Reeves v State of New South Wales

District Court of NSW|2023-06-29|Before: Mr J

Introduction

On 13 June 2023, I delivered my reasons in respect to liability issues (Reeves v State of New South Wales [2023] NSWDC 196 (the "Liability Judgment")), and provided opportunity to both parties to make written submissions on damages supplementary to those which had been supplied to the Court during the hearing [1] . I indicated that assessment of damages would be resolved on the papers, a course to which the parties had agreed.
These reasons assume the reader's familiarity with the Liability Judgment. It suffices to say that Mr Reeves partially succeeded in his claim for damages on his cause of action for false imprisonment. This was premised upon my finding that his period in custody after his arrest (whose validity I determined was lawful) was unreasonably extended as a consequence of his continuing to be questioned by DS Michaelson and his colleague, Detective Langerak in an interviewing room after Mr Reeves had made it known to them that he declined to participate any further in such interview.

The need for application of counterfactual analysis

Before addressing each of these heads of loss, the State submitted that there were various alternative potential findings relating to damages which had not been made in the Liability Judgment and which needed to be resolved prior to considering the recovery of compensatory (general) damages. This was to do with what, in shorthand, might be described as an issue of causation. The Court was invited to engage in counterfactual analysis.

Parties' submissions

The State suggested the following alternative possible findings: 1. (the State's preference) the period of 'imprisonment' (in the interviewing room) did not prolong the overall period by which Mr Reeves would have been released from lawful custody (which was ultimately 11:01pm), since he would have been returned to and remained in the holding cell until 11:01pm; 2. the period of imprisonment in the interviewing room meant that Mr Reeves should have been released 16 minutes earlier (the period of the interview calculated as being wrongful) than 11:01pm; 3. the plaintiff would have been released from custody altogether at the point when the interview should have been determined.
As to this last possible finding, the State indicated that for the Court to accept it would be contrary to extant findings in the Liability Judgment; that Mr Reeves had not proposed this finding in his supplementary submissions on damages in chief, the State opposed it and, if Mr Reeves wanted to argue for it, the State would wish to have further opportunity to argue against it.
In the light of that indication, Mr Reeves was given further opportunity specifically to address this potential finding (c). He agreed that this potential finding was not available.
This left proposed findings (a) and (b).
The State submitted, in support of alternative finding (a) that the effect of the reasons (especially at J [185]) was that but for Mr Reeves being detained in the interviewing room, Mr Reeves would have been in the holding cell rather than in the interview room. On this basis, Mr Reeves was entitled to nothing more than nominal damages.
But if alternative finding (b) was right, the period of 16 minutes of being detained in the interviewing room was so short as to justify nothing more than nominal damages or, perhaps a sum of $1,000.
Mr Reeves submitted that proposed alternative finding (a) was erroneous and contrary to findings made in the Liability Judgment at J[185] and [177(9)]. Mr Reeves argued that the State's reliance upon Lewis was misconceived. Lewis was only authority for the proposition that a plaintiff may only be awarded nominal damages for deprivation of liberty absent a 'counterfactual basis for the plaintiff to be at liberty.' But for DS Michaelson intentionally placing Mr Reeves in the interviewing room and persisting in asking him questions after he refused to answer, Mr Reeves would not have been detained for as long as he was. He would have been released from custody 16 minutes earlier than he was. A practical demonstration of this was that DS Michaelson was delayed in (and distracted from) starting the charge process by the 16 minutes used (unreasonably) to detain Mr Reeves in the interviewing room.

