CHU V DIRECTOR, AREA MENTAL HEALTH SERVICES HC WN CIV-2006-485-1676

CHU V DIRECTOR, AREA MENTAL HEALTH SERVICES HC WN CIV-2006-485-1676 27 October 2006IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2006-485-1676BETWEEN DAVID PHILLIP CHU Plaintiff AND DIRECTOR OF AREA MENTAL HEALTH SERVICES, WELLINGTON Defendant Hearing: On the papers Counsel: T Ellis for Plaintiff V Sim for Defendant Judgment: 27 October 2006 In accordance with r 540(4) I direct the Registrar to endorse this judgment with a delivery time of 3.00pm on the 27 th day of October 2006.COSTS JUDGMENT OF CLIFFORD J Background[1] This is an application for costs consequent upon an habeas corpus action by the plaintiff, David Phillip Chu. [2] The background to this application may be summarised as follows: a) Mr Chu was assessed under s 9 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 ("the Act") in a holding cell of the Wellington District on 7 July this year. Mr Chu was at that point on remand in custody following charges of burglary, theft, aggravated assault and being unlawfully in an enclosed yard.b) Following that assessment Mr Chu was subject to compulsory further assessment and treatment at Ward 27 of the Wellington Public Hospital. c) On 24 July 2006, Fogarty J granted a writ of habeas corpus on Mr Chu's application. He did so on two principal grounds. First, he found the process followed on 7 July had not complied with s 9(2)(d) as no relative or caregiver of Mr Chu had been involved. He found the process followed to have been "quite contrary" to s 9(2)(d). Secondly, he was not satisfied that the grant of a writ of habeas corpus was a consequence inconsistent with the scheme and purpose of the Act. He reached this conclusion in response to submissions that it would be inappropriate for the writ of habeas corpus to issue, and for the Court to release a person who was undergoing compulsory treatment and had had that treatment recently confirmed under s 16 of the Act. d) In reaching that conclusion he recognised that, following the grant of the writ, there would be a power under the Act for the compulsory assessment and treatment processes be started again. In doing so he stated as follows:[19] The answer to this possibility is that upon the writ of habeas corpus being granted immediately, forthwith, the power resumes under the 1992 Act for processes to be followed. That indeed was the context of the decision inKeenan. That decision was written on a Friday evening and one of the matters discussed between the bench and counsel was whether or not it would be appropriate for the processes under s 9 to be started again late on a Friday night or whether it would be in the interests of the applicant in that case that they be started on the Monday. The Court was of the view for the latter proposition, and the applicant and proposed patient agreed, and it was for that reason that the writ, with his agreement, lay in Court until noon on the Monday. [20] I am left with the conclusion that the consequence of issuing a writ of habeas corpus does not mean that a proposed patient is now suddenly immune from being reconstrained by the processes under the 1992 Act. Of course, where time has elapsed as here, and as in Keenan,one expects that there would be a reconsideration of the need for compulsory treatment and depending on the elapse of time, and any change in circumstances, there will be a new decision under s 8A and a new certificate under s 8B, and then a process started under s 9. But as the statute envisages, these processes can be done extremely swiftly and are so done.e) Following the grant of the writ of habeas corpus, and as it was still a condition of Mr Chu's bail that he reside at Ward 27, Mr Chu returned there, albeit no longer subject to compulsory treatment. That evening Mr Chu would appear to have declined medication, and gone to sleep around 8pm. f) Later that same evening he was woken, again assessed under s 9, again without any family member present, and once again made the subject of compulsory assessment and treatment pursuant, as I understand, to s 10 of the Act. g) As from 28 July, Mr Chu continued to be held under ss 12 and 13 of the Act. [3] On 1 August a second application for a writ of habeas corpus was filed on behalf of Mr Chu. That application came to be heard before me on 4 August. [4] That application did not proceed to a hearing on that date, because Mr Chu was on that date discharged from the compulsory assessment and treatment process. As recorded in a Minute I issued that day, when the matter was first called at 10.30am I was advised by Ms Sim, acting for the defendant, that Mr Chu was undergoing further assessment that morning with a view to his being released by approximately 2.00pm. Ms Sim asked for the matter to be stood down until that time. [5] Mr Ellis, pointing to the urgency requirements of s 9 of the Habeas Corpus Act 2001, submitted that I ought to make an interim order of habeas corpus releasing Mr Chu until 2.00pm, subject to the further process of assessment being carried out.