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[2025] NSWCA 231
procedural. The Court made an interim extension order under s 130 until 5pm on 19 December 2025, expedited the appeal for hearing on 6 November 2025, ordered the appellant to pay the respondent’s costs of the...
The Supreme Court refused to extend Dale Haines’s forensic-patient status, and the Attorney General appealed. The existing interim order was due to expire before the appeal could be heard. Kirk JA decided that the appeal was a separate set of proceedings for the statutory interim-order provisions, so the Court of Appeal could make a new interim extension order without being prevented by the three-month period that had applied to the earlier order. The order was made until 19 December 2025, and the appeal was expedited to 6 November 2025. The Court did not decide whether the Supreme Court was right to refuse the longer extension.
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2,275 words · generated 06/10/2026
The decision is an interlocutory ruling by Kirk JA in the New South Wales Court of Appeal. It concerns an interim extension order for Dale Haines, a forensic patient, while the Attorney General’s appeal against the refusal of a longer extension was pending. The Court decided whether it could make a further interim order and how quickly the appeal should be heard. It did not determine the merits of the appeal.
10 cited instruments linked from this judgment.
The Attorney General had applied to the Supreme Court for a two-year extension of Haines’s forensic-patient status. On 26 September 2025, the primary judge refused that application. The Attorney General appealed under s 135 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act). The existing interim extension order was due to expire on 24 October 2025, while the appeal was listed for 6 November 2025 ([1], [7]–[10]).
The underlying evidence mattered to the interim-order question, but Kirk JA did not resolve it. The primary judge’s summary described Haines as having chronic schizophrenia, substance use disorder and cognitive impairment, alongside a history of robbery and assault offending ([4]–[5]). Two experts disagreed principally about whether risk could be adequately managed without continued forensic-patient status. Dr Elliott considered that care, treatment, support and a Community Treatment Order could manage the risk. Dr Youssef considered ongoing forensic-patient status necessary to manage it ([13]–[16]). The primary judge preferred neither expert simply because one view had been presented, and refused the extension application ([17]).
The Attorney General’s appeal raised two grounds. One challenged the primary judge’s approach to whether court-appointed experts with differing opinions should ordinarily give oral evidence. The other alleged error in the consideration of less restrictive means of managing risk ([18]). Kirk JA described those grounds as reasonably arguable, but said that it was neither possible nor appropriate to assess their prospects in detail on the motion, without written submissions directed to them ([19]).
The Attorney General sought a new interim extension order for up to three months and, alternatively, expedition of the appeal ([2]). Kirk JA granted the interim order until 5pm on 19 December 2025, ordered a hearing on 6 November 2025, and made filing, directions and costs orders ([44], [51]). The respondent was not currently detained, living in supported independent living accommodation under conditional release granted by the Mental Health Review Tribunal ([43]).
The central question was statutory construction: did the three-month limit in s 131(2) prevent the Court of Appeal from making an interim extension order because three months had elapsed, or was about to elapse, from the beginning of the order made at first instance? Kirk JA treated ss 130 and 131 as connected. Section 130 supplies the power to make an interim extension order in “proceedings on an application for an extension order”; s 131 sets the term and limits renewal of an order “of that kind” ([20], [28]).
The word “proceedings” was not defined in the Act. Kirk JA observed that it could refer broadly to the matter, potentially encompassing an appeal, or could describe a particular legal method for moving a court to act. Authorities had treated appeals as separate proceedings in other contexts, but Kirk JA stressed that those cases showed the appellant’s construction was open, not that they resolved the question under this Act ([29]).
The Court’s earlier decision in Attorney General of New South Wales v WB [2020] NSWCA 7 did not settle the issue. The parties and Court in WB had assumed that the three-month period encompassed an interim order made on appeal, but the issue had not been argued. Kirk JA relied on the principle that a point not in dispute does not produce a legal rule about that point ([25]–[26]).
Kirk JA’s construction was supported by the statutory context and purpose. An interim order gives the Supreme Court a limited period to consider an extension application. The Act also requires an application to be made within a restricted period before expiry and provides for a preliminary hearing within 28 days ([32]). But the Act expressly provides for appeals from decisions to make or refuse an extension order. If the first-instance three-month period also governed the appeal, an appeal could be left with little or no time to be filed, prepared, heard and determined ([34]). That could make the appeal right ineffective in some cases.
The decision also considered the Act’s provision for remitter. The Court of Appeal can remit a matter to the Supreme Court, and the Act addresses interim orders in that context ([36]–[38]). Kirk JA reasoned that the possibility of remitter supported a construction under which the time limit for an interim order made in the Court of Appeal runs from the first such order made there ([40]). He did not decide whether remitter itself would start a new three-month period.
