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. 
Sir Frank Kitto, Lecture now published at the DPP website. At page six, paragraph 3 under the heading:
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 the
Department 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?


Special Leave Application Excerpts:  High Court of Australia Transcripts

Kable v Director of Public Prosecutions for NSW S67/1995 [1995] HCATrans 260 (18 August 1995)

SIR MAURICE: Your Honour, that is all I wanted to say about the federal Constitution. Can I say something about the State Constitution? What we say about that, is this: the State constituent power which is found in the 1902 Constitution derives from the 1855 Constitution Act, at section 5. Now, what this Court has said in Clayton v Heffron 105 CLR - might I just remind your Honours of a passage at page 251, about line 15 from the top. The four Justices say:

The purpose of the provision is to express the full legislative power of a State the authority of which is continued under ss 106 and 107 of the Constitution of the Commonwealth. The Legislature was endowed with constituent as well as ordinary legislative power. Section 5 was of course enacted by the Legislature of New South Wales -

Now, this is talking about the 1902 Constitution -

but it was enacted in the exercise of the State's constituent legislative power and that in turn depended upon an existing source of authority. That existing source of authority -

is the Imperial Act, the Constitution statute with the local statute:

To give the history of these two legislative instruments and to explain them would be rather to stray from the c point. They meant the establishment of a new legislature; at the same time the principles of responsible government were introduced and with that came the principles and conventions and general tradition of British parliamentary procedure. But what matters here is that the two instruments contain the source whence the constituent power of the Legislature is derived.

So you have a confined power. Now, what we want to say is this, your Honours, that when the 1855 Act was passed, what it introduced was what the learned Justices have said, so that one could not have a dictatorship, or one-party State, set up, because that would mean that the stream ascended above the source, and you could not depart from those essential characteristics of that society, and we say one of the essential characteristics of that society is the rule of law. And we rely - Sir Owen Dixon, for example, says, of the federal Constitution, that the rule of law is an assumption of it, and he said that in the - all I will do is just read one sentence - - -

DAWSON J: Well, I think we are familiar with it, actually.

McHUGH J: The Communist Party Case.

SIR MAURICE: I need not read it - and obviously that is, in our respectful submission, correct. Therefore, the constituent power cannot be exercised so as to infringe the rule of law. One of the provisions about the rule of law is equality, and another provision is that you cannot punish a man in body or goods, except upon a verdict for a crime. That is what we wanted to say are the material questions.

DAWSON J: Thank you, Sir Maurice. Mr Solicitor. 

DAWSON J: Is that really so? The rule of law posits the idea that there is a law that one can comply with so as to avoid the penalties which might otherwise be imposed. In this case there is no law which this man can comply with in order to avoid imprisonment.

MR MASON: Assuming that he falls within the net of being objectively a risk - - -

DAWSON J: Yes, there is nothing he can do.

MR MASON: The same may be said of the person who is suffering a contagious disease.

DAWSON J: But this man is not.

MR MASON: No, but if one debates the principle - - -

DAWSON J: He cannot even, as it were, get well. 

Source: 

Kable v Director of Public Prosecutions for NSW S67/1995 [1995] HCATrans 260 (18 August 1995)

 Sir Maurice Byers
 

SIR MAURICE: May it please, your Honours, can I just say something about some of the submissions, which I presume were not tentative, relating to the supremacy of the Parliaments of the States, and presumably the supremacy of the Parliament of the Commonwealth. Now, of course, what my learned friends were saying seem to ignore the fact that Australia is a federal State, and so no Parliament is supreme above the Constitution, and what is supreme are the constitutions to which all parliamentary powers are subordinate.
That is, I would have thought, a truism, which, in the Union Steamship Case was pointed out that the Parliaments of the States within the limits of their powers could pass valid laws. Now, if anything more is meant by supremacy of parliament, then we would submit that it is just inconsistent with the notion that State parliamentary powers, Commonwealth parliamentary powers are confined within the bounds of the Constitution - their respective constitutions. One is then forced to say: what is meant by saying that the Parliaments of a State are supreme? I think at least one of my learned friends was trying to say that anything that Parliament said was a law; even if it was about a topic in the exclusive powers of the Commonwealth, it was valid, and that is nonsense. I mean, it is obvious that the powers of the Parliament of the States are subject to the Constitution, section 106, says, and indeed as their own constitutions say, that they have legislative powers. They have not got judicial powers, and the legislative power does not authorise an exercise by the Parliament of the judicial power which is reposed in other people.
It is for that reason, for example, that Lord Diplock said the separation of the powers is basic to the Constitution of the United Kingdom. It is basic to the Constitution of all the States and the Commonwealth. Now, that is independently of the effect of section 106 and Chapter III. Your Honours have heard my submission about that. Might I, in answer to what my learned friends have put on that to date, just say this: could the Parliament of the Commonwealth, there being a court of a State invested with federal jurisdiction, pass a law which imposed an incompatible function upon that invested court?
We would say the answer to that is clearly "No". But it is clear that the judicial power of the Commonwealth is shared amongst this Court, the federal courts and the State courts and that one has one Australian judiciary in that respect. It is true, of course - and we have never suggested to the contrary - that the State courts derive from their State genesis jurisdictions other than the federal judicial power. That is obvious.
But then one comes to the crucial question: if the Commonwealth cannot impose an incompatible function, how can it be that the State Parliament can impose an incompatible function? We submit the answer to that is that the State Parliament could not. And the reason why it could not is the supremacy of the Constitution, of the Commonwealth. That is Chapter III standing alone or Chapter III plus section 39(2) and section 109, of course.
Therefore, we say, if you have a State attempt to confer an incompatible jurisdiction upon a possessor of the judicial power of the Commonwealth, the Act of the State is invalid either as being forbidden by Chapter III or as being inconsistent under section 109 and we would submit the true basis of invalidity derives from Chapter III. Your Honour, that is I think all I want to say in answer to the submissions my learned friends have made upon this point. What they would seek to achieve is an Australian judiciary exercising the judicial power of the Commonwealth but divided into two classes: one is an inferior class, namely, the invested possessors of it who are subject to the imposition and receipt of incompatible functions, and the other the federal possessors of it who are not so subject, and we submit that is just inconsistent with Chapter III.
Your Honours, there are a number of reasons why we say the Act is invalid - the Community Protection Act is invalid - but can I just - I do not want to read these passages out seeing that perhaps I can finish before lunch and your Honours obviously must be weary of this case. What I want to refer your Honours to is some passages in Polyukhovich [1991] HCA 32; 172 CLR 501, at page 534 where the former Chief Justice says that the legislative interference in the exercise of judicial power is invalid; page 609 at lines 4 to 8 where it is pointed out that the exercise of judicial powers may not be directed; page 617 at the bottom of the page where Justice Deane, admittedly is dealing with ex post facto law and he quotes Calder v Bull where it is pointed out that changing the laws of evidence retrospectively so as to procure a conviction or changing the laws of evidence so as to procure a conviction is forbidden or struck down by the separation of powers doctrine. That is page 617.
Then we would also rely on page 625 where, again it is Justice Deane, when he refers to Liyanage and says the vice was that the judges were deprived of their normal discretions. We say this Act is a classic illustration, beside which, the attempt in Liyanage marches arm in arm. Your Honour Justice Dawson at page 647, the sentence beginning, "The proper judicial exercise", I think it is. Then, at page 649 when your Honour says, "It is when the legislature intervenes" - and I am now relying from my notes, so your Honour will pardon me if I am misquoting - but Your Honour has a sentence beginning, "It is when the legislature intervenes" and then at pages 650 to 651 and then where your Honour ends up saying that the legislation would be held to be invalid.
Then, your Honours, there is a passage at page 684 to 685, that is the bottom of 684 to the top of 685, and passage in the judgment of your Honour Justice McHugh at 719 to 721. Now, your Honours, the question here is a simple question, really. The State Act seeks to put a person in prison. In other words, to deprive him of his liberty. You cannot say that that is anything other than a punishment. Being put into gaol cannot be anything else.
Being put into gaol indefinitely is a most horrendous punishment and that is the possibility that the Act exposes and the vice is that it intrudes by section 3, 5 and the provisions about evidence into the exercise by the judge of a judicial function of deciding the liberty of the subject. Now that is all I wish to say in reply, if the Court pleases.
BRENNAN CJ: Sir Maurice, do you wish to say anything with regard to the relief if you should succeed on this appeal?
SIR MAURICE: Your Honour, those who supported, as we would submit, correctly, the notion of equality, were in the minority, and - "relief", I beg your Honours' pardon, I am sorry; I thought your Honour was talking about Leeth.
BRENNAN CJ: No, no, relief.
SIR MAURICE: It was pointed out to me, I think on the special leave application, with no absence of firmness, that I stood little ground there. However, what we say is, we would seek a declaration that the Community Protection Act is totally invalid. We would want an order that the appeal to this Court be allowed with costs, an order that the order of the Court of Appeal be set aside and that in lieu thereof it be ordered that the appeal from the decision of Mr Justice Levine be allowed and the order for preventive detention of the appellant made by that learned judge be quashed. My friend says, "Ask for costs"; I though I had. I thought the appeal should be allowed with costs, but I think he means from Mr Justice Levine.
GUMMOW J: Sir Maurice, Mr Mason says that even if the rest of the Act falls the State can hang onto section 28, which confers immunity in various respects. You say that would have to go too?
SIR MAURICE: Yes, your Honour. It is all bound up. Your Honour, one cannot have section 28 standing up in solitude like a crane on a mountain, as it were. It is just ridiculous. If the rest of the Act is invalid, section 28 must go too. As I am reminded, section 28 says, deemed in good faith:
for the purposes of, or in connection with the administration or execution of, this Act.
So if the Act goes, 28 must go. I think that is about all I wish to say, if the Court pleases.
BRENNAN CJ: Thank you, Sir Maurice. The Court is indebted to you, Sir Maurice, and to the Solicitors-General for the assistance we have been given in this case. The Court will consider its decision in this matter.
AT 12.49 PM THE MATTER WAS ADJOURNED
Source:
Transcripts
(what some people will do for prestige)

Supreme Court of New South Wales

Kable v Dr Westmore Matter No 20033/97 [1997] NSWSC 653 (16 December 1997)

Kable v Dr Westmore

20033/97

16 December 1997

Master Malpass

The Supreme Court of New South Wales Common Law Division


20033/97 - Kable v Dr Westmore

JUDGMENT

MASTER: The plaintiff was convicted of manslaughter of his late wife. Between September 1989 and 4 January 1995, he served a sentence of imprisonment for the manslaughter.

Whilst serving that sentence, he engaged in conduct which was seen by some as threatening violence to members of the community. His impending release attracted controversy.

In December 1994, the Community Protection Act, 1994 (the Act) was enacted. It purported to enable the making of Preventative Detention Orders.

Thereafter, the Director of Public Prosecutions brought process under the Act. Firstly, an Interim Detention Order was made by Hunter J. Secondly, a Preventive Detention Order for six months was made by Levine J. An appeal to the Court of Appeal was unsuccessful. The plaintiff then sought leave to appeal to the High Court.

Grove J declined to make a further Detention Order. The plaintiff was released upon the expiry of the Detention Order. His appeal to the High Court was successful and the Act was invalidated (including section 28 which purported to protect certain persons from liability).

The defendant is a forensic psychiatrist. He has prepared certain reports concerning the plaintiff (including reports dated 11 November 1994, 21 November 1994, 30 March 1995, 9 June 1995 and 1 August 1995). The instructions came from the Crown Solicitor's Office and reports were used in the process brought by the Director of Public Prosecutions (the DPP).

By 14 November 1994, the defendant had been expressly made aware of the possibility of legal proceedings. By 21 March 1995, he had been appointed as an assessor under the Act and reports were prepared pursuant to its statutory requirements. He gave oral evidence in legal proceedings.

