Gebrehiwot v State of Victoria

Ruling: Orders sought in defendant's summons dated 24 July 2019 granted.

1 This proceeding relates to an incident at Maddern Square, Footscray ("the Square") at approximately 10.30pm on 17 November 2014 ("the said date") involving the plaintiff and three police members - Senior Constable Jonathan Miller ("SC Miller"), Detective Senior Constable Van Der Vliet and Detective Senior Constable Devenish ("the police members").

2 The police members attended the Square as part of an investigation into an attempted armed robbery by two men described as African males ("the suspects") at Liquorland Footscray, which had occurred earlier that night ("the attempted armed robbery").[1]

3 It is alleged that the plaintiff was assaulted at the Square by SC Miller on two occasions. After the second assault, the police members restrained the plaintiff and handcuffed him while he was on the ground ("the third assault").[2]

4 It is alleged, before the police members attended the Square, SC Miller had viewed the CCTV footage of the attempted armed robbery and had identified two suspects as Abraham Adet and Akol Maker.[3] Further, the police members heard, over radio police communications, that there were a few Africans at the Square, none of whom matched the description of the suspects. Further, SC Miller had previously had multiple interactions with the plaintiff, and knew his identity, and that he was not one of the suspects.[4]

5 At the time the police members attended the Square, they did not suspect the plaintiff and/or the other men of African descent who were with him, of committing the attempted armed robbery or any criminal offence.[5]

6 It is alleged that the actions of the police members, in the conduct of the three assaults, constituted unreasonable, disproportionate and grossly excessive force, and were not authorised in law.[6]

7 It is alleged, after the third assault in response to a query over police communication radio as to whether police back-up was needed, a police member said words to the effect "no that's a negative, we've got heaps of units here, we've just got a few Africans popping their head up occasionally".[7]

8 It is alleged that at no time the plaintiff was told by any member of the Victoria police he was under arrest, or why he was under arrest. It is alleged he was unlawfully arrested and falsely imprisoned from the time of the first assault and was released from custody into the care of paramedics ("the false imprisonment").[8]

9 In addition to not being told he was under arrest, or why, it is alleged the police members had no reasonable grounds to arrest the plaintiff and that the actions of the police members in the three assaults constituted unreasonable, proportionate and grossly excessive force, and were not authorised in law.[9]

10 It is alleged, at all relevant times, the three assaults and the false imprisonment constitute police torts for which the defendant, the State of Victoria is liable pursuant to s74 of the Victoria Police Act 2013.[10]

11 Further and in the alternative, it was alleged the actions and decisions of the police members in:

(a) assaulting the plaintiff in the three assaults; and

engaged the plaintiff's human rights and were each incompatible with a human right and/or failed to give proper consideration to a number of the plaintiff's human rights under the Charter of Human Rights and Responsibilities Act 2006 ("the Charter").[11]

12 It is alleged, the conduct of the defendant had aggravated the plaintiff's suffering.[12] The particulars of aggravation were as follows:

(a) DSCs Miller and Van Der Vliet demanded the plaintiff provide his identification in circumstances where there was no power to make such a demand;

(b) the plaintiff was assaulted by SC Miller while he was affected by alcohol and posing no threat or danger;

(c) the plaintiff was handcuffed by the police members and restrained on the ground after he had suffered serious injury to his right ring finger and had told the police members his fingers were broken;

(d) the defendant's conduct against the plaintiff was unlawful and in contumelious disregard of his rights;

(e) the police members approached the plaintiff and the other men in purported investigation of the attempted armed robbery, when they knew they were not the suspects SC Miller had identified;

(f) after the third assault, and before the arrival of paramedics, one of the police members made a racist and dehumanising comment in respect of the plaintiff and the other men over the police radio.

13 Further, it is alleged that the conduct of the defendant from the time of the first assault, and ongoing, was sufficiently egregious to warrant an award of exemplary damages so as to:

(a) mark the Court's disapprobation of that conduct;

(b) act as a deterrent and a spur to the defendant to ensure that police officers are properly trained and understand their heavy responsibilities;

(c) recognise the unlawfulness of the conduct by the police members, which was in breach of the plaintiff's human rights under the Charter, repeating the earlier particulars.[13]

14 In his prayer for relief, the plaintiff claimed:

(a) damages, including aggravated and exemplary damages;

(b) Declarations that the actions of the police members pleaded in paragraphs 4A to 6 were unlawful pursuant to s38(1) of the Charter.

15 The defendant denies the allegations. It admits the plaintiff was arrested for being drunk in a public place; however, it says the plaintiff was aggressive towards a police member, that he refused to desist in his aggressive behaviour and that he spat at a police member. The defendant says the arrest was lawful and that the force used was not disproportionate and was reasonable to effect the lawful arrest of the plaintiff.[14]

16 In its FAD dated 31 July 2019, the defendant -

(a) admitted the plaintiff's human rights as referred to in s10, s12, s21 and s22 were engaged, or potentially engaged, by the actions of SC Miller in placing the plaintiff under arrest; and

(b) otherwise denied any alleged breach of the Charter.

17 The defendant denied the conduct of the defendant had aggravated the plaintiff's suffering and said further, that paragraph 12(c) is objectionable and ought to be struck out, because:

(a) the paragraph seeks damages arising from the alleged breach of the plaintiff's Charter rights;

(b) section 39(3) of the Charter provides that a person is not entitled to be awarded any damages because of a breach of the Charter; and

(c) accordingly, there is no basis in law for a claim for exemplary damages arising from the alleged breaches of the Charter.

18 The FAD dated 31 July 2019 also set out further and better particulars of the defendant's allegation that the plaintiff had failed to take steps to mitigate his loss[15] and accordingly says that the defendant is not liable for any loss or damage arising from the amputation of the plaintiff's finger, including any alleged psychological injury.

19 The defendant also alleges the plaintiff is precluded from recovering damages for non-economic loss because:

(b) the plaintiff has not sustained a significant injury within the meaning of and for the purposes of Part VBA of the Wrongs Act 1958.[16]

20 This present application was brought by the defendant by Summons dated 24 July 2019 seeking:

(a) the defendant have leave to file and serve a Further Amended Defence in the form of the document dated 19 July 2019;[17]

(b) paragraph 12(c) of the FASC dated 7 June 2019, be struck out.

21 In support of the Summons dated 24 July 2019, the defendant's solicitor, John Morcom, swore two affidavits.

22 In these affidavits, Mr Morcom set out the background to the present application and a summary of the grounds on which the orders were sought. The matters deposed to were addressed by counsel in both written and oral submissions, therefore it is not necessary to refer specifically to the contents thereof in my ruling.

23 Counsel for the defendant submitted the only sensible reading of paragraph 12 (c) of the FASC was that it was a plea for damages by reason of the Charter.[18]

24 Whilst it was admitted that the police members were each acting as a public authority within the meaning of the Charter, and were bound to act in accordance with the Charter, the defendant denied any breach of the Charter, and further said there was no entitlement to any damages for any breach thereof.

25 It was submitted the preclusion from obtaining damages was clear from:

(a) the unambiguous language of s39(3) and s39(4) of the Charter;

(b) the clarity of the Parliament's intent, as expressed in the statutory materials; and

(c) the approach of the courts to the nature and scope of the Charter.

26 Further, in terms of the principles of statutory construction, counsel for the defendant relied on the comments of the High Court in Commissioner of Taxation v Consolidated Media Holdings Ltd[19] and Keane J in King v Philcox[20] and also s35 of the Interpretation of Legislation Act 1984 (Vic).[21]

27 Counsel then referred to the following relevant sections of the Charter:

"1 Purpose and citation

(1) This Act may be referred to as the Charter of Human Rights and Responsibilities and is so referred to in this Act.

(2) The main purpose of this Charter is to protect and promote human rights by -

(a) setting out the human rights that Parliament specifically seeks to protect and promote; and

(b) ensuring that all statutory provisions, whenever enacted, are interpreted so far as is possible in a way that is compatible with human rights; and

(c) imposing an obligation on all public authorities to act in a way that is compatible with human rights; and

(d) requiring statements of compatibility with human rights to be prepared in respect of all Bills introduced into Parliament and enabling the Scrutiny of Acts and Regulations Committee to report on such compatibility; and

(e) conferring jurisdiction on the Supreme Court to declare that a statutory provision cannot be interpreted consistently with a human right and requiring the relevant Minister to respond to that declaration.

(3) In addition, this Charter -

(a) enables Parliament, in exceptional circumstances, to override the application of the Charter to a statutory provision; and

(b) renames the Equal Opportunity Commission as the Victorian Equal Opportunity and Human Rights Commission and confers additional functions on it; and

(c) makes consequential amendments to certain Acts."[22]

28 It was submitted the key purpose of the Charter was to protect and promote human rights[23] by ensuring that all statutory provisions, whenever enacted, were interpreted, so far as is possible, in a way that is compatible with human rights[24] and by imposing an obligation on all public authorities to act in a way that is compatible with human rights.[25]

29 Section 38 imposes duties on public authorities to comply with human rights:

"(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

...

