It will be noted that s 501 speaks of "the Minister". That term includes the first appellant, Mr Phillip Ruddock, and also the second appellant, Senator Patterson.
63 The decision to cancel the visa was that of Mr Ruddock. He made his decision on 4 September 1999 (i.e. more than three years after Mr Taylor's conviction). Mr Taylor was served with notice of the decision on 4 November 1999.
64 Shortly after 4 November, an officer of the Migration Department, called Mr Michael Crichton, arrested Mr Taylor and detained him. He was under the impression (common to everybody at the time) that Mr Taylor became an "unlawful non-citizen" when his visa was cancelled. Mr Crichton, therefore, had the "reasonable suspicion" referred to in s 189 (1), whereupon it was his duty, not merely a power, to detain Mr Taylor.
65 Mr Taylor remained detained for 161 days (4 November 1999 to 12 April 2000). He was released from detention upon the orders of Callinan J made 12 April 2000. Those orders were made by consent. One order quashed, by way of certiorari, the cancellation of the visa; another prohibited any further proceedings based on that cancellation. (Despite a rather surprising submission from the Commonwealth, it is, I think, clear enough that the former order acted retrospectively to the date of the cancellation, whilst the latter related only prospectively). What was the reason for making those orders, history does not seem to relate, although it may have something to do with a denial of natural justice to Mr Taylor. One result, of course, of the orders was to procure the immediate release of Mr Taylor. Another was to restore the old visa.
66 That visa was cancelled by the second appellant, Senator Patterson, on 30 June 2000. On 6 July 2000, Mr Taylor was again taken into detention by Commonwealth officers. He was held in detention until he was released by order of the High Court made on 7 December 2000 (see Re Patterson; ex parte Taylor (2001) 207 CLR 391), by which time he had been detained for 155 days (6 July 2000 to 7 December 2000).
67 The order of the High Court requires some elaboration. Until that case it was ordinarily assumed that if you were not a citizen you were an alien; that, if you were born outside Australia, your parents were not Australian, and you had not been naturalised as an Australian (the position of Mr Taylor), you were an alien; and that, if you were an alien, your visa could be cancelled under s 501, (whereupon you became an unlawful non-citizen) you could be detained under s 189, and subsequently deported. That that assumption seemed correct is confirmed by the circumstance that the High Court of Australia in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 (by a six to one majority) so decided. See also Pochi v Macphee (1982) 151 CLR 101 per Gibbs CJ, with whom Mason and Wilson JJ agreed.
68 Re Patterson; ex parte Taylor overruled Nolan's Case, by a 4-3 majority. The dissenting trio were Gleeson CJ, Gummow J and Hayne J; the other four judges were the majority. The central concept of the new doctrine enunciated in Re Patterson, ex parte Taylor was that there were no longer simply two categories, citizen and alien; there was a third category, viz a non-citizen non-alien; Mr Taylor fitted into this third category, which consisted of (apparently) any British subject who had resided in Australia permanently since 1984 (the magic of that date being that 1984 was the year in which Parliament passed the Australian Citizenship Amendment Act 1984 (Cth)); and that not being a citizen no longer meant being an alien.
69 The consequences of this concept were that (a) the provisions of s 501 concerning the cancellation of visas no longer applied to persons in Mr Taylor's position; (b) that neither did the power to deport; and (c) probably neither did the power to detain, subject to one condition.
70 The statutory framework in which the officers of the Department thought they were operating was thus shattered, even although they genuinely thought it still existed. The respondent (Mr Taylor) to this appeal made explicit that no attack was made either on the bona fides of either the Ministers or the Departmental officers.
71 Armed with this curial decision, Mr Taylor commenced proceedings against the Ministers (who made the decision to cancel the visas) and the Departmental officers (who effected the detention), for damages for wrongful imprisonment. As I have said, he succeeded and obtained a verdict for $116,000. This is the verdict against which the appellants, representing the Commonwealth, appeal.
72 The first question to be decided is whether either Minister is liable for the tort of wrongful imprisonment. The first reason why this question should be answered in the negative, according to the submissions of the learned Solicitor-General, Mr D Bennett QC, is that there is no legal causal nexus between the Ministerial action of cancelling the visa and the officers of the Department detaining Mr Taylor. It is conceded that the detention was the likely result of the cancellation of the visa, and that it was the natural and probable result. The Solicitor, however, quibbled at the description that it was the "inevitable" result, as her Honour found. I find this disingenuous, and I think her Honour was perfectly correct. By cancelling the visa, the Ministers immediately exposed Mr Taylor as an apparent "unlawful non-citizen" within the meaning of s 189, triggering an obligation to detain; they caused the detention, knowing their actions would lead to that result and could not lead to any other result. The Ministers did not "actively promote" the detention, and perhaps not "participate" in it (see Myer Stores Ltd v Soo [1991] 2 VR 597). However they were the real cause of that imprisonment, and its proximate cause. Their position is little different from what it would have been if they had ordered the detention. I cannot see any escape for the Ministers in an argument based on causation.
73 A second argument advanced on the Ministers' behalf was the absence of "fault" in them. In my view, in the absence of some statutory provision, if a defendant wrongfully imprisons a plaintiff he is guilty of the tort, no matter how innocent, ignorant or even idealistic he may be.
74 It is next appropriate to consider the position of the "officers" of the Department who effected the arrest of Mr Taylor. They are not in the same position as the Ministers; they are in a more advantageous position. A Minister has no power to cancel a visa unless the person affected is an "unlawful non-citizen" (as now understood); if he is a mere non-citizen, the power does not extend to him. An officer's power to detain arises if he either "knows" or "reasonably suspects" that the person affected is an "unlawful non-citizen". Mr Crichton and Miss Campbell could not have "known" Mr Taylor was an "unlawful non-citizen" because he was not, but they could have suspected he was, and did so in fact suspect. The question of whether they are liable for his wrongful imprisonment depends on whether they can be said to have "reasonably" suspected him to be an unlawful non-citizen.
75 Where a statutory provision exonerates a person if he "reasonably suspects" something, and that something does not exist, the mistake may be due to his making a mistake of fact. It was conceded, and properly so, in the present case that a mere mistake of fact does not prevent a suspicion being "reasonable". In the present case, the officers' suspicion cannot be so classified; their suspicion arose out of their belief that if a person in Mr Taylor's position had his visa cancelled he should be arrested and detained. This suspicion was based on their belief that such a cancellation was valid. Clearly, in view of the High Court's decision, it was not valid. They operated under a mistake of law. Mr Taylor's submission to us was that an action dependent on a mistake of law cannot be the result of a "reasonable suspicion". This, the appellants contest.
76 In favour of the respondent is the decision of Dixon J in Little v Commonwealth (1947) 75 CLR 94. That case concerned the power of arrest conferred on a police constable under s 13 of the National Security Act 1939 if he "suspected" that an offence had been committed. Section 13 (3) of the Act provided that no actions would lie against the Commonwealth unless the Governor-General were satisfied that the arrest was made "without any reasonable cause". At 108 his Honour held (of s 13):
"…it does not cover an erroneous belief on the part of the constable or officer as to the legal significance or quality of the acts or omissions, actual or suspected, past or threatened, of the persons arrested."
77 In Marshall v Watson (1972) 124 CLR 640 at 650 Stephen J considered a statutory provision protecting a person from civil or criminal liability. His Honour referred to Little's Case, and held that such statutory provisions were designed to cover cases arising from mistakes of law as well as for mistakes of fact. (His Honour seemed to regard Little's Case as establishing the proposition that such exonerating provisions cover mistakes of law - I should have thought it was to the opposite effect). At any rate, in Webster v Lampard (1993) 177 CLR 598, the majority of the High Court regarded it as settled law that such protective provisions covered mistakes of law as well as mistakes of fact. This is consistent with the decision of the Full Court of the Supreme Court of Queensland in Veivers v Roberts [1980] Qd R 226. I regard the English Court of Appeal decision in Percy v Hall [1997] QB P24 as in consimili casu.
78 In many of these cases there was an express protective subsection. In the present case, s 189 has no such provision. However, in my view the learned Solicitor-General was correct in his submission that the adverb "reasonably" before the verb "suspects" does the work of an express protective subsection.
79 In these circumstances, I cannot see how the officers concerned can be said not to come within the words "reasonably suspects". After all, their suspicions were shared by three members of the High Court of Australia (including the Chief Justice), whom it would be impious of this Court to suggest were acting unreasonably.
80 In the course of argument many rabbits were chased down many burrows. One in particular deserves some, but very brief, mention. There was some discussion whether, as a result of the High Court decision in Taylor's Case, ss 189, 196 and 501 of the Migration Act were valid. It was suggested they were invalid because unconstitutional, not being supported by any head of legislative power. That they were inapplicable to the present case is clear enough, after the High Court decision, but that does not mean they are invalid. I can see no reason why they are not perfectly valid quoad unlawful non-citizens. The relevant head of power is the aliens power (s 51 (xix)) of the Constitution. Gleeson CJ so held in terms in Taylor's Case, and although he was one of the minority I do not see how he can be said to be wrong on this point.
81 On the question of damages, we have before us both an appeal and a cross-appeal. Both, in my view, should be dismissed. Her Honour's decisions were not shown to be erroneous. This is particularly so in regard to aggravated and exemplary damages: the Commonwealth, whatever its faults, was neither through its Ministries nor its officers guilty of behaving contumeliously, arrogantly or outrageously.
