Ayamiseba v Republic of Vanuatu [2008] VUSC 15; Civil Case 196 of 2006 (2 May 2008)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 196 of 2006

BETWEEN:

ANDY AYAMISEBA
Claimant

AND:

THE GOVERNMENT OF THE REPUBLIC OF VANUATU
Defendant

Coram: Justice C.N. Tuohy

Counsel: Mr. Laumae for Claimant
Mr. Gilu for Defendant

Date of Hearing: 15 April 2008
Date of Decision: 2 May 2008

JUDGMENT

1. On 14 November 2007, I made an order under R12.4 for a hearing of the following preliminary issues:
   

"(a) Whether the removal order under s. 17 A (1) (a) of the Immigration Act made on or about 9 February 2006 and quashed by order of the Court of Appeal dated 6 October 2006 protected persons acting in good faith pursuant to it from liability for false imprisonment for actions undertaken by them prior to 6 October 2006.

(b) In the event that the Police Officers and Immigrations Officers who carried out the detention of the Claimant and the control of his liberty, freedom and movement admitted in Para 3 (b) and 5 (a) of the Re-Amended Defence are personally liable for false imprisonment in respect of those actions, is the Defendant (the Government) vicariously liable for their actions".

2. It is necessary to record certain undisputed facts about the removal order and its quashing by virtue of the Court of Appeal’s judgment in Ayamiseba v. Attorney–General and Principal Immigration Officer [2006] VUCA 21; CAC 13-06 (6 October 2006). The form of the order is set out in that judgment. On its face, it appears perfectly valid.
   
3. The Court held that s. 17A of the Immigration Act required the Minister to turn his mind to the question of whether he needed to give notice under s. 17(1A) to the person subject to a proposed removal order. The Court found that the Minister had not done so. The Court stated at the conclusion of its judgment:
   

"The Court being satisfied that the deportation order was made without proper compliance with the statute it is therefore declared to be a nullity".

The substantive formal order of the Court was:

"(a) the removal order dated 9 February 2006 made by the Minister of Immigration against Andy Ayamiseba be hereby quashed".

Question (a)

4. This could have been better phrased. It was not intended to address s. 20 of the Immigration Act or s. 40 of the Police Act. These provide a protection from liability to police and immigration officers for acts done in good faith in the performance or exercise or intended performance or exercise of any duty or power under their respective Acts. The question was intended to be addressed putting aside any defence provided by these sections. The reference to good faith in the question was intended to make clear that it is to be assumed for the purposes of the argument that the officers had no knowledge of any error in the making of the order. In retrospect it was unnecessary to mention good faith as false imprisonment is a tort of strict liability. Apart from s. 20 and s. 40, good faith would not provide a defence. That lack of clarity may have misled counsel to unnecessarily direct some of their submissions towards s. 20 and s.40.
   
5. The tort of false imprisonment has been defined as "intentionally and without lawful justification subjecting another to a total restraint of movement": Fleming, The Law of Torts 9th ed (1998) p 33. The question is whether the removal order provided lawful justification.
   
6. The relevant law has been succinctly discussed fairly recently in the United Kingdom at the highest level in the House of Lords decision in R v. Governor of Brockhill Prison, ex parte Evans (No. 2) [2000] UKHL 48; [2001] 2 AC 19. That case involved a claim by a prisoner for false imprisonment where she had been kept in prison under a warrant, the duration of which had been calculated by the prison governor in accordance with existing court decisions which were later overruled. Under the later ruling, the prisoner should have been released earlier. So the facts are a little different from the present case but the Law Lords helpfully analyzed and explained the authorities in the area.
   
7. The opinion of Lord Hobhouse of Woodborough highlighted the necessity to clearly analyze the factual situation. He drew a crucial distinction between an order which is on its face invalid and an order which is prima facie valid but which is liable to be set aside. In the former case, there is no lawful justification for a detention based on the order. In the latter case, there is.
   
8. This distinction explains a number of decisions where an invalid warrant, order or bye-law provided a defence to a claim for false imprisonment such as Olotu v. Home Office [1996] EWCA Civ 1070; [1997] 1 ALL E. R. 385; Greaves v. Keene [1879] UKLawRpExch 4; (1879) 4 Ex. D. 73 Henderson v. Preston [1888] UKLawRpKQB 148; (1888) 21 Q. B.D 362; Percy v. Hall [1997] QBD 924.
   
9. The order in this case falls into the latter class. This order was one which on its face was valid. It had to be complied with until it was set aside. There was nothing to suggest to the officers that it was invalid. They did not misinterpret it. Its later quashing was based upon a finding that the process by which it was made was defective.
   
