The High Court of Australia in State of NSW v Kable [2013] HCA 26 (5 June 2013) http://www.austlii.edu.au/au/cases/cth/HCA/2013/26.html has handed down an interesting decision on the law of false imprisonment. The issues raised are of most interest to Australian Constitutional lawyers, but are of general relevance in other jurisdictions. Mr Kable was a convicted prisoner whom the NSW Government wished to keep in jail following the expiry of his term of imprisonment. They passed special legislation to do so. Later the High Court of Australia (in what we must now call Kable (No 1)) held that the legislation was invalid under ch III of the Constitution, as it impermissibly gave a non-judicial function to a judicial body.

In the current set of proceedings Mr Kable is suing NSW for false imprisonment. We now know, since the earlier decision, that he should not have been locked up after the expiry of his initial term. But the NSW government, not unnaturally, argues that he had been the subject of apparently valid judicial orders, and that that should constitute a defence to the tort of false imprisonment.

Greater minds than mine will have to explain the precise reasoning of the High Court here, but in essence they held that indeed the trial judge, Levine J, was acting "judicially" in some sense when he ordered Mr Kable to be further detained, and hence that this constituted a valid defence. There are some interesting jurisprudential comments about whether "void" and "voidable" are the only options for orders, and probably this passage from the majority sums things up well:

"[40] In this case, if the detention order made by Levine J was not effective until set aside, those apparently bound by the order were obliged to disobey it, lest they be held responsible for false imprisonment. On Mr Kable's argument, the order was without legal effect and should not have been obeyed. The decision to disobey the order would have required both the individual gaoler and the Executive Government of New South Wales to predict whether this Court would accept what were then novel constitutional arguments. More fundamentally, as the legal philosopher Hans Kelsen wrote, "[a] status where everybody is authorized to declare every norm, that is to say, everything which presents itself as a norm, as nul, is almost a status of anarchy"."

The result seems to mean that, while an erroneous administrative calculation of a period of imprisonment will not be held to be a good defence to false imprisonment (Cowell v Corrective Services Commission (1988) 13 NSWLR 714, R v Governor of Brockhill Prison; ex parte Evans (No 2) [2001] 2 AC 19), an erroneous judicial decision generally will be.

Regards

Neil