McLaughlin v Fosbery [1904] HCA 55

McLaughlin v Fosbery [1904] HCA 55 - HCA 1904 case summary — Zoe

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H.C. or A. order may be shortly stated as follows: [the learned Chief Just 1904. stated the facts of the case, and continued] : - ree The term "Court," as defined by sec. 3 of the Act, means the Fosurgy axp Supreme Court in its Lunacy jurisdiction. And, although Orners. title of the Act is "An Act to consolidate the law respecting the insane," and the Act purports to be a consolidation Act only, we think there is nothing in the context of sec. 172 to exclude this interpretation, notwithstanding that the effect is, in this respect, - to alter the previous law, under which an application to stay was required to be made to the Court in which the action was pending, At the hearing of the summons it was objected for the appellant that his apprehension and conveyance to a private hospital for the insane were not acts done for the purpose of carrying out any of the provisions of the Lunacy Act within the meaning of the section, although his reception there might be such an act; that the defendants' justification, if any, for the apprehension must bea common law, and that the section had, therefore, no application to the case so far as regards the apprehension. The argument for the respondents was based on sec. 16 of the Act, which provides that when a person has been found insane by any proceedings in Court, an order signed by a Judge, or by the committee appoint by the Court, and having thereto annexed an office copy of the order appointing such committee, shall be sufficient authority for the reception of such person into a hospital for the insane, or licensed house (i.¢., private hospital for the insane), without any further order or medical certificate. It was contended that. sim the reception of the appellant into Dr. Vause's hospital wa: authorized by the Act, his apprehension for the purpose of con- veying him there was an act done for the purpose of carrying out the provisions of the Act, viz. the provisions authorizing h reception. This view commended itself to the learned Chi Judge and to the Full Court on appeal. The learned Judge first instance said in the course of his judgment : - '"See. 16 do not in terms provide for taking an insane person to a hospital licensed house, but such power is, in my opinion, nece: implied from the provisions which authorize his reception in such institution and his detention there and his recapture i escapes." -On the same point, Pring, J., said: - "We must nol

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nust have been before the justices), "shall be received into, and letained in, such hospital or licensed house accordingly." In urgent cases the justices may act provisionally upon one certificate mly. See. 7 allows persons brought before justices under the Act to be remanded to a reception house or private hospital. See. 9 ides that "any person may be received and detained as a patient in a hospital for the insane or a licensed house on the mithority of a request under the hand of some person" in the eseribed form duly attached, and accompanied by a statement particulars and two medical certificates, as to which detailed ections are given (secs. 9, 10, 11, 12, 13), all having for their apparent object the prevention of any undue interference with personal liberty. It is important to observe that section 9 con- tains no provision as to the apprehension or removal of the upposed lunatic. Sec. 14 limits the duration of a justice's order for reception to 21 days after the date of the latest of the medical ertificates. Sec. 15 provides for the amendment of errors in orders, requests, medical certificates or other documents. Sec. 16, ready quoted, provides that an order the committee appointed by the Court with an office copy of the order appointing him annexed "shall be sufficient authority for reception of such person into any hospital for the insane or licensed house without any further order or any such medical certificate as hereinbefore mentioned." This section, like sec. 9, ontains no provisions as to the apprehension of the patient or removal to a hospital or licensed house. See. 17 makes it a misdemeanour to receive any person into a hospital for the insane, eption house, or licensed house, or other appointed place, "without such order Statement and medical certificate or other oper authority as in such cases is required under the provisions of this Act." Sec. 18 authorizes the retaking of escaped patients, and their conveyance, reception and detention in the place from they have escaped.

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ourt, is single, and an order of the Court made within its juris- ion, in the sense that it is made by virtue of the authority sted in the Court by law, cannot be impeached merely because he formal documents describe it as made under a Statute difterent rom that which actually confers the authority. If, as was erly the case in England, but was never the case in New outh Wales, the general judicial power of the State were dis: ributed among several different Courts, an order of one Court ot within its province could not be supported by showing that tcould have been made by another Court. But this argument ; not applicable to a single Court in which all the judicial ower of the State is vested. e proceed to apply these principles to the present case. The pplication was made to the learned Judge of first instance upon pplication purporting to be made to him asa Judge in Equity mnder the jurisdiction conferred by the Lunacy Act. If he had the same view of the law as we do, he would have refused make the order asked for in the exercise of that jurisdiction. ihe had then been asked to make an order to the same effect nder the general jurisdiction which he had as a Judge of the 'upreme Court, and for that purpose to allow an amendment of the proceedings, he would probably have refused to do so. Nor ould any objection have been taken to such refusal? Not, how- because he had no power to entertain the matter in the ise of his common law jurisdiction, but because, according to o the course of the Court, it was more convenient that such an lication should be made to another Judge. When the case e before the Full Court a similar application might have been lade to them. That it could have been made and granted, the of Re Pearson, L.R., 5 Ch., 982, and Re Currie, L.R., 10 93, afford complete authority. In those cases the Lords Jus- sof Appeal did not merely exercise their jurisdiction under a nt Statute, but exercised a jurisdiction conferred upon them members of an entirely different tribunal from that in which

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