The Court then considered the two conditions in s 130. First, the existing order would expire before the appeal was determined, since expiry was set for 24 October and the hearing was listed for 6 November ([41]). Second, the matters alleged in the supporting material, including the notice of appeal, could justify an extension order if made out. The expert disagreement concerned the evaluative question of whether risk was adequately managed without the order. Kirk JA considered it open to the Court, on the appeal, to prefer Dr Youssef’s view ([42]). This was a threshold finding for interim relief, not a determination of which expert was correct or whether the appeal should succeed.
Finally, Kirk JA considered that maintaining the status quo was appropriate until the appeal was heard, noting that Haines was living in the community rather than detained ([43]). He fixed the interim order’s end date at 19 December 2025, which he considered sufficient for the appeal to be heard and either determined or, if appropriate, for the order to be extended ([44]).
Before this ruling, the relevant statutory text provided that the Supreme Court could make an interim extension order in proceedings on an extension application, and that interim orders could not provide for more than three months of extension in total ([20]). The predecessor provisions in the Mental Health (Forensic Provisions) Act 1990 (NSW) were materially mirrored by the current provisions ([21]).
The Court of Appeal had previously considered the predecessor regime in WB. That case addressed whether a person needed to be subject to an existing limiting term or extension order when the extension order was made. It did not decide the meaning of “proceedings” for the purpose of an interim order made during an appeal. Kirk JA treated the assumption in WB about the three-month period as non-binding because the issue had not been argued ([25]–[26]).
After this ruling, the Court of Appeal’s construction for the circumstances before it was that an appeal is separate “proceedings” from the first-instance application for the purpose of ss 130–131. A three-month limit on an interim extension order made by the Court of Appeal therefore runs from when the Court first makes an order of that kind ([27]–[29], [40]). The judgment does not state that every use of “proceedings” in the Act, or in other statutes, necessarily treats an appeal as separate. Its reasoning is tied to the text, structure and purpose of these provisions.
The decision also does not resolve the limit’s operation after a remitter to the Supreme Court. Kirk JA expressly left open whether remitted proceedings should be treated as new proceedings that begin a fresh period ([39]–[40]). Nor did the judgment determine whether the primary judge was right to refuse the requested two-year extension. Those questions remained distinct from the interlocutory ruling.
At [27], Kirk JA states that the appeal is not barred from receiving an interim extension order. In plain English, the fact that the order made at first instance was approaching the three-month limit did not, by itself, prevent the Court of Appeal from making an order while it dealt with the appeal.
At [34], Kirk JA explains the practical difficulty with applying one continuous three-month period across the first-instance hearing and appeal. A Supreme Court decision might be made near the end of the period, leaving insufficient time for an appeal to be prepared and decided. In plain English, a reading that routinely leaves no meaningful time for an appeal sits uneasily with the Act’s express provision for appeals.
At [35], Kirk JA balances the statutory scheme’s constraints on liberty against the need to protect public safety and decide cases carefully. The judgment says the time limits should not be understood in a way that commonly deprives the parties and Court of the opportunity to deal with appeals with appropriate care and diligence.
At [40], Kirk JA gives the construction adopted for the order before him: the relevant three-month period for an interim extension order made in the Court of Appeal runs from when that Court first makes such an order. In plain English, an appellate order has its own starting point for the statutory time limit.
At [42], Kirk JA explains why the second s 130 threshold was met at the interim stage. The experts disagreed about whether the risk could be managed without an extension order, and the Court could potentially prefer the view that an extension was needed. This did not decide which view should ultimately prevail.
At [43]–[44], Kirk JA explains the practical order. The Court maintained the existing position temporarily, while setting an end date intended to cover the period needed to hear and determine the appeal.
The ruling is most directly relevant where a forensic-patient extension application has been refused at first instance, an appeal is pending, and an existing interim extension order is due to expire before the appeal can be determined. In those circumstances, the judgment supports the proposition that the Court of Appeal may treat the appeal as separate proceedings for the purpose of ss 130–131 and consider making a new interim order ([24], [27]–[29], [40]–[42]).
The statutory threshold remains important. There must be an existing limiting term or extension order that will expire before the proceedings are determined, and the supporting material must allege matters which, if proved, would justify an extension order ([20], [41]–[42]). A mere appeal, without those statutory elements, is not shown by this judgment to be enough.
The facts here included a dispute between experts about the effectiveness of less restrictive community management, an imminent expiry date, and a hearing date after that expiry. Kirk JA also took account of the respondent’s circumstances in the community ([13]–[16], [41]–[44]). The judgment does not establish that the same interim outcome follows whenever experts disagree or whenever an appeal is filed. It records an evaluative decision on the statutory threshold and the circumstances before the Court.
The judgment supplies no information about later judicial treatment. It was decided on 20 October 2025, and the text contains no subsequent cases applying, distinguishing or reconsidering its construction. It would therefore be unsupported to describe a later line of authority or to state that the interpretation has been adopted elsewhere.
The decision itself discusses prior authority. It distinguishes the significance of WB by explaining that the point now decided was assumed rather than contested there ([25]–[26]). It refers to Cheney v Spooner for the possible meaning of “proceedings” and to several Court of Appeal decisions as examples in which an appeal was treated as a separate proceeding in other contexts ([29]). Kirk JA makes clear that those decisions show the construction is available, but do not settle the construction of ss 130–131.
The judgment also refers to Ward v Hoenig and Commissioner of Police (NSW Police Force) v Naser as examples of substantial expedition where circumstances and justice require it ([47]). Those cases are cited in support of expedition, not as authorities on the meaning of “proceedings” or the three-month limit.
The principal express open question is what happens to the three-month period if the Court of Appeal remits a matter to the Supreme Court. Kirk JA said that the textual argument for treating the remitted matter as new proceedings was less clear, and it was unnecessary to decide the point in this motion ([39]–[40]).
The appeal’s merits were also unresolved. The Court had not decided whether the primary judge erred in the approach to oral evidence from experts, or whether the primary judge insufficiently considered whether a Community Treatment Order would adequately manage risk in practice ([18]–[19]). Kirk JA considered the grounds reasonably arguable, but declined to assess their prospects in detail.
The order’s continuation or revocation could depend on later events. Kirk JA observed that the Court could revoke the interim order under s 133(3) if circumstances changed sufficiently, and that dismissal of the appeal would presumptively satisfy that criterion, subject to countervailing considerations such as a mooted special-leave application ([45]). That observation did not determine what would happen on any future application.
Finally, the judgment does not define the full reach of “proceedings” beyond this particular statutory setting. It resolves the issue before the Court by relying on the relationship between ss 130 and 131, the statutory appeal right, the possibility of remitter, and the consequences of applying one continuous period ([27]–[40]). Any application in a materially different statutory or procedural setting would require its own analysis.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Attorney General for New South Wales v Haines (BHT Barbara Ramjan) [2025] NSWCA 231
Hearing dates: 20 October 2025
Date of orders: 20 October 2025
Decision date: 20 October 2025
Before: Kirk JA
Decision: (1) Pursuant to s 130 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the respondent is subject to an interim extension order until 5pm on 19 December 2025.
(2) The appeal is expedited and listed for hearing on 6 November 2025.
(3) The appellant is to pay the respondent’s costs of the motion.
(4) The appellant is to file and serve a white folder by 24 October 2025, with the white folder to stand as appeal books.
(5) The appellant is to file and serve written submissions on the appeal by 24 October 2025.
(6) The respondent is to file and serve written submissions on the appeal, along with any notice of contention and/or cross-appeal and/or application to rely on further evidence, by 31 October 2025.
(7) The appellant is to file and serve any written submissions in reply by 12:00 noon on 4 November 2025.
(8) The parties’ submissions are to comply with rule 51.36 of the Uniform Civil Procedure Rules (NSW).
(9) The appellant is to email the Registrar with electronic copies of all grounds of appeal and all parties’ written submissions, pursuant to paragraph 27 (and, as applicable, paragraph 28) of Practice Note SC CA 01, suitable for publication (with redactions as required), certified as such in each respective document by the lawyer responsible for filing the same, by 12:00 noon on 4 November 2025.
(10) The appeal is listed for directions before the Registrar at 9:30 AM on 5 November 2025, which may be vacated if the preceding order has been complied with.
Catchwords: MENTAL HEALTH — Forensic patient — Extension of status as forensic patient — interim extension order granted pending resolution of Attorney General’s application for extension order — application for extension order refused by Supreme Court — refusal appealed to Court of Appeal — notice of motion filed by Attorney General seeking new interim extension order — whether three month limit on interim extension orders prevents granting of new interim extension order in appeal proceedings — meaning of “proceedings”
Legislation Cited: Mental Health (Forensic Provisions) Act 1990 (NSW) Sch 1 cll 10-11
Mental Health (Forensic Provisions) Amendment Act 2013
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 69, 122, 124(2), 126, 127(3), 130,131, 135, 136
Supreme Court Act 1970 (NSW) s 44
Cases Cited: Attorney General for New South Wales v Haines (Final) [2022] NSWSC 930
Attorney General for New South Wales v Haines (Preliminary) [2025] NSWSC 774
Attorney General of New South Wales v WB [2020] NSWCA 7
Cheney v Spooner (1929) 41 CLR 532; [1929] HCA 12
Coleman v Power (2004) 220 CLR 1; [2004] HCA 39
Commissioner of Police (NSW Police Force) v Naser [2025] NSWCA 224
CSR Limited v Eddy (2005) 226 CLR 1; [2005] HCA 64
Distinctive FX 9 Pty Limited v Statewide Developments Pty Limited [2012] NSWCA 393
Diveva Pty Limited v Nominal Defendant [2013] NSWCA 325
Habib v Radio 2UE Sydney Pty Ltd [2013] NSWCA 347
Keynes Capital Global Limited v Guo (No 2) [2020] NSWCA 336
Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37
Smith v Yusen Daly Smith International (in liq) (2001) 53 NSWLR 385; [2001] NSWCA 458
Taouk v Assure (NSW) Pty Ltd [2019] NSWCA 224
Ward v Hoenig [2025] NSWCA 180
Texts Cited: New South Wales Law Reform Commission, People with cognitive and mental health impairments in the criminal justice system: criminal responsibility and consequences (May 2013)
Category: Procedural rulings
Parties: Attorney-General of New South Wales (Appellant)
Dale Haines (Respondent)
Representation: Counsel:
P Coady SC / C Palmer (Appellant)
P Griffin SC / T Spohr (Respondent)
Solicitors:
Crown Solicitor’s Office (Appellant)
Legal Aid NSW (Respondent)
File Number(s): 2025/396912
Publication restriction: Nil
The respondent in this matter is the subject of an interim extension order (IEO) under ss 130-131 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act). That order expires in four days’ time. The IEO was made in proceedings in which the Attorney General had sought that the Supreme Court make an extension order with respect to the respondent for a further two years. The primary judge, Coleman J, subsequently refused the application for an extension order: Attorney-General for New South Wales v Dale Haines (BHT Barbara Ramjan) (Final) [2025] NSWSC 1117 (J). The Attorney appeals by right from that decision pursuant to s 135 of the Act.
In that context the appellant has applied for:
a further IEO for a period of three months (or such shorter time as the Court permits) under ss 130-131 of the Act;
in the alternative, expedition of the hearing of the appeal – in particular, if possible, such that the appeal is heard and determined by the end of this week.
The appellant’s primary position involved asking the Court to make an IEO. The application for expedition was very much its secondary position. It is important to make that point because if the conclusion I reach below about the three month time period is in error, on current authority that would mean that no further extension order could be granted with respect to the respondent after this Friday. That risk was accepted by the appellant.
[11] The defendant has been diagnosed with chronic schizophrenia and substance use disorder. His schizophrenic illness is characterised by auditory hallucinations, command hallucinations, delusions of reference, persecutory and grandiose delusions, paranoia, and thought disorder. His symptoms of schizophrenia worsen in the context of substance use and non-compliance with treatment. The defendant also suffers from a cognitive impairment which is likely contributed to by his brain injury, chronic psychotic illness and prolonged substance use.
[12] The defendant’s criminal history commenced in 1999, at the age of 18, with 4 charges of robbery with actual violence, in relation to which he served 7 months imprisonment in Queensland. The defendant’s subsequent criminal history in New South Wales includes offences of assault occasioning actual bodily harm, possession of prohibited drugs, and multiple counts of robbery armed with an offensive weapon.
In September 2014 the respondent was arrested and charged with a series of armed robbery and assault offences in relation to robberies of service stations and a bank. The District Court found him unfit to be tried. Following a special hearing, that Court found on the evidence before it that the respondent had committed six armed robberies, one count of face disguised with intent to rob, one count of robbery, one count of assault occasioning actual bodily harm, and one common assault. The Court imposed a series of limiting terms which expired on 24 April 2022.
On 8 July 2022 Yehia J made orders extending the respondent’s status as a forensic patient for three years, commencing on 24 July 2022: Attorney General for New South Wales v Haines (Final) [2022] NSWSC 930.
In April 2025 the appellant sought a further two-year extension of that order. On 22 July 2025 Harrison CJ at CL made an interim extension order commencing on 24 July 2025: Attorney General for New South Wales v Haines (Preliminary) [2025] NSWSC 774.
The application for the two year extension was then heard by the primary judge on 1 September 2025. On 26 September 2025 his Honour refused the application.
The current IEO remains in place but expires on 24 October 2025, being this coming Friday.
On 9 October 2025, 13 days after judgment had been handed down, the Crown Solicitor’s Office (CSO) notified Legal Aid, solicitor for the respondent, that it had “received urgent instructions from the Attorney General to advise on the prospects of an appeal”. Neither that letter nor the affidavit of the relevant CSO solicitor says when those instructions were given. I infer it was only shortly before the letter was sent. The notice of appeal and motion were filed six days later, on 15 October 2025 last week. That was 19 days after the primary judge’s decision. Given the importance of what was at stake, and the fact that the IEO in place was soon to expire, it cannot be said that the appellant acted with due diligence.
(1) A forensic patient can be made the subject of an extension order as provided for by this Part if and only if the Supreme Court is satisfied to a high degree of probability that—
(a) the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and
(b) the risk cannot be adequately managed by other less restrictive means.
