Monaghan v Australian Capital Territory (No 2)
[2016] ACTSC 352
•30 November 2016
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 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 Zaravinos v New South Wales [2004] NSWCA 320; (2004) 62 NSWLR 58 |
Texts Cited: | Fleming, J, The Law of Torts (3rd ed, The Law Book Co Ltd, 1965) Gans, J, “The Charter’s irremediable remedies provision” (2009) 33(1) Melbourne University Law Review 105 Prosser, W L, “False imprisonment: consciousness of confinement” (1955) 55 Columbia Law Review 847 |
Parties: | Jason Arthur Monaghan (Plaintiff) Australian Capital Territory (Defendant) |
Representation: | Counsel P Tierney (Plaintiff) P Saidi (Defendant) |
| Solicitors Ken Cush & Associates (Plaintiff) ACT Government Solicitor (Defendant) | |
File Number: | SC 77 of 2014 |
MOSSOP AsJ:
Introduction
In March 2011 the plaintiff was on bail in relation to criminal proceedings pending in the Supreme Court. On 24 March 2011 the plaintiff attended the Supreme Court and had his bail conditions varied so as to reduce the frequency with which he had to report to police. After the proceedings were concluded staff at the Registry of the Supreme Court (Registry) told him that he was free to go. Notwithstanding the orders of the Court varying the conditions of his bail, the Registry staff communicated to the Australian Federal Police (AFP) that his bail was continued on the same conditions that were previously in place. Sometime later a staff member within the Registry discovered that the plaintiff’s bail had in fact been varied. The AFP were not notified of that discovery. As a consequence, when the plaintiff failed to report at the frequency required by his unamended bail conditions he was arrested and brought before the Court.
The plaintiff has sued the defendant, the Australian Capital Territory, in negligence, alleging that it breached a duty of care owed to the plaintiff and that his arrest and detention arose from that breach. The plaintiff has also claimed that he is entitled to compensation under s 18(7) of the Human Rights Act 2004 (ACT) (HR Act) for being arrested and detained.
Facts
Original bail conditions
In March 2011 the plaintiff was facing criminal charges in the Supreme Court. What those charges were was not disclosed by the evidence.
On 10 March 2011 the plaintiff signed a document headed “BAIL ACT 1992 NOTICE OF CONTINUANCE OF BAIL”. It included the following:
[Coat of Arms] ACT Magistrates Court & Tribunals
BAIL ACT 1992
NOTICE OF CONTINUANCE OF BAIL
[File and case numbers]
NAME OF ACCUSED PERSON: JASON ARTHUR MONAGHAN DOB [date set out]
ADDRESS OF ACCUSED PERSON: [address set out]
DATE OF UNDERTAKING TO APPEAR: 10 March 2011
TAKE NOTICE that the proceedings in respect of which you gave an undertaking to appear have been adjourned:
To the Supreme Court at Knowles Place Canberra City on Thursday 24 March 2011 at 9:30 AM.
Bail is continued subject to conditions, which are as follows:
…
6.REPORT TO WODEN POLICE STATION, DAILY BETWEEN THE HOURS OF 8 AM AND 8 PM.
…
DATED this 10th day of March 2011.
[Signature]
Court Officer
[Signature]
Accused Person (optional)
TAKE NOTICE: A failure to attend before the court in accordance with this Notice may result in the issue of a warrant for your arrest without further notice to you.
Application to vary bail conditions
The plaintiff’s case was before Refshauge J on 24 March 2011. Ms McMurray appeared for the prosecution and Mr Lalor appeared for Mr Monaghan. The proceedings commenced at 9:48 am. The prosecution requested six weeks to file and serve the indictment, case statement and questionnaire. There was no objection to this from Mr Lalor. As a consequence his Honour required the documents to be filed and served by 5 May 2011 and the accused to file and serve his questionnaire before 12 May 2011. He appointed the second sittings of the Court in 2012, namely, 14 May to 27 July 2012 as the date when the trial would be listed for hearing. The application to vary bail was then dealt with. The transcript records as follows:
HIS HONOUR: … Now, bail?
MR LALOR: Your Honour, currently he’s required to report to the officer in charge of Woden Police Station daily, between the hours of 8 am and 8 pm.
HIS HONOUR: Yes.
MR LALOR: It’s not opposed then we’ll change that to Monday, Wednesday and Friday, your Honour.
Ms MCMURRAY: Yes, if I can just confirm that the accused is also under the supervision of Corrective Services.
HIS HONOUR: Yes, he is. Paragraph 1, and he’s got a surety, yes. Is that opposed?
Ms MCMURRAY: That’s not opposed.
HIS HONOUR: Not opposed. All right, thank you. In relation to his bail I will vary condition 6 to require him to report to Woden police station every Monday, Wednesday and Friday between the hours of 8 am and 8 pm.
The proceedings were adjourned at 9:50 am.
What happened following the adjournment of the proceedings
Two documents appear to have been prepared by his Honour’s associate. The first was a pro forma document relating to criminal directions. That document recorded directions relevant to preparation for the trial, namely, the filing and service of the questionnaire by the prosecution and defendant. There was also the note that his Honour “Appoints the 2nd sittings of 2012”. There is no reference to bail.
Another document headed “Record of proceedings” is what is generally referred to as a bench sheet and records:
HH varies condition 6 of Mr Monaghan’s bail to read:
“Report to Woden Police Station every Monday, Wednesday and Friday between the hours of 8 am and 8 pm”.
There is no direct evidence as to the identity of the person who prepared the documents, when they were prepared or when they were placed on the file.
Following the adjournment of the proceedings steps were taken by Registry staff based on the proposition that the bail had simply been continued without any variation. Exhibit 1 was a two-page document headed “Bail Act 1992 ACT Supreme Court Notice of Continuance of Bail” which provided:
BAIL ACT 1992
ACT SUPREME COURT
NOTICE OF CONTINUANCE OF BAIL
NAME OF ACCUSED PERSON: JASON ARTHUR MONAGHAN (SCC 99/2011)
ADDRESS OF ACCUSED PERSON: [address set out]
DATE OF UNDERTAKING TO APPEAR: to be Advised
TAKE NOTICE that the proceedings in respect of which you gave an undertaking to appear have been adjourned to:
The Supreme Court at Knowles Place Canberra City
CONDITIONS:
Bail Conditions to continue the same as per previous bail attached
Accused Person ..............................
Court Officer ....................................
Dated 24 March 2011
.................................................. [scissors symbol] .............................................
Please acknowledge and return to the Registrar of the
ACT Supreme Court in
(SCC 99/2011)I ......................................... have received a copy of my bail continuance
Signed …...............................
Date …...................................
The second page of the document was the “Notice of Continuance of Bail” described at [4] above.
At 10:50 am the document was sent from the ACT Supreme Court to facsimile numbers identified as “Corrective Services”, “Mag Charge” and “Watchhouse”. Relevantly, I infer that the reference to “Watchhouse” is a reference to a pre-programmed number of a facsimile machine for the AFP at the ACT Watchhouse. The evidence of Mr Sean Maxwell (the AFP officer who arrested the plaintiff on 27 March 2011), which I accept, was that the results of decisions in relation to bail were communicated by the Registry to the ACT Watchhouse. Entries were then made on the AFP computer system and hard copies of the relevant documents were distributed to the police station to which a person subject to bail was required to report.
Admitted into evidence was a file note of Gaeleen Curley dated 28 March 2011. She is described on the document as “Acting Unit Manager/Sheriff”. She was not called to give oral evidence. The file note of Ms Curley describes, to some extent, what happened next. Relevantly, the file note provided:
Jason Monaghan’s matter was listed in the criminal directions list on 24 March 2011. After his matter was heard, he attended the Registry counter to sign his bail. He was waiting for some time as his file had not come up from court. When the file was received, there was no reference to bail on the bench sheet, so Mr Monaghan was advised that his bail was continued and he was free to go.
A little while later when I checked the Registrar’s notes from the directions list, I realised that Mr Monaghan’s bail had been varied – the variation being recorded on separate bench sheet.
I contacted the Aboriginal Legal Service at 11:30 am on 24 March to speak to Monaghan’s solicitor Michael Lalor, however he was unavailable so I left a message with the receptionist for Mr Monaghan to attend the Supreme Court to sign his bail variation.
Mr Monaghan didn’t attend on 24 March 2011 so at 11:24 am on Friday 25 March 2011, I sent an email message to Michael Lalor asking him to contact Mr Monoghan [sic] and advise him to attend the Supreme Court to sign his bail variation.
Mr Monaghan didn’t attend the Registry on Friday and I understand that he was taken into custody over the weekend for breaching his bail.
The file note does not explain what was meant by the reference to “sign his bail” and “sign his bail variation” or identify where any such requirement came from.
The time at which Ms Curley discovered the variation of bail may be inferred from the time of an email which she sent to Mr Lalor, the solicitor who had appeared for Mr Monaghan earlier that day. The email referred to in Ms Curley’s file note was sent at 11:24 am on 25 March 2011. It provided as follows:
Michael
Jason was in the directions list yesterday and his bail was varied. Unfortunately he was incorrectly advised that his bail was continued and he didn’t need to sign anything. When I realised the error I contacted your office and asked that Jason be advised to come in and sign his bail variation but as yet Jason hasn’t come in. Can you let me know if you are able to contact Jason and if possible, get him to come in today.
Thanks
Gaeleen
In summary, the chronology of events was as follows:
(a)Following the conclusion of the hearing on 24 March (9:50 am), after some delay, the file was delivered to Registry staff.
