Vorhauer v NSW Minister for Health & Anor [2005] NSWSC 797

Vorhauer v NSW Minister for Health & Anor [2005] NSWSC 797

The plaintiff was subject to the Felons (Civil Proceedings) Act 1981 and required leave to commence the proceedings; her argument that section 107 Justices Act 1902 made that Act inapplicable was unarguable. Most paragraphs of the summons disclosed no arguable basis, raised no live issue, or were an abuse of process and were therefore summarily dismissed under Part 13 rule 5. However, paragraph 2, challenging the Mental Health Review Tribunal decision for non-compliance with section 97 of the Mental Health Act 1990, was not wholly suitable for summary dismissal because it was not quite clear that section 97 permitted a merely notional change in status where the plaintiff was already...

Jurisdiction
Australia
Judgment Date
05 September 2005
Procedural Posture
Equity Proceedings by Summons Concerning Mental Health Review Tribunal Decisions and Detention/treatment Issues / Defendants' Notice of Motion Seeking Strike Out or Summary Dismissal, and Consideration of Leave Under the Felons (civil Proceedings) Act 1981
Outcome
All paragraphs of the summons except paragraph 2 were summarily dismissed. Leave was granted nunc pro tunc to commence and continue the claim in paragraph 2 only, subject to restrictions, and no order was made for costs.
Legal Topics
['summary Dismissal Under Part 13 Rule 5 Supreme Court Rules 1970' 'leave to Sue Under Felons (civil Proceedings) Act 1981' 'transfer of Prisoner to Hospital Under Section 97 Mental Health Act 1990' 'jurisdiction of Mental Health Review Tribunal' 'delegation by Chief Health Officer' 'assault Claim Arising From Involuntary Medication']
['practice and Procedure' 'mental Health Law' 'administrative Law' 'civil Proceedings by Prisoners' 'torts'] ['summary Dismissal Under Part 13 Rule 5 Supreme Court Rules 1970' 'leave to Sue Under Felons (civil Proceedings) Act 1981' 'transfer of Prisoner to Hospital Under Section 97 Mental Health Act 1990' 'jurisdiction of Mental Health Review Tribunal' 'delegation by Chief Health Officer' 'assault Claim Arising From Involuntary Medication']

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Procedural Posture

Equity Proceedings by Summons Concerning Mental Health Review Tribunal Decisions and Detention/treatment Issues / Defendants' Notice of Motion Seeking Strike Out or Summary Dismissal, and Consideration of Leave Under the Felons (civil Proceedings) Act 1981

Legal Issues

  1. 1 ['Whether the plaintiff required leave under the Felons (Civil Proceedings) Act 1981 to institute the proceedings and whether leave could be granted nunc pro tunc.' 'Whether the summons, or particular paragraphs of it, should be summarily dismissed under Part 13 rule 5 of the Supreme Court Rules 1970.' 'Whether the principle in The University of Wollongong v Metwally (1984) 158 CLR 447 invalidated decisions of the Mental Health Review Tribunal under the Mental Health Act 1990.' 'Whether there was an arguable challenge to the Mental Health Review Tribunal decision based on non-compliance with section 97 of the Mental Health Act 1990.' "Whether the plaintiff's claims for production of documents, access to records, statutory rights, return to Mulawa, cessation of medication, jury examination, and damages disclosed a live or arguable issue."]

Ratio Decidendi

The plaintiff was subject to the Felons (Civil Proceedings) Act 1981 and required leave to commence the proceedings; her argument that section 107 Justices Act 1902 made that Act inapplicable was unarguable. Most paragraphs of the summons disclosed no arguable basis, raised no live issue, or were an abuse of process and were therefore summarily dismissed under Part 13 rule 5. However, paragraph 2, challenging the Mental Health Review Tribunal decision for non-compliance with section 97 of the Mental Health Act 1990, was not wholly suitable for summary dismissal because it was not quite clear that section 97 permitted a merely notional change in status where the plaintiff was already...

Court Disposition

All paragraphs of the summons except paragraph 2 were summarily dismissed. Leave was granted nunc pro tunc to commence and continue the claim in paragraph 2 only, subject to restrictions, and no order was made for costs.

Orders

  • ['I decline to grant the plaintiff an adjournment of the hearing of the Notice of Motion.' 'All paragraphs of the Summons except paragraph 2 are summarily dismissed.' 'Grant leave to the plaintiff nunc pro tunc to commence and continue the claim made in paragraph 2 of the Summons, subject to the plaintiff not...