FEDERAL COURT OF AUSTRALIA

Fernando v Commonwealth of Australia (No 5) [2013] FCA 901

THE COURT ORDERS THAT:

1.    The respondents pay the applicant nominal damages in the sum of $1.00.

2.    The first respondent pay the applicant $25,000 by way of exemplary damages.

3.    Within 14 days of this order, the first respondent file and serve any affidavits and submissions in relation to the question of costs.

4.    Within 7 days thereafter, the applicant file and serve any affidavits and submissions in response.

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

REASONS FOR JUDGMENT

1    The applicant, Mr Lloyd Fernando, a Sri Lankan citizen, came to Australia in 1989 and was granted a permanent residency visa in 1995. In July 1998, Mr Fernando was convicted in the District Court of Western Australia of three counts of sexual penetration without consent and was sentenced to eight years imprisonment. Mr Fernando was then 37 years old. This conviction meant that the Minister for Immigration and Multicultural and Indigenous Affairs was empowered under s 501 of the Migration Act 1958 (Cth) to cancel Mr Fernando’s permanent residency visa on the grounds that Mr Fernando had not passed the character test.

2    However, s 501(2) of the Migration Act provided that before making a decision on whether to cancel Mr Fernando’s visa, the Minister was required to accord Mr Fernando procedural fairness and provide him with an opportunity to make submissions as to why the Minister should not cancel his permanent residency visa on character grounds, notwithstanding his conviction on a serious criminal offence.

3    In 2001, whilst Mr Fernando was serving his prison sentence at Acacia prison in Western Australia, the Minister, Mr Phillip Ruddock, after he had considered submissions forwarded by Mr Fernando, cancelled Mr Fernando’s permanent residency visa.

4    However, Mr Fernando successfully challenged the Minister’s cancellation decision by a judicial review application brought in this Court heard before Carr J. The ground on which Mr Fernando succeeded was that the Minster had failed to accord Mr Fernando procedural fairness because the Minister had failed to give Mr Fernando an opportunity to comment on adverse information about Mr Fernando upon which the Minister had relied in deciding to cancel Mr Fernando’s permanent residency visa.

5    The judgment of Carr J which set aside the Minister’s cancellation decision was delivered on 16 September 2003 – 19 days before Mr Fernando was due to be released on parole from Acacia prison on 5 October 2003. (See Fernando v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 975.)

6    At this time, the Department of Immigration and Multicultural and Indigenous Affairs (the department) had a policy that applied to unlawful non-citizen prisoners whose permanent residency visa had been cancelled whilst they were in custody serving their prison sentence. This policy was that each prisoner should be taken into immigration detention immediately upon their release from prison, with a view to their early removal from Australia. The judgment of Carr J, delivered, as it was, so close to the date of Mr Fernando’s anticipated release from Acacia prison, presented the departmental officers with an obstacle to the implementation of the policy, namely, that Mr Fernando could not be taken into immigration detention immediately on his release from Acacia prison, unless his permanent residency visa had been cancelled prior to the date of his release. This meant that the Minister was again required to consider whether to cancel Mr Fernando’s permanent residency visa, which in turn meant that the Minister was again required to give Mr Fernando an opportunity to make submissions as to whether his visa should be cancelled.

7    Because Mr Fernando was due to be released on parole from Acacia prison on Sunday, 5 October 2003, the departmental officers determined that they would take such steps as were necessary to enable the Minister to make a decision in relation to the cancellation of Mr Fernando’s visa by Friday 3 October 2003. Accordingly, a departmental officer issued Mr Fernando, whilst he was still in Acacia prison, a notice of intention to cancel his permanent residency visa, and called upon him to make submissions within 14 days as to why his visa should not be cancelled. A further complication for the implementation of the department’s stratagem, was that the Minister, Mr Phillip Ruddock, was overseas at the time and Mr Gary Hardgrave was Acting Minister and his commission as Acting Minister was due to expire on Saturday 4 October 2003.

8    As it transpired, by 3 October 2003, Mr Fernando’s submissions had been posted from Perth, but not received by the Acting Minister in Canberra. Notwithstanding that the submissions had not been received, the Acting Minister made the decision on that day to cancel Mr Fernando’s permanent residency visa.

9    On 5 October 2003, upon his release from Acacia prison, Mr Fernando was immediately taken into immigration detention at Acacia prison by two employees of Australasian Correctional Management and transferred to the Perth immigration detention centre at Perth airport. Australasian Correctional Management had been contracted by the Commonwealth to provide services managing and administering the Commonwealth’s immigration detention centres.

10    Mr Fernando remained in detention at the Perth immigration detention centre until 27 January 2005, when he was transferred to the Baxter immigration detention centre in South Australia.

11    On 2 October 2003, Mr Fernando instituted a judicial review proceeding in this Court (WAD 207/2003) challenging the lawfulness of the departmental officers’ conduct in issuing to him the notice of intention to cancel his visa. This application was subsequently amended to challenge the lawfulness of the Acting Minister’s visa cancellation decision. This proceeding remained on foot until 24 January 2007, when the Minister consented to orders setting aside the cancellation decision made on 3 October 2003.

12    On 18 January 2007, Mr Fernando was finally released from the Baxter immigration detention centre in anticipation of the making of the orders in the proceeding WAD 207/2003 setting aside the visa cancellation decision. By the time of his release from immigration detention, Mr Fernando had been detained in immigration detention for 1,203 days.

13    Following his release from immigration detention, Mr Fernando commenced an application in this Court against the Commonwealth and the Acting Minister. He alleged against each respondent that he had been falsely imprisoned and was entitled to damages. Mr Fernando also claimed damages on other grounds which have now ceased to be relevant. Mr John Ley, a public spirited barrister in Perth, was appointed as Mr Fernando’s tutor for the purpose of conducting this litigation on behalf of Mr Fernando. Mr Ley is acting pro bono in this capacity.

the trial

14    At the trial, the first and second respondents defended Mr Fernando’s claim for false imprisonment on the basis that his detention on 5 October 2003 and thereafter, was lawful by reason of s 189(1) of the Migration Act, notwithstanding that in 2007, the visa cancellation decision was set aside by order of this Court.

15    Section 189(1) of the Migration Act reads as follows:

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.

16    The trial was conducted on the basis of two alternative defences founded on s 189(1) of the Migration Act. Neither of the two defences had been pleaded, but the parties conducted the trial on the basis that the two defences were in issue.

17    The first defence was that the detention of Mr Fernando was lawful from 5 October 2003 onwards. The basis of this defence was that Ms Loralie Lockhart, an officer in the Removals section of the department in Perth, on learning on Friday 3 October 2003, that the Acting Minister had cancelled Mr Fernando’s permanent residency visa, reasonably suspected that Mr Fernando was an unlawful non-citizen. The respondents went on to contend that, Ms Lockhart, acting on that suspicion, gave instructions to an officer at the Perth immigration detention centre for Mr Fernando to be detained immediately upon his release from Acacia prison on 5 October 2003.

18    The alternative defence, was that the detention of Mr Fernando was lawful from 6 October 2005 because from that date the supervisor in charge of the Perth immigration detention centre reasonably suspected that Mr Fernando was an unlawful non-citizen and continued to detain Mr Fernando on that basis. This defence was based on Mr Fernando’s own evidence that he had, on 6 October 2003, advised the supervisor in charge of the Perth immigration detention centre that his permanent residency visa had been cancelled and that he was challenging the cancellation in this Court. The respondents contended that, although the supervisor did not give evidence, it was to be inferred from Mr Fernando’s evidence of that communication to the supervisor, that, thereafter, the supervisor reasonably suspected that Mr Fernando was an unlawful non-citizen.

19    At trial, I accepted the Commonwealth’s alternative defence. On 21 July 2010, I awarded Mr Fernando $3,000 in general damages on the basis that he had been unlawfully detained for one day (Fernando v Commonwealth (2010) 188 FCR 188 (Fernando (No 1)).

20    A separate hearing was subsequently held on the question of aggravated and exemplary damages. This hearing proceeded on the basis of my earlier finding that Mr Fernando had been unlawfully detained for one day. On 24 December 2010, I made an award of exemplary damages against the Commonwealth in the sum of $25,000, and rejected Mr Fernando’s claim for aggravated damages (Fernando v Commonwealth (No 4) (2010) 276 ALR 586 (Fernando (No 2)).

21    None of the parties was particularly impressed with my judgments. The Commonwealth and the former Acting Minister appealed and Mr Fernando cross-appealed.

the full court decision

22    On appeal, the Full Court (Commonwealth v Fernando (2012) 200 FCR 1), relevantly, made the following orders:

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 defendant between 5 October 2003 and 18 January 2007.

6.    The appellants pay 85 per cent of the respondent’s costs of the appeal and his cross-appeal.

remittal of the proceeding

23    After the Full Court decision was handed down and the proceeding had been remitted to me for the assessment of damages pursuant to Order 5 of the Full Court’s orders, my attention was drawn, by a member of the Full Court, to a report of a decision of the Supreme Court of the United Kingdom, Regina (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 (Lumba), which had been delivered on 23 March 2011, after the date of the orders that I made at first instance.

24    At a directions hearing in respect of the remitted proceeding, I drew the parties’ attention to the case. I also ordered that the parties attend a mediation conference with a view to trying to settle the proceeding. The parties did not reach a settlement.

25    On 11 October 2012, I made directions for the filing of submissions and any further evidence upon which the parties wished to rely in relation to the question of damages. Neither party filed any further evidence.

26    Further, during the course of one of the directions hearings, the Commonwealth foreshadowed, that based on the authority of Lumba, the Commonwealth intended to argue at the hearing on remittal that Mr Fernando had not proved that he had suffered a loss warranting the award of substantial damages, and that he was, therefore, entitled to no more than nominal damages.

27    Mr Fernando foreshadowed that he would object to the Commonwealth seeking to advance a case which had not been advanced at trial.

Mr Fernando’s contentions on damages

28    At the resumed hearing, Mr Fernando contended that he was entitled to very substantial damages for his false imprisonment. In this regard, Mr Fernando placed particular significance upon the fact that the Full Court had made a finding that Mr Fernando had been unlawfully detained for 1,203 days. Mr Fernando referred to two cases, in particular, in support of his contention that he was entitled to very substantial damages on this account.

29    First, Mr Fernando referred to a settlement agreement the Commonwealth had made with Ms Cornelia Rau in respect of a claim which Ms Rau had brought against the Commonwealth for, inter alia, false imprisonment in immigration detention. Ms Rau alleged that she had been falsely imprisoned from 31 March 2004 to 4 February 2005. The terms of the settlement were confidential but in his written submissions, counsel for Mr Fernando referred to the fact that on 7 March 2008, the Commonwealth announced that, pursuant to the terms of the settlement, Ms Rau would receive $2.6 million in compensation and that the Commonwealth would pay her legal costs. Counsel for Mr Fernando referred to the fact that Mr Fernando had been detained for a much longer period than Ms Rau, and that nothing had been put forward by the Commonwealth that would support a smaller award for damages to Mr Fernando than Ms Rau had received.

30    Secondly, Mr Fernando relied upon the case of Nye v State of New South Wales [2003] NSWSC 1212. In that case, Mr Nye was arrested by members of the New South Wales police force and charged with murder and other charges on totally inadequate evidence. Mr Nye was then remanded in custody to Long Bay Gaol where he remained until his acquittal of the charges. After his release from custody, Mr Nye was found to be suffering from a psychiatric illness. Counsel for Mr Fernando said that Mr Nye had been unlawfully detained for 476 days and was awarded a total of $1,335,000 by way of damages. Mr Fernando, said his counsel, had been detained for almost three times as long as Mr Nye.

31    Counsel for Mr Fernando went on to observe that Mr Nye had been detained as a remand prisoner in a prison facility for all but one day of his period of detention, and that Mr Fernando’s evidence was that he found detention in the two immigration detention centres more oppressive than the prison regime that he had experienced as a serving prisoner.

32    Mr Fernando also contended that he was entitled to aggravated damages and that exemplary damages should also be awarded.

The Commonwealth’s contentions on damages

33    The Commonwealth and the former Acting Minister (whom I will hereafter refer to collectively as “the Commonwealth” when describing their contentions) contended that Mr Fernando had not suffered a loss justifying the award of substantial damages and, therefore, the Court should only order Mr Fernando nominal damages. This was because, contended the Commonwealth, once Mr Fernando’s permanent residency visa had been cancelled by the Acting Minister, Mr Fernando was always liable to be lawfully detained by an immigration officer on the basis that Mr Fernando was reasonably suspected of being an unlawful non-citizen.

34    The Commonwealth contended that the objective of an award of damages at common law for tortious conduct was to place the applicant, as nearly as possible, in the position in which he or she would have been, had the tort not been committed. The Commonwealth went on to contend that it followed from this general statement of principle that a person who was falsely imprisoned would not be entitled to substantial damages in the event that, absent the fact of the unlawful detention, he or she could and would have been lawfully detained in any event. The Commonwealth said that, by reason of s 189(1) of the Migration Act and related provisions, Mr Fernando would have been lawfully detained. This result, said the Commonwealth, “would follow inescapably, from an analysis of the statutory regime”.

35    The Commonwealth relied particularly upon the Lumba decision. In Lumba, the appellants were two foreign nationals who had been detained in immigration detention in the United Kingdom pending deportation after their visas had been cancelled on the grounds of their past criminal conduct. In detaining the two foreign nationals, the Secretary of State for the Home Department had applied an unpublished policy which was inconsistent with the published policy on the circumstances in which foreign nationals, whose visas had been cancelled on the grounds of their past criminal conduct, would be detained pending deportation. The majority of the Supreme Court observed that the criminal records and circumstances of each of the two appellants were such that, if the Secretary of State had applied the published policy, it was inevitable that the two appellants would have been detained pending deportation. However, the majority recognised that this circumstance did not have the consequence that the detention was lawful, given false imprisonment was a trespass which is actionable per se, and held that each of the two appellants had been falsely imprisoned.

36    However, the majority of the Supreme Court went on to find that the two appellants had not suffered any loss by reason of their unlawful detention, and were entitled to no more than nominal damages. At [95], Lord Dyson observed as follows:

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,…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.

37    In support of its contention, the Commonwealth also referred to the case of R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299 (Kambadzi). This is also a decision of the United Kingdom Supreme Court. It was handed down shortly after Lumba and approved the approach in Lumba in relation to nominal damages.

38    The Commonwealth went on to contend that, if it was not able to run its nominal damages argument, or if the argument was not accepted, Mr Fernando should be awarded substantial damages which reflected community standards and values. Accordingly, the quantum of the damages awarded, said the Commonwealth, should not be disproportionate to the damages awarded to persons who suffered debilitating personal injuries.

39    The Commonwealth opposed Mr Fernando’s contention that he was entitled to aggravated and exemplary damages.

nominal damages

Mr Fernando’s objections to the nominal damages contention

40    Mr Fernando objected to the Commonwealth’s nominal damages contention on three grounds.

41    First, Mr Fernando said the Commonwealth was precluded from raising a nominal damages argument, by reason of the Full Court’s observations at [99]-[102] of its reasons for decision. The relevant paragraphs of the reasons read as follows:

99    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.

100    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.

101    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.

102    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 1,203 days.

42    Secondly, Mr Fernando contended that, in any event, this was not an argument which was raised at the trial and, therefore, the Commonwealth could not raise this argument on the remittal of the proceeding to the trial judge, unless the trial judge gave the Commonwealth leave to reopen its case. Mr Fernando went on to contend that no such leave should be given.

43    Thirdly, Mr Fernando contended that the Commonwealth’s argument did not enjoy reasonable prospects of success, because the English authorities were distinguishable.

44    I will deal with each of Mr Fernando’s contentions.

45    The first question is whether the observations of the Full Court preclude the making of the Commonwealth’s nominal damages contention. The Commonwealth contended that the Full Court’s observations were not addressed to the question of whether Mr Fernando was entitled to anything more than nominal damages. This is because, said the Commonwealth, damages was not an issue on the appeal and, in particular, the question of nominal damages as opposed to substantial damages was never argued before the Full Court. The Commonwealth contended that it could not be the case that it would now be precluded from advancing this contention on the basis of the Full Court’s observations, when the point was never argued before the Full Court.

46    This aspect of the Commonwealth’s argument has caused me very considerable concern. This is because, on at least one view of the matter, it might be said that by entertaining the Commonwealth’s argument on nominal damages, this Court would be acting inconsistently with the Full Court’s decision, because [102] of its reasons expressed an expectation that this Court would, on remittal, make an award of substantial damages in Mr Fernando’s favour.

47    Because of my concern in this regard, I held a directions hearing on 11 April 2013, where I sought the parties’ views on whether I should refer to the Full Court, the question of whether this Court was precluded from considering the Commonwealth’s argument that the Court should award Mr Fernando no more than nominal damages. I also proposed, as an alternative, that the Court consider each party’s contention as to whether it was open to the Commonwealth to contend that Mr Fernando was entitled to no more than nominal damages, and, if so, whether Mr Fernando was entitled to no more than nominal damages; but also, regardless of the outcome of the parties’ contentions in respect of nominal damages, to consider the parties’ contentions on the quantum of substantial damages. I expressed the hope that if the latter course was adopted, time may be saved. This is because when this matter went to the Full Court on appeal, as it inevitably would, the Full Court would have before it my findings on substantial damages. The Full Court would then be able to dispose of the matter without having to remit the case back again to this Court.

48    The parties expressed no great enthusiasm for the proposal that I refer to the Full Court the question of whether the Commonwealth was precluded from contending that Mr Fernando was entitled to no more than nominal damages. However, the parties subsequently wrote to my Associate advising that they were content for the Court to adopt the alternative approach which had been canvassed at the directions hearing on 11 April 2013.

49    I have come to the view, not without some diffidence, that the Commonwealth is not precluded by the observations of the Full Court from advancing its argument that Mr Fernando is entitled to no more than nominal damages. This is because, in my view, the observations of the Full Court are directed to the question of whether, notwithstanding that Mr Fernando’s circumstances were such that he could have lawfully been detained, the Commonwealth should, nevertheless, be found liable for false imprisonment.

50    This is the same issue which troubled the Supreme Court of the United Kingdom in Lumba. In that case, as in this case, the Supreme Court came to the view that the unlawfulness of the detention should still be recognised and reflected in a finding of false imprisonment. At [175], Lord Hope of Craighead, in observations which reflect concerns similar to those expressed by the Full Court, said:

The key point, as I see it, is that we are dealing in this case with the tort of false imprisonment. Torts of this kind are actionable per se regardless of whether the individual suffers any harm. While not every breach of public law will give rise to a cause of action on this ground, the history of this case shows that there was here a serious abuse of power which was relevant to the circumstances of the appellants’ detention. If the rule of law is to be sustained, the detention must be held to have been unlawful. The appellants were being detained without regard to the purpose for which the Secretary of State was authorised to exercise the power by the statute. The court must insist that powers of detention are exercised according to law. If they are not, those who have abused their powers must accept the consequences. It is no answer for them to say that they could, had they put their mind to it, have achieved the same result lawfully by other means.

51    However, as mentioned above, the majority of the Supreme Court went on to find that an award of nominal damages and a declaration as to the unlawfulness of the detention, was a sufficient recognition of the unlawful conduct by the Secretary of State to satisfy the policy considerations associated with the protection of the liberty of the individual.

52    It is the case, of course, that the Full Court stated (see [41] above) that the proceeding was to 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”.

53    In my view, the reference by the Full Court to the assessment of “substantial damages”, was founded on the Full Court’s assumption that Mr Fernando suffered a loss justifying the award of substantial damages, by reason of his unlawful detention for 1,203 days. This assumption is entirely consistent with the manner in which the case was conducted at the trial, and also, on appeal. As previously mentioned, the Commonwealth did not run the argument at trial that, even if the detention was unlawful, Mr Fernando was only entitled to nominal damages because he had not suffered any loss by reason of the tortious conduct. It was common cause that no argument was addressed to the Full Court on the question of damages at all, and in particular, no argument was addressed to the Full Court on whether Mr Fernando was entitled to no more than nominal damages, even if he succeeded in his cross-appeal.

54    The next question therefore is whether, in fairness, the Commonwealth should be allowed to advance a case in respect of nominal damages which had not been advanced during the course of the trial.

55    Mr Fernando contended that the Commonwealth had, at trial, neither pleaded nor contended that Mr Fernando was entitled to no more than nominal damages. Mr Fernando went on to contend that it would be extraordinary if, having won his cross-appeal, and the matter having been remitted to the trial judge for the assessment of substantial damages on the basis that he was unlawfully detained for 1,203 days rather than one day, he was to be in a less advantageous position than he was prior to having won his cross-appeal. Mr Fernando contended that it would be unjust and unfair if the Court were to permit the Commonwealth to reopen its case to advance its nominal damages argument.

56    Mr Fernando referred specifically to the following observations of the Full Court in Lynch v Howard (1980) 44 FLR 71 at 86:

In our view the respondents should not be in a more favourable position by reason of the learned trial judge’s error in the construction of the rule, ie they should not be able to obtain a further hearing as a result of this Court exercising its powers under s 28(1)(c) to remit the proceeding to the court from which the appeal was brought for further hearing and determination.

57    Mr Fernando also relied upon the cases of Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 and Spotlight v NCON Australia Ltd [2012] VSCA 233 in support of his contention that the Commonwealth should not be given leave to reopen its case.

58    The Commonwealth contended that it was unnecessary for it to reopen its case in order to advance its argument because damages were always in issue. This also meant, said the Commonwealth, that it was unnecessary for it to have pleaded that Mr Fernando was not entitled to anything more than nominal damages. Further, said the Commonwealth, the three cases relied upon by Mr Fernando referred to at [56] and [57] above, were distinguishable.

59    In assessing the parties’ contentions, it is first necessary to have regard to the position of the Court when the Full Court has, as it has in this case, remitted a matter to the trial judge under s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), following the hearing of an appeal. This question was considered by Finkelstein J in the case of Community and Public Sector Union v Telstra Corporation Limited (No 2) (2001) 112 FCR 324 (CPSU).

