SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Leave to Appeal to the Full Court)
BC v THE PUBLIC ADVOCATE & ORS (NO 4)
[2019] SASC 57
Judgment of The Honourable Justice Parker
12 April 2019
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - HABEAS CORPUS
This is an application for permission to appeal to the Full Court under s 71(1)(a) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (the SACAT Act) and r 289 of the Supreme Court Civil Rules 2006 (SA) against a decision of a Presidential Member of the South Australian Civil and Administrative Tribunal (SACAT).
The applicant seeks that the Full Court set aside the decisions to remit proceedings for further hearing within SACAT and appoint the Public Advocate as his full guardian on an interim basis pending resolution of those proceedings, and also seeks the remedy of habeas corpus.
Held, per Parker J, refusing permission to appeal:
1. Appropriate deference must be given to the role and expertise of SACAT in deciding matters within its specialist jurisdiction so that some restraint is exercised when considering applications for permission to appeal from SACAT (at [75]-[78]).
2. It is not reasonably arguable that the decision to remit was unreasonable, illogical or irrational (at [80]-[81]).
3. The interests of justice do not support the grant of permission to appeal against the decision to remit, nor is the decision a matter of such significance that it warrants consideration by the Full Court (at [82]).
4. The contention that the decision to remit has enveloped the applicant in an “internal review loop” is premature (at [83]-[85]).
5. It is not reasonably arguable that the principles in ss 5(a) and 5(d) of the Guardianship and Administration Act 1993 (SA) (the GA Act) were not considered and observed (at [87]).
6. It is reasonably arguable that the criteria for determining suitability for appointment as a guardian in s 50 of the GA Act were not properly applied (at [88]-[89]).
7. It is not reasonably arguable that SACAT erred in law by failing to take into account the unwillingness of the Public Advocate to participate in mediation (at [91]-[95]).
8. The validity of the now expired interim orders is not an appropriate matter for consideration by the Full Court (at [96]).
9. In the absence of appropriate factual findings, the Full Court should not be called upon to decide questions of law (at [99]).
10. Although the application for habeas corpus is not subject to any permission requirement, its incorporation in the broader application does not necessitate the grant of permission to appeal (at [100]).
11. In cases where a summary examination by this Court does not detect any clear error or irregularity in the decision by SACAT to make an order under s 32 of the GA Act, it is not appropriate for this…
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- Case
- [2019] SASC 57
- Decision Date
CaseChat Overview and Summary
The court found that the decision to remit was not reasonably arguable as being unreasonable, illogical, or irrational. Ms Rugless had recognised that she had the power to decide the matter at the internal review stage and could receive additional evidence. Given the deficiencies in the decision-making process at first instance and the substantial volume of further and fresh evidence received since, Ms Rugless considered that she would effectively be required to conduct a de novo hearing. She concluded that scrutiny of the additional evidence would be better conducted using the inquisitorial approach followed by SACAT at first instance rather than conducting a merits review required on an internal review. The court also found that the interests of justice did not support the grant of permission to appeal against the decision of Ms Rugless to remit the matter, as the decision was of an interlocutory nature.
In summary, the court denied the applicant permission to appeal the decision of Ms Rugless to remit the matter for further hearing in the ordinary jurisdiction of SACAT. The decision was not found to be unreasonable, illogical, or irrational, nor did it involve errors of law. The court found that the interests of justice did not support the grant of permission to appeal, as the decision was of an interlocutory nature.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The contentions advanced by the applicant and the third respondent in seeking permission to appeal against the decision made by Ms Rugless focus upon two aspects of her decision. They are the remittal for further hearing after setting aside the orders made at first instance, and the decision to appoint the Public Advocate as interim guardian and to confer special powers upon her so as to authorise the detention of the applicant pending a final decision. It is contended that the decisions made by Ms Rugless are unreasonable, illogical or irrational and also involve errors of law. Consideration of the decision to remit While minds may differ as to the appropriateness of the decision to remit, I do not consider it to be reasonably arguable that Ms Rugless’ decision was unreasonable, illogical or irrational. Ms Rugless specifically recognised that she had power to decide the matter at the internal review stage and could receive additional evidence. She further observed that because the decision-making process at first instance was so deficient, and also because of the volume of further and fresh evidence received since the making of that decision, she would effectively be required to conduct a de novo hearing. She considered that scrutiny of the additional evidence would be better conducted using the inquisitorial approach followed by SACAT at first instance rather than by conducting the merits review required on an internal review. As the Acting Deputy President of SACAT, Ms Rugless was entitled to use her knowledge of practice and procedure in that jurisdiction and the available resources to determine whether a remittal was appropriate or whether she should proceed to conduct what would be tantamount to a further hearing at first instance, albeit conducted in the internal review jurisdiction. In making the decision to remit, Ms Rugless took steps to ensure that the matter be heard promptly and that a member visit the applicant for the purpose of taking evidence about his wishes. I also do not consider that the interests of justice support the grant of permission to appeal against the decision of Ms Rugless to remit the matter rather than conduct a further hearing herself in light of the additional evidence and submissions. Having set aside the orders made at first instance, the decision to remit and to conduct a further hearing did not finally decide the rights of the applicant. In that sense the decision was of an interlocutory nature. That counts very strongly against the grant of permission. For the same reason, I do not consider that the correctness of the decision to remit is a matter of such significance that it warrants consideration by the Full Court. I turn to the suggestion that the decision to remit has enveloped the applicant in an “internal review loop”. The point made by counsel is that the decision made upon remittal may be subject to internal review under s 70 of the SACAT Act. An appeal could not be pursued in this Court until the internal review process had been completed. Furthermore, the Court would be most unlikely to grant a discretionary judicial review remedy when the right to internal review had not been exercised. Thus, it is suggested that the matter might bounce back and forwards between the different levels in SACAT without ever being subject to scrutiny by this Court.