Consideration of the counterfactual

The reason for a counterfactual, in this context, was set out by Edelman J in Lewis at [151] (citations omitted): "Causation is a concept that establishes a link between a physical event and a physical outcome. Where a claim is brought for compensation for loss, the causal question asks whether the defendant's wrongful act was necessary for the loss: "did the defendant's act make a difference" to that outcome? That question is posed as a counterfactual: would the loss have lawfully occurred without the defendant's wrongful act? In other words, would the plaintiff have suffered the same loss but without a violation of their rights? If the loss would not otherwise have occurred then, subject to other legal issues including remoteness of damage, it is easy to see why the defendant should be responsible for the loss. Conversely, if the defendant's act made no difference to the outcome, because "but for" the act of the defendant the loss would have occurred lawfully, then the defendant's act was not a cause of the loss and the defendant's responsibility for that loss becomes more difficult to justify."
At [178], his Honour also observed that: "… the test for causation of loss asks whether the wrongful act was necessary for the loss. The "but for" or counterfactual approach "directs us to change one thing at a time and see if the outcome changes". The change is the removal of the wrongful act. If the loss would lawfully have occurred but for the wrongful act then the wrongful act was not necessary for the loss. The counterfactual approach thus involves a hypothetical question where no other fact or circumstance is changed other than those which constituted the wrongful act."
Prima facie, the discrete period of Mr Reeves' detention in the interviewing room (16 minutes) beyond the point when I had determined that it became unreasonable (and therefore unlawful) meant that his overall period of otherwise lawful custody was prolonged by that discrete period of time. In my view, although Mr Reeves bore the onus (on the probabilities) to establish this causal connection, the State bore an evidentiary onus to prove that his overall period in lawful custody (i.e. in Chatswood Police Station) would have remained unaffected by that discrete period of time in which he was unreasonably (and therefore unlawfully) 'imprisoned' in the interviewing room. That is, the State bore an evidentiary burden that he would have remained in lawful custody in Chatswood police station until 11:01pm (the time he was actually released). This it did not discharge. For it do to so, there would needed to have been some evidence that even allowing for that 16 minute period in the interviewing room, he would still have been discharged at 11:01pm. Other things would have filled in that 16-minute period that would have justified his detention in the holding cell. There was no evidence for this. I agree with Mr Reeves that the effect of the wrongful conduct meant that DS Michaelson was delayed in commencing the charging process. Contrary also to the State's position, the finding made at J[185] did not indicate the Court's support for proposed finding (a). My reasoning in favour of proposed finding (b) is reflected in what I stated at J[177(8) & (9)], J[185] and J[253(c)].
Mr Reeves claims an entitlement to an award for damages reflecting three components: general damages, aggravated damages and exemplary damages. He also claims interest, on awards for general and aggravated damages, but not for exemplary damages.

Mr Reeves' submissions in chief

On general damages, Mr Reeves submitted that the award is primarily intended to vindicate personal liberty and infringement of a legal right to liberty. He emphasised, in particular, an observation from Walsh J in Watson v Marshall (1971) 124 CLR 621 (at 632) that interference with a right of this kind "even for a short period is not a trivial wrong" [5] . It did not matter that DS Michaelson did not intend to cause emotional injury to him or whether or not he acted in bad faith [6] . I would add that in Walter v Alltools (1944) 61 TLR 39 (which was cited by Mr Reeves in his claim for aggravated damages [7] ), it was said that false imprisonment trenches not only on a claimant's liberty, but also the claimant's dignity and reputation [8] . So, it was submitted, general damages not only had to reflect interference with an important right, but also loss associated with it.
Mr Reeves argued that, although DS Michaelson's conduct was not overtly degrading, he was still subjected to a forced interrogation, over his protest, and this was conduct engaged in without lawful justification. A corollary of the right to silence was the right to be free from unwanted interrogation [9] and this was deliberately trampled upon. To add further to the context, this was the first time Mr Reeves was in custody, his position was explicable because of legal advice that he had received and he was confronted with a serious offence, gauged by the maximum penalty for the offence. He was also removed from the oversight of the custody manager who was responsible for his care (LEPRA, s 3). These matters had to be factored in and it would be erroneous simply to have regard to the relatively short duration of the wrong.
By way of a 'comparable' award, Mr Reeves referred the Court to the decision in State of NSW v Cuthbertson [2018] NSWCA 320 ("Cuthbertson"), to a claimant who received a sum of $7,000 in general damages for a false imprisonment that lasted for 12 minutes. (A combined allowance for aggravated and exemplary damages for $15,000 was awarded, but reduced on appeal). This, it was said would accommodate the 'imprisonment' and transgression of his right, whilst recognising the lawfulness of his being arrested.

