Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Kable v State of New South Wales [2012] NSWCA 243
• Hearing dates: 27, 28 October, 29 November 2011
• Decision date: 08 August 2012
• Before: Allsop P at [1]; Basten JA at [67]; Campbell JA at [173]; Meagher JA at [174]; McClellan CJ at CL at [175]

Decision

(1) Allow the appeal in part.

(2) Set aside the orders in the Common Law Division dismissing the proceedings against the first defendant (the State) and ordering the plaintiff to pay the defendant's costs of the proceedings.

(3) In lieu of the judgment and orders below:

(a) give judgment for the plaintiff on his claim against the first defendant (the State) for unlawful imprisonment;

(b) order the first defendant to pay the plaintiff's costs of the proceedings to date in the Common Law Division.

(4) Remit the matter to the Common Law Division for assessment of damages.

(5) Order that the respondent pay the appellant's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: ADMINISTRATIVE LAW - judicial power - executing invalid order of superior court - whether order of superior court incompatible with exercise of judicial power is valid until set aside - whether non-judicial order derives whatever authority it has solely from the relevant legislation - effects of orders in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51; CONSTITUTIONAL LAW - judicial power - Supreme Court order under statutory power incompatible with judicial power invalid - order made in proceedings involving exercise of federal judicial power - exercise of federal judicial power simultaneous with function incompatible with judicial power - whether invalid State law applied by federal law - Judiciary Act 1903 (Cth), ss 39(2), 79 and 80; TORT - defences - protection from liability in tort for officer enforcing non-judicial order of judge of superior court in good faith - whether protection exists at common law - whether any protection extends to orders incompatible with exercise of judicial power; TORT - false imprisonment - plaintiff detained pursuant to order of Supreme Court on application of Director of Public Prosecutions pursuant to purported State legislation - legislation incompatible with judicial power and invalid - whether deprivation of liberty carried out by a person for whose conduct the State was liable - whether deprivation of liberty justified by law; TORT - malicious prosecution and collateral abuse of process - plaintiff detained pursuant to order of Supreme Court on application of Director of Public Prosecutions pursuant to invalid legislation - whether malice established; TORT - vicarious liability - vicarious liability of the State for conduct of persons in service of the Crown - whether State vicariously liable for conduct which was tortious absent statutory protection - Law Reform (Vicarious Liability) Act 1983 (NSW), ss 8 and 10
• Legislation Cited: Bill of Rights 1688 (Imp), art 9; Claims Against the Colonial Government Act 1876, s 3; Claims against Government Act 1857 (NSW); Claims Against the Government and Crown Suits Act 1912 (NSW); Community Protection Act 1994 (NSW), ss 3, 4, 5, 14, 15, 19, 22, 23, 28, 31; Constables Protection Act 1750 (Imp) (24 Geo II, c 44), s 6; Constitution, ss 51, 71, 75, 76, 77, 109; Ch III; Crimes Act 1900 (NSW), s 4; Crimes Legislation Amendment (Sentencing) Act 1999 (NSW); Crimes (Sentencing Procedure) Act 1999 (NSW), s 62; Criminal Procedure Act 1986 (NSW), ss 241-244; Crown Proceedings Act 1988 (NSW); Crown Proceedings Act 1972 (SA); Crown Proceedings Act 1947 (UK); Customs Act 1901 (Cth); Director of Public Prosecutions Act 1986 (NSW); Evidence Act 1995 (NSW), s 91; Imperial Acts Application Act 1969 (NSW); Interpretation Act 1987 (NSW), s 21; Judiciary Act 1903 (Cth), ss 38, 39, 78B, 79, 80; Law Reform (Vicarious Liability) Act 1983 (NSW), ss 5, 7, 8, 10, 46; Listening Devices Act 1984 (NSW); Police Regulation Act 1899; Prisons Act 1952 (NSW), ss 3, 6, 39, 40, 40A, 46; Pt 8; Sch 2; Prisons (Amendment) Act 1988 (NSW)
• Cases Cited: A v State of New South Wales [2007] HCA 10; 230 CLR 500; Ah Yick v Lehmert [1905] HCA 22; 2 CLR 593; Andrews v Marris (1841) 1 QB 3; 113 ER 1030; Antill Ranger & Co Pty Ltd v Commissioner for Motor Transport [1955] HCA 25; 93 CLR 83; Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342; Bell v Western Australia [2004] WASCA 205; 28 WAR 555; Broom v Morgan [1953] 1 QB 597; Butt v Newman (1819) Gow 97; Cameron v Cole [1944] HCA 5; 68 CLR 571; Carratt v Morley (1841) 1 QB 18; 113 ER 1036; Carroll v Mijovich (1991) 25 NSWLR 441; Chicot County Drainage District v Baxter State Bank 308 US 371 (1940); Coleman v Power [2004] HCA 39; 220 CLR 1; Commissioner for Motor Transport v Antill Ranger & Co Pty Ltd (1956) 94 CLR 177 (PC); Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; 53 CLR 220; Commonwealth v Connell (1986) 5 NSWLR 218; Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714; Darling Island Stevedoring and Lighterage Co Ltd v Long [1957] HCA 26; 97 CLR 37; Deacon v Grimshaw (1955) 93 CLR 104; De Bruyn v South Australia (1990) 54 SASR 231; Demer v Cook (1903) 88 LT 629; DMW v CGW [1982] HCA 73; 151 CLR 491; Dowling v Colonial Mutual Life Assurance Society Ltd [1915] HCA 56; 20 CLR 509; Dr Drury's Case (1610) 8 Co Rep 141b; 77 ER 688; Emanuele v Hedley (1998) 179 FCR 290; Enever v The King [1906] HCA 3; 3 CLR 969; Farnell v Bowman (1887) 12 App Cas 643 (PC); Feather v Rogers (1909) 9 SR (NSW) 192; Felton v Mulligan [1971] HCA 39; 124 CLR 367; Gerard v Hope [1965] Tas SR 15; Gregory v Portsmouth City Council [2000] 1 AC 419; Grollo v Palmer [1995] HCA 26; 184 CLR 348; HA Bachrach Pty Ltd v State of Queensland [1998] HCA 54; 195 CLR 547; Hadkinson v Hadkinson [1952] P 285; Haskins v Commonwealth [2011] HCA 28; 244 CLR 22; Henderson v Preston (1888) 21 QBD 362; Higginson v Martin (1677) 2 Mod 195; 86 ER 1021; Hill v Bateman (1726) 2 Strange 710; 93 ER 800; Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21; Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; 8 CLR 330; Isaacs v Robertson [1985] AC 97; James v The Commonwealth [1939] HCA 9; 62 CLR 339; Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51; Kable v State of New South Wales [2010] NSWSC 811; 203 A Crim R 66; Kable v Director of Public Prosecutions (1995) 36 NSWLR 374; Lane v Morrison [2009] HCA 29; 239 CLR 230; Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520; Leerdam v Noori [2009] NSWCA 90; 255 ALR 553; London Corporation v Cox (1867) LR 2 HL 239; Love v Attorney-General (NSW) [1990] HCA 4; 169 CLR 307; MacIntosh v Lobel (1993) 30 NSWLR 441; Matthews v Australian Securities and Investments Commission [2000] FCA 288; 97 FCR 396; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597; Moravia v Sloper (1737) Willes 30; 125 ER 1039; Morrell v Martin (1841) SC 4 Scott NR 300; 3 Man & G 581; 133 ER 1273; Morse v James (1738) Willes 122; 125 ER 1089; New South Wales v Ibbett [2006] HCA 57; 229 CLR 638; O'Chee v Rowley (1997) 142 FLR 1; Olliet v Bessey (1679) Jones T 214; 84 ER 1223; Ousley v The Queen [1997] HCA 49; 192 CLR 69; Painter v Liverpool Oil Gas Light Co (1836) 3 Ad & E 433;111 ER 478; Parker v Commonwealth [1965] HCA 12; 112 CLR 295; Peacock v Bell and Kendal (1667) 1 Wms Saund 73; 85 ER 84; Pelechowski v Registrar, Court of Appeal [1999] HCA 19; 198 CLR 435; Peters v Attorney General (NSW) (1988) 16 NSWLR 24; Posner v Collector for Inter-State Destitute Persons (Victoria) [1946] HCA 50; 74 CLR 461; Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330; R v Governor of Brockhill Prison; Ex parte Evans (No 2) [2001] 2 AC 19; R v Oldham Justices; Ex parte Cawley [1997] QB 1; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Ltd [1970] HCA 8; 123 CLR 361; R v Unger [1977] 2 NSWLR 990; Re Macks; Ex parte Saint [2000] HCA 62; 204 CLR 158; Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) [1995] HCA 31; 184 CLR 620; Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511; Residual Assco Group Ltd v Spalvins [2000] HCA 33; 202 CLR 629; Robertson (1997) 92 A Crim R 115; S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549; 143 FCR 217; Sirros v Moore [1975] QB 118; Street v Hearne [2007] NSWCA 113; 70 NSWLR 231; Thomas v Hudson (1847) 16 M & W 885; 153 ER 1450; Tobin v The Queen (1864) 16 CB(NS) 310; 143 ER 1148; United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323; Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; 46 CLR 73; Ward v Murphy (1937) 38 SR (NSW) 85; Williams v Spautz [1992] HCA 34; 174 CLR 509
• Texts Cited: M Aronson and H Whitmore, Public Torts and Contracts (Law Book Co, 1982) pp 148, 151-152; M Aronson, "Misfeasance in Public Office: A Very Peculiar Tort", (2011) 35 Melb UL Rev 1 at 9-15; R P Balkin and J L R Davis, Law of Torts (4th ed, 2009) [25.23]; Burn's Justice of the Peace, 30th ed (1869), vol 1 at 1021; S Kneebone, Tort Liability of Public Authorities (LBC, 1998); NSW Law Reform Commission, Report on Proceedings by and against the Crown (1975) at [13.4]-[13.5], [13.27]; C L Pannam, "Tortious Liability for Acts Performed under an Unconstitutional Statute" (1965-67) 5 Melb UL Rev 113 at 116-117; C L Pannam, "Unconstitutional Statutes and De Facto Officers" (1966) 2 Fed L Rev 37 at 61-62; Sadler, "Liability for Misfeasance in a Public Office", (1992) 14 Syd L Rev 137 at 138; Second Reading Speech, New South Wales Parliamentary Debates, 3rd series, Vol 174, p 4764-4765 (17 March 1983)
• Category: Principal judgment
• Parties: Gregory Wayne Kable - Appellant; State of New South Wales - Respondent
• Representation: Counsel: P W Bates/P G White - Appellant; M J Leeming SC/R H Weinstein SC/ J Shepard - Respondent; Solicitors: Armstrong Legal - Appellant; Crown Solicitor's Office - Respondent
• File Number(s): CA 1996/31364

Decision under appeal

• Jurisdiction: 9111
• Citation: Kable v State of New South Wales [2010] NSWSC 811
• Date of Decision: 2010-07-30 00:00:00
• Before: Hoeben J
• File Number(s): SC 1996/21296

HEADNOTE

[This headnote is not to be read as part of the judgment]

From February to August 1995 the appellant was held in a New South Wales prison in accordance with an order made by a Supreme Court judge, on an application by the Director of Public Prosecutions, purportedly under the Community Protection Act 1994 (NSW). That Act permitted a detention order to be made in respect of the appellant (and no one else) if a judge were satisfied that he was likely to commit a serious act of violence and it was appropriate to hold him in custody. The appellant successfully challenged the constitutional validity of the Act in the High Court. The High Court held that the Act was inimical to the exercise of judicial power. It was wholly invalid, as were all of the steps taken under it.

In 1996 the appellant commenced the current proceedings, seeking damages arising from the conduct of the State and its officers in bringing proceedings against him and for detaining him for a period of six months solely on the basis of the detention order made under the invalid Act.

On 9 November 2009 a trial commenced before Hoeben J. The claim involved three causes of action, being abuse of process, malicious prosecution and false imprisonment. Hoeben J held that there was no case to go to a jury in respect of any of the three causes of action.

On 1 November 2010 Mr Kable appealed from that decision, as of right, to this Court. The issues for determination on appeal were whether the trial judge erred in dismissing the claim in respect of:

(i) malicious prosecution,

(ii) abuse of process, and

(iii) false imprisonment, and in particular:

(a) whether the order protected the State from liability, and

(b) whether the persons giving effect to the order enjoyed protection from liability.

The Court held, allowing the appeal in part:

In relation to (i) and (ii)

(per Basten JA, Allsop P, Campbell and Meagher JJA and McClellan CJ at CL agreeing)

1. There was no basis for finding that the Director of Public Prosecutions commenced the proceedings for any purpose other than that revealed by the legislation, nor that, applying the standards contained in the Community Protection Act, there were not reasonable grounds for seeking the order provided by the Act. The possibility that the Act exceeded the constitutional powers of the legislature could not of itself turn otherwise legitimate proceedings into a malicious prosecution: [111]-[112]

A v State of New South Wales [2007] HCA 10; 230 CLR 500 applied.

2. Malice on the part of the Parliament could not be established. It is not open to a litigant to impugn the motives of the Parliament. To provide compensation for those who suffer from a purported, but unconstitutional, legislative act is to confer a right to compensation based on unconstitutionality, in the absence of any common law tort: [114]

Bill of Rights 1688 (Imp); O'Chee v Rowley (1997) 142 FLR 1; Street v Hearne [2007] NSWCA 113; 70 NSWLR 231; James v The Commonwealth [1939] HCA 9; 62 CLR 339 applied.

In relation to (iii)(a)

(per Allsop P, Campbell and Meagher JJA and McClellan CJ at CL agreeing)

3. Neither the enquiries as to whether the making of the orders was an act of a judicial character and whether the orders were judicial orders, nor the conclusions that they were, is open to this Court. The High Court has decided these questions: [17]

Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 applied, Residual Assco Group Ltd v Spalvins [2000] HCA 33; 202 CLR 629; Haskins v Commonwealth [2011] HCA 28; 244 CLR 22 referred to.

4. The conception of an order of a superior court carrying with it the presumptions of jurisdictional authority and validity has within it the further assumption of the judicial character of the act of making the order. The order of the Court did not have the attendant characteristic of validity as an order of a superior court of record, until set aside: [18], [21]

Love v Attorney-General (NSW) [1990] HCA 4; 169 CLR 307 applied, Ousley v The Queen [1997] HCA 49; 192 CLR 69; Grollo v Palmer [1995] HCA 26; 184 CLR 348 referred to.

(per Basten JA)

5. The principle that an order of a superior court has effect until set aside depends on the order being made in the exercise of judicial power by a superior court: [139]-[141], [155]-[160]

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597, Pelechowski v Registrar, Court of Appeal [1999] HCA 19; 198 CLR 435; United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323; Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342; Love v Attorney-General (NSW) [1990] HCA 4; 169 CLR 307 applied; Peters v Attorney General (NSW) (1988) 16 NSWLR 24 referred to.

6. The order was an invalid non-judicial order, and was not rendered an exercise of judicial power by the exercise of federal judicial power in determining the constitutional challenge to the Community Protection Act: [149]-[153]

Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 applied; Residual Assco Group Ltd v Spalvins [2000] HCA 33; 202 CLR 629; Felton v Mulligan [1971] HCA 39; 124 CLR 367; referred to; Re Macks; Ex parte Saint [2000] HCA 62; 204 CLR 158 distinguished.

In relation to (iii)(b)

(per Allsop P, Campbell and Meagher JJA and McClellan CJ at CL agreeing)

7. There is no basis for extending the protection of an officer from tortious liability when enforcing a judicial order of a court, valid on its face, to an order which is a wholly invalid exercise of non-judicial power of the kind described by the High Court in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51: [42]

Robertson (1997) 92 A Crim R 115 distinguished.

8. Because the gaoler required the statutory protection of a provision of a statute such as Prisons Act 1952 (NSW), s 46, the operation of the Law Reform (Vicarious Liability) Act 1983 (NSW), s 10, will mean that the State is vicariously liable: [57]

(per Basten JA)

9. Given the statutory protection once provided by the Constables Protection Act 1750 (Imp) and the Prisons Act 1952 (NSW), it is implausible that any common law principle now operates to provide protection in respect of the execution of orders purportedly made under statutory authority (and no other authority): [164]-[165]

Love v Attorney-General (NSW) [1990] HCA 4; 169 CLR 307 applied.

10. The Law Reform (Vicarious Liability) Act 1983 (NSW), s 8 imposes vicarious liability on the State for conduct which would have been a tort, absent statutory protection. Further, s 8 removed the State's immunity for the acts of officers exercising independent functions. Whatever statutory protection the gaoler may have enjoyed did not enure to the benefit of the State, by operation of s 10: [166], [170]

Judgment

1 ALLSOP P: I have read the reasons of Basten JA. I agree with his reasons as to abuse of process and malicious prosecution. I also agree in substance with his reasons as to false imprisonment. Thus, I agree with the orders which his Honour proposes. Given the importance of the conclusion on the claim for false imprisonment and of the reasons therefor, I would prefer to express in my own words why this claim should not be struck out.

2 The first matter to keep firmly in mind in considering the operation of the law in Australia, both general and statutory, is that it takes its place and shape by reference to the fundamental law of the Constitution. Thus, when one is considering the content of rules of common law, or the proper construction of statutes, the foundational concepts and demands of the Constitution are ever present as informing, and sometimes shaping, norms: Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520 at 566.

3 In Kable v The Director of Public Prosecutions for the State of New South Wales [1996] HCA 24; 189 CLR 51, orders were made allowing the appeal and setting aside the orders of this Court. In place of those orders the appeal to the Court of Appeal was allowed, and the order of Levine J was set aside with consequential costs orders. The decision of the majority (Toohey, Gaudron, McHugh and Gummow JJ) was that the relevant provisions of the Community Protection Act 1994 (NSW) (the "CP Act") were unconstitutional. The essential reasoning of the four justices for that conclusion of unconstitutionality included reliance upon the proposition that the Supreme Court was not exercising judicial power or authority and was not acting, institutionally, as a superior court but was acting, effectively, in an executive function (beyond that which is permissibly ancillary to the exercise of judicial power), as an instrument of the Executive: Toohey J at 98; Gaudron J at 103-104, 106, 107 and 108; McHugh J at 109, 121-122, Gummow J at 127-128, 132, 133-134, 137, 141 and 143. It is unnecessary to set out in full the views of their Honours. It suffices to refer to the following. Toohey J (at 98) described the CP Act as having an "extraordinary character" and his Honour said that the acts performed by the Court under it were non-judicial functions and were of such a nature "that public confidence in the integrity of the judiciary as an institution ... is diminished". Gaudron J (at 106 and 108) described the proceedings contemplated by the CP Act, despite the attempt to "dress them up as legal proceedings", as "not in any way partak[ing] of the nature of legal proceedings", as "the antithesis of the judicial process" and as "mak[ing] a mockery of [the judicial] process". McHugh J (at 122) described the involvement of the Court as "the exercise of non-judicial functions" and the Court "as the instrument of a legislative plan, initiated by the executive government, to imprison [Mr Kable] by a process that is far removed from the judicial process...". Gummow J (at 132) described the authority purported to be conferred on the Court by the CP Act as "non-judicial in nature [and] repugnant to the judicial process in a fundamental degree." His Honour (at 134) described the CP Act as "an extraordinary piece of legislation" and its form being such as to make the "judiciary ... apt to be seen as but an arm of the executive which implements the will of the legislature."

4 These are not expressions of matters res inter alios acta. These are not findings of fact sought to be utilised impermissibly in another proceeding contrary to the Evidence Act 1995 (NSW), s 91. These are the conclusions of the majority of the High Court justices essential to the reasoning as to the unconstitutionality of the statute in Mr Kable's suit against the Director. The State of New South Wales appeared in Kable by and through the Solicitor General. The reasoning stands as determinative of the character of the "orders" of this Court and of the character of the functions, processes and authority exercised or purported to be exercised by this Court in 1995.

Orders of a superior court of record?

5 The first basis upon which the State of New South Wales relies to defeat Mr Kable's claim for false imprisonment is that the orders of the Court that led to his incarceration, until Grove J refused to make an order continuing his imprisonment, were orders of a superior court of record and thus valid and effective until set aside. To use a convenient legal label, the orders were voidable and not void. Thus, judged by reference to the time when the acts were performed by the gaoler, and vicariously the State, the imprisonment of Mr Kable was lawful, being supported by a then valid and subsisting order. This argument depends for its success on the ascription of this consequence to an order under the CP Act.

6 The character of an order of a superior court of record such as the Supreme Court of New South Wales is that it has effect until set aside: Cameron v Cole [1944] HCA 5; 68 CLR 571 at 590-591, Re Macks; Ex parte Saint [2000] HCA 62; 204 CLR 158, and other cases referred to by Gaudron J in Re Macks at 184 [49], fn 80. This is because, at common law, a legal presumption is made about the general jurisdiction of a superior court and the validity of its orders until set aside: Peacock v Bell and Kendal (1667) 1 Wms Saund 73 at 74; 85 ER 84 at 87-88.

7 The Federal Court of Australia is not a court of general jurisdiction, but is a superior court of record. Its jurisdictional authority is circumscribed by the Constitution, ss 75 and 76: Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511; and by the statutes that confer jurisdiction upon it under the Constitution, s 77(i). Nevertheless, the circumscription of its jurisdiction by reference to the terms of ss 75 and 76 of the Constitution did not deny the binding nature of a decision (erroneous in fact: Re Wakim) that the Federal Court had jurisdiction and of an order under that (wrongfully) assumed jurisdiction, until set aside. This was so, not through the direct or naked operation of a common law presumption, but through the conception of a superior court of record as the subject of the operation of ss 71, 76(ii), 77(i) and 51(xxxix), or ss 76(i), 76(ii) and 77(i) of the Constitution: Re Macks at 177-178 [19]-[23], 185-187 [51]-[57], 235-237 [214]-[220], 247-249 [253]-[256] (as to the former) and at 279 [343]-[344] (as to the latter).

8 Although this controversy is one to be quelled within federal jurisdiction (because of the operation of s 76(i) of the Constitution), we are not concerned here with the type of limits of jurisdiction arising out of the reach of ss 75 and 76 of the Constitution as lay at the heart of Re Macks. That is important for at least one reason. The constitutional deficiency under consideration in Re Macks was not concerned with the Federal Court exercising non-judicial power. Rather, it was with the Federal Court exercising judicial power, in the general sense, but beyond that which Ch III of the Constitution permitted Parliament to confer upon it by reference to ss 75 and 76 and to the word "matter". The order of the Federal Court in Re Macks that was valid until set aside was a judicial act, though without constitutionally founded jurisdiction. See generally Kable at 136-137 per Gummow J.

9 In due course, it will be necessary to examine the question whether the binding effect of an order of a superior court until set aside depends upon the order being an exercise of power that is judicial in character or, if non-judicial, being ancillary or incidental to the exercise of judicial power. I do not use the phrase "judicial power" in the sense confined by Ch III of the Constitution: cf Gummow J in Kable at 136-137. Also, the use of the expression is not intended to overlook the distinction made by the Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) in Love v Attorney-General (NSW) [1990] HCA 4; 169 CLR 307 at 321 between the character of the power and acting under the power:

"However, the conclusion that the power to issue warrants pursuant to s. 16 of the State Act is not judicial is not decisive of the question whether or not the act of issuing a warrant is itself judicial."

10 For now, I will assume that question to be answered in the affirmative, and proceed to examine whether the order is a judicial act and whether the making of the order was an exercise of judicial power in the sense above described.

11 In Love, it was necessary to ascertain whether the act of issuing the warrant was judicial in character in order that the effect of the warrant be ascertained. At 318 the Court said:

"It is first necessary, in order to consider the operation of the warrant, to determine whether the act of issuing it is judicial or administrative in nature. If the issuing of the warrant is an administrative act, then the ambit of the warrant must be determined in the light of the scope of the power conferred upon the court by the statute. On that footing the ultimate effect of the warrant depends upon the construction of the power and of the warrant itself. The construction of the warrant may give rise to a question of severance. On the other hand, if the act of issuing a warrant is judicial in nature, then the warrant takes on the attributes of a judicial order. In that event, the appellants argue that the warrants in the present case are judicial orders issued in excess of jurisdiction and as such they cannot be severed or read down. Accordingly, they must be declared void and set aside. That is how the argument runs." (emphasis added)

12 That recitation of the argument by the Court should be qualified by the record of the argument of Mr Handley QC and Ms Beazley, as they then were, set out at 309:

"The warrants were judicial orders .... Accordingly the jurisdiction is to be treated as an addition to the Court's ordinary jurisdiction and all the usual incidents follow .... The declaration made by the Court of Appeal is inappropriate if the warrants are judicial orders. Orders of the Supreme Court cannot be declared void ab initio..." (emphasis added)

13 Thus, the argument in Love involved, in part, the consequence of an order of a superior court being valid until set aside. The question whether the order had that character and whether consequences flowed from it were analysed by reference to whether the act was judicial in character or not. In doing so, their Honours first raised, and then put to one side, the "loose sense" in which one could say it was a judicial act - by its being an instrument issued by a judge of the Supreme Court. That, however, did not stamp it with the character of a judicial order "unless the warrant issues as a result of a determination made by the judge in his or her judicial capacity" (at 319). Their Honours recognised the difficulty of comprehensive definition of judicial power, though its broad elements were identified by Griffith CJ in Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; 8 CLR 330 at 357, and their Honours noted the observations of Kitto J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Ltd [1970] HCA 8; 123 CLR 361 at 374-375 (see Love at 319-320). After considering the exercise of the power, their Honours concluded at 321-322:

"Although the administrative power to issue a warrant is in terms conferred upon the court rather than the several judges of the court, the exercise of the power is essentially administrative in nature. The warrant is the outcome of a complaint upon which the judge must bring his or her judicial mind to bear and decide on the material before him or her whether the warrant should issue. The judge is under a duty to act judicially and to that extent the issue of the warrant is a judicial act but it is not a 'judicial act in the same sense as is an adjudication to determine the rights of parties', to use the words of Windeyer J. in Electronic Rentals. It is not an order inter partes from which a party whose conversations may be overheard has a right of appeal. To adapt the language used in Hilton v. Wells, under s. 16 a judge makes no order and nothing that he or she does is enforced as an order of the court. Therefore, if a warrant is granted, its effect depends entirely upon the State Act." (citations omitted)

14 Having come to that conclusion, the Court said at 322-323:

"Once it is accepted that the warrant is not a judicial order, it becomes an instrument made pursuant to a circumscribed statutory authority."

15 This was a conclusion that the issue of the warrants was not a judicial act and thus not an order of a superior court with the relevant consequences that flow from that.

16 Here, the State pointed to the features of the making of the orders by Hunter J and Levine J that were said to characterise the exercise of the power as judicial and the order as a judicial order. Reference was made to its form as an order of the Court and to the manner in which the judges concerned conducted hearings and referred to material before them in an exercise redolent of judicial activity. In Love, the fact that the power was conferred on the Court was "of limited significance" (Gummow J in Grollo v Palmer [1995] HCA 26; 184 CLR 348 at 389) in the determination of the character of the act. It is a factor that is not determinative.

17 Neither the enquiries as to whether the making of the orders was an act of a judicial character and whether the orders were judicial orders, nor the conclusions that they were, are open to this Court. The High Court in Kable has decided these questions. That is not to impugn the integrity of the judges who undertook these tasks or to overlook the diligence and care with which they attended to the tasks that they considered to be required of them by the CP Act. The descriptions of the character of the power in the CP Act and the functions exercising it in the judgments of the majority in Kable, epitomised by the expressions of the matter set out in [3] above, resolve these questions of the characterisation of the power being exercised and of the acts of exercise of the power. It would be in the teeth of the majority's views in Kable to describe these as judicial orders of a superior court of record or the act of making them judicial, in any relevant sense of judicial capacity. The posited Supreme Court orders here (those of Hunter J and Levine J) had their legal source in the CP Act found to be unconstitutional. The decision of the High Court in Kable was to the effect that the CP Act was (and always was) invalid and of no operative effect to create or affect rights or obligations or to vest lawful authority in a court to act pursuant to it: Residual Assco Group Ltd v Spalvins [2000] HCA 33; 202 CLR 629 at 653 [58]-[59] and cases there cited; Haskins v Commonwealth [2011] HCA 28; 244 CLR 22 at 847-848 [45]-[46]. For the above reasons, the orders cannot be characterised as judicial orders or the result of any exercise of judicial power.

18 Does this last conclusion deprive them of the incident of orders of a superior court of record: that is valid until set aside? The reasoning in Love, to which I have already referred, gives an affirmative answer to this question. If an act of a court, including a superior court, is not relevantly of a judicial character but administrative (and not properly ancillary to the exercise of judicial power), it falls to be analysed otherwise than by reference to the attributes of a judicial order and only by reference to the authority conferred by the underlying Act. In this case, the latter was no authority at all. This conclusion is implicit in what I might call the Cameron v Cole cases. They are all cases concerning orders of courts. No issue arose in most of them as to whether an order of the court was judicial in character. In almost all cases that question will go without saying; after all, that is what courts do in their function of exercising the judicial arm of government. In Australia, this power is exercised as part of an integrated court system, recognised by, and tied into, the operation of the Constitution. The power is of a distinctive kind, involving the application of judicial method to the resolution of disputes, by reference to irreducible conceptions of fairness and justice. That distinctive power provides the foundation for the carrying on of the third branch of government in resolving disputes and declaring the law, and for the confidence of the public (the society served by the polity's government, including its judicial branch) that that distinctive power is exercised impartially and independently. Judicial power is not limited to the notion of jurisdiction, that is, the authority to decide. As the Court said in Love, judicial power is not susceptible of comprehensive definition. Whatever may be the elements of essence and context that lead to the insusceptibility of such institutional power in society to a priori definition, the conception of an order of a superior court carrying with it the presumptions of jurisdictional authority and validity has within it the further assumption of the judicial character of the act of making the order.

19 In Ousley v The Queen [1997] HCA 49; 192 CLR 69 at 100-1 and 107, McHugh J said:

"A warrant issued under the Act is far removed from the exercise of the judicial power of the Supreme Court, the County Court and the Magistrates' Courts of Victoria. Its issue is an administrative, not a judicial act. In Love v Attorney-General (NSW), this Court held that a judge considering an application for a warrant under legislation similar to the Act does not perform a judicial function and is bound to act judicially only in the sense that he or she must act in a just and fair manner and with judicial detachment. Warrants issued under the Act cannot be distinguished from the warrants considered in Love.

Once the issuing of a warrant is classified as an administrative act, a person affected by that act may seek judicial review of it and have it declared void or set aside by an appropriate court or tribunal. Furthermore, since the prevailing theory is that an administrative act or order made outside jurisdiction is void, a litigant, affected by the act or order, may challenge it collaterally. In Posner v Collector for Inter-State Destitute Persons (Vict), Dixon J pointed out that:

'when a party is entitled as of right upon a proper proceeding to have an order set aside or quashed, he may safely ignore it, at all events, for most purposes. It is, accordingly, natural to speak of it as a nullity whether it is void or voidable, and, indeed, it appears almost customary to do so.'

...

In Carmody v Mackellar [(1996) 68 FCR 265], a case concerned with the issue of warrants pursuant to the Customs Act 1901 (Cth) and the Telecommunications (Interception) Act 1979 (Cth), Merkel J expressed the view, correctly in my opinion, that Love removed any previous doubt about a trial judge's jurisdiction to entertain a collateral attack on the issue of a warrant under those two Acts or similar legislation. His Honour attributed that doubt at least in part to 'the special position of judicial or court orders, particularly in a superior court of record'. Merkel J quoted the following statement made by this Court in Love [at 322-323]: '[o]nce it is accepted that the warrant is not a judicial order, it becomes an instrument made pursuant to a circumscribed statutory authority.'

