Lewis v The Australian Capital Territory [2020] HCATrans 67 (2 June 2020)

Last Updated: 3 June 2020

[2020] HCATrans 067

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C14 of 2019

B e t w e e n -

STEVEN JAMES LEWIS

Appellant

and

THE AUSTRALIAN CAPITAL TERRITORY

Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE AND MELBOURNE

ON TUESDAY, 2 JUNE 2020, AT 10.01 AM

Copyright in the High Court of Australia
KIEFEL CJ: It will be obvious from the screens that Justice Gageler and I are sitting in Canberra, Justices Keane and Edelman in Brisbane, and Justice Gordon in Melbourne. We have Mr Herzfeld appearing for the appellant in Sydney, the Solicitor‑General for the Australian Capital Territory in Canberra, with us, and the Solicitor‑General for the Commonwealth, presently unobserved, in the Melbourne courtroom, but we are hoping we can fix that connection a little later.

MR P.D. HERZFELD: May it please the Court, I appear with MR P.A. TIERNEY for the appellant. (instructed by Ken Cush & Associates)

MR P.J.F. GARRISSON, SC, Solicitor‑General of the Australian Capital Territory: May it please the Court, I appear with MS H. YOUNAN for the Australian Capital Territory. (instructed by the ACT Government Solicitor)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia: May it please your Honours, if you can hear me, I appear with MR C.J. TRAN for the Commonwealth, intervening. (instructed by the Australian Government Solicitor)

KIEFEL CJ: Yes, we can hear you, Mr Solicitor; thank you. I think the parties are aware that the Court will be taking a 15‑minute break at 11.15. Yes, Mr Herzfeld.

MR HERZFELD: Thank you, your Honour. I have been told I need to project because, although there is a microphone in front of me, it is not live. So I will seek to project to the more distant microphone and hopefully my volume is both audible for those of your Honours that can hear me and not deafening for others of your Honours.

KIEFEL CJ: We can hear you very clearly, thank you. You do not need to speak too loudly.

MR HERZFELD: Thank you, your Honour; I will do my best. Your Honours should have our oral outline.

KIEFEL CJ: Yes.

MR HERZFELD: Your Honours will see in that outline the structure that I propose to adopt for oral submissions. Points 2 to 10 of that outline deal with the first broad question in the appeal – that is, where a plaintiff is unlawfully imprisoned by a defendant, can the plaintiff recover substantial compensatory damages if, but for the unlawful imprisonment, the plaintiff would have been lawfully imprisoned by the defendant?

KIEFEL CJ: At the outset, Mr Herzfeld, could you identify for us what you say is the tortious conduct, the wrong?

MR HERZFELD: Yes. The tortious conduct was the imprisonment of the appellant contrary to law.

KIEFEL CJ: That was the result of tortious conduct. Is there not tortious conduct which precedes the effective imprisonment?

MR HERZFELD: Well, the act of imprisoning the appellant in a manner that was not authorised by the sentence of the Magistrates Court is the tort. The cause of that tort was the procedural defect, with the decision of the Sentencing Board, but the tort was the wrongful imprisonment.

EDELMAN J: So you accept that the legal elements of the tort are constituted by an imprisonment without justification?

MR HERZFELD: Yes, your Honour.

EDELMAN J: And therefore why would one not say that the acts which establish imprisonment without justification are the act of imprisoning Mr Lewis with a denial of procedural fairness that would otherwise have constituted justification?

MR HERZFELD: Your Honour, that is factually what caused the imprisonment without justification. But the tort itself, however it came about, was constituted by the imprisonment without justification.

GORDON J: Does that not go to a finding of liability and then the consequence of it, which is what Justice Edelman is putting to you? The first question is the liability that is established by the tort. The question then is what is the loss? What is the act that caused the loss and what is the loss?

MR HERZFELD: Yes. The loss, we will say, as I will come onto, is the infringement of the appellant’s right not to be imprisoned contrary to law. I know I need to develop that and I will develop that. That is the point that we are seeking to make in paragraphs 2 to 10 of the outline and I understand I need to develop that. The other way, quite separately that we seek to recover a substantial amount is set out in paragraphs 11 to 13 of the outline and it deals separately with the topic of vindicatory damages.

GAGELER J: Mr Herzfeld, at paragraph 82 of Justice Refshauge’s judgment in the first sentence, he says:

The cause of the imprisonment was the decision of the Board to cancel the periodic detention order –

Is that the correct starting point?

MR HERZFELD: It might depend on how one wants to approach it. In terms of the starting point, factually that is correct.

GAGELER J: Do we then get to the liability of the Territory as being the liability that is substituted by section 179(3) of the Sentence Administration Act for the tortious liability of the Board?

MR HERZFELD: Yes. That topic was not explored very – well, really at all – because, as your Honour will see, paragraph 37 of the primary judge’s reasons, that first question, the question of vicarious liability, if I can put it broadly, was really not in contest. So, precisely whose liability – or, precisely who was personally liable for false imprisonment and how that liability was vicariously attributed to the Territory really did not feature in the decisions below.

GAGELER J: It makes a difference to the counterfactual analysis that one identifies with some precision what the factual basis for the tort is. If the factual basis for the tort is a decision of the Board which is invalid, then the counterfactual analysis might proceed by examining what the position would have been in the absence of an invalid decision of the Board.

MR HERZFELD: Yes, though it is put against us that the counterfactual would not be no decision of the Board, it would inevitably be a valid decision of the Board and having regard to the way in which the grounds of appeal for which special leave has been granted to this Court, we are prepared to meet the case on the premise that valid – on the premise that detention of this appellant was the inevitable consequence of the operation of the act on the facts.

GAGELER J: The act being the decision of the Board?

MR HERZFELD: I am sorry, I used “act” badly - the legislation on the facts. Can I turn then to that first question of substantial compensatory damages and that question of course involves, among other things, whether this Court should follow the decision of the Supreme Court of the UK in Lumba.

Now, it is, we think, common ground that the decision of this Court in CPCF does not resolve this issue. I will turn to CPCF in a little more detail later, so it is not necessary for your Honours to turn to it yet, but we do emphasise at the outset that while the Commonwealth in CPCF relied on Lumba, the plaintiff in CPCF did not challenge its correctness. Rather, the plaintiff in CPCF only sought to distinguish it on the facts. So, the question at the heart of this case was simply not in issue in CPCF and for that reason we seek to address the question at the level of principle and then I will come back to the relevant passages in CPCF.

At the level of principle, the first way in which we put the case for substantial compensatory damages is dealt with at points 2 to 6 of our oral outline. In short, we submit that the appellant is entitled to be compensated for the infringement of his right not to be imprisoned otherwise than in accordance with law.

Now, before coming to why infringement of that right leads to substantial compensatory damages can we respond to a submission put against us that the appellant did not have such a right. It is trite that unless the imprisonment of the appellant was authorised by law he had a right not to be imprisoned. The Magistrates Court sentenced the appellant pursuant to orders, which your Honours can see set out in the appeal book at page 104 in the reasons of the Court of Appeal at paragraph 32, quoting an agreed statement of facts. In that agreed statement of facts at point 2, the orders of the Magistrates Court are set out. The order there made for periodic detention starting on 25 January - it was a Friday - with a first reporting time of 7.00 pm at Symonston Periodic Detention Centre, that order engaged ‑ ‑ ‑

KIEFEL CJ: I am sorry, Mr Herzfeld, where are you reading from?

MR HERZFELD: I am so sorry, your Honours, it is page 104 of the appeal book, in the reasons of the Court of Appeal at paragraph 32 of the Court of Appeal’s reasons.

KIEFEL CJ: Thank you.

MR HERZFELD: Your Honours will see that sets out an agreed statement of facts, and point 2 of that agreed statement of facts quoted the magistrate’s order. Now, that order engaged the provisions for periodic detention in Chapter 5 of the Crimes (Sentence Administration) Act, as it then stood.

KIEFEL CJ: But it also sentenced him to a total term of imprisonment, which was extant at the time, that he was later taken into custody.

MR HERZFELD: It did.

KIEFEL CJ: Is that not a matter you have to deal with? I mean, he was subject to a term of imprisonment at the time you say the tortious act arose.

MR HERZFELD: That is so, but the sentence provided for that term of imprisonment to be served only by periodic detention, that is, in substance, weekends, from Friday 7.00 pm to 4.30 on the Sunday at that specified place, and unless and until that aspect of the order was varied in accordance with the legislation, the legislation and the order authorised only detention at weekends and at that place.

KIEFEL CJ: Well, that is in a narrower compass. In the broader compass the term of imprisonment subjected him to the operation of the Crimes (Sentence Administration) Act and all of the legal requirements there, failure upon which resulted in his automatic imprisonment. I mean, he is subject to a regime which could negate the periodic detention as an alternative to custodial sentence.

MR HERZFELD: If and only if there was a decision of the Board which was valid. That was the conclusion of the primary judge which has not been challenged in this Court, and so what your Honour puts to me that the appellant was subject to the regime is quite true, but an aspect of that regime was that before he could be detained full time there must be a valid decision of the Board, and because there was not a valid decision of the Board his imprisonment full time, after the invalid decision of the Board, was tortious. That is the very nature of the primary judge’s finding which, as I say, has not been challenged.

KIEFEL CJ: But accepting, since there is no dispute about accepting that there was a denial of procedural fairness, had there not been a denial of procedural fairness the Board would have been obliged – it had no choice but to imprison him.

MR HERZFELD: We accept that. But that is not what in fact occurred and that is why there was a tort committed and so at the level of principle all I am doing at this stage is the first step ‑ ‑ ‑

KIEFEL CJ: Yes.

MR HERZFELD: There was in fact – I am so sorry your Honour Chief Justice I think I cut you off.

KIEFEL CJ: No, no, I was only commenting.

MR HERZFELD: At the first stage all I am seeking to establish was that there was an infringement of the appellant’s right not to be imprisoned otherwise than in accordance in law. That necessarily follows from the primary judge’s conclusion that the imprisonment was tortious. The contrary argument which has been put in substance seeks to unpick the un‑appealed finding – or rather conclusion of the primary judge that the imprisonment was tortious and it really seeks to replicate an argument which was put to the primary judge and rejected by the primary judge.

Your Honours will see that in the appeal book starting on page 29, from paragraph 135 over to page 31 at paragraph 156, his Honour dealt with an argument that the original sentence authorised subsequent imprisonment so that there was in fact no tort and his Honour rejected that for essentially the same reasons that we contest the submission put that the appellant had no right which was infringed.

The appellant had a right to be imprisoned only at weekends and only at a place specified by the Magistrates Court unless and until that sentence was varied in accordance with the regime under the legislation, which it was not. It is not, with respect to the submission against us - it is not an answer to say that had the Board’s decision been valid the appellant could or even would inevitably have been subject lawfully to full‑time imprisonment. That counterfactual statement does not change the reality that the appellant was not lawfully imprisoned and that is why there was a tort committed and also why necessarily there was a right infringed.

Now, in our submission, that infringement of rights is not only sufficient to complete the tort, but it is also sufficient to give rise to substantial, that is, more than nominal, compensatory damages. Can I take your Honours to a number of authorities that in our submission demonstrate that to be so?

EDELMAN J: Mr Herzfeld, this submission, where it is going as I apprehend it is to say that the consequences of imprisonment are irrelevant. The only question is whether there has been a right that has been infringed and once there has been a right that is infringed there is no need for a further examination of causation of consequences. One is entitled automatically to a substantial award of damages.

MR HERZFELD: It is a substantial award of damages for that infringement. Consequences may be relevant if what one is seeking is damages of another kind. So, for example, if one was seeking consequential economic loss, a form of special damage, then it would be necessary to consider the consequences. But where one is seeking compensation only for the infringement of the right, then a further analysis of consequences or counterfactual cannot change the fact that there has been an infringement of the right, which ‑ ‑ ‑

EDELMAN J: So why would the law ever award nominal damages?

MR HERZFELD: It will depend, for instance, on whether there has been a right which is infringed which is sufficiently valuable or important to receive substantial compensation. So to take a different example, mere breach of a contractual right we would not put in this category. So, for instance, we do not embrace – and negligence might be a similar example. We do not embrace fully all aspects of Professor Stevens’ conception of torts as all being about infringement of rights. We have a more modest goal of ‑ ‑ ‑

EDELMAN J: So there would never be an award of nominal damages for false imprisonment?

MR HERZFELD: That is so.

EDELMAN J: Or trespass?

MR HERZFELD: That is so. There might be a small award.

EDELMAN J: So the hundreds and hundreds of cases that have awarded nominal damages in those cases are all wrong?

MR HERZFELD: Well, one has to be a bit careful, because quite a lot of those cases actually – although there was a description of nominal damages, what one actually sees is rather small damages for potentially trifling trespass. But in terms of false imprisonment, for example, in our submission it is not the case that there are many cases awarding nominal damages. In fact, prior to Lumba, it in fact appears that there was no such authority, at least none that has been identified by any of the parties before this Court. But we do accept that the consequence of this submission is that if there is an infringement of the right to liberty, it is not met with an award of nominal damages.

Can I seek to develop how that is consistent with authority? Could your Honours go to this Court’s decision in Plenty v Dillon [1991] HCA 5; 171 CLR 635, please. Your Honours will find that in volume 3 of the joint book of authorities at tab 13, page 796. As your Honours will know, the case concerned trespass to land by a police constable seeking to serve a summons. Your Honours can see from the summary of the facts down the bottom of CLR page 638 that before this Court the facts were of an alleged unlawful entry with no further damage to land, injury to person.

The principal issue before the Court was whether the constables had a lawful excuse and that was rejected in the discussion of Chief Justice Mason and Justices Brennan and Toohey in the discussion culminating on page 645. But in the first full paragraph of that page, their Honours then turn to the question of damages and their Honours noted that since the:

entry was wrongful . . . the plaintiff is entitled to judgment and an award of some damages.

GORDON J: Were damages argued in the case?

MR HERZFELD: No, they were not argued. This was evidently statements made by each member of the Court to guide what was to happen on the remittal in light of what had happened at the trial, which is noted a little bit further down the page. The primary judge had said that:

even if a trespass had occurred, the trespass was of such a trifling nature as not to “found” –

read “sound” –

in damages.”

Their Honours were evidently seeking to make clear that that was not a suitable approach on the remittal. So, their Honours said an award of some damages contrasted the primary judge’s view, and continued:

But this is an action in trespass not in case and the plaintiff is entitled to some damages in vindication of his right to exclude the defendants from his farm.

Now, in context where their Honours were rejecting the trial judge’s view, in our submission it is evident that their Honours reference to “some damages” was not nominal damages. That is even clearer in the joint reasons of Justice Gaudron and Justice McHugh. If your Honours turn, please, to CLR page 654, in the last full paragraph on that page their Honours again quoted the trial judge’s view and then their Honours explained the reason for rejecting that view in a discussion that goes over the page.

Can we emphasise from that discussion three things? First, their Honours’ explanation from the bottom of page 654 over to the top of page 655 that the purpose of the action is not merely to compensate for damage to the land but to vindicate the “plaintiff’s right to the exclusive use and occupation of his or her land”. Secondly, a bit lower down that paragraph can we emphasise their Honours’ emphasis on the need for the common law to give “effective remedies” and then, finally, their Honours’ unequivocal statement at the end of that paragraph that:

The appellant is entitled to have his right of property vindicated by a substantial award of damages.

EDELMAN J: Do you say that this decision then stands for the proposition that independently of any consequences experienced by the plaintiff, a substantial award of damages was available for the trespass?

MR HERZFELD: Subject to the fact that we would say that the infringement of the right is itself a consequence experienced by the plaintiff, subject to that caveat, yes, we do say that is what the case is.

EDELMAN J: How would that substantial damages be calculated?

MR HERZFELD: Yes, and so there are different ways that it can be calculated and I will come on in a moment to some of the use cases which show that it can, in that context, be calculated by the reasonable rent for the land. That is in the specific “trespass to land” context. But I accept that that is a different context to the present one and I will need to establish how it translates to the present context.

GORDON J: Do you not have at least a couple of problems with Plenty v Dillon? The first is that in Plenty there is not the same inevitability that we have here in this case. The second is that there was real loss identified by an award, the subject of damage, including depressive illness and the like which is set out in, I think very helpfully, the Commonwealth’s submission and the third is that it focuses its mind, as it must – as the passage that you have just taken us to – to effective remedies to meet the loss. Here, in Mr Lewis’ case, the question is.....is not the declaration, as was discussed in Lumba, and nominal damages sufficient to meet the loss that has been identified – even if the loss is the right that you ‑ ‑ ‑

MR HERZFELD: Can I respond to your Honours three point about Plenty v Dillon? The first is we accept of course it does not deal with the – if I can call it the inevitability point, to use your Honour’s language. We are not seeking to rely on it for that proposition. We are seeking to rely on it only for the proposition that substantial damages can go for an infringement to the right.

The second point is that although ultimately there was evidence about personal injury and the damages award was made for depressive illness, none of that is before the Court when it is giving its reasons in Plenty v Dillon. As I sought to emphasise, the only facts referred to in the reasons of the Court were about the wrongful entry to land. There are no facts at all about depressive illness. So, their Honours cannot have been referring to that in what their Honours were saying about substantial damage.

The third point is we accept that it is necessary to deal with the proposition that compensation goes only for loss. However, what we say Plenty v Dillon begins to show is that “loss” is broad enough to encompass infringement of a right.

KIEFEL CJ: Mr Herzfeld, in Plenty v Dillon Justices Gaudron and McHugh, towards the top of page 655, suggest that the entry of the police officers against the appellant was likely to cause him distress. It is those kinds of factors which would lead to compensatory damages, both for trespass and, in the context of unlawful arrest it would be distress, loss of reputation, injury to feelings – all of those things. That is what their Honours are identifying.

