Joanne Darcy by her Tutor Dianne Aldridge v State of New South Wales [2012] HCATrans 191

[2012] HCATrans 191

[2012] HCATrans 191

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S23 of 2012

B e t w e e n -

JOANNE DARCY BY HER TUTOR DIANNE ALDRIDGE

Applicant

and

STATE OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 AUGUST 2012, AT 12.51 PM

Copyright in the High Court of Australia

MR C.J. BIRCH, S.C.:   May it please the Court, I appear with my learned friend, MS K. A. EDWARDS, for the applicant.  (instructed by Public Interest Advocacy Centre)

MS S. NORTON, S.C.:   If it please the Court, I appear with my learned friend, MS J.L. BOYD, for the respondent.  (instructed by Crown Solicitor (NSW))

HEYDON J:   Yes, Mr Birch.

MR BIRCH:   Your Honours, the special leave question, in our submission, can be put this way.  We ask whether a public officer can be found to have exercised a power in a particular fashion tacitly where they have made clear and unequivocal public announcements that they have exercised it in the opposite fashion or the opposite direction. 

HEYDON J:   It is a factual question.  That may not be about a bar to success, but it sounds a factual question.

MR BIRCH:   We say it is not a factual question and we say that for two principal reasons.  We say firstly that the question about the exercise of power ought not to even be approached by asking whether there could or was a tacit exercise of the power.  We say that the approach of the Court of Appeal in asking whether there had been a tacit exercise was an inappropriate question in regard to exercise of power by a public official.

BELL J:   Is one difficulty with this that the proceedings were proceedings brought by way of a claim for false imprisonment.  We are not in the area of some other form of action which might take up issues as to whether the guardianship - or the Public Guardian was correctly exercising the Public Guardian’s statutory powers or something of that character.  For the purposes of false imprisonment, do you challenge the conclusion that the person having the right to determine where the applicant would reside was the Public Guardian?

MR BIRCH:   We do not challenge that, but what we say though is that there is an essential step in any finding that there had been a lawful justification for the detention.  After all, we had established detention to the satisfaction of the Court of Appeal.  It hinged on whether the defence of justification was made out.  That was expressed by the Court of Appeal as whether there had been consent given by the Public Guardian.  In our submissions we have taken issue with even expressing the question in that way.

We say there could only have been a lawful justification if there had been an exercise by the Public Guardian of the power conferred under the Guardianship Tribunal order to determine where Ms Darcy should reside, and the primary question should have been whether there was a determination made under that order such that it could be said that the Public Guardian had altered Ms Darcy’s rights appropriately and lawfully so as to require her to reside at Kanangra.

Then we say there is an important legal question raised because firstly the exercise of a power of that sort under the guardianship order simply cannot be done in the tacit fashion that was described by the Court of Appeal.  Then we say the second important question is this.  Where the decision‑maker has clearly and expressly, emphatically announced that they have made a decision in a particular fashion then, in that case also, there is not scope to find they have actually made the opposite decision.

Perhaps if I could go quickly to the order itself.  This is found at page 61 in the application book.  The order is an order of the Guardianship Tribunal exercising powers under the Guardianship Act.  Commencing at the top of page 61, the judgment of Justice Whealy set out the critical order, which was order 5:

The guardian shall have the following functions in relation to Ms Joanne Darcy:

(a)       Accommodation

To determine where Ms Joanne Darcy may reside.

So we say this.  We say what was called for was a determination and a determination has to be a rational, deliberate act by the decision‑maker.  The decision‑maker has to engage in the usual exercise that anyone exercising public power is required to do.  They have to consider the relevant considerations, weigh them up and then reach their conclusion.

I will look at this a little bit more closely in a moment, but the evidence showed that there had been no express determination by the Public Guardian.  If I turn to page 130 in the application book, at subparagraph (2) on that page of Justice Whealy’s judgment he said:

While it is true that the Public Guardian never made an express determination that Ms Darcy should live at Kanangra, it is clear that it did not determine that she should live elsewhere.

Now, we say one should always be alert when one uses these sorts of double negatives.  After all, the fact that they did not make a determination that she not live elsewhere simply does not cover the gap between not having made an express determination that she live at Kanangra and the need for them to have done so for there to have been a proper lawful justification.

BELL J:   If one goes to the preceding page in the application book, page 129, paragraph 184, dealing with the officer who Justice Whealy characterised as taking a more aggressive, as it were, stance on behalf of the applicant, his Honour notes that in paragraph 17 of her affidavit she had:

made it clear that she “had no option but to allow Joanne to remain at Kanangra”.

MR BIRCH:   Well, what she was conceding was that she acquiesced in a state of affairs that had been created by other arms of government.  There was no action taken by the Public Guardian which caused Ms Darcy to reside there.  What his Honour went on to say in paragraph 184 of course towards the end of that paragraph was this:

It is fair to say that thereafter the Public Guardian never disengaged from this position of tacit approval.  With its public face, the Public Guardian continued to assert that no consent had been given but, in reality, it permitted Ms Darcy to remain at Kanangra while the battle for funding continued.

Now, our submission is this, that an acquiescence and permitting her to remain cannot still be a determination under order 5 of the orders that were made by the Tribunal.  One way of testing it is this, and this is where in our submission there is an ambiguity in the way the Court of Appeal approached it.  This concept of tacit consent can mean two things.  It could mean that to an observer or to a party dealing with the Guardian they could have reasonably believed or legitimately believed that consent had been given, but that would not be sufficient.  What was required here was that there had been an actual determination.

So when one looks at this phrase “tacit consent”, what one has to ask is, could there be a tacit determination by the Public Guardian?  The Public Guardian very clearly and unequivocally said to a number of other public officials it was not consenting and it would be an extraordinary thing – no one suggested, for example, that these officials were dissembling or that they were consciously saying something false when they uttered the statements that they had not consented ‑ ‑ ‑

BELL J:   Well, I think Justice Whealy’s conclusion was that they were advocating on the applicant’s behalf, endeavouring to use their best efforts in promoting her welfare by encouraging another arm of government to provide the funds to meet her unusual housing requirements.  But in the meantime, as I read his Honour’s findings, they accepted that she remain at Kanangra for want of any reasonable alternative.

MR BIRCH:   Well, they put on an affidavit in the hearing of the matter in which they sought in that affidavit to explain what they had meant by the statements they had made.  The statements they had made though were statements they had made to government officials and to the Guardianship Tribunal back when Ms Darcy was at Kanangra and one should construe those public statements, we say, in the usual fashion and one should be hesitant to allow a public official to say, “Well, I said very clearly and unequivocally I wasn’t consenting but I now seek to take away or subtract from those statements by my ‘after the event’ explanation”.

BELL J:   But, there was evidence that in the past people had been removed from Kanangra, so if you were running Kanangra and you knew the Public Guardian was the person responsible for the determination as to whether Ms Darcy should remain at Kanangra and the Public Guardian never took any action to remove her, you might nonetheless be susceptible in damages for falsely imprisoning her.

MR BIRCH:   Well, this is not the issue upon which it turned.  For example, there was nobody called from the Department of DoCS to say I had an honest and reasonable believe at all relevant times that the Public Guardian had consented and, in fact, the evidence showed – if your Honours go to page 90 of the application book, from the preceding page, at the bottom of page 89 you will see that in 1999 the Guardianship Tribunal renewed its orders and then in doing so it gave some reasons.  At page 90 at point 20, the Tribunal said that Ms Henry, who was a representative, not of the Guardian, but of DoCS:

noted that she had not been aware that ‘consent’ was required for placement.  The Public Guardian had made it very clear that they did not consent to Ms Darcy’s placement at Kanangra.  This Tribunal looks forwards to this issue being clarified and a timetable for an exit plan established.

Then at paragraph 89, just below, this is what we say is the clearest possible statement.  Ms Davidson, who was the officer of the public guardian with responsibility for Ms Davidson, wrote to the DoCs case officer and said that:

The Public Guardian has been given functions of Accommodation, Health Care, Medical and Dental Consents.  The accommodation function means that it is a legal requirement that the Public Guardian consents to where Ms Darcy may reside.  The Public Guardian has not previously consented . . . and it is against the Public Guardian’s policy to provide consent for a person under guardianship . . . unless there is an exit plan in place -

So if I just stop there for a moment, what the representative of the Public Guardian is saying is that if I have to make a rational determination under order 5 of the Tribunal’s reasons, the determination that I would be inclined to make would be not to consent to this because this is against our policies which we have formed over a long period of time, and then she says:

the Public Guardian understands that Narelle Henry is currently developing an exit plan.  In view of this, the Public Guardian consents to Ms Darcy residing at Kanangra until Monday 17 August 1998.

So there is a consent given on 23 June 1998 for a period of a few weeks and then over the page in page 91 of the application book, what happened was the exit plan did not arrive and the Public Guardian wrote back and in unequivocal terms said, well, the consent is now at an end, just below point 5 on page 91 of the application book:

The Public Guardian does not consent to Ms Darcy being accommodated at Kanangra and requests that arrangements be put in place for Ms Darcy to return –

Now, when one asks then how it was that the Public Guardian tacitly consented, we say firstly it is the wrong question.  The question is had there been an exercise of power under order 5 of the Tribunal orders and we say well, how could one find there had been a tacit exercise of the power under the orders?  The Public Guardian had said, well, we would not make a determination in favour of Kanangra, it would be against our policies, and they have said we have never done it up to this date, we do it now, and then six or eight weeks later they say we no longer continue that determination.

So, there cannot be, we say, any room at all for a finding that there has been a determination under the order.  There is no determination under the order.  Then it is not important whether DoCs officers in good faith believed that Ms Darcy was there with the consent of the Guardian because it is not some sort of an estoppel case or whether DoCs officers had a mistaken but reasonably held belief but, in any event, we say there would not even be room for that because the letters from the Public Guardian’s office were so absolutely unequivocal that they left no scope for any DoCs officer to be mistaken about the situation that they were in.

