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[2018] ACTSC 19
General information, not legal advice.
Supreme Court of the ACT
2018-02-16
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - PROCEDURE - Periodic detention - cancellation of offenders order - loss of liberty - inquiry into whether offender's periodic detention obligations breached - legislation creating regime for automatic cancellation of periodic detention for failure to attend for periods held valid - offender not afforded procedural fairness - offender ultimately not required to serve balance of sentence either as periodic detention or full-time imprisonment - Crimes (Sentence Administration) Act 2005 (ACT)
TORTS - FALSE IMPRISONMENT - Damages - general damages for false imprisonment - public law damages - diminished reputation pleaded - economic impact of false imprisonment - aggravated damages - quantum of damages - nominal damages
CIVIL AND POLITICAL RIGHTS - HUMAN RIGHTS - Unlawful arrest or detention - compensation for - whether award of damages for statutory right should include both compensation and vindication - public law remedy - s 18(7) of the Human Rights Act 2004 (ACT)
Anti-Discrimination Act 1977 (NSW), s 118
Crimes Act 1900 (ACT), s 23
Legislation Act 2001 (ACT), ss 126(1), 127, 208, Dictionary, Pt 1, Table 142
Limitation Act 1985 (ACT)
Magistrates Court Act 1930 (ACT), ss 7, 10P, 17A
Supreme Court Act 1933 (ACT), ss 4, 19, 37U(2)
Court Procedures Rules 2006 (ACT), rr 417, 1619, 3503, 3553, 3554, 3560
Australian Constitution, Ch III
International Covenant on Civil and Political Rights, 1966, 999 UNTS 171 (opened for signature 16 December 1966, entered into force 28 January 1993), arts 1, 2, 9
Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd session, 183 plen mtg, UN Doc A/810 (10 December 1948)
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Mr P Garrisson SC, Mr P Saidi and Ms N Tarbet (Defendant)
1. In late 2007, the plaintiff, Steven James Lewis, was involved in a fight outside a Fyshwick tavern. He smashed a glass into the face of another man and was later arrested and charged with recklessly or intentionally inflicting actual bodily harm on the victim, an offence against s 23 of the Crimes Act 1900 (ACT).
2. On 24 January 2008, he was, on his plea of guilty, sentenced in the ACT Magistrates Court to a term of 12 months imprisonment but, under s 59 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act), as it then stood, the Court, by order, set the whole of the term to be served by periodic detention, a sentencing disposition since abolished in the ACT.
3. The sentence of periodic detention required Mr Lewis to serve a period of custody each weekend from early Friday evening to late Sunday afternoon during the 12 months sentence. Mr Lewis failed to attend on a number of weekends. At that time, the Sentence Administration Board (the Board) had power, and was required, to cancel the periodic detention order if an offender failed, without reasonable excuse, to attend for detention on two or more occasions.
4. As a result of Mr Lewis failing to attend as required on more than two occasions, the Board held a hearing on 8 July 2008 and cancelled the periodic detention order. As a result, Mr Lewis was required to serve the balance of the period of imprisonment in full-time custody.
5. A warrant was issued and, on 5 January 2009, Mr Lewis was arrested and commenced serving the balance of the sentence of imprisonment.
6. Mr Lewis commenced proceedings challenging the lawfulness of the decision of the Board and, on 27 March 2009, was released on bail, having served 82 days in full-time custody following the Board's cancellation of the periodic detention order. The Court, when releasing Mr Lewis, was not asked to stay the sentence and did not do so.
7. The challenge Mr Lewis made to the decision of the Board was ultimately successful when I decided that the Board had not accorded Mr Lewis procedural fairness: Lewis v Chief Executive of Department of Justice and Community Safety of the Australian Capital Territory [2013] ACTSC 198; 280 FLR 118 (Lewis (No 1)).
8. Mr Lewis was ultimately not required to serve the balance of the sentence of imprisonment either as periodic detention or in full-time custody: Australian Capital Territory v Lewis [2016] ACTCA 34; 311 FLR 77 (Lewis (No 3)).
9. Mr Lewis has now sought damages as compensation for the 82 days he spent in custody as a result of the decision of the Board, which decision was found to be invalid.
10. Mr Lewis's claim for damages and compensation is based on two grounds, the first being a common law action for false imprisonment, and the second being a claim for compensation under s 18(7) of the Human Rights Act 2004 (ACT) (Human Rights Act).
11. Mr Lewis commenced two proceedings on 25 March 2009, both challenging the decision of the Board and his consequent imprisonment. The first of these proceedings were taken against the Chief Executive of the Department of Justice and Community Safety and the Board. That resulted in the decision in Lewis (No 1).
12. These proceedings are the second of those proceedings and were taken against the Territory. In these proceedings, in addition to orders challenging the validity of the decision of the Board and its consequences, Mr Lewis seeks orders under the Human Rights Act, including an order in the nature of certiorari, and damages.
13. On 3 July 2015, this Court decided that Mr Lewis did not have to serve any balance of the term of imprisonment, as, when granted bail by the then Chief Justice, no stay of the sentence had been granted and so the sentence had expired: Lewis v Australian Capital Territory [2015] ACTSC 167; 301 FLR 102 (Lewis (No 2)). That decision was the subject of an appeal by the Australian Capital Territory, the defendant, but the appeal was dismissed in Lewis (No 3).
14. After the decision in Lewis (No 2), Mr Lewis sought and was granted leave to amend the Originating Claim in these proceedings and the attached Statement of Claim to focus only on the claim he now made for compensation for what he said was his unlawful detention following the invalid decision of the Board.
15. The defendant, the Australian Capital Territory, to which I will refer as "the Territory", filed a Defence to the Amended Statement of Claim. Mr Lewis did not file a Reply.
16. Many of the allegations in the Amended Statement of Claim were admitted by the Territory in its Defence.
17. Thus, it was alleged by Mr Lewis and admitted by the Territory that it:
18. It was also alleged and admitted that, on 24 January 2008, Mr Lewis was convicted by Magistrate Fryar in the Magistrates Court of the offence of recklessly or intentionally inflicting actual bodily harm on the victim and was sentenced to 12 months imprisonment to commence that day and to be served by periodic detention to commence on 25 January 2008 when Mr Lewis was required at 7:00pm to report to the Symonston Periodic Detention Centre.
19. It was alleged and admitted that the Board exercised functions under the Sentence Administration Act and, while it was alleged and admitted that liability attached to the Territory for any liability attaching to an "official or person" of the Board under s 179 of the Sentence Administration Act, the Territory denied that it was vicariously liable under that section for such officials.
20. It was alleged and admitted that the Board, on 8 July 2008, met in the absence of Mr Lewis, cancelled the periodic detention order made by Magistrate Fryar, ordered that a warrant issue for his arrest and, on his arrest, he be placed in the custody of the Chief Executive to serve by full-time custody the balance of the sentence of imprisonment imposed on him.
21. While it was alleged and admitted that this Court set aside that decision of the Board, the Territory denied that the Board's decision was invalid and also denied that the setting aside of the decision rendered the cancellation of the periodic detention order and the issuing of the warrant void (both of which denials seemed to controvert the decision in Lewis (No 1)).
22. Mr Lewis alleged that the decision of the Board did not authorise the lawful arrest and detention of him, but the Territory denied these allegations and alleged that the warrant issued on 8 July 2008 authorised Mr Lewis's arrest and detention.
23. While admitting Mr Lewis's allegation that he was arrested by members of the Australian Federal Police on 5 January 2009 at his place of employment, the Territory denied that the members were acting on behalf of the Territory.
24. Mr Lewis alleged and the Territory admitted that the next day the secretary of the Board "executed" a warrant under s 12(1) of the Sentence Administration Act for the imprisonment of Mr Lewis in the Chief Executive's custody for the balance of the term of imprisonment imposed, namely 9 months 1 week and 3 days. Presumably the admitted allegation that the Board "executed" that warrant was intended to mean that it was signed and presumably also issued, not the usual meaning of executing a warrant, namely to put it into effect: Sir Edward Coke, The First Part of the Institutes of the laws of England or, a commentary upon Littleton (Company of Stationers, London, 1664) at 154a.
25. While it was alleged and admitted that Mr Lewis remained in full-time detention or custody from 5 January 2009 until 27 March 2009, the Territory said that he was initially held in detention by the Australian Federal Police from 5 to 6 January 2009 under the Board's warrant and thereafter under the sentence originally imposed by the Magistrates Court. The Territory denied the balance of the allegation in the relevant paragraph which seemed limited to the allegation that this was for a period of 82 days, though I calculated it to be 81 days, the difference perhaps being because of my application of the principle established in Edwards v The Queen [1854] EngR 276; (1854) 9 Exch 628 at 631. Neither party, however, disagreed with the period being 82 days. For the purpose of these reasons, I accept that calculation.
26. Mr Lewis alleged and the Territory denied that the imprisonment was unlawful, the Territory asserting that it was justified by the sentence originally imposed in the Magistrates Court.
27. Mr Lewis alleged and the Territory denied that the imprisonment he suffered was not in accordance with procedures established by law and was contrary to his rights under the Human Rights Act. Though unspecified, these presumably were that there was a breach of the right to liberty and to freedom from arbitrary detention under s 18(1) and not to be deprived of liberty except according to lawfully established procedures under s 18(2)) and that, under s 18(7), of that Act, he was entitled to compensation for the imprisonment, an entitlement denied by the Territory on the ground that the section gave no such entitlement.
28. Mr Lewis alleged and the Territory admitted that it had not paid Mr Lewis compensation, the Territory denying any liability to pay such compensation.
29. In the alternative, Mr Lewis alleged that he had been wrongfully arrested and falsely imprisoned, thus deprived of his liberty, all of which allegations the Territory denied.
30. Mr Lewis also alleged that, as a result of the matters previously pleaded, he had suffered and sustained injuries and had suffered loss and damage. He listed 43 particulars of the injuries, loss and damage. The Territory denied that he had suffered such injuries, loss and damage. I pause to note that the particulars were all of matters that would be compensated under the provisions of the law relating to what is ordinarily called general damages. In particular, no matters of special damage were specified. As to the difference between general and special damages, see Paff v Speed [1961] HCA 14; (1961) 105 CLR 549 at 558-9.
31. Rule 417 of the Court Procedures Rules 2006 (ACT) requires a party's pleading to set out the amount of any claimed special damages that is known to the party. This is no pedantic requirement: Meredith v Palmcam Pty Ltd [2000] QCA 113; 1 Qd R 645 at 647; [7]. One of the reasons for this requirement, as explained in Ratcliffe v Evans [1892] 2 QB 524 at 528, is to warn a defendant of the claim and so to prevent surprise. That is, of course, one of the central purposes of pleadings: Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd [2010] ACTSC 20; 4 ACTLR 114 at 121-2; [28].
32. There were no facts alleged in the pleading to show what special damages were claimed nor how any special damage was to be quantified.
33. Mr Lewis further alleged that the Territory (presumably intending to allege that in reality its officers, employees or agents for whom it was liable, vicariously or under s 179 of the Sentence Administration Act, but not expressly making that allegation) had acted in such a way as to injure his proper feelings of pride and dignity and had given rise to humiliation and disgrace, distress, insult and pain and that the actions of the Territory (again, presumably its officers, employees or agents for whom it was liable) was accompanied by arrogance, insolence, insult, spite and high-handedness. The Territory denied the allegations but did not complain of the failure to plead the way in which the Territory was liable for acts of its officers, employees or agents and I did not further consider this inadequacy of the pleading.
34. Mr Lewis claimed damages, aggravated damages, exemplary damages, compensation under s 18(7) of the Human Rights Act, interest under r 1619 of the Court Procedures Rules and costs.
35. The Territory denied that Mr Lewis was entitled to the relief claimed but further alleged that, if it was liable to him for compensation or damages, then any such compensation or damages would be nominal by reason that, but for the error made by the Board, the periodic detention order would have been cancelled in any event and he would have been imprisoned as he was.
36. The Territory did not plead any other defence, such as consent, sometimes referred to as volenti non fit injuria: Herd v Weardale Steel, Coal and Coke Co Ltd [1914] UKHL 2; [1915] AC 67 at 73; Roggenkamp v Bennett [1950] HCA 23; (1950) 80 CLR 292 at 300.
37. Thus, the issues in the case as disclosed from the pleadings were:
1. what liability the Territory had for conduct of officials or others connected with the Board under s 179 of the Sentence Administration Act;
2. whether the decision of the Board was invalid when made or whether it was only invalid when set aside in Lewis (No 1);
3. whether the Territory was liable for conduct by the members of the Australian Federal Police who arrested Mr Lewis;
4. whether Mr Lewis's imprisonment from 6 January 2009 was authorised by the original sentence of the Magistrates Court or by the decision of the Board;
5. related to that, whether the imprisonment of Mr Lewis was unlawful;
6. whether s 18(7) of the Human Rights Act gave Mr Lewis a right to claim compensation from the Territory;
7. whether Mr Lewis was wrongfully arrested and falsely imprisoned; and
8. if so, what damages was Mr Lewis entitled to recover from the Territory.
38. Not all of these matters were the subject of consideration at the trial, either by evidence or submissions. This particularly meant that the issues numbered 1 and 3 were not addressed in written or oral submissions and I do not need to consider them further.
39. I shall, therefore, deal with the other issues as follows:
A. Was the imprisonment of Mr Lewis from 5 January to 27 March 2009 unlawful? I shall deal with this in the context of the claim for false imprisonment. (Issues 2, 3, 4 and 7).
B. If so, was Mr Lewis entitled to any damages and, if so, what damages? (Issue 8).
C. What, if any, compensation is Mr Lewis entitled to under the Human Rights Act? (Issue 6).
40. First, however, it is appropriate to turn to the facts and the evidence.
41. To their credit and that of their legal representatives, the parties agreed on a Statement of Facts. As agreed in that Statement, the facts of this matter are as follows:
42. In addition to the agreed facts, an agreed bundle of documents was admitted into evidence. Further, Mr Lewis made two affidavits and gave oral evidence during which he was cross-examined.
43. So far as this evidence supported the agreed facts set out above, I do not, clearly, need to refer to it again.
44. I accept that, while, when giving his evidence, Mr Lewis obviously showed that he was aggrieved by being arrested on 5 January 2009, and viewed the events of his arrest and subsequent imprisonment as being, because of the invalidity I found in the way that the Board made its decision, a demeaning and shaming experience for him, Mr Lewis was frank and open in his evidence. While much was put to him in cross-examination, his evidence was largely unchallenged and I generally accept it.
45. From all this evidence I make the following findings in addition to the facts agreed in the Statement of Facts which, of course, I accept.
46. Mr Lewis was, at 24 January 2008, when he was sentenced by Magistrate Fryar in the Magistrates Court, 27 years old. He lived with his mother and was employed at Capital Car Detailing in Fyshwick in the Australian Capital Territory.
47. At that time, he had had some contact with the criminal law. He had been taken into custody on 21 November 2003 and 13 September 2004, when, on each occasion, he had been tested for alcohol in his breath and subsequently charged with drink-driving offences. He had been arrested also on 31 October 2007 for offences of violence, including the offence which led to the sentence of imprisonment to be served by periodic detention, and property damage which were subsequently dealt with on 24 January 2008. On these occasions, he had spent some hours in custody in police stations, but he had not been otherwise imprisoned before 5 January 2008.
48. Following his sentencing by Magistrate Fryar, he generally complied with his periodic detention obligations by attending to perform periodic detention in custody, though with four breaches by three failures and a deemed failure to attend for periodic detention between 24 January and 11 May 2008. He denied that anyone had spoken to him about missing these periods, though he was forced to acknowledge that he had signed a document confirming the breach occasioned when he reported for periodic detention on 11 April 2008 while drunk and was sent away, thus being deemed to have failed to perform periodic detention on that occasion.
49. Mr Lewis agreed that he understood what a sentence of periodic detention order was and that he was required to serve periods of detention but otherwise not full-time custody. He understood that he had various obligations under the periodic detention order. He was aware that the sentence was effective until 23 January 2009. He was aware that those obligations were imposed on him personally and that he was under a personal duty to comply; it was not for the authorities to chase him up for compliance.
50. He was also aware that, if he missed periods of detention, there would be consequences, though the only consequence he mentioned was that the missed periods would have to be made up for at the end of the period. See s 58 of the Sentence Administration Act. He seemed otherwise vague about the consequences, though he did say that he recognised that they could be serious. He was not aware of the possibility of the cancellation of the order, but thought that the Court had a power to re-assess the sentence. He knew that there was a possibility of full-time custody.
51. On or about 12 May 2008, Mr Lewis decided to assist his father on his father's farm in Griffith, New South Wales. His father suffered from emphysema and was due to have half a lung removed as a result.
52. He did not tell anyone at ACT Corrective Services, which agency administered periodic detention orders, that he was leaving to work with his father and that, in order to do so, he had moved to Griffith. He said that he did not tell anyone because he was scared of what would happen, that he would be prohibited from going to help his father and forced to serve the periodic detention order.
53. He did go to Griffith and, in doing so, he breached a number of his periodic detention obligations. He did not tell anyone that he had gone because, he said, he felt scared that they might "throw [him] straight into full-time prison without ever releasing [him] for what [he] wanted to do ... So [he] just left". He did not attend any further periods of detention.
54. He worked on his father's farm for 8 weeks and his father then drove him back to Canberra on 7 July 2008. Mr Lewis knew that, on his return, there would be serious consequences, that he was likely to be in serious trouble.
55. On his return, he found five or six letters awaiting him at his home in Canberra and which had not been forwarded on to him. He knew that they were from ACT Corrective Services. He thought that they would contain "bad news" and, making a conscious choice, he did not open them. He threw them out.
56. He did not notify ACT Corrective Services of his return nor of his address. This was a conscious decision "to avoid any consequence".
57. In about October 2008, he moved out of his mother's home to a self-contained room at his place of employment because he made the conscious choice to try and avoid further correspondence with ACT Corrective Services and to prevent the authorities from contacting him directly. He knew that, by avoiding the periodic detention obligations, of which, he agreed, he was well aware, he would be in trouble, perhaps serious trouble.
58. He managed to regain work with his former employer. Even then, he made no attempts to make any contact with ACT Corrective Services because, he said, he was scared.
59. His employer knew that he was at risk of being arrested by police though he had not made his fellow workers aware of that possibility.
60. His employer also knew about his criminal record. He had had to take time off from work to attend Court and, on the occasion when he was disqualified from holding or obtaining a driver licence, his employer had to know of this, as did his fellow workers.
61. When Mr Lewis was arrested, he was at his place of work and it was about lunchtime. He saw six or seven police officers arrive. There were, at the time, six or seven fellow workers in his employer's workshop. He knew why the police were attending, so he ran to his room and hid under the bed. The police, however, went looking for him.
62. They came to his room and searched it, found him under the bed and told him to come out. He did so and they handcuffed him, no doubt because he had tried to elude them. He was told he was under arrest.
63. He felt ashamed as he saw his workmates watching him being taken in handcuffs to the police caged vehicle. When in the vehicle, the handcuffs were removed and he was "body searched". His fellow workers could see these procedures. The precise mechanism of the body search was not described but it does not appear to have been a strip search for he specifically described that later.
64. He was taken to the City Watch House and held in a cell. He later telephoned his mother who was, understandably, upset; he described her as "distraught". He was upset and scared because he did not know how long he was to be held in custody nor what would happen with his job or "[his] life" while in custody.
65. He was later taken to the Belconnen Remand Centre. He was strip-searched and given prison garb to wear and then he was placed in a cell which he said smelt of faeces. He felt upset "thinking that [his] life was over for the time being because [he had had] his freedom taken away". He thought he would lose his job and his girlfriend.
66. It was put to Mr Lewis that, when he was inducted at the Remand Centre, he told the person assessing him that his mood was "not too bad". He could not recall that, but the document on which this was recorded, accurately, was admitted as part of the tender bundle of documents.
67. Given his previous experience, this response seems quite likely. I am satisfied it accurately recorded his mood. I am not satisfied that the initial period in custody was particularly traumatic for him.
68. Later, however, he saw a fight in the prison which really scared him.
69. Mr Lewis did not have a pleasant time in custody. He found it difficult to sleep; he feared for his safety; he saw other fights which scared him; he spent much of his time in a cell, though even there he did not feel secure. There were also times when the prison was "locked down" for an entire day and night.
70. He said that he saw his mother "once every one or two weeks for an hour" while before his arrest he had spent an evening with her once a week. He also owned a motor vehicle which he was going to repair. It was left at his employer's workshop and it was apparently later taken to the wreckers because his employer needed the space. Whether he would have an action for trespass or conversion is not clear but seems likely.
71. Mr Lewis said that, while in custody, he missed working and missed his mates. Indeed, when he was released, he said he was "really happy ... because [he] hated being in prison".
72. On his release, he returned to his employment. He took a little time to find a place to live and he was assisted by his mother and friends with money and food before he received his first wages payment.
73. Although this had been the first time Mr Lewis had been in prison it was not, as noted above (at [47]), the first time he had been in custody.
74. Evidence was received provisionally about what was said would constitute special damages claimable by Mr Lewis. This included that the wages that he earned from his employer when he returned from Griffith which was a "take home" wage of $650 per week. He earned no income after his arrest while he was in prison.
75. The right to liberty is accepted as very important in a liberal civilised society. It has been recognised in the Human Rights Act but was always a value strongly protected at common law. The tort of false imprisonment is intended, by its response to a failure of the processes leading to the deprivation of liberty, to re-inforce their importance.
76. As Deane J said in Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1 at 26:
It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed.
77. The tort of false imprisonment is a form of trespass to the person. It is committed when there is a total deprivation of a person's liberty, which is caused by the defendant's voluntary and unlawful conduct. Whether the plaintiff has been imprisoned is a question of fact: Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 at 51, 54. If the deprivation of liberty is proved, the onus falls on the defendant to prove lawful justification or consent: CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [173], [400]; Myer Stores Ltd v Soo [1991] VicRp 97; [1991] 2 VR 597.
78. It is irrelevant whether the defendant intended to act unlawfully or to cause injury. In Ruddock v Taylor [2005] HCA 48; 222 CLR 612 at 650; [140], Kirby J (in dissent, but not on this point) described unlawful imprisonment as a "tort of strict liability", citing R v Governor of Brockhill Prison; Ex parte Evans (No 2) [2000] UKHL 48; [2001] 2 AC 19 at 26. His Honour explained that "[t]his is because the focus of this civil wrong is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant." There is no issue about fault: Cowell v Corrective Services Commission (1988) 13 NSWLR 714 at 743.
79. Indeed, even if the imprisonment is for the benefit of the person detained, as in a mental health facility, it is nonetheless unlawful if not otherwise legally justified: Sinclair v Broughton (1882) 47 LT 170 at 172; Marshall v Watson [1972] HCA 27; (1972) 124 CLR 640 at 642.
80. In McFadzean v Construction, Forestry, Mining and Energy Union [2007] VSCA 289; 20 VR 250 at 260; [30], the Victorian Court of Appeal expressly and unanimously endorsed the identification of the cause of action of false imprisonment articulated by Ashley J in McFadzean v Construction, Forestry, Mining and Energy Union [2004] VSC 289 at [87][94], as follows:
87 Fleming [Law of Torts, 9th ed, 1993], describes false imprisonment as -
... the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either actually causing his confinement or preventing him from exercising his privilege of leaving the place in which he is.
Within that description lie a number of aspects which require expansion.
93 Sixth, whether there is a false imprisonment is a question of fact.
81. I would simply add, lest the formulation of the aspects referred to in [92] and [94] quoted above might mislead, that the question of a plaintiff's will is a matter of defence to be raised by the defendant. See Mailau v Riordan [2001] ACTSC 13 at [28] and the cases there cited.
82. The cause of the imprisonment was the decision of the Board to cancel the periodic detention order which I set aside on public law grounds and then the issuing of a warrant for Mr Lewis's arrest. There is no doubt that a breach of public law principles can found an action at common law for damages for false imprisonment: HolgateMohammed v Duke [1984] AC 437 at 443.
