Vorhauer v NSW Minister for Health

[2005] NSWSC 797

CITATION:	Vorhauer v NSW Minister for Health & Anor [2005] NSWSC 797
HEARING DATE(S):	12 July 2005
JUDGMENT DATE :	5 September 2005
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	All paragraphs of summons except one summarily dismissed. Leave granted nunc pro tunc to commence and continue the claim made in that paragraph of the summons, subject to the plaintiff not raising various contentions found to be unsustainable. Direction that no other step be taken in action until Tribunal joined, and a statement of claim filed.

CATCHWORDS:	PRACTICE - application for summary disposal of proceedings under Part 13 rule 5 Supreme Court Rules - proceedings brought by summons - purpose of receiving and examining evidence on such an application - PRACTICE - commencement of proceedings - leave under Felons (Civil Proceedings) Act 1981 to commence action - when granted to person who has committed a serious indictable offence - granting of leave nunc pro tunc - granting of leave to appear or be represented at an application for such leave -form of leave to grant - MENTAL HEALTH - mental hospitals and institutions - transfer of a person imprisoned in a prison to a hospital under section 97 Mental Health Act 1990 - whether time limits for a certificate arising under section 21(4) Mental Health Act 1990 apply to such a transfer - whether such a transfer can consist of a notional change in status of a person who is already in a place which is both a prison and a hospital, without any physical movement of that person - whether the certificates required by section 97 Mental Health Act 1990 can take the form of certificates of two psychiatrists - whether any requirement for psychiatrists to permit writing down of answers given to their questions - whether Chief Health Officer has power to delegate his powers under section 97 Mental Health Act 1990 - whether a certificate for the purpose of section 97 Mental Health Act 1990 must be based solely on personal observations of the medical practitioner who gives it - whether Mental Health Review Tribunal validly vested with jurisdiction to decide matters under section 86(1) Mental Health Act 1990 - ADMINISTRATIVE LAW - particular persons and bodies - Mental Health Review Tribunal - whether The University of Wollongong v Metwally (1984) 158 CLR 447 prevents that Tribunal from giving decisions - TORTS - assault - whether Theophanus v The Herald and Weekly Times (1994) 182 CLR 104 bears upon any such claim
LEGISLATION CITED:	Anti-Discrimination Act 1977 Commonwealth Constitution Crimes (Administration of Sentences) Act 1999 Crimes Act 1900 Felons (Civil Proceedings) Act 1981 Health Legislation Amendment Act 2004 Judiciary Act 1903 (Cth). Justices Act 1902 Mental Health (Criminal Procedure) Act 1990 Mental Health Act 1990 Racial Discrimination Act 1975 (Cth) Supreme Court Rules 1970
CASES CITED:	Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 Jol v State of New South Wales (1998) 45 NSWLR 283 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 Potier v Magistrate Moore & Anor [2004] NSWSC 1131 The University of Wollongong v Metwally (1984) 158 CLR 447 Theophanus v The Herald and Weekly Times (1994) 182 CLR 104 Viskauskas v Nilind (1983) 153 CLR 280
PARTIES:	Florence Amelia Vorhauer - Plaintiff NSW Minister for Health - First Defendant NSW Minister for Justice - Second Defendant
FILE NUMBER(S):	SC 1383/05
COUNSEL:	Appeared in person - Plaintiff B Baker, solicitor - Defendants
SOLICITORS:	Appeared in person - Plaintiff State Crown Solicitor's Officer - Defendants

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

5 SEPTEMBER 2005

1383/05 FLORENCE AMELIA VORHAUER v MINISTER FOR HEALTH & ANOR

JUDGMENT

HIS HONOUR:

Nature of the Application

1 This is an application brought by the defendants in litigation. They seek that the plaintiff’s Summons be struck out pursuant to the Felons (Civil Proceedings) Act 1981, and in the alternative that the Summons be stayed or dismissed generally pursuant to Part 13 rule 5 of the Supreme Court Rules 1970.

Background to the Plaintiff’s Litigation

2 After a four-week trial in the District Court at Tamworth, the plaintiff was found guilty of three criminal charges. The first was using an offensive weapon to resist arrest, namely a Molotov cocktail. The second was of maliciously wounding a named policeman with intent to prevent lawful apprehension. The third was of maliciously wounding a different policeman with intent to prevent lawful apprehension. The first offence was one which could attract a maximum penalty of 12 years imprisonment. The second and third offences were ones which could attract a maximum penalty of 25 years imprisonment.

3 On 18 December 2003 the plaintiff was sentenced to a total of four years imprisonment, with a two year non-parole period.

4 On 24 December 2003 the plaintiff filed a Notice of Intention to Appeal. A Notice of Appeal was lodged with the Court of Criminal Appeal on 21 June 2004.

5 In the early part of 2004 the plaintiff was imprisoned at Mulawa Correctional Centre (“Mulawa”). However, on 26 August 2004 she was transferred to the hospital at Long Bay Prison. A few days later, some documentation was brought into existence which purported to invoke section 97 Mental Health Act 1990 (“MHA”). That section provides:

“(1) If it appears to the Chief Health Officer on the certificates, in the form set out in Schedule 3, of 2 medical practitioners, one of whom is a psychiatrist, that a person imprisoned in a prison is a mentally ill person, the Chief Health Officer may order that the person be transferred to a hospital.
(2) The Chief Health Officer must notify the Tribunal in writing of any order made under this section.”


I say, “purported to invoke section 97” because the plaintiff has presented an argument before me, which it is not necessary to decide for the purpose of the present application, that section 97 was not validly invoked.

6 From the time of her transfer to Long Bay until 10 May 2005, when she was returned to Mulawa, the plaintiff was housed in the prison hospital at Long Bay. Her return to Mulawa followed the execution, on 5 May 2005 of documentation purporting to be under section 100A MHA, which relates to some circumstances in which a person can be transferred from a hospital to a prison. It appears from the certificate that the person issuing it was of the view that the plaintiff had ceased to be a mentally ill person or to be suffering from a mental condition for which treatment was available in a hospital.

7 In purported compliance with section 97(2) MHA, the Mental Health Review Tribunal (“MHRT”)was notified of the section 97 order made on 27 August 2004. The proceedings relating to the plaintiff in the MHRT were allotted file number F 1054. The MHRT held a hearing, on 23 September 2004, which was restricted to a question which the plaintiff raised, of whether the MHRT had jurisdiction over her. At the conclusion of that hearing, the MHRT reserved its decision.

