SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Application)
H LTD v J & ANOR
[2010] SASC 176
Judgment of The Honourable Justice Kourakis
15 June 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - OTHER MISCELLANEOUS OFFENCES AND MATTERS
HEALTH LAW - MISCELLANEOUS MATTERS
HIGH COURT AND FEDERAL COURT - HIGH COURT OF AUSTRALIA - ORIGINAL JURISDICTION - MATTERS IN WHICH HIGH COURT HAS ORIGINAL JURISDICTION - COMMONWEALTH AS A PARTY
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - DECLARATIONS - JURISDICTION
First defendant a resident in a high care unit of plaintiff’s facilities – first defendant informed plaintiff of intention to end life by ceasing to take any food, water or medical treatment necessary for particular conditions suffered – first defendant proposes to give plaintiff direction not to provide nutrition, hydration and insulin - plaintiff seeks declarations which will allow it to determine the extent to which it can lawfully comply with direction of first defendant to be given to achieve stated intention – Commonwealth opposes directions sought with respect to consequences of the Aged Care Act 1997 (Cth) on the proposed course of conduct – Attorney-General (SA) supports directions sought concerning operation of certain provisions of Criminal Law Consolidation Act 1935 – whether there is a “matter” before the Court – whether Court has jurisdiction to make negative declarations contingent upon circumstances which may change – whether first defendant has common law right to refuse food, water and medical treatment – whether Aged Care Act 1997 (Cth) alters common law position – whether Court should make declarations sought.
Held: first defendant has asserted a right to lawfully embark upon proposed course – plaintiff refrained from undertaking to comply with first defendant’s direction – therefore there is an underlying matter sufficient to enliven Court’s jurisdiction and to justify the making of declarations – first defendant has common law right to refuse food, water and medical treatment – provisions of Criminal Law Consolidation Act 1935 apply where there is a duty to provide food, water or medical treatment - duty negated by proposed direction - Aged Care Act 1997 (Cth) impliedly adopts common law position without altering it – declarations made in substantially the same form as those sought by plaintiff.
Aged Care Act 1997 (Cth) s 2.1, 53.2, 54.1, 56.1, 65.1, 96.1; Constitution (Cth) s 73, s 75, s 76, s 77; Criminal Law Consolidation Act 1935 (SA) s 13A, s 14, s 23, s 24, s 29, s 30; Guardianship and Administration Act 1993 (SA) s 25, s 59; Judiciary Act 1903 (Cth) s 38, s 39; Supreme Court Act 1935 (SA) s 31; Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 6, s 7, s 8, s 16, referred to.
Ainsworth v Criminal Justice Commission (1993) 175 CLR 564; Brightwater Care Group (Inc) v Rossiter [2009] WASC 229; Hunter and New England Area Health Service v A (2009) 74 NSWLR 88, applied.
In…
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- AGLC
- H Ltd v J [2010] SASC 176
- Case
- [2010] SASC 176
- Decision Date
CaseChat Overview and Summary
The Court considered the jurisdictional issues first, noting that the federal jurisdiction conferred by s 39(2) was limited to matters falling within the limits of the jurisdiction of the State courts. The Court observed that it had the jurisdiction exercised by the Courts of Chancery and the King’s Bench before the Judicature Act reforms. Chancery always exercised a jurisdiction with respect to the observance of laws, the breach of which would result in a public mischief. The Court of King’s Bench exercised a criminal jurisdiction. It also exercised a supervisory jurisdiction over the administrative acts of public officers; the power of the Commonwealth to impose sanctions on H Ltd may be affected by these declarations. Moreover, this Court is a superior court. Accordingly, if these proceedings raised a matter, it was a matter that fell within the limits of the jurisdiction conferred on the Court by the Supreme Court Act 1935 (SA). The Court concluded that there was a matter in which a declaration should be made. The Commonwealth argued that there was no matter before the Court and that no declaration should be made. However, the plaintiff, the first defendant and the State submitted to the contrary. The Court found that the proposed course of action by the first defendant gave rise to an existing controversy over legal rights and obligations.
