Cost Penalty Against Tribunal Appeal

Due to a request from the Mental Health Review Tribunal, the Justice Action team was forced to remove the names of persons related to the proceedings. Our plaintiff’s name has been replaced with ‘A’. This occurs despite the clear wishes of A to have his name publicised and the basic entitlement to freely and publicly criticise the abuses of justice done to him.

On Thursday, 27 July 2013, the Mental Health Review Tribunal chaired by an ex-Supreme Court Justice conducted a hearing for the case of A with A’s psychiatrists. Representing for the hospital was the head of the treating team, a nurse, a registrar and others. Solicitor Peter O’Brien and 2 members of Justice Action were also there to support A. Justice Action’s publication of Mad in Australia was distributed to the hearing’s attendees.


Media release December 23, 2011

Attorney-General relents in attack on patient    

“Justice Action welcomes the Attorney General’s statement yesterday that he will reconsider his demand for $36,000 in court costs from a mental health patient and his primary carer who challenged his treatment,” said JA Coordinator Brett Collins.

The Greens MP David Shoebridge said in his media briefing it is a “case of genuine public interest, testing the Supreme Court’s ability to review a decision of the mental health tribunal that was allowing a detainee to be forcibly injected against his will.”  

If enforced, it would send a “chilling message to other public interest advocates” said Mr Shoebridge.

“This first appeal under the new law raises many significant questions about human rights and respect for patients. This patient is also awaiting a Supreme Court decision on whether he can use his own name to criticise his treatment. He says it is dehumanising to refuse him his identity. This follows another case where the Health Department had a Supreme Court declaration against it and had to pay $5000 for refusing to distribute electoral material,” said Mr Collins.

“The original decision to demand the $36,000 is totally consistent with the Government’s bullying of the mentally ill and vulnerable,” said Mr Collins.

“With all the hype about the number of new beds and the need for improved community mental health services, we seem to have forgotten that forensic patients are very much part of the mental health community. They need to have the same opportunities afforded to other groups to receive a level of care at least equal to other citizens in our society,” said Douglas Holmes spokesperson for the NSW Flames Group.




In November 2010, Saeed Dezfouli brought proceedings against the Mental Health Review Tribunal in the Supreme Court regarding a review of A's treatment.  The appeal was dismissed and Justice Action as his primary carer was ordered to pay more than $36000 in costs.



Judgment Date: 26 November 2010

The application


At the end of last year, 'A', through his tutor Brett Collins, brought proceedings against the Mental Health Review Tribunal (hereafter “MHRT”).


In his claim for relief, 'A' sought the following orders from the Supreme Court:


  1. Leave to appeal from the whole of the MHRT’s decision made after a review hearing on the 10th of February 2010.

The decision was a refusal to change A’s then-current arrangements for his care, treatment and detention at the Long Bay Prison Hospital.

It was submitted that the Tribunal had erred in its decision in that it:

    • Failed to exercise its jurisdiction under s 36 of the Mental Health Act 2007;
    • Erred in its ruling that the changes sought by 'A' were outside its ambit of care, detention and treatment as provided for in s 47 of the Mental Health (Forensic Provisions Act) 1990.
    • Erred in that it failed to afford to 'A's' procedural fairness in refusing to grant an adjournment of the proceedings pursuant to s 36 of the Mental Health Act 2007 to allow time for documents to be furnished to it.
    • Erred in that it failed to exercise its discretion by failing to consider at all relevant documents furnished by 'A'.
  1. That the following changes be made to the current arrangements for his care, treatment and detention:
    • That his detention at Long Bay Prison Hospital be terminated and he be transferred for detention in a less restrictive facility.
    • That he be allowed escorted day and weekend leave in the care of his Primary Carer.
    • That psychiatric treatment from his then-current psychiatrist be replaced with treatment from another elected psychiatrist.
    • That his compulsory medication by injection cease.
    • That he be given access for educational purposes to a computer donated to the Hospital for his use by the students of the University of NSW.
    • That he be allowed visitors including support workers from Justice Action.



The determination

On the 23rd of November 2010, Justice Johnson of the Supreme Court of NSW refused A’s application for leave to appeal under s 77A(1) Mental Health (Forensic Provisions) Act 1990 (hereafter “MHFP Act”). 

Seeing as 'A' brought the proceedings through his tutor, Brett Collins, an order of costs was made against Mr. Collins for a sum of $36,148.17.

The reasons for the determination are as follows:

  1. There was no “practical utility” in the Supreme Court granting leave for an appeal.
  2. There was “ no live legal issue” present in the case.
  3. There was “no good reason” why a costs order against Mr. Collins should not be made.

No practical utility


Justice Johnson submitted that there was no practical utility in the Supreme Court entertaining grounds of appeal concerning the non-adjournment of a review hearing that took place in February 2010, when a further review hearing may (and must) proceed before the MHRT without any order of the Court. 

His Honour stated that the Court should act cautiously in considering whether leave to appeal ought to be granted where the appeal seeks to challenge practical and clinical aspects of the care, treatment and detention of a forensic patient. As a specialist tribunal with its own medical knowledge, Justice Johnson stated that the MHRT was best qualified to decide on the issues put forward by 'A'.

Furthermore, Justice Johnson deemed it unnecessary to form a view as to the merits of the complaints concerning the Tribunal proceeding in February 2010. His Honour submitted that there would be a chance for 'A' to put forward any material he sees fit before the Tribunal at a review hearing, which was confirmed to take place in September 2010.

His Honour also asserted that Mr. Collins’ submission that the leave to appeal should be granted to allow issues and questions of general interest to be ventilated in court was not an appropriate purpose for the avenue of appeal to be taken under s 77(1) MHFP Act.  This was based on the grounds that a granting of leave in such circumstances could open the floodgates to future appeals that aim to conduct a “type of wide-ranging inquiry” into a particular patient’s case and complaints.  Rather, s 77(1) is only available to a forensic patient who seeks leave to appeal from any determination of the MHRT in a proceeding to which he or she is a party.

Indeed, his Honour was of the opinion that 'A' was attempting to bypass the MHRT altogether by seeking orders from the Court of the type set out above.

No live legal issue


Justice Johnson agreed with the MHRT that there was no live legal issue in the proceeding. His Honour submitted that it was open to the Tribunal to make orders under s 47(1) MHFP Act of the type sought by 'A' in relation to his continued care, treatment or detention in a mental health facility.  Thus, this was a matter for the Tribunal (and not for the Supreme Court) to determine.

Our response:

Justice Action strongly contests these submissions made by the Court. We assert that the Tribunal denied 'A' procedural fairness given the fact that at his previous 14 review hearings, his request for an independent assessment by a qualified psychiatrist was repeatedly refused and his submissions of viable evidence continually disregarded.

Furthermore, we argue that the application for leave to the Supreme Court was a necessary step in achieving justice for 'A' because of MHRT’s mistreatment of his case. This is evidenced by the Tribunal’s refusal to supply 'A' with reasons for its decision following the review hearing in February 2010.  It was for this reason that Mr. Collins’ application for legal aid failed, which in turn led to the consecutive withdrawals of A’s legal representation (the impact of which is discussed below).


No good reason against a costs order

Justice Johnson agreed with the MHRT and made an order costs against A’s tutor, Brett Collins for the amount of $36,148.17. These costs were incurred by MHRT over the course of the proceedings and covered the fees of three solicitors and one paralegal. These persons charged an hourly rate ranging from $181 to $361.80 per hour.

Distinguishing these proceedings from the case of Adams By Her Next Friend O’Grady v State of New South Wales, his Honour believed it not to be a “travesty of justice if the State of New South Wales were to pursue the tutor for costs separately and distinctly from the Plaintiff.”

This belief was justified on the basis that three different solicitors had represented 'A' during the course of the proceedings, with instructions to the last solicitor being withdrawn by Mr. Collins.  It was asserted that Mr. Collins erred in pressing on with the proceedings, in circumstances where 'A' has “no reasonable prospect of obtaining leave to appeal this case.”

Our response:

Firstly, we argue that Justice Johnson made a factual mistake in his reasons for making an order of costs. Mr. Collins has evidence that to no fault of his own, A’s last solicitor voluntarily withdrew his representation. In fact, all three A’s last solicitor voluntarily withdrew his representation. In fact, all three firms failed the provide substantial assistance to the case and their eventual departures left Mr. Dezfouli and Mr. Collins in want of strong legal support.


The evidence is as follows:


  • Due to the failure of the MHRT to release its decision and reasons following the review hearing in February 2010, the first set of solicitors chose to withdraw their legal representation. They stated on Friday 28th of May 2010 that: “We cannot and will not be appearing on Monday at the court to enter into hearing proceedings without counsel’s opinion and funding for counsel.”
  • The second set of solicitors withdrew their legal representation in an email dated Thursday 2nd September 2010, stating “…we have no alternative than to cease acting if his [A’s] instructions are that he wishes to proceed with the Supreme Court action.”
  • Lastly, on Tuesday 16th of September 2010, A's barrister, Paul Bodisco, withdrew his legal support on the basis that he was “double booked” and thus, unable to work on A’s case.


Additionally, while it is true that Mr. Collins pressed the proceedings to their finality, there was a valid reason behind this: he was simply acting in the best interests of 'A', a person who has been continually mistreated and ignored by the institutions of this State. To allow the Crown Solicitors to recover costs against Mr. Collins, who offered unwavering support to 'A' when others deserted him, grossly compromises the integrity of the criminal justice system.


Furthermore, rewarding costs against Mr. Collins, and indirectly Justice Action, sends an alarming message to other Primary Carers and supporters of forensic patients. It suggests that community-minded people who act out of their own goodwill can be held liable for supporting a patient’s fight for their rights to be recognized. Moreover, it would be unrealistic and unfair to expect a not-for-profit organization to cover the significant costs that are being demanded here.


Our submission


We ask that this unfair and unjust order for costs against Mr. Collins be overturned and that the real issue, being A's mistreatment in our forensic hospitals, be addressed.


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