ALLOWED/DISMISSED: APPEAL ALLOWED; CROSS-APPEAL DISMISSED

After a criminal defamation charge laid by the appellant in Cessnock Local Court was dismissed, the appellant was ordered to pay costs of $5,000. The terms of the order required payment within three months or in default 200 days imprisonment with hard labour. The appellant did not pay the amount owing and the first respondent, then a magistrate, issued a warrant of committal in respect of the costs order. The appellant was arrested and taken to gaol. He commenced proceedings to declare his imprisonment illegal and after 56 days in gaol was released on bail. Lee J found that there was no statutory authority for the issue and execution of the warrant and ordered that it be quashed (see [1984] 1 NSWLR 449).

The appellant then commenced proceedings claiming damages for false imprisonment. On 27 April 1993, Young J delivered judgment finding for the appellant and assessing damages in the amount of $9,400 after allowing a set-off of $1,400. However, his Honour held that s 144 of the Justices Act 1902 (NSW) applied and required that the verdict be reduced to 2 cents. The appellant appealed on the basis that Young J erred in his application of s 144, in the assessment of damages, and in allowing the set-off. The respondent cross-appealed relying on a number of defences.

(1) There was no punishment by way of imprisonment assigned by law for non-payment of the sum the appellant was ordered to pay. Section 144 did not apply to reduce the damages to 2 cents.

(2) Young J's provisional award for general damages is so far outside the permissible range of compensatory damages as to be manifestly inadequate.

(3) There was no legal basis for the reduction of the damages by set-off.

(4) There was no evidence upon which the court could infer that the appellant consented to his own incarceration.

(5) A defence based on public policy is not available - an entitlement to damages for false imprisonment does not constitute a `benefit' arising from the `crime' of failing to comply with a costs order. Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147.

(6) Having been a party to the proceedings before Lee J and having consented to the dismissal of an appeal from that decision, the first respondent is estopped from now seeking to challenge the validity of the warrant: Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45; (1981) 147 CLR 589.

(7) The defences in ss 135, 136 and 137 of the Justices Act are not available to the first respondent.

(8) The defence of judicial officer immunity, as outlined in Sirros v Moore [1975] QB 118, was not taken in the court below and cannot now be relied on.

(9) Young J applied the correct legal test and then decided as a question of fact that the first respondent was a person who was active in promoting and causing the imprisonment of the appellant: Aitken v Bedwell (1827) 173 ER 1084; Myer Stores Ltd v Soo [1991] VicRp 97; [1991] 2 VR 597 referred to.

(3) The judgment and orders of Young J set aside and in lieu thereof direct entry of judgment for the appellant in the sum of $75,000.00, such

(4) The first respondent to pay the appellant's costs of the trial and on appeal;

(5) The appellant to pay the second respondent's costs of the trial and on appeal (such costs being restricted to those which would not have been incurred in defending the claim and the appeal on behalf of the first respondent);

(6) Liberty to apply in relation to the form of the orders on 24 hours notice is reserved.

CLARKE JA: In the proceedings giving rise to this appeal, the appellant, Michael Edward Spautz, sued the respondents for damages for false imprisonment. The first respondent, K Butterworth, is the magistrate who issued the warrant for the appellant's arrest and imprisonment, while the second respondent is the State of New South Wales.

The background facts are that the appellant was a senior lecturer with the University of Newcastle in the Department of Commerce. During 1978 there was a conflict with another professor in the University whom the appellant accused of plagiarism. An enquiry held into the allegations resulted in the appellant being dismissed as from 23 May 1980. On 11 August 1981, the appellant laid information against the professor in the Cessnock Local Court, charging him with criminal defamation. On 30 June 1982 Mr Cleary SM dismissed the charge and ordered the appellant to pay costs of $5,000. The terms of the order required payment within three months or in default 200 days imprisonment with hard labour.

The appellant did not pay the amount owing, and on 13 October 1982 the first respondent, who was then a magistrate at Wallsend, issued a warrant of committal in respect of the order made by Mr Cleary. The circumstances surrounding the execution of the warrant are that on 25 October 1983, the appellant went to the police station to see a copy of the warrant. He was there arrested and taken to Maitland Gaol. On 31 October 1983 he was transferred to Cessnock Correction Centre.

The appellant commenced proceedings to declare his imprisonment illegal and was released on bail on 20 December 1983, having spent 56 days in gaol. These proceedings were heard by Lee J who found that no statutory authority existed for the issue and execution of the warrant, with the consequence that, in the absence of retroactive legislative enactment, the appellant could not lawfully be punished by imprisonment for the failure to pay the costs as ordered (see Spautz v Dempsey [1984] 1 NSWLR 449). On 14 June 1984, Lee J ordered that the warrant be quashed and set aside conditions imposed on the appellant's bail. The defendants lodged a notice of appeal, but the appeal was abandoned and dismissed by consent several days before the date on which it had been listed for hearing.

The appellant then commenced proceedings in the Supreme Court claiming damages for false imprisonment. The appellant claimed not only damages for pecuniary loss but also aggravated and exemplary damages on the basis that the imprisonment subjected him to much humiliation and disgrace and brought him into ridicule and contempt, by reason of which he sustained severe shock and mental anguish. The proceedings were heard by Young J, and on 27 April 1993, his Honour delivered judgment, finding for the appellant and assessing the damages in the amount of $9,400 after allowing a set-off of $1,400. The damages were awarded under the following heads:

The set-off was allowed on the basis that the $100 per day should be reduced by $25 for each day spent in prison (x 56 days = $1,400) as the period in prison reduced the amount of costs which the appellant had to pay. His Honour held that the case against the second respondent was not made out for the reason that the issuing of a commitment warrant is a judicial act for which the Crown cannot be vicariously liable. The judgment was therefore against the first respondent only. However, his Honour held that section 144 of the Justices Act 1902 (NSW) applied and required that the verdict be reduced to 2 cents and that no order be made as to costs.

The appellant originally appealed on the following bases:

(1) his Honour erred in holding that the second respondent was not vicariously liable for the false imprisonment of the appellant;

(2) his Honour's finding that exemplary damages could not be awarded against the respondents was wrong in law;

(3) the assessment of general damages at the rate of $100 per day and the assessment of aggravated damages at $5,000 were in each case arbitrary and manifestly inadequate;

(4) the reduction of the damages by $1,400 as a set-off was erroneous; and

(5) the ruling that s 144 of the Justices Act applied was based upon a misconstruction of the section and the facts of the case.

The first two grounds, that is, those relating to vicarious liability and exemplary damages, were abandoned at the beginning of the hearing of the appeal, leaving the Court to consider the effect of s 144 of the Justices Act 1902, the assessment of damages, and the correctness of the set-off. The remaining issues to be decided on the appeal, therefore, involved only the appellant and the first respondent.

Both a Notice of Contention and a Notice of Cross-appeal were filed by the first respondent, it being suggested that because of the particular order which was made there was some doubt which was appropriate. However, the same issues arise on both, namely, whether the appellant's proceedings should have been dismissed on the grounds that the appellant consented to his imprisonment, or on the grounds of public policy. At the hearing of the appeal, the first respondent sought leave to file an amended notice of cross-appeal and an amended notice of contention. The appellant objected to leave being granted and the Court indicated it would hear argument and determine whether leave to amend should be given in the course of giving the full judgment.

The first respondent contended in the amended notices that his Honour erred, and the proceedings should have been dismissed, on the following bases:

(1) the appellant had, by his conduct, consented to his imprisonment;

(3) the warrant upon which the appellant was imprisoned was a valid warrant;

(4) the first respondent was not liable to any action by the appellant pursuant to sections 135, 136 and 137(a),(c) of the Justices Act as they then were;

(5) the broad role for immunity for judicial officers laid down in Sirros v Moore [1975] QB 118 protected the first respondent; and

(6) the first respondent was not a person who was active in promoting and causing the imprisonment and was not as a consequence liable to the appellant.

The first two grounds were in the original notices and the first respondent does not need leave to rely on them. The first respondent does, however, require the Court's leave to argue the remaining four. These grounds will be considered after I have dealt with the issues raised by the appellant.

Section 144 Justices Act 1902

Part VI of the Justices Act, which includes s 144, is introduced by the heading `Proceedings against justices'. At the relevant time, s 144 was in the following terms:

"144. If the plaintiff in any such action is entitled to recover and -

(a) proves the payment of any penalty or sum of money under the conviction or order as part of the damages he seeks to recover, or

(b) proves that he was imprisoned under the conviction or order and seeks to recover damages for such imprisonment,

(c) that he was actually guilty of the offence of which he was convicted, or

(d) that he was liable by law to pay the sum he was ordered to pay, and

(e) that he had undergone no greater punishment in the way of imprisonment than that assigned by law for the offence of which he was convicted, or for non-payment of the sum he was ordered to pay,

he shall not be entitled to recover the amount of the penalty or sum so paid by him, or any sum beyond the sum of two cents as damages for such imprisonment or any costs of suit."

Young J was of the opinion that the requirements of s 144 were satisfied, and thus held the appellant was only entitled to recover two cents. The appellant challenges his Honour's finding. As regards the first of the elements which must be proved, there is no question that the appellant was imprisoned under the order of Mr Cleary SM and pursuant to a warrant issued by the first respondent. This is the order referred to in s 144(b). It is also my understanding that no real challenge has been made to the proposition that the appellant was liable to pay the sum he was ordered to pay, namely costs of $5,000 arising from the criminal defamation proceedings. This order was not set aside and was not challenged either in these proceedings or in those before Lee J. It follows that s 144(d) is satisfied. The real dispute is whether s 144(e) is satisfied, that is, was it shown that the appellant had undergone no greater punishment in the way of imprisonment than that assigned by law for non-payment of the sum he was ordered to pay.

To resolve this question, it is necessary to go back to the decision of Lee J (see [1984] 1 NSWLR 449). His Honour held (at 460):

"I am of the opinion that s 87 can relate only to convictions and orders made in respect of offences punishable summarily and complaints and indictable offences dealt with summarily by consent and that it has no application to an order for costs under s 41A. Accordingly, the warrant issued by Mr Butterworth JP lacked statutory authority for its issue, and was thus issued without lawful authority with the consequence that the arrest and imprisonment of the plaintiff thereunder were unlawful."

It follows that, although the magistrate validly ordered Dr Spautz to pay costs or suffer 200 days imprisonment in default, because of a defect in the Act, no warrant for commitment could legally have been issued to enforce the order. Hence the imprisonment of the appellant was unlawful.

Young J concluded that even though the warrant should not have been issued the appellant was not in prison for any longer than he could have been imprisoned for non-payment of the ordered sum. Accordingly, his Honour held that s 144 applied and the damages were limited to two cents. The first respondent supports this approach to the section. He argues that the punishment "assigned by law" refers to the maximum period stated in the Act and Regulations, namely, the number of days of imprisonment which can be ordered for the default. According to this reasoning, the warrant is simply an execution mechanism and it matters not, for the purposes of s 144, that the first respondent was not entitled to order a term of imprisonment. It was enough that the term ordered was within the maximum provided for by the statute.

The opposing view, propounded by the appellant, is that the effect of Lee J's decision is that the appellant was never liable to imprisonment as a consequence of his failure to comply with Mr Cleary's order. Therefore, it was submitted, there was no imprisonment assigned by law and s 144(e) was not satisfied. In my opinion, this is the correct approach. It is true that s 41A of the Justices Act empowers a magistrate to make an order or imprisonment in default for non-payment of a costs order, and the term imposed by Mr Cleary was within the maximum allowed by statute. However, without the authority to issue a warrant and actually enforce the order, such a power is meaningless. There simply was no punishment by way of imprisonment assigned by law for non-payment of the sum the appellant was ordered to pay.

Section 144 is one of a number of sections in Part VI of the Justices Act which makes provision for proceedings against justices. In s135 and s136 it divides proceedings between those in which a justice is acting within jurisdiction and those in which he or she did not have, or exceeded his or her, jurisdiction. In the former case an action may be brought, as for a tort, but only if the act of the justice was done maliciously and without reasonable and probable cause.

Where a justice has acted without, or exceeded his or her, jurisdiction an action may be brought by a person "injured by such act or by any act done under any ... warrant issued by such justice" and it is not necessary to prove that the act was done maliciously and without reasonable and probable cause. However, in s136(3) a number of instances are set out in which actions shall not be brought, or brought until certain events have occurred. For instance, no action shall be brought for anything done under a conviction until after the conviction has been quashed (s136(a)). Similarly no action shall be brought for anything done under a "warrant issued by the justice to procure the appearance of a person" where the appearance has been followed by a conviction until that conviction has been quashed (s136(3)(b)). (My underlining)

Section 136 (3)(c) also deals with a warrant to procure a person's appearance and insofar as these are the only warrants dealt with in s136(3) that sub-section contains no prohibitions which are presently relevant.

Section 137 deals with four other cases in which an action may not be brought against a justice. First, the manner in which a discretion conferred on the justice by Statute is exercised is beyond challenge; secondly, an action may not be brought for anything done under a warrant on the ground of a defect in conviction or order where the conviction or order is confirmed on appeal; thirdly, where a justice has bona fide and without collusion granted a warrant of commitment he or she may not be sued if the warrant was issued consequent upon a defective conviction or order made by some other justice and, fourthly, where the warrant was granted bona fide and without collusion following a conviction or order made by another Justice without, or in excess of, jurisdiction.

In terms none of the provisions of s137 apply where the order was valid but the warrant was issued without jurisdiction. Section 138, which deals with orders which may be made by a court is not presently relevant, nor are ss140, 141 or 143 (ss139 and 142 were not in existence at the relevant date).

Section 144 must therefore be understood in the context that the action is not prohibited by the earlier provisions and, where its provisions are satisfied, it limits the plaintiff to nominal damages. In that context it would seem tolerably clear to me that where s144(e) speaks of "imprisonment ... assigned by law ... for non-payment of the sum he was ordered to pay" it encompasses only those situations where statutory provision is made for imprisonment where there has been a failure to pay a specific sum ordered to be paid. It could only be in that circumstance that it could be said that imprisonment has been assigned by law. Conversely where there is no statutory authority for imprisonment in the event a specific sum ordered to be paid is not paid, it cannot be said that imprisonment was assigned by law. In short a statutory provision authorising imprisonment for non-payment of debt A could not be said to constitute an authority for imprisonment for non-payment of debt B. There simply is no imprisonment "assigned by law for non payment of the amount the appellant was ordered to pay" and s144 does not apply. This conclusion is based on the wording of the section.

Because, however, the attention of the court was directed to several English and Australian authorities on sections equivalent to s144 from which both parties sought to draw comfort, it is desirable that I refer to them.