(3) This section does not apply to an act or decision of a private nature.

... ."[26]

30 Counsel for the defendant relied on the comments of Emerton J in Castles v Secretary to the Department of Justice and Others[27] as to the relevant test for "giving proper consideration" to rights under this section:

"The requirement in s 38(1) to give proper consideration to human rights must be read in the context of the Charter as a whole, and its purposes. The Charter is intended to apply to the plethora of decisions made by public authorities of all kinds. The consideration of human rights is intended to become part of decision-making processes at all levels of government. It is therefore intended to become a "common or garden" activity for persons working in the public sector, both senior and junior. In these circumstances, proper consideration of human rights should not be a sophisticated legal exercise. Proper consideration need not involve formally identifying the 'correct' rights or explaining their content by reference to legal principles or jurisprudence. Rather, proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over-zealously by the courts.

While I accept that the requirement in s 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person's human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified."[28]

(Footnotes omitted.)

31 It was submitted a breach of s38(1) does not give rise to a new cause of action, for which remedies can be obtained. The "giving of proper consideration" is that if there is a breach of s38, s39 provides remedies for a breach thereof. These two provisions must be read together.[29]

"(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

(2) This section does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right -

(a) to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and

(b) to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.

(3) A person is not entitled to be awarded any damages because of a breach of this Charter.

(4) Nothing in this section affects any right a person may have to damages apart from the operation of this section."[30]

33 The reference to "a ground of an unlawfulness arising because of this Charter" is a reference to unlawfulness arising under s38(1).[31]

34 It was submitted s39 envisages the human rights provisions of the Charter influencing the reasoning and outcome in pre-existing forms of actions (for example by providing a required element of unlawfulness in certain actions or influencing the use of judicial discretions).

35 In Director of Housing v Sudi,[32] Weinberg JA observed that the Charter does not create a cause of action for breach:

"Section 38(1) of the Charter is, as I have previously indicated, pivotal to this proceeding. It imposes an obligation upon public authorities to comply with human rights. Regrettably, it does not specify what consequences, if any, are to flow from a breach of that obligation. The Charter does not create a cause of action for breach. Section 39, loosely described as the 'remedies provision', is drafted in terms that are convoluted and extraordinarily difficult to follow.

Section 39 seems to envisage that the various human rights provisions contained in the Charter will, in future, influence the conduct of, and outcome in, pre-existing forms of action. For example, if a claim requires, as an element, that there be proof of unlawful conduct, it seems that the Charter can be invoked as the basis for a finding of that kind. However, the Charter itself does not create a new remedy. The implication of s 39 is that there is no new cause of action for breach of any Charter right.

Courts are under no obligation under the Charter to create any new remedies.

...

However, so far as remedies are concerned, the Charter seems to me to focus upon judicial review and its public law analogues, rather than upon expanding those forms of relief. That is a consequence of the 'dialogue' model chosen by the legislature as the basis for the Charter's operation."[33]

(My emphasis.)

"Plainly enough, s 39(1) has an operation which is both conditional and supplementary.[34] The condition to be satisfied is that a person be able to seek, independently of the Charter, 'any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful'. If - but only if - that condition is satisfied, then s 39(1) enables that person to seek "that relief or remedy" on a supplementary ground of unlawfulness, that is, unlawfulness arising because of the Charter."[35]

37 Maxwell P gave the example of an application for judicial review at common law in accordance with Order 56 of the Supreme Court (General Civil Procedure Rules) 2015 (Vic) or under the Administrative Law Act 1978 (Vic) as one that would satisfy the condition for the operation of s39(1).[36]

38 Counsel for the defendant submitted the types of orders that can be made under s39(1) include:

• Declarations
• Declarations and injunctions
• Declarations and orders in the nature of certiorari
• Training
• Exclusion of evidence.

Availability of damages for breach of the Charter

39 It was submitted what was sought by the pleading at paragraph 12(c) of the FASC is exemplary damages to recognise the unlawfulness of the police members' conduct - which can only mean unlawfulness in the context of the Charter which, it was submitted, was precluded by s39(3) of the Charter.

40 Section 39(3) provides there is no entitlement to damages because of a breach of the Charter. This reference to a breach is a reference to conduct that is made unlawful by s38. It was submitted any award of damages, including aggravated, exemplary and punitive damages because of a breach of Charter, is clearly precluded by s39(3).

41 Further, it was submitted that s39(4) prevents a court from using a breach of s38(1) to inform the amount of damages awarded to a plaintiff under the independent non-Charter ground. Section 39(4) expressly states that nothing in this section "affects any right a person may have to damages apart from the operation of this section". As such, it was submitted a plaintiff may claim general, aggravated and exemplary damages under an independent non-Charter cause of action, but a breach of the Charter must not inform the amount awarded.

42 It was submitted the Charter was clear and unambiguous and that there was no entitlement to damages because of a breach.[37]

43 Further, the defendant submitted the Court did not need to go behind the face of the Charter to determine the issue; however, the Court could be confident in the plain reading of the section when regard was had to Parliamentary intention. It was submitted the Government's intention in drafting s39(3) was clearly to preclude any award of damages because of a breach of the Charter.

44 Counsel for the defendant relied on the following comments in the Explanatory Memorandum as to the intended operation of s39:

"Sub-clause (1) provides that if a person has a right to seek relief or a remedy otherwise than because of this Charter, founded on the unlawfulness of some conduct by a public authority, then any unlawfulness generated by this Charter (as set out in clause 38) may be a further ground in the cause of action. This clause does not create any new or independent right to relief or a remedy if there is nothing more than a breach of a right protected under Part 2. In particular, the clause does not confer any entitlement to an award of damages arising from nothing more than a breach of a right protected under Part 2, nor are any damages to be awarded referable to the breach of a right protected under Part 2. The unavailability of damages is further reinforced by sub-clause (3).

...

Sub-clause (3) clarifies that a person is not entitled to be awarded any damages because of a breach of this Charter. This confirms Parliament's intention that the Charter does not create any independent cause of action or any independent forms of relief.

Sub-clause (4) provides that nothing in this clause affects any right a person may have to damages apart from the operation of this clause."

45 Further consideration was given to any right to damages in relation to false imprisonment. Clause 21 is explicit:

"Parliament does not intend to create any right to compensation for a person who claims that he or she has been unlawfully arrested or detained."

46 During the Second Reading Speech, the Attorney-General, Rob Hulls, stated:

"Clause 39 of the Bill also sets out who may seek a remedy for a breach of the obligation on public authorities to give proper consideration to a human right protected by the charter. It also provides for the circumstances in which a remedy may be sought. It is intended that there should be no new causes of action in respect of breaches of human rights and that damages should not be awarded for breaches of human rights. This reflects the government's intention that any available remedies should focus on practical outcomes rather than monetary compensation.

Public authorities will still be bound by the charter and existing causes of action that are available to address unlawful actions by public sector bodies are still available in respect of breaches of the charter in the same way they are available for breaches of other laws."[38]

47 Counsel for the defendant submitted the intention of the Parliament is clear. A person is not to be compensated by an award of any damages for any breach of the Charter. Seeking to garner support for an award of exemplary damages to recognise the unlawfulness of the police members' conduct, it was submitted, was inconsistent with the Statute and the clear intention of the Parliament.[39]

48 Further, while there was no case law to determine this issue, it was submitted, however, the cases were consistent with the proposition that no damages are available for a breach of s38 of the Charter and that the courts take a conservative approach to the interpretation to be given to the remedies available.

49 In Momcilovic v The Queen & Ors,[40] Gummow J observed that:

"... The effect of s 39(3) is that breach of the Charter does not of itself give rise to entitlement to an award of damages. But the effect of the balance of s 39 is that the complainant may seek such other remedy as the complainant may have on a ground of unlawfulness arising because of the Charter. ... ."

(Footnotes omitted.)

(my emphasis.)

50 It was submitted this was High Court authority, obiter as it is, for support of the defendant's position.[41]

51 Counsel for the defendant also relied on the case of Bare v Small.[42]

52 This case involved a complainant who claimed to have been assaulted by police during an arrest. Mr Bare claimed the conduct amounted to a breach of his rights under s8 and s10 of the Charter. He claimed he was entitled to an effective investigation of his complaint independent of Victoria Police pursuant to an implied right in s10(b) of the Charter.

53 The Director's delegate refused, but offered to refer the complaint to an internal division of Victoria Police. Mr Bare sought orders in the nature of certiorari, as well as declaratory relief against the defendants. He claimed that two decisions of the Office of Police Integrity made in response to his complaint were tainted by jurisdictional error, which included errors arising from breaches of s38 of the Charter.

