Strano v Australian Capital Territory [2016] ACTSC 4 (2 February 2016)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2016] ACTSC 4

1. The plaintiff's claim was filed outside the applicable limitation period.
2. The parties will be heard on the orders necessary to give effect to this conclusion.

PROCEDURE - Supreme Court procedure - claim for compensation for unlawful detention - application to strike out - detention arising from imprisonment imposed by Magistrate for offence where no penalty of imprisonment available - whether detention unlawful - whether claim statute-barred.

HUMAN RIGHTS - claim for compensation for unlawful detention made under Human Rights Act 2004 (ACT), s 18(7) - whether s 18(7) creates a statutory cause of action separate from tort of false imprisonment.

LIMITATION OF ACTIONS - GENERAL - claim for compensation for unlawful detention made under Human Rights Act 2004 (ACT) - claim filed more than seven years after release from custody -whether claim arising under Human Rights Act accrues later than common law claim for false imprisonment - whether limitation provisions can be interpreted under Human Rights Act to allow extended period for filing claim - whether extended limitation period for actions for relief from consequences of mistake applies where imprisonment resulted from mistake by sentencing Magistrate.

Charter of Human Rights and Responsibilities Act 2006 (Vic)

Human Rights Act 2004 (ACT), ss 18, 18(1), 18(3), 18(4)(b), 18(6), 18(7), 23, 30, 40B, 40C, 40C(3), 40C(4), Part 5A

Interpretation Act 1987 (NSW)), s 34

Legislation Act 2001 (ACT), ss 11, 16B, 138

Limitation Act 1969 (NSW), ss 34, 50C, 50D, 50D(1)(c), 56

Limitation Act 1985 (ACT), ss 11, 16B, 33, 33(1), 34

Road Transport (Driver Licensing) Act 1999 (ACT)

Court Procedures Rules 2006 (ACT), r 425

Burow v The Queen (2015) ACTCA 61

Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380

Morro and Ors v Australian Capital Territory (2009) 234 FLR 71

Project Blue Sky v ABA [1998] HCA 28; (1998) 194 CLR 355

Re application for bail by Islam (2010) 4 ACTLR 235

Ruddock and Ors v Taylor (2005) 222 CLR 612

Simpson v Attorney General [1994] 3 NZLR 667

Sinclair v Registrar-General [2010] NSWSC 173

State of New South Wales v Gillett [2012] NSWCA 83

International Covenant on Civil and Political Rights 1966, 999 UNTS 171 (opened for signature 16 December 1966, entered into force 28 January 1993)

1. Salvatore Strano claims compensation from the ACT for what he says was unlawful imprisonment for a period of three months in 2005. The defendant (the Territory) has made an application under r 425 of the Court Procedures Rules 2006 (ACT) for judgment to be entered for the defendant or, in the alternative, for the statement of claim dated 19 December 2012 to be struck out, on the ground that there is a good defence to the claim, being that the order for imprisonment was valid until set aside. The Territory also says that even if a cause of action does exist as put by Mr Strano, this particular claim is statute-barred because it was filed after the end of the applicable limitation period.

2. For reasons related to such things as the availability of court time, it has been agreed that I should determine the limitation issue before hearing arguments about the substantive claim. This has required me, to some extent, to assume the existence of the cause of action relied on. A decision that the claim is not statute-barred would not, in these circumstances, imply a conclusion that the cause of action does exist, only that if it does, the claim in the current case has been brought within time.

3. On 1 June 2005, Mr Strano was sentenced under s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT) (the Driver Licensing Act) on a plea of guilty to a charge that, as a repeat offender, he drove while unlicensed. That provision is as follows:

(2) A person who is not, and never has been, the holder of an Australian driver licence must not drive a motor vehicle on a road or road related area unless the person is exempted by regulation from holding an Australian driver licence.

(b) for a repeat offender - 50 penalty units, imprisonment for 6 months or both.

4. Mr Strano was in colloquial terms a repeat offender, having at the time of the offence a criminal history including a previous conviction for unlicensed driving. However, the previous conviction had been recorded in NSW, and under the relevant definition of "repeat offender", only convictions recorded in the ACT were relevant. Thus, apart from the applicable licence disqualification, the only penalty provided for by the Driver Licensing Act for the offence committed by Mr Strano was a fine.

5. As far as I am aware, it is undisputed that the sentencing Magistrate had no power to impose a term of imprisonment, but the significance and categorisation of his Honour's sentence order, and in particular whether it involved jurisdictional error, is not agreed; however, it need not be determined at this stage.

6. In 2007, having been given leave to appeal out of time, Mr Strano appealed against the sentence. That leave had been sought after it was suggested to Mr Strano in May 2007, by another Magistrate who was dealing with him for a further offence, that his earlier sentence might not have been available to the sentencing Magistrate.

7. When the appeal was determined in the Supreme Court, no formal finding was made that Mr Strano's imprisonment had been unlawful. Rather, Marshall J dismissed the conviction appeal, upheld the sentence appeal and re-sentenced Mr Strano to "no penalty". During the hearing, his Honour had referred to "the fact that the appellant has served time for something he shouldn't have served time for". In pronouncing his orders, his Honour said:

One, the appeal against conviction under section 31(2) of the Act, without the appellant being considered a repeat offender, is dismissed. Two, the appeal against sentence is allowed. Three, the licence disqualification is set aside. Four, the appellant is sentenced to no penalty. And five, there is no order as to costs.

The appropriateness of order number four is relevant, having regard to the fact that unfortunately the appellant has served the term of imprisonment in respect of an offence that he was convicted of based on misapprehension of the extent of the aggravating circumstances being present when the aggravating circumstances were not made out.

