Lewis v Australian Capital Territory

• Jurisdiction: Australia Federal only
• Judge: Edelman J.,Keane J.,Kiefel CJ,Gageler J.,Gordon J.
• Judgment Date: 05 August 2020
• Neutral Citation: [2020] HCA 26
• Docket Number: C14/2019
• Date: 05 August 2020
• Year: 2020
• Court: High Court

[2020] HCA 26

HIGH COURT OF AUSTRALIA

Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ

C14/2019

Steven James Lewis

Appellant

and

The Australian Capital Territory

Respondent

Representation

P D Herzfeld with P A Tierney for the appellant (instructed by Ken Cush & Associates)

P J F Garrisson SC, Solicitor-General for the Australian Capital Territory, with H Younan for the respondent (instructed by ACT Government Solicitor)

S P Donaghue QC, Solicitor-General of the Commonwealth, with C J Tran for the Commonwealth, intervening (instructed by Australian Government Solicitor)

Crimes (Sentence Administration) Act 2005 (ACT), Ch 5.

Damages — Tort — False imprisonment — Where appellant convicted and sentenced to 12 months' imprisonment served by periodic detention — Where appellant breached obligations of periodic detention — Where appellant liable to arrest without warrant — Where Sentence Administration Board (“Board”) required by statute to decide to cancel appellant's periodic detention — Where Board's decision was held invalid for lack of procedural fairness — Where appellant unlawfully imprisoned in full-time detention for 82 days following Board's invalid decision — Where appellant's liberty already qualified and attenuated — Where appellant's imprisonment would otherwise have lawfully occurred — Where appellant awarded nominal damages — Whether award of only nominal damages appropriate — Whether appellant entitled to substantial compensatory damages — Whether vindicatory damages available.

Words and phrases — “aggravated damages”, “alternative causes”, “but for”, “causation”, “compensatory damages”, “compensatory principle”, “counterfactual”, “damages”, “exemplary damages”, “false imprisonment”, “lawful authority”, “liability”, “loss”, “material contribution”, “nominal damages”, “periodic detention”, “relief”, “substantial damages”, “substitutionary remedy”, “user principle”, “vindication”, “vindicatory damages”, “wrongful act”.

ORDER

Appeal dismissed with costs.

1 Kiefel CJ and Keane J. The factual and procedural background to the issue presented by this appeal is sufficiently summarised in the reasons of Edelman J. Gratefully accepting his Honour's summary of that background, and of the arguments presented by the parties, we are able to proceed directly to state our reasons for concluding that the appeal should be dismissed.

2 We agree with Edelman J that the appellant's claim for an award of substantial damages cannot be sustained. In particular, we agree that the notion that “vindicatory damages” is a species of damages that stands separately from compensatory damages draws no support from the authorities and is insupportable as a matter of principle. With one qualification, we also agree that the application of the compensatory principle articulated in cases such as Haines v Bendall 1 does not support an award of compensatory damages in this case because a counterfactual analysis in relation to the issue of causation reveals that the false imprisonment caused the appellant no loss that he would not have suffered had he not been falsely imprisoned. In our respectful opinion, however, the appeal should fail in any event, at a point in the analysis anterior to the application of the compensatory principle.

3 The application of the compensatory principle in this case proceeds upon the counterfactual hypothesis that if the appellant had not been falsely imprisoned he would have been imprisoned if the Sentence Administration Board lawfully performed its duty in relation to the cancellation of the appellant's periodic detention order. On this hypothesis, the appellant's position, in the events that actually happened, was no different from the position he would have been in if the Board had not acted unlawfully in cancelling his periodic detention. However, the counterfactual analysis in aid of the application of the compensatory principle is engaged only if it be accepted that the appellant suffered some real loss by the cancellation of his periodic detention and consequent imprisonment. In our respectful opinion, it cannot be accepted that the appellant suffered any real loss at all.

4 As was submitted by the Solicitor-General of the Commonwealth, which was granted leave to intervene in this Court, the invalid decision of the Board did not deprive the appellant of a moment of freedom from imprisonment that he was legally entitled to enjoy. The appellant's argument leaves entirely out of account the sentence of imprisonment which, together with the operation of the Crimes (Sentence Administration) Act 2005 (ACT) (“the Act”), so qualified and attenuated the appellant's right to be at liberty that he suffered no real loss. The appellant is in the position of a plaintiff who has suffered an infringement of a legal right

which, though it entitles the plaintiff to a judgment, gives him or her “no right to any real damages at all” because no real loss has been suffered 2

5 It would be quite wrong, in our respectful opinion, to accept that the appellant's non-compliance with the terms of his sentence was without consequence so far as his right to be at liberty was concerned. In particular, it is not to be thought that his right to be at liberty was the same as that of a person who was not subject to a sentence of imprisonment in the course of execution. The appellant's sentence was in force regardless of any action taken by the Board, whether valid or invalid, in relation to the appellant's periodic detention order. The appellant was unlawfully at large after his first failure to report for detention in that he was liable to be arrested without warrant and brought before the Board to be dealt with under the Act 3. In addition, because the appellant had failed to report for periodic detention on more than two occasions, and the chief executive had referred the matter to the Board, the Board was required to cancel his periodic detention 4; and the appellant had no legal basis to say or do anything that would alter that outcome.

6 In these circumstances, as will be apparent upon reference to the relevant legislation, the appellant's position was analogous to that of the plaintiff in a defamation action who, while able to establish that he or she has been defamed by the defendant, also happens to be a person of general bad reputation. The circumstance that a plaintiff has “a bad reputation which could not be made worse” is not a defence to a claim for defamation; but it is a basis for an award of only nominal, rather than substantial, damages 5. So here, although the appellant had a complete cause of action for false imprisonment because of the unusual course of the litigation between the appellant and the respondent, his right to be at liberty was so qualified and attenuated by the effect of his sentence and the terms of the Act that the impairment of his right to be at liberty could not support an award of other than nominal damages.

The legislation

7 The appellant was sentenced under the Crimes (Sentencing) Act 2005 (ACT) (“the Sentencing Act”). By s 10(2) then in force, a court was authorised to sentence an offender to imprisonment, for all or part of the term of the sentence, if the court was satisfied that no other penalty was appropriate. Section 10(3) provided:

“If the court sentences the offender to imprisonment, the sentence must be served by full-time detention at a correctional centre, unless –

• (a) the court orders otherwise; or

• (b) the offender is released from full-time detention under this Act or another territory law.”

8 Section 11(2) of the Sentencing Act provided that if a court sentenced an offender to imprisonment for an offence:

“The court may, in the order sentencing the offender to imprisonment, set a period of the sentence of imprisonment (a periodic detention period) to be served by periodic detention.”

9 Section 58 of the Act prescribed the circumstances in which an offender would be taken not to have performed periodic detention. Such circumstances included an offender failing to report to perform periodic detention without approval 6, and reporting to perform but returning a positive test sample in response to a direction under the Act to complete an alcohol and drug test 7.

10 Should an offender fail to perform periodic detention on two or more occasions, s 59 of the Act provided that the chief executive “must apply” to the Board for an inquiry under s 66. The purpose of an inquiry under s 66 was “to decide whether an offender has breached any of the offender's periodic detention

obligations” 8. The Board was authorised to conduct an inquiry under s 66 of its own motion or on an application by the chief executive 9

11 If, after conducting the inquiry, the Board determined that the offender had breached any of his or her periodic detention obligations, s 68(2) empowered the Board to take one or more of a number of actions; but if, as occurred in the present case, the chief executive applied to the Board under s 59 for an inquiry and the Board, at the inquiry, decided that the offender had failed to perform periodic detention on two or more occasions, s 69(2) of the Act required that the Board “must, as soon as practicable, cancel the offender's periodic detention under section 68”. If an offender's periodic detention were cancelled, he or she was required to serve the remainder of his or her sentence by way of full-time detention 10.

12 It should also be noted that s 64 of the Act provided that a police officer who believed, on reasonable grounds, that an offender had breached any of the offender's periodic detention obligations was authorised to arrest the offender without a warrant. Under s 64(3) the police officer was obliged to bring the offender before the Board as soon as practicable after arresting the offender.

An impairment...