Roddan v Corrections Corporation of Australia Pty Ltd
[2001] WASC 196
RODDAN -v- CORRECTIONS CORPORATION OF AUSTRALIA PTY LTD [2001] WASC 196
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 196 | |
| Case No: | CIV:2533/2000 | 24 APRIL 2001 | |
| Coram: | MASTER BREDMEYER | 1/08/01 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application to dismiss case, dismissed Application to amend defence, allowed | ||
| A | |||
| PDF Version |
| Parties: | LINDSAY GORDON RODDAN CORRECTIONS CORPORATION OF AUSTRALIA PTY LTD |
Catchwords: | False imprisonment Short period of imprisonment 30 - 55 minutes Plaintiff's case arguable |
Legislation: | Bail Act (1982) WA, s 11, s 31, s 32 Court Security and Custodial Services Act 1999 (WA), s 32(1) |
Case References: | Lamb v Cotogno (1987) 164 CLR 1 Myer Stores Ltd v Soo [1991] 2 VR 597 Walter v Alltools Ltd (1944) 171 LT 371 Ainsworth v CJC (1992) 175 CLR 564 Anderson v Effexseven (1999) 10 ANZ Ins Cas 61-424 Annetts v McCann (1990) 170 CLR 596 Attorney-General v Wentworth (1988) 14 NSWLR 481 Bride v Peat Marwick Mitchell [1989] WAR 383 Burton v Shire of Bairnsdale (1908) 7 CLR 76 Chaffers v Goldsmid [1894] 1 QB 186 Coe v Commonwealth (1979) 24 ALR 118 Cohen v McWilliam (1995) 38 NSWR 476 Commissioner of Police v District Court (1993) 7 NSWLR 503 Commonwealth v Verwayen (1990) 170 CLR 394 Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18 Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714 Craig v South Australia (1995) 131 ALR 595 Dalgety Australia Ltd v Rubin, unreported; SCt of WA; Library No 5485; 24 August 1984 Dawkins v Prince Edward of Saxe Weimar [1876] 1 QBD 499 Day v William Hill (Park Lane) Pty Ltd [1949] 1 KB 632 Deputy Commissioner of Taxation v Heaton (1997) 35 ATR 450 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hamilton v Oades (1989) 166 CLR 486 Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 Houcher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 Howarth v Adey [1996] 2 VR 535 Howden v Truth & Sportsman Ltd (1937) 58 CLR 416 Hubbuck v Wilkinson [1899] 1 QB 86 Inglis v Commonwealth Trading Bank of Australia (1972) 20 FLR 30 Jackamarra v Krakouer (1998) 153 ALR 277 Jackson v Goldsmith (1950) 81 CLR 446 Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520 Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986 Kioa v West (1985) 159 CLR 550 Kyle v Legal Practitioners' Complaints Committee (1999) 21 WAR 56 Lee v Clarkson (1915) 17 WALR 189 Mathaman v Nabalco Pty Ltd (1969) 14 FLR 10 McKechnie v Campbell (1996) 17 WAR 62 Melbourne Port Authority v Anshun Pty Ltd (1981) 147 CLR 589 Metropolitan Bank v Pooley (1885) 10 App Cas 210 Niven v Grant [1903] 29 VLR 102 Packard v Transport Trading Agency Co Ltd (1912) 14 WALR 191 Peruvian Guano Co v Bockwoldt [1883] 23 Ch D 225 Public Service Board (NSW) v Osmond (1986) 159 CLR 656 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Re Bond Corp Holdings Ltd (1990) 1 WAR 465 Remmington v Scoles [1897] 2 Ch 1 Russel v Duke of Norfolk [1949] All ER 109 Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 Smith v McCusker [2000] WASCA 320 Southern Equity Holdings v Phoenix Manufacturing Services Pty Ltd (1996) 65 SASR 563 UFH Holdings Pty Ltd v Ord Minnett Corporate Finance Ltd, unreported; SCt of VIC (Chernov J); Library No BC 9802887; 24 June 1998 Wentworth v NSW Bar Association (1992) 176 CLR 239 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Young v Holloway [1895] P 87 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
CORRECTIONS CORPORATION OF AUSTRALIA PTY LTD
Defendant
Catchwords:
False imprisonment - Short period of imprisonment 30 - 55 minutes - Plaintiff's case arguable
