Monaghan v Australian Capital Territory (No 2)

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Monaghan v Australian Capital Territory (No 2)

Citation:

[2016] ACTSC 352

Hearing Dates:

12 – 14 October 2015

DecisionDate:

30 November 2016

Before:

Mossop AsJ

Decision:

See [261]

Catchwords:

CRIMINAL PROCEDURE – BAIL – Variation of bail conditions – Whether subject of bail is required to sign a further undertaking or notice to make variation of conditions of bail effective – Significance of written undertaking to appear and comply with any conditions – Variation to conditions becomes effective upon an order being made by the Court – Plaintiff did not have to sign a notice of variation

TORTS – Negligence – Failure by Registry staff to provide accurate information to Australian Federal Police about bail conditions – Whether ACT breached a duty of care owed to the plaintiff – Whether damages arising from detention of plaintiff recoverable in cause of action in negligence – Extent to which Civil Law (Wrongs) Act 2002 (ACT), s 35 precludes award of damages arising from detention

HUMAN RIGHTS – Compensation – Human Rights Act 2004 (ACT), s 18(7) – Whether s 18(7) provides freestanding cause of action – Whether plaintiff entitled to compensation for being arrested and detained – Whether plaintiff entitled to compensation greater than awarded in common law claim

Legislation Cited:

Australian Federal Police Act 1979 (Cth), ss 8(1)(a), 8(1A), 64B

Bail Act 1992 (ACT), ss 28, 33, 49, 56A
Bail Amendment Act 2004 (ACT)
Charter of Human Rights and Responsibilities 2006 (Vic), s 39
Civil Law (Wrongs Act) 2002 (ACT), ss 5, 8, 11B, 12, 15, 19, 33, 34, 35, 36, 41, 47, 48, 93, 99, 108, 109, 110, 111, 112, 113, 114
Corrections Management Act 2007 (ACT), ss 24, 25
Human Rights Bill 2003 (ACT)
Human Rights Amendment Bill 2007 (ACT)
Human Rights Act 2004 (ACT), ss, 18, 18(7), 23, 30, 32, 37, 38, 39, 40B, 40C

Legislation Act 2001 (ACT), ss 127, 142, 245, 247, 250

Cases Cited:

Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649

Coyle v State of New South Wales [2006] NSWCA 95
Enever v The King [1905] HCA 3; (1906) 3 CLR 969
Fernando v Commonwealth [2010] FCA 753; (2010) 271 ALR 521
Fernando v Commonwealth [2014] FCAFC 181; (2014) 231 FCR 251
Fok Lai Ying v Governor-in-Council [1997] 3 LRC 101
Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1
Hage-Ali v State of New South Wales [2009] NSWDC 266
Hebditch v Sheppeard; Slaven Motors Pty Ltd (Unreported, Supreme Court of the Australian Capital Territory, Gallop ACJ, Higgins and Ryan JJ, 12 July 1996)
Hook v Cunard SS Co [1953] 1 All ER 1021
Houda v State of New South Wales [2005] NSWSC 1053
Kennedy v Mangos [2001] ACTSC 92
Lamb v Cotogno [1987] HCA 47; 164 CLR 1
Manga v Attorney-General [2002] 2 NZLR 65
Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44
Morro v Australian Capital…

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Details
Case
[2016] ACTSC 352
Decision Date

CaseChat Overview and Summary

Monaghan and the Australian Capital Territory engaged in a legal dispute in the Supreme Court of the Australian Capital Territory. The plaintiff sought damages for negligence and breach of human rights, alleging that the ACT failed to provide accurate information about his bail conditions to the Australian Federal Police, resulting in his unlawful arrest and detention. Additionally, the plaintiff contested the requirement to sign a notice to make a variation of his bail conditions effective. The court was required to determine whether the plaintiff had to sign a notice to make the variation effective, whether the ACT owed a duty of care to the plaintiff, and if damages arising from the detention were recoverable under the Civil Law (Wrongs) Act 2002 (ACT), s 35. The court also had to decide whether s 18(7) of the Human Rights Act 2004 (ACT) provided a freestanding cause of action for compensation and if the plaintiff was entitled to compensation greater than that awarded in the common law claim.

The court held that the variation to the conditions of bail became effective upon the court making an order, and the plaintiff did not have to sign a notice of variation. Regarding the negligence claim, the court found that the ACT did not owe a duty of care to the plaintiff as the police were independent contractors and there was no direct relationship between the ACT and the plaintiff. In relation to damages arising from detention, the court held that the Civil Law (Wrongs) Act 2002 (ACT), s 35 precluded the award of damages for detention. Concerning the human rights claim, the court concluded that s 18(7) of the Human Rights Act 2004 (ACT) did not provide a freestanding cause of action for compensation, and the plaintiff was not entitled to compensation greater than that awarded in the common law claim.

The court dismissed the plaintiff's claims in their entirety, and the plaintiff's appeal to the Court of Appeal was also dismissed. The Court of Appeal found that the primary judge was correct in his assessment of the evidence and that there was no basis for the plaintiff to be awarded damages for negligence, breach of human rights, or compensation under s 18(7) of the Human Rights Act 2004 (ACT). The appeal was dismissed, and the orders of the Supreme Court were upheld.

Orders

Orders of the court

See [261]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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