Yu Chun Zhong v Royal Melbourne Hospital(and others according to the schedule attached)

[2013] VSCA 220

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2013 0058

YU CHUN ZHONG	Applicant
V
ROYAL MELBOURNE HOSPITAL (and others according to the schedule attached)	Respondents

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JUDGES	HANSEN and TATE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	23 August 2013
DATE OF JUDGMENT	29 August 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 220
JUDGMENT APPEALED FROM	Yu Chun Zhong v Royal Melbourne Hospital & Ors (Unreported, County Court of Victoria, Judge Saccardo, 17 April 2013)

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ADMINISTRATIVE LAW – Medical Health Review Board – Immunity of members from suit in performance of statutory function – Alleged criminal actions – Evidence – Summary dismissal – Mental Health Act 1986 (Vic) s 130A(1).

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Appearances:	Counsel	Solicitors
The Applicant in person
No appearance for the First and Second Respondents
For the Third, Fourth and Fifth Respondents	Ms N J Blok	Victorian Government Solicitor’s Office

HANSEN JA:

1. The applicant seeks leave to appeal out of time from orders made by the County Court on 17 April 2013 and, by inference, orders made on 15 March 2013.  The application is not opposed on the ground of its being out of time. 

1. The applicant commenced the subject proceeding on 30 January 2012 against the Mental Health Review Board (Board) and two others, namely Royal Melbourne Hospital and St Vincent’s Hospital.  The orders in question on the present application concern only the Board.

1. The proceeding against the Board concerns a decision made by it on 13 February 2004, on an initial review and appeal under ss 29(1), 30(1) and 31, and in the exercise of its powers under s 36(3) of the Mental Health Act 1986 (Vic) (the Act), that confirmed an involuntary treatment order made by Royal Melbourne Hospital Mental Health Service allowing that service to involuntarily treat the applicant for his mental illness. The applicant alleges that the Board acted wrongfully, negligently or in breach of duty, and with the intention of causing him injury and loss. He claims damages of $40billion.

1. By a summons filed on 29 October 2012, the Board sought an order that the proceeding be dismissed on the ground that the claim was covered by the immunity conferred by s 130A(1) of the Act, which provides:

A member of the Board or the Psychosurgery Review Board has in the performance of duties as a member the same protection and immunity as a Judge of the Supreme Court.

1. The reference to the immunity of a Judge does not disguise the fact that the members of the Board act administratively and not judicially, and that the immunity is conferred by the statute, not common law.[1]

   [1]See Colquhoun v Capitol Radiology Pty Ltd [2013] VSCA 58, [19]; Kracke v Mental Health Review Board & Ors (General) [2009] VCAT 646; Towie v State of Victoria [2008] VSC 177, [56]; Conde v Roney [2010] QSC 12. As to the immunity of a Judge of the Supreme Court see Gallo v Dawson (1988) 82 ALR 401; Rajski v Powell (1987) 11 NSWLR 522.

1. At the hearing of the summons on 9 December 2012, his Honour queried whether the immunity applied to the Board or to the members who constituted the Board at the subject hearing. 

1. At a subsequent hearing on 15 February 2013 the Board again submitted that the claim was met by the immunity conferred by s 130A(1) of the Act. The judge accepted that the immunity would apply, provided that the members of the Board were acting in the performance of their duties. The judge adjourned the further hearing with directions for affidavits on this point, dealing with the Board’s composition and whether the members were acting within jurisdiction.

1. Subsequently, by a further submission the Board contended that it was not a legal entity and could not be sued, and that the immunity applied to the individual members.  As against this, the applicant submitted, as he continues to do, that the Board was a public authority within the meaning of the Charter of Human Rights and Responsibilities Act 2006 (Vic), and Part VII of the Wrongs Act 1958 (Vic), and accordingly that the proceeding was properly brought against the Board.

1. The judge gave judgment on 15 March 2013.  He accepted the Board’s submission.  However, rather than dismiss the proceeding he gave the applicant leave to amend by substituting for the Board the three individual members who constituted the Board on the relevant occasion.  He also gave directions for the filing of affidavits. 

1. The applicant duly made the amendment to add the three members who had constituted the Board.  However, he added a further 15 persons who constituted the balance of members of the Board at relevant times; the judge refused this amendment. 

1. In a second ruling that day the judge concluded that the immunity applied to the three members who constituted the Board at the relevant time.  However, being cautious, he considered that the Board should depose to the question whether the Board had lacked jurisdiction in that the named member/defendants did not have authority to undertake a review of the treatment order imposed on the applicant or to make the order the subject of complaint.  If that were so, the immunity may not apply.  Accordingly, the judge would receive an affidavit from the defendants, and an affidavit from the applicant as to the conduct he relied on in alleging that the Board caused ‘serious injuries, damages and huge losses intentionally’.[2]  In giving the applicant this opportunity to file an affidavit as to these assertions the applicant was able to give evidence as to why the immunity did not apply.

   [2]Statement of Claim para 10(d).

1. An affidavit was duly filed on behalf of the three members who constituted the Board, sworn by the person who at the relevant times was the President of the Board.  The affidavit showed that the members had acted in accordance with their functions and powers.  The applicant did not file an affidavit. 

1. On 17 April 2013 his Honour ruled that the individual Board members were entitled to the immunity and dismissed the proceeding against them.  On the evidence it was open to his Honour to take that course.  His Honour also refused to allow a further application by the applicant to amend by adding the other 15 members as defendants.

1. In terms, the applicant’s summons seeks leave to appeal only from a ruling made on 17 April 2013.  But it is clear that he seeks leave in respect of:

1.The rulings on 15 March 2013 for the substitution of the individual members on the basis that the Board could not be sued, and that the members were entitled to immunity if they had acted within jurisdiction, and

2.The rulings on 17 April 2013 to dismiss the claim on the basis of the immunity, and refuse the application to add further defendants.

1. The applicant continues to argue that the Board is an entity which can be sued.  He further submits that the immunity does not apply because the members had committed the indictable offences of intentionally causing serious injury, damage and disabilities to the applicant;  the same applies to the other 15 persons.  Hence, all the rulings or orders were wrong, and he should be permitted to continue with the proceeding.

1. These submissions are without substance.  No doubt attends the rulings or orders.  The rulings are clear, reasoned and correct.  No more need be said.  In particular there is no need to repeat his Honour’s consideration of the matter of the immunity and that it applied in this case.

1. The application should be refused with costs.

TATE JA:

1. I agree with Hansen JA.

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SCHEDULE OF PARTIES

YU CHUN ZHONG	Applicant
ROYAL MELBOURNE HOSPITAL	First Respondent
ST VINCENT’S HOSPITAL	Second Respondent
MS ANGELA SMITH	Third Respondent
MS JENIFER LEE	Fourth Respondent
DR HARI DASS CHOPRA	Fifth Respondent