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[2021] FCA 1089
Federal Court of Australia
2021-09-09
Act J, Regulations J, White J
Original judgment source is linked above.
WHITE J: Introduction [1] A chronology of the applicant's detentions and imprisonments [8] An overview of the applicant's claims [13] Statutory provisions [17] Matters pertaining to detention generally [32] The Applicant's witnesses [46] The Applicant [47] Ms Palmer [58] Mr Muir [60] Mr Ralph [64] The respondents' witnesses [65] The "isolation" to which s 153(5) refers [69] The Alice Springs Youth Detention Centre [98] The Don Dale Detention Centre [108] The 7-8 April 2011 false imprisonment claim [113] Overview of the applicant's claim [113] Overview of the respondents' filed defence [115] The evidence as to the circumstances leading to the placement [116] Findings concerning the applicant's placement in Room 5 [131] Was the applicant isolated from other detainees? [138] Was the applicant placed in Room 5 for a s 153(5) purpose? [155] Conclusion on the 7-8 April 2011 false imprisonment claim [161] Detention at Don Dale between mid-November and Christmas 2011 [162] The applicant's account of his transfer to Don Dale in October 2011 [171] The respondents' account of the applicant's transfer to Don Dale [176] The absence of evidence from Derek Tasker [185] Findings regarding the transfer from ASYDC to Don Dale [188] Consideration of retransfer to ASYDC [198] The cancellation of the Christmas transfer to ASYDC [215] Duty of care: the applicant's pleaded case [216] The claim advanced at trial [225] The form of loss alleged [227] Duty of care: principles [232] The duty of care and the "parens patriae responsibility" [239] The legislative regime informing the scope of the duty of care [245] Findings concerning the detention at Don Dale from mid-November to Christmas 2011 [258] Why was the applicant kept at Don Dale? [262] Did Mr Yaxley have a "disciplinary" purpose? [268] Was keeping the applicant at Don Dale unlawful? [277] Was the duty of care breached? [282] Conclusion on claims of negligence in keeping the applicant at Don Dale until Christmas 2011 [289] The claim of false imprisonment: 26 December 2011 to 9 January 2012 [291] Cancellation of the applicant's Christmas transfer to Alice Springs [294] The applicant's threat of self-harm [300] The disturbance in the early hours of 26 December 2011 [305] Detention in the BMU: 26-28 December 2011 [330] The removal to the DCC [334] Returning to Don Dale [344] The Intensive Management Plan for the applicant [345] The applicant's pleaded claims [351] The claim of false imprisonment in the BMU: 27-28 December 2011 [353] Did the detention in the BMU between 27 and 28 December 2011 constitute isolation? [354] Was the isolation between 27 and 28 December 2011 for a s 153(5) purpose? [364] Did Mr Yaxley have the approval of the Director? [370] Approval by Mr Brown? [371] The authority of Mr Brown [376] Conclusion regarding the December detention in the BMU [388] The claim of false imprisonment at DCC: 28 December 2011-2 January 2012 [389] The claim of false imprisonment in the BMU: 2-9 January 2012 [409] Did the detention in the BMU between 2 and 9 January 2012 constitute isolation? [411] Was the isolation between 2 and 9 January 2012 for a s 153(5) purpose? [417] Was the detention in the BMU between 2 and 9 January 2012 authorised by the Director? [424] Unauthorised isolation in the BMU and false imprisonment [431] Limits on the authorised detention of the applicant [460] Conclusion: the applicant was falsely imprisoned [466] The claims concerning the use of spit hoods [474] The applicant's evidence concerning the spit hoods [478] The respondents' evidence [482] Did the applicant have a history of spitting? [489] Findings concerning the use of spit hoods [506] Battery and assault: principles [513] The expert evidence regarding spit hoods [522] Conclusion on the claim of battery and assault [540] The claim in negligence [543] The claims concerning the incidents on 29 May 2012 [546] The applicant's evidence concerning the Tackling Incident [554] The applicant's evidence concerning the Evacuation Incident [556] Findings concerning the circumstances of the Tackling Incident [558] Findings regarding the Evacuation Incident [581] Was there a battery in the Tackling Incident? [602] Was there a battery in the Evacuation Incident? [624] Conclusion on the claims concerning the incidents on 29 May 2012 [635] Detention at Don Dale from December 2011 until 9 July 2012 [636] The applicant's pleaded case [637] The applicant's evidence [640] The respondents' evidence [644] Consideration [662] The eyesight claim [672] The applicant's evidence [678] The respondents' evidence [686] Consideration of the eyesight claim [697] The Racial Discrimination Act claims [708] Statutory provisions and principles [713] The claim of direct discrimination - s 9(1) [718] Some preliminary comments [721] The requirement that the differential act be "based on" the applicant's race [725] The respondents' evidence [733] Evaluation of the s 9(1) claim [737] The claim of indirect discrimination - s 9(1A) [743] The refusal to transfer the applicant to ASYDC [746] The keeping of the applicant at DCC [755] The s 10 claim [767] Conclusion on the RD Act claims [774] The defence of the Territory: Superintendents exercise an independent statutory duty [775] The good faith defence: s 215(2) of the YJ Act [807] Consideration [817] The limitation of actions defence [833] Identifying the limitation periods [834] The pleadings concerning the time bar [848] The application of s 215B to the applicant's claims [856] When did the limitation periods commence to run? [881] Are the applicant's claims time barred? [882] Abandonment of the application to extend the limitation periods [887] Assessment of damages [899] Summary [916]
Introduction 1 The applicant is a man of the Kngwarraye and Aranda People who was born in August 1994 and grew up in Alice Springs. From the age of 14 years he spent periods in custody, ordered under the Youth Justice Act 2005 (NT) (the YJ Act). These included periods at the Alice Springs Youth Detention Centre (ASYDC) and at the Don Dale Youth Detention Centre (Don Dale) in Darwin. In addition, the applicant was held, while still a youth, for five days at the Darwin Correctional Centre, Berrimah (the DCC). There is an issue in the proceedings as to whether that was authorised by the YJ Act. 2 Each of the ASYDC, Don Dale and DCC is an institution established and maintained by the Northern Territory of Australia (the Territory). 3 Since turning 18 in August 2012, the applicant has served periods in adult prisons in the Territory. 4 These proceedings concern events and circumstances which occurred in the period from April 2011 to July 2012 while the applicant was in custody. The applicant claims that particular incidents constituted the torts of false imprisonment, the torts of battery or assault, and involved breaches of the duty of care owed to him by the Territory. He asserts that some of the conduct of officers in the Detention Centres constituted breaches of the YJ Act and of the Youth Justice Regulations 2006 (NT) (the Regulations) made under that Act. The applicant claims damages and compensation in respect of the consequences of these torts. 5 The applicant also claims that certain conduct constituted discrimination in contravention of ss 9(1) and 9(1A) of the Racial Discrimination Act 1975 (Cth) (the RD Act). He seeks relief under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act), including an order for payment of damages by way of compensation in relation to the claimed contraventions and, in addition, invokes s 10 of the RD Act. 6 The first respondent is the Territory. The applicant alleges that it is liable, whether directly or vicariously, for the acts and omissions of officers in the Detention Centres of which he complains and that it breached a non-delegable duty of care it owed to him. 7 The second respondent is named as the "Superintendent of Don Dale Youth Detention Centre". In effect, the applicant sues the office of Superintendent. No issue was taken in the trial about this manner of naming the second respondent. The applicant sues the Superintendent in the alternative because the Territory denies that it can be liable for the conduct of which the applicant complains, even if that conduct is otherwise established.
A chronology of the applicant's detentions and imprisonments 8 It was common ground that to the date of trial the applicant has been held in detention or in prison in the Territory as follows: Period Place Offence Nature of Detention/Imprisonment 22/05/2009 - 29/05/2009 Alice Springs Juvenile Holding Centre (ASJHC) Various, including aggravated assault, stealing in company, and causing bodily harm Remands 30/05/2009 - 29/06/2009 Don Dale As above Remands 29/06/2009 to - 05/07/2009 ASJHC Various, including stealing in company and causing bodily harm Remands 05/07/2009 - 16/07/2009 Don Dale As above Remands 16/07/2009 - 24/07/2009 ASJHC Various including stealing in company, causing bodily harm and aggravated assault Remands Applicant sentenced on 24 July 2009 to six months detention commencing on 24 May 2009 but sentence suspended 24/07/2009 - 03/02/2010 Applicant not in detention during this period 03/02/2010 - 11/02/2010 ASJHC Trespass and other offences Remand to 8 February, sentence thereafter 11/02/2010 Don Dale As above Sentence 02/05/2010 - 21/11/2010 Applicant not in detention during this period 21/11/2010 - 22/11/2010 ASJHC Various, including possessing a controlled weapon and aggravated robbery Remands 30/11/2010 - 10/01/2011 Don Dale As above Remands 10/01/2011 - 11/01/2011 ASJHC Stealing in company and causing bodily harm Remands 11/01/2011 - 31/03/2011 Don Dale As above Remands 31/03/2011 - 15/10/2011 ASJDC Various, including stealing in company, causing bodily harm and robbery Remand to 23/08/2011. Sentence of detention of 2 years and 3 months imposed on 23 August 2011. Ordered to commence on 21 November 2010 with a non-parole period of 12 months. 15/10/2011 - 28/12/2011 Don Dale Robbery Sentence 28/12/2011 - 02/01/2012 Berrimah Correctional Centre Robbery Sentence 02/01/2012 - 04/04/2012 Don Dale Robbery Sentence 04/04/2012 - 09/04/2012 ASJDC Robbery Sentence 09/04/2012 - 09/07/2012 Don Dale Robbery and various offences including aggravated assault and being armed with an offensive weapon Sentence on robbery, remands and, from 29/06/2012, a concurrent sentence 09/07/2012 - 25/08/2012 ASJDC As above As above 25/08/2012 - 13/11/2012 Alice Springs Correctional Centre (ASCC) As above As above 13/11/2012 - 22/03/2013 Applicant not in detention during this period 22/03/2013 - 27/06/2013 ASCC Breach of parole Sentence 27/06/2013 - 31/08/2013 Applicant not in detention during this period 31/08/2013 - 02/09/2013 ASCC Not indicated Presumably on remand 02/09/2013 - 15/11/2013 Applicant not in detention during this period 15/11/2013 - 06/07/2014 ASCC Aggravated unlawful use of a motor vehicle and unlawful possession of property Sentence 06/07/2014 - 25/08/2015 Applicant not in detention during this period 26/08/2015 to the date of trial ASCC 4 x aggravated robbery Remand to 12 December 2016, thereafter sentence (6 year sentence backdated to 25/08/2015 with a non-parole period of 3 years) 1 x aggravated unlawful entry into a dwelling with the intent to commit an offence
9 The "ASJDC" in the table refers to the Alice Springs Juvenile Detention Centre. It is the name by which the ASYDC was formerly known. The "ASJHC" is the acronym for the Alice Springs Juvenile Holding Centre. Mr Yaxley, one of the respondents' witnesses, described the ASJHC as a basic facility used for the short term accommodation of detainees with upcoming court appearances in Alice Springs. Although use of the ASJHC ceased in early 2011, it recommenced for a period in April 2012. 10 As an adult prisoner, the applicant was transferred between ASCC and the DCC for short periods, for example, to facilitate medical examinations and for like purposes. In addition, while at ASYDC he was for very short periods transferred to ASJHC because of short term accommodation difficulties at ASYDC. Those short periods have not been shown in the table. 11 The table indicates that, from 22 May 2009 to the time of trial, the applicant had not been in detention or imprisonment only in the following periods: 24/07/2009 - 03/02/2010 02/05/2010 - 21/11/2010 13/11/2012 - 22/03/2013 27/07/2013 - 31/08/2013 02/09/2013 - 07/11/2013 06/07/2014 - 25/08/2015 12 The applicant was in custody at the time of the trial, and arrangements were made for him to be brought to Court from custody.
An overview of the applicant's claims 13 The events and circumstances which are the subject of the present proceedings are these: (a) the alleged unlawful isolation of the applicant at ASYDC on the night of 7 April 2011, which the applicant alleges constituted unlawful imprisonment; (b) following the transfer of the applicant from ASYDC to Don Dale on 15 October 2011, the keeping of him at Don Dale (other than for short periods at ASYDC and the DCC) until 9 July 2012. The applicant alleges that this constituted a breach of the duty of care owed to him by the Territory or the Superintendent resulting in negligent false imprisonment and mental harm; (c) the holding of the applicant in isolation at Don Dale and at the DCC between 27 December 2011 and 9 January 2012, which the applicant alleges constituted unlawful imprisonment; (d) the use of spit hoods on the applicant on three occasions while he was in the DCC between 28 December 2011 and 2 January 2012, which the applicant alleges constituted a battery, assault and a breach of the duty of care owed to him by the Territory or the Superintendent; (e) two incidents on 29 May 2012 at Don Dale, in the first of which the applicant says he was injured by an inappropriate use of force by detention officers when handcuffing and restraining him and in the second of which he alleges that he was subjected to an inappropriate use of force by Corrections Officers from the DCC. He alleges that the conduct in the first incident constituted an assault, battery and a breach of the duty of care, and that the conduct in the second a battery or assault; (f) the failure by the Territory or the Superintendent to test, diagnose and treat a visual disability from which the applicant says he suffers, which he alleges constituted a breach of the duty of care. 14 The applicant also pleads that the conduct of the Territory in transferring him from ASYDC to Don Dale in October 2011, the refusal to transfer him back to ASYDC in November 2011 and thereafter until 9 July 2011, and the placement of him at the DCC from 28 December 2011 until 2 January 2012 constituted contraventions of ss 9(1), 9(1A) or 10 of the RD Act. These claims were modified and confined in the final submissions. 15 The respondents denied liability on each of the applicant's claims. In addition, they raised three substantive defences: (a) by reason that superintendents exercise an independent statutory discretion in the management of detention centres, the Territory cannot be liable, whether directly or vicariously for the actions on which the applicant sues; (b) by reason of s 215 of the YJ Act, the Superintendent has an immunity from action, because the acts which he impugns were done in good faith; and (c) the applicant's claims, other than his RD Act claims and the claims in respect of the DCC, are time-barred. 16 As the reasons which follow will indicate, I consider that the applicant has made out only one of his claims, namely, the claim of unlawful imprisonment at Don Dale in the period between 2 and 9 January 2012. However, relief cannot be ordered in respect of that claim because it is time barred and, in the final submissions, the applicant abandoned any claim for an extension of time in which to commence the proceedings. Accordingly, the application must be dismissed.
Statutory provisions 17 The provisions of the YJ Act to which I refer in this section of the reasons are those which were in force in 2011 and 2012, being the times relevant to these proceedings. It is, however, convenient to refer to them in the present tense. The Prisons (Correctional Services) Act 1950 (NT) (the Prisons Act) which was applicable at the time of the events in issue in these proceedings, was repealed in 2014 but it is also convenient to refer to it in the present tense. 18 Under Pt 6 of the YJ Act, the Youth Justice Court in the Territory may, amongst other alternatives, order a youth found guilty of a criminal offence to serve a term of detention or imprisonment (s 83). Likewise, the Supreme Court of the Northern Territory may, when sentencing a youth, order that the youth "be detained in a detention centre or imprisoned" (s 82). 19 The YJ Act does not contain any definition of the word "detain". However, Pt 8 of the YJ Act provides that the Minister, relevantly the Minister for Correctional Services, may approve an establishment to be a youth detention centre for the purposes of the YJ Act (s 148). By s 149(1) a youth must not be admitted to a detention centre except in accordance with the YJ Act. Section 5 defines a "detainee" to be "a youth lawfully detained in a detention centre". 20 It was common ground that the applicant had been ordered by the Youth Justice Court or the Supreme Court to serve the periods in detention occurring before 13 November 2012, that ASYDC and Don Dale had been approved as detention centres, and that the applicant's admissions to those detention centres had been in accordance with the YJ Act. In particular, it was not suggested that either s 82 or s 83 of the YJ Act had required the Supreme Court, in the sentence imposed on the applicant on 23 August 2011, to specify the detention centre in which he was to be held. In this respect, the powers of the Courts stand in contrast with their powers when refusing a youth bail. In those cases, the Courts must "specify the detention centre or other place at which the youth is to be detained" (s 24(3)). 21 Section 151(1) of the YJ Act requires the Director of Correctional Services (the Director) appointed under the Prisons Act to appoint an employee, within the meaning of the Public Sector Employment and Management Act 1993 (NT) (the PSEM Act), to be the superintendent for a detention centre. By s 151(2), such a superintendent is "responsible, as far as practicable, for the physical, psychological and emotional welfare of detainees in the detention centre" (s 151(2)). 22 Section 151(3) of the YJ Act imposes obligations on superintendents: S 151(3) The superintendent of a detention centre: (a) must promote programs to assist and organise activities of detainees to enhance their wellbeing; and (b) must encourage the social development and improvement of the welfare of detainees; and (c) must maintain order and ensure the safe custody and protection of all persons who are within the precincts of the detention centre, whether as detainees or otherwise; and (d) is responsible for the maintenance and efficient conduct of the detention centre; and (e) must supervise the health of detainees, including the provision of medical treatment and, where necessary, authorise the removal of a detainee to a hospital for medical treatment. 23 As is apparent, s 151(3) imposes obligations on a superintendent, amongst other things, to maintain order and ensure the safe custody and protection of all persons within the precincts of the detention centre, whether as detainees or otherwise, and to be responsible for "the maintenance and efficient conduct of the detention centre". 24 Section 152 of the YJ Act vests superintendents with the following powers: 152 Powers of superintendent (1) The superintendent of a detention centre has the powers that are necessary or convenient for the performance of his or her functions. (2) The superintendent has power to approve the participation of a detainee in programs conducted in accordance with section 151 in place of consent by a parent or responsible adult in respect of the detainee. (3) The powers and functions of the superintendent of a detention centre in relation to a detainee are not altered or diminished by the fact that the detainee may be outside the precincts of, or absent from, the detention centre. 25 The respondents emphasised that the superintendents have the powers that are "necessary or convenient for the performance of [the superintendent's] functions" (s 152(1)). In JB v Northern Territory of Australia [2019] NTCA 1; (2019) 343 FLR 41 at [118], Southwood J and Graham AJ described the power granted by s 152(1) of the YJ Act as "a very wide grant of power which is intended to ensure the superintendent has adequate capacity to perform his or her wide ranging functions and duties under the Act". It is established that the power to do all things which are "necessary or convenient" for the performance of a function, while broad, is strictly ancillary, authorising the provision of subsidiary means of carrying into effect what is enacted in the statute itself and encompassing what is incidental to the execution of its specific provisions: Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 at 249-50. The power does not support attempts to widen the purposes of the Act, to add new or different ways of carrying them out, or to depart from the plan which the legislature has adopted to attain its ends: ibid. 26 Section 153 concerns the maintenance of discipline in a detention centre: 153 Discipline (1) The superintendent of a detention centre must maintain discipline at the detention centre. (2) For subsection (1), the superintendent may use the force that is reasonably necessary in the circumstances. (3) Reasonably necessary force does not include: (a) striking, shaking or other form of physical violence; or (b) enforced dosing with a medicine, drug or other substance; or (c) compulsion to remain in a constrained or fatiguing position; or (d) handcuffing or use of similar devices to restrain normal movement. (4) However, if the superintendent is of the opinion that: (a) an emergency situation exists; and (b) a detainee should be temporarily restrained to protect the detainee from self-harm or to protect the safety of another person, the superintendent may use handcuffs or a similar device to restrain the detainee until the superintendent is satisfied the emergency situation no longer exists. (5) If the superintendent is of the opinion that a detainee should be isolated from other detainees: (a) to protect the safety of another person; or (b) for the good order or security of the detention centre, the superintendent may isolate the detainee for a period not exceeding 24 hours or, with the approval of the Director, not exceeding 72 hours. 27 As is apparent, the superintendent is required to maintain discipline at the detention centre and, subject to subs (3) and (4), may use "the force that is reasonably necessary in the circumstances" in order to do so. 28 Section 153(5) permits a superintendent to isolate a detainee from other detainees for two specific purposes but limits the periods in which a youth can be held in isolation. Without the approval of the Director, the isolation must not exceed 24 hours (s 153(5)). Even then, the isolation may not exceed 72 hours. There is no provision for extension of the 72 hour maximum. 29 Section 154 provides for circumstances in which a detainee in a youth detention centre may be transferred temporarily to a prison: 154 Temporary removal of detainee to prison (1) If the superintendent of a detention centre is of the opinion that: (a) an emergency situation exists; and (b) a detainee should be temporarily transferred to a prison to protect the safety of another person, the superintendent may apply by telephone to a magistrate for approval to transfer the detainee. (2) Subsection (1) applies only in relation to a detainee who is 15 years of age or older. (3) If the magistrate approves the transfer, the superintendent may arrange for the detainee to be transferred from the detention centre to a prison. (4) The approval must be in writing and the magistrate must send a copy of the approval to the superintendent as soon as practicable. (5) The superintendent may proceed under the telephone advice of the magistrate's approval despite that the written approval has not been received. (6) If the written approval has not been received, the superintendent must sign a version of the approval as authority for the person in charge of the prison to take the detainee into his or her custody. (7) The period of transfer of the detainee must not exceed 24 hours. (8) However, the superintendent may apply to a magistrate for an extension of the period of transfer. … 30 The effect of s 154 is that the circumstances in which a detainee may be transferred to an adult prison are limited. First, superintendents must be of the opinion that, an emergency situation exists, and that the detainee should be transferred temporarily to a prison "to protect the safety of another person". The term "emergency situation" is not defined in the YJ Act. Secondly, superintendents may not act solely on their own opinion but must obtain the approval of a magistrate for the transfer (the approval may be obtained by telephone). Thirdly, the period of the transfer must not exceed 24 hours, although the superintendent may apply to a magistrate for an extension of the period (s 154(8)). 31 Section 157 provides for the delegation of powers and functions by a superintendent: 157 Delegation by superintendent (1) The superintendent of a detention centre may delegate in writing any of his or her powers and functions under this Act to: (a) a member of the staff of the detention centre; or (b) a person authorised by the Director for section 165(b). (2) A police officer or a prison officer within the meaning of the Prisons (Correctional Services) Act, if called upon by the superintendent of a detention centre to assist in an emergency situation or in preventing an emergency situation from arising, is taken to have been delegated the powers of the superintendent necessary to perform the superintendent's functions under section 151(3)(c).
Matters pertaining to detention generally 32 At the times relevant to these proceedings, there were two principal detention centres in the Territory. These were Don Dale and ASYDC. Don Dale was much larger than ASYDC. 33 In 2011 and continuing to 4 September 2012, Mr Middlebrook, one of the Territory's witnesses, held the substantive position of Executive Director for Northern Territory Correctional Services. This was the position of "Director" for the purposes of the YJ Act. There is an issue about the occupancy of that position during a period when Mr Middlebrook was on leave to which it will be necessary to return. 34 The evidence did not contain any document evidencing the formal appointment of a person as superintendent of either ASYDC or Don Dale. The respondents' witness, Mr Fattore, deposed that the position of General Manager of Youth Detention based at Don Dale "encompassed the statutory positions of Superintendent of Don Dale and Superintendent of [ASYDC]". He held that position until 28 October 2011 when he was succeeded by Mr Yaxley. The latter gave evidence to like effect, as did Mr Middlebrook. Mr Yaxley also explained that in 2011 and 2012, "Youth Justice" had been part of the Department of Correctional Services, which used the terminology of "General Manager". Hence, this term had also been used in relation to his position. 35 No point was taken about the absence of evidence of a formal appointment of Mr Fattore or Mr Yaxley as Superintendents of Don Dale or of ASYDC. 36 A number of persons were employed in the detention centres, including Youth Justice Officers (YJOs) and Case Managers or Case Workers. Some YJOs were referred to as "Youth Workers" or "Senior Youth Workers". Each detainee entering detention was allocated a Case Manager. Broadly speaking, YJOs were responsible for security, responding to incidents and generally managing detainees through the daily routines. Case Managers, on the other hand, were responsible for the well-being and rehabilitation activities of the youths in detention. 37 Mr Donald, the applicant's Case Manager at Don Dale, said, and I accept, that an important task of Case Managers was the making of arrangements for detainees to contact their families. This involved establishing and maintaining the approved-contact telephone system and, on occasion, making arrangements for contact via videolinks. 38 Most of the detainees at Don Dale and ASYDC were male. Generally, female detainees were accommodated at Don Dale. The great majority of detainees were Indigenous. Mr Yaxley said that he could recall only "a handful" who were not Indigenous and Mr Donald said that he could recall only one or two. 39 The number of detainees in detention at any one time could fluctuate markedly and quickly, depending upon the number and length of remands and sentences. 40 All detainees were classified according to their risk profile. That classification was determined in accordance with a Classification Manual by reference to a number of factors, including the nature and extent of the detainee's offences, their behaviour in detention, the risk of them escaping, the risk of them causing harm to themselves or to others, and the risk of them causing damage or disruption in the detention centre. All detainees were subject to regular behavioural assessments and classification reviews. These included assessments known as "SCATE assessments" and daily behaviour reports. 41 The more serious incidents in the detention centres were recorded in an "incident report" entered in the electronic "Integrated Offender Management System" (IOMS). 42 When reviewing a detainee's progress and behaviour in the detention centre, the staff had access to the IOMS reports, the SCATE assessments, the daily behavioural reports as well as educational, medical and case manager reports. 43 Apart from the formal recording of classifications, the classification of detainees was indicated by the colour of the shirt they were given to wear. The classification structure, and the shirt colours assigned to each classification, were as follows: New admittees to detention Black Shirts High or maximum security detainees Red shirts Medium security detainees Orange shirts Low 1 classification detainees Green shirts Low 2 classification detainees Blue shirts Open security detainees Yellow shirts
44 Greater privileges (by way of greater freedoms and rewards) were given to those with lower security classifications, as an incentive for good behaviour. Mr Donald said, and I accept, that generally the "classification system works very well to reinforce and reward positive behaviours", but that it worked better at Don Dale than at ASYDC. 45 The applicant's classifications from 25 May 2011 until he ceased to be held in youth detention in August 2012 were as follows: • 25 May 2011 to 8 June 2011 - Medium • 8 June 2011 to 6 July 2011 - Low 1 • 6 July 2011 to 20 July 2011 - Low 2 • 20 July 2011 to 26 September 2011 - Low 1 • 26 September 2011 to 2 November 2011 - Medium • 15 October 2011 - transfer from ASYDC to Don Dale • 2 November 2011 to 6 December 2011 - Low 1 • 6 December 2011 to 26 December 2011 - Medium • 26 December 2011 to 14 February 2012 - Maximum • 14 February 2012 to 20 March 2012 - Medium • 20 March 2012 to 18 April 2012 - Low 1 • 18 April 2012 to 20 June 2012 - Maximum • 20 June 2012 to 11 July 2012 - Medium • 11 July 2012 to 7 August 2012 - Low 1
The Applicant's witnesses 46 The applicant gave evidence himself and led evidence from his grandmother, Ms Palmer, from Mr Peter Muir, and from a forensic psychologist, Mr Stephen Ralph. Mr Muir gave evidence as an expert in matters concerning the detention of youths. The respondents challenged his expertise and it will be necessary to make findings on that topic.
The Applicant 47 The applicant was 25 years old at trial. He was educated to Year 7 level, and it seems that, before going into detention, he had ceased schooling during Year 8. His school reports indicate that the applicant had experienced difficulty in progressing through his education. However, Ms Palmer described the applicant as having been good at maths. The applicant also had some schooling while in detention. The Education Assessment Forms completed in the ASYDC for the period 27 April to 12 September 2011 record that the applicant's attitude to his education was at times poor. I note that, in the report of 5 July 2011, the teacher reported that the applicant "is capable of a higher standard of academic performance but his lowered self-confidence causes him to give up rather than take risks". The teacher also reported that "Marley can work at a year 10 academic standard within [Northern Territory Curriculum Framework] guidelines". The extent to which the applicant continued schooling after September 2011 is unclear as an IOMS Report of 1 September 2011 records the applicant as having "decided to drop out of School". 48 It is apparent that the applicant underwent some vocational education while in detention as an email from Mr B Clee, a YJO, on 28 June 2012 recorded that one of the reasons why the applicant wished at that time to return to Alice Springs was to complete "the Certificate 1 in Pastry and Baking, currently running through Charles Darwin Uni" at the ASYDC. 49 In May 2018, Mr Ralph assessed the applicant's cognitive functioning using the Raven's Standard Progressive Matrices, which he described as a test of observation and clear thinking. He reported that this measure placed the applicant in the category of "Grade IV - Definitely below average in intellectual capacity" and on the very cusp of "Grade V - Intellectually Impaired". 50 Mr Ralph noted that the applicant is unable to read or write but did not say whether that is what the applicant told him, or whether it was based on testing. In either event, it is contradicted by the evidence at trial. The documentary evidence included letters handwritten and signed by the applicant while in detention and, in evidence-in-chief, he confirmed that he was able to read them (although on one occasion he accepted counsel's invitation to read the document for him). Later, when asked directly about his reading ability, the applicant said that he was "not that good at reading" and described himself as a "slow reader". 51 The matters mentioned above, and my own observation and assessment of the applicant when giving evidence, including when he was asked to read documents, suggest that the categorisation of the applicant as close to borderline intellectually impaired may underestimate his cognitive capacity. 52 Nevertheless, I accept that the applicant has had limited education and that he has some cognitive limitations. I have taken these into account when assessing his evidence. 53 Although the applicant's criminal record suggests that he is no stranger to courtrooms, it was evident that he did not find giving evidence easy or pleasant. For much of his evidence he had a subdued demeanour, and at times a taciturnity. Mr Donald, whose evidence I regarded as honest and reliable, also described the applicant as "often taciturn" in his dealings with him. There were numerous occasions in his evidence when the applicant said that he had no memory of matters relating directly to the incidents in issue. 54 I have endeavoured to keep in mind that there may be multiple reasons for the applicant's subdued manner, taciturnity, and statements of poor memory, including cognitive limitations. I also take into account the applicant's cultural background. 55 Much of the applicant's evidence was inconsistent with the contemporaneous records. It is of course possible that it is those records which are unreliable, but I saw no reason to suppose that that was so. The applicant's evidence was also inconsistent in several respects with the evidence of others, whose evidence I did consider reliable. 56 It was put to the applicant more than once that he was fabricating matters in his evidence with a view to advancing his interests in the litigation. He denied that that was so. Although there are significant sections of the applicant's evidence which I do not think are reliable, I did not have the impression at trial that he was intentionally giving dishonest evidence or dissembling. Amongst other things, there were several occasions when he made concessions which were seemingly against interest and several occasions when he did not seek to embellish his account, even though the opportunity to do so was open. My impression at the conclusion of the trial was that, on some topics, the applicant had become convinced of the unfairness of his treatment while in detention, and that that conviction had resulted in embellishments in his recollection. In addition, I had the impression that, with respect to some matters, the applicant has "locked into" a version of events, despite its implausibility or inconsistency with contemporaneous records. These impressions have been confirmed on my subsequent reading and re-reading of the transcript. 57 The consequence is that, generally, I am unwilling to make findings based on an acceptance of the evidence of the applicant when that evidence is inconsistent with the contemporaneous documents and, in some instances, inconsistent with the evidence of others. That in turn means that there are significant parts of the applicant's evidence which I do not accept.
Ms Palmer 58 The applicant's grandmother (Ms Palmer) is an impressive person and was in many respects a sound witness. It was very evident that she has a strong sense of the value of family and of the importance of the applicant's Aboriginal identity. Ms Palmer has obviously been a significant person in the applicant's upbringing and has sought to instil in him the values of her family and Aboriginal identity and culture. 59 Throughout the applicant's periods in detention, Mrs Palmer visited him regularly, weekly when he was in Alice Springs, and, from time to time, making the long return journey from Alice Springs to Darwin to do so when he was in Don Dale. She was influential in having the applicant transferred back to ASYDC in July 2012. Ms Palmer has a firm conviction that the applicant has been treated unfairly while in detention and I felt that that conviction influenced her evidence. For reasons to be given later, including the fact that the applicant had on some topics misled his grandmother about his own behaviour while in detention, there are some respects in which Ms Palmer's conviction is unfounded. There were also some aspects of Ms Palmer's evidence which I regarded as unreliable, and do not accept.
Mr Muir 60 Mr Muir was called to give evidence of an expert kind regarding the appropriate use of force and physical restraints in the youth detention environment. His academic qualifications are an Associate Diploma in Social Welfare obtained in 1982 from what is now the University of Western Sydney and a Bachelor of Arts from the Wollongong University obtained in 1989. He now conducts his own consultancy, specialising in youth justice, out-of-home care and child protection. 61 Between 1977 and 2012, Mr Muir was a member of the public service in New South Wales and from 1999 and 2008 occupied the position of Director Operations/Deputy Director General, Operations in the Department of Juvenile Justice. That position included responsibility for up to nine juvenile detention centres. Between 2008 and 2011, Mr Muir was the Director General/Chief Executive of Juvenile Justice and from 2011 and 2012 was the Assistant Director General (Service Delivery Improvement) for the Department of Family and Community Services in New South Wales. 62 Mr Muir acknowledged that he had never worked directly as a front line officer in a juvenile detention centre, had never worked in an adult prison and accepted that his involvement with youth detention had been at the executive management level. 63 During Mr Muir's cross-examination, counsel for the respondent objected to the admissibility of the two reports containing Mr Muir's opinions. The submission was that Mr Muir's lack of front line experience in a juvenile detention centre meant that he was not qualified by study, training or experience, to express the opinions which he did in the reports. I rejected that submission noting, amongst other things, that the objection was made after the reports had been received into evidence without any objection to Mr Muir's expertise to express the opinions they contained. In any event, it was evident that Mr Muir does have expertise acquired by experience. This includes his experience in the positions mentioned above and his experience in overseeing the design of training concerning the use of force in a youth detention environment, setting the parameters for, and reviewing, the materials prepared by his subordinates on the topic, and overseeing its implementation and integration into the training of front line officers. I accept that, by reason of his role in managing the large juvenile detention system in New South Wales, Mr Muir has acquired some expertise in relation to the use of force in the juvenile detention environment. His opinions, like those of any other expert, should be assessed taking into account the nature and extent of the expertise which he has acquired.
Mr Ralph 64 I will refer to Mr Ralph's evidence later in these reasons.
The respondents' witnesses 65 The respondents led evidence from 17 witnesses. These were: Mr Kenneth Middlebrook, the Executive Director of Correctional Services in the Northern Territory until 4 September 2012, and then the Commissioner of Correctional Services; Mr John Fattore, who between 11 January 2010 and 28 October 2011 was the General Manager of Youth Detention based at Don Dale and, in that period, the Superintendent of both Don Dale and ASYDC. Since October 2011, Mr Fattore has been the General Manager of Community Corrections in Northern Territory Correctional Services; Mr Philip Brown, who from 2010 until 2012 was the Acting Deputy Director of Operations for both Corrections and Juvenile Justice in the Territory; Mr Michael Yaxley, who from October 2009 until 28 August 2013 held the position of Assistant General Manager of Youth Detention in the Territory. In 2011, Mr Yaxley acted as General Manager of Youth Detention on several occasions when Mr Fattore was unavailable, and he acted continuously in that position from 31 October 2011 until 19 November 2012. On 31 October 2011, he succeeded Mr Fattore as Superintendent of Don Dale and ASYDC; Dr Christine Connors, the General Manager, Darwin Region and Strategic Primary Health Care Branch in the Top End Health Service (TEHS); Mr Gregory Donald, who was employed as a Case Manager at Don Dale between 2011 and 2015; Mr Barrie Clee, who from 2009 was the officer in charge of the ASJHC and then the ASYDC, but who performed duties at Don Dale from time to time; Mr Andrew McAllan, who in 2011 and 2012 worked as a YJO at ASJHC and ASYDC; Mr Randall Edwards, who from August 2011 worked as a YJO at Don Dale; Ms Julie Auton, who from April 2008 until January 2012 was a Chief Prison Officer at DCC, and from January 2012 a YJO at Don Dale; Mr Kalia Mangawai, who from late 2011 worked at Don Dale as a YJO; Mr Michael Hall, who has been a Senior Corrections Officer at DCC since January 2004; Mr Andrew Nicol, who has been a Corrections Officer with the Territory Department of Corrections since June 2010 (and since 2016 a Senior Correctional Officer); Mr Jacob Bonson, who has been a Corrections Officer with Northern Territory Corrections since July 1999; Mr Brian Leibhardt, a Corrections Officer at the DCC; Mr Nicholas Irwin, who has been a Corrections Officer with Northern Territory Corrections since 2005; and Ms Maria Pikoulos, a solicitor in the office of the Solicitor for the Northern Territory. 66 Part of the evidence in chief of Mr Fattore, Mr Yaxley, Mr Donald, Dr Connors and Mr Bonson, being their evidence on background and contextual matters, was provided by way of affidavit. Most of their evidence concerning the particular events and circumstances on which the applicant based his claims was given orally. Mr Leibhardt and Ms Pikoulos were not required to attend for cross-examination on their affidavits. 67 In addition, the Territory led expert evidence from two witnesses: Dr Gosia Wojnarowska, a Forensic Psychiatrist; and Mr Paul Conway, who has expertise in the management of youths in detention centres. 68 Before addressing the applicant's particular claims, it is appropriate to address the meaning of the "isolation" to which s 153(5) refers, as this relates to more than one of the applicant's claims.
The "isolation" to which s 153(5) refers 69 The terms of s 153(5) are set out in these reasons, at [26]. It was part of the YJ Act at all times material to these proceedings. 70 Division 8 of the Regulations as in force at material times had the heading "Management of detainees". Regulation 72(1) in Div 8 provides that a detainee must not be isolated in a cell except under s 153(5) of the YJ Act. Its effect is that s 153(5) is to be regarded as stating exhaustively the circumstances in which a superintendent may isolate a detainee in a cell. 71 Regulation 72 imposes obligations on superintendents with respect to detainees who are isolated: … (2) If a detainee is isolated: (a) the detainee must be continuously monitored by closed-circuit television or physical observation by a member of staff; and (b) written observations by a member of staff, including the date, time and name of the member of staff, must be recorded at intervals not exceeding 15 minutes. (3) The Superintendent must keep a journal recording: (a) the date and time a detainee is isolated; and (b) the name of the detainee; and (c) the reason why the detainee was isolated; and (d) the time the on-call person in charge was notified and that person's name; and (e) the observations of a member of staff at intervals not exceeding 15 minutes and the name of the member of staff making the observation; and (f) the date and time of exercise periods and ablutions; and (g) details of any approval by the Director for isolation exceeding 24 hours; and (h) the date and time the detainee is released from the isolation cell. 72 Taken in combination, s 153(5) and reg 72 reflect an understanding that periods of isolation may be detrimental for youths in detention and are times of particular vulnerability. 73 Counsel for the respondents submitted that the isolation to which s 153(5) refers is the "complete inability for any kind of interaction between the detainees" with the consequence that, provided that the detainee had the ability to have interaction of some kind, there was no isolation. 74 The term "isolated" and its cognates are not defined in the YJ Act. The relevant meaning of "isolate" in the Macquarie Dictionary is: to set or place apart; detach or separate so as to be alone. That meaning and the composite term in s 153(5) "isolated from other detainees" suggests that the term is used in the sense of keeping the detainee separate or apart from other detainees. This implies that there must be "other detainees" from whom the detainee may be isolated, so that a detainee who is the sole occupant of a detention centre will not be isolated in the requisite sense: Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 at 328; Hamzy v Commissioner of Corrective Services (NSW) [2011] NSWSC 120, (2011) 80 NSWLR 296 at [81]. It may also be pertinent that the term "other detainees" is not prefaced by an adjective such as "some" or "all". 75 Although it is common for legislation or regulations concerning imprisonment or detention to limit the circumstances in which a prisoner/detainee may be held separately from other prisoners, there seems to have been relatively little judicial consideration of the term "isolate" or its cognates in this context. 76 Rule 43 of the Prison Rules 1964 (UK) made pursuant to the Prison Act 1952 (UK) (Prison Act UK) was a counterpart of s 153(5). It provided (relevantly): (1) Where it appears desirable, for the maintenance of good order or discipline or in his own interests, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the governor may arrange for the prisoner's removal from association accordingly. (2) A prisoner shall not be removed under this Rule for a period of more than 24 hours without the authority of a member of the board of visitors, or the Secretary of State. … In Williams v Home Office (No 2) [1981] 1 All ER 1211, Tudor Evans J regarded it as clear that r 43 provides an administrative power "to remove a prisoner wholly or in part from association with other prisoners", at 1228. 77 In Bromley v Dawes (1983) 34 SASR 73 at 78, White J said of the term "separately confined": Separation means separation and no more. It has its origins in old legislation. Cf. the United Kingdom Act, 28 & 29 Vict. Cap. 126 s 17, separation of men from women, debtors from criminals, specially punished prisoners from ordinary prisoners, children from adults and the like. 78 In Sandery v South Australia (1987) 48 SASR 500, Olsson J said of the power in s 36 of the Correctional Services Act 1982 (SA) to "segregate" a remand prisoner that segregation "could, in practice, range from solitary confinement of a single prisoner to a separate confinement of a group of prisoners", at 509. 79 In Fricker v Dawes (1992) 57 SASR 494, one of the issues was whether the plaintiff had been kept, unlawfully, in solitary confinement. In rejecting that claim, Mullighan J said: [T]he evidence does not disclose that the plaintiff has been kept in solitary confinement. Apart from the periods when he was the subject of segregation and separation, he has been permitted to mix with other prisoners in the Division, although not all of them. Some prisoners, such as protectees, have been kept in an isolated group for reasons of their safety. The plaintiff has not been in association with them. From time to time he has been kept away from other prisoners for reasons of security. On occasions he has exercised alone, but in the main he has associated with other prisoners in the Division when he has been out of his cell. He has enjoyed various benefits and privileges, even though to a lesser extent than prisoners in B Division. His incarceration cannot be described as solitary confinement even though his association with other prisoners is curtailed due to the length of time he spends in his cell. 80 As in all cases of statutory construction, s 153(5) should be construed by reference to its text, context and purpose - see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 and 408 in which Brennan CJ, Dawson, Toohey and Gummow JJ said: [T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) use as 'context' in its wider sense to include such things as the existing state of the law and mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended remedy. (Citation omitted) 81 In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [37], Gageler J, after referring to the passage in CIC Insurance v Bankstown Football Club just quoted, said: … The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility "if, and in so far as, it assists in fixing the meaning of the statutory text". (Citation omitted) 82 Consideration of context is important in the present case given that s 153(5) operates in the practical environment of a detention centre and with respect to the detention and well-being of youths, being persons under the age of 18 years - see s 6 of the YJ Act. 83 With limited exceptions, neither the YJ Act nor the Regulations in force at material times contain provisions with respect to the placement of detainees within a detention centre. The exceptions are s 153(5) and reg 72 with respect to isolation, s 154 with respect to the transfer of a detainee to an adult prison, and s 162 and Div 3 of Pt 5 of the Regulations with respect to at-risk detainees. It seems that, subject to these considerations and the implied condition of reasonableness, superintendents have a discretion as to the appropriate placement of detainees within the detention centre. 84 The evident purpose of s 153(5) is to limit the circumstances in which youths in detention will be deprived, at least involuntarily, of contact with, and the company of, other detainees and thereby to address a vulnerability to which they are likely to be subject. As indicated, it can be taken to reflect a legislative recognition that the contact and companionship of others is likely to be beneficial to the mental well-being of the young people in detention, by ensuring that they will have access to the reassurance, solace and support which their fellow detainees can provide. 85 Some features of s 153(5) may be noted. It is expressed in terms indicating the vesting of a power in superintendents, albeit a power which is subject to some qualifications. Putting reg 72(1) to one side, it is probable that, even absent s 153(5), the functions and powers of superintendents permitted the isolation of detainees - see s 151(2) and (3) and s 152(1). That being so, s 153(5) is more naturally to be understood as imposing a fetter on the superintendent's power, by limiting the purposes for which a detainee may be isolated and the period for which he or she may be so isolated to the protection of the safety of another or for the promotion or maintenance of the good order or security of the detention centre. The latter expression is no doubt to be construed broadly but it does have limits. 86 Section 153(5) does not use the term "solitary confinement" which, on its face, has different connotations. 87 Taken at face value, s 153(5), in combination with reg 72(1), could be understood as precluding a superintendent from permitting a detainee to sleep alone in a room as a privilege, for comfort, to facilitate sleeping, to accommodate a detainee's wish to be alone, to inhibit the spread of infectious diseases or when the gender or spread of ages of detainees make it appropriate for one detainee to sleep separately. 88 However, s 153(5) forms part of a section with the heading "Discipline". Section 55(2) of the Interpretation Act 1978 (NT) has the effect that a heading to a section in an Act does not form part of an Act unless (relevantly) the Act was enacted after 1 July 2006. As the YJ Act received assent on 22 September 2005, the heading to s 153 is not to be treated as part of the YJ Act. However, this does not mean that the heading may not be considered in construing s 153(5) as, being part of the YJ Act when it was enacted, it forms part of the extrinsic material to which regard may be properly had: see Pearce DC, Statutory Interpretation in Australia, 9th Edition, LexisNexis Butterworths, 2014 at [4.59] and [4.65]. In any event, the subject matter of s 153 is aspects of the maintenance of discipline within a detention centre. That makes it natural to understand s 153(5) as imposing a fetter on the power of superintendents to isolate detainees for disciplinary purposes, so as to confine the exercise of the power (broadly speaking) to the purposes of maintaining safety, good order and security in the detention centre. 89 In JB v NT, Southwood J and Graham AJ (with whom Riley AJ agreed) said, at [123], that s 153(4) and (5) of the YJ Act are not concerned with discipline but had been enacted to ensure that superintendents do not evade the strict approach to discipline by using those powers to inflict a de facto punishment upon a detainee. If by this, their Honours meant that s 153(4) and (5) do not qualify the actions which superintendents may take in maintaining discipline in a detention centre, I respectfully disagree. The word "however" with which s 153(4) commences is a strong indication that it is a qualification on s 153(3), which is itself a qualification of s 153(2). In context, it is natural to understand s 153(5) as qualifying superintendents' powers with respect to discipline by indicating the particular purposes and periods for which a detainee may be kept in isolation. That is to say, superintendents may isolate a detainee only within the circumstances prescribed in s 153(5) but not otherwise as a disciplinary measure. Superintendents are not empowered to use isolation as a punishment in the maintenance of discipline generally: isolation must be for one or other of the purposes to which s 153(5) refers. Regulation 72 precludes isolation for any other purpose. 90 This seems consistent with a more general view that forms of solitary confinement should not be used for purposes of punishment: Farr v Corrective Services Commission (Qld) (1999) 109 A Crim R 153 at 157; Bromley v Dawes at 78. 91 Section 153(5) seems to speak to the power of a superintendent to impose isolation on a detainee. It may not be applicable to actions taken by the superintendent in response to a request from a detainee or, possibly, with the agreement of a detainee. 92 Section 153(5) should be understood as intended to operate in a context in which detainees, having been deprived involuntarily of their liberty, will necessarily be subject to some restrictions on their ability to intermingle and interact with each other as they choose. The ordinary routines and regimens of a detention centre will mean that that is so. By way of example, several witnesses referred to the nightly lockdowns in the detention centres. The Northern Territory legislature may be taken to have known, when enacting s 153(5), that these lockdowns, including the separation of detainees for sleeping, are an ordinary incident of detention centre routine. It may be taken to have known that some separation of detainees of different genders or different ages would at times be appropriate. It may be taken to have expected, for example, that if there was only one female detainee in a detention centre, she may necessarily have to be kept apart from other detainees for some part of each day. There may be other circumstances in the ordinary routine of a detention centre in which some separation of a detainee is to be expected. 93 These considerations lead me to conclude that isolation of a detainee from other detainees to which s 153(5) speaks is the act of a superintendent which, by the manner of confinement of the detainee, keeps the detainee separate and apart from other detainees so as to preclude contract or interaction with other detainees. This means that a detainee will be isolated in the relevant sense when precluded from participation in detention centre activities even if the detainee can maintain some level of communication with some detainees. 94 Ordinarily, isolation in the sense just explained will occur when the detainee is confined to a particular room or cell and thereby prevented from intermingling or interacting with other detainees in the general activities and routine of the detention centre. However, a detainee may be isolated from other detainees even when not confined to a cell. It is the nature and quality of the "separation" from other detainees which is the critical matter, not the place where that separation occurs. So a detainee may still be isolated even when in an area larger than a cell. 95 Accordingly, I do not accept the submission of counsel for the respondents that isolation involves "the complete inability for any kind of interaction between detainees". Some degree of communication with other detainees will not be inconsistent with isolation if the detainee is otherwise kept separate and apart from them. Depending on the circumstances, the preclusion of a detainee from contact with other detainees in the usual activities within the detention centre may be an isolation. A detainee's ability to communicate with another detainee will not necessarily mean that the circumstances in which the detainee is held do not constitute isolation. Nor will the fact that one other detainee is accommodated in a shared cell, if the circumstances otherwise constitute "isolation". 96 It will be a question of fact whether particular limitations and restrictions imposed in a given case constitute isolation for the purposes of s 153(5). 97 This is the understanding of the term "isolated from other detainees" which I will apply in these reasons.
