K v St Vincent's Hospital Sydney Limited

Relevant principles

1. Pursuant to r 6.29 of the UCPR, the Court may remove a party that has been "improperly or unnecessarily joined" to the proceedings. In determining to remove a party pursuant to r 6.29 of the UCPR, consideration is given to whether the rights, interests or liabilities of the relevant party would be affected by any order that may be made, or that party's joinder was necessary effectually and completely to determine all matters in dispute (see Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd (2013) 272 FLR 365; [2013] NSWSC 36 at [142]-[145], per Hallen J).

Tribunal parties' submissions

1. The submissions of the second to fifth defendants (the Tribunal parties), which were prepared prior to the removal of the second defendant as a party, contend that they are neither necessary nor appropriate parties to appeal proceedings brought pursuant to either s 67 or s 163 of the Mental Health Act. It is no longer necessary to address the position of the second defendant (which has now been removed as a party without opposition by K thereto).
2. As to the Tribunal Members, it is submitted, first, that the relief sought against them (including their removal from the Tribunal (prayer 8), costs, and other damages (prayer 11)), is misconceived. Leaving aside any question of power, the Tribunal parties submit that such relief would not be appropriate having regard the role of this Court in conducting a hearing de novo pursuant to s 164 of the Mental Health Act. It is noted that the Tribunal and its members are protected as against orders for costs by s 168 of the Mental Health Act. It is further submitted that the Amended Summons sets out no basis for the relief sought against the Tribunal Members.
3. Second, to the extent that the present proceedings seek to extend beyond the scope of a de novo appeal under the Mental Health Act, it is submitted that the Tribunal Members are protected pursuant to s 145 against proceedings brought for acts and omissions made in good faith in performance of the Mental Health Act. They argue that it is not appropriate to "subvert" that provision by naming and seeking those orders against the Tribunal Members for the purposes of a statutory appeal. It is submitted that, having regard to the statutory indemnity provisions in the Mental Health Act and the "misconceived" nature of the relief sought, it could not properly be said that the Tribunal Members' rights, interests or liabilities are affected by the proceedings (and hence that they are not necessary or appropriate parties to be joined).
4. The Tribunal Members point to a number of cases in which appeals under the Mental Health Act have been determined without joining the Tribunal or its members (referring to B v St Vincent's Hospital Sydney Limited [2016] NSWSC 392; and SMF v South Western Sydney Local Health District [2018] NSWSC 303). It is noted that, in M v Mental Health Review Tribunal [2015] NSWSC 1876 (M's case), where the Tribunal had filed a submitting appearance when named as a defendant, Lindsay J observed that the Tribunal is "not a necessary party to the plaintiff's appeal" (see at [10]). The Tribunal Members submit that that is the correct and preferable position where individual members are named.
5. The Tribunal parties have sought no orders as to costs in respect of their notice of motion.

K's submissions

1. K accepts that r 6.29 of the UCPR empowers the Court to order the removal of a party who has been improperly or unnecessarily joined to proceedings but argues that the Tribunal members have been properly joined and are necessary parties to the proceedings.
2. K's position is that, although the primary thrust of the proceedings is to have the Community Treatment Order set aside, he also seeks (among other things): to expose the "corruption" of the Tribunal; to argue that the Tribunal Members acted in "complete defiance" of the objects and principles (and with complete disregard for the espoused values) of the Tribunal; and to seek an order for the removal of the third to fifth defendants as members of the Tribunal.
3. In his submissions, K says that he is in the process of drafting a comprehensive affidavit supporting his claim that: … the ruling of the Tribunal was baseless, prejudiced, extraordinarily restrictive, deaf to the arguments of the Plaintiff, dangerous to the Plaintiff as well as his community, disingenuous, coercive, and "the rubber stamp of a kangaroo court" - in other words, "corrupt".
4. K maintains that s 164(1) of the Mental Health Act gives this Court power "beyond that of the Tribunal, such as to order the removal of the relevant members of the Tribunal from duty".
5. K also apparently contemplates issuing a subpoena for the production of all the information upon which the Tribunal relied (for its decision to continue the Community Treatment Order). As to the Tribunal (although ultimately he did not resist its removal as a party), K's position was that its joinder was necessary effectually and completely to determine all matters in dispute, in effect to determine exactly what the grounds were for the Tribunal to "play along with" the conduct of the treating doctors (who he accuses of dishonesty).
6. As I follow his submissions, K contends that the treating doctors are part of a "scenario", relying on the Tribunal and its members to behave in a "corrupt" way with regard to their treatment, official reports and conduct (which he terms the "Streichler Scenario"); conduct which K maintains he must "very reluctantly prosecute" under the Crimes Act 1900 (NSW).
7. As to the Tribunal Members, K submits that it is not a case of the rights, interests or liabilities of the relevant party (i.e., here the Tribunal Members) being affected by any order; rather he maintains that the Tribunal Members never had the right to act as they have and says that he calls upon the Court so to rule. K maintains that his rights and interests (and those of his community) have been affected by the order of the Tribunal Members. However, K goes to say that the rights, interests or liabilities of the Tribunal Members would be affected by any order that may be made "such as to ensure they are no longer empowered or authorised to participate in the threat described [in K's submissions] and persistently since the inception of The Scenario, by standing them down from the duties of Tribunal members".
8. In response to the Tribunal parties' submissions, K emphasises his contention that the basis for overturning the original decision is "extremely relevant", maintaining that the fundamental grounds for making a Community Treatment Order (such as that the subject be mentally ill) have never been present in his case. It is said that "in light of this, the bald-faced absence of a valid, not to mention sound, or even plausible explanation for such a decision. The Tribunal must get the opportunity to excuse it". (Pausing here, as already noted, the appeal will be a de novo hearing. Hence the issue is not whether the Tribunal can "excuse" its decision as such; the decision whether to continue the Community Tribunal Order is to be considered afresh.)
9. K accepts that, since its joinder, the first defendant has taken the role as an active defendant to these proceedings and (as adverted to above) concedes that it is not necessary for the Tribunal itself to be party to the proceedings. However, K maintains that, under the specific circumstances of the "Scenario" K has identified, the joinder of the individual members of the Tribunal is both "quite appropriate and eminently necessary". K says that the fact that the Court may be empowered to remove them as members of the Tribunal (even without joining them as defendants to this action) is no argument for insisting that they must be removed; and says that including them as defendants "does not prohibit the ability to remove them if/when established as appropriate and necessary, and, better communicates the position (whether it is that of the plaintiff or the instigator of the Scenario) in this action: not just there has been a miscarriage and abject perversion of justice, but that these individuals have committed it".
10. As to the contention that the Tribunal Members are protected against proceedings brought for acts and omissions made in good faith in performance of the Mental Health Act, K reiterates his position that the Tribunal Members have not acted in good faith. He submits that, to allow the removal of these defendants from this action on the presumed basis that they acted in good faith, is to deny the sought leave to appeal "made on the basis of that paucity of good faith, amongst others". In particular, K says that the Tribunal Members are not protected from orders if bad faith and "corruption" are found on the balance of probabilities (and not mere incompetence). K expresses the hope that this Court will recognise the selfishness, cowardice, and dishonesty of his Treatment Team, and the role of "corrupt" sanctioning, concealing, and facilitation by the Tribunal, as constituted, upon which he says such acts (of selfishness, cowardice and dishonesty) rest. K's argument is that "corrupt" Tribunal Members are necessary to impose a Community Treatment Order upon him and he says that he wishes to reveal that in open court. K says that he expects to submit an extensive affidavit containing numerous grounds for relief against all defendants.
11. K reiterates that, given the relief sought, the rights, interests or liabilities of the Tribunal Members will be affected "by any order that may be made" (as I understand it referring to the removal and costs/damages orders sought), and therefore that they ought not be removed as parties.
12. K identifies a central issue in this action as being the "open threat to rely upon the corruption of officials in the community, such as the Tribunal ('s members) [sic]". K submits that he "has unwaveringly been lucid about that being the core of the danger posed by such a nefarious ploy". K says that the precedents referred to in the Tribunal parties' submissions do not centre around that issue.
13. K points out that the fact that in M's case (see above), Lindsay J did not consider the Tribunal to be a necessary party to the appeal, nonetheless does not preclude Tribunal members from so being. K says that this is particularly important when Tribunal members (as he says is here the case) are explicitly implicated in the wrongdoing with which the defendants in this action are charged.

Determination

1. Insofar as K resists the removal of the Tribunal Members as parties to the proceedings on the basis that K is proposing to issue a subpoena for the material before the Tribunal (and I interpose to note that it is not clear that he is proposing to issue subpoenas to the Tribunal Members themselves as opposed to the Tribunal), this would not be a basis for it to be concluded that they were necessary or appropriate parties to the proceedings.
2. Insofar as K maintains that the Tribunal Members are necessary parties because he will be seeking orders for their removal, this submission is not without difficulty. As a starting proposition, it appears that K seeks the removal of the Tribunal Members as members of the Mental Health Review Tribunal (contra, say, their removal as members of the Tribunal as constituted from time to time for the purposes of determinations relating to K and K's care on the basis of, for example, apprehended bias). In that regard, it is not explained how the supervisory jurisdiction of this Court would extend to removal of a member of the Tribunal from office (again, contra, for example, recusal for bias which could come within the supervisory and/or appellate jurisdiction of this Court and/or the Court of Appeal). Relevantly, K does not here allege error in the nature of bias or such error and he is not seeking relief of the relevant kind which I have just described.
3. More specifically, removal of a member of the Mental Health Review Tribunal may be effected by the Governor or the Minister (see cl 8(2) of sch 5 of the Mental Health Act; and ss 75(1), 77 of the Government Sector Employment Act 2013 (NSW)); otherwise the office of a member becomes vacant in the circumstances specified in cl 8(1) of sch 5 of the Mental Health Act. Relevantly, K has not sought relief by way of judicial review in the nature of mandamus or otherwise in relation to the exercise of non-exercise of those powers.
4. As to K's suggestion that he is seeking to prosecute the Tribunal Members for breach of the criminal law, this suffers from the difficulties attendant on private prosecution of criminal conduct. While K (generally speaking) might be able to institute private prosecution of criminal conduct, he must submit such claims following the procedure established in ss 14 and 49 of the Criminal Procedure Act 1986 (NSW). K has not done so to date. I note also for the sake of completeness the High Court's recent discussion of the issue, albeit in the specific context of Commonwealth legislation, in Taylor v Attorney-General (Cth) [2019] HCA 30; 372 ALR 581.
5. As to the contention that the statutory indemnity in s 145 of the Mental Health Act does not assist the Tribunal Members because it applies only where duties have been performed in good faith, and that to remove them as defendants on this basis would in effect be to prejudge the appeal that K seeks leave to bring, the difficulty is that at present there is simply an Amended Summons seeking a broad range of relief. There is no cause of action clearly identified against the Tribunal Members that would lead me to conclude that they are necessary parties to be joined to these appeal proceedings (and any such claim would need to be properly pleaded and particularised given the seriousness of allegations of corruption and dishonesty (let alone any allegation of criminal conduct) - see generally, for example in the civil context, r 14.14 of the UCPR; Ritchie's Uniform Civil Procedure NSW at [14.14.5], [14.14.25]; and Banque Commerciale SA (en liquidation) v Akhil Holdings Limited (1990) 169 CLR 279 at 285-286, per Mason CJ and Gaudron J, concerning comparable actions based on fraud).
6. I accept that the Tribunal Members would be necessary parties to be joined if there were to be a properly pleaded and particularised set of allegations which, if established, would give rise to a cause of action against them individually by K to which the statutory indemnity would not (or arguably would not) provide a complete defence. However, in the absence of such a pleading, it is not consistent with the overriding statutory mandate for the just, quick and cheap resolution of the real issues in dispute (in accordance with s 56 of the Civil Procedure Act 2005 (NSW)) that the Tribunal Members be joined individually as parties to the proceedings.
7. Accordingly, I will order their removal. I should make clear that this does not preclude K from seeking leave to file a statement of claim in which he might properly plead a cause of action against the individual Tribunal Members; though I am by no means to be taken to be encouraging this.
8. However, allegations of the kind adverted to by K (of corrupt conduct or dishonest conduct or conduct in performance of their duties in bad faith let alone of criminal conduct) would need to be expressly pleaded and properly particularised.
9. It is not in the interests of the just, quick and cheap resolution of the real issues in dispute, or the administration of justice in general, for the third to fourth defendants to be vexed with the cost of defending proceedings in which as yet there is no properly pleaded and particularised cause of action against them.
10. Finally, for completeness, I note that K has sought in his submissions that his work in having to respond to this motion (being approximately 10 hours' worth), be added to any potential cost assessment. It is not clear the basis on which that submission is made. Insofar as it seems to be a submission that K be permitted to recover costs for his time as if costed by a paralegal, I note that in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2009) 372 ALR 555, in which the High Court has recently discussed the position concerning the recovery of costs by a self-represented litigant. I note in particular that Kiefel CJ, Bell, Keane and Gordon JJ opined (at [1], [3]) that: [1] As a general rule, a self-represented litigant may not obtain any recompense for the value of his or her time spent in litigation. Under an exception to the general rule, a self-represented litigant who happens to be a solicitor may recover his or her professional costs of acting in the litigation. This exception is commonly referred to as "the Chorley exception", having been authoritatively established as a "rule of practice" by the Court of Appeal of England and Wales in London Scottish Benefit Society v Chorley [(1884) 13 QBD 872 at 877]. … [3] … the Chorley exception is not only anomalous, it is an affront to the fundamental value of equality of all persons before the law. It cannot be justified by the considerations of policy said to support it. Accordingly, it should not be recognised as part of the common law of Australia.
11. Unless K can show some other ground on which to found his claim, the above authority necessarily precludes the recovery of an amount by way of costs for his time in responding to the notice of motion as if costed by a paralegal.

Orders

1. For the above reasons, I make the following orders: 1. Pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005 (NSW) order that the third, fourth and fifth defendants respectively in the plaintiff's Amended Summons Seeking Leave to Appeal filed on 15 May 2020, be removed as parties to the proceedings without prejudice to any application that the plaintiff may wish to make for leave to file a statement of claim in which there is articulated a properly pleaded and particularised cause of action individually against one or more of the third to fifth defendants and hence for leave for one or more of them to be re-joined to the proceedings. 2. There be no order as to the costs of the notice of motion filed by the second to fifth defendants on 22 May 2020. 3. Remit the matter to the Registrar for directions.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 June 2020