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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Monaghan v Australian Capital Territory (No 2)

Citation: [2016] ACTSC 352

Hearing Dates: 12 – 14 October 2015

Decision Date: 30 November 2016

Before: Mossop AsJ

Decision: See [261]

Catchwords: CRIMINAL PROCEDURE – BAIL – Variation of bail conditions – Whether subject of bail is required to sign a further undertaking or notice to make variation of conditions of bail effective – Significance of written undertaking to appear and comply with any conditions – Variation to conditions becomes effective upon an order being made by the Court – Plaintiff did not have to sign a notice of variation TORTS – Negligence – Failure by Registry staff to provide accurate information to Australian Federal Police about bail conditions – Whether ACT breached a duty of care owed to the plaintiff – Whether damages arising from detention of plaintiff recoverable in cause of action in negligence – Extent to which Civil Law (Wrongs) Act 2002 (ACT), s 35 precludes award of damages arising from detention HUMAN RIGHTS – Compensation – Human Rights Act 2004 (ACT), s 18(7) – Whether s 18(7) provides freestanding cause of action – Whether plaintiff entitled to compensation for being arrested and detained – Whether plaintiff entitled to compensation greater than awarded in common law claim

Legislation Cited: Australian Federal Police Act 1979 (Cth), ss 8(1)(a), 8(1A), 64B Bail Act 1992 (ACT), ss 28, 33, 49, 56A Bail Amendment Act 2004 (ACT) Charter of Human Rights and Responsibilities 2006 (Vic), s 39 Civil Law (Wrongs Act) 2002 (ACT), ss 5, 8, 11B, 12, 15, 19, 33, 34, 35, 36, 41, 47, 48, 93, 99, 108, 109, 110, 111, 112, 113, 114 Corrections Management Act 2007 (ACT), ss 24, 25 Human Rights Bill 2003 (ACT) Human Rights Amendment Bill 2007 (ACT) Human Rights Act 2004 (ACT), ss, 18, 18(7), 23, 30, 32, 37, 38, 39, 40B, 40C Legislation Act 2001 (ACT), ss 127, 142, 245, 247, 250

Cases Cited: Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649 Coyle v State of New South Wales [2006] NSWCA 95 Enever v The King [1905] HCA 3; (1906) 3 CLR 969 Fernando v Commonwealth [2010] FCA 753; (2010) 271 ALR 521 Fernando v Commonwealth [2014] FCAFC 181; (2014) 231 FCR 251 Fok Lai Ying v Governor-in-Council [1997] 3 LRC 101 Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1 Hage-Ali v State of New South Wales [2009] NSWDC 266 Hebditch v Sheppeard; Slaven Motors Pty Ltd (Unreported, Supreme Court of the Australian Capital Territory, Gallop ACJ, Higgins and Ryan JJ, 12 July 1996) Hook v Cunard SS Co [1953] 1 All ER 1021 Houda v State of New South Wales [2005] NSWSC 1053 Kennedy v Mangos [2001] ACTSC 92 Lamb v Cotogno [1987] HCA 47; 164 CLR 1 Manga v Attorney-General [2002] 2 NZLR 65 Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 Morro v Australian Capital Territory [2009] ACTSC 118; (2009) 4 ACTLR 78 Moses v State of New South Wales (No 3) [2010] NSWDC 243 Mount Isa Mines v Pusey [1970] HCA 60; (1970) 125 CLR 383 Murray v Ministry of Defence [1988] 2 All ER 521 Neilsen v Attorney-General [2001] 3 NZLR 433 New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168 New South Wales v Ibbett [2006] HCA 57 (2006) 229 CLR 638 New South Wales v Radford [2010] NSWCA 276; (2010) 79 NSWLR 327 New South Wales v Tyszyk [2008] NSWCA 107 Paramore v Clarke [2001] ACTSC 14 Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58 Rook v State of New South Wales (No 3) [2015] NSWDC 154 Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269 Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 Smith v Iffla (1881) 7 VLR (L) 435 Spautz v Butterworth (1996) 41 NSWLR 1 State of New South Wales v Abed [2014] NSWCA 419 State of New South Wales v Spearpoint [2009] NSWCA 233 State of New South Wales v Zreika [2012] NSWCA 37 State of NSW v Delly [2007] NSWCA 303; (2007) 70 NSWLR 125 Strano v Australian Capital Territory [2016] ACTSC 4 Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118 Vignoli v Sydney Harbour Casino [1999] NSWSC 1113 Vulin v Cox [2005] ACTCA 22 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 Walter v Alltools Ltd (1944) 171 LT 371 Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465 Zaoui v Attorney-General [2005] 1 NZLR 577 Zaravinos v New South Wales [2004] NSWCA 320; (2004) 62 NSWLR 58

Texts Cited: Fleming, J, The Law of Torts (3rd ed, The Law Book Co Ltd, 1965) Gans, J, “The Charter’s irremediable remedies provision” (2009)

2 33(1) Melbourne University Law Review 105 Heffey, P G, “Negligent infliction of imprisonment: actionable “per se” or “cum damno”? (1983) 14 Melbourne University Law Review 53 Prosser, W L, “False imprisonment: consciousness of confinement” (1955) 55 Columbia Law Review 847

Parties: Jason Arthur Monaghan (Plaintiff) Australian Capital Territory (Defendant)

Representation: Counsel P Tierney (Plaintiff) P Saidi (Defendant)

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

File Number: SC 77 of 2014

MOSSOP AsJ:

Introduction 1. In March 2011 the plaintiff was on bail in relation to criminal proceedings pending in the Supreme Court. On 24 March 2011 the plaintiff attended the Supreme Court and had his bail conditions varied so as to reduce the frequency with which he had to report to police. After the proceedings were concluded staff at the Registry of the Supreme Court (Registry) told him that he was free to go. Notwithstanding the orders of the Court varying the conditions of his bail, the Registry staff communicated to the Australian Federal Police (AFP) that his bail was continued on the same conditions that were previously in place. Sometime later a staff member within the Registry discovered that the plaintiff’s bail had in fact been varied. The AFP were not notified of that discovery. As a consequence, when the plaintiff failed to report at the frequency required by his unamended bail conditions he was arrested and brought before the Court.

2. The plaintiff has sued the defendant, the Australian Capital Territory, in negligence, alleging that it breached a duty of care owed to the plaintiff and that his arrest and detention arose from that breach. The plaintiff has also claimed that he is entitled to compensation under s 18(7) of the Human Rights Act 2004 (ACT) (HR Act) for being arrested and detained.

Facts

Original bail conditions 3. In March 2011 the plaintiff was facing criminal charges in the Supreme Court. What those charges were was not disclosed by the evidence.

4. On 10 March 2011 the plaintiff signed a document headed “BAIL ACT 1992 NOTICE OF CONTINUANCE OF BAIL”. It included the following:

3 [Coat of Arms] ACT Magistrates Court & Tribunals BAIL ACT 1992 NOTICE OF CONTINUANCE OF BAIL [File and case numbers] NAME OF ACCUSED PERSON: JASON ARTHUR MONAGHAN DOB [date set out] ADDRESS OF ACCUSED PERSON: [address set out] DATE OF UNDERTAKING TO APPEAR: 10 March 2011 TAKE NOTICE that the proceedings in respect of which you gave an undertaking to appear have been adjourned: To the Supreme Court at Knowles Place Canberra City on Thursday 24 March 2011 at 9:30 AM. Bail is continued subject to conditions, which are as follows: … 6. REPORT TO WODEN POLICE STATION, DAILY BETWEEN THE HOURS OF 8 AM AND 8 PM. … DATED this 10th day of March 2011. [Signature] Court Officer [Signature] Accused Person (optional) TAKE NOTICE: A failure to attend before the court in accordance with this Notice may result in the issue of a warrant for your arrest without further notice to you.

Application to vary bail conditions 5. The plaintiff’s case was before Refshauge J on 24 March 2011. Ms McMurray appeared for the prosecution and Mr Lalor appeared for Mr Monaghan. The proceedings commenced at 9:48 am. The prosecution requested six weeks to file and serve the indictment, case statement and questionnaire. There was no objection to this from Mr Lalor. As a consequence his Honour required the documents to be filed and served by 5 May 2011 and the accused to file and serve his questionnaire before 12 May 2011. He appointed the second sittings of the Court in 2012, namely, 14 May to 27 July 2012 as the date when the trial would be listed for hearing. The application to vary bail was then dealt with. The transcript records as follows:

HIS HONOUR: … Now, bail? MR LALOR: Your Honour, currently he’s required to report to the officer in charge of Woden Police Station daily, between the hours of 8 am and 8 pm. HIS HONOUR: Yes. MR LALOR: It’s not opposed then we’ll change that to Monday, Wednesday and Friday, your Honour. Ms MCMURRAY: Yes, if I can just confirm that the accused is also under the supervision of Corrective Services.

4 HIS HONOUR: Yes, he is. Paragraph 1, and he’s got a surety, yes. Is that opposed? Ms MCMURRAY: That’s not opposed. HIS HONOUR: Not opposed. All right, thank you. In relation to his bail I will vary condition 6 to require him to report to Woden police station every Monday, Wednesday and Friday between the hours of 8 am and 8 pm. 6. The proceedings were adjourned at 9:50 am.

What happened following the adjournment of the proceedings 7. Two documents appear to have been prepared by his Honour’s associate. The first was a pro forma document relating to criminal directions. That document recorded directions relevant to preparation for the trial, namely, the filing and service of the questionnaire by the prosecution and defendant. There was also the note that his Honour “Appoints the 2nd sittings of 2012”. There is no reference to bail.

8. Another document headed “Record of proceedings” is what is generally referred to as a bench sheet and records:

HH varies condition 6 of Mr Monaghan’s bail to read: “Report to Woden Police Station every Monday, Wednesday and Friday between the hours of 8 am and 8 pm”. 9. There is no direct evidence as to the identity of the person who prepared the documents, when they were prepared or when they were placed on the file.

10. Following the adjournment of the proceedings steps were taken by Registry staff based on the proposition that the bail had simply been continued without any variation. Exhibit 1 was a two-page document headed “Bail Act 1992 ACT Supreme Court Notice of Continuance of Bail” which provided:

BAIL ACT 1992 ACT SUPREME COURT NOTICE OF CONTINUANCE OF BAIL NAME OF ACCUSED PERSON: JASON ARTHUR MONAGHAN (SCC 99/2011) ADDRESS OF ACCUSED PERSON: [address set out] DATE OF UNDERTAKING TO APPEAR: to be Advised TAKE NOTICE that the proceedings in respect of which you gave an undertaking to appear have been adjourned to: The Supreme Court at Knowles Place Canberra City CONDITIONS: Bail Conditions to continue the same as per previous bail attached Accused Person ...... Court Officer ...... Dated 24 March 2011 ...... [scissors symbol] ...... Please acknowledge and return to the Registrar of the ACT Supreme Court in (SCC 99/2011)

5 I ...... have received a copy of my bail continuance Signed …...... Date …...... 11. The second page of the document was the “Notice of Continuance of Bail” described at [4] above.

12. At 10:50 am the document was sent from the ACT Supreme Court to facsimile numbers identified as “Corrective Services”, “Mag Charge” and “Watchhouse”. Relevantly, I infer that the reference to “Watchhouse” is a reference to a pre- programmed number of a facsimile machine for the AFP at the ACT Watchhouse. The evidence of Mr Sean Maxwell (the AFP officer who arrested the plaintiff on 27 March 2011), which I accept, was that the results of decisions in relation to bail were communicated by the Registry to the ACT Watchhouse. Entries were then made on the AFP computer system and hard copies of the relevant documents were distributed to the police station to which a person subject to bail was required to report.

13. Admitted into evidence was a file note of Gaeleen Curley dated 28 March 2011. She is described on the document as “Acting Unit Manager/Sheriff”. She was not called to give oral evidence. The file note of Ms Curley describes, to some extent, what happened next. Relevantly, the file note provided:

Jason Monaghan’s matter was listed in the criminal directions list on 24 March 2011. After his matter was heard, he attended the Registry counter to sign his bail. He was waiting for some time as his file had not come up from court. When the file was received, there was no reference to bail on the bench sheet, so Mr Monaghan was advised that his bail was continued and he was free to go. A little while later when I checked the Registrar’s notes from the directions list, I realised that Mr Monaghan’s bail had been varied – the variation being recorded on separate bench sheet. I contacted the Aboriginal Legal Service at 11:30 am on 24 March to speak to Monaghan’s solicitor Michael Lalor, however he was unavailable so I left a message with the receptionist for Mr Monaghan to attend the Supreme Court to sign his bail variation. Mr Monaghan didn’t attend on 24 March 2011 so at 11:24 am on Friday 25 March 2011, I sent an email message to Michael Lalor asking him to contact Mr Monoghan [sic] and advise him to attend the Supreme Court to sign his bail variation. Mr Monaghan didn’t attend the Registry on Friday and I understand that he was taken into custody over the weekend for breaching his bail. 14. The file note does not explain what was meant by the reference to “sign his bail” and “sign his bail variation” or identify where any such requirement came from.

15. The time at which Ms Curley discovered the variation of bail may be inferred from the time of an email which she sent to Mr Lalor, the solicitor who had appeared for Mr Monaghan earlier that day. The email referred to in Ms Curley’s file note was sent at 11:24 am on 25 March 2011. It provided as follows:

Michael Jason was in the directions list yesterday and his bail was varied. Unfortunately he was incorrectly advised that his bail was continued and he didn’t need to sign anything. When I realised the error I contacted your office and asked that Jason be advised to come in and sign his bail variation but as yet Jason hasn’t come in. Can you let me know if you are able to contact Jason and if possible, get him to come in today.

6 Thanks Gaeleen 16. In summary, the chronology of events was as follows:

(a) Following the conclusion of the hearing on 24 March (9:50 am), after some delay, the file was delivered to Registry staff.

(b) An unidentified staff member examined the file and did not find any bench sheet recording a variation of bail.

(c) Mr Monaghan was told by an unidentified member of the Registry staff that he could go without signing any document. He left.

(d) Paperwork was generated and sent to the AFP (10:50 am) consistent with bail having been continued on the same terms as previously imposed.

(e) Ms Curley checked a Registrar’s notes of the proceedings and realised that the bail variation had been recorded on a separate bench sheet. The evidence does not establish whether that bench sheet was on the file when it was originally delivered to the Registry staff.

(f) Ms Curley telephoned Mr Lalor’s office on 24 March (11:30 am) after making that discovery and, when Mr Monaghan did not return, sent a follow up email to Mr Lalor on 25 March (11:24 am).

17. Neither party called Ms Curley to give evidence.

18. As will be apparent from the above, Ms Curley’s file note and her actions on 24 and 25 March 2011 proceeded on the basis that Mr Monaghan was required to “sign his bail variation”. As I will endeavour to explain below, any variation to Mr Monaghan’s bail conditions was not contingent upon him signing any further document. If Ms Curley was operating on the understanding that Mr Monaghan was required to “sign his bail variation” in order to make it effective, there was no explanation in the evidence called or tendered at the hearing as to why, having detected the error, and being aware of the misleading information that was given to the plaintiff that he was free to leave without having signed any further document, she did not take steps to put the AFP on notice of the fact that Refshauge J’s order had not been properly implemented or that the plaintiff would reasonably understand that he was only required to report Monday, Wednesday and Friday. Similarly, if the Registry staff were not of the view that Mr Monaghan was required to “sign his bail variation” there is no explanation of why no steps were taken to correct the erroneous statement, communicated earlier to the AFP, that bail had been continued without variation.

Arrest and detention 19. AFP records (Exhibit 7) show that at 11:35 am on Sunday, 27 March 2011 Mr Monaghan attended the Woden Police Station. He had not attended the police station on Saturday, 26 March 2011. Mr Maxwell advised Mr Monaghan he was in breach of his bail conditions and he was placed under arrest. The document which is Exhibit 2 indicates that the bail conditions which were being relied upon by the police were those which were dated 10 March 2010, which included a requirement that Mr Monaghan report daily. It is notable that under the bail conditions as varied Mr Monaghan was not required to report on Saturday, 26 March 2011 and hence had not

7 in fact breached the bail conditions as articulated by Refshauge J. It is an oddity that Mr Monaghan was attending the police station on Sunday, 27 March 2011 when, under the bail conditions as varied he was not in fact required to attend until the next day. This oddity was not explained in his oral evidence.

20. The AFP records also show that shortly after Mr Monaghan’s arrest, while he was located in a holding cell at Woden Police Station, he was yelling and screaming in his cell and the police perceived him to be highly aggressive. Because the police needed to transport him to the ACT Watchhouse they considered that handcuffs were going to be reasonably necessary to safely transport him. They negotiated their way into the cell and placed handcuffs on Mr Monaghan without using physical force. He was transported to the ACT Watchhouse where the handcuffs were removed.