(b)An unidentified staff member examined the file and did not find any bench sheet recording a variation of bail.
(c)Mr Monaghan was told by an unidentified member of the Registry staff that he could go without signing any document. He left.
(d)Paperwork was generated and sent to the AFP (10:50 am) consistent with bail having been continued on the same terms as previously imposed.
(e)Ms Curley checked a Registrar’s notes of the proceedings and realised that the bail variation had been recorded on a separate bench sheet. The evidence does not establish whether that bench sheet was on the file when it was originally delivered to the Registry staff.
(f)Ms Curley telephoned Mr Lalor’s office on 24 March (11:30 am) after making that discovery and, when Mr Monaghan did not return, sent a follow up email to Mr Lalor on 25 March (11:24 am).
Neither party called Ms Curley to give evidence.
As will be apparent from the above, Ms Curley’s file note and her actions on 24 and 25 March 2011 proceeded on the basis that Mr Monaghan was required to “sign his bail variation”. As I will endeavour to explain below, any variation to Mr Monaghan’s bail conditions was not contingent upon him signing any further document. If Ms Curley was operating on the understanding that Mr Monaghan was required to “sign his bail variation” in order to make it effective, there was no explanation in the evidence called or tendered at the hearing as to why, having detected the error, and being aware of the misleading information that was given to the plaintiff that he was free to leave without having signed any further document, she did not take steps to put the AFP on notice of the fact that Refshauge J’s order had not been properly implemented or that the plaintiff would reasonably understand that he was only required to report Monday, Wednesday and Friday. Similarly, if the Registry staff were not of the view that Mr Monaghan was required to “sign his bail variation” there is no explanation of why no steps were taken to correct the erroneous statement, communicated earlier to the AFP, that bail had been continued without variation.
Arrest and detention
AFP records (Exhibit 7) show that at 11:35 am on Sunday, 27 March 2011 Mr Monaghan attended the Woden Police Station. He had not attended the police station on Saturday, 26 March 2011. Mr Maxwell advised Mr Monaghan he was in breach of his bail conditions and he was placed under arrest. The document which is Exhibit 2 indicates that the bail conditions which were being relied upon by the police were those which were dated 10 March 2010, which included a requirement that Mr Monaghan report daily. It is notable that under the bail conditions as varied Mr Monaghan was not required to report on Saturday, 26 March 2011 and hence had not in fact breached the bail conditions as articulated by Refshauge J. It is an oddity that Mr Monaghan was attending the police station on Sunday, 27 March 2011 when, under the bail conditions as varied he was not in fact required to attend until the next day. This oddity was not explained in his oral evidence.
The AFP records also show that shortly after Mr Monaghan’s arrest, while he was located in a holding cell at Woden Police Station, he was yelling and screaming in his cell and the police perceived him to be highly aggressive. Because the police needed to transport him to the ACT Watchhouse they considered that handcuffs were going to be reasonably necessary to safely transport him. They negotiated their way into the cell and placed handcuffs on Mr Monaghan without using physical force. He was transported to the ACT Watchhouse where the handcuffs were removed.
He remained in custody at the Watchhouse on the night of 27 March 2011. He was provided with dinner and breakfast and was given an opportunity to speak to “Aboriginal Legal Aid”. Police records indicate that his stay there was uneventful.
Proceedings before Penfold J
Mr Monaghan was transported from the ACT Watchhouse to the Supreme Court at about 8:30 am on Monday, 28 March 2011. He was brought before Penfold J at about 11:52 am. Mr Lalor appeared on his behalf and Ms Jones appeared for the prosecution. Proceedings concluded at 11:58 am.
The following appears in the transcript of the proceedings:
Her Honour: Right. Thank you Mr Lalor. Now we are short Mr Monaghan but I think he’s probably on his way up. This is the case where there seems to have been an unfortunate glitch in the Supreme Court registry is that---
Mr Lalor: Your Honour, I think Mr Monaghan appeared in the directions this last Thursday and was granted a variation bail to report three times a week.
Her Honour: Yes.
Mr Lalor: He didn’t enter into his new bail undertaking. I had a number of matters in the directions list and I wasn’t able to take him up and make sure he signed his bail. We were notified by the registry that was the case; we tried to make contact with him last week unsuccessfully. Unfortunately I was out of the office on Friday so I couldn’t take a personal hand in the matter. Consequently I believe he is in breach for a failure to report on Sunday. His previous bail condition was to report every day.
…
Her Honour: Well look, I’ve got a note from registry which suggests in fact that it was a mistake in registry that led to that problem. That it wasn’t Mr Monaghan’s problem. Now I think I’m where I should hand that down to you for the two of you to look at while we wait for Mr Monaghan because it---
…
The bench sheet of that appearance records:
HH notes the mistake made by Registry in relation to the breach.
HH orders that no action on breach of bail be taken.
Mr Monaghan to sign the variation of bail made Refshauge J on 24 March 2011.
It should be noted at this stage that both Mr Lalor, in his submissions, and Penfold J proceeded on the assumption that it was essential for Mr Monaghan to “enter into his new bail undertaking” or “sign the variation of bail” in order for the varied conditions to become effective.
On 28 March 2011 Mr Monaghan signed a “Notice of Variation of Bail” recording that condition 6 required him to report to the Woden Police Station every Monday Wednesday, Friday between the hours of 8 am and 8 pm.
The Notice of Variation of Bail was sent by facsimile from the Supreme Court to the ACT Watchhouse on 28 March 2011 at 12:19 pm.
On the afternoon of 28 March 2011 at 2:27 pm Penfold J’s associate forwarded Ms Curley’s file note to Mr Lalor. He forwarded it to two other people, one of whom appears to have been a field officer with the Aboriginal Legal Service, Ms Morrisey. Mr Lalor’s only comment was “SHOCKER”. Ms Morrissey replied “And My arguement here is that I did contact his mum and she was going to tell him to go back in and sign his bail papers on the day” [sic].
Mr Monaghan was arrested for a breach of bail on 18 May 2011 for failing to report to Woden Police Station on Monday, 16 May 2011.
He was arrested again on 7 June 2011 for a breach of bail involving a failure to accept the supervision of ACT Corrective Services.
The provisions of the Bail Act 1992 relevant to variation of conditions of bail
As at 24 March 2011 the relevant provisions of the Bail Act 1992 were as follows:
19 General provisions relating to court bail
(1) Subject to section 20, a court may—
(a)grant bail to an accused person who is being held in custody in relation to the offence with which the person has been charged; or
(b) enlarge, vary or revoke bail granted to an accused person.
...
Part 5 Bail conditions and undertakings to appear
24 Conditions of bail
A court or an authorised officer may grant bail without imposing conditions or subject to bail conditions imposed—
(a) for a court—by order; or
(b) for an authorised officer—in writing.
25 Conditions on which bail may be granted to adults
(1) The following conditions may be imposed on a grant of bail to an adult:
(a) conditions about the person’s conduct while released on bail;
...
(4)Without limiting subsection (1) (a), the requirements that an accused person may be required to observe relating to his or her conduct while released on bail include—
(a)a requirement that the accused person report periodically, or at specified times, at a stated place; and
...
28 Undertakings to appear
(1) A person may be released on bail only if the person gives a written undertaking—
(a) to appear before a stated court at the place, date and time—
(i)stated in the undertaking; or
(ii)notified to the person by a police officer; and
(b) to comply with the bail conditions (if any).
Note If a form is approved under s 58 for an undertaking, the form must be used.
(2)For a continuation of bail, the person may undertake to appear at any time when, and at any place where, proceedings in relation to the offence with which the person has been charged may be continued.
(3) An undertaking may be given in relation to more than 1 offence.
(4)A court must accept an undertaking given under this section as proof of the matters stated in it if there is no evidence to the contrary.
(5)Subsection (1) (a) does not apply to a person in relation to a breach of the peace or apprehended breach of the peace if no further appearance is required.
31 Bail requirements
(1) An undertaking to appear may be given to—
(a) a court; or
(b) a registrar or deputy registrar; or
(c) an authorised officer; or
(d)for an accused person who is at a correctional centre or a NSW correctional centre—the person in charge of the centre.
...
33 Continuation of bail and undertakings
(1)If an accused person has given an undertaking to appear at a place, date and time at which proceedings in relation to the offence may be continued, whether on any adjournment, postponement or other deferment of the proceedings, or by way of committal, a court may continue the bail already granted in relation to the offence, whether or not the accused person is present in court.
(2)If bail is continued under subsection (1), the undertaking to appear and the bail conditions continue to apply, except to the extent that the undertaking or condition otherwise provides or the court otherwise orders.
Note A court continuing bail must give notice of the continuation, bail conditions and place, date and time to which the proceedings are adjourned, postponed or deferred (see s 34 (4)).
(3)If no direction is made by the court in relation to bail, whether or not the accused person appears in accordance with the undertaking—
(a) the court is taken to have continued bail; and
(b) the undertaking to appear and any bail conditions continue to apply.
(4)If the hearing of a charge against an accused person is adjourned or postponed, the court may—
(a) continue the person’s bail; or
(b) make another order about bail.
(5)However, if a deposit has been made, or security given, by a surety in accordance with a bail condition, the court must not continue bail without the surety’s consent unless it is a condition of bail that the deposit or security continues to apply if bail is continued.
