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Saeed's case is now before the High Court of Australia, in the latest thrust to expose the structural abuse of people in mental hospitals, and the lack of accountability to standards of respect.

The High Court has to consider whether there is a valid Public Interest to protect individuals like Saeed who come under the jurisdiction of the NSW Mental Health Act, and whether the UN Convention of the Rights of People with Disabilities should be considered. Additionally whether the NSW Attorney General should be permitted to claim court costs based upon an exposed lie.

Setting an alarming precedent for carers

In this saga taking the first appeal from the NSW Mental Health Review Tribunal to the Supreme Court, we have been left to do the work ourselves at the bidding of the person affected - Saeed Dezfouli. Despite clear evidence that the forcible medication of patients is damaging, and specifically in the case of Saeed is likely to have caused his diabetes and other effects, the health and legal systems have sat and watched. The Tribunal has refused to use its legal obligation to control the hospital, and the Supreme Court left it to the Tribunal. Justice Action accepts its obligation as Primary Carer to defend Saeed's rights.

First, it was our submission that these proceedings will determine a right that will influence a major sector of the community. A costs order against us will set a precedent that will deter individuals from bringing forward actions that may have a significant public interest at the risk of bearing substantial costs. This would lead to an undesirable outcome on the access to justice and even quality of life of mental health litigants and minors.

While the task of the court is to administer social justice (CJ Street in F Hannan Pty Ltd v Electricity Commission of NSW No 3 (1983)), there is a risk that social justice cannot be administered by burdening the applicant in the current case. Rather, it would be a disincentive for tutors undertaking public services to be pursued for costs. It was relied upon by Their Honours in Dey Victorian Railways Commissioners [1949] HCA 1; CLR 62 at 113 that ‘one of the purposes of appointing a tutor is to have a person on the record who is personally liable for costs’.  However, we argued that such view of a tutor serving as a ‘backup’ for paying costs should not be a reason for the appointment of a tutor at all in the first place. On the contrary, tutors should be appointed for the purpose of assisting vulnerable parties access justice.  

 

Public Interest

Second, public interest litigation is also one of the justifications of a departure from the ordinary rules regarding Costs (Oshlack v Richmond River Council (1998) 193 CLR 72 at 54). This issue was actually acknowledged by the Australian Law Reform Commission in its 1995 Report ‘Costs Shifting - Who Pays for Litigation’ where it recommended that statutory provision for public interest costs orders have to be made by federal courts and tribunals. Consequently, it sought in effect to define public interest by setting out conditions for the making of such orders. It was suggested that the court or tribunal must be satisfied that ‘the proceedings will determine, enforce or clarify an important right or obligation affecting the community or a significant sector of the community.’ (Ruddock v Vadarlis (2001) FCA 1329 at 20).

The initial Saeed case concerns the interest of the ‘public’ in a sense that it raises significant issues for a large portion of the population who come into contact with the Mental Health Act. It has has also raised many significant issues relevant to future patients whose living conditions and quality of life are determined under this legislation. Thus, the awarding of costs in these proceedings will merely serve a punitive function in relation to Justice Action for bringing forward the proceedings.

No set formula for determining public interest

Whether the special leave of appeal will be granted is still uncertain. Nevertheless, it was decided by Clenan J in Jacomb v Australian Municipal Administrative Clerical & Services Union that there is no set formula for determining whether a case is brought in the public interest. In that case, the Cost Order was reduced by 25% even though there was a self-interest element of the applicant subservient to the public interest argument. On the contrary, in our case here, Justice Action has no personal interest in the entire proceedings or the outcome of the case.

It was also stated in the case of Jacomb that:

‘While it remains undisturbed, the determination is one which will have the effect of governing the position of persons who find themselves in a similar position to the applicant.

In that sense the case can be genuinely described as a test case with some element of public interest.

It may be of assistance to the respondent in respect of future rules and may be of assistance to similar bodies in similar circumstances.’

We are expecting that the special leave to appeal is granted. Further details will be posted on our website once updates are available.

 

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Justice Action
Trades Hall, Level 2, Suite 204
4 Goulburn Street
Sydney NSW 2000, Australia

T 02 9283 0123
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E ja@justiceaction.org.au
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