Goldie v Commonwealth of Australia

REASONS FOR JUDGMENT ON ASSESSMENT OF DAMAGES Introduction 1 On 24 February 1998, Brian Goldie was apprehended and taken into immigration detention by officers of the Department of Immigration and Multicultural Affairs. His apprehension and detention was unlawful. The officers believed that he did not hold a current visa at the time and was therefore an unlawful non-citizen. They considered they had a duty to take him into detention. In the event, as it turned out, Mr Goldie was the holder of a visa and the detention was unlawful. In an action for damages for false arrest and wrongful imprisonment, he was unsuccessful at first instance on the basis that the officers, notwithstanding that they were in error as to the factual basis for his arrest, were nevertheless authorised by the provisions of the Migration Act 1958 (Cth) to take him into custody. Mr Goldie successfully appealed against that finding and the matter has now been remitted for assessment of his damages claim. Outline of the Factual and Procedural History 2 Brian Gerald James Goldie came to Australia on a six-month entry permit on 4 December 1992. His immigration history in this country thereafter was extraordinarily convoluted. It is not necessary to set it out in detail here as that has been done in other judgments to which reference is made later in these reasons. 3 On 24 February 1998, Mr Goldie was taken into immigration detention by officers of the Department of Immigration and Multicultural Affairs (DIMA) in the mistaken belief that he did not at that time hold a valid visa and was therefore an unlawful non-citizen. The officers were purporting to act under s 189(1) of the Migration Act which provides: 'If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.' Mr Goldie was held in detention until 27 February 1998 when he was granted a Bridging Visa E and released upon lodgment of a $10,000 security. In fact, as it turned out and was subsequently not disputed, Mr Goldie had held a valid Bridging Visa B at the time of his detention. The visa did not appear on departmental computer records. They showed that the last visa issued to Mr Goldie had been issued on 24 March 1995 and had expired on 27 February 1996. 4 Mr Goldie commenced these proceedings claiming damages and a variety of other orders against the Commonwealth, the Minister and various departmental officers. He claimed damages for misfeasance in public office, false imprisonment, negligence, breach of statutory duties and contravention of Information Privacy Principles in the Privacy Act 1988 (Cth). He also claimed a number of declaratory orders in relation to bridging visas issued to him and prerogative relief. 5 The hearing of the application occupied three days on 11, 12 and 13 September 2000. Mr Goldie appeared in person. Judgment was given dismissing his application on 22 December 2000 - Goldie v Commonwealth of Australia (2000) 180 ALR 609. Mr Goldie appealed against the dismissal of his application. Judgment in the appeal was delivered on 12 April 2002 - Goldie v Commonwealth of Australia (2002) 188 ALR 708. The orders made by the Full Court were as follows: '1. The appeal be allowed in part. 2. So much of the judgment given by French J on 22 December 2000 as dismissed the appellant's claim for damages for unlawful arrest, false imprisonment and unlawful detention and as ordered the appellant to pay the respondent's costs of the proceeding be set aside. 3. The matter be remitted to French J for assessment of damages for the wrongful arrest of the appellant on 24 February 1998 and the consequent unlawful detention of the appellant from 24 February 1998 until his release from detention on 27 February 1998 and for reconsideration of the question of the costs of the proceeding at first instance. 4. Otherwise, the appeal be dismissed. 5. The respondent pay the appellant's costs of the appeal.' 6 At a directions hearing on 15 July 2002, directions were made giving Mr Goldie leave to file and serve on or before 15 November 2002 any further affidavit evidence in support of the assessment of damages. Affidavits in reply were to be filed by the respondents by 16 December 2002. Further affidavits in reply by Mr Goldie were to be filed by 15 January 2003. The application was listed for hearing on 13 February 2003 in relation to the assessment of damages and reconsideration of the question of the costs of the proceedings. On 3 February 2003, a consent order was made extending the date for the filing of affidavit evidence by Mr Goldie to 15 April 2003. Consequential directions were made and the hearing date was vacated. 