BC v The Public Advocate (No 4)

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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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Details
Case
[2019] SASC 57
Decision Date

CaseChat Overview and Summary

In the case of BC v The Public Advocate (No 4), the applicant, a 95-year-old man with dementia residing in an aged care facility, sought permission to appeal the decision of Ms Rugless, Acting Deputy President of the South Australian Civil and Administrative Tribunal (SACAT). The applicant, who has been the subject of multiple proceedings, challenged the decision to remit the matter for further hearing in the ordinary jurisdiction of SACAT following the setting aside of orders made at first instance by SACAT. The applicant's son, DC, and the Public Advocate were the other parties involved. The legal issues before the court were whether the decision to remit was unreasonable, illogical, or irrational and whether it involved errors of law.

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

Full text does not contain this section.

Background

Background to the litigation

The applicant submits that permission to appeal ought to be granted for the following reasons:1. The grounds of appeal are reasonably arguable.2. The issues raised on the appeal are matters of general importance, warranting the attention of the Full Court, as they concern:a. Consideration of the exercise of the powers of the Tribunal on an internal review of a decision of the Tribunal at first instance.b. consideration of the circumstances of the appointment of a guardian, including consideration of the principles to be applied in ss5 and 50 of the Guardianship and Administration Act 1993, andc. the exercise of powers to detain a protected person under s32 of the Guardianship and Administration Act 1993,likely to affect many parties involved in similar proceedings in the Tribunal.Background It is necessary to refer to the history of proceedings in SACAT and in this Court and also the circumstances of the applicant so as to place the application for permission in its proper context. The circumstances of the applicant The applicant is aged 95 years and currently resides at an aged care facility (the Facility). It is clear from the numerous medical reports admitted into evidence in SACAT and in this Court[3] that he suffers from dementia and various physical difficulties. [3] See BC v Public Advocate [2018] SASC 193; see also BC v Public Advocate (No 2) [2019] SASC 54; BC v Public Advocate (No 3) [2019] SASC 51. There is a marked division of opinion amongst immediate family members as to whether the applicant’s interests would be best served by him remaining in the Facility or moving to accommodation to be provided by the third respondent, his son DC, where he would be provided with 24 hour nursing care on an individual basis. The applicant’s wife, Be C, and five of his six children (i.e. all of his children apart from DC), consider that he should remain in the Facility. History of proceedings On 27 September 2018, SACAT made an order under s 29 of the GA Act that the applicant be placed under the limited guardianship of the Public Advocate in relation to matters of accommodation and lifestyle. On 5 October 2018, in the purported exercise of her appointment as limited guardian of the applicant, the Public Advocate directed that the applicant reside in the Facility and be confined there. Prior to the Public Advocate making that decision, the third respondent, (i.e. the applicant’s son, DC) applied on 30 September 2018 for internal review under s 70 of the SACAT Act of the orders made by SACAT on 27 September 2018. The present application for permission to appeal concerns the orders made by Acting Deputy President Rugless of SACAT with respect to the internal review application. I will say more about that shortly. The applicant applied for judicial review of the orders made by SACAT on 27 September 2018 and also sought a remedy by way of the writ of habeas corpus. Stanley J held that the powers conferred upon the Public Advocate under s 29 of the GA Act in her capacity as the applicant’s guardian in respect of accommodation and lifestyle issues did not empower her to decide where the applicant was to reside. Such power was conferred exclusively by s 32(1)(a) of the GA Act. On the application of the guardian, SACAT could decide where the applicant was to reside or that decision could be delegated to the Public Advocate as guardian. Stanley J also held that s 32 of the GA Act was an exhaustive code which conferred power to decide not only where and with whom a protected person is to reside but also the conditions of that residence. The latter includes the nature and degree of any restraint or detention required for the protection of the protected person or others.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Ms Rugless further held that because only an appointed guardian can apply for a special powers order under s 32 of the GA Act, the setting aside of the guardianship order made on 27 September 2018 necessarily required that the order for special powers made on 25 January 2019 must also be set aside. The decision to remit for further hearing Ms Rugless also delivered ex tempore reasons during the course of the hearing on 28 February 2019 explaining her decision to remit the matter for reconsideration in the ordinary jurisdiction of SACAT rather than to decide the matter herself in the internal review jurisdiction. Ms Rugless noted that in my former capacity as President of SACAT, I had examined in Re AKS the role of SACAT when conducting an internal review under s 70 of the SACAT Act.[4] Consistently with Re AKS, SACAT was to conduct a merits review. The member must examine the decision made at first instance on the evidence or material that was before SACAT at that time but may, as he or she thinks fit, allow further evidence or material to be presented. When conducting an internal review, SACAT must reach the correct or preferable decision but must have regard to, and give appropriate weight to, the decision at first instance.[4] [2016] SACAT 19. With the exception of one affidavit, Ms Rugless received all evidence that was before the decision maker at first instance and the further evidence that had been tendered on the internal review.[5] Ms Rugless noted that most of the evidence presented to SACAT since the hearing in September 2018 was fresh evidence about recent events although there was also some further evidence about earlier issues.[5] The copy of the SACAT file provided to this Court pursuant to the request made by the applicant in his notice of appeal comprises in excess of 1,000 pages. Of course, not all that material comprises evidence. Nevertheless, the volume of evidence and submissions received by SACAT has been very substantial. Ms Rugless accepted the correctness of the submission by all parties that it was permissible for her to decide the matter in light of the additional evidence. However, she noted that an internal review is primarily concerned with examining the decision made at first instance although there was a discretion to allow further evidence. While counsel for the Public Advocate had submitted that Ms Rugless could approach the matter by giving little weight to the decision at first instance, she was concerned, because of the defects in the process and the insufficiency of evidence, that it would be very difficult for her to give any weight at all to the first instance decision. Thus, the question now arose as to whether she was now being asked to conduct a merits review of the first instance decision or to conduct an appeal de novo. Ms Rugless also observed that the jurisdiction exercised by SACAT under the GA Act was unique. When determining GA Act matters at first instance SACAT was required to conduct an inquisitorial process in a protective jurisdiction. A proper inquisitorial process required that all relevant parties and interested persons should be present. Section 5 of the GA Act required SACAT to balance and weigh up a number of different principles with the paramount consideration being what would have been wanted by the person who was the subject of the application. It was also necessary to consider their current wishes, if possible, and also any informal arrangements that might be adopted for their proper care and protection. The orders made must be the least restrictive of the person’s rights as is consistent with their proper care and protection.

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.