Z, J - [2012] SADC 81

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
In the Matter of THE GUARDIANSHIP AND ADMINISTRATION ACT 1993 (SA)
Z, J
[2012] SADC 81
Judgment of His Honour Judge Tilmouth, Assessor Dr A Usman and Assessor Ms L English
21 June 2012
ADMINISTRATIVE LAW
Appeal against the Decision of the Guardianship Board making a Level 2 Community Treatment Order for a period of 12 months. Initial CTO was made for a period of 5 months. This was appealed to the District Court on the basis of procedural unfairness and remitted back to the Board. The Board reheard the matter and made a further CTO of 12 months duration.
Held: Appeal allowed. Decision of the Board dated 16 February 2012 quashed. There was no power for the Board to make a further CTO in excess of 12 months in total. No order made for remission in the circumstances.
Mental Health Act 2009 s 16(1), s 16(3), s 16(4), s 16(5)(b), s 16(7), s 16(8), s 85; Guardianship and Administration Act 1993 (SA) s 12, s 14(4), s 14(6), s 14(7), s 14(9), s 25, s 29, s 32, s 67, s 81; District Court Act 1991 (SA) s 42E, s 42E(3), s 42F(B) and s 42F(c) ; Repatriation Commission v Nation (1995) 57 FCR 25; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, referred to.
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; Haoucher v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 648, applied.

Z, J
[2012] SADC 81
The issue

The within appeal from a decision of the Guardianship Board raises an important issue in relation to the scope of the powers of the Board hearing matters remitted by the District Court.
First proceedings before the Guardianship Board
The issue arises in this way. On 30 September 2011 an application was made in writing on a standard form provided by the Board, for a Level 2 Community Treatment Order in respect of the appellant, pursuant to s 16 of the Mental Health Act 2009 (SA). The proposed length of the order was for the maximum of 12 months. It was supported by a psychiatric report diagnosing a schizo-affective disorder and contained hospital records and a proposed health care plan.
The matter was heard by the Guardianship Board on 26 October 2011. On that day it made a Level 2 Community Treatment Order (CTO) to expire at 2.00 pm on 23 March 2012, that is one of just under five months duration. The reasons for making an order of that limited length seems to stem from the following exchanges as recorded in the proceedings before the Board:[1]
[1]    T41, 26 October 2011
Presiding Member:       Dr R what I’m going to do is I’m only going to give a three month CTO because I think that there are issues here that perhaps need further investigation, I’m going to give a three month CTO if you like to keep [protected person] safe and to give chance for community involvement to occur and for a psychologist and for a complete medical overhaul, etcetera, all those things that [protected person] wants to be able to take place, all right.
Dr R:I would say probably six months would be better.
Protected Person:         No three months please.
Presiding Member:       Hold on, hold on – it will take that long you think?
Protected Person:         (Inaudible)
Dr R:For her mood to stabilise, probably it would take another month or so to stabilise, to engage with the psychologist to explore these issues.
Presiding Member:       Yes psychologists do take a while, that’s true.
Protected Person:         (Inaudible)
Presiding Member:       Hold on, hold on, we’re trying to compromise here, [protected person] we are, we’re compromising okay, what we’ve done so far –
Protected Person:         I’m doing that surgery and then I’m doing that surgery, that’s in Melbourne because I’m a high risk –
Presiding Member:       What we’re doing is compromising to try and make sure that you understand –
Protected Person:         But three months – okay do it four months. Well you said bartering.
Protected Person’s brother: (Inaudible)
Presiding Member:       But don’t forget we started at 12 months –
Protected Person:         They said six and you said three, I said four.
Presiding Member:       No we’ll go for six months all right –
Protected Person:         No –
Presiding Member:       Look just because I want to make this a therapeutic result we’ll call it five months, okay, I feel like I’m in Bali shopping, but we’re going to call it five months –
Protected Person:         Five months is too long, I’m suffering anyway.
Presiding Member:       It will take that long in order –
…
Presiding Member:       Okay, I’m going to make it a five month CTO because I think it will be therapeutic for [protected person] –
This Decision was taken on appeal to this Court. On 12 December 2011, an order remitting the matter for re-hearing was made by consent, on the basis of procedural irregularities, namely the failure to advise of the right to representation and of the right to call and give evidence or to examine witnesses. The formal order read ‘remit to Guardianship Board for rehearing’. There was no order quashing the Board’s Decision. In the meantime the Community Treatment Order remained in place and was in fact implemented.
Second proceedings before the Guardianship Board
The matter again came before the Board on the order for remission on 16 February 2012. It is accepted on both sides that no further application of a formal kind was made for a Community Treatment Order in any form, written or oral, still less one for 12 months.
The appellant was represented by an Advocate from the Disability Advocacy Services (MALSSA Inc). The Board comprising a Deputy President and two members, then proceeded to hear the matter on the merits.
In the earlier stages of the hearing the Presiding Member indicated the Board was entitled to be apprised of “any significant changes” since the original order was made. He also said that upon remission we have to “deal with it in full”.[2] The psychiatrist concerned later suggested the medical state of the appellant was “markedly different” from what it was when the original application was made.[3] The proceedings were not assisted by constant interruptions from the appellant herself.
[2] T5.7, 16 February 2012
[3] T19.2, 16 February 2012
At one particular point however, approximately mid-point during the hearing, her Advocate made the following submission of significance in the context of the appropriate course to be adopted by the Board:[4]
I think my final submission to the Deputy Presidentship and the Board would be since [the protected person’s] been on this Treatment Order since 26 October I would ask that if the Board so orders that it obviously not be a 12 month order, that it be at least shortened by four months, that being the current period that [the protected person] has been on the Community Treatment Order, that it be no longer than eight months.
[4] T25.8, 16 February 2012
This issue was picked up again later towards the conclusion of the proceedings, by the Presiding Member. He asked Dr F to “comment and to indicate what your view is of the duration the order should be”. The Doctor requested 12 months. The appellant’s Advocate responded:[5]
… going back to my submission about the eight months, and in light of [the appellant] being on the Community Treatment Order for four months already, that would be the 12 months and I think in fairness that would only be fair if the Board so ordered the Community Treatment Order.
The appellant interjected:
I only have two months left. I’ve only got two months left.
The Presiding Member responded by indicating the Board would adjourn, which it did. Upon reconvening he made the orders mentioned without taking any further submissions or comments from anyone.
[5] T45.9-46.1, 16 February 2012
Without saying it in so many words, the submission by the Advocate was clearly to the effect that the Board’s powers were limited by the fact that the appellant had already been subject to the Community Treatment Order for over four months. Moreover the interjection by the appellant was a poignant one, because she was communicating her belief that the Tribunal was limited to the previous order of five months.
Both the submission and the comment direct attention to the requirements of s 16(5)(b) of the Mental Health Act 2009 (SA) which limits Level 2 Community Treatment Orders to 12 calendar months. It can be seen then that the Advocate raised the question whether the Board had the power to make an order that was in combination more than 12 months in duration. It can also be seen that the appellant herself considered the five month order remained intact, and was clearly anxious to ensure the time she had been subject to the previous Order was taken into account.
Jurisdiction of the Guardianship Board
Before dealing with the legal implications, it is first necessary to carefully delineate the jurisdiction and powers of the Guardianship Board. The Guardianship Board is established by the Guardianship and Administration Act 1993 (SA). It is constituted by a President or Deputy President and members appointed thereunder (s 12). It is invested with various powers and procedures by s 14. These include the obligation to provide reasonable notice of the time and place of hearings to interested parties (s 14(4)), and to afford opportunities to call evidence or cross-examine witnesses and to make submissions (s 14(6)). Statutory rights are furnished to the parties to appear ‘personally or by counsel’ or in some instances by a ‘recognised advocate’ (s 14(9)), a capacity defined in s 3 to mean ‘a person who … is recognised by the Board as a person qualified to act as an advocate in proceedings before the Board for the person to whom the proceedings relate’. It seems that the advocate in this case was so recognised. A power is conferred to take urgent action without complying with any parts of s 14, providing an order is made that does not exceed, in the run of cases, 21 days (s14(7)(b)).
We are told that there are no Regulations governing applications.[6] We are further told application forms are developed and used as a matter of practice by the Board in order to generate hearings.[7] The powers of the Board conferred under the Guardianship and Administration Act generally relate to the capacity to appoint an enduring guardian (s 25), to make guardianship orders with respect to persons having mental incapacity (s 29), to make orders authorising the detention of protected persons in a specified places or where such persons shall reside (s 32), and to make administration orders with respect to a person – or their estate - having mental incapacity. There are adjudicative powers as well as powers facilitating the making of orders and the fact finding process which precedes them (s 14).
[6] T21.27-.36, 14 May 2012
[7] T24.23-.29, 14 May 2012
The jurisdiction to make orders of a kind made here are however invested under Part 4 of the Mental Health Act. Jurisdiction to make Level 2 Community Treatment Orders is supplied by s 16. That jurisdiction is enlivened by an ‘application … to the Board for the Board’s decision as to whether it should make a Community Treatment Order …’ (ss 16(3)(a) & (4)). The class of persons who may apply for, or who may apply to vary or revoke such orders, are confined by ss 16(4) & (8). As noted earlier the power to make a Level 2 Community Treatment Order is confined to ‘12 calendar months after the day on which it is made’ (s 16(5)(a)).
The appeal to the District Court
At the hearing of the appeal we made orders quashing the Decision of the Board of 16 February 2012 and we declined to remit the matter for further consideration. The reasons for taking that course follow.
Section 85 of the Mental Health Act records that:
85 Appeals to District Court and Supreme Court
The Guardianship and Administration Act 1993 provides certain rights of appeal to the Administrative and Disciplinary Division of the District Court and from that court to the Supreme Court in relation to orders or decisions of the Board made under this Act.
Section 67 of the Guardianship and Administration Act vests a right of appeal in specified parties including ‘the person to whom those proceedings relate’ from decisions of the Guardianship Board or with the permission of the Administrative and Disciplinary Division of the District Court from any such decision of the Board. Such appeals must be instituted within 28 days of such decisions (s 67(3)). The within appeal was filed on 5 March 2012. The court ‘must hear and determine … [appeals] … as expeditiously as is reasonably practicable …’ (s 67(8)).
The powers of disposition however are those contained within Part 6 Division 2, the Administrative and Disciplinary Division of the District Court, conferred by the District Court Act 1991 (SA). The powers of intervention are contained in s 42E thereof:
42E—Conduct of appeal
(1)     The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)     The Court, on an appeal—
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)     The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
The order made in December of last year exercised the power of remission contained in s 42F(c) of the District Court Act. Section 42F reads:
42F—Decision on appeal
The Court may, on an appeal—
(a)     affirm the decision appealed against;
(b)     rescind the decision and substitute a decision that the Court considers appropriate;
(c)     remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
No order of rescission was made at that time under s 42F(c) and of course there were no directions or recommendations thereunder. It must follow that the ‘matter’ remitted to the Board was the original application of 30 September 2011. Accordingly it was not open to consider any other matters other than those encompassed by that application: Repatriation Commission v Nation.[8]
[8] (1995) 57 FCR 25 at 31E-32B
As of the date of the second appearance before the Board, the appellant had been subject to the Community Treatment Order for about 10 days short of four months and as of the date of this appeal she had been subject to the Order for about 12 days short of seven months.
Disposition of appeal
Since s 16(5)(b) of the Mental Health Act makes it clear that a Community Treatment Order can only remain in force for 12 months, and the first order of 26 October 2011 had run its course by the time of the second hearing of the Board, there was only the power to make an order based on the application of 30 September 2011 to the extent of the remaining period bringing it in total to no more than 12 months. That being so, the order for a further 12 months – effectively a Community Treatment Order of nearly 16 months, was beyond power. This amounts to jurisdictional error and hence ‘cogent reason’ to depart from the decision of the Board within the meaning of s 42E(3) of the District Court Act 1991 (SA). As the plurality judgment of the High Court expressed matters in Kirk v Industrial Court of New South Wales,[9] jurisdictional error occurs when a Tribunal misapprehends the limits of its functions and powers.
[9] (2010) 239 CLR 531 at [72]
In the first place the Board misapprehended the limits of its powers because it imposed a Community Treatment Order of greater than 12 months duration, in excess of jurisdiction. Hence the order quashing the decision of the Board. Furthermore the Board failed to give reasonable notice of its intention to consider a further order of 12 months duration as it was required to under s 14(4) of the Guardianship & Administration Act, or inform the appellant of the case against her, or to furnish the reasonable opportunity to answer it in that respect: Minister for Immigration and Multicultural Affairs v Bhardwaj.[10]
[10] (2002) 209 CLR 597 at 611
The final matter to explain is the refusal to make an order remitting the matter for a second time under s 42F(c) of the District Court Act. As noted earlier, the appellant as of the time of this appeal was subject to the original Community Treatment Order for longer than the original five months first set in October 2011. The appellant squarely raised the question whether in fairness the Board ought to have made an order of any longer duration than that. It failed to consider that question. All it did was to ask Dr F towards the very end of the proceedings what his preferred length should be. This was the only occasion that the prospect of such an order was raised. Once again the Board failed to give the appellant reasonable notice that it would consider an order of longer than five months, still less did it afford a reasonable opportunity to deal with that prospect. Indeed it adjourned only to return and pronounce orders without more. This resulted in manifest procedural unfairness.
There is another reason for expressing the same conclusion. The appellant plainly harboured the reasonable expectation that an order of no more than five months was appropriate, at least in the absence of a formal application seeking a longer period. Although not of itself amounting to an enforceable legal right, it is one capable of protection under public law, thus independently giving rise to ‘a prima facie obligation to accord procedural fairness’: Haoucher v Minister for Immigration & Ethnic Affairs.[11]
[11] (1990) 169 CLR 648 at 652
Conclusion
It was for the above reasons that the order of the Guardianship Board of 16 February 2012 was rescinded. The court declined to make an order for remission because the appellant had already been subject to a Community Treatment Order for longer than the original five months, because the case for a longer period had not been duly notified and because she was denied the effective opportunity to meet it.
No impracticality of the potential kind identified by Ms Lieschke in the course of her submissions arises,[12] simply because it is open at any time to file a fresh application as contemplated by ss 16(3)(a) & (4) of the Mental Health Act clearly spelling out the length of time for which a CTO is sought, and if it proves absolutely necessary, to bring an urgent application under s 14(7) of the Guardianship and Administration Act.
[12] T14.13-15.21, 14 May 2012
NOTE: This judgment is published with the express authorisation of the appellant given under s 81(2) of the Guardianship and Administration Act. Certain portions have been redacted to ensure no information is disclosed ‘that identifies, or could tend to identify, the person to whom the proceedings relate’: s 81(3).