7 The assessment was relisted for hearing on 18 August 2003. On 14 August 2003, the respondents filed a motion for an order that the application be dismissed with costs for want of prosecution. On 18 August 2003, a motion was filed on behalf of the applicant seeking an order that the hearing of the assessment of damages be adjourned for thirty days to enable an application for a more general stay to be made. This was done on the basis that Mr Goldie wanted to prepare an application seeking a more general stay of the proceedings pending the grant of a visa to him. He had informed his solicitor that he considered he had an ongoing loss of earnings claim arising out of his unlawful detention and that he wanted personal consultations with his accountant. He had only recently been in a financial position to fund legal representation for the continuation of his action. On 18 August 2003, I adjourned the hearing of the assessment to 1 September 2003. Directions were made for the filing of submissions and the applicant's and respondents' motions were dismissed. The assessment of damages proceeded to a hearing on 1 September 2003. A renewed application on behalf of Mr Goldie for adjournment of the hearing was refused. Relevant Findings of Fact 8 The findings of fact directly relevant to Mr Goldie's apprehension and detention appear at [29]-[46] of the judgment at first instance. They may be summarised as follows: 1. On 24 February 1998, Mr Goldie was employed at the Perth office of Fluor Daniel Pty Ltd. 2. Michael Cain, an officer of DIMA formed the view that Mr Goldie had no visa, was therefore an unlawful non-citizen and should be detained under s 189(1) of the Act. 3. Mr Cain telephoned the finance manager for Fluor Daniel, Brian Kinsella, and advised him that he had reason to believe that Mr Goldie might attempt to flee and that he was considering whether to cancel his visa and take him into detention. Mr Kinsella told Mr Cain that Fluor Daniel was about to dismiss Mr Goldie who would be escorted by Chubb Security to the ground floor of the building at 1 Mill Street. 4. Mr Cain went with another departmental officer to the offices of Fluor Daniel between 3.30pm and 3.45pm on 24 February. About five minutes after they arrived, Mr Goldie was escorted into the foyer where Mr Cain identified himself and told Mr Goldie that he was satisfied he was an unlawful non-citizen because his last visa had ceased on 27 February 1996. 5. Mr Goldie told Mr Cain that his visa was valid for twenty-eight days and that he had a letter from the Cairns office of the Department advising him that he had a bridging visa. He wanted to telephone his lawyer. 6. Two officers of Australasian Correctional Management, which operates the Perth Airport Immigration Detention Centre for the Department, then escorted Mr Goldie to a van in which he was taken to the Immigration Detention Centre at Perth Airport. 7. One of the officers, Mr Guilfoyle, introduced himself to Mr Goldie and told him that they had to take him to the Detention Centre. They had handcuffs if necessary but he did not like using them. He suggested they just go to the vehicle outside the building without any fuss and without attracting any attention or embarrassment. He told Mr Goldie that if he resisted he would be restrained and handcuffed. Mr Reeves, the other officer, asked Mr Goldie to hand over his briefcase and mobile telephone, which he did albeit reluctantly. When Mr Reeves and Mr Guilfoyle were escorting Mr Goldie to the van, Mr Guilfoyle walked slightly behind and to Mr Goldie's left with his right hand through his belt. He said to Mr Goldie something alone the lines 'sorry mate, regulations' when he did that. That was the only physical contact he had with Mr Goldie. 8. Mr Goldie was not pushed, pulled or dragged at any stage. 9. Mr Reeves opened the side sliding door at the rear of the van and ushered Mr Goldie into its secure area. Mr Guilfoyle followed Mr Goldie into the rear of the van and Mr Reeves drove it to the Detention Centre. The DIMA officers did not come with him. 10. Mr Goldie was 'pat' searched by the Australasian Correctional Management supervisor on duty at the time of his arrival at the Detention Centre. He was then escorted to a holding room where he remained for five to ten minutes while paperwork required for his induction was prepared. He was also taken to a property room where he was asked to sit and answer questions relating to his personal details, including whether he had tattoos or distinguishing marks. He may have shown Mr Guilfoyle the tattoos. 11. Mr Goldie was asked to remove all articles in his pockets and any jewellery he was wearing. He was asked to remove his tie and shoelaces. He was not asked to remove all or any of the rest of his clothing. 12. Mr Guilfoyle carried out a further pat search over the clothing. Processing in the property room, including the pat search, took about forty-five minutes. 13. Mr Goldie was twice photographed with a passport camera for file and with a digital camera to create an identification card for him. He was told of the Detention Centre requirements in relation to acceptable behaviour, personal hygiene and what was accessible to him. He was permitted to make telephone calls as he wished. 14. Mr Goldie was then taken into the secure area. He was not allowed access to his mobile phone. 