Ruddock v Taylor

[2003] NSWCA 262

Reported Decision: 58 NSWLR 269

Court of Appeal

CITATION:	Ruddock & Ors v Taylor [2003] NSWCA 262
HEARING DATE(S):	04/08/03
JUDGMENT DATE:	18 September 2003
JUDGMENT OF:	Spigelman CJ at 1; Meagher JA at 58; Ipp JA at 84
DECISION:	1. Appeal and cross-appeal dismissed; 2. The Appellants/Cross-Respondents pay 90 per cent of the costs of the Respondent/Cross-Appellant.
CATCHWORDS:	TORT: False imprisonment - Position of executive government - Causation - Damages for false imprisonment - RES JUDICATA: Issue estoppel - reasonableness ADMINISTRATIVE LAW: Ministerial decision making - Automatic or self-executing decisions
LEGISLATION CITED:	Migration Act 1958 (Cth) Supreme Court Rules Pt 1 r 3 Crimes Act 1900 (NSW) Australian Citizenship Amendment Act 1984 (Cth) National Security Act 1939 Civil Liability Amendment (Personal Responsibility) Act 2002
CASES CITED:	Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 at 743 R v Governor of Brockhill Prison Ex parte Evans (No 2) [2001] 2 AC 19 Eshugbayi Eleko v Officer Administraing the Government of Nigeria [1931] AC 662 at 670-671 Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 Re Patterson; Ex parte Taylor (2001) 207 CLR 391 Minister for Immigration v Bhardwaj (2002) 209 CLR 597 Plaintiff S157/2002 v Commonwealth (2003) 77 ALJR 454 Myers Stores Limited v Soo [1991] 2 VR 597 Spautz v Butterworth (1996) 41 NSWLR 1 Cubillo v Commonwealth (2001) 112 FCR 455 Williams v Milotin (1957) 97 CLR 465 at 474 Aitken v Bedwell (1827) Mood & M 68; 173 ER 1084 Dickenson v Waters Ltd (1931) 31 SR (NSW) 593 at 595-596 Pike v Waldrum and Peninsular & Oriental Steam Navigation Company [1952] 1 Lloyd's Rep 431 at 454-455 Davidson v Chief Constable of North Wales [1994] 2 All ER 59 Hutchins v Maughan [1947] VLR 131 at 133 Platt v Nutt (1988) 12 NSWLR 231 at 244-246 Stanley v Powell [1891] 1 QB 86 McHale v Watson (1964) 111 CLR 384 at 388 Re Wakim; Ex parte McNally (1999) 198 CLR 511 Thompson v Commissioner of Police of the Metropolis [1998] QB 498 at 515 Pochi v Macphee (1982) 151 CLR 101 Little v Commonwealth (1947) 75 CLR 94 Marshall v Watson (1972) 124 CLR 640 Webster v Lampard (1993) 177 CLR 598 Veivers v Roberts [1980] Qd R 226 Percy v Hall [1997] QB P24 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Bonnington Castings Ltd v Wardlaw [1956] AC 613 Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 Chester v Afshar [2002] 3 WLR 1195 Chappel v Hart (1998) 195 CLR 232
PARTIES :	Philip Ruddock & Ors v Graham Ernest Taylor
FILE NUMBER(S):	CA 40082 of 2003
COUNSEL:	A: D Bennett QC, SG, R Burbidge QC, G Johnson R: Dr C Birch, D Ash
SOLICITORS:	A: Australian Government Solicitor R: Teakle Ormsby Conn

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	662/02
LOWER COURT JUDICIAL OFFICER :	Murrell DCJ

CA 40082 of 2003

SPIGELMAN CJ
MEAGHER JA
IPP JA

Thursday, 18 September 2003

PHILLIP RUDDOCK & Ors v TAYLOR

FACTS
These proceedings arose from a verdict in the sum of $116,000.00 against the appellants, awarded by Murrell DCJ for the wrongful imprisonment of the respondent by the appellants.

They comprised two appeals: one by the appellants (both Ministers of the Federal Government) on both liability and quantum, and one by the respondent on quantum.

The respondent was born in the United Kingdom in 1956, and arrived in Australia with his family, at the age of nine years, in 1966. On 1 September 1994 he was granted a Permanent Transitional Visa.

On 7 February 1996 he pleaded guilty to several counts under the Crimes Act 1900 (NSW), and was sentenced to gaol for a term of years. This conviction led the first appellant to cancel the respondent’s visa, which decision was made on 4 November 1999. Shortly after the cancellation, he was arrested and detained, ostensibly as an ‘unlawful non-citizen’. He remained in detention until 12 April 2000, when, upon the orders of Callinan J, he was released and his visa restored.

The (restored) visa was then cancelled by the second appellant on 30 June 2000, and on 6 July 2000, the respondent was again taken in detention, and there remained until 7 December 2000, when he was released by an order of the High Court (see Re Patterson; ex parte Taylor (2001) 207 CLR 391).

Upon the determination of the High Court proceedings, the respondent commenced fresh proceedings against the appellants for wrongful imprisonment. He was successful in his claim, and the appellants appealed therefrom.

HELD, dismissing the appeal and cross-appeal:
per Spigelman CJ (Ipp JA agreeing):

1. Once a plaintiff proves actual imprisonment, the onus is on the defendant to establish lawful authority. The executive arm of government is not in a special position in this regard, and must establish that its officers had lawful authority to detain. [3]

2. From the time of each ministerial decision to cancel a visa, the Migration Act 1958 (Cth) operated without the intervention of a discretionary decision. The fact that the consequences of a ministerial decision are virtually automatic is of significance for the liability of the Ministers. [11-12]

3. When the High Court quashed the cancellation decision on the constitutional basis that the power to cancel was not applicable to the respondent, it necessarily decided that any other direct consequence of cancellation constitutionally could not apply to the respondent. Re Patterson; ex parte Taylor (2001) 207 CLR 391, considered. [18]

4. The trial judge was correct to find that detention was an “inevitable consequence” of the cancellation of the visa. [27 et seq.]

