FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ
STATE OF NSW APPELLANT
AND
GREGORY WAYNE KABLE RESPONDENT
State of NSW v Kable
[2013] HCA 26
5 June 2013
S352/2012
ORDER
1.Appeal allowed.
2.Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 8 August 2012 and, in their place, order that the appeal to that Court be dismissed with costs.
3.The appellant pay the respondent's costs of the application for special leave to appeal and of the appeal to this Court.
On appeal from the Supreme Court of New South Wales
Representation
M G Sexton SC, Solicitor-General for the State of New South Wales and M J Leeming SC with J E Davidson for the appellant (instructed by Crown Solicitor (NSW))
P W Bates with P G White for the respondent (instructed by Armstrong Legal)
Interveners
J T Gleeson SC, Solicitor-General of the Commonwealth with A M Mitchelmore for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
W Sofronoff QC, Solicitor-General of the State of Queensland with G J D del Villar for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))
S G E McLeish SC, Solicitor-General for the State of Victoria with R J Orr for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)
G R Donaldson SC, Solicitor-General for the State of Western Australia with K H Glancy for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
State of NSW v Kable
Constitutional law – Judicial power – Respondent detained pursuant to order of Supreme Court of New South Wales made under Community Protection Act 1994 (NSW) ("CP Act") – CP Act subsequently held invalid – Respondent sought damages for false imprisonment – Whether order of Supreme Court valid until set aside – Whether order of Supreme Court judicial order.
Torts – False imprisonment – Defences – Lawful authority – Respondent held under order of Supreme Court subsequently set aside – Whether officers of appellant could rely on order made under invalid legislation as lawful authority.
Words and phrases – "judicial order", "lawful authority", "superior court of record", "void ab initio", "void or voidable".
FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL AND KEANE JJ.
The issue
A State Act empowered the State's Supreme Court to order the preventive detention of Gregory Wayne Kable if satisfied that otherwise he would probably commit a serious act of violence. The Supreme Court ordered Mr Kable's detention for six months. After the six months had elapsed, the detention order was set aside on appeal to this Court and the State Act held invalid. Did the detention order provide lawful authority…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
State of New South Wales v Kable [2013] HCA 26
Case
[2013] HCA 26
Decision Date
CaseChat Overview and Summary
The case involved the State of New South Wales as the appellant and Gregory Wayne Kable as the respondent. The dispute concerned damages sought by Mr Kable for false imprisonment, arising from his detention pursuant to an order made by the Supreme Court of New South Wales under the *Community Protection Act 1994* (NSW). This Act was subsequently found to be invalid. The High Court of Australia was required to determine whether the Supreme Court's order provided lawful authority for Mr Kable's detention, despite the invalidity of the underlying legislation.
The central legal issues before the High Court were whether an order made by a superior court of record, such as the Supreme Court of New South Wales, should be treated as valid until set aside, and whether officers of the appellant could rely on such an order as lawful authority for detention, even if the legislation under which it was made was later declared invalid. The Court also considered the nature of judicial power and the effect of decisions made in its exercise within a developed legal system.
The High Court reasoned that in any developed legal system, decisions made in the exercise of judicial power must be given effect, at least until they are set aside or reversed. This principle is fundamental to the operation of the courts and the administration of justice. The Court held that orders of a superior court of record are valid until set aside. If this were not the case, judicial orders would have only provisional effect, creating uncertainty for both individuals affected by the orders and the executive branches of government. The Court concluded that Mr Kable was detained pursuant to an order that was valid during the period of his detention, as it had not been set aside at that time. Therefore, the order provided lawful authority for his detention.
Consequently, the High Court allowed the appeal, setting aside the orders of the Court of Appeal of the Supreme Court of New South Wales. The appeal to that Court was dismissed with costs, and the State of New South Wales was ordered to pay Mr Kable's costs of the application for special leave to appeal and of the appeal to the High Court.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 8 August 2012 and, in their place, order that the appeal to that Court be dismissed with costs.