21. He remained in custody at the Watchhouse on the night of 27 March 2011. He was provided with dinner and breakfast and was given an opportunity to speak to “Aboriginal Legal Aid”. Police records indicate that his stay there was uneventful.

Proceedings before Penfold J 22. Mr Monaghan was transported from the ACT Watchhouse to the Supreme Court at about 8:30 am on Monday, 28 March 2011. He was brought before Penfold J at about 11:52 am. Mr Lalor appeared on his behalf and Ms Jones appeared for the prosecution. Proceedings concluded at 11:58 am.

23. The following appears in the transcript of the proceedings:

Her Honour: Right. Thank you Mr Lalor. Now we are short Mr Monaghan but I think he’s probably on his way up. This is the case where there seems to have been an unfortunate glitch in the Supreme Court registry is that--- Mr Lalor: Your Honour, I think Mr Monaghan appeared in the directions this last Thursday and was granted a variation bail to report three times a week. Her Honour: Yes. Mr Lalor: He didn’t enter into his new bail undertaking. I had a number of matters in the directions list and I wasn’t able to take him up and make sure he signed his bail. We were notified by the registry that was the case; we tried to make contact with him last week unsuccessfully. Unfortunately I was out of the office on Friday so I couldn’t take a personal hand in the matter. Consequently I believe he is in breach for a failure to report on Sunday. His previous bail condition was to report every day. … Her Honour: Well look, I’ve got a note from registry which suggests in fact that it was a mistake in registry that led to that problem. That it wasn’t Mr Monaghan’s problem. Now I think I’m where I should hand that down to you for the two of you to look at while we wait for Mr Monaghan because it--- … 24. The bench sheet of that appearance records:

HH notes the mistake made by Registry in relation to the breach.

HH orders that no action on breach of bail be taken.

Mr Monaghan to sign the variation of bail made Refshauge J on 24 March 2011.

8 25. It should be noted at this stage that both Mr Lalor, in his submissions, and Penfold J proceeded on the assumption that it was essential for Mr Monaghan to “enter into his new bail undertaking” or “sign the variation of bail” in order for the varied conditions to become effective.

26. On 28 March 2011 Mr Monaghan signed a “Notice of Variation of Bail” recording that condition 6 required him to report to the Woden Police Station every Monday Wednesday, Friday between the hours of 8 am and 8 pm.

27. The Notice of Variation of Bail was sent by facsimile from the Supreme Court to the ACT Watchhouse on 28 March 2011 at 12:19 pm.

28. On the afternoon of 28 March 2011 at 2:27 pm Penfold J’s associate forwarded Ms Curley’s file note to Mr Lalor. He forwarded it to two other people, one of whom appears to have been a field officer with the Aboriginal Legal Service, Ms Morrisey. Mr Lalor’s only comment was “SHOCKER”. Ms Morrissey replied “And My arguement here is that I did contact his mum and she was going to tell him to go back in and sign his bail papers on the day” [sic].

29. Mr Monaghan was arrested for a breach of bail on 18 May 2011 for failing to report to Woden Police Station on Monday, 16 May 2011.

30. He was arrested again on 7 June 2011 for a breach of bail involving a failure to accept the supervision of ACT Corrective Services.

The provisions of the Bail Act 1992 relevant to variation of conditions of bail 31. As at 24 March 2011 the relevant provisions of the Bail Act 1992 were as follows:

19 General provisions relating to court bail

(1) Subject to section 20, a court may—

(a) grant bail to an accused person who is being held in custody in relation to the offence with which the person has been charged; or

(b) enlarge, vary or revoke bail granted to an accused person.

...

Part 5 Bail conditions and undertakings to appear

24 Conditions of bail A court or an authorised officer may grant bail without imposing conditions or subject to bail conditions imposed— (a) for a court—by order; or (b) for an authorised officer—in writing. 25 Conditions on which bail may be granted to adults (1) The following conditions may be imposed on a grant of bail to an adult: (a) conditions about the person’s conduct while released on bail; ... (4) Without limiting subsection (1) (a), the requirements that an accused person may be required to observe relating to his or her conduct while released on bail include—

9 (a) a requirement that the accused person report periodically, or at specified times, at a stated place; and ... 28 Undertakings to appear (1) A person may be released on bail only if the person gives a written undertaking— (a) to appear before a stated court at the place, date and time— (i) stated in the undertaking; or (ii) notified to the person by a police officer; and (b) to comply with the bail conditions (if any). Note If a form is approved under s 58 for an undertaking, the form must be used. (2) For a continuation of bail, the person may undertake to appear at any time when, and at any place where, proceedings in relation to the offence with which the person has been charged may be continued. (3) An undertaking may be given in relation to more than 1 offence. (4) A court must accept an undertaking given under this section as proof of the matters stated in it if there is no evidence to the contrary. (5) Subsection (1) (a) does not apply to a person in relation to a breach of the peace or apprehended breach of the peace if no further appearance is required. 31 Bail requirements (1) An undertaking to appear may be given to— (a) a court; or (b) a registrar or deputy registrar; or (c) an authorised officer; or (d) for an accused person who is at a correctional centre or a NSW correctional centre—the person in charge of the centre. ... 33 Continuation of bail and undertakings (1) If an accused person has given an undertaking to appear at a place, date and time at which proceedings in relation to the offence may be continued, whether on any adjournment, postponement or other deferment of the proceedings, or by way of committal, a court may continue the bail already granted in relation to the offence, whether or not the accused person is present in court. (2) If bail is continued under subsection (1), the undertaking to appear and the bail conditions continue to apply, except to the extent that the undertaking or condition otherwise provides or the court otherwise orders. Note A court continuing bail must give notice of the continuation, bail conditions and place, date and time to which the proceedings are adjourned, postponed or deferred (see s 34 (4)). (3) If no direction is made by the court in relation to bail, whether or not the accused person appears in accordance with the undertaking— (a) the court is taken to have continued bail; and (b) the undertaking to appear and any bail conditions continue to apply.

10 (4) If the hearing of a charge against an accused person is adjourned or postponed, the court may— (a) continue the person’s bail; or (b) make another order about bail. (5) However, if a deposit has been made, or security given, by a surety in accordance with a bail condition, the court must not continue bail without the surety’s consent unless it is a condition of bail that the deposit or security continues to apply if bail is continued. (6) If bail is continued— (a) the undertaking to appear is taken to be an undertaking to appear an any time when, and at any place where, proceedings in relation to the offence with which the person has been charged may be continued; and (b) any bail conditions continue to apply. (7) If an accused person has been released on bail and the court is satisfied that the accused person is because of illness or accident or other sufficient cause unable to appear personally before the court on the day when the person is required to appear, the court may, in the absence of the accused person, order the person to be further remanded to the place, date and time that the court considers appropriate and may order that the undertaking to appear given by the accused person and any agreement entered into under a condition of the grant of bail be continued so as to require the appearance of the accused person at every place, date and time to which the accused person is remanded or the hearing adjourned, postponed or otherwise deferred. 34 Written notice of conditions of bail (1) A court or authorised officer granting bail to an accused person— (a) must give the accused person a written notice setting out— (i) the person’s obligations under the person’s bail conditions; and (ii) the consequences of any failure by the person to comply with the conditions; and (b) must be satisfied, before releasing the accused person, that the person will comply with the conditions. Note If a form is approved under s 58 for a notice under this section, the form must be used. (2) ... (3) If a bail condition is imposed or varied on a review under part 6 of a decision made in relation to bail, the court or authorised officer imposing or varying the condition— ... (4) A court continuing bail on an adjournment or a postponement of proceedings must immediately give, or cause to be given, to the accused person a written notice that— (a) states that bail is continued until the hearing is resumed or stated; and (b) states the conditions on which bail is presently allowed; and (c) states the place, date and time to which the proceedings are adjourned or postponed or states that the proceedings are adjourned or postponed to a place, date and time that are from time to time stated in a notice given or sent to the accused person as prescribed by regulation. ... 49 Failure to answer bail

11 (1) A person commits an offence if the person— (a) gives an undertaking to appear before a court; and (b) fails to carry out the undertaking. Maximum penalty: 200 penalty units, imprisonment for 2 years or both. (2) The court may issue a warrant to arrest the person and to bring the person before the court. (3) Subsection (1) does not apply if the person has a reasonable excuse for failing to carry out the undertaking. ... 56A Arrest without warrant of person on bail (1) This section applies if a person has been granted bail in the ACT, a State or another Territory. (2) A police officer may arrest the person without warrant if the officer believes on reasonable grounds that the person— (a) has failed to comply with a bail condition; or (b) will not comply with a bail condition. (3) The police officer must bring the person before a court as soon as practicable. (4) The court may— (a) for a person granted bail in the ACT—exercise the same powers in relation to bail as it has in relation to any other accused person in custody; or (b) ... (5) ...

32. Variation of bail conditions is a topic which is given little explicit attention in the Act. Section 19 provides a general power to “enlarge, vary or revoke bail”. Other than this, variation of bail conditions is only referred to in the context of the powers of courts to review bail decisions: see ss 34(3), 39, 45, 46. I have not set out the provisions relating to review of bail decisions which are contained in pt 6 of the Act as they do not relate to the general power to vary bail conditions and are not relevant in the present case.

33. In the present case the issue is whether or not the variation of Mr Monaghan’s bail conditions became effective by reason of the making of the order by Refshauge J varying his conditions of bail or whether Mr Monaghan was required to sign some additional document in order to make that variation effective. That some additional document was required to be signed was certainly the basis upon which Ms Curley’s note was prepared and appeared to be a common assumption at the point when Mr Monaghan appeared before Penfold J. The parties appeared to conduct the case on the basis that there was in fact a requirement for a further document to be signed in order that the variation to the conditions become effective, but one of the submissions of the plaintiff was that this was not the case and that the variation to the bail conditions became effective as a consequence of the order of the Court.

34. What is required upon a variation of the conditions of bail is dependent upon the relationship between the undertaking to appear referred to in s 28, the provisions of

12 s 33 relating to continuation of bail and undertakings and s 34 which relates to the giving of notice of conditions of bail.

35. Section 28 requires that a written undertaking be given as a precondition to a person being “released on bail”. Notwithstanding the heading of the section, the provision requires not only an undertaking “to appear”, but also an undertaking to comply with any bail conditions. The distinction between what is stated in the heading to s 28 and the content of the section is explained by the legislative history to which I will return below. I have emphasised the terms “released on bail” because those words are consistent with the undertaking being required at the point when the person is released from custody either following arrest or following a grant of bail following a revocation of bail.

36. Subsection 28(2) is rather obscurely worded. However, it has the effect that in a single undertaking there can be not only an undertaking to appear “before a stated court at the place, date and time … stated in the undertaking” given under s 28(1), but also an undertaking “to appear at any time when, and at any place where, proceedings in relation to the offence with which the person has been charged may be continued”. This means that an undertaking can operate both in relation to the first appearance before a court after the occasion when bail was granted as well as in relation to subsequent appearances following a continuation of bail on that or a subsequent occasion.

37. The terms of s 31 are consistent with the undertaking to appear being required only at the point of release from custody. It limits the persons to whom an undertaking may be given to ACT entities (s 31(1)(a)-(c)) or a person in charge of New South Wales correctional centre so as to accommodate the possibility that, as a result of ss 24 – 25 of the Corrections Management Act 2007 (ACT), a person was detained in a New South Wales facility. The section would not accommodate the giving of a bail undertaking following a variation of bail by a person who was unable to give the undertaking to one of the persons identified in s 31, for example, if the person was in another state of Australia.

38. Section 33 deals with a number of different situations. Section 33(1) and (2) deal with the situation where an accused person has given “an undertaking to appear at a place, date and time at which proceedings in relation to the offence may be continued”. That formula refers back to the type of undertaking provided for in s 28(2). Where that undertaking has been given there is the capacity in a court to continue the bail already granted “whether or not the accused person is present in court”. If that is done then the undertaking to appear and the bail conditions continue to apply “except to the extent that the undertaking or condition otherwise provides or the court otherwise orders”. The wording of this section draws a distinction between the “undertaking to appear” and “the bail conditions”. This distinction is an artefact of the legislative history of the provision to which I will return below.

39. The other point to note about s 28(2) is that the undertaking to appear and bail conditions continue to apply except in two circumstances. The first is “to the extent that the undertaking or condition otherwise provides”. This incorporates the possibility that an undertaking or condition might be self-limiting, for example if it only applied in relation to dates which, as at the continuation of the grant of bail, had passed. The second is to the extent that “the court otherwise orders”. The scope of this phrase is potentially contentious. It could be interpreted as contemplating a limited power of the

13 Court to continue or not continue an undertaking or condition. On this view of the power, the Court would be limited to terminating the ongoing operation of an undertaking or condition. The alternative interpretation is that it provides a general power to make orders in relation to the undertaking or the bail condition including orders varying the conditions. It is the latter interpretation for which the plaintiff contends with the consequence that the order of the Court made by Refshauge J on 24 March 2011 was effective to modify Mr Monaghan’s bail condition even though the modification was not recorded in the undertaking which he had previously entered and no additional undertaking was entered immediately following the hearing.

40. The next situation dealt with in s 33 is where no direction is made in relation to bail. In those circumstances s 33(3) provides that, whether or not the accused person appears, the Court is taken to have continued bail and the undertaking to appear and any bail conditions continue to apply. This very practical provision means that if bail is not mentioned everything stays the same. Plainly in those circumstances the conditions of bail cannot be varied or be taken to have been varied.

41. Section 33(4) needs to be read together with s 33(6) and (7). Subsection 33(4) refers to “the hearing of a charge” being adjourned or postponed. The reference to a “hearing” and to it being “adjourned” is suggestive of dealing with a final hearing, but the overall context of s 33 and the reference to “postponed” as well as “adjourned” indicates that this is a general power in relation to continuation of bail. It accommodates the situation where no undertaking has been given under s 28(2) and hence the only undertaking was that to appear at a stated time and place under s 28(1) (a). It provides a general power to continue bail or make “another order about bail”.

42. Section 33(6) is a general provision which is to be read with s 33(4). It has the effect of converting the specific undertaking to appear given pursuant to s 28(1)(a) to an undertaking to appear at any time when and where proceedings in relation to the offence may be continued. It also continues any bail conditions.

43. Section 33(7) deals with the situation where a person has not appeared pursuant to their undertaking. It is associated with s 33(4) because in circumstances where s 33(1) and (3) apply those provisions already accommodate an accused person not being present in court and specifically address the consequences of the continuation of bail, the undertaking and bail conditions. Therefore there is no need for s 33(7) to operate where s 33(1) or (3) apply, leaving only s 33(4) as a provision with which it might operate. Where the conditions in s 33(7) are satisfied then, by order, the person may be remanded to a specific time and place and the undertaking previously given converted by order from a specific undertaking to an undertaking to require the appearance of the accused person at “every place, date and time to which the accused person is remanded or at the hearing adjourned, postponed or otherwise deferred”.

44. Section 33(5) is a general provision dealing with circumstances where a surety exists and the surety’s consent does not extend to any continuation of bail. It is not presently relevant.

45. Section 34 requires a court when “granting bail” to give an accused person written notice setting out the person’s obligations under the bail conditions and the consequences of any failure to comply with the conditions. This is routinely done by incorporating the required notice into the document which includes the s 28 undertaking even though that is not mandated by the terms of s 28(1)(b). Section 34(3)

14 deals with the giving of notice following a review under pt 6 of the Act. As I have pointed out these review provisions were not involved in the present case.

46. Section 34(4) imposes a burden on “a court continuing bail” to give to the accused person a written notice stating the three things in paragraph (a)-(c). Significantly for present purposes it requires that the written notice state “the conditions on which bail is presently allowed”: s 34(4)(b). The existence of this provision is inconsistent with an interpretation of the Act which would require a new undertaking to be signed on each occasion where the conditions of bail are varied. Why would written notice need to be given if a new undertaking, which contained the varied conditions, had to be entered into? Rather, the requirement is more consistent with bail conditions being able to be varied without a new undertaking being entered and written notice being given to the person by the means set out in s 34(4). One oddity of the drafting is that this section imposes an obligation on “a court” which is defined as the Magistrates Court or the Supreme Court. Who this actually refers to is obscure, but may have significant consequences. If it imposes a burden on the judicial officer who constitutes the court then that would be consistent with the ordinary meaning of a reference to the Magistrate Court or Supreme Court, but would impose an impractical administrative burden. If it imposes a burden upon the executive government, which provides the administrative staff of the courts, then that is a different obligation. Of more significance in the present case is the fact that “give”, where it appears in s 34, is a term given content by the Legislation Act 2001 (ACT) ss 245, 247, 250. Those provisions permitted physically giving a s 34 written notice to a person as well as sending it to the person by prepaid post at their home or business address: s 247. Thus, if there is no requirement that a person on bail sign a new bail undertaking or other document reflecting any amendments to the conditions upon which the person is granted bail then the mechanism provided in s 34 may not in fact bring the amended terms of bail to their attention for several days, if at all.

