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Monday, June 10, 2013

Modern Man Discovers Financial Gravity

When Sir Isaac Newton sat under his favourite apple tree, or so the conventional story goes, he dozed off only to be rudely woken by a maturing apple clonking down on his head. it is the sharp resulting pain that it is said led to his sudden realisation, simple though it may sound, that "what goes up must inevitably come down", from which the great man went on to contemplate that a force "magnetic like" was in the earth which attracted everything to it including man. Inevitably this force had the power to attract everything leaving the planet's surface back to it - the force we now call gravity.

This got me thinking that in recent times there have been some gravity defying events, for example, the  GFC which saw most of the world economies fall but in defiance saw most of the worlds wealthy escape unscathed, unlike the less wealthy who become even less wealthy, loosing jobs, getting less interest from banks. When it comes to the rich I think gravity is defied, wealth heads in an upward direction building on its self and seldom comes down as the rich are favoured by governments, banks and most institutions in society. Government of the conservative type has even been said to say that "we should favour the rich as wealth will trickle down"! Indeed and if one considers it right that some should drink from the glass while others, the majority, are forced to wait for a trickle then that theory works.

So if a modern equivalent of Newton sat under a fruiting money tree in a modern free market plutocracy such as exist in the modern world today the modern Newton story might look like this:

                             

Sunday, June 9, 2013

NSW v Kable: Detention and False Imprisonment

In the recent decision NSW v Kable [2013] HCA 26 (delivered on 5 June 2013) the High Court of Australia has ruled on the validity of claim for damages grounded in abuse of process, false imprisonment and malicious process against the State of NSW.

In the case the High Court ruled unanimously to allow an appeal by NSW holding that a detention order made by a Supreme Court judge of that State under legislation subsequently held to be unconstitutional was a defence to a claim for "false imprisonment".The order it was found by the High Court valid until it was later set aside on appeal.


Background


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

As a result of the Court of Appeal decision Mr Kable commenced proceedings in the Supreme Court, claiming damages against the State of NSW for abuse of process, false imprisonment and malicious prosecution. In those proceedings the Supreme Court allowed the appeal in part, holding that Mr Kable should have judgment against the State of NSW for damages assessed on his claim for false imprisonment.


Result


By way of a special leave appeal the State of NSW appealed to the High Court of Australia which unanimously allowed the appeal concluding that the detention order under which Mr Kable was detained was valid until it wad set aside. As such it provided lawful authority for Mr Kable's detention. The original orders dismissing Mr Kable's claims were reinstated.