AB v Beer

[2018] WASCA 12

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   AB -v- BEER [2018] WASCA 12

CORAM:   MURPHY JA

BEECH JA

HEARD:   22 DECEMBER 2017

DELIVERED          :   12 FEBRUARY 2018

FILE NO/S:   CACV 89 of 2017

BETWEEN:   AB

Appellant

AND

INGO BEER
First Respondent

INNER CITY MENTAL HEALTH SERVICE
Second Respondent

MOBILE COMMUNITY OUTREACH TEAM
Third Respondent

MENTAL HEALTH TRIBUNAL
Fourth Respondent

STATE ADMINISTRATIVE TRIBUNAL
Fifth Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :CORBOY J

Citation  :AB -v- BEER [2017] WASC 199

File No  :GDA 9 of 2016, GDA 10 of 2016, GDA 1 of 2017, CIV 3024 of 2016

Catchwords:

Practice and procedure - Application for extension of time - Application to join parties - Appellant's case not filed - Whether appeal should be dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA)

Application for joinder of parties - No arguable basis for joinder of parties

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA)

Result:

Application to extend time, join parties and have parties give evidence dismissed
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

First Respondent           :     Ms C J Thatcher

Second Respondent      :     Ms C J Thatcher

Third Respondent          :     Ms C J Thatcher

Fourth Respondent        :     Ms C J Thatcher

Fifth Respondent           :     No appearance

Solicitors:

Appellant:     In person

First Respondent           :     State Solicitor for Western Australia

Second Respondent      :     State Solicitor for Western Australia

Third Respondent          :     State Solicitor for Western Australia

Fourth Respondent        :     State Solicitor for Western Australia

Fifth Respondent           :     No appearance

Case(s) referred to in judgment(s):

AB and Mental Health Tribunal [2016] WASAT 71

AB v Beer [2017] WASC 199

1. JUDGMENT OF THE COURT: This matter came to a hearing on 22 December 2017 by way of a registrar's notice to attend dated 5 December 2017 to consider the appellant's application dated 28 November 2017, and for the appellant to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules).

2. The appellant's application dated 28 November 2017 seeks orders (amongst other things) for the joinder of a large number of persons and entities as respondents to the appeal, and to require those persons and entities to, in effect, give discovery on oath of 'all documents in their power and/or possession having anything to do with the … Appellant or any of his claims since 1966 to this day'.

3. The persons and entities sought to be joined include:

   (1)QBE Insurance Group Ltd, its directors, chief executive officers and state managers since 1974;

   (2)The Insurance Commission of Western Australia and its directors and senior officers since 1998;

   (3)CSR Group Ltd and its subsidiaries since 1966;

   (4)Clough Engineering and its predecessors and all its joint venture partners in the Robe River project since 1971;

   (5)Transfield (WA) Pty Ltd and all its managing directors since 1974;

   (6)The Commonwealth Bank of Australia, its chief executive officers and Fremantle branch managers since 1972;

   (7)'The Australia Post' since 1974;

   (8)The Australian Security Intelligence Organisation since 1966 and 'many of its directors and covert agents';

   (9)'The Australian Federal Police' and its commissioners since 1966;

   (10)The Attorneys General and the directors and other executive staff of the Department of the Attorney General since 1966; and

   (11)Legal Aid Commission of Western Australia and its predecessors since 1975, and lawyers appointed by the Legal Aid Commission.

4. The appellant's application is supported by an affidavit that he swore on the same day.  The affidavit refers to a large and disparate variety of complaints spanning many years going back to the 1960s.  The affidavit includes allegations to the effect that a 'transmitting device' was implanted in his head, that certain lawyers and government departments conspired to destroy his rights and infect him with diseases, that a camera was unlawfully installed in his left lower jaw in the course of dental work in 1977, that he was poisoned in 1967, and that various government agencies, including the Australian Taxation Office, the Australian Federal Police and local and foreign security services, covered up certain criminal activities against the appellant.

