FEDERAL COURT OF AUSTRALIA

Fernando v Commonwealth of Australia [2014] FCAFC 181

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The cross-appellant’s application for leave to amend its Notice of Cross-Appeal be refused.

3.    The cross-appeal be allowed.

4.    Paragraph 2 of the orders made on 6 September 2013 in WAD 111 of 2007 be set aside.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

besanko AND ROBERTSON JJ:

introduction

1    This is an appeal and a cross-appeal from orders made by a judge of this Court on 6 September 2013. The applicant in the proceeding was Mr Fernando, and he is the appellant and cross-respondent before this Court. The respondents in the proceeding were the Commonwealth of Australia (“the Commonwealth”), and the Honourable Gary Hardgrave, formerly Acting Minister for Immigration and Multicultural and Indigenous Affairs (“the Acting Minister”), and they are the respondents before this Court. The Commonwealth is the cross-appellant on the cross-appeal.

2    The primary judge found that the respondents had committed the tort of false imprisonment and he ordered that they pay the appellant nominal damages in the amount of $1.00. In addition, he ordered that the Commonwealth pay the applicant the amount of $25,000 by way of exemplary damages. The primary judge also made orders as to costs, but there is no challenge to those orders irrespective of the result of the appeal and cross-appeal.

3    The appellant is a Sri Lankan citizen who came to Australia in 1989. He was granted a permanent residency visa in 1995. In July 1998, he was convicted by the District Court of Western Australia of three counts of sexual penetration without consent. He was sentenced to eight years’ imprisonment. He served his sentence of imprisonment in Acacia Prison in Western Australia and he was due to be released on parole on 5 October 2003.

4    The appellant’s convictions and sentence of imprisonment meant that it was open to the Minister to cancel his permanent residency visa under s 501(2) of the Migration Act 1958 (Cth) (“the Act”). The Minister was required to accord the appellant natural justice before cancelling his visa.

5    In 2001, the Minister cancelled the appellant’s visa under s 501(2) of the Act. He did so after considering submissions made by the appellant. Following the Minister’s decision, the appellant brought an application for judicial review in the Western Australian registry of this Court in which he challenged the decision.

6    On 16 September 2003, this Court made an order in the appellant’s judicial review proceeding setting aside the decision made by the Minister in 2001 to cancel the appellant’s visa. The basis of the order was that the Minister had committed a jurisdictional error because he had relied on information adverse to the appellant in making his decision without giving the appellant the opportunity to comment on that information: Fernando v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 975 at [45], [59]-[61] per Carr J.

7    The Minister or his Department decided to re-engage the process whereby the Minister would consider whether to cancel the appellant’s visa. The steps taken in September and early October 2003 are set out later in these reasons (at [118]-[137]). It is sufficient to note at this stage that the appellant was given a letter dated 17 September 2003 advising him of an intention to consider cancelling his visa and requiring any comments or information by close of business on 1 October 2003. The result of the process which was undertaken was that the Acting Minister cancelled the appellant’s permanent residency visa on 3 October 2003.

8    When the appellant was released on parole from Acacia Prison on 5 October 2003, he was immediately taken into immigration detention and transferred to Perth immigration detention at the Perth airport. He remained there until 27 January 2005, when he was transferred to the Baxter immigration detention centre in South Australia.

9    On 2 October 2003, the appellant brought a legal challenge by way of an application for judicial review in respect of the conduct of the officers of the Department in issuing him with a notice of intention to cancel his visa. That application was subsequently amended to challenge the Acting Minister’s decision to cancel the appellant’s visa.

10    On 20 December 2006, Allsop J (as his Honour then was) delivered judgment in Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807 (“Sales”). In that case, the Minister had cancelled Mr Sales’ visas, being an absorbed person’s visa and a transitional (permanent) visa, under s 501(2) of the Act, and Mr Sales brought an application for judicial review challenging the Minister’s decision. Mr Sales had been provided with a notice stating that his visas may be cancelled and he was given 14 days to provide all relevant information. Mr Sales’ challenge was successful on the ground that he had not been accorded procedural fairness in relation to the Minister’s decision. Allsop J concluded that, in the circumstances of that case, a period of about two weeks within which Mr Sales was required to make his submission to the Minister was insufficient and, therefore, Mr Sales had not been accorded procedural fairness. A writ of certiorari was issued with respect to the purported decision to cancel Mr Sales’ visas.

11    Following the decision in Sales, the Department conducted a review of cases which might, in effect, be similar to Sales. The appellant’s case was identified as one such case and, by letter dated 18 January 2007, he was advised by the Department that he may not have been accorded procedural fairness in connection with the decision to cancel his visa. He was released from detention on 18 January 2007. On 24 January 2007, orders were made by consent in the proceedings then on foot, quashing the cancellation of the appellant’s visa. The appellant had spent 1,203 days in immigration detention. There is no evidence or material before this Court which explains why the appellant spent so long in detention without his case coming on for hearing.

12    The appellant brought a claim for damages, including aggravated damages and exemplary damages, against the respondents relying on various causes of action, including the tort of false imprisonment. The primary judge found that the appellant had been falsely imprisoned by the Commonwealth for one day and he awarded him the amount of $3,000 in damages. He found that the appellant’s detention had been lawful on and from the second day. He dismissed the other causes of action against the Commonwealth. The primary judge also found the Acting Minister guilty of false imprisonment and misfeasance in public office and he made him jointly and severally liable for the damages of $3,000 (Fernando v Commonwealth and Another [2010] FCA 753; (2010) 188 FCR 188). We will refer to this judgment as the primary judge’s first judgment.

13    In a separate and later judgment dealing with the appellant’s claims for aggravated and exemplary damages, the primary judge found that there were grounds for an award of exemplary damages against the Commonwealth and he awarded the appellant the sum of $25,000 (Fernando (by his tutor Ley) v Commonwealth and Another (No 4) [2010] FCA 1475; (2010) 276 ALR 586). He rejected the appellant’s claim for aggravated damages. We will refer to this judgment as the primary judge’s second judgment.

14    The Commonwealth and the Acting Minister appealed from the primary judge’s orders, and the appellant cross-appealed. The Commonwealth and the Acting Minister appealed against the primary judge’s holdings that the appellant had been falsely imprisoned for one day, that the Acting Minister had been guilty of misfeasance in public office, and that the Commonwealth was liable to pay exemplary damages. The Full Court dismissed the appeal against the primary judge’s holding that the appellant had been falsely imprisoned on 5 October 2003, upheld the appeal against the primary judge’s holding that the Acting Minister had been guilty of misfeasance in public office, and remitted the question of whether there should be an award of exemplary damages, and, if so, in what amount, to the primary judge. The appellant cross-appealed against the primary judge’s holding that he had not been falsely imprisoned on and from the second day of his detention. The cross-appeal was successful and the Full Court said that the appellant had been falsely imprisoned for the entire period of his detention, that is, 1,203 days. The issue of damages was remitted to the primary judge (Commonwealth and Another v Fernando [2012] FCAFC 18; (2012) 200 FCR 1). We will refer to this judgment as the previous Full Court decision.

15    After the Full Court had made its orders, but before the primary judge had considered the issue of damages on the remitter, a new argument emerged. The argument was that the appellant should be awarded no more than nominal damages in respect of his false imprisonment because he could and would have been lawfully detained in any event. The argument was said to gain support from two United Kingdom decisions handed down after the primary judge delivered his first judgment (Regina (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245 (“Lumba”), and Kambadzi v Secretary of State for the Home Department [2011] UKSC 23; [2011] 1 WLR 1299 (“Kambadzi”)). This argument was referred to as the nominal damages contention and we will use that expression.

16    On the remitter, the primary judge made the orders summarised above (at [2]). We will refer to his judgment on the remitter (Fernando v Commonwealth of Australia (No 5) [2013] FCA 901) as the primary judge’s third judgment.

17    The main issues on the appellant’s appeal are whether the primary judge erred in not awarding compensatory damages and aggravated damages to the appellant, and what is alleged by the appellant to be the manifest inadequacy of the award for exemplary damages. The main issue on the Commonwealth’s cross-appeal is whether the primary judge erred in awarding exemplary damages against the Commonwealth.

the relevant STATUTORY provisions

18    The relevant statutory provisions in relation to the decision to cancel the appellant’s visa were contained in s 501 of the Act, and were as follows:

501    Refusal or cancellation of visa on character grounds

…

(2)    The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

…

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined in subsection (7)); or

…

Substantial criminal record

(7)    For the purposes of this section, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

…

(Original emphasis.)

19    The relevant statutory provisions in relation to the detention of an unlawful non-citizen were contained in ss 189 and 196 of the Act. Section 189 refers to an “officer”, which was defined in s 5 to mean:

(a)    an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or

(b)    a person who is an officer for the purposes of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or

(c)    a person who is a protective service officer for the purposes of the Australian Protective Service Act 1987, other than such a person specified by the Minister in writing for the purposes of this paragraph; or

(d)    a member of the Australian Federal Police or of the police force of a State or an internal Territory; or

(e)    a member of the police force of an external Territory; or

(f)    a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or

(g)    any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.

There was an immaterial amendment to paragraph (c) of this definition by Act No. 64 of 2004.

20    Section 189 also refers to “an unlawful non-citizen”. An unlawful non-citizen is a non-citizen in the migration zone who is not a lawful non-citizen (s 14). A lawful non-citizen is a non-citizen in the migration zone who holds a visa that is in effect (s 13).

21    Section 189 provided, relevantly:

Detention of unlawful non-citizens

(1)    If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

...

22    Sections 194 and 195 provided for a detainee to be told of the consequences of detention and gave the detainee the right to apply for a visa in certain circumstances. However, neither of those sections applied where a person was detained under s 189(1) of the Act because of a decision the Minister had made personally under s 501 of the Act to cancel a visa that has been granted to a person.

23    Section 196 provided, relevantly:

196    Duration of detention

(1)    An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:

(a)    removed from Australia under section 198 or 199; or

(b)    deported under section 200; or

(c)    granted a visa.

…

(4)    Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.

    …

(5)    To avoid doubt, subsection (4) or (4A) applies:

(a)    whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and

(b)    whether or not a visa decision relating to the person detained is, or may be, unlawful.