MR HERZFELD: With respect, in our submission, the passages that I have taken your Honours to showed that their Honours were speaking of substantial damages for infringement of the right.

KIEFEL CJ: Yes, the consequence is what the loss to him was and their Honours appear to be identifying that for the purpose of the court below on remitter. They are identifying that what would follow a matter such as distress, which might feed into the substantial award of damages.

MR HERZFELD: Undoubtedly that would feed into the substantial award of damages but, in our submission, their Honours’ reasons are not limited to that. Their Honours reasons, when read fairly, in our submission, do accept substantial compensation to vindicate the right for infringement of the right. In our submission Plenty v Dillon is not alone in that respect. We have sought to identify in paragraph 35 of our written submissions various other cases which can be understood as providing compensation for infringement of a right and which, therefore, eschew any kind of counterfactual analysis of the kind adopted in the courts below. Can I elaborate on ‑ ‑ ‑

GAGELER J: Mr Herzfeld, can I just ask - this part of your argument, which is the first argument in your outline of submissions, from paragraphs 2 to 6, does it eschew any form of counterfactual analysis, counterfactual analysis just has nothing to do with it? Is that the way the argument goes?

MR HERZFELD: Yes. For compensation for the infringement of the right, and the reason for that is that a counterfactual analysis where one is dealing with what would have occurred if there was no infringement of the right just cannot be an answer to that. So take this case as an example. On the counterfactual here, which is posited, the appellant would have been lawfully imprisoned. On what actually happened he was unlawfully imprisoned, and we say his right was infringed.

So there is a difference between what actually happened and the counterfactual. On what actually happened his right was infringed and on the counterfactual his right would not have been infringed. So a counterfactual analysis cannot be an answer to compensation for infringement of the right.

As I sought to make clear, I think in my answer to Justice Edelman’s questions, obviously if one is dealing with consequential economic loss, for example, one might be in quite a different category. All we are seeking is compensation for the infringement of the right and that just ‑ ‑ ‑

EDELMAN J: The way you express this first proposition is almost identical to the way a number of commentators have expressed what they call “vindicatory damages”. Is there any difference between your first submission and what I think is going to be your third?

MR HERZFELD: Yes, because on our first submission we do not need this Court to invent a new head of damages not recognised in this country previously and that is because, in our submission, it can be fitted comfortably within the compensatory principle. That said we accept that similar kinds of notions underlie the third submission, which is why I can be briefer about it. Your Honour Justice Gordon, I think, was going to ask me a question.

GORDON J: No, other than to make the point that you kept talking about the compensation, and we have known since the beginning that the compensatory principle requires the identification of loss.

MR HERZFELD: Yes.

GORDON J: You went back to, in effect, the premise from which you start.

MR HERZFELD: Can I seek to deal with that immediately by reference to what the Privy Council said in Inverugie Investments, which is in the joint book of authorities at volume 4, tab 36, page 1445, or in [1995] 1 WLR 713. This category of case demonstrates that the occupier of land can obtain damages against a trespasser who uses the land, regardless of whether, but for the trespass, the occupier would have used the property.

If your Honours please turn to page 717 of the report, Lord Lloyd, giving the advice of the Privy Council from letter F over the page to A, claims very clearly the applicable principles, and we draw attention to two points in that analysis. The first is that the plaintiff recovers damages, substantial damages, for loss of the right to use the property even if, but for the tort, the plaintiff would not have used the property. Secondly, this is not an exception to the compensatory principle that damages in tort are to compensate for loss, because as Lord Lloyd explains at the bottom of page 717, it really does depend on:

how widely one defines the “loss” which the plaintiff has suffered.

The loss being compensated is, in our submission, the infringement of the plaintiff’s right to use land as the plaintiff sees fit.

KIEFEL CJ: Mr Herzfeld, the Privy Council appear to be - the advice appears to be concerned, in the passages you have referred us to, to a consideration of what is loss and if one goes over to page 718 at B a distinction seems to be between actual loss and the recovery of reasonable rent. Is that a real distinction? I mean the loss of what might have been recovered by way of rent is actual loss, is it not?

MR HERZFELD: Well, it is not actual loss in the ordinary sense in the case where the plaintiff would never have rented the land. That is why these cases are a little anomalous and why the explanation, in our submission, has to be that the loss that is being compensated is the infringement of the right.

EDELMAN J: In Inverugie the plaintiff would have rented the land but would have suffered a huge financial loss because the expenses would have been far greater than the income. So, in a way the trespass did him a favour.

MR HERZFELD: That is so, but that is another reason why it is not loss in an ordinary “but for” analysis. The explanation - unless the explanation is restitutionary damages - and I will come on to that because that is a position that we apprehend the Commonwealth seeks to advance. The explanation, in our submission, is that compensation is going for the infringement of the right and that is being valued – that right is being valued – by the notional rent.

EDELMAN J: But the difficulty with this line of cases – and there are many cases like this that talk about a reasonable rent or mean profits for the use of land or goods – there are no cases which talk about a reasonable rent for the use of someone’s liberty. There is a very big difference, is there not, between the use of someone’s asset and the violation of their rights per se?

MR HERZFELD: I accept that and it would therefore be extraordinary that one can get compensation for the use of land but not compensation for the infringement of the right to liberty. I will come on to why we say that these cases are not limited to the land context. But so far, what Inverugie demonstrates is two things: one, one can get compensation for infringement of a right; and, two, that is not a violation of the compensatory principle because that infringement of the right is itself loss. We would therefore embrace what your Honour Justice Gageler recently said in the Smethurst decision at paragraphs 120 to 121 that:

The gist of a common law cause of action for trespass . . . is “the wrong to the right to possession” –

and the common law compensates for the infringement of that right and because of that it is no answer in these land cases to say that but for the tort the plaintiff would not have used the land in any event. To say that does not deny that the right to possession was infringed.

The same kind of analysis can be seen in the kind of case to which Lord Lloyd was referring in his Lordship’s reference in that passage to the Mediana – these are goods cases – and those cases show that the owner of goods can obtain substantial damages for the infringement of the right to use goods even where the owner has suffered no other loss, and his Lordship’s reference to the Earl of Halsbury’s famous example of a chair – all that the owner of the chair is deprived of is the right to use the chair. Substantial compensatory damages go, even if the owner would not, but for the tort, have used the chair. They go even if ‑ ‑ ‑

GORDON J: .....analysis, Mr Herzfeld, so if you take that same sort of analogy, yes, he had lost the right to use the chair, here there was no loss to Mr Lewis because he was otherwise going to be detained.

MR HERZFELD: But the loss is nonetheless the infringement of Mr Lewis’ right not to be imprisoned otherwise than in accordance with law, because that is ‑ ‑ ‑

GORDON J: To the detention and the “use the chair” analogy.

MR HERZFELD: I am so sorry, your Honour, I did not catch the beginning of that.

GORDON J: That is a different loss to the “loss of the use of chair” analogy.

MR HERZFELD: That is so, but nonetheless, the “use of chair” analogy shows that what is being compensated for is a right. It is a right to use the chair because it does not depend on whether the chair would in fact have been used and it does not depend on whether the owner of the chair would have sought to sit on it. All that is infringed is the right to use the chair.

EDELMAN J: Mr Herzfeld, that is every single tort. Every single tort involves the infringement of somebody’s rights. If that is all that is needed to prove a loss then every single tort involves a loss.

MR HERZFELD: Well, we would not go that far, which as I say is Professor Stevens’ conception because a tort of negligence, for example, which is not actionable per se, it is difficult to say that one has a right not to be damaged by someone else’s negligence. But it is not difficult to say that one has a right to possession of land and that, in our submission, explains the land cases – or the right to possession of a chattel and it is equally not difficult to say one has a right not to be imprisoned otherwise than in accordance with the law.

EDELMAN J: I think Professor Stevens is very, very clear that a loss is being worse off and that the mere violation of anyone’s rights, no matter what the violation is, does not necessarily make someone worse off.

MR HERZFELD: That is so, but an infringement of a right is something for which he refers to as leading to substitutive damages, I think he calls them. In our submission, that kind of analysis can be adopted. As I say, we do not need to go as far as him. We are focusing on what is plainly a right, that is, the right not to be imprisoned otherwise than in accordance with law. Just to finish the goods cases in the Mediana ‑ ‑ ‑

GAGELER J: Mr Herzfeld, before you finish the goods cases, you have formulated the right in those terms, and I can see why you have. But you slip between that and the way you formulate it in paragraph 5, which I think is more conventional, simply to refer to a right to personal liberty. There is a difference, I think, between a right not to be imprisoned, which equates to a right to personal liberty, which your client did not have, and a right not to be imprisoned otherwise than in accordance with law, which your client obviously did have. In my recollection, the cases in this field formulate the right as a right to personal liberty or, if you like, a right not to be detained. Adding these extra words is the whole basis of this line of your argument, is it not?

MR HERZFELD: Well, during the week the appellant had a right not to be imprisoned. Unless and until something else happened, during the week he had a right to liberty. The reason that we have added the words is because we accept that on weekends, in the place of detention specified in the Magistrates Court sentence, he had to be imprisoned.

KIEFEL CJ: Mr Herzfeld, on your argument, as I understand it, he had a right not to be imprisoned except by lawful means. So, it is the unlawful conduct which leads to his loss of liberty and the unlawful conduct is the decision, is it not, which is contrary to procedural fairness? Is that not the wrongful conduct? It is the wrongful conduct which creates the unlawfulness and the tortious liability.

MR HERZFELD: Yes, your Honour. That unlawfulness is then what, that aspect of the – let me start that again. That was unlawful in the sense of invalid – that meeting of the Board.

KIEFEL CJ: But that is the conduct which leads to the loss of liberty, is it not?

MR HERZFELD: It is. It is.

KIEFEL CJ: And the counterfactual is then determined by reference to that conduct.

MR HERZFELD: That is so. But the counterfactual does not answer this point which is that in fact the appellant’s right was infringed. If that is something which warrants substantial compensatory damages ‑ ‑ ‑

KIEFEL CJ: But to say that the right is infringed is to acknowledge what the result of the tortious conduct was. I mean, you are identifying it as the loss, but I think there is a confusion between the counterfactual analysis of what would have happened if the tortious conduct had not been engaged in and the other question, which is what was the loss for which damages are to be given. I think they are two different areas of discourse which you seem to run together, frankly.

MR HERZFELD: Yes. Let me see if I can state them clearly. We accept, in this Court, that the counterfactual is, because of the working of the legislation, that the appellant would have been lawfully imprisoned for the period for which he was unlawfully imprisoned. There was a disagreement about that in the courts below. We do not take that point in this Court.

Our point, though, is that does not change the fact that the appellant’s right to liberty was infringed. You can test that by asking, on a Wednesday was he lawfully imprisoned? The answer is no. Then one can test it on the Saturday as well because although the Magistrates Court order provided for him to be imprisoned on weekends, it specified it to be at a particular place of periodic detention. In fact, when one looks at the agreed facts he was imprisoned at a different place.

So at no time during the 82 days when he was imprisoned was he lawfully imprisoned. His right to liberty was infringed throughout that entire period, and that is the infringement for which, of this branch of the argument, we seek substantial compensatory damages.

GAGELER J: You have added the word “compensatory”. In what sense is this line of argument concerned with compensation?

MR HERZFELD: I am adding those words just to make it clear that it is separate from our vindicatory damages argument.

EDELMAN J: But only by the addition of a word, because you are deeming it to be compensation and you are deeming it to be loss, otherwise it is just vindicatory damages by another name.

MR HERZFELD: Well, with respect, we submit that cases like Inverugie and Plenty v Dillon show that there is accepted, within the notion of loss, the infringement of a right. So my answer to your Honour Justice Gageler, in what sense is it compensatory, is it is compensating for that infringement in the same way that we submit the Court in Plenty v Dillon accepted and, we submit, is the explanation of Inverugie and the goods cases as well.

GAGELER J: In Plenty v Dillon and in Inverugie the plaintiff would have had exclusive possession but for the tortious invasion of the proprietary right. So, there is a “but for” analysis, at least implicit, in both of those cases.

MR HERZFELD: I accept that, but what has been compensated, what has been identified as loss, is the infringement of the right. If that is right – if that proposition is correct, then even on a “but for” analysis the appellant suffered a loss because if you accept that his unlawful imprisonment and therefore the infringement of his right is a loss, then that would not have been suffered on the counterfactual where he was lawfully imprisoned.

So, there is no difficulty with a “but for” analysis on this branch of the argument. That is why I said earlier that a counterfactual analysis just cannot answer our first proposition that compensation goes for infringement of the right. As I say, there are other cases which we have collected, in paragraph 35. Your Honours will see a reference there to the same kind of approach being adopted in England to “the tort of misuse of private information”. There substantial damages are awarded for loss of the right to control that information.

Finally, on this topic, can we commend to your Honours two further references. The first is the analysis of Justice Allsop, when President of the New South Wales Court of Appeal, in Bunnings v CHEP, to which we have given your Honours a reference in the oral outline at point 4, and the second is the analysis in an article of Professor Varuhas recently published in the Sydney Law Review, which we provided to the Registry and which I hope has reached your Honours.

KIEFEL CJ: Yes, thank you.

MR HERZFELD: Now, if it is accepted, and there is nothing unusual about compensating for the infringement of a right when dealing with a trespassory tort, the next question is whether false imprisonment, which is of course a species of trespass to the person, should be excluded from that principle and, in our submission, it should not be and we make three points in support of that contention.

The first, the basis for the land and goods cases, in our submission is not merely that the property rights in question could be turned to financial gain ‑ and so this begins to answer a question that your Honour Justice Edelman asked of me earlier. That this is not the basis of those cases is evidenced by the fact that substantial damages go, even if the plaintiff is not a profit‑making business, which was the facts in the Mediana. It is also evidenced by the fact that substantial damages go even if the plaintiff would not have sought to turn the property rights to financial gain but for the tort, as explained in Inverugie.

Nor in our submissions are these cases simply an idiosyncratic exception to ordinary damages principles. Rather, the basis for these cases is the high intrinsic value which the law attributes to the property right which is infringed. That also finds expression in, for instance, the protection afforded to vested property rights by the principle of legality and the fact that trespass to land is actionable per se.

GORDON J: But in each of those cases, Mr Herzfeld, there was no inevitability as there is here in relation to this tort. That much is recognised. That is what it is being valued.

MR HERZFELD: The thing that is being ‑ ‑ ‑

GORDON J: You are missing an element ‑ ‑ ‑

MR HERZFELD: I am so sorry, your Honour, I think I keep cutting you off. There must be a slight delay in the video. The thing that is being valued in our submission in those cases is simply the infringement of the right. A causation analysis just does not come into it. That is why the plaintiff in the land cases can obtain damages even if they would never have used the land, or even if, as Justice Edelman put to me, if they had used the land they would have been worse off. A causation analysis does not come into it.

So the question of inevitability which is connected with causation simply is irrelevant to those cases, and so too here because the law gives a high intrinsic value to the right of personal liberty it, in our submission, is something, the infringement of which, leads to substantial damages.

EDELMAN J: But there is a difference, is there not, between cases which say you have taken my asset and used it, pay its value; you have taken my asset and kept it, pay its value, and cases which say - or your argument which says you have infringed my rights, pay me a random sum of money?

MR HERZFELD: Well, the cases cannot be explained as about taking because in the Mediana there was no taking. The facts in the Mediana were that the defendant’s ship crashed into the lightship and the lightship sunk. No one could use the lightship because it was at the bottom of the river ‑ ‑ ‑

EDELMAN J: But there is a real loss in the Mediana and the loss in the Mediana is the cost of having to have another lightship used for the period in which the lightship was getting repaired and that is how the damages were quantified.

MR HERZFELD: But there was no cost because they had that lightship already on standby and it would not have been used for any other period ‑ ‑ ‑

EDELMAN J: Because they insured - they had effectively self‑insured and insurance does not come into it.

MR HERZFELD: But there was no loss. It is not a case of insurance. There was no loss of any kind other than the inability to use the lightship and the damages, I think, from memory in The Mediana actually greed so there was no analysis of the way in which the damages should be quantified. So, in our submission, those cases cannot be explained simply as about use by the defendant of the plaintiff’s rights because, for example, in The Mediana there was no such use. Just turning then to liberty, like property rights ‑ ‑ ‑

GORDON J: Mr Herzfeld, if you put it in negative terms, there was no suggestion in those cases that there was going to be loss of use of the land or good in any event. That is why it is different.

MR HERZFELD: Well, in our submission, that demonstrates that a causation analysis is just not relevant and we say the same here. That must logically be so because if you are compensating for the infringement of a right it does not matter what would otherwise have occurred provided that that infringement would not have otherwise occurred which is the case here as well.

EDELMAN J: But I thought your submission was that you did not include cases of negligence in this automatic award of damages but The Mediana was a negligence case.

MR HERZFELD: That is so, but the Earl of Halsbury said that the analysis did not matter depending on the way that the tort was framed. What your Honour puts to me is right about the facts of The Mediana but certainly his Lordship’s analysis of the.....for example, was not framed in negligence. Now, we accept that those cases are about different kinds of rights but I have given your Honours the reasons why we say that the law protects them and they are the same kinds of reasons that the law should protect the right to liberty.

KIEFEL CJ: Mr Herzfeld, how does one - I think you have been asked this already, so forgive me if I am repeating the inquiry - how does one go about assessing the damages for the infringement of the right? What factors are taken into account in assessment of compensatory damages?

MR HERZFELD: Yes, so, obviously the length of the infringement might be relevant, for example.

KIEFEL CJ: You mean the length of the imprisonment?

MR HERZFELD: Yes, so here it was the 82 days but I accept that in a sense that is a general damages jury question, if I can put it that way, in the same way that always applies ‑ ‑ ‑

KIEFEL CJ: No, no, but I think the question about how one assesses an award of damages for the loss is very helpful to identify what loss you are actually speaking of. So, would you be looking at factors such as, as you say, the length of the imprisonment, the conditions in which the person was imprisoned, the distress that they may have felt, the loss of reputation that they may have felt, things devoted to – things affecting a person’s feelings and reputation? There could have been psychiatric injury as a result - are these all factors which you say might be relevant to an assessment of an award of damages for the loss that has been suffered, the loss of liberty?

MR HERZFELD: No, can I explain why?

KIEFEL CJ: Yes.

MR HERZFELD: All of those are really consequences. They are consequences on the infringement of the right and so we accept that if the appellant was always going to be imprisoned and he was always going to suffer, for example, the loss of reputation, the loss of earnings during that period, the only thing that he would not have suffered was the infringement of the right and that is, in itself, something which, in our submission, can be met by an award of substantial damages.

KIEFEL CJ: So, is another example of your approach that the right which is lost when there is an unlawful defamation is the right to reputation, and you get vindicatory damages for the loss of right to reputation, and that is it? Is that how one approaches it?

MR HERZFELD: Well, certainly vindication is an aspect of an award of damages in defamation, but ‑ ‑ ‑

KIEFEL CJ: But is all you need the loss of the right to reputation and everything else that might follow from it - loss of income or psychiatric injury, they are all consequential as well. What you are really concerned with is the right to reputation. Is that right?

MR HERZFELD: If that is the - analogising from what we say in this case, yes, but to be clear, again, whether defamation is the kind of tort which would attract this analysis may raise difficult questions because defamation now encompasses both libel and slander and their histories are different as to whether they are actionable per se or not, so there might be difficult questions in a defamation.

But certainly when one is dealing with a trespassory tort where there is an undoubted infringement of a right, yes, we do say that the infringement itself, putting aside the consequences, is something which can be met with an award of substantial damages. Just to finish that point, we do say that the kinds of factors which demonstrate why that is the case for property rights are also present, if not more so, in liberty and so it too is protected by the principle of legality.

EDELMAN J: So, Mr Herzfeld, if Mr Lewis had served his 82 days imprisonment in a five‑star hotel with room service and Netflix and every mod‑con imaginable, he would still get $100,000, on your analysis?

MR HERZFELD: Yes, just like in, I think it is Huckle v Money where it was beer and steak. So, your Honours, factors relevant to why the principle of legality - why liberty is something worth protecting in this way. Principle of legality that protects liberty, trespass to the person is actionable per se, just as trespass to property, and if an imprisoned person challenges the lawfulness of their imprisonment, the burden is on the defendant to justify the imprisonment as lawful.

GORDON J: That.....liability, that has nothing to do, does it, with the questions we are faced with?

MR HERZFELD: Well, in our submission, it is incoherent of the law on one hand to value the right to personal liberty so highly, but on the other to say that the infringement of that right is not of itself worthy of compensation.

GORDON J: Let us test that. It may be that it is reflected in a number of ways. First of all, it is actionable per se, which in itself reflects the importance of liberty. The tort itself and its acceptable elements for liability recognise the importance ‑ ‑ ‑

MR HERZFELD: That ‑ ‑ ‑

GORDON J: .....damage and what you are compensated for.

MR HERZFELD: That is so but, in our submission, it is nonetheless demonstrative of the value which the law places on this right and it is, in our submission, incoherent then for the law to give it a derisory value when it comes to valuing the infringement, because that is what occurred – 82 days of infringement of the appellant’s right to liberty is met with an award of derisory damages and that, in our submission, is wholly inconsistent with the value given to that right by other aspects of the law.

EDELMAN J: What do you do then with the consequences that are experienced by an appellant? So if the appellant experiences hurt feelings, all of the matters that the Chief Justice referred to, why is the appellant not entitled to compensation for those as well?

MR HERZFELD: Because on this branch of the argument, those are things which would have occurred on the counterfactual but the infringement of the right would not ‑ ‑ ‑

EDELMAN J: No, assume you have an analysis where inevitability is not present. On your approach there is this base amount of $100,000 for 82 days and, presumably, you would also be entitled to all of the additional consequential losses for hurt feelings, trauma, suffering and so on.

MR HERZFELD: Ultimately some of them would be sort of globally assessed as an award of general damages, and some might reflect special damage. But at the level of concept, yes, the award of general damages would include both value for the infringement of the right and the other kinds of matters which your Honour has put to me. Whether it is $100,000 in a given case is ultimately a question, really, as I say, a jury question – and that is why appeals of that kind of damages award are subject to strict limits. But at the level of concept, we accept what your Honour is putting.

EDELMAN J: But why would it, on your analysis, be a jury question, because the consequences are irrelevant so the only issue is the legal question of putting a money value upon an infringement of a right. A money value for 82 days, according to this case, is $100,000. Why would it be different in any other case, on your analysis?

MR HERZFELD: I am sorry, your Honour, I have used jury question not to mean something for assessment by the jury. I meant in the way that general damages are always a matter of impression. That is reflected in the fact that if there is an appeal from an award of general damages, one effectively has to demonstrate House v The King error. It is an unusual case of an evaluative decision to use language that perhaps is best not used which, when appealed, has to be subject to House v The King error. But that is the way I was using the language “jury question,” and general damages are always subject to that – and this aspect of general damages would be no different.

There has been, of course, no challenge in this case to the primary judge’s notional assessment, and I will say something about that at the end. So that is the first reason that we give for why the infringement to the right to liberty is, like the infringement to property rights, something which itself leads to an award of substantial compensatory damages.

The second point we make in favour of that proposition is that if one does not do so, the consequences are striking. Take one common example. Suppose that a police officer arrests the plaintiff without warrant, but does so unlawfully, because the officer does not state the reason for the arrest, or does not form the requisite mental state. Your Honours would be familiar with this circumstance from the recent decision in Robinson. Now, that is a false imprisonment and it is no defence for the police officer to prove that had they acted properly, they could have and would have arrested the plaintiff lawfully.

But on the Lumba approach, there will be no substantial damages if the Court is persuaded that had the officer known the arrest would be unlawful, they would have acted differently so as to bring about a lawful arrest. That is exactly what happened in Parker v Chief Constable of Essex Police [2019] 1 WLR 238. Would your Honours please take that up in volume 6, tab 50? Your Honours, for present purposes, it is sufficient to look at the headnote. Your Honours can see from around letter D that:

The arrest of the claimant was intended to be carried out by a detective constable who had played a central role in the investigation, but since she was detained in traffic a surveillance officer . . . effected the claimant’s arrest instead.

The arrest was unlawful because the arresting officer did not hold the relevant mental state and the argument was then for nominal damages. The trial judge said that on the counterfactual there would still have been an unlawful arrest because another surveillance officer ought to - without the requisite mental state would have performed the arrest. But the Court of Appeal allowed the appeal and said that the correct counterfactual is to consider what would have happened had it been appreciated what the law required. That kind of analysis could and inevitably would be deployed in almost every police false imprisonment case. It is an approach which is wholly alien to the pre‑Lumba authorities.

Your Honours can compare it, instructively, with respect, with the well‑known case of Christie v Leachinsky. Could your Honours please take that up? It is in volume 4 of the authorities, tab 26 – so[1947] UKHL 2; , [1947] AC 573. Again, your Honours can see, simply from the headnote, that the arresting officers there suspected, and had reasonable grounds for suspecting, that the plaintiff had stolen or feloniously received property. That would have provided a lawful basis to arrest him without warrant. But they told him they were arresting him for unlawful possession under a particular statute which did not give a power to arrest without warrant and it was therefore an unlawful arrest.

The order ultimately upheld by the House of Lords, your Honours can see on page 575 of the report. About the middle of that page it refers to the Court of Appeal’s order that there be judgment against the defendants for damages:

such damages to be assessed by a judge and jury –

That was the order which the House of Lords upheld. But there was no suggestion that only nominal damages should be awarded on the basis that, but for the unlawful arrest, the arresting officers would have arrested the plaintiff lawfully for stealing or feloniously receiving. So that is the second point we make about Lumba. The third point we make is that the reasoning in Lumba is, with respect, unpersuasive.

Now, to demonstrate that could your Honours now, please, go to Lumba, which your Honours will find in volume 6, joint book of authorities, at tab 55. It is [2011] UKSC 12; [2012] 1 AC 245. The principal point that we make about.....is that there is not in the Supreme Court’s consideration of the damages question any analysis of whether substantial compensatory damages go to the infringement of the right not to be imprisoned.

So far as the reasons in the recorded argument reveal there was no argument put to the Supreme Court of the kind which we put to your Honours. Your Honours can see that in the reasons of Lord Dyson, at paragraphs 91 and following, who gave the leading analysis of this point. After considering that an earlier decision of the Court of Appeal in Roberts had been wrongly decided, in paragraph 93 from letters E to F, his Lordship refers to two detainees, both of whom have been unlawfully imprisoned, but only one of whom would not have been detained but for the tort and his Lordship said of the other, who would have remained in detention whether the tort was committed or not, has suffered no loss.

That, in our submission, leaves out of consideration the infringement of that detainee’s right not to be imprisoned otherwise than in accordance with law. That itself, for the reasons that I have submitted, is a loss warranting substantial damages. Now, the other detainee who would, but for the unlawful imprisonment have been released, might suffer further loss and recover greater damages but even the one who would not have been at liberty has still suffered the loss, in our submission, of an infringement of their right to liberty.

At paragraph 94 his Lordship distinguished Kuwait Airways as involving “successive conversion by different tortfeasors” and as I will come on to submit shortly there is more to the causation analysis than is stated ‑ ‑ ‑

KEANE J: Mr Herzfeld, do I take it from what you have said about paragraph 93 in his Lordship’s reasons that you accept that the right to liberty can be of a different quality. There can be rights and rights. In other words, a right to liberty can be qualified in a way that means that the damages awarded in respect of its infringement may vary depending on the quality of the right?

MR HERZFELD: We do not accept that for this reason.

KEANE J: I thought that was the basis on which you attacked Justice Dyson’s reasons.

MR HERZFELD: Yes, so in relation to the two detainees both have had their right to liberty infringed in the same way but the detainee who would otherwise be out of prison has suffered various consequential losses as a result. As to consequential losses, there are differences. As to the infringement to the right, both detainees are in the same position. Your Honours, I notice the time.

KIEFEL CJ: Yes, the Court will adjourn for 15 minutes.

AT 11.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

KIEFEL CJ: Yes, Mr Herzfeld.

MR HERZFELD: Thank you, your Honour. Just before continuing with Lumba, can I just give your Honours a reference to a decision of the New South Wales Court of Appeal that may assist with some of the questions that I have been asked about the appellant’s residual liberty, if I can put it that way. It is New South Wales v TD [2013] NSWCA 32; (2013) 83 NSWLR 566. It is one of the decisions mentioned by Professor Varuhas in his article and it provides a similar kind of circumstances to this one where detention in a mental hospital was inevitable it was said and yet substantial damages went.

I was dealing with Lumba and I was up to paragraph 94 in the reasons of Lord Dyson, which mentions the Kuwait Airways Case, which I will come back to if I may, concerning causation. At paragraph 95, his Lordship’s analysis again, with respect, leaves out of account the infringement of the right not to be imprisoned as something itself worthy of compensatory damages.

Now, as I have said, his Lordship’s analysis on the question of compensatory damages was the leading analysis and, save for one exception, the Supreme Court majority who held that there was indeed a false imprisonment did not add substantively to that analysis. The one exception is Lord Kerr at paragraph 254, if your Honours would turn to his Lordship’s reasons, please. From the bottom of page 324, over to the top of page 325 his Lordship distinguishes what he describes as “restitutionary damages” for the kinds of trespass to property on which we rely. .....this category of damages was not relevant.

Now, for the reasons that I have given we dispute his Lordship’s view that added damages is not relevant. We also, with respect, dispute the depiction of those damages as restitutionary. They are, in our submission, compensatory in the way that Lord Lloyd explained in Inverugie, compensating for the infringement of the right. They do not depend on whether the defendant has made a gain by the infringement of proprietary rights.

So they are not restitutionary in the sense of requiring disgorgement by the defendant of its gains. They are also not restitutionary in the sense of requiring the defendant to pay for the use by the defendant of the plaintiff’s right. That can be seen, as I said, for instance, in The Mediana where no one had the right to use the ship because it was at the bottom of the river and yet damages nonetheless went for the inability to use that right.

Without going to it, your Honours, we do embrace in this regard the criticism of the label “restitutionary damages” by Professor Stevens in his text, which your Honours will find in volume 8 of the joint book at tab 83. The relevant pages are pages 79 and following of the text.

Can I now move to the dissenting reasons in Lumba of Lord Brown, with whom Lord Rodger agreed. His Lordship took the view that because the detainees would have been detained under a different valid policy, even if the Secretary of State had not relied on the invalid policy, that there was no false imprisonment at all. With respect, that is contrary to the orthodox position explained by the majority in Lumba that it is not a defence to the false imprisonment claim for the defendant to say that the plaintiff could have been lawfully detained and it is not an approach for which either the Territory or the Commonwealth contends here. It would also, of course, involve a challenge the primary judge’s conclusion on this point, which was not made in the Court of Appeal.

But we do draw attention to two motivating factors for his Lordship’s approach. If your Honours could turn to paragraph 343 of the reasons, please. Two motivating factors for his Lordship’s approach were these: first, the absence of authority prior to Lumba for the proposition that false imprisonment could result in an award of nominal damages, and secondly, the fact that such an approach devalues the fundamental right to personal liberty.

Your Honours can see those ideas from paragraphs 343 to 345 and we embrace particularly the following parts of that - from the bottom of page 352, the last line, over to the top of page 353; the last sentence of paragraph 344 and then also what is said about Christie v Leachinsky at paragraph 345.

Now, with respect to his Lordship, however, the solution is not that which he favoured. Rather, it is to recognise that substantial damages may be awarded for infringement of the right to liberty. It has been put against us that Lumba has been subsequently applied in the UK but that is hardly surprising, given that this is a decision of the highest court in the UK. It does not add to the persuasiveness of its reasoning, as none of the subsequent cases have sought to elaborate on that reasoning; they have just applied it, and in none of the subsequent cases has an argument like that which we put to your Honours been put.

Indeed, just to give your Honours a reference, in Bostridge [2015] EWCA Civ 79, which your Honours will find at volume 4, tab 25, which is an unreported decision of the Court of Appeal, at paragraph 20 the court specifically notes that an argument of the kind which we advance had not been advanced in that case.

Finally, on this branch of the argument, can I then come to CPCF. Could your Honours please turn to CPCF [2015] HCA 1; (2015) 255 CLR 514 in volume 2 of the joint book at tab 7. The context, as your Honours will recall, was the interception of an Indian‑flagged vessel carrying passengers claiming to be refugees by Australian border protection officers. The passengers were transferred to an Australian vessel and detained there, and questions were put to the Court on a special case concerning whether the detention was authorised by the Maritime Powers Act.

Your Honours will see the questions asked and the answers given, starting at page 658 of the CLR print and over the page, down the bottom of page 659, your Honour will see that question 6 asked whether the detention was unlawful for any period, and if so, whether the plaintiff was entitled to claim damages in respect of that detention. The answer given was no. That answer was given because the majority, comprising Chief Justice French, Justice Crennan, and your Honours Justices Gageler and Keane, held that the detention was authorised, and it was therefore unnecessary for the majority to consider the damages question, which was also raised by question 6.

But in relation to that question, the Commonwealth sought to rely on Lumba and in response the plaintiff did not challenge the correctness of Lumba, but rather sought only to distinguish it. Your Honours can see that, if your Honours would turn to the transcript of argument pleadings in volume 4 of the joint book of authorities at tab 27, and the relevant part of the transcript is at 1247 of the joint book, which is line 3470 of the transcript itself.

Your Honours will see that from there, over the page, was all that was said by the plaintiff about Lumba, and counsel sought to do two things: first, to distinguish Lumba on the basis that the circumstances in which he was in detention on the counterfactual might have been different, that is, on land in a detention centre rather than at sea on a Commonwealth vessel, and arguing that to be so, counsel argued that quantification of damages should be left to assessment on remitter.

The first point we would make about CPCF is that the correctness of Lumba simply was not in issue, so all of the reasoning about Lumba in CPCF touching on damages has to be read in that light. If your Honours then return to CPCF, of the members of the majority, only your Honour Justice Keane considered the topic of damages. Your Honour did so starting at paragraph 510 and your Honour noted in paragraph 510 that it was strictly unnecessary to determine those issues for your Honour, having concluded that the detention was lawful, and so the reasons which follow are expressly dicta. Then, given that the Court was not presented with the question of whether or not Lumba should be followed, your Honour Justice Keane did not consider that question in the reasoning that follows 512.

Turning then to the minority, your Honour the Chief Justice and separately Justices Hayne and Justice Bell in joint reasons dissented as to whether the detention was lawful.....reasons that does not form a part of the ratio of the decision. In any event, more fundamentally, the present point simply was not in issue. With respect, that can be seen in the reasons of your Honour the Chief Justice at 324 – paragraph 324 to paragraph 325. Your Honour did not address the question of whether Lumba was correctly decided because it was not a question that was asked. All that your Honour rejected was the argument the plaintiff put attempting to distinguish Lumba.

Finally, can I turn to the reasons of Justice Hayne and Justice Bell commencing at paragraph 153. At that paragraph, their Honours noted the argument that had been put by the Commonwealth. At paragraph 154 their Honours explained that the potential differences in the places and times and conditions of detention were reason enough to reject that contention. At the end of that paragraph, their Honours then said:

But there is a more fundamental reason to do so.