83. It is accepted, in this case, that Mr Lewis was imprisoned and thereby totally deprived of his liberty. There was no issue of consent raised in the proceedings. Therefore, the issue was whether there was a lawful justification for Mr Lewis's imprisonment.
84. Mr Lewis claimed that the order made by the Court in Lewis (No 1), setting aside the Board's decision of 8 July 2008 to cancel his periodic detention, had the effect of depriving the Territory of any lawful justification for his arrest and detention.
85. The Territory submitted that the conviction entered and the sentence of imprisonment imposed by the ACT Magistrates Court in January 2008 provided a lawful basis for the detention of Mr Lewis, notwithstanding the decision in Lewis (No 1). The order made by the Magistrates Court required Mr Lewis to serve 12 months imprisonment; he "was always liable to the sentence of full-time imprisonment": Jacka v Australian Capital Territory [2014] ACTCA 49; 290 FLR 200 at 219; at [85].
86. The Territory submitted that the part of the order that required Mr Lewis to serve periodic detention was not a distinct or separate order for imprisonment; rather it was merely a disposition that allowed him to fulfil the sentence by agreeing to be bound by the conditions of periodic detention.
87. In addition, the Territory submitted that the decision to invalidate the decision of the Board did not retrospectively render the decision void ab initio.
88. These matters raise a range of issues with which I need to deal in these reasons.
89. The first issue is the nature and effect of the decisions that I made in Lewis (No 1). In addition to declarations not presently relevant, I set aside the decision of the Board which it made on 8 July 2008.
90. The proceedings in Lewis (No 1) came before the Court on an application for an order in the nature of habeas corpus. As permitted, especially where, as in this case, the case cannot then be heard to completion in a short period of time, Mr Lewis was granted bail: Re Amand [1941] 2 KB 239 at 249; Al-Kateb v Godwin [2004] HCA 347; 219 CLR 562 at 579; [26].
91. The orders sought in the Originating Application included, as well as an order in the nature of habeas corpus, a declaration of the invalidity of certain sections of the Sentence Administration Act, costs and "such other orders as the court considers appropriate": Lewis (No 1) at 123; [9].
92. No application was made in terms for judicial review or for other prerogative relief. To make such other applications when seeking a writ, or orders in the nature of, habeas corpus, is permitted and, subject to some historical limitations, not uncommon. Thus, in this Court in R v Turnbull Ex parte Petroff (1971) 17 FLR 438 at 439, the applicants sought writs of prohibition as well as of habeas corpus. On occasion, declarations have also been sought in separate proceedings heard and determined together: R v Commissioner of Police; Ex parte Ivusic (1973) 1 ACTR 65; Lewis v Minister for Immigration, Local Government and Ethnic Affairs (1988) 89 FCR 218.
93. More commonly, however, certiorari would also have been sought at the same time as habeas corpus, following the practice of the Court of King's Bench: In Re Weetra (1978) 18 SASR 321 at 326.
94. A formal order of release made on the application for habeas corpus may have the same effect as an order in the nature of certiorari: Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36; (1994) 123 ALR 478 at 480.
95. A modern trend, however, is for the Court not to require such procedural purity as it may well treat the application for habeas corpus as if it were an application for certiorari: Secretary of State for the Home Department; Ex parte Mughal [1973] 1 WLR 1133.
96. These proceedings were, after Mr Lewis was granted bail, then conducted on the basis of a two-pronged challenge to the decision of the Board; one based on administrative law claims (improper or ineffective delegation, invalid convening of meetings, failure to accord natural justice) and a constitutional claim (invalidity by granting judicial power to an administrative body). The only challenge that succeeded was that relying on the failure of the Board to accord natural justice.
97. It was in this legal and procedural context that the order referred to above (at [82]) was made. I then sought submissions from the parties as to consequential orders. As a result, on 7 November 2013, I made an order discharging Mr Lewis from his bail obligation and a temporary stay. Later, after I received further submissions, I made costs orders: Lewis v Chief Executive of Department of Justice and Community Safety (No 2) [2014] ACTSC 196 (Lewis No 5)).
98. Thus, there may theoretically be a procedural lacuna in that, as well as the decision of the Board, the warrant it issued should also have been set aside, for it was the warrant issued by the Board which was the authority to the police to arrest him and to the Chief Executive to hold Mr Lewis in custody. The warrant, of course, depended on the validity of the Board's decision and, if any attempt were made to enforce the warrant after I had set aside the Board's decision, there would be a swift response. Indeed, I would expect the Territory to accept that, despite the absence of a formal order setting aside the warrant, it should take no steps - as it has not done and given no indication of an intention to do so - to enforce it.
99. Nevertheless, the procedural position led the Territory to submit that I had not made the necessary findings which would have rendered Mr Lewis's detention unlawful. I had not found that the decision of the Board was infected by jurisdictional error nor that the decision of the Board was a nullity for all purposes.
100. Mr Lewis contended in response that there were two answers to these submissions - there was, on the issue of lawfulness, an issue estoppel which barred the Territory's submission and, in any event, the inevitable consequences of the findings I had made, in the course of making the orders I made, led to the relevant conclusions.
101. Issue estoppel is a doctrine that is designed to give proper finality to litigation. It has a wider application than the related doctrine of res judicata. In relation to these doctrines, Dixon J explained in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531-2:
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-stoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J in R v Inhabitants of the Township of Hartington Middle Quarter [(1855) [1855] EngR 264; 4 E & B 780 at p 794 [119ER 288 at p 293]], the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.
102. See also in the same decision per Starke J at 510.
103. Mr Tierney referred me to two further authorities. They did not, however, seem to me to advance his argument.
104. The first, Radmanovich v Nedeljkovic [2002] NSWSC 212, concerned the extent to which a court having, in a decision, reserved liberty to apply, could make further orders after the formal entry of final judgment. The Court held, at [8], that such liberty "does not enable a judge after a final order to completely review it"; the court's power was "limited to the working out of the order that has been made", but could not "adjudicate on any question which it was not necessary to determine at the date of the final order". His Honour said that there were three exceptions, two of which were clearly identified; the third was not so clearly identified but may be divined from what was said.
105. None of this, however, is relevant to these proceedings as there was no liberty reserved to any of the parties in Lewis (No 1) to apply. The only matter that could possibly have been relevant is that his Honour held at [7]:
There is power in a separate suit for any judge of the court to make a declaratory order as to what a previous order of the court means, but in doing that the court construes it just like any other document. It does not delve into the subjective intention of the judge pronouncing the order; see eg Ex parte Herman; Re Mathieson (1960) 78 WN (NSW) 6.
106. In this case, however, there was no obscurity in the order I had made that needed to be construed or subject to a separate declaration. This power could not permit me, in these (separate) proceedings, to declare that I had really meant to make orders that the Board's decision was affected by jurisdictional error or was a nullity for all purposes. That, as I shall later show, is the effect of what I held, a conclusion to which Foster J also came in Lewis (No 2), as I note later (at [160]), but such declaration would go beyond what was allowable.
107. In any event, it does not seem to me that any of this is relevant to the doctrine of issue estoppel or its application to this case.
108. The second decision was Minister for Immigration and Multicultural and Indigenous Affairs v Hamdan [2005] FCAFC 113; 143 FCR 398. That decision concerned the circumstances under which legal professional privilege will attach to the communication to a legal practitioner by a client of an objective fact, namely, in that case, the client's mobile telephone number.
109. Though an important decision in the fraught area of the bounds of legal professional privilege where a client of the lawyer may fail to comply with a court order or other obligations, it says nothing about issue estoppel.
110. The case concerned an asylum seeker who had been released from detention pending the determination of his application about whether he was to be removed from Australia. He was released on certain conditions, included in an order made by Mansfield J, called in the reasons for judgment "the Court Attendance Order", that he attend court when given reasonable notice to do so.
111. A decision of the High Court rendered the client's application hopeless and the case was relisted by the Court. The client telephoned his solicitor and gave her his mobile telephone number in order that she may give him legal advice but on condition of strict confidentiality. He did not attend at Court as required. The Minister sought the telephone number from the solicitor.
112. The Court, after considering a number of relevant High Court decisions, held that the mobile telephone number was given in a communication that was privileged and was not to be released. There was no consideration of or reference to issue estoppel.
113. The only conceivable relevance of that decision to this case was in an observation of the Court, in response to the Minister's submission as to the "purpose" of the Court Attendance Order, namely "that attendance pursuant to the [Court Attendance Order] would inevitably have led to detention (as the client knew)". The Court's observation at 407; [44], was as follows:
We reject the contention of the Minister that it would have been appropriate for his Honour to look, not to the actual terms of the Court Attendance Order, but rather to 'the very purpose the court order intended to facilitate' (see [19]). The meaning of the Court Attendance Order is clear. It is not in the circumstances open to be construed by reference to the history of the proceeding before Mansfield J or other extrinsic material ... It is to be assumed that the purposes that the Court Attendance Order was intended to effect was compliance with its terms. There is no legitimate scope for speculation as to what motivated Mansfield J to make the Court Attendance Order.
114. This, however, seems to support the Territory's case, namely that it is not for the court to construe a court order by investigating the motivation of the judge making the order or of the purpose it was intended to achieve.
115. I have no doubt, however, that the doctrine of issue estoppel would extend in this case to, at the very least, the finding that I had made that the Board had failed to accord natural justice to Mr Lewis and that, therefore, its decision was of no effect.
116. I did not find expressly, however, that the decision was a nullity for all purposes nor that it had no effect prior to the date on which I set it aside.
117. These issues remained to be resolved. They were real issues in these proceedings and I address them below. I do not accept, however, that the Territory was estopped from raising them, for, while the invalidity of the Board's decision was clearly decided in Lewis (No 1), it cannot be said that the full implications of that, namely the extent of the invalidity, especially in relation to any operation of the Board's decision prior to it being set aside, had been decided.
118. Thus, the doctrine of issue estoppel did not operate in the way that Mr Tierney submitted.
119. There was a further problem, which, however, was not addressed in the written or oral submissions of Mr Lewis. The parties were different in the two proceedings. In Lewis (No 1) the defendants were the "Chief Executive of the Department of Justice and Community Safety" and the "Sentence Administration Board". In these proceedings, the defendant was the "Australian Capital Territory". All three were, however, represented in the respective proceedings by the ACT Government Solicitor.
120. It may be accepted that the Chief Executive is a servant and officer of the Territory and that the Board is an agency established without legal personality as a Committee to carry out statutory functions of the Territory. For the doctrine of issue estoppel, the relevant parties must be identical in each case or the privies of the parties. That is to say, there must be a privity between the party in the concluded action and the action in which the estoppel is raised. Privity is said to arise from blood, title or interest: Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271 at 279.
121. In this case, the only privity that could arise is from interest.
122. In Ramsay v Pigram, it was held that neither the State Government nor the Police Department were privies of a police constable involved in earlier proceedings. Indeed, Windeyer J went further to say at 290 that joint tortfeasors are not privies nor, it would seem, were masters and servants.
123. Nevertheless, the Territory, very properly in my view as a model litigant, accepted that the Board's decision had been set aside and held to be invalid. That issue did not have to be re-litigated. The only issue was the effect, if any, of the Board's decision before it was set aside. It was not subject to an estoppel barring the Territory from litigating them in these proceedings.
Was the decision of the Board a nullity and void ab initio?
124. The answer to this question, on which depends the validity of acts done in reliance on the Board's decision before it was set aside, is dependent on the nature of this Court's finding that the Board's decision was invalid.
125. There is no doubt that judicial review, other than by appeal, is a means of supervision of an inferior court or a tribunal. Such review may be made by prerogative order (the prerogative writs having been abolished by r 3553 of the Court Procedures Rules) such as orders in the nature of certiorari, mandamus and prohibition: r 3554, or by review by means of an order in the nature of habeas corpus (see r 3503 and J (by his litigation guardian Vardanega) v Australian Capital Territory [2009] ACTSC 170; 172 ACTR 1) or by statutory judicial review under, for example, the Administrative Decisions (Judicial Review) Act 1989 (ACT).
126. A distinction in this context has been drawn by the High Court in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 176-80. On the one hand, there are inferior courts, which have jurisdiction to decide questions of law and questions of fact which are involved in the matters which it has jurisdiction to determine, errors in which will not ordinarily constitute jurisdictional error, though such courts may still commit jurisdictional errors. On the other hand, there are tribunals, which are not part of a hierarchical legal system entrusted with the administration of justice under the Commonwealth and State Constitutions, and which may fall into jurisdictional error by the decisions they make and the manner of making them.
127. The significance of the identification of a decisional error as a jurisdictional error is that a decision made as a result is no decision at all: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at 614-5; [51]; 646-7; [152]. Such a decision is regarded as having no legal effect at all, subject to the reservation referred to below (at [128]). Such decisions are unlike the decisions of a superior court, for instance, where a decision, even beyond jurisdiction, has legal effect until set aside: New South Wales v Kable [2013] HCA 26; 252 CLR 118. The same is not true, however, for inferior courts where a decision that the inferior court makes which is beyond its jurisdiction is null and void: Pelechowski v Registrar, Court of Appeal (NSW) [1997] HCA 19; 198 CLR 435 at 445; [22]; 456-7; [71].
128. The Territory relied, however, on the decision in Jadwan v Secretary of Department of Health and Aged Care [2003] FCAFC 288; 145 FCR 1 at 16; [42], where it was pointed out that a decision affected by jurisdictional error, even of a tribunal, will not universally be devoid of consequences; the legal and factual consequences, if any, will depend on the particular statute.
129. Nevertheless, the authorities do maintain the difference in what is regarded as a jurisdictional error when error is made by an inferior court and by a tribunal because of these consequences.
130. There is no doubt that, ordinarily, for a tribunal to fail to accord procedural fairness to a party before it is to commit a jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at 508; [83]. It follows, then, that a tribunal in the course of deciding a matter before it and which fails to accord procedural fairness to a party, has not made a decision at all.
131. In Lewis (No 1), I found that the Board had not accorded Mr Lewis procedural fairness. Thus, it was submitted by Mr Lewis that it had not made a decision at all. The cancellation of the periodic detention order was invalid and of no effect as was the decision to order that Mr Lewis be placed in the custody of the Chief Executive. It followed, so the submission ran, that the consequent imprisonment was unlawful.
132. The Territory contested these submissions. In the first place, it submitted that the order was not invalid upon its making but only when it was set aside. In any event, it further submitted, the detention was authorised by the original sentence imposed by Magistrate Fryar which was valid and had not been set aside.
133. Unless one or other of these arguments is sound, then it seems to me that the challenged decision of the Board was unlawful and the imprisonment of Mr Lewis was thus itself unlawful.
134. It is convenient to deal with the questions in the reverse order.
Did the original sentence authorise the subsequent imprisonment of Mr Lewis?
135. At a very general level, the obvious answer to this question is in the affirmative; Mr Lewis was sentenced to imprisonment for 12 months.
137. A periodic detention order is a sentence of imprisonment: R v Creighton [2011] ACTCA 13 at [47].
138. The Territory, however, relied on the analysis of the sentence provided for in Jacka v Australian Capital Territory. That was a decision on appeal from a finding I had made when dismissing a challenge by Mitchell Jacka to the cancellation of the periodic detention order made when he was sentenced to imprisonment. It was a similar challenge to that made by Mr Lewis; indeed, both challenges were heard together. I dismissed that challenge by Mr Jacka because there was no breach of natural justice and I rejected the other challenges for the same reasons that I had rejected when considering those made by Mr Lewis: Jacka v Australian Capital Territory [2013] ACTSC 199.
139. In the Court of Appeal decision of Jacka v Australian Capital Territory, Gilmour J, with whom Walmsley AJ agreed and with whom Penfold J generally agreed, held (at 216; [61]) that:
[t]he legislative scheme involved here empowers a sentencing court to set, as part of the sentencing order, a period to be served by periodic detention.
(Emphasis in original)
140. There were, in the case of Mr Jacka, two sentences of imprisonment in each case to be served wholly by periodic detention.
141. His Honour continued (at 218; [74], [76]):
The setting by the court, in each case, pursuant to s 11(2) of the [Crimes (Sentencing) Act 2005 (ACT)], of the whole of the period of each of the sentences of imprisonment to be served by periodic detention in the orders sentencing the offender to imprisonment is not, in either case, a separate or distinct order for imprisonment. Rather it constitutes in each case the order of the court as to the manner in which each sentence of imprisonment is to be served.
...
Each order carried with it the force of the statutory regime under the Sentence Act and the Sentence Administration Act in respect to offenders sentenced to imprisonment but to be served by periodic detention.
142. His Honour then referred to the powers of the Board, in particular, the power to cancel the periodic detention order, finding (at 219; [78]):
The powers thus exercisable by the board, and exercised in the case of the appellant, did not constitute a re-sentencing. Rather, they are powers of an administrative character which give effect to the sentence imposed by the magistrate.
143. His Honour adopted my characterisation of the effect of the order by the Board cancelling the periodic detention order by reference to what I had said in Lewis (No 1), his Honour saying (at 219; [81]):
As the primary judge correctly explained in Lewis at [278]:
[278] ... [T]he cancellation does not change the order of the Court. The order is for imprisonment. It sets a period of periodic detention; that involves and permits a regime which entitles the offender to serve the period of imprisonment in a particular way but only so long as he or she complies with the conditions which he or she undertook to obey.
144. This was further amplified by Penfold J in her Honour's additional remarks as follows (at 210; [9]-[10]):
There is a clear legislative intention that a judicial officer who includes a periodic detention order in a sentence not only adopts the consequences of that order as part of his or her sentencing disposition but also points out to the offender those consequences, including the liabilities of the offender in the event that he or she does not comply with the periodic detention order.
In my view, this further undermines the proposition that in cancelling a periodic detention order in accordance with the relevant legislation, the Board is in any way interfering with the contents of, rather than simply implementing, the rights and liabilities determined in the exercise of judicial power by the judicial officer concerned.
145. Finally, Gilmour J pointed out the overriding liability of Mr Jacka (at 219; [85]):
He was always liable to the sentence of full-time imprisonment, but permitted by virtue of the terms of the order of imprisonment to serve his sentence by periodic detention conditioned always by his performance of his periodic detention obligations.
146. In summary, the Territory's submission was, relying on this latter characterisation of the sentence, that Mr Lewis was subject to a valid sentence of the Magistrates Court which had not been subject to any appeal or review and not set aside or varied, making him "liable to the sentence of full-time imprisonment".
147. This may be accepted. The Territory then submitted that the sentence was constituted by two "charters": one of which was constituted by the finding of guilt and the sentence of imprisonment and a separate charter which was constituted by the periodic detention obligations. The controversy before the Board, it was submitted, was a controversy about the periodic detention obligations, which controversy was "legally, factually and temporally separate from the sentence".
148. While I do not necessarily embrace the "charter" characterisation, for its content is rather vague, I accept that there was an identifiable distinction between the terms of the sentence of imprisonment and the implementation of it by virtue of the periodic detention order which imposed obligations on Mr Lewis and duties on officers of ACT Corrective Services to monitor and administer those obligations. The Board, too, had a statutory role in the administration of the periodic detention obligations.
149. To separate these issues too clearly, however, is to ignore the inseparable relationship between them as articulated by Penfold J in the extract from her reasons in the Court of Appeal in Jacka v Australian Capital Territory above (at [144]).
150. While the order of Magistrate Fryar would be sufficient to justify Mr Lewis serving 12 months in full-time custody, this would only be so if the periodic detention order was cancelled. Until it was cancelled, as I said in a passage adopted by the Court of Appeal and cited above (at [143]), Mr Lewis was entitled to be at liberty between 4:30pm on each Sunday and 7:00pm the following Friday: s 52 of the Sentence Administration Act. During this time, he was taken to be serving the imprisonment imposed on him, even though not in custody: s 41A of the Sentence Administration Act.
151. To put it bluntly, despite the sentence of 12 months imprisonment, Mr Lewis would, without more, be at liberty and relatively immune from restrictions effected by ACT Corrective Services for the Territory between those times. That is to say, without the cancellation of the periodic detention order, and without other lawful interference with his liberty (such as arrest for another offence, a custodial sentence for another offence or the like), it would be unlawful for him to be taken into custody solely on the basis that Magistrate Fryar had sentenced him to 12 months imprisonment. Nothing in the Court of Appeal decision in Jacka v Australian Capital Territory suggests or holds to the contrary.
152. Indeed, the Sentence Administration Act makes the distinction clear. As noted above, under s 41A, the performance of a detention period (that is from 7:00pm on Friday to 4:30pm on Sunday) is taken to be service of 7 days of full-time custody; such performance under the Act is constituted by reporting to the place of detention and perform in custody activities or work there (s 49) and during other times, at liberty, complying with any applicable obligations (s 42), such as not committing any other offences, seeking approval for any change in his contact details and complying with directions of the Director-General given under the Corrections Management Act 2007 (ACT): s 43 of the Sentence Administration Act. While at liberty during the week, he is, however, not subject to searches such as are able to be required under Pt 9.4 of the Corrections Management Act, and may during these periods work, drink alcohol, drive a car and so on without restriction.
153. As a consequence, the authority of the sentence does not extend to detaining Mr Lewis in full-time custody other than from 7:00pm on Friday to 4:30pm the following Sunday unless the periodic detention order has been cancelled.
154. Thus, it is correct to say that, if the periodic detention order is cancelled, the detention of Mr Lewis in full-time custody for the sentence of the term of imprisonment, would be authorised by the sentence of the Magistrates Court, but it is only upon that cancellation that this authority applies. Until then, the sentence only authorises Mr Lewis's detention from 7:00 pm each Friday until 4:30 pm each Sunday and no longer.
155. In this case, of course, I found in Lewis (No 1) that the decision of the Board was invalid. It could not, therefore, bring into operation the authority of the sentence imposed by Magistrate Fryar for the detention of Mr Lewis in full-time custody, beyond the periodic detention days. The submission of the Territory to the contrary is rejected.
156. That, however, requires consideration of the second relevant submission of the Territory, namely that the order of the Board was valid until set aside.
Was the order of the Sentence Administration Board valid until set aside?
157. The period of imprisonment that Mr Lewis submits was unlawful was from the date on which he was arrested on 5 January 2009 until he was released on bail on 27 March 2009.
158. I set aside the order of the board on 1 October 2013. Thus, the whole of the period of full-time custody during which, Mr Lewis complains, he was unlawfully detained was served prior to the order being set aside.
159. The Territory submits, and Mr Lewis disputes, that, until set aside, the order of the Board was valid and supported Mr Lewis's detention in full-time custody.
160. Certainly, Foster J in Lewis (No 2) at 106; [23], referring to the decision of the Board on 8 July 2008 to cancel the periodic detention order made when Mr Lewis was sentenced in the Magistrates Court, held that:
Upon the true construction of the Administration Act, if that cancellation was invalid, the cancellation order never came into operation and was ineffective right from the start.
161. This contention is somewhat complicated because the law in this area is still in somewhat of a state of flux, but I shall do my best to navigate the issues.
162. As I have earlier stated (at [127]), it appears that a jurisdictional error renders a decision of an inferior court or a tribunal a nullity and of no force; it is no decision, is void ab initio and the decision can be ignored.
163. This is one reason for the appearance of provisions such as s 17A of the Magistrates Court Act 1930 (ACT), granting certain immunity to Magistrates. See Fingleton v The Queen [2005] HCA 34; 227 CLR 166, though in the criminal context.
164. In Craig v South Australia at 176-7, however, the High Court made a distinction between inferior courts and tribunals whereby the errors in the latter that were jurisdictional were regarded as more widely drawn. This created what was considered a distinction in relation to inferior courts between errors of jurisdiction (jurisdictional errors) and errors within jurisdiction which could only be corrected on appeal.
