Kable v Director of Public Prosecutions (NSW)

Kable v DPP (NSW)

Court	High Court of Australia
Full case name	Kable v The Director of Public Prosecutions for New South Wales
Decided	12 September 1996
Citation(s)	(1996) 189 CLR 51, [1996] HCA 24
Case history
Prior action(s)	Kable v Director of Public Prosecutions (1995) 36 NSWLR 374
Subsequent action(s)	none
Case opinions
(4:2) The Community Protection Act 1994 was an invalid law because it vested the Supreme Court of New South Wales with powers incompatible with its role in the federal judicial structure (per Toohey, Gaudron, McHugh and Gummow JJ; Dawson J & Brennan CJ dissenting)
Court membership
Judge(s) sitting	Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ

Kable v Director of Public Prosecutions for NSW (1996) 189 CLR 51; [1996] HCA 24^[1] was a significant case decided in the High Court of Australia regarding the Chapter III rights in the Constitution and the scope of power of state courts vested with federal jurisdiction.

Background

The Parliament of New South Wales passed a bill called the Community Protection Act 1994. That legislation authorised the Supreme Court of New South Wales to make an order requiring that a single individual could be detained in prison if the Court was satisfied that that person posed a significant danger to the public. The Act was later amended to authorise the Court to detain a single named person, Gregory Wayne Kable, who was sentenced to five years imprisonment for the manslaughter of his wife.

This legislation was closely modelled on a law passed in Victoria, the Community Protection Act 1990 (Vic), which was enacted to authorise 'preventive detention' for Garry David.

Whilst in gaol, Kable sent threatening letters to the people who denied him access to his children, aged four and two years. After a sharp separation from his children to prison the letters were written whilst in prison in the first 12 months after being denied access to his children. He was subsequently charged and sentenced to an additional 16 months for writing the letters in 1990. Four years later and granted no parole his release from gaol coincided with a state election campaign, in an environment where, allegedly, voters were concerned about "law and order". Legislation was subsequently passed through parliament naming him explicitly. Early in 1995, Justice Levine of the Supreme Court made an order under the Community Protection Act, in respect of Kable, requiring that he be detained for a period of six months. Kable appealed that decision, and his appeal was dismissed by the NSW Court of Appeal in Kable v Director of Public Prosecutions (1995) 36 NSWLR 374. It was from this decision that the appeal was brought to the High Court, on grounds of constitutional invalidity.

Kable was represented by Sir Maurice Byers, a former Solicitor-General of Australia.^[2]

Decision

The argument which eventually persuaded a majority of the members of the High Court was the argument that

"the Act vests in the Supreme Court of New South Wales a non-judicial power which is offensive to Chapter III of the Constitution. Hence any exercise of that power would be unconstitutional and the Act conferring the power would be invalid. ... The argument is not one which relies upon the alleged separation of legislative and judicial functions under the Constitution of New South Wales. Rather it is that the jurisdiction exercised under the Act is inconsistent with Ch III of the Commonwealth Constitution because the very nature of the jurisdiction is incompatible with the exercise of judicial power."

The High Court held that the law was unconstitutional, and in the process construed a limitation on the powers of state courts vested with federal jurisdiction under Chapter III of the Constitution. They held that Chapter III, particularly section 71 purports to vest federal judicial power in the Supreme Court of New South Wales. The Act vested in the Supreme Court powers that were incompatible with the exercise of judicial power of the Commonwealth, that is, the law required the Supreme Court to exercise a power incompatible with its role in the federal judiciary.

Note: That this decision's principles [the Kable Doctrine] have been revisited many times and in narrow and arguably restrictive terms and in at least one case used to hold legislation invalid in International Finance Trust Company Limited v New South Wales Crime Commission.

Aftermath Kable 2

The Community Protection Act 1994 (NSW) ("the CP Act") provided for "the preventive detention (by order of the Supreme Court [of New South Wales] made on the application of the Director of Public Prosecutions) of Gregory Wayne Kable". On 23 February 1995, on the application of the Director of Public Prosecutions, Levine J made an order pursuant to s 9 of the CP Act that Mr Kable be detained in custody for a period of six months. Mr Kable appealed against this order to the Court of Appeal but his appeal was dismissed.

By special leave, Mr Kable appealed to the High Court. After the grant of special leave, but before the appeal to this Court was heard, the six-month period fixed by the order of Levine J expired and Mr Kable was released from detention. In September 1996, the High Court held that the CP Act was invalid. This Court allowed Mr Kable's appeal, set aside the order which the Court of Appeal had made, and, in its place, ordered that the appeal to that Court be allowed with costs, the order of Levine J be set aside and, in its place, order that the application of the Director of Public Prosecutions be dismissed with costs. It will be convenient to refer to this decision as Kable (No 1).