His Honour went on to say:

'it must be open to a trial court in which the issue of validity ... arises, to hear and determine that issue ... The fact that the warrant was issued by a judicial officer is of no relevance to the broad jurisdiction of the trial court to determine that there has been jurisdictional error.'

...

In the case of superior courts, the common law presumed until the contrary was shown that a judicial order had been made regularly." (emphasis added; some citations omitted)

20 The description by McHugh J in the last extract of the kind of order that carries the presumption of regularity as "judicial" flowed from his Honour's reasoning, which was based on the reasoning in Love. See also in Ousley, Toohey J at 80, Gaudron J at 87, Gummow J at 131 and Kirby J (in dissent) at 145. See also Grollo v Palmer at 360 and 389.

21 The order of the Court did not have the attendant characteristic of validity as an order of a superior court of record, until set aside. That basis of protection of the State fails.

A principle at common law protecting anyone who relies on the order of the Supreme Court here?

22 The second basis upon which the State relies to defeat Mr Kable's claim for false imprisonment is the existence, it was submitted, of a common law principle that, whether or not the order was of a superior court, persons who obey court orders are protected from suit. The breadth of the proposition makes one immediately pause for thought, in particular in the light of what was said by Simpson ACJ in Feather v Rogers (1909) 9 SR (NSW) 192 at 197:

"It is no doubt very hard upon police officers who are bound to execute the warrants of Justices, that they should be made liable for so doing on the ground that the Justice issuing the warrant exceeded his jurisdiction. It is very hard on laymen that they should have to take the risk of the warrant being irregular. It is more important, however, that the law should be upheld, notwithstanding the liability of constables and other persons.

It was because of this hardship that the Act 24 Geo. II. c. 44, s. 6, was passed".

23 The statute mentioned by Simpson ACJ was the Constables Protection Act 1750 (the "1750 Act") which by s 6 gave protection to "any constable, headborough or other officer, or ... any person or persons acting by his order and in his aid, for any thing done in obedience to any warrant under the hand or seal of any justice of the peace". The statute was repealed in New South Wales by the Imperial Acts Application Act 1969 (NSW).

24 Before examining whether this rule exists, and, if it does, its reach and underpinnings, it is necessary to dispose of a related, but clearly distinct principle, which is not determinative of the present position. Whilst no one can be liable under an unconstitutional or repealed statute, if a person be convicted before unconstitutionality is recognised or before repeal occurs, liability merges in and depends on the conviction and not the statute, and does not lapse. The operation of the conviction does not depend upon the law creating the offence, but upon the judgment or sentence of the competent (not necessarily superior) court: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; 46 CLR 73 at 106; R v Unger [1977] 2 NSWLR 990 at 995. The legal theory and policy underpinning this approach was lucidly explained by Street CJ in Unger at 995-996-stability in the operation of the legal system, but in a manner that facilitates the incremental moulding of the law in the light of changing social context; finality and stability in past decisions permitting flexibility in the development of legal principle. We are not dealing here, however, with conviction according to "the authority belonging to a judgment or sentence of a competent court" (Dignan at 106) here. Rather, we are dealing with the non-judicial incarceration of a person, without valid statutory foundation, "dressed up" as legal proceedings, in a process repugnant and antithetical to legal proceedings and to the exercise of judicial power.

25 The posited common law principle, having its source in Dr Drury's Case (1610) 8 Co Rep 141b at 143a; 77 ER 688 at 691, is that if acts are done in accordance with a judicial order, later set aside, they are protected as "acts done in the execution of justice, which are compulsive". This passage was cited in Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; 53 CLR 220 at 225, where Rich, Dixon, Evatt and McTiernan JJ said:

"Acts done according to the exigency of a judicial order afterwards reversed are protected: they are 'acts done in the execution of justice, which are compulsive' (Dr. Drury's Case). And proceedings which, although based upon a judgment, are brought to completion before its reversal are not avoided. For 'collateral acts executory are barred, but not collateral acts executed' (Dr. Drury's Case)." (citations omitted)

26 In MacIntosh v Lobel (1993) 30 NSWLR 441, Kirby P said at 459-60:

"It is a well-known principle of the common law that a judgment reversed is the same as no judgment: see, eg, Coleridge J in R v Drury (1849) 3 Car & K 190 at 199; 175 ER 516 at 520. Equally, acts done according to the exigency of a judicial order, afterwards reversed, are protected. They are 'acts done in the execution of justice, which are compulsive': see Commissioner for Railways (New South Wales) v Cavanough (1935) 53 CLR 220 at 225. At least in respect of the orders of a superior court, proceedings which are based upon a judgment, later reversed, and which are brought to completion before its reversal are not thereby avoided: see Re Goldburg (No 2); Ex parte Page [1912] 1 KB 606 at 610."

27 The above expressions of principle can be seen to be rooted in the order and underlying process being judicial.

28 In London Corporation v Cox (1867) LR 2 HL 239 at 269, Willes J said the following on the position of the garnishee, who pays under compulsion of the attachment issued without jurisdiction, at the suit of his own creditor:

"In such a case, although the proceeding in the Mayor's Court was wrong, yet the garnishee, not being party or privy to the wrong, and paying honestly in obedience to process of law apparently valid, has the same protection as an officer who executes process apparently regular, without knowing of the want of jurisdiction; and who, not being in a condition to resist, is protected, not because the proceeding was well founded, but notwithstanding it was ill founded: Westoby v. Day; Wood v. Dunn. This very distinction between the Plaintiff in the inferior Court and the garnishee, 'who is a third party, and no way privy,' was pointed out in the case relied upon by Mr. Pollock: Banks v. Self." (citations omitted)

29 Whilst Willes J referred to the apparent validity of the process, it was nevertheless the "process of law" that was being referred to. The invalid orders were garnishee orders, invalid exercises of power judicial in character or sufficiently close and connected to be described as processes of the law.

30 Posner v Collector for Inter-State Destitute Persons (Victoria) [1946] HCA 50; 74 CLR 461 concerned an invalid order for maintenance. The facts were summarised by Latham CJ at 465-6 as follows:

"On 16th January 1946 Mordka Hirsch Posner was served in Victoria with a certificate of a maintenance order which had been made against him in Perth, Western Australia, on 24th October 1941. On the same day a demand was made upon him by the Collector for Inter-State Destitute Persons for payment of £438 arrears due under the order. On 18th January 1946 a summons (in the form prescribed by regulations made under the Maintenance Acts 1928-1938 (Vict.)) was issued calling upon him to show cause why he should not be imprisoned for failure to pay moneys in accordance with the order. Upon the hearing of the summons Posner satisfied the Court of Petty Sessions, Melbourne, that he had not been served with any process relating to the proceedings in Western Australia and that he had become aware only on 16th January 1946 of the order which had been made in Perth in 1941. The court was of opinion that the order was a nullity, but that under the Victorian Act it was bound to give effect to it, and it accordingly ordered that in default of payment of £440 arrears of maintenance the defendant Posner should be imprisoned for six months, the money to be paid in instalments of £150 forthwith and £2 5s. per week. The defendant took proceedings by way of order to review. Gavan Duffy J. held that the Western-Australian order was a nullity but that nevertheless it was enforceable in Victoria by reason of the provisions of the Maintenance Acts. Posner now appeals to this Court from the order of the Supreme Court discharging the order nisi to review and affirming the decision of the magistrate."

31 Starke J said at 476:

"A party, however, executing the process of an inferior court in a matter beyond its jurisdiction is liable to action and cannot justify under such process whether he knows the defect or not but the magistrate is only liable if he knew of the defect of jurisdiction (Calder v. Halket [(1840) 3 Moo PC 28 at 78; 13 ER 12 at 36]; Houlden v. Smith [(1850) 14 QB 841; 117 ER 323]; Mayor etc. of London v. Cox [(1867) LR 2 HL 239 at 263]). And an officer executing and obeying such process is protected (ibid)."

32 The references by Starke J are consistent with the principle, enunciated as to officers, being referable to the exercise of judicial acts.

33 Further, in Posner, Dixon J said at 481-2:

"Another rule was expressed by Denman C.J. in Andrews v. Marris [(1841) 1 QB 3 at 16; 113 ER 1030 at 1036]. Speaking of one of the defendants, his Lordship said:-'He is the ministerial officer of the commissioners, bound to execute their warrants, and having no means whatever of ascertaining whether they issue upon valid judgments or are otherwise sustainable or not. There would therefore be something very unreasonable in the law if it placed him in the position of being punishable by the Court for disobedience, and at the same time suable by the party for obedience to the warrant. The law, however, is not so. His situation is exactly analogous to that of the sheriff in respect of process from a Superior Court; and it is the well known distinction between the cases of the party and of the sheriff or his officer, that the former, to justify his taking body or goods under process, must show the judgment in pleading, as well as the writ; but for the latter it is enough to show the writ only; Cotes v. Michill [(1682) 3 Lev. 20; 83 ER 555]; Moravia v. Sloper [(1737) Willes 30 at 34; 125 ER 1039 at 1041]. It was said, indeed, for the plaintiff, that these and the numerous other authorities which might be cited to the same effect all went upon the principle that the proceeding, however irregular, was the Act of the Court.' Thus a conviction or order might be inefficacious in favour of a party but might have some operation as against the other party in favour of officers etc."

34 The principle expressed by Denman CJ, and applied by Dixon J, was directed to an act of the court, that is the judicial act or proceeding, being the order of the court which the officer was bound to execute.

35 In such cases, the courts are protecting third parties such as court officers or garnishees from the consequences of an invalid order (not being limited to an order of a superior court). Implicit and explicit in them is the protection of the authority of judicial proceedings. Further, there is every reason to consider that an officer of a court should be protected by his actions in obedience to an order of the court of which he is either part or an officer. Orders directed to police or gaolers in the form of a court order, not issued in the course of judicial process, but having the true legal character of an executive warrant, which is wholly lacking authority, do not stand as necessarily bringing the same protection to those who obey them as might be thought appropriate to officers of the court itself, even in such circumstances. It is unnecessary to explore this possible distinction. An invalid warrant gives a policeman no protection from the consequences of invasion of common law rights of person or property; it is statute that protects him: Feather v Rogers and Carroll v Mijovich (1991) 25 NSWLR 441 at 446-447 and 457.

36 In Hadkinson v Hadkinson [1952] P 285 at 288, Romer LJ (with whose judgment Somervell LJ agreed) said in the context of the disobedience of the appellant to an order of the divorce court about not removing the child of the marriage from the jurisdiction:

"It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. 'A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it. ... It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void-whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.' (Per Lord Cottenham L.C. in Chuck v. Cremer.)" (citations omitted)

37 It is unnecessary to explore the validity, for all purposes, of this expression of the matter, in particular in respect of orders of inferior courts that lack jurisdiction or authority. The validity of his Lordship's expression of the matter as to orders of superior courts of record may be readily accepted. The report does not make clear whether the original order was of a superior court. Of course, it would have been had it been made by the then Probate, Divorce and Admiralty Division of the High Court of Justice. There is, however, implicit in the expression of the matter by Romer LJ, the judicial character of the order. The kind of constitutional circumstances and considerations relevant here are unlikely to arise in England and certainly were not present in the case before the Court of Appeal in Hadkinson.

38 In Sirros v Moore [1975] QB 118 police officers obeyed an oral order of a Crown Court judge and took into custody an alien after he had left court on the dismissal of his appeal from an order of a magistrate recommending deportation. The alien sued the judge and the police officers. The judge was held to have immunity. The police carrying out orders directed to them by the judge were likewise protected. Lord Denning at 137 relied on London Corporation v Cox. No reasons were given other than reference to Cox. The Constables Protection Act 1750 was also available. Buckley LJ at 144 found the actions of following the instructions of the judge justifiable without expressing any reasons. The position of the police in Sirros can be equated with that of officers of the court. They were acting under the immediate orders of a judicial officer after the exercise of judicial process.

39 The passage of Romer LJ in Hadkinson was cited with approval by Lord Diplock in Isaacs v Robertson [1985] AC 97 at 101-2, but in a context where the Privy Council was dealing with the orders of a superior court, a court of "unlimited jurisdiction" (at 101). It was also cited with approval by Simon Brown LJ (with whom Scott Baker and Latham JJ agreed) in R v Oldham Justices; Ex parte Cawley [1997] QB 1 at 15-16.

40 The Full Court of the Western Australian Supreme Court, in Robertson (1997) 92 A Crim R 115, in reasons delivered in substance by Steytler J (with which Malcolm CJ and Franklyn J agreed) dealt with an appeal against the dismissal of a claim for false imprisonment against the State of Western Australia by a person who had been sentenced to fines and costs for certain offences and, in lieu of payment, imprisonment. In court, the magistrate pronounced that the two periods of imprisonment of 40 and 43 days were "to be cumulative". The person had also been sentenced to four years gaol for other offences. The person's solicitor advised him that he need not pay the fines since his prison terms for non-payment, though cumulative as between themselves, would be concurrent with the four year sentence. This was in fact the true intention of the sentence, as found by the trial judge, a proposition not contested on appeal. After a successful appeal against the severity of the four year sentence, the person was kept in custody for a period of days relative to the sentences in default of payment of the fines, and cumulative upon the non-parole period set by the appeal court in respect of the more serious matter. Each of the warrants that had been signed by the sentencing magistrate stated that the periods of detention in default of payment were cumulative, not only upon each other, but also "on any other sentence or sentences which the offender may be undergoing". This went beyond the sentence imposed (as found by the trial judge). Obviously, no error appeared on the face of the warrant to alert the gaoler to the error that had been made by the magistrate. At 122-125 Steytler J reviewed the authorities in connection with a person in the position of a gaoler following the direction contained in a warrant apparently valid on its face. He said:

"It would be an odd result, in a case in which a prison officer was simply enforcing a magistrate's order, if he or she were to be held liable because of the invalidity of the order when the person issuing the order was not so liable, at least in circumstances in which the order was valid on its face.

The courts have generally set their face against this kind of result.

...

[I]t seems to me to be difficult to deny the proposition, when regard is had for existing authority and for legislation in this State, that a prison superintendent may not be held liable for acting on a warrant which is, on the face of it, valid but which later turns out to have been wrongly issued for reasons which had not been known to that superintendent.

...

There is, in this State, no legislative provision which denies the application of the principle to prison superintendents. Indeed, those provisions of the Justices Act to which we were referred in the course of argument tend to support the efficacy of a warrant until set aside by a court of competent jurisdiction. Thus, s 23 of that Act provides that every act done or purporting to have been done by or before a Justice shall be taken to have been done within his jurisdiction without an allegation to that effect unless and until the contrary is shown. (See also ss 22, 36 and 37 of that Act.)

In the circumstances of this case, and in the light of the authorities to which I have referred, it seems to me that, if it be accepted that the warrant was unlawful and subject to being set aside, that did not render unlawful the conduct of the prison superintendent in acting upon the warrant. Rather, the warrant, being ex facie an order of a court of competent jurisdiction, was required to be obeyed by the prison authorities until discharged by a court of competent jurisdiction.

That being so there is no basis for any finding of liability on the part of the Superintendent of the prison in which the appellant was incarcerated."

41 Steytler J then distinguished Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 as a case concerning the wrongful calculation of remission entitlements.

42 The principle that appears to be enunciated in Robertson can be taken as the following: that a prison officer enforcing a judicial order, valid on its face, but in fact legally invalid, of a judicial officer of a court of competent jurisdiction, acts lawfully in, and is not liable in tort for, complying with it. Implicit in the reasoning of Steytler J and in all the cases referred to by him is that the character of the order of the court is judicial. The Court in Robertson was not dealing with the issue of an executive warrant. True it is that the character of the order here as non-judicial was not apparent on the face of the order, which appeared to be judicial since it was made by the Court. That is no basis, however, for extending the principle enunciated by the Full Court of the Western Australian Supreme Court to an order, in form made by a court, which is in its true character a wholly invalid exercise of non judicial power of the kind described by the High Court in Kable. It was not argued that Robertson was plainly wrong. It can be accepted as dealing with judicial orders made by courts of competent jurisdiction. There is no call from its own terms to extend it to an "order" of the kind and character here. Thus the principle as above enunciated is to be understood as applicable to a judicial order in the sense discussed in Love.