8. No claim was made in relation to Mr Strano's imprisonment following the determination of the appeal in his favour.

9. At some later time, Mr Strano became aware of the possibility that some compensation might be available for his period in prison. The current claim, expressed to rely on the Human Rights Act 2004 (ACT) (the Human Rights Act), was filed on 19 December 2012.

10. Mr Strano's claim does not allege the tort of false imprisonment. As well, Mr Strano specifically disclaims any reliance on personal injury arising from the imprisonment.

11. There are good reasons for Mr Strano not to make any claim in tort; his counsel conceded that the limitation period for a tortious claim for false imprisonment or a claim in respect of personal injury would have begun, at the latest, when Mr Strano was released from prison in August 2005, and would therefore have expired before this claim was filed: that is, the limitation period would have expired in August 2011 in relation to a false imprisonment claim or in August 2008 if the claim had relied on personal injury (see Limitation Act 1985 (ACT), ss 11 and 16B).

12. Rather, the claim relies on s 18(7) of the Human Rights Act (which for convenience will be referred to in these reasons simply as s 18(7)); counsel for Mr Strano says that this section creates an independent cause of action in respect of "unlawful arrest or detention".

No reliance on Part 5A of Human Rights Act

13. Although the claim is made by reference to the Human Rights Act, it is not made under Part 5A of that Act. Section 40B of the Human Rights Act relevantly makes it unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. Section 40C provides that a person who claims to have been a victim of a contravention by a public authority of s 40B may, relevantly, start a proceeding in the Supreme Court against the public authority. Part 5A had been enacted before Mr Strano's claim was filed, although it did not exist when Mr Strano was imprisoned or when he was released. Furthermore, if Part 5A did have any operation in relation to events occurring before it came into force (a matter that was not the subject of submissions), the combination of s 40C(3), which imposes a specific limitation period of 12 months for such claims) and s 40C(4), which excludes any award of damages as a remedy in such actions) would have provided obstacles to a claim by Mr Strano.

14. As noted, the claim is based on s 18(7). It is convenient at this point to set out s 18 of the Human Rights Act in full:

(1) Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained.

(2) No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.

(3) Anyone who is arrested must be told, at the time of arrest, of the reasons for the arrest and must be promptly told about any charges against him or her.

(4) Anyone who is arrested or detained on a criminal charge -

(a) must be promptly brought before a judge or magistrate; and

(b) has the right to be tried within a reasonable time or released.

(5) Anyone who is awaiting trial must not be detained in custody as a general rule, but his or her release may be subject to guarantees to appear for trial, at any other stage of the judicial proceeding, and, if appropriate, for execution of judgment.

(6) Anyone who is deprived of liberty by arrest or detention is entitled to apply to a court so that the court can decide, without delay, the lawfulness of the detention and order the person's release if the detention is not lawful.

(7) Anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention.

(8) No-one may be imprisoned only because of the inability to carry out a contractual obligation.

15. The claim is made in pursuit of what is said to be an independent right created by s 18(7). The significance of asserting the existence of an independent right is that it provides the basis on which counsel for Mr Strano argues that the claim is not barred by the provisions of the Limitation Act nor by the provisions of the Human Rights Act itself (at [13] above).

16. Counsel's argument that Mr Strano has a claim for damages under the Human Rights Act that is not statute-barred involves the following steps:

(a) Section 18(7) creates a statutory cause of action arising from unlawful imprisonment that is distinct from the tort of false imprisonment (Gray J in Morro and Ors v Australian Capital Territory (2009) 234 FLR 71 (Morro)).

(b) The limitation period set out in s 11 of the Limitation Act applies to this statutory cause of action.

(c) However, the limitation period may operate differently on the statutory cause of action, because the statutory cause of action may accrue later than the tortious cause of action.

(d) The tortious cause of action accrues when the plaintiff is unlawfully imprisoned, but the statutory cause of action accrues only when the plaintiff becomes aware that he or she has been unlawfully imprisoned.

(e) The time of accrual of the statutory cause of action is different from the time of accrual of the tortious action because, in contrast to the action in tort, the statutory cause of action requires the plaintiff to establish that the imprisonment was unlawful, whereas in the tort action, once the plaintiff has established that the plaintiff's imprisonment was caused by the defendant, requires the defendant to establish the lawfulness of the imprisonment (Ruddock and Ors v Taylor (2005) 222 CLR 612 at 650; [140], Kirby J, quoted (although incorrectly cited) in Morro at [51]).

(f) In this case, Mr Strano did not become relevantly aware that his imprisonment had been wrongful until the Supreme Court upheld his appeal against sentence on 4 December 2007, and therefore his claim filed on 19 December 2012 was well within the six-year limitation period that commenced from the date when his cause of action accrued.

17. Under s 11 of the Limitation Act as it applies to an action on the tort of false imprisonment, which accrues when the imprisonment begins, it may be that action could be instituted in respect of the later part only of a period of imprisonment if that part, but not the whole of the period, fell within the relevant limitation period. However, there is no suggestion that any part of Mr Strano's imprisonment fell within the period of six years before his claim was filed.

The s 18(7) cause of action

18. Counsel for Mr Strano identified the statutory cause of action as an action under s 18(7) for compensation, being an action in which the onus is on the plaintiff to establish unlawful imprisonment. He said that, by analogy with s 23 of the Human Rights Act which creates an enforceable right of action not previously recognised, s 18(7) is also intended to expand the rights of people unlawfully arrested or detained, and that the posited meaning of s 18(7) is clear on its face.

