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I have a question about mental health law in the state of

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New South Wales, Australia. I...
I have a question about mental health law in the state of New South Wales, Australia. I am presently the respondent in a case before the Mental Health Review Tribunal where a Community Treatment Order is being sought. I wish to know am I able to bring an action in the Supreme Court asking for a permanent stay on the grounds I have reached the conclusion that these proceedings amount to an abuse of process? If so, I would like a bit of an idea how to get started. What division would hear this case, civil or administrative? I know I will need to file an affidavit. But what other forms(s) would be required?
Submitted: 1 year ago.Category: Australia Law
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6/8/2016
Solicitor: Leon, Solicitor replied 1 year ago
Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 45,109
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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Good Morning

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

You have to go through the process and put on your affidavit at the Tribunal.

These matters rely on medical evidence. Any lay evidence is not given much weight. So if you can get a doctor to provide evidence that you are mentally fit this would assist.

Once they hand down a decision if you feel there is an error of law then you can appeal to the Supreme Court.

You should not be doing this on your own. You need a Solicitor that understands the process and also the rules of evidence.

The law society of NSW can refer you.

Their website is as follows:

https://www.lawsociety.com.au

I hope this makes sense and is of assistance If there is nothing further

thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards

Leon

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Customer reply replied 1 year ago
Dear Leon,I realise there are avenues of appeal after the tribunal adjudicates the matter. However what I am asking is this. If I feel their case is plainly and forseeably doomed to fail for example. In theory would I be able to bring an action in the administrative division of the supreme court asking for a permanent stay on the grounds the application is an abuse of process at this stage?
Solicitor: Leon, Solicitor replied 1 year ago

Good Afternoon

An application for abuse of process or vexatious litigation is very hard to be successful in.

If you want a stay, then the appeal is the only way. But to have it declared an abuse of process is very hard.

They will rely on medical evidence and you have to counter that.

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Customer reply replied 1 year ago
Dear Leon,I do thank you for your reply. However I wasn't interested in knowing what the odds are. I wanted to know something that I don't already know instead. If you really want me to pay for this advice. I'll need you to go into a bit more detail please about what I can do about abuse of process and vexatious litigation at this stage and how I can do it. The issue is they have no evidence I have been and am refusing treatment. My case manager has even more or less intimated to me her heart is not in this one. As if someone else with a bit of a gripe with me higher up in the food chain is just trying their luck wanting to inconvenience me. Surely there is some sort of an action we can bring in the supreme court that would meanwhile stay the hearing of the application proper by the tribunal? The thing is I live in Queensland now and the application is being heard in New South Wales. And all the while their knowledge of my health situtation gets more amd more dated with each passing day they cannot call me in for another face to face review.I get the impression it wouldn't take very much and these people will fold like a cheap suit and put this one to bed. I want to see some more aggesssion from you Leon!
Customer reply replied 1 year ago
the other things I might need to know are these. Can I require the applicant to disclose their case to me including any written submissions they intend to rely upon? And can the respondent legally require any person to produce and deliver evidence to the tribunal or themselves attend for the purpose of giving live testimony?
Solicitor: Leon, Solicitor replied 1 year ago

Good Afternoon

If they have no evidence then you should be able to have the matter thrown out of court.

You can file a notice of motion and seek that the application be struck out on the basis of no evidence. You though should have evidence that backs up your version of the facts. If they say you suffer from a mental illness they have to provide medical evidence. You have to provide evidence to the contrary also from a doctor.

If you are unhappy with the Tribunal decision you can appeal to the Supreme Court for it to be set aside.

I am not sure why the action ids in NSW if you are in QLD. But in NSW you appeal to the Supreme Court from NCAT.

I am not able to advise you in too much detail. I can only provide relevant information. I do not have the case or the application before me and this is not the forum for that.

If they file an application it has to be set out so you know what they are saying and you know what you have to respond to. If they say nothing of substance you seek to have ti struck out.

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Leon
Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 45,109
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Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)

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