The State's submissions

The State submitted that the state of the authorities was such that there is no entitlement in a plaintiff, for this tort, to have general damages assessed by reference to 'vindication' [10] . Although there was an infringement of the right to liberty, and that this would justify an award of nominal damages, the issue was whether anything more was justified. Despite Mr Reeves' evidence about his feeling scared or anxious when in the interviewing room, no 'real loss' sounding in compensatory damages had been established, especially in the absence of any threat or use of force. The State referred to my observation from the video recording of the ERISP of Mr Reeves appearing as 'downcast' or 'flat' and there were no manifestations of any other significant anxiety, fear or physical distress in him. Further, given my findings, not all of the period in the interviewing room was unreasonable, so Mr Reeves was not entitled to have taken into account in his favour his internal feelings to the point where I had determined that his detention in the interviewing room was unreasonable.
The State further submitted that the Court needed to recognise or take into account that Mr Reeves must have had injured feelings before the wrongful conduct, owing to the circumstances of his arrest. His claim for loss substantially amounted to an argument that existing injured feelings (not attributable to wrongful conduct) were only exacerbated by his being required to participate in an interview after he had requested that it be terminated. There was no evidence to measure what that was.
The State submitted that only nominal damages were warranted. But if any award for general damages was to be awarded, it should not exceed $1,000. This reflected the brief period of unreasonable detention (16 minutes); the absence of overt threat made, or force used, by police; the absence of criticism about the way that DS Michaelson conducted the questioning; and the lawfulness of the arrest.
The State submitted that Cuthbertson was not truly comparable. In that case, the initial arrest was wrongful and the facts also involved physical restraint, manhandling and pointing a cannister at the victim's face in a public place. A more comparable case was Pham v State of NSW [2019] NSWDC 73 ("Pham") where general damages were awarded by the trial judge (contingently, given that no liability was established) for $1,000 for the plaintiff being placed in a police wagon.

Mr Reeves' submissions in reply

Mr Reeves maintained the correctness of his statement of principles for awards of general damages. This was, in short, that deprivation of liberty per se was sufficient to establish an award of compensatory damages. It is only if there was 'no counterfactual basis for a plaintiff to be at liberty' that nominal damages would be awarded. There was a counterfactual here.
But if it was not, Mr Reeves raised as a comparable case the decision of TD v NSW [2013] NSWCA 32 ("TD"), where a person was detained in a prison, as distinct from being detained in a hospital. Here DS Michaelson held Mr Reeves in a closed room utilised for an unauthorised purpose.
Cuthbertson recognised that compensatory damages could be awarded for false imprisonment separately from damages for arrest. Pham was also distinguishable as a case where the Court had rejected factual claims advanced by the plaintiff.