HEYDON J:   They certainly did not prefer Kanangra, but they presumably preferred Kanangra to gaol or sleeping under bridges or something like that.

MR BIRCH:   Your Honour, this is, in one sense, the crux of it.  There is a great temptation in a matter like this to reason pragmatically, if I can put it that way, and there is more than a few comments of both the trial judge and the Court of Appeal suggesting that what other options were there in the circumstances.  The fact, however, is this, that the Court of Appeal found that she had been detained and there had to be a lawful justification for that detention and it should not ‑ ‑ ‑

BELL J:   The person to make that justification was the Public Guardian and the Court of Appeal in the circumstances identified moments ago by the presiding judge tended to accept as a matter of fact that those responsible for her care had consented to her continuing to remain at Kanangra notwithstanding that it was not their preference in circumstances where she would have otherwise been under a bridge or in Mulawa.

MR BIRCH:   The way, in my submission, one can test whether they had made that – there had to be a determination.  It was not simply enough to say the Guardian had acquiesced in a state of affairs.  If the Guardian had not exercised its power, if the Guardian had held back from doing what the order 5 permitted it to do then there just, in our submission, was not a lawful justification even if it might have been from a pragmatic viewpoint, the best thing, all things considered, for Ms Darcy to be there.

What I would urge the Court to do is this.  One can test it this way.  If one had turned up in the middle of her six and a half years and said, “How does this woman come to be here?  By what lawful authority is she being held at this institution?”, a question that does not seem to have been very cogently addressed by the people who were in charge of the Kanangra institution, incidentally, but if one had said, “What was it?” if you had worked your way through the legal framework it would have had to have been, “Well, she could only be lawfully here if the Public Guardian has determined that this should be her residence” and then when you looked at the public record it clearly and unequivocally said the Public Guardian had not consented.  One ought to have concluded that she had not therefore been lawfully brought and held there.

What the Court of Appeal’s judgment has done is to say that when one considers all of the evidence, looking back on the six and half years, one can retrospectively infer that there had to be some form of tacit consent by the Public Guardian but we say that is insufficient.  In a matter which so critically involves liberty one ought to be able to always put one’s finger on the legal rule which justifies that detention, as is usually the case in regard to someone who is serving a custodial sentence or detained under the Mental Health Act, one would not go to a hospital where one has people detained under mental health legislation and ask to see why they are held and be told that there is not any particular order, warrant, direction or the

like which unequivocally establishes it, but that is essentially what the Court of Appeal found.

HEYDON J:   What do you say about the bottom of page 130 of the application book where Justice Whealy points out that:

The Public Guardian provided consent for each and every occasion when Ms Darcy left Kanangra . . . Each of these consents was given on the basis that Ms Darcy would be required to return to Kanangra –

That is not tacit.

MR BIRCH:   Well, what they sought was permission for her to go to places.  The Public Guardian gave permission for a number of things to happen, I think the Public Guardian also consented to some medical treatments.  What we say is this, that they made unequivocally clear that they were not consenting to and had not determined where she should reside. The fact that they sought some consent to some matters simply cannot cover the gap to fill the need for a determination that she should reside at Kanangra, and after all, what the Public Guardian was saying in effect was, well, it is obviously good that she should have some respite with her mother or on a holiday, and if you want permission from us to do that, take her, but we are not consenting to her residing at Kanangra.

Another way of testing it is this, in our submission.  What could the Public Guardian have done more than it did do if it did want to unequivocally not consent and avoid any findings of tacit consent on its part?  In our submission, they have gone as far as they need to go and they did not have to physically remove her if they chose not to.  They simply had to announce what their determination was.

HEYDON J:   I see the light.

MR BIRCH:   Yes.

HEYDON J:   We need not trouble you, except for one thing in a moment, Ms Norton. 

We are of opinion that the application for special leave should be dismissed on the grounds that there are insufficient prospects of successfully challenging the reasoning of the Court of Appeal.  The applicant does not want a costs order made against him, Ms Norton.  What is your position in relation to costs?

MS NORTON:   I was told this morning that there is some news that the applicant now has legal aid and that there was going to be an amendment to that part of their submissions.

MR BIRCH:   What I should say is this, your Honour.  When we made the application we did not have legal aid.  We have it now.  The Commission indemnifies her up to a sum.  That sum is $15,000.  The cap provided by the State Act under section 47 is not effectual in this Court for the Bass v HomeFund Case reasons.

HEYDON J:   Let me just ask this question.  Do you oppose an order for costs in favour of the respondent? 

MR BIRCH:   I do, for the reasons that we put in the submission, but I need to inform the Court of those additional factors and our exposure is certainly mitigated by the existence of the grant.

MS NORTON:   I think in those circumstances, your Honour, I could indicate that we would not seek to recover anything more than whatever the limit has been set by Legal Aid.

HEYDON J:    Then we order that the applicant pay the costs of the respondent and note what counsel for the respondent has just said.

MS NORTON:   If the Court pleases.

AT 1.13 PM THE MATTER WAS CONCLUDED