BC v The Public Advocate (No 4) - [2019] SASC 57

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 Court to grant a remedy in the nature of habeas corpus (at [101]-[112]).
South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 23, 70, 71, 72, 86; Guardianship and Administration Act 1993 (SA) ss 5, 29, 32, 50, 51; Supreme Court Civil Rules 2006 (SA) rr 197, 289; Habeas Corpus Act 2001 (NZ); Mental Health Act 1986 (Vic); Mental Health Act 2009 (SA), referred to.
Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1; Pix v South Australian Housing Trust (2016) 125 SASR 10; R v Board of Control; Ex parte Rutty [1956] 2 QB 109; Manuel v Superintendent of Hawkes Bay Regional Prison [2005] NZLR 161; Sestan v Director of Area Mental Health Services [2007] 1 NZLR 767; Skylass v Retirement Care Australia (Preston) Pty Ltd [2006] VSC 409; Giurina v Melbourne Health [2018] VSC 143; Richards v Victoria Police [2007] VSC 51, applied.
BC v Public Advocate [2018] SASC 193, distinguished.
BC v Public Advocate (No 2) [2019] SASC 54; BC v Public Advocate (No 3) [2019] SASC 51; Re AKS [2016] SACAT 19; Re HWS [2018] SACAT 39, considered.

BC v THE PUBLIC ADVOCATE & ORS (NO 4)
[2019] SASC 57

PARKER J: 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) on 1 March 2019.[1] For the reasons that follow, I refuse permission to appeal.
[1] The decision was made, and corresponding ex tempore reasons delivered, in the course of the hearing on 28 February 2019. The corresponding order of the Tribunal was signed on the following day, 1 March 2019.
The applicant, BC, seeks that the Full Court set aside decisions by Acting Deputy President Rugless to remit proceedings for further hearing within SACAT and to appoint the Public Advocate as his full guardian on an interim basis pending resolution of those proceedings. [2] The applicant has also included in the notice of appeal an application for the remedy of habeas corpus.
[2] By “full” guardian I mean that the appointment cover decisions about lifestyle, accommodation and medical treatment rather than being limited to only one or two of those heads of power. The reference to decisions about accommodation must be read consistently with the decision of Stanley J in BC v Public Advocate [2018] SASC 193.
The Public Advocate is the first respondent. Her role in these proceedings arises because of her appointment as the applicant’s interim guardian. The second respondent, Be C, is the wife of the applicant and the third respondent, DC, is a son of the applicant. DC seeks the same outcome as that pursued by the applicant. Be C opposes the position advanced by the applicant and DC.
In addition to seeking the setting aside of the orders made by SACAT on 1 March 2019, the applicant seeks that his niece, RV, be appointed as his guardian under s 29 of the Guardianship and Administration Act 1993 (SA) (the GA Act), and that no orders be made under s 32 of the GA Act. Alternatively, the applicant seeks that if an order is made conferring special powers under s 32 those powers should be conferred upon RV. He also seeks the issue of a writ of habeas corpus inquiring into the circumstances of his detention and/or terminating his detention, with him being released into the care of the third respondent, his son DC. Alternatively, the applicant seeks an order that he be permitted “day visits into the care of the Third Respondent at the request of the Appellant”.
The grounds of appeal
The grounds upon which the applicant seeks permission to appeal are as follows:
1. The Tribunal erred in that it was unreasonable, illogical or irrational for the Tribunal to have remitted the matter (being the application made on 3 September 2018) to the Tribunal at first instance for further hearing pursuant to s70(6)(c)(ii) of the SACAT Act 2013, SA (the Act), rather than substitute its own decision, in circumstances where the Tribunal was under a statutory duty to reach, on its review, the correct or preferable decision and where the appellant is 95 years old and has been unlawfully detained from no later than 5 October 2018 until 18 December 2018 and thereafter subject to orders for detention.
2. The Tribunal erred in law in failing to consider substituting its own decision pursuant to section 70(6)(c) of the Act for the decision of the Tribunal at first instance.
3.   Further, the Tribunal erred in that it was unreasonable, illogical or irrational for the Tribunal not to substitute its own decision in circumstances where the decision to remit, coupled with the imposition of the interim orders, precluded or impeded judicial scrutiny of the decision of the Tribunal at first instance and on review.
4.   The Tribunal erred in law in failing to consider that the decision to remit, coupled with the imposition of the interim orders, precluded or impeded judicial scrutiny of the decision of the Tribunal at first instance and on review.
5. The Tribunal erred in law in that it failed, when making the interim orders, to consider and observe the principles set out in s5(a) of the Guardianship and Administration Act by giving paramount consideration to the wishes of the appellant.
6. The Tribunal erred in law in that it failed, when making the interim orders, to consider and observe the principles set out in s5(d) of the Guardianship and Administration Act that the order be the least restrictive of the person’s rights or personal autonomy as is consistent with his or her proper care and protection.
7.   The Tribunal erred in law in making the interim orders on review appointing the Public Advocate as guardian pending the rehearing on the remittal, in that:
a.   the Tribunal failed to accord procedural fairness to the appellant in making that order by failing to inquire as to the appropriateness of alternative guardians;
b.   failed in making the interim orders to consider the manner in which the Public Advocate had exercised its powers to date;
c.   failed to have regard to the longstanding and entrenched nature of the conflict between the appellant and the Public Advocate, including the opposition of the Public Advocate to attempts of the appellant to mediate the dispute with the appointed guardian;
d.   failed to accord appropriate weight [to] the expert evidence concerning the benefits of an alternative guardian.
