JKL by his tutor Jennifer Thompson v Justice Health and Forensic Mental Health Network [2021] NSWCA 94

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: JKL by his tutor Jennifer Thompson v Justice Health and Forensic Mental Health Network [2021] NSWCA 94 Hearing dates: 29 April 2021 Date of orders: 19 May 2021 Decision date: 19 May 2021 Before: Bell P at [1]; Macfarlan JA at [98]; Meagher JA at [99] Decision: 1. Grant leave to appeal. 2. Appeal dismissed. Catchwords: COURTS AND TRIBUNALS – Mental Health Review Tribunal – whether Tribunal's power to transfer forensic patients into a mental health facility includes power to specify when transfer is to occur and to what particular mental health facility a patient is to be transferred to. MENTAL HEALTH – Mental Health Review Tribunal – jurisdiction – whether Mental Health Review Tribunal had power to order the transfer of a forensic patient to a mental health facility "when a bed becomes available" – whether the Tribunal took into account an irrelevant consideration when it had regard to the availability of beds at a specific mental health facility in the course of exercising its power to make a transfer order under s 48 of the Mental Health (Forensic Provisions) Act 1990 (NSW) – where the relevant statutory context supported considerations of "practicability" as being relevant to the exercise of the transfer power under s 48 of the Act. STATUTORY INTERPRETATION – jurisdiction – Mental Health Review Tribunal – whether Mental Health Review Tribunal had power to order the transfer of a forensic patient to a mental health facility "when a bed becomes available" – where the relevant statutory context supported considerations of "practicability" as being relevant to the exercise of the transfer power under s 48 of the Act. STATUTORY INTERPRETATION – jurisdiction – Mental Health Review Tribunal – whether power to transfer a patient to or from a mental health facility includes power to specify when such a transfer should occur – implied incidental power – source of power – extent of implied incidental power. Legislation Cited: Crimes (Serious Sex Offenders) Act 2006 (NSW) ss 11(d), 17(1)(b) Health Services Act 1997 (NSW) s 41, Sch 2 Mental Health (Criminal Procedure) Act 1990 (NSW) s 39 Mental Health (Forensic Provisions) Act 1990 (NSW) ss 39, 40, 41, 42, 44, 46(1), 47, 48, 55, 56, 74, 76A, 76B(1), 76E, 77C, Pt 5 Mental Health Act 2007 (NSW) ss 4, 37(1), 38(4), 68, 109(1)(c), 140, 141, 150, 151, 161, Ch 5 Pt 2 Div 1 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 69, 70, 71, 72, 75, 77, 78, 80, 81, 82, 83, 84, 86, 87, 115, 150(1), Pt 5 Cases Cited: A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal [2010] NSWSC 1363 Attorney General for New South Wales v Melco Resorts and Entertainment Ltd (2020) 102 NSWLR 47; [2020] NSWCA 40 Attorney-General (NSW) v X (2013) 235 A Crim R 17; [2013] NSWSC 1392 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3 Director of Public Prosecutions (NSW) v Khoury (2014) 238 A Crim R 251; [2014] NSWCA 15 Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-stock Corporation (1990) 96 ALR 153 Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 Secretary, New South Wales Ministry of Health v W (2020) 102 NSWLR 969; [2020] NSWCA 212 Small v Smith (1884) 10 App Cas 119 Winters v Attorney-General (NSW) (2008) 182 A Crim R 107; [2008] NSWCA 33 Texts Cited: New South Wales Government Gazette, No 151, 26 November 2008 P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) Category: Principal judgment Parties: JKL by his tutor Jennifer Thompson (Applicant) Justice Health and Forensic Mental Health Network (Respondent) Representation: Counsel: