Benn v State of New South Wales [2015] NSWSC 1672

Supreme Court New South Wales

Medium Neutral Citation: Benn v State of New South Wales [2015] NSWSC 1672 Hearing dates: 21 October 2015 Date of orders: 13 November 2015 Decision date: 13 November 2015 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders that:

(1) Leave to appeal in relation to appeal Ground 4 is granted.

(2) The appeal is dismissed.

(3) The decision of his Honour Magistrate Heilpern dated 14 April 2015 is affirmed.

(4) The summons filed 19 June 2015 is dismissed.

(5) The plaintiff is to pay the defendant's costs on an ordinary basis as agreed or assessed. Catchwords: LOCAL COURT APPEAL – plaintiff apprehended under s 22 of the Mental Health Act 2007 (NSW) – whether Magistrate erred in determining that apprehension was lawful – whether issue of whether apprehension was lawful was raised at trial Legislation Cited: Crimes Act 1900 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Local Court Act 2007 (NSW) Mental Health Act 1990 (NSW) Mental Health Act 2007 (NSW) Cases Cited: Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78 Christie v Leachinsky [1947] 1 All ER 567; [1947] AC 573 Civil Procedure Act 2005 (NSW) Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 Pedro v Diss [1981] 2 All ER 59; (1980) 72 Cr App Rep 193 R v Inwood [1973] 2 All ER 645; [1973] 1 WLR 647 State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 Category: Principal judgment Parties: Andrew Stephen Benn (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: B Cochrane (Plaintiff G Bateman (Defendant)