That was explained in the following paragraph, 155. We embrace what is put there. First, we embrace the reference to:

false imprisonment is for vindication of basic legal values –

and secondly, we embrace the proposition in the middle of the paragraph that:

demonstrating that a plaintiff was unaware of the imprisonment, or for some other reason suffered no substantial loss –

footnoted then to Lumba, that that does not of itself:

require the conclusion that only nominal damages may be awarded.

Accepting again, that the point was not in issue in CPCF, that reasoning supports the propositions we advance in this case. The Commonwealth then relies on what is said at paragraph 157, particularly the second and third sentences but in light of paragraph 155, we read what is said there as reflecting that there was no challenge in this Court by the plaintiff to the correctness of Lumba. The plaintiff sought the opportunity to debate all questions of damages on remittal at trial and the reasoning there is to the effect that the plaintiff should have that opportunity, that the questions of fact and law, including the correctness of Lumba, would be open to debate on that trial.

EDELMAN J: Why are their Honours not, at paragraph 155, to be taken as saying no more than when something is actionable per se, then substantial damages can be awarded without the proof of loss, for example, as exemplary damages because the actionability itself does not depend upon loss?

MR HERZFELD: That is so, but there is a specific reference to Lumba, for some other reason suffered no substantial loss, and then when your Honours turn to the answer to question 6 given by their Honours at page 572, your Honours will see that their Honours left open a question whether damages for detention whether nominal or substantial should be determined at trial.

GORDON J: That is because of the matters.....set out in 157?

MR HERZFELD: But it also had to be read in light of 155. So we really do read their Honours’ reasons as they must be read in light of the arguments put by the plaintiffs, which simply did not seek to contend that Lumba was wrongly decided. But what is found at 155 we do think rather suggests and we do embrace the reasons there, that Lumba is not correctly decided for the reasons I have given.

But frankly, the more basic point about CPCF is the one that I think I have now said probably at least four times, which is that the argument just was not presented in CPCF. The issue just was not in issue in CPCF, and so really nothing in the reasoning in CPCF bears on the present question where the point is in issue before your Honours.

Now, if we are right that the appellant is entitled to substantial compensation for the infringement of his right not to be imprisoned no difficult question of causation arises. As I have said, there is then a relevant difference between the situation the appellant was in and that in which he would have been, that difference being the infringement of his right.

But even if the Court rejects our contention that substantial compensatory damages go for the infringement of the right, we then rely on the second way in which put the case set out at points 7 to 10 of our oral outline. Let it be assumed that the harm suffered by the appellant is not the infringement of his right but rather the fact of full‑time imprisonment of 82 days. So that harm was in fact caused by his unlawful imprisonment, or, putting it slightly differently, the unlawful conduct of the meeting of the Sentencing Board. That is what is in fact caused the 82 days of confinement.

The Territory says that if that unlawful conduct had not caused the harm it would have been caused by lawful imprisonment or, put differently, it would have been caused by a lawful meeting of the Sentencing Administration Board. That kind of reasoning adopts what Hart and Honoré refer to as an alternative cause.

Could your Honours, so that I can be precise about it, please turn to their text in volume 8 of the book of authorities at tab 70? On page 249 of the text, which is page 2770 of the joint book, there is an explanation of the way they are using an alternative cause.

GORDON J: Can I ask if this is dealing with liability rather than damage?

MR HERZFELD: The question of causation goes to damages as well as liability, yes.

GORDON J: I am asking if this analysis ‑ ‑ ‑

MR HERZFELD: I am sorry, your Honour, I did not quite catch that?

GORDON J: I am asking whether this analysis is dealing with liability rather than damages?

MR HERZFELD: Yes. The analysis deals with both in places that I will show your Honour. Their Honours are dealing with what they – not their Honours – the authors are dealing with what they explain as an alternative cause, that is an event which would have occurred but for the wrongful conduct and which it is asserted would have led to the same result.

EDELMAN J: It is not really a happy expression, “alternative cause”. What they really mean is events or factors that are not necessary but contribute to the outcome.

MR HERZFELD: They do not, in fact, contribute because the notion of an alternative cause is one that is hypothetical. It did not, in fact, occur but would have occurred on the counterfactual. So that is why they are using the language of “alternative cause”.

EDELMAN J: It is the defendant’s wrongful act that contributes – the defendant’s actual wrongful act that contributes to the outcome but is not a necessary event or a cause of the outcome.

MR HERZFELD: That is because, in this category of case, there was some other event that would have occurred to produce the same result. That is the way they are using the language. That is really what is being posited here. What I would seek to demonstrate is that the way that the law deals with alternative causes is not uniform.

EDELMAN J: Is not the basic or the fundamental difficulty with this submission that in the law of torts, criminal law, elsewhere, it is very easy to attribute responsibility to a wrongdoer once you say that the outcome, or the loss, would not have occurred but for the wrongdoer’s act – the wrongdoer’s act was necessary for the result. As soon as you depart from that, as soon as you say it would have happened anyway, then you need a much stronger justification to impose responsibility upon a wrongdoer. All the examples that you are citing are examples where exceptional circumstances give rise to that stronger justification. The general rule is not that you impose responsibility for things that would have happened anyway. That is the exceptional rule.

MR HERZFELD: Well, we do not accept the characterisation that one needs extraordinary events. All I am going to seek to demonstrate to start with is that there is not a uniform approach and then I will make some submissions about why the approach to be applied here is the one for which we contend and, in doing so, I accept that I have to meet the challenge which your Honour’s question puts to me.

So the first thing that I am just going to seek to demonstrate is the approach to alternative causes is not uniform and, having said that, I am not seeking in my submissions to solve all problems to do with alternative causes in all areas of the law. What we do seek to demonstrate is there is a choice to be made, informed by normative and policy considerations. One cannot, with respect, as the Commonwealth does, particularly in its written submissions, simply apply a “but for” analysis because that would in all cases of alternative causes deny recovery and that is not what is found in the cases. So can I seek to demonstrate that?

GAGELER J: Do we get anything more out of Hart and Honoré than the terminology?

MR HERZFELD: Yes, so I will come back to Hart and Honoré but I want to go to the cases before going back to their text. The first example that we give is that where a defendant converts the plaintiff’s goods by taking them, it is irrelevant both to liability and damages – it is irrelevant that if the defendant had not done so, some third party would have done so.

Your Honours can see that in the Kuwait Airways Corporation Case that Lord Dyson referred to. Would your Honours please take that up in volume 5 of the authorities, at tab 39. It is [2002] UKHL 19; [2002] 2 AC 883. The issue concerns conversion of six out of 10 of the aircraft owned by the Kuwait Airways Corporation and the argument was put that they were going to be converted anyway by Iran and that was rejected.

Your Honours will see that in two places particularly - firstly, in the speech of Lord Nicholls, at paragraph 82, and the rest of their Lordships agreed with Lord Nicholls and, secondly, in the speech of Lord Hoffmann, at paragraph 129. Now, as I say, that was the case mentioned by Lord Dyson in Lumba and his Lordship referred to it as dealing with successive tortfeasors. That is not quite accurate because what it was dealing with was a single tortfeasor who seeks to defend the claim by saying if they had not converted the plaintiff’s goods someone else would have done.

What these reasons make clear is the defendant cannot escape both liability and substantial damages by pointing to the fact that, even if the defendant had not taken the plaintiff’s goods, the plaintiff would not have had them because some other person would have taken them. So it is a classic example of where the “but for” test gives the wrong result.

GORDON J: Does it.....suffered loss?

MR HERZFELD: Yes, indeed, the person suffered loss but only on one view. On the other view, the person has not suffered loss because of the actions of the first tortfeasor and has not suffered loss at all because they say – the tortfeasor says, “Well, you were never going to have the goods.” The law does not allow the first tortfeasor to say that. It is an example of where a positive alternative cause cannot be relied upon to deny substantial damages.

EDELMAN J: But how do you deal with paragraph 84, two paragraphs later?

MR HERZFELD: Yes. So the Hiort Case and some of the other earlier cases mentioned are quite complicated cases. But certainly on the facts of the Hiort Case, the outcome was right. Really it was not because of a counterfactual analysis in that case. It was because within days of the conversion, the plaintiff authorised the conversion so all that you had was a very transient denial of use of the goods. There is quite a helpful analysis of some of these cases again in Professor Stevens’ text at pages 63 to 66 of the text.

EDELMAN J: But that is not Lord Nicholls’ reasoning, is it?

MR HERZFELD: Well, that is so, but it is not a case of successive conversions, as his Lordship says. It is not dealing with the circumstance we are presented with here either. It is not really a case of “but for” causation either. It is a case, as I say, where there was in fact authorisation within days. I accept that not all of these cases are easy to reconcile – I said that at the outset. But certainly in the case of someone who converts goods, they cannot point to an alternative cause to deny the link between their act and the damages and that is not only limited to cases of multiple tortfeasors.

GAGELER J: This is just an example of what, in some contexts, is called the drug dealer’s defence. “If the addict hadn’t got it from me, they would’ve just got it from someone else.”

MR HERZFELD: Yes.

GAGELER J: Now, for good policy reasons, the law does not allow that to be said. But that is a very long way from this case.

MR HERZFELD: So I am going to edge closer to this case. So it is not limited to multiple wrongdoers. Your Honours can see this in American cases concerning fires, which his Honour Justice Hayne mentioned in Chappel v Hart.

EDELMAN J: But these are all exceptional circumstances where responsibility is imposed, even though the act was not necessary for the outcome. What you are trying to do is take a select group of very exceptional circumstances and create a new rule out of them.

MR HERZFELD: Well, with respect, there is already a rule, which is that in some cases the court does not allow, the law does not allow alternative causes to deny causation. So the only question then is where does this case fit? As your Honour Justice Gageler said, the notions of policy and normative considerations really provide the answer to that.

So what I will do in the interests of time is give your Honours the reference that I was going to take your Honours to, the American fire case. That is Anderson, which your Honours see is referred to in our oral outline, and then Hart and Honoré, in a different example on page 249 of the text, refers to a criminal example of where alternative causation is not permissible. We, as I said at the outset, do not say that this is always the correct approach.

KIEFEL CJ: Mr Herzfeld, do I understand that this aspect of your argument really challenges the notion of inevitability in Lumba - that there cannot be, for policy or other reasons, any inevitability of loss?

MR HERZFELD: It does not challenge the notion of inevitability. It challenges the relevance of inevitability. There cannot be, for policy reasons, reference to the inevitability in assessing the damages.

KIEFEL CJ: That is really as far as this goes, is it not? That is your point.

MR HERZFELD: It is.

KIEFEL CJ: Do you need to develop it very much more?

MR HERZFELD: No, I need to develop it only slightly more in this way. We refer to the fact that this is simply a more particular instance of the fact that in causation cases it has been remarked in this Court and elsewhere that this is not a purely logician’s exercise, it is an exercise that involves normative and policy considerations and we have given your Honours in the oral outline a reference to simply one of those statements of Justice Gummow from Chappel v Hart and there are many others.

We do submit then, really for the reasons we have already given concerning the importance that the law attaches to the right to liberty, that it would be discordant with those other aspects of the law for a defendant to be able to escape being required to compensate the plaintiff for unlawful imprisonment which the defendant has actually inflicted by contending that had the defendant not done so the defendant would lawfully have imprisoned the plaintiff, thus causing the same harm.

To be clear, and as we said in our written submissions, that does not seek to answer all cases but it is not, in our submission, open to be said by a defendant who unlawfully detains a plaintiff that they would, in other circumstances.....them lawfully. Like the first way in which we put the case, this was not an aspect of an argument that was considered at all in Lumba.

Can I move then to the topic of vindicatory damages? If, contrary to the submissions we put substantial compensatory damages are unavailable, in our submission, the Court should recognise a head of wrong compensatory but vindicatory damages in this kind of case. That was the course favoured by the minority in Lumba and we have given your Honours the references at point 11(c) of our outline.

Now, we accept that this is a development of the common law of Australia but it is a development which we submit is consistent both with authority and principle. Can I start firstly with authority? I have already identified in cases like Plenty v Dillon the roots for the notion that a function of general damages is to vindicate an infringed right. We have identified in our written submissions in footnote 65, various cases in the defamation context which likewise recognise that a function of an award of damages in that context is to vindicate the plaintiff’s injured reputation.

In addition to those references, can I take your Honours please to the reasons of Justice Brennan in Carson v John Fairfax 178 CLR 44, which your Honours will see in volume 2 of the authorities at tab 5. If your Honours turn to the reasons of Justice Brennan at page 70, his Honour at the top of the page, quoting Lord Hailsham, explained what it means to say that the amount must be sufficient to vindicate the plaintiff’s reputation.

In our submission, what is referred to there, in particular by Lord Hailsham is decidedly non‑compensatory. It is referring to being able to point to the damages in future in order to convince a bystander of the baselessness of the charge. A vindicatory purpose is similarly present in the recognised head of non‑compensatory exemplary damages and your Honours will see that, for instance, without going to it in what this Court said in New South Wales v Ibbett, which we have given your Honours a reference to in the oral outlines.

Now, we accept that in each of these cases there was not a separate head of vindicatory damages but the cases do recognise that vindication is a purpose of an award of general damages. That is then the context for authorities which have recognised a separate head of vindicatory damages and can I take your Honours please to one? It is the decision of the House of Lords in Rees v Darlington Memorial Hospital [2004] 1 AC 309, which your Honours will find in volume 7 of the authorities at tab 57.

The context of the decision was that a majority of the House of Lords had held that the policy reason, a mother who had a healthy child after a negligent sterilisation procedure, could not recover compensatory damages for the cost of raising this child. The majority instead held that the mother and anyone in like position could recover a “conventional award” of £15,000.

Could your Honours please start with the speech of Lord Bingham and turn to paragraph 8. His Lordship there referred earlier to the previous decision and then in paragraph 8 explained his Lordship’s concerns and explained from the bottom of page 316 to the top of 317 that the fact remained that the mother was “the victim of a legal wrong” and around letters D to F explained the reasons that his Lordship favoured a conventional non‑compensatory award of £15,000.

That conclusion was agreed in by Lord Nicholls, at paragraphs 17 to 19, and then by Lord Millett at paragraphs 123 to 124, and if your Honours turn to 123 to 124, your Honours will see that Lord Millett there referred to the infringement or loss of a right as justifying the award of general damages. His Lordship said the loss of this right is not an abstract or theoretical one, which also supports the points we made earlier about compensatory damages going for the infringement of a right.

EDELMAN J: When Lord Bingham talks about the convention of an award not being compensatory, is he not just using the term, the word “compensatory” in the sense of meaning it is not a product of precise calculation, as he says, not that there was not a loss suffered. In fact, he goes out of his way to say that there was a loss suffered.

MR HERZFELD: But the earlier decision had held that one could not recover, for policy reasons, compensation for that loss, and so ‑ ‑ ‑

EDELMAN J: No, no, no, the loss he is talking about is the loss of the ability to - for the mother to live her life in the way that she had wished and planned. That is an adverse consequence that she suffered and this so‑called “conventional award”, if it is viewed in that prism, it is clearly non‑pecuniary loss.

MR HERZFELD: But his Lordship was following the previous decision which had said that compensation for the consequences of the negligent sterilisation, that is, having a healthy child, for policy reasons could not be the subject of compensation, and so if it is viewed in the manner that your Honour is ‑ ‑ ‑

EDELMAN J: Yes, but not the consequence of the ability to choose how the family will be planned and developed.

MR HERZFELD: But then it is general damages for infringement of a right and then it is, of course, the first ‑ ‑ ‑

GORDON J: I do not know whether that is right. If we go to paragraph 123, Lord Millett picks up that exact same analysis, does he not, that Justice Edelman has just put to you?

MR HERZFELD: But then it supports the first way in which we put the case, which is that it is compensation for infringement of a right.

EDELMAN J: No, it is compensation for infringement of the right, with the particular consequence that the adverse effect has been suffered, that the plaintiff has been unable to choose how she is going to run her life.

MR HERZFELD: But that, those consequences, were precisely what compensatory damages could not go for according to the earlier decision. So that is why his Lordship referred to the award as being non‑compensatory. But as I say, the case really supports us, in our submission, either way. Either it is compensation for infringement of a right, or it is an award of non‑compensatory vindicatory damages, which supports this way which we put the case.

The same may be said, that being a common law tort case, to this approach to an award of damages in the privacy torts in Ontario and prior to Lumba in England in the cases we have referred to in footnotes 71 and 72 of our submissions and also, of course, in various places the courts have awarded a vindicatory award for infringement of constitutional rights, though, of course, we place greater reliance on the common law cases than the constitutional ones.

EDELMAN J: Are you going to deal with any of the cases subsequent to Rees which have denied the extension of the conventional award to any other circumstance where there has been an infringement of a right?

MR HERZFELD: Yes. Lumba was one of them, of course. So yes, I am going to deal with that. Turning though from authority to principle, before I do, in our submission the same explanation as that given by Lord Bingham in paragraph 8 and Lord Millett in Rees is applicable in a case like the present. But the same kinds of considerations as to the importance of the right to liberty, and why we say attracts an award of compensatory damages, those same considerations justify, if that kind of award is not available, the award of substantial vindicatory damages.

Just on this point, contrary to the submission of the Territory, the right being vindicated is not merely the appellant’s interest in having questions affecting his liberty determined in accordance with the law. The right being vindicated is the right not to be unlawfully imprisoned.

Now, then to come to your Honour Justice Edelman’s question, we accept that criticisms have made of this head of vindicatory damages. But, in our submission, those criticisms are overstated for three reasons. The first is that the circumstances in which such an award would be available are limited. It is only where ordinary compensatory damages are not available yet an award of nominal damages is inappropriate, having regard to the importance of the right that has been infringed. Those circumstances can be expected to be limited.

