Getting Justice Wrong DPP make full admissions..........
(Left) Nicholas Cowdery QC & (Right ) Liberal John Fahey Accuser & Judge
Back in May 2001 Nicholas Cowdery QC made an error at law by giving a speech called Getting Justice Wrong at the University of New England, Armidale Thursday, 31 May 2001. MANDATORY SENTENCING One area in which we are most certainly getting justice grievously wrong is in mandatory sentencing, in whatever form it may exist (be it called mandatory sentencing, mandatory minimum sentencing, grid sentencing, guideline sentencing or whatever). In all its forms, parliament presumes to fix or severely circumscribe the penalty that will be imposed by the court.
But the imposition of punishment is the task of the judiciary in our system of government and the doctrine of the separation of powers should ensure that the actions of one branch of government do not improperly impinge on the functions of another.
That is especially so when justice in the individual case may be denied by the inability of the court to give appropriate weight to the individual circumstances of both the offence and the offender.
The courts do not tell parliament what to do (unless it gets it wrong); parliament should not tell the courts what to do, beyond setting the legal limits within which they may do it.
We have mandatory minimum sentencing in limited circumstances in New South Wales. In 1996 an Act was passed providing for mandatory life imprisonment for what were intended to be extreme cases of murder and drug trafficking. It has never been invoked. We already had provisions enabling "life, meaning life" sentences to be imposed at the discretion of the courts in murder and drug trafficking and under those provisions, which are not mandatory, about 15 prisoners are presently serving such terms in New South Wales. The 1996 legislation was just political grandstanding.
Another piece of political posturing had occurred in 1994 when parliament purported to pass the Community Protection Act providing for one man, Gregory Wayne Kable, to be imprisoned beyond the expiration of the sentence he was serving for the manslaughter of his estranged wife. He had killed her during an argument over access to their children in 1989.
Mr Kable had been corresponding from prison about the welfare of his children in ways that gave the authorities concern about how he might act on his release.
[Because Mr Kable had not 'seen or heard' of his children's 'status' since his initial incarceration. Whereby at all material times he had that responsibility to his children and not to the authorities, to ensure that his children were safe from harm! He had not been corresponding with his children from prison but with authorities who denied him such access and contact with his children.]
The Community Protection Act which applied only to Mr Kable provided for further detention for periods of up to six months at a time, upon proof of his likelihood to commit violence and the appropriateness of such an order for the protection of the community.
There was a sorry course of litigation until in 1996 the High Court held that the legislation was invalid as being unconstitutional and an improper interference with the judicial function.
It was an extreme example of parliament attempting to act as accuser and judge by prescribing a civil penalty against a citizen who was otherwise entitled to freedom.
Mr Kable has been compensated by the taxpayer, [for the litigation] after more litigation, for his unlawful detention under this invalid Act. [But not compensated for the damage caused.]
In other jurisdictions, notably the Northern Territory and Western Australia, mandatory penalties are prescribed more precisely as part of the criminal penalties to be imposed and, unfortunately, quite validly. Not only do they arrogate to parliament a function of the judiciary, but they apply to offences in such a way that they unfairly discriminate against Aborigines, the young and women (largely because of the types of offences to which they apply).
They are inhuman in their operation and not a cost-effective treatment of criminal offending. Parliament has the power to make laws of that kind, but they are offensive to the constitutional doctrine of the separation of powers, unreasonably fetter the discretion of the courts and impact indirectly upon the independence of the judiciary.
They also contribute to an undesirable tension between the courts and the other arms of government.
Our politicians at state and territory and Commonwealth levels have chosen to ignore appropriate pressure from the international community to bring these laws into line with commonly accepted international standards.
If there are problems with inadequate sentences being imposed by the courts, then the answer lies in the ability of the Crown to appeal against those sentences and also in the ability of the appeal court to provide guideline sentencing judgments if there are clear inconsistencies or deficiencies in sentencing for particular offences. Both avenues are available and used in New South Wales. We must resist any attempt to extend mandatory sentencing in this state.
Where Nicholas Cowdery got it wrong?
Kable's claim against the State of New South Wales and the DPP with respect to the false imprisonment, malicious prosecution, abuse of process and assault following his detention under the invalid Community Protection Act of 1994.
Whilst it is a long time since we have published the status of the case we have not been idle. We have issued Notices to Produce against both Defendants. Nevertheless having gone through extensive exercise to obtain documents, which include all documents under the heading "Taskforce Harm", we came to the conclusion there were other documents which we needed in order to prosecute this claim.
Whilst the First Defendant, the State of New South Wales, are undoubtedly responsible for the administration for the Community Protection Act it was not the action of the First Defendant which resulted in the Judge's order for imprisonment. Therefore the First Defendant has the defence that they were acting under the orders of the Supreme Court properly made at the time. Judges, of course, are immune from civil litigation when exercising their judicial powers and therefore do not fall within the definition of the State of New South Wales for that purpose.
As you can see, the prosecution of this litigation is not without its problems and we did not think it was a good idea to go to a hearing. But Nicholas Cowdery QC in his speech not only told us his thoughts about the case but also published his views.
Nicholas Cowdery made full admissions in the Kable Case. Gregory Kable Vs The State of New South Wales. NSW being the first defendant and theDepartment of Public Prosecutions as the 2nd defendant in a case currently before the Supreme Court of New South Wales that has not been to a full hearing yet? Cowdery not only made full admissions he went on to acknowledge the damages and then to publish his findings onto the Internet website at the DPP.
How can Nicholas Cowdery QC as head of the DPP the 2nd defendant in Kable V's the State of New South Wales continue to defend matters he himself has published as Getting Justice Wrong?
Does this statement diminish any public support to have this matter resolved so Mr Kable can get on with his life in peace? Or did Cowdery feel sorry for Kable knowing the State was wrong and spoke out in defence of Civil Rights and in defiance of the New South Wales Government?
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Or Listen: On Blogger Source Page: Getting Justice Wrong DPP make full admissions
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
HOEBEN J
MONDAY 2 NOVEMBER 2009
21296/96 ‑
GREGORY WAYNE KABLE v STATE OF NEW SOUTH WALES & 1 OR
Mr M Neil QC with Mr P Bates and Ms P White for the Plaintiff
Mr MJ
Leeming SC with Mr Weinstein and Mr Bhalla for the Defendants
The torts are
as follows:
1) Malicious Prosecution which includes a) Absence of Reasonable and Probable
Cause. Directions
to and or decided by a jury, 2) Collateral Abuse of Process decided
by the Judge.
False Imprisonment including Trespass means constraining a person’s
freedom to move. Directions to and or decided by a jury.
Excerpts of the hearing as follows:
NEIL: I perhaps
should make one point about the Kable judgment itself, your Honour. I'd ask my learned friend if he might
be good enough to concede this if he hasn't. I don't think it is actually conceded in the defence. Just adding to the argument about
whether the judgment itself should be admitted, I want to submit that at least
that part of the judgment on page 144 setting out the orders ought be
admitted because that would be evidence of the fact that the proceedings ended
successfully for the plaintiff when the judgment of Justice Levine was set
aside.
HIS HONOUR: That's not evidence. I can have regard to the outcome of the
case.
NEIL: I just don't want to fall down a crack
where I have not got evidence of the successful conclusion.
HIS HONOUR: You don't need a certificate I'm
sure. I'd certainly take judicial
notice of that, the fact the orders were made.
NEIL: Thank you.
HIS HONOUR: My understanding is we have embarked on
the hearing. So it is incorrect to
look at this as a preliminary decision on a separate issue. We've embarked on the hearing. As I understood it, I thought we agreed
that the most appropriate way to deal with it is to deal with the legal questions
first so we know what, if anything, is to go to the jury. By way of illustration, if I found that
the malicious prosecution part of the claim for reasons that you've put forward
simply won't run against the executive so that no other malice questions or
anything like that would go to the jury.
