Huang v Victoria Police

[2002] VSC 360

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PRACTICE COURT

No. 8540 of 1995

HONG-CHAO HUANG	Plaintiff
v
VICTORIA POLICE AND ST. VINCENT'S HOSPITAL (MELBOURNE) LTD	Defendants

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 AUGUST 2002
DATE OF JUDGMENT:	28 AUGUST 2002
CASE MAY BE CITED AS:	HUANG v VICTORIA POLICE & ANOR
MEDIUM NEUTRAL CITATION:	[2002] VSC 360

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Tort – Negligence – Allegation Victoria Police failed to act upon a complaint – Allegation St Vincent’s Hospital wrongfully and maliciously certified the plaintiff under the Mental Health Act 1996 – Action discontinued – No steps taken for six years thereafter – Application to reinstate – General considerations – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the First Defendant	No appearance
For the Second Defendant	Ms K Bishop (solicitor)	Phillips Fox

HIS HONOUR:

1. On 8 December 1995, the plaintiff commenced, by Writ, a proceeding against the Victoria Police and St. Vincent’s Hospital.  The statement of claim was endorsed on the writ.  It is in handwriting. It alleges, among other things, that the first defendant “[a]t all material times … held itself out as the Police station that was competent and able to care for disorders such as I suffered from.”  It then goes on to allege that both in early January 1994 and late in the same month, the plaintiff reported – to the Asian Squad of the Police – that he was being followed.  On each occasion he was told to see a psychologist. He, acted on this advice.

1. The result, it would seem from the statement of claim, was a referral from the psychologist to the second defendant;  but I am informed by its counsel that the Hospital would, if the case were to go further, allege that the psychiatrist who thereafter treated the defendant merely rented rooms from it while otherwise having no connection with it.

1. At all events, the statement of claim pleads that there thus began an association with the Hospital which lasted some six months.  But the situation did not improve.  The plaintiff continued to be followed.

1. According to the statement of claim, the plaintiff only agreed to see a psychologist after having been promised by the police that, “if things (i.e. the  situation that I was followed and my room had been broken into) didn’t improve after I had consulted the psychologist, I would still ask the police for help.”  Consistently with this, the plaintiff sought that help.  The police, however, “breached the agreement we had made before, and … deliberately illegally classified me as a mental patient.”  This caused the plaintiff pain and suffering.

1. Further pain and suffering was caused, so the statement of claim alleges, as a result of the second defendant reporting to the police that the plaintiff “had [a] mental problem.”  The hospital also incorrectly diagnosed the plaintiff and issued two reports which “were contradicted” (it is not clear what this means) but which, it would seem, the plaintiff alleges were instrumental in his being “deliberately illegally classified … as a mental patient” by the second defendant.

1. In addition to the pain and suffering to which I have already referred, the plaintiff alleges that as a result of the wrongful action of the defendants he has suffered loss of sight and a disease in his cervical spine as well as “very serious mental suffering”.

1. There is no need, in the application presently before me, to analyse the merits of the pleading thus set out.  It is sufficient to observe that no cause of action appears to have been made out against the first defendant, even assuming that it can be sued under the name of the “Victoria Police”.  And although he who classifies someone as being mentally ill while knowing that the person is sane undoubtedly commits a wrong, there are many legitimate criticisms that could be made of the way in which the cause of action against the Hospital has been framed in the statement of claim. It is perhaps also relevant to note that, by s.122 of the Mental Health Act 1986, no civil or criminal proceedings lie against any person for anything done in good faith and on the authority of the Act. I appreciate that the plaintiff has pleaded a lack of good faith, but without any particulars having been provided; and his allegations cannot be dealt with until the individual or individuals who treated him at the Hospital are identified. There is nothing before me to indicate that the plaintiff is able to do so.

1. By a notice of discontinuance dated and filed on 12 July 1996, the plaintiff wholly discontinued “this action against all of the defendants”.  He now seeks to set that notice aside, and to change the name of the first defendant to “the State of Victoria”.  The application is by summons issued on 7 August 2002. It is supported by an affidavit sworn by the plaintiff on that day.  In it he states, in effect, that he was a patient in Heatherton Hospital when the notice of discontinuance was filed;  was then under the influence of drugs; and was accompanied by a social worker who did not explain what was being done.  In those circumstances the plaintiff could not “do anything to handle and follow the case.”  Then, between 1997 and 2001, the plaintiff lived in New South Wales.

1. Whatever the situation when the plaintiff filed the notice of discontinuance, there is no explanation, apart from his interstate address, for the plaintiff’s subsequent delay in the issue of the summons now before me. But it is now over six years since the date of its being filed; and, indeed, six years had elapsed before the present summons was issued. This is a period longer than the six years prescribed in s.5 of the Limitation of Actions Act 1958 for the bringing of actions founded on simple contract or for damages for negligence or breach of duty.

1. The court must of course always seek to do justice to all parties according to law.  In considering applications such as that presently before me, this involves not only an assessment of the reasons for any delay, but also the effect which such delay may have on the parties who have not been guilty of it. On the material before me, I am bound to conclude that the delay cannot be attributed to either defendant. Yet the likely difficulty of either now obtaining satisfactory instructions from the individuals who relevantly dealt with the plaintiff is obvious.

1. Given the state of the pleadings, the inevitable prejudice to each defendant should the proceeding now be allowed to go forward, and the lack of a satisfactory explanation for the plaintiff’s failure to institute this application before 7 August this year, it seems to me that justice requires that the application be dismissed.  I will order accordingly.

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