A principle at common law protecting anyone who relies on the order of the Supreme Court here?
22The second basis upon which the State relies to defeat Mr Kable's claim for false imprisonment is the existence, it was submitted, of a common law principle that, whether or not the order was of a superior court, persons who obey court orders are protected from suit. The breadth of the proposition makes one immediately pause for thought, in particular in the light of what was said by Simpson ACJ in Feather v Rogers (1909) 9 SR (NSW) 192 at 197:
"It is no doubt very hard upon police officers who are bound to execute the warrants of Justices, that they should be made liable for so doing on the ground that the Justice issuing the warrant exceeded his jurisdiction. It is very hard on laymen that they should have to take the risk of the warrant being irregular. It is more important, however, that the law should be upheld, notwithstanding the liability of constables and other persons.
It was because of this hardship that the Act 24 Geo. II. c. 44, s. 6, was passed".
23The statute mentioned by Simpson ACJ was the Constables Protection Act 1750 (the "1750 Act") which by s 6 gave protection to "any constable, headborough or other officer, or ... any person or persons acting by his order and in his aid, for any thing done in obedience to any warrant under the hand or seal of any justice of the peace". The statute was repealed in New South Wales by the Imperial Acts Application Act 1969 (NSW).
24Before examining whether this rule exists, and, if it does, its reach and underpinnings, it is necessary to dispose of a related, but clearly distinct principle, which is not determinative of the present position. Whilst no one can be liable under an unconstitutional or repealed statute, if a person be convicted before unconstitutionality is recognised or before repeal occurs, liability merges in and depends on the conviction and not the statute, and does not lapse. The operation of the conviction does not depend upon the law creating the offence, but upon the judgment or sentence of the competent (not necessarily superior) court: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; 46 CLR 73 at 106; R v Unger [1977] 2 NSWLR 990 at 995. The legal theory and policy underpinning this approach was lucidly explained by Street CJ in Unger at 995-996-stability in the operation of the legal system, but in a manner that facilitates the incremental moulding of the law in the light of changing social context; finality and stability in past decisions permitting flexibility in the development of legal principle. We are not dealing here, however, with conviction according to "the authority belonging to a judgment or sentence of a competent court" (Dignan at 106) here. Rather, we are dealing with the non-judicial incarceration of a person, without valid statutory foundation, "dressed up" as legal proceedings, in a process repugnant and antithetical to legal proceedings and to the exercise of judicial power.
25The posited common law principle, having its source in Dr Drury's Case (1610) 8 Co Rep 141b at 143a; 77 ER 688 at 691, is that if acts are done in accordance with a judicial order, later set aside, they are protected as "acts done in the execution of justice, which are compulsive". This passage was cited in Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; 53 CLR 220 at 225, where Rich, Dixon, Evatt and McTiernan JJ said:
"Acts done according to the exigency of a judicial order afterwards reversed are protected: they are 'acts done in the execution of justice, which are compulsive' (Dr. Drury's Case). And proceedings which, although based upon a judgment, are brought to completion before its reversal are not avoided. For 'collateral acts executory are barred, but not collateral acts executed' (Dr. Drury's Case)." (citations omitted)
26In MacIntosh v Lobel (1993) 30 NSWLR 441, Kirby P said at 459-60:
"It is a well-known principle of the common law that a judgment reversed is the same as no judgment: see, eg, Coleridge J in R v Drury (1849) 3 Car & K 190 at 199; 175 ER 516 at 520. Equally, acts done according to the exigency of a judicial order, afterwards reversed, are protected. They are 'acts done in the execution of justice, which are compulsive': see Commissioner for Railways (New South Wales) v Cavanough (1935) 53 CLR 220 at 225. At least in respect of the orders of a superior court, proceedings which are based upon a judgment, later reversed, and which are brought to completion before its reversal are not thereby avoided: see Re Goldburg (No 2); Ex parte Page [1912] 1 KB 606 at 610."
