Rosalina Melena Louis, Graham James Louis, Ferdinand Graham Louis I By His Next Friends Rosalina Melena Louis, Graham James Louis, Rachael Rose Louis By Her Next Friends Rosalina Melena Louis and Graham James Louis, Murray Daniel Louis By His Next Friends [1987] ACTSC 36 (29 May 1987)

SUPREME COURT OF THE ACT

ROSALINA MELENA LOUIS, GRAHAM JAMES LOUIS, FERDINAND GRAHAM LOUIS I by his
next friends ROSALINA MELENA LOUIS, GRAHAM JAMES LOUIS, RACHAEL ROSE LOUIS by
her next friends ROSALINA MELENA LOUIS and GRAHAM JAMES LOUIS, MURRAY DANIEL
LOUIS by his next friends ROSALINA MELENA LOUIS and GRAHAM JAMES LOUIS v. THE
COMMONWEALTH OF AUSTRALIA and QANTAS AIRWAYS LIMITED
S.C. No. 1029 of 1985
Wrongful Arrest

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Wrongful Arrest - False imprisonment - Plaintiffs deported from Hong Kong to Australia at request not direction of Hong Kong Authorities - Relevant legislation specified "directions" - Whether forced carriage of plaintiffs on aircraft a wrongful arrest and false imprisonment.

Webster v. McIntosh, [1980] FCA 128; (1980) 32 ALR 603.

HEARING

CANBERRA
29:5:1987

ORDER

There be judgment for the first defendant against the plaintiffs and each of them.

The plaintiffs pay the first defendant's costs of and incidental to the action, those costs to be taxed.

Entry of judgment in favour of the plaintiffs against the second defendant be deferred.

DECISION

The plaintiffs claim damages in respect of a number of torts allegedly committed against them. They plead in the first paragraph of their amended statement of claim that Rosalina Melina Louis (the first plaintiff), Ferdinand Graham Louis I (the third plaintiff) and Rachel Rose Louis (the fourth plaintiff) are Philippine citizens, that Graham James Louis (the second plaintiff) is a stateless person and that Murray Daniel Louis (the fifth plaintiff) is a United Kingdom citizen. The third, fourth and fifth plaintiffs are infants who sue by the first and second plaintiffs, their parents.

2. The first, third and fourth plaintiffs were born in the Philippines. On 24 January 1982 the first plaintiff held a Philippine passport issued on 10 March 1981 and valid until 9 March 1983; the third plaintiff held a Philippine passport issued 25 August 1980 and valid until 25 August 1982; the fourth plaintiff held a Philippine passport issued 20 October 1978 and valid until 19 October 1982. The fourth plaintiff was born in Hong Kong on 14 February 1981 and is described in an emergency passport, issued apparently by the British Passport Office, Hong Kong, as a "British Subject: Citizen of the United Kingdom and Colonies". That document was issued on 18 January 1982 and was available for a single journey only to Australia. It bore a note that its possession was not conclusive evidence of national status. Had, however, the destination shown on it been the United Kingdom, the fifth plaintiff would have been assured of admission there without further formalities.

3. Each of the three Philippine passports bore a visa entry which, omitting identification numbers, was in the following terms:-

"Australia Temporary Visa

This visa does not authorise entry to
Australia. ENTRY is subject to the grant of
an ENTRY PERMIT on arrival.
HONG KONG
Valid for ONE Journey by the Holder BEFORE 28
FEB 1982
Class C1 C2
Stay of/until: SIX MONTHS
(Signature)
Authorised Officer 18 JAN 1982"

Each visa was stamped with the seal of the Australian Commission, Hong Kong.

4. Each passport bore a further indorsement as follows:-

"Department of Immigration
Permitted to enter Australia on 25 JAN 1982
To remain for six months
Melbourne Airport 72."

The emergency passport issued to the fifth plaintiff bore a similar visa, seal and entry permit stamp.