60    In that case, on the remittal of the case to the trial judge, the union sought to reopen its case in order to cross-examine a witness.

61    Finkelstein J, having examined, in some detail, the authorities on the nature of the proceeding on remittal under s 28(1)(c) of the Federal Court Act, observed at [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.

62    It was by reference to these well-known rules on reopening, that Finkelstein J considered and refused the union’s application to reopen its case to cross-examine a witness.

63    In the case of Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478 (Nweiser), Clarke JA (with whom Mahoney and Meagher JJA agreed) observed:

The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be.

64    Relevantly, one of the circumstances identified by Clarke JA (at 478) as capable of giving rise to an order permitting a party to reopen its case, is where there has been a mistaken apprehension of the law.

65    As I have already mentioned, the Commonwealth has not sought to reopen its case for the purpose of seeking to lead further evidence. It said that it is content to have its nominal damages contention determined on the basis of the evidence as was adduced at trial. Nevertheless, it is certainly the case that the Commonwealth seeks to rely upon a contention which was not relied upon at trial. In my view, the question of whether the Commonwealth should be permitted to do so should be determined on the basis of the guiding principle in respect of reopening a case, namely, whether the interests of justice are better served by permitting or not permitting the Commonwealth to rely upon this contention.

66    In my view, for the following reasons, the Commonwealth should be permitted to advance its contention that Mr Fernando has not suffered a loss by reason of his 1,203 days of unlawful detention such as to warrant the award of substantial damages, and so is entitled to no more than nominal damages.

67    First, I do not accept Mr Fernando’s contention that the Commonwealth’s argument does not enjoy a reasonable prospect of success, on the basis that the English cases are distinguishable.

68    Mr Fernando said his position was distinguishable from the claimants in Lumba and Kambadzi, because at the time of his detention and at all times thereafter, his visa had not been validly cancelled by the Acting Minister. The Acting Minister had purported to cancel his visa, but, said Mr Fernando, that act was ineffective at law, as was subsequently demonstrated when consent orders were made setting aside the visa cancellation decision. In each of Lumba and Kambadzi, on the other hand, said Mr Fernando, the deportation order made in respect of each of the claimants had been valid. Mr Fernando argued that the importance of that fact for the outcome of those cases, was demonstrated by contrasting the position of those claimants with that of the claimant in Muuse v Secretary of State for the Home Department [2010] EWCA Civ 453 (Muuse). The claimant in Muuse was a European national and, therefore, never liable to be deported from the United Kingdom. Mr Fernando went on to observe that in contrast to the claimants in Lumba and Kambadzi, Mr Muuse had been awarded substantial damages in respect of his wrongful detention.

69    In my view, for the following reasons, the distinction sought to be drawn by Mr Fernando, is irrelevant to the nominal damages argument which the Commonwealth seeks to make in this case.

70    As the Commonwealth observed, it relied on the Supreme Court decisions in Lumba and Kambadzi as instances of the application, to the tort of false imprisonment in the context of immigration detention, of the principle that a party can only recover from a tortfeasor such damage as the party has suffered by reason of the tort. It was for that reason that these cases were relevant to Mr Fernando’s claim for damages for wrongful imprisonment in immigration detention.

71    I accept the Commonwealth’s contention that there are no relevant similarities between the statutory regimes in the United Kingdom and Australia in relation to the detention of foreign nationals or non-citizens in immigration detention consequent upon the cancellation of their visas on character grounds.

72    In Australia, the question of whether a non-citizen whose permanent residency visa has been cancelled on character grounds has been lawfully detained in immigration detention, does not depend upon whether the visa has been lawfully cancelled. This is because s 189 of the Migration Act provides that there is a duty on an officer under the Migration Act to take into detention a person whom the officer “knows or reasonably suspects…is an unlawful non-citizen”. The majority of the High Court in Ruddock v Taylor (2005) 222 CLR 612 (Ruddock (High Court)) emphasised that a non-citizen whose visa has been cancelled may be lawfully detained pursuant to s 189(1), notwithstanding that it subsequently transpires that the cancellation of the visa was invalid. At [28] the majority observed:

[Section] 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.

73    It follows that, contrary to the distinction sought to be drawn by Mr Fernando, the fact that a non-citizen’s visa has been unlawfully cancelled, is not determinative of whether he or she is liable to be lawfully detained under s 189 of the Migration Act. Therefore, I do not accept Mr Fernando’s contention that the Commonwealth’s nominal damages argument does not enjoy reasonable prospects of success. Indeed, I find that there is substantial merit in the Commonwealth’s argument.

74    Secondly, it is apparent that the nominal damages argument was not advanced at the trial because the Commonwealth’s legal representatives failed to apprehend that this was an argument that was open to be advanced by the Commonwealth.

75    In Nweiser, Clarke JA accepted that a course of conduct undertaken during a trial based on a misapprehension of the law is a circumstance which may permit an application to reopen to be favourably treated. Clarke JA went on to say that even where the course undertaken by counsel during the trial was deliberate, the circumstances may be such that the court would decide that the “client,…should not suffer for his or her counsel’s deliberate decision”. However, there may also be circumstances, of course, when a party may be bound by a deliberate decision to conduct the case in a particular way (Hyster Australia Pty Ltd v Anti-Dumping Authority (No 2) (1993) 41 FCR 259 at 263-264).

76    The nominal damages argument now sought to be advanced by the Commonwealth is inspired by the two United Kingdom Supreme Court judgments referred to above. It cannot be said that the legal representatives of the Commonwealth at the trial, were aware of the cases and deliberately decided not to advance the argument. This is because the cases were only decided after the determination of the first instance decision.

77    Of course, at the time of the trial there were cases in which nominal damages had been awarded for false imprisonment. However, these cases did not deal with the position of a person detained in immigration detention consequent upon the cancellation of a non-citizen’s permanent residency visa. In fact, the leading case at the time on this question, Ruddock v Taylor (2003) 58 NSWLR 269 (Ruddock (NSWCA)), was a case where the award of substantial damages had been approved by the New South Wales Court of Appeal. Subseqeuently, of course, the damages award was set aside in the High Court, on grounds that the detention was not unlawful.

78    In my view, applying the approach of Clarke JA in Nweiser, the fact that the Commonwealth’s legal representatives did not apprehend the availability of the nominal damages argument until after the Supreme Court decisions, should not preclude the Commonwealth from now being permitted to advance the argument.

79    Thirdly, the Commonwealth does not seek to lead any further evidence in order to advance its argument. In this respect, the position is different from each of the three cases referred to at [56] and [57] above, upon which Mr Fernando sought to rely in opposition to the Court permitting the Commonwealth to advance its contention on nominal damages.

80    Fourthly, and this point is related to the preceding point, the argument which the Commonwealth seeks to advance importantly has a statutory foundation. The Commonwealth’s argument is based upon the effect of the legislative scheme as it applies to the detention of unlawful non-citizens. It has ramifications which extend beyond simply the controversy between the Commonwealth and Mr Fernando. The Commonwealth’s contention raises matters of public policy, as important for immigration law and policy in Australia as was the contention raised by the Secretary of State in Lumba for immigration law and policy in the United Kingdom, a case which engaged a bench of nine in the United Kingdom Supreme Court.

81    In this regard, the position is very different to the position in each of the three cases relied upon by Mr Fernando, where, in each case, one of the parties sought to establish and advance a different factual scenario to that initially established and advanced at the trial, in circumstances where the controversy did not have wider legal and policy ramifications. The same is true in relation to the party whose application to adduce further evidence by cross-examination was refused by Finkelstein J in CPSU.

