Kable v State of New South Wales

[2010] NSWSC 811

Reported Decision: 203 A Crim R 66

New South Wales

Supreme Court

CITATION:	Kable v State of NSW [2010] NSWSC 811
HEARING DATE(S):	09.11.2009; 10.11.09
JUDGMENT DATE :	30 July 2010
JUDGMENT OF:	Hoeben J
DECISION:	Judgment for the defendant. Plaintiff is to pay the defendant’s costs of these proceedings. Leave granted to the parties to approach the Court within 14 days should they wish to make submissions as to costs.
CATCHWORDS:	TORTS - malicious prosecution - proceedings against plaintiff under Community Protection Act 1994 - whether such proceedings a basis for claim for malicious prosecution - who was prosecutor in those proceedings - whether Executive Government of NSW could be characterised as prosecutor - whether evidence of malice - whether evidence of "institutional malice" on part of Executive Government of NSW - whether proceedings under Community Protection Act 1994 brought without reasonable and probable cause - COLLATERIAL ABUSE OF PROCESS - whether Executive Government of NSW a party to proceedings under Community Protection Act 1994 - whether evidence of improper purpose in the bringing of those proceedings - FALSE IMPRISONMENT - who is liable for the tort - whether orders of superior court a nullity if Act under which orders made declared invalid by High Court.
LEGISLATION CITED:	Community Protection Act 1994 Courts Legislation Amendment (Civil Juries) Act 2001 Crimes Act 1914 (Commonwealth) Criminal Assets Recovery Act 1990 Director of Public Prosecutions Act 1986 Mental Health Act 1990 Uniform Civil Procedure Rules 2005
CATEGORY:	Principal judgment
CASES CITED:	A v State of NSW and Anor [2007] HCA 10, (2007) 230 CLR 500 Andrew v Marris (1841) 1 QB 3 Cameron v Cole (1944) 68 CLR 571 Commonwealth Life Assurance Society Limited v Brain (1935) 53 CLR 343 Cowell v Corrective Services Commission of NSW (1988) 13 NSW LR 714 Davis v Gell (1924) 35 CLR 275 Egan v Willis (1998) HCA 71, (1998) 195 CLR 242 Emanuele v ASC (1997) 188 CLR 114 Emanuele v Hedley (Federal Court of Australia, 19 June 1998, unreported) Gibbs v Rea (1998) AC 786 Gould v Brown (1998) 193 CLR 346 at 463 Gregory v Portsmouth City Council (2000) 1 AC 419 Henderson v Preston (1888) 21 QBD 362 at 366 International Finance Trust Co Ltd v NSW Crime Commission (No 2) [2010] NSWCA 46 Johnson v Emerson (1871) LR 6 Ex 329 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 98 Kruger & Ors v The Commonwealth of Australia (1996-1997) 190 CLR 1 Leerdam & Anor v Noori & Ors [2009] NSWCA 90 Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674 R v Governor of Brockhill Prison, Ex parte Evans (No 2) (2001) 2AC 19 Re Brown; Ex parte Amann (1999) 198 CLR 511 Re Macks; Ex parte Saint (2000) 204 CLR 158 Roy v Prior (1971) AC 470 Russell v East Anglican Railway Co (1850) 3 Mac & G 104 The Beach Club Port Douglas v Page [2005] QCA 475
TEXTS CITED:	Fairall “Violent Offenders and Community Protection Victoria – The Gary David Experience” (1993) 17 Criminal Law Journal 40
PARTIES:	Gregory Wayne Kable - Plaintiff State of New South Wales - Defendant
FILE NUMBER(S):	SC 1996/31364
COUNSEL:	Mr M Neil QC/Mr P Bates/Ms P White - Plaintiff Mr M Leeming SC/Mr R Weinstein/Mr R Bhalla - Defendant
SOLICITORS:	Armstrong Legal - Plaintiff IV Knight, Crown Solicitor - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Friday, 30 July 2010

1996/31364 – Gregory Wayne KABLE v STATE OF NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR:

Nature of Proceedings
The plaintiff relies upon three causes of action against the State of New South Wales:

(i) Collateral abuse of process (Statement of Claim (SOC) paras 1 –16);
(ii) Malicious prosecution (SOC paras 17 – 20);
(iii) False imprisonment (SOC paras 21 – 23A).

2 Because the proceedings were commenced in 1996 the trial must include a jury for certain factual issues pursuant to the former s 88(b) of the Supreme Court Act 1970 (NSW) which provided, inter alia, that:

“Proceedings on a common law claim in which there are issues of fact
…
(b) On a claim in respect of … malicious prosecution, false imprisonment …
shall be tried with a jury.”

3 Although s 88 was repealed by the Courts Legislation Amendment (Civil Juries) Act 2001 (s 4 and Schedule 2, clause 4), the repeal was prospective, not retrospective. Schedule 4, cl 3 saved it and provided, inter alia, that:

“Section … 88 … as in force immediately before its amendment by the Courts Legislation Amendment (Civil Juries) Act 2001, continues to apply in relation to proceedings commenced but not finally determined before the commencement of that amendment as if the section had not been amended.”

4 Accordingly, it was agreed between the parties that the jury would determine any real issues of fact in relation to the malicious prosecution and false imprisonment claims but that factual issues in relation to abuse of process would be determined by the trial judge. It was agreed that in the malicious prosecution claim the issue of absence of reasonable and probable cause would be determined by the trial judge.

5 When the trial commenced, no jury was empanelled. It was accepted by the parties that there were a number of legal issues which needed to be decided before such empanelling took place. It was the defendant’s submission that all of the plaintiff’s claims were bad in law and that they should be dismissed without the need for a jury to be empanelled. While the plaintiff rejected that submission, he agreed that there were a number of legal issues which needed to be decided before a jury could be empanelled.

6 The defendant identified six threshold legal questions which needed to be decided. While the plaintiff accepted that these questions needed to be determined before the jury was empanelled, he was not prepared to accept that these were the only threshold legal questions.

7 The six issues identified by the defendant were as follows:

Malicious Prosecution

(i) Were the applications for orders pursuant to ss 5 and 7 of the Community Protection Act 1994 (CPA) “Proceedings of the kind to which the tort of malicious prosecution applies”?

(ii) Given the plaintiff’s concession that he does not assert actual ill will or spite on the part of any individual person, is there evidence capable of supporting a finding of “institutional malice” sufficient in law to satisfy the third element of the tort of malicious prosecution, such that malice is to be determined by the jury? Alternatively, is there evidence of “institutional malice” such that a jury would be directed to find malice satisfying the third element of the tort of malicious prosecution?

(iii) Has the plaintiff demonstrated on the balance of probabilities that the DPP or the State acted without reasonable and probable cause?

Collateral Abuse of Process

(iv) Has the plaintiff shown that “the Executive Government and the Crown in the right of New South Wales were the plaintiff’s prosecutor in enacting and promoting the proceedings”?

