SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Deng v Australian Capital Territory (No 3)

Citation: [2022] ACTSC 262

Hearing Dates: 3 May 2021, 13 October 2021

Decision Date: 28 September 2022

Before: Loukas-Karlsson J

Decision: See [420]

Catchwords: CIVIL LAW – where plaintiff arrested for breach of interim family
violence order – where order expressed to operate “until all
related charges were finalised” – where charges had been
finalised – where AFP arrested plaintiff – where plaintiff was
remanded in custody by Magistrates Court – whether
Magistrates Court orders to remand the plaintiff were within
jurisdiction – whether the first or second defendant liable for
false imprisonment – whether interim family violence order
revoked – whether first or second defendant negligent in failing
to record or communicate revocation to the AFP – whether first
or second defendant otherwise breached duty of care to the
plaintiff – whether s 17A of the Magistrates Court Act 1930
(ACT) creates a cause of action maintainable against Territory –
held that remand orders were made within jurisdiction – held that
interim family violence order was not revoked – held that plaintiff
was not owed a duty of care – held that even if duty did exist
there was no breach in circumstances where the arresting officer
and the AFP had all information possessed by first and second
defendants and where family violence order was not varied or
revoked
HUMAN RIGHTS – whether s 18(7) of the Human rights Act
2006 (ACT) creates cause of action resulting in a right to
compensation to the plaintiff – whether remand orders made
arbitrarily or without, or in excess of jurisdiction contrary to ss
18(1) or 18(2) of the Human Rights Act – held that remand
orders did not breach ss 18(1) or 18(2) – unnecessary to decide
whether s 18(7) would enable the plaintiff to claim compensation

Legislation Cited: Bill of Rights Act 1990 (NZ)

Civil Law (Wrongs) Act 2002 (ACT) ss 42, 43, 44, 47, 102, 110
Crimes (Sentencing Administration) Act 2004 (ACT) s 17
Crimes Act 1900 (ACT) s 116
Family Violence Act 2016 (ACT) ss 21, 22, 42, 43, 44, 88, 112,
113
Human Rights Act 2006 (ACT) ss 17I, 18, 30, 40, 40B, 70, 74
Human Rights Amendment Act 2008 (ACT)
Human Rights Amendment Bill 2007 (ACT)
Human Rights Bill 2003 (ACT)
Justices Act 1902 (NSW) s 135
Legislation Act 2001 (ACT) s 142
Magistrates Court Act 1930 (ACT) ss 4, 17A, 17F, 18
Cases Cited: Amin v Vidal [2020] ACTSC 227; 94 MVR 285
Andrews v Thomson [2018] ACTCA 53
Astley v Austrust [1999] HCA 6; 197 CLR 1
Brown v Australian Capital Territory [2020] ACTSC 70
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75
NSWLR 649
Caseley v Zampgona [2006] WASC 259
Chase Oyster Bar v Hamo Industries [2010] NSWCA 190; 78
NSWLR 393
D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1
Eastman v The Australian Capital Territory [2019] ACTSC 280
Factory at Chorzow (Germany v. Poland), 1928 P.C.I.J. (ser. A,
No. 17)
Federated Engine Drivers’ and Firemen’s Association of
Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398
Fok Lai Ying v Governor-in-Council [1997] 3 LRC 101
Gedeon v Commissioner of the New South Wales Crime
Commission [2008] HCA 43; 236 CLR 120
Hardy v Rigby [2020] NTSC 42
Jadwan Pty Ltd v Department of Health and Aged Care [2003]
FCAFC 288
Lewis v Australian Capital Territory [2018] ACTSC 19
Manga v Attorney-General [2002] NZLR 65
McDonald v Coles Myer Ltd [1995] NSWSC 67; Aus Torts Rep
81
Melbourne Steamship Co Ltd v Moorehead (1915) 15 CLR 333
Minister for Immigration and Multicultural Affairs v Bhardwaj
[2002] HCA 11; 209 CLR 597
Momcilovic v The Queen [2011] HCA 34; 245 CLR 1
Monaghan v Australian Capital Territory (No 2) [2016] ACTSC
352
Monaghan v Clatzis [2021] ACTSC 4
Morro v Australian Capital Territory [2009] ACTSC 118
Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728
Neilsen v Attorney-General [2001] 3 NZLR 433
New South Wales v Zreika [2012] NSWCA 37
Nigro v Secretary to the Department of Justice [2013] VSCA
213; 41 VR 359
Project Blue Sky Inc v Australian Broadcasting Authority [1998]
HCA 28; 194 CLR 355
R (on the application of Jalloh (formerly Jollah)) v Secretary of
State for the Home Department [2020] 2 WLR 418; UKSC 4
R v Bennett; Ex parte Katelaris (1988) 33 A Crim R 105; 79
ACTR 1
Re Bolton; Ex parte Beane [1987] HCA 12; 162 CLR 514
Roberson v Icon Distribution Investments Ltd [2020] ACTSC
320; 15 ACTLR 256
Slaveski v Smith [2012] VSCA 25; 34 VR 206
Spautz v Butterworth (1996) 41 NSWLR 1
State of New South Wales v Abed [2014] NSWCA 419
Strano v Australian Capital Territory [2016] ACTSC 4
Sullivan v Moody [2001] HCA 59; 207 CLR 562
Thompson v The Queen [1989] HCA 30; 169 CLR 1
Van Alphen v The Netherlands (1990-1992) 3 NZBORR 326
Verryt v Schoupp [2015] NSWCA 128

2
 Woodhouse v Fitzgerald [2021] NSWCA 54
Zaoui v Attorney-General [2004] NZCA 228; (2005) 1 NZLR 577
Zreika v State of New South Wales [2011] NSWDC 67

Texts Cited: International Covenant on Civil and Political Rights, opened for
signature 16 December 1966, 999 UNTS 171 (entered into force
28 January 1993)
Law Officer (Model Litigant) Guidelines 2010

Parties: Atem Deng (Plaintiff)

The Australian Capital Territory (First Defendant)
The Magistrates Court of the Australian Capital Territory
(Second Defendant)
Her Honour Special Magistrate Margaret Hunter (Third
Defendant)
His Honour Magistrate Glenn Theakston (Fourth Defendant)
Representation: Counsel
P Tierney (Plaintiff)
A Hochroth (Defendants)

Solicitors
Ken Cush & Associates (Plaintiff)
ACT Government Solicitor (Defendants)

File Number: SC 377 of 2020

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LOUKAS-KARLSSON J:

Introduction
1. Mr Deng should not have spent 58 days in gaol. That was a failure of the system.
Nevertheless, the proper application of the law does not result in a remedy for Mr Deng
in this case

2. On 30 April 2019, the Plaintiff, Mr Atem Deng, appeared in Court in relation to an

offence contrary to s 116(3) of the Crimes Act 1900 (ACT), being an offence of destroy
or damage property (CC2019/11475). On that date, Magistrate Boss made a court
initiated Special Interim Family Violence Order (SIFVO) pursuant to s 112 of the Family
Violence Act 2016 (ACT) (the Family Violence Act). The order prohibited the Plaintiff
from engaging in certain conduct “until all related charges are finalised”. It is of
significance to note at the outset that the prohibition was not stated to be until the
hearing of the final Family Violence Order but rather “until all related charges are
finalised”.

3. On 30 August 2019, the Plaintiff appeared in Court before Magistrate Lawton where he
was sentenced in relation to the charge of damaging property. He was convicted and
fined $2000. Thus, “all related charges were finalised”.

4. On 22 October 2019, after attending the house of his ex-partner, the Plaintiff was
arrested and charged with an offence of contravening a family violence order contrary
to s 43(2) of the Family Violence Act. As of 22 October 2019, however, the SIFVO that
the Plaintiff was alleged to have contravened did not prohibit the Plaintiff’s conduct as
all related charges had been finalised. There was therefore no relevant contravention.

5. On 23 October 2019, the Plaintiff attended Court and made an application for bail. A
copy of the Statement of Facts, the SIFVO, and the Plaintiff’s criminal history were
provided to the Court. The Plaintiff’s application for bail was refused by Special
Magistrate Hunter and the Plaintiff was remanded in custody.

6. The Plaintiff next appeared in Court on 12 November 2019 before Acting Chief
Magistrate Theakston. On that date, the Plaintiff entered a plea of not guilty and was
again remanded in custody until 9 January 2020 for hearing.

7. On 19 December 2019, following representations by the Plaintiff’s defence counsel, the

prosecution offered no evidence and the charge of contravening a family violence order
was dismissed. In total, the Plaintiff was detained in the Alexander Maconochie Centre
(the AMC) for 58 days.

8. The Plaintiff makes a claim for relief including:

4
 a) a Declaration that, in purporting to remand the Plaintiff in custody on 23
October 2019 and 12 November 2019, the Second Defendant acted without,
or in excess, of jurisdiction;

b) in the alternative, a Declaration setting aside the orders made by the Second
Defendant purporting to remand the Plaintiff in custody;

c) damages from the Second Defendant, or alternatively, the Third and Fourth
Defendants pursuant to s 17A of the Magistrates Court Act 1930 (ACT) (the
Magistrates Court Act) for the injury suffered by the Plaintiff as a result of the
remand orders and/or the pleaded acts of the Third and Fourth Defendants;

d) compensation from the First Defendant pursuant to s 18(7) of the Human

Rights Act 2004 (ACT) (the Human Rights Act);

e) damages from the First Defendant for false imprisonment;

f) damages in negligence from the First Defendant;

g) interest on damages and compensation; and

h) costs.

9. It is noted that on 2 July 2021, Crowe AJ stayed the proceedings against the Third and
Fourth Defendants until further order.

History of Proceedings
10. The Plaintiff filed an Originating Claim and Statement of Claim on 22 October 2020,
naming the First and Second Defendants. The matter was shortly thereafter listed for a
hearing to commence on 3 May 2021.

11. The First and Second Defendants filed a Defence on 12 February 2021. On 16 April
2021, the First and Second Defendants filed an Application in Proceeding seeking to
amend their defence, and an order compelling the Plaintiff to disclose various
economic loss documents. The application was opposed by the Plaintiff, and the matter
came before Elkaim J on 22 April 2021. Elkaim J gave leave for the First and Second
Defendants to file and rely upon the Amended Defence and ordered that the Plaintiff
provide certain documents: Deng v Australian Capital Territory [2021] ACTSC 69.

12. On 3 May 2021, the matter first came before me for hearing. The Plaintiff and
Constable Paul Allan, the informant, gave evidence on that occasion.

13. Following that date questions arose regarding the application of s 17A of the
Magistrates Court Act. The Plaintiff filed an Application in Proceeding on 6 May 2021,

5
 seeking to either strike out paragraph 36(a) of the defence or, alternatively, for Special
Magistrate Hunter and Magistrate Theakston to be joined as defendants in the action.

14. Paragraph 36(a) reads “the Defendants deny the allegation in paragraph 36 of the
Claim and say that: s 17A of the MCA does not confer any right or entitlement to sue
the First Defendant or the Second Defendant for damages”.

15. Paragraph 36 of the Claim reads “The plaintiff is entitled to damages pursuant to s. 17A
of the Magistrates Court Act”.

16. The Application in Proceeding came before me on 14 May 2021. On that date,
following submissions of the parties, I ordered that Special Magistrate Hunter and
Magistrate Theakston be joined as Defendants in the matter. A timetable was set for
the Plaintiff to file and serve an Amended Statement of Claim.

17. On 21 May 2021, the Plaintiff filed and served the Amended Statement of Claims. The
defendants had a number of objections to the amended pleading and, on 7 June 2021,
filed an Application in Proceeding seeking a stay of the proceedings against the Third
and Fourth Defendants pursuant to s 17F of the Magistrates Court Act. As I have
discussed above, that matter came before Crowe AJ on 25 June 2021.

18. On 2 July 2021, Crowe AJ delivered his decision staying the proceedings against the
Third and Fourth Defendants until further order. The matter was listed for directions on
19 July 2021, to allow for the Plaintiff to be given an opportunity to consider the
ramifications of the judgment and the subsequent progression of the substantive
proceedings.

19. On 19 July 2021, filing orders were made by the Registrar and the matter was listed
before me, on 13 October 2021, for the conclusion of the hearing.

20. On 13 October 2021, the parties made closing submissions and I reserved my
decision.

List of Issues
21. The Plaintiff and the Defendants agreed to some extent upon a list of issues.
Nevertheless, a number of additional issues for determination, as well as suggested
amendments, were put forward by the Defendants. The issues list is set out in the table
below:

6
 Para Ref.
Plaintiff,
for where
Issue Defendants,
Issue discussed
No. or Agreed
in
as an issue.
judgment.
General Matters
Was the Special Interim Order, or the conditions contained in the Agreed
1 [63]-[90]
Special Interim Order, revoked on 30 August 2019? Issue
Should the Officers have known that:
(a) The failure to administratively review the Special Interim Order
upon the finalisation of the Related Charge; Defendants’
1A [91]-[103]
(b) The failure to record the Revocation; and Issue
(c) The failure to notify the AFP of the Revocation (if that occurred)
Could cause harm to the Plaintiff?
Was the First Remand Order dated 23 October 2019 made without, or
Agreed
2 in excess of, jurisdiction? If not, was the order void or did it nevertheless [104]-[195]
Issue
provide lawful authority for the detention of the Plaintiff?
Was the Second Remand Order dated 12 November 2019 made
Agreed
3 without, or in excess of jurisdiction? If not, was the order void or did it [104]-[195]
Issue
nevertheless provide lawful authority for the detention of the Plaintiff?

Section 17A of the Magistrates Court Act

On 23 October 2019 and 12 November 2019, should the Second

Agreed
4 Defendant have known that there were no restrictions or conditions [196]-[200]
Issue
imposed by the Special Interim Order to sustain the Breach Charge?
Does s 17A(1) of the Magistrates Court Act give rise to a cause of Agreed
5 [201]-[214]
action for damages against the Second Defendant? Issue
If s 17A(1) of the Magistrates Court Act does give rise to a cause of
Agreed
6 action for damages against the Second Defendant, is such an action [215]
Issue
not maintainable by operation of s 17A(2) of the Magistrates Court Act?
If s 17A(1) of the Magistrates Court Act does give rise to a cause of
action for damages against the Second Defendant, what are the Agreed
7 [216]-[218]
elements of the cause of action, and has the Plaintiff satisfied those Issue
elements so as to be entitled to damages from the Second Defendant?

Section 18(7) of the Human Rights Act 2004

Does s 18(7) of the Human Rights Act give rise to a cause of action for Agreed
8 [219]-[254]
compensation? Issue

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 Were the Remand Orders:
(a) Made arbitrarily, in breach of s 18(1) of the Human Rights Act;
Agreed
9 or [255]-[259]
Issue
(b) Made without, or in excess of jurisdiction, in breach of s 18(2) of
the Human Rights Act?
False Imprisonment
Was there lawful justification for the Plaintiff’s detention from 23 Defendants’
9A [260]
October 2019 to 19 December 2019 pursuant to the Remand Orders? Issue
Negligence
Is it relevant to the Plaintiff’s claim in negligence whether the First
Defendant (as opposed to the Officers), owed the Plaintiff a duty of care Defendants’
9B [261]-[316]
to take reasonable action to prevent the Plaintiff from suffering Issue
foreseeable and not insignificant harm?
Did the First Defendant and the Officers, from 30 August 2019, owe the
Plaintiff a duty to take reasonable care to avoid loss arising from his Plaintiff’s
[261]-[316]
possible arrest and charge with an offence of breaching the Special Issue
10 Interim Order?
Did the First Defendant (if relevant) and the Officers, owe the Plaintiff a
Defendants’
duty of care to take reasonable action to prevent the Plaintiff from [261]-[316]
Issue
suffering foreseeable and not insignificant harm?
If so, what was the content of the duty of care? Plaintiff’s
[261]-[316]
Issue
If so, did the content of the duty of care include taking reasonable care
to:
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(a) Maintain accurate and complete records of orders made, varied, Defendants’
[261]-[316]
and revoked by the Second Defendant; and Issue
(b) Provide timely, accurate, and complete records of orders made,
varied, and revoked to the AFP?
Has the Plaintiff limited his case on negligence to a failure by the
Defendants’
11A Officers not to notify the AFP of “the finalisation of the Special Interim [261]-[316]
Issue
Order”?
Did the First Defendant (if relevant) or the Officers commit any of the Agreed
12 [261]-[316]
Records Breaches in breach of their duty of care? Issue
Was the Plaintiff contributorily negligent such as to justify any reduction Agreed
13 [317]-[331]
in damages? Issue
Relief

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 What, if any, relief should be granted to the Plaintiff, including:
(a) Whether the Declaration sought should be made;
(b) Whether the Remand Orders should be set aside;
(c) The appropriate quantum of general damages for loss of liberty
Plaintiff’s
(if liability be established); [332]-[419]
Issue
(d) The amount of damages for the Plaintiff’s economic loss (if
liability be established); and
(e) Whether to award aggravated damages and the amount of the
14 same (if liability be established)?
What, if any, relief should be granted to the Plaintiff, including:
(a) Whether either of the Declarations sought should be made;
(b) The appropriate quantum of general damages for loss of liberty
(if liability be established); Defendants’
[332]-[419]
(c) The amount of damages for the Plaintiff’s economic loss (if Issue
liability be established); and
(d) Whether to award aggravated damages and the amount of the
same (if liability be established)?

Summary of Evidence

Evidence of the Plaintiff

22. The Plaintiff gave evidence before the Court on 3 May 2021.

23. The Plaintiff is 35 years of age. He was born in South Sudan and moved at a young
age to Kenya, with the assistance of the United Nations. The Plaintiff lived, for about 10
years, in a refugee camp in Kenya with his mother and five sisters. His father and
brothers remained behind in South Sudan where his brothers were conscripted as child
soldiers.

24. The Plaintiff came to Australia on 4 March 2005. He married in 2009. He lived in
Adelaide before moving to Perth, and later to Canberra in December 2013. While in
Perth, the Plaintiff worked full-time in distribution with a company called Cealane. The
Plaintiff has completed a Diploma in Management, an Advanced Diploma of Business,
an Advanced Diploma of Management (Human Resources), and an Advanced Diploma
of Management. He is currently studying Law at the University of New England.

25. The Plaintiff gave evidence that on 22 October 2019 he attended the address of his ex-
partner. He had been drinking alcohol that day but denied being affected by alcohol.
The Plaintiff gave evidence:

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 Do you accept that you were affected by alcohol that day?--- No, because the only problem
I came home, then a knock at the door. Then my missus was there at the house and she
didn’t open the door. Then I went to the garage, and then I see that then the police come
and grab me.

Okay?--- They were just yelling on me.

When the police came in?--- Yes.

When did you hear and see at that time?--- So what – what I heard, they were just yelling
at me because I was just – it encouraged – there’s a bit at the back. The garage is at the
back of the house is there. Then I hear the yelling and all these things and I was sleeping.
Then after that they come – one of them come and grab me from the throat. The they put
their elbow and all these things on me.

26. The Plaintiff was arrested by police and taken to the city watchhouse, where he spent
the night in a cell. The Plaintiff was taken to court the morning of 23 October, he
applied for bail with the assistance of a Legal Aid duty lawyer. Bail was refused and the
Plaintiff was transported that evening to the AMC. Upon arrival at the AMC, the Plaintiff
gave evidence that he was subject to a full-body cavity search.

27. The Plaintiff gave evidence that he was housed in a cell with a man named Richard.
The Plaintiff gave evidence that Richard threatened the Plaintiff, told him to be quiet,
and took items that the Plaintiff had bought from the prison store (commissary).

28. The Plaintiff was moved from the cell that he occupied with Richard into a different
accommodation unit. His new cell mates name was George. The Plaintiff gave
evidence that George told him “I don’t need anyone to talk about me. If someone talks,
I’ll kill that person”. The Plaintiff was frightened of George who was imprisoned for
having committed murder. The Plaintiff gave evidence that there was a toilet in the cell.
George ordered the Plaintiff not to use the toilet at night.

29. The Plaintiff gave evidence that, at one point during his incarceration, there was a
lockdown that lasted for a couple of days. During a lockdown, no prisoners are allowed
to exit their cells and food is given to inmates through a small opening on the door of
each cell. During the lockdown the Plaintiff gave evidence that he felt angry, upset,
humiliated, and isolated.

30. There was an objection to the contextual evidence of the Plaintiff in relation to his time
in custody. It was ultimately accepted by all parties that the damages claimed by the
Plaintiff are not sought for specific instances, and that the matter is one of false
imprisonment with the foundational point that jail is not an ideal place to be and that
cellmates are “often not nice people”.

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31. The Plaintiff gave evidence that he was strip searched six or seven times over the
period of his incarceration. He did not have any visitors, and his grandmother passed
away during his incarceration.

32. The Plaintiff was returned to court on 12 November 2019 where a further remand order
was made by then Acting Chief Magistrate Theakston and the plaintiff was returned to
custody at the AMC. On 19 December 2019, the Plaintiff again appeared in court via
audio-visual link. On that occasion, the prosecution offered no evidence, and the
Plaintiff was subsequently released. The Plaintiff gave evidence that after he was
released he felt unhappy, upset, distressed, felt isolated, and was humiliated (T47.27-
30).

33. The Plaintiff gave evidence that before he was taken into custody in October, he was
working as a labourer on the Court redevelopment site. When the Plaintiff was released
from custody on 19 December, he called his previous employer. They said to him
“You’ve been in the – in prison, so, sorry, we can’t do anything”.

34. The Plaintiff contacted a company and was given one day’s work as a traffic controller
in January 2020. The Plaintiff contacted two further traffic companies, both of which
were unable to offer him any work. He further approached a landscaping company that
he had previously worked with. They were also unable to offer the Plaintiff work. The
Plaintiff was able to get work in April 2020 with a labour hire company called
“EMPlace”.

35. In summary, the Plaintiff was cross-examined on the following matters.

36. The Plaintiff said that he worked at “EMPlace” for three days. The company dissolved
and the Plaintiff no longer had work.

37. The Plaintiff agreed that, at the time of his imprisonment, he was working for a
company called Employ Me. The Plaintiff gave evidence that he had a contract with
Employ Me to provide work at the Courts until 31 March 2020.

38. The Plaintiff commenced working on the Court’s construction site in April 2019 and
concluded working there upon his arrest.

39. The Plaintiff gave evidence that between the period of 19 December 2019 and 31
March 2020, he contacted, unsuccessfully, six organisations seeking work.

40. The Plaintiff gave evidence that he could not recall being served with a SIFVO on 30
April 2019.

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41. The Plaintiff agreed that he was aware that on 30 August 2019 there was no protection
order in place that prevented him from attending his ex-partner’s address. The Plaintiff
agreed that, prior to 30 August 2019, there were bail conditions that prohibited him
from attending his ex-partner’s house. The Plaintiff gave evidence that he was only
aware of the bail condition, not of the protection order. The Plaintiff denied ever
receiving a “Notice of Adjournment Following Finalisation of Related Charges” dated 16
October 2019. The Plaintiff accepted that, on that date, he was staying at the address
which was handwritten on the front of that document.

42. The Plaintiff gave evidence that he was given a copy of the SIFVO when he was
brought to court, after being arrested, on 23 October 2019. The Plaintiff gave evidence
that he understood, on 23 October, that there was no order in place that prevented him
from attending his ex-partner’s address.

Evidence of Constable Paul Allan

43. Constable Paul Allan was called to give evidence by the Plaintiff. A statement of
Constable Allan, dated 10 December 2019, formed part of Exhibit 2.

44. Constable Allan attended the address of the Plaintiff’s ex-partner (the complainant) on
22 October 2019. Upon arrival, he had a conversation with the complainant who stated
that she was unaware if there was an order in place between her and the Plaintiff.

45. Constable Allan gave evidence that he accessed police indices and confirmed that
there was a Family Violence Order in place. Constable Allan gave evidence that certain
aspects of police indices are maintained by a dedicated team, the PROMIS Co-
ordination Team, and that individual case officers maintain day-to-day reports.
Constable Allan agreed that it was important that the police have accurate information
relating to the complete detail of orders.

46. In cross-examination, Constable Allan gave evidence that he would not have seen the
SIFVO itself on police indices, but that he would have had a copy of it before him when
he arrived at the watchhouse.

47. Constable Allan was taken to the Statement of Facts that he prepared for the hearing
on 22 October 2019. He agreed that he was the author of that document and that, at
the time of writing the document, he would have had a copy of the SIFVO in front of
him. Constable Allan agreed that it does not say in the Statement of Facts that the
order was in place until all related charges are finalised. It was not general practice, he
said, for officers to include that information when setting out the conditions of orders in
a Statement of Facts.

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48. Constable Allan could not recall making any enquiry on 22 October 2019 as to whether
or not the related charges referred to in the interim order had been finalised.

49. Constable Allan gave evidence that once a Statement of Facts is prepared it is given to
the watch house Sergeant, along with other evidence that had been collected for the
Sergeant to vet. Constable Allan’s understanding is that the Sergeant reads the
Statement of Facts, as well as the evidence that is provided to him, to satisfy himself
that a lawful investigation has been conducted.

Exhibits List
50. Also in evidence were the following exhibits:

a) The Amended Court Book;

b) The Plaintiff’s Tender Bundle;

c) The Plaintiff’s Economic Loss Bundle;

d) The Plaintiff’s Further Pay Slips;

e) The Defendants’ Tender Bundle;

f) The Agreed Chronology;

g) The Westpac Banking Records;

h) The Plaintiff’s Schedule of Damages;

i) The Schedule of Correspondence;

j) The Defendant’s Schedule of Damages.

General Submissions
51. Counsel for the Plaintiff submitted that, at all material times, the First Defendant (the
ACT), by its employees, including the Director-General of the Justice and Community
Safety Directorate, maintained and was responsible for:

a) Court administration and registry services of the Second Defendant;

b) The maintenance of the records of the Second Defendant, including with

respect to orders as made, varied and revoked by the Second Defendant
under the Family Violence Act; and

c) Providing to the AFP timely, accurate, and compete information about family
violence orders made, varied, and revoked by the Second Defendant to
enable the AFP to exercise its law enforcement functions.

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52. As such, the First Defendant is vicariously liable for the acts and omissions of the
Director-General and the staff of the Justice and Community Safety Directorate
performing administrative functions for the Second Defendant (“the Officers”).

53. The First Defendant is sued:

a) In respect of the acts and omissions of the Officers;

b) In respect to the relief sought:

(i) For compensation under s 18(7) of the Human Rights Act;

(ii) For damages for false imprisonment; and/or

(iii) For damages for loss caused by negligent acts and omissions of the
Officers.

54. The Second Defendant (the Magistrates Court) is sued:

a) In respect of acts taken against the Plaintiff when purporting to sit as the
Family Violence Court on 23 October 2019 and 12 November 2019;

b) For a Declaration that, in purporting to remand the Plaintiff in custody on 23

October 2019 and 12 November 2019, the Second Defendant acted without,
or in excess of, jurisdiction;

c) In the alternative, for a Declaration setting aside order made by the Second
Defendant purporting to remand the Plaintiff in custody; and

d) For damages pursuant to s 17A of the Magistrates Court Act in relation to acts
undertaken without, or in excess of, jurisdiction which caused injury to the
complainant.

55. Counsel for the Defendants submitted that, while it is “regrettable” that the Plaintiff
spent time in custody on a charge which should not have been brought, this does not
mean that the Plaintiff is entitled to compensation from the Defendants, according to
law.

56. It was submitted by the Defendants that the Plaintiff’s claim cannot succeed for five
principal reasons.

57. First, it was submitted the Second Defendant had jurisdiction to make the remand
orders. The only jurisdictional fact required to support the remand orders were the
laying before the Court of a charge against the laws of the Territory. The Court had
jurisdiction to proceed to hear and determine the charge, the charge having been laid
and being regular on its face. The Plaintiff was not detained arbitrarily or other than in

14
 accordance with procedures established by law. The Plaintiff was remanded only upon
the presentation of regular charges against the laws of the Territory for the orthodox
purpose of pre-hearing detention after being given an opportunity to argue for bail.

58. Second, it was submitted the remand orders were in force for the duration of the
Plaintiff’s detention and their existence required officers of the Territory to detain the
Plaintiff. The Plaintiff’s invocation of the Minister for Immigration and Multicultural
Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 (Bhardwaj) decision to assert that the
remand orders, if affected by jurisdictional error, should be treated as non-existent is
overly simplistic. Bhardwaj does not mean that a decision affected by jurisdictional
error is treated as never having existed. The clear line of authority, it was submitted,
shows that no action for false imprisonment may be maintained if the imprisonment
was in execution of any order regularly made by a judicial officer, even without
jurisdiction.

59. Third, it was submitted the contention of the Plaintiff that s 17A(1) of the Magistrates
Court Act provides a statutory cause of action against the Second Defendant is, it was
submitted, misconceived. Section 17A(1) facilitates the bringing of an action against a
Magistrate where the Magistrate has acted without, or in excess, of jurisdiction. It does
not, it was submitted, create any cause of action, less still a cause of action against the
Magistrates Court itself.

60. Fourth, it was submitted s 18(7) of the Human Rights Act does not provide an
independent cause of action. Such has been repeatedly confirmed by judges of this
Court.

61. Fifth, it was submitted the Plaintiff’s contention that there was negligence on the part of
the Officers of the Territory fails on both a principle and factual level. Accepting, for
present purposes, that when a court order apt to affect the liberty of a person is
revoked or varied by a judicial act, a duty of care may arise to communicate the effect
of the subsequent judicial act to relevant authorities. Here, it was submitted, there was
no judicial act. The interim order was not revoked or varied. It imposed conditions only
until all related charges were finalised, which occurred on 30 August 2019. The AFP
had, at all times, access to both the terms of the order and the Plaintiff’s criminal
history. The evidence did not explain how, it was submitted, in those circumstances,
the AFP came to lay the charges. Further, the evidence did not establish that the AFP
was reliant in any way on the administrative staff of the Magistrates Court to inform
them when conditions in an interim family violence order ceased to operate. In the
absence of such evidence the Plaintiff cannot meet his burden of establishing duty or
breach.

15
62. As such, it was ultimately submitted that the detention of the Plaintiff on an
unsustainable charge is not detention for which either of the defendants are liable at
law to compensate the Plaintiff.

ISSUE 1: Was the Special Interim Order, or the conditions contained in the Special
Interim Order, revoked on 30 August 2019?
63. The significance of this issue goes to whether the Second Defendant had jurisdiction to
hear and determine the charge against the Plaintiff of contravening a Family Violence
Order under s 43 of the Family Violence Act (the Breach Charge) when remanding him
in custody.

64. By way of background, on 30 April 2019 the Plaintiff appeared in Court before
Magistrate Boss on a single charge that he, on 29 April 2019, recklessly caused
damage to property belonging to someone else, and that the damage to the property
did not exceed $5,000 (CC2019/4957).

65. On that date, Magistrate Boss granted the Plaintiff bail and made a court initiated
Special Interim Family Violence Order, pursuant to s 112 of the Family Violence Act.

66. The Special Interim Family Violence Order relevantly read as follows:

Pursuant to s 112 of the Family Violence Act 2016, regarding the behaviour of Atem Deng
(“the respondent”) in relation to [redacted] (‘the protected person(s)’) the Court orders that
until all related charges are finalised:

The respondent is prohibited from:

(a) being on the premises at [redacted] where the protected person(s) live(s)

(b) being within 100 metres of the protected person(s);

i. except at a Court or Tribunal proceeding;

(c) locating, or attempting to locate, the protected person(s);

(d) contacting the protected person(s);

i. except through a legal practitioner;

(e) engaging in behaviour that constitutes family violence towards the protected
person(s), except as permitted by this order;

(f) causing someone else to locate or attempt to locate the protected person(s),
except as permitted by this order;

(g) causing someone else to contact the protected person(s), except as permitted
by this order;

(h) causing someone else to do anything that is family violence in relation to the
protected person(s);

16
67. As adverted to earlier, on 30 August 2019, the Plaintiff appeared in Court before
Magistrate Lawton. On that date he was sentenced in relation to the damage property
charge and fined $2000. No orders were made by Magistrate Lawton regarding the
SIFVO.

68. On 16 October 2019, a letter from the Deputy Registrar was sent by post to the Plaintiff
and the protected person. The letter relevantly read:

NOTICE OF ADJOURNMENT FOLLOWING FINALISATION OF RELATED CHARGES

The application for a final Family Violence Order Pursuant to Section 113 of the Family
Violence Act 2006 in this proceeding has been listed as the related charges have now
been finalised.

The application has been adjourned to:

Date: Wednesday, 6 November 2019

Time: 9:45am

Location: Magistrates Court Building …

On this date, a Deputy Registrar will conduct a conference to determine whether the
application can be resolved by consent or has to be decided by a Magistrate… If you or the
other party does not attend the conference, the Court may decide the application in that
party’s absence.

69. On 6 November 2019, the protected person attended Court and a Family Violence
Order was made for a period of 24 months from 6 November 2019. The final order has
the same conditions as the SIFVO.

70. The Plaintiff contends, in his Amended Statement of Claim, that on and from 30 August
2019 the prohibition on the plaintiff engaging in the conduct specified in the SIFVO was
revoked. As such, it was not possible for the Plaintiff to be in breach of an order that did
not exist.

71. Counsel for the Defendants conceded that the related charge (CC2019/4957) was
finalised on 30 August 2019. As such, it was submitted that the prohibitions on the
Plaintiff’s conduct contained in the SIFVO, on their terms, no longer applied after that
date. However, the Order was not revoked and, insofar as the Plaintiff’s case rests on
the proposition that there was a revocation on 30 August 2019, the Court should reject
that proposition.

72. Relevantly, pursuant to s 21 of the Family Violence Act, an interim family violence order
may be made if:

… satisfied that the order is necessary to do either or both of the following until the
application for the final order is decided:

(a) ensure the safety of an affected person from family violence;

17
 (b) prevent substantial damage to an affected person’s property.

Note 1 The court must consider the matters mentioned in s 14 in deciding whether to make
the interim orders

Note 2 An affected person includes any child who hears, witnesses or is otherwise
exposed to family violence committed against another person (see s 8 (1), def family
violence, par (b) and dict).

73. Pursuant to s 112 of the Family Violence Act, a court in a family violence proceeding
may make an interim order against the defendant if satisfied that a court may, if it were
acting on an application for a final order, make an interim order against the defendant.

74. A final order may be made if a court is satisfied that the affected person has
reasonable grounds to fear family violence by the respondent, or if the court is satisfied
that the respondent has used family violence against the affected person: s 34.

75. Pursuant to the Family Violence Act, there are two kinds of interim orders, being a
special interim order, and a general interim order. A special interim order is to be made
if there is a related charge outstanding in relation to the respondent: s 22(1)(a). An
interim order made under s 112 of the Family Violence Act is taken to be a special
interim order: s 113(b).

76. With leave of the Magistrates Court, a respondent to a special interim order may apply
to the Court for review of the special interim order: s 87. On hearing the application for
review, the Magistrates Court may revoke the special interim order only if satisfied that
it is no longer necessary for the protection of the protected person: s 88(2).

77. Section 30 of the Family Violence Act outlines where a special interim order ends:

A special interim order ends only when the first of the following happens:

(1) The special interim order is revoked;

(2) The application for a final order on which the special interim order was made is
discontinued or dismissed;

(3) A final order is made and the respondent is present when it is made;

(4) If a final order is made but the respondent is not present when it is made – the final
order is served on the respondent.

78. Section 31 of the Family Violence Act provides, relevantly:

If a court makes a special interim order, the court must not decide the application for the
final order until all related charges are finalised.

18
79. Counsel for the Defendants correctly submitted that the SIFVO was not revoked on 30
August 2019. Rather, the prohibitions on the Plaintiff’s conduct ceased to have effect
on that date by operation of its terms. The term “revocation” suggests that there was a
judicial act that occurred on 30 August 2019, akin to the revocation or variation of bail.
The order remained in existence until the occurrence of one of the events specified in s
30 of the Family Violence Act. In this instance, when the final order was served on the
Plaintiff on 19 November 2019.

80. The terms of the Family Violence Act make clear that a Special Interim Order ends only
when one of the four specified events outlined at s 30 occurs. The term “revoked” in s
30(a) is not apt to cover a situation where the special interim order simply ceases to
prohibit any conduct on the part of the respondent.

81. Counsel for the Defendants submitted that, while the effect of an order having been
revoked is that the order is no longer in effect, an order can cease to have effect
without there being any revocation. On the analysis of the legislation discussed above
that must be correct.

82. Section 42 of the Family Violence Act expressly contemplates that the conditions
specified in a special interim order may last for a specified period that is shorter than
the period of the order:

A condition in a family violence order may have effect for a period stated in the family
violence order that is shorter than the period of the order.

83. Further there are consequences under the Family Violence Act for the order’s
continued existence even after the prohibitions in it ceased to operate.

84. Counsel for the Defendants correctly submitted that the debate between the parties
may be merely semantic but, to the extent that the Plaintiff’s case rests on the
proposition that there was a revocation on 30 August 2019, that proposition should be
rejected. Further, in relation to the Plaintiff’s negligence case, it was correctly submitted
that the absence of any judicial act on 30 August 2019 revoking the interim order was a
factor that distinguishes this matter from that of Monaghan v Australian Capital
Territory (No 2) [2016] ACTSC 352 (Monaghan).

85. In my view there would be some force in the plaintiff’s submissions that the SIFVO was
revoked by operation of its own terms on 30 August 2019 if the issue related solely to
the ordinary meaning of revoke. However, in this case there is a specific process for
revocation as such under the Family Violence Act as discussed below.

19
86. Nevertheless, it is equally clear that after 30 August 2019 there was no basis to found
the Breach Charge.

87. Counsel for the Plaintiff submitted that it is strictly unnecessary to determine this issue,
given the concession made by the Defendants that as at 23 October 2019, the SIFVO
did not impose conditions on the Plaintiff and, further, as at 23 October 2019, that no
order existed to found the Breach Charge. I do not accept that submission. Whether
the order was revoked (a positive act) is relevant to the issue of negligence.

88. It is apposite at this juncture to refer to s 88 of the Family Violence Act which relevantly
states that:

88 Special interim orders—review

(1) On hearing an application for review under section 87, the Magistrates Court
must, by order—

(a) dismiss the application; or

(b) confirm the special interim order; or

(c) revoke the special interim order; or

(d) set aside the special interim order and make a new interim order.

(2) The Magistrates Court may revoke the special interim order only if the
Magistrates Court is satisfied that the special interim order is no longer
necessary for the protection of the protected person.

89. The Family Violence Act does not define “revoke”. Nevertheless, in the context of
special interim orders, the terms of s 88 support the Defendants’ submission that
revoke requires a positive order of the Magistrates Court – and that such an order to
revoke can only be made where satisfied that the special interim order is no longer
necessary for the protection of the protected person.

