Gordon v Attorney-General - [2022] NZCA 245

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA130/2022
[2022] NZCA 245

BETWEEN	SARAH GORDON First Applicant GILES NEWTON-HOWES Second Applicant
AND	ATTORNEY-GENERAL First Respondent DIRECTOR-GENERAL OF HEALTH Second Respondent

Court:	Brown and Katz JJ
Counsel:	I H V Reuvecamp for Applicants V McCall for Respondents
Judgment: (On the papers)	13 June 2022 at 2:30 pm

JUDGMENT OF THE COURT

A The application to transfer is declined.
B There is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Katz J)

Introduction

The applicants have filed a proceeding in the High Court challenging the interpretation of certain provisions of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Act) and also the way that the Ministry of Health implements that Act. The applicants seek to transfer that proceeding to this Court, pursuant to s 59(1) of the Senior Courts Act 2016.
A proceeding can only be transferred to this Court if the circumstances of the proceeding are exceptional.[1] One of the examples of exceptional circumstances given in the Act is that the party to the proceeding intends to submit that a relevant decision of this Court should be overruled.[2] The applicants submit that this proceeding meets that criterion.
[1]Senior Courts Act 2016, s 59(2).
[2]Section 59(3)(a).
If the exceptional circumstances threshold is met, this Court then has a discretion as to whether to order the transfer. The Act sets out a number of mandatory considerations (see [16] below) that the Court must have regard to when exercising that discretion.[3]

Background

[3]Section 59(4).

The first applicant, Ms Gordon, is a mental health services consumer with an illness of a nature which, she says, places her at threat of compulsory assessment and treatment under Act. The second applicant, Mr Newton-Howes, is a psychiatrist. He assesses patients and is a clinician in charge of patient treatment under the Act.
The Act was enacted thirty years ago now, in 1992, to redefine the circumstances in which, and the conditions under which, persons may be subjected to compulsory psychiatric assessment and treatment.[4] The Ministry of Health acknowledges that time has moved on since the Act was enacted, and that aspects of the legislation are likely inconsistent with the New Zealand Bill of Rights Act 1990 (NZBORA). The Ministry is therefore currently reviewing the Act. The Government has committed to the Act’s repeal and replacement with new legislation, due to be introduced at the start of 2023.
[4]Mental Health (Compulsory Assessment and Treatment) Act 1992, long title.
The applicants, however, do not wish to await the outcome of the current law reform process. They are concerned that it may be some time until the replacement legislation is enacted. The rights of mental health consumers, they believe, will continue to be breached in the interim. Further, it is their hope that a decision of this Court will help inform the law reform process.
The applicants plead five causes of action, seeking declarations under the Declaratory Judgments Act…

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.

Continue reading Gordon v Attorney-General

Details

AGLC: Gordon v Attorney-General [2022] NZCA 245
Case: [2022] NZCA 245
Decision Date: 13 June 2022 at 2:30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand has issued a decision in the case of Gordon v Attorney-General, where the applicants sought to transfer a proceeding from the High Court to the Court of Appeal. The applicants, Sarah Gordon and Giles Newton-Howes, challenge the interpretation of certain provisions of the Mental Health (Compulsory Assessment and Treatment) Act 1992 and the way the Ministry of Health implements the Act. The applicants sought a transfer of the proceeding to the Court of Appeal, which can only occur if the circumstances of the proceeding are exceptional. The applicants argued that this proceeding meets the criterion because they intend to submit that a relevant decision of the Court should be overruled.

The Court of Appeal declined the application to transfer the proceeding, finding that the proceeding did not meet the exceptional circumstances threshold. The applicants sought to challenge the Court's interpretation of "fit to be released from compulsory status" in their first cause of action, but the Court found that the exceptional circumstances threshold was met only in relation to the first cause of action. The Court considered the mandatory considerations in the Senior Courts Act 2016 when exercising its discretion to order the transfer. The Court found that the proceeding raised issues of considerable public importance and aimed at enhancing the human rights of people in psychosocial distress, pending more substantive law reform. However, the Court was not persuaded that this proceeding should be transferred to the Court of Appeal, largely for the reasons identified by the respondents. The Court found that the proceeding does not need to be determined urgently, and a transfer to the Court of Appeal would be inefficient and cut across the policy development process that is underway.

The Court also found that no order for costs should be made, as the applicants are bringing the proceeding in the public interest, and not for their own personal benefit. The applicants have acted reasonably in the conduct of this application, and an award of costs in these circumstances would impede access to justice and the representation of the public interest. The respondents' submissions were silent on the issue of costs, and the Court took it that the respondents did not fundamentally disagree with the various matters raised by the applicants in this context. The Court declined the application to transfer the proceeding and made no order as to costs.

Orders