8 On 1 October 2004 the plaintiff’s appeal to the Court of Criminal Appeal came on for hearing. The plaintiff appeared in the Court of Criminal Appeal for herself that day. She sought an adjournment, on the basis that she had not had adequate time or facilities to prepare the appeal, and also to give her time to file an application in the High Court of Australia. The Court did not accept that her wish to file an application in the High Court justified an adjournment. However, the Court directed that the matter be stood out of the list, to be re-listed soon after the determination of the MHRT. Of its own motion, the Court also gave a direction that when the appeal was next listed before the Court the parties should place before the Court such material as was available on the issue of the plaintiff’s fitness and capacity to conduct the appeal.

9 The plaintiff’s appeal to the Court of Criminal Appeal has still not been determined.

10 On 6 October 2004 the MHRT published its decision on jurisdiction. That decision was:

“As a person transferred lawfully from prison into hospital under the provisions of section 97 of the Mental Health Act 1990 the Tribunal has jurisdiction to review the case of [the plaintiff] pursuant to section 86(1) of that Act, and to make a recommendation to the prescribed authority as to her continued detention, care and treatment in that hospital.”

11 On 7 October 2004 the MHRT conducted a hearing concerning what recommendation, if any, it should make as to the continued detention, care and treatment of the plaintiff. The MHRT published its determination on that question on 19 October 2004. Its recommendation was:

“That the current arrangements for [the plaintiff]’s detention as a forensic patient at the Long Bay Prison Hospital should continue to apply.”

12 At each of the hearings of the MHRT which related to the plaintiff, Mr Duncan Chappell, the President of the Tribunal, presided.

These Proceedings

13 On 8 February 2005 the plaintiff commenced these proceedings by filing a Summons and affidavit. The Summons seeks the following relief:

“1. That the decision by the Mental Health Review Tribunal No F 1054 pursuant to Section 86(1) Mental Health Act 1990 No 9, be set aside as being invalid pursuant to the order of the High Court in The University of Wollongong v Metwally (1984) 158 CLR 447, that Tribunals cannot make enforceable orders as law pursuant to section 25 Judiciary Act 1903 .
2. That the decision by the Mental Health Review Tribunal on 23/9/04, be set aside as unlawful and invalid, having seen no compliance with section 97 Mental Health Act 1990 No 9, as an authority, (or Schedule one forensic patient authority of the said Act).
3. That the Mental Health Review Tribunal President Duncan Chappell, make available to the Appellants Possession by service, all transcripts, and documents pertaining to the Tribunal’s decision in Matter F 1054, so that the Appellant may properly prepare an appeal in this matter.
4. That the Appellant have unrestricted access to the records kept by Justice Health on the Appellant pursuant to Section [blank] Mental Health Act 1990 No 9.
5. That the Appellant be given the rights of Section 17(5) Mental Health (Criminal Procedure) Act 1990 No 10.
6. That the Minister for Justice comply with Section 24 Crimes (Administration of Sentences) Act 1999 and return the inmate to Mulawa Correctional Centre, as stated in the District Court of NSW in a Warrant dated 27/6/03.
7. That the Minister for Justice comply with Section 73 Crimes (Administration of Sentences) Act 1999 and Section 30 Mental Health Act 1990 No 9, and cease enforced drugging by assault and wounding (not authorised by the Mental Health Tribunal on the 23/9/04) as a crime against the Appellant pursuant to Section 298 Mental Health Act 1990 , of a drug that is inappropriate for an elderly 64 year old diabetic woman, whose life is not in danger, nor a danger to herself or anyone else, (and never has been), but whose health is being endangered by the side effects of a drug (Risperidone) that is not “Medication” as ordered by Section 300 Mental Health Act 1990 , but listed as a very toxic poison in the Australian Poison’s Register as s. 4 poison; the use of such restricted criminal drugs without the consent of the Appellant by means of bashing and wounding being in law, torture of a prisoner, solely for holding ideas not expressed to psychiatrists but in Court proceedings, that are held as lawful pursuant to the Constitution, by the High Court decision of Theophanus v The Herald and Weekly Times (1994) 182 CLR 104, and which the High Court ruled the states are SUBJECT to pursuant to Clause 5 preamble Constitution.
8. That the Minister for Justice produce the Appellant to the Court for examination by a jury, to determine if the Appellant is mentally ill, as ordered by Parliament in Section 428Z Crimes Act 1900 and Section 11 Mental Health (Criminal Procedure) Act 1990 No 10, to decide the matter of mental illness.
9. That the Appellant be awarded damages for assault and pain and suffering, as applies in law for the unlawful assault and wounding and hospitalisation for a diagnoses that cannot be supported as ideas of mental illness, by the Constitution as ruled by the High Court in Theophanous v The Herald and Weekly Times (1994) 182 CLR 104.”

14 The Summons is one in which the respondent to the present application refers to herself variously as “the appellant” and “the applicant”. I will refer to her in these reasons as “the plaintiff”.

15 There are two “respondents” to the Summons – the NSW Minister for Health, and the NSW Minister for Justice. Both of those respondents appeared with common representation.

16 The Notice of Motion of the defendants came on for hearing before me on 12 July 2005. At that time the plaintiff was still in custody at Mulawa, and was brought to the Court for the purpose of conducting the hearing. She represented herself on that occasion.

Present Situation Concerning the Plaintiff’s Imprisonment

17 The plaintiff’s non-parole period expired on 3 May 2005, but she was not released on parole at that time because the Parole Board was not satisfied about the arrangements for her accommodation. However, after some different arrangements for accommodation were proposed, the Parole Board, on 7 July 2005, approved her release on parole no later than 14 July 2005. A Court Escort Security Unit form relating to the plaintiff’s appearance in Court before me bore the notation “due out 14 July 2005”. Thus, at the time of delivery of these reasons for the judgment the plaintiff will have been released on parole, although her sentence will still be running.

The Felons (Civil Proceedings) Act

18 The Felons (Civil Proceedings) Act 1981 provides;

“4 Leave to sue required for persons convicted of serious indictable offences
A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application.
5 Grant of leave
A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.”

19 The term “serious indictable offence” is defined in section 21 of the Interpretation Act 1987 as follows:

“ serious indictable offence means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.”

20 Each of the charges of which the plaintiff was convicted is, therefore, a serious indictable offence, notwithstanding that the punishment actually inflicted on her was imprisonment for a term of less than 5 years.

21 I mention that section 7 Felons (Civil Proceedings) Act 1981, provides:

“7 Right of appearance
At the hearing or determination of an application or appeal under this Act, except by the leave of the court to which the application or appeal is made:
(a) the applicant or appellant, as the case may be, is not entitled to appear in person, and
(b) the person who would, if the proceedings to the institution of which the application or appeal relates were instituted, be the defendant in those proceedings, is not entitled to appear or be represented.”