54 Williams J dismissed the application for judicial review. In finding that an "unlawful" act under s38(1), or a breach of the s38(1) "procedural limb," did not amount to a jurisdictional error, her Honour observed:

"The meaning of s 39 is not directly in issue in this proceeding and it is not settled as to what is required, in terms of another claim or otherwise, before s 38(1) unlawfulness can supply a necessary element of a cause of action or defence. I am not, however, persuaded that the terms of s 39 are inconsistent with the view that s 38(1) unlawfulness does not per se amount to jurisdictional error. Any limitation of the availability of a remedy for breach of s 38(1), including the ruling out of compensation by way of damages by s 39(4), rather militates against acceptance of the argument that it does.

I agree with the defendants that considerations relevant to the existence of invalidity, taken into account in Project Blue Sky, also suggest that an act done or decision made in breach of either of the requirements of s 38(1) would not amount to a jurisdictional error. The obligations to act compatibly with human rights and to give them proper consideration under s 38(1) lack the 'rule-like quality', easily identified and applied, thought indicative of requirements for validity.41 The criteria for lawfulness under s 38(1) might be open to different interpretations, given the nature of the judgment required under s 7(2). The definition of 'public authority' in s 4 is also 'open ended', in terms of the relevant criteria, and there is power to expand or reduce the number of bodies fitting the description for Charter purposes by characterising entities as public authorities or removing that character by regulation. In addition, the applicability of the exceptions in sub-ss 38(2), 39(2), 39(3) and 39(4) may not always be clear."[43]

(Footnotes omitted.)

(my emphasis.)

55 Williams J thus confirmed compensation was ruled out.

56 The complainant in that case successfully appealed. In Bare v Independent Broad-Based Anti-Corruption Commission,[44] the Court of Appeal held by a majority that the Director's failure to comply with s38(1) of the Charter constituted an error of law on the face of the record and, therefore, the decision was unlawful. As such, the decision was quashed.

57 The majority, in that case, found it unnecessary to determine whether the contravention of s38(1) of the Charter constituted jurisdictional error; however, Warren CJ, in her dissenting judgment, held a failure to comply with that section did not constitute jurisdictional error.[45]

58 Counsel for the defendant submitted commentators had noted that this decision represents a continuation of the conservative approach to the nature and scope to the Charter by Victorian courts and also Victorian courts' very cautious approach to the use of international law to construe the scope of Charter rights.

59 Counsel for the defendant also relied on the case of Dijme v Le,[46] which concerned an application for leave to appeal against an order of Zammit J, who dismissed an appeal from an associate judge, dismissing, on a summary application, an originating motion.

60 The case concerned the applicant attempting to forcibly enter a property. He refused police requests to leave, whereupon, against his resistance, he was handcuffed and removed from the premises. He was charged with unlawful assault of a police officer, resisting arrest and unlawful assault of the landlord of the property.

61 The Court of Appeal found that none of the appellant's grounds of appeal had a real prospect of success. One of the broad complaints of the appellant was that Zammit J failed to consider the prejudice and damages caused by the police by reason of the injury and false arrest et cetera. The Court of Appeal noted, at paragraph [21]:

"... In other documents in the Application Books the applicant has claimed damages amounting to $4,806,000. This claim can immediately be put aside: the originating motion itself does not claim damages. All that is claimed is the setting aside of the charges. But, even more fundamentally, damages are not recoverable in a proceeding for judicial review. A different form of proceeding would be required. And, in so far as the claim would be based on the breach of rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic), the Charter does not allow for the award of damages. ... ."

(Footnotes omitted.)

(my emphasis.)

62 Thus, having noted the that damages were not recoverable in a proceeding for judicial review, the Court went on to say that damages were not allowed for a breach of the Charter.[47]

63 Further, the Court noted in Pumpa v Victorian Legal Services Board & Anor,[48] where Derham AsJ stated:

"... In any event, no cause of action is created by the Charter and even if a breach of the Charter were established, the plaintiff is not entitled to an award of damages by reason of s 39(3) of the Charter;"

(Footnote omitted.)

64 In all the circumstances, it was submitted that the plaintiff's pleading in paragraph 12(c) could not be maintained in light of:

• the unambiguous language of the Statute
• the clear intention of the Parliament
• the case law.

65 Accordingly, paragraph 12(c) of the FASC was embarrassing and ought to be struck out. If that order was made, an amendment of the Amended Defence would not be necessary.

66 Counsel for the plaintiff did not argue that damages were available for a breach of the Charter.[49] Nor was a new head of damages requested. It was submitted, when considering the already existing head of damages that exist quite apart from the Charter, the Charter is relevant.[50]

67 It was submitted, when asked to consider whether the defendant had a lawful justification to do what it did - the assault - and whether the plaintiff had been falsely imprisoned, that unlawfulness arose under s39(1) of the Charter, an argument that had never been run previously.[51]

68 It was submitted the Charter becomes involved because the lawful justification relies on the statutory power of the police to arrest the plaintiff and the statutory power to use reasonable and proportionate force to effect that arrest.

69 Reliance was placed on s32(1), the interpretative provision of the Charter, so far as possible, to interpret all statutory provisions in a way that is compatible with the Charter:[52]

"(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights."[53]

70 It was submitted that this is a mandatory interpretative obligation and it is not one the Court is entitled to set to one side as a discretionary guideline. The provision provided, in every case so far as possible, to do so consistent with the purpose of the statutory provisions, they have to be interpreted in a way that is consistent with the Charter - in this case, the statutory provisions in relation to power to arrest and use reasonable and proportionate force to effect an arrest.[54]

71 Counsel for the plaintiff submitted the practical application of the Charter in this case is not really a matter merely of abstract law or hypothetical statutory interpretation. It has very real impact with how this case would run and the matters sought to be decided.[55] In the circumstances, the onus falls on the police members to establish there was a lawful basis for use of force and for the arrest - any statutory power of arrest and any statutory power to use force has to be interpreted in line with the Charter provisions (the admissions having been made as to the application of the Charter to the police members who are public authorities).[56]

72 It was the plaintiff's understanding that it would be suggested by the defendant that the manoeuvres of the police members in this case were performed in accordance with the Defensive Tactics Manual ("DTM"), leading into the suggestion that the use of force was authorised and proportionate.[57]

73 The introduction to the DTM sets out the police members are bound by the Charter.

74 Page 6 of the DTM provides:

"All defensive tactics training provided by the Centre for Operational Safety adheres to these rights and responsibilities where applicable."[58]

75 It was submitted the Charter was therefore "front and centre" of any training provided to police members. Evidence will be called in relation to this issue and the police members will be cross-examined in relation to their training and their adherence to the Charter.

76 Similarly, there is an online manual that has also been discovered - TOM Tactic Operations Manual.[59] There would be a fair amount of evidence and most likely cross-examination about the police members' compliance or otherwise with the tactical options available to them. It was said right at the start, on the plaintiff's behalf, "after conducting a risk assessment of the situation that confronted them, when considering what powers and policies were applicable and necessary to achieve the objectives, this is what needs to be taken into account, and right at the very top is [the] Charter ...".[60]

77 It was submitted, in those circumstances, it was not a dry legal argument in terms of the application and meaning of the Charter, and the scope of the plaintiff's rights thereunder, it was "front and centre" of the plaintiff's case.[61]

78 Accordingly, it was submitted the jury was going to need to understand the powers and responsibilities of the police members when engaged in the physical interaction with a member of the public, and part of that statutory framework, in fact, a very important part of it, is the Charter.[62]

79 If I made a declaration as sought in relation to a breach of the Charter, counsel for the plaintiff submitted the jury would still be required to make a finding whether the police had exceeded their powers of arrest and to do so, in understanding the statutory basis of those powers, the Charter is relevant.[63]

80 It was submitted the plaintiff's position was not importing into the jury's role effectively, determining whether the Charter had been breached. Essentially, the case law said that a breach of the Charter can supply the element of unlawfulness with respect to other causes of action. It is not the case that the plaintiff is seeking to add this into the jury's consideration, nor is it a case where the plaintiff is choosing to put in a question about the Charter in the analysis of whether or not the police had exceeded their statutory powers of arrest and powers to use reasonable force.[64]

81 It was submitted that as the Charter provides as a mandatory obligation every statutory provision in Victoria which so far as reasonably possible, has to be interpreted consistent with the Charter, this gives rise to the difficulty as to what directions will be given to the jury with respect to those statutory powers and how can that be separated from what was agreed was the judicial task, of making a declaration of unlawfulness.[65]

82 It was submitted, when answering standard questions with respect to battery and false imprisonment, the jury is required, pursuant to s32(1) of the Charter, to consider these statutory powers, so far as possible, consistently with their purpose under the Charter.[66]

83 Thus, it was submitted, the operation of the Charter "falls as a matter of evidence of what the police were doing [in terms of] training and whether they were acting in accordance with their training, and the charter falls to be considered in an assessment of the statutory powers being used by the police".[67]

84 In written submissions opposing the strike out application, it was submitted that the actions and decisions of the police members in committing the alleged assaults and falsely imprisoning the plaintiff engaged his human rights, were incompatible with his human rights and/or failed to give proper consideration of those rights.[68]

85 It was not in dispute on the pleadings that the police members were acting as public authorities within the meaning of s4 of the Charter and were so bound by the obligations regarding the conduct of public authorities, as set out in s38 of the Charter.

86 It was also admitted by the defendant that the plaintiff's human rights, as referred to in s10, s12, s21 and s22 of the Charter, were engaged, or potentially engaged, by the actions of SC Miller in "placing the plaintiff under arrest", but otherwise denied the application of the Charter as pleaded, including the alleged breach.

87 The right that was not admitted and would fall to be determined was in s8 - the right to equality before the law.[69]

88 The plaintiff claims that the conduct of the police members in the commission of the torts was egregious, so as to warrant an award of exemplary damages including, in paragraph 12(c) of the FASC, to recognise the unlawfulness of conduct by the police members, which was in breach of the plaintiff's human rights under the Charter.[70]

89 Counsel for the plaintiff submitted that the strike-out application relating to paragraph 12(c), such that it is alleged there is no arguable case, is an extreme measure. The power to summarily dismiss a claim under Rule 23.02 must be exercised with caution where there is a real question to be tried. It was submitted that was particularly so with the boundaries of the law still developing in this area and there is an arguable case pleaded.[71]

90 As the Court of Appeal stated in E A Negri Pty Ltd v Technip Oceania Pty Ltd:[72]

"In a developing area of law, such as this, the absence of any binding authority rejecting a claim of this nature leads us to conclude that such a claim cannot be regarded as being so clearly hopeless that it cannot possibly succeed. That was the conclusion reached by Vickery J, and one with which we respectfully agree. It follows that his Honour's rejection of Negri's application for a stay under r 23.01 is not attended with sufficient doubt to warrant the grant of leave to appeal."

91 It was submitted this was a high bar and the defendant's application should be refused.

92 The relevant Charter rights were particularised in the FASC:[73]

(a) the right to recognition and equality before the law;[74]

(b) the right to freedom of movement;[75]

(c) the right of liberty and security of a person and, in particular:

(i) the right not to be subjected to arbitrary arrest or detention;[76]

(ii) the right not to be deprived of liberty, except on grounds and in accordance with procedures established by law;[77]

(iii) the right to be informed at the time of arrest or detention, and properly informed about any proceeding to be brought against him;[78]

(d) the right to protection from cruel, inhumane or degrading treatment or punishment;[79]

(e) the right, when deprived of liberty, to humane treatment and, in particular, to be treated with humanity and with respect for the inherent dignity of the human person:[80]

93 Having made reference to s32(1), s38 and s39 of the Charter, counsel for the plaintiff agreed there is no decided case law regarding the operation of the Charter with respect to an order of exemplary damages but urged a different interpretation of the exact same citations the defendant relied upon.[81]

94 Counsel conceded that s39 was a very difficult provision. It was accepted the matter is one of statutory interpretation but, in interpreting the principles relied on by the defendant, counsel for the plaintiff came to the exact opposite conclusion in relation thereto. [82]

95 It was submitted the Court should carefully consider the context and purpose of s39, giving effect to every word of the provision, and on the prima facie basis that the Charter is intended to give effect to harmonious goals.[83]

96 Counsel for the plaintiff submitted that s39(1) and s39(3) requires any claim for breach of the Charter to be associated with an existing legal right. It was submitted these sections operate to preclude any stand-alone right for damages in respect of breach of the Charter, such that a breach of a Charter right may be its own head of damage.[84] It was submitted that this did not mean that consideration of the Charter was necessarily to be excluded where there was already an existing right to damages apart from the Charter.

97 In the present proceeding, the plaintiff alleged causes of action which, if the elements were established, damages may be awarded, including exemplary damages.

98 It was submitted the phrasing of s39(2) of the Charter "entitled to" and "because of" was directed at initiating legal rights or independent head of damages, where it does not otherwise exist,[85] such as in a claim for judicial review of an administrative action. In the present case, the entitlement to exemplary damages rests on, or is because of, the extant causes of action related to the police torts.[86]

99 The fact that proceedings are on foot for these intentional torts, it was submitted the plaintiff "gets around" s39(1) - "the piggy back argument". Proceedings cannot be commenced in any court only on the basis of a breach of Charter rights; however, when proceedings are already on foot, a claim relating to breach of the Charter can be added as a further ground of unlawfulness.[87]

100 It was submitted the wording of s39(3) does not detract from the "piggy back" argument and the wording of s39(4) supports it.[88] It was submitted the "no damages concern" in s39(3) was directed at independent kinds that do not otherwise exist.[89]

101 It was submitted s39(4) supported that construction, that is, that the Charter should sit beside, rather than derogate from existing rights to damages.

102 It was submitted the legislative intention was that where otherwise there was not a claim for damages for instance, any breach of the Charter did not create a new claim.[90]

103 It was submitted that the extrinsic materials - as per the Explanatory Memorandum[91] - reinforce that the focus of s39 is directed at independent rights to relief. The Legislature was absolutely concerned to prevent an independent standalone claim for compensation for breach of the Charter.[92]

104 Exemplary damages may be awarded at common law where the conduct of the defendant warrants punishment, to deter similar conduct, to condemn the actions of the wrongdoer and where the wrongdoer has acted in contumelious disregard of another's rights.[93]

105 It was submitted these issues cannot sensibly be separated from an assessment of whether the police members acted incompatibly with the plaintiff's human rights, and unlawfully, under s38(1) of the Charter. It was submitted that was particularly so given it is agreed that police members were acting as public authorities subject to its terms. It was submitted it would be an unlikely outcome if, when considering exemplary damages related to the impugned conduct of the police members, the Court was required to close its mind to a crucially relevant aspect of the statutory obligations which fall on police officers in Victoria when exercising their special powers and responsibilities.

106 The decision maker has to consider, in making an award for exemplary damages, whether or not the police members have acted in disregard of the plaintiff's rights. In Victoria, those rights do not simply exist at common law - they also exist under the Charter.[94]

107 It was not said because of the breach of the Charter there should be a separate head of damages. What was said was on orthodox common law principles, considering a claim for exemplary damages necessarily invokes the rights of the parties on classic principles.[95]

108 It was submitted it would be a perverse outcome to say you cannot look at the Charter when considering the rights of the parties when it is mandatory to apply.[96]

109 Whilst there was no authority for the "piggy backing" argument, the question was posed - how did one reconcile the pre-existing right to damages for intentional torts with what the Charter provided in relation to damages? It was submitted it was consistent with the objects of the Charter to impose an obligation on public authorities to act in a way compatible with human rights and it was also consistent with the legislature's intention that there is no new claim for damages.[97]

110 It was submitted existing case law makes it clear that s39(1) may operate to supply an element of unlawfulness to existing causes of action. Counsel relied on comments made by Bell J in P J B v Melbourne Health; Patrick's Case:[98]

"Section 39(1) does not create a new cause of action or other proceeding for obtaining a relief or remedy in respect of unlawfulness arising under the Charter. It attaches unlawfulness arising under the Charter as a ground to existing causes of action or proceedings by which relief or remedy may be obtained in respect of the act or decision on a ground of unlawfulness arising otherwise than because of the Charter. It then operates to make that relief or remedy available in that cause of action or proceeding on the ground of unlawfulness arising under the Charter, whether or not that relief or remedy is granted on a ground of unlawfulness not arising in that way. The capacity of parties to rely on incompatibility with human rights in legal proceedings, the authority of courts and tribunals (having the jurisdiction) to grant relief or remedy where unlawfulness on that ground is established and the human rights protection of the community have been enhanced to that significant extent."

(Footnote omitted.)

(my emphasis.)

111 It was therefore conceded s39(1) does not create a new cause of action. Where there is an existing action, that section "attaches unlawfulness arising out of the Charter" as Bell J explained.

112 In the present case, s12(c) of the FASC alleges that exemplary damages are to be informed by the application of the Charter, rather than awarded because of the breach of the Charter. It was submitted that was consistent with academic discussion regarding the operation of s39.

113 Having noted that s39 is one of the most difficult provisions to interpret and apply, in their annotated Charter, Pound and Evans considered a right to damages may arise because of the application of [the] Charter but not necessarily "because of a breach of [the] Charter". Section 39(3) expressly refers to a "breach of the Charter". This reference should be read as a reference to an act or decision that is made unlawful by s38:

"Read in this way, the subsection may not preclude an award of damages in respect of an existing cause of action sounding in damages where the element of unlawfulness in that that cause of action is supplied by operation of the Charter."[99]

114 Counsel for the plaintiff submitted the defendant contended for an expansive construction of s39(3), which would constrain the Court's consideration of an already existing entitlement to damages. Bearing in mind the purpose of the Charter as a whole, it was submitted there was no warrant to read s39(3) in such a way, given the purpose of the Charter.[100]

115 It was submitted, consistently with these objects and certainly not in tension with them, unlawfulness by reason of the Charter may not found a claim for exemplary damages but, nonetheless, may be a particular or relevant matter to take into account when assessing the already existing claim. This better reflects both the purpose in s39 of precluding independent claims of damages and the overriding legislative intention to provide enhanced protection and promotion of human rights in Victoria.

