Attorney General of New South Wales v BW (No 2)

The Attorney General of New South Wales sought an interim extension of the status of BW, a forensic patient, from the Court of Appeal of New South Wales. The dispute arose from the impending expiry of BW's limiting term as a forensic patient, and the Attorney General's concern that an appeal against a decision to not extend this term would be rendered futile if the extension was not granted pending the appeal.

The central legal issue before the Court of Appeal was whether it had the power to make an interim order extending the status of a forensic patient beyond the expiry of their limiting term, specifically to prevent the potential futility of an appeal. This involved considering the interpretation and application of relevant provisions within the *Mental Health (Forensic Provisions) Act 1990* (NSW), particularly concerning the court's power to grant such interim relief in circumstances where the substantive appeal might otherwise be rendered nugatory.

Brereton JA reasoned that the court possessed the inherent power to make orders to preserve the subject matter of an appeal and prevent its futility. His Honour considered that the potential for BW to be released from forensic patient status before the determination of the appeal, thereby rendering the appeal moot, justified the making of an interim extension. The court applied the principle that where an appeal would be rendered futile by the expiry of a statutory term, an interim order may be made to preserve the status quo pending the appeal's determination.

Consequently, an interim extension order was made pursuant to clause 10 of Schedule 1 of the *Mental Health (Forensic Provisions) Act 1990* (NSW), continuing BW's status as a forensic patient until and including 6 February 2020, or until further order.