D v South Eastern Sydney Health District t/as St George Hospital

Cases Cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
Re D (No 2) [2025] NSWSC 251
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63

Category: Principal judgment

Parties: D (Plaintiff)
South Eastern Sydney Health District t/as Saint George Hospital (First Defendant)
Mental Health Review Tribunal of New South Wales (Second Defendant)
Sydney Local Health District (Third, Fourth and Seventh Defendants)
NSW Police (Fifth Defendant)
NSW Ambulance (Sixth Defendant)

Representation: Counsel:
J Wilcox (Second, Third, Fourth, Fifth and Seventh Defendants)
Solicitors:
Plaintiff (Self-represented)
Crown Solicitor’s Office (Second, Third, Fourth, Fifth and Seventh Defendants)

File Number(s): 2025/00097562

Publication restriction: The plaintiff’s name is anonymised to give effect to s 162 Mental Health Act 2007 (NSW)

EX-TEMPORE JUDGMENT (REVISED)

1. The plaintiff has commenced proceedings in the Common Law Division claiming damages against a number of defendants including the Sydney Local Health District (SLHD) suing for damages for torts that she pleads were committed against her in the course of the SLHD and other health authorities implementing and complying with community treatment orders (CTO) which have been made in respect of her by the Mental Health Review Tribunal (MHRT), the second defendant, under the provisions of the Mental Health Act 2007 (NSW) (the Act).

2. In the statement of claim filed on 12 March 2025, the plaintiff seeks an interim injunction and a final injunction at the final hearing. She also claims damages for what amounts to twenty separate causes of action pleaded which, when aggregated, total $6.5 billion. I will leave aside that in claims for unliquidated damages the rules do not permit pleading the amount claimed. By referring to the statement of claim, I do not wish to suggest that I have considered whether or not it conforms to the requirements regarding the form and content of pleadings under the Uniform Civil Procedure Rules 2005 (NSW). I acknowledge that the plaintiff has sought to group together the various causes of actions against the different defendants in what might be described as a logical, if not entirely chronological, manner.

3. Today, as duty judge, I am dealing with an application for the interim injunction brought by notice of motion filed on 1 April 2025 and referred to me by the Duty Registrar in accordance with the usual practice of the Common Law Division. It is important for me to specify in precise terms the relief sought according to the notice of motion. The plaintiff prays for this relief:

“Pursuant to ss 23 and 66 of the Supreme Court Act 1970, no person shall approach or organise to bring an approach to the plaintiff in connection with the forced administration of medication, including involuntary detention for the purpose of forced administration of medication until further order of this court.”

4. It is important to know that the last of the CTOs made in respect of the plaintiff was made in January of this year, and the plaintiff exercised her right of appeal under s 163 of the Act by bringing proceedings in the Equity Division of this Court. On 7 February 2025, Lindsay J, sitting as the list judge, made an interim order restraining the SLHD from implementing the CTO until further order of this Court. The intent of the order was obviously that there should be a stay of the CTO until the appeal had been determined.

5. The appeal was determined by the Chief Judge in Equity, Hammerschlag J, on 25 March 2025: Re D (No 2) [2025] NSWSC 251. Exercising the ample powers of the Court extending to the re-exercise of the powers of the MHRT under s 164 of the Act, his Honour upheld the 2025 CTO and dissolved the interim injunction or restraining order that Lindsay J had made. His Honour said, at [66] of his judgment, that:

“Sydney Local District Health has well discharged its onus of establishing that the 2025 CTO should be continued".

His Honour also remarked (at [66]):

“In reaching this conclusion, I am cognisant of the fact that forced medical treatment is an exceptional form of treatment not to be approached lightly.”

6. Those circumstances are important to record because during the course of the plaintiff's careful argument as to why I should make the interim order sought in these proceedings, she acknowledged that the effect of the injunction sought, while expressed in different terms from the injunction made by Lindsay J, would be that she would be entitled to withhold her consent to the intramuscular, or depot, medication authorised by the 2025 CTO being administered. The plaintiff argues this follows from the terms of s 57(3) of the Act. That provision is in these terms:

57 Duties and functions of affected person and mental health facility

…

(3) Medication may be administered to an affected person for the purposes of a community treatment order without the person’s consent if it is administered without the use of more force than would be required if the person had consented to its administration.

I observe in passing that s 57(1) of the Act is put in these terms (a point to which I will return):

(1) The affected person must comply with the community treatment order.

(my emphasis).

7. The plaintiff has sought to very carefully distinguish the injunction she seeks from the injunction pronounced by Lindsay J which, in general terms, had the effect of restraining the SLHD from implementing the CTO at all, and she has emphasised to me that there is more to the order than the medications to which I have referred. It extends to treatment sessions in interview with psychiatrists and other measures which are imposed by the terms of the order. It is clear from the terms of Hammerschlag CJ in Eq’s decision upholding the 2025 CTO, that a most significant part of the regime is the administration of the appropriate depot medication, even if the plaintiff does not consent, and that is the purpose of his Honour's observation about “forced medical treatment”. His Honour, who had the benefit of a much greater body of evidence than me, also observed at [68] that the requirement for the plaintiff's treatment "has assumed a degree of urgency and her own interests, and perhaps more importantly the public interest, will not be served by any [further] stay".

8. It is clear to me that the plaintiff's argument about the legal effect of the injunction which she seeks were I to make it is that, in substance, she could evade compliance with the terms of the CTO, even if only in relation to the administration of medication. However, the administration of medication is an essential part of the CTO, as the reasons of Hammerschlag CJ in Eq make more than abundantly clear. Notwithstanding the plaintiff's arguments to the contrary, I am well satisfied that the interim relief sought in the notice of motion of 1 April 2025 is a collateral attack upon not only the CTO, the necessity for which has been upheld by Hammerschlag CJ in Eq, but also upon the decision of Hammerschlag CJ in Eq itself, and to that extent, the notice of motion is an abuse of process, as Mr Wilcox of counsel appearing for SLDH has submitted. For that reason, I propose to dismiss the motion.

9. Were I wrong in that conclusion, I am of the view that the grounds for an interlocutory injunction have not been established, even to the relatively low level, it may be said, necessary: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1. As I have said, the causes of action promulgated by the plaintiff in the statement of claim are really common law claims for damages in tort for various forms of personal injury. They may be characterised in different ways, but the plaintiff has characterised them as involving unlawful detention, kidnapping, trespass to the person and trespass to her property, the last category applying when police and other officials on different occasions entered her home to bring her to hospital for treatment in compliance with an existing CTO. One might have expressed them in different ways. Wrongful arrest, false imprisonment, battery and the like are characterisations which spring to mind. In respect of causes of action of that type, however, it is manifest to me that damages are always treated as an adequate remedy, and notwithstanding what I have said about the non-conformity of the claim for damages with the requirements of the rules, the plaintiff seeks damages in abundance.

10. In my view, there is no proper legal or logical connection between the interim relief sought and the final remedy sought in the statement of claim, notwithstanding the assertion of a right to a final injunction. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at [91], Gummow and Hayne JJ, in their joint judgment, said:

“The basic proposition remains that where interlocutory injunctive relief is sought in a Judicature system court, it is necessary to identify the legal (which may be statutory) or equitable rights which are to be determined at trial and in respect of which there is sought final relief which may or may not be injunctive in nature. In Muschinski v Dodds (citation omitted) Deane J said that an equitable remedy 'is available only when warranted by established equitable principles or by the legitimate processes of reasoning, by analogy, induction and deduction, from the starting point of a proper understanding of the conceptual foundation of such principles'."

11. As I have said, that principle would be contravened by granting the interim relief sought when compared to the nature of the appropriate final relief to be awarded if the plaintiff were successful in her claims for damages.

12. Even were I wrong about that additional matter as well, it does seem, as Hmelnitsky J observed in [D] v Commissioner of Police at pp 6-7, that it is appropriate to take into account the provisions and purposes of the Act, "at the very least, in assessing where the balance of convenience lies in allowing the CTO to continue" instead of staying it or restraining the defendant from giving effect to it. In this regard it is significant, as I have said, that the effect of an injunction made on an interim basis until further order of this Court would be to deprive the CTO of its principal purpose of providing appropriate medication for the plaintiff's mental illness. It may operate in aid of s 57(3) (as the plaintiff contends it operates), but it would entirely deprive s 57(1) of its legislative purpose and the work it is required to do. It would render the means of enforcement provided by s 58 entirely nugatory in the inevitability of the plaintiff’s refusal to receive medication thereby breaching s 57(1). It seems to me for all of these reasons, were I wrong in my legal understanding in relation to the abuse of process and whether or not the first limb of the applicable test for the making of an interim injunction had been satisfied, that the balance of convenience would very distinctly lie in favour of giving effect to the CTO rather than depriving it of its central provision.

13. For those reasons, the notice of motion of 1 April 2025 is dismissed.

Amendments

04 April 2025

Cover Sheet - Plaintiff's name anonymised.