Ruddock & Ors v Taylor

[2004] HCATrans 390

[2004] HCATrans 390

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S542 of 2003

B e t w e e n -

PHILLIP RUDDOCK

First Applicant

KAY PATTERSON

Second Applicant

COMMONWEALTH OF AUSTRALIA

Third Applicant

and

GRAHAM ERNEST TAYLOR

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 2004, AT 9.31 AM

Copyright in the High Court of Australia

__________________

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear for the applicant with my learned friend, MR G.T. JOHNSON.  (instructed by  Australian Government Solicitor)

MR C.J. BIRCH, SC:   May it please the Court, I appear with my learned friend, MR D.P.M. ASH, for the respondent.  (instructed by Teakle Ormsby Conn Lawyers)

GLEESON CJ:   Yes, Mr Solicitor.

MR BENNETT:   May it please the Court.  The issue in this case is whether a Minister administering the Migration Act is liable for the tort of false imprisonment when he or she cancels a visa, the person is detained as an unlawful non‑citizen and the decision to cancel the visa is ultimately set aside with retrospective effect.

GLEESON CJ:   That sounds like an important issue from your clients’ point of view.  Is the application accompanied by any undertaking in relation to costs?

MR BENNETT:   Yes, your Honour, we proffer the usual undertaking that we would pay the costs of the appeal in any event.

GLEESON CJ:   And not seek to disturb the orders for costs below?

MR BENNETT:   That, I would submit, is not a necessary part of the normal undertaking.

GLEESON CJ:   This is an issue of general importance to your clients but of no general importance to your opponent.

MR BENNETT:   That is so, your Honour, and that is a reason why the undertaking is proffered.  The logic of the undertaking does not extend to the second limb which your Honour refers to.

KIRBY J:   Logic may not but the justice may.

MR BENNETT:   Well, it may not, your Honour.

KIRBY J:   You are bringing a person who has gone through the judicial process, who got the matter at trial, went to the Court of Appeal and now you want to bring it up.  There are, it seems to me arguable, two points of principle, but you have an ordinary citizen who would not be with very many means and if you want to have these things examined by the Court, it does not seem unreasonable nor unusual for the Court to say you have to leave undisturbed the costs orders below and pay the costs in our Court.

MR BENNETT:   Your Honour, my submission is that the logic of that reasoning does not extend to not interfering with the orders for costs below, but it is a matter for the Court.

KIRBY J:   It is very often done.

MR BENNETT:   I offer the undertaking in the full form in view of what the Court has said.

GLEESON CJ:   Thank you.

MR BENNETT:   Do your Honours not wish to hear me further?

GLEESON CJ:   Yes.  That issue as you formulated it, as I would understand it, does not in any way depend upon the course of a decision in this Court in relation to this respondent’s case and then Shaw’s Case.

MR BENNETT:   No, your Honour, it does not.  I accept very peripherally on one very minor aspect, but as a general matter not, no.  So there are two questions, your Honours.  The first is whether the imprisonment was relevantly false or wrongful, and we simply say section 189 makes it clear that the criterion for detention is the reasonable suspicion of the officer, true or false.

GLEESON CJ:   I just want to get one aspect of the facts clear, Mr Solicitor.  As I understand it in relation to the first period of detention, the decision of the Minister to cancel the visa was set aside by consent.

MR BENNETT:   Yes, your Honour.

GLEESON CJ:   On what ground?

MR BENNETT:   That does not appear from any of the evidence.

GLEESON CJ:   I saw a reference to procedural irregularity somewhere but I may have ‑ ‑ ‑

MR BENNETT:   I think someone surmised that at some point in it.

KIRBY J:   It would not just be surmise.  I mean, we did not come down in the last shower.  These cases are very hard fought, and surmising is not something that the Minister has been prone to do.  There would have been a very good reason why Justice Callinan made the order by consent.

MR BENNETT:   The only evidence is that the order was made by consent for prohibition and certiorari.

GLEESON CJ:   In any event, if the decision as it presently stands against you is correct, any time a decision to cancel the visa is set aside on any ground, if the decision has resulted in the detention of the person in question, there is a cause of action for false imprisonment.

