CARE CO-ORDINATOR v R [2020] NZCA 574

CARE CO-ORDINATOR v R [2020] NZCA 574 [30 November 2020]NOTE: PURSUANT TO S 130 OF THE INTELLECTUAL DISABILITY(COMPULSORY CARE AND REHABILITATION) ACT 2003, ANY REPORTOF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OFTHE FAMILY COURT ACT 1980.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA589/2020[2020] NZCA 574BETWEEN CARE CO-ORDINATORAppellantAND RRespondentHearing: 5 November 2020Court: French, Brown and Collins JJCounsel: D R La Hood and N Azam for AppellantA J Bailey for Respondent / Counsel to assist the CourtJudgment: 30 November 2020 at 9.00 amJUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is dismissed.C There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] R is a care recipient under the Intellectual Disability (Compulsory Care andRehabilitation) Act 2003 (the Intellectual Disability Act). A care co-ordinator,responsible for R, has applied for leave to appeal two questions of law arising from ajudgment delivered by the High Court on 30 September 2020.1 The effect ofthe High Court judgment was that R was no longer a care recipient and must bereleased from the secure facility where he has been residing.[2] We shall recast the questions posed for us so as to ensure we focus uponthe actual issues that arise in this case. For introductory purposes we summarisethe questions in the following way:(a) Can the expiration of a compulsory care order be deferred further oncea deferral order has expired notwithstanding that an application toextend the compulsory care order was pending at the date of expiry?(b) Could a notice of a judicial conference issued by the Family Courtduring the period of deferral be construed as a further extension ofthe period of deferral?Background[3] R, who is 20 years old, was diagnosed in 2010 with mild intellectual disability,attention deficit hyperactivity disorder (ADHD) and mild autism spectrum disorder(ASD). He displayed significant impulsiveness and "behaviour disinhibition".[4] In November 2016, R inserted his penis into the anus of his two-year-old niece,whose parents had moved into R's family home in order to care for R's terminally ill1 [Care Co-ordinator] v R [2020] NZHC 2561 [High Court judgment].mother. R was charged with unlawful sexual connection with a person under 12 yearsof age.2[5] On 1 December 2016, the Youth Court determined that on the balance ofprobabilities R performed the physical act that formed the basis of the charge againsthim.3 The Youth Court determined on 20 December 2016 that R was unfit to standtrial.4[6] The Youth Court ordered inquiries be made under s 23 of theCriminal Procedure (Mentally Impaired Persons) Act 2003 (the Mentally ImpairedPersons Act) and the Intellectual Disability Act to determine whether or not ordersshould be made requiring R to be detained either:(a) as a special care recipient under the Intellectual Disability Act, pursuantto s 24(2)(b) of the Mentally Impaired Persons Act; or(b) as a care recipient under the Intellectual Disability Act, pursuant tos 25(1)(b) of the Mentally Impaired Persons Act.[7] Upon receiving and considering the reports sought, the Youth Court madeorders on 7 February 2017 requiring R to be cared for as a care recipient unders 25(1)(b) for three years in a secure facility.5 Such an order "is to be regarded as acompulsory care order for the purposes of the [Intellectual Disability Act]".6[8] R was detained in a secure facility. On 30 December 2019, R absconded andwent into a service station where he used a razor blade as a weapon to obtain somecigarettes. No charges were brought against R because of his intellectual disability.[9] Ms Medlicott, a clinical psychologist, conducted a clinical review of Rpursuant to ss 77 and 78 of the Intellectual Disability Act. In her report, dated12 January 2020, Ms Medlicott referred to nine recent incidents in which R's2 Crimes Act 1961, s 128(1)(b) (maximum penalty of 20 years' imprisonment).3 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 9 (since repealed).4 Section 14 (since repealed).5 R v OR [2017] NZYC 109.6 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 26(2).behaviour had raised issues of concern, including the event we have described at [8].Ms Medlicott considered R's behaviour was consistent with him being anxious abouthis compulsory care order coming to an end and that R may have been acting in ananti-social manner to force authorities to extend his compulsory care order. In herreport, Ms Medlicott said: it was clear that [R] was feeling insecure about not having the support andstructure that the current Order gives him, that he does not know how he wouldlook after himself if the Order were to end, and that he would prefer that itcontinues so he can learn how to reduce his likelihood of reoffending and otherconcerning behaviour.[10] Ms Medlicott reviewed previous assessments of R's risk of reoffending andconcluded he continued to pose a risk of sexual reoffending that was well abovethe average range. Ms Medlicott recommended that R's compulsory care order beextended for a two-year period for "[his] own safety and the safety of the community".