165. As the Territory noted, this distinction has been regarded as problematic. In Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at 141; [163], the High Court noted the difficulty in drawing a bright line between jurisdictional error and error in the exercise of jurisdiction but declined to reject the distinction.
166. The Territory further submitted that the "rigid taxonomy" between inferior courts and administrative tribunals has also been relaxed, especially in the non-Commonwealth sphere, where the separation of powers doctrine has, perhaps, not had such pervasive effect. In Lewis (No 1) at 167-76; [299]-[355], I held that there was no strict separation of powers in this Territory which would, for example, prevent the Territory from vesting judicial power in an administrative tribunal as, indeed, it has in the ACT Civil and Administrative Tribunal: see Lewis (No 1) at 169; [306].
167. I held in Lewis (No 1) at 166; [290], however, that the cancellation of periodic detention by the Board was not an exercise of judicial power.
168. This was an important matter. The Territory submitted that the Board had many of the characteristics of an inferior court. It listed the following:
(1) Its chair and deputy chair must be judicially qualified in that they must either be an existing or retired magistrate or judge, or be qualified for appointment as a judge (s 24(8));
(2) It exercises jurisdiction as part of a system for the administration of criminal justice;
(3) It exercises jurisdiction within the terms of a sentence imposed by a court; and
(4) It exercises a range of quasi-judicial powers including the following:
- (i) the power to take evidence on oath (s 208(3)(a));
- (ii) the power to compel answers and documents (s 208(3)(b) and (c));
- (iii) the power to take evidence by evidence by videolink (s 207);
- (iv) the power to issue warrants to arrest and bring offender to a hearing (s 206);
- (v) the power to make a remand order during an adjournment to a hearing (s 210);
(5) Its inquiries are subject to the rules of natural justice generally (s 196(1)) and specifically;
(6) It is required to keep a written record of proceedings at an inquiry (s 202);
(7) Its inquiries are legal proceedings for administration of justice offences ( s 193);
(8) Its certificates and records are admissible as evidence in any legal proceeding (s 189);
(9) Its constitution, appointments and quorum attract a presumption of regularity (s190);
(10) An offender at a hearing for an inquiry is entitled to legal representation (s 209(a)); and
(11) Legal representatives and witnesses have litigation immunities and protections (s 212).
[Footnotes omitted though I have inserted, where relevant, the applicable section of the Sentence Administration Act at the end of each item in the list].
169. It is possible to make a critical analysis of this list. Some of the characteristics are by no means unique to courts or inferior courts. Some, such as exercising "jurisdiction as part of a system for the administration of criminal justice" are so vague as to be unhelpful.
170. I should also briefly comment on the power to issue warrants and to remand offenders. Neither of these are exclusively judicial powers. The issuing of a warrant is an administrative act, though the power is often reposed in a judicial officer: Love v Attorney-General (NSW) (1990) 169 CLR 307 at 319-22; Malubel Pty ltd v Elder (1998) 88 FCR 242 at 249; Chung v Elder [1991] FCA 369; (1991) 31 FCR 43.
171. Similarly, the detention of a person is not necessarily a judicial act. There is no doubt that detention as a punishment is essentially a judicial act and can only be imposed by a court: Lim v Minister for Immigration (1992) 176 CLR 1 at 27; Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 84-5, 161. This may depend on context, for the imposition as a matter of discretion of a sentence of imprisonment not otherwise imposed, when imposed in an administrative proceeding is likely to have "the hallmarks of judicial power": Victorian Police Toll Enforcement v Taha [2013] VSCA 37; 49 VR 1 at 79; [241]. On the other hand, legislation may properly authorise administrative bodies to detain persons for proper purposes: Kruger v Commonwealth at 85, 161; Vasilykovic v Commonwealth [2006] HCA 40; 227 CLR 614 at 648; [108]; Lim v Minister for Immigration at 28, 55.
172. Essential characteristics of a court in our system of justice are judicial independence, protection of tenure and being part of a hierarchical structure of appellate review, some of which are described by Gleeson CJ in North Australian Aboriginal Legal Aid Services Inc v Bradley [2004] HCA 31; 218 CLR 146 at 152; [3]. Significantly, these are not present in the statutory establishment of the Board, suggesting that the Board is to be seen as a tribunal and not as an inferior court.
173. There has been some consideration of the position of similar tribunals in this Territory. For example, in Singh v Sentence Administration Board of the Australian Capital Territory [2004] ACTSC 74, the same name as that of the Board had been given to a body somewhat differently established under the Rehabilitation of Offenders (Interim) Act 2001 (ACT). It, however, had most of the characteristics that the Territory submitted that the Board had as noted above (at [168]). Thus, there were provisions in the Act establishing those matters numbered 1, 4 (except (iii) and (v)), 5, 6, 7, 8, 9, 10 and 11. Those in 2 and 3 may be presumed. In that case, it was held that the proceedings of the Board as there constituted was subject to review by this Court under the Administrative Decisions (Judicial Review) Act and that a failure to observe the rules of natural justice would invalidate the decisions of the Board.
174. It is important to note that the argument now put to me was not, it appears, raised in that case, so it cannot be held to have directly decided the issue. It is, however, relevant and persuasive.
175. Nevertheless, the Territory further submitted that the taxonomy rigidly dividing inferior courts from tribunals has been more recently relaxed. Thus, the majority in the High Court said in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at 573; [69]:
Behind these conclusions lies an assumption that a distinction can readily be made between a court and an administrative tribunal. At a State level that distinction may not always be drawn easily, for there is not, in the States' constitutional arrangements, that same separation of powers that is required at a federal level by Ch III of the Constitution ...
176. I found in Lewis (No 1) at 174; [334], that, in the relevant sense, this approach was applicable to the Australian Capital Territory, namely that there is no strict doctrine of the separation of powers that applies to the polity created by the Australian Capital Territory (Self-Government) Act.
177. The majority in Kirk v Industrial Court of New South Wales at 573; [69]-[70], continued:
178. The last sentence rather challenges the Territory's submission, flowing from its submission that the distinction between inferior courts and tribunals is no longer as rigid as has been suggested in the past. Thus, the Territory submitted:
Whether a decision-making body has authority to determine a question authoritatively must be answered by reference to the essential characteristics of the body making the impugned decision and the statutory scheme under which it operates.
179. Nevertheless, the High Court in Kirk v Industrial Court of New South Wales at 572-3; [68]-[69], re-affirmed the distinction between an inferior court and an administrative tribunal, as observed by Griffiths J in SZUWX v Minister for Immigration and Border Protection [2015] FCA 1389 at [41], [45].
180. Because of the greater fluidity of the notion of a court, however, for the purposes of determining the extent of jurisdictional error, some tribunals have been held to enjoy the greater protection from challenge on the basis of jurisdictional error that has been accorded to inferior courts. Thus, Fitzgerald JA, though in dissent but on the issue not discussed by Powell JA or Sheppard AJA, held in Absolon v NSW Technical and Further Education Commission [1999] NSWCA 311 at [146], that the Equal Opportunity Tribunal "was similar to the ordinary jurisdiction of a court of law", in particular that it had authority to decide questions of law as well as questions of fact.
181. In addition, there was, at the time, a right of appeal from a decision of the Tribunal to the Supreme Court: s 118 of the Anti-Discrimination Act 1977 (NSW).
182. Similarly, in Craig v Workers Compensation Tribunal [2004] SASC 410; 90 SASR 490 at 502; [71], the Court held that the Full Bench of the Workers Compensation Tribunal was a court or, at least, enjoyed the more limited application of invalidity for jurisdictional error enjoyed by a court. This was, at least in part, because it was a body established to decide questions of law and questions of fact.
183. Despite this, I have come to the view that the Board is not a court-like tribunal which would attract a more limited application of jurisdictional error to review of its decisions. That is to say, its decisions are subject to review for jurisdictional error in the wide way to be seen in the application of these principles applied in Re Refugee Tribunal: Ex parte Aala, especially as to the denial of procedural fairness.
184. The jurisdiction of the Board is a significant factor in coming to this view. The Sentence Administration Act sets that out. At the time, its functions were in relation to periodic detention, parole and the release of certain prisoners on licence. Its role in relation to periodic detention has since been removed and similar provisions made in relation to the replacement sentencing disposition, the intensive correction order, as to which, see R v Ngerengere [2016] ACTSC 299 at [17]- [23].
185. In respect of periodic detention, the role of the Board was set out in the Sentence Administration Act as it then was. It involved issues surrounding the supervision of the sentence. Thus, it conducted inquiries into alleged breaches of the terms of the periodic detention (s 66) and had powers to respond if a breach is proved. Those powers included taking no further action, giving a warning to the offender, giving the Chief Executive, now the Director-General (who is the person into whose custody a person in prison, whether full-time or during the detention period, is committed), directions, changing the obligations of the prisoner, suspending the periodic detention order (which requires the offender to serve a period of full-time custody during the period of suspension) or cancelling the periodic detention order: s 68.
186. In certain circumstances, then set out in the Sentence Administration Act, such as failure to attend for detention (s 69) or on further conviction for an offence (s 70), the Board was required by the Act to cancel the periodic detention order. The Board was also given power to review a decision of the Chief Executive, such as whether to approve an offender's application not to perform periodic detention or to extend the period of the order (s 71). The Board had a role in managing the service of the periodic detention order by reviewing the order (s 73) which might have resulted in directions being given to the offender such as changing the obligations under the order, cancelling the order or referring the offender back to the court for reconsideration of the order where the offender could not perform the periodic detention (s 75).
187. These matters constituted the administration of the sentence, that is its supervision and management. These are the responsibility of the Executive branch of government, not the judicial branch, as explained by Dixon J in Flynn v The King [1949] HCA 38; (1949) 79 CLR 1 at 8.
188. While the orders that the Board could make may have involved an imposition or privation on the offender, that has been held to be a proper role of the Executive in administering a sentence: Bromley v Dawes (1983) 34 SASR 73; Sandrey v South Australia (1987) 48 SASR 500. The imposition of conditions, such as in a periodic detention order or a good behaviour order, has been long regarded as an administrative matter, even when performed by a judge: X v South Australia (No 3) [2007] SASC 125; 97 SASR 180 at 222; [155].
189. As noted in the Court of Appeal decision in Jacka v Australian Capital Territory at 213; [78], the powers exercised by the Board, including the power of cancelling a periodic detention order, are administrative and not judicial.
190. So far as the role of the Board in relation to parole was, and is, concerned, much the same applies. The Board, under the Sentence Administration Act has the responsibility of granting an offender release on parole by making a parole order (s 120) and then supervising the parole order. The process of supervision is similar to that in respect of a periodic detention order - it may hold an inquiry into alleged breaches (s 146) and, if it finds a breach, it has powers similar to those which it has where a periodic detention order has been breached (s 148). The Board can also review the parole order at any time (s 153) and it has similar powers to those it can exercise on a review of periodic detention (s 156) including the cancellation of the parole order.
191. While the precise classification of the functions of parole boards has been the subject of some controversy and there is, perhaps, less clarity, it does seem to be regarded as, at best, quasi-judicial: Yeldham v Rajski (1989) 18 NSWLR 48 at 62, citing Imbler v Pachtman [1976] USSC 26; 424 US 409 (1976).
192. In Canada, the Supreme Court has expressly held that a decision as to whether an offender should be released on parole is an administrative decision and not a judicial or even quasi-judicial decision: Howarth v National Parole Board [1976] 1 SCR 453 at 472. Similarly, in the United Kingdom, parole boards have been held not to be courts: James v Secretary of State for Justice [2010] 1 AC 553; R (Brooke and another) v Parole Board [2008] EWCA Civ 29; [2008] 1 WLR 1950. The same conclusion appears to have been reached in New Zealand: Miller v New Zealand Parole Board [2010] NZCA 600 at [41], [44], [50]-[51], [74].
193. In this Territory, there was an attempt to challenge a decision of the Parole Board established under the Parole Ordinance 1976 (ACT) (since repealed) under the Administrative Decisions (Judicial Review) Act 1977 (Cth), a challenge only available for administrative decisions. That challenge, in Riordan v Parole Board of the Australian Capital Territory [1928] ArgusLawRp 86; (1981) 34 ALR 322 was rejected. It was noted, however, that the parties did not argue the issue of whether or not the decision was one of an administrative character as the objection to competency, the subject of the decision, was resolved on the basis that there was no decision, but the characterisation seems to have been assumed.
194. As noted above (at [173]), in Singh v Sentence Administration Board of the Australian Capital Territory, a decision of that board to revoke parole was challenged under the Administrative Decisions (Judicial Review) Act. It does not seem to have been argued that the decision was not of an administrative character, as required for review under that Act; it must have been assumed at least, for the court quashed the decision as the board had failed to afford the applicant natural justice, a ground for challenge provided for in the Act.
195. Similarly, in most States and Territories, challenges to decisions of parole boards have been dealt with under judicial review legislation or the common law as administrative decisions though without the question being always directly argued. See Baba v Parole Board of New South Wales (1986) 5 NSWLR 338 at 341-2; R v Chairman of Parole Board; Ex parte Patterson [1986] NTSC 49; (1986) 43 NTR 13 at 19-20; Rechichi v Parole Board of Western Australia [2001] WASC 363 at [2]; Kruck v Queensland Regional Parole Board [2008] QCA 399; [2009] 1 Qd R 463 at 469; [4], 472; [18]; Oates v Parole Board [2013] TASSC 10 at [11]- [13]; Yoxon v Secretary to the Department of Justice [2015] VSC 124; 50 VR 5 at 21; [61].
196. The position in the United States of America appears to be quite different where it has been held that, when deciding to grant, deny or revoke parole, a parole board is exercising a judicial function: Scotto v Almenas [1998] USCA2 179; 143 F (3d) 105 (1998) and Montero v Travis, Commissioner, Graber, Commissioner [1999] USCA2 146; 171 F (3d) 757 (1999).
197. I am satisfied that the functions of the Board in respect of parole are administrative functions as part of the Executive's role of supervising a sentence imposed judicially by a court.
198. Finally, the Board has a function in relation to the grant of release of a prisoner on licence prior to the expiry of a sentence which is, as noted in Flynn v The King, quintessentially a function of the Executive. The Board's function is one of recommendation under s 249 of the Sentence Administration Act and it is the ACT Executive which grants such a licence (s 295). The Board, however, also has a supervisory role of those offenders released on licence, similar to that which it has in respect of a periodic detention order and a parole order (s 306), including powers also similar to those it has in following inquiries reviewing those orders (s 308). Amongst its powers is the power to cancel a licence (s 308(1)(c)). Such a power has been held not to be the exercise of a judicial power or even such a similar power as to attract judicial immunity from suit: X v South Australia (No 3) at 222-3; [155]-[159].
199. The characteristics of the Board which, in contradistinction to those listed by the Territory as noted above (at [168]), seem to me to support a finding that the Board is not a court or to be taken to be a court, are set out below. I have, where relevant, identified the appropriate provision of the Sentence Administration Act in bracket in each item in the list. The matters are:
(1) As noted above (at [185]-[197]), the Board does not exercise judicial power or functions. While that may not be a matter definitive of the issue, it is by no means insignificant. I am aware that acts performed by judges are not all judicial and many are ministerial: Commissioner of Police v Reid (1989) 16 NSWLR 453 at 461. There are, of course, limits on the non-judicial powers that can be granted to judges and the way they can be granted, especially those judges subject to the constraints of Chapter III of the Constitution: Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 at 364-5.
(2) The appointment and tenure of members of the Board is significantly less protected than that of a judge or magistrate. Judges and magistrates are appointed by the ACT Executive (s 4 of the Supreme Court Act 1933 (ACT), s 7 of the Magistrates Court Act 1930 (ACT)) whereas members of the Board are appointed by the Minister (s 174 of the Sentence Administration Act). Termination of appointment of judges and magistrates requires inquiry by a judicial commission and a determination of the Legislative Assembly (s 48D of the Australian Capital Territory (Self-Government) Act 1988 (Cth)) whereas the appointment of a member of the Board may be terminated by the Minister, certainly on specific grounds, but those are broader than those applicable to a judge or a magistrate (s 178 of the Sentence Administration Act). A judge or magistrate must take an oath or affirmation of office before exercising any function (s 19 of the Supreme Court Act, s 10P of the Magistrate Courts Act); there is no such requirement for members of the Board.
(3) While the Chair and Deputy Chair of the Board must be legally qualified (s 174(2)), that is not required of other members. This is particularly relevant where a division of the Board, which is the unit for hearing an inquiry (s 181), may be made up of one legally qualified member and two non-legally qualified members (s 182). As each member has one vote (s 186(1)), the decision of the division (which is a decision of the Board (s 181(2))) may thus be made by the two non-legally qualified members. Curiously, for a division constituted by three members, the presiding member (who must be a legally qualified member (s 184)) has a casting vote in the event of an equality of votes, though how there could be such an equality is difficult to understand, unless one member declines to vote, though I am not sure that this is possible.
(4) The term of appointment for Board members is no longer than three years: s 176 of the Sentence Administration Act. Further, as a note to the section records, a retiring member is eligible to be re-appointed: s 208 and the Dictionary Pt 1, definition of "appoint", in the Legislation Act 2001 (ACT). While the temporary appointment of judges is acceptable, as the High Court decided in Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45, and, indeed, acting (or temporary) judges may be appointed to this Court, as the High Court also decided in Re The Governor, Goulburn Correctional Centre; Ex parte Eastman [1999] HCA 44; 200 CLR 322, there are problems about judicial independence raised by such re-appointment, as the Constitutional Court of South Africa discussed in Justice Alliance of South Africa v President of the Republic of South Africa [2011] ZACC 23; [2011] 5 SA 388.
(5) There are relevant differences, too, in the provisions for remuneration of the members of the Board and judicial officers. The conditions of appointment are, under s 175 of the Sentence Administration Act, as agreed between the member and the Minister, which, though unlikely, may vary from member to member. The remuneration would be set by this agreement which could be varied, including reduced, at any time by agreement or its terms, subject to any determination of the Remuneration Tribunal established under the Remuneration Tribunal Act 1975 (ACT); which may also reduce remuneration. That Tribunal does not determine the remuneration, allowances and other entitlements of members of the Board unless the Chief Minister notifies it to do so: s 10 of the Remuneration Tribunal Act. The remuneration of judges is protected from diminution under s 9(3) of the Federal Court of Australia Act 1976 (Cth), made applicable by s 37U(2) of the Supreme Court Act. While the position of magistrates is different, the common law as applied to the relevant legislation gives their Honours a greater protection than is available to members of the Board: North Australian Aboriginal Legal Aid Services Inc v Bradley.
(6) Under s 179 of the Sentence Administration Act, members of the Board are expressly afforded protection from liability when properly and not recklessly exercising a function under the Act. That this was seen to be necessary is some indication that judicial immunity was not accepted as attaching to the office of a member in the way that would attach to, for example, a quasi-judicial body exercising judicial functions: Dawkins v Lord Rokeby (1875) LR 7 HL 744; O'Connor v Waldron [1935] AC 76; Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204 at 212; X v South Australia at 220-1; [150]. I appreciate the argument that the inclusion of such a provision may be explained by a perceived need to "put the matter beyond doubt" (Tampion v Anderson [1973] VicRp 32; [1973] VR 321 at 329) and it should not be assumed that the immunity did not already apply. That argument is not irrelevant, but its force is much diluted by two facts: the provision applies also to the Board's secretary and it is much less comprehensive than judicial immunity.
(7) Unlike tribunals such as the NSW Equal Opportunity Tribunal or the SA Workers Compensation Tribunal, the Board is not expressly given power to decide questions of law as well as questions of fact. In this sense, it is relevant that the presiding legally qualified member is not given exclusive power to decide questions of law, as for example, appears in s 20(3) of the Commercial Tribunal Act 1984 (NSW), as well as other such legislation. See Custom Credit Corporation Ltd v Commercial Tribunal of New South Wales (1993) 32 NSWLR 489.
(8) The procedures of the Board are dissimilar in relevant respects to those of a court. In particular, the Sentence Administration Act provides that:
(1) the task of the Board is to conduct an inquiry (s 195(2));
(2) the Board may, but is not required to, hold a hearing for such an inquiry (s 195(4)); indeed, it is encouraged not to hold a hearing if practicable (s 195(5));
(3) any hearing conducted by the Board is not to be held in public (s 196(3));
(4) the Board is not bound by the rules of evidence (s 196(1));
(5) the Board can require reports to be prepared without, it would appear, the author being required to give oral evidence before it (s 198);
(6) there appears to be no express right of cross-examination (s 209), though the Board can require a witness to be sworn and answer questions (s 208(3)) and disallow a question put to a person (s 208(4)).
(7) There is no right of appeal from decisions of the Board so that, in that sense, it is not part of a hierarchy in the administration of justice.
200. In my view, all these matter together permit me to find that the Board is not sufficiently like a court in its establishment, jurisdiction or operation that the effect of jurisdictional error on its decisions should be that which is accorded to an inferior court rather than that accorded to an administrative tribunal.
201. As a result, I consider that, unless there is some other basis for the validity of the Board's decision until set aside, the setting aside of the Board's decision for a breach of the requirements of natural justice rendered the decision void ab initio; that is, the finding meant that the decision had no power or effect at all.
Was there any other basis for finding the Board's decision valid until set aside?
202. I return to the reservation expressed in Jadwan v Secretary; Department of Health and Aged Care. This decision has been regarded as recognising that jurisdictionally flawed decisions cannot necessarily be held or assumed never to have an effective existence in the eyes of the law: Mark Aronson, Matthew Grove and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co, 6th ed, 2017) at 738; [10.90], 740; [10.110].
203. In Jadwan v Secretary, Department of Health and Aged Care, reference was made to what McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 388-9, as follows:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is [sic] depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.
204. The proceedings by which Mr Lewis was released were proceedings for an order in the nature of habeas corpus: r 3503 of the Court Procedures Rules. The Territory had the onus of showing that the detention was lawful and the finding in Lewis (No 1) that the decision of the Board had not resulted in the finding that Mr Lewis could not be detained because there was no lawful authority to detain him, the decision of the Board having been found to be fundamentally flawed.
205. As a result, the occasion did not arise to make an order, for example, under s 17(1)(a) of the Administrative Decisions (Judicial Review) Act, that the invalidity of the Board's decision take effect on a date that would effectively validate the prior period of imprisonment. I made no finding that such an order could or should be made. Indeed, I probably could not have made such a decision. Mr Tierney's reference to r 3560 of the Court Procedures Rules for the power to suspend or stay an order is only available for orders in the nature of certiorari or prohibition, not habeas corpus.
206. In this case, in any event, there are good reasons to suppose that the setting aside of such a decision would render the decision void ab initio.
207. In the first place, the requirements of natural justice in the case of Board hearings seem to me to fall into the category of an essential preliminary requirement for the exercise of the power so that failure to comply should result in the invalidity of the decision of the Board reached in breach of the requirement.
208. I make this finding for the following reasons. The Board decided to hold a hearing, a decision with which I respectfully agree. Under s 195 of the Sentence Administration Act, it only holds a hearing, as far as practicable, where it "believes on reasonable grounds, that natural justice would not be satisfied if the inquiry were completed without a hearing". Thus, the Board had already decided that natural justice was required.
209. Further, even in conducting an inquiry, s 196(1) of the Sentence Administration Act requires, despite the non-application of the rules of evidence, that the rules of natural justice be observed.
210. Further, s 206 of the Sentence Administration Act empowers a judicial member of the Board, where he or she considers that a person will not appear at a hearing, to issue a warrant for the arrest of that person.
211. I accept that, as I found in Lewis (No 1) at 147; [172], that Mr Lewis was not necessarily required to attend the meeting, but I found at 152-3; [204]-[206], that the Board could not be satisfied that Mr Lewis had made a decision not to be present at the hearing having had a proper opportunity to be aware of the hearing.
212. Nevertheless, I consider that the requirement for affording Mr Lewis the opportunity to be heard is a fundamental obligation, the breach of which meant that the Board's decision was invalid.
213. The second reason is that the liberty of the individual is an important value that the law protects. Even where there is no fault in the person or agency responsible for imprisonment that is found to be unlawful, the courts have held that person or agency responsible. See Cowell v Corrective Services Commission of New South Wales at 743.
214. The high point of this approach is perhaps seen in R v Governor of Brockhill Prison; Ex parte Evans (No 2) where the applicant had been sentenced to imprisonment but was entitled to statutory remissions which the governor of the prison where she had been held was required to calculate. The governor did so on the basis of an approach decided by the Divisional Court of the High Court of Justice. That approach, however, was overruled, leaving Ms Evans having been detained for some months longer than was lawful, even though the calculation of her release date was made in accordance with the law the courts had articulated at the time.
215. The House of Lords held that she was entitled to damages. Lord Steyn pointed out at 27 that the "governor was blameless ... [t]he Home Office was blameless ... the courts had erred". The detention was, nevertheless, unlawful and Ms Evans compensated.
216. For these reasons, I am satisfied that the decision of the Board was a nullity; that is, it was void when made and not merely when I set it aside in Lewis (No 1) and that the detention of Mr Lewis resulting from it was unlawful.
217. In those circumstances, Mr Lewis was not detained in custody under any legal power and his imprisonment was not justified. He was falsely imprisoned.
218. While that disposes of the question of liability, there is a real issue as to damages.
219. On behalf of Mr Lewis, it was submitted that he was entitled to be awarded both compensatory general damages and aggravated damages. Mr Lewis accepted that there was no basis for an award exemplary damages, though it had been claimed.
220. It also appeared, at one stage, that Mr Lewis sought special damages. He gave evidence about the wages he was earning and which he did not earn while in custody. Special damages which are not too remote may be recoverable by a plaintiff in a claim for damages for false imprisonment: Childs v Lewis (1924) 40 TLR 870 at 871; McDonald v Coles Myer Ltd (T/as "K-Mart Chatswood") [1995] NSWSC 67; (1995) Aust Torts Reports 81-361 at 62,690.
221. As I noted above (at [32]), none of this was pleaded as required by r 417 of the Court Procedures Rules. Ordinarily a court will not award compensation for special damages which have not been pleaded: Ilkiw v Samuels [1963] 2 All ER 879 at 887.
222. There was some evidence in one of the affidavits made by Mr Lewis as to the economic impact on him, but it was not in accordance with the requirements for pleading a claim for special damages. It may be taken into account, however, as part of the general damages in a non-specific way.
223. An application was foreshadowed to amend the Statement of Claim to include a claim for special damages. It was opposed and ultimately was not pressed. I reject the evidence provisionally received as set out above (at [74]). I do not consider any claim for special damages further.
224. Turning then to general damages, I note, as Kelly J pointed out in Louis v Commonwealth (1987) 87 FLR 277 at 284, the assessment of general damages in a suit for false imprisonment is "very much at large".
225. The courts have, however, identified various matters for consideration when making that assessment. Of course, the precise factual circumstances of the case and the effect these have had on a plaintiff are relevant and must be taken into account: Spautz v Butterworth [1996] NSWSC 614; (1996) 41 NSWLR 1 at 12-13.
226. A primary consideration is the loss of liberty occasioned by the imprisonment. Liberty is an important value which the courts recognise. As Walsh J pointed out in Watson v Marshall [1971] HCA 33; (1971) 124 CLR 621 at 632, even a short period of deprivation of liberty is not a trivial wrong. See also McIntosh v Webster (1980) 43 FLR 112 at 123.
227. Kirby J, in Ruddock v Taylor at 650; [140] explained, in the context of the absence of a need to find fault in the defendant:
This is because the focus of this civil wrong is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant.
228. This echoes the significant place that vindication takes in the awarding of damages for defamation is explained by the High Court in Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 60-1. Because of the relevance of injury to reputation in both, there is a relationship between awards of damages in the tort of defamation and in the tort of false imprisonment. Such similarity was noted by Clarke JA in Spautz v Butterworth at 13.
229. McDonald J in Myer Stores Ltd v Soo at 633, cited with approval from Harvey McGregor and John D Mayne, McGregor on Damages (Sweet & Maxwell, 14th ed, 1980) at 922:
The principal head of damage would appear to be the injury to liberty, i.e. the losses of time considered primarily from a non-pecuniary point of view and the injury to feeling i.e. the indignity, mental suffering, disgrace and humiliation with any attendant loss of social status.
230. The relevant passage in the 16th edition, namely Harvey McGregor, McGregor on Damages (Sweet & Maxwell, 16th ed, 1997) at 1198-9; [1850], is to the same effect. The latter passage was cited with apparent approval by Gray J in Morro v Australian Capital Territory [2009] ACTSC 118; 4 ACTLR 78 at 110; [141].
231. Thus, as Lawrence LJ said in Walter v Alltools Ltd (1944) 61 TLR 39 at 40, deprivation of liberty is not the only value to be protected. His Lordship said:
[A]ny evidence which tends to aggravate or mitigate the damage to a man's reputation which flows naturally from his imprisonment must be admissible up to the moment when damages are assessed. A false imprisonment does not merely affect a man's liberty, it also affects his reputation. The damage continues until it is caused to cease by an avowal that the imprisonment was false.
232. As noted in McGregor on Damages, injury to feelings, such as the humiliation caused, may also form part of the matters that constitute the damage for which compensation is to be awarded: McIntosh v Webster at 127-8.
233. In addition, any personal injury suffered by the plaintiff, including any deleterious effect on his or her health, is a matter that may be included in the damages for which the plaintiff is to be compensated: New South Wales v Williamson [2012] HCA 57; 248 CLR 417 at 428-9; [33].
234. Mr Tierney advocated that there was a separate head of damages which he called vindicatory damages. That, in my view is, as indicated above (at [227]-[229]), already provided for in the award of damages. Such an award is itself, as the High Court pointed out in Carson v John Fairfax & Sons Ltd, the vindication for the interests which have been injured and must be substantial enough to do so.
235. Indeed, that is re-affirmed by the quotation which Murphy J in Myer Stores Ltd v Soo at 603 cited from P A Landon, Pollock on Torts (Stevens & Sons, 15th ed, 1951) at 142, namely that:
the estimate of damages may be coloured, so to speak by disapproval of the defendant's conduct (and in the opinion of the court legitimately so), though it be not a case for vindictive or exemplary damages in the proper sense.
236. Mr Tierney submitted, however, that there was a difference between compensatory damages as the authorities require to be awarded and what he called vindicatory damages. He referred to New Zealand authority where, for example, in Manga v Attorney-General [2000] 2 NZLR 65 at 81; [126], Hammond J described such matters as follows:
Cases based upon violations of the Bill of Rights are about the vindication of statutory policies which are not 'just' private: they have overarching, public dimensions.
237. This does not seem to me to imply that appropriate private law remedies do not vindicate private rights; indeed, the authorities to which I have referred above (at [227]-[229]), are to the contrary, at least so far as Australian law is concerned.
238. Further, it appears that, even in New Zealand, the term "vindicatory damages" is sometimes used for ordinary general damages. See, for example, P v Attorney-General [2010] NZHC 959 at [59]- [67]. The whole area of damages in New Zealand is complicated because of the change of law in 1992 which barred actions where compensation was sought for personal injuries. Another form of damages might meet that injury without breaching the bar.
239. There is no doubt that the term "vindicatory damages" is a term that has been used in various authorities. See, for example, R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245 at 318; [227]. I will address that further below.
240. In any event, it seems to me that what Mr Tierney was really seeking was what was called in Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667 at 677, 692 a "public law remedy" in addition to the award of damages for the tort of false imprisonment and, when a matter of damages, "public law damages", though those would be generally, if not always, vindicatory. See Taunoa v Attorney-General [2007] NZSC 70; [2008] 1 NZLR 429 at 521; [250], citing the Privy Council decision of Merson v Cartwright [2005] UKPC 38. It is interesting that the Supreme Court of New Zealand dealt with the matter under the heading of "Public law damages elsewhere": Taunoa v Attorney-General at 518; [243].
241. As it is a central case in this matter and will be referred to a number of times, I shall refer to Simpson v Attorney-General (Baigent's Case), as it is referred to in many New Zealand cases and commentary as Baigent's Case.
242. As to the use of the term, "public law damages", in New Zealand but more recently, see Attorney-General v Chapman [2011] NZSC 110; [2012] 1 NZLR 462. It seems to me that the term "public law damages" is preferable because it distinguishes from those common law damages that include an element of vindication also and, further, make it clear that such damages are part of the range of remedies, not merely damages, that are included as public law remedies for a breach of a human right. See Baigent's Case at 703; Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260 at 275.
243. The quantification of such damages is not straight forward, especially where there are parallel tortious causes of action, where there may be an overlap, though not always: Taunoa v Attorney-General at 481; [108].
244. Despite claiming that there was no entitlement to such public law damages, the Territory did comment on the quantification of such public law damages for false imprisonment, submitting that some assistance could be gained from cases in the federal area of rights vindication, namely discrimination. Thus, in a matter under the Sex Discrimination Act 1984 (Cth), Hall v A & A Sheehan Pty Ltd [1989] FCA 72; (1989) 20 FCR 217 at 256, Wilcox J adopted what had been said in Alexander v Home Office [1988] 2 All ER 118 at 122 by May LJ as follows:
For the injury to feelings however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve as do nominal awards.
245. Earlier in the same case, Lockhart J had, at 238, referred with apparent approval to the same passage. His Honour later said at 242 that it was important not to assess the effect of the unlawful conduct on the victim by reference to a "generalisation as to human nature or social experience" an approach endorsed by Wilcox J at 256 and French J at 281. The question to be addressed is the actual effect on the victim.
246. This approach has to some extent been followed in respect of damages for false imprisonment. As was said in New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496 at 524; [131]:
It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified.
247. I shall deal with the availability of such damages when considering the claim under s 18(7) of the Human Rights Act.
248. It is, of course, permissible, when determining general compensatory damages for false imprisonment, to have regard to the award of damages in other cases of false imprisonment. See Spautz v Butterworth at 13.
249. Care, however, needs to be taken when considering other awards of damages, for as Spigelman CJ pointed out in Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269 at 279; [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 [1997] EWCA Civ 3083; [1998] QB 498 at 515). As the term of imprisonment extends the effect upon the person falsely imprisoned does progressively diminish.
250. Although an appeal was upheld by the High Court from that decision of the New South Wales Court of Appeal, it only set aside the decision finding that Mr Taylor had been falsely imprisoned and did not address the question of damages. In any event, the principle identified by Spigelman CJ has been since accepted by intermediate courts of appeal and other courts recently. See Fernando v Commonwealth [2014] FCAFC 181; 231 FCR 251 at 272-3; [110]; New South Wales v Smith [2017] NSWCA 194 at [155]; Guo v Commonwealth [2017] FCA 1355 at [245]- [246]. Neither party submitted otherwise.
251. Finally, it is important to note that, as noted by Lawrence LJ in Walter v Alltools Ltd at 40 that:
The general principle, in my view, is that any evidence which tends to aggravate or mitigate the damage to a man's reputation which flows naturally from his imprisonment must be admissible up to the moment when damages are assessed.
252. This discloses, however, an uneasy matter, for the compensatory damages take two forms: general (or ordinary) damages and aggravated damages. That dichotomy, however, does not mean that every matter of aggravation entitles Mr Lewis to aggravated damages as opposed to providing for an increase in the amount of the ordinary damages to account for the circumstances of aggravation.
253. Thus, Clarke JA said in McDonald v Coles Myer Ltd (t/as "K-Mart Chatswood") at 62,687:
Where a plaintiff is entitled to compensatory damages for wrongful arrest or false imprisonment it is, in my opinion, proper for the Court to take into account, in assessing the ordinary compensatory damages, the whole of the conduct of the defendant to the time of verdict which may have the effect of increasing the injury to the person's feelings including the anxiety and uncertainty undergone in the litigation, the absence of apology and the reaffirmation of the truth of the matters complained of (see Cassell, at 1077). Those factors are relevant in my opinion as bearing on both the solatium and the injury to the plaintiff's reputation.
254. See the comment about the difficulty in distinguishing these matters in RP Balkin and JLR Davis, Law of Torts (LexisNexis Butterworths, 5th ed, 2013) at 775; [27.7].
255. In this case, the matters which Mr Lewis submitted should be taken into account in the assessment of the damages were:
(b) the shame he felt and humiliation of being arrested in the presence of his fellow workers;
(c) the method of arrest, namely him being handcuffed and body searched;
(d) the distress he felt when he heard how distraught his mother was at his arrest;
(e) his experience in custody which was upsetting and very worrying, especially not knowing what would happen about his job and his relationship with his girlfriend;
(f) his experience in prison where initial conditions were unsanitary and cramped and he saw violence between prisoners which made him frightened and distrustful;
(g) the consequences of prison, namely lack of sleep, limited access to his mother and lack of contact with his fellow workers;
(h) the economic impact including the loss of his motor vehicle, the lack of wages and the need to employ lawyers to assist him; and
(i) his anger and upset at the conduct of the Territory.
256. There were other matters pleaded but for which there was no evidence. For example, he had pleaded a diminished reputation, but no evidence was given of that. In defamation claims, a plaintiff is assumed to have a good reputation unless the contrary is proved: Carson v John Fairfax & Sons Ltd at 101. I am not satisfied that this approach applies to actions for false imprisonment and no authority was cited to me to show otherwise. While, as I have earlier indicated, there are similarities in the two causes of action, I am not satisfied that every technical approach in defamation proceedings applies in claims for damages for false imprisonment.
257. In any event, there was some evidence that was relevant to his reputation but which did not support Mr Lewis's case. Thus, his employer was aware that he may be arrested by police. It is not known whether his employer had explained that to Mr Lewis's fellow workers at any time. While there was no evidence to suggest that his fellow workers knew, they did know that, as a result of convictions by a court, he had been disqualified from driving.
258. The evidence as to reputation was unsatisfactory. This relieves me of having to decide whether, as submitted by the Territory, matters occurring subsequent to the imprisonment was relevant to his reputation.
259. As to the shock and upset at his imprisonment, there was some evidence to moderate the effect on him as claimed and for which damages might be awarded. Mr Lewis had been in custody on a number of prior occasions, though this appears to have been the first time he was in prison as a sentenced prisoner. Indeed, he had served a number of periods of periodic detention which was fully custodial.
260. In cross-examination of Mr Lewis, it was shown that his initial experience in being arrested and in prison was not as upsetting as he had suggested. I accept that, when inducted into prison, he accurately described his mood as "not too bad".
261. This was not the experience of a person who had never experienced arrest and custody before. Further, he was expressly aware that he was likely to be arrested at some stage because of his failure to complete the periodic detention that he had been ordered to serve.
262. As to the circumstances of his arrest, part of that was a consequence of his own actions. His evidence was that he had deliberately changed his residence to avoid the police and, when they arrived, he had tried to avoid arrest by fleeing to his bedroom and hiding under the bed. In the light of this, it is unsurprising that police may have assessed him as a flight risk and handcuffed him. His work colleagues must have seen him leave when the police approached.
263. In any event, the method of arrest needs, as with the execution of a search warrant, to be assessed with a recognition of practical reality: Troubadour Pty Ltd v Commonwealth (1992) 110 FLR 123 at 131.
264. During his time in custody, Mr Lewis was not aware until he obtained legal advice that there could be a basis for a finding that his imprisonment was unlawful. He certainly was aware at the time of his arrest that he had not only breached his periodic detention order but that serious consequences, including imprisonment, was a possibility.
265. Despite these matters, the circumstances of Mr Lewis's imprisonment would have justified a reasonably significant aware of damages.
266. Mr Lewis also claimed aggravated damages. The particular issue that were said to have justified aggravated damages was the conduct of the Territory since the false imprisonment. This was said to include:
(a) the failure of the Territory to apologise to Mr Lewis for his false imprisonment;
(b) the response of the Territory to his situation by continuing in its attempt to have him serve the balance of his imprisonment which led to his continuing uncertainty about his situation; and
(c) "[t]he conduct of the defendant in proceedings before Foster J", namely Lewis (No 2).
267. It is notable that there is no claim for any aggravation caused by the manner of the actual imprisonment (cf. New South Wales v Ibbett [2006] HCA 57; 229 CLR 638 at 646-7; [31]), such as claiming additional compensation for acts that were "high-handed, malicious, insulting or oppressive" in the commission of the tort as explained by Lord Reid in Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 at 1085.
268. To a large extent, this avoids the difficulty identified by Hodgman JA in New South Wales v Riley at 528-9; [126]-[133], that can occur in considering aggravated damages, namely to avoid double counting of those matters relevant to the assessment of ordinary general damages but which are matters of aggravation and, as such, may be regarded as requiring an award of aggravated damages.
269. In brief, aggravated damages are, in contradistinction to exemplary or punitive damages, purely compensatory: Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at 8. They are directed at compensating for particularly serious ways in which a tort is committed. In Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 129-30, Taylor J described the manner and circumstances of the commission of the wrongdoing that are such as to attract aggravated damages as the circumstance where the wrongdoing was committed in a way that was "high-handed, insolent, vindictive or malicious or had in some other way exhibited a contumelious disregard of the plaintiff's rights". It is important, however, that no part of an award for aggravated damages must represent any punishment of the defendant: Carson v John Fairfax & Sons Ltd at 65-6.
270. To this end, the courts have somewhat moderated the severity of the test as to whether aggravated damages should be awarded or not.
271. Thus, in Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 at 237-38, Toohey J, with whom Dawson and McHugh JJ agreed, explained when considering whether persistence in an unsuccessful defence justified an award of aggravated damages:
It is for the jury, properly directed in the circumstances of the case, to determine whether the defendant's conduct lacks bona fides, or is improper or unjustifiable in the sense referred to in Triggell v Pheeney. Nevertheless, persistence in a plea of justification may be relevant to the amount of compensatory damages awarded. ... But compensation for continuing harm is a component of normal compensatory damages and, in the absence of at least one of the factors mentioned in Triggell v Pheeney, does not warrant an award of aggravated damages to the plaintiff.
272. Turning then to the matters which Mr Lewis particularly submits justify an award of aggravated damages, I first consider the absence of an apology.
273. The approach that a court should take to the absence of an apology has not always been entirely clear. Thus, in Carson v John Fairfax & Sons Ltd at 66, the majority in the High Court explained:
we have difficulty in understanding how the mere absence of an apology can aggravate damages. Whereas publication of an apology may mitigate damage, thereby reducing the harm suffered by a plaintiff in a defamation case, and so reduce the damages awarded, the failure to publish an apology does not increase the plaintiff's hurt or widen the area of publication. No doubt want of apology may be a relevant factor in establishing that a defendant is motivated by a desire to injure the plaintiff but that does not mean that want of apology itself aggravates the plaintiff's injury.
274. This approach bears some similarity to the effect of a plea of not guilty in sentencing. While such a plea cannot lead to an increase in the severity of a sentence, it will often mean that the offender cannot show remorse for the offence which usually, though not necessarily, mitigates the sentence: Bedford v Earle (No 2) [2015] ACTSC 309 at [73]- [92].
275. The equivocal concern about the aggravating effect of the absence of an apology as opposed to the mitigatory effect of making an apology has, however, not persisted. Thus, intermediate courts of appeal have since Carson v John Fairfax & Sons Ltd been reasonably willing to give an aggravating effect to the absence of an apology.
276. The New South Wales Court of Appeal in Woolley v Phillips (Unreported, NSW Court of Appeal, Clarke, Sheller and Cole JJA, 26 August 1996) at 3 held that the absence of an apology, inter alia, by the defendant would have justified an award of aggravated damages had that claim not been abandoned.
277. In Clark v Ainsworth [1996] NSWSC 610; (1996) 40 NSWLR 463 at 468-9; 473-4, the Court considered what the High Court had said but held that it did not prevent the absence of an apology being considered when determining the amount of ordinary compensatory damages, which would be greater where there was no apology, but did not, of itself, justify aggravated damages.
278. This approach is not inconsistent with earlier authority where, in Walter v Alltools Ltd, Lawrence LJ considered the making or failing to make an apology was relevant to the amount of damages.
279. In McDonald v Coles Myer Ltd (t/a "K-Mart Chatswood") at 62,687, Clarke JA referred to the need to take into account, in assessing "ordinary compensatory damages", the absence of an apology. His Honour maintained that view in Spautz v Butterworth at 18.
280. Unsurprisingly, single judges have followed that approach concerning the effect on damages of the absence of an apology by the defendant.
281. In Vignoli v Sydney Harbour Casino [1999] NSWSC 1113; (2000) Aust Torts Rep 81541 at 63,510; [115], Bergin J referred to the apology in a way that clearly implied that the absence of an apology would have led to "an increase in the compensatory damages to be awarded".
282. Anderson J referred in White v South Australia [2010] SASC 95; 106 SASR 521 at 592; [437], to the relevance of the lack of an apology in the context of McDonald v Coles Myer Ltd (t/as "K-Mart Chatswood").
283. In Myer Stores Ltd v Soo at 604, Murphy J, however, referred to the absence of an apology as one factor justifying the award of aggravated damages. Neither of the other judges referred to the absence of an apology and all their Honours expressed the damages to be awarded as a single sum of $10,000, undifferentiated as between general or ordinary compensatory damages and aggravated compensatory damages.
284. So far as this decision is concerned, I note and respectfully agree with the observation in W Lovell, K Leyton and J Forder, Lovell Lupton Principles of Remedies (LexisNexis Butterworths, 5th ed, 2012) at 79; [284] that aggravated damages, though compensatory, must not only be specifically pleaded, but they should, if awarded, be separately identified as such in the judgment.
285. Thus, the position now seems to be that a failure to offer an apology may be relevant to the assessment of ordinary general damages if it shows a continuing injury to the plaintiff's feelings without justification, but will not justify an award of aggravated damages unless the failure can be shown to have been the result of conduct that lacked bona fides or was otherwise improper or unjustifiable: Spautz v Butterworth at 17-18.
286. The position is somewhat complicated, but perhaps made more favourable to Mr Lewis, by the provisions of Pt 2.3 of the Civil Law (Wrongs) Act 2002 (ACT) which prohibits an apology from being used to prove a defendant's liability for any civil liability. This removes the risk to a defendant's bona fide challenge to a claim being affected by an apology for the events involved and any harm suffered by the plaintiff. An apology along these lines was accepted as mitigatory in Vignoli v Sydney Harbour Casino at 63,504; [65], 63,510; [115]. Interestingly, given the close connection between actions for defamation and false imprisonment (as to which, see, for example, Spautz v Butterworth at 17), these provisions apply to the latter but not to the former: s 12(2)(a) of the Civil Law (Wrongs) Act.
287. The Territory defended the lack of an apology on the grounds that it was entitled to proceed with the litigation. That is, however, beside the point. The lack of an apology in these circumstances would be an aggravating factor. Although I consider the Territory to have been wrong on the basis on which it said it declined to apologise, Mr Lewis has not satisfied me that it was acting otherwise than in good faith, that it was not acting improperly or without justification. The lack of an apology would be relevant to the amount to be awarded for ordinary general compensatory damages but would not justify an award of aggravated damages.
288. The second matter is the Territory's conduct in seeking to have Mr Lewis serve the term of imprisonment which had been imposed originally in the Magistrates Court.
289. This must be distinguished from any challenge to the finding in Lewis (No 1) that the decision of the Board was unlawful because it breached the applicable principles of natural justice. The Territory did not seek to challenge that decision on appeal.
