Lewis v Australian Capital Territory (No 8)
[2018] ACTSC 218
•14 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Lewis v Australian Capital Territory (No 8) |
Citation: | [2018] ACTSC 218 |
Submission Dates: | 6 April 2018 |
DecisionDate: | 14 August 2018 |
Before: | Refshauge J |
Decision: | 1. The order made on 6 April 2018 is recalled and set aside. 2. Each party pay his or its own costs of these proceedings. |
Catchwords: | PRACTICE AND PROCEDURE – Costs – Compensation for unlawful imprisonment – where successful party awarded nominal damages – relevance of conduct before proceedings commenced – official error – absence of apology or agreement to mediate PRACTICE AND PROCEDURE – Natural Justice – failure to take into account submissions in reply – need to reconsider proceedings – natural justice required PRACTICE AND PROCEDURE – Judgments and Orders – finality in litigation – power to recall and reconsider order made before being perfected |
Legislation Cited: | Supreme Court Act 1933 (ACT), s 60A Court Procedures Rules 2006 (ACT), rr 1605, 1606, 1721 |
Cases Cited: | Australian Electoral Commission v Johnston [2014] HCA Trans 32 Burrell v The Queen [2008] HCA 34; 238 CLR 218 |
Texts Cited: | Lord Woolf and J Jowell, Judicial Review of Administrative Action (London: Sweet & Maxwell, 5th ed, 1995) |
Parties: | Steven James Lewis (Plaintiff) Australian Capital Territory (Defendant) |
Representation: | Counsel Mr S Tierney (Plaintiff) Mr P Garrisson SC with Ms N Tarbet (Defendant) |
| Solicitors Ken Cush & Associates (Plaintiff) ACT Government Solicitor (Defendant) | |
File Number: | SC 354 of 2009 |
REFSHAUGE J:
These proceedings, commenced on 25 March 2009, concern the imprisonment of the plaintiff, Steven James Lewis, following the purported cancellation of a periodic detention order made when he was sentenced to a term of imprisonment in the Magistrates Court on 24 January 2008.
In the proceedings, Mr Lewis sought damages for false imprisonment and, on 16 February 2018, I upheld his claim that he had been falsely imprisoned but awarded him nominal damages of $1.00 because he would have inevitably been imprisoned had the Sentence Administration Board (‘the Board’), when purportedly cancelling the periodic detention order, not breached the rules of natural justice, to the compliance with which I found he was entitled. See Lewis v Australian Capital Territory [2018] ACTSC 19; 329 FLR 267 (‘Lewis v Australian Capital Territory’) and Lewis v Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory [2013] ACTSC 198; 280 FLR 118.
In Lewis v Australian Capital Territory at [563], I expressed the provisional view that each party should bear his or its own costs. I invited submissions if either party sought a different order.
I received submissions and, on 6 April 2018, confirmed my provisional view and ordered that each party pay his or its own costs: Lewis v Australian Capital Territory (No 7) [2018] ACTSC 86 (‘Lewis v ACT (No 7)’).
In that decision (at [7]), I indicated that, although leave was given to Mr Lewis to make submissions and then submissions in reply to the submissions of the Australian Capital Territory (‘the Territory’), I had not received any such submissions.
That was partly wrong. Mr Lewis had lodged submissions in reply but through an administrative error, they had not been forwarded to me.
When this was brought to my attention and a copy of the submissions provided to me, I recalled the order I had made and directed the Registry not to seal a formal order so that I could reconsider my decision in the light of the further submissions that I should have read and considered before making my final decision.
I refer to the submissions that Mr Lewis made to the submissions of the Territory as ‘the reply submissions’. These are the submissions which I had not read before making my decision in Lewis v ACT (No 7). The relevant content is set out below (at [39]).
Recall and reconsideration
Given that I had announced my decision, it might be considered that this ended my role and brought finality to the proceedings, despite the error in me not having regard to the reply submissions. Finality in litigation is an important value. As the plurality said in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 at 17, [34], “controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances”.
Indeed, the High Court has made it clear that there should be a strict approach to finality, even if, as suggested in Clone Pty Ltd v Players Pty Ltd (In Liq) (Receivers & Managers apptd) [2018] HCA 12 at [69], there is an apparent oddity to some consequences where correctible error has been made but cannot be corrected because of the principle. It is, as the Court there observed, not absurd, for the interest of finality means that not every error can be corrected.
