State of New South Wales v Roberson

Court of Appeal (NSW)|2016-05-26|Before: Beazley P, Basten JA, Macfarlan JA

307 Northern Territory v Mengel (1995) 185 CLR 307 Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319; [2010] HCA 41 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Quach [2010] VSCA 106; 201 A Crim R 522 Samad v District Court of New South Wales (2002) 209 CLR 140; [2002] HCA 24 Tonab Investments Pty Ltd v Optima Developments Pty Ltd (2015) 90 NSWLR 268; [2015] NSWCA 287 Texts Cited: Mark Aronson, "Misfeasance in Public Office: A Very Peculiar Tort" (2011) 35 Melb U L Rev 1

New South Wales Law Reform Commission, People with cognitive and mental health impairments in the criminal justice system - Diversion; Report 135 (June 2012) at [10.21] and [10.25

NSW Government Gazette No 45, Special Supplement, 24 April 2008, p 2957

J F Stephen, Digest of the Criminal Law (3rd ed, 1883) Category: Principal judgment Parties: State of New South Wales (First Applicant/First Cross-Respondent) Dr Harry Freeman (Second Applicant/Second Cross-Respondent) Northern NSW Local Health District (Third Applicant/Third Cross-Respondent) Darren Maxwell Roberson by his tutor Dale Maxwell Roberson (Respondent/Cross-Applicant) Representation: Counsel: Mr J Maconachie SC/Mr G Bateman (Applicants/Cross-Respondents) Mr D Hooke SC/Mr S Lawrence (Respondent/Cross-Applicant)

Solicitors: Lea Armstrong, Crown Solicitor (Applicants/Cross-Respondents) Hooper Legal Solicitors (Respondent/Cross-Applicant) File Number(s): 2015/209983 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 19 June 2015 Before: McLoughlin DCJ File Number(s): 2012/193105

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

headnote [This headnote is not to be read as part of the judgment] On 5 March 2009, Darren Maxwell Roberson appeared before the Local Court in Lismore on charges of assault, assault occasioning bodily harm and malicious damage to property. At this appearance, the magistrate ordered that Mr Roberson be taken to the local mental health facility for assessment pursuant to s 33(1) of the Mental Health (Forensic Provisions) Act. Mr Roberson was assessed by two medical practitioners, who issued certificates stating that he was a mentally ill person. The following day he was brought back before the magistrate and remanded in custody, bail refused. On 10 March the Director-General of the Department of Health signed an order that the claimant be transferred to a mental health facility, pursuant to s 55 of the Forensic Provisions Act. On 14 May 2009, Mr Roberson was transferred to Long Bay Prison Hospital, a declared mental health facility. Mr Roberson brought proceedings in the District Court against the State of New South Wales alleging that he had been unlawfully imprisoned from 6 March, due to his being held in correctional centres rather than mental health facilities. He also alleged that the failure of Dr Harry Freeman (one of two medical practitioners involved in certifying him as mentally ill) to arrange for his admittance to the Lismore facility, amounted to misfeasance in public office. The Health District was sued as vicariously liable for Dr Freeman's tortious conduct. The District Court found in favour of Mr Roberson's claims of unlawful imprisonment, awarding him $78,000 in damages. The three defendants appealed the primary judge's finding of unlawful imprisonment and misfeasance. Mr Roberson cross-appealed on matters relating to the period of his unlawful imprisonment, the nature of the tort identified by the primary judge and the damages awarded. Issues for determination on appeal were: (i) whether detention in a correctional centre is unlawful once a person is certified as mentally ill; (ii) whether a mental health inquiry is necessary or available, once a mentally ill person is no longer detained in a mental health facility; (iii) whether the Local Court magistrate's subsequent order for detention was inconsistent with a prior order for a medical assessment, and if so whether an inconsistent order is a nullity and without legal effect; (iv) whether there is a duty to admit a person found to be eligible, for detention in a mental health facility (pursuant to s 18 Mental Health Act 2007 (NSW)); (v) whether continued detention in prison for 14 days following an order for transfer pursuant to s 55 Forensic Provisions Act, was unlawful; (vi) whether Dr Freeman was under an obligation to detain Mr Roberson in a mental health facility, and to bring him before a magistrate for a mental health inquiry following his certification as a mentally ill person, and whether his failure in so doing constituted misfeasance in public office. The Court held, (per Basten JA, Beazley P and Macfarlan JA agreeing), upholding the appeal and dismissing the cross-appeal: In relation to (i)

An order requiring that a person be detained in a mental health facility for the purposes of a mental health assessment is spent once a mental health assessment has been completed, pursuant to s 33 Forensic Provisions Act: [1]; [11], [35]; [94]. In relation to (ii)
An "assessable person" is defined as a person detained in a declared mental health facility for whom a mental health inquiry is required to be held once two medical officers conclude that a person is mentally ill, (ss 17, 34 Mental Health Act). When no longer so detained, the obligation that the person be brought before a magistrate for the purposes of a mental health inquiry no longer arises: [17]-[19]; [91]-[94]. In relation to (iii)
No inconsistency in orders exists where an earlier order has been spent (see (i) above). Section 33(1) Forensic Provisions Act expressly confers power on a magistrate to make an order for detention in a mental health facility without derogating from any other order. Where no reference is made to an earlier order in a later order, the later order is to be treated as impliedly revoking or superseding the earlier order: [29], [32], [37]. Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19, referred to. In relation to (iv)
The statutory context does not support a construction of s 18 of the Mental Health Act that invites an implication that a person who comes within the circumstances identified in the provision "must" be detained in a declared mental health facility: [38]-[43]. Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44, discussed. In relation to (v)
Section 58 of the Forensic Provisions Act envisages that a person may not be transferred subject to an order made pursuant to s 55. A failure to comply with statutory requirements (for the provision of reports, and for the conduct of a review) is not sufficient to render the continued imprisonment unlawful: [52]-[56]. In relation to (vi)
Undertaking a statutory function is not sufficient to constitute the relevant person as the holder of a public office. Dr Freeman validly exercised his statutory function in forming an opinion that Mr Roberson was a mentally ill person, but was not the relevant authorised medical officer as defined by s 4, and subject to s 27(d) Mental Health Act: [69], [73], [79]-[80].
The necessary mental element to establish the tort of misfeasance was not evident in the material presented at trial, nor on appeal. Where a discretionary power exists which could be lawfully exercised in some circumstances, a decision not to exercise it does not, without more, demonstrate that foreseeable harm was intended, thus establishing the mental element: [85]-[86], [88]-[89].