Legislation:
Bail Act (1982) WA, s 11, s 31, s 32
Court Security and Custodial Services Act 1999 (WA), s 32(1)
Result:
Application to dismiss case, dismissed
Application to amend defence, allowed
(Page 2)
Category: A
Representation:
Counsel:
Plaintiff : In person
Defendant : Mr P K Walton
Solicitors:
Plaintiff : In person
Defendant : Jackson McDonald
Lamb v Cotogno (1987) 164 CLR 1
Myer Stores Ltd v Soo [1991] 2 VR 597
Walter v Alltools Ltd (1944) 171 LT 371
Case(s) also cited:
Ainsworth v CJC (1992) 175 CLR 564
Anderson v Effexseven (1999) 10 ANZ Ins Cas 61-424
Annetts v McCann (1990) 170 CLR 596
Attorney-General v Wentworth (1988) 14 NSWLR 481
Bride v Peat Marwick Mitchell [1989] WAR 383
Burton v Shire of Bairnsdale (1908) 7 CLR 76
Chaffers v Goldsmid [1894] 1 QB 186
Coe v Commonwealth (1979) 24 ALR 118
Cohen v McWilliam (1995) 38 NSWR 476
Commissioner of Police v District Court (1993) 7 NSWLR 503
Commonwealth v Verwayen (1990) 170 CLR 394
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714
Craig v South Australia (1995) 131 ALR 595
Dalgety Australia Ltd v Rubin, unreported; SCt of WA; Library No 5485; 24 August 1984
Dawkins v Prince Edward of Saxe Weimar [1876] 1 QBD 499
Day v William Hill (Park Lane) Pty Ltd [1949] 1 KB 632
Deputy Commissioner of Taxation v Heaton (1997) 35 ATR 450
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
(Page 3)
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hamilton v Oades (1989) 166 CLR 486
Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365
Houcher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648
Howarth v Adey [1996] 2 VR 535
Howden v Truth & Sportsman Ltd (1937) 58 CLR 416
Hubbuck v Wilkinson [1899] 1 QB 86
Inglis v Commonwealth Trading Bank of Australia (1972) 20 FLR 30
Jackamarra v Krakouer (1998) 153 ALR 277
Jackson v Goldsmith (1950) 81 CLR 446
Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520
Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986
Kioa v West (1985) 159 CLR 550
Kyle v Legal Practitioners' Complaints Committee (1999) 21 WAR 56
Lee v Clarkson (1915) 17 WALR 189
Mathaman v Nabalco Pty Ltd (1969) 14 FLR 10
McKechnie v Campbell (1996) 17 WAR 62
Melbourne Port Authority v Anshun Pty Ltd (1981) 147 CLR 589
Metropolitan Bank v Pooley (1885) 10 App Cas 210
Niven v Grant [1903] 29 VLR 102
Packard v Transport Trading Agency Co Ltd (1912) 14 WALR 191
Peruvian Guano Co v Bockwoldt [1883] 23 Ch D 225
Public Service Board (NSW) v Osmond (1986) 159 CLR 656
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Re Bond Corp Holdings Ltd (1990) 1 WAR 465
Remmington v Scoles [1897] 2 Ch 1
Russel v Duke of Norfolk [1949] All ER 109
Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275
Smith v McCusker [2000] WASCA 320
Southern Equity Holdings v Phoenix Manufacturing Services Pty Ltd (1996) 65 SASR 563
UFH Holdings Pty Ltd v Ord Minnett Corporate Finance Ltd, unreported; SCt of VIC (Chernov J); Library No BC 9802887; 24 June 1998
Wentworth v NSW Bar Association (1992) 176 CLR 239
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Young v Holloway [1895] P 87
(Page 4)
1 MASTER BREDMEYER: This is an application by the defendant for summary judgment against the plaintiff under Rules of the Supreme Court O 16, or to strike out the plaintiff's action under O 20 r 19 as not disclosing any reasonable cause of action, as scandalous, frivolous or vexatious, or as an abuse of process of the court. In addition, the defendant seeks to amend its defence in terms of a further minute of proposed amended defence of 23 May 2001. The defendant has filed seven affidavits in support. The plaintiff has filed one affidavit in opposition.