In R v Waltham Forest Justices, Ex parte Solanke [1986] QB 983, the applicant was ordered by the High Court to make weekly payments to his former wife. She applied to have the order registered in the magistrate's court but, due to an administrative oversight, the order was not registered. When the applicant defaulted in payment, the wife brought the matter before the Justices who, believing that the periodical payments order had been registered, found that the default was due to the applicant's wilful refusal or culpable neglect. A warrant of commitment against the applicant was issued and he was committed to prison for 42 days. The applicant served the term and subsequently applied for judicial review to quash the warrant and for damages against the Justices. It was accepted that, the order not having been registered, the Justices did not have jurisdiction to issue the warrant. However, the Court held that the protection afforded by s52 of the Justices of the Peace Act 1979 (in similar terms to s144) applied to acts done in excess of jurisdiction or without jurisdiction. The applicant was liable to pay the sum, and as the term of imprisonment was not greater than that assigned by law for non-payment of such a sum, s52 applied to limit the damages payable by the justices. The case is clearly distinguishable upon the ground that the imprisonment undergone was in fact the imprisonment assigned by law for the specific default in question. Section 144 was, in my opinion, designed specifically to deal with cases of procedural irregularity such as there occurred.

Reference was also made to R v Manchester City Magistrates' Court, Ex parte Davies [1989] 1 QB 631. In that case, the applicant received a rate demand for shop premises of which he was the tenant. He was not able to pay the full amount and the rating authority, having issued a distress warrant, applied to the justices for a committal order. The justices found the applicant guilty of culpable neglect in failing to pay the rates demanded and committed him to prison for 90 days. The applicant challenged the warrant of commitment.

The General Rates Act 1967 provided that before a commitment warrant, as opposed to a distress warrant, could be issued for non-payment of rates, the justices had to find on an inquiry that failure to pay the rates was due to either wilful refusal or culpable neglect. If they made such a finding, they had the additional power to issue a commitment warrant. No proper inquiry was held, with the result that the only punishment assigned by law was the seizure of the applicant's goods under a distress warrant. The applicant had undergone a greater punishment than assigned by law and the justices were not entitled to the protection afforded by s 52.

In this case the justices had failed to satisfy a condition precedent to the issue of a commitment warrant (viz, the holding of an inquiry). Consequently there was no jurisdiction to issue one. The case is analogous with the present one and is to be distinguished from procedural irregularity.

In Smith v O'Brien [1862] 1 W & W (L) 386, the plaintiff was fined [sterling]20 and ordered to pay [sterling]2 2_s_ in costs for an assault. No order in default was made by the Bench, but the clerk of petty sessions, in filling up the conviction, added a sentence of one month imprisonment in default. Distress was issued and returned no effects and another Bench issued a warrant of commitment, relying on the sentence improperly added by the clerk to the record of conviction. The plaintiff was committed to two months imprisonment and after serving a few days, paid the fine. In an action brought by the plaintiff for the imprisonment, the trial judge directed the jury that if they believed the plaintiff was guilty of the offence, and that he had suffered no greater imprisonment than by law could be inflicted upon him, the payment of 2_d_ by the defendant (one of the magistrates) was sufficient compensation. The Court on appeal held that the imprisonment "assigned by law" is the maximum amount of imprisonment which the plaintiff might have been subjected to. The omission of the magistrates to order, at the time of imposing the fine, the amount of imprisonment in default of payment, and the subsequent infliction of a more severe sentence than had been entered by the clerk, did not mean the plaintiff had suffered a punishment greater than that assigned by law as the plaintiff might have been subjected to imprisonment for up to 3 months. The Justices were therefore entitled to have the damages payable limited to 2_d._

In Gerard v Hope [1965] TASStRp 1; [1965] Tas SR 15, the plaintiff was convicted, in his absence, before a police magistrate of failing to lodge an income tax return, and was fined [sterling]3 with costs and ordered to lodge a return within 30 days. These orders were reflected in the court register and a certificate of conviction, but a clerk in the office of the Clerk of Petty Sessions endorsed the order adding imprisonment for 14 days in default. The plaintiff had an excuse for his failure to lodge the return and came to an arrangement with the Taxation Department, but a notification of the arrangement sent to the court was mislaid. A warrant of commitment was issued by the same clerk, the warrant was executed and the plaintiff was imprisoned. In the subsequent action for false imprisonment, Crisp J held that s133 of the Justices Act 1959 (similar to s144) did not afford a defence. The plaintiff was entitled to succeed because the imprisonment ordered was with "hard labour", which was a punishment greater than that assigned by law for the offence of which he was convicted.

In the more recent case of Clarke v Burton [1994] 3 Tas SR 370, the plaintiff brought an action against a magistrate claiming damages for false imprisonment. The plaintiff had been convicted in the Court of Petty Sessions of various offences, all but one of which carried pecuniary penalties. Only one complaint carried a penalty of imprisonment. The plaintiff failed to pay the ordered fines and costs, and the defendant issued warrants of commitments in respect of each of the imposed fines and costs. The plaintiff was held in custody for 44 days and then brought an action for false imprisonment. The Full Court determined, as a preliminary point, that s133 Justices Act did not operate to protect the defendant. In the course of his judgment Wright J said (at 376) that:

"In my opinion the facts of any individual case must be examined to see whether it can properly be said that in respect of any particular plaintiff there existed a potential liability to be imprisoned. If there was no such potential, and there never has been, it cannot be said that imprisonment is a punishment assigned by law either in respect of the offence of which he or she was convicted or in respect of non-payment of a sum he or she was ordered to pay."

In my opinion, the above cases, not all of which are entirely consistent, demonstrate that the purpose of s144 and its equivalents is to afford protection to justices in circumstances where they have jurisdiction to impose a term of imprisonment, but because of a procedural irregularity they act outside their jurisdiction so that the imprisonment was unlawful. Examples are Waltham Forest Justices, where the irregularity was a failure to register the order, and Smith v O'Brien where the mistake was that of a clerk. The imprisonments in these cases were unlawful, but the punishments were no greater than that assigned by law. In Gerard v Hope, a mistake had been made by a clerk, but because hard labour had been imposed for the term of the imprisonment, the punishment was greater than that assigned by law. The judgment makes clear that if not for the hard labour aspect of the sentence, the damages would have been limited.

In the other cases, protection was not afforded to the justices because punishment by way of imprisonment was not assigned by law for the offence of which the plaintiff was convicted or for non-payment of the sum ordered to be paid. In Manchester City Magistrates' Court, the failure to comply with a condition precedent meant the only punishment assigned by law was seizure of goods by distress warrant, while in Clarke v Burton, the statute, which the judges thought to be defectively drafted, did not authorise imprisonment in the circumstances.

The critical distinction which divides them is that in those where the section did not apply there was no power to order imprisonment of the plaintiff, while in the other cases the power existed but, because of a procedural irregularity, had not been properly exercised. The present case falls into the first category and s144 does not apply.

I have earlier pointed out that his Honour awarded general damages of $5,600, calculated on the basis of $100 a day damages allowed for 56 days imprisonment, aggravated damages of $5,000 and economic loss amounting to $200, from which his Honour deducted a set off of $1400, being $25 per day for 56 days upon the ground that the period during which the appellant was in prison reduced the amount of the costs which he had to pay. Questions arise as to the general damages, aggravated damages and the set off.