82    Fifthly, although the Commonwealth’s argument was not raised initially at the trial, the Commonwealth gave notice of the argument to Mr Fernando prior to the remitted hearing and Mr Fernando had an opportunity to consider his position. It should be observed that the parties engaged in a mediation process prior to the remitted hearing in the knowledge that the Commonwealth intended to seek to advance a nominal damages argument.

83    Sixthly, the Commonwealth would suffer a serious injustice if it were required to pay Mr Fernando substantial damages if Mr Fernando had indeed not suffered a loss warranting such damages, in circumstances where the Commonwealth had been precluded from advancing a potentially winning argument, and that argument had not been in issue before the Full Court.

84    It is, of course, the case that Mr Fernando’s expectation of being awarded substantial damages, arising from having succeeded in his cross-appeal, is substantially threatened by the Commonwealth’s proposed nominal damages argument. It is also the case that, as Mr Fernando contended, it would be most unusual if Mr Fernando, having won his cross-appeal, were to end up in a worse position, following remittal of the case. This is a powerful factor upon which I have placed considerable weight. 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.

85    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.)

Did Mr Fernando suffer a loss by reason of the tort?

86    At the heart of the Commonwealth’s contention that Mr Fernando did not suffer a loss because he could and would have been lawfully detained in any event, is the statutory scheme which deals with the detention of unlawful non-citizens, particularly, unlawful non-citizens whose visas have been cancelled under s 501 on character grounds. I set out the relevant elements of the statutory scheme below:

87    Section 501 of the Migration Act provided:

(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.)

88    Section 189 of the Migration Act provided, relevantly:

(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 that person. [Emphasis added]

89    Pursuant to ss 5, 13 and 14 of the Migration Act an “unlawful non-citizen” included a person who was not an Australian citizen and does not hold a visa that is in effect.

90    Section 196 of the Migration Act provided, relevantly:

(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.

91    It is apparent that the statutory scheme requires a non-citizen whose permanent residency visa has been cancelled under s 501 of the Migration Act, and who challenges the validity of that decision in court, to be kept in detention for the duration of the relevant court proceeding. (See s 196(4) and s 196(5) of the Migration Act).

92    Section 189(1) imposes a duty upon an officer to detain an unlawful non-citizen if he or she knows or reasonably suspects that a person is an unlawful non-citizen. The question, therefore, is whether Mr Fernando could and would otherwise have been detained by an officer performing his or her duty under s 189(1) of Migration Act. That in turn depends upon whether, after the Acting Minister made the decision to cancel Mr Fernando’s permanent residency visa, Mr Fernando was susceptible to being detained in immigration detention by an officer performing his or her duty under s 189(1) of the Migration Act.

93    In my view, Mr Fernando was, from the time that the Acting Minister made the cancellation decision, susceptible to being detained; and could and would have been detained by an officer in the performance of that officer’s duty under s 189(1). This is because the Acting Minister’s visa cancellation decision was a decision which was lawful on its face and, as such, was sufficient to engender in an officer a reasonable suspicion that Mr Fernando was an unlawful non-citizen. It was, indeed, on that basis that an officer, Ms Loralie Lockhart, made the arrangements for the detention of Mr Fernando on his release from Acacia prison.

94    In Fernando (No 2) at [36], I characterised the degree of likelihood that an unlawful non-citizen would be detained by an officer under s 189(1), after the cancellation of that person’s visa under s 501 of the Migration Act, as “highly likely”.

95    In Ruddock (NSWCA), Meagher JA said that it was “inevitable” that an unlawful non-citizen would be detained in those circumstances. At [72], Meagher JA observed:

The first question to be decided is whether either Minister is liable for the tort of wrongful imprisonment. The first reason why this question should be answered in the negative, according to the submissions of the learned Solicitor-General for the Commonwealth, Mr D Bennett QC, is that there is no legal causal nexus between the Ministerial action of cancelling the visa and the officers of the Department detaining Mr Taylor. It is conceded that the detention was the likely result of the cancellation of the visa, and it was its natural and probable result. The Solicitor-General, however, quibbled at the description that it was the “inevitable” result, as her Honour found. I find this disingenuous, and think her Honour was perfectly correct, by cancelling the visa, the Ministers immediately exposed Mr Taylor as an apparent “unlawful non-citizen” within the meaning of s 189, triggering an obligation to detain; they caused the detention, knowing their actions would lead to that result and could not lead to any other result. (Emphasis added.)

96    The Commonwealth drew attention to a difference between some of the United Kingdom decisions on the question of whether a claimant in an action for damages for false imprisonment bore the burden of proving that he or she would not otherwise have lawfully been detained, or whether the respondent bore the burden of showing that the claimant would otherwise have been lawfully detained. However, I accept the Commonwealth’s contention that, because the operation of the Migration Act rendered the detention of Mr Fernando following the cancellation of his visa inevitable or virtually inevitable it does not matter which party bore the burden because the result would be the same.

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.

98    The reality is that Mr Fernando’s position is not akin to that of an innocent man who on spurious grounds has been wrongfully arrested and detained for a crime which he did not commit. Mr Nye was such a man. Mr Fernando, on the other hand, was a man who, once he was convicted of a serious crime, was always liable to have his visa cancelled and, thereafter, to be lawfully detained in immigration detention, notwithstanding a court challenge to the visa cancellation decision.

99    It follows that on the application of ordinary compensatory principles in tort, Mr Fernando did not suffer any loss by reason of his unlawful detention for 1,203 days, which warrants the award of substantial damages. It follows also that Mr Fernando is entitled, therefore, only to nominal damages of $1.00. Mr Fernando should, of course, have all of the costs of this proceeding. I am minded to award those costs on an indemnity basis, but I will hear from the parties on this point.

Aggravated damages

100    In these circumstances, Mr Fernando is not entitled to any aggravated damages.

Exemplary damages

101    Although the Full Court set aside the orders that I made in relation to exemplary damages, it left in place the findings which I made in relation to the question of exemplary damages. Bearing in mind that the Full Court found that Mr Fernando had been unlawfully detained for 1,203 days rather than for one day (as I had originally found), I infer that the Full Court set aside the order for exemplary damages in the sum of $25,000 on the basis that the Court be at liberty to award a different (and possibly larger) amount by way of exemplary damages.

102    As I have mentioned in Fernando (No 2) at [36], the operation of the statutory scheme referred to at [87]-[90] above, dictated that it was highly likely that an unlawful non-citizen whose visa was cancelled under s 501, would be detained pursuant to s 189 of the Migration Act. I had regard to this circumstance in emphasising the importance of the right to procedural fairness within the statutory scheme; and the attendant necessity that this right be scrupulously implemented by the Commonwealth officers and decision-makers who participate in the visa cancellation process. This was a consideration which I took into account in awarding exemplary damages of $25,000 against the Commonwealth. This consideration applies, a fortiori, in light of my finding that, consequent upon the operation of the statutory scheme, Mr Fernando is entitled to no more than nominal damages.

103    However, in my view, the fact that a detainee is entitled only to nominal damages in the event of the detainee being wrongfully detained, does not warrant the award of a greater amount by way of exemplary damages. One of the objects of exemplary damages is to deter conduct which manifests a contumelious disregard for the law and for the rights of others, and, in particular, for the rights of persons vulnerable to the exercise of executive power. In my view, the award of exemplary damages in the amount of $25,000 sufficiently addresses this purpose.