…

24    These reasons are divided into two parts. The first part deals with the issues relating to the appeal and the tort of false imprisonment. The second part deals with the issues relating to the cross-appeal and the award of exemplary damages against the Commonwealth.

false imprisonment

Whether Leave to Put the Nominal Damages Contention Should Have Been Granted

Background

25    It is important to note the following matters in relation to the first trial before the primary judge. First, the nominal damages contention was not pleaded in the respondents’ Further Re-Amended Defence. They submitted that it did not need to be, and we will consider this submission later in these reasons. Secondly, the nominal damages contention was not argued at the trial and, presumably, if it had been, the primary judge would have awarded nominal damages of $1.00, rather than damages in the sum of $3,000. Thirdly, at the time of the first trial, the decisions in Lumba and Kambadzi had not been handed down. This does not necessarily mean the nominal damages contention could not have been put at the first trial, and we will return to this matter later in these reasons. Fourthly, at the first trial, the primary judge assessed damages for false imprisonment on the basis that the appellant had been falsely detained for one day. He did not go on, as he did in the judgment under appeal, to assess damages (in case he was wrong) on the basis that the appellant had been unlawfully detained for 1,203 days.

26    By the time the appeal and cross-appeal were argued before the previous Full Court, the decisions in Lumba and Kambadzi had been handed down. They were referred to in the appellant’s List of Authorities. The appellant at that point was the respondent to the appeal by the Commonwealth and the Acting Minister, and the cross-appellant on his cross-appeal. The Commonwealth and the Acting Minister did not advance the nominal damages contention or refer to Lumba and Kambadzi before the previous Full Court. Neither the contention nor the authorities were referred to in their written submissions, and this Court was not taken to any transcript of the submissions which suggests that the matters were advanced orally. As far as the appellant is concerned, he referred to Lumba and Kambadzi in a different context from the nominal damages contention. He referred to those authorities in the context of a submission that it was not sufficient to have a reasonable suspicion for the purpose of s 189(1) of the Act at only one point in time; it was necessary to review the position on an ongoing basis. In his Outline of Submissions in Support of the Cross-Appeal, he contended:

... On this issue the procedures in the United Kingdom, and the relevant case law are instructive. Further inquires may either verify or put in question the reasonableness of the knowledge or suspicion, and could lead to a situation where there is no longer a reason to know or suspect that the detained person is an unlawful non-citizen. Once this position is reached there can be no lawful basis for the continued detention of the person under section 189(1).

(Footnotes omitted).

27    As we read the Full Court’s reasons, the Court did not address that submission, but rather found that no officer at any time had the state of mind identified in s 189(1) of the Act and, therefore, the appellant had not been lawfully detained at any stage.

28    The nominal damages contention was not put to the previous Full Court. The Court made a reference to it, or to an argument akin to it, in its reasons (at 21, [99], set out below at [41]), but not in a way that suggests that it was argued before it.

29    Before leaving the previous Full Court’s decision, it is necessary to say something about the assessment of damages on the basis that the appellant had been falsely imprisoned for 1,203 days. As we have said, the primary judge did not undertake that exercise at the first trial. In his Notice of Cross-Appeal to the previous Full Court, the appellant sought an order that the Commonwealth and the Acting Minister “jointly and several [sic] pay the Respondent general damages for false imprisonment in an amount to be fixed by the Full Court”.

30    This Court was given the written submissions before the previous Full Court. There are a number of submissions about the damages awards actually made by the primary judge.

31    In the appellant’s Outline of Submissions in Support of the Cross-Appeal, the following appeared:

... If the cross-appeal were to succeed on liability as to the extent of the false imprisonment that figure who [sic] have to be substantially revised upward.

32    Similar statements were made by the appellant with respect to the claims for aggravated and exemplary damages. This Court was not taken to any transcript of the oral submissions suggesting that damages, on the basis of unlawful detention for 1,203 days, was the subject of detailed submissions before the previous Full Court. That is understandable where the judge who had heard the evidence had not assessed damages on that basis and it was to be anticipated (as in fact happened) that the issue of damages would be referred back to him.

The Primary Judge’s Reasons

33    The decision in Lumba came to the primary judge’s attention after the proceeding had been remitted to him by the Full Court and he drew the decision to the attention of the parties. That led the Commonwealth to decide that it would advance the nominal damages contention. The primary judge decided that the respondents were not precluded from raising the nominal damages contention by the observations of the Full Court because the contention had not been argued before the Full Court. He decided that, whether or not the respondents strictly needed leave to re-open their case, he would decide whether they should be permitted to advance the nominal damages contention (which was not relied on at trial) by reference to the same principle that applied on an application for leave to re-open, that is, whether “the interests of justice are better served by permitting or not permitting the Commonwealth to rely upon this contention” (at [65]).

34    In exercising his discretion in favour of allowing the respondents to advance the nominal damages contention, notwithstanding that it had not been advanced during the course of the trial, the primary judge considered a number of matters. First, he rejected the appellant’s submission that the nominal damages contention did not enjoy a reasonable prospect of success. Secondly, he found that the respondents’ legal representatives failed to apprehend at the trial that the nominal damages contention was one that could be advanced by them. The primary judge acknowledged that, at the time of trial, there were cases where nominal damages had been awarded for false imprisonment. However, he said that these cases did not deal with a person detained in immigration detention consequent upon the cancellation of a non-citizen’s permanent residency visa. The nominal damages contention was, according to his Honour, “inspired” by Lumba and Kambadzi, which were only decided after he had given his decision following the first trial. Thirdly, he noted that the respondents did not seek to lead any further evidence in support of their nominal damages contention. Fourthly, he noted that the respondents’ nominal damages contention had a statutory basis, that it raised important matters of public policy, and that it had ramifications beyond the particular proceeding. Fifthly, he noted that, prior to the remitted hearing, the respondents gave notice to the appellant that they would pursue the contention and the appellant had an opportunity to consider his position. Sixthly, he said that the respondents would suffer significant prejudice if they were not permitted to put a contention that would succeed. Finally, he said that the appellant’s expectation of being awarded substantial damages would be seriously threatened if the respondents were permitted to put the nominal damages contention and, furthermore, it might mean that the appellant, having won his cross-appeal before the previous Full Court, would end up in a worse position following remittal of the case. The primary judge said that he considered this to be a powerful factor.

35    Directly following his identification of the above matters, the primary judge said (at [84]-[85]):

... However, in my view, this circumstance must be weighed against the Commonwealth's argument that if the Court were to preclude the Commonwealth from advancing an argument which would otherwise succeed, Mr Fernando would be the beneficiary of a windfall. Mr Fernando's prejudice in having conducted litigation on a basis which is undermined by subsequent legal developments, namely, the Supreme Court cases, may be met by an award of costs in favour of Mr Fernando.

In my view, Mr Fernando's position is analogous to the disappointment which a party may face when he or she succeeds at first instance on the basis of the case law which existed at the date of the first instance decision, but is unsuccessful on appeal because the case law is subsequently overturned (Hollis v Minister for Immigration & Multicultural Affairs (2003) 202 ALR 483). (See also In re Harrison's Share under a Settlement [1955] Ch 260.)

36    The appellant submitted that the primary judge erred, as a matter or power or jurisdiction, in allowing the respondents to advance the nominal damages contention or, in the alternative, assuming power or jurisdiction, as a matter of discretion.

Power or Jurisdiction

37    The appellant submitted that, on their proper construction, the first to fifth orders inclusive made by the Full Court on 8 March 2012 rendered res judicata “the entitlement of the appellant to an award of substantial damages, and placed it beyond [the primary judge’s] power to award the appellant only nominal damages” (ground 1 of the appellant’s Amended Notice of Appeal).

38    The appellant did put to the primary judge that he was precluded from considering the Commonwealth’s nominal damages contention, but it would seem that he did not put the submission clearly in terms of a plea of res judicata.

39    The orders made by the previous Full Court were, relevantly, as follows:

1.    The appeal be allowed in part.

2.    The cross-appeal be allowed in part.

3.    Order 1 made by the trial judge on 21 July 2010 be set aside.

4.    Order 1 made by the trial judge on 24 December 2010 be set aside.

5.    The proceeding be remitted to the trial judge to assess damages on the basis that the respondent (cross-appellant) was falsely imprisoned by the first appellant between 5 October 2003 and 18 January 2007.

...

40    The order made by the trial judge on 21 July 2010, which is referred to in paragraph 3 of the previous Full Court’s orders, was that the Commonwealth and the Acting Minister pay the appellant damages in the sum of $3,000, and the order, made by the trial judge on 24 December 2010, which is referred to in paragraph 4 of the previous Full Court’s orders, was that the Commonwealth pay the appellant the sum of $25,000 by way of exemplary damages.

41    In the course of its reasons, the Full Court said (at 21, [99]-[102]):

In one sense, with hindsight, it can be argued that Mr Fernando could have been lawfully detained on 5 October 2003 because he was then actually, or at least, able reasonably to be suspected to be, an unlawful non-citizen and so no real harm was done. But, that would make the safeguards that the Parliament enacted to protect individual liberty worthless. If Mr Fernando could be detained for over three years when no-one turned his or her mind to complying with s 189(1), so could anyone else, including Australian citizens. It is not unusual for persons detained by those in authority to be ignored when they protest that the officials had no right to detain them. That is because it is natural to presume that once a person has been detained inside a jail or detention facility, their detention has been authorised by law. That presumption is a natural consequence of our society's fundamental value of, and belief in, the rule of law and its abhorrence of arbitrary detention or imprisonment.

Here, there was no evidence that, at any time during his immigration custody, any officer, as defined, ever took Mr Fernando into detention or kept or caused him to be detained there with any state of mind required in s 189(1). The Commonwealth called no witnesses who were involved in the detention of Mr Fernando other than Ms Lockhart.

For these reasons we consider that the Commonwealth failed to prove that its conduct in detaining Mr Fernando on 5 October 2003 or later was lawful. It follows that Mr Fernando's cross-appeal, to this extent, should be allowed.

The proceeding must be remitted to the primary judge to assess the substantial damages, including, if warranted, aggravated and exemplary damages, to which Mr Fernando is entitled because of his unlawful imprisonment for 1203 days.

(Emphasis added).

42    The general principles relating to res judicata are well known. In Blair and Others v Curran and Others (1939) 62 CLR 464 at 532, Dixon J (as his Honour then was) said:

... The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.