15. The preceding summary reflects the testimony of Mr Guilfoyle and Mr Reeves whose evidence I accepted as an accurate account of the way in which Mr Goldie was treated upon his apprehension and detention. I did not accept Mr Goldie's account of it. 16. Mr Cain made inquiries about a letter to him from the Department's Cairns' office to which Mr Goldie had referred. 17. On 25 February 1998, Mr Cain telephoned the Visa Cancellation Section and inquired about the computer system record in relation to Mr Goldie. It was confirmed to him that Mr Goldie's last visa had ceased on 27 February 1996. No subsequent visa had been granted and he had been an unlawful non-citizen since that date. This conflicted with the letter from the Cairns office. 18. Also, on 25 February 1998, Mr Cain visited Mr Goldie at the Immigration Detention Centre and interviewed him. He repeated to Mr Goldie that he was an unlawful non-citizen. Mr Goldie asked him to call his lawyer while they were at the meeting and Mr Cain did this. 19. Mr Cain told Mr Goldie he could apply for a Bridging Visa E. He was provided with the relevant application form which he completed. 20. Mr Cain believed Mr Goldie to be an unlawful non-citizen. The basis of the belief was incorrect, namely acceptance of the Department's computer records. 21. On 25 February 1998, Mr Goldie was required to undertake a medical examination. He was initially examined by Mr Christopher Colyer, a nurse practitioner employed by ACM. 22. The usual and standard procedures associated with a medical examination were carried out and included a measurement of height, taking blood pressure, provision of a urine sample and having the subject perform a number of movements to determine range of movement and flexibility. A standard examination on an examination couch would have occurred. 23. A doctor's examination on Mr Goldie was conducted by Dr Poon. Mr Goldie was not asked to disrobe. 24. The preceding account of the medical examination is based on my acceptance of the evidence of Mr Colyer in that regard. 25. On 27 February 1998, Jamie McCormack, an officer of DIMA decided to grant Mr Goldie's request for a Bridging Visa E and informed him that he would be released from detention upon complying with certain conditions, namely: (i) he would not be permitted to work; (ii) he could live at any address specified by him; (iii) he must notify DIMA of any intended change of address; (iv) he must pay the costs of his detention. Mr Goldie was required to lodge security in the sum of $10,000 before the visa could be issued. The requisite security was lodged with DIMA that day by Valerie Finnis, Mr Goldie's partner. 9 The Full Court's characterisation of what occurred, on the basis of the facts found at trial, appears at [17]-[20] of the majority judgment of Gray and Lee JJ. It is convenient to reproduce those paragraphs as follows: '[17] There was an absence of sufficient search or inquiry to make the formation of the suspicion justifiable on objective examination. Mr Cain was an experienced officer of the Department, who should have been aware of the provisions of the Migration Regulations that extended the operation of the visa granted to the appellant in November 1995, pending determination of the appellant's application for a permanent residence visa. That awareness would have provided a clear warning to Mr Cain that he would have to make more than a cursory inquiry before he could form a reasonable suspicion that the appellant did not hold a current visa. [18] It might be thought that, if the search made by Mr Cain caused him to doubt that the appellant held a visa, he should at least have asked the appellant to explain what his status was under the Migration Act. Having been instructed to consider cancelling the appellant's visa, Mr Cain, pursuant to s 192 of the Migration Act, could have detained the appellant for a limited time to question the appellant, subject to the precondition set out in s 192(2) being satisfied. As noted above, Mr Cain told Mr Kinsella that he intended to cancel the appellant's visa and take the appellant into detention, but whether he could have done so under s 501 of the Migration Act without according the appellant natural justice would have required Mr Cain's close attention. [19] Having regard to all the circumstances, we are of the view that Mr Cain's suspicion that the appellant was an unlawful non-citizen was not reasonable. It is unnecessary to speculate but perhaps, if the only facts known to Mr Cain at the time had been those contained in the computer record, it may have been that his suspicion would have been reasonable. However, Mr Cain had other facts before him. He chose to prefer to base his state of mind on the computer record, the information in which was incomplete and older than the other materials available to him. He chose to disregard the other facts, and rely on the information obtained from a partial search of the record. In choosing to form a suspicion on