(6) If bail is continued—
(a)the undertaking to appear is taken to be an undertaking to appear an any time when, and at any place where, proceedings in relation to the offence with which the person has been charged may be continued; and
(b) any bail conditions continue to apply.
(7)If an accused person has been released on bail and the court is satisfied that the accused person is because of illness or accident or other sufficient cause unable to appear personally before the court on the day when the person is required to appear, the court may, in the absence of the accused person, order the person to be further remanded to the place, date and time that the court considers appropriate and may order that the undertaking to appear given by the accused person and any agreement entered into under a condition of the grant of bail be continued so as to require the appearance of the accused person at every place, date and time to which the accused person is remanded or the hearing adjourned, postponed or otherwise deferred.
34 Written notice of conditions of bail
(1) A court or authorised officer granting bail to an accused person—
(a) must give the accused person a written notice setting out—
(i) the person’s obligations under the person’s bail conditions; and
(ii)the consequences of any failure by the person to comply with the conditions; and
(b)must be satisfied, before releasing the accused person, that the person will comply with the conditions.
NoteIf a form is approved under s 58 for a notice under this section, the form must be used.
(2) ...
(3)If a bail condition is imposed or varied on a review under part 6 of a decision made in relation to bail, the court or authorised officer imposing or varying the condition—
...
(4)A court continuing bail on an adjournment or a postponement of proceedings must immediately give, or cause to be given, to the accused person a written notice that—
(a) states that bail is continued until the hearing is resumed or stated; and
(b) states the conditions on which bail is presently allowed; and
(c)states the place, date and time to which the proceedings are adjourned or postponed or states that the proceedings are adjourned or postponed to a place, date and time that are from time to time stated in a notice given or sent to the accused person as prescribed by regulation.
...
49 Failure to answer bail
(1) A person commits an offence if the person—
(a) gives an undertaking to appear before a court; and
(b) fails to carry out the undertaking.
Maximum penalty: 200 penalty units, imprisonment for 2 years or both.
(2)The court may issue a warrant to arrest the person and to bring the person before the court.
(3)Subsection (1) does not apply if the person has a reasonable excuse for failing to carry out the undertaking.
...
56A Arrest without warrant of person on bail
(1)This section applies if a person has been granted bail in the ACT, a State or another Territory.
(2)A police officer may arrest the person without warrant if the officer believes on reasonable grounds that the person—
(a) has failed to comply with a bail condition; or
(b) will not comply with a bail condition.
(3) The police officer must bring the person before a court as soon as practicable.
(4) The court may—
(a)for a person granted bail in the ACT—exercise the same powers in relation to bail as it has in relation to any other accused person in custody; or
(b) ...
(5) ...
Variation of bail conditions is a topic which is given little explicit attention in the Act. Section 19 provides a general power to “enlarge, vary or revoke bail”. Other than this, variation of bail conditions is only referred to in the context of the powers of courts to review bail decisions: see ss 34(3), 39, 45, 46. I have not set out the provisions relating to review of bail decisions which are contained in pt 6 of the Act as they do not relate to the general power to vary bail conditions and are not relevant in the present case.
In the present case the issue is whether or not the variation of Mr Monaghan’s bail conditions became effective by reason of the making of the order by Refshauge J varying his conditions of bail or whether Mr Monaghan was required to sign some additional document in order to make that variation effective. That some additional document was required to be signed was certainly the basis upon which Ms Curley’s note was prepared and appeared to be a common assumption at the point when Mr Monaghan appeared before Penfold J. The parties appeared to conduct the case on the basis that there was in fact a requirement for a further document to be signed in order that the variation to the conditions become effective, but one of the submissions of the plaintiff was that this was not the case and that the variation to the bail conditions became effective as a consequence of the order of the Court.
What is required upon a variation of the conditions of bail is dependent upon the relationship between the undertaking to appear referred to in s 28, the provisions of s 33 relating to continuation of bail and undertakings and s 34 which relates to the giving of notice of conditions of bail.
Section 28 requires that a written undertaking be given as a precondition to a person being “released on bail”. Notwithstanding the heading of the section, the provision requires not only an undertaking “to appear”, but also an undertaking to comply with any bail conditions. The distinction between what is stated in the heading to s 28 and the content of the section is explained by the legislative history to which I will return below. I have emphasised the terms “released on bail” because those words are consistent with the undertaking being required at the point when the person is released from custody either following arrest or following a grant of bail following a revocation of bail.
Subsection 28(2) is rather obscurely worded. However, it has the effect that in a single undertaking there can be not only an undertaking to appear “before a stated court at the place, date and time … stated in the undertaking” given under s 28(1), but also an undertaking “to appear at any time when, and at any place where, proceedings in relation to the offence with which the person has been charged may be continued”. This means that an undertaking can operate both in relation to the first appearance before a court after the occasion when bail was granted as well as in relation to subsequent appearances following a continuation of bail on that or a subsequent occasion.
The terms of s 31 are consistent with the undertaking to appear being required only at the point of release from custody. It limits the persons to whom an undertaking may be given to ACT entities (s 31(1)(a)-(c)) or a person in charge of New South Wales correctional centre so as to accommodate the possibility that, as a result of ss 24 – 25 of the Corrections Management Act 2007 (ACT), a person was detained in a New South Wales facility. The section would not accommodate the giving of a bail undertaking following a variation of bail by a person who was unable to give the undertaking to one of the persons identified in s 31, for example, if the person was in another state of Australia.
Section 33 deals with a number of different situations. Section 33(1) and (2) deal with the situation where an accused person has given “an undertaking to appear at a place, date and time at which proceedings in relation to the offence may be continued”. That formula refers back to the type of undertaking provided for in s 28(2). Where that undertaking has been given there is the capacity in a court to continue the bail already granted “whether or not the accused person is present in court”. If that is done then the undertaking to appear and the bail conditions continue to apply “except to the extent that the undertaking or condition otherwise provides or the court otherwise orders”. The wording of this section draws a distinction between the “undertaking to appear” and “the bail conditions”. This distinction is an artefact of the legislative history of the provision to which I will return below.
The other point to note about s 28(2) is that the undertaking to appear and bail conditions continue to apply except in two circumstances. The first is “to the extent that the undertaking or condition otherwise provides”. This incorporates the possibility that an undertaking or condition might be self-limiting, for example if it only applied in relation to dates which, as at the continuation of the grant of bail, had passed. The second is to the extent that “the court otherwise orders”. The scope of this phrase is potentially contentious. It could be interpreted as contemplating a limited power of the Court to continue or not continue an undertaking or condition. On this view of the power, the Court would be limited to terminating the ongoing operation of an undertaking or condition. The alternative interpretation is that it provides a general power to make orders in relation to the undertaking or the bail condition including orders varying the conditions. It is the latter interpretation for which the plaintiff contends with the consequence that the order of the Court made by Refshauge J on 24 March 2011 was effective to modify Mr Monaghan’s bail condition even though the modification was not recorded in the undertaking which he had previously entered and no additional undertaking was entered immediately following the hearing.
The next situation dealt with in s 33 is where no direction is made in relation to bail. In those circumstances s 33(3) provides that, whether or not the accused person appears, the Court is taken to have continued bail and the undertaking to appear and any bail conditions continue to apply. This very practical provision means that if bail is not mentioned everything stays the same. Plainly in those circumstances the conditions of bail cannot be varied or be taken to have been varied.
Section 33(4) needs to be read together with s 33(6) and (7). Subsection 33(4) refers to “the hearing of a charge” being adjourned or postponed. The reference to a “hearing” and to it being “adjourned” is suggestive of dealing with a final hearing, but the overall context of s 33 and the reference to “postponed” as well as “adjourned” indicates that this is a general power in relation to continuation of bail. It accommodates the situation where no undertaking has been given under s 28(2) and hence the only undertaking was that to appear at a stated time and place under s 28(1)(a). It provides a general power to continue bail or make “another order about bail”.
Section 33(6) is a general provision which is to be read with s 33(4). It has the effect of converting the specific undertaking to appear given pursuant to s 28(1)(a) to an undertaking to appear at any time when and where proceedings in relation to the offence may be continued. It also continues any bail conditions.
Section 33(7) deals with the situation where a person has not appeared pursuant to their undertaking. It is associated with s 33(4) because in circumstances where s 33(1) and (3) apply those provisions already accommodate an accused person not being present in court and specifically address the consequences of the continuation of bail, the undertaking and bail conditions. Therefore there is no need for s 33(7) to operate where s 33(1) or (3) apply, leaving only s 33(4) as a provision with which it might operate. Where the conditions in s 33(7) are satisfied then, by order, the person may be remanded to a specific time and place and the undertaking previously given converted by order from a specific undertaking to an undertaking to require the appearance of the accused person at “every place, date and time to which the accused person is remanded or at the hearing adjourned, postponed or otherwise deferred”.
Section 33(5) is a general provision dealing with circumstances where a surety exists and the surety’s consent does not extend to any continuation of bail. It is not presently relevant.
Section 34 requires a court when “granting bail” to give an accused person written notice setting out the person’s obligations under the bail conditions and the consequences of any failure to comply with the conditions. This is routinely done by incorporating the required notice into the document which includes the s 28 undertaking even though that is not mandated by the terms of s 28(1)(b). Section 34(3) deals with the giving of notice following a review under pt 6 of the Act. As I have pointed out these review provisions were not involved in the present case.
Section 34(4) imposes a burden on “a court continuing bail” to give to the accused person a written notice stating the three things in paragraph (a)-(c). Significantly for present purposes it requires that the written notice state “the conditions on which bail is presently allowed”: s 34(4)(b). The existence of this provision is inconsistent with an interpretation of the Act which would require a new undertaking to be signed on each occasion where the conditions of bail are varied. Why would written notice need to be given if a new undertaking, which contained the varied conditions, had to be entered into? Rather, the requirement is more consistent with bail conditions being able to be varied without a new undertaking being entered and written notice being given to the person by the means set out in s 34(4). One oddity of the drafting is that this section imposes an obligation on “a court” which is defined as the Magistrates Court or the Supreme Court. Who this actually refers to is obscure, but may have significant consequences. If it imposes a burden on the judicial officer who constitutes the court then that would be consistent with the ordinary meaning of a reference to the Magistrate Court or Supreme Court, but would impose an impractical administrative burden. If it imposes a burden upon the executive government, which provides the administrative staff of the courts, then that is a different obligation. Of more significance in the present case is the fact that “give”, where it appears in s 34, is a term given content by the Legislation Act 2001 (ACT) ss 245, 247, 250. Those provisions permitted physically giving a s 34 written notice to a person as well as sending it to the person by prepaid post at their home or business address: s 247. Thus, if there is no requirement that a person on bail sign a new bail undertaking or other document reflecting any amendments to the conditions upon which the person is granted bail then the mechanism provided in s 34 may not in fact bring the amended terms of bail to their attention for several days, if at all.
The interpretation of the Bail Act in its 24 March 2011 form is assisted by taking into account the legislative history of the Act, in particular the legislative history of s 28. As with many pieces of legislation, a relatively clear and coherent structure existed at the time when it was introduced and that clarity and coherence has been gradually eroded by amendments made over time.
When the Bail Act was first enacted s 28 made no reference to the conditions of bail. Rather, as the heading to the section continues to suggest, it related only to an undertaking to appear. The section did include a provision (s 28(3)), the equivalent of s 28(2) set out above, which permitted the undertaking to include an undertaking, if bail was continued, to appear at any time and place at which the proceedings in respect of the offence may be continued. Thus conditions of bail, when imposed by the Court, were imposed by order, not included in any undertaking and were the subject of the written notice requirements in s 34. However, in so far as a bail condition related to the conduct of an accused, s 25(1)(a) permitted a condition “that of the accused person undertakes, in writing, to observe specified requirements as to his or her conduct while released on bail”. Thus there were two types of undertaking provided for, one under s 28 and one under s 25(1)(a).
In that context it was clearer that the reference to “the court otherwise orders” in s 33(2) was a reference to a general power to vary bail conditions. The general nature of the power in s 33(2) was reinforced by the fact that s 33 was a relatively inflexible provision which only permitted the continuation of bail where the undertaking to appear at a place, date and time at which the proceedings may be continued had been included in the original undertaking. This meant that, other than in cases of illness or accident (dealt with in s 33(6), the equivalent of s 33(7) set out above), all continuation of bail needed to be dealt with by s 33(1) and (2) and hence the power to “otherwise order” applied in the vast majority of cases. However, so far as bail conditions related to the conduct of the accused person, because of the terms of s 25(1)(a) any variation could only be implemented by the entry into a varied agreement to observe the “specified requirements as to his or her conduct”. That is not expressly stated, but it is a necessary consequence of the terms of s 25(1)(a).
In January 1998 the ACT Law Reform Commission received terms of reference from the Attorney-General in relation to the operation of the Bail Act. In July 2001 the Commission reported: ACT Law Reform Commission, Report No 19, Report on the Laws Relating to Bail (July 2001). In relation to s 28 the report provided:
60. If bail is granted the accused person must provide a written undertaking in accordance with section 28. That section is in the following terms:
(1) A person shall not be released on bail unless he or she undertakes, by instrument, to appear before a specified court—
(a) at a place, date and time specified in the instrument; or
(b) at a place, date and time notified to him or her by a police officer.
(2) An undertaking to appear may be given in respect of more than 1 offence.
(3) An undertaking to appear may include an undertaking, if bail is continued, to appear at any time and place at which proceedings in respect of the alleged offence may be continued, whether upon adjournment or otherwise.
(4) Subject to section 30, an accused person who is granted bail is under a duty to appear in person before a court in accordance with his or her undertaking under subsection (1).
(5) An instrument under subsection (1) is an official document and is admissible in evidence in a proceeding to prove the undertaking it contains.
61. The Act appears to distinguish between an undertaking to appear given by instrument after bail has been granted and an order imposing a condition that the accused person enter into an agreement in writing to observe specified requirements as to his or her conduct whilst on bail. This distinction is both unnecessary and confusing.
62. The Commission is of the view that compliance with any such conditions should form part of the bail undertaking. The conditions upon which bail is granted are often as important as the obligation to appear at court when required and that should be reflected in the same document. Furthermore, their relegation to a separate agreement means that they are unenforceable save, perhaps by application for revocation of bail. The order of the court is not that the accused person comply with such conditions but only that he or she enter into an agreement to do so. Hence, once the agreement has been entered into, the order had been complied with and breach of the conditions does not involve breach of the order punishable by proceedings for contempt of court. The offence created by section 49 applies only to a failure to appear as required by the undertaking.
63. It should be possible for a court to impose conditions without requiring that they be written into the written undertaking. For example, during the course of a jury trial, a judge may grant bail over a luncheon adjournment but impose a condition that the accused person not leave the precincts of the court. It would generally be sufficient that the accused verbally acknowledge that he or she is bound by such a condition. For this reason, the Commission does not propose that the proposed amendment require that any conditions actually be stated in the undertaking but rather that the undertaking extend to compliance with any conditions that may have been imposed or may subsequently be imposed.
64. However, it should be noted that section 34 requires a court or authorised officer granting bail to an accused person to provide the accused person with a notice in writing setting out his or her obligations concerning the conditions of bail and the consequences of any failure to comply with them. This should be sufficient to ensure that he or she understands the conditions that have been imposed and has a suitable record of them.
65. The Commission recommends that section 28 be amended to provide that the bail undertaking include an undertaking to comply with any conditions imposed by the authorised officer or court.
[Footnotes omitted. Italicised emphasis added]
Thus what was proposed by the Commission was the incorporation into the s 28 undertaking of a general undertaking to comply with conditions that have been or are subsequently imposed. It was not intended that the specific conditions themselves be stated in the s 28 undertaking. Rather, notice would be given of the terms of the conditions via s 34.
The Commission’s recommendation was formally accepted by the government: Legislative Assembly the Australian Capital Territory, Government Response to the Report by the Australian Capital Territory Law Reform Commission on Bail (June 2003) pages 7-8. The government’s response provided:
Section 28 of the Bail Act provides that a person must give an undertaking, in writing, to appear before being released on bail.
In addition to the undertaking, many defendants are released on bail subject to bail conditions. Under section 25(1), the conditions that may be imposed include a condition that the defendant enter into a written agreement to observe specified requirements as to his or her conduct while released on bail. As the Commission points out, the conduct requirements are often as important as the undertaking to appear. For example, they may restrain a defendant from approaching or contacting an alleged victim. Currently, the agreement as to conduct is contained in a separate agreement to the undertaking to appear, a distinction the Commission sees as both unnecessary and confusing.
The Commission recommends combining in a single document the undertaking to appear and any bail condition involving an agreement as to conduct requirements. Under this proposal, the undertaking to appear would be expanded to include an undertaking to comply with any bail conditions. The government supports this recommendation.
[Emphasis added].
This last quoted paragraph contains some ambiguity. The first sentence suggests that what was understood by the government was that “any bail condition” might be part of the single document. The next sentence is consistent with what the Commission proposed in that it refers to the expansion of the undertaking to include an undertaking to comply with any bail conditions as opposed to necessarily including the terms of the bail conditions in the document.
The amendments to give effect to that agreement were made by the Bail Amendment Act 2004 (ACT). The Act amended s 25(1)(a) so that it referred simply to conditions as to the person’s conduct while released on bail rather than the entry into an agreement. Section 28 was substituted and in its substituted form permitted written undertakings to include any bail conditions imposed by the court or authorised officer. In the light of the legislative history s 28(1)(b), which refers to “to comply with the bail conditions (if any)”, can be seen as referring to a general obligation to comply with any bail conditions that are imposed, rather than to comply with the bail conditions set out in the undertaking document itself.
Unfortunately neither the Commission’s report nor the legislative response dealt expressly with what was to occur in circumstances where conditions of bail were varied. While the original form of s 25(1)(a) required conditions of bail relating to conduct to be incorporated into the written agreement contemplated by the section, no amendments were made as a consequence of the modifications to s 28 which addressed how variations to bail conditions relating to a person’s conduct were to be documented. However, part of the amendments made by the Bail Amendment Act 2004 was the inclusion of the note after s 33(2). In relation to that note, the explanatory statement said:
Clause 24: Continuation of bail and undertakings
Section 33 of the Act enables a court to continue bail granted to a person if the time and date the person is scheduled to appear at court has changed for some reason. Rather than review the allowance of bail altogether the court may decide to continue bail on the same, or modified basis, until the new hearing date. Clause 24 adds a note to section 33(2) to draw attention to the fact that a decision to continue bail must be conveyed to the defendant. Section 34(4) sets out what should be in a written notice to a defendant if bail is continued.
The statements here and the insertion of the note are consistent with an intention that a court deciding to continue bail on a “modified basis” communicate the new terms upon which bail is granted through the notice required by s 34(4). That is consistent with the legislature having implemented the Commission’s recommendations which contemplated that, under the new scheme which did not require a separate agreement to comply with conditions relating to conduct, notice of bail conditions would be given to the accused under s 34.
The application of the Bail Act in the circumstances of the present case
The evidence in the present case was clearly deficient in that it did not disclose the charge that the plaintiff was facing or include the undertaking that the plaintiff must have entered under s 28 of the Act in order to have been released on bail in the first instance.
So far as Mr Monaghan’s bail is concerned, the first document that is in evidence is the document dated 10 March 2011 set out at [4]. Interpreting the document is made more difficult by the absence of relevant evidence about the charge that Mr Monaghan was facing and the previous history of his bail. However, the heading “ACT Magistrates Court & Tribunals” is consistent with the document relating to a continuation of bail by the Magistrates Court which occurred at the point where he was committed for trial to the Supreme Court.
The document does not record an undertaking under s 28 because there is no undertaking consistent with the terms of s 28(1) or (2) on the document. Further, it is headed “Notice of Continuance of Bail” consistent with it being a notice under s 34 of the Bail Act. That is also consistent with the fact that the document in its terms referred to:
(a)a past undertaking to appear;
(b)the adjournment of proceedings;
(c)the continuation (rather than grant) of bail; and
(d)the signature by the accused person being “optional”.
The document does record: “DATE OF UNDERTAKING TO APPEAR: 10 March 2011”. That is the date of the document itself. Clearly it should have referred to the date in the past when the undertaking to appear had been given and not the date upon which the Notice of Continuance of Bail was created. The statement “DATE OF UNDERTAKING TO APPEAR: 10 March 2011” is a product either of an inadvertent error or of the court officer who prepared the document not understanding the nature of the document being prepared or its relationship to an undertaking to appear under s 28.
In summary, the position immediately prior to 24 March 2011 was:
(a)As a result of a criminal charge against him in the Magistrates Court Mr Monaghan had, at some previous but unidentified time, entered into a bail undertaking pursuant to s 28 of the Bail Act.
(b)On 10 March 2011 the Magistrates Court had continued his bail until 24 March 2011 when he was required to appear in the Supreme Court for directions at 9:30 am.
It is not clear whether the original undertaking given by Mr Monaghan included the undertaking contemplated by s 28(2) or whether the undertaking was taken to have that effect by reason of the operation of s 33(6) or (7).
Consistently with what was indicated on the Notice of Continuance of Bail dated 10 March 2011, Mr Monaghan did appear on 24 March 2011. I infer that he was present in court during the course of the directions hearing and when the Court made the order varying his bail.
Having regard to the fact that Refshauge J expressly dealt with the issue of bail, even though he did not expressly continue bail I consider that the continuance of bail is necessarily implied into the order that his Honour made because his Honour varied the terms on which bail was granted.
Therefore the case was either one which fell within:
(a)s 33(1) because an undertaking under s 28(2) had been given and an order was made continuing bail; or
(b)s 33(4) where no such undertaking had been “given” by the accused (but the undertaking had been previously taken to have that effect under s 33(6) or (7)).
The order for a variation of bail is therefore appropriately characterised as the Court either:
(a)making an order so as to vary the condition of bail for the purposes of s 33(2) (“or the court otherwise orders”); or
(b)making “another order about bail” for the purposes of s 33(4)(b) namely continuing bail but with varied conditions.
In either situation, having regard to the interpretation that I have set out above, in those circumstances there was no requirement on Mr Monaghan to enter a new bail undertaking under s 28. Rather, the obligation was on the “court” to give to him a written notice under s 34(4) stating that bail was continued, stating the conditions upon which bail was presently allowed and stating the time and place to which the proceedings had been adjourned. Although the Notice of Continuance of Bail dated 10 March 2011 which is in evidence had been signed by Mr Monaghan, his signature was not required on a written notice given under s 34(4) and on the form the accused’s signature was expressly identified as being optional.
The Notice of Variation of Bail dated 28 March 2011 created after the hearing before Penfold J is signed by Mr Monaghan. It is not a s 28 undertaking. There is nothing in s 34 that would require such a notice to be signed or given to the person on bail as a precondition to any variation of the conditions of bail identified in the document becoming effective.
Plainly enough the administrative step of having an accused person sign a “Notice of Continuation of Bail” or “Notice of Variation of Bail” was desirable having regard to the importance of there being proof that the amended conditions had come to the notice of an accused person. However, under the operation of the Act as I have explained it above, it was not a prerequisite to the bail being continued on conditions varied by Refshauge J’s order.
Therefore the position is that there was in fact no requirement under the Bail Act for Mr Monaghan to sign any new undertaking or any other document in order to give effect to his amended bail conditions. However, Ms Curley’s file note and her actions on 24 March 2011, Mr Lalor’s statements to Penfold J on 28 March and the bench sheet recording the outcome of proceedings on that date reflected an assumption or belief that Mr Monaghan was required to sign a further document to make his varied condition effective.
Lawfulness of the plaintiff’s arrest under the Bail Act
Section 56A of the Bail Act permits a police officer to arrest a person without a warrant if the officer believes on reasonable grounds that the person has failed to comply with a bail condition. The police officer is then obliged to bring the person before a court as soon as practicable.
The information conveyed by facsimile by a staff member in the Registry to the AFP is described at [10] above. The effect of that communication and hence the information that was reasonably available to the AFP was that on 24 March 2011 bail had been continued on the same terms as recorded on the document dated 10 March 2011, which included condition 6: “Report to Woden Police Station, daily between the hours of 8 am and 8 pm”.
In the present case the evidence established that Mr Maxwell checked the information that had been provided by the Supreme Court to the AFP and reached the correct conclusion based upon that information that Mr Monaghan was required under his bail conditions to have reported on Saturday, 26 March 2011. He therefore had reasonable grounds for concluding that Mr Monaghan had failed to comply with a bail condition. As a result he decided to arrest him. As a consequence the arrest and detention of the plaintiff under s 56A was lawfully justified. That was notwithstanding the fact that the information conveyed by the Registry staff at the Supreme Court was incorrect.
Claim in negligence
The plaintiff’s particulars of negligence are numerous, but incorporate the following allegations of negligence:
(a)informing the plaintiff that it was not necessary for him to sign the varied bail conditions and that he was free to leave the Supreme Court;
(b)failing to take steps to inform the AFP of the varied bail conditions or the inadvertent failure to require the plaintiff to sign the varied bail conditions;
(c)failing to have an appropriate system in place for the administration of the plaintiff’s bail conditions; and
(d)failing to take adequate steps to correct the error of not requiring the plaintiff to sign the varied bail conditions.
In the light of my conclusion above that there was no legal requirement upon Mr Monaghan to sign a document in order to bring the variation of his bail conditions into effect, the most relevant allegations of negligence are those of failing to take steps to inform the AFP of Mr Monaghan’s varied bail conditions and failing to have an appropriate system in place for the administration of bail. However, in case I am wrong in my conclusion about whether Mr Monaghan was required to sign a further document to bring his varied bail conditions into effect, I have made some reference below to the consequences that would arise if he was in fact required to sign some further document.
The defendant’s contentions, as I understood them, were that:
(a)There was no duty of care:
(i)having regard to the factors identified in Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649 (Caltex Refineries); and
(ii)in circumstances where no recognised psychiatric injury had been established.
(b)There was no breach of duty established on the facts;
(c)Damages were not recoverable by reason of the terms of pt 3.2 of the Civil Law (Wrongs Act) 2002 (ACT) (CLW Act) or otherwise at common law;
(d)Factual causation was not established as there was a break in causation arising from the failure on the part of the Aboriginal Legal Service to communicate effectively with its client; and
(e)It was not open to make a claim in negligence relating to conduct for which wrongful imprisonment or malicious prosecution were the appropriate torts.
Provisions of the CLW Act
Given the unusual nature of the present action it is necessary to consider the extent to which the provisions of the CLW Act apply.
Chapter 2 is headed “Provisions applying to wrongs generally”. The terms of the various parts of ch 2 make it clear what types of civil liability those parts apply to: see ss 5, 8, 11B, 12, 15 and 19.
Chapter 3 is entitled “Liability for death or injury”. Part 3.1 relates to wrongful acts or omission causing death and is not relevant in the present case. Part 3.2 is entitled “Mental harm”. Significant reliance is placed upon the terms of this part by the defendant. Section 33 provides that “in an action for personal injury” a plaintiff is not prevented from recovering damages only because the injury arose completely or partly from mental or nervous shock. Section 34 limits the circumstances in which a duty of care arises in relation to mental harm, limiting it to circumstances where a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care was not taken. Section 34 limits damages for “pure mental harm” to harm that consists of a “recognised psychiatric illness”. Section 36 describes an extension of liability in relation to the injury caused to a person to mental or nervous shock received by certain other identified categories of persons.
Part 3.3 relates to liability for terrorism associated risks and is not relevant to the present case.
Chapter 4 is entitled “Negligence”. Section 41 identifies that the chapter applies to “all claims for damages for harm resulting from negligence, whether the claim is brought in tort, in contract, under statute or otherwise.” Part 4.2 relates to the duty of care, pt 4.3 relates to causation, pt 4.4 permits a reduction of 100% on account of contributory negligence (s 47) and deals with fraudulent claims (s 48).
Chapter 5 deals with pre-court procedures. There is no ch 6. Chapter 7 then addresses issues relating to damages, including contributory negligence (pt 7.3). Chapter 7A deals with proportionate liability.
