State of NSW v Kable

[2013] HCATrans 71

Replacement Transcript

[2013] HCATrans 071

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S352 of 2012

B e t w e e n -

STATE OF NSW

Appellant

and

GREGORY WAYNE KABLE

Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 9 APRIL 2013, AT 10.16 AM

Copyright in the High Court of Australia

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friends, MR M.J. LEEMING, SC and MS J.E. DAVIDSON, for the appellant.  (instructed by Crown Solicitor (NSW))

MR P.W. BATES:   May it please the Court, I appear for the respondent, with MS P.G. WHITE.  (instructed by Armstrong Legal)

MR J.T. GLEESON, SC, Solicitor‑General for the Commonwealth of Australia:   May it please the Court, I appear with MS A.M. MITCHELMORE for the Attorney‑General for the Commonwealth intervening.  (instructed by Australian Government Solicitor)

MR W. SOFRONOFF, QC, Solicitor‑General for the State of Queensland:   May it please the Court, I appear with my learned friend, MR G.J.D. del VILLAR, for the Attorney‑General for Queensland intervening.  (instructed by Crown Law – Brisbane)

MR S.G.E. McLEISH, SC, Solicitor‑General for the State of Victoria:   May it please the Court, I appear with my learned friend, MS R.J. ORR, for the Attorney‑General for Victoria intervening.  (instructed by Victorian Government Solicitor)

MR G.R. DONALDSON, SC, Solicitor‑General for the State of Western Australia):  May it please the Court, I appear with my learned friend, MS K.H. GLANCY, for the Attorney‑General of Western Australia intervening.  (instructed by State Solicitor for Western Australia)

FRENCH CJ:   Mr Bates, before I call on the Solicitor‑General for the State of New South Wales, I would just like to draw attention to your notice of contention.  Grounds 2 to 6 of the notice challenge findings of the Court of Appeal in relation to causes of action for malicious prosecution and collateral abuse of process.  The order of the Court of Appeal, which only allowed the appeal against the judgment of Justice Hoeben in part, left intact his Honour’s judgment favourable to the defendants in relation to those causes of action. 

It seems to us that in order to challenge the findings of the Court of Appeal in relation to those causes of action, you would need to raise a cross‑appeal which would require special leave under Order 42.08.4 and would also require the formulation of orders.  Now, if you want to persist with the matters you are raising in grounds 2 to 6, it will be necessary for you to, when it comes to that point, address the Court on why special leave should be granted and also to formulate, I think, a notice of cross‑appeal on proposed orders.

MR BATES:   Thank you, your Honour.

FRENCH CJ:   Yes, all right.  Yes, Mr Solicitor.

MR SEXTON:   If the Court pleases.  Your Honours, there are three matters that we propose to address in our oral submissions.  The first is the character of the orders of Justice Levine; the second is the question of whether there is a defence at common law for those implementing those orders; and, thirdly, any issues arising out of the respondent’s notice of contention.  I propose to deal with the second and third of those matters and Mr Leeming is going to deal with the first question, that is, the character of the orders of Justice Levine.

MR LEEMING:   May it please the Court.  That first matter encompasses grounds 2 and 3 of the notice of appeal and paragraphs 1 to 6 of the appellant’s outline of argument.  The starting proposition, we would say, is that on any view the legal issue that arose before this Court in 1996 in Mr Kable’s appeal is quite different from the legal issue that arises today.  Then, it was a question of some implied restriction on Chapter III subtracting from the legislative power of a State.  Today, it is whether an order that issued from the Supreme Court of New South Wales answered the description of something which denies a tortious action and we would say it is well established, not least by Kruger in this Court, that there is no correlation between limitations on public power and common law actions.  We have no Bivens cause of action in this constitutional system.

Yet, the Court of Appeal, very plainly in the first dispositive part – I think it is paragraphs 2 to 21 of the President’s reasons – treated the reasons of this Court in 1996 as foreclosing all inquiry as to the nature of the order that issued from Justice Levine in 1995 and Justice Basten agreed relevantly.  We say, with great respect, that approach discloses error.  We say it was wrong for the Court of Appeal to refuse to inquire as to what we say is the judicial character of the order that issued from Justice Levine and that error is disclosed by the reliance on the language, often the figurative or colourful language, particularly the language used in relation to a description of detracting from the public confidence of the court that their Honours relied upon, both by the President, and in Justice Basten’s reasons.

Further, it misses what we would say is the well‑established distinction - I might call it the Love distinction - between the character of the power conferred upon the court and whether the exercise of the power is judicial or otherwise.  We would say when one bears in mind that distinction most clearly seen in Love, but followed in decisions of this Court after Kable, including Ousley, but also Coco and Grollo, it is tolerably plain on the reasons of Justice Gaudron and Justice McHugh that their Honours were not saying anything about whether Justice Levine’s act was judicial or otherwise.  It is less plain, candidly acknowledged, in relation to the other two members of the majority in Kable.

So the first thing to do, if I might, is to take this Court to the decision of Love 169 CLR 307 to expose the distinction that we say was central to that decision and which, with respect, was missed in the reasons of the Court of Appeal. In the joint judgment of the Court, after first dealing with a section 109 inconsistency argument, at page 318 turn to expressing the central distinction which, we say, was missed by the Court of Appeal in this case last year. It is the second paragraph on page 318 which begins:

The next question is whether a warrant issued pursuant to the State Act is itself capable of giving rise to any inconsistency –

and your Honours can see about five sentences down, the way the question is framed is that they say:

It is first necessary, in order to consider the operation of the warrant, to determine whether the act of issuing it is judicial or administrative in nature.

If administrative, then the quality of the exercise of power is circumscribed by the statute.  As your Honours know, the Court of Appeal held that this Court’s decision in Kable in 1996 required the characterisation of Justice Levine’s order as administrative and that is fatal because the Act is invalid and so we die.  On the other hand, their Honours say in Love, in the same paragraph:

if the act of issuing a warrant is judicial in nature, then the warrant takes on the attributes of a judicial order.

Those attributes would include giving rise to an absolute immunity on the part of the judicial officer and, relevantly to present purposes we would say, engaging a defence of lawful authority.  So at page 318 the distinction is, we would say, clearly articulated by the joint judgments and then there is analysis of how it works out.  There is, first of all, a distinction that is made at the very bottom of 318, the top of 319, between a judicial Act in what is described as “a loose sense”, that is to say, it is something done by a judicial officer and their Honours are at pains to say that is not the nature, the judicial character of the Act that is going to be sufficient to give rise to the order having the attributes of a judicial order.

There is then an analysis of quite a different thing, the legislation that confers the power upon either the judicial officer or the court.  That starts at about point 4 on page 319 and there is a strong presumption that where the power is conferred upon a court then that gives rise to a power being conferred on the court, as such.  There is then an analysis, starting at 319 in the middle of the page, fitting into the most common case when this sort of analysis happens when a court is being called upon to exercise “the judicial power of the Commonwealth”.  Those cases are summarised for the rest of page 319 and for the whole of page 320.  If I can pass then to the conclusion of that aspect of the analysis to the top of page 321, the point is made in the first full sentence on 321 that where a:

power is conferred upon the court –

or on judges –

No doubt the legislature intended that the power would be exercised in a judicial manner –

and that is an indicium that feeds into the characterisation of the power that is conferred upon the court.  Then we would say, to make it clear beyond all doubt, that there is a distinction between the nature of the power conferred upon the court and the relevant ultimate characterisation, the act of exercising that power - in this case, the act of issuing the warrant.  One has the second full paragraph on 321:

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

Now, that is dispositive and central and essential to the reasoning and in a way it exposes what we say, with respect, is the error revealed in the Court of Appeal, because translating that distinction to the facts of Kable, accepting as we do that the Act was invalid and the character of the function purportedly conferred by the Community Protection Act is not judicial, that does not preclude an inquiry as to whether when Justice Levine was hearing over 13 days contested argument, cross‑examination of witnesses, two Queen’s Counsel, submissions on law, submissions on orders, whether his act ultimately resulting in an order sending Mr Kable to gaol, whether that was judicial so as to give rise to the usual consequences of a judicial Act.