The Alice Springs Youth Detention Centre 98 Before addressing the applicant's particular claims, it is convenient to make some findings concerning the ASYDC and Don Dale as they were in 2011 and 2012. 99 The ASYDC was opened on 27 March 2011. Before that time, youth detainees who had imminent court appearances in Alice Springs had been held temporarily in the ASYHC. Those detainees who were to be held for more than a few days were usually transferred to Don Dale. 100 The ASYDC is located within the grounds of the Alice Springs Correctional Centre (ASCC), the prison for adult prisoners in Alice Springs. It was established by modifying the accommodation which had been used to accommodate low risk adult prisoners. 101 At the times relevant in these proceedings, the ASYDC comprised two wings, known as the "East Wing" and the "West Wing". The two wings were separated by a classroom, a living area, a kitchen, a room for teaching staff and a central corridor. The East Wing contained most of the rooms used for the accommodation of detainees. These included two "dormitories" which could, when required, accommodate up to four detainees each. One of these dormitories was known as "Room 12" or "Cell 12". There were four other rooms in the East Wing which were intended for use by a single occupant but in which a second detainee could be accommodated by putting a mattress on the floor. 102 The West Wing contained the office, medical and administrative facilities. It also had two rooms, Room 2 and Room 5, which could be used for the accommodation of detainees. In one version of the floor plan for the ASYDC, Room 2 is described as an "Isolation" room and Room 5 is described as an "At Risk" room. In the pro-forma documents used for the shift reports in ASYDC, Room 5 was described as "Isolation Room". A recreation yard was located on the northern side of the building. 103 Mr Clee said, and I accept, that Room 5 was a multi-purpose room in that it was used to accommodate detainees who were "at risk", to accommodate new admittees, for accommodation when ASYDC was full, and for the "placement" of detainees. In effect, "placement" was the isolation of a detainee, usually following an incident involving serious conduct by the detainee. A detainee in placement was kept in the Room and was not permitted to engage in the usual activities in the ASYDC or to mingle with other detainees. Detainees who were not on "placement", but who were accommodated in Room 5 when the numbers in the ASYDC made that necessary, engaged in the same activities as did all other detainees. 104 Unlike the other accommodation rooms, Rooms 2 and 5 were air conditioned but they did not have fixed furniture. Beds were created by piling two or three mattresses on top of each other. 105 ASYDC was used for the detention of both male and female detainees. 106 The accounts in the evidence of the capacity of the ASYDC varied and I am satisfied that, to an extent, it had "elastic" walls. Mr Yaxley said, and I accept, that ASYDC had been notionally designed to accommodate 16 detainees. He considered, however, that it could comfortably accommodate only 10-12 detainees. Above that number, more room sharing was required than was appropriate which, as indicated, was achieved by putting mattresses on the floor. 107 A number of witnesses said that it was easier to operate ASYDC with smaller numbers than when it had 16 or more. This was because of the limited size of the shower, toilet, recreation and eating areas. Mr Clee said that 16 detainees could not be seated comfortably in the dining area at any one time. In addition, the Education Department of the Northern Territory, which provided teaching in the ASYDC, had a policy that, by reason of the size of the classroom, there should be no more than 10 students in it at any one time. That meant that classes had to be split. Although the evidence about this was not specific, my impression was that that policy was not always enforced.
The Don Dale Detention Centre 108 Don Dale was located in Darwin in close proximity to the DCC. It comprised two sections known as the "Main Centre" and the "Medium Section" respectively. The Main Centre contained nine accommodation rooms capable of housing two or three detainees in each. The Medium Section contained two large dormitory style rooms designed to accommodate up to 6 detainees in each, plus six single rooms which were generally allocated to detainees who had Low 2 and Open classifications. 109 The Main Centre also had two "At Risk" rooms which were airconditioned and monitored by CCTV and an area of high security accommodation which included the Behavioural Management Unit (the BMU), comprising five high security cells. The facilities at Don Dale included a basketball court, a swimming pool (which was filled in after 26 December 2011), a music room (which was converted to accommodation in mid-2012), and education facilities. 110 The Medium Section contained a large recreation room containing video games, a television, a pinball machine and table tennis table, facilities for woodwork and metal work and, from mid-2012, a music room. Unlike ASYDC, Don Dale also had a large oval which could be used for sporting purposes. 111 It seemed to be non-contentious that the activities, services and programs available to detainees in Don Dale were superior to those at ASYDC. Mr Yaxley referred, amongst other things, to a vocational technical studies program using the woodwork and metal work facilities, and to the swimming and the sporting facilities. He said, and I accept: [30] The better facilities at Don Dale gave the detainees better outlets for their energy and greater opportunities for rehabilitation. The better facilities also allowed for the classification system (discussed further below) to operate more effectively. Detainees achieving a low enough classification were accommodated in the Medium Section where they were afforded greater freedom and had access to the recreation room and oval. This was a significant incentive to behave. 112 Mr Fattore deposed that ASYDC was less suitable than Don Dale for the accommodation of long term detainees because it was smaller, less secure and afforded them less recreational, rehabilitative and vocational opportunities. He also noted that detainees who were transferred from ASYDC to Don Dale generally remained there until their release, unless court hearings or some other reason warranted their return to Alice Springs.
Overview of the applicant's claim 113 In April 2011, the applicant was held at the ASYDC. In the final version of his statement of claim (the 6SC), he alleges that, after lockdown on the night of either 7 or 8 April 2011, he was removed from his room by two YJOs and held in an "isolation cell" overnight. The applicant pleads that that placement was not authorised under s 153(5) or under any other provision of the YJ Act or the Regulations, was undertaken for the purposes of punishment, and that it constituted false imprisonment. 114 Although not stated expressly, this claim seemed to be made against both respondents, with the claim against the Superintendent made in the alternative to the claim against the Territory.
Overview of the respondents' filed defence 115 The respondents admitted that the applicant was removed from his room on the night of 8 April 2011 and placed in another room overnight and pleaded that this was done in order to facilitate a search for a mobile telephone in the possession of the applicant. They denied the contraventions of the YJ Act alleged by the applicant, in particular, that the overnight placement constituted "isolation" within the meaning of s 153(5) of the YJ Act and said that it was, in any event, authorised by s 151(3)(c) and 152(1) of the YJ Act.
The evidence as to the circumstances leading to the placement 116 The evidence indicates that the events in question occurred on the night of Thursday, 7 April 2011. The Court heard evidence about those events from three witnesses. These were the applicant, Mr Clee who at the time was the officer in charge of the ASYDC, and Mr McAllan, who was a YJO at ASYDC. 117 It was common ground that detainees were not permitted to have a mobile phone in their cells, at least without permission. Mr Middlebrook said that the potential uses of mobile phones in detention centre environments meant that they were considered "serious contraband". While I accept Mr Middlebrook's evidence, I also take into account the evidence of Mr Clee who was more of a front line officer than Mr Middlebrook that the incident involving the mobile phone on 7 April had been relatively minor. 118 The applicant said that the nightly lockdown at ASYDC generally finished at about 7 am; that detainees would then shower and have breakfast; that Monday to Friday the detainees attended school from 9 am to 3 pm (all in one classroom); and that, in free periods, detainees could play sport, sit around, or watch TV. 119 On the night of 7 April 2011, the applicant and two other detainees (Mr Turner and Mr Kennedy) were accommodated in Room 12. They, and in particular the applicant and Mr Kennedy, were using a mobile phone. None of the three detainees had permission to have a mobile phone. For present purposes, it is not necessary to make detailed findings concerning the manner by which they came to have the phone. 120 In his evidence, the applicant said that the three detainees had been using the phone to listen to music. They had been unable to use it to make calls because of a lack of credit. 121 Prison officers in the ASCC, who monitored the CCTV cameras in the ASYDC, observed the detainees using the mobile phone and, at about 9.45 pm, alerted Mr Clee. He was off duty at the time but attended ASYDC soon after. He and Mr McAllan went to Room 12 at about 10.10 pm. When they entered the room they asked for the mobile phone. There was a difference in the evidence as to what then occurred. 122 The applicant said that, in response to the officers' question, he had pointed to the phone hanging on a fan fixed to a wall near the ceiling. It was on the charger making use of the power point near the fan. The applicant said that the two officers took the phone and "told us to pack our stuff up and took us down the back … [to] the back cells". It was the applicant and Mr Kennedy who were relocated to the back cells. 123 The term "back cells" was commonly used at the ASYDC to refer to Rooms 2 and 5. The applicant described these cells as being approximately three metres by three/four metres, each with a blocked off window preventing light entering the cell, a steel door with an inspection aperture and, apart from a mattress and a pillow, as having no chair, television or a radio. He was alone in the cell (Room 5). Mr Kennedy was in Room 2. The applicant said that he had had difficulty sleeping that night, waking frequently and spending time walking up and down the cell. He said that he had lost count of how long he was in the isolation cell but was there "for a while" (with the implication being that it had been for more than one night). He had been aware at the time that Mr Kennedy was in the cell opposite him. 124 The applicant said that he had thought that he had been placed in the isolation cell because he had been caught with a mobile phone but he had not been told that by a YJO. Nor had he been told how long he would be kept in the isolation cell. He said that he had not wished to tell the YJOs how long he had had the phone or how he managed to get it into the cell because he didn't wish to be "dobbing people in". 125 The applicant acknowledged that, while in Room 5, he had tried to speak to Mr Kennedy in the cell opposite him. He did not accept that, on the morning of 8 April 2011, he had had breakfast and then gone to school, nor did he accept that on the night of 8 April 2011 he had been accommodated in a room with Mr Turner. He said that he had remained in the isolation cell by himself. Nevertheless, as already noted, the applicant's claim of false imprisonment concerned a single night only. 126 The evidence of Mr Clee and Mr McAllan, who were called by the respondents, was generally similar. To an extent, that was unsurprising as both had refreshed their memory by reading the reports of the incident prepared by Mr McAllan in the early hours of 8 April 2011, as well as other documents. 127 Mr McAllan said, that on entering Room 12, Mr Clee had told the detainees that they had been observed using a mobile phone and charger and asked about them. Both the applicant and Mr Kennedy denied knowledge of these items. The two officers then took the applicant and Mr Kennedy (Mr Turner was asleep) to the West Wing. There, they carried out separate strip searches of each detainee, without finding either the phone or the charger. They then placed Mr Kennedy and the applicant in what Mr McAllan described as the "behaviour management units", being Rooms 2 and 5 (although Mr McAllan was uncertain about the particular room in which each was placed). 128 Mr Clee and Mr McAllan then returned to Room 12 and asked Mr Turner about the location of the phone. He denied knowing its location. Mr Clee and Mr McAllan then conducted a thorough search of the room, in the course of which Mr McAllan located a mobile phone charger in a pillow case on the applicant's bed. Mr Clee stood on a bed and located the phone behind the protective perspex shield of the CCTV camera. They then went back to the West Wing and spoke separately to the applicant and Mr Kennedy. Each gave different accounts of how they had come to be in possession of the mobile phone and each blamed the other. 129 Later that night (in fact in the early hours of Friday, 8 April), Mr McAllan made the reports of the incident from which he and Mr Clee refreshed their memories. Both were entered (at that time) into the IOMS. The incident report included the following details: Area: Cell 12 - hidden behind surveillance camera shield Cause: Taken from detainees' personal property Action taken: Phone and charger confiscated Further action: Detainees Kennedy and Campbell moved to Isolation Cells Comments: OIC Clee to consider further action
130 In the officer's report, Mr McAllan included the following: [OIC] Clee arrived at ASJDC at 22:10. SYW McAllan assisted OIC Clee with strip searches of Kennedy and Campbell however we found them not to be in possession of the phone. They both were then escorted to the Isolation Cells without force. Clee and McAllan then returned to Cell 12 and questioned Detainee Jamal Turner about the phone and he stated that Kennedy had removed the phone from Detainee Campbell's property and was using it. He said he didn't know where it was. During the room search OIC Clee found the phone hidden behind the camera shield. We also discovered a charger for the phone hidden in a pillow case on Detainee Campbell's bed.
Findings concerning the applicant's placement in Room 5 131 I thought that both Mr Clee and Mr McAllan gave their evidence well. Each was clear and direct and did not seem to be embellishing or colouring his evidence. 132 Mr Clee said that, while the applicant was in ASYDC, he was at times "quite aggressive" but at other times "quite easy to talk to". He also said that the applicant interacted well with some staff but not with others. I had the impression that Mr McAllan may have been one staff member with whom the applicant did not interact so well. This seemed to be reflected in Mr McAllan's description of the applicant: Look, Marley was one of the more challenging detainees to interact with, that we had in the Centre. Typically, Marley didn't like to talk to officers, myself included, to any great degree. It seemed that Marley was typically doing one of three things in the Centre. He was either causing trouble, provoking someone else to cause trouble or he was shifting blame to someone else that he was involved in trouble himself. He wasn't one of the most trustworthy detainees I ever came across. 133 I did not consider, however, that Mr McAllan allowed this assessment of the applicant to colour his evidence concerning the events of 7-8 April. 134 The evidence of Mr Clee and Mr McAllan concerning the events on the night of 7 April 2011 was consistent with the written report which Mr McAllan made in the early hours of 8 April 2011, at a time when the events must still have been fresh in his memory. There was no suggestion that Mr McAllan's reports were concocted or for some other reason unreliable. It is true that Mr McAllan did not mention in his reports the enquiry made of the applicant as to the whereabouts of the mobile phone and the applicant's denial of any knowledge. However, in both his reports he referred to the phone having been "hidden" behind the camera shield. I am satisfied that that is strongly suggestive that the phone was not in the location which the applicant claimed he had indicated to the two officers. Moreover, there was no apparent need for Mr Clee and Mr McAllan to have conducted the strip searches or to have returned to Room 12 to conduct the room search had the applicant voluntarily pointed out the location of the mobile phone and the charger. 135 Accordingly, I accept the accounts of Mr Clee and Mr McAllan as to the circumstances in which the mobile phone and charger were found and reject that of the applicant. This was one of the matters which caused me to have doubts about the applicant's reliability generally. 136 However, the more critical questions in relation to this claim of the applicant concern his placement in Room 5, the purpose of that placement, and whether it amounted to a contravention of s 153(5) of the YJ Act. These questions give rise to three issues: (1) did the circumstances in which the applicant was held in Room 5 on the night of 7 April 2011 constitute "isolation" of the kind to which s 153(5) refers? (2) if so, did the Superintendent, by his subordinates Mr Clee and Mr McAllan, hold the opinion that the applicant should be isolated from other detainees: (i) to protect the safety of another person; or (ii) for the good order or security of the detention centre? (3) if each of these is answered in the affirmative, was the applicant isolated for more than 24 hours? 137 There is then a further issue, namely, whether the isolation of a detainee other than in accordance with the terms of s 153(5), may constitute the tort of false imprisonment? For reasons which will become apparent, it is not necessary to consider this issue in relation to the events on 7 and 8 April 2011.
Was the applicant isolated from other detainees? 138 I am satisfied that Mr Kennedy and the applicant were placed in Rooms 2 and 5 respectively at about 10.30 pm. Although the applicant does not complain that the period in which he was isolated was more than overnight, it is appropriate to make findings as to the circumstances which occurred on the morning of Friday, 8 April 2011. 139 The respondents' case was that, although the applicant had continued to be accommodated in Room 5 for at least a few days, he had from the morning of Friday, 8 April continued to participate in mainstream activities in the ASYDC. For this purpose, the respondents relied on the evidence of Mr Clee and Mr McAllan and on the inferences to be drawn from documents. 140 Each of Mr Clee and Mr McAllan said that the applicant had not been in "isolation placement", although the latter acknowledged that, by reason of being off shift on the morning of 8 April 2011, he did not know the time at which the applicant had been released from Room 5. Mr Clee said that he had not regarded the circumstances as warranting the isolation of either the applicant or Mr Kennedy, and that the applicant had not been treated in the manner of a detainee held in isolation. 141 The first document on which the respondent relied was the Incident Report completed by Mr McAllan on 8 April 2011 at 12.43 am, extracts of which have been set out above. Mr McAllan said that he had recorded "OIC Clee to consider further action" in the Incident Report because he knew that Mr Clee had not yet decided the action to be taken with respect to the applicant. I will record later the evidence of Mr Clee as to the action which would have been required had he decided to isolate the applicant. This document supports an inference that, at the time of its preparation, no decision with respect to the isolation of the applicant and Mr Kennedy had been made. 142 Secondly, the respondents relied on the shift reports. A shift report was made for each shift: the day shift which concluded at 2 pm; the afternoon shift which concluded at 10 pm; and the night shift which concluded at 6 am. Amongst other things, YJOs recorded in these reports the rooms in which the detainees were accommodated. Subject to the matter to be mentioned next, I consider that the inferences which can be reasonably drawn from the shift reports for the present purposes are limited. That is because the respondents did not tender the shift reports for the shift which concluded at 11 pm on 7 April 2011 or for any of the shifts on Friday, 8 April 2011. The shift reports for the day and afternoon shifts on Saturday, 9 April 2011 recorded the applicant as still being accommodated in Room 5, but the report for the night shift that day recorded him as accommodated in Room 12 with Mr Turner. That allows the inference to be drawn (which I do draw) that, at least by the night of Saturday, 9 April 2011, the applicant was no longer accommodated in Room 5. 143 The shift reports are completed on a pro-forma document which described Room 5 as "Isolation Room". For the reasons already given, however, I accept that the mere fact that a detainee is accommodated in Room 5 does not necessarily mean that he/she is being isolated. 144 The failure of the respondents to tender the shift reports for the afternoon and night shifts on 7 April and for the three shifts on Friday, 8 April gives rise naturally to a concern about whether there had been some selectivity in the documents provided to the Court. However, Mr Clee said that he had been unable to find these reports, and, in the light of an objection from counsel for the applicants, the respondents' counsel did not press his question asking Mr Clee to provide an explanation of why that was so. In that circumstance, it would not be appropriate to draw any inference adverse to the respondents on this issue, and the Court was not invited to do so. 145 The third document to which the respondents referred was the Detainee Behaviour Report for the applicant for the period 5-8 April 2011. In that report, the applicant's behaviour for Friday, 8 April 2011 was described as "acceptable". Mr McAllan, who completed the report for that day, recorded: Marley's day wasn't too bad today however he is still long way from his best behaviour and attitude. 146 As is apparent, Mr McAllan made no record of the mobile phone incident. In his oral evidence, Mr McAllan explained that, by saying that he had completed the report at about 8 pm, before the incident had occurred. I am satisfied that Mr McAllan is mistaken about that as the mobile phone incident occurred on the evening of Thursday, 7 April 2011. Nevertheless, it seems improbable that Mr McAllan would have described the applicant in the terms set out had the applicant been isolated. That was the effect of Mr McAllan's evidence. It was confirmed by Mr Clee who said that, had the applicant been placed in isolation, his behaviour and attitude should, in accordance with normal practice, have been recorded as "unacceptable". Moreover, Mr McAllan did not mark the boxes on the pro-forma document which would indicate that the applicant had either been "separated" from other detainees or put in "room placement". One or other of those boxes should have been marked had the applicant been isolated. Mr Clee said, and I accept, that a "room placement" occurred when staff thought it appropriate to place a detainee in a room for a short period, say 15-30 minutes, following an incident to give the detainee "time out on their own". "Separation" on the other hand, occurred after more serious infractions. Mr Clee said, and again I accept, that "separation" is marked when a detainee has been placed in isolation. The absence of such a mark is accordingly an indication that the applicant was not regarded as being in isolation during 8 April. 147 For reasons unexplained in the evidence, the pro-forma Detainee Behaviour Reports for the applicant contain no entries for Saturday, 9 and Sunday, 10 April 2011. 148 Fourthly, the respondents produced the Detainee Behaviour Report for Mr Kennedy for the period 5-11 April 2011. This document did not record Mr Kennedy as having been in separation or room placement on Friday, 8 April 2011 but did for Saturday, 9 April. The comments concerning Mr Kennedy for Friday, 8 April 2011 were as follows: Kennedy has not performed his rostered laundry duties for 4 days. His attitude is poor and he needs to lift his interaction and compliance with staff. 149 Mr Clee said, and I accept, that had Mr Kennedy been isolated, he would not have been able to do laundry and so there would have been no occasion for this comment. The respondents submitted that, if Mr Kennedy had not been in isolation on 8 April 2011, it could be inferred that nor had the applicant. Furthermore, Mr Kennedy is shown as having been isolated on 9 and 10 April 2011 and the comments referred specifically to him having been given "cell placement". The inference from the documents to which I will refer next is that Mr Kennedy's separation and "placement" on 8 April 2011 commenced after 5 pm that day. The respondents noted the absence of any corresponding entries for the applicant, contending that this too supported the inference that the applicant had not been in isolation on those days. 150 Next, the respondents drew attention to the officer's report on Saturday, 9 April 2011 concerning Mr Kennedy's conduct at about 5 pm that day. This report referred to misbehaviour by Mr Kennedy while playing cricket. His conduct included the throwing of a rock at the applicant. The report also recorded that Mr Kennedy was then placed in Room 5. Mr Clee said, and I accept, that the applicant could not have been outside playing cricket had he been in isolation. Further, Mr Kennedy could not have been given a room placement in Room 5 had the applicant been occupying that room. The respondents noted the absence of any documentation with respect to the applicant corresponding with the documents reporting Mr Kennedy's "room placement" at 5 pm. 151 Finally, the respondents relied on the fact that Mr Clee had not prepared the documents which would have been required had the applicant been put on "placement" or "separation" in Room 5. The evidence indicated that these would have included completion of the "Isolation Room Placement Journal", records of the monitoring of the applicant on 15 minute intervals in accordance with reg 72, as well as communications with Mr Yaxley. 152 In his final submissions, counsel for the applicant accepted that the isolation alleged by the applicant had ceased on the morning of 8 April 2011. 153 Having regard to these matters, I am satisfied that, although the applicant continued, after the morning of 8 April 2011, to be accommodated in Room 5, he was not kept in isolation for that day. Instead, after the conclusion of the lockdown on the morning of 8 April, he participated in activities in the ASYDC with the other detainees in the normal way. He was not kept separate from them nor precluded from interaction with them. The fact that the applicant resumed normal interactions on the morning of 8 April 2011 on the conclusion of the lockdown militates against the conclusion that his placement in Room 5 at about 10.30 pm on Thursday, 7 April 2011 constituted isolation for the purposes of s 153(5). 154 In summary, I am satisfied that the applicant was in Room 5 by himself from about 10.30 pm on the night of 7 April 2011 until the end of the nightly lockdown on the following morning. On the morning of 8 April 2011, the applicant resumed normal activities in the ASYDC and was not isolated. I doubt that the applicant can be regarded as having been isolated on the night of 7 April, but for the reasons which follow, it is not necessary to express a concluded view.
Was the applicant placed in Room 5 for a s 153(5) purpose? 155 Counsel for the applicant submitted that, while the initial transfer of the applicant to Room 5 may have been to facilitate the search for the mobile phone and charger or to undertake an investigation, those activities had been completed within a relatively short time. He submitted that the keeping of the applicant in Room 5 thereafter had been for a punitive purpose, which was not a purpose authorised by s 153(5). 156 Neither Mr Clee nor Mr McAllan had a clear memory of their purpose in placing Mr Kennedy and the applicant in Rooms 2 and 5. They referred variously to wishing to avoid the conflict between the applicant and Mr Kennedy which could arise from the detection of the mobile phone in Room 12 and to avoid collusion in the preparation of accounts of how they had come to be in possession of the phone. 157 I had the strong impression that Mr Clee in particular engaged in reconstruction on this issue. He said that "as far as I know … there was a bit of conflict between the three youths at the time and that it was decided then that … they were going to be separated off into separate rooms for the night". He understood that the applicant had threatened Mr Kennedy but acknowledged that he had not himself heard the threat. Mr Clee went on to say that the three detainees "might have ended up fighting and injuring each other and - we run on a very small nightshift component of staff". Mr Clee was not challenged in cross-examination about this evidence. Nor was it put to him that his purpose had been punitive. 158 Mr McAllan did not refer to threats between the applicant and Mr Kennedy. He gave the following evidence as to the purpose of the placement: XXN: And what was the purpose of placing them in those rooms? A: Well, the primary purpose was in case there was any angst between detainees. They had just been identified as having broken the rules of the centre, effectively, and so, if there was any angst between them, it kept a physical distance between them, so they couldn't get into a physical altercation. It also served to dissuade them from concocting a story or threatening one another to present a particular story, and also, to assist in that process, we would typically cover the window of the door, and on this occasion, we did cover the window of the door in each room, so the detainees couldn't see each other. XXN: And what's the - or how did you cover the window of the door? A: With a sheet of A3 paper. XXN: And what's the purpose of doing that? A: So they can't see each other. So they can't - there's no visual intimidation. There's also no - it also makes communicating and - and, again, colluding for a story more difficult. 159 There was other evidence in the trial indicating antipathy between the applicant and Mr Kennedy which provides some objective support for the officers' concern to avoid conflict. 160 Although the evidence concerning the purpose of Mr Clee and Mr McAllan for the placement of the applicant in Room 5 at about 10.30 pm on 7 April 2011 was incomplete, I am satisfied that it was for the purpose of avoiding the conflict between the applicant and of Mr Kennedy which could be anticipated given the finding of the mobile phone and charger. That meant that the placement was for "the good order" of the ASYDC, within the meaning of s 153(5) of the YJ Act. Accordingly, had I found that the applicant's placement in Room 5 for all or any of the period between 10.30 pm on 7 April and approximately 7 am on 8 April did constitute isolation, I would have found that it was authorised by s 153(5). I would also have found that the isolation was for a period of less than 24 hours.
Conclusion on the 7-8 April 2011 false imprisonment claim 161 This means that the applicant has not established the factual basis for his claim of false imprisonment with respect to his detention on night of 7 April 2011. That claim must be dismissed. It is not necessary to consider the other issues to which that claim gave rise.
Detention at Don Dale between mid-November and Christmas 2011 162 The applicant was transferred from ASYDC to Don Dale on 15 October 2011 and, with the exception of his imprisonment at DCC between 28 December 2011 and 2 January 2012 and a temporary transfer back to ASYDC in April 2012, was kept there until 9 July 2012. He was then transferred back to ASYDC and detained there until he turned 18, at which time he was transferred to ASCC. 163 The applicant pleaded that, on 14 October 2011, he had been induced to volunteer for transfer from ASYDC to Don Dale in order to solve overcrowding at ASYDC. He alleged that the detention officers at ASYDC had represented that: (a) the transfer would be for a period of two to four weeks, and that after that time he would be transferred back to ASYDC; (b) if there were no volunteers for transfer, those detainees serving the longest sentences would be transferred (the applicant knew that he was such a detainee); and (c) volunteering to transfer would assist his prospects of obtaining parole. 164 The applicant pleaded that he had requested retransfer to ASYDC in November 2011 but this had been refused. He alleged that Mr Yaxley had told him (it seems in November 2011) that he would not be transferred to ASYDC because: (i) he had been transferred to Don Dale because of behavioural issues; and (ii) he had first to achieve a lower security classification. 165 The applicant's primary claim is that the failure to transfer him back to ASYDC by mid-November 2011 constituted a breach of the duty of care owed to him by the Territory or, in the alternative, by the Superintendent of Don Dale. He claims in the alternative that, by December 2011, the Territory and the Superintendent knew that he was distressed, frustrated and angry about his continued detention at Don Dale and that it was affecting his welfare. Although the form of the applicant's pleading was not clear, his alternative claim seemed to be that the failure to transfer him, commencing in December 2011 and continuing until 9 July 2012 constituted a breach of the duty of care owed to him by the Superintendent of Don Dale. 166 The applicant claimed that the respondents' breaches of the duty of care had resulted in his "false imprisonment" and "mental harm". Although the form of the pleadings is curious, the applicant's counsel said that the former was intended to be a plea of a form of negligent false imprisonment. The claim of "mental harm" was not particularised but at trial the applicant relied on Mr Ralph's opinion that, in effect, he suffered from Post-Traumatic Stress Disorder (PTSD). I note that the matters on which Mr Ralph relied for his opinion did not include the fact that the applicant had been detained at Don Dale, rather than ASYDC, for an additional five weeks from 14 November 2011, when the other events commenced. 167 It is convenient to consider the applicant's primary case separately from his alternative case. That is because account must be taken in the consideration of the latter case of events and incidents which occurred on and after 21 December 2011, some of which are the subject of other claims of the applicant. I will treat the primary case as relating to the failure to transfer the applicant bank to ASYDC in the period from mid-November to 21 December (although it is convenient to use the shorthand "Christmas 2011") and the alternative case as encompassing the longer period. 168 The witnesses who gave evidence in relation to the applicant's transfer to Don Dale and the keeping of him in Don Dale until Christmas 2011 were the applicant, his grandmother Ms Palmer, and the respondents' witnesses Messrs Clee, Donald, Fattore, Brown and Yaxley. Before addressing the evidence, it is appropriate to refer to one further matter. 169 The Court was not provided with the remarks of Martin CJ when sentencing the applicant on 23 August 2011. However, the Warrant of Commitment for the applicant's detention was in evidence. It was addressed: To the Sheriff and Deputy Sheriffs, to all prison officers and to the superintendent of the Alice Springs Juvenile Detention Centre, Alice Springs in the Northern Territory. Having recited the offence for which the applicant was sentenced and the terms of the sentence, the warrant continued: YOU the said Sheriff and Deputy Sheriffs are ordered to deliver the offender to a prison officer, you the said prison officers are ordered to deliver the offender to the superintendent of the Don Dale Centre and you the said superintendent of that Centre are ordered to take the offender into your custody and keep the offender as provided for above. 170 As is apparent, the warrant required the applicant to be kept at Don Dale. However, it was not suggested in the trial that this had precluded the applicant from being kept at ASYDC. In particular, the respondents did not rely on the terms of the warrant as justification for the keeping of the applicant at Don Dale between November 2011 and July 2012.
The applicant's account of his transfer to Don Dale in October 2011 171 Although the applicant did not claim that the respondents had committed any tort or breach of statutory duty in transferring him to Don Dale, it is appropriate to make findings about what occurred as it provides the factual setting for later events. 172 By reason of the retrospective commencement of the sentence imposed on the applicant on 23 August 2011, his non-parole period of 12 months was to expire on 21 November 2011. However, the applicant was informed on 13 October 2011 that his Parole Officer would recommend that consideration of parole be deferred for six months. The Parole Board agreed with that recommendation. The Minute of the Parole Board's resolution on 19 October 2011 (four days after the applicant's transfer to Don Dale) states: The Board agreed with the recommendation to defer for 6 months to allow for the youth to demonstrate he can successfully obtain a low security rating in detention and his behaviour improves. Secretary to write letter to CAALAS and parents advising of such. 173 The applicant said that two detention officers, Mr Clee and Mr Tasker, had addressed a meeting of all the detainees in ASYDC on 14 October 2011; they had told the detainees that ASYDC was too full and that volunteers for transfer to Don Dale were sought; and that the transfers would be for two to four weeks until releases from ASYDC reduced the overcrowding. No one had volunteered. Mr Tasker then said that, if there were no volunteers, the detainees with the longest sentences would be transferred. He had looked towards the applicant as he said this. The applicant said that he understood this would mean that he would be transferred as, at the time, he had the longest sentence of all the detainees in ASYDC. He then volunteered. He made that decision even though he was concerned that it would mean that he would miss the twice weekly visits from members of his family. 174 In cross-examination, the applicant said that one of the reasons he had agreed to transfer to Don Dale was that the overcrowding in ASYDC made it uncomfortable. He also said that there had not been a promise that the transfer would be for only two to four weeks and that he had understood that, depending on the numbers in ASYDC, the period could be longer. He maintained, however, that nothing had been said to indicate that his return would be dependent on his behaviour. 175 As indicated, the applicant was transferred to Don Dale on 15 October 2011.
The respondents' account of the applicant's transfer to Don Dale 176 Mr Clee's evidence that, as at 14 October 2011, the ASYDC was overcrowded was confirmed by the Daily Census Record which showed that 20 detainees (all male) were held in ASYDC that night. This was four more than the nominal capacity of the ASYDC and well over its optimal capacity, to which I referred earlier. Most of the detainees were on remand but three, including the applicant, were serving sentences. 177 Mr Clee had no recollection of the meeting on 14 October 2011. He said that it was not uncommon for meetings of that kind to be held on an ad hoc basis when ASYDC became overcrowded; for detainees to be invited to volunteer to transfer to Don Dale; and for him to provide the Superintendent with a list of recommended transferees. Mr Clee said that, in making his recommendations, he took into account a number of factors, including the length of a detainee's sentence; the desirability of avoiding the expense of bringing a detainee back to Alice Springs for future court appearances; security considerations (as Don Dale was much more secure than ASYDC); and the greater availability of programs for detainees at Don Dale. 178 Mr Clee said that telling the detainees that volunteers would be at Don Dale for a limited period, or for a few weeks as claimed by the applicant, was not the kind of thing he himself would have said. He also said that the applicant's behaviour, as recorded in the ASYDC records, made it appropriate for him to be considered for transfer to Don Dale and denied that the applicant's Aboriginal ethnicity and heritage had played any part in the decision. He noted that every one of the 20 detainees in ASYDC at the time was Aboriginal. 179 I will refer shortly to an email which Mr Clee wrote on 13 November 2011 in which he disputed that the applicant had ever been told that he would be returning from Don Dale to ASYDC in about four weeks' time. The applicant had made that claim in a memo to Mr Yaxley on 11 November 2011. 180 In addition to Mr Clee's evidence, the respondents relied on inferences to be drawn from contemporaneous emails relating to the applicant's transfer to Don Dale: 14 October 2011 at 8.10 am - Mr Tasker to Ms Davis and Mr Fattore and cc'd to Mr Yaxley Hi Deb Can you please look into the Flight availabilities for Detainee Escorts to Don Dale. It is likely that we may have to transfer some Detainees to DRN due high numbers here. Detainees G Kennedy, M Campbell, [redacted], [redacted] have all expressed an interest [in] going to DRN. Shall advise during the course of the day pending court appearance. 14 October 2011 at 8.23 am - Mr Fattore to Ms Davis, Mr Tasker and Mr Clements and cc'd to Mr Yaxley Hi All, We have 9 in court today and could lose up to five, I would recommend no more than two transfers be organised at this stage with further planned after we know the court outcomes. Deb and Derek please work out who will be travelling and when and liaise with Anthony Clements regarding staff required from this end. … 14 October 2011 at 11.38 am - Ms Tanya Blakemore (a Senior Case Worker) to various persons including Mr Tasker, Mr Fattore and Mr Yaxley Hi everyone, I have just spoken with Derek [Tasker] re: transfer of Marley Campbell. Derek stated that Marley is keen to come up to Darwin. Marley was on the telephone to his mother while I was speaking with Derek. Derek spoke with Marley's mother who stated that it would make her sad but if Marley wanted to go then she was ok with this. … 14 October 2011 at 11.42 am - Mr Tasker to Ms Blakemore, Mr Fattore, Mr Yaxley and others Hi all As Marley is being transferred to the DDC, Marley's family has been approved to visit him this evening at approx 1700. 181 Mr Fattore said (and I accept) that he used the expression "I would recommend" in his email of 14 October 2011 as a means of conveying his approval. 182 Ms Wallace (a Case Worker) also recorded in her notes for 14 October 2011: Marley has recently indicated he would like to be transferred to DDC. Due to the high numbers of detainees at ASJDC it was agreed Marley would be transferred tomorrow. Marley spoke with his family on [the] phone from the Case worker's office and they will come and visit him tonight. 183 Mr Fattore accepted that he had probably discussed with Mr Clee or Mr Tasker the applicant's transfer to Don Dale, but said (and I accept) that he had no recollection of doing so. His evidence about the circumstances in which transfers generally occurred was broadly similar to that of Mr Clee. 184 Mr Yaxley did not have any recollection of being involved personally in the decision regarding the transfer of the applicant to Don Dale. Apart from his having been copied in on the emails set out above, there is no evidence that he was so involved. Mr Yaxley's evidence about transfers generally was again broadly the same as that of Mr Clee and Mr Fattore.
The absence of evidence from Derek Tasker 185 Neither party adduced evidence from Mr Tasker, who was an experienced SYO. Mr Tasker is no longer employed by the Territory Government but I accept that it was more natural for the Territory, rather than the applicant, to have called him to give evidence. 186 Ms Pikoulos, the solicitor with the conduct of the matter on behalf of the respondents, deposed to a conversation she had had with Mr Tasker in November 2018 in relation to his giving evidence. That discussion, together with information she had relating to other events, had led her to conclude that the potential for adverse mental health consequences for Mr Tasker made it inappropriate for her to contact him again with respect to the giving of evidence, and she had not done so. 187 That evidence of Ms Pikoulos was not challenged and I accept it. Accordingly, it is not appropriate to draw any inference adverse to the Territory from its failure to adduce evidence from Mr Tasker. Counsel for the applicant did not submit to the contrary.
Findings regarding the transfer from ASYDC to Don Dale 188 Counsel for the applicant accepted that the Superintendent had the power to transfer detainees from one detention centre to another, although he submitted that decisions about transfers had to be made in accordance with the "principles" evident in the YJ Act. 189 I am satisfied that the immediate reason for the applicant's transfer from ASYDC to Don Dale was the overcrowding at the ASYDC. In the context of the overcrowding, the applicant was an obvious detainee to be transferred, given that he had already been sentenced, had no upcoming court appearances in Alice Springs; had a significant period of his sentence yet to be served; and it was known that his parole officer was recommending that consideration of his parole be deferred. The greater security and greater opportunity for worthwhile activities at Don Dale also made it more appropriate. 190 The latter was an important consideration as the IOMS contains eight reports of incidents of misbehaviour by the applicant in the period from 18 August 2011 to 14 October 2011. One of these incidents, which occurred on 8 October 2011, was particularly serious as the applicant had struck a YJO, Mr Garoni, in the face more than once. The applicant denied having any memory of that incident. Although a long time had elapsed, I thought that surprising, given the nature of the incident. 191 The IOMS also recorded that the applicant was refusing school attendance. 192 There is no reason not to accept the IOMS reports as reliable. 193 Quite apart from the IOMS reports, the applicant was made the subject of an Intensive Management Plan (IMP) on 19 September 2011. Mr Middlebrook had issued a "directive" on 31 August 2011 relating to both prisoners in an adult prison and detainees in youth detention to the effect that those who "continually pose a threat to other prisoners, staff or … security … and [require] a greater degree of supervision and management than general [detainees]" should be subject to an IMP. The IMP of 19 September in relation to the applicant stated that it had been prepared "in order to maintain the good security of the [C]entre". It also stated that it had been "designed to address [the applicant's] behavioural patterns". 194 The summary of the applicant's security classifications set out earlier in these reasons confirms that there had been a deterioration in the applicant's behaviour after 22 August 2011. 195 I am satisfied that all these matters (occurring before 14 October 2011) made obvious the selection of the applicant for transfer to the bigger detention centre. 196 In my view, the applicant had accepted in the meeting on 14 October 2011 that it was inevitable that he would be selected for transfer even if he did not volunteer and so, with a view to making the best of it, had volunteered. The statements of the ASYDC staff in the contemporaneous records concerning the applicant's willingness to transfer should be understood in this light. That is to say, it was not the case that the applicant had sought transfer to Don Dale, but rather his seeing that his transfer was inevitable, and so seeking to make the best of it. In in that sense, he was not a reluctant volunteer. He had been at Don Dale on some five previous occasions and was well familiar with its routines and facilities. 197 At the same time, I am impressed by the fact that, in his memo to Mr Yaxley of 11 November 2011, to which I will refer shortly, the applicant referred to an understanding that he may be at Don Dale for a period of about four weeks only. I think it unlikely that the applicant would in November 2011 have invented that account. To the contrary, I think it more likely that something was said which led him to understand that the transfer may be relatively short term. Any doubt in that respect is removed by the admission in the respondents' filed defence that an (unidentified) officer had told the applicant that his transfer would likely be for several weeks only. I am satisfied that the applicant did believe, as a result of what he had been told before he volunteered for the transfer, that his period at Don Dale could be relatively short. That explains in part his letter to Mr Yaxley of 11 November 2011, and his disappointment on learning that retransfer would not occur. It also indicates that there was some justification for the applicant's belief that he had been misled.
Consideration of retransfer to ASYDC 198 The applicant said, and I accept, that, shortly after arriving at Don Dale, he began to feel homesick. He told his Case Manager, Mr Donald, on more than one occasion that he wished to return to ASYDC and on 8 November 2011 Mr Donald made a record of his home sickness. Mr Donald booked visits for the applicant's family and assisted the applicant to write a letter to Mr Yaxley who was then the Acting General Manager (and therefore Superintendent) of Don Dale. The letter (in the applicant's own hand) stated: Dear Mr Yaxley is it ok if I can go back to Alice Springs? I have been here now for the 4 week(s) that I agreed to come here for. My Mum is expecting me to return to Alice Springs detention centre soon as agreed when I came up here. Thanks for your time. 11/11/11 Marley Campbell 199 The applicant said that Mr Yaxley had told him before he wrote this letter, that he would have to attain a Low 1 security classification before he would be retransferred to ASYDC. If that be correct, the applicant's conversation with Mr Yaxley must have occurred relatively soon after he arrived at Don Dale, because the applicant achieved a Low 1 classification on 2 November 2011. The applicant said that he was angered by the requirement that he have a Low 1 classification because he had had a medium classification when he was transferred from ASYDC and had felt that he should be able to return there with the same classification. He agreed, however, in cross-examination, that he had known when he wrote the letter of 11 November 2011 that he would have to have a Low 1 security classification. 200 It is possible that the conversation with Mr Yaxley to which the applicant referred had not occurred until 2012, when he did not have a Low 1 classification. It is not necessary to make a finding about that. 201 The applicant did not give any evidence to support his pleaded claim that Mr Yaxley had told him that he had been transferred to Don Dale because of "behavioural issues", and Mr Yaxley was not cross-examined to the effect that he had made such a statement. 202 Mr Donald provided the applicant's letter to Mr Yaxley and others later on 11 November 2011. Mr Yaxley circulated the letter further (including to Mr Clee) and made it an item for discussion at the Management Meeting on Monday, 14 November 2011. 203 Mr Clee did not support the retransfer of the applicant to ASYDC on an ongoing basis. On Sunday, 13 November 2011, he circulated an email in which he: (a) disputed that the applicant had been told that he would return to ASYDC after four weeks, and said that the applicant had been transferred to Don Dale at his own request after expressions of interest had been sought from the detainees; (b) expressed concern about the effect which the applicant would have on a named 12 year old detainee in ASYDC, if he was returned; (c) expressed concern about the effect which the applicant's return would have on Mr Kennedy, saying that they "do not do well in the same building and are often at times very difficult to manage"; and (d) stated his belief, based on the internal reports, that the applicant was doing well in DDC and "is quite settled". 204 Mr Clee concluded by saying: [ASYDC] is a very small operation in comparison to DDC, and the dynamics of the centre will change dramatically should Marley be transferred back here due to his personality and his overpowering influence on younger detainees. 205 Mr Clee was not challenged in his cross-examination about matters (b), (c) and (d) and I accept that they were genuine concerns held by him at the time. 206 There was no documentary evidence of the decision of the Management Meeting concerning the applicant's request for transfer back to ASYDC. However, the decision must have been that the applicant would not be retransferred at that time. Either at that meeting, or shortly afterwards, a decision was made that the applicant would be returned to ASYDC over the Christmas period. 207 Mr Yaxley said that he did not have any particular recollection of receiving the applicant's letter of 11 November 2011 but agreed that he had been aware from his discussions with the applicant that he was missing his family and wished to return to Alice Springs. He also said, and I accept, that he had considered that consistent good behaviour would be a condition for the applicant's return to Alice Springs and agreed that he had conveyed that to the applicant. Mr Yaxley said in addition, and I accept, that there had been times when he had commended the applicant on his progress and behaviour. 208 Mr Donald deposed that the applicant's family had been strongly in favour of him returning to Alice Springs, and that, while he had assisted the applicant to write the letter of 11 November 2011, he had not been a decision-maker in relation to the request. 209 Although the evidence did not indicate this expressly, I infer that the agreement that the applicant be transferred temporarily to Alice Springs over Christmas 2011 may have been in the nature of a compromise. Arrangements were made for the applicant to fly to Alice Springs on 23 December 2011 and to return to Don Dale on 3 January 2012. 210 The applicant said, and I accept, that he did not get a written response to his letter of 11 November 2011. He could not remember receiving a verbal response. Mr Yaxley said that he had not told the applicant that he would not be retransferred, and had not instructed anyone else to do so. However, he had expected a case worker to pass on that kind of information. 211 The evidence did not indicate when the applicant was told of the decision to transfer him to ASYDC for Christmas. I infer, however, that the applicant was so informed within a few days of 14 November 2011. The applicant claimed that he was not told how long he would be staying in ASYDC. I regard that evidence as improbable and do not accept it. I consider that the applicant must have realised that a long term transfer back to Alice Springs was not in prospect. I draw that inference because Mr Donald had a discussion with the applicant's grandmother, Ms Palmer, on 18 November 2011 and made the following record: Christine agreed that it would be good for Marley to stay in Don Dale but return to Alice for Christmas. She also agreed that she would encourage him to get a blue shirt, by behaving well. [I] was also told that she had a fair bit of family travelling up to Darwin so they would come and visit him. 212 It will be recalled that blue shirts were given to Low 2 classification detainees. As at 18 November 2011, the applicant was Low 1 (green shirt). 213 In her evidence, Ms Palmer did not acknowledge this conversation or its contents but I am satisfied that it occurred. Although Mr Donald was challenged in his cross-examination about the accuracy of his note, I am also satisfied that he recorded accurately what had been conveyed to him by Ms Palmer. It supports the inference that it was known by 18 November 2011 that, apart from the planned Christmas visit, the applicant would not be returning to ASYDC. If these matters were known to Ms Palmer, they are likely also to have been known by the applicant. 214 In any event, I am satisfied that, despite the applicant's denial, he signed an acknowledgement on 29 November 2011 that he had been assessed as suitable for transfer to ASYDC for Christmas and confirmed that he understood that "if I am transferred I will return to Don Dale in approx. 2 weeks".
The cancellation of the Christmas transfer to ASYDC 215 On 21 December 2011, the applicant assaulted another detainee by punching him in the face. That assault had a number of consequences. One was that Mr Yaxley cancelled the applicant's transfer back to Alice Springs for Christmas. The applicant acknowledged that he had been told shortly after the assault that his planned trip to Alice Springs for Christmas would be cancelled and, further, that he had understood at the time that, if he did not improve his behaviour he would not be authorised to go back to Alice Springs. The applicant said he had been angry on being informed that his trip to ASYDC had been cancelled.
Duty of care: the applicant's pleaded case 216 In [12] and [12A] of the 6SC, the applicant pleaded that the Territory and the Superintendent each owed him a duty of care to exercise the powers under the YJ Act and the Regulations "in a reasonable manner so as to avoid the applicant suffering from foreseeable harm". In [13] and [13A], the applicant pleaded that each of these duties of care was non-delegable. 217 In relation to the detention of the applicant at Don Dale, the applicant pleaded that the respective duties of care required the Territory and the Superintendent to consider: a. the reasons why the applicant had been transferred to Don Dale; b. the requests of the applicant to be returned to ASYJC; c. whether imposing conditions on the return of the applicant to ASYJC was i. appropriate; and ii. authorised by the objects and provisions of the Act and Regulations, including those provisions referred to in paragraphs 9, 10 and 11; d. whether the provisions of the Act and Regulations could be met by continuing to detain the applicant at Don Dale against his wishes; e. whether the applicant may suffer harm from the continuation of his detention at Don Dale in the circumstances pleaded; and f. transferring the applicant back to ASYJC. 218 As is apparent, this plea of the scope of the duty was that the Territory and the Respondent were required by their respective duties of care "to consider" each of the specified matters. However, later pleas indicate that the applicant's claim was directed to the failure to transfer him back to ASYDC from Don Dale, and not to a failure to consider those matters. This plea is evident in [33]-[35A] of the 6SC. [33] In the circumstances, the first respondent was aware, or ought to have been aware, that: a. having told the applicant if he volunteered and agreed to be transferred from ASYJC to Don Dale for two to four weeks as a result of overcrowding at ASYJC; b. having unreasonably failed to transfer the applicant back to ASYJC when a place became available for him at ASYJC; c. having treated the applicant on the basis he had been transferred for behavioural reasons when the applicant's transfer was for the purpose of the first respondent's own accommodation requirements; d. unreasonably imposing discipline upon the applicant by maintaining the detention of the applicant at Don Dale on grounds not advised to the applicant until he had moved there, and without ensuring that his right to be heard in relation to that discipline; and e. having unreasonably separated the applicant from his family, community and Country, would give rise to a foreseeable risk of harm to the applicant. 219 Paragraph [33A] replicates substantially [33] in the 6SC but in relation to the Superintendent. 220 The 6SC then continues: [34] In the circumstances, a reasonable person in the position of the first respondent and the second respondent, would have transferred the applicant from Don Dale to ASYJC by mid-November 2011. [35] The first respondent's failure to transfer the applicant back to ASYJC from Don Dale by mid-November 2011 breached the Duty of Care. [35A] The second respondent's failure to transfer the applicant back to ASYJC from Don Dale by mid-November 2011 breached the Second Respondent's Duty of Care. 221 The applicant's pleading of his alternative case is contained in [36] of the 6SC to which I will return later. 222 The applicant's pleading of the harm said to have been caused by the respective breaches of the duty of care is contained in [37] of the 6SC: [37] The breach of Duty of Care and the Second Respondent's Duty of Care referred to in paragraphs 35 and 36 resulted in the applicant suffering foreseeable harm, being: a. the false imprisonment of the applicant; and b. mental harm. Particulars The ongoing detention of the applicant at Don Dale constituting breach of the Duty of Care and the Second Respondent's Duty of Care: i. was for a purpose, being the infliction of unlawful and inappropriate discipline upon the applicant, which was inconsistent with a reasonable exercise of powers under the Act and the Regulations; ii. was undertaken and maintained in the knowledge that it deprived the applicant of his rights, including his right to contact with his family, culture and Country; iii. inflicted punishment upon the applicant which was unfair, known by the applicant to be unfair, was contrary to the aim of developing the applicant's sense of social responsibility and hampered his development in beneficial and socially acceptable ways in breach of section 4(n) of the Act; and iv. resulted in the applicant being detained at a place which was not authorised by the scheme of youth detention established by the Act and the Regulations. 223 In effect, the applicant claimed that the breaches of duty of care resulted in his "false imprisonment" by reason of him having been "detained at a place which was not authorised by the scheme of youth detention established by the Act and the Regulations" - see Particular (iv) in [37]. In addition, the applicant pleaded an unparticularised form of "mental harm". 224 Although the applicant alleged that the place at which he had been detained was not authorised by the YJ Act, he did not plead any breach of statutory duty. As I understood it, the applicant's case was that the pleaded unauthorised detention at Don Dale informed the breach of the duty he alleged: cf Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424.