290. The decision of the Board having been set aside, the Board was able to consider the matter again. Indeed, it could make the same decision, but only after proceeding according to law, such as by giving Mr Lewis a right to be heard. See Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465 at 485. It did not do so. It is unclear why that course was not adopted; I was not provided with any evidence about that and so should not speculate. The Territory filed a cross-appeal challenging the decision in Lewis (No 1) in an appeal commenced by Mr Lewis from that decision. I do not know the fate of that appeal but it appears likely that, in the light of the decision of the Court of Appeal in Jacka v Australian Capital Territory and the decisions in Lewis (No 2) and Lewis (No 3), it has been resolved, perhaps abandoned.
291. In any event, the Territory's position, that Mr Lewis should be returned to prison, was, as Foster J held in Lewis v Australian Capital Territory (No 2) [2015] ACTSC 343 (Lewis (No 4)) at [32], unsurprising in context for, as his Honour commented:
The potential for the plaintiff to be returned to full-time imprisonment was the direct consequence of his own actions in challenging the Board's decision in the manner that he did in Lewis v Chief Executive. It had nothing to do with the Cross-Appeal brought by ACT from that decision.
292. As a result of the decision in Lewis (No 3), it is now clear that, by the date of the decision in Lewis (No 1), the sentence imposed on Mr Lewis had expired.
293. The Territory had taken a different view, based on its interpretation of the effect of s 58(4)(b) of the Sentence Administration Act. That view was shown in Lewis (No 3) to be wrong, but nothing in the reasons of decision show that it was a view that the Territory did not hold in good faith nor suggest that it was improper to do so or unjustifiable, though wrong.
294. In Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 at 514, the High Court made it clear that the bona fide conduct of a defence did not justify an increase in the damages payable, saying:
It is no doubt true that the jury cannot take into consideration as a ground for giving or increasing damages, whether exemplary or compensatory, conduct of the defendant which was not merely bona fide but was justifiable or proper. A bona-fide defence raised properly or justifiably in the circumstances known to the defendant and evidence honestly given in support of such a defence doubtless cannot be used for such a purpose. But the decision of the majority in Herald and Weekly Times Ltd v McGregor must mean that the conduct of the defence may be taken into consideration not only as evidencing malice at the time of publication or afterwards, as, for instance, in filing a plea, but also as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable.
(footnote omitted)
295. In contradistinction, in Myer Stores Ltd v Soo, the appellant persisted in alleging that Mr Soo was a thief even though the evidence for that was extremely thin and despite his denials, and when, at trial, the person making the identification of him as the thief was not even called as a witness for the appellant. This was said to justify an award of aggravated damages, though it was not clear how that was actually awarded.
296. This is not such a case. While the issue of the false imprisonment was challenged before me, the position in Lewis (No 3) was in relation to the sentence imposed in its totality. The Territory did not challenge the falsity of the imprisonment in those proceedings save as to the context where the Territory took the view that the period of imprisonment would form part of the full sentence which Mr Lewis, the Territory submitted, he was required to serve under the Magistrate's Court sentence.
297. In this context, it is relevant that Mr Lewis had sought an extension of time within which to appeal against the original sentence imposed in the Magistrates Court, though he subsequently withdrew the application: Lewis (No 2) at 108; [37]. That re-inforces my view that the Territory's approach is to be accepted as bona fide, proper and justifiable, if ultimately unsustainable and wrong.
298. Before me, the Territory argued that the period of imprisonment served by Mr Lewis in consequence of the Board's decision, the decision I set aside in Lewis (No 1), was justified by the original sentence and thus could not be considered a period of false imprisonment. Again, I have held the Territory to be wrong in that submission but I do not find any basis for finding that such an approach was not made in good faith, properly and justifiably.
299. In Warwick v Foulkes [1844] EngR 144; (1844) 12 M&W 507 at 509; [1844] EngR 144; 152 ER 1298 at 1299, the Court held that making a plea that the defendant's imprisonment was justified was evidence of malice and an aggravation of the defendant's conduct. It is to be noted that, at trial, the defendant had abandoned that plea and "exonerated the plaintiff" from the charge that had led to his imprisonment.
300. This is, however, still subject to the overriding principle that a bone fide claim, as opposed to one that lacks bona fides or is improper or unjustifiable, will not attract aggravated damages.
301. Nevertheless, the Territory's defence does aggravate the ordinary compensatory general damages in the same way that an unsuccessful plea of justification in defamation proceedings may justify some increase in the ordinary compensatory general damages: Coyne v Citizen Finance Ltd at 238-9. It does not, it seems to me, justify an award of aggravated damages.
302. In my view, the conduct of the Territory in proceeding with its view that Mr Lewis was liable to imprisonment and the period of false imprisonment was validly served, was relevant to the ordinary compensatory general damages but does not justify an award of aggravated compensatory damages.
303. This matter has obviously a good deal of overlap with the earlier matter which I have already considered.
304. This was, however, submitted by Mr Lewis to be a separate matter, submitting that "[t]he conduct of the defendant in proceedings before Foster J [i.e. Lewis (No 2)] in particular gives a basis for an award of aggravated damages".
305. Unfortunately, no precise particulars of this was given, despite the authorities requiring some precision in such allegations as explained in Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 380.
306. In the proceedings before Foster J, there had been a failed application to have the Originating Application of Mr Lewis set aside. His Honour held in Lewis (No 4) at [46], that the Territory "could never have satisfied [the] requirements" for such an application and accordingly not only dismissed the application of the Territory but ordered that it pay Mr Lewis's costs of the application on an indemnity basis: Lewis (No 4) at [49].
307. If this is the matter that is said to justify aggravated damages, then whether it does so is finely balanced, but I have come to the view that any action deserving of compensation recognition was taken in the award of indemnity costs.
308. It seems to me that this was in separate proceedings, about not whether the imprisonment of 82 days the subject of these proceedings was justified but whether, having only served about a fifth of the sentence imposed on him, Mr Lewis should serve the balance.
309. The two issues are, of course, not unconnected, but they are relevantly different and while any period served, even if unlawfully, would have to be taken into account in any further service of the sentence, whether he had to serve the balance of the sentence was a separate issue.
310. As Foster J explained in Lewis (No 4) at [32]:
The potential for the plaintiff [Mr Lewis] to be returned to full-time imprisonment was the direct consequence of his own actions in challenging the Board's decision in the matter that he did in [Lewis (No 1)].
311. The conduct of the Territory in those proceedings was said by Mr Lewis to have continued his upset and anger because the Territory "wanted to try to send [him] back to gaol". He also gave some oral evidence to this effect. While those feelings are understandable, it does not seem to me that it relevantly relates to the question of the false imprisonment, but rather to the question of whether he had to serve the balance of the sentence which had been lawfully imposed, a different question.
312. In the submissions of Mr Tierney, there was a reference to the "uncertainty and continuing actions of the defendant to seek further full-time detention of the plaintiff". If this was what was meant by this issue, I have dealt with it and it does not seem to me to warrant an award of aggravated damages.
313. There was, in the proceedings before me, and, so far as I could be aware, in those before Foster J, none of the advocacy that has sometimes led to an award of aggravated damages, such as unreasonable assertions that Mr Lewis was lying (Harbour Radio Pty Ltd v Tingle [2001] NSWCA 194 at [13]- [34]) or by cross-examining in a way that was "without support, gratuitous, and calculated to insult" (Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 at [54]).
314. There is no basis on this account for an award of aggravated damages.
315. I am not satisfied that any of the basis on which an award should be made for aggravated damages which have been identified in the submissions of Mr Lewis have been made out, I do not consider that there should be such an award, though a number of the matters would justify some relevant inclusion in the consideration of the amount of any ordinary compensatory general damages to be awarded.
316. Mr Tierney submitted that it was appropriate to award damages of a suggested amount of $120,000. The Solicitor-General submitted that, if there was a liability for damages, which I have found, they should be nominal.
317. My task is, of course, not to choose between these two contentions in the sense that I must choose one amount or the other, or even average them and award the mean of them. My task is to decide the amount of damages that, having found that Mr Lewis was falsely imprisoned, should be awarded to him.
318. The Territory relied on principles established by the UK Supreme Court in R (Lumba v Secretary of State for the Home Department, though there had been decisions of a similar kind earlier. See, for example, Budd v Anderson [1943] 1 KB 642. In the Supreme Court, the case for the appellants, who were foreign nationals, was that they had been detained by the Home Secretary pending deportation. The Home Secretary had, in making the decision, applied an unpublished policy of "blanket detention". That policy was, in fact, inconsistent with the published policy. The appellants brought judicial review proceedings in which they challenged the lawfulness of their detention and claimed damages for false imprisonment.
319. It is not necessary to consider all the issues raised in the case, though the Court was not unanimous on all of them. A majority of the Court, however, found that the unpublished policy was unlawful and that the application of that policy had therefore rendered the detention of the appellants also unlawful.
320. In that sense, there is a distinct similarity with these proceedings because it was the failure to give Mr Lewis an opportunity to be heard that rendered the decision unlawful, not dissimilar to the application of an unlawful policy, and that, therefore, rendered the imprisonment there unlawful.
321. A majority of the Court also held that, while the imprisonment resulting from the unlawful decision was itself unlawful, it was inevitable that the appellants would have been detained, even if the published policy had been applied to them.
322. Relevantly, Lord Dyson JSC held at 273; [60] that the detention of the appellants would have been inevitable, even if the published policy had been applied to them "in the light of the risk of absconding and re-offending that both posed". This is not because the appellants met some objective standard requiring their detention, but an assessment of characteristics which required the application of some judgement.
323. Indeed, Lord Dyson JSC himself later said at 294; [144]:
There must come a time when, however grave the risk of absconding and however grave the risk of serious offending, it ceases to be lawful to detain a person pending deportation.
324. Lord Dyson JSC delivered the leading judgment and his decision on damages was accepted by the dissentients, Lord Phillips of Worth Matravers JSC expressly (at 351; [335]) and Lord Brown of Eaton-Under-Heywood JSC apparently (at 360; [362]), rendering the approach to compensatory damages unanimous.
The question here is simply whether, on the hypothesis under consideration, the victims of the false imprisonment have suffered any loss which should be compensated in more than nominal damages. Exemplary damages apart, the purpose of damages is to compensate the victims of civil wrongs for the loss and damage that the wrongs have caused. If the power to detain had been exercised by the application of lawful policies ... it is inevitable that the appellants would have been detained. In short, they suffered no loss or damage as a result of the unlawful exercise of the power to detain. They should receive no more than nominal damages.
326. It may also be relevant to cite what fell from Lord Kerr of Tonaghmore JSC at 324; [253]:
On the question whether the award of nominal damages or some other measure of compensation is required in false imprisonment claims, I believe that a distinction is clearly merited between those cases where it is plain that the detainees would have been released and those where it can be shown that they would have been lawfully detained, had the correct procedures been followed. Because false imprisonment is a trespassory tort, it is said that the 'vindicatory' dimension to the assessment of compensation is important. I shall examine that claim presently but, whatever may be said about its correctness, it is surely right that the actual impact on the individual who has been falsely imprisoned (or perhaps more importantly, the impact that could have been avoided) should feature prominently in the assessment of the appropriate amount of compensation.
327. This approach has been repeated in the United Kingdom at the highest levels. See R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23; [2011] 1 WLR 1299 and Welch v Attorney-General of Antigua and Barbados [2013] UKPC 21. It has also, perhaps, unsurprisingly, been followed and applied recently. See R (Mohammed) v Secretary of State for the Home Department [2014] EWHC 1898 (Admin), and Bostridge v Oxlea NHS Foundation Trust [2015] EWCA Civ 79. It is relevant, too, that not all these decisions involve immigration matters.
328. That approach to damages has also been accepted in Australia. In Fernando v Commonwealth; at 268; [82], [84], the Full Court of the Federal Court of Australia adopted the reasoning in R (Lumba) v Secretary of State for the Home Department, that despite a submission that it and the other decisions were of limited assistance "because they were decided under different statutory regimes". Besanko and Robertson JJ held at 268; [84], however, that:
they identify a basic principle of compensatory damages that is part of the common law of Australia.
Fernando v The Commonwealth, and so R (Lumba) v Secretary of State for the Home Department, has been followed in Australia on this issue. See, recently, Wotton v State of Queensland (No 5) [2016] FCA 1457 at [1727] and Guo v Commonwealth at [229]-[236].
329. In this case, it seems to me that application of these principles do lead to a conclusion that Mr Lewis is entitled only to nominal damages.
330. Indeed, that seems to have been inevitable since Foster J in Lewis (No 2) commented at 106; [25]:
I must say that, in light of the eight absences limited laid down in s 69(3) and the terms of s 69(1) and s 69(2), I find it difficult to accept that, had he known of the inquiry, the plaintiff could have done anything to prevent the inevitable cancellation of his periodic detention.
331. Although I found in Lewis (No 1) that Mr Lewis had been denied natural justice by not being given a proper opportunity to put his case before the Board, at no time in the various proceedings involving Mr Lewis had it been made clear what Mr Lewis would have put to the Board in response to the absences which, as Foster J remarked, must inevitably have led to the cancellation of the periodic detention order made when he was sentenced.
332. In Lewis (No 1), I did not take the approach that may have been justified by what was held in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, namely that despite a breach of the rules of natural justice, a court may in its discretion refuse relief by way of judicial review because the decision-making would inevitably make the same decision.
333. Firstly, as was said in that case at 144-5, it is difficult to assess whether the denial of an opportunity to be heard would have no effect on the outcome.
334. Secondly, although not suggested to me, there may have been matters that, despite the apparent clarity of the consequences laid down in s 69 of the Sentence Administration Act, an offender may be able to address which would not lead to cancellation.
335. For example, it is not unknown for officials to make mistakes in recording the names of persons detained (and, therefore, who is or is not absent from periodic detention) as in CP v Director-General of the Community Services Directorate [2017] ACTSC 394 at [618]. An offender may have been granted bail of which ACT Corrective Services had not been informed thus justifying his or her non-attendance as explained in Lewis (No 3). An offender may have reported on time or late but not four hours (s 58(2) of the Sentence Administration Act) but the clock used by the staff may have been fast and he or she has improperly been turned away.
336. None of these matters apply here and there was no other reason suggested in any of the litigation in which Mr Lewis was involved as to what could justify the Board not cancelling the periodic detention order, save as set out below. Thus, had Mr Lewis either been given proper notice or attended, it is still inevitable that the periodic detention order would have been cancelled and he would have been committed to the custody of the Chief Executive to serve out the balance of his sentence in full-time custody.
337. At the hearing before me, however, two matters were raised by Mr Tierney on behalf of Mr Lewis, to address this issue.
338. In the first place, it was submitted that I had to be sure that the imprisonment would be an inevitability and that the statute had to require, not merely, suggest it as the one inevitable consequence.
339. I accept that the test is a reasonably high one and that a defendant must show that the imprisonment improperly imposed was, nevertheless, an inevitability. This was, after all, the test applied by Lord Dyson JSC in R (Lumba) v Secretary of State for the Home Department.
340. In this case, I am satisfied that this level of certainty has been reached. Mr Lewis had been absent for 10 occasions without approval by the time the Board met, though the Board initially only formally considered reports as to four of them. The Chief Executive had not even been approached to approve these absences, as was possible under s 55 of the Sentence Administration Act, much less actually approved them. While the Board could review a decision of the Chief Executive not to grant such approval (s 71), there was no application for or decision to review. In any event, under s 55, the Chief Executive could only give approval for two periods of periodic detention in any sixmonth period. There was no evidence of any kind to suggest why such approval should be given in this case to one such period, much less two.
341. By the time the Board finally met and cancelled the periodic detention order, it was dealing with 10 of the failures.
342. I note that, in fact, the Board decided to cancel the order based on the first four absences, that is three actual absences and one occasion where Mr Lewis was deemed to be absent because he was turned away as, contrary to his obligations, he attended while excessively affected by alcohol.
343. So far as the other six failures were concerned, the Board decided that, in the light of the cancellation of the order, it would take no further action in relation to them. It is unclear to me why the Board would do that and why it separated the various nonattendances, though I attempt to address that below. In the light of the clear words of s 69(2) of the Sentence Administration Act, it is difficult to see that the Board had that option. Of course, the order can only be cancelled once and that, in fact, effectively addressed all the absences. Perhaps that reality affected the Board's approach.
344. It was not submitted that the Board could have approached the first four absences also by taking that decision in relation to them, namely by taking no further action. There is no basis for such a submission in the light of the clear words of the statute.
345. In these circumstances, the Board had, under the Sentence Administration Act and on the facts, no discretion but to cancel the periodic detention order made when Mr Lewis was sentenced. It was, accordingly, inevitable that had it afforded to Mr Lewis natural justice, the periodic detention order would still be cancelled and he would be imprisoned.
346. The second matter involved Mr Tierney's submissions about the initiation and conduct of the Board's meetings. Some background is necessary to address this submission.
347. In the written submissions, the issue was addressed rather obliquely; it was said that there was "no evidence that a valid statutory power remained engaged on 8 July 2008 ... to mandate the detention of [Mr Lewis]". Indeed, the submission went further that "[n]ot only was the lawful detention of [Mr Lewis] not inevitable, it was not possible and could not be so, unless and until a lawful power had been properly engaged to authorise detention".
348. This was explained further in the oral submissions, but some facts are necessary to understand it.
349. Under the Sentence Administration Act, there are two provisions under which the Board is empowered to conduct an inquiry in relation to periodic detention, ss 66 and 73. The inquiry under s 66 is "to decide whether an offender has breached any of the offender's good behaviour obligations". It may conduct such an inquiry on its own initiative or at the request of the Chief Executive. The powers it may exercise are set out in s 68 and are wide-ranging, from taking no further action to cancelling the periodic detention. Section 69 then mandates cancellation if the obligation breached is the failure of the offender to perform periodic detention on two or more occasions but, it appears, only where the Chief Executive has applied to the Board for an inquiry.
350. The purpose of an inquiry under s 73 of the Sentence Administration Act is expressed to be "to review an offender's periodic detention". This appears in Div 5.4.3 of the Act which Division is headed "Periodic detention management"; a heading is part of an Act: s 126(1) of the Legislation Act. The inquiry may include consideration of whether periodic detention is suitable for the offender. The Board may conduct the inquiry on its own initiative or at the request of the Chief Executive.
351. The powers in connection with this inquiry are very similar to those connected with the inquiry under s 66 of the Sentence Administration Act save that, under s 75(1)(d), they include a power to:
(d) give the offender approval not to perform periodic detention for up to 8 detention periods if satisfied that is appropriate having regard to the offender's health or any exceptional circumstances.
352. Section 75(6) of the Sentence Administration Act, however, provides:
(6) To remove any doubt, if an inquiry under section 73 in relation to an offender is conducted in conjunction with another inquiry under this Act in relation to the offender, the board may exercise its powers under this division with any other powers of the board in relation to the other inquiry.
353. The two inquiries obviously have a good deal of overlap and I was unable to be clear about how to reconcile that: Lewis (No 1) at 129; [41].
354. When Mr Lewis initially failed to perform two periods of periodic detention required of him and thereafter on every occasion of such a failure, a document headed "Breach Report" was prepared and sent to the Board as required by s 59 of the Sentence Administration Act. In it, the officer, a delegate of the Chief Executive, making the report applied for an inquiry under s 66.
355. The first report dated 29 March 2008 and referred to Mr Lewis's failure to attend on 1 February 2008 and 28 March 2008. It recommended cancellation of the periodic detention.
356. Further reports were sent on 7 April 2008 (for the failure to attend on 4 April 2008), 17 May 2008 (16 May 2008), 24 May 2008 (23 May 2008), 7 June 2008 (6 June 2008), 14 June 2008 (13 June 2008), 21 June 2008 (20 June 2008), 31 June 2008 [but likely to be 31 May 2008 because it was received by the Board on 2 June 2008], 30 (May 2008), 4 July 2008 (27 June 2008) and 6 July 2008 (4 July 2008). The Board also received a "Board Inquiry Report" of 11 April 2008 about Mr Lewis's attending on that day affected by alcohol and being sent away. Each noted the failure to attend, most referred to the prior failures and each applied for an inquiry under s 66 of the Sentence Administration Act and recommended cancellation of the periodic detention order.
357. The Board considered the first two Reports at the meeting on 15 April 2008 and decided to hold an inquiry on 13 May 2008. On that date, it then resolved to hold a hearing on 24 June 2008. See Lewis (No 1) at 131; [55]. Mr Lewis did not attend that meeting and the Board found proved the breach of conditions by the failure to attend on 1 February, 28 March and 4 and 11 April 2008 and cancelled the periodic detention order.
358. As can be seen from the above history, the process of the Board was to receive a Report or Reports and to decide whether to hold an inquiry into the matters set out in the Report. If so, it would then set a date for it. In order to conduct the inquiry, the Board must consider under s 195 of the Sentence Administration Act whether to hold a hearing. It would do so at the inquiry; if it decided to hold a hearing, it would adjourn the inquiry so as to conduct the hearing. Whether this rather convoluted process was mandated by the Act is not a matter that I need to consider. It was, however, consistent with the Act, which was complicated and on such issues not entirely straight forward.
359. At the meeting on 24 June 2008, therefore, the Board held a hearing for the inquiry into the first two Breach Reports (reporting Mr Lewis's failure to perform periodic detention on 1 February and 29 March 2008 and on 4 April 2008) and into the "Board Inquiry Report" (reporting the deemed failure on 11 April 2008).
360. It also had periodic detention attendance records for 12 May and 23 June 2008 which would have showed Mr Lewis's failure to perform periodic detention on those two days.
361. The Minutes of the Board meeting, so far as that hearing on 24 June 2008 was concerned, record the operative part of the meeting as follows:
The board found proved the breach of conditions for the periods commencing on 1 February 2008, 28 March 2008, 4 April 2008 and 11 April 2008 and resolved to CANCEL Mr Lewis' periodic detention order.
In making this decision the board noted the submissions provided and that pursuant to s69 of the Act, it was required to cancel Mr Lewis' periodic detention order because it had found proved the allegation that he failed to perform periodic detention on two or more occasions without reason.
362. It had also earlier resolved to hold an inquiry into the Reports of 24 May, 31 June (see above at [356]) and 7 June 2008 and, instead of continuing with that inquiry, including resolving whether to hold a hearing, the Board decided that, because it had already cancelled the periodic detention order, it need not hold a hearing and so took no further action. There was, of course, then nothing to cancel. It also received the Reports of 17 May, 14 June and 21 June 2008 and, instead of resolving to hold an inquiry, decided, again, to take no further action because the periodic detention order had already been cancelled and so there was no longer an order in respect of which an inquiry could be held.
363. At the same time, for reasons that are not apparent, the Board had on 13 May 2008 also decided to hold an inquiry under s 73 of the Sentence Administration Act "into the management of Stephen Lewis [sic] periodic detention" and on 27 May 2008 to "initiate a s 73 inquiry into Stephen Lewis' non-attendance". Those inquiries appear to have been also held on 24 June 2008 and, given the earlier cancellation of the periodic detention order, there remained again nothing about which to inquire.
364. To further complicate the matter, it was later discovered that the meeting on 24 June 2008 had been invalid as it had no quorum. As I explained in Lewis (No 1) at 132; [65], [67]-[68]:
365. I note that the Minutes of the meeting of 8 July 2008 record the operative part of the meeting as follows:
The board were satisfied that notification of the hearing was sent to Mr Lewis at his last known address, and were satisfied that Mr Lewis was in breach of his periodic detention obligations in that he has not attended on two or more occasions.
The board found proved the breach of conditions and pursuant to section 68(2)(f) of the Act, resolved to CANCEL Steven Lewis PERIODIC DETENTION order.
366. Mr Tierney remarked that these minutes contained no reference to s 69 of the Sentence Administration Act which is the provision requiring cancellation of a periodic detention order; s 68(2)(f) simply gives the Board the power to make such an order.