[11] On 15 January 2020, R's care co-ordinator applied to the Family Court for atwo-year extension to R's compulsory care order and for his care to continue at asecure facility (the extension application). The extension application was applied forunder s 85(1) of the Intellectual Disability Act, which states:85 Extension of compulsory care order(1) The Family Court may, on the application of the [care] co-ordinator,extend the term of a care recipient's compulsory care order.[12] At the same time, the care co-ordinator applied for a deferral of the expirationof R's compulsory care order (the deferral application). The deferral application wasmade pursuant to s 87 of the Intellectual Disability Act, which states:87 Court may defer expiry of order if application for extensionpending(1) If a care recipient's order is due to expire at any time when anapplication, under section 85, to extend the term of that order ispending before the Family Court, the court may defer the expiry ofthe order by specifying a date as the last day of a period that, inthe opinion of the court, is sufficient for the application to be heardand determined.(2) The co-ordinator may apply without notice for an order, undersubsection (1), to defer the expiry of a compulsory care order.(3) As soon as the court makes an order under subsection (1),the co-ordinator must serve a copy of the order on every person whois entitled to be served with a copy of the application under section 85.(4) Every person served, or entitled to be served, under subsection (3)with a copy of an order under subsection (1) may apply to the courtfor the cancellation or variation of the order.[13] R advised that he was opposed to the two-year extension. On 30 January 2020,an application was made to the Family Court for Mr Bailey to be appointed asthe lawyer for R.[14] On 7 February 2020, the Family Court:(a) granted the deferral application, making a deferral order for threemonths (ie until 7 May 2020) to enable the extension application to beheard; and(b) appointed Mr Bailey to be the lawyer for R.[15] On 16 April 2020, Mr Bailey filed a memorandum in the Family Courtcontending R's compulsory care order expired at midnight on 6 February 2020 andthat the Family Court lacked jurisdiction to make the deferral order on 7 February2020. Counsel then acting for the care co-ordinator responded on 20 April 2020,submitting the compulsory care order did not expire until midnight on 7 February2020.[16] On 20 April 2020, a Family Court case manager issued a "notice of judicialconference" to be conducted on 12 May 2020. The notice explained that:At this conference, the Family Court Judge will try to identify the currentissues, identify whether there are any matters that are agreed, and make ordersor directions as to how the matter is to be progressed.[17] The judicial conference was conducted on 12 May 2020, following whichJudge Lindsay issued a minute requiring further submissions.7 Mr Bailey'ssubmissions, dated 19 May 2020, continued to challenge the jurisdiction of7 Canterbury District Health Board v [R] FC Christchurch FAM-2017-009-1411, 12 May 2020(Minute of Judge Lindsay).the Family Court to make the deferral order on 7 February 2020 and raised afurther jurisdictional issue arising from the failure of the Family Court to further deferthe expiration of the compulsory care order on or before the deferral order expired on7 May 2020.[18] On 20 May 2020, counsel for the care co-ordinator filed a memorandumaddressing the new jurisdictional issue raised by Mr Bailey. She submitted:(a) Between 25 March 2020 and 27 April 2020, New Zealand was underlevel four restrictions due to the COVID-19 pandemic.(b) A protocol issued by the Chief District Court Judge on 1 April 2020identified priority proceedings. Applications to extend compulsorycare orders were not listed as priority cases.(c) The notice of judicial conference issued by the Family Court on20 April 2020 "in substance and effect deferred the extension untilthere was sufficient time for the [extension] application to be heard anddetermined".[19] On 3 June 2020, Judge Lindsay issued a judgment (the Family Court judgment)in which she held:8(a) There was jurisdiction for the Family Court to defer the expiration ofthe compulsory care order on 7 February 2020 as the order did notexpire until midnight that day.(b) The deferral order expired on 7 May 2020. In the absence of anyfurther deferral order having been made on or before 7 May 2020,the compulsory care order came to an end on 7 May 2020.(c) The judgment was to lie in court for 28 days to enable appropriatearrangements to be made and/or an appeal to be pursued.8 [Care Co-ordinator] v [R] [2020] NZFC 3820.