5. Damages for false imprisonment cannot be computed on the basis of some kind of applicable daily rate. A substantial proportion of the ultimate award must be given for the shock of arrest. As the term of imprisonment extends, the effect upon the person falsely imprisoned does progressively diminish. Thompson v Commissioner of Police of the Metropolis [1998] QB 498, cited. [49]

per Meagher JA (Spigelman CJ and Ipp JA agreeing):

1. By cancelling the visa, the Ministers immediately exposed Mr Taylor as an apparent “unlawful non-citizen” within the meaning of s. 189 of the Migration Act, knowing their actions would lead to detention and could not lead to any other result. The ministers were the real cause of the imprisonment, and its proximate cause. Their position is little different from what it would have been had they ordered the detention. Myer Stores Ltd v Soo [1991] 2 VR 597, applied. [72]

2. In the absence of some statutory provision, if a defendant wrongfully imprisons a plaintiff he is guilty of the tort, no matter how innocent, ignorant or even idealistic he may be. [73]

3. The result of Taylor’s Case does not invalidate ss. 189, 196 and 501 of the Migration Act. There is no reason to see why they are not perfectly valid quoad unlawful non-citizens, and the relevant head of power is the aliens power (s. 51 (xix)) of the Constitution. [80]

4. An overall requirement of an Anshun estoppel is reasonableness. It does not arise unless it was unreasonable of the party sought to be estopped not to plead the cause of action in question. Port of Melbourne Authority v AnshunPty Ltd (1981) 147 CLR 589, referred to. [82]

per Ipp JA:

1. There are two fundamental questions involved in the determination of causation in tort. The first relates to the factual aspect of causation, viz., whether the negligent conduct played a part in bringing about the harm. The second is a normative one, viz., whether the defendant ought to be held liable to pay damages for that harm. [86-87]

2. Accordingly, for normative reasons, the appellants ought to be held liable to pay damages for the harm the respondent suffered, and it would unjust to hold otherwise. [95]

ORDERS

1. Appeal and Cross-Appeal dismissed;

2. The Appellants/Cross-Respondents to pay 90 percent of the costs of the Respondent/Cross-Appellant.

CA 40082 of 2003

SPIGELMAN CJ
MEAGHER JA
IPP JA

Thursday, 18 September 2003

PHILLIP RUDDOCK & Ors v TAYLOR

Judgment

1 SPIGELMAN CJ: For two lengthy periods of 161 days and 155 days, the Commonwealth of Australia deprived the Respondent of his liberty on the sole basis that he was an alien. The High Court has decided that the Commonwealth was never entitled to detain the Respondent on that basis. Nevertheless, the Commonwealth asserts that it has no civil liability for depriving Mr Taylor of his liberty.

2 The two Ministers who purported to cancel Mr Taylor’s visa, and for whose conduct the Commonwealth accepts responsibility, assert that they had no civil responsibility because the act which they each performed did not in terms require an arrest. The Commonwealth then asserts that its officers, who on each of the occasions ordered the detention of Mr Taylor, were entitled to do so, not because he was a person who was in fact subject to deportation, a proposition which a majority judgment of the High Court refutes, but because each such officer was authorised to detain Mr Taylor on the basis of a reasonable suspicion that he was a person whose detention the Migration Act 1958 (Cth) authorised, indeed required.

3 The protection of the personal liberty of individuals has been a fundamental purpose of the common law for centuries. The tort of trespass in the form of false imprisonment, has been one of the ways in which that protection has been provided throughout that period. Once a plaintiff proves actual imprisonment, the onus is on the defendant to establish lawful authority. The executive arm of government is not in a special position in this regard. It must establish that its officers had lawful authority.

4 False imprisonment is an intentional tort. Liability turns on an intention to detain. Good faith is not a defence. The only defence is lawful authority. (See Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 at 743; R v Governor of Brockhill Prison; Ex parte Evans (No 2) [2001] 2 AC 19 at 26, 27, 29, 35, 42. See also Eshugbayi Eleko v Officer Administrating the Government of Nigeria [1931] AC 662 at 670-671.)

5 The Appellants proceeded on the basis that they had such lawful authority. They were entitled to do so because the High Court had determined that the aliens power in the Constitution extended to non-citizens of British origin who had come to Australia as children, like the Respondent. (Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178.) The Respondent succeeded in having the High Court, by majority, overrule this case. (Re Patterson; Ex parte Taylor (2001) 207 CLR 391.)

6 The Court made an order absolute for a writ of certiorari to quash the second of the decisions to cancel the Respondent’s visa. The first such decision had been quashed by a consent order to the same effect.

7 The Appellants’ position is analogous to that of a prison authority which kept prisoners in custody for longer than the relevant statute permitted and did so in accordance with the interpretation of the relevant statutes determined by the courts which was subsequently overruled. (See Cowell v Corrective Services Commission and R v Governor of Brockhill Prison.)

8 The Appellant had served the sentences imposed upon him for the crimes he had committed before he was subjected to immigration detention. Like the prisoners who had been kept in prison for longer than the law permitted, and who successfully sued for false imprisonment, the Respondent had been punished for his crimes. The protection that the common law has always given to personal liberty has never been conditional on past good conduct or popularity. It is a right given to all.

9 The facts and issues are summarised by Meagher JA whose judgment I have read in draft. His Honour also sets out the relevant statutory provisions, but I will also refer to s191, s196(3) and s501F which provide:

“191 A person detained because of section 190 must be released from immigration detention if:
(a) the person gives evidence of his or her identity and Australian citizenship; or
(b) an officer knows or reasonably believes that the person is an Australian citizen; or
(c) the person complies with section 166 and either:
(i) shows an officer evidence of being a lawful non-citizen; or
(ii) is granted a visa.”

“196…
(3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa.”
“501F(1) This section applies if the Minister makes a decision under section 501, 501A or 501B to refuse to grant a visa to a person or to cancel a visa that has been granted to a person.
(2) If:
(a) the person has made another visa application that has neither been granted nor refused; and
(b) the visa applied for it neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;
the Minister is taken to have decided to refuse that other application.
(3) If:
(a) the person holds another visa; and
(b) that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;
the Minister is taken to have decided to cancel that other visa.”

Authority to Detain

10 The only lawful authority to detain the Respondent, upon which the appellants rely, was the obligation to detain in s189 of the Migration Act 1958 (Cth) (“the Act”). That obligation arises when an officer “knows or reasonably suspects” that a person is an unlawful non-citizen. There was no evidence from either officer as to whether he or she acted on the “knows” or the “reasonably suspects” basis. It was not suggested that anything turned on that. The submissions all concentrated on the “reasonably suspects” limb.

11 From the time of each Ministerial decision to cancel a visa, the Act operated without the intervention of a discretionary decision:

(i) A ministerial decision to cancel a visa under s501 deprives a person of the status of a “visa holder”, as defined in s5 of the Act.

(ii) By s15, if a visa is cancelled, its former holder becomes, “on the cancellation”, an unlawful non-citizen. (The introductory words “To avoid doubt” make plain what would be implicit in the combined effect of s13 and s14. Nevertheless, the operative provision for present purposes is s15.)

(iii) The express effect of s15 is qualified by the fact that a person does not automatically become “an unlawful non-citizen” if, “immediately after the cancellation, the former holder holds another visa that is in effect”.

(iv) Section 189 provides that an officer “must detain” a person whom the officer “knows or reasonably suspects” is an “unlawful non-citizen”.

(v) Section 191 and s196(3) provide that an “unlawful non-citizen” may not be released from detention, unless he or she is granted a visa.

(vi) Upon cancellation of a visa under s501, s501F(3) operates to cancel any other visa, except a protection visa or a prescribed visa. No other visa is prescribed for purposes of s501F(3). A protection visa under s36 of the Act is concerned with refugees and was never relevant to this case.

12 Each step of the legislative scheme is self-executing and the number of “decisions” that may be subject to judicial review is minimised. The fact that the consequences of a Ministerial decision are virtually automatic is of significance for the liability of the Ministers.

13 By reason of the sequence identified above, and particularly by reason of the provisions of s15 and s189, upon cancellation by the Minister of a visa the only inquiry required of an officer, for the purposes of obeying the statutory obligation to detain a person, is whether or not “immediately upon the cancellation” of the visa the person concerned was in fact a citizen or held another visa that was in effect. This inquiry involves no more than a checking process of a character generally described, perhaps ironically in the present context, as merely ministerial.

Effect of the High Court Judgment and Order

14 Although there is no ratio of Re Patterson; Ex parte Taylor, because of differences in the majority judgments, for present purposes the four judgments that constitute the majority are relevantly unanimous. The Appellant’s submissions to this Court sought to characterise that case as being concerned with deportation. In a sense it was. But the legal focus of attention was on s501 of the Act which is concerned with the power to cancel a visa.

15 Each of their Honours in the majority stated that s501 could not apply to the Respondent for constitutional reasons (per Gaudron J at [52]-[53], per McHugh J at [136]; per Kirby J at [260] and [318], and per Callinan J at [377]-[378]). The trial judge held that this conclusion necessarily meant that s189 could also have no application. I agree.

16 Section 15, in terms, applies upon cancellation of a visa. When that occurs, the person becomes “an unlawful non-citizen”. If s501 cannot constitutionally apply to the Respondent, nor can s15. Section 15 covers the field relevantly for present purposes. If the definition of an “unlawful non-citizen” in s15 cannot constitutionally apply to the Respondent, s189 can have no application either. In my opinion, that necessarily follows from the majority judgments in the High Court.

17 Gaudron J, at [53], expressly referred to the provisions of the Act “providing for the detention and removal from Australia of non-citizens” (emphasis added) as “invalid in their application to Mr Taylor”. It appears to me that McHugh J, with whom Callinan J relevantly agreed, intended to encompass the intermediate step of detention when he expressly rejected, at [136], the existence of a power to deport, because a cancellation order under s501 is the essential trigger for s189 as well as for the power to deport. Similarly Kirby J, with whom Callinan J also agreed, although referring only to deportation and removal at [258] and [260], identified the Respondent as being beyond the scope of the aliens power. His Honour’s reasoning would, in my opinion, encompass the intermediate step of detention based on a visa cancellation under s501.

18 When the High Court quashed the cancellation decision on the basis that the power to cancel could not constitutionally apply to the Respondent, it necessarily decided that any other direct consequence of the cancellation could not constitutionally apply to him. In the circumstances of this case, and in the context of the specific statute under consideration, detention was such a direct consequence.

19 On each occasion, once by consent, the High Court quashed the Ministerial decision to cancel the visa by issuing the writ of certiorari. The Appellant submitted that the orders did not have the effect of rendering the detention unlawful. The Respondent replied that the effect of certiorari is retrospective.

20 In Minister for Immigration v Bhardwaj (2002) 209 CLR 597 at [51], Gaudron and Gummow JJ, with whom McHugh J agreed at [63] (see also Hayne J at [152]) said:

“A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.”

(See also Plaintiff S157/2002 v Commonwealth (2003) 77 ALJR 454 at [76].)

21 The position after a court has issued the writ of certiorari, could, if it were possible to do so, be stated in even more emphatic terms. The writ both removes the record of the relevant decision into the court and quashes the decision. It expunges the decision and wipes the slate clean. There never was such a decision in law.

22 At the time that the two departmental decision-makers formed the state of mind under s189 – a reasonable suspicion that the Respondent was an unlawful non-citizen – they acted on the basis that the Minister had cancelled the Respondent’s visa. The two officers were not parties to the proceedings. The Commonwealth accepts vicarious liability for the conduct of the Ministers, as well as for the conduct of the officers. If the Ministers are liable, there is no need to consider the alternative basis of liability for the officers’ decisions.

The Ministers’ Decisions

23 Each Minister purported to cancel a visa under s501 of the Migration Act 1958 (Cth). The contention of the Appellants was that the act of cancellation under s501 is a separate and distinct act from the act of detention under s189. Each act, it was submitted, is done by a different person and involves different considerations, as set out in the sections themselves. Detention cannot occur at all unless an “officer” engages in the distinct process under s189. The Appellants’ submissions concerning the Minister’s liability for the tort conceded that the Ministers were unable to rely on s189.

24 Her Honour’s findings of fact in this regard are as follows:

“[109] When the first and second defendants decided to cancel his visa, the plaintiff immediately became an apparent ‘unlawful non-citizen’ by virtue of s. 15 of the Act. The actions of Mr Crighton and Ms Campbell could only occur because of a cancellation decisions. The inevitable consequence of communicating the cancellation decisions to DIMIA officers was that those officers would act in accordance with their perceived statutory duty and would detain the plaintiff.
[110] … [T]he … DIMIA officer was essentially engaged in a checking process, which, all else being equal, would have the inevitable consequence that the plaintiff would be … detained. There was no scope for the exercise of a discretion to alter the intended outcome of the original and critical administrative decision.”

25 The inevitability of detention appears on the face of the documentation:

(i) Prior to the first visa cancellation the Respondent was advised:

“In the event that the Minister decides that your visa should be cancelled, you will become an unlawful non-citizen.
If you become an unlawful non-citizen s189 of the Migration Act states that you must be detained.”

(ii) The notice of visa cancellation concluded:

“As you are now an unlawful non-citizen you are subject to the detention and removal provisions of the Migration Act 1958.”

(iii) Prior to the second cancellation, the Second Appellant was advised:

“If you were to cancel his visa after having considered any comments he makes, Mr Taylor would from that point of time be detained and subsequently removed from Australia.”

26 The legislative scheme operates in a self-executing manner as identified above. Except in the case of a person who has a protection visa, which was never relevant in the present case, the Act itself cancels all other visas (s501F(3)), declares a person whose visa is cancelled to be “an unlawful non-citizen” (s15) and requires such a person to be detained (s189).

27 The trial judge was correct to find that detention was “an inevitable consequence” of the visa cancellation.

28 Her Honour referred to Myers Stores Limited v Soo [1991] 2 VR 597; Spautz v Butterworth (1996) 41 NSWLR 1; and Cubillo v Commonwealth (2001) 112 FCR 455.

29 In Myers Stores Limited v Soo at 629, referred to with approval in Spautz at 26 and Cubillo at [250], McDonald J said:

“To be liable for false imprisonment it must be the act of the defendant or his agent that imprisons the plaintiff or the defendant must be active in promoting and causing the imprisonment; Aitken v. Bedwell (1827) Mood. & M. 68; 173 E.R. 1084; Warner v. Riddiford (1858) 4 C.B.N.S. 180; 140 E.R. 1052 and Halsbury, 4th ed., vol. 46, paras 1326, 1327. The act of imprisoning a person either personally or by an agent or by being active in promoting and causing the imprisonment thereby is the proximate cause of the imprisonment and is distinguished from the mere giving of information to a police officer or the mere signing of a charge sheet.”

30 The terminology of “proximate cause” is sometimes used in other areas of the law, e.g. insurance, to mean the “dominant” or “effective” or “direct” cause. (See e.g. Halsbury’s Laws of England (4th ed) Vol 25, par 175.) The applicable terminology with respect to the tort of false imprisonment is “direct cause”. (The Australian texts are unanimous on the need for directness. See Balkin and Davis, Law of Torts (2nd ed) Butterworths, 1996, p59; Fleming, The Law of Torts (9th ed) LBC Information Services, 1998, p36; Trindade and Cane, The Law of Torts in Australia (3rd ed) OUP, 1999, p50.) There must be “direct violation of the protection which the law throws round the person” (Williams v Milotin (1957) 97 CLR 465 at 474).

31 In Aitken v Bedwell (1827) Mood & M 68; 173 ER 1084, which McDonald J applied in Myer Stores Ltd v Soo, a captain of a merchant ship in a foreign port had a seaman flogged and imprisoned by the port authorities. Lord Tenderden CJ’s full charge to the jury was:

“The plaintiff contends that what was done on shore was the act of the captain, the defendant says it was the act of the Russian authorities only. The question for you is, Whether the punishment inflicted on shore was done by the constituted authorities, on the mere complaint of the defendant, or whether the defendant was the actor and immediate promoter of it ? If you think the defendant merely preferred his complaint, and left the constituted authorities to act as they thought fit, the defendant is entitled to your verdict; if, on the other hand, you think he did more, and was active in promoting and causing the punishment to be inflated, then he is answerable in this form of action.” (Emphasis added)

32 The italicised words indicate that the Lord Chief Justice’s concluding reference to “promoting and causing” should be understood in terms of whether the trespass by way of battery and imprisonment was, as a matter of substance, the act of the captain. In Myers Stores v Soo, O’Bryan J at 616, referred to the formulation “actor and immediate promoter” from Aitken v Bedwell and posed the issue in terms of whether “an act of [the instigator] caused the unlawful imprisonment”. In the event his Honour concluded that on the facts of that case the instigator participated with certain police officers in “a common design to detain” the plaintiff.

33 It is not the case that an act indicating a wish or expectation that another should be imprisoned establishes liability for the tort. There will be such liability if the person who ultimately confines the plaintiff would not have acted at all but for the urging on the part of another. (See e.g. Dickenson v Waters Ltd (1931) 31 SR (NSW) 593 at 595-596; Pike v Waldrum and Peninsular & Oriental Steam Navigation Company [1952] 1 Lloyd’s Rep 431 at 454-455.) It is otherwise if the ultimate actor exercises an independent discretion. (See e.g. Davidson v Chief Constable of North Wales [1994] 2 All ER 59.) See generally Clerk & Lindsell on Torts (17th ed) Sweet & Maxwell, 1995 paras [12-23] to [12-32]. On the distinction between direct and consequential injury see Hutchins v Maughan [1947] VLR 131 at 133; Platt v Nutt (1988) 12 NSWLR 231 at 244-246.

34 The element of directness – the sufficiency of the nexus between the Defendant’s act and the imprisonment – is satisfied, in the present case. The detention was, as her Honour found, “an inevitable consequence”. The issue is whether the element of intention has been satisfied.

