QA v Chief Psychiatrist of the Act
[2018] ACTCA 10
•11 April 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | QA v Chief Psychiatrist of the ACT |
Citation: | [2018] ACTCA 10 |
Hearing Date: | 9 April 2018 |
DecisionDate: | 11 April 2018 |
Before: | Loukas-Karlsson J |
Decision: | 1. The appeal is dismissed. 2. No order as to costs. |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – whether appeal was incompetent |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 5472 Mental Health Act 2015 (ACT) ss 48, 58(2), 58(2)(d), 267 Supreme Court Act 1933 (ACT) ss 37E, 37J, 37O |
Cases Cited: | Allesch v Maunz [2000] HCA 40; 203 CLR 172 Calvary Hospital Auxiliary Inc. v D’Amico [2016] ACTCA 39 Whan v McConaghy [1984] HCA 22; 153 CLR 631 |
Parties: | QA (Appellant) Chief Psychiatrist of the ACT (Respondent) |
Representation: | Counsel Self-represented (Appellant) Ms N Tarbet (Respondent) |
| Solicitors Self-represented (Appellant) ACT Government Solicitor (Respondent) | |
File Number: | ACTCA 52 of 2017 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Mossop J Date of Decision: 20 October 2017 Case Title: QA v Chief Psychiatrist of the ACT Citation: [2017] ACTSC 306 |
LOUKAS-KARLSSON J
Introduction
This is an application by the respondent to dismiss an appeal against the whole of the orders made by His Honour Justice Mossop (the primary judge) on 20 October 2017 in QA v Chief Psychiatrist of the ACT [2017] ACTSC 306 (‘QA’).
The appellant, who was the subject of the order, was self-represented.
The notice of appeal identified the order as:
To appeal revoke refuse the treatment order of perjury & revoke refuse the toxic injection
The grounds of the appeal were that paragraphs [9]-[10] of the primary judge’s judgment were “perjury” and further stated as follows:
Dear judge, today I talk with Dr Garside & find out what “evidence he has to diagnosis me: some delusions. I find out he consider Peking men behind him as a delusion; but he confess he accept china man $ 7000,000 to torture me proved Peking men behind him is not a delusion.
The female judge consider my inventions as delusion by listen to Peking men was proved Peking men try to take over my inventions by call my inventions as delusion. My inventions were already published & became the products to prove truth but truth not permit to take over steal corrupt. I declared my inventions to our capitalism republic Australia such as Angela diesel invention.
Therefore, I as Australia Nation Safety Law Authority Master Doctor [redacted] 957 declare I am healthy normal excellent to revoke the perjury treatment order & torture toxic injection for my safety & wellbeing; please accept. Thank you!
Delusion: unreal thought.
Perjury: evil accuse
Evil: bad & harmful
Torture: pain & suffer
Capitalism: work to earn pay
Invention: idea bright the world.
The orders sought are:
Appeal the treatment order.
The original proceedings
The case of QA was an appeal brought pursuant to s 267 of the Mental Health Act2015 (ACT) (‘MH Act’) from a decision of the ACT Civil and Administrative Tribunal (‘ACAT’) to make a Psychiatric Treatment Order (‘PTO’) under s 48 of the MH Act.
The appellant’s complaints about the ACAT decision were summarised by the respondent at [18] of the primary judge’s reasons. They were as follows:
(a)The findings of fact and the decision made by the Tribunal were not reasonably open to the Tribunal on the evidence before it.
(b)The Tribunal demonstrated bias and fell into error by accepting a bribe from a Chinese war criminal.
(c)The reasons given by the Tribunal amounted to perjury.
(d)The decision of the Tribunal fell into error in so far as it found that the condition of the appellant satisfied the definition of mental illness.
(e)The Tribunal erred in finding that the appellant lacked decision-making capacity.
(f)The Tribunal erred in finding that she was likely to harm herself.
(g)The Tribunal erred in finding that she was likely to suffer mental deterioration.
(h)The Tribunal erred by failing to take into account a relevant consideration, namely in Neate P’s refusal to accept the truth of the statements of the appellant.
(i)The Tribunal fell into error by failing to take into account a relevant consideration, namely that the Chinese “wanted to have treatment orders from mental Tribunal [because] they want China war continue in Australia”.
The primary judge considered a brief statement of the Tribunal’s reasons and concluded at [21] that the content of the statement “closely tracks the requirements of s 58(2) for the making of a PTO”. His Honour relevantly found that:
(a)It was open to the Tribunal to make a finding that the appellant had a mental illness (at [21(a)]).
(b)The Tribunal had reasonable grounds for finding that the appellant was likely to do serious harm to herself, namely by way of reputational harm (at [21(d)]).