MR BENNETT:   That is so, your Honour.

KIRBY J:   My recollection – because I had the second application - was that the case went before Justice Callinan and his Honour indicated that he was minded to set the order aside or to grant the order nisi and he gave short reasons for that.  Then it went away and a consent order was made subsequently.

MR BENNETT:   On the first occasion.

KIRBY J:   Yes, and then the matter came back to me after the respondent was arrested and that arrest was, as it were, a new action.  So that there are two different foundations for the detention of the respondent.

MR BENNETT:   There is no doubt of that, your Honour, but on each occasion there was a writ of certiorari which is retrospective.  On each occasion I have to accept that he was not, as we now know, an unlawful non‑citizen because, the visa cancellation being void, there was a visa in force and therefore he was not an unlawful non‑citizen.  We say on both occasions an officer reasonably suspected that he was an unlawful non‑citizen, and that is sufficient.

KIRBY J:   Yes, I understand the argument.

MR BENNETT:   The analogy, your Honour, is this, if I can just – in the criminal law, if a person is detained in the ordinary course pending trial and ultimately acquitted, that is not sufficient for an action of false imprisonment.

GLEESON CJ:   No, you do not have an action for false imprisonment every time a Court of Criminal Appeal quashes a conviction.

MR BENNETT:   Precisely, your Honour.  This is analogous but ‑ ‑ ‑

GLEESON CJ:   We thought we would be assisted by hearing from the respondent.

MR BENNETT:   If your Honour pleases.

GLEESON CJ:   Yes, Mr Birch.

MR BIRCH:   Your Honours, I understand I should not take time on the issue of our protection for costs.

GLEESON CJ:   No.

MR BIRCH:   Can I just say in answer to the questions about what happened in regard to the first application, when the matter came before the Full Court Justice Callinan set out briefly what had, in fact, happened before him in paragraph 355 at page 508 of the decision in volume 207, which was that:

I heard an application . . . I then indicated that I would, subject to the clarification of one factual matter, be minded to grant an order nisi on the ground of a breach of the rules of natural justice but not on any ground of unreasonableness.  I adjourned the matter . . . The respondent in those proceedings consented to orders of the kind that I had been minded to make.  Accordingly on 12 April 2000 I made orders absolute by consent in favour of the prosecutor, who was then released ‑ ‑ ‑

GLEESON CJ:   We have held that a denial of natural justice can result from sheer accident without any kind of fault on the part of the decision‑maker.  It can result, we have held, from an administrative failure within a department to produce certain papers to an administrative decision‑maker.  Is it your submission that any time a visa is cancelled in circumstances where there has been a denial of natural justice and detention follows, there is a cause of action for false imprisonment?

MR BIRCH:   All other things being equal, yes.  We rely upon the principle that this has not been a tort which has ever depended upon proving fault.  While detentions in the migration context might be a relatively new area for the tort, the many decades of its application to police conduct have reaffirmed.  There have been many cases your Honours would be well aware of where policemen have not been acting other than bona fide but they, for whatever reason, have failed to make a lawful arrest or failed ‑ ‑ ‑

KIRBY J:   We have seen your reference to authority there.  It seems to me that there is a point to be argued.  I am far from being decided on the point, but it is an important point.  It is just the answer to the Chief Justice’s question indicates that in default of legislation, assuming such legislation could overcome the just terms provisions, there is an important point of the common law to be decided.

MR BIRCH:   Your Honour, there are two issues, I suppose.  On the general issue, we say that to succeed, what the Commonwealth would need to achieve would be a finding from this Court that the law of false imprisonment, contrary to what had been previously understood, now permitted as a defence establishing bona fides or a lack of fault in some fashion.

KIRBY J:   Did you not point out that there are some American cases that give some support to that?  I think the Solicitor might have pointed that out.

MR BIRCH:   Certainly the quite recent English authorities have emphatically affirmed that it is a strict liability tort, and that has certainly been the view that this Court has taken historically to the matter.  It would be a radical departure and a substantial rewriting of that tort.

KIRBY J:   On the other hand, to attach consequences to an oversight or technical mistake is to put a very, very high price and cost on liberty.  I suppose that is what you say the common law does.

