State of New South Wales v TD by her Tutor The Protective Commissioner of New South Wales

[2013] HCATrans 209

[2013] HCATrans 209

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S55 of 2013

B e t w e e n -

STATE OF NEW SOUTH WALES

Applicant

and

TD BY HER TUTOR THE PROTECTIVE COMMISSIONER OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

HAYNE J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 SEPTEMBER 2013, AT 11.25 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR S.A. BECKETT, for the applicant.  (instructed by Crown Solicitor (NSW))

MR T.A. GAME, SC:   May it please, I appear for the respondent with MR A.P.L. NAYLOR.  (instructed by Legal Aid NSW Civil Law)

HAYNE J:   Yes, Mr Walker.

MR WALKER:   Your Honours, the State of course accepts, indeed for the purposes of getting special leave we assert the importance of the tort of unlawful imprisonment, false imprisonment, in particular as an essential common law control on the legality of the conduct which includes or constitutes the deprivation of liberty and to a degree the physical treatment of people, which amounts to a deprivation of liberty, purportedly pursuant to law.

HAYNE J:   Now, there was no warrant, was there, for TD’s detention in the place where she was detained?

MR WALKER:   No, there was not.  At the very outset, as we declare by our formulation of the question, we make clear that there is no qualification to be expressed to the proposition that what was done was contrary to law.  It was unlawful.  It was illegal. 

HAYNE J:   A possible point of view may be – I do not know – that in the events that had happened TD suffered no substantive damage by reason of the fact of her being detained where she was but that issue seems to have been overtaken by an agreement between parties.

MR WALKER:   Yes, and yes, are the answers to your Honour’s points.  However, as to the first of those, on ‑ ‑ ‑

HAYNE J:   Why do we get to a point that this Court should take, Mr Walker?  Have not the parties agreed themselves out of ‑ ‑ ‑

MR WALKER:   We have certainly agreed ourselves out of any argument that such – let me use the controversial expression – residual liberty as was contravened by the unlawfulness in this case should sound in nothing more than a derisory award of damages.  We have certainly agreed ourselves right out of that, but that makes us a good vehicle for the following reasons.

HAYNE J:   We are untroubled by these matters, are we, Mr Walker?

MR WALKER:   Troubled but the problem has been overcome as follows, your Honours.  That is not an argument which the State has any interest to pursue, that is, the State’s contention is that the common law in Australia ought to turn its face against the notion of the unstable distinction between nature and condition of deprivation of liberty being a critical discrimen for whether the tort of false imprisonment has been committed, as opposed to some other legal wrong attracting some other remedy in private or public law which surely would be the expectation of a civilised system of law where there has been illegality.

GAGELER J:   Where do we find the legal authorisation for the detention in the present case?

MR WALKER:   Your Honour, the legal authorisation comes from the application in particular of section 24 of the Mental Health (Criminal Procedure) Act to which, as your Honours know, the Court of Appeal turned attention in differing from Justice Hall at first instance.  The combination of sections 24 and 27 meant that the nomination of a limiting term was one which by reason of what is to be found in section 23 in particular is tantamount to a sentence of imprisonment. 

So the consequences of nominating a limiting term provided by section 24 included that which comes from section 23, namely imprisonment.  It is called a different thing because of the fitness to plead issue which is the pivot of the application of all of these provisions, and it leads ultimately, once section 27 is construed as the Court of Appeal did contrary to Justice Hall as exhaustive – that is, not permitting no imprisonment, no custody – it leads to the status of being a forensic patient which in the fullness of time upon expiry of term will lead to the possibility of future decisions, as it were, in the civil administration of the Mental Health Act.

But from the determination required following the procedure laid down in section 23 with the consequence in section 24, you will see, for example, time counting under section 23(4) the lawfulness of imprisonment – and I have to add the word “generically” – has been provided by the combination of statute and judicial order pursuant to statute.  Thereafter what happened in this case, as your Honours know, that though she was detained within the prison hospital the cell in which she was detained in was not one of those that had been gazetted a hospital for the purpose of section 27.  That is the critical difference in this case.  There was a bright line in law between the cells that had been gazetted as a hospital and the other cells in the ward of the prison hospital, the building as a whole was not fully gazetted.

Now, in our submission, what the tort according to its originating and we submit current basal principles requires is that there be a determination of a deprivation of liberty, step one; step two, without lawful authority.

GAGELER J:   Well, where does your case fall here?  Is it at step one, you say?

MR WALKER:   Yes.  There is no question, and I cannot emphasise it too much, why this is a good vehicle to examine the important question of legal policy as to whether conditions verging into nature of what would otherwise be lawful detention renders the whole of the deprivation of liberty unlawful.  This case is a good vehicle to provide that because there is no doubt of the unlawfulness of what occurred.  By being on the wrong side of the gazetted bright line what was done during this limited period was unlawful, no question about it.  It was in disobedience, if I may put it that way, as section 27 and the court order made pursuant to it.