Secondly, the fact, though, that vindicatory damages may not be limited to cases of false imprisonment by the State is, in our submission, not an objection – it was one of the objections Lord Dyson identified in Lumba. That is not an objection because the State really has no monopoly on the infringement of.....rights.

The third point which was made in Lumba was that there is uncertainty as to the availability or quantification of vindicatory damages. In our submission, that uncertainty is really no greater than the uncertainty which often arises in relation to awards of general damages for non‑pecuniary losses. That is a topic on which minds can differ, but over time cases become established and principles and comparisons can then be drawn. That sort of thing can readily happen with vindicatory damages as well. So, in our submission, those criticisms really are overstated.

We then have to deal with the fact that the Court of Appeal in this case concluded that even if vindicatory damages were available, they should not be awarded here. Your Honours will see the reasons for that given particularly at paragraphs 67 and 68 in the Court of Appeal’s reasons, page 113 of the appeal book. In those paragraphs the point was made, it was said, that the unlawfulness here was at fairly much the lowest level.

Now, in our submission, that wrongly focuses on the reasons the Board’s decision was invalid, rather than on the unlawfulness of the imprisonment. It is not at fairly much the lowest level to imprison someone unlawfully for 82 days.

Next, it is said in paragraph 68 that the appellant, but for the unlawful imprisonment, would have been lawfully imprisoned. But with respect to the Court of Appeal, that is no answer, because the appellant’s right not to be imprisoned was in fact infringed. It is not an answer to that to postulate a counterfactual.

More generally, the kind of reasoning that your Honours find at paragraphs 67 and 68 is, with respect, redolent of the incorrect devaluing of the appellant’s rights of the kind which was criticised in Plenty v Dillon. It really does, in our submission, make a mockery of the many statements which may be found in the cases about the fundamental common law right to liberty, to vindicate that right by an award of derisory damages.

That brings me then to the last topic that I wanted to address orally, which is relief, including quantum. So the orders that we seek are those set out in paragraph 54 of our written submissions, which reflect the orders sought in the notice of appeal. Can we make two points about those orders. The first is that your Honours will note that the quantum of the judgment sought here is $100,000. That was the amount notionally assessed by the primary judge, which your Honours will find in the appeal book at page 62, at paragraph 388 of the primary judge’s reasons – following some references by the primary judge to various other cases.

That amount has not been challenged by either the Territory or the Commonwealth. In our submission, it is an appropriate amount for 82 days’ infringement of the right not to be imprisoned, working out to about $1,200 per day. Awards of general damages vary very dramatically in the false imprisonment cases.

Can I just take two of the cases that the primary judge mentions at paragraph 387. The first is Myer Stores v Soo [1991] VicRp 97; [1991] 2 VR 597, and the primary judge did not there give the reference. The Victorian Court of Appeal there awarded $10,000 damages, I accept including aggravated damages, for one hour’s detention at a Myer security office. Conversely, to take another one of the cases, a comparatively smaller award was made in Spautz v Butterworth [1996] NSWSC 614; (1996) 41 NSWLR 1. There there was an award of $75,000 damages for 56 days’ false imprisonment in a gaol.

Now, given that variation, that possible variation, there is in our submission no basis to disturb the primary judge’s notional award in this case, which, as I say, has not been challenged. We accept, if the award is based on vindicatory damages rather than compensatory damages, the primary judge did not make a notional assessment of that kind of award. But we do maintain that a $10,000 award is appropriate. Given the importance of the right to personal liberty, any award to vindicate the infringement of that right must be substantial.

Now, we must accept in saying this that the award favoured by the minority in Lumba was less than this – figures varied between £500 and £1,000 for many months of detention. But, in our submission, that kind of amount cannot properly be regarded as vindicating infringement of a right as important as that to personal liberty.

The second point we make about relief concerns costs, and it is a very brief point. The Territory has in writing contested the orders we seek for the costs of the proceeding at trial and in the Court of Appeal. We responded to this in writing. If that point is indeed pressed in oral argument on behalf of the Territory, I propose to deal with it in reply.

I am so sorry, your Honours. I think I may have said that an award – this is important. I think I may have said that the award of vindicatory damages we seek was $10,000. That is not what I sought to submit.
However the case is put, $100,000 – both compensatory and vindicatory awards. Unless there are any questions, those are the submissions we would seek to make orally in supplementation of our written submissions.

KIEFEL CJ: Thank you, Mr Herzfeld. Solicitor‑General for the Australian Capital Territory.

MR GARRISSON: May it please the Court. The respondent relies on its written submissions and these oral submissions are supplementary to that. Your Honours have an outline of oral submissions which identifies the key points that I will take the Court to. But it is important to recognise that the one central and ultimate question in this appeal, which is should Mr Lewis be awarded other than nominal damages for his false imprisonment, actually requires a regard to be had to the circumstances of his detention. Those circumstances are largely set out in the respondent’s submissions at paragraphs 5 to 15 and also in the reasons of the Court of Appeal at paragraphs 32 to 36 in the core appeal book at page 6.

In short terms, the appellant was convicted of an offence of inflicting actual bodily harm and sentenced to a term of imprisonment of 12 months to be served by way of periodic detention. As your Honours will be aware, the statutory scheme for periodic detention as a sentencing option has since been repealed.

The appellant repeatedly failed to perform periodic detention. During the term of the periodic detention sentence, the appellant left Canberra. The Administration Board sent several letters to the appellant’s mother’s address in Canberra identifying the breaches, proposing to conduct an inquiry and directing the appellant to attend the inquiry. It is uncontroversial, I think, that those failures gave rise to a duty on the Board, under section 69 of the Sentence Administration Act, to cancel the appellant’s periodic detention under section 68.

The appellant does not appear to contest that there, in fact, existed a lawful basis for the appellant’s detention by way of the operation of sections 68 and 69 coupled with the appellant’s underlying sentence of imprisonment. However, the order of the Board cancelling the appellant’s periodic detention was set aside by the Supreme Court because it was found the Board did not take steps to ensure that the appellant had received notice of the hearing at which the order for cancellation was made.

That is set out in the reasons in Lewis v Chief Executive of the Department of Justice and Community Safety [2013] ACTSC 198; (2013) 280 FLR 118 - in the joint book of authorities, volume 5, tab 41. I would refer the Court to paragraphs 204 to 206 and paragraph 197. The reason for pointing that out, your Honours is, of course, the action for wrongful imprisonment was a separate proceeding.

So in separate proceedings for damages for false imprisonment the Supreme Court found that the imprisonment was unlawful, but because the imprisonment of the appellant was inevitable he was entitled only to nominal damages. It is the primary decision, which appears at the core appeal book tab 1, page 5. In that decision, his Honour Justice Refshauge found that the decision which had been set aside in the earlier.....was in fact a nullity and was void.

As a result of that finding, his Honour found that the appellant was falsely imprisoned. That is at paragraphs 207 to 217 of his Honour’s reasons. The Court of Appeal affirmed the statutory basis for the appellant’s detention and the award of nominal damages. Your Honours have already been taken to the reasons of the Court of Appeal, and relevant paragraphs are at 52 to 60.

The first issue is the question of public law error. We say that the Sentence Administration Board was obliged to cancel the appellant’s periodic detention, coupled with the underlying sentence of imprisonment, and there seems to be no dispute about that. But the fault, the error of the Board, was in not satisfying itself that the appellant had been given proper notice. Had he been given proper notice, his periodic detention would not have been cancelled.

Accordingly, this is a case in which the decision to detain was authorised and in fact mandated by statutes, but made in breach of a rule of public law. The Territory submits that in accordance with the established principles, in order to establish an entitlement to an award of substantial damages, the appellant must demonstrate injury or loss. There appears to be no contest. The appellant cannot demonstrate loss in the present case.

The Territory argues that infringement of a right is not loss in the conventional sense. Were it so, the principle of compensatory damages requiring demonstration of loss would be completely otiose. The Territory submits that in those circumstances.....the appellant was detained pursuant to statutory authority. That afforded a lawful basis for his detention, notwithstanding the procedural defect. The appellant is entitled to no more than nominal damages and that is not to say that this follows in every case. That is not the Territory’s position.

The Territory need not, however, establish that proposition in order to defend the decision below – a very narrow set of circumstances where there was severe, not only lawful authority but an obligation, a duty on the part of the Board to cancel the appellant’s periodic detention.

The appellant seeks an award of substantial damages on two bases. First, it appears, by seeking to undermine the principle articulated in Lumba, and, in short form, and secondly, by asking this Court to embrace a novel category of vindicatory damages in tortious cases. In Lumba, three judges in the majority - Lord Dyson, Lord Collins and Lord Kerr - each considered that nominal damages was appropriate where the appellants would have been lawfully detained if the published policy had been applied to them - Lord Dyson at paragraph 95, Lord Collins at paragraphs 221 to 237 and Lord Kerr at paragraph 256.

The other three judges in the majority, Lords Hope, Lord Walker and Baroness Hale, considered a modest conventional sum which ranged between £500 and £1,000 was appropriate. In both instances the nominal and conventional award was considered sufficient to vindicate the infringement of the right in question and to act as a deterrent to further infringements of those rights. In this regard Lord Walker made some observations at paragraph 195, Baroness Hale at paragraph 217 and Lord Collins at paragraph 235.

Importantly, those judges who considered what has been called a conventional sum to be appropriate did say, acknowledging a breach of the appellant’s rights in circumstances where the conduct of the officials was a serious abuse of power, deplorable, and a decision taken at the highest level of government, irrespective of the statutory purpose of that power to detain, and that observation of the nature of the conduct of the defendant in that case by Lord Hope at paragraph 176, Lord Walker at 194 and Baroness Hale at 216 nevertheless persuaded them to award an amount which they described as a conventional sum but, with respect, one would look at and view as anything other than a conventional sum, and very little more than a nominal amount.

Notwithstanding a majority decision on the question of liability for false imprisonment, none of the judges who addressed the question considered an award of substantial damages to be appropriate recognition of the infringement of the appellant’s rights. The use of nominal damages in recognition of the infringement of a legal right is not new. My learned friend referred to The Mediana v The Comet, which is the well‑known statement by the Earl of Halsbury in relation to the concept of nominal damages.

It is important to pick up the point that my learned friend made, that the award of nominal damages is not a devaluation of the tort of false imprisonment. Lord Kerr made that observation in Lumba at paragraph 252. Lord Brown, to whom a reference has been made, was of a different view in Lumba about the question of nominal damages. His Honour, as you will recall, was actually concerned about the juxtaposition between, on the one hand, having a rightful contention and a wrongful contention on the same plane. His Honour’s answer was, well, it is not wrongful detention. His view was that a court that speaks with two voices was bringing the law into disrepute. His Lordship says that at 345.
However, that was his Honour’s view of reconciling a.....that a flawed decision‑making process leads to detention that is unlawful. His Honour took the option of saying it does not. That was at 345 and 347 of his Honour’s judgment. That juxtaposition, if one unpacks it, still leaves open that lawful justification, certainly in his Lordship’s view, is open and exists. Any award of damages should acknowledge the reality of that situation.

GAGELER J: Mr Solicitor, can Lumba be explained simply on the basis that if the invalid policy or unlawful policy had not been applied then the lawful policy would have applied and the lawful policy would have produced the result of imprisonment? It is as simple as that, is it not?

MR GARRISSON: Yes, your Honour. It is straightforward.

GAGELER J: It is a straightforward counterfactual analysis.

MR GARRISSON: We respectfully say it is the same analysis in this matter.

GAGELER J: Have you looked at Parker v Chief Constable, to which we were taken this morning?

MR GARRISSON: Yes.

GAGELER J: Was that correctly decided?

MR GARRISSON: Well, their Lordships said not. I think the issue in Parker was of course the question of the lawfulness of the detention and the fact that, in Parker, it was labelled as an essential integer in the exercise of the power of arrest. I am sorry, that was Roberts – my apologies, your Honour. Parker - the arresting officer had no personal knowledge of the reasonable grounds. The Court of Appeal led by Sir Brian Leveson said that there was a distinction between underlying substantive requirements and process.

GAGELER J: I am really asking whether that is a correct application of Lumba as you would have us adopt it in this Court.

MR GARRISSON: We would not take it that far, your Honour. We do not believe it is necessary to take it that far in this case. Naturally, a question of the application of Lumba has arisen in a range of circumstances which have involved the exercise of discretion, the application of a policy, where there are conscious decisions or maybe subconscious decisions made about subjective satisfaction of a range of matters.

GAGELER J: So what is the counterfactual in this case?

MR GARRISSON: The counterfactual in this case is that if the Board had taken a step to satisfy itself that the appellant was aware of or had received the correspondence in question on the decision of the court of first instance that would have been sufficient to satisfy the obligation of procedural fairness. In the 2013 judgment of his Honour he perhaps acknowledged that on its face simply delivering the letters by mail meets the requirements at law but because of the matter in issue his Honour took the view that the Board had to take a further step.

GAGELER J: Why I ask, Mr Solicitor, is that there seems to me to be a difference between the primary judge and the Court of Appeal on the counterfactual analysis. What the primary judge seems to do is to take the decision that was made and assume that the vitiating public law error had not occurred. What would the decision made have been? That is a different analysis, I think, from the Court of Appeal which says if the invalid decision had not been made what would have happened and then you look to the statute to see that there was a requirement to make a decision and that the only lawful decision that could be made was the one that was, in fact, made. But they start at different points and they look to a different counterfactual scenario.

MR GARRISSON: They do, your Honour. The respondent’s position is that the counterfactual is that the Board, which was the decision‑maker, did not commit the wrong that it in fact was found to have invalidated its decision.

GAGELER J: Well, that is the Parker v Chief Constable of Essex approach. You take the same decision‑maker, same circumstances, but make him get the law right in the counterfactual.

MR GARRISSON: The question really, your Honour, is different. In Parker it was a different arresting officer. It was a different decision‑maker. There were different parties involved. The issue with Parker was that the investigating officer, who was the person to have executed the arrest, was in fact not available and so another officer who had no personal knowledge of the reasonable grounds effected the arrest.

Now, we do not put the respondent’s position in this case as highly as saying, “Well, that is all okay” because we are not running an argument where there would be a different decision‑maker. It is the same decision‑maker, only they would get one small thing different.

EDELMAN J: Your approach is really Hemmati rather than Parker, is it not? It is the subsequent Supreme Court decision in Hemmati?

MR GARRISSON: Yes, it is, your Honour, and although Hemmati ended up dealing only with the question of the lawfulness of the detention there were some views expressed about what the likely outcome might be.

EDELMAN J: But the point in Hemmati is the counterfactual is assessed on the basis of the existing legal framework, not on the basis of what might have been done in enacting new regulations.

MR GARRISSON: Correct, your Honour, with respect.

GORDON J: Is that the way that Lord Kerr deals with it in Lumba at paragraph 253 where he sets out the counterfactual there?

MR GARRISSON: Lord Kerr’s counterfactual – if I may. Excuse me, your Honour, which paragraph were you looking at?

GORDON J: At 253 his Lordship says – he draws a distinction between those that:

would have been released and those where it can be shown that they would have been lawfully detained, had the correct procedures been followed.

MR GARRISSON: Yes. That is correct, your Honour. That, in fact, encapsulates the distinction. There is, we say, on this case, a clear distinction because the appellant was always going to be imprisoned. The counterfactual, to use the terminology, is really not much of a counterfactual at all, simply because there was a duty and an obligation to cancel the appellant’s periodic detention thus enlivening the sentence for imprisonment that had been imposed by a court.

That places this case in a different category to pretty much all of the cases that have been argued to date and, in particular, in the United Kingdom where it is not about is there a reasonable satisfaction about a power of arrest or a power of detention. It is that there is a lawful order for detention that operates once the adjustment is made for the correct decision – or the appropriate decision to have been.....by the Board.

KEANE J: But even before the Board makes its decision, once Mr Lewis failed to attend his periodic detention, and certainly when he absconded from New South Wales, he was unlawfully at large, was he not?

MR GARRISSON: He was failing ‑yes, to the extent that he was failing to fulfil his obligations for periodic detention and thereafter amenable to arrest.

KEANE J: Yes. He was amenable to arrest without warrant. Was he guilty of an offence under section 162 of the Crimes Act in that he failed to return for his periodic detention without permission?

MR GARRISSON: I believe that would be correct, your Honour, but the point was never taken and he was never charged ‑ ‑ ‑

KEANE J: So, no, no – I realise the point was not taken ‑ ‑ ‑

MR GARRISSON: Yes ‑ ‑ ‑

KEANE J: But we are being regaled with an argument about his right not to be unlawfully imprisoned, but looking at it from the other side, once he disobeyed the orders for his periodic detention he was unlawfully at large, was he not, at least in respect of those occasions when he did not present himself?

MR GARRISSON: Yes, your Honour.

KEANE J: And thereafter, having not presented himself, he was absent without permission, absent from his correctional centre without permission which might be thought to have been a breach of section 162 of the Crimes Act.

MR GARRISSON: I would need to reflect on that, your Honour, but the essence of it is that his failure to attend comprised a breach of his obligations and warranted a process that the Board commenced, and his failure to attend led to the issue of a warrant for his arrest.

KIEFEL CJ: Yes.

MR GARRISSON: Would your Honours - is that a convenient time?

KIEFEL CJ: Yes, thank you. The Court will adjourn until 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Solicitor.

MR GARRISSON: Thank you, your Honours. If I might take us back to the few minutes before I concluded before lunch, there were questions arising by Justice Keane, Justice Gageler, and Justice Edelman, and I thought I might just revisit those issues briefly. Justice Keane raised the question as to whether there was an offence under 162 of the Crimes Act 1900. I do not believe there is. That relates to absences from a detention facility when you are actually under detention, however the appellant was amenable to an arrest without warrant by a police officer under section 64 of the Crimes (Sentence Administration) Act, if that police officer believe that a breach of periodic detention obligations had occurred.