The claim advanced at trial 225 The claim ultimately made on the applicant's behalf with respect to his detention at Don Dale until Christmas 2011 was more confined and reflected in part the articulation of the applicant's claim in [37] of the 6SC. Counsel submitted in [126] of the written submissions: [126] The First Respondent's records confirm that the Applicant continued to be detained in Darwin for ill-defined disciplinary purposes. That detention was in breach of the YJ Act. The records show that officers in the employment of the First Respondent (including the Second Respondent) were aware of the Applicant's strong family ties in Alice Springs. The maintenance of the detention of the Applicant in Darwin lacked lawful authority and breached both the Duty of Care and the Second Respondent's duty of care, resulting in an unlawful detention. That is because the mode of detention imposed on the Applicant by the Second Respondent involved the removal from his family in Alice Springs for disciplinary reasons with restitution of that relationship being a reward. That constituted a breach of his duty of care resulting in an unlawful detention and, according to Dr Wojnarowska, contributed to an exacerbation of his diagnosed conduct disorder. (Emphasis added and citations omitted) 226 Counsel confirmed this submission in the oral submissions: Now, at paragraph 126, your Honour, we address what we say is the nub of the issue in relation to the maintenance of the applicant's detention at Don Dale and, that is, the assertion of authority to maintenance his detention at Don Dale for what we describe as ill-defined disciplinary purposes. We make no bones about it. We say that that detention was a breach of the Youth Justice Act for this reason: it's not possible to reconcile that decision either as an exercise of discipline or in pursuit of any of the other objectives of principles which are laid out in the Act. (Emphasis added)
The form of loss alleged 227 The applicant's claim that the breach of duty of care had caused "mental harm" can be put to one side for the time being. His alternative claim that the breach caused his false imprisonment involved some curiosity. False imprisonment is a tort in its own right and, as will be seen, its existence does not depend on there having been a breach of a relevant duty of care. The applicant did not seek to make out the tort of false imprisonment independently of the tort of negligence in respect of the continuance of his detention at Don Dale. 228 Despite not alleging the tort of false imprisonment, counsel referred to the applicant's claim as one of "negligent false imprisonment". The decision in Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465 at 474 suggests that false imprisonment, being a form of trespass to the person, may be caused negligently, and if so, that it is not necessary for an applicant to prove actual harm. However, if the cause of action is negligence, an applicant must prove a breach of a relevant duty of care and damage: ibid. 229 In order to satisfy the element of damage in the present case, counsel submitted that loss of liberty can be a form of damage forming the basis for the tort of negligence. Counsel referred in this respect to Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352; (2016) 315 FLR 305 in which Mossop AsJ recognised, at [171]-[173], deprivation of liberty as being damage for the purpose of a cause of action in negligence. 230 However, this meant that the applicant set himself the task of proving a loss of liberty as a result of the breach of duty of care he alleged. Self-evidently, this was a difficult task. The applicant was held in detention by lawful authority. He had no liberty which could be lost, he had no entitlement, let alone liberty, to be held at ASYDC rather than at Don Dale, and he had no entitlement, let alone liberty, to be held in the place which he considered more congenial. His entitlement at best was to be held in detention in accordance with the law. 231 However, it is not necessary to discuss further the difficulties presented by this aspect of the applicant's articulation of his claim, because, as will be seen, I am not satisfied that the applicant has established a breach of the duty of care.
Duty of care: principles 232 The applicant's submissions concerning the duty of care owed to him by the respondents and the scope of that duty were brief. Counsel's written submissions were as follows: [122] The relationship of gaoler and inmate gives rise to an established duty of care to take reasonable care for prisoners. That recognised duty arises from the extent and degree of control over prisoners and their resultant vulnerability and reliance on exercise of that duty. The duty is properly cast upon the First Respondent but can also be found for the Second Respondent, given his assumption of responsibility to determine when and on what terms the Applicant would be released from his authority and allowed to return to Alice Springs. [123] The case for the imposition of a duty of care in respect of young detainees which has adequate scope and operation is compelling. The terms of the YJ Act inform the scope of the duty. (Footnotes omitted) 233 As is apparent, these submissions did not distinguish in substance between the duties said to be owed by the Territory and the Superintendent respectively. 234 In Howard v Jarvis [1958] HCA 19; (1958) 98 CLR 177 at 183 (the sole authority cited by counsel for the proposition in the first sentence in [122]), the High Court confirmed that a police officer who had, by arrest, deprived the person of his personal liberty and had assumed control of him was under a duty to exercise reasonable care for his safety during the detention. 235 As previously noted, the respondents contended that the YJ Act vests an independent statutory authority with respect to the management of a detention centre in the Superintendent with the consequence that the Territory could not have any liability with respect to the applicant's detention. For the reasons I give later, I reject that contention. I did not understand the respondents to dispute otherwise that they owed a non-delegable duty of care to exercise reasonable care for the health and safety of the applicant while he was held in detention. The authorities confirm the existence of such a duty: Howard v Jarvis at 183; Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36, (2004) 219 CLR 486 at [174]-[175] (Hayne J); R v Deputy Governor of Parkhurst Prison; ex parte Hague [1992] 1 AC 58 at 166; SBEG v Commonwealth [2012] FCAFC 189, (2012) 208 FCR 235 at [7], [19], [69]. The duty did not require the respondents to ensure the health and safety of the applicant, only to exercise reasonable care to that end. As was noted in SBEG at [19], a matter bearing on the question of breach of duty is the need of the Superintendent to ensure effective detention in accordance with the law. 236 In this respect, the statement of Gleeson CJ in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 at [5], in relation to the duty of care of statutory authorities is pertinent: Acceptance that a statutory authority, in the discharge of its functions, owed a duty of care to a person, or class of persons, is only the first step in an evaluation of the authority's conduct for the purpose of determining tortious liability. In some cases, the difficulty of formulating the practical content of a duty to take reasonable steps to avoid foreseeable risks of harm, for the purpose of measuring the performance of an authority against such a duty, may be a reason for denying the duty. In other cases, of which the present is an example, recognition of the existence of a duty is consistent with the need, when dealing with the question of breach, to take account of complex considerations, perhaps including matters of policy, resources, and industrial relations. (Emphasis added) 237 Likewise, McHugh J noted at [114] that the duty of care imposed on a statutory authority should not be inconsistent with the statutory scheme. 238 During the trial, counsel for the applicant referred to Caledonian Collieries Ltd v Speirs [1957] HCA 14; (1957) 97 CLR 202 in which Dixon CJ, McTiernan, Kitto and Taylor JJ referred to "the well-settled principle … that when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered". This principle was referred to in Sutherland Shire Council v Heyman [1985] HCA 41, (1985) 157 CLR 424 at 458 (Mason J) and in Crimmins v Stevedoring Industry Finance Committee at [62]. However, I do not see it as adding to the duty of care, or its scope, in the present case.
The duty of care and the "parens patriae responsibility" 239 Counsel for the applicant submitted that the scope of the duty of care of the respondents was informed by: (a) the provisions of the YJ Act, including s 4; (b) the special nature of youth detention; and (c) the parens patriae responsibility assumed by the Respondents when removing the Applicant away from his family. 240 Subparagraphs (a) and (b) are uncontroversial. In relation to subpara (c), an initial matter is that, contrary to the premise upon which the submission was based, the respondents had not removed the applicant from his family. The applicant's detention occurred by reason of the sentence imposed by Martin CJ in the Supreme Court of the Northern Territory on 23 August 2011. The Warrant of Commitment issued by Martin CJ required the applicant to be taken into, and kept, in detention. That being so, the custodianship of the applicant by the respondents in compliance with the order of the Supreme Court was involuntary. Nevertheless, the respondents and in particular, the Superintendent, did have statutory responsibility for the physical, psychological and emotional welfare of the applicant whilst he was held in detention - see s 151 of the YJ Act. 241 Although referring to the parens patriae responsibility, counsel made only a brief submission concerning it: [W]e say it would inform the nature and quality of the duty of care owed by the [Superintendent] because at that stage he's isolated from his family. And let's say that shortly after arriving at Don Dale the applicant manifested a deterioration in the conduct of the sort identified by Dr Wojnarowska. We would say that it was incumbent of the Superintendent, irrespective of the provisions of the Act, to seek medical treatment and, if necessary, the intervention of the Courts in its protective jurisdiction. 242 Counsel did not refer to the Court to any authorities concerning the "parens patriae responsibility", its interaction with a statutory regime for detention like that contained in the YJ Act, or its interaction with the law of negligence. Nor did the submissions concerning the "parens patriae responsibility" engage with the applicant's circumstances. Insofar as the submission was directed to the obtaining of medical treatment, the only complaint which the applicant makes concerning a lack of medical treatment is the alleged failure of the respondents to provide treatment with respect to his "visual disability". I will address that claim later in these reasons. Counsel also could not explain how, or in what circumstances, the respondents could (or should) have sought "the intervention of the Courts in [their] protective jurisdiction", as he had submitted. 243 In my view, the statutory regime contained in the YJ Act and, in particular, the statutory responsibility imposed on the Superintendent by s 151 of the YJ Act, is a surer guide to the scope of the duty of care owed by the respondents. I accept, however, that the parens patriae jurisdiction of the Courts is one manifestation of the value placed by the law on the protection of the young from serious harm: Secretary, Department of Health and Community Services v JWB & SMB [1992] HCA 15, (1992) 175 CLR 218 at 258-9 (Marion's Case); Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33, (2003) 214 CLR 269 at [89] (Gummow and Kirby JJ). The jurisdiction derives from the direct responsibility of the Crown for those who cannot look after themselves: Marion's Case at 259; Cattanach v Melchior [2003] HCA 38, (2003) 215 CLR 1 at [325] (Heydon J). 244 As is apparent from both the written and oral submissions, the claim ultimately made on the applicant's behalf was that his continued detention at Don Dale was not authorised by the YJ Act because it had been for "ill-defined disciplinary purposes". One of the difficulties in the case presented in these terms is that counsel did not articulate the disciplinary purpose or purposes alleged. In fact, the description of it as "ill-defined" seemed to be an acknowledgement that it was difficult to do so.
The legislative regime informing the scope of the duty of care 245 Counsel is correct in submitting that the duty of care and its scope is informed by the obligations imposed by, and under, the YJ Act. I have already referred to provisions in the YJ Act concerning the detention of detainees but note again that it makes the superintendent of a detention centre responsible, as far as practical, for the physical, psychological and emotional welfare of detainees (s 151(2)), and imposes obligations on a superintendent to: promote programs to assist and organise activities of detainees to enhance their well-being (s 151(3)(a)); encourage the social development and improvement of the welfare of detainees (s 151(3)(b)); and supervise the health of detainees, including the provision of medical treatment (s 151(3)(e). 246 However, the superintendent must also maintain order in the detention centre, ensure the safe custody of all persons within it (s 151(3)(c)) and maintain efficient conduct of the detention centre (s 151(3)(d)). 247 The discharge by superintendents of their duties should take account of the objects and principles stated in the YJ Act. Relevantly, s 3(e) states that one of the objects of the YJ Act is "to ensure that a youth who has committed an offence is given appropriate treatment, punishment and rehabilitation". 248 Section 4 of the YJ Act contains a statement of general principles which must be taken into account in the administration of the Act. Those principles are (relevantly): (a) if a youth commits an offence, he or she must be held accountable and encouraged to accept responsibility for the behaviour; (b) the youth should be dealt with in a way that acknowledges his or her needs and will provide him or her with the opportunity to develop in socially responsible ways; (c) a youth should only be kept in custody for an offence (whether on arrest, in remand or under sentence) as a last resort and for the shortest appropriate period of time; … (f) a youth who commits an offence should be dealt with in a way that allows him or her to be re-integrated into the community; (g) a balanced approach must be taken between the needs of the youth, the rights of any victim of the youth's offence and the interests of the community; (h) family relationships between a youth and members of his or her family should, where appropriate, be preserved and strengthened; (i) a youth should not be withdrawn unnecessarily from his or her family environment and there should be no unnecessary interruption of a youth's education or employment; (j) a youth's sense of racial, ethnic or cultural identity should be acknowledged and he or she should have the opportunity to maintain it; … (n) punishment of a youth must be designed to give him or her an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways; (o) if practicable, an Aboriginal youth should be dealt with in a way that involves the youth's community; (p) programs and services established under this Act for youth should - (i) be culturally appropriate; and (ii) promote their health and self-respect; and (iii) foster their sense of responsibility; and (iv) encourage attitudes and the development of skills that will help them to develop their potential as members of society; … 249 It is necessary to keep in mind that the s 4 Principles are to be taken into account in the administration of the YJ Act generally: they are not specific to detention centres. In fact, Principle 4(c) indicates that detention is a last resort, ie, when after account has been taken of the other Principles, it is regarded as appropriate. The application of the Principles to youths in detention is controlled to an extent by the fact of their detention. By way of example, the extent of the provision to a youth of the opportunity to maintain his or her sense of racial, ethnic or cultural identity will be less in the case of a detained youth than in the case of one for whom less severe sanctions are imposed. 250 The Regulations also impose relevant duties on the superintendent. By reg 69, the superintendent must maintain a comprehensive case management system to assess each detainee's needs in relation to education, vocational training and rehabilitation and ensure an appropriate program of productive activities addressing the identified needs of each detainee is available to that detainee. In relation to the management of misbehaviour, reg 70 provides: (1) A member of staff must manage incidents of misbehaviour in the manner the member considers most appropriate, having regard to all the circumstances, including the interests of the detainee or detainees involved in the rules of the detention centre. (2) In the discipline or control of behaviour of detainees, a practice that is prohibited by the rules of the detention centre must not be used. 251 Regulations 64 and 65 provide: 64 Responsibilities of members of staff (1) Members of staff must exercise understanding, restraint and patience in the care, control and supervision of detainees and in the maintenance of discipline amongst detainees. (2) Members of staff must encourage positive behaviour among detainees that is consistent with increasing the responsibility and independence of detainees. 65 Detainee to follow instructions and rules (1) A detainee must: (a) follow all lawful instructions given to the detainee by the Superintendent or a member of staff; and (b) obey the rules of the detention centre; and (c) comply with all written instructions addressed generally to detainees. (2) A detainee aggrieved by an instruction must comply with the instruction to the extent practicable, but may later make a complaint in relation to the instruction. 252 As is apparent, some of these objects and principles may point in different directions. So much is acknowledged by Principle 4(g). Superintendents must therefore exercise some judgment and discretion in the exercise of the responsibilities imposed on them by the YJ Act. The best interests of the individual detainee are obviously an important matter but they are not the sole consideration. As indicated earlier, this means that, in assessing whether there has been a breach of the duty of care, account must be taken of the overall responsibilities of Mr Yaxley as Superintendent with respect to the efficient conduct of ASYDC and Don Dale (s 153(3)(d)) as well as of considerations personal to the applicant. 253 Counsel for the applicant also cross-examined some of the respondents' witnesses by reference to the manual entitled "Youth Detention and Remand Centres Procedures and Instructions" (the YDRC Manual). Counsel also referred to the YDRC Manual in support of the applicant's RD Act claims. Although counsel did not refer specifically to the YDRC Manual in relation to the negligence claims, it is appropriate to have regard to it in the present context. 254 The YDRC Manual was developed during 2010-2011 at the instigation of Mr Fattore. It is a comprehensive document extending over 239 pages and addressing multiple aspects of the management and conduct of detention centres. A copy is issued to all staff. The YDRC Manual identifies the YJ Act as its legislative base. 255 Counsel drew attention to a number of provisions in the YDRC Manual. Those which are relevant presently include section 1.6 which, under the heading "Don Dale Centre Principles of Practice", sets out 14 principles. Counsel referred specifically to: PRINCIPLE FOUR: We treat staff, young people in our care and all visitors to the centre with courtesy, professionalism, dignity and respect while valuing diversity. … PRINCIPLE EIGHT: Behaviour management focuses on strategies that reinforce appropriate behaviour and provides consistent, fair consequences for inappropriate behaviour. PRINCIPLE NINE: We provide an environment that respects individual rights to privacy, sexuality, confidentiality, religion and culture. We acknowledge that an individual's privacy may be effected on occasion in the best interest of safety and security within the framework of our Centre's policies and legislative responsibilities. PRINCIPLE TEN: We will provide clear and accessible avenues for complaint and grievance resolution, whilst offering advocacy and access to legal advice. ... 256 Section 3.1, under the heading "Duty of Care", includes the following: ... It is a well established principle of law that a duty of care is owed to detainees by those who have custody of them. The duty of care owed to detainees is greater than that owed to the general public as a result of their custody status. That is, because detainees are unable to make decisions for themselves or control their own environment, Youth workers have an additional responsibility to ensure [a] detainee's safety and protection. … 257 The YDRC Manual did not contain any provisions concerning transfer of detainees from one detention centre to another.
Findings concerning the detention at Don Dale from mid-November to Christmas 2011 258 The applicant also alleges that the refusal to return him to ASYDC constituted forms of discrimination in contravention of s 9(1) and (1A) of the RD Act and I am conscious that, in keeping with the manner in which the claims were presented at trial, these claims will be considered separately. To an extent, there was some inconsistency in the submissions concerning these separate claims. I have endeavoured to keep in mind, however, before making the present findings, that they are also pertinent to the resolution of the RD Act claims. 259 I am satisfied that a decision must have been made at, or shortly after, the management meeting on 14 November 2011 that the applicant would not be transferred back to ASYDC for his ongoing detention. Instead, the Christmas visit was decided upon as a compromise. This was not a decision that the applicant should never be returned to ASYDC for his ongoing detention: only a decision that, for the time being, he should remain at Don Dale. 260 I am satisfied that Mr Yaxley, as the Superintendent of Don Dale from 28 October 2011, was the principal decision-maker in relation to the retransfer sought by the applicant. He had little recollection of his decision-making in relation to the request for retransfer but the evidence supports the view that he had taken into account the views of others. These included the view of Mr Clee in his email of 13 November 2011 (Mr Clee was not a participant in the meeting on 14 November 2011) and the view which Ms Blakemore, a Case Worker communicated in her email on the morning of 14 November 2011 that the applicant's behaviour at Don Dale had been good and that she was happy to keep him there. Mr Yaxley also thought that he had sought Mr Middlebrook's views about the transfer. I consider that unlikely, given that Mr Middlebrook was not generally involved in day to day operational decisions at Don Dale. 261 The claim that the applicant was until 21 December 2011 detained at Don Dale for "an ill-defined disciplinary purpose" and therefore without authorisation under the YJ Act requires consideration of three issues: the factual issue of why the applicant was kept at Don Dale; whether that was a "disciplinary purpose"; and whether, if it was, that made the continued detention at Don Dale unlawful.
Why was the applicant kept at Don Dale? 262 Mr Yaxley deposed that it was his practice as Superintendent to consider a number of matters when deciding whether to transfer a detainee from one detention centre to another. These matters included: (a) the detainee's offending history and any offences they were charged with; (b) the risks posed by the detainee including risk of harm to others or escape; (c) the length of a detainee's sentence, if sentenced or if facing charges, their next court dates and where they are required to attend court; (d) whether or not there were other detainees likely to be a positive or negative influence, or on whom the detainee was likely to be a positive or negative influence; (e) the wishes of the detainee; and (f) the capacity for the detainee to stay in contact with family. 263 These matters seem common sense and it is understandable that Mr Yaxley was not challenged about this paragraph in his affidavit. 264 Somewhat curiously, Mr Yaxley was not asked in examination in chief or in cross-examination to state his reasons for keeping the applicant at Don Dale in the period after mid-November 2011. He did say that his attitude had been that the applicant would have to have "consistent good behaviour" before he could be transferred back to ASYDC and that that would be sufficient by itself to warrant the transfer, but could not say that he had told the applicant those things. In saying that "consistent good behaviour" would be sufficient for retransfer, I understood Mr Yaxley to be referring to matters personal to the applicant and not to matters such as operational circumstances and the capacity of ASYDC. 265 There is no reason to suppose that Mr Yaxley did not have regard to the matters considered in his usual practice when considering the applicant's request for retransfer to ASYDC. Putting to one side the RD Act claims, counsel for the applicant did not point to any reason for Mr Yaxley, in November 2011, to have applied a different approach in the applicant's case. Some of them pointed in favour of a retransfer, and others against. 266 I consider it likely, and so find, that Mr Yaxley determined that the applicant should be kept at Don Dale (with provision for a Christmas return to ASYDC) because of the applicant's recent poor behaviour at ASYDC with the implications that had for his management and the maintenance of order in the detention centres, the matters to which Mr Clee referred in his email of 13 November 2011 and in particular the operational considerations for ASYDC if the applicant was transferred, the matters to which Ms Blakemore referred in her email of 14 November 2011, issues concerning the capacity at ASYDC and the additional facilities and services available at Don Dale which made it preferable for his detention to continue there. In short, I am satisfied that the decision was made for genuine, and reasonable, operational reasons. I am also satisfied that the applicant's wish to be closer to his family was not overlooked; after all this was the very matter which had led to the applicant's request. Account was taken of it in the provision for the return to ASYDC over Christmas. 267 I think it probable that Mr Yaxley did make his decision in the belief that the applicant had not been given any understanding as to the likely length of his detention at Don Dale. In that belief Mr Yaxley was wrong. But his mistaken belief was understandable and "innocent".
Did Mr Yaxley have a "disciplinary" purpose? 268 Counsel's description of the purpose as an "ill-defined" disciplinary purpose makes it difficult to come to grips with this element of the submissions. At times, there seemed to be a suggestion that the "ill-defined disciplinary purpose" had been untoward, or not contemplated by the YJ Act. At other times, there seemed to be a suggestion that Mr Yaxley had made the decision for the purpose of imposing a sanction or punishment on the applicant. The applicant's submissions did not articulate these suggestions or the basis for them. 269 Counsel noted that, on 26 March 2012, when Mr Yaxley had sought Mr Brown's approval for the applicant's temporary transfer to ASYDC in April 2012, he had said, amongst other things, that the applicant seeing his grandmother for her birthday and having regular family contact during the visit "would be a positive move to assist his re-integration and reward him for his mature and hard working approach". Counsel's submission emphasised the reference to "reward". The submission seemed to be that, by not providing the "reward" in November and December 2011, Mr Yaxley had imposed a sanction, and that this evidenced a disciplinary purpose. 270 There is of course a sense in which the provision of a benefit or reward for good behaviour, and the withdrawal or non-provision of the benefit in the event of poor behaviour, is disciplinary. However, in the detention centre context, it is not unreasonable for a superintendent to provide rewards. In this respect, I refer to the evidence of Mr Donald: [10] Detainees with a lower security classification were afforded greater privileges within the detention centre as an incentive to good behaviour in detention. Those with open security were able to leave the detention centre to participate in external work programs, external rehabilitative programs like horse riding (Don Dale only), and sometimes even just to go with a Case Manager to a shopping centre or another public place to work towards their community reintegration. [11] In my experience, the classification system worked very well to reinforce and reward positive behaviours in the detention centre. When I was talking to detainee's about their behaviour I would say things like: "Now this is what you have to do to get to a blue shirt ..." Generally, I found that the detainees responded positively to that since it gave them specific goals to work towards with their behaviour. 271 Mr Yaxley gave evidence to similar effect: [35] A detainee's classification had consequences for the privileges available to them and the restrictions of their behaviour in detention. Those detainees who had achieved a lower classification were given greater freedom and more rewards. The purpose of this scheme was to incentivise good behaviour in detention. 272 This evidence accords with common sense, and I accept it. The provision of such incentives can be seen as consistent with the YJ Act Principles 4(a), (e), (g), (m) and (n). 273 An intrinsic part of a system of incentives for good behaviour is the withdrawal of the promised benefit when the standard of required behaviour is not met or maintained. The incentive ceases to be an incentive if the promised benefit is still provided when it has not been earned. 274 By this form of "discipline" in the detention centre context, the consequences of poor behaviour and poor decisions are brought home to detainees. Given the express preference of the applicant, at least before December 2011, to be returned to ASYDC, it made common sense for his continued good behaviour to be made a condition of that return. It is accordingly appropriate to regard the holding out to the applicant of "consistent good behaviour" as a requirement for return to ASYDC as the provision of an incentive, and the cancellation of the trip on 21 December 2011 as the imposition of a sanction for his failure to maintain good behaviour and in this general sense as being "disciplinary". 275 However, the evidence does not support a conclusion that the applicant was kept at Don Dale (rather than ASYDC) from 14 November until December 2011 as a punitive measure, whether wholly or in part. Mr Yaxley's willingness to transfer the applicant to ASYDC over Christmas so that he could be closer to his family at that time is inconsistent with such a view. It may be inferred that the sentence of detention imposed on the applicant by the Supreme Court on 23 August 2011 had, amongst other things, had punitive elements but there was no indication that the selection of his place of detention before 21 December 2011 had been for some additional punitive purpose. 276 The reasons of Mr Yaxley identified above cannot reasonably be regarded as supporting a "disciplinary" purpose for the applicant's continued detention at Don Dale in the period 14 November to 21 December 2011, other than in the general sense outlined above. Mr Yaxley's reasons seem instead to have been directed to the maintenance of good order at ASYDC and Don Dale and to have been based on considerations of an unexceptional kind about the placement of one of the several detainees for whom he had responsibility. Mr Yaxley was entitled to impose reasonable measures to promote long term good behaviour by the applicant, including by providing incentives if the applicant maintained a standard of appropriate behaviour. The withdrawal of the incentive, which may be seen to be disciplinary, is an ordinary incident of this form of "discipline".
Was keeping the applicant at Don Dale unlawful? 277 Even if the matters on which Mr Yaxley relied are characterised as "disciplinary", the submissions of the applicant's counsel did not indicate how the continued detention of the applicant at Don Dale was unauthorised. The YJ Act does not preclude superintendents from taking action for "disciplinary purposes". To the contrary, s 153(1) imposes positive obligations on superintendents to maintain discipline at detention centres, albeit limiting the forms of the action which they may take for that purpose. Keeping the applicant at Don Dale could hardly be characterised as a proscribed form of discipline. 278 It was put to some of the respondents' witnesses that the decision to keep the applicant at Don Dale was arbitrary, in the sense of capricious. In the final submissions, counsel characterised the decision as "arbitrary" and submitted that no consideration had been given to the applicant's connections to his family or his country. Counsel also submitted that Mr Yaxley's requirement that the applicant have a Low 1 classification before being transferred was "arbitrary". Counsel noted that ASYDC was able to accommodate detainees with a Medium classification (that had been the applicant's classification before his transfer to Don Dale); the condition had not been communicated to the applicant before the transfer to Don Dale and indeed had been imposed only after the applicant arrived at Don Dale; and, as will be seen, the applicant's classification of Medium at the time of his transfer back to ASYDC on 9 July 2012 had not precluded that transfer. Counsel also submitted that, at the time of the applicant's temporary transfer in April 2012, he had had a Medium classification. That is not so as the applicant's classification at that time was Low 1. 279 The matters to which I referred earlier indicate that a characterisation of Mr Yaxley's decision as arbitrary would not be appropriate. The reasons for the decision, on my findings, were both plausible and rational. It made sense to keep the applicant at Don Dale and to give him an incentive to behave appropriately. The very fact that the Christmas return was approved indicates that consideration was given to the family relationships. As to the connection to country, this was not a matter which featured at all in counsel's cross-examination of Mr Yaxley. 280 I also note that in the closing submissions concerning the RD Act claim, counsel for the applicant withdrew reliance on the following paragraph in the written submissions concerning the omission to return the applicant to ASYDC: [83] At no time did [the Territory] take into account the consideration of the Applicant's family connections, his Aboriginality or his country. 281 For these reasons, I reject the applicant's claim insofar as it was based on the "ill-defined disciplinary purpose".
Was the duty of care breached? 282 The question of whether the Territory or Mr Yaxley breached the duty of care owed to the applicant is to be determined objectively, and not by reference to Mr Yaxley's subjective purpose. The approach stated by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48 remains influential. His Honour said: In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. See also State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 at [7] (Gleeson CJ) and at [78] (Gummow and Hayne JJ). 283 Little attention was given in the evidence and submissions at trial to the question of whether a reasonable foreseeable consequence of keeping a detainee in the applicant's circumstances at one detention centre rather than another was the suffering of a psychiatric injury. There was no suggestion that, before 2011, this had been the experience with other detainees. Nor was there evidence of this having occurred in other jurisdictions. Neither Mr Ralph nor Dr Wojnarowska gave any evidence confirmatory of the reasonable foreseeability of the risk arising from a detainee being kept in one detention centre rather than another. I will return to the evidence of Dr Wojnarowska to which counsel referred in the submission extracted above, but note now that the circumstances on which Dr Wojnarowska was asked to opine extended beyond the matters presently under consideration and involved assumptions not established by the evidence. There was nothing in the YJ Act, the Regulations or in the Policy Determinations to put Mr Yaxley on notice that such a risk might exist. 284 Nevertheless, I am willing to assume, for the sake of the analysis, that Mr Yaxley should reasonably have foreseen that a consequence of the decision to maintain the applicant at Don Dale on an ongoing basis could be that the applicant would develop a psychiatric illness. 285 A reasonable person in Mr Yaxley's position would have had to balance a number of considerations in relation to the possible transfer of the applicant back to ASYDC. On one side, these included the foreseeable risk of injury which I have assumed, the applicant's reports of home sickness, his request to be transferred back to ASYDC, and the greater proximity to his family that the transfer would give him. The 1,500 km distance of Darwin from Alice Springs meant that the detention of the applicant at Don Dale had a dimension of separation from family which was over and above that which was a necessary incident of the applicant being detained under the YJ Act. Quite apart from the statutory recognition in s 4(h) and (j), Mr Donald testified (and I accept) that the maintenance of family contact was "very important". 286 On the other hand, there were numerous matters indicating that, taking into account a superintendent's overall responsibilities, a reasonable superintendent could (and probably would) have concluded that it was appropriate for the applicant to be retained in Don Dale. Many of these were the same factors that had led to the applicant's transfer to Don Dale in the first place. On the evidence, matters which made it objectively reasonable for Mr Yaxley to keep the applicant detained at Don Dale included: (a) ASYDC continued to operate at, or close to, its capacity. In the period from 11 to 30 November 2011, the daily average occupancy of ASYDC was 13.2 detainees and, for nine of those days, the detainees included a female for whom separate sleeping arrangements had to be made, thereby limiting the options for male detainees. With the exception of one day in that period when the occupancy was 11, the number of detainees at ASYDC exceeded its optimum capacity to which I referred earlier. This was especially so between 28 and 30 November 2011 when there were 15 detainees, including one female. In the period from 1 to 23 December 2011, the average occupancy at ASYDC was 16.1 detainees - this average is calculated without reference to the occupancy on 3, 4, 10, 11, 17 and 18 December for which the evidence did not disclose the figures. On five of the days in December, the detainees at ASYDC included one female; (b) experience indicated that there could be marked and sudden fluctuations in the levels of occupancy at ASYDC. This meant that there was a real prospect of the overcrowding experienced on 14 October 2011 occurring again and at short notice. I note in this respect that there were 19 detainees at ASYDC on 9, 12, 13 and 14 December 2011 and 18 on 7, 8 and 15 December 2011; (c) the applicant was not on remand but was serving a significant sentence. He did not have future court dates in Alice Springs. Moreover, as consideration of his parole had been deferred, there was no prospect of him being released from detention in the near future; (d) ASYDC was less suitable for long term detainees such as the applicant. It was smaller, less secure (the chained security fence was easily climbable) and was able to provide detainees with fewer rehabilitative, vocational and recreational activities. Whereas ASYDC had one case worker, Don Dale had three. The advantages of Don Dale for long term detainees made it common for detainees transferred to it to remain there until their release. I accept Mr Fattore's evidence about these matters. Mr Yaxley said, and I accept, that most of the detainees who transferred from ASYDC considered it better to be at Don Dale because of its facilities. I also accept Mr Donald's evidence that he had been encouraging the applicant to stay at Don Dale because the programs available to him there gave him a better chance of obtaining parole before he turned 18 and thereby avoiding transfer to an adult prison as required by s 164 of the YJ Act; (e) the applicant's reviews, in particular those in November 2011, indicated that he was progressing well at Don Dale. The SCATE assessment for 2 November 2011 included the recommendation that he be given a security classification of Low 1 because: Marley's behaviour has been excellent since his transfer to Don Dale. Marley has been compliant and he has not received any case notes the past 2 weeks. However, it is to be remembered that it was as recently as 19 September 2011 that the applicant had been made subject to an IMP and as recently as 10 October 2011 that he had assaulted a YJO. Moreover, from 6 December 2011, the applicant's security classification returned to Medium, and remained at that level for the rest of December. Counsel for the applicant submitted that this increased security classification was attributable to the applicant's disappointment and anger at learning that he would not be transferred back to ASYDC. That is a possibility but the evidence is not such as to permit the Court to make a finding to that effect; (f) on the evidence, the foreseeable risk of the applicant developing a psychiatric illness was slim, and its occurrence improbable. The circumstance that the applicant and his family would have found it more congenial for him to be detained at ASYDC did not, of itself, bear on the assessment of the foreseeability of the risk of injury; and (g) the keeping of the applicant at Don Dale could be seen as providing him with an incentive to maintain good behaviour. 287 The matters just mentioned indicate that there were both operational considerations, and considerations personal to the applicant which made it appropriate for him to be kept at Don Dale. 288 In these circumstances, the Court could not conclude that it was unreasonable and so in breach of the duty of care for Mr Yaxley to have decided in November and December 2011 to keep the applicant at Don Dale rather than transferring him back to ASYDC on an ongoing basis. That being so, the applicant has not established a breach of the duty of care owed to him. It is understandable that the applicant may have had a sense of grievance, given the indication to him on 14 October 2011 that his transfer to Don Dale would be short term but the fact that his expectation of a return to ASYDC was not realised does not indicate a breach of the duty of care owed to him.
Conclusion on claims of negligence in keeping the applicant at Don Dale until Christmas 2011 289 In short, I am not satisfied that the applicant has established a breach of the duty of care by the keeping of him at Don Dale from mid-November 2011 to 21 December 2011. This means that it is unnecessary to consider whether this gave rise to the form of "negligent false imprisonment" claimed by the applicant and also to any form of actionable "mental harm". 290 As indicated, I will consider the continued detention of the applicant at Don Dale from 21 December 2011 in a later section of these reasons, because that consideration must take account of the events which occurred on and after 21 December 2011.
The claim of false imprisonment: 26 December 2011 to 9 January 2012 291 The next claim in chronological sequence concerns the manner in which the applicant was detained at Don Dale and at DCC in the period between 26 December 2011 and 9 January 2012. The applicant pleads that, throughout this period he was held in isolation, that the periods in isolation were unauthorised, and that they constituted a form of false imprisonment which sounds in damages. He also alleges that his very transfer to DCC was unlawful. 292 The manner in which the applicant was detained between 26 December 2011 and 9 January 2012 had its origins in the "disturbance" which occurred at Don Dale in the early hours of 26 December 2011 in which the applicant had a prominent part. 293 Before coming to those events, it is appropriate to make findings about matters which occurred in the days preceding it.
Cancellation of the applicant's Christmas transfer to Alice Springs 294 As already noted, approval had been given for the applicant to return to ASYDC over Christmas 2011. Flights had been booked for the applicant to travel to Alice Springs on 23 December 2011 and to return to Don Dale on 3 January 2012. He was aware of those arrangements. On the afternoon of 21 December 2011, the applicant forcibly punched a 14 year old detainee on the jaw, causing him injuries. This was a serious incident and the police were called. 295 In consequence of the applicant's conduct, Mr Yaxley cancelled his transfer to ASYDC for Christmas and directed that he be placed in an isolation cell. That occurred with almost immediate effect. 296 The isolation cells were in the BMU and were referred to colloquially as the "back-cells", the "cells" or the "BMU". The BMU comprised five cells in a row on the south-western side of Don Dale, an enclosed exercise yard which also contained a shower, and a room described in the evidence as a "security lounge" (but marked on the plan of Don Dale as an "activity room"). The security lounge was not set up as a lounge. It was instead used as an additional bedroom in the BMU. Each of the five cells opened into the exercise yard. The security lounge also opened into the exercise yard but on the opposite side from the cells. The BMU was separate from the other accommodation in Don Dale. 297 Each cell in the BMU had concrete walls and was approximately 4 m x 3 m. The exercise area was approximately 15 m x 5 m. The applicant was placed in Cell 4. Each cell had its own toilet but not all had their own hand basin. A concrete slab provided the base for a mattress. Detainees were provided with a mattress, pillow, sheets and blanket. 298 It is evident that the cancellation of the Christmas transfer to Alice Springs caused the applicant to be resentful and angry. He attributed his behaviour in the early hours of 26 December 2011 to those feelings. 299 The applicant's placement in the BMU was initially for 24 hours but, on the afternoon of 22 December 2011, Mr Yaxley sought the approval of Mr Brown for the placement to be up to 72 hours. Mr Brown was acting in the position of Director at the time as Mr Middlebrook was on leave. The evidence as to whether Mr Brown gave that approval was circumstantial, but I infer that it was given. On that basis, the maximum period during which the applicant could have been isolated pursuant to s 153(5) expired late in the afternoon of 24 December 2011. The applicant said that he remained in the Cell for the following day, Christmas Day. The documentary evidence to which I will refer in the next section of these reasons explains, in part, that circumstance.
The applicant's threat of self-harm 300 At about 11.50 am on Saturday, 24 December 2011, the applicant complained about being hot and uncomfortable in his cell. This was an understandable complaint as, unlike some other areas at Don Dale, the BMU did not have air-conditioning. At 11.50 am, he told YJOs that he was unwell and wished to be moved to a cooler room. The YJOs explained that there was no other room available but set up fans in the BMU. 301 When the applicant was told that he would not be moved to an air-conditioned room, he said "well, I will kill myself then". He repeated that statement shortly afterwards. The applicant said (and I accept) that he made these statements "because I was angry and I was feeling sick at the time". The YJOs then placed the applicant "at risk" and informed Mr Yaxley and "On call Medical". The applicant said that this meant that he was put on "suicide watch". The records indicate that the applicant was kept under observation overnight, at 15 minute intervals. Ms Clancy, a YJO, recorded that she had told the applicant on 24 December that, if he was put "at risk", he would have to stay in the isolation cell. The implication was that he would otherwise be returned to his usual room. I think this explains in part why the applicant was kept in the BMU for longer than the 72 hours permitted by Mr Brown's authorisation. 302 A registered nurse attended the applicant at 9.52 am on Christmas Day. She made the following record of the attendance. [A]fter talking to [the applicant] I realised he had no history of self-harm and only made the comment 'I will kill myself then' when told that he would not go to an air-conditioned room after fighting. This I believe was just attention getting behaviour. I discussed this with Dr Kingston and he is to be taken off risk. 303 It was not suggested that this record was inaccurate or that the opinion formed by the nurse had been inappropriate. Effect was given to the nurse's recommendations and the applicant was recorded as ceasing to be "at risk" at 9.15 am on Christmas Day. It was not suggested that anything turned on the discrepancy between 9.15 am and the time when the nurse saw the applicant. It may be attributable to a simple recording error. 304 The applicant said that, after being taken "off risk", he was still kept in the cell in the BMU. He said that he spent most of Christmas Day in the cell, although he had been allowed out for breakfast for two hours and again at about 4 or 5 pm. He did not have any visitors on Christmas Day. The applicant said that there were no other detainees in the BMU on Christmas Day but the Shift Reports indicate that there was another. The Shift Reports also warrant the inference that at some time on Christmas Day, the applicant was transferred out of the BMU. This is because the Shift Report at 2.45 pm records that he had been moved from Cell 4 to Room 12 (which was not in the BMU). Further, the applicant is not recorded in the 9.30 pm Shift Report as being in the Cells. I infer therefore that, despite the applicant's evidence, he ceased being accommodated in the BMU at some time before 2.45 pm on Christmas Day.
The disturbance in the early hours of 26 December 2011 305 The applicant's account in evidence in chief of his role in the disturbance on Boxing Day 2011 was brief. That account was to the following effect: there had been a "heap" of detainees out in the yard that night; Mr Yaxley had come into the yard and had been talking to the detainees, asking them why they were doing what they were doing; he had grabbed a light plastic chair and had hit Mr Yaxley with it; he then had threatened Mr Yaxley with a metal pole about one metre in length; because of his anger, he had not thought about the consequences of his actions; later, he and the other detainees had sat on the ground; police officers had arrived, handcuffed each detainee and escorted them to their cells or the BMU; and he had been taken to the BMU and detained there. 306 The applicant was cross-examined by reference to the CCTV footage but said that he could remember little of the events which were depicted. He did, however, acknowledge that he was shown throwing a plastic chair at Mr Yaxley and "pointing" a metal pole at him. 307 As will become apparent, the applicant's account of his conduct in the events in the early hours of Boxing Day 2011 is incomplete and underplayed in significant respects. 308 The Court has evidence from Mr Brown and Mr Yaxley concerning the events on the night of Christmas Day and in the early hours of Boxing Day 2011. In addition, the Court received a good deal of documentary evidence including IOMS reports, other contemporaneous records, and communications, as well as the vision recorded by CCTV cameras. The evidence of Mr Brown and Mr Yaxley about the events in the early hours of 26 December 2011 was reliable. It was for the most part supported by the documentary evidence and CCTV footage. 309 On the basis of the oral and documentary evidence I make the following findings. 310 After the lockdown on the evening of Christmas Day the fire alarm in Don Dale was activated three times: at 9.15 pm, 11.45 pm and 1.20 am. Later it was found that the alarms had been deliberately activated by detainees in one cell holding a cigarette lighter to a smoke detector. Chubb Security attended in response to the first and second alarms and the Fire Department attended all alarms. 311 Following each alarm, all the detainees were moved, in accordance with established evacuation procedures, from their rooms to muster points in the courtyard adjacent to the maximum security section. This meant that all detainees were in the one area, whether they had come from their rooms or the BMU and whether they were male or female. However, the female detainees were mustered in a separate area of the courtyard. There were three YJOs on duty: one monitoring the male detainees; one monitoring the female detainees; and one exercising overall supervision. On the third alarm, some of the detainees took with them mattresses, pillows and blankets. 312 The "disturbance" commenced after the third alarm when some detainees disregarded the instructions of the YJOs, with several scaling the fence surrounding the swimming pool and jumping into it and some running onto the adjacent basketball court. Some detainees threw a mattress into the pool; some climbed onto the roof of the school building; one (recorded as Mr Voller) threw a table against a window to the administration offices; and some tried to set a blanket alight using a cigarette lighter. 313 The applicant was an active participant in the disturbance. He wrenched a one metre metal pole used to support the standpipe for a tap from the ground. The applicant used the pole to smash windows in the school building and then set about smashing a CCTV camera attached to that building and windows to the dining room area. He and other detainees sought to break into that area. In addition, the applicant repeatedly rammed himself into the door of the isolation unit in an attempt to break it down. 314 Other detainees were also running about, attempting to smash things, throwing chairs and tables, tearing mattresses and sheets and banging locked doors in attempts to open them. These included the doors to the Music Room and to the Youth Workers' office. Detainees did break into the classroom and one (recorded as Mr Voller) threw a computer hard drive onto the basketball court, thereby smashing it. There was general yelling of abuse as well as yelling about escaping. Two couples of male and female detainees took advantage of the opportunity created by the mayhem to engage in sexual intercourse. 315 Not all the detainees in the courtyard area participated in the disturbance. Indeed, many remained compliant with the directions from the YJOs. Several of these were moved to the Medium Security area. Three became "trapped" in the airlock between the Maximum and Medium Security sections when YJOs deemed it imprudent, in the interest of maintaining security, to release them. It seems that those principally involved in the disturbance numbered 11. 316 There were several references to the disturbance as a "riot", and I am satisfied that that is an appropriate description. 317 Mr Yaxley was notified and he arrived at Don Dale at about 1.45 am. He had also earlier attended after the second alarm. The police arrived at approximately 2 am and assistance was sought from Correctional Officers at DCC. Mr Brown arrived at approximately 4 am and remained until after the day shift arrived so that he could brief them. 318 On his arrival, Mr Yaxley immediately entered the courtyard area from the main office. He saw a number of detainees running around the courtyard area. In particular, he saw the applicant attempting to breach the courtyard external gate using the metal pole. CCTV footage shows Mr Yaxley moving towards the applicant in a purposeful way. I accept Mr Yaxley's evidence that, while doing so, he was instructing the applicant to put down the pole and to cease his activities. The applicant did drop the pole but picked up a plastic chair which he threw forcefully at Mr Yaxley. He told Mr Yaxley that he would kill him. 319 The CCTV footage then shows another detainee (identified as Mr Lawrie) approaching Mr Yaxley in a threatening manner. Mr Yaxley said (and I accept) that Mr Lawrie was saying words to the effect of "what are you going to do now, Mr Yaxley, we're in control". Mr Lawrie had in his hands two jagged shards of glass using cloth material as a grip. 320 Mr Yaxley then started to retreat by walking backwards towards the door to the courtyard area. As he did so, the applicant moved towards him in a threatening manner, holding the metal pole at about head height and pointed at Mr Yaxley, and yelling at him "what are you going to do now, Yaxley, this is what you get for not sending me back to Alice Springs, I am going to kill you". At about the same time, Mr Lawrie said to him words to the effect of "I am going to stab you and put holes in you, you mother fucker". 321 As Mr Yaxley retreated toward the door to the Youth Workers' office, another detainee (recorded as Mr Voller) approached him, saying "What are you going to do now, you mother fucker?" At about the time Mr Yaxley exited the courtyard area to the Youth Workers' office the applicant said "get back in that office, this is our place, we run this place". 322 Shortly afterwards, while in the Youth Workers' office, Mr Yaxley saw that the external gate to the courtyard area was being breached. He and prison officers from DCC went immediately to that gate. By the time they got there, the gate had been opened and Mr Lawrie was standing there with the appearance that he was about to run. However, when he saw the prison officers and Mr Yaxley, he returned into the courtyard and the gate was secured. 323 While this was happening, other detainees were engaging in destructive behaviour, yelling abuse, threatening harm to YJOs, throwing chairs and tables, tearing apart mattresses, attempting to tear sheets, breaking windows, breaking educational equipment and banging doors. 324 Mr Yaxley decided, in conjunction with the Police and Correctional Officers that it was preferable to allow time for the detainees' behaviour to abate, rather than to make an intervention with force. 325 By about 3-3.30 am, the 11 detainees had calmed to the extent that they could be escorted, individually handcuffed, back to their rooms or to the BMU. While this was occurring, they yelled abuse to the YJOs, kicked and punched at doors, and threatened to bash them. The applicant was among those yelling abuse at the YJOs, police and prison officers. One YJO, Ms Clancy, recorded that the applicant had yelled abuse at her as the detainees were being taken to their cells, including stating that "we were dogs and cunts", that she was "a slut" and that the police and prison officers were "pigs". She also said that she had heard the applicant and Mr Lawrie "make sounds like they were trying to draw spit through their throats" and said that she and other YJOs had left before they had had the chance to do so. 326 At about 3.30 am, the applicant was placed in BMU Cell 4. The Security Cell Placement Journal recorded this as a new period of placement in the BMU. 327 Subsequently, on 14 January 2012, the applicant was charged with a number of offences arising from his conduct in the Boxing Day disturbance. The Court was not provided with the summons or charge sheet, but the charges appear to have included aggravated assault, making a threat to kill, making a threat to injure or cause detriment, being armed with an offensive weapon, engaging in violet conduct, and unlawfully damaging property. The applicant had Court appearances on these charges on 8 and 29 May and on 12, 18 and 19 June, before he pleaded guilty on 29 June 2012 to the offences of being armed with an offensive weapon, aggravated assault and causing damage to property. 328 I record that, at the trial, the applicant did not pursue his pleaded claims that he had been subjected to an unauthorised use of force when taken to the BMU. 329 Mrs Palmer was cross-examined with reference to a letter dated 16 June 2012 she had sent to Mr Brown. In that letter, Mrs Palmer, amongst other things, relayed the applicant's account of some of the events on the night of Christmas Day including quoting verbatim one statement said to have been made by the applicant in the incident. She confirmed that the account of the applicant's conduct which she relayed to Mr Brown had been given to her by the applicant himself and there is no reason to suppose that that was not the case. That account was inconsistent with the documentary evidence, the CCTV footage and with Mr Yaxley's evidence, so much so as to be seriously misleading. Amongst other things, it portrayed the applicant as having behaved in a responsible, even heroic, manner during the disturbance, including by disarming a fellow detainee who was threatening Mr Yaxley. On the basis of that account, Ms Palmer had contended in 2012 that the applicant's "bravery" in the incident should have been recognised. It is plain that the applicant had not been truthful to Mrs Palmer.
Detention in the BMU: 26-28 December 2011 330 The applicant was held in the BMU until about 4.45 pm on 28 December 2011 when he was removed to the DCC. 331 The records indicate that, at the time of his transfer to the DCC, the applicant was regarded as having spent 61 hours and 27 minutes in "isolation placement" which is consistent with him having been in that placement since about 3 am on 26 December 2011, that is, when the applicant was placed in the BMU after the disturbance. 332 Initially, the applicant was held in Cell 4 in the BMU by himself. 333 On the evening of 27 December 2011, the circumstances in the BMU changed when an additional five detainees, including Mr McLean, were placed in it. Mr Yaxley deposed, and I accept, that this was because they had "escalated their aggressive and threatening behaviour" so that he considered that they should be placed in the BMU. This was achieved by the doubling up of detainees in the isolation cells. Mr McLean was put into Cell 4 with the applicant.
