State of NSW v Kable

[2012] HCATrans 356

[2012] HCATrans 356

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S233 of 2012

B e t w e e n -

STATE OF NSW

Applicant

and

GREGORY WAYNE KABLE

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2012, AT 9.32 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 friend, MR M. J. LEEMING, SC, for the applicant.  (instructed by Crown Solicitor (NSW))

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

FRENCH CJ:   Mr Solicitor, I will not hear you on the substance of the application initially.  I just want to know what your response would be to a condition being imposed on any grant of special leave that would require the respondent’s costs to be paid in any event.

MR SEXTON:   That is acceptable to us, your Honour.

FRENCH CJ:   All right.  I will hear from you now, Mr Bates.  Mr Bates, I must say that it would be helpful if you could come to the heart of things.  The written submissions which were filed really do not give us the degree of assistance we would expect in a matter of this difficulty, but if you can indicate to us why you think special leave should not be granted.

MR BATES:   Your Honour, there are two lines of the argument which I will deal with in turn.  The first line of argument is that the detention order that was made by Justice Levine on 23 February 1995 is not an order that meets the criteria of being a judicial order of a superior court that was valid until it was set aside.  That is the first line of argument.  The second line of argument is that the findings of fact that were made by this Court in the 1996 constitutional decision in Kable v Director of Public Prosecutions 189 CLR 51 preclude a number of the submissions that are advanced on behalf of the applicant and prevent this case from being a suitable vehicle to raise some of the issues about what I might call Kable challenges more generally that the applicant seeks to make.  Could I deal with those two lines of argument in turn?

FRENCH CJ:   Yes.

MR BATES:   First of all, the applicant relies primarily on the principle that the order of a superior court is valid until set aside.  Implicit in that proposition are two premises.  The first premise is that the Supreme Court of New South Wales was vested with judicial power, or at least was vested with a function that was properly ancillary or incidental to the exercise of judicial power when it made the disputed detention order.  The second proposition is that the active issue in the order was itself a judicial act.  I will call the first premise the “character of the power” argument, and the second proposition the “nature of the act” argument.  Both of those propositions were rightly rejected and refuted by the Court of Appeal and largely based on the findings of fact that were made by this Court in 1996 in the decision which I have referred your Honours to.  

The two premises, that is, the character of the power argument and the second premise, the nature of the act argument, were affirmed as the critical questions in the decision of this Court in Love v Attorney‑General (NSW);Peters v Attorney‑General (1990) 169 CLR 307. That case I will take your Honours to in a moment, but it was critical to reasoning in the Court of Appeal. Before I take your Honours more fully to that argument, could I briefly take your Honours to the Act itself which is set out in the respondent’s authorities?

FRENCH CJ:   Can I just ask, how does the argument that you are taking us to now go to the question of whether there should be a grant of special leave?

MR BATES:   The key answer is this, your Honours.  The findings that were made in the 1996 decision mandated the result both in the Court of Appeal and, we would submit, ultimately in this Court if leave were granted.  It really comes back very much to the actual findings that were made.

KIEFEL J:   That is that in the way in which the Court of Appeal approached it, that Kable is the complete answer – the findings in Kable?

MR BATES:   That was certainly one element of it, your Honour.  The other element was really a combination of Kable’s Case and Love’s Case.  Your Honour, Kable is the answer insofar as it goes to the nature of the findings of fact.  The applicant argues on that aspect that those findings only go to the issue of power, the limits of power.  But it was pointed out in the Court of Appeal, we say correctly, that in this particular case the findings of fact also float over to the private litigation between these parties for three reasons, those reasons being firstly that under the Community Protection Act itself in tab 1, which I will take you to in a moment, the Act only applied to one person in the whole world – that was Kable.

The second reason was that Kable and the DPP were the parties to the 1996 appeal.  The DPP was represented in that appeal by and through the Solicitor‑General, and the State of New South Wales in the current appeal and also below has accepted liability for the DPP.  The third reason was that, if one analyses the actual reasons why the Community Protection Act was in fact invalid, it was very much directed to the ad hominem nature of that Act, directed as it was towards Mr Kable.  So we say that is one element, your Honours.

We say that certainly Kable was part of the answer, but the other aspect is that when one then applies those findings to the principle of Love and Peters, we say that the Community Protection Act can only be seen to have been an administrative or executive jurisdiction.  On that basis, one goes back to what was said in said in Love and Peters, well, if it is an administrative or executive jurisdiction, one has to then go back to see what the Act that justified that permitted, which in this case was absolutely nothing because it was a totally invalid Act.

In the 1996 decision an attempt was made at that stage by the Solicitor‑General representing the DPP to try and save section 28 of the Community Protection Act which purported to give immunity to the State and to the officials, but that fell as well.  If I could take your Honours perhaps just briefly, partly in response to your Honour Justice Kiefel, to the Act itself for a moment in the respondent’s authorities, tab 1.

If your Honours go to page 3, section 3, your Honours will see it applied just to Kable.  If your Honours go to page 4 at section 5 that was a general power to make a detention order under the Act.  If your Honours go to page 6, at the top of the page, section 9(2), it explains that the detention order took effect on the date either when it was made or such later date as was specified in the order.  If your Honours go to page 8, sections 19 and 20 are of some importance.  Section 19:

A detention order is sufficient authority for the person against whom it is made to be held in custody in accordance with the terms of the order.

So that was the basis of keeping him there, and this is also terribly important, section 20:

A detention order does not have effect while the person against whom it is made is lawfully in custody otherwise than under the order.

That became important because Justice Levine made the order on 23 February 1995 and on that particular day Kable was in fact lawfully in custody under approximately 17 pending criminal charges under the Commonwealth postal legislation, and he was detained there and therefore, while he was detained under that legislation pending those charges, no detention order under this Act could have had effect. 

On that day Justice Levine granted him bail on all of those other 17 charges, so that the only authority to detain Kable at that stage became the order that was made in fact on 23 February and there was no other authority.  So in response to your Honour, it was not just Kable, but the Act itself was the only basis upon which Kable was being detained and Justice Levine by granting bail on the other charges meant that there was no other impediment to making this the effect – the sole basis of the detention authority.

FRENCH CJ:   Your proposition is, is it, that it is beyond argument that the detention order was invalid ab initio without the assistance of a determination of the court to reach that status, and that he was therefore falsely imprisoned?

MR BATES:   Yes, that is correct, your Honour.

KIEFEL J:   What do you say to the applicant’s submissions relating to the defence of lawful justification?

MR BATES:   Well, all the cases that are relied upon by the applicant in support of that proposition appear to be cases where the order that was made was a judicial order, or at least was made by a court exercising judicial power.  What we say is completely undisputed in this case is that this order was a purely administrative order made entirely in an executive‑type jurisdiction.  It is indisputable that there was no judicial power involved and it is indisputable that it was not some sort of function that was ancillary or incidental to judicial power.

Therefore one comes back to the proposition that everyone appears to accept since at least Love’s Case that it was a purely administrative order and then the only authority then becomes the validity of the Act which purports to justify the order, which in this case is this detention Act which this Court in 1996 found was invalid from the moment of assent and which this Court found could not salvage section 28, which is the immunity provision. 

So we say therefore that the other proposition that my friends seek to agitate just does not arise here on the findings of fact.  There is not a single case that my friends have cited, not a single case that I have found anywhere, to suggest that ‑ ‑ ‑

KIEFEL J:   Why would the common law defence of justification necessarily have to depend upon the character of the order rather than the order being compulsory, compelling performance?

MR BATES:   Because the common law defence of justification depends upon the execution of an order of a court, and this Court has already found that ‑ ‑ ‑

KIEFEL J:   Execution of the authority of the court?

MR BATES:   Well, on the findings that were made in 1996, although the body was called the Supreme Court of New South Wales, it was not acting as a court.  The effect of the other proposition that my friends seek to advance for the applicant is that a purely administrative body exercising purely administrative power, even if the order is entirely void, would somehow be effective to be implemented.  That is what my friends are really asking this Court to ‑ ‑ ‑

KIEFEL J:   I am not sure that follows from their argument.