43    An issue estoppel covers only those facts legally indispensable to the conclusion and not subsidiary or collateral matters of law or fact or evidentiary facts (at 532-533 per Dixon J).

44    In Jackson v Goldsmith (1950) 81 CLR 446 at 466, Fullagar J said:

The rule as to res judicata can be stated sufficiently for present purposes by saying that, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims “interest reipublicae ut sit finis litium” and “nemo debet bis vexari pro eadem causa.”

45    Fullagar J made the further point that, in the case of a plea of res judicata, only the actual record is relevant, whereas, in the case of issue estoppel, any material may be looked at which will show what issues were raised and decided. In the latter case, reasons given for the judgment pronounced are likely to be particularly important.

46    It is perhaps trite to say that a res judicata may arise from orders made by an appeal court in the same way as it may arise from orders of a trial court: Wishart v Fraser and Others (1941) 64 CLR 470 at 482 per Dixon J; The Queen v Marks and Others; Ex Parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471 at 476 per Mason J (as his Honour then was).

47    As we understood the argument put by the appellant, it was that the previous Full Court had finally determined that he was entitled to substantial damages in respect of his false imprisonment for 1,203 days. The difficulty with this submission is that none of the orders of the Full Court made on 8 March 2012 state this entitlement, and there is no final judgment to that effect. There was a suggestion in argument that the previous Full Court’s fifth order should be read as a direction from the Full Court to the trial judge to assess substantial damages. That, it was said, was the effect of the reasons. That argument must be rejected for two reasons. First, in considering res judicata, the Court does not ordinarily consider the reasons for judgment except, perhaps, to determine if the relevant cause of action was determined on the merits (Heydon JD, Cross on Evidence (9th ed, LexisNexis, 2013) p 223, [5025]). Secondly, and in any event, we do not think the order can be construed that way because we do not think a court would ever make an order in such indefinite terms.

48    The appellant’s submission is perhaps more appropriately advanced as one of issue estoppel rather than res judicata but, even on that basis, the submission must be rejected. First, we do not think that a conclusion that a person is entitled to substantial damages is capable of being the subject of an issue estoppel. A finding that a person is entitled to damages, or damages of a particular amount, may be, but a conclusion that a person is entitled to substantial damages is too indefinite to be the subject of an issue estoppel. Secondly, the finding was not essential to any of the orders made by the previous Full Court because the conclusion that the appellant had been falsely imprisoned by the Commonwealth between 5 October 2003 and 18 January 2007 was sufficient by itself to justify the fifth order made by the Full Court.

49    The appellant put an alternative submission that the terms of the remitter by the previous Full Court to the primary judge precluded him from entertaining the nominal damages contention. Again, he relies on the terms of the fifth order made by the previous Full Court and the Court’s reference to substantial damages.

50    Section 28(1) of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”) provides for the powers of the Full Court as follows:

28    Form of judgment on appeal

(1)    Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:

(a)    affirm, reverse or vary the judgment appealed from;

(b)    give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;

(c)    set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;

(d)    set aside a verdict or finding of a jury, and enter judgment notwithstanding any such verdict or finding;

(f)    grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial; or

(g)    award execution from the Court or, in the case of an appeal from another court, award execution from the Court or remit the cause to that other court, or to a court from which a previous appeal was brought, for the execution of the judgment of the Court.

...

51    The orders of the previous Full Court seem to have been an exercise of the power contained in s 28(1)(c) of the FCA Act.

52    In Community and Public Sector Union v Telstra Corporation Ltd (No 2) [2001] FCA 479; (2001) 112 FCR 324, Finkelstein J considered whether an order made under s 28(1)(c) of the FCA Act resulted in a new trial. His Honour held that it did not. He said (at 329, [17]):

The better view appears to me to be that an order under s 28(1)(c) does not result in a new trial. Accordingly, the “further hearing” will be conducted on the basis that it is a continuation of the first trial, where the parties can only mend their hand or change course in accordance with well known rules.

53    With respect, it seems to us that that approach is correct. It means, in this case, that the orders of the previous Full Court under s 28(1)(c) of the FCA Act did not result in a new trial. However, the respondents in this case were not seeking a new trial. They were not seeking to call any further evidence and they were prepared to argue the remitted matter, that is, the matter identified in the fifth order, on the basis of the evidence as it stood at trial. The previous Full Court gave no direction associated with the remitter other than the direction that damages were to be assessed on the basis that the appellant was falsely imprisoned by the Commonwealth between 5 October 2003 and 18 January 2007, and the nominal damages contention did not contradict that basis. In our opinion, nothing in s 28(1)(c) of the FCA Act, or the terms of the previous Full Court’s orders, precluded the primary judge from entertaining the nominal damages contention. Furthermore, we do not think the previous Full Court’s reference to substantial damages was an implied limitation on the remitter. It is not referred to in the orders and, in any event, is too indefinite to constitute a limitation on the remitter.

54    The primary judge had a discretion as to whether he allowed the respondents to put the nominal damages contention.

Discretion

55    In deciding whether the interests of justice were better served by permitting or not permitting the respondents to rely on the nominal damages contention, the primary judge was exercising a discretion. An appellate court will interfere with the exercise of such a discretion only on well recognised grounds (House v The King (1936) 55 CLR 499).

56    In his Amended Notice of Appeal, the appellant challenged the primary judge’s exercise of the discretion on the ground that he had failed to have regard, or any sufficient regard, to two matters, being:

(1)    the failure by the respondents to plead in their defence by way of confession and avoidance that, even if unlawfully detained, the appellant was entitled to nominal damages only; and

(2)    the failure by the respondents to argue, either at trial or on appeal, that, even if unlawfully detained, the appellant was entitled to an award of nominal damages only.

57    As to the pleading objection, assuming as we do that the primary judge has summarised the appellant’s submissions correctly, this was not an objection raised below, and the parties seemed to have conducted their submissions by reference to the interests of justice test applicable on an application to re-open a case. In any event, the point does not seem to us to go anywhere. The primary judge was acutely aware that the nominal damages contention had not been raised until he drew the parties’ attention to the decision in Lumba. That was the critical point. Furthermore, if it was in the interests of justice to allow the respondents to rely on the nominal damages contention, it was in the interests of justice to allow the respondents to amend their defence had that been necessary (a matter about which we would prefer to express no opinion in view of the limited submissions made).

58    As to the failure of the respondents to argue the nominal damages contention, again, the primary judge was acutely aware of this failure. It seems to us that it was open to the primary judge to find that the respondents were under a mistaken apprehension of the law in the sense that they were not aware that the nominal damages contention was available to them. By saying this we do not think that he was saying that the contention could not have been put at trial or that the decisions in Lumba and Kambadzi could not have been discovered before the Full Court appeal and cross-appeal. All he was saying was that they were under a misapprehension as to a legal aspect of their case and that was relevant to the exercise of his discretion.

59    Insofar as weight on the review of a discretion is relevant, we do not think that the primary judge placed insufficient weight on the two matters identified by the appellant.

60    The appellant raised an additional matter in his written Outline of Submissions. He submitted that the primary judge erred in concluding that the nominal damages contention raised matters of public policy important for immigration law and policy in Australia. He contended that this case turned entirely on its own facts. We reject that submission. We think the nominal damages contention raises a matter of considerable public importance.

The Merits of the Nominal Damages Contention

The Primary Judge’s Reasons

61    The primary judge referred to the relevant statutory provisions and said that they had the effect that a non-citizen whose permanent residency visa has been cancelled under s 501 of the Act, and who challenged the validity of that decision in court, was to be kept in detention for the duration of the relevant court proceeding. He also said that, after the Acting Minister had made his decision to cancel the appellant’s visa, the appellant was susceptible to being detained and, in fact, could and would have been detained by an officer in the performance of that officer’s duty under s 189(1) of the Act. That followed from the fact that the decision to cancel the appellant’s visa was valid on its face and was sufficient to engender in an officer a reasonable suspicion that the appellant was an unlawful non-citizen.

62    The primary judge referred to his conclusion in his second judgment (at 592, [36]) that the provisions of s 189 of the Act meant that, on cancellation of a person’s visa, it is highly likely they will be detained even if it transpires that the cancellation is unlawful. He also referred to the fact that, in Ruddock and Others v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269 (“Ruddock (NSWCA)”) at 283-284, [72], Meagher JA referred to the detention of an unlawful non-citizen as inevitable.

63    The primary judge did not think that the question of which party bore the onus of establishing what would otherwise have happened was significant because the provisions of the Act rendered the appellant’s detention following the cancellation of his visa inevitable or virtually inevitable.

64    The primary judge expressed his conclusion in the following terms (at [97]):

It follows that I find that after the cancellation of his permanent residency visa by the Acting Minister on 3 October 2003, Mr Fernando could and would have been lawfully detained by an officer in the performance of his or her duty under s 189(1) of the Migration Act; and that, in accordance with s 196(4) and s 196(5) of the Migration Act, Mr Fernando would have been lawfully detained during the period whilst the visa cancellation decision was under challenge in this Court.

65    His Honour said that it followed by reference to the application of ordinary compensatory principles in tort that the appellant did not suffer any loss by reason of his unlawful detention for 1,203 days which warranted an award of substantial damages.

The English Authorities

66    The decision in Lumba was delivered on 23 March 2011, and the decision in Kambadzi was delivered on 25 May 2011.

67    In Lumba, foreign nationals had been detained (pending deportation) by the Home Secretary who had applied an unpublished policy of blanket detention. The unpublished policy was inconsistent with the published policy. The foreign nationals brought proceedings for judicial review challenging the lawfulness of their detention and they claimed damages for false imprisonment. There were a number of issues before the Supreme Court of the United Kingdom, and they are identified by Lord Dyson JSC who wrote the leading judgment (at 262, [10]). The members of the Court split in different ways on the various issues before the Court. A majority of the Court found that the unpublished policy was unlawful, and that the application of the policy rendered the detention of the claimants unlawful.

68    We should say that there is no similar issue here because there is no contest but that the appellant’s detention for 1,203 days was unlawful. That was the basis upon which the previous Full Court remitted the matter to the primary judge.