The removal to the DCC 334 On 28 December 2011, Mr Yaxley applied to a Magistrate in writing for approval to transfer the applicant to the DCC. I set out the substance of this application: APPLICATION I, Michael Yaxley, Superintendent, Don Dale Detention Centre, make an application that: Pursuant to section 154(3) of the Youth Justices Act ("the Act"), detainee Marley Campbell be confined separately for a period not exceeding 24 Hours at the Darwin Correctional Centre and be returned to the Don Dale Centre at the expiration of that time unless further ordered by a magistrate to remain. The grounds upon which the application is sought under section 154(1) of the Act, is that an emergency situation has occurred and as an interim measure and to resolve the immediate security and safety threat to staff and other detainees at the Don Dale Centre this detainee should be transferred temporarily to Darwin Correctional Centre. Marley Campbell is currently serving a sentence of 2 years and 3 months for the offence of Aggravated ·Robbery. He has been identified as one of the main perpetrators in a serious incident that occurred at the Don Dale Centre in the early hours of the morning on 26 December 2011. A series of fire alarms were activated by some of the detainees, causing all detainees to be evacuated to a common area for their safety. In the confusion that ensued Campbell and a fellow detainee, Jason LAWRIE, armed themselves, Lawrie with shards of broken glass and Campbell with a metal bar. They then caused damage to property. Campbell and Lawrie threatened violence towards staff members and made threats to kill staff members and used the metal bar to jimmy open a perimeter security gate in order to attempt an escape. Their escape was prevented by staff and police who had attended in response to the situation. Campbell and Lawrie have since been confined to security cells within Don Dale with eight (8) other detainees, as there are no facilities for them to be held individually. Campbell and Lawrie have continued to incite the other detainees housed in the same area to escape and cause violence to staff and further property damage. Campbell and Lawrie have asserted that staff at Don Dale cannot take any further action against them or other detainees for any attempts to escape or violence or property damage. This behaviour has continued since the incident and has not improved. Section 153(5) of the Act only allows detainees to be held in the security cells for a maximum period of 72 hours. This maximum period expires at approximately 3am on 29 December 2011. There are insufficient facilities to hold Campbell and Lawrie at Don Dale, given their behaviour. Northern Territory Police are investigating the incident and I anticipate that charges will be laid. In the meantime, Campbell and Lawrie are causing unrest and their behaviour is subversive to the good order of the detention centre, and this behaviour poses a threat to the security of the centre and to the safety of staff and other detainees. (Emphasis in the original) 335 Mr Brown "vetted" this application before it was submitted to the Magistrate and gave his approval for it to be made. 336 Magistrate Wallace granted the application and returned the signed order to Mr Yaxley at 3.59 pm on 28 December 2011. The order stated as follows: Pursuant to section 154(3) of the [YJ Act], detainee Marley Campbell be confined separately for a period not exceeding 24 Hours at the [DCC] and be returned to [Don Dale] at the expiration of that time unless further ordered by Magistrate to remain. 337 As is apparent, Magistrate Wallace made a positive order that the applicant be confined at DCC for a period not exceeding 24 hours. This appears to have exceeded the function imposed on a magistrate by s 154 which contemplated only the magistrate giving approval for the transfer. It was not suggested that anything turned on this. 338 The applicant and Mr Lawrie were transferred to DCC at approximately 4.42 pm that same day. Mr McLean was also transferred to DCC but the evidence did not indicate when that occurred, nor when he returned. 339 On 29 December 2011, Mr Yaxley applied for an extension of the period of transfer to DCC. Some of the application, including the statement of the grounds upon which the application was made, replicated the application made on 28 December 2011. However, Mr Yaxley provided further details concerning the background to the application and included the following additional material: There are insufficient facilities to hold Campbell and Lawrie at Don Dale, given their behaviour, which was causing unrest and was subversive to the good order of the detention centre. In addition, they continue to make serious threats against staff and it is considered that they pose a continued threat to the safety of staff and fellow detainees … Since the granting of [the order by Magistrate Wallace on 28 December], the remaining detainees held in the security cells continue to be disruptive and a further detainee, Rhys McLean has also become increasingly disruptive. Returning Campbell and Lawrie to these cells would be counterproductive before the remaining detainees have ceased their disruptive and violent behaviour and have returned to their normal accommodation. 340 Magistrate Wallace made the order in the same terms as on the previous day and sent the order by facsimile to Mr Yaxley at 3.59 pm that same day. 341 Mr Yaxley made a third and fourth application for an extension of the period of transfer on 30 and 31 December 2011 respectively. These applications were substantially in the form of the second application, albeit that Mr Yaxley added some information about progress at Don Dale and about the applicant's behaviour at DCC. These applications were granted (by Magistrates Wallace and Neill respectively). The extension granted by Magistrate Neill on 31 December was for a period not exceeding 48 hours. 342 While at DCC, the applicant was held in isolation, initially in C Block and later in B Block. 343 On Monday 2 January 2012, Mr Yaxley applied for a further extension but Magistrate Smith declined to grant it. Mr Yaxley reported to staff at Don Dale that the Magistrate considered that "the emergency situation [is] not apparent as it stands today".
Returning to Don Dale 344 The applicant was then returned to Don Dale at 2.40 pm on 2 January 2012. He, together with Mr McLean and Mr Lawrie, were then detained in the BMU, each on the basis of an IMP. The applicant was then held in the BMU until 9 January 2012, at which time he returned to the regular activities in Don Dale.
The Intensive Management Plan for the applicant 345 On 28 December 2011, Mr Yaxley and Ms Blakemore (the Senior Case Worker), prepared an IMP for the applicant in anticipation of his return to Don Dale. It was then thought that that would occur on 29 December 2011. 346 At its commencement, the IMP stated: This intensive management plan has been designed to address Detainee Marley Campbell's recent behaviours which include threatening staff with a weapon, namely a steel bar/pipe, extreme non compliant behaviour, inciting disruptive behaviour, and attempted escape, requiring the presence of police and the prison Emergency Response Group. Detainee Marley Campbell requires a management regime that will ensure that his current conduct will be negated by a positive performance based set of disciplines. If an "At Risk" situation should occur, an "At Risk" (Red) file is to be initiated and he is to be placed in a camera cell with the approved at risk material clothing/bedding items. 347 With respect to the applicant's accommodation, the IMP provided: ACCOMMODATION Detainee Marley Campbell is to be housed away from the general population of his accommodation area in a setting that offers a higher degree of control and supervision than otherwise available to ensure the safety of staff, other detainees and his own safety. This placement is not a punitive sanction. Detainee Marley Campbell is to be housed in the isolation area. Detainee Campbell shall have access to 30 minutes of recreation time outside of the cells, per shift, whereby he can also access the Prisoner Telephone System. He can be in the presence of one other detainee whom is also housed within the Isolation Area. Staff are to strictly monitor his behaviour, and if there is any adverse sign of his demeanour changing, he is to be relocated back to his assigned housing area. Strict procedures are to apply to Detainee Marley Campbell in his accommodation area on a daily basis; staff should be firm but fair in dealings with him. Detainee Marley Campbell will be subject to the regimes that apply to the approved accommodation area within relevant Superintendent Instructions. The relevant Shift Supervisor will ensure that detainee Marley Campbell receives the approved "out of cell" time applicable to his current Management Plan. 348 With respect to "compliance with officers' instructions", the IMP provided: COMPLIANCE WITH OFFICERS INSTRUCTIONS Detainee Marley Campbell is expected to comply with all reasonable instructions issued by officers. In some instances, it may be appropriate to allow the prisoner a few minutes grace in which to begin complying with the instruction. If Detainee Marley Campbell clearly refuses to comply with an instruction, he is to be resecured in the isolation cell. (Emphasis in the original) 349 The evidence indicates that the IMP was implemented for the applicant when he returned to Don Dale on 2 January 2012 and he was kept in the BMU in accordance with its terms. The applicant said that he was told on his return that he was going "to start [on] a management plan", and that his placement in the BMU would depend on his behaviour ("if I stuffed up … I've got to stay down there longer"). I accept that evidence. 350 The IMP indicated that it was to be reviewed on 3 January 2012. Mr Yaxley said, without objection: It would have been reviewed at or around that time and a new plan prepared and circulated. However, there is no reference in the documents to such a review having been undertaken. Mr Yaxley acknowledged that he had not been able to locate a revised plan, and such a plan was not in evidence. Mr Yaxley did not have recollection of the content of such a revised plan. In those circumstances, I am not satisfied that a review was undertaken or that a revised plan was prepared. I think it more likely that the IMP prepared on 28 December 2011 continued to govern the applicant's detention.
The applicant's pleaded claims 351 The applicant pleaded that his detention in isolation during the period commencing 24 hours after he went into the BMU in the early hours of 26 December 2011 until he was removed from the BMU on 9 January 2012 constituted false imprisonment, and sought damages on account of that false imprisonment. This claim was made in a number of alternative ways: (a) he had been kept in isolation for the whole of the period commencing at about 3.30 am on 26 December 2011 until 9 January 2012, and none of the period after 3.30 am on 27 December had been authorised pursuant to s 153(5); (b) in the alternative, he had been kept in isolation at DCC from approximately 4.45 pm on 28 December 2011 until removed back to Don Dale at 2.40 pm on 2 January 2012 and that detention was unauthorised. As part of this plea, the applicant contended that none of the first, second or third approvals given by Magistrate Wallace had authorised the applicant's detention in isolation at DCC; (c) he had been kept in isolation in the BMU between 2 and 9 January 2012 which had been without lawful authority because it was unauthorised by any statutory power available to Mr Yaxley and, in any event, the continued detention in the BMU had not been authorised by the Director; and (d) if the Director had given an approval for the first 72 hours commencing on the return to Don Dale on 2 January 2012, the Director had not given, and it had not been open to the Director to give, approval for the continued detention in isolation from 5 January 2012. 352 For reasons which will become apparent, it is necessary to consider separately each of the two periods of detention in the BMU at Don Dale and the period at DCC. For this reason, I will not address separately the first of the applicant's pleaded alternatives, that is, the claim in respect of the overall period.
The claim of false imprisonment in the BMU: 27-28 December 2011 353 A number of issues arise in relation to the applicant's claim that he had been falsely imprisoned from, in effect, 3.30 am on 27 December 2011 until 4.42 pm on 28 December 2011: (a) did that period constitute detention in isolation? (b) if so, was that isolation for the purpose authorised by s 153(5)? (c) even if it was authorised, was the continued confinement in isolation after 3.30 am on 27 December 2011 until his removal to DCC, with the approval of the Director? (d) insofar as the respondents rely on the approval of Mr Brown, had he been vested with the powers and authority of the Director? (e) to the extent that the applicant was kept in unauthorised isolation, did that constitute false imprisonment so as to sound in damages?
Did the detention in the BMU between 27 and 28 December 2011 constitute isolation? 354 Earlier in these reasons I set out my understanding of the term "isolated from other detainees" in s 153(5) of the YJ Act. 355 Throughout his time in the BMU, observations were made of the applicant every 15 minutes. The great majority of the observations recorded that the applicant was "lying in bed" or "lying on bed". The applicant was given his meals in Cell 4 and, so far as the records indicate, was allowed out to the exercise yard only once on each of 26 and 27 December 2011 and four times for a shower. However, Mr Yaxley said, and I accept, that the applicant had been permitted to leave Cell 4 twice each day for a half hour on each occasion. He also said that, until the applicant was joined by Mr McLean, his times outside of his cell had been as an individual. After he was joined by Mr McLean, there was at least one occasion when both he and Mr McLean were out of the cell at the same time. This is confirmed by the documentary evidence to which I shall return shortly. 356 The applicant acknowledged, and the evidence otherwise confirmed, that while in the BMU cell, he had been able to, and did, talk with the detainees occupying the other BMU cells. The evidence about the ease with which this occurred was not explicit. I infer, however, that this must, at least in part, have been by the detainees using raised voices. I observe that, at one stage, the applicant explained his inability to remember what the detainees had been talking about by saying "everyone was taking over each other". 357 During the 30 minute periods while the applicant was out of the cell, he was also permitted to make phone calls. 358 Counsel for the respondents submitted that the applicant's detention in the BMU Cell between 3.30 am on 26 December and 4.42 pm on 28 December 2011 did not constitute being kept in isolation because: the applicant had been able to communicate with the detainees in the other cells; from the evening of 27 December, he had had the company of Mr McLean; he had been allowed out of the BMU Cell on at least one occasion in company with Mr McLean; and account had to be taken of the fact that all detainees in Don Dale had less freedom and amenities during this period because of the damage which had been caused in the Boxing Day disturbance. 359 I do not accept this submission. First, I have rejected the construction of the term "isolate from other detainees" propounded by the respondents that isolation requires "a complete inability for any kind of interaction between the detainees". 360 Secondly, on any reasonable view, the applicant was, by the direction of Mr Yaxley, separated from his fellow detainees in this period. The extent of the applicant's isolation from other detainees and the usual activities in Don Dale is evidenced by the fact that he spent the great majority of his time lying on his bed. This was hardly a matter of choice for the applicant. I record that the applicant was not provided with anything at all with which to occupy himself, such as a television, reading material, games, puzzles, a pack of cards or the like. He had literally nothing to do. Although these are not the applicant's words, his time in the BMU must have been one of mind numbing tedium. The fact that he was able to communicate with the limited number of detainees held in the BMU does not cause me to take a different view. He could not mingle with them or engage in activities with them, and, apart from the times in the exercise yard with Mr McLean, was not even permitted to be in the exercise yard with them. 361 In my view, the fact that from the evening of 27 December 2011 the applicant had Mr McLean in Cell 4 does not alter the view that he was kept in isolation from other detainees in the way discussed earlier in these reasons. That is to say, the circumstance that the applicant could have contact with, and the companionship of, one detainee does not alter the circumstance that he was kept isolated from "other detainees". He continued to be subject to the same limitations and restrictions referred to earlier, despite being required to share Cell 4 with Mr McLean. 362 Although it is not conclusive of the position, I note that Mr Yaxley's seeking of approval from Mr Brown for the applicant to be kept in the BMU for more than 24 hours, the terms of his application to Magistrate Wallace and the content of an email to Mr Yaxley from SYO Jamie Clee at about the same time evidenced an understanding by them that the applicant was in "isolation placement". 363 Accordingly, I conclude that the applicant was kept in isolation in the BMU at Don Dale for the whole of the period commencing at about 3.30 am on 26 December and continuing to 4.45 pm on 28 December 2011.
Was the isolation between 27 and 28 December 2011 for a s 153(5) purpose? 364 The fact that the applicant's claim for damages relates, in effect, to the period commencing at about 3.30 am on 27 December 2011, seemed to involve an implicit acknowledgement that his detention in the BMU for the 24 hours preceding that time had been for a s 153(5) purpose. However, as the applicant does not make that acknowledgement in respect of the period commencing at 3.30 am on 27 December, it is necessary to make findings concerning the purpose of the detention which preceded it and whether that was the continuing purpose. 365 Mr Yaxley's evidence indicated that he had a number of reasons for placing the applicant and others in the BMU. These included the highly destructive behaviour of several of the detainees including the applicant, the damage to the Centre, the existence of damaged infrastructure strewn around the Centre which could be "weaponised" by detainees, the requirement for clean-up and repairs, the demonstrated potential of some detainees to injure staff seriously, and avoidance of the risk that the principal participants in the disturbance would engage in, or incite, other detainees to engage in, non-compliant behaviour. Mr Yaxley also noted that the nature of the doors to the "ordinary" bedrooms in Don Dale was such that they could be forced open by a determined detainee, with the consequent risk of escape. Having regard to these matters, he had thought that there was no safe place in Don Dale in which to accommodate the "higher risk" detainees other than in the BMU and had therefore decided that six detainees, of whom the applicant was one, should be held in there. He had discussed these matters with Mr Brown, including the options available for managing these detainees. 366 I accept this evidence. In particular, I accept his evidence that he had thought that the detainees were "likely to be in an escalated state for a number of days". 367 It was obvious that action had to be taken after the prolonged period of uncontrolled, violent, destructive and threatening behaviour to restore good order at Don Dale, and to make it safe and secure. The applicant's conduct, in particular his threats and conduct, made it especially appropriate for him to be isolated from other detainees in order to protect other persons, including Mr Yaxley himself, and to promote order and security at Don Dale. Mr Yaxley's placement of the applicant and the other principal aggressors in the BMU could not reasonably be characterised as having been for other than a s 153(5) purpose. It is understandable that the applicant's counsel did not submit to the contrary. Mr Yaxley deposed (and I accept) that this was his purpose throughout the period of the applicant's detention in the BMU. 368 A number of matters provide an objective basis for Mr Yaxley's continuing opinion: (a) Mr Yaxley himself observed that the applicant was "awake and disruptive" until 4.15 am on 26 December; (b) a YJO recorded the applicant as having "refused to comply with staff directions" at 10.35 am on 26 December 2011, although the evidence did not indicate the nature of the non-compliance; (c) an IOMS report records the applicant having said at 3.10 pm on 27 December that when released "I'm gonna fuck Yaxley up properly this time, that mother fucker is gonna get it"; (d) on 27 December 2011 at 10.13 pm, a YJO entered the following report in the IOMS: Over the past 2 afternoon shifts I have heard the above detainees mention they are going to cause another disturbance as they are under the impression that the prisoner officers and police are too scared to try and stop them because they did not intervene during the last disturbance. It is not clear who exactly said this but it was heard via the intercom while the above detainees mentioned were in isolation. The list of the detainees to whom the YJO referred included the applicant. The YJO also recorded that the "detainees were openly talking about taking it all away next time and stopping for no authorities"; (e) the IOMS contains a report from a YJO that he had heard the applicant and another detainee "threaten to do what they did on Boxing [Day], ie, run a muck as they described and also again next Xmas". (f) the IOMS contains a report on an incident at 9.35 pm on 27 December 2011 in which seven detainees in the BMU had abused YJO Clancy calling her "a dog, slut, arsehole and cunt", and stated that it was her fault that they were in the cell. One of the detainees said that he knew where YJO Clancy shopped and that he was going to have her bashed. The applicant was one of the group of detainees engaged in this abuse although YJO Clancy was not able to identify specifically whether he had spoken the words set out above; (g) the IOMS contains a report of five detainees in the BMU (including the applicant) making sexually offensive remarks to female detainee at approximately 9 am on 28 December 2011; (h) the IOMS contains a report by Mr Donald that he had been told at 11.12 am on 28 December 2011 that the detainees in isolation, who included the applicant, have formed a "gang"; (i) the IOMS contains a report of six detainees, including the applicant, yelling several times to Mr Lawrie as he was being taken to the toilet "go mad, run a muck Jason"; and (j) the IOMS records an incident of prolonged non-compliance by Mr McLean and the applicant on the afternoon of 28 December while they were out of Cell 4 for showers and phone calls. It will be necessary to return to an aspect of this incident but, for present purposes, I consider it of less significance because, by the time it occurred, Mr Yaxley had also sought the Magistrates approval for the transfer to DCC and that transfer occurred very soon afterwards. 369 No doubt some of these incidents were more serious than others and much may have depended upon matters of tone and context and whether they were no more than expressions of bravura. Mr Yaxley was, however, entitled to take the view, as he did, that the position in Don Dale was unstable and that the applicant was not evidencing behaviour consistent with the good order of the Centre. This isolation of the applicant from the compliant detainees was a way of restoring order at Don Dale and of calming the situation down. Accordingly, I have no difficulty in finding that the applicant's continued detention in the Don Dale BMU until 4.45 pm on 28 December 2011 was for a s 153(5) purpose.
Did Mr Yaxley have the approval of the Director? 370 This issue gives rise to two questions: did Mr Yaxley in fact have the approval of Mr Brown in isolation for more than 24 hours; and, if so, did Mr Brown himself have the authority to give that approval?
Approval by Mr Brown? 371 The documentary evidence does not include any formal approval by Mr Brown, pursuant to s 153(5) of the YJ Act, for the applicant to be kept in isolation for a period beyond 24 hours. Mr Yaxley deposed, however, that during 26 and 27 December 2011, he had been in regular contact with Mr Brown concerning the circumstances created by the Christmas night disturbance and said "I would have asked for and received approval to keep the detainees housed in the BMU … for up to 72 hours". He also deposed: [83] … While I do not recall the specifics of the conversations, I recall that the continuing placement of detainees in the BMU was discussion on a number of occasions. 372 This manner of expression, and the absence of any documentary evidence of the approval in accordance with reg 72(3)(g), gives rise naturally to a concern as to whether Mr Brown had in fact given his approval. However, Mr Brown, who was plainly an honest witness, confirmed that he had spoken to Mr Yaxley two or three times each day after leaving Don Dale on the morning of 26 December 2011. In those conversations, they had discussed, amongst other things, the need for IMPs for the "main aggressor detainees" and their appropriate placement. 373 Other evidence indicates that the length of time which the detainees were spending in the BMU was being monitored. It is also evident that the imminent expiry of the 72 hour limitation was a matter prompting Mr Yaxley's application for approval of the applicant's transfer to DCC. These matters evidence a consciousness by Mr Yaxley of the limitations imposed by s 153(5). 374 These matters in combination satisfy me that Mr Yaxley did seek and obtain the approval from Mr Brown for the continued placement of the detainees including the applicant, in the BMU. 375 I also infer that the absence of a written approval may be explained, at least in part, by the pressures on Mr Yaxley on 26 December 2011 and following. Apart from managing the detainees, he had to address and deal with multiple matters in the aftermath of the disturbance, including arranging the clean-up of Don Dale; arranging repairs and/or replacements by electricians, plumbers, glaziers, painters and locksmiths; replacing the damaged equipment and materials which were needed for ongoing operations; settling down, and attending to the welfare of, the detainees in the damaged detention centre, including those who did not participate in the disturbance; attending to the welfare and morale of the staff (some who had been emotionally affected by their experience); organising the rostering arrangements in order to provide increased security; reviewing matters bearing on the security of Don Dale and the safety of staff and detainees; and dealing with the Northern Territory Government in relation to the disturbance. There are references to these matters in the documentary evidence. No doubt Mr Yaxley did not have to attend to each matter personally, but it is reasonable to infer that they would have occupied a reasonable amount of time and provide a ready explanation of why he may not have sought in writing the approval of Mr Brown for the continued detention of the applicant in the BMU. That is not to say of course that these matters provided a lawful justification for Mr Yaxley not making a written record of Mr Brown's approval, as required by reg 72(3)(g) of the Regulations.
The authority of Mr Brown 376 The applicant disputed that Mr Brown had been acting in the position, and performing the functions, of the Director while Mr Middlebrook was on leave and so able to give Mr Yaxley the necessary authority. 377 The applicant's submissions as to the authority of Mr Brown as Director were brief: The Director at the time was Mr Ken Middlebrook. He held an appointment under the Prisons Act and could appoint a delegate under s 7, but only in respect of powers and functions under the Prisons Act, not the YJ Act. 378 The applicant is correct in his submission concerning the effect of s 7(1) of the Prisons Act as it provides: The Director may delegate any of the Director's powers and functions under this Act to a person. 379 However, the YJ Act in s 216 (to which counsel for the applicant did not refer) contains its own power of delegation: The Minister or Director may delegate in writing to a person any of his or her powers and functions under this Act. 380 The respondents did not adduce evidence of a delegation in writing of Mr Middlebrook's powers and functions to Mr Brown. They also accepted that there was no documentary evidence of Mr Brown having been appointed as Acting Director. The respondents relied instead on s 41 of the Interpretation Act 1978 (NT) which provides: 41 Occasions for exercise of powers etc. (1) Where an Act confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires. (2) Where an Act confers a power or imposes a duty on the holder of an office or the occupier of a position or designation as such, the power may be exercised and the duty shall be performed by the person for the time being holding or occupying or performing the duties of the office, position or designation. 381 In JB v NT, Southwood J and Graham AJ (with whom Riley AJ agreed) noted that there were two possible interpretations of s 41(2), at [91]-[92]. The first is that the reference to "the person for the time being holding or occupying or performing the duties of the office, position or designation" is a reference to a person validly appointed or validly designated as such. The second, as I understand their Honours' reasons, is that the term refers to the person who, for the time being, is in fact "holding or occupying or performing the duties of the office, position or designation". Their Honours did not express a concluded view about these alternatives. 382 In my view, s 41(2) is to be understood in the light of subs (1). Just as a power may be exercised, and a duty performed, from time to time as occasion requires, the powers or duties conferred or imposed on the holder of an office, the occupier of a position and a person holding a particular designation may be exercised or performed, as the case may be, by the person who, from time to time, holds that office, occupies the office or performs the duties of that office, position or designation. The reference in the concluding clause in s 41(2) to the person "performing the duties' of the office, position or designation is, to my mind, a legislative indication that, at least in respect of that alternative, the reference is to the person in fact performing those duties. 383 Moreover, having regard to the evident purpose of s 41(2), there is no need for it to be construed strictly. Like Southwood J and Graham AJ, I consider that s 41(2) is a recognition of "the reality that, from time to time, for various reasons including the absence of the holder of the office or occupier of the position, or the length the process of appointment, it will be necessary for a person to act in the office or position or 'designation as such' on a provisional or interim basis until more formal arrangements are made, and to temporarily exercise the conferred powers and perform the imposed duties". 384 Apart from Mr Brown's own evidence, which I accept, there is other evidence that in late December 2011 and early January 2012 Mr Brown was performing the duties of the office of Director in Mr Middlebrook's absence. Mr Middlebrook said that it was his practice, before going on leave, to discuss arrangements with the Chief Executive of the Department of Justice to whom he reported directly; that there were three persons who were commonly appointed in his absence (so as to achieve a sharing of the relieving responsibility) of whom Mr Brown was one; that he had arranged for Mr Brown to act in his role during his absence in late December 2011 and early January 2012; and that he had understood at the time that Mr Brown had been given a formal delegation. There was no challenge to Mr Middlebrook's evidence about these matters. 385 While there was in fact no formal delegation, the designation of Mr Brown to act as Acting Director in Mr Middlebrook's absence was recognised in an email on 21 December 2011 from Ms Gerdes, the Executive Services Coordinator in the Correctional Services Section of the Department of Justice to a number of persons, including the Superintendents of DCC, Don Dale and ASCC: Margaret Anderson will be away from late afternoon on 22 December 2011 and returning to work on the 5 January 2011 (sic). Phil Brown will be the Acting ED during this period. Margaret will recommence as the Acting ED on 5 January 2011 (sic). Ken Middlebrook is back as ED from 16 January 2011 (sic). 386 Accordingly, I am satisfied that Mr Brown was performing the duties of the Director during Mr Middlebrook's absence, with the consequence that s 41(2) authorised him to give Mr Yaxley the approval required by s 153(5). 387 The conclusion makes it unnecessary to consider the possible application of the principles discussed in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [93], a matter about which the parties did not make any submissions.
Conclusion regarding the December detention in the BMU 388 For the reasons set out above, while I consider that the applicant's detention in the BMU was isolation to which s 153(5) refers, I am satisfied that the respondents have established that the whole of that period of detention was authorised. As the foundation for the applicant's claim does not exist, it is not necessary to consider the remaining elements of his claim of false imprisonment in respect of that period.
The claim of false imprisonment at DCC: 28 December 2011-2 January 2012 389 Although I set out the full text of s 154 earlier in these reasons, I will for convenience repeat relevant extracts: 154 Temporary removal of detainee to prison (1) If the superintendent of a detention centre is of the opinion that: (a) an emergency situation exists; and (b) a detainee should be temporarily transferred to a prison to protect the safety of another person, the superintendent may apply by telephone to a magistrate for approval to transfer the detainee. … (3) If the magistrate approves the transfer, the superintendent may arrange for the detainee to be transferred from the detention centre to a prison. … (7) The period of transfer of the detainee must not exceed 24 hours. (8) However, the superintendent may apply to a magistrate for an extension of the period of transfer. … 390 Section 154 provides for the temporary transfer of a detainee to a prison. It requires three conditions to be satisfied before such a transfer may be made: (a) the superintendent considers that an "emergency situation" exists; (b) the superintendent considers that the detainee should be transferred temporarily to a prison to protect the safety of another person; and (c) a magistrate, on application by the superintendent, approves the transfer. 391 Although s 154(8) does not say so expressly, it is implicit that the same conditions must exist for an extension of the period of transfer. 392 As noted earlier, the term "emergency situation" is not defined in the YJ Act. 393 In his pleaded claim, the applicant seemed to impugn the validity of his transfer to the DCC and of his continued detention there because "no emergency situation existed" - see [72] and [73] of the 6SC. However, in the final submissions, lead counsel for the applicant confirmed that the applicant did not challenge the validity of the approvals (expressed as orders) of the magistrates and did not challenge the existence of the preconditions required by s 154 for the applicant's transfer to DCC. The applicant's claim therefore in respect of his detention at DCC was that it was unauthorised because the manner in which he was held at DCC constituted the isolation from other detainees to which s 153(5) refers and that isolation had not been approved by the Director. 394 Initially, the applicant was kept in a cell in C Block but at 8.15 am on 31 December 2011, he was moved to B Block. An email from the Acting Chief Prison Officer to Mr Yaxley on the morning of 31 December 2011 indicates that the applicant had been moved from C Block to B Block because he had, on the previous day, been calling out to other prisoners and visitors. 395 The conditions in which the applicant was detained in C Block and B Block were in substance the same. Mr Irwin, a Senior Corrections Officer, described Room 5 in B Block as containing a bunk, a toilet, a hand basin with a push-button tap, a camera behind a protector in one corner, solid concrete walls, and a steel door with a viewing window. The cell had an area of 15 m2 (5 m x 3 m). It was not air conditioned. Mr Irwin described Cell 4 in which the applicant was accommodated in C Block in similar terms. These descriptions were similar to those of the applicant. 396 The applicant was kept throughout in the cells by himself on the regime of a prisoner at risk of self-harm. This was not because the applicant was regarded as being at such a risk but because of his "behaviour issues". This meant that he was subject to observation every 15 minutes and given "suicide watch clothes", namely, a gown and shorts. Nearly all of the observations recorded in the "At Risk" Observation Sheet record the applicant as "lying on bed" or "moving around cell", or an equivalent. 397 The Observation Sheet records the applicant leaving his cell on only eight occasions: four times for "hygiene" or a "shower", twice to go to the Medical Clinic, once because his "Aan and Aunty" were visiting, and once to be relocated to B Division. If the applicant was allowed out at other times for exercise, these were not recorded. He was not provided with any means by which to occupy himself, had no means of telling the time and did not speak to other detainees. The applicant's description to Mr Ralph of feeling as though "a day passed like a year" when he was in isolation seems particularly apt in relation to his imprisonment at DCC. 398 In these circumstances, there is no difficulty in concluding that, as a matter of fact, the applicant was kept at DCC in the kind of isolation to which s 153(5) refers, if that provision was otherwise applicable. 399 The confinement of the applicant's case in the closing submissions means that the issue with respect to the applicant's detention at DCC turns on the statutory regime applicable to that detention. The applicant claimed that the regime continued to be that contained in the YJ Act. The respondents contended that it was the regime in the Prisons Act. 400 The elements of the submission of lead counsel for the applicant on this topic were: (a) the Prisons Act does not contain any indication that a youth transferred to a prison is "transformed" into an adult prisoner; (b) section 154 of the YJ Act does not contemplate the "transformation" of a youth detainee into an adult prisoner; and (c) section 157(2) of the YJ Act evinces a legislative intention that prison officers, even when within the confines of a prison, are authorised to undertake the duties, functions and responsibilities of the superintendent with respect to youth detainees. 401 Section 157(2) of the YJ Act provides: A police officer or a prison officer within the meaning of the Prisons (Correctional Services) Act, if called upon by the superintendent of a detention centre to assist in an emergency situation or in preventing an emergency situation from arising, is taken to have been delegated the powers of the superintendent necessary to perform the superintendent's functions under section 151(3)(c). Counsel's submission, as I understood it, was that, because both s 154(1) and s 157(2) operate in relation to an "emergency situation", it should be inferred that, when in such a situation a detainee is transferred to a prison, the YJ Act, and in particular the limitations on the powers of a superintendent, continue to apply. 402 In my view, the submissions of the respondents on this issue should be accepted. In the first place, Div 2 of Pt 8 of the YJ Act makes it reasonably clear that the responsibilities of a superintendent exist in relation to the detention centre - see ss 151-153 in particular. A superintendent is not given responsibilities or functions in respect of youths which are independent of their detention in a detention centre. 403 Secondly, there is no indication that a superintendent has powers with respect to the management or placement in the prison to which a detainee has been transferred pursuant to s 154. 404 Thirdly, the Prisons Act does not contain any indication that a youth detainee transferred to a prison is to be subject to the same regime as existed in the detention centre. Section 157(2) of the YJ Act cannot reasonably be understood as such a provision as it is more naturally understood as referring to the circumstance in which a prison officer is called upon to provide assistance in, or about, the detention centre itself. Moreover, s 157(2) is directed to the powers of individual prison officers and not to obligations of the Director with respect to the conditions in which youth detainees are kept in prison. 405 Further, with limited exceptions, the Prisons Act does not distinguish between youths and adults in a prison. It is to be remembered that s 83 of the YJ Act authorises the Youth Justice Court and the Supreme Court to order that a youth serve a term of detention or imprisonment, with the implication that a youth sentenced to imprisonment will be subject to the regime for which the Prisons Act provides. Section 23 of the Prisons Act also contemplates that youths may be kept in prison because it provides for circumstances in which the Minister may direct the transfer of a youth prisoner to a detention centre. 406 Accordingly, I conclude that the management or placement of the applicant while he was in DCC was subject to the Prisons Act and not the YJ Act. The Director's powers in relation to the applicant on his transfer to DCC were those contained in s 6(2) of the Prisons Act and not those in s 153 of the YJ Act. Section 6(2) provides: (2) Subject to this Act and the directions of the Minister, the Director has the control of all prisons and police prisons, and the custody of all prisoners, in the Territory. 407 In the exercise of those powers in relation to the applicant, the Director was not obliged to observe the restrictions and limitations on detention imposed by the YJ Act but had a discretion, to be exercised reasonably, in relation to the placement of the applicant within the DCC. Counsel for the applicant did not seek to invoke the implied condition of reasonableness in the exercise of the s 6(2) power. 408 This means that, while the applicant proves isolation of a bleak kind while he was in DCC, that detention was not unlawful. Accordingly, the applicant's claim of false imprisonment in respect of the period from 28 December 2011 to 2 January 2012 must fail.
The claim of false imprisonment in the BMU: 2-9 January 2012 409 As previously noted, on his return to Don Dale, the applicant was again placed in the BMU. He pleads that the whole of the period until 9 January 2012 when he returned to a normal room constituted isolation for the purposes of s 153(5). The applicant's evidence that he was in the BMU for "about four weeks" was wildly inaccurate. 410 Similar issues as were discussed in relation to the claim concerning the period between 27-28 December 2011 arise in respect of this period. I will address these in turn.
Did the detention in the BMU between 2 and 9 January 2012 constitute isolation? 411 In this period the applicant was placed in Cell 2. Until the morning of 5 January 2012, the Shift Changeover Check List sheets indicate that there were two detainees in Cell 2 but thereafter the applicant was its sole occupant until the night of 8 January 2012 when he was joined by another detainee. 412 The number of other detainees in the BMU between 2 and 9 January 2012 varied between five and nine. 413 The BMU Placement Journal for the period 2-9 January 2012 indicates that the applicant's placement in the BMU was pursuant to a "management plan". The Journal for 4 January 2012 reports "maximum isolation units morning procedure followed" which indicates an understanding by those involved that the applicant was undergoing a form of isolation. On 5 January 2012, the applicant had a period out of the BMU "for integration". The applicant thought that he had not had any visitors but that is contradicted by the documentary evidence which indicates that he had visits from his family on the afternoons of 4 and 5 January 2012. The evidence did not disclose what the "integration" encompassed, but the use of the term tends to suggest that, while in the BMU, the applicant was isolated from other detainees, rather than integrated in the activities and routines of Don Dale. 414 On the basis of this record, Mr Yaxley deposed that, after 5 January 2012 "Marley was allocated reintegration time, which meant he was permitted to socialise with other detainees outside the BMU cohort as part of the progressive reintegration". However, there is no reference to this in the tendered records, nor to any reviews or assessments of the applicant's progress in the reintegration. In particular, there is no reference to reintegration steps in the notes of the case workers. I considered the absence of records surprising as, had there been reintegration of the kind to which Mr Yaxley referred, I would have expected some documentary references to it. I also note that there is no reference to periods of reintegration in the IMP developed on 28 December 2011. 415 I am satisfied that the applicant was placed, and kept, in the BMU in accordance with that IMP. I am also satisfied that, apart from the matters just mentioned, the regime which applied to the applicant while in the BMU in this period, and the conditions in which he was held, were the same as those which applied between 26 and 28 December 2011. The respondents did not adduce evidence of any relevant difference. I note again, that in relation to the period 26-28 December 2011, Mr Yaxley and others had regarded the applicant's detention as isolation. 416 I conclude, for the same reasons as given in respect of the period in the BMU between 26 and 28 December 2011, that the applicant was in this period isolated from other detainees in the manner to which s 153(5) refers. This includes the periods in which there was a second detainee in the applicant's cell.
Was the isolation between 2 and 9 January 2012 for a s 153(5) purpose? 417 Mr Yaxley did not depose positively to the purpose of the applicant's detention in the BMU from 2 January 2012. He did say that the applicant had been accommodated in the BMU on an IMP and that the aim for detainees kept there was to "facilitate their re-entry into the mainstream accommodation". That this was an aim in respect of the applicant's detention in the BMU is confirmed by an email which Mr Yaxley circulated to the Don Dale staff on 29 December 2011 (at that time the applicant was in the DCC but it can be taken to have been also applicable to him): All staff that has contact with the detainees that are on management plans must write an incident report for the following; • Non compliance and not following staff direction whilst out for half hour break. • Poor behaviour in the cells e.g. blocking the camera with food paper or cards etc. • Verbally threatening or abusing staff whilst in the cell or on their half hour break. • Displaying positive behaviour The incident report must be clear and concise detailing the facts. Please be clear that the intention is for the detainees on the Management Plans to reintegrate back to their rooms, this will be entirely dependant on the individual detainee's behaviour and at the discretion of management. Whilst the detainees are individually out on their reintegration please encourage the detainees that are listening and being compliant and cooperative to start thinking about making the right choices to return to the mainstream population. 418 Mr Yaxley also deposed: [99] Also throughout this time, repair works were being completed throughout the detention centre to repair damage caused during the Boxing Day Incident. Detainees could not get full use of the courtyard area until all of those works were completed. This hindered the detainees classified as Maximum and Admission, in comparison to those on lower classification, in the Medium Section, who had no restrictions. I understood this to be in the nature of a reason, or an additional reason, why the applicant was kept in the BMU. 419 Earlier, I expressed my conclusion that a review of the 28 December 2011 IMP had not been undertaken and that a new IMP had not been developed. I add that, there is no evidence that, upon the applicant's return to Don Dale, an up to date assessment was made of him, his behaviour or of the needs of the detention centre concerning him. Mr Yaxley did not claim that there had been such an assessment, as he said only that the IMP "would have" been reviewed at or around that time and a new plan prepared and circulated. 420 The Security Cell Placement Journal for the period 2 to 9 January 2012 provides only limited information. It can be said, however, that it does not contain any comments adverse to the applicant. The Court was not provided with detainee behaviour reports relating to the applicant for this period. I note, however, that the Seven Day Behaviour report for the week commencing 9 January 2012, when the applicant was back in his room, described his behaviour as "acceptable" and said that he was "well behaved and compliant". It seems probable that there had been at least some improvement in the applicant's behaviour even before 9 January 2012. 421 Mr Yaxley also deposed: [98] Also throughout this time, repair works were being completed throughout the detention centre to repair damage caused during the Boxing Day Incident. Detainees could not get full use of the courtyard area until all of those works were completed. This hindered the detainees classified as Maximum and Admission, in comparison to those on lower classification, in the Medium Section, who had no restrictions. As can be seen, this evidence was very generalised, limiting the weight which can be given to it. 422 The respondents did not adduce evidence of any change in circumstances, or of any assessment, which had led to the decision on 9 January 2012 to remove the applicant from the BMU back to a normal cell. 423 In all these circumstances, I am not satisfied that the respondents (who, as will be seen, have the onus of establishing the lawfulness of the isolation) have shown that the applicant's isolation in the BMU in the period from 2 to 9 January 2012 was to "protect the safety of another person" or "for the good order or security" of Don Dale. It may have been but the evidence does not satisfy me that that was so especially as, at the commencement of the period, seven days had elapsed since 26 December 2011 and the applicant had had the salutary experience of isolation and imprisonment at the DCC.
Was the detention in the BMU between 2 and 9 January 2012 authorised by the Director? 424 Counsel for the respondents drew Mr Brown's attention to Mr Yaxley's email of 2 January 2012 to various recipients when informing them that the applicant and Mr McLean would be returning to Don Dale that day. Mr Yaxley said in the email that the applicant, Mr McLean and Mr Lawrie would be "on the Intensive Management Plan from the security cell area". Mr Brown gave the following evidence in chief in relation to the email and IMP: XN: Did you approve of the plan outlined by Mr Yaxley in this email? A: No. XN: When I asked that question, I didn't mean by that, did you formally authorise Mr Yaxley to take these steps. I mean, did you think this was an acceptable proposal? A: Yes. 425 Mr Brown's attention was then drawn to a report by Mr Yaxley to him on 4 January 2012 in which Mr Yaxley had said "all the detainees involved with the riot have been on [IMPs] from either the security cell or their normal room that are continuing to date and into the future with assessment dates on the 9/1/12". He then gave the following evidence: XN: Did you approve of this? - A: I may have. I don't recall. XN: Is there any reason to think that you did not approve of this? A: No. XN: If you had not approved this, would you have taken some steps? A: Yes. XN: What would you have done? A: I would have really asked the superintendent [for] justification on why we need to extend their assessments to the 9th of [January]. XN: Did you do that? A: No. XN: Were you talking to Mr Yaxley on a daily basis around this time, for January 2012. A: Yes, I was. XN: So sitting here today you now can't recall having the discussion with him where you told him you approved of this? - A: I don't recall. 426 Counsel submitted that this evidence supported the inference that Mr Brown had given the requisite approval. 427 As is apparent in the quoted passages, Mr Brown said expressly that, while he had thought Mr Yaxley's plan in relation to the applicant and Mr Lawrie was acceptable, he had not approved it. He could not say positively that he had approved the continuation of "all the detainees involved with the riot" on IMPs. At its highest, he could say only that he had not asked for a justification which he would have sought had he not given an approval. There are unsatisfactory aspects of this evidence (it was adduced by leading questions), and it seemed to depend on an inference drawn from a matter about which Mr Brown was surmising, rather than having a definite recollection. It is pertinent that Mr Brown was not asked whether he had considered the purposes of the isolation, or its period. He gave no evidence of any consideration of the 72 hour limitation on isolation imposed by s 153(5) in respect of this period. Nor for that matter did Mr Yaxley. 428 Even if those issues are put to one side, as noted earlier, Mr Brown ceased to perform the duties of Director on 5 January 2012 and Ms Anderson recommenced as the Acting Director. Mr Yaxley did not claim that he had sought approval from Ms Anderson in Mr Middlebrook's absence and there is no evidence that he had done so. Even if Mr Yaxley had sought approval from Mr Brown or Ms Anderson, the maximum period for which they could have given approval expired at 2.40 pm on 5 January 2012. 429 There is no indication in the evidence that there was any advertence to the 72 hour maximum in respect of the period 2-9 January 2012. 430 I conclude that the respondents have not established a lawful justification for the applicant being kept in isolation for any of the period between 2 and 9 January 2012.
