This week the High Court will hear argument in the latest instalment of proceedings involving Gregory Wayne Kable.
Kable, it may be recalled, stabbed his wife to death in the house in which she lived with the children of their marriage. The marriage had broken down and there had been considerable acrimony between Kable and his wife concerning custody of, and access to, the children. Before killing his wife, Kable had engaged in violent behaviour towards her and had made threats of violence. He pleaded guilty to the manslaughter of his wife and was sentenced to a term of imprisonment of five years and four months, expiring on 4 January 1995. Whilst in prison, he wrote a series of threatening letters such as to cause serious concern that upon his release there would be a repetition of the same behaviours that had led to the death of his wife.
The NSW Parliament passed the Community Protection Act 1994 which conferred jurisdiction on the NSW Supreme Court to make an order for preventative detention. Although proposed as legislation of general application, the Act as finally passed was limited in its application to Kable. Orders were made by Hunter J and then Levine J with the effect that Kable remained imprisoned until 23 August 1995 (an application on 21 August 1995 for a further order was refused by Grove J).
In September 1995 in Kable v Director of Public Prosecutions (NSW) the High Court ruled that the Community Protection Act 19994 was invalid by reason that the jurisdiction and powers conferred upon the Supreme Court were of such an extreme nature and quality as to be incompatible with the exercise by the Supreme Court of the judicial power of the Commonwealth.
The consequence of all of this was that Kable was imprisoned for a period beyond the term of his imprisonment for the manslaughter of his wife, pursuant to orders made under an invalid Act of the NSW Parliament.
Kable commenced proceedings seeking damages for, inter alia, false imprisonment. Unsuccessful at first instance before Hoeben J, Kable appealed and a specially-convened bench of five in the NSW Court of Appeal (Allsop P, Basten, Campbell, and Meagher JJA, and McLellan CJ at CL) allowed the appeal in respect of the claim for false imprisonment.
At issue before the High Court is whether or not obedience to orders of a State Supreme Court that were valid on their face (but which were subsequently found to be ineffective by virtue of the invalidity of the authorising Act) provides a defence of lawful authority at common law to the claim for false imprisonment.
Purportedly by Notice of Contention (although one would have thought it more properly arises by way of Cross-Appeal) Kable also seeks to challenge the Court of Appeal’s rejection of his claims for malicious prosecution and abuse of process.