[20] On 8 June 2020, the care co-ordinator filed an appeal from the Family Courtjudgment. The care co-ordinator also sought a stay of the Family Court decisionpending the determination of the appeal. The Family Court responded on 8 June 2020with an order that the compulsory care order remain in place pending the hearing ofthe appeal. This led to Mr Bailey filing an application for a writ of habeas corpus onbehalf of R. That application was dismissed by Dunningham J on 14 August 2020.9An appeal in the habeas corpus proceeding was dismissed by this Court on 27 August2020,10 on the ground habeas corpus was not the appropriate procedure fordetermining the jurisdictional issues raised by R's case.11[21] Mr Bailey filed a cross-appeal to the Family Court judgment. The cross-appealsought to challenge the finding that the Family Court had jurisdiction to deferthe expiration of the compulsory care order on 7 February 2020.[22] The appeal and cross-appeal were dismissed by Doogue J on 30 September2020.12 The judgment was stayed pending a further appeal.13 We will explainthe details of the High Court judgment at [26] to [32].[23] The care co-ordinator then sought leave to appeal to this Court on a questionof law.14 Mr Bailey responded by seeking to have the decision of the High Courtupheld on the further ground that the Family Court did not have jurisdiction to makethe deferral order on 7 February 2020.[24] Mr La Hood, senior counsel for the care co-ordinator in the High Court andthis Court posed the following two questions of law for our consideration:(a) Did the learned High Court Judge misinterpret s 87 of the IntellectualDisability Act by concluding that it does not permit the Court to deferthe expiration of a compulsory care order "at any time" provided there9 [R] v [Care Co-ordinator] [2020] NZHC 2065 (results judgment); and [R] v [Care Co-ordinator][2020] NZHC 2072 (reasons judgment).10 R v Care Co-ordinator [2020] NZCA 364.11 Habeas Corpus Act 2001, s 14(1A)(b).12 High Court judgment, above n 1.13 At [160]; and see [Care Co-ordinator] v [R] CA589/2020, 19 October 2020 (Minute of Kós P).14 Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, s 134.is an application under s 85 to extend the compulsory care orderpending at the time the compulsory care order is due to expire?(b) Did the learned High Court Judge misinterpret and/or misapply s 87 ofthe Intellectual Disability Act and the principles articulated by thisCourt in Sestan v Director of Area Mental Health Services, WaitemataDistrict Health Board15 by concluding that the orders ofthe Family Court on 20 April, 12 May and 15 May 2020 did not, insubstance, amount to a valid deferral of the expiry of R's compulsorycare order?[25] Mr La Hood also submitted "that the High Court Judge erred by failing toconsider what remedies should result on appeal" if the grounds of appeal advanced inthe High Court by the care co-ordinator were dismissed.High Court judgment[26] The High Court Judge set out the following four questions, which she wasrequired to address:16(a) If an application for extension of a care order is filed before the careorder expires, is the effect of s 87 to defer the expiry of the[compulsory] care order by operation of law until the application hasbeen heard and determined by the Family Court?(b) If the answer to (a) is no, did the Family Court in fact defer the expirydate of the [compulsory] care order under s 87, by issuing a notice ofjudicial conference and subsequent minutes?(c) If the answer to (b) is no, did the Family Court have jurisdiction toreinstate the [compulsory] care order after it had expired?(d) Did the [compulsory] care order issued by [the Youth Court] expireon 6 or 7 February 2020?[27] The Judge's analysis of the text and purpose of s 87 of the IntellectualDisability Act led her to conclude that the expiration of R's compulsory care order wasnot automatically deferred pending the determination of the extension application.15 Sestan v Director of Area Mental Health Services, Waitemata Health Board [2007] 1 NZLR 767(CA).16 High Court judgment, above n 1, at [38].Doogue J held that a deferral order under s 87 required the Family Court to "turn itsmind to the length of the period of the deferral having regard to identifying a periodthat is sufficient for the application for an extension of the [compulsory] care order tobe heard and determined".17 The Judge also said:18What is required [by s 87] is for a Judge to intentionally decide to exercise hisor her discretionary power, and to formalise that intention by the making andarticulating of an order for deferral of the expiry date.[28] The Judge accordingly answered "No" to the first question posed in her list ofissues.[29] The Judge determined that the answer to the second question was also "No"because, "neither the notice of judicial conference dated 20 April 2020, northe minutes [issued by Judge Lindsay] dated 12 and 15 May 2020 amounted to anorder of the Court under s 87 of the [Intellectual Disability Act] deferring the expirydate of the [compulsory] care order beyond 7 May 2020".19[30] When answering the third question posed by the appeal, Doogue Jdistinguished the requirements of ss 85 and 87 of the Intellectual Disability Act fromprovisions in the Mental Health (Compulsory Assessment and Treatment) Act 1992(the Mental Health Act) that govern the duration of a person's detention as a specialpatient or special care recipient under that statute.20 The Judge also found thatdecisions under the Mental Health Act do not provide direct assistance in determiningif the Family Court could have extended the deferral order after it expired on 7 May2020.