HUMAN RIGHTS ACT
MORRO, N & AHADIZAD v AUSTRALIAN CAPITAL TERRITORY
[2009] ACTSC 118 (10 September 2009)
CATCHWORDS
HUMAN RIGHTS – unlawful detention – breach of s 18(7) of the Human Rights Act 2004 (ACT) – whether s 18(7) creates an independent statutory right to compensation – Explanatory Statement denies intent to create a new remedy for breach – s 18(7) consistent with the purpose of the Act – extrinsic material not to substitute the text of the legislation – s 18(7) confers statutory right to compensation – public law remedy be treated as co-extensive remedy to common law
TORTS – false imprisonment – unlawful arrest or detention – invalid cancellation of periodic detention
DAMAGES – general damages – compensatory – injury to liberty – humiliation and indignity and hurt to feelings – measure of damages
DAMAGES – aggravated damages – circumstances not warranting aggravated damages
DAMAGES – exemplary damages – conscious wrongdoing in contumelious disregard of one’s rights – circumstances not warranting exemplary damages
Human Rights Act 2004 (ACT), ss 18, 23, 30, 36, Pts 3, 4, 5, 5A, Sch 1
Human Rights Amendment Act 2008 (ACT), ss 7, 30
New Zealand Bill of Rights Act 1990 (NZ), ss 3, 21
Legislation Act 2001 (ACT), ss 139, 140
Crimes (Sentence Administration) Act 2005 (ACT), ss 7, 66, 68, 70, 73, 75, 79, 82A
Crimes (Sentencing) Act 2005 (ACT), ss 4, 10(2), 11, 16
Periodic Detention Act 1995 (ACT), s 26
Human Rights Bill 2003 (ACT) Explanatory Statement
Human Rights Bill 2003 (ACT) Presentation Speech, Hansard 18 November 2003
International Covenant on Civil and Political Rights Opened for Signature 16 December 1966, 999 UNTS 171, art 2, art 9 and art 14 (entered into force 23 March 1976) (ICCPR)
Canadian Charter of Rights and Freedoms, s 24(1)
Laws of Australia (LCB) Vol 33.8 International Torts
Harvey McGregor, McGregor on Damages, (16th ed, Sweet & Maxwell, 1997)
Pollock on Torts, (15th ed, P.A. London, 1950)
Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Minister for Immigration and Ethnic Affairs v Tang Jia Xin (1994) 69 ALJR 8
Harrison v Melhem (2008) 72 NSWLR 380
Taunoa v Attorney-General [2008] 1 NZLR 429
Dunlea v Attorney-General [2000] 3 NZLR 136
Re Bolton; Ex parte Beane (1987) 162 CLR 514
Ruddock v Taylor (2005) 222 CLR 612
Goldie v Commonwealth (No. 2) (2004) 81 ALD 422
McDonald v Coles Myer Ltd (t/as K-Mart Chatswood) [1995] Aust Torts Reports 81-361
Spautz v Butterworth (1996) 41 NSWLR 1
New South Wales v Delly (2007) 70 NSWLR 125
New South Wales v Ibbett (2006) 229 CLR 638
New South Wales v Bujdoso (2005) 227 CLR 1
Lamb v Cotogno (1987) 164 CLR 1
Coyne v Citizen Finance Ltd (1991) 172 CLR 211
Myer Stores Ltd v Soo [1991] 2 VR 597
No. SC 916 of 2007, SC 220 of 2008, SC 535 of 2008,
Judge: Gray J
Supreme…
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- Case
- [2009] ACTSC 118
- Decision Date
CaseChat Overview and Summary
The court was required to determine the scope and effect of section 18(7) of the Human Rights Act, particularly whether it established a statutory right to compensation for breaches of human rights. The court also had to assess the appropriate measure of damages for the injuries sustained by the plaintiffs, including the extent to which general, aggravated, and exemplary damages were warranted.
The court concluded that section 18(7) did indeed create an independent statutory right to compensation for breaches of human rights, contrary to the Explanatory Statement's assertion that it did not intend to create a new remedy. The court held that the statutory right to compensation under section 18(7) should be treated as co-extensive with the common law remedy for torts such as false imprisonment. The court awarded general damages to compensate for injury to the plaintiffs' liberty, humiliation, and indignity, but found that the circumstances did not warrant aggravated or exemplary damages.
The court ordered that Paul Brian Morro be awarded $95,000.00 in general damages, including $6,083.00 for legal costs related to his habeas corpus application. Toorage Andrew Ahadizad was awarded $55,000.00 in general damages, including $4,906.00 for legal costs related to his habeas corpus application. Additionally, Toorage Andrew Ahadizad was awarded $40,000.00 in general damages, including $7,697.12 for legal costs related to his habeas corpus application.
Orders
Orders of the court
THE COURT ORDERS THAT:
Paul Brian Morro
1. Be awarded the sum of $95,000.00 by way of general damages (which sum includes any economic loss sustained by him). The sum of $6,083.00 is allowed for the legal costs incurred in respect of his application for habeas corpus. N
2. Be awarded the sum of $40,000.00 by way of general damages (which sum includes any economic loss sustained by him). The sum of $7,697.12 is allowed for the legal costs incurred in respect of his application for habeas corpus.
Toorage Andrew Ahadizad
3. Be awarded the sum of $55,000.00 by way of general damages (which sum includes any economic loss sustained by him). The sum of $4,906.00 is allowed for the legal costs incurred in respect of his application for habeas corpus.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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