5. The appeal in this matter is against a decision of Corboy J on 21 July 2017 in which his Honour dismissed an appeal by the appellant against a decision of the State Administrative Tribunal concerning the appellant's mental health:  AB v Beer[1] (primary decision).  In that decision, his Honour also set aside subpoenas served by the appellant and dismissed an application by the appellant to join additional respondents to the matter.

   [1] AB v Beer [2017] WASC 199.

6. The appellant filed an appeal notice in respect of the primary decision on 31 August 2017.  The appeal notice was filed out of time.  Nor did the appellant file an appellant's case within time.  On 22 September 2017, an order was made extending the time for the appellant to file and serve his appellant's case to 30 November 2017.  That order has not been complied with. 

Background

1. The appellant has been diagnosed with chronic paranoid schizophrenia, but disputes that diagnosis.  He has also been diagnosed as suffering from insulin‑dependent diabetes mellitus.[2]

   [2] Primary decision [1].

2. The second respondent (Inner City Mental Health Service) is associated with the third respondent (Mobile Community Outreach Team).  Inner City Mental Health Service is a mental health team that comprises the first respondent (Dr Beer), a senior social worker and two clinical nurses.  Members of Inner City Mental Health Service have sought to engage with the appellant to treat his mental illness.  Dr Beer is a consultant psychiatrist to the appellant and has supervised attempts to treat him.[3]

   [3] Primary decision [2].

3. On 17 November 2015, a community treatment order was made in respect of the appellant (CTO).  Dr Beer was the supervising psychiatrist under that order.  The purpose of the order was to authorise the administration of anti‑psychotic medication without the appellant's consent.[4]

   [4] Primary decision [3].

4. On 8 January 2016, the fourth respondent (Mental Health Tribunal) (MHT) confirmed the order, over the appellant's objection.  The appellant applied to the fifth respondent (State Administrative Tribunal) (Tribunal) for a review of that decision.[5]

   [5] Primary decision [4].

5. On 1 April 2016, the MHT undertook an interim review of the CTO and confirmed its continuation.  The appellant again applied to the Tribunal for a review of that decision.[6]

   [6] Primary decision [5].

6. The Tribunal heard both of the appellant's applications together, and decided, by reasons delivered 15 June 2016, that the CTO should remain in effect:  AB and Mental Health Tribunal[7] (Tribunal decision).

   [7] AB and Mental Health Tribunal [2016] WASAT 71.

7. The appellant appealed to the General Division of the Supreme Court against the Tribunal decision, and thereby commenced proceedings GDA 9 of 2016 and GDA 10 of 2016.  He also sought various interim orders, including a stay of the Tribunal decision, the effect of which would have been to suspend the operation of the CTO pending the determination of the appeal.[8]

   [8] Primary decision [7].

8. On 16 September 2016, a further review of the CTO was conducted by the MHT, and the MHT confirmed the continuation of the CTO.  The appellant sought to commence an appeal from that decision to the Supreme Court.  However, the Principal Registrar refused to accept the notice of appeal.  The appellant accordingly filed an ex parte notice of motion seeking to appeal from the Principal Registrar's decision, and thereby commenced proceedings CIV 3024 of 2016.[9]

   [9] Primary decision [8].

9. On 23 December 2016, another periodic review of the CTO was conducted, and the MHT again confirmed its continuation.  The appellant again purported to commence an appeal to the Supreme Court against that decision, and the notice of appeal was accepted for filing in this instance.  Accordingly, the appellant commenced proceedings GDA 1 of 2017.[10]

   [10] Primary decision [9].

10. On 1 April 2017, a periodic review of the CTO was conducted and the MHT again confirmed its continuation.  Dr Beer, however, has since determined that the CTO should be revoked and the order is no longer in effect.[11]

    [11] Primary decision [10].

Primary decision

1. The various matters, namely the appeals in GDA 9 of 2016, GDA 10 of 2016, GDA 1 of 2017 and the ex parte motion in CIV 3024 of 2016, came on for hearing by Corboy J.

