Kable v State of New South Wales

[1999] NSWSC 201

Reported Decision: 103 A Crim R 445

New South Wales

Supreme Court

CITATION:

Kable v State of New South Wales & Anor [1999] NSWSC 201 revised - 14/04/99

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

21296/96

HEARING DATE(S):

11 March 1999

JUDGMENT DATE:

18 March 1999

PARTIES :

Gregory Wayne Kable
(Plaintiff)

State of New South Wales
(First Defendant)

Director of Public Prosecutions
(Second Defendant)

JUDGMENT OF:

Master Harrison

COUNSEL :

Mr G B Hall QC with Mr D Elliott
(Plaintiff)

Mr M Leeming
(First Defendant)

Mr G S Hoskings SC
(Second Defendant)

SOLICITORS:

Mr Neil-Smith
Brezniak Neil-Smith & Co., Sydney
(Plaintiff)

Mr Ian Linwood
Crown Solicitors Office, Sydney
(First Defendant)

Mr S E O'Connor
Solicitor of Public Prosecutions
(Second Defendant)

CATCHWORDS:

Strike out defence; Summary judgment; Directions

ACTS CITED:

Community Protection Act 1994 (NSW)
Supreme Court Act - s 88
Director of Public Prosecutions Act 1986

CASES CITED:

Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51
Dey v Victoria Railway Commissioners (1948-49) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Webster & Anor v Lampard (1993) 177 CLR 598
R v Governor of Brockhill Prison ex parte Evans (No 2) [1998] All ER 993
William v Spautz (1991-92) 174 CLR 509
Air Services Australia v Zarb (NSWCA unreported
26 August 1998
Rolfe AJA)

DECISION:

See para 25

12


THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 18 MARCH 1999

21296/96 - GREGORY WAYNE KABLE v STATE OF
NEW SOUTH WALES & ANOR

JUDGMENT (Strike out defence - summary judgment;
directions )


1 MASTER: By notice of motion filed 2 November 1998 the plaintiff seeks that judgment be entered for him with damages to be assessed and that the proceedings be set down for trial. Alternatively, the plaintiff seeks that the proceedings be referred for trial and assessment of the following issues, firstly, is the plaintiff entitled to damages for wrongful imprisonment? and, if so, in what amount should damages be assessed and secondly, is the plaintiff entitled to damages for wrongful imprisonment or malice and if so what amount of damages should be assessed? The plaintiff did not seek an order in the notice of motion to dispense with the jury and this issue was not determined. The defendants opposed the motion.
2 On 1 August 1990 the plaintiff pleaded guilty to a charge of manslaughter. The plea was accepted on the basis of diminished responsibility and the plaintiff was sentenced to imprisonment for 5 years and 4 months. The plaintiff was entitled to be released on 5 January 1995. However, on 6 December 1994, the Community Protection Bill had passed through both Houses of the New South Wales Parliament and was assented to by the Governor. It commenced on 9 December 1994.
3 Section 5(1) of the Community Protection Act 1994 (NSW) empowered the Supreme Court to make an order for the detention of a specified person in prison for a specified period if it was satisfied on reasonable grounds that the person 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 person be held in custody. The maximum period for detention was six months (sub-s (2)) but more than one application could be made in relation to the same person (sub-s (4)). Section 3(3) stated that the Act authorised the making of a detention order against a named individual and no other. There was only one named individual, the plaintiff.
4 On 13 December 1994 the Director of Public Prosecutions commenced proceedings (No 13152 of 1994) in this court seeking an interim order that the plaintiff be detained in prison for 3 months pursuant to the Community Protection Act 1994 (NSW) and that the plaintiff undergo medical examination. On 19 December 1994 Spender JA gave judgment and held that the Act was constitutional and declined to stay the proceedings and made an order requiring the plaintiff to be psychiatrically examined by doctors selected by the Director of Public Prosecutions and the application for an interim detention order was stood over to 22 December 1994. On 30 December 1994 Hunter J made an interim order pursuant to the Community Protection Act 1994 (NSW) for the detention of the plaintiff and set the application for a final order down for hearing on 9 January 1995. On 23 February 1995 Levine J made an order for preventive detention, pursuant to s 5(1) of the Community Protection Act 1994 (NSW) in respect of the plaintiff for a period of six months.
5 On 9 May 1995 the plaintiff’s appeal against the order made by Levine J was dismissed. On 19 July 1995 Sully J dismissed the plaintiff’s application to revoke the order. On 3 August 1998 the Director of Public Prosecutions filed a summons seeking an interim order for the plaintiff’s detention and a further order that the plaintiff be detained for six months. On 21 August 1995 Grove J decline to revoke the order made by Levine J but also declined to make any further order against the plaintiff. On 22 August 1995 the plaintiff was released from prison.
6 The plaintiff had sought and been granted special leave to appeal on 8 August 1995. On 12 September 1996 the High Court delivered its judgment in Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51. The issue before the High Court for determination was whether the Community Protection Act 1994 (NSW) is a valid law of the Parliament of New South Wales. Brennan CJ and Dawson J held that the Act was valid. Toohey, Gaudron and McHugh JJ held that the Act was invalid. Her Honour also stated that it was not possible to sever s 5 from the rest of the Act which exists only to give effect to that section. Gummow J concluded that the whole of the provisions of Pt 2 of the Act (ss 5-26) are invalid. The provisions of Pt 1 (ss1-4) are ancillary to Pt 2 and fall with it, save in so far as they may have any valid operation in relation to Pt 3 (ss 27-31). In relation to Pt 3 Gummow J stated that:
“Sections 27, 29, 30 and 31 are ancillary to Pt 2 and have no operation in respect of other persons, subject matters or circumstances within the meaning of s 31(2) of the Interpretation Act 1987 (NSW), such as to preserve an operation unaffected by the invalidity of the balance of the statute. There remains s 28. This states that no action lies against any person (including the State) for or in respect of any act or omission done or omitted by the person so long as it was done or omitted in good faith for the purposes of, or in connection with the administration or execution of, this Act. The section operates to confer protection in respect of acts or omissions done or omitted “in good faith”. But they must have been done or omitted also for the purposes of, or in connection with the administration or execution of, “this Act”. That assumes, contrary to the true situation, the validity of the statute. In truth, there was no law to be administered or executed. I conclude that s 28 falls also (301).”
7 It is convenient to deal with the second defendant’s submission that at trial it would be argued that the High Court decision did not hold that the whole of the Act was invalid. Three of the six Judges held that the Act was invalid. It is my view that Gummow J held that the whole of the Act was invalid. Hence four Judges held that the Act was invalid. This submission fails.
8 The plaintiff alleges in the amended statement of claim that the conduct of the first and second defendants jointly and severally in instituting proceedings against him were unconstitutional, improper, arbitrary and malicious and were an abuse of process (para 21 ASC). The plaintiff alleges causes of action against the first defendant of false imprisonment and assault and battery (paras 31 and 32 ASC). He alleges that the joint

