Lewis v Australian Capital Territory - [2019] ACTCA 16

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Lewis v Australian Capital Territory

Citation:

[2019] ACTCA 16

Hearing Date:

15 May 2019

Decision Date:

24 June 2019

Before:

Elkaim, Loukas-Karlsson and Charlesworth JJ

Decision:

See [77]

Catchwords:

APPEAL – GENERAL PRINCIPLES – In general and right of appeal – Appeal against award of nominal damages – judgment awarded in the sum of $1.00

HUMAN RIGHTS – CIVIL AND POLITICAL RIGHTS – unlawful imprisonment – unlawful cancellation of periodic detention order – 82 days in custody – principle of inevitability – whether or not it was inevitable that the appellant would be imprisoned

DAMAGES – PRINCIPLES OF DAMAGES – compensation and vindication – exemplary damages abandoned – vindicatory damages as a separate head of damages

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT) ss 59, 66, 68, 69, 73, 75

Crimes Act 1900 (ACT) s 23

Human Rights Act 2004 (ACT) s 18

Cases Cited:

Australian Capital Territory v Lewis [2016] ACTCA 34; 311 FLR 77

Fernando v Commonwealth & anor [2014] FCAFC 181; 231 FCR 251

Gray v Richards (No 2) [2014] HCA 47; 315 ALR 1

Jones v Dunkel (1959) 101 CLR 298

Lamb v Cotogno (1987) 164 CLR 1

Lewis v Chief Executive Department of Justice and Community Safety & Ors [2013] ACTSC 198; 280 FLR 118

Lewis v Chief Executive Department of Justice and Community Safety & Ors (No 2) [2014] ACTSC 196

Lewis v Australian Capital Territory [2015] ACTSC 167; 301 FLR 102

Lewis v Australian Capital Territory (No 2) [2015] ACTSC 343

R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245

Texts Cited:

McGregor on Damages (Sweet & Maxwell, 14^th ed, 1980)

Parties:

Steven James Lewis (Appellant)

The Australian Capital Territory (Respondent)

Representation:

Counsel

J Maconachie QC (Appellant)

P Garrison AM SC (Respondent)

Solicitors

Ken Cush & Associates (Appellant)

ACT Government Solicitor (Respondent)

File Number:

ACTCA 35 of 2018

Decision under appeal:

Court: ACT Supreme Court

Before: Refshauge J

Date of Decision: 16 February 2018

Case Title: Lewis v Australian Capital Territory
Citation: [2018] ACTSC 19

THE COURT:

The Appeal

1.           On 16 February 2018, Refshauge J made the following orders:
(a)   There be judgment for Steven James Lewis in the sum of $1.00; and
(b)   Unless any party applies by written submission within seven days for any other order, each party pay their own costs.

2. A Notice of Appeal against the above orders was filed on 23 November 2018.
3. The appellant complains that his Honour erred in only awarding him nominal damages.

Background

4. The origin of this matter lies in the conduct of the appellant on 21 September 2007 when he inflicted actual bodily harm on another person by smashing a glass into that person’s face.
5. On 24 January 2008, having pleaded guilty to an offence under s 23 of the Crimes Act 1900 (ACT), the appellant was sentenced to a period of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] ACTCA 16
Decision Date: 24 June 2019

CaseChat Overview and Summary

The appeal in *Lewis v Australian Capital Territory* concerned an award of nominal damages of $1.00 made by the trial judge in favour of the appellant, Mr Lewis, who had been unlawfully imprisoned for 82 days following the unlawful cancellation of his periodic detention order. The appeal was heard by the Supreme Court of the Australian Capital Territory, constituted by Elkaim, Loukas-Karlsson and Charlesworth JJ.

The central legal issues before the Full Court were whether the trial judge erred in limiting the damages to a nominal sum, and whether the principle of inevitability applied to preclude the appellant from recovering substantial damages for his unlawful imprisonment. The Court also considered the nature and availability of vindicatory damages as a distinct category of compensation in Australian law.

The Full Court held that the trial judge had erred in applying the principle of inevitability, which dictates that if an event is inevitable, damages cannot be recovered for that event. The Court reasoned that the principle of inevitability was not applicable in this context, as the appellant's imprisonment was not an inevitable consequence of the unlawful cancellation of his detention order. Furthermore, the Court affirmed that vindicatory damages, intended to vindicate a plaintiff's rights and deter future wrongdoing, are a recognised head of damages in Australian law, distinct from compensatory damages. The Court found that the appellant was entitled to more than nominal damages to reflect the seriousness of the infringement of his rights.

The Full Court allowed the appeal, set aside the award of nominal damages, and remitted the matter to the trial judge for reassessment of damages, including consideration of vindicatory damages.

Orders