In these proceedings, the plaintiff propounds a claim for damages. His originating process has been amended a number of times. The present formulation of the claim may be found in the Further Amended Statement of Claim. This document contains a variety of allegations. It appears to have been drafted by the plaintiff himself and there is difficulty in discerning the precise case sought to be advanced. For present purposes, it is not necessary to make exhaustive reference to all of the allegations. However, I shall mention some of them.

It is alleged that the defendant was retained by the State of New South Wales to examine and report on the plaintiff.

It is alleged that reports (being those of 11 November 1994 and 21 November 1994) were produced and disseminated without the plaintiff's consent and without an examination of the plaintiff.

There are allegations of false imprisonment by the State of New South Wales and of subjection to compulsory examination by the defendant under the Act. It is alleged that the defendant was an accessory to an "Abuse of Process" by acting as agent for the Government. These seem to be related allegations. It is said that the abuse resulted in imprisonment and permanent labelling. There are allegations of trespass and assault. These allegations seem to be related to earlier allegations. There are allegations that the reports were false and misleading and damaged the plaintiff's reputation. There are allegations of negligence. It is said that the defendant was seeing the plaintiff as a doctor and/or in the capacity of assessor and that he was negligent as a professional doctor (the Particulars of Negligence appear to be set forth in paragraph 18). There are allegations of breach of the provisions of section 42 of the Fair Trading Act. The allegations of damage may be gleaned from the contents of paragraph 23 and the second of the two paragraphs numbered 10 of the document (these include pain and discomfort, loss of liberty, shock, depression and anxiety, and economic loss).

On 1 August 1997, the defendant filed a Notice of Motion. It seeks, inter alia, an order that the proceedings be dismissed generally. A special fixture was allocated for the hearing of the Notice of Motion on 11 December 1997.

The defendant is seeking summary dismissal of the proceedings. The Court has a discretionary power to grant summary relief. The power is exercised having regard to the relevant circumstances of the particular case and so that justice is best served between the parties. The applicant for summary relief bears the onus of satisfying the Court that an order should be made. There is ample authority for the proposition that the relief should only be granted in what has been described as clear cases (see Webster v Lampard [1993] HCA 57; 116 ALR 545).

Before proceeding to deal with the summary dismissal application. I should digress to deal with certain preliminary matters which cropped up at the commencement of the hearing, upon the defendant seeking to file an Amended Notice of Motion.

Leave to file the Further Amended Statement of Claim was obtained from the Court subsequent to the allocation of the special fixture for this hearing. Leave was given with the consent of the defendant. However, there has been dispute between the parties as to the terms upon which that consent was given. The defendant was of the understanding that the plaintiff had given his consent to the filing of an Amended Notice of Motion on terms which allowed the defendant to agitate an application for the striking out of the process on the basis of pleading deficiencies. Exhibit 1 (which was tendered by the defendant) did not give support to that contention. Because of the particular circumstances of this case and the practice usually followed by this Court in relation to special fixtures, the application for amendment of the Notice of Motion was refused.

Before leaving this aspect of the matter, it may be observed that it is apparent from the face of the Further Amended Statement of Claim that it is plagued with a number of pleading deficiencies. However, for present purposes, I put the matter of pleading deficiencies to one side.

The application has been argued on the material to be found in the pleadings and in the affidavit sworn by Jann Cordeaux Cathels (which was read without objection). The affidavit annexes copy correspondence and reports from the defendant. Also, it deposes to the matters set forth in paragraph 3 thereof. The plaintiff has not placed any evidence before the Court. His submissions contained criticism of aspects of the affidavit evidence.

Counsel for the defendant has prepared a written outline of argument. This document has been supplemented by detailed oral submissions and references to authority.

The plaintiff appears in person. He has prepared a lengthy and detailed written submission containing various annexures. This document was supplemented by oral submissions.

There have been many matters agitated in these submissions. It is not possible to deal with all of the matters that were raised. However, the parties are assured that careful consideration has been given to all of the submissions that have been made.

The defendant relies on a defence of witness immunity to the claims made by the plaintiff. It is conceded that the principle would not apply where there is an allegation of a physical nature (such as in the usual assault or trespass case). In this case, allegations of that nature are absent.

The authorities (including Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130; Evans v London Hospital Medical College (University of London) (1981) 1 WLR 184; X v Bedfordshire County Council [1995] UKHL 9; (1995) 2 AC 633 and Hillman v Black & Ors [1996] SASC 5941; (1996) 67 SASR 490) demonstrate that the defendant does have a good defence to the claims which the plaintiff seeks to make in relation to the reports prepared by the defendant and the evidence given by him.

In Cabassi (at pp 140-141), it was said that no action lies in respect of evidence given by witnesses in the course of legal proceedings (no matter how false or malicious the evidence may have been and whether or not it was given as part of a conspiracy). The protection has been said to extend to evidence prepared, given, adduced or procured by witnesses in the course of legal proceedings. This "rule of law" (Cabassi at p 141) extends beyond the evidence that is given in the proceedings to acts involved in preparatory processes (including communications, information and reports given by a potential witness).

In this case, the claims made by the plaintiff relate to reports prepared by the defendant in response to instructions and the evidence given by him in the legal process prosecuted by the DPP.

I shall now turn briefly to some of the other matters agitated by the parties. Firstly, there is the matter of negligence.

Whilst the claim purports to be framed in negligence, in substance it relates to the matters of the reports and the evidence given by the defendant. The defendant further contended that it was doomed to failure because no duty of care was owed to the plaintiff in the circumstances of this case. Again, the defendant looks to, inter alia, the X case as authority for this submission.

The authorities make it clear that it may be difficult at an early stage in a proceeding to form a view as to the prospects of success of a claim framed in negligence. Whilst the arguments put on behalf of the defendant appear to have considerable force, this case does have some novel features (viz. the role as an assessor under the Act). The question of the owing of a duty of care has not been fully argued and does not need to be determined in this case.

The pleading uses the terms abuse of process, assault and trespass. The pleading does not contain the statement of material facts necessary to found any of these alleged causes of action. The material does not suggest any arguable claims of this nature. The submissions further exposed the untenability of the allegations of assault and trespass. It was made clear that these allegations were founded on the dissemination of reports and the emotional effect had on the plaintiff as a consequence of his reading of reports. In my view, the allegations made under the guise of these terms are doomed to failure.

The allegations of breach of section 42 of the Fair Trading Act appear to relate to the reports and oral evidence (see paragraph 17). They are also otherwise doomed to failure. There is a bare allegation of breach. The alleged false and misleading conduct is not identified. It cannot be said that what was done by the defendant could be arguably regarded as being "in trade and commerce".

It is not said that the defendant falsely imprisoned the plaintiff. The concept of False Imprisonment appears in paragraphs 9, 19 and 20. Paragraphs 19 and 20 are intended to propound claims made in the alternative. The nature of the allegations sought to be made is unclear. There appears to be an association with either "Abuse of Process" or "Trespass". The role of the defendant is that of "Agent for the Government" or "accessory". The pleading does not contain the requisite statement of material facts which enable the disclosure of a cause of action relating to "False Imprisonment". The submissions saw the making of many assertions (including a contention that the defendant was aware from the outset of the invalidity of the Act). In any event, it seems that the words are used in respect of the matters of the reports and evidence. Finally, it has to be observed that the material demonstrates that this aspect of the claim is otherwise doomed to failure.

In applications of this nature, the Court takes into account the consequences of the granting of summary relief. The plaintiff may be deprived of the use of interlocutory processes of the Court and his case does not go to trial.

In submissions, the plaintiff repeatedly stressed his need to have the benefit of cross-examination of the defendant. The stress placed on this matter unfortunately focuses attention on the weaknesses of his case. It highlighted the hope had by the plaintiff that cross-examination would reveal a case which is not presently shown to exist.

The plaintiff clearly harbours strong feelings in relation to the defendant. Unfounded allegations were rampant. The case is very much seen in emotive terms. However, it must be appreciated that the Court is required to determine this application according to law.

In the circumstances of this case, I am satisfied that it has been demonstrated that this is one of the clear cases which justify the granting of summary relief.

I order that the proceedings be dismissed. The plaintiff is to pay the costs of the proceedings. The exhibit may be returned.  

Source: Kable v Dr Westmore Matter No 20033/97 [1997] NSWSC 653 (16 December 1997) 


Supreme Court of New South Wales


Task Force Harm

Kable v State of NSW and Anor [2000] NSWSC 1173 (15 December 2000) 

Excerpts: Judgement

The decision of Registrar Irwin of 16 March 2000

17 The first defendant sought to set aside paragraph 10 of a notice to produce issued by the plaintiff. On 16 March 2000, Registrar Irwin ordered that the notice to produce be set aside and the plaintiff/respondent pay the costs of the defendant/applicant.

18 Paragraph 10 of the notice to produce reads as follows:

"Any and all originals and copies of documents with regard to Task Force Harm, and without limiting the generality thereof:

(a) the terms of reference of Task Force Harm;

(b) the membership of Task Force Harm;

(c) agendas and all meeting papers and all records of meetings of Task Force Harm;

(d) recommendations and reports made by Task Force Harm."

19 The whole of the paragraph is the subject of objection. "Task Force Harm" was set up in 1995 and is still in existence. It is a name given to a group of people within the Crown Solicitors office established to provide advice to the government concerning the plaintiff and subsequently to the DPP. These documents comprise of 34 boxes of material.

20 The grounds relied upon for setting aside the notice to produce were that firstly, it was a fishing expedition and it is uncertain in its meaning and it amounts to discovery. The registrar held that the documents described in the notice to produce were not uncertain and this finding is not challenged. The argument that it was lacking legitimate forensic purpose was not argued and has been stood over to be determined on another occasion. In relation to fishing, the registrar stated:

"The Plaintiff/Respondent does not says that he has any evidence of these matters beyond the decision of the High Court in Kable . Master Harrison in her judgment of 18 March 1999 in these proceedings found that the High Court had not determined the causes of action of malicious prosecution, false imprisonment, assault or abuse of process. To date the plaintiff had failed to provide any evidence of any malice, absence of reasonable cause, or improper purpose.

It was submitted on behalf of the Plaintiff that access to the material the subject of the notice would permit the real issues to be tested and would bear on the issue of the degree of collaboration between the First and Second Defendants and their respective roles in instituting and maliciously prosecuting the proceedings. Provided that the material sought by the notice was relevant to the issues in dispute it could not be said to be "fishing".

The editors of Halsbury's Law of Australia at 325-7420 state in relation to "fishing" that "the subpoena is served not for the purpose of requiring production of specific documents or a specific class of document which the person subpoenered (sic) is reasonably expected to hold and which are likely to advance the issuing party's case but with the intention of seeing what documents the party served may have, and whether the issuing party has a case at all. It is not necessary however, that a party serving a subpoena knows of the contents or existence of the documents sought". In Commissioner for Railways v Small (1938) 38 SR 564 Jordan CJ at 564 said "as a party is no more entitled to use a subpoena duces tecum than he is a summons for interrogatories for the purpose of "fishing" ie. endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all;" and His Honour cited Hennessy v Wright (1890) 24 QB 445).
That was a libel action arising out of a newspaper report based on a certain manuscript. The plaintiff had administered interrogatories to learn the text of that part of the manuscript on which the report was based which might not have been published with a view to ascertaining whether the author was motivated by malice. Lopes LJ said "If the Plaintiff wants to know the name of the correspondent in the Mauritius, or to see the original manuscript merely for the purpose of obtaining information in order that he may see if he has a case of which he has at present no knowledge or only a very partial knowledge, I am clearly of the opinion that on that ground the interrogatories should not be allowed."

