Lewis v Australian Capital Territory
[2018] ACTSC 19
•16 February 2018
HUMAN RIGHTS ACT
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Lewis v Australian Capital Territory |
Citation: | [2018] ACTSC 19 |
Hearing Dates: | 15, 16 and 17 February 2016 |
DecisionDate: | 16 February 2018 |
Before: | Refshauge J |
Decision: | 1. There be judgment for Steven James Lewis in the sum of $1.00. 2. Unless any party applies by written submission within seven days for any other order, each party pay their own costs. |
Catchwords: | CRIMINAL LAW – PROCEDURE – Periodic detention – cancellation of offenders order – loss of liberty – inquiry into whether offender’s periodic detention obligations breached – legislation creating regime for automatic cancellation of periodic detention for failure to attend for periods held valid – offender not afforded procedural fairness – offender ultimately not required to serve balance of sentence either as periodic detention or full-time imprisonment – Crimes (Sentence Administration) Act 2005 (ACT) TORTS – FALSE IMPRISONMENT – Damages – general damages for false imprisonment – public law damages – diminished reputation pleaded – economic impact of false imprisonment – aggravated damages – quantum of damages – nominal damages CIVIL AND POLITICAL RIGHTS – HUMAN RIGHTS – Unlawful arrest or detention – compensation for – whether award of damages for statutory right should include both compensation and vindication – public law remedy – s 18(7) of the Human Rights Act 2004 (ACT) |
Legislation Cited: | Administrative Decisions (Judicial Review) Act 1977 (Cth), s 17(1)(a) Administrative Decisions (Judicial Review) Act 1989 (ACT), s 17(1)(a) Supreme Court Act 1933 (ACT), ss 4, 19, 37U(2) Court Procedures Rules 2006 (ACT), rr 417, 1619, 3503, 3553, 3554, 3560 Parole Ordinance 1976 (ACT) Australian Constitution, Ch III Canadian Charter of Rights and Freedoms International Covenant on Civil and Political Rights, 1966, 999 UNTS 171 (opened for signature 16 December 1966, entered into force 28 January 1993), arts 1, 2, 9 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd session, 183 plen mtg, UN Doc A/810 (10 December 1948) |
Cases Cited: | Absolon v NSW Technical and Further Education Commission [1999] NSWCA 311 Actrol Parts Pty Ltd v Coppi (No 3) [2015] VSC 758; 49 VR 573 McFadzean v Construction, Forestry, Mining and Energy Union [2007] VSCA 289; 20 VR 250 McIntosh v Webster (1980) 43 FLR 112 Riordan v Parole Board of the Australian Capital Territory (1981) 34 ALR 322 Vasiljkovic v Commonwealth [2006] HCA 40; 227 CLR 614 Victorian Police Toll Enforcement v Taha [2013] VSCA 37; 49 VR 1 |
Texts Cited: | Mark Aronson, Matthew Grove and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co, 6th ed, 2017) RP Balkin and JLR Davis, Law of Torts (LexisNexis Butterworths, 5th ed, 2013) Marc Bossuyt, Guide to the Travaux Preparatoire to the International Covenant on Civil and Political Rights (Martineus Nyhoff Publishers, 1987) Sir Edward Coke, The First Part of the Institutes of the laws of England or, a commentary upon Littleton (Company of Stationers, London, 1664) Rupert Cross, Precedent in English Law (Clarendon Press, 3rd ed, 1977) G Dal Pont, The Law of Costs (LexisNexis Butterworths, 3rd ed, 2013) Peter Hogg and Alison Bushell, “The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All)” (1997) 35 Osgoode Hall Law Journal 75 R H Kerley, Brooms Legal Maxims (Sweet & Maxwell, 10th ed, 1939) P A Landon, Pollock on Torts (Stevens & Sons, 15th ed, 1951) W Lovell, K Leyton and J Forder, Lovell Lupton Principles of Remedies (LexisNexis Butterworths, 5th ed, 2012) Leighton McDonald, “Rights, ‘Dialogue’ and Democratic Objections to Judicial Review” (2004) 32 Federal Law Review 1 Harvey McGregor and John D Mayne, McGregor on Damages (Sweet & Maxwell, 14th ed, 1980) Harvey McGregor, McGregor on Damages (Sweet & Maxwell, 16th ed, 1997) The Hon Michael McHugh AC QC, “A Human Rights Act, the Courts and the Constitution”(Presentation given at the Australian Human Rights Commission, 5 March 2009) John Stanhope, MLA, Presentation Speech, Hansard 18 November 2003 Report of ACT Charter Consultative Committee, Towards an ACT Human Rights Act (Canberra, May 2003) Explanatory Statement for the Human Rights Bill 2003 (ACT) Explanatory Note to the New Zealand Bill of Rights Bill |
Parties: | Steven James Lewis (Plaintiff) Australian Capital Territory (Defendant) |
Representation: | Counsel Mr P Tierney (Plaintiff) Mr P Garrisson SC, Mr P Saidi and Ms N Tarbet (Defendant) |
| Solicitors Ken Cush & Associates (Plaintiff) ACT Government Solicitor (Defendant) | |
File Number: | SC 354 of 2009 |
Refshauge J:
Background
In late 2007, the plaintiff, Steven James Lewis, was involved in a fight outside a Fyshwick tavern. He smashed a glass into the face of another man and was later arrested and charged with recklessly or intentionally inflicting actual bodily harm on the victim, an offence against s 23 of the Crimes Act 1900 (ACT).
On 24 January 2008, he was, on his plea of guilty, sentenced in the ACT Magistrates Court to a term of 12 months imprisonment but, under s 59 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act), as it then stood, the Court, by order, set the whole of the term to be served by periodic detention, a sentencing disposition since abolished in the ACT.
The sentence of periodic detention required Mr Lewis to serve a period of custody each weekend from early Friday evening to late Sunday afternoon during the 12 months sentence. Mr Lewis failed to attend on a number of weekends. At that time, the Sentence Administration Board (the Board) had power, and was required, to cancel the periodic detention order if an offender failed, without reasonable excuse, to attend for detention on two or more occasions.
As a result of Mr Lewis failing to attend as required on more than two occasions, the Board held a hearing on 8 July 2008 and cancelled the periodic detention order. As a result, Mr Lewis was required to serve the balance of the period of imprisonment in full-time custody.
A warrant was issued and, on 5 January 2009, Mr Lewis was arrested and commenced serving the balance of the sentence of imprisonment.
Mr Lewis commenced proceedings challenging the lawfulness of the decision of the Board and, on 27 March 2009, was released on bail, having served 82 days in full-time custody following the Board’s cancellation of the periodic detention order. The Court, when releasing Mr Lewis, was not asked to stay the sentence and did not do so.
The challenge Mr Lewis made to the decision of the Board was ultimately successful when I decided that the Board had not accorded Mr Lewis procedural fairness: Lewis v Chief Executive of Department of Justice and Community Safety of the Australian Capital Territory [2013] ACTSC 198; 280 FLR 118 (Lewis (No 1)).
Mr Lewis was ultimately not required to serve the balance of the sentence of imprisonment either as periodic detention or in full-time custody: Australian Capital Territory v Lewis [2016] ACTCA 34; 311 FLR 77 (Lewis (No 3)).
Mr Lewis has now sought damages as compensation for the 82 days he spent in custody as a result of the decision of the Board, which decision was found to be invalid.
Mr Lewis’s claim for damages and compensation is based on two grounds, the first being a common law action for false imprisonment, and the second being a claim for compensation under s 18(7) of the Human Rights Act 2004 (ACT) (Human Rights Act).
The Pleadings
Mr Lewis commenced two proceedings on 25 March 2009, both challenging the decision of the Board and his consequent imprisonment. The first of these proceedings were taken against the Chief Executive of the Department of Justice and Community Safety and the Board. That resulted in the decision in Lewis (No 1).
These proceedings are the second of those proceedings and were taken against the Territory. In these proceedings, in addition to orders challenging the validity of the decision of the Board and its consequences, Mr Lewis seeks orders under the Human Rights Act, including an order in the nature of certiorari, and damages.
On 3 July 2015, this Court decided that Mr Lewis did not have to serve any balance of the term of imprisonment, as, when granted bail by the then Chief Justice, no stay of the sentence had been granted and so the sentence had expired: Lewis v Australian Capital Territory [2015] ACTSC 167; 301 FLR 102 (Lewis (No 2)). That decision was the subject of an appeal by the Australian Capital Territory, the defendant, but the appeal was dismissed in Lewis (No 3).
After the decision in Lewis (No 2), Mr Lewis sought and was granted leave to amend the Originating Claim in these proceedings and the attached Statement of Claim to focus only on the claim he now made for compensation for what he said was his unlawful detention following the invalid decision of the Board.
The defendant, the Australian Capital Territory, to which I will refer as “the Territory”, filed a Defence to the Amended Statement of Claim. Mr Lewis did not file a Reply.
Many of the allegations in the Amended Statement of Claim were admitted by the Territory in its Defence.
Thus, it was alleged by Mr Lewis and admitted by the Territory that it:
1.was a body politic established under the Australian Capital Territory (Self‑Government) Act 1988 (Cth) and liable to be sued in its name;
2.through the Chief Executive of the Department of Justice and Community Safety, was responsible for the custody of persons detained as a result of a sentence imposed by an ACT court;
3.maintained within the Department an agency, ACT Corrective Services, with functions related to the detention of such persons; and
4.was vicariously liable for the conduct of the Chief Executive and employees performing duties in ACT Corrective Services.