It is, however, important to identify when a judgment or order has the character of finality which attracts the important value to which I have referred. A judgment or order is usually pronounced orally in court as I did in this case, on 6 April 2018. Such a judgment is effective from when it is pronounced as Brereton J pointed out in In the matter of Fewin Pty Ltd [2016] NSWSC 1945 at [9]. See Ex parte Hookey; In the matter of The Risca Coal and Iron Co (1862) 4 De G F & J 456 at 458-9; 45 ER 1261 at 1262. In this Territory that common law rule has been enshrined in statute, namely in r 1605 of the Court Procedures Rules 2006 (ACT).
There is, however, a difference between when a judgment or order is pronounced and when it is entered in the records of the Court. As Lord Esher MR explained in Holtby vHodgson (1889) 24 QBD 103 at 107:
Pronouncing judgment is not entering judgment; something has to be done which will be a record, and so the judgment that the judge has pronounced is the judgment which is to be entered.
The entry of the judgment or order is effected by the sealing of a formal order of judgment. This is done under r 1606 of the Court Procedures Rules 2006 (ACT) and is required in some circumstances. It is this procedure which provides for the method by which a judgment or order is formally entered: Eastman v The Queen [2008] FCAFC 62; 166 FCR 579 at 586-7, [17].
This is significant, for when a judgment or order has been entered into the records of the court or, as is sometimes described, has been “perfected” or “authenticated”, then the principle of finality applies to it: Burrell v The Queen [2008] HCA 34; 238 CLR 218 at 224, [18]-[20].
Prior to that time, however, the court has power to recall the judgment or order and reconsider it. As Hansen J pointed out in McConnell Dowell Middle East LLC v Royal & Sun Alliance Insurance (No 3) [2009] VSC 94; 226 FLR 84 at 88, [16]:
It is well established that a judgment or order can be recalled or revised at any time before authentication, and it is not uncommon for a judgment or orders pronounced in open court to be revised in chambers, with the revised form being authenticated at a later date, but speaking as of the date the order or judgment was originally pronounced in court.
The principle was set out clearly by the UK Court of Appeal in R vCripps; Ex parte Muldoon [1984] 1 QB 686 at 695, as follows:
It is well settled that any judge is fully entitled to reconsider and vary any decision at any time before the order embodying or based upon that decision has been perfected (Re Suffield and Watts; Ex parte Brown (1888) 20 QBD 693 at 697 per Fry LJ), although in some circumstances he may be under an obligation to give the parties a further opportunity to be heard. At that stage no slip rule power is needed. However, once the order has been perfected, the trial judge is functus officio and, in his capacity as the trial judge, has no further power to reconsider or vary his decision whether under the authority of the slip rule or otherwise. The slip rule power is not a power granted to the trial judge as such. It is one of the powers of the court, exercisable by a judge of the court who may or may not be the judge who was in fact the trial judge.
Thus, despite some misgiving about the basis and width of such a principle in Burrell v The Queen at 224, [18]-[19], Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ re-affirmed the principle, saying (at [20]):
Identifying the formal recording of the order of a superior court of record as the point at which that court’s power to reconsider the matter as at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.
This approach has been accepted in this jurisdiction when the Full Court of the Federal Court, on appeal from this Court, said in Jovanovic v The Queen [1999] FCA 1008; 92 FCR 580 at 584, [18]:
In civil cases, before a judgment or order has passed into record, the judge who gave the judgment or made the order may reconsider the decision and withdraw, alter, or vary it: Carroll v Price [1960] VR 651 at 657. After a judgment or order has been formally entered in the records of the Court or, to use the language which is sometimes invoked, ‘authenticated’, the judge is said to be functus officio.
Thus, until the order in a civil case is perfected or authenticated in accordance with r 1606 of the Court Procedures Rules, the trial judge is not functus officio and may recall or reconsider the judgment pronounced, though, in appropriate cases, may be required to give the parties an opportunity to be heard, to accord with the principles of natural justice. The question of when an order is perfected in criminal cases appears to be different, as held in Jovanovic v The Queen.
It is for this reason that I recalled the order and made the direction I gave in chambers, to which I refer above (at [7]), so that this omission in not having regard to the reply submissions made by Mr Lewis could be rectified prior to the costs order becoming final. I notified the parties of what I had done.