43 Professors Aronson and Whitmore in Public Torts and Contracts (Law Book Company, 1982) doubt the correctness of Sirros v Moore, and doubt the existence of any generalised common law protective principle. Those learned authors, however, at page 152 recognise that there are cases that support the view that the common law's protection of a court officer acting on an apparently valid order or warrant was substantive and not just evidentiary: Higginson v Martin (1677) 2 Mod 195; 86 ER 1021; Olliet v Bessey (1679) Jones T 214; 84 ER 1223; Hill v Bateman (1726) 2 Strange 710; 93 ER 800; Moravia v Sloper (1737) Willes 30; 125 ER 1039; Morse v James (1738) Willes 122; 125 ER 1089; Painter v Liverpool Oil Gas Light Co (1836) 3 Ad & E 433;111 ER 478; Carratt v Morley (1841) 1 QB 18; 113 ER 1036; Thomas v Hudson (1847) 16 M & W 885; 153 ER 1450; Andrews v Marris (1841) 1 QB 3; 113 ER 1030; Demer v Cook (1903) 88 LT 629; Ward v Murphy (1937) 38 SR (NSW) 85 and Gerard v Hope [1965] Tas SR 15. To these cases can be added Henderson v Preston (1888) 21 QBD 362 (Court of Appeal consisting of Lord Esher MR, Lindley and Bowen LJJ) following Olliet v Bessey; and there can also be added the cases referred to by Willes J in Moravia v Sloper at 34-35; 1041-1042.

44 All of these cases concerned the order or warrant issued by a court, implicitly being a judicial act in the course of, or after, judicial proceedings which the officer in his duties was bound to obey: see especially Willes J in Moravia v Sloper at 34-35; 1041-1042. In Painter v Liverpool Gas Co, Lord Denman CJ stated that officers were justified in executing a warrant because they were obliged not to canvass its validity and that Acts of Parliament had been passed for their protection. In Gerard v Hope, Crisp J perceived a restriction on the defence of a constable following an order of an inferior court to orders which the judicial officer had jurisdiction to make. In this respect, Crisp J referred to Morrell v Martin (1841) SC 4 Scott NR 300 at 306; also reported in 3 Man & G 581; 133 ER 1273, Andrew v Marris, Carratt v Morley and Burn's Justice of the Peace, 30th ed (1869), vol 1 at 1021. Certainly the judgment of Tindal CJ in Morrell v Martin supports that limitation. Tindal CJ (at 3 Man & G at 593-597; 133 ER at 1278-1279) said that the action of the justices of the peace in issuing the warrant outside their jurisdiction, as opposed to merely irregularly, was fatal to a plea of justification by the person to whom the warrant was directed. Tindal CJ identified the terms of the statute (the 1750 Act) as indicative of a matter to be dealt with by the Parliament and not (as Steytler J reasoned in Robertson at 125) indicative of the conformance of the common law to the statute.

45 In Olliet v Bessey the Court of King's Bench did not appear so to limit the matter by reference to jurisdiction. Lord Esher in Henderson v Preston relied on Olliet and said at 366:

"In the case of Olliet v. Bessey decided about 200 years ago, it was so held, and from that day to this no action can be found in the books to have been maintained against a gaoler where he acted within the terms of the warrant. That is sufficient to determine this case. Whether the plaintiff had any and, if so, what remedy, is a matter we need not inquire into: in any case this action will not lie. The appeal must, therefore, be dismissed." (citations omitted)

46 Lindley LJ at 366 referred to the fact that the person who issued the warrant had jurisdiction to do so in saying:

"All that one has to do is to read the warrant. What is a governor of a gaol who receives such a warrant to do except to obey it? It is perfectly valid and correct, and is authorized by the Act of Parliament, and issued by persons who have jurisdiction to issue it. It appears to me that the governor obeying that warrant has simply done his duty, and the warrant protects him and is an answer to the action."

47 In Demer v Cook Lord Alverstone CJ in the King's Bench Division found a gaoler liable for acting under an invalid warrant, but not the issuing court officer whose acts were only ministerial following the orders of the judicial officer.

48 The existence of any such common law principle and its boundaries need not be finally decided upon to resolve this case. A number of matters are less than clear, including the place or influence of the 1750 Act as a suppressed premise, the influence of courts protecting their own processes and the extent to which this general rule applies to inferior courts acting without jurisdiction, and the meaning of jurisdiction in this context. For the purposes of the resolution of this appeal, I propose to proceed upon the assumption that the common law provides that, as a general rule, an officer (such as a sheriff or gaoler) obeying a judicial order of a competent court and executing it is protected, even if the order be at that time invalid. Such a rule, however, has never been held to be applicable, or expressed in such terms as require it to be held applicable, to an order whose invalidity is of the character, and for the reasons, found by the majority in Kable. The order here, according to the Court in Kable, is not a judicial order of a superior court of record. The order is not a judicial order at all, and it was made after a process which was the antithesis of judicial proceedings.

49 There is a statutory protection to the gaoler here: the Prisons Act, s 46. It was not argued that this was not applicable. No occasion arises to determine its applicability, as the gaoler was not sued. I will proceed on the assumption that it applies. The determination that the protection does not exist at common law, but does exist in a statutory provision is of the first importance to the liability of the State here. If the gaoler were protected by a principle of common law because he followed the instruction contained in an order of the Supreme Court, there would be no vicarious liability of the State. This follows from the terms of the Law Reform (Vicarious Liability) Act 1983 (NSW) (the "Vicarious Liability Act"), ss 8(1) and 10 and the true nature of vicarious liability.

50 The Vicarious Liability Act, ss 8 and 10 provide as follows:

"8(1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function:

(a) is in the course of the person's service with the Crown or is an incident of the person's service (whether or not it was a term of the person's appointment to the service of the Crown that the person perform the function), or

(b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown.

...

10(1) In this section:

person includes the Crown.

statutory exemption means a provision made by or under an Act which excludes or limits the liability of a person.

(2) For the purposes of determining whether or not a person is vicariously liable in respect of a tort committed by another person, any statutory exemption conferred on that other person is to be disregarded.

(3) Except as provided by this section, nothing in this Act affects a statutory exemption conferred on a person."

51 A question of statutory construction arises as to the phrase "in respect of the tort committed by a person" in s 8(1). On one view of the theory of vicarious liability, the employer is liable "not because the [employee] is liable, but because of what the [employee] has done": Darling Island Stevedoring and Lighterage Co v Long [1957] HCA 26; 97 CLR 36 at 61 (per Kitto J with whom Taylor J agreed at 66; emphasis added). Such a foundation for giving content to the phrase in s 8(1) might lead to the conclusion that the State is vicariously liable for the acts done, being imprisoning Mr Kable under colour of an order which was of an executive character and without statutory foundation or effect, even though the employee gaoler had a defence at common law of acting in obedience to an order by a judicial officer, apparently valid. This would bring into conformity the operation of ss 8 and 10 of the Vicarious Liability Act insofar as the latter excluded the effect or operation of statutory defences and the former by its own terms excluded the effect or operation of common law defences particular to the employee.

52 The views of Kitto J (and Taylor J) have not prevailed. In Darling Island v Long, Fullagar J said at 57:

"The rule is, in my opinion, rightly stated, as it always is, in terms of liability and not in terms of duty. The liability is a true vicarious liability: that is to say, the master is liable not for a breach of a duty resting on him and broken by him but for a breach of duty resting on another and broken by another."

53 Subject to the proper place of Broom v Morgan [1953] 1 QB 597, as to which see Windeyer J in Parker v Commonwealth [1965] HCA 12; 112 CLR 295 at 300-301, the views of Fullagar J would appear to have prevailed: Cowell v Corrective Services Commission of NSW (1988) 13 NSWLR 714 at 731-32 (Clarke JA with whom Priestley JA agreed); Commonwealth v Connell (1986) 5 NSWLR 218 at 223 (Glass JA); De Bruyn v South Australia (1990) 54 SASR 231 at 235 (King CJ); and semble Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 at [34] and Parker v Commonwealth at 301; and cf New South Wales v Ibbett [2006] HCA 57; 229 CLR 638 at [6] and [36].

54 If the "liability" theory (as opposed to "conduct" theory) is accepted, as on the balance of authority it should be, there remains the need to deal with statutory exemptions or immunity from liability of torts otherwise committed. In the absence of a provision such as s 10, the existence of a particular statutory exemption or immunity in the employee, if it relieved the employee of liability, would on this hypothesis also relieve the Crown of vicarious liability: see Bell v Western Australia [2004] WASCA 205; 28 WAR 555. A legislative choice was made not so to relieve the State in these circumstances: s 10.

55 This construction of s 8 as requiring the liability of the Crown employee (subject to the operation of a statutory exemption) before the State can be found vicariously liable accords with the interpretation of the Crown Proceedings Act 1972 (SA) in De Bruyn by King CJ at 235.

56 Thus, if the gaoler is not liable because of a principle of the common law, the State is not liable vicariously. On the other hand, if the gaoler requires the statutory protection of a provision of a statute such as s 46 of the Prisons Act, the operation of the Vicarious Liability Act, s 10, will mean that the State is vicariously liable.

57 Here, for the reasons already given, the order was not judicial in character. The order had no force or effect because, as an executive act, it took its force only from the statute which is and was always unconstitutional and of no effect. On the assumption, and to the extent, of a principle at common law as set out above, it does not extend to a non-judicial order not arising from judicial process. That said, at the time the order was delivered to the gaoler the unconstitutionality was not patent, since the order was unquestionably made by the Supreme Court, and apparently regularly, the constitutionality of the Act having been decided by a Supreme Court judge, later upheld in the Court of Appeal, in the undoubted exercise of judicial power under s 76(i) of the Constitution and s 39(2) of the Judiciary Act 1903 (Cth). Those considerations go, however, to a decision to extend the assumed common law principle to a non-judicial order issued after non-judicial process.

58 Any protected entitlement to act on and obey the order, if it exists at common law, is not compelled by the physical form of the order: Love. As an order arising from the purported exercise of invalid executive power antithetical to the judicial process and undermining of the Court's institutional place in the administration of justice under the Constitution, subject to one matter, there appears no reason, sourced in the constitutional considerations that led to invalidity, for extending protection at common law to a gaoler acting on the order in good faith, in circumstances where statutory protection exists. That one matter is an underlying policy consideration. The policy would rest on stability and confidence in the judicial system and in the orders issued by courts. It might be thought that, even in the circumstances attending the decision in Kable and the "extraordinary" legislation, the principle (in so far as it exists) should be extended to orders that were not judicial acts and were not the product of judicial process but of process that was antithetical to judicial process and judicial power, in order that confidence in orders issued by the Supreme Court not be undermined.

59 Such extension of any such common law principle concerning protection to those who act in compliance with an order made by an apparently competent court must be driven by an evaluative choice or policy.

60 A refusal to extend the assumed common law principle may be seen as a vindication of a constitutional boundary or guaranteed right. Here, the vice of the CP Act was described by the majority of the High Court in uncompromising terms. The Act threatened basal concepts of governmental and constitutional organisation, in particular, the confidence in the judicial branch of government and the protection of the public under the rule of law. To put the matter thus reveals the vice of the statute in co-opting the Court for purposes inimical to its structure and integrity and to its constitutional function. To adapt the words of Kirby J in Residual Assco at 655 [64], citing C L Pannam, "Unconstitutional Statutes and De Facto Officers" (1966) 2 Fed L Rev 37 at 61-62:

"'[T]here may be situations in which public inconvenience and the frustration of legitimate reliance' on an apparent but unconstitutional law 'must give way to the retroactive invalidation of official acts in order to vindicate a constitutional boundary, or to guarantee a constitutional right'."

61 The relevant constitutional boundary or guarantee of a constitutional right here is that which was enunciated in Kable. Its importance had both public and private elements. It denied the orders of the Court their character as judicial acts and the character of their making as judicial process, since it was a process antithetical to the judicial process. This was in furtherance of the protection of the fundamental institutional character of the Supreme Court and of the administration of justice. It was also in furtherance of the protection of the fundamental common law right of Mr Kable not to be incarcerated (without an adjudication of criminal guilt, or otherwise than according to law) by the manifestation of the will of the Executive through the impermissible attempted use of the instrument of the Supreme Court.

62 In these circumstances, it might be thought appropriate to fashion the common law in such a way that accorded with the constitutional principles, not in a way that inverted them. A conclusion that the orders for detention here (characterised as non-judicial or executive in character and made after a process antithetical to the judicial process and issued without lawful statutory authority) provide a common law basis for protection (and thus to have a form of validity) must rest upon the judicial character of the institution making them. Yet this is the very institution constitutionally undermined by the invalid provisions for the making of the orders. Such an approach may be described as counter intuitive, and as inverting the operative constitutional principles. On the other hand, not to extend the assumed common law principle to provide protection to third parties who obey even these kinds of orders may be seen to undermine the authority of the Court, by casting doubt upon whether those to whom orders are directed should follow them. This might be seen to compound the harm done by the passing of the Act itself and acting under it. If s 46 applies in these circumstances, the gaoler has, however, adequate and effective statutory protection.

63 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.

64 It is unnecessary in these circumstances to consider whether the State could be liable for false imprisonment otherwise than vicariously through the liability of the gaoler (ignoring, as one must, the Prisons Act, s 46, for the position of the State). The argument did not proceed along these lines. Also, the question may involve Constitutional conceptions that may not have been covered by the notices issued under the Judiciary Act 1903 (Cth), s 78B.

65 Section 28 of the CP Act sought to protect the State against the consequences of steps taken under the Act. In Kable, Toohey J at 99 found "the Act" invalid. Gaudron J at 108 found s 5(1) invalid, as well as "the remaining provisions of the Act which serve no purpose other than to carry s 5(1) into effect". McHugh J at 124 found "the Act ... invalid". Gummow J at 144 made specific reference to s 28 and said it fell along with all other relevant provisions.

66 For these reasons, the claim in false imprisonment should not have been dismissed.

67 BASTEN JA: From February to August 1995 the appellant, Gregory Wayne Kable, was held in a New South Wales prison. The supposed justification for his detention was an order made by a judge of the Supreme Court on an application by the Director of Public Prosecutions under the Community Protection Act 1994 (NSW). That Act permitted a detention order to be made in respect of Mr Kable (and no one else) if a judge were satisfied that he was likely to commit a serious act of violence and it was appropriate to hold him in custody.

(1) Issues

68 Mr Kable challenged the constitutional validity of the legislation. He was successful in the High Court: Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51. Judgment was delivered on 9 September 1996, more than a year after the expiration of the first detention order made by Levine J, the Supreme Court (Grove J) having refused to make a further order. The present proceedings involve claims for damages arising from the conduct of the State and its officers in bringing proceedings against him and for detaining him for a period of six months, solely on the basis of the detention order made under the invalid Act.

69 The present proceedings were commenced promptly in 1996. They have, however, had a somewhat fraught procedural history. A trial commenced on 9 November 2009 before Hoeben J with the identification of six questions which, it was agreed, his Honour should determine before taking any other steps in the trial. The answers to those questions led to a judgment for the defendant: Kable v State of New South Wales [2010] NSWSC 811; 203 A Crim R 66 (30 July 2010).

70 By the time of the hearing, the claim had been crystallized by reference to three causes of action, namely:

(i) abuse of process;

(ii) malicious prosecution, and

(iii) false imprisonment.

The primary judge held that there was no case to go to a jury in respect of any of the three causes of action. In the result, no jury was empanelled and judgment was given in favour of the State of New South Wales. On 1 November 2010 Mr Kable appealed against the orders of Hoeben J, as of right, although out of time.

71 For reasons given below, the claims in respect of abuse of process and malicious prosecution were properly struck out. On the other hand, the claim in respect of false imprisonment was maintainable and accordingly the orders made by the primary judge must be set aside.

72 Procedural difficulties continued to haunt the proceedings in this Court. The primary judge rejected the claim of false imprisonment because, at the time of the appellant's detention, there was in place an order of a superior court which, according to its terms, warranted and required his detention. In the course of the appellant's argument, on the first day of the hearing of the appeal, it became apparent that the appellant sought to overcome that obstacle by relying upon the reason for the invalidity of the legislation which supported the order, namely that the Community Protection Act sought to confer on the Supreme Court a jurisdiction which was incompatible with the exercise of the judicial power of the Commonwealth and was thus inconsistent with the terms of Chapter III of the Constitution. Whether that circumstance meant that, contrary to general law principles, the purported order could not in its terms provide a justification for the detention of the appellant, or that the setting aside of the order removed, retrospectively, any justification which otherwise existed, was a matter arising under, or involving the interpretation of, the Constitution. Alternatively, it could be seen to raise an issue as to the effect of the orders made by the High Court, setting aside the detention order and dismissing the Director's application, which in turn involved the effect of relief arising under the Constitution. Accordingly, although the step had not been taken at trial or prior to the hearing on appeal, the Court required that notices addressing these contentions be issued under s 78B of the Judiciary Act 1903 (Cth) to the various Attorneys General. The matter was adjourned to permit that step to be taken and to allow a reasonable time for the Attorneys to respond.

73 One further procedural step requires explanation. This Court was originally constituted as a five judge bench because it was understood that there might be a challenge to aspects of the judgments of the Court in Leerdam v Noori [2009] NSWCA 90; 255 ALR 553, which held that a claim in tort for abuse of process could not lie against a person who was not a party to proceedings: Spigelman CJ at [29]-[44], Allsop P agreeing at [65] and Macfarlan JA agreeing at [125]-[126]. The present proceedings were originally commenced against the Director of Public Prosecutions (who was the moving party for the detention order) and the State. The Director was removed on the understanding that the State would bear responsibility for any liability of the Director. However, the appellant sought to impose liability directly on the State, possibly because there was no factual basis for asserting an improper purpose on the part of the Director. In the event, it has proved unnecessary to reconsider this aspect of Leerdam and, by implication, the decision of the Full Court of the Federal Court in Emanuele v Hedley (1998) 179 FCR 290 (Wilcox, Miles and R D Nicholson JJ) on which Spigelman CJ relied at [32].

(2) Procedural history: causes of action and separate questions

74 The circumstances which gave rise to these proceedings may be briefly summarised. On 5 September 1989 the appellant was arrested following the death by stabbing of his wife. Originally charged with murder, he pleaded guilty to manslaughter on the basis of diminished responsibility and, on 1 August 1990, was sentenced to imprisonment for a period of 5 years and 4 months dating from 5 September 1989 and terminating on 4 January 1995. He was eligible for release on parole after serving 4 years, but parole was not granted. During the course of his imprisonment he wrote a number of threatening letters to persons whom he believed to be responsible for denying him access to his children. He was in fact charged with respect to the letters and was, for a period, held in custody in respect of those charges, bail having been refused. On 30 December 1994 Hunter J made a detention order under the Community Protection Act, but it had no effect because the appellant was not otherwise entitled to be released. When, on 23 February 1995, Levine J made a detention order under the Community Protection Act, he also granted the appellant bail in respect of the outstanding charges, to allow the impugned detention order to take effect. Accordingly, the period during which the appellant was detained under the invalid detention order commenced on 23 February 1995. (The outstanding charges were later permanently stayed.)

75 The detention order was in the form of a document headed "In the Supreme Court of New South Wales, Sydney Registry, Common Law Division", in proceedings between the Director of Public Prosecutions and Mr Kable. The substance of the order was as follows:

"THE COURT ORDERS that:

1 Gregory Wayne Kable be detained in custody for a period of six months commencing 23 February 1995 and expiring 22 August 1995 pursuant to s.9 of the Community Protection Act 1994.

2 in the first instance the defendant to be taken back to the place from whence he came, namely the Remand Centre and be provided with the opportunity or necessary facility to remove any personal papers or effects.

THE COURT DIRECTS that:

3 the defendant be detained at the Special Care Centre of the Long Bay Correctional Prison.

THE COURT APPOINTS:

4 Dr Bruce Westmore, psychiatrist, as assessor for the Director of Public Prosecutions and Dr Jonathon Phillips as assessor for the defendant or such other person as may be agreed respectively by each party and formally appointed by the Court.

THE COURT NOTES that:

5 Exhibits are to be retained by the Court. Either party has leave to apply on three days notice."

76 There then followed the dates on which the order was made and entered (in each case being 23 February, 1994, which should have read 1995) over the printed name of Deputy Registrar Sourdin, with the imprint of the seal of the Court.

77 Despite the fact that the pleading has matured over some 15 years, it remains imprecise as to the basis of liability on the part of the State. Thus, the conduct in respect of which a claim for abuse of process is articulated is variously described as "enacting" or "causing ... to be proclaimed" the Community Protection Act: second further amended statement of claim, paragraphs 15 and 16. In relation to malicious prosecution, it is said that "the proceedings and applications by the DPP ... were enabled, facilitated, promoted and encouraged" by the State. In respect of unlawful imprisonment, the State is said to have falsely imprisoned the appellant, apparently through its actions by officers in the Department of Corrective Services, although that is not entirely clear: paragraphs 21-23.

78 At the outset of the hearing below, the State identified six questions to be answered, which were stated in the following terms:

"Malicious prosecution

(i) Were the applications for orders pursuant to ss 5 and 7 of the Community Protection Act 1994 (CPA) 'Proceedings of the kind to which the tort of malicious prosecution applies?'

(ii) Given the plaintiff's concession that he does not assert actual ill will or spite on the part of any individual person, is there evidence capable of supporting a finding of 'institutional malice' sufficient in law to satisfy the third element of the tort of malicious prosecution, such that malice is to be determined by the jury? Alternatively, is there evidence of 'institutional malice' such that a jury would be directed to find malice satisfying the third element of the tort of malicious prosecution?

(iii) Has the plaintiff demonstrated on the balance of probabilities that the DPP or the State acted without reasonable and probable cause?

Collateral abuse of process

(iv) Has the plaintiff shown that 'the Executive Government and the Crown in the right of New South Wales were the plaintiff's prosecutor in enacting and promoting the proceedings'?

(v) Is there evidence capable of supporting a finding of an improper purpose by the State or the DPP, such that the question is to be determined by the jury? Alternatively, is there evidence of improper purpose by the State or the DPP such that a jury would be directed to find an improper purpose?

False imprisonment

(vi) Were the orders of Hunter J made on 30 December 1994 and Levine J made on 23 February 1995 nullities, or did they, prior to the decision of the High Court on 12 September 1996, constitute lawful justification for the detention of the plaintiff?"

79 The orderly and usually necessary method of proceeding in a court or tribunal is to note the claim or cause of action (in civil proceedings) or the charge (in criminal proceedings), identify the several elements to be established by the moving party and then undertake a similar task in relation to any positive defences. However, with respect to the misuse of public power, that orderly approach is apt to breakdown. Where the responsible parties are all public officers or governmental entities, a mechanistic approach to the elements of the causes of action may well obscure underlying legal principles, which are stated in terms applicable to both private parties and public officials.

80 No reliance was placed on the concept of misfeasance in public office, but the allegations of malicious prosecution and collateral abuse of process, carried out by public officers, were no more than examples of misfeasance. Accordingly, one must approach with caution the six issues identified above. The formulation of these questions also left something to be desired. For example, question (ii) is particularly inapt; it involved unidentified assumptions of law which give rise to questions as to the adequacy of evidence, one being that there is a legally relevant concept of 'institutional malice'. In question (iv), the concept of 'enacting ... proceedings' was equally obscure. In the end, nothing turns on these infelicities of expression because the primary judge was satisfied as a matter of law that none of the causes of action could be made out: he did not attempt to give precise answers to the separate questions.

81 Nevertheless, in one respect, which arguably has proved critical, the formulation of the questions concealed the real issue. Question (vi) appeared to assume two possible conclusions as to the status of the detention orders: the first was that they were "nullities", in the sense that they were at all times invalid. The alternative was that, prior to being set aside by the High Court, they constituted lawful justification for the detention of the appellant. However, the assumption that the orders were not void but only voidable raised a further question, namely was the relevant time to inquire as to their status the time of the detention or the time the proceedings were brought? As will be seen, question (vi) was addressed by reference to the established principle that orders of a superior court are only ever voidable, even if made without jurisdiction. That is, they are sufficient to provide a lawful justification for the exercise of otherwise tortious power in their execution. There was at least a third possibility, which was the proposition for which the appellant primarily contended in this Court, namely that once set aside, the justification which they had otherwise provided was retrospectively removed so as to render the respondent (if not the individual gaoler) liable for unlawful imprisonment. That question ultimately lies at the heart of these proceedings.

82 It is convenient to deal with the three causes of action in the order in which they were addressed by the primary judge: that is to commence with the claim for malicious prosecution, then the claim for collateral abuse of process, followed by unlawful imprisonment. Before turning to those matters, it is helpful to set out relevant aspects of the statutory regime operating at the time the cause of action arose.

(3) Statutory regime

(a) Community Protection Act

83 The impugned detention order was made under the Community Protection Act, which commenced on 9 December 1994. In its first emanation as a bill, the object of the legislation was identified in the following terms:

"Object of Act

3. (1) The object of this Act is to protect the community by providing for the preventative detention (by order of the Supreme Court made on the application of the Attorney General) of persons who are, in the opinion of the Supreme Court, more likely than not to commit serious acts of violence."

84 The phrase "serious acts of violence" was defined by reference to identified provisions of the Crimes Act 1900 (NSW): s 4.

85 The bill was amended in its course through Parliament so that, when enacted, s 3 provided as follows:

"Objects and application of Act

3. (1) The object of this Act is to protect the community by providing for the preventive detention (by order of the Supreme Court made on the application of the Director of Public Prosecutions) of Gregory Wayne Kable.

...

(3) This Act authorises the making of a detention order against Gregory Wayne Kable and does not authorise the making of a detention against any other person."

86 The operative provision of the Act was in the following terms:

"Preventive detention orders

5. (1) On an application made in accordance with this Act, the Court may order that a specified person be detained in prison for a specified period if it is satisfied, on reasonable grounds:

(a) that the person is more likely than not to commit a serious act of violence; and

(b) that it is appropriate, for the protection of a particular person or persons or the community generally, that the person be held in custody.

(2) The maximum period to be specified in an order under this section is 6 months."

87 The "Court" was defined to mean the Supreme Court of New South Wales: s 4. The proceedings were described as "civil proceedings": s 14. The Court was required to be satisfied, consistently with the nature of the proceedings, on the balance of probabilities: s 15. The following further provisions were significant:

"Detention orders sufficient authority for detainees to be held in custody

19. A detention order is sufficient authority for the person against whom it is made to be held in custody in accordance with the terms of the order.

...

Detainees taken to be prisoners for certain purposes

22. (1) A detainee is taken to be a prisoner within the meaning of the Prisons Act 1952.

...

Discharge of detainees from prison

23. (1) A detainee must be discharged from prison at the expiry of the detention order to which the detainee is subject unless there is lawful reason for continuing to hold the detainee in custody.

(2) A detainee must not be discharged from prison, or allowed leave of absence from prison, otherwise than:

(a) at the expiry of the detention order to which the detainee is subject; or

(b) in accordance with an order made by the Court.

(3) This section applies despite any other Act or law to the contrary.

...

Protection of certain persons from liability

28. No action lies against any person (including the State) for or in respect of any act or omission done or omitted by the person so long as it was done or omitted in good faith for the purposes of, or in connection with the administration or execution of, this Act.

...

Functions of Director of Public Prosecutions

31. (1) The Director or Public Prosecutions has the powers, authorities duties and functions conferred or imposed on the Director of Public Prosecutions by this Act."

(b) Vicarious Liability Act

88 To the extent that the liability of the State is said to be vicarious, an issue which arises at least in respect of the unlawful imprisonment claim, it is necessary to refer to the terms of the Law Reform (Vicarious Liability) Act 1983 (NSW) ("the Vicarious Liability Act") which provides (including immaterial amendments since 1995):

"7 Vicarious liability of masters

Notwithstanding any law to the contrary, a master is vicariously liable in respect of a tort committed by the master's servant in the performance or purported performance by the servant of an independent function where the performance or purported performance of the function:

(a) is in the course of the servant's service for his or her master or is an incident of the servant's service (whether or not it was a term of his or her contract of service that the servant perform the function), or

(b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the servant's master.

8 Further vicarious liability of the Crown

(1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function:

(a) is in the course of the person's service with the Crown or is an incident of the person's service (whether or not it was a term of the person's appointment to the service of the Crown that the person perform the function), or

(b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown."

89 Section 5(1) stated that a person "in the service of the Crown" does not include a servant of the Crown and the phrase "independent function" is defined:

"independent function, in relation to a servant or a person in the service of the Crown, means a function conferred or imposed upon the servant or person, whether or not as the holder of an office, by the common law or statute independently of the will of the servant's master or the Crown, as the case may require."

90 It does not matter whether a gaoler was, to use the language of the Act already archaic in 1983, either a servant of the Crown or a person in the service of the Crown: cf Enever v The King [1906] HCA 3; 3 CLR 969. More importantly, s 10, which was replaced after the decision of this Court in Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714, rendered the operation of statutory protective provisions irrelevant for the purposes of the State's liability.

"10 Effect of statutory exemptions

(1) In this section:

person includes the Crown.

statutory exemption means a provision made by or under an Act which excludes or limits the liability of a person.

(2) For the purposes of determining whether or not a person is vicariously liable in respect of a tort committed by another person, any statutory exemption conferred on that other person is to be disregarded.

(3) Except as provided by this section, nothing in this Act affects a statutory exemption conferred on a person."

91 Putting to one side the question of liability for the commencement of proceedings by the Director in the Supreme Court, it is clear that a vicarious liability on the part of the State for the detention of the appellant may arise from the provisions of the Vicarious Liability Act. The person directly responsible for the custody of the appellant will depend upon the operation of the Prisons Act 1952 (NSW) at the relevant time, if effect were given to s 22 of the Community Protection Act.

(c) Prisons legislation

92 The terms of the order made by the Supreme Court on 23 February 1995 are set out above: for present purposes it is sufficient to note that the order directed that the appellant "be detained at the Special Care Centre of the Long Bay Correctional Prison".

93 The source of that language was not explored in the evidence, but because, pursuant to the Community Protection Act, s 22(1), a detainee was taken to be "a prisoner within the meaning of the Prisons Act 1952", it may be assumed that the place of confinement was a prison, within the meaning of that term in the Prisons Act. The Prisons Act deemed institutions named in Schedule 2 of the Act to be "prisons under this Act": s 3(4). The first institution so named was "the State Penitentiary at Malabar", which, the Court is entitled to note, is a complex of prisons located at Long Bay also referred to as Malabar. It should be accepted that the place of detention was part of the State Penitentiary at Malabar.

94 At the relevant time (during 1995) the Prisons Act contained a number of provisions relating to the establishment and control of prisons and the custody of prisoners. The control of prisons generally was under the care of a Commissioner. Section 6 provided:

"Commissioner

6. (1) The Governor may appoint a Commissioner of Corrective Services.

(2) The Commissioner has, subject to the direction and control of the Minister, the functions conferred or imposed on the Commissioner by or under this or any other Act.

(3) The Commissioner has the care, direction, control and management of all prisons and prison complexes.

..."

95 A number of further provisions, then found in Pt 8 of the Prisons Act, are also relevant to the question of responsibility for detention.

"Custody of prisoners

39. (1) Every prisoner shall whilst detained in a prison be deemed to be in the custody of the governor of the prison to which he has been committed or removed and the liability of the Sheriff or other person delivering such prisoner shall cease on delivery of such prisoner to the governor of the prison.

...

Responsibility of governors of prisons

40. Every governor of a prison shall have the charge and superintendence of the prison for which he is appointed and he shall be liable to answer for the escape of any prisoner from his custody whenever such escape shall happen by or through his neglect or default, but not otherwise.

Gaol delivery

40A. (1) The Commissioner shall, at the times prescribed by the regulations made under this Act, make returns in writing to the Supreme Court as to all persons detained in each prison, otherwise than in pursuance of a sentence, for more than 3 months...."

96 The structure of the Prisons Act was not at all stages identical to its structure in 1995. (The Prisons Act later became the Correctional Centres Act 1952, which was repealed on 3 April 2000 by the Crimes Legislation Amendment (Sentencing) Act 1999 (NSW).) Thus, from 1975 to 1988 the role of the Commissioner of Corrective Services was undertaken by a statutory corporation, known as the Corrective Services Commission. It was that body which was extant at the time that the arrangements for custody of persons in prisons in New South Wales were considered in Cowell. The majority in that case (Clarke JA, Priestley JA agreeing) held that "in the light of the [Commission's] lawful power to exercise control over the prisoner, both directly by order and by directions to a governor, it should be regarded as responsible for detaining the prisoner throughout the term of his sentence": at 737D.

97 Cowell also referred to the position of the Commissioner who, prior to 1978, had performed the functions of the Commission. The Court held that the Commissioner would have had immunity pursuant to the protective provision then found in s 46 of the Prisons Act. (The Commission itself did not have such immunity because the specific protective provision was construed to protect individuals and not the statutory corporation.) However, the Court noted at 737-738:

"Prior to 1978, the Commissioner would not, in accordance with established principle, have been liable for the tort of any inferior officer.... In the absence of a privative provision such as s 46, he could have been liable if he himself ordered or directed that an inferior officer perform a particular task, the performance of which had given rise to a claim for damages. But by virtue of s 46 he would, in the absence of malice and provided he had reasonable and probable cause for directing the performance or task, have been immune from action."

98 This obiter reasoning in Cowell is applicable to the position of the Commissioner, an office resurrected in 1992, in the present case. It is, therefore, appropriate to note the terms of s 46:

"Civil and criminal liability

46(1) No action or claim for damages shall lie against any person for or on account of anything done or commanded to be done by him and purporting to be done for the purpose of carrying out the provisions of this Act, unless it is proved that such act was done or commanded to be done maliciously and without reasonable and probable cause."

99 The scope of that provision depended on whether the impugned conduct of the protected person was undertaken "for the purpose of carrying out the provisions of" that Act or for some other purpose such as carrying out a warrant issued pursuant to a court order: Cowell at 723 (McHugh JA). However, to the extent that the Commissioner was protected by s 46, it does not follow that the State was protected. The liability of the State could arise under either of ss 7 or 8 of the Vicarious Liability Act.

(4) Claims for malicious prosecution and abuse of process

(a) element of intention

100 The claims for malicious prosecution and abuse of process each involved several elements which are contested in the present case. However, both may be disposed of by reference to the mental elements in respect of the tortfeasor. It is not in dispute that each requires "malice". That requirement gave rise to two related difficulties for the appellant. First, it required deliberate or conscious wrongdoing of some kind; secondly, it required an individual state of mind. The appellant did not seek to establish the former, nor in any specific sense, the latter.

101 The appellant sought to sidestep both these difficulties by relying on a concept labelled "institutional malice". That, it was contended, avoided the need to identify personal ill-will on the part of any individual. For a government deliberately to cause harm to a citizen by a course of conduct which was fundamentally unconstitutional, in the sense of being an affront to the rule of law, warranted a remedy. In such circumstances, the appellant submitted, general law concepts, including the mental element of the torts relied on, must be adapted to the circumstances of the case.

102 It is, however, not open to this Court to accept that contention. To explain why that is so, it is necessary to address aspects of tort law in the context of public law more generally.

103 Neither malicious prosecution nor abuse of process are purely public law torts; each may be committed by an individual with no public position or function. For example, a person who makes a false complaint of criminal assault may be liable for malicious prosecution, although it is a police informant who commences the prosecution. However, like other general law torts, the elements are the same when the alleged tortfeasor is a public official. By way of contrast, there is only one civil cause of action for damages which operates purely in the area of public law, namely misfeasance in public office: Pyrenees Shire Council v Day [1988] HCA 3; 192 CLR 330 at [124], Gummow J, referring to Sadler, "Liability for Misfeasance in a Public Office", (1992) 14 Syd L Rev 137 at 138. Misfeasance also requires malice in the sense of deliberately unlawful conduct, or at least conduct as to the lawfulness of which the official is reckless. Causing harm by acting beyond the limits of power, even if negligent as to those limits, does not create a liability to pay compensation on the part of the official or the government: see M Aronson, "Misfeasance in Public Office: A Very Peculiar Tort", (2011) 35 Melb UL Rev 1 at 9-15. That is not to say that a public authority may not be liable for negligence (a tort of general application), but only that carelessness as to the limits of power is not in itself tortious.

104 It follows that, as with the constitutional challenge to the validity of the Community Protection Act, the motives and intentions of relevant Ministers or individual members of the Parliament, not being relevant to the effect of the legislation, cannot give rise to any tortious liability on the part of the State: cf HA Bachrach Pty Ltd v State of Queensland [1998] HCA 54; 195 CLR 547 at [11]-[12], albeit comments made in the course of considering the validity of legislation, rather than tortious liability.

(b) malicious prosecution

105 It is generally considered that the tort of malicious prosecution has four elements. First, the conduct complained of must involve a criminal prosecution and, secondly, the proceedings must have terminated unsuccessfully for the prosecution. The third element requires that the defendant, in initiating or maintaining the proceedings acted maliciously and, fourthly, acted without reasonable and probable cause: A v State of New South Wales [2007] HCA 10; 230 CLR 500 at [1].

106 There was an issue before the primary judge as to whether the first element of the tort was satisfied. According to the Community Protection Act, the proceedings were civil; nevertheless, they resulted in a detention order pursuant to which the appellant was imprisoned. The primary judge declined to decide this preliminary point against the appellant: at [45]. His Honour placed reliance on the opinion of Lord Steyn in Gregory v Portsmouth City Council [2000] 1 AC 419 at 426, noting that "[a] distinctive feature of the tort is that the defendant has abused the coercive powers of the state". However, the issue before the House of Lords was whether the tort extended to disciplinary proceedings undertaken by a local authority: their Lordships held it did not. To adopt such an imprecise criterion as abusing the coercive powers of the state as sufficient to engage the tort of malicious prosecution was not countenanced in Gregory, and does not find support in Australian case-law. Conventional civil proceedings no doubt engage the coercive power of the State, but their abuse does not constitute malicious prosecution. On the other hand, there were, in the present context, other features which justified Hoeben J declining to dismiss the claim on the basis that it did not satisfy the first element of the tort. As will be seen below, there is a separate tort of collateral abuse of process, which is "quite distinct from that of malicious prosecution": R P Balkin and J L R Davis, Law of Torts (4th ed, 2009) [25.23]; Dowling v Colonial Mutual Life Assurance Society Ltd [1915] HCA 56; 20 CLR 509 at 521-522 (Isaacs J).

107 The primary judge then sought to identify who initiated the proceedings. Under the Community Protection Act, the Director of Public Prosecutions was the only party entitled to seek a detention order against the appellant. However, his Honour noted that the appellant had sought to maintain a case against the Executive Government, and not against the Director. He held that the claim against the State, based on the various steps which it took to bring about the enactment of the legislative scheme, with the foreseeable and expected consequence that proceedings would be taken to obtain a detention order, revealed a misunderstanding of "the separation of powers doctrine as it operates in the governance of New South Wales": at [60]. His Honour held, at least implicitly, that the State could not be responsible for the actions of the Director because the Director was, by virtue of the Director of Public Prosecutions Act 1986 (NSW), "independent of the Executive": at [56]. No consideration was given to the possible liability of the State for a tort committed by the Director, pursuant to the Vicarious Liability Act.

108 The primary judge treated those conclusions as sufficient to dispose of the claim for malicious prosecution: at [62]. However, he did proceed to consider the other elements of the tort. In relation to the second element, namely favourable termination, he accepted that the application made to Levine J did ultimately terminate in favour of the appellant: at [63]. The primary judge also addressed the third and fourth elements. It is convenient to deal together with the elements of malice and lack of reasonable and probable cause.

109 As the judgment of six members of the Court in A v State of New South Wales noted, the requirement of malice involved an analysis of the purpose for which the proceedings were commenced or maintained. Their Honours explained at [55]:

"For immediate purposes it suffices to describe malice as acting for purposes other than a proper purpose of instituting criminal proceedings. Purposes other than a proper purpose include, but are not limited to, purposes of personal animus of the kind encompassed in ordinary parlance by the word 'malice'."

110 That element is, at least primarily, concerned with the motive of the prosecutor. The fourth and separate consideration, namely the absence of reasonable and probable cause, is directed to an objective assessment of whether the proceedings were instituted without sufficient grounds to justify that act.

111 It is not necessary to indulge in any further sophistication of that analysis for present purposes. Putting to one side the claim as to the purpose of the Executive Government in promoting the legislative scheme ultimately accepted by Parliament, there was no basis for finding that the Director commenced the proceedings for any purpose other than that revealed by the legislation, nor that, applying the standards contained in the Community Protection Act, there were not reasonable grounds for seeking the order provided by the Act.

112 The possibility that the Act exceeded the constitutional powers of the legislature could not of itself turn otherwise legitimate proceedings into a malicious prosecution. It could hardly have been contended that the invalidity was so patent that reliance upon it must have been improper: three judges in the Common Law Division and three members of this Court rejected the constitutional arguments as raised before them: see Kable v Director of Public Prosecutions (1995) 36 NSWLR 374.

113 Both before the primary judge and in this Court, the appellant's argument focused on a concept identified by his Honour as "institutional malice": at [66]. The appellant accepted that the legislative power of the State would have permitted an enactment identifying him and ordering his detention. (Presumably, the legislature could also have conferred power on an officer of the Executive to make an order of the kind made by the Court, in circumstances identified in the Community Protection Act; a course which would have better protected the appellant's human rights than a statute of "pains and penalties", though arguably not to the extent that a vesting of power in an independent judge would do.) The element of iniquity relied upon was the vesting of power in the Supreme Court to "give a public veneer of impartiality" to the process and any order made.

114 This argument cannot be sustained. First, it is not open to a litigant to impugn the motives of the Parliament, either individually or collectively: Bill of Rights 1688 (Imp), art 9; O'Chee v Rowley (1997) 142 FLR 1 at 12-13 (McPherson JA); Street v Hearne [2007] NSWCA 113; 70 NSWLR 231 at [207] (Handley AJA). Secondly, where that which is done without power is a legislative act, to provide compensation for those who suffer from a purported, but unconstitutional, legislative act is to confer a right to compensation based on unconstitutionality, in the absence of any common law tort. That is precisely what was rejected by Dixon J in James v The Commonwealth [1939] HCA 9; 62 CLR 339 at 362, a proposition which has not been doubted by the High Court.

(c) collateral abuse of process

115 That which is sufficient to constitute a tort of collateral abuse of process is by no means amenable to precise expression. It is often explained by reference to that which it is not. Thus, in Williams v Spautz [1992] HCA 34; 174 CLR 509 the tort was discussed by Mason CJ, Dawson, Toohey and McHugh JJ by reference to its relationship with the inherent jurisdiction of the Court to stay proceedings which were abusive: at 522-526. The case itself was concerned with the exercise of the judicial power to control proceedings, not the tort. Their Honours discussed the scope of the tort by contrasting it with malicious prosecution at 522-523:

"The tort of collateral abuse of process differs from the older action for malicious prosecution in that the plaintiff who sues for abuse of process need not show: (a) that the initial proceeding has terminated in his or her favour; and (b) want of reasonable and probable cause for institution of the initial proceeding."

116 It might be added that the abusive proceedings need not be criminal in nature. Accordingly, the only element of the four identified in respect of malicious prosecution required for abuse of process is "malice" in the sense of an improper purpose. There is a further difference: an action for malicious prosecution may be brought against a person who takes steps to initiate proceedings even if that person is not the informant: by contrast, in relation to collateral abuse of process, it has been held that the defendant must be the party who actually instituted the proceedings: Emanuele v Hedley (see [73] above) at [44], relying on three passages in the joint judgment in Williams v Spautz, at 523, 524 and 526. Whether or not such a principle can be derived from the discussion in Spautz at those pages, it has been affirmed by this Court in Leerdam (see [73] above), particularly in the judgment of Spigelman CJ at [32]-[44], Allsop P and Macfarlan JA agreeing at [65] and [126] respectively. It is not necessary to deal with the appellant's challenge to the correctness of that view.

117 It is also not necessary to explore the ill-defined parameters of the concept of "improper purpose" in the context of this tort. There was no evidence that the Director, or any Minister or senior officer of the government who might have been in a position to influence the Director, had any purpose in respect of the institution or maintenance of the proceedings in the Supreme Court, other than to achieve that for which the Community Protection Act expressly provided. Accordingly, it was necessary for the appellant to contend that that purpose was improper because the Act itself was unconstitutional and thus provided no basis for such proceedings. However, this argument is unsustainable for the reasons given above in respect of the same argument in relation to malicious prosecution.

(5) Unlawful imprisonment

(a) pleadings

118 The third cause of action relied upon by the appellant involved a trespass to the person, in the form of unlawful imprisonment. The allegation against the State that it falsely imprisoned him, "by itself and/or by its servants or agents", comprehended claims of direct liability and vicarious liability: further amended statement of claim, par 22. The particulars of the claim asserted that the appellant was detained and incarcerated by "Prison officers of the Department of Corrective Services" in one of the Long Bay gaols. For present purposes, it may be assumed that that language would be apt to include the governor of the relevant gaol and the Commissioner of Corrective Services.

119 In its defence, the State pleaded that the applicant was detained in prison pursuant to an order "purportedly pursuant to section 5 of the purported Act": defence, par 8(b) and (c). The State further pleaded that the order "appeared on [its] face to be both within jurisdiction and without legal error" and that "no servants or agents of the [State] executing the orders ... falsely imprisoned the plaintiff and the [State] accordingly did not falsely imprison the plaintiff": par 8(e). The defence did not admit so much of the claim as asserted that the State was itself responsible for the detention and denied that the State was liable in circumstances where its officers did not commit the tort.

120 The appellant also claimed that the State was responsible for his false imprisonment as a result of the chain of events following the introduction of the Community Protection Bill into the Parliament. It was said that the actions of the Executive in taking that step "either directly and/or by reason of the natural and probable consequence of those actions, brought about the wrongful imprisonment" of the appellant: par 23A(h). The State denied those allegations, but they are unnecessary for the cause of action. As stated by Lord Hobhouse of Woodborough in R v Governor of Brockhill Prison; Ex parte Evans (No 2) [2001] 2 AC 19 at 42F:

"Imprisonment involves the infringement of a legally protected right and therefore must be justified. If it cannot be lawfully justified, it is no defence for the defendant to say that he believed that he could justify it. In contrast with the tort of misfeasance in public office, bad faith is not an ingredient of the tort; it is not a defence for the defendant to say that he acted in good faith ..."

121 The pleadings did little to clarify the legal basis of the State's defence to conduct which, absent lawful justification, would constitute unlawful imprisonment. Question (vi) proposed a dichotomy: either the order of Levine J made on 23 February 1995 was a nullity or, prior to being set aside, it constituted lawful justification for the detention of the appellant. The question identified more precisely the position taken by the State in these proceedings, but did not sufficiently reflect the appellant's response that the invalid order, not being an exercise of judicial power, provided no justification for the imprisonment.

122 The liability of the State for the alleged tort of unlawful imprisonment must be considered by reference to the following issues:

(a) was the appellant deprived of his liberty without consent;

(b) was the deprivation carried out by -

(i) the State itself, or

(ii) a person for whose conduct the State was liable;

(c) was the deprivation of liberty justified by law?

123 The answer to the first question was not contested: the appellant was deprived of his liberty without his consent. The answer to the second question received inadequate consideration in the Court below, probably because it was thought that the answer to the third question pre-empted any need to consider the source of potential liability. For reasons which will be explained below, that approach may have obscured an important issue in the proceedings.

(b) findings at trial

124 In respect of direct liability, the primary judge held at [98]:

"There is no authority for the proposition that the Executive is to be held directly responsible where a person is wrongfully imprisoned after a hearing before a court pursuant to a law enacted by it."

125 It followed, his Honour held, that the State could only be liable for the plaintiff's wrongful imprisonment if liability were found "against the Corrective Services Commission and its servants responsible for his detention and for whose actions the defendant is liable": at [99].

126 Reference to the Corrective Services Commission appears to have arisen from the reliance of the appellant on the judgment of this Court in Cowell. In that case, proceedings were taken against the Commission and the State for wrongful imprisonment in circumstances where the claimant had been detained beyond the termination of his sentence, properly calculated. Clarke JA (Priestley JA agreeing) held that a prisoner was, at that time, in the "joint custody" of the Commission and the governor of the gaol in which he was incarcerated: at 737. The assumption in the judgment below that the Commission employed custodial officers was probably wrong, but in any event irrelevant: the Commission had, some years before the incarceration of the appellant (in 1995), been abolished by the Prisons (Amendment) Act 1988 (NSW).

127 The primary judge appears to have assumed initially that the State was liable "for the actions" of its officers, whether or not the officers were personally liable: at [98]-[99]. However, he later stated the question as being whether the setting aside of the court order by the High Court gave the appellant a cause of action for wrongful imprisonment against the gaolers: at [100]. The distinction was potentially important: see Darling Island Stevedoring and Lighterage Co Ltd v Long [1957] HCA 26; 97 CLR 36. However, the Court's attention was apparently not drawn to the Vicarious Liability Act which rendered the Crown vicariously liable in respect of a tort committed by a person "in the service of the Crown in the performance or purported performance by the person of a function (including an independent function)": s 8(1).

128 Ultimately the appellant failed below because the order of Levine J was made in the purported exercise of the jurisdiction of the Supreme Court as a superior court of record, the orders of which were valid and effective until set aside. The order in the present case was not set aside until after the period of imprisonment had expired and the order therefore provided the lawful justification for the conduct of the gaolers. The basis for the want of jurisdiction, namely the constitutional invalidity of the Community Protection Act, was irrelevant: at [101] and [110]. This conclusion was said to flow from the uncontested line of authority giving such effect to orders of superior courts, including orders made without jurisdiction, and the reasoning of the High Court in relation to constitutional invalidity in Re Macks; Ex parte Saint [2000] HCA 62; 204 CLR 158.

(c) appellant's contentions

129 The appellant pleaded that the State was liable both directly and vicariously for his false imprisonment. For reasons which will be noted shortly, the claim in direct liability is not tenable. Accordingly, the question is whether the officers of the State responsible for the appellant's custody could rely, by way of lawful justification, on the invalid order made under the Community Protection Act.

130 The appellant's challenge to the approach of the primary judge involved two steps. First, he contended that while a judicial order of a superior court might provide lawful justification for a State officer seeking to carry out its ostensible command, a non-judicial order provided no such protection. The second step in the reasoning was to characterise the order in the present case as non-judicial.

131 If the order itself provides no protection from liability to the gaoler, the third step in the argument is to ask whether there is any statutory protection available to the gaoler. However, that question may not need to be resolved if, pursuant to the Vicarious Liability Act, the State will be liable regardless of any statutory protection the gaoler may enjoy from personal liability.

(d) liability of the State - direct or vicarious

132 Although pleaded, little attention was paid to the possibility that the State might be held directly liable for false imprisonment. The absence of common law authority in this regard may flow, at least in part, from the immunity of the Crown from actions in tort, not effectively removed in the UK until 1948, with the enactment of the Crown Proceedings Act 1947 (UK). Similar legislation had been passed earlier in New South Wales: Claims against Government Act 1857 (NSW). Further, the enactment of the Vicarious Liability Act may have again rendered it unimportant whether the State were being sued as directly liable, or merely as vicariously liable for the actions of its officers. However, the imposition of direct liability for breaches of a duty of care in circumstances where the principal has a special relationship with the injured party might be thought to operate a fortiori in circumstances where the principal has, unlawfully, created that relationship. That the Commonwealth owed non-delegable duties of care with respect to persons in immigration detention was discussed, on the basis of a concession, by Finn J in S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549; 143 FCR 217 at [215]-[216]; see generally, S Kneebone, Tort Liability of Public Authorities (LBC, 1998) p 324ff.

133 A different view appears to have been taken, however, in Haskins v The Commonwealth [2011] HCA 28; 244 CLR 22. It is convenient to note here the circumstances of that case, which has further significance in respect of vicarious liability. In Lane v Morrison [2009] HCA 29; 239 CLR 230, the High Court had held the legislation establishing an Australian military court, outside the command structure of the armed forces, to be an invalid exercise of the judicial power of the Commonwealth. Following that decision, in 2009, the Parliament legislated to give effect to punishments and orders made under the invalid scheme. Mr Haskins had served a period of detention imposed by the invalid court and sued the Commonwealth for damages for false imprisonment. He challenged the 2009 legislation, in part on the basis that it sought to effect an acquisition of his action for false imprisonment without just terms: at [41]. To address that argument, it was necessary for the Court to consider whether he had such an action. The majority judgment (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) stated at [43]:

"The liability which the plaintiff seeks to attribute to the Commonwealth for what he alleges to be his false imprisonment must be vicarious liability. The Commonwealth would be vicariously liable for false imprisonment under ss 56 and 64 of the Judiciary Act 1903 (Cth) only if the plaintiff could succeed in that claim against the officer who detained him: the officer in charge of the Corrective Establishment."

134 Haskins was not considered by the primary judge, as it post-dated that judgment. It was given limited consideration in argument in this Court, although the appellant placed some reliance upon it. He did not, however, seek to distinguish the statement set out above. Accordingly, it is necessary for this Court to proceed on the basis that the liability of the State can only be vicarious.

(e) the issue - legal nature of order

135 A person convicted of an offence and imprisoned will not have an action for unlawful imprisonment merely because the conviction was later reversed and a judgment of acquittal substituted. As explained by Dixon J in Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; 46 CLR 73 at 106, in relation to a conviction for an offence under a regulation, later disallowed:

"Thus, after a regulation has been disallowed, no one is liable to conviction for an offence committed while it was in force. His liability ceases when the law is revoked that imposed it. But if he has already been convicted, then because his liability has merged in the conviction, it no longer depends upon the law under which it arose, and it does not lapse with the revocation of the law. The conviction has become the source of his liability for his offence, and the conviction continues in force because its operation does not depend upon the law creating the offence, but upon the authority belonging to a judgment or sentence of a competent Court."

136 Some consequences may be retrospectively undone, apparently where the conviction has affected the status of the individual. Thus, in Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; 53 CLR 220, the High Court held that a public official who, by statute, was deemed to have vacated his office upon conviction of a felony was, upon the conviction being set aside, entitled to be restored to his office and to recover unpaid salary.

137 The appellant did not rely on this approach. Rather, the appellant's case was that the detention order was not a judicial order like a conviction and did not carry the same consequences.

138 The State accepted that an act of the Executive which would constitute a trespass under the general law, absent lawful justification, will not be excused from liability by bona fide reliance upon a law which was later held to be unconstitutional: see, eg, Antill Ranger & Co Pty Ltd v Commissioner for Motor Transport [1955] HCA 25; 93 CLR 83; Deacon v Grimshaw (1955) 93 CLR 104 at 108 (Fullagar J); approved in Commissioner for Motor Transport v Antill Ranger & Co Pty Ltd (1956) 94 CLR 177 (PC); C L Pannam, "Tortious Liability for Acts Performed Under an Unconstitutional Statute" (1965-67) 5 Melb UL Rev 113 at 116-117; Coleman v Power [2004] HCA 39; 220 CLR 1 at [142]-[144] (McHugh J) (in dissent on the validity of the provision, dealing with the resulting arrest based upon the invalid law). As the Privy Council noted in Antill Ranger, although a constitutional prohibition confers no private right on an individual, "it is a transparent misuse of this proposition to proceed to the further proposition that a trader, who but for the [impugned legislation] would have a right enforceable at common law, cannot plead that a defence raised under [the impugned legislation] is precluded by the [constitutional provision]": 94 CLR at 181.

139 The State sought to avoid this conclusion by relying on the principle that an order of a superior court has effect until set aside, sufficient to provide lawful justification for a deprivation of liberty. The State referred to numerous authorities for the proposition that an order of a superior court made in excess of jurisdiction is merely voidable and not void and therefore has effect until set aside: see Cameron v Cole [1944] HCA 5; 68 CLR 571; DMW v CGW [1982] HCA 73; 151 CLR 491; Ousley v The Queen [1997] HCA 49; 192 CLR 69; Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511 at [164]-[165] (Gummow and Hayne JJ); Re Macks and Matthews v Australian Securities and Investments Commission [2000] FCA 288; 97 FCR 396 (upholding a finding of contempt in respect of an order made by the Federal Court in a jurisdiction invalidly cross-vested under a State law). However, as Hayne J stated in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 summarising the effect of those authorities at [151]:

"In general, judicial orders of superior courts of record are valid until they are set aside on appeal, even if they are made in excess of jurisdiction." [Emphasis added.]

140 The principle is not that an apparently valid order, made by a court in exercise of judicial power, must be treated as valid until set aside. That broad principle would require that a person be liable for contempt for failing to comply with an order of the District Court which was later set aside, a conclusion rejected in Pelechowski v Registrar, Court of Appeal [1999] HCA 19; 198 CLR 435 at [55] (Gaudron, Gummow and Callinan JJ). In reaching that conclusion their Honours accepted the reasoning in United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 335 (Samuels AP, Clarke and Meagher JJA agreeing) applying the principle set out by McHugh JA in Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357:

"If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it."

141 The principle depends on the order being made in the exercise of judicial power by a superior court. There was no doubt that the Supreme Court was a superior court; however that did not mean that all exercises of statutory power by its judges constituted judicial orders. Accordingly, the principal issue between the parties was whether the detention order made by Levine J was properly characterized as an order made in the exercise of judicial power or not. If not, it required a valid statutory power to give it legal effect and that was concededly missing. The legal quality of the order was thus central to the defence of lawful justification.

(f) whether order judicial or non-judicial

142 The scope of judicial power can arguably be broader in State jurisdiction, where the doctrine of the separation of powers has a lesser operation than under the federal Constitution. However, no reliance was placed on that consideration, no doubt because before Levine J, as before other judges of the Common Law Division who had been invited to rule that the Community Protection Act was invalid, it was contended that the legislation offended the Commonwealth Constitution, although not precisely on the basis later accepted by the High Court. Those contentions involved a matter arising under the Constitution and involving its interpretation, within s 76(i) of the Constitution and notices were issued under the Judiciary Act, s 78B. In determining the matter, the Court was, therefore, exercising federal jurisdiction, which it was entitled to do pursuant to the Judiciary Act, s 39(2). Levine J dismissed the arguments, following, as a matter of comity, the views of earlier single judges of the Court, but that did not affect the nature of the jurisdiction being exercised. In consequence and according to established principle, the whole of the proceedings in the Common Law Division involved an exercise of federal jurisdiction.

143 That being so, the effect of the Court's order was, the State submitted, indistinguishable from the effect of orders of the Federal Court, made in exercise of a jurisdiction purportedly conferred on the Court by State legislation and discussed in Re Macks. Orders of a superior court, even when made without jurisdiction, were held to be valid and effective until set aside, either by way of appeal or the exercise of constitutional judicial review under s 75(v) of the Constitution.

144 The operative principle is that the contingent effect given to a judicial order of a superior court is an incident of the exercise of judicial power. A superior court is one which has jurisdiction to determine the scope and extent of its own jurisdiction, albeit subject to appeal and, if a court of limited jurisdiction, as all courts in Australia are at least since the commencement of s 38 of the Judiciary Act, the supervisory jurisdiction: DMW v CGW at 509-510 (Dawson J); Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) [1995] HCA 31; 184 CLR 620 at 653 (Toohey, McHugh and Gummow JJ); Re Macks at [140] (McHugh J).

145 This principle appears to give rise to a logical conundrum. To the extent that the limit on the jurisdiction of a particular court is imposed by the Constitution, how can the law on which the effect of the judicial order depends give it an effect extending beyond the constitutional limits of that jurisdiction? Of course, if a parliament has legislative power with respect to the subject matter of the order, it may be able by legislation to give effect to an order which was an invalid exercise of judicial power: Re Macks concerned an exercise of such a power. The conundrum arises where the effect of the court's order depends upon the scope of the legislation conferring jurisdiction on the court. Referring to the relevant constitutional provisions, McHugh J stated in Re Macks at [143]:

"Section 71 gives the Parliament power to create federal courts. But given the limitations imposed by ss 75 and 76, it is impossible to conclude that the power to create those courts enables the Parliament to declare that the orders of those courts, made without constitutional authority, are binding until set aside. Just as the Parliament cannot extend the scope of its powers by making regulations binding until set aside or quashed, it cannot extend the scope of its powers - even for a moment - by giving the federal courts power to make binding orders that go beyond the constitutional authority of the Parliament."

146 In Re Macks McHugh J was alone in expressing that view, although the analysis bore a degree of similarity with remarks of Sir Owen Dixon, writing extra-curially, set out by the majority in Haskins at [45]. Following the quotation (which need not be repeated) the judgment in Haskins continued:

"Or as the celebrated dictum of Field J in Norton v Shelby County [118 US 425 at 442 (1886)] put the same point: 'An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.'"

147 The majority in Haskins then said, "[w]hether any exceptional qualification can be made to the generality of the principles described by Sir Owen Dixon and Field J need not be examined here". No reference was made in Haskins to the remarks of Hughes CJ of the United States Supreme Court in Chicot County Drainage District v Baxter State Bank 308 US 371 (1940) referred to in Re Macks. There, Gummow J stated at [221]:

"Hughes CJ said that broad statements as to the effect of a determination of unconstitutionality were to be taken with qualifications and continued [at 374]:

'The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, - with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.'"

148 It has long been accepted that the designation of particular acts as "nullities" or as "void" rather than "voidable" is a labelling exercise which is broadly unhelpful. An erroneous assertion of a non-existent jurisdiction will be an action sufficient to engage the supervisory jurisdiction and, where appropriate, the appellate jurisdiction: Ah Yick v Lehmert [1905] HCA 22; 2 CLR 593 at 601 (Griffiths CJ). The present case was not an attempt, as between parties who assumed the validity the relevant legislative act, to undo judicial orders made on the basis of the assumption. Rather, it involved a defence relied on by the State (the author of the legislation), in the proceedings between the same parties and in which the validity of the legislation had been challenged, relying upon an order based on the invalid legislation, as lawful justification for otherwise tortious conduct on the part of its officers.

149 It is not necessary to resolve the logical conundrum noted above. The abstract question may be reduced to a specific issue: does the fact that, in resolving the constitutional validity of the Community Protection Act, the Supreme Court was exercising federal jurisdiction mean that the detention order, which was dependent on its opinion that the Act was valid, was made in the exercise of judicial power? Assuming the detention order would otherwise have been an administrative act, like the issue of a warrant, it might seem strange that it should become a judicial act because a challenge had been mounted to the validity of the conferral of power to do the act. If that were so, it would further follow that, assuming the State law were invalid and conferred no power to make an order on the application of the Director, the invalid administrative act would become valid until set aside, but only because the validity of the Act had been challenged.

150 Re Macks accepted that the effect of constitutional limitations on power could only be determined in the exercise of federal judicial power. Thus, the High Court by operation of ss 71 and 76(i) of the Constitution itself, and other courts by legislation pursuant to s 77 of the Constitution, could undertake that exercise. The proposition that an erroneous determination of jurisdiction may nevertheless be effective until set aside flowed in part from s 75(v) of the Constitution which conferred power on the High Court to correct errors on the part of "an officer of the Commonwealth", language which encompasses judges of federal courts: at [52] (Gaudron J) and [256] (Kirby J). That factor could not operate with respect to State courts, exercising jurisdiction pursuant to s 39(2) of the Judiciary Act, but other relevant constitutional provisions supporting the same conclusion were identified in Residual Assco Group Ltd v Spalvins [2000] HCA 33; 202 CLR 629. However, that analysis does not assist the State in the present case: rather, it distinguishes Re Macks as a case dealing with orders made in the exercise of judicial power, albeit based on an erroneous assumption as to the Court's jurisdiction. The finding of the High Court in Kable that the Supreme Court was not exercising judicial power in making the impugned order requires a different level of analysis. However, it remained the case that, unless s 39(2) were to be read down so as to remove its operation, the Supreme Court had jurisdiction to consider the validity of the Community Protection Act and hence its own jurisdiction. Thus, the analysis proceeded, its order, based on its view that it had jurisdiction, had some effect until set aside. In other words, the order made in the exercise of State jurisdiction was not an exercise of judicial power because the State legislature was unable to confer such power on the Court, but it became a judicial order because the constitutional challenge was raised. (No such issue arose in Re Macks, the impugned orders being those of the Federal Court.)

151 One possible answer to such an analysis is that where a judicial function and an incompatible non-judicial function are purportedly exercised in one proceeding, the incompatible non-judicial function is not thereby incorporated into a single exercise of federal jurisdiction. As noted by Dawson J in Kable, "it may lead to a very artificial result in a case such as this, namely, that the Supreme Court of New South Wales was exercising federal jurisdiction in ordering the preventive detention of the appellant under a New South Wales Act": at 87. Dawson J referred to the possibility identified by Barwick CJ in Felton v Mulligan [1971] HCA 39; 124 CLR 367 at 373 that the whole of the "jurisdiction which is exercised by the Supreme Court throughout the case will be federal ... unless perhaps there is some completely disparate claim constituting in substance a separate proceeding".

152 A second answer is that it follows from the reasoning in Kable that the purported exercise of the incompatible jurisdiction did not cause the jurisdiction purportedly conferred by the State law to be recharacterised as judicial. Once federal jurisdiction is invoked by reliance on a defence arising under the Constitution, and the whole of the case becomes an exercise of federal jurisdiction, no State law operates except to the extent it is applied by federal law, namely ss 79 or 80 of the Judiciary Act. However, the Judiciary Act will only pick up and apply a valid State law; because the State law is, ex hypothesi, invalid, it will not be picked up and applied. Accordingly, an order under the invalid State law, which could not have been made in the exercise of federal jurisdiction, did not constitute a judicial order.

153 Any contrary conclusion would contradict the findings of the High Court in Kable. The majority held that the function conferred on the Supreme Court was not compatible with the exercise of judicial power and involved the Court in an exercise of a non-judicial function: 189 CLR at 98 (Toohey J), 106-107 and 108 (Gaudron J), 122 (McHugh J) and 132 and 134 (Gummow J). Gummow J further accepted the appellant's submission that "his detention was not ... supported by a valid law of the State": at 144. The orders of the High Court set aside the detention order made by Levine J and, in lieu thereof, ordered that the application of the Director of Public Prosecutions, seeking the detention order, be dismissed with costs. Accordingly, it is not open to this Court to conclude that the detention order was otherwise than an invalid non-judicial order.

(g) effect of non-judicial detention order

154 The appellant contended that the proceedings in the Supreme Court and the resultant order were so far from being an exercise of judicial power as to be entirely incompatible with it. An order made in exercise of a non-judicial function was not a judicial act, despite the status of the repository of the power and the language and form of the order. Although the order may have had the trappings of a judicial order, it was not an order of the kind which, if made by a judge of a superior court in the exercise of judicial power, is valid until set aside. Accordingly, the order did not enjoy the status of a judicial order and was void ab initio. It followed, the appellant submitted, that, absent an effective statutory protective provision (s 28 of the Community Protection Act which might have provided that immunity having been held invalid with the rest of the Act) the order provided no defence to the claim of unlawful imprisonment.

155 The appellant sought support in the reasoning of the High Court in Love v Attorney-General (NSW) [1990] HCA 4; 169 CLR 307. That case involved challenges to the validity of certain warrants issued by judges of the Supreme Court under the Listening Devices Act 1984 (NSW). Conversations were recorded and certain persons, including Love and Peters, were charged with offences relating to the supply of heroin. Love and Peters brought challenges to the validity of the warrants, as a step to having the evidence obtained by use of the warrants rejected in the criminal proceedings. In the Court of Appeal, it was assumed or accepted that the warrants were judicial orders: Peters v Attorney General (NSW) (1988) 16 NSWLR 24. The Court of Appeal held that the Listening Devices Act was invalid, pursuant to s 109 of the Constitution, to the extent that it purported to authorise the issue of a warrant for a member of the Australian Federal Police to use a listening device for the purposes of a narcotic inquiry under the Customs Act 1901 (Cth): at 36C (McHugh JA, Kirby P agreeing). McHugh JA rejected the proposition that "as these warrants were made by judicial orders they are valid and effective until the orders are set aside even if the Listening Devices Act is pro tanto invalid": at 38B and 41B. The Court declared that the warrants were of no force and effect, to the extent of the inconsistency.

156 On appeal to the High Court, the applicants argued that if the warrants were judicial orders, they could not be declared void ab initio, and would not be amenable to prerogative relief: 169 CLR at 309. The Court held (at 318):

"It is first necessary, in order to consider the operation of the warrant, to determine whether the act of issuing it is judicial or administrative in nature. If the issuing of the warrant is an administrative act, then the ambit of the warrant must be determined in the light of the scope of the power conferred upon the court by the statute. ... On the other hand, if the act of issuing a warrant is judicial in nature, then the warrant takes on the attributes of a judicial order."

157 Their Honours continued (at 319):

"In one sense - a loose sense - the warrant is a judicial act; it is an instrument issued by a judge of the Supreme Court. But the fact that it is an instrument issued by a judge of the Supreme Court does not stamp it with the character of a judicial order unless the warrant issues as a result of a determination made by the judge in his or her judicial capacity."

158 Their Honours concluded that the warrants were administrative acts and therefore not judicial orders, continuing (at 322-323):

"Once it is accepted that the warrant is not a judicial order, it becomes an instrument made pursuant to a circumscribed statutory authority."

159 Although reaching the result by a different route, the High Court did not set aside the orders made by the Court of Appeal. Rather, they read down the authority granted by the warrant to conform to the limitations identified in the Listening Devices Act, which, when itself read down, was not invalid. Thus, an order made otherwise than in the exercise of judicial power cannot depend for its authority on the force of a judicial order and derives whatever authority it has solely from the relevant legislation. If the legislation is invalid, the order is without legal effect, in accordance with the principles identified in Antill Ranger and Love.

160 The appellant's submission should be accepted. The distinction drawn in Love is consistent with the proposition that only orders made by a judge of a superior court in the exercise of judicial power are valid until set aside and thus provide immunity to those executing them in good faith.

161 The result of that conclusion may be that, absent statutory protection, public officers are exposed to potential liability in damages for obeying what they reasonably believe to be a valid court order. However, the conclusion means no more than that the order was of the kind which could be made by the Supreme Court under the Listening Devices Act, by a District Court judge or by a magistrate: to obtain protection, as has long been recognised, statutory protection is required. Such a provision was contained in s 28 of the Community Protection Act, but, as was expressly held by the High Court, that provision fell with the rest of the Act. Although that provision cannot protect the State, there remains a question as to whether s 46 of the Prisons Act, which conferred immunity on the gaoler, protected the State, despite the terms of s 8 of the Vicarious Liability Act.

(h) statutory protection

162 The potential difficulties faced by the police seeking to execute a void warrant have long been recognised, but have found their solution, not in the general law, but in statute. Thus, a constable executing an invalid search warrant has been held to have no protection at common law in this State, but to enjoy protection originally available provided in England by the Constables Protection Act 1750 (Imp) (24 Geo II, c 44), s 6: Feather v Rogers (1909) 9 SR (NSW) 192. In fact, as explained by Kirby P in Carroll v Mijovich (1991) 25 NSWLR 441 at 447A-C, there has been specific statutory protection for police under New South Wales law since the Police Regulation Act 1899: see also comment as to absence of general law protection in the judgment of Handley JA, at 457F.

163 The Constables Protection Act 1750 provided protection to "any constable, headborough or other officer" in respect of anything done in obedience to any warrant. The phrase "other officer" was held to extend to a gaoler: see M Aronson and H Whitmore, Public Torts and Contracts (Law Book Co, 1982) p 148, referring to Butt v Newman (1819) Gow 97 and Gerard v Hope [1965] Tas SR 15 at 54 and 63. In Butt v Newman, Dallas CJ, sitting in the Court of Common Pleas, noted that, as a matter of statutory construction, "[i]t would, indeed, be extremely strange if the gaoler who receives a person into his custody under the warrant of a magistrate be not protected, when at the same time the constable who conveys the person to the gaol is entitled to protection": at 98. Much of the history was set out by Crisp J in Gerard v Hope.

164 The Constables Protection Act has not operated in New South Wales since the Imperial Acts Application Act 1969 (NSW); nevertheless, the existence of the statutory protection, dating from 1750, may well explain remarks in cases, made without supporting authority, to the effect that a court officer or other person executing an apparently valid order (though not of a superior court) is protected from liability: eg, Sirros v Moore [1975] QB 118 at 137, Lord Denning asserting that no action would lie against police officers acting in response to a judge's direction, though the direction was invalid where they did not know of the invalidity; see also Aronson and Whitmore, at 151-152. Further, gaolers in New South Wales have enjoyed statutory protection under State legislation preceding the repeal of the Constables Protection Act: Prisons Act, s 46.

165 In the light of this statutory protection, it is implausible that any common law principle now operates in respect of orders purportedly made under statutory authority (and no other authority). Such a conclusion would indicate that Love was determined on a false premise. That should not be accepted. Alternatively, whatever residual common law protection may be available, it has no application in respect of novel forms of statutory order, such as those available under the Listening Devices Act. In the absence of any clear submission as to how such protection could arise in respect of a constitutionally invalid statutory detention order, such a possibility must be put to one side.

166 Whatever statutory protection the gaoler may enjoy will not enure to the benefit of the State: Vicarious Liability Act, s 10. Thus, at least since the amendment of s 10, the reference in s 8 to "the tort committed by a person in the service of the Crown" must be read as referring to that which would have been a tort, absent statutory protection.

167 In these circumstances it is unnecessary to decide whether s 46 of the Prisons Act provided statutory protection to the gaoler. No action was brought against the gaoler and any statutory protection of the gaoler would not relieve the State of the liability it has otherwise accepted under the Vicarious Liability Act.

168 A further possibility, not expressly addressed in argument, was that s 46 extended protection to the State, which protection was not overridden by the Vicarious Liability Act. Section 46 granted immunity to "any person"; "person" is defined to include a body politic: Interpretation Act 1987 (NSW), s 21(1). However, s 46 operated only with respect to things "done" or "commanded to be done" by that person. The State did not "do" anything directly, as the primary judge correctly concluded. Nor did it "command" anything to be done. Furthermore, the act of detaining the appellant was not done "for the purpose of carrying out the provisions of" the Prisons Act, but for the purpose of carrying out the purported provisions of the Community Protection Act: see Cowell at 723C-E (McHugh JA). Finally, it seems unlikely that the appellant was a "prisoner" within the definition in s 4(1) of the Prisons Act, except by operation of s 22 of the Community Protection Act, which was invalid. Given the absence of reliance by the State on protection under s 46, these questions need not be resolved.

169 So far as the State is concerned, no question could have arisen as to its vicarious liability for the unlawful imprisonment by a gaoler so long as it enjoyed "Crown immunity". That was effectively abolished in New South Wales by the Claims against the Colonial Government Act 1876, s 3, as construed in Farnell v Bowman (1887) 12 App Cas 643 (PC). Further procedural reforms were made in 1897. That legislation was replaced in due course by the Claims against the Government and Crown Suits Act 1912 (NSW) and, more recently, the Crown Proceedings Act 1988 (NSW), which was in force when these proceedings were commenced. However, the State remained immune from vicarious liability for the acts of public servants in the exercise of independent functions. That immunity was removed by the Vicarious Liability Act in 1983. As explained by the Minister (Mr Frank Walker) in his Second Reading Speech, New South Wales Parliamentary Debates, 3rd series, Vol 174, p 4764-4765 (17 March 1983):

"In respect of the State, however, there are persons in the service of the State who do not have a master and servant relationship with the Government as employer. Examples of such persons are statutory office holders performing functions conferred by their particular statutes, and members of the police force. At present, there can be no vicarious liability on the State in respect of torts committed by these persons as there is no relationship of master and servant. In addition, some of the functions performed by these persons, for example the police officer's powers of arrest, are functions conferred or imposed by the common law or by statute.

The Government has decided that the State should accept liability for the wrongful acts of all persons in the service of the State in addition to those employees who fall within the strict master and servant relationship. ... This liability will apply regardless of whether the function being performed by the person in the service of the State was conferred or imposed by law."

170 The underlying purpose of s 8 of the Vicarious Liability Act was to remove the State's immunity for the acts of officers exercising independent functions ("[n]otwithstanding any law to the contrary"), the immunity being based on the general law principle that liability only arose where the officer acted pursuant to the command of the sovereign, and not pursuant to a statutory duty: see Tobin v The Queen (1864) 16 CB(NS) 310; 143 ER 1148, 1162-1163 (Erle CJ), applied with respect to a wrongful arrest by a police officer in Enever v The King and rejected as inappropriate in policy terms by the NSW Law Reform Commission, Report on Proceedings by and against the Crown (1975) at [13.4]-[13.5] and [13.27]. The State is therefore liable for the acts of its officers in imprisoning the appellant without lawful authority.

(6) Conclusions

171 The primary judge was correct to strike out the claims based on malicious prosecution and collateral abuse of process. He was wrong to strike out the claim based on unlawful imprisonment. Accordingly, the appeal is upheld in part. The matter must be returned to the Common Law Division for determination of the outstanding claim. However, it does not appear that any defence remains available to the State and the appellant is entitled to a judgment on the issue of liability for false imprisonment, with damages to be assessed.

172 The Court should make the following orders:

(1) Allow the appeal in part.

(2) Set aside the orders in the Common Law Division dismissing the proceedings against the first defendant (the State) and ordering the plaintiff to pay the defendant's costs of the proceedings.

(3) In lieu of the judgment and orders below:

(a) give judgment for the plaintiff on his claim against the first defendant (the State) for unlawful imprisonment;

(b) order the first defendant to pay the plaintiff's costs of the proceedings to date in the Common Law Division.

(4) Remit the matter to the Common Law Division for assessment of damages.

(5) Order that the respondent pay the appellant's costs of the appeal.

173 CAMPBELL JA: I agree with Basten JA concerning abuse of process and malicious prosecution, and with the orders that should be made. I agree with Allsop P concerning why the claim in false imprisonment should not have been dismissed.

174 MEAGHER JA: I agree with Basten JA for the reasons he gives that the primary judge was correct to strike out the claims for malicious prosecution and collateral abuse of process. For the reasons given by Allsop P, the primary judge should not have dismissed the claim for false imprisonment. As those reasons demonstrate, none of the defences relied on by the State in answer to the false imprisonment claim can succeed as a matter of law. For that reason I agree with the orders proposed by Basten JA.

175 McCLELLAN CJ at CL: I have had the benefit or reading in draft the judgments of the President and Basten JA. I agree with the orders proposed by Basten JA.

176 I agree with the reasons of Basten JA in relation to all issues except for false imprisonment and in respect of that issue I agree with the reasons of the President.

177 Some people may find it to be an odd result that an order made by a judge pursuant to legislation of the State Parliament could be the foundation for tortious liability. However, I am satisfied that result follows from the characterisation by the High Court in Kable of the Community Protection Act (1994) NSW and the act of the judge purportedly done in reliance on it (Allsop P provides a summary of their Honours' conclusions in [3]). The High Court's analysis leads inevitably to the conclusion that the decision to detain the appellant had no legal foundation making the State liable in tort for the appellant's false imprisonment.

**********

Decision last updated: 08 August 2012