Chapter 8 addresses liability of public authorities. Section 110 provides principles about resources and responsibilities of public authorities. Section 111 provides a test to be applied when the proceedings are brought against public or other authorities based on breach of statutory duty. Section 112 provides that a public or other authority is not liable in proceedings based on the failure of the authority to exercise a function of the authority to prohibit or regulate activity if the authority could not have been required to exercise a function in proceedings begun by the claimant. Section 113 provides a provision in relation to road maintenance. Section 114 provides that the fact that a public or other authority exercises or decides to exercise a function does not itself indicate that the authority is under a duty to exercise that function or to exercise it in a particular way.
Chapters 9 to 15 contain provisions which are not presently relevant.
Was there a duty of care?
The relevant duty of care would be that between Mr Monaghan, a person on bail who had been directed to the Registry to do whatever was necessary to give effect to his current grant of bail and:
(a)the employees of the Territory with whom he dealt (and for whom the Territory is vicariously liable); and
(b)the executive government of the Territory which is responsible for court administration.
While the statement of claim pleaded the duty in rather obscure terms, the relevant duty would be a duty to take reasonable care in giving effect to the orders made by Refshauge J and in particular:
(a)not make statements to Mr Monaghan as to what he was required to do in order to make Refshauge J’s orders effective which were incorrect; and
(b)not provide information to the AFP about the current conditions upon Mr Monaghan’s grant of bail which was incorrect.
Neither party directed me to any earlier case in which liability in negligence was sought to be imposed upon a government in similar circumstances. In Caltex Refineries Allsop P said in relation to whether a duty of care arose in a novel circumstance or category:
101 The High Court has rejected its previously enunciated general determinant of proximity, the two stage approach in Anns v Merton London Borough Council [1978] AC 728 based on reasonably foreseeability, the expanded three stage approach in Caparo Industries Plc v Dickman [1990] 2 AC 605 and any reformulation of the latter two, such as in Canada in Cooper v Hobart (2001) 206 DLR (4th) 193. See by way of example: Perre v Apand at 193-194 [9]-[10] per Gleeson CJ, at 210-212 [77]- [82], 212-213 [83], 216 [93] per McHugh J, at 300-302 [330]-[333] per Hayne J; Modbury Triangle Shopping Centre Pty Ltd v Anzil 205 CLR 254 at 288-289 [101] per Hayne J; Crimmins at 97 [272] per Hayne J; Brodie v Singleton Shire Council at 630-631 [316] per Hayne J; Sullivan v Moody at 577-580 [43]-[53] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ; Tame at 402 [250] per Hayne J; Vairy at 444 [66] per Gummow J; Imbree v McNeilly at 658 [40]-[41] per Gummow, Hayne and Kiefel JJ.
102 This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the “salient features” or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.
103 These salient features include:
(a) the foreseeability of harm;
(b) the nature of the harm alleged;
(c) the degree and nature of control able to be exercised by the defendant to avoid harm;
(d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;
(e) the degree of reliance by the plaintiff upon the defendant;
(f) any assumption of responsibility by the defendant;
(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;
(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;
(i) the nature of the activity undertaken by the defendant;
(j) the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;
(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;
(l) any potential indeterminacy of liability;
(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;
(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;
(o) the existence of conflicting duties arising from other principles of law or statute;
(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.
104 There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content.
105 The task of imputation has been expressed as one not involving policy, but a search for principle: see especially Sullivan v Moody at 579 [49]. The assessment of the facts in order to decide whether the law will impute a duty, and if so its extent, involves an evaluative judgment which includes normative considerations as to the appropriateness of the imputation of legal responsibility and the extent of thereof. Some of the salient features require an attendance to legal considerations within the evaluative judgment.
106 I have described “foreseeability” as a salient feature; it is perhaps better expressed that the use of salient features operates as a control measure on foreseeability employed at the level of abstraction earlier discussed, for example by Glass JA in Shirt as the foundation for the imputation of duty of care. In a novel area, reasonable foreseeability of harm is inadequate alone to found a conclusion of duty. Close analysis of the facts and a consideration of these kinds of factors will assist in a reasoned evaluative decision whether to impute a duty. Whilst simple formulae such as “proximity” or “fairness” do not encapsulate the task, they fall within it as part of the evaluative judgment of the appropriateness of legal imputation of responsibility.
In State of New South Wales v Spearpoint [2009] NSWCA 233 Allsop ACJ said:
21 It is clear that in ascertaining whether, in any particular circumstances, a duty of care is to be imputed and in identifying its scope and content, where the circumstances are not covered by an accepted category of liability, the task is to analyse closely the facts bearing on the relationship between the plaintiff and the putative tortfeasor. See for example Woolcock StreetInvestments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at [22].
22 This close examination will involve an assessment of salient features such as foreseeability, degree of harm, vulnerability, reliance, assumption of responsibility and numerous other possible factors. These other factors will include legal policy such as coherence and conformity with other duties or legal obligations.
23 Whilst the ultimate question as to the existence of a duty of care is one of law (Vairy v Wyong Shire Council (2005) 223 CLR 422 at [62]) the task is one which is fact rich and fact intensive. To put it as Windeyer J did in Mount Isa Mines v Pusey (1970) 125 CLR 383 (at 398 and 399) it is “a value judgment upon ascertained facts”.
Because of the fact that neither party called evidence as to the administrative processes adopted within the Supreme Court in relation to implementing the Court’s decisions as to bail, it is necessary to undertake the “fact rich and fact intensive” process based on the limited documentary evidence from which inferences can be drawn about the processes adopted.
In the present case the harm which is being considered is a loss of liberty arising from the manner in which bail decisions by a judge of the Supreme Court were implemented.
In my view, having regard to the factors identified in Caltex Refineries, a duty of care exists between the Territory and its employees and the person the subject of the bail order. In the present circumstances the duty of care and its contents are as set out at [85]-[86] above. I will explain how in reaching that conclusion, I have taken account of the factors identified in Caltex Refineries at [103].
Clearly it is foreseeable that harm will arise if care is not taken to accurately implement the decision of the Court (factor (a)). Where bail is granted or varied there is an obvious risk that if the conditions of bail are not accurately reproduced in documentary form then a person may lose his or her liberty as a result of an allegation of breach of bail. That is principally because the terms upon which bail is granted are communicated to the AFP and form the basis upon which the police make decisions about whether to arrest for an alleged breach of bail. However, as this case illustrates, following the pronouncement of orders in court there are a number of administrative steps which need to be taken to give effect to the Court’s decision and without which a person may suffer a loss of liberty. It is plainly foreseeable that a failure to properly implement those steps may lead to a loss of liberty.
The nature of the harm (factor (b)) is a loss of liberty which is a significant and important right of an individual subject to bail conditions.
So far as factor (c) is concerned, the defendant has complete control over the manner in which a judge’s bail decisions are implemented. The judge’s orders can only be documented and implemented through actions of the executive government. Subject to any order of the Court and relevant legislative provisions, the executive government has complete control over the manner in which that is done including the systems put in place within the Registry and the level of training provided to Registry staff.
Factor (d) relates to vulnerability. The plaintiff was clearly vulnerable to harm from any failure by the defendant to properly give effect to the decision of the judge. Mr Monaghan was a particularly vulnerable individual having regard to the evidence of Mr Aldridge set out at [139]-[149] below about his mental health condition. He was somebody who was very much dependent upon others to do what was necessary to give effect to his bail conditions. Considered more generally, persons the subject of bail conditions would generally be people who were unfamiliar with precisely what was required in order to give effect to a court’s order and permit them to be lawfully at liberty on bail conditions consistent with that order. Not only will such persons usually be ignorant of the legal niceties, but they will also vary greatly in terms of intelligence, understanding of administrative processes, health and language skills. While there would be some expectation that such a person would, in order to protect themselves, follow the instructions that they were given by those in authority it could not reasonably be expected that they would go beyond what they were told to do by an apparently authoritative person in order to protect their own interests. The extent of vulnerability would be reduced in circumstances where a person was represented by a lawyer who was present at the point of dealing with Registry staff in relation to the mechanics of bail.
In relation to reliance (factor (e)), for the reasons which I have outlined above, not only would persons the subject of bail conditions be generally reliant upon the defendant to take the steps necessary to properly give effect to a judge’s bail decision, but in the present case, having regard to the personal circumstances of the plaintiff, he was completely reliant upon the defendant to do so.
This is not a case in which there was any assumption of responsibility by the defendant (factor (f)). Rather it was a situation where the defendant and its employees were required as part of the proper functioning of the Court to perform administrative tasks necessary to give effect to the Court’s decision.
Proximity or nearness in a physical temporal relational sense (factor (g)) is not a significant factor in the present case. Similarly the category of relationship (factor (h)) is not significant. The relationship was between a person on bail and government employees responsible for court administration.
The nature of the activity undertaken by the defendant (factor (i)) was that of a governmental agency and its staff.
The nature or degree of the hazard or danger caused by the conduct (factor (j)) was the obvious risk that the failure to properly perform the administrative tasks necessary to give effect to a court’s order may have adverse consequences, including loss of individual liberty.
In relation to factor (k), I can infer that the defendant knew or ought to have known that the failure to properly give effect to orders of the Court could cause harm to the plaintiff or a person in the position of the plaintiff.
Potential indeterminacy of liability (factor (l)) is not an issue which tells against the imposition of a duty because the category of persons in relation to whom the duty would exist is a defined and confined one.