Unauthorised isolation in the BMU and false imprisonment 431 False imprisonment is often described as any wrongful total restraint on the liberty of the plaintiff which is directly brought about by the defendant: see, for example, Trindade FA, 'The Modern Law of False Imprisonment', in Mullany N (ed), Torts in the Nineties (Sydney, 1997) 229. The restraint is wrongful if it is without lawful justification. 432 In State of South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331, the Full Court of the Supreme Court of South Australia (Doyle CJ, Duggan and White JJ) said at [282]: [T]he factual essence of the cause of action is the placing of a "total restraint" on the plaintiff's movement. That restraint need bear no similarity to what one would normally describe as imprisonment. The law has moved on from any such limitation. 433 In Darcy v State of New South Wales [2011] NSWCA 413, Whealy JA, with whom Allsop P (while adding some reasons of his own) and Beazley JA agreed, said of the tort of false imprisonment: [141] In the 10 th edition of Fleming's The Law of Torts the learned authors say (at p 36 [2.80]): The action for false imprisonment protects the interest in freedom from physical restraint and coercion against the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either causing that person's confinement or preventing that person from leaving the place in which he or she is. [142] It is further observed, in the same paragraph, that the action was probably at first designed to furnish redress against wrongful incarceration in the colloquial sense, but that it has long outgrown these simple beginnings. [143] The elements of the modern tort of false imprisonment require proof by the plaintiff of a restraint imposed by the defendant which amounts to imprisonment. Upon the proof of such imprisonment, the defendant, to escape liability, needs to establish legal justification. In Troubridge v Hardy (1955) 94 CLR 147 at 152 these principles were explained by Fullagar J in the following terms: The [appellant] did not sue, as he might also have done, for malicious prosecution, but for trespass to the person and false imprisonment. It was unnecessary for him to allege in his statement of claim, as in fact he did, that the [respondent] was "acting in his office as a member of the police force". The mere interference with the [appellant's] person and liberty constituted prima facie a grave infringement of the most elementary and important of all common law rights. It was for the [respondent] to justify, if he could, by reference to his office or otherwise. [144] The restraint imposed must be a complete deprivation of, or a restraint upon the plaintiff's liberty and it must be actual rather than potential … The restraint must be upon a person's liberty to come and go and must be against his or her will ... [145] Modern authority confirms that the factual essence of the cause of action is the placing of a "total restraint" on the plaintiff's movement. That restraint, however, need bear no similarity to what one would normally describe as imprisonment. It has been said that the law has moved on from any such limitation … (Citations omitted) 434 The tort is a species of the tort of trespass to the person and is accordingly concerned with direct and intentional forms of harm: Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 per Kirby J (in dissent) at [137]. Later, at [141], Kirby J said: [T]he principal function of the tort is to provide a remedy for "injury to liberty". It is not, as such, to signify fault on the part of the defendant. Damages are awarded to vindicate personal liberty, rather than as compensation for loss per se. (Citations omitted) 435 Once the imprisonment is established, it is for the respondent to prove that it was lawfully justified: Watson v Marshall and Cade [1971] HCA 33, (1971) 124 CLR 621 at 626; Ruddock v Taylor at [64], [140]; Darcy at [143]. In Darcy, Allsop P described the lawful justification for the detention as being of "the utmost importance", having regard to the importance of the liberty of the subject, at [2]. 436 The question of whether persons lawfully imprisoned may sue for false imprisonment by reason of their unlawful placement in a particular prison or in part of a prison has produced different judicial responses. In some cases, the circumstance that such a prisoner is already subject to total restraint has been thought to mean that any further restraint cannot constitute the form of restriction on movement required for the tort of unlawful imprisonment. However, there has been some recognition that the further imprisonment of a lawfully detained prisoner may constitute unlawful imprisonment. 437 Before referring to the Australian authorities, it is convenient to refer briefly to authorities in other jurisdictions. 438 In Cobbett v Grey (1850) 4 Exch 729; (1850) 154 ER 1409, which is cited in some of the modern authorities, it was held that a prisoner who had been compelled to go to a less salubrious part of the prison in which prisoners in a different category were required by law to be confined had been unlawfully imprisoned. 439 However, the modern view in the United Kingdom has been that the unlawful placement of a prisoner within a prison does not provide the basis for a claim of unlawful imprisonment. In R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58, the issue was whether a prisoner who had been segregated from other prisoners otherwise than pursuant to r 43 of the Prisons Rules (referred to earlier in these reasons) and therefore unlawfully could bring an action for false imprisonment. In a second appeal (Weldon v Home Office) heard at the same time as Ex parte Hague, Ralph Gibson LJ had held in the Court of Appeal [1992] 1 AC 58 at 139: There is no reason apparent to me why the nature of the tort [of false imprisonment], evolved by the common law for the protection of personal liberty, should be held to be such as to deny its availability to a convicted prisoner, whose residual liberty should, in my judgment, be protected so far as the law can properly achieve unless statute requires otherwise. 440 However, in the House of Lords, a different view was taken. Lord Bridge (with whom Lords Ackner, Goff and Lowry agreed) noted that s 12(1) of the Prison Act (UK) provided that a person sentenced to imprisonment "may be lawfully confined in any prison". His Lordship said that s 12(1) provided lawful authority for the restraint of the prisoner within the defined bounds of the prison by the governor of the prison and by any prison officer acting with the governor's authority, at 162. Lord Bridge used the term "restraint within … defined bounds" with a reference to the description of false imprisonment by Aitkin LJ in Meering v Graham-White Aviation Co Ltd (1919) 122 LT 44 at 54. Lord Bridge then continued at 162-3: Can the prisoner then complain that his legal rights are infringed by a restraint which confines him at any particular time within a particular part of the prison? It seems to me that the reality of prison life demands a negative answer to this question. Certainly in the ordinary closed prison the ordinary prisoner will at any time of day or night be in a particular part of the prison, not because that is where he chooses to be, but because that is where the prison regime requires him to be. He will be in his cell, in the part of the prison where he is required to work, in the exercise yard, eating meals, attending education classes or enjoying whatever recreation is permitted, or in the appointed place and at the appointed time and all in accordance with a more or less rigid regime to which he must conform. Thus the concept of the prisoner's "residual liberty" is a species of freedom of movement within the prison enjoyed as a legal right which the prison authorities cannot lawfully restrain seems to be quite illusory. The prisoner is at all times lawfully restrained within closely defined bounds and if he is kept in a segregated cell, at a time when, if the rules had not been misapplied, he would be in the company of other prisoners in the workshop, at the dinner table or elsewhere, this is not the deprivation of his liberty of movement, which is the essence of the tort of false imprisonment, it is the substitution of one form of restraint for another. 441 In his separate but concurring speech (with which Lords Ackner, Goff and Lowry also agreed), Lord Jauncey said that prisoners do not have a "residual liberty" vis a vis the Governor of the prison, which amounts to a right protectable in law, at 176. His Lordship held that the segregation of the prisoner altered the conditions under which he was detained but had not deprived him of any liberty which he had not already lost when confined, at 176. His Lordship distinguished Cobbett v Grey on the basis that it turned on provisions providing for the strict classification of prisoners and statutory requirements as to the places in which they could be confined. 442 However, all the speeches emphasised the importance of the lawful justification for the further "imprisonment" within the prison. It was accepted that there may be circumstances in which a prisoner subjected to a form of unauthorised confinement within a prison may be able to sue for false imprisonment. The prisoner locked in a shed by a fellow prisoner, and a prisoner subjected to restraint by prison officers who know they have no lawful authority for the restraint were given as examples: by Lord Bridge at 164; Lord Ackner at 166-7; and Lord Jauncey at 178. 443 Lord Jauncey also noted, at 178, that while the tort of false imprisonment requires total deprivation of liberty, the liberty in question is "such liberty as the individual presently enjoys and not deprivation of total liberty, namely, liberty which is otherwise totally restricted". 444 In R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58; [2006] 2 AC 148, the question was whether a long term psychiatric patient was lawfully held in segregation in a high security hospital, having regard to the terms of a non-binding Code of Practice. That question was answered in the affirmative by the majority with the result turning on a close analysis of the legislative regime, the status of the Code of Practice, and European Conventions. However, Lord Steyn, who with Lord Brown was in dissent, was critical of the decision in Ex parte Hague, saying that, even in respect of convicted prisoners, it should no longer be regarded as authoritative, at [42]. 445 Ex parte Hague was followed in Prison Officers Association v Iqbal [2009] EWCA Civ 1312; [2010] 2 All ER 663. 446 In New Zealand, the Court of Appeal held in Bennett v Superintendent, Rimutaka Prison [2001] NZCA 286; (2002) 1 NZLR 616 that habeas corpus was not available to prisoners seeking release from maximum security or segregation in isolation. The Court said, at 633, that "a change to the conditions on which an inmate is being detained either by segregation, reclassification or transfer to another institution does not create a new detention" for the purposes of the writ of habeas corpus. 447 In Canada, in Miller v The Queen (1985) 24 DLR (4th) 9, the Supreme Court of Canada considered whether a writ of habeas corpus could be issued to review the validity of the form of detention in which a prisoner was held. After an extensive review of the authorities, Le Dain J (in the judgment of the Court) held at 30-1: Confinement in a special handling unit, or in administrative segregation … is a form of detention that is distinct and separate from that imposed on the general inmate population. It involves a significant reduction in the residual liberty of the inmate. It is in fact a new detention of the inmate, purporting to rest on its own foundation of legal authority. It is that particular form of detention or deprivation of liberty which is the object of the challenge by habeas corpus. It is release from that form of detention that is sought. For the reasons indicated above, I can see no sound reason in principle, having to do with the nature and role of habeas corpus, why habeas corpus should not be available for that purpose. I do not say that habeas corpus should lie to challenge any and all conditions of confinement in a penitentiary or prison, including the loss of any privilege enjoyed by the general inmate population. But it should lie in my opinion to challenge the validity of a distinct form of confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution. 448 The reasoning in Miller v The Queen was followed in May v Ferndale Institution (2005) 261 DLR (4th) 541 in relation to the availability of habeas corpus to prisoners who complained of the lawfulness of their transfer from a minimum security institution to a medium security gaol. 449 In Australia, issues relating to the availability of habeas corpus and false imprisonment in relation to the unlawful placement of a prisoner within a prison have arisen in a number of contexts. It is not necessary to refer to them all. 450 In Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622, 50 inmates of New South Wales prisons brought proceedings for relief designed to ensure that they would have access to condoms while in prison. Sheller JA, in the judgment of the Court of Appeal in NSW, referred to Ex parte Hague, to Miller v The Queen and to other authorities but concluded that it was unnecessary for the resolution of the prisoners' claim to consider whether a prisoner enjoys a right of "residual liberty" vis a vis the State and whether the writ of habeas corpus runs when a person is held illegally in a prison within a prison, at 633. 451 In Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317, Hutley JA (with whom Moffitt P and Glass JA agreed) said at 328 in his discussion of the rights provided to prisoners under the Prisons Act 1952 (NSW) (Prisons Act (NSW)) that: Section 22, which authorises the segregation of prisoners under the conditions there specified, implies that prisoners will not be segregated, unless those conditions are fulfilled. Whether any segregation of a prisoner not authorised by section 22 implies rights to a civil remedy sounding in damages does not arise in this case, because we are of the opinion there was in fact no segregation. 452 In Sleiman v Commissioner of Corrective Services [2009] NSWSC 304, Adams J considered whether a grant of leave under to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to amend proceedings in which the plaintiff impugned the validity of his placement in the high risk management unit (HRMU) at the Goulbourn Prison. His Honour reviewed several of the authorities referred to above, and others. These included the unreported judgment of Collins v Downs (NSWSC 14 December 1982) in which Roden J considered an application brought by the Commissioner for Corrective Services and others to strike out a statement of claim made by a prisoner who claimed to have been unlawfully detained in segregation in Goulbourn gaol in April and June 1979. The prisoner had alleged that that form of detention was not authorised by s 22 of the Prisons Act (NSW), which authorised the segregation of prisoners when certain conditions were filled. Adams J noted that Roden J had rejected the contention that, once a person is lawfully imprisoned, nothing his gaoler does with him during the authorised term of that imprisonment can constitute a trespass or false imprisonment. Roden J had concluded that "there is a right of action for false imprisonment available to a convicted prisoner if, during the term of the sentence imposed upon him when his imprisonment would otherwise be lawful, he is wrongly subjected to imprisonment of a nature or in a place not authorised". 453 In Sleiman, in granting the plaintiff leave, Adams J concluded: [60] So far as prisons are concerned, the Parliament has instituted a structure of laws to govern the responsibilities of those to whom is delegated the custodianship of prisoners of the State. They are given great power and considerable freedom of action. But it is not untrammelled. It is self evident that the isolation of a person from communication with others is a severe and possibly dangerous step. It must be done with considerable care and only when it is truly necessary. It cannot be doubted that for these reasons the Parliament has made specific provision in the Act dealing with the exercise of this power. This demonstrates, amongst other things, that segregated custody is regarded by the Parliament as an exceptional form of custody and requires a unique system of implementation and control, in particular by necessitating a report to the Minister, regular reviews and giving the prisoner the right to apply to the Review Council for a review. In virtually every other aspect of managing a prisoner's custody the Commissioner has almost unfettered control and authority (albeit subject to various forms of supervision) except where the prisoner is to be segregated. [61] Having regard to the exceptional character of segregated custody so far as the well being of the prisoner is concerned and the unique regime instituted by the Parliament as a safeguard, it is obvious that compliance with its requirements is no mere matter of legal technicality but of fundamental importance. To place a prisoner in segregation without such compliance and set at nought the safeguards of the Act is a serious departure from the law. [62] This case is about what the law will do to require obedience to and redress departures from the obligations it imposes. It has nothing to do with the personal merits, or lack of them for that matter, of the prisoner. The law is blind to such considerations. The law will be enforced, not because of what is owed to the prisoner, but because of what it owes itself and the community it serves. 454 In State of New South Wales v TD [2013] NSWCA 32; (2013) 83 NSWLR 566, the Court of Appeal in NSW (sitting as a Court of five) considered an appeal against an award of damages for false imprisonment to an offender who, by reason of chronic mental illness, had been made subject to a limiting term pursuant to the Mental Health (Criminal Procedure) Act 1990 (NSW). Part of limiting term included an order that the plaintiff be detained at a hospital. Instead, she was held for a time in a prison hospital which had not been gazetted as a hospital. The State argued that the plaintiff, having lost her entitlement to liberty at the relevant time, could complain only about the place in which she was detained. It submitted that that was a question as to the conditions of detention, a matter not going to the lawfulness or unlawfulness of the detention itself, for the purpose of the tort of false imprisonment. 455 All members of the Court held that the tort of false imprisonment was established, essentially for the reason that an order of a court entitling the State to deprive a person of his or her liberty does not justify detention in any place the State, or its relevant officers, deems appropriate, desirable or convenient, and that the lawfulness of the detention depends upon compliance with the terms of the order bringing it about - see Basten JA at [54]. 456 Bathurst CJ regarded Ex Parte Hague as consistent with the Court's conclusion as the effect of s 12(1) of the Prison Act (UK) under consideration in that case was, like s 27 of the Mental Health (Criminal Procedure) Act, a statutory requirement as to where prisoners should be confined, at [5]. 457 Basten JA referred to Ex Parte Hague, Cobbett v Grey and to the judgment of Roden J in Collins v Downs and said at [61]: … To be imprisoned in the wrong part of a prison, where there is strict classification, according to law, is a false imprisonment for which damages may be awarded. There is nothing in Hague which throws doubt upon that distinction: on the contrary, it was upheld. 458 In SU v The Commonwealth [2016] NSWSC 8, the question was whether Indonesian nationals who had been arrested unlawfully and held in detention were entitled to damages for unlawful imprisonment for the period continuing from their arrest until the time that the detention became lawful (pursuant to a court order). By reason of s 189 of the Migration Act 1958 (Cth), the plaintiffs could have been held lawfully in immigration detention during the same period. Hamill J concluded: [47] What is clear is that the incarceration of the plaintiffs in the cells at the Sydney Police Centre was a direct result of the decision to (unlawfully) arrest them. It is not to the point that a police station is one of the places where a person might lawfully be held in immigration detention pursuant to s 5 of the Migration Act. The plaintiffs were not detained in the cells at the Sydney Police Centre as a result of being in immigration detention. They were there to be arrested, charged and dealt with as remand prisoners. In this respect, the legal nature of their detention was different. One of the residual liberties that the plaintiffs enjoyed was the right to be dealt with according to the law. This included the right not to be arrested contrary to the provisions in s 3W. Nothing in the Migration Act alters the requirements for a lawful arrest. [48] Accordingly, they were wrongly imprisoned and there will be a judgment for each of the plaintiffs. 459 These authorities indicate the need for close attention to the statutory regime and to the term of the order for detention.
Limits on the authorised detention of the applicant 460 When imposing the sentence of detention on the applicant on 23 August 2011, Martin CJ was exercising the power vested in the Supreme Court by s 82 of the YJ Act, that is, the power to order that a youth "be detained in a detention centre". The Warrant of Commitment set out earlier in these reasons, required that the applicant be kept at Don Dale. It did not contain any further specificity as to the place or conditions of the applicant's detention. 461 As noted earlier, the YJ Act does not, with limited exceptions, contain provisions concerning the placement of youths sentenced to detention. However, the implication that the YJ Act requires that the detention which it authorises be detention in accordance with the provisions of the Act itself is strong. The very fact that the provisions concerning the imposition of sentences of detention and the provisions concerning the management and operation of detention centres are contained in the one enactment is by itself an indication that this is so. 462 The provisions of ss 149 and 150 are confirmatory that that is so. Section 149(1) provides: (1) A youth must not be admitted to a detention centre except in accordance with this Act. 463 Section 150 provides: 150 Explanation of rights and responsibilities (1) As soon as practicable after a youth is admitted to a detention centre, he or she must be given an explanation of the rules of the centre and his or her rights and responsibilities as a detainee. (2) The explanation must be given in a language and manner the youth is likely to understand, having regard to the youth's age, maturity, cultural background and English language skills. (3) Any action taken is not unlawful only because of a failure to comply with this section. (4) For subsection (1), an explanation of the rights and responsibilities of a detainee must include: (a) information about the consequences of breaching the rules of the detention centre; and (b) information about the procedure for making a complaint. (Emphasis added) 464 Although s 149(1) is seemingly directed to the admission of a youth to a detention centre, it is implicit that a youth, once admitted, is also to be detained in accordance with the terms of the YJ Act. 465 Section 150 is an explicit recognition that a detainee may have rights, as well as responsibilities, as a detainee.
Conclusion: the applicant was falsely imprisoned 466 Detention in isolation is a particular form of detention involving the imposition on detainees sentenced to detention in accordance with the terms of the YJ Act of an additional form of restraint. The very nature of this form of detention serves to confirm that that is so. The YJ Act authorises that more stringent form of detention only in the limited circumstances to which s 153(5) refers. 467 Unless placed in the BMU, the applicant did have some freedom of movement within Don Dale, some ability to interact with other detainees, and some ability to participate in the activities within Don Dale, albeit subject to the regimes and routines involved in "ordinary" detention. Whether this be characterised as a "residual liberty" seems immaterial because the applicant was entitled, at all times, to be dealt with in accordance with the law. That was a "right" given to him by the YJ Act. In particular, he could not be lawfully restrained within Don Dale other than in circumstances authorised by the YJ Act. 468 When the applicant was placed in the BMU, he became subject to the additional restraint and, on my findings, that additional restraint in the period between 2-9 January 2012 was unauthorised. 469 It may be true, as Lord Bridge said in Ex parte Hague, that detention in segregation is the substitution of one form of detention for another, but in the circumstances of this case it is the substitution of detention of a more stringent kind which is permitted by the YJ Act in only limited circumstances. Absent those circumstances, the applicant's detention in isolation lacked the authority of the YJ Act. The reality of the different, and more stringent detention cannot be ignored. 470 In these circumstances, I consider the approach adopted by Roden J in Collins v Downs, by Adams J in Sleiman, and by Basten JA in TD, and for that matter the reasoning of Le Dain J in Miller v The Queen, as set out above, to be more in keeping with principle than the approach adopted in Ex parte Hague. In particular, it is consistent with the underlying principle that "[t]he right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes" (emphasis added): Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 at 292 (Mason and Brennan JJ). At least with respect to the forms of detention authorised by law, I respectfully agree with the approach suggested by Professor Trindade in the article to which reference was made earlier: The decisions of the House of Lords in Hague and Weldon that prisoners do not have a residual liberty vis-a-vis the prison authorities and that intolerable conditions in a prison do not render an otherwise lawful imprisonment unlawful thereby providing the prisoner with a potential action for false imprisonment should not, and are unlikely to, be followed by Australian courts. The decisions are based upon a strained reading of the words "may be lawfully confined in any prison" to mean "may be confined in any prison and whatever way the confinement takes place will be lawful". Such a reading is not defensible and is contrary to current notions of personal liberty, freedom of movement and equality prevalent in Australia. (Citation omitted) 471 Accordingly, I conclude that the unauthorised keeping of the applicant in isolation between 2 and 9 January 2012 constituted a form of false imprisonment which sounds in damages. 472 This conclusion can be reached more confidently because the respondents did not refer in their submissions to any of the authorities mentioned above, did not make any submissions directed to the underlying principles, and did not make any submission to the effect that the unlawful keeping of the applicant in isolation could not constitute unlawful imprisonment. In fact, they did not make any submissions on this particular issue at all. 473 I will defer for the time being the assessment of the damages to which the applicant is entitled for the unlawful imprisonment.
The claims concerning the use of spit hoods 474 The applicant's pleaded case is that he had been placed in a spit hood by Corrections Officers on three occasions while he was at DCC with the first use occurring on an occasion when he was taken to the Medical Clinic. He pleaded that each of these placements was unlawful and constituted a battery or an assault. He pleaded in the alternative that the use of the spit hoods on each occasion constituted a breach of the Territory's duty of care, and had caused him "harm, including, discomfort, difficulty breathing and, on the first occasion, mental harm arising from that physical harm". He sought damages for the battery, assault and the harm caused by the breach of duty of care. 475 The respondents tendered a spit hood, which Mr Bonson also referred to as a "transport hood". It was not an exact replica of the spit hoods used on the applicant but similar to them. It comprises sections of soft cotton cloth and mesh fabric, so located that the cloth will cover the mouth, and the mesh will cover the eyes. The applicant said that he had not had a clear look at the spit hoods used on him, but thought that the mesh fabric in those spit hoods was the same as that in the tendered item. 476 Although the 6SC included a plea that "a spit hood was not approved as a restraint", the applicant did not adduce any evidence or make any submissions directed to establishing that proposition. That may have been because "transport hoods" were items of "approved miscellaneous equipment" in the Directive "Use of Restraints" issued by the Director on 14 November 2008. As will be seen, the applicant's submissions focused instead on the term "reasonable physical force and restraint" in s 62(3) of the Prisons Act. 477 Apart from the plea that a spit hood was not an approved restraint, the applicant did not allege that the use of spit hoods could never be justified. His claim was that, in his particular circumstances, its application was not a reasonable use of force.
The applicant's evidence concerning the spit hoods 478 The applicant's evidence was to the following effect. He was to be taken to the Medical Clinic in DCC; the prison officers who were to take him had told him to go to the back of the cell and face the wall; when he did this, the officers had, without warning, put a spit hood on him; he had not understood what the officers were doing; he had "freaked out" and asked the officers what they were doing; with the spit hood on, he had not been able to see or to breathe properly; the spit hood remained in place for the whole of the period in which he had been escorted to the Medical Clinic, had seen the nurse, and had been escorted back to his cell; and that he had been angry because he was unable to speak to the nurse properly. The applicant said that he had worn the spit hood for "probably about four minutes". He did not learn that the item put over his head had the name "spit hood" until he returned to Don Dale. 479 In his cross-examination, the applicant said that he had thought, when the spit hood was first put on, that the officers were "going to take me to bash me or something". However, he also agreed that, when the Corrections Officers had come to his room, they had told him that he was being taken for a medical appointment and agreed that he had not been subjected previously to any violence from the Corrections Officers. 480 The applicant said that Corrections Officers had placed a spit hood on him for a second time when he was moved from Block C to Block B. On this occasion, they had warned him that they were about to put the spit hood on him. 481 The applicant said that the Corrections Officers used a spit hood on a third occasion when they removed him from his cell in Block B to Reception for his return to Don Dale on 2 January 2012. He had not been worried about being bashed on either the second or third occasions. The circumstances described by the applicant concerning the use of the spit hoods were no more detailed than just outlined.
The respondents' evidence 482 I am putting to one side for the moment the evidence which the applicant led from Mr Muir, and the respondents from Mr Conway, concerning the use of spit hoods. The respondents' witnesses who gave evidence with respect to the use of the spit hoods on the applicant were Mr Bonson, Mr Irwin and Mr Leibhardt (only Mr Irwin was involved in the placement of the spit hoods). I regarded Mr Bonson and Mr Irwin as reliable witnesses and, as previously noted, Mr Leibhardt was not cross-examined on his affidavit. 483 The DCC records show that the applicant was escorted to the Medical Clinic on two occasions while in DCC. The first was at 8.50 pm on 30 December 2011 when the applicant was held in Block C and the second on 31 December 2011 at 12.09 pm when the applicant was held in Block B. The respondents' oral evidence concerned the second of these occasions. The B Block Shift Journal and the "At Risk - Observation Sheet" both record both the occasion on 31 December but the attendance on 30 December is recorded only in the At Risk - Observation Sheet. In relation to the former, the records indicate that Mr Irwin and Mr Tareka escorted the applicant to the Medical Clinic and returned him to Cell 5 at 12.25 pm. 484 The nurse who attended the applicant at the Medical Clinic on 31 December recorded that he had been complaining of flu like symptoms and epigastric pain, that he had been "brought to clinic wearing rip proof shorts, handcuffed and spit screen netting over face", and that he had been "difficult to interview, giving problematic answers". Although unclear, this manner of expression suggests that the nurse was referring to the content of the applicant's answers, rather than communication difficulties. 485 Mr Irwin did not recall the use of a spit hood on 31 December 2011 but gave evidence of the practice which he said he adopted invariably when applying spit hoods. This was to the following effect: spit hoods were applied to prisoners who were known to spit at staff; the prisoner was told to stand at the rear of the cell, facing the wall with his hands by his side; two officers then entered the cell with one taking hold of the prisoner's arms and the other coming from behind to apply the spit hood; a warning was not given because doing so would give the prisoner the opportunity to turn to spit; the prisoner was handcuffed and the escort to the destination commenced; and prisoners were told that the spit hood was being used for the safety of the prison officers because of the previous occurrences of the prisoner spitting. Mr Irwin said that neither spit hoods nor handcuffs were applied as a punishment. 486 As is apparent, there was relatively little difference between the description given by the applicant, on the one hand, and by Mr Irwin of his usual practice, on the other. Having regard to my reservations concerning the reliability of the applicant's evidence, I am satisfied that the spit hoods were applied to the applicant in accordance with the practice described by Mr Irwin. 487 In cross-examination, Mr Irwin said that he believed that the applicant's history of spitting was one of the reasons that a spit hood had been applied, that he believed that the applicant had spat on prisoner officer Deane a few days earlier in Don Dale, and that this had been passed on by word of mouth. However, he did not have an actual recollection that that was so. 488 Mr Irwin said that the Medical Clinic was approximately 100-120 m from the applicant's cell Mr Conway timed a slow walk along the same path as taking about two minutes.
Did the applicant have a history of spitting? 489 Earlier, I referred to the report of YJO Clancy that she had heard the applicant and Mr Lawrie "make sounds like they were trying to draw spit through their throats", which it prompted her and other YJOs to leave before they had a chance to do so. However, there is no evidence that the prisoner officers at DCC had any knowledge of this incident so that it could have influenced their thinking. 490 There is, however, evidence of the applicant spitting at Corrections Officers on the afternoon of 28 December 2011, shortly before his transfer to DCC. This followed an incident to which I have referred earlier in these reasons. About 2.10 pm on 28 December, the applicant and Mr McLean were out of Cell 4 in the exercise yard and security lounge in the BMU. They took turns to have a shower and to make phone calls. However, Mr McLean refused to return to the cell and threatened to smash YJOs with a small table. The applicant also refused to return to the cell. A confrontation and standoff then occurred and the YJOs called for assistance by Corrections Officers. Mr Bonson, Mr Deane and Mr Leibhardt attended. They removed each of Mr McLean and the applicant to Cell 4. 491 In his evidence in chief, the applicant said that the prison officer had "tackled" him to the ground and had then handcuffed him. However, after being shown the CCTV footage in cross-examination, he agreed that he had not been tackled to the ground or handcuffed. I considered that the applicant's account of being tackled and handcuffed was one instance of his embellishment of an incident. 492 The IOMS contains a report of Mr Deane as follows: Whilst removing Don Dale Juvenile Detainee M Campbell #360747 to the Management cell, the cell door was opened by a Don Dale staff member and prisoner Campbell was placed into holding cell #4. As the cell door was being closed, Don Dale Juvenile Detainee R McLean #408784 spat at me through the cell door and hit my chest area and face. 493 The IOMS also contains a report from Mr Leibhardt in similar terms. In his affidavit, Mr Leibhardt deposed: As we were securing Marley in the cell, Officer Deane was spat on, hitting him on the chest area and on the side of his face. I saw and heard Officer Deane get spat on and recall Officer Deane saying words to the effect of "he's just spat all over me". 494 Mr Leibhardt recorded in his IOMS report that he had informed Mr Bonson and other Corrections Officers of what had transpired. 495 On 5 January 2012, Mr Deane provided another report entered in the IOMS in which he said that, having viewed the video footage of the incident, he had identified that it was the applicant, and not Mr McLean, who was the detainee who had spat on him. 496 As noted, in the incident report which he prepared on the morning of the following day, Mr Leibhardt had also attributed the spitting to Mr McLean. However, he had reviewed the CCTV footage in preparing for the proceeding and had identified that it was in fact the applicant who had spat on Officer Deane. 497 Mr Bonson did not witness the spitting incident but confirmed that he had been told at the time that one of the detainees had spat at Mr Deane. He also said that after the applicant and Mr McLean had been returned to Cell 4, a decision had been made, in accordance with the practice commonly adopted at DCC, to search the cells for contraband and to assess them for damage. He said that when they entered the BMU: [T]he detainees were shouting threats that they would harm us, including threats to spit on us. Detainees were spitting on the mesh of the doors to their BMU cells. I could not say which specific detainees threatened to spit or spat on the mesh, as I was not familiar with the detainees. 498 No challenge was made to this evidence in Mr Bonson's cross-examination. In fact his cross-examination comprised only one question. 499 The respondents did not call Mr Deane to give evidence. Although Mr Deane had initially provided an affidavit, at the respondent's request, in anticipation of giving evidence in the proceeding, Ms Pikoulos deposed that, subsequently, he had declined to cooperate with them and they had not persisted with attempts to lead evidence from him. Counsel for the applicant submitted that a Jones v Dunkel inference should be drawn from the absence of Mr Deane from the witness box. Having regard to the content of Ms Pikoulos' affidavit, I do not consider that it would be appropriate to draw that inference. 500 The respondents also tendered the CCTV footage of the incident on 28 December 2011. It does show an action of the applicant consistent with him spitting at a Corrections Officer after having been inserted into the cell. When cross-examined with reference to the CCTV footage, the applicant denied that he had spat at the Corrections Officer, and said that instead it showed him turning around and swearing at the officer. He agreed that the CCTV footage showed him, immediately afterwards, celebrating with Mr McLean but denied that they had been celebrating the fact that he had just spat on a prison officer. 501 Despite the applicant's denials, I accept the respondents' evidence about the applicant's spitting on 28 December 2011. I reject as false the applicant's evidence that he had only been swearing at the officers. His conduct was observed by two officers who made contemporaneous reports about it, although incorrectly attributing the conduct to Mr McLean. Mr Bonson noted more general spitting. The CCTV footage, including the applicant's celebratory action, is corroborative of the Corrections Officers' accounts. I note again that Mr Leibhardt was not required for cross-examination. 502 Accordingly, I am satisfied that the applicant did spit at Mr Deane in the incident on 28 December 2011 and that the action of spitting was reported by the prison officers amongst themselves. 503 Counsel for the applicant emphasised that a spit hood had not been used on the applicant in the transfer from Don Dale to DCC nor in any of his interactions with the Corrections Officers between the time of that transfer and its first use, which counsel thought had been on 31 December 2011. The inference was that this was an indication that use of a spit hood had not then been regarded as necessary. I decline to draw that inference. The evidence about the procedure adopted in relation to the transfer to the DCC is meagre and the latter is explicable because the prison officers' interactions with the applicant before the first use of a spit hood had seemingly not involved physical contact with, or proximity to, him or his escort from one location to another. 504 Also pertinent to the prison officers' apprehensions concerning the applicant spitting is the report of the Acting Chief Prison Officer at DCC to Mr Yaxley in an email shortly after the applicant's transfer from C Block to B Block on the morning of 31 December 2011 that he had been "sighted spitting in his cell". It is a reasonable inference that this conduct of the applicant had occurred and that it had been reported to the Acting Chief Prison Officer by Corrections Officers. It is, however, not clear when those incidents of spitting had occurred in relation to the first and second usages of a spit hood. 505 Of course the previous incidents of spitting are relevant only if known to the Correction Officers applying the spit hoods or to those directing their use. There is no express evidence to that effect. I infer, however, that the Corrections Officers did have that knowledge, noting again that the spitting on Corrections Officers on 28 December 2011 had been reported amongst themselves. It is also the kind of conduct about which the Correction Officers were likely to be apprehensive. In all these circumstances, I am satisfied that the Corrections Officers did have a reasonable basis for being apprehensive that the applicant would spit at them when being escorted within the DCC.
Findings concerning the use of spit hoods 506 The respondents submitted that there was evident confusion in the applicant's evidence concerning the use of the spit hoods and inconsistency in the accounts he has given in relation to that use. They submitted that, whereas the applicant had pleaded, and testified in accordance with that pleading, that his transfer from C Block to B Block was the second occasion on which a spit hood had been used, the evidence shows that that transfer occurred at 8.15 am on 31 December 2012, that is, before the applicant was taken to the Medical Clinic just after midday that same day, with the consequence that the latter must have been the second use of a spit hood. However, in making that submission, the respondents overlooked that the applicant had been taken to the Medical Clinic at 8.50 pm the previous evening. That could well have been the occasion of the escort to the Medical Clinic to which the applicant was referring and it was the respondents who had assumed wrongly that he was referring to the occasion on 31 December at 12.09 pm. This issue was not explored in the evidence and I am disinclined to draw an inference adverse to the applicant on that account alone. However, proceeding on that basis, there are still difficulties in the applicant's account because he testified to wearing a spit hood to the Medical Clinic only once. If the first occasion was at 8.50 pm on 30 December, his wearing of a spit hood to the Medical Clinic at 12 pm on 31 December must have been a second occasion (the nurse recorded him wearing a spit hood in the attendance on 31 December). Again, if the applicant's evidence about his wearing of a spit hood on his transfer from C Block to B Block and again on 2 January be correct, that would mean that there were four occasions in all in which he wore a spit hood, but the applicant pleaded, and led evidence about, three occasions only. 507 These inconsistencies could be attributed to innocent slips in memory. However, that does not seem plausible given the significance which the applicant now seeks to attach to the use of spit hoods, in particular, as being a cause of Post-Traumatic Stress Disorder. 508 There are, moreover, some other inconsistencies. Although the applicant thought that he had been taken to the Medical Clinic for an examination of his hand, the At Risk - Observation Sheet suggests that it was because he had "spewed up some blood". The evidence does confirm that the applicant was seen by a nurse in relation to his hand but that was on 1 and 2 January 2012, and on each of those occasions the nurse attended on the applicant in his cell rather than the applicant going to the Medical Clinic. 509 Mr Ralph said (and I accept) that the applicant had told him that he had been placed in a spit hood due to another inmate reporting that he had spat upon him. He also said that the applicant had denied to him that he had ever spat on a Corrections Officer. On my findings, the second claim is incorrect and the applicant must have known when speaking to Mr Ralph that that was so. There is no evidence at all to support the applicant's first statement, and counsel for the applicant did not seek to cross-examine any Corrections Officer to that effect. The applicant said in evidence that he had not been told that the purpose of the spit hood was to prevent him spitting and that he had not known until he returned to Don Dale that the item was called a "spit hood". However, Mr Ralph recorded (I find accurately) that the applicant had told him that Corrections Officers had told him "at the time" that the use of spit hoods was now "routine" practice. 510 In addition, the evidence of Mr Bonson and Mr Conway (which I accept) about the ease with which one can both see and breathe through the mesh fabric makes me think that the applicant exaggerated his evidence about the difficulty in doing so. I am not willing to accept that the applicant had difficulty breathing and any discomfort must have been no more than momentary. 511 While keeping in mind that some of these matters may be attributable to innocent slips of memory, they, and my assessment of the applicant's reliability more generally, raise real concerns about the credibility of his evidence with respect to spit hoods. 512 Despite my reservations, I am willing to find that the first use of a spit hood was at approximately 8.46-8.50 pm on 30 December. I think it likely, and so find, that that usage was in accordance with the practice described by Mr Irwin, even if Mr Irwin was not involved in that usage. I accept that the subsequent uses of the spit hood to which the applicant referred did occur and that this was in the manner described by the applicant and Mr Irwin (although the applicant said that after the first use of the spit hood, he had been forewarned that one was to be applied). I also accept that the applicant found the use of spit hoods on the first occasion unpleasant and that it caused him some apprehension about what was to happen to him. This would have been especially so if the applicant had not known where he was to be taken and did not know immediately why the spit hood had been placed over his head. However, I think it likely, and so find, that he was told reasonably early on each occasion where he was being taken, and the purpose of the spit hood. My assessment is that the applicant found the use of spit hoods to be unpleasant and humiliating. This has led him to enlarge the experience in his mind, which has been manifested in his evidence concerning the difficulty in breathing and concerning his fright. That is to say, I consider that the applicant's evidence about his experience with spit hoods, and their effects, was exaggerated.
Battery and assault: principles 513 Battery is the direct act of a defendant, whether intentional or reckless, which makes, or has the effect of causing, contact with the body of another: Marion's Case at 311 (McHugh J). Assault, on the other hand, is comprised of a threat of intentional contact causing the other person to apprehend, reasonably, that conduct is to be made with their body. 514 In Collins v Wilcock [1984] 1 WLR 1172, Goff LJ said at 1177-8: The fundamental principle, plain and incontestable, is that every person's body is inviolate. It has long been established that any touching of another person, however, slight, may amount to a battery. So Holt CJ held in Cole v Turner [1904] 6 Mod. 147 that "the least touching of another in anger is a battery". The breadth of the principle reflects the fundamental nature of the interest so protected. As Blackstone wrote in his Commentaries, 17th ed. (1830), vol. 3 p 120: The law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it: every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner. The effect is that everybody is protected not only against physical injury but against any form of physical molestation … of course, a police officer may subject another to restraint when he lawfully exercises his power of arrest; and he has other statutory powers … But, putting such cases aside, police officers have for present purposes no greater rights than ordinary citizens. It follows that, subject to such cases, physical contact by a police officer with another person may be unlawful as a battery, just as it might be if he was an ordinary member of the public. 515 It was not in issue that the conduct of the Corrections Officers in placing the spit hoods over the applicant's head constituted an intentional application of physical force sufficient for the tort of battery. 516 The issue between the parties was whether there had been a lawful justification for that application of force. This devolved to a factual issue: had it been reasonable in the circumstances for the Corrections Officers to place the spit hoods on the applicant? 517 The parties' submissions paid relatively little attention to the legislative authority for the use of the spit hood on the applicant. I have previously found that the management of the applicant at DCC was governed by the Prisons Act and not by the YJ Act. Section 6(2) of the Prisons Act has been set out earlier, at [406]. 518 In relation to the powers of prison officers, s 9 provides: Every officer while acting as such is, because of his or her appointment, taken to be a police officer and to have the powers and privileges of a police officer for performing his or her duties as an officer. 519 Section 62 is an express statutory authority for the application of physical force: 62 Firearms etc. may be used (1) … (2) An officer may possess and use in a prison or police prison such firearms, weapons and articles of restraint as are approved by the Director as necessary to maintain the security and good order of a prisoner or a prison or police prison. (3) An officer may use such reasonable physical force and restraint against a prisoner as he or she considers necessary to maintain the security and good order of a prisoner or a prison or police prison. 520 The common law powers of a police officer vested in a prison officer by s 9 include the power to take reasonable steps to ensure that a prisoner does not injure himself or others and does not commit any further crimes, including the assault or battery of another: Woodley v Boyd [2001] NSWCA 35 per Heydon JA at [37], citing Lindley v Rutter [1981] QB 128 at 134 in which Donaldson LJ said: It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime such as, for example, malicious damage to property. This list is not exhaustive, but it is sufficient for present purposes. What measures are reasonable in the discharge of this duty will depend upon the likelihood that the particular prisoner will do any of these things unless prevented. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be justified is the adoption of any particular measures without regard to all the circumstances of the particular case. 521 Heydon JA went on to note that "in evaluating the police conduct, the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight".
The expert evidence regarding spit hoods 522 There was a difference between the experts, Mr Muir and Mr Conway, concerning the reasonableness of the use of the spit hoods on the applicant in the DCC. 523 Mr Conway worked in juvenile detention centres in New South Wales for the 30 years between 1988 and 2018. After commencing as a youth worker, he had positions as Case Manager, Coordinator, Trainer and Shift Supervisor. Mr Conway has undertaken, and delivered, numerous training courses relating to aspects of youth detention, including courses directed to the management of difficult behaviours and protective tactics. I was satisfied that Mr Conway has considerable practical expertise about these matters. 524 It became obvious during Mr Conway's evidence that he has had relatively little experience as a witness. Nevertheless, I considered that Mr Conway gave honest and practically-based evidence. As will be seen, I have accepted his opinions. 525 Mr Conway said that the reasonableness of the use of force or restraints should be considered having regard to a number of matters including: (a) the alternatives available, such as negotiation with the detainee, because force should be used only as a last resort; (b) the proportionality of the level of force to the behaviour of the detainee and the risks associated with that behaviour; (c) the broader context in which the behaviour is occurring; (d) the risks to the safety and security of all involved (including staff and detainees) with the relevant considerations including; (i) the seriousness of the risk; (ii) the likelihood of harm resulting from the behaviour; (iii) the risk to the detainees and/or staff if force is used; (iv) the risk to the detainees and staff if force is not used; (v) the potential for the incident to escalate to involve a broader population of detainees; and (vi) the duty of care owed to both staff and detainees; (e) the urgency with which the action is required; (f) the knowledge of the responder of, in particular, the behavioural history of the detainee and other matters personal to the detainee; and (g) the force permitted under the applicable legislation or policy. 526 Mr Conway said that the applicant's past behaviour meant that it was appropriate for him to be regarded as "a potentially dangerous detainee". He considered that, having regard to the applicant's behaviour in the Boxing Day disturbance, his non-compliance with the directions of YJOs on 28 December 2011 and his spitting on a prison officer on the same day, it was appropriate to assess, on 31 December 2011, that there was "a high risk" that he would spit on the prison officers escorting him to the Medical Clinic. He noted that the spitting by a detainee or prisoner on staff creates a risk of the staff member contracting a number of viral or bacterial infections including Hepatitis A, B or C, herpes or HIV. He had observed in his work experience the traumatic effect of spitting on staff members and the difficulties it can create for both them and their families (especially during the period of waiting for results of tests for the presence of infection). 527 Mr Conway considered that it had been appropriate for prison officers to consider ways by which the risk of the applicant's spitting on them could be averted and said that the options were: (a) issuing a direction to the applicant; (b) applying force to the applicant's head (I infer so as to cause him to bend forward); (c) the prison officers wearing Personal Protective Equipment (PPE); and (d) the use of an "escort mask" or spit hood of the kind in fact used. 528 Mr Conway discounted the first and second of these alternatives and said that it was appropriate for the third or fourth to be applied. He opined that, of these alternatives, it was appropriate to apply the spit hood to the applicant because: (a) the spit hood was made of cotton with a white fabric mesh over the face; (b) when trying the spit hood on himself, he could see and breathe through it without difficulty; (c) the spit hood was worn for a short period only; and (d) the spit hood was worn only within DCC. 529 The cross-examination of Mr Conway about these matters was limited. He confirmed that he had not been given information about how the spit hood had been put over the applicant's head on the first occasion, and agreed "that it is unreasonable to apply a spit hood from behind and without warning". I understood this opinion of Mr Conway to concern the manner in which spit hoods are placed on detainees generally. 530 Mr Conway did not give evidence about forms of PPE and it was not suggested in his cross-examination that PPE was practical. In particular, it was not suggested that use of full face helmets by the prison officers was appropriate. 531 Mr Muir concluded that, even before the Boxing Day disturbance, the applicant "was a young man who consistently challenged boundaries, was verbally aggressive at time to both staff and other detainees and had committed assaults on both groups". He critiqued Mr Conway's assessment of the applicant at the time of his transfer to DCC as "potentially a dangerous detainee", saying that the same "could be said of almost any detainee". Mr Muir also said that, "with the exception of the events around Boxing Day 2011, the overwhelming majority of [the applicant's behaviour] fell within the definition of [challenging behaviour]". 532 Mr Muir agreed with Mr Conway's opinion regarding the impact of detainees spitting on staff. He said at [7.3]-[7.4]: I agree with him that it does have a significant psychological impact on staff. Many staff expressed a view to me that [they] would rather be physically assaulted than spat upon. Mr Conway discusses the risk of contracting a disease through saliva and blood, however the advice to me from medical staff both in my own Department and from Justice Health NSW was that the risk of disease from being spat upon is exceptionally low. This does not mean that health and safety considerations can be ignored … In my opinion, the risk to staff is overwhelming psychological. 533 Nevertheless, Mr Muir opined that the use of spit hoods on the applicant by the DCC officers was not reasonable. He gave the following reasons: (a) spitting by detainees is common in detention environments; (b) on the first occasion, the spit hood was placed on the applicant without warning; (c) at least on the first occasion, no negotiation with the applicant had been attempted; (d) the view that the applicant had a history of spitting was not reasonable as the only prior incident of spitting had been on the afternoon of 28 December 2011; (e) all of the applicant's previous assaults on staff (including spitting) had been in circumstances in which force was being used; (f) there had been absence of proactive management of the applicant's behaviour; (g) the applicant probably presented no greater risk of spitting than any other detainee, which could have been managed by negotiation and use of other options; and (h) the fact that the applicant had been released from his cell in DCC in order to shower without it being thought necessary that spit hood was necessary evidenced that he could be successfully managed without the use of spit hoods. 534 On the basis of my findings, the matters assumed by Mr Muir for reasons (d), (e), (g) and (h) are not established or at least would have to be qualified. I also considered that Mr Muir's evidence tended to diminish the significance of the applicant's conduct in the Boxing Day disturbance and the potential danger to staff he presented until the circumstances were stabilised. His view that the applicant was potentially dangerous in the same way as any other detainee seemed to me to be an unrealistic appraisal. 535 In cross-examination, Mr Muir confirmed that he considered that the use of spit hoods had been unreasonable because the prison officer should have fitted themselves with PPE and attempted a negotiation with the applicant. He said that by PPE he meant a "full-faced helmet" as a minimum and initially said that a small shield could also have been used Mr Muir later acknowledged that he would not have deployed a shield in the circumstances. 536 I consider the following matters relevant to the assessment of the weight to be given to Mr Muir's opinions: (a) at least some of Mr Muir's evidence seemed directed to underlying systemic matters about use of spit hoods, rather than their use in the particular circumstances of the applicant. The applicant's legal representatives had not pressed the tender of significant portions of Mr Muir's reports on the grounds that they were irrelevant to the pleaded issues. These included portions in which Mr Muir had critiqued aspects of the youth detention systems in the Territory. I had the impression that some of that critique influenced the opinions Mr Muir expressed about the use of spit hoods; (b) Mr Muir had a tendency not to answer questions directly, with the consequence that he frequently had to be pressed to answer the question asked of him. I had the impression that Mr Muir was one of those witnesses who hears the topic in a question rather than the question itself and so, for the most part, did not think that he was being deliberately evasive. I did, however, consider that this tendency of Mr Muir evidenced a lack of precision in his thinking. There were also instances when I did think that Mr Muir did avoid answering a question directly because he perceived that the answer would undermine his opinions, or would indicate that they were not realistic. There were also times when I thought that he was being argumentative; (c) Mr Muir has never worked in an adult prison such as DCC; (d) while Mr Muir does have expertise in relation to youth detention, his experience has mostly been at the executive management level rather than as a "front line" worker. I accept, however, that his work history has included the scrutiny of the training provided to detention officers in New South Wales and, as indicated earlier, accept that he has acquired expertise by virtue of having had the responsibility of managing the juvenile detention system in that State; (e) Mr Muir seemed to assume that the statutory authority with respect to the application of spit hoods in the applicant's case derived from the YJ Act, whereas on my findings, it derived from the Prisons Act; and (f) Mr Muir was willing to give his opinions without knowing, and without making enquiry about, a number of matters, including matters which he acknowledged in cross-examination to be relevant. In particular, he gave his opinion about the use of full face helmets without knowing the number of people to whom they would have to be issued, that is, the number of people with whom the applicant may come into proximity on the way to and from the Medical Clinic, and the practicality of health practitioners conducting medical examinations while wearing such helmets. 537 Although asserting confidently that full face helmets should have been used, Mr Muir did not depose to having made any enquiry as to their availability at DCC. There was no evidence at all in the trial that such helmets were available at DCC in December 2011-January 2012. 538 For these reasons, I considered that the evidence of Mr Conway was more persuasive than that of Mr Muir. I prefer Mr Conway's evidence. 539 Ultimately, Mr Muir accepted that, if the applicant was at risk of spitting, protection required that either he be put in a spit hood or the staff, including the health practitioner, provided with appropriate PPE.
Conclusion on the claim of battery and assault 540 The use of the spit hoods did not constitute a battery if there was a lawful justification for that use. In my opinion, there was such a justification. The evidence referred to earlier supports the conclusion that the Corrections Officers were aware of the incidents of spitting involving the applicant. It is the case that, at the time, Mr Deane and Mr Leibhardt thought it was Mr McLean, and not the applicant, who had done the spitting. However, they had seen Mr McLean do that in the company of the applicant, and the applicant celebrating the spitting with Mr McLean. It could not be concluded that the use of the spit hood was baseless. 541 Given ordinary understandings about the effects of spitting and the evidence of Mr Conway and Mr Muir about those effects on prison and detention officers, it is understandable that the Corrections Officers sought to protect themselves against the risk of spitting. Their use of the very piece of equipment provided at DCC for that purpose was in my view both reasonable and justifiable. I do not accept the opinions of Mr Muir on this topic. 542 It follows that the claim of battery fails. The claim of assault fails for much the same reasons.
The claim in negligence 543 The applicant did not make any submissions concerning the claimed negligent infliction of damage by use of the spit hoods. It was accordingly unclear whether this claim is pursued. 544 In any event, the applicant's claim in negligence depends on him establishing that the use of the spit hoods caused him harm, as damage is the gist of the tort: Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 per Brennan J at [6]. The only harm the applicant alleges is that the spit hoods caused him "discomfort including difficulty [in] breathing" and, in respect of the first use of the spit hood, mental harm "arising from that physical harm". 545 On my findings, the applicant did not suffer physical harm. In my view, his claims of difficulty in breathing were exaggerated but in any event, any short term difficulty in breathing he experienced did not result in physical harm. The applicant did not adduce any medical evidence to that effect. As I will indicate later, I am not satisfied that the applicant has suffered any psychiatric injury arising from the use of the spit hoods.
The claims concerning the incidents on 29 May 2012 546 The next claim in chronological sequence arises from events on 29 May 2012, in which force was applied to the applicant in two separate incidents. 547 The applicant's pleading of these claims is: [99] On 29 May 2012, the applicant ran outside of the building at Don Dale, after being refused permission to have a shower. He was pursued by a guard who tackled him to the ground and injured his shoulder. [100] Later, on the same day after a fire alarm was activated: a. prison officers ordered the applicant to place his hands through the door of his cell and handcuffed him; b. a prison officer entered the applicant's cell and grabbed the applicant from behind around the neck causing the applicant discomfort and problems in breathing; c. officers took the applicant out into the yard and handcuffed the applicant's arm to a fence above shoulder height; and d. the applicant was left in that position for more than an hour and suffered discomfort and fatigue from being constrained in that manner. 548 As is apparent, the particular matter which is the subject of the first of these incidents (the "Tackling Incident") is the tackling of the applicant. This is confirmed by the later pleas. The matters which are the subject of [100] (the "Evacuation Incident") are of a more composite and prolonged kind. 549 The applicant alleges that the application of force by the detention officer in the Tackling Incident and by the prison officers in the Evacuation Incident was unlawful because each was: (i) excessive and not reasonably necessary; (ii) involved the placement of the applicant in a constrained and fatiguing position in breach of s 153(2) and s 153(3)(c) of the [YJ] Act; and, accordingly, constituted a battery. 550 The applicant alleges, secondly, that the pleaded actions of the detention officer and the prison officers respectively caused him to apprehend that the officers might make or cause physical contact with him and, accordingly, constituted an assault. 551 The applicant alleges, thirdly, that the actions of the officer in the Tackling Incident constituted a breach of the duty of care owed to him and that, by reason of the breach, he had suffered injury to his right shoulder. In the final submissions, counsel said that the applicant did not seek damages for the injury, only for "the trespass", by which I understood counsel to mean the alleged battery. 552 The applicant made his claims in respect of the Tackling Incident and Evacuation Incident against the Territory only. He did not allege a breach of duty of care in relation to the Evacuation Incident. 553 In addition to documentary evidence and CCTV footage, the Court had evidence about the events on 29 May 2012 from the applicant, Mr Edwards, Ms Auton, Mr Mangawai (each of whom is a YJO) and from Mr Hall and Mr Nicol (each of whom is a Corrections Officer). Mr Conway and Mr Muir also expressed opinions about the reasonableness of the use of force by the detention and prison officers.
The applicant's evidence concerning the Tackling Incident 554 The applicant's evidence in chief about the Tackling Incident on 29 May 2012 was to the following effect: when he returned to Don Dale from a Court attendance in relation to the charges arising from the Box Day disturbance, he asked to have a shower but was told by a YJO that he had to wait; this had made him angry; later that day, while he was in the dining room, Mr Lawrie had a fight with another detainee in the hallway leading to the BMU; a YJO had left the dining room to go to the courtyard; he and another detainee, Mr Richards, had left the dining room and moved to the basketball court and swimming pool area; they were chased by YJOs and one of them, Mr McAllan, had tackled Mr Richards to the ground; Mr Richards was then taken to the "isolation cells"; when Mr McAllan returned, he tackled the applicant to the ground ("he grabbed me by the arm and slammed me to the ground … when I was on the ground, he put my arm behind my back like a chicken [and it] felt like my [right] shoulder was going to pop out"); he had told "them" that it was hurting and that it was going to break his arm; one of the YJOs had told Mr McAllan to let him go because he would break the applicant's arm; and he had then been handcuffed and taken to the isolation cells. 555 In cross-examination, the applicant agreed that he had run out of the dining room to the courtyard area; that he had known when doing so that he was doing the wrong thing; that the staff were chasing him and telling him to come back; that he had disobeyed their directions; that he had known that in disobeying the directions he was doing the wrong thing; that the staff had asked Mr Richards to come with them to the BMU; that Mr Richards had refused; that Mr Richards was then taken to the ground and then removed to the BMU; and that he could not remember YJO Austin staying with him while Mr Richards was being removed, nor Mr Austin, and later Mr Edwards, trying to negotiate his movement to the BMU. The applicant denied that he had been lifted from a sitting position to his feet and insisted that he had been taken to the ground before being moved to the BMU. He also insisted that he had not struggled with the YJOs until after he had been taken to the ground.
The applicant's evidence concerning the Evacuation Incident 556 The applicant's evidence in chief about the Evacuation Incident was to the following effect: after he had been placed in the BMU, another detainee had sprayed the contents of a fire extinguisher about, generating a foam; the effect of the foam was that he had been unable to breathe, so he had used his shirt to cover his face and had sat down in the back corner of the isolation cell; Corrections Officers from DCC had come; they had told him to put his hands through the door hatch, handcuffed him, and then opened the door, walking him out of the cell as they did so; one of the Corrections Officers had then choked him, with the consequence that he "sort of like blacked out and hit the ground"; he and the other detainees were then taken to the fence next to the basketball court and handcuffed to it; his handcuff had been attached to the fence at about his eye height; he remained handcuffed to the fence for approximately 30 minutes; he had felt uncomfortable and his right arm had to started to feel "dead"; he was then taken back to "isolation cells"; the fire brigade had attended and there was "water everywhere" in his cell; and he had had to sleep that night in the damp conditions. 557 In cross-examination concerning the Evacuation Incident, the applicant said that he had not long been in the BMU before prison officers had come to get him and that a prison officer had put him in a headlock as he was being walked outside. Initially, the applicant demonstrated a movement of the prison officer putting his (the prison officer's) hand around his throat but said that it was just the prison officer's arm which had come across (and against) his throat. He said that the prison officer had been directly behind him when this occurred, that he had fallen to the ground but had been lifted up, taken to the fence and handcuffed to it. The applicant disagreed that he had been handcuffed to the fence at below eye level height; said that he had no memory of laughing and joking with other detainees while they were waiting; had no memory of YJOs, in particular YJO Auton, being present but said that the detainees had complained to the YJOs about being uncomfortable and had been told to "shut up".