(v) Is there evidence capable of supporting a finding of an improper purpose by the State or the DPP, such that the question is to be determined by the jury? Alternatively, is there evidence of improper purpose by the State or the DPP such that a jury would be directed to find an improper purpose?

False Imprisonment

(vi) Were the orders of Hunter J made on 30 December 1994 and Levine J made on 23 February 1995 nullities, or did they, prior to the decision of the High Court on 12 September 1996, constitute lawful justification for the detention of the plaintiff?

8 The Director of Public Prosecutions (DPP) was originally the second defendant in the proceedings. He was dismissed from the proceedings by consent orders made on 16.9.2005. The first defendant agreed that if the plaintiff proved his allegations against the DPP, it would accept liability for any acts and defaults of the DPP.

9 After taking evidence and hearing submissions on these preliminary issues, the Court reserved judgment. The empanelling of the jury (if appropriate) was deferred pending the handing down of judgment. It follows that this judgment is not a decision on separate issues, such as is envisaged by Part 28 rule 28.2 of the Uniform Civil Procedure Rules 2005. Rather, it is a determination of preliminary issues raised in the trial and forms part of the trial.

Factual Background

10 In order to understand the legal issues, it is necessary to set out in some detail the factual background to these proceedings. The following facts were either agreed by the parties or are otherwise uncontroversial.

11 The plaintiff and his wife were estranged. There was considerable acrimony between them as to the custody of and access to the two young children of the marriage. On 5 September 1989 the plaintiff stabbed his wife in the house where she lived with the two children. The medical evidence showed two deep stab wounds in her chest, a third in her stomach, a fourth on her leg and a number of defensive wounds on her hands. She died later that day from her wounds.

12 The killing of the plaintiff’s wife had been preceded by threats. Two weeks before he had approached her in the public area of the Parramatta Family Court and run his right index finder across his throat. On that same day, the plaintiff was heard to tell her that she had better keep looking over her shoulder because he would be coming to get her. Some days later, the plaintiff told a friend that he was going to stab his wife.

13 The plaintiff was charged with murder. The prosecution in due course accepted a plea of guilty to manslaughter upon the basis of diminished responsibility. On 1 August 1990 the plaintiff was sentenced to terms of imprisonment for a total of 5 years and 4 months. Those terms expired on 4 January 1995.

14 While in prison the plaintiff wrote a series of threatening letters. A number of these letters were addressed to the stepsister of the plaintiff’s wife, who had custody of his children. These letters expressly and impliedly threatened a violent response if the relationship between the plaintiff and his children was damaged.

15 There were threatening letters sent to a psychologist/psychotherapist who in the early 1990’s was providing psychotherapy to the plaintiff’s son. A threatening letter was sent to a psychiatrist who provided advice to the Family Court concerning custody and access to the plaintiff’s children.

16 When interviewed from time to time by doctors when in custody, the plaintiff displayed anger and made threats of violence against those persons whom he believed had kept his children from him. The doctors, one of whom was a psychiatrist, were so concerned by the threats that they reported them to prison authorities.

17 In letters sent to the Offenders’ Review Board and the Family Court, the plaintiff threatened violence against those whom he perceived to be keeping his children from him.

18 As a result of those threats which were made in letters, the plaintiff was charged before Magistrate Kok on 29 December 1994 with 17 contraventions of s 85S of the Crimes Act 1914 (Commonwealth). The charges alleged that he had made improper use of postal services by sending threatening letters to relatives of his wife, including his own children. Magistrate Kok refused bail and warrants were issued (by Magistrates Kok and Heaney) on 29 December 1994, 5 January 1995 and 13 February 1995 requiring that the plaintiff be kept in remand. That last warrant expired on 7 March 1995. (There are no challenges to the lawfulness of these warrants.)

19 In October 1994 the Executive Government of NSW (the Executive) produced the Community Protection Bill 1994 (the Bill). On 27 October the Attorney General, on behalf of the Executive, introduced the Bill into the Legislative Council. The Bill was read for the first time on that date.

20 On that same date the Attorney General moved that the Bill be read a second time. He then sought leave of the Legislative Council to table a second reading speech on the Bill and to have it incorporated in Hansard. That leave was granted by the House. The Attorney General commended the Bill to the House.

21 The Bill was modelled on a Victorian precedent (Fairall “Violent Offenders and Community Protection Victoria – The Gary David Experience” (1993) 17 Criminal Law Journal 40 cited by Toohey J in Kable v Director of Public Prosecutions(NSW) (1996) 189 CLR 51 at 98. In its original form the Bill was expressed to apply to the preventative detention of violent offenders generally.

22 On 16 November 1994 the Attorney General agreed to amendments to the Bill in the Legislative Council to provide that the Bill would apply only to the plaintiff. On 23 November 1994 the Minister for Police and the Minister for Emergency Services introduced the Bill into the Legislative Assembly and moved that the Bill be read a second time.

23 On 2 December 1994 the Community Protection Act (CPA) passed through the Parliament. On or about 6 December 1994 the CPA was presented to the Governor by the Executive and received the royal assent. On 9 December 1994 the CPA was proclaimed.

24 The CPA purported to authorise applications by the DPP (and no other person: s 8) to the Supreme Court for a preventative detention order, for a maximum of 6 months, if the Court were satisfied that the plaintiff was more likely than not to commit a serious act of violence and that it was appropriate for the protection of a particular person or the community generally, that the plaintiff was held in custody (s 5). Proceedings were expressed to be civil (s 14) and were to be conducted on the civil standard (s 15). There was no defence of autrefois convict or autrefois acquit (s 55(4)).

25 While the Act was being considered by the Legislature, and before the completion of the plaintiff’s sentence, a body of expert opinion was produced which was ultimately relied upon by the DPP in his application under the CPA. There were two key elements to these opinions:

(a) There were real doubts as to whether the mental health legislation (the Mental Health Act 1990) applied because some of the practitioners did not find any evidence of mental illness.

(b) There was no doubt that there was a serious risk of further acts of violence being carried out by the plaintiff in the way he had threatened.

26 The following extracts are representative of the expert opinions:

Dr Mullen (Professor of Forensic Psychiatry), 1 November 1994:

“The strongest grounds for proceeding against Mr Kable are not based on any arcane or professional knowledge but common sense. Mr Kable issued a number of death threats against his wife in the context of pursuing what he saw as his entitlement, not only to access but to control over their children. Mr Kable acted on those threats and killed his wife. Mr Kable is again issuing threats, veiled and direct, to those he believes may stand in his way to obtaining what he believes are his rights with regard to access and control over his children. It would be brave not to say reckless, in such circumstances not to treat those threats seriously.”

Professor Wilson (Dean of the Faculty of Social Sciences and Humanities at Bond University), 19 December 1994:

“I have no hesitation whatsoever in saying that, based on my criminological and psychological experience, there is every likelihood that Mr Kable will, if released at present, kill or seriously injure an individual or individuals. I would expect Mr Kable would make the custody of his children the focus of his actions after release. As he sees himself as the victim of the events that have surrounded him, he would see any behaviour – including the killing of those he sees as stopping him obtaining his goal – as entirely justifiable.”