His Honour, as it seems to me, accepted the appellant's evidence. He did so in terms when dealing with the appellant's evidence that he was flabbergasted when he was taken into custody. But the words used by his Honour and his express statement that there was nothing in the demeanour of the appellant that would make his Honour doubt the appellant's evidence point strongly in the direction that his Honour accepted that evidence, at least on issues going to damages. His Honour also referred to a number of factors which, according to the appellant, should be taken into account in assessing the general damages. They were:

(a) a peremptory arrest without warning or opportunity to set the plaintiff's [appellant's] affairs in order;

(b) false information in the warrant branding the plaintiff as a criminal convicted of criminal defamation;

(c) finger-printing, handcuffing, and the taking of the plaintiff's personal possessions;

(d) incarceration within a police lock-up at Wallsend;

(e) temporary loss of ability to speak or otherwise communicate;

(f) being put in a police paddy wagon and being delivered to a maximum security prison;

(g) solitary confinement at Maitland prison for 7 days;

(h) visual and sensory deprivation for all but a few hours of each day;

(j) treating the plaintiff without distinction from convicted felons.

Even if one were to limit the matters which the court should have taken into account in assessing damages to those that I have just mentioned, it is plain to me that his Honour's provisional award for general damages is so far outside the permissible range of compensatory damages as to be manifestly inadequate. Such a conclusion means, in accordance with the substance of the principles in Moran v McMahon (1985) 3 NSWLR 700, that upon the setting aside of the damages of 2cents his Honour's assessment should not be substituted. In Moran reference is made to the decision in Planet Fisheries Pty Limited v La Rosa [1968] HCA 62; (1968) 119 CLR 118, and McHugh JA said, at 726, that under the principles there expressed neither trial judges nor appellate courts are informed of the awards of damages for non-economic loss in comparable cases. The decision in Planet Fisheries has, if I may say so with respect, created a deal of disquiet in courts below the High Court for many years. Be that as it may, the acceptance by the majority in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 444 of the need for appellate courts to ensure a rational relationship between the scale of values applying to awards of damages in defamation cases on the one hand and personal injury cases on the other and the acceptability of providing basic information on the general damages component of personal injury awards to jurors in defamation trials is, at the very least, indicative of a very different approach. In Carson an attack was made by the appellant on a comparison drawn by Kirby P in this Court between damages in defamation cases and an award of damages in a personal injuries case of significant dimension. The majority declined to grant a new trial on the basis that Kirby P had approached the matter irregularly and expressly stated that Coyne v Citizens' Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 did not prohibit an appellate court, deliberating on the quantum of a defamation verdict, from considering verdicts in personal injury cases for the purpose of comparison.

It seems to me that if it is permissible to compare awards of damages in defamation cases with those in personal injury cases, equally it must be permissible to have regard to awards approved by this Court in other defamation cases or, as here, other false imprisonment cases. Two of the latter category have recently been before this Court. In McDonald v Coles Myer Limited (12 September 1995, unreported) the Court increased an award of general damages in circumstances in which the plaintiff had never been incarcerated in a prison to $25,000. In Wooley v Phillips (Court of Appeal, 26 August 1996, unreported) the plaintiff complained of an assault, wrongful arrest and false imprisonment. She had not spent any time in a prison. Notwithstanding, Judge Bell awarded her $30,000 damages and this Court rejected the plaintiff's complaint that the damages were inadequate. Obviously the circumstances in each of those cases bore little resemblance to the present one but, as it seems to me, reference to two cases in which neither plaintiff was incarcerated in a prison and yet received general damages far greater than those awarded to the appellant, supports my conclusion that the provisional award in this case bore no rational relationship to the injury (the losses may be a more sensible description) suffered by the appellant. It follows that this Court should disregard his Honour's assessment.

The alternative courses available to this Court are to remit the proceedings for assessment of the damages or for this Court itself to carry out that assessment. The latter course would not be appropriate if any serious question of credibility was involved but as I have already pointed out his Honour could find nothing in what the appellant said, or in his demeanour, which would have led his Honour not to accept his evidence. Although his Honour's acceptance of the appellant's evidence was made in relation to a particular aspect of the evidence, it seems to me that in its context it had a wider effect. In these circumstances the court should, in my respectful opinion, reassess the damages.

According to the appellant's written submissions there were a number of other matters which his Honour should have taken into account in assessing the general damages. They were:

"a. opposition, through their legal representatives, to the relief sought in the Declaratory proceedings ultimately decided by Lee J;

b. subjection of Dr Spautz's liberty to the constraints of a bail order;

c. lodging an appeal from Lee J's decision and persevering with it until 14.11.1985 some few days before the appeal was due to be heard;

d. reserving any right to appeal from Lee J's decision on 20.7.1992 at the hearing of these proceedings;

e. pleading section 144 of the Justices Act as a Defence and as an Amended Defence served in July 1992 and therein asserting that contemptuous damages would be appropriate compensation for the trespass and continuing trespass committed upon Dr Spautz since 25.10.1983."

Also relied upon by the appellant as demonstrating a `lack of contrition' were the "constant clear unequivocal assertions by Mr Butterworth's Counsel to his Honour that `Dr Spautz is a convict, a contumelious contemnor and a person who deserves to be imprisoned'". In this regard, the Court was referred by the appellant to extracts from the respondent's written submissions to Young J which allegedly increased the `hurt' suffered by the appellant. It is not necessary to repeat those statements here. It is sufficient to note that Counsel for the respondent did not deny the making of the statements, but rather justified them as being made in the particular context of the relevant legislation and the facts in the case. The final matter relied on was the fact that the respondent's reservation of a right to appeal from Lee J's decision and the attempt to re-litigate the dismissed appeal in that matter as part of the current appeal (a matter to which I shall later return), meant the prospect theoretically remained open that Dr Spautz could be returned to prison for 144 days.

A complicating factor is that in theory some of these matters might properly be considered in an award of aggravated damages. His Honour was of opinion that an award of that nature should be made but because his expression of opinion on this aspect of the case was provisional, in the sense that it could only operate if his Honour was in error in his major finding, his conclusion has no force in law. The question, however, does arise whether the appellant's claim to be entitled to aggravated damages is a good one. In order to examine this question and the relationship between general compensatory damages and aggravated compensatory damages it is useful to refer to some general principles concerning the awarding of ordinary, and aggravated, compensatory damages.

McGregor on Damages (15th Edn, 1988) at para 1619 says:

"The details of how damages are worked out in false imprisonment are few: generally it is not a pecuniary loss but a loss of dignity and the like, and is left much to the jury's or judge's discretion. The principal heads of damage would appear to be the injury to liberty, ie. the loss of time considered primarily from a non-pecuniary viewpoint, and the injury to feelings, ie. the indignity, mental suffering, disgrace and humiliation, with any attendant loss of social status. This will all be included in the general damages which are usually awarded in these cases: no breakdown appears in the cases."

A difficulty in the assessment of damages arises because the distinction between ordinary and aggravated compensatory damages may become blurred in defamation and false imprisonment cases. I have previously discussed the relevant principles in the context of defamation in Australian Consolidated Press Limited v Ettinghausen (NSW Court of Appeal, 13 October 1993, unreported), and I returned to the topic in McDonald, which was, as I have already said, another case involving wrongful arrest and false imprisonment. As indicated in both those cases, the passage I find most useful in explaining the complexities in this area is to be found in the speech of Lord Diplock in Cassell & Co Ltd v Broome & Anor [1972] UKHL 3; [1972] AC 1027 at 1124, where his Lordship said:

"The three heads under which damages are recoverable for those torts for which damages are at large are classified under three heads: (1) compensation for harm caused to the plaintiff by the wrongful physical act of the defendant in respect of which the action is brought. In addition to any pecuniary loss specifically proved the assessment of this compensation may itself involve putting a money value upon physical hurt, as in assault, upon curtailment of liberty, as in false imprisonment or malicious prosecution, upon injury to reputation, as in defamation, false imprisonment and malicious prosecution, upon inconvenience or disturbance of the event tenor of life, as in many torts, including intimidation. (2) Additional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or the motive for which the defendant did it. This Lord Devlin calls `aggravated damages'. (3) Punishment of the defendant for his anti-social behaviour to the plaintiff. This Lord Devlin calls `exemplary damages'. ...