69    A majority of the Court in Lumba held that it was inevitable that the claimants would have been detained even if the published policy had been applied to them. The question then arose as to what effect that conclusion had on any award of compensatory damages and what is referred to in the United Kingdom as vindicatory damages.

70    This Court was not asked to consider an award of vindicatory damages, and the focus of the argument before this Court was on compensatory damages.

71    Lord Dyson JSC considered a submission that, because false imprisonment is a tort of strict liability which is actionable without proof of special damage, substantial damages may be awarded even in a case where it was inevitable that the claimants would be detained if the statutory power to detain had been exercised lawfully. He considered authorities advanced in support of that submission and said that one was wrongly decided (Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662 (“Roberts”)), and another irrelevant to the issue he was considering. As to the decision in Roberts, his Lordship said the following (at 281, [93]):

I do not consider that this case was correctly decided on the issue of damages. I agree that the plaintiff was entitled to be put into the position in which he would have been if the tort of false imprisonment had not been committed. But I do not agree that, if the tort had not been committed, the plaintiff would not have been detained between 5.25 am and 7.45 am. On the judge’s findings, if the tort had not been committed, he would have been detained during this period. It seems to me that the fallacy in the analysis in Roberts is that it draws no distinction between a detainee who would have remained in detention if the review had been carried out (and therefore no tort committed) and a detainee who would not have remained in detention if the review had been carried out. But the position of the two detainees is fundamentally different. The first has suffered no loss because he would have remained in detention whether the tort was committed or not. The second has suffered real loss because, if the tort had not been committed, he would not have remained in detention.

(Original emphasis).

72    His Lordship stated his conclusion on the issue of nominal damages in the following terms (at 281-282, [95]):

The question here is simply whether, on the hypothesis under consideration, the victims of the false imprisonment have suffered any loss which should be compensated in more than nominal damages. Exemplary damages apart, the purpose of damages is to compensate the victims of civil wrongs for the loss and damage that the wrongs have caused. If the power to detain had been exercised by the application of lawful policies, and on the assumption that the Hardial Singh principles had been properly applied (an issue which I discuss at paras 129-148 below), it is inevitable that the appellants would have been detained. In short, they suffered no loss or damage as a result of the unlawful exercise of the power to detain. They should receive no more than nominal damages.

This Court is not concerned with any principles akin to the Hardial Singh principles.

73    His Lordship then went on to consider the question of whether there should be an award of vindicatory damages and he held that there should not be such an award (at 283-284, [101]).

74    On the issue of whether there should be an award of compensatory damages, Lord Hope of Craighead DPSC (at 303, [176]), Lord Walker of Gestingthorpe JSC (at 308, [195]), Baroness Hale of Richmond JSC (at 313, [212], and 315, [217]), Lord Collins of Mapesbury JSC (at 315, [219]), Lord Kerr of Tonaghmore JSC (at 325, [256]), Lord Phillips of Worth Matravers PSC (at 351, [335]) and, on a different basis, Lord Brown of Eaton-under-Heywood JSC (at 352, [342]), all agreed with Lord Dyson JSC. It is true that there was a division of opinion on whether vindicatory damages might be awarded (see, for example, Lord Walker of Gestingthorpe JSC (at 308, [195]), Baroness Hale of Richmond JSC (at 315, [217])), and that particular issue is still a live one in the United Kingdom (see, for example, Welch v The Attorney General of Antigua and Barbuda [2013] UKPC 21 at [20]). However, as we have said, this Court is not concerned with whether there can or should be an award of vindicatory damages.

75    Before leaving Lumba, we set out one further passage, this time from the reasons for judgment of Lord Kerr of Tonaghmore JSC (at 324, [253]):

On the question whether the award of nominal damages or some other measure of compensation is required in false imprisonment claims, I believe that a distinction is clearly merited between those cases where it is plain that the detainees would have been released and those where it can be shown that they would have been lawfully detained, had the correct procedures been followed. Because false imprisonment is a trespassory tort, it is said that the “vindicatory” dimension to the assessment of compensation is important. I shall examine that claim presently but, whatever may be said about its correctness, it is surely right that the actual impact on the individual who has been falsely imprisoned (or perhaps more importantly, the impact that could have been avoided) should feature prominently in the assessment of the appropriate amount of compensation.

76    As far as we can see, the principle enunciated in Lumba concerning the recoverability or otherwise of compensatory damages for unlawful detention has not since been doubted in the United Kingdom. It has been applied in areas outside immigration detention (Welch v The Attorney General of Antigua and Barbuda [2013] UKPC 21 at [16]). Of course, there will sometimes be a serious issue as to whether a person would have been detained absent the tort, but that is no more than an element of what must be established (Kambadzi per Lord Hope of Craighead DPSC (at 1322, [55]), Baroness Hale of Richmond JSC (at 1327, [74]), Lord Kerr of Tonaghmore JSC (at 1331, [89]); The Queen (on the application of OM acting by her Litigation Friend, the Official Solicitor) v Secretary of State for the Home Department [2011] EWCA Civ 909, per Lord Justice Richards (with whom Lord Justices Hughes and Ward agreed) at [22]-[24]).

Australian Authority

77    Ruddock and Others v Taylor (2005) 222 CLR 612 (“Ruddock (High Court)”) does not provide the solution to this aspect of the case, but it does provide a key element in the resolution of it.

78    In Ruddock (High Court), the High Court was required to consider whether a non-citizen could be lawfully detained under ss 189 and 196 of the Act in circumstances where the non-citizen’s visa had been cancelled under s 501(2) of the Act, and the non-citizen had been detained before the decision to cancel the visa was subsequently quashed on the ground that it was ultra vires. By a majority, the High Court decided that question in the affirmative if the non-citizen had been detained as a result of an officer, within s 5 of the Act, forming a reasonable suspicion under s 189(1) of the Act that the non-citizen was a person in the migration zone and was an unlawful non-citizen.

79    The majority of Gleeson CJ, Gummow, Hayne and Heydon JJ said (at 622-623, [28]):

That is, it follows from the considerations just mentioned that s 189 may apply in cases where the person detained proves, on later examination, not to have been an unlawful non-citizen. So long always as the officer had the requisite state of mind, knowledge or reasonable suspicion that the person was an unlawful non-citizen, the detention of the person concerned is required by s 189. And if the Minister brought about a state of affairs where an officer knew or reasonably suspected that a person was an unlawful non-citizen by steps which were beyond the lawful exercise of power by the Minister, it does not automatically follow that the resulting detention is unlawful. Rather, separate consideration must be given to the application of s 189 – separate, that is, from consideration of the lawfulness of the Minister's exercise of power. If it were suggested that the Minister had exercised power where the Minister knew or ought to have known that what was done was beyond power an action may lie for the tort of misfeasance in public office. But that has never been the respondent's case in this matter.

(Footnotes omitted).

80    On the facts, the majority was satisfied that the respondent Taylor’s detention was lawful. Their Honours said (at 628, [49]-[51]):

At the trial of these proceedings, those officers who had been responsible for effecting the respondent's detention gave unchallenged evidence of the steps each had taken before detaining the respondent. Each officer had been provided with what, on its face, appeared to be a regular and effective decision of the Minister to cancel the respondent's visa. Each officer checked whether the respondent held any other visa. Upon finding that he did not, the officer concerned detained the respondent.

Plainly, each suspected that the respondent was an unlawful non-citizen. It was not suggested that either had acted in bad faith. The conclusion that each reasonably suspected that the respondent was an unlawful non-citizen follows inevitably.

It also follows from that fact, and the reasons given earlier, that the respondent's detention was lawful and required by the Act. Nothing was said to have occurred during either period of detention that would affect the conclusions that, until an order was made quashing the relevant decision to cancel the respondent's visa, those who detained the respondent reasonably suspected that he was an unlawful non-citizen, and that accordingly, his detention was lawful and required by the Act.

This Case

81    The respondents submitted that, even though the appellant had been unlawfully detained for 1,203 days, he could and would have been lawfully detained in any event, and it followed that he was not entitled to compensatory damages. He could and would have been lawfully detained if the tort had not been committed because, having regard to the cancellation of his visa by the Acting Minister, an officer could and would have formed the reasonable suspicion referred to in s 189(1) of the Act. He would then have been kept in immigration detention under s 196(1) of the Act, and the fact that he was challenging the decision to cancel his visa on the ground that it was unlawful would not have affected the statutory requirement in s 196 of the Act to keep him in immigration detention. We think that contention is correct.

82    This conclusion certainly goes one step further than Ruddock (High Court) in that it relates to the damages to be awarded, not the lawfulness of the detention. However, the step is consistent with the principle identified in Lumba and subsequent cases in the United Kingdom. We say identified rather than established or enunciated because the principle is not a new one. It is a basic principle relevant to the award of compensatory damages under Australian common law as much as the common law of the United Kingdom. Unless there was reason to think that the principle had been excluded by the particular statutory context, then it should be applied. No statutory provisions suggesting the exclusion of the principle were identified in this case.

83    The appellant submitted that the respondents’ argument should not be accepted for four reasons.

84    First, he submitted that Lumba and the decisions which followed it were of limited assistance because they were decided under different statutory regimes and because this Court is not bound by those decisions. It is true that the decisions were made under different statutory regimes and that this Court is not bound by them. However, as we have said, they identify a basic principle of compensatory damages which is part of the common law of Australia.

85    Secondly, the appellant submitted that acceptance of the respondents’ argument would be to go one step further than what the High Court decided in Ruddock (High Court). As we have already said, that is true, but there is nothing in Ruddock (High Court) to suggest that the step should not be taken.

86    Thirdly, the appellant submitted that he had not been lawfully detained in the first place and there was nothing to suggest that he would have been detained at any time during which he was kept in detention under s 196(1) of the Act. This seems to us to combine impermissibly what in fact happened with the relevant counter-factual. The relevant counter-factual is that the appellant had not been unlawfully detained in the first place, and requires the Court to consider what could and would have happened had the tort not been committed.