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of Basten JA and the additional observations of Macfarlan JA. I agree with Basten JA's reasons and the orders his Honour proposes. I also agree with the additional observations of Macfarlan JA.
BASTEN JA: On 5 March 2009 Darren Maxwell Roberson appeared before the Local Court at Lismore on three charges of assault, assault occasioning bodily harm and malicious damage to property. The magistrate, being of the opinion that he was a mentally ill person, ordered that he be taken to the local mental health facility for assessment. He was duly assessed by two medical practitioners who diagnosed paranoid schizophrenia and issued certificates stating that he was a mentally ill person.
Mr Roberson could have been detained as an involuntary patient at the Lismore Adult Mental Health Unit. However, that did not happen. He was taken back before the magistrate the following day and remanded in custody, bail refused, until 14 May 2009, when he was transferred to Long Bay Prison Hospital, which is a declared mental health facility. [1]
In 2012, Mr Roberson (hereafter "the claimant") brought proceedings in the District Court alleging that he had been unlawfully imprisoned when held in police cells or a correctional centre on and from 6 March 2009. He also made a claim against Dr Harry Freeman, one of the two medical practitioners who certified that he was mentally ill on 5 March 2009, alleging that his failure to arrange for him to be admitted to the Lismore facility involved misfeasance in public office. For the purposes of the claim of unlawful imprisonment, the defendant was the State of New South Wales; with respect to the claim of misfeasance in public office, the defendants were Dr Freeman and the authority responsible for the operation of the Lismore Base Hospital (which included the mental health facility), now known as Northern New South Wales Local Health District.
On 19 June 2015, the trial judge, McLoughlin DCJ, upheld the claims against each of the three defendants and awarded the claimant $78,000 in damages. Each of the three defendants appealed against the findings of liability and the orders for damages. The claimant cross-appealed, contending that the period of unlawful imprisonment should have extended until 12 June 2009, and also contending that the judge had wrongly identified the nature of the tort, thus challenging the finding that from 24 March 2009 he had lost only an element of "residual liberty" in being confined in a prison rather than a mental health facility. The claimant also alleged failure on the part of the trial judge to award proper amounts for aggravated and exemplary damages.
For the reasons explained below, the appeal should be upheld and the cross-appeal dismissed. Because no liability was established on the causes of action, the issues as to loss and damages do not arise.

Unlawful imprisonment

The allegation of unlawful imprisonment is intuitively unsound: it is based on the proposition, not that those who actually held the claimant in custody had acted unlawfully, but that a third party, who should have detained the claimant but did not, thereby caused his unlawful detention by those who otherwise acted lawfully. Such a claim could arise only if, once the claimant had been certified to be a mentally ill person, he could no longer lawfully be held in a correctional centre as defined by the Crimes (Administration of Sentences) Act 1999 (NSW).
It was the last proposition which the claimant failed to make good. His case in that regard did not depend on any breach of a duty of care on the part of an authorised medical officer; it depended upon a lack of power to detain him in a correctional centre, once he was certified to be a mentally ill person. To understand why that argument failed it is necessary to set out the statutory scheme dealing with mentally ill persons charged with criminal offences, as in force between 5 March and 12 June 2009. (There have been significant amendments to the legislation commencing after that period.)

(a) statutory scheme

The order made by the magistrate on 5 March 2009 was an exercise of the power conferred by s 33(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Forensic Provisions Act"), [2] which, at that time, provided: 33 Mentally ill persons (1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate that the defendant is a mentally ill person, the Magistrate (without derogating from any other order the Magistrate may make in relation to the defendant, whether by way of adjournment, the granting of bail in accordance with the Bail Act 1978 or otherwise): (a) may order that the defendant be taken to, and detained in, a mental health facility for assessment, or (b) may order that the defendant be taken to, and detained in, a mental health facility for assessment and that, if the defendant is found on assessment at the mental health facility not to be a mentally ill person or mentally disordered person, the person be brought back before a Magistrate or an authorised officer, or (c) may discharge the defendant, unconditionally or subject to conditions, into the care of a responsible person.
The separate forms of orders provided by paragraphs (a), (b) and (c) do not reflect any self-evident scheme. For example, the term "authorised officer" is defined in s 33(6) as a reference to an authorised officer within the meaning of the Criminal Procedure Act 1986 (NSW). On the other hand, s 33(1D) uses the term "authorised officer" in the sense of an officer authorised to grant bail under the Bail Act 1978 (NSW) (as then in force). It may, however, be accepted for the purposes of the present case that an order pursuant to par (b), expressly providing that the person is to be brought back before a magistrate or an authorised officer if found not to be a mentally ill person, is intended to ensure that, where no such step has been taken earlier, consideration will be given to the release of the person on bail. By contrast, par (a) makes no provision for what should happen after the person has been assessed. Such an order, it may be assumed, would be appropriate where bail has already been addressed, and there is therefore no need to bring the person back before the court to deal with continuing custody, whatever the outcome of the assessment.
If this aspect of the analysis of s 33(1) is correct, it says nothing about what should or must happen if the person is found to be a mentally ill person. However, it is clear that the order under s 33(1), requiring that the person be taken to, and detained in, a mental health facility "for assessment", will be spent once the process of assessment is complete. The term "assessment" is not defined and its meaning must be derived from its statutory context.
The first step is to note the relevant provision in s 18, being the first provision in Pt 2, Div 2 of the Mental Health Act 2007 (NSW): [3] 18 When a person may be detained in mental health facility (1) A person may be detained in a declared mental health facility in the following circumstances: … (e) on the order of a Magistrate or bail officer (see section 24)….
The reference to a "declared mental health facility" is to premises which have been gazetted as such and broadly covers facilities run by the NSW Department of Health. (The phrase "mental health facility" includes both a declared mental health facility and a private mental health facility. [4] ) Section 24 provided as follows: 24 Detention on order of Magistrate or bail officer A person may be taken to and detained in a declared mental health facility in accordance with an order made under section 33 of the Mental Health (Forensic Provisions) Act 1990.
After provisions specifying who may be involuntarily detained, s 27, also in Div 2, provides five steps by which such a person is to be examined. The critical steps for present purposes were steps 1, 2 and 4: 27 Steps for medical examination requirements for ongoing detention in mental health facility The following steps must be taken in relation to a person who is detained in a mental health facility under this Division: … (a) Step 1 Initial examination by authorised medical officer An authorised medical officer must examine the person as soon as practicable (but not later than 12 hours) after the person arrives at the facility or after the person is detained after being a voluntary patient. The person must not be detained after the examination unless the officer certifies that, in the officer's opinion, the person is a mentally ill person or a mentally disordered person. (b) Step 2 Examination by second medical practitioner The authorised medical officer must cause the person to be examined by another medical practitioner as soon as possible after giving the certificate in step 1. The second examiner must be a psychiatrist if the authorised medical officer is not a psychiatrist. The second examiner must notify the authorised medical officer in the form prescribed by the regulations if of the opinion that the person is a mentally ill person or a mentally disordered person or if not able to form such an opinion. … (d) Step 4 Mental health inquiry or discharge An authorised medical officer must bring the person before a Magistrate for a mental health inquiry if: (i) the person is found to be a mentally ill person by an authorised medical officer on initial examination in step 1, and to be a mentally ill person or a mentally disordered person on examination in step 2 or step 3, …. The person must be brought before a Magistrate as soon as practicable after the authorised medical officer is notified of the relevant finding of the second or third examiner. If the third examiner does not find that the person is a mentally ill person or a mentally disordered person, the person must not be detained after the third examination.
The "mental health inquiry" referred to in par (d) is provided for by ss 34 and 35, which are the first two provisions in Pt 2, Div 3 headed "Continuing detention in mental health facilities". (A heading to a division forms part of the Act. [5] ) 34 Mental health inquiries to be held (1) A Magistrate is to hold an inquiry about an assessable person brought before the Magistrate under step 4 in section 27(d). Note. Section 27 sets out the events that result in a mental health inquiry. Notice of the inquiry is to be given to the person concerned and primary carers in accordance with section 76. (2) An authorised medical officer of the mental health facility in which an assessable person is detained must: (a) ensure that, as far as practicable, the person is brought before the Magistrate dressed in street clothes, and (b) make all necessary arrangements to ensure that all appropriate medical witnesses appear before the Magistrate and other relevant medical evidence concerning the person is placed before the Magistrate. (3) Schedule 2 has effect with respect to mental health inquiries. 35 Purpose and findings of mental health inquiries (1) A Magistrate holding a mental health inquiry is to determine whether or not, on the balance of probabilities, the assessable person is a mentally ill person. (2) For that purpose, the Magistrate is to do the following: (a) consider the reports and recommendations of the authorised medical officer and other medical practitioners who examined the person under section 27 after the person's detention, (b) consider any other information before the Magistrate, (c) inquire about the administration of any medication to the person and take account of its effect on the person's ability to communicate, (d) have due regard to any cultural factors relating to the person that may be relevant to the determination, (e) have due regard to any evidence given at the inquiry by an expert witness concerning the person's cultural background and its relevance to any question of mental illness. (3) A Magistrate who is not satisfied, on the balance of probabilities, that an assessable person is a mentally ill person must order that the person be discharged from the mental health facility. … (5) A Magistrate who is satisfied, on the balance of probabilities, that an assessable person is a mentally ill person may make any of the following orders: (a) an order that the person be discharged into the care of the person's primary carer, (b) a community treatment order, (c) an order that the person be detained in or admitted to and detained in a specified mental health facility for further observation or treatment, or both, as an involuntary patient, for a specified period of up to 3 months, if the Magistrate is of the opinion that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available or that for any other reason it is not appropriate to make any other order under this subsection.
Section 34 requires that an inquiry be held about an "assessable person"; that term is defined in s 17 as "a person detained in a declared mental health facility for whom a mental health inquiry is required to be held under this Part", referring to Pt 2.
The Mental Health Act and the Forensic Provisions Act are statutes which, relevantly for present purposes work together: s 33 of the latter Act provides for an order for assessment under the former. In the Mental Health Act, s 27 does not use the term "assess", in any form; it speaks of examination by a medical practitioner. But ss 17, 34 and 35 use a cognate form in the phrase "assessable person". The process of assessment referred to in s 33 should be understood to extend to the mental health inquiry which is to be held once two medical officers have concluded that the person is a mentally ill person and the person is detained in the mental health facility. This conclusion is supported by the reasoning of Macfarlan JA, which I gratefully adopt.
There is a further question raised by these provisions, namely whether a mental health inquiry is necessary, or even available, if the mentally ill person is no longer detained in a mental health facility. For the magistrate to hold an inquiry about "an assessable person", the person must, pursuant to s 17, be a person "detained in a declared mental health facility"; once the person is no longer so detained, he or she is no longer "an assessable person" and the obligation to bring him or her before a magistrate, so that the magistrate may conduct an inquiry, no longer arises.
That construction is consistent with the provisions of s 35, dealing with the "purpose and findings of mental health inquiries". Thus, if not satisfied that the assessable person is a mentally ill person, the magistrate "must order that the person be discharged from the mental health facility." [6] The assumption underlying this provision is that the person is, at the time the hearing is conducted, being detained in the mental health facility.
The conclusion is also consistent with the power of an authorised medical officer under s 30 of the Mental Health Act, at any time before a mental health inquiry is held, to classify the person as a voluntary patient, who will then no longer be involuntarily detained. Voluntary patients are dealt with in Ch 2 of the Mental Health Act and are not subject to the procedures under Ch 3.

