Zhong v Royal Melbourne Hospital and Ors (Ruling)

[2013] VCC 172

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
MEDICAL DIVISION

Case No. CI-12-00392

YU CHUN ZHONG	Plaintiff
v
THE ROYAL MELBOURNE HOSPITAL	First Defendant
ST VINCENT’S HOSPITAL	Second Defendant
MENTAL HEALTH REVIEW BOARD	Third Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	9 November 2012
DATE OF RULING:	15 February 2013
CASE MAY BE CITED AS:	Zhong v Royal Melbourne Hospital & Ors (Ruling)
MEDIUM NEUTRAL CITATION:	[2013] VCC 172

RULING
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Catchwords:             Application by the third defendant for dismissal of the claim made by the plaintiff.

Legislation Cited:     Wrongs Act 1958; Mental Health Act 1986 S130A
Cases Cited:            Gallo v Dawson (1988) 82 ALR 401; Sirros v Moore [1975] QB 118

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person	-
For the First Defendant	-	K & L Gates
For the Second Defendant	-	DLA Piper Australia
For the Third Defendant	Mr M Minucci	Victorian Government Solicitor

HIS HONOUR:

1       In this proceeding, the plaintiff brings a claim against the third defendant in which he alleges that on or about 13 December 2004, the third defendant wrongly made a decision that the plaintiff was suffering from a mental illness in the form of paranoid schizophrenia and should be the subject of an involuntary treatment order.

2       The plaintiff seeks damages against the third defendant by reason of the defendant’s alleged:

(i)    Wrongful activity;

(ii)   Negligence or breach of duty;

(iii)    Wrongful decision in upholding an involuntary treatment order which applied to the plaintiff.  In this respect it is alleged by the plaintiff that the third defendant did so with the intention of causing the plaintiff to suffer “serious injuries, damages and huge losses”.

3       It is clear that this is a civil proceeding governed by the common law and the provisions of the Wrongs Act 1958 and that, notwithstanding the plaintiff’s submission to the contrary, it is not governed by the operation of the Crimes Act 1958.

4 In this application, the third defendant asserts that it is entitled to an immunity in respect of the proceeding instituted by the plaintiff against it pursuant to the provisions of s130A of the Mental Health Act 1986, which provides:

“130A  Protection of members, persons and witnesses

(1)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.

… .”

5       There is no issue that a Judge of the Supreme Court is entitled to a blanket immunity with respect to his or her actions, that any remedy available for even the most corrupt of activities undertaken by a Judge must be pursued in the criminal courts, and that a Judge is not liable to an action for damages.

6       The statement by Wilson J in Gallo v Dawson[1] is self explanatory as to the nature of the immunity which applies in the circumstances of the present case, which was described by Wilson J in the following terms:

[1](1988) 82 ALR 401 at 402-403

“In the first place, the plaintiff's affidavit makes it plain beyond question that the conduct alleged against the defendant, assuming for the purposes of the present application that it occurred at all, was undertaken in the performance of his judicial duties. There is no suggestion that he lacked jurisdiction to perform the acts alleged against him. In this context, “jurisdiction” means the broad and general authority conferred upon a court to hear and determine a matter. It is authority to decide that is the test, not the mode of decision nor the manner in which the power has been exercised: see Nakhla v McCarthy[1978] 1 NZLR 291 at 301.

In the second place, the principle invoked on behalf of the defendant is a fundamental principle of law of long standing. The principle was explained by Lord Denning MR in Sirros v Moore [1975] 1 QB 118 at 132 as follows:

‘Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus, or a writ of error or certiorari or take some such step to reverse his ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages. The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear. It was well stated by Lord Tenterden CJ in Garnett v Ferrand (1827) 6 B & C 611 at 625:

‘This freedom from action and question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be.’”

7       In the present case, it is put on behalf of the third defendant that on 14 February 2004, a hearing was convened by the Mental Health Review Board to undertake a review of an Involuntary Treatment Order (“the Review”) made with respect to the plaintiff on 29 January 2004.

8       The plaintiff’s complaint against the third defendant relates to the Order which was made as the result of the Review.

9       It is put on behalf of the third defendant that the Review was convened by the Board in the exercise of the jurisdiction conferred upon it by reason of s22 of the Mental Heath Act, which relevantly provides:

“22     Functions of the Board

(1)     The functions of the Board are as follows—

(a)to hear appeals by or on behalf of involuntary patients and security patients;

(b)to review periodically the orders made for involuntary patients and security patients and their treatment plans;

(c)to hear appeals against the refusal of the chief psychiatrist to grant special leave to security patients;

(ca)to hear appeals against the transfer of involuntary patients and security patients;

(d)to review orders for the transfer of involuntary patients to interstate mental health facilities;

*         *       *       *        *

(g)     such other functions as are specified in this Act.

(2)The Board must in determining any review or appeal have regard primarily to the patient's current mental condition and consider the patient's medical and psychiatric history and social circumstances.

(3)In the case of a review or an appeal of a restricted involuntary treatment order or restricted community treatment order, the Board must, in addition to the matters in subsection (2), consider the patient's forensic history.”

10 I am satisfied, having regard to the provisions of s130A of the Mental Health Act 1986, which confers upon members of the third defendant an immunity equivalent to that which applies to a Judge of the Supreme Court, that unless it can be shown that the members of the Board undertaking the Review were not acting in the performance of their duties, the members of the Board (and thus the third defendant) are entitled to the benefit of the immunity conferred by s130A of the Mental Health Act 1986.

11      It follows that even if the decision of the Board was flawed in some way, this is not a matter in respect of which the plaintiff is entitled to redress in a claim for damage.[2] 

[2]See Sirros v Moore [1975] QB 118 at 132

Findings

12      Firstly – In the present case, I have no evidence before me as to whether the Board which was convened to undertake the Review was convened in accordance with the requirements of the Act.  This is an issue which can be addressed by the filing of an appropriate affidavit, and I consider it appropriate that I delay making a final ruling as to this application until this is attended to.

13      Secondly – It is not alleged specifically by the plaintiff in his pleadings that the relevant decision by the Board was a decision in respect of which the Board did not have jurisdiction.  It is asserted by the plaintiff, however, that in making the relevant decision, the Board did so with the intention of causing the plaintiff to suffer “serious injuries, damages and huge losses”.[3]

[3]See paragraph 10(d) of the plaintiff’s Statement of Claim dated 28 May 2012

14      The plaintiff is unrepresented in this proceeding.  He has no knowledge of the law applicable to this proceeding or the rules relevant as to pleading, nor does he have any experience in the way a pleading should be framed.  In these circumstances I consider it appropriate that I adopt a cautious approach in interpreting the plaintiff’s pleadings.  If by this pleading the plaintiff is asserting that the Board lacked jurisdiction, in that it did not have authority:

(i)    to undertake a review of the treatment order which was imposed upon the plaintiff; or

(ii)   to make the order the subject of the plaintiff’s complaint;

and in those circumstances the members of the Board were acting in a manner which was beyond the boundary of their jurisdiction, it is arguable that the plaintiff’s cause of action may not be defeated by the immunity the subject of s130 of the Act.

15      Whilst this would seem unlikely, I am satisfied, balancing:

(i)    The fact that the plaintiff is a litigant in person;

(iii)   The fact that I have required the third defendant to file an affidavit in the application;

(iv)   My obligation to ensure that a cause of action which constitutes an abuse of the process of the Court is determined without delay;

that I should, subject to allowing the third defendant to be heard on the point, require the third defendant in its affidavit to depose as to this issue.

16      Equally, I will give to the plaintiff the opportunity to file an affidavit in which he sets out the alleged conduct of the Board which he relies upon in making the allegation contained in paragraph 10(d) of his Statement of Claim.

17      For the reasons set out above, I consider it appropriate that I adjourn this application at this time and give the parties directions as to the filing of affidavits.

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