So their Honours in Love then, having dealt with statute, return to the character of the Act and your Honours can see in the bottom paragraph on 321 it was held that:

the exercise of the power –

to grant a warrant in that case -

is essentially administrative in nature.  The warrant is the outcome of a complaint upon which the judge must bring his or her judicial mind to bear and decide on the material before him or her whether the warrant should issue.

Now, that is saying, yes, of course, it is conferred upon a judge.  That is that loose sense of a judicial act and that does not foreclose a conclusion that nonetheless it was not a judicial order.  That is the point that their Honours were making in the last three lines on page 321.  But contrast the order in Love to what is then said at the top of page 322.  In Love it “is not an order inter partes” obviously not to warrant.  Of course, the debate over 13 days before Justice Levine was characterised, we would say, as an order inter partes and there was a right of appeal which was exercised to the Court of Appeal and then to this Court, and then they say:

To adapt the language used in Hilton v. Wells, under s. 16 a judge makes no order and nothing that he or she does is enforced as an order of the court.

We would say, yes, that is certainly true of Love, but applies squarely to what Justice Levine did in February 1995.  Having set out the distinction, can I raise for the Court’s consideration the last full paragraph on page 322 where we say, with great respect, a similar error of reasoning seems to have been committed by the appellants in argument by reference to Murphy v The Queen.  Their Honours say that although there were comments in Murphy v The Queen that tended:

to support the view that a warrant issued under the State Act [was] a judicial order, the precise issue –

was not raised and therefore those comments do not dictate it.  That is something this Court has repeatedly reminded counsel, most recently earlier this year in Pompano.  There is no need to go there, but can I give your Honours a reference to Condon v Pompano [2013] HCA 7 at paragraph 137 where four of your Honours referred by reference to what Judge Henry had said about the domino effect of taking phrases or propositions in reasons and applying them in different contexts. Two other references where that occurred and, again, no need to go there, is Applicant VEAL of 2002 v Minister 225 CLR 88 at paragraph 16, where this Court said:

Examining sentences, or parts of sentences, in isolation from the context is apt to lead to error.

The same point is made in Phillips v The Queen (2006) 225 CLR 303 at paragraph 62. What I want to do now is go to that first portion of the reasons of Justice Allsop in the Court of Appeal in volume 2 of the appeal book at page 512 and particularly at paragraphs 3 and 4 where on any fair reading one can see that reference to particular phrases in the reasons of this Court in Kable’s Case in 1996 were held to preclude the inquiry that we say was the proper inquiry to be undertaken.

If your Honours were to go to page 513, there are a few pages from the reasons for judgment of the four majority Judges in Kable set out, but the ones to which his Honour the President placed particular reliance were Justice Toohey at page 98 - reference to the “extraordinary character” of the Act and also the diminishing of public confidence in the integrity of the judiciary as an institution; Justice Gaudron at 106 and 108, and again metaphorical language about dressing up, antithesis of the judicial process and making a mockery of the judicial process; Justice McHugh at 122; and Justice Gummow at 132.

As your Honours can see in paragraph 4, that was regarded as “determinative of the character” of Justice Levine’s order and at the conclusion of this aspect of his Honour’s reasons at paragraph 17 on page 518, your Honours can see that the President took the view that the inquiry that I am asking the Court to undertake as to whether Justice Levine’s orders were an act of a judicial character, whether the orders were judicial orders, was regarded by the President as one that was not open to the Court to undertake.  For completeness, Justice Basten’s reasons are of the same tenor.  At page 572, paragraph 153, is the paragraph where his Honour says:

Any contrary conclusion would contradict the findings of the High Court in Kable . . . it is not open to this Court to conclude that the detention order was otherwise than an invalid non‑judicial order.

Having exposed, I hope, the essential aspects of the first element of the Court of Appeal’s reason ‑ ‑ ‑

FRENCH CJ:   Was that contrary conclusion – was it contrary to what he said in paragraph 152 or is he speaking more widely than that?

MR LEEMING:   We would read it as reinforcing what is said in 152.

FRENCH CJ:   Because it seems to be linked there to the fact that the court was exercising federal jurisdiction.

MR LEEMING:   I accept completely what your Honour says, but on a fair reading we would say 153 goes beyond it and says that that area is verboten.

HAYNE J:   Just before you part from the President’s reasons at 512, paragraph 3, the sentence commencing last on that page, “The essential reasoning”, that is at line 51.

MR LEEMING:   I have it, your Honour.

HAYNE J:   I would understand your argument to be that that sentence contains an inversion, that there was invalidity of the Community Protection Act because the Supreme Court was asked, or required, more accurately, to act institutionally as a court in a task of a kind which the court should not have been given.

MR LEEMING:   I agree with your Honour and I go further and say it is, with respect to his Honour, very difficult in the four divergent strands of reasoning of the majority Judges in Kable to identify anything that satisfies the description of the essential reasons.  Two of them expressly rely upon federal jurisdiction.  There are different degrees to which public confidence, in the sense then expressed, different from the sense expressed in Fardon, public confidence in the court as opposed to public confidence in the institution, are framed in the language. 

It is revealing, if I may say so, that the language of the reasons of Justices Gaudron and McHugh who, on a fair reading, placed greatest weight on something which has largely been either discredited or certainly diminished, the public confidence in the court aspects, that is the language which is most colourful and most emotive and relied upon by my learned friends and by the Court of Appeal. 

That serves to emphasise the difficulty further in trying to isolate what is essential to the reasoning of four judges who, as it turned out, formed a majority which obviously binds us in this Court.  There is no dispute about the dispositive effect of the appeal but all of the cautions in VEAL and Pompano are heightened when one has reasons from constituent members, all of whose reasons, without any criticism to any of them, are divergent in reaching that conclusion in a new developing area of the law.

HAYNE J:   But the incompatibility which brought the Act down was that the Supreme Court of New South Wales was being required to act as a court judicially in the narrow sense rather than in the broader, looser sense you have spoken - or identified by reference to Love ‑ ‑ ‑

MR LEEMING:   Yes, your Honour.

HAYNE J:   ‑ ‑ ‑ in making the orders, which it did, orders which were subject to appeal and the like. 

MR LEEMING:   Exactly so.  So having identified the words ‑ ‑ ‑

FRENCH CJ:   Does that equate to saying that it is a case of a function conferred upon the Supreme Court which, even if judicial in character, was incompatible with the requirements of a court susceptible to the investiture of Chapter III jurisdiction.

MR LEEMING:   One can call it the conferral of a power or conferral of a function, but the essential distinction is between the legislative incapacity to confer that functional power as opposed to the exercise by the donee of that power or the repository of that function - I think both languages used in Kable.

FRENCH CJ:   The characterisation of the function does not matter to the judgment of incompatibility?

MR LEEMING:   I would not say it is wholly irrelevant.  I do not go that far.

FRENCH CJ:   But in the end, it is not critical, is it?

MR LEEMING:   Absolutely, it is not preclusive and that is the error and so having established error I then need to persuade your Honours that, nonetheless, it is open to inquire and when the inquiry is undertaken Justice Levine’s order was judicial and picks up the attributes of a judicial order.  That is the essence of this first half of the appeal.

So can I seek to make good what I said particularly about Justices Gaudron and McHugh in Kable’s Case 189 CLR 51, to seek to make good that not on some narrow very precise extracting phrases from the reasons, but looking at them fairly in their essence their Honours are very much alive to the distinction between the legislative incapacity to confer the power or function and the Act exercised by the judge – exercised in a judicial way.

Can I deal with Justice Gaudron’s reasons first.  Throughout the whole of the reasons of the four members of the majority of the Court, one will find, and understandably so because of the way Sir Maurice Byers put the argument and for perfectly proper reasons, focus upon the character of the Act, the nature of the function conferred by the Act because the argument was the Act was ‑ ‑ ‑

FRENCH CJ:   His primary argument was it was not a law.