2 The plaintiff sues for false imprisonment by the defendant between about 4.15 pm and 5.10 pm on Monday 6 November 2000. A summary of his claim is found in his statement of claim from which I quote:
"3. On Monday 6 November 2000 the Plaintiff was on trial in the District Court in Court 3.1 of the Central Law Courts ('the trial').
4. At the adjournment of the trial for the day, at approximately 4.15 pm on Monday 6 November 2000:
(a) Her Honour Judge Kennedy remanded the Plaintiff on bail on the same terms as previously imposed, to re-appear the following day;
(b) the Clerk of Arraigns provided the Plaintiff with a notice to that effect ('the clerk's notice');
(c) Her Honour directed that the Plaintiff be released forthwith to bail, but that he leave by way of the detention area.
7. The Plaintiff was escorted from the precincts of Court 3.1 to the detention area by one of the Defendant's agents or servants whereupon responsibility for the Plaintiff's release from custody was transferred to another agent or servant of the Defendant ('the custodian').
8. The Plaintiff was subjected to a delay in his release from detention for approximately 10 minutes whereupon at approximately 4.25 pm he produced the Clerk's notice to the custodian and repeatedly requested the custodian to provide his immediate release from detention.
(Page 5)
- 9. Despite the Plaintiff's request, the custodian:
(a) wrongfully refused to release the Plaintiff;
(b) said words to the effect that:
(i) the Plaintiff's requests were futile and that he would only be released when she said so;
(ii) she was not concerned about the Plaintiff's claim that she was in breach of the order of the Court and the Bail Act;
11. Given the matters pleaded in paragraphs 1 to 10, the Plaintiff was wrongfully imprisoned for approximately 55 minutes by the Defendant, its agents or servants.
12. The Defendant is vicariously liable for the actions of the custodian."
3 Paragraph 4(b) of that pleading refers to the clerk's notice. That document has been exhibited to several affidavits. It was on pink paper and, in the affidavits is sometimes referred to as "the pink slip" or "the pink form" and is in this form:
"NOTICE TO DEFENDANT
DEFENDANT : You are advised that your charge(s) has/have been adjourned to the next Criminal Sittings of the District/
Your bail undertaking has been extended.
Your failure to appear or failure to comply with conditions could result in prosecution action being taken against you and/or a warrant being issued for your arrest, or your cash deposit being forfeited."
(Page 6)
- I note that it is not signed and that the date stated therein "7th November 2000" was completed in handwriting. This is the document which the plaintiff handed to the Corrections Officers in the detention centre.
4 The plaintiff's case is, that on the adjournment of the trial on that day, 6 November 2000, at about 4.15 pm he was not in custody. He was on bail and that bail was extended as evidenced by the pink slip given to him by the Clerk of Arraigns (the Judge's Associate). Because Mr Roddan was not in custody, he says he was not required to exit the court via the detention centre. He could have left by the front door. He left via the detention centre because he wanted to recover his car keys in order to drive home. He also wanted to recover his other property, wallet, money, watch etc, all of which had been taken from him when he surrendered to custody during the lunch adjournment. He says he should have only been kept in the detention centre for as long as it was necessary for his property to be given back to him, involving, as it did, the counting out of the property, including the counting of his money ($2,430.20 in cash) and signing for it.
5 The defendant's case is that the plaintiff was in lawful custody. The trial Judge, Kennedy DCJ, had imposed an extra condition on his bail, namely that he come into the court via the detention centre and that he left the court via the detention centre, waiting for a reasonable time, so that the Crown witnesses could leave the court without the possibility of his confrontation with them. The defendant says that, because the plaintiff was in custody, its officers were entitled to satisfy themselves that all his bail conditions had been met before they released him.
6 The first step in resolving this dispute is to examine and determine whether the trial Judge imposed a bail condition and, if so, its precise ambit. I quote from two extracts from the transcript on that day:
"KENNEDY DCJ: There is no jury so we don't need any of those normal conditions, but we need - has he got his surety here? Did he have his surety? It's a continuing - all right, you may not need it. You don't need your surety, so your bail is renewed on the same terms. Ms Boston, there has been apparently some talk about reporting and things of that nature. I know we haven't got a jury, but at this stage I'm concerned about keeping the witnesses and Mr Roddan at a distance from each other, and that's not criticising Mr Roddan. It may well be the witnesses for all I know.