[31] Doogue J's answer to the third question was:21Having found that the [compulsory] care order expired on 7 May 2020,the Family Court was correct to find it had no jurisdiction to defer its expiryin June 2020.17 At [76].18 At [77].19 At [106].20 At [85]–[86].21 At [126].[32] In addressing the fourth question, Doogue J rejected the arguments advancedby Mr Bailey that the compulsory care order expired at midnight on 6 February 2020.The Judge held the compulsory care order "commenced at 12.00 am on 8 February2017 and was originally set to expire at 11.59 pm on 7 February 2020".22 Doogue Jwas therefore satisfied the Family Court had jurisdiction on 7 February 2020 to makethe deferral order.Leave to appeal on a question of law[33] Section 134 of the Intellectual Disability Act confers jurisdiction on this Courtto hear appeals against a determination of the High Court. There are two qualificationsset out in s 134:(a) any appeal must be with the leave of this Court; and(b) appeals are confined to questions of law arising from the appeal heardby the High Court.[34] When determining an appeal under s 134 of the Intellectual Disability Act, thisCourt "has the same power to adjudicate on the proceeding as the High Court had".23[35] The decision of this Court determining an application for leave to appeal andin determining an appeal is final.[36] As we shall explain at [49] and [70], we do not accept that the questions of lawsubmitted by counsel for the care co-ordinator accurately reflect the issues raised bythe proposed appeal. Nevertheless, we are satisfied the questions we will answer arequestions of law that are bona fide and capable of serious argument in a case ofsufficient importance to warrant leave being granted to enable this Court to answerthose questions.2422 At [142].23 Intellectual Disability (Compulsory Care and Rehabilitation) Act, s 134(2).24 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.[37] Before doing so, we shall provide an overview of the Intellectual DisabilityAct.Intellectual Disability Act[38] When Parliament passed the Mental Health Act it excluded from its ambitpersons with intellectual disabilities unless they also had a mental disorder.The rationale for this decision was explained in the following way:25 intellectual disability is now seen as a learning disability that results insubstantial limitations in functioning. Unlike a mental illness, it cannot betreated. It is therefore inappropriate for persons with an intellectual disabilityto be subject to an order requiring them to undertake treatment.[39] Concerns about the risks posed to the community by some persons withintellectual disabilities and the availability of suitable responses led to the passing ofthe Intellectual Disability Act.[40] Section 3 of the Intellectual Disability Act explains the purposes of the Act are:(a) to provide courts with appropriate compulsory care and rehabilitationoptions for persons who have an intellectual disability and who arecharged with, or convicted of, an offence; and(b) to recognise and safeguard the special rights of individuals subject tothe Act; and(c) to provide for the appropriate use of different levels of care forindividuals who, while no longer subject to the criminal justice system,remain subject to the Act.[41] The principles governing the exercise of the powers conferred bythe Intellectual Disability Act are set out in s 11 of the Act. Those principles requiredecision-makers to treat care recipients so as to protect:25 Intellectual Disability (Compulsory Care) Bill 1999 (329-1) (explanatory note) at ii.(a) the health and safety of the care recipient and others; and(b) the rights of the care recipients.[42] In RIDCA Central (Regional Intellectual Disability Care Agency) v VM,this Court explained:26The reference to the rights of a care recipient in s 11(b) is not specific as towhich rights are being referred to, and there is no reason to read it down inany way we think the focus of the principles set out in s 11(b) is on morefundamental rights, particularly rights ensuring basic freedoms of the kinddescribed in the New Zealand Bill of Rights Act 1990 (the Bill of Rights) suchas the right to freedom of movement, the right not to be arbitrarily arrested ordetained, and the right to be free from discrimination on the grounds ofdisability. In a similar context, the Supreme Court of Canada used the phrase"liberty interest" to describe these rights and we will adopt the same term.[43] The Court also explained that the principles of the Intellectual Disability Actrequire:27 a balancing of the legitimate interest of the community in protecting thehealth and safety of the care recipient and others ( the community protectioninterest) against the liberty interest of the care recipient. That balancingexercise will enable the Court to achieve the purposes described in s 3, becauseit will lead to the selection of the appropriate compulsory care andrehabilitation option for the care recipient and recognise his or her rightsappropriately.