(b) application of principles

This case proceeded at trial on a statement of agreed facts: that statement was not comprehensive as to the circumstances of the claimant's detention from time to time. However, it was agreed that the claimant was not detained at the Lismore mental health facility beyond the period during which the examinations were undertaken, each of which concluded that he was a mentally ill person. At 4.07pm on 5 March the claimant was returned to the Lismore police cells.
Pursuant to the orders made in the Local Court on 5 March, the proceedings were adjourned until the following day, namely 6 March. The order contained the notation that "[t]he accused person will be excused on the adjourned date if he/she has continued to be detained in hospital under the Mental Health Act". The order is formulaic, but it accords broadly with the transcript of the proceedings on 5 March. The prosecutor referred to the matter when it was first called on as involving an application for bail. The prosecutor also indicated that an application under s 33 (of, it may be assumed, the Forensic Provisions Act) was "not out of the question at this stage but no application is made right now." At the conclusion of the hearing on 5 March, the magistrate stated: "Certainly the facts and the photos cause enormous concern. There is an extensive history in here of - said to be mental illness, Richmond clinic visits. … At this stage pursuant to s 33 of the [Forensic Provisions Act] the defendant is to be taken by police to the Richmond mental health unit for an assessment and return the defendant to court if and when that assessment is completed. The matter is formally adjourned until tomorrow for mention just to ascertain what is going on."
On 6 March 2009 the claimant appeared before the Local Court, as did a lawyer who appears to have been a duty solicitor. She was aware of the certificates signed by the medical examiners, but had no instructions to appear for the claimant. The claimant himself spoke and applied for bail. At the conclusion of the hearing, the magistrate stated: "I have two Form 1s from the hospital. Pursuant to s 33 of the [Forensic Provisions Act] bail is refused. A full psychiatric report is required from the Prison Health Service. The matter is adjourned to 18 May for mention …."
Following that hearing, an authorised officer at the Court House, Lismore, issued a document entitled "Warrant on adjournment remanding a person charged". The warrant was addressed to all police officers in New South Wales and to the keeper of a prison, which was not identified. However, it is agreed that the claimant was taken in custody to Grafton Correctional Centre.
The only allegation of tortious conduct with respect to the events at Lismore mental health facility is the allegation against Dr Freeman of misfeasance in public office. For reasons which will be explained below, the finding of liability based on that cause of action cannot be maintained. With respect to the cause of action for unlawful imprisonment, the claimant must establish that his continued detention, anywhere other than in a mental health facility, was unlawful. In its defence to that claim the State submitted that there was no unqualified obligation on the Lismore mental health facility to continue to detain the claimant in circumstances where the officer in charge of the facility (whoever that was) decided that he should not remain there.

