Supreme Court New South Wales Medium Neutral Citation: Williams v Nielssen and Ors [2019] NSWSC 1133 Hearing dates: 31 August 2019 Date of orders: 31 August 2019 Decision date: 31 August 2019 Jurisdiction: Common Law Before: Hamill J Decision: (1) The summons and supporting evidence be filed and served by Tuesday 3 September 2019. (2) The matter is listed first before the Registrar on Wednesday 4 September 2019 for referral to the Duty Judge. (3) Direct the Registrar of the Supreme Court to arrange for either a telephone link or an AVL link to enable the matter to proceed on Wednesday. (4) Direct those with responsibility for Mr William's custody at the Prince of Wales Hospital to facilitate the transmission of his documentation to the Supreme Court Registry in accordance with the first order (that is, by Tuesday 3 September 2019). (5) Direct that a copy of these orders and this judgment be provided to the nominated defendants and to the people presently in charge of Mr William's custody. (6) Recommend that the staff at the Prince of Wales hospital facilitate that Mr Williams have access to his laptop for the limited purpose of obtaining those documents to allow their transmission to the Supreme Court registry. (7) Otherwise, all interlocutory orders sought are refused. Catchwords: CIVIL LAW – habeas corpus – urgent application – where plaintiff subject to orders under Mental Health Act – involuntary patient – whether appropriate to hear application ex-parte – where plaintiff a barrister – Court constituted on a Saturday evening – other parties not present – application heard by telephone link – technical difficulties – plaintiff present at hospital in presence of nurses – no documentation before court – urgency arising due to threats of harm to plaintiff – extensive history provided – one side of story – irresponsible to make orders – directions made for urgent hearing Legislation Cited: Mental Health Act 2007 (NSW) Supreme Court Act 1970 (NSW) Category: Procedural rulings Parties: Jason (Jay) Williams (plaintiff) Dr Olav Nielssen (first defendant) Prince of Wales Hospital (second defendant) The Minister for Health (third defendant) The State of New South Wales (fourth defendant) New South Wales Bar Association (fifth defendant) Representation: Self-represented (Plaintiff) Defendants not present or legally represented File Number(s): 2019/00272742 EX TEMPORE Judgment (revised) 1. This is an urgent, ex parte, application by Jason or Jay Williams for an order, or orders, in the nature of habeas corpus. It arises out of events which occurred, at least initially, on or about 16 August 2019 following a report or opinion provided by a psychiatrist, Dr Olav Nielssen. Since that time Mr Williams has essentially been in custody at the Prince of Wales Hospital involuntarily. He tells me that during that time, he has been forcibly injected with drugs against his will and also more recently subjected to threats, including death threats. 2. He has provided me with an extensive history going back to about June of this year when he says that he was drugged and subject to what sounds like a very brutal rape whilst he was unconscious or semi-conscious. Since then the perpetrators of the drugging and raping, or those behind it, have subjected him to extortion attempts, ongoing demands, and threats against his family and children. The results of this have been devastating to him and indeed, as I understand it, led to the breakdown of his relationship with his wife. He is a barrister and is extremely keen to return to work but at the moment he can't do so because he is in essence incarcerated against his will. 3. It is now a little after 8:50pm on Saturday evening, 31 August 2019. The case came before me as Duty Judge following a series of phone calls between Mr Williams and my Associate, Ms O'Shaughnessy. [As a result of those telephone conversations the Court was convened in Court 9B of the Law Courts Building in Queen's Square. Mr Williams was not present in Court but at the Prince of Wales Hospital in company with one or two nurses. The Court was convened a little after 7pm and there were some technological difficulties. In particular, two or three attempts to organise a telephone link failed on the Court's system. In the result, my Associate's mobile telephone device was used to make the call. It was placed near the microphone on the bench in the hope that the recording system in the courtroom would pick up both ends of the conversation. This judgment was communicated using my own mobile telephone while my Associate's device was used to record the judgment. Whether the hearing itself was recorded is not known at the time of revising this judgment (Sunday 1 September 2019) after it was transcribed by my Associate. If the proceedings were not recorded by the in-court recording system, notes have been made by my Associate and they will kept with the file. Mr Williams objected to the presence of the nurses because he sought to raise matters of "national security". Having heard from the nurses, who were bound I gather by the protocol of the ward and instructions from treating doctors, I declined to direct them to leave the room.] [1] 4. The history that Mr Williams has provided includes the fact that he was referred to Dr Nielssen by the NSW Bar Association and voluntarily went. He now seeks to bring an action against a number of named defendants being: 1. Dr Nielssen himself. 