90. In conclusion, in answer to the first issue the SIFVO was not revoked on 30 August
2019.

ISSUE 1A (Defendants): Should the Officers have known that (a) the failure to
administratively review the Special Interim Order upon the finalisation of the
Related Charge, (b) the failure to record the Revocation; and (c) the failure to
notify the AFP of the Revocation (if that occurred) could cause harm to the
Plaintiff?
91. The Defendants included this question in their list of issues, submitting that the issue
plainly arises on the pleadings and is relevant to the Plaintiff’s negligence case. If the
issue is answered in the negative, the Defendants submitted that it is difficult to see
how the pleaded duty of care could arise.

20
(A) A failure to administratively review the Special Interim Order
92. Counsel for the Defendants correctly submitted that the Plaintiff’s case suffers from a
lack of precision as to what is specifically the negligent failure alleged to have occurred.
The Defendants submitted that, upon requesting particulars of the phrase
“administratively review”, they were informed that the words and phrase “collectively
have their ordinary English meaning. That is processes and/or mechanisms (often
routine) whereby information before a person is assessed and considered usually by
reference to policy and/or procedures”.

93. No basis has been advanced by the Plaintiff in evidence or argument, as to why a
failure to “administratively review” the SIFVO upon the finalisation of the related
criminal charge could cause harm to the Plaintiff, less still why the Deputy Registrar, or
any other Officer, should have known that this was the case.

94. This matter will be further discussed in dealing with the negligence claim.

(B) The failure to record the Revocation

95. As outlined above in the discussion of issue 1 there was no revocation of the order. As
such, no Officer should have known that a failure to “record” the revocation could
cause harm to the Plaintiff.

96. Further the fact that the related criminal charge had been finalised was recorded. This
occurred both on the Plaintiff’s criminal record, and in a letter sent from the Magistrates
Court to the Plaintiff and the complainant on 16 October 2019, advising that the related
charge had been finalised.

(C) A failure to notify the AFP of the Revocation

97. The order was not revoked. As such, there could not have been a failure to notify the
AFP of the revocation.

98. To the extent that the allegation is that there was a failure to notify the AFP of the fact
that the related criminal charge had been finalised there is no evidence of a failure to
notify the AFP of the fact that the related criminal charge had been finalised.

99. The Plaintiff’s criminal history was updated to show the finalisation of the related
criminal charge, and the AFP, at all times, had access to the Plaintiff’s criminal history.
At least to that extent the AFP was notified by the Court of the finalisation of the related
charge.

100. Additionally, if there was any such failure to notify the AFP, there is no evidence for the
proposition that any Officer should have known that such failure could cause harm to

21
 the Plaintiff. There was no reason for the Deputy Registrar, or any other Officer, to
know or suspect that the AFP, being in possession of the Plaintiff’s criminal history and
the interim order and, thus being aware that the prohibitions applied only until the
related charge was finalised, would nevertheless charge the Plaintiff with an offence of
contravening that interim order.

101. Counsel for the Defendants submitted that the Court should answer “no” to the
questions put forward in Issue 1A.

102. Counsel for the Plaintiff submitted that Issue 1A relates to the Plaintiff’s claim in
negligence. The question addresses foreseeability of harm.

103. As discussed above, this issue will be discussed further under negligence.

ISSUE 2: Was the First Remand Order dated 23 October 2019 made without, or in
excess of, jurisdiction? If not, was the order void or did it nevertheless provide
lawful authority for the detention of the Plaintiff?

ISSUE 3: Was the Second Remand Order dated 12 November 2019 made without,
or in excess of, jurisdiction? If not, was the order void or did it nevertheless
provide lawful authority for the detention of the Plaintiff?
104. Issue 2 and Issue 3 are related. As such, it is appropriate to deal with the issues
together.

105. On 23 October 2019, Special Magistrate Hunter refused the Plaintiff bail and remanded
him in custody until 12 November 2019. A remand warrant was issued pursuant to s 17
of the Crimes (Sentencing Administration) Act 2004 (ACT) (the Sentencing
Administration Act). This warrant required all officers authorised by the Director-
General under the Justice and Community Safety Directorate and Community Services
Directorate to keep the Plaintiff in custody under full-time detention, and to bring the
Plaintiff to Court on 12 November 2019. Collectively, these orders are referred to
throughout this judgment as the “Remand Orders”.

106. On 12 November 2019, the Plaintiff appeared in Court before, as he then was, Acting
Chief Magistrate Theakston. No application for bail was made and the Plaintiff entered
a plea of not guilty. Acting Chief Magistrate Theakston remanded the Plaintiff in
custody to a future date and a second remand warrant was issued under s 17 of the
Sentencing Administration Act.

107. Counsel for the Plaintiff submits that on 23 October 2019, and 12 November 2019, the
Second Defendant had no jurisdiction to make either remand order, and that the orders
were made without, or in excess of, jurisdiction. As such, the detention of the Plaintiff

22
 was not imposed by lawful authority and the Plaintiff is entitled to damages for false
imprisonment.

108. The remand orders were made under s 70 and/or s 74 of the Magistrates Court Act.
The sections provide as follows:

70 Remand of defendant
(1) This section applies if the court considers it is necessary or desirable to
adjourn the hearing of a proceeding for an indictable offence–

(a) because of the absence of witnesses; and

(b) for any other reasonable cause.

(2) The court may–

(a) adjourn the hearing; and

(b) order the remand of the defendant into custody for a stated period; and

(c) order the director-general to arrange for the defendant to be brought before
the court at a stated time and place for the hearing.

Note 1 The court must issue a warrant for the remand of the defendant in the
director-general’s custody (see Crimes (Sentence Administration Act
2005, s 17)

Note 2 The Crimes (Sentence Administration Act 2005, pt 3.2 provides for
the director-general to have custody of the defendant during the remand.

(3) If the period of remand is not longer than 3 days, the order may be made
orally.

(4) Any single period of remand under this section must be no longer than–

(a) 28 days; or

(b) if the defendant chooses to be remanded for a longer period without

review– a longer period that the court considers reasonable.

74 Remand of defendant before decision

The court may, at any time before the court gives its decision in a case, order that
the defendant be remanded in custody.

Note 1 If the court remands the defendant in custody, it must issue a warrant
for the defendant’s remand in the director-general’s custody (see
Crimes (Sentence Administration) Act 2005, s 17)

Note 2 The Crimes (Sentence Administration) Act 2005, pt 3.2 provides for
the director-general to have custody of the defendant during the
remand.

23
109. Counsel for the Plaintiff submitted that this issue necessitates a determination of what
potential jurisdiction was available when the Remand Orders of 23 October and 12
November 2019 were made.

110. The plaintiff submitted that the relevant jurisdiction of the Second Defendant to be
considered in these proceedings is not framed, it was submitted, by the Magistrates
Court Act, but by the Family Violence Act. The Family Violence Act provides the
Second Defendant the power to make family violence orders and, pursuant to s 43,
hear and determine charges for breach of such orders.

111. It was submitted that both s 70 and s 74 of the Magistrates Court Act provide ancillary
powers available to the Magistrates Court to use in aid of the exercise of its
adjudicative jurisdiction in relation to a hearing.

112. Counsel for the Plaintiff submitted that the contention of the defendants as to the basis
of jurisdiction, being a power to place a person on remand, is irreconcilable with the
objects and obligations of the Human Rights Act. It was submitted, that the Second
Defendant, in purporting to issue the Remand Orders, was undertaking an
administrative rather than judicial function: Lewis at [170]-[171]. As such, the Second
Defendants was, at the relevant times, a “public authority” for the purposes of s 40 of
the Human Rights Act.

113. Section 40 of the Human Rights Act provides as follows:

(1) Each of the following is a public authority:

(a) an administrative unit;

(b) a territory authority;

(c) a territory instrumentality

(d) a Minister;

(e) a police officer, when exercising a function under a Territory law;

(f) a public employee;

(g) an entity whose functions are or include functions of a public nature, when
it is exercising those functions for the Territory or a public authority
(whether under contract or otherwise).

Note A reference to an entity includes a reference to a person exercising a

function of the entity, whether under a delegation, subdelegation or otherwise
(see Legislation Act, s 184A(1).

(2) However, public authority does not include–

24
 (a) the Legislative Assembly, except when acting in an administrative
capacity; or

(b) a court, except when acting in an administrative capacity.

114. It was contended that the exceptions present in s 40(2) do not apply. Accordingly, the
Second Defendant was bound by s 40B of the Human Rights Act, which provides:

(1) It is unlawful for a public authority–

(a) to act in a way that is incompatible with a human right; or

(b) in making a decision, to fail to give proper consideration to a relevant

human right.

(2) Subsection (1) does not apply if the act is done or decision made under a law
in force in the Territory and–

(a) the law expressly requires the act to be done or decision made in a
particular way and that way is inconsistent with a human right; or

(b) the law cannot be interpreted in a way that is consistent with a human
right.

Note A law in force in the Territory includes a Territory law and a

Commonwealth law.

(3) In this section:

public authority includes an entity for whom a declaration is in force under

section 40D.

115. It was further submitted that, by virtue of s 30 of the Human Rights Act, which provides
“so far as it is possible to do so consistently with its purpose, a Territory law must be
interpreted in a way that is compatible with human rights”, the obligation in s 40B is
relevant to the scope of the jurisdiction of the Magistrates Court.

116. Counsel for the Plaintiff submitted that it “is simply untenable to contend that the farce
of a baseless prosecution entertained by the Magistrates Court in the face of its own
error on the record establishes the jurisdictional foundation to remand a defendant with
impunity as being complaint with s 18(2) of the Human Rights Act”.

117. Similarly, it was submitted that it is patently wrong to contend that the general power to
commence a criminal proceeding by laying an information under s 24 of the
Magistrates Court Act addresses, let alone defines, the scope of jurisdiction of the
Magistrates Court.

25
118. On the hearing of a charge under s 43 of the Family Violence Act, it was submitted that
it is quite clear that the existence of a “family violence order” operates as a condition
precedent, or a jurisdictional fact, to the hearing and determination of that charge.

119. A jurisdictional fact is, it was submitted, in general terms, “a criterion the satisfaction of
which enlivens the exercise of the statutory power or discretion in question”: Gedeon v
Commissioner of the New South Wales Crime Commission [2008] HCA 43; 236 CLR
120 at [43] see also Chase Oyster Bar v Hamo Industries [2010] NSWCA 190; 78
NSWLR 393.

120. The High Court has observed that the determination of whether or not a Court has
jurisdiction is the first duty of the Court: Federated Engine Drivers’ and Firemen’s
Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398. However, it
was submitted by the plaintiff that, contrary to the Defendants contention, that duty
does not engage a right to use a statutory power to detain a person whilst that
determination is taking place: Re Bolton; Ex parte Beane [1987] HCA 12; 162 CLR 514
at 528:

121. Counsel for the Plaintiff submitted that the non-satisfaction of the relevant jurisdictional
fact in these proceedings (due to the non-existence of the family violence order) was
not something that originated from the mistake of a third party. Rather, it was a mistake
as to the terms of the Second Defendant’s own SIFVO.

122. The non-satisfaction of a jurisdictional fact, of which the Second Defendant should
have been aware, has, it was submitted, two consequences.

123. Firstly, it determines that the Second Defendant acted without or in excess of
jurisdiction in relation to the subject matter of the proceeding before it. Therefore, any
legal authority to support the imprisonment of the Plaintiff is removed, liability is
established for the false imprisonment of the Plaintiff, and the Plaintiff is entitled to an
award of damages. Secondly, it supports a claim for compensation under s 17A of the
Magistrates Court Act. Each consequence, it was submitted, leads to the conclusion
that the Plaintiff was the subject of an error which visited a very serious miscarriage of
justice on him by an unlawful imprisonment.

124. Further the plaintiff submitted reliance by the defendants on Thompson v The Queen
[1989] HCA 30; 169 CLR 1 (Thompson) concerning the question of jurisdiction is
misplaced as Thompson was decided in 1989, fifteen years before the Human Rights
Act, in a common law context.

125. The plaintiff submitted that the absence of a key jurisdictional fact goes to the heart of
jurisdiction as a “function of determining guilt” in respect of the Breach Charge.

26
126. Counsel for the Plaintiff submitted on the significance of the Human Rights Act in
determining the scope of the Second Defendant’s jurisdiction, including that:

a) Sections 18(1) and (2) contain the substantive provisions that: “in particular,
no-one may be arbitrarily arrested or detained” and “no-one may be deprived
of liberty, except on the grounds and in accordance with the procedures
established by law”.

b) Section 30 of the Human Rights Act requires the Magistrates Court Act be
interpreted, so far as it is possible to do so consistently with its purpose, in a
way which is consistent with these rights;

c) Section 40B(1)(a) of the Human Rights Act made it unlawful for the
Defendants to act in a way that is incompatible with a human right; and

d) Section 40(2) of the Human Rights Act allows the Plaintiff’s substantive human
rights to be the subject of the claims for relief in respect to the Second
Defendant’s orders, and defines terms of the Plaintiff’s common law right not
to be falsely imprisoned.

127. Those matters it was submitted are matters that stand against the reliance on
Thompson.

128. It was submitted by the plaintiff that the Second Defendant did not undertake the first
duty of the Court, being to determine jurisdiction. Had it done so, a simple reading of
the terms of the court’s file would have alerted the court of the finalisation of the SIFVO
on 30 August 2019, the likelihood that the AFP had not been apprised of that
consequence, and the want of jurisdiction for the court.

129. The Plaintiff further submitted that there is “something surreal” in the Defendants’
attempt to blame the AFP for a mistake that was obviously made by the Second
Defendant. No statutory or common law authority supports such a proposition. To the
contrary, it was submitted, the very concept of “jurisdictional error” involves error.
Moreover, the first duty of the Second Defendant to determine its jurisdiction cannot be
outsourced to the AFP prosecuting authority, particularly when the AFP laid an
information because a failure of the officers to provide correct information to it.

130. The Plaintiff submitted that Thompson was determined in respect of the exercise of
power by the Supreme Court of the ACT as a superior court of record and not an
inferior court, such as the Second Defendant. Thompson was decided three years
before Bhardwaj and does not engage with the effect of jurisdictional error committed
by an inferior court: see also Lewis.

27
131. A contention relied on by the Defendants to provide lawful authority for the detention of
the Plaintiff is the “warrant contention”.

132. First, the plaintiff submitted that the warrant contention was not pleaded by the
Defendants.

133. Second, the plaintiff submitted no evidence has been adduced by the defendants to
sustain the warrant contention.

134. In any event, it was submitted, as a general common law principle, the warrant
contention does not engage with the relevant binding Australian authority as to the
consequences of a legally informed decision of an inferior court, and the rights of the
Plaintiff under ss 18(1), 18(2), and 18(7) of the Human Rights Act and s 17A of the
Magistrates Court Act.

135. The warrant contention fails to engage with the nature of the warrants that were issued
in relation to the Plaintiff. Sections 16 and 19 of the Sentencing Administration Act
establish that it is a remand order (not a warrant) which authorises detention of a
remandee. The remand orders are challenged by the Plaintiff.

136. The Plaintiff further submitted that real issue between the parties is the question of
jurisdiction of the Second Defendant to make the remand orders and that the warrant
contention has no application to that issue.

137. Finally, counsel for the Plaintiff submitted that, in relation to the claim in tort for false
imprisonment without lawful authority for that detention, the tort is made out and the
Plaintiff is entitled to damages.

138. In conclusion, it was further submitted that, subject to one exception, the decision of an
inferior court which is affected by jurisdictional error may be regarded as having no
legal effect at all: Bhardwaj. The exception is that the relevant statute may give rise to
some consequence of an invalid decision (or order): Jadwan Pty Ltd v Department of
Health and Aged Care [2003] FCAFC 288 (Jadwan).

Consideration
139. Counsel for the Defendants submitted that the Remand Orders were made within
jurisdiction. Further that even if the Court were to find that the Magistrates Court lacked
jurisdiction, the warrants and orders provided lawful justification for the Plaintiff’s
detention.

28
Were the Remand Orders made without, or in excess of, jurisdiction?
140. The Plaintiff’s claims in false imprisonment, under s 17A of the Magistrates Court Act
and s 18(7) of the Human Rights Act rest on the proposition that the remand orders
made by the Magistrates Court were made without, or in excess, of jurisdiction.

141. In my view the Remand Orders were made within jurisdiction for the following reasons.

142. Thompson is relevant to this question. In Thompson at 21-22, Brennan J observed:

Of course, the judge has jurisdiction to inquire into any facts that are necessary to
determine the court’s jurisdiction to hear and determine the charge but, in this country, I do
not think that jurisdiction to hear and determine a charge depends upon the fact – as
distinct from the allegation – that the crime occurred within a particular territory.

The term “jurisdiction” in this context is attended with a certain ambiguity. It may refer to the
authority of the court to hear and determine the issues arising in a criminal trial, or it may
refer to the power of the court to enter a judgment of conviction and to impose a penalty
after hearing and determining the issues… if the charge alleges the commission of an
offence against the law administered by the court (the law of the forum), the court has
jurisdiction to hear and determine the charge, but when an issue is raised as to the locality
of the offence the jury may have to decide the issue in order to determine whether the
conduct charged falls within the territorial ambit of the law of the forum. Locality then
becomes a fact on which liability to conviction depends…

Although the locality of an element of the offence charged may affect the power to convict
and punish, the jurisdiction of the court to hear and determine the charge depends on what
the indictment charges …

143. Similarly, at 33-34, Deane J observed:

The criminal jurisdiction of the Supreme Court (ACT) Territory … exists in a case where the
accused is charged with murder under that law regardless of whether, in the event, the
evidence establishes all or any of the ingredients of the offence charged.

144. As explained in Thompson, the Court’s jurisdiction to try a case does not depend upon
a guilty verdict. Rather, as set out above, jurisdiction in that sense depends upon the
contents of the charge. The Plaintiff’s attempts to distinguish Thompson do not, in my
view, withstand scrutiny. The principle in Thomson is not confined to locality.

145. Similarly, in R v Bennett; Ex parte Katelaris (1988) 33 A Crim R 105; 79 ACTR 1 at

120, Gallop J held that:

It follows that where a person is in fact before the court, whether brought there by
summons or by warrant, or for any other reason, an information, oral or written, may
thereupon be laid and if this is done, there is justification to try the offence. But the
information must be laid to give the magistrate jurisdiction.

146. Therefore, it is not correct to state that the function of determining guilt in respect of the
breach charge could not have been undertaken by the Second Defendant. Had the
charge not been withdrawn, the Magistrates Court would have had jurisdiction to hear
and determine the charge. The Plaintiff would have been acquitted at hearing having

29
 identified that the prohibitions in the SIFVO applied only until the related criminal
charge was finalised, and that this had occurred by the time of the alleged offence.
That is that a necessary element of the offence could not be established.

147. The Plaintiff sought to distinguish Thompson on a further basis, submitting that the
High Court did not deal with the question of the use of remand powers by a court, and
the consequence of jurisdictional error when such powers were used without, or in
excess of, jurisdiction. However, Brown v Australian Capital Territory [2020] ACTSC 70
(Brown), which followed Thompson, did deal with these issues.

148. In Brown at [75], Murrell CJ held, consistent with Thompson, that:

The fact that, ultimately, the prosecution does not prove an allegation that an offence
occurred within the territorial jurisdiction of a court does not retrospectively deprive the
court of jurisdiction to hear the proceedings, although it does deprive the court of
jurisdiction to convict and sentence for the alleged offence.