MR BIRCH:   Indeed.  One also has to distinguish between a tort which yields damages for economic loss where those sort of protections for bona fide conduct or lack of negligence may be appropriate and an interference with liberty where there is a loss suffered by the person who is imprisoned.  The question is whether that loss should be suffered by the innocent plaintiff who is detained or whether the loss should be suffered by the person who detained them, even if they themselves were acting bona fide.

Can I also raise a second special leave issue which I have to admit has not been articulated in the submissions.  It is concerned with the amendments made in 2003 to section 196.  One of the central issues if the case was to be heard before a Full Court would be whether the proper construction of section 189 can provide some form of defence in any event, leaving aside the possibility of the law being declared to require fault.  Section 196 of the Migration Act now includes a provision – should I hand up copies to your Honours?  I apologise for not having had them provided in the proper course.  Subsections (4) and (4A) which are now in the Act in effect declare a detention in circumstances such as my client’s detention to be a lawful detention.  That is what we would submit is the effect of those provisions.

KIRBY J:   Is there a precedent for Parliament declaring to be lawful that which is said by courts to be unlawful?

MR BIRCH:   Your Honour, I do not think anyone suggests that this could apply to Mr Taylor himself but it would possibly apply to people who were detained after these provisions commenced.  I noticed, and was alerted to it only by rereading Justice McHugh’s decision in the Al‑Kateb Case in the last day and he refers to these amendments, notes that they were not relevant in the Al‑Kateb Case and notes that the day may come when their constitutionality may need to be considered.

GLEESON CJ:   What do you say is the effect of this, assuming it is valid?

MR BIRCH:   The effect of this is that if these cases arise in the future, they will arise in a context which involves subclauses (4) and (4A).  They are the provisions which may well affect any decision of the Court regarding the Minister’s liability in the future.  If you grant special leave in Mr Taylor’s case, you will really be deciding the issue in regard to what is probably only a small category of cases, if any, and will still leave unresolved the question, if there be, for example, a finding in Mr Taylor’s favour, whether the Minister would nevertheless now be entitled to win on a case in which (4) and (4A) were applicable.

KIRBY J:   You say we would be wasting our time because there is now a new regime enacted by the Parliament and, if it is valid, it will cover all future cases, or most future cases unless there is something in the pipeline.

MR BIRCH:   Indeed.  So, rather than granting special leave in our case, the appropriate course ‑ ‑ ‑

KIRBY J:   You say we should hold our anxiety and wait until we get a section 196(4) case?

MR BIRCH:   Correct.  That is the point.  Your Honours, if you were nevertheless prepared to consider this case despite those statutory amendments, it would be our submission that the only real prospect of success would rest upon a substantial rewriting of the law.  It really involves a policy decision.  It would involve the Court deciding that the requirements of administrative efficiency were sufficient to justify a change to a long-entrenched rule that protects the liberty of citizens.

KIRBY J:   I suppose you can say on that that section 196, whether valid or not, shows that with a little bit of thought Parliament can endeavour to overcome the problem which is presented by this case.

MR BIRCH:   Indeed.  It is a classic example where, in choosing to strike a balance between liberty on the one hand and administrative efficiency on the other, the question is one that should be struck by the legislature.  The Court, once it looked at the matter carefully, would almost certainly conclude that what it was being invited to do by the Commonwealth was to decide the case on what was essentially a purely policy ground and that that was not an appropriate basis and the Court would dismiss it.

KIRBY J:   You understand from the concession made by the Solicitor that there is no point that would come up to us concerning the consequences of Shaw’s Case on the validity of your case which was decided at a time when Re Patterson was thought to be the constitutional principle.  There is this view.  Justice McHugh mentioned it in Coleman v Power that when the Court declares the constitutional interpretation and, as it were, declares it finally, that that is taken to have spoken for all time and that in this matter the Court has spoken with different voices at different times but Shaw now rules. Therefore, if that is the rule and that speaks for all time, at least arguably I could understand a possible argument that that undermines the foundation of your case even though at the time it was brought it was within the understanding of the Constitution as expressed by the Court in Re Patterson.  I rather took it from the Solicitor that he is not running that argument.  Is that your understanding?

