Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Northern Sydney Local Health District v SM [2018] NSWCA 268 Hearing dates: 5 November 2018 Decision date: 05 November 2018 Before: White JA Decision: 1. Order that the notice of appeal filed on 23 August 2018 be dismissed as incompetent. 2. Order that the respondent to the notice of motion pay the applicant's costs of the notice of motion filed 24 September 2018. Catchwords: CIVIL PROCEDURE – Application to dismiss appeal as incompetent – Where SM was detained under Mental Health Act 2007 (NSW) – Where primary judge held that SM was a mentally ill person and that no care of a less restrictive kind was appropriate – Whether appeal involves a civil right amounting to or of the value of $100,000 or more – Mental Health Act 2007 (NSW) – Appeal dismissed as incompetent Legislation Cited: Mental Health Act 2007 (NSW), ss 35, 166 Supreme Court Act 1970 (NSW), ss 46, 101 Uniform Civil Procedure Rules 2005 (NSW), r 51.41 Cases Cited: Clyne v New South Wales Bar Association (1960) 104 CLR 186 GKD v Director-General [2012] NSWCA 219 Oertel v Crocker (1947) 75 CLR 261 Re DG and the Adoption Act 2000 [2007] NSWCA 241; (2007) 244 ALR 195 Re Felicity [2012] NSWCA 272 SM v Northern Sydney Local Health District [2018] NSWSC 1274 Category: Procedural and other rulings Parties: Northern Sydney Local Health District (Applicant) SM (Respondent) Representation: Counsel: S A Woods (Applicant) Self-Represented (Respondent) Solicitors: Crown Solicitors (Applicant) File Number(s): 2018/259015 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. WHITE JA: This is an application under r 51.41 of the Uniform Civil Procedure Rules 2005 (NSW) to dismiss an appeal as incompetent. The appellant, SM, was the plaintiff in the proceedings below. 2. On 23 August 2018 SM filed a notice of appeal, purportedly as of right, from orders of Fullerton J of 15 August 2018 dismissing her summons (SM v Northern Sydney Local Health District [2018] NSWSC 1274). 3. By her summons filed in the Common Law Division on 30 July 2018 SM had sought an "urgent order" under s 166 of the Mental Health Act 2007 (NSW) that the Medical Superintendent of the Royal North Shore Mental Health Facility bring SM before the Supreme Court for examination on 31 July 2018. She also sought a declaration that she is not a mentally ill person and an order that she be discharged immediately from the Royal North Shore Mental Health Facility. Section 166 of the Mental Health Act relevantly provides: "166 Jurisdiction of Court to order discharge or transfer of detained person (cf 1990 Act, s 285) (1) The Court must order the medical superintendent of a mental health facility to bring a person before the Court for examination at a time specified in the order if the Court receives information on oath or has reason or cause to suspect: (a) that the person is not a mentally ill person or a mentally disordered person and is detained in the facility, or (b) that the person is a mentally ill person or a mentally disordered person detained in the facility and that other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person, or (c) that the person is a forensic patient or correctional patient who is wrongly detained in the facility. (2) The Court must order that a person (other than a forensic patient or correctional patient) examined under this section be immediately discharged from the mental health facility in which the person is detained if, on examination, the medical superintendent is unable to prove on the balance of probabilities: (a) that the person is a mentally ill person or a mentally disordered person, or (b) if the person is a mentally ill person or a mentally disordered person, that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person." 1. No order was made for the plaintiff's examination. In her reasons for judgment the primary judge records that notwithstanding her misgivings, with the consent of both parties she approached the question of final relief on the basis that SM was before the primary judge for examination and it was for the defendant to discharge the onus under s 166(2) on the balance of probabilities that SM is a mentally ill person and that no care of a less restrictive kind consistent with safe and effective care is appropriate and reasonably available to her (at [30]). 2. The primary judge was satisfied on the evidence adduced that the onus on the defendant of establishing that SM was a mentally ill person was discharged (at [35]). Her Honour was also satisfied that the defendant had discharged its onus of establishing that no care of a less restrictive kind was consistent with the safe and effective care of the plaintiff which was both appropriate and reasonably available in the facility in which she was detained (at [37]). Accordingly SM's summons was dismissed. 3. SM's notice of appeal challenges what she characterises as the primary judge's rejection of a psychologist's certification that SM did not suffer from any mental illness and challenges the primary judges acceptance of a diagnosis of a Dr Drew which SM claims to be a distortion of the facts. 4. In her notice of appeal SM contends that the primary judge ought to have ordered her immediate discharge as the primary judge acknowledged, so it is said, that SM was not a danger to anyone, including herself. 5. As I have said more than once during the course of oral submissions, the merits of the purported appeal are not presently in issue. The only question is whether SM can appeal as of right or only with leave. There is evidence that at a hearing before the Registrar on 19 August 2018 the Registrar ordered SM to file and serve a summons for leave to appeal and waived the additional fees in doing so. There is also evidence that on 26 September 2018 SM informed the Registrar she would not be seeking leave to appeal. 6. In her written submission filed on 31 October 2018 SM says that if the Court disagreed with her contention that leave to appeal is not required, then she wishes to apply for leave to appeal. No summons seeking leave to appeal has yet been filed, although submissions were made on that question by both parties. No application for leave to appeal is before me and as a single judge of appeal I would not have jurisdiction to grant or refuse leave to appeal (Supreme Court Act 1970 (NSW), s 46(3)). The only question before me is whether the notice of appeal is competent. 7. The appeal is brought pursuant to s 101(1)(a) of the Supreme Court Act, being an appeal from a judgment or order of the Court in a Division. Section 101(2)(r) provides: "(2) An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from: ... (r) a final judgment or order in proceedings of the Court, other than an appeal: (i) that involves a matter at issue amounting to or of the value of $100,000 or more, or (ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more." 1. The appeal does not "involve a matter at issue" that had any monetary value within the meaning of s 101(2)(r)(i) (Oertel v Crocker (1947) 75 CLR 261 at 265; Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 205; Re DG and the Adoption Act 2000 [2007] NSWCA 241; (2007) 244 ALR 195 at [21]). 2. SM submits that the appeal is against final orders that "involve ... [a] question to or respecting any ... civil right amounting to or of the value of $100,000 or more". The civil right contended for, as I understand this submission, is a right not to be unlawfully detained and compelled to accept forcible application of medication. The applicant on the motion did not dispute that in s 101(2)(r)(ii) a "civil right" can encompass not merely a right to sue for a civil wrong, but a freedom enforceable by law from encroachment on a liberty, whether or not the encroachment is compensable as a civil wrong. On this assumption which I am prepared to accept, SM's appeal involves a question respecting a civil right. But in my view if that civil right is susceptible to monetary valuation, it is not possible to say that the value of the right is $100,000 or more. 3. Curiously enough, there is no evidence on this application as to for how long or in what conditions SM was detained in the Royal North Shore Mental Health Facility. It appears from the primary judge's reasons (at [3] and [6]) that her involuntary detention commenced on 18 July 2018. It appears from the primary judge's reasons that on 1 August 2018 the Mental Health Tribunal determined pursuant to s 35 of the Mental Health Act that SM was a mentally ill person and that she was to be detained in or admitted and detained in a particular unit of the Royal North Shore Hospital for further observation or treatment or both as an involuntary patient until her discharge on a date no later than 29 August 2018 (at [12]). 4. Although there was no clear evidence about the matter before me, I infer that that order must have been extended because on 3 September 2018, a psychiatric registrar made a report to the Mental Health Tribunal in which the hospital requested that a community treatment order for six months be made during which time the doctors hoped that "psychoeducation" would be provided to SM to enable her to become a voluntary patient in the future. The respondent's written submissions dated 24 October 2018 record that SM was then no longer detained and her liberty had been restored, subject to a community treatment order made by the Mental Health Tribunal. 5. The evidence submitted by SM to establish that the civil right she contends has been infringed has a monetary value that exceeds $100,000 is an affidavit made by her on 25 October 2018 in which she deposes that she is a certified internal auditor of the Institute of Internal Auditors (Australia) and had a salary of $100,000 per year. I interpolate that the hospital's report to the Mental Health Tribunal of 3 September 2018 records that SM had previously worked as an internal auditor which corroborates her submission that she was no longer so employed. SM deposes that it was a result of the doctors from Royal North Shore hospital claiming that she was suffering from a delusion and was a mentally ill person that she can no longer pursue her career as an internal auditor as that is a profession requiring high level, evidence based, and analytical thinking skill. She says that she could have worked as an internal auditor for 20 years and says that she has a tortious claim in an amount of at least $2 million. 6. This evidence was adduced without objection. Nonetheless, her evidence that the diagnosis that she suffers from a delusion and is a mentally ill person means that she cannot pursue her career as an internal auditor is a bare assertion. There is no evidence that an articulate and otherwise rational person, but for the particular delusion or delusions in question, could not carry out the functions of an internal auditor. The delusion in question seems to bear no relation to an audit function. 7. In any event if the evidence of SM were accepted at face value it would only establish that it was the doctor's diagnoses, and not her compelled admission to the mental health facility and her compelled medication, that affected her ability to work as an internal auditor. That would not demonstrate the civil right she asserts, being freedom from compulsory admission to the mental health facility and compulsory medication, has a monetary value in excess of $100,000. 8. SM submits that the diagnoses and her involuntary detention have had widespread effects. She instances a letter written by the Crown Solicitor to her dated 24 October 2018 in another proceeding in which it is asserted by the Crown Solicitor that SM is a person under legal incapacity and incapable of commencing or carrying on proceedings, except by a tutor. The correctness of that assertion is not before me. Assuming it to be correct, nonetheless, it does not follow that the question involving or respecting her claimed civil right has a monetary value and that that value exceeds $100,000. 9. Where the right in question is in principle incapable of being valued in money, leave to appeal is required (see authorities cited above at [11] and also GKD v Director-General [2012] NSWCA 219 at [5] and Re Felicity [2012] NSWCA 272 at [5]). 10. The notice of appeal should be dismissed as incompetent. That order will not preclude SM from filing a summons seeking leave to appeal and an extension of time for doing so. I am told that the Registrar has already waived the filing fee on the summons for leave to appeal. 11. For these reasons I order that the notice of appeal filed on 23 August 2018 be dismissed as incompetent. I will hear the parties on costs. [Parties address on costs.] 1. Had SM complied with the directions of the Registrar that she file a summons seeking leave to appeal, this application would have been unnecessary. I do not accept that the application raises any general question of public interest that might otherwise displace the usual order as to costs. 2. I order that the respondent to the notice of motion pay the applicant's costs of the notice of motion filed 24 September 2018. ********** 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: 09 November 2018