22 Arrangements had been made, without any reference to me, for the plaintiff to be brought from Mulawa to Court for the purpose of the hearing on 12 July 2005. The representative of the defendants raised no objection to the plaintiff appearing. That may well have been because the Notice of Motion sought orders on the basis of Part 13 rule 5 Supreme Court Rules 1970, as well as pursuant to the Felons (Civil Proceedings) Act 1981. My attention was not directed at all to section 7. To the extent necessary, I grant leave to the plaintiff nunc pro tunc to appear at the hearing on 12 July 2005. Nor did the plaintiff raise any objection to the defendants appearing and being represented at the hearing before me. To the extent necessary, I grant leave to the defendants nunc pro tunc, to appear and be represented at the hearing on 12 July 2005.

23 The plaintiff contended that section 4 Felons (Civil Proceedings) Act 1981 did not apply to her, because she had instituted an appeal against her conviction, which had not been determined, and section 107 Justices Act 1902 had the effect of imposing a stay on her conviction. Section 107 Justices Act 1902 is concerned with appeals to the Supreme Court from certain decisions made by a Magistrate. It does not apply to appeals to the Court of Criminal Appeal, from a conviction by a jury or a sentence imposed by a judge in proceedings in the District Court. The submission that section 107 Justices Act 1902 has the effect that the plaintiff was not subject to the Felons (Civil Proceedings) Act 1981 at the time she filed these proceedings is not only mistaken, it is unarguable.

24 The present proceedings were commenced without the plaintiff seeking or obtaining any leave. However, if a person commences proceedings in breach of section 4, as the plaintiff has done, those proceedings are not a nullity – rather, they suffer from an irregularity, which the Court can, in an appropriate case, cure by a grant of leave nunc pro tunc: Jol v State of New South Wales (1998) 45 NSWLR 283 at 290. To the extent that Potier v Magistrate Moore & Anor [2004] NSWSC 1131 at [16] decides otherwise, it cannot be followed. I note that the decision of the Court of Appeal in Jol v State of New South Wales was not cited to the learned judge who decided Potier v Magistrate Moore.

25 The principle which guides a court in deciding whether to grant leave nunc pro tunc was stated by Sheller JA (with whom Beazley JA and Sheppard AJA agreed) in Jol v State of New South Wales (1998) 45 NSWLR 283 at 290 as follows:

“The purpose of the Act, as appears from section 5, is to enable the court to supervise such proceedings by ensuring that they do not go forward to trial if they amount to an abuse of process or there is no prima facie ground for them.”

26 In recognition of that state of affairs, the applicants put at the forefront of their submissions the claim that the Summons be stayed or dismissed generally pursuant Part 13 rule 5 Supreme Court Rules 1970. That rule provides:

“(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) no reasonable cause of action is disclosed,
(b) the proceedings are frivolous or vexatious, or
(c) the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.
(2) The Court may receive evidence on the hearing of an application for an order under subrule (1).”

27 The principles upon which the Court stays or dismisses proceedings under that rule are identical to those on which the Court operates under its inherent jurisdiction in deciding whether to stay or dismiss proceedings which are an abuse of the process of the Court as being frivolous or vexatious: Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 944. In exercise of that jurisdiction, the Court, in a pleaded case, can look not only at the Statement of Claim, but also at evidence (Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937), as Part 13 rule 5(2) expressly provides. When a claim is brought by Summons, likewise, evidence may be looked at for the purpose of deciding whether to exercise the power under Part 13 rule 5. The purpose of looking at that evidence is, however, to see whether the claim for the relief which is sought in the Summons is an abuse of process. It is not to sift through the evidence to see whether some relief, other than that claimed in the Summons, could be applied for without there being an abuse of process.

28 Consistently with her submission that she was not bound by the Felons (Civil Proceedings) Act 1981 the plaintiff did not actually apply for leave under that Act. However, the defendants submitted, and I accept, that in deciding whether to summarily dispose of the proceedings I should take into account whether leave should be granted, and to the extent (if any) that it is appropriate, grant it. The defendants submitted that no leave at all should be granted.

The Plaintiff’s Adjournment Application

29 The plaintiff applied for an adjournment of the hearing before me, to enable her to seek legal representation. It was in connection with that application for an adjournment that I proceeded to examine the merits of the defendants’ claim for summary dismissal of the proceedings. I did this on the basis that, if nothing could fairly be said to prevent the Summons (or particular paragraphs in it) from being summarily dismissed, there would be no point in granting the adjournment application. The defendants’ contention was that the entire proceedings were an abuse of process. To the extent that that contention was clearly right, it would only be compounding the abuse to permit the proceedings to be adjourned. Conversely, in connection with the adjournment application the defendants put everything they wished to put on the question of whether the Summons, or individual paragraphs in it, should be summarily dismissed. To the extent that those arguments would not prevail, there was no need for the plaintiff to have an adjournment. In deciding to proceed this way, I also took into account that the plaintiff’s contention that she was not someone to whom section 4 of the Felons (Civil Proceedings) Act 1981 applied by reason of section 107 Justice Act 1902, was unarguable.

30 I shall proceed to consider the various paragraphs of the Summons one by one.

Paragraph 1

31 Section 86(1) Mental Health Act 1990 provides:

“(1) The Tribunal must, as soon as practicable after a person is transferred to a hospital under section 97 or 98:
(a) review the case of the person, and
(b) make a recommendation to the prescribed authority as to the person’s continued detention, care or treatment in the hospital.”

32 Both the preliminary decision of the Tribunal on 6 October 2004 concerning jurisdiction, and its decision of 19 October 2004 were made under section 86(1).

33 The University of Wollongong v Metwally (1984) 158 CLR 447 concerned a decision made by the Tribunal established under the Anti-Discrimination Act 1977 (NSW), which upheld complaints of racial discrimination which Mr Metwally made against the university. After Mr Metwally had lodged the complaints which were the foundation of the jurisdiction of the Tribunal, but before the Tribunal gave its decision, the High Court held, in Viskauskas v Nilind (1983) 153 CLR 280 that, pursuant to section 109 of the Constitution various provisions of the Anti-Discrimination Act 1977, were invalid because they were inconsistent with the Racial Discrimination Act 1975 (Cth). Very soon after that decision of the High Court, the Federal Parliament passed the Racial Discrimination Amendment Act 1983. It amended the Racial Discrimination Act 1975 (Cth) by a provision which stated that the Commonwealth legislation

“is not intended, and shall be deemed never to have been intended, to exclude or limit the operation of a law of a State or Territory that furthers the objects of the Convention and is capable of operating concurrently with this Act.”

