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Jones v Booth

Jones v Booth

Case [2019] NSWSC 1066 21 August 2019

Declaratory Relief

Jurisdiction

Statutory Interpretation

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Jones and Anor v Booth and Anor [2019] NSWSC 1066
Hearing dates: 7 August 2019
Date of orders: 21 August 2019
Decision date: 21 August 2019
Jurisdiction: Common Law
Before: Johnson J
Decision:
1. The Amended Summons is dismissed.
2. The parties are to exchange, and provide to Johnson J’s Associate, written submissions (not exceeding three pages) on the issue of costs within seven days from today, with the Court to give judgment thereafter on any costs application on the papers and without the need for a further hearing.

Catchwords: CIVIL LAW – declaratory relief sought concerning qualifications of a psychologist to furnish a report in support of a s.32 Mental Health (Forensic Provisions) Act 1990 application – where report rejected by Magistrate as it was not a psychiatric report – report later accepted by different Magistrate – application under s.32 later successful – whether live controversy exists for grant of declaratory relief – lack of utility or real interest – Plaintiff seeks advisory opinion without reference to concrete facts – appropriate to make general observations concerning construction and operation of s.32 – no bright line test as to areas where a psychological report can or cannot be received on a s.32 application – application for declaratory relief refused
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007
Crimes Act 1900
Evidence Act 1995
Mental Health (Forensic Provisions) Act 1990
Mental Health Act 2007
Supreme Court Act 1970
Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406
Australian Institute of Private Detectives Ltd v Privacy Commissioner (2004) 139 FCR 394; [2004] FCA 1440
Director of Public Prosecutions (NSW) v Saunders [2017] NSWSC 760
Director of Public Prosecutions (NSW) v Sheen [2017] NSWSC 591
Director of Public Prosecutions (NSW) v Soliman [2013] NSWSC 346
Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154
Director of Public Prosecutions v Wallman [2017] NSWSC 40
Forster v Jododex Australia Pty Limited (1972) 127 CLR 421; [1972] HCA 61
Jung v R [2017] NSWCCA 24
Lam v R [2015] NSWCCA 143
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29
Oil Basins Limited v Commonwealth of Australia (1993) 178 CLR 643; [1993] HCA 60,
R v Arnold [2004] NSWCCA 294
R v HW [2017] NSWLC 25
R v Peisley (1990) 54 A Crim R 42
R v Petroulias (No. 36) (2008) 73 ATR 83; [2008] NSWSC 626
R v Whitbread (1995) 78 A Crim R 452
Robertson v Director of Public Prosecutions (NSW) [2017] NSWCA 180
WW v R [2012] NSWCCA 165
Texts Cited: ---
Category: Principal judgment
Parties: Bradley Steven Jones (First Plaintiff)
Joseph Perdicaro (Second Plaintiff)
Leading Senior Constable Darren Booth (First Defendant)
Local Court of New South Wales (Second Defendant)
Representation:
Counsel:
Mr MW Smith (Plaintiffs)
Ms S…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jones v Booth

Details

AGLC: Jones v Booth [2019] NSWSC 1066
Case: [2019] NSWSC 1066
Decision Date: 21 August 2019

CaseChat Overview and Summary

The case of Jones v Booth arose from a dispute concerning the qualifications of a psychologist to furnish a report in support of a section 32 Mental Health (Forensic Provisions) Act 1990 application. The applicant, Jones, sought declaratory relief from the court to clarify the qualifications required for a psychologist to provide a report in such applications. The respondent, Booth, argued that the applicant had no real interest in the matter and was seeking an advisory opinion without reference to concrete facts.

The legal issues before the court were whether a live controversy existed for the grant of declaratory relief, the utility or real interest of the applicant in the matter, and the appropriateness of making general observations concerning the construction and operation of section 32 of the Act. The court was required to determine whether a psychologist could provide a report in support of a section 32 application and, if so, under what circumstances.

The court found that there was no live controversy for the grant of declaratory relief as the report in question had already been accepted by a different Magistrate, and the application under section 32 had been successful. The court held that there was a lack of utility or real interest in the matter, and the applicant was seeking an advisory opinion without reference to concrete facts. The court also found that it was appropriate to make general observations concerning the construction and operation of section 32 of the Act. The court held that there was no bright line test as to areas where a psychological report could or could not be received on a section 32 application. The application for declaratory relief was therefore refused.

The court did not make any final orders in the case as the application for declaratory relief was refused. The court did, however, make general observations concerning the construction and operation of section 32 of the Act, which may be of assistance to psychologists and legal practitioners in future cases.

Orders