27The above expressions of principle can be seen to be rooted in the order and underlying process being judicial.
28In London Corporation v Cox (1867) LR 2 HL 239 at 269, Willes J said the following on the position of the garnishee, who pays under compulsion of the attachment issued without jurisdiction, at the suit of his own creditor:
"In such a case, although the proceeding in the Mayor's Court was wrong, yet the garnishee, not being party or privy to the wrong, and paying honestly in obedience to process of law apparently valid, has the same protection as an officer who executes process apparently regular, without knowing of the want of jurisdiction; and who, not being in a condition to resist, is protected, not because the proceeding was well founded, but notwithstanding it was ill founded: Westoby v. Day; Wood v. Dunn. This very distinction between the Plaintiff in the inferior Court and the garnishee, 'who is a third party, and no way privy,' was pointed out in the case relied upon by Mr. Pollock: Banks v. Self." (citations omitted)
29Whilst Willes J referred to the apparent validity of the process, it was nevertheless the "process of law" that was being referred to. The invalid orders were garnishee orders, invalid exercises of power judicial in character or sufficiently close and connected to be described as processes of the law.
30Posner v Collector for Inter-State Destitute Persons (Victoria) [1946] HCA 50; 74 CLR 461 concerned an invalid order for maintenance. The facts were summarised by Latham CJ at 465-6 as follows:
"On 16th January 1946 Mordka Hirsch Posner was served in Victoria with a certificate of a maintenance order which had been made against him in Perth, Western Australia, on 24th October 1941. On the same day a demand was made upon him by the Collector for Inter-State Destitute Persons for payment of £438 arrears due under the order. On 18th January 1946 a summons (in the form prescribed by regulations made under the Maintenance Acts 1928-1938 (Vict.)) was issued calling upon him to show cause why he should not be imprisoned for failure to pay moneys in accordance with the order. Upon the hearing of the summons Posner satisfied the Court of Petty Sessions, Melbourne, that he had not been served with any process relating to the proceedings in Western Australia and that he had become aware only on 16th January 1946 of the order which had been made in Perth in 1941. The court was of opinion that the order was a nullity, but that under the Victorian Act it was bound to give effect to it, and it accordingly ordered that in default of payment of £440 arrears of maintenance the defendant Posner should be imprisoned for six months, the money to be paid in instalments of £150 forthwith and £2 5s. per week. The defendant took proceedings by way of order to review. Gavan Duffy J. held that the Western-Australian order was a nullity but that nevertheless it was enforceable in Victoria by reason of the provisions of the Maintenance Acts. Posner now appeals to this Court from the order of the Supreme Court discharging the order nisi to review and affirming the decision of the magistrate."
31Starke J said at 476:
"A party, however, executing the process of an inferior court in a matter beyond its jurisdiction is liable to action and cannot justify under such process whether he knows the defect or not but the magistrate is only liable if he knew of the defect of jurisdiction (Calder v. Halket [(1840) 3 Moo PC 28 at 78; 13 ER 12 at 36]; Houlden v. Smith [(1850) 14 QB 841; 117 ER 323]; Mayor etc. of London v. Cox [(1867) LR 2 HL 239 at 263]). And an officer executing and obeying such process is protected (ibid)."
32The references by Starke J are consistent with the principle, enunciated as to officers, being referable to the exercise of judicial acts.
33Further, in Posner, Dixon J said at 481-2:
"Another rule was expressed by Denman C.J. in Andrews v. Marris [(1841) 1 QB 3 at 16; 113 ER 1030 at 1036]. Speaking of one of the defendants, his Lordship said:-'He is the ministerial officer of the commissioners, bound to execute their warrants, and having no means whatever of ascertaining whether they issue upon valid judgments or are otherwise sustainable or not. There would therefore be something very unreasonable in the law if it placed him in the position of being punishable by the Court for disobedience, and at the same time suable by the party for obedience to the warrant. The law, however, is not so. His situation is exactly analogous to that of the sheriff in respect of process from a Superior Court; and it is the well known distinction between the cases of the party and of the sheriff or his officer, that the former, to justify his taking body or goods under process, must show the judgment in pleading, as well as the writ; but for the latter it is enough to show the writ only; Cotes v. Michill [(1682) 3 Lev. 20; 83 ER 555]; Moravia v. Sloper [(1737) Willes 30 at 34; 125 ER 1039 at 1041]. It was said, indeed, for the plaintiff, that these and the numerous other authorities which might be cited to the same effect all went upon the principle that the proceeding, however irregular, was the Act of the Court.' Thus a conviction or order might be inefficacious in favour of a party but might have some operation as against the other party in favour of officers etc."
34The principle expressed by Denman CJ, and applied by Dixon J, was directed to an act of the court, that is the judicial act or proceeding, being the order of the court which the officer was bound to execute.
35In such cases, the courts are protecting third parties such as court officers or garnishees from the consequences of an invalid order (not being limited to an order of a superior court). Implicit and explicit in them is the protection of the authority of judicial proceedings. Further, there is every reason to consider that an officer of a court should be protected by his actions in obedience to an order of the court of which he is either part or an officer. Orders directed to police or gaolers in the form of a court order, not issued in the course of judicial process, but having the true legal character of an executive warrant, which is wholly lacking authority, do not stand as necessarily bringing the same protection to those who obey them as might be thought appropriate to officers of the court itself, even in such circumstances. It is unnecessary to explore this possible distinction. An invalid warrant gives a policeman no protection from the consequences of invasion of common law rights of person or property; it is statute that protects him: Feather v Rogers and Carroll v Mijovich (1991) 25 NSWLR 441 at 446-447 and 457.
36In Hadkinson v Hadkinson [1952] P 285 at 288, Romer LJ (with whose judgment Somervell LJ agreed) said in the context of the disobedience of the appellant to an order of the divorce court about not removing the child of the marriage from the jurisdiction:
"It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. 'A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it. ... It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void-whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.' (Per Lord Cottenham L.C. in Chuck v. Cremer.)" (citations omitted)
37It is unnecessary to explore the validity, for all purposes, of this expression of the matter, in particular in respect of orders of inferior courts that lack jurisdiction or authority. The validity of his Lordship's expression of the matter as to orders of superior courts of record may be readily accepted. The report does not make clear whether the original order was of a superior court. Of course, it would have been had it been made by the then Probate, Divorce and Admiralty Division of the High Court of Justice. There is, however, implicit in the expression of the matter by Romer LJ, the judicial character of the order. The kind of constitutional circumstances and considerations relevant here are unlikely to arise in England and certainly were not present in the case before the Court of Appeal in Hadkinson.
38In Sirros v Moore [1975] QB 118 police officers obeyed an oral order of a Crown Court judge and took into custody an alien after he had left court on the dismissal of his appeal from an order of a magistrate recommending deportation. The alien sued the judge and the police officers. The judge was held to have immunity. The police carrying out orders directed to them by the judge were likewise protected. Lord Denning at 137 relied on London Corporation v Cox. No reasons were given other than reference to Cox. The Constables Protection Act 1750 was also available. Buckley LJ at 144 found the actions of following the instructions of the judge justifiable without expressing any reasons. The position of the police in Sirros can be equated with that of officers of the court. They were acting under the immediate orders of a judicial officer after the exercise of judicial process.
39The passage of Romer LJ in Hadkinson was cited with approval by Lord Diplock in Isaacs v Robertson [1985] AC 97 at 101-2, but in a context where the Privy Council was dealing with the orders of a superior court, a court of "unlimited jurisdiction" (at 101). It was also cited with approval by Simon Brown LJ (with whom Scott Baker and Latham JJ agreed) in R v Oldham Justices; Ex parte Cawley [1997] QB 1 at 15-16.
