High Court finds orders in excess of jurisdiction are valid until set aside

State of NSW v Kable [2013] HCA 26 (5 June 2013)


The High Court has found that the State had detained Mr Kable with lawful authority, notwithstanding that the source of that lawful authority was subsequently struck down on constitutional grounds. As a result Mr Kable had no remedy in tort for unlawful detention, despite his detention subsequently being held to be unlawful.


This case concerns the appeal of a decision of the Court of Appeal of New South Wales, in which the respondent, Mr Gregory Wayne Kable, successfully obtained damages against the appellant, the State of New South Wales, and the interveners, for false imprisonment: see Kable v New South Wales (2012) 293 ALR 719.

This litigation arises out of the earlier decision of the High Court in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (Kable No 1). Upon application by the Director of Public Prosecutions (DPP), Justice Levine made an order pursuant to section 9 of the Community Protection Act 1994 (NSW) that the respondent be detained in custody for six months. The Act allowed for such orders to be made by the court in circumstances where a person is more likely than not to commit a serious act of violence and it is appropriate, for the protection of a particular person or persons or the community generally, that the person be held in custody. The Court of Appeal dismissed the respondent’s appeal of the order authorising his detention: see Kable v Director of Public Prosecutions (1995) 36 NSWLR 374 (Kable No 1). Mr Kable appealed to the High Court. The High Court allowed the appeal and ordered that the application by the DPP be dismissed.

This decision had important constitutional ramifications. The majority of the High Court found that the Act was constitutionally invalid because it required the Supreme Court to exercise judicial power in its capacity as a court, but to perform a task that was executive in nature, which was inconsistent with its constitutional integrity.

Before the matter reached the High Court, the six months’ detention period expired and the respondent was released; this meant the order was not set aside until after the full period of detention had occurred. The respondent brought proceedings seeking damages for collateral abuse of process, malicious prosecution and false imprisonment. The primary question before the court was whether the appellant had authority to hold the respondent in detention at the time of detention, given that the Act was subsequently found to be invalid.

The primary judge dismissed the grounds relating to collateral abuse of process and malicious prosecution. Further, the primary judge rejected the argument that the order was a nullity and held that the order made by Justice Levine was valid until it was set aside: see Kable v New South Wales (2010) 203 A Crim R 66.

The New South Wales Court of Appeal agreed with the primary judge on the grounds of collateral abuse of process and malicious prosecution. However, the Court of Appeal allowed the appeal in part, finding that the existence of the order of Justice Levine could not defeat the respondent’s claim for false imprisonment. President Allsop, with whom Justices Campbell and Meagher and Chief Justice at Common Law McClellan agreed, found that the order was not judicial in character because the court was acting, effectively, in an executive function, and so the order “had no force or effect because, as an executive act, it took its force only from the statute which is and was always unconstitutional and of no effect.” In a separate opinion, Justice Basten found that the order did not constitute a judicial order, that the detention order was made in the exercise of federal jurisdiction to uphold an invalid State law, and was therefore an “invalid non-judicial order.”

Arguments on appeal

The State appealed, supported by the interveners (Attorneys-General of the Commonwealth, Queensland, Victoria and Western Australia). Those parties argued that the Supreme Court was a superior court of record and the order was effective until it was set aside, meaning that the order provided lawful authority for the respondent’s detention.

In opposition, the respondent submitted that if the Supreme Court had not made a judicial order, the rule giving effect to the order until it was set aside was not engaged. The order was “void ab initio” or “annulled ab initio” and either way, the order did not provide authority for the respondent’s detention.


A majority of the High Court (Chief Justice French, Justices Hayne, Crennan, Kiefel, Bell and Keane) allowed the appeal. Justice Gageler, in a separate opinion, agreed with the conclusions and orders of the majority, with similar reasoning. 

The Findings in Kable No 1

The High Court was of the view that the Court of Appeal misconstrued the decision in Kable No 1. The High Court clarified that the majority in Kable No 1 held the Act invalid on the basis that:

[It] required the Supreme Court to exercise judicial power and act institutionally as a court, but to perform a task that was inconsistent with the maintenance (which Ch III of the Constitution requires) of the Supreme Court's institutional integrity.

The High Court highlighted that in Kable No 1 there was no doubt that the Supreme Court was exercising federal jurisdiction (to the extent that those proceedings arose under and involved the interpretation of the Constitution), and the Court of Appeal was exercising the Court’s appellate jurisdiction. The majority also observed that the High Court in Kable No 1 set aside the order of Justice Levine, as distinct from quashing or declaring the order invalid.

Void or voidable?

The majority, noting the difficulties with this terminology, found that to the extent which the orders of a superior court are valid until set aside, there is little point in attempting to classify those orders as “void” or “voidable”.

Nature of the order

The High Court found that the order made by Justice Levine was the result of a determination of the rights of the respondent, and both authorised and required a fixed term of detention. The factors leading to its characterisation as a judicial order included the inter partes hearing; the application of the rules of evidence (with some exceptions), the examination of witnesses and the making of submissions, and the enforcement and appeal of the court order made. The majority emphasised that the exercise of the judicial power refers to the “final quelling of controversies according to law” whereas the exercise of executive power involves decisions “subject to law.” The order was not a “step in the administrative process”, rather, it was a judicial order.

The effect of the order

The majority found that the following propositions do not pose any “logical conundrum”:

  • all courts in Australia have the authority to decide their own jurisdiction, but not the finality of their decisions, which are subject to review; and
  • orders made by a superior court of record are valid until set aside, even if those orders are made in excess of jurisdiction.

The problem with the appellant’s submission is that orders and decisions of the courts could not have “immediate effect” – placing the Executive in the unsatisfactory position of either disobeying the order of the court, or incurring tortious liability in relation to the person whose rights and liabilities were affected by the order. Justice Levine’s order therefore allowed, until it was set aside, for the legitimate detention of the respondent.

Justice Gageler elaborated on the majority’s reasoning, opining that the capacity of a superior court to determine its own jurisdiction is consistent with having the power to determine the validity of a statute that purports to confer jurisdiction on that court, because the making of a final judicial order ordinarily requires the resolution of the question of jurisdiction as between the parties.


The appeal was allowed, and the orders of the Court of Appeal were set aside and substituted with orders that the appeal to that court be dismissed with costs. The appellant was ordered to pay the respondent’s costs of both the application for special leave and the appeal to the High Court. 


The High Court’s decision confirms that the orders of superior courts are valid and lawful until they are set aside. Consequently people who have been detained under superior court orders which are later found to be unlawful do not necessarily have a remedy in tort.

The decision is available here: http://www.austlii.edu.au/au/cases/cth/HCA/2013/26.html

Roxanne Moore is a Fulbright Scholar and a lawyer at Arnold Bloch Leibler.