47. The interpretation of the Bail Act in its 24 March 2011 form is assisted by taking into account the legislative history of the Act, in particular the legislative history of s 28. As with many pieces of legislation, a relatively clear and coherent structure existed at the time when it was introduced and that clarity and coherence has been gradually eroded by amendments made over time.

48. When the Bail Act was first enacted s 28 made no reference to the conditions of bail. Rather, as the heading to the section continues to suggest, it related only to an undertaking to appear. The section did include a provision (s 28(3)), the equivalent of s 28(2) set out above, which permitted the undertaking to include an undertaking, if bail was continued, to appear at any time and place at which the proceedings in respect of the offence may be continued. Thus conditions of bail, when imposed by the Court, were imposed by order, not included in any undertaking and were the subject of the written notice requirements in s 34. However, in so far as a bail condition related to the conduct of an accused, s 25(1)(a) permitted a condition “that of the accused person undertakes, in writing, to observe specified requirements as to his or her conduct while released on bail”. Thus there were two types of undertaking provided for, one under s 28 and one under s 25(1)(a).

49. In that context it was clearer that the reference to “the court otherwise orders” in s 33(2) was a reference to a general power to vary bail conditions. The general nature of the power in s 33(2) was reinforced by the fact that s 33 was a relatively inflexible provision which only permitted the continuation of bail where the undertaking to appear at a

15 place, date and time at which the proceedings may be continued had been included in the original undertaking. This meant that, other than in cases of illness or accident (dealt with in s 33(6), the equivalent of s 33(7) set out above), all continuation of bail needed to be dealt with by s 33(1) and (2) and hence the power to “otherwise order” applied in the vast majority of cases. However, so far as bail conditions related to the conduct of the accused person, because of the terms of s 25(1)(a) any variation could only be implemented by the entry into a varied agreement to observe the “specified requirements as to his or her conduct”. That is not expressly stated, but it is a necessary consequence of the terms of s 25(1)(a).

50. In January 1998 the ACT Law Reform Commission received terms of reference from the Attorney-General in relation to the operation of the Bail Act. In July 2001 the Commission reported: ACT Law Reform Commission, Report No 19, Report on the Laws Relating to Bail (July 2001). In relation to s 28 the report provided:

60. If bail is granted the accused person must provide a written undertaking in accordance with section 28. That section is in the following terms: (1) A person shall not be released on bail unless he or she undertakes, by instrument, to appear before a specified court— (a) at a place, date and time specified in the instrument; or (b) at a place, date and time notified to him or her by a police officer. (2) An undertaking to appear may be given in respect of more than 1 offence. (3) An undertaking to appear may include an undertaking, if bail is continued, to appear at any time and place at which proceedings in respect of the alleged offence may be continued, whether upon adjournment or otherwise. (4) Subject to section 30, an accused person who is granted bail is under a duty to appear in person before a court in accordance with his or her undertaking under subsection (1). (5) An instrument under subsection (1) is an official document and is admissible in evidence in a proceeding to prove the undertaking it contains. 61. The Act appears to distinguish between an undertaking to appear given by instrument after bail has been granted and an order imposing a condition that the accused person enter into an agreement in writing to observe specified requirements as to his or her conduct whilst on bail. This distinction is both unnecessary and confusing. 62. The Commission is of the view that compliance with any such conditions should form part of the bail undertaking. The conditions upon which bail is granted are often as important as the obligation to appear at court when required and that should be reflected in the same document. Furthermore, their relegation to a separate agreement means that they are unenforceable save, perhaps by application for revocation of bail. The order of the court is not that the accused person comply with such conditions but only that he or she enter into an agreement to do so. Hence, once the agreement has been entered into, the order had been complied with and breach of the conditions does not involve breach of the order punishable by proceedings for contempt of court. The offence created by section 49 applies only to a failure to appear as required by the undertaking. 63. It should be possible for a court to impose conditions without requiring that they be written into the written undertaking. For example, during the course of a jury trial, a judge may grant bail over a luncheon adjournment but impose a condition that the accused person not leave the precincts of the court. It would generally be sufficient that the accused verbally acknowledge that he or she is bound by such a condition. For this reason, the Commission does not propose that the proposed amendment require that any conditions actually be stated in the undertaking

16 but rather that the undertaking extend to compliance with any conditions that may have been imposed or may subsequently be imposed. 64. However, it should be noted that section 34 requires a court or authorised officer granting bail to an accused person to provide the accused person with a notice in writing setting out his or her obligations concerning the conditions of bail and the consequences of any failure to comply with them. This should be sufficient to ensure that he or she understands the conditions that have been imposed and has a suitable record of them. 65. The Commission recommends that section 28 be amended to provide that the bail undertaking include an undertaking to comply with any conditions imposed by the authorised officer or court. [Footnotes omitted. Italicised emphasis added] 51. Thus what was proposed by the Commission was the incorporation into the s 28 undertaking of a general undertaking to comply with conditions that have been or are subsequently imposed. It was not intended that the specific conditions themselves be stated in the s 28 undertaking. Rather, notice would be given of the terms of the conditions via s 34.

52. The Commission’s recommendation was formally accepted by the government: Legislative Assembly the Australian Capital Territory, Government Response to the Report by the Australian Capital Territory Law Reform Commission on Bail (June 2003) pages 7-8. The government’s response provided:

Section 28 of the Bail Act provides that a person must give an undertaking, in writing, to appear before being released on bail. In addition to the undertaking, many defendants are released on bail subject to bail conditions. Under section 25(1), the conditions that may be imposed include a condition that the defendant enter into a written agreement to observe specified requirements as to his or her conduct while released on bail. As the Commission points out, the conduct requirements are often as important as the undertaking to appear. For example, they may restrain a defendant from approaching or contacting an alleged victim. Currently, the agreement as to conduct is contained in a separate agreement to the undertaking to appear, a distinction the Commission sees as both unnecessary and confusing. The Commission recommends combining in a single document the undertaking to appear and any bail condition involving an agreement as to conduct requirements. Under this proposal, the undertaking to appear would be expanded to include an undertaking to comply with any bail conditions. The government supports this recommendation. [Emphasis added]. 53. This last quoted paragraph contains some ambiguity. The first sentence suggests that what was understood by the government was that “any bail condition” might be part of the single document. The next sentence is consistent with what the Commission proposed in that it refers to the expansion of the undertaking to include an undertaking to comply with any bail conditions as opposed to necessarily including the terms of the bail conditions in the document.

54. The amendments to give effect to that agreement were made by the Bail Amendment Act 2004 (ACT). The Act amended s 25(1)(a) so that it referred simply to conditions as to the person’s conduct while released on bail rather than the entry into an agreement. Section 28 was substituted and in its substituted form permitted written undertakings to include any bail conditions imposed by the court or authorised officer. In the light of the legislative history s 28(1)(b), which refers to “to comply with the bail conditions (if any)”, can be seen as referring to a general obligation to comply with any bail conditions that

17 are imposed, rather than to comply with the bail conditions set out in the undertaking document itself.

55. Unfortunately neither the Commission’s report nor the legislative response dealt expressly with what was to occur in circumstances where conditions of bail were varied. While the original form of s 25(1)(a) required conditions of bail relating to conduct to be incorporated into the written agreement contemplated by the section, no amendments were made as a consequence of the modifications to s 28 which addressed how variations to bail conditions relating to a person’s conduct were to be documented. However, part of the amendments made by the Bail Amendment Act 2004 was the inclusion of the note after s 33(2). In relation to that note, the explanatory statement said:

Clause 24: Continuation of bail and undertakings Section 33 of the Act enables a court to continue bail granted to a person if the time and date the person is scheduled to appear at court has changed for some reason. Rather than review the allowance of bail altogether the court may decide to continue bail on the same, or modified basis, until the new hearing date. Clause 24 adds a note to section 33(2) to draw attention to the fact that a decision to continue bail must be conveyed to the defendant. Section 34(4) sets out what should be in a written notice to a defendant if bail is continued. 56. The statements here and the insertion of the note are consistent with an intention that a court deciding to continue bail on a “modified basis” communicate the new terms upon which bail is granted through the notice required by s 34(4). That is consistent with the legislature having implemented the Commission’s recommendations which contemplated that, under the new scheme which did not require a separate agreement to comply with conditions relating to conduct, notice of bail conditions would be given to the accused under s 34.

The application of the Bail Act in the circumstances of the present case 57. The evidence in the present case was clearly deficient in that it did not disclose the charge that the plaintiff was facing or include the undertaking that the plaintiff must have entered under s 28 of the Act in order to have been released on bail in the first instance.

58. So far as Mr Monaghan’s bail is concerned, the first document that is in evidence is the document dated 10 March 2011 set out at [4]. Interpreting the document is made more difficult by the absence of relevant evidence about the charge that Mr Monaghan was facing and the previous history of his bail. However, the heading “ACT Magistrates Court & Tribunals” is consistent with the document relating to a continuation of bail by the Magistrates Court which occurred at the point where he was committed for trial to the Supreme Court.

59. The document does not record an undertaking under s 28 because there is no undertaking consistent with the terms of s 28(1) or (2) on the document. Further, it is headed “Notice of Continuance of Bail” consistent with it being a notice under s 34 of the Bail Act. That is also consistent with the fact that the document in its terms referred to:

(a) a past undertaking to appear;

(b) the adjournment of proceedings;

18 (c) the continuation (rather than grant) of bail; and

(d) the signature by the accused person being “optional”.

60. The document does record: “DATE OF UNDERTAKING TO APPEAR: 10 March 2011”. That is the date of the document itself. Clearly it should have referred to the date in the past when the undertaking to appear had been given and not the date upon which the Notice of Continuance of Bail was created. The statement “DATE OF UNDERTAKING TO APPEAR: 10 March 2011” is a product either of an inadvertent error or of the court officer who prepared the document not understanding the nature of the document being prepared or its relationship to an undertaking to appear under s 28.

61. In summary, the position immediately prior to 24 March 2011 was:

(a) As a result of a criminal charge against him in the Magistrates Court Mr Monaghan had, at some previous but unidentified time, entered into a bail undertaking pursuant to s 28 of the Bail Act.

(b) On 10 March 2011 the Magistrates Court had continued his bail until 24 March 2011 when he was required to appear in the Supreme Court for directions at 9:30 am.

62. It is not clear whether the original undertaking given by Mr Monaghan included the undertaking contemplated by s 28(2) or whether the undertaking was taken to have that effect by reason of the operation of s 33(6) or (7).

63. Consistently with what was indicated on the Notice of Continuance of Bail dated 10 March 2011, Mr Monaghan did appear on 24 March 2011. I infer that he was present in court during the course of the directions hearing and when the Court made the order varying his bail.

64. Having regard to the fact that Refshauge J expressly dealt with the issue of bail, even though he did not expressly continue bail I consider that the continuance of bail is necessarily implied into the order that his Honour made because his Honour varied the terms on which bail was granted.

65. Therefore the case was either one which fell within:

(a) s 33(1) because an undertaking under s 28(2) had been given and an order was made continuing bail; or

(b) s 33(4) where no such undertaking had been “given” by the accused (but the undertaking had been previously taken to have that effect under s 33(6) or (7)).

66. The order for a variation of bail is therefore appropriately characterised as the Court either:

(a) making an order so as to vary the condition of bail for the purposes of s 33(2) (“or the court otherwise orders”); or

(b) making “another order about bail” for the purposes of s 33(4)(b) namely continuing bail but with varied conditions.

67. In either situation, having regard to the interpretation that I have set out above, in those circumstances there was no requirement on Mr Monaghan to enter a new bail undertaking under s 28. Rather, the obligation was on the “court” to give to him a

19 written notice under s 34(4) stating that bail was continued, stating the conditions upon which bail was presently allowed and stating the time and place to which the proceedings had been adjourned. Although the Notice of Continuance of Bail dated 10 March 2011 which is in evidence had been signed by Mr Monaghan, his signature was not required on a written notice given under s 34(4) and on the form the accused’s signature was expressly identified as being optional.

68. The Notice of Variation of Bail dated 28 March 2011 created after the hearing before Penfold J is signed by Mr Monaghan. It is not a s 28 undertaking. There is nothing in s 34 that would require such a notice to be signed or given to the person on bail as a precondition to any variation of the conditions of bail identified in the document becoming effective.

69. Plainly enough the administrative step of having an accused person sign a “Notice of Continuation of Bail” or “Notice of Variation of Bail” was desirable having regard to the importance of there being proof that the amended conditions had come to the notice of an accused person. However, under the operation of the Act as I have explained it above, it was not a prerequisite to the bail being continued on conditions varied by Refshauge J’s order.

70. Therefore the position is that there was in fact no requirement under the Bail Act for Mr Monaghan to sign any new undertaking or any other document in order to give effect to his amended bail conditions. However, Ms Curley’s file note and her actions on 24 March 2011, Mr Lalor’s statements to Penfold J on 28 March and the bench sheet recording the outcome of proceedings on that date reflected an assumption or belief that Mr Monaghan was required to sign a further document to make his varied condition effective.

Lawfulness of the plaintiff’s arrest under the Bail Act 71. Section 56A of the Bail Act permits a police officer to arrest a person without a warrant if the officer believes on reasonable grounds that the person has failed to comply with a bail condition. The police officer is then obliged to bring the person before a court as soon as practicable.

72. The information conveyed by facsimile by a staff member in the Registry to the AFP is described at [10] above. The effect of that communication and hence the information that was reasonably available to the AFP was that on 24 March 2011 bail had been continued on the same terms as recorded on the document dated 10 March 2011, which included condition 6: “Report to Woden Police Station, daily between the hours of 8 am and 8 pm”.

73. In the present case the evidence established that Mr Maxwell checked the information that had been provided by the Supreme Court to the AFP and reached the correct conclusion based upon that information that Mr Monaghan was required under his bail conditions to have reported on Saturday, 26 March 2011. He therefore had reasonable grounds for concluding that Mr Monaghan had failed to comply with a bail condition. As a result he decided to arrest him. As a consequence the arrest and detention of the plaintiff under s 56A was lawfully justified. That was notwithstanding the fact that the information conveyed by the Registry staff at the Supreme Court was incorrect.

20 Claim in negligence 74. The plaintiff’s particulars of negligence are numerous, but incorporate the following allegations of negligence:

(a) informing the plaintiff that it was not necessary for him to sign the varied bail conditions and that he was free to leave the Supreme Court;

(b) failing to take steps to inform the AFP of the varied bail conditions or the inadvertent failure to require the plaintiff to sign the varied bail conditions;

(c) failing to have an appropriate system in place for the administration of the plaintiff’s bail conditions; and

(d) failing to take adequate steps to correct the error of not requiring the plaintiff to sign the varied bail conditions.

75. In the light of my conclusion above that there was no legal requirement upon Mr Monaghan to sign a document in order to bring the variation of his bail conditions into effect, the most relevant allegations of negligence are those of failing to take steps to inform the AFP of Mr Monaghan’s varied bail conditions and failing to have an appropriate system in place for the administration of bail. However, in case I am wrong in my conclusion about whether Mr Monaghan was required to sign a further document to bring his varied bail conditions into effect, I have made some reference below to the consequences that would arise if he was in fact required to sign some further document.

76. The defendant’s contentions, as I understood them, were that:

(a) There was no duty of care:

(i) having regard to the factors identified in Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649 (Caltex Refineries); and

(ii) in circumstances where no recognised psychiatric injury had been established.

(b) There was no breach of duty established on the facts;

(c) Damages were not recoverable by reason of the terms of pt 3.2 of the Civil Law (Wrongs Act) 2002 (ACT) (CLW Act) or otherwise at common law;

(d) Factual causation was not established as there was a break in causation arising from the failure on the part of the Aboriginal Legal Service to communicate effectively with its client; and

(e) It was not open to make a claim in negligence relating to conduct for which wrongful imprisonment or malicious prosecution were the appropriate torts.

Provisions of the CLW Act 77. Given the unusual nature of the present action it is necessary to consider the extent to which the provisions of the CLW Act apply.

21 78. Chapter 2 is headed “Provisions applying to wrongs generally”. The terms of the various parts of ch 2 make it clear what types of civil liability those parts apply to: see ss 5, 8, 11B, 12, 15 and 19.