[44] This approach to the purpose and principles of the Intellectual Disability Actwas recently reaffirmed by this Court in M (CA677/2017) v Attorney-General.28[45] Section 11 must be viewed as containing two principles that work in tandemso as to produce an outcome that has the least restrictive impact on a care recipient'sliberty interests while also addressing the need to protect the community and the carerecipient.26 RIDCA Central (Regional Intellectual Disability Care Agency) v VM [2011] NZCA 659, [2012] 1NZLR 641 at [35] (footnotes omitted), citing Pinet v St Thomas Psychiatric Hospital 2004 SSC21, [2004] 1 SCR 528 at [19].27 RIDCA Central (Regional Intellectual Disability Care Agency) v VM, above n 26, at [36].28 M (CA677/2017) v Attorney-General [2020] NZCA 311 at [123].[46] In addition to ss 85 and 87 of the Intellectual Disability Act, the terms of whichhave already been set out at [11] and [12], two other sections are relevant to the issuesraised by the appeal.[47] Section 46 of the Intellectual Disability Act provides for the term of acompulsory care order:46 Term of compulsory care order(1) Every compulsory care order lasts for the term specified in the order.(2) The term specified under subsection (1) may not be longer than3 years.(3) The term specified in the order may be extended under section 85.[48] Section 83 of the Intellectual Disability Act provides that "[o]n the expiry of acompulsory care order the care recipient ceases to be a care recipient".First question of law[49] As we foreshadowed at [36], the first question of law posed for ourconsideration does not fully encapsulate the issues raised by this case. The firstquestion framed by Mr La Hood omits reference to the fact the deferral order was forthree months and expired on 7 May 2020. That is a critical consideration whendetermining the scope of the phrase "at any time" in s 87(1) of the IntellectualDisability Act.[50] The issues raised by the first question require us to reframe the question in thefollowing way:Can the expiration of a compulsory care order be deferred further under s 87of the Intellectual Disability Act where a deferral order has expirednotwithstanding an application to extend the compulsory care order waspending under s 85 of the Act at the date of expiry?[51] Counsel for the care co-ordinator submitted that a proper understanding ofthe text and purpose of s 87 of the Intellectual Disability Act leads to the conclusionthat the compulsory care order did not lapse on 7 May 2020.[52] The following seven points were advanced in support of the textual argumentsput forward by Mr La Hood:(a) The power to make a deferral order under s 87 is discretionary.(b) Section 87 is only engaged where an extension application has beenmade under s 85.(c) There is no express requirement for a deferral application to be madeunder s 87. "All that is required for the court's discretion to be engagedis there be an extension application pending when the [compulsory careorder] is due to expire. The only thing that a care coordinator isrequired to do to engage the court's discretion under s 87, therefore, isbring on an extension application under s 85 when the [compulsorycare order] is due to expire".(d) The Family Court may make a deferral order "whether or not there hasbeen an application by the care coordinator without notice seeking thatan order be made" under s 87(2).(e) There are no limits to the number of times the Family Court may deferthe expiration of a compulsory care order under s 87.(f) Section 87 does not prescribe the form of a deferral order.(g) Section 87 contains a number of procedural safeguards to stop thembecoming indefinite, such as the requirement that the Court specifythe last day that is sufficient for an extension application to be heardand determined, and the power in s 87(4) to bring an application tocancel or vary a deferred compulsory care order.[53] Counsel for the care co-ordinator emphasised before us that a s 87 order isinterlocutory and interim. He submitted that Doogue J erred by conflating this withthe substantive nature of an application under s 85. Mr La Hood also saidthe discretion required to be exercised in relation to each section is distinct and that adecision under s 87 facilitates the determination of an extension application under s 85of the Intellectual Disability Act.[54] The submissions on behalf of the care co-ordinator concerning the purpose ofs 87 included the following propositions:(a) The powers contained in s 87 were designed to ensure that proceedingsconcerning an application to extend a compulsory care order could beproperly administered.(b) As the protection of the public is at the forefront of the IntellectualDisability Act, Parliament could not have intended that a compulsorycare order "should lapse in an administrative fashion when anapplication for [an] extension is pending".AnalysisText[55] We shall consider the text of s 87 of the Intellectual Disability Act underthe following headings:(a) Legislative context.(b) The meaning of "at any time".