I accept that the material sought might contain information relevant to the issues but the Plaintiff/Respondent does not know if it does. He is therefore in the position described by Jordon CJ in Smalls case. The notice should be set aside on the ground that it is fishing."

21 The plaintiff's counsel conceded that the plaintiff had "no evidence of any actual ill-will". However the plaintiff submitted that he will seek to establish malice in the broad sense based on the findings of the High Court. Some additional authorities namely Hanahan v Ainsworth (1990) 22 NSWLR 73, United Telecasters Sydney Pty Limited v Hardy (1990-91) 23 NSWLR 323 and Spautz v Gibbs (1990) 21 NSWLR 230 were referred to by the plaintiff. It was submitted that the findings in the High Court decision itself when put to the jury would be sufficient evidence of improbable cause. Plaintiff's counsel did not submit that there were no intentional elements in the torts of malicious prosecution and abuse of process but rather that, in a wide sense, the objective facts could allow the jury to find that these causes of action were established. If this be the case, then the documents sought are not necessary, and irrelevant.

22 The plaintiff relied on the following statements from the High Court decision in  Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51. The formal basis of the holding of invalidity was that the Community Protection Act 1994 (NSW) was incompatible with Chapter III (the Judicature) of the Commonwealth of Australia Constitution per Toohey J at 99.5, Gaudron J at 108.3, McHugh J at 124.3. According to the plaintiff the followig passages of the High Court decision support findings that Act diminished public confidence in and compromised the integrity of judicial proceedings (Toohey J at 98.6; Gauldron J at 107.4; McHugh J at 121.8, 124.4) and that the Supreme Court was required to participate in the making of a preventive order where no breach of the criminal law was alleged (Toohey J at 98.9 and 100.7); Gauldron J at 106.3; McHugh J at 121) and that the proceedings did not have the character of judicial proceedings (Gaudron J at 106.2, 106.9-107.3; McHugh J at 122.2) and were a mockery of judicial proceedings (Gaudron J at 108.2; McHugh J at 122.5) and was an exercise of political executive jurisdiction (McHugh J at 122.6, 124.2) and a denial of equal and impartial justice without the ordinary processes of law (Gaudron J at 107.9, McHugh at 124.4). These statements must be read in context.

23 In my earlier judgment I stated:

"The plaintiff's Counsel conceded that the onus is on him to demonstrate that there is evidence of the facts, but submitted that there are no facts that are truly in issue and that the decision of the High Court implies that there was malice. It should be noted that the first defendant was not a party to the High Court proceedings. It is my view that the High Court did not imply malice nor did they consider malicious prosecution, false imprisonment, assault and the other causes of action pleaded by the plaintiff.

The plaintiff referred to R v Governor of Brockhill Prison ex parte Evans (No 2) [1998] All ER 993 particularly the following passage by Lord Woolf MR:

"The appeal raises issues of importance involving two principles which are deeply embedded in our law. The first is that any authoritative decision of the courts stating what is the law operates retrospectively. The decision does not only state what the law is from the date of the decision, it states what it has always been. This is the position even if in setting out the law the court overrules an earlier decision which took a totally different view of the law. The second principles is that a person imprisoned without authority is entitled to damages irrespective of any question of fault on the part of the person responsible for the imprisonment."

A person alleging abuse of process must show that the predominant purpose of the other person using the legal process has been other than that for which it was designed and there is a heavy onus placed upon the party alleging it - (see William v Spautz [1992] HCA 34; (1991-92) 174 CLR 509, joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ at p 529). Malicious prosecution requires the plaintiff to prove that there was an absence of reasonable or probable cause for instituting proceedings and malice in instituting them. The mental state of the defendants through their officers will be relevant. There is no evidence on this issue before the court. The High Court in  Kable did not determine these causes of action of malicious prosecution, false imprisonment, assault or an abuse of process. "

24 I agree with Registrar Irwin that the documents may contain information relevant to the issues but the plaintiff does not know if it does. However, from that point onwards my view diverges from that of the Registrar.

25 It could be expected that if Parliament was motivated by ill-will or that legal process was being used for a purpose other than that for which it was designed, the advice from the Crown Solicitors office and the instructions provided by Parliament would be found in the Task Force Harm documents referred to in paragraph 10 of the subpoena. In other words, these documents would establish whether or not the intentional elements of the torts of abuse of process and malicious prosecution were present. As James J stated in Sourian v State of NSW & Ors [1999] NSWSC 1173, namely malice without reasonable and probable cause (at p 39 para 191), pre-trial the plaintiff has no chance of establishing two elements of malicious prosecution. Alternatively, the intention of the parties may be ascertained from the administration of interrogatories.

26 It is my view that the plaintiff in seeking that the documents contained agendas, all meeting papers and records of meetings of Task Force Harm and recommendations and reports made by Task Force Harm may contain evidence that support his case. I do not think that the plaintiff is fishing to see whether or not he has a case.

27 It is my view that the decision of Registrar Irwin was incorrect and should be set aside. Accordingly the review is upheld. The order of Registrar Irwin dated 16 March 2000 is set aside. Costs are discretionary. Costs are to follow the event. The first defendant is to pay the plaintiff's costs.

28 The orders I make are:

(1) The decision of Registrar Irwin dated 16 March 2000 is set aside.

(2) The first defendant is to produce documents in accordance with paragraph 10 of the subpoena by 31 January 2001.

(3) The first defendant is to pay the plaintiff's costs.

**********

LAST UPDATED: 29/01/2001 

Source: Kable v State of NSW and Anor [2000] NSWSC 1173 (15 December 2000) 


HUMAN  RIGHTS  AND  THE  CRIMINAL  PROCESS IN AUSTRALIA

Nicholas Cowdery QC
Director of Public Prosecutions, New South Wales
President, International Association of Prosecutors
Inaugural Co-Chairman, Human Rights Institute, IBA
Dublin, 19 May 2001

AN EXAMPLE 

A good illustration of the operation of the fourth limitation described above (being an aspect of the doctrine of the separation of powers) and its indirect effect on the criminal process is the case of Gregory Wayne Kable. It is worth taking a moment to consider it. Mr Kable was a prisoner, having been sentenced for the manslaughter of his estranged wife (committed with a knife during an argument over access to their children). He wrote many letters and other documents from prison, mostly to his children and their guardians, which the authorities interpreted as foreshadowing future offending once he was released. The material was threatening in part, based on his view that he had been deprived unreasonably of contact with his children during his incarceration. 
In 1994 and by a later amendment the NSW Parliament purported to create the Community Protection Act, a one-man Act, specifically directed to keeping Kable in custody for periods beyond his otherwise date of release (presumably until he ceased his threatening behaviour). To add insult to injury, I was designated in the Act as the person with responsibility for applying to the court for custody orders to keep him inside. (I was not consulted about this in advance and my subsequent strongly expressed protests fell on deaf ears.)
A couple of interim orders were in fact made before the appeal process resulted in the High Court of Australia, our ultimate court of appeal, ruling the legislation unconstitutional. Mr Kable consequently became entitled to a great deal of public money and for whatever reasons has been of no trouble whatsoever since his release from prison.
This case demonstrated at least two things: first, the obstinacy of a government intent on banging the law and order drum, whatever the fundamental flaws in its arguments; and secondly, the reassurance provided by the High Court of the operation of the doctrine of the separation of powers in Australia.
(For my part, I cannot understand the apparent reluctance of the English government to allow the courts to strike down offending legislation. Under the doctrine of the separation of powers this is one of the functions of the courts. There is no provision in either the Australian or the American Constitutions expressly providing for legislation to be declared invalid by a court, but we have been doing it for 100 years and the Americans have been doing it for nearly 200 years – since Marbury v Madison in 1803.)

Source: Human Rights and the Criminal Process Dublin, 19 May 2001

JURISPRUDE AND KABLE

Words 4105 23rd May 2002. Newcastle University Assignment

” What conception of the Rule of Law is evident in the opinions expressed in Kable………”

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51

The Habeas Corpus Act 1640 [35] imports absolutely the guarantees on the rights and liberties of subjects of Her Majesty, who reside within the self governing colony referred to in the Section 8 of the Commonwealth of Australia Constitution ACT. Section 8 abolishes the Colonial Boundaries Act 1895 , and creates one colony, “united in one in dissoluble Federal Commonwealth”[36]. The High Court of Australia by a majority arrived at the same result, that would have ensued if Gregory Wayne Kable had been indicted[37] and acquitted. Sir Maurice Byers, then 78 years old, knew Kable was right to object to his Star Chamber[38] treatment. Kable pleaded the Constitution. He pleaded it at first instance, on appeal and in the High Court. His plea was not heard by Levine J, and Kable was jailed for six months under the Community Protection Act 1994. Grove J, another Supreme Court Justice was more circumspect. He refused to jail Kable, after two learned professors[39] voiced criticism of the legislation. The hand of the Director of Public Prosecutions was forced to take it to the Court of Appeal. They affirmed the legislation. Kable was granted leave to appeal to the High Court of Australia. He was successful there. The decision was four to two[40].

The entire Court has forgotten its obligations to the Australian people and to itself, by failing to enforce its judgments as law, and failing to uphold the rules of law it promulgates. The State of New South Wales had committed the most vile trespass possible on Gregory Wayne Kable. They had taken away his liberty without due process under the rule of law . They had erected a Star Chamber, where one Australian could put another Australian away. They had convinced one of their public officials[41] to act as an arbitrary judge. This was and is absolutely unconstitutional. After the English had had their Star Chamber for some years, they abolished it by the Habeas Corpus Act 1640. 16 Car 1 c10. They then declared the law with regard to the Crown. “The King or his privy council shall have no jurisdiction over any man’s estate[42].”

That law was law in New South Wales at the formation of Australia as one colony, or an independent nation. It was a condition precedent to the formation of that entity. If Dicey, Bentham, Austin, HLA Hart and Dworkin, as jurisprudential thinkers are correct, then the plain words of section 118 Constitution are and remain sufficient to bring in the Habeas Corpus Act 1640. 16 Car 1 c10. Sir Maurice Byers urged the court to apply Section 109 Constitution, coupled with section 5 of the Commonwealth of Australia Constitution ACT.

The rule of law depends upon estates. A mans estate is his body and all his possessions. Trespass upon any part of that estate is unlawful. It has been unlawful since before the Magna Charta in 1215, but before that, the King was allowed to trespass. On pain of civil war, the King granted to his subjects a Great Charter, which was to govern, and has governed relations between the Crown and the subjects of the kingdom ever since. 

Community Law Resource Group

Educating people on how a community is governed by written laws!
 
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Application to the Supreme Court for Damages

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). 


Download Related Audio
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?

Supplementary

1) 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 Doctrine. 

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.....

Court of Appeal New South Wales



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]

Court of Appeal New South Wales



NSW to pay for man's 'repugnant' jailing

The Supreme Court found on Wednesday 8 August 2012 that Gregory Wayne Kable was unlawfully imprisoned and should be awarded damages.

His advocates say he was a political "poster boy" for a NSW election campaign run on law and order.

Mr Gregory Wayne Kable, who was jailed in 1990 for the manslaughter of his wife with a non-parole period of four years, has successfully sued the state for wrongful imprisonment.

During the first twelve months in jail Mr Kable wrote threatening letters to people that were denying him access to his children just 4 years of age and 2 years of age after a very sharp separation of them and was given an additional term of 16 months on his original sentence.

A decision was made by the Supreme Court in February 1995, following an application by the DPP, to continue to hold Mr Kable in custody.

The order, made under the Community Protection Act, said a prisoner could be held in custody if a judge were satisfied "he was likely to commit a serious act of violence."

But the John Fahey government passed the Community Preventative Detection Act in December 1994, which extended Mr Kable's incarceration another six months until his release in August 1995.