35 In this line of case law, the person who instigated the sequence of events which culminates in an imprisonment, has generally actively sought that result. In that way, the person manifested an intention that there be an imprisonment. In the present case, her Honour’s finding that detention was the “inevitable consequence” of the Ministerial decision - or at least of its “communication” to the relevant officer - does not encompass a finding that the Minister intended the particular result of imprisonment.

36 The tort of trespass requires a wilful or negligent act. (Stanley v Powell [1891] 1 QB 86; Williams v Milotin at 474; McHale v Watson (1964) 111 CLR 384 at 388). The relevant intention for false imprisonment is the intention to detain. (Cowell v Corrective Services Commission at 743E).

37 There can be no doubt that each Minister had an intention that the Respondent be removed from Australia. That was the very point of the decision to cancel the visa and whether or not that should occur was the substance of the departmental paper before each Minister. Detention was an inevitable step brought about by the self-executing operation of the statute, of which the Ministers must have been aware.

38 American case law has developed a “doctrine of substantial certainty” to the effect that knowledge of a high level of certainty is sufficient to amount to intent for purposes of the tort of trespass. (See Trindade and Cane pp30-36; Francis A Trindade, “The Modern Tort of False Imprisonment” in Nicholas Mullaney (ed), Torts in the Nineties Law Book Co, 1997 pp235-236; William Prosser, Law of Torts (4th ed) West Publishing Co, 1971 pp31-32). In the present case the questions of degree that may arise in applying a doctrine of substantial certainty are not present. Here detention was certain.

39 The position is similar to the well known case where a person threw a lighted squib into a market, where it was tossed from one stall to another in an automatic reflex action by two stallholders, Messrs Willis and Ryal. The leading judgment said:

“That the natural and probable consequences of the act done by the defendant was injury to somebody and therefore the act was illegal at common law … Being therefore unlawful, the defendant was liable to answer for the consequences, be the injury mediate or immediate … I do not think to maintain trespass, it is necessary that the defendant should personally touch the plaintiff; if he does it by a means it is sufficient … He is the person who, in the present case, gave the mischievous faculty to the squib. That mischievous faculty remained in it till the explosion. No new power of doing mischief was communicated to it by Willis or Ryal”. ( Scott v Shepherd (1773) 2 Wm BI 892; 96 ER 525.)

40 In the present case “the mischievous quality” of the cancellation of the visa was supplied by the Minister. “No new power of doing mischief was communicated” by the departmental officers. The equivalent of the reflex reaction by the stallholders is the automatic operation of the legislative regime. For purposes of the law of trespass, each Minister must be taken to have intended that the Respondent be detained.

41 The appeal should be dismissed.

Estoppel

42 I agree with Meagher JA that the Appellants’ estoppel submissions would be rejected.

43 Mr D M Bennett QC, Solicitor General for the Commonwealth, accepted that that Court would have remitted such issue for trial, but submitted that, if the Court had been made aware of the claim for damages, it may have granted prohibition but refused, in its discretion, to grant certiorari to quash the cancellation decision. This submission should be rejected for at least five reasons.

44 First, no proper basis for a discretionary refusal to grant certiorari was adumbrated and I can see no such basis. Specifically, third party rights could not be affected as was the case in the authority upon which the Appellants relied, Re Wakim; Ex parte McNally (1999) 198 CLR 511. Secondly, I agree with Meagher JA that it was not unreasonable for the Respondent not to raise the tort claim in the High Court. The High Court’s original jurisdiction was invoked because of the constitutional issue. A damages case would have been remitted. Thirdly, the submission does not address the first period of imprisonment, when the Court’s order to set aside the decision was made by consent. Fourthly, the Commonwealth was not a party to either of the earlier proceedings. Fifthly, if the Appellants wished to protect the Commonwealth from the results of an order of certiorari, which was sought, they could have made a submission to the High Court on the exercise of the discretion. It was at least as reasonable for that to occur as it was for the Respondent to make a claim in the High Court with which the High Court would not itself deal.

Damages

45 The Respondent cross-appeals on the issue of damages against her Honour’s refusal to award aggravated or exemplary damages and also against her Honour’s assessment of damages. The Appellants also appeal against damages in certain respects.

46 It is unnecessary to set out the Appellants’ grounds of appeal on damages. They are all trivial and inconsequential. The Appellants referred to various matters of fact which the Appellants propounded to be irrelevant to the assessment of damages. There is no reason to believe that any of the matters relied upon played any significant role in the damages calculation. The Appellants referred to a number of matters of fact which are mentioned in the judgment, albeit not in that part of the judgment concerned expressly with damages. The obligation to give reasons does not require repetition. In any event, nothing indicates that any of the matters were of significant weight in her Honour’s assessment which, necessarily, had to be of a general character. Specifically, there was no obligation upon her Honour to separately identify the contribution to damage which resulted from State prison officers acting beyond authority, which she had expressly stated made no “significant contribution to the Respondent’s damages”.

47 Another reason for rejecting the grounds of appeal on damages is the fact that her Honour’s award on damages was modest. Indeed I have had to give very careful consideration whether to uphold the Respondent’s cross-appeal that the damages awarded were inadequate.

48 The period for which the Respondent was deprived of his liberty was a very long one. In Spautz this Court, allowing an appeal against inadequacy, decided that an appropriate award of general damages was $75,000 for a person who was imprisoned for 56 days. The Respondent’s period of detention, much of it in prison, was for two periods of 161 and 155 days. Obviously there are differences in the situations between Dr Spautz and the Cross-Appellant.

49 Damages for false imprisonment cannot be computed on the basis that there is some kind of applicable daily rate. A substantial proportion of the ultimate award must be given for what has been described as “the initial shock of being arrested” (Thompson v Commissioner of Police of the Metropolis [1998] QB 498 at 515). As the term of imprisonment extends the effect upon the person falsely imprisoned does progressively diminish.

50 The award by her Honour is, in my opinion, low. However, I do not regard it as so low as to constitute appellable error. This is a discretionary judgment which is, in my opinion, within the range, albeit at the bottom of the range.

51 The Cross-Appellant’s case for both aggravated and exemplary damages turned on the fact that the Cross-Appellant spent the major part of his detention in a state prison rather than in an immigration facility. This was said to constitute the kind of contumelious disregard of the Cross-Appellant’s rights that gives rise to an entitlement for exemplary damages or, alternatively, constituted an improper aggravation of the injury to the Respondent.

