On 24 November 2017 Jagot J of the Federal Court found that the applicant had been unlawfully imprisoned by the Commonwealth for almost three years, but awarded him only $1 in general damages.
If it is asked what could and would have happened had a tort not been committed, and the answer is the plaintiff would have been detained in any event, this case is authority for the principle that only extremely nominal damages should be awarded.
Mr Guo, the applicant, was born in China. He travelled to Australia in 1988 on a student visa, and then stayed in Australia on a number of temporary permits. On 29 February 2012 the applicant was notified by the Commonwealth of the decision to refuse his application for permanent entry. He was taken into Villawood detention centre as a suspected unlawful non-citizen and detained there until 26 September 2014. On 3 December 2014 he was detained again as an unlawful non-citizen and held at Villawood again until 6 March 2015.
The applicant claimed damages in the federal court against the Commonwealth for false imprisonment in respect of both periods at Villawood.
At trial, the Commonwealth conceded that its notices to the applicant of 29 February 2012 and 3 December 2014 both unlawful / invalid, as both notices stated the appeal period incorrectly. As a consequence, it was common ground that the applicant continued to hold a temporary entry permit at all times and was never an unlawful non-citizen
Pursuant to the Migration Act, if an officer reasonably suspects a person is an unlawful non-citizen, the officer must arrest that person. The Commonwealth submitted that even though the applicant was not an unlawful non-citizen, the arresting officers believed on reasonable grounds that he was, and therefore his arrest was lawful.
His Honour Jagot J rejected those submissions and found that the Commonwealth arresting officers did not have reasonable grounds to suspect that the applicant was an unlawful non-citizen, in circumstances where the applicant had not been given a proper notice and in fact held a temporary entry permit. Although the arresting officers were not aware that the applicant in fact held a temporary entry permit, their belief was not objectively reasonable in all of the circumstances, including the Commonwealth’s inadequate policies, procedures and practices in this regard. The arrest and subsequent detention were thus entirely unlawful.
The applicant was unlawfully deprived of his liberty for 2 years and ten months. He was held in maximum security, subjected to pat-down searches, handcuffed on occasion.
The Commonwealth submitted that the applicant should not receive damages for false imprisonment when he would have been detained in any event had correct principles and lawful policies applied. If the Commonwealth had not erred in advising the applicant of an incorrect appeal period, the notices denying his application for permanent entry would have been valid, his temporary protection visa would have come to an end, and he would have been lawfully detained at Villawood. His detention was “inevitable”.
Jagot J accepted that submission, following Fernando v Commonwealth of Australia  FCAFC 181 and held that only nominal damages were recoverable in the circumstances. At : “Damages are to be assessed on the basis that [the applicant] is entitled to be compensated by being put in the position he would have been in had the tort not occurred.” Jagot J awarded the applicant $1.00. Had Jagot J not accepted that the applicant was entitled to nominal damages only, he would have awarded $380,000 in general damages to the applicant.
The applicant was not entitled to aggravated damages, on the basis that he would have suffered the same ‘hurt feelings’ from the imprisonment had the tort not occurred.
The applicant was entitled to exemplary damages in the sum of $35,000 to punish the Commonwealth’s wrongdoing in contumelious disregard of the applicant’s rights.
It is open to rely on this line of authority to argue that, where a person is found to have been falsely imprisoned because of breach of procedural requirements only and, where the person would have been imprisoned lawfully had the error not occurred, that person should only be entitled to nominal damages only.
Jagot J invited the parties to make submissions in relation to whether Section 3B(1)(a) of the Civil Liability Act (NSW) applied and, therefore, whether damages for false imprisonment should be determined pursuant to the Civil Liability Act. This confirms judicial interest around this issue as evidenced in the recent case of State of New South Wales v Le  NSWCA 290.