367. The lack of reference to s 69 of the Sentence Administration Act neither affects the validity of what was done nor suggests that the cancellation is a discretionary decision which, despite s 69, the Board could have declined to make. See, for example, Williams v Chief Inspector of Factories [1924] ArgusLawRp 47; [1924] VLR 321 at 324; Lockwood v Commonwealth [1954] HCA 31; (1954) 90 CLR 177 at 184; Harris v Great Barrier Reef Marine Park Authority [1999] FCA 437; 162 ALR 651 at 655; [13]- [14]; Eastman v Director of Public Prosecutions [2003] HCA 28; 214 CLR 318 at 362; [124]; Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; 38 WAR 276 at 293; [85].
368. A challenge to the validity of the convening of the meeting on 8 July 2008 by the "email meeting" method that the Board had adopted was dismissed by me: Lewis (No 1) at 143; [141].
369. The upshot of all this is that Mr Tierney submitted that a pre-condition for the cancellation under s 69 of the Sentence Administration Act had not been met. That pre-condition, referred to above (at [349]), was that the Chief Executive had applied for an inquiry in relation to an offender, here, of course, Mr Lewis.
370. The argument, in brief, was that the Breach Reports of 29 March and 7 April 2008 and the Board Inquiry Report of 11 April 2008, applying for an inquiry, had been "completed" for the meeting of 24 June 2008. Although the reports were also before the meeting of 8 July 2008, which was the operative meeting for the purposes of cancellation, that meeting was, it was submitted by Mr Tierney, not then a response to the application by the Chief Executive, being a pre-condition for the requirement to cancel.
It would be clearly absurd to suggest that having made a request for a meeting under section 69 ... every meeting which followed that request was a meeting which responded to that request.
372. I found this difficult to comprehend. I am by no means convinced that a request (application) for the Board to cancel a periodic detention order must be dealt with at the next available meeting and if then received but not then dealt with to finality is somehow spent.
373. Mr Tierney suggested, however, that, somehow, the Board then "intervenes" at that time, because the Board then convened its own further meeting; it was, he submitted, "initiating its own action" and thus, the submission seemed to continue, the convening of the meeting of 8 July 2008 by the email meeting of 2 July 2008 meant that the Board was then conducting the inquiry on its own initiative rather than on application by the Chief Executive.
374. In support of this construction, Mr Tierney then pointed to differences in the Minutes of the meetings of 24 June 2008 and 8 July 2008, namely, in the latter there was no reference to s 69 of the Sentence Administration Act.
375. He submitted that "what prompted the resolution of the Board [of 2 July 2008] to convene a meeting [on 8 July 2008] was that recognition [i.e. that the meeting of 24 June 2008 had been invalid, called, perhaps inaccurately, ultra vires]; not the Report of Mr Guicci [the Breach Reports] and that is precisely what section 69 says".
376. I reject that submission. The convening of a meeting is not the same as conducting an inquiry on the application of the Chief Executive. While the inquiry is held at a meeting, it is clear from what happened in this case that a meeting of the Board will deal with a range of matters; indeed, it may even deal with the matters of a number of offenders, some in relation to parole as well as periodic detention. There is no basis in the Sentence Administration Act for a meeting of the Board to be required to deal with only one matter. There is no provision either to prevent the Board from adjourning an inquiry or a hearing and dealing with it at a subsequent Board meeting.
377. It is clear that the hearing was to address the application made in the Breach Reports. This becomes even clearer when other matters recorded in the Minutes of the meeting of 8 July 2008 are set out. They are as follows:
Information considered by the board
The board considered breach reports from D/S Ray Guicci dated 29 March 2008; 7 April 2008; and 11 April 2008.
Allegations and facts
In the report dated 29 March 2008 it is alleged that Steven Lewis is in breach of his periodic detention obligations in that he failed to attend for the periods commencing 1 February 2008 and 28 March 2008.
In the report dated 7 April 2008 it is alleged that Steven Lewis is in breach of his periodic detention obligations in that he failed to attend for the period commencing 4 April 2008.
In the report dated 11 April 2008 it is alleged that Steven Lewis is in breach of his periodic detention obligations in that he failed a breath test on 11 April 2008 and was discharged on that date.
It is noted that some of the information from this hearing will be in relation to the s73 management hearing also held on this date.
379. The other aspect of this argument was that the Board, in convening the meeting of 8 July 2008 also resolved to conduct an inquiry under s 73 of the Sentence Administration Act. As noted above, such an inquiry brings broader powers under s 75 than those available to the board in a s 66 inquiry. The record in the Minutes of the Board meetings of both inquiries were kept separate.
380. The inquiry under s 73 of the Sentence Administration Act only dealt with the first four failures, that is those of 1 February, 12 March and 4 April 2008, as well as the deemed failure on 11 April 2008. Thus, it was submitted, the Board could have absolved Mr Lewis from them under the power it had to waive failures to perform up to eight periods of periodic detention.
381. Mr Tierney submitted that this meant that it was not inevitable that the periodic detention order made when Mr Lewis was sentenced would be cancelled, since the Board could have waived all the four failures to perform periodic detention that it had before it on the hearing.
382. It seem to me that there are two answers to this submission. In the first place, no rationale for the Board proceeding in this way was given. As Mr Lewis was not present, there was a fatal flaw to the proceedings as I found in Lewis (No 1), and so the Board was not presented with argument or evidence that may justify the Board taking such an approach. That may be accepted, but nothing was put to me as to what Mr Lewis could have put to the Board had he been there. It is not for me to speculate on this, but I can think of no argument that Mr Lewis could have put to the Board that would justify it in proceeding in the way submitted. None was suggested in submissions. Indeed, in none of the proceedings involving Mr Lewis was any explanation given of his failures to perform periodic detention. It seems to me to be fanciful to suppose he could have properly persuaded the Board to act in this way.
383. Secondly, however, the Board was also aware of a further six occasions when Mr Lewis had failed to perform periodic detention. While, as Mr Tierney properly pointed out, these other matters were not the subject of the hearings and inquiries that were then being conducted, they were matters before the Board in the form of actual Breach Reports. That is not quite correct as three were to be subject of an inquiry at that meeting. Thus, even had the Board proceeded in the way suggested, it would have exhausted its capacity to waive the requirement of Mr Lewis to perform periodic detention with at least still two failures of which it was aware may be proved and would have had to cancel the order as required for those two failures.
384. Taking the construction of events most favourable to Mr Lewis, it would have been possible for the Board to have taken the view that the need to assist his father was an "exceptional circumstance" that would justify it approving Mr Lewis not performing the periods (up to eight) when he was assisting his father, and I make no comment as to whether that was appropriate. This did not address the failures up to 12 May 2008 when he went to Griffith, namely four failures. Again, the Board would have had no option, even had it proceeded in this way, but to cancel the periodic detention order.
385. Accordingly, this argument does not show that the cancellation of the periodic detention order was not inevitable; it was.
386. As a result, I am satisfied that Mr Lewis, despite the false imprisonment, is only entitled to nominal damages. This applies to both any entitlement he otherwise may have had to both general compensatory damages and also to aggravated compensatory damages.
387. In the event that I am wrong, I should assess the damages that I would have awarded. I have had regard to the awards made in other cases, in particular, Morro v Australian Capital Territory, Spautz v Butterworth, Myer Stores Ltd v Soo, McDonald v Coles Myer Ltd (t/as "K-Mart Chatswood"), Vignoli v Sydney Harbour Casino, Guo v Commonwealth, Louis v Commonwealth and McIntosh v Webster.
388. Each of these, of course, has its own particular circumstances. In all the circumstances and on the evidence before me, I would have assessed the damages in the sum of $100,000. I would not award aggravated damages.
389. The award of nominal damages does not prevent an award of exemplary damages: Guo v Commonwealth. In this case, very properly, Mr Lewis abandoned any claim for exemplary damages.
390. Mr Lewis also claimed damages under the Human Rights Act. This was based on s 18(7) which provides:
Anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention.
391. It was submitted that this provision gave Mr Lewis a right to compensation that was in addition to and independent of the common law right to damages for false imprisonment.
392. Reliance was placed on Morro v Australian Capital Territory at 90; [42], where Gray J held that this provision conferred "a substantive statutory right to compensation". His Honour, however, went on at 90; [43] to say:
The fact that the legislature has provided for compensation in the specific circumstances where the right predicated by s 18(7) of the ACT Act against arbitrary arrest or detention may provide a public law remedy in one sense but it can also be treated as a coextensive remedy to that provided at common law.
393. After considering the approach in New Zealand to the difference between public law remedies and private law remedies, especially by reference to Taunoa v Attorney-General, his Honour concluded at 92; [48]:
I observe that the ACT Act does not have the same 'constitutional' significance as the NZ Act does, [sic] I consider that the fact that express provision for compensation has been made by s 18(7) of the ACT Act does not necessarily require a notion of public law vindication to be imported into the expression of a right to compensation if the existing remedy at common law would achieve that vindication.
394. His Honour commented at 92; [50], that "[t]he unlawful detention referred to [in] s 18(7) of the [Human Rights Act] can be remedied by recourse to this action [i.e. false imprisonment]".
395. His Honour then proceeded to assess damages on the common law basis without further reference to the Human Rights Act, from which it would appear to be able to be concluded that his Honour considered that common law damages were, at least in that case, adequate vindication.
396. The issue has since been addressed on two further occasions but in neither case to a final conclusion.
397. In Strano v Australian Capital Territory [2016] ACTSC 4; 11 ACTLR 134, Penfold J was asked to deal with a claim by Mr Strano for unlawful imprisonment, not in tort but only under s 18(7) of the Human Rights Act. The Territory raised the issue of whether the claim was statute-barred by the relevant provisions of the Limitation Act 1985 (ACT) as it was commenced after the end of what it said was the applicable limitation period.
398. Her Honour, however, did consider whether such a claim could be made at all and observed at 140; [21], that Gray J's conclusions in Morro v Australian Capital Territory that there was a statutory right to compensation under the Human Rights Act and that it was available to the plaintiffs were obiter dicta. Given that his Honour made no finding in the proceedings of any compensation payable to the plaintiffs under that right, her Honour's characterisation may be regarded as technically correct. See Rupert Cross, Precedent in English Law (Clarendon Press, 3rd ed, 1977) at 39-42.
399. Her Honour then expressed a doubt about the reasoning process of Gray J which led his Honour to the conclusion he expressed. Her Honour set out five reasons for such a doubt:
(1) the implication (based on the New Zealand decision in Baigent's Case) that effective remedies should be available for breaches of stated rights did not require an additional remedy;
(2) the assumption that both s 18(7) and s 23 (stating a right for compensation for wrongful conviction) of the Human Rights Act must operate in the same way did not seem to have a substantial basis, especially given the detail provided in the two sections and that there was no common law equivalent to the s 23 right to compensation;
(3) the statement that the two provisions "appear on their faces to provide remedies" is no more convincing than the alternative proposition that they "appear on their faces" to require that ACT law provide for compensation for breaches of the stated rights;
(4) his Honour's statement that a failure to "give effect to the tenor of Act 1 cl 6 of the ICCPR [i.e. International Covenant on Civil and Political Rights, 1966, 999 UNTS 171 opened for signature 16 December 1966, entered into force 28 January 1993] which is the source of the provision in s 18(7)" has no particular significance; and
(5) his Honour provided no reasons for concluding at 89; [35], that "when a party, not being a State Party to the ICCPR, legislates to give effect to such a provision, it is not merely declaratory of a right but intended to give effect to a substantive remedy where the right to which such a remedy is directed has been contravened".
400. For convenience, I will refer in these reasons to the International Covenant on Civil and Political Rights as the ICCPR.
401. Her Honour also considered at 144; [45], that the approach of Gray J to statutory interpretation was not appropriate as his Honour:
without any proper consideration of the text of s 18(7) or the legislative context of that provision, without any consideration of the extrinsic materials that are under the Legislation Act available for interpretation purposes, and without offering any explanation of his conclusion by reference to the text of s 18(7), adopted a particular interpretation of that provision and then relied on that unexplained interpretation to reject the extrinsic material as inconsistent with the text as he had already interpreted it.
402. Her Honour referred at 144; [47], to other rights mentioned in s 18 of the Human Rights Act which, her Honour, pointed out appear to have no different significance than s 18(7). Her Honour continued at 144; [49] that the conclusion of Gray J:
seem to depend on the proposition that a provision mentioning compensation must therefore have a different status and operation from a provision mentioning, for instance, a right to have the lawfulness of one's detention considered by a court. That proposition may or may not be correct, but I have heard no explanation for why it should be correct.
403. Her Honour then considered at 144; [50], that a consideration of the Human Rights Act as a whole and the statements in the extrinsic materials which Gray J had held were inconsistent with s 18(7) were, in fact, consistent with the overall structure and content of the Act.
404. For these reasons her Honour concluded that s 18(7) of the Human Rights Act did not create a statutory cause of action separate from the tort of false imprisonment. Perhaps ironically, her Honour's conclusion was itself obiter dictum.
405. An appeal to the Court of Appeal against her Honour's decision was dismissed: Strano v Australian Capital Territory [2017] ACTCA 51. The Court of Appeal expressly noted at [14], however, that it was accepted that the existence of any statutory right to compensation under the Human Rights Act could not form part of the appeal.
406. In Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352; 315 FLR 305, Mossop AsJ had to consider the issue. His Honour was considering a claim for negligence against the Territory. Mr Monaghan had been arrested for apparently breaching conditions of his bail when, in fact, the relevant conditions had been varied so that he had not, in fact, been in breach. The asserted negligence was in the failure of the Court Registry to communicate that variation to the police.
407. Mr Monaghan also claimed an entitlement to compensation under s 18(7) of the Human Rights Act but did not also make a claim for false imprisonment.
408. His Honour found at 343; [168] that the claim in negligence was made out and at 354; [213], awarded damages.
409. His Honour then turned to the claim under the Human Rights Act. It is important to note, however, that the Act had been amended on 17 March 2008 by the Human Rights Amendment Act 2008 (ACT) by the time that his Honour was considering its terms. The amendments took effect on various dates but the introduction of Pt 5A to the Act, with which his Honour was principally concerned, took effect on 1 January 2009.
410. Thus, the amending Act was passed before Morro v Australian Capital Territory had been heard (on 15-18 September and 14 October 2008) but came into effect before judgment was delivered (on 10 September 2009). Part 5A, introduced a limitation period of one year and it excluded any award of damages.
411. While Strano v Australian Capital Territory was heard in 2015 and decided in 2016, there was expressly no reliance on the new provisions of Pt 5A which had been introduced by the amending Act because the events involved in Mr Strano's claim occurred before it came into effect, Unlike in Monaghan v Australian Capital Territory (No 2) however, no reference was made to Pt 5A in Strano v Australian Capital Territory for the purposes of statutory interpretation.
412. In Monaghan v Australian Capital Territory (No 2), his Honour identified two elements of liability in Mr Monaghan's claim. I do not need to discuss them, save to say that his Honour found that neither had been made out, concluding at 358; [234] that, even if s 18(7) of the Human Rights Act did provide a freestanding cause of action, it would not provide a remedy to Mr Monaghan.
413. Nevertheless, his Honour considered whether it did provide such a remedy, noting the difference in views expressed by Gray J and Penfold J.
414. His Honour referred to provisions of Pt 5A of the Human Rights Act. In particular, his Honour addressed s 40C which, under ss 40C(2), gave a person who had been victim of a contravention by a public authority of its duty to act consistently with the rights set out in the Act a remedy. Then, ss 40C(4) and (5) provided as follows:
(4) The Supreme Court may, in a proceeding under subsection (2), grant the relief it considers appropriate except damages.
(5) This section does not affect -
(a) a right a person has (otherwise than because of this Act) to seek relief in relation to an act or decision of a public authority; or
(b) a right a person has to damages (apart from this section).
Note: See also s 18(7) and s 23.
The existence of s 40C(5)(b) and the note are consistent with the legislature having amended the Act on the assumption that s 18(7) provides a separately enforceable right to damages. That is reinforced by the terms of the Explanatory Statement for the Human Rights Amendment Bill 2007 (ACT) which provided in relation to what became s 40C(5)(b):
Paragraph 40C(5)(b) confirms that nothing in this section affects any right a person may have to damages apart from the operation of this section. The note explains that nothing in this section restricts the right to compensation that arises under section 18(7) and section 23 of the Human Rights Act 2004.
416. His Honour noted at 359; [238]-[241], however, the clear inconsistency of the notion that ss 18(7) and 23 of the Human Rights Act provided freestanding causes of action with the Explanatory Statement for the Human Rights Bill 2003 (ACT) which became the Human Rights Act and the Presentation Speech, both of which expressly stated that the Bill would not "create a new right to a new remedy" or a "new cause of action".
417. At 360-1; [244]-[253], his Honour addressed the legislative history of the Human Rights Amendment Act and the speeches made in the debates, in all of which, his Honour noted, there were express references to comments such as "damages will not be available for a breach of the Human Rights Act". His Honour then commented at 361-2; [254]:
It is notable that in the speeches there is no reference to:
(a) the note at the end of s 40C(5)(b);
(b) the possibility that there may be any capacity for the Supreme Court to make a monetary order against a public authority outside the scope of the proposed pt 5A;
(c) any change of position in relation to the Act in its unamended form to that which was expressed by the Chief Minister in his remarks when the bill that became the Human Rights Act 2004 was originally introduced (referred to above).
418. His Honour considered at 362; [256] that "[i]t is really the note which gives force to the contention that the Act, read as a whole, requires that ss 18(7) and 23 provide freestanding rights".
419. As his Honour observed at 358-9; [237], however, the note is not part of the Human Rights Act (s 127 of the Legislation Act) but is extrinsic material which it is permissible to take into account in working out the meaning of an Act (Table 142, Item 1 of the Legislation Act) along with the Presentation Speech and official reports of proceedings in the Legislative Assembly in relation to the Bill that became the Act (Table 142, Items 5 and 6 of the Legislation Act). Thus, as his Honour noted, there was an inconsistency between the admissible extrinsic material.
420. Because his Honour found that there had been no breach of a right set out in the Human Rights Act and, also that, if there had been, the damages would not have required additional damages to be awarded under s 18(7), his Honour did not proceed to make a finding as to whether there was a freestanding remedy given by s 18(7) of the Act.
421. Again, therefore, his Honour's views were strictly obiter dicta. There is, therefore, no precedent by which I would not be strictly bound, but from which I should not depart unless convinced it is wrong: Zotovic v Dobel Boat Hire Pty Ltd (1985) 62 ACTR 29 at 32.
422. Mr Lewis submitted that the conclusion of Gray J in Morro v Australian Capital Territory, reached after "a detailed analysis of the history, context and purpose of the Human Rights Act" should be accepted.
423. Further, he submitted that, given the common ancestry of the Human Rights Act and the relevant legislation in New Zealand (the New Zealand Bill of Rights Act 1990 (NZ)) and Canada (Charter of Rights and Freedoms (Can)) in the ICCPR, reference is appropriately made to the jurisprudence of those countries.
424. In particular, the New Zealand Courts had identified a need for vindication by a public law remedy including of damages when a right under the New Zealand Bill of Rights Act was infringed as distinct from any compensation for breaches which may also constitute breaches of private rights under contract or tort.
425. Thus, in Manga v Attorney-General at 80; [118]-[119], Hammond J said:
[118] In the result, what Baigent's Case did was to establish the existence of a remedial jurisdiction. Particular remedies might be the exclusion of evidence in criminal cases; monetary compensation; or mandatory remedies, such as injunctions; or declarations. But the Court of Appeal did not have to address the formulation of remedies in particular civil cases.
[119] The touchstone for a public law remedy must be that there should be effective and appropriate relief. That means that:
426. This, it was submitted, justified an award of damages for any breach of the human rights of Mr Lewis. The breach alleged was of s 18(1) and (2) of the Human Rights Act which provides that:
(1) Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained.
(2) No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.
427. It was submitted that the detention of Mr Lewis, being unlawful, because it was not supported by a lawful decision of the Board and there was no other lawful basis for it, was therefore arbitrary.
428. In Manga v Attorney-General at 71; [39]-[40], Hammond J explained
[39] The view that an illegal detention is arbitrary has been consistently upheld in the international jurisprudence on art 9(1) of the International Covenant on Civil and Political Rights 1966, against which the New Zealand Bill of Rights was developed.
[40] The essence of the position taken in the tribunals, the case law, and the juristic commentaries is that under that covenant all unlawful detentions are arbitrary; and lawful detentions may also be arbitrary, if they exhibit elements of inappropriateness, injustice, or lack of predictability or proportionality.
429. His Honour was referred to "a plethora of authority" which, he held at 71; [41], "in my view bears out the propositions just stated".
430. For Mr Lewis, it was submitted that his imprisonment was arbitrary because it was not imposed following a proper "inquiry" "at which the relevant information was considered".
431. I do not, however, have to consider this and whether the imprisonment of Mr Lewis was arbitrary, save in the sense that it was unlawful which, as Hammond J points out, is sufficient to mean that it was arbitrary, whatever the full meaning of arbitrary may be.
432. Nevertheless, I do note that, as explained by Mossop AsJ in Monaghan v Australian Capital Territory (No 2) at 358; [233], there may well be, even on the definitions as provided by Hammond J, detentions which are arbitrary but which are not unlawful and would not attract the operation of s 18(7) of the Human Rights Act.
433. Thus, I reject the contention by Mr Lewis that a breach of s 18(1) of the Human Rights Act will by itself entitle a plaintiff to compensation as stated under s 18(7). There will be arbitrary detentions which will not be unlawful as explained by Hammond J, and thus not within s 18(7). That, however, does not apply here.
434. In order to understand s 18(7) of the Human Rights Act, it is, in my view, necessary to consider first the nature and genesis of the Act itself. For these purposes, as I explained in Hakimi v Legal Aid Commission [2009] ACTSC 48; 227 FLR 462 at 473; [73], I may, and will, have regard to the Report of the ACT Charter Consultative Committee, Towards an ACT Human Rights Act (Canberra, May 2003).
435. The Consultative Committee proposed a "dialogue model" which it explained in its Report at 61; [4.5], as follows:
To create a dialogue, the judiciary should not be able to invalidate legislation but rather be able to give its opinion that a law is incompatible with the Human Rights Act. It should then be a matter for the legislature to determine whether or not to amend the legislation so that it conforms to the Human Rights Act.
436. Thus, the Consultative Committee proposed that the Supreme Court would not be able to invalidate legislation which was inconsistent with a human right but would be able to make a Declaration of Incompatibility which was, it stated at 67; [4.33], "a sufficiently strong and appropriate enforcement mechanism to underpin the dialogue approach". This mechanism was included in the Human Rights Act as s 32. This was the only real remedy in the Act as initially made.
437. Helpful discussions of the dialogue model, its operation and its effects are to be found in Peter Hogg and Alison Bushell, "The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn't Such a Bad Thing After All)" (1997) 35 Osgoode Hall Law Journal 75 and Leighton McDonald, "Rights, 'Dialogue' and Democratic Objections to Judicial Review" [2004] FedLawRw 1; (2004) 32 Federal Law Review 1. In the Commonwealth sphere, see The Hon Michael McHugh AC QC, "A Human Rights Act, the Courts and the Constitution" (Presentation given at the Australian Human Rights Commission, 5 March 2009).
438. The dialogue model was the approach that underpinned the Bill as presented. Thus, in the Presentation Speech, Hansard 18 November 2003 p 4248, the Attorney-General and Chief Minister, Mr John Stanhope MLA said:
The facility for a declaration of incompatibility is a vital component of the dialogue model this will seeks to establish. While preserving parliamentary sovereignty, the declaration will function as a signal to the government and the Assembly. It will make an important contribution to rational and coherent debate about human rights issues.
439. The Consultative Committee did consider other remedies. It addressed the issue of damages at 81; [4.78], as follows:
The Consultative Committee recommends that the ACT Human Rights Act should not encourage the court to make substantial pecuniary damages payments as the primary remedy for a contravention of human rights. Damages should only be awarded if other remedies have been considered and the court considers that those remedies are not sufficient to provide an effective remedy in relation to the human rights that have been infringed by a public authority. The Consultative Committee believes that the focus of Human Rights Act remedies should be to change behaviour and prevent future breaches. This is consistent with the dialogue model on which the legislation is based and will more effectively build a culture of respect for human rights in the ACT.
