A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor

Supreme Court of NSW|2010-11-23|Before: Johnson J, Adam P

CITATION : A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor [2010] NSWSC 1363

The Plaintiff is refused leave to appeal under s.77A(1) Mental Health (Forensic Provisions) Act 1990. DECISION : 2. The Further Amended Summons filed on 27 July 2010 is dismissed. 3. The Plaintiff is to pay the Second Defendant's costs of and incidental to the proceedings and those costs may be recovered from the Plaintiff's tutor, Brett Anthony Collins. 4. No order is made with respect to the costs of the First Defendant.

CATCHWORDS : ADMINISTRATIVE LAW - application for leave to appeal to Supreme Court - applicant a forensic patient - found not guilty on ground of mental illness of manslaughter and maliciously damaging property by fire - order for detention until released by due process of law - applicant subject to periodic review by Mental Health Review Tribunal - Tribunal empowered to make order as to forensic patient's continued detention, care or treatment - forensic patient seeks leave to appeal concerning practical aspects of clinical treatment and place of detention - nature of appeal under s.77A(1) Mental Health (Forensic Provisions) Act 1990 - factors relevant to grant of leave to appeal - leave refused - whether costs should follow event - whether tutor ought be liable to pay costs

Mental Health (Forensic Provisions) Act 1990 Mental Health Act 2007 LEGISLATION CITED : Civil Procedure Act 2005 Mental Health Legislation Amendment (Forensic Provisions) Act 2008 Interpretation Act 1987 Supreme Court Act 1970

R v MJR [2010] NSWSC 653 R v Coleman [2010] NSWSC 177 Walsh v Law Society (NSW) [1999] HCA 33; 198 CLR 73 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; 270 ALR 228 Director of Public Prosecutions v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 OV and OW v Members of the Board of the Wesley Mission Council [2010] NSWCA 155 R v Rodriguez [2010] NSWSC 198 Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347 Lindsay v Health Care Complaints Commission [2005] NSWCA 356 CASES CITED : Chowdhury v Health Care Complaints Commission [2010] NSWCA 56 S v South Eastern Sydney and Illawarra Areal Health Service [2010] NSWSC 178 Coulter v The Queen [1988] HCA 3; 164 CLR 350 Adam P Brown Male Fashions Pty Limited v Philip Morris Inc [1981] HCA 39; 148 CLR 170 Cachia v Grech [2009] NSWCA 232 Ryan v R [2009] NSWCCA 183 Adams By Her Next Friend O'Grady v State of New South Wales (No. 2) [2008] NSWSC 1394 Yakmor v Hamdoush (No. 2) [2009] NSWCA 284 Turnbull v New south Wales Medical Board [1976] 2 NSWLR 281 Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62 Re R [2000] NSWSC 886

TEXTS CITED : "Review of the New South Wales Forensic Mental Health Legislation", August 2007

A (Plaintiff) PARTIES : Mental Health Review Tribunal (First Defendant) Attorney General of New South Wales (Second Defendant)

COUNSEL : Mr BA Collins (Tutor for the Plaintiff) Ms AC Johnson (Second Defendant)

Plaintiff unrepresented SOLICITORS : Submitting Appearance (First Defendant) Crown Solicitor's Office (Second Defendant)

LOWER COURT JURISDICTION : Mental Health Review Tribunal

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

2010/62963 A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor

JUDGMENT 1 JOHNSON J: This is an application for leave to appeal under s.77A(1) Mental Health (Forensic Provisions) Act 1990 ("MHFP Act") from a determination of the Mental Health Review Tribunal ("the Tribunal") on 11 February 2010. 2 The Plaintiff, A, brings the proceedings through a tutor, Brett Anthony Collins. The Plaintiff is a forensic patient for the purposes of the MHFP Act and the Mental Health Act 2007. Because of this, he is a person under legal incapacity: s.3(1) Civil Procedure Act 2005. 3 The Plaintiff will be referred to in this judgment by use of the pseudonym "A", because of the restriction upon publication of the name of a person before the Tribunal: s.162 Mental Health Act 2007. 4 A submitting appearance has been filed on behalf of the First Defendant, the Tribunal. The Plaintiff's claim for relief is opposed by the Second Defendant, the Attorney General for New South Wales. 5 The Court was informed that this is the first application for leave to appeal brought under s.77A MHFP Act. As a result, although the outcome of the application is clear, my reasons will extend beyond what might usually be expected on a leave application.

Legal Representation of Plaintiff and His Tutor 6 Proceedings were commenced in this Court by the filing of a Summons on 11 March 2010. An Amended Summons was filed on 3 June 2010 and a Further Amended Summons was filed on 27 July 2010. 7 Since the institution of these proceedings, the Plaintiff has been represented, from time to time, by three different firms of solicitors. On 19 November 2010, a Notice of Ceasing to Act was filed in the Court, by which the last solicitor to act for the Plaintiff communicated that his instructions had been withdrawn by the Plaintiff's tutor on 16 November 2010. 8 At the commencement of the hearing on 23 November 2010, Mr Collins, the Plaintiff's tutor, indicated that he and the Plaintiff wished to proceed with the application for leave with Mr Collins to appear at the hearing. 9 Part 7 Rule 7.14(2) Uniform Civil Procedure Rules 2005 provides that, unless the Court orders otherwise, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor. Mr Collins asked that I make an order allowing him to carry on the proceedings without a solicitor. The Court was informed that Mr Collins was the Plaintiff's "primary carer" for the purpose of s.71 Mental Health Act 2007. 10 Ms Johnson, who appeared for the Second Defendant, did not oppose the application for Mr Collins to appear at the hearing, having regard to his association with the Plaintiff and the history of the proceedings in this Court. 11 I was satisfied that the interests of the Plaintiff would be appropriately protected by Mr Collins carrying on the proceedings at the hearing without a solicitor, having regard to his association with the Plaintiff and the desire of the Plaintiff and Mr Collins to proceed in that way. That step would also permit the proceedings to advance, against a background of some delay since they were instituted. Accordingly, I made an order permitting Mr Collins to carry on the proceedings at the hearing without a solicitor. 12 It was apparent that Mr Collins had a complete understanding and knowledge of the subject matter of the litigation, and the legal and factual issues involved, and he advanced arguments in support of the grant of leave.