116 In conclusion, it was submitted the nature of the alleged conduct of the police members and the commission of the police torts and surrounding circumstances, if proven, is unlawful, disgraceful and merits an award of exemplary damages. Relevant to that determination was the failure of those members acting as public authorities to comply with the obligations imposed upon them by the legislature to consider and act compatibly with the human rights of the plaintiff.

117 Seen in this way, it was submitted the Charter breach was an aspect of the unlawfulness of their conduct and an associated reason to express the Court's disapprobation of their conduct. While the Charter does not give rise to an independent right to relief or remedy, the facts constituting its breach, as well as a finding of breach, may properly be considered an assessment of an award of exemplary damages.

118 Counsel for the plaintiff also relied on the following extracts from the Charter of Human Rights Bench Book.

"3.3. Proceedings for Breach of the Charter (s39)

Section 39(1) - proceedings for breach of s 38(1)

"When unlawfulness is directly in issue because of the nature of the proceedings, for example, as an element required to obtain the relief sought, it appears the condition in s 39(1) is met. The cause of action already exists independently of the Charter, so that the relief or remedy sought under it is sought 'otherwise than because of [the] Charter'. Additionally, since unlawfulness is an element in that cause of action, any relief sought under it would be 'on the ground that the act or decision was unlawful."

"Therefore, s 39(1) allows a breach of s 38(1) to supply the unlawfulness element in any cause of action that requires it (Carolyn Evans and Simon Evans, _Australian Bills of Rights: The Law of the Victorian Charter and ACT Human Rights Ac_t (LexisNexis, 2008) 126; see also Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 [215] (Weinberg JA))."

"Evans and Evans give the following examples of existing causes of actions or proceedings which they say 'may now have a wider scope because the unlawful conduct that is required to be proved in each of them has been expanded to include violation of Charter rights':

• • The courts' discretion to exclude evidence obtained as a result of unlawful or improper conduct
• • The tort of misfeasance in public office
• • The tort of false imprisonment
• • Industrial torts, such as for interference with a contract ... ."

"For example, courts have a discretion to exclude evidence when that evidence is obtained as a result of unlawful or improper conduct. When a public authority, like the police, acts incompatibly with Charter rights, they are acting unlawfully in terms of s 38(1). So if the police acted incompatibly with Charter rights in obtaining evidence, the evidence would have been obtained as a result of unlawful conduct and the discretion to exclude the evidence is enlivened."

"The relationship between s 39(3) and s 39(1), which allows any relief or remedy to be sought, has not been definitively determined. On one view, s 39(3) seems clear enough to preclude damages in any proceedings in which s 38(1) is relied on to establish unlawfulness on the part of a public authority, as an award of damages in those circumstances would be 'because of a breach of [the] Charter'."

"However, Evans and Evans have argued that s 39 should be interpreted as allowing a remedy for breach of Charter rights whenever possible. They argue that damages should be allowed for a breach of s 38(1), whenever that breach supplies the unlawfulness element in a pre-existing cause of action for which damages may be awarded, such as the tort of misfeasance in public office. ... ."[101]

125 It was submitted paragraphs 9 to 11 just really underscore the submissions that breach of the Charter can supply an unlawfulness in any cause of action, with paragraph 11 dealing with the issue of false imprisonment.[102]

126 In advance of the plaintiff's oral submissions, counsel for the defendant described the plaintiff's argument as "a play on words really":

"... they are sort of saying look, you can take it into account, a breach of the unlawfulness in making an award of damages but you're not giving damages for the breach of the [Charter]."[103]

127 It was submitted this "play on words" would lead the Court into error in relation to that issue, given the defendant's submissions are in relation to the clear reading and the only sensible manner in which the Court can determine this issue. Paragraph 12(c), in its entirety, directly said an award of damages, including recognition of the breach of the Charter.[104]

128 While the plaintiff relied on a New Zealand decision, counsel for the defendant referred to Warren CJ's comments in Sudi, that one should always be very careful and cautious in relation to looking at foreign jurisdictions because they are not necessarily comparable.[105]

129 In terms of the wording in s39(2), and the submission "entitled to" and "because of" were directed at initiating legal rights, where they do not otherwise exist, the same words arise in s39(3), and what they say, is there just is no entitlement to damages because of any breach of the Charter.[106]

130 It was submitted, in those circumstances, if those words were directed at initiating the legal rights in sub-paragraph (2), then the same must apply in relation to sub-paragraph (3), to deny initiation of rights in relation to independent heads of damages.

131 It was simply incorrect that the defendant contended to an expansive construction which would otherwise constrain the Court's consideration of an already existing entitlement for damages. What the defendant contends for is the application of a plain reading of the Statute, which prohibits any damages. It was not sought to curtail, in any way, the already existing common law rights to seek damages available to the plaintiff.[107]

132 In short, the plaintiff appears to accept that exemplary damages cannot be claimed under the Charter for a breach of the Charter, in and of itself.

133 However, the plaintiff contends that a breach of the Charter can be taken into account when assessing damages that the plaintiff is entitled to under a non-Charter claim - in this case, a claim under the Wrongs Act for intentional torts of battery and false imprisonment. It was submitted exemplary damages are to be informed by the application of the Charter, rather than awarded because of a breach thereof.

134 Conversely, the defendant contends that s39 and s39(4) of the Charter prohibit the plaintiff's view that a breach of the Charter can be taken into account when calculating damages under another claim.

135 There is no direct authority on this issue, as both counsel agreed.

136 Counsel for the plaintiff submitted the Charter applies to the present proceeding because the relevant police powers are set out in manuals to which the Charter applies and also the statutory powers of arrest under the Crimes Act must be read in light of the Charter pursuant to s32(1).

137 Further, it is not disputed the police members were acting as public authorities within the meaning of s4 of the Charter and were so bound by the obligations regarding the conduct of public authorities as set out s38(1) which makes it unlawful to act in a way incompatible with a human right.

138 Section 39(1) of the Charter then provides if the plaintiff has a non-Charter claim, as in the present case, he may seek relief or remedy on a ground of unlawfulness arising because of the Charter.

139 The parties agree that in the present proceeding, the plaintiff can seek declaratory relief, a matter for the trial judge, not the jury, in relation to any alleged breach of the Charter.

140 Although it was not suggested the jury would be required to answer a question on breach of the Charter, it was submitted, as the unlawfulness for the purposes of s38 and s39 is the conduct of the police members in committing the intentional torts, a breach of Charter is relevant to the jury's consideration of those issues.

141 These, however, are matters the jury would always have considered in terms of the intentional torts in this case, in the absence of any Charter provisions. The police members are already under an obligation not to use disproportionate force. The common law and Statute already supply unlawfulness which the jury will consider.[108] Any conduct of the police members that may also constitute a breach of the Charter, will be a matter before the jury in any event. The Charter does not make unlawful what is already unlawful.[109]

142 In these circumstances, and in light of s39 of the Charter - a provision that is "convoluted and extraordinarily difficult to follow" - I do not accept that the jury can take into account any breach of the Charter when assessing damages as the plaintiff submits on the "piggy back" argument.

143 Section 39 must be read as a whole, and whilst a person may seek a remedy of relief under s39(1), s39(3) provides a person is not entitled to be awarded any damages because of a breach of the Charter. Further, s39(4) provides nothing in s39 affects any right a person may have to damages apart from the operation of this section.[110]

144 A plain reading of s39(3) clearly precludes any award of damages because of the breach of the Charter.

145 Parliamentary intention as to the unavailability of damages for Charter breach is also clear, as set out in the Explanatory Memorandum which specifically stated the Parliament did not intend to create any right to compensation for a person who claims they have been unlawfully arrested or detained.

146 As Attorney-General Hulls stated, in the Second Reading Speech:

"The Government's intention is to focus on practical outcomes rather than monetary compensation."

147 As counsel for the defendant submitted, citing a number of authorities, the courts have taken a conservative approach to the interpretation to the remedies available for breach of the Charter.

148 Whilst some academic commentary may be of assistance to the plaintiff's argument, it is somewhat of a "play on words"[111] that whilst s39(3) provides no entitlement to damages for a Charter breach, a right to damages may arise because of the application of the Charter, but not necessarily a breach of the Charter.[112]

149 Given the plain meaning of s39(3) and (4), the clear intent of Parliament and the courts' conservative approach to the remedies available under the Charter, I do not accept the Charter is relevant in any way to the jury's assessment of damages in this case.