MR BATES:   Well, your Honour, my submission is that the argument that my friends are seeking to advance is to the effect that, even if one assumes that the court was not exercising judicial power and the order was wholly administrative, that nevertheless officials who detain someone on the strength of that order for whom the applicant is responsible, at least vicariously, can be defended.  We submit that that proposition is not one that has any support in the authorities and we submit is not reasonably arguable.  Your Honours, if I could take you just to some of the critical findings in the Kable decision itself which is at tab 2 of our authorities.  First of all if I take you to the judgment of the majority ‑ ‑ ‑

FRENCH CJ:   What is the proposition that you are seeking to extract from these passages?

MR BATES:   The proposition that the findings made by the court really make the Kable Case itself such an extreme breach of all the principles of judicial power ‑ ‑ ‑

KIEFEL J:   I think you could take it that we are relatively familiar with the Kable decision.  We refer to it quite a lot.

MR BATES:   Yes, your Honour.  My submission, your Honours, therefore would be that if I could take your Honours to the Love decision at tab 3 and if I could take your Honours first of all to the top of page 319, their Honours there draw the distinction between two meanings of judicial order, the so‑called loose sense which is really just an administrative order:

In one sense – a loose sense – the warrant –

In this case this warrant was a listening devices warrant which was found by the court to be an administrative ‑ ‑ ‑

FRENCH CJ:   Well, this tells us that there are things that can be done in a State court, some of which may be judicial in character, some of which may

be administrative in character, some of which may be administrative incidental to judicial functions.

MR BATES:   Yes, your Honour.

FRENCH CJ:   So what is the proposition you are advancing?

MR BATES:   The proposition I am seeking to advance is that the common law defence of justification does not apply to orders other than judicial orders in the very strict sense, or the stricter sense referred to and described in Love v Attorney‑General where the act itself of issuing the warrant is itself judicial, which it was not in this case.  That is the proposition I am seeking to extract, your Honour, from the different meanings that were given in this case to the idea of a notion of a judicial order.

FRENCH CJ:   So that is just going to the characterisation of the detention order as administrative?

MR BATES:   Yes, your Honour.

FRENCH CJ:   As not judicial?

MR BATES:   Yes, your Honour.  Then, your Honour, it followed from that at the bottom of page 322 in the last line:

Once it is accepted that the warrant is not a judicial order –

and they are using judicial order there in the strict sense of judicial order –

it becomes an instrument made pursuant to a circumscribed statutory authority . . . it is necessary to construe the warrant by reference to the width of the enabling statutory provision.

In this case, as we know from the 1996 Kable decision, that authority was no authority at all.  In my respectful submission, therefore, it would not be reasonably arguable to contend that the common law defence of justification could extend to a situation where the only authority really one is left with is a statutory authority which itself in fact is wholly invalid.  It is not an order of a court exercising judicial power and it is not itself a judicial order.  Your Honours, really that is the nub of the respondent’s opposition to this application.

FRENCH CJ:   All right, thank you, Mr Bates.  We will not need to trouble you, Mr Solicitor. 

There will be a grant of special leave in this matter, subject to the condition that the appellant will pay the respondent’s costs of the appeal and of this special leave application.  Would it be likely to take more than a day?  I imagine there might be ‑ ‑ ‑

MR SEXTON:   It just might be unsafe perhaps, your Honour, given that there will be ‑ ‑ ‑

FRENCH CJ:   Interventions.

MR SEXTON:   I expect there to be interventions and it could run into – it might finish in a day.

FRENCH CJ:   A day to a day and a half.  Yes, all right.

MR BATES:   Your Honour, could I just mention one thing.  I anticipate this aspect, that the respondent will file a notice of contention because there were two other causes of action that were dismissed, one being the action for collateral abuse of process and the other being the action from which there is prosecution.

FRENCH CJ:   Yes, all right, thank you.

MR SEXTON:   Your Honour, there is just one further thing.  I think on the timetable our submissions would be due in about the middle of January.  There just may be some logistic problems about that.

FRENCH CJ:   I think the timetable would propose appellant’s submissions be filed and served by 25 January.  Does that create a difficulty?

MR SEXTON:   No.

FRENCH CJ:   Then respondents by the 15th and reply by 1 March, so it will not be listed before April.

MR SEXTON:   Thank you, your Honour.

FRENCH CJ:   Yes, all right, thank you.

AT 9.53 AM THE MATTER WAS CONCLUDED