Factual Background 13 A number of affidavits were read at the hearing of the leave application, and other documents were tendered in evidence. 14 The Plaintiff was born in Iran in 1958 and immigrated to Australia in 1983. By January 2002, the Plaintiff was employed as an interpreter by the Community Relations Commission. On 18 January 2002, the Plaintiff started a fire in the offices of the Community Relations Commission at Ashfield, resulting in the death of a fellow employee, and extensive damage to the premises. He was charged with the murder of the deceased and with maliciously damaging property by fire with intent to endanger life. On 1 May 2003, he was found unfit to stand trial and, in accordance with law, he was referred to the Tribunal, and was remanded in custody until effect was given to the determination of the Tribunal. On 19 May 2003, the Tribunal determined, on the balance of probabilities, that the Plaintiff would not become fit to be tried for the offences within 12 months of the finding of unfitness. On 8 July 2003, the Attorney General directed that there be a special hearing in relation to the offences with which he was charged. 15 The special hearing commenced on 3 March 2004 before Buddin J and a jury. The jury acquitted the Plaintiff of murder and maliciously damaging property by fire with intent to endanger human life. The jury found the Plaintiff not guilty on the ground of mental illness of the manslaughter of the deceased and not guilty of maliciously damaging property by fire by reason of mental illness. 16 On 19 March 2004, in accordance with s.39 MHFP Act, Buddin J ordered that the Plaintiff be detained at Ward D of the Long Bay Prison Hospital until released by due process of law. 17 In April 2007, the Court of Criminal Appeal dismissed the Plaintiff's appeal from orders made at the special hearing. 18 By February 2010, the Plaintiff was being detained in the Clovelly Ward at the Forensic Hospital, Malabar, a "mental health facility" for the purposes of the MHFP Act. The Forensic Hospital is a relatively new facility, comprising a 135-bed high-security environment for male and female adults and adolescents operated by Justice Health: R v MJR [2010] NSWSC 653 at [47]. The Plaintiff has been detained in the Forensic Hospital since its opening in November 2008. 19 Section 46 MHFP Act requires regular reviews by the Tribunal of each forensic patient. After reviewing the case of a forensic patient under s.46, the Tribunal may make an order under s.47 MHFP Act. 20 It is appropriate to set out the terms of ss.46 and 47 MHFP Act: "46 Further reviews by Tribunal of forensic patients

(1) The Tribunal must review the case of each forensic patient every 6 months but may review the case of any forensic patient at any time.

(2) The Tribunal must review the case of a forensic patient if requested to do so by the Minister for Health, the Attorney General, the Minister for Justice, the Minister for Juvenile Justice, the Director-General or the medical superintendent of the mental health facility in which the patient is detained.

(3) The Tribunal must review the case of each forensic patient who is subject to a community treatment order, and who is detained in a correctional centre, every 3 months.

(4) The period within which a particular review under this section must be held may, on the motion of the Tribunal or on the application of the patient or the primary carer of the patient, be extended by the Tribunal to a maximum of 12 months.

(5) The Tribunal may grant an application to extend the review period if it is satisfied that: (a) there are reasonable grounds to grant the application, or

(b) an earlier review is not required because: (i) there has been no change since the last review in the patient's condition, and

(ii) there is no apparent need for any change in existing orders relating to the patient, and

(iii) an earlier review may be detrimental to the condition of the patient. 47 Orders and recommendations on further Tribunal reviews

(1) The Tribunal may, after reviewing the case of a forensic patient under section 46, make an order as to: (a) the patient's continued detention, care or treatment in a mental health facility, correctional centre or other place, or

(b) the patient's release (either unconditionally or subject to conditions).

(2) The Tribunal must not make an order as to the release of a forensic patient if the patient is a person who has been remanded in custody pending the person's return to court but may make a recommendation to the court as to the person's release.

(3) An order for release under this section may be made despite any other provision of this Act or any order of a court under this Act.

(4) On reviewing under section 46 the case of a forensic patient who is subject to a finding that the person is unfit to be tried for an offence, the Tribunal must make a recommendation as to the fitness of the patient to be tried for an offence.

(5) The Tribunal must notify the court that made the finding of unfitness and the Director of Public Prosecutions if, on a review, the Tribunal is of the opinion that the person: (a) has become fit to be tried for an offence, or

(b) has not become fit to be tried for an offence and will not, during the period of 12 months after the finding of unfitness by the court, become fit to be tried for the offence." 21 The Tribunal is constituted under Chapter 6 (ss.140-162A) Mental Health Act 2007. When exercising its functions under the MHFP Act, the Tribunal is to be constituted by three members, being the President or Deputy President (who are lawyers), one member who is a psychiatrist, a registered psychologist or other suitable expert in relation to a mental condition and one member who has other suitable qualifications or experience: s.73 MHFP Act. 22 The provisions applicable to a forensic patient, who has been found not guilty on the grounds of mental illness, and the powers and functions of the Tribunal in that respect, were helpfully summarised by Hall J in R v Coleman [2010] NSWSC 177 at [69]-[79]: "69 The legal and practical consequences of a finding that the accused is 'not guilty on the ground of mental illness' may be shortly stated.

70 The statute which governs cases like this, namely, s.39(1) of the Mental Health (Forensic Provisions) Act, requires me to consider making an order that the accused be detained in such place and in such manner as the Court thinks fit until released by due process of law. In practice, this means not only that the accused remains in custody until a decision is made to release him, but also that he becomes what is known as a forensic patient and falls under the supervision of a body called the Mental Health Review Tribunal.

71 The Mental Health Review Tribunal consists of a president and his/her deputy, who must be a lawyer. It also consists of two other persons, one of whom must be a psychiatrist. The third member is a person who has suitable qualifications or experience for the task.

72 The Tribunal is required to review the accused's case as soon as practicable after an order is made for his detention in strict custody. The Tribunal may make orders as to his continued detention, care or treatment, or as to this release.

73 The Tribunal cannot make an order for the release of the accused unless it is satisfied that the safety of that person or any member of the public would not be seriously endangered by his release. The Minister for Health and the Attorney General may appear before the Tribunal, or make submissions to the Tribunal, in relation to the possible release of the accused.

74 Where an order for release is not made, the Tribunal orders result in continued detention, care and treatment in a place and manner specified by the Tribunal.

75 After the initial review, the Tribunal must, at least once every six months, again review the case and make orders as to the accused's continued detention, care or treatment in a hospital, prison or other place or as to his release.

76 If release is ordered, then it may be on conditions or it may be unconditional. If any condition is breached, or where the mental condition of the accused has deteriorated so that he may be a serious danger to others, a further order may be made by the Tribunal for his apprehension, care and detention.

77 The conditions which could be prescribed include matters such as living in a particular place, taking particular medication, appointments with health care professionals, enrolment in educational and therapeutic programmes, to ensure that the accused is properly cared for. Other than pursuant to any such release, the accused would remain, as I have said previously, in strict custody within one of the psychiatric institutions caring for forensic patients.

78 Security conditions (as necessary) are in place while the accused is detained in a hospital, prison or other place or if he is allowed to be temporarily absent from the place of detention.

79 The accused may be released from these restrictions if given an unconditional release, or where released on conditions and those conditions have expired over time. However, as I have previously explained, the accused will only ever be released when the Mental Health Review Tribunal is satisfied on the evidence available to it that his safety and the safety of any member of the public will not thereby be seriously endangered." 23 On 11 February 2010, the Tribunal undertook its 14th review of the Plaintiff pursuant to s.46(1) MHFP Act. At that Tribunal hearing, the Plaintiff's treating team sought no change to the then-current order for care, treatment and detention. A multi-disciplinary report comprising reports by the treating psychiatrist, the care co-ordinator, an occupational therapist, a forensic psychologist, a social worker and the nursing unit manager supported this recommendation. The psychiatric diagnosis was that the Plaintiff was suffering from paranoid psychosis. 24 Mr Collins appeared on 11 February 2010 and both he and the Plaintiff addressed the Tribunal. There was some discussion concerning material which had previously been provided to the Tribunal on behalf of the Plaintiff, and documents were presented by Mr Collins at the hearing. It is not necessary to outline in any detail what occurred at that hearing, for the purpose of determining the present leave application. 25 In reasons for decision issued on 3 March 2010, the Tribunal noted that a number of changes were sought with respect to the Plaintiff's care, treatment and detention. However, the Tribunal expressed the opinion that the then-current arrangements for the Plaintiff's care, treatment and detention at the Forensic Hospital should continue. 26 Following institution of proceedings in this Court on 11 March 2010, the Plaintiff's claim for relief has been modified, so that the following orders are sought in the Further Amended Summons filed on 27 July 2010:

(1) Leave to appeal from the whole of the decision below. (2) Appeal allowed.

(3) That the following changes be made to the current arrangements for the Plaintiff's care, treatment and detention: (a) That the Plaintiff's detention at the Clovelly Unit of the Forensic Hospital be terminated and he be transferred for detention in a less restrictive facility at either Bunya or Morisset.

(b) That the Plaintiff be allowed escorted ground leave, escorted day leave and escorted weekend leave in the care of his Primary Carer.

(d) That the Plaintiff's compulsory medication by injection cease.

(e) That the Plaintiff be given access for educational purposes to the computer donated to the Forensic Hospital for his use by students of the University of NSW. (f) That the plaintiff be allowed visitors including support workers from Justice Action.

(4) Costs. 27 On 30 September 2010, a review hearing proceeded before the Tribunal, differently constituted to the Tribunal on 11 February 2010. The Tribunal on 30 September 2010 comprised the President, the Hon GR James QC, Dr Peter Shea (psychiatrist) and Ms Lynn Houlahan (member). The Plaintiff was represented by counsel and Mr Collins was in attendance. Counsel for the Plaintiff informed the Tribunal that the Plaintiff and Mr Collins did not wish to participate in the review that day, but rather to proceed with the Supreme Court proceedings. The Tribunal was informed that a report from Dr Bruce Westmore, psychiatrist, was being obtained, upon which the Plaintiff would seek to rely. The President of the Tribunal indicated that the Tribunal was willing to sit by way of review hearing concerning the Plaintiff's care, treatment and detention at any time, and that any report from Dr Westmore ought be furnished for that purpose. 28 The matter has not returned to the Tribunal since 30 September 2010. On 23 November 2010, Mr Collins furnished to the Court reports of Dr Westmore dated 20 September 2010 and 22 November 2010, neither of which have been provided to the Tribunal.

Appeals from Determinations of the Tribunal Concerning Forensic Patients 29 Section 77A was included in the MHFP Act as part of a series of amendments made by the Mental Health Legislation Amendment (Forensic Provisions) Act 2008. Amongst other things, the amendments abolished the system of executive discretion to determine the release of forensic patients, and vested that decision-making function in the Forensic Division of the Tribunal. Provision was made for appeals to the Supreme Court or the Court of Appeal from decisions of the Forensic Division of the Tribunal (s.77A). The amendments commenced on 1 March 2009. 30 The amendments gave effect to a number of recommendations made by the Hon GR James QC in his Report entitled "Review of the New South Wales Forensic Mental Health Legislation", August 2007. As will be seen, that Report recommended that there be a right of appeal to the Court from decisions of the Tribunal concerning forensic patients, but did not refer to the appeal being subject to a grant of leave. 31 The Report may be used as extrinsic material in the interpretation of the MHFP Act: s.34 Interpretation Act 1987. The Report said with respect to the appeal process (paragraphs 5.69-5.73, pages 89-91) (footnotes omitted): " Appeal Process 5.69 While decisions of the Tribunal are already subject to appeal to the Supreme Court, there is no specific mechanism to appeal against an executive decision in relation to forensic patients. Accordingly, if the Tribunal were to be given the power to make these decisions the provision of a broad avenue of appeal would be an important safeguard on such decision-making. In this way, the Court would have the capacity to review decisions to ensure that matters such as the interests of the forensic patient, the safety of the community, and public interest has been given proper consideration.

5.70 As noted above, most of the submissions supported a framework in which Tribunal decisions would be subject to appeal to the NSW Supreme Court. The Consultation Paper outlined several options for such appeals, including that a forensic patient should have a right of appeal in relation to any decision of the determining body, and the Minister for Health and the Attorney General have a right of appearance, and a right of appeal, on public interest grounds. Most of the submissions expressed general support for this option. , [sic] but several of them qualified their support in some way. One submission suggested that the right of appeal should be confined to issues of public safety, not the public interest. Another submission suggested that the NSW Government generally should have a right of appearance and appeal on public interest grounds.

5.71 In his letter, the Hon Justice McClellan, Chief Judge at Common Law, suggested that such appeals should be by way of rehearing in accordance with the framework operating for appeals to the Court of Appeal under s 75A of the Supreme Court Act 1970 (NSW). His Honour recommended that a single judge of the Common Law Division should hear the appeal, and it would open to the court to receive further evidence. The appeal would be determined on the evidence used in the Tribunal, together with any additional evidence it thinks fit to receive. As the Court would decide the appeal in the light of circumstances existing at the time of the appeal, changes in the facts or law would be taken into account.

5.72 After considering various options for an appeal framework, the Review has decided to recommend that Tribunal decisions should be subject to the following appeal processes: All decisions other than those involving a forensic patient's conditional or unconditional release should be subject to appeal to a single judge of the Common Law Division of the NSW Supreme Court, while release decisions should be subject to appeal to the Court of Appeal.

Appeals should be heard by way of rehearing for error of law or fact, determined on the evidence used in the Tribunal together with any additional evidence the Court thinks fit to receive. It should also be open to the Court hearing the appeal to have the benefit of assessors, as are presently provided for in the 1990 Act, if it considers it appropriate generally, or in the particular case.

Given the public interest involved in such decisions, the Minister for Health and Attorney General should have the right to make submissions at any hearing dealing with the possible grant of conditional or unconditional release, and a right of appeal in relation to such decisions.

5.73 This would ensure that the NSW Government has an adequate opportunity to raise any concerns regarding the potential release of a forensic patient both at the decision-making stage, and after a decision has been made. Given that the Attorney General would be given these opportunities to be heard, it would not be necessary to retain the existing provisions for objection to a proposed release (see chapter 8 for more detail)." 32 Recommendation 15 in the Report was as follows (pages 94-95): " Recommendation 15

Amend the legislation to provide for provide [sic] the following appeals framework in relation to Tribunal determinations: All decisions other than those involving conditional or unconditional release should be subject to appeal to a single judge of the Common Law Division of the NSW Supreme Court, while release decisions should be subject to appeal to the Court of Appeal. Appeals should be heard by way of rehearing for error of law or fact, determined on the evidence used in the Tribunal together with any additional evidence the Court thinks fit to receive. It should also be open to the Court hearing the appeal to have the benefit of assessors if it considers it appropriate generally, or in the particular case. Given the public interest involved in such decisions, the Minister for Health and Attorney General should have the right to make submissions at any hearing dealing with the possible grant of conditional or unconditional release, and a right of appeal in relation to such decisions on the grounds of error of law or fact." 33 As will be seen, s.77A (as enacted) does not seem to accord precisely with the recommended model. 34 The Minister's Agreement in Principle speech (Legislative Assembly, 27 June 2008) mentions the right of appeal available in s.77A, but does not refer to the requirement to first obtain leave. 35 Section 77A MHFP Act provides as follows: "77A Appeals against Tribunal decisions

(1) A forensic patient or correctional patient who is a party to a proceeding before the Tribunal under this Act may appeal to the Supreme Court from any determination of the Tribunal in that proceeding, by leave of the Supreme Court: (a) on a question of law, or

other than a determination referred to in subsection (4).

(2) The Minister for Health may appeal to the Supreme Court from any determination of the Tribunal in a proceeding before the Tribunal under this Act, as of right: (a) on a question of law, or

other than a determination referred to in subsection (5).

(3) A victim of a forensic patient who is a party to proceedings under section 76 may appeal to the Supreme Court from any determination of the Tribunal under that section in that proceeding, by leave of the Supreme Court: (a) on a question of law, or

(4) A person may appeal to the Court of Appeal from a determination of the Tribunal under this Act as to the release of the person, by leave of the Court of Appeal: (a) on a question of law, or

(5) The Minister for Health may appeal to the Court of Appeal from a determination of the Tribunal under this Act as to the release of a person, as of right: (a) on a question of law, or

(6) The Attorney General may appeal to the Court of Appeal from a determination of the Tribunal under this Act as to the release of a person, as of right, on a question of law.

(7) An appeal under this section must be made not later than 28 days: (a) after the determination of proceedings by the Tribunal, or

(b) in the case of an appeal by the Minister for Health or the Attorney General, of notification to the Minister or Attorney General by the Tribunal of the determination of the proceedings, unless the Court extends the period within which the appeal may be made.

(8) An appeal under this section is to be made subject to and in accordance with the rules of the Court.

(9) After deciding the question the subject of an appeal under this section, the Court may, unless it affirms the determination of the Tribunal on the question: (a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or

(b) remit its decision on the question to the Tribunal and order a rehearing of the proceedings by the Tribunal.

(10) If such a rehearing is held, the Tribunal is not to proceed in a manner, or make an order or a decision, that is inconsistent with the decision of the Court remitted to the Tribunal.

(11) If a party has appealed under this section to the Court against a determination of the Tribunal on a question of law, either the Tribunal or the Court may suspend, until the appeal is determined, the operation of any order or determination made in respect of the proceedings.

(12) If the Tribunal suspends the operation of an order or a determination, the Tribunal or the Court may terminate the suspension or, where the Court has suspended the operation of an order or a determination, the Court may terminate the suspension.

(13) If a rehearing is held, fresh evidence, or evidence in addition to or in substitution for the evidence on which the original determination was made, may be given on the rehearing.

(14) A reference in this section to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal.

(15) The Tribunal or any member of the Tribunal is not liable for any costs relating to a determination of the Tribunal, or the failure or refusal of the Tribunal to make a determination, in respect of which an appeal is made under this Act, or of the appeal." 36 Section 77A creates a statutory avenue of appeal to the Supreme Court or the Court of Appeal from a determination of the Tribunal. An appeal is a creature of statute and may take various forms. It has been said that it is always important, where a process called "appeal" is invoked, to identify the character of the appeal and the duties and powers of the court or tribunal conducting it: Walsh v Law Society (NSW) [1999] HCA 33; 198 CLR 73 at 90 [50]. 37 As this is an application for leave to appeal under s.77A(1), it is pertinent to consider the nature of the appeal which the Plaintiff seeks leave to pursue. In a frequently cited judgment in Turnbull v New south Wales Medical Board [1976] 2 NSWLR 281 at 297-298, Glass JA set out the various types of appeal, graded in ascending order, in accordance with the width of the corrective power exercised by the appeal court. In my view, an appeal under s.77A(1) is an appeal by way of rehearing (paragraph (e) of Glass JA's list). If errors of law or wrong findings of fact have occurred below, the Court will determine the appeal, and make such order as is appropriate under s.77A(9). 38 I consider that s.75A Supreme Court Act 1970 applies to an appeal under s.77A(1) from the Tribunal to the Court. Section 75A has effect subject to any Act: s.75A(4). No provision of the MHFP Act operates to exclude the application of s.75A to an appeal under s.77A MHFP Act. I note that the Report of Mr James QC (at [31] above) referred to the submissions of the Chief Judge at Common Law that the legislation should provide for an appeal to a single judge of the Common Law Division within s.75A Supreme Court Act 1970. There is nothing in the Report, or the Agreement in Principle speech, which suggests that s.75A Supreme Court Act 1970 does not apply to a s.77A(1) appeal. 39 The purpose and operation of s.75A Supreme Court Act 1970 were considered by French CJ in Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; 270 ALR 228 at 235-238 [26]-[32]. Section 75A applies to statutory appeals from administrative bodies: s.75A(6); Kostas v HIA Insurance Services Pty Limited at 236 [37]. 40 An appeal under s.77A(1) is not an appeal by way of hearing de novo. It is noteworthy that s.77A does not provide for the court to be assisted by assessors in hearing and deciding an appeal. That part of Recommendation 15 of the 2007 Report (see [32] above) was not taken up by the legislature. Section 77A may be contrasted with s.164(5) and (6) Mental Health Act 2007, where the Court is exercising an appeal function from Tribunal decisions on the civil (and not forensic) side of its jurisdiction. An appeal under ss.163 and 164 Mental Health Act 2007 is by way of hearing de novo: S v South Eastern Sydney and Illawarra Areal Health Service [2010] NSWSC 178 at [22]. Although s.165(1) Mental Health Act 2007 requires the Minister to nominate a panel of assessors to act as assessors in the hearing of appeals by the Court under Chapter 7 (ss.163-168) Mental Health Act 2007 or the MHFP Act, there is no provision in s.77A MHFP Act for the use of assessors in appeals under that section. This is understandable given that an appeal under s.77A is not an appeal by way of hearing de novo. 41 Section 77A(1)(a) provides for an appeal on a question of law. Where an appeal is restricted in this way by statute, it is necessary for the appeal court to confine attention to the restricted nature of the appeal, bearing in mind the principles concerning the distinction between a question of law and a question of fact: Director of Public Prosecutions v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 at 411 [58]-[60]; OV and OW v Members of the Board of the Wesley Mission Council [2010] NSWCA 155 at [2]-[8], [28]-[31]. 42 However, s.77A(1) is not so confined. Perhaps unusually, having provided for an appeal on a question of law, the legislation then provides as well for appeal "on any other question" in s.77A(1)(b). 43 Prima facie, s.77A(1) permits a forensic patient to appeal, by leave of the Supreme Court, from any determination of the Tribunal to which the forensic patient is a party, on any question of law or "on any other question" (a term including any question of fact or question of mixed law and fact), except for a determination of the Tribunal as to the release of the person, where the avenue of appeal lies under s.77A(4) MHFP Act. 44 There are a number of general observations that may be made concerning the terms of s.77A. 45 Firstly, an appeal as of right is available to the Minister for Health or the Attorney General under s.77A(2), (5) and (6). Otherwise, leave to appeal is required under s.77A(1), (3) or (4). 46 Secondly, an appeal as of right under s.77A(4), (5) or (6) lies to the Court of Appeal. Otherwise, an appeal, by leave, lies to the Supreme Court constituted by a single Judge under s.77A(1) or (3) or, by way of an appeal as of right, under s.77A(2). 47 Thirdly, an appeal, whether by leave or as of right, and whether to the Court of Appeal or to the Supreme Court constituted by a single Judge, is available "on a question of law" or "on any other question" under s.77A(1), (2), (3), (4) and (5). An appeal as of right by the Attorney General to the Court of Appeal under s.77A(6) is confined to an appeal "on a question of law". 48 Section 77A(9) provides for the Court to make orders in place of the orders of the Tribunal or to remit its decision on the question to the Tribunal and to order a rehearing of the proceedings by the Tribunal. Section 77A(10) provides for what is to happen "if such a rehearing is held" and s.77A(13) appears to allow the adducing of fresh or additional evidence if a rehearing is held before the Tribunal. In my view, it is necessary to read these subsections against the background that s.75A Supreme Court Act 1970 applies to an appeal under s.77A(1) MHFP Act. 49 One further observation may be made with respect to appeals by forensic patients under s.77A(1). Where the Tribunal is exercising its review function under ss.46 and 47 MHFP Act, the Tribunal will be revisiting the question of the care, treatment and detention of the forensic patient at regular intervals as required by the statute. The position may be contrasted with a court or tribunal which hears and determines criminal, civil or disciplinary proceedings to finality, with orders made which operate subject to appeal. The principle of finality of litigation is pertinent to that type of once-only hearing, where final orders made will stand unless overturned on appeal. 50 However, that is fundamentally different to the Tribunal exercising its functions under ss.46 and 47 MHFP Act, and doing so at regular intervals and with clear opportunities to reach different conclusions depending upon the material placed before the Tribunal. This is especially relevant when a complaint is made of denial of procedural fairness before a Tribunal, in circumstances where a forensic patient will, as a matter of statutory obligation, come before the Tribunal again without the need for any order to be made.

The Proposed Grounds of Appeal 51 Before moving to a determination of the application for leave to appeal, it is appropriate to set out the proposed grounds of appeal as contained in the Further Amended Summons filed by the Plaintiff's then solicitors on 27 July 2010. Those grounds are as follows:

(1) The Tribunal erred in that it failed to exercise its jurisdiction under s,36 of the Mental Health Act 2007 .

(2) The Tribunal erred in ruling that the changes sought by the Plaintiff were outside the ambit of care, detention and treatment as provided for in s.47 of the MHFP Act.

(3) The Tribunal erred in that it failed to afford to the Plaintiff procedural fairness in refusing to grant an adjournment of the proceedings pursuant to s.36 of the Mental Health Act 2007 to allow time for consideration of the documents furnished to it by the Plaintiff referred to in paragraph 4 below.

(4) The Tribunal erred in that it failed to exercise its discretion by failing to consider at all relevant documents furnished by the Plaintiff, namely: (a) a letter from the Plaintiff's Primary Carer to the First Defendant dated 20 August 2009: and

(b) written submissions on behalf of the Plaintiff and supporting documents prepared by the Plaintiff's Primary Carer.

(5) The Tribunal erred by giving insufficient or no weight to evidence furnished by the Plaintiff, namely the report of Dr Westmore dated 16 July 2009.

(6) The Tribunal erred by giving undue and impermissible weight to the multi-disciplinary report of 11 February 2010.

Submissions of Parties 52 Ms Johnson submitted that the Plaintiff should be refused leave to appeal. In helpful written submissions, Ms Johnson expanded upon these arguments by reference to authority. She submitted that the Plaintiff was asking both the Tribunal and the Court to make effectively identical orders in concurrent proceedings, that there was no live legal issue between the parties to the appeal and that grounds of appeal relating to the failure to grant an adjournment, and the weight to be given to evidence before the Tribunal, were moot given the availability of the Tribunal to sit, and to hear and determine all matters relevant to the review process. It was submitted that there was no practical utility in the Court granting leave to appeal in these circumstances. 53 It was submitted for the Plaintiff that both the Tribunal and the Court were not being invited to make identical orders in relation to concurrent proceedings, that there were live legal issues remaining to be determined and that there were issues and questions of general interest which arose so that leave to appeal ought be granted.

Determination of Leave Application 54 The present application for leave arises under s.77A(1) MHFP Act. The nature of the appeal provided for in that provision should be kept in mind (see [36]ff above). 55 The breadth of the grounds of appeal which may be relied upon in an appeal by a forensic patient under s.77A(1) emphasises the significance of the gatekeeping function which the Court must exercise in determining whether to grant leave to appeal under that subsection. 56 In considering an application for leave to appeal, the Court will keep in mind a number of matters. Firstly, the Tribunal is a specialist statutory body charged with important responsibilities concerning forensic patients, including persons who have been found not guilty of serious crimes by reason of mental illness. The statutory scheme is such that the Plaintiff will not be released until the Tribunal is satisfied that the safety of the Plaintiff, or any member of the public, will not be seriously endangered by his release, with this process involving regular reviews under s.46 MHFP Act: R v Rodriguez [2010] NSWSC 198 at [56]-[57]. 57 Where leave to appeal is sought under s.77A(1)with respect to questions of fact, and in particular questions concerning the management and clinical treatment of a forensic patient, the Court should keep squarely in mind the specialist nature of the Tribunal in determining whether leave to appeal ought be granted: Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347 at [16]-[19], [80]-[81]; Lindsay v Health Care Complaints Commission [2005] NSWCA 356 at [46]. This Court is not a specialist tribunal and has no medical knowledge of its own. There is no provision ion s.77A for the use of assessors in an appeal under that section. The Court should act cautiously in considering whether leave to appeal ought be granted where the appeal seeks to challenge practical and clinical aspects of the care, management, medical treatment and place of detention of a forensic patient: cf Lindsay v Health Care Complaints Commission at [46]; Chowdhury v Health Care Complaints Commission [2010] NSWCA 56 at [58]. 58 It has been said that a body such as the Guardianship Tribunal is not necessarily a specialist tribunal. Young J (as his Honour then was) said in Re R [2000] NSWSC 886 at [16]-[18]: "16 The submission was made during addresses that on this type of appeal the Court should, unless the contrary clearly appears, merely follow what the specialist tribunal has done.

17 I am not at all sure that this is correct. There are three overlapping principles: A. Where there is a specialist tribunal, like the General Medical Council in England, where the tribunal consists of the top people in a profession, a court of review should not lightly interfere with a finding of fact made by that tribunal.

B. Where there is an Act of Parliament committing the ordinary fact finding task to a tribunal 'it would not be right to upset them and have fresh hearings on points of meticulous criticism of their reasoning'. The Court should review the decision 'broadly and fairly' and not interfere as long as the tribunal members have 'directed themselves properly and fairly on the facts and they have not gone wrong in law', per Lord Denning MR, Retarded Children's Aid Society Ltd v Day [1978] 1 CR 437, 443.

C. Where a referee makes a finding or exercises a discretion on behalf of the Court, that decision should be accepted by the Court on review unless shown to be so flawed as to warrant reconsideration: Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409, 420.

