NSW v TD

(2013) 83 NSWLR 566; [2013] NSWCA 32

NSW Court of Appeal

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Interrogate

Catchwords

1. ADMINISTRATIVE LAW — habeas corpus — plaintiff detained in a prison — court order authorised detention in a hospital — whether habeas corpus available to plaintiff — relationship between habeas corpus and false imprisonment — Mental Health (Criminal Procedure) Act 1990 (NSW), ss 24 and 27
1. MENTAL HEALTH — District Court nominated "limiting term" in respect of plaintiff — District Court ordered that plaintiff be detained in a hospital — plaintiff detained in a prison — whether person has residual liberty after nomination of limiting term — whether court has discretion to decline to make order with respect to custody of person after nominating limiting term — discussion of R v AN (No 2) [2006] NSWCCA 218; 66 NSWLR 523 — Mental Health (Criminal Procedure) Act 1990 (NSW), ss 24 and 27
1. TORT — false imprisonment — plaintiff detained in a prison — court order authorised detention in a hospital — whether plaintiff had residual liberty to be vindicated by tort of false imprisonment — relationship between habeas corpus and false imprisonment — whether false imprisonment available where plaintiff detained in the wrong place — Mental Health (Criminal Procedure) Act 1990 (NSW), ss 24 and 27

Quick Take

A person lawfully deprived of liberty who is detained in a place not authorised by the relevant court order or statute has a claim in false imprisonment. The distinction between the 'nature' and 'conditions' of imprisonment is maintained: detention in an unauthorised type of place (e.g., a prison instead of a hospital) goes to the nature of imprisonment and grounds a false imprisonment claim, whereas complaints about treatment within an authorised place of detention go only to conditions. The word 'may' in s 24(1)(b) and s 27 of the Mental Health (Criminal Procedure) Act 1990 (NSW) confers power to make orders as to the terms and place of custody, but does not confer a discretion to decline to order detention at all.