The “Convention” there referred to was the International Convention on the Elimination of All Forms of Racial Discrimination, which provided the constitutional foundation upon which the Racial Discrimination Act 1975 (Cth) rested. It was only after that amending legislation had come into effect that the Tribunal published its decision in favour of Mr Metwally. The university appealed against that decision to the Court of Appeal of the Supreme Court of New South Wales on numerous grounds, and Mr Metwally cross-appealed seeking larger damages. Part of those appeal proceedings were removed into the High Court pursuant to section 40 Judiciary Act 1903 (Cth). The part removed was a part which was understood to raise the following questions:

“(i) whether the enactment of the provisions of section 3 of the Racial Discrimination Amendment Act 1983 was beyond the power of the Parliament of the Commonwealth in so far as those provisions purport to have retrospective operation or effect for reason that in purporting to do so they deny the operation of section 109 of the Constitution upon an inconsistency which prior to their enactment existed between the Racial Discrimination Act 1975 and the relevant provisions of the Anti-Discrimination Act 1977;
(ii) whether, in the event of an affirmative answer to (i) above, the provisions of Part II of the Anti-Discrimination Act were invalid prior to the enactment of the Racial Discrimination Amendment Act 1983 by virtue of their inconsistency with the Racial Discrimination Act 1975 and the operation of section 109 of the Constitution.”

(Through a proofreading error, the questions were quoted at 158 CLR 453, 481 and 487 omitting the word “Amendment” from the title of the 1983 Act in question (i).)

34 Those questions were found, upon examination in the High Court, not to be happily phrased. The order of the High Court (set out at 158 CLR 487-488) did not answer the first question which had been removed, and answered the second question which had been removed as follows:

“The provisions of Pt II of the Anti-Discrimination Act 1977 (NSW) were invalid prior to the enactment of the Racial Discrimination Amendment Act 1983 (Cth) by virtue of their inconsistency with the Racial Discrimination Act 1975 (Cth) and the operation of s 109 of the Constitution, and the enactment of the Racial Discrimination Amendment Act 1983 did not give those provisions a valid operation prior to the date of that enactment.”

35 As well, the Court made a declaration “… that the Tribunal had no power or jurisdiction to inquire into or make decisions or orders in respect of either of the complaints lodged by Mr Metwally against the University of Wollongong”. That order also provided for the costs of the proceedings.

36 The order of the High Court in The University of Wollongong v Metwally (1984) 158 CLR 447, which is what, read literally, paragraph 1 of the Summons invokes, disposes of nothing but the particular case which was before the High Court, and binds no one but the parties to that case. Thus, that order does not, of itself, have any effect on the validity of a decision of the MHRT.

37 However, I will not proceed by reading paragraph 1 of the Summons in this literal way, but rather treat it as seeking to invoke the principle established by the High Court in The University of Wollongong v Metwally (1984) 158 CLR 447, which binds all Australian courts.

38 The decision in The University of Wollongong v Metwally (1984) 158 CLR 447 was given by a majority of 4:3. The nub of the decision of those in the majority (Gibbs CJ, Murphy, Brennan and Deane JJ) was that, once section 109 of the Constitution had operated to invalidate certain provisions of the Anti-Discrimination Act 1977, the Federal Parliament could not, by later legislation, cut down the operation which section 109 had already had. Because section 109 operated by making inconsistent State legislation inoperative while the inconsistency existed, rather than void it, it was open to Federal Parliament in at least some circumstances, by legislation, to declare its intention not to cover some particular field of legislation, so that thenceforth section 109 would not operate to render invalid State legislation within that same field. However that same effect could not be achieved retrospectively. To decide otherwise would undermine the paramountcy of the constitutional provision in section 109.

39 Thus, the principle underlying the decision in The University of Wollongong v Metwally (1984) 158 CLR 447 can result in the invalidation of a decision of a tribunal established under State law (as the MHRT is) or a conferring of jurisdiction by a State law on such a tribunal, only when there is an inconsistency between the legislation establishing that tribunal, or conferring that jurisdiction, and a Commonwealth law.

40 It appears that the Commonwealth law which paragraph 1 of the Summons puts forward as filling that role is section 25 Judiciary Act 1903 (Cth). It says:

“The process of the High Court shall run, and the judgments and orders of the High Court shall have effect and may be executed, throughout the Commonwealth.”

41 Section 25 appears in Part III of the Judiciary Act 1903, which deals with the jurisdiction and powers of the High Courts generally. It is unarguable that there is any conflict between section 25 Judiciary Act 1903, and the provisions of the Mental Health Act 1990 (NSW) relating to the operations of the MHRT, which could result in the invalidity of any decision of that Tribunal through the operation of the principle on which the High Court’s decision in The University of Wollongong v Metwally (1984) 158 CLR 447 was reached. When the proposition is unarguable, there is no point in allowing an adjournment to enable it to be further considered. Paragraph 1 of the Summons should be summarily dismissed.

Paragraph 2

42 The defendants’ submission in relation to this paragraph is that it

“… seeks an order that the MHRT be set aside as invalid for failing to comply with s 97 of the Mental Health Act 1990 . There is no basis for the assertion that the MHRT failed to comply with s 97.”

followed by a reference to some submissions relating to paragraph 7 of the Summons.

43 The plaintiff’s affidavit is long, repetitive, and in many respects confused. However, her allegations can be distilled from it.

44 Dr Michael Guiffrida is a visiting consultant psychiatrist with Corrections Health. He provided a pre-sentence report in connection with the sentencing of the plaintiff, which expressed some views with which the plaintiff disagreed.

45 On 18 May 2004 Dr Guiffrida gave a certificate under Schedule 3 of the Mental Health Act 1990 relating to the plaintiff. A Schedule 3 certificate is the certificate provided for in section 97 Mental Health Act 1990. It requires the medical practitioner or psychiatrist who gives it to certify that he or she has, and separately from any other medical practitioner, personally examined a named prisoner, on a particular date, and that he or she is of the opinion that the prisoner is (so far as certificates under section 97 go) mentally ill. The certificate requires the giver to state the grounds for that opinion, and any other relevant information.

46 One of the plaintiff’s complaints is that that certificate was acted upon at a time when it was out of date. The basis she identifies for that complaint is section 21(4) Mental Health Act 1990. That subsection provides:

“A person may not be admitted to or detained in a hospital on a certificate:
(a) certifying that the person is a mentally ill person—unless the person is so admitted within 5 days after the day on which the certificate is given, or
(b) certifying that the person is a mentally disordered person—unless the person is so admitted within 1 day after the day on which the certificate is given.”

47 Read in isolation, section 21(4) might appear to provide some support for the plaintiff’s contention that the certificate was stale. However, it is not to be read in isolation. The context in which it occurs is in Part 2 of the MHA, relating to involuntary admission to hospitals. Earlier provisions in section 21 state:

“(1) A person may be taken to and detained in a hospital (other than an authorised hospital) on the certificate of a medical practitioner or an accredited person:
(a) who has personally examined or personally observed the person immediately before or shortly before completing the certificate, and
(b) who is of the opinion that the person is a mentally ill person or a mentally disordered person, and
(c) who is satisfied that no other appropriate means for dealing with the person are reasonably available, and that involuntary admission and detention are necessary, and
(d) who is not a near relative of the person.
(2) The certificate is to be in the form set out in Part 1 of Schedule 2.”

48 Thus, in its context, section 21(4) is not concerned with the transfer of a person imprisoned in a prison to a hospital. Further, the certificate to which section 21(4) refers is the certificate described in section 21(2) MHA. The form of that certificate, found in Part 1 of Schedule 2 MHA, covers ground which is in some respects similar to the ground covered by a certificate under Schedule 3, but also has significant differences to the certificate under Schedule 3. It is not reasonably open to argument that the time restrictions set out in section 21(4) apply to a certificate given under section 97.

49 Another basis on which she challenges the transfer is that there was no submission made to the Chief Health Officer seeking an order for her transfer, as necessarily must happen if section 97(1) is to operate.

50 A further basis upon which she challenges her transfer from Mulawa to Long Bay is that it is not lawful to have such a transfer for a woman to an all-male prison. She was not able to identify by reference to what legal standard such a transfer was unlawful. The power to transfer in section 23 Crimes (Administration of Sentences) Act 1999 seems to be perfectly general. In light of the conclusion I have come to concerning paragraph 2 of the Summons, it is not necessary to decide anything more about this particular point.

51 Yet another complaint which the plaintiff makes about her transfer to Long Bay is that there was only one certificate under section 97 prior to her transfer, not the two certificates which section 97 requires. On the material before me, that contention appears correct.

52 However, the defendants do not seek to justify the transfer of the plaintiff to Long Bay Prison Hospital as being a transfer under section 97. Rather, they say, it was a transfer between two prisons, pursuant to section 23 Crimes (Administration of Sentences) Act 1999. The following provisions of that Act are relevant:

3(1) In this Act: …
Commissioner means the Commissioner of Corrective Services
…
23 Transfers from one correctional centre to another
(1) The Commissioner may order that an inmate be transferred from one correctional centre to another:
(a) because the correctional centre is being or is about to be repaired, altered, enlarged or rebuilt, or
(b) because of an outbreak or threatened outbreak in the correctional centre of an infectious disease, or
(c) because the correctional centre has ceased or is about to cease to be a correctional centre, or
(d) because the correctional centre is overcrowded, or
(e) because inmates in the correctional centre need to be separated in compliance with the requirements of the regulations, or
(f) because of any other reason specified in the order.
(2) In relation to an inmate who is under the age of 18 years, such an order may not be made on a ground referred to in subsection (1) (d), (e) or (f) so as to transfer the inmate from a juvenile correctional centre to a correctional centre that is not a juvenile correctional centre.
24 Transfers to hospital
(1) The Commissioner may order that an inmate be transferred:
(a) to a hospital (including a hospital that is or forms part of a correctional centre or correctional complex), or
(b) to some other place specified in the order,
if of the opinion that it is necessary or desirable for the inmate to receive medical attention there.
…
232(3) The Commissioner may delegate to any person any of the Commissioner’s functions, other than this power of delegation.”

53 When there is no live issue concerning whether the plaintiff’s transfer to Long Bay on 26 August 2004 was pursuant to section 97 MHA, it would be an abuse of process to have litigation about the reasons why that transfer was not pursuant to section 97 MHA. It appears that there probably was an order which purported to be made under section 23 Crimes (Administration of Sentences) Act 1999 for the transfer of the plaintiff from Mulawa to the Long Bay Hospital Area 1 Correctional Centre. That document was in evidence before the MHRT, and became Exhibit 6 there, but is not in evidence before me. The MHRT’s determination of 6 October 2004 says, at page 2:

“Attached to the transfer order were to further documents – one, headed Notification of Medical Appointments and Transfers, indicated that [the plaintiff] required transfer to B Ward East at Long Bay Hospital, while the other was the original schedule completed by Dr Guiffrida on 18 May 2004.”

54 The reasons of the Tribunal go on to described what happened next:

“Upon her admission to B Ward East [the plaintiff] was assessed by Dr Richard Furst, a consultant psychiatrist, and by Dr Rosalind Foy, a psychiatry registrar. Dr Furst completed a schedule 3 certificate under the Act in regard to [the plaintiff] indicating that in his opinion she was a mentally ill person within the meaning of the Act … Dr Furst’s certificate was dated and signed 26 August 2004. On the next day, 27 August, Dr Foy also completed a schedule 3 certificate in regard to [the plaintiff].”

55 On 27 August 2004 Dr Richard Matthews, who signed over the title “Chief Executive Officer” wrote to Dr Greg Stewart, the Chief Health Officer of the NSW Health Department. His letter set out details concerning the plaintiff, and said

“Attached are two Schedule 3’s separately completed by Medical Practitioners one of whom is a psychiatrist. These indicate the abovenamed person has a mental illness as defined in Schedule 1 of the Mental Health Act 1990 AND is a mentally ill person under section 97(1) of the Mental Health Act 1990 . It is recommended that you make an order under section 97(1).”


The letter identified the psychiatrist in question as Dr Richard Furst, and the medical officer in question as Dr Rosalind Foy. The section 97 order which was recommended related to:

Current location	B Ward East
Transfer to	B Ward East

56 On 30 August 2004 a certificate in the following form was executed:

“ MENTAL HEALTH ACT 1900
TRANSFER OF MENTALLY ILL PRISONER TO HOSPITAL
I, Dr Michael Paton, Deputy Director, Clinical Policy and Planning, Centre for Mental Health, acting under delegation from the Chief Health Officer of the NSW Department of Health and pursuant to section 97(1) of the Mental Health Act 1990, DO ORDER that Florence Amelia Vorhauser being a person imprisoned in Long Bay Correctional Centre, be transferred to a hospital as defined in the Mental Health Act, 1990, as it appears to me, acting on the certificates of -
(1) Dr Richard Furst, Psychiatrist, and
(2) Dr Rosalind Foy, Medical Practitioner
that the person is a mentally ill person within the meaning of the Act.
Dated: 30th August 2004

[illegible signature]

Deputy Director, Clinical Policy and Planning

Centre for Mental Health

57 Also on 30 August 2004 Dr Paton wrote to the Registrar of the MHRT notifying the MHRT, pursuant to section 97(2) MHA, of the order he had made, and enclosing copies of the order and associated documentation.