2. The respondents contended that the appeals were moot following the decision of the MHT in September 2016 to confirm the continuation of the CTO.  Assuming the appeal to the Supreme Court from that decision (and the subsequent decision of the MHT in December 2016) was incompetent, the respondents contended that the CTO continued to apply by force of orders made by the MHT after the applications for review had been decided.  They contended that it did not continue to operate by reason of the Tribunal decision.  The respondents contended, in any event, that the appeals were moot once the CTO had been revoked.[12]

   [12] Primary decision [11] - [12]. 

3. An issue arose before the primary judge concerning subpoenas that had been served by the appellant.  Some documents were produced to the court, but the majority of the recipients applied to set aside the subpoenas on grounds that they lacked any legitimate forensic purpose, were oppressive and it was an abuse of process to compel the recipients to attend court for the purpose of giving evidence.[13]

   [13] Primary decision [13].

4. The primary judge subsequently concluded that the subpoenas served by the appellant should be set aside.  The parties were advised of that decision, and a further hearing was convened for the purpose of receiving additional submissions concerning the disposition of the appeals.  The appellant made another application at that hearing for orders that various persons be joined as parties to the appeal, that discovery be given by those parties and that damages be awarded to him (the Further Application).[14]

   [14] Primary decision [14].

5. The primary judge summarised his findings in respect of the various matters before him as follows:[15]

   (a)The court has no jurisdiction to entertain an 'appeal' from a decision of the MHT.  Consequently, the ex parte motion appealing from the decision of the Principal Registrar will be refused and the appeal commenced in respect of the December 2016 periodic review will be dismissed.

   (b)The appeals were not moot while the CTO remained in force.  The order might have been set aside by this court depending on the nature of any error found to have been made by the Tribunal or if some other sufficient reason had been shown.  That might have been so even if the MHT had again confirmed the continuation of the CTO after the decision of the Tribunal. 

   (c)There was no order that the court could make affecting the operation of the CTO once the order had been revoked.  However, that did not mean that the appeal from the decision of the Tribunal lacked utility.  It was in the interests of justice for the appeal to be determined; the parties were entitled to have the appeal determined having regard to the matters that were raised.

   (d)The Tribunal made no error of fact or law in reaching its decisions and there was no other sufficient reason for allowing an appeal.

   (e)The application for a stay would have been refused if the CTO had not been revoked.  The appeals had no reasonable prospect of success.  That was apparent from the evidence filed in the stay application and the parties' submissions. 

   (f)The subpoenas served by [the appellant] will be set aside on the ground that they have no legitimate forensic purpose having regard to the reasons given by [the appellant] for the subpoenas and the subject matter of the appeals.

   (g)The Further Application will be refused.  The application concerned matters that were beyond the court's jurisdiction in this appeal.

   [15] Primary decision [15].

Disposition

1. Neither the appellant's affidavit in support, nor his submissions, disclose any arguable basis upon which it would be proper to order a joinder of the persons and entities referred to in his application, or to make any of the other orders sought in his application dated 28 November 2017.  That application should be dismissed. 

2. As to the appeal, again, having made full allowance for his position as an in person litigant and his particular circumstances, there is nothing in the appellant's affidavit or submissions which indicates any arguable basis upon which it might be concluded that the primary decision was wrong. Insofar as the appellant's submissions were directed to identifying an error in the primary decision, the substance of his complaints appeared to raise the question whether he had been afforded procedural fairness. Nothing in the material before us or in the appellant's submissions provides any plausible support for a conclusion that the primary judge failed to afford procedural fairness to the appellant. Otherwise, the appellant's case on appeal appeared to rely on his joinder application which, as we have said, must be dismissed. Moreover, there is no reason to suppose that any arguable case would emerge if the court granted a further extension to the appellant to file an appellant's case. Accordingly, in all the circumstances, it is appropriate for the appeal to be dismissed pursuant to r 43(2)(g)(ii) of the Rules.