52 The basis of the immigration officers’ decisions to request imprisonment in a state prison was, of course, the Respondent’s conviction for sexual offences against children. It is true that the result of these decisions was to make the detention of the Respondent a particularly harsh one, especially as in the prison environment he was returned to what is referred to as “a strict protection” regime.

53 There was material before the immigration decision-makers to the effect that the Cross-Appellant was “highly unlikely” to re-offend, and that reoffending constituted a “moderate risk”, nevertheless the risk was a matter that was appropriate to be taken into account by the relevant decision-makers. There were children present in the relevant immigration detention centre at Villawood, although there was an area in that centre, referred to as Stage 1, which contained only adult males. In that regard, the possibility of retaliation against the Cross-Appellant in Stage 1 was considered expressly in the internal documentation.

54 Her Honour did make a finding that: “the defendants may have inappropriately disregarded the plaintiff’s interest in favour of their own convenience”, but went on to hold that there was no disregard of the plaintiff’s rights. The finding, at the level of possibility, that the Cross-Respondents acted in this manner is not sufficient to make out a case for either exemplary or aggravated damages.

55 In my opinion there was no evidence of any character to justify an order of exemplary damages. The evidence suggesting that the Commonwealth acted inappropriately by confining the Cross-Appellant in the especially harsh environment of a state prison was not sufficiently strong to form the basis of an award of aggravated damages.

56 For these reasons I agree with Meagher JA that the cross-appeal should be dismissed.

Costs

57 The issues raised in the cross-appeal took up a minor part of the proceedings in this Court. The modest size of the award indicates that further disputation between the parties about the allocation of costs between the appeal and the cross-appeal is not warranted. By way of implementation of the overriding purpose under Pt 1 r3 of the Supreme Court Rules (see subrule (2)), this Court should determine this matter in its costs order. The orders I propose are:

(1) Appeal and cross-appeal dismissed.

(2) The Appellants/Cross-Respondents pay 90 percent of the costs of the Respondent/Cross-Appellant.

58 MEAGHER JA: These matters arise out of a verdict in the sum of $116,000 against the appellants awarded by Murrell DCJ for wrongful imprisonment by the appellants of the respondent, Mr Taylor. The matters comprise two appeals: one by the appellants, who in effect are the Commonwealth, on both liability and quantum, and one by the respondent on quantum.

59 Mr Taylor was born in Mansfield UK on 29 September 1956, and arrived in this country (together with his parents, his brother and sisters) when he was 9 years old in 1966.

60 On 1 September 1994 he was granted a Permanent Transitional Visa.

61 On 7 February 1996 he pleaded guilty to eight counts under the Crimes Act 1900 (NSW) for crimes including indecency with little boys. He was sentenced to gaol for a term of years.

62 This conviction led to the first appellant, Mr Ruddock, cancelling Mr Taylor’s visa. The statutory provisions enabling this step to be taken are the following provisions of the Migration Act 1958 (Cth):

“Section 5 Interpretation
…
immigration detention means:
…
(b) being held by, or on behalf of, an officer:
(i) in a detention centre established under this Act; or
(ii) in a prison or remand centre of the Comonwealth, a State or a Territory; or
…
migration zone means the area consisting of the States…..
…
officer means:
(a) an officer of the Department….
Section 14
(1) A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.
Section 15
To avoid doubt, … if a visa is cancelled its former holder, if in the migration zone, becomes, on the cancellation, an unlawful non-citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect.
Section 189
(1) If an officer knows or reasonably suspects that a person in the migration zone…is an unlawful non-citizen, the officer must detain the person
Section 196
(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:
(a) removed from Australia under section 198 or 199; or
(b) deported under section 200; or
(c) granted a visa.
(2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.
Section 501

…
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
(3) The Minister may:
…
(b) cancel a visa that has been granted to a person;
if
(c) the Minister reasonably suspects that the person does not pass the character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
…
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7));
…
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
…”

It will be noted that s 501 speaks of “the Minister”. That term includes the first appellant, Mr Phillip Ruddock, and also the second appellant, Senator Patterson.

63 The decision to cancel the visa was that of Mr Ruddock. He made his decision on 4 September 1999 (i.e. more than three years after Mr Taylor’s conviction). Mr Taylor was served with notice of the decision on 4 November 1999.

64 Shortly after 4 November, an officer of the Migration Department, called Mr Michael Crichton, arrested Mr Taylor and detained him. He was under the impression (common to everybody at the time) that Mr Taylor became an “unlawful non-citizen” when his visa was cancelled. Mr Crichton, therefore, had the “reasonable suspicion” referred to in s 189 (1), whereupon it was his duty, not merely a power, to detain Mr Taylor.

65 Mr Taylor remained detained for 161 days (4 November 1999 to 12 April 2000). He was released from detention upon the orders of Callinan J made 12 April 2000. Those orders were made by consent. One order quashed, by way of certiorari, the cancellation of the visa; another prohibited any further proceedings based on that cancellation. (Despite a rather surprising submission from the Commonwealth, it is, I think, clear enough that the former order acted retrospectively to the date of the cancellation, whilst the latter related only prospectively). What was the reason for making those orders, history does not seem to relate, although it may have something to do with a denial of natural justice to Mr Taylor. One result, of course, of the orders was to procure the immediate release of Mr Taylor. Another was to restore the old visa.

66 That visa was cancelled by the second appellant, Senator Patterson, on 30 June 2000. On 6 July 2000, Mr Taylor was again taken into detention by Commonwealth officers. He was held in detention until he was released by order of the High Court made on 7 December 2000 (see Re Patterson; ex parte Taylor (2001) 207 CLR 391), by which time he had been detained for 155 days (6 July 2000 to 7 December 2000).