5. The second plaintiff was born in Australia, apparently in Sydney, on 6 August 1946. The details just furnished appear from a copy of a Document of Identity, Exhibit A, tendered by the second plaintiff without objection. The Document of Identity, issued on 19 January 1982 at Hong Kong by an officer duly authorised by the Australian Minister for Foreign Affairs, was said on its face to be in lieu of a passport in respect of the second plaintiff for travel to Australia. It bore the following remarks:-

"This document is valid for single journey to
Australia. Bearer previously travelled on
Australian Passport No. K 260252 issued in
Brisbane Qld. on 26 Mar 1976, whereabouts
unknown. Valid to 10 Feb 1982."

6. I am satisfied on the evidence that on 24 January 1982 all of the plaintiffs except the second were deported from Hong Kong to Australia, travelling on an aircraft operated by the second defendant. They disembarked temporarily at Sydney and were later carried to Melbourne where their entry into Australia was, as indicated, formally effected.

7. I am also satisfied that on 6 February 1982 the second plaintiff, who claims that at the time he was a stateless person, was deported from Hong Kong, leaving that colony on board an aircraft operated by the second defendant.

8. It is out of the events leading up to the actual deportation, the deportations themselves and the entry into Australia of the plaintiffs that this action arises.

9. It is convenient to set out at length the relevant paragraphs of the statement of claim in its final form after amendment by leave granted by me on 21 February 1986.

"3. At all material times the plaintiffs
were non residents of Australia and
totally unwilling to be sent there when
the 24th January 1982 at Hong Kong
International Airport the Commonwealth
of Australia Qantas Airways and their
agents wrongfully arrested and false
imprisoned Philippine Nationals Rosalina
M. Louis, Ferdinand G. Louis, Rachael
R. Louis, United Kingdom citizen Murray
Daniel Louis, agents Qantas employees
took unlawfull possession of the above
plaintiffs and their passports an
illegal UK Hong Kong travel document
issued on the 18th January 1982 the same
defendants agents then wrongfully forced
the plaintiffs on board Qantas aircraft
flight number QF28 against their will
using intimidation assault and trespass
to the persons and the Pilot the
defendants agent wrongfully impounded
the plaintiffs travel documents and
others in his cockpit during the
aircrafts unlawful detention of the said
plaintiffs who demanded the said
documents and were refused them by the
defendants agents the Pilot and Qantas
employees. They were then forced inside
Australia's national boundaries where
they have remained false imprisoned
contrary to Commonwealth law without
Justice.

4. At all material times the plaintiff
Graham M. Louis was a non resident of
Australia not legally bound by the
Commonwealth of Australia's constitution
or jurisdiction and totally unwilling to
be sent there when the 6th February 1982
at Hong Kong international airport the
Commonwealth of Australia Qantas Airways
and their agents wrongfully arrested and
false imprisoned the above plaintiff
agents of the defendants wrongfully
forced the plaintiff on board the Qantas
Aircraft No. QF28 against his will
without a valid travel document the
defendants agents used assault trespass
to the person and intimidation the
plaintiff was threatened to be injected
with a paralyzing drug and handcuffed by
the agents he was then forced illegally
inside Australia's national boundary
where he remains false imprisoned
contrary to Commonwealth law without
Justice.

5. The Defendant's acted out of spite and
malice towards the plaintiffs and the
arrests and imprisonments took place in
public areas."

10. I am satisfied that the family arrived in Hong Kong from the Philippines in September 1980 and that their entry in that month was permitted for a period of three months only on condition that they should not engage in work, paid or unpaid, or establish any business in the colony without the permission of the Director of Immigration. The family appears to have met some financial difficulties which seem to have been soon overcome. Notwithstanding the conditions of entry the first plaintiff apparently operated a health business while the second plaintiff obtained part time work as a physical training instructor. However, by October 1981 their continuing presence in Hong Kong had been noted. Apparently on 29 October 1981 the second plaintiff was advised that a request he had made to remain for employment had been refused. By letter dated 13 November 1981, written on behalf of the Hong Kong Director of Immigration, he was told that he and his family were required to leave Hong Kong on or before 15 December 1981. The extension of time apparently granted was to enable the second plaintiff to attend to give evidence at a coronial inquest which was to be held between 7 and 10 December 1981.

11. On 30 December 1981, acting purportedly under the provisions of s.19(1)(b) of the Immigration Ordinance of Hong Kong, the Deputy Director of Immigration made an order in the following terms:-

"I have considered the individual
applications in respect of the four persons
named above (the first four plaintiffs) and
hereby order the removal of the persons named
in applications number 1-4 to the
Philippines/Australia under Section 19(1)(b)
of the Immigration Ordinance. I also
authorise their detention pending removal
under Section 32(3A)."

12. The relevant part of s.19(1)(b) of the Immigration Ordinance is as follows:-

"A removal order may be made against a person
requiring him to leave Hong Kong -

. . .

(b) subject to subsection (2), by the
Director if it appears to him that that
person -

. . .

(ii) has (whether before or after
commencement of the Immigration
(Amendment) (No.4) Ordinance 1981)
landed in Hong Kong unlawfully or
is contravening or has contravened
a condition of stay in respect of
him;"

13. As appears from the copy of the Ordinance which was tendered in evidence and of which a part was, for convenience sake, photocopied to become Exhibit 4, sub-paragraph 19(1)(b)(ii) came into effect on 11 December 1981.

14. On 4 January 1982 the second plaintiff was given notice of the removal order and of his right of appeal against it. The notice was in the following terms:-

"To: Mr LOUIS Graham James

Take notice that pursuant to section
19(1)(b)(ii) of the Immigration Ordinance the
Deputy Director of Immigration has on the
30th day of December 1981 made a removal
order against you on the grounds that you are
contravening a condition of stay.

The Deputy Director of Immigration has also
authorised your detention in custody pending
your removal from Hong Kong to the
Philippines/Australia

TAKE FURTHER NOTICE that you may, if you
wish, appeal to a Tribunal under Section 53A
of the Immigration Ordinance against the
decision to make the Removal Order. If you
wish to appeal you must do so by giving to an
immigration officer or an immigration
assistant written notice of your grounds of
appeal and the facts upon which you rely
within twenty four hours of receiving this
Notice (that is by 1625hr on 5 January 1982).

A form for your use in setting out your
appeal is attached. An officer of the
Prisons Department is available to assist you
in writing out your appeal if you so wish.

Dated 4 January 1982

Signature
L.K.NG
for Director of Immigration."

15. The relevant part of s.25 of the Immigration Ordinance reads:-

"25(1) A person in respect of whom a removal
order or a deportation order is in force may
be removed from Hong Kong in accordance with
this section.

(2) The Director may give directions -

(a) to the captain of any ship or aircraft
about to leave Hong Kong requiring him
to remove such person from Hong Kong to
a specified country;

(b) to the owners or agents of any ship or
aircraft requiring them to make
arrangements for the removal of such
person from Hong Kong in a ship or
aircraft specified or indicated in the
directions to any such country.

(3) A person in respect of whom directions
are given under subsection (2) may be placed
under the authority of an immigration
officer, immigration assistant or police
officer on board any ship or aircraft in
which he is to be removed in accordance with
the directions."

16. Similar notices were served on each of the first, third and fourth plaintiffs. Of course, none was served on the fifth plaintiff because no removal order against him had been made nor, it would seem, could one have been made. It would, nevertheless, be unreal to expect that he could stay in Hong Kong at his tender age without an adult to care for him.

17. Following the issue of the Removal Order and its service upon the plaintiffs, they were detained at detention centres, the second plaintiff separately from the rest of his family. Action taken in the Supreme Court of Hong Kong against the Removal Order was unsuccessful.

18. I am satisfied by the evidence of Mr Chan, at present Hong Kong's principal Immigration Officer but at the relevant time in 1982 the officer in the Hong Kong Immigration Department who was in charge of the detention and deportation of immigrants, that an unsuccessful attempt was made to have the Philippine Authorities agree that the second plaintiff might return to the Philippines upon his deportation. Clearly there would have been no difficulty about the re-entry into the Philippines of the remaining plaintiffs, all of whom, except the fifth, had Philippine passports.