10. I do not think that the description of the order as a "nullity" by the Court of Appeal makes any difference. This is a question relating to the law of torts not administrative law and the answer does not hinge on any question of nomenclature.
    
11. Question (a) is answered in this way: the removal order of 9 February 2006 provides lawful justification for any acts done by authorized persons in the execution of that order prior to its quashing on 6 October 2006.
    

Question (b)

12. The second issue involves the vicarious liability of the Government for the acts of the immigration and police officers. The starting point is to establish the source of the law in Vanuatu on this point. Neither counsel cited any Vanuatu authority which deals directly with the issue which is surprising given the prevalence of claims against the Government and its servants or agents since Independence now nearly 28 years ago. Nor is there any post Independence legislation directly in point.
    
13. It is therefore necessary to look to Article 95 (2) of the Constitution. This is a common law claim in tort i.e. a claim founded on "the British law in force and applied in Vanuatu at the Day of Independence" to use the words of Article 95(2). Under British law, the liability of the Government for the torts of its servants or agents has been regulated since 1947 by the Crown Proceedings Act 1947 (U.K).
    
14. Pursuant to the High Court of New Hebrides Regulations 1976, all United Kingdom statutes of general application in force in England on 1 January 1976, were declared applicable in the Condominium "so far as circumstances admit". The Crown Proceedings Act is a statute of general application. It remained in force in England up to (and after) the Day of Independence. Therefore it was part of the British law in force in Vanuatu on that date.
    
15. It is not incompatible with the independent status of Vanuatu. Through the Constitution, Vanuatu adopted the Westminster model of governance. The Crown Proceedings Act is an intrinsic part of that model. All neighbouring jurisdictions in Australia and New Zealand which share that model and whose jurisprudence is often cited in Vanuatu quickly followed the United Kingdom lead and passed very similar statutes which remain in force. Although Vanuatu is a Republic not a monarchy, "the Crown" in this context is simply an expression which embodies the state or the government. I therefore conclude that the Crown Proceedings Act 1947 (UK) is part of the law of Vanuatu.
    
16. There are some aspects of the Crown Proceedings Act (UK) particularly relating to jurisdiction and procedure which are inappropriate for Vanuatu, having regard to the different court system and procedural rules (including the recently enacted Government Proceedings Act No. 9 of 2007). The same is true of the Adoption Act 1958 (UK) which, however, is the law applied regularly to adoptions in Vanuatu. Those areas of the Act will not need to be applied – the circumstances do not admit of it. However, Part 1 "Substantive Law" is appropriate for Vanuatu.
    
17. Part 1 contains the provision relevant to this case, s. 2 (1) (a) which provides:
    

" Subject to the provisions of this Act the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject:-

(a) in respect of torts committed by its servants or agents;"

18. The first issue is whether the immigration and police officers are servants of the Government. Whether a person is a "servant" of the Government for the purposes of s. 2 (1) of the Crown Proceedings Act (UK) is defined by the same rules as are used by the common law to identify private servants. The most important criterion, in most cases decisive, is that of control, that is where ultimate managerial authority lies: Zuijs v. Wirth Bros Pty Ltd [1955] HCA 73; (1995) 93 CLR 561.

19. The position of immigration officer is established by s. 3 (1) of the Immigration Act (Cap.66). They are under the general direction of the Minister of Immigration under s. 3(2) and their duties are prescribed by the Immigration Act. The purpose of that Act is "to regulate and control immigration into Vanuatu", a function of Government. They are public servants in terms of Article 57 of the Constitution.
    
20. The Police Force is not specifically mentioned in the Constitution. The Force is established by s. 2 of the Police Act (Cap. 105) and under s. 3 consists of the Commissioner and such senior and subordinate officers as may from time to time be approved by the Minister of Police. Under s. 4, the Force is to be employed for:
    

" (a) the preservation of peace and the maintenance of order;

(b) the protection of life and property;

(c) the enforcement of laws;

(d) the prevention and detection of offences and the production of offenders before the Courts; and

(e) such other duties as may be expressly provided for by law".

21. Under s. 6, the Police Commissioner is entrusted with the command, superintendence and direction of the Force, but is subject to the general directions of the Minister in relation to appointments, promotions and demotions of subordinate officers and the making of Force Orders for the general government of members. There is also established by s. 9 the Police Service Commission appointed by the Prime Minister consisting of 3 members, one each of which is appointed by the chairman of the Public Service Commission, the Chief Justice and the Minister. The Commission appoints the Police Commissioner and other senior officers.
    

22. The general powers and duties of members of the Force are set out in s. 35 of the Police Act:

"GENERAL POWERS AND DUTIES OF MEMBERS OF THE FORCE

35. (1) Every member shall exercise such powers and perform such duties as are by law conferred or imposed upon him, and shall obey all lawful direction in respect of the execution of his office which he may from time to time received from his superiors in the Force.

(2) Every member shall be considered to be on duty at all times and may at any time be detailed for duty in any part of Vanuatu.

(3) It shall be the duty of every member to promptly obey and execute all orders and warrants lawfully issued to him by any competent authority, to collect and communicate intelligence affecting the public peace, to prevent the commission of offences and public nuisances, to detect and bring offenders to justice and to apprehend all persons that he is legally authorised to apprehend and for whose apprehension sufficient ground exists".

It is also worth mentioning that under s. 1 of the Immigration Act "Principal Immigration Officer" includes any police officer of the rank of sergeant and above.

23. It is clear from the provisions of the Immigration Act and the Police Act set out above that the ultimate control of both immigration officers and the Police Force and its members lies with the Government which also pays them. I am satisfied that both immigration officers and police officers are servants of the Government for the purposes of the Crown Proceedings Act 1947 (UK). That is beyond dispute in the United Kingdom itself and in the other countries where similar legislation is in force. There are numerous examples in those jurisdictions where the Crown has been sued for the tortious acts of police officers and public servants such as immigration officers where it is taken for granted that they are servants of the Crown for whose actions the Crown will be vicariously liable: see e.g. R v Governor of Brockhill Prison, ex parte Evans (No.2) (supra) (House of Lords, prison governor); Ruddock v Taylor [2005] HCA 48 (High Court of Australia, immigration officers); Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667 (New Zealand, police officers).
    
24. Once it is established that a servant of the Government has committed a tort, the Government will be vicariously liable, according to ordinary tort principles, only if the servant committed the tort "in the course of employment". This means that the tortious act must be closely connected with the duties of employment. The Government, like a private employer, is not liable for the act of a servant that is unconnected with the duties of employment. In this case, the actions of the police and immigration officers involved seem clearly to have been in the course of their employment. They were executing a removal order issued under the Immigration Act.
    
25. In some jurisdictions, there is or has been an exception to the vicarious liability of the Government for the acts of a police officer while purporting to exercise a power or duty conferred by law directly on him on the basis that he is exercising an independent discretion conferred upon him personally rather than acting in the course of his employment. The case of Enever v. The King (1906) CLR 969 cited by Mr. Gilu is an example. This exception may be the basis for the pleading in Para 9 (c) (i) and (d) (i) of the Defence that police and immigration officers are "appointees to an independent statutory office".
    
26. Here the officers were simply carrying out a superior order. But in any event, the rule was abolished by s. 2 (3) of the United Kingdom Act (and in New Zealand but apparently not in most Australian states: see "Liability of the Crown" by PW Hogg and PJ Monahan 3rd ed, Ch 6 note 94). Section 2 (3) provides:
    

"(3) Where any functions are conferred or imposed upon an officer of the Crown as such either by any rule of the common law or by statute and that officer commits a tort while performing or purporting to perform those functions, the liabilities of the Crown in respect of the tort shall be such as they would have been if those functions had been conferred or imposed solely by virtue of instructions lawfully given by the Crown".

27. There is another exception in s. 2 (5) in respect of anything done by any person while purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process. This is not applicable. The issue of a removal order under s. 17 is not a judicial act. It is undoubtedly an executive act of the Minister. The execution of it is not the execution of a judicial process.
    
28. So the answer to question (b) set out above is yes.
    
29. Finally I wish to thank both counsel for the work they put into their submissions on these important and quite difficult issues. The Court regrets any unnecessary work they had to do because of the lack of clarity in Question (a). Mr. Laumae’s submissions (and the reply filed) veered into the area of whether the removal order was made negligently by the Minister. This is not relevant to the claim his client has brought, false imprisonment. Negligent misfeasance is a completely different cause of action which has not been pleaded as Mr. Laumae eventually acknowledged. Such a claim would have a number of quite different difficulties.
    
30. The parties may need some time to consider how this ruling affects the future of the proceeding. There will be a further conference on 2 June 2008 at 10 am.
    

Dated at Port Vila, this 2nd day of May 2008

BY THE COURT

C.N. TUOHY
Judge