We would leave that aside and whether I was right or wrong would be
decided elsewhere. So they are the
sort of things I had in mind. In a
conventional jury trial that's how we'd deal with it, except that I would make
a decision in a sense on the run, put the questions to the jury and then we'd
see where we ended up. Here we
have the advantage of not having a jury waiting in the wings at this stage and
being able to spend a little more time on it. That's as I saw it.
I suspect that
some level of hesitation might be experienced by Mr Neil by saying that he
would not want to be restricted to these questions at this stage. Although as I understand from what he
said previously, he agrees that all of them are relevant. I think the only issue is he might
think there are some additional ones.
LEEMING: There may be some more, and I'm more
than amenable to deal with that.
What I am really getting around to is this: my learned friend and your
Honour quite sensibly invited me to open my case. My learned friend is not closing his case because of way in
which this is proceeding. As to
that I have no difficulty and it makes eminent sense for us not to have jurors
waiting around in a case that is primarily about questions of law. My submission is that part 28, the
old part 31, was designed for exactly this, the way in which all parties
in the court sensibly have adopted.
At some stage I would invite your Honour to formalise that position.
HIS HONOUR: I won't do it now. I will give Mr Neil a chance to
see what he thinks about it and if he agrees with that procedure. I believe we are talking about the same
thing. I think we will come to the
same result.
NEIL: I think that's right, your Honour. I do have a concern that part 28
may simply not be an available way of dealing with this. It is just not a case for separate
questions under part 28. It
is a case for determination of legal issues that will determine your Honour's
directions to the jury.
HIS HONOUR: Indeed. All I'm doing in a rather extended way is what I would have
been doing in a conventional jury trial on the run. So I'm actually going to make my decisions as to the matters
of law that should go to the jury, but I will be reserving on that in due
course and, obviously, giving it a fair bit of thought. That's the only difference. I suspect it is a distinction without a
difference, but why don't you talk to Mr Leeming about that when you get a
chance and let me know what your final position is.
LEEMING: Reading the reasons it appears there
was some additional evidence, updating evidence and including the evidence of a
Dr Schwartz as you would expect.
I am also told we have been able to locate the transcripts of that and
we will make a copy available to my learned friend.
NEIL: That would be helpful. Bearing in mind as far as I understand
Justice Grove made a decision that your Honour will some time read, but
all these fears were groundless.
Nothing happened
HIS HONOUR: There was a case of Mr Tillman.
NEIL: All I'm saying is all these gentlemen
who had not seen Mr Kable who came along and gave certain evidence, and
saying that the past performance is the thing that guides the future, they were
all wrong.
HIS
HONOUR: It is even worse if you
look at the serious sexual offender.
It is judgment by psychologist and psychiatrist.
NEIL: That is why I raised the Makita
objection, your Honour
The following
day at the very end of the trial of facts by the judge.
NEIL: The High
Court has said the executive's acts were not permitted even if there was an
order by the Judge that brought about the imprisonment. What brought about the orders of the
judge, we submit, was not permitted by law because the High Court has said
so. Mr Bates said in none of
the other cases was the whole process involved and very, very briefly I would
commend your Honour once again to read the judgments in Kable but without
labouring ‑ I know your Honour will read them all again ‑ McHugh J in 189
CLR in the first paragraph says, "In my opinion those who initiated
it", and the Government initiated it and passed the Act, the governments
sit in the house, "Plainly intended...would be imprisoned".
The end of
page 121, and over to the next page, I think I have read this before,
"Not merely that the act involves the Supreme Court in the exercise of non‑judicial
functions...far removed from the judicial process". It may be a valid order, your Honour,
but it wasn't a judicial order, these orders. They were executive orders because the Court had been made
into an executive organ so there is some distinctions. This is a new case. It is brought about by the Government.
At the end of
page 123, McHugh J points out, "The constitutional validity...the
Royal Assent". All these
arguments about reasonable and probable cause it just falls. On the Royal Assent it was
invalid. Gaudron J was scathing,
as I said earlier, about what had occurred and used the phrase that there had
been a mockery of justice. I think
it is in our written submissions.