87    Finally, the appellant challenged the primary judge’s conclusion at a factual level in that he submitted that the respondents had not adduced any evidence to the effect that it was inevitable an officer would have formed the relevant opinion under s 189(1) of the Act and detained the appellant. The only evidence that could conceivably bear on the matter was evidence from a Ms Lorilee Lockhart, who was employed by the Department in October 2003. She was employed in the Removals Team in the Compliance Section of the Department in Perth. Her duties included making arrangements for the detention, removal, and deportation of unlawful non-citizens in accordance with the Act. She said that there was a standard practice or procedure following visa cancellations by the Minister under s 501 of the Act. The National Office of the Department in Canberra would telephone the Section 501 Cancellation Team and advise it of the cancellation. The Manager of that Team would then ensure that all relevant persons within the Removals Team were informed of the cancellation. She also said that, in October 2003, the Removals Team maintained a spreadsheet register of persons in prison, persons unlawful, and persons being considered for visa cancellation under s 501 of the Act. The spreadsheet was monitored and updated for prison release dates as it was not uncommon for prisoners to be released prior to their expected release date. On 3 October 2003, Ms Lockhart was aware that the appellant was in Acacia Prison, and due to be released on 5 October 2003. She was also aware that the Minister had personally cancelled his visa and he was, therefore, an unlawful non-citizen. Ms Lockhart also said that, in October 2003, there was a standard practice or procedure in relation to prisoners whose visas had been cancelled and who were about to be released from prison. The cancellation papers would be sent to the prison manager who would relay them to the prisoner. The prison manager would then send a facsimile with a signed slip back to the Department. On the basis of the Acting Minister’s cancellation of the appellant’s visa, Ms Lockhart initiated arrangements for the appellant’s detention.

88    The primary judge relied on the provisions of the Act rather than evidence to support his conclusion that the appellant could and would have been lawfully detained by an officer performing his or her duty under s 189(1) of the Act (see [96] of his third judgment). We think that he was correct in doing so. The definition of “officer” in s 5 of the Act is very broad, s 189(1) of the Act places an obligation, not a mere discretion, on an officer to detain a non-citizen in the circumstances envisaged in the section, and, finally, nothing was put to this Court which suggests that any officer would have viewed the cancellation of the appellant’s visa as other than regular and effective.

89    We uphold the primary judge’s conclusion that the appellant was entitled to nominal damages only and not compensatory damages.

Whether Nominal Damages Should Have Been Ordered Against the Acting Minister

90    The primary judge ordered that both the Commonwealth and the Acting Minister pay the appellant nominal damages of $1.00. The previous Full Court’s fifth order only refers to false imprisonment by the Commonwealth (see [39] above). This was raised during the course of submissions and led to an application to amend the Notice of Cross-Appeal brought by the Commonwealth to assert that the order for nominal damages should not have been made against the Acting Minister.

91    On the face of it, the contention appeared to be correct. However, on closer examination of the course of the proceedings, it seems to us that the contention should be rejected.

92    In his first judgment, the primary judge awarded compensatory damages against both respondents in the sum of $3,000. As against the Acting Minister, that was on the basis of two causes of action, namely misfeasance in public office and the tort of false imprisonment (see 209, [123] and 220, [192] of the primary judge’s first judgment). The previous Full Court set aside the primary judge’s conclusion that the Acting Minister was guilty of misfeasance in public office, but did not indicate any disagreement with the primary judge’s conclusion that he was liable for the tort of false imprisonment. The point does not appear to have been raised by the respondents when the proceeding went back to the primary judge on the remitter. It seems to us that it is too late for the matter to be raised now, and we would refuse the application for leave to amend the Notice of Cross-Appeal.

Damages

93    The primary judge also addressed the question of aggravated damages and exemplary damages on the assumption that he was correct to conclude that the appellant was entitled to nominal damages only. To prevent a further remitter in case he was wrong, he also considered damages on the assumption that the appellant was entitled to compensatory damages.

94    This section deals with damages on the former assumption.

95    In Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118, Windeyer J (at 149) described the difference between aggravated and exemplary damages as being:

... that aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment — moral retribution or deterrence.

(Gray v Motor Accident Commission (1998) 196 CLR 1 at 4, [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ).

96    The primary judge said that his conclusion that the appellant was not entitled to compensatory damages meant that he was not entitled to any aggravated damages. In his Amended Notice of Appeal, the appellant contended that the primary judge erred in failing to award aggravated damages. His written Outline of Submissions included submissions directed to that ground of appeal. However, the ground of appeal and the written submissions seem to be directed to the primary judge’s views on aggravated damages on the assumption that he was wrong in saying the appellant was not entitled to compensatory damages.

97    In any event, we think that the primary judge was correct to reject the claim for aggravated damages. The refusal of compensatory damages means that there was no harm done to the appellant which could have been the subject of an award of aggravated damages.

98    In Gray v Motor Accident Commission (1998) 196 CLR 1 at 7, [14] Gleeson CJ, McHugh, Gummow and Hayne JJ said that the circumstances in which exemplary damages may be awarded could not be reduced to a single formula. The phrase used by Knox CJ in Whitfield v De Lauret and Company Limited (1920) 29 CLR 71 at 77 – “conscious wrongdoing in contumelious disregard of another’s rights” – described at least the greater part of the relevant field.

99    When we come to deal with the cross-appeal, we reach the conclusion that the primary judge erred in awarding exemplary damages. For completeness, we would say that, even if we are wrong, we do not think the primary judge erred in his assessment of the amount of exemplary damages.

100    The main submission advanced by the appellant was that the primary judge had erred because he had not altered his award despite the fact that the previous Full Court had found that he was unlawfully detained for 1,203 days rather than just one day. We reject this submission. If, as the primary judge found (and we agree), the appellant would have been lawfully detained in any event, there was no reason to increase the award of exemplary damages.

Compensatory Damages on the Alternative Hypothesis

101    The primary judge considered the amount of compensatory damages which should be awarded to the appellant in the event that he was wrong in accepting the respondents’ nominal damages contention. The primary judge said that he would have awarded the appellant the sum of $265,000 in compensatory damages and, on the appeal, the appellant submitted that this figure was manifestly inadequate. In view of our earlier conclusion, it is not strictly necessary for us to consider this submission. However, the issue was the subject of extensive submissions and it is appropriate that we express our views on it.

The Primary Judge’s Reasons

102    The primary judge asked the appellant’s counsel during closing submissions to submit a memorandum describing the evidence relied upon in respect of each of the items of the appellant’s claims for damages. No such memorandum was submitted.

103    The primary judge rejected an approach to damages which involved the application of a daily rate to the period of detention. He said that a substantial proportion of the award of damages should be in respect of the initial shock at being arrested. In that respect, he identified various factors which substantially mitigated the initial shock suffered by the appellant in this case.

104    The primary judge said that he gained no assistance from the settlement reached with Ms Cornelia Rau in respect of her lengthy detention. He said that he did gain assistance from the decision in Nye v State of New South Wales & Ors [2003] NSWSC 1212 (“Nye”), and he outlined the circumstances of the plaintiff’s arrest and detention in that case, and the awards of damages made by the judge. He said that he also gained assistance from the awards made at first instance in Taylor v Ruddock (unreported, District Court of New South Wales, Murrell DCJ (as her Honour then was), 18 December 2002) and how challenges to those awards were dealt with by the New South Wales Court of Appeal (Ruddock (NSWCA)).

105    The primary judge considered that there was substance in the Commonwealth’s contention that there was a rational relationship between, on the one hand, the amount of general damages payable to persons whose enjoyment of life has been severely and permanently curtailed by reason of physical injury inflicted by another person and, on the other hand, the amount of general damages awarded for the loss of liberty along with the humiliation, indignity, and mental distress suffered by a person who has been unlawfully detained by another person. He referred to the awards in two Western Australian cases falling into the former category (Best (by his next friend Catherine Elizabeth Jordan) v Greengrass [2012] WADC 44; Wall v Cooper [2008] WASCA 53).

106    The primary judge said that he accepted and took into account the fact that the appellant suffered anxiety and stress during his period of detention, and that he was treated for depression during and after his period of detention. However, in the absence of any psychiatric evidence, he was not prepared to accept the appellant’s claim that his detention caused a permanent exacerbation of his pre-existing psychiatric condition. The primary judge considered the appellant’s claim that, as a result of his detention, he had lost employment and educational opportunities, and the capacity to earn an income. He said that the appellant did not adduce evidence of sufficient probative value to permit him to make a specific award of damages attributable to this claim. However, he said that he did take into account the fact that, as a result of his detention, the appellant was deprived of the opportunity to pursue an ordinary life, and that would have included opportunities to pursue further study and to earn income.

The Challenges to the Award and their Resolution

107    The appellant challenged the primary judge’s reasons on the following grounds.

108    First, the appellant submitted that the primary judge did not state in a clear and concise way the reasons for his award of $265,000. He referred to authority which stated that a judge awarding damages should do more than simply state a total amount without any disclosure of the mental processes by which that sum has been arrived at. The process of reasoning whereby the award was arrived at should be exposed (Gamser v The Nominal Defendant (1977) 136 CLR 145 at 149 per Stephen J). We will return to this point after we have considered the appellant’s specific criticisms.

109    Secondly, the appellant submitted that in his approach to compensatory damages there was nothing in his Honour’s reasons to suggest that he departed from the award he made after the first trial of $3,000 for false imprisonment. He submitted that that amount was manifestly inadequate in light of the authorities which suggested that $25,000 was the “going rate” (Goldie v Commonwealth and Others (No 2) [2004] FCA 156; (2004) 81 ALD 422 (“Goldie”); Nye). We reject this submission. First, there is nothing to indicate that his Honour considered that his previous figure of $3,000 was the appropriate figure for the first day of unlawful detention. Secondly, we do not think the authorities are such that it can be said that $25,000 is the going rate. Goldie is not authority for that proposition as can be seen quite clearly from the breakdown of the award at 429-430, [21]. As to Nye, that also is quite a different case as the primary judge, with respect, correctly recognised. Whilst it is true that Mr Nye was awarded “$25,000 as compensation for the arrest and period of detention on 24th July 1991”, Mr Nye went from home to gaol and the circumstances of his arrest were such “as to be likely to strike terror into the heart of almost any person” (at [266] per O’Keefe J).

