TD v State of NSW - [2010] NSWSC 368

CITATION: TD v STATE OF NSW [2010] NSWSC 368

HEARING DATE(S): Monday 15 March 2010

JUDGMENT DATE :
30 April 2010

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: Subject to short minutes of order, there is to be an order that the question of liability based on the plaintiff's pleaded cause of action in wrongful imprisonment is determined in favour of the plaintiff against the defendant.

CATCHWORDS: TORT – WRONGFUL IMPRISONMENT – mentally ill person dealt with by way of a special hearing under s.19 of the Mental Health (Criminal Procedure) Act 1990 – a “limiting term” nominated under s.23 of the Act – whether the limiting term deprived the plaintiff of her right to liberty – s.24 order for plaintiff’s custody an interim order – order made by District Court under s.27 for the plaintiff’s detention “in a hospital” – “hospital” had the meaning prescribed by s.3 of the Mental Health (Criminal Procedure) Act 1990 and s.208 of the Mental Health Act 1990 – plaintiff not detained in a “hospital” as required by order made under s.27 – detention unlawful and infringed her rights – separate question as to liability of State for wrongful imprisonment answered in the plaintiff’s favour against the State.

LEGISLATION CITED: Civil Procedure Act 2005
Crimes (Administration of Sentences) Regulation 2001
Criminal Appeal Act 1912
Limitation Act 1969
Mental Health Act 1990
Mental Health Act 2007
Mental Health (Criminal Procedure) Act 1990
Mental Health (Forensic Provisions) Act 1990
Protected Estates Act 1983

CASES CITED: Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486
Cobbett v Grey (1849) 4 Ex 729
Collins v Downs (Roden J, unreported, 14December 1982)
Cubillo v Commonwealth of Australia [2000] FCA 1084
Cubillo v Commonwealth of Australia [2001] FCA 1213
Mailes v Director of Public Prosecutions & Mental Health Review Tribunal [2006] NSWSC 267
Regina v Adams (2003) 58 NSWLR 1
Regina v AN [2005] NSWCCA 239
Regina v AN (No 2) (2006) 66 NSWLR 523
Regina v Boyle (Mathews, J, 18 September 1992, unreported)
Regina v Deputy-Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58
Regina v Governor of Brockhill Prison; ex parte Evans (No 2) [2000] 3 WLR 843
Regina v Tas (District Court, Keleman DCJ, 1 October 1997, unreported)
Ruddock v Taylor [2005] HCA 48
Watson v Marshall & Cade (1971) 12 CLR 612

PARTIES: TD v
STATE OF NSW

FILE NUMBER(S): SC 289362/08

COUNSEL: P: T A Game SC/A P Naylor
D: G P Craddock SC/S A Beckett

SOLICITORS: P: S O'Connor
D: I V Knight

- 35 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

FRIDAY 30 APRIL 2010

08/289362

TD v STATE OF NEW SOUTH WLAES

JUDGMENT

HIS HONOUR:

(1) Introduction

1 In these proceedings against the State of New South Wales (“the State”), the plaintiff claims damages for wrongful imprisonment and, in the alternative, for assault and/or battery and trespass to the person. The factual…

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.

Keep reading for free

Create a free CaseChat account to read TD v State of NSW and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] NSWSC 368
Decision Date: 30 April 2010

CaseChat Overview and Summary

In TD v State of NSW, the plaintiff, TD, alleged wrongful imprisonment against the State of New South Wales. TD, who is mentally ill, was subject to a special hearing under section 19 of the Mental Health (Criminal Procedure) Act 1990. The court was tasked with determining whether a "limiting term" nominated under section 23 of the Act deprived TD of her right to liberty and whether her detention in a facility not classified as a "hospital" under the Act rendered her detention unlawful.

The legal issues centred on the interpretation of the terms "limiting term" and "hospital" within the context of the Mental Health (Criminal Procedure) Act 1990 and the Mental Health Act 1990. The court had to decide if the limiting term imposed on TD's detention effectively deprived her of her liberty and whether her placement in a facility not recognised as a "hospital" under the Act resulted in an unlawful infringement of her rights. Additionally, the court examined the State's liability for wrongful imprisonment.

The court concluded that the limiting term did not, in itself, deprive TD of her liberty as it was intended to restrict her freedom of movement rather than to detain her. However, the court found that TD's detention in a facility not designated as a "hospital" under the Act constituted an unlawful deprivation of her liberty. The court ruled that TD's detention was unlawful and infringed her rights. Regarding the State's liability for wrongful imprisonment, the court found in favour of TD against the State.

The court ordered the State to compensate TD for the wrongful imprisonment.

Orders