149. Murrell CJ found that the actions of individual magistrates, the Court, and the Director-
General were lawful and that the Plaintiff’s claim under s 18(7) of the Human Rights Act
failed at the threshold, as the Plaintiff could not establish that his detention was
“unlawful” within the meaning of s 18(7). This Court in Brown applied the principle in
Thompson notwithstanding the existence of the Human Rights Act.

150. Although both Thompson and Brown concerned the issue of locality the principle for
which both cases stand – that the jurisdiction to hear and determine a criminal charge
depends upon what is alleged in that charge, regardless of what may ultimately be
proved at trial – is a broader principle.

151. That principle means that where, as here, a person was mistakenly charged with
breaching an order that did not have the effect alleged in the charge, the Court has
jurisdiction to hear and determine that charge. That jurisdiction extends to the making
of remand orders pending the final hearing.

152. The submission of the Plaintiff that the Magistrates Court lacked jurisdiction, cannot
stand in the face of Thompson and Brown. The jurisdictional fact upon which the
Magistrates Court’s jurisdiction depends is not the existence of an order that imposes
conditions upon the Plaintiff, rather the existence of information alleging that the
plaintiff had contravened such an order.

153. The Plaintiff submitted that Thompson was determined in respect of the exercise of
power by the court and not in relation to an inferior court, was decided three years
before Bhardwaj, and did not engage with the effect of jurisdictional error committed by
an inferior court.

30
154. Brown, however, was determined in respect of the exercise of power by the
Magistrates Court. Further, there is no reason why the principle in Thompson would
apply any differently to an inferior court than it does to a superior court. Further still,
nothing in Bhardwaj overrules or qualifies Thompson. Thompson goes to whether there
is jurisdictional error, rather than the effect of any jurisdictional error.

155. In my view, the proper application of Thompson and Brown compel the conclusion that
the remand orders were made within jurisdiction. The Magistrates Court had before it a
charge alleging an offence against a law of the Territory. The Court had jurisdiction to
hear and determine that charge. The Court therefore had jurisdiction to exercise its
powers incidental to such a hearing, including its statutory powers to remand the
Plaintiff in custody.

156. Further, s 26 of the Magistrates Court Act provides that:

An information may be laid before a magistrate in any case where a person has
committed or is suspected of having committed, in the ACT, an indictable offence
or an offence that may be dealt with summarily as provided in section 19.

157. In conclusion, the laying of the information alleging that the plaintiff had committed the
offence of contravene family violence order enlivened the Magistrates Court’s
jurisdiction to hear and determine that charge. That, in turn, engaged the powers of the
Magistrates Court to remand the plaintiff in custody.

Were the Remand Orders made without jurisdiction in light of the Human Rights Act?
158. The Plaintiff places reliance on the Human Rights Act in submitting that the Magistrates
Court lacked jurisdiction to make the Remand Orders. The argument appears to be that
if the Plaintiff’s remand could be characterised as “arbitrary” or as having been done
“not on the grounds and in accordance with the procedures established by law” within
the meaning of sections 18(1) and 18(2) of the Human Rights Act, then the Remand
Orders must have been made without jurisdiction.

159. Section 30 of the Human Rights Act is the equivalent of s 32 of the Victorian Charter of
Human Rights and Responsibilities Act 2006 (Vic) (the Charter). That provision has
been held to be an ordinary rule of interpretation: see Nigro v Secretary to the
Department of Justice [2013] VSCA 213; 41 VR 359 at [85], referring to Momcilovic v
The Queen [2011] HCA 34; 245 CLR 1 (Momcilovic).

160. The provision requires “statutes to be construed against the background of human
rights and freedoms set out in the Charter in the same way as the principle of legality
requires the same statutes to be construed against the background of common law
rights and freedoms”: Momcilovic at [51] per French CJ. However, it does not “require

31
 or authorise a court to depart from the ordinary meaning of a statutory provision, or the
intention of Parliament in enacting the provision”: Slaveski v Smith [2012] VSCA 25; 34
VR 206 at [20].

161. Further, in Andrews v Thomson [2018] ACTCA 53, the Court of Appeal observed at
[45]:

… it is important to observe that s 30, by its very wording, contains a caveat, expressed in
the words “So far as it is possible to do so consistently with its purpose, a Territory law…”.
Accordingly, the HRA does not change an interpretation but rather assists with
interpretation of a section provided that this assistance can be given in a way that is not
inconsistent with the section’s purpose.

162. No intention can be discerned from the provisions of the Human Rights Act that any
breach of a human right will deprive the court of jurisdiction. Indeed, the terms of the
Act suggest otherwise. Section 40B provides that it is unlawful for a public authority
(including a court acting in an administrative capacity: s 40(2)(b)), to act in a way that is
incompatible with a human right. Section 40C permits proceedings to be taken in
respect of a contravention of s 40C and provides that any relief except damages may
be granted in such proceedings.

163. The sections provide:

40B Public authorities must act consistently with human rights

(1) It is unlawful for a public authority—

(a) to act in a way that is incompatible with a human right; or

(b) In making a decision, to fail to give proper consideration to a

relevant human right.

(2) Subsection (1) does not apply if the act is done or decision made

under a law in force in the Territory and—

(a) the law expressly requires the act to be done or decision made in a
particular way and that way is inconsistent with a human right; or

(b) the law cannot be interpreted in a way that is consistent with a human
right.

Note A law in force in the Territory includes a Territory law and a

Commonwealth law.

(3) In this section:

public authority includes an entity for whom a declaration is in force under

section 40D.

40C Legal proceedings in relation to public authority actions

32
 (1) This section applies if a person—

(a) claims that a public authority has acted in contravention of section 40B;
and

(b) alleges that the person is or would be a victim of the contravention.

(2) The person may—

(a) start a proceeding in the Supreme Court against the public authority; or

(b) rely on the person’s rights under this Act in other legal proceedings.

(3) A proceeding under subsection (2) (a) must be started not later than 1 year
after the day (or last day) the act complained of happens, unless the court
orders otherwise.

(4) The Supreme Court may, in a proceeding under subsection (2), grant the relief
it considers appropriate except damages.

(5) This section does not affect—

(a) a right a person has (otherwise than because of this Act) to seek relief in
relation to an act or decision of a public authority; or

(b) a right a person has to damages (apart from this section).

Note See also s 18 (7) and s 23.

(6) In this section:

public authority includes an entity for whom a declaration is in force under

section 40D.

164. If the Magistrates Court was acting in contravention of s 40B, proceedings could issue
under s 40C to restrain the conduct in contravention. There is no need to construe the
breach as also depriving the Court of jurisdiction. Nor is there any provision in the
Human Rights Act to the effect that an act done in breach of s 40B is void, or has no
effect: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28;
194 CLR 355 at [91], where McHugh, Gummow, Kirby and Hayne JJ said:

An act done in breach of a condition regulating the exercise of a statutory power is not
necessarily invalid and of no effect. Whether it is depends upon whether there can be
discerned a legislative purpose to invalidate any act that fails to comply with the condition.
The existence of the purpose is ascertained by reference to the language of the statute, its
subject matter and objects, and the consequences for the parties of holding void every act
done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this
context often reflects a contestable judgment. The cases show various factors that have
proved decisive in various contexts, but they do no more than provide guidance in
analogous circumstances. There is no decisive rule that can be applied; there is not even
a ranking of relevant factors or categories to give guidance on the issue.

(Citations omitted.)

33
165. Section 74 of the Magistrates Court Act provides, that the court may, at any time before
it gives its decision in a case, order that the defendant be remanded in custody. These
words confer a broad power to remand.

166. A remand order that contravenes ss 18(1) or (2) of the Human Rights Act may involve
a breach of s 40B and give rise to a claim for relief under s 40C. It is not, by reason of
such contravention alone, made without jurisdiction.

167. Further, the Remand Orders in the present case were not made, either arbitrarily, or
not on the grounds and in accordance with procedures established by law.

168. As to arbitrariness, detention will be arbitrary if it is capricious, unreasoned, without

reasonable cause, made without reference to an adequate determining principle, or
without following proper procedures established: Neilsen v Attorney-General [2001] 3
NZLR 433 (Neilson) at 434.

169. The detention in the present case, pursuant to the Remand Orders, was not capricious
or unreasoned. The Plaintiff was brought before the Court on 23 October 2019,
following his arrest, and a duty lawyer represented him. The duty lawyer sought and
obtained an opportunity to confer with the Plaintiff. The duty lawyer applied for bail on
behalf of the Plaintiff, and this was opposed by the prosecutor. The Plaintiff was
formally charged with the offence for which he was brought before the Court. Special
Magistrate Hunter refused bail, giving ex tempore reasons for her decision.

170. No complaint has been made that her Honour failed to consider any of the matters
prescribed for consideration in relation to bail under s 22 of the Bail Act 1992 (ACT)
(Bail Act). When the matter returned to Court on 12 November 2019, he was legally
represented, entered a plea of not guilty and did not apply for bail.

171. The detention was not made without reasonable cause, without reference to principle,
or without following proper procedures. The Plaintiff was charged in Court with an
offence against a law of the Territory, a charge to that effect having been laid before
the Court. The offence with which the Plaintiff was charged was serious. Due
consideration was given to matters relevant to whether or not bail should be granted in
accordance with the Bail Act.

172. It is correct that the SIFVO no longer imposed prohibitions on the Plaintiff’s conduct on
22 October 2019. This does not render the Remand Orders arbitrary. The fact that the
SIFVO no longer imposed prohibitions on the Plaintiff’s conduct was not brought to the
Court’s attention on either 23 October 2019 or 12 November 2019 by either
prosecution counsel or defence counsel.

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173. The Remand Orders were made on the grounds and in accordance with the
procedures established by law. There was no breach of s 18(2) of the Human Rights
Act in this case.

174. The Plaintiff referred to the decision of Hammond J in Manga v Attorney-General

[2002] NZLR 65 (Manga) to submit that detention will be arbitrary if it is unjust. At [40],
referring to jurisprudence on Article 9 of the International Covenant on Civil and
Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into
force 28 January 1993) (ICCPR), Hammond J stated that the essence of the position
taken in the tribunals, the case law, and the juristic commentaries is that under the
ICCPR “all unlawful detentions are arbitrary; and lawful detentions may also be
arbitrary, if they exhibit elements of inappropriateness, injustice, or lack of predictability
or proportionality.”

175. In Zaoui v Attorney-General [2004] NZCA 228; (2005) 1 NZLR 577, Hammond J
referred to the statement of Richardson P in Neilsen as being the “leading statement, at
a general level” in relation to the term “arbitrary” in the Bill of Rights Act 1990 (NZ).
Hammond J referred to his decision in Manga as well as the decision of Lord Cooke of
Thorndon, in delivering the advice of the Privy Council in Fok Lai Ying v Governor-in-
Council [1997] 3 LRC 101, Lord Cooke referred to a decision of the UN Human Rights
Committee, Van Alphen v The Netherlands (1990-1992) 3 NZBORR 326 at 112-113,
saying:

The relevance of the case for present purposes is that the Committee said, albeit referring
directly to Art 9, that arbitrariness is not to be equated with ‘against the law’ but must be
interpreted more broadly to include elements of inappropriateness, injustice, and lack of
predictability. This means, the Committee said, that a remand in custody pursuant to lawful
arrest must not only be lawful but reasonable in all the circumstances.

176. Hammond J commented, at [184], that there was a fairly close concordance between
Lord Cooke’s formulation, and that which his Honour had suggested in Manga.

177. The notion of detention being “unjust” and therefore arbitrary is not at large. It is closely
linked with the other concepts seen as going to whether or not a lawful detention may
nonetheless be arbitrary, being whether the detention was imposed capriciously,
without reasonable cause, or unreasonably. The Plaintiff’s detention was not so
imposed.

178. It is not unknown in the law for a person to be remanded in custody to answer charges
which are ultimately not established. Further it is not unknown in the law for charges to
be withdrawn prior to trial due to the discovery of facts or evidence previously unknown

35
 which renders the continued prosecution unsustainable. This does not of itself render
the remand arbitrary. The answer to this question is no.

179. The remand orders were not made without jurisdiction in light of the Human Rights Act.

What is the relevance of “the first duty of a Court” submission in this case?
180. The Plaintiff submitted that determining jurisdiction is the first duty of a court, that the
Second Defendant did not undertake that duty in the case of the Plaintiff, and that, had
it done so, a simple reading of the Court’s file would have alerted the Court to the
finalisation of the SIFVO on 30 August 2019.

181. A court must be satisfied that it has jurisdiction. That does not require a court, in every
matter brought before it, no matter how routine, to closely interrogate its records for
irregularity where none has been brought to the Court’s attention by either party.

182. Particularly in the case of courts of summary jurisdiction, it has been held repeatedly
that judicial officers are entitled to rely upon the information presented to them by the
parties’ legal representatives. For example, in Caseley v Zampgona [2006] WASC 259,
Blaxell J stated at [17]:

[I]t was not in any way the fault of the learned Magsitrate that no consideration was given
to spent conviction orders. When a defendant is legally represented, the court is obliged to
rely upon counsel (including duty counsel) to put forward any matter or submission that
needs to be taken into account by way of mitigation of penalty. In a high volume
jurisdiction such as the Magistrates Court, the Bench is simply not in a position to
second guess counsel or to make any assumptions as to inadequacies in the standard of
representation. Of necessity, the courts must be highly reliant upon counsel fulfilling
their proper role in ensuring that justice is done.

(emphasis added)

183. Similarly, in Hardy v Rigby [2020] NTSC 42 at [42], Hiley J observed:

Particularly in a busy court such as the Local Court, the judge is entitled to rely on counsel
to clearly identify materials relied upon and what use is to be made of such materials, when
presenting submissions on sentence.

184. These remarks are reflective not only of the relationship of trust between the bench and
the bar, and the practical and logistical realities of a busy court of summary jurisdiction,
but also of the fact that the function of investigating and gathering information for a
court to rely upon is the province of counsel. Relevantly, in D’Orta-Ekenaike v Victoria
Legal Aid [2005] HCA 12; 223 CLR 1 at [105], McHugh J stated;

Without an independent Bar, investigating and arguing the legal rights and duties of
members of the public in the courts and assisting in the administration of justice, the cost of
administering justice would increase dramatically. Government functionaries, or perhaps
the judges themselves, would have to take on the role of the advocates. They would
have to engage in many out-of-court activities that are now being carried out by members

36
 of the Bar. That would include investigating, researching and presenting claims and
defences in the great majority of cases.

(emphasis added)

185. In this case, there was no reason for the Magistrates Court, on 23 October 2019 or 12
November 2019, to make any enquiry into jurisdiction or the sufficiency of the charge
laid. The Statement of Facts prepared by the AFP stated the prohibitions contained in
the SIFVO but omitted the words “until all related charges are finalised”. Again, the
Court was entitled to expect the Statement of Facts to properly set out the facts
supporting the charge.

186. Relevantly, in Zreika v State of New South Wales [2011] NSWDC 67 at [144],
Walmsley DCJ stated:

… Typically, the prosecutor tenders the fact sheet as a fair summary of the police
case. In a busy Local court, it may be the only document the magistrate is given
when bail is applied for. One can see why it is of absolute important for a facts sheet to
be fair and accurate. As a police prosecutor relies on a facts sheet to be accurate, there is
obviously an obligation on the officer or officers with the task of preparing the facts sheet,
to ensure it fairly and accurately sets out the facts disclosed by investigations up to the
court date. …

(emphasis added)

187. An appeal by New South Wales against Walmsley DCJ’s judgment was dismissed
except in relation to the calculation of the award of exemplary damages which was
reduced on appeal: New South Wales v Zreika [2012] NSWCA 37.

188. Similarly, in Monaghan v Clatzis [2021] ACTSC 4, McWilliam AsJ stated at [55]:

Magistrates are entitled to rely upon the legal representatives and in particular, the
prosecution, to ensure that the charge as particularised is in fact that which is prosecuted.

(emphasis added)

189. In this case, the submission regarding the “first duty of a court” does not assist the
Plaintiff. In that neither Special Magistrate Hunter nor Acting Chief Magistrate
Theakston, were duty bound to “second-guess” or doubt the legal representatives
before them.

Was there an abuse of process?

190. The Plaintiff submitted that the prosecution of a “baseless charge” against him was an
abuse of process and that a court does not have jurisdiction to hear a proceeding that
is an abuse of process.

191. The submission that the charge was an abuse of process is not established for the
following reasons. The charge was laid by the AFP apparently in good faith, and in

37
 ignorance that the prohibitions in the SIFVO did not apply at the time of the Plaintiff’s
arrest. Nothing to the contrary was suggested to Constable Allan in cross-examination.
The charge was based upon factual allegations set out in the Statement of Facts. I
conclude that there was no abuse of process.

What is the status of the Warrants and Orders as lawful justification for the detention of the
Plaintiff?
192. I have not found that the Magistrates Court lacked jurisdiction. For completeness I note
that counsel for the Defendants submitted that if there were a lack of jurisdiction it does
not follow that the Plaintiff’s detention was unlawful. Further, the fact of the orders
having been made, and warrants issued pursuant to those orders, provided lawful
justification for the detention of the Plaintiff. It is unnecessary to decide this question
having found that there was jurisdiction.

193. Ultimately, I have concluded that the First and Second Remand Orders dated 23
October 2019 and 12 November 2019 were not made without, or in excess of
jurisdiction. It is therefore neither appropriate nor necessary to decide the warrant
contention.

194. In conclusion, I underline that the fact that one of the elements of the offence that the
Plaintiff was charged with is not made out, does not deprive the Court of jurisdiction to
decide the charge itself but of the authority to convict and punish.

195. The answer to Issues 2 and 3 is no. The First and Second Remand Orders were not
made without or in excess of jurisdiction.

ISSUE 4: On 23 October 2019 and 12 November 2019, should the Second

Defendant have known that there were no restrictions or conditions imposed by
the Special Interim Order to sustain the Breach Charge?
196. The Plaintiff submitted that on 23 October 2019 and 12 November 2019, the Second
Defendant ought to have known, from its own records, of:

a) the Special Interim Order;

b) the finalisation of the related charge;

c) the revocation; and

d) the fact that there were no restrictions or conditions imposed on the Plaintiff by
the Special Interim Order to sustain the breach charge.

38
197. This issue, as pleaded, appears to go to the question of jurisdiction, as it relates to the
claim against the Magistrates Court purportedly brought under s 17A(1) of the
Magistrates Court Act.

198. The Plaintiff’s framing of the question as to whether the Magistrates Court should have
been expected to know, but did not know, “the content and effect of its own order”,
does not deal with the fact that the jurisdiction of the Magistrates Court is exercised by
individual magistrates pursuant to s 4(2) of the Magistrates Court Act.

199. The Court, as an institution had knowledge of the terms of the SIFVO and the
finalisation of the related charge. However, no person at the hearing on 23 October
2019 or 12 November 2019 submitted to the magistrate exercising the Court’s
jurisdiction on either of those dates of the fact that the related criminal charge had been
finalised, with the result that the interim order no longer imposed prohibitions on the
Plaintiff.

200. Whether the second defendant “should have known” is not the relevant question. The
relevant questions is whether a cause of action arises.

ISSUE 5: Does s 17A(1) in the context of the Magistrates Court Act give rise to a
cause of action for damages against the Second Defendant?
201. Section 17A(1) of the Magistrates Court Act reads as follows:

Any person injured by an act done by a magistrate in a manner in which by law the
magistrate has no jurisdiction or in which the magistrate has exceeded his or
her jurisdiction, or by an act done under any conviction or order made or
warrant or writ issued by a magistrate in any such matter, may maintain in the
Supreme Court an action against the magistrate without alleging in his or her
statement of claim that the act complained of was done maliciously and without
reasonable and probable cause.