However, we do know that it is simply that unlawfulness that is said to provide the availability of the tort.  That must mean that there has been a deprivation of liberty otherwise than in accordance with law.  But the unfortunate plaintiff was already deprived of her liberty and would remain deprived of her liberty.  It was not a matter of the unlawfulness being the only reason or purported justification for her being deprived of liberty. 

So cases which have to do with that – that is, it could have been done properly but was not – they have nothing to do with this case.  What had been done properly in this case was the deprivation of liberty, not challenged, and the making of the order which indeed not only was not challenged but was positively embraced by the plaintiff, namely the order for detention in a hospital. 

Now, the effect of those elements of the plaintiff’s case, positively embraced and advanced by her, is that she was demonstrating beyond any doubt that she had no liberty to be deprived of.  It is not a question of degree.  It is for those reasons that be we right or wrong in the ultimate resolution that we have offered in sketch form in our written submissions that what the common law should be, it is, in our submission, a fundamentally important question of doctrine for which this case provides, for the reasons I have tried to explain, an ideal vehicle.

It is not complicated by some considerations of a kind that the British courts have from time to time tangentially approached, such as whether conditions – conditions being both physical conditions as well as legal conditions – of custody can affect, as it were, by doctrine of relation back the lawfulness of an originally lawfully imposed term of imprisonment.

Your Honours are aware that the Court of Appeal considered in particular the reconciliation, if I can put it that way, by their Lordships in Hague’s Case of a number of – I would call them a motley collection of cases.  An error, we respectfully suggest, in an approach to be seen in the Court of Appeal reasons in this case is to treat, for example, Cobbett v Grey as one of the central 19th century authorities relied upon as having anything to do with the present case.

That was a case where there was a determination that a case in trespass was fit to go for the forcible conduct of somebody who merely failed to pay costs in a chancery suit to some less salubrious part of the prison upon his later failure to file a disclosure of his financial position.  If that were wrongful, then it was determined trespass would follow. 

In our submission, that is a weak reed indeed to convert the place of detention when the liberty is rightfully deprived of into a state of affairs which must suppose that the deprivation of liberty has been unlawful.  It confuses the conditions under which the liberty is to be deprived from the deprivation of liberty in the first place.

Now, it leads to some anomalies identified by their Lordships in Hague’s Case in passages that both sides have referred to in writing, because it seems to be accepted that if, and I do not wish to be understood to be trivialising the matter, far from it – the reported cases show how serious this can be – if food, light, clothing, protection from unlawful assault, being conditions of imprisonment are so terrible as to be, to use their Lordships’ words “intolerable”, it is crystal clear as a matter of the common law in England and Wales and here, we would submit, that that does not render the imprisonment unlawful for the purposes of the tort. 

It may and should give rise to a constellation of possible other causes of action, either in private law or claims in public law, for the remedying of the situation – trespass, negligence and orders in the nature of mandamus spring immediately to mind – but they do not, in our submission, justify a disturbance of the important clear central element of this very important tort, namely that it is protective of liberty and therefore not in the repertoire of possibilities available to somebody who is lawfully deprived of liberty. 

Now, if this was a case in which there was only one way in which the unfortunate plaintiff could be deprived of liberty, then other consequences may have followed.  But given that the plaintiff accepted the efficacy in law of the orders following section 23 with the consequence under section 24 with the second stage of determination under section 27 and the regime by which she was deprived of that thing which has a legal unity, liberty, given that she accepted that, this case did raise in a way that the Court of Appeal has not satisfyingly answered the question whether subsequent departures, subsequent to the making of the order depriving of liberty, subsequent departures from the legal requisites of the continued detention of the plaintiff provides for a remedy sounding in a tort which is for the vindication of liberty, not the vindication of the propriety and we would add the continued and continuous propriety and lawfulness of treatment.  There are other remedies provided for that, not this tort.

In our submission, none of those conceptual difficulties are appropriately reconciled by the unstable repetition in the Court of Appeal of the strikingly unstable distinction between nature and conditions of detention.  When there are prison rules given statutory force, as in Hague’s Case, or here a decision subsequent to the decision determining imprisonment but choosing between one of two alternative faces of imprisonment – that is section 27 – the question arises how does one choose for the purpose of this tort, so important for civil liberties and rule of law, how does one choose when departure from conditions, that is, features that must remain satisfied throughout detention ‑ ‑ ‑

GAGELER J:   And that make the detention lawful.