In 1996, the High Court found the legislation invalid and unconstitutional.

On Wednesday, Brett Collins from Justice Action told AAP that Mr Kable became the political poster boy for an election run on law and order.

In Mr Kable's recent submission to the Supreme Court, Court of Appeal, his lawyers said that just months before he was freed the government foreshadowed legislation that would enable the "preventative detention" of people who were "likely to commit an offence" and could not otherwise be detained.

"(It) applied to only one person in the whole world ... namely Kable," his current appeal submission states.

In the Supreme Court in Sydney on Wednesday, five justices unanimously found Mr Kable had been unlawfully imprisoned by the state for six months, and that NSW was liable for damages.

Mr Collins said the judgment was a vindication for Mr Kable, who had spent years "looking over his shoulder".

"For Gregory he felt that he was personally attacked and that left him feeling quite concerned for his stability," Mr Collins told AAP.

"He always felt that someone might take away his liberty."

In handing down the judgment, the justices said they were "dealing with the non-judicial incarceration of a person, without valid statutory foundation" in a process that was "repugnant and antithetical to legal proceedings and to the exercise of judicial power"

"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 of false imprisonment, with damages to be assessed," they found.

NSW Attorney-General Greg Smith's office told AAP the government was getting legal advice about the possibility of an appeal.

The Court of Appeal remitted the case back to the trial division to hold a further hearing to assess damages.

Stay tuned.....

Case Information

Lower Court Judgment

8/08/2012 Supreme Court of New South Wales (Court of Appeal)
(Allsop P, Basten JA, Campbell JA, Meagher JA, McClellan CJ at CL.)

[2012] NSWCA 243

Catchwords

Constitutional law – Judicial power – Respondent detained pursuant to order of Supreme Court on application of Director of Public proceedings pursuant to purported State legislation – Legislation subsequently held invalid – Respondent sought damages from the appellant for false imprisonment – Whether orders of Supreme Court valid until set aside – Whether the orders of a State Supreme Court exercising federal jurisdiction in resolving the constitutionality of a State Act and exercising powers pursuant to that Act are deprived of the character of judicial orders by reason of the subsequent invalidity of the State Act.

Torts – False imprisonment – Defences – Lawful authority – Respondent held under order of Supreme Court that was subsequently set aside – Whether persons acting to obey orders of a State Supreme Court, which were valid on their face, have defence of lawful authority to tortious liability at common law.

Documents

14/12/2012 Hearing (SLA, Sydney)

19/12/2012 Notice of appeal

19/12/2012 Notice of constitutional matter (Appellant)

02/01/2013 Notice of Contention (Respondent)

02/01/2013 Notice of constitutional matter (Respondent)

25/01/2013 Written submissions (Appellant)

25/01/2013 Chronology (Appellant)

01/02/2013 Written submissions (Attorney-General of the Commonwealth intervening)

01/02/2013 Written submissions (Attorney-General for the State of Victoria intervening)

01/02/2013 Written submissions (Attorney-General for the State of Western Australia intervening)

08/02/2013 Written submissions (Attorney-General of the State of Queensland)

15/02/2013 Written submissions (Respondent)

01/03/2013 Reply

09/04/2013 Hearing (Full Court, Canberra)

*The due dates shown for documents on this page are indicative only. 

AT 3.57 PM THE MATTER WAS ADJOURNED


Professor Philip Bates
      Barrister

Excerpts of the hearing as follows:

MR BATES:   Your Honour, just before the break I was addressing
the contention 1(c) at the bottom of page 1 of our oral outline and I was
answering
your Honour the Chief Justice.  We say that when the order
was made it was not a judicial order and that when it was set aside, as
I have
already said in answer to his Honour Justice Gageler, it was set
aside, in effect, ab initio.  We say that given that this
Act only
applied to one person, there is no meaningful distinction to be drawn in this
case between legislative power and a judicial
order. 
----------

KEANE J: But, Mr Bates, read on:

It does not come before any judge; it is merely obtained by the party in the registry.

MR BATES: Well, your Honour, in my respectful submission, in fact, when one looks at the cases it is not so – and I accept that there are some cases where that is the case, but I will seek to make good the proposition shortly anyway that this idea is not restricted to that situation, your Honour. I will take you shortly in a moment to some passages from the English Court of Appeal and from this Court which at least suggest that principle is not so limited. Thank you, your Honour.

If I could take your Honours next to Plowman v Palmer [1914] HCA 41; (1914) 18 CLR 339. At page 345 in the judgment of Justice Barton:

The writ of habere facias is pleaded by the fourth plea. There is no issue of law. Is the plea proved as a fact? It is, unless the writ itself is a nullity. Is, then, the writ a nullity? I think not.

At least it recognises the possible idea of a null writ. Going to page 346, the top few lines, in Justice Barton’s judgment again, it refers to this distinction between a writ as a nullity and an irregularity. What is interesting, your Honours, is that as one moves to the 20th century there has been a change of terminology, so back in some of the older judgments they were using “erroneous” as distinct from “irregular” and irregular is the more serious kind of defect. Then later on the language shifts. The ideas are the same but the language shifts and the more serious kind of impairment is called a nullity and the less serious one is called an irregularity. So there is that idea there. Then if one goes to page 348, line 3:

What, then, is the test in such a case between a nullity and an irregularity? As the Court of Appeal says in Fry v Moore

That is the English Court of Appeal –

it is sometimes difficult to say on which side of the line a given matter lies, and the line is very thin. The power to waive the objection is rather an accompaniment of mere irregularity –

One of the things I would be submitting to your Honours is that the defects that occurred in the Kable situation under the Community Protection Act were very serious and could not be waived. They went to the fundamental essential and defining features of the court and no individual can waive that, in my respectful submission.

If I could take your Honours then to the next case Munday v Gill [1930] HCA 20; (1930) 44 CLR 38. The actual case dealt with a number of convictions arising out of unlawful assembly cases and the question was whether evidence in one case was evidence against the others but there was a discussion of general principles which I wish to take your Honours to. Your Honours, if I could take you to page 54 in the judgment of Chief Justice Isaacs:

The basic principle relevant to this case is that stated by Lord Atkin (then Lord Justice) in R. v. North; Ex parte Oakey, [(1927) 1 KB 491 at 506] namely, “the want of jurisdiction . . . is based upon the breach of a fundamental principle of justice.” The principle has been variously phrased in prior cases, notably by Lush J. in Martin v. Mackonochie, [(1878) 3 QBD 730 at 739] who held that where an irregularity in procedure is “so vicious as to violate some fundamental principle of justice,” a prohibition is proper. That language was upheld by Thesiger L.J. in the Court of Appeal in Martin v. Mackonochie, [(1879) 4 QBD 697 at 732] and by Scrutton L.J. in R. v. North [(1927) 1 KB 504]. See In re Dillett [(1887) 12 App Cas 459].

If one goes later on to page 61, Chief Justice Isaacs elaborates there at the top of that page - - -

FRENCH CJ: This was all to do with the character of a procedural error involving reception of depositions, was it not?

MR BATES: Yes, your Honour. The answer is it is correct. That is why ultimately, your Honour, the - - -

FRENCH CJ: It is a fair way away from characterisation of an order of a superior court as a nullity.

MR BATES: I accept, your Honour, that in the facts of this case that is why their Honours did not apply that, but what I am trying to - - -

HAYNE J: It is not just the facts, is it? The question as identified by Chief Justice Isaacs was whether prohibition would go, whether prohibition would go to an inferior court. What do we get out of that for this case?

MR BATES: I will take your Honour to some more direct expressions dealing with superior courts in a moment. Your Honour, my submission is that it is not confined to inferior courts.

KEANE J: Would it not be best to take us to the case that says that?

MR BATES: Well, your Honour, the strongest case is Posner’s Case, Posner v Collector for Inter-State Destitute Persons (Vic) [1946] HCA 50; (1946) 74 CLR 461. If I could perhaps take you to Justice Williams’ judgment, although he dissented in the outcome of this case he was not in dissent on the reasoning or the general principle. Page 49 about point 8:

An order of a superior court is never void, but only voidable. An order of a superior court, which is made in the absence of a person who has not been duly served, has often been described in judgments of the highest authority as being null and void and so lacking in efficacy that it can be disregarded. The latest of these authorities appear to be Craig v. Kanssen; Marsh v. Marsh. I take the expression “null and void” where it occurs in these judgments in reference to a superior court to mean that the person against whom the order is made may disregard it in the sense that it is so fundamentally impeachable that he is entitled to have it set aside in the inherent jurisdiction of the court which made it ex debito justitiae if at any time it is sought to be enforced against him.

Then he goes on and talks about inferior courts, so this is dealing directly with that situation.

HAYNE J: Does that not show the difficulty, namely, it shows that the process to take - to intercept enforcement is to set aside the order. Absent setting aside the order, the order stands.

MR BATES: Yes, your Honour, that came back to what I have called a provisional validity. Just to remind your Honours of how we put our submissions, we say this was not our judicial order. If you are against us on that, we say that even though it had a validity of some provisional sort while it was still there but once it was set aside - and this is the important step - it is set aside ab initio, as with a bankruptcy annulment. We say that is what is meant by the words “null and void” in that passage that I have just read to your Honour from Justice Williams.

--------

MR BATES: Well, your Honour, Justice Dixon is actually quite interesting, and in some ways we do draw support from it, your Honour, and I was going to take your Honour to Justice Dixon at page 483, point 6. He talks about a modern tendency at about point 6, a modern tendency, which is a rather interesting word:

to sustain the authority of orders until they are set aside –

That may be a tendency but, your Honour, what I am trying to show your Honours is not that this line of authority compels the outcome of this case, what I am trying to really show your Honours is this - that my friends advanced the proposition as a proposition without qualification or exception or reservation that a judicial order of a superior court is valid until set aside.

What I am trying to demonstrate to your Honours is that there is also a sort of qualification or reservation to that line of decisions that says, yes, but there are certain categories of orders made by superior courts where there are grave procedural irregularities which have the effect that the order does not have the full effect.

Now, your Honours, I accept it does not compel the case here, but my respectful submission is that that line of thinking does inform the way in which your Honours should interpret Chapter III impairments in this case - that is how I put it to your Honour - just to show that there really is this other category. So, if I could move on from that, your Honours.

---------

Your Honour, the next point, going to page 2, paragraph 3 of our outline, is the federal jurisdiction issue and the suggestion that is made against us that because Justice Levine had a constitutional challenge and that he ruled on that, then that then picked up the Community Protection Act and federalised the dispute, and that the rest of the dispute, including the Community Protection Act proceedings, were there for, relevantly, a judicial function that appears to be the argument we have to meet. In our respectful submission, your Honours would not be persuaded by that argument, but we say it was rightly rejected by the Court of Appeal.

The argument against us relies on the interpretation of the word “matter”, but in answer to that we say one has to go back to the nature of the Kable impairment, which is the function. The court is exercising a certain function. Although it is true that Justice Levine had to deal with the constitutionality of the Community Protection Act we say that does not then give immunity – that is the wrong word to use - we say that does not mean that anything he does after that by definition becomes a judicial order. In our respectful submission, that is a step this Court should not take.

We say that one of the things that is clear from this Court’s decision in Kable 1996 is that it was not just the order itself that was defective. It was the whole proceedings, the substantive proceedings, the actual embarkation on the actual proceedings. It did not occur that way, but a way to think about it, we submit, is that his Honour could have dealt, as a separate question, with the question of constitutionality. He dealt with it as part of other things, but it could have been dealt with that way, as a separate question, and that separate question could indeed potentially have been the subject of appeals perhaps all the way up the ladder before embarking on the rest of the case, remembering, of course, that Mr Kable was already detained anyway under other laws.

If, in fact, Justice Levine had just dealt, as a separate question, with the constitutional issue and that that had taken a separate course all the way up to the High Court, the legislation would have been unconstitutional and no order would have been made against Mr Kable under the Community Protection Act.

Now, Chapter III, in our respectful submission, should not turn on an issue such as whether or not procedurally the determination of constitutionality was dealt with in the course of other proceedings rather than as a separate question. In our respectful submission, Chapter III is a far more important protection of rights than that. In our respectful submission, one has to go back to Kable 1996.

What was it that made that a Kable impaired process? It was not the constitutional aspect. It was the actual proceedings, the whole proceedings under the actual Act. Justice Levine did not need the Community Protection Act to rule on the constitutional issue. He had that jurisdiction already, he had that jurisdiction from the Judiciary Act and from the Constitution and from the inherent powers of the Supreme Court. He did not need the Community Protection Act to deal with constitutionality, he had that jurisdiction.

He did need the Community Protection Act to deal with the actual order that was made under the Act, and that is the distinction. The real authority that he relied upon for the constitutional issue was not the impugned Act, and so although it may be federalised it was not really the same – it was not – it was a separate issue, it was a separate function. The function that was criticised by this Court in 1996, it was not the function of ruling on constitutionality. It was the function of dealing with the substantive proceedings under the impugned Act. That is how we distinguish the federal jurisdiction point, your Honours.

----------

Now, your Honours, moving on then to the issue of what I call the gaoler’s defence, at paragraph 4 of our outline we make a number of submissions here, your Honours. First of all we say that it is no defence to the gaoler – that is, to the servants or agents of the appellant – if this was not in fact a judicial order. It is no defence to detain someone because of a belief, even on the face of the document, that it was a judicial order. There either was authority or there was not, and there was not.

KEANE J: So you say that the officer of the Executive Government was bound to come to his own view about whether the order was valid or not?

MR BATES: No, your Honour. Well, your Honour, realistically I accept the proposition that the gaoler would probably take the view that what appeared to be an order, in the sense it was on a bit of paper and had a stamp on it, probably thought it ought to be followed.

KEANE J: That is how most orders appear.

MR BATES: Yes, your Honour, but it was not in fact. To take a different example, your Honour, suppose - - -

KEANE J: Well, what I am asking you is, so in that situation where you say it was not in fact, more precisely it probably – more correct to say it was not in law an order.

MR BATES: Yes, your Honour.

KEANE J: So is your contention that it was an obligation of an officer of the Executive Government to decide what the law was?

MR BATES: No, your Honour. We put it this way, your Honour. False imprisonment is a strict liability tort. The tort is prima facie complete upon the detention. At that point the onus shifts to the appellant to raise a defence. They have the onus.

KEANE J: We are talking about a system in which the judiciary is that department of government whose characteristic responsibility is to say what the law is.

MR BATES: Yes, your Honour.

KEANE J: That is the foundation of the whole system. It infuses Chapter III. The last thing that would be consistent with that system would be a notion that the ultimate decision-maker as to what the law is would be the Executive Government.

MR BATES: Well, your Honour, there are cases where – in one sense one has a competition here between evils. There is the evil of detaining someone who should never have been detained who has been there for six months and that has to be weighed in the equation as well. We say that at least where the Chapter III threshold has already been met that the evil has been weighed too heavily against Mr Kable by saying his detention was lawful.

KEANE J: Do I take it then that you are not saying that it was the responsibility of the gaoler to decide on whether the order was lawful or not?

MR BATES: No, your Honour, the gaoler was the servant or agent of the appellant. We have not sued the gaoler. The gaoler may have a defence. The gaoler may have a defence of immunity but we are not suing the gaoler.

KEANE J: A gaoler has a defence on the basis that he was acting on a court authority. Where is the tortious liability?

MR BATES: But, your Honour, in our respectful submission, he was acting on his belief he had a tort – his belief which with hindsight we know was wrong. A bona fide belief is not a defence to trespass.

KEANE J: I am sorry, I thought you – do you accept that he was entitled to do what he did on the strength of the court order?

MR BATES: We accept as a practical matter he probably would, but we do not say he was entitled, no.

KEANE J: So you say he was not entitled to act on the court order. So you must be saying that he was duty bound to make his own mind up about what the law was.

MR BATES: No, your Honour, in my respectful submission, that does not follow, your Honour. In my respectful submission, the defence the gaoler might have is different from the appellant’s position.

BELL J: Are you raising section 46 of the Prisons Act as it then was - I think it is - the provision that purports to confer immunity on persons for acts done bona fide?

MR BATES: Yes, your Honour, but that Act did not apply here because under the Community Protection Act - that may have been available in the ordinary case but because of this legislation that did not apply.

BELL J: I see.

MR BATES: What would have potentially arisen, which answers your Honour’s question, is that section 28 of the Community Protection Act was a similar provision but that fell away because he was not detained under the Prisons Act. That did not assist them either. Your Honour, if I could answer – if I could pick up from what your Honour Justice Bell just asked me in further answer to Justice Keane, in many cases the prison officer would have the defence of section 46 or its equivalent in the different States. Indeed, when the matter was argued here in this Court in 1996, the DPP asked this Court to give validity to section 28 but the Court did not do that.

So to answer your Honour in this way, in many cases, although the prison official’s belief that the order had to be carried out would, in fact, be a statutory defence, that comes back to the point I made earlier this morning where I explained that even though an order might not be a judicial order it might be that the conduct can be validated sometimes on another ground.

So, to come back specifically to your Honour’s question, we would say the correct analysis is this, that in carrying out the order, and on the assumption that he had a belief that it was valid, had it been under the Prisons Act he would have had a defence. But it was not under the Prisons Act, it was only under this Act, and we would say there is no common law defence apart from legislation in using the defence. That is how we put it, your Honour.

We say that is an example of the Love principle really, which is that sometimes, even though the order is not judicial, there might be another statutory authority that protects the conduct. That is how we put it to your Honour. Your Honour, if I could take your Honours also to the Crown Proceedings Act (NSW), section 3 defines “Crown” to include the government of New South Wales, subsection (a), or:

(b) a Minister of the Crown in right of New South Wales –

and the definition there of “civil proceedings”. Section 5 says, and this is really Mr Kable:

Any person –

in this case, Mr Kable –

having or deeming himself, herself or itself to have any just claim or demand whatever . . . may bring civil proceedings against the Crown under the title “State of New South Wales” in any competent court.

(2) Civil proceedings against the Crown shall be commenced in the same way, and the proceedings and rights of the parties in this case shall as nearly as possible be the same, and judgment and costs shall follow or may be awarded on either side, and shall bear interest, as in an ordinary case between subject and subject.

If I could then take your Honours to next the Law Reform (Vicarious Liability) Act 1983 (NSW), section 4:

This Act binds the Crown.

Section 5:

“Crown” means the Crown in right of New South Wales –

It defines “independent function”:

“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 his master or the Crown, as the case may require –

“Legal proceedings” means proceedings in a court. If your Honour goes to section 5(2):

(2) In this Act, a reference to –

(a) a function includes a reference to a power, authority and duty; and

(b) the performance of a function includes a reference to the exercise of the function and the failure to perform or exercise the function.

Then section 8, your Honour:

(1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of a tort committed by a person in the service of the Crown –

Could I just interpolate there, the tort in this case is the detention. The actual dentation is the prima facie tort. Then there is a matter raised by way of a defence. The tort is the actual detention that was carried out. It is common ground, it has been admitted, the detention was carried out by the appellant’s servants and agents who are the gaolers.

BELL J: By the gaoler acting on the warrant that issued on the order of Justice Levine? I raise the matter just to inquire, had your client brought proceedings for habeas corpus would it have been a sufficient answer to establish the fact of the warrant based on the order of the superior court?

MR BATES: Your Honour, actually I think what happened in this case, I do not think there was a separate warrant. I think that the order itself was the only authority, but it was like a - - -

BELL J: Well, the same question arises, Mr Bates. Would not the answer to the writ have been complete on satisfaction by proof of the order?

MR BATES: If the order was valid the argument would then get to the same question which was whether it was a valid order or not, your Honour.

HAYNE J: Prima facie, it would not be open to collateral challenge?

MR BATES: Well, yes, your Honour, on our case it would be because it was not a judicial order.

HAYNE J: Just as to this distinction you draw between irregularities and void orders, I think it may be necessary to pay strict attention to the context within which those terms have been used, having regard to what I think is the common form of rules since the 1882 rules, but certainly when I go back to the 1964 and 1965 White Book the then existing rules which distinguished between irregularities or, as they were sometimes described, mere irregularities and steps that were void, in particular Order 2 rule 3 of the rules which I think, as I say, were based on the 1882 rules:

An application to set aside a proceeding for irregularity shall not be allowed, unless made within a reasonable time –

and, in effect, before the party complaining had taken another step. It is in that context that you get this distinction raised between mere irregularities and steps that are void and I think that there is great risk in translating that distinction fashioned in the light of the specific provisions of rules of court into some broader constitutional principle. What I have in mind about void is entry of judgment in default of defence before time for the defence has expired. No authority under the rules held “void”, not mere irregularity.

MR BATES: Yes, your Honour. I accept that, your Honour, but my submission still is that there is a recognition that orders may have an impaired quality.

HAYNE J: Yes.

MR BATES: Your Honour, coming back to your Honour Justice Bell’s question to me, in my respectful submission, the bona fide but erroneous belief would not be a defence in a situation where there is a common law in the absence of any legislative provision equivalent to section 46 that applied. That would be my submission, your Honour.

CRENNAN J: The other point, I suppose, is sometimes the distinctions of which you are speaking are deployed in the context of deciding whether or not a particular order is amenable to prerogative relief, and that was clear from a number of the cases you took us to.

MR BATES: Yes, your Honour.

CRENNAN J: Again, there would be a danger in extrapolating.

MR BATES: There would, your Honour, but one difference here is that this is an action in tort and the onus is on the appellant to make out its defence because the tort is already complete upon the detention. In the other situation, the habeas corpus situation, the applicant for the prerogative writ carries a burden of persuading the court that they have been unlawfully detained. Here the burden shifts to the defendant or in this case the appellant.

In my respectful submission, the belief which is in fact erroneous that the order appears to have validity is not a defence. It is certainly not a defence at least to the appellant, even if it might be a defence to the servant. In my respectful submission, looking at section 8 again of the Law Reform (Vicarious Liability) Act, even if there was at ordinary common law a defence, we say it is taken away by the proper construction of this Act because, we say, if your Honours look at section 8(1)(a) the Crown is vicariously liable for the tort. That is for the detention because it was committed by the gaoler. He was in the service of the Crown - - -

KEANE J: Mr Bates, it is for the tort. It is not for an act or omission. It is for the tort. It is for what is, in common understanding, a civil wrong for which the agent is liable.

MR BATES: Yes, your Honour.

KEANE J: This Act is designed to make the Crown liable too, but it proceeds on the footing that the agent, the gaoler if you like, is liable. So if the gaoler has a good defence, this Act is not engaged because there is no tort.

MR BATES: To try and answer your Honour, if I could take you in fact to a decision of the English House of Lords which we ask your Honours to follow, we would submit that – that is Brockhill’s Case, your Honour, R v Governor of Brockhill Prison; Ex parte Evans (No 2) [2000] UKHL 48; [2001] 2 AC 19. This is a case where the prisoner had been detained in prison. The governor had calculated the dates of detention and release in accordance with the line of decisions that was then overturned.

When the prisoner was detained, as it turned out for longer than he should have been, the calculation of how long he should have been detained was in accordance with this line of decisions that was subsequently disavowed. The question was whether the prisoner had a cause of action, because in fact, or in law to be more precise, in law the calculation had been incorrect, even though at the time he was detained it was in line with the then current interpretation of the law.