Factor (m), the nature and consequences of any action that can be taken to avoid the harm to the plaintiff, is only significant insofar as proper administrative processes in relation to implementation of decisions affecting individual liberty made by one of the three arms of government would be something that would be generally expected to occur.
Factor (n), the potential imposition on the autonomy or freedom of individuals, is not relevant as the defendant is a government entity and not a person whose freedom or autonomy would be imposed upon by the imposition of a duty of care in a case such as this.
Factor (o), the existence of conflicting duties arising from other principles of law or statute, does not tell against the existence of a duty of care. The situation here is distinct from cases involving the police (see for example Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [62]; New South Wales v Tyszyk [2008] NSWCA 107 at [125]) where conflicting duties exist. The duties upon the defendant were simply to properly implement the decision of the Court.
Factor (p), the consistency between a duty and the terms, scope and purpose of any relevant statute, does not tell against the imposition of a duty. I will refer separately below to the significance of the provisions of the CLW Act. Otherwise there would be no inconsistency with the terms of scope or purpose of any relevant statute.
Factor (q), consistency with the structure and fabric of the common law, does not tell against the imposition of a duty. So far as this case involves the consequences of a failure to give accurate information to another government entity or a misstatement arising from negligent conduct, the imposition of a duty would be consistent with the structure and fabric of the common law.
Therefore, subject to matters arising from statutory provisions in the CLW Act, this is a case in which there was a duty of care owed by the employees of the Territory and the Territory itself to the plaintiff.
Section 34 and the duty of care
The most significant statutory provision that might affect whether a duty of care existed is s 34 of the CLW Act which provides:
34 Mental harm—duty of care
(1) A person (the defendant) does not owe a duty to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
Sections 18(1) and 18(2) of the HR Act provide:
18 Right to liberty and security of person
(1) Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained.
(2) No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.
The plaintiff claims that the arrest and detention was “arbitrary” (s 18(1)) and that he was deprived of liberty other than “on the grounds and in accordance with the procedures established by law” (s 18(2)).
The chain of reasoning for which the plaintiff contends is as follows:
(a)If the plaintiff was “unlawfully” arrested or detained then he is entitled to compensation under s 18(7).
(b)His arrest and detention was “arbitrary” under s 18(1) or not in accordance with “procedures required by law” under s 18(2).
(c)Because of the contravention of ss 18(1) and 18(2) the police officers engaged in conduct which was “unlawful” under s 40B;
(d)The arrest and detention was therefore “unlawful” for the purposes of s 18(7).
(e)The arrest and detention was caused by the error of Registry staff for which the Territory is responsible and therefore compensation is recoverable from the Territory even though the arrest and detention was by the officers of the AFP.
At least two issues arise from this suggested chain of reasoning:
(a)Is this reasoning permissible having regard to the terms of s 18(7)?
(b)Does s 18(7) give rise to a freestanding entitlement to compensation distinct from any entitlement at common law?
Is this reasoning permissible having regard to the terms of s 18(7)?
Whether or not the reasoning is permissible having regard to the terms of s 18(7) will be influenced by the extent of any difference between the scope of s 18(7) and ss 18(1) and 18(2). That in turn is dependent upon the meaning of “arbitrary” and “procedures required by law”.
“Arbitrary” is an imprecise term. Manga v Attorney-General [2002] 2 NZLR 65 (Manga) is authority for the proposition that unlawful detention is arbitrary detention. However, it is the circumstances in which lawful detention is arbitrary where difficulties arise. In Manga Hammond J said that lawful detentions may also be arbitrary “if they exhibit elements of inappropriateness, injustice or lack of predictability of proportionality”: at [40]. He referred to the history of the drafting of article 9 of the International Covenant on Civil and Political Rights (1966), which demonstrated that both “illegal” and “unjust” acts were caught: at [42]. That is consistent with the decision of the Court of Appeal of New Zealand in Zaoui v Attorney-General [2005] 1 NZLR 577. Both majority and minority judges in that case accepted that arbitrariness extended beyond unlawfulness. The distinction between the majority judges (McGrath J with whom Regan J agreed) and Hammond J who dissented was as to the application of the principles to the facts.
In Neilsen v Attorney-General [2001] 3 NZLR 433 at [34] Richardson P described arbitrariness in the context of arrest or detention as follows:
Whether an arrest or detention is arbitrary turns on the nature and extent of any departure from the substantive and procedural standards involved. An arrest or detention is arbitrary if it is capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures.
In Van Alphen v The Netherlands (communication 305/1988) the UN Human Rights Committee described the reference to “arbitrary” in article 9(1) of the International Covenant on Civil and Political Rights (1966) as follows (at [5.8])
The drafting history of article 9, paragraph 1, confirms that “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. Further, remand in custody must be necessary in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime.”
This reasoning was adopted in A v Australia (Communication 560/1993, 3 April 1997) at [9.2] where the Committee said:
9.2 On the first question, the Committee recalls that the notion of "arbitrariness" must not be equated with "against the law" but be interpreted more broadly to include such elements as inappropriateness and injustice. Furthermore, remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context.
See also Fok Lai Ying v Governor-in-Council [1997] 3 LRC 101 at [37]-[38].
Similarly there is potential for a person to be detained other than in accordance with the processes required by law in circumstances where it cannot be said that they have been “unlawfully arrested or detained”. The decision in R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58 illustrates the potential for a difference between the two concepts.
Accepting that “arbitrary” is a term which extends beyond unlawfulness to unreasonable conduct, is it possible, by the chain of reasoning outlined above, to convert s 18(7) from requiring compensation for unlawful detention to an obligation which requires compensation for lawful but unreasonable detention. However, in my view, it is not permissible to achieve this transformation by the chain of reasoning contended for by the plaintiff. That is because s 18(7) must be read in the context of the other provisions of s 18, particularly s 18(1) and (2). The text of s 18(7) refers to “unlawful”, not to “arbitrary”, arrest and detention. That is in a context where s 18(1) refers to the distinct concept of arbitrariness. The use of different words is a strong indication that the entitlements under the subsection are of different content. Similarly, in s 18(2) the absence of compliance with “procedures required by law” may or may not render arrest or detention unlawful but it is unlawfulness that is the touchstone in s 18(7). Because of the different language used in the subsections of s 18, it would be inconsistent with the text and structure of s 18 to permit the reference in s 40B to convert the rights in s18(7) from that which is stated in the subsection to something else. That is particularly so when the purpose of the exercise is not to obtain a remedy under pt 5A of the Act, in which s 40B appears, but a freestanding remedy outside the scope of pt 5A.
In the light of the above, because the arrest and detention of the plaintiff by the members of the AFP was legally justified and hence not unlawful, s 18(7) would not, even if it provided a free standing cause of action, provide a remedy in this case.
Does s 18(7) give rise to a freestanding entitlement to compensation distinct from any entitlement at common law?
Whether or not prior to the 2008 amendments, s 18(7) provided a freestanding entitlement to compensation distinct from the common law remedies available for unlawful arrest or detention has been a matter of controversy in this Court. The decision of Gray J in Morro is consistent with such an entitlement existing. However, in Strano v Australian Capital Territory [2016] ACTSC 4 at [21]-[36] (Strano), Penfold J doubted whether Gray J in Morro held that s 18(7) created a directly enforceable right and expressed considerable doubt about the correctness of the decision if he did.
The decisions in Morro and Strano related to the form of the HR Act as it was in place prior to the Human Rights Amendment Act 2008 (ACT) (2008 Amending Act). Both judgments were given after the 2008 Amending Act came into effect. Prior to the 2008 Amending Act the only remedy expressly provided for in the HR Act was a declaration of incompatibility under s 32. The HR Act was confined to imposing obligations upon those presenting legislation to the Legislative Assembly (ss 37-39) and an interpretive provision designed to encourage the interpretation of legislation in a manner consistent with the human rights stated in the Act (s 30).
The amendments to the legislation in 2008 introduced the potential that remedies could be granted by the Supreme Court where a public authority had acted in contravention of its obligation not to act in a manner incompatible with a human right or failing to give proper consideration to a relevant human right. The nature of the remedy that could be granted was both defined and limited by s 40C(4) which provided that the Supreme Court could “grant the relief it considers appropriate except damages”. However, s 40C(5)(b) provided that the section did not affect “a right a person has to damages (apart from this section)”. A note under subsection (5) provides “Note: See also s 18(7) and s 23.” Notes do not form part of the Act (Legislation Act 2001 (ACT) s 127), however, because they appear in an authorised version of the Act, they are extrinsic material which may be taken into account in interpreting the Act: Legislation Act s 142, Table 142 item 1. The existence of s 40C(5)(b) and the note are consistent with the legislature having amended the Act on the assumption that s 18(7) provides a separately enforceable right to damages. That is reinforced by the terms of the Explanatory Statement for the Human Rights Amendment Bill 2007 (ACT) which provided in relation to what became s 40C(5)(b):
Paragraph 40C(5)(b) confirms that nothing in this section affects any right a person may have to damages apart from the operation of this section. The note explains that nothing in this section restricts the right to compensation that arises under section 18(7) and section 23 of the Human Rights Act 2004.
The indication that ss 18(7) and 23 might themselves provide freestanding causes of action was plainly inconsistent with what was said at the time of the introduction of the HR Act in 2004. The Explanatory Statement for the Human Rights Bill 2003 (ACT) (“the Bill”), which became the Act, provides:
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.
