Victorian Institute of Forensic Mental Health trading as Thomas Embling Hospital

Garden v Victorian Institute of Forensic Mental Health t/as Thomas Embling Hospital (Anti-Discrimination) [2008] VCAT 582

Pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 this complaint is struck out.

1. On 30 March 2007 Mr Garden lodged a complaint under the Equal Opportunity Act 1995 (the EO Act) with the body now called the Victorian Equal Opportunity and Human Rights Commission (the Commission). The complaint is against the Victorian Institute of Forensic Mental Health (the Institute) trading as the Thomas Embling Hospital (the Embling Hospital).
2. The Commission declined to entertain the complaint under s108(1) of the EO Act. That permits the Commission to decline a complaint which it considers frivolous, vexatious, misconceived or lacking in substance. Mr Garden, as is his right under the EO Act, required the Commission to refer the complaint to VCAT. It did so by letter dated 4 July 2007.
3. VCAT then directed Mr Garden to file and serve particulars of complaint. He did so.
4. The Institute then applied to have the complaint struck out under s75 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act). It did so on the basis that the complaint was frivolous, vexatious, misconceived or lacking in substance. These are all grounds on which, under s75, the Tribunal may strike out or dismiss a proceeding (here, a complaint). The principles applying to these applications are relevantly these[1].
5. The section permits the summary termination of a complaint, including at any stage before hearing. The Tribunal should be cautious before terminating a complaint and so depriving the litigant of the chance to have the complaint heard in the ordinary course. It should only do so where, for a reason mentioned in the section, it is satisfied that the complaint is absolutely hopeless, doomed to fail, manifestly untenable, or on no reasonable basis can justify relief. If the Institute relies on an exception under the EO Act as a basis for striking out a claim in a complaint, the Tribunal must be satisfied that the exception so clearly and completely answers the claim that the claim can be said to be manifestly hopeless. The Tribunal bears in mind that the burden of proving that exceptions under the EO Act apply is on the Respondent. If all that a Respondent does is to deny an allegation made by the Complainant, this is not in itself enough to justify summary termination of a complaint under the section. Rather, the disputed matter should go to a full hearing where evidence as to it can be called and tested by cross-examination. A Respondent must take a Complainant's case at its highest and assume that, if the matter went to hearing, the Complainant will be able to prove what he or she asserts.
6. I set a timetable for written submissions by the parties on the application. The parties agreed that the matter would then be determined on the papers. I have before me the complaint and particulars of complaint, and written submissions from the parties. The Institute's submissions include an affidavit from Dr Zimmerman, Mr Garden's treating psychiatrist in the period to which the complaint relates. The complaint relates to the period February 2005 to May 2007, both inclusive. Mr Garden opposes the striking out of the complaint.
7. The Commission (correctly in my view) characterises this as a claim of direct discrimination on the basis of impairment in the area of services. The parties do not dispute this characterisation.
8. I first say something about the legislative framework relevant to this complaint. I then summarise the material before me. Finally, I discuss the parties' submissions and state my conclusions.

1. I deal with the provisions of the Act concerning direct discrimination on the basis of impairment in the provision of services. Section 42 prohibits discrimination in this area. It provides -

42. Discrimination in the provision of goods and services

(1) A person must not discriminate against another person-

(a) by refusing to provide goods or services to the other person;

(b) in the terms on which goods or services are provided to the other person;

(c) by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her.

(2) Subsection (1) applies whether or not the goods or services are provided for payment.

1. Section 4 defines 'services'. The definition is inclusive and not exhaustive. It is clear from the authorities that 'services' also has its ordinary dictionary meaning of a beneficial or helpful activity[2]. But not all beneficial activities will be 'services'. Some, for instance, may be better described as services to the community than to an individual. The inclusions in the definition made by s4 are also very broad. They include services of a profession and services provided by a public authority. 'Public authority' is not defined in the Act. The provision of a number of services expressly included in the definition of 'services' by s4 will also be regulated by other acts. Transport is an example. But this does not prevent them being 'services' within the meaning of that term in s4.
2. It is common ground that Mr Garden suffers from paranoid schizophrenia and that this is an impairment within the meaning of the EO Act. It is unnecessary for me to discuss the meaning of impairment here.
3. Impairment is in the list of attributes on the basis of which the Act prohibits discrimination. Section 42 is one of those prohibitions.
4. As far as direct discrimination is concerned, the effect of ss7, 8 and 10 is this. Direct discrimination occurs if a person treats or proposes to treat someone with an attribute (here impairment) less favourably than the person treats or would treat someone without that attribute or with a different attribute in the same or similar circumstances. The attribute must be a substantial reason for the treatment, although it need not be the sole or dominant reason. It is irrelevant whether the discriminator was aware of the discrimination or considered the treatment less favourable. The discriminator's motive is also irrelevant. Discrimination will be based on an attribute, not only if it is based on the attribute itself, but also if it is based on a characteristic that a person with the attribute generally has or of a characteristic generally imputed to a person with that attribute.
5. The effect of s102 is relevantly this. If while acting as an agent or in the course of employment a person breaches s42 or engages in conduct which, if engaged in by the person's principal or employer, would breach that provision, the employee and employer, and the agent and principal, are taken to be liable for the breach and a complaint may be made against either or both of them.
6. Section 69 is an exception to the provisions on discrimination, including s42. Its effect is to take conduct to which it applies out of the Act's prohibitions on discrimination. As I have said earlier, the Respondent has the burden of proving that an exception applies. Section 69 is in wider terms than similar sections in earlier anti-discrimination legislation[3]. Section 69 relevantly provides -

(1) A person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of-

(b) an enactment, other than an enactment under this Act.

(2) For the purpose of subsection (1), it is not necessary that the provision refer to discrimination, as long as it authorises or necessitates the relevant conduct that would otherwise constitute discrimination.

1. Section 69 covers conduct necessary to comply with, or authorised by an enactment either in general or specific terms.

Sentencing Act 1991 (the Sentencing Act)

1. The order which imposed a sentence on Mr Garden was made under s93(1)(e) of the Sentencing Act. As then in force, it permitted the court, by way of sentence, to make a hospital security order under which a person was admitted to and detained in an approved mental health service as a security patient for a period specified in the order. The pre-conditions to the making of the order included that the person had been found guilty of an offence and that the court was satisfied that the person appeared to be mentally ill and to require treatment for the illness, and that the treatment could be obtained by that person being admitted to and detained in an approved mental health service and that the person should be admitted to and detained in that service for his or her health or safety or the protection of members of the public.
2. Although the provision under which this order was made was effectively re-enacted on 1 October 2006, a transitional provision continued in force orders made under the previous section[4].

Mental Health Act 1986 (the Mental Health Act)

1. Several groups of provisions of this Act are relevant to this claim. The first group concerns the nature and functions of the Institute and the Institute's authorised psychiatrist.
2. The Institute is an approved mental health service for the purposes of the Act. The Institute is established as a body corporate under Part 6A of the Act. Its functions include to promote and assist in the planning of forensic mental health services in Victoria and as far as practicable to oversee and coordinate those services. They also include 'to provide clinical assessment services to courts, the Adult Parole Board and other relevant government agencies' and to provide in-patient services and specialist treatment programs to patients and others with a mental disorder. The Institute is given power to do all things necessary or convenient to be done in connection with or incidental to the performance of these functions[5].
3. Section 96 provides for the appointment of an authorised psychiatrist in respect of an approved mental health service. The section permits the authorised psychiatrist to delegate his or her functions to a qualified psychiatrist.
4. The second group of provisions concerns the admission to and detention of certain patients in approved mental health services. Section 16 permits the Secretary to the Department of Justice to make what were called (before 6 December 2004) restricted hospital orders and are from that date called restricted hospital transfer orders. The amending Act which changed the name of the orders also included a provision construing references and in instruments to 'restricted hospital orders' as references to 'restricted hospital transfer orders' from the commencement of the amending legislation[6]. For the period to which this complaint relates, Mr Garden was subject to a restricted hospital order, although the name of that order was (in the way I have explained) changed to 'restricted hospital transfer order'. Section 3 of the Act relevantly defines 'security patient' as a person detained in an approved mental health service under a restricted hospital transfer order. A restricted hospital transfer order orders the admission and detention in an approved mental health service of a person then lawfully detained in prison. The grounds for the order are similar to those for the making of a hospital security order under s93(1)(e). I have discussed these under the heading 'Sentencing Act 1991'.
5. Section 16B(1) provides that a security patient 'is to be given treatment for his or her mental illness'. Subsection (2) provides that the authorised psychiatrist may consent to necessary treatment where the security patient refuses to consent or is not capable of consenting.
6. The third group of provisions concerns letters to and from security patients. Section 20(2) provides that 'a letter written to or by a security patient must, subject to any security conditions imposed under s47, be forwarded without being opened to the person to whom it is addressed'. Section 47(1) provides that a security patient detained in an approved mental health service 'is subject to such security conditions as the authorised psychiatrist considers necessary'. Under s47(3), a security patient is in the custody of that authorised psychiatrist until discharged.
7. The right to receive and send unopened letters can therefore be limited by necessary security conditions imposed. This interpretation of s20(2) and 47(1) is confirmed when one looks at the form of the information statement required by s18 to be given to those who become patients in an approved mental health service. That form appears in Schedule 9 of the Mental Health Regulations 1998. It states that the patient can contact people by letter or telephone unless 'your psychiatrist imposes a security condition on you'. The statement gives, as an example of security condition that might be imposed, the limiting of phone calls and the opening of mail. It also states its security conditions are applied 'to ensure a patient's health and safety or protection of the public'. I would add that the objects of that Act in s4(1) and the principles which are to govern discretions and powers exercised under the Act under s4(2) would also be relevant. Those principles require (among other things) that a power or discretion must be exercised so that people with a mental disorder are given the best possible care and treatment in the least possible restrictive environment and the least possible intrusive manner consistent with the effective giving of that care and treatment and that, in providing for the care and treatment of people with a mental disorder and the protection of the public, any restriction upon the liberty of the patient and any interference with the patient's right to privacy and dignity and self-respect are kept to the minimum necessary in the circumstances[7].

Corrections Act 1986 (Corrections Act)

1. Division 5 of Part 8 establishes the Adult Parole Board. Section 71 gives that Board various powers under the Evidence Act 1958 as if the presiding member of the Board were the chairman or president of a commission of inquiry appointed by the Governor in Council. Section 17 is one of the provisions of the Evidence Act which applies in this way. It permits the president or chairman to summon any person to attend and either give evidence and/or produce documents.
2. Section 74 of the Corrections Act sets out the functions of the Adult Parole Board. Broadly speaking, those functions relate to the determination of whether or not prisoners should be released on parole after the non-parole period.

1. From the material before me I am satisfied of the following. The Institute operates the Embling Hospital. The Embling Hospital is a 100 bed facility catering mainly for patients from the criminal justice system. One category of the patients in the hospital is those who are subject to restricted hospital transfer orders under s16 of the Mental Health Act.
2. On 13 April 1995 Mr Garden was convicted of murder and attempted murder. It is clear from the transcript of his sentencing hearing that at the time he was diagnosed from suffering from paranoid schizophrenia. The Supreme Court made a hospital security order in relation to him under s93(1)(e) of the Sentencing Act, and under that order, he was admitted to and detained in an approved mental health service. The order specified the period of detention as eighteen years and nine months and the non-parole period as eleven years and nine months. Apart from a brief period in 1996 and another in 2001 when he was returned to prison, he has been in an approved mental health service ever since, including for the period to which this complaint relates. In 2001, he was returned from prison to the Embling Hospital under a restricted hospital order (now called a restricted hospital transfer order) dated 6 December 2001. He was at the Embling Hospital for the period to which the complaint relates and is still there. He is a security patient under the Mental Health Act. Since February 2005, he has been in the Bass Unit - a low/medium security setting for sub-acutely ill patients.
3. In the period to which the complaint relates (February 2005 to May 2007) Mr Garden's treating psychiatrist at the Embling Hospital was Dr Zimmerman. She is a consultant psychiatrist at the Institute and is a delegate of the Institute's authorised psychiatrist. The relevant instrument of delegation is dated 26 October 2003.
4. In my view, the Institute has correctly summarised the claims in Mr Garden's complaint, as clarified by his particulars of complaint and submissions. They are these.

1. Doctor Zimmerman wrote reports on Mr Garden to the Adult Parole Board in April 2006 and January 2007. Mr Garden's claim is that the reports contain deliberate falsehoods and errors and that these influenced the Adult Parole Board to make an erroneous decision as to his eligibility for parole. He claims that Dr Zimmerman told him she would report favourably about him but did not do so.
2. There is no dispute that both these reports were prepared by the doctor at the request of the Adult Parole Board and to assist it in its determination as to Mr Garden's eligibility for parole. The doctor sent the reports to the Board and did not give a copy to Mr Garden, although she discussed with him the contents of the reports in general terms. Dr Zimmerman's affidavit states that the reports contained information, opinion and recommendations designed not for the patient's treatment, but to assist the Board.
3. Taken at its highest, and reading these claims in a broad and non-technical way, Mr Garden claims that the errors made by the doctor in these reports derived from false assumptions about Mr Garden's behaviour - assumptions which the doctor would not have made about a person without paranoid schizophrenia. She treated him less favourably than she would have a person without that impairment. He asks for the reports to be declared illegal and/or corrected or withdrawn.

1. Mr Garden claims that Dr Zimmerman asked him to open a letter in front of her and confiscated the letter. It seems that this claim relates to only one letter. He says that the letter was from his bank and contained personal banking details. He claims that the doctor did not open or confiscate mail of other patients. He claims that she treated him in this way because she did not trust him and this lack of trust was based on a negative view of his character as a paranoid schizophrenic. In this way, she treated him less favourably than those without this impairment, and because of his paranoid schizophrenia. He says that she once told him that she acted in this way under s47 of the Mental Health Act. This is the section that permits the authorised psychiatrist or his or her delegate to impose security conditions on a patient.

1. Mr Garden claims that Dr Zimmerman did not believe anything he told her. He gives examples in his particulars of complaint. One is that the doctor did not believe him when Mr Garden told her that he had completed the morning tasks assigned to him. His claim, read broadly, is that the doctor did not believe him because of his paranoid schizophrenia and, by this lack of belief, treated him less favourably than other patients without this impairment.

1. Mr Garden claims that the Institute (through its unit manager) denied his often repeated requests to have his primary nurse/case manager (Mr Heeney) replaced. He claims that he had a personality clash with Mr Heeney, that Mr Heeney did not believe anything he said, and that he could not confide in Mr Heeney. This is the claim in his complaint. At the time Mr Garden filed his particulars of complaint, he makes it clear that he had a new primary nurse/case manager, and in those particulars makes a different allegation. He alleges that Mr Heeney is regularly present in the Bass Ward. This is the ward where Mr Garden is located. Mr Garden claims that Mr Heeney's presence disturbs him.
2. Mr Garden claims that both these matters constitute less favourable treatment of him by the Institute. He claims that this treatment is based on his impairment.

1. In his particulars of complaint, Mr Garden makes the following new claims which are not mentioned in the complaint -
   • (a) Mr Heeney provided incorrect information about Mr Garden to Dr Zimmerman.
   • (b) The Institute's authorised psychiatrist, Dr Bell, made incorrect statements in an affidavit which, it appears, was evidence before the Adult Parole Board at a hearing concerning Mr Garden.
   • (c) Dr Zimmerman mentally abused Mr Garden.

1. There are a number of statements in Dr Zimmerman's affidavit which are not dispute by Mr Garden. They are these. The two parole reports produced by the doctor for the Adult Parole Board stated matters of clinical judgment. At times while she was treating Mr Garden, the doctor imposed security conditions on him under s47 of the Mental Health Act, in the form of restrictions on his mail.
2. The doctor states that one of the clinical symptoms of paranoid schizophrenia is that sufferers may experience paranoid delusions often accompanied by hallucinations that appear real to them. This element is recognised in the definition of the disorder in the Diagnostic and Statistical Manual of Mental Disorders published by the American Association of Psychiatrists. The doctor states that it is recognised and good clinical practice for a treating psychiatrist to form views about the reality of what a patient with this disorder is suffering and to communicate these views to the patient, so that the patient understands that his or her perspective is not grounded in reality and might be able to change perspective. She states that her clinical practice and treatment of Mr Garden was appropriate and that she tailors her treatment of each patient to meet their individual needs.

Submissions and conclusions - should the claims be struck out?

1. The Institute submits that the claims under the heading 'additional claims' were not in the complaint referred to VCAT and VCAT has no jurisdiction to deal with them. It says that they are fresh claims, and not merely more detail about the claims in the complaint. I agree.
2. Under s134 of the EO Act, the Tribunal has (among other things) jurisdiction to hear a complaint referred to it. Section 127 of the VCAT Act gives it power to amend any document in a proceeding. This would include a complaint. But it cannot, using this amendment power, add fresh claims which have nothing to do with the claims in the complaint. The additional claims fall into this category.

1. The Institute submits that reports to the Adult Parole Board are not 'services' to which s42 of the EO Act applies. I agree.
2. It appears from the material that Dr Zimmerman did not attend the Adult Parole Board but merely sent written reports to it at its request. There is no doubt that the broad functions and powers of the Board under the Corrections Act authorise it obtain reports in this way. One of the Institute's functions under the Mental Health Act is to provide clinical assessment services (which would include reports of this kind) to the Board. The provision of the reports was a service, not to Mr Garden, but to the Board. Section 42 of the EO Act covers discrimination by refusing services to the person alleging discrimination, in the terms on which services are provided to that person, or by subjecting that person to a detriment in connection with services provided to that person. Because these reports were not part of a service provided to Mr Garden, s42 cannot apply. The claim is manifestly hopeless and should be struck out.
3. I would add that, had I found that the provision of these reports in some way constituted a service to Mr Garden, I would have said that the conduct was exempt under s69 of the EO Act, because it was authorised by the Corrections Act and the Mental Health Act.

1. The Institute submits that the opening and confiscation of the relevant letter by Dr Zimmerman is authorised by an enactment and so falls within the exception in s69 of the EO Act. I agree.
2. In considering this claim, I assume (without deciding) that the sending and delivery of mail to and from patients in the Embling Hospital is a service provided by the Institute to those patients. That service is capable of falling within s42 of the EO Act. Some of the terms on which that service is provided are governed by ss20 and 47 of the Mental Health Act. Mail is to be forwarded unopened unless a security condition applies. Whether a restriction which the authorised psychiatrist or his or her delegate imposes is truly a security condition, and is truly necessary (presumably for the safety of the patient or the public) will depend on what the condition is and why the psychiatrist imposed it. Dr Zimmerman in her affidavit states that the opening and confiscation of this letter was done in the implementation of a necessary security condition which she applied to Mr Garden. Mr Garden, in his material, says that she told him so at about the time the incident happened. In these circumstances, it is very hard to see how Mr Garden could disprove that the opening and confiscation of this letter occurred in the carrying out of a necessary security condition imposed. He does not directly deny that there was such a security condition, but in effect claims that the doctor treated him unfairly.
3. There is no doubt that, if the opening and confiscation of the letter were in the course of implementing a necessary security condition, that conduct would be authorised by s47 of the Mental Health Act and would in turn be exempt from the prohibitions on discrimination in the EO Act by virtue of s69 of that Act. It is my view that it is the scheme of the Mental Health Act and of s47 in particular that an authorised psychiatrist or his or her delegate may impose necessary security conditions on a patient without having to be concerned whether those conditions may be discriminatory. The purpose of security conditions is to deal with urgent matters as and when they arise and it would frustrate this purpose if individual conditions were to be reviewable through claims under the EO Act. If a restriction is to be challenged on the basis it was not a security condition or was not necessary, it is (in my view) the scheme of the Mental Health Act that the challenge is to be made using the mechanisms and provisions of that Act. In this respect, my conclusion is similar to that of the Court of Appeal in H J Heinz Australia Ltd v Turner[8], although the facts of that case were somewhat different to these. The Mental Health Act gives responsibility for the judgment which must be made in opposing necessary security conditions to the authorised psychiatrist or his or her delegate, and not to VCAT exercising jurisdiction under the EO Act.
4. In my view, this claim is also manifestly hopeless and should be struck out.

1. The Institute submits that s69 of the EO Act exempts this conduct from the prohibitions on discrimination in that Act, because the conduct is authorised by another enactment. I agree.
2. Section 16B of the Mental Health Act requires that a security patient be given treatment for his or her mental illness. The objects of the Act emphasise this requirement. It is clear that Mr Garden claims that Dr Zimmerman's failure to believe him occurred in the course of his treatment for paranoid schizophrenia. That treatment is authorised by the restricted hospital transfer order under which he was admitted and detained in the Embling Hospital and required by s16B of the Mental Health Act. That treatment will require clinical judgments, including about the reality of what the patient tells the doctor. This is conduct authorised by the Mental Health Act, and therefore exempt from the prohibitions in the EO Act by virtue of s69 of that Act. The claim is manifestly hopeless and should be struck out.
3. I also agree with the Institute that, had the EO Act applied, it would be very difficult to apply the direct discrimination provisions to the claim. But because of my conclusion, it is unnecessary for me to consider this in detail.
4. I should, however, mention one submission of the Institute. The Institute submitted that a failure to believe someone, if that failure to believe were not acted on, was incapable of constituting 'treatment' for direct discrimination purposes. I do not agree. That failure to believe may influence the course of treatment which the doctor gives, so that it could not be said that the belief was not acted on. Section 8 covers proposed treatment as well as treatment. Just as section 4 of the Act expressly defines 'detriment' to include humiliation and denigration (that is words), words alone could also constitute 'treatment'. If the lack of belief were expressed in words, that might be 'treatment' for direct discrimination purposes.

1. The Institute submits that the claim concerning the continued presence of Mr Heeney in the ward in which Mr Garden was located is incapable of constituting 'services' to Mr Garden under s42 of the EO Act. I agree.
2. There is no suggestion in Mr Garden's material that Mr Heeney was providing any services to him. I would add that this claim appears to be a new and quite different claim to that in the complaint and that the Tribunal has no jurisdiction to deal with it. This part of the Heeney claim is manifestly hopeless and should be struck out.
3. The Institute next submits that the claim concerning the denial of Mr Garden's requests to have Mr Heeney replaced as his primary nurse/case manager is 'of no utility' because, at some time between the lodgement of the complaint and the filing of the particulars of complaint, the request was granted and a new primary nurse/case manager assigned to Mr Garden.
4. I am satisfied that this claim too should be struck out. First, if the 'service' is the granting of the request rather than the decision on the request, I consider that this is incapable of constituting a 'service' to which s42 of the EO Act applies[9]. Section 42 speaks of the refusal of services. But, if defined in this way, the granting of a request is not a service which can be meaningfully refused. The service is provided only if the request is granted. If the request is refused, there is no service. This is not the kind of 'service' which s42 contemplates.
5. Second, if the service is defined as the provision of a particular individual as primary nurse/case manager, the same difficulties arise. The granting of a request for a new primary nurse/case manager would involve the establishment of a new service.
6. Third, it seems to me that the true nature of the service provided by the Institute is the provision of nursing/case management services to each patient. It is not the provision of a particular individual as primary nurse/case manager. Nor is it the provision of a primary nurse/case manager chosen by the patient. No doubt the patient's views must be taken into account, but this is a different matter.
7. In my view, this claim is incapable of falling under s42 of the EO Act. It is manifestly hopeless and should be struck out. I would add that there are other difficulties in characterising this claim in the terms of the EO Act. Mr Garden does not explain why, or on what basis, he alleges that his requests for a new primary nurse/case manager were denied because of his impairment. It is also not clear what detriment he claims to have suffered, given that ultimately the Institute appears to have granted his request.

1. I have concluded that all the claims in the complaint should be struck out. Since they have been struck out in respect of the individuals claimed to have breached the Act, there can be no vicarious liability and no breach of the Act by the Institute. On this basis, I have ordered that the entire complaint be struck out.
2. I make one final comment. Some of Mr Garden's claims may indicate a general difficulty in communications between him and Institute staff, or even a break down in those communications. If this is so, it would be in the interests of all to work together to improve this situation. Not only would this make Mr Garden's environment more comfortable but it may well also benefit his medical treatment.

[1] See Rabel v State Electricity Commission [1998] 1 VR 102; and, for example, Norman v Australian Red Cross Society [1998] 14 VAR 243

[2] See for example IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1; Tomasevic v Strauss [2002] VCAT 395; Rainsford v State of Victoria [2008] FCAFC 31

[3] See for example s39 Equal Opportunity Act 1984 (Vic); Watters v Public Transport (1991) 171 CLR 349; Wojcik v Roads Corporation [1997] VADT 75, 10 September 1997;H J Heinz Australia Limited v Turner (1998) 4VR 872

[4] See the Sentencing and Mental Health Acts (Amendment) Act 2005 and s131 of the Sentencing Act

[5] See Part 6A and in particular ss117B-117D

[6] See Mental Health (Amendment) Act 2003 and Mental Health Act 1986 s149