Kable v State of New South Wales - [2012] NSWCA 243

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kable v State of New South Wales [2012] NSWCA 243
Hearing dates: 27, 28 October, 29 November 2011
Decision date: 08 August 2012
Before: Allsop P at [1];
Basten JA at [67];
Campbell JA at [173];
Meagher JA at [174];
McClellan CJ at CL at [175]
Decision:
(1) Allow the appeal in part.
(2) Set aside the orders in the Common Law Division dismissing the proceedings against the first defendant (the State) and ordering the plaintiff to pay the defendant's costs of the proceedings.
(3) In lieu of the judgment and orders below:
(a) give judgment for the plaintiff on his claim against the first defendant (the State) for unlawful imprisonment;
(b) order the first defendant to pay the plaintiff's costs of the proceedings to date in the Common Law Division.
(4) Remit the matter to the Common Law Division for assessment of damages.
(5) Order that the respondent pay the appellant's costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
ADMINISTRATIVE LAW - judicial power - executing invalid order of superior court - whether order of superior court incompatible with exercise of judicial power is valid until set aside - whether non-judicial order derives whatever authority it has solely from the relevant legislation - effects of orders in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51

CONSTITUTIONAL LAW - judicial power - Supreme Court order under statutory power incompatible with judicial power invalid - order made in proceedings involving exercise of federal judicial power - exercise of federal judicial power simultaneous with function incompatible with judicial power - whether invalid State law applied by federal law - Judiciary Act 1903 (Cth), ss 39(2), 79 and 80

TORT - defences - protection from liability in tort for officer enforcing non-judicial order of judge of superior court in good faith - whether protection exists at common law - whether any protection extends to orders incompatible with exercise of judicial power

TORT - false imprisonment - plaintiff detained pursuant to order of Supreme Court on application of Director of Public Prosecutions pursuant to purported State legislation - legislation incompatible with judicial power and invalid - whether deprivation of liberty carried out by a person for whose conduct the State was liable - whether deprivation of liberty justified by law

TORT - malicious prosecution and collateral abuse of process - plaintiff detained pursuant to order of Supreme Court on application of Director of Public Prosecutions pursuant to invalid legislation - whether malice established
TORT - vicarious liability - vicarious liability of the State for conduct of persons in service of the Crown - whether State vicariously liable for conduct which was tortious absent statutory protection - Law Reform (Vicarious Liability) Act 1983 (NSW), ss 8 and 10
Legislation Cited: Bill of Rights 1688 (Imp), art 9
Claims Against the Colonial Government Act 1876, s 3
Claims against Government Act 1857 (NSW)
Claims Against the Government and Crown Suits Act 1912 (NSW)
Community Protection Act 1994 (NSW), ss 3, 4, 5, 14, 15, 19, 22, 23, 28, 31
Constables Protection Act 1750 (Imp) (24 Geo II, c 44), s 6
Constitution, ss 51, 71, 75, 76, 77, 109; Ch III
Crimes Act 1900 (NSW), s 4
Crimes Legislation Amendment (Sentencing) Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 62
Criminal Procedure Act 1986 (NSW), ss 241-244
Crown Proceedings Act 1988 (NSW)
Crown Proceedings Act 1972 (SA)
Crown Proceedings Act 1947 (UK)
Customs Act 1901 (Cth)
Director of Public Prosecutions Act 1986 (NSW)
Evidence Act 1995 (NSW), s 91
Imperial Acts Application Act 1969 (NSW)
Interpretation Act 1987 (NSW), s 21
Judiciary Act 1903 (Cth), ss 38, 39, 78B, 79, 80
Law Reform (Vicarious Liability) Act 1983 (NSW), ss 5, 7, 8, 10, 46
Listening Devices Act 1984 (NSW)
Police Regulation Act 1899
Prisons Act 1952 (NSW), ss 3, 6, 39, 40, 40A, 46; Pt 8; Sch 2
Prisons (Amendment) Act 1988 (NSW)
Cases Cited: A v State of New South Wales [2007] HCA 10; 230 CLR 500
Ah Yick v Lehmert [1905] HCA 22; 2 CLR 593
Andrews v Marris (1841) 1 QB 3; 113 ER 1030
Antill Ranger & Co Pty Ltd v Commissioner for Motor Transport [1955] HCA 25; 93 CLR 83
Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342
Bell v Western Australia [2004] WASCA 205; 28 WAR 555
Broom v Morgan [1953] 1 QB 597
Butt v Newman (1819) Gow 97
Cameron v Cole [1944] HCA 5; 68 CLR 571
Carratt v Morley (1841) 1 QB 18; 113 ER 1036
Carroll v Mijovich (1991) 25 NSWLR 441
Chicot County Drainage District v Baxter State Bank 308 US 371 (1940)
Coleman v Power [2004] HCA 39; 220 CLR 1
Commissioner for Motor Transport v Antill Ranger & Co Pty Ltd (1956) 94 CLR 177 (PC)
Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; 53 CLR 220
Commonwealth v Connell (1986) 5 NSWLR 218
Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714
Darling Island Stevedoring and Lighterage Co Ltd v Long [1957] HCA 26; 97 CLR 37
Deacon v Grimshaw (1955) 93 CLR 104
De Bruyn v South Australia (1990) 54 SASR 231
Demer v Cook (1903) 88 LT 629
DMW v CGW [1982] HCA 73; 151 CLR 491
Dowling v Colonial Mutual Life Assurance Society Ltd [1915] HCA 56; 20 CLR 509
Dr Drury's Case (1610) 8 Co Rep 141b; 77 ER 688
Emanuele v Hedley (1998) 179 FCR 290
Enever v The King [1906] HCA 3; 3 CLR 969
Farnell v Bowman (1887) 12 App Cas 643 (PC)
Feather v Rogers (1909) 9 SR (NSW) 192
Felton v Mulligan [1971] HCA 39; 124 CLR 367
Gerard v Hope [1965] Tas SR 15
Gregory v Portsmouth City Council [2000] 1 AC 419
Grollo v Palmer [1995] HCA 26; 184 CLR 348
HA Bachrach Pty Ltd v State of Queensland [1998] HCA 54; 195 CLR 547
Hadkinson v Hadkinson [1952] P 285
Haskins v Commonwealth [2011] HCA 28; 244 CLR 22
Henderson v Preston (1888) 21 QBD 362
Higginson v Martin (1677) 2 Mod 195; 86 ER 1021
Hill v Bateman (1726) 2 Strange 710; 93 ER 800
Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21
Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; 8 CLR 330
Isaacs v Robertson [1985] AC 97
James v The Commonwealth [1939] HCA 9; 62 CLR 339
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51
Kable v State of New South Wales [2010] NSWSC 811; 203 A Crim R 66
Kable v Director of Public Prosecutions (1995) 36 NSWLR 374
Lane v Morrison [2009] HCA 29; 239 CLR 230
Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520
Leerdam v Noori [2009] NSWCA 90; 255 ALR 553
London Corporation v Cox (1867) LR 2 HL 239
Love v Attorney-General (NSW) [1990] HCA 4; 169 CLR 307
MacIntosh v Lobel (1993) 30 NSWLR 441
Matthews v Australian Securities and Investments Commission [2000] FCA 288; 97 FCR 396
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597
Moravia v Sloper (1737) Willes 30; 125 ER 1039
Morrell v Martin (1841) SC 4 Scott NR 300; 3 Man & G 581; 133 ER 1273
Morse v James (1738) Willes 122; 125 ER 1089
New South Wales v Ibbett [2006] HCA 57; 229 CLR 638
O'Chee v Rowley (1997) 142 FLR 1
Olliet v Bessey (1679) Jones T 214; 84 ER 1223
Ousley v The Queen [1997] HCA 49; 192 CLR 69
Painter v Liverpool Oil Gas Light Co (1836) 3 Ad & E 433;111 ER 478
Parker v Commonwealth [1965] HCA 12; 112 CLR 295
Peacock v Bell and Kendal (1667) 1 Wms Saund 73; 85 ER 84
Pelechowski v Registrar, Court of Appeal [1999] HCA 19; 198 CLR 435
Peters v Attorney General (NSW) (1988) 16 NSWLR 24
Posner v Collector for Inter-State Destitute Persons (Victoria) [1946] HCA 50; 74 CLR 461
Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330
R v Governor of Brockhill Prison; Ex parte Evans (No 2) [2001] 2 AC 19
R v Oldham Justices; Ex parte Cawley [1997] QB 1
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Ltd [1970] HCA 8; 123 CLR 361
R v Unger [1977] 2 NSWLR 990
Re Macks; Ex parte Saint [2000] HCA 62; 204 CLR 158
Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) [1995] HCA 31; 184 CLR 620
Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511
Residual Assco Group Ltd v Spalvins [2000] HCA 33; 202 CLR 629
Robertson (1997) 92 A Crim R 115
S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549; 143 FCR 217
Sirros v Moore [1975] QB 118
Street v Hearne [2007] NSWCA 113; 70 NSWLR 231
Thomas v Hudson (1847) 16 M & W 885; 153 ER 1450
Tobin v The Queen (1864) 16 CB(NS) 310; 143 ER 1148
United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323
Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; 46 CLR 73
Ward v Murphy (1937) 38 SR (NSW) 85
Williams v Spautz [1992] HCA 34; 174 CLR 509
Texts Cited:
M Aronson and H Whitmore, Public Torts and Contracts (Law Book Co, 1982) pp 148, 151-152

M Aronson, "Misfeasance in Public Office: A Very Peculiar Tort", (2011) 35 Melb UL Rev 1 at 9-15

R P Balkin and J L R Davis, Law of Torts (4th ed, 2009) [25.23]

Burn's Justice of the Peace, 30th ed (1869), vol 1 at 1021

S Kneebone, Tort Liability of Public Authorities (LBC, 1998)

NSW Law Reform Commission, Report on Proceedings by and against the Crown (1975) at [13.4]-[13.5], [13.27]

C L Pannam, "Tortious Liability for Acts Performed under an Unconstitutional Statute" (1965-67) 5 Melb UL Rev 113 at 116-117

C L Pannam, "Unconstitutional Statutes and De Facto Officers" (1966) 2 Fed L Rev 37 at 61-62

Sadler, "Liability for Misfeasance in a Public Office", (1992) 14 Syd L Rev 137 at 138
Second Reading Speech, New South Wales Parliamentary Debates, 3rd series, Vol 174, p 4764-4765 (17 March 1983)
Category: Principal judgment
Parties: Gregory Wayne Kable - Appellant
State of New South Wales - Respondent
Representation:
Counsel:

P W Bates/P G White - Appellant
M J Leeming SC/R H Weinstein SC/ J Shepard - Respondent
Solicitors:
Armstrong Legal - Appellant
Crown Solicitor's Office - Respondent

File Number(s): CA 1996/31364
Decision under appeal

Jurisdiction:

9111

Citation:

Kable v State of New South Wales [2010] NSWSC 811

Date of Decision:

2010-07-30 00:00:00

Before:

Hoeben J

File Number(s):

SC 1996/21296

HEADNOTE

[This headnote is not to be read as part of the judgment]

From February to August 1995 the appellant was held in a New South Wales prison in accordance with an order made by a Supreme Court judge, on an application by the Director of Public Prosecutions, purportedly under the Community Protection Act 1994 (NSW). That Act permitted a detention order to be made in respect of the appellant (and no one else) if a judge were satisfied that he was likely to commit a serious act of violence and it was appropriate to hold him in custody. The appellant successfully challenged the constitutional validity of the Act in the High Court. The High Court held that the Act was inimical to the exercise of judicial power. It was wholly invalid, as were all of the steps taken under it.

In 1996 the appellant commenced the current proceedings, seeking damages arising from the conduct of the State and its officers in bringing proceedings against him and for detaining him for a period of six months solely on the basis of the detention order made under the invalid Act.

On 9 November 2009 a trial commenced before Hoeben J. The claim involved three causes of action, being abuse of process, malicious prosecution and false imprisonment. Hoeben J held that there was no case to go to a jury in respect of any of the three causes of action.

On 1 November 2010 Mr Kable appealed from that decision, as of right, to this Court. The issues for determination on appeal were whether the trial judge erred in dismissing the claim in respect of:

(i) malicious prosecution,

(ii) abuse of process, and

(iii) false imprisonment, and in particular:

(a) whether the order protected the State from liability, and

(b) whether the persons giving effect to the order enjoyed protection from liability.

The Court held, allowing the appeal in part:

In relation to (i) and (ii)

(per Basten JA, Allsop P, Campbell and Meagher JJA and McClellan CJ at CL agreeing)

1. There was no basis for finding that the Director of Public Prosecutions commenced the proceedings for any purpose other than that revealed by the legislation, nor that, applying the standards contained in the Community Protection Act, there were not reasonable grounds for seeking the order provided by the Act. The possibility that the Act exceeded the constitutional powers of the legislature could not of itself turn otherwise legitimate proceedings into a malicious prosecution: [111]-[112]

A v State of New South Wales [2007] HCA 10; 230 CLR 500 applied.

2. Malice on the part of the Parliament could not be established. It is not open to a litigant to impugn the motives of the Parliament. To provide compensation for those who suffer from a purported, but unconstitutional, legislative act is to confer a right to compensation based on unconstitutionality, in the absence of any common law tort: [114]

Bill of Rights 1688 (Imp); O'Chee v Rowley (1997) 142 FLR 1; Street v Hearne [2007] NSWCA 113; 70 NSWLR 231; James v The Commonwealth [1939] HCA 9; 62 CLR 339 applied.

In relation to (iii)(a)

(per Allsop P, Campbell and Meagher JJA and McClellan CJ at CL agreeing)

3. Neither the enquiries as to whether the making of the orders was an act of a judicial character and whether the orders were judicial orders, nor the conclusions that they were, is open to this Court. The High Court has decided these questions: [17]

Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 applied, Residual Assco Group Ltd v Spalvins [2000] HCA 33; 202 CLR 629; Haskins v Commonwealth [2011] HCA 28; 244 CLR 22 referred to.

4. The conception of an order of a superior court carrying with it the presumptions of jurisdictional authority and validity has within it the further assumption of the judicial character of the act of making the order. The order of the Court did not have the attendant characteristic of validity as an order of a superior court of record, until set aside: [18], [21]

Love v Attorney-General (NSW) [1990] HCA 4; 169 CLR 307 applied, Ousley v The Queen [1997] HCA 49; 192 CLR 69; Grollo v Palmer [1995] HCA 26; 184 CLR 348 referred to.

(per Basten JA)

5. The principle that an order of a superior court has effect until set aside depends on the order being made in the exercise of judicial power by a superior court: [139]-[141], [155]-[160]

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597, Pelechowski v Registrar, Court of Appeal [1999] HCA 19; 198 CLR 435; United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323; Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342; Love v Attorney-General (NSW) [1990] HCA 4; 169 CLR 307 applied; Peters v Attorney General (NSW) (1988) 16 NSWLR 24 referred to.

6. The order was an invalid non-judicial order, and was not rendered an exercise of judicial power by the exercise of federal judicial power in determining the constitutional challenge to the Community Protection Act: [149]-[153]

Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 applied; Residual Assco Group Ltd v Spalvins [2000] HCA 33; 202 CLR 629; Felton v Mulligan [1971] HCA 39; 124 CLR 367; referred to; Re Macks; Ex parte Saint [2000] HCA 62; 204 CLR 158 distinguished.

In relation to (iii)(b)

(per Allsop P, Campbell and Meagher JJA and McClellan CJ at CL agreeing)

7. There is no basis for extending the protection of an officer from tortious liability when enforcing a judicial order of a court, valid on its face, to an order which is a wholly invalid exercise of non-judicial power of the kind described by the High Court in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51: [42]

Robertson (1997) 92 A Crim R 115 distinguished.

8. Because the gaoler required the statutory protection of a provision of a statute such as Prisons Act 1952 (NSW), s 46, the operation of the Law Reform (Vicarious Liability) Act 1983 (NSW), s 10, will mean that the State is vicariously liable: [57]

(per Basten JA)

9. Given the statutory protection once provided by the Constables Protection Act 1750 (Imp) and the Prisons Act 1952 (NSW), it is implausible that any common law principle now operates to provide protection in respect of the execution of orders purportedly made under statutory authority (and no other authority): [164]-[165]

Love v Attorney-General (NSW) [1990] HCA 4; 169 CLR 307 applied.

10. The Law Reform (Vicarious Liability) Act 1983 (NSW), s 8 imposes vicarious liability on the State for conduct which would have been a tort, absent statutory protection. Further, s 8 removed the State's immunity for the acts of officers exercising independent functions. Whatever statutory protection the gaoler may have enjoyed did not enure to the benefit of the State, by operation of s 10: [166], [170]

Judgment

ALLSOP P: I have read the reasons of Basten JA. I agree with his reasons as to abuse of process and malicious prosecution. I also agree in substance with his reasons as to false imprisonment. Thus, I agree with the orders which his Honour proposes. Given the importance of the conclusion on the claim for false imprisonment and of the reasons therefor, I would prefer to express in my own words why this claim should not be struck out.

The first matter to keep firmly in mind in considering the operation of the law in Australia, both general and statutory, is that it takes its place and shape by reference to the fundamental law of the Constitution. Thus, when one is considering the content of rules of common law, or the proper construction of statutes, the foundational concepts and demands of the Constitution are ever present as informing, and sometimes shaping, norms: Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520 at 566.

In Kable v The Director of Public Prosecutions for the State of New South Wales [1996] HCA 24; 189 CLR 51, orders were made allowing the appeal and setting aside the orders of this Court. In place of those orders the appeal to the Court of Appeal was allowed, and the order of Levine J was set aside with consequential costs orders. The decision of the majority (Toohey, Gaudron, McHugh and Gummow JJ) was that the relevant provisions of the Community Protection Act 1994 (NSW) (the "CP Act") were unconstitutional. The essential reasoning of the four justices for that conclusion of unconstitutionality included reliance upon the proposition that 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: Toohey J at 98; Gaudron J at 103-104, 106, 107 and 108; McHugh J at 109, 121-122, Gummow J at 127-128, 132, 133-134, 137, 141 and 143. It is unnecessary to set out in full the views of their Honours. It suffices to refer to the following. Toohey J (at 98) described the CP Act as having an "extraordinary character" and his Honour said that the acts performed by the Court under it were non-judicial functions and were of such a nature "that public confidence in the integrity of the judiciary as an institution ... is diminished". Gaudron J (at 106 and 108) described the proceedings contemplated by the CP Act, despite the attempt to "dress them up as legal proceedings", as "not in any way partak[ing] of the nature of legal proceedings", as "the antithesis of the judicial process" and as "mak[ing] a mockery of [the judicial] process". McHugh J (at 122) described the involvement of the Court as "the exercise of non-judicial functions" and the Court "as the instrument of a legislative plan, initiated by the executive government, to imprison [Mr Kable] by a process that is far removed from the judicial process...". Gummow J (at 132) described the authority purported to be conferred on the Court by the CP Act as "non-judicial in nature [and] repugnant to the judicial process in a fundamental degree." His Honour (at 134) described the CP Act as "an extraordinary piece of legislation" and its form being such as to make the "judiciary ... apt to be seen as but an arm of the executive which implements the will of the legislature."

These are not expressions of matters res inter alios acta. These are not findings of fact sought to be utilised impermissibly in another proceeding contrary to the Evidence Act 1995 (NSW), s 91. These are the conclusions of the majority of the High Court justices essential to the reasoning as to the unconstitutionality of the statute in Mr Kable's suit against the Director. The State of New South Wales appeared in Kable by and through the Solicitor General. The reasoning stands as determinative of the character of the "orders" of this Court and of the character of the functions, processes and authority exercised or purported to be exercised by this Court in 1995.

Orders of a superior court of record?

The first basis upon which the State of New South Wales relies to defeat Mr Kable's claim for false imprisonment is that the orders of the Court that led to his incarceration, until Grove J refused to make an order continuing his imprisonment, were orders of a superior court of record and thus valid and effective until set aside. To use a convenient legal label, the orders were voidable and not void. Thus, judged by reference to the time when the acts were performed by the gaoler, and vicariously the State, the imprisonment of Mr Kable was lawful, being supported by a then valid and subsisting order. This argument depends for its success on the ascription of this consequence to an order under the CP Act.

The character of an order of a superior court of record such as the Supreme Court of New South Wales is that it has effect until set aside: Cameron v Cole [1944] HCA 5; 68 CLR 571 at 590-591, Re Macks; Ex parte Saint [2000] HCA 62; 204 CLR 158, and other cases referred to by Gaudron J in Re Macks at 184 [49], fn 80. This is because, at common law, a legal presumption is made about the general jurisdiction of a superior court and the validity of its orders until set aside: Peacock v BellandKendal (1667) 1 Wms Saund 73 at 74; 85 ER 84 at 87-88.

The Federal Court of Australia is not a court of general jurisdiction, but is a superior court of record. Its jurisdictional authority is circumscribed by the Constitution, ss 75 and 76: Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511; and by the statutes that confer jurisdiction upon it under the Constitution, s 77(i). Nevertheless, the circumscription of its jurisdiction by reference to the terms of ss 75 and 76 of the Constitution did not deny the binding nature of a decision (erroneous in fact: Re Wakim) that the Federal Court had jurisdiction and of an order under that (wrongfully) assumed jurisdiction, until set aside. This was so, not through the direct or naked operation of a common law presumption, but through the conception of a superior court of record as the subject of the operation of ss 71, 76(ii), 77(i) and 51(xxxix), or ss 76(i), 76(ii) and 77(i) of the Constitution: Re Macks at 177-178 [19]-[23], 185-187 [51]-[57], 235-237 [214]-[220], 247-249 [253]-[256] (as to the former) and at 279 [343]-[344] (as to the latter).

Although this controversy is one to be quelled within federal jurisdiction (because of the operation of s 76(i) of the Constitution), we are not concerned here with the type of limits of jurisdiction arising out of the reach of ss 75 and 76 of the Constitution as lay at the heart of Re Macks. That is important for at least one reason. The constitutional deficiency under consideration in Re Macks was not concerned with the Federal Court exercising non-judicial power. Rather, it was with the Federal Court exercising judicial power, in the general sense, but beyond that which Ch III of the Constitution permitted Parliament to confer upon it by reference to ss 75 and 76 and to the word "matter". The order of the Federal Court in Re Macks that was valid until set aside was a judicial act, though without constitutionally founded jurisdiction. See generally Kable at 136-137 per Gummow J.

In due course, it will be necessary to examine the question whether the binding effect of an order of a superior court until set aside depends upon the order being an exercise of power that is judicial in character or, if non-judicial, being ancillary or incidental to the exercise of judicial power. I do not use the phrase "judicial power" in the sense confined by Ch III of the Constitution: cf Gummow J in Kable at 136-137. Also, the use of the expression is not intended to overlook the distinction made by the Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) in Love v Attorney-General (NSW) [1990] HCA 4; 169 CLR 307 at 321 between the character of the power and acting under the power:

"However, the conclusion that the power to issue warrants pursuant to s. 16 of the State Act is not judicial is not decisive of the question whether or not the act of issuing a warrant is itself judicial."

For now, I will assume that question to be answered in the affirmative, and proceed to examine whether the order is a judicial act and whether the making of the order was an exercise of judicial power in the sense above described.