MR BIRCH:   For the Solicitor‑General’s part, we understand that they no longer need to or wish to press any issue that was decided by Shaw.  For our part, of course, an issue inevitably arises that if they were given leave that we would be contending that the decision in Ruddock v Taylor, the earlier decision of the Full Court, created some form of res judicata or issue estoppel which ‑ ‑ ‑

KIRBY J: But can it do that against the Constitution. That is the point Justice McHugh raised in Coleman v Power.  He outlined arguments in Coleman v Power both ways but came down himself to the view that you cannot, that the Constitution is the Constitution and it speaks and that is it. I do not want to open a wound, especially in this matter where the Solicitor had a mighty victory in Shaw’s Case, needlessly.  Perhaps we ought to get clear whether this is going to be in play because if it is not in play, we just put it to one side and then there is this other question.

MR BIRCH:   For our part, your Honours, it remains in play to this extent ‑ ‑ ‑

KIRBY J:   You might wish to argue that Shaw is wrongly decided and the Court should go back to Re Patterson.  By the time the case comes on there, I do not know that that would help you.

MR BIRCH:   Your Honour, we would face some serious obstacles in inviting the Court to overrule or reverse the Shaw decision.

KIRBY J:   You would not with me.

MR BIRCH: We might with many other members of the Court as well. Having not pursued the matter fully but having looked at it, we would not accept that the earlier Full Court decision is of no effect so far as the rights specifically of Mr Taylor are concerned. I would accept that as a general proposition the determination as to what the Constitution means is a declaration of the Court for all time, so anyone in Mr Taylor’s position at any relevant time who now comes forward is naturally governed by the decision in Shaw.  We do not necessarily accept that we can get no value from the determinations that were made in favour of our very client by the Full Court.  To that extent we will be raising a res judicata, issue estoppel defence if the appeal was to be given special leave.

GLEESON CJ:   But the issue was whether or not the cancellation of the visa was valid.  Why could not the Minister cancel his visa tomorrow again?

MR BIRCH:   Your Honour, that is in part the very question that I am dealing with.  We would wish to argue that there has been a determination that the Commonwealth does not have the power to do that in regard to Mr Taylor.  It may be that in regard to every other citizen or every other relevant non‑citizen it could now do it because of the Shaw decision, but we wish to argue that Mr Taylor ought not to suffer the jeopardy, having litigated it through to the Full Court, of now in effect being told that he is in jeopardy of the government acting contrary to the way the Full Court decided it could not in his very own case.

Whether this involves a straightforward application of the doctrine of res judicata or issue estoppel or whether it would depend upon us developing an argument to the effect that he simply should not as a matter of fairness be subjected to this repeated action when there has already been a final determination is something that would have to await an occasion when it needs to be developed.

GLEESON CJ:   I notice that the second of the special leave questions identified by the Minister on page 100 of the application book is exactly this point.

MR BIRCH:   As we understood it, the real issue – when the special leave application was made, Shaw had not been decided.  What we understood was being done by the Minister was to raise the correctness of Taylor v Ruddock as a general issue.  After the submissions in‑chief of the applicant were filed, Shaw was delivered, as I understand it, and we adverted to Shaw in our response and it is being mentioned in reply.  So in effect the special leave application has been overtaken by events.

GLEESON CJ:   Shaw had not been decided when the Court of Appeal gave its decision in this matter.

MR BIRCH:   Correct.  The law when the Court of Appeal decision was handed down was the law as declared in Taylor v Ruddock.

GLEESON CJ:   On this aspect of the case, although the outcome in the Court of Appeal might have been correct, the reasoning cannot apply any longer.

MR BIRCH:   We have argued that all of the judges in the Court of Appeal rested their conclusion on grounds which did not depend upon the constitutional issue.

GLEESON CJ:   You might be right about that but, amongst other things, they relied upon the decision in Re Patterson; Ex parte Taylor.

MR BIRCH:   They did refer to it.  They placed some reliance upon it.  On the other hand, we say it was not a central reliance and it was really by the way rather than a crucial part of the reasoning.