Permission to appeal
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, and
c. 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.
Stanley J found that the power to lawfully detain a protected person is found exclusively in s 32(1)(b) of the GA Act. His Honour found that the applicant had not been detained in the Facility pursuant to the exercise of the power conferred by s 32(1)(b). He had been detained by reason of the actions of the Public Advocate and the staff of the Facility. For these reasons, Stanley J found that the applicant had been unlawfully detained. He was therefore entitled to the remedy provided by the writ of habeas corpus.
Given that finding, Stanley J declined to consider the challenge to the validity of the decision made by SACAT on 27 September 2018 in which SACAT made orders for the limited guardianship of the applicant. That decision was the subject of internal review proceedings in SACAT. The second decision challenged in the judicial review application was the decision of the Public Advocate to direct that the applicant was to reside in the dementia unit at the Facility. That decision had been overtaken by the grant of habeas corpus. The third SACAT decision under challenge was the failure to order a medical assessment of the applicant by a consultant geriatrician. That decision had been overtaken by the order made by Stanley J that the applicant be assessed by Dr Faunt. Thus, Stanley J held that there was no utility in reviewing the second and third SACAT decisions. Stanley J exercised the discretion not to grant judicial review while the first decision was still being reviewed by SACAT.
Stanley J observed that SACAT is a specialist tribunal conferred with the jurisdiction and power to decide disputes of the present kind. It is undesirable that the jurisdiction of this Court should be invoked by an application for judicial review which would circumvent the exercise of SACAT’s specialist jurisdiction. SACAT is better equipped to deal with disputes in relation to guardianship of vulnerable persons in a timely and cost-efficient way. His Honour observed that there was no evidence before the Court which would satisfy him that SACAT had been dilatory or that there had been any unreasonable delay in hearing and determining the internal review.
Appointment of a litigation guardian
On 22 March 2019, immediately prior to hearing the application for permission to appeal, I appointed Ms Pamela McEwin, a partner in the firm of Treloar & Treloar, as the applicant’s litigation guardian in relation to the current proceedings in this Court. That appointment was sought by the applicant’s legal representatives.
The initial SACAT decision on internal review
The application for internal review under s 70 of the SACAT Act came before Acting Deputy President Rugless on 28 February 2019. The internal review dealt with the guardianship order made by SACAT on 27 September 2018 and also an order for special powers made on 25 January 2019.
The setting aside of the earlier orders
Ms Rugless was satisfied that the order dated 27 September 2018 should be set aside. Her reasons are primarily stated in an ex tempore ruling that has been incorporated by reference into her published decision. Ms Rugless found that the wishes of the applicant and his right to be involved in the proceedings had not been given appropriate deference at first instance and the inquisitorial hearing process had miscarried. In particular, Ms Rugless observed that the member conducting the hearing had failed to comply with s 5 of the GA Act by not properly ascertaining or giving any weight to the present wishes of the applicant. She also had some concerns about the sufficiency of the evidence as to what would be the applicant’s wishes if he were not mentally incapacitated and the appropriateness of informal arrangements. Ms Rugless also expressed further concerns about the extent of the medical evidence available at first instance and whether the order was the least restrictive of the applicant’s rights as is consistent with his proper care and protection. While there was some evidence at first instance of the applicant’s mental incapacity, there was limited evidence about his ongoing capacity to make decisions.
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.
Ms Rugless referred to her own decision in Re HWS where she had noted that SACAT members actively adopt an inquisitorial process and conduct most of the questioning of witnesses, the formal questioning and cross-examination of witnesses is appropriately curtailed, evidence is not usually taken under oath, the rules of evidence do not apply and SACAT will inform itself as it sees fit.[6]
[6] [2018] SACAT 39 at [36].
Ms Rugless then stated in her oral reasons that:
This brings me back to section 70 of the SACAT Act and the nature of a review of a decision on the merits. Even taking into account all of the additional evidence on the internal review, I am still examining the decision at first instance and am to give it some weight and I must consider the evidence there and whether that hearing process miscarried. Because I’ve got a concern that it did so, and because the evidence now before me is essentially fresh evidence of recent events, it is my view that the appropriate course now would not be to conduct that process on internal review. This is primarily because of the difference in the nature of the inquiry at first instance and the role of the Tribunal on the review. At first instance it is an inquisitorial process; on internal review it is not an inquisitorial process to the same extent.
Ms Rugless indicated that she had given anxious consideration to the question of whether she could continue hearing the matter on internal review. She had taken into account the submissions, both oral and written, including the very clear submission of the Public Advocate, as to how the matter may be brought to an end as quickly as possible. Nevertheless, after considering those matters and giving weight to them, Ms Rugless’ view was “that the best way forward is to remit the matter and have the matter listed as soon as possible in the ordinary jurisdiction before a differently constituted Tribunal.”
The interim orders
Upon setting aside the orders made on 27 September 2018 and 25 January 2019, Ms Rugless found that it was necessary to make interim orders under s 70(7) of the SACAT Act to protect the interests of BC and to ensure his proper care and protection until the matter could be heard and determined in the ordinary jurisdiction of SACAT. Ms Rugless therefore made an interim guardianship order under s 29 of the GA Act and an interim special powers order under s 32.
