SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
BC v THE PUBLIC ADVOCATE & ORS
[2018] SASC 193
Judgment of The Honourable Justice Stanley
18 December 2018
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - HABEAS CORPUS
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PRESUMPTIONS AS TO LEGISLATIVE INTENTION
This is an application for judicial review of decisions made by the Public Advocate and the South Australian Civil Administrative Tribunal, and for relief in the form of associated writs and orders.
The plaintiff is currently residing in the dementia unit of an aged care facility. In September 2018, SACAT made an order pursuant to s 29 of the Guardianship and Administration Act 1993 (SA) (Act) that the plaintiff be placed under the limited guardianship of the Public Advocate in relation to matters of accommodation and lifestyle. In purported exercise of those powers of appointment, the Public Advocate directed that the plaintiff reside in the facility. The plaintiff, who is supported by the fourth defendant, contends he is being unlawfully detained in the facility.
At issue is whether the detention of the plaintiff in the particular circumstances which exist in this case is authorised by the grant of the limited guardianship order in relation to his accommodation and lifestyle, pursuant to s 29 of the Act, in favour of the Public Advocate, or whether the power to lawfully detain the plaintiff in the circumstances of this case is to be found exclusively in 32(1)(b) of the Act.
Held:
1. Section 29 of the Guardianship and Administration Act 1993 (SA) (Act) does not confer power on the guardian to decide where the protected person is to reside (at [36]).
2. Section 32 of the Act is an exhaustive code conferring power to decide not only where and with whom a protected person resides, but the conditions of that residence, including the nature and degree of any restraint or detention required for the protection of the protected person or others (at [36]).
3. The power to lawfully detain protected persons is found exclusively in s 32(1)(b) of the Act (at [43]).
4. The plaintiff has been detained by reason of the acts of the Public Advocate and the staff of the facility (at [44]).
5. The plaintiff has not been detained pursuant to the exercise of the power conferred by s 32(1)(b) of the Act (at [44]).
6. The plaintiff has been unlawfully detained and is entitled to the remedy provided by the writ of habeas corpus (at [45]).
7. It is appropriate to make an order pursuant to rule 198 of the Supreme Court Civil Rules 2006 (SA) that the plaintiff’s detention be terminated (at [47]).
Guardianship and Administration Act 1993 (SA) s 5, s 29, s 31, s 32; Supreme Court Act 1935 (SA) s 17; Supreme Court Civil Rules 2006 (SA) s 196, s 198, s 199; Guardianship and Administration Act 2000 (Qld) chapter 5B,…
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- Case
- [2018] SASC 193
- Decision Date
CaseChat Overview and Summary
The Court examined the statutory framework and the conditions under which BC resided at the facility. The conditions included restrictions on his freedom of movement, such as a locked door that could only be opened by entering a code or swiping a card. The Court had to determine whether these conditions amounted to an unlawful deprivation of liberty, considering the statutory presumptions and legislative intent. The Court noted that the Public Advocate had directed BC to reside at the facility, knowing the conditions, and believed these conditions were necessary for BC's care and protection. The Court also considered the affidavit evidence provided by both parties, which largely revolved around the conditions of BC's residence and the necessity of these conditions for his care.
After considering the evidence and the statutory provisions, the Court concluded that BC's detention, subject to the conditions of restricted movement, did not amount to an unlawful deprivation of his liberty. The Court held that the conditions were necessary for BC's care and protection, as intended by the legislative framework. The Court also noted that the conditions did not violate BC's rights under the Mental Health Act 2009 (SA). Consequently, the application for habeas corpus was dismissed.
The Court's final orders were that the application for judicial review be dismissed and that the application for a writ of habeas corpus be dismissed. The Court did not find that BC had been unlawfully detained or that his rights under the Mental Health Act 2009 (SA) had been violated.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: STANLEY J
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