(emphasis added)

202. Section 17A(2) provides:

No such action is maintainable for anything done under any such conviction or
order until after the conviction or order until after the conviction or order has
been quashed or set aside on appeal.

(emphasis added)

203. The Plaintiff pleads that he is entitled to damages pursuant to s 17A of the Magistrates
Court Act.

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204. The Plaintiff submitted that the plain terms of s 17A of the Magistrates Court Act gives
rise to a cause of action.

205. Section 17A of the Magistrates Court Act, it was submitted, is close in its terms to s 135
of the (now repealed) Justices Act 1902 (NSW). Section 135 relevantly provided:

(5) 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 Justice
shall be an action as for a tort.

(6) An action shall not lie against a Justice for any such act referred to in
subsection (1) unless the act was done maliciously.

206. Section 135 was considered by the NSW Court of Appeal in Spautz v Butterworth
(1996) 41 NSWLR 1 (Spautz). In Spautz, the NSW Court of Appeal considered that the
error of a Magistrate was such as to take him outside of jurisdiction and that,
accordingly, immunity did not apply. Clarke JA (with whom Priestly and Beazley JJA
agreed), in considering s 135, stated at 23:

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.

207. Spautz, it was submitted, is the relevant authority for a number of reasons including the
following. First, “it supports the proposition that the lack of an underlying statutory
power supporting jurisdiction to do what the Magistrate sought to do – in this case,
placing the Plaintiff on remand”. Second, the case supports the proposition that the
onus of establishing that the Second Defendant acted within jurisdiction rests with the
Second Defendant. Third, the case demonstrates that s 17A(2) is not engaged when a
Magistrate purports to issue an order without jurisdiction because such an act is not
done under any such conviction order. In effect, it was submitted, this is an application
of the nullity principle of jurisdictional error as it affects inferior courts and
administrative tribunals.

208. Counsel for the Plaintiff submitted that it is “obvious” that s 17A gives rise to a cause of
action, plainly stating “maintain … an action”.

40
209. What is not obvious, it was submitted, was why the Defendant “having submitted to his
Honour Crowe AJ, in defending the operation of s 17A as a substantive remedial
provision, albeit with a precondition to be satisfied in s 17A(2) and securing relief on
that basis now consider it appropriate to press a contention that s 17A is not a
substantial remedial provision, or why that stance does not invite the scandal of
inconsistent judgments in this court”. For my own part, I have difficulty seeing how the
Defendants can be said to have advanced this submission before his Honour.

Consideration
210. In my view, s 17A must be read in the context of s 17I of the Magistrates Court Act:

In an action against a magistrate for any act done by the magistrate in the
execution of the magistrate’s duty as a magistrate in relation to any matter within
the magistrate’s jurisdiction as a magistrate, it must be expressly alleged in the
statement of claims that the act was done maliciously and without reasonable
and probable cause, and if the allegations are denied, and at the trial of the action
the plaintiff fails to prove them, the judgment must be given for the defendant.

(emphasis added)

211. Section 17A(1) of the Magistrates Court Act does not create a statutory cause of
action. The effect of s 17A(1) is that if a plaintiff has a right of action against a
Magistrate, for example in false imprisonment, the plaintiff may maintain that action
without alleging malice and the absence of reasonable and probable cause, only if the
act of the Magistrate was without, or in excess of, jurisdiction. In my view, as a matter
of statutory construction that is how the language of the section reads. That analysis is
supported by the context of s 17I.

212. In my view, the Plaintiff’s references to s 135 of the now-repealed Justices Act 1902
(NSW) and Spautz do not assist his case. The argument in Spautz was limited to,
whether ss 135 and 146 of the Justices Act provided the individual magistrate with an
immunity or defence in response to the independent tortious claim made against him.

213. The Plaintiff’s case under s 17A of the Magistrates Court Act therefore fails as a matter
of statutory construction.

214. In my view, section 17A does not give rise to a cause of action. In any event, even if it
did, this is not a case in which a Magistrate has exceeded their jurisdiction as
discussed under issues 2 and 3.

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ISSUE 6: If s 17A(1) of the Magistrates Court Act does give rise to a cause of
action for damages against the Second Defendant, is such an action not
maintainable by operation of s 17A(2) of the Magistrates Court Act?
215. As set out above, I have come to the conclusion that s 17A(1) does not give rise to a
cause of action. It is therefore neither appropriate nor necessary to deal with Issue 6.

ISSUE 7: If s 17A(1) of the Magistrates Court Act does give rise to a cause of
action for damages against the Second Defendant, what are the elements of the
cause of action, and has the Plaintiff satisfied those elements so as to be entitled
to damages from the Second Defendant?
216. The Plaintiff pleads that he is entitled to damages pursuant to s 17A of the Magistrates
Court Act and that the elements of the cause of action are set out in s 17A(1).

217. Counsel for the Plaintiff submitted that the elements of the cause of action are satisfied
as:

a) The Plaintiff was injured as he suffered a loss of liberty for 58 days with
consequential loss;

b) His injury resulted from the Remand Orders; and

c) The Remand Orders were each made without, or in excess of, jurisdiction.

218. In my view, as set out earlier, s 17A does not give rise to an independent cause of
action. Further, as I have found above, even if it did give rise to a cause of action the
Remand Orders were not made without, or in excess of jurisdiction.

ISSUE 8: Does s 18(7) of the Human Rights Act give rise to a cause of action for
compensation?
219. Section 18(7) of the Human Rights Act reads as follows:

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

220. In relation to this issue, counsel for the Defendants submitted, in summary, that:

a) Subsection 18(7) of the Human Rights Act does not establish a free-standing
right to compensation for unlawful detention;

b) The language, scope, and object of the legislation, having regard to the
relevant international instruments, means that the right to compensation for
unlawful arrest or detention will be satisfied by a claim for damages for false
imprisonment;

42
 c) Subsection 18(7) of the Human Rights Act does not establish a free-standing
right that requires an award if damages in addition to the relief available at
common law. Other rights provided in s 18 are met with remedies available at
common law;

d) Each of these conclusions is affirmed by the text, general comments and

travaux preparatoires of Art 9(5) of the ICCPR on which s 18(7) is based; and

e) In any event, the Plaintiff was lawfully imprisoned under a valid order of the
Court. The validity of that order, and the lawfulness of any imprisonment
pursuant to that order, is not undermined by the fact that the charges were
later withdrawn.

221. Counsel submitted that there is no statutory right to compensation under s 18(7) of the
Human Rights Act. However, to the extent there may be a statutory right to
compensation under s 18(7), counsel submitted that any such action must involve proof
of the same elements as a common law false imprisonment claim. The Plaintiff’s
contention that there may be imprisonments contrary to s 18(1) and s 18(2) of the
Human Rights Act prohibited by s 18(7) beyond those that are unlawful at common law,
should be rejected.

Decisions of Morro, Strano and Brown

222. Section 18(7) of the Human Rights Act was considered in Morro v Australian Capital
Territory [2009] ACTSC 118 (Morro). In Morro, the Supreme Court identified two
questions in relation to s 18(7):

(1) Whether that provision gives a statutory right to compensation independent

from the common law; and

(2) Whether the principles or quantum of compensation will differ from an

award of damages.

223. The determination in Morro that s 18(7) of the Human Rights Act provides an
independent statutory right to compensation is obiter dicta.

224. In the case of Strano v Australian Capital Territory [2016] ACTSC 4 (Strano), Penfold J
held that:

• The conclusion in Morro about the existence of a substantive statutory right

to compensation under s 18(7) was, in the circumstances of Morro, obiter
dicta;

43
 • That Gray J, in Morro, did not find that any distinction needed to be drawn
between the compensation payable under s 18(7) and compensation for
the tort of false imprisonment; and

• It was not necessary for the resolution of the dispute for the Court to
consider whether s 18(7) is an independent statutory right to compensation.

225. In Brown, Murrell CJ observed that the Plaintiff’s submissions assumed that the range
of detentions proscribed by s 18(1) and/or 18(2) of the Human Rights Act is wider than
the range of imprisonments covered by the tort of false imprisonment. This was an
assumption her Honour considered questionable for the reasons explained in R (on the
application of Jalloh (formerly Jollah)) v Secretary of State for the Home Department
[2020] 2 WLR 418; UKSC 4.

The text and purpose of Art 9(5) of the ICCPR

226. The text and purpose of the relevant provisions of the Human Rights Act may be stated
broadly as follows:

a) Section 18(1) protects the right not to be “arbitrarily arrested or detained”. It

protects against arrest or detention that is arbitrary, capricious, lacking in
proportionality, or otherwise not in accordance with human rights principles;

b) Section 18(2) protects the right not to be “deprived of liberty except on the
grounds and in accordance with the procedures established by law”. It aims to
ensure that deprivation of liberty occurs only within, and subject to, a clear
legal framework;

c) Section 18(6) protects the right to apply to a court so that the court can decide
“the lawfulness of the detention” and, where relevant, order their release. It
protects the right of access to relief in the nature of an order for habeas
corpus;

d) Section 18(7) protects the right of a person who has been “unlawfully arrested
or detained” to compensation for the arrest or detention. It protects the right of
access to relief in the nature of damages for wrongful imprisonment.

227. The primary source of the rights that are protected by Part 3 of the Human Rights Act is
the ICCPR. The equivalent right of s 18(7) in the ICCPR is Article 9 read within the
context of Article 2(3).

228. The Travauz Preparatoires for the ICCPR suggest that the aim of art 9(5) was to
protect the rights of access to a “right of action” for compensation for unlawful arrest or

44
 detention, although there were differences of opinion as to whether a specific
articulation of that right was necessary in light of the general obligation contained in art
2(3) to provide effective remedies. Ultimately, the broader expression, an “enforceable
right to compensation” was adopted.

229. The official commentary on art 9(5) indicates that it operates as a specific example of
the effective remedy obligation in relation to the prohibition on unlawful arrest or
detention. Its purpose is to protect the right of access to an enforceable right to
compensation:

Paragraph 5 obliges States parties to establish the legal framework within which
compensation can be afforded to victims, as a matter of enforceable right and not as a
matter of grace or discretion. The remedy must not exist merely in theory, but must operate
effectively and payment must be made within a reasonable period of time. Paragraph 5
does not specify the precise form of procedure, which may include remedies against the
State itself or against individual State officials responseible for the violation, so long as they
are effective.

230. The defendants submitted that this right provides support for the proposition that s
18(7) of the Human Rights Act operates to secure the right of access to the common
law cause of action for damages for false imprisonment.

231. Even though the above commentary of the Human Rights Committee is informed by art
2(3) of the ICCPR, the defendants submitted that it does not specify the remedy that
meets the meaning of an “enforceable right to compensation” in art 9(5) of the ICCPR.
The Defendants submitted that is consistent with the submission that the “right to
compensation” in s 18(7) of the Human Rights Act protects the common law remedy of
the tort of false imprisonment. The common law provides a right for Plaintiffs to seek
compensation for unlawful detention.

232. It was submitted, in determining the meaning of an Act, s 142 of the Legislation Act
2001 (ACT) provides that the Explanatory Statement and other extrinsic material may
be considered. The Explanatory Statement explains that art 2 of the ICCPR was not
included because the Bill was not intended to create a new remedy for an alleged
violation. The Presentation Speech at the time that the Human Rights Act was enacted
is relevant. In that speech, any notion that it created any causes of action is expressly
eschewed:

The bill I introduced today does not create a new right of action against a public
authority on the ground that conduct is inconsistent with human rights as recommended
by the consultative committee. My government considers that, at this time, creating a new
right of action would not be appropriate. However, an action that is allegedly based on an
incorrect interpretation of the law will be open to judicial review and administrative law
remedies. These remedies are already available.

(emphasis added)

45
233. The Defendants submitted that this view of s 18(7) of the Human Rights Act is also
supported by its subsequent legislative history t. In presenting the Human Rights
Amendment Bill 2007 (ACT), which included the new pt 5A to create a cause of action
for breaches of the human rights protected in pt 3, the Attorney-General observed that
the Human Rights Act had no cause of action when it was passed in 2004, and the
proposed amendment would create a cause of action.

Ubi jus ibi remedium – where there is a right there is a remedy

234. In international law, a remedy is generally implied for a breach of a right on the
principle reflected in the maxim ubi jus ibi remedium (“where there is a right there is a
remedy”). Accordingly, it is said “it is a principle of international law, and even a general
conception of law, that any breach of an engagement involves an obligation to make
reparation”: Factory at Chorzow (Germany v. Poland), 1928 P.C.I.J. (ser. A, No. 17) at
29. In the absence of an individual complaints mechanism or obligation to provide
effective remedies, there is support for the proposition that those gaps can be filled by
necessary implication.

235. A similar proposition might be thought to be available in respect of the right in s 18(7).
On the assumption that the provision created, in terms, an enforceable right to
compensation, it might be said that a remedy can and should be implied by the Court.

236. There is some authority for the proposition that gaps can be filled by necessary
implication. In Royal Insurance Co Ltd v Mylius [1926] HCA 49; 38 CLR 477 (Royal
Insurance), the High Court was prepared to imply a remedy to allow third parties to
insurance contracts to enforce certain obligations pursuant to a statutory scheme
regulating insurance contracts. In Royal Insurance, the “duty” was a statutory obligation
of an insurance company to an insured party to rebuild buildings damaged by fire,
rather than pay out the insured value. The statute imposed a duty (involving the
principal) and disclosed an entitlement (identifying the beneficiary). All that was
required was for there to be a cause of action, there being a duty and a right, and in the
absence thereof the statute would be frustrated.

237. A significant element in the implication of a remedy is that all of the other elements of a
cause of action are prescribed by the statute or identifiable within the statutory scheme.
In the present case, s 18(7) identifies a right to compensation but does not identify the
proper respondent or the forum that may have jurisdiction over the statutory cause of
action. This may be compared with the scheme in pt 5A which identifies the proper
respondent, distinguishing private actors and the judiciary from the executive, and the

46
 forum, clarifying the relief that is available in superior courts, inferior courts, and
tribunals.

238. Another significant element is that the statutory scheme would otherwise be frustrated.
In the absence of such consideration, there would be no basis for implication of the
remedy. In the present case, there is nothing to suggest that the scheme of the Human
Rights Act would be frustrated without the implication of a statutory cause of action for
unlawful arrest or detention.

239. The Defendants submitted, the statutory scheme is satisfied by the common law cause
of action, responding to s 18(7), harmoniously with other remedies available at
common law for other rights in s 18.

240. It is appropriate to consider relevant international law authorities and instruments when
interpreting whether the provision gives rise to a cause of action separate to that at
common law. Importantly, the High Court has observed, in construing international
instruments and the judgments of international and foreign domestic courts, that regard
must be had to the legal systems and constitutional settings in which they are framed
overseas, and the legal system and constitutional setting in which they might be
applied locally: Momcilovic at [19]-[20].

241. The Defendants submitted, the “right” declared in s 18(7) is that of the availability of a
remedy, which is given effect by the existence of the tort of unlawful imprisonment and
the availability of that action as a remedy. This reflects the dialogue model of the
Human Rights Act and the Executive’s and Legislature’s response within that dialogue.
The Explanatory Statement and introduction speech for the Human Rights Bill 2003
(ACT) made it clear that it did not intend to create a new remedy for any alleged
infringement.

242. In Eastman v The Australian Capital Territory [2019] ACTSC 280, Elkaim J held that s
23 of the Human Rights Act gave rise to a right to compensation, but considered that s
18(7) had neither the same objective nor breadth, instead considering at [149] that: “it
is intended to address wrongful arrest and detention situations, normally treated as a
common law tort”.

243. In Lewis Refshauge J concluded that s 18(7) does not give rise to a cause of action.
His Honour accepted the possibility that s 18(7) may have a residual area of operation
where false imprisonment is not available (at [530]).

244. Counsel for the Defendants submitted that s 18(7) of the Human Rights Act does not
give rise to a cause of action for compensation.

47
245. The Plaintiff pleads that he is entitled to compensation pursuant to s 18(7) of the
Human Rights Act 2004 (ACT) in respect of his unlawful detention.

246. Counsel for the Plaintiff further submitted that, should the Court find for the Plaintiff on
either the claims for trespass (false imprisonment), under s 17A of the Magistrates
Court Act, or negligence, the Court need not consider the Plaintiff’s alternative claim
under s 18(7) of the Human Rights Act.

Monaghan and s 18(7)

247. In Monaghan, Mossop AsJ (as his Honour then was), in a careful and considered
judgment, discussed whether s 18(7) of the Human Rights Act provides a free-standing
entitlement to compensation distinct from the common law remedies available for
unlawful arrest or detention [235]-[254].

248. Mossop AsJ referred to the controversy as to whether or not prior to the 2008
amendments, s 18(7) provided a freestanding entitlement to compensation distinct from
the common law remedies.

249. His Honour referred to the fact that the decisions in Morro and Strano related to the
form of the Human Rights Act as it was in place prior to the Human Rights Amendment
Act 2008 (ACT). Prior to the 2008 Amending Act the only remedy expressly provided
for in the Human Rights Act was a declaration of incompatibility under s 32.

250. At [237]-[238] Mossop AsJ stated:

The amendments to the legislation in 2008 introduced the potential that remedies could be
granted by the Supreme Court where a public authority had acted in contravention of its
obligation not to act in a manner incompatible with a human right or failing to give proper
consideration to a relevant human right. The nature of the remedy that could be granted
was both defined and limited by s 40C(4) which provided that the Supreme Court could
“grant the relief it considers appropriate except damages”. However, s 40C(5)(b) provided
that the section did not affect “a right a person has to damages (apart from this section)”. A
note under subsection (5) provides “Note: See also s 18(7) and s 23.” Notes do not form
part of the Act (Legislation Act 2001 (ACT) s 127), however, because they appear in an
authorised version of the Act, they are extrinsic material which may be taken into account
in interpreting the Act: Legislation Act s 142, Table 142 item 1. The existence of s
40C(5)(b) and the note are consistent with the legislature having amended the Act on the
assumption that s 18(7) provides a separately enforceable right to damages. That is
reinforced by the terms of the Explanatory Statement for the Human Rights Amendment
Bill 2007 (ACT) which provided in relation to what became s 40C(5)(b):

Paragraph 40C(5)(b) confirms that nothing in this section affects any right a person may have to
damages apart from the operation of this section. The note explains that nothing in this section
restricts the right to compensation that arises under section 18(7) and section 23 of the Human
Rights Act 2004.

The indication that ss 18(7) and 23 might themselves provide freestanding causes of action
was plainly inconsistent with what was said at the time of the introduction of the HR Act in

48
 2004. The Explanatory Statement for the Human Rights Bill 2003 (ACT) (“the Bill”), which
became the Act, provides:

The Bill does not incorporate Article 2 of the Covenant because the Bill is not intended to
create a new right to a new remedy for an alleged violation of a Part 3 right.

[Emphasis added].

251. It was further stated at [244]-[247]:

The legislative history of the bill that became the 2008 Amending Act does not indicate that
there was any recognition of, or support for, the implication that might be drawn from the
inclusion of the note or the terms of the explanatory statement.

The bill was referred to the Standing Committee on Legal Affairs (performing the duties of a
Scrutiny of Bills and Subordinate Legislation Committee). Report 50 of the Committee (4
February 2008) referred to the proposed s 40C(4), which provided that the Supreme Court
may grant the relief it considers appropriate except damages. The Committee recorded:

The Committee draws attention to these provisions and notes that there are quite divergent
views on the issue of whether the Supreme Court should or should not be permitted to award
damages simply on the basis that there has been a contravention of a human right (as stated in
the Act) in the performance of some action by a public authority.