The Liberal Executive Government of NSW drafted the unconstitutional legislation and had known that it was unconstitutional and many complaints were made by numerous agencies like the Law Society of NSW, The NSW Bar Association, NSW Council for Civil Liberties etc. Then the Law and Justice Foundation provided $5,000 to fund the damages claim on behalf of Mr Kable.

Mr Kable commenced proceedings in the Supreme Court of New South Wales, claiming damages for false imprisonment. Initially the proceedings were brought against the State of New South Wales ("the State"). Later, the Director of Public Prosecutions ("the DPP") was joined as a defendant. Ultimately three causes of action were pleaded: abuse of process, malicious prosecution and false imprisonment. Before the action was tried, the DPP was dismissed from the proceedings by consent.

The primary judge (HoebenJ) determined a number of issues as preliminary questions. Those issues were decided against Mr Kable and judgment entered for the State. In particular, the primary judge rejected Mr Kable's argument that the detention order made by Levine J was a nullity when made and held that the order was valid until it was set aside.

Mr Kable appealed to the Court of Appeal. That Court (Allsop P, Basten, Campbell and Meagher JJA and McClellan CJ at CL) allowed the appeal in part. The Court of Appeal held that the primary judge had been right to dismiss Mr Kable's claims for collateral abuse of process and malicious prosecution but that Mr Kable should have judgment against the State for damages to be assessed on his claim for false imprisonment. All members of the Court of Appeal held that the order of LevineJ was no answer to Mr Kable's claim for false imprisonment.

ALLSOP P: 63 NSW Court of Appeal."I can see the reasons, conformable with maintaining confidence in orders of the courts, for extending the operation of the assumed common law rule even to circumstances that involve extraordinary legislation such as the CP Act and the vices therein contained, and for extending the common law protection of persons such as the gaoler who act on the invalid non-judicial orders made under such legislation, as long as, in form, they are issued in the name of a court. The countervailing considerations are, however, far more powerful, in my view. This was not a judicial order. It was not made after judicial process. To extend the assumed common law principle to protect those who deprive the liberty of persons under such orders would be to fashion the common law to give efficacy to the unconstitutional attempted exercise of will of the executive, to deprive a subject of his liberty, in circumstances where the officer, who acted bona fide, is already protected by statute. I would not be willing to extend the assumed common law principle in this way.

Further, if I am correct in my view that the assumed common law principle does not extend so far as to cover the present circumstances, it might be thought that it is for the High Court to take that step, given the deep involvement of constitutional principle and the operation of the integrated legal system in the Commonwealth. It is therefore unnecessary to consider finally the existence and reach otherwise of any such common law principle."^[3] Kable v State of New South Wales [2012] NSWCA 243.

Application special leave to appeal High Court of Australia

The State of NSW sought special leave to appeal to the High Court against the orders made by the NSW Court of Appeal. The Attorneys-General of the Commonwealth, Queensland, Victoria and Western Australia intervened in support of the State's appeal.

Mr Kable also filed a notice of contention because there were two other causes of action that were dismissed by the court of appeal, one being the action for collateral abuse of process and the other being the action from malicious prosecution.

Then the High Court of Australia suggested it would grant leave to appeal on the basis that the state of NSW pay the costs win or lose of the leave application and the High Court appeal.

FRENCH CJ: 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.^[4] State of NSW v Kable [2012] HCATrans 356 (14 December 2012).

Special leave (cross-appeal contention issues)

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 for Mr Kable: 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.

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.

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. ^[5] State of NSW v Kable [2013] HCATrans 71 (9 April 2013)

Hearing High Court Kable (No 2)

Then the High Court unanimously upheld the appeal by the State of NSW. The High Court relied on their view that the supreme court is a superior court of record and therefore the legislation was valid until set aside. The High Court said that because the [Community Protection Act 1994] was originally appealed to the court of appeal and judged valid prior being judged invalid, by the High Court in Kable 1, the High Court said that that produced its constitutionality because it was appealed in a federal jurisdiction. Noting that its constitutionality was never judged in the Highest Court prior Kable 1 and therefore never endured the full length of the appeal process in Australia. ^[6]

The Community Protection Act 1994 was Novel and difficult to defend. There are endless copyright breaches by the use of the name of (Gregory Wayne Kable) and the (Community Protection Act 1994) all over the Internet which the NSW government according to the High Court of Australia in Kable (No 2) don't have to take responsibility for in terms of the continuing damages caused to Mr Kable. The law was ruled unconstitutional by the High Court of Australia in Kable (No 1) and therefore a nullity, but because the High Court of Australia in Kable (No 2) decided it was constitutional due to the appeal process taken to resolve the matter Mr Kable was ordered to pay costs, a contradiction in terms.

References

Winterton, G. et al. Australian federal constitutional law: commentary and materials, 1999. LBC Information Services, Sydney.
Fairall. Violent Offenders and Community Protection in Victoria - The Gary David Experience, 1993. 17 Criminal Law Journal 40.

External links

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