Kable v State of New South Wales [2012] NSWCA 243

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kable v State of New South Wales [2012] NSWCA 243 Hearing dates: 27, 28 October, 29 November 2011 Decision date: 08 August 2012 Before: Allsop P at [1]; Basten JA at [67]; Campbell JA at [173]; Meagher JA at [174]; McClellan CJ at CL at [175] Decision: (1) Allow the appeal in part. (2) Set aside the orders in the Common Law Division dismissing the proceedings against the first defendant (the State) and ordering the plaintiff to pay the defendant's costs of the proceedings. (3) In lieu of the judgment and orders below: (a) give judgment for the plaintiff on his claim against the first defendant (the State) for unlawful imprisonment; (b) order the first defendant to pay the plaintiff's costs of the proceedings to date in the Common Law Division. (4) Remit the matter to the Common Law Division for assessment of damages. (5) Order that the respondent pay the appellant's costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ADMINISTRATIVE LAW - judicial power - executing invalid order of superior court - whether order of superior court incompatible with exercise of judicial power is valid until set aside - whether non-judicial order derives whatever authority it has solely from the relevant legislation - effects of orders in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51