(Page 7)
- All I want is peace in my courtroom and peace in the building and the best way at this - I know this is all 7 years ago, but the best way to ensure that is for them to have different entrances. Unfortunately the only way to ensure that is for Mr Roddan to come in through detention. So his bail conditions are that he reports to detention and that he remain there - and that can change as soon as we are finished with any controversial witnesses, but, until that is done, that is how it's to be. [Emphasis mine.]
...
KENNEDY DCJ: Of course they are because they think I'm doing something to interfere with the freedom of the press. Have a look at that anyway. So my idea is to keep these people as far apart as possible. I'm not saying that either of them are to blame. It may well be that this far down the track nobody will be, but I just want peace in our time and that's to be achieved by keeping them as far apart as possible. She can't really be locked up, so at this stage Mr Roddan is to stay in - when he is here, he is to be in the detention area.
HOBSON, MR: Yes.
KENNEDY DCJ: Whether they can put him in the separate section or not I don't know. I wouldn't have thought he would be regarded as a risk.
HOBSON, MR: If Ms Crimmins was brought through detention, it wasn't put through the books or anything like that. It was just brought through that area.
KENNEDY DCJ: Yes.
HOBSON, MR: That's all it is.
KENNEDY DCJ: All right, yes. So long as we have that organised now and on the record and we will adjourn now until 10 o'clock in the morning.
AT 4.24 PM THE MATTER WAS ADJOURNED UNTIL
TURSDAY, 7 NOVEMBER 2000"
7 Mr Roddan's argument on this is twofold. He says that the Judge's direction was not an imposition of an extra bail condition. It was merely a
(Page 8)
- direction given by a Judge in her inherent power to control the proceedings in her court, rather like ordering a witness or, perhaps, a member of the public, out of the court room for misbehaving in some way. As such, it did not require the paperwork which might otherwise be required for the imposition of an extra bail condition. Secondly, he says that her order only related to coming into the court in the morning. It was prospective. It meant that the next morning, on the Tuesday, he had to enter the court via the detention centre.
8 I am against him on those arguments. I consider the Judge was imposing an extra condition on the terms of his bail. She uses the words "bail conditions". She says: "So his bail conditions are that he reports to detention ... " Her words are not expressed comprehensively, but I would imply that the order related to his coming into the court and going out of the court in the morning, at the luncheon adjournment and a mid morning adjournment, if there was such a thing, and after the rising of the court in the afternoon. I infer all that from her words in the second passage quoted - remembering that the Judge spoke these words at the end of the day: "So at this stage Mr Roddan is to stay in - when he is here, he is to be in the detention area".
9 If the trial Judge had not used the words "bail conditions" I consider the plaintiff has a good argument that the Judge was making an order in her inherent jurisdiction to control the proceedings of her court and was not altering his bail conditions. I note from the same transcript, on that day, in a passage which I have not quoted, Mrs Crimmins was brought into the court through the detention area. She was one of the Crown witnesses. That was an informal arrangement, made, I think, by the prosecutor to ensure that she escaped the press. I assume that the Correctional Officers received no paperwork in relation to it.
10 The defendant says that because the plaintiff's bail conditions had been altered, and because he was in custody, they were entitled to satisfy themselves that he had met the bail conditions before releasing him and here they rely on r 105 of the Director General's Rules made under s 32(1) of the Court Security and Custodial Services Act 1999. I quote r 104 and r 105:
"104 Purpose
This rule provides for the discharge/ release of a person in custody.
(Page 9)
- 105 Requirements
- A person in custody who is to be discharged/ released from custody, shall only be discharged/ released when:
• On expiration of a sentence;
• On bail following an order authorising such release in accordance with the Bail Act 1982after it is confirmed that the conditions relating to the release have been satisfied. (Emphasis mine.)
• On bail subject to the defendant's own undertaking of a surety when stipulated by the court, after it is confirmed that the conditions relating to the release have been satisfied;
• In accordance with an order made under a written law; or
• Where the court directs the person in custody is discharged from the court proceedings.