3. The appellant pay the respondent's costs of the application for special leave to appeal and of the appeal to this Court.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL AND KEANE JJ
GAGELER J
Further, because Mr Kable was detained pursuant to an order that had not been set aside during the period of detention, and remained valid during that time, it is also unnecessary to examine whether, as Mr Kable contended, the Court of Appeal should have held that the State was "directly liable in false imprisonment to [Mr Kable], in addition to being vicariously liable for that tort".Conclusion and orders For these reasons the appeal should be allowed, the orders of the Court of Appeal set aside and in their place there should be orders that the appeal to that Court is dismissed with costs. In accordance with the terms on which special leave to appeal to this Court was granted, the State should pay Mr Kable's costs of the application for special leave to appeal and of the appeal to this Court. Introduction On 23 February 1995, Levine J in the Supreme Court of New South Wales made an order that:"Gregory Wayne Kable be detained in custody for a period of six months commencing 23 February 1995 and expiring 22 August 1995 pursuant to s 9 of the Community Protection Act 1994." The joint reasons for judgment conclude that the order so made provided lawful authority for the State of New South Wales to detain Mr Kable in custody between 23 February 1995 and 22 August 1995. That conclusion is reached notwithstanding the subsequent setting aside of the order by the High Court, on appeal from the Court of Appeal of the Supreme Court of New South Wales, in Kable v Director of Public Prosecutions (NSW) ("Kable (No 1)")[55], on the ground that the Community Protection Act 1994 (NSW) ("the CP Act") was invalid because the purported conferral by the CP Act of jurisdiction on the Supreme Court of New South Wales to make an order of that kind was incompatible with Ch III of the Constitution. [55](1996) 189 CLR 51; [1996] HCA 24. I agree with that conclusion and join in the orders proposed.Precepts Chapter III of the Constitution is framed against certain precepts, both as to the nature of judicial power and as to the essential and permitted characteristics of courts as institutions administering or capable of administering judicial power. The nature of judicial power is that, as a general rule, its exercise is directed to the resolution of a question as to a legal right or a legal obligation between defined persons or classes of persons so as to produce, by a final judicial order, "a new charter by reference to which that question is in future to be decided as between those persons or classes of persons"[56]. Its "unique and essential function … is the quelling of … controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion"[57]. Its "hallmark" is "the making of binding declarations of rights and obligations arising from the operation of the law upon past events or conduct"[58].[56]Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 355 [45]; [1999] HCA 9, quoting R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374; [1970] HCA 8.[57]Harrington v Lowe (1996) 190 CLR 311 at 325; [1996] HCA 8, quoting Fencott v Muller (1983) 152 CLR 570 at 608; [1983] HCA 12.[58]Ha v New South Wales (1997) 189 CLR 465 at 503-504; [1997] HCA 34.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL AND KEANE JJ,
GAGELER J
There is then no occasion to attempt to divide the exercise of jurisdiction by Levine J in the manner considered by Basten JA. The division suggested[53] was between the (valid) exercise of jurisdiction conferred by s 39(2) of the Judiciary Act 1903 (Cth) to hear and determine the question about the validity of the CP Act (as a question arising under the Constitution or involving its interpretation) and the (invalid) exercise of jurisdiction to decide whether to make an order under the CP Act. There being no occasion to consider this division, it is neither necessary nor desirable to examine whether the proceedings conducted by Levine J constituted the hearing and determination of one or more than one "matter", or what may have been the boundaries of the relevant matter or matters.[53](2012) 293 ALR 719 at 757 [151].More fundamental considerations The conclusions reached in these reasons about the effect of the order made by Levine J accord with fundamental considerations about the operation of any developed legal system. There must come a point in any developed legal system where decisions made in the exercise of judicial power are given effect despite the particular decision later being set aside or reversed. That point may be marked in a number of ways. One way in which it is marked, in Australian law, is by treating the orders of a superior court of record as valid until set aside. Were this not so, the exercise of judicial power could yield no adjudication of rights and liabilities to which immediate effect could be given. An order made by a superior court of record would have no more than provisional effect until either the time for appeal or review had elapsed or final appeal or review had occurred. Both the individuals affected by the order, and in this case the Executive, would be required to decide whether to obey the order made by a court which required steps to be taken to the detriment of another. The individuals affected by the order, and here the Executive, would have to choose whether to disobey the order (and run the risk of contempt of court or some other coercive process) or incur tortious liability to the person whose rights and liabilities are affected by the order. In this case, if the detention order made by Levine J was not effective until set aside, those apparently bound by the order were obliged to disobey it, lest they be held responsible for false imprisonment. On Mr Kable's argument, the order was without legal effect and should not have been obeyed. The decision to disobey the order would have required both the individual gaoler and the Executive Government of New South Wales to predict whether this Court would accept what were then novel constitutional arguments. More fundamentally, as the legal philosopher Hans Kelsen wrote[54], "[a] status where everybody is authorized to declare every norm, that is to say, everything which presents itself as a norm, as nul, is almost a status of anarchy".[54]General Theory of Law and State, (1945) at 160.