150 In any event, the jury can take into account any conduct said to be a breach of the Charter when considering the intentional torts and what, if any, damages should be awarded in relation thereto. If they thought this was a racist motivated arrest, then that is something they could take into account, independent of the Charter.[113]

151 Accordingly, paragraph 12(c) of the FASC is struck out.

152 Any consideration of the Charter relates to the declaratory relief sought.

153 Another preliminary issue for determination was whether the plaintiff is precluded from bringing a claim for psychiatric injury, having only obtained a significant injury certificate in relation to his physical injury, namely, the injury to his finger.[114]

154 In its Reply dated 24 June 2019, the plaintiff said that Part VBA of the Wrongs Act (requiring a certificate be obtained) does not properly apply in the present case by reason of s28LC(2)(a) of the Act, which provides :

"(2) This Part does not apply to the following claims for the recovery of damages for non-economic loss -

(a) a claim where the fault concerned is, or relates to, an intentional act that is done with intent to cause death or injury or that is sexual assault or other sexual misconduct."[115]

155 The defendant's main point in its submission was that the alleged torts in this application were not intentional acts and the plaintiff still required a certificate in relation to the psychiatric injury claimed - "the intentional act was not done with the intent to cause death or injury, the only intentions are in the process of the arrest".[116]

156 An example conceded to come within an intentional act under the section was road rage, where a person simply batters another person for no good reason, other than he intended to hit him - "But if a battery occurs because you arrest or imprison someone, it is not done with the intention to cause death or injury".[117]

157 It was submitted therefore Part VBA of the Wrongs Act applied to the present case and the plaintiff is required to obtain a certificate to claim a psychiatric injury. If no certificate is obtained under s28LE, then he is not entitled to recover damages for non-economic loss in any proceeding.[118]

158 Whilst it was accepted it is possible to combine separate physical impairments as a significant physical injury,[119] it was submitted the plaintiff had to go through the same statutory process in relation to his psychiatric injury, as he did with his finger.[120]

159 It was submitted s28LF of the Wrongs Act drew a distinction between injury which was physical and one which was psychiatric:

"(1) For the purposes of this Part injury to a person (other than a psychiatric injury) is significant injury if -

(a) the degree of impairment of the whole person resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; or

(aa) a certificate of assessment has been issued under section 28LNA in respect of the injury, unless a Medical Panel has made a determination as to the threshold level under Division 5; or

(b) a Medical Panel has determined under Division 5 that the degree of impairment of the whole person resulting from the injury satisfies the threshold level; or

(c) the injury is loss of a foetus; or

(ca) the injury is psychological or psychiatric injury arising from the loss of a child due to an injury to the mother or the foetus or the child before, during or immediately after the birth; or

(d) the injury is loss of a breast.

(2) For the purposes of this Part psychiatric injury to a person is significant injury if -

(a) the degree of impairment resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; or

(aa) a certificate of assessment has been issued under section 28LNA in respect of the injury, unless a Medical Panel has made a determination as to the threshold level under Division 5; or

(b) a Medical Panel has determined under Division 5 that the degree of impairment resulting from the injury satisfies the threshold level."

160 In short, there was a requirement for a certificate, as none of the statutory exceptions applied.[121]

161 Reliance was also placed on s28LJ:

"Regard not to be had to secondary psychiatric or psychological impairment

In assessing a degree of impairment of a person under this Part, regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury."

162 It was submitted, by implication, if a claim was being brought for a psychiatric claim, it must be brought separately and a certificate obtained.[122]

163 Section 28LL states:

"Assessment in relation to injuries arising out of the same incident

(1) If a person has more than one impairment resulting from injuries which arose out of the same incident, all of those impairments must be included in the one assessment.

(2) For the purposes of this Part, impairments, other than psychiatric impairments, resulting from injuries which arose out of the same incident are to be assessed together using the combination tables in the A.M.A. Guides or the methods prescribed for the purposes of this Part."

(3) For the purposes of this Part, impairments from unrelated injuries or causes are to be disregarded in making an assessment."

164 Arguably, the plaintiff could still request an impairment assessment in relation to his psychiatric injury if he wished to. If that happened, that could activate a series of responses from the defendant. Inevitably, the Court has the power under s28LZMA to stay the proceeding.[123]

165 It was submitted, in the circumstances, based on the defendant's submissions, it is incumbent on the plaintiff, now, to indicate to the Court whether or not he intends to get a psychiatric impairment assessment, in which case a stay should be granted or, alternatively, the plaintiff abandon the claim for psychiatric injury because, absent that process, he was never going to meet the threshold.[124]

166 In response to any argument that Georgopoulos v Silaforts Painting Pty Ltd[125] may apply to the present proceeding, counsel relied on the comments of the Court of Appeal in Mitchell v Latrobe Regional Hospital[126] as to the distinction between Part 5BA of the Wrongs Act 1958 and the Accident Compensation Act 1985 ("the ACA") and the Transport Accident Act. It was submitted there was a difference between the serious injury gateway under these other Acts and the Wrongs Act, where s28L does not provide a jurisdictional condition for the maintenance of a claim for non-economic loss. Rather, it precludes recovery of damages under this head unless a certificate is obtained.[127]

167 With industrial and transport accidents, a plaintiff had to go through a gateway and, once through, there was no further restriction on an entitlement to bring the claim; however, under the Wrongs Act, there is no such gateway, but before the determination, the plaintiff must produce a certificate of significant injury. On that basis, it was submitted Georgopoulos differed from the present situation.[128]

168 Counsel for the plaintiff submitted the plaintiff should be permitted to claim psychiatric injury in this proceeding, although not having obtained a certificate in this regard because Part VBA of the Wrongs Act does not apply to the present claim involving torts of battery and false imprisonment because, pursuant to s28LC(2)(a), the plaintiff does not require a significant injury certificate to recover non-economic loss damages. In any event, it was submitted the plaintiff had satisfied the physical significant injury threshold and has therefore accessed the gateway to recover damages generally.

169 As set out in paragraph 1 of the plaintiff's Reply of 24 June 2019, it was submitted Part VBA of the Wrongs Act does not properly apply by reason of s29(L)(c)(2)(a), as the plaintiff brings a claim where the fault concerned is or relates to intentional acts of assault performed with the intent to cause injury to his person[129] and an intentional act of imprisonment with the intent to cause injury, being the deprivation of the plaintiff's liberty.[130]

170 It was conceded, on that analysis, that there was not a certificate required for the finger.[131]

171 Counsel referred to s28LB, which provides:

"'injury' means personal or bodily injury and includes -

(a) pre-natal injury; and

(b) psychological or psychiatric injury; and

(c) disease; and

(d) aggravation, acceleration or recurrence of an injury or disease."[132]

172 It was submitted the definition was broad, non-exhaustive and includes generally personal injury which can include hurt and humiliation.[133]

173 Sections 28LF2(a), (aa) and (b) of the Wrongs Act provide:

"(2) For the purposes of this Part psychiatric injury to a person is significant injury if -

(a) the degree of impairment resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; or

(aa) a certificate of assessment has been issued under section 28LNA in respect of the injury, unless a Medical Panel has made a determination as to the threshold level under Division 5; or

(b) a Medical Panel has determined under Division 5 that the degree of impairment resulting from the injury satisfies the threshold level."[134]

174 It was submitted that Part VBA was drafted so as to require potential plaintiffs who made claims arising from non-intentional torts, classically negligence, to meet certain thresholds before recovering damages for non-economic loss.

175 It was submitted, in the present case, where the plaintiff alleges deliberate assaults and false imprisonment, it was an illogical construction of s28LC(a) to say they did not constitute an intentional act that was done with intent to cause death or injury.

176 In the present case, relevant to the intentional torts within intent to cause injury, was the intentional act of the police officer to trespass on the plaintiff's person and deprive him of his liberty, both being injuries to the person.

177 Reliance was placed on the New South Wales Court of Appeal decision in Hamilton v State of New South Wales (No 13)[135] as to what was an intentional act in circumstances also involving a police member.[136]

178 In Hamilton, the Supreme Court considered, relevantly, similar provisions in s3B of the Civil Liability Act 2002 (NSW), which provides:

"(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:

(a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person."

179 In Hamilton, the police member grabbed the plaintiff's left arm and swung him around. There was no doubt this act was intentional. The acts of the officer caused the plaintiff to then crash into a wall, whereupon he suffered injury.[137]

180 It was argued that the injury, as suffered by the plaintiff, as a result of his contact with the wall, was not intentional in the relevant sense - that is, the officer did not intend to injure the plaintiff, and so s3B(1)(a) was not enlivened.

"Were these intentional acts done with the intent to cause injury? The requisite intent is an actual specific intent to do some injury. It is not necessary that the defendant or here, S/Csts Mildenhall and Liebrand, actually intended to inflict the specific injuries that ensued as a natural and probable consequence of their acts.

...

There is no generally applicable definition of 'injury' in the Civil Liability Act.