and several abuses by the defendants of the court’s process in instituting the former proceedings against him caused and materially contributed to his suffering, harm, injury and loss (para 22 ASC). He is seeking damages including aggravated exemplary damages.
9 On 9 March 1998, both defendants filed defences to the amended statement of claim. Both defendants deny the allegations in paragraph 21. In relation to paragraph 31 the defendants deny false imprisonment and say that the orders, on their face appeared to be within jurisdiction and without legal error (para 12 D). The first defendant has not specifically pleaded to the allegations of assault and battery. The second defendant has denied any abuse of process. It has also denied that it acted improperly, arbitrarily, oppressively or maliciously. It says that the second defendant was entitled and obliged to assume the validity (paras 8 and 9 D). It denies that it acted with malice (para 10 D). In answer to the whole of the statement of claim it pleads that the action is wholly barred by virtue of s 35(2) of the Director of Public Prosecutions Act 1986 (para 12 D).
10 The issue to be decided is whether the plaintiff is entitled to summary judgment against the defendants pursuant rule 2 of Part 13 of the Supreme Court Rules , notwithstanding the provisions of s 88(b) of the Supreme Court Act and rule 1 of Part 13 of the Rules .
11 Part 13 of the Supreme Court Rules is headed “Summary Disposal”. Part 13 rules 1 and 2 fall into Division 1 of Part 13 which is headed “summary judgment”. The relevant parts of Pt 13 rules 1 and 2 say:

“Application

1. This Division applies to all proceedings except proceedings within the application of section 88 of the Act (which relates to cases of fraud and other matters).

Summary judgment

2(1) Where, on application by the plaintiff in relation to any claim for relief or any part of any claim for relief of the plaintiff -


(a) there is evidence of the facts on which the claim or part is based; and

(b) there is evidence given by the plaintiff or by some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed,
the Court may, by order, on terms, give such judgment for the plaintiff on that claim or part as the nature of the case requires.

(2) Without limiting subrule (1), the Court may, under that subrule, give judgment for the plaintiff for damages to be assessed.”

12 Section 88 of the Supreme Court Act provides:
“Proceedings on a common law claim in which there are issues of fact -

(a) on a charge of fraud against a party; or

(b) on a claim in respect of defamation, malicious prosecution, false imprisonment, seduction or breach of promise of marriage,

shall be tried with a jury.”


