New South Wales v TD

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Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: State of New South Wales v TD [2013] NSWCA 32
Hearing dates:15 November 2012
Decision date: 26 February 2013
Before: Bathurst CJ at [1];
Basten JA at [8];
Barrett JA at [78];
Hoeben JA at [96];
Sackville AJA at [98]
Decision:

(1) Dismiss the appeal.

(2) Order the appellant to pay the respondent's costs in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

ADMINISTRATIVE LAW - habeas corpus - plaintiff detained in a prison - court order authorised detention in a hospital - whether habeas corpus available to plaintiff - relationship between habeas corpus and false imprisonment - Mental Health (Criminal Procedure) Act 1990 (NSW), ss 24 and 27

MENTAL HEALTH - District Court nominated "limiting term" in respect of plaintiff - District Court ordered that plaintiff be detained in a hospital - plaintiff detained in a prison - whether person has residual liberty after nomination of limiting term - whether court has discretion to decline to make order with respect to custody of person after nominating limiting term - discussion of R v AN (No 2) [2006] NSWCCA 218; 66 NSWLR 523 - Mental Health (Criminal Procedure) Act 1990 (NSW), ss 24 and 27

TORT - false imprisonment - plaintiff detained in a prison - court order authorised detention in a hospital - whether plaintiff had residual liberty to be vindicated by tort of false imprisonment - relationship between habeas corpus and false imprisonment - whether false imprisonment available where plaintiff detained in the wrong place - Mental Health (Criminal Procedure) Act 1990 (NSW), ss 24 and 27
Legislation Cited: Civil Procedure Act 2005 (NSW), s 72
Court Suppression and Non-publication Orders Act 2010 (NSW), s 7
Crimes (Administration of Sentences) Act 1999 (NSW), ss 4, 72, 232, 261, 262; Parts 2, 3, 4
Interpretation Act 1987 (NSW), s 33
Mental Health Act 1990 (NSW), ss 79, 80, 84, 89, 95; Ch 5; Dictionary
Mental Health (Criminal Procedure) Act 1990 (NSW), ss 3, 8, 9, 10, 11, 11A, 14, 16, 17, 18, 19, 20, 22, 23, 24, 27, 80, 84
Mental Health Regulation 2000 (NSW), cl 19
Prison Act 1952 (UK), s 12
Prisons Act 1952 (NSW), ss 27, 39
Cases Cited: Arbon v Anderson [1943] KB 252
Cobbett v Grey (1849) 4 Exch 729; 154 ER 1409
Collins v Downs (1982, unrep, NSWSC, Roden J)
Day v The Queen [1984] HCA 3; 153 CLR 475
Darcy v State of New South Wales [2011] NSWCA 413
Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; 127 CLR 106
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Details
Case
[2013] NSWCA 32
Decision Date

CaseChat Overview and Summary

The plaintiff, detained in prison, sought a writ of habeas corpus and damages for false imprisonment against the State of New South Wales. The plaintiff's detention in prison followed a District Court order authorising his detention in a hospital, made pursuant to the *Mental Health (Criminal Procedure) Act 1990* (NSW). The Court of Appeal considered the availability of habeas corpus and the tort of false imprisonment in these circumstances.

The central legal issues before the Court of Appeal were whether the plaintiff retained any residual liberty that could be vindicated by a writ of habeas corpus or an action for false imprisonment, given the District Court's order for hospital detention. The Court also had to determine the relationship between habeas corpus and false imprisonment, and whether the latter tort was available when a person was detained in the wrong place, rather than being detained without any lawful authority. The Court considered the effect of the District Court nominating a "limiting term" under the Act and whether the court retained a discretion to decline to make an order for custody after nominating such a term.

The Court of Appeal held that the writ of habeas corpus was not available to the plaintiff because the District Court's order for hospital detention, although not complied with by the prison authorities, constituted a lawful basis for detention. The Court reasoned that habeas corpus is concerned with the legality of detention, not the place of detention. Similarly, the tort of false imprisonment was not available as the plaintiff was not detained without lawful authority, but rather in the wrong place. The Court affirmed that the plaintiff's remedy lay in ensuring compliance with the court order for hospital detention, not in challenging the fundamental legality of his detention. The Court referred to and applied principles discussed in *R v AN (No 2)* [2006] NSWCCA 218; 66 NSWLR 523.

The Court of Appeal dismissed the appeal and ordered the appellant to pay the respondent's costs.

Orders

Orders of the court

(1) Dismiss the appeal.

(2) Order the appellant to pay the respondent's costs in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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