JK (a pseudonym) v St Vincent's Hospital Sydney Limited

The primary judgment

1. The primary judge set out in clear detail the history and background to the application before him in terms which do not require full repetition for present purposes. He referred to evidence of Dr Cullen, who acknowledged that the applicant passionately disliked being subjected to the medication and that the medication had side effects, in particular, in the applicant's case, weight gain: at [15]. The primary judge noted that "[o]n balance, however, Dr Cullen believes that it is in [the applicant's] interests and in the interests of the community generally for him to continue to be medicated": at [15].
2. His Honour then noted that the applicant regarded Dr Cullen's opinions as "a load of patronising nonsense", and that the medication had had nothing to do with a number of improved or reconciled relationships, including with his parents: at [16]-[17]. The primary judge also noted that the applicant "forcibly argued that the medication was no use" and "presented himself as being caught in a Kafkaesque situation where his doctors - primarily Dr Cullen - have invested their authority in the efficacy of the compulsory medication and are not prepared to accept the reality, as [the applicant] sees it, that it is ineffective and even damaging": at [19]-[20].
3. The primary judge then said (at [21]): "Finally, and of most importance so far as this application is concerned, [the applicant] asserts that the medication interferes with his cognitive processes. He says that continuing the medication until the appeal will prejudice his ability to argue it. Again, [the applicant] presented his circumstances as involving a nightmare in which the compulsory medication makes it impossible for him to challenge the imposition of the medication in the first place."
4. The primary judge accepted the respondent's characterisation of what the applicant was seeking as being "in effect, a stay of the orders made by the Tribunal" and in substance a reversal of "the decision of the Tribunal until the appeal is determined", something which was highly unorthodox. His Honour framed the resolution of the application before him as coming down to the "limited question of balancing the harm or potential harm to the community if [the applicant]'s compulsory medication is stayed against the harm or potential harm to [the applicant] if it is continued." This was easy to resolve as, on the one hand, the judge had "medical opinion that the continuation of [the applicant]'s compulsory medication is desirable because it reduces the risk of [the applicant] forming and acting on homicidal or other violent thoughts" whilst, on the other hand, there was an absence of any "medical evidence to support [the applicant]'s assertion that the medication will prevent him from properly representing himself in the appeal."
5. The primary judge's conclusions at [32]-[34] were as follows: "[32] I should say that in the conduct of the application I found [the applicant] to be courteous and lucid. He is obviously a man of intellectual ability. I do not detect anything from the way he presented the application which would lead me to believe that he was labouring under cognitive difficulties which would make it impossible for him to conduct litigation. [33] I also think it is significant that [the applicant] has been on anti-psychotic medication for more than ten years. In an application for an injunction or a stay, maintenance of the status quo can be a very important consideration. In the present case, the status quo is that [the applicant] has been compulsory medicated and has been so medicated for a long period of time. [34] In my opinion it would not be proper for me to disturb that longstanding arrangement merely upon the say-so of [the applicant], and where the Hospital does not have the ability through the usual evidentiary processes to test [the applicant]'s assertions on a factual level. It seems to me that I have no alternative but to leave the current treatment plan in place until its efficacy can be fully and properly explored on the hearing of the appeal. For these reasons [the applicant]'s application by way of notice of motion fails and must be dismissed."

Disposition

1. The parties have sensibly consented to have the application for leave to appeal determined on the papers. Both filed written submissions, although it must be observed that the applicant's submissions ran to some 49 closely typed pages, largely although not wholly single spaced in small typeface and which appeared to incorporate a substantial portion of submissions that had been made at first instance and which had been included in his (29 page) summons.
2. On an application for leave to appeal and with respect to the applicant who was representing himself, submissions of this length and style are unhelpful, burdensome and, most significantly, in breach of the rules of Court which apply equally to represented and self-represented litigants. As Bell P observed in Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [35]-[38]: "[35] Mr Mohareb filed 35 pages of single spaced submissions in what appears to be either 9 or 10 point font in support of his application for leave to appeal. [36] The requirements for the length, content and form of written submissions is clearly set out in the UCPR. With respect to applications for leave to appeal, r 51.12(3) specifies that the summary of argument must not exceed 10 pages. Rule 51.36 outlines that written submissions must be in typeface that is no smaller in appearance than an Arial font in 11 point size or a Times New Roman font in 12 point size, and the lines of typing must be set at least 1.5 lines spacing from each other. [37] The submissions filed by Mr Mohareb clearly did not comply with these rules. To point this out is not to be pedantic or to invoke a technicality. The imposition of a page limit is consistent with the need for judicial resources to be deployed efficiently, the issues to be identified crisply, and the costs of litigation (including the costs of other parties to litigation who must respond to submissions) to be proportionate: see Civil Procedure Act 2005 (NSW) s 60. [38] Quite apart from being a flagrant breach of the UCPR, the filing of submissions of the length of those filed by Mr Mohareb is oppressive and illegitimate." (emphasis added).
3. Submissions in support of an application for leave to appeal should be informed by and directed to satisfaction of any one or more of the well-established criteria by reference to which leave to appeal is granted, namely an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: see, for example, Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; and Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]. The 10 pages permitted by the Uniform Civil Procedure Rules 2005 (NSW) r 51.12(3) for submissions in support of an application for leave should be used to demonstrate how one or more of the criteria for leave is satisfied and what the errors are in the decision sought to be appealed. They should not be used for the bare repetition of submissions made at first instance.
4. Additionally, when the decision from which leave to appeal is sought involves, as in the present case, an exercise or element of discretion, there are well-established strictures against over-ready appellate interference, with the correlative need for "added restraint" associated with House v R (1936) 55 CLR 499; [1936] HCA 40 (House v R): see PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [5]. A heavy burden therefore lies on an applicant seeking leave to appeal from a discretionary judgment on a question of practice or procedure, and submissions should expressly deal with reasons, consistent with House v R, why any discretionary decision should be interfered with.
5. The primary judge's decision was not only open to his Honour, but was undoubtedly correct. Not only did the interlocutory relief sought by the applicant seek to alter the status quo, it sought to do so by seeking the reversal, on an interim basis, of the central aspect of the very decision that was being sought to be challenged on appeal. This would have been to turn the appeal process on its head.
6. The applicant's argument, moreover, was based on nothing more than his unqualified, although no doubt genuinely held, opinion as to the effect of the medication on his cognitive abilities. He repeated that assertion in part of his written submissions. Repeated assertion does not cure an evidentiary deficit.
7. That portion of the applicant's written submissions which does not repeat, verbatim, what had been put in the proceedings below is directed to a paragraph by paragraph, and in some cases, a sentence by sentence critique of the reasons of the primary judge. It is not necessary to summarise it, and indeed it would be difficult to do so. The balance amounts to a commentary and gloss on the history of the applicant's treatment as recounted by the primary judge and as set forth in an affidavit of Dr Cullen relied upon by the respondent at first instance. However, it may be noted that at page 6 of the applicant's submissions (pages 15-49 are numbered paragraphs, but the first 15 pages are not) it is volunteered that the applicant does not assert that the primary judge's "verdict was 'wrong in law'", although he asserts that it was unreasonable, illogical, could not be supported on the evidence and was a miscarriage of justice.
8. The fundamental premise of the applicant's argument based on "logic" appears to be, as it was at first instance, that a person who seeks to challenge a mandated medication is necessarily inhibited in his or her ability to appeal from such an order whilst subject to that medication. As the applicant put it at para 36 on page 47 of his written submissions, "it is repugnant to set a precedent whereby a member of the public can rely upon a [public] body to incapacitate their victim from opposing that incapacitation". The logic of that proposition is not self-evident and would be dependent, amongst other matters, upon the medication in question, its properties and effect, and be a matter for expert medical or scientific evidence. Even if such evidence were forthcoming, and none was before the primary judge, the balancing exercise that the primary judge engaged in would still need to be undertaken and it would be an exceptional case indeed where relief of the kind sought by the applicant would ever be contemplated, still less considered appropriate.
9. As far as any substantial injustice is concerned, the primary judge made respectful observations as to the applicant's ability to represent himself in the primary appeal, including by noting that he had legal qualifications. Whilst his Honour's observation was necessarily impressionistic, it detracts from any suggestion, by way of assertion, that the applicant will be unable to conduct his primary appeal by reason of his ongoing medication.
10. Finally, and perhaps most obviously, the 2019 CTO which was the subject of the interlocutory relief sought before the primary judge was one that expired on 18 September 2020. The application for leave to appeal thus wholly lacks utility, that date having long since passed.
11. True it is that a further CTO (the 2020 CTO) of similar effect to the 2019 CTO was apparently made on 15 September 2020 and that a challenge to that order has been added to the primary appeal which awaits hearing before the Supreme Court: see [4]-[5] above. But no relief was sought in relation to that order before the primary judge; indeed, it had not been made at the time of determination by his Honour of the notice of motion. This Court lacks any jurisdiction in relation to that order. It has not been the subject of any judgment from which leave to appeal has been or could be sought. This is not to encourage an interlocutory challenge to the 2020 CTO of the same kind as was made to the 2019 CTO. It is simply to explain why the current application for leave to appeal lacks utility and must be dismissed.
12. There is no reason why the application should not be dismissed with costs.

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