Findings concerning the circumstances of the Tackling Incident 558 It is not necessary to review separately the evidence of the respondents' witnesses (Mr Edwards, Ms Auton and Mr Mangawai) regarding the Tackling Incident. I regarded each as giving honest and generally reliable evidence. There were some differences in their accounts but I did not think that surprising, given ordinary fallibility of human memory, the dynamic nature of the events which they were describing, the length of time which elapsed from 29 May 2012 until they gave their evidence, and the differing extents to which the witnesses had been involved in the Tackling Incident. For the most part, their accounts were consistent with the contemporaneous reports. They were also supported by the CCTV footage to the extent that it had recorded aspects of the incident. 559 My findings of fact are as follows. The detainees being held in the maximum security area of Don Dale on 29 May 2012 (of whom the applicant was one) commenced their evening meal in the dining room at approximately 6.30 pm under the supervision of Mr Standish and Ms Auton. This was later than usual. At 7.30 pm, the YJOs directed the detainees to return to their rooms. Some complied with the YJOs' instructions but some, including the applicant, were slow in doing so. Mr Standish called for assistance by other YJOs (by contacting Mr Edwards who was the Senior Officer on duty). Mr Edwards and Ms McLellan attended. Mr Edwards then commenced moving three detainees, Mr Lawrie, Nathan Campbell and Mr Vigona back to the BMU. As this group of detainees left the dining room, Mr Richards called out to them "where are you going, come back here" in a seeming attempt to encourage further non-compliance. A fight then broke out between Mr Lawrie and Mr Vigona in the hallway leading to the BMU and there was yelling which could be heard in the dining room where the applicant and Mr Richards remained. Mr Standish went to assist Mr Edwards. He and Mr Edwards acted to move Mr Lawrie and Mr Vigona separately to Cells 5 and 1 respectively in the BMU. At some stage in the movement of these three detainees to the BMU, Nathan Campbell turned off the lights in the dining room. 560 While the movement of the three detainees to the BMU was occurring, the applicant and Mr Richards remained in the dining room. Ms Auton was supervising them and was joined by YJO Austin. The applicant told Mr Austin that he wanted to have a shower. Instead of remaining at his table, Mr Richards pushed up the servery door and "hopped over the bench into the kitchen". He then emerged from the kitchen waving a large servery spoon in front of Ms Auton and in close proximity to her. Ms Auton took hold of the spoon as well and, after a short period of resistance, Mr Richards let it go. Mr Richards then started kicking forcibly a door exiting from the dining room. Ms Auton thought that the applicant had also engaged in this activity but that is not supported by the CCTV footage. Possibly, it happened out of the CCTV viewing range. 561 At about this time, Mr Mangawai entered the dining room from the courtyard. The applicant and Mr Richards took advantage of the door opening to push past Mr Mangawai and run out to the courtyard adjacent to the basketball court. Ms Auton, Mr Austin and Mr Mangawai followed them out. Mr Mangawai tried to calm the applicant and Mr Richards. So did Mr Austin. 562 When Mr Edwards and Mr Standish returned to the dining room after placing Mr Lawrie, Nathan Campbell and Mr Vigona in the BMU, they too went out to the courtyard. The applicant and Mr Richards were running about, evading the YJOs. The applicant said to Mr Richards "come on Ashley, come with me" in an apparent endeavour to persuade him not to be compliant with the YJOs. Both Mr Edwards and Mr Standish encouraged both detainees to stop this activity and to move to the BMU, but they did not comply. Eventually, the YJOs corralled the applicant and Mr Richards, who both sat down on a small concrete step adjacent to the basketball court. They continued to refuse to move to the BMU. Mr Standish warned the applicant that, if he did not comply with the direction to move to the BMU, he would be restrained. Mr Standish then took hold of Mr Richards by the arm using a technique which Mr Edwards described as "passive restraint". This involved gripping him on his shoulder and at his wrist. Mr Edwards and Mr Standish then escorted Mr Richards to the BMU. While placing Mr Richards in his cell, Mr Edwards could hear a disturbance in H Block but he did not divert to deal with that. 563 When Mr Edwards and Mr Standish returned to the courtyard after placing Mr Richards in the BMU, the applicant was still sitting on the concrete step. Other YJOs were present, being Mr Mangawai, Ms Auton, Mr Austin and Ms McLellan. They had been encouraging the applicant to cease his non-compliance. Mr Edwards and Mr Standish again encouraged the applicant to move voluntarily to the BMU but he did not comply. Standing either side of the applicant, they took hold of his wrists and shoulders and started to pick the applicant up. The applicant struggled with them, trying to get away. Mr Edwards and Mr Standish then used a technique in which they had been trained, referred to as "ground stabilising", and placed the applicant on the ground. The applicant continued to struggle while on the ground and was abusive to the YJOs. 564 There was no CCTV footage of the placement of the applicant on the ground. Mr Edwards had little memory of the actual movements of the applicant, Mr Standish and himself as the applicant was placed on the ground but said that he had maintained a firm grip on the applicant's arms and "would have went down with him". 565 In his report, Mr Standish said that he had done so "with force" but I understood this to be a reference to the fact of physical contact with the applicant rather than a description of the physical effort applied. That understanding is supported by the fact that Mr Edwards completed the "Use of Force Register" in accordance with the Don Dale protocols. Mr Muir said that any touching of a detainee is regarded as a use of force. 566 In any event, I am satisfied that, as the applicant was moved to the ground, Mr Edwards and Mr Standish followed him and there was something of a struggle. As the applicant continued to struggle, Mr Edwards directed Ms Auton to get handcuffs. While Ms Auton was away, Mr Edwards and Mr Standish continued their attempts to calm the applicant and to obtain his cooperation. When Ms Auton returned, the applicant was handcuffed with his arms behind his back. I am satisfied that use of handcuffs in the circumstances then pertaining was in accordance with the procedures in which the YJOs had been trained. 567 Once handcuffed, the applicant was moved to the BMU without further incident. 568 The respondents did not lead evidence from Mr Standish or Mr Austin. However, Ms Pikoulos deposed to the enquiries which she had made, without success, to locate them. It was not suggested that any inference adverse to the respondents should be drawn on account of the fact that evidence had not been led from them. 569 It is pertinent to keep in mind Mr Edwards' evidence, which I accept, that before 29 May 2012 he had had a good rapport with the applicant. There is no reason to suppose that he had any animus towards the applicant. 570 The evidence summarised above indicates that the applicant's account in his evidence in chief was incomplete in a number of material respects. In particular, the applicant made no reference to the repeated requests for his compliance with the YJO's directions and, other than in his cross-examination, to his continued struggling with the YJOs. His evidence tended to diminish his own contribution to the circumstances about which he complains. 571 Secondly, contrary to the applicant's evidence, Mr McAllan was not involved in the incident on 29 May 2012. Mr McAllan's evidence, which I accept, was that he did not work at Don Dale in 2011 and 2012 and it is plain that he was not on duty on 29 May 2012. Mr Edwards did not even know Mr McAllan. 572 Thirdly, contrary to the applicant's pleading and evidence, neither he nor Mr Richards were pursued and tackled to the ground (in the sense of a running tackle). Nor was the applicant "slammed" to the ground. Instead, after the two detainees had been cornered, Mr Richards was moved with little resistance to the BMU. The applicant was "placed" on the ground with Mr Edwards and Mr Standish endeavouring to do so in accordance with a standard technique. 573 However, I accept that there was a struggle during that placement and it may well have been the case that, in that struggle, and by reason of at least in part of the applicant's own bodily movements, there was a time when the applicant's arm was held in a relatively high position behind his back. The respondents' evidence satisfies me that it was not done deliberately and that the applicant's arm was not held in that position for a prolonged period. The applicant has not satisfied me that one YJO warned another to stop holding his arm in a strained position, in order to avoid breaking the applicant's arm. 574 I accept that in the Tackling Incident, the applicant did suffer a soft tissue injury to his right shoulder. The respondents admitted that that was so. I also accept that the injury caused some discomfort - the CCTV footage shows him rubbing the shoulder shortly after he was placed in the cell by Mr Edwards and Mr Standish. I consider the injury to have been a result of the struggle initiated by the applicant rather than the specific manoeuvre which the applicant alleged. 575 I add that the applicant's evidence about the injury to his shoulder was relatively brief. He said that at the time he was put in the cell by Mr Edwards and Mr Standish, his shoulder had been "sore"; that the soreness had persisted; that he had seen a doctor or nurse about the shoulder while he was still at Don Dale; and that he still has problems with the shoulder, feeling it when he leans or lies on it and when playing sport. 576 The Don Dale records show that the applicant was seen by a nurse on 15 June 2012 with a complaint of "bilateral shoulder pain". The nurse recorded the applicant telling her that his arms had been "pulled tightly behind his back and he was handcuffed". The nurse also recorded the applicant telling her that he had asked at the time to see a doctor but had been told that he could not see anyone for 72 hours. There was no corroborative evidence of that particular complaint. In any event, the nurse referred the applicant for review by a doctor at the Royal Darwin Hospital. 577 By reason of a mistake in the arrangements for the review, the applicant was not seen by a doctor until 23 June 2012. The doctor who saw the applicant at the Royal Darwin Hospital on that day recorded that the applicant had said that he had been having pain in both shoulders for a "few weeks"; that the pain had worsened after he had been handcuffed three weeks previously; and that while initially he had had pain in both shoulders, the left shoulder pain had completely resolved. The doctor prescribed Neurofen (which I understand to be an anti-inflammatory medication) and Panadol for one week and indicated that, if the applicant's symptoms did not improve, an ultrasound scan of his right shoulder be undertaken. It does not appear that this scan was ever undertaken. If it was, the results were not included in the tendered documents. 578 The doctor who examined the applicant on 8 July 2012 (the day before his transfer to ASYDC) recorded that the applicant had "no medical issues" and that he was not on any medication. There is no evidence of the applicant having had any further medical attention to his shoulder. 579 The applicant did not adduce any medical evidence in relation to the right shoulder. 580 In all these circumstances, I consider that the injury to the applicant's right should was not serious; it was in the nature of a soft tissue strain; and that its symptoms persisted for no more than 4-6 weeks.
Findings regarding the Evacuation Incident 581 The circumstances giving rise to the Evacuation Incident commenced even before the applicant had been placed in the BMU cell after the Tackling Incident. Nathan Campbell, who had been placed in the security lounge, smashed a panel adjacent to its rear exit door and, through the gap, was able to take a fire extinguisher from its bracket on the external wall and pull it inside. Mr Edwards heard some of the noise being caused by Nathan Campbell as he was placing the applicant in his BMU cell. There was also shouting from other detainees and other noise from H Block. He had also been alerted to the disturbance from Nathan Campbell while he was out at the basketball court attending to the applicant. 582 Nathan Campbell used the fire extinguisher to break the inspection window in the internal security lounge door and started to spray the extinguisher's contents (a powder) into the BMU. Amongst other things, this made it difficult for the YJOs and detainees to see and breathe. Mr Edwards was physically affected by the powder and he asked Ms Auton to seek assistance from Corrections Officers at DCC, as well as contacting Mr Yaxley. The first Corrections Officer on the scene asked for breathing apparatus. 583 The Corrections Officers, proceeding without breathing apparatus, then commenced removing the detainees from the BMU, taking them one by one out into the courtyard area and handcuffing them to the fence. Mr Hall stated that the detainees were handcuffed to the wire mesh fence in the basketball area because "there was nowhere else suitable". Although the evidence was non-specific, I infer that they were handcuffed to the fence by one arm only. 584 None of Mr Edwards, Ms Auton or Mr Mangawai witnessed the actual extraction of the detainees from the BMU cells but did see the detainees handcuffed to the fence. 585 Although there was CCTV footage of the extraction of some detainees, including the applicant, from the BMU cells and their movement to the exit door of the exercise yard, there was no footage of their movement from that door to the fence or of them while handcuffed to the fence. 586 The CCTV footage shows that five Corrections Officers were involved in the movement of the applicant although the fifth appears to have been an observer or a "reserve". It supports the applicant's account that he had put his hands through the inspection hatch in the door, that he had been handcuffed, the door was then opened and he was moved out of the cell. It also indicates that the applicant was subject to more restraint than the detainees who were evacuated before him. 587 Mr Hall said that the applicant had initially complied with the direction to put his hands out through the hatch so as to be handcuffed but, when the door opened, had appeared to pull back. Mr Nicol said that there had been some "erratic movement" by the applicant, but could not say what it was. He was, however, prepared to say that "something obviously taken place, in regards to a threat of some description". I was unable to see such a pulling back or "erratic movement" in the CCTV footage. Mr Hall agreed that Mr Nicol had restrained the applicant "over the shoulder" so as to put him off balance, in a manner in which they had been trained. Mr Hall also said that he recalled falling over with one detainee but could not say whether or not that had been the applicant. 588 Mr Nicol was on the applicant's left and behind him as they walked away from the cell. He had his right arm over the applicant's shoulder forcing him to walk in a slightly stooped position. Another officer was alongside the applicant on his right holding his right arm. Mr Hall was to the left of, and behind, Mr Nicol. A fourth officer walked closely behind this group. 589 Mr Hall described the applicant's resistance as more than that of the other detainees which was why he had been restrained differently from the other detainees. The quality of the CCTV footage is such that one cannot be certain but I was unable to see that the applicant had engaged in any resistance of his evacuation, and certainly no more strongly than those who had preceded him. Mr Hall denied that Mr Nicol had his arm around the applicant's throat, claiming instead that it went across his shoulder and down over his chest in the manner of seatbelt. Mr Hall denied that the applicant had been choked, and denied that he had fainted or collapsed to the ground when outside. He said, however, that the group had fallen to the ground with one detainee because they had tripped over their feet. He explained that it was not a faint but a trip, evidenced by the fact that the group had been able to get straight back up and to complete the movement to the fence. 590 Mr Nicol confirmed that he had applied the "seatbelt" hold to Mr Campbell and denied that his arm had been across the applicant's throat. He said that the applicant had been escorted without incident to the fence where he was handcuffed. He denied that he had fallen over with Mr Campbell and, at one stage, denied that he had fallen over with any of the detainees. He said, however, that there had been a "muddle of legs" as he was walking another detainee through a walkway and an "accidental fall to the ground" of that detainee and himself. On Mr Nicol's description of the room from which he had taken that detainee, I infer that the detainee to whom he was referring was Nathan Campbell. 591 Mr Nicol said that he had been trained in the use of the "seatbelt hold" and, in particular how to use it safely. He explained why he had used the hold: I would say there was some form of threat involved, be it physical or verbal, and it was used purely as a control method to ensure compliance on the removal from the BMU. 592 Mr Hall said that the Corrections Officers had worked with a sense of urgency, both because the detainees had been in the cells ever since the fire extinguisher was discharged with the difficulties in breathing it has caused and because the Corrections Officers themselves were having difficulty in breathing. Mr Nicol confirmed that the scene in the BMU was "fairly chaotic" and the Corrections Officers had been concerned to evacuate the detainees as quickly as possible. For this reason, they had moved the detainees out of the cells more quickly than would normally have been the case. 593 Both Mr Hall and Mr Nicol gave their evidence confidently. I had the impression that both had an appreciation of the issues in the trial insofar as it concerned their conduct and may have allowed that to affect their evidence. 594 In any event, their manner in evacuating the applicant, as depicted in the CCTV footage, seemed to reflect a "brooking no nonsense" attitude, and as indicated, was different from that adopted with the detainees who had been removed earlier. Even making allowance for the urgency with which they were acting, their manner had a certain brusqueness about it. I doubt that the different manner adopted in removing the applicant was attributable to a "pulling back" or "erratic movement" by the applicant. Instead, although there was no direct evidence to this effect, I think it more likely that the Corrections Officers had been alerted to the fact that the applicant had been non-compliant with YJOs only a few minutes before and they were determined that he should not have the opportunity to do so with them. 595 I also consider it more than coincidental that both Corrections Officers spoke of falling over with one detainee, but not confirming it was the applicant, when the applicant's evidence was, in effect, that there had been a fall. Mr Nicol seemed particularly intent on asserting that it was not the applicant with whom he had fallen. I thought that the manner in which the Corrections Officers walked with the applicant created a very real prospect of a tangle of legs, a stumble or a trip, much more so than was the case with the other detainees whose evacuation is recorded in the CCTV footage. I am satisfied that there was a fall in the applicant's evacuation but do not accept that that was because the applicant had blacked out or fainted. That was an embellishment on his part. 596 The CCTV footage is not entirely clear, but I do think that it supports the claim of the "seatbelt position" of Mr Nicol's right arm, albeit going across the applicant's rib cage towards his elbow rather than down towards his waist. I am satisfied that Mr Nicol's arm was not placed across the applicant's throat, as would have been the case had Mr Nicol been holding him in a "headlock position". I thought this was another of the applicant's embellishments. 597 In summary, I am not satisfied that Mr Nicol had taken hold of the applicant by the throat or that he was constricting the applicant's breathing. If his arm had come into contact with the applicant's throat, it was momentary only and did not constrict the applicant's breathing. Any difficulty which the applicant had in breathing was attributable to the fire extinguisher powder, not to the manner in which he was gripped. In any event, I am not satisfied that the applicant fainted. Instead, there was a trip and fall and the group quickly recovered their feet and continued the applicant's evacuation to the fence, where he was handcuffed. 598 Several of the respondents' witnesses referred to the detainees having been handcuffed to the fence at approximately the shoulder height of the individual detainee and I accept that evidence. While the difference between shoulder height and eye height may not be much, I considered that this was another of the applicant's embellishments in support of his claim. 599 The respondents' witnesses said either that the detainees had not complained to them while handcuffed to the fence, or that they had no recollection of a complaint. Mr Hall said, and I accept, that the detainees had seemed amused that Corrections Officers had had to come to take them from their cells and attend to a clean-up. 600 The fire brigade was summonsed and, after silencing the fire alarm, used their hoses to clean out the BMU with water. This explained the dampness reported by the applicant. After the cells had been cleaned, the Corrections Officers returned the detainees, individually, to their cells. The evidence did not disclose with any precision the time that the applicant was held at the fence but I am willing to accept that it was of the order of 40 minutes. 601 Later on the evening of 29 May 2012, Mr Yaxley sought and obtained the approval of Mr Brown for the placement of five detainees, including the applicant, in the BMU for up to 72 hours.
Was there a battery in the Tackling Incident? 602 It was not in contention that, in the absence of a lawful justification, the actions of Mr Edwards and Mr Standish in taking the applicant to the ground and then restraining him with handcuffs would constitute a battery. 603 The respondents contended that lawful justification was found in s 151(3)(c), s 152(1) and s 153(2) of the YJ Act and reg 71 of the Regulations. The provisions in the YJ Act have been set out earlier in these reasons, at [26], [29], and [31]. Regulation 71 as in force in 2012 provided: 71 Reasonable physical force permitted (1) Subject to regulation 70(2), if it is necessary to physically restrain a detainee for the protection of a detainee, other detainees or other persons, physical force may be used. (2) The force used must not exceed force that is reasonable in the circumstances. The effect of s 153(2) and reg 71 is to permit the superintendent to use the force that is "reasonably necessary in the circumstances". 604 The question of whether the restraints applied to the applicant in the Tackling Incident were reasonably necessary is essentially one of fact, which is to be determined having regard to all relevant circumstances. 605 Part of the applicant's submissions concerning the reasonableness of the use of force in the Tackling Incident was based upon a the training program entitled "Predict, Assess & Respond to Challenging/Aggressive Behaviour Training" to which several of the witnesses referred as "PART training". Mr Edwards had undertaken this training and I infer that the other YJOs had done so also. 606 In Mr Edward's cross-examination, counsel for the applicant drew attention to the following passages in the PART training: (a) wherever possible, the application of restraint is a last resort; (b) the only risk-free restraint is the one that is avoided. (c) unusual, challenging or obnoxious behaviour does not of itself entitle a detention officer to use physical force to stop the behaviour; (d) a detention officer is not entitled to force physically a detainee to comply with a reasonable request unless the refusal is likely to result in injury; (e) a reasonable amount of force is just enough force for effective protection of self and others and no more than is absolutely necessary; (f) restraint techniques should not be used to maintain "good order"; (g) when escorting a detainee, the officer should avoid inflicting pain, and so should check the detainee's arm and shoulder position to avoid stress or hypertension at the joints; and (h) detainees should be placed on the floor by disrupting the detainee's balance, but supporting his or her torso by hands on his or her arms, and then guided to the floor so that the detainee can catch himself/herself. 607 Several of these principles seem common sense. 608 Counsel for the applicant submitted that Mr Edwards had said (a) that he had felt that the "takedown" of the applicant was what he had to do at the time and (b) that that was so even at the risk of injuring the applicant. Counsel went on to submit that this by itself demonstrated the unreasonableness of the force applied by Mr Edwards and Mr Standish. Mr Edwards did give evidence as the first of these propositions but, in relation to the second, said only that he had been aware that there was a risk of injury for staff or detainee in any restraint. Plainly, proceeding with knowledge that there was such a risk did not of itself make the application of force unreasonable. If it were otherwise, physical restraints would always be unreasonable. As the PART training itself accepts, there are circumstances in which force may, and indeed must, be applied. Counsel's submission overlooked that common sense position. 609 Mr Conway identified the following matters as bearing upon the reasonableness of the physical restraint of the applicant in the Tackling Incident: (a) negotiation had been attempted and failed; (b) the applicant's continued non-compliance with the directions of the YJOs; (c) the initial application of force to the applicant had been met with abuse and further struggle, requiring an increase in the force used; (d) placing the applicant on the ground limited his movements and the potential for both the YJOs and the applicant to be injured if not restrained; (e) the number of incidents occurring at Don Dale at the time suggesting that the circumstances in the detention centre were unstable and unsettled, limiting the time the YJOs could spend in negotiation with the applicant; and (f) the application of handcuffs limited the applicant's ability to struggle and made it easier for him to be escorted back to the BMU. 610 Although there was some reference in Mr Conway's cross-examination to PART training, it was not suggested to him that any particular feature of the procedures outlined in that training had been ignored or overlooked. 611 Mr Muir said that he accepted "to some extent" that, once use of force is commenced, allowing a detainee to remain upright is inherently more dangerous than placing the detainee on the ground and that applying handcuffs does ensure greater staff safety in moving a non-compliant detainee. However, he considered that the placement of the applicant on the ground and the application of handcuffs to him in the first incident was not a reasonable use of force for a number of reasons: (a) he was not convinced that the PART training procedures had been followed; (b) the negotiation with the applicant had lasted for a maximum of two minutes. Mr Muir opined that, had negotiations with the applicant continued until Nathan Campbell had commenced discharging the fire extinguisher, there would have been a stronger case to support the use of force by Mr Edwards and Mr Standish; (c) the applicant had been able to exit to the courtyard area by reason of staff security breach in leaving a door to the yard open; (d) the applicant was not able to escape from the courtyard area; (e) there had not been such a number of separate incidents as to "stretch" the available YJO resource; and (f) Mr Conway's analysis of the detainees refusing lockdown was incomplete; (g) the applicant's behaviour was properly categorised as challenging but not dangerous. The aspects in which it had become dangerous occurred only after staff had initiated force; (h) he suspected that the attendance by multiple YJOs in the courtyard may have served to escalate the situation; and (i) the applicant had not assaulted a staff member in five months. 612 It is not readily apparent how reason (c) could bear on the reasonableness of the force applied. 613 In his cross-examination, Mr Muir said that his "point of difference" with Mr Conway for considering the use of force unreasonable at the time that it occurred was that the negotiations with the applicant could have been more prolonged. He said that the negotiation should have continued until the fire extinguisher was deployed in the BMU and, in the absence of that having been deployed, for another 10-15 minutes. A period of this order was, he considered, a reasonable period for negotiations. 614 While agreeing that it would be necessary to have an understanding of all the circumstances with which the YJOs were dealing at the time and knowledge of the applicant's behaviour before expressing a view about whether the application of the force had been premature, Mr Muir accepted that: (i) he had not known that Mr Richards had threatened Ms Auton with the large serving spoon and agreed that would have heightened the state of alertness by the YJOs; (ii) he had been unaware of the earlier instances of non-compliance by the detainees, including the unwillingness of detainees to leave the dining room to return to their rooms. He also seems to be unaware that another detainee, Mr Hyde, had, at about the time the YJOs were dealing with the applicant, broken shelves in Room 8 in which he was accommodated and had used those shelves to break the observation window in the door and to smash holes in the ceiling of that room. The Corrections Officers had later also removed Mr Hyde from his cell and handcuffed him to the basketball fence; (iii) The YJOs had been entitled to think at the time that they were dealing with a general deterioration of security within Don Dale; (iv) he did not know whether there were sufficient YJOs in Don Dale at the time to deal with the other issues which were occurring and did not know whether other YJOs had been free to continue negotiation with the applicant while Mr Edwards, the senior officer on the shift, went to deal with other issues; and (v) did not know what other matters were being communicated to Mr Edwards by radio. 615 Mr Muir was not asked to identify the means by which he had identified that the negotiations with the applicant had continued for a maximum of two minutes only. To an extent, there is a difficulty in identifying the precise time because of an inaccurate time setting on at least one of the CCTV cameras. However, the time which elapsed between the applicant and Mr Richards running out of the dining room until the time that Mr Edwards and Mr Standish took hold of the applicant, appears to have been of the order of three minutes, and that does not make any allowance for the negotiations with the applicant and Mr Richards which had occurred in the dining room. I conclude that there had been a longer period of negotiation than Mr Muir supposed but, at the same time, accept that it had not continued for 10-15 minutes. 616 However, there is a real sense in which that is immaterial because, even if Mr Muir's opinion be accepted, the YJOs would not have had 10-15 minutes for negotiation. The time which elapsed between the first restraint of the applicant and the triggering of the alarm by reason of Nathan Campbell's activities appears to have been only four minutes. Further, Nathan Campbell must have commenced smashing the panel next to the security lounge external door even before that alarm was triggered. In this respect, Mr Edwards' evidence that he had been told, while dealing with the applicant, that there was a disturbance in the BMU is pertinent. Mr Edwards had also heard a disturbance in H Block at the time that he returned Mr Richards to the BMU. Accordingly, even on Mr Muir's account, it is likely that negotiation could have continued for only another minute or two and there is nothing to indicate that the YJOs should have appreciated that further negotiation over such a short period would have been likely to produce any change in the applicant's attitude. 617 In addition to the sufficiency of the time allowed for negotiation, I keep in mind that the applicant's principal concern appears to have been to have a shower and that arrangements for him to shower could have provided a basis for negotiation. There is no evidence that that was attempted. However, Mr Edwards said (and his evidence about this was not challenged) that the showering of detainees in the maximum security area occurred after they had been locked in their cells, so that they could be brought out individually for that purpose. The applicant must have known that that was the routine. 618 I consider it appropriate to make the assessment of the reasonableness of the YJOs' conduct on the basis that they were dealing with a situation which was dynamic, not only because of the applicant's own conduct but because of the circumstances in Don Dale more generally. It is also appropriate to take into account that only five months had elapsed since the lawlessness on Boxing Day and the YJOs must have been aware that the applicant had been a principal participant in those events. It is understandable in those circumstances that they wished to restore order in Don Dale as quickly as possible and were wary about the applicant's potential to escalate matters. 619 One needs to be careful about applying the wisdom of hindsight to matters involving fine judgments about conduct in a dynamic situation. The matters to which I have referred indicate that the situation confronting the YJOs was difficult, evolving and potentially threatening. They were endeavouring to stabilise the circumstances at Don Dale by having all detainees locked in their cells. In addition to the incidents in the dining room and in the hallway to the BMU, they had, virtually concurrently, the separate incidents of unruliness involving the applicant, Mr Hyde and Nathan Campbell. Mr Edwards and Mr Standish were endeavouring to restrain the applicant in the manner of the PART training. Possibly, and perhaps in less flurried circumstances, they could have continued, despite the applicant's apparent obduracy, to negotiate with him. 620 However, having regard to the matters which I have reviewed, I am satisfied that the respondents have established that it was reasonable for Mr Edwards and Mr Standish to apply the force they did at the time they did. That is to say, I am satisfied that the force applied to the applicant was reasonable in the circumstances. The injury which the applicant suffered was in large part attributable to his own actions in struggling with Mr Edwards and Mr Standish. 621 In the circumstances, I am satisfied that there was no tort of battery in the Tackling Incident. 622 Plainly there was no assault, and the applicant's counsel did not persist with that contention in the final submissions. 623 Counsel did not make any final submissions to support the claims of negligence and I took it to have been abandoned. In any event, the applicant cannot, on my findings, establish a breach of duty of care.
Was there a battery in the Evacuation Incident? 624 Again, it was not in issue that, in the absence of a lawful justification, the actions of the Corrections Officers in the manner in which they evacuated the applicant would constitute a battery. 625 The respondents relied again on ss 151(3)(c), s 152(1) and s 153(2) of the YJ Act and reg 71 of the Regulations. 626 The applicant's final submissions focused on the applicant's claim that he had been choked. Counsel submitted that the CCTV footage showed the Corrections Officer's arm around the applicant's throat, rather than a "seatbelt" hold being applied. I have already made findings to the effect that the CCTV footage does not support the applicant's claim as to the manner in which he was held or that he was choked. I reject his claim that he was choked by the Corrections Officers. While I accept that there was a certain brusqueness in the way in which the applicant was moved from his cell in the BMU, that is explicable in the emergency circumstances then pertaining. 627 In relation to the handcuffing to the basketball fence, counsel submitted that this was "a cruel and degrading spectacle when the detainees should have been allowed to recover from fire retardant contamination". Counsel submitted that the respondents had not adduced any evidence to support the handcuffing to the fence. 628 Mr Conway considered that the use of handcuffs in escorting the detainees from their cells to basketball fence was reasonable in the circumstances. In fact, he said that in the circumstances he would have advocated for the use of handcuffs. Mr Muir agreed that, given that "this was a real-time emergency and given the antecedents and the nature of the emergency … the decision to utilise handcuffs to remove the detainees was reasonable". 629 Mr Muir thought it clear that the training or operational procedures of the Corrections Officers had required them "to either push the head of a detainee downward or in this case the Prison Officer pushed his elbow against [the applicant's] neck". He assumed that this was done to prevent detainees spitting or head-butting the escorting officers. While querying the reasonableness of force of this kind on children, Mr Muir concluded that the use of force in removing the applicant from his cell had been reasonable. He opined, however, that the degree of force had been excessive "in that it was more than was reasonably necessary due to officers not being appropriately kitted out in the required PPE and the restraint to [the applicant's] neck area". In support of this opinion, Mr Muir said: (a) This was a planned use of force and [for the Corrections Officers] to arrive without PPE does seem to fly against workplace health and safety principles and relevant Directives; and (b) The technique of forcing the head down was essentially a one-size-fits-all approach. It means that no negotiation had been undertaken ... 630 As is apparent, Mr Muir's opinion did not seem directed to the particular force about which the applicant complained and which was the subject of his pleading. Moreover, there are difficulties in his reliance on the Corrections Officers arriving without breathing apparatus. Whether that was reasonable or not, the Corrections Officers chose, in the circumstances of the emergency, to intervene before the breathing apparatus arrived. Their conduct should be assessed in that factual situation. 631 However, putting those matters to one side, I consider that the respondents have shown that the force applied by the Corrections Officers was reasonable in the circumstances having regard, in particular, to the following: (a) this was an emergency situation in which prompt action was required; (b) the officers had to work quickly and, as Mr Hall indicated, more quickly than would usually have been the case; (c) the period during which the force was applied was very short, probably for less than a minute; (d) the circumstances of the Boxing Day disturbance as well as the applicant's principal role in it must still have been fresh in everyone's minds; and (e) it is reasonable to infer that the officers were aware of the applicant's non-complaint behaviour only a few minutes earlier. 632 Having regard to the last two matters in particular, it is understandable (and in my view reasonable) that the officers were wary for potential misconduct by the applicant and adopted a "no-risk" approach. Accordingly, I am satisfied that the force applied in the manner of evacuation of the applicant was reasonably necessary. 633 In relation to the handcuffing to the fence, contrary to the applicant's submission, Mr Hall gave evidence that that method of securing the detainees had been adopted because "there was nowhere else suitable". It was not suggested in his cross-examination that there was any other suitable place. Having regard to the following matters, I consider that the force involved in handcuffing the applicant to the fence was reasonably necessary: (i) it was not just the applicant but a group of detainees who had to be secured; (ii) all of the members of the group (other than Mr Hyde) had a Maximum security classification at the time; (iii) the unruliness which had occurred only a few minutes earlier made it inappropriate for the detainees, and in particular the applicant, to be allowed to move freely about in the courtyard area while the BMU was cleaned. The recent experience in the Boxing Day disturbance added to the reasonableness of that approach; (iv) the fresh air was probably helpful for those detainees who had had exposure to the fire extinguisher powder; (v) there was some reduction in the number of YJOs available to supervise the detainees as some, in particular Mr Edwards who was the senior officer on shift, were physically affected by the powder to which they had been exposed; and (vi) the handcuffing was for about 40 minutes. Ms Auton was monitoring them during that period. She said that none had complained of any discomfort, and that if they had done so, she would have made some adjustment. She was not asked to do so. This evidence was not challenged in cross-examination and I accept it. 634 Mr Conway considered the handcuffing to the fence as reasonable. That is the view which I have reached as well.
Conclusion on the claims concerning the incidents on 29 May 2012 635 For the reasons given above, I am satisfied that the respondents have established that their use of force in the incidents on 29 May 2012 had a lawful justification. The applicant's claims of battery and assault fail. The applicant has not established a breach of duty of care in respect of the Tackling Incident.
Detention at Don Dale from December 2011 until 9 July 2012 636 Having addressed the applicant's claims concerning events after 21 December 2011, I now return to his claim that his continued detention at Don Dale until 9 July 2012 was in breach of the duty of care owed to him and resulted in a form of negligent false imprisonment.
The applicant's pleaded case 637 The applicant's pleading in 6SC [36] is that the respondents knew or ought to have known by December 2011 that: (i) [he] was distressed, frustrated and angry about his ongoing detention; and (ii) maintaining [his] detention at Don Dale on the terms asserted by the officers was effecting [his] welfare, so that the failure to transfer back to [ASYDC] was in breach of the duties of care which each owed to him. 638 As noted earlier, the applicant pleaded that the respondents' breach of duty of care resulted in him suffering foreseeable harm being false imprisonment and medical harm. The manner in which the applicant particularised this claim is set out earlier in these reasons but, for convenience, I will repeat it: The ongoing detention of the applicant at Don Dale constituting breach of the Duty of Care and the Second Respondent's Duty of Care: i. was for a purpose, being the infliction of unlawful and inappropriate discipline upon the applicant, which was inconsistent with a reasonable exercise of powers under the Act and the Regulations; ii. was undertaken and maintained in the knowledge that it deprived the applicant of his rights, including his right to contact with his family, culture and Country; iii. inflicted punishment upon the applicant which was unfair, known by the applicant to be unfair, was contrary to the aim of developing the applicant's sense of social responsibility and hampered his development in beneficial and socially acceptable ways in breach of section 4(n) of the Act; and iv. resulted in the applicant being detained at a place which was not authorised by the scheme of youth detention established by the Act and the Regulations. 639 I note again the curiosity in alleging false imprisonment as a form of harm resulting from negligence.
The applicant's evidence 640 The applicant's evidence in chief about remaining at Don Dale until 9 July 2012 was relatively brief. He said that he had not liked being at Don Dale and that he had been happy to leave it. 641 The applicant also referred to a request he made in a letter to Mr Yaxley on 26 June 2012, the substantive content of which was: Dear Management I would like to make a request to go back to Alice Springs Detention Centre. At the moment I am in an orange shirt. If I was to be transferred to Alice Springs Detention Centre I will guarantee that I will either be orange shirt or better. I would expect that if I go red shirt after being transferred that I would return to Don Dale immediately. However, it is my goal to be classified in a blue shirt by the end of August. I have noticed that my bad behaviour has affected my family and I'm doing my best to be good. So that it stops affecting them. 642 In cross-examination, the applicant said that he had been told that his plan to return to ASYDC over Christmas had been cancelled because of his conduct in assaulting another detainee on 21 December and confirmed that he had understood from that incident that, if he did not improve his behaviour, he would not be authorised to return to ASYDC. 643 The applicant said that he could not remember Mr Donald speaking to him on several occasions about a possible return to ASYDC and telling him that, if he wished to do so, he would have to comply with Mr Yaxley's requirement that he get a lower security classification.
The respondents' evidence 644 There was a good deal of documentary evidence concerning the applicant's continued detention at Don Dale and his return to ASYDC on 9 July 2012. In addition, the respondents led evidence from Mr Brown, Mr Yaxley and Mr Donald. I regarded their evidence as reliable and accept it. In those circumstances, it is not necessary to record the evidence separately but I indicate that I have accepted it in making the findings which follow. 645 The applicant's family pressed for him to be returned to ASYDC. The applicant's mother told Mr Donald as much on 18 and 30 January 2012, and his father told Mr Donald on 3 February 2012 of his belief that, had the applicant been permitted to return to ASYDC, the incidents over Christmas and New Year would not have occurred. Both Mr Donald and a senior case worker, Ms Blakemore, recorded communications from the applicant's mother on 31 January 2012 seeking his return to ASYDC. 646 Mr Donald arranged a meeting on 10 February 2012 in which he, the applicant, the applicant's parents and Ms Blakemore participated. After the meeting on 10 February 2012, Mr Donald recorded that the applicant had "indicated to his father that he would like to stay in Don Dale as opposed to returning to Alice Springs detention as he is doing well in Don Dale on the work program". Mr Donald also recorded that the applicant's parents had been unhappy with his decision to stay at Don Dale. The applicant said that he could not recall that meeting. I am satisfied that Mr Donald's record is reliable and, in particular, that he recorded accurately the applicant's own view. 647 I am also satisfied that the applicant gave Mr Donald mixed messages about staying at Don Dale. On occasions he indicated that he wished to stay and on other occasions said that he wished to return to Alice Springs. Mr Donald (who was plainly an honest witness) said that, after visits from his family, the applicant would sometimes become strongly in favour of returning to ASYDC but would later change his mind. He noted that one of the attractions for the applicant at Don Dale was a particular work program to which the applicant responded positively. In cross-examination, the applicant agreed that he had enjoyed the program and that it was "better than going to school". There was no equivalent program available at ASYDC. 648 Mr Donald encouraged the applicant to remain at Don Dale. He did so because he considered that remaining at Don Dale gave the applicant the best opportunity of obtaining parole and thereby of avoiding transfer to an adult prison on turning 18 (which would occur in August 2012). Mr Donald also arranged for the applicant to have one-on-one counselling sessions with a counsellor from Danila Dilba, a health service providing, amongst other things, culturally appropriate programs for vulnerable Aboriginal people. The counselling commenced on 1 February 2012 and was reported as producing positive effects. It ceased at the applicant's request on 10 May 2012, after he had had five sessions. Mr Higlett, the Danila Dilba counsellor, reported to Mr Donald on 16 March 2012 that, amongst other things, the applicant "enjoys working at Don Dale and likes to keep busy [in] hands on work". 649 Contrary to the applicant's evidence, other programs were provided to him. Ms Blakemore, the Senior Case Worker, arranged a "Cognitive Skills Program" for four detainees (including the applicant) which commenced on 12 March 2012. The evidence did not disclose the content or nature of that program. In addition, on 30 April 2012, the applicant was one of eight detainees who commenced an Alcohol Program. This involved sessions every Monday for five weeks. 650 Mr Yaxley said that, in the light of the applicant's conduct in the Boxing Day disturbance, he had regarded it as inappropriate for him to be transferred back to ASYDC without a significant change in his behaviour, because: (a) the ASYDC facilities were not suitable for accommodating a detainee who posed such a high risk of injuring staff or other detainees; (b) given the applicant's attempt to escape from Don Dale, the risks associated with him escaping from ASYDC were too high; (c) it was necessary that there be consequences for the applicant's behaviour, not only in order to induce the applicant to improve his behaviour, but also to ensure other detainees knew that there would be consequences for misbehaviour; and (d) the applicant was required to attend Court in Darwin in respect of the charges arising from his conduct in the Boxing Day disturbance; (e) the applicant's reclassification as a Maximum security detainee on 20 April 2012 made it inappropriate for him to be transferred back to ASYDC. 651 On or about 20 March 2012, the applicant asked Mr Donald if he could be transferred back to Alice Springs for his great grandmother's birthday on 8 April 2012. When passing on this request to Mr Barrie Clee and Ms Blakemore on 20 March, Mr Donald said: Personally I am thinking that it is bad timing. It would be great to see him in a green shirt and have the response from his parole application all sorted. But [I] am keen to hear what you think especially as you have worked with him in Alice Detention and know [what] he was like first hand down there. At the time the applicant made that request, he had a Medium security classification (orange shirt) but, as a result of his SCATE assessment on 20 March 2012, that was reduced to Low 1. 652 Both Mr Clee and Ms Blakemore supported the request. In an email of 20 March 2012, Mr Clee said: Marley could possibly be in a green shirt by then and it was mentioned to his mother Lisa, and Marley that he would have to move through the classification system before being considered. To date since he has been working on the work program, behaviourally he has been very good and responded well to the 1 on 1 working with Stuart Bush. Looking at it currently I have no issues with the dates that he wants to go or the transfer itself, as it is in a few weeks (sic) time, and affords us a better look at it closer to the time. Not to send him I feel would be very negative, as we have made a commitment, to Marley himself that it would be considered in the future. I would like however to see Marley in a green shirt prior to any transfer, and a date pre arranged for his transfer back to DDC. I think a fair time for this transfer should also be capped at a week, as this is plenty of time to catch up with any family members. We could vary the visiting hours to accommodate any visits over this period. 653 On 26 March 2012, each of Mr Donald, Ms Blakemore and Mr Barrie Clee told Mr Yaxley that they supported the transfer of the applicant to ASYDC in relation to his grandmother's birthday on 8 April. 654 On 26 March 2012, Mr Yaxley sought Mr Brown's approval for the applicant to be transferred to ASYDC for a five day visit on account of his grandmother's birthday. In his email, Mr Yaxley reminded Mr Brown that the applicant had threatened to kill him in the Boxing Day incident but said that he had since then made "very good progress", that he was now at the Low 1 classification level, that he was demonstrating a positive attitude and work ethic on his structured work program, and that, allowing the five day return to Alice Springs, "would be a positive move to assist his re-integration and reward him for his mature and hardworking approach". Mr Brown approved the request and the applicant was transferred back to Alice Springs for the period 5-9 April 2012. 655 After his return to Don Dale on 9 April 2012, the applicant was involved in a number of incidents reported in the IOMS. Some appear to have been minor but, during a game of football on 19 April 2012, the applicant struck another detainees twice in the face. By reason of these incidents, the applicant's security classification was increased on 20 April 2012 to Maximum (red shirt). He retained that classification until 20 June 2012. 656 The SCATE assessments which followed included reports of unacceptable behaviour by the applicant, including incidents of fighting, non-compliance and verbal abuse of detention centre staff. However, on 20 June 2012, the SCATE assessment reported improvement in the applicant's behaviour ("Marley has been compliant and co-operative on most occasions"). 657 On the review of the applicant's parole in April 2012, consideration was deferred again to October 2012. 658 On Sunday, 10 June 2012, Mr Brown agreed to meet Ms Palmer and the applicant's father informally while they were in Darwin. Ms Palmer raised the family's concerns about the continued detention of the applicant in Don Dale. 659 It is evident that Ms Palmer commenced to agitate at this time issues about possible non-compliance with a code of practice and delays in the applicant having medical attention for his right shoulder injury. Mr Brown said at the meeting on 10 June that he was prepared to approve the transfer of the applicant back to ASYDC once his Court proceedings had been resolved. It is also evident that Ms Palmer and the applicant's parents wrote letters to Mr Brown on 10, 14 and 16 June 2012 in relation to the applicant's detention, but those letters were not in evidence. 660 On 26 June 2012, the applicant made the request for transfer back to ASYDC to which he referred in his evidence in chief. This led to some discussion between Mr Clee, Mr Brown, Mr Donald, Mr Yaxley and others. Generally, the applicant's request was supported, subject to the resolution of the charges arising from the applicant's conduct in the Boxing Day disturbance and the applicant attaining a Low 1 security classification (which was expected to occur at the review on 11 July 2012). 661 The matter of his transfer to Alice Springs concluded on 9 July 2012 when the applicant was transferred to ASYDC. He remained there until his 18th birthday in August 2012 when he was transferred to ASCC, being the adult prison.
Consideration 662 In the final submissions, the respondents did not rely upon issues of capacity as justifying their decision to retain the applicant at Don Dale. I note, however, that there were times in March, April and May 2012 when ASYDC operated at, or above, its nominal capacity of 16 detainees. I also note that, commencing on 26 April 2012, the respondents resumed accommodating detainees at ASJHC. Although there was no express evidence to this effect, I infer that that was attributable, at least in part, to issues concerning the capacity of ASYDC. The numbers at ASYDC did reduce markedly on 21 May 2012 but this appears attributable to seven youth escapees being housed at ASCC. It is fair to say though that, at least from the end of May, the fact that detainees were being accommodated at ASJHC meant that there was greater capacity at ASYDC. 663 The applicant's submission that his continued detention at Don Dale in the first six months of 2012 was in breach of the duty of care seemed to depend upon a combination of propositions, namely, that it was for the purpose of inflicting unlawful and inappropriate discipline; that it inflicted a punishment which was unfair; and that it was inconsistent with a reasonable exercise of the powers under the YJ Act and Regulations. 664 In my opinion, none of these propositions is made out. Mr Yaxley's evidence summarised earlier accords with a common sense appreciation of the situation. I accept it. Mr Yaxley, as Superintendent, had the discretion under the YJ Act to determine the appropriate placement for the applicant and the evidence is inconsistent with him having exercised that discretion for an improper purpose or unreasonably. It is understandable that, following the applicant's conduct in the Boxing Day disturbance, that he was given a Maximum security classification. It is also understandable that the respondents considered that the appropriate placement for the applicant, given that security classification, was at Don Dale. 665 The applicant's submission tended to overlook two significant matters. The first was the practical consideration that the applicant had to deal with the charges arising from his conduct in the Boxing Day disturbance. These were not resolved until 29 June 2012. 666 The second matter bearing on the respondents' placement of the applicant that, having obtained a Low 1 classification on 20 March 2012, one month later his conduct led to him again being given a Maximum security classification, which he retained until 20 June 2012. 667 The applicant's pleaded case that his continued detention at Don Dale constituted a form of punishment has an incongruity, given that the applicant himself had resisted his family's wishes to have him returned to ASYDC. He did that expressly at the meeting on 10 February 2012. I also accept Mr Donald's evidence that, at other times, when he had agreed with his family that he would like to return, he had later told Mr Donald that he wished to remain at Don Dale. It is understandable that the applicant wished to do so given that he was able to participate in a work program which he enjoyed, and to participate in the other programs at Don Dale which were not available to him at ASYDC. Those programs were plainly intended to assist in his development of a sense of "social responsibility" and of conduct "in beneficial and socially acceptable ways". The provisions of those programs is inconsistent with the applicant having been kept at Don Dale only for punitive or disciplinary purposes, 668 The submissions on the applicant's behalf also overlooked other relevant considerations. One was that Mr Donald was encouraging the applicant to stay at Don Dale as this gave him his best chance of obtaining parole, and thereby avoiding transfer to ASCC. That purpose is inconsistent with the purpose for which the applicant now contends. 669 It is also obvious that the applicant's familial connections were not overlooked. The very fact that the April visit was arranged is evidence of that. The persistence with which the applicant's family pressed for his return to Alice Springs meant in any event that those connections could not be overlooked. 670 Finally, while it may be accepted that it was appropriate for Mr Yaxley to take into account the wishes of the applicant's family and those of the applicant himself as expressed from time to time, and issues of family and culture, he was also charged with responsibility for the broader management of detention at ASYDC and Don Dale and the maintenance of good order and security in those centres. This meant that considerations personal to the applicant were not his sole consideration and that, for the reasons given earlier, account had to be taken of considerations which did not coincide. 671 In summary, the applicant was kept in a detention centre in which he was entitled to be held. That is not false imprisonment. But in any event, there was no breach of the duty of care in the decision to hold the applicant at Don Dale in the period from 21 December 2011 to 9 July 2012. This claim of the applicant fails.
The eyesight claim 672 The applicant claims that, throughout his detention, he had suffered from an impairment of his eyesight; that there had been no testing of his visual acuity; and, consequently, that his impaired vision had been undetected and untreated. He alleged against the Territory, but not against the Superintendent, that the failure to test his visual acuity constituted a breach of the duty of care. 673 The applicant pleaded that the Territory's duty of care in this respect arose from the circumstance that it had detained and maintained control over him, thereby preventing him from accessing public health facilities, and from the fact that he was a youth who had been removed from family support with respect to his health. He pleaded that the duty of care arising from these circumstances required the Territory "to undertake responsibility for, and [to] attend to, [his] health needs" and that those health needs included his eyes and visual capacity. 674 In relation to the content of the duty, the applicant also relied upon regs 57 and 58 of the Regulations, which provide: 57. Medical examination of detainees (1) The Superintendent must ensure a comprehensive medical and health assessment is carried out on each detainee within 24 hours after the detainee's admission to the detention centre. (2) If a medical practitioner is not available to carry out the assessment, a registered nurse may carry out an interim assessment. (3) If an interim assessment is conducted by a registered nurse, a full examination by a medical practitioner must be carried out as soon as practicable. (4) In this regulation: "registered nurse" means a registered nurse who has a right of practice under the Health Practitioners Act. 58. Medical attention and treatment A detainee must be provided with the medical attention, treatment and medicine that, in the opinion of a medical practitioner, is necessary for the preservation of the health of the detainee and, if applicable, other detainees and members of staff. 675 It may be inferred that the purpose of the "comprehensive medical and health assessment" required by reg 57 is to bring to the Superintendent's attention, as soon as practical after a detainee enters detention, any matters affecting the health of the detainee, including matters which may affect the management of the detainee while in detention, and to enable the Superintendent to comply with the obligations imposed by Pt 10 of the YJ Act and by reg 58. 676 The applicant alleged that the Territory's failure to diagnose and address his visual disability had resulted in him being unable to "progress his education whilst in youth detention"; that this had resulted him in "being unable to attain any formal standard of completion of his education and suffering from poor literacy"; and that this had had a negative effect on his prospects of successful re-integration into the community. 677 It was common ground that no testing had been made of the applicant's visual acuity at either ASYDC or Don Dale.