Justice Gageler, in relation to the possible difference between the primary judgment and the Court of Appeal, the counterfactual, as identified by Justice Refshauge at paragraph 336 of his judgment is, we believe, the correct counterfactual. The Court of Appeal admittedly did not address it expressly other than to say at paragraph 56 that they thought he would be inevitably detained, but the issue that it saw was that, at paragraph 68, was that the question of his liberty had not been determined in accordance with law. Given that the question of his liberty was determined by the Sentence Administration Board in the exercise of its powers, I think one can reasonably infer that the relevant factual and counterfactual involved the actions of the Sentence Administration Board.

GAGELER J: Which paragraph did you say identifies the correct counterfactual?

MR GARRISSON: For the primary judge, 336, your Honour.

GAGELER J: The counterfactual is assuming that procedural fairness had been given.

MR GARRISSON: Yes, your Honour, yes.

GAGELER J: You just correct the administrative law error.

MR GARRISSON: Yes, your Honour, and everything proceeds as it would. Had the matter, in fact, your Honour, when Justice Refshauge delivered his first decision in which he declared the order invalid the matter was to have been remitted to the Board to be re‑decided, and that is in the judgment. However, a stay was ordered in relation to any action in relation to that, hence, of course, the Board never got the opportunity to revisit the matter.

GAGELER J: Mr Solicitor, can I ask – just change the facts of this case a little and assume that the problem here was not want of procedural fairness but malice, the Board was out to get the guy. Now, does your analysis say, well, you just assume no malice?

MR GARRISSON: On the basis of Lumba where they were dealing with some fairly unpleasant circumstances, albeit I do not believe malice, in fact, I think the Supreme Court found that there was no malice even though they have done the wrong thing. We are not presented with an incidence of malice.

GAGELER J: No, that is why I am asking you – to tease out the principle.

MR GARRISSON: The principle is if there had been malice, then that would go to the quantification of the damages, I would have said, your Honour. There is an unlawful imprisonment because of an administrative error. If the administrative error occurs for whatever reason you do not seem to establish, at least on the English authorities, a scale by which you determine the blameworthiness, if you will, of the decision‑makers, unless you reach a point where you say that decision‑makers had in fact enlivened a circumstance where exemplary damages might be awarded.

GAGELER J: We are way back, Mr Solicitor. We are just at the point of asking: what is the correct counterfactual?

MR GARRISSON: The correct counterfactual is the Board making its decision correctly without ‑ ‑ ‑

EDELMAN J: As I understand your submission, your submission is, effectively, that the relevant factual analysis is those facts that make up the elements of the wrong. And so the counterfactual analysis is that you take away those facts that involve the wrongdoing and you ask: what would have happened without those facts?

MR GARRISSON: Yes, your Honour.

EDELMAN J: So the reason, as I understand your submission, that malice would not count is malice is not an element of false imprisonment. So if they had malice, you take away their false imprisonment without lawful authority. They would have done it, in any event, and there is going to be liability and substantial damages.

MR GARRISSON: Indeed, your Honour.

GAGELER J: I do not get that. If the decision was made with malice, the decision is ultra vires, is it not?

MR GARRISSON: The question becomes one of the facts, your Honour. You see, this decision was rendered void, void ab initio.

GAGELER J: As would a decision made with malice.

MR GARRISSON: Correct, your Honour, and if the decision was made by malice, then the fact of that malice would reflect in the compensation that would be payable, as indeed ‑ ‑ ‑

GAGELER J: Why, on your analysis, Mr Solicitor, would the counterfactual not be a decision made without malice?

MR GARRISSON: There was no malice in this instance, your Honour. I am a bit ‑ ‑ ‑

GAGELER J: I am trying to understand the way in which you couch the principle that is to be applied. Do we simply correct the administrative law error? If so, there cannot be any distinction between malice, on a procedural fairness error of law or any other administrative law ground, can there?

KIEFEL CJ: Mr Solicitor, if you are looking at the matter in terms of causation analysis undertaken by this Court in March v Stramare and those cases, would you say that regardless of the nature of the error it was not the cause of the loss of liberty?

MR GARRISSON: I think that is correct, your Honour, because the loss of liberty arises from the appellant’s failure to meet his obligations for periodic detention. That is a fact. And no matter what ill will the Board might have felt towards the applicant it had to determine whether or not he had in fact not met those obligations. Having found that he did not meet those obligations, cancellation was mandatory, and whether the Board, for want of a better term, had a view about the appellant or not is strictly irrelevant to that because the cancellation ‑ ‑ ‑

KIEFEL CJ: That is your point in paragraph 3 of your outline.

MR GARRISSON: Yes, your Honour. So that the point of the – Justice Gageler, what we say is the counterfactual in this matter is to correct for what occurred in this matter. There is some debate about the range and scope of the principles that have been highlighted in Lumba. And as I have already indicated earlier today, there are perhaps cases that may not comfortably sit as a result of the application of those principles.

We say ‑ and Parker may well be one of those ‑ we say it is not necessary to canvass that far to reach the appropriate decision in this case because of its facts and because of its circumstances. And which takes me onto the other point your Honour raised, and that is that we say that Parker really is not – just to confirm, Parker is not comparable to our case.

You had different decision‑makers, you had a decision or you had a judgment that actually went to the basis of the detention, of effecting the arrest. What we have – so I think it goes beyond Lumba. But in terms of our matter here, we are not dealing with something that goes to the basis of the detention, the satisfaction of the statutory requirements; we are going to a public law defect in the decision‑making that attaches to it.

Is Parker wrongly decided? Well, the Supreme Court does not seem to think so, it has referred to it in subsequent matters. So I do not know I can take that very much further, your Honour.

GAGELER J: Are you asking whether I am content with the answer? You should not have asked that question, Mr Solicitor, you move on.

MR GARRISSON: I certainly would not ask your Honour that question, but I do not know if I can in fact take that any further.

GAGELER J: Thank you.

KIEFEL CJ: Where are we then in terms of your outline, Mr Solicitor?

MR GARRISSON: Where we are is point 5 and 6. I was going to respond to the matters that Justice Edelman raised in relation to Hemmati. We would say that our case is more akin to Kambadzi than Hemmati. Lord Kitchen in Hemmati observes that a public law error will not render a detention unlawful unless the error bears upon and it is relevant to the decision. The detention in Hemmati was unlawful and damages were to be assessed. So, the question as to whether or not there will be counterfactual, actually would have effect, was yet to be determined. Whereas in Kambadzi, the procedural defect was a precondition to lawfulness and there are some observations in relation to that by Lord Kerr at paragraph 87 of his judgment, last sentence. Baroness Hale, at paragraph 77, with her usual directness, indicated that the appellant should not hold out too much hope of getting nominal damages.

I think it is reasonably clear that the respondent’s view in the present case is, in fact, a more clear demonstration of the principles than in Lumba. In Lumba, claimants were detained pursuant to an unpublished policy of blanket detention. In the present case, the appellant was detained as a consequence of the application of statutory provisions – there composed a duty to cancel linked to an underlying sentence of imprisonment. It really is almost otiose to ask what would have happened had the appellant been afforded procedural fairness or attended the Board’s inquiry. His periodic detention would have been cancelled and he would have gone to prison.

On any scenario the statutory basis of the appellant’s detention was the same. The error in this case does not go to the criteria for detention, unlike in Lumba, and it is concerned really with the procedure for authorising that detention, which is a distinction that Baroness Hale drew at page 198. There was lawful justification for the appellant’s imprisonment.

Now, as a matter of liability, there may be no distinction in principle between a detention which is unlawful because there was no statutory power to detain, and a detention which is unlawful because the decision to detain was made in breach of a rule of public law. However, that distinction assumes significance in terms of the assessment of damages. As Lord Dyson said in Lumba at paragraph 71:

If the power could and would have been lawfully exercised, that is a powerful reason for concluding that the detainee has suffered no loss and is entitled to no more than nominal damages. But that is not a reason for holding that the tort has not been committed.

And the entitlement to nominal damages cannot necessarily be assumed in every case. Lord Hope and Baroness Hale and Lord Kerr comment on that. But the principle, we say, is clear. We say it very clearly applies in this case and it has resort to the ordinary principles of compensatory principles; that is, what is the loss?

The principle has been embraced by other decisions in the United Kingdom. In our notes we refer to Bostridge, and to R(O) v Secretary of State. Bostridge is at volume 4 of the joint book of authorities, tab 25 at 1128. That was a mentally disturbed person who was unlawfully detained in hospital for 442 days. The National Health Service had no authority to detain him, but apparently there were a range of others who could have detained him under the Mental Health Act.

The Court of Appeal determined that he would have been lawfully detained and also said he suffered no loss, that is at paragraph 23, Lord Justice Vos, because the object of the compensation is to put the claimant in the position he would have been therefore damages were appropriate. R(O) was another case with lengthy detention with mental health issues. It was a rather odd case. I will take your Honours ‑ just keep your Honours the paragraph references to Lord Wilson’s judgment on behalf of the Court: 34, 35, 40 and 50.

In Australia, the principle in Lumba has been recognised. The Court has already been taken to CPCF. I will not go further than that, other than to note that obviously the observations of members of the Court were not dispositive of any issue in that matter. It was unnecessary to determine the answer to question 3.

Fernando v The Commonwealth in the Full Court of the Federal Court [2014] FCAFC 181; (2014) 231 FCR 251 which is in the joint book of authorities volume 4, tab 30 at page 1290, similarly embraced the principle in Lumba in circumstances where there was jurisdictional error in not giving the appellant the opportunity to comment on information adverse to him. The observations by Justices Besanko and Robertson at paragraph 76 and Justice Barker at 166 do not say that the principles in Lumba have been doubted.

The element in Fernando, of course, was the question of the statutory requirement to keep Mr Fernando in detention under section 189(1) of the Migration Act. It entailed an obligation to detain and not of a discretion. Special leave was granted but revoked. During the course of argument it was adverted to that there was some question about the existence of an obligation to detain the appellant with their actual right to liberty. We embrace that observation.

In the present case, an award of damages should acknowledge the commission of the public law error which did not go to the basis or criteria for detention. Circumstances where the Board was obliged to.....the appellant’s periodic detention resulting in the appellant’s imprisonment it cannot be maintained that any award of damages and should be substantial. The appellant has not shown that a declaration of right, coupled with an award of nominal damages is sufficient recognition of the seriousness of the Board’s default, an observation that his Lordship Lord Kerr made observation about in Lumba at paragraph 256. Accordingly, the respondent’s view is that the appellant has not demonstrated that the Court of Appeal erred in concluding that the appellant was not entitled to compensatory damages and false imprisonment. In our view, the first ground of appeal should fail.

I propose to move on to the second series of points dealing with the vindicatory damages. It has been expressed in some detail in our written submissions, but we say simply that the authorities upon which the appellant relies form no basis for concluding that there is a new form of damage available to a person called vindicatory damages. The concept of vindication as being something that underpins compensatory damages is so deeply embedded and well known that it is unnecessary to comment further on that. I will say that the reliance on cases dealing with indigenous property rights such as Plenty v Dillon, really have got no parallel to tortious cases where injury or loss is ordinarily demonstrated.

Rees v Darlington Memorial Hospital is referred to by my learned friend. We simply say that was not a case of vindicatory damages. It was, in fact, an award of damages that would afford some measure of recognition of the wrong that was done; that was Lord Bingham at paragraph 8 of the judgment which is at the joint book of authorities volume 7, tab 57.

Damages were not assessed in terms of vindication of a right. It was, in fact, a lost claimant of an opportunity to live her life in the way she had wished or planned. The court could not award damages that the plaintiff had sought because the position of the law in England was you could not recover damages for the birth of a child that was held healthy. But there were other losses, albeit capable of modification that the court determined that it ought to pay on its broader compensation to the plaintiff.

Damages were assessed on this basis, where a nominal award was suffice to recognise the harm that was done. A separate category of vindicatory damages raises quite considerable difficulties where there is no entitlement to compensatory damages. Even those judges or courts that have considered that a category that exists, it must embrace the overall compensation that is ordered, it cannot be stand alone. In other words, if there is compensation payable under ordinary principles, you assess that compensation.

It is relevant, in looking at quantifying such damages, if in fact they exist, to look at the nature of the infringement and therefore the conduct of the defendant. Lord Collins in Lumba at paragraph 126 refers to a number of cases in which that is discussed. The problem also lies, for the appellant, that one creates a hierarchy of rights. That is, there are some rights that you will be entitled to compensation without any proof of loss, called vindicatory damages, and others where it will not. The fundamental nature of the obligation to afford a person procedural fairness and natural justice is plainly accepted.

But the appellant does not demonstrate why declaration of the infringement of his right to be afforded natural justice does not achieve vindication in circumstances where it is accepted such an infringement did not make a difference to the outcome of the process. Unlike Lumba, this is not a case where the conduct of the Board can be described as a serious abuse of power. Nor was there a deliberate decision to continue an unlawful policy. Unlike Lumba, the illegality in this case does not go to the criteria for detention as opposed to the procedure for authorising it, nor does it attract a significant element of deterrence, as Baroness Hale observed at paragraph 217.

And to state perhaps the obvious:

A declaration, or an award of nominal damages, may itself have a vindicatory purpose –

as Lord Collins observed at paragraph 236. The appellant has not demonstrated the existence or utility of a separate category of vindicatory damages under Australian law. It has not in fact been established that it exists under English law. It is applied in a number of special cases. In particular, the constitutional cases determined by the Privy Council, in quite exceptional circumstances, where in fact the relevant Constitutions imposed a constitutional obligation to give a remedy.

In the respectful submission of the respondent, the second ground of appeal also fails. I would just like to make one other observation. The question of damages arose towards the end of my learned friend’s submissions, your Honours. The figure of $100,000, as a notional figure for damages in this matter, was really premised on what one might term the “ordinary principles” associated with assessing damages for unlawful imprisonment. That is, hurt, anguish, injury to feelings and associated matters. Yet the appellant is saying that those classic factors are to be ignored – you do not need to look at any of that, just give the appellant a large amount of money without proving any loss of that description, then that notional figure clearly has no longer any application.

EDELMAN J: I do not think the appellant says they are to be ignored. I think the appellant says, you ignore them for the purposes of a vindicatory measure and then you recover them as well after the vindicatory measure has been calculated.

MR GARRISSON: Your Honour, I think that analysis is – that proposition is not supported by the law lords who have considered the issue and who were in favour of vindicatory damages – not that you can actually determine whether there was a concluded view amongst them all or not. But, it plainly must be the case that if the position of compensation is to compensate a plaintiff for an infringement of a right or for loss or damage that they have sustained, you really need to exhaust those matters that are
capable of normal calculation, if you will, and say, yes, we are satisfied about that. This is what happened in the Privy Council cases from the West Indies. They say, there is the figure for general damages, for example, we do not think that is enough and here is an additional amount in vindication of your right.

So, if one accepts that there is to be such a concept, the calculation of it is not a binary process. It really involves a more fulsome consideration of how it is that there is an identification of loss, what the compensation should be for that loss and, also, there is an amount for the right – if one is, in fact, minded to go down that path. So, unless I can be of any further assistance to the Court.

KIEFEL CJ: Thank you, Mr Solicitor.

MR GARRISSON: Thank you, your Honours.

KIEFEL CJ: Solicitor‑General for the Commonwealth.

MR DONAGHUE: Thank you, your Honours. Your Honours, I hope you have our outline of oral submissions which indicates that there are three topics that we seek to develop orally, corresponding to the headings above paragraphs 2, 4 and 5. I propose to work my way through those three propositions which I will not summarise.

Can I ask your Honours to start by turning to the Commonwealth’s written submissions at paragraph 8? It is just a convenient place to find what we submit is the critical starting point in this appeal, which is the uncontested nature of the compensatory principle that governs the award of compensatory damages in tort and contract.

When your Honours have paragraph 8, you will see that we have quoted a paragraph from the joint judgment of four Members of the Court in Haines v Bendall, identifying the settled principle for the assessment of compensatory damages whether in actions of tort or contract. The principle is:

the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed.

In its terms, in our submission, that principle requires consideration of a counterfactual. What is the position in which the plaintiff would have been in if the tort had not been committed? It plays that central role in the principle because it is the counterfactual which is the foundation for the assessment of the actual loss that has been suffered by the plaintiff in any particular case, the loss being the difference between the position in which the plaintiff actually finds him or herself – the tort having been committed – and the position the plaintiff would have been in had the tort not been committed.

As your Honours can see in that statement of the principle it is expressed in its terms as a settled principle governing the assessment of damages in actions in torts generally, no subdivision by reference to the elements of the tort, whether they are able to be proved per se, actionable per se, or whether they require damage. And, perhaps not surprisingly, given that statement of the principle, there is not, as far as we are aware, any doubt that that settled principle applies to actions in false imprisonment.

And I will not take your Honours to it, but we have given you, in paragraph 3 of our outline, a reference to the Court of Appeal’s decision in Bostridge, which has been mentioned by our friends. At paragraph 20 in that case the Court of Appeal said:

The tort of false imprisonment is compensated in the same way as other torts such as to put the claimant in the position he would have been in had the tort not been committed.

EDELMAN J: There is an ambiguity, though, in those general statements of the compensatory principle in that sometimes the law will compensate by putting the plaintiff in the position as if the tort had not occurred by doing what it can to undo the wrongful acts themselves. So, in a case like detinue, goods will be ordered to be returned, even if had the tort not occurred the goods would have been destroyed anyway. But a second meaning and approach to that is that the law is concerned with putting the plaintiff in the position as if the consequences of the wrongful acts had not occurred. And it may be that some of the property cases are concerned with the first aspect rather than the second.