440. In discussion, the major features of the proposed legislation, the Consultative Committee at 62; [4.8], did refer to:
• Effective remedies for breach of the Human Rights Act, including the limited power of the Court to award damages
441. Unlike the process regularly and helpfully used by the Australian Law Reform Commission, Towards an ACT Human Rights Act did not include a draft of proposed and recommended legislation.
442. Ultimately, the only remedy actually provided in the Human Rights Act, when originally made, was the power of the Supreme Court to make a Declaration of Incompatibility, with no provision for damages or, indeed, any other express remedial provision. Such a Declaration was made in Re Application for Bail by Islam [2010] ACTSC 147; 4 ACTLR 235. As noted earlier (at [409]), the Act was later amended in 2008 to include Pt 5A which gave the Supreme Court power to respond to contraventions by governmental or public authorities of rights set out in the Act by granting "the relief it considers appropriate except damages": s 40C(4).
443. In debate on both the original Bill and the Amending Bill, there were many references to the absence of any right to damages in either. These have largely been set out in Monaghan v Australian Capital Territory (No 2) at 359-61; [239]-[252], and I do not need to repeat them.
444. It is, however, worth setting out what Mossop AsJ said in Monaghan v Australian Capital Territory (No 2) at 359; [238], as follows:
The indication that ss 18(7) and 23 might themselves provide freestanding causes of action was plainly inconsistent with what was said at the time of the introduction of the HR Act in 2004. The Explanatory Statement for the Human Rights Bill 2003 (ACT) (the Bill), which became the Act, provides:
The Bill does not incorporate Article 2 of the Covenant because the Bill is not intended to create a new right to a new remedy for an alleged violation of a Part 3 right.
445. The reference to "the Covenant" is to the ICCPR. In this context, it is worth setting out Article 2, as follows:
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
446. Turning then to the rights set out in the Human Rights Act, it is neither necessary nor desirable to enter into the extensive philosophical debate about what human rights are. It is helpful, however, to cite the general tenor of much of the debate as usefully summarised by the Consultative Committee at 17; [2.2], as follows:
The terms of reference require an understanding of the term 'human rights'. What does it mean to seek to protect a person's or group's human rights? Scholars have long debated this issued. Drawing on the work of the eighteenth-century philosopher Immanual Kant, who argued that individuals should be seen as ends in themselves, some regard certain rights as inherent in every person, an essential element of human dignity. By contrast, utilitarian philosophers have often argued against the notion of inherent or inalienable human rights based on human dignity. They tend to give great weight to the interests of the majority and rely on a democratically elected legislature to express those interests and to determine for itself what rights should be protected.
447. While there are significant differences between these approaches, what is clear is that the rights are those which are identifiable as human rights rather than being constructed from the particular conditions of the community.
448. That they are seen as universal, not society specific, can be seen from the content of international documents such as the Universal Declaration of Human Rights or the ICCPR.
449. This has informed the creation of the Human Rights Act which was seen not as creating the rights but recognising them. Thus, the Explanatory Statement to the Human Rights Bill 2003 at p 2 in the "Overview of Bill" states:
The main purpose of this Bill is to recognise fundamental civil and political rights in Territory law. In particular, the Bill ensures that, to the maximum extent possible, all Territory statutes and statutory instruments are interpreted in a way that respects and protects the human rights set out in Part 3 of the Bill. (Emphasis added).
and in introducing the comments on Part 3 at p 3 states
Part 3 sets out the civil and political rights recognised by the Act and provides that rights may be subject to certain limitations. (Emphasis added)
450. In Ministry of Transport v Noort at 277, Richardson J explained, in respect of the New Zealand Bill of Rights Act:
the deliberate reference to 'affirm' in the long title and in s 2 which provides 'The rights and freedoms contained in this Bill of Rights are affirmed' makes the very important point that the Act is declaratory of existing rights. It does not create new human rights. As basic human rights, the rights and freedoms referred to do not derive from the 1990 Act. In that respect it parallels the Bill of Rights Act 1689 which was declaratory of 'the true, ancient and indubitable rights and liberties of the people' (s 6). That philosophical underpinning has to be taken into account when construing and applying the Bill of Rights Act provisions.
451. While the long title of the Human Rights Act does not use the word "affirm", a matter of relevance in another context, the word it does use, "respect", has the same semantic effect as described by his Honour.
452. It is also not irrelevant that Brennan J in Kruger v Commonwealth at 46, observed that, as accepted by Dixon J in Jones v Commonwealth [1939] HCA 9; (1939) 62 CLR 339 at 362, the Constitution, which contains few, but some, rights, guarantees immunities and freedoms "reveals no intention to create a private right of action for damages for an attempt to exceed the powers it confers or to ignore the restraints that it imposes.
453. Many of the rights recognised in the Human Rights Act are rights which are already recognised in the Territory. Thus, for example, the right to a fair trial as protected by the common law prior to the enactment of ss 21 and 22 of the Human Rights Act is substantially in accord with what was recognised as the right to a fair trial in those sections: Hakimi v Legal Aid Commission (ACT) at 471-2; [57]-[60].
454. That is to say, the fair trial to which an accused is entitled is not conducted under ss 21 and 22 of the Human Rights Act but in accordance with the common law and applicable statute construed under that Act consistently with those rights and which, in the case of a fair trial, largely conforms already with the right as recognised by those sections.
455. On the other hand, the limitations of the Human Rights Act as an ordinary enactment meant that the recognition of the rights in Pt 3 did not override legislation or, without action under Pt 5A, Executive conduct or decisions. As I explained in R v AM [2010] ACTSC 149; 245 FLR 410 at 420; [58]- [59]:
456. This does not mean, however, that the recognition of the right has no function other than to require the Supreme Court to assess legislation, where requested, according to its compatibility with the rights under the Act. The requirement to construe legislation in accordance with the Act has a direct effect on the outcome of decisions made both by administrators and by courts. Examples include matters as mundane as to whether leave is granted to appeal (Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning and Land Authority [2008] ACTCA 9; 2 ACTLR 44 at 52; [29], or as significant to liberty as to whether bail should be granted (R v Kristiansen [2008] ACTSC 83; 221 FLR 127 at 130; [20]).
457. Thus, s 18(7) of the Human Rights Act is to be seen as the expression of a right that the Territory recognises should be extended to persons subject to its laws.
458. In earlier consideration of this section, there has been something of a category mistake made. Part 3 of the Human Rights Act, in which s 18(7) appears, set out rights. The provisions in it, as a matter of statutory construction, are not procedural nor are they intended to amend or change the law. They are there to state, or as Richardson J would have it, to declare, the rights which are to be respected, protected and promoted in the Territory.
459. Thus, s 18(7) of the Human Rights Act states a right that is to be respected, protected and promoted. Like the other rights set out in the Part, such as fair trial rights to which I have already referred (at [453]), it is not necessarily, indeed it is unlikely, that it is a right that is not already recognised in the legal system of the Territory.
460. This right is derived from Article 9 of the ICCPR where s 9(5) sets out the right in the following way:
461. Marc Bossuyt, Guide to the Travaux Preparatoire to the International Covenant on Civil and Political Rights (Martineus Nyhoff Publishers, 1987) at 217-9, sets out the legislative history of Article 9(5) of the ICCPR. It is clear that even in the early stages, it was accepted that "in certain countries the civil responsibility of individuals alone for malicious grossly negligent conduct was legally recognised", but that the obligation should not be so limited.
462. The Territory submitted that the Travaux Preparatoire showed that the intent was to protect the right of access to "a right of action" for compensation for unlawful arrest or detention against an individual or the State. I am not so sure that this is so clearly a conclusion that can be drawn from the materials, but I am satisfied that it required the State parties to ensure that there was such an effective right and that it was recognised that some such rights already existed in certain States.
463. The official commentary of the Human Rights Committee of the United Nations on Article 9, General Comments No 35, adopted by the Committee in October 2014 ICCPR/c/GC/35) states in relation to Paragraph 5 of Article 9 of the ICCPR states:
464. In Horvath v Australia (ICCPR/c/110/D/1885/2009) the author, Corinna Horvath, made a communication to the Human Rights Committee of the United Nations under the Optional Protocol to the ICCPR.
465. Ms Horvath made a number of complaints arising out of events where police entered her premises and which included what one member of the Committee described as "a brutal attack" on her by one of the police officers and the treatment she received was described by two other members as "a gross form of ill-treatment severe enough to involve" cruel, inhuman or degrading treatment. Ms Horvath sued the police officers and the Government for damages for false imprisonment and malicious prosecution. The damages she was awarded in the County Court but reduced on appeal as the damages award against the State of Victoria was overturned: Victoria v Horvath [2002] VSCA 177; 6 VR 326.
466. One of Ms Horvath's complaints in her communication to the Human Rights Committee was made under Article 9 Paragraph 5. The Committee held that her rights were breached because her claim had been "nullified by the impossibility to have the judgment ... adequately enforced, due to factual and legal obstacles". The Committee, however, did state:
that actions for damages in the domestic courts may provide an effective remedy in cases of alleged unlawfulness or negligence by State agents ... State authorities have the burden to enforce judgments of domestic courts which provide effective remedies to victims. In order to ensure this, State parties should use all appropriate means and organize their legal system in such a way so as to guarantee the enforcement of remedies in a manner that is consistent with their obligations under the Covenant.
467. This jurisprudence re-inforces the view that s 18(7) of the Human Rights Act sets out a right which, in this particular case, has not been breached. Mr Lewis has a remedy in the tort of false imprisonment and the procedures in this Territory make the enforcement of any judgment awarded in such a claim effective.
468. There is no reason to suppose, and none was expressed to me in submissions, that the pre-existing tort law of false imprisonment does not meet the requirement of the human right recognised or declared in s 18(7) of the Human Rights Act. In plain terms, it provides that, where a person is imprisoned, that is detained, and that there is no right to imprison that person, that is the person's detention is unlawful, the person is entitled to damages, that is compensation. That is the standard to be met by domestic law.
469. The construction of the Human Rights Act in this way, namely as setting standards by which legislation is to be judged and construed and Executive action is to be reviewed, has another important consequence.
470. If the rights set out in the Human Rights Act were to be construed as the creation of rights that constituted free-standing claims, then they could be at risk of legislative undermining. The Act is, after all, simply an act of the ACT Legislative Assembly; it has no "entrenchment" as a constitutional document such as the Charter of Rights and Freedoms or even the more limited but effective entrenchment of being a Commonwealth enactment, such as the Australian Capital Territory (Self-Government) Act.
471. Thus, if it was the making of free-standing rights that were directly enforceable in the way proposed by Mr Lewis, the rights would be at risk of implied repeal: Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 7. For example, if a subsequent enactment limited the damages payable for certain forms of false imprisonment or, indeed, prohibited them altogether, then it seems likely that this would constitute an implied repeal pro tanto (as explained by Windeyer J in Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1 at 10) and thus no longer be the standard by which that subsequent legislation could be assessed for incompatibility.
472. The structure of the Human Rights Act as standard setting is protected by this approach even though it has an active role in requiring, as far as possible, legislation to be consistently construed (consistent with its purpose) with the enumerated right, but not to repeal it, explicitly or impliedly, and to require public authorities to act in accordance with the enumerated rights, unless expressly required by a law to act otherwise. This seems to me to make this standard setting role clear and protects its value as such.
473. I am not satisfied that the words of s 40C(5) of the Human Rights Act together with the cogent argument, set out by Mossop AsJ in Monaghan v Australian Capital Territory, to which I have referred above (at [414]-[419]), as to the effect of that sub-section and the note to it, overcomes the weight of the approach I have taken to the Act and a balancing of the other, inconsistent extrinsic material.
474. I am not satisfied that s 18(7) of the Human Rights Act is intended to go further than to state the right that it expresses, namely that a person should have a right to compensation for unlawful detention. I am further satisfied that the tort of false imprisonment meets that right and amounts to such protection as that right requires. The right is simply to compensation; there is no reference express or implied to the quantum and to require additional compensation from that which a proper calculation of damages for false imprisonment provides.
475. Nevertheless, it may be that Mr Lewis was not arguing so far. His reliance on New Zealand authority, in particular, seems to take a somewhat different direction.
476. There is a stream of authority overseas which authorises the award of what are called "vindicatory damages", a not very clear term, as I suggested earlier (at [234]-[242]). That term appears to have originated in the United States. In R (Lumba) v Secretary of State for the Home Department at 316; [223], Lord Collins of Mapesbury JSC explained that:
It would seem that the expression had its origin in the United States, where it was sometimes used as a synonym for exemplary or punitive damages (e.g. Cole v Tucker, 6 Tex 266 (1851); Blair Iron & Coal Co v Lloyd, 3 WNC 103 (Pa (1874)), but at other times used to mean damages designed to vindicate a right but which were compensatory in nature (e.g. McBride v McLaughlin, 5 Watts 375 (Pa 1836); Hallmark v Stillings, 648 SW 2d 230 (Mo 1983).
477. In the UK, the term has been in common use in the Privy Council. Lord Collins of Mapesbury JSC at 316-17; [224], however, cautioned:
Any consideration of the Privy Council decisions on vindicatory damages must be prefaced by three points. First, they were concerned with alleged violations of constitutional rights. Second, the constitutions contained provision in relation to such violations for 'redress' (Trinidad and Tobago, section 14(1) (without prejudice to any other action which is lawfully available); Bahamas, article 28(1) (but not if adequate means of redress are available under any other law), or 'relief' together with 'such remedy' as the court considers appropriate (Saint Christopher & Nevis, section 96(1), (3); Saint Lucia, section 105(1), (3)). Third, although the distinction has sometimes been blurred (as perhaps in Takitota v Attorney General [2009] UKPC 11, 13), the decisions are concerned with two heads of damage, compensatory damages and vindicatory damages.
478. His Lordship noted that such awards had been controversial in many countries. His Lordship explained at 318-19; [228]-[230]:
479. If such damages are available as claimed by Mr Lewis, then they are not, in fact, damages under s 18(7) of the Human Rights Act, for the right that that sub-section gives is provided for by the tort of false imprisonment and so it has not been breached in this case. He has, therefore, no claim for a breach of the right recognised in that sub-section.
480. The rights that have been breached by his unlawful imprisonment are those under s 18(1) and (2) of the Human Rights Act. If any vindication is required, then it is for breach of those rights.
481. Despite the international jurisprudence, the closest comparison for a jurisprudential consideration of the Human Rights Act is New Zealand. There the New Zealand Bill of Rights Act is also an ordinary statute. The Human Rights Act 1998 (UK) has a detailed regime of remedies including as to damages which makes it less comparable. The Canadian Charter of Rights and Freedoms is part of Canada's Constitution. Indeed, it was to the New Zealand jurisprudence to which Mr Tierney took me.
482. It is clear that, amongst the public law remedies available in New Zealand, the courts have now accepted that vindicatory damages are available as a public law remedy which may provide vindication of the breach of the rights protected by New Zealand Bill of Rights Act.
483. Despite some similarities, the New Zealand Bill of Rights Act is different in various ways from the Human Rights Act. In particular, it makes no provision for a Declaration of Incompatibility to be made by any New Zealand court and has no equivalent to Pt 5A of the Human Rights Act. Indeed, it has no provision relating to remedies at all.
484. Since its enactment, however, the New Zealand courts have grappled with the question of remedies for the breach of the rights it affirmed. Thus, in R v Butcher [1991] NZCA 135; [1992] 2 NZLR 257 at 269, Gault J observed:
Section 23 of the New Zealand Bill of Rights Act 1990 'affirms' certain fundamental rights of persons arrested (subss (1) to (4)), detained under any enactment (subss (1) and (4)) or deprived of liberty (sub (5)). The Act does not provide remedies for denial of those rights.
I subscribe to the view that these and the other fundamental rights identified in the Act are to be recognised and assured without narrowing or technical interpretations. This will occur only if the Courts accord appropriate remedies. The legislature has chosen to leave that responsibility unconstrained.
485. The next year, Richardson J similarly said in R v Goodwin [1993] 2 NZLR 153 at 191-2:
The Bill of Rights Act does not contain any express enforcement provisions. A statement of fundamental human rights would be a hollow shell and the enactment of a Bill of Rights an elaborate charade if remedies were not available for breach. On the contrary the premise underlying the Act is that the Courts will affirmatively protect those fundamental rights and freedoms by recourse to appropriate remedies within their jurisdiction. Traditional remedies include the exclusion of evidence wrongly obtained, stay of proceedings, habeas corpus, damages for false imprisonment and judicial review of the exercise of statutory powers. For present purposes the focus is on the use in criminal proceedings of evidence obtained in breach of particular rights affirmed in the Act.
486. In Baigent's Case at 207, Gault J noted that, while not a "supreme law" as originally proposed, the New Zealand Bill of Rights Act had a "special status", especially given the reference in its title to "Bill of Rights" and the reference in the long title to the rights as "fundamental".
487. On 29 July 1994, the New Zealand Court of Appeal delivered two significant judgments: Baigent's Case and Auckland Unemployed Workers' Rights Centre Inc v AttorneyGeneral [1994] 3 NZLR 720.
488. As Cooke P said at 724 in the latter case, "[t]he two cases should be read together". They established that there was power in the New Zealand courts to give public law remedies, including damages, for breaches of the rights affirmed or declared in the New Zealand Bill of Rights Act.
489. The most important of the two decisions was Baigent's Case; indeed, Blanchard J referred to it in Taunoa v Attorney-General at 514; [231] as "the Court of Appeal's landmark decision".
490. Each of the five judges of the Court of Appeal delivered their own reasons; four for finding a right to a public law remedy; Gault J dissented on this issue. While the decision is clear, that the courts have power to grant public law remedies, including an award of damages, for breaches of rights affirmed in the New Zealand Bill of Rights Act, the reasoning of the members of the Court is not entirely uniform. The following importantly relevant matters, however, can be taken from the individual judgments:
1. All the judges agreed that the absence of an express provision in the Act enabling the courts to grant remedies was no bar to the court finding that there was such a power: Cooke P at 676, Casey J at 691, Hardie Boys J at 698, Gault J at 706-7, McKay J at 717-18.
2. The legislative history was, some judges agreed, not inconsistent with this conclusion even though a proposed remedial provision in a draft Bill had not found its way into the Act. Some suggested, that this was because the Act was no longer to be a "supreme law" but merely an ordinary statute: Cooke P at 6767, Hardie Boys J at 699. It is not clear how that change justified the removal of a remedial provision, especially in the light of international jurisprudence. Gault J considered that the legislative history pointed away from a finding that the absence of remedial provisions did not tell against the Court finding a power to grant remedies.
3. The words in the long title of the Act, namely to "affirm, protect and promote human rights" was a strong indicator that the Court should find that it was intended that the rights should be enforced: Gault J at 706; McKay J at 717-18. Indeed, Cooke P at 676 further pointed out that "protect" and "promote" were words as strong as "vindicate" and, further, that this had influenced the Irish courts to grant a compensation remedy.
4. Extrinsic materials, including the statement in the Explanatory Note to the Bill that "the Courts might enforce those rights in different ways in different contexts" and a similar statement by the Prime Minister in moving the Bill, provided cogent support for the finding of a remedial power: Cooke P at 677.
5. That other jurisdictions had found compensation a standard remedy showed that there was no reason why New Zealand should not also: Cooke P at 676, McKay J at 718. A requirement in such legislation is that legislation be construed to comply with the rights in the Act would not be adequate to vindicate breaches of those rights: Casey J at 691. Some judges pointed to strong international authority which showed that redress for breaches of affirmed rights had become a field of its own: Cooke P at 677; Hardie Boys J at 700-2.
6. Indeed, some judges felt that the Court would be failing in its duty were it not to give effective remedies to a person whose legislatively affirmed rights had been infringed: Cooke P at 676; Hardie Boys J at 702.
7. That most international jurisdictions which have a public law remedy that was available to be granted by the courts were unlike New Zealand, for they were jurisdictions where the rights were found in a constitutional document. This was, however, regarded by some judges as not a valid distinction: Cooke P at 677; Casey J at 692.
8. The fact that the New Zealand Human Rights Act was based on the ICCPR was seen as significant. Indeed, the long title included that "it was an Act to affirm New Zealand's commitment to the International Covenant on Civil and Political Rights". Some judges considered that it had to be construed consistently with the ICCPR, especially the provision of Article 2(3) which New Zealand, by its adoption was bound to respect: Hardie Boys J at 699; McKay J at 718. Thus, it was seen by Casey J at 691 to be inconsistent for the New Zealand Government to have acceded to the First Optional Protocol to the Covenant which gave persons aggrieved by breaches of these rights access to complain to the UN Human Rights Committee, but to leave them with no domestic remedy.
9. The doctrine, "ubi jus ibi remedium", as explained by Holt CJ in Ashby v White [1790] EngR 55; (1703) 2 Ld Raym 938; 92 ER 126 at 135; 953-4, requires that where a person has a right, he or she must of necessity have a means to vindicate and maintain it and so justifies the Court granting remedies for breaches as the affirmed rights: McKay J at 717. Some judges applied this doctrine more restrictively, arguing that where the existing law provides an effective remedy that is all that is needed, but, where not, another remedy must be found: Gault J at 708-13; McKay J at 718. Casey J at 691, held that it was relevant that it would be difficult to adapt traditional remedies to breaches of all the rights affirmed by the Act. Similarly, Cooke P at 677, noted that limitations on remedies, such as in the Crown Proceedings Act 1950 (NZ), could leave victims of breaches of rights without a traditional remedy.
10. The majority judges were influenced by the decision of the Privy Council in Maharajah v Attorney General of Trinidad and Tobago (No 2) [1978] UKPC 3; [1979] AC 385. In particular, it was noted that Lord Diplock, delivering the judgment of the majority at 399, had said (quoted by Cooke P) at 677:
... no change is involved in the rule that a judge cannot be made personally liable for what he has done when acting or purporting to act in a judicial capacity. The claim for redress under section 6(1) for what has been done by a judge is a claim against the state for what has been done in the exercise of the judicial power of the state. This is not vicarious liability; it is a liability of the state itself. It is not a liability in tort at all; it is a liability in the public law of the state, not of the judge himself, which has been newly created by section 6(1) and (2) of the Constitution.
11. A matter referred to by a number of the judges in Baigent's Case was the problem for victims of governmental breaches of human rights in the immunity granted the Crown in certain circumstances from action especially in tort. Thus, Cooke P at 677, Hardie Boys J at 697-8 and McKay J at 718, in Baigent's Case pointed out that this would leave such victims without a remedy. In Auckland Unemployed Worker's Rights Centre Inc v Attorney General at 729, Hardie Boys J dealt with this directly in response to the trial judge's finding that there could be no redress against the Crown, saying that "[t]he Bill of Rights requires that there be a remedy". To read down the immunities of the Crown, his Honour found, would be unsatisfactory and the proper approach, which his Honour considered to be mandated, was to give a remedy based on the New Zealand Bill of Rights Act.
491. This is clearly a strong case made by the NZ Court of Appeal for finding that it and other New Zealand courts had the power to grant remedies for breaches of rights set out in the New Zealand Bill of Rights Act. Baigent's Case has, as would be expected from a decision of a Court of Appeal, been followed since then. The jurisprudence has also developed since then.
492. The position is helpfully summarised in Attorney-General v Chapman at 475; [4], where Elias CJ, although in dissent as to the outcome, explained:
The direct public law remedy does not substitute the State for the public officials who would, in the absence of some form of immunity, otherwise be responsible in tort. It is distinct from private law remedies, and is available for denial of rights rather than error in result or procedure which can be adequately corrected within the process in which it occurs. State remedial responsibility is appropriate for such denial of rights and is consistent with the obligations of the State under the International Covenant on Civil and Political Rights, which the New Zealand Bill of Rights Act was enacted to fulfil in domestic law. Article 2(3) of the Covenant obliges the States party to it to provide an 'effective remedy' in domestic law for breaches of rights 'notwithstanding that the violation has been committed by persons acting in an official capacity'.