The applicant's evidence 678 The evidence which the applicant led in support of his claim was limited. In particular, he did not lead any expert evidence about his eyesight, let alone about the nature and extent of the claimed impairment or its aetiology. When this was pointed out to counsel in final submissions, he referred the Court to the report of a test of the applicant's eyesight carried out on 28 March 2003 (when the applicant was eight years old) by the School Health Service. That indicated that the applicant had 6/6 vision in each eye. Counsel did not indicate, however, how that assessment was of assistance presently. 679 The applicant's evidence in chief concerning the eyesight claim commenced with the following: XN: Do you recall whether you at any stage when you were in youth detention started to be concerned about your eye sight? A: Yes, I told the teacher a couple of times that I couldn't see the whiteboard at school, and he just use to sit me up at the front. XN: Did that fix the problem? A: No, not really because I still had trouble seeing the board. XN: Alright. Now, in relation to - were there any other issues that concerned you about your eyes at the time? A: Yes, I used to get a lot of headaches. XN: Did you tell anyone about that? A: No. 680 The applicant said that he did not have any check of his eyesight until he was in the community in 2016 and at that time was prescribed glasses. He said that that had made "a big difference" to his ability to read. 681 This was the entire content of the applicant's evidence in chief on the topic. 682 In cross-examination, the applicant referred to only one occasion on which he told the teacher that he was having trouble seeing the blackboard, but that seems to have been a consequence of the manner in which the question was asked of him. He said that that one occasion had occurred before the mobile phone incident on 7 April 2011. He acknowledged that he had no trouble reading a document on a desk in front of him. In fact, the applicant did read documents in the witness box without making any use of glasses, as he had overlooked bringing them to Court. 683 Ms Palmer said that the applicant had told her that he "couldn't really see" and that his eye sight had deteriorated at Don Dale. However, in her cross-examination, Ms Palmer said that the applicant had made the complaint about his eyes to her while he was in ASYDC and before his transfer to Don Dale in October 2011. 684 I have said that the applicant did not lead any expert evidence in relation to his eye sight. His solicitors did, however, seek an opinion from Mr Ralph, the forensic psychologist, concerning the claimed failure of the Territory to diagnose and treat the applicant's "visual impairment". Mr Ralph did express an opinion in response to that request. However, I upheld the Territory's objection to Mr Ralph's opinion on that topic on the basis that it had not been shown that diagnosis of a visual impairment, and an assessment of its effects when found to exist, was within his expertise. 685 I note, however, that Mr Ralph recorded that the applicant had told him that he requires his prescription glasses only for viewing at a distance, and that he wears them mainly when watching television. Mr Ralph also reported that the applicant's eyesight "did not appear to be a point of concern" for him.
The respondents' evidence 686 A number of the respondents' witnesses, in particular Mr Clee, Mr McAllan, Mr Edwards, and Mr Mangawai, said that the applicant had not raised any issue about his eyesight with them and that they had not noticed anything about his facial expressions or manner which suggested that he may be experiencing difficulties with vision. Nor had they noticed anything in his every day activities which may have indicated that the applicant had a problem. These witnesses, other than Mr Mangawai (who was not asked what he would have done) all said that, had the applicant raised with them an issue about his eyesight, they would, in accordance with practice, have referred him for a medical assessment. 687 Mr McAllan also referred to his observations of the applicant playing sport ("he had no trouble with hand-eye coordination") and in the recreation room when, even sitting at the furthest most point from the television, he had seemed to have no difficulty in viewing the television. He also said that there had been other detainees to whom he had spoken about their eyesight. 688 At the time of the applicant's admission to the ASYJC on 3 February 2010, Mr McAllan carried out an "Immediate Risk/Needs Assessment". This involved him asking the applicant a series of questions by reference to a pro-forma questionnaire and recording the applicant's responses. One of the questions was "Does the offender have visual impairment?" to which Mr McAllan ticked the "No" box. He said that in relation to that question, his practice was to ask the new admittee a question to the effect of: "are there any problems with your eyes that we need to report or that we need to have taken care of?" and then to record the answer given by the admittee. There is no reason to suppose that Mr McAllan did not follow that practice in relation to the applicant. 689 The respondents also led evidence from Dr Connors who, at the time of trial, held the position of General Manager, Darwin Region and Strategic Primary Health Care Branch and Health Services (TEHS). Dr Connors has several medical qualifications and has worked in the Department of Health in the Northern Territory since 1987. 690 Dr Connors deposed that, until October 2012, the primary health care in correctional and detention centres in the Northern Territory had been provided by International SOS Pty Ltd (ISOS), pursuant to a Services Agreement with the Department of Correctional Services. Although Dr Connors deposed that she had annexed to her affidavit a copy of the Services Agreement between the Department of Correctional Services and ISOS, the annexure did not seem to be the complete contract and, in particular, did not identify the particular obligations of ISOS pursuant to the Agreement. It is accordingly not possible for the Court to ascertain whether the responsibilities of ISOS included the carrying out of the "comprehensive medical and health assessment" which reg 57(1) requires. 691 In any event, apart from the occasions when the applicant was seen by a doctor or nurse for an immediate problem, the only evidence of a general assessment of the applicant's health is the "Immediate Risk/Needs Assessment" undertaken by Mr McAllan on 3 February 2010. Mr McAllan was neither a medical practitioner or a registered nurse who could carry out the "comprehensive medical and health assessment" required by reg 57(1). 692 However, Dr Connors said that: [36] Routine health assessments do not ordinarily include visual acuity assessments. Rather, visual acuity assessments are conducted following a patient informing a health practitioner that they have vision problems, prompting a formal vision test, as necessary. … [39] There is no evidence to support asymptomatic screening of younger people. [40] Whilst vision problems are not uncommon, and there is a test, using the Snellen chart, which is simple to complete, the prevalence of vision problems is not sufficient enough to justify conducting the test routinely. Routine assessments will not identify a significant percentage of people who would not otherwise present with vision problems. [41] Vision problems are more common in the Aboriginal and Torres Strait Islander population, however, again, there is no evidence base to justify routine testing for those difficulties, and particularly amongst young or adolescent members of that population. 693 Dr Connors noted in this respect that the "Guidelines for Preventive Activities in General Practice" published by the Royal Australian College of General Practitioners, recommended assessments of visual impairment in the elderly, or as indicated by symptoms or history. 694 Dr Connors also deposed that, after October 2012, when the contract with ISOS ceased, the Department of Health had not, until 2017, performed routine screening of visual acuity amongst youth detainees, at [54]. It does perform such tests now. 695 The cross-examination of Dr Connors was limited. In particular, her evidence in the paragraphs quoted above was not challenged. I accept Dr Connors' evidence. 696 I have previously expressed my view that the evidence of Mr Clee, Mr McAllan, Mr Edwards and Mr Mangawai was reliable. I accept it.
Consideration of the eyesight claim 697 I accept that reg 57(1) informs the content of the duty of care. I am also satisfied that the applicant has established that the respondents did not ensure, as required by reg 57(1), that 'a comprehensive medical and health assessment" of him was carried out within 24 hours of his admission to detention in February 2010 or, for that matter, at any time thereafter. 698 In addition, I am willing to infer, in the applicant's favour, that such a comprehensive medical and health assessment would have included an assessment of the applicant's eyesight. Dr Connor's evidence about routine health assessments is not inconsistent with that conclusion. The adjective "comprehensive" seems to connote something more than "routine" and that would be consistent with the purpose for which the assessment is required. In any event, it is the nature of the obligation imposed by the Regulations which is decisive, and not the practices adopted generally in the community which I understood to be the subject of Dr Connors' evidence. While I accept that a comprehensive medical and health assessment does not require the administration of every known test, the existence of visual impairment in youths is not uncommon and an initial test of eyesight is not intrusive and relatively simple. Moreover, an impairment of eyesight is, like an impairment of hearing, capable of impacting on the management and conduct of a detainee. I note in this respect Dr Connors' evidence that the Department of Health has since October 2017 carried out tests of the visual acuity of detainees, and does so within five days of their admission to a detention centre. 699 These matters, coupled with the non-compliance with reg 57, are capable of supporting a breach of the duty of care owed to the applicant when he came into detention in February 2010. 700 Whether there was any continuing breach of the duty of care is more problematic. An important matter bearing on this issue is whether the Territory was, by its officers, put on notice that the applicant may have some visual impairment. My acceptance of the evidence of Mr Clee, Mr McAllan, Mr Edwards and Mr Mangawai, referred to above, has the consequence that the Territory was not alerted to the possibility that the applicant had a vision impairment. 701 Given my reservations about the reliability of the applicant's evidence, I am not willing to accept his evidence about his classroom experience. Ms Palmer's evidence does not provide persuasive corroboration of the applicant's claim, especially given the inconsistency it contains. 702 Another matter bearing on the question of whether there was a continuing breach of the duty is that the Don Dale records indicate that on numerous occasions the applicant raised matters leading to him being seen at the medical clinic. He appears to have had ample opportunity, if he was experiencing difficulties with his eyes, to seek a medical assessment of them, or at least to have reported those difficulties. 703 Despite these matters, I am again willing to infer in the applicant's favour that the breach of the duty of care continued for so long as the "comprehensive medical and health assessment" was not carried out. 704 However, even accepting that there was a continuing breach of the Territory's duty of care, the applicant's claim fails for a want of evidence establishing, or supporting, the causal consequence he alleges. In particular: (a) assessments of visual impairments and their effects involve knowledge of matters not possessed by courts themselves. Expert evidence is necessary. The absence of expert evidence concerning the applicant's claimed visual impairment creates a fundamental difficulty. It means that the Court has no evidence that an assessment of the applicant's eyesight while he was in detention would have revealed any impairment, let alone the nature of the impairment. The Court does not even have expert evidence as to the nature of the impairment which led to the applicant being prescribed glasses in 2016 (about four years after he left detention), the likely aetiology of that impairment, or its effects. Nor does it have expert evidence concerning the likely progress of the impairment from which an inference may be drawn as to the period over which it developed; (b) the reports relating to the applicant's education before February 2010 indicate that he was having difficulties at school, that his attendances were marked by absenteeism and that his progress was uneven. While it may be accepted that the applicant continued to have difficulties with his education while in detention, an assessment of their cause would have to take account of that pre-detention history. Given that there are several alternative (and plausible) explanations for the applicant "being unable to attain any formal standard of completion of his education" and "poor literacy", it would not be realistic to attribute the applicant's difficulties to a visual impairment without the assistance of expert evidence; (c) the applicant was free in the community between 13 November 2012 and 22 March 2013, between 27 June and 31 August 2013, between 2 September and 7 November 2013, and between July 2014 and 25 August 2015 but even so, was not prescribed glasses until 2016. This rather suggests that any visual impairment which he had before 2016 may not have been significant; and (d) the applicant gave his evidence without wearing glasses and did on two occasions read documents without the benefit of his glasses, because he had forgotten to bring them along. This tends to suggest that, even now, the visual impairment is not significant. 705 There is accordingly no basis on which the Court could conclude that a visual impairment has impaired the applicant's progress through his education, has resulted in his "poor literacy" or has adversely affected his prospects of successful re-integration into the community. That is to say, the applicant has not proved that the breaches of the duty of care he alleges have had any material causal consequence. 706 There is accordingly no basis upon which the Court should award damages "as a buffer for future economic loss", as counsel for the applicant contended. 707 The applicant's claim for damages in respect of visual impairment fails.
The Racial Discrimination Act claims 708 The applicant pleaded that conduct of the Territory (but not of the Superintendent) contravened two provisions in the RD Act and sought an order for compensation, pursuant to s 46PO(4)(d) of the AHRC Act, in respect of the pain and suffering and economic loss said to have been occasioned by those contraventions. 709 First, the applicant pleaded that three actions of the Territory were acts of direct discrimination in contravention of s 9(1), these being: (a) his transfer to Don Dale on 15 October 2011; (b) the refusal to transfer him back to ASYDC in November 2011 and the keeping of him at Don Dale thereafter; and (c) his transfer to DCC between 28 December 2011 and 2 January 2012. 710 Secondly, the applicant pleaded (in the alternative) that the second and a variant of the third of these actions constituted acts of indirect discrimination in contravention of s 9(1A) of the RD Act. 711 The applicant also invoked s 10 of the RD Act in relation to the three actions which were the subject of the s 9(1) claim. 712 In the final submissions, counsel for the applicant said that, in relation to the alleged contraventions of s 9(1), the applicant did not pursue the claim in respect of the transfer from ASYDC to Don Dale nor the claim in respect of the transfer to DCC. However, both these claims continued to be part of the applicant's s 10 claim.
Statutory provisions and principles 713 Section 9 of the RD Act proscribes in subs (1) forms of direct discrimination and proscribes in subs (1A) forms of indirect discrimination. It provides (relevantly): 9 Racial discrimination to be unlawful (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. (1A) Where: (a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and (b) the other person does not or cannot comply with the term, condition or requirement; and (c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life; the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin. (2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention. … 714 Section 10 of the RD Act provides (relevantly): 10 Rights to equality before the law (1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin. (2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention. … 715 As is apparent, the effect of s 9(1) is to proscribe conduct based on race or ethnic origin which has the effect of nullifying or impairing a person's enjoyment or exercise, on an equal footing, of any human right or fundamental freedom. Those rights or freedoms may be found in, amongst other places, the International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature on 21 December 1965 (entered into force 4 January 1969) (the CERD), this being the convention referred in s 9(2) and in other international instruments to which Australia is a party: Obieta v New South Wales Department of Education and Training [2007] FCA 86 at [214]. 716 In the present case, the applicant invoked Art 5 of the CERD and Art 8 of the Convention on the Rights of the Child, opened for signature on 20 November 1989 (entered into force 2 September 1990) (the CROC). Article 5 in the CERD provides (relevantly): In compliance with the fundamental obligations laid down in article 2 of this Convention, State Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: … (e) Economic, social and culture rights, in particular: … (vi) The right to equal participation in cultural activities. 717 Article 8 of the CROC provides: 1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference. 2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.
The claim of direct discrimination - s 9(1) 718 The elements of a contravention of s 9(1) of the RD Act for present purposes are: (a) the doing of an "act"; (b) which involves a distinction, exclusion, restriction or preference; (c) "based on" (relevantly) race or ethnic origin; (d) which has the purpose or effect; (e) of nullifying or impairing the recognition, enjoyment or exercise, on equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. 719 While I have identified these separate elements, I keep in mind the caution sounded by Allsop J, as his Honour then was, in Baird v Queensland [2006] FCAFC 162; (2006) 156 FCR 451 at [37] that s 9(1) is "one whole section and not a sum of finite elements" and that the provision "is to be interpreted in a holistic way rather than by reference to disembodied individual elements". The question ultimately is whether the impugned act involved a race-based distinction with one or other of the identified purposes or effects. 720 In Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1092, I summarised a number of matters of approach to the construction and application of s 9(1) which have been settled in the authorities, at [71]. That summary was adopted as correct by the Full Court in the judgment on the unsuccessful appeal: Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba (No 2) [2020] FCAFC 39; (2020) 275 FCR 669 at [28] and [47]. It is convenient to repeat the summary in these reasons, with a minor addition to which the Full Court referred at [47]: (a) section 9(1) should be interpreted broadly and beneficially in accordance with the fundamental purpose of the Convention to which it gives effect: Baird at [60]; (b) at its heart, the expression "any act involving a distinction, exclusion, restriction or preference" connotes a difference in treatment based on one or more of the stated characteristics: Gerhardy v Brown [1985] HCA 11, (1985) 159 CLR 70 at 118, 127-8 (Brennan J); Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [38] and, on appeal [2001] FCA 123, (2001) 105 FCR 56 at [29]; (c) although s 9(1) involves inherently elements of comparison, it does not require the identification of a particular comparator: Baird at [63]; Qantas Airways Limited v Gama [2008] FCAFC 69, (2008) 167 FCR 537 at [76]; Griffiths v Minister for Lands, Planning and Environment [2008] HCA 20, (2008) 235 CLR 232 at [7]; Wotton v State of Queensland (No 5) [2016] FCA 1457 at [559]-[560]; (d) a motive or intention to discriminate is not an element of a contravention; Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56, (1989) 168 CLR 165 at 176; Waters v Public Transport Corporation [1991] HCA 49, (1991) 173 CLR 349 at 360; Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8 at 33-34, 40-41, although evidence of a motive or intention may be evidence that the conduct was engaged in for the requisite purpose; (e) the operation of s 9 is not confined to acts undertaken pursuant to an obligation to do those acts: Baird at [62], Shurat HaDin, Israel Law Centre v Lynch (No 2) [2014] FCA 413 at [91]; (f) it is the act involving the distinction which must be based on race: Baird at [71]; and (g) the term "based on" does not connote a relationship of cause and effect, whether in a "but for" or in any other sense. It signifies that the discrimination must be "on" racial grounds: Gerhardy v Brown at 81 (Gibbs CJ). In Macedonian Teachers' Association at 27, Weinberg J said: [The] expression ["based on"] does not, of itself, suggest a relationship of cause and effect. It suggests rather a relationship of a different and broader kind. The links between the elements connected by this expression must, no doubt, be real and tangible, but not necessarily causal in nature. To ask whether the manner in which the complainant was treated is in any way referable to his race, colour, descent or national or ethnic origin is not necessarily to ask whether these characteristics "caused" the impugned conduct. Later, at 33, his Honour said: The requirement is one of sufficient connection. That there must be a close relationship between the designated characteristic and the impugned conduct is not in doubt - it is the nature of that relationship which is critical. This reasoning was endorsed on appeal: Victoria v Macedonian Teachers' Association of Victoria Inc [1999] FCA 1287; (1999) 91 FCR 47 at [8] and by the Full Court in Bropho v Western Australia [2008] FCAFC 100, (2008) 169 FCR 59 at [67]-[68]. It means that there must be an examination of the actual basis for the conduct, by considering the matters on which the conduct did turn: Wotton at [551].
Some preliminary comments 721 As noted, ultimately the applicant contended only that the refusal to transfer him to ASYDC which commenced in mid-November 2011 was a contravention of s 9(1). 722 Three of the elements of the applicant's s 9(1) claim are contentious: the requirement that the refusal to transfer him back to ASYDC involve a distinction, exclusion or restriction; the requirement that the distinction, exclusion or restriction be "based on" the applicant's race or ethnic origin; and the requirement that it impair a "human right" or "fundamental freedom". 723 The first requires that there be some difference in the treatment of the applicant. It is not easy to see that the refusal to re-transfer the applicant back to ASYDC involved any form of differential treatment of him in comparison with other detainees. The third involves a number of considerations taking into account that the applicant was required by law to be held in detention and he did not have a right (certainly not a right granted by the CERD or the CROC) to be held in any particular detention centre. 724 However, further consideration of these elements is not necessary because, as I will indicate in the next section of these reasons, the applicant has not, on any reasonable view, discharged the onus of establishing a differential act "based on" his race or ethnic origin.
The requirement that the differential act be "based on" the applicant's race 725 The applicant's difficulty in establishing that the impugned act involved a distinction, exclusion, restriction or preference "based on" race or ethnic origin commenced with his pleading. While the 6SC did plead in [122], that the impugned acts had been "based on the Aboriginality of the applicant" it did not contain any particularisation of that assertion. The particulars which the applicant did provide in [123] of the allegation in [122] were that, by keeping him at Don Dale, the Territory had failed to promote or protect his interests in maintaining connection with his family, his community and country (relying on ss 4(h), (i), (j) and (o) of the YJ Act; had failed to provide opportunities for him to participate in cultural activities with his family and community, being the rights for which Art 5(e)(vi) of the Convention and Art 8 of the CROC provide; and had failed to deal with him in a way which allowed him to be re-integrated into the community, as provided for in s 4(f) of the YJ Act and Art 5(e)(vi) of the CERD. As is apparent, these pleas were directed to the fourth and fifth elements of a s 9(1) contravention and not to the allegation that the dealings with him had been racially based. 726 In the applicant's opening submissions counsel submitted with respect to the applicant's transfer from ASYDC to Don Dale that "No Non-Aboriginal detainees were transferred". However, given the undisputed evidence at trial that there were no non-Aboriginal detainees at ASYDC at the time, this could not be a basis of discrimination. It was accordingly unsurprising that counsel did not repeat this submission in the closing submissions. 727 The written opening submissions, after referring to the distinctions alleged as summarised in [709], also said "they are distinctions based on the Applicant's race". Apart from the submission that no non-Aboriginal detainees had been transferred, there was no indication of how that was said to be so. 728 In the applicant's closing submissions, counsel submitted that it was the Territory's failure to comply with the YJ Act and the standards contained in the YDRC Manual which had resulted in a "distinction, exclusion or restriction". The provisions on which counsel relied have been set out earlier in these reasons. The matters to which counsel referred concerned the principles, practices and guidelines to be adopted in relation to detainees. Counsel submitted that these principles, practices and guidelines had not been applied in the detention of the applicant and that it was the departure from them which constituted the differential treatment. However, counsel did not contend, and certainly did not adduce evidence to establish, that the Territory had applied, or had failed to apply, the principles, practices and guidelines any differently in the case of the applicant than it had in relation to other detainees, or that it applied them, or failed to apply them, any differently in respect of Indigenous detainees than it did in the case of non-Indigenous detainees. The applicant did not allege a form of systemic racism. 729 Counsel's submission then continued: [89] It is submitted this differential treatment from the required standard is based on the Applicant's race. The First Respondent did not consider the needs of the Applicant as an Aboriginal youth. Further, the arbitrary nature of the decision suggests that it is not bona fide and may be viewed as capricious. Without a proper foundation for the decision, it is open to the Court to find that the act was based on the Applicant's race. [90] The failure of the First Respondent to transfer the Applicant back to Alice Springs removed him from his family and his culture. He was unable to participate in cultural activities and was unable to maintain the connection with his family, community and country that he had enjoyed in Alice Springs. 730 This suggested that the applicant's case was that, in the context of the alleged departure from the principles, practices and guidelines, three matters indicated that the refusal to transfer him back to ASYDC was referrable to his Aboriginality: his needs as an Aboriginal youth had not been considered; the decision had been non bona fide and capricious; and the decision lacked proper justification. The first self-evidently involves some awkwardness because it is a contention that, rather than the refusal being referrable to his Aboriginality, his needs as an Aboriginal Youth had not been considered at all. It also seemed not to sit entirely comfortably with the applicant's submission that, having been transferred from ASYDC for disciplinary reasons, the Superintendent had determined that he would be re-transferred only "as a reward" and with the submission that the applicant had been kept at Don Dale for "an ill-defined disciplinary purpose". 731 Counsel's presentation of this claim underwent some refinement in the final submissions. At one stage, counsel submitted that the applicant's race had not been considered at all but, when the Court raised the difficulty which that submission presented for the claim that the refusal to re-transfer had been "based on" his Aboriginality, counsel withdrew the submission. Counsel then submitted that the Court should infer that the refusal to return the applicant to ASYDC was based on his race because the matters on which the respondents' witnesses said they had relied were so "inappropriate, insufficiently based, mistaken [or] unreasonable" that the Court should infer that the true reason, or at least one of the true reasons, was the applicant's Aboriginality. In support of that submission, counsel emphasised that, from 2 November to 6 December 2011, the applicant had had the Low 1 classification which Mr Yaxley required; there had been capacity at ASYDC for him to be accommodated there; the applicant had agreed to the initial transfer to Don Dale on the basis of the representation that he would be there for 2-4 weeks; the respondents had been prepared to transfer the applicant to ASYDC over Christmas (justifying the inference, as I understood it, that there could not have been any fundamental difficulty in the applicant being at ASYDC); and that the operational considerations to which the respondents' witnesses had referred could not have been regarded as so significant as to preclude his return over Christmas. 732 This meant, in effect, that the applicant's claim that the refusal had been referrable to his race required the Court either to reject the respondents' evidence for the refusal of re-transfer or, if accepting the evidence, to characterise the reasons advanced as so inappropriate, insufficiently based or unreasonable that it should be inferred not only that they were not the true reasons, but that at least one of the true reasons was the applicant's Aboriginality. Self-evidently, counsel thereby set a high hurdle for the applicant to overcome.
The respondents' evidence 733 I commence by referring to the express evidence which those involved in the refusal to transfer gave concerning the applicant's claim that the refusal to re-transfer was racially-based. Mr Donald: I did not ever see a transfer decision made on the basis of a detainee's race. Almost all of the detainees were Indigenous. I can only recall one or two non-Indigenous detainees. Mr Yaxley: I never considered the race of a detainee as being of any relevance to a transfer decision … [T]he vast majority of detainees in detention were Indigenous. In his cross-examination, Mr Yaxley confirmed that the majority of the detainees were of Aboriginal descent and continued: I was always respectful of their culture and their wanting - their ability to be able to - always want to be in contact with their family and their cultural aspects to land, and we had numerous employees at the Don Dale centre who were of Aboriginal - youth workers so there was always conversations about Aboriginal culture in that sense. Mr Clee: XXN: Is [the applicant's] Indigenous heritage something you would take into account? A: No. It's not. 734 In summarised form, Mr Brown's evidence was that, in relation to his approval for the applicant's return to Alice Springs in April 2012, he had not discussed the applicant's Aboriginality with anyone; that he had not regarded his Aboriginality as relevant; that no one else had suggested to him that the applicant's Aboriginality was a reason why the proposal should not be approved or why he should not be returned to ASYDC to serve the rest of his sentence; and that he had not thought that the applicant's Aboriginality was a reason why he should not go back to Alice Springs. He did say that he had regarded the applicant's Aboriginality as relevant to the question of whether he should be returned to ASYDC for the balance of his sentence because the applicant's family were from Alice Springs and it would be good for the applicant to be "close to his family and country". Mr Brown also said that he had never enquired into whether there were non-Aboriginal detainees at Don Dale "because I treat them all as equal". 735 None of the respondents' witnesses was challenged about the evidence just recited or summarised. In particular, it was not suggested that, despite their claims, they had in some way taken account of the applicant's Aboriginality in deciding against re-transfer to ASYDC. Mr Brown's evidence was particularly cogent because he himself is Aboriginal. 736 I have previously stated my view that the evidence from these witnesses was reliable, and repeat that now. In particular, I accept the evidence just recited and, in Mr Brown's case, summarised.
Evaluation of the s 9(1) claim 737 Apart from not challenging the express evidence of the respondents' witnesses on this issue, the applicant's counsel did not point to any other circumstance which might have indicated that the decision not to return the applicant to ASYDC could have been racially based. 738 Earlier, when determining the claim in negligence, I make findings as to Mr Yaxley's reasons for refusing the transfer of the applicant back to ASYDC (other than for the Christmas visit) and for keeping him at Don Dale during 2012. These were the applicant's history of misbehaviour at ASYDC and its implications for the applicant's management and the maintenance of good order in the detention centres, the considerations to which Mr Clee referred in his email of 13 November, the matters to which Ms Blakemore (the Case Manager) referred in her email of 14 November, issues concerning the capacity at ASYDC, and the additional facilities and services available to the applicant at Don Dale which made his continued detention there appropriate. None of those reasons was referrable to the applicant's race. Moreover, none of those matters could be described as arbitrary, capricious or lacking a sufficient justification. To the contrary, they are rational and plausible. 739 Contrary to the applicant's submission, the respondents' willingness to return the applicant to ASYDC over Christmas is not a reflection of arbitrariness or capriciousness. It appears instead to be based on a recognition that the applicant (like many in the community generally) would wish to be close to his family at Christmas. Mr Yaxley's willingness to facilitate the applicant having closer contact at that time does not, to my mind, suggest any inconsistency with his decision that Don Dale was the appropriate place for the longer term detention of the applicant. 740 Further, it is not surprising that ASYDC had greater capacity over Christmas, given that it is common experience that the numbers of persons held in custody on remand tends to decline at Christmas. 741 This means that there is no basis upon which the Court could draw the inference that the refusal to return the applicant to ASYDC, even if involving a distinction, exclusion or restriction of the requisite kind, was referrable to the applicant's race or ethnic origin. 742 Accordingly, the applicant's claim that the Territory contravened s 9(1) of the RD Act fails.
The claim of indirect discrimination - s 9(1A) 743 Section 9(1A) of the RD Act has been set out earlier in these reasons. The elements of a s 9(1A) contravention are (relevantly): (a) a person requiring another to comply with a term, condition or requirement; (b) the term, condition or requirement is not reasonable having regard to the circumstances of the case; (c) the other person does not or cannot comply with the term, condition or requirement; and (d) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by (relevantly) Aboriginal persons of any human right or fundament freedom in the political, economic, social, cultural or any other field of public life. 744 When those conditions exist, the act of requiring the compliance is to be treated, for the purposes of Pt 2 of the RD Act, as an act involving a distinction based on, or an act done by reason of, (relevantly) the person's Aboriginality. 745 As previously noted, the applicant makes a claim of indirect discrimination in contravention s 9(1A) in respect of two "acts". There were the refusal to retransfer him to ASYDC and the keeping of him at DCC until "arrangements suitable to the officers had been made to detain him in isolation at Don Dale". It is convenient to deal with these claims separately.
The refusal to transfer the applicant to ASYDC 746 The applicant pleaded that the requirement that he obtain "a lower security classification" before he would be allowed to return to ASYDC constituted "a term, condition or requirement" of the requisite kind. I did not understand the respondents to contest that that was so. 747 However, the second, third and fourth elements of a s 9(1A) contravention are contentious. 748 The applicant's pleaded case was that the requirement that he obtain "a lower security classification" was not reasonable because it was "arbitrary, disproportionate, involved infringements of the rights of the applicant and caused the applicant to suffer harm and loss". As is apparent, this was a plea of conclusions rather than a plea of material facts supporting a conclusion of unreasonableness. 749 The applicant's subjective belief that, because he had come to Don Dale with a Medium security classification, he should be entitled to return to ASYDC with the same classification is not matter establishing objective unreasonableness in the condition imposed by Mr Yaxley. 750 I have rejected the applicant's submissions that the refusal to return him to ASYDC was arbitrary, capricious or lacked a sufficient justification. Likewise, I reject the applicant's contention that a requirement that, in effect, he have a Low 1 classification before being returned should be characterised as arbitrary, capricious or lacking a proper justification. To the contrary, it was a sensible requirement directed to the good management of the detention centres. It is understandable that Mr Yaxley wanted to see sustained good behaviour from the applicant before he was returned to ASYDC, in which it was less easy to manage poor behaviour by a detainee, especially when such poor behaviour could make the management of other detainees more difficult. 751 Some of the submissions on the applicant's behalf referred to the "punishment/reward dynamic" and seemed to suggest that this was inappropriate. To the extent that that was submitted, I do not, for the reasons given in relation to the applicant's claim of a breach of the duty of care, accept it. I note again that the provision of rewards is a commonplace method of encouraging good behaviour. The withdrawal of the reward is also a commonplace means of making the incentive "real". 752 Accordingly, the applicant does not make out the "unreasonableness" element of a contravention of s 9(1A). 753 The applicant's contention with respect to the third s 9(1A) element, namely, that the applicant did not or could not comply with the condition, cannot be sustained either. It is not supported by the evidence. The applicant was, as a matter of fact, able to obtain a lower security classification and did, as a matter of fact, have a Low 1 classification between 2 November and 6 December 2011, between 20 March and 18 April 2012 and from 10 July 2012 until he left youth detention on 25 August 2012. The security classifications were, as noted earlier in these reasons, determined in large part by the detainee's own behaviour. The applicant was able to control his own behaviour and therefore able to influence his security classification. 754 Accordingly, this element of a s 9(1A) contravention is not made out either. This makes it unnecessary to consider the fourth element which, for the reasons previously given, is problematic.
The keeping of the applicant at DCC 755 In the final submissions, counsel contended that the implementation of the IMP adopted on 28 December 2011 which required the applicant to be isolated on his return to Don Dale was a term or condition to which s 9(1A) referred. This seemed to be a slightly different claim from the pleaded claim that s 9(1A) had been contravened by reason of the imposition of a "term, condition or requirement that, before the applicant would be released from DCC to Don Dale, arrangements suitable to the officers had to be made to detain him in isolation at Don Dale". I note that there was no evidence at all that arrangements had to be made for the applicant's isolation at Don Dale before he could be released from DCC. 756 Counsel submitted that: [107] The implementation of the management plan requiring isolation on the Applicant's return to Don Dale was the term or condition. It was not reasonable in circumstances where it does not attempt to improve the behaviour of the applicant and can be seen as a punishment. It was not communicated to the applicant until his return to Don Dale and he could not comply with a condition that was imposed on him without his knowledge. 757 I made findings about the IMP earlier in these reasons, at [193]. In particular, I recorded that Mr Middlebrook as Director, had issued a "directive" on 31 August 2011 to the effect that detainees who "continually pose a threat to [others] and require a greater degree of supervision and management than general [detainees]" should be subject to an IMP. Plainly, having regard to the applicant's conduct on 26 December 2011 and subsequently, he was such a detainee. 758 It is accordingly unsurprising that an IMP was prepared and imposed for the applicant on 28 December 2011. The IMP itself recorded that: This [IMP] has been designed to address [the applicant's] recent behaviours which include threatening staff with a weapon, namely a steel bar support/pipe, extreme non-compliant behaviour, inciting disruptive behaviour, and attempted escape, requiring the presence of police and the prison Emergency Response Group. [The applicant] requires a management regime that will ensure that his current conduct will be negated by a positive performance based set of disciplines. 759 I accept that the detention of the applicant in accordance with the terms of the IMP involved terms, conditions and restrictions. 760 The applicant has difficulty, however, in establishing the "unreasonableness" requirement. 761 Counsel's submissions emphasised that the IMP had been implemented for the applicant on his return to Don Dale on 2 January 2012 without Mr Yaxley having made any further assessment of the applicant while he was in DCC, or on his return to Don Dale. There was also a complaint that the IMP had been imposed without the applicant's knowledge. The suggestion seemed to be that the applicant should himself have been involved in the preparation of the IMP. 762 While it may well have been desirable for Mr Yaxley to have made, or have caused to be made, an up to date assessment before implementing the IMP, and it may have been reasonable to confer with the applicant regarding the IMP, it cannot reasonably be said that this made the conditions of the IMP, in themselves, unreasonable. Nor do I consider that this made the implementation of the IMP unreasonable. The circumstance that the applicant was serving a sentence of detention cannot be overlooked. Nor can his extreme behaviour on Boxing Day and the consequences of that behaviour. Amongst other things, he had threatened to kill Mr Yaxley, and with Mr Lawrie, had been party to conduct seemingly directed to that end. Moreover, it is not as though the applicant was singled out as other participants in the Boxing Day disturbance were also detained in the BMU at the same time as the applicant. It was appropriate for Mr Yaxley as Superintendent to take firm action given the applicant's behaviour. 763 Accordingly, the applicant does not establish the unreasonableness element of the claimed s 9(1A) contravention. 764 In any event, the applicant did comply (albeit involuntarily) with the requirements of the IMP. 765 Finally, counsel's submissions did not indicate how the implementation of the IMP had had the effect of impairing the enjoyment by Aboriginal persons of any human right of fundamental freedom, on an equal footing with others. 766 Accordingly, the applicant's s 9(1A) claim fails.
The s 10 claim 767 The applicant's pleading of his claim pursuant to s 10 of the RD Act was as follows: [125] [B]y reason of the Act, the Regulations and their manner of implementation by the [Territory], the applicant, as an Aboriginal person, did not enjoy a right enjoyed by non-Aboriginal persons or enjoyed that right to a lesser extent than non-Aboriginal persons when, by force of s 10 of the RD Act, the applicant was entitled to enjoy that right to the same extent as non-Aboriginal persons ("the section 10 claim"). 768 The applicant then referred to the particulars he had pleaded to support his s 9(1) and (1A) claims. 769 In the final submissions, counsel articulated the s 10 claim as follows: [The Territory] has to apply the law equally to … all detainees. Section 10 looks at the application of that law, and whether or not persons of a particular race don't enjoy that to the same extent. So, your Honour, it's an alternate claim. It fits within the same facts and circumstances as we've pleaded under ss 9(1) and 9(1A). We say that, by exercising responsibilities under the [YJ Act] and under the Regulations, that the way that [the Territory] has dealt with the applicant has not met the obligations that it has under that law and that Regulation, and that it has resulted in the applicant being isolated from his family, community and country, and losing the right to participate in the cultural activity. So, basically, your Honour, there's the ability of [the Territory] to manage its facilities. In the management of those, the administration of the [YJ Act], it has engaged in acts, such as the refusal to transfer the applicant back to the [ASYDC], that has resulted in the applicant receiving less favourable treatment than he would if he had been non-Indigenous. 770 With due respect to counsel, this submission was based on a misunderstanding of the effect of s 10. That effect was explained by Mason J in Gerhardy v Brown at 98-9: When racial discrimination proceeds from a prohibition in a State law directed to persons of a particular race, forbidding them from enjoying a human right or fundamental freedom enjoyed by persons of another race, by virtue of that State law, s 10 confers a right on the persons prohibited by State law to enjoy the human right or fundamental freedom enjoyed by persons of that other race. This necessarily results in an inconsistency between s 10 and the prohibition contained in the State law. This passage was cited by Gleeson CJ, Gaudron, Gummow and Hayne JJ in Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [107]. 771 In short, s 10 operates to invalidate a law of the Commonwealth, State or Territory which has a racially discriminatory effect. It also operates to ensure that persons affected by the discriminatory effect of such a law may enjoy the same rights, and to the same extent, as are enjoyed by persons of another race, colour or national or ethnic origin. 772 When questioned, counsel was unable to identify a provision in the YJ Act, or in the Regulations which had the discriminatory effect on which s 10 operates. Counsel did not, in the 6SC or in the submissions, articulate the terms of an order which the Court could make with regard to the application of s 10. Instead, counsel's submissions seemed to assume that s 10 could, in some way, be applied as an alternative to s 9(1) and (1A). That is neither the purpose nor effect of s 10. 773 The claim pursuant to s 10 of the RD Act fails.
Conclusion on the RD Act claims 774 For these reasons, all of the applicant's RD Act claims fail.
The defence of the Territory: Superintendents exercise an independent statutory duty 775 As noted at the commencement of these reasons, the respondents raised three substantive defences: that the Territory cannot be liable at all as superintendents exercise an independent statutory duty; the good faith defence for which s 215(2) of the YJ Act provides; and time bar defences. I will address these in turn. 776 The respondents also raised contributory negligence as a partial defence to the applicant's claims but made no submissions about this at the trial. I took it not to have been pursued. 777 The respondents submitted that all of the applicant's claims against the Territory must fail because the YJ Act vests in the superintendent of a detention centre an independent statutory authority and duty for the discipline, safe custody, health, management and control of detainees and for the good order of the detention centre, with the consequence that it could not be directly or vicariously liable for breaches of duty by a superintendent. The respondents thereby sought to invoke the common law principle, commonly invoked with respect to police officers, that the powers exercised by persons who have vested in them independent authority are not exercised on behalf of another, so that, statutory intervention apart, the State is not liable for the torts committed in the exercise of the power: Enever v The King [1906] HCA 3, (1906) 3 CLR 969; Oceanic Crest Shipping Co v Pilbara Habour Services Pty Ltd [1986] HCA 34, (1986) 160 CLR 626. 778 Enever concerned the liability of the State of Tasmania for the wrongful arrest of a person by a police constable. In holding that the State was not liable, Griffith CJ said at 977: [T]he powers of a constable, qua peace officer, whether conferred by common or statute law, are exercised by him by virtue of his office, and cannot be exercised on the responsibility of any person but himself … A constable … when acting as a peace officer, is not exercising a delegated authority, but an original authority, and the general law of agency has no application. 779 Barton J stated at 982: It is contended on behalf of the appellant that he was in that respect and on that occasion acting as a servant of the Government in such a sense that the maxim respondeat superior applies. I have come to the conclusion that that decision cannot be sustained. For the maxim to apply, it appears to be plain that the person for whose act it is sought to attach responsibility to the superior, must have been under the control of that superior at the time of the doing of the act. 780 O'Connor J at 990 referred to the explanation of Erle CJ in Tobin v The Queen (1864) 16 CB (NS) 310 at 350 that "the liability of a master for the act of his servant attaches in the case where the will of the master directs both the act to be done and the agent who is to do it". 781 In Little v Commonwealth [1947] HCA 24; (1947) 75 CLR 94 at 114, Dixon J referred to the independent duty principle as: … The general doctrine, which has been specifically applied to constables of police making arrests … that any public officer whom the law charges with a discretion and responsibility in the execution of an independent legal duty is alone responsible for tortious acts which he may commit in the course of his office and that for such acts the government or body which he serves or which appointed him incurs no vicarious liability … (Citations omitted) 782 In Oceanic Crest Shipping, Gibbs CJ said, at 637, that the question is: [W]hether the person who committed the tort was acting in the performance (or supposed performance) of a duty imposed by law (either by statute or by common law) or whether his authority to act was derived from his employment. 783 The respondents noted, correctly, that this principle has been applied in respect of police officers in the Northern Territory: Lackersteen v Jones [1988] NTSC 60, (1988) 92 FLR 6 at 45; Johnson v Northern Territory of Australia [2014] NTSC 18, (2014) 285 FLR 227 at [9]. 784 The respondents also relied on Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714. One of the issues in that case was whether the State of New South Wales could be liable for the false imprisonment of a person who had been kept in prison longer than was authorised. This was in the context that the Corrective Services Commission had been established as an independent statutory instrumentality with responsibility for the control and management of prisons. Clarke JA, with whom Priestley JA agreed, held at 741 that it was the Commission, and not the State of New South Wales, which was liable: While I do not think that the present case is a clear one I have come to the conclusion that in so far as the statute incorporates the [Commission], charges it with the management of prisons, grants it the power to direct the services of prison officers and excludes individuals but not the corporation from liability to action in respect of, at least, its contracts the statute should be seen as indicating that actions arising from the management of prisons or otherwise within the sphere of the [Commission] should be taken against it. I find some support in this view from the fact that while prison officers are public servants they work under the direct control and direction of the [Commission]. This arises by virtue of the vesting of the management of prisons in the [Commission], and the provisions of s 31. Consequently in cases, unlike the present, of vicarious liability in my opinion it is the [Commission] and not the government, which is vicariously liable for the tortious misconduct of prison officers. The provisions of the Act should be seen as creating a relationship between the [Commission] and prison officers which renders it liable in appropriate circumstances for the wrongs of those officers. 785 However, as Clarke JA noted in Cowell at 740, the question is at its heart one of statutory construction. 786 Counsel for the respondents drew the Court's attention to ss 5 and 16 of the Crown Proceedings Act 1993 (NT) which provide for the bringing of proceedings against the Crown in the right of the Northern Territory. It was not suggested by the applicant, however, that those provisions precluded the operation of the Enever principle, if it is otherwise applicable. 787 Apart from the authorities just mentioned, the Court was not taken to other decisions concerning the application of the Enever principle. In fact, the submissions which the Court received on the principle were relatively brief. I note, however, that the principle has been subject to some critique - see the Report of the Law Reform Commission on Proceedings by and against the Crown, Parliament of NSW, 1975 at pp 40-64. 788 As the basis for the submission that the Enever principle applied to superintendents, the respondents referred to the duties imposed on superintendents by Pt 8 of the YJ Act (which contains ss 148-149 and 151-153 to which reference has already been made) and to Pt 10. The latter Part imposes obligations on the superintendent with respect to access of detainees to a medical practitioner for the purposes of medical consultation and treatment. 789 It is the case that the YJ Act imposes duties and responsibilities on superintendents and vests them with the powers which are necessary and convenient for the performance of their functions. However, a number of features of the statutory scheme under the YJ Act suggest that superintendents do not have the kind of independent discretion and responsibility in the discharge of their duties which attracts the application of the Enever principle. 790 First, the YJ Act does not establish the office of superintendent as an office existing independently of the person occupying the position from time to time. Further, a superintendent of a detention centre must be an employee within the meaning of the PSEM Act with the consequence that he or she remains subject to the provisions of that Act concerning the employment, control, discipline and management of employees in the public sector of the Territory. In particular, the superintendent is subject to the control and direction of the Chief Executive Officer (CEO) of the relevant agency. Section 24 of the PSEM dealing with the functions of a CEO of an "agency" such as the Department of Correctional services is particularly pertinent: 24 Functions of Chief Executive Officers (1) The functions of the Chief Executive Officer of an Agency are to manage, and provide strategic leadership of, the Agency. (2) The Chief Executive Officer must exercise those functions in a way that: (a) is responsive to government policies and priorities; and (b) upholds the public sector principles; and (c) complies with all applicable: (i) laws (including the Employment Instructions); and (ii) determinations and directions of the Commissioner; and (iii) decisions of an appeal board. (3) As part of performing those functions, the Chief Executive Officer is responsible for the following: (a) directing the employees employed in the Agency; (b) ensuring the Agency attains any objectives set by the appropriate minister; (c) devising organisational structures and arrangements for the Agency; (d) assigning designations to employees in the Agency and varying those designations in accordance with: (i) award requirements; and (ii) designation systems, standards and procedures determined by the Commissioner or, if no systems, standards or procedures have been determined, with the approval of the Commissioner; within the limits of the amount that has been appropriated or is otherwise available for the remuneration of employees in the Agency; (e) assigning duties to be performed by each employee in the Agency; (f) devising and implementing employee performance management and development systems for the Agency; (g) assisting employees in the Agency to undertake relevant training, education and development programs; (h) devising and implementing financial and management plans for the Agency and monitoring the Agency's financial and administrative performance; (i) devising and implementing record keeping and information management systems for the Agency; (j) devising and implementing programs to ensure that employees have equal employment opportunities in accordance with the human resource management principle; (k) ensuring the application in the Agency of appropriate occupational health and safety standards and programs. (4) A Chief Executive Officer also has any other functions conferred under this or any other Act. 791 As is apparent, the responsibilities of a CEO under subs (3) are extensive. There is no indication that these responsibilities are in some way qualified by the duties imposed on superintendents by the YJ Act. They serve to indicate the power and duties of the relevant CEO with respect to the functioning of detention centres. 792 Counsel for the respondents submitted that the CEO's general power to direct employees contained in s 24 did not "deprive" a superintendent of the statutory duty to exercise the specific functions imposed by the YJ Act. So much may be accepted but it does not gainsay that superintendents are to perform the statutory duties while subject to the management, direction and control of the CEO. 793 Counsel referred, without elaboration, to Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1. It is not immediately apparent how the Anthony Hordern principle could apply. At least, as stated by Gavan Duffy CJ and Dixon J in Anthony Hordern, the principle is: When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same Instrument which might otherwise have been relied upon for the same power. 794 While the YJ Act vests specific responsibilities in superintendents, it does not indicate either explicitly or implicitly that those functions are to be discharged independently of the management, direction and control of the CEO. To the contrary, the YJ Act contemplates expressly that, in a number of respects, the exercise by superintendents of their functions in relation to operational matters is subject to the exercise of discretions by the Director - see: section 119 - granting a detainee leave of absence; section 153(5) - approving the isolation of a detainee for a period exceeding 24 hours but less than 72 hours; section 164 - directing that a detainee who turns 18 should not be transferred to an adult prison; section 176 - ordering detainees to undergo medical examinations and treatment which the Director considers necessary; and section 178 - directing a superintendent to move a detainee to hospital. 795 Further, s 217 of the YJ Act vests a regulation making power of a conventional kind in the Administrator of the Northern Territory. Pertinently for present purposes, s 217(3) provides that the Regulations may authorise the Director or a superintendent to make a determination in relation to: (a) the management and operation of a detention centre; or (b) the maintaining of order within a detention centre; or (c) a grievance or complaint of a detainee; or (d) the health, welfare, safe custody and protection of a detainee. 796 The wide range of determinations which may be made by a Director in the exercise of that power is obvious. Such determinations may result in the exercise by a superintendent of his or her duties and discretions being circumscribed in a wide range of circumstances. By way of example, reg 30 provides that the Director or a superintendent may make a determination in relation to any aspect of the management and operation of the detention centre. Regulation 30(2) provides that such a determination may relate to the conduct of persons (detainees or otherwise) within the detention centre. 797 Mr Middlebrook confirmed that he or his Assistant Director had from time to time given "guidance" or "directions" to superintendents. Such directions were on occasion "standing directions" and on other occasions of an "ad hoc" kind. Six of these written directions were in evidence. There were also numerous examples in the evidence of the Director or the Director's proxy providing oral directions or guidance to Mr Yaxley in the performance of his duties as superintendent. 798 To my mind these are strong indications that the superintendents do not have the kind of independent statutory authority or discretion which attracts the Enever principle, let alone that the Territory has divested itself of authority or discretion with respect to detention. 799 Secondly, but perhaps of less significance, superintendents remain subject to Ministerial supervision. Section 168 of the YJ Act provides that the Minister, or a person authorised by the Minister, may enter and inspect a detention centre at any reasonable time. This is not just for the purposes of inspecting the physical condition of a detention centre as the superintendent must, on the request of the Minister or an authorised person, produce for inspection the Register containing the particulars of every detainee in the detention centre and give to the Minister or the authorised person any information in relation to any detainee which is sought (s 168(3)). In addition, Pt 9 of the YJ Act provides that the Minister may appoint a person to be an "official visitor" for a detention centre. By s 170, an official visitor must enquire into the treatment and behaviour of, and the conditions for, detainees in the detention centre for which the official visitor is appointed and must, as soon as practicable after each visit, provide a report in writing to the Minister. 800 Thirdly, superintendents do not have complete responsibility for detention centres. They are not given any direct responsibility with respect to the infrastructure of detention centres, nor the power to determine the number, qualifications and character of the staff engaged in them. Such staff are also subject to the PSEM Act, so that the superintendent does not have complete control over them and their discipline. There was no suggestion in the evidence that superintendents were given a budget with respect to the operation of a detention centre. 801 Fourthly, s 215 of the YJ Act, as in force at times relevant presently, is pertinent: 215 Immunity (1) This section applies to a person who is or has been: (a) the Director; or (b) a superintendent of a detention centre; or (c) a probation officer; or (d) a surveillance officer; or (e) an employee, within the meaning of the Public Sector Employment and Management Act, performing functions under this Act. (2) The person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise or purported exercise of a power, or the performance or purported performance of a function, under this Act. (3) Subsection (2) does not affect any liability the Territory would, apart from that subsection, have for the act or omission. (4) No proceedings may be commenced in relation to an act done or omitted to be done by the person under this Act more than 6 months after the act was done or the omission occurred. 802 As is apparent, the effect of s 215(1)(b) and (2) is to grant an immunity to superintendents in respect of acts or omissions occurring in good faith in the exercise or purported exercise of a power under the YJ Act. The respondents rely on these provisions in respect of the claims made against the Superintendent and I will return to them. Section 215 is pertinent presently for two reasons. The first is that subs (3) provides expressly that subs (2) does not affect any liability the Territory would, apart from that subsection, have for an act or omission. This seems to be an express recognition that the Territory may have some liability in respect of the acts or omissions of the persons listed in subs (1). If the legislative intention had been to grant immunity from action to everyone, including the Territory itself, it would have been easy and natural in the enactment of s 215 to have said so. 803 The second way in which s 215 is relevant is this: s 215(2) has the effect that a superintendent may be sued only in respect of acts or omissions occurring with an absence of good faith. The circumstances in which that will be so are likely to be limited. That being so, if the Territory is not directly or vicariously liable for the acts and omissions of superintendents, the YJ Act would effect a significant impairment of the ability of those wronged by a tort or breach of statutory duty of a superintendent to obtain damages. One would expect plain words to be used if that was the legislative intention: Australian National Airlines Commission v Newman [1987] HCA 9, (1987) 162 CLR 466 at 471; Puntoriero v Water Administration Ministerial Corporation [1999] HCA 45, (1999) 199 CLR 575 at [34] (McHugh J), but cf Harrison v Melhem [2008] NSWCA 67, (2008) 72 NSWLR 350 at [2], [209]-[221] and the authorities cited therein. Yet the YJ Act does not contain any express provision to the effect that the Territory may not be sued and will not be vicariously liable in respect of matters for which it makes superintendents responsible. 804 Finally, and perhaps as a minor consideration, it is to be noted that the YJ Act does not establish the superintendent as a corporate sole or contain any provision to the effect that superintendents can sue in relation to matters concerning the performance of their duties. 805 In my opinion, these matters indicate that the purpose of ss 148-149 and 151-153 is to identify a particular person who has the responsibility for the conduct of a detention centre but not to grant the superintendent the kind of independent statutory authority or discretion which attracts the Enever principle. Superintendents are, by reason of their employment as such, fixed with statutory responsibilities to be exercised on behalf of the Territory, and given a form of immunity with respect to the exercise of those responsibilities. In vesting those responsibilities in superintendents, the Territory has not divested itself of its own responsibilities with respect to the detention of youths sentenced to detention or remanded in custody. It maintains close control and supervision of detention centres and of the manner in which superintendents discharge their duties. 806 As noted, the submissions made by the respondents in support of this defence were brief. For the reasons just stated, the defence fails. I am satisfied that the Territory may be found liable, both directly and vicariously, for the torts alleged by the applicant.
