Kable v State of New South Wales

The case of *Kable v State of New South Wales* concerned an appeal to the Court of Appeal of New South Wales regarding the validity of a Supreme Court order made under a statutory power that was alleged to be incompatible with the exercise of judicial power. The plaintiff, Kable, had been detained pursuant to an order made by a judge of the Supreme Court of New South Wales, acting on the application of the Director of Public Prosecutions under a specific piece of State legislation. Kable contended that this legislation and the resulting order were invalid, leading to his unlawful imprisonment.

The central legal issues before the Court of Appeal were whether the Supreme Court order, made under legislation deemed incompatible with judicial power, was valid until set aside, and whether a non-judicial order derived its authority solely from the enabling legislation. The court also considered whether the State was vicariously liable for the plaintiff's detention, the existence of common law protection from tortious liability for officers enforcing such orders, and whether the plaintiff's detention constituted unlawful imprisonment, malicious prosecution, or collateral abuse of process. The application of federal law, specifically sections 39(2), 79, and 80 of the *Judiciary Act 1903* (Cth), in conjunction with the allegedly invalid State law, was also a point of contention.

The Court of Appeal, in allowing the appeal in part, determined that the Supreme Court order, being made under legislation incompatible with the exercise of judicial power, was invalid. This invalidity meant that the detention of the plaintiff was unlawful. The court found the State vicariously liable for the unlawful imprisonment of the plaintiff, rejecting any defence based on the purported statutory authority. The reasoning applied drew heavily on the principles established in *Kable v Director of Public Prosecutions (NSW)* [1996] HCA 24; 189 CLR 51, which affirmed that State laws that impair the functioning of State courts in a way that is incompatible with the constitutional concept of judicial power are invalid.

Consequently, the Court of Appeal set aside the orders of the Common Law Division that had dismissed the plaintiff's proceedings against the State and ordered the plaintiff to pay the defendant's costs. Instead, the court entered judgment for the plaintiff against the State for unlawful imprisonment, ordered the State to pay the plaintiff's costs in the Common Law Division, and remitted the matter for assessment of damages. The respondent was also ordered to pay the appellant's costs of the appeal.