Dear Colleagues;
A significant decision of the NSW Court of Appeal was handed down today in Kable v State of New South Wales [2012] NSWCA 243 http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=160066 (thanks Bill Madden for alerting me to it.) The name "Kable" now has major significance for Constitutional doctrine in Australia due to the principles laid down by the decision of the High Court of Australia in 1996 which declared to be invalid special legislation that had been passed aimed at keeping Mr Kable in prison beyond the expiry of his original prison term. But in these separate proceedings Mr Kable has been attempting to recover damages in tort against the State of NSW as a consequence of his additional term of imprisonment pursuant to the invalid legislation.
Two claims were dismissed fairly shortly- he could not succeed in a claim for malicious prosecution or "abuse of process" because both these tort actions required a showing of some sort of "malice" or improper purpose in those commencing proceedings, and there was none present - the DPP and his officers were simply acting in accordance with legislation passed by the NSW Parliament. Nor could he rely on some concept of "institutional malice".
But since the legislation authorising his extended detention was found by the HCA to be seriously flawed, as attempting to use the NSW Supreme Court for the exercise of a non-judicial function, Mr Kable's claim for false imprisonment has (finally) succeeded. Despite the fact that his gaolers were acting in accordance with what they thought was valid authority given by Parliament, the effect of the later HC decision was that this legislation was invalid, and what appeared to be an exercise of "judicial power" in imprisoning Mr Kable (which usually precludes an action for false imprisonment) was in fact nothing of the sort. Hence the gaolers had no common law immunity from suit, as they could not satisfy the onus they bore (once imprisonment was established) to show that it was lawfully justified.
The relevant legislation making the State of NSW vicariously liable for the acts of its officers said that the State could be liable even if the officers enjoyed a statutory immunity, so an arguable statutory immunity enjoyed by the gaolers presented no barrier to the action against the State.
(Interestingly there are some comments made on the "masters tort" vs "servants tort" debate at paras [51]-[54] by Allsop P, with whose general comments most of the other members of the Court agreed. Contrary to what some of us think, Allsop P expressed the opinion that what was really the majority view of Kitto J & Taylor J in Darling Island Stevedoring and Lighterage Co v Long [1957] HCA 26; 97 CLR 36- the master's tort theory, that VL treats the actions of the servant as the actions of the master- was wrong, and that the contrary view of Fullager J, that liability is based on the wrong of the servant, "has prevailed". It would be interesting to see what the High Court has to say about this way of treating the majority view in one of its own earlier decisions, but since on the facts of this Kable decision either view would have led to recovery against the State it is probably not likely that they will comment on the issue, even if an appeal is taken.)
Apart from the niceties of this point, I think the decision is correct. It is also consistent with some recent decisions of the UK Supreme Court on whether an action for false imprisonment may lie where legislation has later been found to be invalid.
But it does seem to run counter to the "tone", if not the precise reasoning, of the fairly recent HCA decision in Haskins v The Commonwealth [2011] HCA 28 (10 August 2011), where the Court held that one member of the armed forces had no action against another member who had arrested him under legislation later found to be invalid. The precise basis of Haskins lay in fact in the relationship between members of the forces, rather than in the question of the effect of invalid legislation, but it would have been nice for the NSWCA to spell out precisely why this case differed from Haskins.
Regards
Neil




Neil Foster
Associate Professor,
Newcastle Law School;
Assistant Dean, Teaching & Learning,
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

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