MR DONAGHUE: I agree with that, your Honour, and that was going to be in my short submission on the user cases. If I can defer the longer submission till then, but I agree with what your Honour puts to me.

But in the context of false imprisonment it does not seem to have been regarded as controversial in the cases, and certainly Bostridge expressly applies that same compensatory principle in the same way as it is set out in Haines v Bendall to focus as a necessary element in the assessment of damages on a counterfactual inquiry as to what the position would be had the tort not been committed.

In our submission, Lumba is nothing more or less than an orthodox application of that principle in circumstances where it was clear on the facts that, had the tort not been committed there, by reference to the application of an unpublished and inflexible policy about detention, that the published and lawful policy would have been applied and would have led to detention. So the position, had the tort not been committed, would have been exactly the same.

And that was recognised in terms in our submission in Fernando. I am aware that my friends for the respondent have just taken your Honours to that, but there are some different passages I would like to highlight to your Honours in Fernando. So could I ask you to go back to it. It is volume 4, tab 30[2014] FCAFC 181; , (2014) 231 FCR 251.

Could your Honours go to page 268 of the report, paragraph 81 which is applying the discussion from a number of the authorities, including Lumba and others. In paragraph 81 you will see – this is in the joint judgment of Justices Besanko and Robertson, with whom Justice Barker agreed, adding short additional reasons to which I will come. But in paragraph 81 their Honours record that:

the appellant had been unlawfully detained for 1,203 days –

but it was submitted that:

he could and would have been lawfully detained in any event, and it followed that he was not entitled to compensatory damages –

for that reason because he would have been detained pursuant to the duty under 189. In the last line of that paragraph you will see their Honours say:

We think that contention is correct.

And it is the next paragraph I want to emphasise, you can pass over the first sentence because Ruddock was about liability, not damages, but then their Honours say the further step that they recognise 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.

Their Honours return to that in paragraph 84, the last sentence:

as we have said, they identity a basic principle of compensatory damages which is part of the common law of Australia.

And in paragraph 86, their Honours address the counterfactual which is a topic I am about to come to as well. In the last part of paragraph 86 their Honours say – well.....the whole paragraph. We submit:

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.

So, in our submission, what is involved is not a correction or an erasing from history of the administrative law error that actually occurred. The decision that occurred is vitiated, by hypothesis, because that is why there was false imprisonment, and the counterfactual is what would have happened had that flawed decision not been made. I will develop that in a minute, but before I do that can I just note Justice Barker’s judgment at the end of the report, the last page at 284, paragraphs 168 and 169. His judgment starts on the previous page and is entirely consistent with the other members of the court, but Justice Barker at 169 rejects the idea that one could proceed on the basis that the appellant would not have been detained, because that would require an assumption to be:

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.

Now, can I develop a little bit our submission about the appropriate counterfactual, bearing in mind that the counterfactual identified in Haines requires comparison with the position in which the plaintiff would have found him or herself if the tort had not been committed. And that ‑ ‑ ‑

KIEFEL CJ: Could I interrupt you at that point, Mr Solicitor? Is the reference to the tort there the conduct, which is to say the wrong on which the whole of the tort is made out, or is it the tort as a complete ‑ the complete tort?

MR DONAGHUE: Well, your Honour’s question anticipates where I was going ‑ ‑ ‑

KIEFEL CJ: I am sorry.

MR DONAGHUE: ‑ ‑ ‑ because, in my submission ‑ not at all, your Honour ‑ but with false imprisonment we have a tort with two elements - detention, the plaintiff was detained, and there was no lawful authority for that detention. In light of those two elements there do seem, on the face of things, to be two possible comparators that would produce the result of the tort not having been committed. Either one, the plaintiff was not detained at all, because that would be a possibility that would produce the option that the tort had not been committed, or two, the plaintiff was detained but was detained in a way that had lawful authority behind it, here because the order cancelling periodic detention was made in accordance with the requirements of the Act. So, one, on the face of things, has a need to choose between those two possible ways that the tort might not have been committed.

In our submission, this case and Lumba provide reasonably easy answers to that question because in circumstances where the law requires a particular outcome to occur, and 189 of the Migration Act would be another example of this - as in Fernando, then in our submission the requirement of the law mandates the choice of the appropriate counterfactual because there would be no basis upon which the court could prefer to choose the option that the plaintiff would not have been detained at all in circumstances where that option, no detention, is not lawfully available. So because the law does not leave open the option of the tort not occurring because the plaintiff is not detained, the only hypothesis consistent with the tort not being committed is a situation where the plaintiff was detained, but that detention had occurred lawfully.

GAGELER J: Mr Solicitor, was Parker v Chief Constable of Essex Police correctly decided?

MR DONAGHUE: Your Honour, I anticipated the question was coming to that. So the example I have just given, which is my easy case, is the only one lawful option. Parker is not such a case. Parker is, in my submission, harder – and I am not going to dodge your Honour’s question, but I am just building up to our answer - because Parker is a case where there was undoubtedly a lawful power of detention available to be exercised, but it did not have to be exercised.

In our submission, that scenario throws up or raises a need to answer a factual question as to what would have occurred had the tort not been committed. So in Parker, as your Honours will recall, an officer intimately involved in the murder and rape investigation that is underway, which is an investigation where it is intended to simultaneously arrest three different people in three different parts of the country, is en route to the location of one of those people to arrest that person, and gets stuck in traffic.

That officer undoubtedly has the reasonable suspicion necessary, so had she made it to the destination by the time of the simultaneous arrests, there would have been no question that a lawful arrest would have occurred. But because she is detained in traffic, a decision is made that one of the surveillance officers already on the scene will arrest, and that arrest is unlawful because that officer does not have the relevant state of mind.

GORDON J: Is Parker explained by stating, on the way you looked at this case, that both on the facts and the law arrest was not inevitable?

MR DONAGHUE: Yes, your Honour. In my submission, that is why it is a harder case because it was not inevitable and so Parker is only right, in our submission, if the appropriate approach is to say that in a case where detention is not inevitable, when one asks the counterfactual question what would have happened if the tort had not occurred, the evidence satisfies the court that what would have happened is a lawful arrest would have occurred.

EDELMAN J: Is not the difficulty that in Parker you are applying a counterfactual which does not just subtract those elements that were wrongful, it also adds an additional fact which is that the officers are aware of what the requirements of pace were.

MR DONAGHUE: Your Honour, that is really the reason that I am seeking to analyse it by not framing the issue in terms of hypothetically adding or subtracting to the position of the officers but to say in a case where detention is not inevitable, where the law does not mandate the outcome, you just have to ask a factual question, what was going to happen. If the evidence persuaded the Court, as it may have done in Parker, for the reasons that I have tried to summarise, that what would have happened but for the tort is that a lawful arrest would have occurred, then Parker is correct.

Now, I need to qualify that a little bit in that the facts of Parker are complicated by the fact that there was not just one surveillance officer, there were two. So, if the first surveillance officer – it was found as a fact that if the first surveillance officer had not invalidly arrested the person, the second surveillance officer would have done so, so you would have had exactly the same tort repeated by a different person but in both of those cases you still have the officer with the requisite state of mind on the way who would have arrested the person and so one can see how a court might have said, well, yes, you were unlawfully detained but, in truth, you were always going to be detained once the officer with the appropriate state of mind got there.

EDELMAN J: That is not how Parker is explained in Hemmati, is it?

MR DONAGHUE: No, and what I am putting to your Honours is not – it does not jump off the page in the judgments in Parker itself. Parker itself seems to – and you see this at 104 of the judgment in Parker - denies that the question is about what would in fact have happened. Having denied that the question is about what in fact would have happened the analysis shifts into a distinction between was the public law error of a substantive kind or a procedural kind and that whole analysis, in my submission, is not one that gels particularly well with this Court’s public law jurisprudence.

It may be that one would end up with an analysis through the lens of materiality in the context of this Court’s jurisprudence that might give you a ‑ somewhat approximate the outcome in Parker in that if an immaterial error occurs then the detention would be lawful, otherwise not. But it may well be, because of the way that the reasoning in Parker is expressed, that the case would not be adopted in Australia as an appropriate statement of the law.

But, in my submission, your Honours could appropriately defer the question of whether this principle has any application and, if so, what application to cases where detention is not inevitable because the core of Lumba and, as your Honour Justice Gordon put to me – I should not put words into your Honour’s mouth – but this case and Lumba’s Case are both cases where the finding of inevitability was available and so the choice of the counterfactual is easy, as we see it, because there is no proper basis upon which the Court could proceed as if the tort had not occurred other than to say that the detention that occurred was – the comparator was lawfully occurring detention. So, your Honours could decide the – sorry your Honour.

KIEFEL CJ: Mr Solicitor, if you are right about the counterfactual – if one takes it a little further back and to focus on the decision – would it not also follow that there is no loss or damage in the sense of causation and, therefore, the tort was not complete and one does not proceed to an assessment of damages?

MR DONAGHUE: No, your Honour, because the tort was complete without loss and damage in this case.

KIEFEL CJ: No actual loss.

MR DONAGHUE: There just did not need to be any actual loss. So, your Honours might recall one of ‑ ‑ ‑

KIEFEL CJ: Yes.

MR DONAGHUE: The first issue in Lumba was whether the tort was actionable in the circumstances where there was no damage and the House of Lords – sorry, the Supreme Court – found the tort had occurred because false imprisonment is actionable per se but then no damage.

KIEFEL CJ: Yes, of course, yes.

MR DONAGHUE: So, the result is - in our submission, there was a tort but nominal damages only.

KIEFEL CJ: Quite. Thank you.

GAGELER J: Mr Solicitor, can I just take you up on the question of legal inevitability? The ultimate question, in the way in which you frame the issue, is, I think, what would have happened on the balance of probabilities if the tortious conduct had not occurred? As I understand it, you point to the legal obligation to detain as a step in answering that question and you must, I think, implicitly combine it with an assumption of regularity, that being that is what the law required, there is no reason in the circumstances to think that the law would not have been obeyed had what went wrong not gone wrong. Is that the way you put it, or is it couched at some different level?

MR DONAGHUE: Your Honour, I accept that this is a difficult issue. Certainly the way that in Fernando it is put, and Justice Barker puts it, is, I think, the second way your Honour just puts it to me together with effectively a presumption of regularity and a just - but that would seem to leave open the possibility that if evidence could be led that the law would not have been followed, that that would in some way change the relevant counterfactual.

The reason I paused before embarking on the answer is that if the counterfactual is that no tort occurred, that the tort did not occur, in circumstances where there is a legal obligation to detain we analytically cannot see how you produce the outcome of no tort unless you have lawful detention because otherwise the court would be having to proceed upon the basis that what the law requires would not have occurred and that is an outcome, we submit, the common law should not countenance. One should not be compensating someone for a difference between a situation in which they find themselves and a hypothetical alternative that the law does not allow.

So I think probably that is a complicated way of saying, your Honour, that the answer is yes, that we do ultimately identify the comparator by reference to something approximating a presumption of regularity, but we submit that that is the appropriate way to analyse the question because otherwise the common law becomes incoherent. It involves compensating people for a departure from a state of affairs that would have been unlawful.

GAGELER J: Look, I may be misunderstanding you, but I think what you are saying is that the counterfactual looks to what the facts would have been and the state of the law, including any legal obligation, is a factor that is taken into account in working out what actually would have happened as a matter of fact. Is that the way you are putting it?

MR DONAGHUE: Yes. A very powerful factor - that is a much more elegant way of putting it, your Honour.

GAGELER J: Yes. Thank you.

EDELMAN J: Although so powerful that, on the counterfactual, it can never be departed from.

MR DONAGHUE: I am unable to conceive of a situation – we have given it some thought - of when you could depart from it. So yes, it is very powerful. I suppose conceptually - and perhaps a malice‑type case might start to take you there. It might be said well, these are people – the people who are responsible for detaining here are so wilfully unlawful that to suggest that what would have occurred had the tort not been committed is compliance with the law, is obviously incorrect. That might be the sort of case that would start to create a question. But in this case there is nothing of that kind. Your Honours, that is all I sought to say about the counterfactual.

Can I turn to our second topic, which is paragraph 4, which, as we understand it, is the plaintiff’s attempt to circumvent the whole application of the compensatory principle and its inherent counterfactual and just to say there is something special about the loss of a right, or at least the loss of a right to liberty, that means that you do not ask a counterfactual question at all, which effectively means you do not apply the compensatory principle.

They say, as we understand it, our right not to be imprisoned - and it was nuanced a little in oral submissions today – or our right not to be imprisoned otherwise than in accordance with law is such that it has value that must be compensated by substantial damages quite independently of whether there are any consequences or not from the loss of the right.

We respond to that in three ways. The first way I think I can be brief about, in light of the argument that has already occurred. But we essentially make the point that your Honour the Chief Justice made early in argument to our friends for the plaintiff this morning, which is that one has to have a look at the sentence that was imposed upon the appellant in the context of the sentencing legislation that governed the regime within which that sentence was made.

So not only was he subject to a sentence of 12 months’ imprisonment to be served by way of periodic detention, but that sentence was imposed in a framework where, if he did not show up repeatedly, then that periodic detention had to be cancelled and had to be converted into a sentence that would be served full time. That is a necessary part of any analysis of the so‑called right that the appellant contends he was denied.

We submit it is possible to test the existence of the asserted right in this way. As your Honours will have seen from the facts, almost the entirety – the “almost” because there are a couple of weekends that he did serve in periodic detention, but almost the entirety of the time that the appellant actually served in a gaol for the 12 month sentence of imprisonment that he received, was the 82 days for which he now claims compensation.

Now, if those 82 days in gaol do not count towards the service of his sentence, then the result is that he effectively has not served his sentence, that he spent almost no time in gaol as a result of that sentence of imprisonment. But if they do count towards the service of the sentence of imprisonment, then the appellant is asking to be awarded substantial compensation for the same period in prison that he also seeks to credit towards the criminal sentence and that, in our submission, is a fundamentally incoherent result. The notion that you get paid $100,000 in compensation for serving part of your criminal sentence for glassing somebody in the face is, in our submission, not a sensible outcome that the law should endorse.

Your Honours will of course note that the kind of sentence that the Supreme Court of the United Kingdom had in mind, to the extent that there was even those members of the Court who would have awarded damages to vindicate the right to liberty was nothing like the $100,000 that the appellant claims in this case.

That was a period of detention of about two years in Lumba, and the various members of the court divided between thinking that £1,000 or a figure significantly less than £1,000 pounds, in one case £500, would have been the appropriate amount. So, for a period of detention many times longer than the 82 days here, the court had in mind a tiny fraction of the amount that the appellant contends would be appropriate by way of vindicatory damages.

That is the first of our response on the loss of a right point. The second, I will deal with very briefly. I would ask your Honours to go to a decision of the United States Supreme Court in Memphis Community School District v Stachura [1986] USSC 147; 477 US 299, which is in volume 5, tab 45, of the book of authorities. The reason I am taking your Honours to this is it is a decision of another ultimate appellate court in a common law tradition dealing here specifically with the notion that substantive damages should be awarded for the loss of a right, arising in the context of a United States statute that confers a statutory right of action which has been treated as creating a species of tort liability to compensate for the violation of constitutional rights.

What had happened in Memphis, in very short compass, is a teacher had been suspended for showing students – Year 7 students – films that had been approved by the school in relation to human reproduction but there had been a strong reaction from the parent body against the teacher having taught the classes which resulted in him being suspended in violation of his First Amendment rights.

He brought an action claiming compensation for the loss of those rights and the Supreme Court case concerned the appropriateness of a direction to the jury, that your Honours will see at page 302 of the report, which was a direction that followed standard directions about compensatory damages and punitive damages. Then, if your Honours can see near the bottom of page 102, a quote from the direction:

“If you find that the Plaintiff has been deprived of a Constitutional right, you may award damages to compensate him for the deprivation.

I will not read all of it, but if you pass over to the top of the next page, about six lines down, the jury was told:

You may wish to consider the importance of the right in our system of government –

The issue in the Supreme Court was, was that direction appropriate? Could you be awarded damages to compensate you just for the loss of the right, separately from any consequences, and the Supreme Court unanimously held no, that the direction was erroneous. The judgment of the court was given by Justice Powell, and if your Honours start at 305, you will see under heading “III”, the court saying:

We have repeatedly noted that 42 U. S. C. § 1983 creates “‘a species of tort liability’ in favour of persons who are deprived of ‘rights ‑

Over the top of the next page, about five or six lines down:

when § 1983 plaintiffs seek damages for violation of constitutional rights, the level of damages is ordinarily determined according to the principles derived from the common law of torts.

Three lines further down:

Punitive damages aside, damages in tort cases are designed to provide “compensation for the injury caused to plaintiff by defendant’s breach of duty.”

Over the page again, at 307, in the middle of the page:

Consequently, “the basic purpose” of § 1983 damages is “to compensate persons for injuries that are caused by the deprivation of constitutional rights.”

Then their Honours come to the core of the reasoning, which is discussing their own previous decision in Carey v Piphus, which was a case where, as you can see from that paragraph at the bottom of 307, the Court of Appeals for the Seventh Circuit had held that even where a suspension of a student:

was justified, the student could recover substantial compensatory damages ‑

and the court had reversed that holding on the basis that:

the student could recover compensatory damages only if he proved actual injury caused by the denial of his constitutional rights.

Over the top of page 308:

Where no injury was present, no “compensatory” damages could be awarded.

Then further down, about halfway down 308:

Carey establishes that such an approach is impermissible.

That is placing a monetary - sorry, I should not have passed over that. If your Honours look at the first full paragraph on 308:

The jurors in this case were told that, in determining how much was necessary to “compensate [respondent] for the deprivation” of his constitutional rights, they should place a money value on the “rights” themselves by considering such factors as the particular right’s “importance . . . in our system of government,” . . . Carey establishes that such an approach is impermissible. The constitutional right transgressed in Carey ‑ the right to due process of law ‑ is central to our system of ordered liberty . . . We nevertheless held that no compensatory damages could be awarded for violation of that right absent proof of actual injury.

