By Christopher Croese -
Snapshot
- In New South Wales v JR, the Court of Appeal unanimously applied Lewis v Australian Capital Territory to deny substantial compensatory damages to suspects wilfully detained beyond the investigation period prescribed by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
- This further entrenches the use of counterfactual reasoning when assessing compensatory damages for false imprisonment.
- This raises questions about the effectiveness of the trespass doctrine to protect citizens from violations of common law rights by the state and provide adequate compensation for the violation of such rights.
In Lewis v Australian Capital Territory [2020] HCA 26 (‘Lewis‘), the ACT sentenced Mr Lewis to periodic detention for inflicting actual bodily harm. Mr Lewis breached conditions of this periodic detention. Sentencing legislation obligated the Sentence Administration Board (‘SAB’) to consequently commit Mr Lewis to full-time detention after holding an inquiry, which it did. However, it failed to provide Mr Lewis natural justice before ordering his full-time detention and, therefore, the Supreme Court found the ACT falsely imprisoned Mr Lewis for 82 days.
At trial, Refshauge J awarded Mr Lewis $1 nominal damages for the false imprisonment. His Honour held that, if Mr Lewis had not been falsely imprisoned, then, in the counterfactual world without the false imprisonment (‘the counterfactual’), the SAB would have acted properly and lawfully imprisoned Mr Lewis as it was legally obligated to do. His Honour further held that, if he were wrong in awarding just nominal damages, he would have ordered $100,000 in general damages.
The Court of Appeal agreed with the award of nominal damages.