40The Full Court of the Western Australian Supreme Court, in Robertson (1997) 92 A Crim R 115, in reasons delivered in substance by Steytler J (with which Malcolm CJ and Franklyn J agreed) dealt with an appeal against the dismissal of a claim for false imprisonment against the State of Western Australia by a person who had been sentenced to fines and costs for certain offences and, in lieu of payment, imprisonment. In court, the magistrate pronounced that the two periods of imprisonment of 40 and 43 days were "to be cumulative". The person had also been sentenced to four years gaol for other offences. The person's solicitor advised him that he need not pay the fines since his prison terms for non-payment, though cumulative as between themselves, would be concurrent with the four year sentence. This was in fact the true intention of the sentence, as found by the trial judge, a proposition not contested on appeal. After a successful appeal against the severity of the four year sentence, the person was kept in custody for a period of days relative to the sentences in default of payment of the fines, and cumulative upon the non-parole period set by the appeal court in respect of the more serious matter. Each of the warrants that had been signed by the sentencing magistrate stated that the periods of detention in default of payment were cumulative, not only upon each other, but also "on any other sentence or sentences which the offender may be undergoing". This went beyond the sentence imposed (as found by the trial judge). Obviously, no error appeared on the face of the warrant to alert the gaoler to the error that had been made by the magistrate. At 122-125 Steytler J reviewed the authorities in connection with a person in the position of a gaoler following the direction contained in a warrant apparently valid on its face. He said:
"It would be an odd result, in a case in which a prison officer was simply enforcing a magistrate's order, if he or she were to be held liable because of the invalidity of the order when the person issuing the order was not so liable, at least in circumstances in which the order was valid on its face.
The courts have generally set their face against this kind of result.
...
[I]t seems to me to be difficult to deny the proposition, when regard is had for existing authority and for legislation in this State, that a prison superintendent may not be held liable for acting on a warrant which is, on the face of it, valid but which later turns out to have been wrongly issued for reasons which had not been known to that superintendent.
...
There is, in this State, no legislative provision which denies the application of the principle to prison superintendents. Indeed, those provisions of the Justices Act to which we were referred in the course of argument tend to support the efficacy of a warrant until set aside by a court of competent jurisdiction. Thus, s 23 of that Act provides that every act done or purporting to have been done by or before a Justice shall be taken to have been done within his jurisdiction without an allegation to that effect unless and until the contrary is shown. (See also ss 22, 36 and 37 of that Act.)
In the circumstances of this case, and in the light of the authorities to which I have referred, it seems to me that, if it be accepted that the warrant was unlawful and subject to being set aside, that did not render unlawful the conduct of the prison superintendent in acting upon the warrant. Rather, the warrant, being ex facie an order of a court of competent jurisdiction, was required to be obeyed by the prison authorities until discharged by a court of competent jurisdiction.
That being so there is no basis for any finding of liability on the part of the Superintendent of the prison in which the appellant was incarcerated."
41Steytler J then distinguished Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 as a case concerning the wrongful calculation of remission entitlements.
42The principle that appears to be enunciated in Robertson can be taken as the following: that a prison officer enforcing a judicial order, valid on its face, but in fact legally invalid, of a judicial officer of a court of competent jurisdiction, acts lawfully in, and is not liable in tort for, complying with it. Implicit in the reasoning of Steytler J and in all the cases referred to by him is that the character of the order of the court is judicial. The Court in Robertson was not dealing with the issue of an executive warrant. True it is that the character of the order here as non-judicial was not apparent on the face of the order, which appeared to be judicial since it was made by the Court. That is no basis, however, for extending the principle enunciated by the Full Court of the Western Australian Supreme Court to an order, in form made by a court, which is in its true character a wholly invalid exercise of non judicial power of the kind described by the High Court in Kable. It was not argued that Robertson was plainly wrong. It can be accepted as dealing with judicial orders made by courts of competent jurisdiction. There is no call from its own terms to extend it to an "order" of the kind and character here. Thus the principle as above enunciated is to be understood as applicable to a judicial order in the sense discussed in Love.