In Love, it was necessary to ascertain whether the act of issuing the warrant was judicial in character in order that the effect of the warrant be ascertained. At 318 the Court said:

"It is first necessary, in order to consider the operation of the warrant, to determine whether the act of issuing it is judicial or administrative in nature. If the issuing of the warrant is an administrative act, then the ambit of the warrant must be determined in the light of the scope of the power conferred upon the court by the statute. On that footing the ultimate effect of the warrant depends upon the construction of the power and of the warrant itself. The construction of the warrant may give rise to a question of severance. On the other hand, if the act of issuing a warrant is judicial in nature, then the warrant takes on the attributes of a judicial order. In that event, the appellants argue that the warrants in the present case are judicial orders issued in excess of jurisdiction and as such they cannot be severed or read down. Accordingly, they must be declared void and set aside. That is how the argument runs." (emphasis added)

That recitation of the argument by the Court should be qualified by the record of the argument of Mr Handley QC and Ms Beazley, as they then were, set out at 309:

"The warrants were judicial orders .... Accordingly the jurisdiction is to be treated as an addition to the Court's ordinary jurisdiction and all the usual incidents follow .... The declaration made by the Court of Appeal is inappropriate if the warrants are judicial orders. Orders of the Supreme Court cannot be declared void ab initio..." (emphasis added)

Thus, the argument in Love involved, in part, the consequence of an order of a superior court being valid until set aside. The question whether the order had that character and whether consequences flowed from it were analysed by reference to whether the act was judicial in character or not. In doing so, their Honours first raised, and then put to one side, the "loose sense" in which one could say it was a judicial act - by its being an instrument issued by a judge of the Supreme Court. That, however, did not stamp it with the character of a judicial order "unless the warrant issues as a result of a determination made by the judge in his or her judicial capacity" (at 319). Their Honours recognised the difficulty of comprehensive definition of judicial power, though its broad elements were identified by Griffith CJ in Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; 8 CLR 330 at 357, and their Honours noted the observations of Kitto J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Ltd [1970] HCA 8; 123 CLR 361 at 374-375 (see Love at 319-320). After considering the exercise of the power, their Honours concluded at 321-322:

"Although the administrative power to issue a warrant is in terms conferred upon the court rather than the several judges of the court, the exercise of the power is essentially administrative in nature. The warrant is the outcome of a complaint upon which the judge must bring his or her judicial mind to bear and decide on the material before him or her whether the warrant should issue. The judge is under a duty to act judicially and to that extent the issue of the warrant is a judicial act but it is not a 'judicial act in the same sense as is an adjudication to determine the rights of parties', to use the words of Windeyer J. in Electronic Rentals. It is not an order inter partes from which a party whose conversations may be overheard has a right of appeal. To adapt the language used in Hilton v. Wells, under s. 16 a judge makes no order and nothing that he or she does is enforced as an order of the court. Therefore, if a warrant is granted, its effect depends entirely upon the State Act." (citations omitted)

Having come to that conclusion, the Court said at 322-323:

"Once it is accepted that the warrant is not a judicial order, it becomes an instrument made pursuant to a circumscribed statutory authority."

This was a conclusion that the issue of the warrants was not a judicial act and thus not an order of a superior court with the relevant consequences that flow from that.

Here, the State pointed to the features of the making of the orders by Hunter J and Levine J that were said to characterise the exercise of the power as judicial and the order as a judicial order. Reference was made to its form as an order of the Court and to the manner in which the judges concerned conducted hearings and referred to material before them in an exercise redolent of judicial activity. In Love, the fact that the power was conferred on the Court was "of limited significance" (Gummow J in Grollo v Palmer [1995] HCA 26; 184 CLR 348 at 389) in the determination of the character of the act. It is a factor that is not determinative.

Neither the enquiries as to whether the making of the orders was an act of a judicial character and whether the orders were judicial orders, nor the conclusions that they were, are open to this Court. The High Court in Kable has decided these questions. That is not to impugn the integrity of the judges who undertook these tasks or to overlook the diligence and care with which they attended to the tasks that they considered to be required of them by the CP Act. The descriptions of the character of the power in the CP Act and the functions exercising it in the judgments of the majority in Kable, epitomised by the expressions of the matter set out in [3] above, resolve these questions of the characterisation of the power being exercised and of the acts of exercise of the power. It would be in the teeth of the majority's views in Kable to describe these as judicial orders of a superior court of record or the act of making them judicial, in any relevant sense of judicial capacity. The posited Supreme Court orders here (those of Hunter J and Levine J) had their legal source in the CP Act found to be unconstitutional. The decision of the High Court in Kable was to the effect that the CP Act was (and always was) invalid and of no operative effect to create or affect rights or obligations or to vest lawful authority in a court to act pursuant to it: Residual Assco Group Ltd v Spalvins [2000] HCA 33; 202 CLR 629 at 653 [58]-[59] and cases there cited; Haskins v Commonwealth [2011] HCA 28; 244 CLR 22 at 847-848 [45]-[46]. For the above reasons, the orders cannot be characterised as judicial orders or the result of any exercise of judicial power.

Does this last conclusion deprive them of the incident of orders of a superior court of record: that is valid until set aside? The reasoning in Love, to which I have already referred, gives an affirmative answer to this question. If an act of a court, including a superior court, is not relevantly of a judicial character but administrative (and not properly ancillary to the exercise of judicial power), it falls to be analysed otherwise than by reference to the attributes of a judicial order and only by reference to the authority conferred by the underlying Act. In this case, the latter was no authority at all. This conclusion is implicit in what I might call the Cameron v Cole cases. They are all cases concerning orders of courts. No issue arose in most of them as to whether an order of the court was judicial in character. In almost all cases that question will go without saying; after all, that is what courts do in their function of exercising the judicial arm of government. In Australia, this power is exercised as part of an integrated court system, recognised by, and tied into, the operation of the Constitution. The power is of a distinctive kind, involving the application of judicial method to the resolution of disputes, by reference to irreducible conceptions of fairness and justice. That distinctive power provides the foundation for the carrying on of the third branch of government in resolving disputes and declaring the law, and for the confidence of the public (the society served by the polity's government, including its judicial branch) that that distinctive power is exercised impartially and independently. Judicial power is not limited to the notion of jurisdiction, that is, the authority to decide. As the Court said in Love, judicial power is not susceptible of comprehensive definition. Whatever may be the elements of essence and context that lead to the insusceptibility of such institutional power in society to a priori definition, the conception of an order of a superior court carrying with it the presumptions of jurisdictional authority and validity has within it the further assumption of the judicial character of the act of making the order.

In Ousley v The Queen [1997] HCA 49; 192 CLR 69 at 100-1 and 107, McHugh J said:

"A warrant issued under the Act is far removed from the exercise of the judicial power of the Supreme Court, the County Court and the Magistrates' Courts of Victoria. Its issue is an administrative, not a judicial act. In Love v Attorney-General (NSW), this Court held that a judge considering an application for a warrant under legislation similar to the Act does not perform a judicial function and is bound to act judicially only in the sense that he or she must act in a just and fair manner and with judicial detachment. Warrants issued under the Act cannot be distinguished from the warrants considered in Love.

Once the issuing of a warrant is classified as an administrative act, a person affected by that act may seek judicial review of it and have it declared void or set aside by an appropriate court or tribunal. Furthermore, since the prevailing theory is that an administrative act or order made outside jurisdiction is void, a litigant, affected by the act or order, may challenge it collaterally. In Posner v Collector for Inter-State Destitute Persons (Vict), Dixon J pointed out that:

'when a party is entitled as of right upon a proper proceeding to have an order set aside or quashed, he may safely ignore it, at all events, for most purposes. It is, accordingly, natural to speak of it as a nullity whether it is void or voidable, and, indeed, it appears almost customary to do so.'

...

In Carmody v Mackellar [(1996) 68 FCR 265], a case concerned with the issue of warrants pursuant to the Customs Act 1901 (Cth) and the Telecommunications (Interception) Act 1979 (Cth), Merkel J expressed the view, correctly in my opinion, that Love removed any previous doubt about a trial judge's jurisdiction to entertain a collateral attack on the issue of a warrant under those two Acts or similar legislation. His Honour attributed that doubt at least in part to 'the special position of judicial or court orders, particularly in a superior court of record'. Merkel J quoted the following statement made by this Court in Love [at 322-323]: '[o]nce it is accepted that the warrant is not a judicial order, it becomes an instrument made pursuant to a circumscribed statutory authority.'

His Honour went on to say:

'it must be open to a trial court in which the issue of validity ... arises, to hear and determine that issue ... The fact that the warrant was issued by a judicial officer is of no relevance to the broad jurisdiction of the trial court to determine that there has been jurisdictional error.'

...

In the case of superior courts, the common law presumed until the contrary was shown that a judicial order had been made regularly." (emphasis added; some citations omitted)

The description by McHugh J in the last extract of the kind of order that carries the presumption of regularity as "judicial" flowed from his Honour's reasoning, which was based on the reasoning in Love. See also in Ousley, Toohey J at 80, Gaudron J at 87, Gummow J at 131 and Kirby J (in dissent) at 145. See also Grollo v Palmer at 360 and 389.

The order of the Court did not have the attendant characteristic of validity as an order of a superior court of record, until set aside. That basis of protection of the State fails.

A principle at common law protecting anyone who relies on the order of the Supreme Court here?

The second basis upon which the State relies to defeat Mr Kable's claim for false imprisonment is the existence, it was submitted, of a common law principle that, whether or not the order was of a superior court, persons who obey court orders are protected from suit. The breadth of the proposition makes one immediately pause for thought, in particular in the light of what was said by Simpson ACJ in Feather v Rogers (1909) 9 SR (NSW) 192 at 197:

"It is no doubt very hard upon police officers who are bound to execute the warrants of Justices, that they should be made liable for so doing on the ground that the Justice issuing the warrant exceeded his jurisdiction. It is very hard on laymen that they should have to take the risk of the warrant being irregular. It is more important, however, that the law should be upheld, notwithstanding the liability of constables and other persons.

It was because of this hardship that the Act 24 Geo. II. c. 44, s. 6, was passed".

The statute mentioned by Simpson ACJ was the Constables Protection Act 1750 (the "1750 Act") which by s 6 gave protection to "any constable, headborough or other officer, or ... any person or persons acting by his order and in his aid, for any thing done in obedience to any warrant under the hand or seal of any justice of the peace". The statute was repealed in New South Wales by the Imperial Acts Application Act 1969 (NSW).

Before examining whether this rule exists, and, if it does, its reach and underpinnings, it is necessary to dispose of a related, but clearly distinct principle, which is not determinative of the present position. Whilst no one can be liable under an unconstitutional or repealed statute, if a person be convicted before unconstitutionality is recognised or before repeal occurs, liability merges in and depends on the conviction and not the statute, and does not lapse. The operation of the conviction does not depend upon the law creating the offence, but upon the judgment or sentence of the competent (not necessarily superior) court: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; 46 CLR 73 at 106; R v Unger [1977] 2 NSWLR 990 at 995. The legal theory and policy underpinning this approach was lucidly explained by Street CJ in Unger at 995-996-stability in the operation of the legal system, but in a manner that facilitates the incremental moulding of the law in the light of changing social context; finality and stability in past decisions permitting flexibility in the development of legal principle. We are not dealing here, however, with conviction according to "the authority belonging to a judgment or sentence of a competent court" (Dignan at 106) here. Rather, we are dealing with the non-judicial incarceration of a person, without valid statutory foundation, "dressed up" as legal proceedings, in a process repugnant and antithetical to legal proceedings and to the exercise of judicial power.