18 The Guardianship Tribunal is not a specialist tribunal in the sense of proposition A. The mere fact that it has a legal member, a medical member and a member who has had day to day experience with the problems of mental disability does not make it such. However, it does fall within proposition B. But, as this appeal is on law only, it is unnecessary to pursue this matter further." 59 It may be said that the Tribunal, like the Guardianship Tribunal, is not a specialist tribunal in the sense used by Young J in the first proposition in Re R at [17]. However, the Tribunal includes specialist medical members and operates in a specialised field. In my view, it may be described appropriately as a specialist tribunal, in the same way as that term has been applied to disciplinary bodies such as the Medical Tribunal which include legal, medical and community members. 60 I accept the submissions of the Second Defendant with respect to the requirement of leave to appeal in s.77A(1) MHFP Act. The inclusion of a requirement of leave to appeal is designed to restrict the appeal procedure to appropriate matters, and thereby promote the efficiency of the Court's appeal procedures: Coulter v The Queen [1988] HCA 3; 164 CLR 350 at 359. It is, of course, unnecessary and unwise to lay down rigid or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Limited v Philip Morris Inc [1981] HCA 39; 148 CLR 170 at 177. However, leave to appeal will not ordinarily be granted where the proposed appeal is manifestly untenable or would be futile or is lacking in practical utility, or there is no live issue remaining between the parties. It ought not be expected that leave to appeal will be granted to allow ventilation of academic issues or for the Court to give a form of advisory opinion. 61 It is important to keep in mind that for leave to appeal to be granted, the Court must be satisfied not merely that there is a reasonably arguable case of error, but also that there is a reasonable prospect of substantive relief being obtained: Cachia v Grech [2009] NSWCA 232 at [13]. 62 With these general observations in mind, I turn to consider whether leave to appeal should be granted to the Plaintiff by reference to the grounds of appeal identified in the Further Amended Summons filed 27 July 2010 (set out at [51] above). 63 Proposed Grounds 1 and 3 contend that there was a denial of procedural fairness because of a failure to adjourn the review hearing on 11 February 2010 (by reference to s.36 Mental Health Act 2007). In my view, it is plain that s.36 Mental Health Act 2007 relates to a "mental health inquiry" under that Act, and does not apply to a review by the Tribunal with respect to a forensic patient under the MHFP Act. The Tribunal does have a general power to grant adjournments under s.155 Mental Health Act 2007. However, the power to grant an adjournment under that provision must be read as being subject to the Tribunal's obligation to review a forensic patient every six months under s.46 MHFP Act. 64 For the purpose of this application, it is not necessary to form a view as to the merits of the complaints concerning the Tribunal proceeding on 11 February 2010 with the review hearing. The legislative scheme requires the Tribunal to conduct a further review, as it sought to do on 30 September 2010. There will be an opportunity for the Plaintiff to place such material as he sees fit before the Tribunal at a review hearing which the President of the Tribunal has indicated can proceed by arrangement with the Tribunal. 65 The Tribunal may reasonably expect that any written materials upon which the Plaintiff will seek to rely at that review hearing, will be provided to the Tribunal in advance, including reports of Dr Westmore. 66 Although there may be circumstances in which the Court would grant leave to appeal where it is said that the Tribunal has denied procedural fairness to a forensic patient, I do not think that leave should be granted here. There is no practical utility in this Court entertaining grounds of appeal concerning the non-adjournment of a review hearing that took place in February 2010, when a further review hearing may (and must) proceed before the Tribunal without any order of this Court. 67 I would refuse the Plaintiff leave to appeal with respect to the matters raised in proposed Grounds of Appeal 1 and 3. 68 Proposed Ground of Appeal 2 contends that the Tribunal erred in ruling that the changes sought by the Plaintiff were outside the ambit of care, treatment and detention as provided in s.47 MHFP Act. As Ms Johnson acknowledged, if there was a live issue of this type in the proceedings, then leave to appeal may well be granted. 69 However, both the Tribunal and the Second Defendant accept that, as a matter of jurisdiction, it is open to the Tribunal to consider whether orders of the type sought by the Plaintiff (as set out at [26] above) may be made following a review hearing under s.47 MHFP Act. It is accepted that any order which the Tribunal may make under s.47(1) as to the Plaintiff's continued care, treatment or detention in a mental health facility, may include orders of the type sought by the Plaintiff. This position was communicated by the Crown Solicitor's Office to the then solicitors for the Plaintiff by letter dated 27 July 2010, and has been expressed consistently thereafter. 70 Thus, there is no live legal issue as between the parties concerning this question. It will be a matter for the Tribunal, having regard to the material placed before it, to decide whether matters of that type ought be included in any order under s.47 MHFP Act. That, of course, is a matter for the Tribunal to determine in the exercise of its statutory jurisdiction. 71 In these circumstances, there is no live legal issue between the parties and there is no practical utility in leave being granted to the Plaintiff to advance proposed Ground 2. I would refuse the Plaintiff leave to advance that ground. 72 Proposed Grounds 4, 5 and 6 contend that the Tribunal on 11 February 2010 failed to exercise its discretion, by failing to consider certain material, or by giving insufficient or no weight to certain evidence, or by giving undue and impermissible weight to other documentary evidence. 73 Once again, the practical response to these complaints is that the Tribunal is obliged to undertake a review hearing with respect to the Plaintiff, and sought to do so on 30 September 2010. There will be an opportunity for the Plaintiff to adduce relevant material at a review hearing and to make submissions to the Tribunal by reference to that material. Of course, that material will reflect the contemporary circumstances surrounding the Plaintiff at the time of the review hearing, which may or may not bear similarities to his circumstances at the time of the review hearing on 11 February 2010. All of this may happen without any order of this Court. 74 In the context of appeals concerning sentence, it has been observed that questions of weight in the exercise of a discretion are matters for the first-instance decision maker, and that the circumstances in which matters of weight will justify intervention by an appellate court are narrowly confined: Ryan v R [2009] NSWCCA 183 at [33]. Where leave to appeal is sought under s.77A(1) and complaint is made concerning the weight given to certain evidence by the Tribunal, then care is required on the part of this Court, given the specialist qualifications and skills of the Tribunal referred to earlier in this judgment. 75 In my view, there is no practical utility in this Court granting leave to appeal to allow the Plaintiff to advance Grounds 4, 5 and 6. I would refuse the Plaintiff leave to appeal in that respect. 76 Mr Collins submitted that leave to appeal should be granted to allow issues and questions of general interest to be ventilated in this Court concerning the care, treatment and detention of the Plaintiff, and the approach of health authorities and the Tribunal to his case. In reality, this submission invites the Court to grant leave to appeal for the purpose of conducting a type of wide-ranging inquiry into the Plaintiff's case and various complaints which have been raised concerning the approach of health authorities to him. 77 That is not the purpose of the avenue of appeal under s.77A(1) MHFP Act. The avenue available to the Plaintiff, as a forensic patient, is to seek leave to appeal to this Court from any determination of the Tribunal in a proceeding to which he is a party. 78 During the course of Mr Collins' submissions, it became clear that the desire of the Plaintiff was to effectively bypass the Tribunal and come directly to the Court, seeking orders of the type set out at [26] above. It is the Plaintiff's intention, if leave is granted, to rely before this Court on the reports of Dr Westmore dated 20 September 2010 and 22 November 2010. Those reports have not been provided to the Tribunal, and the Tribunal has not made a determination concerning the Plaintiff after an opportunity to consider the reports and submissions made by reference to them. 79 This is not the function of the Court on an appeal under s.77A(1) MHFP Act. This view is reinforced by a perusal of Dr Westmore's reports, which confirm that clinical decisions and judgments are required concerning aspects of the management and treatment of the Plaintiff. The statutory scheme clearly envisages that material of this sort should be placed before the Tribunal, the primary decision maker with specialist knowledge and experience, for the purpose of making orders under s.47 MHFP Act. 80 In this case, there is no live legal issue as between the parties, nor is there any utility in this Court embarking on an appeal with respect to a review hearing held more than nine months ago. The Tribunal is obliged to undertake a review hearing concerning the Plaintiff for the purposes of making an order under s.47 as to his continued care, treatment or detention, by reference to contemporary evidence which bears upon those matters. 81 The Tribunal is entitled to expect that the Plaintiff, and those representing him at a review hearing, will seek to assist the Tribunal in the discharge of its statutory functions and responsibilities. The orderly presentation of material before the Tribunal, in a timely fashion, accompanied by submissions made by reference to that material, ought serve to advance the interests of the Plaintiff in the areas of clinical treatment, management, care and detention arising for consideration.

Costs 82 In the event that the Court determined to refuse the Plaintiff leave to appeal, the Second Defendant sought an order for costs against the Plaintiff. It was submitted that costs should follow the event. Further, Ms Johnson submitted that the letter from the Crown Solicitor's Office to the Plaintiff's then solicitors dated 27 July 2010 had communicated a clear way forward, and the lack of practical utility in the Plaintiff pressing his application for leave to appeal. That letter contained an offer that the proceedings be discontinued by the Plaintiff with no order as to costs, an offer not accepted by the Plaintiff. 83 In the course of her fair and capable submissions, Ms Johnson drew to my attention the decision of Rothman J in Adams By Her Next Friend O'Grady v State of New South Wales (No. 2) [2008] NSWSC 1394, where his Honour made an order for costs in favour of a successful defendant against a plaintiff, but further ordered that the defendant be restrained from seeking to execute the costs order against the plaintiff's tutor. Having drawn the Court's attention to this decision, Ms Johnson submitted that the circumstances of the present case were different, and that a similar course ought not be taken in this case. She submitted that three firms of solicitors have come and gone from these proceedings, acting on the Plaintiff's behalf, and that Mr Collins, as the Plaintiff's tutor, has maintained the proceedings, and pressed them to finality, so that an order for costs is appropriate, with no restriction upon the ability of the Second Defendant to seek costs from the tutor. 84 Mr Collins opposed an order for costs, submitting that as the Plaintiff's primary carer, he had sought to press the application for leave to appeal in the interests of the Plaintiff. 85 The Court has a discretion with respect to costs: s.98 Civil Procedure Act 2005. The general rule is that costs follow the event: Part 42 Rule 42.1 Uniform Civil Procedure Rules 2005. 86 One of the purposes of appointing a tutor is to have a person on the record who is personally liable for costs: Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62 at 113. That means a defendant may enforce a costs order directly against a tutor where the plaintiff is legally incapacitated: Yakmor v Hamdoush (No. 2) [2009] NSWCA 284 at [24]-[25], [44]-[45]. 87 In the circumstances of this case, I see no reason to depart from the usual rule that costs should follow the event. The Plaintiff's then legal representatives were placed on notice on 27 July 2010 of the Second Defendant's position with respect to costs, and were given an opportunity to discontinue the proceedings at that time with no costs consequences. Instead, the Plaintiff has pressed on with the proceedings, in circumstances where the outcome of the application was more than reasonably predictable. 88 In Adams By Her Next Friend O'Grady v State of New South Wales, Rothman J concluded at [7]-[9] that, in the circumstances of that case, it would be a travesty of justice if the State of New South Wales were to pursue the tutor for costs separately and distinctly from the Plaintiff. 89 In my view, the circumstances of that case are remote from those of the present case. Here, the Plaintiff has been represented by three different solicitors during the course of the proceedings, with instructions to the last solicitor being withdrawn by the tutor on 16 November 2010. The Second Defendant has made plain, for some months, the basis upon which the present application for leave to appeal would be opposed, and the Plaintiff has determined nevertheless to proceed with the application. In my view, the Second Defendant's submissions were clearly and identifiably correct and that has been apparent for some time. A consequence of the Plaintiff persisting with this application was that the Tribunal determined not to proceed with the review hearing on 30 September 2010, in circumstances where counsel appearing for the Plaintiff informed the Tribunal that the Plaintiff did not wish to willingly participate in that process (because of this appeal) and, in any event, contended that the review hearing ought be adjourned to ensure that Dr Westmore's report was available. 90 I have taken into account the fact that this is the first application for leave to appeal under s.77A(1) MHFP Act in considering whether an order for costs should be made. Notwithstanding the novelty of the application, I am clearly of the view that the Plaintiff had no reasonable prospect of obtaining leave to appeal in this case. I am satisfied that costs should follow the event, and that there is no good reason why the Second Defendant ought not be able to seek to recover costs from the Plaintiff's tutor.

(a) I refuse the Plaintiff leave to appeal under s.77A(1) Mental Health (Forensic Provisions) Act 1990 ;

(b) the Further Amended Summons filed on 27 July 2010 is dismissed;

(c) I order the Plaintiff to pay the Second Defendant's costs of and incidental to the proceedings and those costs may be recovered from the Plaintiff's tutor, Brett Anthony Collins;

(d) I make no order with respect to the costs of the First Defendant.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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