COOKE V DIRECTOR OF AREA MENTAL HEALTH SERVICES HC AK CIV 2007-404-5047

COOKE V DIRECTOR OF AREA MENTAL HEALTH SERVICES HC AK CIV 2007-404-5047 7 February 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-5047BETWEEN PETER DAVID JAMES COOKE Applicant AND DIRECTOR OF AREA MENTAL HEALTH SERVICES Respondent Hearing: 7 February 2008 Counsel: Mr P D J Cooke, Applicant in person M A Woolford for Respondent Judgment: 7 February 2008(ORAL) JUDGMENT OF HEATH JSolicitors: Crown Solicitor, PO Box 2213, Auckland Copy to: Applicant in person[1] Mr Cooke seeks leave to appeal out of time against a judgment delivered by Judge Robinson, in the District Court at Auckland, as long ago as 29 July 1993. [2] The application before the District Court dealt sought a compulsory treatment order under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Act). It followed Mr Cooke's admission to North Shore Hospital on 7 July 1993 following an incident in which he had been involved. [3] There was some evidence before the District Court from a psychiatrist in support of the application. Judge Robinson held that the evidence was insufficient to establish a "mental disorder" in the terms defined by the Act. [4] Before a compulsory treatment order could be made under the Act, a Judge was required to find that a person was suffering from a "mental disorder" as defined in s 2 of the Act. The term "mental disorder" was defined as follows:mental disorder, in relation to any person, means an abnormal state of mind (whether of a continuous or an intermittent nature), characterised by delusions, or by disorders of mood or perception or volition or cognition, of such a degree that it— (a) Poses a serious danger to the health or safety of that person or of others; or (b) Seriously diminishes the capacity of that person to take care of himself or herself;— and mentally disordered, in relation to any such person, has a corresponding meaning:[5] Having heard evidence, the Judge concluded that Mr Cooke did not pose a serious danger to the health or safety of himself or others. Nor, he found, was Mr Cooke's ability to care for himself seriously diminished. [6] In those circumstances Mr Cooke was not suffering from a "mental disorder" as defined for the purposes of the Act. The Judge dismissed the application for a compulsory treatment order.[7] Unfortunately, in the course of giving an oral decision, the Judge on a number of occasions referred to a "mental disorder" being suffered by Mr Cooke, notwithstanding his finding that his state did not fall within the statutory definition. [8] I am satisfied from a fair reading of the judgment that what was intended was a reference to the psychiatric evidence rather than a finding that Mr Cooke was suffering from a mental disorder. It seems that the Judge used the term "mentally disordered" in both a technical and a colloquial sense and it is that dual use which has caused Mr Cooke concern and led him to seek leave to appeal out of time. [9] Mr Cooke is entitled to have this Court say categorically that the finding made by the District Court was that he was not suffering a "mental disorder" at the time of the hearing in 1993. I apprehend that that resolves the real underlying concern Mr Cooke has. [10] Nevertheless, it is necessary for me to address two points raised by Mr Woolford, on behalf of the Director of Area Mental Health Services, in opposition to the application. [11] First, Mr Woolford submitted that there was no jurisdiction for this Court to grant leave to appeal out of time having regard to the terms of the District Courts Act 1947 which governed rights of appeal at the time the decision in issue was given. It is unnecessary for me to determine that point as I prefer to base a jurisdictional decision on Mr Woolford's second ground. [12] Mr Cooke's real difficulty, in seeking leave to appeal out of time, is that he is in fact appealing against a judgment which found in his favour. As a matter of law a successful party cannot appeal the reasoning which led to a result in their favour. Generally, see Amalgamated Builders Ltd v Nile Holdings Ltd (2000) 14 PRNZ 652 (CA) and Caie v Attorney-General (CA108/01, 22 December 2005), leave to appeal refused in Caie v Attorney-General (2006) 18 PRNZ 66 (SCNZ). That hurdle is fundamental and Mr Cooke cannot, as a matter of law, overcome it.[13] For that reason, there is no jurisdiction to entertain either an application to appeal out of time or an appeal itself. Nevertheless, as it happens, the underlying concern of Mr Cooke has been addressed earlier in this judgment. [14] The application for leave to extend the time to appeal is dismissed. [15] There will be no order as to costs. [16] Mr Cooke does not seek a suppression order in respect of his name, given the issues that have been addressed in this judgment. _______________________ P R Heath J