(c)The Tribunal had reasonable grounds to find that the applicant was likely to suffer serious mental deterioration (at [21(e)]).
The primary judge noted at [22] that:
The statement of the tribunal does not specifically address the requirement in s 58(2)(d) that the Tribunal be satisfied that the harm or deterioration or likely harm or deterioration is of such a serious nature that it outweighs the person’s right to refuse consent.
However, his Honour concluded at [22] that:
having regard to the nature of the evidence before the Tribunal, it is clear that the Tribunal was so satisfied…it is clear in light of the evidence that it ought to have been so satisfied and I would be so satisfied.
10. In relation to the other matters raised by the appellant, the primary judge concluded at [23] that:
(a) there was no evidence of any bribes being given by a Chinese war criminal or anybody else to any relevant person and hence no basis for concluding that the decision of the Tribunal was affected by an apprehension of bias;
(b) The members of the ACAT were entitled to refuse to accept the truth of the appellant’s statements. It was clearly open (and in my view correct) for the members of the Tribunal to prefer the evidence of Dr Murphy to the statements of the appellant denying that she suffered from any mental illness.
(c) Similarly it did not involve a failure to take into account a relevant consideration the matters described at 18(i) above as there was no probative evidence of that fact and it was clearly a product of the delusional thinking of the appellant.
11. The primary judge dismissed the appeal. At paragraph [24], his Honour concluded that:
It is very clear both from the evidence and the submissions made by the appellant at the hearing of the appeal that she is very frustrated at the conclusions of the medical professionals and the ACAT that she suffers from a mental illness warranting what she considers to be very invasive orders. It is very apparent that she considers that she does not suffer from a mental illness. She is particularly frustrated that her explanations to both doctors and members of the Tribunal failed to persuade them that she does not suffer from a mental illness. It is apparent that (at least in her present state of mind) she will never accept the conclusion of the medical experts that she has a mental illness. However the evidence is such that the conclusion reached by the Tribunal is clearly correct. As a consequence the appeal must be dismissed. The respondent did not seek any order as to costs.
The appeal
12. On 31 October 2017 the appellant filed a notice of appeal to the Court of Appeal from the orders of the primary judge. Attached to the notice of appeal was nine pages of supporting material and an annotated extract of the judgment in QA.
13. Although it is not set out in the appellant’s notice of appeal, the appellant’s appeal is brought under s 37E of the Supreme Court Act1933 (ACT) (Supreme Court Act).
14. In the respondent’s written submissions dated 2 February 2018, the appellant’s grounds of appeal were summarised as follows:
(a)The following people accepted bribes from “Peking men to perjury for torture”
(i)Dr Garside, the appellant’s treating psychiatrist, accepted a bribe of between $700,000 and $2,000,00 from the “China Man”/”Peking men” to torture the appellant;
(ii)The “female judge” in Woden Hospital accepted a bribe of “$200, $200,000”;
(iii)General President Neate accepted a bribe of $400,000;
(iv)A “Female Solicitor” accepted a bribe of $4,000; and
(v)The primary judge accepted a bribe of $2,000.
(b)Five judges and solicitors accepted bribes from China to “perjure” and “torture” the appellant.
(c)In making the PTO in respect of the appellant on 10 August 2017, the “female judge” of the Tribunal took into account the “Peking men’s” belief that the appellant’s inventions are delusional
(d)The finding of fact that the appellant had a mental illness was not reasonably open to the Tribunal on the evidence before it for the following reasons:
(i)The appellant does not have a mental illness and is “healthy normal excellent”
(ii)There was no evidence before the Tribunal that the appellant had a mental illness and the medical evidence before the Tribunal was “full or rubbish or perjury no truth”
(iii)The diagnosis recorded on the authorisation of the appellant’s involuntary detention under the MH Act on 27 July 2017 was “perjury”; and
(iv)Dr Bernadette Murphy’s Tribunal Review Report dated 8 August 2017 was “perjury”.
(e)In relation to evidence of the appellant’s inventions:
(i)The appellant’s invention were the truth and not a delusion;
(ii)The medical evidence before the Tribunal was “full of rubbish of perjury no truth”; and
(iii)Dr Garside accepted a bribe to perjure and torture the appellant.
(f)A report before the Tribunal that indicated the appellant pushed her 81 year old partner is “perjury” because “its only arm touch arm never push by hand and never fell over just for the purpose to pass through” and shows the appellant was being illegally watched by the Chinese.
15. The appellant repeated a number of these claims in her oral submissions, in particular emphasising that she was “healthy, normal, excellent” and that as a result the “treatment order is wrong” and “based on no truth” (T3.15 -3.16, 3.26-3.30, 9.35-9.38, 10.14,12.13 -12.35).
Claim that the appeal is incompetent
16. The respondents filed a notice of intention to respond on 28 November 2017, indicating the respondent’s intention to challenge the Court’s jurisdiction in relation to the notice of appeal filed on 31 October 2017.
17. The respondents filed an application in proceeding on 7 December 2017, which sought the following orders:
1.The Appeal commenced by way of the Notice of Appeal filed on 31 October 2017 be struck out as incompetent
2.In the alternative to Order 1:
a.The appellant file an amended Notice of Appeal within 14 days which particularises the grounds of appeal relied on in support of the appeal, including, in particular, any grounds on which it is claimed that there is an error of law in the order of Justice Mossop; and
b.The appellant file a case summary in accordance with rule 5403(2) of the Court Procedures Rules 2006 (‘Rules’) within 14 days.
3.No orders as to costs.
4.Any other orders that the Court considers
18. The respondent’s application is made pursuant to r 5472 of the Rules, which state:
5472Appeals to Court of Appeal – competency of appeal
(1)A respondent to the appeal may apply to the Court of Appeal at any time for an order striking out the appeal as incompetent
NotePt 6.2 (Applications in proceedings) applies to an application for an order under this rule
(2)The burden of establishing the competency of the appeal is on the appellant
19. The respondent’s application was supported by written submissions filed on 2 February 2018.
20. The respondent noted that the term “incompetent” is not defined in or used elsewhere in the Rules or the Supreme Court Act. The respondent submitted that whether an appeal was incompetent turns on whether the Court has jurisdiction to hear the appeal, including whether the notice of appeal identifies an error in the decision under review and/or the Court has the power to grant the relief sought.
21. The respondent cited the case of Davey v Herbst, Herbst and Bray (No 2) [2012] ACTA 19, heard before Refshauge J sitting as a single judge of the Court of Appeal. Refshauge J at [98] distinguished between an appeal having no prospect of success and one asserting that it is incompetent. At [99], his Honour provided the following examples of incompetence:
An appeal is incompetent if, for example, leave is required and the appellant does not seek such leave: Coles v Wood [1981] 1 NSWLR 723 at 727; cf Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd (No 2) (1990) 21 NSWLR 200 at 210, 214, 218. Similarly, where the court on appeal does not have power to make the orders sought, the appeal is incompetent: Re Bernadette (2011) 249 FLR 294 at 310; [91]–[92]. An appeal will also be incompetent when no appeal lies to the court from the court or tribunal from which the appeal is sought to be taken: Muldoon v Church of England Children’s Homes Burwood [2011] NSWCA 46 at [42]–[43], [65]–[66]. An appeal will be incompetent if brought by a person who was not a party to the proceedings in the court or tribunal from whose decision the appeal is sought to be brought: Underdown (estate of the late Samantha) v Secretary, Department of Education, Employment and Workplace Relations (2009) 50 AAR 54 at 63–5; [25]–[35], 70; [64]. An appeal will also be incompetent if the decision in the court or tribunal from which it is sought to bring the appeal is not the kind of decision (e.g. a judgment or order) from which an appeal lies: R v Steffan (1993) 30 NSWLR 633 at 639–40; McIlvar v Szwarcbord (2008) 186 A Crim R 106 at 112; [23]–[24]. A second appeal where the first has been heard and determined is also incompetent: Burrell v The Queen (2008) 238 CLR 218.
22. Noting that the above was a non-exhaustive list of examples, the respondent cited the Federal Court case of Commissioner of Taxation v Brixius (1987) 16 FCR 359 at 366-376 as supporting the assertion that a failure to identify an error of law in the grounds of appeal may be sufficient to render the appeal incompetent. Their Honours Forster, Fisher and Spender JJ at 366-367 held that:
It follows that in our view the Commissioner has not identified any question of law which affected the Tribunal's decision and in respect of which he contends it has erred. The decision of which he complains arises exclusively out of the application of the correct principles of law to the facts. As such, the matters which he would wish to argue before this Court are matters of fact and degree, and this Court has no jurisdiction.
23. Finally, the respondent cited Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154, where at [20] the court held:
The Court needs to be satisfied that there were relevant questions of law, upon which its jurisdiction to determine the matters in question depended.
24. Four grounds of application were identified by the respondents in their written submissions, with a further ground of application submitted orally at hearing. Those grounds of application are provided under their respective headings below.
No ground of appeal identified from the orders of the primary judge
25. The respondent submitted that the appeal is incompetent because the notice of appeal does not identify any ground of appeal from the orders of the primary judge made on 20 October 2017.
No error of law identified from the orders of the primary judge
26. The respondent submitted that the Appeal is incompetent as the notice of appeal does not identify any error of law in the orders of the primary judge on 20 October 2017.
The court has no jurisdiction to hear the appeal
27. The respondent submitted that to the extent that the notice of appeal discloses a ground of appeal, being a finding of fact that the appellant does not have a mental illness, the Appeal is incompetent as it is a question of fact that this Court has no jurisdiction to hear.
Allegations of bribery
28. The respondent submitted that to the extent that the notice of appeal discloses a ground of appeal, being an allegation that the primary judge accepted a bribe of $2,000, the Appeal is incompetent as it is a bare allegation of fact which does not disclose an appealable error of law that this Court has jurisdiction to hear.
The Psychiatric Treatment Order has expired
29. In oral submission, the respondent noted that since the notice of appeal was filed, the relevant PTO had expired. The respondent submitted that this would render any appeal futile in the sense that the order being appealed from no longer has any affect (T 8.30-8.40).
30. The respondent provided further written submissions on this ground on 10 April 2018. The respondent submitted that:
Having regard to the powers available to the Court on appeal in s 37O of the Supreme Court Act the Court has no power to ‘revoke refuse’ the PTO because the PTO is no longer in force;
Any order related to the expired PTO would require the Court to extend the length of the PTO so that a grant of relief could operate; and
There is no power under s 37O of the Supreme Court Act that allows the Court of Appeal to revive or re-instate an expired order.
31. The respondents drew analogies with authorities dealing with the dismissal of appeals against sentences of imprisonment that have expired. The respondents cited the High Court case of Whan v McConaghy [1984] HCA 22; 153 CLR 631, where the majority of Mason, Murphy, Wilson and Deane JJ held at [10]:
if the term of imprisonment for which the applicant was sentenced had expired, the Court of Appeal lacked inherent jurisdiction to revitalize the expired term by directing that it commence again at some future time.
Response to claim of incompetence
32. The appellant was given an opportunity to respond to the respondents submissions at the hearing on 9 April and repeated earlier remarks about being “healthy, normal, excellent” (T 12.13, 12.27, 12.35). The appellant confirmed that despite the PTO expiring she wished to continue with the appeal.
Consideration
Competency under s 37E
33. Appeals heard under s 37E of the Supreme Court Act are “by way of rehearing”: Calvary Hospital Auxiliary Inc. v D’Amico [2016] ACTCA 39 at [8].
34. In Allesch v Maunz [2000] HCA 40; 203 CLR 172 at [23], the majority held that in relation to appeal by way of rehearing:
the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error…
35. In Omari v Omari [2016] ACTCA 16; 14 ASTLR 23, the Court at [11] quoted with approval Dowsett J’s remarks in Gaundar v Hogan [2014] ACTCA 4 at [5]-[6] that “…error must be shown before an appellate court is called upon to consider the appropriate judgment to be given”.
36. The case law makes clear that a notice of appeal which does not set out “some legal, factual or discretionary error” does not enliven the jurisdiction of the Court of Appeal under s 37E of the Supreme Court Act.
The grounds of appeal
37. The grounds of appeal listed in the notice of appeal are somewhat opaque. This is not necessarily indicative that the grounds are incompetent. The relevant question is whether the grounds of appeal, in whatever form they take, are capable of enlivening the Court’s jurisdiction by allowing the Court to find that the decision of the primary judge is ‘the result of some legal, factual or discretionary error’.
38. It is of note that the relevant PTO has expired. Nevertheless the question remains whether error has or can be identified
39. It is clear that the appellant believes that the decisions of the Tribunal and of the primary judge were wrong in general terms, on the basis that the appellant does not believe she is suffering from a mental health condition and on the basis that the judgment of the primary judge was “perjury”. The appellant further asserts that a wide number of people, including lawyers, judges and doctors involved in the case have accepted bribes from China.
40. Rule 5472(2) of the Rules places the onus of establishing that the appeal is competent on the appellant. I am not satisfied that the appellant has established that the appeal is competent. No legal, factual or discretionary error has been identified.
41. The notice of appeal therefore fails to provide a ground of appeal which enlivens the jurisdiction of the Court of Appeal. It is therefore incompetent under r 5472.
42. The power to strike out an appeal to the Court of Appeal as incompetent pursuant to r 5472 of the Rules may be exercised by a single judge exercising the jurisdiction of the Court of Appeal under s 37J(1)(h) of the Supreme Court Act: Egan-Green v Mclean [2017] ACTCA 28 at [34].
43. The grounds of appeal should be struck out. It follows, there being no remaining grounds of appeal, the appeal should be dismissed.
Orders
44. The orders of the Court are:
1. The appeal is dismissed.
2. No order as to costs.
| I certify that the preceding [44] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Date: 11 April 2018 |
Key Legal Topics
Areas of Law
-
Administrative Law
-
Civil Procedure
Legal Concepts
-
Appeal
-
Jurisdiction
-
Costs
-
Judicial Review