Pahlow-Silady v Siladi

[1999] NSWSC 530

CITATION:	Pahlow-Silady v Siladi; Estate Stephen Silady [1999] NSWSC 530
CURRENT JURISDICTION:	Probate Division
FILE NUMBER(S):	109172/93
HEARING DATE(S):	31/05/99
JUDGMENT DATE:	31 May 1999
PARTIES :	Pauline Mary Pahlow-Silady (P) John Siladi (D)
JUDGMENT OF:	Young J

COUNSEL :	Plaintiff: J Jobson Defendant: D Davies SC
SOLICITORS:	Plaintiff: D G Stuart Defendant: O'Connor Filewood & Co
CATCHWORDS:	Mental Health [5]; Confinement order; Procedures to be strictly followed; Written reasons must be given at or shortly after order made
ACTS CITED:	(NSW) Mental Health Act 1990 s 53
DECISION:	See para 5

THE SUPREME COURT
OF NEW SOUTH WALES
PROBATE DIVISION

YOUNG, J

MONDAY 31 MAY 1999

109172/93 - PAULINE MARLY PAHLOW-SILADY V JOHN SILADI; RE ESTATE OF STEPHEN SILADY

JUDGMENT
1 HIS HONOUR : This is an application for an adjournment of a matter that has been in this court's list since 1993. It has already had one trial and been to the Court of Appeal. It is ready to be heard tomorrow. The court conducted a pre-trial on 4 May 1999 and there was apparently nothing that would stop it being heard.
2 However, last week I was told that in fact the plaintiff was allegedly mentally ill. There was no medical evidence. Today I have been given a photostat document, which appears to be signed by Magistrate Jerram, but the "Reasons for Decision" portion of the order, mandatory under s 53 of the Mental Health Act 1990 has not been filled in.
3 I am told that it is not the custom of magistrates these days to give written reasons; that they put their reasons on tape to be transcribed later. That does not appear to be in accordance with s 53. That section requires the reasons to be written. A magistrate may give oral orders or directions which are to be recorded, but his or her reasons are to be recorded in writing. This does not mean whenever the transcription service gets round to transcribing them, but forthwith or within a reasonably short time after they are given. As more than a fortnight has now passed, a reasonable time has well and truly expired.
4 Although most cases such as the present are doubtless seen as routine, the law is extremely tender where an order is made restricting the liberty of the subject even for protective reasons and statutes allowing for detention must be strictly observed. As well as that principle, in this case, it is necessary to have the reasons for other curial purposes. As the Protective Judge, I am perhaps more sensitive to proper requirements being met than others might be. Both because the section has not been complied with and because of the lack of any other proper medical evidence this Court is put in the impossible position of not knowing what is the real state of the plaintiff's health.
5 I trust that this judgment will be brought to the attention of the learned Magistrate and that we may have the benefit of her reasons by next Monday, 7 June 1999. I have put the matter in the call over for 9 June 1999, but I will need to know next Monday, by an affidavit from a medical practitioner, what is the plaintiff's prognosis.
6 The matter will go into the call over on 9 June 1999 before the Registrar and in my Probate and Protective List next Monday, 7 June 1999.

oOo

Last Modified: 06/02/1999