But does the word 'injury' connote as a matter of law any particular necessary degree of severity? The question is of more than academic interest in the present case. It may be accepted that neither officer in their deliberate actions intended to injure Mr Hamilton's face, fracture a rib, or inflict psychological harm in the form of a post-traumatic stress disorder. On the other hand, the intention of each of them in exerting force on Mr Hamilton in the various ways I have described was to inflict pain of such a degree and for such duration as would bring him down to a position of submission on the floor where he could be restrained by handcuffs. Is the intent to cause injury of that type sufficient for the purposes of s 3B?"[138]

182 In Hamilton, the intention of the officers was to restrain, and it may be accepted that neither officer, in their deliberate actions, intended to injure the plaintiff.[139]

183 It was submitted that decision was particularly persuasive because the definition of "injury" in the Wrongs Act is broad, non-exhaustive and includes, generally, personal injury which can, on common law principles, include hurt and humiliation.[140]

184 It was submitted the police member in the present case intentionally used force against the plaintiff to take him to the ground to restrain him, as per Hamilton. Similarly, the false imprisonment constitutes the intentional deprivation of the plaintiff's liberty, which is an injury to the person for the purposes of the definition.[141] The member may not have intended to cause injury, but he did intend to restrain or restrict the plaintiff's liberty.[142]

185 It was submitted an extreme scenario like the hit and run driver relied on by the defendant was not required for an act to be covered by s28LC(2)(a).[143]

186 In State of New South Wales v Ibbett,[144] Spigelman CJ said, at paragraph [11]:

"I can see no reason why the word 'injury' in s 3B(1)(a) should not be given its natural and ordinary meaning. That meaning would encompass the harm occasioned by an apprehension of physical violence."

(Citation omitted.)

187 Basten JA[145] agreed with the Chief Justice and said that "the concept of injury" in s3B(1)(a) is not restricted to, although it would include, 'personal injury'. Ipp JA favoured reading the definition of "injury" in s11 into s3B(1)(a); however, his Honour added, at paragraph [125]:

'In my opinion, irrespective of whether the ordinary meaning of the word is attributed to "injury", or whether it is given the meaning defined in s 11, the word is wide enough to encompass anxiety and stress.'

In Ibbett the intentional act was a plain clothes police officer pointing his gun at an elderly lady demanding that she open the door. The injury he intended to cause was the anxiety and distress occasioned by the apprehension of physical violence.

There would be no doubt that the infliction of a deliberate blow accompanied with the intention to cause some injury even of a temporary nature would be sufficient. I can see no reason why the deliberate infliction of physical violence intended to cause pain and submission to the will of the police officer is not an intent to cause injury within the meaning of the Act. I am satisfied that s3B(1)(a) applies."[146]

188 It was submitted, in the present case, there was no dispute that a police member intentionally used force against the plaintiff, pushed him to the ground and restrained him ("the assault"). The issue between the parties is whether the police member had lawful authority to act as he did. Each of the alleged torts involved the deliberate application of force to the plaintiff's body to result in pain, even if transient, and submission to the will of the police member. There was no requirement that the member intended to cause the specific injury or extent of harm ultimately claimed.[147]

189 Therefore, it followed the alleged false imprisonment constitutes an intentional deprivation of the plaintiff's liberty, which is an injury to the person for the purposes of s28LB.

190 While the police members may not have intended to cause the ultimate injury, the relevant intention must relate to the action where the injury was the likely and natural consequence. Otherwise, in each and every case, evidence would need to be called as to the subjective intention of the alleged tortfeasor as to the outcome of his or her actions. Where there are any disputed facts, the requirement for a significant injury certificate could only then be determined upon determination of all the evidence rather than at the outset of the claim.

191 It was submitted, if the defendant's argument was accepted, procedurally there would need to be an analysis of each officer's, or each potential tortfeasor's, relevant intention, and that evidence would need to be called before the Court to determine whether the plaintiff is required to comply with the significant injury provisions, and that would be unworkable.[148]

192 The significant injury certificate process is not designed to answer questions of fault or causation, rather, to identify the potentially compensable injury, and then assess whether injury occurred.[149]

193 It was submitted that the defendant's construction would cut against the purpose of the provision, which is to act as a threshold or gateway, the provision limiting claims for damages with respect to certain causes of action. The significant injury certificate process is not designed to answer questions of fault or causation but, rather, identify the potential compensable injury and then assess whether it caused the threshold level of impairment.[150]

194 Further, the plaintiff already has a significant injury certificate in the required form under s28LN, certifying he has a physical injury above the threshold. That has not been challenged by the defendant. On that basis, it was submitted the plaintiff was entitled to recover damages for all the injuries in the cause of action, including psychiatric injury.

195 It was submitted, on the defendant's construction of s28LE, the injured person was required to satisfy the significant injury threshold for each injury. That construction was not supported by any existing authorities, the plain language of the section, or the relevant Second Reading Speech.

196 It was submitted such a construction was against the pertinent authority of the Court of Appeal in Georgopoulos,[151] which concerned the application of s134AB(2) of the ACA:

"A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury and arose on or after 20 October 1999."

197 The Court of Appeal held that a worker could recover damages in respect of all components of an injury which was compensable pursuant to the ACA if one of the gateway provisions had been accessed.

198 It was submitted it was significant that that section of the ACA, on its face, was a more restrictive provision than s28LE of the Wrongs Act, because it linked the entitlement to recover damages in respect of any injury to "if the injury is a serious injury". Section 28LE, however, prevents an entitlement to recovery of damages for non-economic loss in respect of an injury unless the person has suffered significant injury.[152]

199 In terms of statutory interpretation, the principles are well established and the meaning must be determined by reference to the language of the instrument viewed as a whole, having first examined the context of the provision that is being construed.

200 Counsel submitted that the construction of s28LE, as a gateway provision per the reasoning in Georgopoulos,[153] was consistent with the plain language of the text and the purpose of the section.

201 If the section was intended to require an injured person satisfied the significant injury threshold in relation to each injury claimed in the cause of action, the test for recovery of damages (significant injury) would be more directly linked to the words "an injury" in s28LE. For example the Parliament could have provided: "A person is not entitled to recover damages ... in respect of an injury ... unless that injury or such injury is a significant injury."[154]

202 It was submitted the defendant's contended for construction added unnecessary complexity and duplication not intended by the purpose of this provision.

203 It was submitted the construction of s28LE as a gateway provision per the reasoning in Georgopoulos was consistent with the Parliament's intention, as evidenced in the relevant Second Reading Speech, where it was stated:

"It is important to stress that this threshold acts only as a gateway for a court to determine whether damages for non-economic loss can be awarded to a plaintiff. ...

... the government's aims in implementing thresholds for general damages, consistent with other measures already implemented ... are to reduce the level of general damages paid in respect of a minor injury claim. ... ."[155]

204 The construction of s28LE as a gateway provision, it was submitted, is consistent with the government's aim of reducing the level of general damages paid in respect of "minor injury claims," because only those persons who have suffered a significant injury will be able to access the gateway and thereby recover for all injuries claimed in the cause of action. That section still operates to bar a person who has only sustained minor injury from recovering general damages.[156]

205 In my view, the plaintiff is not required to obtain a significant injury certificate in relation to the psychiatric injury set out in his Particulars of Injury

206 I accept the causes of action in this case - battery and false imprisonment - come within s28L(2)(c) and a certificate is therefore not required. As counsel for the plaintiff submitted, each of the alleged torts involved the deliberate application of force to the plaintiff's body to result in pain, even if transient, and submission to the will of the police member. There was no requirement that the member intended to cause the specific injury or extent of harm ultimately claimed.[157]

207 The case of Hamilton[158] is directly on point.

208 Further, in the Second Reading Speech, having listed the injuries for which a significant certificate was required, Premier Bracks stated:

"In addition, personal injury claims for general damages in relation to sexual assault or misconduct will not be subject to a threshold test."[159]

209 The approach suggested by counsel for the defendant would be unworkable and require a consideration of all the evidence in determining the intent of the police member before a decision was made as to whether there was a requirement for a significant injury certificate.

210 If my interpretation of the section is incorrect, whilst there is no direct authority on this point, as set out in the Second Reading Speech, the Government's aim in implementing a threshold for general damages was to "reduce the level of general damages paid in respect of minor injuries". A significant injury certificate has already been given for the physical injury. Adding a psychiatric injury would not be inconsistent with parliamentary intent.

211 Although the decision in Georgopoulos involved consideration of the different legislative framework under the ACA where a serious injury certificate must be obtained before proceedings are issued, rather than a significant injury certificate required before a determination of the matter, I accept a similar approach should be taken in this case. As counsel for the plaintiff submitted, the words of the ACA are really more restrictive than those in s28LE of the Wrongs Act, yet the Court, in Georgopoulos, was prepared to make this finding.[160]

212 Accordingly, paragraph 14(b) of the FAD should be struck out and the plaintiff is entitled to include a claim for psychiatric injury in this proceeding.

