BC v The Public Advocate & Ors

Link copied
Case Copied 33 min read

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,…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read BC v The Public Advocate & Ors and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2018] SASC 193
Decision Date

CaseChat Overview and Summary

This case involved an application for judicial review and an application for a writ of habeas corpus by BC, a patient detained at a facility under the provisions of the Mental Health Act 2009 (SA). The primary respondents were the Public Advocate, who is the legal guardian of BC, and his wife, who opposes the orders sought by BC. The matter was heard by the Supreme Court of South Australia. The central legal issue was whether BC's detention at the facility, subject to certain conditions, constituted an unlawful deprivation of his liberty. The key statutory provisions in question were those concerning the conditions of detention and the rights of individuals under the Mental Health Act 2009 (SA).

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

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The plaintiff is in the custody and control of the Facility, subject to any direction of the Public Advocate in relation to the plaintiff’s accommodation. On the hearing of this matter the Facility did not produce the plaintiff. The Facility was not joined to the proceedings. On 21 November 2018 the plaintiff served the application for judicial review upon the Facility. The Facility did not seek to be heard. On 17 December 2018, the Facility confirmed that it would abide any order or direction made by the Court. At all times the plaintiff was represented by Senior Counsel. In the circumstances I proceeded to inquire into the circumstances of the case without the physical production of the plaintiff to the Court. The evidence The plaintiff sought to rely upon a substantial body of affidavit evidence from:·Affidavit of BC dated 17 October 2018;·Affidavit of Brenton John Miegel dated 20 November 2018;·Affidavit of Brenton John Miegel dated 10 December 2018;·Affidavit of DC dated 21 November 2018;·Affidavit of DC dated 10 December 2018;·Affidavit of DC dated 12 December 2018;·Affidavit of Julia Ellen McGrath dated 21 November 2018; and·Affidavit of Julia Ellen McGrath dated 29 November 2018. The first defendant, the Public Advocate, adduced affidavit evidence from:·Affidavit of Paula Denise Stirling dated 30 November 2018;·Affidavit of Matthew Stuart Kowald dated 10 December 2018;·Affidavit of Barbara Ann Robertson dated 12 December 2018; and·Affidavit of Clare Frances Byrt dated 12 December 2018. The second defendant, the plaintiff’s wife, who opposes the orders sought, adduced affidavit evidence from:·Affidavit of Oliver Portway dated 6 December 2018;·Affidavit of BMC dated 12 December 2018; and·Affidavit of BRC dated 12 December 2018. There were a series of objections taken by the plaintiff and the fourth defendant to some of this affidavit evidence. At the hearing, I admitted some of this evidence over objection on the basis that the objections really went to the weight to be given to the evidence, or I admitted the evidence de bene esse. As it transpires, much of the evidence has proved to be irrelevant to the disposition of the matter. In the end, the issue of whether the plaintiff has been unlawfully detained substantially turns on a question of statutory construction. The relevant evidence satisfies me that the conditions under which the plaintiff resides at the Facility involve a restriction on his freedom of movement in relation to leaving the unit and the Facility unaccompanied. There is a locked door to the unit which can only be opened by entering a code on a keypad or swiping a card over an electronic device. These measures are intended to prevent the residents in the unit from leaving without permission and supervision. I accept that the Public Advocate directed the plaintiff reside at the Facility, knowing that these are the conditions of his residence at the Facility. I accept that the Public Advocate considers that these conditions are necessary for the plaintiff’s care and protection. Habeas corpus

Decision

Reasons for decision

STANLEY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: STANLEY J

Full text does not contain this section.