[6] As requested by Ms Sim, I did adjourn the matter. When the matter was called again at 2.00pm both counsel confirmed that Mr Chu had been released from compulsory treatment, that the application of habeas corpus was therefore moot, but that the question of costs was to be reserved. [7] I subsequently received submissions from both counsel on the question of costs. Ms Sim opposed the award sought by Mr Ellis.Costs in habeas corpus applications[8] Section 14(4) of the Habeas Corpus Act 2001 provides that costs in habeas corpus applications are at the discretion of the Court. All matters relating to the costs of an application are in the discretion of the Court, and the Court may refuse costs for a successful party or order a successful party to pay costs to an unsuccessful party. [9] The Court in Manuel v Superintendent of Hawkes Bay Regional Prison[2006] 2 NZLR 63, an appeal against an order of costs made against an applicant following an unsuccessful habeas corpus action, said at [32]:In addition to confirming a continuing jurisdiction in respect of costs, s 14(4) also specifically contemplates that a lawful detainer may, notwithstanding the lawfulness of the detention, be ordered to pay costs to the detainee, or be refused costs against the detainee. That approach is entirely consistent with the authority and crucial importance of the great writ in the protection of liberty.[10] Manuel reflects the particular approach to costs provided for in the case of habeas corpus applications. [11] The Habeas Corpus Act makes no reference to the case where a habeas corpus application is discontinued, as in effect happened here. The general principle, in civil proceedings, would appear to involve an enquiry as to whether the plaintiff acted reasonably in commencing the proceeding and, similarly, the defendant in defending it. For example, where the defendant acted reasonably in taking a step which rendered the proceeding nugatory and the plaintiff therefore acted reasonably in discontinuing, costs are likely to lie where they fall, the result ordered by theCourt in Olive Francis Retirement Home Ltd v Director General of Health HC AK CIV-2005-404-1367 13 July 2005. [12] However, the primary rational behind the costs provision in the case of habeas corpus applications remains the importance of access to the writ. If a defendant may in some cases be ordered to pay costs to an unsuccessful plaintiff, it must be the case that they may also be ordered to pay costs to a plaintiff where, as here, the merits of the case were never decided. The question is whether such an award is appropriate here.Is an award of costs reasonable in the circumstances?[13] Mr Chu first applied for, and was granted, a writ of habeas corpus by Fogarty J on 24 July 2006 on the basis that his rights under s 9(2)(d) of the Act had been breached. [14] This application arose in circumstances where, later on that same day, mental health services recommenced the processes under the Act, leading to a second decision that Mr Chu was in need of further assessment and treatment. Fogerty J had foreseen that this may be necessary at some future stage. However, a family member was again not present during the assessment process, which was the very breach for which the first writ of habeas corpus had been granted that afternoon. Given the facts that the process was recommenced so soon after Mr Chu obtained the writ, and was again carried out without a family member present, it seems to me that the least that can be said is that the second application for habeas corpus was not unreasonable. [15] Subsequent submissions by the defendant indicate that hospital staff were acting out of real concern for Mr Chu's health, and did go to some lengths to ensure that his rights were adequately protected that evening. However, the final merits of the case are not in issue here. Prima facie, the application appeared reasonable. [16] The defendant submits that this was not the proper process for the plaintiff's challenge and refers to the earlier submission that an application for judicial review would have been more appropriate.[17] An application for a writ of habeas corpus may not have been the most appropriate course of action, but this is not decisive in an award for costs. In Manuel, William Young J said he could not see the point in a second habeas application in that case, but was "persuaded that my perception as to what would have been the most reasonable and sensible way for Mr Manuel to proceed is not the controlling consideration". The High Court decision to award costs against the unsuccessful plaintiff was set aside. [18] Given the importance of the writ of habeas corpus as a means to protect the liberty of the individual, and because I have concluded that this second application on behalf of Mr Chu was, at least, not unreasonable, I conclude that an order for costs is appropriate. At the same time, and whilst the merits of Mr Chu's application were not argued before me, I also note the views I expressed above that subsequent submissions indicated that hospital staff did go to some lengths to ensure Mr Chu's rights were adequately protected, and involved a nurse as a caregiver in terms of the s 9(2)(d) requirements. I also note, although again the merits of this matter were not traversed before me and counsel for Mr Chu takes a different view, the defendant might be said to have continued acting reasonably in following the course of action that ultimately led to Mr Chu's discharge on Friday 4 August 2006. [19] Therefore, and like Venning J in Palmer v Superintendant Auckland PrisonHC AK CIV-2006-404-2065 27 September 2006, I think that any order for costs must properly be on a limited basis. [20] In the circumstances, and particularly given the way matters proceeded on the day set down for hearing, I think an award on a discretionary basis is appropriate. Accordingly, I award costs of $2,500 in favour of the plaintiff, Mr Chu. _______________________Clifford JSolicitors: N B Dunning, Wellington, for Plaintiff Crown Law Office, Wellington, for Defendant