(c) Giving effect to all statutory words.(d) Judicial discretion.Legislative context[56] The meaning of s 87 of the Intellectual Disability Act is able to be ascertainedby considering its place in the context of related provisions in the Act. Section 87 isone of four sections in the Intellectual Disability Act that are very closelyinterconnected:(a) Section 83 provides that when a compulsory care order expires the carerecipient ceases to be subject to the terms of that order.(b) Under s 46, the term of a compulsory care order can be no longer thanthree years unless it is extended under s 85.(c) Correspondingly, under s 85, a care co-ordinator can apply for anextension of a compulsory care order beyond the original term ofthe order.(d) An order may be made under s 87 "at any time" to defer the expirationof a compulsory care order.[57] When read in context, it is clear s 87 provides a mechanism to prevent acompulsory care order expiring before an application under s 85 to extend the order isheard and determined.The meaning of "at any time"[58] A deferral order may be made by the Family Court under s 87 of the IntellectualDisability Act to extend the expiration of a compulsory care order "at any time".The words "at any time" are not indefinite. They refer to any time beforethe compulsory care order expires. A compulsory care order expires:(a) on the date specified in the order; or(b) on the date specified in an extension order; or(c) on the date specified in any deferral order made under s 87(1) ofthe Intellectual Disability Act.Giving effect to all words in a section[59] While at times courts are forced to ignore some words when interpreting themeaning of a section, generally speaking it is reasonable to assume that Parliamentintended every word in a section is important.29[60] The argument that an application for an extension under s 85 impliedly defersthe expiration of a compulsory care order fails to give effect to the following parts ofs 87:(a) The requirement in s 87(1) that the Court specify "a date as the last dayof a period that, in the opinion of the court, is sufficient forthe [extension] application to be heard and determined".(b) The requirement in s 87(3) that the care co-ordinator "serve a copy ofthe [deferral] order on every person who is entitled to be served with acopy of the [extension] application under s 85".[61] The interpretation put forward by counsel for the care co-ordinator requires usto interpret s 87 of the Intellectual Disability Act in a way that renders nugatory largeparts of the section. This approach would necessitate ignoring the general principle ofstatutory interpretation that requires us not to omit words when determiningthe meaning of legislation.Judicial discretion[62] We agree the Family Court has discretion to defer the expiration of acompulsory care order. In order to exercise that discretion, the Family Court must turnits mind to whether or not it is appropriate to defer the expiration of a compulsory careorder. That obligation cannot be reconciled with the proposition advanced by29 See for example, Wilson & Horton Ltd v Commissioner of Inland Revenue [1996] 1 NZLR 26(CA) at 33; and Glenharrow Holdings Ltd v Attorney-General [2005] 2 NZLR 289 (PC) at [36].Mr La Hood that an application under s 85 to extend a compulsory care ordereffectively defers the expiration of that order. A deferral order does not occurautomatically upon the making of an application to extend the term of the deferralorder. Instead, the Family Court is required to decide whether or not to deferthe expiration of a compulsory care order by exercising the discretion set out ins 87(1).[63] We also accept it will not always be necessary for a care co-ordinator to applyfor a deferral of the expiration of a compulsory care order. There may be situationswhere, for example, a court has heard an application to extend a compulsory care orderand the court, on its own motion, defers the expiration of the order pendingthe delivery of its judgment. In most cases, however, we would expect a careco-ordinator to be aware of when a compulsory care order is going to expire and applyunder s 87(2) to defer the expiration of a compulsory care order. Even wherethe Family Court decides on its own volition to make a deferral order, the Court muststill exercise the discretion set out in s 87(1) of the Intellectual Disability Act.