McLaughlin v Fosbery [1904] HCA 55

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HIGH COURT [1904,

[HIGH COURT OF AUSTRALIA.]

McLAUGHLIN z 3 ' 2 f , APPELLANT ; AND FOSBERY AND OTHERS. : 3 . RESPONDENTS.

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A, Lunacy Act (No. 45 of 1898), secs. 16, 172—Powers of committee of the person ofa

1904.

Sypyey,

June V6, V7.

20, 30. Aug, Sep.

Griffith, C.J. "Barton and. o'Connor, JJ.

Lunatic—-Order signed by committee for reception of lunatic into a licensed house 16—Forcible removal of lunatic—Action for trespass and false im- prisonment—Stay of proceedings under sec. 172—Acts done for the purpose of carrying out provisions of the Lunacy Act—Practice—Appeals from State Courts—Commonwealth Judiciary Act, 1903, sec. 37—Such judgment as ought 'to have been given in the first instance—Amendment—Format defect or irregu- larity—Title of proceedings—Privolous or rewatious action—Stay of proceedings at common law.

under

'The powers of a committee of the person of a lunatic, appointed uuder sec. 102 of the Lunacy Act, 1898, which substitutes a proceeding by declaration for the old proceeding de lunatico inquirendo, are not conferred by the Act, but are dependent upon the common law, and acts done by the committee, or by the authority of the committee, are not necessarily acts done for the purpose of carry- ing out the provisions of the Act, within the meaning of sec. 172.

'The -committee of the person of a lunatic signed an order under sec. 16 zing the reception of the lunatic into a licensed house. For the purpose of removing the lunatic there, certain members of the police force, at the request and

author

by the direction of the committee, and, in her presence, and having the order in

their possession, entered the lunatic's house, and took him to the licensed house. 'The lunatic subsequently obtained an order from the Court declaring that he had recovered his sanity, and, seven months after the making of the order, brought an action against the Inspector-General of Police, and the officers who had removed him, claiming damages for trespass and false imprisonment. On the application of the defendants in the action, the Chief Judge in Equity, sitting as the Judge in Lunacy under the Act, made an order staying all proceedings in the action under sec. 172 (3), and that order was subsequently affirmed by the Full Court.