State of NSW v Kable [2013] HCA 26

State of NSW v Kable [2013] HCA 26

The detention order made by a judge of the Supreme Court of New South Wales pursuant to s 9 of the Community Protection Act 1994 (NSW), though made under legislation later held invalid, was a judicial order of a superior court of record, and thus provided lawful authority for Mr Kable's detention until it was set aside. It was not void ab initio; the order was valid and effective until set aside.

Parties
Appellant: State of NSW; Respondent: Gregory Wayne Kable; Intervener: Attorney-General of the Commonwealth; Intervener: Attorney-General of the State of Queensland; Intervener: Attorney-General for the State of Victoria; Intervener: Attorney-General for the State of Western Australia
Jurisdiction
Australia
Judgment Date
05 June 2013
Procedural Posture
Appeal / High Court of Australia Judgment on Appeal From Court of Appeal of Supreme Court of New South Wales
Outcome
Appeal allowed.
Legal Topics
Judicial Power, Superior Court of Record, Validity of Judicial Orders, False Imprisonment, Lawful Authority
Constitutional Law Torts Judicial Power Superior Court of Record Validity of Judicial Orders False Imprisonment Lawful Authority

Case Brief

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Parties

State of NSW

Appellant

Gregory Wayne Kable

Respondent

Attorney-General of the Commonwealth

Intervener

Attorney-General of the State of Queensland

Intervener

Attorney-General for the State of Victoria

Intervener

Attorney-General for the State of Western Australia

Intervener

Procedural Posture

Appeal / High Court of Australia Judgment on Appeal From Court of Appeal of Supreme Court of New South Wales

Legal Issues

  1. 1 Whether the detention order made by the Supreme Court of NSW under an invalid Act provided lawful authority for the respondent's detention
  2. 2 Whether the order was a judicial order or a nullity
  3. 3 Whether officers could rely on an order made under invalid legislation as lawful authority for detention

Ratio Decidendi

The detention order made by a judge of the Supreme Court of New South Wales pursuant to s 9 of the Community Protection Act 1994 (NSW), though made under legislation later held invalid, was a judicial order of a superior court of record, and thus provided lawful authority for Mr Kable's detention until it was set aside. It was not void ab initio; the order was valid and effective until set aside.

Court Disposition

Appeal allowed.

Orders

  • Appeal allowed.
  • Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 8 August 2012 and, in their place, order that the appeal to that Court be dismissed with costs.