The Public Advocate v C, B (No 2)

[2019] SASCFC 78

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

THE PUBLIC ADVOCATE & ORS v C, B (No 2)

[2019] SASCFC 78

Judgment of The Full Court

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

4 July 2019

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL MATTERS

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - RECOVERY OF COSTS - ENTITLEMENT

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - TAXATION AND OTHER FORMS OF ASSESSMENT

Application for costs.  This Court dismissed an appeal from a decision of a single Judge of the Supreme Court that BC was unlawfully detained in the locked ward of an aged care facility by reason of a decision of the Public Advocate, and that a writ of habeas corpus should follow.

The Public Advocate, BMC and DC now seek various orders as to costs.

Held :

1.  In relation to the appeal, the substantial risk that DC faced in losing judgment in his favour if he did not instruct counsel to appear is to be weighed against the fact that it was unlikely that counsel would have primary carriage of the argument on appeal.

2.  Balancing these competing considerations, the Public Advocate is to pay 50 per cent of DC's costs of representation on the appeal.

3.  The costs of the notice of contention are not likely to be substantial, and it is undesirable to make orders requiring a separate taxation.

4.  DC’s application for costs against BMC on her failed application for permission is dismissed. The Court can only proceed on the basis that both DC and BMC were genuinely concerned about the proper care of BC, and should not aggravate the disharmony between DC and BMC.

Guardianship and Administration Act 1993 (SA) 29, referred to.

THE PUBLIC ADVOCATE & ORS v C, B (No 2)
[2019] SASCFC 78

Full Court:       Kourakis CJ, Kelly and Hinton JJ

1. THE COURT:      This is an application for costs.

2. On 24 May 2019, this Court dismissed an appeal against a declaration made by a Judge of this Court that BC had been unlawfully detained in a locked ward of the Barossa Village aged care facility, and against the Judge’s decision to issue a writ of habeas corpus. This Court confirmed the decision of the Judge that an order of limited guardianship made pursuant to s 29 of the Guardianship and Administration Act 1993 (SA) (the Act) did not empower the Public Advocate to authorise any detention of, or trespass against, BC.

3. BC suffers from dementia but was not represented by a litigation guardian at the trial or on appeal.  The respondents to BC’s action were the Public Advocate, his wife BMC, the South Australian Civil and Administrative Tribunal (SACAT) and his son DC.  The Public Advocate had directed that BC be accommodated in the locked ward pursuant to its appointment as BC’s limited guardian with respect to his accommodation, by an order made by SACAT (the guardianship order).  BMC was joined both because of her interest as BC’s wife and because the guardianship order appointed her as BC’s limited guardian for his health care.  The summons issued by BC also sought an order quashing the guardianship order on the grounds that it was ultra vires, in that it was made without affording BC and DC natural justice or was otherwise unreasonable and irrational.  The Judge dismissed that application because there were extant review proceedings of the guardianship order before SACAT.  Finally, the summons sought an order quashing the Public Advocate’s direction that BC be kept in the locked ward on the ground that it was contrary to the principles mandated by the Act.  The Judge did not need to decide that issue, having decided that the Public Advocate had no power at all to detain.

4. The Judge ordered that the Public Advocate pay 85 per cent of BC’s costs of the proceedings but refused to make an order for costs in DC’s favour.

5. The appeal against the declaration and issue of the writ of habeas corpus was brought by the Public Advocate.

6. On 14 January 2019, BMC applied for permission to appeal against an interlocutory decision of the Judge, made on 10 December 2018, refusing to appoint the Public Advocate as BC’s litigation guardian.  Notwithstanding BC’s dementia, the Judge was not satisfied that medical reports on which BMC relied showed that BC did not have an understanding of the legal issues raised, and the practical implications of, the proceedings.  The trial commenced on 13 December 2018 and judgment was delivered on 18 December 2018.  BMC’s application for permission to appeal against a decision not to appoint a litigation guardian was argued contemporaneously with the substantive appeal.  BMC was refused permission to appeal because:

   ·no arguable error was demonstrated;

   ·no question of principal was raised; and

   ·there was no utility in the application, the Court having heard the argument on the substantive appeal.

7. Both BC and DC filed notices of alternative contention supporting the orders of the Judge on the grounds that the Judge ought to have gone on to find, assuming the Public Advocate was empowered to detain BC, that the exercise of the power miscarried because the Public Advocate failed to have regard to the considerations mandated by the Act.   

8. In his written submissions filed on 4 February 2019, BC accepted that the question would have to be remitted to Stanley J if his appeal otherwise failed.  In his written submissions, DC contended that this Court should determine the question, but on the hearing of the appeal, agreed that the question would have to be remitted.

9. The Public Advocate, BMC and DC dispute the costs orders which should be made on the appeal.  DC seeks the following orders for the costs of the appeal:

   1.1.that the first appellant pay the fourth respondent’s costs of its unsuccessful appeal;

   1.2.that the second appellant pay the fourth respondent’s costs of the unsuccessful application for permission to appeal; and

   1.3.that there be no order for costs on the fourth respondent’s notice of contention.

10. On the other hand, the Public Advocate seeks the following orders:

    2.1.no costs order should be made in favour of the fourth respondent. Justice Stanley accepted that the fourth respondent is essentially in the position of an intervener and should not be entitled to costs where his position was wholly supportive of the first respondent’s position and largely echoed the submissions of the first respondent.

    2.2.the fourth respondent should pay the appellant’s costs of responding to his notice of contention which was unnecessary in the circumstances where the first respondent had already filed a notice of contention and had conceded that the notice should be remitted to Stanley J in the event that the appellant’s appeal were allowed.

11. We start by considering the relevant interest of DC in the proceeding.  DC was properly joined in the first instance proceeding because he was aggrieved about BC’s detention in the locked ward, which limited his access to his father.  He therefore had a sufficient interest in the residential arrangements of his father to have standing in the proceeding concerning the legality of his detention.  As BC’s son, he also had standing in the review of the guardianship order on the ground that he was denied procedural fairness.  However, the Judge found that BC primarily had the carriage of the first instance proceedings, as he was, of course, most directly affected by what the Court found to be his unlawful detention.  BC was competently represented at trial by experienced senior and junior counsel and experienced solicitors.  DC’s interests did not vary in any significant degree from his father’s.  However, his participation in the trial was warranted lest there be the appointment of a litigation guardian who did not wish to pursue the proceedings, or a change in BC’s instructions.  Moreover, even though it transpired that DC did not add significantly to BC’s evidence or submissions, DC could not be certain that he would not be called upon to play a more significant role.

12. Stanley J found that DC’s submissions merely echoed BC’s submissions and, having regard also to DC’s failure on the issue as to whether the SACAT order should be quashed, made no order for costs in DC’s favour.  It was within the discretion of Stanley J to so order.  However, in the exercise of the costs discretion, we would have attached greater weight to DC’s interest in the proceedings.

13. The order and declaration having been made, DC had a real interest in maintaining the judgment.  As a party below, he was a necessary respondent to the appeal.  Moreover, BMC had made an application appealing the Judge’s decision refusing to appoint the Public Advocate as litigation guardian.  Even though permission was ultimately refused, DC could not be certain how that application might affect the making of submissions on the primary appeal. 

14. It is not surprising that, on appeal, DC’s submissions again largely echoed those made by BC.  However, DC would have taken a substantial risk of losing the judgment in his favour if he did not, at the very least, instruct counsel to appear on the appeal.  On the other hand, it must have been clear to DC that it was unlikely that his counsel would have the primary carriage of the argument on appeal.  Balancing the competing considerations as best they can be, the Court orders that the Public Advocate pay 50 per cent of DC’s costs of representation on the appeal.  In making that order, we have taken into account the Public Advocate’s application for an order against DC on his notice of contention.  The costs on the notice of contention are not likely to be substantial.  It is undesirable to make orders requiring a separate taxation.

15. We dismiss DC’s application for costs against BMC on her failed application for permission.  The Court can only proceed on the basis that both DC and BMC were genuinely concerned about the proper care of BC.  It is regrettable that they have fallen into sometimes acrimonious dispute.  That disharmony should not be aggravated by an award of costs.