19. In Morro, Gray J expressed the view that s 18(7) created a substantive statutory right to compensation. Counsel for Mr Strano relied on Gray J's conclusion. He did not draw my attention to any other judicial consideration of s 18(7), and it seems that there is no equivalent provision in the Charter of Human Rights and Responsibilities Act 2006 (Vic) or in the New Zealand Bill of Rights Act 1990 (NZ).

20. Counsel for Mr Strano submitted that Gray J's decision was authority that I should simply follow (at least as far as it goes), and that I should accept that the cause of action exists. However, there are several reasons why I am disinclined to do so.

21. First, I consider that Gray J's conclusion about the existence of a substantive statutory right to compensation under s 18(7) was in the circumstances of that decision obiter dicta.

22. In Morro, claims were brought by three plaintiffs whose detention in full-time custody was said to have been unlawful. The claims appear to have been brought at common law (relying on the tort of false imprisonment) and under s 18(7). There was no limitation issue. The defendant ACT conceded that the common law claims were made out, and Gray J said:

2. The fundamental issue in these proceedings involves the proper assessment of the damages or compensation payable to each of the plaintiffs.

3. That issue raises the question of whether s 18(7) of the Human Rights Act 2004 (ACT) gives an independent statutory right to compensation or is only declaratory of a right to compensation. If it is the former, then there is the issue of whether the quantum of compensation differs from whatever compensation is available under the general law.

23. While expressing the conclusion that there was a statutory cause of action, his Honour made no finding that the statutory cause of action had been made out.

24. Gray J then considered whether the assessment of damages under a cause of action arising under the Human Rights Act would require a different process, or generate a different outcome, from the assessment of common law damages, but did not find that any distinction needed to be drawn between compensation payable under s 18(7) and compensation for the tort of false imprisonment. His Honour said:

49. False [or] wrongful imprisonment is founded upon the common law action of trespass to the person. It is committed when the voluntary conduct of one person directly subjects another to total deprivation of freedom of movement without lawful justification. Special damage is not required (see, Laws of Australia, (LBC), Volume 33.8 Intentional Torts).

50. The unlawful detention referred to [in] s 18(7) of the ACT Act can be remedied by recourse to this action. In Re Bolton; ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 Deane J said [at 528-529]:

The common law of Australia knows no letter de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action. Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorize or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate. That being so, it is the plain duty of any such officer to satisfy himself that he is acting with the authority of the law in any case where, in the name of the Commonwealth, he directs that a person be taken and held in custody. The lawfulness of any such administrative direction, or of actions taken pursuant to it, may be challenged in the courts by the person affected: by application for a writ of habeas corpus where it is available or by reliance upon the constitutionally entrenched right to seek in this Court an injunction against an officer of the Commonwealth. It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny. They provide the general context of the present case.

Cited with approval of Ruddock v Taylor (2003) 222 CLR 612 by McHugh J at [120] and Kirby J at [138].

The scope of the damages available to a plaintiff who has been falsely imprisoned embraces both [sic] general, aggravated and exemplary damages.

26. His Honour went on to quote at [52] to [55] from several other authorities about the assessment of damages for false imprisonment.

27. However, Gray J did not make explicit any conclusion about the relationship between damages for false imprisonment and compensation under s 18(7), beyond his comment at [50] that "the unlawful detention referred to in s 18(7) of the [Human Rights Act] can be remedied by recourse to [the action in tort]."

28. His Honour then awarded damages purely by reference to the law relating to damages for false imprisonment, and did not purport to be awarding damages for the breach referred to in s 18(7).

29. While Gray J's conclusion that unlawful detention referred to in s 18(7) could be remedied by recourse to the tort of false imprisonment relieved his Honour of the need to assess damages in respect of the Human Rights Act claim, that conclusion did not require him to determine that the statutory cause of action existed; whatever the legal impact of s 18(7) on claims arising from unlawful detention, such detention could be remedied under tort law. In other words, it was enough for his Honour to determine that if the statutory cause of action existed, the damages available would have been the same as those appropriate under the common law claim.

30. That is, his Honour's conclusion that the action under s 18(7) exists went beyond the conclusion necessary for him to award damages to the plaintiffs for tortious imprisonment that was conceded by the defendant. The only conclusion that was a necessary step in his reasoning was that any remedy given by s 18(7) could be provided by the existing action in tort.

31. As well, I am not convinced by the process of reasoning by which his Honour reached the conclusion that s 18(7) created a separate statutory cause of action.

32. First, the implication found by his Honour in the Human Rights Act, by analogy with Simpson v Attorney General [1994] 3 NZLR 667 (Baigent's Case), quoted by Gray J at [15], that "effective remedies should be available for breaches of the rights set out" in the Human Rights Act, does not in my view require a remedy additional to a remedy already provided by the general law of the jurisdiction (although I do not exclude the proposition that if the general law remedy were removed, or restricted such that it no longer provided an adequate remedy or a remedy in all appropriate cases, a new or alternative remedy might be inferred from the Human Rights Act provision).

33. Secondly, the assumption that ss 18(7) and 23 of the Human Rights Act must operate in the same way simply because they both provide for a right to compensation (at [24] to [28]) does not seem to have any substantial basis, especially given the different kinds of detail provided in the two sections. Furthermore, his Honour did not refer to any basis for a proposition that s 23 requires a right to compensation independent of any such right found in the general law, and indeed before me, counsel for Mr Strano submitted that there was no such legal right found in the general law. The fact that the two provisions that refer to compensation, as well as approaching their topics in different ways, seem to sit within different legal contexts suggests that even if the proposition that ss 18(7) and 23 of the Human Rights Act must operate in the same way were accepted, that proposition would not say anything about what that "same way" might be.

