Z v Mental Health Review Tribunal [2015] NSWSC 1943

Z v Mental Health Review Tribunal [2015] NSWSC 1943

The appeal was dismissed because the community treatment order had expired and an appeal under s 163 is a de novo and prospective redetermination of whether the affected person should be subject to a community treatment order at the date of the Court's decision. The Court could not set aside or quash the Tribunal's past decision, or find that it had not been properly made, and any different decision would operate only prospectively. The pending further CTO application and r 9 of the Mental Health Regulation 2013 (NSW) did not give the expired appeal practical utility.

Jurisdiction
Australia
Judgment Date
17 December 2015
Procedural Posture
Equity Protective List; Appeal Under S 163 of the Mental Health Act 2007 (nsw) Against the Making of a Community Treatment Order / Remitter From the Court of Appeal After It Allowed an Appeal From Dismissal of the S 163 Appeal; the Community Treatment Order Had Expired Before Redetermination
Outcome
Amended Summons dismissed. No order as to costs.
Legal Topics
['community Treatment Order' 'appeal De Novo' 'mental Health Tribunal' 'utility of Appeal' 'expired Order' 'remitter']
['mental Health Law' 'administrative Law' 'protective Jurisdiction'] ['community Treatment Order' 'appeal De Novo' 'mental Health Tribunal' 'utility of Appeal' 'expired Order' 'remitter']

Case Brief

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Procedural Posture

Equity Protective List; Appeal Under S 163 of the Mental Health Act 2007 (nsw) Against the Making of a Community Treatment Order / Remitter From the Court of Appeal After It Allowed an Appeal From Dismissal of the S 163 Appeal; the Community Treatment Order Had Expired Before Redetermination

Legal Issues

  1. 1 ["Whether there was any utility in hearing Z's appeal after the community treatment order expired" "Whether an appeal under s 163 of the Mental Health Act 2007 (NSW) permits the Court to set aside or quash the Tribunal's past decision or determine that the order was not properly made" 'Whether the possible effect of s 53(3A) of the Mental Health Act 2007 (NSW) on a pending application for a further community treatment order gave the appeal utility' 'Whether r 9 of the Mental Health Regulation 2013 (NSW) conferred any relevant power on the Court']

Ratio Decidendi

The appeal was dismissed because the community treatment order had expired and an appeal under s 163 is a de novo and prospective redetermination of whether the affected person should be subject to a community treatment order at the date of the Court's decision. The Court could not set aside or quash the Tribunal's past decision, or find that it had not been properly made, and any different decision would operate only prospectively. The pending further CTO application and r 9 of the Mental Health Regulation 2013 (NSW) did not give the expired appeal practical utility.

Court Disposition

Amended Summons dismissed. No order as to costs.

Orders

  • ['Amended Summons dismissed.' 'No order as to costs.']