State of New South Wales v Talovic

The Court of Appeal of New South Wales considered an appeal by the State of New South Wales against a District Court judgment in favour of Mr Talovic. The dispute arose from police actions in detaining Mr Talovic under section 22 of the *Mental Health Act 2007* (NSW) and subsequently entering his premises. Mr Talovic had been awarded compensatory and exemplary damages for trespass to land and false imprisonment.

The primary legal issues before the Court of Appeal were whether the prerequisites for detention under section 22 of the *Mental Health Act 2007* were satisfied, particularly the construction of the undefined phrase "mentally disturbed" and whether a subjective test applied to the first prerequisite. Additionally, the court considered whether the police officers had been afforded procedural fairness regarding adverse findings made by the trial judge about their evidence, whether the occupier's licence extended to a search of the premises for the purposes of trespass to land, and whether an award of exemplary damages was justified.

The Court of Appeal found that the trial judge erred in several respects. It determined that the phrase "mentally disturbed" in section 22(1) of the *Mental Health Act 2007* required a subjective assessment by the police officer. The court also found that the police entry onto Mr Talovic's land was not justified by any licence and therefore constituted a trespass. However, it concluded that the award of exemplary damages was not warranted on the facts. The court also ordered a retrial of the claim for compensatory damages for false imprisonment.

Consequently, the Court of Appeal set aside the District Court's order for compensatory damages of $85,000, instead awarding $5,000 for trespass to land and no exemplary damages. The matter was remitted for a retrial on the claim for compensatory damages for false imprisonment, with costs of the trial to be determined by the judge at the retrial. The State was ordered to pay 75% of the costs of the appeal.