It was also alleged and admitted that, on 24 January 2008, Mr Lewis was convicted by Magistrate Fryar in the Magistrates Court of the offence of recklessly or intentionally inflicting actual bodily harm on the victim and was sentenced to 12 months imprisonment to commence that day and to be served by periodic detention to commence on 25 January 2008 when Mr Lewis was required at 7:00pm to report to the Symonston Periodic Detention Centre.
It was alleged and admitted that the Board exercised functions under the Sentence Administration Act and, while it was alleged and admitted that liability attached to the Territory for any liability attaching to an “official or person” of the Board under s 179 of the Sentence Administration Act, the Territory denied that it was vicariously liable under that section for such officials.
It was alleged and admitted that the Board, on 8 July 2008, met in the absence of Mr Lewis, cancelled the periodic detention order made by Magistrate Fryar, ordered that a warrant issue for his arrest and, on his arrest, he be placed in the custody of the Chief Executive to serve by full-time custody the balance of the sentence of imprisonment imposed on him.
While it was alleged and admitted that this Court set aside that decision of the Board, the Territory denied that the Board’s decision was invalid and also denied that the setting aside of the decision rendered the cancellation of the periodic detention order and the issuing of the warrant void (both of which denials seemed to controvert the decision in Lewis (No 1)).
Mr Lewis alleged that the decision of the Board did not authorise the lawful arrest and detention of him, but the Territory denied these allegations and alleged that the warrant issued on 8 July 2008 authorised Mr Lewis’s arrest and detention.
While admitting Mr Lewis’s allegation that he was arrested by members of the Australian Federal Police on 5 January 2009 at his place of employment, the Territory denied that the members were acting on behalf of the Territory.
Mr Lewis alleged and the Territory admitted that the next day the secretary of the Board “executed” a warrant under s 12(1) of the Sentence Administration Act for the imprisonment of Mr Lewis in the Chief Executive’s custody for the balance of the term of imprisonment imposed, namely 9 months 1 week and 3 days. Presumably the admitted allegation that the Board “executed” that warrant was intended to mean that it was signed and presumably also issued, not the usual meaning of executing a warrant, namely to put it into effect: Sir Edward Coke, The First Part of the Institutes of the laws of England or, a commentary upon Littleton (Company of Stationers, London, 1664) at 154a.
While it was alleged and admitted that Mr Lewis remained in full-time detention or custody from 5 January 2009 until 27 March 2009, the Territory said that he was initially held in detention by the Australian Federal Police from 5 to 6 January 2009 under the Board’s warrant and thereafter under the sentence originally imposed by the Magistrates Court. The Territory denied the balance of the allegation in the relevant paragraph which seemed limited to the allegation that this was for a period of 82 days, though I calculated it to be 81 days, the difference perhaps being because of my application of the principle established in Edwards v The Queen (1854) 9 Exch 628 at 631. Neither party, however, disagreed with the period being 82 days. For the purpose of these reasons, I accept that calculation.
Mr Lewis alleged and the Territory denied that the imprisonment was unlawful, the Territory asserting that it was justified by the sentence originally imposed in the Magistrates Court.
Mr Lewis alleged and the Territory denied that the imprisonment he suffered was not in accordance with procedures established by law and was contrary to his rights under the Human Rights Act. Though unspecified, these presumably were that there was a breach of the right to liberty and to freedom from arbitrary detention under s 18(1) and not to be deprived of liberty except according to lawfully established procedures under s 18(2)) and that, under s 18(7), of that Act, he was entitled to compensation for the imprisonment, an entitlement denied by the Territory on the ground that the section gave no such entitlement.
Mr Lewis alleged and the Territory admitted that it had not paid Mr Lewis compensation, the Territory denying any liability to pay such compensation.
In the alternative, Mr Lewis alleged that he had been wrongfully arrested and falsely imprisoned, thus deprived of his liberty, all of which allegations the Territory denied.
Mr Lewis also alleged that, as a result of the matters previously pleaded, he had suffered and sustained injuries and had suffered loss and damage. He listed 43 particulars of the injuries, loss and damage. The Territory denied that he had suffered such injuries, loss and damage. I pause to note that the particulars were all of matters that would be compensated under the provisions of the law relating to what is ordinarily called general damages. In particular, no matters of special damage were specified. As to the difference between general and special damages, see Paff v Speed (1961) 105 CLR 549 at 558-9.
Rule 417 of the Court Procedures Rules 2006 (ACT) requires a party’s pleading to set out the amount of any claimed special damages that is known to the party. This is no pedantic requirement: Meredith v Palmcam Pty Ltd [2000] QCA 113; 1 Qd R 645 at 647; [7]. One of the reasons for this requirement, as explained in Ratcliffe v Evans [1892] 2 QB 524 at 528, is to warn a defendant of the claim and so to prevent surprise. That is, of course, one of the central purposes of pleadings: Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd [2010] ACTSC 20; 4 ACTLR 114 at 121-2; [28].
There were no facts alleged in the pleading to show what special damages were claimed nor how any special damage was to be quantified.
Mr Lewis further alleged that the Territory (presumably intending to allege that in reality its officers, employees or agents for whom it was liable, vicariously or under s 179 of the Sentence Administration Act, but not expressly making that allegation) had acted in such a way as to injure his proper feelings of pride and dignity and had given rise to humiliation and disgrace, distress, insult and pain and that the actions of the Territory (again, presumably its officers, employees or agents for whom it was liable) was accompanied by arrogance, insolence, insult, spite and high-handedness. The Territory denied the allegations but did not complain of the failure to plead the way in which the Territory was liable for acts of its officers, employees or agents and I did not further consider this inadequacy of the pleading.
Mr Lewis claimed damages, aggravated damages, exemplary damages, compensation under s 18(7) of the Human Rights Act, interest under r 1619 of the Court Procedures Rules and costs.
The Territory denied that Mr Lewis was entitled to the relief claimed but further alleged that, if it was liable to him for compensation or damages, then any such compensation or damages would be nominal by reason that, but for the error made by the Board, the periodic detention order would have been cancelled in any event and he would have been imprisoned as he was.
The Territory did not plead any other defence, such as consent, sometimes referred to as volenti non fit injuria: Herd v Weardale Steel, Coal and Coke Co Ltd [1915] AC 67 at 73; Roggenkamp v Bennett (1950) 80 CLR 292 at 300.
Thus, the issues in the case as disclosed from the pleadings were:
1. what liability the Territory had for conduct of officials or others connected with the Board under s 179 of the Sentence Administration Act;
2. whether the decision of the Board was invalid when made or whether it was only invalid when set aside in Lewis (No 1);
3. whether the Territory was liable for conduct by the members of the Australian Federal Police who arrested Mr Lewis;
4. whether Mr Lewis’s imprisonment from 6 January 2009 was authorised by the original sentence of the Magistrates Court or by the decision of the Board;
5. related to that, whether the imprisonment of Mr Lewis was unlawful;
6. whether s 18(7) of the Human Rights Act gave Mr Lewis a right to claim compensation from the Territory;
7. whether Mr Lewis was wrongfully arrested and falsely imprisoned; and
8. if so, what damages was Mr Lewis entitled to recover from the Territory.
Not all of these matters were the subject of consideration at the trial, either by evidence or submissions. This particularly meant that the issues numbered 1 and 3 were not addressed in written or oral submissions and I do not need to consider them further.
I shall, therefore, deal with the other issues as follows:
A. Was the imprisonment of Mr Lewis from 5 January to 27 March 2009 unlawful? I shall deal with this in the context of the claim for false imprisonment. (Issues 2, 3, 4 and 7).
B. If so, was Mr Lewis entitled to any damages and, if so, what damages? (Issue 8).
C. What, if any, compensation is Mr Lewis entitled to under the Human Rights Act? (Issue 6).
First, however, it is appropriate to turn to the facts and the evidence.
Facts
To their credit and that of their legal representatives, the parties agreed on a Statement of Facts. As agreed in that Statement, the facts of this matter are as follows:
1.On 3 December 2007, in the course of preparing a Pre Sentence Report, and by signing a document setting out the obligations of offenders under section 43 of the Crimes (Sentence Administration) Act 2005 (“the C(SA) Act”), the plaintiff agreed to an order that he serve any sentence of imprisonment by way of periodic detention and signed an acknowledgement of his obligations under a periodic detention order.
2.On 24 January 2008 the plaintiff was convicted by Magistrate Fryar in the ACT Magistrate’s Court in respect of an offence being CC2007/10691 (recklessly or intentionally inflict actual bodily harm). The Magistrate ordered:
(i) STEVEN JAMES LEWIS, DOB 15.05.1980 of 9 BURROWES PLACE, WANNIASSA, ACT 2903 be sentenced to a total term of imprisonment of 12 months the sentence starts on 24 January 2008, ends on 23 January 2009 and is to be served as periodic detention;
(ii) The periodic detention period starts on 25 January 2008; and
(iii) The offender is to first report for periodic detention at Symonston Periodic Detention Centre, Mugga Lane, Red Hill ACT on 25 January 2008 at 7.00 pm.
3.Between 24 January 2008 and 11 May 2008, the plaintiff reported to the Symonston Periodic Detention Centre and performed periodic detention.
4.Between 24 January 2008 and 11 May 2008, the plaintiff breached his periodic detention obligations:
(i) By failing to report to Symonston Periodic Detention Centre for the periods commencing 1 February 2008, 28 March 2008 and 4 April 2008; and
(ii) By reporting for periodic detention, but providing a positive test sample for alcohol and being directed not to perform periodic detention on 11 April 2008.
