Manus Island - The High Court of Australia in S156/2013

Yesterday's judgment of the High Court in S156/2013 in my view falls short of a disaster for asylum seekers detained on Manus Island and in Nauru. It is carefully circumscribed to limit its findings to the case as stated. It seems to me that it leaves it open to the Court in a different case to find that the Commonwealth's participation in the detention of aliens on Manus and in Nauru falls outside the aliens power conferred by the Australian Constitution. The judgment is limited to a finding that provisions in the Migration Act that allow the Commonwealth to remove asylum seekers from Australia are lawful. It could in the future, as could the National Court of Papua New Guinea, find that the detention arrangements in that country are not supported by the aliens or any other power in the Australian Constitution and are unlawful so far as Australia is concerned.

How nominal is “nominal” in nominal damages?

In Fernando v Commonwealth (No 5) [“Fernando”] the trial judge, upon remittal by a Full Court, awarded the applicant nominal damages of $1.00 after a finding that he had been falsely imprisoned by the Commonwealth for 1,203 days. 

His Honour held that Mr Fernando had suffered no damage or loss sounding in substantial damages, as it had been open to the Common-wealth to have lawfully imprisoned him had it so chosen.  The damages award was upheld by a second Full Court.  

Mr Fernando’s litigation representative has applied for special leave to appeal on the question of whether an award of nominal damages was appropriate in the circumstances.  However, the question remains: did an award of $1 amount to nominal damages, or was it rather not consistent with an award of contemptuous damages?

In New South Wales v Stevens[“Stevens”] the State appealed against an award of $10,000 by way of nominal damages after the State had admitted liability.  The Court of Appeal considered the circumstances in which an award of nominal damages was appropriate, and then determined the appropriate amount for such an award.  After considering the cases,  it concluded that in 2012 nominal meant, for the purposes of the case under consideration,  $100, and substituted that amount for the $10,000 ordered by the primary judge.

In Kambouris v Tahmazis, after considering Stevens, the trial judged concluded, subject to the submissions of counsel, that an identical award would be appropriate in that case.

The vast disproportion between the award in Fernando, and the awards in the other two cases, suggests that primary judge in the former may have misunderstood the distinction between nominal damages and contemptuous damages, an award of $1.00 being more appropriate to an award of contemptuous damages.  In Habib v Nationwide News Pty Ltd (No 2) the Court of Appeal noted, citing Connolly v Sunday Times that: “Contemptuous damages  are tantamount to an expression of disapproval of, or contempt for, the plaintiff.”  That the primary judge ordered the Commonwealth to pay Mr Fernando’s costs on an indemnity basis is hardly consistent with any such disapproval.

As the Court of Appeal noted in Habib the authorities that refer to contemptuous damages tend to refer to amounts of one shilling:  Connelly v Sunday Times; a farthing:  Martin v Benson; or a halfpenny:  Pamplin v Express Newspapers Ltd (No 2).   Their Honours concluded that:  “A comparable amount in Australia would be $1.”

On the authorities, Mr Fernando has been short changed in more ways than one?

The Seventh Egg - A cautionary tale

Many years ago, in the halcyon days when I spent summers in Europe on full pay, I invited an American friend for a meal in my Geneva studio.  As the cooking facilities were limited to a hotplate, the centrepiece was to be a Western omelette with seven or eight eggs.  Now, my mother - mothers know best - always broke eggs separately.  I had abandoned that habit along with drying dishes, saving time by breaking eggs into the same dish, frypan, or whatever.  

I did so on this occasion, but the seventh egg was rotten.  I had to throw the lot out.  I then found that I was out of eggs.  I don't recall what we ate, but it was a valuable learning experience.  All these years later, I still check my eggs by breaking them separately.

But what does this have to do with the practice of law?  I am fussy about formatting.  I like a page to look right.  But recently I had cause to look at a document that I had already filed, and found that in two justified paragraphs three or four words had been spread out right across the last line.  It looked sloppy.

Unlike the omelette,  it had been filed and it was too late to throw it out, notwithstanding the seventh egg.  But I had failed to check with sufficient care.  There are many seventh eggs: the typos that spell check has not picked up, and that smell as bad as that seventh egg; the incorrect citation; there are plenty of them.  Time spent checking for them is time well spent.  They can then be thrown out before spoiling the omelette.