110    Thirdly, the appellant submitted that the primary judge erred insofar as he relied on the Court of Appeal’s decision in Ruddock (NSWCA). The primary judge said that this case could give further guidance on the quantum of damages for loss of liberty for a long period arising from wrongful imprisonment, and that Spigelman CJ had observed (at 279, [50]) that the quantum of damages – $116,000 for a total period of detention of 316 days – was low, but not so low as to amount to appellable error. The appellant submitted that the primary judge erred in relying on Spigelman CJ’s approach because Spigelman CJ had erred in relying on the approach adopted by the Court of Appeal in England in Thompson; Hsu v Commissioner of Police of the Metropolis [1998] QB 498 at 515. In Ruddock (NSWCA), Spigelman CJ said (at 279, [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; Hsu 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.

We reject this criticism of the primary judge’s approach. We agree that damages for false imprisonment cannot be computed on the basis that there is some kind of applicable daily rate. As to the other observations, we agree with them providing they are not applied too rigidly.

111    Fourthly, the appellant submitted that the primary judge erred in not having regard to the settlement in the case involving Ms Rau. The primary judge did not err in refusing to rely on the settlement in that case because the rationale for the quantum of compensation paid to Ms Rau had never been the subject of any judicial consideration. Despite all the submissions made by the appellant, no reliable conclusion can be drawn from the settlement. The allegations of loss and damage, and the evidence in support of those allegations, are not known.

112    Fifthly, the appellant submitted that the primary judge erred in having regard to awards in serious personal injury cases. The appellant submitted that, whilst there may be a rational relationship between awards in serious personal injury cases and awards in defamation cases (Coyne v Citizen Finance Limited (1991) 172 CLR 211 at 221 per Mason CJ and Deane J; Carson v John Fairfax & Sons Limited (1993) 178 CLR 44 (“Carson v Fairfax”) at 59 per Mason CJ, Deane, Dawson and Gaudron JJ), there is no rational relationship between awards in serious personal injury cases and awards in false imprisonment cases. The appellant submitted that false imprisonment cases have a number of distinctive features which make comparison with personal injury cases of no use. For example, the defendant in most false imprisonment cases is the State and the common law has traditionally placed a high value on individual liberty. The appellant referred to Trobridge v Hardy (1955) 94 CLR 147 at 152 per Fullagar J; Re Bolton and Another; Ex parte Beane (1987) 162 CLR 514 at 528-529 per Deane J. We do not think that the primary judge erred in concluding that a rational relationship should exist between, on the one hand, general damages payable to persons whose enjoyment of life has been severely and permanently curtailed by reason of physical injury inflicted by another person, and the amount of general damages awarded for the loss of liberty, along with the humiliation, indignity, and mental distress suffered by a person who has been unlawfully detained by another person, on the other. We think that there is a rational relationship between the two types of awards. In Carson v Fairfax, Mason CJ, Deane, Dawson and Gaudron JJ said (at 57-58):

In Coyne, Mason C.J. and Deane J. considered that it is legitimate for an appellate court considering an appeal against the quantum of damages in a defamation case to bear in mind “the scale of values” applied in dealing with appeals in cases of serious physical injury. There is no occasion here to repeat the reasoning advanced in support of that conclusion. That conclusion does not deny that the harm suffered in defamation cases differs from the “tearing of flesh and bone and the pain of body” suffered in personal injury cases nor that “precise comparisons” should not be drawn between the different types of cases. But for an appellate court which must test the quantum of a defamation award against some criteria to be prohibited from considering awards of general damages in personal injury cases would exclude reference to a potentially relevant criterion.

(Citations omitted, emphasis in original).

113    With respect, we think the primary judge adequately explained the reasons for his assessment of $265,000. Each case differs and the quality of evidence differs. The primary judge’s assessment seems to us to be low, but not so low as to indicate error.

114    Although the primary judge assessed aggravated and exemplary damages on the alternative hypothesis, we do not see any benefit in addressing the appellant’s challenges to his decision on the alternative hypothesis to refuse to award any aggravated damages (other than the amount of $750 in relation to one specific incident), and to assess exemplary damages at the same figure of $25,000. As to aggravated damages, it is not entirely clear to us that his Honour did address the issue, leaving aside the assumption that the appellant would have otherwise been lawfully detained (see [145] of the primary judge’s third judgment), and, as to exemplary damages, we would be doing so on the basis of yet a further assumption that our conclusion that exemplary damages should not have been awarded is wrong. None of that seems to be a profitable exercise.

EXEMPLARY dAMAGES

115    The primary judge awarded the appellant the sum of $25,000 by way of exemplary damages. That award was made only against the Commonwealth. By its cross-appeal, the Commonwealth contends that the primary judge erred in awarding exemplary damages.

The Primary Judge’s Reasons

116    The starting point is the acts and events in September and October 2003.

117    The respondents called two witnesses at the first trial. They were Ms Rebecca Chow and, as we have already mentioned, Ms Lorilee Lockhart. The primary judge said that there were no material factual disputes that required him to make credibility findings in respect of any of the witnesses.

118    In September 2003, Ms Rebecca Chow was employed as an officer in the Section 501 Cancellation Team in the Compliance Section of the Perth office of the Department. Her duties included preparing submissions for the Minister to consider in respect of the cancellation of visas under s 501 of the Act.

119    On 16 September 2003, Carr J handed down his decision in Fernando v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 975. A legal officer advised that, as a result of the decision, the appellant could not be removed from Australia. On the same day, Ms Chow received an email from her supervisor, Mr Colin Drysdale. This email forwarded two emails from a Mr Vincent Giuca. Mr Giuca was an officer in the Canberra office of the Department and he advised of Carr J’s decision, and asked that a new visa cancellation process be commenced as soon as possible. He advised that the new cancellation process should not use the non-disclosable information which had previously been used. In one of the emails, he said:

I understand Fernando is coming out of prison on the 5th of October. In a notice to cancell [sic] we need to give him 14 days to respond. If one of your officers could hand deliver a notice of intention to cancel tomorrow, and gave him 14 days to respond, an assessment and decision could be finalised before he is released.

120    On 17 September 2003, Ms Chow drafted a Notice of Intention to Consider Cancelling a Visa under Section 501(2) of the Act. The draft contained a statement that a response was required by 1 October 2003 and that, if no response was received, a decision would be made using information already held by the Department.

121    The appellant was given a notice in those terms on either 17 or 18 September 2003 when an officer visited him in Acacia prison. The primary judge found that the notice was served on 18 September 2003. It was not suggested that anything turned on the difference.

122    About a week before 1 October 2003, the appellant contacted the Acting Minister’s office in Canberra by telephone. He spoke to a Mr Charles Wann, who the primary judge described as an “official”. The appellant asked for an extension of time within which to provide his submissions. Mr Wann said that he did not have authority to grant an extension of time, but that he would pass his request on to the Department.

123    On 25 September 2003, Ms Chow sent an email to Mr Giuca in the following terms:

I refer to your direction of 16 September 2003 that a decision be finalised before Mr Fernando’s release on 5 October 2003 (Sunday).

The Notice was hand delivered to Mr Fernando on 17 September 2003. He has until 1 October 2003 to respond.

I will complete the submission, and hopefully - have it cleared by this office at the end of 2 October (Thursday). I will send you an electronic copy of the submission, including the annexures which will give the Minister Friday (3 October) to make his decision.

I understand the Minister is overseas. Will this affect if a decision can be made before 5 October? Or is there some other Minister or person that will be making the decision on his behalf?

Please liaise with Kevin O’Connor (Acting Manager) regarding the receipt of the Minister’s decision in the event that the decision is not finalised before the close of this office on 3 October.

124    Mr Kevin Pullen, who was an officer employed in the Canberra office of the Department, responded to Ms Chow’s email saying that Mr Giuca was away and that the Minister would be overseas on 3 October 2003.

125    On 26 September 2003, Mr Pullen sent an email to Ms Chow and Mr O’Connor in the following terms:

I have discussed the Fernando matter with Avinesh Chan in the Minister’s office and he supports your proposal that this matter be put for Mr Hardgrave in his capacity as Acting Minister. Avinesh will alert Minister Hardgraves [sic] office that the submission is likely to be ready for his signature next Friday. You will therefore need to get the submission and all associated attachments to us by Friday morning. We will then arrange to personally deliver to Minister Hardgrave’s office.

126    On 29 September 2003, Mr Chan sent an email to Ms Chow in the following terms:

I have talked to Minister Hardgrave’s office re the Cancellation sub that will be coming their way.

Is it possible for the submission to be ready for [indistinguishable]. I note that Mr Fernando would be due for release on the weekend - if he is to be taken into immigration detention straight away, the sub would need to be signed and returned to Perth before the weekend?

Also note that Minister Hardgrave is in Brisbane, so his office would need to send it there for signature - and that his acting period will end on the weekend. Further complication being that there will be a new Minister for Immigration on Tuesday. Best if the sub was signed before Friday to ensure that everything goes smoothly.

127    The appellant had not received a response to his application for an extension of time by 29 September 2003, and so he handed part of his submissions to the Acacia prison authorities in Perth to be posted to the Minister’s office in Canberra. The submissions were voluminous. They were posted that day.

128    As at 30 September 2003, Ms Chow was the person within the Department who was going to prepare the submission. She needed some urgent advice about a difficulty which had arisen and so she sent an email to Ms Vicki Tumini in the following terms:

I refer to our discussion this morning.

•    On 31 July 1998 Mr Fernando was sentenced to a total of 8 years imprisonment for 3 counts of sexual penetration without consent.

•    The Minister cancelled Mr Fernando’s visa under s 501 on 29 November 2001.

•    On 10 January 2002, after receiving the Notice of Cancellation and a copy of the decision record, Mr Fernando sent to the department comments regarding the cancellation decision.

•    On 16 September 2003 the Federal Court quashed the Minister’s decision on the basis that non-disclosable information was put to the Minister to which Mr Fernando was not given the opportunity to comment on the substance of the non-disclosable information.

•    Due [to] the serious nature of his crimes, the department has decided to re-submit Mr Fernando’s case to the Minister for a fresh decision, without the non-disclosable information.

Please note that this is a matter of urgency. Mr Fernando is being released on 5 October 2003 (this Sunday). We hand delivered a new NOICC on 17 September 2003 and he has until 1 October (Wednesday) to respond. I need to have the submission completed by Thursday morning.

