Dear Colleagues;

In an important and interesting torts decision today, Lewis v Australian Capital Territory [2020] HCA 26 (5 August 2020) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA//2020/26.html , the High Court of Australia has ruled unanimously that there is no separate ground of “vindicatory” damages in the law of torts. However, there are interesting differences of approach taken to a number of matters which will no doubt be debated for some time to come! A number of list members and former members are cited in the judgements (Jason Varuhas in particular, of course, who has written on this area extensively.)

The facts are a bit complicated. Summarising as best I can, Mr Lewis was sentenced to full time imprisonment for a “glassing”, but was permitted to serve his sentence by way of “periodic detention” by turning up on weekends, under strict conditions. He failed to meet those conditions, and under the legislation the local “Sentence Administration Board” met to determine that he should be confined to full-time imprisonment as a result of his breaches. But he was able to persuade a Justice of the Supreme Court of the ACT that the meeting that determined this was invalid as he had not been given proper notice of it (a decision that the High Court regarded as odd but was not challenged.) So, he had been unlawfully detained for a period of 82 days. Of course he could have been lawfully detained for that time if proper procedures had been followed. The question was whether he was entitled to a substantial award of damages to vindicate his right not to be falsely imprisoned, or whether an award of “nominal damages” was sufficient to mark the wrong that he had suffered.

All of the 5 members of the Court agreed that no substantial award of “vindicatory” damages was available. There was a division of opinion as to whether there was even a possible claim for compensatory damages at all. In what I think is a somewhat odd, joint, decision, Kiefel CJ and Keane J held (I think) that since he was subject to an over-arching order of full-time imprisonment at all times, then he had no liberty to be interfered with and there was clearly no harm to be compensated. One of the odd features about this is that their Honours do concede at [13] that: “That the appellant was falsely imprisoned is the unchallengeable basis on which the matter comes before this Court”. I find this hard to line up with their other comments.

The other 3 members of the court (separate decisions from Gageler, Gordon and Edelman JJ) seem to hold, by contrast, that the plaintiff did have “residual liberty” despite his head sentence, and that there had been an interference with that liberty once it was conceded that the Board’s decision to revoke the periodic detention regime was held to be illegal. But all reject the need for a new head of “vindicatory” damages, holding that the existing options for damages awards (especially exemplary damages but also aggravated, nominal and “ordinary” compensatory damages) are adequate to deal with the concern to mark the court’s disapproval of a wrong and vindication of the rights of the plaintiff. The appropriate “counterfactual” to be considered for the purposes of a compensatory damages award involves considering what the situation would have been if the wrong (here the unlawful Board meeting) had not taken place; here there would have been lawful Board meeting and Mr Lewis would have been imprisoned in exactly the way that he actually was. Hence he suffered no measurable harm and an award of nominal damages (and a declaration) adequately vindicated his rights.

The three “majority” decisions are all well worth careful reading; I think the main one is that of Edelman J and this as usual contains many interesting insights into the nature of remedies and an interesting discussion of the difference between remedies which seek to “rectify” a wrong, and those which provide “compensation”- see [140]ff.

In the end the majority approach in the UKSC decision in Lumba and the comments of Lord Dyson in that decision are accepted as correct by the Court. A fascinating case well worth careful reading.

Regards

Neil

 

 

 

NEIL FOSTER

Associate Professor, Newcastle Law School

Acting Program Convener, LLB(Hons)

 

Faculty of Business and Law

409 Hunter St

Newcastle

 

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

 

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828 

Blog: https://lawandreligionaustralia.blog

 

 

The University of Newcastle (UoN)

University Drive

Callaghan NSW 2308

Australia

 

CRICOS Provider 00109J