(footnotes omitted)
493. Despite this, the question must be asked as to whether the reasoning and basis for the decision in Baigent's Case is applicable to the Human Rights Act. In undertaking the task of answering that question, it is important to bear in mind the caution expressed by Lord Bingham of Cornhill in Sheldrake v Director of Public Prosecutions [2004] UKHL 43; [2005] 1 AC 264 at 305; [33], and which French CJ in Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 at 38; [19] noted that it was appropriate to heed, namely that caution must be exercised "in considering different enactments decided under different constitutional arrangements". I will do so.
494. There are some differences between the two Acts that need to be noted. There is, in the New Zealand Bill of Rights Act, no equivalent provisions to ss 18(7) and 23 of the Human Rights Act. It also has no provisions for remedies at all such as the provision for a Declaration of Incompatibility or the equivalent to the remedial provisions in Pt 5A of the Human Rights Act.
495. Secondly, the New Zealand Bill of Rights Act has a particularly special place in the constitution arrangements of New Zealand.
496. Thus, in R v Wharemu [2000] NZCA 380; [2001] 1 NZLR 655 at 656; [1], Thomas J described it as "a critical document in the constitutional framework of this country". Of course, New Zealand has no written constitution and the New Zealand Bill of Rights Act is neither a constitution nor entrenched.
497. In Attorney-General v Chapman at 481; [25], Elias CJ, with whom Anderson J agreed, referred to it as "constitutional legislation which is intended to permeate New Zealand law" (footnotes omitted).
498. There have been moderating views. In the important decision of Minister of Transport v Noort, a number of members of the Court remarked that New Zealand had no constitution and the New Zealand Bill of Rights Act was not such nor was it entrenched. As Richardson J said at 277 of these characteristics:
It is not supreme law in that sense. It does not override all other legislation. Nevertheless in interpreting and applying the Act it is important to consider the nature and subject-matter and special character of the legislation.
499. Similarly, in the same case, Hardie Boys J said at 286:
While not a constitutional document, it is nonetheless an affirmation and a means of promoting principles which are fundamental to every constitutional instrument. Each of its provisions should be construed and applied with that in mind.
The fundamental rights affirmed in the Bill of Rights Act are to be given full effect and are not to be narrowly construed. Its provisions are to be construed to ensure its objects of protecting and promoting human rights and fundamental freedoms. It is a statute, not an entrenched constitutional document, but it is couched in broad terms requiring interpretation appropriate to those objects. Its terms, in large measure, have been drawn from the Canadian Charter of Rights and Freedoms so that Canadian decisions can be expected to assist in interpretation so long as there is borne in mind the different status enjoyed by the Charter.
501. Nevertheless, the theme of the importance and centrality of the New Zealand Bill of Rights Act was re-affirmed even in Baigent's Case where Cooke P noted at 676 that "the rights and freedoms ... having been affirmed as part of the fabric of New Zealand law". Casey J at 690 agreed with the submission of the appellant's counsel's description of the Act's "importance and special character".
502. This is not the position of the Human Rights Act. The Territory has a written constitution, the Australian Capital Territory (Self-Government) Act, though it cannot be amended by the legislature or people of the Territory. The Human Rights Act is not part of it and while, of course, a significant enactment, cannot be said to have the kind of special status that the New Zealand Bill of Rights Act has in New Zealand as described by the judges in that jurisdiction. In this, I do not intend to diminish or minimise its importance, but that arises more significantly from its content and operation than its status.
503. This difference may also be seen in the long title to the Human Rights Act which does not use the word "affirm", which appears in the long title to the New Zealand Bill of Rights Act and expressly in s 2. This is a word that features prominently and frequently in the reasoning of New Zealand's judges in human rights matters, not only in Baigent's Case but in other relevant New Zealand decisions.
504. The word does not appear in the Human Rights Act. The long title uses the word "respect" which, while not dissimilar to "affirm", is not the same and is somewhat weaker and there is no equivalent to s 2 of the New Zealand Bill of Rights Act which statutorily enacts the affirming of the rights. Both Acts do use the words, "protect and promote" in the long title, on which Cooke P relied in Baigent's Case to show the need for proper vindication following breaches, leading to the making of a public law remedy.
505. By itself, this difference would not justify a different approach by this Court, but it is a factor which, in my view, can be taken into account.
506. More significant is the absence of the commitment in the long title of the Human Rights Act of the affirmation in the New Zealand Bill of Rights Act of "New Zealand's Commitment to the International Covenant on Civil and Political Rights".
507. This is significant for two reasons. In the first place, it references the ICCPR and that includes Article 2 which is set out above (at [445]). In particular, this Article includes an obligation to provide effective remedies and this has been relied on by some judges as a basis for the making of a public law remedy for breaches of the Act. See, for example, what Hardie Boys J said in Baigent's Case at 699.
508. This is also significant because New Zealand is a State Party to the ICCPR and this brings obligations on it when, as in part, at least, the making of the New Zealand Bill of Rights Act enacts the ICCPR into domestic law.
509. This is in contrast to the Human Rights Act. It does not have such an affirmation in the long title. The Territory is, of course, not a State Party to the ICCPR and, even though the rights set out in it are "primarily" drawn from the Covenant (Explanatory Statement for the Human Rights Bill 2003 (ACT) at p 3), it is not bound when making such legislation to give full effect to the whole of the ICCPR.
510. Indeed, this is further relevant because the Explanatory Statement, at p 4, expressly provided:
The Bill does not incorporate Article 2 of the Covenant because the Bill is not intended to create a new right to a new remedy for an alleged violation of a Part 3 right.
511. This is significant contraindication to the requirement seen in the New Zealand law to the making of a public law remedy for enforcement of the rights in the Human Rights Act.
512. Further, the structure of the Human Rights Act itself is relevant. While the New Zealand courts found that the absence of a remedial provision (even notwithstanding that it had been proposed) was no bar to the courts making a public law remedy, the Human Rights Act did provide remedies.
513. Initially, it provided only a Declaration of Incompatibility, a remedy which was not to be found in the New Zealand Bill of Rights Act. The inclusion of a form of remedy and the absence of others is a relevant consideration in construing the statute: R v Zuber [2010] ACTSC 107; 175 ACTR 1 at 12; [76]- [79].
514. It is accepted that the New Zealand Bill of Rights Act had similar provisions to the Human Rights Act relating to the requirement to interpret acts consistently with human rights (s 6, cf s 30 of the Human Rights Act) and for the Attorney-General to provide a statement as to the inconsistency with human rights of any Bill introduced to the legislature (s 7, cf s 37 of the Human Rights Act). As to the latter requirement, the New Zealand Attorney-General has only to bring to the attention of the legislature "any provision ... that appears to be inconsistent" whereas the Territory Attorney-General must state whether in the Attorney's opinion the Bill "is consistent with human rights" as well as identifying any inconsistencies.
515. Most significantly, the Human Rights Act was amended after a review of its provisions by, inter alia, the introduction of Pt 5A. This imposed specific obligations on public authorities, as defined, to act consistently with human rights. This rather re-inforces the view that, with the interpretative provision, compatibility statement on Bills and the Declaration of Incompatibility, the Act was originally directed towards legislation.
516. The 2008 amendments introduced s 40B into the Human Rights Act which required, with limited statutory exception, public authorities to act in a way compatible with human rights and s 40C which made provision for victims of breaches of the human rights enumerated in the Act to have a remedy, but not damages. This is consistent with the absence of such remedies in the unamended Act. While somewhat controversial, there is some support, to be applied cautiously, in the approach of relying in this way on the later amendment to construe legislation; see what Latham CJ and Dixon J said in Grain Elevators Board (Vic) v Dunmunkle Shire [1946] HCA 13; (1946) 73 CLR 70 at 77, 86.
517. It is relevant, too, that the Territory has no equivalent constraint on the award of damages in tort claims against the Crown as provided for in the New Zealand Crown Proceedings Act. That is a significant part of the context for the New Zealand approach and, as noted above (at [490] 11), was relied on by a number of judges in support of the existence of the public law remedy.
518. As to the extrinsic materials, it is clear to me that, with one exception, all the extrinsic material available point directly away from there being a free-standing public law remedy for breaches of the rights set out in Pt 3 of the Human Rights Act. There is no statement of the kind made by the New Zealand Prime Minister when introducing the New Zealand Bill nor that in the Explanatory Note, to which I have referred above (at [490] 4). Indeed, all such statements are quite to the contrary.
519. The only support from the extrinsic material to a free-standing public law remedy appears to be the Note to s 40C(5) of the Human Rights Act. This seems to me to be too weak a reed to weave into a remedy as contended for by Mr Tierney. For the reasons I have set out above, the construction of s 18(7) as creating a free-standing remedy is, if so construed, based on a category mistake.
520. Finally, it is appropriate to discuss briefly the maxim ubi jus ibi remedium - "One of the best known Latin maxims": Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 356 per Toohey J. The Latin may be translated as "where there is a right, there is a remedy". It was invoked by a number of the judges in Baigent's Case in support of the existence of a public law remedy.
521. The maxim was applied in Australia in Royal Insurance Co Ltd v Mylius [1926] HCA 49; (1926) 38 CLR 477, to find a remedy for an insured against his insurer to require the insurer to rebuild damaged buildings so far as the insurance money would go instead of paying out the mortgagees of the property after they had realised their security. The Court held (at 497) that a declaration of the right of Mr Mylius to have the buildings rebuilt was sufficient with liberty to apply so that if the insurer acted contrary to it, "the Court on proper application, and, on proper notice, may enforce it".
522. The Territory submitted that the maxim did not apply here because there was no identification, with the exception of the duty, the right and the absence of a remedy, to "all of the other elements of a cause of action are prescribed by the statute or identifiable within the statutory scheme". No authority was cited for this proposition. By reference to a comparison with Pt 5A of the Human Rights Act, the Territory pointed out that there was no identification of "the proper respondent ... the forum, clarifying the relief that is available in superior courts, inferior courts and tribunals". I have been unable to locate any authoritative support for such requirements. Indeed, the forum and relief were not specified in Royal Insurance Co Ltd v Mylius at all; the Court speculated on various possible remedies.
523. In Banque Keyser Ullmann SA v Skandia (UK) Insurance Co Ltd [1990] 1 QB 665 at 776, Slade LS said:
However, the principle 'ubi jus ibi remedium' cannot, in our judgment, by itself justify a decision to give the remedy of damages in a novel situation not covered by previous authority unless this is preceded by an analysis of the origin and nature of the right in question. The question whether or not the remedy of damages is available may well depend on the nature of the right and of the corresponding duty of the other party.
524. It cannot fairly be said that the judges in Baigent's Case had not undertaken such an analysis.
525. There is a useful and comprehensive consideration of the maxim in R H Kerley, Brooms Legal Maxims (Sweet & Maxwell, 10th ed, 1939) at 118-136. There, at 133-5, consideration is given to its application in relation to breaches of a statute. Three classes of cases are identified, none presently relevant.
With regard to cases of statutory duty not falling within these classes, no general rule can be laid down upon the question whether a person who suffers damage from the breach of a statutory duty can maintain an action in respect of such damage: the question must be decided in each case upon the language and object of the particular statute. It has been held, however, that where a statute creates a duty with the object of preventing a particular mischief, a person who suffers a totally different mischief from a breach of that duty cannot maintain an action therefore; and it has been laid down, with regard to statutory duties, that for mere nonfeasance no action lies except in the case of a duty owed to the plaintiff as well as to the State.
Prima facie a person injured by breach of a statutory duty imposed for his protection has a right of action unless, on consideration of the whole Act, it appears that no such right was intended to be given.
(footnotes omitted)
527. The last paragraph is, in fact, a direct (attributed in a footnote) quote from what Greer LJ said in Monk v Warby [1935] 1 KB 75 at 81.
528. This is the first basis on which I find that the maxim should not be applied. On my analysis of the Human Rights Act as a whole, including, in this case, extrinsic material permissible for working out the meaning of the Act, I do not consider it can be construed as providing for the public law remedy suggested.
529. In the event that this is too wide a conclusion, it seems to me that there is no basis for finding a remedy on the basis of this maxim for a breach of s 18(1) or (2) of the Human Rights Act. There is a remedy - the tort of false imprisonment provides one. There is, in this case, no basis for the finding of the required pre-condition to finding such a remedy exists or should be implied, namely that there is no remedy for the right.
530. Again, should there be a residual area of operation, namely that a breach of the right to be arbitrarily detained, being wider that the requirement for which the tort of false imprisonment is a remedy, namely that the imprisonment be unlawful, so that this breach is not so remediable, then that does not apply in this case for there is no doubt that the imprisonment of Mr Lewis was unlawful.
531. Accordingly, I am satisfied that there is no public law remedy, especially compensation by vindicatory damages, available under the Human Rights Act or, at the very least, for a breach of the rights set out in s 18(1) and (2) and, in particular, the breaches of which I have found that Mr Lewis was a victim.
532. If I am wrong and there is such a remedy, then I would still only award Mr Lewis nominal damages.
533. I accept that, as Lord Kerr of Tonaghmore JSC said in R (Lumba) v Secretary of the Home Department at 324; [253]:
it is surely right that the actual impact on the individual who has been falsely imprisoned (or perhaps more importantly, the impact that could have been avoided) should feature prominently in the assessment of the appropriate amount of compensation.
534. His Lordship said this in the context where nominal damages were in contemplation. As his Lordship had earlier said in the same paragraph:
On the question whether the award of nominal damages or some other measure of compensation is required in false imprisonment claims, I believe that a distinction is clearly merited between those cases where it is plain that the detainees would have been released and those where it can be shown that they would have been lawfully detained, had the correct procedures been followed.
535. Nevertheless, the reasons on which I have relied to find that nominal damages only were appropriate for the tort of false imprisonment also apply here. I rely on them.
536. Further, so far as any public law damages were concerned, it is relevant that the total imprisonment suffered by Mr Lewis did not extend beyond that to which he was sentenced by the Magistrates Court.
537. That is to say, he was sentenced to 52 periods of periodic detention, that is effectively 104 days of actual deprivation of liberty. By the time that the Board cancelled the periodic detention order to which Mr Lewis had been sentenced, he had served 22 days of detention.
538. He was further detained for 82 days. Together, these amount to 104 days of his liberty of which he was deprived in total. That equates to his full sentence of imprisonment, if served by periodic detention. While the procedure was flawed, the deprivation of his liberty was not beyond that which the lawful sentence imposed. Indeed, by the failure of the Territory to seek a stay of his sentence when he was granted bail, perhaps explicable because of what was then believed to have been the law (Quzag v The Queen (No 2) [2015] ACTCA 10), he escaped altogether the statutory consequences of his undoubted breach of the periodic detention order.
539. It seems to me, in those circumstances, that there is no need for any further vindication than the finding that the imprisonment was unlawful because of the breach by the Board of the rules of natural justice.
540. Because of my findings on damages, I do not need to discuss the helpful, extensive and detailed consideration of the way in which the public law remedy of compensatory or vindicatory damages should be assessed as set out in cases such as Taunoa v Attorney-General.
541. The effect of what may be sought to be achieved by such damages would, under the existing law, be achieved by an award of exemplary damages in common law claims against the Territory in appropriate cases to mark the court's disapproval of reprehensible conduct on the part of its officials and to bring home to them the need to respect human rights and to ensure that such officials are appropriately trained and those who commit breaches are appropriately disciplined: Adams v Kennedy [2000] NSWCA 152; 49 NSWLR 78 at 87; [36].
542. Neither party made submissions on costs either in written or oral submissions. In the light of the range of issues to be decided and the possible outcomes, this is unsurprising.
543. I have, of course, not been privy either to any reasons why a special order as to costs should be made, for example, under any Calderbank offer (Calderbank v Calderbank [1976] Fam 93) or otherwise.
544. It is appropriate, however, to express a preliminary view on the issue.
545. Mr Lewis has been successful in his claim to have been falsely imprisoned, but I have found that he is only entitled to nominal damages. I have dismissed his claim for a public law remedy based on the Human Rights Act.
546. Ordinarily, a party who has been successful in proceedings will be indemnified for their costs of the proceedings. This is often put that "the general rule is that costs follow the event": VTS IT Pty Ltd v Russell [2015] ACTSC 230 at [46]- [47].
547. Where a plaintiff was successful in showing that the defendant was liable on the plaintiff's claim, that was "the event" to determine costs, whether the plaintiff recovered substantial or only nominal damages. As Maule J put it in Beaumont v Greathead [1846] EngR 257; (1846) 2 CB 494 at 499; [1846] EngR 257; 135 ER 1039 at 1041, "[n]ominal damages are a mere peg on which to hang costs".
548. In Connolly v Sunday Times Publishing Co Ltd [1908] HCA 69; (1908) 7 CLR 263, however, a jury awarded the appellant 1 shilling in damages for what, if proved, would have been a most serious libel. The trial judge considered that the award of such damages justified the appellant being deprived of his costs. The appellant appealed that decision and the High Court dismissed the appeal.
549. Since then, the costs to be awarded to a plaintiff who recovers only nominal damages has been the subject of some further consideration, moderating the traditional view and some principles have been developed.
550. In Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at 98; [70], McHugh J, said:
Apart from anomalous examples in the equity jurisdiction, there are very few, if any, exceptions to the usual order as to costs outside the area of disentitling conduct. The Court may award costs in favour of a defendant where the plaintiff has obtained only nominal damages. However, this practice can be justified on the basis that, in reality, the successful party lost the litigation and the unsuccessful party won.
(footnotes omitted)
551. This echoed what Devlin J said in Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 at 874, as follows:
No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct. In applying that rule, however, it is necessary to decide whether the plaintiff really has been successful, and I do not think that a plaintiff who recovers nominal damages ought necessarily to be regarded in the ordinary sense of the word as a 'successful' plaintiff. In certain cases he may be, eg, where part of the object of the action is to establish a legal right, wholly irrespective of whether any substantial remedy is obtained. To that extent a plaintiff who recovers nominal damages may properly be regarded as a successful plaintiff, but it is necessary to examine the facts of each particular case.
552. In Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd [2001] WASCA 166 at [9], the Court fleshed out the approach to the issue, observing:
It may be so that an award of only nominal damages will ordinarily be found to disentitle the successful party from an award of costs, at least where the establishment of a legal right is not one of the primary purposes of the proceedings (see Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 at 874 and Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 WLR 394 at 402 - 404). However, the discretion is wide and there is no invariable rule to that effect. We consider that it is open to a court to depart from the usual practice in a case of this kind in which causes of action of this nature are made out, in which the counterclaim largely mirrored the defence in proceedings (claiming substantial damages) initiated by the appellant, and in which the damages claim failed because a wrong approach was taken to the proof of damages.
553. This approach was adopted and refined in Motium Pty Ltd v Arrow Electronics Australia Pty Ltd [2011] WASCA 65(S) at [10], as follows:
While each case must depend upon its own facts, where it is not a primary purpose of proceedings simply to establish or vindicate some legal right but the primary purpose is to recover substantial damages, ordinarily an award of nominal damages will not entitle a party to the costs of the proceedings: see Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd [2001] WASCA 166 [9]. In such a case, the party has obtained something of no real use to them and something which, if they had known it was all that was available, they would not have brought proceedings to recover. It would be contrary to modern notions of the efficient and cost-effective use of judicial resources to enable a party to recover its costs for a pyrrhic victory, having substantively failed in the action.
554. This decision has been cited with approval since then. See, for example, New South Wales v Stevens [2012] NSWCA 415; 82 NSWLR 106 at 111-2; [22], 113; [34]; Romero v Farstad Shipping (Indian Pacific) Pty Ltd (No 3) [2017] FCAFC 102 at 103.
555. In a careful and comprehensive review of the authorities, Bell J in Actrol Parts Pty Ltd v Coppi (No 3) [2015] VSC 758; 49 VR 573 at 597-600; [90]- [98], identified a number of issues that can be distilled from those authorities.
556. These include that the party obtaining nominal damages is no longer automatically regarded as a successful party for the purposes of costs and the old rule that nominal damages are "a peg on which to hang costs" no longer applies. The court must engage in a factual inquiry to determine which party has been successful. Often a party who has recovered only nominal damages has lost the case. If, however, the plaintiff's aim of the suit is to establish a legal right and the plaintiff does so, completely regardless of whether any substantial damages are awarded, the plaintiff may still, to that extent, be regarded as the successful party. The role of nominal damages as vindication is important in some cases. On the other hand, a party who is, in reality, seeking an award of substantial damages, but only recovers nominal damages, will be regarded as the losing party.
557. See also G Dal Pont, The Law of Costs (LexisNexis Butterworths, 3rd ed, 2013) at 21821; [8.39]-[8.41].
558. My provisional assessment of the position is that Mr Lewis was seeking substantial damages. His counsel proposed an award of $120,000. He was, however, also seeking some vindication and this cannot be discounted.
559. The issue of vindication was not insignificant, for the Territory took the view, which I did not uphold, that Mr Lewis was not, in reality, falsely imprisoned at all.
560. The proceedings also concerned to a considerable extent the entitlement to public law remedy of damages and, on this issue, Mr Lewis failed.
561. One option is for the Court to make costs orders as to each issue on which a party succeeded or failed. I explained that approach to costs in Construction, Forestry, Mining and Energy Union v Commissioner, Australian Federal Police (No 2) [2017] ACTSC 10 at [51]- [54]. In those remarks, I also quoted what I had said in VTS IT Pty Ltd v Russell at [73], [75]-[76], as to the problems with such orders, namely the chilling effect on appropriate but creative arguments that develop the law and the complexity of the costs assessment process.
562. Thus, in this case, Mr Lewis was pursuing an argument that had some reasonable support in decisions by Gray J and Mossop AsJ, though, in the end, I found that they did not justify his claim.
563. Balancing these various interests, my provisional view, without hearing from the parties, but in the hope that it will be helpful to them, is that each party should bear their own costs.
564. Unless the parties provide written submissions on this issue within seven days, that is the order I propose to make.
I certify that the preceding five hundred and sixty-four [564] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
Lewis
Australian Capital Territory [2018] ACTSC 19
(1986) 5 NSWLR 338
(1939) 62 CLR 464
(1983) 34 SASR 73
(1993) 178 CLR 44
(1991) 31 FCR 43
(1996) 40 NSWLR 463
(1982) 151 CLR 1
(1989) 16 NSWLR 453
(1908) 7 CLR 263
(1988) 13 NSWLR 714
(1991) 172 CLR 211
(1995) 184 CLR 163
(1993) 32 NSWLR 489
(1992) 177 CLR 292
(1949) 79 CLR 1
(1908) 7 CLR 1
(1946) 73 CLR 70
(1995) 184 CLR 348
(1989) 20 FCR 217
(1978) 18 SASR 321
(1939) 62 CLR 339
(1997) 190 CLR 1
(1987) 164 CLR 1
(1988) 89 FLR 218
(1992) 176 CLR 1
(1954) 90 CLR 177
(1987) 87 FLR 277
(1990) 169 CLR 307
(1998) 88 FCR 242
(1997) 191 CLR 204
(1972) 124 CLR 640
(1971) 124 CLR 1
(1980) 43 FLR 112
(1987) 16 FCR 465
(1961) 105 CLR 549
(1968) 118 CLR 271
(1994) 123 ALR 478
(1981) 34 ALR 322
(1950) 80 CLR 292
(1926) 38 CLR 477
(1971) 17 FLR 438
(1987) 48 SASR 500
(1996) 41 NSWLR 1
(1986) 161 CLR 141
(1992) 110 FLR 123
(1951) 82 CLR 497
(1966) 117 CLR 118
(1971) 124 CLR 621
(1989) 18 NSWLR 48
(1988) 89 FCR 218