The Public Advocate v C, B

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.