Natural justice
Another important value in Australian common law is the principle that persons whose rights or privileges are affected are usually entitled to the benefit of the principles of natural justice. In brief, these principles require that any such decision is made by a fair, independent and impartial decision-maker and that the person has a right to be heard before the decision is made. See Kioa v West (1985) 159 CLR 550 at 582.
These principles are generally regarded as underpinning the conduct of the business of the courts and are said to have a lengthy history. Indeed, Callinan J in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at 45‑6, [140], quoted with approval a passage from Lord Woolf and J Jowell, Judicial Review of Administrative Action (London: Sweet & Maxwell, 5th ed, 1995) at 378-9, which suggested that the principle can be traced back “to the events in the Garden of Eden”. See also R v Clegg (1721) 8 Mod 3 at 4; 88 ER 3 per Fortescue J; R v Chancellor of the University of Cambridge (1723) 1 Str 557 at 567; 93 ER 698 at 704.
It could be said that the English criminal trial did not evidence these principles until the mid-nineteenth century when accused persons were able first to confront prosecution witnesses by cross-examination and then give evidence on their own behalf. Nevertheless, the principles did apply to civil litigation. It is only necessary to refer to the rhetorical question posed by Bayley B in Capel v Child (1832) 2 C & J 558 at 579; 149 ER 235 at 244:
… is it not a common principle in every case which has in itself the character of a judicial proceeding, that the party against whom the judgment is to operate should have an opportunity of being heard?
His Lordship continued:
In our Courts of law, you cannot obtain a judgment against a party, without entering an appearance for him, so that it shall seem as if he had appeared. He either does actually appear, or else you enter an appearance for him, according to the act of Parliament expressly made for that purpose; and made because it is considered an invariable maxim of law, that you cannot proceed against a party without his having the opportunity of being heard, and without his appearing in Court, before a judgment shall be pronounced against him.
More recently, Gaudron J identified the essential character of judicial proceedings in terms which made it clear that this included the principles of natural justice. In Nicholas v The Queen [1998] HCA 9; 193 CLR 173 at 208-9, [74], her Honour said:
In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law. It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.
Accordingly, it is almost invariably necessary for a court to hear what a party reasonably wants to say in respect of the controversy between the parties or at least to give the party an opportunity to be heard before making a decision on the controversy. The actual content of the obligation to give a party the right to be heard is not rigid nor is it the same in all cases.
In this case, Mr Lewis made submissions which I carefully considered: Lewis v ACT (No 7) at [43]-[157]. The Territory responded and, again, I considered their submissions; see, for example, Lewis v ACT (No 7) at [34], [72], [85]‑[100].
As noted above (at [5]-[6]), Mr Lewis, as permitted in the directions I had made, had delivered submissions in reply to the Territory’s submissions. This was not a case where further submissions had been received without the Court’s authority, when the Court is entitled to ignore them: Eastman v Director of Public Prosecutions [2003] HCA 28; 214 CLR 318 at 330, [28]-[31]; 368, [143]. Nevertheless, as noted above (at [6]), I did not receive them and so did not consider them.
Accordingly, principle requires that these submissions should have been considered and the failure to do so deprived Mr Lewis of part of his right to be heard. Whether this breach of the principle of natural justice rendered the decision void or voidable is an interesting question, but not relevant because of the power of the Court to reconsider its decision in appropriate circumstances as outlined above (at [19]).
As a result, I will do so.
Proceedings
Following the intimation from Mr Lewis’ lawyers that they had filed the submissions in reply, I had a search conducted for them, obtained them and read them carefully.
I considered whether either party should be given an opportunity to make any further oral or written submissions. Neither party sought to do so. I concluded that, since each party had already had the opportunity to make the submissions that they wished to make on the question of costs, it was neither necessary nor desirable to request further submissions.
Regrettably, because of medical intervention, I was not able to complete these reasons for some time. I apologise to the parties for the delay.
I have been informed that Mr Lewis or his solicitors have sought to challenge Lewis v ACT (No 7) and the procedure I have followed. Mr Lewis is, of course, perfectly entitled to make any such challenge that he wishes to make. It was suggested to me that I could, therefore, refrain from completing these reasons until that challenge had been heard and determined.
Attractive though that suggestion is, I have not accepted it. In my view, until prohibited by court order from proceeding, I am bound to proceed and to complete these reasons and make the appropriate order required by the facts I find and the law. Secondly, if the order in Lewis v ACT (No 7) is set aside then it appears to me that the question of costs for these proceedings will have not been finally determined so that, under s 60A of the Supreme Court Act 1933 (ACT), I am part-heard in the proceedings and I would retain my commission for the purposes of completing the uncompleted part-heard matter.
Thus, even if the order in Lewis v ACT (No 7) is set aside, I may have to complete these reasons and so I have chosen to do so.
The further submissions
It is convenient to set out the substance of the submissions in which Mr Lewis contended in reply to the Territory’s submissions that he should have been awarded the costs of the proceedings.
In the reply submissions, Mr Lewis pointed to the following “salient features” found by me:
(a) the Plaintiff was falsely imprisoned for a period of 82 days;
(b) the Plaintiff’s sentence of imprisonment had expired by 1 May 2009;
(c) Paragraph 343 of the Judgment identifies that the Board did not act despite the mandatory words of s 69(2) of the Sentence Administration Act, when dealing with 6 other alleged failures by the Plaintiff; and
(d) Between 8 July 2008 and 1 May 2009, the Board took no lawful action in respect of the management of the Plaintiff’s sentence, be it to cancel his periodic detention or, for example, to refer him back to the sentencing Court pursuant to Section 82A of the Sentence Administration Act.
The submissions then continued:
3. While it is natural to assume that, once the plaintiff was detained inside the Defendant’s gaol, the detention was authorised by law, as stated in Fernando v Commonwealth (No 5), ‘[t]hat presumption is a natural consequence of our society’s fundamental value of, and belief in, the rule of law and its abhorrence of arbitrary detention or prison’, the Court found that the Plaintiff was falsely imprisoned.
4. Even after 29 March 2009, when the decision of the Board had been challenged, the Defendant never addressed the deficiencies in relation to the Board’s administration of the Plaintiff’s sentence. The Board did nothing before the Plaintiff’s sentence expired.
5. Indeed, it never properly administered the critical aspects of the plaintiff’s periodic detention. The Board never made any valid decision in relation to any alleged breaches by the Plaintiff of his periodic detention.
6. The Board was given modern provisions so that all allegations of breach would promptly be resolved. Instead of acting lawfully, the Defendant maintained a resolute defence of an invalid Board decision. Those contentions are considered in the Judgment in paragraphs 75 to 217. The Board wrongfully ended the plaintiff’s part time imprisonment that allowed him to make a positive contribution to family life and work.
7. Proof of damage is not required in establishing a claim based on a trespassory tort. As the vindicatory dimension to the element of compensation must sound as damage. In the result for $1.00, the defendant, could not rise above the false imprisonment of its citizen.
8. The Defendant did not proffer an apology for its invalid decision. The Defendant actively avoided the resolution avenue of mediation. Such a regular and effective dispute resolution measure would have permitted explanation and discussion of the issues and potentially early resolution.
9. It is in the public interest for the Court to encourage the settlement of litigation and the Defendant’s refusal to mediate, and the result which ensued for the Plaintiff, are powerful factors for the court to consider in favour of awarding costs to the Plaintiff.
10. In Guo v Commonwealth of Australia (No 2), the pursuit of Mr Guo’s claims for false imprisonment gave him something a settlement could not (even though he did not claim, for example, a declaration that the Commonwealth had falsely imprisonment him). Even where the Commonwealth had engaged in settlement negotiations and offered a conditional sum greater than the ultimate verdict, the Court held Mr Guo was entitled to usual costs in pursuing vindication for his false imprisonment.
11. The Plaintiff submits that for the reasons set out above and in his primary submissions, the Court should exercise its discretion to order the Defendant to pay the Plaintiff’s costs of the proceedings as agreed or assessed on a party and party basis in full or in a significant percentage or apportionment which the Court considers appropriate.
Consideration
Mr Lewis, in the reply submissions, raised what I can discern are five matters, some of which repeat matters the subject of the earlier submissions he had made, some without additional matters submitted. I shall deal with each in turn.
(a) Finding that imprisonment was false
The import of the submissions at [3] of the reply submissions seems to be that, since I found that the Board’s decision was rendered void by its failure to accord Mr Lewis an opportunity to be heard before cancelling the periodic detention order, so that he was falsely imprisoned, this finding in itself justified an order for costs.
This is not much different from the earlier submissions about vindication which I dealt with in Lewis v ACT (No 7) at [44]-[74]. No new argument was put to that which I there considered.
If the difference is that the submission is merely that the finding of false imprisonment itself requires an order for costs, then it ignores the well-known principle that the question of costs is always in the discretion of the Court (see r 1721 of the Court Procedures Rules 2006 (ACT)). That Mr Lewis’ right to be at liberty was infringed and that he was awarded some, albeit nominal, damages does not of itself require that an order for costs be necessarily made.
To some extent, the decision in Fernando v Commonwealth of Australia [2010] FCA 753; 188 FCR 188 supports the submission of Mr Lewis. There, Mr Fernando was awarded $1.00 in damages but also his costs. He was, however, also awarded $25,000 as exemplary damages and this further award would have justified the award of costs. While an appeal against the award of exemplary damages was upheld, the award of costs was not the subject of the appeal for reasons that are not apparent in the decision: Fernando v Commonwealth of Australia [2014] FCAFC 181; 231 FCR 251 at 253, [2]. This decision does not assist Mr Lewis as he was not awarded aggravated or exemplary damages.
Similarly, Guo v Commonwealth of Australia (No 2) [2018] FCA 13 is of no assistance to Mr Lewis for, again, the applicant was awarded exemplary damages in addition to nominal damages. I deal with this case further below (at [66]-[70]).
Thus, there is nothing in this submission that justifies any different order than that which I made in Lewis v ACT (No 7).
(b) Failure of the Board to rectify its invalid proceedings
The reply submissions (at [4] to [6]) seem to be making the submission that Mr Lewis should be awarded his costs because neither the Board, nor the Territory, “addressed the deficiencies” of the Board’s administration of the sentence imposed on Mr Lewis.
It seems that the import of this submission is similar to that above (at (a)) and to the issue of vindication, the latter of which I addressed in Lewis v ACT (No 7) (at [44]-[74]). That is to say, it seems that the submission is that, because neither the Board nor the Territory accepted that the Board had acted invalidly and so refused to take steps that would regularise the administration of the sentence imposed on Mr Lewis, he was forced to take these proceedings.
No particulars are given of the steps that the Board could or should have taken and it is not for me to speculate. If, in March 2009, however, when these proceedings were begun, the Board had reconsidered the breaches that Mr Lewis had committed of his periodic detention obligations, that would inevitably have resulted in him spending the weeks representing the uncompleted periods of detention in full-time custody, much longer than the period he actually served. That he was spared that, even though the decision may have been able to be re-made (or rectified) seems to me to be a worse outcome for Mr Lewis.
As it was, though through no action of the Board, he ultimately served the same periods in actual custody as he should have under the original sentence, that is, were the periodic detention order not to have been cancelled, though they would have stretched over the year instead of being all served continuously. He was not deprived of his liberty for any longer period than under the periodic detention order, had it not been cancelled.
In any event, had the Board taken the steps Mr Lewis seems to suggest that it should have taken, that would not have rendered the original decision valid. Thus, Mr Lewis would, even then, have been falsely imprisoned, though his subsequent inevitable imprisonment may have resulted in the same award of damages for the same reasons as I gave in Lewis v Australian Capital Territory. Accordingly, even if the Board had taken some steps to cancel the periodic detention order properly, Mr Lewis would still have had to commence proceedings such as these if he wished to obtain damages for false imprisonment
As I pointed out in Lewis v ACT (No 7) at [114], costs are, other than in exceptional circumstances, not awarded to punish a party for conduct not part of the actual conduct of the proceedings. See the authority there cited.
Indeed, in Australian Electoral Commission v Johnston [2014] HCA Trans 32, Hayne J held that:
…it should be noted that it would not be right to use the power to award costs, or to award costs on a more generous scale in this case, as a means of punishing the AEC or its officers for the official error or errors which occurred
While on a somewhat different point in that case, this principle articulated by his Honour fortifies me in my view that this submission does not justify the order for costs without more.
In my view, this submission does not add new material to that already considered in Lewis v ACT (No 7) nor to justify an order for costs.
(c) Proof of damage is not necessary for trespassory torts
This submission is made in [7] of the reply submissions. That submission may be generally accepted though this refers, of course, to special damages for the deprivation of liberty is a serious matter and a damage in itself: Murray v Ministry of Defence [1988] 1 WLR 692 at 703-4. Indeed, I found that Mr Lewis was falsely imprisoned, and entitled to damages, even though the damages I awarded were nominal.
The assertion that proof of special damage is not required for the tort to be made out is, of course, correct: Watson v Marshall and Cade (1971) 124 CLR 621 at 632. The submission, however, seems to beg the question that I addressed in Lewis v Australian Capital Territory, that the current law did not require that, where the claim that the plaintiff’s right had been breached was upheld but nominal damages were awarded, costs should follow the event. See the summary at Lewis v ACT (No 7) at [20].
Insofar as it ignores the principles I had there identified and assumes that the finding of false imprisonment, without more, justified an order for costs, it adds nothing to the submissions earlier made by Mr Lewis and my consideration of them set out in Lewis v ACT (No 7).
In my view, this submission does not justify a departure from the order I made in that decision.
(d) The Territory did not apologise nor agree to mediation
That the failure of the Territory to apologise justified an order for costs seems to be the submission made in [8] of the reply submissions. Similarly, that paragraph and [9] raises the submission that the Territory’s failure to engage in a mediation of the dispute constituted by these proceedings justified an order for costs.
I have dealt with both of these submissions in Lewis v ACT (No 7). At [114]-[117], I dealt with the asserted failure to apologise and concluded that this did not justify an order for costs in favour of Mr Lewis.
At [75]-[109], I dealt with the asserted failure of the Territory to mediate or otherwise attempt to compromise the proceedings and, again, concluded that this did not justify an order for costs in favour of Mr Lewis.
The reference to the public interest in the resolution of disputes, to which Mr Lewis also referred in [9], is perhaps not directly referred to in Lewis v ACT (No 7), though the court’s encouragement of mediation and compromise, which must be because it is in the public interest, is expressly referred to in [77] of that decision.
I referred at [78] to Ezekiel-Hart v Law Society of the Australian Capital Territory (No 2) [2012] ACTSC 135. In that decision, at [26] and [27], I quoted comments made in curial and extra-curial writings that were clearly intended to support the proposition that the compromise of disputes by means such as mediation is in the public interest.
There is nothing in this submission that requires me to depart from the orders I made in Lewis v ACT (No 7).
(e) The litigation by Qi Guang Guo justifies an order for costs
The reply submissions (at [10]) refers to the decision of Jagot J in Guo v Commonwealth of Australia (No 2) to which I have already referred. This was the decision on costs following the decision of her Honour in Guo v Commonwealth of Australia [2017] FCA 1355 to which I referred in Lewis v Australian Capital Territory at [250], [325], [387] and [389] and which I relevantly followed.
There was, however, a significant difference in that Mr Guo was awarded exemplary damages in addition to nominal damages of $1.00.
In Guo v Commonwealth of Australia (No 2), there was no discussion of whether the award of nominal damages itself justified an order for costs. That was, of course, unnecessary, for the award of exemplary damages would justify such an order.
The real issue in those proceedings was whether an offer made by the Commonwealth to compromise the proceedings would, under the principles established by Calderbank v Calderbank [1976] Fam 93, justify the Court awarding the Commonwealth its costs on an indemnity basis from the date when the offer was not accepted.
None of this is relevant to these proceedings. This submission does not justify any departure from the order I made in Lewis v ACT (No 7).
Disposition
I have dealt with the reply submissions at some length because it must be made clear to Mr Lewis that they have been properly and carefully considered. Were they such as to justify a modification of the order I made in Lewis v ACT (No 7), then I would have made a different order, appropriate to the law and the facts as I found them.
It is important that I not only do that, evidenced by the detailed consideration that I have given the matter, but also because Mr Lewis must be left in no doubt that I did not approach the reply submissions with a preconceived view that I had to justify or maintain the decision I announced in Lewis v ACT (No 7). That would have been unfair and improper.
Having, however, found that, after a careful examination and consideration of the reply submissions, there is no basis for the variation of the order I made in Lewis v ACT (No 7), I will make no variation.
Because, however, I have recalled the order then made so as to deal with the reply submissions, I will formally set aside the earlier order and make the order required by these reasons.
I have not repeated the consideration of the whole of the submissions originally made by me in Lewis v ACT (No 7). For the purposes of making the proper order that I consider should be made as to the costs of these proceedings, I incorporate the reasons set out in Lewis v ACT (No 7) into these reasons.
| I certify that the preceding seventy-five [75] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 15 August 2018 |
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