5.On 11 April 2008, the plaintiff signed a breath screening analysis printout and summary statement and by signing an allegation of breach and direction to leave;
6.On 19 April 2008, the plaintiff signed an acknowledgement of having received a notice of inquiry relating to the alleged breaches for the periods commencing 1 February 2008, 28 March 2008, 4 April 2008 and 11 April 2008, dated 19 April 2008.
7.On or about 12 May 2008, without informing the defendant, the plaintiff left Canberra to work in Griffith. From that date, the plaintiff did not report for periodic detention.
8.Between 12 May 2008 and 7 July 2008, the Board sent correspondence to the plaintiff’s mother’s address in Wanniassa, relating to the breaches above, other alleged breaches, its proposed inquiries and its directions for him to attend the inquiries. His mother did not send the correspondence onto the plaintiff.
9.On or about 7 July 2008, the plaintiff returned from Griffith to Canberra. At his mother’s address, he saw that there were five to six letters addressed to him which he believed to be from ACT Corrective Services. The plaintiff panicked and left his mother’s home. He did not read the letters.
10.On 8 July 2008 the defendant by its Board officials the Deputy Chair and Presiding member Ms S Willings, member Mr R Maxwell and member Mr P Budworth conducted a Section 66 inquiry in the absence of the plaintiff. Minutes of the meeting were taken and recorded by the Board.
11.At or about 9.25 am on 5 January 2009 the plaintiff was arrested by members of the Australian Federal Police acting on authority of a warrant issued by the Board at Capital Car Detailing, Fyshwick, ACT and taken to the Regional Watch House.
12.At or about 9:00 am on 6 January 2009, as part of his admission to the Alexander Maconochie Centre, the plaintiff completed an Induction Assessment form.
13.On 6 January 2009 the secretary of the Board executed a warrant for imprisonment under section 12(1) of the C(SA) Act directed to the Chief Executive of the Department of Justice and community Safety and her delegates under the C(SA) Act to keep the plaintiff under full time detention under section 13 of the C(SA) Act and the Corrections Management Act 2007 for 9 months 1 week and 3 days to commence from 5 January 2009 and expire 14 October 2009.
14.On 27 March 2009, in the plaintiff’s application, the Chief Justice of the Supreme Court granted bail to the plaintiff and he was released from custody.
15.On 1 October 2013, by Order of the Supreme Court, the decision of the Board taken on 8 July 2008 was set aside.
Evidence
In addition to the agreed facts, an agreed bundle of documents was admitted into evidence. Further, Mr Lewis made two affidavits and gave oral evidence during which he was cross-examined.
So far as this evidence supported the agreed facts set out above, I do not, clearly, need to refer to it again.
I accept that, while, when giving his evidence, Mr Lewis obviously showed that he was aggrieved by being arrested on 5 January 2009, and viewed the events of his arrest and subsequent imprisonment as being, because of the invalidity I found in the way that the Board made its decision, a demeaning and shaming experience for him, Mr Lewis was frank and open in his evidence. While much was put to him in cross-examination, his evidence was largely unchallenged and I generally accept it.
From all this evidence I make the following findings in addition to the facts agreed in the Statement of Facts which, of course, I accept.
Mr Lewis was, at 24 January 2008, when he was sentenced by Magistrate Fryar in the Magistrates Court, 27 years old. He lived with his mother and was employed at Capital Car Detailing in Fyshwick in the Australian Capital Territory.
At that time, he had had some contact with the criminal law. He had been taken into custody on 21 November 2003 and 13 September 2004, when, on each occasion, he had been tested for alcohol in his breath and subsequently charged with drink-driving offences. He had been arrested also on 31 October 2007 for offences of violence, including the offence which led to the sentence of imprisonment to be served by periodic detention, and property damage which were subsequently dealt with on 24 January 2008. On these occasions, he had spent some hours in custody in police stations, but he had not been otherwise imprisoned before 5 January 2008.
Following his sentencing by Magistrate Fryar, he generally complied with his periodic detention obligations by attending to perform periodic detention in custody, though with four breaches by three failures and a deemed failure to attend for periodic detention between 24 January and 11 May 2008. He denied that anyone had spoken to him about missing these periods, though he was forced to acknowledge that he had signed a document confirming the breach occasioned when he reported for periodic detention on 11 April 2008 while drunk and was sent away, thus being deemed to have failed to perform periodic detention on that occasion.
Mr Lewis agreed that he understood what a sentence of periodic detention order was and that he was required to serve periods of detention but otherwise not full-time custody. He understood that he had various obligations under the periodic detention order. He was aware that the sentence was effective until 23 January 2009. He was aware that those obligations were imposed on him personally and that he was under a personal duty to comply; it was not for the authorities to chase him up for compliance.
He was also aware that, if he missed periods of detention, there would be consequences, though the only consequence he mentioned was that the missed periods would have to be made up for at the end of the period. See s 58 of the Sentence Administration Act. He seemed otherwise vague about the consequences, though he did say that he recognised that they could be serious. He was not aware of the possibility of the cancellation of the order, but thought that the Court had a power to re-assess the sentence. He knew that there was a possibility of full-time custody.
On or about 12 May 2008, Mr Lewis decided to assist his father on his father’s farm in Griffith, New South Wales. His father suffered from emphysema and was due to have half a lung removed as a result.
He did not tell anyone at ACT Corrective Services, which agency administered periodic detention orders, that he was leaving to work with his father and that, in order to do so, he had moved to Griffith. He said that he did not tell anyone because he was scared of what would happen, that he would be prohibited from going to help his father and forced to serve the periodic detention order.
He did go to Griffith and, in doing so, he breached a number of his periodic detention obligations. He did not tell anyone that he had gone because, he said, he felt scared that they might “throw [him] straight into full-time prison without ever releasing [him] for what [he] wanted to do … So [he] just left”. He did not attend any further periods of detention.
He worked on his father’s farm for 8 weeks and his father then drove him back to Canberra on 7 July 2008. Mr Lewis knew that, on his return, there would be serious consequences, that he was likely to be in serious trouble.
On his return, he found five or six letters awaiting him at his home in Canberra and which had not been forwarded on to him. He knew that they were from ACT Corrective Services. He thought that they would contain “bad news” and, making a conscious choice, he did not open them. He threw them out.
He did not notify ACT Corrective Services of his return nor of his address. This was a conscious decision “to avoid any consequence”.
In about October 2008, he moved out of his mother’s home to a self-contained room at his place of employment because he made the conscious choice to try and avoid further correspondence with ACT Corrective Services and to prevent the authorities from contacting him directly. He knew that, by avoiding the periodic detention obligations, of which, he agreed, he was well aware, he would be in trouble, perhaps serious trouble.
He managed to regain work with his former employer. Even then, he made no attempts to make any contact with ACT Corrective Services because, he said, he was scared.
His employer knew that he was at risk of being arrested by police though he had not made his fellow workers aware of that possibility.
His employer also knew about his criminal record. He had had to take time off from work to attend Court and, on the occasion when he was disqualified from holding or obtaining a driver licence, his employer had to know of this, as did his fellow workers.
When Mr Lewis was arrested, he was at his place of work and it was about lunchtime. He saw six or seven police officers arrive. There were, at the time, six or seven fellow workers in his employer’s workshop. He knew why the police were attending, so he ran to his room and hid under the bed. The police, however, went looking for him.
They came to his room and searched it, found him under the bed and told him to come out. He did so and they handcuffed him, no doubt because he had tried to elude them. He was told he was under arrest.
He felt ashamed as he saw his workmates watching him being taken in handcuffs to the police caged vehicle. When in the vehicle, the handcuffs were removed and he was “body searched”. His fellow workers could see these procedures. The precise mechanism of the body search was not described but it does not appear to have been a strip search for he specifically described that later.
He was taken to the City Watch House and held in a cell. He later telephoned his mother who was, understandably, upset; he described her as “distraught”. He was upset and scared because he did not know how long he was to be held in custody nor what would happen with his job or “[his] life” while in custody.
He was later taken to the Belconnen Remand Centre. He was strip-searched and given prison garb to wear and then he was placed in a cell which he said smelt of faeces. He felt upset “thinking that [his] life was over for the time being because [he had had] his freedom taken away”. He thought he would lose his job and his girlfriend.
It was put to Mr Lewis that, when he was inducted at the Remand Centre, he told the person assessing him that his mood was “not too bad”. He could not recall that, but the document on which this was recorded, accurately, was admitted as part of the tender bundle of documents.
Given his previous experience, this response seems quite likely. I am satisfied it accurately recorded his mood. I am not satisfied that the initial period in custody was particularly traumatic for him.
Later, however, he saw a fight in the prison which really scared him.
Mr Lewis did not have a pleasant time in custody. He found it difficult to sleep; he feared for his safety; he saw other fights which scared him; he spent much of his time in a cell, though even there he did not feel secure. There were also times when the prison was “locked down” for an entire day and night.
He said that he saw his mother “once every one or two weeks for an hour” while before his arrest he had spent an evening with her once a week. He also owned a motor vehicle which he was going to repair. It was left at his employer’s workshop and it was apparently later taken to the wreckers because his employer needed the space. Whether he would have an action for trespass or conversion is not clear but seems likely.
Mr Lewis said that, while in custody, he missed working and missed his mates. Indeed, when he was released, he said he was “really happy … because [he] hated being in prison”.
On his release, he returned to his employment. He took a little time to find a place to live and he was assisted by his mother and friends with money and food before he received his first wages payment.
Although this had been the first time Mr Lewis had been in prison it was not, as noted above (at [47]), the first time he had been in custody.
Evidence was received provisionally about what was said would constitute special damages claimable by Mr Lewis. This included that the wages that he earned from his employer when he returned from Griffith which was a “take home” wage of $650 per week. He earned no income after his arrest while he was in prison.
