RIDCA Central (Regional Intellectual Disability Care Agency) v. VM

[2010] NZCA 213
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An order for compulsory care had been made for V.M. for two years, which was extended for an additional two years under s 85 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (“IDDCR Act”).  On appeal, the High Court found that the Family Court should not have granted the extension and quashed the compulsory care order.

The Regional Intellectual Disability Care Agency (“RIDCA”) sought leave to appeal the High Court’s decision, requesting a determination of the correct legal test for determining an application for an extension of a compulsory care order under s. 85 of the IDDCR Act. However, at the time of appeal the particular case with respect to V.M. was moot as the compulsory care order had expired without any further application for its extension.

The Court permitted a grant of leave for the case to be appealed. Firstly, the Court stated that cases which are moot can advance on appeal when they are of significant public importance, as was the case here. Secondly, the Court noted that cases are not decided in a vacuum, and V.M.’s concern that a decision would affect her future rights was not an unfounded concern. The Court also permitted an application for the Attorney General to intervene as it concluded there could be questions arising under §19 of the New Zealand Bill of Rights Act 1990.

The dissenting judge noted that if the Court granted leave for the appeal, the real problem would be that V.M. had no ability to challenge any adverse decision. The dissenting judge argued for the use of a declaratory judgment seeking leave to move the proceeding into the Court of Appeal of New Zealand. In that manner, V.M. could later apply to the Supreme Court for leave to appeal an adverse decision and not be placed in a less advantageous position than when the case was moot.

“Normally, cases which are moot should not advance on appeal. The Supreme Court did however note that in exceptional circumstances there may be an exception to the usual approach where the question arising, even in a moot case, is one of significant public importance which is likely to come before the Court again at some point.

We take the view, after having due regard to the strong cautionary note articulated by the Supreme Court that this is one of those rare cases of mootness where leave can and should properly be given.” Paragraphs 9-10

“The Judge’s second concern is that, somehow, something may be said which would prejudice the future interests of VM. Any judgment in this court can be articulated in such a way as to draw on the facts which gave rise to the instant case, so that the case is not decided in a vacuum, without at all going to possible future factual scenarios. Indeed, it would be quite wrong for this Court to speculate as to the future.” Paragraph 12.

“This case is of outstanding importance as the application for admission of the Attorney-General attests. It concerns how the courts of New Zealand should strike the difficult balance between protecting the community from conduct of those who, as sufferers from intellectual disability, are prone to committing low-level offending for which they are not legally responsible; and the human rights of such people.” Paragraph 16.

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