67 The order of the High Court requires some elaboration. Until that case it was ordinarily assumed that if you were not a citizen you were an alien; that, if you were born outside Australia, your parents were not Australian, and you had not been naturalised as an Australian (the position of Mr Taylor), you were an alien; and that, if you were an alien, your visa could be cancelled under s 501, (whereupon you became an unlawful non-citizen) you could be detained under s 189, and subsequently deported. That that assumption seemed correct is confirmed by the circumstance that the High Court of Australia in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 (by a six to one majority) so decided. See also Pochi v Macphee (1982) 151 CLR 101 per Gibbs CJ, with whom Mason and Wilson JJ agreed.

68 Re Patterson; ex parte Taylor overruled Nolan’s Case, by a 4-3 majority. The dissenting trio were Gleeson CJ, Gummow J and Hayne J; the other four judges were the majority. The central concept of the new doctrine enunciated in Re Patterson, ex parte Taylor was that there were no longer simply two categories, citizen and alien; there was a third category, viz a non-citizen non-alien; Mr Taylor fitted into this third category, which consisted of (apparently) any British subject who had resided in Australia permanently since 1984 (the magic of that date being that 1984 was the year in which Parliament passed the Australian Citizenship Amendment Act 1984 (Cth)); and that not being a citizen no longer meant being an alien.

69 The consequences of this concept were that (a) the provisions of s 501 concerning the cancellation of visas no longer applied to persons in Mr Taylor’s position; (b) that neither did the power to deport; and (c) probably neither did the power to detain, subject to one condition.

70 The statutory framework in which the officers of the Department thought they were operating was thus shattered, even although they genuinely thought it still existed. The respondent (Mr Taylor) to this appeal made explicit that no attack was made either on the bona fides of either the Ministers or the Departmental officers.

71 Armed with this curial decision, Mr Taylor commenced proceedings against the Ministers (who made the decision to cancel the visas) and the Departmental officers (who effected the detention), for damages for wrongful imprisonment. As I have said, he succeeded and obtained a verdict for $116,000. This is the verdict against which the appellants, representing the Commonwealth, appeal.

72 The first question to be decided is whether either Minister is liable for the tort of wrongful imprisonment. The first reason why this question should be answered in the negative, according to the submissions of the learned Solicitor-General, Mr D Bennett QC, is that there is no legal causal nexus between the Ministerial action of cancelling the visa and the officers of the Department detaining Mr Taylor. It is conceded that the detention was the likely result of the cancellation of the visa, and that it was the natural and probable result. The Solicitor, however, quibbled at the description that it was the “inevitable” result, as her Honour found. I find this disingenuous, and I think her Honour was perfectly correct. By cancelling the visa, the Ministers immediately exposed Mr Taylor as an apparent “unlawful non-citizen” within the meaning of s 189, triggering an obligation to detain; they caused the detention, knowing their actions would lead to that result and could not lead to any other result. The Ministers did not “actively promote” the detention, and perhaps not “participate” in it (see Myer Stores Ltd v Soo [1991] 2 VR 597). However they were the real cause of that imprisonment, and its proximate cause. Their position is little different from what it would have been if they had ordered the detention. I cannot see any escape for the Ministers in an argument based on causation.

73 A second argument advanced on the Ministers’ behalf was the absence of “fault” in them. In my view, in the absence of some statutory provision, if a defendant wrongfully imprisons a plaintiff he is guilty of the tort, no matter how innocent, ignorant or even idealistic he may be.

74 It is next appropriate to consider the position of the “officers” of the Department who effected the arrest of Mr Taylor. They are not in the same position as the Ministers; they are in a more advantageous position. A Minister has no power to cancel a visa unless the person affected is an “unlawful non-citizen” (as now understood); if he is a mere non-citizen, the power does not extend to him. An officer’s power to detain arises if he either “knows” or “reasonably suspects” that the person affected is an “unlawful non-citizen”. Mr Crichton and Miss Campbell could not have “known” Mr Taylor was an “unlawful non-citizen” because he was not, but they could have suspected he was, and did so in fact suspect. The question of whether they are liable for his wrongful imprisonment depends on whether they can be said to have “reasonably” suspected him to be an unlawful non-citizen.

75 Where a statutory provision exonerates a person if he “reasonably suspects” something, and that something does not exist, the mistake may be due to his making a mistake of fact. It was conceded, and properly so, in the present case that a mere mistake of fact does not prevent a suspicion being “reasonable”. In the present case, the officers’ suspicion cannot be so classified; their suspicion arose out of their belief that if a person in Mr Taylor’s position had his visa cancelled he should be arrested and detained. This suspicion was based on their belief that such a cancellation was valid. Clearly, in view of the High Court’s decision, it was not valid. They operated under a mistake of law. Mr Taylor’s submission to us was that an action dependent on a mistake of law cannot be the result of a “reasonable suspicion”. This, the appellants contest.

76 In favour of the respondent is the decision of Dixon J in Little v Commonwealth (1947) 75 CLR 94. That case concerned the power of arrest conferred on a police constable under s 13 of the National Security Act 1939 if he “suspected” that an offence had been committed. Section 13 (3) of the Act provided that no actions would lie against the Commonwealth unless the Governor-General were satisfied that the arrest was made “without any reasonable cause”. At 108 his Honour held (of s 13):

“…it does not cover an erroneous belief on the part of the constable or officer as to the legal significance or quality of the acts or omissions, actual or suspected, past or threatened, of the persons arrested.”

77 In Marshall v Watson (1972) 124 CLR 640 at 650 Stephen J considered a statutory provision protecting a person from civil or criminal liability. His Honour referred to Little’s Case, and held that such statutory provisions were designed to cover cases arising from mistakes of law as well as for mistakes of fact. (His Honour seemed to regard Little’s Case as establishing the proposition that such exonerating provisions cover mistakes of law – I should have thought it was to the opposite effect). At any rate, in Webster v Lampard (1993) 177 CLR 598, the majority of the High Court regarded it as settled law that such protective provisions covered mistakes of law as well as mistakes of fact. This is consistent with the decision of the Full Court of the Supreme Court of Queensland in Veivers v Roberts [1980] Qd R 226. I regard the English Court of Appeal decision in Percy v Hall [1997] QB P24 as in consimili casu.

78 In many of these cases there was an express protective subsection. In the present case, s 189 has no such provision. However, in my view the learned Solicitor-General was correct in his submission that the adverb “reasonably” before the verb “suspects” does the work of an express protective subsection.

