Minister for Mental Health v A - [2017] NSWCA 288

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Minister for Mental Health v A [2017] NSWCA 288
Hearing dates: 27 September 2017
Decision date: 10 November 2017
Before: Beazley ACJ at [1];
White JA at [161];
Sackville AJA at [163]
Decision:
(1)   Remove the Mental Health Review Tribunal as a party to the appeal;

(2)   Dismiss the appeals against the determinations made by the Mental Health Review Tribunal on 15 December 2016, 3 February 2017 and 21 June 2017;
(3)   The appellant to pay the respondent’s costs in this Court.
Catchwords:
MENTAL HEALTH – determination by Mental Health Tribunal to grant conditional release of forensic patient – whether Tribunal misapplied ss 43(a) and (b) of the Mental Health (Forensic Provisions) Act 1990 (NSW)

PROCEDURE – whether Tribunal failed to set out reasons for determination – no express obligation to give reasons – obligation implicit in construction of s 77A – reasons adequate in this case
PROCEDURE – whether Minister entitled to adduce fresh evidence on appeal by way of rehearing
Legislation Cited: Mental Health (Forensic Provisions) Act 1990 (NSW), ss 39, 42, 43, 46, 47, 51, 52, 74, 75A, 76A, 77, 77A
Mental Health Act 2007 (NSW), s 140
Supreme Court Act 1970 (NSW), s 75A
Cases Cited: A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 3) [2014] NSWSC 30
A by his tutor Brett Anthony Collins v Mental Health Review Tribunal [2010] NSWSC 1363
Attorney General for the State of New South Wales v XY [2014] NSWCA 466
Kostas v HIA Insurance Services Pty Limited (2010) ALR 228; [2010] HCA 32
Public Service Board of NSW v Osmond (1986) 159 CLR 656; [1986] HCA 7
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43
Category: Principal judgment
Parties: Minister for Mental Health (Appellant)
A (Respondent)
Representation:
Counsel:
M Windsor SC; G Wright (Appellant)
P Griffin SC; N Evans (Respondent)
Solicitors:
Henry Davis York (Appellant)
NSW Legal Aid – Mental Health Advocacy Service (Respondent)

File Number(s): 2017/10970;2017/69771;2017/195003
Publication restriction: Yes
Decision under appeal

Court or tribunal:

Mental Health Review Tribunal

Date of Decision:

15 December 2016;
3 February 2017;
21 June 2017

Before:

15 December 2016: R Cogswell SC; M Giuffrida; L Houlahan; 3 February 2017: R Cogswell SC; E Parmegiani; S Woods; 21 June 2017: R Cogswell SC; S Spencer; F Cox

File Number(s):

F0783

Headnote

[This headnote is not to be read as part of the judgment]

The respondent is a forensic patient within the meaning of the Mental Health (Forensic Provisions) Act 1990 (NSW) (Forensic Provisions Act). The Minister for Mental Health appealed against three decisions of the Mental Health Review Tribunal (the Tribunal) in respect to the respondent:

(1) A determination on 15 December 2016 granting the respondent conditional release, whereby he was discharged from the facility and transferred to 24 hour intensive residential support service accommodation.

(2) A determination on 3 February 2017 refusing to grant a stay of the Tribunal’s first determination.

(3) A…

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.

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Details

Case: [2017] NSWCA 288
Decision Date: 10 November 2017

CaseChat Overview and Summary

The Minister for Mental Health appealed to the Court of Appeal of New South Wales against decisions of the Mental Health Tribunal to grant conditional release to a forensic patient. The appeal concerned whether the Tribunal had misapplied sections 43(a) and (b) of the *Mental Health (Forensic Provisions) Act 1990* (NSW) in making these determinations. The Minister also raised procedural grounds, arguing the Tribunal failed to provide adequate reasons for its decisions and that the Minister should be permitted to adduce fresh evidence on appeal by way of a rehearing.

The primary legal issues before the Court of Appeal were whether the Tribunal had correctly applied the relevant provisions of the *Mental Health (Forensic Provisions) Act 1990* concerning the conditional release of a forensic patient, and whether the Tribunal's reasons for its determinations were sufficient. A further issue was the admissibility of fresh evidence on appeal.

The Court of Appeal found that the Tribunal had not misapplied sections 43(a) and (b) of the Act. While there was no express statutory obligation for the Tribunal to provide detailed reasons, the Court held that such an obligation was implicit in the construction of section 77A of the Act. The Court concluded that the reasons provided by the Tribunal in this instance were adequate. Furthermore, the Court determined that the Minister was not entitled to adduce fresh evidence on appeal by way of a rehearing.

Consequently, the Court of Appeal ordered the removal of the Mental Health Review Tribunal as a party to the appeal, dismissed the Minister's appeals against the Tribunal's determinations made on 15 December 2016, 3 February 2017, and 21 June 2017, and ordered the appellant to pay the respondent’s costs in the Court.

Orders

Orders of the court

(1) Remove the Mental Health Review Tribunal as a party to the appeal;

(2) Dismiss the appeals against the determinations made by the Mental Health Review Tribunal on 15 December 2016, 3 February 2017 and 21 June 2017;

(3) The appellant to pay the respondent’s costs in this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Minister for Mental Health v A [2017] NSWCA 288
Hearing dates:	27 September 2017
Decision date:	10 November 2017
Before:	Beazley ACJ at [1]; White JA at [161]; Sackville AJA at [163]
Decision:	(1) Remove the Mental Health Review Tribunal as a party to the appeal; (2) Dismiss the appeals against the determinations made by the Mental Health Review Tribunal on 15 December 2016, 3 February 2017 and 21 June 2017; (3) The appellant to pay the respondent’s costs in this Court.
Catchwords:	MENTAL HEALTH – determination by Mental Health Tribunal to grant conditional release of forensic patient – whether Tribunal misapplied ss 43(a) and (b) of the Mental Health (Forensic Provisions) Act 1990 (NSW) PROCEDURE – whether Tribunal failed to set out reasons for determination – no express obligation to give reasons – obligation implicit in construction of s 77A – reasons adequate in this case PROCEDURE – whether Minister entitled to adduce fresh evidence on appeal by way of rehearing
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990 (NSW), ss 39, 42, 43, 46, 47, 51, 52, 74, 75A, 76A, 77, 77A Mental Health Act 2007 (NSW), s 140 Supreme Court Act 1970 (NSW), s 75A
Cases Cited:	A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 3) [2014] NSWSC 30 A by his tutor Brett Anthony Collins v Mental Health Review Tribunal [2010] NSWSC 1363 Attorney General for the State of New South Wales v XY [2014] NSWCA 466 Kostas v HIA Insurance Services Pty Limited (2010) ALR 228; [2010] HCA 32 Public Service Board of NSW v Osmond (1986) 159 CLR 656; [1986] HCA 7 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43
Category:	Principal judgment
Parties:	Minister for Mental Health (Appellant) A (Respondent)
Representation:	Counsel: M Windsor SC; G Wright (Appellant) P Griffin SC; N Evans (Respondent) Solicitors: Henry Davis York (Appellant) NSW Legal Aid – Mental Health Advocacy Service (Respondent)
File Number(s):	2017/10970;2017/69771;2017/195003
Publication restriction:	Yes
Decision under appeal	Court or tribunal: Mental Health Review Tribunal Date of Decision: 15 December 2016; 3 February 2017; 21 June 2017 Before: 15 December 2016: R Cogswell SC; M Giuffrida; L Houlahan; 3 February 2017: R Cogswell SC; E Parmegiani; S Woods; 21 June 2017: R Cogswell SC; S Spencer; F Cox File Number(s): F0783