34. Thirdly, his Honour's statement that the two provisions "appear on their faces to provide for remedies in the circumstances that they predicate" (at [32]) is in my view no more convincing than the alternative proposition that the two provisions "appear on their faces" to require that ACT law provides for compensation for the breach of the specified rights. Indeed s 23 explicitly refers to a right to be compensated "according to law" (an addition, and a distinction between s 18(7) and s 23, which could easily reflect the existence of a recognised cause of action for false imprisonment and the absence of a recognised cause of action for what might loosely be described as unjust conviction).

35. Fourthly, I am not convinced that a failure to "give effect to the tenor of Art 9, cl 6 of the ICCPR which is the source of the provision in s 18(7)", which Gray J said at [34] would be the effect of reading s 18(7) so as not to create a statutory right to compensation, has any particular significance. The ACT legislature may look to the International Covenant on Civil and Political Rights 1966,999 UNTS 171 (opened for signature 16 December 1966, entered into force 28 January 1993) (the ICCPR) for inspiration, but does not need to rely on the ICCPR for legislative power; there is no reason why ACT legislation should be assumed to give full effect to any particular international instrument, especially one to which the ACT is not a party.

36. Finally, his Honour did not provide any reasons for his statement that:

35. It seems to me that when a party, not being a State Party to the ICCPR, legislates to give effect to such a provision, it is not merely declaratory of a right but is intended to give effect to a substantive remedy where the right to which such a remedy is directed has been contravened.

37. In particular, it is not at all clear what significance his Honour saw in the fact that the ACT is not a party to the ICCPR.

38. Counsel for Mr Strano did not make any submissions in which he sought to apply to s 18(7) generally recognised principles of statutory interpretation. In particular he did not address the text of s 18(7), or of the Human Rights Act, in any serious way, preferring to rely on Gray J's conclusions about s 18(7).

39. Instead, counsel reiterated the principles of statutory interpretation relied on by Gray J to reject the significance of explanatory material related to the relevant legislative provisions. His Honour, in effect, rejected the arguments made by the defendant in Morro in reliance on various statements made in relevant extrinsic materials to the general effect that the Human Rights Act as enacted was not intended to create new causes of action or new remedies (quoted in Morro at [21] and [22]). His Honour did so (at [36]) by reference to comments made by, among others, Spigelman CJ and Mason P in the case of Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380. Those comments, quoted by Gray J at [36] and [37], were to the general effect that, in interpreting legislation, the courts are not attempting to discover the subjective intention of the legislature but to determine the objective meaning of the legislation.

40. I do not dispute the principles as expressed by Spigelman CJ and Mason P to the effect that the basic interpretation task is to determine what is meant by the words enacted by the legislature.

41. However, it is notable that the comments of Mason P relied on by Gray J related specifically to cases in which expressions of parliamentary intention "contradicted the text" of the legislation, and referred to the possibility that the asserted intentions of the legislature may not have been effected in the legislation (see also Burow v The Queen (2015) ACTCA 61).

42. Gray J's conclusion that the parliamentary statements of intention should be ignored depended on his view (expressed at [38]) that "those statements are not consistent with at least the apparent meaning of s 18(7) ... which on its face gives a statutory right to compensation" - a view which, as already indicated, I do not find convincing.

43. Whatever approach is taken to the scope for using extrinsic materials (which differs slightly between the ACT and NSW - compare s 138 of the Legislation Act 2001 (ACT) with s 34 of the Interpretation Act 1987 (NSW)), there is as I understand it no dispute that a legislative provision must be interpreted in context, particularly in the context of the Act or other legislative instrument in which the provision is found (see, for instance, Project Blue Sky v ABA [1998] HCA 28; (1998) 194 CLR 355 at 381-382; [69] and [70], McHugh, Gummow, Kirby and Hayne JJ).

44. That is, the comments that were relied on by Gray J to justify disregarding, as inconsistent with the meaning of s 18(7), the explanatory materials and speeches made in connection with the enactment of the legislation do not justify ignoring the rest of the Human Rights Act.

45. In summary, the difficulty that I have with Gray J's reasoning is that his Honour, without any proper consideration of the text of s 18(7) or the legislative context of that provision, without any consideration of the extrinsic materials that are under the Legislation Act available for interpretation purposes, and without offering any explanation of his conclusion by reference to the text of s 18(7), adopted a particular interpretation of that provision and then relied on that unexplained interpretation to reject the extrinsic material as inconsistent with the text as he had already interpreted it.

46. I have already noted that, before me, counsel did not comment on s 18(7) in the context of s 18 as a whole, or in the context of the Human Rights Act more broadly. Since no such arguments were made, I do not need to address them, but I note in passing several matters.

47. Section 18(7) sits within a section which confers a variety of rights that give substance to the right to liberty and security of person set out in s 18(1). These include a person's rights to be told the reasons for his or her arrest (s 18(3)); to be brought promptly before a judge or magistrate after arrest (s 18(4)(a)); to be tried within a reasonable time or released (s 18(4)(b)); and to apply to a court for determination of the lawfulness of his or her detention (s 18(6)).

48. All these rights are to a greater or lesser degree protected by the laws of the ACT; where any such law is said to protect the relevant right inadequately, there is scope for interpreting that law to enhance the protection it provides so as to achieve greater consistency or compatibility with s 18 or, as a last resort, declaring that the law is incompatible with the Human Rights Act. To that extent, s 18(7) appears to have no different significance from that of any of the other provisions of s 18.

49. The proposition put by counsel in reliance on the conclusions reached by Gray J, and those conclusions themselves, seem to depend on the proposition that a provision mentioning compensation must therefore have a different status and operation from a provision mentioning, for instance, a right to have the lawfulness of one's detention considered by a court. That proposition may or may not be correct, but I have heard no explanation for why it should be correct. The "textual analysis" offered by counsel, if it can be called such, which effectively goes no further than pointing to the word "compensation" in the relevant provision, in my view establishes nothing.

50. Secondly, the specification within the Human Rights Act of what can be "done" with the rights set out in that Act, and the absence of any specification that the recognition of those rights in turn creates new rights of action, must also be taken into account in interpreting the various provisions of the Human Rights Act that set out particular rights. In this context, the statements made in the extrinsic material disregarded by his Honour as inconsistent with his interpretation of the text of s 18(7) may become relevant, in that they are in fact consistent with the overall structure and content of the Human Rights Act, and may therefore support the inferences that can be drawn from that overall structure.

51. For the reasons set out above, I do not adopt Gray J's reasoning, or the conclusion, to the extent that it is based on that reasoning, that s 18(7) creates a statutory cause of action separate from the tort of false imprisonment.

52. For present purposes, however, I do not need to make any finding about whether the s 18(7) cause of action exists, and therefore, I do not need to reject Gray J's conclusion, or alternatively agree with it for other reasons. All I need to consider is whether, if the s 18(7) cause of action does exist, Mr Strano's claim was made before the expiry of the applicable limitation period.

53. As to the question of applicable limitation periods, Mr Strano's counsel put forward three different bases on which I could find that the claim was not statute-barred

(a) First, it is not statute-barred because the cause of action under s 18(7) only arises when the plaintiff becomes aware of the infringement of his or her rights by virtue of a judicial determination that the relevant imprisonment was unlawful, and in this case the claim was filed within the s 11 limitation period, if that period is counted from the point at which Mr Strano became so aware. This submission requires consideration of whether, if s 18(7) does create a cause of action, the cause of action accrues at a point different from the point of accrual of the similar common law cause of action.

(b) Secondly, even if the statutory cause of action accrues at the same time as the common law cause of action, the Human Rights Act requires s 11 of the Limitation Act to be interpreted so as to extend the limitation period by reference to when the plaintiff discovers, or might with reasonable diligence have discovered, that the cause of action has accrued.

(c) Thirdly, even if the statutory cause of action accrues at the same time as the common law cause of action, s 34 of the Limitation Act operates in relation to a claim involving a mistake to exclude from calculation of the limitation period any time before the plaintiff becomes, or might with reasonable diligence have discovered, the mistake.

Statutory cause of action accrues at a different point

54. Counsel's first submission was, in effect, that:

(a) the s 18(7) cause of action differs from the common law one in that the statutory cause of action imposes an onus of proof on the plaintiff that is different and more burdensome than that imposed by the common law cause of action; and

(b) therefore, the cause of action only accrues when the plaintiff becomes aware of his or her cause of action.

55. If these propositions were accepted, Mr Strano's action would have been commenced within the six-year limitation period; it was accepted for present purposes that the earliest Mr Strano had been aware that he might have been unlawfully imprisoned was when this was raised by the second Magistrate in May 2007 (at [6] above), and the earliest relevant judicial determination was that made when Mr Strano's appeal was determined by Marshall J).

56. I note first that there is no inherent logic in counsel's submission; "therefore" does not seem to mean more than "and". I cannot identify the submission as the application of a recognised legal principle to the circumstances of this case. Nor did counsel identify any such principle.

57. As to the difference between the common law action and the asserted statutory action, counsel submitted that at common law, it was for the defendant to establish that the imprisonment was lawful, but that under the statutory action, it was for the plaintiff to establish that the imprisonment was unlawful (at [16(e)] above). In the course of argument it emerged that the position in relation to the common law action was somewhat more complex than put by counsel, but not apparently in a way that detracted from his basic argument.

58. Counsel for Mr Strano said on numerous occasions that the distinction he asserted could be extracted from a reading of s 18(7), but did not at any point explain how to read s 18(7) as creating a cause of action with, apparently, the same elements as the common law action but a different approach to how the claim was to be established. Nor did counsel explain why a statutory remedy said to be created in order to protect human rights should be interpreted as, generally, providing less protection to a plaintiff than the common law (in that it was said to impose a higher burden on the plaintiff in establishing the cause of action, albeit possibly compensated for in the case of tardy or uninformed plaintiffs by an extended limitation period).

59. Nor did counsel explain why, if the independent statutory cause of action for unlawful imprisonment does in fact place a heavier legal or evidentiary burden on the plaintiff, that burden should be mitigated by delaying the accrual of the cause of action by reference to, in general terms, the plaintiff's awareness of the legal issues giving rise to the cause of action.

60. I note in passing that s 18(6) of the Human Rights Act requires that a person who is detained has an opportunity to test the lawfulness of his or her detention in a court, so that the lawfulness can be determined "without delay" and the person can be released if the detention is not lawful. The emphasis in this provision in remedying an unlawful detention quickly does not detract from s 18(7)'s requirement of compensation for unlawful detention, but it does in my view raise the question why s 18(7) should be read as intended to provide a right to compensation that might be more difficult for the plaintiff to establish than the common law right but might only accrue long after the unlawful detention has finished.

61. It seems to me that there is a further problem raised by the submission that s 18(7) is not satisfied by the existence of the common law cause of action but creates a new statutory cause of action. While the plain words of s 18(7) would be apt to protect various versions of the common law cause of action, the words of s 18(7) if interpreted as carrying specific details of a statutory cause of action could not easily be read as also relevant to common law causes of action with certain directly inconsistent attributes such as are posited by counsel in this case. That is, it is hard to see that s 18(7) can be read as both creating a specific new statutory cause of action and protecting other existing causes of action that are in matters of detail inconsistent with the statutory cause of action.

62. Counsel's approach to s 18(7) must imply that s 18(7) only creates and protects the specific right posited by counsel (or other specific form of the right identified by a court). That might be an issue if the legislature decided to abolish the current common law action with its general onus on the defendant to establish the lawfulness of the detention. In such a case, it would be hard to see that s 18(7) could also be relied on to guarantee any kind of remedy that did not, for instance, require the plaintiff to establish the unlawfulness of his or her detention.

63. Furthermore, to the extent that the existence of the independent s 18(7) right to compensation depends on the approach taken by Gray J in Morro, that approach provides no support for counsel's submission that the statutory cause of action accrues at a different time from the right of action in tort. His Honour's apparent conclusion in Morro at [43] that the s 18(7) remedy "can ... be treated as a co-extensive remedy to that provided at common law" implies that the content and incidents of the statutory right and the common law right are the same - certainly it gives no support for the proposition that they are distinctively different.

64. Another problem with counsel's submissions about the potentially delayed accrual of the posited cause of action under s 18(7) arises from the need to describe the point at which the statutory cause of action is said to accrue. Counsel, when pressed, said that the cause of action did not accrue until a court has "made an order or made a finding ... establishing that [the imprisonment] was unlawful". Although this might be seen as providing a relatively easy test for when the limitation period begins to run, the facts of the current case (at [7] above) show that even this test would not necessarily be easy to apply.

65. There is also a question in my mind whether the recognised (if not always crystal clear) distinction between issues of fact and law might be relevant in considering any variation of a standard limitation period in relation to a particular cause of action. In general terms, would it be justifiable to infer a limitation period for a particular cause of action that began to run when the plaintiff became aware of a particular legal conclusion (for instance, that the relevant imprisonment had been unlawful), as distinct from when he or she became aware of a particular fact (for instance, that he or she had suffered a specific physical injury)? It is notable that s 23 of the Human Rights Act, which has at certain points been relied on to bolster the argument that s 18(7) provides an independent right to compensation, requires a "final decision" before the right to compensation arises.

66. The dependence of the cause of action asserted by counsel for Mr Strano on a conclusion of law raises a number of issues. The absence of any reference in s 18(7) to a final determination of the unlawfulness of the detention concerned leaves open questions about exactly when the limitation period would begin to run, and how it would be treated if, for instance, the unlawfulness of the detention was the subject of successive successful appeals to higher courts; would the limitation period be suspended if a finding that the detention was unlawful were overturned on appeal, only to revive if that decision were itself overturned by a higher court?

67. There was also no discussion, in the context of identifying the start of a limitation period as posited by counsel for Mr Strano, of the significance of appeal periods applying to a decision that the detention was unlawful, let alone of appeal periods that are "extended" by the subsequent grant of leave to appeal out of time.

68. Finally, there is the question whether, if the cause of action only accrues as a result of a judicial determination of the unlawfulness of the detention, there is any scope for instituting an action for compensation, before that certainty has been reached, on the basis of a suspicion or legal argument that the detention was unlawful, and with a view to having that issue determined in that action. If the cause of action really only accrues on the making of a final determination of unlawfulness (a proposition that is necessary to the limitation argument under consideration), that would seem to erect a substantial obstacle to a claim under s 18(7) and would make the Human Rights Act remedy significantly less attractive for a potential claimant. Indeed there might be cases in which there was no available avenue for a potential claimant to seek such a determination in advance of making a claim under s 18(7).

69. I am accordingly not convinced that, if s 18(7) creates an independent statutory cause of action for wrongful imprisonment, it is a cause of action that accrues only when the plaintiff becomes aware, as a result of a judicial determination, that the imprisonment was unlawful.

70. I reject the argument that Mr Strano's claim is within time to the extent that the argument relies on the proposition that the cause of action only accrued when Marshall J determined Mr Strano's appeal, at the end of the period during which Marshall J's decision could have been appealed without leave, or possibly even later.

Interpretation of s 11

71. Counsel's first alternative submission was that certain provisions of the Limitation Act should be interpreted so as to extend the period within which the s 18(7) claim could have been brought.

72. Section 11 of the Limitation Act is as follows:

(1) Subject to subsection (2), an action on any cause of action is not maintainable if brought after the end of a limitation period of 6 years running from the date when the cause of action first accrues to the plaintiff or to a person through whom he or she claims.

(2) Subsection (1) does not apply to a cause of action in relation to which another limitation period is provided by this Act.

73. Counsel for Mr Strano says that, as required by s 30 of the Human Rights Act, this provision must be interpreted, so far as it is possible to do so consistently with its purpose, in a way that is compatible with human rights.

74. The defendant points to the process for interpreting legislation under the Human Rights Act that is set out in Re application for bail by Islam (2010) 4 ACTLR 235 at [236]:

Step 1: Identify all meanings of the provision that are available under ordinary principles of statutory interpretation and consistent with legislative purpose (the available meanings), including meanings generated by applying s 30 of the Human Rights Act but also meanings that would be available apart from s 30.

Step 2: Set aside for the time being any available meaning that is not human rights-compatible under s 30.

Step 3: Examine the remaining available meanings (that is, those that are human rights-compatible).

Step 3A: If there are one or more available meanings that are human rights-compatible, then that meaning, or the one of those meanings required by s 139 of the Legislation Act to be preferred, is adopted.

Step 3B: If there are no available meanings left (that is, there were no available meanings that were also human rights-compatible), re-instate the non-compatible available meanings set aside at Step 2.