KIRBY J:   I am beginning to see what you are saying.  As I understand it, you are saying that the decision in Re Patterson now presents to you the possibility, if this is in Shaw, that you would face if special leave were granted an argument in this case which you would wish to reserve on the res judicata point to a time separately from this challenge to the damages matter in a matter more fundamental and important, namely your right to stay in Australia by reason of the decision in the High Court in Re Patterson and that that decision rested not in part on the consent order, not just on the determinative order which was made after your client was rearrested and detained and that therefore you should not have to face in this case the issue which may arise later if the Minister does take the course of acting on the Shaw principle in your case.

MR BIRCH:   Just so I am clear, the Chief Justice said to me could the Minister now cancel the visa again.  Our response is no, but then the reasoning behind that rests upon the benefit we obtain from Taylor v Ruddock.  We could and would use that benefit whether it was in regard to

defending this appeal if leave were granted or if it was defending a fresh application to deport Mr Taylor were the Minister to attempt to do that some time in the future.  We say that there are other circumstances and other possible cases where more general issues, not ones that are specific to Mr Taylor, could be dealt with without the complications which arise from his rather unusual status of having been the person who was involved in the previous Full Court decision.  Thank you, your Honours.

KIRBY J:   Mr Solicitor, what do you say on this issue?  It is in the grounds but you said something in the argument that rather suggested that you were not going to run this point.

MR BENNETT:   The problem is that the Court of Appeal did rely on it as one of the bases for saying that the imprisonment was unlawful but the section had been held not to apply.  We would submit that is not correct.  Re Patterson did not consider the lawfulness of the detention based on a reasonable suspicion.  One can have a reasonable suspicion that an Australian citizen is an unlawful non‑citizen.

KIRBY J:   But in this case the reasonable suspicion was based on the Minister’s view that Mr Taylor was an alien and the High Court held in Re Patterson that he was not.

MR BENNETT:   And there is authority, your Honour, that one can have a reasonable suspicion, although it involves an error of law.  There is Little’s Case ‑ ‑ ‑

KIRBY J:   No, but I am referring to this case.  There is no doubt that the Minister at that time, based on Nolan, took the view that Mr Taylor was an alien and he got the benefit of that as res judicata affecting him in this Court.  Since then the caravan has moved on and Shaw has been decided.  The question is would you be in this Court seeking to, as it were, challenge the principle in Re Patterson as it affected the particular respondent?

MR BENNETT:   Only if my learned friend relies on it, your Honour.  I do not need to.  There were other grounds in Re Patterson on which the decision was set aside and the order was made and the order retrospectively cancelled the cancellation decision.  Ergo the respondent had a visa and ergo he was not an unlawful non-citizen.  That is why I said the issue does not arise.

GLEESON CJ:   But none of this has anything to do with the first period of detention, does it?

MR BENNETT:   No, it does not, your Honour.

GLEESON CJ:   The first period of detention was dealt with on the basis that the detention was unlawful because the cancellation of the visa was the consequence of some kind of denial of natural justice or procedural irregularity.  It had nothing to do with the question of whether he was an alien.

MR BENNETT:   As did, your Honour, all Justices in the second case in addition to the findings which have been effectively overruled by Re Shaw.

KIRBY J:   What do you say about section 196?  That does show that when Parliament wants to, it can turn its attention to solving the problem you want the Court to solve by the way of the common law.

MR BENNETT:   Your Honour, it does not solve this problem.

KIRBY J:   I know it does not solve it in this case, but why should we fiddle around with the common law and, as counsel has said, deal with it in a way that is very different from the way it appears to have been dealt with in the past, introducing notions of fault into the common law, when Parliament has acted as it has in section 196(4)?

MR BENNETT:   We would submit there is no ambiguity in section 196 as it existed before and it means exactly what it still says.

KIRBY J: Why did Parliament act then?