(i) inconsistent orders

In general terms, there was no doubt that the magistrate had power to remand an accused person in custody pending a hearing of charges laid against him. [7] There was also no doubt that a warrant could issue directing that the accused be held in a prison. [8] The claimant had to maintain that the warrant was, nevertheless, issued without jurisdiction and was therefore invalid.
There were two steps relied on in support of his primary argument. The first was that, until the order pursuant to s 33 of the Forensic Provisions Act, requiring that he be detained in a mental health facility, had been exhausted, there was no power to make a further inconsistent order with respect to his detention. The second step was that, the Local Court being an inferior court, an order made without jurisdiction was void and without effect in law and did not need to be set aside by a superior court.
As to the second step, the claimant relied on statements of principle by members of the High Court in Pelechowski v Registrar, Court of Appeal (NSW) [9] to the effect that, even when exercising judicial power, if an inferior court has no power or authority to make a particular kind of order, the order will be a nullity and without legal effect. [10] This principle applies whether or not the order is properly characterised as judicial or administrative; accordingly it is not necessary to characterise the order of the Local Court, as it might have been had the warrant been issued by a judge of the Supreme Court. [11] The second step in the claimant's argument may be accepted; the real question is whether the first step was correct.
The first step commences with a question of statutory construction. As there is no doubt that the Local Court had power to issue a warrant remanding an accused person in custody until the next date on which the matter was to be before the court, the Local Court also had power to grant the accused person bail, pursuant to the Bail Act. In its terms, s 33(1) expressly confers a power on the magistrate to make an order for detention in a mental health facility without derogating from any other order (which must mean power to order) "whether by way of adjournment, the granting of bail in accordance with the Bail Act 1978 or otherwise". This confirms that the powers shall co-exist; it does not provide a hierarchy of powers.
It was contended that that those general powers were curtailed, not by the conferral of power under s 33 to order that the person be detained in a mental health facility, but by the making of an order to that effect. Thus, assuming that the person is to be detained and not released on bail, or otherwise discharged from custody, he cannot be subject to orders for his detention in different places at the same time. Hence, it was submitted, the order to detain must constrain the general powers to deal with an accused person.
The statutory provisions provide no support for that submission. Assuming that, when the warrant was issued on 6 March 2009, there were inconsistent orders with respect to the detention of the claimant, one must be given effect and must prevail over the other.
The most obvious principle for reconciliation of inconsistent orders, where there is no reference to the earlier order in making the later order, is to treat the later order as impliedly revoking or superseding the earlier order. [12] On that approach, the warrant committing the claimant to prison issued on 6 March would prevail over the earlier order made on 5 March.
The claimant sought to resist this conclusion on the basis that he should not have been before the Court on 6 March and hence the Court had no jurisdiction to issue the warrant.
It is by no means clear what was meant by the proposition that he was not validly before the Court. The matter had been adjourned on the previous day until 6 March and the claimant had been excused from attending on that occasion, if he were still detained in the mental health facility. In fact he was not. Even if he had been detained in a mental health facility, he could properly have been brought before the court on an adjourned hearing and should have been, if not excused. In any event, the relevant provisions of the Criminal Procedure Act do not state or imply that the powers conferred under that Act to adjourn the proceedings and issue a warrant of commitment are not engaged if the person subject to the proceedings is not present.
It is not necessary, however, to reach any final conclusion about the proper resolution of inconsistent orders. That is because there was in truth no inconsistency when the warrant issued on 6 March. It may be assumed, in favour of the claimant, that the order under s 33(1) of the Forensic Provisions Act required that he be detained in the mental health facility, not merely for the conduct of examinations in accordance with s 27 of the Mental Health Act, but also for the purpose of completing any inquiry that was necessary, as a result of the findings under s 27(d). However, from the moment that he was no longer detained in the mental health facility, the inquiry was unavailable.
Even if the refusal of the authorised medical officer in charge of the mental health facility to detain the claimant in the facility involved a failure to comply with the order of the Local Court under s 33, it was nevertheless a fact that he was not in detention in a mental health facility on 6 March when he appeared before the Local Court. It might have been open to the magistrate to make a further order under s 33, possibly directing that the claimant be detained in a different mental health facility, with facilities and resources for securing a potentially violent patient, of a kind which may not have been available at Lismore. However, there was no obligation to make such an order and, in any event, it was not made and no complaint was raised about that fact.
The magistrate before whom the claimant appeared on 6 March had made the s 33 order on the previous day. The issue of the warrant was not made in ignorance of the earlier order, nor was there a failure to advert to the events of the previous day. It is clear that, on 6 March 2009, the magistrate considered that the s 33 order was spent, although in circumstances where the expectation underlying it may not have been fulfilled. That view was not wrong. The warrant issued on 6 March was therefore not invalid and the continuing custody at Grafton Correctional Centre was not unlawful.

(ii) a duty to admit - s 18

The claimant sought to escape this last conclusion by proposing that, being eligible for detention in a mental health facility, he was ineligible for detention anywhere else. That argument turned on the operation of s 18 of the Mental Health Act. The chapeau to s 18, set out at [12] above, uses the word "may". Generally speaking, the word "may", if used to confer a power, indicates that the power may be exercised or not, at the discretion of the repository of the power. [13]
The claimant submitted, correctly, that that is not always the case; context can indicate that a power so conferred is coupled with a duty to exercise the power in the event that the power is engaged. [14] However, whether that is so is a question of construction of the particular statute. No doubt a power to refund overpaid tax readily engages the inference that there is a duty to do so; but a power which involves the assessment of factors relevant to the public interest will not attract such an implied obligation. [15]
As appears from the objects and the general structure of the Mental Health Act, its primary purpose is to prohibit the involuntary detention or continued detention of persons who do not satisfy a carefully constrained set of conditions. [16] Thus, the statutory context does not support an implication that a person who comes within the circumstances identified in s 18(1) must be detained in a declared mental health facility. The circumstances identified in s 18(1) are diverse. Generally speaking, they envisage a person being brought to the mental health facility based on an opinion of a person with no necessary medical qualification, or if holding a medical qualification, at least without specialist psychiatric experience. Thus, s 18(1)(g) deals with a person the subject of a written request by a primary carer or a relative or a friend, pursuant to s 26. That section provides that the person "may be detained" upon such a request, but further provides that the authorised medical officer "must not" detain the person unless satisfied that it was not reasonably practicable to have the person detained on the basis of a mental health certificate. It is difficult to think that the power to detain under s 26(1) is converted to an obligation to detain pursuant to s 18(1)(g).
It is even more difficult to read "may" as meaning "must" in relation to some persons, but not others. Furthermore, the Mental Health Act does not itself assume that all persons who are detained in a mental health facility will necessarily be subject to a mental health inquiry. Thus, as noted above, there are circumstances in which an authorised medical officer may classify an assessable person as a voluntary patient "at any time before a mental health inquiry is held". [17]
Finally, there are practical considerations which make it unlikely that there is an obligation to detain any and every person who comes to the mental health facility pursuant to one of the seven sets of circumstances listed in s 18. For example, the facility will inevitably have limited resources and may not be able to cope with all prospective patients. The respondent submitted that, in those circumstances, the proper course was for the person to be transferred to another mental health facility, pursuant to s 80. Whether that statutory provision was intended to deal with such circumstances need not be pursued; the existence of a power of transfer does little to support an implication that every mental health facility is under an obligation to accept, pursuant to s 18, every prospective patient who comes to the facility and falls within one of the seven categories, even if only temporarily pending transfer.
There is no sound basis for reading "may" in s 18 as conferring a power coupled with a duty to detain.

(iii) other matters

In any event, the respondent was detained in the Lismore mental health facility for a sufficient period to allow two medical practitioners to examine him, pursuant to s 27. Thus the processes of "[a]dmission to and initial detention in mental health facilities", referred to in the heading to Pt 2 Div 2, were completed. It is true that the process for having a magistrate confirm that he was a mentally ill person, under Div 3, headed "[c]ontinuing detention in mental health facilities", was not completed, but that does not bear on the claimant's argument based on s 18. Because there was no obligation to detain him if it were thought that the particular facility was not an appropriate place for him, the making of a s 33 order and the determination of two medical practitioners that he was a mentally ill person did not mean that he could not lawfully be detained in any place other than a mental health facility.
The trial judge appears to have treated the regime provided by s 33 of the Forensic Provisions Act with ss 27-34 of the Mental Health Act as providing "a legislative scheme for diverting defendants out of the criminal process and into treatment for mental health problems". [18] That was a view identified as one available construction by the NSW Law Reform Commission in 2012. [19] It is not the only one. Whether the charges will continue to be dealt with in accordance with law will depend upon whether subsequent steps, as prescribed in the Forensic Provisions Act, are taken. [20]
Finally, reference should be made to the decision of the High Court in Hunter and New England Local Health District v McKenna. [21] That case involved an alleged breach of a general law duty of care owed to the respondents. A person suffering from paranoid schizophrenia was admitted to a hospital in New South Wales as an involuntary patient and was detained overnight. The following day the authorised medical officer released the person so that he could be driven by a friend to his home in Victoria, where he could obtain further treatment. On the trip, he stabbed and killed the friend. The friend's family sued the Health District alleging negligence on its part in placing the patient into the care of his friend. The Court held that the powers, duties and responsibilities conferred and imposed by the Mental Health Act were inconsistent with the existence of the common law duty of care relied on by the relatives. In the course of reaching that conclusion, the Court said that "determining that a person was a 'mentally ill person' did not entail that the person must be, or must continue to be, involuntarily admitted to and detained in a hospital." [22]
That finding may appear to support the conclusion reached above; however, it was made on a different basis and in a different context. The Court was there dealing with the prohibition in previous legislation, now contained in s 12(1) of the Mental Health Act, requiring that a person not be involuntarily admitted or detained unless an authorised medical officer is of the opinion that "no other care of a less restrictive kind is appropriate and reasonably available to the person." In the present case the appellant Health District did not contend that the respondent was being released into care of a less restrictive kind; nor did the claimant rely upon negligent breach of a common law duty of care.

(d) finding - detention on 6 March 2009

Because the claimant did not continue to be detained in the Lismore mental health facility after the examinations, no inquiry took place at that stage. Assuming that the order under s 33 extended to an assessment under s 34 of the Mental Health Act, the order was nevertheless spent once the claimant had been examined and found to be a mentally ill person, but had not been further detained. The practical result was that the claimant was returned to the general custodial system for persons charged with offences and refused bail. If the warrant of 6 March 2009 was validly issued, it could not be said that the claimant was then unlawfully imprisoned. There is no reason to find the order of remand to have been invalidly made or the warrant to have been invalidly issued.

(e) order for transfer - 10 March 2009

On 10 March 2009 the claimant was held at the Grafton Correctional Centre. On that date, a delegate of the Director-General of the Department of Health signed an order that the claimant be transferred to a mental health facility. The power to make such an order was conferred on the Director-General by s 55 of the Forensic Provisions Act.
Three days later he was transferred to the Metropolitan Remand and Reception Centre ("MRRC"). On 18 March he was transferred to a cell in the Mental Health Screening Unit at the MRRC, where he was detained until 14 May 2009. The cells in that unit were not part of a mental health facility, as defined by the Mental Health Act. When he was transferred, on 14 May 2009, into Long Bay Prison Hospital, effect was finally given to the s 55 order, Long Bay Prison Hospital being a mental health facility. He remained there until 10 June 2009 when he was again taken to Lismore, but was not admitted to the mental health facility. However, on 12 June he was admitted in accordance with an order under s 19 of the Mental Health Act. An inquiry was conducted the following day and a community treatment order was approved. He was then released from custody.
The respondent contended that there was a statutory obligation imposed on those responsible for his detention in prison to transfer him pursuant to the order under s 55 to a mental health facility. The continued detention of the respondent in a prison was said to become unlawful 14 days after the transfer order was made. The explanation for that submission turned on the operation of s 58 of the Forensic Provisions Act, which was in the following terms: 58 Review by Tribunal of persons awaiting transfer to mental health facility (1) The Tribunal must conduct a limited review of the case of a person who is subject to an order for transfer to a mental health facility under this Division but who is not transferred within the period prescribed by the regulations. (2) The Tribunal must carry out such a review each month until the person is transferred to a mental health facility or the Tribunal or the Director-General revokes the order. (3) On a limited review, the Tribunal may make an order as to the person's detention, care or treatment in a mental health facility or other place. (4) For the purposes of a limited review, a report as to the person's condition and the reason for the delay in transfer is to be provided to the Tribunal by the Director-General and the Commissioner of Corrective Services.
The period prescribed for the purposes of s 58(1) was 14 days. [23] On its face, s 58 is inconsistent with an implication which might otherwise be drawn from s 55, namely that failure to comply with an order under s 55 would render the continued imprisonment of the person concerned unlawful. Section 58 expressly envisages that the person may not be transferred pursuant to such an order and that certain things should happen if the transfer does not occur. Indeed, it envisages that a transfer may not occur for a significant period, not merely the initial 14 day period identified pursuant to subs (1); subs (2) requires monthly reviews of a person "until" he or she is transferred to a mental health facility. It followed that some further element was necessary to support the submission that imprisonment became unlawful at some point.
The further element relied upon by the respondent was the failure of the Director-General and the Commissioner to provide the report required by s 58(4), dealing with the respondent's condition and the reason for the delay in transferring him.
It may be that two reports are in effect required under s 58(4), as the reference to "the Director-General" in this Division has been taken to refer to the Director-General of Health. In any event, the respondent relied upon correspondence from the Tribunal (which had been properly notified of the order) seeking reports from each officer under s 58(4). It may properly be inferred that no reports were provided prior to the transfer of the respondent to Long Bay Prison Hospital on 14 May 2009. It may also be inferred that the Mental Health Review Tribunal did not conduct the limited review required by s 58(1), nor a subsequent monthly review, in accordance with s 58(2).
The failure to comply with the statutory requirements was unfortunate and to be deplored. Nevertheless, the practical consequences were probably limited. There was evidence before the Court suggesting that there were no beds available in Long Bay Prison Hospital when the respondent was first transferred to the prison at the MRRC. The medical records, including progress notes of his time in the Mental Health Screening Unit in the MRRC, were prepared by Justice Health, which is an arm of the Department of Health. It is difficult to imagine that they would not have been available to the Tribunal, had it decided to hold a hearing.
The circumstances surrounding the period during which the respondent was held in the Mental Health Screening Unit at the MRRC provide no basis for concluding that his imprisonment, for approximately one month, was unlawful. The mere existence of the s 55 order could not, as a matter of statutory interpretation, be deemed to have that effect. Nor is it possible to infer from the other circumstances a point in time at which the imprisonment became unlawful. In order to determine that a failure to comply with a statutory scheme has rendered a course of conduct unlawful, it is necessary to ask whether that conclusion can properly be drawn from the relevant provision of the legislation having regard to the scope, object and purpose of the statute. [24] There may have been a right to seek an order in the supervisory jurisdiction of the Supreme Court to require the statutory authorities to perform their duties, but the legislation does not permit a conclusion that the claimant's detention became unlawful at some point. Indeed, the conclusion follows from the difficulty in identifying any event or point in time where that consequence arose.

(f) conclusions - unlawful imprisonment

It follows from the reasons set out above that there was no basis for the finding that the respondent was unlawfully imprisoned at any time between 5 March 2009, following his arrest and charging with criminal offences, and his transfer to a mental health facility on 14 May 2009. Counsel did not contend that his imprisonment thereafter was unlawful.

Misfeasance in public office

Misfeasance in public office has been described as a "very peculiar tort" and as "the common law's only truly public tort". [25] The defendants in the present case were Dr Harry Freeman, a visiting medical officer with the entity then known as North Coast Area Health Service, now known as the Northern New South Wales Local Health District, and the Health District sued as the body vicariously liable for Dr Freeman's tortious conduct.
There are several elements to the tort, each of which Dr Freeman and the Health District contend were not established at trial. They based their defence primarily on the contention that Dr Freeman did not hold a public office. The complexities of that contention were not fully explored in argument, but they are entitled to succeed on the ground that the claimant did not establish the requisite mental element on the part of Dr Freeman.

(a) public office holder

The basis upon which it was alleged that Dr Freeman held a public office tended to shift in the course of argument, in a manner which reflected a similar uncertainty in the pleadings. The primary focus appears to have been upon his role under s 27 of the Mental Health Act. Step 1 under that provision requires that an examination be carried out by an "authorised medical officer" as soon as practicable after a person arrives at the facility or, if arriving as a voluntary patient, is first detained. It is only if that officer is satisfied that the person is a mentally ill person (or a mentally disordered person), that detention continues. That leads to step 2, at which the authorised medical officer must cause the person to be examined "by another medical practitioner", who must be a psychiatrist if the authorised medical officer were not. Step 3 operates where there is a difference of opinion amongst the practitioners who carry out the examinations at step 1 and step 2; step 3 was not engaged in this case and may be disregarded.
The pleading accepted that Dr Freeman fell within the description of another medical practitioner for the purposes of the second examination; it did not assert he was an "authorised medical officer". However, the claimant's submissions in this Court did rely on that characterisation. His role as "another medical practitioner" did not establish that he was an authorised medical officer. Furthermore, although it was pleaded in the alternative that he did not actually examine the claimant, that allegation was not pursued and there was no complaint as to his opinion that the claimant was a mentally ill person.
The term "authorised medical officer" is defined in s 4 of the Mental Health Act: 4 Definitions (1) In this Act: … authorised medical officer of a mental health facility means: (a) the medical superintendent of the mental health facility, or (b) a medical officer, nominated by the medical superintendent for the purposes of this Act, attached to the mental health facility concerned.
It was not suggested that Dr Freeman was the medical superintendent of the Lismore Adult Mental Health Unit, being the relevant mental health facility. Nor was there any direct evidence that he had been nominated by the medical superintendent for the purposes of the Mental Health Act.
There were two documents in evidence which were potentially relevant to Dr Freeman's role. First, there was a copy of the sessional service contract under which he served as a visiting medical officer at Lismore Base Hospital. There was no suggestion in that document that he was an authorised medical officer.
The second document, which was ultimately the only scintilla of evidence supporting the proposition that he was an authorised medical officer, was the certificate signed by him pursuant to s 27(b) with respect to the claimant. That certificate, on a form provided by the Mental Health Regulation 2007 (NSW), [26] commenced with the following statement: "This report is made as: NOT IMPLEMENTED: support for w:pict - without v:imagedata a certificate of the opinion of an authorised medical officer after examination of a person under s ection 27(a) of the Act (initial examination), (OR) NOT IMPLEMENTED: support for w:pict - without v:imagedata a dvice by a medical practitioner to aut horised medical officer under section 27(b) or (c) of the Act (further examination)." There is a direction to "tick whichever box is appropriate". Dr Freeman ticked the first box. However, it was common ground that it was not he, but Dr Butler, who undertook the initial examination. Accordingly, on any view, Dr Freeman ticked the wrong box. That being so, the fact of that tick provided no sufficient evidence upon which to conclude that he had been nominated as an authorised medical officer by the medical superintendent (whoever that was).
The claimant submitted that the inference which could properly be drawn from the tick on the certificate obtained weight from the fact that Dr Freeman could easily have clarified that he was not an authorised medical officer (if that were the case), as indeed could the medical superintendent. There was no suggestion that either was unavailable to give evidence.
This submission should not be accepted. As it was common ground that he ticked the wrong box, the inference that might have been drawn if he had ticked the correct box was simply not available. Further, the case was run on a statement of agreed facts, which included no reference to the status of Dr Freeman. If the claimant had set out to establish that he was not, as pleaded, the medical officer who examined the patient pursuant to s 27(b), but indeed an authorised medical officer, it would have been a simple matter to seek an admission to that effect or even administer an interrogatory. No such step was taken. The fact that it was not is not surprising given that the pleading did not allege that he was an authorised medical officer.
On one view, none of this matters because the two interrelated steps which were said to constitute misfeasance were the failure to continue to detain the claimant at the mental health facility and the failure to take him before a magistrate for there to be a mental health inquiry. The latter step was required to be taken, pursuant to s 27(d), by "[a]n authorised medical officer". The claimant submitted that that could be any authorised medical officer so that, even if Dr Freeman was not the person who undertook the initial examination, he might nevertheless have had the authority (and duty) to bring the claimant before a magistrate under step 4.
That is not the preferable reading of s 27. The use of the indefinite article "an", before authorised medical officer in step 4 should not be understood as imposing an obligation on the class of all authorised medical officers. It is clearly intended to impose an obligation on the authorised medical officer who conducted the first examination, because it was that person who was required to be notified by the second examiner as to the opinion the second examiner had formed, pursuant to s 27(b). The step to be taken under s 27(d) was required to be taken "as soon as practicable after the authorised medical officer is notified of the relevant finding of the second… examiner." Accordingly, it was the initial examining officer upon whom the duty (if any) was imposed under s 27(d). That was not Dr Freeman.
With respect to the decision not to continue to detain the claimant after the second examination, this court was taken to no evidence indicating who was the decision-maker. The evidence relied upon by the claimant was limited to the following conclusion set out at the foot of Dr Freeman's reasons for certifying that the claimant was a mentally ill person. "This dangerous man, with paranoid schizophrenia, which is treatment unresponsive, needs containment and sedation because of his risk to the community. Any treatment he may benefit from can be given to him in corrective services. He has assaulted mental health staff in the past and he cannot be safely cared for by the mental health system with CTOs etc."
The abbreviation "CTOs" was a reference to community treatment orders, which had been made in the past. However Dr Butler made a similar comment in her certificate: "Darren suffers from a chronic mental illness which is unresponsive to community and hospital treatment. Darren would benefit from treatment in the Forensic System - Corrective Services."
It will be necessary to consider these statements below in relation to the mental element for the tort. It is sufficient for present purposes to note that both medical practitioners appeared to be of the same view as to where the claimant should be treated. Their views would have been consistent with a decision not to continue to detain him at the Lismore mental health facility. However, whether either of them made that decision, or it was made by a medical superintendent who was not Dr Butler, remains unknown. It was simply not established on the balance of probabilities that Dr Freeman made the relevant decision.
It is true that, in examining the claimant and forming the opinion that he was a mentally ill person, Dr Freeman was undertaking a statutory function. However, it does not follow that he was the holder of a public office. The trial judge appears to have accepted either that the exercise of a statutory function was sufficient to constitute Dr Freeman a public officer, or that that action, combined with his public duty to ensure that the legislation was complied with, led to that conclusion. (It may have been intended that the duty followed from the exercise of the statutory function, rather than adding an additional basis for the conclusion.)