Despite the provisions of this Rule, a person in custody must not be released if at the time the release could be ordered he or she is by law required to be kept in custody in respect of another matter."
- The defendant particularly relies on the words italicised in r 105.
11 One of the key witnesses for the defendant is Margaret Anne Preston, a Corrections Officer, but who was the Property Officer on duty that day at the Central Law Courts. In her affidavit she says that she was handed the pink slip, that is the notice to which I have already referred, and could not identify from this the bail conditions relating to the plaintiff's release, and she could not confirm that those bail conditions had been satisfied. She asked Mr Roddan for the paperwork that he had been given by the court and he said, expletive deleted, that his bail conditions were the same as before and he did not have to show her anything. She refused to release him. She asked him to wait while she rang the court to confirm it. She turned to Officer Tonks who was present and said to him: "We don't have the correct bail paperwork, can you go back to the court and ask about it." Officer Tonks left the room. A little later, at 4.35 pm, she said to Officer Alannah Meotti that: "I do not have the correct papers to release Mr Roddan" and Officer Meotti said: "I will look into it". Later Ms Preston counted out Mr Roddan's property to him, including the big
(Page 10)
- pile of cash, and handed the property to him and he signed the book at approximately 4.45 pm. He asked to be released at that stage. She declined to release him. She said: "I must have some written proof from the court before I can release you". The plaintiff then took his mobile phone and telephoned his lawyer.
12 Officer Meotti approached Ms Preston and said words to the effect:
"I just received a telephone call from Officer Tonks. He said he had been told that the Clerk of Arraigns said Mr Roddan's bail papers are in order and he can be released. You can telephone the Clerk of Arraigns for confirmation."
- Ms Preston then telephoned the Judge's Associate from Court 31, Janine Howard, and said words to the effect: "We don't have Mr Roddan's correct bail forms". The Judge's Associate said words to the effect: "Mr Roddan has the correct bail form". Ms Preston said: "Aren't there any other forms?" and she said "No".
13 The plaintiff's lawyer, Ms Lisa Boston, then entered the room and spoke with him. Officer Naylor, a Superior Court Coordinator, who was also present, spoke to Ms Boston who told her: "Release him; you have nothing to hold Mr Roddan". Ms Naylor said: "I am not releasing him until I confirm his papers. We have nothing to release Mr Roddan, but I will call my superiors". Ms Naylor then telephoned the defendant's Operations Manager, Andrew Pike. He told her to telephone Arthur Ventham, the defendant's manager of the Metropolitan Courts. Ms Naylor telephoned Mr Ventham and he said: "I know Mr Roddan. I know the situation. Release him". Ms Naylor said: "Are you sure? I don't want this on my head". Mr Ventham said "Yes".
14 Ms Naylor then returned to reception and told Mr Roddan that he could leave. He was released at 5.10 pm.
15 So, in summary, Ms Preston has deposed that she would not release Mr Roddan until she had been satisfied that she had the correct bail paperwork, the correct bail forms and because she could not identify the bail conditions and confirm that he had satisfied the bail conditions. However, after a telephone call from the Judge's Associate that there was no other paperwork, and after advice from Mr Ventham and, after speaking with Mr Roddan's lawyer, she released him without sighting any further paperwork, and without identifying his bail conditions.
(Page 11)
16 What was the correct bail paperwork, or the correct bail forms, which Ms Preston did not have? In her affidavit she said it was the Bail Undertaking which is Form 6 under the Bail Act 1982. The Bail Undertaking form has three parts to it: the Bail Undertaking itself signed by the defendant; the Certificate as to Undertaking signed by the person who read the undertaking to the defendant and who saw him sign; and the Certificate to Authorise Release signed by an authorised officer.
17 How was Ms Preston going to satisfy herself that the bail conditions had been met? In summary, she says in her affidavit that she needed to see the Bail Undertaking with the Certificate to Authorise Release on it. In more detail, her answer is as follows:
"68. At all material times I discharged my duties in accordance with the requirements contained in Order 105 of those rules.