So we are joined on the matter of principle.
Unger and all
those other cases, I hope your Honour won't think that if I don't particularly
refer to one I am not making the point.
It was a leave case. It was
interesting that my learned friend is probably right where Mr Unger might
well have wondered if he got through the leave gap but he didn't.
HIS
HONOUR: It is probably why he
didn't get through the leave, I suspect.
NEIL: Our complaint is that the people who
did the imprisoning, the gaolers, had to do what they were told to do by the
orders of the Court. But the
people who brought about the whole situation are liable. It doesn't answer our claim in
principle. Our overriding case is
an overriding case.
HIS HONOUR: I really do get the point ‑ the
novel feature of your case is you are going after the executive of a State
Government.
NEIL: Yes.
HIS HONOUR: In a way which is utterly unprecedented
and you are trying, valiantly and perhaps successfully, I don't know, I haven't
made up my mind, to fit what is unprecedented within precedent and that is
hard.
NEIL: True, your Honour, but it is like they
used to say‑‑
HIS HONOUR: I am not saying it is impossible. Each new development in the law has to
take a new step.
NEIL: Exactly, your Honour, but we say we are
on the soundest of grounds in the judgment in Kable, the judgment in Fardon and
the judgment in Wakim which I think I just referred to where they all say it
was a plot and a plan to distort this Court‑‑
HIS HONOUR: It was a plot ‑ plot is
putting it too far ‑ there was a clear intention to keep
Mr Kable in gaol.
NEIL: And to do it by dressing it up to look
good.
HIS HONOUR: As part of that process, a step in the
process was certain steps to be taken by the Supreme Court.
NEIL: Yes. It is not lawful justification we say for those who
wrongfully brought about the situation.
There is no, we
would submit, reason in principle why this should be treated as no halfway
house as my friend says. This is a
new case. This is a case that
perhaps has been waiting to come up.
Who knows. But the common
law‑‑
HIS HONOUR: Rather hope we never see it again.
NEIL: I hope so, your Honour.
HIS HONOUR: Every time somebody is wrongfully
gaoled the law takes a step backwards.
HIS HONOUR: Can I thank you both. The submissions are excellent. They are very condensed of course. I will have to read all the cases but
it is almost like one of those law school conundrums that has been served up.
I will reserve
my decision on this and I will let you know as soon as I can when you can
expect a judgment. If anyone gets
a sudden rush of blood to the brain between now and the end of term and you
wish to supplement your submissions or provide me with some additional
authority, just contact your opponent and get the all clear and then by all
means send it. Send it directly to
Chambers rather than the Registry.
JUDGMENT
RESERVED Comment:
The judge
reserved until February next year…..2010
From my re reading of some of the transcripts, possibly, 1) The judge will strike out malicious prosecution and absence of reasonable
probable cause.
2) He will leave collateral abuse of process to the High Court in Kable and
bows to their judgment.
3) Then he directs the jury to find false imprisonment and trespass because
he already said so in his own words:
"HIS HONOUR: Every time somebody is wrongfully gaoled the law takes a
step backwards."
Judgment on Damages Claim 30 July 2010 Hoeben J’s judgment KABLE v STATE OF NSW [2010] NSWSC 811, handed down this morning, Friday 30 July 2010, giving judgment for the defendant (State of NSW) with costs in favour of the State.
Conclusion and Orders
The plaintiff has failed to make out any of the causes of action relied upon in his statement of claim. He has failed to make out his claim for malicious prosecution because the defendant (State of NSW) was not his prosecutor, there is no evidence of malice, institutional or otherwise to go to the jury, and the evidence is overwhelmingly to the effect that the DPP had reasonable and probable cause to bring proceedings under the CPA against him.
He had failed to make out his claim for collateral abuse of process because the defendant was not a party to the proceedings and there is no evidence of and improper purpose associated with the proceedings under CPA. His claim for false imprisonment fails because his imprisonment took place pursuant to orders of a superior court which were effective until they were set aside.
Recommendations that we appeal within the 28 day appeal period running from today, were discussed earlier today. We had anticipated fuller reasons, than we received, after such a long period of being reserved (8 months).
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Listen to Hoeben J's Judgment CPAct My response to Hoeben J's Judgement Well I'm not a lawyer friends but I dare say that this is the answer to the above judgment. In regards to the judgment I say that there is evidence in that the CPA was [invalid]. 1) if the Attorney-General is satisfied by a police report ? 2) the Attorney-General if satisfied on that material an application should be made to the supreme court for an order? 3) the Court must, on application may imprison a person? 4) if the Court is satisfied on the balance of probabilities (civil proceedings) that the defendant is dangerous? 5) whether the Act is (incompatible) with, or (repugnant) to, the exercise by the Court of the judicial power of the Commonwealth invested in Chapter III of the Constitution? 6) whether the Kable doctrine is engaged by an exercise of judicial power involving proof of a fact where the fact is an 'executive determination' arrived at 'by a process other than a judicial process?' 7) whether Kable doctrine can serve as a restriction on the selection by the legislature of a fact, which, if established along with other facts in a judicial proceeding in a manner consistent with judicial process, triggers a particular legislative consequence? Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR.
8) The Kable Doctrine is thus used as a precedent, judged by the High Court of Australia,
because the Executive cannot make a finding of fact by using a process that is not compatible with Chapter III of the constitution. Therefore the maker of the repealed law is also responsible for the damages? 9) The agreement between the applicant and the defendant was, if we dropped the DPP from the claim, then if the DPP were responsible, then the State would cover the liability. 10) Why would the High Court send a litigant away with a judgement in his favour, if that litigant would lose the damages caused by the invalid law and ruling, in a cause of action, in a lower court? Only a very vindictive court would cause a huge monetary loss to any party, (thinking they’d won), to then proceed for damages that, according to a single judge, had no standing or credibility in his lower court. 11) Why wouldn’t Hoben J acknowledge who was David and who was Goliath I.E. whether both parties were equal in capacity to argue and to fund a defence against damage caused by CPA judged by the High Court to be invalid? 12) Part of the CPA struck out was the no State liability clause?
Supplementary1) The “detention” of the person as a “prisoner” under the CPA was ordered because it was feared that he might be a danger to the community in the future and for purposes of his rehabilitation. The concept of feared or predicted dangerousness to the community applicable in the case of past offenders is inherently problematic. It is essentially based on opinion as distinct from factual evidence, even if that evidence consists in the opinion of psychiatric experts.
2) But psychiatry is not an exact science. The CPA, on the one hand, requires the Court to have regard to the opinion of psychiatric experts on future dangerousness but, on the other hand, requires the Court to make a finding of fact of dangerousness.
3) While Courts are free to accept or reject expert opinion and are required to consider all other available relevant evidence, the reality is that the Courts must make a finding of fact on the suspected future behaviour of a past offender which may or may not materialise. 4) To avoid arbitrariness, in these circumstances, the State Party should have demonstrated that the prisoners rehabilitation could not have been achieved by means less intrusive than continued imprisonment or even detention, particularly as the State Party had a continuing obligation under Article 10paragraph 3 of the UN Covenant to adopt meaningful measures for the reformation, if indeed it was needed, of the author throughout the years during which he was in prison.
Seems the State Judge has to obey the State of NSW in that his judgement in my opinion was flawed, bent and a white wash. The latest news is that we intend to appeal his decision of reckless indifference in relation to the High Court (not subject to the State executive) and The Kable Doctorine.
Email from: Mr P Bates Barrister 4 August 2010
Dear Greg,
I have read your emails since Hoeben J's judgment.
I have not yet had an opportunity to discuss the judgment with Mr Maurice Neill, QC but I have forwarded it to him and anticipate discussing it with him soon. He has left me a message to call him back, and I will do that.
As I have discussed with Peter, I believe that the issues in your case are worthy of appeal, although that involves additional expenses including the filing fee for the Notice of Appeal, and the cost of printing the appeal books. You will need to discuss this with Peter.
However, just a quick note, as I think you may need some additional assistance to clarify the distinction between the earlier proceedings in the High Court, and the current proceedings.
The earlier High Court proceedings dealt with the constitutional powers of the State of NSW, and not with damages.
In the earlier High Court case, the court ruled that the State of NSW lacked constitutional power to pass the legislation which was used, in due course, to detain you.
However, the High Court has explained in various decisions over the years that the fact, or circumstance, that legislation is unconstitutional does not, of itself, entitle persons who were affected by the legislation, before it was struck down, to damages.
Lots of people are affected, from time to time, by steps taken while legislation is enacted, before it is ruled invalid.
However, it is only in some situations that affected persons have a damages claim.
In your current damages claim, we are trying to fit your novel situation into the situations where affected persons can claim damages after legislation has been ruled unconstitutional.
It is not correct to say that Hoeben J is 'overruling' the High Court, as you suggest in one of your emails. Rather, Hoeben J is not persuaded that we have been able to fit your own situation into the situations where damages can be claimed.
We will be in touch with you again.
Regards,
Philip W. Bates
Practicing Barrister & Legal Consultant (ABN 19 644 818 484)
Sir Owen Dixon Chambers
14/179 Elizabeth Street
Sydney NSW 2000
Response by Gregory Kable 4 August 2010 Hi Philip and Peter, I never had the funds to appeal and all concerned would have taken that into account before judgment against us. It was logical and spoken about to my legal team prior the judgment. No appeal and no judgment against the executive. That is how the ruling class stifle judgment. In short we already won the matter but the executive and the court don't have to deal with it, similarly the media don't have to report it.
In my humble opinion the right to damages after the High Court ruled in favour and being directly affected should be automatic.
I don't accept your view that unconstitutional law does not grant rights to damages to those that have been hurt by it.
However, having said that it is their institution' and 'their rule of law' and most people regard lawyers today as the clergy for the ruling class.
I feel sorry for my lawyers [and the Law Foundation], who has funded the case and disappointed that they never had the full potential to prove it.
Regards
Gregory Kable Email 2 from: Mr P Bates Barrister
You will need to discuss with Peter if he and his firm are prepared to fund the appeal disbursements (filing fee, appeal books). I remain prepared to work on a 'spec' basis. Peter and I do not yet know Mr Neil's view.
As I have explained, the USUAL principle is that I don't accept your view that "unconstitutional law does not grant rights to damages to those that have been hurt by it" (as you have expressed it). This is a well-established principle, referred to in par [61] of Hoeben J's judgment, where he quotes from Kruger's case in the High Court, but the principle goes back over half a century to earlier High Court cases. The reason is, philosophically, that no country could afford to compensate every citizen who is adversely affected by the operation, for the time being, of legislation that is ultimately found to be unconstitutional. (Some of those earlier cases were discussed in the long advice I prepared for Peter and you some years ago, and which Terracini SC and Neill QC both agreed with, when they reviewed it.)
The CPA, in my humble opinion, should fall within the type of case which attracts compensation, but the facts are so novel and unprecedented that maybe only the High Court itself will be prepared to take that step. And the High Court, these days, is more conservative than when you won your earlier case there. I doubt that the current High Court would have been as adventurous.
Regards,
Philip Bates Practicing Barrister & Legal Consultant (ABN 19 644 818 484)
Sir Owen Dixon Chambers
14/179 Elizabeth Street
Sydney NSW 2000
Response by Gregory Kable 4 August 2010 Hi Philip and Peter,
Thanks for that again, but as I have said that the clause at the bottom of the CPA for liability has been struck out. That is to say that there can be no Legislation with a clause of that nature. And the legislation was novel. It never even existed, no wonder they have trouble finding torts and damages for it. Why is that so novel? Laugh! A conservative High Court may strike it out but I doubt it, because that would be against their own judgment and that would make them look foolish and guarded. Regards
Gregory Kable Stay tuned..... Notice of Appeal: Supreme Court of NSW Court of Appeal Filed in relation to: Liability The Notice of Appeal is listed for directions on 2/02/11 Stay tuned.....
Labels: 1996, 2003, assault, australia, children, compensation, constitution, contact-visits,discrimination, dpp, draconian-laws, false-imprisonment, mandatory-sentencing, nsw, prisons-and-punishment
Criminal: Hills district MP Michael Richardson. When is he going to remove these uncorroborated lies and family court pleadings on the confidential Family Court affidavit from the NSW Parliament website? How can politicians commit criminal acts and not be subject to the law like everyone else? When are the police going to charge him for this crime?
REORDERING OF GENERAL BUSINESS
After the Community Protection Act 1994 was struck down by the High Court of Australia Getting Justice Wrong DPP make full admissions then NSW parliament reacted again as follows:
Community Protection (Dangerous Offenders) Bill
Mr RICHARDSON (The Hills) [2.48 p.m.]: I move:
That general business order of the day (for bills) No. 14 have precedence on Thursday, 10 April.It is urgent that the Community Protection (Dangerous Offenders) Bill be reordered and debated by this House because at this very moment Gregory Wayne Kable is in the Parramatta Family Court seeking to gain access to his children, Brooke and Clark Kable, aged nine and 11. [After the High Court of Australia struck down the Community Protection Act 1994.]
Mr Kable wants to see them for two hours four times a year, at the end of school terms, with a view to building up a long-term relationship with them. He also wants to know their new names. He has completed a 12-week parent training course and has approached the St Vincent de Paul Society and the Salvation Army to ask whether they could supervise the visits. He says that the children want to see him but that their minds have been poisoned by their guardians. He claims that, far from punishing him,denying access to his children is punishing them. Concerning publication of my children’s names
by the Member for The Hills in parliamentary debate and now published
on the NSW Parliamentary website. I have asked the NSW Parliament to remove, not only my children’s names but the wrong, uncorroborated, and plagiarised information, and the Family Court Application. Young adults like my two children, ought not be haunted or offended when or if they might decide to search their names on the Internet,
and that if they did, that they would not be provided with such
offensive and wrong material, for all their friends, relatives, and the
general public to search for and see as well.
Complaint to the NSW Parliament House About it Updated 8/3/2010:
Letter to NSW Parliament House
Ms Lee RHIANNON, MLC
* Member of the Legislative Council
* Member of The Greens
Parliament House,
Macquarie Street,
Sydney NSW 2000
Phone (02) 9230 3551
Fax (02) 9230 3550
Dear Ms Rhiannon,
How are you going? I sent this to your email address above
and have not received any response to date, so I am forwarding this again to
you in the mail.
As I am suing State Parliament for damages, on foot, for
false imprisonment and assault, (the case coming up to court on 9 November
this year), and as well, I have a conflict
of interest with my local member Ms Clover Moore, if you don’t know.
So I was wondering if you could assist me and pass this
material to the person who runs the parliament website to have the wrong
information removed.
When my daughter Brooke or son Clark type their names in
google they get Mr Richardson a Liberal members, wrong information. See link
below:
It would appear to the writer that the NSW Parliament
website is in breach of S121 of the family Law Act 1975, because at the time
the children were minors and certain rules applied, and I would ask if you
could assist me with asking that the parliament remove it.
Thanks Regards
Gregory Kable
29 August 2009
Letter From NSW Parliament House Mr G. Kable
October 2009
Dear Mr Kable.
I refer to your letter dated 8 October 2009, concerning
publication of your children’s names by the Member for The Hills in debate. The
Hon Lee Rhiannon has also emailed me in relation to this matter.
I acknowledge your concern that the Member named your
children in the course of parliamentary debate, and note your advice that the
information made public by the Member was probably derived from a Family Court
application.
While publication of such information outside of
parliamentary proceedings may breach the Federal Family Law Act, speaking in a
parliamentary debate Members are able to exercise a freedom of speech which is
not constrained by statutory prohibitions.
The basis of this principal is that the law of parliamentary
privilege provides absolute immunity to the giving of evidence before the House
Committee. As noted in Odgers, it is “a fundamental principle that the law of
parliamentary privilege is not affected by a statutory provision unless the
provision alters that law by expressed words” [51].
The New South Wales Legislative Assembly Hansard record of
debate held in 1997 has been long published, and the circumstances you refer to
in your letter unfortunately do not fall within the House procedures which
would enable you to make a citizens right of reply.
Yours sincerely
Richard Torbay
Speaker
Letter To NSW Parliament House Mr Richard Torbay
Speaker
Suit Parliament House
Macquarie Street
SYDNEY NSW 2000
Re: My Family Court Application on Parliament Website
Dear Mr Torbay,
Thank you for responding to my complaint. I refer to your
letter dated October 2009, received on 19 October, concerning the publication
of my children’s names on the Parliament website, alongside wrong information,
by the Member for the Hills in parliamentary debate.
There is no absolute immunity to the giving of evidence that
has been provided by two or more parties on a confidential application to the
Family Court of Australia, then plagiarized and given
before a House or a committee. That material is confidential.
The basis for this principle in a parliamentary debate about
the ‘contents of an application’ to the Family Court of Australia is
constrained by statutory provisions. As noted in Odgers, preparation and
publication of documents p55, “ the contents of a document which has come
into existence independently of proceedings in Parliament, for example, a
report or letter which is exchanged between two or more parties and is
subsequently submitted to a House or a committee, is not protected by
parliamentary privilege. (For an application of this principle, see Szwarcbord
v Gallop 2002 167 FLR 262.)”
I once again ask that that wrong confidential material and
my children’s names be removed
from the parliament website.
This is my final notice, you are hereby given 14 more days
to notify the writer that the confidential, offending and unlawful material has
been removed, otherwise this material will be forwarded to my lawyer for a
further damages claim against NSW.
Regards
Gregory Kable
19 October 2009
Letter To NSW Parliament House Mr Richard Torbay
Speaker
Suit Parliament House
Macquarie Street
SYDNEY NSW 2000
Re: My Family Court Application on Parliament Website
Dear Mr Torbay,
As
I have received no response to the final notice I sent to you dated 19 October
2009, to remove from the NSW Parliament Website in 14 days, (my children’s
names, the confidential, wrong, uncorroborated, and plagiarised information,
from the Family Court Application).
Well
since then I spoke to Lucy your secretary by phone on 6 November 2009. She told
me that you were seeking legal advice about the complaint by us and that my
letter was received in your office on 21 October 2009.
I
would have thought that common sense would have prevailed when I pleaded to
Parliament to remove the material.
Young
adults like my two children, ought not be haunted or offended when or if they
might decide to search their names on the Internet, and that if they did, that
they would not be provided with such offensive and wrong material, for all their friends,
relatives, and the general public to search for and see as well.
It
is with regret that I must inform you that the matter has now been filed in the
Supreme Court of NSW at Sydney. Please see Notice of Status Conference attached
for your perusal.
I
will be seeking a writ that commands the performance of an act required by law.
In this instance the removal of the offensive material as above stated. We will also be seeking costs and
damages.
My
instructions are not to serve the filed documents until February 2010 at the latest
on the basis that Lucy said that you were seeking legal advice and that you
would get back to me about it.
So
thanks for that and I guess I will either hear from you or not by the time the
matter is due for service late February. We would be pleased if you would just
have Parliament remove the material and that the matter including costs could
be resolved.
Regards
Gregory Kable
12 December 2009 Note: Subsequently no further communication was sent by the NSW Parliamentary Speaker Mr Richard Torbay in relation to his alleged legal advice and the litigation was discontinued by myself on the 4th of March 2010 because I was unable to get legal assistance.
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