It is preferable not to decide the case on this basis. The argument focused on whether Dr Freeman was shown to be an "authorised medical officer", on the assumption that a person would only be the holder of a "public office" for the purposes of the tort, if he or she were designated in some way as an "officer". That is a large question which was not addressed in argument. For example, a similar issue arose, albeit in quite a different context, in the Offshore Processing Case. [27] That case involved a review of the procedures by which asylum seekers were processed on Christmas Island, where decisions under the Migration Act 1958 (Cth) were made upon a recommendation by a reviewer, who was not employed by the Commonwealth but by an independent contractor. The High Court assumed, without deciding, "that neither the contractor, nor any of the specified persons engaged by the contractor to perform the services it had agreed to provide, is an officer of the Commonwealth." The significance of the assumption was that relief under s 75(v) of the Constitution, which confers original jurisdiction on the High Court with respect to writs sought "against an officer of the Commonwealth", was not available. The Court continued: [28] "Accordingly, it is appropriate to leave, for another day, the question whether a party identified as 'an independent contractor' nevertheless may fall within the expression 'an officer of the Commonwealth' in s 75(v) in circumstances where some aspect of the exercise of statutory or executive authority of the Commonwealth has been 'contracted out'."
Of course, a determination as to the scope of the constitutional power conferring jurisdiction on the High Court to restrain officers of the Commonwealth from exceeding federal power may not define the limits of the common law tort of misfeasance in public office. Nevertheless, in an age when many statutory functions (including basic custodial services) are "contracted out", the scope of the tort (as with the scope of judicial review) remains uncertain. Indeed, even the proper basis for determining the scope is open to doubt. Each raises a large question, which should not be embarked upon absent full argument in a case in which its resolution is necessary.
With respect to the related criminal offence of misconduct in public office, a similar reluctance to identify the characteristics of a public office has been expressed. [29] Stephen's Digest of the Criminal Law, referring to criminal offences involving abuse of public authority, defined a public officer as "a person invested with authority to execute any public duty, and legally bound to do so." [30] Whether similar language applies to the modern understanding of the tort of misfeasance in public office has not been determined and, in any event, the limits of the definition would remain imprecise.
There is also doubt as to the conduct covered by the tort and the mental element involved. In Northern Territory v Mengel, [31] the joint reasons of Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ stated: "The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. … It may be that analogy with the torts which impose liability on private individuals for the intentional infliction of harm would dictate the conclusion that, provided there is damage, liability for misfeasance in public office should rest on intentional infliction of harm, in the sense that that is the actuating motive, or on an act which the public officer knows is beyond power and which is calculated in the ordinary course to cause harm."
The joint reasons did not reach a firm conclusion as to those elements; it was sufficient for the purposes of the case for the public officer to know that the act was beyond power and involved a foreseeable risk of harm. The element of actual knowledge was qualified as potentially extending to the officer who "recklessly disregards the means of ascertaining the extent of his or her power." The claim was dismissed because even those minimal elements were not satisfied. As in Mengel, this case does not call for a definitive determination of the precise scope of the tort. That is because the cause of action has not been made out for a number of reasons, any one of which would suffice.
The first reason why the claim failed was because Dr Freeman's statutory function was limited to expressing an opinion as to whether the claimant was a mentally ill person or a mentally disordered person (if able to form such an opinion) and notifying the authorised medical officer in the form prescribed. There was no dispute that Dr Freeman took those steps; nor was there any challenge to the validity of his conduct in that regard. It follows that he exercised his sole statutory function validly and lawfully.
Secondly, the gravamen of the claimant's complaint was that Dr Freeman decided that he should no longer be detained in the mental health facility. However, there is nothing in s 27(b) which indicates any such function being imposed on the second examiner. For reasons already explained, Dr Freeman was not shown to be the person who made that decision.
Thirdly, even had Dr Freeman been the authorised medical officer who determined that the claimant should not be further detained, for reasons already explained, that decision was not unlawful within the scheme provided by the legislation.
Having determined that the conduct complained of was neither carried out by Dr Freeman, nor unlawful, it may seem futile to consider the necessary mental elements. However, because findings were made adverse to Dr Freeman's professional integrity, those matters should be briefly addressed.
The claimant called a solicitor, Ms Dylan-Smith, who had extensive experience in mental health advocacy work with Legal Aid NSW. Ms Dylan-Smith gave evidence that a person who had been referred to the mental health facility (then known as the Richmond Clinic) had not been admitted and had later been assaulted in gaol. She said that following that event a meeting was held attended by two lawyers and members of the area health service and Dr Freeman. She gave the following evidence: [32] "Q. Ms Dylan-Smith, do you recall during the context of that meeting anything that directly passed between Dr Freeman and anyone else concerning the issue of whether or not mentally ill persons referred to the ward should be admitted? A. There was a comment I think by Dr Freeman about the fact that Long Bay had a hospital and why some of these clients - it was appropriate they went to gaol and that Long Bay had a hospital and that they could be treated there …."
There was further evidence, much of it too imprecise as to content and timing to be of much assistance to the judge, which demonstrated a difference of opinion between Legal Aid solicitors and Dr Freeman as to where persons with a violent propensity who had committed serious offences should be detained. (It should be noted that objection was taken at trial to this evidence, but it was eventually admitted and its admissibility was not challenged on appeal.)
A finding that a professional officer had in a particular case exercised the functions of office, either with actual knowledge that he was acting unlawfully, or at least in reckless disregard of the lawfulness of such conduct, requires a comfortable satisfaction that such a state of mind has been affirmatively proved, in accordance with the standard of proof laid down in Briginshaw v Briginshaw. [33] That factor was not addressed in the judgment. Nor was there any discussion as to the possible difference between actual knowledge and reckless disregard as to the means of ascertaining the scope of the power. The evidence given by Ms Dylan-Smith was incapable of satisfying that standard, on either test.
It was also necessary that there be a finding that Dr Freeman had as his actuating motive, conduct which was calculated in the ordinary course to cause harm. (If that were not to be the test applied, there should have been consideration of the authority which supported a lesser test.) The only inference to be drawn from the hearsay evidence was that Dr Freeman held the view that such people might constitute a risk to other patients in the mental health facility and were better cared for in a mental health facility within a prison. There was no evidence that Dr Freeman knew or believed or even should have known or believed that the standard of care provided at Long Bay Prison Hospital (which was the accepted alternative) was so inferior as to allow the inference that he understood harm would or might be caused by adopting a practice which led to the person being incarcerated in Long Bay Prison Hospital. Again, without any finding as to the legal test, the judge stated: [34] "The first question, is was Dr Freeman in those circumstances entitled to not admit the plaintiff to the unit of which he was apparently in charge at that time, controlled by the third named defendant and being a unit which was entitled to administer involuntary medication to mentally ill persons? Dr Freeman chose not to do that but to refer the plaintiff back to the system at law knowing that wherever the plaintiff was sent it would be highly unlikely that any of the hospitals or facilities would have been gazetted and would have been entitled to [involuntarily] administer medication to the mentally ill person."
Leaving to one side the question as to whether there was any evidence to support the conclusion that Dr Freeman was "apparently in charge" of the Lismore mental health facility, there was no admissible evidence which supported the view that there was no hospital or facility within the prison system which had been gazetted for the purposes of the Mental Health Act. Nor was there any evidence that Dr Freeman knew that to be the case (even had it been the case). In fact, Long Bay Prison Hospital was such a facility.
Finally, the proposition that a person who takes steps which may expose another to a risk of a less favourable outcome than an alternative course, and therefore intends to cause that person harm, is untenable. Thus, a police officer who refuses to grant an accused person bail, knowing that they will be detained as a result, does not relevantly intend the harm which may result from detention. In the present case, the trial judge noted that there was "no suggestion that there was not a single cell contained within the Lismore facility", [35] the inference being that had there been such evidence, a decision not to continue to detain the claimant might have been lawful. However, the existence of a discretionary power which could, in some circumstances, be lawfully exercised prevented a conclusion, without more information, that the course in fact taken was intended to cause harm. Absent that conclusion, foreseeable harm was not intended in the relevant sense.
For all these reasons, the finding of misfeasance in public office against Dr Freeman (and hence against the Health District) was unavailable. The judgment based on that cause of action must be set aside.