13 It is my view that the meaning of s 13(1) is clear. The summary judgment provision does not apply to cases that fall within s 88. The plaintiff has alleged causes of action of malicious prosecution against both defendants and false imprisonment against the first defendant in these proceedings. These causes of action fall within s 88. These causes of action shall be tried by a jury. The plaintiff is not entitled to seek summary judgment. If I am wrong then I turn to consider the plaintiff’s other submissions.
14 In General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Barwick CJ, who heard the application alone, referred to Dixon J’s passage quoted above at p 130. He then stated:
“Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”
15 Barwick CJ also said:
“It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense.”
16 In a recent decision in Air Services Australia v Zarb (NSWCA unreported, 26 August 1998) Rolfe AJA found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railway Commissioners (1948-49)78 CLR 62, General Steel and Webster & Anor v Lampard (1993) 177 CLR 598. Other than General Steel I need not reproduce the relevant parts of those decisions.
17 The plaintiff’s Counsel conceded that the onus is on him to demonstrate that there is evidence of the facts, but submitted that there are no facts that are truly in issue and that the decision of the High Court implies that there was malice. It should be noted that the first defendant was not a

party to the High Court proceedings. It is my view that the High Court did not imply malice nor did they consider malicious prosecution, false imprisonment, assault and the other causes of action pleaded by the plaintiff.
18 The plaintiff referred to R v Governor of Brockhill Prison ex parte Evans (No 2) [1998] All ER 993 particularly the following passage by Lord Woolf MR:
“The appeal raises issues of importance involving two principles which are deeply embedded in our law. The first is that any authoritative decision of the courts stating what is the law operates retrospectively. The decision does not only state what the law is from the date of the decision, it states what it has always been. This is the position even if in setting out the law the court overrules an earlier decision which took a totally different view of the law. The second principles is that a person imprisoned without authority is entitled to damages irrespective of any question of fault on the part of the person responsible for the imprisonment.”
19 The plaintiff’s counsel submitted that the law was clear. However, in Brockhill the plaintiff’s cause of action was false imprisonment. She did not plead malicious prosecution, assault and abuse of process.
20 A person alleging abuse of process must show that the predominant purpose of the other person using the legal process has been other than that for which it was designed and there is a heavy onus placed upon the party alleging it - (see William v Spautz (1991-92) 174 CLR 509, joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ at p 529). Malicious prosecution requires the plaintiff to prove that there was an absence of reasonable or probable cause for instituting proceedings and malice in instituting them. The mental state of the defendants through their officers will be relevant. There is no evidence on this issue before the court. The High Court in Kable did not determine these causes of action of malicious prosecution, false imprisonment, assault or an abuse of process.
21 The first defendant intends to rely on s 35 of the Director of Public Prosecutions Act 1986 which affords officers, crown prosecutors and their assistants protection from liability.
22 It is my view that there will be evidence of the facts adduced by the defendants on which the claim is based. Additionally, the second defendant has arguable legal points such as to whether s 35 of the Director of Public Prosecutions Act 1986 affords protection from liability. It must also be borne in mind that this is a novel case arising out of a statute being passed by the New South Wales Parliament to keep one person in prison despite serving his sentence and not being convicted of a crime. At the hearing, the first defendant’s reasons for passing the legislation will be canvassed. In the exercise of my discretion, I do not think that this is an appropriate matter in which to exercise summary judgment.
23 Alternatively, the plaintiff sought that this matter be listed for trial for which he is ready. The defendants have yet to arrange for joint medical examinations but are otherwise ready for hearing. It is anticipated that matter which appears in public records will not be disputed. The plaintiff

estimates that the case will take one week and seeks expedition. The defendants estimate it will take 2 weeks. The defendants were reluctant to prepare a joint memorandum of issues in dispute as they say that those issues appear in the pleadings.
24 These proceedings were commenced on 20 November 1996 and aside from an initial status conference in 1997 and this motion, there has been little activity initiated by the plaintiff’s legal representatives to have this matter listed for trial since then. Nevertheless, in light of the High Court’s decision striking down the legislation as invalid, it is my view that the plaintiff should be afforded some priority. However this case should not be permitted to totally bypass the case management system - see Practice Note 88. This matter is to be referred to a status conference in about two weeks time. At that conference the parties are to furnish the registrar with a joint timetable of steps that need to be taken by them or failing agreement, each party is to submit his timetable. This timetable should include a statement as to whether or not that party is willing to attend mediation. It is intended that this matter should be ready to be placed in the next long matters callover which usually occurs annually in about November each year.
25 The plaintiff was unsuccessful with his part of the motion seeking summary judgment. However a court appearance would have been necessary in any event to progress this matter. Directions were made as sought in para (3) of the notice of motion. Accordingly it is my view that the appropriate order for costs is that costs of the motion be costs in the cause.
26

The orders I make are:
(1) Paragraph (1) of the plaintiff’s notice motion filed 2 November 1998 is dismissed.

(2) A status conference is to be allocated in about 2 weeks time. The Registry is to notify the parties of the time and date of the conference. Parties are to submit either a proposed joint timetable or failing that, individual proposed timetables to the Registrar at that conference.

(3) Costs of the plaintiff’s motion filed 2 November 1998 are to be costs in the cause.

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Last Modified: 06/30/2000