19. Following that unsuccessfull attempt the Hong Kong immigration authorities thought it obvious that the second plaintiff would have to go back to Australia. Although the first plaintiff might have gone back to the Philippines, the authorities followed the principle that the family should be united. They therefore decided to try their best to ensure that the rest of the family should accompany the second plaintiff back to Australia.

20. The second plaintiff had his wife's passport (and no doubt his children's passports) in his brief case while under detention although he seems eventually to have surrendered them to the Hong Kong immigration authorities. Eventually those authorities arranged that visas should be granted the plaintiffs other than the second plaintiff and the appropriate visas permitting entry to Australia were subsequently endorsed on the three passports and the fifth plaintiff's emergency passport in the terms already quoted above.

21. Mr Chan gave evidence that no directive was issued to the Captain of the relevant aircraft requiring him or the owner or the agents of the aircraft to remove any of the plaintiffs from Hong Kong. It is not the practice of the Hong Kong immigration authorities to issue such directives. That is because those authorities have an arrangement with airlines which always cooperate when asked to remove persons being deported or refused entry. I am satisfied that were such an airline to decline to cooperate with the authorities an appropriate directive would be issued, whereupon the person to whom it was issued would be required to transport from Hong Kong the person being deported or refused entry.

22. I am satisfied that the first and second plaintiffs were taken onto Qantas premises in Hong Kong and onto the respective aircraft which transported them to Australia very much against their will. Certainly it seems that the first plaintiff was eventually resigned to the fact that she was to be deported and, faced with Hobson's choice, accepted that she should be returned to Australia. This did not, in my opinion, argue any consent on her part to being taken from custody in Hong Kong and being placed on the aircraft. I am satisfied that she felt much humiliation over the circumstances of her enforced departure.

23. The second plaintiff's attitude towards his removal was that he refused to be returned to Australia. Undoubtedly his eventual return to Australia was against his will. He described himself as a stateless person, one who had renounced Australian citizenship. He referred to the Australian Citizenship Act 1948 but I am satisfied that the provisions of that Act upon which he relied and, in particular, s. 18, did not permit him to declare himself a stateless person.

24. I accept the second plaintiff as a witness of truth and am satisfied therefore that when he was being escorted to the aircraft he was subjected to some very minor physical constraint by one of the second defendant's security officers who were accompanying him.

25. The second defendant insisted upon the second plaintiff's being escorted back to Australia by the two security officers just mentioned and a doctor. A Hong Kong senior immigration officer accompanied the party but I am satisfied that once on board the aircraft he would have had no authority over any of the passengers and that the second defendant through its servants and agents was the effective custodian of the second plaintiff.

26. The plaintiffs were returned to Australia without further incident. They allege that their forced deportation to Australia has meant that they are prisoners in Australia and that the imprisonment of which they complain has continued from the moment they were placed on board the second defendant's aircraft. I am unable to accept that claim. I do accept that for a time after their return to Australia financial constraints would have prevented the plaintiffs from leaving the country. However, there is no evidence to suggest that they could not have departed the country in due course to a destination of their choice. In any event, it seems to me to be impossible to say that persons who are at perfect liberty to move around Australia, as I am satisfied the plaintiffs were, are suffering a state of imprisonment. Their stay in Australia might be against their wills but, once they were deported from Hong Kong, there were only two countries to which it appears they might have gone. Faced with what I have described as Hobson's choice, the first plaintiff elected to return to Australia to be with her husband who had, it would appear, no choice once he was deported from Hong Kong but to return to Australia. I therefore reject the claim that the plaintiffs are entitled to damages for continuing imprisonment in Australia after their return.

27. I also reject the claim that the defendants were motivated by spite and malice. I can see no evidence but that they acted with good intent towards the plaintiffs.

28. The plaintiff's claim for damages brought a request for particulars. None were furnished. During the course of the trial they were offered the opportunity to place some evidence concerning damages before the Court but did not avail themselves of it. If, therefore, they were wrongfully arrested and falsely imprisoned their damages do not, in my opinion, extend to more than ordinary compensatory damages or to any for imprisonment in Australia after they left the aircraft and were thereupon free to go about their own affairs.