Consideration of general damages

This is not a situation, analogous to occurred in Lewis, where, but for DS Michaelson's wrongful act (prolonging Mr Reeves in the interviewing room), he would have remained imprisoned anyway (albeit in a different part of Chatswood police station, the holding cell), in the sense of having his freedom of movement diminished. Nor is it a case, like TD, where the plaintiff was lawfully detained, in a general sense, but the actual place where he was detained was wrongful. To reiterate, I have found that, on the probabilities, Mr Reeves would have been released from custody in Chatswood station, overall, 16 minutes earlier than he was. The prolongation of his period in custody by this period was not 'inevitable.' [11] It was wrongful.
These findings take this case outside the realm where only nominal damages should be awarded. My task now is to value the award of compensatory damages which will respond to the loss which Mr Reeves suffered. As Gageler J said in Lewis at [31] there is no threshold of loss that Mr Reeves must prove.
Although I have considered them, I do not find that the decisions of Cuthbertson or Pham are especially illuminating given the factual differences and, especially, the circumstance that general damages were actually (or in the case of Pham contingently) awarded where there were overlapping torts. In this case, there was only one tort for which damages are recoverable. There is, in my view, force, in the State's argument that much of the intangible injury (amounting, in substance, to injured feelings) which Mr Reeves sustained on 22 October 2020 was due to the non-tortious conduct of DS Michaelson in (lawfully) arresting Mr Reeves, including his handcuffing and his being (again lawfully) taken into the custody of Chatswood police station (Ruddock v Taylor [2003] NSWCA 262 at [49]).
Further, in my view, it is a relevant factor that at the point of arrest, in North Sydney, and soon after his entry into custody in Chatswood police station, Mr Reeves received indications that police may want to interview him. In the Liability Judgment, I indicated (J[178]) that it was not wrongful for him to be taken into the interviewing room at all, when he was exposed to what might be accepted as a slightly intimidating place (although it might be said to be a place no less intimidating to him than his being placed in the holding cell). The wrongful conduct by DS Michaelson comprised him persisting with the interview after Mr Reeves told them that he did not wish to participate by which point he was accustomed to the environment. I also indicated in argument that he appeared "downcast or flat" but I attribute some of that to the monotony of his being detained and forced to listen to DS Michaelson essentially following a pre-prepared script of raising the complainant's allegations against him. His distress associated with the circumstance of how he was wrongly imprisoned was not, and could not, have been elevated by the manner or content of the questioning. The award needs to also take into account the relatively brief period of time in which Mr Reeves was falsely imprisoned.
Nevertheless, although the High Court determined in Lewis that there was not some entitlement to 'vindicatory damages,' that is not to say that where compensatory damages are recoverable, as I have found to be the case here, that particular award cannot take into account Mr Reeves' vindication of his legal right not to be unlawfully imprisoned [12] . The High Court did not say that the interest of vindication could only be exclusively served by an award of nominal damages. The High Court's focus in Lewis was on whether 'vindicatory damages' could be recovered, as a new or distinct species of damages, independently from an award for compensatory damages, in circumstances where a claimant was unable to establish loss arising from false imprisonment through the application of counterfactual analysis.
The award needs to take into account the injured feelings identified by Mr Reeves after he indicated during the interview that he did not wish to participate; that he was "scared" and "very anxious"; wondering whether the advice he received from his solicitor was wrong (T 22.16). I also attribute to Mr Reeves' justifiable indignation that he was unlawfully detained in the interviewing room albeit briefly. Damages should properly allow for vindication.
In my opinion, Mr Reeves is entitled to an award of $5,000.

Mr Reeves' submissions

On aggravated damages, it is apparent from Lamb v Contogno (1987) 164 CLR 1 that aggravated damages can be compensatory in nature and can be awarded for injury to the plaintiff's feelings caused by insult or humiliation. But save for one matter shortly turned to, there was little more that Mr Reeves said about this award than that which had not been said about general damages. Mr Reeves noted that this award was designed to reflect the circumstances and manner of the defendant's wrongdoing and (citing the decision in Walter which I referred to earlier) could be awarded where, for example, the defendant did not express regret. To the contrary, it persisted in a dogged defence of this claim.

The State's submissions

The same matters that the State referred to in opposition to any substantial award for general damages was relied upon in its opposition to recovery under this head. The State emphasised that nothing was done in the period in the interviewing room which would have increased Mr Reeves' hurt over and above any award for compensatory damages.

Mr Reeves' submissions in reply

Mr Reeves noted that the State failed to apologise to him and reiterated that it had doggedly persisted in its defence. What was worse, the State sought to downplay the seriousness of DS Michaelson's wrongful actions so as to reduce its exposure to damages for infringement of this human right.

Consideration of aggravated damages

In State of NSW v Ibbett (2005) 65 NSWLR 168 at [83], it was said that an award of aggravated damages is viewed from the plaintiff's perspective; whereas exemplary damages could be viewed from the perspective of a defendant [13] ; although the same circumstances may justify either award or both.
I note that in Cuthbertson, McColl JA indicated that although it was not wrong to combine aggravated damages and exemplary damages in a single award, it was preferable that there be separate awards. I propose, therefore, to treat them separately.
Functionally, an award of aggravated damages tends to maximise the award for compensatory damages: Cuthbertson per McColl JA at [118].
The factors Mr Reeves focussed upon as warranting this head of damages were: (a) the State's failure to apologise to Mr Reeves; (b) the State's maintaining a defence to this particular claim; and (c) trivialising the loss caused.
A failure by an unsuccessful defendant to apologise to the plaintiff may result in such award, but only if the defendant's conduct was improper, unjustifiable or lacking in bona fides (KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden [2020] NSWCA 28 at [150]).
To the extent that reliance is placed upon a defendant's failure to apologise, this particularly requires proof of other unjustifiable conduct: thus if, say, a defendant runs a defence that is bona fide and not unreasonable, or puts the plaintiff to proof, this basis for the award would not be established (V'landys v Australian Broadcasting Corporation (No.3) [2021] FCA 500 [14] at [189]).
I do not consider that there was any mala fides, or lack of justification of impropriety in the State defending a claim for liability on the basis of what was commonly referred to at trial as 'secondary' false imprisonment. This was so whether the State's defence was maintained 'doggedly' or not. It was a 'novel' claim for which Mr Reeves had advanced no prior precedent and, as was evident from the passage at J [172]-[186], it was determined in a process of statutory construction not previously undertaken. It could not be said, therefore that there was any unjustifiable conduct by the State that accompanied its failure to apologise. Further, just because Mr Reeves prevailed on the point in the Liability Judgment does not now make the State's omission to apologise unjustifiable, where its position was reasonably arguable.
The State did not trivialise the loss to Mr Reeves. It reasonably advanced, as was customary, principles for the assessment of that loss.
I am unable to accept that there should be an additional award for aggravated damages.

Mr Reeves' submissions

On exemplary damages, Mr Reeves acknowledged that this award was for 'conscious wrongdoing in contumelious disregard of' another's rights [15] . He submitted that in circumstances where DS Michaelson knew of Mr Reeves' right to silence and that Mr Reeves had exercised it, the interview should have ended, but DS Michaelson persisted with it. The inescapable inference was that the repeated questioning amounted to a conscious contumelious disregard of Mr Reeves' right to silence which resulted in his being unlawfully imprisoned.
Alternatively, Mr Reeves referred to a passage from the judgment of Spigelman CJ in Ibbett that it sufficed to sustain such allowance that the defendant's conduct was 'high-handed' [16] . Being a trained detective, his assertion of a common law right to conduct an interrogation against a person's will could not be written off as an isolated event but satisfied the description of it being high-handed. Further, although this may have been a novel case, it was nonetheless one of public importance so an award of damages to cause a sting, to punish and deter, was justified. The plaintiff nominated a sum of $20,000 as a proper allowance.

The State's submissions

The State submitted that Mr Reeves' mischaracterised the facts. There was no 'forced interrogation.' All that DS Michaelson did was ask a few questions in the course of reading out the complainant's allegations during which DS Michaelson repeatedly reminded Mr Reeves of his right to silence. No physical force was used. There was nothing intimidatory about the manner of conducting the interview. The custody manager was not required. The findings in the Liability Judgment rose no higher than that the wrongful conduct was unreasonable; not that it was intentionally and knowingly wrongful. At most, DS Michaelson would only have known that his conduct was futile and he gave evidence at the hearing that he honestly believed he had an entitlement to ask the questions.

Mr Reeves' submissions in reply

Mr Reeves argues that the State seeks to sidestep the finding in the Liability Judgment about DS Michaelson's intention to detain him in the interviewing room. Implicitly, it appeared to me, Mr Reeves sought to cast doubt upon the honesty of DS Michaelson's expressed belief about the source of his asserted entitlement to continue to question Mr Reeves in the interviewing room. The State trivialised his breach of the most important human right, compounded by his sustained attack on Mr Reeves' right to silence.
Mr Reeves' Counsel was not required to put to DS Michaelson that his conduct was in contumelious disregard of Mr Reeves' rights. At any rate, it is sufficient to make out an award of exemplary damages that DS Michaelson's conduct was high-handed (even if not consciously so).

Consideration of exemplary damages

An award of exemplary damages required a finding that the conduct of the officer showed a conscious and contumelious disregard for the respondent's rights: Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118 at 154.
It is beside the point, when fixing the remedy, that DS Michaelson acted intentionally: it went without saying that the tort of false imprisonment was an intentional tort.
Far from DS Michaelson acting in or with a conscious (and contumelious) disregard of Mr Reeves' rights, I find that he acted on a misconceived basis of thinking that he had a right to question an arrested person, by a compulsory interview, in an interviewing room over the accused's person's objection to participating in an interview.
I do not accept the implicit, or faintly pressed, suggestion that because of his training, he must have known that what he was doing was wrong. I do not accept the insinuation apparent in Mr Reeves' submissions in reply that his belief as to his entitlement was dishonest - plainly a grave allegation to make against a police officer which I find is not substantiated.
His error could, in substance, be characterised as an error of law. There was, moreover, nothing 'contumelious' or high handed about his conduct. He was courteous, even considerate, towards Mr Reeves and he reiterated or recognised, on multiple occasions, Mr Reeves' right to silence in relation to particular questions asked of him.
Consideration also needs to be given to the content of the questions DS Michaelson actually raised of Mr Reeves. By and large, they were in propositional form, raising the allegations that had been made against him. However misconceived was his thinking in pursuing the interview after Mr Reeves indicated that he did not wish to participate, and whatever injured feelings Mr Reeves had about continuing to be questioned, from DS Michaelson's perspective, the content of the questions did at least serve a useful function for Mr Reeves in informing him about those questions which, however confronting it was for him to hear them, he was at least informed. It was a far cry from a position where he was being cajoled or bullied by DS Michaelson into agreeing with them.
Accepting for present purposes that functions of this award can be used to restrain executive power, it is not axiomatic that because a defendant is the State, such award would follow as of course. The objects underlying such award to 'punish' and 'deter,' or indicating the Court's 'disapprobation' of the conduct, does not obviate the requirement for proof of the high bar of a 'contumelious' disregard of a plaintiff's rights (Cuthbertson at [152]).
No award for exemplary damages is warranted in the circumstances.

Costs

The State has asked to be heard on the question of costs.

Orders

The Court orders: 1. Judgment for the plaintiff for the sum of $5,000, plus interest on that amount pursuant to s 100 of the Civil Procedure Act 2005 (NSW). 2. Costs are reserved.
The Court further directs that: 1. The State is to serve a short outline of written submissions (not exceeding 3 pages, excluding evidentiary attachments) on costs within 3 days of this judgment. 2. Mr Reeves is to serve a short outline of written submissions (not exceeding 3 pages, excluding evidentiary attachments) on costs within a further 3 days. 3. Contemporaneously with service of these documents, the parties are to supply copies (in hard copy and 'Word' version). 4. The question of costs will be determined on the papers.

Endnotes

The parties had initially addressed damages in their respective closing written submissions (MFI 2 & 3) supplied during the hearing
Lewis v Australian Capital Territory (2020) 271 CLR 192 ("Lewis") at [50]
Lewis, per Gageler J, at [29]
Lewis, per Gordon J, at [45]-[47], [50], [72]
Applied in State of NSW v Smith [2017] NSWCA 194 at [157]
Ruddock v Taylor (2005) 222 CLR 612 per Kirby J at [140]
As it was by Harrison J in Beckett v State of New South Wales [2015] NSWSC 1017 at [717] for this purpose
Takiota v AG [2009] All ER (D) 47 (Sep); [2009] UKPC 11; C Sappideen & P Vines, Fleming's The Law of Torts (10th ed), Thomson Reuters, [2.80], p 38
Lee v NSW Crime Commission (2013) 251 CLR 196, which authority was curiously was not cited at the hearing on liability
Lewis at [51]
Lewis, per Gordon J at [103]
Lewis at [15], [45], [109]
Followed in Ibbett (2006) 229 CLR 638 at 647 [34]
The appeal from this decision (not concerning damages issues) was dismissed: V'landys v Australian Broadcasting Commission [2023] FCAFC 80
Gray v Motor Accident Commission (1998) 196 CLR 1 at 6-7
(2005) 65 NSWLR 168 per Spigelman CJ at [40]-[52] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2023

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Judgment (19 paragraphs)

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