43Professors Aronson and Whitmore in Public Torts and Contracts (Law Book Company, 1982) doubt the correctness of Sirros v Moore, and doubt the existence of any generalised common law protective principle. Those learned authors, however, at page 152 recognise that there are cases that support the view that the common law's protection of a court officer acting on an apparently valid order or warrant was substantive and not just evidentiary: Higginson v Martin (1677) 2 Mod 195; 86 ER 1021; Olliet v Bessey (1679) Jones T 214; 84 ER 1223; Hill v Bateman (1726) 2 Strange 710; 93 ER 800; Moravia v Sloper (1737) Willes 30; 125 ER 1039; Morse v James (1738) Willes 122; 125 ER 1089; Painter v Liverpool Oil Gas Light Co (1836) 3 Ad & E 433;111 ER 478; Carratt v Morley (1841) 1 QB 18; 113 ER 1036; Thomas v Hudson (1847) 16 M & W 885; 153 ER 1450; Andrews v Marris (1841) 1 QB 3; 113 ER 1030; Demer v Cook (1903) 88 LT 629; Ward v Murphy (1937) 38 SR (NSW) 85 and Gerard v Hope [1965] Tas SR 15. To these cases can be added Henderson v Preston (1888) 21 QBD 362 (Court of Appeal consisting of Lord Esher MR, Lindley and Bowen LJJ) following Olliet v Bessey; and there can also be added the cases referred to by Willes J in Moravia v Sloper at 34-35; 1041-1042.
44All of these cases concerned the order or warrant issued by a court, implicitly being a judicial act in the course of, or after, judicial proceedings which the officer in his duties was bound to obey: see especially Willes J in Moravia v Sloper at 34-35; 1041-1042. In Painter v Liverpool Gas Co, Lord Denman CJ stated that officers were justified in executing a warrant because they were obliged not to canvass its validity and that Acts of Parliament had been passed for their protection. In Gerard v Hope, Crisp J perceived a restriction on the defence of a constable following an order of an inferior court to orders which the judicial officer had jurisdiction to make. In this respect, Crisp J referred to Morrell v Martin (1841) SC 4 Scott NR 300 at 306; also reported in 3 Man & G 581; 133 ER 1273, Andrew v Marris, Carratt v Morley and Burn's Justice of the Peace, 30th ed (1869), vol 1 at 1021. Certainly the judgment of Tindal CJ in Morrell v Martin supports that limitation. Tindal CJ (at 3 Man & G at 593-597; 133 ER at 1278-1279) said that the action of the justices of the peace in issuing the warrant outside their jurisdiction, as opposed to merely irregularly, was fatal to a plea of justification by the person to whom the warrant was directed. Tindal CJ identified the terms of the statute (the 1750 Act) as indicative of a matter to be dealt with by the Parliament and not (as Steytler J reasoned in Robertson at 125) indicative of the conformance of the common law to the statute.
45In Olliet v Bessey the Court of King's Bench did not appear so to limit the matter by reference to jurisdiction. Lord Esher in Henderson v Preston relied on Olliet and said at 366:
"In the case of Olliet v. Bessey decided about 200 years ago, it was so held, and from that day to this no action can be found in the books to have been maintained against a gaoler where he acted within the terms of the warrant. That is sufficient to determine this case. Whether the plaintiff had any and, if so, what remedy, is a matter we need not inquire into: in any case this action will not lie. The appeal must, therefore, be dismissed." (citations omitted)
46Lindley LJ at 366 referred to the fact that the person who issued the warrant had jurisdiction to do so in saying:
"All that one has to do is to read the warrant. What is a governor of a gaol who receives such a warrant to do except to obey it? It is perfectly valid and correct, and is authorized by the Act of Parliament, and issued by persons who have jurisdiction to issue it. It appears to me that the governor obeying that warrant has simply done his duty, and the warrant protects him and is an answer to the action."
47In Demer v Cook Lord Alverstone CJ in the King's Bench Division found a gaoler liable for acting under an invalid warrant, but not the issuing court officer whose acts were only ministerial following the orders of the judicial officer.
48The existence of any such common law principle and its boundaries need not be finally decided upon to resolve this case. A number of matters are less than clear, including the place or influence of the 1750 Act as a suppressed premise, the influence of courts protecting their own processes and the extent to which this general rule applies to inferior courts acting without jurisdiction, and the meaning of jurisdiction in this context. For the purposes of the resolution of this appeal, I propose to proceed upon the assumption that the common law provides that, as a general rule, an officer (such as a sheriff or gaoler) obeying a judicial order of a competent court and executing it is protected, even if the order be at that time invalid. Such a rule, however, has never been held to be applicable, or expressed in such terms as require it to be held applicable, to an order whose invalidity is of the character, and for the reasons, found by the majority in Kable. The order here, according to the Court in Kable, is not a judicial order of a superior court of record. The order is not a judicial order at all, and it was made after a process which was the antithesis of judicial proceedings.
49There is a statutory protection to the gaoler here: the Prisons Act, s 46. It was not argued that this was not applicable. No occasion arises to determine its applicability, as the gaoler was not sued. I will proceed on the assumption that it applies. The determination that the protection does not exist at common law, but does exist in a statutory provision is of the first importance to the liability of the State here. If the gaoler were protected by a principle of common law because he followed the instruction contained in an order of the Supreme Court, there would be no vicarious liability of the State. This follows from the terms of the Law Reform (Vicarious Liability) Act 1983 (NSW) (the "Vicarious Liability Act"), ss 8(1) and 10 and the true nature of vicarious liability.
50The Vicarious Liability Act, ss 8 and 10 provide as follows:
"8(1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function:
(a) is in the course of the person's service with the Crown or is an incident of the person's service (whether or not it was a term of the person's appointment to the service of the Crown that the person perform the function), or
(b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown.
...
10(1) In this section:
person includes the Crown.
statutory exemption means a provision made by or under an Act which excludes or limits the liability of a person.
(2) For the purposes of determining whether or not a person is vicariously liable in respect of a tort committed by another person, any statutory exemption conferred on that other person is to be disregarded.
(3) Except as provided by this section, nothing in this Act affects a statutory exemption conferred on a person."
51A question of statutory construction arises as to the phrase "in respect of the tort committed by a person" in s 8(1). On one view of the theory of vicarious liability, the employer is liable "not because the [employee] is liable, but because of what the [employee] has done": Darling Island Stevedoring and Lighterage Co v Long [1957] HCA 26; 97 CLR 36 at 61 (per Kitto J with whom Taylor J agreed at 66; emphasis added). Such a foundation for giving content to the phrase in s 8(1) might lead to the conclusion that the State is vicariously liable for the acts done, being imprisoning Mr Kable under colour of an order which was of an executive character and without statutory foundation or effect, even though the employee gaoler had a defence at common law of acting in obedience to an order by a judicial officer, apparently valid. This would bring into conformity the operation of ss 8 and 10 of the Vicarious Liability Act insofar as the latter excluded the effect or operation of statutory defences and the former by its own terms excluded the effect or operation of common law defences particular to the employee.
52The views of Kitto J (and Taylor J) have not prevailed. In Darling Island v Long, Fullagar J said at 57:
"The rule is, in my opinion, rightly stated, as it always is, in terms of liability and not in terms of duty. The liability is a true vicarious liability: that is to say, the master is liable not for a breach of a duty resting on him and broken by him but for a breach of duty resting on another and broken by another."
53Subject to the proper place of Broom v Morgan [1953] 1 QB 597, as to which see Windeyer J in Parker v Commonwealth [1965] HCA 12; 112 CLR 295 at 300-301, the views of Fullagar J would appear to have prevailed: Cowell v Corrective Services Commission of NSW (1988) 13 NSWLR 714 at 731-32 (Clarke JA with whom Priestley JA agreed); Commonwealth v Connell (1986) 5 NSWLR 218 at 223 (Glass JA); De Bruyn v South Australia (1990) 54 SASR 231 at 235 (King CJ); and semble Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 at [34] and Parker v Commonwealth at 301; and cf New South Wales v Ibbett [2006] HCA 57; 229 CLR 638 at [6] and [36].
54If the "liability" theory (as opposed to "conduct" theory) is accepted, as on the balance of authority it should be, there remains the need to deal with statutory exemptions or immunity from liability of torts otherwise committed. In the absence of a provision such as s 10, the existence of a particular statutory exemption or immunity in the employee, if it relieved the employee of liability, would on this hypothesis also relieve the Crown of vicarious liability: see Bell v Western Australia [2004] WASCA 205; 28 WAR 555. A legislative choice was made not so to relieve the State in these circumstances: s 10.
55This construction of s 8 as requiring the liability of the Crown employee (subject to the operation of a statutory exemption) before the State can be found vicariously liable accords with the interpretation of the Crown Proceedings Act 1972 (SA) in De Bruyn by King CJ at 235.
56Thus, if the gaoler is not liable because of a principle of the common law, the State is not liable vicariously. On the other hand, if the gaoler requires the statutory protection of a provision of a statute such as s 46 of the Prisons Act, the operation of the Vicarious Liability Act, s 10, will mean that the State is vicariously liable.
57Here, for the reasons already given, the order was not judicial in character. 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. On the assumption, and to the extent, of a principle at common law as set out above, it does not extend to a non-judicial order not arising from judicial process. That said, at the time the order was delivered to the gaoler the unconstitutionality was not patent, since the order was unquestionably made by the Supreme Court, and apparently regularly, the constitutionality of the Act having been decided by a Supreme Court judge, later upheld in the Court of Appeal, in the undoubted exercise of judicial power under s 76(i) of the Constitution and s 39(2) of the Judiciary Act 1903 (Cth). Those considerations go, however, to a decision to extend the assumed common law principle to a non-judicial order issued after non-judicial process.
58Any protected entitlement to act on and obey the order, if it exists at common law, is not compelled by the physical form of the order: Love. As an order arising from the purported exercise of invalid executive power antithetical to the judicial process and undermining of the Court's institutional place in the administration of justice under the Constitution, subject to one matter, there appears no reason, sourced in the constitutional considerations that led to invalidity, for extending protection at common law to a gaoler acting on the order in good faith, in circumstances where statutory protection exists. That one matter is an underlying policy consideration. The policy would rest on stability and confidence in the judicial system and in the orders issued by courts. It might be thought that, even in the circumstances attending the decision in Kable and the "extraordinary" legislation, the principle (in so far as it exists) should be extended to orders that were not judicial acts and were not the product of judicial process but of process that was antithetical to judicial process and judicial power, in order that confidence in orders issued by the Supreme Court not be undermined.
59Such extension of any such common law principle concerning protection to those who act in compliance with an order made by an apparently competent court must be driven by an evaluative choice or policy.
60A refusal to extend the assumed common law principle may be seen as a vindication of a constitutional boundary or guaranteed right. Here, the vice of the CP Act was described by the majority of the High Court in uncompromising terms. The Act threatened basal concepts of governmental and constitutional organisation, in particular, the confidence in the judicial branch of government and the protection of the public under the rule of law. To put the matter thus reveals the vice of the statute in co-opting the Court for purposes inimical to its structure and integrity and to its constitutional function. To adapt the words of Kirby J in Residual Assco at 655 [64], citing C L Pannam, "Unconstitutional Statutes and De Facto Officers" (1966) 2 Fed L Rev 37 at 61-62:
"'[T]here may be situations in which public inconvenience and the frustration of legitimate reliance' on an apparent but unconstitutional law 'must give way to the retroactive invalidation of official acts in order to vindicate a constitutional boundary, or to guarantee a constitutional right'."