69. I believed from my knowledge of District Court Practice and Procedure and from my training that a person in custody who was to be released from custody should only be released when, if the person was on bail, the conditions relating to the release had been confirmed.
70. Accused persons appearing in the District Court in my experience prior to 6 November 2000 invariably had bail conditions imposed on them, usually time constraints as to when they would leave custody, preventing them from being released from custody until other witnesses or complainants were no longer in the Court premises.
71. In order to confirm that the conditions relating to the release had been satisfied, in respect of accused persons in the District Court I always required documentary evidence of this before I could be satisfied. I did not consider telephone advice sufficient confirmation as I could not be sure who was speaking to me and if that person was who he purported to be.
72. Annexed hereto and marked with the letter 'MAP-4' is 'Form 6 Bail Undertaking' known colloquially at the Central Law Courts Detention Centre as 'the bail papers'.
73. In order to confirm all the conditions relating to the release of any accused on trial in the District Court had
(Page 12)
- been satisfied it is necessary to see both the notation on the Bail Undertaking and that the 'Certificate to Authorise Release' appearing at the bottom of the duplicate form had been executed by the appropriate person, namely the Clerk of Arraigns.
- 74. At no time did the plaintiff, the Clerk of Arraigns in the relevant District Court or the plaintiff's solicitors or counsel ever deliver to me or to anyone else at the Central Law Courts Detention Centre a duplicate Bail Undertaking or a copy containing an executed Certificate to Authorise Release relating to the plaintiff."
18 Ms Preston's affidavit is carefully crafted by someone with a good knowledge of the Bail Act and of r 105, so as to bring her conduct within the ambit of the Act and the rule. The trouble is there is a big gap between her conduct and her reasoned justification for it. She had a duty under r 105 to satisfy herself that the bail conditions had been met, but she never found out what those conditions were. She never sighted the Bail Undertaking which would contain most of those conditions and she never found out that a special condition had been imposed on Mr Roddan by the trial Judge that he was to come in and go out through the detention area. That special condition was not endorsed on that document. (No Bail Undertaking has been produced to me but all the evidence suggests that the special condition imposed by the trial Judge was not recorded on that or any other bail document.) Ms Preston stressed the importance of sighting the Bail Undertaking and, in particular, the last part of it, the Certificate to Authorise Release, to confirm that all conditions relating to the release of the accused had been satisfied; but, in fact, she never sighted it. She released Mr Roddan on the verbal say-so of the Judge's Associate and of Mr Ventham.
19 Ms Preston says that Mr Roddan was logged out on the Court Security Prisoner Movement Sheet at 5.10 pm. She does not say that she released him, although she may have done so. At the same time, the Superior Court Co-ordinator, Judith Mavis Naylor, was present and she said that Roddan could be released. She has sworn an affidavit. She said she released him after speaking by telephone to Arthur Ventham who is the defendant's manager of the Metropolitan Courts. He said: "I know Mr Roddan. I know the situation. Release him." The detailed justification for her actions is set out in pars 29 - 35 of her affidavit and those paragraphs are identical with pars 68 - 74 of Ms Preston's affidavit which I have already quoted.
(Page 13)
20 The defendant's counsel has argued that these correctional officers were justified in not releasing Mr Roddan until they had satisfied themselves under r 105 that his bail conditions had been met and until they had sighted the Bail Undertaking with the signed Certificate of Release. The detailed argument on that by reference to the Bail Act, is as follows. Under s 31(2)(a) the trial Judge was entitled to adjourn the proceedings to another date and had power to grant bail to the defendant, fixing the time and place for the resumed hearing and to notify the defendant orally of that. By s 31(3), where a different time is notified to a defendant under s 31(2), the Bail Undertaking shall be deemed to be amended to specify the new time and place for appearance and the other terms and conditions of the bail shall continue to apply.
21 Where a different time and place has been fixed for the resumed hearing under s 31(2), then, by O 32(1), a written notice of this shall be given to the defendant personally and I consider that the pink slip handed to Mr Roddan was that notice. By s 32(4), the judicial officer who, under s 31(2), notifies the defendant of the time and place for the resumed proceedings shall endorse on the defendant's Bail Undertaking a Certificate showing details of such time and place and that he notified the defendant thereof. I have no evidence that that was done in this case.
