Le v The Office of the Public Advocate & Ors(No 2)

[2021] SASCA 132

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

LE v THE OFFICE OF THE PUBLIC ADVOCATE & ORS (No 2)

[2021] SASCA 132

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)

4 November 2021

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES

HEALTH LAW - GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY - GUARDIANSHIP AND SIMILAR APPOINTMENTS - OTHER MATTERS

ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT

By a notice of appeal dated 16 September 2021, the applicant challenges a decision made by the President of the South Australian Civil and Administrative Tribunal (the Tribunal) refusing an extension of time to file proceedings and dismissing internal review proceedings of a guardianship and administration order made on 24 February 2021. The applicant complains about the time it took for reasons to be delivered and that there were a number of issues concerning the medical evidence which warranted and explained the delay in instituting a review, and that an extension of time was just.

Held (by the Court), refusing permission to appeal:

1.There is no basis upon which to challenge the approach of the Tribunal.

2.It is not in the interests of justice to grant leave to appeal. There was little utility in the Tribunal granting the applicant an extension of time to apply for review in circumstances where it remained open to the applicant and the protected person to make a fresh application on whatever evidence may then be available.

South Australian Civil and Administrative Tribunal Act 2013 (SA) s 70(2), s 71(1)(a); Guardianship and Administration Act 1993 (SA) s 30, 33, 54(1) s 67, referred to.

Jackson v Lepp Investments (2016) 125 SASR 1; Pix v SA Housing Trust (2016) 125 SASR 10, considered.

LE v THE OFFICE OF THE PUBLIC ADVOCATE & ORS (No 2)
[2021] SASCA 132

Court of Appeal – Civil: Livesey P, Doyle and Bleby JJA

THE COURT:

Introduction

1. By a notice of appeal dated 16 September 2021, the applicant challenges a decision by President Hughes made on 1 September 2021 in the South Australian Civil and Administrative Tribunal (the Tribunal) refusing an extension of time to file proceedings and dismissing internal review proceedings of a guardianship and administration order made on 24 February 2021.

2. The application is brought pursuant to s 71(1)(a) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (the Act).  Permission to appeal is required.

3. For the reasons that follow, it is not in the interests of justice to grant leave to appeal and the application is dismissed.[1]

   [1]     See generally Jackson v Lepp Investments (2016) 125 SASR 1, [19]-[20] (Parker J) and Pix v SA Housing Trust (2016) 125 SASR 10.

   The appeal grounds

4. The appeal grounds and the grounds justifying the grant of leave run to nearly three and half pages.

5. It is sufficient for present purposes to outline that the applicant complains about the time it took the relevant member to write reasons and then further reasons after making an order, that there are a number of issues concerning the medical evidence which warranted and explained any delay, and that an extension is said to be just.

   The reasons of President Hughes

6. In the course of very extensive reasons, the President explained why an extension of time was refused.

7. There are essentially four points made by the applicant.  The first three comprise complaints made by the applicant, and the fourth concerns the unique nature of the jurisdiction before the Tribunal.

8. By the first and second complaints, the applicant complains that after the decision, initial reasons were delivered, and that they were later supplemented. On any view of s 67 of the Guardianship and Administration Act 1993 (SA), the time within which to institute a review as prescribed by s 70(2) of the Act runs from the date of “the making of the decision”, not the date reasons are provided. The President had regard to the relevant considerations and rejected this as a basis for an extension. This was not a case, for example, where a review was instituted but then later supplemented with the benefit of supplementary reasons. There is no basis to challenge this aspect of the decision.

9. The third complaint concerns the assessment undertaken of the medical evidence which was before the Tribunal.  To a significant extent, that evidence was obtained after the order was initially made on 24 February 2021.  There is no basis upon which to challenge the assessment made of that evidence. 

10. That brings us to the fourth point.  A matter weighed by the President was that it remained open to the applicant to seek a review and revocation or variation of the guardianship and administration order on whatever evidence may then be available.[2] The protected person may bring an application at any time, whereas a person with a proper interest can bring an application if that person can show changed circumstances.[3]

    [2]     See ss 30, 33 and s 54(1)(b) and (c) of the Guardianship and Administration Act 1993 (SA). Cf. s 57 of the Guardianship and Administration Act 1993 (SA).

    [3]     See s 33(1a) of the Guardianship and Administration Act 1933 (SA).

11. In those circumstances, there was little utility in granting the extension of time because it remains open to the applicant to make a fresh application on whatever evidence may then be available. That is an aspect of the unique jurisdiction exercised by the Tribunal.

    Conclusion

12. We accept that the protected person is distressed by his present predicament and wishes to leave his accommodation in a dementia ward and go home. However, there are issues about that course that need not now be addressed, including whether there is an alternative guardian and whether adequate care can be provided at home. These can all be addressed on a fresh application. These are not matters that we have power to address on this application. We can only emphasise that there is no barrier to an application being made immediately.

13. In all of these circumstances, it is not in the interests of justice to grant permission to appeal and the application is refused.