58 Pausing there in the chronology, there are several criticisms which the plaintiff makes of this section 97 MHA order. One is that both Dr Foy and Dr Furst were psychiatrists. She submits that section 97 MHA requires one of the certificates to be from a medical practitioner, and that means from a general practitioner. That proposition has no substance. The class of “medical practitioners” includes the class of “psychiatrist” – a psychiatrist is a specialised type of medical practitioner. The purpose of section 97 is to ensure that a person imprisoned in a prison cannot be transferred to a hospital unless a person qualified in psychiatry has given the appropriate certificate, and another medical practitioner (who might or might not be qualified in psychiatry) has also given such a certificate. Subsidiary allegations which the plaintiff makes (to the effect that Dr Foy has committed a criminal offence under section 297 MHA, and also the crime of creating a false instrument contrary to the Crimes Act 1900 in consequence of having described herself as a “medical practitioner” in the schedule 3 certificate) are likewise unarguable.

59 Another basis upon which the plaintiff attacks the certificates of Doctors Foy and Furst is that each of those doctors refused, in the interviews preceding the issuing of the certificates, to permit her to write the answers down which she gave to their questions, so that those questions and answers could be submitted to a jury. I shall assume without deciding that Doctors Foy and Furst acted in the way she alleges. She alleges that that conduct vitiates the certificates, by reason of section 428Z Crimes Act 1900 and section 11 Mental Health (Criminal Procedure) Act 1990.

60 Section 428Z Crimes Act 1990 was brought into the Crimes Act 1900 by Act No 180 of 1983. Its opening words were:

“Where, upon the trial of a person charged with an offence, a question is raised as to whether the person was, at the time of commission of the offence, mentally ill …”

In that situation, section 428Z required the Court to explain certain matters to the jury. The section never had application to the situation in which Doctors Foy and Furst interviewed the plaintiff, where she had already been tried and convicted. In any event, section 428Z was repealed by Act No 11 of 1990.

61 Section 11 Mental Health (Criminal Procedure) Act 1990 deals with the manner in which the question of a person’s unfitness to be tried for an offence is to be determined. It likewise has no application to the situation in which Doctors Foy and Furst interviewed the plaintiff. This attack on their certificates, based on section 428Z Crimes Act 1900 and section 11 Mental Health (Criminal Procedure) Act 1990, is unarguable.

62 Another criticism she makes is that it is a consequence of the definition of “forensic patient” in Schedule 1 to the MHA that a decision to detain someone in hospital can be made only by a judge. The definition of “forensic patient” in Schedule 1 to the MHA is:

“(a) a person who is detained in a hospital, prison or other place, or released from custody subject to conditions, pursuant to an order under section 10 (3) (c), 14, 17 (3), 25, 27 or 39 of the Mental Health (Criminal Procedure) Act 1990 or section 7 (4) of the Criminal Appeal Act 1912 (including that subsection as applied by section 5AA (5) of that Act), or
(b) a person who is detained in a hospital pending the person’s committal for trial for an offence or pending the person’s trial for an offence, or
(c) a person who has been transferred to a hospital while serving a sentence of imprisonment and who has not been classified by the Tribunal as a continued treatment patient.”

63 Paragraph (c) of that definition includes a person who has been transferred to a hospital pursuant to a section 97 order. If a valid section 97 order is made, the person in respect of whom it is made becomes a “forensic patient” without any intervention or decision by a judge. This particular attack on the section 97 order is likewise unarguable.

64 A further attack upon the section 97 order is that it was not made by the Chief Health Officer as section 97 requires, but rather by someone who purported to act as his delegate. Section 287B MHA was inserted into the MHA by Act No 37 of 2004, the Health Legislation Amendment Act 2004, which was assented to on 15 June 2004 and commenced on 1 August 2004. Section 287B provides:

“287B Chief Health Officer may delegate functions
(1) The Chief Health Officer may delegate to an authorised person any of the functions of the Chief Health Officer under this Act, other than this power of delegation.
(2) A delegate may sub-delegate to an authorised person any function delegated by the Chief Health Officer if the delegate is authorised in writing to do so by the Chief Health Officer.
(3) In this section:
authorised person means:
(a) a member of staff of the Department of Health, or
(b) any person (or person belonging to a class of persons) prescribed by the regulations.”

65 Ms Baker, who appeared for the defendants, submitted at the hearing that I should act on the presumption of regularity concerning public or official acts, even though there was no separate proof of a delegation of authority from Dr Stewart to Dr Paton. After the hearing, and with the consent of the plaintiff, the defendants tendered a copy of an instrument of delegation dated 20 August 2004 whereby Dr Stewart (who signed over the description “Chief Health Officer”) delegated “the performance of the functions of the Chief Health Officer under sections 97 and 98 of the Mental Health Act 1990” to two officers, one of whom was the “Deputy Director, Clinical Policy and Planning, Centre for Mental Health”. In these circumstances there is no arguable case to be put concerning whether Dr Paton had no authority to make the section 97 order, or to notify the MHRT of the making of it.

66 Another submission which the plaintiff makes is that section 97 MHA does not permit the Chief Health Officer to delegate his authority at all. In light of the amendment of the MHA to include section 287B, and section 287B having commenced prior to 30 August 2004, that argument is unsustainable.

67 Another complaint which she makes is that the section 97 order was invalid because she had been transferred to the prison hospital at Long Bay on 26 August 2004, and remained there continually until well after the order of 30 August 2004 was made. The Schedule 3 certificates upon which the section 97 order was based were given after she had been transferred to Long Bay, and were based on medical interviews conducted at Long Bay. The MHRT, in its decision of 6 October 2004 at page 8, summarised this argument as follows:

“Those involved in [the plaintiff’s] care and treatment are of the view that she does suffer from such an illness and have acted in her best interests to seek treatment for her at Long Bay Prison Hospital. They have done so, however, in somewhat indirect and possibly unlawful manner. Thus instead of utilising from the outset the provisions of section 97 of the Act the authorities have transferred [the plaintiff], as a sentenced prisoner, initially from one prison to another. The prison in this case is Long Bay Prison Hospital which has a unique status as both a prison and hospital. The stated purpose of this transfer, which took place on 26 August 2004, would seem to be for the very purpose that section 97 exists, namely, to permit treatment to occur in a hospital rather than a prison for a person suffering from a mental illness. This purpose can be gleaned from the fact that the order was accompanied by copy of the schedule 3 form completed on 18 May 2004 by Dr Giuffrida.
… and on the same day that [the plaintiff] arrived at Long Bay Prison Hospital from the Mulawa Correctional Centre, she was the subject of further psychiatric assessment and the initiation of a new transfer process under the provisions of the Act. It was not until 30 August 2004, four days after [the plaintiff] arrived in a physical sense at Long Bay Prison Hospital, that she was then made the subject of a section 97 transfer order. The question must then be asked whether a section 97 order could be made validly at a time when [the plaintiff] was already in the actual premises to which a fresh transfer was being sought.
It does require some mental gymnastics to contemplate such a second transfer and these gymnastics can only succeed if that transfer is associated with a change of status rather than a physical movement to Long Bay Prison Hospital. Thus it can be contended that [the plaintiff] was transferred on 26 August 2004 as a sentenced prisoner from one prison to another and that even though that latter prison was also a hospital here status in it remained that of a sentenced prisoner. On August 30 2004 her status changed, as a result of a section 97 order being made, from a sentenced prisoner to a forensic patient.
From the wording of section 97 of the Act it seems quite improbable that the legislature at the time of enacting this provision envisaged such notional transfers of status. It is also stretching the imagination to contemplate that a mentally ill person would be “a person imprisoned in a prison” like Long Bay Prison Hospital rather than some other correctional facility. It seems evident that the reason why a transfer was required in the first place was that a person like [the plaintiff] who is believed to be mentally ill needed involuntary treatment for that illness which can only be provided in a gazetted hospital. Involuntary treatment can also only be given under strict conditions which include the following by the authorities of the lawful requirements of the Act. As such, despite having been transferred on 26 August 2004 into Long Bay Prison Hospital there was at that point no compliance with the provisions of the Act which would have permitted [the plaintiff] to be compelled to accept medication for her purported mental illness. It should also be emphasised that on the evidence before the Tribunal no attempt was made to undertake any such treatment.
While having reservations about the multi-phased manner in which [the plaintiff] was transferred, the Tribunal concludes that the process followed was lawful and that upon the signing of the section 97 order on 30 August 2004 [the plaintiff] did become a forensic patient as that term is defined in schedule 1 of the Act. Accordingly, the Tribunal does have jurisdiction to review [the plaintiff’s] current status as a forensic patient and is obliged to do so under the provisions of section 86(1) of the Act.”

68 It is important to recall at this stage the nature of the application now before me. It is an application for summary dismissal of the proceedings. While it is possible, on such an application, to decide complex questions of law, proceedings should only be summarily dismissed when the answer is quite clear. As the reasons of the Tribunal which I have just quoted show, there are significant arguments which can be put forward for section 97 not, on its proper application, extending to permit a merely notional change in status of a person, when there is no transfer of physical location. The proper examination of those arguments would involve a more detailed consideration of the legislation, and of the history of its enactment, than occurred before me. I say nothing about what the outcome of that more detailed consideration would be. What matters for present purposes is that I am not persuaded that the answer to the question of whether the section 97 order, was within power, is quite clear, except insofar as certain particular bases upon which the plaintiff argues for its invalidity are ones which I have held are unsustainable, or otherwise an abuse of process.

69 The plaintiff makes even further criticisms of the Schedule 3 certificates which were the foundation of the section 97 order. She asserts (with no particularity) that the views of the two psychiatrists who gave those certificates do not have a proper basis, either of fact, or of psychiatric standards. She also criticises the certificate of Dr Furst for being based on the observations of Dr Guiffrida, not on personal observations, as she submits section 97 MHA requires. I shall assume for present purposes that section 97 MHA incorporates by reference the terms of Schedule 3. Schedule 3 requires the medical practitioner/psychiatrist giving it to certify that he or she personally examined the prisoner, and that he or she is of the opinion that the prisoner is mentally ill. The certifier is required to state the grounds for that opinion, and to divide those grounds into facts indicating mental illness “observed by myself”, and “other relevant information (if any) communicated to me by others”. While it is necessary for the certifier to have personally conducted an examination of the prisoner, it is not necessary for the opinion of the certifier to be based only on facts which were observed by themselves. Any contention to the contrary in unarguable.

70 There are certain other challenges, possibly dependent upon allegations of fact, which the plaintiff makes to challenge the section 97 certificates. I will not set them out here. I have stated my views concerning some of the plaintiff’s contentions which are unarguable, or otherwise an abuse of process as I will limit the leave granted to proceed with the claim in paragraph 2 of the Summons so that the leave does not extend to agitating those matters.

71 For these reasons, I decline to summarily dismiss paragraph 2 of the Summons.

72 That does not lead to the conclusions that the part of the proceedings which is not summarily dismissed should simply continue. Paragraph 2 of the Summons seeks to set aside the decision of the MHRT, yet the MHRT is not a party to the proceedings. It is a necessary party, and the proceedings should not continue in its absence. That is so even though it is usually proper for a tribunal whose decision is challenged not to seek to become an active party in the litigation: R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, at 35-36.

73 As well, as these reasons for judgment show, there is quite some complexity in the arguments which underlie paragraph 2 of the Summons. The plaintiff’s claim is one which, for the purpose of identifying the issues involved in it, one which should be pleaded, by the filing of a Statement of Claim. I shall direct that, without leave of a Judge, the plaintiff shall take no step in these proceedings other than joining the MHRT as a defendant, and filing and serving a Statement of Claim, until MHRT has been joined as a defendant and a Statement of Claim filed.

Paragraph 3

74 It is not clear to me what the plaintiff is seeking by this paragraph, because it is not clear what “appeal” she is talking about. Section 281 MHA provides:

“A person having any matter before the Tribunal who is dissatisfied with:
(a) a determination of the Tribunal made with respect to the person, or
(b) the failure or refusal of the Tribunal to make a determination with respect to the person in accordance with the provisions of this Act,
may, subject to and in accordance with the rules of the Court, appeal to the Court against the determination, failure or refusal.”

Pursuant to Schedule 1 MHA, “Court” means the Supreme Court. No specific rules for appeals under the MHA have been made under Part 77 Supreme Court Rules 1970 . Thus, the general rules contained in Part 51A Supreme Court Rules 1970 would have applied before the coming into effect of the Uniform Civil Procedure Rules 2005 , and the general rules contained in Part 46 Uniform Civil Procedure Rules apply thereafter, to an appeal to the Court under section 281 MHA . Under both Part 51A rule 3, Supreme Court Rules 1970 and Part 46 rule 3 Uniform Civil Procedure Rules 2005 , an appeal must be instituted within 28 days after the “material date” (ie, the date when notice of the decision was given to Mrs Vorhauer) or within such extended time as the Court may fix. There is no appeal, or application to extend the time to appeal from the decision of MHRT on foot at present. If at any time there were to be an appeal on foot, interlocutory orders relating to production of documents for that appeal would be made in those appeal proceedings. As well, the lodging of an appeal from the decision of the MHRT seems to be somewhat at odds with the claim made in paragraph 2 of the Summons that that decision is unlawful and invalid. I accept, though, that sometimes a decision can have enough validity to be appealed against, even though it is otherwise invalid.