104    It follows that I award Mr Fernando nominal damages in the sum of $1.00 in respect of his claim for wrongful imprisonment. I also award exemplary damages in the sum of $25,000. For the same reasons as applied at trial, the amount of exemplary damages is payable by the Commonwealth only, and not by the then Acting Minister.

substantial damages

105    I now deal with Mr Fernando’s claim on the basis that my findings in respect of the Commonwealth’s argument on nominal damages are wrong.

106    In his particulars of damage, Mr Fernando claimed that by reason of his detention he had suffered loss of liberty for 1,203 days, and that he had suffered anxiety, stress, depression and a permanent exacerbation of his pre-existing psychiatric condition, the loss of employment and educational opportunities and the capacity to earn an income.

107    The major aspect of Mr Fernando’s claim for substantial damages which was argued before me on the remitted hearing was the length of Mr Fernando’s detention. I observe, in passing, that my invitation to counsel for Mr Fernando during closing submissions to submit a memorandum describing the evidence relied upon in respect of each of the particularised items of Mr Fernando’s claims for damages was not taken up.

108    In relation to the question of the length of the detention as a consideration in the award of damages, in Ruddock (NSWCA), Spigelman CJ observed that in assessing damages for false imprisonment, a court did not apply some kind of applicable daily rate by reference to the number of days which a detainee had spent in detention; and that a substantial proportion of the award of damages should be in respect of the initial shock at being arrested.

109    In this regard, in Fernando (No 1) at [132]-[134], I found that the initial shock to Mr Fernando of his detention on 5 October 2003, would have been substantially mitigated by the fact that he had already been detained in Acacia prison, would have known that he was at risk of being detained in immigration detention on his release from Acacia prison; and that these circumstances would have very substantially dissipated the extent of the shock of being detained and the attendant affront to his dignity.

110    It was in the context of assessing damages for false imprisonment where there has been a long period of detention, that Mr Fernando relied upon the cases of Ms Rau and Mr Nye referred to at [29] and [30] above.

111    The reference by Mr Fernando to the case of Ms Rau, however, provided no assistance to the Court. The case was settled. The rationale for the quantum of compensation paid to Ms Rau on account of the lengthy period of her detention was never the subject of any judicial consideration.

112    The Nye case did, however, provide some assistance in relation to the assessment of the quantum of damages in respect of wrongful imprisonment for a lengthy period of time.

113    Mr Nye was arrested in the early morning of 24 July 1991. At that time, Mr Nye was in bed at his home which he occupied with his wife and children. Mr Nye’s home was swarmed by over 40 police officers dressed in black, wearing balaclavas and carrying automatic weapons. When Mr Nye was arrested he was dressed only in his pyjama trousers. He was kept handcuffed and held outside his home on a cold morning. Overhead there hovered a police helicopter carrying a police officer whom Mr Nye, said the court, reasonably concluded was a police marksman. Mr Nye’s wife was also handcuffed by the police during the course of the operation. There was aggressive, loud and coarse language used as well as excessive physical force applied by the police in the process of effecting Mr Nye’s arrest. The circumstances in which Mr Nye was arrested were described by the trial judge, O’Keefe J, as “likely to strike terror into the heart of almost any person”.

114    After his arrest, Mr Nye was detained at a police centre for a day before he was brought before a magistrate and remanded in custody. Thereafter, Mr Nye was detained for a few more days at the police centre before he was transferred to the remand section of Long Bay Gaol. Mr Nye remained in custody for about 16 months at Long Bay Gaol before he was acquitted of a charge of murder and two charges of conspiracy to supply cannabis resin.

115    Mr Nye claimed damages for wrongful imprisonment and malicious prosecution against the New South Wales police and prosecuting authorities. The court found that Mr Nye had been arrested and prosecuted on the basis of information which had been provided to the police by a police informer, that “would have been regarded by a person of ordinary prudence and caution” as fundamentally flawed, made up and unreliable. The court found that the defendants were liable for damages in respect of the wrongful imprisonment of Mr Nye for the day before he was remanded in custody by the magistrate. The court also found that the defendants were liable for the malicious prosecution of Mr Nye, and that damages for detention of Mr Nye after he was remanded in custody by the magistrate, arose from his claim for malicious prosecution.

116    The court found, after hearing evidence from Dr Jonathan Phillips, a consultant psychiatrist, that by reason of his arrest and detention, Mr Nye had developed a psychiatric condition which “fundamentally changed his life for the worse”. The court apportioned the cause of Mr Nye’s psychiatric illness as being 75% attributable to his wrongful arrest and imprisonment, and 25% to the malicious prosecution.

117    The court awarded Mr Nye the total amount of $1.335 million in respect of the two torts.

118    In respect of the tort of wrongful imprisonment, the court awarded damages in the total amount of $387,500. Of that amount, $25,000 was awarded as compensation for Mr Nye’s arrest and the one day of detention before he was taken before a magistrate, $75,000 for the psychiatric injury referred to above, $100,000 for aggravated damages (being 50% of the total amount awarded for aggravated damages) and $187,500 for exemplary damages (being 25% of the total amount awarded in respect of exemplary damages).

119    In respect of the tort of malicious prosecution, the court ordered damages in the total amount of $947,500. Of that amount the court ordered damages in the amount of $100,000 in relation to Mr Nye’s imprisonment for 16 months, $25,000 in respect of the psychiatric injury suffered, and the amount of $160,000 in respect of economic loss and interest thereon. The court also awarded aggravated damages in the amount of $100,000, and exemplary damages in the amount of $562,500.

120    Mr Fernando observed that Mr Nye was awarded a total of $1.335 million in circumstances where Mr Nye had been detained for a period of 476 days, whereas he was detained for 1,203 days; and went on to contend that he should be entitled to a comparable quantum of damages.

121    The circumstances of Mr Nye’s case bear very little resemblance to Mr Fernando’s case. A very substantial proportion of the damages awarded to Mr Nye (totalling $947,500) comprised aggravated and exemplary damages arising from the outrageous conduct of the New South Wales police and prosecuting authorities. However, the Nye case is useful in one respect, namely, that the court was required to consider the quantum of damages to be awarded to Mr Nye in respect of his loss of liberty for a period of some 16 months which he spent in Long Bay Gaol. In so doing, consistently with the approach recognised by Spigelman CJ in Ruddock (NSWCA), the court did not assess damages by application of a daily rate, but awarded Mr Nye the sum of $100,000 in general damages. It is also relevant to observe that in Nye, the court referred to the fact that for a period of time during his detention in Long Bay Gaol, Mr Nye feared for his life at the hands of other inmates of that gaol.

122    Further guidance on the quantum of damages for loss of liberty for a long period arising from wrongful imprisonment can be obtained from the case of Ruddock (NSWCA). In that case at first instance, Taylor v Ruddock (unreported, District Court of New South Wales, Murrell DCJ, 18 December 2002) (Ruddock (NSWDC)) the New South Wales District Court awarded the plaintiff, Mr Taylor, the sum of $116,000 in damages in respect of wrongful imprisonment, consequent upon his detention following the cancellation of his permanent residency visa on character grounds. Mr Taylor was detained for two separate periods. The first period was for 161 days and the second period for 155 days. In that case, because Mr Taylor’s convictions were in relation to sexual offences against children, Mr Taylor was detained in a state prison under a “strict protection” regime, and not in an immigration detention centre. The detention regime to which Mr Taylor was subjected in the state prison was described as a “particularly harsh one”.

123    In the New South Wales Court of Appeal, Spigelman CJ considered the adequacy of the damages of $116,000 awarded to Mr Taylor by reference to the total period of his detention of 316 days. Spigelman CJ observed that the quantum of damages was low, but not so low as to amount to appellable error.

124    As mentioned, the Commonwealth submitted that any award of compensatory damages in respect of the deprivation of liberty consequent upon wrongful imprisonment, should reflect community values and be proportionate to damages awards in personal injury cases.

125    To that end, the Commonwealth referred to a number of judgments in Western Australia where damages had been awarded to persons who had suffered devastating personal injuries.

126    More specifically, the Commonwealth referred to the case of Best (by his next friend Catherine Elizabeth Jordan) v Greengrass [2012] WADC 44, in which the plaintiff, who was injured in a motor vehicle accident, was awarded $297,500 for non-pecuniary loss. In that case, the plaintiff had suffered severe brain damage, had spent three years in hospital and rehabilitation, suffered severe cognitive disability that resulted in a lower IQ and deficits in memory and information processing. The plaintiff also lacked impulse control and was completely deaf in one ear and lacked peripheral vision. A statutory cap of $350,000 for an award of general damages under the Motor Vehicle (Third Party Insurance) Act 1943 (WA) applied in that case. The plaintiff’s award of damages represented 85% of a most extreme case.

127    The Commonwealth also referred to Wall v Cooper [2008] WASCA 53. In that case, the plaintiff was a leading specialist paediatrician, suffered from a pain syndrome as a result of defective surgery. The pain syndrome had a devastating effect on his life and career. He lives a limited existence and is dependent on heavy doses of morphine based painkillers. The plaintiff was awarded general damages of $450,000. This case did not invoke a statutory cap.

128    In my view, there is substance in the Commonwealth’s contention that a rational relationship should exist between, on the one hand, the amount of the 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 (Carson v John Fairfax & Sons Limited (1993) 178 CLR 44).

129    As to his claim that he suffered anxiety, stress, depression and a permanent exacerbation of his pre-existing psychiatric condition, Mr Fernando did not call any expert evidence in support of his claim that the detention caused a permanent exacerbation of his pre-existing psychiatric condition. This is in contrast to the expert psychiatric evidence which was led both in Nye and Ruddock (NSWDC). In the absence of any expert evidence in support of this contention, I decline to make any finding in support of that pleaded particular of damage.

130    However, I accept Mr Fernando’s evidence that he suffered anxiety and stress during the period of detention and, also, that he was treated for depression during and after his period of detention. I take these factors into account in the quantum of general damages to be awarded.

131    Mr Fernando also claimed that by reason of his detention he had lost employment and educational opportunities and the capacity to earn an income. In my view, Mr Fernando did not adduce evidence of sufficient probative value as to permit the Court to make a specific award of damages attributable to this claim.

132    From the evidence Mr Fernando gave in relation to the loss of educational opportunity, the following appears to be the position. In 1993, Mr Fernando enrolled at Edith Cowan University in a mathematics teaching course leading to the degree of Bachelor of Arts. However, in 1995, Mr Fernando also enrolled in a Bachelor of Science degree at Monash University and passed some units as part of that degree course. It appears that at some time after 1993, I do not know precisely when, Mr Fernando gave up his enrolment in his Bachelor of Arts degree at Edith Cowan University and enrolled for a degree in Bachelor of Science at that University. While Mr Fernando was in prison he continued to study for the Monash University degree course and he also took some examinations. As I understand Mr Fernando’s evidence, when he went into immigration detention, he had completed the major mathematical component of his degree at Edith Cowan University and was still required to complete four elective units in order to qualify for the Bachelor of Science degree.

133    Mr Fernando said that the conditions for study in Acacia prison towards the end of his sentence were superior to the conditions in immigration detention because in prison he was able to use computer internet access in order to do some of the experiments which were required for his course work, but he was denied the same internet access during the period that he spent in immigration detention.

134    Mr Fernando did not, however, state whether he had passed any of the examinations which he had sat for the Monash University units whilst in prison. Nor was the position in relation to the crediting of his Monash University units by Edith Cowan University made clear. His evidence appeared to go no further than that he had applied for the units to be credited. Further, Mr Fernando’s evidence was that since being released from immigration detention he has not passed any of the four elective units which he said remained outstanding in respect of his degree.

135    As to the question of the loss of employment, the evidence of Mr Fernando was that prior to his conviction on three counts of sexual penetration without consent, he had tutored students who were sitting for their high school examinations. He said that following his release from immigration detention, as a convicted sexual offender, he was not able to pursue that avenue of part-time employment. Mr Fernando also deposed that since being released from immigration detention he has had a succession of jobs and at the time of the trial was undertaking a Centrelink business development course.

136    This evidence, as I have said, does not permit the Court to make any award of damages as compensation in respect of any specific and demonstrable loss of educational or employment opportunities and the capacity to earn income. As to the past employment to which Mr Fernando deposed, the fact that Mr Fernando was not able to continue with his part-time tutorial employment was attributable to his conviction for sexual penetration without consent, and not his immigration detention.

137    Further, Mr Fernando’s evidence does not permit a finding that the failure to complete the Bachelor of Science degree is attributable to immigration detention. This is because, since his release Mr Fernando has had the opportunity to complete the degree but has failed to do so. One reason given by Mr Fernando is that he has not been able to afford the applicable fees. In this regard, I also observe that Mr Fernando did not call any expert medical evidence to the effect that he has not been able to complete those units by reason of any condition attributable to his detention. However, I recognise that as an incident of his being detained, Mr Fernando was for a period of 1,203 days, deprived of the opportunity of pursuing his ordinary life, that would have included the opportunity to pursue further study, and the opportunity to earn income. I will take this circumstance into account in awarding general damages.

138    Although Mr Fernando deposed at a high level of generality, that he felt more safe in prison than in immigration detention, Mr Fernando’s evidence did not suggest that in immigration detention he was subjected to the harsh “strict protection” regime to which Mr Taylor was subjected in state prison during his periods of detention, nor that Mr Fernando feared for his life at the hands of inmates in the same way that Mr Nye did whilst he was detained in Long Bay Gaol.

139    Taking all of these considerations into account, I would have awarded Mr Fernando in respect of his 1,203 days in detention the amount of $265,000.

Aggravated damages

140    Mr Fernando also claimed that he was entitled to aggravated damages.

141    In response to Mr Fernando’s submissions, the Commonwealth made the preliminary objection that Mr Fernando had not particularised his claim for aggravated damages and should, therefore, be precluded from advancing his case on aggravated damages. This objection was not, however, strongly pressed by the Commonwealth during its oral submissions. The objection is rejected because aggravated damages was the subject of Mr Fernando’s opening and closing submissions at trial and no objection was then taken by the Commonwealth, either to the form of the pleading or to the fact that Mr Fernando had in opening and closing made submissions on that issue.

142    Mr Fernando contended that aggravated damages may be assessed by reference to the conduct of the Commonwealth up to the time of judgment, and that by reason of the following factors, the Court should award Mr Fernando aggravated damages.

143    First, said Mr Fernando, the circumstances in which the immigration detention was effected were so high-handed as to give rise to aggravated damages. Mr Fernando said that he was detained shortly after he had successfully challenged a prior cancellation of his permanent residency visa, had commenced proceedings in this Court in relation to the threat to cancel his visa for a second time, and had sent to the office of the Acting Minister detailed submissions contending that his visa should not be cancelled.

144    I reject the contention that there should be an award of aggravated damages in relation to the circumstances in which Mr Fernando was detained. In Fernando (No 1) at [131]-[134], I found that the circumstances in which Mr Fernando had been arrested did not give rise to a basis for the award of aggravated damages. There was no evidence to suggest that the manner in which Mr Fernando was arrested subjected him to indignity or humiliation of the kind that could give rise to an award of aggravated damages. Mr Fernando was not arrested in public. He was taken into immigration detention at Acacia prison in circumstances which Mr Fernando would have anticipated in any event. The findings I made to this effect were not disturbed on appeal.

145    Further, in my view, the fact that Mr Fernando was detained, notwithstanding that he had engaged in the conduct referred to in [143] above, does not change the position. As I have previously mentioned, once the Acting Minister had made the visa cancellation decision, it was inevitable or almost inevitable, that Mr Fernando would be taken into immigration detention, notwithstanding that he had a proceeding on foot in this Court, and he had submitted his submissions. This is because s 189(1) of the Migration Act imposed a duty on officers to detain Mr Fernando in those circumstances.

146    Secondly, Mr Fernando contended that the conduct of the Commonwealth was particularly reprehensible because the Commonwealth had continued to detain Mr Fernando for a long period of time even after his submissions had arrived, and in the knowledge that the basis for his detention, namely, the cancellation of his visa, was under legal challenge. Also, said Mr Fernando, there was no evidence that any consideration was given to releasing him on a bridging visa pending the determination of his application for judicial review. The Commonwealth’s conduct in continuing to detain him in those circumstances, said Mr Fernando, engendered in him an increasing sense of outrage.

147    In my view, the fact that the Commonwealth, through its officers, continued to detain Mr Fernando in immigration detention whilst his judicial review application was before the Court, and that no consideration was given to issuing to him a bridging visa, is not a circumstance which gives rise to an award of aggravated damages. As previously mentioned, s 196 of the Migration Act requires that a non-citizen whose visa has been cancelled under s 501 of the Migration Act remain in detention whilst any challenge to the visa cancellation decision is determined by a court. Accordingly, in continuing to detain Mr Fernando during the period that his litigation was on foot, the Commonwealth, by its officers acted in accordance with the dictates of the Migration Act.

148    As to Mr Fernando’s complaint that no consideration was given to his submissions after they had been received by the Minister’s office, the complaint goes no where. The arrival of the submissions did not affect the position in relation to s 196 referred to in the preceding paragraph. Further, no party addressed the question of whether the content of Mr Fernando’s submissions would have made any difference to the decision to cancel Mr Fernando’s visa.

149    Thirdly, Mr Fernando contended that he was subjected to public humiliation when he was taken to an appointment at a medical centre in Belmont, Western Australia, restrained in handcuffs by the detention centre guards. The Commonwealth did not dispute Mr Fernando’s evidence in relation to this incident. Nor did the Commonwealth give evidence seeking to justify the guards’ action in taking Mr Fernando to the medical appointment in handcuffs. However, Mr Fernando also deposed that he had complained about the use of handcuffs, and that, he was not handcuffed at any time thereafter. The Commonwealth contended that this was a one-off incident which did not warrant an award of aggravated damages. I have given earnest consideration to this issue. The application of handcuffs by a person with power over another person and the public exposure of the handcuffed person is a humiliating experience and a serious affront to the human dignity of the person handcuffed. Of course there are many circumstances in which such conduct is justified. This is particularly the case when the handcuffed person constitutes a risk to the safety and security of the public. There may be other reasons when the affront to the human dignity of the handcuffed person may be justified. However, the difficulty for the Commonwealth in this case is that it led no evidence in support of a contention that the guards were justified in using handcuffs on Mr Fernando and exposing him in that state to the public at a medical centre. In those circumstances, I am of the view, that this conduct was an unjustifiable high-handed exercise of power which constituted an affront to the dignity of Mr Fernando over and above the humiliation and affront to his dignity suffered by reason of his detention in any event. I, therefore, would have awarded Mr Fernando the sum of $750 by way of aggravated damages.

150    Fourthly, said Mr Fernando, the Commonwealth had not expressed regret for his detention. Mr Fernando said that the failure by the Commonwealth and the Acting Minister to offer an apology to Mr Fernando could not be regarded as an oversight, but was rather an “obdurate refusal reflective of the insolence of office”. Mr Fernando said that the failure by the Commonwealth to offer an apology to him merited a substantial award by way of aggravated damages having regard to the length of time since he was released from immigration detention. This, said Mr Fernando, reflected the fact that the Commonwealth and the former Acting Minister still did not admit any wrongdoing.

151    In my view, the failure by the Commonwealth and the Acting Minister to provide an apology to Mr Fernando is not a circumstance which would give rise to an award of aggravated damages.

152    The rule of law is a fundamental value of Australian society. It is to the law that members of society, vulnerable to the exercise of executive power, look for protection from excesses in the exercise of that power. It is, therefore, a serious matter, when those with charged with the exercise of executive power act in contumelious disregard of the law.

153    It is for that reason that the Court has, and would have, ordered indemnity costs. In my view, that is the appropriate way whereby complaints of the nature that Mr Fernando makes, are to be met; and not through the process of a personal apology directed only to Mr Fernando. Although this is not the purpose of the award of indemnity costs, the effect of such an award would be that Mr Fernando would obtain a means of salving the grievance which he has expressed.

154    Fifthly, Mr Fernando contended that the conduct of the defence by the Commonwealth had been improper and this warranted an award of aggravated damages.

155    In support of this contention, Mr Fernando said that the legal practitioners representing the Commonwealth had provided a certificate in support of the further amended defence for which there was no basis. It was also said that the Commonwealth’s legal practitioners had sought a lengthy adjournment for the purpose of filing voluminous affidavits that were never filed. Further, said Mr Fernando, the Commonwealth had made an unsustainable plea that Mr Fernando’s detention was justified.

156    There is no substance in Mr Fernando’s contention that the conduct complained of, gives rise to an award of aggravated damages. It is the case that the Commonwealth did not conduct as disciplined and organised a case, as it could have done. In particular, it was regrettable that it did not plea in its defence, the defences which it relied upon at trial. However, this circumstance, as well as the other matters complained of, do not warrant an award of aggravated damages to Mr Fernando. These are matters to be dealt with by way of appropriate costs orders.

157    Mr Fernando also referred to the fact that the Commonwealth had during the course of the interlocutory process, refused to undertake that it would not seek to enforce any costs orders in its favour, against Mr Ley, Mr Fernando’s pro bono tutor for this application. Mr Ley was then forced to approach the Court for relief, which the Court granted (Fernando v Minister for Immigration and Citizenship (No 9) [2009] FCA 833). This conduct was oppressive and intended to stultify the litigation, said Mr Fernando, and should result in an award of aggravated damages. In my view, the conduct complained of was regrettable, particularly in light of the expectation that the Commonwealth would act as a “model litigant”, and the fact that Mr Ley’s intervention had substantially reduced the scope of the litigation to the benefit of both the Court and the Commonwealth. However, in my view, it is more appropriate to characterise that conduct as a serious, but isolated, misjudgment, compensable by a costs order, rather than as an episode which would give rise to an award of aggravated damages.

Exemplary damages

158    For the reasons stated in Fernando (No 2), I would have awarded exemplary damages in the sum of $25,000.

Associate:

Dated:    6 September 2013