MR BENNETT:   Because of the Al Masri Cases, your Honour.  It was concerned with the Al Masri and now Al‑ Kateb issue, or Al‑Kateb probably made the amendment unnecessary.  It was dealing with that issue; it was not dealing with this issue.  There is no doubt that section 196 has always relevantly provided that if there is a reasonable suspicion that a person is an unlawful non-citizen, the duty arises if the officer knows or reasonably suspects that the person is an unlawful non‑citizen.  That is what we rely on to make the detention lawful.  Then one gets to the second question of causation and so on.

May I just say this.  If my friend wants to raise and argue some sort of issue estoppel or res judicata issue, there is fairly clear authority against him.  There is some discussion by Justice Aickin in Queensland v The Commonwealth about the concept of an estoppel against the Constitution. I can give your Honours the reference.

KIRBY J:   There is an extended passage, as I have said, in Justice McHugh’s reasons in Coleman.  I think I said I was inclined to agree with Justice McHugh but did not have to in that case.

MR BENNETT: Yes. Your Honour, even in relation to statute short of the Constitution, there is a case, copies of which I can hand to your Honours, called Commissioners of Taxation v Phillips 17 NSWSR 641 where there was a deduction held to have been wrongly disallowed and the taxpayer claimed a deduction in the following year.  The question was whether there was a relevant estoppel against the Commissioner.  The Full Court held that there was not.  At page 644 the Chief Justice says this in the middle of the page:

If the respondents are right in their present contention, this taxation statute has acquired a special conventional meaning as applied to them, which may, when the matter is investigated, be found different from that which is applicable to all other taxpayers.

What my friend is saying is we can now deport every British paedophile that we want but we cannot deport this one.

GLEESON CJ:   The Constitution has acquired a special conventional meaning.

MR BENNETT: Yes. Even the ordinary law of estoppel does not have that effect; a fortiori where the Constitution is involved. In a sense that is not the major issue in the case for the reason I gave, that on both occasions the Minister’s decision was set aside on other grounds. The only reason it is relevant is that the Court of Appeal said one reason why the imprisonment was false was the decision in Re Patterson and the aspect concerning people who were both non-citizens and non-aliens.

GLEESON CJ:   Would section 78B notices be necessary?

MR BENNETT:   They would, your Honour, on that issue if my friend sought to argue it.

GLEESON CJ:   We cannot wait until we see what he seeks to argue.

MR BENNETT:   No, we cannot.  I think we would issue a protective one in any event, your Honour, at that point.

KIRBY J:   The matter is not going to be rendered redundant by any executive action against the respondent pending the hearing and determination by the Court.

MR BENNETT:   Your Honour, it would not render it redundant if we were to take executive action because the judgment for damages could no doubt be pursued from England as easily as it could here.

GLEESON CJ:   He now has a judgment for damages for false imprisonment, for two lots of wrongful imprisonment.

MR BENNETT:   Yes.

KIRBY J:   We would not want to get into the position that arose in the BLF Case of a challenge to interfering with the matter whilst it was before the Court.

MR BENNETT:   But it would not interfere with that.  If he were to be deported to England ‑ ‑ ‑

KIRBY J:   Very substantial way for an ordinary person.

MR BENNETT:   To continue to defend an existing judgment where the undertaking I have referred to has been given.  One would have thought the ordinary person would not need to take any steps at all.  That is not an onerous burden, your Honour.

KIRBY J:   I just express a bit of disquiet about taking the matter up if the respondent is going to be no longer part of our community.

MR BENNETT:   Your Honour, with respect, it just cannot affect a verdict for damages or the defence of it in an appeal.

KIRBY J:   It may not but we stand at a gateway here and it is a question of whether we deal with a matter which is current within the community or not.  We have plenty of cases that are current.  We have a very heavy list with quite a few cases.

MR BENNETT:   A judgment for a plaintiff in money terms is just as current if the plaintiff departs for overseas and if the plaintiff stays here.

GLEESON CJ:   We note what you say about that.

MR BENNETT:   Your Honours, I have no instructions to offer any undertaking in that regard.

GLEESON CJ:   Thank you, Mr Solicitor.  On the undertaking of the applicant to pay the costs of the respondent of the appeal in any event and not to seek an order disturbing the orders for costs made in the courts below, special leave to appeal is granted in this matter.

AT 10.05 AM THE MATTER WAS CONCLUDED