The Court considered the issue of whether the first defendant had a common law right to refuse food, water, and medical treatment. It concluded that the provision of sustenance against the first defendant's consent would constitute the commission of an offence. At the very least it would be a breach of the contractual relationship between the first defendant and the plaintiff, which could be inferred from the fact of her residency in a high care unit, even though the Court had not been informed of the financial arrangements that had been made. The Court considered the issue of whether the Aged Care Act 1997 (Cth) altered the common law position. The Commonwealth submitted that there was no existing controversy as to the status of past or future events. It also submitted that the circumstances in which the responsibilities embodied in the Principles and the Charter made pursuant to the Aged Care Act 1997 (Cth) may be applicable were too uncertain and subject to too many contingencies for there to be an existing controversy. The Court concluded that the Aged Care Act 1997 (Cth) did not alter the common law position. Finally, the Court considered whether it should make the declarations sought. It concluded that it should make the declarations sought, subject to certain conditions.
The Court made the following orders: (1) the plaintiff could lawfully refuse to provide nutrition, hydration, and insulin to the first defendant in accordance with her instructions; (2) the plaintiff could lawfully comply with the first defendant's instructions to be given to achieve her stated intention; (3) the Commonwealth could not impose sanctions on the plaintiff for refusing to provide nutrition, hydration, and insulin to the first defendant in accordance with her instructions; and (4) the Attorney-General for the State of South Australia could not prosecute the plaintiff for refusing to provide nutrition, hydration, and insulin to the first defendant in accordance with her instructions.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Finally, I observe that the federal jurisdiction conferred by s 39(2) is limited to matters otherwise falling “within the limits” of the jurisdiction of the State courts. This Court has the jurisdiction exercised by the Courts of Chancery and the King’s Bench before the Judicature Act reforms. Chancery always exercised a jurisdiction with respect to the observance of laws, the breach of which would result in a public mischief. The Court of King’s Bench exercised a criminal jurisdiction. It also exercised a supervisory jurisdiction over the administrative acts of public officers; the power of the Commonwealth to impose sanctions on H Ltd may be affected by these declarations. Moreover, this Court is a superior court. Accordingly, if these proceedings raise a matter, it is a matter which falls “within the limits” of the jurisdiction conferred on this Court by the Supreme Court Act 1935 (SA).Is there a matter in which a declaration should be made? The Commonwealth submits that there is no matter before the Court and that no declaration should be made. The plaintiff, the first defendant and the State submit to the contrary. The plaintiff submits that the course of action proposed by J gives rise to an existing controversy over legal rights and obligations. In particular the plaintiff’s obligation to provide food, hydration and insulin (sustenance) in the face of J’s proposed instructions is in question. J takes the position that the provision of sustenance against her consent would constitute the commission of an offence. At the very least it would in my view be a breach of the contractual relationship between J and the plaintiff, which I am prepared to infer from the fact of her residency in a high care unit, even though I have not been informed of the financial arrangements which have been made. The Commonwealth confines its submission to the declarations sought with respect to the Aged Care Act 1997 (Cth). It contends that there is no “existing controversy as to the status of past or future events”. The Commonwealth also submits that the circumstances in which the responsibilities embodied in the Principles and the Charter made pursuant to the Aged Care Act 1997 (Cth) may be applicable are at this stage too uncertain and subject to too many contingencies for there to be an existing controversy. Furthermore, it makes the submission that the power of the Secretary of the Department to impose sanctions on approved providers pursuant to s 65.1 of the Aged Care Act 1997 (Cth) is discretionary. The Attorney-General for the State of South Australia confines his submissions to the declarations sought with respect to the CLCA. He submits that there is a real and present controversy. Emphasis is placed on the fact that J has already executed an Enduring Power of Guardian pursuant to s 25 of the Guardianship and Administration Act 1993 (SA) instructing her guardians that in the event that she becomes mentally incapacitated she is not to be administered insulin or any other medication except for palliative purposes and that she is not to be provided with any nutrition or hydration.