79. Chapter 3 is entitled “Liability for death or injury”. Part 3.1 relates to wrongful acts or omission causing death and is not relevant in the present case. Part 3.2 is entitled “Mental harm”. Significant reliance is placed upon the terms of this part by the defendant. Section 33 provides that “in an action for personal injury” a plaintiff is not prevented from recovering damages only because the injury arose completely or partly from mental or nervous shock. Section 34 limits the circumstances in which a duty of care arises in relation to mental harm, limiting it to circumstances where a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care was not taken. Section 34 limits damages for “pure mental harm” to harm that consists of a “recognised psychiatric illness”. Section 36 describes an extension of liability in relation to the injury caused to a person to mental or nervous shock received by certain other identified categories of persons.

80. Part 3.3 relates to liability for terrorism associated risks and is not relevant to the present case.

81. Chapter 4 is entitled “Negligence”. Section 41 identifies that the chapter applies to “all claims for damages for harm resulting from negligence, whether the claim is brought in tort, in contract, under statute or otherwise.” Part 4.2 relates to the duty of care, pt 4.3 relates to causation, pt 4.4 permits a reduction of 100% on account of contributory negligence (s 47) and deals with fraudulent claims (s 48).

82. Chapter 5 deals with pre-court procedures. There is no ch 6. Chapter 7 then addresses issues relating to damages, including contributory negligence (pt 7.3). Chapter 7A deals with proportionate liability.

83. Chapter 8 addresses liability of public authorities. Section 110 provides principles about resources and responsibilities of public authorities. Section 111 provides a test to be applied when the proceedings are brought against public or other authorities based on breach of statutory duty. Section 112 provides that a public or other authority is not liable in proceedings based on the failure of the authority to exercise a function of the authority to prohibit or regulate activity if the authority could not have been required to exercise a function in proceedings begun by the claimant. Section 113 provides a provision in relation to road maintenance. Section 114 provides that the fact that a public or other authority exercises or decides to exercise a function does not itself indicate that the authority is under a duty to exercise that function or to exercise it in a particular way.

84. Chapters 9 to 15 contain provisions which are not presently relevant.

Was there a duty of care? 85. The relevant duty of care would be that between Mr Monaghan, a person on bail who had been directed to the Registry to do whatever was necessary to give effect to his current grant of bail and:

(a) the employees of the Territory with whom he dealt (and for whom the Territory is vicariously liable); and

22 (b) the executive government of the Territory which is responsible for court administration.

86. 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.

87. Neither party directed me to any earlier case in which liability in negligence was sought to be imposed upon a government in similar circumstances. In Caltex Refineries Allsop P said in relation to whether a duty of care arose in a novel circumstance or category:

101 The High Court has rejected its previously enunciated general determinant of proximity, the two stage approach in Anns v Merton London Borough Council [1978] AC 728 based on reasonably foreseeability, the expanded three stage approach in Caparo Industries Plc v Dickman [1990] 2 AC 605 and any reformulation of the latter two, such as in Canada in Cooper v Hobart (2001) 206 DLR (4th) 193. See by way of example: Perre v Apand at 193-194 [9]-[10] per Gleeson CJ, at 210-212 [77]- [82], 212-213 [83], 216 [93] per McHugh J, at 300-302 [330]-[333] per Hayne J; Modbury Triangle Shopping Centre Pty Ltd v Anzil 205 CLR 254 at 288-289 [101] per Hayne J; Crimmins at 97 [272] per Hayne J; Brodie v Singleton Shire Council at 630-631 [316] per Hayne J; Sullivan v Moody at 577-580 [43]-[53] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ; Tame at 402 [250] per Hayne J; Vairy at 444 [66] per Gummow J; Imbree v McNeilly at 658 [40]-[41] per Gummow, Hayne and Kiefel JJ. 102 This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the “salient features” or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury. 103 These salient features include: (a) the foreseeability of harm; (b) the nature of the harm alleged; (c) the degree and nature of control able to be exercised by the defendant to avoid harm; (d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself; (e) the degree of reliance by the plaintiff upon the defendant; (f) any assumption of responsibility by the defendant; (g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;

23 (h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff; (i) the nature of the activity undertaken by the defendant; (j) the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant; (k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff; (l) any potential indeterminacy of liability; (m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff; (n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests; (o) the existence of conflicting duties arising from other principles of law or statute; (p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and (q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law. 104 There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content. 105 The task of imputation has been expressed as one not involving policy, but a search for principle: see especially Sullivan v Moody at 579 [49]. The assessment of the facts in order to decide whether the law will impute a duty, and if so its extent, involves an evaluative judgment which includes normative considerations as to the appropriateness of the imputation of legal responsibility and the extent of thereof. Some of the salient features require an attendance to legal considerations within the evaluative judgment. 106 I have described “foreseeability” as a salient feature; it is perhaps better expressed that the use of salient features operates as a control measure on foreseeability employed at the level of abstraction earlier discussed, for example by Glass JA in Shirt as the foundation for the imputation of duty of care. In a novel area, reasonable foreseeability of harm is inadequate alone to found a conclusion of duty. Close analysis of the facts and a consideration of these kinds of factors will assist in a reasoned evaluative decision whether to impute a duty. Whilst simple formulae such as “proximity” or “fairness” do not encapsulate the task, they fall within it as part of the evaluative judgment of the appropriateness of legal imputation of responsibility. 88. In State of New South Wales v Spearpoint [2009] NSWCA 233 Allsop ACJ said:

21 It is clear that in ascertaining whether, in any particular circumstances, a duty of care is to be imputed and in identifying its scope and content, where the circumstances are not covered by an accepted category of liability, the task is to analyse closely the facts bearing on the relationship between the plaintiff and the putative tortfeasor. See for example Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at [22]. 22 This close examination will involve an assessment of salient features such as foreseeability, degree of harm, vulnerability, reliance, assumption of responsibility and numerous other possible factors. These other factors will include legal policy such as coherence and conformity with other duties or legal obligations. 23 Whilst the ultimate question as to the existence of a duty of care is one of law ( Vairy v Wyong Shire Council (2005) 223 CLR 422 at [62]) the task is one which is fact rich and

24 fact intensive. To put it as Windeyer J did in Mount Isa Mines v Pusey (1970) 125 CLR 383 (at 398 and 399) it is “a value judgment upon ascertained facts”. 89. Because of the fact that neither party called evidence as to the administrative processes adopted within the Supreme Court in relation to implementing the Court’s decisions as to bail, it is necessary to undertake the “fact rich and fact intensive” process based on the limited documentary evidence from which inferences can be drawn about the processes adopted.

90. In the present case the harm which is being considered is a loss of liberty arising from the manner in which bail decisions by a judge of the Supreme Court were implemented.

91. In my view, having regard to the factors identified in Caltex Refineries, a duty of care exists between the Territory and its employees and the person the subject of the bail order. In the present circumstances the duty of care and its contents are as set out at [85]-[86] above. I will explain how in reaching that conclusion, I have taken account of the factors identified in Caltex Refineries at [103].

92. Clearly it is foreseeable that harm will arise if care is not taken to accurately implement the decision of the Court (factor (a)). Where bail is granted or varied there is an obvious risk that if the conditions of bail are not accurately reproduced in documentary form then a person may lose his or her liberty as a result of an allegation of breach of bail. That is principally because the terms upon which bail is granted are communicated to the AFP and form the basis upon which the police make decisions about whether to arrest for an alleged breach of bail. However, as this case illustrates, following the pronouncement of orders in court there are a number of administrative steps which need to be taken to give effect to the Court’s decision and without which a person may suffer a loss of liberty. It is plainly foreseeable that a failure to properly implement those steps may lead to a loss of liberty.

93. The nature of the harm (factor (b)) is a loss of liberty which is a significant and important right of an individual subject to bail conditions.

94. So far as factor (c) is concerned, the defendant has complete control over the manner in which a judge’s bail decisions are implemented. The judge’s orders can only be documented and implemented through actions of the executive government. Subject to any order of the Court and relevant legislative provisions, the executive government has complete control over the manner in which that is done including the systems put in place within the Registry and the level of training provided to Registry staff.

95. Factor (d) relates to vulnerability. The plaintiff was clearly vulnerable to harm from any failure by the defendant to properly give effect to the decision of the judge. Mr Monaghan was a particularly vulnerable individual having regard to the evidence of Mr Aldridge set out at [139]-[149] below about his mental health condition. He was somebody who was very much dependent upon others to do what was necessary to give effect to his bail conditions. Considered more generally, persons the subject of bail conditions would generally be people who were unfamiliar with precisely what was required in order to give effect to a court’s order and permit them to be lawfully at liberty on bail conditions consistent with that order. Not only will such persons usually be ignorant of the legal niceties, but they will also vary greatly in terms of intelligence, understanding of administrative processes, health and language skills. While there would be some expectation that such a person would, in order to protect themselves, follow the instructions that they were given by those in authority it could not reasonably

25 be expected that they would go beyond what they were told to do by an apparently authoritative person in order to protect their own interests. The extent of vulnerability would be reduced in circumstances where a person was represented by a lawyer who was present at the point of dealing with Registry staff in relation to the mechanics of bail.

96. In relation to reliance (factor (e)), for the reasons which I have outlined above, not only would persons the subject of bail conditions be generally reliant upon the defendant to take the steps necessary to properly give effect to a judge’s bail decision, but in the present case, having regard to the personal circumstances of the plaintiff, he was completely reliant upon the defendant to do so.

97. This is not a case in which there was any assumption of responsibility by the defendant (factor (f)). Rather it was a situation where the defendant and its employees were required as part of the proper functioning of the Court to perform administrative tasks necessary to give effect to the Court’s decision.

98. Proximity or nearness in a physical temporal relational sense (factor (g)) is not a significant factor in the present case. Similarly the category of relationship (factor (h)) is not significant. The relationship was between a person on bail and government employees responsible for court administration.

99. The nature of the activity undertaken by the defendant (factor (i)) was that of a governmental agency and its staff.

100. The nature or degree of the hazard or danger caused by the conduct (factor (j)) was the obvious risk that the failure to properly perform the administrative tasks necessary to give effect to a court’s order may have adverse consequences, including loss of individual liberty.

101. In relation to factor (k), I can infer that the defendant knew or ought to have known that the failure to properly give effect to orders of the Court could cause harm to the plaintiff or a person in the position of the plaintiff.

102. Potential indeterminacy of liability (factor (l)) is not an issue which tells against the imposition of a duty because the category of persons in relation to whom the duty would exist is a defined and confined one.

103. Factor (m), the nature and consequences of any action that can be taken to avoid the harm to the plaintiff, is only significant insofar as proper administrative processes in relation to implementation of decisions affecting individual liberty made by one of the three arms of government would be something that would be generally expected to occur.

104. Factor (n), the potential imposition on the autonomy or freedom of individuals, is not relevant as the defendant is a government entity and not a person whose freedom or autonomy would be imposed upon by the imposition of a duty of care in a case such as this.

105. Factor (o), the existence of conflicting duties arising from other principles of law or statute, does not tell against the existence of a duty of care. The situation here is distinct from cases involving the police (see for example Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [62]; New South Wales v Tyszyk [2008] NSWCA 107 at

26 [125]) where conflicting duties exist. The duties upon the defendant were simply to properly implement the decision of the Court.

106. Factor (p), the consistency between a duty and the terms, scope and purpose of any relevant statute, does not tell against the imposition of a duty. I will refer separately below to the significance of the provisions of the CLW Act. Otherwise there would be no inconsistency with the terms of scope or purpose of any relevant statute.

107. Factor (q), consistency with the structure and fabric of the common law, does not tell against the imposition of a duty. So far as this case involves the consequences of a failure to give accurate information to another government entity or a misstatement arising from negligent conduct, the imposition of a duty would be consistent with the structure and fabric of the common law.

108. Therefore, subject to matters arising from statutory provisions in the CLW Act, this is a case in which there was a duty of care owed by the employees of the Territory and the Territory itself to the plaintiff.

Section 34 and the duty of care 109. The most significant statutory provision that might affect whether a duty of care existed is s 34 of the CLW Act which provides:

34 Mental harm—duty of care (1) A person (the defendant) does not owe a duty to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. (2) For the application of this section in relation to pure mental harm to a person, the circumstances of the case to which the court must have regard include— (a) whether or not the mental harm was suffered as the result of a sudden shock; and (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in danger; and (c) the nature of the relationship between the plaintiff and anyone killed, injured or put in danger; and (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. (3) For the application of this section in relation to consequential mental harm to a person, the circumstances of the case to which the court must have regard include the nature of the bodily injury out of which the mental harm arose. (4) This section does not affect the duty of care a person (the defendant) has to another person (the plaintiff) if the defendant knows, or ought reasonably to know, that the plaintiff is a person of less than normal fortitude. 110. The definitions relevant to s 34 are provided in s 32:

consequential mental harm, to a person, means mental harm to the person that is a consequence of bodily injury to the person.

...

mental harm, to a person, means impairment of the person’s mental condition.

negligence means failure to exercise reasonable care and skill.

27 ...

pure mental harm, to a person, means mental harm to the person other than consequential mental harm.

111. Section 34 is clearly designed to target more usual negligence cases. It is not a provision which applies to cases based on trespass to the person because they do not involve any question of a duty of care. Its application is somewhat awkward where a cause of action in negligence asserts damage arising out of a lawful deprivation of liberty.

112. Section 34(1) prevents duties of care arising in relation to mental harm unless a reasonable person in the defendant’s position would have foreseen that a recognised psychiatric illness might be suffered. In the present case, I consider that the requirement of s 34(1) is met. A person in the position of an employee of the Department of Justice and Community Safety dealing with accused persons the subject of bail conditions “would have foreseen that a person of normal fortitude … might … suffer a recognised psychiatric illness” if reasonable care was not taken in relation to what was said to that person and the manner in which the person’s bail conditions were documented. It would be obvious to such an employee that they were dealing with a person’s liberty and that a failure to take reasonable care on their part might lead to a person being detained in circumstances where the orders of the Court did not require them to be detained. A reasonable person would consider that a person so arrested “might” suffer a recognised psychiatric illness as a result. While the work being undertaken was largely administrative, it is the nature of the subject matter that distinguishes the circumstances of such staff from ordinary government administration.

113. The position of the Territory as an institution is the same. Even more clearly than an individual employee of the Territory, the Territory would (or ought) be aware that persons of normal fortitude in the plaintiff’s position “might” in the circumstances of the case suffer a recognised psychiatric illness if arrested and detained because of an administrative error in giving effect to a judge’s bail decision.

114. Section 34(2) deals with claims for “pure mental harm”. That phrase gets its meaning from the defined terms so that it means harm that is not a consequence of “bodily injury to the person”. These concepts do not fit easily with a case where the damage is a loss of liberty. Bodily injury is not a defined term. Its ordinary meaning would not extend to a loss of liberty per se: see the authorities referred to at [163] below. A loss of liberty does not involve an injury to the body. Rather it involves an impairment of a person’s autonomy. Therefore the case would be one of “pure mental harm” within the meaning of the subsection. Subsection (2) is clearly designed to target the Mount Isa Mines v Pusey [1970] HCA 60; (1970) 125 CLR 383 category of case where the bodily injury is to another person rather than the anomalous case where the harm alleged is a loss of liberty. In any event, because s 34(2) lists matters to which regard must be had in the application of subsection (1), it does not preclude the existence of a duty of care and the considerations in the subsection are not inconsistent with a duty of care in the present case.

115. Subsection (3) is not relevant in the circumstances of this case because it does not involve a “consequential mental harm”. It is not necessary to consider the application of subsection (4) in the present case having regard to the fact that the test in subsection (1) is met.

28 Section 110 116. Section 110 provides some principles which must be applied in deciding whether “a public or other authority” has, relevantly, a duty of care. It applies in relation to “civil liability in tort” (s 108) and hence includes a claim in negligence. “A public or other authority” includes the Territory: s 109. None of the factors listed in s 110 tell against the existence of a duty of care in the present case.

Defendant’s argument on duty of care based on s 35 117. The defendant submitted that because the evidence established that the plaintiff had not suffered a recognised psychiatric illness there was no duty of care owed by the defendant to the plaintiff and no damages were recoverable.

118. Part 3.2 of the CLW Act does not contain a general statement about the causes of action to which it applies. Section 33 expressly permits recovery of damages “in an action for personal injury” where the injury “arose completely or partly from mental or nervous shock”. “Mental or nervous shock” is not a defined term. An “action for personal injury” is given content by the definition of “personal injury”:

personal injury means bodily injury, and includes-

(a) mental or nervous shock; and

(b) death. 119. Sections 34 and 35 will often apply and could be interpreted as following on from s 33 and hence confined to actions for personal injury. However, s 34 is specifically directed to the content of a duty of care generally and s 35 refers to claims in negligence generally. Therefore their application is to be determined by their terms rather than by reference to some implication drawn from the other provisions of pt 3.2 of the Act.

120. As a consequence s 34 applies in the present case to the question of the content of the duty of care owed by the defendant to the plaintiff. Similarly, s 35 applies to the plaintiff’s cause of action in negligence.

121. I do not accept the defendant’s contention that s 34 denies the existence of a duty of care in circumstances where no recognised psychiatric injury has occurred. As I understood it, the defendant’s submission sought to work back from the requirement in s 35, that in order to recover damages the claimant must establish a recognised psychiatric illness, to s 34 which qualifies the circumstances in which a duty of care might arise. In my view, that is not the correct approach. The two provisions impose distinct tests. It is appropriate to consider them sequentially. It is possible for a duty of care to take care not to cause a plaintiff mental harm to arise, yet for a plaintiff to fail to recover damages because no recognised psychiatric illness was in fact suffered.

Was there a duty of care breached? 122. The content of the duty of care is identified at [86] above.

123. Section 43 of the CLW Act provides that a person is not negligent in failing to take precautions against the risk of harm unless the risk was foreseeable, the risk was not insignificant and in the circumstances a reasonable person in the defendant’s position would have taken those precautions. Subsection (2) provides a series of matters which a court must consider in determining whether a reasonable person would have taken

29 precautions against a risk of harm. They are the probability that harm would happen if the precautions were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm and the social utility of the activity creating the risk of harm.

124. In the present case an employee of the Territory sent documents to the AFP which did not accurately reflect Mr Monaghan’s varied bail conditions. If I am wrong in my conclusion at [70] above, and under the provisions of the Bail Act Mr Monaghan was required to sign a further document to give effect to the change in his bail conditions, then an employee of the Territory gave incorrect advice, namely that he was free to leave and was not required to sign any further document, to a person whose conditional liberty was dependent upon receiving accurate advice.

125. Whichever is the correct analysis, the problem appears to have arisen because a lack of awareness on the part of one or more Registry staff of the variation order made by Refshauge J. The circumstances are consistent with the Registry staff being unaware of the orders made by Refshauge J because:

(a) no paper (or other) record of the judge’s order was made prior to the staff taking action to communicate the results of the proceedings to the AFP (or giving advice to Mr Monaghan);

(b) the paper record of the judge’s order was not physically transported to the Registry staff (or some other record effectively communicated to the Registry) prior to the Registry staff taking action to communicate the results of the proceedings to the AFP (or giving advice to Mr Monaghan); or

(c) the Registry staff failed, prior to communicating with the AFP (or giving advice to Mr Monaghan), to do a proper search of the file so as to discover, in addition to the bench sheet recording directions and the sitting in which the trial would occur, the record within it which indicated that the conditions of bail had been varied.

126. Thus what occurred might have involved personal failures on the part of one or more individual employees or might have involved a systemic failure arising from whatever system was adopted for communicating the terms of the judge’s order to the Registry staff responsible for its implementation and documentation.

127. In my view, there was clearly a foreseeable risk that if a judge’s orders were not properly documented and communicated to the Registry that incorrect information would be given to the AFP or to the person the subject of the bail order which would affect the person’s liberty. The risk was not an insignificant one. As with many organisations which involve the interaction of different people, proper documentation of decisions and proper systems for the implementation of those decisions is necessary to avoid risks of harm arising. That is most obvious in situations such as large construction projects and hospitals, but is equally applicable to court administration.

128. The decision about whether or not a reasonable person in the defendant’s position would have taken precautions against the risk must involve consideration of the factors in s 43(2) of the CLW Act. That is made more difficult by the absence of evidence about precisely what occurred in the present case.

129. I will address the considerations in s 43(2) individually. The probability that harm would happen if precautions were not taken (s 43(2)(a)) can be assessed as moderate. The

30 variation of bail orders are routine. So too is the requirement to pass information about those bail conditions to the AFP. The failure to effectively implement bail orders clearly exposes persons to the risk of arrest as a result of a failure to comply with their bail conditions.

130. So far as the likely seriousness of the harm is concerned (s43(2)(b)), the most likely consequence of a failure to properly implement bail variations is a loss of liberty on the part of the person the subject of the bail order. The loss of personal liberty at the hands of the state is a serious matter.

131. So far as the burden of taking precautions to avoid the risk of harm is concerned (s 43(2)(c)), there is little evidence about what would be involved in avoiding the risk. The process of documenting a judge’s order and communicating it to Registry staff appears to be a relatively straightforward paper-based system. Clearly in the present case there was also a Registrar in court taking notes in addition to the recording of orders by the judge’s associate. Having regard to the simplicity of the system, it is unlikely that the burden of ensuring proper communication of a judge’s orders to Registry staff or the proper checking of the contents of a file in order to determine whether or not conditions of bail had been varied would be a burden of any significance. Thus this consideration and s 44(a) does not weigh significantly against a finding of negligence.

132. In relation to the social utility of the activity creating the risk of harm (s 43(2)(d)), this is not a significant factor. In the present case, so far as it is possible to discern, the risk of harm arose because of an inadequate system for communicating the orders of a judge or alternatively the failure by an employee of the Territory to pay proper attention to the contents of a court file. There is clearly significant social utility in the system of bail provided for by the Bail Act, but that is not a factor which would weigh significantly against the taking of basic administrative measures to ensure important decisions affecting the liberty of a subject are properly implemented.

133. Having regard to these factors, in my view, a reasonable person in the position of an employee of the Territory having received the file, would have taken steps, before preparing bail continuance documents and communicating those to the AFP, to ascertain whether any variation was made to the conditions of bail. It is sufficient for this case to find that those steps would have involved carefully checking the contents of the file and, if nothing relevant was found, confirming with the Registrar or the judge’s associate that bail was continued without variation. Further, having regard to these factors, the Territory, acting reasonably, would have ensured that there was a proper system for reliably communicating the terms of varied bail orders to Registry staff so as to permit those orders to be effectively communicated to the AFP .

134. In reaching these conclusions I have also had regard to the requirements of s 44. Only paragraphs (a) and (b) appear to be relevant as there was no evidence of any subsequent taking of action that would have avoided a risk of harm for the purposes of paragraph (c). I have dealt with s 44(a) above. In the circumstances of this case s 44(b) is not significant since the contest is not between two alternative methods of performing the same activity, but rather between a system which it is accepted failed to properly communicate a judge’s orders to Registry staff and any system which did not.

135. I have also taken into account the provisions of s 110 which apply at the point of determining whether there has been a breach of a duty of care. This is not a case where the application of the principles in the section are of significance. While

31 government resources are limited, this case involves relatively simple questions of either the care taken by an individual staff member or the systems put in place to support a core function of government. In those circumstances the issues raised by s 110 are not ones which affect the outcome.

136. I also consider that it was a breach of duty on the part of the Registry staff, and hence the Territory, to fail to take any steps to notify the AFP, after the terms of Refshauge J’s orders were discovered, that the information earlier conveyed was incorrect. Clearly there was a foreseeable and not insignificant risk of a loss of liberty to a person the subject of bail conditions if the information provided to the AFP was inaccurate. In the circumstances it is clear, in my view, having regard to the factors in s 43(2), that a reasonable person in the position of the Territory and its Registry staff employees would have taken steps to notify the AFP that the information earlier provided was incorrect. Nothing in ss 44 or 110 would alter that conclusion.

137. As I have pointed out above, the actions of the Registry staff and Ms Curley were consistent with a belief that in order to make the variation of the bail conditions effective, Mr Monaghan was required to sign a further document. I have concluded that he was not required to sign such documentation. In the event that I am wrong in my conclusion that Mr Monaghan was not required to sign any further documentation in order to make the variation to his bail conditions effective, I would have found that the staff member who gave the advice to Mr Monaghan that he was not required to sign such documentation was negligent. Clearly Mr Monaghan was a person who was dependent upon the advice that he was given as to what he was required to do in order to give effect to his bail conditions. Any incorrect advice arose from the lack of awareness of Registry staff of the variation orders made by Refshauge J. That was because of one or other of the reasons set out at [125] above. Each of the factors in ss 43, 44 and 110 would apply in essentially the same way as set out above.

Evidence relevant to damages 138. Mr Monaghan was in custody for just over one day from 11:35 am on 27 March 2011 to 12:00 noon on 28 March 2011.

Report of Gregory Aldridge 139. Mr Gregory Aldridge, clinical psychologist, prepared a report dated 27 May 2015 in relation to Mr Monaghan. The assessment was based on a 60 minute clinical interview on that day.

140. The report identified Mr Monaghan’s history as follows. He was a 42-year-old single indigenous man. He lived alone in a housing commission unit. He had not worked for a long time and was on a disability support pension. He was raised in the Condobolin region. His father worked as a fruit picker. His mother did not work outside the home. He is the oldest of five children and has a number of half siblings from his parents’ relationships with other partners. His parents separated when he was 14 years old. He was raised primarily by his mother and a series of other relatives. His early life was marred by violence between his parents, violence of his father towards him and general neglect. He attended primary school and high school. He attended school until year nine when he was expelled. Soon after that he committed one or more serious offences and spent time in juvenile detention as a 15-year-old. He had done no further studies. He worked intermittently in labouring and fruit picking jobs. From the age of 17 he was in a relationship with a woman for two years and they had two children. The

32 relationship was marred by alcohol and drug abuse and violence. He no longer had contact with those children. He has had two other children with two other women.

141. He started using marijuana when he was 11 and first used alcohol when he was 16 years old. At the time of his interview he used both alcohol and marijuana regularly.

142. The report referred to a report of a probation and parole officer indicating that he had spent about half of the previous 12 years in custody. The same report noted:

He has an extensive history of violence both in the community and within prison to fellow inmates or Prison Offices. Many of these offences were of a violent nature.

He was repeatedly non-compliant to Court orders often leading to further incarceration.

He has been found guilty of three (possibly four) Indecent Assault charges. He has been assessed for a Sexual Offender Program in NSW.

He became a Forensic Patient at Long Bay Jail in 2001. This was ceased when he was returned to the ACT to face further charges.

He was unclear about offences over the last few years. He said he had been arrested “on suspicion” several times but not found guilty.

143. The report described Mr Monaghan’s previous psychiatric history. Mr Aldridge recorded that by the age of 32 he was diagnosed as suffering chronic schizophrenia. He was also diagnosed as suffering both alcohol and cannabis dependence. Later he was also diagnosed as suffering an anti-social personality disorder. He has been treated with a range of antipsychotic medications. However, he had a history of non- compliance with medication and ongoing substance abuse. When he was medication compliant and not abusing substances Mr Aldridge noted that it had been reported that he was symptom free. At the time of the consultation he was receiving fortnightly injections of antipsychotic medication. He had been assessed as having an “extremely low range of intellectual ability”.

144. In relation to the incident Mr Aldridge recorded:

Mr Monaghan found it difficult to explain the circumstances of his current legal action. He spoke of “getting an apology from the judge”, “want my compensation” and that it was all “ages ago”.

…

He remained in the watch house overnight. Mr Monaghan claimed to me that he was wrongly held for seven days not the one night.

While there he said he was treated “OK” but he claimed they did not feed him. 145. As to the consequences of the incident, the report recorded:

Mr Monaghan said that at the time he was upset and “did not like it”. He also spoke of some embarrassment as he may have been arrested in front of family members.

When asked if the matter troubled him any longer he shrugged and said no.

I was unable to elicit any statement regarding longer term consequences.

146. Mr Aldridge recorded that Mr Monaghan appeared “to be a very disorganised man”. He recorded that he was a poor historian, saying:

33 He was a poor historian. He gave simple brief answers and appeared uninterested in the interview. Some answers he gave were confused. For example he spoke of having two children to his first girlfriend and one each to 2 other women. Hence four children but he summarised that as “three children three women”. Likewise he claimed to have been wrongly detained seven days not one night. This seems likely a genuine memory error not an attempt at exaggeration.

When asked about his experience of being wrongfully detained he seemed to have only a limited recall of the event. He appeared to minimise any impact it may have had on him then or now.

It was very difficult to get him to expand on topics. For instance he spoke of embarrassment at his wrongful detention but the details remain unclear.

147. Under the heading “Discussion” Mr Aldridge said:

The wrongful detention seems to have distressed him at the time. He may also have been embarrassed as this may have happened in front of family members.

This severity of this distress has waned and he now reports no ongoing distress about the incident. [sic]

Most probably Mr Monaghan suffers a formal diagnosis of Schizophrenia. This condition is unrelated to the incident. 148. In his summary Mr Aldridge states:

Prior to his wrongful detention Mr Monaghan was suffering a major mental illness, schizophrenia. He also had an extensive criminal record and substance history.

His brief incarceration was unpleasant and anxiety provoking. However it did not have any lasting effect on his mental state or life style.

149. The answers given by Mr Aldridge to the specific questions asked by the plaintiff’s solicitors were consistent with what I have set out above.

Evidence of the plaintiff 150. The plaintiff was a very poor witness. He appeared to have little or no actual recollection of what had occurred. His evidence was inconsistent on fundamental matters and the unreliability reflected on the whole of his evidence. This difficulty with recalling events may be the result of his psychiatric condition, because of his drug use or because of his long history of involvement with police or other factors.

151. He did give evidence that he was ashamed and distressed at being arrested, that he was a bit angry and refused to eat the food that was provided to him. He said he asked for and was given some Largactil by the police officers. However, in the light of the elements of unreliability in the evidence that he gave, some of which I describe below, I do not consider that this evidence is reliable.

152. The difficulty the plaintiff had in giving reliable evidence was most clearly illustrated by his evidence about how long he had been in custody:

(a) At the commencement of his evidence he said that he spent one night in prison.

(b) Later in his evidence-in-chief he said that it was only on the fifth day of incarceration that he was told he was going to court, consistent with having spent four nights in custody.

34 (c) Later still in his evidence he said it was “three days or a week, or four days later, or ... a week later” that he was released.

(d) He said during his incarceration he was not permitted to contact the Aboriginal Legal Service and it was “not until five days was up” that he was able to.

(e) He told Mr Aldridge that he had been kept in custody for seven days and in cross-examination said that he had been kept in custody for seven days.

(f) Later in cross-examination he said “It was nine days they locked me up for ...”

(g) In cross-examination he agreed that he only got locked up for one night.

(h) Later, the transcript of proceedings recorded the following exchange:

Just let me get this clear, if I may, Mr Monaghan. The reason why you remember this incident for which you’re giving evidence before this court for compensation is because you spent five days in jail because of that incident?---Yes.

153. These inconsistencies were not an artefact of cross-examination, but instead came unforced from the plaintiff’s mouth. The plaintiff himself seemed to have little perception of the obvious inconsistencies in his evidence.

154. He could not recall having seen Mr Aldridge who he had seen in May 2015.

155. Notwithstanding his statement to Mr Aldridge, he agreed in cross-examination that he was not arrested in front of any relatives.

156. Despite the best efforts of counsel for the defendant, at points in his cross-examination the plaintiff appeared to be giving evidence about events occurring on occasions about which he was not asked.

157. He gave evidence that he did not report to police on Friday 25 March 2011 even though he was obliged to do so and it is uncontroversial that he in fact did report.

158. He was asked questions about other occasions when documentary evidence indicated that he had been arrested. He recalled being arrested and spending a night in custody on 18 May 2011 as a result of a breach of bail conditions. He had no recollection of being arrested on 7 June 2011 as a result of allegations of breach of bail conditions, being kept in custody and coming before the Supreme Court on 8 June 2011.

159. He agreed with the proposition that he had been arrested many times before. He agreed with the proposition that he had been taken into custody and to the Watchhouse on many occasions so that he could not really recall what happened on this particular occasion. He then disagreed with the same proposition saying:

I can recall what happened because I was locked up for five days where I got out on a bail condition, I stayed out of trouble, next minute I got locked up, one day later and they let me out because my charges all had been dismissed and they said that the variation had been all cancelled. My parole got cancelled and they said I was a free man because there was no more charges on me and they said – -they said reside at 43 Cygnet Crescent in Red Hill and what happened – and then – -and then – yes, I got apologised to by the magistrate … And that's all I can remember. 160. He agreed with the proposition that in his life he had been arrested more than 40 or 50 times by police.

35 Other evidence 161. Exhibit 7, tab 18 is the plaintiff’s 12-page criminal history. The earliest entries date from 1987 when the plaintiff was 14 years old. It includes 118 records which include, in addition to records of convictions, entries showing arrests for breach of bail as well as entries relating to charges which had been withdrawn, where no evidence was offered or where the charges were dismissed under statutory provisions relating to a defendant’s mental health. While the criminal history does not disclose the number of occasions upon which Mr Monaghan has been arrested, it is certainly consistent with the oral evidence that he gave that he had been arrested more than 40 to 50 times by police. The history shows that the plaintiff was first given a full-time custodial sentence at the age of 16 when committed to an institution for 12 months. He has subsequently received full-time custodial sentences for assault, assault occasioning actual bodily harm, assault of police, stealing, indecent assault, driving while disqualified, break and enter with intent, assault and committing an act of indecency, minor theft, failing to appear on a bail undertaking, resisting police, sexual intercourse without consent, receiving stolen property. The most recent offence for which he was sentenced to full- time imprisonment was in 2006 when he was sentenced to four months imprisonment for driving whilst disqualified. In the period since 2006 he continued to have frequent contact with the police, being arrested for breach of bail conditions on 6 occasions between 2008 and 2011 (including the occasion the subject of these proceedings).

Statutory provisions relevant to damages

Section 35 162. As I have pointed out above, s 35 of the CLW Act potentially applies in the present case because the claim is one in negligence to which the section refers. The section provides a prohibition on awarding damages for “pure mental harm” unless that harm consists of a “recognised psychiatric illness”. “Pure mental harm” is defined as “mental harm to a person other than consequential mental harm”. “Consequential mental harm” is defined as “mental harm to the person that is a consequence of bodily injury to the person”. “Bodily injury” is not defined. Therefore the section applies to cases where mental harm is not a consequence of bodily injury.

163. In the present case the plaintiff has failed to establish that any negligence on the part of the defendant caused harm that consists of “a recognised psychiatric illness”. He has, however, claimed damages arising from his detention including anxiety, shame, trauma, feelings of powerlessness: see Statement of Claim [23]. These are matters which would, in an ordinary case of wrongful imprisonment, be matters encompassed within the award of general damages. The issue is whether in the present case, where the cause of action is negligence rather than trespass, s 35 precludes an award of damages. If the harm is not a consequence of “bodily injury to the person” then where there is no recognised psychiatric illness damages for mental harm will not be recoverable. As I have pointed out above, I do not consider that loss of liberty per se is within the scope of the phrase “bodily injury to a person”. It involves a limitation on autonomy but no damage to or impairment of the plaintiff’s body. That conclusion is consistent with the decision of Spigelman CJ in relation to the meaning of the term “personal injury” in State of NSW v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168 at [21] (Ibbett):

36 21. The concept of “personal injury” is reasonably well established in Australian legal practice. It has rarely, if ever, been used to refer to harm to reputation, deprivation of liberty, or to injured feelings such as outrage, humiliation, indignity and insult or to mental suffering, such as grief, anxiety and distress, not involving a recognised psychological condition. (See e.g. Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 359-363.) An award for the emotional harm involved in apprehension of personal violence would not generally be regarded as an award for “personal injury damages”.

[Emphasis added]. Compare Ipp JA at [124]. See also Houda v State of New South Wales [2005] NSWSC 1053 at [359]. The phrase “bodily injury”, which is relevant to the operation of s 35, is more clearly apt to exclude mental distress than the broader concept of “personal injury” discussed in Ibbett.

164. As a consequence, the claim is one to which s 35 applies and because the plaintiff has not established that he suffered a recognised psychiatric illness as a result of his detention he cannot recover damages for “impairment of [his] mental condition”. I will return to the consequences of this conclusion below.

Section 45 – factual causation 165. Section 45(1)(a) of the CLW Act requires that the negligence was a necessary condition of the happening of the harm: Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [16] (Wallace). This is clearly established. Had accurate information about the plaintiff’s bail conditions been sent from the Registry to the AFP then Mr Monaghan would not have been arrested on 27 March 2011. (In the event that, contrary to my conclusion above, he was required to sign some additional document then had he not been informed otherwise, having regard to the fact that he had attended the Registry on the apparent understanding that he had to sign something, he would have signed whatever undertaking he was given.) Therefore, notwithstanding that breaches of bail conditions appear to have been a not uncommon event for the plaintiff, he has established on the balance of probabilities that he would not have been arrested and kept in custody on 27 March 2011.

Section 45 – scope of liability 166. Section 45(1)(b) involves a normative question to be determined by the Court as to whether or not it is appropriate to extend the Territory’s liability to damages arising from a deprivation of liberty consequent upon inaccurate advice having been given to a person the subject of a bail order. In deciding the scope of liability the Court is obliged to consider whether or not and, if so, why responsibility for the harm should be imposed upon a negligent party: s 45(3).

167. The required approach is that articulated in Wallace at [22]-[26]. In a case falling within an established class the normative question posed by s 45(1)(b) is properly answered by a court through the application of precedent. However, in a novel case s 45(3) makes it incumbent upon a court considering the normative question posed by s 45(1) (b) to explicitly consider and explain in terms of legal policy whether or not and, if so, why responsibility for the harm should be imposed on the negligent party: Wallace at [23].

168. This case is properly characterised as a novel case. In my view, it is appropriate that liability extend to the consequences of communicating incorrect information in relation

37 to bail conditions. The conduct of the AFP in implementing the bail conditions as were communicated to them was lawful and did not involve any departure from what would be expected in the circumstances. Thus the detention of the plaintiff may be directly linked to the defendant providing inaccurate information to the AFP concerning the conditions of the plaintiff’s bail. Having regard to the subject matter of the inaccurate information, the harm which resulted from the conduct was foreseeable and damage arising from a loss of liberty the most obvious consequence of the provision of inaccurate information. The imposition of liability in those circumstances is effectively coextensive with the content of the duty of the defendant which has been breached: Wallace at [26]. For these reasons it is not a case in which the imposition of liability gives rise to an unacceptably broad attribution of responsibility.

169. I note at this point that I do not accept the defendant’s submission that the failure by Mr Lalor or the Aboriginal Legal Service to contact the plaintiff and have him return and sign the relevant bail undertaking was a novus actus interveniens. That would only be relevant if the negligence was telling the plaintiff that no further documents were required to be signed, which it was not. In any event, it is not conduct which severed the link between the negligence for which the Territory was responsible and the obvious consequence of that negligence.

Quantum of Damages

General principles 170. 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]):

140. In Ruddock v Taylor (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). 141. As far as the heads of damages recoverable in a claim for false imprisonment, McGregor on Damages (16th ed, 1997) at [1850] states:

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):

38 The damages in an action for false imprisonment are generally awarded not for a pecuniary loss but for a loss of dignity, mental suffering, disgrace and humiliation. Any deleterious effect on the plaintiff’s health will also be compensated. 142. 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. 143. In Goldie v Commonwealth (No 2) at [14] [French J said:

14 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. 144. 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 $25,000. 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. 145. As far as damages in that case were concerned, Clarke JA said (at 18B):

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. His Honour concluded (at 18D):

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

Damages for loss of liberty in negligence proceedings 171. The defendant submitted that it was not open to recover damages for loss of liberty in a negligence case. As I understood it, the submission made by the defendant was to the effect that because there were other causes of actions directed to cases involving a loss of liberty, such as false imprisonment or malicious prosecution, a cause of action in negligence could not be used to recover damages and hence avoid the limitations upon the circumstances in which those causes of action were available.

39 172. As a matter of principle I do not consider that the submission is correct. The fact that there exists one cause of action which is dependent upon certain conditions being satisfied says nothing about whether or not the preconditions for the establishment of a second cause of action have been met: cf Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465 at 474. The various causes of action in tort have long historical antecedents. They do not form a coherent scheme such that the existence of one cause of action thereby excludes from a second those circumstances involving the subject matter of the first. At least so far as the trial judge is concerned, whether or not the requirements to establish one cause of action are made out can be determined without regard to the existence of a different and unpleaded cause of action.

173. There is very limited authority as to whether or not the deprivation of personal liberty sounds in damages in a negligence case. Smith v Iffla (1881) 7 VLR 435 (Iffla) involved a claim in negligence against a doctor who, after an inadequate examination, gave a certificate which resulted in the plaintiff being confined in a lunatic asylum for a period of two months. The Full Court of the Supreme Court of Victoria upheld a jury’s award of substantial damages. The decision does not appear to have been cited since. It is, however, discussed in a journal article which contends, based on the decision in Iffla, that loss of freedom should be considered to be damage for the purposes of a cause of action in negligence: Peter G Heffey, “Negligent infliction of imprisonment: actionable “per se” or “cum damno”? (1983) 14 Melbourne University Law Review 53 at 60-62. Having regard to the acceptance for the purposes of a cause of action in trespass that the deprivation of liberty necessarily involves damage and more generally the significance placed upon a person’s physical integrity and freedom of movement, it would, in my view, be appropriate to recognise the deprivation of liberty as being damage for the purposes of a cause of action in negligence. That would be consistent with the approach taken to other adverse consequences of negligent conduct. If damages may be awarded for being voluntarily confined by reason of an accident to a hospital bed there appears to me to be no reason why damages would not be available for being involuntarily confined by police to a prison cell.

174. However, as set out at [162]-[164] above, the capacity to recover such damages is qualified by the terms of s 35 of the CLW Act.

The present case 175. The plaintiff was detained for just over 24 hours. He has not established any special damages in relation to his arrest and detention. He was someone for whom contact with the police and arrest by police was, unfortunately, a common part of his life. He had been arrested on more than 40 to 50 occasions. His evidence about the impact upon him of this occasion was unreliable. He was not arrested in front of family members or anybody else. I can infer that he was likely to have suffered some upset, anger and a sense of injustice at being arrested in circumstances when he did not expect it and when he did not consider that he should have been arrested. He suffered deprivation of his liberty and those things that go with it, such as being searched. As a result of his conduct while detained he was required to be handcuffed. He did not suffer bodily injury. He has not suffered any ongoing effects of the detention.

Other cases 176. The plaintiff submitted that an award of general damages of approximately $25,000 was appropriate. This submission was made by reference to the decisions in

40 Zaravinos v State of New South Wales [2004] NSWCA 320; (2004) 62 NSWLR 58 (Zaravinos) and State of NSW v Delly [2007] NSWCA 303; (2007) 70 NSWLR 125 (Delly).

177. Section 99 of the CLW Act permits regard to be had to previous awards to determine the appropriate level of damages for non-economic loss. It only applies to “claims for damages for personal injury”: s 93. This is a claim for damages in negligence alleging a loss of liberty as a consequence of that negligence. There may be some contention as to whether that is a claim for personal injury in the light of decisions such as Ibbett at [21], [124], [216]. The claim also alleges an aggravation of the plaintiff’s psychiatric condition (Statement of Claim [23](q)). That claim has not been made out. Section 99 must be applied to each particular claim made within the proceedings, rather than the proceedings as a whole, otherwise whether it applied would be dependent upon the arbitrary coincidence of other claims being made in proceedings rather than the substance of the particular claim itself. Thus the existence of a claim for personal injury does not make s 99 applicable to a claim not involving personal injury made in the same proceedings. Therefore s 99 does not apply to the claim for loss of liberty. However, notwithstanding the decision of the High Court in Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, in this Court single judges, of the Full Court and the Court of Appeal, have considered it permissible in determining the quantum of general damages in a negligence case to derive assistance from the range of damages awarded in other decisions of, at least, this Court: Hebditch v Sheppeard; Slaven Motors Pty Ltd (Unreported, Supreme Court of the Australian Capital Territory, Gallop ACJ, Higgins and Ryan JJ, 12 July 1996), 15; Paramore v Clarke [2001] ACTSC 14 at [28]; Kennedy v Mangos [2001] ACTSC 92 at [10]-[13]; Vulin v Cox [2005] ACTCA 22 at [8]-[9]. In cases involving wrongful imprisonment it has also been held to be appropriate to have regard to other awards of general damages: Spautz v Butterworth (1996) 41 NSWLR 1 at 13; Vignoli v Sydney Harbour Casino [1999] NSWSC 1113 at [93]-[95]; Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269 at [48]; Fernando v Commonwealth [2010] FCA 753 at [126]-[129]; Morro at [144].

178. In having regard to the cases which I do below I have borne in mind the need not to be “overborne by what other minds have judged right and proper for other situations” (Planet Fisheries at 125), and instead use them to provide some general background as to the manner in which courts have awarded damages in cases involving loss of liberty rather than personal injury. So far as I have gone beyond decisions of this Court I have borne in mind the potential for awards in other courts to be affected by different approaches in those jurisdictions.

179. Morro v ACT [2009] ACTSC 118; (2009) 4 ACTLR 78 involved three plaintiffs, Mr Morro, Mr N and Mr Ahadizad, whose periodic detention had been unlawfully cancelled and were awarded damages for false imprisonment.

180. Mr Morro had a very unpleasant period of 72 days in prison which significantly affected him. He had a long history of offending. His period of imprisonment included seeking assistance from the officer in charge of the periodic detention centre and an officer of the Sentence Administration Board to no avail. He suffered strip-searches and medical difficulties with his right foot. He suffered from stress insomnia as well as difficulties with a drug which he had been prescribed for his opiate dependence. He was threatened by inmates and justifiably feared attack from others. He lost his Centrelink payments and had housing, telephone and financial troubles as a result of his

41 imprisonment. He was diagnosed with adjustment disorder and as having suffered from stress and depression during his incarceration. Gray J said:

The effect of these reports is to place Mr Morro in the higher category of persons affected by their deprivation of liberty. Although Mr Morro had previous experience in the jail system, the sense of wrong and injustice that he experienced can be said to have a similar impact on him similar to those experiencing the system for the first time. 181. Mr Morro was awarded $95,000 in general damages. This included some allowance for special damage arising from the loss of Centrelink payments for a little more than two months.

182. Mr N was 32 years of age. He suffered a total of 20 days of imprisonment. He was initially detained at the Belconnen Remand Centre then the Metropolitan Remand Reception Centre and the Silverwater Correctional Complex. He was later moved to the Parklea Correctional Complex and then to Kirconnell Correctional Centre. Because of his moves between prisons he was unable to purchase toiletries or cigarettes or have access to the items that his wife had purchased for him. He lost 14 kg in the first 14 days of incarceration due to fear and stress. He was strip-searched on each of the occasions when moved between institutions and before visits from his family. He suffered a number of incidents where he felt humiliated in relation to his wife and daughters. He suffered a particularly traumatic experience when he was being transferred from one prison to another being transported in a pitch black compartment with six other handcuffed prisoners for around four hours. He had no food or drink and at one stage a prisoner urinated on the floor of the vehicle. He was diagnosed as suffering from acute stress disorder. He suffered a justifiable sense of grievance about his wrongful detention. He was awarded $37,000 in general damages for his period of wrongful imprisonment.

183. Prior to his wrongful detention Mr Ahadizad suffered from schizophrenia, attention deficit disorder, substance-abuse disorder and closed head injury with frontal lobe damage resulting from a car accident. Pursuant to the invalid decision of the Sentence Administration Board he was arrested at his home. He was initially accommodated at the Belconnen Remand Centre then sent to the Metropolitan Remand and Reception Centre followed by Goulburn Correctional Centre. He was wrongfully detained for 69 days. The psychological evidence was that although his mental state may have been a protective factor for the sense of injustice and wrongfulness of his ongoing detention, he found the period of incarceration very difficult, in particular, the lack of certainty and the worry and fear about not returning home. His Honour accepted that the period of wrongful imprisonment had a deleterious effect on Mr Ahadizad’s mental well-being. He was awarded $55,000 inclusive of any economic loss sustained by him.

184. In Zaravinos an award of $25,000 for general aggravated and exemplary damages was upheld by the New South Wales Court of Appeal. The plaintiff had gone to a police station for an interview which a police officer had arranged with him by telephone. He was unexpectedly arrested and detained for three hours and 23 minutes. He was then released on bail. The trial judge had determined that the officers did not lawfully exercise their powers of arrest. The trial judge described the conduct as having “all the hallmarks of heavy-handed and officious use of arbitrary power.” In awarding damages the trial judge had referred to “unnecessary, high-handed, humiliating and unnecessarily long” detention which caused the plaintiff humiliation and distress. In upholding this award, Bryson JA (with whom Santow JA and Adams J agreed) said:

42 The principal elements for consideration were the shock and affront to [the plaintiff’s] feelings brought about by violation of his rights to liberty, and punishment of unnecessarily high-handed and humiliating behaviour by the defendants.

185. In Coyle v State of New South Wales [2006] NSWCA 95 a person (Coyle), who had been wrongfully arrested and detained for a two and a half hours, received on appeal compensatory damages of $10,000. He was arrested in public while attempting to board a train when he had an altercation with two police officers. He was handcuffed and transported to a police station in a paddy wagon, fingerprinted, photographed and questioned. Damages for the physical consequences of the arrest were dealt with separately. Tobias JA described the effects of a wrongful arrest on a person as follows:

99 It is difficult to imagine, for a person who is otherwise generally a law abiding citizen, a more humiliating experience or a greater shock to one’s equilibrium than being forcefully deprived of one’s liberty for even a relatively short period of time in circumstances which are entirely unjustified. This is all the more so where that curtailment of liberty is accompanied, as in the present case, by the detained person being handcuffed and marched through a crowd of onlookers and then incarcerated in a police paddy wagon, locked in a cell at the police station and fingerprinted and photographed as a criminal. Not surprisingly, the whole experience must have been both humiliating and highly embarrassing. 186. It is clear from the context in which this passage appears that his Honour was intending the circumstances that he described as being applicable to the appellant’s circumstances. Further, in the paragraph which follows, he describes the deprivation of liberty having occurred in “what must otherwise have been a most terrifying and unforgettable experience”.

187. In Delly the plaintiff had been awarded $25,000 for general damages, $10,000 for aggravated damages and $25,000 for exemplary damages. The appeal was allowed in part so as to set aside the award of the damages and reduce the award of exemplary damages to $10,000. A person had been murdered in the plaintiff’s house. The plaintiff was in effect put under arrest and taken to the Queanbeyan police station, but not informed that she was under arrest. She was taken with her seven-month-old daughter and her three and a half-year-old daughter saw her mother being removed and taken away in the police vehicle, a fact that was distressing to the plaintiff. She arrived at the police station at about 8:30 am. By 11:00 am police had decided that she would not be charged and formed the opinion that she was no longer in custody. However, she was not told that she was no longer in custody and the relevant officer provided no reason for not doing so. The trial judge rejected the plaintiff’s submission that she had ongoing psychological problems arising from the police officers’ actions. The award of aggravated damages was made because of conduct which was “insulting or reprehensible”, in particular keeping her with her child in a small room for some hours. On the appeal in relation to the quantum of general damages, Tobias JA said:

75 The primary judge awarded general damages in the sum of $25,000. The appellant in its written submissions asserted that an award of compensatory damages in that sum in the circumstances of the present case was “arguably excessive”. In this respect it was contended that the respondent had been treated with the utmost courtesy, respect and civility whilst at the police station and this appears to be so. Nevertheless, in my opinion those factors were more relevant to the issue of aggravated damages than to general damages.

43 76 There can be little argument but that an award of general damages in a case such as the present is intended to compensate the respondent for the curtailment of her liberty, the humiliation of being taken to the police station under arrest as observed by her daughter Rose; her concern with respect to her daughter Rose whilst she was detained at the police station; the distress that Rose had, apparently, observed the respondent being arrested and driven away by the police and the necessity to care for her baby Jasmine when detained in the anti-theft room in the presence of other police officers with a consequent lack of privacy. It may also be noted that at the time of her arrest the respondent was only 23 years old. 77 Although compensatory damages in the sum of $25,000 might be regarded in the circumstances as being close to or at the top of the range, in my opinion it did not exceed the range of damages which it was open to her Honour to award in the proper exercise of her discretion. I would therefore reject the appellant’s challenge to the amount awarded under this head. 188. Ipp JA agreed, relevantly, with Tobias JA. Basten JA rejected the appeal in relation to general damages. He would have set aside the award of exemplary damages, but not interfered with the award of aggravated damages, leading to the same result as Tobias JA.

189. In Hage-Ali v State of New South Wales [2009] NSWDC 266 (Hage-Ali) Elkaim J awarded general damages of $7,000 to a plaintiff who had been unlawfully arrested and detained for three and a half hours. His Honour also awarded $7500 for a combination of aggravated and exemplary damages. The plaintiff’s mother was present when she was arrested. There was good evidence of the plaintiff’s distress, humiliation and upset during the period that she was under arrest. She was a user of cocaine. Excluded from this award of damages were damages arising from the publicity given to her arrest by reason of the fact that she was named Young Australian of the Year for New South Wales and subsequently, because of that publicity, relinquished the award.

190. In Fernando v Commonwealth [2010] FCA 753; (2010) 271 ALR 521 the Commonwealth was ordered to pay damages to the plaintiff of $3,000 as a result of being falsely detained for one day by officers of the Commonwealth. The plaintiff had been in detention for more than five years before he was taken into immigration detention and he was arrested at a prison. For reasons which do not need to be gone into the case subsequently had a complex history in which the decision of Siopis J was set aside, the whole of the plaintiff’s 1203 days of detention found to be unlawful and only $1 compensatory damages awarded: see Fernando v Commonwealth [2014] FCAFC 181; (2014) 231 FCR 251 at [1]-[17]. Notwithstanding that, for reasons not associated with the accuracy of the assessment, the decision was set aside, it provides an example of an award in circumstances where there is little shock as a result of a one day period of unlawful detention.

191. In Moses v State of New South Wales (No 3) [2010] NSWDC 243 each of the two plaintiffs was awarded $35,000 for general damages. The plaintiffs had been wrongly identified as offenders during a police covert operation designed to catch a person who was snatching bags from the seats of cars when they were stopped in peak hour traffic. The plaintiffs were arrested with considerable force, taken to the police station and subjected to an interview which demonstrated that the police had no reason to keep one of them and during which the police became increasingly certain that they were not interested in the other.

44 192. In State of New South Wales v Abed [2014] NSWCA 419 (Abed) the plaintiff had been arrested upon an allegation that she had broken into her ex-husband’s house armed with a knife. She was charged with the offences of break and enter with intent to commit murder and a breach of a bail undertaking. She was refused bail and held in custody on remand. The proceedings against her were ultimately withdrawn. Her claim was for false arrest and imprisonment as well as malicious prosecution. The malicious prosecution component of the case gave rise to the overwhelming majority of the damages. She was awarded $10,000 for her false arrest and $10,000 for her false imprisonment during the three hours prior to being informed of the reason for her arrest. She had had some dealings with police including having been arrested earlier that day. The plaintiff appealed against those awards of damages, contending that they were inadequate. Gleeson JA (with whom Bathurst CJ and Macfarlan JA agreed) stated (at [219]) that the assessment of damages for trespass or false imprisonment involves an evaluative judgment by the primary judge. His Honour rejected the appeals against the awards of general damages. He rejected the contention that the wrongful arrest was “deliberate” conduct instead accepting the trial judge’s description as a “technical deficiency”. He also rejected the contention that “significant force” was used to arrest her. She had, however, been taken to the ground by both officers, handcuffed and arrested. Finally, the position taken on appeal was different to that which she adopted a trial where she had contended for an award of $15,000. In relation to the period of detention the trial judge was found to have correctly assessed the length of detention at about three hours which was largely taken up with conveying her to the police station, processing her through the custody desk and arranging the assistance of an interpreter to interview her. No error was found in the approach adopted by the trial judge.

193. In Rook v State of New South Wales (No 3) [2015] NSWDC 154 (Rook) the plaintiff, a man of 40 years of age, was arrested in order that he undergo a breath test. For reasons which are not necessary to record that arrest was not lawfully justified and he was found to have been wrongfully arrested and imprisoned for a period of one hour and 32 minutes. The false imprisonment occurred when the plaintiff was in the driveway of his residence. His only other contact with the police appears to have been in relation to speeding tickets and one conviction for speeding. The trial judge had accepted that the plaintiff suffered some indignity in being arrested because it came to the attention of some of his neighbours and there would have been gossip about what happened which added to his humiliation and indignity. He was not dealt with in any contumelious way. He was detained in an area with a bad odour. He was awarded $9500.

194. In Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269 at [49] (Ruddock) Spigelman CJ said:

49 Damages for false imprisonment cannot be computed on the basis that there is some kind of applicable daily rate. A substantial proportion of the ultimate award must be given for what has been described as “the initial shock of being arrested” (Thompson v Commissioner of Police of the Metropolis [1998] QB 498 at 515). As the term of imprisonment extends the effect upon the person falsely imprisoned does progressively diminish. Notwithstanding that the High Court allowed an appeal from the decision of the New South Wales Court of Appeal in Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612, the judgment of the High Court does not address the point made by Spigelman CJ

45 in this passage which was also referred to with approval in Fernando v Commonwealth [2014] FCAFC 181 at [110].

195. In Ruddock an award of $116,000 for two periods of detention of 161 days and 155 days which had been awarded by the trial judge (Murrell DCJ) was described by Spigelman CJ (at [50]) as low but not so low as to constitute appealable error. Meagher JA also rejected the appeal on the general damages (at [81]). Ipp JA agreed with Spigelman CJ and Meagher JA.

Conclusion on damages ignoring s 35 196. The period of detention of the plaintiff in this case was longer than the periods of detention dealt with in Zaravinos, Delly, Rook, Abed, Moses, Hage-Ali and Coyle.

197. While there would have been some shock associated with being detained unexpectedly in circumstances which the plaintiff considered unjustified:

(a) it was not the sort of intrusion into his affairs that occurred in Hage-Ali (arrest at home) or Moses (arrest while walking down the street) in that he was at the police station and already dealing with the police in a manner with which he must have been familiar;

(b) there was no member of his family or an person other than police officers present; and

(c) he was someone who for the whole of his adult life had been having adverse interactions with the police so that a further adverse interaction was not a shock in the way that it would be for someone who had only rarely dealt with the police (cf Coyle).

198. While the plaintiff would have been searched and was handcuffed at one point, his period of incarceration was not characterised by adverse events such as threats or fear. I consider that his evidence was not reliable enough to make any finding that he misbehaved with his food or that he was denied medication. While it is likely that he was upset at his incarceration, his evidence was so unreliable that it is not possible to make any more specific finding.

199. Because of his long association with the criminal justice system the case is distinct from Coyle in that the plaintiff was not otherwise a law-abiding citizen and because of his experience with the criminal justice process he did not find what occurred to him a “terrifying and unforgettable experience”.

200. Although in the absence of the decisions to which I referred I would have awarded a lower figure, having regard to those decisions I consider that an award of damages which takes into account the mental distress arising from his arrest and detention, namely $7000, is appropriate. In case I have erred in referring to the decisions in other jurisdictions or decisions which are not decisions of appeal courts, I indicate that had it not been for the magnitude of the awards in the cases to which I have referred I would have concluded that a lower figure, namely $3000 was appropriate. Thus, if I am in error in referring to the judgments that I have then it is an error which favours the plaintiff.

201. Aggravated damages are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like: Lamb v Cotogno [1987] HCA 47; 164 CLR 1 at 8. Aggravated damages are given by way of compensation for

46 injury to the plaintiff which, although frequently intangible, results from the circumstances and manner of the defendant's wrongdoing, while exemplary damages are awarded to punish and deter the wrongdoer: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118 at 129-130; New South Wales v Ibbett [2006] HCA 57; 229 CLR 638 at [31], [33]. Aggravated damages are assessed from the point of view of the plaintiff, but an award of exemplary damages is based on the conduct of the defendant: NSW v Ibbett at [34]; Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1 at [15]. The various categories of damages that may be awarded for trespass to the person, including assault and false imprisonment, are not self- contained. There is a close relationship between an award of ordinary compensatory damages for injury to the plaintiff's feelings and an award of aggravated damages: New South Wales v Radford [2010] NSWCA 276; (2010) 79 NSWLR 327 at [97]; State of New South Wales v Zreika [2012] NSWCA 37 at [64].

202. In the present case, because of the unreliability of the plaintiff’s evidence, I am not satisfied that there were any particular aspects of the arrest and detention which gave rise to injury warranting a separate award of aggravated damages. Having regard to the nature of an award of general damages for wrongful imprisonment, incorporating, as it does, compensation for the intangible injuries arising from a loss of liberty, there is clearly a significant overlap between the harm for which an award of general damages and an award of aggravated damages provides compensation. In the present case I do not consider that the evidence warrants an additional award of aggravated damages in order to ensure that the plaintiff is properly compensated.

203. Exemplary damages were not claimed.

204. No claim of contributory negligence was pleaded.

205. Having regard to my conclusion that the impact of the negligence was short lived, if it was appropriate to award damages which included damages for the mental distress associated with the period of detention then it would have been appropriate to award interest on general damages for the whole of the period since that date. That would have given an award of interest of $1,585 ($7000 x 0.04 x 5.66). However, as indicated below, because of the operation of s 35 of the CLW Act the damages that may be awarded are more limited than would otherwise be the case.

Capacity to recover damages for loss of liberty alone 206. Because of the effect of s 35 of the CLW Act the plaintiff is unable to recover damages for the mental harm suffered as a consequence of his unexpected arrest and detention. Those are very significant components of awards of damages for wrongful imprisonment. The authorities make it clear that a significant component of damages in a wrongful imprisonment case is awarded for the initial shock of being arrested and detained in circumstances where that arrest or detention was not lawfully justified: Ruddock at [49]. In this unusual case, the effect of s 35 is that it precludes the awarding of damages in relation to matters which would give rise to substantial damages in a wrongful imprisonment case. The defendant contended that in those circumstances only nominal damages could be awarded for the bare loss of liberty. Counsel for the plaintiff appeared to accept that the operation of s 35 imposed limitations for the recovery of damages arising from a loss of personal liberty, submitting that to the extent that anger and anxiety impaired the plaintiff’s mental state no claim was made and instead the claim for damages was for “the loss of his liberty”.

47 207. In my view, s 35 does significantly curtail the capacity of the Court to award damages. It means that the award of damages must be stripped of any content relating to mental upset and involve damages for a bare loss of liberty. That is a highly artificial exercise because loss of liberty is principally significant because of its mental consequences. However, while I accept that s 35 must strip away much of the entitlement to damages, I do not consider that the bare loss of liberty only involves the award of nominal damages.

208. “Mental harm” in s 35 is an impairment of a person’s mental condition. The exclusion by s 35 of damages for upset or sadness falling short of a recognised psychiatric illness does not necessarily exclude the awarding of damages for a consciousness of the loss of liberty or for the fact, even if not reflected in upset or sadness, that a plaintiff has been denied autonomy for a period of his or her life.

209. In an award of damages for wrongful imprisonment, consciousness of imprisonment at the time of imprisonment is not an essential condition of obtaining more than nominal damages: Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 at 53; WL Prosser “False imprisonment: consciousness of confinement” (1955) 55 Columbia Law Review 847. However, where an unconscious confinement occurs at least some of the damage may arise because of the mental affect of learning of the situation afterwards or by reason of other persons having observed the detained person’s predicament: Walter v Alltools Ltd (1944) 171 LT 371; Hook v Cunard SS Co [1953] 1 All ER 1021 (Hook); J Fleming, The Law of Torts (3rd ed, The Law Book Co Ltd, 1965) at 30. Such damage falls into the category of pure mental harm for the purposes of s 35.

210. Yet in Murray v Ministry of Defence [1988] 2 All ER 521 at 529 Lord Griffiths rejected the proposition that a false imprisonment of which the plaintiff was not aware would only give rise to nominal damages saying:

If a person is unaware that he has been falsely imprisoned and has suffered no harm, he can normally expect to recover no more than nominal damages, and it is tempting to redefine the tort in the terms of the present rule in the American Restatement of Torts. On reflection, however, I would not do so. The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable even without proof of special damage. 211. I consider that notwithstanding the operation of s 35, the law of negligence does recognise some separate damage constituted by the loss of liberty itself in circumstances where the plaintiff was aware of the loss of liberty and cannot get back the autonomy of which he was deprived during the period of imprisonment. It would be anomalous, in my view, if that loss of autonomy was required to be ignored having regard to the significance of individual liberty within the legal system.

212. Section 35 of the CLW Act was inserted with the intention of implementing certain recommendations of the Review of the Law of Negligence Final Report (Ipp report): see Explanatory Statement for the Civil Law (Wrongs) Amendment Bill 2003 at p 5. The terms of that report which led to the recommendations which were implemented by ss 34 and 35 of the CLW Act were clearly not targeted at unusual situations such as the present case in which a detention is the result of a negligent act: Ipp Report [9.19]- [9.28]. I have indicated above that the terms of s 35 must have the effect of stripping away a substantial portion of the damages to which the plaintiff is entitled. That is the case because of the terms of the section, even though neither the Ipp report nor the legislature appears to have specifically contemplated a circumstance such as the present. However, given that the terms of the statute do not clearly require it, I

48 interpret s 35 as leaving open the award of more than nominal damages in a case such as the present. That involves the law of negligence recognising a conscious loss of autonomy without mental distress as being something which sounds in general damages. That outcome is, in my view, consistent with the supreme importance that the law attaches to the liberty of the individual.

213. I consider, therefore, that there must be some separate damage attributed to the loss of liberty itself. Having regard to the amount that I would have otherwise awarded set out above ($7,000) I consider that the appropriate award of damages which takes account of the operation of s 35 is $2,000. That gives an award of interest of $453 ($2000 x 0.04 x 5.66).

Human Rights Act claims 214. The plaintiff claimed that he had a separate and additional entitlement to compensation pursuant to s 18(7) of the HR Act. That subsection provides that “[a]nyone who has been unlawfully arrested or detained has the rights to compensation for the arrest or detention.”

215. The plaintiff’s claim had two elements:

(a) First he claimed that he was unlawfully arrested and detained and that during the course of detention trespasses were committed upon him by reason of being handcuffed and searched. He claimed that: “The unlawful arrest, detention and trespasses were done by or at the direction of the defendant.”