The good faith defence: s 215(2) of the YJ Act 807 Section 215 of the YJ Act, set out earlier in these reasons, provides in subs (2) that a person identified in subs (1), including a superintendent of a detention centre, is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise of a power or the performance of a function under the YJ Act. 808 The respondents invoked s 215(2) by pleading in [141] of their Second Defence: At all material times, officers were acting in good faith in the exercise or purported exercise of a power, or the performance or purported performance of a function, under the [YJ Act] and the immunity under [YJ Act] section 215(2) applies in answer to all of the claims. 809 In his Reply, the applicant pleaded that s 215(2) had no application to his claims against the Territory or to his claims under the RD Act. The pleading then continued: [T]he Applicant: … (c) denies, in relation to the causes of action pleaded against the [Superintendent] that [he] acted in good faith in conducting himself as alleged; and (d) otherwise does not admit the pleading. 810 Neither of these pleadings contained an allegation of facts or matters said to support a conclusion that the conduct impugned by the applicant had been done with, or with an absence of, good faith by the Superintendent. Nor did the parties' opening submissions. This was unfortunate because it meant that there was no proper joining of issues in relation to the good faith defence. 811 In the closing submissions, counsel for the applicant submitted that it is for the Superintendent to identify the "relevant objectives for his actions" and to show that they are "consistent with the objects, principles and functions set out in the YJ Act". He also noted that the respondents had not provided "particularisation as to what acts it [is] said the Superintendent did that would attract [the s 215] immunity". Counsel did not elaborate this submission but I understood him to be contending in part that the respondents had not pleaded the particular conduct which they claimed had been performed in good faith and/or had not included a plea that the delegates of the Superintendent had acted with good faith. I indicate now that I do not accept this particular submission as [141] of the Second Defence set out earlier, makes apparent that the respondents assert that the s 215(2) immunity applies in relation to all of the conduct of all the officers impugned by the applicant in the proceedings. The applicant's submission may also, in part, have been a contention that the respondents should have, but had not, particularised the matters and circumstances relied on for the pleas that each of the impugned acts had been performed in good faith. 812 However, counsel then identified in final submissions some conduct which the applicant contended had not been performed with good faith: [198] The evidence supports a finding that the Second Respondent had determined to maintain the detention of the Applicant in Darwin after he was transferred in October 2011 to impose discipline upon him. The Second Respondent's admitted statement to the Applicant's grandmother that he had determined to show the Applicant that the Applicant was not "the top dog" is telling. [199] The evidence supports a finding that the Second Respondent's decision to maintain the Applicant's detention in Don Dale was concerned only with operational matters rather than considering, properly or at all, the objects and purposes of the YJ Act in the case of the Applicant. In that respect, the YJ Act expressly required the Second Respondent to consider the Applicant's connection with his family and Country. There is simply no evidence that the Second Respondent ever considered those objects and principles in the case of the Applicant. Accordingly, the ongoing separation of the Applicant from his family could not have been authorised by the YJ Act. (Citations omitted) 813 As is apparent, the applicant challenged the availability of the good faith defence with specific reference to the refusal to transfer the applicant back to ASYDC. 814 In their final submissions, after referring to two authorities concerning an immunity for acts done in good faith (to which I shall return), the respondents submitted: [24] The object of s 215 of the YJA is to limit liability arising from officers engaged in the detention of youths against their will, and the use of force to maintain the order and safety of detention centres. The YJA authorises conduct that would otherwise be false imprisonment, battery or assault. [25] In respect of all the issues the subject of the applicant's claims, the respondents' officers acted honestly and without malice. Despite the applicant's appalling behaviour on 25/26 December 2011, the Don Dale staff spoke relatively fondly of him. For the reasons given in more detail below in answer to each of the claims, it is submitted that the Court would be comfortably satisfied that all the officers involved in this case acted in good faith. (Emphasis added) 815 The respondents also submitted that there was no evidence upon which the Court could find that "the officers had acted dishonestly or [had been] motivated by malice towards the applicant or by failing to give any consideration at all to the requirements of the [YJ Act]". Counsel referred to Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290 in which the Full Court (Gummow, Hill and Drummond JJ) said at 300: The statutory concept of "good faith" with which the legislation in this case is concerned calls for more than honest ineptitude. There must be a real attempt by the authority to answer the request for information at least by recourse to the materials available to the authority. (Emphasis added) Counsel contended that the Court should be "comfortably satisfied" that that standard of good faith was met and submitted that: (a) it had not been suggested to any of the respondents' witnesses that they had failed to act in good faith; and (b) the s 215 immunity also extends to the applicant's RD Act claims. 816 As is apparent, the respondents' submissions concerning the good faith defence were directed to all the conduct impugned by the applicant.
Consideration 817 Analogues of s 215(2) have been discussed in a number of authorities. 818 In Little, Dixon J said, at 108, of expressions such as "[an] act done in pursuance of this section" in the grant of an immunity that: Such enactments have always been construed as giving protection, not where the provisions of the statute have been followed, for then protection would be unnecessary, but where an illegality has been committed by a person honestly acting in the supposed course of the duties or authorities arising from the enactment. 819 His Honour then referred at 109 to the difficulties in defining the exact conditions required to qualify for protection under such provisions and, after reviewing a number of authorities, concluded at 112: The truth is that a man acts in pursuance of a statutory provision when he is honestly engaged in a course of action that falls within the general purpose of the provision. The explanation of his failure to keep within his authority or comply with the conditions governing its exercise may lie in mistake of fact, default in care or judgment, or ignorance or mistake of law. But these are reasons which explain why he needs the protection of the provision and may at the same time justify the conclusion that he acted bona fide in the course he adopted and that it amounted to an attempt to do what is in fact within the purpose of the substantive enactment. (Emphasis added) 820 This suggests that good faith in this context is directed both to the ends to which the actor's conduct was directed and to the means he or she adopted to achieve these ends. 821 In Bankstown City Council v Alamdo Holdings Pty Ltd [2005] HCA 46; (2005) 223 CLR 660, the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) also referred to the difficulty in defining the circumstances in which the immunity granted by a counterpart of s 215(2) may apply, at [50]: [G]iven the range of advice, acts and omissions to which s 733(1) may apply, what is required for something to be done or omitted in good faith may vary from one case to the next. This makes it unwise, if not impossible, to place a definitive gloss upon the words of the statute. 822 However, some propositions emerge from the authorities: (a) provisions such as s 215(2) are generally construed strictly: Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71, (1961) 109 CLR 105 at 116 (Kitto J); Puntoriero at [33]-[37]; (b) something more than the mere commission of a tort is necessary because, unless there be a tort, there would be no liability attracting the need for good faith defence for which the statute provides: Little at 108; (c) depending on context, the term "good faith" may be a reference to an actual state of mind, irrespective of the quality or character of the causes which induce it, so that something will be done, or omitted to be done, in good faith if the party was honest, albeit careless. Alternatively, the term may be a reference to an objective standard, ie, requiring the exercise of the caution and diligence to be expected of an honest person of ordinary prudence: Mid Density Developments at 298; Cannane v J Cannane Pty Ltd [1998] HCA 26, (1998) 192 CLR 557 at 596 (Kirby J in dissent); (d) a failure to attempt to discharge the function or duties conscientiously may amount to a lack of good faith, as may a conscious ignoring of the means by which a statutory duty or function may be discharged: Alamdo at [49]; (e) there may be a want of good faith even though the respondent has not acted dishonestly: Alamdo at [49]; (f) there will be an absence of good faith if the person had no intention of exercising the power for the purpose for which it was granted, or had no honest belief in a state of facts which would have excused the wrongful act: Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 606; (g) good faith may require a state of mind or knowledge other than personal honesty and absence of malice: Alamdo at [50]; Mid Density Developments at 299. As already noted, in the latter case it was said, at 300, that good faith requires more than "honest ineptitude". In Mid Density Developments, that "something more" was lacking because of the absence of a "real attempt" by the officers of the Council to provide accurate information in response to a request made to it - see also State of South Australia v Clark (1996) 66 SASR 199 at 234; and (h) the respondents have the onus of establishing the defence: Vines v Djordjevitch [1955] HCA 19, (1955) 91 CLR 512 at 519; Webster v Lampard at 606; and Alamdo at [54]. 823 The authorities also indicate that a number of matters may be relevant to the assessment of whether relevant acts or omissions were done or omitted to be done in good faith. These include the purpose(s) for which the action is taken; any motive(s) with which the action was taken; the intention (or its absence) to conform with the statute; the extent to which the action did conform with the statute; and the absence of gross negligence or recklessness. 824 It is also pertinent that s 215(2) grants the immunity in relation to the exercise or purported exercise of a power or in the performance or purported performance of a function under the YJ Act. This suggests that attention should be had to the purpose for which the power or function was exercised and whether the act in question constituted an attempt to fulfil the statutory purpose or to undertake the statutory function. 825 My finding that the applicant's detention between 2-9 January 2012 constituted unlawful imprisonment means that it is the application of the good faith defence to that conduct which must be considered. 826 I commence by stating my acceptance that the egregious behaviour of the applicant in the Boxing Day disturbance created a very difficult situation within Don Dale. The very violence of his behaviour, including the threat on Mr Yaxley's own life (made real by his having the means to carry it out), his attempted escape and his infliction of wanton damage is evidence that that is so. 827 It is obvious that the applicant's conduct called for a firm response. However, that response had to be implemented in accordance with the terms of the YJ Act. 828 As already noted, the respondents have not been able to establish that the applicant's detention in the BMU between 2-9 January 2012 was for a s 153(5) purpose. That may not have mattered, had the evidence indicated that this was attributable to genuine mistake about the factual circumstances or about the requirements of the law. But the respondents have not led evidence to that effect. In particular, they have not led evidence which shows that consideration was given, in relation to this period of detention, to the limitations imposed by s 153(5) on the ways in which the applicant could be detained. Nor, as noted, was a new assessment made of the applicant before placing him in the BMU on his return from DCC. This seems surprising given the prospect that the applicant may have found his five days in the DCC, especially the bleak circumstances in which he was kept there, salutary. Mr Yaxley could say only that the 29 December IMP "would've come into effect" on the applicant's return to Don Dale. On my findings, the applicant continued to be kept in the BMU on the terms of the same IMP until 9 January 2012. 829 The absence of consideration of the temporal limitations imposed by s 153(5) in this period is also pertinent. Although it is a matter about which Mr Yaxley and the detention officers had been conscious before the applicant was transferred to the DCC (and it seems to have been a prominent reason for that transfer), there is no persuasive evidence of its consideration after the applicant's return to Don Dale. Mr Yaxley's evidence that Mr Brown and "the Correctional Services executive team were aware of and approved [the] arrangements" is not sufficient for this purpose. 830 It also seems pertinent that there is no evidence or consideration of the limitations imposed by s 153(5) in relation to the other detainees kept in the BMU in this period. Positive evidence that the application of s 153(5) had been addressed in relation to the ongoing detention of these detainees may have supported an inference that the same consideration had been given to the applicant's detention. 831 In short, the Court is left without persuasive evidence from the respondents of a "real attempt", ie, an attempt in good faith, to comply with the YJ Act in this period. Instead, there is a hint in [99] of Mr Yaxley's affidavit set out above that it was thought convenient to keep the applicant and others in the BMU while repairs were completed. 832 In all the circumstances, I am not satisfied that the respondents have shown that the immunity provided by s 215(2) is available to the Superintendent in respect of the unlawful detention of the applicant in the period from 2-9 January 2012.
The limitation of actions defence 833 The applicant, who turned 18 years of age on 25 August 2012, commenced these proceedings on 26 May 2017. The respondents submitted that, in those circumstances, all his claims (other than his RD Act claims and his claims in respect of his imprisonment at DCC between 28 December 2011 and 2 January 2012) are time barred. This defence gave rise to more than the usual issues when limitation defences are raised.
Identifying the limitation periods 834 Section 46PO(2) of the AHRC Act specifies that an application should be brought within 60 days of the termination of the complaint to the AHRC. The applicant's complaint was terminated on 28 March 2017 and accordingly his claim for compensation pursuant to s 46PO in respect of the RD Act claims was commenced within time. 835 By reason of s 79 of the Judiciary Act 1903 (Cth), the limitation periods in respect of the applicant's remaining claims are fixed by the legislation of the Northern Territory: Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581 at 591-3. Section 79 provides (relevantly): 79 State or Territory laws to govern where applicable (1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable. ... (3) This subsection covers a law of a State or Territory that would be applicable to the suit if it did not involve federal jurisdiction, including, for example, a law doing any of the following: (a) limiting the period for bringing the suit to recover the amount; … … 836 Section 12(1)(b) of the Limitation Act 1981 (NT) provides that an action founded on tort, including a cause of action founded on a breach of statutory duty is "not maintainable after the expiration of a limitation period of 3 years from the date on which the cause of action first accrues to the plaintiff". 837 Section 36(1) of the Limitation Act suspends the running of a limitation period fixed by the Limitation Act itself in the case of a "person under a disability". The applicant has been subject to two disabilities which would attract the application of s 36, ie, his age until 25 August 2012 and his imprisonment. 838 The YJ Act contains its own limitation periods. Section 215(4), as in force throughout 2011 and 2012, provided: No proceedings may be commenced in relation to an act done or omitted to be done by the person under this Act more than 6 months after the act was done or the omission occurred. 839 Section 215 was set out in full earlier in these reasons, at [801] and it is apparent that its subject matter is both civil and criminal proceedings. 840 By s 55 of the Correctional Services (Related and Consequential Amendments) Act 2014 (NT) (the 2014 Amendment), s 215 was amended so as to "omit" subs (4). At the same time, s 55 inserted ss 215A and 215B into the YJ Act. Both the omitting of s 215(4) and the commencement of ss 215A and 215B occurred at the same time, ie, on 9 September 2014. 841 Sections 215A and 215B provide: 215A Prosecutions (1) Proceedings for an offence against this Act may be started only by: (a) the CEO; or (b) a person authorised by the Minister. (2) The proceedings must be started within 6 months after the date on which the CEO first became aware of the commission of the offence. 215B Civil proceedings (1) Civil proceedings in relation to an act done or omitted to be done by a person under this Act must be started within 6 months after the act was done or omitted to be done. … (2) However, subsection (1) does not prevent a court exercising its jurisdiction under section 44 of the Limitation Act 1981. 842 Thus, s 215B retains the six month limitation period but acknowledges expressly that that period may be extended under s 44 of the Limitation Act. I will return to s 44 shortly. 843 Section 11 of the Limitation Act provides that when, under two or more provisions in Pt 11 of that Act, an action is not maintainable if brought after a specified period of time, the action is not maintainable if brought after the earlier or earliest of those times. However, s 11 has no application presently because the shorter limitation period of six months is contained in the YJ Act and not in Pt 11 of the Limitation Act. 844 Nevertheless, the principle that provisions of general application give way to specific provisions when in conflict suggests that it is the specific provision in s 215 or s 215B (whichever is applicable) which fixes the limitation period presently and not the more general provision in s 12 of the Limitation Act: Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 14. That is especially so given the amendment of s 215 and the enactment of ss 215A and 215B in 2014, well after the enactment of s 12 of the Limitation Act. 845 Thus, both s 215(4) and s 215B(1) impose a six month limitation period and, as s 36(1) of the Limitation Act applies only to limitation periods fixed by that Act, the running of those periods was not suspended until the applicant turned 18. 846 Section 215(4) and ss 215A and 215B are of the kind to which Dixon J referred in Little at 108, being directed to the protection of "persons or bodies discharging public duties or exercising authorities or powers of a public nature". 847 One of the applicant's submissions was that, because the RD Act claims which found this Court's jurisdiction were commenced within time, all of his claims were also within time. I do not accept that submission. It conflates the matters giving rise to jurisdiction with the law to be applied in the exercise of that jurisdiction, and ignores the effect of s 79 of the Judiciary Act.
The pleadings concerning the time bar 848 In pleading that the proceedings are time barred, the respondents referred to s 215B and not to s 215(4). Their pleading was as follows: [138] In answer to all of the claims, the respondents plead and rely on YJA s 215B and say that these proceedings were commenced outside the time for commencing proceedings in relation to an act done or omitted to be done under the YJA. [139] Alternatively, in answer to the tort claims, the respondents plead and rely on s 12(1)(b) of the Limitation Act read with s 36 of that Act and says that these actions are not maintainable after 24 August 2015. 849 As is apparent, the respondents pleaded that all the applicant's claims were time barred. However, at the trial, the respondents accepted that the RD Act claims and the claims in respect of the imprisonment at DCC were not time barred. 850 In his filed Reply, the applicant pleaded [15] The Applicant denies the facts alleged in paragraph 138 of the Second Defence and further says: (a) S 215B of the YJA does not apply in these proceedings; (b) In the event s 215B of the YJA applies in these proceedings (which is denied), the Applicant says he was and is a person under a disability for the purposes of the Limitation Act ("LA"); (c) Further, and in the alternative, in the event s 215B of the YJA applies in these proceedings, the Applicant seeks relief pursuant to s 44 of the LA. [16] The Applicant denies the facts alleged in paragraph 139 of the Second Defence and further says: (a) Denies that s 12(1)(b) of the LA read with s 36 of the LA results in the actions not being maintainable after 24 August 2015; (b) In the event s 12(1)(b) of the LA applies in these proceedings (which is denied) the Applicant says he was and is a person under a disability for the purposes of the LA; (c) Further and in the alternative, in the event s 12(1)(b) of the LA applies in these proceedings (which is denied), the Applicant seeks relief pursuant to s 44 of the LA. 851 These pleadings gave rise to an issue between the parties as to whether it is s 215(4) or s 215B which provides for the six month limitation period. 852 In resisting the time bar defence, counsel for the applicant emphasised that s 215B was inserted into the YJ Act by s 55 of the 2014 Amendment and had come into operation on 9 September 2014. He submitted that s 215B should be regarded as a substantive, and not procedural, provision with the consequence that, in accordance with usual principles, it should be regarded as applying only to facts and circumstances occurring after its commencement. This meant, he submitted, that s 215B had no application to the applicant's claims based on events occurring in 2011 and 2012. There seemed implicit in this submission an unstated assumption that the upholding of it would mean that the time bar defences would fail altogether. 853 The applicant's filed Reply contained two further responses, made in the alternative. The first was the plea that he was, and continues to be, a person "under a disability" for the purposes of the Limitation Act with the consequence that the limitation periods fixed by the YJ Act have not run against him. 854 The second was a claim for an extension of time under s 44 of the Limitation Act. In the circumstances to be described shortly, in the final submissions counsel for the applicant expressly abandoned any application for an extension of time. 855 The respondents' limitation defences, and the applicant's response to them, give rise to a number of issues: (i) does s 215B have application to the applicant's claims? (ii) when did the limitation periods in respect of the acts and omissions at ASYDC and Don Dale commence to run? and (iii) are the applicant's claims, other than his RD Act claims and his claims with respect to his treatment at the DCC, time barred?
The application of s 215B to the applicant's claims 856 The respondents accepted that s 215B could have no application to the applicant's claims based on his transfer to, and treatment at, the DCC in the period between 28 December 2011 and 2 January 2012. They accepted that those claims were not "in relation to an act done or omitted to be done" by a person under the YJ Act for the purpose of s 215B(1). 857 The respondents submitted that s 215B is a procedural provision and so, even though enacted in 2014, operates with respect to past events, in accordance with the principles discussed in Maxwell v Murphy [1957] HCA 7, (1957) 96 CLR 261 and Yrttiaho v The Public Curator of Queensland [1971] HCA 29, (1971) 125 CLR 228 at 320 (Barwick CJ), at 233 (Menzies J). 858 Counsel for the applicant, relying on John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503, disputed the characterisation of s 215B as procedural. He submitted that, being substantive in nature, s 215B applies only to events or circumstances occurring after 9 September 2014 and has no application to the applicant's claims. Counsel thereby invoked the common law presumption that, in the absence of a clear intention to the contrary, amending statutes are not intended to have retrospective operation. In Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117 at [30], French CJ, Crennan and Kiefel JJ, described this presumption as an aspect of the principle of legality. 859 The principle that changes in the law do not have retrospective effect unless procedural in nature was stated by Dixon CJ in Maxwell v Murphy at 267: The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. 860 The Chief Justice noted the difficulties experienced in practice in applying this principle. After referring to some of the authorities, he approved, at 270, the following statement of Sloan JA in Dixie v Royal Columbian Hospital [1941] 2 DLR 138 at 139-40: [U]nless the language used plainly manifests in express terms or by clear implication a contrary intention - (a) A statute divesting vested rights is to be construed as prospective. (b) A statute, merely procedural, is to be construed as retrospective. (c) A statute which, while procedural in its character, affects vested rights adversely is to be construed as prospective. 861 To similar effect, Fullagar J said, at 286: [T]he distinction is probably best stated by saying that it is between statutes which create or modify or abolish substantive rights or liabilities on the one hand and statutes which deal with the pursuit of remedies on the other hand. In the former class of case there is a presumption against retrospective operation in the sense explained above. In the latter class of case there is no such presumption: on the contrary, the presumption is that the enactment applies in all proceedings commenced after it became law, and it may be right to construe it as applying even in proceedings commenced before it became law. 862 Williams J, at 277-8, noted that statutes of limitation are often regarded as procedural, but pointed out that that may not always be the case: Statutes of limitation are often classed as procedural statutes. But it would be unwise to attribute a prima facie retrospective effect to all statutes of limitation. Two classes of case can be considered. An existing statute of limitation may be altered by enlarging or abridging the time within which proceedings may be instituted. If the time is enlarged whilst a person is still within time under the existing law to institute a cause of action the statute might well be classed as procedural. Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action, the abridgment might again be classed as procedural. But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so, very different considerations could arise. A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantive rights. 863 Until the decision in John Pfeiffer v Rogerson, amendments to limitation statutes were generally regarded as being of a procedural nature unless (relevantly) the effect of the amendment was to reduce the period of limitation without the opportunity for an action to be commenced in time. In Yrttiaho, Gibbs J, with whose reasons on this issue Windeyer and Walsh JJ agreed, said at 242: The authorities support the view that an amendment to a Statute of Limitations may be regarded as being only of a procedural nature and, therefore, unless a contrary intention appears, retrospective in operation, if, being an amendment enlarging time, it took effect before the rights sought to be enforced had become finally barred by lapse of time, and if, being an amendment reducing time, it left time after its commencement within which an action might be brought. In these circumstances the substantive rights of the parties are not affected by the alteration of the limitation period. One of the authorities to which Gibbs J referred in support of this passage was the judgment of Williams J in Maxwell v Murphy at 277-8. 864 In John Pfeiffer v Rogerson, the High Court considered whether the law governing the assessment of damages in an action for damages for personal injury was the lex fori or the lex loci delicti and held it was the latter. The plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) noted that some statutes of limitation were traditionally held to be procedural on the basis that they barred the remedy but not the right, while other statutes of limitation had been held to be substantive, at [98]. Their Honours then held: [99] [M]atters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or to adopt the formulation put forward by Mason CJ in McKain, "rules which are directed to governing or regulating the mode or conduct of court proceedings are procedural and all other provisions or rules are to be classified as substantive. … [102] [L]aws that bear upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not as procedural laws. (Citations omitted) 865 Thus, at least in relation to conflict of laws issues, limitation provisions are substantive. But there is no indication that the characterisation of limitation laws as substantive is confined to the resolution of conflict of laws issues. 866 Since John Pfeiffer v Rogerson, some jurisdictions, but not the Northern Territory, have enacted legislation declaring that their limitation provisions are substantive in character. 867 The principle that amendments of statutes having substantive effect should not be construed as having retrospective effect is subject to a contrary legislative intention. The 2014 Amendment did not contain a transitional provision and there is no express statement of such a legislative intention with respect to s 215B. 868 However, the presumption against retrospective operation of amendments operates only when the amending Act affects rights by changing them with effect prior to its commencement - see Maxwell v Murphy at 267 in the passage quoted above and La Macchia v Minister for Primary Industry [1986] FCA 452, (1986) 72 ALR 23 at 33 (French J). It has no operation in respect of statutory changes which do not affect rights and liabilities. 869 The applicant's submissions assumed that the changes effected by s 55 of the 2014 Amendment had brought about a change affecting rights and liabilities. Plainly, at least in respect of any substantive change, that assumption is not correct, as a six month limitation period continued. This is so despite s 215(4) being expressed as a prohibition and s 215B(1) being expressed in terms of obligation. 870 Further, and in any event, there are circumstances in which the repeal and re-enactment of a provision is not regarded as changing the position in a substantive way. By way of example, it has been said that the mere re-enactment of a provision in plain English is not to be treated as altering the character and operation of the previous provision, unless that intention is clearly indicated: Boehm v Director of Public Prosecutions (Vic) [1990] VR 494 at 498. 871 Decisions concerning the common law rule that, subject to presently immaterial exceptions, the repeal of a statutory provision means that the law is to be applied as if the provision had never existed (eg, Chang Jeeng v Nufield (Australia) Pty Ltd [1959] HCA 40; (1959) 101 CLR 629 at 637) provide other examples. That common law rule has been reversed by provisions such as s 12 of the Interpretation Act (NT) concerning the effect of repeals. However, until s 12 and its cognates were enacted it had sometimes been thought necessary to determine whether an amending Act had effected the repeal of a former provision or had been an amendment of it only. The authorities in relation to these issues suggest two propositions of present relevance: first, that the matter should be determined as a matter of substance and not of form; and secondly, that the re-enactment of a deleted provision may be regarded as intended to have a retrospective operation. 872 In Beaumont v Yeomans (1934) 34 SR (NSW) 562, Jordan CJ, after discussing the different consequences of the repeal and amendment, said at 569-70: Whether an Act has been repealed or amended is a matter of substance and not one of form only. One Act may purport to amend another by repealing part of it. On the other hand, an amendment may be effected either by the addition to a section of a particular phrase, or by the repeal of a section and the substitution of the same words with the phrase added … And where a provision of an Act is repealed and re-enacted in a form which enlarges its scope, this has been construed as amounting in substance to amendment because the new provision has been regarded as intended to be retrospective so far as it is mere repetition, and prospective so far as it is new. (Emphasis added) 873 In support of the proposition in the last sentence, Jordan CJ referred to Ex parte Todd; In re Ashcroft (1887) 19 QBD 186 in which Lord Esher MR said at 195: I think, therefore, that, so far as s. 47 is a repetition of s. 91, the legislature obviously intended to replace the old enactment at once by the new one, and that, to that extent, s. 47 must apply to transactions which took place before the commencement of the new Act. See also Lopes LJ at 199 and the decision of the Court of Appeal in Re Player; ex parte Harvey [No 1] (1885) 54 LJQB 553. 874 It is the case that s 215B refers expressly to the ability to invoke s 44 of the Limitation Act so as to obtain an extension of time and s 215 did not. That raises the possibility that s 215B did effect a substantive change in the law and points to it having prospective effect only: Van Vliet v Griffiths (1979) 20 SASR 524. That is not the construction of s 215B(2) which I consider appropriate. I consider that s 215B(2) is clarificatory in nature, ie, as indicating that, even though the limitation period is found in the YJ Act, the power of courts to extend time vested by s 44 of the Limitation Act may still be exercised. That was also the position in respect of the limitation period fixed by s 215(4), even though it was not mentioned expressly in s 215. Accordingly it could not be held that the reference in s 215B(2) to s 44 is an indication that it introduced a new entitlement or effected substantive change in the law. 875 In my view, s 55 of the 2014 Amendment should not be regarded as having enacted a new limitation period of six months in respect of civil claims, or even a change in the substantive law with respect to fixation of a six month limitation period. It is more realistic to regard s 55 as continuing the existing six month limitation period but altering its location in the YJ Act from s 215 to the new s 215B. 876 There are some contextual considerations which support that view. In some of its provisions, the 2014 Amendment used the conventional terminology of "repeal". See for example s 49 which repealed the existing s 154 of the YJ Act and inserted a new s 154 with different substantive content. But the 2014 Amendment also effected a number of amendments of a seemingly formal kind and, in respect of these amendments, it used the term "omit" in relation to the words which were being removed. This is the terminology used in s 55 of the 2014 Amendment to remove s 215(4) and to insert ss 215A and 215B. Both the removal and the insertion occurred contemporaneously. The effect of s 55 is that, since 9 September 2014, the limitation period specified in s 215 has continued without interruption: only its location within the YJ Act has changed. Thus, in turn has meant that it is only the means by which it is identified which has changed. More colloquially, the six month limitation period has been "rebadged". 877 In summary, I consider that the enactment of s 215B was not the enactment of a new limitation period for the commencement of civil proceedings in relation to the acts or omissions of a person under the YJ Act so as to attract the presumption against retrospectivity. It is not realistic to understand the 2014 Amendment as having removed altogether the six month limitation period and as having intended its replacement to be the enactment of a new period of limitation operating only in respect of acts or omissions occurring after its commencement. That is especially so as the one provision, s 55 in the 2014 Amendment, effected both the omission of s 215(4) and the insertion of ss 215A and 215B. The applicant's submission to the contrary involved a preference for form over substance. 878 I conclude, therefore, that s 215B(1) is the current iteration of the time bar, which was in force, and continues to be in force, and that it is applicable to the circumstances of the applicant's claims. By referring to s 215B in their pleading, the respondents have identified the correct limitation period. 879 I would reach the same conclusion even if regard is had only to the YJ Act itself, and not to the terms of the 2014 Amendment. 880 This conclusion makes it unnecessary to consider whether the respondents did in [138] of the Second Defence, plead a time bar satisfying the requirements of authorities such as Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415; (2000) 23 WAR 159 at [36] and the authorities therein, but were in error in only an immaterial way in their identification of the source of the time bar on which they relied.
When did the limitation periods commence to run? 881 There is a relevant difference between s 215B(1) of the YJ Act and s 12(1)(b) of the Limitation Act. Under the former, time commences to run on the occurrence of the act or omission giving rise to the claim, whereas, under the latter, time commences to run on the accrual of the cause of action. In the latter case, that is usually only when all elements of the cause of action have occurred, which may not be coincident with the happening of the act or omission: Read v Brown (1888) 22 QBD 128 at 131. For the reasons which follow, it is not necessary to address those differences further.
Are the applicant's claims time barred? 882 As already noted, s 36 of the Limitation Act provides, in relation to limitation periods fixed under that Act, that the running of a limitation period is suspended for the duration of the period during which a claimant is under a disability. The applicant has been subject to two disabilities as defined in s 4(1) of the Limitation Act: until 25 August 2012, he was an infant and, during the periods when he has been serving a sentence of imprisonment. 883 As the applicant has not, since his 18th birthday on 25 August 2012, spent at least three years out of prison, the three year limitation period applicable to his DCC claims has never expired. Hence, the respondents' concession that the DCC claims are not time barred. 884 However, as s 36 of the Limitation Act has no application to the limitation periods fixed by the YJ Act, there was no suspension of the running of those periods in respect of the applicant's other tort claims until the applicant turned 18 or while he remained in custody. That position seems anomalous but is the consequence of the terms in which the legislation is expressed. It is not necessary to identify separately when each of the six month periods expired. It is sufficient to say that all had expired at the latest by 9 January 2013 (six months after the applicant left Don Dale). 885 Accordingly, without the grant of extensions of time under s 44 of the Limitation Act, all of the applicant's claims, other than his RD Act claims and the claims with respect to his imprisonment at DCC, are time barred. 886 I note that, had I upheld the applicant's submission that the YJ Act applied to his imprisonment at the DCC, the consequence would have been that those claims too would have been subject to a six month limitation period and are also time barred.
Abandonment of the application to extend the limitation periods 887 Section 44 of the Limitation Act empowers the Court to extend a limitation period in some circumstances. Section 44 provides (relevantly): (1) Subject to this section, where this or any other Act, or an instrument of a legislative or administrative character prescribes or limits the time for: (a) instituting an action; (b) doing an act, or taking a step in an action; or (c) doing an act or taking a step with a view to instituting an action, a court may extend the time so prescribed or limited to such an extent, and upon such terms, if any, as it thinks fit. (2) A court may exercise the powers conferred by this section in respect of an action that it: (a) has jurisdiction to entertain; or (b) would, if the action were not out of time, have jurisdiction to entertain. (3) This section does not: … (b) empower a court to extend a limitation period prescribed by this Act unless it is satisfied that: (i) facts material to the plaintiff's case were not ascertained by him until some time within 12 months before the expiration of the limitation period or occurring after the expiration of that period, and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff; or (ii) the plaintiff's failure to institute the action within the limitation period resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and other relevant circumstances, and that in all the circumstances of the case, it is just to grant the extension of time. (4) Where an extension of time is sought under this section in respect of the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section. (5) Proceedings under this section may be determined by the court at any time before or after the close of pleadings. … (Emphasis added) 888 As is apparent, while s 44(1) vests power in courts to extend limitation periods whether fixed by the Limitation Act itself or by any other Act, courts may extend limitation periods fixed by the Limitation Act itself only if satisfied that the plaintiff has (relevantly) ascertained facts material to his or her claim within the period of 12 months immediately before the commencement of proceedings or that the plaintiff's failure to commence the action within the limitation period resulted from representations or conduct of the defendant and was reasonable. In the case of limitation periods fixed other than by the Limitation Act, the courts' power to extend time is unfettered, but the power must be exercised judicially. 889 The operation of s 44 with respect to the extension of the six month period fixed by s 215B(1) of the YJ Act involves different considerations. On one view, account must be taken of s 5 of the Limitation Act: This Act does not apply to any action for which a period of limitation is prescribed by any other enactment other than an enactment referred to in section 3. 890 The YJ Act is not one of the enactments listed in s 3. Read literally, this could be taken to mean that the power to extend time contained in s 44 of the Limitation Act is not available in respect of actions to which the limitation period fixed by the YJ Act applies. However, as noted in Jenkings v Northern Territory of Australia [2017] FCA 1263 at [54], there is a settled line of authority in the Northern Territory to the effect that the subject matter of s 5 is the preservation of special limitation periods prescribed by enactments other than those to which s 3 refers and that it does not have the effect of excluding courts from exercising the power under s 44 to extend the time fixed by a special act. These include the decisions of the Supreme Court of the Northern Territory in Vershuuren v Toms' Tyres Corporation Ltd (1992) 86 NTR 1 at 7-8; Drover v Northern Territory of Australia [2005] NTCA 11; and Johnson v Northern Territory of Australia [2014] NTSC 18. 891 As also noted in Jenkings, those decisions do not bind this Court but, having regard to usual principles, this Court would depart from them only if satisfied that they are clearly wrong. The respondents did not make any submission to that effect. 892 In any event, s 215B(2) is an express indication of the legislative intention that the limitation period fixed under subs (1) is able to be extended under s 44 of the Limitation Act. 893 As already noted, the requirement that the applicant first satisfy the Court that he has ascertained facts materials to his case within the requisite 12 month period is not applicable in relation to the extension of the six month periods fixed by s 215B. 894 Neither the applicant's Originating Application nor his Statement of Claim sought an extension of time, despite it being obvious that, whether it be s 215(4) or s 215B which applies, his tort claims (other than the claims with respect to his imprisonment at DCC) were being commenced after the expiry of the relevant limitation period. However, as noted earlier, the applicant did, in his Reply to the respondents' pleading of the time bar defences, state that he sought "relief pursuant to s 44 of the [Limitation Act]". 895 During the final submissions, I drew the attention of counsel for the applicant to the absence in the Originating Application of the endorsement required by s 44(4) of the Limitation Act and invited an application to amend. I suggested to counsel that such an application could usefully be discussed with the respondents' counsel, given that the respondents were seeking leave to amend their pleading of the time bar defence so as to plead, in the alternative, that the time bar arose pursuant to s 215(4) of the YJ Act. 896 However, after the lunch adjournment, counsel for the applicant informed the Court that: (a) he opposed a grant of leave to the respondents to plead s 215(4) in the alternative. Counsel said that the applicant would be prejudiced by the grant of such leave because, had s 215(4) been pleaded originally, he would have adduced additional evidence in the trial; (b) he was not applying for leave to amend the Originating Application so as to include the s 44(4) endorsement; and (c) he was "disclaiming any reliance on section 44", was not seeking any extension of time, and held instructions to that effect from the applicant. 897 The third of these matters was an astonishing development in the trial. It meant that if, contrary to the pleading in the Reply and counsel's submission, the Court found that a limitation period of six months was applicable, the applicant's tort claims (other than those relating to the imprisonment at the DCC) would be time barred with no means of retrieval. I expressed my surprise to the applicant's counsel and, with a view to ensuring that there was no misunderstanding on my part of his position, recorded in the transcript the position he had communicated. Later, in counsel's reply submissions, I sought confirmation on his part that he was aware that, if the Court found that a six month limitation period did apply, the applicant's claims would be time barred. Counsel confirmed that he understood that. He said "given what I said before, we wouldn't be able to make an application under s 44 of the Limitation Act". It was not made clear why such an application could not have been made in the alternative. 898 In those circumstances, troubling as it seems, the Court does not have to consider an application for an extension of time pursuant to s 44 of the Limitation Act. The consequence is that the respondents' limitation defence succeeds with respect to all but the applicant's RD Act claims and his claim in respect of his imprisonment at DCC.
Assessment of damages 899 Given that I uphold the respondents' time bar defences, it is not strictly necessary to make an assessment of the damages to which the applicant would be entitled in respect of his unlawful detention between 2 and 9 January 2012. However, in case the matter goes further, and it be found that that claim is not time barred, I will indicate briefly my views. 900 As unlawful imprisonment is a trespass to the person, it is not necessary for the applicant to prove damage resulting from his unlawful detention (Murray v Ministry of Defence [1988] 1WLR 692 at 708) and, subject to what I say shortly, he sought to do so only in a general way. In the absence of evidence of particular injury or loss, damages for unlawful imprisonment are awarded as a vindication of personal liberty: Ruddock v Taylor at [141]. 901 Mr Ralph, the Forensic Psychologist, concluded that the applicant "fits all of the necessary criteria to be diagnosed as suffering from Post-Traumatic Stress Disorder in accordance with the definition of this disorder as specified in DSM-V". 902 As to the cause of the PTSD, Mr Ralph said: In considering the current deficits displayed by [the applicant], however, particularly his poor social, emotional and cognitive adjustment and his inability to adapt to life on "the outside" and the magnitude of the traumatic events he experienced in Don Dale and adult prison, I am of the opinion that the latter has contributed substantially to Mr Campbell's poor psychological adjustment and the difficulties that he now faces in making his way forward in life. In my opinion his experience of being held in isolation for lengthy periods, the repeated use of spit hoods and the application of physical force and general ill-treatment are all matters that have contributed substantially to Mr Campbell's poor mental health and his diminished prospects in life. (Emphasis in the original) 903 Mr Ralph accepted, however, that it was likely that the applicant had suffered "some degree of psychological impairment that was trauma-related prior to the later incidents having occurred". 904 Dr Wojnarowska, the Forensic Psychiatrist who examined the applicant at the respondents' request, did not agree with Mr Ralph's diagnosis of PTSD. She thought instead that the applicant has an Anti-social Personality Disorder. 905 For the reasons stated above, I have not thought it necessary in these reasons to set out a detailed analysis of these competing opinions. I note, however, that, as Mr Ralph himself acknowledged in his evidence, the reliability of his opinion is very much dependent upon the veracity of the history given to him by the applicant and the reliability of the applicant's report of his symptoms. There are a number of respects in which the history the applicant gave to Mr Ralph is not supported by the documentary evidence and not supported by the evidence in the trial which I have accepted. 906 I also thought that Dr Wojnarowska's assessment was more nuanced than that of Mr Ralph. It is unsurprising that the applicant's experience in detention, commencing as it did at the age of 14 and continuing with only relatively short intervals in the community thereafter, has influenced his development and progress. These experiences occurred at formative stages in the applicant's life. Any assessment of the applicant's current psychiatric or psychological state has to take account of all those experiences, and not just those on which the applicant focused in the present litigation. My impression was that Dr Wojnarowska grappled with those issues in a more detailed way than did Mr Ralph and that her opinions were to be preferred. 907 In any event, while Mr Ralph attributed some of the applicant's PTSD to his being held in isolation for "lengthy periods", he did not seek to differentiate the period from 2 and 9 January 2012 from the other periods in which the applicant was isolated. Nor did Mr Ralph address the relative significance of the different forms of isolation. This pertinent because I would regard the applicant's isolation in the DCC, being in adult prison and constituting complete isolation from other detainees, as being more significant, and with greater prospect of being injurious to the applicant's mental health, than his isolation in the BMU at Don Dale in the period 2-9 January 2012. 908 In the circumstances, I do not consider that damages should be assessed on the basis that the applicant suffered a form of psychiatric injury attributable to his isolation in the period from 2-9 January 2012. 909 This means that damages would be awarded to the applicant for the deprivation of his liberty and for the injury to feelings. The applicant has not suffered damage to his reputation or any economic loss. There was no suggestion that he was aware at the time of the unlawfulness of his detention in the BMU: cf Myer Stores Pty Ltd v Soo [1991] 2 VR 597 at 615. It is true that there has been no acknowledgement of wrongdoing by the respondents, nor any apology to the applicant, both of which are recognised as matters which may warrant an increased award: Soo at 618. 910 In his final submissions, the applicant sought damages at the rate of $1,200 per day in respect of the claim of unlawful imprisonment in the period from 26 December 2011 to 9 January 2012. He had sought damages at the rate of $500 per day in respect of the claimed unlawful imprisonment at Don Dale in the period from 14 November 2011 to 9 July 2012, and damages of $2,000 in respect of the claimed unlawful imprisonment on 8 April 2011. 911 The stark matter bearing on the assessment presently is that the applicant would, even without the unlawful detention in the BMU, have continued in detention throughout the period 2-9 January 2012. The damages awarded for his false imprisonment in the BMU must take account of that circumstance - see Lewis v Australian Capital Territory [2020] HCA 26; (2020) 381 ALR 375 to which the parties drew my attention while judgment was reserved. The applicant is not entitled to damages on the basis that, without the unlawful detention, he would generally have been at liberty. I would have proceeded on the counterfactual that, had it not been for the unlawful detention in the BMU, the applicant would have continued in detention of the kind applicable to a detainee with a Maximum security classification in the period 2-9 January 2012. 912 The respondents drew attention to an additional way in which the applicant's ongoing lawful detention was relevant, namely, that the applicant had not suffered the "initial shock of being arrested", this being a matter which is often prominent in the assessment of damages: Zaravinos v New South Wales [2004] NSWCA 320; (2004) 62 NSWLR 58 at [51]-[52]. I accept that that is so. 913 Having regard to these matters, I consider that the damages which would have been awarded to the applicant in respect of the period of his detention from 2 to 9 January 2012 could not have been more than $8,000. 914 The applicant sought in addition awards of aggravated and exemplary damages. I would not have made awards of either kind. This is not a case in which there was a deliberate, intentional or reckless disregard of the applicant's interests of the kind which justifies an award of exemplary damages. My finding that the respondents have not made out the good faith defence does not justify a contrary conclusion. It is to be remembered that the respondents were dealing with a difficult situation, attributable in no small part to the applicant's own conduct. 915 Nor is this a case in which the respondents should be regarded as having acted with contumelious disregard of the applicant's rights, for example, by acting with malice, or in a high handed way. That is to say, I do not regard the circumstances as justifying an award of aggravated damages.
Summary 916 In summary, with the exception of the claim in respect of his detention in the period 2-9 January 2012, the applicant has not established any of his claims of wrongful imprisonment. Nor has he established his claims of racial discrimination, battery, assault or breach of the duty of care. The applicant did establish that he was unlawfully detained in the BMU in the period from 2-9 January 2012, but that claim is time barred. It has not been necessary to consider an extension of time for that claim, as the applicant expressly disavowed such an application in the final submissions. 917 The formal order of the Court is that the application is dismissed. I will hear from the parties with respect to costs. I certify that the preceding nine hundred and seventeen (917) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White.
Campbell
Northern Territory of Australia
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[2012] HCA 19
[2003] HCA 38
[2003] HCA 33
[1908] HCA 55
[2019] NTCA 1
[2014] NTSC 18
[1988] NTSC 60
[2016] ACTSC 352
[1994] HCA 4
[2010] SASC 56
[1998] FCA 1650
[2000] WASCA 415
[2005] NTCA 11
(1932) 47 CLR 1
(2012) 246 CLR 117
(1989) 168 CLR 165
(1987) 162 CLR 466
(2006) 156 FCR 451
(2005) 223 CLR 660
(2020) 275 FCR 669
(2004) 219 CLR 486
(1961) 109 CLR 105
(1983) 34 SASR 73
(1957) 97 CLR 202
(1998) 192 CLR 557
(2003) 215 CLR 1
(1997) 187 CLR 384
(1988) 13 NSWLR 714
(1999) 200 CLR 1
(1906) 3 CLR 969
(1992) 57 SASR 494
(1985) 159 CLR 70
(2003) 214 CLR 269
(1908) 7 CLR 1
(2008) 235 CLR 232
(2001) 105 FCR 56
(2011) 80 NSWLR 296
(2008) 72 NSWLR 350
(1958) 98 CLR 177
(2019) 343 FLR 41
(2000) 203 CLR 503
(2014) 285 FLR 227
(1988) 92 FLR 6
(1947) 75 CLR 94
(1957) 96 CLR 261
(1993) 44 FCR 290
(2016) 315 FLR 305
(1986) 160 CLR 626
(1995) 38 NSWLR 622
(1998) 194 CLR 355
(1999) 199 CLR 575
(2008) 167 FCR 537
(2005) 222 CLR 612
(1987) 48 SASR 500
(2012) 208 FCR 235
(1992) 175 CLR 218
(1994) 179 CLR 332
(1957) 96 CLR 245
(1967) 118 CLR 424
(2007) 232 CLR 486
(2013) 83 NSWLR 566
(1996) 66 SASR 199
(2010) 106 SASR 331
(1985) 157 CLR 424
(2017) 262 CLR 362
(1997) 72 FCR 581
(1955) 91 CLR 512
(1971) 124 CLR 621
(1993) 177 CLR 598
(1957) 97 CLR 465
(1986) 161 CLR 278
(1980) 146 CLR 40
(1971) 125 CLR 228
(1955) 94 CLR 147
(1991) 173 CLR 349
(1998) 91 FCR 8
(1999) 91 FCR 47
(2008) 169 FCR 59
(2002) 213 CLR 1
(1986) 72 ALR 23
(1959) 101 CLR 629
(1979) 20 SASR 524
(2000) 23 WAR 159
(2020) 381 ALR 375
(2004) 62 NSWLR 58
[2000] HCA 36
[2002] HCA 28
[1998] HCA 26