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.

Financial Recognition of Local Government: Constitution Alteration (Local Government) 2013 Bill

The Constitution Alteration (Local Government) 2013 Bill was introduced into the House of Representatives on 29 May 2013 and Wednesday (5 June 2013) was passed by the lower house. The Bill proposes to amend the Commonwealth Constitution s96 to make specific provision in relation to the granting of financial aid to local government bodies of which there are currently 565 many of whom struggle finically while trying to meet a growing list of funding demands .

Background

The Attorney-General in speaking to the Bill said that in August 2011 the federal government had appointed an Expert Panel on Constitutional Recognition of Local Government chaired by former Chief Justice of the Supreme Court of NSW, the Hon James Spigelman AC QC (the Expert Panel) to identify options for the constitutional recognition of local government.

In December 2011 a majority of the Expert Panel members concluded that financial recognition of local government by amendment of the Commonwealth Constitution s 96 was a viable option within the 2013 election timeframe and led to the Commonwealth Parliament establishing a Joint Select Committee on Constitutional Recognition of Local Government to inquire into and report on the majority finding of the Expert Panel in November 2012. It subsequently supported the findings of the Expert Panel that a referendum on financial recognition of local government be held at the 2013 federal election.