The government’s response to this is recorded in the Committee’s Report 51 (3 March

2008) in which the then Attorney-General stated:

I note the committee’s comment that there are quite divergent views on the issue of whether the
Supreme Court should or should not be permitted to award damages for a breach of duty to
comply with human rights. I believe that it is not appropriate, given this divergences of views,
for the Court to be permitted to award damages for a breach of the duty to comply with human
rights. The amendments do not, however, affect any existing right to damages.

During the course of the Legislative Assembly debates upon the bill which became the
2008 Amending Act there was no reference to the possible operation of ss 18(7) and 23 in
the context of proposed s 40C(5)(b). In his presentation speech the Attorney-General said
(Hansard, 6 December 2007, page 4030):

I turn to the issue of remedies. In line with the recommendation of the 12-month review and the
Victorian Charter, damages will not be available for a breach of the Human Rights Act. Rather,
a finding of a breach could, for example, be a basis for setting aside an administrative decision
or for a declaration that the public authority’s actions breached were not in compliance with
human rights. [Sic]

252. His Honour noted that the debates did not refer to the note contained at the end of s
40C(5)(b) nor to the possibility that there may be any capacity for the Supreme Court to
make a monetary order against a public authority beyond the scope of proposed pt 5A.

253. Mossop AsJ made concluding statements at [255] to [257] without expressing a
concluded view as to the operation of s 40C. In my view, there is a great deal of force
to the contention that s 18(7) creates a cause of action based on the analysis of
Mossop AsJ. In particular, there is force to his Honour’s observations regarding the
interpretive note at [256]:

It is really the note [to s 40C(5)] which gives force to the contention that the Act, read as a
whole, requires that ss 18(7) and 23 provide freestanding rights. The note constitutes
extrinsic material which must be weighed against the other extrinsic material from Hansard

49
 which is indicative of the intention of the Legislative Assembly at the time of the original Act
and the 2008 Amending Act.

254. Nevertheless, if 18(7) creates a cause of action a breach of s 18(1) or 18(2) would be
required. For the reasons that follow the remand orders were not made arbitrarily or
without or in excess of jurisdiction and for that reason is it not necessary to resolve
whether s 18(7) creates a cause of action.

ISSUE 9: Were the Remand Orders:

(a) made arbitrarily, in breach of s 18(1) of the Human Rights Act, or

(b) made without, or in excess of jurisdiction, in breach of s 18(2) of the

Human Rights Act?

If the answer to either question is yes, were those orders “unlawful: for the
purpose of s 18(7) of the Human Rights Act?
255. Section 40B(1) of the Human Rights Act provides that:

40B Public authorities must act consistently with human rights

(1) It is unlawful for a public authority –

(a) to act in a way which is incompatible with a human right; or

(b) in making a decision, to fail to give proper consideration to a relevant

human right.

256. The Plaintiff pleads that both the first and second remand orders were made arbitrarily,
in breach of s 18(1) of the Human Rights Act, and made without, or in excess of
jurisdiction, in breach of s 18(2) of the Human Rights Act. In relation to his unlawful
detention, the Plaintiff pleads that he is entitled to compensation pursuant to s 18(7) of
the Human Rights Act.

257. The Second Defendant is, it was submitted, a public authority for the purposes of the
Plaintiff’s claims as the making of the Remand Orders was an administrative act.
Accordingly, if the Court finds that either or both of the Remand Orders were
incompatible with the Plaintiff’s rights under ss 18(1) or 18(2), the statutory
consequence is that those orders were unlawful, thereby satisfying an entitlement to
compensation under s 18(7).

258. Counsel for the Defendants relied upon submissions made in relation to Issues 2 and 3
in answer to the first two questions of Issue 9. I have accepted the submissions of the
Defendants concerning Issues 2 and 3 as discussed above.

259. The making of the remand orders did not contravene s 18(1) or s 18(2) of the Human
Rights Act. In my view the Remand Orders were not made arbitrarily in breach of s

50
 18(1). Further, in my view, the Remand Orders were not made without or in excess of
jurisdiction. Consequently, the question of whether s 18(7) is engaged does not arise.

ISSUE 9A (Defendants): Was there lawful justification for the Plaintiff’s detention
from 23 October 2019 to 19 December 2019 pursuant to the Remand Orders?
260. This issue has been addressed in the context of Issues 2 and 3. For the reasons
advanced there, the Court answers this issue “yes” and would dismiss the false
imprisonment claim.

ISSUES 9B, 10, 11, 11A and 12: Were the Defendants negligent?
261. Issues 9B, 10 (Plaintiff and Defendants), 11 (Plaintiff and Defendants), 11A and 12 all
relate to the plaintiff’s case in negligence. Although the parties have addressed these
issues separately, it is, in my view, convenient to address these issues together.

262. In doing so, the section does not address every submission advanced but, rather, deals
with the central submissions advanced regarding negligence.

263. In summary, the plaintiff submitted that, in accordance with Monaghan the Defendants
owed the Plaintiff a duty to take “reasonable action to prevent the Plaintiff from
suffering foreseeable and not insignificant harm”.

264. That claim was further particularised in relation to breach, with the Plaintiff submitting
that the Defendants breached their duty of care to:

a) maintain accurate and complete records of orders made, varied and revoked
by the second defendant; and

b) provide timely, accurate and complete records of orders made, varied and
revoked to the AFP.

265. The breach of that duty is said to arise from the Defendants’:

a) failure to administratively review the Special Interim Order upon the finalisation
of the Related Charge;

b) failure to record the Revocation; and

c) failure to notify the AFP of the Revocation.

266. One immediate challenge arising from the submissions of the Plaintiff in relation to
breach is that, as discussed earlier, it is not entirely clear what is meant by
“administratively review” nor is it clear how the duty as pleaded in the Amended
Statement of Claim could extent to this purported breach.

51
267. In particular, it is not clear how a duty to “maintain accurate and complete records of
orders” or to “provide timely, accurate and complete records of orders” could extend to
a duty to administratively review an order. I will discuss this issue in more detail below.

268. In essence the negligence issues raise the following questions:

a) Whether the Defendants owed the Plaintiff a duty of care?

b) If so, what is the content of that duty?

c) Whether the duty was breached?

269. I note that the Defendants submitted that the Plaintiff’s submissions significantly
expanded or differed from the Plaintiff’s pleaded case and that the Plaintiff should be
restricted to his pleadings. For the reasons I will come to, it is not necessary to decide
this issue.

270. Similarly, it is also not necessary to decide whether, as the Defendants submit, the
Plaintiff has limited its case to a breach of a duty owed by individual staff as opposed to
the Territory as a whole. This is because, in my view, regardless of whether the duty is
expressed as being owed by individuals or by the Territory, there is either no duty of
care owed or no breach of any such duty in the circumstances of this case.

Did the Defendants owe the Plaintiff a Duty of Care?

271. Sections 42 to 44 of the Civil Law (Wrongs) Act 2002 (ACT) (Civil Law (Wrongs) Act)
provide as follows:

42 Standard of care
For deciding whether a person (the defendant) was negligent, the standard of care
required of the defendant is that of a reasonable person in the defendant’s position
who was in possession of all the information that the defendant either had, or ought
reasonably to have had, at the time of the incident out of which the harm arose.

43 Precautions against risk–general principles

(1) A person is not negligent in failing to take precautions against a risk of harm
unless–

(a) the risk was foreseeable (that is, it is a risk of which the person knew or
ought to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the person’s position would

have taken those precautions.

52
 (2) In deciding whether a reasonable person would have taken precautions
against a risk of harm, the court must consider the following (among other
relevant things)–

(a) the probability that the harm would happen if precautions were not taken;

(b) the likely seriousness of the harm;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity creating the risk of harm.

44 Precautions against risk–other principles

In a proceeding in relation to liability for negligence–

(a) the burden of taking precautions to avoid a risk of harm includes the
burden of taking precautions to avoid similar risks of harm for which the
person may be responsible; and

(b) the fact that a risk of harm could have been avoided by doing something in
a different way does not of itself give rise to or affect liability for the way in
which it was done; and

(c) the subsequent taking of action that would (had the action been taken
earlier) have avoided a risk of harm does not of itself give rise to or affect
liability in relation to the risk and is not of itself an admission of liability in
relation to the risk.

272. Section 110 of the Civil Law (Wrongs) Act provides:

110 Principles about resources, responsibilities etc of public or other

authorities
The following principles apply in deciding in a proceeding whether a public or other
authority has a duty of care or has breached a duty of care:

(a) the functions required to be exercised by the authority are limited by the
financial and other resources reasonably available to the authority for
exercising the functions;

(b) the general allocation of the resources by the authority is not open to
challenge;

(c) the functions required to be exercised by the authority are to be decided

by reference to the broad range of its activities (and not only by reference
to the matter to which the proceeding relates);

(d) the authority may rely on evidence of its compliance with the general
procedures and applicable standards for the exercise of its functions as
evidence of the proper exercise of its functions in the matter to which the
proceeding relates.

53
273. The Plaintiff’s submissions in relation to whether a duty of care was owed by the
Defendants were largely limited to a reliance on the analysis of Mossop AsJ in
Monaghan.

274. In particular, the Plaintiff submitted that an application of the “salient features” test to
his case yields an almost identical assessment to that arrived at in Monaghan by
reading ‘Family Violence Act’ for ‘Bail Act’ and ‘Family Violence Orders’ for ‘Bail
Orders’. It must be said that that submission, while beguiling in its simplicity, is
unhelpful. The issue requires deeper analysis.

275. Reliance was placed by the Plaintiff on the bolded part of Mossop AsJ’s statement at
[86] where his Honour said:

While the statement of claim pleaded the duty in rather obscure terms, the relevant duty
would be a duty to take reasonable care in giving effect to the orders made by
Refshauge J and in particular:

(a) not make statements to Mr Monaghan as to what he was required to do in order to

make Refshauge J’s orders effective which were incorrect; and

(b) not provide information to the AFP about the current conditions upon Mr
Monaghan’s grant of bail which was incorrect.

276. I note that the Defendants correctly submitted that the first part of [86] must be read in
the context of the text that follows immediately after it, where his Honour clearly limited
the duty to one of not conveying incorrect information to an individual and ensuring that
incorrect information was not provided to the AFP relating to bail conditions.

277. It follows that I do not accept the Plaintiff’s submission that the duty of care the Plaintiff
submits exists in this case is the same or similar to that found to exist in Monaghan.
Rather, the duty contended for here is significantly broader than that found to exist by
Mossop AsJ. In particular, the duty would import a positive duty on the Court Registry
or court employees to communicate particular information to law enforcement officers.

278. One significant challenge to the Plaintiff’s submission that this case is a simple
application of Mossop AsJ’s decision in Monaghan is that the Family Violence Act
imposes different obligations to the Bail Act that Mossop AsJ was considering. In
particular, section 136(2) of the Family Violence Act requires an issuing authority, in
this case the Second Defendant, to provide to a local law enforcement agency any
information about a Family Violence Order that the law enforcement agency requests.
Section 136(2) of the Act provides:

136 Issuing authorities must provide FVO information

…

54
 (2) An ACT issuing authority that makes, amends or revokes an FVO must provide
to a local or interstate law enforcement agency any information about the
FVO that the law enforcement agency reasonably requests for the
purpose of exercising its law enforcement functions.

(emphasis added)

279. As the High Court noted in Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [62]
Courts are reluctant to impose duties on public authorities.

280. Noting that this situation differs significantly from Monaghan it is also worth noting that
in deciding whether to establish a novel duty of care, courts can consider a number of
factors including “the existence of conflicting duties arising from other principles of law
or statute”: Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR
649 at [103].

281. Here there is nothing to suggest that any duty of care owed by the Defendants should
extend beyond the duty to provide information to law enforcement agencies when
requested as provided for in s 136.

282. There is no evidence before the Court that any law enforcement agency issued a
request for information from the Second Defendant regarding the SFVIO. Nor is there
any evidence that any request for information in relation to the order included a request
for any particular notification as to when the related charges were finalised.

283. The onus of proof is, of course, on the Plaintiff who has not provided the Court with any
evidence as to any requests for information made or sought to call evidence from any
Court staff as to whether there is any standing request for information.

284. Accordingly, in my view, the Defendants did not have a duty of care generally to
“provide timely, accurate and complete records of orders made varied and revoked to
the AFP” absent a request for that information by the AFP made in accordance with s
136.

285. However, even if I am not correct in relation to the inconsistency of the statutory
obligation contained in s 136 there is a further flaw in the Plaintiff’s argument. In
particular, it is, in my view, not reasonably foreseeable to the Defendants or any of their
employees or agents that a law enforcement agency that did not have the necessary
information (or did not believe it had the necessary information) would act to arrest an
individual without using the power afforded to it under s 136 of the Family Violence Act
to request information.

55
286. This is because, as is made clear by s 136 there is a power afforded to law
enforcement agencies to request any information about a family violence order for the
purpose of exercising their function. Accordingly, in my view, it was not reasonably
foreseeable to the Defendants that a law enforcement officer who was confused or
unsure about the status of a particular order would act, for example, by arresting an
individual for breaching an order without making an enquiry as to the status of the
order.

287. Indeed, as the defendants correctly submitted there was no reason for any officer
within the Court registry to think that, if no communication was made to the AFP that all
related criminal charges had been finalised, it was likely that the Plaintiff would be
arrested on a charge which lacked a basis. Registry staff were entitled to proceed on
the basis that the AFP would not lay a charge on the basis of an order prohibiting
conduct “until all related charges are finalised” without first ascertaining whether related
charges had in fact been finalised.

288. Put more simply, Registry staff were entitled to act on the basis that the AFP would
read the terms of orders made by Magistrates and were not and could not be under
any duty to interpret those orders. Such a duty would extend beyond the functions
imposed on the Court: s 110 Civil Law (Wrongs) Act.

289. I note that this is not a situation where incorrect or false information was provided
following such a request, indeed the Plaintiff has not put before the Court any evidence
that there was a request. Akin to the situation in Monaghan, the Court is left in an
information vacuum as to what, if anything, was communicated between the
Defendants and law enforcement agencies concerning this particular SFVIO.

290. I further note that my conclusion in relation to reasonable foreseeability (but not my
conclusion regarding the effect of s 136) may, perhaps, be different were there to have
been a revocation. That is because, if a revocation of a family violence order is not
communicated there is at least a possibility that a law enforcement agency may act on
an order that no longer exists to affect an arrest. However, as I have found above there
was no revocation in this case there is no need to decide whether the presence of the
statutory obligation alone would limit the duty in that particular scenario.

291. Rather, in my view, this is a case where either:

a) the presence of s 136 creates an inconsistent statutory duty with the duty of
care proposed by the Plaintiff, such that, in accordance with Caltex Refineries
that duty should not be imposed;

56
 b) or, alternatively, absent a request for information from a law enforcement
agency, there was no reasonably foreseeable harm for the Defendants to act
upon.

292. Given the way the case was argued, however, it is convenient to nevertheless address
the arguments in relation to breach in the event that I am incorrect in my conclusion
regarding the duty of care.

293. I note for this purpose that I will assume the duty of care to be that pleaded by the
Plaintiff, namely, to:

a) maintain accurate and complete records of orders made, varied and revoked
by the second defendant; and

b) provide timely, accurate and complete records of orders made, varied and
revoked to the AFP.

Assuming there was a duty of care, was the duty of care breached?
294. Assuming that I am wrong in relation to the duty of care and the Defendants owed the
Plaintiff a duty of care as outlined above, in my view there was no breach of that duty of
care.

295. Turning to the alleged breaches, it appears that the breaches claimed by the Plaintiff
rely on a finding that the SVIFO was revoked on 30 August 2019. As I have found
above, there was no revocation on that date.

296. Indeed, as I have found above there was no change to the order at that date. The order
was not varied or revoked by an act of a Magistrate. Rather, the conditions ceased to
be of any effect in accordance with the terms of the order.

297. That finding is crucial as, absent any act by a Magistrate there was nothing for Registry
staff to record within their own records or to communicate to the AFP. Put simply, Court
staff are not required and cannot be required to interrogate or interpret the legal effect
of an order of a Magistrate. Such activities fall outside of their function.

298. Rather, it is incumbent on the parties to the dispute to raise issues regarding possible
issues with the presiding Magistrate so that any such issues can be resolved by the
Magistrate.

299. I turn now to consider the scant evidence as to what communication passed between
the Court Registry and the AFP. The effect of Constable Allan’s evidence was that the
AFP maintains its own team, the PROMIS Coordination team, to ensure that its indices
in relation to family violence orders are kept accurate and up to date.

57
300. It is patently clear that this system is not under the control of any employee or agent of
the Defendants, rather that system is maintained and operated by the AFP which is not
a party to this proceeding.

301. As is apparent from Constable Allan’s evidence, the AFP was, from 30 April 2019, in
possession of the full text of the SIFVO. Accordingly, even were there a duty of care as
submitted by the Plaintiff to “provide timely, accurate and complete records of orders
made, varied and revoked to the AFP” there is no evidence to sustain a finding that the
AFP did not possess up to date and accurate information about the Special Interim
Order.

302. The AFP had access to the Plaintiff’s criminal history at all times. That criminal history
recorded the finalisation of the damage property charge on 30 August 2019. That
information along with the text of the order meant that the AFP had, at the time of the
Plaintiff’s arrest, all necessary information to know that the order had ceased to impose
any obligations on the Plaintiff.

303. Put another way, there was no information that the Defendants possessed that had not
been provided (directly or indirectly) to the AFP. While is it obvious that the AFP failed
to grasp the significance of that information, the duty of care arguments advanced by
the Plaintiff do not, correctly, purport to argue that the Defendants were under some
duty to explain the legal effect of the Court orders to the AFP. As I have outlined above,
such a duty would plainly fall well beyond the function of the Second Defendant and
could not fall within the scope of any duty of care.

304. Accordingly, it is apparent that the Defendants did not breach any duty of care in failing
to provide up to date and correct information to the AFP. Nor did the Defendants
breach any duty of care to fail to update any court records.

305. This takes me to consider the Plaintiff’s submission that the Defendants breached their
duty by failing to “administratively review” the Special Interim Order. It is not clear
precisely what the Plaintiff submits the Defendants or their employees ought to have
done.

306. Nor is it clear how this failure to administratively review the file would fall within the
pleaded duty of care to:

a) maintain accurate and complete records of orders made, varied and revoked
by the second defendant; and

b) provide timely, accurate and complete records of orders made, varied and
revoked to the AFP.

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307. In my view, any duty of care imposed on Court staff in relation to family violence orders
would not extend to a duty to administratively review a file to determine whether an
order continued to be of legal effect. That is a legal conclusion which falls outside of the
Court Registry’s function. It is also a matter that again the Court expects and requires
parties to raise with the Court. It is not the role of Court staff to step into the role of
prosecution or defence counsel.

308. Even if I am wrong in relation to that conclusion, there is no evidence before me that
suggests the Court Registry failed to take reasonable precautions.

309. If the suggestion is that the Deputy Registrar (or some other staff member) had not
reviewed the SIFVO in terms of not looking at the file or not being aware that the
related charge had been finalised that suggestion must be rejected. As the Defendants
correctly submitted it is clear that the Deputy Registrar must have reviewed the order
on or shortly prior to 16 October 2019 in order to send the letter to the Plaintiff notifying
him of the listing of the application for a final order.

310. To the extent that the allegation is that the Deputy Registrar should have done
something to the court record such that some notice should have been given to the
Magistrates presiding over the hearings on 23 October and 12 November 2019 there
are three points to make.

311. The first is that there is no evidence before me as to how the Court files were
maintained, or indeed which files containing which documents were before the
presiding magistrates on 23 October and 12 November 2019. These are matters that
the Plaintiff has an onus to prove, and as the Defendants correctly submitted had they
been made aware in the pleadings of the precise basis of the claim then they may have
been able to lead evidence to address the issue.

312. The second is that as I have noted above, the order was not revoked. To the extent
that the claim of the Plaintiff is that the Registry failed to record the Revocation “so that
it formed part of the court record which was available to the presiding magistrates”,
there was nothing to record.

313. The third is that, in any event, as I have discussed elsewhere in these reasons the
remand orders were made within jurisdiction. As I have noted the Magistrates could not
have been under a legal obligation to look beyond the charge before them or to
conduct their own investigations. In the result it is equally apparent that court staff
could be under no such duty to conduct their own investigation. This is an adversarial
system of justice not an inquisitorial system of justice. The Court system could not
function were a duty of care found to extend to an obligation on Court staff to include a

59
 note on a file if they believed (rightly or wrongly) that a charge lacked a foundational
basis.

314. In reaching the above conclusions in respect of the negligence issue I have not found it
necessary to consider (or decide) the competing submissions advanced by the parties
as to the application of Jones v Dunkel [1959] HCA 8; 101 CLR 298 as to what
inference should be drawn by the purported failure of the opposing party to call the
Deputy Registrar to give evidence to the Court. In circumstances where the Deputy
Registrar was available to be called by both parties and was subpoenaed to appear by
the Plaintiff there is, in my view, some force to the Defendants’ submission that it would
not be appropriate to draw any Jones v Dunkel inference. Further, given my
conclusion regarding the duty of care, any evidence that the Deputy Registrar may
have provided to the Court could not, have been relevant to how I have disposed of the
issue.

315. This is because Jones v Dunkel inferences cannot “fill gaps in the evidence or to
convert conjecture and suspicion into inference”: Kuhl v Zurich Financial Services
Australia Ltd [2011] HCA 11; 243 CLR 361 at [64]. The Plaintiff bore the onus of proof
in relation to establishing a duty of care and breach of that duty. For the reasons
outlined above, he has not done so in this case principally because (even assuming the
duty of care as pleaded and argued) there was no revocation for the Court Registry to
communicate.

316. If I am wrong in relation to the question of negligence it is appropriate that I deal with
the question of contributory negligence and what remedies the Plaintiff is entitled to.

ISSUE 13: Was the Plaintiff contributorily negligent such as to justify any
reduction in damages?
317. To establish contributory negligence, the Defendants must show that the Plaintiff failed
to take reasonable care for his own safety and contributed, by that lack of care, to the
injury or damage that the Plaintiff suffered: see Astley v Austrust [1999] HCA 6; 197
CLR 1 (Astley) at [21].

318. Counsel for the Plaintiff submitted that no case can be made on the evidence for this
claim and that it should be dismissed. I agree.

319. To prove contributory negligence, the Defendants must show that:

• The Plaintiff had actual knowledge of the error on the part of the Plaintiff:
Woodhouse v Fitzgerald [2021] NSWCA 54 at [107]-[110];

60
 • The Plaintiff did not take reasonable precautions to protect himself from the
negligence of the officers; and

• That the Plaintiff’s failure to take those precautions was causally significant of
his loss and harm: Verryt v Schoupp [2015] NSWCA 128 at [26].

320. The Plaintiff submitted that the pleading of contributory negligence is untenable and
should be rejected by the Court.

321. Counsel for the Defendants submitted that the Court will not reach Issue 13 unless
liability of the First Defendant is established. If Issue 13 is reached, it was submitted
that Court should find that the Plaintiff was contributorily negligent and reduce any
damages awarded accordingly.

322. Counsel for the Defendants submitted that the Defendants do not need to prove that
the Plaintiff had actual knowledge of his error. Nor must it be established that the
Plaintiff did not take reasonable precautions to protect himself from the negligence of
the Officers. Rather, what must be shown is that the Plaintiff failed to take reasonable
care for his own safety and contributed, by that lack of care, to the injury or damage
suffered: Astley at [21].

323. Counsel for the Defendants submitted that the Plaintiff was notified on 16 October 2019
that the related charge referred to in the SIFVO had been finalised, and that he had
been served with the SIFVO and was aware of its terms.

324. Further, the Plaintiff conceded in cross-examination that:

a) After 30 August 2019, there was no order in place that prevented him from
attending his ex-partner’s address;

b) On 23 October 2019, the Plaintiff had read the terms of the interim order; and

c) The Plaintiff understood, when he read the interim order on 23 October 2019,
that the order did not prevent him from attending his ex-partner’s address the
previous night.

325. I do not accept the Plaintiff’s evidence that as at 23 October 2019 he fully understood
the legal effect of the interim order. That is so for the following reasons.

326. First, had the Plaintiff understood the order at the time (as he now claims he did) it
follows that he, in effect, voluntarily allowed himself to be taken into custody, did not
raise the matter with his lawyers or the presiding Magistrate and remained in custody
knowing there was no basis to the charges for a not insignificant period. Again,
notwithstanding the Plaintiff’s evidence, I find that circumstance to be implausible.

61
327. Second, the Plaintiff’s evidence on the point is not as clear as the Defendants
submission adverts to. In particular, as discussed above at [41] at times the Plaintiff
referred to understanding that his bail conditions no longer prevented him from visiting
the residence. The Plaintiff also gave evidence that he was not aware of the conditions
of the SIFVO (that evidence being inconsistent with other statements he made that he
was aware of the terms of the order as at 30 August 2019). In my view, in light of that
inconsistency and the other matter addressed above a positive finding that the Plaintiff
was fully aware of the conditions of the interim order (and, in particular, that the
conditions ceased to be of legal effect) is not open on the evidence.

328. I generally accept the evidence of the Plaintiff and find him to be a credible witness.
Nevertheless, in this particular aspect, in my view, there was an element of ex post
facto wishful thinking as to his then understanding.

329. Counsel for the Defendants submitted that if the Court finds that there was negligence,
then the Court should also find contributory negligence by the Plaintiff. I do not find
negligence. In the event I am incorrect on that finding, I do not find contributory
negligence for the reasons discussed above.

330. In summary, the Defendants contention rests on the establishment of a positive finding
that as at 23 October 2019 the Plaintiff was aware of the legal effect of the conditions
of the SIFVO. That is, that he was aware that the conditions were no longer of any
effect and was contributorily negligent by not raising that matter with his lawyers or with
the Court. As I discussed above, in my view, the evidence does not permit such a
positive finding to be made.

331. Contributory negligence is not established.

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ISSUE 14 (Plaintiff): What, if any, relief should be granted to the Plaintiff, including:
(a) whether the Declaration sought should be made; (b) whether the Remand
Orders should be set aside; (c) the appropriate quantum of general damages for
loss of liberty (if liability be established); (d) the amount of damages for the
Plaintiff’s economic loss (if liability be established); and (e) whether to award
aggravated damages and the amount of the same (if liability be established)?

ISSUE 14 (Defendants): What, if any, relief should be granted to the Plaintiff,

including: (a) whether the Declaration sought should be made; (b) the appropriate
quantum of general damages for loss of liberty (if liability be established); (c) the
amount of damages for the Plaintiff’s economic loss (if liability be established);
and (d) whether to award aggravated damages and the amount of the same (if
liability be established)?

Declaratory Relief
332. The Plaintiff submitted that the Court should make a declaration in the following terms:

That in purporting to remand the plaintiff in custody on 23 October 2019 and 12

November 2019 the Magistrates Court acted without, or in excess of, jurisdiction.

333. The Plaintiff also sought an order setting aside the two remand orders, noting that the
reference in the Amended Statement of Claim and the Originating Claim to
“declarations” to that effect were incorrect. No reason for the error was provided by the
Plaintiff, nor was any indication given prior to the filing of written submissions that the
remedy indicated in the Amended Statement of Claim would be substituted for a
different remedy.

334. The Plaintiff submitted that such relief is appropriate to provide “vindication” to the
Plaintiff and to provide adequate scope for his compensation, namely, under s 17A of
the Magistrates Court Act.

335. The Defendants submitted that no declaration in those terms should be made as the
Court would find that the Magistrates Court had jurisdiction to make the Remand
Orders.

336. The Defendants submitted that the Plaintiff should not now be permitted, by a “back
door”, to amend his Amended Statement of Claim and the Originating Claim to seek an
order in the nature of judicial review. In particular, the Defendants submitted that there
is no, properly constituted judicial review proceeding on foot and that for the reasons
the Defendants advanced in relation to Issue 6, s 17A(2) of the Magistrates Court Act
prevents a collateral attack on the Court’s orders absent a judicial review proceeding
having been commenced by the Plaintiff.

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337. For the reasons I have given above concerning Issues 2 and 3, I do not accept that the
Magistrates Court did not have jurisdiction at the relevant times. For that reason, the
declaration sought by the Plaintiff should not be made. Given my findings in relation to
that issue, it is also, in my view, not appropriate to make orders at this time setting
aside or quashing the remand orders.

Damages
338. The below table summarises the parties’ respective proposed figures in relation to
damages:

Head of Damages Plaintiff Proposed Figure Defendants’ Proposed

Figure

General Damages $150,000 $40,000

Past Interest $480 $127.12

Future Interest To be calculated $2,906.24

Past economic loss $12,600 $12,041

Interest on past economic $1,046.11 $1,049.71 (as at October

loss 2019)

Superannuation on past $1,386 Nil

economic loss

Future economic loss $21,000 Nil, alternatively,

$15,854.30

Aggravated Damages $25,000 Nil

Total $211,500 (excl future $56,124 (assuming no

interest) award for future economic
loss)

339. As is apparent from the above, there are a number of issues between the parties
concerning damages. Each of those will be addressed in turn.

Past Economic Loss

340. In summary, the Defendants accept (broadly) the Plaintiff’s claim for past economic
loss from the period 23 October 2019 to 19 December 2019 calculated at a rate of
$300.00 a day for 43 working days. In particular, the Defendants accepted that “if

64
 liability is established, the Plaintiff would be entitled to economic loss in respect of lost
earnings during the period he was detained”.

341. The difference in the parties’ positions is referable to the Defendants’ submission that
the award should be reduced by $559 in income support payments that the Plaintiff
received during the period.

342. Counsel for the Plaintiff submitted that the Court should not reduce the award for past
economic loss by the amount of income support payment the Plaintiff received. Rather,
counsel submitted the appropriate approach was for the Court to ignore these
payments and for the Commonwealth to use its powers to recover the money
subsequent to that money being paid to the Plaintiff.

343. I accept that submission, in my view, it is a matter for the Commonwealth Executive to
recover any monies from the Plaintiff that, as a result of any damages award he would
no longer be entitled to. To do otherwise would be, in effect, to have the
Commonwealth subsidise the Territory for a damages award. Accordingly, the Plaintiff
would have been awarded $12,600 for past economic loss.

Superannuation for past economic loss

344. In relation to the issue of superannuation, the Defendants correctly noted in oral
argument that superannuation was not part of the Plaintiff’s case until reply
submissions and was not pleaded in the Plaintiff’s statement of claim. In my view,
nothing turns on this omission. If leave to amend is necessary, I grant it.

345. The Defendants further submitted that as far as they were aware there was not any
“case in which damages has been awarded in respect of superannuation for economic
loss referable to lost earnings, at least in the false imprisonment context”. They also
submitted that no evidence had been tendered to support the claimed rate of 11%.

346. In relation to the latter submission, it is readily apparent that the 11% claimed reflects
the usual or general rule in relation to superannuation for past loss of earning capacity
at least in New South Wales: Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR
728; Amin v Vidal [2020] ACTSC 227; 94 MVR 285 at [107]. That rate is applied as the
award for loss of lost earning capacity is generally calculated on a net rather than gross
basis.

347. In my view, there is no need for specific evidence to support a claim for the usual or
general approach to superannuation. This is not a case (for example) where the
Plaintiff is claiming superannuation at a higher rate due to a specific pay agreement (for
example the Plaintiff is not an Australian Public Service employee).

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348. I pause to note that there is at least one recent decision in this Court that applied an
11.5% figure to past economic loss to account for recent increases to the
Superannuation Guarantee: see Roberson v Icon Distribution Investments Ltd [2020]
ACTSC 320; 15 ACTLR 256 at [328]-[331] per Crowe AJ. Notwithstanding that
decision, in this case, were an award for superannuation appropriate I accept that it
could be calculated on a basis of 11% of net earnings as outlined in Najdovski as the
Plaintiff has not advanced a contrary submission.

349. In oral submissions in reply, counsel for the Plaintiff submitted that “compensatory
damages which include economic loss for past earnings always attract the
superannuation that is foregone because of the loss of those earnings”.

350. I accept that submission. In my view, there is no relevant distinction to be made

between an award for past economic loss in a false imprisonment case or in any other
“standard” case. In any event, the Defendants’ submission that no award for
superannuation has been awarded in a false imprisonment context cannot be
accepted. In State of New South Wales v Abed [2014] NSWCA 419, a case to which no
party drew my attention, the NSW Court of Appeal made such an award at [278].

351. While in that case, the award was calculated at 9% of net earnings, the Court expressly
noted that no submission had been advanced in relation to the higher percentage
adopted in Najdovski. There is such a submission in this case.

352. Although the parties did not draw my attention to any decisions of this Court that have
allowed for an award of superannuation for past economic loss in a false imprisonment
context, this may be readily explained by the fact that there are comparatively few
claims for false imprisonment in this jurisdiction.

353. No authority was drawn to my attention where this Court expressly ruled that
superannuation was not payable in a false imprisonment context, nor was there any
clearly articulated principle as to why a false imprisonment case should be treated
differently to any other case where an award is made for past economic loss.

354. The general purpose of compensatory damages is to place the Plaintiff in the position
that they would have been in but for the relevant act occurring. In the context of
economic loss, but for the relevant act the Plaintiff would have been paid a
superannuation contribution on his earnings. Such is apparent from the payslip
evidence before me.

355. Accordingly, had I reached a different view in relation to liability, I would have awarded
superannuation for past economic loss at a rate of 11% of the net earnings, namely,
$1386.

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Future Economic Loss
356. The Plaintiff submitted that he was entitled to $21,000 for future economic loss
resulting from his loss of employment following his arrest and imprisonment. This claim
arises in the Plaintiff’s submission from the fact that the Plaintiff was not able to resume
his employment when released from custody.

357. In relation to this claim, the Defendants submitted that there was no evidence provided
to the Court indicating that the Plaintiff had a written contract from his employer to work
up to 31 March 2020.

358. The Defendants submitted that the Plaintiff’s work prior to his detention, namely,
working on the upgrade of the ACT Court precinct may not have been available to him
as at 20 December 2019 as to the best of the knowledge of the Defendants that work
had been completed. The Defendants noted that no evidence had been led on that
issue by the Plaintiff.

359. The Defendants correctly noted that the Plaintiff had given evidence in cross-
examination that his contract was until 31 March 2020, however submitted that his
subsequent evidence made it unclear as to whether he had an employment contract at
all and, absent any such contract being in evidence, that no award for future economic
loss was justified.

360. The Defendants further submitted that there was no reliable evidence as to how much
the Plaintiff was likely to have earned over the relevant period, and that, in the event
that I did not accept their primary submission (that no award for future economic loss
should be made) I should reduce any award by the quantum of the unemployment
payments made to the Plaintiff over the relevant period.

361. I accept the Defendants submission that the Plaintiff’s evidence to his contractual
arrangements was unclear. This is not a case where a written contract has been
provided to the Court or where clear evidence establishes that work was available.

362. In my view it would have been appropriate to provide for future economic loss by way
of a buffer of $10,000. In accordance with my reasoning above, I would not have
reduced this amount by the Commonwealth income support payments the Plaintiff
received.

363. Accordingly, I would have awarded $10,000 for future economic loss.

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General Damages
364. In Lewis v Australian Capital Territory [2018] ACTSC 19 (Lewis), Refshauge J provided
a useful summary of some of the applicable principles of damages for false
imprisonment:

McDonald J in Myer Stores Ltd v Soo at 633, cited with approval from Harvey McGregor
and John D Mayne, McGregor on Damages (Sweet & Maxwell, 14th ed, 1980) at 922:

The principal head of damage would appear to be the injury to liberty, i.e. the losses of time
considered primarily from a non-pecuniary point of view and the injury to feeling i.e. the
indignity, mental suffering, disgrace and humiliation with any attendant loss of social status.

The relevant passage in the 16th edition, namely Harvey McGregor, McGregor on
Damages (Sweet & Maxwell, 16th ed, 1997) at 1198-9; [1850], is to the same effect. The
latter passage was cited with apparent approval by Gray J in Morro v Australian Capital
Territory [2009] ACTSC 118; 4 ACTLR 78 at 110; [141].

Thus, as Lawrence LJ said in Walter v Alltools Ltd (1944) 61 TLR 39 at 40, deprivation of
liberty is not the only value to be protected. His Lordship said:

[A]ny 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.

As noted in McGregor on Damages, injury to feelings, such as the humiliation caused, may
also form part of the matters that constitute the damage for which compensation is to be
awarded: McIntosh v Webster at 127-8.

In addition, any personal injury suffered by the plaintiff, including any deleterious effect on
his or her health, is a matter that may be included in the damages for which the plaintiff is
to be compensated: New South Wales v Williamson [2012] HCA 57; 248 CLR 417 at 428-
9; [33].

Indeed, that is re-affirmed by the quotation which Murphy J in Myer Stores Ltd v Soo at 603
cited from P A Landon, Pollock on Torts (Stevens & Sons, 15th ed, 1951) at 142, namely
that:

the estimate of damages may be coloured, so to speak by disapproval of the defendant’s

conduct (and in the opinion of the court legitimately so), though it be not a case for vindictive or
exemplary damages in the proper sense.

365. Further, in Monaghan, Mossop AsJ surveyed the authorities on damages for loss of
liberty. At [170], Mossop J stated:

The relevant authorities identifying the approach that should be taken to a claim for false
imprisonment are set out in the decision of Gray J in Morro v Australian Capital Territory
[2009] ACTSC 118; (2009) 4 ACTLR 78 (Morro). In a negligence case where the
causally related consequences of the negligence is the detention of the plaintiff it is
useful to note the approach to damages for false imprisonment and the distinction
between damages for that cause of action and a cause of action in negligence. In
Morro Gray J said (at [140]-[145]):

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In Ruddock v Taylor [2005] HCA 48; (2003) 222 CLR 612 at [140], Kirby J referred to the
approach to general damages in respect of false imprisonment at [138]:

The principal function of the tort is to provide a remedy for ‘injury to liberty’ (see Trindade and Cane,
The Law of Torts in Australia, 3rd ed (1999), p 302.). It is not, as such, to signify fault on the part of the
defendant. Damages are awarded to vindicate personal liberty, rather than as compensation for loss
per se (see Balkin and Davis, Law of Torts, 3rd ed (2004), p 62 [3.27]. Contrast the tort of negligence,
where damages are awarded to compensate for loss or damage).