False imprisonment
The right to liberty is accepted as very important in a liberal civilised society. It has been recognised in the Human Rights Act but was always a value strongly protected at common law. The tort of false imprisonment is intended, by its response to a failure of the processes leading to the deprivation of liberty, to re-inforce their importance.
As Deane J said in Cleland v The Queen (1982) 151 CLR 1 at 26:
It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed.
The tort of false imprisonment is a form of trespass to the person. It is committed when there is a total deprivation of a person’s liberty, which is caused by the defendant’s voluntary and unlawful conduct. Whether the plaintiff has been imprisoned is a question of fact: Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 at 51, 54. If the deprivation of liberty is proved, the onus falls on the defendant to prove lawful justification or consent: CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [173], [400]; Myer Stores Ltd v Soo [1991] 2 VR 597.
It is irrelevant whether the defendant intended to act unlawfully or to cause injury. In Ruddock v Taylor [2005] HCA 48; 222 CLR 612 at 650; [140], Kirby J (in dissent, but not on this point) described unlawful imprisonment as a “tort of strict liability”, citing R v Governor of Brockhill Prison; Ex parte Evans (No 2) [2001] 2 AC 19 at 26. His Honour explained that “[t]his is because the focus of this civil wrong is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant.” There is no issue about fault: Cowell v Corrective Services Commission (1988) 13 NSWLR 714 at 743.
Indeed, even if the imprisonment is for the benefit of the person detained, as in a mental health facility, it is nonetheless unlawful if not otherwise legally justified: Sinclair v Broughton (1882) 47 LT 170 at 172; Marshall v Watson (1972) 124 CLR 640 at 642.
In McFadzean v Construction, Forestry, Mining and Energy Union [2007] VSCA 289; 20 VR 250 at 260; [30], the Victorian Court of Appeal expressly and unanimously endorsed the identification of the cause of action of false imprisonment articulated by Ashley J in McFadzean v Construction, Forestry, Mining and Energy Union [2004] VSC 289 at [87]‑[94], as follows:
87 Fleming [Law of Torts, 9th ed, 1993], describes false imprisonment as –
... the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either actually causing his confinement or preventing him from exercising his privilege of leaving the place in which he is.
Within that description lie a number of aspects which require expansion.
88 First, whilst restraint must be total and whilst false imprisonment involves restrain at or in some identifiable place, the concept of incarceration has developed an expanded meaning. There can be false imprisonment even if there is a notional means of escape, provided that an available means is unreasonable – as, for instance, involving risk to life or limb.
89 Second, restraint does not imply the use of physical force. It is sufficient that there be submission to the control of another where the person is given to understand that he must submit or else will be compelled.
90 Third, the constraint sufficient on a person’s will, sufficient to cause him to submit, may involve a threat against the person, or against another person, or even valuable property.
91 Fourth, although in some cases restraint may be constituted by a person’s submission in the face of a threat, it is not necessarily the case that the victim must apprehend that he is being imprisoned. It has been said that a person may be imprisoned though asleep, unconscious or a lunatic. One of the described consequences of false imprisonment is humiliation; and as Fleming observes, humiliation is no less when it is only learnt of afterwards, or when it is known only to others at the time.
92 Fifth, in those cases where a person is aware of circumstances what would otherwise constitute an imprisonment, the restraint must occur against the person’s will. So, voluntary compliance with a police request to a person to come along and clear himself does not necessarily amount to an imprisonment.
93 Sixth, whether there is a false imprisonment is a question of fact.
94 Seventh, once imprisonment is established, it is for the defendant to prove lawful justification either at common law or by statute.
(Footnotes omitted)
I would simply add, lest the formulation of the aspects referred to in [92] and [94] quoted above might mislead, that the question of a plaintiff’s will is a matter of defence to be raised by the defendant. See Mailau v Riordan [2001] ACTSC 13 at [28] and the cases there cited.
The cause of the imprisonment was the decision of the Board to cancel the periodic detention order which I set aside on public law grounds and then the issuing of a warrant for Mr Lewis’s arrest. There is no doubt that a breach of public law principles can found an action at common law for damages for false imprisonment: Holgate‑Mohammed v Duke [1984] AC 437 at 443.
It is accepted, in this case, that Mr Lewis was imprisoned and thereby totally deprived of his liberty. There was no issue of consent raised in the proceedings. Therefore, the issue was whether there was a lawful justification for Mr Lewis’s imprisonment.
Was the imprisonment lawful?
Mr Lewis claimed that the order made by the Court in Lewis (No 1), setting aside the Board’s decision of 8 July 2008 to cancel his periodic detention, had the effect of depriving the Territory of any lawful justification for his arrest and detention.
The Territory submitted that the conviction entered and the sentence of imprisonment imposed by the ACT Magistrates Court in January 2008 provided a lawful basis for the detention of Mr Lewis, notwithstanding the decision in Lewis (No 1). The order made by the Magistrates Court required Mr Lewis to serve 12 months imprisonment; he “was always liable to the sentence of full-time imprisonment”: Jacka v Australian Capital Territory [2014] ACTCA 49; 290 FLR 200 at 219; at [85].
The Territory submitted that the part of the order that required Mr Lewis to serve periodic detention was not a distinct or separate order for imprisonment; rather it was merely a disposition that allowed him to fulfil the sentence by agreeing to be bound by the conditions of periodic detention.
In addition, the Territory submitted that the decision to invalidate the decision of the Board did not retrospectively render the decision void ab initio.
These matters raise a range of issues with which I need to deal in these reasons.
The first issue is the nature and effect of the decisions that I made in Lewis (No 1). In addition to declarations not presently relevant, I set aside the decision of the Board which it made on 8 July 2008.
Nature and Effect of Decision in Lewis (No 1)
The proceedings in Lewis (No 1) came before the Court on an application for an order in the nature of habeas corpus. As permitted, especially where, as in this case, the case cannot then be heard to completion in a short period of time, Mr Lewis was granted bail: Re Amand [1941] 2 KB 239 at 249; Al-Kateb v Godwin [2004] HCA 347; 219 CLR 562 at 579; [26].
The orders sought in the Originating Application included, as well as an order in the nature of habeas corpus, a declaration of the invalidity of certain sections of the Sentence Administration Act, costs and “such other orders as the court considers appropriate”: Lewis (No 1) at 123; [9].
No application was made in terms for judicial review or for other prerogative relief. To make such other applications when seeking a writ, or orders in the nature of, habeas corpus, is permitted and, subject to some historical limitations, not uncommon. Thus, in this Court in R v Turnbull Ex parte Petroff (1971) 17 FLR 438 at 439, the applicants sought writs of prohibition as well as of habeas corpus. On occasion, declarations have also been sought in separate proceedings heard and determined together: R v Commissioner of Police; Ex parte Ivusic (1973) 1 ACTR 65; Lewis v Minister for Immigration, Local Government and Ethnic Affairs (1988) 89 FCR 218.
More commonly, however, certiorari would also have been sought at the same time as habeas corpus, following the practice of the Court of King’s Bench: In Re Weetra (1978) 18 SASR 321 at 326.
A formal order of release made on the application for habeas corpus may have the same effect as an order in the nature of certiorari: Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman (1994) 123 ALR 478 at 480.
A modern trend, however, is for the Court not to require such procedural purity as it may well treat the application for habeas corpus as if it were an application for certiorari: Secretary of State for the Home Department; Ex parte Mughal [1973] 1 WLR 1133.
These proceedings were, after Mr Lewis was granted bail, then conducted on the basis of a two-pronged challenge to the decision of the Board; one based on administrative law claims (improper or ineffective delegation, invalid convening of meetings, failure to accord natural justice) and a constitutional claim (invalidity by granting judicial power to an administrative body). The only challenge that succeeded was that relying on the failure of the Board to accord natural justice.
It was in this legal and procedural context that the order referred to above (at [82]) was made. I then sought submissions from the parties as to consequential orders. As a result, on 7 November 2013, I made an order discharging Mr Lewis from his bail obligation and a temporary stay. Later, after I received further submissions, I made costs orders: Lewis vChief Executive of Department of Justice and Community Safety (No 2) [2014] ACTSC 196 (Lewis No 5)).
Thus, there may theoretically be a procedural lacuna in that, as well as the decision of the Board, the warrant it issued should also have been set aside, for it was the warrant issued by the Board which was the authority to the police to arrest him and to the Chief Executive to hold Mr Lewis in custody. The warrant, of course, depended on the validity of the Board’s decision and, if any attempt were made to enforce the warrant after I had set aside the Board’s decision, there would be a swift response. Indeed, I would expect the Territory to accept that, despite the absence of a formal order setting aside the warrant, it should take no steps – as it has not done and given no indication of an intention to do so – to enforce it.
Nevertheless, the procedural position led the Territory to submit that I had not made the necessary findings which would have rendered Mr Lewis’s detention unlawful. I had not found that the decision of the Board was infected by jurisdictional error nor that the decision of the Board was a nullity for all purposes.
Mr Lewis contended in response that there were two answers to these submissions – there was, on the issue of lawfulness, an issue estoppel which barred the Territory’s submission and, in any event, the inevitable consequences of the findings I had made, in the course of making the orders I made, led to the relevant conclusions.
Issue estoppel
Issue estoppel is a doctrine that is designed to give proper finality to litigation. It has a wider application than the related doctrine of res judicata. In relation to these doctrines, Dixon J explained in Blair v Curran (1939) 62 CLR 464 at 531-2:
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-stoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J in R v Inhabitants of the Township of Hartington Middle Quarter [(1855) 4 E & B 780 at p 794 [119ER 288 at p 293]], the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.
