BC v The Public Advocate (No 2) - [2019] SASC 54

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
BC v THE PUBLIC ADVOCATE & ORS (No 2)
[2019] SASC 54
Reasons for Ruling of The Honourable Justice Stanley
9 April 2019
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY
The Court found the plaintiff had been detained without lawful authorisation and ordered that his detention be terminated. The first defendant applied for a stay of the order to make an urgent application to the South Australian Civil and Administrative Tribunal for orders authorising the continued detention of the plaintiff.
The Court granted the application for a stay. These are its reasons for doing so.
Guardianship and Administration Act 1993 (SA) s 5, s 29, s 31, s 32; Supreme Court Act (SA) s 17; Supreme Court Civil Rules 2006 (SA) r 196, r 198, r 199, referred to.

BC v THE PUBLIC ADVOCATE & ORS (No 2)
[2019] SASC 54

STANLEY J: On 18 December 2018 I granted a short stay of orders made by the Court. These are my reasons for doing so. In this matter I heard an application for judicial review and an application pursuant to SCR 196 for an order that the plaintiff be produced before the Court so the Court could inquire as to whether he was being held in unlawful custody or subjected to unlawful restraint. The Court conducted that inquiry and on 18 December 2018 published reasons for finding that the plaintiff was unlawfully detained. At that time I intimated that I intended to make an order pursuant to SCR 198(2)(a) that the plaintiff’s detention be terminated.
It is necessary to explain the background to these orders.
The Public Advocate had been appointed the plaintiff’s guardian for limited purposes, namely, accommodation and lifestyle, by an order of SACAT made on 27 September 2018.
In purported reliance upon that appointment the Public Advocate directed that the plaintiff was to reside at the [address suppressed] (the Facility) in a secure dementia unit. The direction given by the Public Advocate for the plaintiff to reside in that secure Facility was not made in reliance upon the special powers provided for in s 32 of the Guardianship and Administration Act 1993 (SA) (the Act).
I found that the plaintiff had been detained by reason of the acts of the Public Advocate and the staff of the Facility. I held that as his detention had not been authorised pursuant to s 32 of the Act, it was unlawful.
Shortly after the publication of my reasons the Public Advocate applied for a stay of the orders I proposed to make. The Public Advocate advised that an urgent hearing had been listed before SACAT about three hours later.
The stay was sought to enable the Public Advocate to make an urgent application to SACAT for orders pursuant to s 32 in respect of the plaintiff.
I made the following orders:
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] SASC 54
Decision Date: 9 April 2019

CaseChat Overview and Summary

In the case of BC v The Public Advocate (No 2), the plaintiff sought judicial review of his detention at a secure dementia unit. The Public Advocate, acting as the plaintiff’s guardian, had directed that the plaintiff reside in the unit without lawful authorisation, leading to a declaration of unlawful detention by the Supreme Court of South Australia. The Public Advocate then applied for a stay of the Court’s orders to allow an urgent application to the South Australian Civil and Administrative Tribunal (SACAT) for lawful detention orders. Justice Stanley granted the stay, finding that the plaintiff’s unlawful detention could be remedied by SACAT if the appropriate order was made under the Guardianship and Administration Act 1993 (SA).

The legal issues before the Court included whether the plaintiff's detention was lawful, the extent of the Public Advocate's powers under the Act, and the appropriate remedy for the plaintiff’s unlawful detention. Justice Stanley held that the plaintiff’s detention was unlawful because it was not authorised by SACAT under section 32 of the Act, and the Public Advocate did not have the power to direct his detention without such authorisation. The Court also considered the most expeditious course for the plaintiff’s care and protection, which involved allowing the Public Advocate to apply to SACAT for lawful detention orders.

Justice Stanley granted the stay of the orders to terminate the plaintiff’s detention, finding that it was in the best interest of the plaintiff to allow the Public Advocate to urgently seek lawful detention orders from SACAT. The stay was intended as a short-term measure to address the immediate situation, and it was noted that other disputes regarding the plaintiff’s residence were matters for SACAT. The Court also declined to order the plaintiff's release to a private residence, given the urgency and the Public Advocate's duty to provide for the plaintiff's care and welfare.

In summary, the Supreme Court of South Australia granted a stay of its order to terminate the plaintiff’s unlawful detention, to allow the Public Advocate to urgently seek lawful detention orders from SACAT. The Court emphasised the importance of ensuring the plaintiff's care and protection, and the need for the Public Advocate to address the immediate circumstances through the appropriate statutory process.

Orders