MR LEEMING:   That was one of the arguments.  I am focusing merely upon the argument that succeeded, but certainly that was an argument that was put, and it is quite plain, most plain perhaps from what was said expressly by Justice McHugh at 123 that I will come to that there was no criticism whatsoever, nor could there be, of the way in which Justice Levine performed his function judicially, to put it bluntly, under this Act.

But to start with Justice Gaudron’s reasons, the aspect of the reasons that mattered really starts at page 104 in 189 CLR and her Honour has articulated that the test that your Honour the Chief Justice referred me to – incompatibility – and then the analysis begins at about point 3 in the second full paragraph on 104:

It remains to be considered whether the power purportedly conferred on the Supreme Court by s 5(1) of the Act is repugnant to or incompatible with the exercise of the judicial power of the Commonwealth.

Her Honour then sets out extracts from the provisions of the Act and because it comes up later can I draw your Honours’ attention to what was said in section 14 at 105 at about lines 5 and 6, that is to say, the hearing contemplated by the Act before a judge of the Supreme Court was:

to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings” -

but with some modifications which her Honour regarded as significant which are set out in 17(1) and 17(3) on that page, namely some evidence was required to be received, in particular in 17(3).  Then if one turns to 106 to 108, which are the pages particularly relied upon by his Honour the President, the first full paragraph on 106 picks up the metaphorical language to which I have referred:

The proceedings which the Act contemplates are not proceedings otherwise known to the law.

It might be thought that is focusing not so much the conferral of the power but the ultimate proceedings that are going to be conducted pursuant to it.  Likewise too, the dressing them up as legal proceedings:

not in any way partake of the nature of legal proceedings.

Nonetheless, when one turns to the second paragraph on that page, “It is well settled”, the reference in the last sentence of that paragraph is to powers conferred by Parliaments.  Her Honour says:

there is nothing to prevent the Parliaments of the States from conferring powers on their courts which are wholly non‑judicial, so long as they are not repugnant to or inconsistent with the exercise by those courts of the judicial power of the Commonwealth.

Then there is a reference to:

The power purportedly conferred by s 5(1) of the Act requires the making of an order –

in certain circumstances –

That is the antithesis of the judicial process –

On a fair reading, that is a reference to the power conferred by the Act, not the exercise of that power by the judge.  If that perhaps seems a tight narrow distinction on the language that her Honour used, it is made plain by what her Honour goes on to say at the top of page 107, in the concluding sentence in that paragraph:

It is not a power that is properly characterised as a judicial function, notwithstanding that it is purportedly conferred on a court and its exercise is conditioned in terms usually associated with the judicial process.

It is easy to see how one can slide between the nature of the power being conferred and the exercise of that power that, as Love shows, that is the important distinction when the question arises, what is the nature of the order that emerges?  Again, when her Honour goes on at 108 to refer to the metaphors of “dressing up” proceedings, again her Honour at that stage is referring to what the Act does and so that is a reference to the power purportedly conferred by the Act upon the court, not the order that emerges from the court as a result of the exercise of that power.

It is clearer, if I may say so, when one turns to the reasons of Justice McHugh.  Those reasons can be seen – they follow the same course.  There is a summary of the impugned legislation leading up to page 122 which I will not take the Court to, but at page 122 after setting out that summary at the middle of the page his Honour says:

The Act is thus far removed from the ordinary incidents of the judicial process.  It invests the Supreme Court with a jurisdiction that is purely executive –

Again, that is referring to the nature of the power that is conferred upon the Supreme Court, not its exercise.  It might be thought – it might be said against me that although focused upon the exercise of power is nevertheless carrying over and attracting some character to the exercise of the power, but we would say, with respect, that when one reads page 123 and the concluding paragraph on that page:

No one who has read the lengthy and anxious judgment of Levine J making the order imprisoning the appellant or the judgments of the judges of the Court of Appeal upholding that order or the judgment of Grove J refusing to make a further order against the appellant could doubt their independence and impartiality in administering the law.

There was no suggestion throughout any of the appeal that they were doing otherwise than acting judicially.  The judgments of Justice Levine and the Court of Appeal demonstrate the order against the appellant was made and upheld only because of the object of the Act, the evidence and the methods.  Then his Honour goes on to make ‑ ‑ ‑

FRENCH CJ:   How does a power, executive in nature, give rise to an order characterised as judicial?  Is it because it is made by a court following judicial process?  Is that as ‑ ‑ ‑

MR LEEMING:   Yes, exactly so.

FRENCH CJ:   Is that then just a matter of labelling, by reference to that?

MR LEEMING:   In a sense, it is a very unfortunate and oxymoronic labelling.  It is a labelling that is recognised by the judgment of this Court in Murphy’s Case and if one takes as one of the bedrocks in Chapter III jurisprudence that one can have a committal function which is non‑judicial, but is nonetheless part of the same Chapter III matter, and if the magistrate decides not to commit there never will be a conventional exercise of judicial power in the adjudication of criminal innocence or guilt of the accused, nonetheless, it is held part of the same matter, the subject of a section 77 investiture into a local court of New South Wales.  It is that difficulty in language that makes it very important, we would say, with respect, to be very precise about the reasoning expressed in the strands of the four judgments in Kable’s Case, but his Honour Justice McHugh ‑ ‑ ‑

CRENNAN J:   Is it an essential consideration that the courts of which you speak are superior courts of record?

MR LEEMING:   Not for the purpose of the distinction that I am drawing.

CRENNAN J:   No.

MR LEEMING:   That is the short answer, your Honour.  Justice McHugh not merely distinguishes, we would say, between the character of the power and its exercise in abstract terms but in a way that is clear beyond doubt in a temporal way.  That can be seen from the last sentence of 123 following what his Honour has said about the way in which Justice Levine exercised the function or power conferred by the Community Protection Act by the timing at which invalidity was to be assessed.  His Honour says:

the constitutional validity of the Act cannot depend on how the judges of the Supreme Court discharge the duty that the Act imposes upon them.  The Act was either valid or invalid when it was given the Royal Assent.

We say nothing could be clearer than those two sentences to explain that his Honour was dealing about the purported conferral of power not the anxious exercise of that power by Justice Levine.

So that is why we say, with respect, it is quite wrong for the Court of Appeal to have foreclosed to itself the critical inquiry of whether the Act was judicial.  In fact, his Honour does not need to decide it but it is certainly consistent with his reasons that Justice Levine’s exercise of power was a judicial Act.  I am candid enough to say that the reasons of the two other members of the majority who expressly referred to federal jurisdiction are not quite so clear as Justice Gaudron and Justice McHugh.

If one turns to Justice Toohey, one sees with all them a focus upon the nature of the Act.  One sees a conclusion that the Act itself is beyond the legislative power of the State of New South Wales and that is sufficient, we would say, to render erroneous an approach that says we cannot even inquire whether Justice Levine’s order was a judicial Act.  If I turn to Justice Toohey’s reasons, the page that is relied upon by the court below is page 98.  That is preceded by a series of paragraphs focusing attention on the character of the Act that your Honours can see at the bottom of 96 and all through page 97, but if one turns to the page upon which reliance is placed, which is 98, at about eight lines down, again what Justice Toohey says:

In the present case the Act requires the Supreme Court to exercise the judicial power of the Commonwealth in a manner which is inconsistent with traditional judicial process.

Well, that is an ambiguous phrase and it might well be said on a fair reading that does extend to a statement about the nature of the exercise of power, but on a fair reading of the reasons which focus merely upon the legislative incapacity, one then returns to what is conferred by the Act.

FRENCH CJ:   Does anything turn on the question whether on the fact that before Justice Levine there was a constitutional challenge?  Let us suppose no constitutional challenge had been raised at that level.

MR LEEMING:   Your Honour, yes, it does, and I want to do two things.  I want to first of all explain that the argument that we propound before this Court withstands the injection of federal jurisdiction and undoubtedly the Supreme Court and the Court of Appeal, and also Justice Hunter and Justice Spender before Justice Levine, were all exercising federal jurisdiction because of the defences that were raised, which were preliminary defences in a sense. 

So, yes, that turns upon it and, yes, also I need to grapple with the reasons of Justice Gummow because his Honour poses as a hypothetical what if no constitutional point had been raised by those acting for Mr Kable, and his Honour has reasons and says in that case there would not have been a judicial order and no appeal would lie to this Court under section 73.

FRENCH CJ:   A supervisory jurisdiction exercise and then absent ‑ ‑ ‑

MR LEEMING:   Well, his Honour did not have the advantage of Kirk, but if any reasons do, in terms, extend to expressing a considered view about whether the order exercised by Justice Levine had no federal jurisdiction point been invoked be non‑judicial, Justice Gummow’s reasons do go that far.  Now, it is a hypothetical and it did not arise because federal jurisdiction had been engaged.

In a sense, it does not matter.  The essential point, we say, is whether the Court of Appeal was right to say we could not even inquire as to whether the Act was judicial, and if your Honours are with me on the proposition that that is in the teeth of what at least Justice Gaudron and Justice McHugh said, then there is error in not undertaking that inquiry.

GAGELER J:   You say your argument withstands the injection of federal jurisdiction.  It is not clear to me whether your argument depends on the existence of federal jurisdiction.

MR LEEMING:   I should make it clear.  It does not depend upon federal jurisdiction.  I go further and say although there was federal jurisdiction, nonetheless it is wholly consistent with well‑acknowledged authorities of this Court to have this distinction between the exercise of the judicial power of the Commonwealth by a court invested with federal jurisdiction and a non‑judicial function, and that is Murphy’s Case, but it is not necessary to my argument whatsoever.

Can I deal with that immediately?  Can I ask the Court to turn to the unanimous decision of Murphy v The Queen 158 CLR 596 for two passages only? The question there concerns the separate committal of the respondent and, as framed at page 613, there were four propositions raised in the large paragraph halfway down the page of which the second and third matter – the second proposition was that:

in exercising jurisdiction in committal proceedings the function of a court . . . is non‑judicial and does not involve an exercise of the judicial power of the Commonwealth –

and then –

that the power conferred by s. 77(iii) . . . does not extend to imposing –

such a function “on State courts”.  Murphy’s Case most famously stands for the proposition that one can have the same matter in two separate courts, but it is for a slightly different proposition.  It is the oxymoronic proposition that your Honour the Chief Justice raised with me that I particularly want to draw attention to because at page 614 their Honours say that:

the relationship between committal proceedings and the trial of an indictable offence is such that they are part of the matter which the trial ultimately determines, we are also, perhaps necessarily, of the view that the relationship is such that to make provision for the conduct of committal proceedings is incidental to the investing of a State court with jurisdiction to try an indictable offence against a law of the Commonwealth.  It may be that the first limb of the incidental power contained in s. 51(xxxix) would support the validity of s. 68(2)(b), although s. 77(iii) alone would confer sufficient power.

So their Honours are saying in unambiguous terms, put to one side the incidental power, because the committal proceedings are part of the same matter, section 77 suffices to confer power on the local court to hear and determine the committal.  If I can then pass to page 616, the large paragraph on this page is why we say, with respect, no aspect of this submission collides in any way with the injection of federal jurisdiction that occurred as soon as Mr Kable’s then representatives said the Act was unconstitutional.  At page 616 at about line 10, their Honours say:

As we have already mentioned, it has been said that the function of a court in deciding whether a person charged should or should not be committed for trial is non‑judicial.

Here one has a non‑judicial function that is part of the same Chapter III matter that is the subject of a 77 investment and it is odd if you put that language together but it ought not be surprising that with concepts as amorphous, and properly so, as judicial power and expressed in the high level that they are in Chapter III that, when one frames these propositions together, that one does have some results that sound superficially unattractive.

GAGELER J:   But is not the answer at page 614 point 5 that here you have a power that is itself non‑judicial but it is incidental to a judicial function?

MR LEEMING:   I accept completely that could be an answer.  That is not an answer, with respect, that the Court is giving in Murphy’s Case.  It comes down to the “perhaps” word that your Honour can see at about line 10 on page 614.  Their Honours certainly expressed the view that what just fell from your Honour Justice Gageler is an analysis and when they say, “perhaps” necessarily they are flagging the possibility that perhaps the only way of reconciling this is to say the committal falls within the incidental power, but the way that they have framed it, as it is - although that is flagging a development for the future, it was not necessary for them to determine for the purpose of the case - is that even this non‑judicial function falls within the Chapter III matter, otherwise there would be no force in the word “perhaps”.

GAGELER J:   “Even this incidental function falls within the Chapter III matter” is another way of putting it.

MR LEEMING:   That is so.  What their Honours then go on to say in page 616 is that one certainly looks at history and history is obviously dead against me in terms of the Community Protection Act, but one also looks at the way in which the non‑judicial committal function is exercised.  This, on a fair reading, we would say, is the gravamen of the reasoning why their Honours disagreed with what Sir Samuel Griffith said in Huddart, Parker & Co v Moorehead.  Back in that large paragraph on page 616, rejecting what Chief Justice Griffith said about a committal not involving the exercise of judicial power, one sees reference to the incidents that occurred in 13 days in 1995 before Justice Levine.  Their Honours say that the committal proceedings:

have a distinctive judicial character because they are curial proceedings in which the magistrate or justices constituting the court is or are bound to act judicially and because they affect the interests of the person charged –

because, in short, there is a hearing in open court.  So even though they are properly to be regarded as non‑judicial in character, then one has further reference to the incidental aspects that your Honour Justice Gageler has referred to because they precede, and necessarily precede, the trial on indictment of an offence.  So there are two strands in the reasoning.  One is the relationship to what unquestionably is a judicial function of determining innocence or guilt under a federal offence, but also there is the judicial character of the proceedings referred to in the middle of page 616. 

Now, none of this is necessary to the argument, I am at pains to say, but if one accepts that magistrates exercising a committal function prior to the filing of an indictment for a Commonwealth offence are acting judicially with the usual incidents of the judicial process - representation, openings, testing of evidence, cross‑examination, submissions, legal argument, factual argument - then – and they can do so, exercising what, on any view, is a non‑judicial function - that translates, we would say, quite directly to what happened before Justice Levine where senior counsel represented Mr Kable, where there was an opening, where evidence was led, where there was cross‑examination, where there were written and oral submissions, where there was a 78B notice that issued, where there was an order that then took effect as an order of the court and from which an appeal lay. 

We have added in our outline and in our written submissions reference to Mellifont the fact that that order was treated not as an order which was non‑judicial that could not give rise to a section 73 appeal to this Court, but which was treated in the reasons of this Court in 1996 for something that had to be set aside. 

We would say, for those reasons, it attracts exactly the qualities of the order of the Federal Court that this Court held in Macks and we have given your Honours the references to the various paragraphs in Re Macks in paragraph 22 of our submissions to the effect that an order made by a superior court pursuant to a statute that contravenes an implied restriction in Chapter III nonetheless has force if it is a judicial order and this is one of those.

GAGELER J:   What is the proposition that you draw from Murphy?

MR LEEMING:   From Murphy that a non‑judicial function, nonetheless part of the same ChapterIII matter, is the subject of a section 77 investment of federal jurisdiction and is resolved by the exercise of judicial power.

GAGELER J:   Does that extend to the proposition that section 77 permits the conferral of non‑judicial functions on a Chapter III court?

MR LEEMING:   In a Chapter III court, including a State court - I say nothing about a federal court.  I am focusing – all I am seeking to draw is propositions that deal with State courts.  I am not sure if that is a full answer to your Honour’s question.

GAGELER J:   No, it is not.

MR LEEMING:   Can I give a fuller answer to your Honour’s question?  It is plain that a committal is non‑judicial, is a non‑judicial function.  We would say also that it is plain, from what one gets from page 616, that the manner in which a committal is determined is judicially by someone in open court receiving evidence, having it tested in the usual way, forming a judicial expression of opinion.  The ratio of Murphy is that that magistrate exercising the non‑judicial committal function is nonetheless determining part of the same Chapter III matter, and so this notion of Chapter III matters must be broad enough to include functions that are non‑judicial.