[Emphasis added].
In his presentation speech the Chief Minister said:
The covenant and related instruments, case law and materials which form part of the jurisprudence of civil and political rights, would inform the interpretation of the rights protected by the bill. And I reiterate, lest there is any confusion on the point, the bill does not invalidate other territory law, nor does it create a new cause of action.
(Hansard, 18 November 2003, p 4248)
[Eemphasis added].
He also said:
The bill I introduced today does not create a new right of action against a public authority on the ground that conduct is inconsistent with human rights as recommended by the consultative committee. My government considers that at this time creating a new right of action would not be appropriate. However, an action that is allegedly based on an incorrect interpretation of the law will be open to judicial review and administrative law remedies. These remedies are already available.
(Hansard, 18 November 2003, p 4249)
[Emphasis added].
In the 12-month review report prepared by the Department of Justice and Community Safety dated June 2006 a recommendation was made to introduce a direct right of action based upon the then recently adopted Victorian model.
Recommendation 6: The Government should examine options for amending the HRA to include a direct duty on public authorities to comply with human rights and a direct right of action. Any proposal will need to address the scope of the duty and the sanctions, if any, for breach. These should be subject to a bar on any new right to compensation arising from breach, following the model recently adopted in Victoria.
At that time s 39 of the Charter of Human Rights and Responsibilities 2006 (Vic) provided:
Legal proceedings
(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.
(2) This section does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right—
(a) to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and
(b) to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.
(3) A person is not entitled to be awarded any damages because of a breach of this Charter.
(4) Nothing in this section affects any right a person may have to damages apart from the operation of this section.
(As a model to be followed, s 39 was not without its own difficulties: see J Gans “The Charter’s irremediable remedies provision” (2009) 33(1) Melbourne University Law Review 105.)
However, the terms of s 40C(5)(b) are consistent with the subsequent decision in Morro if it is part of the ratio of that decision that a freestanding right is provided under s 18(7). As the decision in Strano makes clear, whether that proposition is part of the ratio of the decision is controversial: see Strano at [21]-[30].
The legislative history of the bill that became the 2008 Amending Act does not indicate that there was any recognition of, or support for, the implication that might be drawn from the inclusion of the note or the terms of the explanatory statement.
The bill was referred to the Standing Committee on Legal Affairs (performing the duties of a Scrutiny of Bills and Subordinate Legislation Committee). Report 50 of the Committee (4 February 2008) referred to the proposed s 40C(4), which provided that the Supreme Court may grant the relief it considers appropriate except damages. The Committee recorded:
The Committee draws attention to these provisions and notes that there are quite divergent views on the issue of whether the Supreme Court should or should not be permitted to award damages simply on the basis that there has been a contravention of a human right (as stated in the Act) in the performance of some action by a public authority.
The government’s response to this is recorded in the Committee’s Report 51 (3 March 2008) in which the then Attorney-General stated:
I note the committee’s comment that there are quite divergent views on the issue of whether the Supreme Court should or should not be permitted to award damages for a breach of duty to comply with human rights. I believe that it is not appropriate, given this divergences of views, for the Court to be permitted to award damages for a breach of the duty to comply with human rights. The amendments do not, however, affect any existing right to damages.
During the course of the Legislative Assembly debates upon the bill which became the 2008 Amending Act there was no reference to the possible operation of ss 18(7) and 23 in the context of proposed s 40C(5)(b). In his presentation speech the Attorney-General said (Hansard, 6 December 2007, page 4030):
I turn to the issue of remedies. In line with the recommendation of the 12-month review and the Victorian Charter, damages will not be available for a breach of the Human Rights Act. Rather, a finding of a breach could, for example, be a basis for setting aside an administrative decision or for a declaration that the public authority’s actions breached were not in compliance with human rights. [Sic]
The Leader of the Opposition (Mr Seselja), who opposed that part of the bill which introduced Part 5A, said during the debate in principle that individuals could start proceedings in the Supreme Court against a public authority and continued (Hansard for March 2008 page 381):
In such cases, the Supreme Court will grant relief but not damages.
The provision does not prevent individuals from pursuing other legal avenues should they wish to seek damages.
Later in his speech he referred to the report of the Standing Committee on Legal Affairs and the response by the Attorney-General set out above.
Mr Mulcahy, by then an independent member of the Assembly, said (Hansard 4 March page 399):
I had some lengthy discussion with my advisers in relation to the matter of remedies. I have been persuaded to the view that damages are not appropriate. I would contend that it is more appropriate, for example, that a breach of the act could lead to the setting aside of the administrative decision or a public notification of a breach. We must be very cautious about turning the ACT into a choice of venue for litigation. I believe that not making the remedy of damages available for this sort of breach of voids this issue.
Later in his speech he said “I do not believe that damages are appropriate.”
In his speech in reply in the Attorney-General said (Hansard 4 March 2008 page 393):
As members have pointed out, the legislation does not create any new remedies. It does not give the Supreme Court powers it does not already have. The court can only grant a remedy which is already within its power. For example, it may quash an unlawful decision or order a public authority to take or not to take proposed action. It cannot, however, awards [sic] damages for a breach of human rights. The government does agree with the committee’s comments on this point. There is a lack of consensus on whether damages should be awarded for a breach of human rights. The government believes it would not be appropriate, however, given this divergences of views, for the court to be permitted to award damages for a breach of duty to comply with human rights.
The debate in detail did not contain any remarks relevant to the present issue.
It is notable that in the speeches there is no reference to:
(a) the note at the end of s 40C(5)(b);
(b) the possibility that there may be any capacity for the Supreme Court to make a monetary order against a public authority outside the scope of the proposed pt 5A;
(c) any change of position in relation to the Act in its unamended form to that which was expressed by the Chief Minister in his remarks when the bill that became the Human Rights Act 2004 was originally introduced (referred to above).
Had the only provision been that in s 40C(4) then the natural interpretation of the Act after the 2008 Amending Act would have been that any remedy for a breach of the rights articulated in the Act would have to be one which did not itself involve the award of damages. That would mean that, consistently with the intention of the Chief Minister expressed in relation to the Act in its original form, s 18(7) would not have been able to have been directly enforced. That would have the effect of encouraging claimant’s to exercise the undoubted common law rights in the first instance. However, the existence of s 40C(5)(b) makes the more natural reading of the Act in its amended form one which permits the rights stated in the ss 18(7) and 23 to be directly enforced without regard to whether or not there is an overlapping common law right. That is because of:
(a)the reference in s 40C(5) to “apart from this section” as opposed to “apart from this Act”; and
(b)the terms of the note after paragraph (b).
It is really the note which gives force to the contention that the Act, read as a whole, requires that ss 18(7) and 23 provide freestanding rights. The note constitutes extrinsic material which must be weighed against the other extrinsic material from Hansard which is indicative of the intention of the Legislative Assembly at the time of the original Act and the 2008 Amending Act.
The decision in Strano was handed down after judgment was reserved in the present case. The submissions of the parties did not address in detail the obvious tension which exists between the terms of the note to s 40C(5) and the legislative history which I have referred to above. Further, the parties did not address the consequences that might arise if a cause of action existed against individual police officers under s 18(7) for unlawful arrest or detention in circumstances where the cause of action was not one in tort and hence the police officers would be personally liable without the benefit of s 64B of the Australian Federal Police Act. Having regard to the conclusion which I have reached above in relation to the scope of s 18(7) and the conclusion that I reach below in relation to the quantum of any compensation that would be payable if there was a freestanding cause of action, it is not essential that I express a concluded view as to the operation of s 40C and I do not do so.
Would any compensation under s 18(7) be greater than common law damages?
On the assumption that the plaintiff established an entitlement to compensation under s 18(7) I do not consider that, in the circumstances of this case, the plaintiff is entitled to any compensation beyond that which he is entitled to in relation to his claim in negligence. The plaintiff contended that the fact that the rights included in the HR Act meant that when considering the damages to be awarded those damages should include both compensation and vindication. In Morro at [48] Gray J noted that a public law vindication may not be required where that is achieved through a common law remedy.
In my view, on the assumption that s 18(7) provides a freestanding entitlement to damages, there is no reason why common law damages are not appropriate vindication of the plaintiff’s rights. While s 35 does involve a significant qualification of the plaintiff’s entitlement to damages, there is nothing in s 18(7) which indicates that adequate compensation must be compensation equivalent to that available at common law for a tort unmodified by any statutory provision. If something more was required, in a case decided by a reasoned judgment as opposed to an unspeaking jury, the vindication provided by the published reasons for judgment should not be ignored: cf Hook at 1024. If something more formal was required then that might be more appropriately achieved by a remedy under pt 5A of the HR Act than by an increase in damages. No such order was sought in the present case.
In the present case either:
(a)the plaintiff’s rights to compensation will be satisfied by payment of compensation pursuant to his common-law cause of action; or
(b)the plaintiff’s entitlement to compensation pursuant to any freestanding right in s 18(7) will not involve a payment greater than he is to receive as a consequence of his common-law cause of action.
Orders
The orders of the Court are:
1. Judgment be entered for the plaintiff in the sum of $2,453;
2. The proceedings are listed for any argument in relation to costs on 16 December 2016 at 11:30 am
3. The parties must by 13 December 2016 file and serve:
i.an outline of submissions in relation to costs not longer than three pages including the terms of the costs order sought; and
ii.any evidence to be relied upon in relation to costs.
| I certify that the preceding two hundred and sixty-one [261] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 30 November 2016 |
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