As part of his letter of 10 January 2002, Mr Fernando submitted a copy of the decision record with his comments embedded throughout. Problem: the decision record refers to the non-disclosable information which we want to leave out of the new submission. You were of the opinion that his comments though not in direct response to the new Notice would need to be put to the Minister. You also suggested that the references to the non-disclosable information be blacked out. As an alternative, my manager suggested that a note be attached to the submission stating that the non-disclosable information referred to the in original decision record has been excluded for Minister’s consideration for the current decision.

I am faxing to you Mr Fernando’s response of 10 January 2002 for your advice as to how I can still include the comments embedded in the decision record but at the same time, exclude the references to the non-disclosable information.

I appreciate your assistance in this matter. Thanks.

129    On 30 September 2003, the appellant sent a facsimile to the Perth office of the Department advising that the submissions in response to the notice of intention to cancel his visa had been posted to the Minister’s office in Canberra for privacy reasons. The appellant also referred to the fact that he had not received a response to his request for an extension of time. Later on that day, an officer from the Perth office of the Department, Mr Richard Keane, contacted the appellant regarding the facsimile.

130    Ms Chow sent two emails on the afternoon of 30 September 2003. The first was sent to Ms Tumini and Ms Basic, with copies to Mr O’Connor and Mr Drysdale at 1.38pm:

I require some further advice regarding Mr Fernando.

We have just received a response from Mr Fernando regarding the Notice of 17 September 2003 (see attachment). The Notice directed him to submit comments by 1 October to the Perth office. However, he states that he has sent his submission to [sic] directly to Minister Hardgrave. Clearly, we will not be receiving those comments in the Perth office tomorrow. Are we bound to consider those comments?

Also note that his submission is apparently, 256 pages long. In light of the strict time frame we have set for an assessment and finalised decision - and the volume of Mr Fernando’s response, Kevin O’Connor is concerned as to whether the Minister will be seen to have properly considered all of his comments.

Vicki please let me know if you did not receive the fax of Mr Fernando’s response of 10 January 2003.

131    Ms Chow gave evidence that she had some concerns about whether they were bound to consider the comments which the appellant said he had sent.

132    The second email was sent to Ms Tumini and Mr Gerrard, with copies to Mr O’Connor, Ms Basic, and Mr Chand at 4.01pm:

In a telephone conversation Mr Fernando told our office that the submission sent to Minister Hardgrave was a “work in progress”, that it is substantially the same as those documents filed in the Federal Court but that he had made some amendments. He told an officer that due to privacy concerns his submission had been referred to the Minister personally and would not release “Volume 4” to Perth DIMIA officers for collection by 1 October 2003.

I understand that Minister Hardgrave’s office has not received a copy of Mr Fernando’s original submission - only a fax that indicated that he had sent the submission contained in 2 envelopes today.

133    Sometime late in the afternoon of 30 September 2003, it was decided that the submission would be prepared by Mr Niall Stoddart in the Canberra office rather than Ms Chow. Ms Tatam advised Ms Chow by email also sent to Mr Charles Wann:

Charles Wann from Mr Hargraves [sic] office has advised that: Amanda Lynch is travelling up Thurs afternoon, so the submission will either have to get to this office by then, or go up by bag on Friday. Amanda will need to be briefed beforehand about the submission, as well as what the Minsiter [sic] needs to do in terms of signing then faxing the decision record to Perth on the Saturday. I’m assuming in all this that Minister Hardgrave is acting Minister Ruddock up to and including Saturday.

Charles: I have received yr fax. Would you (or Avinesh) be able to confirm the acting Minister’s arrangements pls?

(Original emphasis).

134    Ms Chow and Mr Allen Williams visited the appellant in Acacia prison on 2 October 2003. Ms Chow’s note of some of the matters discussed is as follows:

We explained that the Immigration office in Canberra had not received his submissions and that we were there to give him the opportunity to provide a verbal response as to why he believed his visa should not be cancelled until s 501.

...

Mr Fernando explained that he did not want the Perth office to look at the submission for reasons at [sic] confidentiality. He said that he had sent his submission consisting of 4 volumes and contained in 2 envelopes to Minister Ruddock at the Benjamin offices. He emphasised that he only wants the Minister and his associates in Canberra to have access to those documents. He stated that the ‘Volume 4’ filed to the Federal Court is ‘only a fraction’ of the submission he sent to the Minister in that it is much ‘bigger and complex’. He also claimed that he had problems submitting the submission earlier because of a power failure at the prison.

...

Again we explained that the office in Canberra had not received his submission and that it was in his interest that he provide a copy of the submission to us to pass it directly to Canberra to be included in his submission to the Minister. He explained that he could in no way release it to us. He explained that the submission formed part of his submission to the Royal Commission into Western Australian Police Corruption. ‘Operational Blizzard Alpha’ relates to police corruption and ‘Operational Blizzard Beta’ refers to the disappearances of women from Claremont.

135    The appellant filed an application in the Western Australia district registry of this Court on 2 October 2003 seeking to review the decision and conduct of the Visa Cancellation Unit of the Perth branch of the Department.

136    The minute and issues paper prepared by officers of the Department for the Acting Minister was described by the primary judge in the following way (at [41]-[47]).

The minute, which had been prepared by the departmental officers, was signed by Ms Yole Daniels, the Assistant Secretary, Compliance and Analysis Branch of the department and forwarded to the Acting Minister on 3 October 2003. Accompanying the minute was an issues paper which had also been prepared by the departmental officers. The issues paper included a section headed: “Statement of Reasons”, which anticipated the Acting Minister making a decision to cancel Mr Fernando’s visa.

Paragraph 9 of the minute stated that the Federal Court had on 16 September 2003, “quashed” the Minister’s previous decision to cancel Mr Fernando’s visa on the basis that Mr Fernando had been denied procedural fairness. The minute went on to say that certain non-diclosable [sic] information had been provided to Minister Ruddock before he decided to cancel Mr Fernando’s visa and Mr Fernando was not provided with that information and Mr Fernando had not been given an opportunity to comment upon the substance of it.

Paragraph 10 of the minute stated:

The department requests that you consider whether to cancel Mr Fernando’s visa under s 501(2). However, the non-disclosable information, previously put to Mr Ruddock, will not be put to you.

The minute then went on to state:

ISSUES

11.    Attached are issues for your consideration regarding the possible cancellation of Mr Fernando’s visa under section 501(2) of the Act.

12.    Your decision must be based only on the information provided to you. You must disregard the fact that certain non-disclosable information was considered in relation to the previous cancellation decision that was quashed.

The accompanying issues paper was headed:

Issues for consideration of possible cancellation of visa under s 501(2) of the Migration Act 1958.

The purpose of the issues paper is described as follows:

1.    To seek your decisions on:

•    Whether Mr FERNANDO passes the character test in s 501(6) of the Migration Act; and

•    If not, whether to cancel his visa pursuant to s 501(2) of the Migration Act.

2.    Should you choose to make a cancellation decision the draft statement of reasons at part E should set out correctly your reasons for doing so. If it fails to do this a revised statement of reasons that includes your required amendments will be prepared.

The issues paper stated that Mr Fernando was currently held in custody at Acacia prison and that Mr Fernando was due to be released from prison on 5 October 2003. The issues paper also stated that Mr Fernando had been served with a notice inviting him to submit in writing any comments which he believed to be relevant to the consideration of the question of whether his visa should be cancelled. The issues paper went on to say that Mr Fernando was given until 1 October 2003 to respond to the notice and that Mr Fernando had sent his submissions directly to the Minister’s office in Canberra, and that the submissions had not yet been received. A copy of the notice of 17 September 2003 was annexed to the issues paper. The issues paper also stated that Mr Fernando had advised two departmental officers who had visited him in Acacia prison on 2 October 2003, that the submissions were more extensive than the information already before the department, and that he had refused to give further copies of the submissions to the officers.

137    On 3 October 2003, the Acting Minister made the decision to cancel the appellant’s visa without having regard to the appellant’s written submissions which were sent to the Minister’s Canberra office by the appellant on 29 September 2003, and which arrived in the Minister’s Canberra office on 7 October 2003.

138    The primary judge found that both officers of the Department and the Acting Minister had acted in conscious and contumelious disregard of the rights of the appellant to procedural fairness, and his right not to have his liberty curtailed, save by lawful process.

139    The critical findings made by the primary judge in his second judgment were as follows:

(1)    the conduct of the officers of the Department who prepared the minute and the issues paper to the Acting Minister, and the Acting Minister, demonstrated a cynical, conscious, and contumelious disregard for the rights of the appellant;

(2)    each of the officers of the Department, including Ms Yole Daniels, who signed the minute, knew on 3 October 2003 that the appellant had sent his submissions to Canberra and that he had a right, as an incident of the right to procedural fairness, to have his submissions considered prior to the cancellation of his visa;

(3)    each of the officers of the Department knew that the Acting Minister would not be in a position to consider those submissions if the Acting Minister was to make a visa cancellation decision on 3 October 2003;

(4)    the officers of the Department knew that the appellant could only be detained following a lawful cancellation of his visa, and that a breach of procedural fairness would render the visa cancellation unlawful;

(5)    the officers of the Department nevertheless forwarded the minute and issues paper to the Acting Minister on 3 October 2003 rather than waiting for the appellant’s submissions to arrive, so as to facilitate the making of the visa cancellation decision by the Acting Minister on 3 October 2003, if he was so minded; and

(6)    the officers of the Department deliberately engaged in this conduct in furtherance of “the departmental stratagem” to have the appellant detained on 5 October 2003.

140    The primary judge said that these findings were to be inferred from the email correspondence he identified in his first judgment, and which we have summarised above, and from the terms of the minute and issues paper themselves, particularly paragraph 9 of the minute. In addition, the primary judge noted that none of the officers of the Department or the Acting Minister gave evidence and he inferred that their evidence would not have assisted the case of the first and second respondents respectively.

141    The primary judge concluded that the officers of the Department, in preparing and forwarding the minute and issues paper to the Acting Minister on 3 October 2003, acted with conscious and contumelious disregard for the appellant’s right to procedural fairness, and his right not to have his liberty curtailed, save by lawful process, and merited the description of outrageous, arbitrary, and a high-handed exercise of executive power.

142    As to the Acting Minister, the primary judge referred to his findings in the first judgment. The primary judge did not deal with exemplary damages in his first judgment so that reference would seem to be a reference to his findings in connection with his conclusion that the Acting Minister was guilty of misfeasance in public office.

