Atem Deng's claim for damages against ACT govt, Magistrates Court for being remanded in custody on baseless charge dismissed

Atem Deng, 35, appeared in the ACT Magistrates Court in April 2019 for a charge of damage property.

The magistrate at the time made a special interim family violence order that prohibited the plaintiff from engaging in certain conduct "until all related charges are finalised".

Four months later, Mr Deng was sentenced for that charge, which meant all related charges were finalised.

Later that year, the plaintiff was charged with breaching that interim order after he went to his ex-partner's house.

However, the order that Mr Deng allegedly breached did not prohibit his conduct as all related charges had been finalised.

Following his arrest, the plaintiff was remanded in custody at the Alexander Maconochie Centre for 58 days after which the charge was withdrawn.

Mr Deng in late 2020 sued the ACT government for damages for alleged false imprisonment and negligence. He also claimed compensation based on the Human Rights Act 2004.

The Magistrates Court was also sued for the injury he suffered allegedly from the remand orders.

In total, he sought $211,500 in damages while the defendants' proposed figure was $56,124.

Another relief was the declaration that the lower court acted without, or in excess, of jurisdiction.

The plaintiff and the defendants agreed to some extent about a list of issues.

These included whether the interim order was revoked and if it were, whether the failure to notify police about it before the arrest could harm the plaintiff.

In his evidence, Mr Deng said a cellmate threatened him and that he was stripped and searched six or seven times during his incarceration.

After he was released, he felt unhappy, isolated, and humiliated.

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Counsel for the defendants said that while it was "regrettable" Mr Deng spent time in custody on a charge that should not have been brought, this did not mean, according to law, he was entitled to compensation.

It was argued the plaintiff's claim could not succeed based on five reasons, including that the court had jurisdiction to make the remand orders.

Another reason was that the claim of negligence fails on both a principle and factual level.

This included that police had, at all times, access to both the interim order and the plaintiff's criminal history.

While the evidence did not explain how police laid the charges, it did not establish that police relied on the Magistrates Court's administrative staff to inform them about when conditions in an interim order stopped operating.

The defence lawyer argued that in the absence of such evidence, Mr Deng could not meet his burden of establishing duty or breach.

In her judgment published on Wednesday, Justice Chrissa Loukas-Karlsson said Mr Deng "should not have spent 58 days" in jail.

"That was a failure of the system," Justice Loukas-Karlsson said.

"Nevertheless, the proper application of the law does not result in a remedy for Mr Deng."

Among her findings, the judge said the Magistrates Court's orders to remand the plaintiff in custody were not made outside of, or in excess of, jurisdiction and noted that the magistrates were not required to investigate charges brought before them.

She found the interim order ceased to have legal effect, rather than it being revoked or varied, meaning the court registry did not have any information with which the police had not been provided.

She said the defendants may have owed the plaintiff a duty of care not to communicate incorrect information to the police, but this did not extend to a positive duty to communicate to the police in circumstances where they had not requested any particular information about the plaintiff.

The judge said even if that finding were incorrect, the defendants would not have breached any duty of care as there was no revocation or variation to the interim order that needed to be communicated to the police, had all relevant information.

The plaintiff's application was dismissed and the court granted leave for the parties to provide submissions about costs.

Special counsel Sangeeta Sharmin from Ken Cush & Associates, the firm that represented Mr Deng, said "our client cannot understand how what happened was in any way lawful".

"He has asked us to review how that can be the case," Ms Sharmin said.

"He thanks the court for its consideration."

Mr Deng also took action against the two magistrates involved and was given leave to file submissions if he seeks any order regarding the stay as against them.

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