in traffic. In her place, Mr Parker was arrested by a surveillance officer, PC Cootes. The arrest, and consequent detention, of Mr Parker was unlawful because PC Cootes did not personally have reasonable grounds for the necessary suspicion to justify an arrest. The Court of Appeal, overturning the trial judge, held that Mr Parker was entitled only to nominal damages because the arrest would have occurred in any event. The Court said that the counterfactual test "is not what would, in fact, have happened had PC Cootes not arrested Mr Parker but what would have happened had it been appreciated what the law required"[322].

   [321][2019] 1 WLR 2238; [2019] 3 All ER 399.

   [322]Parker v Chief Constable of Essex Police [2019] 1 WLR 2238 at 2262 [104]; [2019] 3 All ER 399 at 421.

9. If the counterfactual approach in Parker were applied generally then it would, as Mr Lewis submitted, result in nominal damages in most cases of honest but unlawful imprisonment. Mr Lewis is correct that the Court of Appeal in Parker applied the wrong counterfactual approach. The correct counterfactual approach, which removes only the wrongful act, does not require the court to ask what would have happened if it had been appreciated what the law required. But Mr Lewis is not correct to treat the counterfactual as assuming that all acts necessary for the plaintiff's imprisonment had not occurred. The proper approach, taken by the trial judge in Parker, involves asking whether the loss would lawfully have been suffered but for the wrongful acts of PC Cootes. Damages should have been nominal only if[323] without the wrongful acts of PC Cootes the arrest would otherwise have been lawfully made, as it should have been. Thus, the Supreme Court of the United Kingdom described Parker as a case where "had things been done as they should have been, the claimant could and would have been arrested lawfully"[324].

   [323]Contrary to the factual finding at trial: Parker v Chief Constable of Essex Police [2017] EWHC (QB) 2140 at [153].

   [324]R (Hemmati) v Secretary of State for the Home Department [2019] 3 WLR 1156 at 1193 [112]; [2020] 1 All ER 669 at 702. For the insufficiency of "could have" see Kuchenmeister v Home Office [1958] 1 QB 496 at 512.

10. An example of the correct application of the counterfactual approach is the approach taken by Lord Dyson in Lumba to the earlier decision of the Court of Appeal in Roberts v Chief Constable of the Cheshire Constabulary[325]. Mr Roberts was falsely imprisoned by the police between 5.25 am and 7.45 am. The wrongful act which caused the false imprisonment during that time was a two hour and 20 minute delay in conducting a review of his detention as required by statute. The Court of Appeal held that Mr Roberts was entitled to substantial damages even though he would have been lawfully imprisoned but for the delay in conducting the review. In Lumba, Lord Dyson disagreed with the result of the Court of Appeal in that case and said that substantial damages should not have been awarded because but for the wrongful act Mr Roberts would still have been lawfully detained[326]. Similarly, in the Full Court of the Federal Court in Fernando v The Commonwealth[327] the reasoning applied by Besanko and Robertson JJ to conclude that only nominal damages should be awarded was "to consider what could and would have happened had the [wrongful act] not been committed".

    [325][1999] 1 WLR 662; [1999] 2 All ER 326.

    [326][2012] 1 AC 245 at 281 [93].

    [327](2014) 231 FCR 251 at 268 [86].

11. Mr Lewis' second argument also should not be accepted. He is correct that there are cases where liability for damage is imposed where acts of wrongdoing are merely, in the language of Hart and Honoré, "sufficient in combination with other conditions to produce the harm" which would have occurred even if the wrongdoer had acted lawfully[328]. An example given by Mr Lewis is a case where property is jointly destroyed by multiple fires all of which were sufficient to destroy the property but the defendant wrongdoer only caused one of the fires[329]. The short answer to Mr Lewis' submission is that the existence of these exceptional circumstances cannot justify abolishing the causal requirement that the wrongdoing must be necessary for the loss. If a loss would have lawfully occurred even without the wrongful act then exceptional justification is required before responsibility can be imposed on a defendant who merely contributed to the manner in which the damage occurred. Mr Lewis did not point to any exceptional justification in this case. None exists.

    [328]Hart and Honoré, Causation in the Law, 2nd ed (1985) at 249. 

    [329]Anderson v Minneapolis, St P & S S M Ry Co (1920) 179 NW 45 at 49. See also Swan v The Queen (2020) 94 ALJR 385 at 390 [25]; 376 ALR 466 at 473.

    Conclusion

12. The appeal should be dismissed with costs.