The tort of defamation, to which Lord Devlin made only a passing reference in Rookes v Barnard [1964] UKHL 1; [1964] AC 1129, has special characteristics which may make it difficult to allocate compensatory damages between head (1) and head (2). The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. A solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the damages under head (1) itself even in cases in which there are no grounds for `aggravated damages' under head (2). Again the harm done by the publication for which damages are recoverable under head (1) does not come to an end when publication is made. As Lord Atkin said in Ley v Hamilton 153 LT 384, at 386: `It is impossible to track the scandal, to know what quarters the poison may reach.' So long as its withdrawal is not communicated to all those whom it has reached it may continue to spread I venture to think that this is the rationale of the undoubted rule that persistence by the defendant in a plea of justification or a repetition of the original libel by him at the trial can increase the damages. By doing so he prolongs the period in which the damage from the original publication continues to spread and by giving to it further publicity at the trial, as in Ley v Hamilton, extends the quarters that the poison reaches. The defendant's conduct between the date of publication and the conclusion of the trial may thus increase the damages under head (1). In this sense it may be said to `aggravate' the damages recoverable as, conversely, the publication of an apology may `mitigate' them. But this is not `aggravated damages' in the sense that that expression was used by Lord Devlin in head (2). On the other hand the defendant's conduct after the publication may also afford cogent evidence of his malice in the original publication of the libel and thus evidence upon which `aggravated damages' may be awarded under head (2) in addition to damages under head (1). Although considerations such as these may blur the boundary between compensatory damages under head (1) and compensatory damages under head (2) in the case of defamation, they do not effect the clear distinction between the concept of compensatory damages and the concept of exemplary damages under head (3)."

On the topic of aggravated damages for false imprisonment, McGregor on Damages (para 1623) has this to say:

"The manner in which the false imprisonment is effected may lead to the aggravation or mitigation of the damage, and hence of the damages. The authorities illustrate in particular the general principle stated by Lawrence LJ in Walter v Alltools (1944) 61 TLR 39, at 40 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. 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." That case, and the earlier one of Warwick v Foulkes [1844] EngR 144; (1844) 12 M & W 507 as interpreted therein, establish that, where the false imprisonment has been brought about by the defendant preferring a charge against the plaintiff, any evidence tending to show that the defendant is persevering in the charge is evidence which may be given for the purpose of aggravating the damages. By implication they establish the converse proposition that the defendant is entitled to give evidence in mitigation of damages tending to show that he has withdrawn the charge or has apologised for having made it."

However, in para 1623A the author submits that an unsuccessful plea by the defendant that the plaintiff is guilty of the offence charged against him by the defendant should not lead to an aggravation of the damages unless it is shown that the defendant made the charge mala fide. This statement accords with the following passage in Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497, at 514:

"It was 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 & 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."

Triggell v Pheeney has been interpreted by courts in New South Wales as permitting conduct by the defendant subsequent to publication to be taken into consideration on the issue of `aggravated damages' in defamation cases only if that conduct was found by the jury to lack bona fides or otherwise to be improper or unjustifiable. Whilst on first reading Triggell may appear inconsistent with aspects of the statement by Lord Diplock quoted above, reconciliation is possible when one appreciates that in Triggell the High Court was referring to `aggravated damages' in the sense of head (2), not in the sense of `increasing' the general compensatory damages otherwise available under head (1).

This is made particularly clear by Toohey J, who gave the majority judgment, in Coyne v Citizens Finance Ltd [1991] HCA 10; (1991) 172 CLR 211, when he said (at 237):

"It is not the case that every successful defendant must face the prospect of damages being increased, simply because the defendant has elected to defend the action. 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. An early withdrawal of the defamatory statement will ordinarily serve to reduce the harm suffered by the plaintiff; persistence in seeking to justify the statement may increase the scope of the publication and the effect on those who read it: Herald & Weekly Times Ltd v McGregor (p 263). I take this to be the sense in which Lord Diplock suggested that `persistence by the defendant in a plea of justification or a repetition of the original libel by him at the trial can increase the damages': Broome v Cassell & Co. 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."

To similar effect were comments by McHugh J (at 241):

"Triggell v Pheeney is not to be taken as modifying in any way the principle that in a defamation action the jury are `entitled to take into consideration the mode and extent of the publication, that the defamatory statement was never retracted, that no apology was ever offered to the [plaintiff], and that the statement had been persisted in to the end; because all these circumstances might in the opinion of the jury increase the area of publication and the effect of the libel on those who had read it or who would thereafter read it, might extend its vitality and capability of causing injury to the plaintiff."

In McDonald, following the quotation of the above passages, I expressed the view that what was said in Coyne should be regarded as the law applicable to both defamation and wrongful arrest and false imprisonment. The necessary conclusion is that where a plaintiff is entitled to compensatory damages for wrongful arrest or false imprisonment, it is proper for the Court, in assessing ordinary compensatory damages, to take into account 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. Such matters might include the absence of apology and the reaffirmation of the truth of the matters. However, for a plaintiff to be entitled to aggravated damages, he or she must show that the conduct of the defendant was neither bona fides nor justifiable.

Applying those principles to the present case, I would conclude that the additional matters relied on by the appellant are not grounds which may be taken into account by the Court in considering an award of aggravated damages absent any evidence of mala fides or lack of justifiability. However, they may be taken into account in assessing an award of general compensatory damages. Matters such as the indignity, mental suffering, disgrace and humiliation suffered by the appellant as a result of the false imprisonment are to be included in general damages. Any conduct of the first respondent which may have had the effect of increasing the injury to the appellant's feelings is also to be included in the general compensatory damages.

In the present case counsel for the appellant did not suggest there was any evidence that the first respondent's conduct lacked bona fides or was improper or unjustifiable. It follows that no award can be made for aggravated damages. On the other hand all of the matters relied on by the appellant as increasing the hurt suffered as a result of the false imprisonment, including the conduct which I have identified, can, and should be, taken into account in the award of ordinary compensatory damages that this Court should make.

Having regard to those factors and the fact that the appellant had no criminal record when he was unceremoniously cast into a prison in which he was to remain for 56 days it seems to me that an appropriate award of general damages is $75,000 (to include the sum of $200 for economic loss).

There remains for consideration the set off. The amount involved is minimal. Nonetheless, there was no legal basis for this reduction of the damages. The verdict was recovered against the first respondent who would not, on any view, have been the recipient of any costs which may, in theory, have been saved. No set off should be allowed.

Of the six grounds specified in the Amended Notice of Cross-Appeal and Amended Notice of Contention, the issues of consent and public policy were included in the original notices and do not require leave to be relied on by the respondents. The remaining four matters are new and require leave.

In the court below, the first respondent submitted that the appellant knew that by failing to pay the costs ordered a warrant could issue and that he could be imprisoned unless he took steps to seek time to pay the amount owing. Further, it was argued that the appellant was in breach of the court order, and knew he was in breach, but did not question the validity of the warrant until after he was in custody. The inference sought to be drawn was that the appellant never intended to pay the costs and that this was a deliberate decision on his part. Therefore, it was submitted, the principle of volenti non fit injuria should apply to the appellant's acts.

Young J accepted the appellant's submission that the evidence did not justify any finding that there was a deliberate decision on the appellant's part not to pay the costs, and therefore found that the respondents had failed to satisfy the onus of proving the defence of consent. His Honour concluded, "I cannot see how a person who goes to a police station to enquire about a warrant knowing he hasn't paid the fine can be said to have consented to being arrested and gaoled".

In his written submissions, the first respondent argued that the matters amounting to consent by the appellant included bringing the original criminal defamation proceedings and accepting the risk he could lose and be ordered to pay costs, failing to pay costs, failing take any steps to seek a variation or stay or seek time to pay, and "consciously and deliberately flouting the court order". The appellant submitted in response that the matters now relied on as constituting consent were not put to Young J and that the defence now hinged on an assertion that the appellant had consciously and deliberately decided never to pay the costs knowing that if he did not he would be imprisoned. Although phrased somewhat differently, in my opinion the matters relied on as indicating consent are essentially the same.

In my opinion the first respondent's submissions should be rejected upon the basis that there is simply no evidence upon which the court could infer that the appellant consented to his own incarceration. None of the matters relied on is capable of supporting such an inference. Indeed in my view the evidence points strongly in the direction that the appellant bitterly opposed his imprisonment.

The respondents, relying on principles which provide defences to judicial officers, argued that the proceedings should have been dismissed on the ground of public policy. The public policy said to be applicable is that directed at preventing persons from benefiting from their own crimes. Reference was made to Public Trustee v Evans (1985) 2 NSWLR 188, where Young J quoted from the judgment of Fry LJ in Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147. In Cleaver, the English Court of Appeal held that whilst a person could not benefit from her own crime, if a life insurance policy is held by a husband with his wife as nominated beneficiary and the wife murders the husband, the insurance company still has to pay the executors of the husband who should hold it for the benefit of the estate.

Young J was of the opinion that to apply a similar principle to the present situation, which involves non-compliance with an order for costs made against an informant by a magistrate, as opposed to murder, was a "leap" he was not prepared to make. I agree. It could hardly be said that an entitlement to damages for false imprisonment constitutes a `benefit' arising from the `crime' of failing to comply with a costs order. I would add the observation that the provisions of Pt VI of the Justices Act would tend to deny the availability of any general defence based on public policy.

The third ground in the amended notices (the first of the grounds for which leave is necessary) is that the proceedings should have been dismissed on the basis that the warrant upon which the appellant was imprisoned was a valid warrant. By this ground the first respondent seeks to challenge the correctness of the decision of Lee J in Spautz v Dempsey (1984) 1 NSWLR 449. In the proceedings before Young J, the respondents sought to reserve their position but did not argue that Lee J had been in error.

The difficulty with the submission is that the first respondent was a party to the proceedings before Lee J and although an appeal was brought from that decision it was dismissed by consent on 6 November 1985. In these circumstances the first respondent is, in my opinion, estopped from now seeking to challenge the decision given in proceedings in which he was a party. The issue of the validity of the warrant was determined by Lee J and, the judgment not being reversed on appeal, the principle of res judicata applies to prevent the first respondent from seeking once again to litigate that issue. The relevant principle was stated in concise terms by Dixon J in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, at 531, and adopted by the majority in Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45; (1981) 147 CLR 589, at 597, as being:

"A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies".

In Thoday v Thoday (1964) P 181, at 197-8 Diplock LJ explained that estoppel per rem judicatam is a `generic' term including both strict res judicata and issue estoppel. It is unnecessary in the present case to refine my conclusion beyond saying that the first respondent is estopped by Lee J's judgment from now contending that the warrant was valid.

Counsel for the first respondent informed the Court that in the proceedings before Lee J, the first respondent made a submitting appearance in accordance with the way Justices, in similar circumstances, have always submitted to claims for declaratory or prerogative relief. It followed, he argued, that it would be improper to consider him a `party' to those proceedings, at least for the purposes of res judicata. No authority was cited in support of this bold proposition. In my opinion, the fact that the first respondent made a submitting appearance does not change the legal position that he was a party to the decision made by Lee J and consented to the dismissal of an appeal from that decision. He was a party and is bound by the decision.

The second basis on which the first respondent sought to escape the application of res judicata was to argue that the issue before Lee J was not capable of supporting an estoppel by judgment. The apparent reason why this was so was that his Honour simply made a declaration. The first respondent submitted that the seeking of a declaration is different from bringing proceedings on a cause of action and therefore the principle of res judicata does not apply to prevent the respondents from now challenging Lee J's decision. In my opinion, this submission has no substance.

Sections 135, 136, 137 of the Justices Act 1902

Ground 4 of the Amended Notice of Cross-appeal and Notice of Contention raises defences based on ss 135, 136 and 137 of the Justices Act. These defences were litigated before Young J and involved no additional factual material. In seeking leave to amend the notices, Counsel for the respondents said that the issues had been left out inadvertently and that the appellant received notice of the amendments over a week before the hearing. The Court allowed Counsel for the respondents to address on these grounds and indicated it would rule whether they could be argued in the final judgment. Although I have earlier indicated my opinion that these sections do not apply, I will more fully consider the merits of each of the defences in turn.

At the relevant time, the sections were in the following terms:

135. (1) Every action brought against a Justice for an Act done by him in the execution of his duty as a Justice with respect to a matter within his jurisdiction as a Justice shall be an action as for a tort.

(2) An action shall not lie against a Justice for any such act referred to in subsection (1) unless the act was done maliciously and without reasonable and probable cause.

136. (1) An action against a Justice for any act done by him in a matter of which by law he has not jurisdiction, or in which he has exceeded his jurisdiction, may be maintained by any person injured by such act or by any act done under any conviction or order made, or any warrant issued by such Justice in such matter, in the same case as such an action might have been maintained before the passing of this Act.

(2) In such an action it shall not be necessary to allege that the act was done maliciously and without reasonable and probable cause.

(a) for anything done under such conviction or order until after such conviction or order has been quashed upon appeal or upon application to the Supreme Court;

(b) for anything done under any warrant issued by the Justice to procure the appearance of such person if such warrant has been followed by a conviction or order in the same matter until after such conviction or order has been quashed on appeal or on application to the Supreme Court;

(c) for anything done under any warrant issued by the Justice to procure the appearance of such person if -

(i) such warrant has not been followed by a conviction

(ii) such warrant was upon an information for an alleged

previously to such warrant and duly served, and such

137. No action shall be brought against a Justice -

(a) for or by reason of the manner in which he has exercised his discretion in the execution of a discretionary power conferred on him by statute;

(b) for anything done under any warrant of commitment on the ground of any defect in the conviction or order on which it was founded if, either before or after the granting of such warrant, such conviction or order has been confirmed upon appeal;

(c) by reason of any defect in a conviction or order made by some other Justice or Justices on which he has bona fide and without collusion granted a warrant of commitment;

(d) by reason of any want of jurisdiction in any other Justice or Justices by whom a conviction or order has been made on which he has bona fide and without collusion granted a warrant of commitment;

Section 135 essentially provides that proceedings brought against a Justice for an act done by him in the execution of his duty shall not lie unless it was done maliciously and without reasonable and proper cause. In his judgment, the learned trial judge noted that there was no pleading that Mr Butterworth was activated by malice, nor was there any material to establish maliciousness or that the act was done without reasonable and proper care. The crucial question, was therefore whether in issuing the committal warrant against the appellant, Mr Butterworth was acting "within his jurisdiction". If the first respondent could establish that the act was within his jurisdiction, then, as no maliciousness or lack of reasonable and proper care had been pleaded, s 135 would provide a defence. If the act was not found to be within his jurisdiction, then s 135 was irrelevant and could not be relied on as a defence.

Young J considered in detail existing Australian and English authority on the issue, namely, Ex parte Hulin; Re Gillespie (1965) 65 SR (NSW) 31; Palmer v Crone [1927] 1 KB 804; Sammy-Joe v GPO [1966] 3 All ER 924; Agnew v Johnson (1877) 47 LJMC 67; Cook v Leonard [1827] EngR 40; (1827) 108 ER 481; and Lane v Ward [1935] SAStRp 2; [1935] SASR 111, and concluded (at 16):

"Having considered the authorities, it seems to me that a magistrate acts within his jurisdiction under s 135 where, on the facts as he or she was entitled to find them, in the particular case in question the magistrate bona fide believed that the matter was within jurisdiction and had reasonable grounds for so believing. The mere fact that a matter was within the ordinary course of the magistrate's ordinary work will not be sufficient though this factor will usually assist one finding a proper belief and perhaps reasonable grounds as well."

His Honour was of the opinion that the onus of proving that the matter is within jurisdiction is on the magistrate. He then concluded that although there was some difficulty because there was no evidence as to what Mr Butterworth considered, the mere fact that he may have acted on a request from the solicitor for Professor Williams and had regard to what the stipendiary magistrate had ordered was not enough to show that Mr Butterworth acted within his jurisdiction.

It does not seem to me, with respect, that this is the correct approach to take. In my opinion, s 135 is directed at providing protection for justices for errors made in the exercise of their jurisdiction and not for errors made in excess of jurisdiction. In the latter case, the justice defending the action must look to the protection afforded by s 136. If the justice acts in excess of jurisdiction, s 135 is simply inapplicable. I fail to see how the justice's subjective belief as to whether the matter was within his or her jurisdiction, and whether he or she had reasonable grounds for so believing, is relevant to the inquiry.

This approach is supported by authority referred to by Young J in his judgment in the present case. In Agnew v Jobson (1877) 47 LJMC 67, the plaintiff had been arrested for the offence of concealing the birth of an illegitimate child. The defendant magistrate ordered a medical examination. It was admitted at trial that the magistrate had no common law or statutory right to order the examination, but it was also admitted that the magistrate bona fide believed that he did have authority. Lopes J held that the magistrate was not protected because there was a total absence of any authority for him to order the examination and that, even though he bona fide believed he had authority, there was nothing on which to ground such a belief.

To similar effect is Gerard v Hope [1965] TASStRp 1; [1965] Tas SR 15, a case to which Young J did not refer on this issue. One of the questions for the court in Gerard was whether s 126(1) of the Justices Act 1959 (Tas) (which is in similar terms to s 135(1) of the NSW Act) provided the justice with a defence. Crisp J (at 55) referred to the argument of the defendant justice that although the act complained of may not expressly be within jurisdiction, it will suffice and gain the protection of the statute if there was a "general jurisdiction" over the subject matter, ie. if it were the kind of matter in relation to which a justice might as a matter of general practice be expected to have jurisdiction. His Honour rejected the argument, saying that a "matter within his jurisdiction" means within his actual jurisdiction (at 56). The general import of Crisp J's decision was that where a justice is seized of the subject matter, he does not exceed jurisdiction because he acts erroneously as to a matter of law or of fact. But where he is "assuming to do something which the Act under which he is proceeding could by no possibility justify", then s 126 [s 135] does not apply.

In summary, it is my view that in deciding whether s 135 applies, a court must consider whether the justice in the particular case acted within his or her jurisdiction. This inquiry is resolved by looking at the subject matter of the act complained of and asking whether the relevant statute gave the justice jurisdiction to act as he or she did. It is not sufficient that the justice have a general jurisdiction over the subject matter, or that the matter be of a kind in relation to which a justice might as a matter of general practice be expected to have jurisdiction. The Court must ask whether the justice had jurisdiction to do the particular act complained of. Where the justice does have jurisdiction over the subject matter, informality in its exercise which may serve to vitiate the proceedings will not deprive the justice of jurisdiction (see Gerard v Hope at 56).

Counsel for the first respondent in the present case submitted that to establish that the first respondent's act was done "within his jurisdiction", it was enough that justices have jurisdiction in certain areas to issue warrants of commitment, namely by virtue of s 87 and Div 2 of Pt 4(2) of the Justices Act. In my opinion, this submission cannot be correct. The above discussion makes clear that the justice must have jurisdiction to do the particular act complained of. The first respondent had no power to issue a s 41A commitment warrant for default imprisonment for unpaid costs and is not entitled to the protection of s 135.

Turning now to s 136. Because of the difficulties which have arisen in the present case in interpreting the section, I shall set out again the subsections relied upon.

136. (1) An action against a Justice for any act done by him in a matter of which by law he has not jurisdiction, or in which he has exceeded his jurisdiction, may be maintained by any person injured by such act or by any act done under any conviction or order made, or any warrant issued by such Justice in such matter, in the same case as such an action might have been maintained before the passing of this Act.

(a) for anything done under such conviction or order until after such conviction or order has been quashed upon appeal or upon application to the Supreme Court;

(b) for anything done under any warrant issued by the Justice to procure the appearance of such person if such warrant has been followed by a conviction or order in the same matter until after such conviction or order has been quashed on appeal or on application to the Supreme Court;

(c) for anything done under any warrant issued by the Justice to procure the appearance of such person ..."

It will be seen that under this provision an action may, subject to sub-s(3), be taken against a justice who has acted without, or in excess of, jurisdiction in the circumstances that would have enabled action to be taken before the passing of the Justices Act by any person:

(1) injured by the unauthorised (in the sense of without jurisdiction) act of the justice or;

(2) injured by any act done under any unauthorised conviction or order; or

By virtue of sub-s (3) actions may not be brought in certain circumstances until stipulated conditions have been satisfied. It is, however, only sub-s (3)(a) which could possibly be relevant as the later sub-sections deal only with warrants to procure the appearance of a person - warrants which are not in question here. But that sub-section (i.e. (3)(a)) is also not relevant as it does not address a situation in which it is the warrant itself, rather than the order which grounds the issue of the warrant, which was issued without jurisdiction.

In these circumstances none of the provisions of s 136(3) provides any bar to the maintenance of the present action. The power granted by s 136(1) is not relevantly qualified by s 136(3).

I should not leave this aspect of the appeal without referring to the first respondent's contention that the warrant which he issued was issued "under such conviction or order" within the meaning of that phrase in s 136(3)(a). I do not think that this could be correct.

As I have pointed out, s 136(1) enables an action to be taken against a justice who has acted without, or in excess of, jurisdiction. The sub-section also defines the range of persons who may bring such an action in terms which make it clear that the sub-section entitles persons who are injured by the act of the justice, or by any act done under any conviction or order made by the justice, to bring proceedings. Sub-section 3(a) then imposes a restriction on proceedings brought against a justice in respect of anything done under any conviction or order made by the justice. That restriction prohibits the bringing of the proceedings until the conviction or order (made by the justice) has been quashed.

The important point is that the action contemplated by the section is one against a justice for anything done under a conviction or order made by him or her without or in excess of jurisdiction. Here the action is not against the justice for something done under "such" conviction or order (that is a conviction or order made by a justice without jurisdiction) but is brought against the justice for his own act in issuing a warrant when he had no jurisdiction to do so.

If this is correct it would follow that the section does not cover an unauthorised warrant of commitment issued pursuant to a valid order. If it was intended to cover such a warrant s 136(3) would, consistently with the structure of that sub-section, presumably have set out a condition that an action could not be maintained until the warrant was set aside. The absence of such a provision fortifies me in my belief that s 136(3) simply does not deal with the factual circumstance under consideration.

The respondents also sought to rely on s 137(a), which prevents actions being brought against a Justice for, or by reason of, the manner in which he has exercised a discretion conferred on him by statute. Young J did not consider that para (a) assisted the first respondent for two reasons. Firstly, there was no evidence at all that he actually exercised any discretion. Secondly, his Honour found there was authority in respect of the 1848 Act, which preceded the 1902 Act, that the protection under s 137 does not apply where the justice proceeds without authority (R v Great Yarmouth Justices (1850) 4 New Sess Cas 313; 14 JP 769).

The second reason offered by Young J is clearly correct and in these circumstances it is unnecessary to enter into an arid discussion of the exercise of a discretion.

It is my understanding that the first respondent did not seek to rely on s 137(b) or (d). The amended notices refer only to ss 137(a) and (c), and although the other subsections were mentioned in passing in argument, I do not understand the first respondent to be pressing them. It therefore remains to consider s 137(c). In relation to this ground, the appellant argued that leave to amend the notices should be refused because the matter was not specifically raised in the defence and was not the subject of submissions to Young J. This would appear to be correct, given the statement by his Honour (at p.25) that:

"It was strange, I thought, that Mr Donovan did not at least put some submissions on paragraph (c) which was the original s 3 of the Justices Protection Act 1848 which arguably meant that any action must be brought against the Justice who made an order in which a warrant consequentially issued rather than the Justice who issued the warrant. Presumably Mr Donovan did not argue this because he did not consider that there was any defect in the conviction or order in the instant case. The point not being argued, I merely note that for purposes of posterity and the Court of Appeal..."

In light of these observations I would refuse the first respondent leave to rely on s 137(c). This is, perhaps, of small moment for it seems to me that the sub-section has no relevance to the facts of this case. In the result, I find that none of the defences contained within Ground 4 are available to the first respondent. I would therefore refuse leave to amend the Notice of Cross-Appeal and Notice of Contention to include defences based on ss 135, 136 and 137 of the Justices Act 1902.

The respondents submitted in the proposed Ground 5 of the amended notices that the appellant's proceedings should have been dismissed upon the basis that the broad role of immunity for judicial officers laid down in Sirros v Moore [1975] QB 118 protected Mr Butterworth from the proceedings. The relevant principle is enunciated by Lord Denning (at 136):

"Every Judge of the courts of this land - from the highest to the lowest - should be protected to the same degree, and liable to the same degree. Each should be protected from liability to damages when he is acting judicially. So long as he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action. He may be mistaken in fact. He may be ignorant in law. What he does may be outside his jurisdiction - in fact or in law - but so long as he honestly believes it to be within his jurisdiction, he should not be liable. Once he honestly entertains this belief, nothing else will make him liable. He is not to be plagued with allegations of malice or ill-will or bias or anything of that kind. Actions based on such allegations have been struck out and will continue to be struck out. Nothing will make him liable except it be shown that he was not acting judicially, knowing that he had no jurisdiction to do it. This principle should cover the Justices of the Peace also."

Young J acknowledged that this principle had been embraced by the NSW Court of Appeal in AG v Agarsky (1986) 6 NSWLR 38, Rajski v Powell (1987) 11 NSWLR 522, and Yeldham v Rajski (1989) 18 NSWLR 48, but noted that although the respondents referred to it, no submissions were made about this wider principle "presumably because it may not apply in cases where the older and narrower rules set out in the statute apply" (at 27).

The first respondent maintained on appeal that express reference to Sirros v Moore was made in written submissions to Young J, that it was put forward as a back-up common law defence to the statutory defence, and was pressed to his Honour as available. However, Counsel did acknowledge that although his Honour's attention was drawn to the case, no supporting submissions were made. This point was stressed by the appellant, who said that the respondents' only reference in their written submissions was a statement on p.18: "...and for the common law position see Sirros v Moore... per Lord Denning @ 135".

In my opinion, the ground was not taken below. In these circumstances and because I believe reliance upon the principle of Sirros would not assist the first respondent in the light of the relevant provisions of the Justices Act, in particular s 136(1), I am of opinion that this ground should not be entertained. In these circumstances, leave to amend the Notice of Cross-appeal and Notice of Contention to include Ground 5 is refused.

The final ground sought to be relied on by the first respondent was that his Honour erred in finding that he was a person who was active in promoting and causing the imprisonment of the appellant. In the court below, Young J held that the appropriate test is that from Aitken v Bedwell (1827) 173 ER 1084. That test requires that the defendant be "active in promoting and causing the punishment to be inflicted". This test was taken up by the Full Court of the Supreme Court of Victoria in Myer Stores Ltd v Soo [1991] VicRp 97; [1991] 2 VR 597. In that case, McDonald J said (at 629):

"To be liable for false imprisonment it must be the act of the defendant or his agent that imprisons the plaintiff or the defendant must be active in promoting and causing the imprisonment: Aitken v Bedwell (1827) 173 ER 1084; Warner v Riddiford [1858] EngR 358; (1858) 140 ER 1052 and Halsbury, 4th ed., vol. 46, paras 1326, 1327. The act of imprisoning a person either personally or by an agent or by being active in promoting and causing that imprisonment thereby is the proximate cause of the imprisonment and is distinguished from the mere giving of information to a police officer or the mere signing of a charge sheet."

Young J was of the opinion that the question as to whether a person is the proximate cause of an imprisonment is a question of fact. His Honour concluded that it was the warrant lodged in the police station which was clearly the proximate cause of the appellant's imprisonment, and thus held that the first respondent was active in promoting and causing the imprisonment of the appellant.

Counsel for the first respondent did not dispute that Aitken v Bedwell was the correct test to apply, but argued that Mr Butterworth was merely an agent in issuing the warrant and that it was Mr Cleary, the magistrate who made the original costs order, who made the active decision to order default imprisonment. Counsel for the appellant, on the other hand, submitted that there was little doubt that if Mr Butterworth had not issued the warrant of commitment, the appellant would not have been imprisoned. The appellant referred to his Honour's finding that it was the warrant lodged in the police station which was the proximate cause of the appellant's imprisonment, and emphasised that it was the first respondent who consciously issued that warrant.

In my opinion, no error on the part of Young J has been demonstrated. His Honour applied the correct legal test, and then decided as a question of fact that the first respondent was a person who was active in promoting and causing the imprisonment of the appellant. In my opinion, there can be no doubt that his Honour's conclusion was the correct one. I would therefore refuse leave to amend the Notice of Cross-appeal and Notice of Contention to include ground 6.

The result of the foregoing is that the appeal is allowed and the cross-appeal and notice of contention are dismissed with costs. I would make the following orders:

(3) The judgment and orders of Young J set aside and in lieu thereof direct entry of judgment for the appellant in the sum of $75,000.00, such judgment to date from 27 April 1993;

(4) The first respondent to pay the appellant's costs of the trial and on appeal;

(5) The appellant to pay the second respondent's costs of the trial and on appeal (such costs being restricted to those which would not have been incurred in defending the claim and the appeal on behalf of the first respondent);

(6) Liberty to apply in relation to the form of the orders on 24 hours notice is reserved.