22 Much has been made of the need of the corrections officers to sight the Certificate to Authorise Release at the bottom of the Bail Undertaking before Mr Roddan could be released. As previously stated, no such certificate, and indeed no Bail Undertaking, was sighted. Nor has such Certificate or Bail Undertaking been produced to me, and, on the evidence, I consider it unlikely that the Judge or the Judge's Associate signed such a document on the afternoon of 6 November. I remind myself that Mr Roddan was on bail prior to the start of his trial on 6 November.
23 I consider that the legal arguments to justify the actions of the corrections officers are not supported by the facts. As previously stated, none of the corrections officers ever sighted the Bail Undertaking and the Certificate to Authorise Release before releasing Mr Roddan, and they never found out about the special bail condition imposed orally by the trial Judge, and hence they never made enquiries as to whether the witnesses, whom Mr Roddan was not to see, had left the court. They released Mr Roddan on the verbal authority of the Judge's Associate and of the defendant's Manager of the Metropolitan Courts, Mr Ventham. I consider it was probably reasonable for the corrections officers to not act on the bail notice alone. It is a document under s 32(1) but it is not signed and could, I suppose, be forged. I consider the person most likely to know
(Page 14)
- about the terms of bail and the bail conditions was the Judge's Associate, and I consider it reasonable in the circumstances of this case to have checked with that Associate to see that bail was in order. Having done that, by telephone, I consider they should have released Mr Roddan. I consider that the plaintiff has a good argument that, after that phone call was made, he was wrongly kept in custody. I do not know the precise time when that call was made. According to the statement of claim, Mr Roddan says he produced the Clerk's notice to the custodian at 4.25 pm. Ms Preston said she first saw Mr Roddan at 4.30 pm. After some conversation and argument with him she spoke to Officer Meotti at 4.35 pm and to Officer Goble at 4.38 pm. She then said it took seven to ten minutes to return his property, which consisted of a brown wallet, sundry paperwork and cards, US$1.00, one bank card, one driver's licence, one BankWest ATM card, a key on a ring, a mobile telephone, a blue lighter an opened packet of cigarettes, a watch and $2,430.20 in cash. She said it took five to ten minutes to count the cash. After some further conversation and argument, she spoke with the Judge's Associate who told her that Mr Roddan had the correct bail form and that there were no other forms, and, implicitly, that there was no objection to his release. She did not act on that telephone call and at 4.48 pm went to speak to Mr Roddan's counsel, Ms Lisa Boston. So the telephone call to the Clerk of Arraigns was prior to 4.48 pm on Ms Preston's timetable. Different people could have different estimates of time but, on Ms Preston's evidence, let me suppose that the phone call to the Clerk of Arraigns was at, say, 4.40 pm. Then, on my reckoning, Mr Roddan was arguably wrongly held in custody between then and 5.10 pm when he was released, a period of 30 minutes.
24 So far I have been considering the defendant's summary judgment application under O 16. That is combined with an application under O 20 r 19 to have the action dismissed as disclosing no reasonable cause of action or as frivolous or vexatious. I consider the plaintiff's case, on the defendant's own evidence, is arguable that he was unlawfully detained for a period of half an hour or so.
25 I now consider whether the action should be dismissed as frivolous, vexatious, or as an abuse of process. In argument, I asked Mr Roddan why he had bothered to bring this action when, on his own case, the period of wrongful imprisonment was short. In his statement of claim he says it was for approximately 55 minutes. He said, in answer, that, although the time was short, it was important to him. He was on day one of a two or three day trial for a serious criminal offence and was "looking down the barrel" of a four or five year term of imprisonment. Thus, his
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- last, or second last, night of freedom was especially important to him. The unlawful detention shortened that last, or second last, night of freedom. (As it turned out, I am told he was convicted of, I think, a lesser offence or offences and given a non-custodial sentence.) I think Mr Roddan's argument is a good one. The time of the wrongful imprisonment was, arguably, part of his precious last few hours of freedom.
26 The shorter the period of unlawful imprisonment, the lesser the sum of compensatory damages likely to be awarded to Mr Roddan. In addition to compensatory damages, he has asked for aggravated and exemplary damages. Aggravated damages are extra compensation for damage to feelings and dignity. They are compensatory. Exemplary damages in Australia are designed to deter others from engaging in the same kind of reprehensible conduct as the defendant (see Myer Stores Ltd v Soo [1991] 2 VR 597).. The award of those damages marks the Court's condemnation of the conduct (see Lamb v Cotogno (1987) 164 CLR 1).
27 Although the period of wrongful detention was short, I am not willing to dismiss the plaintiff's action as trivial. Wrongful imprisonment, even for a short period, is a serious wrong. The House of Lords in Murray v Ministry of Defence [1988] 2 All ER 521 at 529 said:
"The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable even without proof of special damage."
- That dictum was quoted with approval by the Victorian Full Court in Myer Stores Ltd v Soo, above. In that case Mr Soo had been wrongfully detained by shop detectives in Myer's store for two periods for suspected shoplifting. The first period of false imprisonment in the store's hi fi section is not given in the report, but the second period, in the store's security office, was for one hour. At 603, Murphy J, in the Full Court, said:
"The damages in an action for false imprisonment are generally awarded not for a pecuniary loss but for loss of dignity, mental suffering, disgrace and humiliation. Any deleterious effect on the plaintiff's health would also be compensated."
The Full Court found in that case that the damages were aggravated. The Full Court awarded total damages of $10,000, plus interest. They did not
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- break that down into separate sums for compensatory damages and aggravated damages.
28 In Walter v Alltools Ltd (1944) 171 LT 371, an employee was wrongfully detained in the factory where he worked, suspected of having stolen a tin of paint. He was awarded £100 damages by the trial Judge which was a lot of money in 1943 and that award was upheld by the Court of Appeal. It included an unspecified amount for aggravated damages, because the defendant employer had expressed no regret to the plaintiff for his detention, the employer had never notified the plaintiff's fellow employees that he had been vindicated, and the employer had written a sharp letter to the plaintiff's solicitors maintaining that he had been properly detained. The trial Judge said that if the plaintiff had been treated with tact and courtesy he would have been prepared to award a lesser sum of damages. Lawrence LJ, with whom the other two Justices agreed, said at 372:
"The general principle, in my view, is that any evidence which tends to aggravate or mitigate the damage to a man's reputation which flows naturally from his imprisonment must be admissible up to the moment when the damages are assessed."
29 I consider a mitigating factor in this case which might deprive, or at least reduce, the aggravated and exemplary damages which the plaintiff has claimed, is that, right from the start of his dealings with the custodial officers, the plaintiff abused them with foul language. All five correctional officers who were present on that afternoon, including three female officers, have given evidence of the foul language used towards them by Mr Roddan. That evidence is uncontradicted in his affidavit.
30 I am not willing to conclude that this action has been brought vexatiously or as an abuse of process. As I have said, it is arguable that the plaintiff was unlawfully detained between 30 to 55 minutes on 6 November 2000 on what might well have been his last night of freedom.
31 I propose to dismiss the defendant's application for summary judgment and its application to strike out the plaintiff's statement of claim.
32 In the same application the defendant has asked for leave to amend its defence in terms of a further minute of proposed amended defence of 23 May 2001. In that pleading the defendant sets out in some detail the arguments which it ran before me, namely, that its officers were entitled to detain the defendant until it was confirmed to them that the conditions relating to his release had been met, and/or that they had received the
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- Certificate to Authorise Release as required by s 11(2) of the Bail Act. I consider the defendant is entitled to plead those matters although, as I have said in my reasons above, that is not what the defendant's officers did. They did not ascertain what Mr Roddan's bail conditions were, and hence they could not ascertain if they had been met, and they never got a Certificate to Authorise Release. They simply released him on the oral word of the Judge's Associate and of Mr Ventham. My only query on the minute is in relation to par 4(a)(ii) which says, in summary, that the trial Judge endorsed on the plaintiff's Bail Undertaking a Certificate showing details of the time of the resumed hearing of the trial and showing that the trial Judge had so notified the plaintiff. The defendant is entitled to plead that if it has instructions that that was done. I guess it could ascertain that from the District Court file. There is no evidence before me that that Certificate was so endorsed. I suspect it was not.
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