79 In these circumstances, I cannot see how the officers concerned can be said not to come within the words “reasonably suspects”. After all, their suspicions were shared by three members of the High Court of Australia (including the Chief Justice), whom it would be impious of this Court to suggest were acting unreasonably.

80 In the course of argument many rabbits were chased down many burrows. One in particular deserves some, but very brief, mention. There was some discussion whether, as a result of the High Court decision in Taylor’s Case, ss 189, 196 and 501 of the Migration Act were valid. It was suggested they were invalid because unconstitutional, not being supported by any head of legislative power. That they were inapplicable to the present case is clear enough, after the High Court decision, but that does not mean they are invalid. I can see no reason why they are not perfectly valid quoad unlawful non-citizens. The relevant head of power is the aliens power (s 51 (xix)) of the Constitution. Gleeson CJ so held in terms in Taylor’s Case, and although he was one of the minority I do not see how he can be said to be wrong on this point.

81 On the question of damages, we have before us both an appeal and a cross-appeal. Both, in my view, should be dismissed. Her Honour’s decisions were not shown to be erroneous. This is particularly so in regard to aggravated and exemplary damages: the Commonwealth, whatever its faults, was neither through its Ministries nor its officers guilty of behaving contumeliously, arrogantly or outrageously.

82 The final submission of the appellants, and one which was not raised before her Honour, was that Mr Taylor was estopped from suing for damages for wrongful imprisonment because he had not sought such ruling in his High Court case. Reliance in this regard was placed on Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. This point may be dealt with summarily. It must fail. An overall requirement of an Anshun estoppel is reasonableness. It does not arise unless it was unreasonable of the party sought to be estopped not to plead the cause of action in question. I cannot see how it would be unreasonable for Mr Taylor to refrain from mentioning to the High Court that he wished to sue the appellants in damages for wrongful imprisonment, particularly as there was not the slightest chance that the High Court would have done anything about it if he had.

83 I would dismiss the appeal with costs.

84 IPP JA: I have read the reasons of Spigelman CJ and Meagher JA. I agree with those reasons and the orders proposed. I wish merely to express in my own words why I consider that the appellants caused the damage sustained by the respondent.

85 As Professor Jane Stapelton has explained in her article ‘Cause-in-Fact and the Scope of Liability for Consequences’ (2003) 119 LQR 388, there are two fundamental questions involved in the determination of causation in tort.

86 The first relates to the factual aspect of causation, namely, the aspect that is concerned with whether the negligent conduct in question played a part in bringing about the harm, the subject of the claim. Professor Stapelton argues (at 389) that this inquiry involves determining whether there was, on the part the defendant, “historical involvement in [the plaintiff] suffering actionable damage”.

87 The second aspect concerns “the ‘appropriate’ scope of liability for the consequences of tortious conduct” (Stapelton op cit at 411). In other words, the ultimate question to be answered when addressing the second aspect is a normative one, namely, whether the defendant ought to be held liable to pay damages for that harm. This inquiry may involve normative issues of a general kind, or issues such as whether the so-called evidentiary gap should be bridged (in the sense explained in Bonnington Castings Ltd v Wardlaw [1956] AC 613), whether the defendant materially increased the risk (in the sense explained in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32), and whether the damage claimed is too remote.

88 Terminology such as “common sense causation” and “proximate” or “dominant” or “effective” or even “legal” cause conceal judicial reasoning, rather than explain it. These terms afford little guidance about when negligent conduct will be considered to have caused harm (see Stapelton, ‘Duty of Care Factors: a Selection from the Judicial Menus’, an essay in The Law of Obligations: Essays in Celebration of John Fleming, Cane and Stapelton, ed, 59 at 61; Review of the Law of Negligence (2002) at 108 to 119).

89 The approach to causation that I have set out forms the basis of s 5D of the Civil Liability Amendment(Personal Responsibility) Act 2002. This Act does not govern the present action but, in my view, the principles it embodies in regard to causation are in accord with the common law.

90 An example of how this approach is to be applied is Chester vAfshar [2002] 3 WLR 1195. The factual situation in this case was similar to that in Chappel v Hart (1998) 195 CLR 232. Chester vAfshar involved a surgeon who negligently failed to warn his patient of the risk of an operation. The patient underwent the operation and the risk materialised through no fault of the surgeon. The English Court of Appeal accepted that, had the surgeon not given negligent advice, the patient would not have had the operation on the particular day that she did. Had she had the operation on a different day, the harmful condition that in fact materialised may not have been brought about.

91 On these facts, the Court of Appeal found that the doctor had caused the injury. Part of its reasoning was that the law was designed to require medical practitioners properly to inform their patients of the risks attendant on their treatment. As the surgeon failed to take proper care in regard to this duty, and that resulted in the patient consenting to an operation to which she would not otherwise have given her consent, the purpose of the rule would be thwarted if the surgeon were not to be held responsible. The very risk about which the surgeon failed to warn the patient materialised and caused her an injury she would not otherwise have suffered. In these circumstances, the Court of Appeal considered that it would be unjust to hold that the effective cause of the patient’s injury was the random occurrence of the very small risk in the condition occurring.

92 This was a normative decision, that is, a decision based on policy considerations.

93 It remains to apply this approach to the present case.

94 There can be no doubt that, but for the Ministerial decision to cancel the visa, the respondent would not have been detained. The first question, that is the question concerning factual or historical causation, is, self-evidently, to be answered in the affirmative.

95 I now turn to the second aspect of causation, the normative question. As Spigelman CJ has emphasised, it is a fundamental purpose of the common law to protect the personal liberty of individuals. The notion in our society that it is fundamentally wrong to deprive an individual, unlawfully, of his or her liberty is of ancient lineage; it is a basic value with very deep roots. In this case, the appellants unlawfully deprived the respondent of his liberty. Accordingly, for normative reasons, I consider that the appellants ought to be held liable to pay damages for the harm the respondent suffered. It would be unjust to hold otherwise.

96 For these reasons, in my view, causation was established.

*****

Last Modified: 09/19/2003