NSW v Kable [2013] HCA 26: False Imprisonment and Unlawful Detainment

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 in the case of NSW v Kable [2013] HCA 26.

Mr 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).  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 Act was unconstitutional and was therefore invalid.

Mr Kable commenced proceedings in the Supreme Court, ultimately claiming damages against the State for abuse of process, false imprisonment and malicious prosecution. 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.

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