The posited common law principle, having its source in Dr Drury's Case (1610) 8 Co Rep 141b at 143a; 77 ER 688 at 691, is that if acts are done in accordance with a judicial order, later set aside, they are protected as "acts done in the execution of justice, which are compulsive". This passage was cited in Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; 53 CLR 220 at 225, where Rich, Dixon, Evatt and McTiernan JJ said:

"Acts done according to the exigency of a judicial order afterwards reversed are protected: they are 'acts done in the execution of justice, which are compulsive' (Dr. Drury's Case). And proceedings which, although based upon a judgment, are brought to completion before its reversal are not avoided. For 'collateral acts executory are barred, but not collateral acts executed' (Dr. Drury's Case)." (citations omitted)

In MacIntosh v Lobel (1993) 30 NSWLR 441, Kirby P said at 459-60:

"It is a well-known principle of the common law that a judgment reversed is the same as no judgment: see, eg, Coleridge J in R v Drury (1849) 3 Car & K 190 at 199; 175 ER 516 at 520. Equally, acts done according to the exigency of a judicial order, afterwards reversed, are protected. They are 'acts done in the execution of justice, which are compulsive': see Commissioner for Railways (New South Wales) v Cavanough (1935) 53 CLR 220 at 225. At least in respect of the orders of a superior court, proceedings which are based upon a judgment, later reversed, and which are brought to completion before its reversal are not thereby avoided: see Re Goldburg (No 2); Ex parte Page [1912] 1 KB 606 at 610."

The above expressions of principle can be seen to be rooted in the order and underlying process being judicial.

In London Corporation v Cox (1867) LR 2 HL 239 at 269, Willes J said the following on the position of the garnishee, who pays under compulsion of the attachment issued without jurisdiction, at the suit of his own creditor:

"In such a case, although the proceeding in the Mayor's Court was wrong, yet the garnishee, not being party or privy to the wrong, and paying honestly in obedience to process of law apparently valid, has the same protection as an officer who executes process apparently regular, without knowing of the want of jurisdiction; and who, not being in a condition to resist, is protected, not because the proceeding was well founded, but notwithstanding it was ill founded: Westoby v. Day; Wood v. Dunn. This very distinction between the Plaintiff in the inferior Court and the garnishee, 'who is a third party, and no way privy,' was pointed out in the case relied upon by Mr. Pollock: Banks v. Self." (citations omitted)

Whilst Willes J referred to the apparent validity of the process, it was nevertheless the "process of law" that was being referred to. The invalid orders were garnishee orders, invalid exercises of power judicial in character or sufficiently close and connected to be described as processes of the law.

Posner v Collector for Inter-State Destitute Persons (Victoria) [1946] HCA 50; 74 CLR 461 concerned an invalid order for maintenance. The facts were summarised by Latham CJ at 465-6 as follows:

"On 16th January 1946 Mordka Hirsch Posner was served in Victoria with a certificate of a maintenance order which had been made against him in Perth, Western Australia, on 24th October 1941. On the same day a demand was made upon him by the Collector for Inter-State Destitute Persons for payment of £438 arrears due under the order. On 18th January 1946 a summons (in the form prescribed by regulations made under the Maintenance Acts 1928-1938 (Vict.)) was issued calling upon him to show cause why he should not be imprisoned for failure to pay moneys in accordance with the order. Upon the hearing of the summons Posner satisfied the Court of Petty Sessions, Melbourne, that he had not been served with any process relating to the proceedings in Western Australia and that he had become aware only on 16th January 1946 of the order which had been made in Perth in 1941. The court was of opinion that the order was a nullity, but that under the Victorian Act it was bound to give effect to it, and it accordingly ordered that in default of payment of £440 arrears of maintenance the defendant Posner should be imprisoned for six months, the money to be paid in instalments of £150 forthwith and £2 5s. per week. The defendant took proceedings by way of order to review. Gavan Duffy J. held that the Western-Australian order was a nullity but that nevertheless it was enforceable in Victoria by reason of the provisions of the Maintenance Acts. Posner now appeals to this Court from the order of the Supreme Court discharging the order nisi to review and affirming the decision of the magistrate."

Starke J said at 476:

"A party, however, executing the process of an inferior court in a matter beyond its jurisdiction is liable to action and cannot justify under such process whether he knows the defect or not but the magistrate is only liable if he knew of the defect of jurisdiction (Calder v. Halket [(1840) 3 Moo PC 28 at 78; 13 ER 12 at 36]; Houlden v. Smith [(1850) 14 QB 841; 117 ER 323]; Mayor etc. of London v. Cox [(1867) LR 2 HL 239 at 263]). And an officer executing and obeying such process is protected (ibid)."

The references by Starke J are consistent with the principle, enunciated as to officers, being referable to the exercise of judicial acts.

Further, in Posner, Dixon J said at 481-2:

"Another rule was expressed by Denman C.J. in Andrews v. Marris [(1841) 1 QB 3 at 16; 113 ER 1030 at 1036]. Speaking of one of the defendants, his Lordship said:-'He is the ministerial officer of the commissioners, bound to execute their warrants, and having no means whatever of ascertaining whether they issue upon valid judgments or are otherwise sustainable or not. There would therefore be something very unreasonable in the law if it placed him in the position of being punishable by the Court for disobedience, and at the same time suable by the party for obedience to the warrant. The law, however, is not so. His situation is exactly analogous to that of the sheriff in respect of process from a Superior Court; and it is the well known distinction between the cases of the party and of the sheriff or his officer, that the former, to justify his taking body or goods under process, must show the judgment in pleading, as well as the writ; but for the latter it is enough to show the writ only; Cotes v. Michill [(1682) 3 Lev. 20; 83 ER 555]; Moravia v. Sloper [(1737) Willes 30 at 34; 125 ER 1039 at 1041]. It was said, indeed, for the plaintiff, that these and the numerous other authorities which might be cited to the same effect all went upon the principle that the proceeding, however irregular, was the Act of the Court.' Thus a conviction or order might be inefficacious in favour of a party but might have some operation as against the other party in favour of officers etc."

The principle expressed by Denman CJ, and applied by Dixon J, was directed to an act of the court, that is the judicial act or proceeding, being the order of the court which the officer was bound to execute.

In such cases, the courts are protecting third parties such as court officers or garnishees from the consequences of an invalid order (not being limited to an order of a superior court). Implicit and explicit in them is the protection of the authority of judicial proceedings. Further, there is every reason to consider that an officer of a court should be protected by his actions in obedience to an order of the court of which he is either part or an officer. Orders directed to police or gaolers in the form of a court order, not issued in the course of judicial process, but having the true legal character of an executive warrant, which is wholly lacking authority, do not stand as necessarily bringing the same protection to those who obey them as might be thought appropriate to officers of the court itself, even in such circumstances. It is unnecessary to explore this possible distinction. An invalid warrant gives a policeman no protection from the consequences of invasion of common law rights of person or property; it is statute that protects him: Feather v Rogers and Carroll v Mijovich (1991) 25 NSWLR 441 at 446-447 and 457.

In Hadkinson v Hadkinson [1952] P 285 at 288, Romer LJ (with whose judgment Somervell LJ agreed) said in the context of the disobedience of the appellant to an order of the divorce court about not removing the child of the marriage from the jurisdiction:

"It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. 'A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it. ... It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void-whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.' (Per Lord Cottenham L.C. in Chuck v. Cremer.)" (citations omitted)

It is unnecessary to explore the validity, for all purposes, of this expression of the matter, in particular in respect of orders of inferior courts that lack jurisdiction or authority. The validity of his Lordship's expression of the matter as to orders of superior courts of record may be readily accepted. The report does not make clear whether the original order was of a superior court. Of course, it would have been had it been made by the then Probate, Divorce and Admiralty Division of the High Court of Justice. There is, however, implicit in the expression of the matter by Romer LJ, the judicial character of the order. The kind of constitutional circumstances and considerations relevant here are unlikely to arise in England and certainly were not present in the case before the Court of Appeal in Hadkinson.

In Sirros v Moore [1975] QB 118 police officers obeyed an oral order of a Crown Court judge and took into custody an alien after he had left court on the dismissal of his appeal from an order of a magistrate recommending deportation. The alien sued the judge and the police officers. The judge was held to have immunity. The police carrying out orders directed to them by the judge were likewise protected. Lord Denning at 137 relied on London Corporation v Cox. No reasons were given other than reference to Cox. The Constables Protection Act 1750 was also available. Buckley LJ at 144 found the actions of following the instructions of the judge justifiable without expressing any reasons. The position of the police in Sirros can be equated with that of officers of the court. They were acting under the immediate orders of a judicial officer after the exercise of judicial process.

The passage of Romer LJ in Hadkinson was cited with approval by Lord Diplock in Isaacs v Robertson [1985] AC 97 at 101-2, but in a context where the Privy Council was dealing with the orders of a superior court, a court of "unlimited jurisdiction" (at 101). It was also cited with approval by Simon Brown LJ (with whom Scott Baker and Latham JJ agreed) in R v Oldham Justices; Ex parte Cawley [1997] QB 1 at 15-16.

The Full Court of the Western Australian Supreme Court, in Robertson (1997) 92 A Crim R 115, in reasons delivered in substance by Steytler J (with which Malcolm CJ and Franklyn J agreed) dealt with an appeal against the dismissal of a claim for false imprisonment against the State of Western Australia by a person who had been sentenced to fines and costs for certain offences and, in lieu of payment, imprisonment. In court, the magistrate pronounced that the two periods of imprisonment of 40 and 43 days were "to be cumulative". The person had also been sentenced to four years gaol for other offences. The person's solicitor advised him that he need not pay the fines since his prison terms for non-payment, though cumulative as between themselves, would be concurrent with the four year sentence. This was in fact the true intention of the sentence, as found by the trial judge, a proposition not contested on appeal. After a successful appeal against the severity of the four year sentence, the person was kept in custody for a period of days relative to the sentences in default of payment of the fines, and cumulative upon the non-parole period set by the appeal court in respect of the more serious matter. Each of the warrants that had been signed by the sentencing magistrate stated that the periods of detention in default of payment were cumulative, not only upon each other, but also "on any other sentence or sentences which the offender may be undergoing". This went beyond the sentence imposed (as found by the trial judge). Obviously, no error appeared on the face of the warrant to alert the gaoler to the error that had been made by the magistrate. At 122-125 Steytler J reviewed the authorities in connection with a person in the position of a gaoler following the direction contained in a warrant apparently valid on its face. He said:

"It would be an odd result, in a case in which a prison officer was simply enforcing a magistrate's order, if he or she were to be held liable because of the invalidity of the order when the person issuing the order was not so liable, at least in circumstances in which the order was valid on its face.

The courts have generally set their face against this kind of result.

...

[I]t seems to me to be difficult to deny the proposition, when regard is had for existing authority and for legislation in this State, that a prison superintendent may not be held liable for acting on a warrant which is, on the face of it, valid but which later turns out to have been wrongly issued for reasons which had not been known to that superintendent.

...

There is, in this State, no legislative provision which denies the application of the principle to prison superintendents. Indeed, those provisions of the Justices Act to which we were referred in the course of argument tend to support the efficacy of a warrant until set aside by a court of competent jurisdiction. Thus, s 23 of that Act provides that every act done or purporting to have been done by or before a Justice shall be taken to have been done within his jurisdiction without an allegation to that effect unless and until the contrary is shown. (See also ss 22, 36 and 37 of that Act.)

In the circumstances of this case, and in the light of the authorities to which I have referred, it seems to me that, if it be accepted that the warrant was unlawful and subject to being set aside, that did not render unlawful the conduct of the prison superintendent in acting upon the warrant. Rather, the warrant, being ex facie an order of a court of competent jurisdiction, was required to be obeyed by the prison authorities until discharged by a court of competent jurisdiction.

