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 Court makes the following orders and declarations in the terms of the draft orders provided by the plaintiff as amended, signed and dated by his Honour on 18 December 2018:
1.A declaration that the plaintiff has been unlawfully detained at the [address suppressed] by reason of the decision of the first defendant on 5 October 2018.
2. A declaration that the decision of the first defendant made on 5 October 2018 that the plaintiff should live in the available room at the memory support unit of the [address suppressed] was ultra vires and void and of no effect.
3. A writ of habeas corpus issue in the terms of the draft writ provided by the plaintiff as amended, signed and dated by his Honour on 18 December 2018 as follows:
WHEREAS in this action on the above date the Court ordered that a Writ of Habeas Corpus issue directing you to facilitate the discharge of [BC] from the locked Memory Support Unit at the [address suppressed] which is [BC’s] current place of residence pursuant to the direction of the Office of the Public Advocate dated 5 October 2018 which direction has been found by this Court to be ultra vires NOW YOU ARE HEREBY COMMANDED AND DIRECTED to bring [BC] before the Court in accordance with the terms of the orders and declarations made this day, namely:
1. A declaration that the plaintiff has been unlawfully detained at [address suppressed] by reason of the decision of the first defendant on 5 October 2018; and
2. A declaration that the decision of the first defendant made on 5 October 2018 that the plaintiff should live in the available room at the memory supportu unit of [address suppressed] was ultra vires and void and of no effect.
4. Liberty to the parties to apply.
5. Orders 1, 2 and 3 above are stayed until 5.00pm on Tuesday, 18 December 2018.
6. The parties are to file written submissions in relation to costs as they intend to rely upon by close of business on Friday, 1 February 2019.
I granted a stay of those orders until 5:00 p.m. that day.
I found that the plaintiff was unlawfully detained. He was unlawfully detained because SACAT had not made any order for his detention pursuant to s 32 and the Public Advocate did not have power to direct that he be detained at the Facility. Nonetheless, it was implicit in my reasons that the plaintiff could have been lawfully detained at the Facility had the appropriate order been made by SACAT pursuant to s 32 of the Act.
I found that the plaintiff is a person who has a mental incapacity for the purposes of s 29 of the Act. Accordingly, he is a person in need of care and protection. That he had been unlawfully detained did not alter that fact.
I considered the fairest and most expeditious course to be adopted for his care and protection was to afford the Public Advocate, who remained and remains the plaintiff’s guardian for the limited purpose of accommodation and lifestyle, the opportunity to apply urgently to SACAT for an order pursuant to s 32 authorising the plaintiff’s detention at the Facility. Other disputes in relation to his residence at that Facility are matters that should be heard and determined by SACAT.
I declined to make an order sought by the fourth defendant and supported by the plaintiff that the plaintiff be released into the custody of the fourth defendant to reside at premises at 15B Rebecca Court, Tanunda, which had been leased by the fourth defendant to accommodate the plaintiff.
I declined to do so as there was an obvious urgency in making appropriate arrangements for the plaintiff’s care and protection given that I proposed to make a declaration that he was unlawfully detained at the Facility. The Public Advocate still had the duty to provide for the plaintiff’s care and welfare insofar as his accommodation is concerned. The Public Advocate was unfamiliar with the proposed premises at 15B Rebecca Court, Tanunda. It had not had the opportunity to assess the suitability of those premises. In any event, the Public Advocate was concerned that a basis upon which she had been appointed as the plaintiff’s guardian for limited purposes was because of conflict within the plaintiff’s family in relation to his care, protection and accommodation. If the Court had made an order that the plaintiff reside with or under the control of the fourth defendant, that conflict may have been exacerbated.
In any event, the stay that I ordered was for less than five hours.
It was an urgent and short-term measure intended to address the immediate circumstances that presented themselves upon an order being made pursuant to SCR 198(2)(a) that the plaintiff’s detention be terminated.