MR WALKER:   And that make it lawful, yes.  It is unlawful if it is being conducted unlawfully.  It is unlawful to beat a prisoner in detention.  It does not mean the prisoner has been deprived of liberty unlawfully.  It means that he or she is being treated unlawfully.  Similarly, if the gazette line altered so as to embrace cell 16 or it had moved the other way, cell 16 had been on the right side of the gazette line and then it had been shifted, what had once been lawful would become unlawful and vice versa.  But the original deprivation of liberty would not be so and as their Lordships – particularly Lord Bridge, but also Lord Jauncey explain ‑ ‑ ‑

HAYNE J:   You speak of the original deprivation of liberty.  What we have is, in effect, an unexecuted judicial order for TD’s detention, in effect, in a secure hospital.

MR WALKER:   Yes, your Honour, that is a proper way to test my proposition.  The order was never carried out until the correction was made.  It was not carried out.  Now, it would be banding with words for me to say it was mis‑executed.  It is in truth, as your Honour says, unexecuted.  You were told to take her to the hospital and you did not. 

GAGELER J:   What is your response to the respondent’s summary of argument, paragraph 3, last sentence, page 124?

MR WALKER:   That cannot be right if we are thinking in terms of the order being an exercise of power.  It may be I am misreading my friends, if so I apologise.

HAYNE J:   Well, the gaoler would have had no satisfactory return to a habeas. 

MR WALKER:   There is no question, your Honours.  In terms of habeas, however, it would not be an order for release that follows, and that is what their Lordships are pointing out in Hague’s Case.  The vindication of liberty which is the purpose of the tort and the ultimate inquiry of habeas justify your holding the body.  It could not be in this case being turned to liberty, could not be.  It would be to have your imprisonment where the law required it to be as opposed to a place where the law did not permit it to be.

HAYNE J:   The court would have ordered discharge from the custody of the gaoler, the fact that there may have been two gentlemen sitting up the back of the court who as the subject of habeas walked out to accompany her to another form of detention ‑ ‑ ‑

MR WALKER:   Could I suggest, your Honours, that it would not be a matter of no moment to the habeas court which of course is a court in another way vindicating rights of liberty and legality.  The habeas court would know that the law required this person to be in custody in a hospital.  That would not be of no matter to the habeas court.  It would not be a matter of speculating who the burly men in uniform were at the back of the court ‑ ‑ ‑

HAYNE J:   But you would still order discharge, surely?

MR WALKER:   Certainly discharge from the unlawful custody.  That would be to vindicate the rule of law.  Yes, all of that is not merely concession but we advance that as a reason why this is a case that starkly without any of the complications that might apply in cases of intolerable conditions, et cetera, that this case starkly raises the place of this tort in a suite of legal approaches to the unlawful treatment, including placement, of persons lawfully required to be deprived of their liberty.  Now, this is not a matter, when one states it that way that is not a matter that is likely – I regret to say – never to arise again.  Mistakes can occur and I should say there is no bad faith alleged in this case.

GAGELER J:   I may be wrong, but similar questions, as I understand it, have been analysed in the House of Lords as going to the measure of damages.

MR WALKER:   Your Honour, the first thing one thinks of in this case, whether one tries to avoid the notion of residual liberty or not which is a very difficult, perhaps not very helpful concept, the first thing one asks well, if the vindication is for deprivation of liberty and the liberty in question was already gone then why should there be anything compensatory?  Of course, damages may not be confined to compensatory.  However, in terms of the vindication of the law, what the law requires, mandamus; negligence if there has been actual loss suffered; trespass if there has been an unjustified forcible location of someone as in Cobbett v Grey, those are the torts which are much better adapted.

The coherence, in our submission, of the common law vindication of an interest in personal liberty and a concern, indeed an insistence on legality being strictly observed when that liberty is to be officially restrained, that in our submission is not well served by the unstable distinction between conditions and nature.  At what point does a departure from conditions which are mandatory, they are not to be disposed of by saying they do not matter, they are not substantial.  They are mandatory, Parliament says.  You can only go to a hospital.  It has to be a gazetted hospital.  At what point does that become a difference in nature and what do you do when it turns out that there is no challenge to what has been ordered?  There is rather a complaint that rather than being detained in a prison I have been detained in a hospital, liberty being deprived of to exactly the same extent in each case.  I have trespassed on your time or time left, may it please your Honours.

HIS HONOUR:   Thank you, Mr Walker.  We will not call on you, Mr Game.

The applicant does not dispute that the respondent was unlawfully detained in a prison.  Whether the existence of an unexecuted judicial order that she be detained in a different place, in effect, a secure hospital, affected or eliminated any damage that she otherwise suffered by reason of her wrongful detention in prison is a question which the party’s agreement on damages precludes this Court from considering if special leave to appeal were to be granted.  Special leave to appeal will be refused with costs.

AT 11.48 AM THE MATTER WAS CONCLUDED