Kable v State of New South Wales & Anor [1999] NSWSC 201

Kable v State of New South Wales & Anor [1999] NSWSC 201

The plaintiff was not entitled to summary judgment because his claims for malicious prosecution and false imprisonment fell within s 88 of the Supreme Court Act and therefore outside the summary judgment procedure in Part 13. In any event, the High Court decision did not determine malice, malicious prosecution, false imprisonment, assault or abuse of process, and the defendants had factual and legal issues to advance, including s 35 of the Director of Public Prosecutions Act 1986. It was therefore not an appropriate case for summary judgment, but directions should be made to progress the proceedings toward trial.

Jurisdiction
Australia
Judgment Date
18 March 1999
Procedural Posture
Common Law Claim for Damages Including False Imprisonment, Malicious Prosecution, Assault and Battery and Abuse of Process / Interlocutory Notice of Motion Seeking Summary Judgment, Assessment of Damages and Directions for Trial
Outcome
The plaintiff's application for summary judgment was dismissed; directions were made for a status conference and costs of the motion were ordered to be costs in the cause.
Legal Topics
['summary Judgment' 'jury Trial' 'false Imprisonment' 'malicious Prosecution' 'abuse of Process' 'community Protection Act 1994 (nsw)' 'preventive Detention']
['common Law' 'civil Procedure' 'torts' 'constitutional Law'] ['summary Judgment' 'jury Trial' 'false Imprisonment' 'malicious Prosecution' 'abuse of Process' 'community Protection Act 1994 (nsw)' 'preventive Detention']

Case Brief

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Procedural Posture

Common Law Claim for Damages Including False Imprisonment, Malicious Prosecution, Assault and Battery and Abuse of Process / Interlocutory Notice of Motion Seeking Summary Judgment, Assessment of Damages and Directions for Trial

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to summary judgment under Part 13 rule 2 of the Supreme Court Rules notwithstanding s 88(b) of the Supreme Court Act.' 'Whether proceedings alleging malicious prosecution and false imprisonment fall within s 88 and therefore must be tried with a jury.' "Whether the High Court decision in Kable v Director of Public Prosecutions (NSW) established malice or determined the plaintiff's pleaded tort causes of action." 'Whether the defendants had arguable factual or legal defences, including reliance on s 35 of the Director of Public Prosecutions Act 1986.' 'What directions should be made to progress the matter toward trial.']

Ratio Decidendi

The plaintiff was not entitled to summary judgment because his claims for malicious prosecution and false imprisonment fell within s 88 of the Supreme Court Act and therefore outside the summary judgment procedure in Part 13. In any event, the High Court decision did not determine malice, malicious prosecution, false imprisonment, assault or abuse of process, and the defendants had factual and legal issues to advance, including s 35 of the Director of Public Prosecutions Act 1986. It was therefore not an appropriate case for summary judgment, but directions should be made to progress the proceedings toward trial.

Court Disposition

The plaintiff's application for summary judgment was dismissed; directions were made for a status conference and costs of the motion were ordered to be costs in the cause.

Orders

  • ["Paragraph (1) of the plaintiff's notice motion filed 2 November 1998 is dismissed." 'A status conference is to be allocated in about 2 weeks time. The Registry is to notify the parties of the time and date of the conference. Parties are to submit either a proposed joint timetable or failing that, individual...