Conclusions

The Court should make the following orders: 1. Grant each of the appellants leave to appeal from the judgment of the District Court delivered on 19 June 2015. 2. Direct that, within seven days, the appellants file in the Registry a notice of appeal in the form of the draft notice of appeal contained in the white folder and otherwise dispense with the rules with respect to service. 3. Allow the appeal and set aside the orders made by the District Court on 19 June 2015. 4. In place thereof, order that: 1. the further amended statement of claim filed by Darren Maxwell Roberson on 21 April 2015 be dismissed; 2. the plaintiff pay the costs of the defendants. 1. Dismiss the cross-appeal. 2. Order that the respondent pay the appellants' costs of the appeal and cross-appeal. 3. The respondent have a certificate under the Suitors' Fund Act 1951 (NSW).
MACFARLAN JA: I agree with the orders that Basten JA proposes and with his Honour's reasons. I add the following observations concerning the meaning of "assessment" in s 33 of the Forensics Provisions Act (see [17] above).
I agree with his Honour that the "assessment" referred to in that section is to be understood as including not only the examination by the authorised medical officer and another medical practitioner, for which s 27 of the Mental Health Act provides, but also the mental health inquiry by a Magistrate for which s 34 provides. On this extended meaning of "assessment", the s 33 order operates as an order that the defendant be detained, not only during the examinations at the mental health facility, but also for what may be a lengthy period during which the mental health inquiry is conducted. This result is surprising because, as contemplated by the terms of s 33(1), when the Magistrate makes the order under that section he or she is likely to have had only a limited opportunity to observe the defendant and not to have the assistance of any medical opinions.
Nevertheless, it seems to me to be the only construction available as the Mental Health Act does not confer power on those in charge of the mental health facility to which a defendant has been brought under a s 33 order to detain the defendant after completion of the examinations for which s 27 provides. Rather, that detention will continue by reason of the Magistrate's s 33 order. Section 18 of the Mental Health Act authorises the detention of a person in a mental health facility in various circumstances, for example "after being brought to the facility by an ambulance officer". The power in relation to a person subject to a s 33 order is, however, more limited. In that case, the section provides that a person "may be detained … on the order of a Magistrate or bail officer (see s 24)". Section 24 provides: "A person may be taken to and detained in a declared mental health facility in accordance with an order made under s 33 of the Mental Health (Forensic Provisions) Act 1990."
Detention is thus to occur in accordance with the Magistrate's order and no power is conferred on those in charge of the facility to detain the person after the order is spent. As the Mental Health Act contemplates that a mental health inquiry will only be held in relation to a person who is detained in a mental health facility, it is difficult to resist the conclusion that the Magistrate's s 33 order constitutes the authority for the continued detention at that time, no relevant independent power of detention during the inquiry having been conferred upon those in charge of the facility. Thus the s 33 order is not spent (that is, the "assessment" will not have been completed) until the inquiry has taken place.

Endnotes

NSW Government Gazette No 45, Special Supplement, 24 April 2008, p 2957.
Prior to 1 March 2009 it was known as the Mental Health (Criminal Procedure) Act 1990 (NSW).
Except where otherwise indicated, all relevant provisions of the Mental Health Act are located in Ch 3.
Mental Health Act, s 4(1), mental health facility.
Interpretation Act 1987 (NSW), s 35.
Mental Health Act, s 35(3).
Criminal Procedure Act, s 241.
Criminal Procedure Act, s 242.
(1999) 198 CLR 435; [1999] HCA 19.
Pelechowski at [27] (Gaudron, Gummow and Callinan JJ) citing McHugh JA in Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357; [55] and [71] (McHugh J).
Cf Love v Attorney-General (NSW) (1990) 169 CLR 307 at 321.
Tonab Investments Pty Ltd v Optima Developments Pty Ltd (2015) 90 NSWLR 268; [2015] NSWCA 287 at [85] (Leeming JA, Meagher JA agreeing).
Interpretation Act, s 9(1).
Julius v Bishop of Oxford (1880) 5 App Cas 214; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134-135 (Windeyer J); Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 81 (Mason CJ) and 88 (Brennan J, Toohey and McHugh JJ agreeing).
Samad v District Court of New South Wales (2002) 209 CLR 140; [2002] HCA 24 at [33]-[36].
Mental Health Act, ss 12, 13, 14 and 16.
Mental Health Act, s 30.
Judgment at 55.
New South Wales Law Reform Commission, People with cognitive and mental health impairments in the criminal justice system - Diversion; Report 135 (June 2012) www.lawlink.nsw.gov.au/lrc at [10.21] and [10.25].
Forensic Provisions Act, s 33(2).
(2014) 253 CLR 270; [2014] HCA 44.
McKenna at [28].
Mental Health (Forensic Provisions) Regulation 2009 (NSW), cl 4(1).
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [93].
Mark Aronson, "Misfeasance in Public Office: A Very Peculiar Tort" (2011) 35 Melb U L Rev 1.
Mental Health Regulation, cl 4(a) and (b), Sch 1 Forms.
Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319; [2010] HCA 41.
Plaintiff M61 at [51].
R v Quach [2010] VSCA 106; 201 A Crim R 522 at [26] (Redlich JA) referring to Attorney-General's Reference (No 3 of 2003) [2005] QB 73 at [54].
J F Stephen, Digest of the Criminal Law (3rd ed, 1883) at p 82.
(1995) 185 CLR 307 at 347.
Tcpt, 21/10/14, pp 16-17.
(1938) 60 CLR 336.
Judgment at 54-55.
Judgment at 55.

Amendments 29 June 2016 - Amending heading before holdings 6 and 7 in headnote. [58] typographical error. 29 June 2016 - Correcting case citations Northern Territory v Mengel and Plaintiff M61/2010E on coversheet and fn 27 and fn 31 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: 29 June 2016

Suitors' Fund Act 1951(NSW)

Mental Health (Forensic Provisions) Act 1990(NSW)

Mental Health (Forensic Provisions) Regulation 2009(NSW)

Mental Health Regulation 2007(NSW)

Mental Health (Criminal Procedure) Act 1990(NSW)

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