Now, this is an add‑on to the argument - it is not essential to anything that we say - but it is not a bad test, we would say, of the ruggedness of the argument because Justice Levine, we say, was exercising federal jurisdiction and one order, one order alone quelled the Chapter III matter that was a Chapter III matter as soon as Mr Kable’s representatives claimed that the Community Protection Act was invalid. 

So if one turns to volume 1 of the appeal book this is set out in more detail in our written submissions.  At page 427 in volume 1 one has the only order that emerged after the 13‑day hearing in 1995 on 23 February.  There is an error on page 428.  It should be 23 February 1995.  That same order, as we say in our written submissions, reflected three things.  First of all, there was an implied determination that the judge had jurisdiction to adjudicate the proceedings that had been brought before him.  Secondly it was a rejection, as it turns out wrongly, of the claim that the Community Protection Act was invalid, and that can only be an exercise of the judicial power of the Commonwealth, and thirdly this order was the thing that required, under sanction of contempt, the sheriff and the officers of the Corrective Services Department to take Mr Kable and detain him in gaol.

Obviously that order should not have been made with the benefit of hindsight, but the analysis that I have sought to give we would say accommodates the proposition that although this Court has held that the function purportedly conferred by the Act was non‑judicial, there is no difficulty in saying that nonetheless Justice Levine was acting judicially when determining he had jurisdiction – when determining wrongly that the Act was valid and in exercising the power of detaining Mr Kable.

Unless there is some other aspect in which I can assist your Honours, that is all I would wish to say on grounds 2 and 3 of the notice of appeal.  May it please the Court.

FRENCH CJ:   Thank you, Mr Leeming.  Yes, Mr Solicitor.

MR SEXTON:   If the Court pleases.  Your Honours will appreciate that if the arguments that are being put by Mr Leeming be accepted then your Honours do not need to get to the question of whether there is a common law defence available for those who implemented the order of Justice Levine.  We say that whatever the status of the order that was made by Justice Levine, about which Mr Leeming has addressed your Honours, prior to it being set aside the common law provides protection from tortious liability for those acting in accordance with the court order. 

It is the actions of those persons in this case that have resulted in vicarious liability on the part of the State, according to the Court of Appeal, and it can be accepted, we would say, that there could be no liability on the part of the State, in the absence of some liability on the part of its employees – we do not need to take your Honours to it but Haskins v The Commonwealth (2011) 244 CLR 22 at paragraph 43 of the majority’s judgment in which there is really an echo of Justice Windeyer’s comments in Parker in 1965.

It can be conceded that the ambit of common law protection in this area is not defined in the authorities, of course, largely by reference to unconstitutional statutes.  One reason for this is that a majority of those authorities are decisions of English courts and the kind of constitutional invalidity that arose in Kable could not occur in England.  There are, we would say, sound reasons in public policy why the protection should apply to any order of a superior court, given the difficulties that any other doctrine would pose for persons in the position of sheriffs, prison officers, et cetera, as well as for the institutional role of a State Supreme Court in relation to the administration of justice.

No one of the authorities really provides a sharp answer to this particular question but there is, we would say, an overall assumption running through the authorities that protection is available to those implementing the orders of at least superior courts and in some cases perhaps inferior courts as well.

HAYNE J:   Well, it may be necessary, may it not, Mr Solicitor, to distinguish between the superior and the inferior courts, at least to this extent?  First, are the submissions that you are making submissions in fact, if you like, about the law of tort, that is, whether you have a lawful excuse to an action for assault, false imprisonment or the like constituted by - called a defence of lawful excuse constituted by a court’s order?  I think your submissions amount to that kind of analysis, do they not?

MR SEXTON:   Yes, they do, yes.  When I said we do not have to deal here with the question of inferior courts, some of the authorities do in part.

HAYNE J:   Well, then there may, there may not be questions intruded if you are dealing with an order of an inferior court about when and in what circumstances you may make a collateral attack upon that order, and those are questions which I would have thought, perhaps I am wrong, are not questions that we would need to grapple with in this case because the orders are orders of a superior court, but you cast your submissions as submissions about protection.  I suspect they are submissions about the ambit of a defence to an otherwise concluded case or a case in which elements of the tort are otherwise made out.

MR SEXTON:   I think that is right, your Honour, and whether the correct term is “defence” or “immunity” - that is right, but in a sense it is an excuse for liability that would otherwise attach a tort.

FRENCH CJ:   You say justification extends to compliance with an apparently valid order of a superior court.

MR SEXTON:   Yes, your Honour, unless and until it is set aside.  Can I mention two cases in this Court which touch on this subject, although not in a specific sense in relation perhaps to this case, but Commissioner for Railways v Cavanough (1935) 53 CLR 220, where the Court held that a conviction later quashed meant that the respondent could not be considered to have ever been convicted in the first place, but the majority noted at 225 that:

Acts done according to the exigency of a judicial order –

I appreciate that is a judicial order –

afterwards reversed are protected:  they are “acts done in the execution of justice, which are compulsive” –

Justice Starke, who wrote a separate judgment, noted at 227 that although the conviction had been set aside:

It is true that anyone who acts in execution of a judgment may justify under it, notwithstanding its removal, reversal or annulment, for it was good when given.

The second decision is Posner v Collector for Inter‑State Destitute Persons (1946) 74 CLR 461 where an order for imprisonment and the payment of moneys was made against Mr Posner by the Melbourne Court of Petty Sessions on the basis of a Western Australia court order that was conceded by the Victorian court to be a nullity because Mr Posner had not been served with any process and had had no notice of the proceedings in Western Australia.

Chief Justice Latham considered at 471 that the Western Australian court had jurisdiction to deal with the case and, accordingly, its order was no nullity, but it was “good until it is set aside in proper proceedings”.  Justice Starke said at 476 that where an inferior court in this case had exceeded its jurisdiction “an officer executing and obeying such process is protected”.  He added at 477 that:

orders in a superior court of record cannot be ignored and treated as of no effect or operation in law.

Justice Dixon at 482 referred to the absence of liability on the part of the sheriff enforcing “process from a Superior Court” and added at 483 that:

Modern legislation does not favour the invalidation [even] of orders of magistrates or other inferior judicial tribunals . . .until they are set aside –

Justice Williams was in dissent but noted at 489 that, “An order of a superior court is never void, but only voidable”.  There is one English case that I should take your Honours to which is Sirros v Moore [1975] 1 QB 118 where Mr Sirros who, when bringing an immigration appeal to the Crown Court, was walking out court and the trial judge sent the police after him to bring him back. It was later conceded that he was not in custody at the time and there was no basis for him to be taken into custody.

In many ways it is a case about judicial immunity, but Lord Denning noted at 137 that the police officers who apprehended and detained Mr Sirros were protected because they did so at the direction of the judge and in his view the judge here had a bona fide belief that he had jurisdiction to do what he had done, although it turned out to be incorrect.

Lord Justice Buckley noted at 144 that the police officers who detained Mr Sirros did so on “the instructions of the judge” and considered that they “were justified in acting under his authority”.  Lord Justice Ormrod did not refer to the police officers.  He referred to the question of judicial immunity, but it can be taken that he assumed that the police officers were in the position that had been set out by Lord Denning and by Lord Justice Buckley.

FRENCH CJ:   Is something said about Sirros later in Evans?

MR SEXTON:   Evans?

FRENCH CJ:   Yes.  I just have a feeling it was reflected upon.

MR SEXTON:   This is Evans ‑ ‑ ‑

FRENCH CJ:   Evans v Brockhill – it is the 2001 Appeal Cases, a decision of the House of Lords.

MR SEXTON:   I do not have it here, your Honour.  I will get someone to look.

FRENCH CJ:   Just a minute, I will give you the reference.