Step 4: Undertake an inquiry under s 28 of the Human Rights Act into whether any of those re-instated available meanings can be justified.

75. Counsel has not made any attempt at the interpretative process as set out in Islam.

76. He has not explained any basis on which s 11 could be read as providing for a cause of action arising out of unlawful imprisonment to be subject to a limitation period running for longer than six years from the accrual of the cause of action. Without any assistance from submissions, the only way I can see in which the end of the limitation period could be extended would be by finding that the accrual of the cause of action is deferred to a point that may be some time later than the start (or even the end) of the period of imprisonment. I have already rejected this as an option.

77. Counsel did however make submissions about his s 11 argument by reference to the NSW case of State of New South Wales v Gillett [2012] NSWCA 83 (Gillett). That case involved the interpretation of ss 50C and 50D of the Limitation Act 1969 (NSW), which were relevantly as follows:

50C Limitation period for personal injury actions

(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire:

(a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,

(b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.

Note. The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3.

(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts:

(a) the fact that the injury or death concerned has occurred,

(b) the fact that the injury or death was caused by the fault of the defendant,

(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.

(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.

78. In Gillett, the plaintiff had originally been given incorrect legal advice to the effect that there were, respectively, no prospects of success or no reasonable prospects of success on two proposed claims against his employer.

79. He subsequently received different legal advice and made the claim under consideration.

80. The matter for determination by the Court of Appeal was whether the cause of action had become "discoverable" for the purposes of s 50D before the plaintiff (by then the respondent) received the later legal advice.

81. The submission of the respondent was set out at [109] by Beazley JA as follows:

The respondent submitted that there was no error in his Honour's determination in this case, albeit that the circumstances were somewhat unusual. He summarised the position as follows. The respondent acknowledged that he knew he had suffered a psychiatric injury at an early stage after the conclusion of the criminal proceedings. He sought advice as to whether there was anything legally he could do about that. He received legal advice that he could not. The respondent submitted that in those circumstances, the cause of action was not discoverable unless and until he received legal advice that the State was legally liable for his injury.

82. Her Honour accepted that submission and dismissed the State's appeal against the striking out of the Limitation Act defence. McColl JA agreed with her. So did Campbell JA, who added further comments about the significance of s 50D(1)(c), and Young and Whealy JJA, who also agreed with Campbell JA's added comments.

83. Counsel for Mr Strano relied on this case in support of the proposition that there are causes of action in which "knowledge of one's legal rights are essential to determining when the limitation period will run".

84. This case supports the proposition that there are causes of action in respect of which there is a specific provision linking the operation of a limitation provision to the plaintiff's knowledge about his or her legal rights. It provides no support for the proposition that, absent such specific provisions, such a link can be inferred simply because it would be convenient for the plaintiff. Indeed, the existence of specific provisions of this sort would seem to tell against a proposition that such links can readily be inferred in the absence of such a provision.

85. I note further that, contrary to counsel's submissions, the NSW provision that begins a limitation period when a cause of action is "discoverable" does not simply reflect a difference in terminology from the ACT provision that begins a limitation period from when the cause of action "accrues"; the NSW legislation uses a different word to describe a different concept, namely a limitation period (the "3 year post discoverability limitation period"), which runs not from the accrual of the cause of action but from a different point, and that may apply as an alternative to a different limitation period (the "12 year long-stop limitation period") that does run from the point at which the action accrues. Those concepts were introduced in order to change the law, not simply to rename existing concepts (so much is clear from Campbell JA's discussion at [113] to [131] about the history of the then relatively recent NSW provisions).

86. In the course of discussion on this case, Mr Crispin conceded that, as a general proposition, the only circumstance that would delay the start of a limitation period (or extend its expiry) was that the cause of action had not yet accrued.

87. I have already rejected the submission that the limitation period in respect of any action arising under s 18(7) is delayed by the accrual of such a cause of action only when the legal foundation for the action has been judicially determined. I can see no basis on which s 11 of the Limitation Act could be interpreted to extend, for the purpose of actions brought under s 18(7), the limitation period set by s 11.

Limitation Act s 34 - mistake

88. Finally, counsel seeks to rely on s 34 of the Limitation Act. That section is as follows:

(1) Subject to subsection (3), if there is a cause of action for relief from the consequences of a mistake, the time that elapses after a limitation period fixed by or under this Act for the cause of action begins to run and before the date when a person having (either solely or with other persons) the cause of action first discovers, or may with reasonable diligence discover, the mistake does not count in the reckoning of the limitation period for an action on the cause of action by him or her or by a person claiming through him or her.

(2) Subsection (1) has effect whether the limitation period for the cause of action would, apart from this section, end before or after the date mentioned in that subsection.

(3) If property is, after a transaction in which a mistake is made, purchased for valuable consideration by a person who does not, at the time of the purchase, know or have reason to believe that the mistake has been made, subsection (1) does not apply to a limitation period for a cause of action for relief from the consequences of the mistake against the purchaser or a person claiming through him or her.

89. Counsel for Mr Strano says that when the matter complained of is the consequence of a mistake, then the limitation period does not begin to run until the mistake is discovered or ought to have been discovered. Here, the matter complained of is the imprisonment. In a case in which a plaintiff is still detained, the proper relief would generally be his or her release, but in a case such as this one, the only useful remedy is damages. That is, in a case such as this, "relief from the consequences of a mistake" describes an award of damages.

90. It does not seem to me that as a matter of language, compensation for wrongful imprisonment can properly be described as "relief from" imprisonment imposed in consequence of a mistake. Clearly, if the wrongful imprisonment were continuing, then action for "relief" from that imprisonment would not be affected by any limitation issue, but nor would it seem to be appropriately pursued by an action described as an action for relief from the consequences of a mistake (as distinct from, presumably, an action in the nature of habeas corpus or perhaps, if available, a simple appeal). If action arising from wrongful imprisonment is intended to be covered by s 34, but the only relevant class of claim that would be affected by s 34 is therefore a claim for compensation after the end of the imprisonment, then it is hard to see why such a claim would not be more clearly identified in s 34.

91. Counsel for Mr Strano also says that his interpretation of s 34 makes it more consistent with the rest of Division 3.1, mentioning specifically that s 33, which relates to the impact of fraud or deceit on a limitation period, is not confined to actions based on fraud or deceit but also applies, expressly, to actions in respect of which there has been deliberate concealment of a fact relating to the action. Section 33(1) is as follows:

(a) there is a cause of action based on fraud or deceit; or

(b) a fact relevant to a cause of action or the identity of a person against whom a cause of action lies is deliberately concealed;

the time that elapses after a limitation period fixed by or under this Act for the cause of action begins to run and before the date when a person having (either solely or with other persons) the cause of action first discovers, or may with reasonable diligence discover, the fraud, deceit or concealment, as the case may be, does not count in the reckoning of the limitation period for an action on the cause of action by him or her or by a person claiming through him or her against a person answerable for the fraud, deceit or concealment.

92. I am not convinced that s 33 provides any basis for reading s 34 as proposed by counsel. If anything, it has the opposite effect.

93. Section 33 makes it clear that it applies to specific causes of action based on fraud or deceit, and to other causes of action that have been affected by deliberate concealment of a relevant fact. Section 34, in contrast, specifically applies to "a cause of action for relief from the consequences of a mistake", and does not refer at all to other causes of action in which a mistake may have been involved in the circumstances giving rise to the cause of action. That is, in contrast to s 33 and its application to fraudulent or deceitful conduct in circumstances extending beyond actions based on fraud or deceit, s 34 contains nothing suggesting that it applies generally to causes of action affected by mistakes.

94. Even reading s 34 as proposed at [93] above would not help Mr Strano: mistake would not be an element of any cause of action arising under s 18(7), and such an action could not therefore be described as based on a mistake; nor would the Magistrate's belief that imprisonment was an available option in sentencing Mr Strano seem to be a mistake about the relevant facts rather than a mistake about the law (which is specifically not mentioned in s 33).

95. It seems likely to me that "relief from the consequences of a mistake" is used as a technical legal term. Certainly it seems unlikely that the opening words of s 34(1) are a more or less randomly selected collection of words seen by the drafter as preferable to, but having the same meaning as, the formula adopted in s 33 if that formula were revised to refer to mistake. Such an approach, providing the same coverage in relation to mistake as s 33 provides in relation to fraud and deceit, would produce something along the lines of "If there is a cause of action based on a mistake, or a cause of action in respect of which there has been a mistake about the relevant facts or the identity of a person against whom the action lies". If this is what s 34 means, there does not seem to be any good reason why it is not what s 34 says.

96. There is considerable support for the proposition that "relief from the consequences of a mistake", used in the equivalent provision of the NSW Limitation Act, s 56, is in fact such a technical term. Section 56 is identical except for minor stylistic variations to s 34 of the ACT Limitation Act.

97. In Sinclair v Registrar-General [2010] NSWSC 173, Rein J considered the operation of s 56, as follows:

33 Returning then to the first point, it appears that there are very few cases which consider s 56, and the only one to which my attention was drawn was Hillebrand v Penrith Council [2000] NSWSC 1058. In Hillebrand, the plaintiffs sued the defendant council for wrongfully selling three portions of the plaintiffs' land as a result of mistakes claimed to have been made by the defendant. Austin J held that the plaintiffs' claim was barred by s 14(1)(b) of the Limitation Act, and that s 56 was not available because the plaintiffs sought relief from the consequences of negligence, rather than a mistake (at [48]).

34 The only detailed consideration of a provision very similar to s 56 is found in Phillips-Higgins v Harper [1954] 1 QB 411. In Phillips-Higgins, the plaintiff mistakenly failed to realise that she had been (on her case) underpaid, and that money was due to her. Pearson J (as his Lordship then was), interpreting s 26(c) of the now repealed Limitation Act 1939 (UK), held that that plaintiff's claim was properly characterised as one to recover moneys due to her under a contract, not one for relief from the consequences of a mistake (at 418-419). Pearson J provided three examples of actions which would be caught by the : an action for money paid in consequence of a mistake; an action for rescission or rectification of a contract entered into in consequence of a mistake; and a reopening of an account settled in consequence of a mistake (at 418). has been followed in Australia in at , [119] per Malcolm CJ (Kennedy and Wallwork JJ agreeing), in which it was held that a partner's claim against his former partners that debts owed to him had not been paid was statute-barred, and that the Western Australian equivalent of s 56 was not applicable.

(a) Rein J's conclusion at [38] that the mistake from which relief is sought under s 56 must be the plaintiff's mistake; and

(b) that I have heard nothing that persuades me that s 34 can be interpreted by reference to the Human Rights Act to mean something different;

I am satisfied that Mr Strano's claim against the ACT is not an action for relief from the consequences of a mistake within the meaning of s 34, and therefore that s 34 provides no help to Mr Strano in maintaining this claim against the ACT.

99. I conclude that, whatever the nature of Mr Strano's claim, it was filed after the expiry of the applicable limitation period, and therefore cannot be maintained.

100. I shall hear the parties on the orders necessary to give effect to this conclusion.

I certify that the preceding one hundred [100] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.