213 The defendant sought to further amend its FAD (earlier version) by giving Further and Better Particulars in paragraph 15 as to the allegation that the plaintiff had failed to mitigate his loss by not seeking appropriate treatment for his finger injury.[161]

214 Whilst counsel for the plaintiff submitted there was a real question mark about what questions would go to the jury on mitigation, as I indicated during the hearing, in my view, this was not a question for the jury but was a matter the jury would consider when deciding any award of damages, having heard the evidence and submissions of both counsel in relation thereto.[162]

215 Counsel for the defendant submitted there was nothing controversial about the new particulars in the FAD. The particulars provided a factual background of the allegation of failure to mitigate and put the plaintiff on notice about how this issue was going to be run at trial.[163]

216 In response, while Further and Better Particulars have been provided, counsel for the plaintiff submitted the defendant would have to establish whether any failure on the part of the plaintiff to attend medical appointments was causative of the ultimate need for amputation.[164] It was submitted paragraph 15 of the FAD ought to be struck out in its entirety because there is no evidence capable of being called at trial to support this part of the defendant's defence.[165]

217 I indicated that I was against the plaintiff on this point. As counsel for the defendant submitted, failure to mitigate could be argued without notice. Notice had however been given and Further and Better Particulars supplied pursuant to the request of the plaintiff's solicitor.

218 Counsel for the plaintiff then advised she could certainly foreshadow that she is likely to be objecting to any cross-examination of the plaintiff in relation to specific appointments in relation to which the defendant will not be calling expert evidence.[166]

219 As I indicated during the hearing, I did not believe any failure to mitigate was a separate question for the jury.[167]

220 Accordingly, any issue of failure to mitigate will be dealt with during the hearing in the usual way by the jury if they come to consider an award of damages in the plaintiff's favour.

221 Whilst not technically an issue of pleadings, I allow paragraph 15 of the FAD.

222 During the hearing, counsel for the plaintiff submitted there would be various difficulties with the matter proceeding before a jury given the complex Charter issues involved - arguing the operation of the Charter affects really every step of the analysis that needs to be conducted by the decision maker - be it judge or jury.[168]

223 Counsel for the plaintiff envisaged a difficulty there would have to be separate and distinct findings of fact made in relation to the Charter questions as opposed to the tort questions.

224 However, given my findings that consideration of the Charter is largely confined to the declaratory relief sought from me, not the jury, as to any breach of the Charter, the complexities foreshadowed by counsel for the plaintiff should not arise and can be dealt with appropriate directions during the trial.[169] Issues of unlawfulness arise independently of the Charter. Further, the jury is not to take the Charter into account in any assessment of damages.

225 As counsel for the defendant submitted, there is no difficulty with a jury trial. It would consider the evidence and form its own conclusions in relation to the allegations and whether an award for exemplary damages was warranted. In terms of declaratory relief, I will hear the same evidence and make a determination as to any unlawfulness under the Charter. There is no clash between the roles.[170]

226 The facts are very simple in this case. The question will be whether or not there was a lawful basis for the arrest and whether disproportionate force was used. Counsel for the defendant described this as "textbook variety [and mitigation was] just a matter of evidence in the usual way, [and did not] involve anything too much".[171]

227 In my view, the assessment of damages is a relatively straightforward task, with the plaintiff claiming damages for pain and suffering only for both physical and psychiatric injuries, including aggravated and exemplary damages.

228 Accordingly, the matter will proceed before a jury and any declaratory relief sought under the Charter is a matter for me, as the parties have agreed.

[1] Paragraph 4A of the Further Amended Statement of Claim dated 7 June 2019 ("FASC"); Paragraph 4B(a) of the Further Amended Defence dated 31 July 2019 ("FAD") the defendant admitted the police members attended to speak to a group of men as part of this investigation.

[2] Paragraph 4D(b) of the FAD - admitted SC Miller pushed the plaintiff with an open hand to create distance between the police member and the plaintiff and the other males.

[3] Paragraph 4B(a) of the FASC; paragraph 4B(b) of the FAD - admitted police members had viewed the CCTV images of the attempted robbery; paragraph 4B(c) of the FAD - the police members also had access to real time CCTV images from the Square which indicated the presence of a number of men, including men who potentially matched the description of the men who had committed the attempted armed robbery.

[4] Admitted at paragraph 4B(d) of the FAD

[5] Paragraph 4B(e) of the FAD, defendant admits the plaintiff was not a person of interest in relation to the attempted armed robbery or any other offence prior to the attendance.

[11] Section 8, s12, s21(2), s21(3), s21(4), s10(b) and s22(1) of the Charter. Paragraph 10A of the FASC

[14] Paragraph 2 of the defendant's written submissions

[15] Further and Better Particulars provided following request by the plaintiff's solicitors dated 10 July 2019

[16] A certificate had not been obtained for psychiatric injury

[19] [2012] HCA 55; (2012) 250 CLR 503 at paragraph [39]

[20] [2015] HCA 19; (2015) 255 CLR 304 at paragraph [42]

[22] Section 1(1) and s1(2) of the Charter

[23] Section 2(2) of the Charter

[24] Section 2(b) of the Charter

[25] Section 2(c) of the Charter; T23

[26] Section 38 of the Charter

[28] (ibid) at paragraphs [185]-[186]

[30] Section 39 of the Charter

[31] Goode v Common Equity Housing Ltd [2014] VSC 585 per Bell J

[32] [2011] VSCA 266; (2011) 33 VR 559 ("Sudi")

[34] See PJB v Melbourne Health [2011] VSC 327, [296]-[297]

[37] T26-T27. In a commentary that was recently published, there was no entitlement for damages for a breach of the Charter

[38] Victoria, Charter of Human Rights and Responsibilities Bill, Legislative Council, 19 July 2006**,** 2557

[40] (2001) 245 CLR 1

[42] [2013] VSC 129

[43] (supra) at paragraphs [116]-[117]

[44] [2015] VSCA 197; (2015) 48 VR 129

[46] [2016] VSCA 202

[48] (2017) 53 VR 394

[58] Plaintiff's Court Book ("PCB") 152

[69] T47 - comments made by the police members as to the plaintiff's racial heritage

[72] [2010] VSCA 44; [2010] 27 VR 31 at paragraph [38]

[83] Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381-2 at paragraphs [69]-[71] and [78]

[84] Contra the position in New Zealand - see Pound and Evans, Annotated Victorian Charter of Rights (2nd edition) 39.340, page 318

[93] State of New South Wales v Zreika (2012) NSWCA 37 at paragraph [61]

[95] T68-T69 - unlawfulness having been established under (1) in an existing proceeding.

[98] [2011] VSC 327; (2011) 39 VR 373 at paragraph [297]. This passage having been subsequently cited, including with approval in Bare v IPAC (2015) VSCA 197 at (392) and footnote 361

[99] This passage having subsequently been cited, including with approval in Bare v Independent Broad-Based Anti-Corruption Commission (supra)

[101] See Evans and Evans, _Australian Bills of Rights: The Law of the Victorian Charter and ACT Human Rights Ac_t at paragraphs [128]-[129]

[105] T36; Reference was also made to page 318 of the annotated version relied on by the plaintiff, where it was set out that whilst there was no express right to compensation in the New Zealand Act, the courts there have awarded damages for breach of rights; however, the Charter, more importantly, set out a preclusion from damages. So it was submitted positions were not comparable, and it was interesting that the commentators go on to cite Lewis v Australian Capital Territory [2018] ACTSC 19 where Refshauge J did not follow these NZ authorities in a case concerning the liberty rights in s18 of the ACT legislation and held there was no remedy, especially compensation for vindicatory damages under the Human Rights Act

[111] Counsel for the defendant's submission at T35

[112] Pound and Evans, Annotated Victorian Charter of Human Rights (Second edition, Thomson Reuters, 2018) page 318

[115] Section 28LC(2)(a) of the Wrongs Act 1958

[125] [2012] VSCA 179 ("Georgopoulos"); having got a significant injury certificate for the finger, the plaintiff was entitled to claim in relation to a psychiatric injury.

[126] [2016] VSCA 342

[132] Section 28LB of the Wrongs Act 1958

[134] Section 28LF2(a), (aa) and (b) of the Wrongs Act 1958

[135] [2016] NSWSC 1311 ("Hamilton")

[141] See the High Court in Ruddock v Taylor [2005] HCA 48

[144] (2005) 65 NSWLR 168; [2005] NSWCA 445

[146] Hamilton (ibid) at paragraphs [186], [188] and [192]-[193]

[150] T110; Chua v Lowthian & Ors [2011] VSC 468 at paragraphs [59]-[60]

[155] Victoria, Parliamentary Debates, Legislative Assembly, 21 May 2003**,** 1783

[159] Victoria, Parliamentary Debates, Legislative Assembly, 21 May 2003**,** 1783