State of New South Wales v Talovic [2014] NSWCA 333

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Talovic [2014] NSWCA 333 Hearing dates: 4 August 2014 Date of orders: 25 September 2014 Decision date: 25 September 2014 Before: Basten JA at [1]; Emmett JA at [47]; Tobias AJA at [161] Decision: (1) Grant the State leave to appeal from the judgment and orders of the District Court made on 10 December 2013.

(2) Direct that, within 7 days of the date of this judgment, the State file the draft notice of appeal in the form contained in the white folder.

(3) Otherwise dispense with the rules with respect to service of the notice of appeal.

(4) Set aside order (1) made by the District Court, giving judgment for Mr Talovic in an amount of $85,000.

(5) Remit the matter to the District Court on the basis that:

(a) Mr Talovic is entitled to an award of compensatory damages for trespass to land in the amount of $5,000;

(b) Mr Talovic is not entitled to an award on account of exemplary damages;

(c) there be a retrial of his claim for compensatory damages for false imprisonment.

(6) Set aside order (2) with respect to the costs of the trial and direct that the question of costs, if not otherwise resolved, be in the discretion of the judge determining the retrial.

(7) Otherwise dismiss the appeal to this Court.

(8) Order that Mr Talovic pay 75% of the State's costs of the appeal.

(9) Grant Mr Talovic a certificate under the Suitors' Fund Act 1951 (NSW) with respect to the costs in this Court. Catchwords: MENTAL HEALTH – confinement and restraint of mentally ill persons and similar orders – detention by police under s 22 of the Mental Health Act 2007 (NSW) – whether the prerequisites of that section were satisfied – construction of the undefined phrase "mentally disturbed" – whether a subjective test applies to the first prerequisite of s 22(1)