(b) Second, he claimed that the defendant caused the plaintiff to be unlawfully arrested and detained in breach of his rights pursuant to ss 18(1) and 18(2) of the HR Act. This is particularised as being “wrongly arrested and detained in custody by the Australian Federal Police because of a purported failure on the part of the plaintiff to report in accordance with his bail conditions on the previous day, 26 March 2011”.

First element – unlawful arrest at the direction of the defendant 216. As pointed out at [71]-[73] above, the plaintiff was lawfully arrested by Mr Maxwell under s 56A of the Bail Act. Insofar as the plaintiff was handcuffed or searched for the purposes of his detention that conduct was lawful in circumstances where the detention was lawful.

217. The lawfulness of the arrest and detention means that the plaintiff cannot succeed on this element of this claim.

218. However, even if the arrest or detention by the AFP was not lawful, it was not conduct “by or at the direction of the defendant”. The plaintiff contended that the arrest and the detention was “by” the Territory when it was in fact carried out by officers of the AFP. There are two problems with this contention.

219. First, there was no direction to the AFP relating to the plaintiff’s arrest, simply a notice purporting to show the terms upon which he had been granted bail. It is impossible to characterise that as a direction. That is made even more clear by the fact that the event that triggered the ultimate arrest – failure to report on 26 March 2011 – had not yet occurred at the time when the notice was sent from the Registry to the AFP. (In

49 that respect the circumstances are clearly distinguishable from those referred to in Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 at [23].)

220. Second, officers of the AFP are not officers of the Territory nor are they are agents of the Territory. Rather, they are officers who hold office under the Australian Federal Police Act 1979 (Cth) for whom the Commonwealth and even more clearly, the Territory, is not vicariously liable: Enever v The King [1905] HCA 3; (1906) 3 CLR 969 (Enever). The consequences of Enever are ameliorated by s 64B of the Australian Federal Police Act which makes the Commonwealth liable in tort for acts of members of the AFP in the execution or purported execution of their duties in the same way that the Commonwealth would be liable if the tort had been committed in the course of employment.

221. Provision of police services in the Territory is one of the functions of the AFP: Australian Federal Police Act ss 8(1)(a) and 8(1A). The Legislative Assembly has no power to make any law with respect to “the provision by the Australian Federal Police of police services in relation to the Territory”. The scope of that exclusion from the powers of the Legislative Assembly has not been explored. Police services are provided by the AFP under an agreement between the governments of the Territory and the Commonwealth. The agreement in place as at March 2011 was Exhibit 5. The particular arrangements in place for the provision of policing services in the Territory were not such as to displace the long established proposition in Enever: cf Lissner v Commonwealth of Australia [2002] ACTSC 53. While the agreement permitted policing services to be provided by a police force controlled by another polity it does not alter the relationship between the actions of an officer and the executive government of the place within which it is providing those services. If anything the fact that the polity is one which cannot statutorily control the provision of police services makes it less, rather than more, likely that the principle in Enever should be departed from.

222. Therefore the position is that:

(a) the communication to the AFP was not and did not purport to be a direction to arrest the plaintiff; and

(b) the officer of the AFP exercised his independent discretion in deciding whether or not to arrest the plaintiff and was not the agent of the Territory or a person for whom the Territory is vicariously liable in doing so.

Second element – unlawful arrest and detention in breach of ss 18(1) and 18(2) 223. Sections 18(1) and 18(2) of the HR Act provide:

18 Right to liberty and security of person (1) Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained. (2) No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law. 224. The plaintiff claims that the arrest and detention was “arbitrary” (s 18(1)) and that he was deprived of liberty other than “on the grounds and in accordance with the procedures established by law” (s 18(2)).

225. The chain of reasoning for which the plaintiff contends is as follows:

50 (a) If the plaintiff was “unlawfully” arrested or detained then he is entitled to compensation under s 18(7).

(b) His arrest and detention was “arbitrary” under s 18(1) or not in accordance with “procedures required by law” under s 18(2).

(c) Because of the contravention of ss 18(1) and 18(2) the police officers engaged in conduct which was “unlawful” under s 40B;

(d) The arrest and detention was therefore “unlawful” for the purposes of s 18(7).

(e) The arrest and detention was caused by the error of Registry staff for which the Territory is responsible and therefore compensation is recoverable from the Territory even though the arrest and detention was by the officers of the AFP.

226. At least two issues arise from this suggested chain of reasoning:

(a) Is this reasoning permissible having regard to the terms of s 18(7)?

(b) Does s 18(7) give rise to a freestanding entitlement to compensation distinct from any entitlement at common law?

Is this reasoning permissible having regard to the terms of s 18(7)? 227. Whether or not the reasoning is permissible having regard to the terms of s 18(7) will be influenced by the extent of any difference between the scope of s 18(7) and ss 18(1) and 18(2). That in turn is dependent upon the meaning of “arbitrary” and “procedures required by law”.

228. “Arbitrary” is an imprecise term. Manga v Attorney-General [2002] 2 NZLR 65 (Manga) is authority for the proposition that unlawful detention is arbitrary detention. However, it is the circumstances in which lawful detention is arbitrary where difficulties arise. In Manga Hammond J said that lawful detentions may also be arbitrary “if they exhibit elements of inappropriateness, injustice or lack of predictability of proportionality”: at [40]. He referred to the history of the drafting of article 9 of the International Covenant on Civil and Political Rights (1966), which demonstrated that both “illegal” and “unjust” acts were caught: at [42]. That is consistent with the decision of the Court of Appeal of New Zealand in Zaoui v Attorney-General [2005] 1 NZLR 577. Both majority and minority judges in that case accepted that arbitrariness extended beyond unlawfulness. The distinction between the majority judges (McGrath J with whom Regan J agreed) and Hammond J who dissented was as to the application of the principles to the facts.

229. In Neilsen v Attorney-General [2001] 3 NZLR 433 at [34] Richardson P described arbitrariness in the context of arrest or detention as follows:

Whether an arrest or detention is arbitrary turns on the nature and extent of any departure from the substantive and procedural standards involved. An arrest or detention is arbitrary if it is capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures. 230. In Van Alphen v The Netherlands (communication 305/1988) the UN Human Rights Committee described the reference to “arbitrary” in article 9(1) of the International Covenant on Civil and Political Rights (1966) as follows (at [5.8])

The drafting history of article 9, paragraph 1, confirms that “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of

51 inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. Further, remand in custody must be necessary in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime.” 231. This reasoning was adopted in A v Australia (Communication 560/1993, 3 April 1997) at [9.2] where the Committee said:

9.2 On the first question, the Committee recalls that the notion of "arbitrariness" must not be equated with "against the law" but be interpreted more broadly to include such elements as inappropriateness and injustice. Furthermore, remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context. See also Fok Lai Ying v Governor-in-Council [1997] 3 LRC 101 at [37]-[38].

232. Similarly there is potential for a person to be detained other than in accordance with the processes required by law in circumstances where it cannot be said that they have been “unlawfully arrested or detained”. The decision in R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58 illustrates the potential for a difference between the two concepts.

233. Accepting that “arbitrary” is a term which extends beyond unlawfulness to unreasonable conduct, is it possible, by the chain of reasoning outlined above, to convert s 18(7) from requiring compensation for unlawful detention to an obligation which requires compensation for lawful but unreasonable detention. However, in my view, it is not permissible to achieve this transformation by the chain of reasoning contended for by the plaintiff. That is because s 18(7) must be read in the context of the other provisions of s 18, particularly s 18(1) and (2). The text of s 18(7) refers to “unlawful”, not to “arbitrary”, arrest and detention. That is in a context where s 18(1) refers to the distinct concept of arbitrariness. The use of different words is a strong indication that the entitlements under the subsection are of different content. Similarly, in s 18(2) the absence of compliance with “procedures required by law” may or may not render arrest or detention unlawful but it is unlawfulness that is the touchstone in s 18(7). Because of the different language used in the subsections of s 18, it would be inconsistent with the text and structure of s 18 to permit the reference in s 40B to convert the rights in s18(7) from that which is stated in the subsection to something else. That is particularly so when the purpose of the exercise is not to obtain a remedy under pt 5A of the Act, in which s 40B appears, but a freestanding remedy outside the scope of pt 5A.

234. In the light of the above, because the arrest and detention of the plaintiff by the members of the AFP was legally justified and hence not unlawful, s 18(7) would not, even if it provided a free standing cause of action, provide a remedy in this case.

Does s 18(7) give rise to a freestanding entitlement to compensation distinct from any entitlement at common law? 235. Whether or not prior to the 2008 amendments, s 18(7) provided a freestanding entitlement to compensation distinct from the common law remedies available for unlawful arrest or detention has been a matter of controversy in this Court. The decision of Gray J in Morro is consistent with such an entitlement existing. However, in Strano v Australian Capital Territory [2016] ACTSC 4 at [21]-[36] (Strano), Penfold J

52 doubted whether Gray J in Morro held that s 18(7) created a directly enforceable right and expressed considerable doubt about the correctness of the decision if he did.

236. The decisions in Morro and Strano related to the form of the HR Act as it was in place prior to the Human Rights Amendment Act 2008 (ACT) (2008 Amending Act). Both judgments were given after the 2008 Amending Act came into effect. Prior to the 2008 Amending Act the only remedy expressly provided for in the HR Act was a declaration of incompatibility under s 32. The HR Act was confined to imposing obligations upon those presenting legislation to the Legislative Assembly (ss 37-39) and an interpretive provision designed to encourage the interpretation of legislation in a manner consistent with the human rights stated in the Act (s 30).

237. 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. 238. 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 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]. 239. In his presentation speech the Chief Minister said:

The covenant and related instruments, case law and materials which form part of the jurisprudence of civil and political rights, would inform the interpretation of the rights protected by the bill. And I reiterate, lest there is any confusion on the point, the bill does not invalidate other territory law, nor does it create a new cause of action. (Hansard, 18 November 2003, p 4248) [Eemphasis added]. 240. He also said:

53 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. (Hansard, 18 November 2003, p 4249) [Emphasis added]. 241. In the 12-month review report prepared by the Department of Justice and Community Safety dated June 2006 a recommendation was made to introduce a direct right of action based upon the then recently adopted Victorian model.

Recommendation 6: The Government should examine options for amending the HRA to include a direct duty on public authorities to comply with human rights and a direct right of action. Any proposal will need to address the scope of the duty and the sanctions, if any, for breach. These should be subject to a bar on any new right to compensation arising from breach, following the model recently adopted in Victoria. 242. At that time s 39 of the Charter of Human Rights and Responsibilities 2006 (Vic) provided:

Legal proceedings (1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter. (2) This section does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right— (a) to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and (b) to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence. (3) A person is not entitled to be awarded any damages because of a breach of this Charter. (4) Nothing in this section affects any right a person may have to damages apart from the operation of this section. (As a model to be followed, s 39 was not without its own difficulties: see J Gans “The Charter’s irremediable remedies provision” (2009) 33(1) Melbourne University Law Review 105.)

243. However, the terms of s 40C(5)(b) are consistent with the subsequent decision in Morro if it is part of the ratio of that decision that a freestanding right is provided under s 18(7). As the decision in Strano makes clear, whether that proposition is part of the ratio of the decision is controversial: see Strano at [21]-[30].

244. 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.

245. 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

54 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.

246. 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.

247. 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] 248. The Leader of the Opposition (Mr Seselja), who opposed that part of the bill which introduced Part 5A, said during the debate in principle that individuals could start proceedings in the Supreme Court against a public authority and continued (Hansard for March 2008 page 381):

In such cases, the Supreme Court will grant relief but not damages.

The provision does not prevent individuals from pursuing other legal avenues should they wish to seek damages.

249. Later in his speech he referred to the report of the Standing Committee on Legal Affairs and the response by the Attorney-General set out above.

250. Mr Mulcahy, by then an independent member of the Assembly, said (Hansard 4 March page 399):

I had some lengthy discussion with my advisers in relation to the matter of remedies. I have been persuaded to the view that damages are not appropriate. I would contend that it is more appropriate, for example, that a breach of the act could lead to the setting aside of the administrative decision or a public notification of a breach. We must be very cautious about turning the ACT into a choice of venue for litigation. I believe that not making the remedy of damages available for this sort of breach of voids this issue.

251. Later in his speech he said “I do not believe that damages are appropriate.”

252. In his speech in reply in the Attorney-General said (Hansard 4 March 2008 page 393):

As members have pointed out, the legislation does not create any new remedies. It does not give the Supreme Court powers it does not already have. The court can only grant a

55 remedy which is already within its power. For example, it may quash an unlawful decision or order a public authority to take or not to take proposed action. It cannot, however, awards [sic] damages for a breach of human rights. The government does agree with the committee’s comments on this point. There is a lack of consensus on whether damages should be awarded for a breach of human rights. The government believes it would not be appropriate, however, given this divergences of views, for the court to be permitted to award damages for a breach of duty to comply with human rights.

253. The debate in detail did not contain any remarks relevant to the present issue.

254. It is notable that in the speeches there is no reference to:

(a) the note at the end of s 40C(5)(b);

(b) the possibility that there may be any capacity for the Supreme Court to make a monetary order against a public authority outside the scope of the proposed pt 5A;

(c) any change of position in relation to the Act in its unamended form to that which was expressed by the Chief Minister in his remarks when the bill that became the Human Rights Act 2004 was originally introduced (referred to above).

255. Had the only provision been that in s 40C(4) then the natural interpretation of the Act after the 2008 Amending Act would have been that any remedy for a breach of the rights articulated in the Act would have to be one which did not itself involve the award of damages. That would mean that, consistently with the intention of the Chief Minister expressed in relation to the Act in its original form, s 18(7) would not have been able to have been directly enforced. That would have the effect of encouraging claimant’s to exercise the undoubted common law rights in the first instance. However, the existence of s 40C(5)(b) makes the more natural reading of the Act in its amended form one which permits the rights stated in the ss 18(7) and 23 to be directly enforced without regard to whether or not there is an overlapping common law right. That is because of:

(a) the reference in s 40C(5) to “apart from this section” as opposed to “apart from this Act”; and

(b) the terms of the note after paragraph (b).

256. It is really the note 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 which is indicative of the intention of the Legislative Assembly at the time of the original Act and the 2008 Amending Act.

257. The decision in Strano was handed down after judgment was reserved in the present case. The submissions of the parties did not address in detail the obvious tension which exists between the terms of the note to s 40C(5) and the legislative history which I have referred to above. Further, the parties did not address the consequences that might arise if a cause of action existed against individual police officers under s 18(7) for unlawful arrest or detention in circumstances where the cause of action was not one in tort and hence the police officers would be personally liable without the benefit of s 64B of the Australian Federal Police Act. Having regard to the conclusion which I have reached above in relation to the scope of s 18(7) and the conclusion that I reach

56 below in relation to the quantum of any compensation that would be payable if there was a freestanding cause of action, it is not essential that I express a concluded view as to the operation of s 40C and I do not do so.

Would any compensation under s 18(7) be greater than common law damages? 258. On the assumption that the plaintiff established an entitlement to compensation under s 18(7) I do not consider that, in the circumstances of this case, the plaintiff is entitled to any compensation beyond that which he is entitled to in relation to his claim in negligence. The plaintiff contended that the fact that the rights included in the HR Act meant that when considering the damages to be awarded those damages should include both compensation and vindication. In Morro at [48] Gray J noted that a public law vindication may not be required where that is achieved through a common law remedy.

259. In my view, on the assumption that s 18(7) provides a freestanding entitlement to damages, there is no reason why common law damages are not appropriate vindication of the plaintiff’s rights. While s 35 does involve a significant qualification of the plaintiff’s entitlement to damages, there is nothing in s 18(7) which indicates that adequate compensation must be compensation equivalent to that available at common law for a tort unmodified by any statutory provision. If something more was required, in a case decided by a reasoned judgment as opposed to an unspeaking jury, the vindication provided by the published reasons for judgment should not be ignored: cf Hook at 1024. If something more formal was required then that might be more appropriately achieved by a remedy under pt 5A of the HR Act than by an increase in damages. No such order was sought in the present case.

260. In the present case either:

(a) the plaintiff’s rights to compensation will be satisfied by payment of compensation pursuant to his common-law cause of action; or

(b) the plaintiff’s entitlement to compensation pursuant to any freestanding right in s 18(7) will not involve a payment greater than he is to receive as a consequence of his common-law cause of action.

Orders 261. The orders of the Court are:

Judgment be entered for the plaintiff in the sum of $2,453;

The proceedings are listed for any argument in relation to costs on 16 December 2016 at 11:30 am

The parties must by 13 December 2016 file and serve:

i. an outline of submissions in relation to costs not longer than three pages including the terms of the costs order sought; and

ii. any evidence to be relied upon in relation to costs.

57 I certify that the preceding two hundred and sixty-one [261] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop.

Associate:

Date: 30 November 2016

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