143    In his first judgment, the primary judge said that there had been a breach of the rules of procedural fairness, not only because 14 days was insufficient time (which he referred to as the Sales reason), but also because the Acting Minister had gone ahead to make a decision without waiting for submissions, which he knew were on the way to him.

144    In his first judgment, the primary judge found that the Acting Minister knew on 3 October 2003 that the appellant had not been accorded procedural fairness, that it was beyond his power to cancel the appellant’s visa, and that, by making the cancellation decision in those circumstances, he would be acting unlawfully.

145    In his second judgment, the primary judge relied on further matters in assessing the amount of exemplary damages, and they were that a senior officer of the Department was involved in the conduct, and the Department and the Acting Minister went ahead despite concerns from junior officers as to whether nothing should be done until the appellant’s submissions were received (see, for example, Ms Chow’s email of 30 September 2003 referred to above at [130]), and the importance of upholding the rule of law.

146    The primary judge said in his second judgment that the award of exemplary damages was made against the Commonwealth only because it had accepted vicarious responsibility for the actions of the Acting Minister.

147    On the remitter, and in his third judgment, the primary judge said that, although the previous Full Court set aside the orders he had made in relation to exemplary damages, it “left in place” the findings he made in relation to the question of exemplary damages. He saw no reason to alter his previous award of $25,000.

148    The previous Full Court did not address the challenges to the primary judge’s conclusions with respect to exemplary damages. It did not consider it appropriate to do so having regard to the fact that damages were to be remitted to the primary judge for further hearing on a very different premise, namely, that the appellant had been falsely imprisoned between 5 October 2003 and 18 January 2007. The primary judge’s findings were left in place, but not because the Full Court heard and rejected challenges to them. It remains open to this Court to consider the Commonwealth’s challenges to the primary judge’s findings in relation to exemplary damages.

The Challenges and their Resolution

149    We have mentioned previously that the primary judge found the Acting Minister guilty of misfeasance in public office and that that finding was overturned by the previous Full Court. That circumstance is relevant to the award of exemplary damages against the Commonwealth for the reasons which follow.

150    The appellant’s pleading of misfeasance in public office by the Acting Minister was based on his conduct on or about 3 October 2003. On that day, the Acting Minister received a minute seeking his decision on the cancellation of the appellant’s visa from officers of his Department, and he decided to cancel the visa. The pleading against the Acting Minister was that at that time he knew, or ought to have known, that, because of the following:

(1)    the Notice of Intention to Cancel Visa gave the appellant only 14 days to respond;

(1)    the appellant was in prison; and

(2)    the appellant had posted his submissions to Canberra but they had not been received,

he had not afforded the appellant procedural fairness, and, accordingly, he did not have jurisdiction to cancel the visa.

151    As we have said, at the first trial, the primary judge found, in essence, that these allegations were made out and that the Acting Minister had been guilty of misfeasance in public office.

152    As we have also said, the previous Full Court overturned that conclusion. The Court noted that the 14 day period of notice accorded to the appellant was standard departmental practice at the time, and was not called into question until some three years later when Sales was decided. The Court said that a competing inference to that drawn by the primary judge was open. The primary judge inferred that the Acting Minister knew that the appellant was being denied procedural fairness. The competing inference was that the Acting Minister considered that the appellant had been given the opportunity to respond but had failed to do so in a timely fashion. The Full Court held that the inference adverse to the Acting Minister should not have been drawn, and that the primary judge erred in finding the Acting Minister guilty of misfeasance in public office.

153    The previous Full Court said (at 28-29, [126]-[127], [130]):

A competing inference was, therefore, open. It was that the Acting Minister proceeded on the basis that Mr Fernando had had the opportunity normally accorded persons in his position to make written representations relating to the proposal to cancel his visa and that he had not availed himself of that opportunity in a timely manner. In such circumstances Carr J's decision did not require the Acting Minister to defer making a decision simply because he had been advised that Mr Fernando's submissions were "in the mail". It is one thing to withhold material and prejudicial information from a person whose visa might be cancelled; it is another altogether to proceed to a decision in the knowledge that all prejudicial material has been placed before the visa holder and an opportunity provided to respond but that opportunity has not been availed of within the time allowed.

It may well be thought that the better course would have been for the Acting Minister to have deferred a decision until Mr Fernando's submissions had arrived and been considered. It does not follow, however, that, in deciding to proceed to make a decision on 3 October 2003, the Acting Minister knew that he would be denying Mr Fernando procedural fairness or that he was recklessly indifferent to that possibility.

...

A finding that a Commonwealth Government Minister has deliberately exercised an important statutory power knowing that, in doing so, he was acting unlawfully is properly to be characterised as grave. The legal consequences are potentially serious as too is the effect on the Minister's reputation. In circumstances in which, on the facts found, conflicting inferences are open and one of those inferences is favourable to the respondent, the Court will not be satisfied that the applicant's case has been proved to the necessary standard. For the reasons which we have explained this is such a case.

154    The significance of the previous Full Court’s conclusions is that they mean that the Acting Minister’s conduct cannot form the basis of an award of exemplary damages. That is because the conduct of the Acting Minister which was said to give rise to misfeasance in public office, and the conduct which was said to form the basis of an award of exemplary damages, is the same.

155    That leaves for consideration the conduct of the officers of the Department and whether that was a sufficient basis for an award of exemplary damages.

156    The pleaded allegations against the officers of the Department, said by the appellant to form a sufficient basis for an award of exemplary damages, were the same as the allegations made against the Acting Minister. On one view, unless the officers of the Department had greater knowledge than the Acting Minister, the approach of the previous Full Court means the conduct of the officers should not have formed the basis of an award of exemplary damages. However, we do not proceed in that way because we have reached the same conclusion independently of the decision of the previous Full Court.

157    The primary judge referred to Ms Yole Daniels, but he did not otherwise identify the officers who he found had acted in a cynical, conscious, and contumelious disregard of the appellant’s rights. Ms Chow, who did give evidence, appears not to have been one of them. None of the relevant officers gave evidence so the case was one of inference. This Court is in as good a position as the primary judge to determine the inferences which should be drawn. Respect and weight will be given to the conclusion of the trial judge (Warren v Coombes and Another (1979) 142 CLR 531 at 551 per Gibbs ACJ, Jacobs and Murphy JJ).

158    The primary judge said that, as none of the officers gave evidence, he inferred that their evidence would not have assisted the respondents’ case. That approach may be accepted, but, of course, that particular inference cannot make up for a gap in the evidence. It is also necessary to have regard to the gravity of the allegations made against the officers of the Department (s 140 of the Evidence Act 1995 (Cth)). This was a matter referred to by the previous Full Court in considering the claim of misfeasance in public office against the Acting Minister (Commonwealth and Another v Fernando [2012] FCAFC 18; (2012) 200 FCR 1 at 28, [128]-[129]).

159    It seems to us that a critical matter is that the 14 day period given to the appellant was what was then standard departmental practice. The adequacy of that period was not called into question until Sales was decided about three years later. The decision of Carr J in Fernando v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 975 said nothing as to the period of time to be allowed. It related to the information to be put before the decision-maker, and that issue was carefully addressed by the officers of the Department. We doubt the proposition advanced by the primary judge in his first judgment that there would be a breach of the rules of procedural fairness if a decision-maker failed to consider submissions received outside a reasonable period if he or she was told within the period that they had been sent. The previous Full Court appears not to have accepted that proposition (at 28, [126]). In any event, it is what the officers knew or understood, and we cannot see how it can be inferred that they knew or were even reckless as to the possibility that if the Acting Minister proceeded to make a decision on 3 October 2003, the appellant’s right to procedural fairness would be infringed. Absent that finding, an award of exemplary damages should not be made.

160    We would allow the cross-appeal and set aside the order awarding exemplary damages to the appellant.

CONCLUSION

161    The appeal must be dismissed. The application for leave to amend the Notice of Cross-Appeal must be refused. The cross-appeal must be allowed and the order against the Commonwealth for the payment of exemplary damages should be set aside.

162    We would give the parties an opportunity to file short written submissions on the costs of the appeal and cross-appeal.

Associate:    

Dated:    22 December 2014

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

BARKER J:

163    I have had the opportunity of reading in draft the reasons for judgment of Besanko and Robertson JJ.

164    I agree, for the reasons given by their Honours, that the appeal should be dismissed, that the application for leave to amend the notice of cross-appeal should be refused and that the cross-appeal should be allowed, with the order against the Commonwealth for the payment of exemplary damages being set aside.

165    For me, the ultimately critical issue on the appeal, from the appellant’s point of view, concerns the merits of the nominal damages contention discussed by Besanko and Robertson JJ at [61]-[89] of their reasons.

166    I accept the principle, articulated by Lord Dyson JSC in Regina (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245 (“Lumba”), at 281, [93], that compensatory damages for false imprisonment will not be recoverable where the person falsely imprisoned would have remained in detention whether the tort was committed or not. By contrast, a person who would not have remained in detention will suffer real loss, if the tort had not been committed.

167    In this case, it is necessary to ask whether, if the false imprisonment found by the previous Full Court in Commonwealth and Another v Fernando [2012] FCAFC 18; (2012) 200 FCR 1, at [82]-[93], had not occurred, the appellant would have been detained. The earlier Full Court in essence came to its finding of false imprisonment having regard to a number of decision-making deficiencies which it identified in its reasons.

168    This question has been considered by Besanko and Robertson JJ in their reasons at [86]-[88]. I too consider that, having regard to the obligation imposed by s 189(1) of the Migration Act 1958 (Cth), which requires an officer who knows or reasonably suspects a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen to detain that person, and to the evidence before the Court as to the standard practice or procedure as of October 2003 concerning the detention of prisoners whose visas have been cancelled and who are about to be released from prison, that there is no realistic basis upon which it can be concluded that the appellant would not have been detained.

169    It seems to me that the only basis upon which it could be argued that the appellant would not have been detained is if an assumption is made that the types of decision-making deficiencies identified by the earlier Full Court would be repeated. I do not consider that any such assumption can be made and indeed that it is inappropriate to make such an assumption.

170    Consequently, in my view, compensatory damages were not payable for the false imprisonment found by the previous Full Court and the primary judge was not in error in so finding.

Associate:    

Dated:    22 December 2014