Kable v NSW

(2012) 268 FLR 1; [2012] NSWCA 243

NSW Court of Appeal

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Interrogate

Catchwords

1. Constitutional Law (Cth)
2. › Judicial power
3. › Chapter III
4. › State courts invested with federal jurisdiction
5. › Order made under State legislation incompatible with judicial power
6. › Whether non-judicial order of superior court valid until set aside
7. › Whether exercise of federal jurisdiction converted non-judicial order into judicial order
8. › Constitution, Ch III
9. › Judiciary Act 1903 (Cth), ss 39(2), 79, 80
1. Tort
2. › False imprisonment
3. › Detention pursuant to order of Supreme Court under invalid legislation
4. › Whether order provided lawful justification for detention
5. › Whether order was judicial order of superior court of record
6. › Community Protection Act 1994 (NSW)
1. Tort
2. › Vicarious liability
3. › State liability for acts of prison officers
4. › Whether statutory protection of gaoler enured to benefit of State
5. › Law Reform (Vicarious Liability) Act 1983 (NSW), ss 8, 10
1. Tort
2. › Malicious prosecution
3. › Proceedings commenced under legislation later held unconstitutional
4. › Whether unconstitutionality of legislation constitutes malice or want of reasonable and probable cause

Quick Take

An order of a superior court made in the exercise of a function that is incompatible with judicial power (as characterised by the High Court in Kable v DPP) is not a judicial order and does not enjoy the presumption of validity that attaches to judicial orders of superior courts of record. Such an order is void ab initio and provides no lawful justification for detention. The State is vicariously liable under the Law Reform (Vicarious Liability) Act 1983 (NSW) for false imprisonment carried out by its officers pursuant to such an order, regardless of any statutory protection available to the officers personally. The commencement of proceedings under legislation later held unconstitutional does not, without more, constitute malice or improper purpose for the torts of malicious prosecution or collateral abuse of process.