See also in the same decision per Starke J at 510.
Mr Tierney referred me to two further authorities. They did not, however, seem to me to advance his argument.
The first, Radmanovich v Nedeljkovic [2002] NSWSC 212, concerned the extent to which a court having, in a decision, reserved liberty to apply, could make further orders after the formal entry of final judgment. The Court held, at [8], that such liberty “does not enable a judge after a final order to completely review it”; the court’s power was “limited to the working out of the order that has been made”, but could not “adjudicate on any question which it was not necessary to determine at the date of the final order”. His Honour said that there were three exceptions, two of which were clearly identified; the third was not so clearly identified but may be divined from what was said.
None of this, however, is relevant to these proceedings as there was no liberty reserved to any of the parties in Lewis (No 1) to apply. The only matter that could possibly have been relevant is that his Honour held at [7]:
There is power in a separate suit for any judge of the court to make a declaratory order as to what a previous order of the court means, but in doing that the court construes it just like any other document. It does not delve into the subjective intention of the judge pronouncing the order; see eg Ex parte Herman; Re Mathieson (1960) 78 WN (NSW) 6.
In this case, however, there was no obscurity in the order I had made that needed to be construed or subject to a separate declaration. This power could not permit me, in these (separate) proceedings, to declare that I had really meant to make orders that the Board’s decision was affected by jurisdictional error or was a nullity for all purposes. That, as I shall later show, is the effect of what I held, a conclusion to which Foster J also came in Lewis (No 2), as I note later (at [160]), but such declaration would go beyond what was allowable.
In any event, it does not seem to me that any of this is relevant to the doctrine of issue estoppel or its application to this case.
The second decision was Minister for Immigration and Multicultural and Indigenous Affairs v Hamdan [2005] FCAFC 113; 143 FCR 398. That decision concerned the circumstances under which legal professional privilege will attach to the communication to a legal practitioner by a client of an objective fact, namely, in that case, the client’s mobile telephone number.
Though an important decision in the fraught area of the bounds of legal professional privilege where a client of the lawyer may fail to comply with a court order or other obligations, it says nothing about issue estoppel.
The case concerned an asylum seeker who had been released from detention pending the determination of his application about whether he was to be removed from Australia. He was released on certain conditions, included in an order made by Mansfield J, called in the reasons for judgment “the Court Attendance Order”, that he attend court when given reasonable notice to do so.
A decision of the High Court rendered the client’s application hopeless and the case was relisted by the Court. The client telephoned his solicitor and gave her his mobile telephone number in order that she may give him legal advice but on condition of strict confidentiality. He did not attend at Court as required. The Minister sought the telephone number from the solicitor.
The Court, after considering a number of relevant High Court decisions, held that the mobile telephone number was given in a communication that was privileged and was not to be released. There was no consideration of or reference to issue estoppel.
The only conceivable relevance of that decision to this case was in an observation of the Court, in response to the Minister’s submission as to the “purpose” of the Court Attendance Order, namely “that attendance pursuant to the [Court Attendance Order] would inevitably have led to detention (as the client knew)”. The Court’s observation at 407; [44], was as follows:
We reject the contention of the Minister that it would have been appropriate for his Honour to look, not to the actual terms of the Court Attendance Order, but rather to ‘the very purpose the court order intended to facilitate’ (see [19]). The meaning of the Court Attendance Order is clear. It is not in the circumstances open to be construed by reference to the history of the proceeding before Mansfield J or other extrinsic material … It is to be assumed that the purposes that the Court Attendance Order was intended to effect was compliance with its terms. There is no legitimate scope for speculation as to what motivated Mansfield J to make the Court Attendance Order.
This, however, seems to support the Territory’s case, namely that it is not for the court to construe a court order by investigating the motivation of the judge making the order or of the purpose it was intended to achieve.
I have no doubt, however, that the doctrine of issue estoppel would extend in this case to, at the very least, the finding that I had made that the Board had failed to accord natural justice to Mr Lewis and that, therefore, its decision was of no effect.
I did not find expressly, however, that the decision was a nullity for all purposes nor that it had no effect prior to the date on which I set it aside.
These issues remained to be resolved. They were real issues in these proceedings and I address them below. I do not accept, however, that the Territory was estopped from raising them, for, while the invalidity of the Board’s decision was clearly decided in Lewis (No 1), it cannot be said that the full implications of that, namely the extent of the invalidity, especially in relation to any operation of the Board’s decision prior to it being set aside, had been decided.
Thus, the doctrine of issue estoppel did not operate in the way that Mr Tierney submitted.
There was a further problem, which, however, was not addressed in the written or oral submissions of Mr Lewis. The parties were different in the two proceedings. In Lewis (No 1) the defendants were the “Chief Executive of the Department of Justice and Community Safety” and the “Sentence Administration Board”. In these proceedings, the defendant was the “Australian Capital Territory”. All three were, however, represented in the respective proceedings by the ACT Government Solicitor.
It may be accepted that the Chief Executive is a servant and officer of the Territory and that the Board is an agency established without legal personality as a Committee to carry out statutory functions of the Territory. For the doctrine of issue estoppel, the relevant parties must be identical in each case or the privies of the parties. That is to say, there must be a privity between the party in the concluded action and the action in which the estoppel is raised. Privity is said to arise from blood, title or interest: Ramsay v Pigram (1968) 118 CLR 271 at 279.
In this case, the only privity that could arise is from interest.
In Ramsay v Pigram, it was held that neither the State Government nor the Police Department were privies of a police constable involved in earlier proceedings. Indeed, Windeyer J went further to say at 290 that joint tortfeasors are not privies nor, it would seem, were masters and servants.
Nevertheless, the Territory, very properly in my view as a model litigant, accepted that the Board’s decision had been set aside and held to be invalid. That issue did not have to be re-litigated. The only issue was the effect, if any, of the Board’s decision before it was set aside. It was not subject to an estoppel barring the Territory from litigating them in these proceedings.
Was the decision of the Board a nullity and void ab initio?
The answer to this question, on which depends the validity of acts done in reliance on the Board’s decision before it was set aside, is dependent on the nature of this Court’s finding that the Board’s decision was invalid.
There is no doubt that judicial review, other than by appeal, is a means of supervision of an inferior court or a tribunal. Such review may be made by prerogative order (the prerogative writs having been abolished by r 3553 of the Court Procedures Rules) such as orders in the nature of certiorari, mandamus and prohibition: r 3554, or by review by means of an order in the nature of habeas corpus (see r 3503 and J (by his litigation guardian Vardanega) v Australian Capital Territory [2009] ACTSC 170; 172 ACTR 1) or by statutory judicial review under, for example, the Administrative Decisions (Judicial Review) Act 1989 (ACT).
A distinction in this context has been drawn by the High Court in Craig v South Australia (1995) 184 CLR 163 at 176-80. On the one hand, there are inferior courts, which have jurisdiction to decide questions of law and questions of fact which are involved in the matters which it has jurisdiction to determine, errors in which will not ordinarily constitute jurisdictional error, though such courts may still commit jurisdictional errors. On the other hand, there are tribunals, which are not part of a hierarchical legal system entrusted with the administration of justice under the Commonwealth and State Constitutions, and which may fall into jurisdictional error by the decisions they make and the manner of making them.
The significance of the identification of a decisional error as a jurisdictional error is that a decision made as a result is no decision at all: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at 614-5; [51]; 646-7; [152]. Such a decision is regarded as having no legal effect at all, subject to the reservation referred to below (at [128]). Such decisions are unlike the decisions of a superior court, for instance, where a decision, even beyond jurisdiction, has legal effect until set aside: New South Wales v Kable [2013] HCA 26; 252 CLR 118. The same is not true, however, for inferior courts where a decision that the inferior court makes which is beyond its jurisdiction is null and void: Pelechowski v Registrar, Court of Appeal (NSW) [1997] HCA 19; 198 CLR 435 at 445; [22]; 456-7; [71].
The Territory relied, however, on the decision in Jadwan v Secretary of Department of Health and Aged Care [2003] FCAFC 288; 145 FCR 1 at 16; [42], where it was pointed out that a decision affected by jurisdictional error, even of a tribunal, will not universally be devoid of consequences; the legal and factual consequences, if any, will depend on the particular statute.
Nevertheless, the authorities do maintain the difference in what is regarded as a jurisdictional error when error is made by an inferior court and by a tribunal because of these consequences.
There is no doubt that, ordinarily, for a tribunal to fail to accord procedural fairness to a party before it is to commit a jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at 508; [83]. It follows, then, that a tribunal in the course of deciding a matter before it and which fails to accord procedural fairness to a party, has not made a decision at all.
In Lewis (No 1), I found that the Board had not accorded Mr Lewis procedural fairness. Thus, it was submitted by Mr Lewis that it had not made a decision at all. The cancellation of the periodic detention order was invalid and of no effect as was the decision to order that Mr Lewis be placed in the custody of the Chief Executive. It followed, so the submission ran, that the consequent imprisonment was unlawful.
The Territory contested these submissions. In the first place, it submitted that the order was not invalid upon its making but only when it was set aside. In any event, it further submitted, the detention was authorised by the original sentence imposed by Magistrate Fryar which was valid and had not been set aside.
Unless one or other of these arguments is sound, then it seems to me that the challenged decision of the Board was unlawful and the imprisonment of Mr Lewis was thus itself unlawful.
It is convenient to deal with the questions in the reverse order.
Did the original sentence authorise the subsequent imprisonment of Mr Lewis?
At a very general level, the obvious answer to this question is in the affirmative; Mr Lewis was sentenced to imprisonment for 12 months.
The order of the Court was as follows:
1. STEVEN JAMES LEWIS be sentenced to a total term of imprisonment of 12 months the sentence starts on 24 January 2008, ends on 23 January 2009 and is to be served as periodic detention.
2. The periodic detention period starts on 25 January 2008.
3. The offender is to first report for periodic detention at Symonston Periodic Detention Centre, Mugga Lane, Red Hill ACT on 25 January 2008 at 7 pm.
A periodic detention order is a sentence of imprisonment: R v Creighton [2011] ACTCA 13 at [47].
The Territory, however, relied on the analysis of the sentence provided for in Jacka v Australian Capital Territory. That was a decision on appeal from a finding I had made when dismissing a challenge by Mitchell Jacka to the cancellation of the periodic detention order made when he was sentenced to imprisonment. It was a similar challenge to that made by Mr Lewis; indeed, both challenges were heard together. I dismissed that challenge by Mr Jacka because there was no breach of natural justice and I rejected the other challenges for the same reasons that I had rejected when considering those made by Mr Lewis: Jacka v Australian Capital Territory [2013] ACTSC 199.
In the Court of Appeal decision of Jacka v Australian Capital Territory, Gilmour J, with whom Walmsley AJ agreed and with whom Penfold J generally agreed, held (at 216; [61]) that:
[t]he legislative scheme involved here empowers a sentencing court to set, as part of the sentencing order, a period to be served by periodic detention.
(Emphasis in original)
There were, in the case of Mr Jacka, two sentences of imprisonment in each case to be served wholly by periodic detention.
His Honour continued (at 218; [74], [76]):
The setting by the court, in each case, pursuant to s 11(2) of the [Crimes (Sentencing) Act 2005 (ACT)], of the whole of the period of each of the sentences of imprisonment to be served by periodic detention in the orders sentencing the offender to imprisonment is not, in either case, a separate or distinct order for imprisonment. Rather it constitutes in each case the order of the court as to the manner in which each sentence of imprisonment is to be served.
…
Each order carried with it the force of the statutory regime under the Sentence Act and the Sentence Administration Act in respect to offenders sentenced to imprisonment but to be served by periodic detention.
His Honour then referred to the powers of the Board, in particular, the power to cancel the periodic detention order, finding (at 219; [78]):
The powers thus exercisable by the board, and exercised in the case of the appellant, did not constitute a re-sentencing. Rather, they are powers of an administrative character which give effect to the sentence imposed by the magistrate.
His Honour adopted my characterisation of the effect of the order by the Board cancelling the periodic detention order by reference to what I had said in Lewis (No 1), his Honour saying (at 219; [81]):
As the primary judge correctly explained in Lewis at [278]:
[278] … [T]he cancellation does not change the order of the Court. The order is for imprisonment. It sets a period of periodic detention; that involves and permits a regime which entitles the offender to serve the period of imprisonment in a particular way but only so long as he or she complies with the conditions which he or she undertook to obey.
This was further amplified by Penfold J in her Honour’s additional remarks as follows (at 210; [9]-[10]):
There is a clear legislative intention that a judicial officer who includes a periodic detention order in a sentence not only adopts the consequences of that order as part of his or her sentencing disposition but also points out to the offender those consequences, including the liabilities of the offender in the event that he or she does not comply with the periodic detention order.
In my view, this further undermines the proposition that in cancelling a periodic detention order in accordance with the relevant legislation, the Board is in any way interfering with the contents of, rather than simply implementing, the rights and liabilities determined in the exercise of judicial power by the judicial officer concerned.
Finally, Gilmour J pointed out the overriding liability of Mr Jacka (at 219; [85]):
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.
In summary, the Territory’s submission was, relying on this latter characterisation of the sentence, that Mr Lewis was subject to a valid sentence of the Magistrates Court which had not been subject to any appeal or review and not set aside or varied, making him “liable to the sentence of full-time imprisonment”.
This may be accepted. The Territory then submitted that the sentence was constituted by two “charters”: one of which was constituted by the finding of guilt and the sentence of imprisonment and a separate charter which was constituted by the periodic detention obligations. The controversy before the Board, it was submitted, was a controversy about the periodic detention obligations, which controversy was “legally, factually and temporally separate from the sentence”.
While I do not necessarily embrace the “charter” characterisation, for its content is rather vague, I accept that there was an identifiable distinction between the terms of the sentence of imprisonment and the implementation of it by virtue of the periodic detention order which imposed obligations on Mr Lewis and duties on officers of ACT Corrective Services to monitor and administer those obligations. The Board, too, had a statutory role in the administration of the periodic detention obligations.
To separate these issues too clearly, however, is to ignore the inseparable relationship between them as articulated by Penfold J in the extract from her reasons in the Court of Appeal in Jacka v Australian Capital Territory above (at [144]).
While the order of Magistrate Fryar would be sufficient to justify Mr Lewis serving 12 months in full-time custody, this would only be so if the periodic detention order was cancelled. Until it was cancelled, as I said in a passage adopted by the Court of Appeal and cited above (at [143]), Mr Lewis was entitled to be at liberty between 4:30pm on each Sunday and 7:00pm the following Friday: s 52 of the Sentence Administration Act. During this time, he was taken to be serving the imprisonment imposed on him, even though not in custody: s 41A of the Sentence Administration Act.
To put it bluntly, despite the sentence of 12 months imprisonment, Mr Lewis would, without more, be at liberty and relatively immune from restrictions effected by ACT Corrective Services for the Territory between those times. That is to say, without the cancellation of the periodic detention order, and without other lawful interference with his liberty (such as arrest for another offence, a custodial sentence for another offence or the like), it would be unlawful for him to be taken into custody solely on the basis that Magistrate Fryar had sentenced him to 12 months imprisonment. Nothing in the Court of Appeal decision in Jacka v Australian Capital Territory suggests or holds to the contrary.
Indeed, the Sentence Administration Act makes the distinction clear. As noted above, under s 41A, the performance of a detention period (that is from 7:00pm on Friday to 4:30pm on Sunday) is taken to be service of 7 days of full-time custody; such performance under the Act is constituted by reporting to the place of detention and perform in custody activities or work there (s 49) and during other times, at liberty, complying with any applicable obligations (s 42), such as not committing any other offences, seeking approval for any change in his contact details and complying with directions of the Director-General given under the Corrections Management Act 2007 (ACT): s 43 of the Sentence Administration Act. While at liberty during the week, he is, however, not subject to searches such as are able to be required under Pt 9.4 of the Corrections Management Act, and may during these periods work, drink alcohol, drive a car and so on without restriction.
As a consequence, the authority of the sentence does not extend to detaining Mr Lewis in full-time custody other than from 7:00pm on Friday to 4:30pm the following Sunday unless the periodic detention order has been cancelled.
(footnotes omitted)
Despite this, the question must be asked as to whether the reasoning and basis for the decision in Baigent’s Case is applicable to the Human Rights Act. In undertaking the task of answering that question, it is important to bear in mind the caution expressed by Lord Bingham of Cornhill in Sheldrake v Director of Public Prosecutions [2005] 1 AC 264 at 305; [33], and which French CJ in Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 at 38; [19] noted that it was appropriate to heed, namely that caution must be exercised “in considering different enactments decided under different constitutional arrangements”. I will do so.
There are some differences between the two Acts that need to be noted. There is, in the New Zealand Bill of Rights Act, no equivalent provisions to ss 18(7) and 23 of the Human Rights Act. It also has no provisions for remedies at all such as the provision for a Declaration of Incompatibility or the equivalent to the remedial provisions in Pt 5A of the Human Rights Act.
Secondly, the New Zealand Bill of Rights Act has a particularly special place in the constitution arrangements of New Zealand.
Thus, in R v Wharemu [2001] 1 NZLR 655 at 656; [1], Thomas J described it as “a critical document in the constitutional framework of this country”. Of course, New Zealand has no written constitution and the New Zealand Bill of Rights Act is neither a constitution nor entrenched.
In Attorney-General v Chapman at 481; [25], Elias CJ, with whom Anderson J agreed, referred to it as “constitutional legislation which is intended to permeate New Zealand law” (footnotes omitted).
There have been moderating views. In the important decision of Minister of Transport v Noort, a number of members of the Court remarked that New Zealand had no constitution and the New Zealand Bill of Rights Act was not such nor was it entrenched. As Richardson J said at 277 of these characteristics:
It is not supreme law in that sense. It does not override all other legislation. Nevertheless in interpreting and applying the Act it is important to consider the nature and subject-matter and special character of the legislation.
Similarly, in the same case, Hardie Boys J said at 286:
While not a constitutional document, it is nonetheless an affirmation and a means of promoting principles which are fundamental to every constitutional instrument. Each of its provisions should be construed and applied with that in mind.
Further, Gault J said at 292:
The fundamental rights affirmed in the Bill of Rights Act are to be given full effect and are not to be narrowly construed. Its provisions are to be construed to ensure its objects of protecting and promoting human rights and fundamental freedoms. It is a statute, not an entrenched constitutional document, but it is couched in broad terms requiring interpretation appropriate to those objects. Its terms, in large measure, have been drawn from the Canadian Charter of Rights and Freedoms so that Canadian decisions can be expected to assist in interpretation so long as there is borne in mind the different status enjoyed by the Charter.
Nevertheless, the theme of the importance and centrality of the New Zealand Bill of Rights Act was re-affirmed even in Baigent’s Case where Cooke P noted at 676 that “the rights and freedoms … having been affirmed as part of the fabric of New Zealand law”. Casey J at 690 agreed with the submission of the appellant’s counsel’s description of the Act’s “importance and special character”.
