LE v The Public Advocate

[2021] SASCA 55

Supreme Court of South Australia

(Court of Appeal: Civil)

LE v THE PUBLIC ADVOCATE

[2021] SASCA 55

Reasons of the Honourable Justice Livesey  (ex tempore)

1 June 2021

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

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES

By a notice of appeal filed on 16 June 2020, the applicant seeks orders in the nature of certiorari pursuant to s 17 of the Supreme Court Act 1935 (SA), quashing various orders made by the South Australian Civil and Administrative Tribunal (the Tribunal) in relation to her father during 2019.

Those orders were superseded by orders made by the Tribunal on 23 February 2021.

The applicant’s appeal is confined to the orders made in 2019.

Held (per Livesey JA), striking out the notice of appeal pursuant to r 212.5(2)(b) of the Uniform Civil Rules 2020 (SA):

1.      Apart from any other issue, there is no utility in the proposed appeal because any challenge to the orders made in 2019 will not affect the orders made in 2021.

2.      The appeal is misconceived. There is no prospect that the applicant will be given leave to     appeal.

Supreme Court Act 1935 (SA) s 17; Uniform Civil Rules 2020 (SA) r 212.5(2)(b), referred to.

LE v THE PUBLIC ADVOCATE

[2021] SASCA 55

Court of Appeal – Civil: Livesey JA

1. In this matter the applicant, LE, by a notice of appeal filed on 16 June 2020, challenges a number of orders made in the South Australian Civil and Administrative Tribunal (SACAT) with respect to her father, DE.  Ultimately, the orders sought by the applicant are orders in the nature of certiorari pursuant to s 17 of the Supreme Court Act1935 (SA), quashing various orders made in the SACAT on 2 September, 3 October, 14 November and 2 December 2019.

2. When this matter was first heard by Doyle J last year, he pointed out to LE some of the difficulties confronting her appeal.  That resulted in a new proceeding which was commenced in the name of DE seeking relief in the nature of habeas corpus.  It is not presently necessary to go into any detail about that proceeding.  DE was represented and, after a number of attempts at a mediated resolution, as well as hearings in this Court, that proceeding was discontinued on 28 May 2021.

3. Today, LE presses her original notice of appeal.  She requires leave to appeal. In addition, the orders the subject of the notice of appeal have been overtaken by orders made in the SACAT on 23 February 2021. 

4. When this was pointed out to LE, she was given an opportunity to consider her position and respond.  LE argued that her father had been placed on the drug Mirtazapine without his knowledge or consent and that, effectively, he had been restrained by that drug. She argued that her father had been under the influence of that drug when undergoing capacity assessments ordered by SACAT for the purposes of the review in that Tribunal.  She argues that the orders made by the Member on 23 February 2021 are therefore susceptible to challenge.

5. When I reminded LE that the orders the subject of her appeal did not include the orders made on 23 February 2021, she repeated the information that I have just described regarding the effect of the administration of the drug upon her father.

6. In an affidavit filed in this Court on 10 March 2021, LE deposes that, during the course of the hearing in the Tribunal before the orders were made on 23 February 2021, she requested that the presiding Member make an order noting the dishonesty of the Public Advocate in not disclosing to SACAT the fact of the administration of Mirtazapine. When the Member declined, she asked that that be noted in the findings made by the Member. That too was declined.

7. In all of these circumstances, it is clear to me that this proposed appeal is now misconceived and lacks utility.  Quite apart from any other issue, the proposed appeal seeks to challenge a number of orders made in the Tribunal during 2019 which have been overtaken, at least, by a number of orders made in the Tribunal on 23 February 2021.  Challenging the 2019 orders will not affect the 2021 orders.  There is no prospect that the applicant will be given leave to appeal. 

8. Because the appeal is misconceived I have determined that it is appropriate to strike out the notice of appeal pursuant to rule 212.5(2)(b) of the Uniform Civil Rules 2020 (SA).