82 The final submission of the appellants, and one which was not raised before her Honour, was that Mr Taylor was estopped from suing for damages for wrongful imprisonment because he had not sought such ruling in his High Court case. Reliance in this regard was placed on Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. This point may be dealt with summarily. It must fail. An overall requirement of an Anshun estoppel is reasonableness. It does not arise unless it was unreasonable of the party sought to be estopped not to plead the cause of action in question. I cannot see how it would be unreasonable for Mr Taylor to refrain from mentioning to the High Court that he wished to sue the appellants in damages for wrongful imprisonment, particularly as there was not the slightest chance that the High Court would have done anything about it if he had.
83 I would dismiss the appeal with costs.
84 IPP JA: I have read the reasons of Spigelman CJ and Meagher JA. I agree with those reasons and the orders proposed. I wish merely to express in my own words why I consider that the appellants caused the damage sustained by the respondent.
85 As Professor Jane Stapelton has explained in her article 'Cause-in-Fact and the Scope of Liability for Consequences' (2003) 119 LQR 388, there are two fundamental questions involved in the determination of causation in tort.
86 The first relates to the factual aspect of causation, namely, the aspect that is concerned with whether the negligent conduct in question played a part in bringing about the harm, the subject of the claim. Professor Stapelton argues (at 389) that this inquiry involves determining whether there was, on the part the defendant, "historical involvement in [the plaintiff] suffering actionable damage".
87 The second aspect concerns "the 'appropriate' scope of liability for the consequences of tortious conduct" (Stapelton op cit at 411). In other words, the ultimate question to be answered when addressing the second aspect is a normative one, namely, whether the defendant ought to be held liable to pay damages for that harm. This inquiry may involve normative issues of a general kind, or issues such as whether the so-called evidentiary gap should be bridged (in the sense explained in Bonnington Castings Ltd v Wardlaw [1956] AC 613), whether the defendant materially increased the risk (in the sense explained in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32), and whether the damage claimed is too remote.
88 Terminology such as "common sense causation" and "proximate" or "dominant" or "effective" or even "legal" cause conceal judicial reasoning, rather than explain it. These terms afford little guidance about when negligent conduct will be considered to have caused harm (see Stapelton, 'Duty of Care Factors: a Selection from the Judicial Menus', an essay in The Law of Obligations: Essays in Celebration of John Fleming, Cane and Stapelton, ed, 59 at 61; Review of the Law of Negligence (2002) at 108 to 119).
89 The approach to causation that I have set out forms the basis of s 5D of the Civil Liability Amendment (Personal Responsibility) Act 2002. This Act does not govern the present action but, in my view, the principles it embodies in regard to causation are in accord with the common law.
90 An example of how this approach is to be applied is Chester v Afshar [2002] 3 WLR 1195. The factual situation in this case was similar to that in Chappel v Hart (1998) 195 CLR 232. Chester v Afshar involved a surgeon who negligently failed to warn his patient of the risk of an operation. The patient underwent the operation and the risk materialised through no fault of the surgeon. The English Court of Appeal accepted that, had the surgeon not given negligent advice, the patient would not have had the operation on the particular day that she did. Had she had the operation on a different day, the harmful condition that in fact materialised may not have been brought about.
91 On these facts, the Court of Appeal found that the doctor had caused the injury. Part of its reasoning was that the law was designed to require medical practitioners properly to inform their patients of the risks attendant on their treatment. As the surgeon failed to take proper care in regard to this duty, and that resulted in the patient consenting to an operation to which she would not otherwise have given her consent, the purpose of the rule would be thwarted if the surgeon were not to be held responsible. The very risk about which the surgeon failed to warn the patient materialised and caused her an injury she would not otherwise have suffered. In these circumstances, the Court of Appeal considered that it would be unjust to hold that the effective cause of the patient's injury was the random occurrence of the very small risk in the condition occurring.
92 This was a normative decision, that is, a decision based on policy considerations.
93 It remains to apply this approach to the present case.
94 There can be no doubt that, but for the Ministerial decision to cancel the visa, the respondent would not have been detained. The first question, that is the question concerning factual or historical causation, is, self-evidently, to be answered in the affirmative.
95 I now turn to the second aspect of causation, the normative question. As Spigelman CJ has emphasised, it is a fundamental purpose of the common law to protect the personal liberty of individuals. The notion in our society that it is fundamentally wrong to deprive an individual, unlawfully, of his or her liberty is of ancient lineage; it is a basic value with very deep roots. In this case, the appellants unlawfully deprived the respondent of his liberty. Accordingly, for normative reasons, I consider that the appellants ought to be held liable to pay damages for the harm the respondent suffered. It would be unjust to hold otherwise.
96 For these reasons, in my view, causation was established.