the basis of a computer record 2 years old, without making inquiries or checking more recent records, Mr Cain did not act reasonably. He assumed that someone else had made a mistake. This assumption necessitated the formation of a belief that the Administrative Appeals Tribunal, Mr Gregg, and possibly other officers of the department were all mistaken. In the circumstances, it was not a reasonable assumption. [20] Mr Cain's action in arresting the appellant was precipitate and not justified by s 189(1) of the Migration Act. It was not based on knowledge or reasonable suspicion on the part of Mr Cain. It was not suggested that any other ground justified the arrest and detention of the appellant. That arrest and detention was therefore unlawful and gives rise to a right to damages on the part of the appellant. In our view, the appeal must therefore be allowed in part and the matter remitted to the learned trial judge for the assessment of damages. In view of the fact that the appellant should have succeeded at first instance in respect of part of his claim, the appeal should also be allowed so far as it concerns the order that the appellant pay the respondent's costs of the proceeding at first instance. Rather than attempting to exercise the discretion with respect to costs ourselves, we are of the view that the question of the costs of the proceeding below should also be remitted to the learned trial judge, who will be in a better position to determine the whole issue of costs in that proceeding after undertaking the assessment of damages. Although the appellant succeeded on one issue, it was the substantive issue of the appeal and the appellant, although not represented by counsel, should have the costs of the appeal to allow him to recover out of pocket expenses incurred in preparing the appeal.' The Submissions 10 Counsel for Mr Goldie began his substantive written submission by pointing to the seriousness with which the courts treat wrongful arrest and false imprisonment. The circumstances of Mr Goldie's arrest at his place of work and his escort from his place of work in full view of the public in the business area of Perth added to his humiliation and hurt feelings. The means by which he was taken to the vehicle with Mr Guilfoyle holding him by the back of his trousers was, in itself, extremely upsetting and humiliating. 11 Counsel referred to Louis v Commonwealth of Australia (1987) 87 FLR 277. In that case the total period of unlawful detention was a few hours. The events in question occurred in 1982. The court decision was in 1987. Mrs Louis was awarded $10,000 and Mr Louis $20,000. It is submitted for the applicant that given the change in money values between 1987 and 2003, the equivalent amount today would be approximately $20,000 and $40,000. Also cited was State of New South Wales v Riley [2003] NSWCA 208. For false imprisonment lasting about one hour and associated with the application of tight handcuffs a sum of $40,000 was awarded. This was upheld by the Court of Appeal which, however, set aside an award for aggravated and exemplary damages in the case. 12 There is little to be gained by multiplying references to cases each of which will turn on their own facts. 13 It was submitted that when comparison was made of Mr Goldie's case with the cases of Louis and Riley, Mr Goldie should receive compensatory damages in excess of $50,000 which with aggravated and exemplary damages would be taken to a figure of $100,000. On the other hand, the respondents point to the brevity of his unlawful imprisonment and submitted that an appropriate award of general compensatory damages for his being taken into immigration detention and kept in detention for a little less than three days, would be in the region of $5,000 to $10,000. The Assessment 14 The assessment of damages for false imprisonment is necessarily informed by the general proposition that: 'False imprisonment trenches not only upon a person's liberty but also on his dignity and reputation, and this is reflected in the calculation of damages.' J Fleming, The Law of Torts 8th ed, LBC (1992) at 29 The compensatory damages are assessed by reference, inter alia, to the duration of the deprivation of liberty and to hurt or injury to the plaintiff's feelings, that is to say the injury, mental suffering, disgrace and humiliation suffered as a result of the false imprisonment - Trindade and Cane, The Law of Torts in Australia 3rd Edition, OUP (1999) at 302. 