When such an order is made the person’s status as a forensic patient is thereby continued. The Court is required to notify the Mental Health Review Tribunal of the making of the order (s 127(3)). The person then continues to be subject to the regime under the Act dealing with such persons, under the direction and control of the Tribunal.
As provided for by the statutory scheme, Harrison CJ at CL had made orders requiring that reports by two experts be prepared for the purpose of the final hearing (s 126(5)(a)). The experts reached different conclusions. Despite that fact, neither side required the experts to give oral evidence. The opinion of Dr Gordon Elliott, a psychiatrist, was summarised by the primary judge as follows:
[50] Dr Elliott opined that “there remains a risk that [the defendant] may cause serious harm to others if he ceases to be a forensic patient”. Dr Elliott observed that the most likely nature of the serious harm would be the defendant’s return to armed robbery to support a relapse into substance use. Dr Elliott considered that the likelihood of such harm would be critically dependent on the defendant remaining abstinent from illicit substance use, particularly methamphetamines. Dr Elliott considered that a return to methamphetamine use would be a critical event and dramatically increase the likelihood of the defendant causing serious harm to others. …
[54] Dr Elliott opined that the defendant would not present as a continued risk of serious harm to others if he ceased to be a forensic patient, so long as the risk he posed was managed by a combination of the defendant’s existing care, treatment and support and with a CTO. Dr Elliott considered this would be the least restrictive means of managing the defendant’s risk of serious harm to others. Dr Elliott felt that the defendant did not continue to pose an unacceptable risk of serious harm given his compliance with his current care and treatment.
Dr Elliott’s conclusion was expressed to be subject to a caveat which “arose from Dr Elliott’s concern about the readiness of civilian mental health services to continue to manage the defendant’s risk assertively with a CTO [Community Treatment Order]” (J [109]).
The second expert was Dr Carollyne Youssef, a psychologist. Her conclusions were summarised as follows:
[77] Dr Youssef stated that the defendant has some insight into his offending behaviour in acknowledging the role of substance use in increasing his risk due to the financial burden it places on him and the impact on his behaviour. Dr Youssef said that the factors most likely to provide an exponential escalation in the defendant’s risk of reoffending involved inadequate community support and supervision, relapse into substance use, financial difficulties, difficulty coping and poor problem-solving, and a cessation of his medication with a deterioration in his mental health. …
[78] … Dr Youssef opined that the defendant continues to pose a risk of violence to others, with the potential for this to be serious, if he ceases to be a forensic patient. Dr Youssef considered that the defendant’s status as a forensic patient was necessary to manage his risk of harm to others, as it ensured ongoing oversight by the Tribunal, including regular reviews of his progress, treatment and supervision. Dr Youssef noted that, without an order, the defendant could reject his current supports, which would elevate his risk of harm to others. [emphasis in original]
The key difference between the views of the two experts was thus not as to whether or not the respondent could pose a continued risk of serious harm but as to whether that risk could be adequately managed in the absence of an extension order being made.
His Honour said, amongst other things, that he could “see no reason why the opinion of Dr Elliott should be rejected and that of Dr Youssef preferred” (at [112]). He concluded that the case for an extension order had not been made out and dismissed the application.
The appellant now appeals on two grounds: first, that the primary judge erred in indicating at [37] that court-appointed experts ordinarily should be called to give oral evidence where they had a difference of opinion, and in placing weight on the absence of such evidence; and, second, in confining attention to a community treatment order when considering other less restrictive means, without considering whether that alternative was adequate to manage the risk in light of some evidence having provided reason to doubt that the means would be implemented effectively or at all.
I do not have the benefit of written submissions from either side directed to these issues. In any event, it is neither possible nor appropriate for me to consider in detail their likely prospects of success. It suffices to say that I consider the grounds reasonably arguable.
130 Interim extension orders
The Supreme Court may make an order for the interim extension of a person’s status as a forensic patient if, in proceedings on an application for an extension order, it appears to the Court—
(a) that the limiting term or existing extension order to which the forensic patient is subject will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order.
131 Term of interim extension orders
(1) An interim extension order commences on the day fixed in the order for its commencement (or, if no day is fixed, as soon as it is made) and expires at the end of the period (not exceeding 3 months from the day on which it commences) that is specified in the order.
(2) An interim extension order made for a period of less than 3 months may be renewed from time to time, but not so as to provide for the extension of the person’s status as a forensic patient under an order of that kind for periods totalling more than 3 months.
These provisions mirror the predecessor legislation: Mental Health (Forensic Provisions) Act 1990 (NSW), Sch 1, cll 10-11 (the 1990 Act).
The provisions are contained within Pt 6 of the Act. The objects of Pt 5 of the Act are set out in s 69(1) and, pursuant to s 69(2), those objects also extend to Pt 6. The stated objects include “to protect the safety of members of the public”.
The reference to “Supreme Court” in s 130 of the Act of itself would encompass the Court of Appeal. As Spigelman CJ said in Smith v Yusen Daly Smith International (in liq) (2001) 53 NSWLR 385; [2001] NSWCA 458 at [25]: “The Court of Appeal exists within the Supreme Court. It is not a separate entity from it”; see also Habib v Radio 2UE Sydney Pty Ltd [2013] NSWCA 347 at [8]. In any case, under s 44 of the S**upreme C**ourt Act 1970 (NSW), “[t]he Court of Appeal may, in proceedings before it, exercise every power, jurisdiction or authority of the [Supreme] Court, whether at law or in equity or under any Act …”.
The issue in dispute is whether the three month time limit in s 131(2) applies in such a way as to start running from when an IEO made in the Supreme Court against the respondent first commenced, despite the fact that an appeal has been instituted. If it did apply in that way, I could not now make an IEO as the IEO currently in place expires this coming Friday, being three months after the IEO made by Harrison CJ at CL commenced. On that understanding, to make any further IEO would go beyond the three month window.
This Court considered the previous statutory regime in Attorney General of New South Wales v WB [2020] NSWCA 7. The main issue in that case was whether an extension order could only be made if the person in question was a “forensic patient” in the sense that they were subject to an existing limiting order or extension order in place at the time the order was made. The alternative argument was that it was sufficient that the person be a forensic patient when the application for the order was first made. The majority of the Court (Basten JA with Macfarlan JA agreeing) took the former view; Leeming JA, in dissent, took the latter view. It is clear that the parties and the Court in that case proceeded on the assumption that the three month time period did encompass any IEO that might be made on appeal, including even if the appeal was upheld and the matter remitted to the Supreme Court: see eg at [8], [49], [54], [79]-[80].
The issue was not, however, the subject of argument. That being so, the assumption made in that case is not binding upon me. If “a point is not in dispute in a case, the decision lays down no legal rule concerning that issue”: Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [79]; see further (2005) 226 CLR 1; [2005] HCA 64 at [13]-[14]; (2017) 94 NSWLR 36; [2017] NSWCA 37 at [87].
[49] … The preferable view is that the purpose of cl 10 is to provide for a brief extension of the status of forensic patient so as to permit an extension order to be made, but to maintain a tight limit on the latitude so provided.
However, the scheme also provides for appeals from decisions to make or to refuse to make an extension order (s 135). Given the tight time constraints, it will commonly be the case that the final decision of the Supreme Court would only be made at or near the end of the permissible three month period for an IEO. In that context, were that same time period to apply to proceedings in this Court then little, or perhaps no, time may be left for the appeal process to take its course. In some plausible circumstances, thus, the statutory appeal right would be rendered ineffective because there would be insufficient time for the appeal to be filed, prepared, heard and determined. In other plausible circumstances the parties and this Court would be required to act with extreme expedition under great pressure.
No doubt the time limits are imposed in recognition of the fact that the statutory scheme imposes significant restrictions on liberty. Yet for that very reason it is important that applications be dealt with not only promptly but carefully and judiciously. The Parliament can be taken to have intended as much. That understanding is reinforced by the importance of protecting the safety of the public, as referred to in s 69(1). That context makes it unlikely that the time limits were intended to operate in a way which would commonly restrict or deprive the parties and this Court of the opportunity to deal with any appeals with the requisite diligence and care, in circumstances where the Parliament has expressly provided appeal rights under the Act.
Moreover, this Court is authorised to remit the matter to the Supreme Court (s 135(5)). Such an order might well be made in circumstances where an appeal was upheld against a Supreme Court order dismissing an application for an extension order and this Court considered it appropriate for the primary judge to reconsider the matter (that judge may, for example, have had the benefit of seeing and hearing witnesses give oral evidence). If the three month time restriction that originally applied to the Supreme Court also applied to any such remitter then even if there was any time left, it would likely be very constrained indeed.
Section 135(6) of the Act provides:
Without limiting any other jurisdiction it may have, if the Court of Appeal remits a matter to the Supreme Court for decision after an appeal is made, the Court of Appeal may make an interim order revoking or varying an extension order the subject of the appeal.
An oddity about this provision is that the language of “revoking or varying an extension order the subject of the appeal” presupposes that there is some such order in place. That may not be the case if the Supreme Court had declined to make such an order. There is no apparent sensible reason why the Parliament would not have intended to empower this Court to make such an order in such cases. That suggests a slight lack of care in the drafting of the provision.
A question then arises as to whether, if the appellant’s argument is correct (as I consider it to be), the three month clock would start running again if and when this Court made such an order. Much the same purposive and contextual arguments would apply in that context as arise vis-à-vis appeals. However, as the senior counsel for the appellant accepted, the textual argument relying on the notion of “proceedings” is not so clearly available in this context. It may be that the remitted case should implicitly be taken to be new “proceedings”, being a new “method permitted by law for moving a Court or judicial officer to some authorized act” (quoting Cheney).
It is not necessary for me to determine that point. It is sufficient for current purposes to note that the Act provides for the possibility of remitter, and that fact militates in favour of the conclusion that the three month limit on any IEO made in this Court prior to the determination of an appeal should be taken to run from when an order of that kind is first made in this Court. It is that construction which, in my view, is the correct one. That construction is open on the text and is supported by the contextual and purposive considerations identified.
Should an interim ext****ension order be made?
Section 130 stipulates two requirements for the making of an interim extension order. The first – that it appears that the existing extension order to which the forensic patient is subject will expire before the proceedings are determined – is made out based on the timeline outlined (taking account of the fact that, as discussed below, the hearing of this appeal will be expedited and listed on 6 November 2025).
The second requirement is that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. As explained, the key difference between the views of the two experts was not as to whether or not the respondent could pose a continued risk of serious harm but rather as to whether that risk was sufficiently ameliorated by ongoing management in the absence of an extension order being made. That is an evaluative matter going to future risk. It is thus not surprising that experts might disagree in their assessment of the issue. It would be open to this Court to prefer the view of Dr Youssef on appeal, taking account of the grounds of appeal. In that sense, it can be said that the matters alleged in the supporting documentation (including the notice of appeal) would if proved – ie made out – justify the making of an extension order sufficient for the purposes of s 130.
In my view it is appropriate that the status quo be maintained pending determination of the appeal. In that regard I take account of the fact that the respondent is not currently detained. He resides in the community in supported independent living accommodation pursuant to conditional release granted by the Mental Health Review Tribunal on 14 May 2025 (see J [8]).
An IEO should be granted. Although it can be made for a period of up to three months, here it is sufficient to make it up until the end of the Court term, being 19 December 2025. That will provide sufficient time for this Court to hear the appeal and either determine it or, if appropriate, extend the term of the IEO.
If this Court dismisses the appeal prior to the end of the IEO then it can revoke the IEO pursuant to s 133(3). The criterion for making such an order is that the Court is “satisfied that circumstances have changed sufficiently to render the order unnecessary”. That criterion presumptively will be satisfied if the appeal has been dismissed (subject to any countervailing considerations, such as some mooted application for special leave to appeal).
The respondent did not oppose the appellant’s application for expedition. That application was put by the appellant in the alternative to making an IEO. However, given that the IEO restricts the liberty of the respondent the appeal should be heard promptly. An order for expedition should thus be made.
It would be possible for this Court to hear and determine an appeal this week if absolutely necessary. The Court can always respond with very substantial expedition if that is what the circumstances, and justice, require: see eg Ward v Hoenig [2025] NSWCA 180; Commissioner of Police (NSW Police Force) v Naser [2025] NSWCA 224. However, determining cases in great haste is less than ideal. The issues raised here are not unimportant. It is always better that both parties have some time to prepare careful written submissions and that the Court has time to consider the issues before being pressed to make an urgent decision.
The Court can hear the appeal in two and a half weeks’ time on Thursday 6 November 2025. That allows the parties reasonable time to prepare their submissions. The respondent also raised an issue about potentially wishing to rely on further evidence (ie beyond what was before the primary judge), although the nature of that possible evidence was not explained. That factor, too, suggests that the orders should provide for an expeditious but not breakneck timetable.
As noted, pursuant to s 136 of the Act costs may not be made against a forensic patient. The Act does not prevent costs being ordered against the Minister administering the Act. The appellant has succeeded in obtaining an IEO, over the opposition of the respondent. However, as was submitted on behalf of the respondent, if the appellant had moved with greater speed after the decision of the primary judge then determination of this motion may not have been necessary (cf [10] above). The respondent’s submissions were of assistance. In this context the appellant should be ordered to pay the respondent’s costs of the motion.
Given the degree of expedition ordered it is appropriate to make various timetabling orders.
The orders of the Court are as follows:
Pursuant to s 130 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the respondent is subject to an interim extension order until 5pm on 19 December 2025.
The appeal is expedited and listed for hearing on 6 November 2025.
The appellant is to pay the respondent’s costs of the motion.
The appellant is to file and serve a white folder by 24 October 2025, with the white folder to stand as appeal books.
The appellant is to file and serve written submissions on the appeal by 24 October 2025.
The respondent is to file and serve written submissions on the appeal, along with any notice of contention and/or cross-appeal and/or application to rely on further evidence, by 31 October 2025.
The appellant is to file and serve and serve any written submissions in reply by 12:00 noon on 4 November 2025.
The parties’ submissions are to comply with rule 51.36 of the Uniform Civil Procedure Rules (NSW).
The appellant is to email the Registrar with electronic copies of all grounds of appeal and all parties’ written submissions, pursuant to paragraph 27 (and, as applicable, paragraph 28) of Practice Note SC CA 01, suitable for publication (with redactions as required), certified as such in each respective document by the lawyer responsible for filing the same, by 12:00 noon on 4 November 2025.
The appeal is listed for directions before the Registrar at 9:30 AM on 5 November 2025, which may be vacated if the preceding order has been complied with.
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Attorney General for New South Wales
Haines
(1929) 41 CLR 532
(2004) 220 CLR 1
(2005) 226 CLR 1
(2017) 94 NSWLR 36
(2001) 53 NSWLR 385
The Court made an interim extension order under s 130 until 5pm on 19 December 2025, expedited the appeal for hearing on 6 November 2025, ordered the appellant to pay the respondent’s costs of the motion, and set filing, publication and directions timetables. The merits of the appeal were not decided.
The issue before me is one of statutory construction. It is to be resolved by taking account of the relevant text, context and purpose. In my view the argument now put by the appellant is correct. This Court is not precluded from making an IEO in the current circumstances. And that is so even though it relevantly constitutes the Supreme Court, as referred to in s 130(1).
Section 130 is the provision which grants the power to make an IEO. Such an order can be sought and made “in proceedings on an application for an extension order”. The word “proceedings” is not defined in the Act. Section 131 does not employ that word but there was no need for it to do so, given that it is simply making provision for aspects of how IEOs made under s 130 are to apply. The time limit specified in s 131(2) necessarily applies to an IEO that was made “in proceedings on an application for an extension order” as identified in s 130(1). Senior counsel for the respondent argued that the words in s 131(2) are plain and should be taken to mean what they say. That submission ignores the link between ss 130 and 131. That link means that there is an issue as to what “proceedings” means.
In particular, the key question is whether an appeal to this Court is the same “proceedings” as the application for the extension order in the Supreme Court. The word “proceedings” is capable of applying to the matter, so as to encompass any appeal. The word “proceeding” can also be used so as to mean “merely some method permitted by law for moving a Court or judicial officer to some authorized act, or some act of the Court or judicial officer”: Cheney v Spooner (1929) 41 CLR 532 at 536-537; [1929] HCA 12. Thus in various other contexts it has been held by this Court that an appeal is a separate “proceeding”: Distinctive FX 9 Pty Limited v Statewide Developments Pty Limited [2012] NSWCA 393 at [11]; Diveva Pty Limited v Nominal Defendant [2013] NSWCA 325 at [90]; Taouk v Assure (NSW) Pty Ltd [2019] NSWCA 224 at [3]; Keynes Capital Global Limited v Guo (No 2) [2020] NSWCA 336 at [9]. Those cases illustrate that the appellant’s argument is open. They do not resolve whether that construction is the correct one in relation to the provisions at issue.
Section 136 of the Act states that “[a]n order for costs may not be made against a forensic patient in relation to proceedings under this Part (including proceedings on an appeal under this Part)”. This provision seems to distinguish between proceedings at first instance and on appeal, but it cannot be said that the point is clear.
Schedule 1 to the 1990 Act, containing the predecessor provisions, was introduced by the Mental Health (Forensic Provisions) Amendment Act 2013 (NSW) (the 2013 Amendment). In his second reading speech, the Attorney General stated that the 2013 Amendment was intended to implement the NSW Law Reform Commission’s (NSWLRC) recommendation that an extension order mechanism be incorporated into the 1990 Act (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 November 2013 at 25639). The relevant NSWLRC report, released earlier that year, had recommended that a scheme modelled on the mechanism for issuing continuing detention orders (CDO) for high risk offenders be adopted (NSWLRC, People with cognitive and mental health impairments in the criminal justice system*:* criminal responsibility and consequences (May 2013) (NSWLRC report) at ch 11). The report does not address the inclusion of IEOs in the scheme; nor does that drafting choice receive substantive attention in the 2013 Amendment’s second reading speech or explanatory note. The NSWRLC did note that the CDO scheme empowered the court to make an interim order for supervision or detention not exceeding 28 days (NSWLRC report at 324). In sum, the NSWLRC report and explanatory materials offer little guidance on the application of the three month time limit on IEOs in a case such as this. Senior counsel for the respondent agreed that that was so. Neither side argued that cases relating to continuing detention orders offer any assistance in the current context.
The obvious purpose in providing for the making of IEOs was to give the Supreme Court a reasonable, if limited, period of time in which to consider an application for an extension order. The fact that the time was limited is consistent with other aspects of the statutory scheme, which stipulate that such an application can only be made in the last six month before the expiry of a limiting term of previous extension order (s 124(2)), and that the required preliminary hearing in the Supreme Court is to be conducted within 28 days of the application being filed (s 126(4)).
As Basten JA said in WB of the predecessor to s 131: