The Public Advocate v C, B

Case [2019] SASCFC 58

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

THE PUBLIC ADVOCATE v C, B

[2019] SASCFC 58

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Hinton)

24 May 2019

MENTAL HEALTH - GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS - OTHER MATTERS

STATUTES - ACTS OF PARLIAMENT - STATUTORY POWERS AND DUTIES - EXERCISE

TORTS - MALICIOUS PROCEDURE AND FALSE IMPRISONMENT - FALSE IMPRISONMENT

MENTAL HEALTH - GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS - APPOINTMENT

ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - HABEAS CORPUS - APPLICABILITY OF REMEDY

Appeal against a decision of a single Judge of the Supreme Court that BC, the respondent, was unlawfully detained in the locked ward of an aged care facility by reason of a decision of the Public Advocate, the appellant.

The appellant was appointed as limited guardian of the respondent for the purposes of his accommodation and lifestyle by the South Australian Civil and Administrative Tribunal (the Tribunal). The respondent is an elderly man with dementia of moderate severity, who, for the purposes of s 29 of the Guardianship and Administration Act 1993 (SA) (the Act), does not have mental capacity.

The issues to be determined concern:

1. whether the Act, in conferring the powers set out in s 32, impliedly abrogates the general law powers of a guardian to detain, and use other force, when assuming responsibility for the affairs of a protected person; and

2.  whether the conditional liberty occasionally granted to the respondent precludes a conclusion that he was unlawfully detained during such periods that permission to leave the locked ward was not given.

Held by Kourakis CJ (Kelly and Hinton JJ agreeing), dismissing the appeal:

1. Any restraint on liberty which can be imposed by an order of the Tribunal pursuant to s 32 of the Act cannot be lawfully authorised by a guardian acting under a limited or full guardianship order made pursuant to s 29. The words 'subject to this Act' in s 31 must be given full effect.

2. The order of the Tribunal made pursuant to s 29 of the Act placing the respondent under the limited guardianship of the appellant did not empower it to authorise the commission of the wrongs of false imprisonment or trespass against the person. The Judge was right to issue habeas corpus and make the declaration he made.

3.  The restrictions placed on the respondent constituted the torts of false imprisonment and/or trespass and were therefore unlawful unless otherwise authorised by law.  The Judge was right to find that the respondent's movement was restricted by his residence in the unit.

Guardianship and Administration Act 1993 (SA) s 5, s 29, s 30, s 31, s 32; Supreme Court Act 1935 (SA) s 17; Advanced Care Directives Act 2013 (SA) s 9, s 12, s 13, s 23, s 45, s 46, s 46A; Lunacy Act 1898 (NSW) s 172; Ordinance No 2 of 1847  ; Lunatics Act 1864 (SA); Supreme…

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AGLC
The Public Advocate v C, B [2019] SASCFC 58
Case
[2019] SASCFC 58
Decision Date

CaseChat Overview and Summary

The Public Advocate, as the applicant, sought permission to appeal against a decision of Stanley J made on 10 December 2018, which dismissed an application for the appointment of a litigation guardian for BC. This application was argued contemporaneously with a substantive judicial review proceeding that Stanley J heard and determined on 13 and 18 December 2018 respectively.

The central legal issues before the Full Court of the Supreme Court of South Australia were whether permission to appeal should be granted against the refusal to appoint a litigation guardian, and implicitly, the scope of a guardian's powers under the *Guardianship and Administration Act 1993* (SA) in relation to restraining a person's liberty. Specifically, the court considered whether an order made under s 32 of the Act could be lawfully authorised by a guardian acting under a limited or full guardianship order made pursuant to s 29, and whether a guardian might possess common law powers to restrain a person in emergency situations.

Kourakis CJ, with whom Kelly J agreed, refused permission to appeal on three grounds: the medical report lacked specific detail regarding BC’s understanding of the proceedings, meaning the appeal had limited prospects; no question of principle was involved; and there was no present utility in the application. Hinton J agreed with the Chief Justice that the appeal should be dismissed and that restraint on liberty imposed by an order under s 32 of the *Guardianship and Administration Act 1993* (SA) could not be lawfully authorised by a guardian under a s 29 order. However, Hinton J reserved for future consideration the question of whether a guardian might have common law powers to restrain a person in emergency situations to ensure their safety and wellbeing until an appropriate order could be obtained, noting the historical legislative framework for guardianship powers and the potential need for legislative clarity.

The appeal was dismissed.

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

BC’s wife, W, seeks permission to appeal against the decision of Stanley J made on 10 December 2018 dismissing her application that a litigation guardian be appointed. After dismissing the application Stanley J proceeded to hear the judicial review proceeding on 13 December 2018 and delivered judgment on 18 December 2018. The application for permission to appeal against the decision not to appoint a litigation guardian was argued contemporaneously with the substantive appeal. I would refuse permission to appeal for three reasons. First the medical report relied on in support of the application did not specifically address BC’s understanding of the substantive proceedings. The appeal would have limited prospects, therefore, because of the deficient evidential basis. Secondly no question of principle is involved. Thirdly, there is no present utility in the application.Conclusion For the above reasons I would dismiss the appeal. KELLY J: I agree that the appeal should be dismissed and that permission to appeal on W’s application should be refused. I agree generally with the reasons of the Chief Justice subject to the reservations expressed by Hinton J with which I also agree. HINTON J: I agree with Kourakis CJ that the appeal should be dismissed. I agree that any restraint on liberty that can be imposed by an order of the Tribunal pursuant to s 32 of the Guardianship and Administration Act 1993 (SA) cannot be lawfully authorised by a guardian acting under a limited or full guardianship made order pursuant to s 29. I would, however, reserve for another day the question of whether there are circumstances, for convenience described as emergency situations, in which the guardian may restrain a person subject to a guardianship order that does not expressly include power to detain under s 32, in order to ensure that person’s safety and wellbeing until such time as the appropriate order may be obtained. With respect to the exercise in statutory construction undertaken by the Chief Justice, I add; difficulty in discerning the content of the common law powers of a guardian is largely the result of the powers possessed by a committee of the person and a committee of the estate having been the subject of legislation in relation to the former for near on two hundred years and the latter over two hundred years in England and, in this country, since the early days of colonisation.[33] Accordingly, if there is a residual field of common law power to detain a person of unsound mind in emergency situations until such time as confirmation by order of this Court or the Tribunal can be obtained, it may be appropriate for the legislature to make as much plain. [33] See, for example, Phillips on Lunacy (1858, London); Shelford on Lunatics (1833, London); J H McClemens and J M Bennett, ‘Historical Notes on the Law of Mental Illness in New South Wales’ (1962) 4 Sydney Law Review 49. Lastly, the normative content of the common law rights to which the principle of legality applies is a fertile area for debate.[34] I would wish to hear argument before drawing any conclusion as to the extent to which those rights equate to the rights subject of the International Covenant on Civil and Political Rights[35] and the construction of the Covenant. That said, in this case, as Griffiths CJ said in McLaughlin v Fosbery, “in the interpretation of a Statute affecting personal liberty, supposition as to the intention of the legislature has no place”.[36] [34] Brendan Lim, ‘The Normativity of the Principle of Legality’ (2013) 37 Melbourne University Law Review 372; Dan Meagher, ‘The Common Law Principle of Legality in the Age of Rights’ (2011) 35 Melbourne University Law Review 449.[35] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).[36] (1904) 1 CLR 546 at 559.

Ratio Decidendi

Legal Principle Established

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