MR SEXTON:   I will not take your Honours to Robertson in the Full Court of the Supreme Court of Western Australia (1997) 92 A Crim R 115 where the position of a prison superintendent who detained Mr Robertson for some days beyond the date on which he should have been released on parole because the relevant warrant did not accurately reflect the order made by the sentencing magistrate and the Full Court held in that case that it would be extraordinary to impose liability on the prison officer for enforcing an invalid order when the person who issued the order – in this case the magistrate – was not liable. Justice Steytler found at 125 that the order:

was required to be obeyed by the prison authorities until discharged by a court of competent jurisdiction.

Your Honours, if the defence of lawful justification was not available to officers in the position of those who detained the respondent in obedience to Justice Levine’s order, we say they would be placed in a very difficult or perhaps even impossible position.  They had no realistic way of satisfying themselves of the constitutional status of what appeared to be a proper order of the Supreme Court.

After the Court of Appeal in New South Wales dismissed the respondent’s appeal from the order of Justice Levine, which was made in May 1995, the application for special leave was not determined until 18 August 1995, four days before the order of Justice Levine expired.  The officers had no discretion to release the respondent themselves.  He could only be released when Justice Levine’s order expired unless the Supreme Court or this Court made a further order, and had the relevant officers

released him prior to 22 August 1995 they would have risked being found in contempt of Justice Levine’s order.

So if the basis for the defence or immunity or justification of those acting at the direction of judges of superior courts is essentially founded on public policy, as we say it is, there is no reason why it should not exist, whatever the nature of the superior court’s order, even assuming for the moment, and contrary to what Mr Leeming has put, that some orders of a superior court could be characterised as administrative rather than judicial.  It is not easy, however, to think of an example of an order of a superior court perhaps that could be characterised as administrative rather than judicial.

HAYNE J:   What about the giving of private advice to trustees?

MR SEXTON:   It might be an example, your Honour.  I was just going to say that in the case of those examples in the cases, in Grollo, for example, telephone interception warrants, and Ousley, surveillance device warrants, listening device warrants, what the court does is to authorise the procedure but it does not order it to take place.  It may be possible, your Honour, to think of examples, but it is not easy, in our submission.  Now, your Honours, can I just say something briefly about the notice of contention and noting – I am told that there is no reference to Sirros in Evans, your Honour.

FRENCH CJ:   Yes, thank you.

MR SEXTON:   Taking into account what your Honour the Chief Justice said about the notice of contention, but just treating them for the moment as potential grounds of cross‑appeal ‑ ‑ ‑

FRENCH CJ:   It might be best if we were to hear you, I think, in reply on that.

MR SEXTON:   I was going to say I can do that in reply or now, but if that is going to wait for reply, that is our submissions in‑chief, your Honour.

FRENCH CJ:   Thank you.  Solicitor‑General for the Commonwealth.

MR GLEESON:   Your Honours, the Attorney‑General for the Commonwealth wishes to make oral submissions on the first of the three issues identified by Mr Sexton.  Your Honours will see from the written submissions and from the oral outline the substance of those submissions is very similar to that put by Mr Leeming.  We respectfully adopt what he has put orally, subject to two matters of qualification that I will come to, neither of which affects the substance of his argument.

On the first broad question, we adopt his submissions that the Court of Appeal has mischaracterised what Kable decided in 1995 and the critical error does emerge in paragraph 3 of the President’s judgment where what he has left out is that the essence of the decision was that the Act was invalid for a particular reason, namely, it gave a task to the court as a court which, even if carried out with the usual features of judicial process, would still be incompatible with the function of a court under Chapter III.

I would refer the Court to what a number of members of the Court said in Pompano [2013] HCA 7 at 128 to 129 which referred to the various strands of the reasoning in Kable which identified that the conclusion came from a consideration of the Act as a whole but, importantly, recognised at the end of paragraph 129 that one of the essential features that caused the invalidity of the Act was its attempt to conscript the Supreme Court – I would respectfully interpolate to conscript the Supreme Court to act as a court so as to procure the imprisonment of a named person without a finding of guilt under a criminal trial in a manner which Chapter III did not permit.

Accordingly, as Mr Leeming has submitted, Kable did not address the question in this case which is the characterisation of the task which Justice Levine carried out expressly and necessarily impliedly, nor with the character of his order. Your Honours, from paragraph 3 of our note, could I take further one point that Mr Leeming mentioned which is that there are two features of Kable which are consistent with the orders being made in the exercise of judicial power both at first instance and on appeal.

The first feature was that the court accepted jurisdiction in a section 73 appeal, for that purpose accepted that there was a relevant order.  The order was the order of the Court of Appeal dismissing the appeal from Justice Levine’s order – that is volume 2, page 450 – and the matter in which each of the section 73 appeal, the Court of Appeal proceedings and the Justice Levine proceedings, was the same matter.  It is difficult to see how there could have been a section 73 appeal if, in truth, Justice Levine solely engaged in an administrative process producing an administrative order.

For the second point, could I ask your Honours to go back to Kable 189 CLR 51 in the judgment of Justice Gummow? At pages 142 to 143, having discussed this point that for the section 73 appeal there needed to be an order made in the exercise of judicial power, following that, could I just come to the second point which is the terms of the order itself on 144 to 145?

The Court not only set aside the order of Justice Levine, consistent with it being an order of the court wrongly made and needing to be removed from the court’s records, and then importantly went on to make the order which should have been made at first instance had the law been correctly perceived and argued perhaps - “application . . . be dismissed with costs”.

That is significant because that clearly is a judicial order made by the High Court.  It is the order which ought to have been made at first instance as a judicial order.  Why would it have been a judicial order and why was it a judicial order - because it, amongst other things, brought to an end that part of the controversy which concerned whether the Act conferred a power and jurisdiction on the Supreme Court.  It is difficult to fathom how, if that order be a judicial one, then simply by reason of the court coming to the wrong decision on jurisdiction and power and going on to act consistent with that wrong decision, its order becomes administrative.  Your Honours, that is all we wish to add ‑ ‑ ‑

HAYNE J:   The dichotomy you seek to draw between the administrative and the judicial may be masking something.  As I understand your argument, and that of Mr Leeming, you would say that the orders made were judicial orders made in the exercise of what was intended to be, both by the legislature and the court, as an exercise of judicial power.  Is not the only relevant observation to make that the order was not made pursuant to power validly granted?  Why go on and then put on the cap “administrative order”, “administrative power” onto that which was done?  What are we achieving?

MR GLEESON:   We do not urge that.  What your Honour put is all that is necessary and appropriate for the argument.  The Court found in Kable 1 the order was made without the legislative backing that it was believed to have, that is all.  Then it is the Court of Appeal which has said on our analysis of what Kable 1 found - and in the case of Justice Basten perhaps independently of Kable 1 because he had separate reasoning - I regard this as being an administrative process and an administrative instrument.

HAYNE J:   But the point is not just one of terminology, I think, or at least I hope it is not.  In its terms, the legislation sought to give to the Supreme Court of New South Wales a task to be exercised in the exercise of judicial power.  Now, that attempt was held ineffective for want of power, but the legislation, to which effect was given at first instance and in the Court of Appeal but then corrected on appeal to this Court, was to conduct what the legislature had sought to achieve, namely the exercise of a form of judicial power.

MR GLEESON:   Yes, your Honour, I embrace that and that is, we consider for our part, an important step in reaching the conclusion and it explains ‑ ‑ ‑

HAYNE J: But hence my proposition that there is an inversion in that sentence appearing last on paragraph 3 of the President’s reasoning.

MR GLEESON:   Yes, we adopt that, your Honour.  It is an important step because it explains why the order in this case was a judicial order, whereas the instrument in Love was held not to be a judicial order, notwithstanding there was a constitutional question raised in that case.  The essential difference, although Love did not perhaps spell out this in full detail, was that it lies behind Love that the court was acting in two severable and separate capacities in Love. In one capacity, judicially, it had to resolve whether the State Act was inoperative under section 109. It did that. It then proceeded in what must have been regarded as a discrete capacity to issue a warrant under the State Act.

The broad principle . . . periods spent in custody before trial or sentence which are attributable only to the offence . . . are to be taken into account –

and that is to be done by the governor.  It is to be done administratively and here the governor got it wrong.  How does that bear upon this issue?

MR BATES:   Well, your Honour, in my respectful submission, this is an infirm order.  I really cannot take it further than that, your Honour.  This is an infirm order and we say it does not provide the protection of an ordinary order for the reasons I have already taken your Honour to, which I will not repeat, your Honour. 

Your Honour, I will not sort of read them out, but certainly in Watson v Marshall (1971) 124 CLR 640, it is emphasised that there has to be a proper authority to detain the respondent. In my respectful submission, in summary in this aspect there was not a judicial order at all, but if it was it was an infirm order and that once it was set aside, it was set aside ab initio and it does not protect the respondent. Your Honours, that really deals with what I will call the appeal and then we move to the notice of contention.

FRENCH CJ:   Now, have you dealt with what you wanted to say in relation to ground 1 of the notice of contention as distinct from the notice of cross‑appeal?

MR BATES:   In relation to ground 1, what we say there is that the principle of this Court in Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 applies particularly in the following passages, your Honour. We put our case this way, your Honours. We say that under the Crown Proceedings Act 1988 the appellant is a juristic entity, has a juristic status and that the Executive Government is the controlling mind of the State of New South Wales.

We say that the members of the Executive Government, based on the facts that are summarised fairly fully at paragraph 8 of our written submissions, establish that the Executive Government was acting in concert with each other in a cause of common conduct with a common design to detain Mr Kable and did so when they detained him within the meaning of those principles set out in Thompson’s Case.  If I could take your Honours to page 580 in the judgment of Chief Justice Brennan and Justices Dawson and Toohey, about point 7 under the heading “Joint tortfeasors”:

We have no doubt that Channel 9 and Channel 7 were joint tortfeasors.  The difference between joint tortfeasors and several tortfeasors is that the former are responsible for the same tort –

which, in this case, was detaining Mr Kable –

whereas the latter are responsible only for the same damage.

Towards the bottom of that page:

Principal and agent may be joint tortfeasors where the agent commits a tort on behalf of the principal, as master and servant . . . Persons who breach a joint duty may also be joint tortfeasors.  Otherwise, to constitute joint tortfeasors two or more persons must act in concert in committing the tort.  Torts of all kinds ‑

which includes false imprisonment, we would submit, and by the Executive Government, we would submit, may be joint, and then refers to the:

concerted action on the part of Channel 9 and Channel 7 and that made them joint tortfeasors.

Can I take your Honours also, in the same case, to page 600, in the judgment of Justice Gummow, about point 3:

In England, Australia and New Zealand, criteria for the identification of joint tortfeasors are to be found in expressions used in The “Koursk”.  Scrutton LJ there spoke of “two persons who agree on common action, in the course of, and to further which, one of them commits a tort”, saying that in such a case there is one tort committed by one of them “in concert with another”.  Sargant LJ accepted the proposition that persons are joint tortfeasors when their “respective shares in the commission of the tort are done in furtherance of a common design” so that those who “aid or counsel, direct, or join” in commission of the tort are joint tortfeasors.

Your Honour, if I could just briefly take your Honours to our written submissions filed on 15 February 2013, starting at page 4, paragraph 8. We have set out two pages of facts at pages 4 and 5 which, in our respectful submission, show that there was a quick and concerted action by the members of the Executive Government to ultimately falsely imprison Mr Kable in the way that occurred, starting right back at the top of page 4 with the issuing of a media release in October 1994, and then ultimately leading eventually to Mr Kable’s detention for six months, commencing on 23 February 1995.

So, in our respectful submission, we say that the appellant did in fact detain Mr Kable for that six‑month period in a direct way, and not merely vicariously, and that another answer, we submit, to the issue about any immunity that the gaolers themselves might have on a vicarious basis, so that is how we put that aspect, your Honour. 

Your Honour, that then takes us to the remaining grounds of the notice of contention. Your Honour, we have handed up - over the lunch break we have prepared a notice of cross‑appeal which is based on emendations from the old paragraphs 2 to 6 with some additional paragraphs called paragraph 3a, 5a, 7, 8 and 9. At paragraph 9 we have asked to have special leave to raise the cross‑appeal grounds?

FRENCH CJ:   I think, as I foreshadowed at the beginning, we would expect you to give us some submissions initially on the question of grounds, the grounds upon which you assert that special leave should be granted, having regard to the criteria for the grant of special leave in relation to these matters.

MR BATES:   Yes, your Honour.  Well, your Honour, we say - we put two grounds.  Your Honour, first of all, we say, that because this Act applied solely to Mr Kable and to nobody else it does come under the miscarriage of justice ground.  We know from this Court’s decision in 1996 he was, in fact, detained ‑ ‑ ‑

FRENCH CJ:   The miscarriage of justice criterion relates to the decision which you are attacking.  The decision which you are attacking is the failure to allow the appeal in relation to malicious prosecution and what was called “collateral abuse of process”.

MR BATES:   Yes, your Honour.  Your Honour, it does arise out of a common substratum of fact with the other grounds but, your Honour, in terms of general principle we say it is of some importance to know whether the Executive Government, which is a juristic entity under the Crown Proceedings Act, can be guilty of what we have called “institutional malice” which is a broader concept - which is a slightly different concept of malice or improper purpose from the usual sort of malice or improper purpose.

HAYNE J:   Is it a necessary step to success in any of the grounds of the proposed cross‑appeal that you succeed on resisting the appeal by the State, that is have you got to resist the State’s appeal in order to have any opportunity for success on these additional matters?

MR BATES:   Your Honour, if we are successful in holding the false imprisonment cause of action, then it is unnecessary for us to ‑ ‑ ‑

HAYNE J:   If you were to fail to hold the position reached in the Court of Appeal, what is the consequence, if any, of that failure on these other issues which you would seek to agitate before us?

MR BATES:   Well, your Honour, if we cannot agitate them then we stand or fall on one cause of action only but we submit that it is a conceivable outcome that we could lose on false imprisonment, but still succeed in malicious prosecution or abuse of process, so ultimately ‑ ‑ ‑

HAYNE J:   It is that which I do not understand, Mr Bates, how losing on false imprisonment you could succeed on mal pros or abuse of process.  I am not saying it is wrong – just saying I do not yet understand it.

MR BATES:   Yes, your Honour.  Well, your Honour, it could depend on the reasons for – if your Honour goes back to malicious prosecution for a moment, even if hypothetically we lost on false imprisonment because the order was valid to set aside, but ultimately the present respondent would have said that the procedure ultimately found in his favour, that is a typical example of a malicious prosecution type situation, where in the typical malicious prosecution the proceedings are normally regular proceedings – we say this is irregular – but they are usually regular proceedings, and then at some stage the person becomes a plaintiff in the malicious prosecution proceedings, succeeds, and then says that the whole proceedings were effectively without reasonable and probable cause.

So where it becomes relevant is this, your Honours.  If your Honours were to decide against us that the false imprisonment claim failed because the order was valid, it would still be possible to succeed on malicious prosecution after the order was set aside if the Court accepted that there had been no proper purpose in the Executive Government ultimately bringing the proceedings and detaining Mr Kable.  So in that situation, your Honours, the appellant could succeed even if you were against us on false imprisonment.

FRENCH CJ:   Is it a necessary aspect of the malice which you assert, or what you call the institutional malice, I think – and I am having regard back to your pleadings – that the Executive procured the introduction of the Bill into the Parliament and its subsequent enactment?

MR BATES:   Well, we say that is a historical aspect of it, but we do not see it as the gravamen of the cause of action.

HAYNE J:   Well, is part of the cause of action knowing that the – is there a need for you to demonstrate, knowing the Act to be constitutionally infirm?

MR BATES:   We say no, your Honour.

HAYNE J:   So where is the malice?

MR BATES:   Well, your Honour, we say that our case on malice is that malice now means - more broadly in this case we say it was an attempt to detain him and to use the language of – by an improper purpose in the sense that the proceedings were never capable of achieving the object.  We know that because they were constitutionally infirm proceedings.  The Executive Government did not have to in fact take the proceedings under the – the Act was passed and provided a facility to take proceedings, but the Executive Government is quite clear it was carrying out a course of conduct right from October 1994 through to February 2000 - 1995.

FRENCH CJ:   So, sorry, how does the malice arise?

MR BATES:   The malice is that the Executive Government was jointly carrying out a plan to keep Mr Kable in gaol by any means, by an improper means, by any means at all which ‑ ‑ ‑

FRENCH CJ:   Well, they make an application – let us assume we can aggregate everybody into the Executive Government for the moment – so they make an application or an application is made for a detention order pursuant to a law.  You say it is not necessary for your cause of action that they knew the law was constitutionally infirm.

MR BATES:   No, your Honour.

FRENCH CJ:   We, therefore, work on the premise that they are bringing an application for a detention order under a law apparently duly enacted by the Parliament of New South Wales.

MR BATES:   It was more than that, your Honour.  The Executive Government was carrying out a whole plan to simply keep Mr Kable in gaol at any cost – they made this whole attempt, which they carried out, to set up, to follow a procedure, where they actively kept him in gaol to do whatever was necessary even though these prisoners were incapable of achieving the object.

FRENCH CJ:   Is your argument similar in relation to the abuse of process?

MR BATES:   The argument is slightly different there, your Honour, because in an abuse of process there is a question objectively whether the proceedings were misused and we say these proceedings were being misused because there was never any way these proceedings could be capable of detaining Mr Kable, objectively.  For both causes of action, your Honour, both for malicious prosecution and for ‑ ‑ ‑

FRENCH CJ:   Again, that is only a premise that the Executive, and I use that term broadly, takes an application under a law apparently duly enacted by the Parliament of New South Wales not knowing the law to be constitutionally infirm ‑ that is your premise ‑ and you say that that involves an abuse of the process of the court?

MR BATES:   We say it does partly based on what was said in Kable 1996, which was that the Executive was seeking to use the court ‑ ‑ ‑

FRENCH CJ:   Well, that is about characterisation of the legislation, is it not?

MR BATES:   Well, yes, your Honour.  We say, just on that aspect, that it is not a requirement for either malicious prosecution or for abuse of process; we say it is not a requirement that the actor has a subjective awareness of the objective quality of the conduct.  We would say the actor has to have a subjective intention, which is here to keep him in gaol, but we say that the Executive Government does not have to have some subjective awareness of the objective characterisation of the particular conduct.

FRENCH CJ:   Is that everything you want to say in relation to the question whether special leave should be granted to allow you to cross‑appeal, apart from the merits, just on the question of whether special leave should be granted?

MR BATES:   Your Honour, could I just say this aspect?  In both torts, false imprisonment and abuse of process, in neither case can the tort when it is carried out be carried out solely by the tortfeasor.  In each case the tortfeasor relies to some extent on conduct being taken independently by other actors in the process.  For example, in the classic case of malicious prosecution, for example, a person might, for example, make a false complaint to the police.  The police then investigate it and it might be heard by a judge.....is obtained.  Even though there has been a whole series of other actors who have taken part, that does not constitute a novus actus interveniens.

Similarly, in an abuse of process proceedings are misused, and in the typical case there will be a lot of people involved such as the judge and so forth who will have no idea of what may have been subjectively motivating the tortfeasor, so we say here just by analogy, the fact that in both these cases, the malicious prosecution and in the abuse of process, the fact that the legislation gets enacted, we just say is, if you like, part of the history or part of the mechanism that has been used, but the whole plan is what has been carried out by the Executive Government.  That is how we put it, your Honour.  That is on the special leave aspect, your Honour.

FRENCH CJ:   All right.  Thank you.  We will adjourn briefly to consider what course we should take.

AT 3.47 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.51 PM:

FRENCH CJ:   In the opinion of the Court, the cross‑appeal is not attended with sufficient prospects of success to warrant the grant of special leave.  Special leave will be refused.

MR BATES:   Thank you.  Your Honour, there was one matter which I overlooked in my answers before to Justices Bell and Keane in the false imprisonment.  May I have leave just to raise one further matter?

FRENCH CJ:   Yes.

MR BATES:   If I could take your Honours back to the Law Reform (Vicarious Liability) Act 1983, section 10 which, we say, qualifies section 8:

(1)      In this section:

person includes the Crown

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

(2)For the purposes of determining whether or not a person is vicariously liable in respect of a tort committed by another

person, any statutory exemption conferred on that other person is to be disregarded.

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

So in our respectful position, first of all we say the Parliament is showing here that a defence that a gaoler might have – at least by statute – does not necessarily vest with the principle.  We say that by analogy the court would adopt the same approach at common law.  Your Honour, that was the only additional point I wished to make.

FRENCH CJ:   Thank you, Mr Bates.  Yes, Mr Solicitor.

MR SEXTON:   If the Court pleases, just three small points.  Justice Hayne raised the question of collateral challenge to an order of a superior court.  Why that cannot happen, there are various statements in the authorities, but perhaps, conveniently, Justice McHugh in Ousley 192 CLR 69 at page 99 – I will not read it to your Honours. Secondly, Justice Bell raised the question of a similar challenge to a writ of habeas corpus, the reason why that cannot happen. Justice Dixon in Ex parte Williams (1934) 51 CLR 545 at 549, just the bottom of 549 going over on to page 550.

GAGELER J:   Mr Eastman’s challenge to his detention was by writ of habeas corpus, I think, in this Court.

MR SEXTON:   I am just not familiar with what happened in that, your Honour.  I know there is an inquiry now.

GAGELER J:   Do not be detained.

MR SEXTON:   In that quote from Justice Dixon, it refers to the habeas corpus challenge to the validity of an order of the Supreme Court under which a sentence was increased.  I am not sure that Mr Eastman’s challenge was to the order; I suspect it was to different aspects of the proceedings, but I am not sure about that, your Honour. 

The final matter is the – I think there is just one ground left now of the notice of contention, so‑called, which is ground 1, which alleges that the appellant was directly liable in false imprisonment.  We would say that no action can lie against the State because of the Executive’s role in the passage of legislation through Parliament.  The final legislation was the action of the Parliament, and under the Westminster system its enactment cannot be attributed to the Executive.

There is a discussion of this in a slightly different context in Bachrach v Queensland (1998) 195 CLR 547 at 561. So we would say that as in Haskins, any liability that the appellant might have would have to be vicarious, and one further factor is that for the reasons we have set out in paragraph 14 of our reply, which deals with the legislation under the Jury Act in an operation, or the Supreme Court Act in New South Wales at the relevant time, that contention about direct liability for false imprisonment would give rise to issues of fact that would need ‑ ‑ ‑

HAYNE J:   You speak lovingly of a reply, Mr Solicitor.  I, at least for my part, do not have it.

KIEFEL J:   Nor I.

CRENNAN J:   Nor I.

FRENCH CJ:   You promised one in the principal submissions, but ‑ ‑ ‑

MR SEXTON:   I am sorry, your Honour.  I get looks of bewilderment, but that is fine, we will supply it this afternoon.  Just let me summarise and say that because of the Supreme Court Act’s operation at that time, that argument by the respondent would give rise to issues of fact that would need to be tried by a jury, so it cannot be determined, we would say, by this Court in any event, even if everything else we have said about that is wrong.  It says it was filed on 1 March, your Honour, but anyway, there we are, what can I say?

FRENCH CJ:   Well, we will have to track it down.  It was not a vote of confidence in your principal submissions.

MR SEXTON:   We will have it checked with the Registry.  Unless there is anything else, those are our submissions in reply.

FRENCH CJ:   Thank you.  The Court will reserve its decision.  The Court adjourns until 9.45 tomorrow morning for pronouncement of orders.

AT 3.57 PM THE MATTER WAS ADJOURNED