This is not the position of the Human Rights Act. The Territory has a written constitution, the Australian Capital Territory (Self-Government) Act, though it cannot be amended by the legislature or people of the Territory. The Human Rights Act is not part of it and while, of course, a significant enactment, cannot be said to have the kind of special status that the New Zealand Bill of Rights Act has in New Zealand as described by the judges in that jurisdiction. In this, I do not intend to diminish or minimise its importance, but that arises more significantly from its content and operation than its status.
This difference may also be seen in the long title to the Human Rights Act which does not use the word “affirm”, which appears in the long title to the New Zealand Bill of Rights Act and expressly in s 2. This is a word that features prominently and frequently in the reasoning of New Zealand’s judges in human rights matters, not only in Baigent’s Case but in other relevant New Zealand decisions.
The word does not appear in the Human Rights Act. The long title uses the word “respect” which, while not dissimilar to “affirm”, is not the same and is somewhat weaker and there is no equivalent to s 2 of the New Zealand Bill of Rights Act which statutorily enacts the affirming of the rights. Both Acts do use the words, “protect and promote” in the long title, on which Cooke P relied in Baigent’s Case to show the need for proper vindication following breaches, leading to the making of a public law remedy.
By itself, this difference would not justify a different approach by this Court, but it is a factor which, in my view, can be taken into account.
More significant is the absence of the commitment in the long title of the Human Rights Act of the affirmation in the New Zealand Bill of Rights Act of “New Zealand’s Commitment to the International Covenant on Civil and Political Rights”.
This is significant for two reasons. In the first place, it references the ICCPR and that includes Article 2 which is set out above (at [445]). In particular, this Article includes an obligation to provide effective remedies and this has been relied on by some judges as a basis for the making of a public law remedy for breaches of the Act. See, for example, what Hardie Boys J said in Baigent’s Case at 699.
This is also significant because New Zealand is a State Party to the ICCPR and this brings obligations on it when, as in part, at least, the making of the New Zealand Bill of Rights Act enacts the ICCPR into domestic law.
This is in contrast to the Human Rights Act. It does not have such an affirmation in the long title. The Territory is, of course, not a State Party to the ICCPR and, even though the rights set out in it are “primarily” drawn from the Covenant (Explanatory Statement for the Human Rights Bill 2003 (ACT) at p 3), it is not bound when making such legislation to give full effect to the whole of the ICCPR.
Indeed, this is further relevant because the Explanatory Statement, at p 4, expressly provided:
The Bill does not incorporate Article 2 of the Covenant because the Bill is not intended to create a new right to a new remedy for an alleged violation of a Part 3 right.
This is significant contraindication to the requirement seen in the New Zealand law to the making of a public law remedy for enforcement of the rights in the Human Rights Act.
Further, the structure of the Human Rights Act itself is relevant. While the New Zealand courts found that the absence of a remedial provision (even notwithstanding that it had been proposed) was no bar to the courts making a public law remedy, the Human Rights Act did provide remedies.
Initially, it provided only a Declaration of Incompatibility, a remedy which was not to be found in the New Zealand Bill of Rights Act. The inclusion of a form of remedy and the absence of others is a relevant consideration in construing the statute: R v Zuber [2010] ACTSC 107; 175 ACTR 1 at 12; [76]-[79].
It is accepted that the New Zealand Bill of Rights Act had similar provisions to the Human Rights Act relating to the requirement to interpret acts consistently with human rights (s 6, cf s 30 of the Human Rights Act) and for the Attorney-General to provide a statement as to the inconsistency with human rights of any Bill introduced to the legislature (s 7, cf s 37 of the Human Rights Act). As to the latter requirement, the New Zealand Attorney-General has only to bring to the attention of the legislature “any provision … that appears to be inconsistent” whereas the Territory Attorney-General must state whether in the Attorney’s opinion the Bill “is consistent with human rights” as well as identifying any inconsistencies.
Most significantly, the Human Rights Act was amended after a review of its provisions by, inter alia, the introduction of Pt 5A. This imposed specific obligations on public authorities, as defined, to act consistently with human rights. This rather re-inforces the view that, with the interpretative provision, compatibility statement on Bills and the Declaration of Incompatibility, the Act was originally directed towards legislation.
The 2008 amendments introduced s 40B into the Human Rights Act which required, with limited statutory exception, public authorities to act in a way compatible with human rights and s 40C which made provision for victims of breaches of the human rights enumerated in the Act to have a remedy, but not damages. This is consistent with the absence of such remedies in the unamended Act. While somewhat controversial, there is some support, to be applied cautiously, in the approach of relying in this way on the later amendment to construe legislation; see what Latham CJ and Dixon J said in Grain Elevators Board (Vic) v Dunmunkle Shire (1946) 73 CLR 70 at 77, 86.
It is relevant, too, that the Territory has no equivalent constraint on the award of damages in tort claims against the Crown as provided for in the New Zealand Crown Proceedings Act. That is a significant part of the context for the New Zealand approach and, as noted above (at [490] 11), was relied on by a number of judges in support of the existence of the public law remedy.
As to the extrinsic materials, it is clear to me that, with one exception, all the extrinsic material available point directly away from there being a free-standing public law remedy for breaches of the rights set out in Pt 3 of the Human Rights Act. There is no statement of the kind made by the New Zealand Prime Minister when introducing the New Zealand Bill nor that in the Explanatory Note, to which I have referred above (at [490] 4). Indeed, all such statements are quite to the contrary.
The only support from the extrinsic material to a free-standing public law remedy appears to be the Note to s 40C(5) of the Human Rights Act. This seems to me to be too weak a reed to weave into a remedy as contended for by Mr Tierney. For the reasons I have set out above, the construction of s 18(7) as creating a free-standing remedy is, if so construed, based on a category mistake.
Finally, it is appropriate to discuss briefly the maxim ubi jus ibi remedium – “One of the best known Latin maxims”: Dietrich v The Queen (1992) 177 CLR 292 at 356 per Toohey J. The Latin may be translated as “where there is a right, there is a remedy”. It was invoked by a number of the judges in Baigent’s Case in support of the existence of a public law remedy.
The maxim was applied in Australia in Royal Insurance Co Ltd v Mylius (1926) 38 CLR 477, to find a remedy for an insured against his insurer to require the insurer to rebuild damaged buildings so far as the insurance money would go instead of paying out the mortgagees of the property after they had realised their security. The Court held (at 497) that a declaration of the right of Mr Mylius to have the buildings rebuilt was sufficient with liberty to apply so that if the insurer acted contrary to it, “the Court on proper application, and, on proper notice, may enforce it”.
The Territory submitted that the maxim did not apply here because there was no identification, with the exception of the duty, the right and the absence of a remedy, to “all of the other elements of a cause of action are prescribed by the statute or identifiable within the statutory scheme”. No authority was cited for this proposition. By reference to a comparison with Pt 5A of the Human Rights Act, the Territory pointed out that there was no identification of “the proper respondent … the forum, clarifying the relief that is available in superior courts, inferior courts and tribunals”. I have been unable to locate any authoritative support for such requirements. Indeed, the forum and relief were not specified in Royal Insurance Co Ltd v Mylius at all; the Court speculated on various possible remedies.
In Banque Keyser Ullmann SA v Skandia (UK) Insurance Co Ltd [1990] 1 QB 665 at 776, Slade LS said:
However, the principle ‘ubi jus ibi remedium’ cannot, in our judgment, by itself justify a decision to give the remedy of damages in a novel situation not covered by previous authority unless this is preceded by an analysis of the origin and nature of the right in question. The question whether or not the remedy of damages is available may well depend on the nature of the right and of the corresponding duty of the other party.
It cannot fairly be said that the judges in Baigent’s Case had not undertaken such an analysis.
There is a useful and comprehensive consideration of the maxim in R H Kerley, Brooms Legal Maxims (Sweet & Maxwell, 10th ed, 1939) at 118-136. There, at 133-5, consideration is given to its application in relation to breaches of a statute. Three classes of cases are identified, none presently relevant.
The learned author then says at 134-5:
With regard to cases of statutory duty not falling within these classes, no general rule can be laid down upon the question whether a person who suffers damage from the breach of a statutory duty can maintain an action in respect of such damage: the question must be decided in each case upon the language and object of the particular statute. It has been held, however, that where a statute creates a duty with the object of preventing a particular mischief, a person who suffers a totally different mischief from a breach of that duty cannot maintain an action therefore; and it has been laid down, with regard to statutory duties, that for mere nonfeasance no action lies except in the case of a duty owed to the plaintiff as well as to the State.
Prima facie a person injured by breach of a statutory duty imposed for his protection has a right of action unless, on consideration of the whole Act, it appears that no such right was intended to be given.
(footnotes omitted)
The last paragraph is, in fact, a direct (attributed in a footnote) quote from what Greer LJ said in Monk v Warby [1935] 1 KB 75 at 81.
This is the first basis on which I find that the maxim should not be applied. On my analysis of the Human Rights Act as a whole, including, in this case, extrinsic material permissible for working out the meaning of the Act, I do not consider it can be construed as providing for the public law remedy suggested.
In the event that this is too wide a conclusion, it seems to me that there is no basis for finding a remedy on the basis of this maxim for a breach of s 18(1) or (2) of the Human Rights Act. There is a remedy – the tort of false imprisonment provides one. There is, in this case, no basis for the finding of the required pre-condition to finding such a remedy exists or should be implied, namely that there is no remedy for the right.
Again, should there be a residual area of operation, namely that a breach of the right to be arbitrarily detained, being wider that the requirement for which the tort of false imprisonment is a remedy, namely that the imprisonment be unlawful, so that this breach is not so remediable, then that does not apply in this case for there is no doubt that the imprisonment of Mr Lewis was unlawful.
Accordingly, I am satisfied that there is no public law remedy, especially compensation by vindicatory damages, available under the Human Rights Act or, at the very least, for a breach of the rights set out in s 18(1) and (2) and, in particular, the breaches of which I have found that Mr Lewis was a victim.
Public Law Damages
If I am wrong and there is such a remedy, then I would still only award Mr Lewis nominal damages.
I accept that, as Lord Kerr of Tonaghmore JSC said in R (Lumba) v Secretary of the Home Department at 324; [253]:
it is surely right that the actual impact on the individual who has been falsely imprisoned (or perhaps more importantly, the impact that could have been avoided) should feature prominently in the assessment of the appropriate amount of compensation.
His Lordship said this in the context where nominal damages were in contemplation. As his Lordship had earlier said in the same paragraph:
On the question whether the award of nominal damages or some other measure of compensation is required in false imprisonment claims, I believe that a distinction is clearly merited between those cases where it is plain that the detainees would have been released and those where it can be shown that they would have been lawfully detained, had the correct procedures been followed.
Nevertheless, the reasons on which I have relied to find that nominal damages only were appropriate for the tort of false imprisonment also apply here. I rely on them.
Further, so far as any public law damages were concerned, it is relevant that the total imprisonment suffered by Mr Lewis did not extend beyond that to which he was sentenced by the Magistrates Court.
That is to say, he was sentenced to 52 periods of periodic detention, that is effectively 104 days of actual deprivation of liberty. By the time that the Board cancelled the periodic detention order to which Mr Lewis had been sentenced, he had served 22 days of detention.
He was further detained for 82 days. Together, these amount to 104 days of his liberty of which he was deprived in total. That equates to his full sentence of imprisonment, if served by periodic detention. While the procedure was flawed, the deprivation of his liberty was not beyond that which the lawful sentence imposed. Indeed, by the failure of the Territory to seek a stay of his sentence when he was granted bail, perhaps explicable because of what was then believed to have been the law (Quzag v The Queen (No 2) [2015] ACTCA 10), he escaped altogether the statutory consequences of his undoubted breach of the periodic detention order.
It seems to me, in those circumstances, that there is no need for any further vindication than the finding that the imprisonment was unlawful because of the breach by the Board of the rules of natural justice.
Because of my findings on damages, I do not need to discuss the helpful, extensive and detailed consideration of the way in which the public law remedy of compensatory or vindicatory damages should be assessed as set out in cases such as Taunoa v Attorney-General.
The effect of what may be sought to be achieved by such damages would, under the existing law, be achieved by an award of exemplary damages in common law claims against the Territory in appropriate cases to mark the court’s disapproval of reprehensible conduct on the part of its officials and to bring home to them the need to respect human rights and to ensure that such officials are appropriately trained and those who commit breaches are appropriately disciplined: Adams v Kennedy [2000] NSWCA 152; 49 NSWLR 78 at 87; [36].
Costs
Neither party made submissions on costs either in written or oral submissions. In the light of the range of issues to be decided and the possible outcomes, this is unsurprising.
I have, of course, not been privy either to any reasons why a special order as to costs should be made, for example, under any Calderbank offer (Calderbank v Calderbank [1976] Fam 93) or otherwise.
It is appropriate, however, to express a preliminary view on the issue.
Mr Lewis has been successful in his claim to have been falsely imprisoned, but I have found that he is only entitled to nominal damages. I have dismissed his claim for a public law remedy based on the Human Rights Act.
Ordinarily, a party who has been successful in proceedings will be indemnified for their costs of the proceedings. This is often put that “the general rule is that costs follow the event”: VTS IT Pty Ltd v Russell [2015] ACTSC 230 at [46]-[47].
Where a plaintiff was successful in showing that the defendant was liable on the plaintiff’s claim, that was “the event” to determine costs, whether the plaintiff recovered substantial or only nominal damages. As Maule J put it in Beaumont v Greathead (1846) 2 CB 494 at 499; 135 ER 1039 at 1041, “[n]ominal damages are a mere peg on which to hang costs”.
In Connolly v Sunday Times Publishing Co Ltd (1908) 7 CLR 263, however, a jury awarded the appellant 1 shilling in damages for what, if proved, would have been a most serious libel. The trial judge considered that the award of such damages justified the appellant being deprived of his costs. The appellant appealed that decision and the High Court dismissed the appeal.
Since then, the costs to be awarded to a plaintiff who recovers only nominal damages has been the subject of some further consideration, moderating the traditional view and some principles have been developed.
In Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at 98; [70], McHugh J, said:
Apart from anomalous examples in the equity jurisdiction, there are very few, if any, exceptions to the usual order as to costs outside the area of disentitling conduct. The Court may award costs in favour of a defendant where the plaintiff has obtained only nominal damages. However, this practice can be justified on the basis that, in reality, the successful party lost the litigation and the unsuccessful party won.
(footnotes omitted)
This echoed what Devlin J said in Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 at 874, as follows:
No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct. In applying that rule, however, it is necessary to decide whether the plaintiff really has been successful, and I do not think that a plaintiff who recovers nominal damages ought necessarily to be regarded in the ordinary sense of the word as a ‘successful’ plaintiff. In certain cases he may be, eg, where part of the object of the action is to establish a legal right, wholly irrespective of whether any substantial remedy is obtained. To that extent a plaintiff who recovers nominal damages may properly be regarded as a successful plaintiff, but it is necessary to examine the facts of each particular case.
In Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd [2001] WASCA 166 at [9], the Court fleshed out the approach to the issue, observing:
It may be so that an award of only nominal damages will ordinarily be found to disentitle the successful party from an award of costs, at least where the establishment of a legal right is not one of the primary purposes of the proceedings (see Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd[1951] 1 All ER 873 at 874 and Alltrans Express Ltd v CVA Holdings Ltd[1984] 1 WLR 394 at 402 - 404). However, the discretion is wide and there is no invariable rule to that effect. We consider that it is open to a court to depart from the usual practice in a case of this kind in which causes of action of this nature are made out, in which the counterclaim largely mirrored the defence in proceedings (claiming substantial damages) initiated by the appellant, and in which the damages claim failed because a wrong approach was taken to the proof of damages.
This approach was adopted and refined in Motium Pty Ltd v Arrow Electronics Australia Pty Ltd [2011] WASCA 65(S) at [10], as follows:
While each case must depend upon its own facts, where it is not a primary purpose of proceedings simply to establish or vindicate some legal right but the primary purpose is to recover substantial damages, ordinarily an award of nominal damages will not entitle a party to the costs of the proceedings: see Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd[2001] WASCA 166 [9]. In such a case, the party has obtained something of no real use to them and something which, if they had known it was all that was available, they would not have brought proceedings to recover. It would be contrary to modern notions of the efficient and cost-effective use of judicial resources to enable a party to recover its costs for a pyrrhic victory, having substantively failed in the action.
This decision has been cited with approval since then. See, for example, New South Wales v Stevens [2012] NSWCA 415; 82 NSWLR 106 at 111-2; [22], 113; [34]; Romero v Farstad Shipping (Indian Pacific) Pty Ltd (No 3) [2017] FCAFC 102 at 103.
In a careful and comprehensive review of the authorities, Bell J in Actrol Parts Pty Ltd v Coppi (No 3) [2015] VSC 758; 49 VR 573 at 597-600; [90]-[98], identified a number of issues that can be distilled from those authorities.
These include that the party obtaining nominal damages is no longer automatically regarded as a successful party for the purposes of costs and the old rule that nominal damages are “a peg on which to hang costs” no longer applies. The court must engage in a factual inquiry to determine which party has been successful. Often a party who has recovered only nominal damages has lost the case. If, however, the plaintiff’s aim of the suit is to establish a legal right and the plaintiff does so, completely regardless of whether any substantial damages are awarded, the plaintiff may still, to that extent, be regarded as the successful party. The role of nominal damages as vindication is important in some cases. On the other hand, a party who is, in reality, seeking an award of substantial damages, but only recovers nominal damages, will be regarded as the losing party.
See also G Dal Pont, The Law of Costs (LexisNexis Butterworths, 3rd ed, 2013) at 218‑21; [8.39]-[8.41].
My provisional assessment of the position is that Mr Lewis was seeking substantial damages. His counsel proposed an award of $120,000. He was, however, also seeking some vindication and this cannot be discounted.
The issue of vindication was not insignificant, for the Territory took the view, which I did not uphold, that Mr Lewis was not, in reality, falsely imprisoned at all.
The proceedings also concerned to a considerable extent the entitlement to public law remedy of damages and, on this issue, Mr Lewis failed.
One option is for the Court to make costs orders as to each issue on which a party succeeded or failed. I explained that approach to costs in Construction, Forestry, Mining and Energy Union v Commissioner, Australian Federal Police (No 2) [2017] ACTSC 10 at [51]-[54]. In those remarks, I also quoted what I had said in VTS IT Pty Ltd v Russell at [73], [75]-[76], as to the problems with such orders, namely the chilling effect on appropriate but creative arguments that develop the law and the complexity of the costs assessment process.
Thus, in this case, Mr Lewis was pursuing an argument that had some reasonable support in decisions by Gray J and Mossop AsJ, though, in the end, I found that they did not justify his claim.
Balancing these various interests, my provisional view, without hearing from the parties, but in the hope that it will be helpful to them, is that each party should bear their own costs.
Unless the parties provide written submissions on this issue within seven days, that is the order I propose to make.
| I certify that the preceding five hundred and sixty-four [564] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 16 February 2018 |
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