29. There remains, however, the question whether what happened in Hong Kong amounted to wrongful arrest and false imprisonment.

30. There is no evidence in my opinion to establish that the first defendant was in any way to blame for what happened in Hong Kong. Certainly it provided visas for all the plaintiffs but that was merely to facilitate the departure of the plaintiffs from Hong Kong in accordance with the request of the Hong Kong authorities and their eventual entry into Australia. It seems to me that it was perfectly in order for representatives of the Australian Government to issue visas for that purpose. Those representatives were entitled to assume, I think, that any subsequent deportation would be effected in accordance with the laws of Hong Kong and there is not a little of evidence to suggest that any servant or agent of the Australian Government took any part in placing the plaintiffs or any of them aboard the aircraft. It follows that the action against the first defendant must be dismissed.

31. However, in my opinion, the plaintiffs have made out a case against the second defendant. The provisions of s.25 of the Immigration Ordinance of Hong Kong required, I think, that the captains of the aircraft in question should have received directions from the Director of Immigration. Without those directions the taking aboard of the plaintiffs against their will amounted, I think, to wrongful arrest and false imprisonment.

32. Counsel for the second defendant cited a number of authorities in support of his submission that the second defendant had acted reasonably. The authorities dealt with actions against police officers who had falsely imprisoned innocent persons in respect of whom, nevertheless, they had reasonable cause or grounds for believing that they had committed an offence. As was said by Cassels J in Wright v. Sharp (1947) 176 LT 308 at p 311:

"If the police have reasonable grounds for
acting and do not act, then they are failing
in their duty. If they do act on reasonable
grounds, they ought not to be blamed if
afterwards it turns out that they were
wrong."

33. In my opinion the analogy is false. The second defendant would have been under a duty to transport the plaintiffs from Hong Kong had appropriate directions been given under s.25 of the Immigration Ordinance. But apparently it did not inform itself by its servants or agents of what was the true position regarding its legal duty. I think it should have. The fact that enquiries were made to ascertain whether an appropriate order had in fact been made by the Hong Kong immigration authorities negative any malice on the part of the second defendant but it does not afford it any excuse.

34. In Webster v. McIntosh [1980] FCA 128; (1980) 32 ALR 603, a decision of the Full Court of the Federal Court of Australia, Brennan J, giving the judgment of the Court, said at p 607:-

"Liberty ends where the power of arrest
begins. There is a legal immunity from
arrest and from the threat of arrest unless
and until the conditions governing the
exercise of the arresting power are
fulfilled. The extent of this immunity, no
less than the extent of the power of arrest,
is fixed by the laws prescribing these
conditions; for immunity and the power to
arrest are correlatives, and laws which
define the power measure the immunity."

35. The second defendant acted outside the conditions governing the exercise of the arresting power in acting upon a request, not directions, of the Hong Kong immigration authorities. It was therefore guilty of the wrongful arrest and false imprisonment of the plaintiffs.

36. I turn to the question of damages. They are, in my opinion, very much at large. My function is that of a jury.

37. I take into account the deep humiliation which the first plaintiff felt and accept that she was totally unwilling to return to Australia. Her animosity towards Australia, whatever be the reasons for it (and these were not investigated), seems to me to be deep seated and real and it seems to me that, just as in any action for tort, the second defendant must take the plaintiffs as it finds them. I think, taking all matters into account, a proper award for the first plaintiff is $10,000.

38. The second plaintiff's situation is, I think, different. His unwillingness to return to Australia was, I am satisfied, well known to the second defendant. In addition to the humiliation of the arrest and imprisonment on board the aircraft he was subjected to that of having a restraining hand placed upon him by one of the second defendant's security officers. As well he was aware of the presence of a doctor and the likelihood that, if he objected to what was happening to him, he would be dealt with by being forceably restrained at least and also probably subjected to sedation at the hands of the doctor who was travelling on the aircraft with him.

39. Taking into account all the circumstances I think the proper sum to award him is $20,000.

40. The remaining plaintiffs were, I think, too young to have suffered any but relatively nominal damages. To each I award the sum of $100.00.