Supreme Court New South Wales Medium Neutral Citation: Edward Kheder v President of the Mental Health Review Tribunal [2013] NSWSC 2051 Hearing dates: 18 December 2013 Decision date: 18 December 2013 Before: Rothman J Decision: 1. Refer Mr Kheder and to the extent necessary his Guardian Ad Litem the Registrar of the Court, for the purposes of referral to a barrister and/or solicitor on the panel of the pro bono legal assistance scheme. The referral is for the purpose of advice in relation to any and all proceedings seeking a review or the cessation of his incarceration or liberty order, representation on direction hearings, interlocutory or final hearing and the like, the drafting and settling of documents to be filed or used in the proceedings, the preparation and representation generally of the conduct of the proceedings and otherwise as advised. Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Uniform Civil Procedure Rules 2005 Cases Cited: Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 Category: Interlocutory applications Parties: Edward Kheder (Plaintiff) President of the Mental Health Review Tribunal (First Defendant) Greg James (Second Defendant) Attorney General in and for the State of New South Wales (Third Defendant) Representation: Counsel: L Barry as Tutor (Plaintiff) W Chan (First Defendant) No appearance (Second Defendant) No appearance (Third Defendant) Solicitors: File Number(s): 2013/86740 Publication restriction: None EX TEMPORE Judgment 1HIS HONOUR: As best as can be gleaned from the discursive affidavit filed, or purportedly filed, by the plaintiff in these proceedings, Mr Kheder is a forensic patient in a correctional facility. The guardian ad litem appointed by the State appears before the Court, and asks the Court to grant legal assistance, pursuant to the provisions of the Uniform Civil Procedure Rules 2005 (UCPR). 2Mr Kheder has been a forensic patient, or at least in custody, for approximately nine years. He maintains his innocence of the charges that led to his incarceration. It seems, although it is difficult to tell, that he did not receive legal assistance on a previous occasion, nor adequate legal assistance at some other time. It is not absolutely clear. What is clear is that a person who has been incarcerated for nine years is entitled to come before the courts and seek, if there be an error in the administration of justice, a right to be heard and to seek liberty. 3In order to do so adequately, Mr Kheder requires referral under the pro bono scheme in order to make a proper application, supported by proper affidavit material, including the filing of the material that led to his initial incarceration. 4It may be that the proper application is an application for a review of his mental state, or of his conviction or non-conviction, if special orders were made under s 69 of the Mental Health (Forensic Provisions) Act 1990. 5In any event, it is beyond doubt in these circumstances that it is in the interests of the administration of justice that Mr Kheder obtain proper legal advice, and to the extent that it is possible, assistance in the drafting of a proper summons and/or other originating process, and representation during the course of the subsequent proceedings to the commencement of that notice. 6The issues of administration of justice in a situation such as this are not dissimilar to the issues discussed by the High Court in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, in which, in effect, the High Court said that a person charged with a serious criminal offence is entitled to be properly represented before they are tried in order to ensure a fair trial. 7In this case, a person has been incarcerated for nine years. On the limited material I have seen, that incarceration has occurred in the circumstances of an order of referral to the Mental Health Review Tribunal, but without Mr Kheder being properly represented, or properly assisted in terms of that incarceration. In order for that to be reviewed and properly assessed as early as possible, it is in the interests of the administration of justice for referral to occur. 8In those circumstances, I refer Mr Kheder, and to the extent necessary, his guardian ad litem to the Registrar of the Court, for the purpose of referral to a barrister and/or solicitor on the pro bono panel for legal assistance. 9I do so because of the situation of the litigant, the capacity of the litigant to obtain legal assistance outside of the scheme, the nature and complexity of proceedings that may be instituted, and the interests and administration of justice generally. 10That referral is for the purpose of advice in relation to any and/or all proceedings seeking a review or the cessation of his incarceration or liberty order, representation on direction hearings, interlocutory or final hearing and the like, the drafting and settling of documents to be filed or used in the proceedings, the preparation and representation generally of the conduct of the proceedings, and otherwise as advised. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 September 2014