61The relevant constitutional boundary or guarantee of a constitutional right here is that which was enunciated in Kable. Its importance had both public and private elements. It denied the orders of the Court their character as judicial acts and the character of their making as judicial process, since it was a process antithetical to the judicial process. This was in furtherance of the protection of the fundamental institutional character of the Supreme Court and of the administration of justice. It was also in furtherance of the protection of the fundamental common law right of Mr Kable not to be incarcerated (without an adjudication of criminal guilt, or otherwise than according to law) by the manifestation of the will of the Executive through the impermissible attempted use of the instrument of the Supreme Court.
62In these circumstances, it might be thought appropriate to fashion the common law in such a way that accorded with the constitutional principles, not in a way that inverted them. A conclusion that the orders for detention here (characterised as non-judicial or executive in character and made after a process antithetical to the judicial process and issued without lawful statutory authority) provide a common law basis for protection (and thus to have a form of validity) must rest upon the judicial character of the institution making them. Yet this is the very institution constitutionally undermined by the invalid provisions for the making of the orders. Such an approach may be described as counter intuitive, and as inverting the operative constitutional principles. On the other hand, not to extend the assumed common law principle to provide protection to third parties who obey even these kinds of orders may be seen to undermine the authority of the Court, by casting doubt upon whether those to whom orders are directed should follow them. This might be seen to compound the harm done by the passing of the Act itself and acting under it. If s 46 applies in these circumstances, the gaoler has, however, adequate and effective statutory protection.
63I can see the reasons, conformable with maintaining confidence in orders of the courts, for extending the operation of the assumed common law rule even to circumstances that involve extraordinary legislation such as the CP Act and the vices therein contained, and for extending the common law protection of persons such as the gaoler who act on the invalid non-judicial orders made under such legislation, as long as, in form, they are issued in the name of a court. The countervailing considerations are, however, far more powerful, in my view. This was not a judicial order. It was not made after judicial process. To extend the assumed common law principle to protect those who deprive the liberty of persons under such orders would be to fashion the common law to give efficacy to the unconstitutional attempted exercise of will of the executive, to deprive a subject of his liberty, in circumstances where the officer, who acted bona fide, is already protected by statute. I would not be willing to extend the assumed common law principle in this way. Further, if I am correct in my view that the assumed common law principle does not extend so far as to cover the present circumstances, it might be thought that it is for the High Court to take that step, given the deep involvement of constitutional principle and the operation of the integrated legal system in the Commonwealth. It is therefore unnecessary to consider finally the existence and reach otherwise of any such common law principle.
64It is unnecessary in these circumstances to consider whether the State could be liable for false imprisonment otherwise than vicariously through the liability of the gaoler (ignoring, as one must, the Prisons Act, s 46, for the position of the State). The argument did not proceed along these lines. Also, the question may involve Constitutional conceptions that may not have been covered by the notices issued under the Judiciary Act 1903 (Cth), s 78B.
65Section 28 of the CP Act sought to protect the State against the consequences of steps taken under the Act. In Kable, Toohey J at 99 found "the Act" invalid. Gaudron J at 108 found s 5(1) invalid, as well as "the remaining provisions of the Act which serve no purpose other than to carry s 5(1) into effect". McHugh J at 124 found "the Act ... invalid". Gummow J at 144 made specific reference to s 28 and said it fell along with all other relevant provisions.
66For these reasons, the claim in false imprisonment should not have been dismissed.
67BASTEN JA: From February to August 1995 the appellant, Gregory Wayne Kable, was held in a New South Wales prison. The supposed justification for his detention was an order made by a judge of the Supreme Court on an application by the Director of Public Prosecutions under the Community Protection Act 1994 (NSW). That Act permitted a detention order to be made in respect of Mr Kable (and no one else) if a judge were satisfied that he was likely to commit a serious act of violence and it was appropriate to hold him in custody.