[64] We are satisfied that the plain and ordinary meaning of the text of s 87(1)requires a conscious decision to be made by the Court to defer the expiration of acompulsory care order. It does not happen automatically upon making an applicationto extend a compulsory care order.Purpose[65] The purpose of s 87 of the Intellectual Disability Act is also clear. While thesafety of the community and a care recipient are very important considerations, so tooare the rights of a care recipient to freedom of movement,30 not to be arbitrarilydetained31 and to be free from discrimination.32[66] When it enacted the Intellectual Disability Act, Parliament put in place aregime that requires a court to assess the competing community protection interestswith the liberty interests of a care recipient. That regime requires a court to make a30 New Zealand Bill of Rights Act 1990, s 18.31 Section 22.32 Section 19.conscious decision to defer the expiration of a compulsory care order by exercisingthe jurisdiction conferred by s 87(1) of the Intellectual Disability Act. It is not a mereadministrative act to continue a person's detention when it would have otherwiseexpired. The court must consider that it is necessary to continue the compulsory careorder for a specific period of time so as to enable proper consideration of a potentialextension to that order. The balancing regime constructed by Parliament would berendered otiose if we were to uphold Mr La Hood's submission that a deferral orderunder s 87 can simply be inferred when an application to extend a compulsory careorder is pending.[67] Where a compulsory care order expires, or where a deferral order lapses,the compulsory care order comes to an end. This occurs regardless of whether thereis an extension application pending or not. Parliament intended that the procedure setout in s 87 would protect the safety of the community and a care recipient.Where, however, those procedures are not followed then there is no power toretrospectively reinstate an expired compulsory care order.[68] Had an application been made in this case before 7 May 2020 for a furtherdeferral of the expiration of the compulsory care order, we are confidentthe Family Court would have afforded it priority notwithstanding the protocol issuedby the Chief District Court Judge in response to the COVID-19 pandemic.Unfortunately, neither the care co-ordinator nor the Family Court thought aboutthe consequences of the deferral order coming to an end on 7 May 2020.[69] We recognise that the consequences of the omissions in this case have thepotential for tragic consequences for R and members of the community. The Courtscannot, however, stretch the plain meaning of s 87 to accommodate the argumentsadvanced on behalf of the care co-ordinator.[70] Therefore, the answer to the first question we have summarised at [2(a)] and[50] is "No".Second question of law[71] The principal deficiency with the second question asked of us is that itpresupposes the notice of "judicial conference" issued on 20 April 2020 was an"order" of the Family Court.[72] The more appropriate question requires us to determine if the notice of judicialconference issued on 20 April 2020 was in substance a valid deferral order. If it wasnot, then there is no merit in examining the effect of the Family Court minutes of12 and 15 May 2020 as they were plainly issued after 7 May 2020 and could notretrospectively reactivate the expired deferral order.[73] Mr La Hood conceded that, on its face, the notice of judicial conference wasnot a compliant s 87 deferral order. He instead argued that it could be construed as adeferral order "in substance". The submission that the notice of judicial conferencewas "in substance" a further deferral order is said to be based on what Mr La Hooddescribed as the "Sestan principles".[74] In Sestan v Director of Area Mental Health Services, Waitemata District HealthBoard, this Court upheld a judgment of the High Court which had declined to issue awrit of habeas corpus which had been sought to enable Mr Sestan to be released froma mental health facility.33 It was contended that the failure by hospital staff to ensurea support person was present when Mr Sestan was assessed, as required by s 9(2)(d)of the Mental Health Act, rendered unlawful Mr Sestan's subsequent detention underthe Mental Health Act. It was also contended there was an issue as to whether or notMr Sestan was in fact mentally disordered.[75] This Court was satisfied there was sufficient evidence to support a reasonablebelief Mr Sestan was mentally disordered. The Court also held that although s 9(2)(d)of the Mental Health Act had been breached, the omission did not render invalidMr Sestan's subsequent assessments and detention:34The [Mental Health Act] is aimed at defining and protecting the rights ofpeople who may be mentally disordered. Courts will not countenance33 Sestan v Director of Area Mental Health Services, Waitemata District Health Board, above n 15.34 At [88]–[90].breaches of the Act's provisions and obligations lightly. It should not beoverlooked that, within the statutory framework, ongoing protectivemechanisms exist. These checks and balances operate both during the periodsof assessment and treatment and after a compulsory treatment order has beenmade under s 17 by a Judge.Because of the nature of the jurisdiction, it is almost inevitable that there willat times be some variance or deviations from strict statutory requirements.It is important to view any non-compliance in the round rather than from ablinkered focus on isolated provisions which ignore the statutory context.We do not accept that whenever it is demonstrated that there is any degree ofnon-compliance with a specific provision the only consequence will be thetotal invalidity of all subsequent actions. The Court must assess whathappened, why it happened and how it happened, remembering thatthe protection of a vulnerable person, and potentially the community, is atthe heart of the legislative framework.