75 In the evidence, there is no mention by the plaintiff of having any intention to appeal.

76 For those reasons if the “appeal” referred to in paragraph 3 is an appeal under section 281 MHA, I would summarily dispose of paragraph 3.

77 If, however, the “appeal” referred to in paragraph 3 is these proceedings, it is inappropriate to have a prayer for final relief seeking the production of documents. It is an abuse of process to seek such a final order, and for that reason I would summarily dispose of paragraph 3. That would not stop the making of any interlocutory applications which might be appropriate.

78 As either alternative meaning of “appeal” in paragraph 3 results in its dismissal, it follows that paragraph 3 will be summarily dismissed.

Paragraph 4

79 The plaintiff could not identify for me the section of the MHA to which she intended to refer. The only provision that I can see in MHA relating to inspection of medical records is section 164, which relates only to a situation where consent is sought to perform psychosurgery – which is not the present situation. A claim based on a non-existent or unidentified section of legislation is an abuse of process. Paragraph 4 should be summarily dismissed.

Paragraph 5

80 There is no section 17(5) in the Mental Health (Criminal Procedure) Act 1990. Section 17 of that Act ends at section 17(3). Section 17 deals with a situation where a person has been found, before his or her trial, to be unfit to be tried. That was not the situation of the plaintiff at the time of the events about which she complains.

81 Paragraph 5 should be summarily dismissed.

Paragraph 6

82 The Summons in these proceedings was taken out at a time when the plaintiff was still detained at Long Bay. However, on 10 May 2005 she was returned to Mulawa, and by the time of delivery of these reasons for judgment would have been released from prison altogether. Paragraph 6 of the Summons goes to no live issue. It should be summarily dismissed.

Paragraph 7

83 The complaint which underlay this paragraph of the Summons is that, while in the hospital at Long Bay, the plaintiff had a drug administered to her, against her wishes. However, since her return to Mulawa, there is no arguable basis that there will be a repetition or continuance of that conduct. Thus, the mandatory order which paragraph 7 seeks is not one which goes to any live issue. Paragraph 7 should be summarily dismissed.

Paragraph 8

84 This paragraph raises the same issues as I have held are unsustainable at paras [59] - [61] above. As well, since her release, it goes to a matter which is not a presently live issue. For both of those reasons, it should be summarily dismissed.

Paragraph 9

85 Theophanus v The Herald and Weekly Times (1994) 182 CLR 104 concerned a defamation case brought by a member of the House of Representatives against the writer of a letter to the Editor which was critical of the plaintiff, and the publisher of the newspaper in which that letter was published disseminated. The High Court had held in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 that there was implied in the Constitution a right, in at least some circumstances, to freedom of communication relating to representative government, which operated as a restriction on legislative and executive powers. The plaintiff was Chairperson of the Joint Parliamentary Standing Committee on Migration Regulations, and also Chairperson of the Australian Labour Party’s Federal Caucus Immigration Committee. The letter complained about said that “it is high time he was thrown off parliament’s immigration committee” and gave the version of facts, and statement of opinion, which led the writer to that view. The defendants in the action had alleged that the implied freedom of communication had the effect of giving them a defence to the allegation of defamation. Theophanus v The Herald and Weekly Times (1994) 182 CLR 104 held that the implied freedom of communication had an effect not only on legislative and executive power but also upon the content of the common law and in particular resulted in a defence to an action for defamation in certain circumstances. The decision of the High Court in Theophanus v The Herald and Weekly Times (1994) 182 CLR 104 has no arguable connection with whether the plaintiff should be awarded damages for assault and pain and suffering. For that reason the allegation in paragraph 9 of the Summons should be summarily dismissed.

86 That summary dismissal would not prevent the plaintiff from bringing a claim for damages for assault in which she claimed pain and suffering, if there was some other basis for it than Theophanus v The Herald and Weekly Times (1994) 182 CLR 104. I say nothing about whether the plaintiff might, or might not, have such a cause of action. However, if she were to bring such a cause of action, Part 4 rule 2 Supreme Court Rules 1970 provides:

(1) Proceedings shall be commenced by Statement of Claim -
(a) where a claim is made by the plaintiff for any relief or remedy for any tort …
(c) where a claim is made by the plaintiff for damages for breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under an Act or Commonwealth Act or independently of any contract or any such provision); and the damages claimed consist of or include damages in respect of the death of any person or in respect of personal injuries to any person or in respect of damage to any property.”

Thus, if the plaintiff were minded to bring proceedings seeking damages on some other basis than Theophanus v The Herald and Weekly Times (1994) 182 CLR 104, those proceedings would need to be brought by Statement of Claim. Further, such proceedings would ordinarily be brought in, or be transferred to, the Common Law Division.

The Plaintiff’s Supplementary Submission

87 After my decision in this matter was reserved, and with the consent of the defendants, the plaintiff forwarded a supplementary submission. It makes complaint about certain of the conditions which have been imposed upon her parole. Those matters of complaint do not bear upon any of the paragraphs in the summons. Thus, they do not affect the conclusions which I have already expressed.

Conclusion

88 Paragraph 2 of the Summons will not be summarily dismissed. Leave to proceed with it will be granted, subject to restrictions mentioned at para [70] above. The direction mentioned at para [73] above will be made. Otherwise, the Summons will be summarily dismissed.

Costs

89 The defendants, in their Notice of Motion, seek costs. They have had a significant measure of success, but not total success. The appropriate order is that there be no order for costs of the Notice of Motion or of the proceedings to date, to the intent that each party shall bear his, her or its own costs.

1. I decline to grant the plaintiff an adjournment of the hearing of the Notice of Motion.

2. All paragraphs of the Summons except paragraph 2 are summarily dismissed.

3. Grant leave to the plaintiff nunc pro tunc to commence and continue the claim made in paragraph 2 of the Summons, subject to the plaintiff not raising, in the course of that claim, any contention which is held in these reasons for judgment, to be not reasonably open to argument, unarguable, unsustainable, to have no substance, to be an abuse of process, or any like description.

4. Direct that without leave of a Judge, the plaintiff shall take no step in these proceedings other than joining the Mental Health Review Tribunal as a defendant, and filing and serving a Statement of Claim, until Mental Health Review Tribunal has been joined as a defendant and a Statement of Claim filed

5. Order that there be no order for costs of the Notice of Motion or of the proceedings to date, to the intent that each party shall bear his, her or its own costs.

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