If your Honours then look at footnote 11 on that page, the court explains that nominal damages are appropriate:

nominal damages, and not damages based on some undefinable “value” of infringed rights, are the appropriate means of “vindicating” rights whose deprivation has not caused actual, provable injury -

So, in the context of a highly rights protected society and a statute designed to create a cause of action akin to tort liability for compensation for violation of constitutional rights, the Supreme Court has emphatically held you do not compensate for loss of the right itself, you look for consequences. Where there are no consequences, no substantial damages are awarded and nominal damages are appropriate.

That is the very approach that one sees reflected in the Supreme Court of the United Kingdom as well and, in our respectful submission, demonstrates a consistency in comparable pinnacle courts of appeal in their approach to this question quite inconsistent with the analysis that the appellant is urging you to adopt.

Finally, on this point, responding to the rights argument, the user cases, I do not propose to go to them in any detail but we respectfully adopt two points that a number of your Honours have made in the course of argument. First, these cases are not dealing at all with a situation where the defendant who made the wrongful use of the property would have been entitled to use the property lawfully in any event. So, they provide, at best, a very loose analogy and really no analogy at all to the particular issue that now confronts your Honours.

Second, plainly the ACT did not get any use from the appellant’s liberty and, indeed, did not derive any benefit from his detention and that distinguishes most, although I admit not all, of the user cases, many of which, in our submission, can appropriately be analysed in the terms that your Honour Justice Edelman put to me earlier in my submission and that is reflected in Lord Kerr’s acknowledgement in Lumba that damages of this kind have a restitutionary‑type flavour in the user cases.

Indeed, in the case that - Mr Herzfeld took your Honours to Inverugie Investments Ltd v Hackett and I will not ask your Honours to go back to it but if you could note page 718C, the Privy Council in that case said, having discussed the user cases, which was the discussion my friend took your Honours to, that:

The principle need not be characterised as exclusively compensatory, or exclusively restitutionary; it combines elements of both.

I note also, your Honours, your Honour Justice Edelman has written about this extra‑judicially in your article on vindicatory damages and your Honour analysed many of the cases through that same lens. I say “many of them” because we recognise that some, The Mediana being an example, cannot really be explained on a restitutionary footing, but even there the focus is, in our submission, on the consequences of loss and in that case the cost of providing ‑ self‑insuring effectively by providing a spare lightship.

So all of that, in our submission, is a long way removed from the question that your Honours are asked to answer. The user cases do not provide any freestanding support for the idea that the law, as a general rule, recognises compensation for the loss of a right, independently of any consequence flowing from that loss.

Finally, your Honours, can I – and, again, I appreciate that you have been taken to it, but I would seek to take your Honours back to it to make some different points – take you to CPCF [2015] HCA 1; (2015) 255 CLR 514, which is volume 2, tab 7. If your Honours turn to the last page of the report, page 660, or the bottom of the preceding page. Mr Herzfeld took you to this, but we need to go back. Question 6 that was reserved for the consideration of the Court had two components to it. Component 1:

Was the detention of the plaintiff unlawful at any, and if so what period –

The second component of the question, beginning with the words “if so”, was:

are they entitled to claim damages in respect of that detention?

So the premise for the second part of question 6 was that the Commonwealth had lost the first part so that there was false imprisonment. The question the Court was being asked was, in the event that the Commonwealth did falsely imprison the plaintiffs, were they entitled to damages, with respect to that question? In other words that question was, in our submission, squarely raising the proposition that the Commonwealth put in support of its proposed answer to that question that only nominal damages would be appropriate.

So in a case that was positively bristling with issues, as is reflected in all of the questions that were reserved, one of the questions that was litigated between the parties was whether, if the Commonwealth had falsely imprisoned the plaintiffs, they would get anything more than nominal damages and the parties joined issue on that question – that question of substance.

The question was not is Lumba correct or not because one would not expect your Honours to rule on the correctness of a decision of the ultimate appellate court of another country. But the question was the substantive question: do you get more than nominal damages or not? The Commonwealth said no, you do not, and Lumba correctly analyses the principle. The plaintiff said, in effect, “We don’t need to tackle the correctness of Lumba; we’re still entitled to substantive damages or you should remit the question”. But the parties had joined issue on that topic, and the fact that the plaintiff chose not to challenge the correctness of Lumba or to submit that it was wrong does not say anything about what the authority of the decision would have been had the court needed to reach the question.

Ultimately, of course, we accept the majority of the Court did not need to reach the question, because the majority found the detention was lawful. For the minority, Justices Hayne, Bell and your Honour the Chief Justice, it was necessary to reach the question. None of that means that anything that was said was said by way of ratio. But, in our submission, the proper analysis of this case is that in a case where one of the questions reserved for the Court squarely threw up the question, and the parties addressed it in argument, four members of the Court made observations about the topic.

For our friends to say, as they say in paragraph 3 of their reply, that the reasoning of the four members of the Court who did so does not help at all, does not tell you anything about the correctness of Lumba, is in our submission to give insufficient regard to the considered reasoning of the Court in response to a point that was squarely raised in argument.

Now, your Honour Justice Keane in the majority, at page 512, in our submission clearly reasoned in a way that recognised the correctness of the reasoning in Lumba. The fact that Lumba was not challenged does not detract one iota, in my submission, from that fact. Your Honour was choosing to address the answer to that part of question 6, having acknowledged as the plaintiff says in paragraph 510 that your Honour did not need to. But your Honour said:

since those issues were argued by both sides, and because it is undesirable that the difficulties which confront a claim of this kind should be overlooked, it is desirable to note those difficulties.

So your Honour was pointing out for the guidance of others in the future what your Honour thought about these issues, in my submission. The analysis was that the position of the plaintiffs in CPCF was even worse than the position of the plaintiffs in Lumba¸ as your Honour explains at 512. Your Honour the Chief Justice at 325 similarly, clearly, in our respectful submission, accepted the correctness of the reasoning in Lumba – your Honour concluding at the end of 325:

In such circumstances, only nominal damages can be awarded.

That of course was an essential component in your Honour’s reasoning in circumstances where your Honour had concluded the detention was unlawful.

The other relevant judgment is that of Justices Hayne and Bell. In our submission, with great respect to our friends, it is just impossible to read their Honours’ judgment in the way that you are invited to do. If your Honours could go back to paragraph 157 on page 570. I will go back to the previous paragraphs in a minute, which is where our friends put their focus, but plainly enough, at 157, their Honours had not forgotten what they said at 154 and 155. Yet at 157, their Honours say:

Whether this is a case in which only nominal damages should be allowed should not be decided on the facts recorded in the special case.

But it is the next sentence that is critical:

Plainly, such a verdict is open in a case where a form of lawful detention was available and would have been effected.

Now, if our friends are correct that you get compensation for loss of the right itself, not only is that proposition not plain, it is not right. I think Mr Herzfeld admitted to an answer to a question your Honour
Justice Edelman asked, that it would never be appropriate in a false imprisonment case to get only nominal damages. Well, not only is - it is said in 157 that that is plainly not the case. If a form of lawful detention was available and would have been effected, then their Honours are saying nominal damages would have been appropriate.

That is Lumba. That is an acceptance of the result in Lumba. The reason that it did not follow is because on the limited facts in the special case it would not be right to foreclose the examination at trial of whether the difference between the form of detention, both as to place and conditions, actually effected, may warrant more than nominal damages.

In other words, when you have a trial it might prove that actual damage occurred. Why: because while you would have been detained in both places, detention on a boat at sea is not the same as detention in a mainland detention centre. So it might have been the case at trial that it could have been shown that there was an actual difference, a real consequence of detention in one form, rather than another that might have warranted an award of substantial or more than nominal damages.

But, in our submission, at the level of principle, the sentence beginning “Plainly” is only explicable as recognising that in some circumstances where lawful detention was available and would have been effected, absent something to show more, then only nominal damages would be paid.

So that while we of course accept that CPCF does not resolve the issue, because all of that is obiter, in our submission your Honours should treat this as a judgment where the only four members of the Court who looked at a point that was squarely raised all reasoned in a way that is only consistent with acceptance of the correctness of the proposition that that case had decided. Your Honours, unless there are any further questions those are our submissions.

KIEFEL CJ: Thank you, Mr Solicitor. Yes, Mr Herzfeld.

MR HERZFELD: Thank you, your Honour. There are five points in reply. The first point is that the Territory is, with respect, wrong to submit that the Magistrates Court sentence provided a lawful justification for the appellant’s detention. If that were so, there would have been no tort. The appellant, under the regime as it then stood, could be lawfully imprisoned if, and only if, the Board validly cancelled the periodic detention that had been ordered. That is not answered, with respect, by the prospect that he might have been arrested without warrant. In fact, he was not. Unless and until the process of the law validly authorised his imprisonment he was entitled to his liberty.

KEANE J: Do you submit that he was lawfully at large after the first time he failed to comply with the sentence?

MR HERZFELD: Yes. Until the process of law was validly applied against him so as to authorise his imprisonment, he was not allowed to be imprisoned.

KEANE J: In relation to that, do you submit that he could have obtained habeas corpus if he had been apprehended?

MR HERZFELD: If he had been apprehended and that apprehension was lawful, then of course he could not have obtained habeas corpus ‑ ‑ ‑

KEANE J: But he could not have obtained habeas corpus even before the Board lawfully determined to cancel his periodic detention.

MR HERZFELD: Well, before that he was at liberty when he was not serving his periodic detention ‑ ‑ ‑

KEANE J: But he could not have protected that liberty or sustained it. To put it another way, the extent of his right to be at liberty might be measured by his ability to get habeas corpus and he could not, could he?

MR HERZFELD: Well, as I say, habeas would not be the issue because he was at liberty but if, for example, he had sought a declaration at that point to say am I entitled to be at liberty unless and until the Board validly cancels it, he would have obtained that declaration.

KEANE J: But take the point, if he had been apprehended and sought habeas on the basis that the Board’s decision to cancel his periodic detention was infirm because it was made without procedural fairness, if at that point he had sought to obtain habeas he could not have obtained habeas corpus, could he, because he was under sentence of imprisonment and there is no way any court would have given him habeas corpus given his previous conduct.

MR HERZFELD: Well, there might have been discretionary considerations but the question of whether he could persuade the court he was entitled at that point to his liberty, the answer is he would have been. Unless and until there was a valid decision he could not be in prison. That is the unchallenged premise of the present debate. It is also likewise irrelevant to refer, as the Commonwealth Solicitor‑General did, to the facts effectively that the appellant served in prison the same number of days that he should have done.

KEANE J: Mr Herzfeld, coming back to my question, the answer you have given me really is to the effect that your client could never have actually been dealt with because he could have got habeas corpus that would have put him in a position, once again, to abscond from the ACT.

MR HERZFELD: No, with respect. If the Board had conducted a valid meeting, he would have been lawfully in full‑time imprisonment.

KEANE J: That is right, that is right, and pending the Board’s decision when your client would no doubt have had all the procedural fairness he required, he could not have got habeas corpus so that he would have been at liberty and, therefore, outside the Board’s power.

MR HERZFELD: Does your Honour mean if he had been arrested without warrant?

KEANE J: Yes.

MR HERZFELD: Yes. But that is because the power of arrest without warrant, and the provisions associated with that, would have provided a separate source of authority to detain him. But that did not occur. So, there was, in fact, no time during the 82 days when the law authorised the imprisonment to which he was subject.

It is likewise no answer to say – as the Commonwealth Solicitor‑General did – that he spent the time in prison that he ought to have done. That just does not change the fact that his right not to be imprisoned was infringed for the 82 days. It is, with respect, a different kind of counterfactual analysis which, for the reasons that we have given, simply does not engage with the question of infringement of rights.

That then brings me to second reply point which is the counterfactual, and the view in Parker, which reflects the view in Lumba at paragraph 253, as your Honour Justice Gordon pointed out, is that on the counterfactual one assumes procedures were followed properly and on this view one does not ask whether or not as a matter of fact procedures would have been followed properly, rather that is assumed.

Now, that is not the enterprise in which one ordinarily engages when one is considering a counterfactual. Really it assumes away all potential unlawfulness and it could be relied upon in almost any wrongful police arrest case. For example, it could have been relied on in Christie.

The Territory seeks to defend that form of counterfactual through the looking glass, if I can put it that way. The Commonwealth does not. The Commonwealth Solicitor‑General made, with respect, a valiant attempt to torture Parker into saying precisely the opposite of what it says, but then really reintroduces the same idea through the backdoor by referring to the presumption of regularity and the almost insuperable power, it seems, of the legal regime.

Now, we of course resist both conceptions of the counterfactual because neither engages with, one, the infringement of rights that occurred ‑ and on the counterfactual would not have occurred ‑ and, two, the difficult questions of causation presented by alternative causes that are simply swept away by referring rather glibly to a counterfactual or “but for” analysis.

On the topic of the counterfactual there really is no distinction between cases like this where it is found that lawful detention would have been inevitable but for the unlawful detention, and cases where that is found simply on the balance of probabilities. This case cannot be simply immunised as a case about inevitability.

The conclusion in Lumba was not some special rule of policy, said to be based on notions of inevitability. Rather, it was and is defended by the Territory and the Commonwealth as an application of principles of causation. But in civil proceedings, questions of causation are determined on the balance of probabilities, including counterfactual findings. That was precisely what this Court said in Sellars v Adelaide Petroleum at 353, and also 363 to 365. It was applied by this Court in Tabet v Gett to the counterfactual question of whether earlier medical treatment would have made a difference to the plaintiff’s brain damage.

If a Lumba approach is correct, if it is found on the balance of probabilities – not inevitably, on the balance of probabilities – that lawful detention would have occurred but for the unlawful detention, as a matter of principle only nominal damages must result. So this case cannot be quarantined in the way that was suggested to your Honours by the Commonwealth Solicitor‑General as one dealing only with inevitability.

The third reply point concerns CPCF. With respect, it is a wrong approach to precedent to rely on statements made in cases where points were not in issue and not the subject of argument. For that we rely on what was said by this Court in CSR v Eddy at paragraph 13. There was no issue in CPCF whether Lumba should be followed. It was not argued, it was not squarely raised – which I think was also language used. So unsurprisingly, the reasons in CPCF simply do not address the issue.

KIEFEL CJ: Mr Herzfeld, are you suggesting that four Justices of this Court volunteered commentary on a matter which was not raised by the parties?

MR HERZFELD: No, I am suggesting precisely the opposite, which is that your Honour’s reasons cannot be understood as commentary on the correctness of Lumba precisely because it was not raised by the parties. It was not a question on which the parties joined issue. So consistently with CSR v Eddy, and frankly the terms of the relevant reasoning, the reasoning just does not engage with the question, which was not asked, whether Lumba should be followed.

KIEFEL CJ: But you must be suggesting that the Justices also assumed the correctness of Lumba, are you?

MR HERZFELD: Indeed, indeed, because it was not argued, and that is why we referred in our reply submissions to cases being authority for what they decide, not for what is assumed. So we do say that ultimately this case is the case that has to resolve that question, not what was said in CPCF.

The fourth reply point concerns the position in the United States, and in particular the Memphis Community School District Case. We make three points about the position there. The first is that the court was interpreting a US statute, 42 USC § 1983, and the Supreme Court there characterised the purpose of that statute in a particular way. Your Honours can see that at page 307 of the Supreme Court’s reasons.

That particular characterisation of the purpose of that statute rather drove the conclusion. So first, it really is a case about the interpretation of a particular statute. Secondly, the court drew analogy with the US approach to torts cases, and that approach may well not be the same as that reflected in cases like Inverugie, on which we rely. So the legal context for the decision may well be different, and certainly the legal context for the enactment of the particular US statute is likely to have been different. That is suggested by the reference to “nominal damages” in the opinion of the court, with no reference to anything like the user cases to which we have referred.

The third point is the position is not quite as black and white as it seems. Your Honours can see in the reasons of Justice Marshall, with whom Justices Brennan, Blackmun and Stevens join, some nuance to the position reflected in the opinion of the court. Their Honours concurred in the opinion of the court so they certainly did not perceive themselves to be differing from that opinion in a substantive way but from pages 314 to 315, Justice Marshall explained why in some cases violation of a right itself constitutes injury and your Honours particularly see what is said in the middle of page 315. So, we do submit that the US position does not really assist your Honours in the resolution of this case.

The fifth and final reply point concerns the compensatory principle and the Commonwealth, of course, places significant emphasis on this principle as does the Territory. It is obviously, just to clear away one point, not right for some kinds of damages. It is not relevant for exemplary damages and obviously if the exception of vindicatory damages for which we contend is accepted it would not be the applicable principle for that head of damages.

Putting aside those exceptions, nonetheless, the compensatory principle has to accommodate the cases which, at first sight, do not readily fit within it. And, as I said in‑chief, we collected, frankly, quite a number of them in paragraph 35 of our written submissions. One such category deals with infringement to rights, and none of the cases, Lumba, Bostridge, Fernando, have grappled with this category of case, nor have they grappled with the difficulties presented by alternative causes, another category of case, which appears at first sight to violate the compensatory principle.

In our submission, those two paths are alternative ways to the conclusion for which we contend, which is nonetheless consistent with the compensatory principle, as revealed by the cases which support those two alternative paths to that conclusion. Unless there are any questions, your Honours, those are the five points we would seek to make.

KIEFEL CJ: Thank you, Mr Herzfeld. The Court reserves its decision in this matter and adjourns to 10.00 am tomorrow.

AT 3.51 PM THE MATTER WAS ADJOURNED