State of NSW v Kable

• Jurisdiction: Australia Federal only
• Judge: French CJ,Hayne,Crennan,Keifel,Bell,Keane JJ,Gageler J.
• Judgment Date: 05 June 2013
• Neutral Citation: [2013] HCA 26,2013-0605 HCA B
• Court: High Court
• Docket Number: S352/2012
• Date: 05 June 2013

[2013] HCA 26

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Crennan, Keifel, Bell, Gageler and Keane JJ

S352/2012

State of Nsw

Appellant

and

Gregory Wayne Kable

Respondent

Representation

M G Sexton SC, Solicitor-General for the State of New South Wales and M J Leeming SC with J E Davidson for the appellant (instructed by Crown Solicitor (NSW))

P W Bates with P G White for the respondent (instructed by Armstrong Legal)

Interveners

J T Gleeson SC, Solicitor-General of the Commonwealth with A M Mitchelmore for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

W Sofronoff QC, Solicitor-General of the State of Queensland with G J D del Villar for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))

S G E McLeish SC, Solicitor-General for the State of Victoria with R J Orr for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)

G R Donaldson SC, Solicitor-General for the State of Western Australia with K H Glancy for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))

Constitution, ss 76, 77.

Community Protection Act 1994 (NSW), s 9 ..

State of NSW v Kable

Constitutional law — Judicial power — Respondent detained pursuant to order of Supreme Court of New South Wales made under Community Protection Act 1994 (NSW) (‘CP Act’) — CP Act subsequently held invalid — Respondent sought damages for false imprisonment — Whether order of Supreme Court valid until set aside — Whether order of Supreme Court judicial order.

Torts — False imprisonment — Defences — Lawful authority — Respondent held under order of Supreme Court subsequently set aside — Whether officers of appellant could rely on order made under invalid legislation as lawful authority.

Words and phrases — “judicial order’, “lawful authority’, “superior court of record’, “void ab initio’, “void or voidable’.

ORDER

• 1. Appeal allowed.

• 2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 8 August 2012 and, in their place, order that the appeal to that Court be dismissed with costs.

• 3. The appellant pay the respondent's costs of the application for special leave to appeal and of the appeal to this Court.

French CJ, Hayne, Crennan, Keifel, Bell and Keane JJ

The issue

1 A State Act empowered the State's Supreme Court to order the preventive detention of Gregory Wayne Kable if satisfied that otherwise he would probably commit a serious act of violence. The Supreme Court ordered Mr Kable's detention for six months. After the six months had elapsed, the detention order was set aside on appeal to this Court and the State Act held invalid. Did the detention order provide lawful authority for Mr Kable's detention?

Procedural history

2 The Community Protection Act 1994 (NSW) (‘the CP Act’) provided for ‘the preventive detention (by order of the Supreme Court [of New South Wales] made on the application of the Director of Public Prosecutions) of Gregory Wayne Kable’ 1. On 23 February 1995, on the application of the Director of Public Prosecutions, Levine J made an order pursuant to s 9 of the CP Act that Mr Kable be detained in custody for a period of six months.

3 Mr Kable appealed against this order to the Court of Appeal but his appeal was dismissed 2.

4 By special leave, Mr Kable appealed to this Court. After the grant of special leave, but before the appeal to this Court was heard, the six month period fixed by the order of Levine J expired and Mr Kable was released from detention. In September 1996, this Court held 3 that the CP Act was invalid. This Court allowed Mr Kable's appeal, set aside the order which the Court of Appeal had made, and, in its place, ordered that the appeal to that Court be allowed with costs, the order of Levine J be set aside and, in its place, order that the application of the Director of Public Prosecutions be dismissed with costs. It will be convenient to refer to this decision as Kable (No 1).

5 After this Court decided Kable (No 1), Mr Kable commenced proceedings in the Supreme Court of New South Wales, claiming damages for false imprisonment. Initially the proceedings were brought against the State of New South Wales (‘the State’). Later, the Director of Public Prosecutions (‘the DPP’) was joined as a defendant. Ultimately three causes of action were pleaded: abuse of process, malicious prosecution and false imprisonment. Before the action was tried, the DPP was dismissed from the proceedings by consent.

6 The primary judge (Hoeben J) determined 4 a number of issues as preliminary questions. Those issues were decided against Mr Kable and judgment entered for the State. In particular, the primary judge rejected 5 Mr Kable's argument that the detention order made by Levine J was a nullity when made and held that the order was valid until it was set aside.

7 Mr Kable appealed to the Court of Appeal. That Court (Allsop P, Basten, Campbell and Meagher JJA and McClellan CJ at CL) allowed 6 the appeal in part. The Court of Appeal held that the primary judge had been right to dismiss Mr Kable's claims for collateral abuse of process and malicious prosecution but that Mr Kable should have judgment against the State for damages to be assessed on his claim for false imprisonment. All members of the Court of Appeal held 7 that the order of Levine J was no answer to Mr Kable's claim for false imprisonment.

8 Allsop P held 8 that the reasons given by this Court in Kable (No 1) required the conclusion that, in making the detention order, ‘the Supreme Court was not exercising judicial power or authority and was not acting, institutionally, as a superior court but was acting, effectively, in an executive function (beyond

that which is permissibly ancillary to the exercise of judicial power), as an instrument of the executive’.

9 Basten JA also held that the detention order made by Levine J ‘did not constitute a judicial order’ 9 and that “[a]ny contrary conclusion would contradict the findings’ 10 of this Court in Kable (No 1). Basten JA noted 11 that, because constitutional questions had been raised in the proceedings before Levine J, the Supreme Court had exercised federal jurisdiction, but concluded 12 that the detention order was none the less ‘an invalid non-judicial order’.

10 By special leave, the State appealed to this Court against the orders made by the Court of Appeal. The Attorneys-General of the Commonwealth, Queensland, Victoria and Western Australia intervened in support of the State's appeal.

11 These reasons will show that the detention order made by Levine J provided lawful authority for Mr Kable's detention and that the State's appeal should be allowed.

The competing arguments

12 The central question in the appeal to this Court was whether the order made by Levine J, until it was set aside, had provided lawful authority for Mr Kable's detention. There was (and could be) no dispute that the Supreme Court of New South Wales is a ‘superior court of record’ 13. There was (and could be) no dispute that the CP Act was invalid. On its face, the detention order was made by the Supreme Court in the exercise of a jurisdiction given to it by a New South Wales Act. The order was expressed to require Mr Kable's detention in the manner and for the time specified. In the course of deciding whether to

grant the order sought, Levine J had been asked to hold that the CP Act was constitutionally invalid but had rejected that submission.

13 The State, and the interveners, submitted that the order made by Levine J was made by a superior court of record and accordingly was effective until it was set aside. Because the order was not set aside until after Mr Kable's release from detention, it followed, so the State submitted, that the order provided lawful authority for Mr Kable's detention.

14 By contrast, Mr Kable submitted that the bases on which this Court held the CP Act invalid required not only the conclusion that the CP Act was invalid, but also the conclusion that the Supreme Court could not make (and had not made) a ‘judicial’ order requiring his detention. He submitted that it followed that the principle requiring that effect be given to an order of a superior court until it was set aside was not engaged. Either the order made by Levine J was ‘void ab initio’ or, when set aside by order of this Court, the order was ‘annulled ab initio’. On either footing, the argument continued, the order provided no lawful authority for Mr Kable's detention.

Kable (No 1)

15 Consideration of the competing arguments must begin by identifying what was decided in Kable (No 1). The legislative powers of each of the State Parliaments are necessarily 14 subject to the federal Constitution. The CP Act was held to be beyond the legislative power of the New South Wales Parliament because its enactment was contrary to the requirements of Ch III of the Constitution. The exercise of the jurisdiction which the CP Act purported to give to the Supreme Court was held 15 to be incompatible with the institutional integrity of the Supreme Court.

16 The incompatibility with institutional integrity which was identified in Kable (No 1) lay in the Supreme Court being required to act as a court in the performance of a function identified as not being a function for the judicial branch of government. The majority in Kable (No 1) described the function which the CP Act required the Supreme Court to undertake in several different

ways. All of those descriptions emphasised that the function which the CP Act required the Court to fulfil was not judicial. So, for example, Gaudron J said 16 that the power given by the CP Act ‘is not a power that is properly characterised as a...