That being so there is no basis for any finding of liability on the part of the Superintendent of the prison in which the appellant was incarcerated."

Steytler J then distinguished Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 as a case concerning the wrongful calculation of remission entitlements.

The principle that appears to be enunciated in Robertson can be taken as the following: that a prison officer enforcing a judicial order, valid on its face, but in fact legally invalid, of a judicial officer of a court of competent jurisdiction, acts lawfully in, and is not liable in tort for, complying with it. Implicit in the reasoning of Steytler J and in all the cases referred to by him is that the character of the order of the court is judicial. The Court in Robertson was not dealing with the issue of an executive warrant. True it is that the character of the order here as non-judicial was not apparent on the face of the order, which appeared to be judicial since it was made by the Court. That is no basis, however, for extending the principle enunciated by the Full Court of the Western Australian Supreme Court to an order, in form made by a court, which is in its true character a wholly invalid exercise of non judicial power of the kind described by the High Court in Kable. It was not argued that Robertson was plainly wrong. It can be accepted as dealing with judicial orders made by courts of competent jurisdiction. There is no call from its own terms to extend it to an "order" of the kind and character here. Thus the principle as above enunciated is to be understood as applicable to a judicial order in the sense discussed in Love.

Professors Aronson and Whitmore in Public Torts and Contracts (Law Book Company, 1982) doubt the correctness of Sirros v Moore, and doubt the existence of any generalised common law protective principle. Those learned authors, however, at page 152 recognise that there are cases that support the view that the common law's protection of a court officer acting on an apparently valid order or warrant was substantive and not just evidentiary: Higginson v Martin (1677) 2 Mod 195; 86 ER 1021; Olliet v Bessey (1679) Jones T 214; 84 ER 1223; Hill v Bateman (1726) 2 Strange 710; 93 ER 800; Moravia v Sloper (1737) Willes 30; 125 ER 1039; Morse v James (1738) Willes 122; 125 ER 1089; Painter v Liverpool Oil Gas Light Co (1836) 3 Ad & E 433;111 ER 478; Carratt v Morley (1841) 1 QB 18; 113 ER 1036; Thomas v Hudson (1847) 16 M & W 885; 153 ER 1450; Andrews v Marris (1841) 1 QB 3; 113 ER 1030; Demer v Cook (1903) 88 LT 629; Ward v Murphy (1937) 38 SR (NSW) 85 and Gerard v Hope [1965] Tas SR 15. To these cases can be added Henderson v Preston (1888) 21 QBD 362 (Court of Appeal consisting of Lord Esher MR, Lindley and Bowen LJJ) following Olliet v Bessey; and there can also be added the cases referred to by Willes J in Moravia v Sloper at 34-35; 1041-1042.

All of these cases concerned the order or warrant issued by a court, implicitly being a judicial act in the course of, or after, judicial proceedings which the officer in his duties was bound to obey: see especially Willes J in Moravia v Sloper at 34-35; 1041-1042. In Painter v Liverpool Gas Co, Lord Denman CJ stated that officers were justified in executing a warrant because they were obliged not to canvass its validity and that Acts of Parliament had been passed for their protection. In Gerard v Hope, Crisp J perceived a restriction on the defence of a constable following an order of an inferior court to orders which the judicial officer had jurisdiction to make. In this respect, Crisp J referred to Morrell v Martin (1841) SC 4 Scott NR 300 at 306; also reported in 3 Man & G 581; 133 ER 1273, Andrew v Marris, Carratt v Morley and Burn's Justice of the Peace, 30th ed (1869), vol 1 at 1021. Certainly the judgment of Tindal CJ in Morrell v Martin supports that limitation. Tindal CJ (at 3 Man & G at 593-597; 133 ER at 1278-1279) said that the action of the justices of the peace in issuing the warrant outside their jurisdiction, as opposed to merely irregularly, was fatal to a plea of justification by the person to whom the warrant was directed. Tindal CJ identified the terms of the statute (the 1750 Act) as indicative of a matter to be dealt with by the Parliament and not (as Steytler J reasoned in Robertson at 125) indicative of the conformance of the common law to the statute.

In Olliet v Bessey the Court of King's Bench did not appear so to limit the matter by reference to jurisdiction. Lord Esher in Henderson v Preston relied on Olliet and said at 366:

"In the case of Olliet v. Bessey decided about 200 years ago, it was so held, and from that day to this no action can be found in the books to have been maintained against a gaoler where he acted within the terms of the warrant. That is sufficient to determine this case. Whether the plaintiff had any and, if so, what remedy, is a matter we need not inquire into: in any case this action will not lie. The appeal must, therefore, be dismissed." (citations omitted)

Lindley LJ at 366 referred to the fact that the person who issued the warrant had jurisdiction to do so in saying:

"All that one has to do is to read the warrant. What is a governor of a gaol who receives such a warrant to do except to obey it? It is perfectly valid and correct, and is authorized by the Act of Parliament, and issued by persons who have jurisdiction to issue it. It appears to me that the governor obeying that warrant has simply done his duty, and the warrant protects him and is an answer to the action."

In Demer v Cook Lord Alverstone CJ in the King's Bench Division found a gaoler liable for acting under an invalid warrant, but not the issuing court officer whose acts were only ministerial following the orders of the judicial officer.

The existence of any such common law principle and its boundaries need not be finally decided upon to resolve this case. A number of matters are less than clear, including the place or influence of the 1750 Act as a suppressed premise, the influence of courts protecting their own processes and the extent to which this general rule applies to inferior courts acting without jurisdiction, and the meaning of jurisdiction in this context. For the purposes of the resolution of this appeal, I propose to proceed upon the assumption that the common law provides that, as a general rule, an officer (such as a sheriff or gaoler) obeying a judicial order of a competent court and executing it is protected, even if the order be at that time invalid. Such a rule, however, has never been held to be applicable, or expressed in such terms as require it to be held applicable, to an order whose invalidity is of the character, and for the reasons, found by the majority in Kable. The order here, according to the Court in Kable, is not a judicial order of a superior court of record. The order is not a judicial order at all, and it was made after a process which was the antithesis of judicial proceedings.

There is a statutory protection to the gaoler here: the Prisons Act, s 46. It was not argued that this was not applicable. No occasion arises to determine its applicability, as the gaoler was not sued. I will proceed on the assumption that it applies. The determination that the protection does not exist at common law, but does exist in a statutory provision is of the first importance to the liability of the State here. If the gaoler were protected by a principle of common law because he followed the instruction contained in an order of the Supreme Court, there would be no vicarious liability of the State. This follows from the terms of the Law Reform (Vicarious Liability) Act 1983 (NSW) (the "Vicarious Liability Act"), ss 8(1) and 10 and the true nature of vicarious liability.

The Vicarious Liability Act, ss 8 and 10 provide as follows:

"8(1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function:

(a) is in the course of the person's service with the Crown or is an incident of the person's service (whether or not it was a term of the person's appointment to the service of the Crown that the person perform the function), or

(b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown.

...

10(1) In this section:

person includes the Crown.

statutory exemption means a provision made by or under an Act which excludes or limits the liability of a person.

(2) For the purposes of determining whether or not a person is vicariously liable in respect of a tort committed by another person, any statutory exemption conferred on that other person is to be disregarded.

(3) Except as provided by this section, nothing in this Act affects a statutory exemption conferred on a person."

A question of statutory construction arises as to the phrase "in respect of the tort committed by a person" in s 8(1). On one view of the theory of vicarious liability, the employer is liable "not because the [employee] is liable, but because of what the [employee] has done": Darling Island Stevedoring and Lighterage Co v Long [1957] HCA 26; 97 CLR 36 at 61 (per Kitto J with whom Taylor J agreed at 66; emphasis added). Such a foundation for giving content to the phrase in s 8(1) might lead to the conclusion that the State is vicariously liable for the acts done, being imprisoning Mr Kable under colour of an order which was of an executive character and without statutory foundation or effect, even though the employee gaoler had a defence at common law of acting in obedience to an order by a judicial officer, apparently valid. This would bring into conformity the operation of ss 8 and 10 of the Vicarious Liability Act insofar as the latter excluded the effect or operation of statutory defences and the former by its own terms excluded the effect or operation of common law defences particular to the employee.

The views of Kitto J (and Taylor J) have not prevailed. In Darling Island v Long, Fullagar J said at 57:

"The rule is, in my opinion, rightly stated, as it always is, in terms of liability and not in terms of duty. The liability is a true vicarious liability: that is to say, the master is liable not for a breach of a duty resting on him and broken by him but for a breach of duty resting on another and broken by another."

Subject to the proper place of Broom v Morgan [1953] 1 QB 597, as to which see Windeyer J in Parker v Commonwealth [1965] HCA 12; 112 CLR 295 at 300-301, the views of Fullagar J would appear to have prevailed: Cowell v Corrective Services Commission of NSW (1988) 13 NSWLR 714 at 731-32 (Clarke JA with whom Priestley JA agreed); Commonwealth v Connell (1986) 5 NSWLR 218 at 223 (Glass JA); De Bruyn v South Australia (1990) 54 SASR 231 at 235 (King CJ); and semble Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 at [34] and Parker v Commonwealth at 301; and cf New South Wales v Ibbett [2006] HCA 57; 229 CLR 638 at [6] and [36].

If the "liability" theory (as opposed to "conduct" theory) is accepted, as on the balance of authority it should be, there remains the need to deal with statutory exemptions or immunity from liability of torts otherwise committed. In the absence of a provision such as s 10, the existence of a particular statutory exemption or immunity in the employee, if it relieved the employee of liability, would on this hypothesis also relieve the Crown of vicarious liability: see Bell v Western Australia [2004] WASCA 205; 28 WAR 555. A legislative choice was made not so to relieve the State in these circumstances: s 10.

This construction of s 8 as requiring the liability of the Crown employee (subject to the operation of a statutory exemption) before the State can be found vicariously liable accords with the interpretation of the Crown Proceedings Act 1972 (SA) in De Bruyn by King CJ at 235.

Thus, if the gaoler is not liable because of a principle of the common law, the State is not liable vicariously. On the other hand, if the gaoler requires the statutory protection of a provision of a statute such as s 46 of the Prisons Act, the operation of the Vicarious Liability Act, s 10, will mean that the State is vicariously liable.

Here, for the reasons already given, the order was not judicial in character. The order had no force or effect because, as an executive act, it took its force only from the statute which is and was always unconstitutional and of no effect. On the assumption, and to the extent, of a principle at common law as set out above, it does not extend to a non-judicial order not arising from judicial process. That said, at the time the order was delivered to the gaoler the unconstitutionality was not patent, since the order was unquestionably made by the Supreme Court, and apparently regularly, the constitutionality of the Act having been decided by a Supreme Court judge, later upheld in the Court of Appeal, in the undoubted exercise of judicial power under s 76(i) of the Constitution and s 39(2) of the Judiciary Act 1903 (Cth). Those considerations go, however, to a decision to extend the assumed common law principle to a non-judicial order issued after non-judicial process.

Any protected entitlement to act on and obey the order, if it exists at common law, is not compelled by the physical form of the order: Love. As an order arising from the purported exercise of invalid executive power antithetical to the judicial process and undermining of the Court's institutional place in the administration of justice under the Constitution, subject to one matter, there appears no reason, sourced in the constitutional considerations that led to invalidity, for extending protection at common law to a gaoler acting on the order in good faith, in circumstances where statutory protection exists. That one matter is an underlying policy consideration. The policy would rest on stability and confidence in the judicial system and in the orders issued by courts. It might be thought that, even in the circumstances attending the decision in Kable and the "extraordinary" legislation, the principle (in so far as it exists) should be extended to orders that were not judicial acts and were not the product of judicial process but of process that was antithetical to judicial process and judicial power, in order that confidence in orders issued by the Supreme Court not be undermined.

Such extension of any such common law principle concerning protection to those who act in compliance with an order made by an apparently competent court must be driven by an evaluative choice or policy.

A refusal to extend the assumed common law principle may be seen as a vindication of a constitutional boundary or guaranteed right. Here, the vice of the CP Act was described by the majority of the High Court in uncompromising terms. The Act threatened basal concepts of governmental and constitutional organisation, in particular, the confidence in the judicial branch of government and the protection of the public under the rule of law. To put the matter thus reveals the vice of the statute in co-opting the Court for purposes inimical to its structure and integrity and to its constitutional function. To adapt the words of Kirby J in Residual Assco at 655 [64], citing C L Pannam, "Unconstitutional Statutes and De Facto Officers" (1966) 2 Fed L Rev 37 at 61-62:

"'[T]here may be situations in which public inconvenience and the frustration of legitimate reliance' on an apparent but unconstitutional law 'must give way to the retroactive invalidation of official acts in order to vindicate a constitutional boundary, or to guarantee a constitutional right'."

The relevant constitutional boundary or guarantee of a constitutional right here is that which was enunciated in Kable. Its importance had both public and private elements. It denied the orders of the Court their character as judicial acts and the character of their making as judicial process, since it was a process antithetical to the judicial process. This was in furtherance of the protection of the fundamental institutional character of the Supreme Court and of the administration of justice. It was also in furtherance of the protection of the fundamental common law right of Mr Kable not to be incarcerated (without an adjudication of criminal guilt, or otherwise than according to law) by the manifestation of the will of the Executive through the impermissible attempted use of the instrument of the Supreme Court.

In these circumstances, it might be thought appropriate to fashion the common law in such a way that accorded with the constitutional principles, not in a way that inverted them. A conclusion that the orders for detention here (characterised as non-judicial or executive in character and made after a process antithetical to the judicial process and issued without lawful statutory authority) provide a common law basis for protection (and thus to have a form of validity) must rest upon the judicial character of the institution making them. Yet this is the very institution constitutionally undermined by the invalid provisions for the making of the orders. Such an approach may be described as counter intuitive, and as inverting the operative constitutional principles. On the other hand, not to extend the assumed common law principle to provide protection to third parties who obey even these kinds of orders may be seen to undermine the authority of the Court, by casting doubt upon whether those to whom orders are directed should follow them. This might be seen to compound the harm done by the passing of the Act itself and acting under it. If s 46 applies in these circumstances, the gaoler has, however, adequate and effective statutory protection.

I can see the reasons, conformable with maintaining confidence in orders of the courts, for extending the operation of the assumed common law rule even to circumstances that involve extraordinary legislation such as the CP Act and the vices therein contained, and for extending the common law protection of persons such as the gaoler who act on the invalid non-judicial orders made under such legislation, as long as, in form, they are issued in the name of a court. The countervailing considerations are, however, far more powerful, in my view. This was not a judicial order. It was not made after judicial process. To extend the assumed common law principle to protect those who deprive the liberty of persons under such orders would be to fashion the common law to give efficacy to the unconstitutional attempted exercise of will of the executive, to deprive a subject of his liberty, in circumstances where the officer, who acted bona fide, is already protected by statute. I would not be willing to extend the assumed common law principle in this way. Further, if I am correct in my view that the assumed common law principle does not extend so far as to cover the present circumstances, it might be thought that it is for the High Court to take that step, given the deep involvement of constitutional principle and the operation of the integrated legal system in the Commonwealth. It is therefore unnecessary to consider finally the existence and reach otherwise of any such common law principle.

It is unnecessary in these circumstances to consider whether the State could be liable for false imprisonment otherwise than vicariously through the liability of the gaoler (ignoring, as one must, the Prisons Act, s 46, for the position of the State). The argument did not proceed along these lines. Also, the question may involve Constitutional conceptions that may not have been covered by the notices issued under the Judiciary Act 1903 (Cth), s 78B.

Section 28 of the CP Act sought to protect the State against the consequences of steps taken under the Act. In Kable, Toohey J at 99 found "the Act" invalid. Gaudron J at 108 found s 5(1) invalid, as well as "the remaining provisions of the Act which serve no purpose other than to carry s 5(1) into effect". McHugh J at 124 found "the Act ... invalid". Gummow J at 144 made specific reference to s 28 and said it fell along with all other relevant provisions.

For these reasons, the claim in false imprisonment should not have been dismissed.

BASTEN JA: From February to August 1995 the appellant, Gregory Wayne Kable, was held in a New South Wales prison. The supposed justification for his detention was an order made by a judge of the Supreme Court on an application by the Director of Public Prosecutions under the Community Protection Act 1994 (NSW). That Act permitted a detention order to be made in respect of Mr Kable (and no one else) if a judge were satisfied that he was likely to commit a serious act of violence and it was appropriate to hold him in custody.

(1) Issues

Mr Kable challenged the constitutional validity of the legislation. He was successful in the High Court: Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51. Judgment was delivered on 9 September 1996, more than a year after the expiration of the first detention order made by Levine J, the Supreme Court (Grove J) having refused to make a further order. The present proceedings involve claims for damages arising from the conduct of the State and its officers in bringing proceedings against him and for detaining him for a period of six months, solely on the basis of the detention order made under the invalid Act.

The present proceedings were commenced promptly in 1996. They have, however, had a somewhat fraught procedural history. A trial commenced on 9 November 2009 before Hoeben J with the identification of six questions which, it was agreed, his Honour should determine before taking any other steps in the trial. The answers to those questions led to a judgment for the defendant: Kable v State of New South Wales [2010] NSWSC 811; 203 A Crim R 66 (30 July 2010).

By the time of the hearing, the claim had been crystallized by reference to three causes of action, namely:

(i) abuse of process;

(ii) malicious prosecution, and

(iii) false imprisonment.

The primary judge held that there was no case to go to a jury in respect of any of the three causes of action. In the result, no jury was empanelled and judgment was given in favour of the State of New South Wales. On 1 November 2010 Mr Kable appealed against the orders of Hoeben J, as of right, although out of time.

For reasons given below, the claims in respect of abuse of process and malicious prosecution were properly struck out. On the other hand, the claim in respect of false imprisonment was maintainable and accordingly the orders made by the primary judge must be set aside.

Procedural difficulties continued to haunt the proceedings in this Court. The primary judge rejected the claim of false imprisonment because, at the time of the appellant's detention, there was in place an order of a superior court which, according to its terms, warranted and required his detention. In the course of the appellant's argument, on the first day of the hearing of the appeal, it became apparent that the appellant sought to overcome that obstacle by relying upon the reason for the invalidity of the legislation which supported the order, namely that the Community Protection Act sought to confer on the Supreme Court a jurisdiction which was incompatible with the exercise of the judicial power of the Commonwealth and was thus inconsistent with the terms of Chapter III of the Constitution. Whether that circumstance meant that, contrary to general law principles, the purported order could not in its terms provide a justification for the detention of the appellant, or that the setting aside of the order removed, retrospectively, any justification which otherwise existed, was a matter arising under, or involving the interpretation of, the Constitution. Alternatively, it could be seen to raise an issue as to the effect of the orders made by the High Court, setting aside the detention order and dismissing the Director's application, which in turn involved the effect of relief arising under the Constitution. Accordingly, although the step had not been taken at trial or prior to the hearing on appeal, the Court required that notices addressing these contentions be issued under s 78B of the Judiciary Act 1903 (Cth) to the various Attorneys General. The matter was adjourned to permit that step to be taken and to allow a reasonable time for the Attorneys to respond.

Re Macks accepted that the effect of constitutional limitations on power could only be determined in the exercise of federal judicial power. Thus, the High Court by operation of ss 71 and 76(i) of the Constitution itself, and other courts by legislation pursuant to s 77 of the Constitution, could undertake that exercise. The proposition that an erroneous determination of jurisdiction may nevertheless be effective until set aside flowed in part from s 75(v) of the Constitution which conferred power on the High Court to correct errors on the part of "an officer of the Commonwealth", language which encompasses judges of federal courts: at [52] (Gaudron J) and [256] (Kirby J). That factor could not operate with respect to State courts, exercising jurisdiction pursuant to s 39(2) of the Judiciary Act, but other relevant constitutional provisions supporting the same conclusion were identified in Residual Assco Group Ltd v Spalvins [2000] HCA 33; 202 CLR 629. However, that analysis does not assist the State in the present case: rather, it distinguishes Re Macks as a case dealing with orders made in the exercise of judicial power, albeit based on an erroneous assumption as to the Court's jurisdiction. The finding of the High Court in Kable that the Supreme Court was not exercising judicial power in making the impugned order requires a different level of analysis. However, it remained the case that, unless s 39(2) were to be read down so as to remove its operation, the Supreme Court had jurisdiction to consider the validity of the Community Protection Act and hence its own jurisdiction. Thus, the analysis proceeded, its order, based on its view that it had jurisdiction, had some effect until set aside. In other words, the order made in the exercise of State jurisdiction was not an exercise of judicial power because the State legislature was unable to confer such power on the Court, but it became a judicial order because the constitutional challenge was raised. (No such issue arose in Re Macks, the impugned orders being those of the Federal Court.)

One possible answer to such an analysis is that where a judicial function and an incompatible non-judicial function are purportedly exercised in one proceeding, the incompatible non-judicial function is not thereby incorporated into a single exercise of federal jurisdiction. As noted by Dawson J in Kable, "it may lead to a very artificial result in a case such as this, namely, that the Supreme Court of New South Wales was exercising federal jurisdiction in ordering the preventive detention of the appellant under a New South Wales Act": at 87. Dawson J referred to the possibility identified by Barwick CJ in Felton v Mulligan [1971] HCA 39; 124 CLR 367 at 373 that the whole of the "jurisdiction which is exercised by the Supreme Court throughout the case will be federal ... unless perhaps there is some completely disparate claim constituting in substance a separate proceeding".

A second answer is that it follows from the reasoning in Kable that the purported exercise of the incompatible jurisdiction did not cause the jurisdiction purportedly conferred by the State law to be recharacterised as judicial. Once federal jurisdiction is invoked by reliance on a defence arising under the Constitution, and the whole of the case becomes an exercise of federal jurisdiction, no State law operates except to the extent it is applied by federal law, namely ss 79 or 80 of the Judiciary Act. However, the Judiciary Act will only pick up and apply a valid State law; because the State law is, ex hypothesi, invalid, it will not be picked up and applied. Accordingly, an order under the invalid State law, which could not have been made in the exercise of federal jurisdiction, did not constitute a judicial order.

Any contrary conclusion would contradict the findings of the High Court in Kable. The majority held that the function conferred on the Supreme Court was not compatible with the exercise of judicial power and involved the Court in an exercise of a non-judicial function: 189 CLR at 98 (Toohey J), 106-107 and 108 (Gaudron J), 122 (McHugh J) and 132 and 134 (Gummow J). Gummow J further accepted the appellant's submission that "his detention was not ... supported by a valid law of the State": at 144. The orders of the High Court set aside the detention order made by Levine J and, in lieu thereof, ordered that the application of the Director of Public Prosecutions, seeking the detention order, be dismissed with costs. Accordingly, it is not open to this Court to conclude that the detention order was otherwise than an invalid non-judicial order.

(g) effect of non-judicial detention order

The appellant contended that the proceedings in the Supreme Court and the resultant order were so far from being an exercise of judicial power as to be entirely incompatible with it. An order made in exercise of a non-judicial function was not a judicial act, despite the status of the repository of the power and the language and form of the order. Although the order may have had the trappings of a judicial order, it was not an order of the kind which, if made by a judge of a superior court in the exercise of judicial power, is valid until set aside. Accordingly, the order did not enjoy the status of a judicial order and was void ab initio. It followed, the appellant submitted, that, absent an effective statutory protective provision (s 28 of the Community Protection Act which might have provided that immunity having been held invalid with the rest of the Act) the order provided no defence to the claim of unlawful imprisonment.

The appellant sought support in the reasoning of the High Court in Love v Attorney-General (NSW) [1990] HCA 4; 169 CLR 307. That case involved challenges to the validity of certain warrants issued by judges of the Supreme Court under the Listening Devices Act 1984 (NSW). Conversations were recorded and certain persons, including Love and Peters, were charged with offences relating to the supply of heroin. Love and Peters brought challenges to the validity of the warrants, as a step to having the evidence obtained by use of the warrants rejected in the criminal proceedings. In the Court of Appeal, it was assumed or accepted that the warrants were judicial orders: Peters v Attorney General (NSW) (1988) 16 NSWLR 24. The Court of Appeal held that the Listening Devices Act was invalid, pursuant to s 109 of the Constitution, to the extent that it purported to authorise the issue of a warrant for a member of the Australian Federal Police to use a listening device for the purposes of a narcotic inquiry under the Customs Act 1901 (Cth): at 36C (McHugh JA, Kirby P agreeing). McHugh JA rejected the proposition that "as these warrants were made by judicial orders they are valid and effective until the orders are set aside even if the Listening Devices Act is pro tanto invalid": at 38B and 41B. The Court declared that the warrants were of no force and effect, to the extent of the inconsistency.

On appeal to the High Court, the applicants argued that if the warrants were judicial orders, they could not be declared void ab initio, and would not be amenable to prerogative relief: 169 CLR at 309. The Court held (at 318):

"It is first necessary, in order to consider the operation of the warrant, to determine whether the act of issuing it is judicial or administrative in nature. If the issuing of the warrant is an administrative act, then the ambit of the warrant must be determined in the light of the scope of the power conferred upon the court by the statute. ... On the other hand, if the act of issuing a warrant is judicial in nature, then the warrant takes on the attributes of a judicial order."

Their Honours continued (at 319):

"In one sense - a loose sense - the warrant is a judicial act; it is an instrument issued by a judge of the Supreme Court. But the fact that it is an instrument issued by a judge of the Supreme Court does not stamp it with the character of a judicial order unless the warrant issues as a result of a determination made by the judge in his or her judicial capacity."

Their Honours concluded that the warrants were administrative acts and therefore not judicial orders, continuing (at 322-323):

"Once it is accepted that the warrant is not a judicial order, it becomes an instrument made pursuant to a circumscribed statutory authority."

Although reaching the result by a different route, the High Court did not set aside the orders made by the Court of Appeal. Rather, they read down the authority granted by the warrant to conform to the limitations identified in the Listening Devices Act, which, when itself read down, was not invalid. Thus, an order made otherwise than in the exercise of judicial power cannot depend for its authority on the force of a judicial order and derives whatever authority it has solely from the relevant legislation. If the legislation is invalid, the order is without legal effect, in accordance with the principles identified in Antill Ranger and Love.

The appellant's submission should be accepted. The distinction drawn in Love is consistent with the proposition that only orders made by a judge of a superior court in the exercise of judicial power are valid until set aside and thus provide immunity to those executing them in good faith.

The result of that conclusion may be that, absent statutory protection, public officers are exposed to potential liability in damages for obeying what they reasonably believe to be a valid court order. However, the conclusion means no more than that the order was of the kind which could be made by the Supreme Court under the Listening Devices Act, by a District Court judge or by a magistrate: to obtain protection, as has long been recognised, statutory protection is required. Such a provision was contained in s 28 of the Community Protection Act, but, as was expressly held by the High Court, that provision fell with the rest of the Act. Although that provision cannot protect the State, there remains a question as to whether s 46 of the Prisons Act, which conferred immunity on the gaoler, protected the State, despite the terms of s 8 of the Vicarious Liability Act.

(h) statutory protection

The potential difficulties faced by the police seeking to execute a void warrant have long been recognised, but have found their solution, not in the general law, but in statute. Thus, a constable executing an invalid search warrant has been held to have no protection at common law in this State, but to enjoy protection originally available provided in England by the Constables Protection Act 1750 (Imp) (24 Geo II, c 44), s 6: Feather v Rogers (1909) 9 SR (NSW) 192. In fact, as explained by Kirby P in Carroll v Mijovich (1991) 25 NSWLR 441 at 447A-C, there has been specific statutory protection for police under New South Wales law since the Police Regulation Act 1899: see also comment as to absence of general law protection in the judgment of Handley JA, at 457F.

The Constables Protection Act 1750 provided protection to "any constable, headborough or other officer" in respect of anything done in obedience to any warrant. The phrase "other officer" was held to extend to a gaoler: see M Aronson and H Whitmore, Public Torts and Contracts (Law Book Co, 1982) p 148, referring to Butt v Newman (1819) Gow 97 and Gerard v Hope [1965] Tas SR 15 at 54 and 63. In Butt v Newman, Dallas CJ, sitting in the Court of Common Pleas, noted that, as a matter of statutory construction, "[i]t would, indeed, be extremely strange if the gaoler who receives a person into his custody under the warrant of a magistrate be not protected, when at the same time the constable who conveys the person to the gaol is entitled to protection": at 98. Much of the history was set out by Crisp J in Gerard v Hope.

The Constables Protection Act has not operated in New South Wales since the Imperial Acts Application Act 1969 (NSW); nevertheless, the existence of the statutory protection, dating from 1750, may well explain remarks in cases, made without supporting authority, to the effect that a court officer or other person executing an apparently valid order (though not of a superior court) is protected from liability: eg, Sirros v Moore [1975] QB 118 at 137, Lord Denning asserting that no action would lie against police officers acting in response to a judge's direction, though the direction was invalid where they did not know of the invalidity; see also Aronson and Whitmore, at 151-152. Further, gaolers in New South Wales have enjoyed statutory protection under State legislation preceding the repeal of the Constables Protection Act: Prisons Act, s 46.

In the light of this statutory protection, it is implausible that any common law principle now operates in respect of orders purportedly made under statutory authority (and no other authority). Such a conclusion would indicate that Love was determined on a false premise. That should not be accepted. Alternatively, whatever residual common law protection may be available, it has no application in respect of novel forms of statutory order, such as those available under the Listening Devices Act. In the absence of any clear submission as to how such protection could arise in respect of a constitutionally invalid statutory detention order, such a possibility must be put to one side.

Whatever statutory protection the gaoler may enjoy will not enure to the benefit of the State: Vicarious Liability Act, s 10. Thus, at least since the amendment of s 10, the reference in s 8 to "the tort committed by a person in the service of the Crown" must be read as referring to that which would have been a tort, absent statutory protection.

In these circumstances it is unnecessary to decide whether s 46 of the Prisons Act provided statutory protection to the gaoler. No action was brought against the gaoler and any statutory protection of the gaoler would not relieve the State of the liability it has otherwise accepted under the Vicarious Liability Act.

A further possibility, not expressly addressed in argument, was that s 46 extended protection to the State, which protection was not overridden by the Vicarious Liability Act. Section 46 granted immunity to "any person"; "person" is defined to include a body politic: Interpretation Act 1987 (NSW), s 21(1). However, s 46 operated only with respect to things "done" or "commanded to be done" by that person. The State did not "do" anything directly, as the primary judge correctly concluded. Nor did it "command" anything to be done. Furthermore, the act of detaining the appellant was not done "for the purpose of carrying out the provisions of" the Prisons Act, but for the purpose of carrying out the purported provisions of the Community Protection Act: see Cowell at 723C-E (McHugh JA). Finally, it seems unlikely that the appellant was a "prisoner" within the definition in s 4(1) of the Prisons Act, except by operation of s 22 of the Community Protection Act, which was invalid. Given the absence of reliance by the State on protection under s 46, these questions need not be resolved.

So far as the State is concerned, no question could have arisen as to its vicarious liability for the unlawful imprisonment by a gaoler so long as it enjoyed "Crown immunity". That was effectively abolished in New South Wales by the Claims against the Colonial Government Act 1876, s 3, as construed in Farnell v Bowman (1887) 12 App Cas 643 (PC). Further procedural reforms were made in 1897. That legislation was replaced in due course by the Claims against the Government and Crown Suits Act 1912 (NSW) and, more recently, the Crown Proceedings Act 1988 (NSW), which was in force when these proceedings were commenced. However, the State remained immune from vicarious liability for the acts of public servants in the exercise of independent functions. That immunity was removed by the Vicarious Liability Act in 1983. As explained by the Minister (Mr Frank Walker) in his Second Reading Speech, New South Wales Parliamentary Debates, 3rd series, Vol 174, p 4764-4765 (17 March 1983):

"In respect of the State, however, there are persons in the service of the State who do not have a master and servant relationship with the Government as employer. Examples of such persons are statutory office holders performing functions conferred by their particular statutes, and members of the police force. At present, there can be no vicarious liability on the State in respect of torts committed by these persons as there is no relationship of master and servant. In addition, some of the functions performed by these persons, for example the police officer's powers of arrest, are functions conferred or imposed by the common law or by statute.

The Government has decided that the State should accept liability for the wrongful acts of all persons in the service of the State in addition to those employees who fall within the strict master and servant relationship. ... This liability will apply regardless of whether the function being performed by the person in the service of the State was conferred or imposed by law."

The underlying purpose of s 8 of the Vicarious Liability Act was to remove the State's immunity for the acts of officers exercising independent functions ("[n]otwithstanding any law to the contrary"), the immunity being based on the general law principle that liability only arose where the officer acted pursuant to the command of the sovereign, and not pursuant to a statutory duty: see Tobin v The Queen (1864) 16 CB(NS) 310; 143 ER 1148, 1162-1163 (Erle CJ), applied with respect to a wrongful arrest by a police officer in Enever v The King and rejected as inappropriate in policy terms by the NSW Law Reform Commission, Report on Proceedings by and against the Crown (1975) at [13.4]-[13.5] and [13.27]. The State is therefore liable for the acts of its officers in imprisoning the appellant without lawful authority.

(6) Conclusions

The primary judge was correct to strike out the claims based on malicious prosecution and collateral abuse of process. He was wrong to strike out the claim based on unlawful imprisonment. Accordingly, the appeal is upheld in part. The matter must be returned to the Common Law Division for determination of the outstanding claim. However, it does not appear that any defence remains available to the State and the appellant is entitled to a judgment on the issue of liability for false imprisonment, with damages to be assessed.

The Court should make the following orders:

(1) Allow the appeal in part.

(2) Set aside the orders in the Common Law Division dismissing the proceedings against the first defendant (the State) and ordering the plaintiff to pay the defendant's costs of the proceedings.

(3) In lieu of the judgment and orders below:

(a) give judgment for the plaintiff on his claim against the first defendant (the State) for unlawful imprisonment;

(b) order the first defendant to pay the plaintiff's costs of the proceedings to date in the Common Law Division.

(4) Remit the matter to the Common Law Division for assessment of damages.

(5) Order that the respondent pay the appellant's costs of the appeal.

CAMPBELL JA: I agree with Basten JA concerning abuse of process and malicious prosecution, and with the orders that should be made. I agree with Allsop P concerning why the claim in false imprisonment should not have been dismissed.

MEAGHER JA: I agree with Basten JA for the reasons he gives that the primary judge was correct to strike out the claims for malicious prosecution and collateral abuse of process. For the reasons given by Allsop P, the primary judge should not have dismissed the claim for false imprisonment. As those reasons demonstrate, none of the defences relied on by the State in answer to the false imprisonment claim can succeed as a matter of law. For that reason I agree with the orders proposed by Basten JA.

McCLELLAN CJ at CL: I have had the benefit or reading in draft the judgments of the President and Basten JA. I agree with the orders proposed by Basten JA.

I agree with the reasons of Basten JA in relation to all issues except for false imprisonment and in respect of that issue I agree with the reasons of the President.

Some people may find it to be an odd result that an order made by a judge pursuant to legislation of the State Parliament could be the foundation for tortious liability. However, I am satisfied that result follows from the characterisation by the High Court in Kable of the Community Protection Act (1994) NSW and the act of the judge purportedly done in reliance on it (Allsop P provides a summary of their Honours' conclusions in [3]). The High Court's analysis leads inevitably to the conclusion that the decision to detain the appellant had no legal foundation making the State liable in tort for the appellant's false imprisonment.

**********

Decision last updated: 08 August 2012

Medium Neutral Citation:	Kable v State of New South Wales [2012] NSWCA 243
Hearing dates:	27, 28 October, 29 November 2011
Decision date:	08 August 2012
Before:	Allsop P at [1]; Basten JA at [67]; Campbell JA at [173]; Meagher JA at [174]; McClellan CJ at CL at [175]
Decision:	(1) Allow the appeal in part. (2) Set aside the orders in the Common Law Division dismissing the proceedings against the first defendant (the State) and ordering the plaintiff to pay the defendant's costs of the proceedings. (3) In lieu of the judgment and orders below: (a) give judgment for the plaintiff on his claim against the first defendant (the State) for unlawful imprisonment; (b) order the first defendant to pay the plaintiff's costs of the proceedings to date in the Common Law Division. (4) Remit the matter to the Common Law Division for assessment of damages. (5) Order that the respondent pay the appellant's costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	ADMINISTRATIVE LAW - judicial power - executing invalid order of superior court - whether order of superior court incompatible with exercise of judicial power is valid until set aside - whether non-judicial order derives whatever authority it has solely from the relevant legislation - effects of orders in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 CONSTITUTIONAL LAW - judicial power - Supreme Court order under statutory power incompatible with judicial power invalid - order made in proceedings involving exercise of federal judicial power - exercise of federal judicial power simultaneous with function incompatible with judicial power - whether invalid State law applied by federal law - Judiciary Act 1903 (Cth), ss 39(2), 79 and 80 TORT - defences - protection from liability in tort for officer enforcing non-judicial order of judge of superior court in good faith - whether protection exists at common law - whether any protection extends to orders incompatible with exercise of judicial power TORT - false imprisonment - plaintiff detained pursuant to order of Supreme Court on application of Director of Public Prosecutions pursuant to purported State legislation - legislation incompatible with judicial power and invalid - whether deprivation of liberty carried out by a person for whose conduct the State was liable - whether deprivation of liberty justified by law TORT - malicious prosecution and collateral abuse of process - plaintiff detained pursuant to order of Supreme Court on application of Director of Public Prosecutions pursuant to invalid legislation - whether malice established TORT - vicarious liability - vicarious liability of the State for conduct of persons in service of the Crown - whether State vicariously liable for conduct which was tortious absent statutory protection - Law Reform (Vicarious Liability) Act 1983 (NSW), ss 8 and 10
Legislation Cited:	Bill of Rights 1688 (Imp), art 9 Claims Against the Colonial Government Act 1876, s 3 Claims against Government Act 1857 (NSW) Claims Against the Government and Crown Suits Act 1912 (NSW) Community Protection Act 1994 (NSW), ss 3, 4, 5, 14, 15, 19, 22, 23, 28, 31 Constables Protection Act 1750 (Imp) (24 Geo II, c 44), s 6 Constitution, ss 51, 71, 75, 76, 77, 109; Ch III Crimes Act 1900 (NSW), s 4 Crimes Legislation Amendment (Sentencing) Act 1999 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW), s 62 Criminal Procedure Act 1986 (NSW), ss 241-244 Crown Proceedings Act 1988 (NSW) Crown Proceedings Act 1972 (SA) Crown Proceedings Act 1947 (UK) Customs Act 1901 (Cth) Director of Public Prosecutions Act 1986 (NSW) Evidence Act 1995 (NSW), s 91 Imperial Acts Application Act 1969 (NSW) Interpretation Act 1987 (NSW), s 21 Judiciary Act 1903 (Cth), ss 38, 39, 78B, 79, 80 Law Reform (Vicarious Liability) Act 1983 (NSW), ss 5, 7, 8, 10, 46 Listening Devices Act 1984 (NSW) Police Regulation Act 1899 Prisons Act 1952 (NSW), ss 3, 6, 39, 40, 40A, 46; Pt 8; Sch 2 Prisons (Amendment) Act 1988 (NSW)
Cases Cited:	A v State of New South Wales [2007] HCA 10; 230 CLR 500 Ah Yick v Lehmert [1905] HCA 22; 2 CLR 593 Andrews v Marris (1841) 1 QB 3; 113 ER 1030 Antill Ranger & Co Pty Ltd v Commissioner for Motor Transport [1955] HCA 25; 93 CLR 83 Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 Bell v Western Australia [2004] WASCA 205; 28 WAR 555 Broom v Morgan [1953] 1 QB 597 Butt v Newman (1819) Gow 97 Cameron v Cole [1944] HCA 5; 68 CLR 571 Carratt v Morley (1841) 1 QB 18; 113 ER 1036 Carroll v Mijovich (1991) 25 NSWLR 441 Chicot County Drainage District v Baxter State Bank 308 US 371 (1940) Coleman v Power [2004] HCA 39; 220 CLR 1 Commissioner for Motor Transport v Antill Ranger & Co Pty Ltd (1956) 94 CLR 177 (PC) Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; 53 CLR 220 Commonwealth v Connell (1986) 5 NSWLR 218 Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714 Darling Island Stevedoring and Lighterage Co Ltd v Long [1957] HCA 26; 97 CLR 37 Deacon v Grimshaw (1955) 93 CLR 104 De Bruyn v South Australia (1990) 54 SASR 231 Demer v Cook (1903) 88 LT 629 DMW v CGW [1982] HCA 73; 151 CLR 491 Dowling v Colonial Mutual Life Assurance Society Ltd [1915] HCA 56; 20 CLR 509 Dr Drury's Case (1610) 8 Co Rep 141b; 77 ER 688 Emanuele v Hedley (1998) 179 FCR 290 Enever v The King [1906] HCA 3; 3 CLR 969 Farnell v Bowman (1887) 12 App Cas 643 (PC) Feather v Rogers (1909) 9 SR (NSW) 192 Felton v Mulligan [1971] HCA 39; 124 CLR 367 Gerard v Hope [1965] Tas SR 15 Gregory v Portsmouth City Council [2000] 1 AC 419 Grollo v Palmer [1995] HCA 26; 184 CLR 348 HA Bachrach Pty Ltd v State of Queensland [1998] HCA 54; 195 CLR 547 Hadkinson v Hadkinson [1952] P 285 Haskins v Commonwealth [2011] HCA 28; 244 CLR 22 Henderson v Preston (1888) 21 QBD 362 Higginson v Martin (1677) 2 Mod 195; 86 ER 1021 Hill v Bateman (1726) 2 Strange 710; 93 ER 800 Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; 8 CLR 330 Isaacs v Robertson [1985] AC 97 James v The Commonwealth [1939] HCA 9; 62 CLR 339 Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 Kable v State of New South Wales [2010] NSWSC 811; 203 A Crim R 66 Kable v Director of Public Prosecutions (1995) 36 NSWLR 374 Lane v Morrison [2009] HCA 29; 239 CLR 230 Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520 Leerdam v Noori [2009] NSWCA 90; 255 ALR 553 London Corporation v Cox (1867) LR 2 HL 239 Love v Attorney-General (NSW) [1990] HCA 4; 169 CLR 307 MacIntosh v Lobel (1993) 30 NSWLR 441 Matthews v Australian Securities and Investments Commission [2000] FCA 288; 97 FCR 396 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 Moravia v Sloper (1737) Willes 30; 125 ER 1039 Morrell v Martin (1841) SC 4 Scott NR 300; 3 Man & G 581; 133 ER 1273 Morse v James (1738) Willes 122; 125 ER 1089 New South Wales v Ibbett [2006] HCA 57; 229 CLR 638 O'Chee v Rowley (1997) 142 FLR 1 Olliet v Bessey (1679) Jones T 214; 84 ER 1223 Ousley v The Queen [1997] HCA 49; 192 CLR 69 Painter v Liverpool Oil Gas Light Co (1836) 3 Ad & E 433;111 ER 478 Parker v Commonwealth [1965] HCA 12; 112 CLR 295 Peacock v Bell and Kendal (1667) 1 Wms Saund 73; 85 ER 84 Pelechowski v Registrar, Court of Appeal [1999] HCA 19; 198 CLR 435 Peters v Attorney General (NSW) (1988) 16 NSWLR 24 Posner v Collector for Inter-State Destitute Persons (Victoria) [1946] HCA 50; 74 CLR 461 Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330 R v Governor of Brockhill Prison; Ex parte Evans (No 2) [2001] 2 AC 19 R v Oldham Justices; Ex parte Cawley [1997] QB 1 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Ltd [1970] HCA 8; 123 CLR 361 R v Unger [1977] 2 NSWLR 990 Re Macks; Ex parte Saint [2000] HCA 62; 204 CLR 158 Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) [1995] HCA 31; 184 CLR 620 Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511 Residual Assco Group Ltd v Spalvins [2000] HCA 33; 202 CLR 629 Robertson (1997) 92 A Crim R 115 S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549; 143 FCR 217 Sirros v Moore [1975] QB 118 Street v Hearne [2007] NSWCA 113; 70 NSWLR 231 Thomas v Hudson (1847) 16 M & W 885; 153 ER 1450 Tobin v The Queen (1864) 16 CB(NS) 310; 143 ER 1148 United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; 46 CLR 73 Ward v Murphy (1937) 38 SR (NSW) 85 Williams v Spautz [1992] HCA 34; 174 CLR 509
Texts Cited:	M Aronson and H Whitmore, Public Torts and Contracts (Law Book Co, 1982) pp 148, 151-152 M Aronson, "Misfeasance in Public Office: A Very Peculiar Tort", (2011) 35 Melb UL Rev 1 at 9-15 R P Balkin and J L R Davis, Law of Torts (4th ed, 2009) [25.23] Burn's Justice of the Peace, 30th ed (1869), vol 1 at 1021 S Kneebone, Tort Liability of Public Authorities (LBC, 1998) NSW Law Reform Commission, Report on Proceedings by and against the Crown (1975) at [13.4]-[13.5], [13.27] C L Pannam, "Tortious Liability for Acts Performed under an Unconstitutional Statute" (1965-67) 5 Melb UL Rev 113 at 116-117 C L Pannam, "Unconstitutional Statutes and De Facto Officers" (1966) 2 Fed L Rev 37 at 61-62 Sadler, "Liability for Misfeasance in a Public Office", (1992) 14 Syd L Rev 137 at 138 Second Reading Speech, New South Wales Parliamentary Debates, 3rd series, Vol 174, p 4764-4765 (17 March 1983)
Category:	Principal judgment
Parties:	Gregory Wayne Kable - Appellant State of New South Wales - Respondent
Representation:	Counsel: P W Bates/P G White - Appellant M J Leeming SC/R H Weinstein SC/ J Shepard - Respondent Solicitors: Armstrong Legal - Appellant Crown Solicitor's Office - Respondent
File Number(s):	CA 1996/31364
Decision under appeal	Jurisdiction: 9111 Citation: Kable v State of New South Wales [2010] NSWSC 811 Date of Decision: 2010-07-30 00:00:00 Before: Hoeben J File Number(s): SC 1996/21296