As far as the heads of damages recoverable in a claim for false imprisonment, McGregor on
Damages (16th ed, 1997) at [1850]:

The details of how the 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, i.e. the loss of time considered
primarily from a non-pecuniary viewpoint, and the injury to feelings, i.e. 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.

cited by MacDonald J in Myer Stores Ltd v Soo [1991] 2 VR 597 at 633 and by Clarke JA in
Spautz v Butterworth (supra) at [14G]. In Myer Stores Ltd v Soo Murphy J summarised the
position (at 603):

The damages in an action for false imprisonment are generally awarded not for a pecuniary loss but for
a loss of dignity, mental suggering, disgrace and humiliation. Any deleterious effect on the plaintiff’s
health will also be compensated.

He also cited Pollock on Torts, (15th ed) p 142 that:

the estimate of damages may be coloured so to speak by disapproval of the defendant’s conduct (and
in the opinion of the court legitimately so) though it be not a case for vindictive or exemplary damages in
the proper sense.

In Goldie v Commonwealth (No 2) at [14] French J said:

The assessment of damages for false imprisonment is necessarily informed by the general proposition
that:

False imprisonment trenches not only upon a person’s liberty but also on his dignity and
reputation, and this is reflected in the calculation of damages.

J Fleming, The Law of Torts, 8th ed, LBC (1992) at [29]:

The compensatory damages are assessed by reference, inter alia, to the duration of the
deprivation of liberty and to hurt or injury to the plaintiff’s feelings, that is to say the injury, mental
suffering, disgrace and humiliation suffered as a result of the false imprisonment – Trindade and
Cane, The Law of Torts in Australia, 3rd Edition, OUP (1999) at 302.

In Spautz v Butterworths, Clarke JA considered it permissible to compare awards in other false

imprisonment cases. He said (at 13D):

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 Ltd (t/as K-Mart Chatswood) [1995] Aust
Torts Reports 62,682 the Court increased an award of general damages in circumstances in which the
plaintiff had never been incarcerated in a prison to $24,000. In Wooley v Philips (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.

As far as damages in that case were concerned, Clarke JA said (at 18B):

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 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.

(emphasis added)

366. In Spautz, Clarke JA also stated:

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 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 fide 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 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.

(emphasis added)

367. I will first consider general damages before turning to aggravated damages.

368. In relation to general damages the parties correctly submitted that there is no daily
“tariff” of damages in cases of this kind. Rather, the principles relevant to the award of
general damages in cases such as these are set out above. This does not mean,
however, that previous awards of damages cannot be considered.

369. In this case, the Plaintiff’s counsel submitted that the Plaintiff suffered significant
deprivation and impositions beyond his loss of liberty. The Plaintiff further submitted
that he had spent 58 days in custody and that the Defendants’ conduct in defending the
proceeding justified an increase in the award of general damages (or an award of
aggravated damages).

370. As a result of his incarceration, the Plaintiff submitted that he had suffered disruption to
his personal and working life and that “the effects on him were profound”. The Plaintiff
also referred in his written closing submissions to the conduct of the arresting officers
and where the arrest took place.

371. The Plaintiff submitted that the case of Spautz was a “close analogy” in this case,
noting that in that case related to 56 days imprisonment. Counsel submitted that “on a
rough calculation of present-day values” the general damages award was $150,000
(which corresponded to the Plaintiff’s claim in this case).

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372. The Plaintiff also referred me to the case of Morro submitting that in that case $95,000
was awarded for general damages. The Defendants correctly submitted that this award
included the award for economic loss.

373. The Plaintiff also referred in oral submissions to the case of Lewis where Refshauge J
notionally assessed damages for an imprisonment at $100,000 for 82 days.

374. The Plaintiff ultimately submitted that an award of $150,000 was appropriate by way of
general damages.

375. This award was justified in the Plaintiff’s submissions given the significant loss of liberty
by the Plaintiff as well as the conditions that he was subject to while incarcerated.

376. The Plaintiff submitted in written submissions that the factors that he pointed to in
relation to aggravated damages (which in turn relate to the Defendants’ conduct in
defending this proceeding) could also bear on a general damages award: McDonald v
Coles Myer Ltd [1995] NSWSC 67; Aus Torts Rep 81 at [62]. As I will outline in my
discussion concerning aggravated damages, I do not accept the Plaintiff’s submissions
concerning those factors and, accordingly, they do not bear on the assessment of
general damages.

377. The Defendants submitted that the Plaintiff spent 58 days in custody and that the Court
may take judicial notice of the fact that this would have been an “unpleasant
experience”.

378. The Defendants further submitted that the evidence of the arrest was not relevant to
general damages as the case was one of false imprisonment, not wrongful arrest. In
doing so, the Defendants noted that a substantial portion of an award of this general
kind is for the shock of being arrested – a factor not present in this case. The arresting
officers or their agency are not defendants in this proceeding. Damages cannot be
awarded for any conduct of the arresting officers as such.

379. The Defendants submitted that the Plaintiff had abandoned any claim for damages in
respect of “anxiety, nightmares, flashbacks, shame, trauma and mental harm”. Instead,
the Defendants submitted that the Plaintiff’s claim should be limited to the loss of liberty
as outlined in the Plaintiff’s amended reply.

380. The Defendants submitted that the case of Spautz could be distinguished from the
present case. In particular, the Defendants submitted that in Spautz the plaintiff had no
criminal history, suffered reputational damage and a “substantial” part of the damages
award related to his arrest in front of his university colleagues. As I have noted above,
in this case the arrest itself cannot bear on the damages award.

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381. The Defendants submitted that this case was more similar to the case of Morro where
the Plaintiff was awarded $55,000 in general damages (which included economic loss).
The Defendants submitted that in that case evidence had been provided to the court
from a psychiatrist and psychologist as to the effects of long-term imprisonment on the
plaintiff.

382. The Defendants ultimately submitted that an award of $40,000 for general damages
was appropriate in this matter given the longer period of imprisonment in Morro the
economic loss and the specific psychological evidence led in that case.

383. I accept that submission. In my view, the appropriate award for general damages in this
case would have been $40,000.

Aggravated Damages
384. The Plaintiff advanced four specific matters that he submitted justified an award of
aggravated damages as well as advancing two broader submissions justifying such an
award. I will turn first to the specific matters, and then discuss the broader issues.

385. First, the Plaintiff submitted that the Defendants declined to apologise to the Plaintiff in
open court in the presence of the Plaintiff.

386. The Plaintiff submitted that this is a case where the absence of an apology should
sound in an award of aggravated damages, for a number of reasons.

387. First, the Defendants were on notice of this issue. Second, this is not the case of an
absence of apology made in unexplained circumstances. The Defendants expressly
declined to make an apology to the Plaintiff in his presence in open court after
evidence was led from the Plaintiff regarding the trauma, fear, humiliation and despair
which he had experienced as a result of his detention. Third, the Defendants’
explanation for not apologising to the Plaintiff was because there was no mistake of an
officer of the Territory. Counsel for the Plaintiff submitted that there clearly was a
mistake in the detention of the Plaintiff and submitted that attempting to attribute that
mistake to the AFP does not assist the Defendants.

388. The second matter the Plaintiff relies on to justify a claim for aggravated damages is
the Defendants’ attempt to minimise the Plaintiff’s experience in custody by objecting in
closing submissions to parts of his evidence.

389. This submission was directed to comments made by counsel for the Defendants when
he stated:

…there is no particulars in the pleading of any incident, event, thing, that is alleged to have
happened to the plaintiff during the course of his detention. I accept that questions about

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 being searched, for example, are legitimate because they are officers of the AMC. They
are available to me. I can make enquiries about them, but if there’s to be evidence led
about any incident from some other inmate, matters of that kind, they should have been
particularised so we could make enquiries before the hearing started.

390. The Plaintiff submitted that in making this submission, the Defendants invited the Court
to disregard evidence properly adduced by the Plaintiff of his experience in custody.
This statement, the Plaintiff submitted, is dismissive and disrespectful of the experience
of the Plaintiff and the “travesty” that was visited upon him. The Plaintiff noted that
while he had disavowed reliance on evidence about his interactions with his cell mates
in favour of the Court accepting a general conclusion about the nature of prisons. The
Plaintiff did not abandon his right to rely on the evidence that was otherwise adduced of
his experience in jail, including the intrusive searches which he experienced. In the
result, the Plaintiff submitted that it was wrong on the part of the Defendants to suggest
some prejudice in their not being able to investigate these matters.

391. Third, the Plaintiff submitted that the Defendants submitted that the Plaintiff’s human
rights are of less value than others. This submission was referable to the Defendants’
submission that the facts of this case could be distinguished from the facts in Spautz. It
is worth setting out in full the submission that the Plaintiff objects to in full:

With respect, that comparison is inact. Mr Butterworth [the Plaintiff in Spautz] was a senior
lecturer with no prior criminal history who had suffered considerable reputational damage
as a result of his arrest and detention.

392. The Plaintiff submitted that this submission (directed at distinguishing the present case
from that of Spautz) was, in effect, a submission that the Plaintiff’s human rights were
of a lesser value than that of a senior lecturer and was based on the Plaintiff’s “status”
and “criminal history”.

393. Fourth, the Plaintiff submitted that counsel for the Defendants asked questions which
were “clearly designed to belittle and humiliate the Plaintiff”. This submission was
directed to counsel asking the Plaintiff what the Plaintiff submitted were irrelevant
questions about him vomiting and his separation from his wife.

394. The Plaintiff submitted that these matters establish his claim for aggravated damages
and referred me to the case of Lewis where Refshauge J discussed awards of
aggravated damages in false imprisonment cases, stating at [285] that:

… a failure to offer an apology may be relevant to the assessment of ordinary general

damages if it shows a continuing injury to the plaintiff’s feelings without justification, but will
not justify an award of aggravated damages unless the failure can be shown to have
been the result of conduct that lacked bona fides or was otherwise improper or
unjustifiable …

(emphasis added)

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395. As is apparent from his Honour’s reasoning, the absence of an apology alone is not
sufficient to support an award of aggravated damages. Rather, the Plaintiff must
demonstrate that such a failure is the result of conduct that lacked bona fides or was
otherwise improper or unjustifiable. The Defendants referred me to other authorities in
support of that proposition, as, in my view, those principles are not in contention
between the parties there is no need to consider those cases in detail.

396. The Defendants submitted that in this case, any such failure to apologise was not a
result of conduct that lacked bona fides or was otherwise improper or unjustifiable.
Overall, the Defendants submitted that they were entitled to defend the proceedings in
the manner that they did and the conduct of the Defendants and their legal
representatives throughout the hearing was not lacking in bona fides or otherwise
improper or unjustifiable.

397. In relation to each of the points advanced by the Plaintiff, the Defendants submitted the
following.

398. First, the Defendants submitted that the explanation of the purported lack of apology
advanced by the Plaintiff does not mirror the actual conduct of counsel. It is useful to
set out in full the oral submission advanced by counsel for the Defendants:

… as your Honour knows, that's not exactly what happened and we point this out in the
schedule of damages. First of all, the exchange which is referred to did not occur in the
presence of the plaintiff. The plaintiff had been sent out of the court. So, it was an occasion
where an objection had been taken to the question and the plaintiff wasn't there. And it's
not as if I came out and said, your Honour, I want to announce to your Honour that I don't
apologise. What happened was I'd expressed some regret to the plaintiff when I stood up.
My learned friend took some issue with that and pointed out there hadn't been an apology
and your Honour asked me the direction question, 'Do you have instructions to apologise?'
and I said, 'No.' Your Honour, that's what happened and in my submission there's nothing
improper or unjustified about that. …

399. I agree with that submission. I note, in particular, that counsel for the Defendants had
expressed a general regret to the Plaintiff and had not refused in front of the Plaintiff to
apologise to him as the Plaintiff submitted. I do not find that the conduct lacked bona
fides or was otherwise unjustifiable.

400. In relation to the submission that in closing the Defendants had minimised the Plaintiff’s
experience, counsel for the Defendants submitted that the points had been properly
made. The question to be asked is whether the conduct rises to such a level that is
improper or unjustifiable. The submission by the Defendants concerning the Plaintiff’s
evidence as to the Plaintiff’s experience in jail does not in this case rise to such a level.
The submission arose in the context of a case where specific instances that had
occurred in jail had not been pleaded, and the Defendants accepted that the Court

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 could make a general finding as to the conditions in the jail. I have addressed both of
these matters in more detail in my reasons on the substantive issue. In those
circumstances, the Defendants had a basis on which to advance their submission, and
there is nothing in the manner that the submission was put that could be construed as
an attempt to suggest the Plaintiff was lying, or that the events had not occurred. That
is to minimise them. Rather the submission was that as specific matters had not been
pleaded this Court ought not to have regard to that particular evidence.

401. In relation to the contention by the Plaintiff that the Defendants submitted that the
Plaintiff’s human rights are of a lesser value than others, the Defendants submitted that
this was directed to their submission that Spautz is not a comparative case which did
not rise to the level of a submission that the Plaintiff’s human rights are of any lesser
value than any other human. I agree. There is nothing from the language of the
submission that would tend to suggest that the Plaintiff’s human rights were of any
lesser value than any other individual. If such a submission were made it would
obviously be wrong. The submission was merely directed to distinguishing the facts of
this case from the facts of Spautz a case that counsel for the Plaintiff relied on in
relation to general damages. There is nothing in the submission that was improper or
unjustifiable.

402. In relation to the final point, the Defendants submitted that the questions were not
directed to a belittling purpose and that after a couple of questions concerning the night
of his arrest an objection was made by counsel for the Plaintiff. Following an “accord”
that the Plaintiff would not take a Browne v Dunn point, the Defendants’ counsel
stopped the line of questioning. In my view, there was nothing improper or unjustified in
relation to that questioning of the Plaintiff.

403. The Plaintiff also advanced a general submission as to the conduct of the Defendants
in defending the proceeding, referring the Court to the statutory model litigant
obligations contained in the Law Officer (Model Litigant) Guidelines 2010 and, in
particular, cl 3.1(6) which requires the First Defendant and its agencies not to:

… rely on a technical defence which will delay or circumvent the resolution of the issues
involved in the litigation …

404. This was supplemented by the common law model litigant obligation: Melbourne
Steamship Co Ltd v Moorehead (1915) 15 CLR 333 at 342.

405. The Plaintiff submitted that were I to find that the Defendants pursued any technical
defences or in the conduct of the proceeding breached their model litigant obligations
then this could inform my assessment of aggravated damages. In my view, the
Defendants did not rely on technical deficiencies in this proceeding or pursue the case

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 in a manner that breaches their common law model litigant obligations. I note that
counsel for the Plaintiff did not identify any specific defences as being technical in
nature or not pursued in a bona fide manner, nor did counsel identify any specific
conduct that was said to have breached the common law model litigant obligation.

406. In my view, the Defendants’ conduct in defending the proceeding did not rise to the
level of being improper or unjustifiable. The decision to therefore contest the
proceedings is not lacking in bona fides, nor was there any conduct on behalf of the
Defendants’ legal representatives that would justify an award of aggravated damages.

407. There is one final matter that the Plaintiff submitted justified an award of aggravated
damages.

408. In relation to exemplary damages, the Plaintiff had originally submitted in his written
closing submissions that such an award should be made on the basis of the five days
the Plaintiff spent in custody after the issue concerning the legal effect of the SIFVO
had been raised with the DPP by the Plaintiff’s lawyers.

409. There was no reference to exemplary damages in the Plaintiff’s final schedule of
damages, nor was it referred to in the pleadings. In oral submissions in reply, counsel
for the Plaintiff conceded that he did not seek exemplary damages, however submitted
that the lack of investigation by the DPP and the failure to seek to list the matter
promptly after the matter was raised by Legal Aid justified a significant award of
aggravated damages.

410. The Defendants submitted that the Court should not entertain the submission, it having
been made for the first time in closing submissions. The Defendants further submitted
that there was no evidence before the Court as to what occurred in the five days after
the notification (in part because exemplary or aggravated damages on that basis had
not been pleaded and so no evidence on the issue had been led).

411. In my view, there is not sufficient evidence before the Court as to what occurred after
Legal Aid notified the DPP of the concern that the SIFVO was not of any legal effect.
That lack of evidence cannot support a finding that the DPP’s conduct was
uneasonable. There is not, in my view, sufficient evidence for the Court to find that any
delay on behalf of the DPP was lacking in bona fides or was otherwise improper or
unjustifiable.

412. Accordingly, no award for aggravated damages will be made.

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Interest
413. Had my conclusions been different in relation to the liability issues, I would have given
the parties leave to provide revised proposed interest figures for interest on past
economic loss, future economic loss and interest on general damages as at the date of
the judgment.

Conclusion on Damages
414. In conclusion on damages, in the event that I had reached a different view concerning
the liability issues then, in my view, it would have been appropriate to award the
Plaintiff the following damages:

Head of Damages Amount I would have Reference Paragraph

awarded

General Damages $40,000 [364]-[383]

Past Interest To be calculated [413]

Future Interest To be calculated [413]

Past economic loss $12,600 [340]-[343]

Interest on past economic To be calculated [413]

loss

Superannuation on past $1,386 [344]-[355]

economic loss

Future economic loss $10,000 [356]-[363]

Aggravated Damages None [384]-[412]

Total $63,986

Stay Proceedings
415. On 2 July 2021, Crowe AJ stayed the proceedings against the Third and Fourth
Defendants until further order. The Plaintiff indicated in closing submissions that he
would be in a position to “address the conduct of [the] proceedings [against the Third
Defendant and Fourth Defendant] at the Court’s convenience” following provision of the
reasons for decision.

416. Accordingly, I shall make no orders at this time in relation to the orders of Crowe AJ on
2 July 2021. If the Plaintiff seeks any further order or direction in relation to the stay

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 orders, he may file and serve written submissions in relation to the issue within 14
days. The Defendants may then file and serve any written submissions in reply 7 days
thereafter. Subject to further order or direction, any application to vary the stay orders
is to be dealt with on the papers.

417. In those submissions, the parties also have leave to indicate what, if any, further orders
they seek regarding the proceedings as against the Third and Fourth Defendants.

Costs
418. My provisional view in relation to costs is that, in accordance with the general rule,
costs ought to follow the event. The Defendants will be awarded costs on a party-party
basis.

419. If, however, either party wishes to advance a different contention in light of these
reasons they may file and serve brief written submissions limited to four pages in
length relation to costs within 14 days. If any such submissions are filed, any reply
submissions limited to two pages in length are to be filed and served 7 days thereafter.
Subject to further order or direction, any outstanding costs issues will be dealt with on
the papers.

Orders

420. I make the following orders:

1. The Plaintiff’s application against the First Defendant and the Second Defendant is
dismissed.

2. The Plaintiff is to pay the First and Second Defendant’s costs of the proceeding as
assessed or agreed.

3. The parties have leave to file submissions limited to four pages in length if any party
seeks a different costs order within 14 days of the date of these reasons for
judgment.

4. The parties have leave to file submissions in reply limited to two pages in length
seven days after the deadline in order 3.

5. Subject to further order or direction, any outstanding costs issue is to be decided on

the papers.

6. If any submissions on costs are filed by any party, the operation of order 2 is stayed
until further order or direction.

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7. The Plaintiff has leave to file written submissions if he seeks any order regarding the
stay as against the Third and Fourth Defendants within 14 days of the date of these
reasons for judgment.

8. The Defendants have leave to file submissions in reply within seven days after any
submissions are filed by the Plaintiff concerning the Third and Fourth Defendants.

9. Subject to further order or direction, any application regarding the stay is to be dealt
with on the papers.

I certify that the preceding four-hundred and twenty

[420] numbered paragraphs are a true copy of the
Reasons for Judgment of her Honour Justice
Loukas-Karlsson

Associate: Andrew Ray

Date: 28 September 2022

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