[76] Sestan was referred to by the High Court in J v Attorney-General,35 whichMr La Hood submitted also supported the argument that in this case, the notice ofjudicial conference was in substance a further deferral of the expiration of R'scompulsory care order.[77] In J v Attorney-General, the High Court was concerned with a case in whichmultiple extensions of a compulsory care order and deferrals of the expiration of thatorder had been made. Two of the deferral orders were made "until further order of theCourt". Those deferral orders were made before the extant extension orders expired.Under s 87(1) of the Intellectual Disability Act the deferral orders should have been toa specified date. Within a matter of weeks, the Family Court extended the compulsorycare orders under s 85 of the Intellectual Disability Act. The High Court held that thefailure to comply with the time limit requirements of s 87(1) did not invalidate thesubsequent extension orders.36[78] Sestan and J v Attorney-General stand for the proposition that minor breachesof the Mental Health and Intellectual Disability Acts do not necessarily invalidatesubsequent steps and decisions under those statutes. That proposition, however,cannot be invoked in circumstances where a failure to comply with the relevantlegislation is so fundamental that it deprives courts of jurisdiction to take any furthersteps under the legislation.35 J v Attorney-General [2017] NZHC 701 at [112]–[113].36 At [114].[79] Mr La Hood also relied on A J Burr Ltd v Blenheim Borough Council, wherethis Court held inaccuracies in the wording of a notice purportedly issued under theTown and Country Planning Regulations 1954 did not nullify consent that the Councilhad given in 1958 to permit the construction of a butcher shop in a residential area.37The Court held that the errors were of no consequence because the Council had turnedits mind to the issues it was required to consider before issuing the consent.38[80] A J Burr Ltd v Blenheim Borough Council is also quite different from thepresent case because:(a) A deferral order requires the Family Court to turn its mind tothe requirements of s 87.(b) The notice of judicial conference merely notified the parties ofthe judicial conference and the purpose of that conference.(c) There is nothing in the notice of judicial conference that suggeststhe Family Court turned its mind to s 87.[81] We are accordingly satisfied the notice of judicial conference cannot beconstrued as a deferral order issued under s 87 of the Intellectual Disability Act.[82] Similarly, the minutes issued by Judge Lindsay on 12 and 15 May 2020 do notpurport to be deferral orders. In any event, as we have previously noted, those minutespostdate the expiration of the deferral order and could not have retrospectivelydeferred the expiration of the compulsory care order.[83] The second question of law, which we have summarised at [2(b)] and [72] isalso "No".37 A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 (CA).38 At 6 and 13.Ancillary ground of appeal[84] The ancillary ground of appeal suggests Doogue J erred "by failing to considerwhat remedies should result on appeal if her interpretation of s 87 was correct, namelythat the Family Court was required to exercise its discretionary power under s 87 ofthe [Intellectual Disability] Act prior to the expiry of the [compulsory care order] butthat it failed to do so". Mr Azam, junior counsel for the care co-ordinator, referred tothe powers of an appellate court on appeal under the Intellectual Disability Act tosupport this position.39[85] This submission is misconceived. The High Court correctly held thatthe Family Court had no jurisdiction after 7 May 2020 to extend deferral ofthe expiration of the compulsory care order. Having reached that conclusion,the High Court could not fill the void by conferring upon itself jurisdiction to issue afurther deferral order.Further grounds submission[86] Mr Bailey sought to uphold the High Court judgment by resurrecting hissubmission that the Family Court lacked jurisdiction to make the deferral order on7 February 2020.[87] Mr Bailey acknowledged that if we answered in the negative the two questionsof law posed for our consideration then, his argument to uphold the High Courtjudgment on additional grounds was moot. He nevertheless contended that ourguidance on the issue he wished to pursue might assist lower courts in future cases.[88] We decline to address the moot argument put forward by Mr Bailey.Result[89] The compulsory care order expired on 7 May 2020 when the deferral ordermade under s 87 lapsed. As a consequence, R is no longer a care recipient under theIntellectual Disability Act and can no longer be detained.39 Intellectual Disability (Compulsory Care and Rehabilitation) Act, ss 133 and 134(2).[90] The application for leave to appeal is granted.[91] The appeal is dismissed.[92] There is no order as to costs.Solicitors:Luke Cunningham & Clere, Wellington for Respondent