The House of Lords decided that the fact that the detention had been in accordance with the calculation of the law as it was then understood was not a defence. If I could take your Honours first of all to page 26 in the judgment of Lord Slynn, about B to C:

It is accepted that false imprisonment is a tort of strict liability equally clearly deprivation of liberty may be shown to be lawful or justified.

About paragraph G on the same page – or actually E to F firstly:

the governor cannot be criticised for what he did –

because he was acting on the then current interpretation of the law - F to G:

If the claim is looked at from the governor’s point of view liability seems unreasonable; what more could he have done? If looked at from the applicant’s point of view she was, it is accepted, kept in prison unlawfully for 59 days and she should be compensated. Which is to prevail?

Despite sympathy for the governor’s position it seems to me that the result is clear. She never was lawfully detained after 17 September 1996. She was merely thought to be lawfully detained. That is not a sufficient justification for the tort of false imprisonment even if based on rulings of the court. Although in form it is the governor, it is in reality the State which must compensate her for her unlawful detention.

Next page, B to C, Lord Slynn says:

The applicant’s case has established the principle and she is entitled to compensation for false imprisonment –

Lord Browne about E on the same page reaches the same conclusion:

false imprisonment is a tort of strict liability, the consequences of which cannot be escaped even by showing that the defendant acted in accordance with the view of the law which at the time was accepted by the courts as being correct.

FRENCH CJ: Ultimately, this was based upon a misinterpretation of the law by the defendant.

MR BATES: Yes, your Honour. I accept that, your Honour, but it did have all the hallmarks that were put to me by Justice Keane. It appeared to be a valid order of the court - - -

FRENCH CJ: It was a valid order. It was a question of what the interpretation was, and there are interpretations by some decisions of courts. There had been a decision of a divisional court which is called into question and the governor got it wrong - backed the wrong horse, as it were.

MR BATES: Yes, your Honour, and - - -

FRENCH CJ: That is very different from acting in response to a valid order later found to be invalid.

MR BATES: Well, your Honour, if it was a valid order, of course, but we are submitting it was not. Your Honour, the last two lines of that page in Lord Steyn’s judgment:

a defendant may be liable for false imprisonment of a plaintiff in circumstances where the defendant acts in good faith on a view of the law which appears to be settled by precedent but which subsequently turns out to have been wrong.

Then he weighs up the arguments at paragraph E to F:

My Lords, the principles of law invoked by the two sides pull in opposite directions.

Then says at H:

On balance I think the arguments of the applicant outweigh those of the Solicitor General.

Then at paragraphs B to C on page 29 it says, in effect, that they agree with a similar decision in New South Wales in Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714:

The New South Wales Court of Appeal held that the commission could be liable –

That is the Corrective Service Commission –

for unlawful imprisonment in spite of the fact that those responsible for the detention acted in good faith in accordance with the law as they understood it –

In my respectful submission, the fact that they are in good faith, or the fact that their interpretation was wrong does not provide a defence at common law. Your Honours, if your Honours then go to page 32 in the judgment of Lord Hope at D:

The tort of false imprisonment is a tort of strict liability . . . the essence of the tort of false imprisonment that the imprisonment is without lawful justification.

At G:

The Solicitor General accepted that the question whether there was a lawful justification for the imprisonment had to be determined at the time of the imprisonment. He accepted that as a general rule it was false imprisonment for a person to be detained after his term of imprisonment had expired –

Then at the top of the next page, about A:

the defence of justification lacks a secure foundation on the facts.

HAYNE J: The nature of the problem is sufficiently identified by Lord Hope at page 31 between letters D and E, I think. “He”, meaning the governor, “is required to apply a set of rules”, et cetera, that sentence, and the calculation that is to be made is further identified by his Lordship at page 30 between lines G and H:

The broad principle . . . periods spent in custody before trial or sentence which are attributable only to the offence . . . are to be taken into account –

and that is to be done by the governor. It is to be done administratively and here the governor got it wrong. How does that bear upon this issue?

MR BATES: Well, your Honour, in my respectful submission, this is an infirm order. I really cannot take it further than that, your Honour. This is an infirm order and we say it does not provide the protection of an ordinary order for the reasons I have already taken your Honour to, which I will not repeat, your Honour.  

Your Honour, I will not sort of read them out, but certainly in Watson v Marshall [1972] HCA 27; (1971) 124 CLR 640, it is emphasised that there has to be a proper authority to detain the respondent. In my respectful submission, in summary in this aspect there was not a judicial order at all, but if it was it was an infirm order and that once it was set aside, it was set aside ab initio and it does not protect the respondent. Your Honours, that really deals with what I will call the appeal and then we move to the notice of contention.

---------

MR BATES: Well, your Honour, we say that our case on malice is that malice now means - more broadly in this case we say it was an attempt to detain him and to use the language of – by an improper purpose in the sense that the proceedings were never capable of achieving the object. We know that because they were constitutionally infirm proceedings. The Executive Government did not have to in fact take the proceedings under the – the Act was passed and provided a facility to take proceedings, but the Executive Government is quite clear it was carrying out a course of conduct right from October 1994 through to February 2000 - 1995.

FRENCH CJ: So, sorry, how does the malice arise?

MR BATES: The malice is that the Executive Government was jointly carrying out a plan to keep Mr Kable in gaol by any means, by an improper means, by any means at all which - - -

FRENCH CJ: Well, they make an application – let us assume we can aggregate everybody into the Executive Government for the moment – so they make an application or an application is made for a detention order pursuant to a law. You say it is not necessary for your cause of action that they knew the law was constitutionally infirm.

MR BATES: No, your Honour.

FRENCH CJ: We, therefore, work on the premise that they are bringing an application for a detention order under a law apparently duly enacted by the Parliament of New South Wales.

MR BATES: It was more than that, your Honour. The Executive Government was carrying out a whole plan to simply keep Mr Kable in gaol at any cost – they made this whole attempt, which they carried out, to set up, to follow a procedure, where they actively kept him in gaol to do whatever was necessary even though these prisoners were incapable of achieving the object.

FRENCH CJ: Is your argument similar in relation to the abuse of process?

MR BATES: The argument is slightly different there, your Honour, because in an abuse of process there is a question objectively whether the proceedings were misused and we say these proceedings were being misused because there was never any way these proceedings could be capable of detaining Mr Kable, objectively. For both causes of action, your Honour, both for malicious prosecution and for - - -

FRENCH CJ: Again, that is only a premise that the Executive, and I use that term broadly, takes an application under a law apparently duly enacted by the Parliament of New South Wales not knowing the law to be constitutionally infirm - that is your premise - and you say that that involves an abuse of the process of the court?

MR BATES: We say it does partly based on what was said in Kable 1996, which was that the Executive was seeking to use the court - - -

FRENCH CJ: Well, that is about characterisation of the legislation, is it not?

MR BATES: Well, yes, your Honour. We say, just on that aspect, that it is not a requirement for either malicious prosecution or for abuse of process; we say it is not a requirement that the actor has a subjective awareness of the objective quality of the conduct. We would say the actor has to have a subjective intention, which is here to keep him in gaol, but we say that the Executive Government does not have to have some subjective awareness of the objective characterisation of the particular conduct.

FRENCH CJ: Is that everything you want to say in relation to the question whether special leave should be granted to allow you to cross-appeal, apart from the merits, just on the question of whether special leave should be granted?

MR BATES: Your Honour, could I just say this aspect? In both torts, false imprisonment and abuse of process, in neither case can the tort when it is carried out be carried out solely by the tortfeasor. In each case the tortfeasor relies to some extent on conduct being taken independently by other actors in the process. For example, in the classic case of malicious prosecution, for example, a person might, for example, make a false complaint to the police. The police then investigate it and it might be heard by a judge.....is obtained. Even though there has been a whole series of other actors who have taken part, that does not constitute a novus actus interveniens.

Similarly, in an abuse of process proceedings are misused, and in the typical case there will be a lot of people involved such as the judge and so forth who will have no idea of what may have been subjectively motivating the tortfeasor, so we say here just by analogy, the fact that in both these cases, the malicious prosecution and in the abuse of process, the fact that the legislation gets enacted, we just say is, if you like, part of the history or part of the mechanism that has been used, but the whole plan is what has been carried out by the Executive Government. That is how we put it, your Honour. That is on the special leave aspect, your Honour.

FRENCH CJ: All right. Thank you. We will adjourn briefly to consider what course we should take.

AT 3.47 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.51 PM:

FRENCH CJ: In the opinion of the Court, the cross-appeal is not attended with sufficient prospects of success to warrant the grant of special leave. Special leave will be refused.

--------------

MR BATES: Thank you. Your Honour, there was one matter which I overlooked in my answers before to Justices Bell and Keane in the false imprisonment. May I have leave just to raise one further matter?

FRENCH CJ: Yes.

MR BATES: If I could take your Honours back to the Law Reform (Vicarious Liability) Act 1983, section 10 which, we say, qualifies section 8:

(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.

So in our respectful position, first of all we say the Parliament is showing here that a defence that a gaoler might have – at least by statute – does not necessarily vest with the principle. We say that by analogy the court would adopt the same approach at common law. Your Honour, that was the only additional point I wished to make.

FRENCH CJ: Thank you, Mr Bates. Yes, Mr Solicitor.

Source: State of NSW v Kable [2013] HCATrans 71 (9 April 2013) 

(Obviously the Judgement was reserved.....)

My response after reading the transcripts as follows:

I fail to see how the State can call it an order based on the unconstitutionality of the CPact.

I fail to see how the State can rely on federal jurisdiction based on them making the alleged order before deciding constitutionality.

I fail to see how the State had lawful justification.

I fail to see how the High Court have not granted us leave for a cross appeal on Malicious Prosecution and Collateral Abuse of Process.

Perhaps to protect the State of NSW? How could the executive government and drafters of the Cpact not know that it was unconstitutional? What happened to our submission in relation to the disentanglements of the real culprits? The executive Liberal government wanted to win a state election based on law and order. To say that the motives of parliament cannot be impugned means the executive is standing behind the protection of the parliament. Not fair! Clearly the malice was using me to win an election and these were motives which I say were malicious.

Therefore I fail to see how the State can deny us on false imprisonment.

Excerpt: Court of Appeal New South Wales
Source: Medium Neutral Citation Kable v State of New South Wales [2012] NSWCA 243

Court of Appeal New South Wales



ALLSOP P: 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."

I'm not certain if they can chop of my head? but in my mind we have defended our case inline with the Court of Appeal Judgement.

Remember that Brennan CJ and Dawson J the only two High Court judges nominated by a Liberal government upheld the 1996 judgement as valid.

Stay tuned.....

At 10.am on 5th June 2013 the High Court of Australia chopped off my head, left me totally bankrupt and failed to explain how I could have been sentenced without due process and falsly imprisoned by the State. I found it difficult to believe that the Court of Appeal was unanimous and upheld the appeal, yet the High Court was unanimous in upholding the appeal by the STATE to overturn that decision.  How could legislation that was invalid at proclamation now be deemed valid until set-aside?  


5 June 2013

THE STATE OF NEW SOUTH WALES v GREGORY WAYNE KABLE


[2013] HCA 26


Today the High Court unanimously allowed an appeal by the State of New South Wales and held that a detention order made by a judge of the Supreme Court of New South Wales under legislation later held to be unconstitutional was a defence to a claim for false imprisonment.  The order was held to be valid until it was set aside.

Mr Gregory Wayne Kable was detained in custody for six months in 1995 pursuant to an order of the Supreme Court made under s 9 of the Community Protection Act 1994 (NSW) ("the Community Protection Act").  Mr Kable unsuccessfully appealed against the detention order to the Court of Appeal.  After Mr Kable was released from detention, he successfully appealed to the High Court.  The High Court ordered that the detention order be set aside on the basis that the Community Protection Act was unconstitutional and was therefore invalid.

Following the decision of the High Court setting aside the detention order, Mr Kable commenced proceedings in the Supreme Court, ultimately claiming damages against the State for abuse of process, false imprisonment and malicious prosecution.  A number of preliminary questions were decided by the primary judge against Mr Kable and judgment was entered for the State.  Mr Kable appealed to the Court of Appeal.  That Court allowed the appeal in part, holding that Mr Kable should have judgment against the State for damages to be assessed on his claim for false imprisonment.

By special leave, the State appealed to the High Court.  The Court unanimously allowed the appeal, and held that the detention order was valid until set aside.  It had therefore provided lawful authority for Mr Kable's detention.  The primary judge's orders dismissing Mr Kable's claims were reinstated. 

This statement is not intended to be a substitute for the reasons of the High Court or to be used in any later consideration of the Court’s reasons.


Excerpts:  
French CJ Hayne J Crennan J Kiefel J Bell J KeaneJ

16) "The incompatibility with institutional integrity which was identified in Kable (No 1) lay in the Supreme Court being required to act as a court in the performance of a function identified as not being a function for the judicial branch of government. The majority in Kable (No 1) described the function which the CP Act required the Supreme Court to undertake in several different ways. 


All of those descriptions emphasised that the function which the CP Act required the Court to fulfil was not judicial. So, for example, Gaudron J said16 that the power given by the CP Act "is not a power that is properly characterised as a judicial function, notwithstanding that it is purportedly conferred on a court and its exercise is conditioned in terms usually associated with the judicial process" and that "except to the extent that the [CP] Act attempts to dress them up as legal proceedings ... they do not in any way partake of the nature of legal proceedings"17. But these and other similar statements made in the reasons of the majority in Kable (No 1) proceeded from the premise that the CP Act required the Supreme Court to act as a court in performing the function prescribed by the CP Act. As Gummow J later said, in Fardon v Attorney-General (Qld)18, the "legislative plan" of the CP Act was "to conscript the Supreme Court of New South Wales to procure the imprisonment of [Mr Kable] by a process which departed in serious respects from the usual judicial process".


It is, therefore, to misstate the effect of the decision in Kable (No 1) to hold, as the Court of Appeal did19, that in exercising power under the CP Act, "the Supreme Court was not exercising judicial power or authority and was not acting, institutionally, as a superior court". The majority in Kable (No 1) held that the CP Act was invalid because it required the Supreme Court to exercise judicial power and act institutionally as a court, but to perform a task that was inconsistent with the maintenance (which Ch III of the Constitution requires) of the Supreme Court's institutional integrity."


Excerpts from Gageler J


53) "One of the ways in which the existence in fact of a purported but invalid law, or the existence in fact of a thing done invalidly in the purported exercise of a power conferred by law, might lead to the taking of action in fact is that the purported law or other thing might be relied on to found an action in a court which results in the making of a judicial order. Where that occurs, the judicial order will have independent legal force as a judicial order. That is illustrated by Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan68, where convictions by a magistrate for offences under regulations were sustained notwithstanding the subsequent disallowance of those regulations with retrospective effect. Having held that "after a regulation has been disallowed, no one is liable to conviction for an offence committed while it was in force" in that "[h]is liability ceases when the law is revoked that imposed it", DixonJ explained69:

"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."


This is interesting about the idea of an alleged 'court'.

10. The Kable Principle invalidates laws that substantially undermine the institutional integrity of a Chapter lll court. The term 'institutional integrity' refers to the defining characteristics of such courts. (Forge v Australian Securities and Investment Commission Gummow, Hayne and Crennan JJ said at; 2

[T]he relevant principal is on which hinges upon maintenance of the defining characteristics of a "court", or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court. It is to those characteristics that the reference to "institutional integrity" alludes. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies.

1 (1996 189 CLR 51,
2 (2006) 228 CLR 45 at 76 [63]

So in their own words the idea that a Court made the decision and therefore valid on its face until set aside doesn't follow with the above idea of a what an alleged court in this case had decided. The alleged court made an administrative, executive decision that sent a person to prison on the balance of probabilities and with the rules of evidence taken away so that any information the government provided to them could be used in evidence, even when it would not be accepted in a court of regular due process which we are all entitled to if an allegation is made or an alleged crime had been said to have been committed. Instead they withdrew police charges and granted bail then sentenced me on the behest of the State for no crime. And now that's my fault and I am liable?


Excerpts:  French CJ Hayne J Crennan J Kiefel J Bell J KeaneJ

41) "Finally, it will be recalled that Mr Kable submitted that the effect of this Court's orders in Kable (No 1) was to render the order of Levine J void ab initio. This Court did not declare the order made by Levine J to be void. As a judicial order of a superior court of record, the order of Levine J was valid until set aside. It was not "void ab initio".

Then how did the Court of Appeal and everyone else get it totally wrong? They just changed the status?

Excerpts from Gageler J


77) "The better view of Kable (No 1) is that there was a single matter before the Supreme Court constituted by the disputed entitlement of the DPP to a preventive detention order under the CP Act. That matter encompassed but was not confined to whether the Supreme Court had jurisdiction and whether the CP Act was invalid as incompatible with Ch III of the Constitution. The matter extended to whether the preventive detention order applied for by the DPP, if it could be made, should be made. The order made by Levine J, upheld in the Court of Appeal, resolved the whole of that matter in the exercise of judicial power within federal jurisdiction. The order was "an adjudication to determine the rights of parties"116.


"The order made by Levine J in the purported exercise of jurisdiction invalidly conferred on the Supreme Court by the CP Act was therefore a judicial order."


However they were not judging lack of jurisdiction, they were judging unconstitutionality. There was no order from proclamation! So where is the lawful authority? Where was due process that wasn't hacked? There was no rights of parties determined, only the rights of the State Executive to determine a single named person should go to Jail and that is what this claim was about. Sending a person to prison for no crime on the balance of probabilities and described by the High Court in Kable 1 as a mockery of justice, repugnant jailing, an antithesis to the rule of law etc. So if the court had decided I be hanged because of the CP Act then that should have been valid until set aside?  Before any alleged order should have been made by Levine J to send a person to prison the appeal ought to have settled the constitutionality and the validity of the CP Act which was contested from day one. Because the constitutionality wasn't tested and liberty was taken away the High Court say that the State had lawful authority.


Excerpts from Gageler J

52) "Yet a purported but invalid law, like a thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact. That is so whether or not it has been judicially determined to be invalid. The thing is, as is sometimes said, a "nullity" in the sense that it lacks the legal force it purports to have. But the thing is not a nullity in the sense that it has no existence at all or that it is incapable of having legal consequences65. The factual existence of the thing might be the foundation of rights or duties that arise by force of another, valid, law. The factual existence of the thing might have led to the taking of some other action in fact. The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the thing itself. For example, money might be paid in the purported discharge of an invalid statutory obligation in circumstances which make that money irrecoverable66, or the exercise of a statutory power might in some circumstances be authorised by statute, even if the repository of the power acted in the mistaken belief that some other, purported but invalid exercise of power is valid67.


53) One of the ways in which the existence in fact of a purported but invalid law, or the existence in fact of a thing done invalidly in the purported exercise of a power conferred by law, might lead to the taking of action in fact is that the purported law or other thing might be relied on to found an action in a court which results in the making of a judicial order. Where that occurs, the judicial order will have independent legal force as a judicial order. That is illustrated by Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan68, where convictions by a magistrate for offences under regulations were sustained notwithstanding the subsequent disallowance of those regulations with retrospective effect."

How can a nullity be a thing? It is null and void! Surely a thing has to have a digit? I mean the difference between nothing and nothing is surely NOTHING that is No Thing! The problem with the Thing is that I don't own it yet my name is on it? Who is responsible for that? NO Thing? Or the State Thing? If the Thing caused another Thing then why wasn't the original Thing responsible for the Thing that caused me to defend myself for 17 years in relation to false imprisonment, assault, copyright infringement (using my name in vain) posted all over the net with a law for one man? Who pays my lawyers and the Damage the Thing has done including medical expenses? According to the High Court of Australia, NO THING IS LIABLE!    

This was an unsuccessful action for damages for false imprisonment. and so our position may be likened to that of a person who has served a sentence of imprisonment but whose conviction was subsequently quashed. The remedy, if there is one (and states make their own – pragmatic – arrangements to deal with these situations), if is not an action for damages in tort for false imprisonment, because they argue that the unconstitutional law and subsequent  order  of  imprisonment was lawful. 

Regardless of the High Courts decision the State of NSW was ultimately responsible for the novel law. However in 17 years of litigation and with many offers made by my legal team to have the matter settled to discontinue the claim, the only offer of settlement for the Miscarriage of Justice that was ever made by the State of NSW for the extraordinary damage that was caused, (which has also led to incredible costs) was that the state would pay its own costs and not pay a penny more for the damages.

I would have thought law firms should have confidence in trying to obtain a damages claim based on known knowledge and defences to damages claims but this was Novel.

Also note that there are endless copyright breaches by the use of the name of Gregory Wayne Kable and the Community Protection Act 1994. Why is the NSW government not responsible for causing damages and the endless subsequent use and copyright infringements by others that flowed on from their unconstitutional law?

I honestly think that liability is a certainty when a person has been damaged provided the source can be committed to trial.

Who would have believed that a person could be run down by a state truck and the injured person asked to pay the costs and damages? 

I knew there was an attitude problem with French. I knew it was odd to offer the state leave based on they pay win or lose the High Court of Australia. It was as if they said well, you pay for it and we will uphold your appeal?

Then when they deliberated on the leave for Malicious Prosecution and Collateral Abuse of Process I knew we were dead in the water.

Obviously if the parliament never allegedly knew the Cpact was unconstitutional then that was false because those who drafted it did know and the executive government were not disentangled from the house. They were cutting off our defence at that stage, then we would have no tort to rely on once they ruled on false imprisonment.

I firmly believed that the HCA seen us coming from along way back and had time to plan a way around it.

In a case like this there ought to be some other appeal process to the Governor General in relation to the states liability.


Some commentators like Law Chat are spreading this nonsense:

"The issue in the High Court 

The CPA Act empowered the Supreme Court to order the preventative detention of Mr Kable if satisfied that otherwise he would probably commit a serious act of violence. The Supreme Court ordered Mr Kable’s detention for six months. After the six months had elapsed, the detention order was set aside on appeal to the HCA and the CP Act was held invalid. The question for the HCA to resolve was: “Did the detention order provide lawful authority for Mr Kable’s detention?” 

The High Court’s decision 

The HCA unanimously answered that question with a “Yes”. The joint reasons for judgment concluded that the detention order provided lawful authority for the State to detain Mr Kable notwithstanding the subsequent setting aside of the order by the HCA on the ground that the CP Act was invalid. Justice Gageler, in a separate judgment, agreed with the conclusion and joined in the proposed orders to set aside the orders of the Court of Appeal.

In Australian law the point at which decisions made in the exercise of judicial power were given effect, despite the particular decision later being set aside or reversed, was marked by treating the orders of a superior court of record as valid until set aside (at [38]). 

In this case, if the detention order made by Levine J was not effective until set aside, those apparently bound by the order were obliged to disobey it, lest they be held responsible for false imprisonment. On Mr Kable’s argument, [?] the order was without legal effect and should not have been obeyed. The decision to disobey the order would have required both the individual gaoler and the Executive Government of New South Wales to predict whether the HCA would accept what were then novel constitutional arguments (at [40])."


Not according to the NSW Court of Appeal see underlined below. Those apparently bound by the order did obey it. as the State was vicariously liable and responsible for unconstitutional law. We did not argue that the order should have not been obeyed! We argued that it was obeyed and that the supervisory role of the court until appeal means the constitutional validity had not been determined by the Highest Court of Australia yet the state acted on it. The individual gaoler  was protected and the Executive Government of New South Wales drafted the flawed legislation because it wanted to win an election. They did not need to predict their own malice nor the drafting of the unconstitutional CPAct described by the High Court as mockery of justice.  

Court of Appeal New South Wales



ALLSOP P: 63 NSW Court of Appeal

"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 courtThe 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."

Some commentators like Law Chat are spreading this nonsense:

"Because Mr Kable was detained pursuant to an order that had not been set aside during the period of detention, and remained valid during that time, it was unnecessary to examine whether the Court of Appeal should have held that the State was directly liable in false imprisonment, in addition to being vicariously liable for that tort."

The case will shortly appear in the commentary of the Australian Torts Reporter at ¶46-620: State of NSW v Kable[2013] HCA 26. 

How could it be unnecessary to examine the decision of the court below? Why did we go there? How come I had to go to the High Court twice for two opposing decisions? The Court of Appeal based their judgement on Kable 1 in 1996. 

Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 (12 September 1996) 

22 The plaintiff relied on the following statements from the High Court decision in  Kable v DPP (NSW) [1996] HCA 24(1996) 189 CLR 51. The formal basis of the holding of invalidity was that the Community Protection Act 1994 (NSW) was incompatible with Chapter III (the Judicature) of the Commonwealth of Australia Constitution per Toohey J at 99.5, Gaudron J at 108.3, McHugh J at 124.3. According to the plaintiff the followig passages of the High Court decision support findings that Act diminished public confidence in and compromised the integrity of judicial proceedings (Toohey J at 98.6; Gauldron J at 107.4; McHugh J at 121.8, 124.4) and that the Supreme Court was required to participate in the making of a preventive order where no breach of the criminal law was alleged (Toohey J at 98.9 and 100.7); Gauldron J at 106.3; McHugh J at 121) and that the proceedings did not have the character of judicial proceedings (Gaudron J at 106.2, 106.9-107.3; McHugh J at 122.2) and were a mockery of judicial proceedings (Gaudron J at 108.2; McHugh J at 122.5) and was an exercise of political executive jurisdiction (McHugh J at 122.6, 124.2) and a denial of equal and impartial justice without the ordinary processes of law (Gaudron J at 107.9, McHugh at 124.4). These statements must be read in context.

Wake up Australia the High Court Reneged! That means they decided the constitution based on unpopularity rather than common law principals.  Make no mistake the Community Protection Act 1994 had nothing to do with my original sentence of manslaughter due to diminished responsibility. It was a totally separate 'Thing' that has damaged my whole family and has destroyed any hope of ensuring that I can assist my children in the future and try to repair a broken family.  

McHugh J identified the Act’s fatal flaws as follows: The Act seeks to ensure, so far as legislation can do it, that the appellant will be imprisoned by the Supreme Court when his sentence for manslaughter expires. It makes the Supreme Court the instrument of a legislative plan, initiated by the executive government, to imprison the appellant by a process that is far removed from the judicial process that is ordinarily invoked when a court is asked to imprison a person.

THE FOLLOWING MATERIAL WAS REMOVED FROM - WIKIPEDIA ON OR AROUND AUGUST 2014

Kable v Director of Public Prosecutions (NSW) - Wikipedia ...

Copyright Infringement

The Community Protection Act 1994 was Novel and difficult to defend. There are endless copyright breaches by the use of the name of (Gregory Wayne Kable) and the (Community Protection Act 1994) all over the Internet which the NSW government according to the High Court of Australia in Kable (No 2) don't have to take responsibility for in terms of the continuing damages caused to Mr Kable. The law was ruled unconstitutional by the High Court of Australia in Kable (No 1) and therefore a nullity, but because the High Court of Australia in Kable (No 2) decided it was constitutional due to the appeal process taken to resolve the matter Mr Kable was ordered to pay costs, a contradiction in terms.

Subsequently I re posted it back to wikipedia so this must embarrass some people?

The following text is what I posted to wikipedia in full on or about 2013, so I re posted the note about copyright infringement again on August 21 2014, in case it is removed again: As follows:

Aftermath Kable 2

The Community Protection Act 1994 (NSW) ("the CP Act") provided for "the preventive detention (by order of the Supreme Court [of New South Wales] made on the application of the Director of Public Prosecutions) of Gregory Wayne Kable". On 23 February 1995, on the application of the Director of Public Prosecutions, Levine J made an order pursuant to s 9 of the CP Act that Mr Kable be detained in custody for a period of six months. Mr Kable appealed against this order to the Court of Appeal but his appeal was dismissed.

By special leave, Mr Kable appealed to the High Court. After the grant of special leave, but before the appeal to this Court was heard, the six month period fixed by the order of Levine J expired and Mr Kable was released from detention. In September 1996, the High Court held that the CP Act was invalid. This Court allowed Mr Kable's appeal, set aside the order which the Court of Appeal had made, and, in its place, ordered that the appeal to that Court be allowed with costs, the order of Levine J be set aside and, in its place, order that the application of the Director of Public Prosecutions be dismissed with costs. It will be convenient to refer to this decision as Kable (No 1).

The NSW Liberal Executive Government of NSW drafted the unconstitutional legislation and had known that it was unconstitutional and many complaints were made by numerous agencies like the Law Society of NSW, The NSW Bar Association, NSW Council for Civil Liberties etc. Then the Law and Justice Foundation provided $5,000 to fund the damages claim on behalf of Mr Kable.

Mr Kable commenced proceedings in the Supreme Court of New South Wales, claiming damages for false imprisonment. Initially the proceedings were brought against the State of New South Wales ("the State"). Later, the Director of Public Prosecutions ("the DPP") was joined as a defendant. Ultimately three causes of action were pleaded: abuse of process, malicious prosecution and false imprisonment. Before the action was tried, the DPP was dismissed from the proceedings by consent.

The primary judge (HoebenJ) determined a number of issues as preliminary questions. Those issues were decided against Mr Kable and judgment entered for the State. In particular, the primary judge rejected Mr Kable's argument that the detention order made by Levine J was a nullity when made and held that the order was valid until it was set aside.

Mr Kable appealed to the Court of Appeal. That Court (Allsop P, Basten, Campbell and Meagher JJA and McClellan CJ at CL) allowed the appeal in part. The Court of Appeal held that the primary judge had been right to dismiss Mr Kable's claims for collateral abuse of process and malicious prosecution but that Mr Kable should have judgment against the State for damages to be assessed on his claim for false imprisonment. All members of the Court of Appeal held that the order of LevineJ was no answer to Mr Kable's claim for false imprisonment.

ALLSOP P: 63 NSW Court of Appeal."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."[4] Kable v State of New South Wales [2012] NSWCA 243.

Application special leave to appeal High Court of Australia

The State of NSW sought special leave to appeal to the High Court against the orders made by the NSW Court of Appeal. The Attorneys-General of the Commonwealth, Queensland, Victoria and Western Australia intervened in support of the State's appeal.

Mr Kable also filed a notice of contention because there were two other causes of action that were dismissed by the court of appeal, one being the action for collateral abuse of process and the other being the action from malicious prosecution.

Then the High Court of Australia suggested it would grant leave to appeal on the basis that the state of NSW pay the costs win or lose of the leave application and the High Court appeal.

FRENCH CJ: There will be a grant of special leave in this matter, subject to the condition that the appellant will pay the respondent’s costs of the appeal and of this special leave application.[5] State of NSW v Kable [2012] HCATrans 356 (14 December 2012).

Special leave (cross-appeal contention issues)

FRENCH CJ: Is it a necessary aspect of the malice which you assert, or what you call the institutional malice, I think – and I am having regard back to your pleadings – that the Executive procured the introduction of the Bill into the Parliament and its subsequent enactment?

MR BATES for Mr Kable: The malice is that the Executive Government was jointly carrying out a plan to keep Mr Kable in gaol by any means, by an improper means.

FRENCH CJ: We, therefore, work on the premise that they are bringing an application for a detention order under a law apparently duly enacted by the Parliament of New South Wales.

MR BATES: It was more than that, your Honour. The Executive Government was carrying out a whole plan to simply keep Mr Kable in gaol at any cost – they made this whole attempt, which they carried out, to set up, to follow a procedure, where they actively kept him in gaol to do whatever was necessary even though these prisoners were incapable of achieving the object.

FRENCH CJ: Is your argument similar in relation to the abuse of process?

MR BATES: The argument is slightly different there, your Honour, because in an abuse of process there is a question objectively whether the proceedings were misused and we say these proceedings were being misused because there was never any way these proceedings could be capable of detaining Mr Kable, objectively. For both causes of action, your Honour.

MR BATES: Your Honour, could I just say this aspect? In both torts, false imprisonment and abuse of process, in neither case can the tort when it is carried out be carried out solely by the tortfeasor. In each case the tortfeasor relies to some extent on conduct being taken independently by other actors in the process. For example, in the classic case of malicious prosecution, for example, a person might, for example, make a false complaint to the police. The police then investigate it and it might be heard by a judge.....is obtained. Even though there has been a whole series of other actors who have taken part, that does not constitute a novus actus interveniens.

Similarly, in an abuse of process proceedings are misused, and in the typical case there will be a lot of people involved such as the judge and so forth who will have no idea of what may have been subjectively motivating the tortfeasor, so we say here just by analogy, the fact that in both these cases, the malicious prosecution and in the abuse of process, the fact that the legislation gets enacted, we just say is, if you like, part of the history or part of the mechanism that has been used, but the whole plan is what has been carried out by the Executive Government. That is how we put it, your Honour. That is on the special leave aspect, your Honour.

FRENCH CJ: All right. Thank you. We will adjourn briefly to consider what course we should take.

AT 3.47 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.51 PM:

FRENCH CJ: In the opinion of the Court, the cross-appeal is not attended with sufficient prospects of success to warrant the grant of special leave. Special leave will be refused. [6] State of NSW v Kable [2013] HCATrans 71 (9 April 2013)

Hearing High Court Kable (No 2)

Then the High Court unanimously upheld the appeal by the State of NSW. The High Court relied on their view that the supreme court is a superior court of record and therefor the legislation was valid until set aside. The High Court said that because the [Community Protection Act 1994] was originally appealed to the court of appeal and judged valid prior being judged invalid, by the High Court in Kable 1, the High Court said that that produced its constitutionality because it was appealed in a federal jurisdiction. Noting that its constitutionality was never judged in the Highest Court prior Kable 1 and therefore never endured the full length of the appeal process in Australia. [7]

Copyright Infringement

The Community Protection Act 1994 was Novel and difficult to defend. There are endless copyright breaches by the use of the name of (Gregory Wayne Kable) and the (Community Protection Act 1994) all over the Internet which the NSW government according to the High Court of Australia in Kable (No 2) don't have to take responsibility for in terms of the continuing damages caused to Mr Kable. The law was ruled unconstitutional by the High Court of Australia in Kable (No 1) and therefore a nullity, but because the High Court of Australia in Kable (No 2) decided it was constitutional due to the appeal process taken to resolve the matter Mr Kable was ordered to pay costs, a contradiction in terms.

Labels: 19962003assaultaustraliachildrencompensationconstitutioncontact-visits,discriminationdppdraconian-lawsfalse-imprisonmentmandatory-sentencingnswprisons-and-punishment, miscarriage of justice, quashed,2012, 2013 


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.

(Please Note:
The rest of Michael Richardson's parliamentary debate is published on the NSW Parliamentary website and not reproduced here for the following reasons...)

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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