During the course of the hearing on 28 February 2019 Ms Rugless gave ex tempore reasons for the making of the interim orders. She found that the applicant had a mental incapacity in the form of a deteriorating neurodegenerative condition that had caused him to lose the ability to make decisions. He was vulnerable because of the family conflict that had arisen around him and was also vulnerable due to his distress about being placed in an aged care facility where he does not want to be. She took into account the applicant’s current wishes but noted that these change from time to time and may be affected by his circumstances and who has visited him recently. The report of Dr Bastian had referred to that issue.
Ms Rugless noted that she had taken into account the submissions of Mr Livesey QC concerning the adoption of the least restrictive approach, that being to leave the issues to be resolved by informal arrangements. Nevertheless, she considered that there was a need during the interim period for a guardian to be appointed to make decisions about physical, emotional and psychological health. There were also decisions to be made about the applicant’s accommodation, where he should live and with whom and whether there was to be any change to his current arrangements. It was also necessary to make arrangements in relation to access to the applicant, i.e. who should have access to him and when and where.
Ms Rugless observed that because she was making interim orders her approach to decision making was affected. She had not had the opportunity to conduct a full inquisitorial process and to speak to the applicant and his family members. Because she was making an interim order that she expected to operate for no more than three weeks, she had also not spoken to the two persons who had been proposed as alternative guardians (i.e. the applicant’s niece, RV and his solicitor Mr Brenton Miegel). I note that senior counsel for the applicant has informed the Court that RV and Mr Miegel were present outside the hearing on 28 February 2019 and could readily have been asked to give evidence concerning their suitability for appointment as guardian.
Ms Rugless did not consider that it was appropriate to appoint RV on an interim basis although she might be an appropriate long-term appointee. That was because she did not consider that RV would be able to familiarise herself with the relevant issues in the short term. Ms Rugless was also concerned that her relationship to all persons involved in the matter may affect her ability to make objective decisions.
Ms Rugless also stated that she did not consider it appropriate to appoint Mr Miegel. She raised a concern about how he was being retained but had not explored that issue in detail. While he may be a suitable long-term appointee she noted that his appointment was opposed by the applicant’s wife, Be C, and by the Public Advocate.
Ms Rugless noted that the applicant’s wife, Be C, had previously sought to be appointed as the full guardian of the applicant. Her counsel, Ms A Wells, informed the Tribunal that Be C now sought that the Public Advocate be appointed as guardian with respect to accommodation and lifestyle decisions and that Be C to be appointed as guardian for health decisions.
Because of the significant conflict between family members, Ms Rugless decided that it was not appropriate to appoint Be C as guardian with her powers limited to health care decisions. While taking into account the recent concern expressed by the applicant about people whom he did not know making decisions, Ms Rugless nevertheless considered it appropriate to appoint the Public Advocate as the full guardian on an interim basis.
Ms Rugless stated that in making the interim orders she took into account the current medical, residential and social circumstances of BC and, in particular, the fact that there was extensive conflict between members of his immediate family concerning his care, accommodation and wellbeing and that this conflict was affecting him and causing him distress. Ms Rugless also concluded that there was a need for an independent guardian, other than an immediate family member, to be appointed on an interim basis so as to ensure that objective decisions were made for the proper care and protection of BC and to ensure that the principles under s 5 of the GA Act were taken into account when making those decisions.
Further SACAT proceedings
After ordering that the matter be remitted to SACAT as constituted at first instance, Ms Rugless immediately applied her delegated power to reconstitute SACAT under s 23 of the SACAT Act for the purpose of dealing with the matter.
Ms Rugless recommended that due to the age, vulnerability and circumstances of the applicant the matter should be listed in the ordinary jurisdiction as soon as possible at a time convenient to the applicant, the parties, interested persons and relevant witnesses.
Ms Rugless further recommended that authorisation should be sought under s 86 of the SACAT Act for a SACAT member to visit BC to take evidence or to attempt to ascertain his current wishes in respect of the application and any other relevant issues.
Submissions on 22 March 2019
At the hearing of the application for permission to appeal on 22 March 2019, Mr M Livesey QC appeared with Mr D O’Leary for the applicant, BC. Mr M Boisseau appeared for the first respondent, the Public Advocate, and Ms A Wells for the second respondent, Be C. Dr R Gray SC and Mr T Guthrie appeared for the third respondent, DC. The submissions made on 22 March 2019 focussed on the orders made by Ms Rugless on 1 March 2019.
Mr Livesey submitted that the proposed appeal was reasonably arguable and it was plainly in the interests of justice that there be an appeal. Mr Livesey submitted that there was, in general terms, no conflict amongst the applicant’s family except in relation to the question of where he should he reside. He also asserted that the applicant’s wife and many of his children were reluctant to spend funds upon his care outside an institution. However, the third respondent was prepared to expend those funds without recourse to other family members. The applicant had expressed very clear views that he did not wish to live in an institution. Ms Rugless had acknowledged the failure to take into account the applicant’s views when she set aside the decisions made in September 2018 and January 2019.
Mr Livesey submitted that the applicant was distressed, upset and depressed and had been suicidal at the prospect of remaining in the Facility.
Mr Livesey acknowledged that it may be necessary to take further evidence in SACAT but submitted that the most obvious further evidence was to be obtained by interviewing the applicant. Mr Livesey submitted that Ms Rugless was well placed to make the necessary decision and should have done so rather than “restart the clock” by remitting the matter for further hearing.
If Ms Rugless had retained the conduct of the matter, Mr Livesey suggested that it could have been disposed of within a day or so after a tribunal member had visited and taken evidence from the applicant.
Mr Livesey also contended that Ms Rugless had made two other errors. The alleged errors were, first, the decision to appoint the Public Advocate on an interim basis without considering the possibility of an alternate appointment and second, the order under s 32 of the GA Act providing for the ongoing detention of the applicant. In that respect, Mr Livesey noted that his client was aged 95 years, used an A-frame and had never tried to leave the Facility. For those reasons Mr Livesey suggested that it was truly fanciful to think that he was going to leave the Facility. There was no history of him wandering away from the Facility but he had wandered into the rooms of other residents. While he was vehement in his desire to leave the Facility, he had never tried to act upon it. Mr Livesey acknowledged that there was some dispute in the medical evidence about the merits of providing care to the applicant outside an institution.
Mr Livesey submitted that the proposed appeal raised an important issue about the manner in which SACAT should conduct reviews where a situation is urgent, and also the type of orders that might appropriately be made on an interim basis. In particular, Mr Livesey referred to the question of whether interim orders needed to take account of the requirement in s 29(4) of the GA Act that the Public Advocate should only be appointed as guardian if SACAT considered that no other order would be appropriate, and also the need to take account of the principles stated in s 5 of that Act. It seemed that Ms Rugless did not properly take these matters into account because the order was being made on an interim basis. If the matter were to be remitted by the Full Court to Ms Rugless that would occur on a different basis without being clouded by the interim orders that were made in error and without proper regard to the GA Act.
Dr Gray adopted the submissions made by Mr Livesey. She submitted that the evidence before Ms Rugless established that the third respondent proposed 24-hour professional care in a private residential facility with care being provided on a one-on-one basis. The arrangement was to be funded by her client. He would absent himself from the premises whenever other family members wanted to visit. The evidence of Dr Hecker, a geriatrician, was that the applicant would be physically safer under that arrangement as it was not possible to have a staff member with him at all times in a residential care facility. On that basis, Dr Gray contended that the decision of Ms Rugless to preserve the status quo without making a decision was manifestly unreasonable.
Dr Gray also submitted that the habeas corpus application should be referred to the Full Court under r 197 of the Supreme Court Civil Rules. She submitted that such a referral was appropriate because the applicant was being detained under the authority of an order made by a Presidential Member of SACAT and appeals against such decisions are to be determined by the Full Court if permission is granted. Thus, the same approach ought to be adopted with the habeas corpus application albeit that permission was not required.
Dr Gray also submitted that there was a significant matter of public importance that had arisen from the decision of Stanley J in BC v Public Advocate.[7] The effect of his Honour’s decision is that there are many matters where SACAT needed to decide whether a person should be detained under s 32. Dr Gray contended that the failure by Ms Rugless to observe the statutory criteria is a matter of general public importance, upon which the guidance of the Full Court would be beneficial.
[7] [2018] SASC 193.
Dr Gray also submitted that the Public Advocate should be removed as guardian as she had acted inappropriately because she had made determinations which were restrictive of the applicant and contrary to his wishes.
Dr Gray also submitted that the effect of the decision by Ms Rugless to remit the matter for further hearing was to remove the case from appellate scrutiny. Dr Gray went so far as to contend that the applicant would die in the Facility without the merits of his detention being determined by a tribunal or court. Dr Gray also complained that the Public Advocate had refused to mediate the matter.
While he did not concede that the appeal was reasonably arguable, Mr Boisseau submitted on behalf of the Public Advocate that there were three reasons why the interests of justice did not support the grant of permission. Mr Boisseau submitted that the matter was not of sufficient substance to warrant the attention of the Full Court. The essence of the current dispute was who should make a decision that all parties agree needs to be made. The question to be decided was the identity of the applicant’s guardian and what powers they should have. The applicant had succeeded in achieving part of what he sought at the internal review hearing, in that the guardianship order made at first instance was set aside.
Mr Boisseau further submitted that the substance of the interest asserted by the applicant was the potential need for there to be a further internal review within SACAT before he could invoke the jurisdiction of this Court. However, that interest was merely a possibility because it assumed that the applicant will not be satisfied with the final decision made by SACAT.
The second issue raised by Mr Boisseau was the need to avoid fragmenting the proceedings. If the applicant were to succeed, it is possible that the matter might be remitted by the Full Court to SACAT. It may be the case that if the matter were to be remitted by the Full Court and then decided by SACAT, contrary to the position of the applicant, a further appeal might be pursued against the orders of SACAT. Fragmentation of the proceedings should be avoided and the interests of justice clearly favour allowing the proceedings to proceed to a final decision in SACAT. The Court should not interfere with the processes of an expert tribunal in the balancing of issues such as listing availability and the avoidance of delay.
The third issue referred to by Mr Boisseau was the utility of the course proposed by the applicant. While the Full Court was available to hear the matter in the near future, it was likely that the SACAT proceedings could be decided at an earlier time (which has proved to be correct).
Ms Wells adopted the submissions of Mr Boisseau and referred to some additional matters. She submitted that it was not in the interests of justice to grant permission to appeal. SACAT was dealing with the matter and should be permitted to get on with its work as a specialist tribunal and undertake the inquisitorial inquiries which the Full Court could not undertake. It was important that family members be permitted to participate in the hearing then pending before SACAT. The family members had come from overseas and interstate to participate in the SACAT hearing by making submissions and giving evidence.
Ms Wells also noted that there was no evidence to support the suggestion by Mr Livesey that her client, Be C, and the five children other than the third respondent did not wish to expend funds on the care of the applicant outside the Facility. Be C and the five other children considered that the applicant should live in the Facility because that option was the least restrictive and most consistent with his care and protection.
Ms Wells also responded to a suggestion that her client Be C had been dismissive of the suggestion by the applicant that he was suicidal. The matter had been referred to in submissions from the Bar table without any proper context. The context was that Be C had been married to the applicant for 42 years and they have their own understanding and way of communication. There was also no current evidence that he remains suicidal. The latter point was disputed by senior counsel for the applicant in his reply.
Further hearing in SACAT on 27 March 2019
A further hearing was conducted in SACAT on 27 March 2019 by two members pursuant to the remittal made by Ms Rugless on 1 March 2019.
The applicant did not attend the hearing on 27 March 2019. However, he had been visited by members of SACAT prior to the hearing to ascertain his wishes. Apparently, evidence was taken from the applicant under s 86(1) of the SACAT Act. The statement of findings issued after the hearing on 27 March 2019 records that the evidence provided by the applicant to the visiting members was recorded and transcribed and taken into account by SACAT in addition to other evidence of the applicant’s wishes referred to at the hearing.
The statement of reasons published by SACAT records that it gave consideration to the appointment of a guardian other than the Public Advocate. Such an appointment was opposed by five of the six children of the applicant and by his wife, Be C. They expressed concern about the real or perceived influence from the third respondent upon the proposed alternative guardian or guardians relating to the care of the applicant. SACAT also noted that the relationship between Be C and the proposed guardians was damaged. In those circumstances, SACAT concluded that no order other than the appointment of the Public Advocate as guardian was appropriate. There had been ongoing conflict between family members, particularly concerning the guardianship decisions which had been made, and are to be made, for the applicant. The Public Advocate was appointed full guardian of the applicant until further order of SACAT. The order is to be reviewed on or before 26 March 2021.

SACAT also considered an application for the grant of special powers under s 32 of the GA Act. SACAT found that the health or safety of the applicant or the safety of others would be seriously at risk if an order was not made under s 32. SACAT therefore ordered that the applicant must reside in the Facility or such other place as the guardian from time to time thinks fit. SACAT also ordered that the applicant may be detained at the Facility or such other place as the guardian decides he is to reside. That order is to continue until further order of SACAT. The order made under s 32 is to be reviewed on or before 26 September 2019.
Further submissions on 2 April 2019
Following the SACAT hearing on 27 March 2019 and the making of ongoing orders, the parties requested the opportunity to make further oral submissions about the application for permission to appeal. Those submissions were heard on 2 April 2019. At that time the reasons for the SACAT decision had not been published. A brief statement of findings had been issued.
Mr D O’Leary appeared for the applicant. He submitted that there was still utility in granting permission to appeal. The issues were such that it was necessary for the Full Court to provide appropriate guidance to SACAT as to the exercise of its powers under s 32 of the GA Act and s 70(6) of the SACAT Act. The former provision is concerned with the making of orders as to where a protected person is to reside and the grant of special powers authorising their detention, while the latter provision grants a range of powers to SACAT on the hearing of an internal review application.
Mr O’Leary submitted that the approach adopted by SACAT was Kafkaesque. The applicant was caught in an “internal review loop”. Ms Rugless had upheld the appeal against the making of the original orders but had then remitted the matter for further hearing rather than deciding the issues herself. If the Full Court did not intervene there was a risk that a successful internal review of the orders made by SACAT on 27 March 2019 could result in a further remittal for rehearing. That process might continue endlessly without this Court having the opportunity to review the lawfulness of the practices adopted by SACAT.
Mr O’Leary also submitted that I should refer questions of law to the Full Court for its consideration. The questions would deal with the application of s 32 of the GA Act and s 70(6) of the SACAT Act.
Dr Gray appeared for the third respondent. She adopted the submissions made by Mr O’Leary. She also submitted that the habeas corpus application that had been coupled with the application for permission to appeal was not subject to the same procedural requirements. As the judgment of Stanley J in BC v Public Advocate indicated, the habeas corpus application was effectively a collateral challenge to the validity of the orders made under s 32 of the GA Act.
Dr Gray complained that the making of a less restrictive order had not been considered by SACAT. Dr Gray also submitted that the reasoning of SACAT in relation to the grant of special powers under s 32 of the GA Act was defective. The stated reasons were that the area of the Facility in which the applicant lives is locked from 5 pm to 9 am and thus a special powers order is required. However, s 32(2) provides that such an order cannot be made unless SACAT is satisfied that if such an order were not made and carried out the health or safety of the person, or the safety of others, would be seriously at risk.
Further to the latter proposition Dr Gray also submitted that because the Public Advocate had not informed the Court that s 32 orders were not routinely being made in SACAT in circumstances similar to those referred to in the preceding paragraph, there was a matter of a public importance that warranted the attention of the Full Court. The matter of public importance was the correct application of s 32. Dr Gray submitted that this issue is unlikely to be resolved by the reserved judgment of the Full Court in the appeal from the orders of Stanley J in BC v Public Advocate.
A further submission by Dr Gray was that before a special powers order could be made, s 5(d) of the GA Act required SACAT to adopt the least restrictive option consistent with the person’s proper care and protection. Thus, SACAT must consider what would be the position if s 32 orders were not to be made. In this case the least restrictive option was for the applicant to be provided with full time and dedicated professional care at the premises to be provided by the third respondent.
Mr Boisseau appeared for the first respondent and submitted that the reasons stated by Ms Rugless for the making of the interim order that the applicant be detained at the Facility were consistent with s 32 of the GA Act. The only issue was the sufficiency of the evidence. Mr Boisseau also submitted that in the absence of a challenge to the validity of the final s 32 order there was no basis for the habeas corpus application.
Ms Wells appeared for the second respondent and adopted the submissions of Mr Boisseau. She added also that this permission application should not be allowed to transmute into an application against the final orders as a way of circumventing interim orders which are no longer on foot.
Consideration
In Jackson v Lepp Investments Pty Ltd, I indicated the principles to be applied when considering an application for permission to appeal from SACAT to this Court.[8] I stated:
The overriding principle is always the interests of justice. The ordinary approach is that permission will only be granted where an appeal is reasonably arguable and the subject matter is of sufficient substance to justify consideration. A failure of the first‑instance decision-maker to give adequate reasons will require the grant of permission.
Because SACAT is a specialist tribunal with particular expertise in determining tenancy disputes, this Court must give substantial weight to its findings.
(Citations omitted)
[8] (2016) 125 SASR 1 at 6 [19]-[20] (Parker J).
The principles that I stated in Jackson were subsequently adopted by the Full Court in Pix v South Australian Housing Trust.[9]
[9] (2016) 125 SASR 10.
While both Jackson and Pix were concerned with applications for permission to appeal from SACAT in its tenancy jurisdiction, the principles adopted in those cases are of general application. Consistently with the decisions in Jackson and in Pix, 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.
In addition to its specialist role in tenancy matters, SACAT also has particular expertise in determining proceedings under the GA Act. It hears many thousands of such applications each year. That specialist expertise must be recognised when considering whether a statutory discretion has been properly exercised or whether an evaluative judgment has been founded upon correct principles. In that context it also important that, when deciding an application for internal review, SACAT is required by s 70(5) of the SACAT Act to arrive at the correct or preferable decision after giving appropriate weight to the decision made at first instance.
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.
I consider that contention to be premature. I have already indicated that, in my view, Ms Rugless had proper grounds to remit the matter. A decision has been made on the remittal and the applicant has applied for internal review of that decision. If the decision made by SACAT on that internal review was to further remit the matter, the submissions about an “internal review loop” might carry much greater weight. However, at present, I do not consider that there is any merit to the contention that the decision to remit the matter for further hearing operated to preclude or impede judicial scrutiny.
Of course, the position would be very different if a real possibility of injustice arose. However, I am not persuaded that the point has been reached where it can properly be said that the approach adopted by SACAT has resulted in a possible injustice to the applicant. While he and the third respondent may disagree with the decision made by Ms Rugless, and also the subsequent decision made on the remittal, of itself this is not a basis to grant permission to appeal.
Consideration of the interim orders
I turn to the applicant’s contentions concerning the making of the interim orders by Ms Rugless under ss 29 and 32 of the GA Act. The applicant’s complaint is that Ms Rugless failed to consider and observe the principle set out in paragraphs (a) and (d) of s 5 of the GA Act. A further complaint is that the applicant was not accorded procedural fairness and that Ms Rugless failed to consider the manner in which the Public Advocate had exercised her powers to date, failed to have regard to the conflict between the appellant and the Public Advocate, including her opposition to attempts to mediate, and had failed to give appropriate weight to the expert evidence concerning the benefits of an alternative guardian.
Ms Rugless did consider the applicant’s distress about being placed in the Facility but also noted that some of the medical evidence indicated that his wishes changed from time to time and may be affected by who had visited him recently. She considered whether it was appropriate to leave issues to be resolved by informal arrangement but decided that it was necessary to appoint a guardian on an interim basis. In that light, I do not consider that it is reasonably arguable that Ms Rugless failed to consider and observe the principles set out in paragraphs (a) and (d) of s 5 of the GA Act. It is clear that she specifically considered those issues.
Ms Rugless recorded that she did not consider it appropriate to appoint the potential alternative guardians proposed by the applicant (i.e. RV and Mr Miegel) on an interim basis although both might possibly be appropriate long-term appointees.
Ms Rugless’ decision that RV and Mr Miegel were not suitable appointees as interim guardian was based on adverse factual considerations that she had not given them the opportunity to address even though they were present outside the hearing. I therefore consider it to be reasonably arguable that the criteria for determining suitability for appointment as a guardian in s 50 of the GA Act were not properly applied. I also regard it as arguable that a less rigorous approach may be required when making a short term interim appointment.
While the application for permission to appeal contends that Ms Rugless erred in law in failing to consider the manner in which the Public Advocate had exercised her powers, the only submissions put to me were that the applicant disagreed with some of the decisions made by the Public Advocate and did not like persons whom he did not know making decisions about him. I do not consider that those matters alone give rise to an arguable case that the decision to appoint the Public Advocate involved an error of law. While I might possibly have taken a different view if there was more substance to the issue than suggested in submissions, it is unnecessary to pursue that issue because of my conclusion that permission ought to be refused on other grounds.
Insofar as reliance is placed by the applicant on the opposition of the Public Advocate to mediation, that issue was explored at length at a hearing conducted before Ms Rugless on 30 January 2019. The third respondent supported referral of the matter to mediation but that was opposed by the Public Advocate on the basis that the issues to be mediated related to the nature of the decisions to be made by the appointed guardian, rather than questions as to the need for a guardianship order, who should be appointed as guardian or the need for a special powers order. The second respondent, the applicant’s wife Be C, opposed a referral to mediation on the basis that the disputed issues were not capable of mediation due to the extent of the family conflict about the applicant’s living arrangements.
After receiving written submissions on the question of a referral to mediation Ms Rugless held on 4 February 2019 that the matter, or any aspect of the matter, was not amenable to either mediation or referral to a compulsory conference under s 50 or s 51 of the SACAT Act. In reaching that conclusion, Ms Rugless took into account submissions from all parties and a further three of the applicant’s children (i.e. other than the third respondent). The second respondent and at least three of the applicant’s children actively opposed a referral to mediation due to what they described as an extreme level of conflict with the third respondent.
Ms Rugless noted that proceedings in SACAT under the GA Act were not adversarial and the outcome of the proceedings did not involve a finding in favour of one party in preference to another. Even if family members and professionals were to reach agreement on whether a guardian was required, whom should be appointed, the extent of their decision-making powers and whether there was a need for a conferral of special powers, those issues must be decided by SACAT.
Ms Rugless also expressed some doubt as to whether the Tribunal could order the Public Advocate to engage in a process designed to discuss settlement outcomes. Her concern was that the Public Advocate must make decisions in accordance with her statutory duties.
In light of the preceding matters, I do not consider it to be reasonably arguable that Ms Rugless erred in law by failing to take into account the unwillingness of the Public Advocate to participate in mediation.
I have found it to be reasonably arguable that the interim orders made by Ms Rugless involve an error of law. However, those orders were issued on an interim basis and ceased to operate when SACAT made ongoing orders on 27 March 2019. The applicant has a right to seek internal review of the ongoing orders. I do not consider that the validity of the now expired interim orders is an appropriate matter for consideration by the Full Court.
The applicant also contends that the approach taken by SACAT to the application of s 5 and s 32 of the GA Act is a matter of general importance that warrants the attention of the Full Court. I consider the grant of permission in the present circumstances to be premature. Ms Rugless merely remitted the matter for rehearing and made interim orders pending rehearing. Those orders were of an interlocutory nature and are now fully spent.
The further decisions made by SACAT on 27 March 2019 are not the subject of this application for permission. Moreover, that decision is now the subject of a further application for internal review within SACAT. If the applicant fails in this internal review, contended errors in the findings made by SACAT on questions of fact and law may potentially then provide a proper basis to grant permission to appeal.
For the foregoing reasons I also regard the suggestion that I should frame questions of law for consideration by the Full Court as premature. Furthermore, the approach adopted by Ms Rugless rendered it unnecessary for her to decide the many disputed questions of fact that appear to arise in this case. In the absence of appropriate factual findings, the Full Court should not be called upon to decide questions of law. If significant questions of law arise on the further internal review within SACAT, a Presidential member might consider the appropriateness of a referral to the Full Court under s 72 of the SACAT Act supported by relevant factual findings.
Consideration of the habeas corpus application
It is clearly the case, as Dr Gray submitted, that the application for habeas corpus is not subject to any permission requirement. It stands apart from the proposed appeal and seeks a different remedy. However, the incorporation of the habeas corpus remedy in the application does not necessitate the grant of permission to appeal. Whether permission to appeal should be granted must be considered against the principles stated in Jackson and in Pix.
Whether the habeas corpus remedy should be granted in circumstances where a person has been detained under mental health legislation or under statutory provisions that operate similarly to s 32 of the GA Act has been considered in Victoria and in New Zealand in recent years.
Before considering those authorities, it is important to recognise that the present circumstances are quite different from those that existed when BC v Public Advocate was decided by Stanley J. At that time the applicant was detained in the Facility pursuant to an arrangement made by the Public Advocate with the management of the Facility. Most importantly, there was no special powers order in force under s 32 of the GA Act that authorised the applicant’s detention.

The present situation is quite different because on 1 March 2019 Ms Rugless made an interim special powers order under s 32. Subsequently an ongoing special powers order was made by SACAT after the hearing on 27 March 2019. The application for habeas corpus has been directed at the interim order made by Ms Rugless. However, that order is no longer operative and the applicant is detained pursuant to the later ongoing order. I therefore consider that the application for habeas corpus must be considered against that later order and not the earlier spent order.
SACAT published a brief statement of findings on 27 March 2019 and a comprehensive statement of reasons on 11 April 2019. The reasons consider the application of each of the relevant provisions of the GA Act in light of extensive medical and other evidence, the submissions of counsel and of interested persons and, most importantly, the evidence of the applicant. After weighing up the evidence and submissions SACAT concluded that it was appropriate to appoint the Public Advocate as full guardian and to make a special powers order under s 32 of the GA Act.
In contrast to the situation that confronted Stanley J when he granted a habeas corpus order in BC v Public Advocate, the approach adopted by SACAT on this occasion does not display any obvious error and is supported by comprehensive reasons. Whether or not SACAT arrived at the correct or preferable decision in deciding to make the special powers order is a matter that may be tested in an application to SACAT for internal review under s 70 of the SACAT Act. A decision made on internal review may be the subject of an application for permission to appeal to this Court under s 71 of the SACAT Act. Because the decision of 27 March 2019 was not made by a Presidential member, any appeal must be determined by a single judge.
Against that background, I turn to the judicial authorities. A Divisional Court of the Queen’s Bench held in R v Board of Control; Ex parte Rutty that if a party seeks to challenge by way of habeas corpus an order under which they were detained, the role of the Court is limited to consideration of whether there was some evidence to justify the making of the order for detention.[10] The Divisional Court also held that the role of the court when considering a habeas corpus application does not extend to acting as a court of appeal to decide the validity of a detention order.[11] The case concerned the detention under statutory powers of a person described, in the terminology of the era, as a “mental defective”.
[10] [1956] 2 QB 109 at 119 (Hilbery J), 124 (Lord Goddard CJ), 126 (Devlin J agreeing).
[11] Ibid at 119 (Hilbery J).
The relevant facts in Manuel v Superintendent of Hawkes Bay Regional Prison were that a paroled life prisoner had been recalled to prison by order of the Parole Board following his conviction for several offences.[12] He applied for a writ of habeas corpus. The New Zealand Court of Appeal held that when considering a habeas corpus application a court is entitled to examine the lawfulness of an administrative decision that underpins an order for detention.[13] However, the court should only adopt such an approach if the “arguments in issue are properly susceptible to fair and sensible summary determination.”[14] If not, a challenge on administrative law grounds is better dealt with by way of judicial review.[15] That decision was followed by the New Zealand Court of Appeal in Sestan v Director of Area Mental Health Services.[16]
[12] [2005] 1 NZLR 161.
[13] Ibid at 175 [46].
[14] Ibid at 175-176 [49].
[15] Ibid.
[16] [2007] 1 NZLR 767 at 777 [45].
While the NZ Court of Appeal referred to judicial review as the preferable procedure, that was in circumstances where there was no right of appeal.[17] I consider that the reference to judicial review being the preferable procedure should be read as referring to an appeal or review right where that exists. Although the New Zealand cases were decided under the Habeas Corpus Act 2001 (NZ), the Victorian authorities to which I am about to refer indicate that the same approach should be adopted at common law.
[17] Manuel [2005] 1 NZLR 161 at 175 [47].
In Skylass v Retirement Care Australia (Preston) Pty Ltd the plaintiff alleged that his mother had been unlawfully detained in a nursing home against her wishes.[18] When the matter first came before the Court there was no order in place authorising the detention of the plaintiff’s mother. For that reason, the Court ordered the issue of a writ of habeas corpus. Prior to the return of the writ, the Victorian Civil and Administrative Tribunal (VCAT) appointed the Public Advocate as plenary guardian for the plaintiff’s mother. Byrne J accepted that while the guardianship order remained on foot, responsibility for her care rested with the Public Advocate. The relevant Victorian legislation is apparently in different terms to the provisions of s 32 of the GA Act considered by Stanley J. Nevertheless, the important point is that upon the Court being satisfied that VCAT had made an apparently valid order authorising detention, the intervention of the Court pursuant to the writ of habeas corpus was not required.
[18] [2006] VSC 409.
The facts before the Court in Giurina v Melbourne Health had some broad similarities to the present matter.[19] The plaintiff’s son asserted that his mother was being unlawfully detained in the Royal Melbourne Hospital. He sought that she be discharged from the hospital into his care. The Public Advocate had been appointed by VCAT as the temporary limited guardian of the plaintiff. John Dixon J observed that while an application for habeas corpus is usually characterised by urgency, this was not such a case. The primary concern of the defendant hospital was the best interests of the plaintiff.[20] John Dixon J held that, as it had not been demonstrated that the plaintiff was being illegally detained by the hospital, she was not entitled to a writ of habeas corpus. It is clear that the Court considered that the guardianship order made by VCAT authorised the detention of the plaintiff.
[19] [2018] VSC 143.
[20] Ibid at [31] (John Dixon J)..
In Richards v Victoria Police a habeas corpus remedy was sought challenging the detention of the plaintiff under the Mental Health Act 1986 (Vic).[21] Warren CJ held that the procedural requirements of the Mental Health Act had been followed and the medical evidence supported the making of an involuntary treatment order. Warren CJ noted that an appeal by the patient was about to be heard by the Mental Health Review Board. Her Honour held that the Board was the appropriate forum to assess the need for detention and refused relief in the nature of habeas corpus.
[21] [2007] VSC 51.
I consider it quite clear from the authorities to which I have referred that it is not appropriate to grant a remedy in the nature of habeas corpus in a case where a person has been detained pursuant to a special powers order made by SACAT under s 32 of the GA Act in circumstances where summary examination does not reveal any obvious defect in the process followed by SACAT in making that order. I distinguish the present circumstances from those previously considered by Stanley J on the basis that the detention of the applicant in the Facility is now authorised by the s 32 order. 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 s 32 order,[22] it is not appropriate for this Court to grant a remedy in the nature of habeas corpus. Whether or not the making of a s 32 order was the correct or preferable decision is a matter that may be decided by SACAT on an internal review application under s 70 of the SACAT Act, rather than by this Court pursuant to a habeas corpus application.
[22] My view also extends to the making of inpatient treatment orders under the Mental Health Act 2009 (SA).
My summary examination of the findings made by SACAT on 27 March 2019 shows that there was evidence to support the making of the special powers order under s 32 of the GA Act and the statutory processes appear to have been followed. Thus, there is no basis to grant a habeas corpus remedy. If it is contended that the making of the s 32 order was not the correct or preferable decision that can be tested on an internal review application. The role of this Court in dealing with a habeas corpus application does not extend to the creation of a de facto mechanism to hear appeals from the decisions of SACAT outside the procedures provided for in s 70 and s 71 of the SACAT Act.
Conclusion
For these reasons I refuse permission to appeal against the orders made by SACAT on 1 March 2019 and also decline to grant a habeas corpus remedy.