Kable No. 2: Orders of a Superior Court 1, False Imprisonment 0

27 Pages Posted: 16 Jan 2014

Date Written: December 14, 2013

Abstract

The proceedings brought by Mr. Kable in respect of his imprisonment in 1995 under a statute determined in 1996 to be constitutionally invalid recently concluded in the High Court, where his claim in false imprisonment was dismissed 7-0. The Court of Appeal below had found in his favour 5-0. The driving factor in the High Court’s reasoning was that the orders for imprisonment by Levine J in the NSW Supreme Court had been orders of a superior court, and such orders may only be unravelled on a basis of voidability, not nullity. That is to say, they may be treated as non-operative from the time of the decision of underlying lack of legal power, but actions taken under such orders remain of legal force until the moment of invalidation of the jurisdictional power in the court. Thus the imprisonment for six months prior to the decision of the High Court in 1996 remained legally valid, so that there was legal justification that defeated the claim for false imprisonment.

This article queries the reasoning of the judgments that found orders made on the basis of an unconstitutional grant of jurisdiction still to be orders of a superior court that remained of full force. The heart of this analysis involves the comparison of orders of English superior courts, originally creatures of the prerogative holding generally unlimited jurisdictions and devoid of written constitutional inhibition, with the orders of Australian and US superior courts, set up under statutes and functioning in a written constitutional environment. Reliance in this area by Australian courts on English precedents is imperiled by the fundamentally different foundations of the two countries’ superior court systems.

Keywords: false imprisonment , jurisdictional power, superior court

Suggested Citation

Churches, Steven, Kable No. 2: Orders of a Superior Court 1, False Imprisonment 0 (December 14, 2013). University of New South Wales Law Journal, Vol. 36, No. 3, p. 894, 2013, Available at SSRN: https://ssrn.com/abstract=2379236

Steven Churches (Contact Author)

Independent ( email )

No Address Available

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