15 In a recent decision in the New South Wales Court of Appeal - Ruddock and Ors v Taylor [2003] NSWCA 262 - the Court considered an appeal on liability and an appeal and cross-appeal on assessment in relation to a judgment for damages made against the Minister for Immigration for wrongful imprisonment of the respondent arising out of his detention under the Migration Act. The respondent's visa had been cancelled and the cancellation was subsequently found, in the High Court, to be invalid - Re Patterson; Ex parte Taylor (2001) 207 CLR 391. The respondent had been detained for periods of 161 and 155 days on the basis, later held to be incorrect, that he was an alien. The Minister unsuccessfully denied civil liability in the proceedings in the Supreme Court. Damages of $116,000 were awarded against him. The Court of Appeal dismissed his appeal in respect of both liability and damages and also dismissed the cross-appeal. On the question of liability, Spigelman CJ said (at [4]): 'False imprisonment is an intentional tort. Liability turns on an intention to detain. Good faith is not a defence. The only defence is lawful authority.' 16 On the damages issue his Honour said (at [49]): 'Damages for false imprisonment cannot be computed on the basis that there is some kind of applicable daily rate. A substantial proportion of the ultimate award must be given for what has been described as "the initial shock of being arrested" (Thompson v Commissioner of Police of the Metropolis [1998] QB 498 at 515). As the term of imprisonment extends the effect upon the person falsely imprisoned does progressively diminish.' His Honour did not expand at any length upon the relevant principles. He regarded the award by the trial judge in the case as low but not so low as to reflect appealable error. In particular he dismissed a contention that the trial judge should have awarded aggravated and exemplary damages based upon the fact that Mr Taylor had spent the major part of his detention in a State prison rather than an immigration facility. Meagher JA also rejected the damages appeal and the cross-appeal. The trial judge was not shown to have been in error particularly in refusing aggravated and exemplary damages (at [81]): '... the Commonwealth, whatever its faults, was neither through its Ministries nor its officers guilty of behaving contumeliously, arrogantly or outrageously.' Ipp JA in short separate reasons agreed with Spigelman CJ and Meagher JA. 17 Wrongful arrest and imprisonment even for a short time is a serious matter whose seriousness is measured not solely by the length of the period of incarceration. Arrest and imprisonment involve a grave interference with the rights of the individual coupled with humiliation which is both private and public. The arrest in this case occurred in a public setting and added to the indignity suffered by Mr Goldie. The physical constraint applied to him was undignified, albeit not unreasonable from the point of view of the ACM officers who were apprehending him. The pat searches and interrogations and the removal of his tie and belt and shoelaces, which followed at the Detention Centre, were all factors to be taken into account in measuring the extent of the interference with his rights associated with the imprisonment and the humiliation and indignity thereby inflicted on him. 18 Acting unlawfully as it turned out, those who had responsibility for apprehending and detaining Mr Goldie acted with restraint and, in the circumstances, in a manner calculated to minimise so far as practicable the extent of the indignity inflicted on him. As in Taylor, the officers concerned could not be said to have been guilty of behaving 'contumeliously, arrogantly or outrageously'. They did no more than was necessary to the discharge of what they believed to be their duty. There was, in my opinion, no aggravation of the undoubted injury to Mr Goldie's feelings by reason of the way in which his detention was effected that could justify an award of aggravated damages. A fortiori there is no basis for an award of exemplary damages. 19 I do not consider that the compensation arising out of the false imprisonment should extend to any amount for loss of earnings. There is no evidence that Mr Goldie did lose any earnings. His arrest occurred in the immediate aftermath of his dismissal from employment. The restrictions imposed upon him by the terms of the Bridging Visa E subsequently issued did not of themselves arise out of the false arrest and imprisonment. 20 The physical interference with Mr Goldie's person by way of the pat searches and the medical examination constituted minor assaults which I take into account as an aspect of the detention process. A component of the compensation should be awarded having regard to those physical trespasses. It is perhaps academic in the circumstances of the case whether that is treated as damages for assault or an element of the damages for Mr Goldie's wrongful imprisonment. I prefer to treat it as an aspect of the latter. 21 In my opinion, an appropriate award is in the amount of $22,000. In arriving at that figure I have endeavoured to identify the various elements of the wrongful arrest and detention and to assess a component of the amount by reference to each of those elements. This is not to suggest that the final total is any more precisely based by reason of that but rather to indicate the aspects of Mr Goldie's arrest and incarceration which I have taken into account. That notional breakdown is as follows: