Kable revisited – the effect of supreme court decisions to detain (and the like) which are later set aside

Subject:  What is the effect of a decision of a superior court which is subsequently set aside?

Case: State of NSW v Kable [2013] HCA 26


Background:  In 1996 the HC found that a NSW Act enabling detention of Mr Kable was invalid.  (Kable (no 1)) As a result, the detention order made by a judge was set aside.  This case is generally cited as a constitutional law case.  

Mr Kable claimed damages for false imprisonment.  He did not succeed.  

Held: The HC found that the detention order provided lawful authority for his detention (at [11]).


Maj: "A State Act empowered the State's Supreme Court to order the preventive detention of Gregory Wayne 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 this Court and the State Act held invalid.  Did the detention order provide lawful authority for Mr Kable's detention?"

The void/voidable distinction and its difficulties is discussed in [20] – [23].

The detention order was a "judicial order" "made by a judge of the Supreme Court in his judicial capacity" [28].

In Australia, we treat "the orders of a superior court of record as valid until set aside" [38].

Accordingly there was no room for a claim of false imprisonment, as Mr Kable was detained by a Supreme Court order which was on foot during the whole of his detention, and "remained valid during that time" [43].

Note: The HC commented that the NSW Court of Appeal did not understand Kable (No 1) [17].  This shows how complex this area is, and how difficult it is to explain it.

Note: It is important to distinguish between superior court decisions which are set aside, and those of inferior courts and tribunals.  The latter could give rise to civil claims like false imprisonment, or trespass, if they are found to be unlawful.