Dr McMurdo (Consultant Psychiatrist), 6 December 1994:

“The problems with individuals having a paranoid personality is that they can wait a very long time before they carry out their plans and the longer they bear their grudge the more vindicated in carrying out their action and Mr Kable has had a very long time to work out his revenge, so that there is a probability of him committing an act of violence but I cannot state that it is more likely than not. I certainly am concerned that Mr Kable, given appropriate provocation as he sees it, could commit a serious act of violence. It is probable that the provocation to stimulate an act of violence would be if he were to be refused custody of his children.”

Dr Strum (Consultant Psychiatrist), 21 December 1994:

“We have the situation, now, where Mr Kable has been making very serious threats to people whom he sees as preventing him from having contact with his children. I understand that he has made general threats implying that he might be a threat to children, in general, to teach society a lesson as to what it means to be as deprived as he, himself, was. I think that Mr Kable is very serious about his threats, and I think that he is a man of his word … I have no reason to doubt that he will deliver that which he has promised. I think that he is a danger to those whom he has threatened … I think that he is quite capable of avenging himself against society, in general, as he has proclaimed on many occasions.”

Dr Westmore (Forensic Psychiatrist), 22 December, 1994:

“The prediction of dangerousness will become far less certain or clear should he be released into the community without a period of intensive therapy. This in the hands of a senior and very experienced therapist. There are a number of issues which remain unresolved and these continue to pose a question mark over his future dangerousness, there are areas where he has impaired insight and these need to be addressed. In view of his vulnerability and previous behaviour, a considerable community support network may need to be established before he is released, this to provide him both with safety and security, as well as perhaps providing those to whom he has written threatening letters, the same level of safety and security.”

27 Doctor Phillips, Consultant Psychiatrist, who was called by the plaintiff in the hearing before Levine J, said in cross-examination on that occasion:

“I would not advocate that the prisoner just be permitted to walk out the door tomorrow, as in those circumstances a risk would arise. The worst scenario would be to let him out the door, find that he is not provided or allowed any access to his children, provide him with no treatment, and the risks go up.
Psychological counselling, before/around the time of leaving prison – and it might well be in the indefinite future – would be required.
Talking of safety, a person like Mr Kable would benefit from some degree or some system of what we might call psychological probation.
The only hard evidence that one has in terms of prediction as to future acts of violence is past acts of violence.”

28 On 13 December 1994 the DPP commenced proceedings by summons (No 13152 of 1994) in this Court seeking an interim order that the plaintiff be detained for three months pursuant to s 7 CPA, an order that the plaintiff be examined by duly qualified medical practitioners, psychiatrists and/or psychologists, and an order that the plaintiff be detained in prison for 6 months pursuant to s 5 CPA.

29 On 19 December 1994 Spender AJ gave judgment holding that the CPA was constitutional. He declined to stay the proceedings and made an order requiring the plaintiff to be psychiatrically examined by a doctor selected by the DPP. The constitutional challenge was based on the infringement by the Act of fundamental human rights.

30 On 22 and 23 December 1994 an urgent hearing took place before Hunter J in which the DPP sought an interim detention order under s 7. Further constitutional challenges were made, the first directed to s 109 inconsistency and then, raised on the second day of the hearing, a challenge based on a constitutional right to equality and a constitutional prohibition on detention other than subsequent to conviction. By judgment given on 30 December 1994 Hunter J made an interim order for the detention of the plaintiff for three months and rejected the constitutional challenges. That order was entered on 30 December 1994 and was not the subject of any appeal.

31 The DPP’s application under s 5 CPA for a detention order was heard by Levine J over 13 days between 9 January and 7 February 1995. The constitutional challenges were renewed and rejected. On 23 February 1995 Levine J made an order for preventative detention pursuant to s 5 in respect of the plaintiff for a period of six months.

32 On 12 April 1995 Magistrate Heaney ordered a permanent stay of the prosecution of the plaintiff with respect to the contraventions of s 85S of the Crimes Act 1914 (Commonwealth).

33 The order of Levine J was the subject of an expedited appeal to the Court of Appeal. The appeal was heard on 3 March and was dismissed on 9 May 1995. On 19 July 1995 Sully J dismissed the plaintiff’s application to revoke the order. On 21 August 1995 Grove J declined to revoke the order of Levine J but dismissed a further summons by the DPP for another order for detention. On 22 August 1995 the plaintiff was released from detention.

34 On 8 August 1995 the plaintiff was granted special leave to appeal to the High Court of Australia. That appeal was heard on 7 – 8 December 1995. On 9 September 1996 the High Court delivered its judgment. By a majority the High Court allowed the appeal.

35 The orders of the High Court were made some 13 months after the plaintiff was discharged from prison. It set aside the orders of the Court of Appeal and allowed the appeal from the orders of Levine J. The appeal to the High Court was confined to the orders of Levine J.

36 On 20 November 1996 the plaintiff commenced these proceedings.

Submissions and Consideration
Claim for Malicious Prosecution

37 The parties accept that the leading authority on the tort is A v State of NSW and Anor [2007] HCA 10, (2007) 230 CLR 500. It is common ground that the plaintiff suffered damage in that he was deprived of his liberty after his lawful term of imprisonment had expired. The question before the Court is whether the plaintiff can make out the four elements which constitute the cause of action.

38 The first element is that the proceedings, the subject of the claim, are proceedings of the kind to which the tort applies. The plaintiff accepts that the tort usually applies in respect of criminal proceedings and that he faces an initial difficulty in that the CPA declared proceedings taken under it to be civil.

39 Relying upon Gregory v Portsmouth City Council (2000) 1 AC 419 the plaintiff submits that the category of proceedings which could base a claim for malicious prosecution is not closed. It had already been extended to civil proceedings such as the malicious presentation of a winding up order or petition in bankruptcy (Johnson v Emerson (1871) LR 6 Ex 329; Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674). Similarly, the action was available when the issue of a search warrant was procured without reasonable cause and with malice (Gibbs v Rea (1998) AC 786). The plaintiff referred to Roy v Prior (1971) AC 470 where the House of Lords allowed an action by a plaintiff to proceed where he alleged that the obtaining ex parte of a bench warrant and his arrest were an abuse of process inasmuch as the solicitor responsible acted without reasonable cause and maliciously.

40 The plaintiff submits that the justification for extending the tort to proceedings brought under the CPA is stronger than in those civil cases where the tort is already available. He submits that proceedings under the CPA were unique in that they could only be brought against him, they could only be brought by the DPP and the relief sought involved a period of imprisonment. The plaintiff submits that the analogy with criminal proceedings is so close as to be almost indistinguishable.

41 While accepting that the purpose of applications under the CPA was the continued imprisonment of the plaintiff, the defendant submits that this is not determinative of whether applications under the CPA were “proceedings of the kind to which the tort applies”.

42 The defendant seeks to distinguish applications under the CPA from criminal proceedings by pointing out that under the Act there was scope for a number of applications, both by the DPP and by the plaintiff. This in fact occurred. There was no prohibition upon or limit on applications by the plaintiff to revoke any orders which were made. The defendant submits that this is quite different to criminal proceedings which finally terminate one way or the other by a verdict of conviction or innocence.

43 The defendant submits that to accede to the plaintiff’s submission would be to expand the tort of malicious prosecution to civil proceedings in an unwarranted way. The defendant relied upon The Beach Club Port Douglas v Page [2005] QCA 475 at [14] where McPherson JA (with whom Jerrard JA and Chesterman J agreed) said:

“It is different if you are a prosecutor without reasonable and probable cause. Then you may have an action for damages for malicious prosecution against your tormentor; but only if the proceedings brought against you are criminal and terminate in your acquittal, and not if they are simply penal, administrative or disciplinary: See Gregory v Portsmouth City Council [2000] 1 AC 419.”

44 The defendant relied upon the decision of the Full Court of NSW in Houghton v Oakley (1900) XX1 NSWR 26 at 30-31 where the following statement by Bowen LJ from Quartz Hill Goldmining Co was cited with approval:

“According to our present law the bringing of an ordinary action, however maliciously, and however great the want of reasonable and probable cause, will not support a subsequent action for malicious prosecution.”

The defendant submits that Houghton v Oakley is a persuasive case because there the proceedings involved a landlord claiming double the rent due and in default of payment, imprisonment for up to six months.

45 I am not prepared to decide this preliminary point against the plaintiff. The case which best sets out the rationale for not expanding the tort of malicious prosecution is Gregory v Portsmouth City Council. That was a case where a plaintiff sought to bring a claim for malicious prosecution in respect of disciplinary proceedings brought against him as a local councillor. At 426 Lord Steyn summarised the present state of the law as follows:

“The Law as it Stands
The paradigm is the tort of malicious prosecution of criminal proceedings. A distinctive feature of the tort is that the defendant has abused the coercive powers of the State. The law recognises that an official or private individual, who without justification sets in the motion the criminal law against the defendant, is likely to cause serious injury to the victim. It will typically involve suffering for the victim and his family as well as damage to the reputation and credit of the victim. On the other hand, in a democracy, which upholds the rule of law, it is a delicate matter to allow actions to be brought in respect of the regular processes of the law. Law enforcement agencies are heavily dependent on the assistance and cooperation of citizens in the enforcement of the law. The fear is that a widely drawn tort will discourage law enforcement: it may discourage not only malicious persons but honest citizens who would otherwise carry out their civic duties of reporting crime. In the result malevolent individuals must receive protection so that responsible citizens may have it in respect of the hazards of litigation. The tort of malicious prosecution is also defined against the backcloth that there are criminal sanctions, such as perjury, making false statement to the police, and wasting police time, which discourage the mischief under consideration. Moreover, the tort must be seen in the context of overlapping torts, such as defamation and malicious falsehood, which serve to protect interests of personality.”

46 Lord Steyn then examined the instances where the tort was available in respect of civil proceedings and set out the arguments in favour of extending the tort and those against. His conclusions at 432 were as follows:

“There is a stronger case for an extension of the tort to civil legal proceedings than to disciplinary proceedings. Both criminal and civil legal proceedings are covered by the same immunity. And as I have explained with reference to the potential damage of publicity about a civil action alleging fraud, the traditional explanation namely that in the case of civil proceedings the poison and the antidote are presented simultaneously, is no longer plausible. Nevertheless, for essentially practical reasons I am not persuaded that the general extension of the tort to civil proceedings has been shown to be necessary if one takes into account the protection afforded by other related torts. I am tolerably confident that any manifest injustices arising from groundless and damaging civil proceedings are either already adequately protected under other torts or are capable of being addressed by any necessary and desirable extension of other torts. Instead of embarking on a radical extension of the tort of malicious prosecution I would rely on the capacity of our tort law for pragmatic growth in response to true necessities demonstrated by experience.”

47 That reasoning, while answering arguments for the extension of the tort of malicious prosecution to disciplinary proceedings and civil proceedings generally, does not answer the particular matters raised by the plaintiff in this case. Because of the unique nature of the CPA and proceedings taken under it, a floodgates argument is not available. Moreover, the distinctive features of proceedings under the CPA, with the relief sought being an extension of an existing period of imprisonment provide a strong basis for the tort being available in respect of such proceedings. Accordingly, I would not rule against the plaintiff seeking damages for malicious prosecution on the basis that proceedings under the CPA were not proceedings of the kind to which the tort applied.

48 That, however, does not end the matter. The question arises if proceedings under the CPA are of a kind to which the tort applies, who initiated those proceedings? Put another way, who is the appropriate defendant or defendants in an action for malicious prosecution based on proceedings under the CPA.

49 Clearly the DPP is a potential defendant in that under the CPA he was the only party who could initiate proceedings. While acknowledging that and while not abandoning a claim against the DPP, the plaintiff’s real target is the Executive.

50 The plaintiff relies upon that line of authority to the effect that “the prosecutor” for the purpose of the tort of “malicious prosecution” includes the person or entity which was in fact instrumental in setting the proceedings in motion:

“For the purposes of this form of action the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor. It enables the person innocently accused to treat his virtual accuser as party to the criminal charge, a circumstance bearing directly on the question of the effect of the civil action of the judicial termination of the criminal proceedings. The substance and not the legal form must in all cases govern, and while, on the one hand, a person giving information to the police is not necessarily the prosecutor yet, on the other, the mere fact that the police conduct the prosecution does not exclude him from that position.”

( Davis v Gell (1924) 35 CLR 275 at 282 – 3 (Isaacs ACJ)).

“In any country where, as in India, prosecution is not private, an action for malicious prosecution in the most literal sense of the word cannot be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing. If that is done and trouble caused an action will lie … The rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to do so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings. If the actual prosecutor acts maliciously and without reasonable and probable cause, those who aid and abet in doing so are joint wrongdoers with him.
The expression “instigate” is not altogether free of ambiguity but it is used by Sir John Salmond ( Law of Torts, 7 ^th ed (1928) p 618), whence the learned judge seems to have taken the language of the questions put to the jury. In his charge, his Honour said:
“When I use the word ‘instigated’ in that question, I mean really do you come to the conclusion that the police were not acting in the ordinary course of their duties and on information received in arriving at a decision but were in effect the agents of the defendant company as has been suggested. In other words, was the position dominated by the defendant company, and was the police action really action through that of the defendant company”.

( Commonwealth Life Assurance Society Limited v Brain (1935) 53 CLR 343 at 379-80 Dixon J.)

51 The plaintiff submits that the evidence is all one way and that in reality the Executive was the “prosecutor” in the proceedings brought against him under the CPA. It initiated the Bill, submitted it to Parliament, accepted the amendment by the Opposition which confined its operation to him, promoted the further passage of the Bill through Parliament until it became an Act, presented the Act to the Governor for Royal Assent and on 9 December 1994 proclaimed it. The plaintiff places particular emphasis on the remarks of McHugh J in Kable at 122 where his Honour said:

“It [the CPA] makes the Supreme Court the instrument of a legislative plan, initiated by the Executive Government, to imprison the appellant by a process that is far removed from the judicial process that is ordinarily invoked when a court is asked to imprison a person.”

52 The plaintiff submits that once the CPA was proclaimed, the natural and inevitable consequence was that the DPP would commence proceedings against him under it.

53 The plaintiff acknowledges that a claim for malicious prosecution against the Executive formulated in that way is novel and that there is no direct authority supporting it. Nevertheless, he submits that this is a logical development of the tort given the unique and special nature of the CPA with its “ad hominem” focus on himself.

54 He submits that his argument on this issue accords with the analysis of responsible government in NSW in Egan v Willis (1998) HCA 71, (1998) 195 CLR 242 at 448 where the plurality said:

“[36] As Gleeson CJ said in his reasons for judgment in the Court of Appeal:
“At the present time New South Wales has a responsible and representative system of government, with a legislature comprising the Queen, the Legislative Council, and the Legislative Assembly. The Members of both Houses are popularly elected, although the methods of election, and the terms of office of the Members, are different.”
However, his Honour went on to point out that many aspects of responsible government, as it presently exists in the State, are not identified in the Constitution Act and depend upon what has come to be fixed by convention. The Chief Justice said:
“The Constitution Act makes no reference to Cabinet. It does not refer to the conventional requirement that Ministers be chosen from amongst the Members of one or other of the Houses of Parliament. It does not reflect the conventional requirement that the Governor may only appoint as Premier a person who commands the confidence of the Legislative Assembly, or that the Ministry must have the confidence of that House. No reference of any kind is made to the party system, which is of such importance at the level of political practice.”
…
[38] The contemporary operation of a system of responsible government reflects the significant role of modern political parties, one of which, or a coalition of which, in the ordinary course “controls” the Legislative Chamber or, in a bicameral system, at least the Lower House. Modern political parties did not exist in New South Wales when the bicameral legislature was first established under the 1855 Imperial Act . Indeed, until the end of the last century, no Australian colony had a developed system of political parties.” (Gaudron Gummow and Hayne JJ.)

55 I do not accept that an action for malicious prosecution is available against the Executive in the circumstances of this case. There may be scope for such a claim against the DPP, but not against the Executive on the basis relied upon by the plaintiff.

56 The prosecution was brought by the DPP. The DPP is not an organ of the Executive but an independent body set up pursuant to the Director of Public Prosecutions Act 1986. It is fundamental to that Act (s 7, 26 and s2A of Schedule 1) that the DPP be independent of the Executive. There is no evidence of any contact between the Executive and the DPP relating to the bringing of the proceedings against the plaintiff under the CPA.

57 The plaintiff’s submission misunderstands the way in which responsible government operates in New South Wales. While it is clear that the Executive normally (but not always) initiates legislation, that legislation has to be passed by the legislature, i.e. the two Houses of Parliament in New South Wales. The functions of the legislature are in theory and in practice separate from those of the Executive. It is the Parliament which passes the legislation and converts a Bill into an Act.

58 Implicit in the plaintiff’s submission is the assumption that the legislature (i.e. the two Houses of Parliament) operates as a mere rubber stamp for the Executive. That assumption has not been made out. As happened here, a Bill often undergoes a change in the course of the legislative process. The significant change which occurred in the Legislative Council in this case was the conversion of the CPA from an act which referred to violent offenders generally, to an act which was directed solely towards the preventative detention of the plaintiff. That amendment was not initiated by the Executive but by the Opposition.

59 The function of the Executive is to govern the State of New South Wales. This is done in part by the initiation of legislation. Once that legislation is initiated and placed before the legislature, it is the function of the legislature to consider and if appropriate to pass that legislation. The Executive then takes the appropriate steps to have the resulting legislation proclaimed. It is, however, the legislature ie the Houses of Parliament not the Executive, which decides whether the proposed legislation should go forward.

60 To submit as the plaintiff does that by initiating legislation and then taking the necessary steps to have that legislation obtain Royal Assent and be proclaimed, the Executive Government of the day should be regarded as a prosecutor if in fact that legislation involves the taking of proceedings by the DPP, is to misunderstand the separation of powers doctrine as it operates in the governance of New South Wales.

61 What the plaintiff is really arguing for is a right to sue the Executive in circumstances where legislation has been passed by the New South Wales Parliament but has subsequently been held by the High Court to be invalid. The right being argued for is not a right to sue the Executive in respect of the consequences flowing from such invalidation of legislation, but for the very act of initiating and proclaiming the invalidated legislation. Such a cause of action is unknown to the law of Australia and no compelling reason has been put by the plaintiff as to why such a right of action should exist. Similar arguments were decisively rejected by the High Court in Kruger & Ors v The Commonwealth of Australia (1996-1997) 190 CLR 1. At 147 Gummow J succinctly stated his rejection of the proposition as follows:

“The reasoning in the Australian authorities has not proceeded on the footing that, because a constitutional guarantee operates to impose a restraint upon legislative power (as does s 51(xxxi)) or to confer an immunity upon the individual in respect of certain activity (as does s 117), it follows that the guarantee confers a “right” which must have a remedy in the form of substantive relief upon a personal cause of action. Such a conclusion does not necessarily follow from the premise.”

62 While that is sufficient to deal with the plaintiff’s claim for malicious prosecution, in deference to the arguments put by both sides and in case my conclusions are incorrect, I propose to deal with the other issues raised.

63 In relation to the second element of the tort of malicious prosecution, the application before Hunter J did not terminate in favour of the plaintiff. An order was made, it was not the subject of any appeal, and it was never set aside. The application before Levine J did ultimately terminate in favour of the plaintiff and accordingly, it is only the application under the CPA before Levine J that can be the subject of the claim.

64 The third element of malicious prosecution to be established is that either the DPP or the Executive Government in initiating or maintaining the proceedings, acted maliciously. It was appreciated by the parties that this was a factual issue to be decided by the jury. The issue before the Court, however, is whether there is any evidence capable of establishing malice to be placed before the jury.

65 In relation to this element the plaintiff does not assert actual ill will or spite on the part of an individual person. He submits that malice is to be inferred or implied from all the circumstances. (Malice in this case must mean that the prosecutor acted for an improper purpose and not for the purpose of carrying the law into effect) (A v New South Wales at [40]).

66 The plaintiff does not suggest nor is there any evidence of malice on the part of the DPP or those bringing the proceedings on his behalf. The plaintiff submits that as against the Executive “institutional malice” is to be inferred from the circumstances in which the CPA was introduced to Parliament and proclaimed and from the provisions of the CPA with their “ad hominem” focus on him.

67 The plaintiff puts his submission as follows:

“The New South Wales Parliament had power to pass a law to imprison the plaintiff but did not do that. The Executive Government instead procured the passing of the Act by Parliament, to do by invalid and sham means that which it had power to do by other means. They obviously did this to obtain a cloak of judicial respectability and avoid the political opprobrium of a direct enactment to imprison the plaintiff.”

68 I have difficulty in understanding that submission which is in any event internally inconsistent. The concept of “procured the passing of the Act by Parliament” in the context of a Parliamentary democracy elides a number of concepts. Moreover, there is no evidence before the Court to support the submission.

69 The plaintiff seeks to rely upon various observations made by the High Court in Kable, particularly by Gaudron and McHugh JJ. This, however, is not evidence. The question of malice was not before the High Court and even if it were, the State of NSW was not a party to those proceedings and any evidentiary finding could not bind it.

70 The plaintiff submits that malice encapsulates an extended meaning that would include institutional or organisational contexts from which an improper purpose can be inferred. By this I understand the plaintiff to mean that malice is to be inferred from the contents of the CPA and from the fact that it was introduced into Parliament by the Executive and ultimately placed before the Governor and proclaimed.

71 It is true that in A v NSW the plurality said:

“[41] In the case of a public prosecution, initiated by a police officer, or a Director of Public Prosecutions or some other authority, where a prosecutor has no personal interest in the matter, and no personal knowledge of the parties or the alleged events, and is performing a public duty, the organisational setting in which a decision to prosecute is taken could be of factual importance in deciding the issue of malice.”

72 I read that passage as indicating that in a public prosecution context evidence of how the particular prosecutorial office operated could be of importance when determining whether malice has been established. The emphasis, however, is on evidence of the system in place and the process whereby the decision to prosecute was made. There is no such evidence in this case.

73 The plaintiff relies upon a particular interpretation of the concept of “institutional malice”. The interpretation is novel and no authority was cited to support it. I can find no basis in law for such a key element of the tort of malicious prosecution to be expanded in the fashion for which the plaintiff contends, i.e. that malice has an extended meaning that includes institutional or organisational contexts from which an improper purpose can be inferred. Even if such an approach were open, there is no evidence before me to support such a finding. In particular, there is no evidence from which to infer that the Executive proclaimed the Act because it did not want the political opprobrium of a direct enactment to imprison the plaintiff. Moreover, the Act as proclaimed was significantly different from the Bill proposed by the Executive.

74 There is no evidence before the Court of any actual ill will or malice by any person acting on behalf of the Executive or on the part of the Executive itself as a separate entity. Accordingly, I am not satisfied that there is any evidence which would justify the question of malice, either on the part of the DPP or on the part of the Executive being referred to the jury.

75 The fourth element of malicious prosecution to be established is that the DPP and/or the Executive acted without reasonable and probable cause.

76 The plaintiff submits that in accordance with the observations of Gaudron J in Kable, the CPA set up a regime which required “a guess” to be made by the Court about his future conduct. The plaintiff submits that a “guess” as to future conduct could not constitute reasonable and probable cause.

77 I do not accept the plaintiff’s submission in relation to this element of malicious prosecution.

78 To make out that element the plaintiff needs to show that either the DPP or the Executive acted without reasonable and probable cause. Reasonable and probable cause can only be assessed by reference to the provisions of the CPA. As was explained in A v New South Wales, there is a subjective and objective aspect to this element of the tort:

“[58] Secondly, the inquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful.”

79 In relation to the subjective aspect, there is no evidence that either the DPP or the Executive did not subjectively think that there was a case warranting the bringing of an application under the CPA against the plaintiff.

80 In relation to the objective aspect, all the evidence is one way, i.e. to the effect that there was a probability that the plaintiff would commit a serious act of violence following his release from imprisonment. The evidence adduced by the DPP before Hunter and Levine JJ persuaded their Honours to that effect. The same evidence is before me in these proceedings and I agree with their Honours’ findings.

81 In that regard at page 17 of his judgment Hunter J said:

“Having regard to the strength and nature of the plaintiff’s case as outlined above, I am certain that it is reasonable in all the circumstances that an interim detention order be made.”

At p 175 of his judgment, Levine J said:

“I am persuaded to a high degree of comfortable satisfaction that there is a substantial likelihood that Mr Kable will commit a serious act of violence and therefore hold that it is appropriate for the protection of his children and their carers and the community generally that he be held in custody.”

82 It is common ground that subsequently the High Court in Kable held that the Act was invalid and set aside Levine J’s order. That does not mean that the DPP acted without reasonable and probable cause given the requirements of the CPA while the Act was operative.

83 The plaintiff’s submission as to the CPA requiring a “guess” is no answer to that proposition. The question of reasonable and probable cause is not decided in a vacuum but by reference to the proceedings under consideration. Those proceedings were brought in accordance with the CPA which required that an assessment be made as to the likelihood of future violent conduct on the part of the plaintiff. This is an exercise frequently carried out by Courts, particularly in the area of the assessment of damages.

84 Finally, the plaintiff’s submissions do not explain how the absence of reasonable and probable cause could either subjectively or objectively be related to the conduct of the Executive. There is no evidence to that effect before the Court, other than the bare fact that the Executive had the CPA proclaimed.

85 The conclusion I have reached is that the plaintiff’s claim for malicious prosecution is bad in law and that there is no evidence before the Court which would allow any aspect of the tort to be placed before the jury for its consideration.

Collateral Abuse of Process

86 While not abandoning this part of the statement of claim it would be fair to say that the plaintiff does not press it with particular vigour.

87 The plaintiff accepts that Leerdam & Anor v Noori & Ors [2009] NSWCA 90 is authority for the proposition that collateral abuse of process cannot be committed by a non-party (Spigelman CJ at [28 – 43], Allsop at [65], Macfarlan JA at [125 – 126]). He submits, however that the Executive was his prosecutor in enacting and promoting the proceedings under the CPA and accordingly was a “party” within the principles explained in Leerdam.

88 The Executive was not a party to the proceedings brought under the CPA. It did not appear on the record. There is nothing in Leerdam which would extend the concept of “party” in the way sought by the plaintiff. On the contrary, Leerdam approved a decision of the Full Federal Court in Emanuele v Hedley (Federal Court of Australia, 19 June 1998, unreported). Emanuele held that “an action for abuse of process is available only against the party who actually instituted the proceedings”. It was the DPP which brought the proceedings under the CPA and ultimately he was the only respondent before the High Court when the CPA was declared invalid.

89 I have already rejected the plaintiff’s submission that for the purposes of the tort of malicious prosecution, the Executive should be regarded as a prosecutor in the proceedings brought against him under the CPA. Those same reasons apply to the plaintiff’s submission that the Executive was a party to the proceedings brought against him under the CPA.

90 Since there can only be an abuse of process in connection with the process of a court, and the Executive was not a party to the proceedings under the CPA, the plaintiff’s claim for collateral abuse of process must fail. If I am wrong in that conclusion, the claim should fail because there is no evidence, either direct or available by way of inference, which would support any improper purpose associated with the proceedings under the CPA.

False Imprisonment

91 Before examining the submissions, there is a need to clarify the period of imprisonment under consideration. The orders made by Hunter J were not the subject of appeal and have not been set aside. The orders which were set aside were those of Levine J which directed that the plaintiff be detained in custody from 23 February 1995 until 22 August 1995. Moreover, orders were made by Magistrates Kok and Heaney in respect of the s85S prosecutions that the plaintiff should remain in custody bail refused until 7 March 1995. Those orders have not been challenged. It follows that the period of “false imprisonment” upon which the plaintiff can rely is from 7 March to 22 August 1995.

92 The plaintiff submits that the tort of false imprisonment is a tort of strict liability. He says that he was falsely imprisoned because his imprisonment was ordered pursuant to an Act which was subsequently held to be invalid. In those circumstances, he submits, the orders of Hunter and Levine JJ pursuant to which he was held in custody were a nullity and consequently his imprisonment was unlawful.

93 The plaintiff submits that the cases relied upon by the defendant protect the immediate gaolers who were responsible for him being detained in custody, but do not protect the defendant from its direct responsibility for his wrongful imprisonment. In that regard, the plaintiff relies upon his earlier submissions that the Executive was a moving party as prosecutor in the proceedings under the CPA. Alternatively, he submits that the DPP should be held liable for his wrongful imprisonment in that it proceeded against him pursuant to invalid legislation. Since the defendant has accepted liability for any liability of the DPP, it should be found liable for his false imprisonment.

94 Finally, the plaintiff submits that the persons responsible for wrongfully detaining him in prison were not only his direct gaolers but the Corrective Services Commission. He submits that since the defendant is responsible for the actions of the Corrective Services Commission, it is liable for his wrongful imprisonment on that basis as well. To support that proposition the plaintiff relies upon the observations of Clarke JA, with whom Priestley JA concurred, in Cowell v Corrective Services Commission of NSW (1988) 13 NSW LR 714 at 737B where his Honour said:

“[The prisoner is in the] joint custody of the first respondent [Corrective Services Commission of New South Wales] and the particular person who was in charge of the prisoner. “

95 I should interpolate that at the time that last submission was made, I did not understand the distinction which was being made (T57.25-.43). I confess to still not understanding the distinction which the plaintiff seeks to draw. It seems to me that if the direct gaolers of the plaintiff were protected by the orders of the Supreme Court, so that they are not to be held liable for the plaintiff’s imprisonment, the Corrective Services Commission would also be protected. With great respect to those representing the plaintiff, the distinction between the two entities has not been made out.

96 The two cases upon which the plaintiff relies, Cowell and R v Governor of Brockhill Prison, Ex parte Evans (No 2) (2001) 2 AC 19 do not provide authority for the proposition relied on. In both those cases, the orders of the Court were not impugned. A mistake was made by prison authorities in calculating the precise length of the prisoner’s sentence and consequently the defence that they were merely obeying court orders was not available to them.

97 Claims for false imprisonment being claims of strict liability are directed at the persons or authority responsible for actually detaining the plaintiff. Accordingly, I do not see how the DPP whose actions encompassed the bringing of the proceedings under the CPA but nothing more, could be liable for the tort.

98 Similarly, I do not see how the Executive could be directly liable for the tort as distinct from being vicariously liable for the actions of either the gaolers personally or the Corrective Services Commission. I have already rejected the plaintiff’s submissions that the Executive was in some fashion a prosecutor under the CPA or a party to those proceedings. There is no authority for the proposition that the Executive is to be held directly responsible where a person is wrongfully imprisoned after a hearing before a court pursuant to a law enacted by it. Such a proposition misunderstands the operation of responsible government in NSW and misunderstands the elements of the tort of false imprisonment.

99 For the defendant to be held liable for the plaintiff’s wrongful imprisonment between 7 March and 22 August 1995, liability has to be established against the Corrective Services Commission and its servants responsible for his detention and for whose actions the defendant is liable.

100 The plaintiff was imprisoned pursuant to orders of Hunter J, Magistrates Kok and Heaney and ultimately Levine J. The orders of Levine J were subsequently set aside by order of the High Court on the basis that the law pursuant to which those orders were made was invalid. In relation to the tort of false imprisonment, the question is whether the decision by the High Court that the Act pursuant to which the order for imprisonment was made was a nullity, gives to the plaintiff a cause of action for wrongful imprisonment against the Corrective Services Commission or its servants.

101 The direct cause of the plaintiff being imprisoned for the relevant period was the order of Levine J of 23 February 1995. Once that order was made, Corrective Services Commission and its officers were obliged to obey it. This is despite the fact that ultimately the Act under which the order was made was declared a nullity by the High Court. The orders of Levine J being those of a superior Court were valid until they were set aside.

102 A convenient statement of the law on this issue is in R v Governor of Brockhill Prison at 45-46 where Lord Hobhouse said:

“The argument of the Solicitor General persistently confused a valid order for detention which is subsequently set aside with a valid order which is misinterpreted; it also confused a valid order which has not yet been set aside with an order which was never valid. These distinctions are basic to any legal system. An appeal against a conviction or sentence may lead to the conviction being quashed or the sentence being set aside or varied. But up until that time there were lawful orders of the sentencing court which were orders which had to be obeyed. This point was clearly and correctly made by Lord Woolf MR in the Court of Appeal in the present case even though the sentencing court may have exceeded its powers in passing the sentence which it did.”

103 There is a long line of authority applying those principles and protecting those who execute the orders of a superior court (Russell v East Anglican Railway Co (1850) 3 Mac & G 104 at 117). There Lord Truro speaking of the Court of Chancery (a superior court) said:

“… it is not open to any party to question the orders of this Court, or any process issued under the authority of this Court, by disobedience. I know of no act which this Court may do, which may not be questioned in a proper form, and on a proper application; but … it is not competent for anyone … to disobey an injunction or any other order of the Court, on the ground that such orders were improvidently made. The parties must take a proper course to question their validity, but while they exist they must be obeyed.”

104 In Henderson v Preston (1888) 21 QBD 362 at 366 Lord Esher said:

“That being the warrant, I adopt the judgment of Stephen J when he said that the warrant protects the Governor, and that no more need be said. In the case of Olliet v Bessy (1682) T Jones’ Rep 214 decided about two hundred 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.”

105 The reasons for this line of authority are obvious and well established. A gaoler is compelled to act in accordance with court orders. The implications of this were explained by Lord Denman CJ in Andrew v Marris (1841) 1 QB 3 at 16 where he said:

“There would be something very unreasonable in the law if it placed him in the position of being punishable by the court for disobedience and at that time suable by the party for obedience to the warrant.”

The plaintiff did not take the Court to any authority to the contrary.

106 Australian authority at the highest level is to similar effect. Rich J, with whom Latham CJ agreed, said in Cameron v Cole (1944) 68 CLR 571 at 590:

“It is settled by the highest authority that the decision of a superior Court, even if in excess of jurisdiction, is at worst voidable, and is valid unless and until it is set aside.”

See also Emanuele v ASC (1997) 188 CLR 114 at 119-120, 130, 150; Gould v Brown (1998) 193 CLR 346 at 463; Re Brown; Ex parte Amann (1999) 198 CLR 511.

107 Perhaps the most definitive statement by the High Court on this issue is in Re Macks; Ex parte Saint (2000) 204 CLR 158. The question arose whether orders made by the Federal Court pursuant to jurisdiction purportedly conferred by invalid legislation were nullities. Specifically, Victoria, South Australia and Western Australia argued that “orders made in the exercise of jurisdiction conferred by a statute which is invalid for constitutional reasons are nullities and cannot be saved by the doctrine that orders of superior courts made in excess of jurisdiction are merely voidable” (page 166 and [48]).

108 The High Court unanimously rejected that proposition. It is the same proposition relied upon by the plaintiff here. Although the High Court was dealing with the jurisdiction of the Federal Court, the expressions of opinion by the members of the Court were couched in terms which were equally applicable to a superior court of a State.

109 Gleeson CJ dealt with the question at [19 – 23], Gaudron J at [48 – 57], McHugh J at [152], Gummow J at [214 - 220], Kirby J at [253 – 257] and Heyne and Callinan JJ at [328 – 344]. Gummow J summarised his conclusions at [216-218] as follows:

“[216] … However, the power in s 51(xxxix) does empower the Parliament to endow the orders of a federal court with the characteristics of those of a superior court of record as understood at common law, to the extent that these characteristics are consistent with the Constitution, particularly Ch III. Those characteristics include the treatment of orders made in excess of jurisdiction (whether on constitutional grounds or for reasons of an inadequate legislative grant under s 77(i)) as effective until they are quashed or their enforcement is enjoined by this Court or they are set aside on appeal. The creation of the Federal Court by s 5 of the Federal Court Act as a superior court of record has this effect.
…
[217] The Attorneys-General for Victoria and South Australia, who intervene in support of the validity of the SA Act and the Queensland Act, submit that the well-settled proposition that the orders of a superior court of record are to be treated as valid until set aside cannot apply in any sense to the orders made by the Federal Court. Rather, the orders upon which the liquidator relies were "void ab initio" and nullities. This is said to be a consequence of the doctrine accepted in this Court in Ha v New South Wales that the judicial power of the Commonwealth does not extend to the determination of invalidity of a law with prospective effect only. The Attorneys then submit that there is no occasion for the operation of s 109 with respect to the State laws in question here. This is because no provision of the Federal Court Act empowered the Federal Court to make the orders in question; they never had any force or effect.

[218] It follows from what has been said above that the conclusions advocated by the Attorneys should not be accepted…”

110 As Re Macks made clear, the finding by the High Court that the CPA was invalid and the setting aside of the order of Levine J, do not alter the authority of the orders which were in force at the time of the plaintiff’s detention.

111 The most recent statement of the principle in circumstances not altogether dissimilar from those presently under consideration is in International Finance Trust Co Ltd v NSW Crime Commission (No 2) [2010] NSWCA 46. In that matter proceedings had been commenced by the Crime Commission which resulted in an initial set of restraining orders made under sections 10 and 12 of the Criminal Assets Recovery Act 1990 (the Recovery Act). In those proceedings, a Deputy Registrar of the Court made a proceeds assessment order by consent between the Crime Commission and one of the defendants. On appeal to the High Court, s 10 of the Recovery Act was declared invalid and the proceedings were dismissed. The question which arose in the appeal was whether the consent order was discharged by virtue of the dismissal by the High Court of the proceedings in which it was entered.

112 On this issue, Basten JA (with whom Allsop P and McClellan CJ at CL agreed) said:

“47 Finally, it is necessary to note the effect of orders of the Court. It was not in dispute that orders made in the Supreme Court, being a superior court of record, were valid and effective unless and until set aside.
…
53 The effect of the appellant’s submission was that, the proceedings having been dismissed, all other orders made in the course of the proceedings must be taken to have been discharged, even if not expressly set aside.


54 If that were correct, it would be a consequence which followed inadvertently, at least in relation to the orders made by Hislop J. Further, it is inconsistent with common practice in relation to the exercise of judicial power. Where orders have been made erroneously in favour of an applicant, it is never the case that the only order made by the appellate court is one dismissing the application, as opposed to an order setting aside the orders made below and in place thereof ordering that the application be dismissed. This is consistent with principle, namely that the orders of the superior court will have effect until they are set aside or discharged. It would be inappropriate merely to dismiss the original application without dealing with orders already made. Quite apart from considerations of transparency, there would be a question, as there is in the present case, as to the steps which can properly be taken to undo the consequences of orders which have already been carried into effect. For example, the Public Trustee has taken control of property, with power under certain orders to dispose or attempt to dispose of the property and to acquire listed shares with the proceeds of sale.
…
56 It follows that the mere dismissal of the proceedings as against the appellants has not had the effect of discharging or setting aside orders made by Hislop J on 25 October 2008, nor orders made by the Registrar, by consent, on 21 July 2009.
57 The fact that the restraining orders made by Hislop J have not been set aside (the appeal having been discontinued with leave on Monday, 7 December 2009), is of little consequence. The legislative restraining order can take effect whether or not an order has been made by a judge of this Court pursuant to an invalid statutory provision: Re Macks . It may once have been thought necessary or desirable to set aside the orders made by Hislop J, but to the extent that order 1 in the notice of motion of 30 November 2008 sought to have that effect, that course was abandoned once the second appeal was discontinued without such orders having been made in those proceedings.”

113 It follows from the above analysis that the plaintiff has not made out his claim for false imprisonment against the defendant on any of the bases relied upon.

Conclusion and Orders

114 The plaintiff has failed to make out any of the causes of action relied upon in his statement of claim. He has failed to make out his claim for malicious prosecution because the defendant was not his prosecutor, there is no evidence of malice, institutional or otherwise to go to the jury, and the evidence is overwhelmingly to the effect that the DPP had reasonable and probable cause to bring proceedings under the CPA against him.

115 He has failed to make out his claim for collateral abuse of process because the defendant was not a party to the proceedings and there is no evidence of an improper purpose associated with the proceedings under the CPA. His claim for false imprisonment fails because his imprisonment took place pursuant to orders of a superior court which were effective until they were set aside.

116 In those circumstances, there is no need for a jury to be empanelled because there is no issue to be decided by it. There should be judgment for the defendant. Subject to any special order for costs being applied for, I propose to order that the plaintiff pay the defendant’s costs of the proceedings.

Orders

117 1. I enter judgment for the defendant.

2. The plaintiff is to pay the defendant’s costs of these proceedings.

3. I grant leave to the parties to apply to the Court within 14 days should they wish to make submissions as to costs.

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