2. The Prince of Wales Hospital, where he is currently incarcerated. 3. The Minister for Health (I assume for the State of New South Wales). 4. The New South Wales government (that is, the State of New South Wales). 5. The New South Wales Bar Association. 1. Without meaning to provoke such an action, but based on the history he has provided me, it may also be that the (NSW) Mental Health Review Tribunal could find its way into his initiating process. 2. One of the difficulties that I have had is that the documentation, which Mr Williams was very keen for me to see, has not been communicated or transmitted to me for various reasons of no great importance (although I don't by saying that suggest the documentation itself is not important). [My understanding is that there was some reluctance on the part of the hospital staff to email the documents due to their sensitivity but I have no direct knowledge, evidence or submissions relevant to that issue.] 3. What is significant is that I was told by a nurse who is present that there is some form of review under the Mental Health Act 2007 (NSW) due to occur, [perhaps on Monday 2 September 2019. Mr Williams tells me that that is not true. [It is impossible at this time to resolve that conflict of information.] 4. Mr Williams also said that he is subject to death threats and is in serious physical danger where he is presently held. Again, a nurse at the hospital, or two nurses I think, although it was very difficult to hear them, also indicated that that history was not true. [2] It is on the basis of that history that he seeks to make the application ex parte, that is to say in the absence of each and every one of the nominated defendants. 5. Section 71 of the Supreme Court Act 1970 (NSW) provides for the application for habeas corpus and it goes on to say that there are a number of limitations on such applications: see s 71(2) [3] . I am extremely reluctant to lock Mr Williams out of making his application [by finally determining the application on the material he has elicited over the last hour and a half]. 6. When Mr Williams first came on to the telephone link he indicated that he did not expect that he would be heard tonight, he thought that he would be heard sometime next week. [This is not what was communicated to my Associate. She was told that the plaintiff may not survive until Monday.] Realistically, for this case to be heard properly and with any degree of justice it needs to happen at a time when the Court is sitting normally and there can be a proper link and that the other parties who have an interest in the litigation can be heard. 7. I am not satisfied that this is an appropriate matter to proceed with ex parte. However I am satisfied that it should be heard urgently if possible and, [perhaps] by the Duty Judge in the next week or so. 8. I propose to refuse to make the interlocutory or interim orders proposed by Mr Williams simply because I do not have both sides of this history and, wherever I have it, it is in contradiction to what I am being told by Mr Williams. It would be irresponsible of me to make the orders that are sought, which essentially require those who are currently subject to binding orders under the Mental Health Act to release him, first to come to Court and then, if he was successful, to be released into the community so that he can resume his practice. It may ultimately be that those submissions and applications are well-founded but on the material before me, I would simply be guessing. 9. What I propose to do is to make the following orders, directions and recommendations: 1. The summons and supporting evidence be filed and served by Tuesday 3 September (that is, in three days' time). 2. The matter is listed first before the Registrar on Wednesday 4 September 2019 for referral to the Duty Judge. 3. Direct the Registrar of the Supreme Court to arrange for either a telephone link or an AVL link to enable the matter to proceed on Wednesday. 4. Direct those with responsibility for Mr William's custody at the Prince of Wales Hospital to facilitate the transmission of his documentation to the Supreme Court Registry in accordance with the first order (that is, by Tuesday 3 September 2019). 5. Direct that a copy of these orders and this judgment be provided to the nominated defendants and to the people presently in charge of Mr William's custody. 1. I can indicate that a failure to allow Mr Williams to transmit the documents will likely be considered to be an act of contempt by the Judges of this Court. Mr Williams must be permitted to provide the documentation to the Court on or before Tuesday. The matter then will be heard, hopefully by the Duty Judge, on Wednesday. 2. Otherwise the interlocutory orders in the application made tonight are refused. 3. The following discussion then ensued: "WILLIAMS: May it please the Court. Justice Hamill, might I add, or seek, one further order and that is that I am granted permission to the facilities to prepare the application as well as the transmission. HIS HONOUR: I don't know what that means in practical – WILLIAMS: That means access to my iPad so I can print the documents and prepare the documents in proper typed word processing documents. At the moment they're in handwritten form and they need amendment. HIS HONOUR: Nurse Rex, are you there? NURSE REX: Yes I am. HIS HONOUR: Is that possible? NURSE REX: That would have to be worked out with the actual ward NUM – the Nursing Unit Manager – in the morning when they arrive. We don't normally on this ward allow telephones, tablets or computers at all because of the ability to take photos of other people in the ward and I don't suggest that Jason's going to do that but you're not allowed to record in here, you're not allowed to do any of that stuff. WILLIAMS: Your Honour, in the last two weeks I was given one and half hours to access my laptop. These documents have already been drafted in that one and a half hours. I was taken to another room, given my iPad and laptop and there I drafted them but before I could finish them they took them off me and they wouldn't allow me to file the documents. I've now had to sit down and do it by hand but they are nowhere near complete real documents by hand. I also have the – HIS HONOUR: Sorry, just stop for a minute. Did you say that you had already typed them out and they're on your laptop? WILLIAMS: That's right. HIS HONOUR: Alright, well I recommend that the staff at the Prince of Wales hospital facilitate that Mr Williams have access to his laptop for the limited purpose of obtaining those documents to allow their transmission to the Supreme Court registry. WILLIAMS: They need some settling, your Honour but not much. HIS HONOUR: Well, that will be between you and them but I don't know that I can do much more in terms of encouraging them. I have essentially threatened them with contempt if they don't assist you to do this. WILLIAMS: I thank you very much for that, your Honour. HIS HONOUR: I think that's all I can do. Nurse Rex – thank you for your assistance. I have made those orders. Are you able to ensure that they are communicated to the powers that need to know about them? NURSE REX: Yes I can. HIS HONOUR: Alright so what I'm essentially doing is ensuring that there be no difficulty for Mr Williams in getting these documents to the Judge who will hear the matter on Wednesday. NURSE REX: That's fine. WILLIAMS: May it please the Court. HIS HONOUR: Now – WILLIAMS: Thank you very much Justice Hamill and thank you very much to your Associate. HIS HONOUR: Yes, she's terrific. Now the one thing I would say Mr Williams is that you are going to probably be before the Duty Judge and – WILLIAMS: Your Honour, I am thankful to be before any judge. HIS HONOUR: Just listen. The point I'm making is that the Duty Judge will not hear you at length. WILLIAMS: I understand that. HIS HONOUR: You may have an hour to speak. WILLIAMS: I understand that. HIS HONOUR: Alright. Well as long as you understand it. It's all being recorded. Alright, well thank you. Good luck. WILLIAMS: So Tuesday, 3 September the documents need to be transmitted and I'm heard by the Registrar 4 September – is that right? HIS HONOUR: Filed and served, that's right. Now I don't know – well I do know – my Associate earlier today, several hours ago, suggested that you make contact with the Mental Health Advocacy Service at Burwood Legal Aid – WILLIAMS: Your Honour they appeared 10 minutes before the Tribunal, did nothing, said nothing and did nothing before the Tribunal hearing – HIS HONOUR: Alright. You can lead a horse to water. I think you would be very well served to speak to them again. Anyway – WILLIAMS: I'll do my very best. These are harrowing circumstances and being held incommunicado is not easy. HIS HONOUR: I'll leave you with it. Good luck. NURSE REX: Justice Hamill – WILLIAMS: Thank you Justice Hamill, thank you. May it please the Court. NURSE REX: Can we give clarification? WILLIAMS: Don't talk over him. HIS HONOUR: Sure. NURSE REX: It's from Denise. NURSE DENISE: Judge, just to clarify what I meant is that – he – the threats – I wasn't disputing the threats that he was making, just that in the last 24 hours he has been sleeping in an area, by himself and then freely coming into the six bed area where other people – WILLIAMS: Sorry your Honour she thinks she's on Judge Judy – NURSE DENISE: - one of the same people whom he did say made that threat is with him and [untranscribable]. But I believe that the threats were made. HIS HONOUR: The threats were made, what I was asking you and your colleague to give me an opinion on is whether he was in physical danger. NURSE DENISE: Well no, yeah that's what I'm saying. He's in this area with one other person – WILLIAMS: Two others. There's two other people here. Your Honour, but can we, may it please the Court, can you wind this up. She thinks she's on Judge Judy. HIS HONOUR: OK well I'm now going to adjourn the Court, which is another way of winding it up. Goodbye. WILLIAMS: Thank you, your Honour." 1. The telephone link was then cut, the Court adjourned. ********** Endnotes 1. Words in square brackets were added in the course of revising this judgment. 2. [As the transcript that follows this judgment shows, I misheard the nurses. What one of the nurses said was that some threat was made but that Mr Williams subsequently was voluntarily and freely in the same physical vicinity as the person or persons concerned.] 3. Section 71(2) provides "Where an application for a writ of habeas corpus has been made in respect of any person, no application for a writ of habeas corpus shall again be made in respect of that person on the same grounds, whether to the same Judge or to any other Judge or to the Court of Appeal, unless fresh evidence is adduced in support of the application." 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: 19 April 2024