[2026] SASCA 40

Applicant: NATALIE ANNE MCVICARS BY HER LITIGATION GUARDIAN LOKI MAELORIN In Person Respondent: SOUTH AUSTRALIAN HOUSING TRUST Counsel: MR B GARNAUT - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 17/04/2026 File No/s: CIV-25-003509 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. MCVICARS v SOUTH AUSTRALIAN HOUSING TRUST (No 5) [2026] SASCA 40 Judgment of the Honourable President Livesey (ex tempore) 17 April 2026 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS HEALTH LAW - MENTAL HEALTH GENERALLY - GENERAL LAW AFFECTING PERSONS WITH MENTAL ILLNESS OR IMPAIRED CAPACITY This is the second urgent application made in this matter after the appeal was dismissed in September 2025. This time the applicant is attempting to invoke the parens patriae jurisdiction of this Court, seeking what are described as “protective orders”. In October 2025, the applicant filed an urgent application seeking an immediate injunction to prevent the Public Advocate from moving the applicant from her temporary accommodation to a supported residential care facility. The allegations included procedural irregularities, ultra vires conduct, misrepresentation, collusion, fraud, breach of duty and statutory breaches directed against the Public Advocate, the Public Trustee, the Crown Solicitor’s Office (SA) and Plan Pilot, the applicant’s NDIS provider. The matter was heard by the former Chief Justice and was dismissed because there was no relevant connection with the appeal proceedings. In this application, no relief has been sought against the respondent. Apart from trying to invoke the parens patriae jurisdiction in a broad, unspecified way, the suggestions made by the former Chief Justice have not been followed. Held, dismissing the application, with no order as to costs: 1. The present application does not properly involve the respondent or the appeal proceedings which have been dismissed. -- 1 of 6 -- 2. The parens patriae jurisdiction is not a substitute for the applicable statutory and regulatory regimes, which cannot be ignored or supplanted by invoking the inherent jurisdiction of this Court. 3. Until the relevant statutory and regulatory regimes have been identified, and the proper parties identified, whether there is scope for invoking the inherent jurisdiction of this Court remains unclear. Supreme Court Act 1935 (SA) s 17(2), referred to. Chignola v Chignola (1974) 9 SASR 479; Children, Youth & Women’s Health Services Inc v YJL (by his next friend) (2010) 107 SASR 343; DT v Chief Executive of the Department for Child Protection [2022] SASC 24; McVicars v South Australian Housing Trust (No 4) [2025] SASCA 109; Re Frances and Benny [2005] NSWSC 1207; Washington v Washington [2018] SASC 102, considered. -- 2 of 6 -- MCVICARS v SOUTH AUSTRALIAN HOUSING TRUST (No 5) [2026] SASCA 40 Court of Appeal – Civil – Application LIVESEY P (ex tempore): Introduction 1 This is the second urgent application made in this matter after I summarily dismissed an appeal in September 2025.1 This time the applicant is attempting to invoke the parens patriae jurisdiction of this Court, seeking what are described as “protective orders”. 2 The applicant is not legally represented, and she made submissions before me today. She is assisted by Ms Louise O’Brien, her former support coordinator, Mx Maelorin, her litigation guardian appointed in the appeal proceedings, and Ms Michelle Taylor, a “support person”. Mr Garnaut appeared for the respondent and, to the extent necessary, for the Public Advocate. 3 Another urgent application was heard and dismissed by the former Chief Justice in October last year. For the following reasons, this application must also be dismissed. Brief background 4 The applicant is 32 years old, with a complex mix of diagnoses and urgently in need of accommodation, assistance and support. 5 On 30 July 2025, the South Australian Civil and Administrative Tribunal (the Tribunal) made orders appointing the Public Advocate as the applicant’s full guardian and the Public Trustee as full administrator of her estate.2 The appeal proceedings 6 The appeal proceedings concerned an application to appeal a decision of the Deputy President of the Tribunal, which upheld the Tribunal’s decision to terminate the applicant’s tenancy with the respondent. 7 After a number of hearings, including concerning the appointment of a litigation guardian, on 26 September 2025 I summarily dismissed the appeal.3 The first application 8 On 8 October 2025, Ms O’Brien filed an urgent application seeking an immediate injunction to prevent the Public Advocate from moving the applicant 1 McVicars v South Australian Housing Trust (No 4) [2025] SASCA 109. 2 Pursuant to orders made by the Tribunal on 30 July 2025 (2014/SC9129127). 3 McVicars v South Australian Housing Trust (No 4) [2025] SASCA 109, [26]-[31] (Livesey P). -- 3 of 6 -- [2026] SASCA 40 Livesey P 2 from her temporary accommodation in Elizabeth Downs, owned by Greenleaf Support Services (Greenleaf), to the Eureka Care Communities village in Salisbury East.4 An injunction was also sought to prevent the Public Advocate from making any other changes to the applicant’s living arrangements. 9 The allegations included procedural irregularities, ultra vires conduct, misrepresentation, collusion, fraud, breach of duty and statutory breaches directed against the Public Advocate, the Public Trustee, the Crown Solicitor’s Office (SA) and Plan Pilot, the applicant’s NDIS provider.5 10 The matter was heard by the former Chief Justice on 21 October 2025. His Honour dismissed the application because there was no relevant connection with the appeal proceedings which had been dismissed.6 As his Honour explained to the applicant:7 Because the proceedings have been dismissed the interlocutory application is what we lawyers and judges called irregular, it simply cannot be brought in dismissed proceedings. Once a proceeding has been dismissed the only application that might be entertained is an application to set aside the order of dismissal, but in this context that would involve alleging some sort of complete lack of power or fraud or something quite extraordinary, which hasn’t been alleged in this interlocutory application. … … the appeal to this court was from an order of the SACAT, and the only question on appeal to this court was the correctness or otherwise of the SACAT order confirming the eviction. I saw that there were allegations of negligence and claims made about the lack of the Public Trustee support in paying rent and the like, but those matters aren’t actually part of what lawyers call the legal controversy or legal dispute, which was only and limited only in this court, and the appeal to this court, to the correctness of the SACAT order. That’s now gone and that was dealt with and dismissed and there is no more, no further tenancy. 11 Though the former Chief Justice said that he was bound to dismiss the application, he explained that legal advice should be sought and new proceedings commenced, perhaps in the parens patriae jurisdiction of the Court, depending on the fate of various applications then pending in the Tribunal.8 The current application 12 The applicant did not commence new proceedings. By her application dated 2 April 2026, made in the old appeal proceedings, the applicant seeks to invoke the parens patriae jurisdiction of the Court “in the interests of justice”.9 The grounds for the application are set out in a supporting affidavit of Ms O’Brien, which asserts:10 4 Interlocutory application dated 8 October 2025 (FDN 47). 5 Affidavit of Louise O’Brien dated 8 October 2025 (FDN 48). 6 Transcript, Natalie Anne McVicars v South Australian Housing Trust (Court of Appeal, CIV-003509, Kourakis CJ, 21 October 2025) (Transcript) 4.27-4.30. 7 Transcript, 6.12-6.22, 8.36-9.10. 8 Transcript, 9.12-9.17. The former Chief Justice explained that a waiver of filing fees might be sought. 9 Interlocutory application dated 2 April 2026 (FDN 50). 10 Affidavit of Louise O’Brien dated 2 April 2026 (FDN 51). -- 4 of 6 -- [2026] SASCA 40 Livesey P 3 • The applicant was evicted from a Greenleaf property, a community housing provider, on or about 28 January 2026, at which time the Public Trustee had control of her financial affairs and failed to meet the applicant’s rental obligations. • Since the applicant was evicted, the Public Advocate has not secured any stable accommodation or housing solution for her. The accommodation it did, at one point, source was assessed and deemed to be uninhabitable by the Housing Safety Authority. The Public Advocate has also ignored multiple affordable properties for the applicant to live in brought to its attention by Ms O’Brien. • Plan Pilot has neither met the applicant nor provided her with any support coordination for around 10 weeks. • Around $7,000 was paid for accommodation which the applicant was not living in, which should have been paid for the accommodation she was living in and led to her eventual eviction. • All non-judicial remedies to otherwise assist the applicant have been exhausted, including a request for intervention made to the Attorney-General (SA), which was refused. 13 The administrative and other hurdles apparently confronting the applicant must seem bewildering to her and those assisting her. However, no relief is sought against the respondent, which is perhaps not surprising because the applicant no longer resides in a South Australian Housing Trust property. Apart from trying to invoke the parens patriae jurisdiction in a broad, unspecified way, the suggestions made by the former Chief Justice have not been taken up. The parens patriae jurisdiction 14 Through s 17(2) of the Supreme Court Act 1935 (SA), this Court has broad powers that may be exercised in its parens patriae jurisdiction in favour of children and other vulnerable people who might otherwise be unable to make arrangements for their own safety, care and protection or basic needs.11 As Bray CJ explained in Chignola v Chignola:12 I agree that it is the equitable jurisdiction formerly vested in the Lord Chancellor, and subsequently the Court of Chancery, exercising the prerogative of the Crown as parens patriae, that primarily concerns us. That jurisdiction was an inherent jurisdiction of the Court of Chancery and this Court now possesses it. To be more precise the jurisdiction is that formerly vested in the High Court of Chancery (Supreme Court Act s. 17(2)(a)(i) and 11 Children, Youth & Women’s Health Services Inc v YJL (by his next friend) (2010) 107 SASR 343, [30]-[31] (White J); Washington v Washington [2018] SASC 102, [182] (Parker J); DT v Chief Executive of the Department for Child Protection [2022] SASC 24, [14]-[21] (Livesey P). 12 Chignola v Chignola (1974) 9 SASR 479, 480 (Bray CJ). -- 5 of 6 -- [2026] SASCA 40 Livesey P 4 by “formerly” is meant prior to the English Supreme Court of Judicature Act 1873 (Supreme Court Act, s. 5). 15 In Re Frances and Benny, Young CJ in Eq gave an example of an exceptional case in which the Court’s parens patriae jurisdiction may be exercised, being where:13 … it is urgently required that some protective order be made and the court can see that other curial processes may not be able to provide instant relief. 16 There are often questions about whether specific statutory regimes have displaced or curtailed the exercise of the Court’s inherent powers. At the least, the existence and potential exercise of powers and discretions under those statutory regimes are relevant when considering whether the Court’s inherent powers should be exercised at the time the Court is asked to intervene. 17 Whilst the array of difficulties confronting the applicant in her desire to secure appropriate accommodation, services and support should not be underestimated, no attempt has been made to identify the applicable statutory regimes, whether they might be thought deficient, or why. Unless these are identified with precision, it remains unclear whether there is scope for the exercise of the Court’s parens patriae jurisdiction in this case. 18 Affidavits filed by a representative of the Public Advocate attest to extant Tribunal proceedings, where the applicant remains in breach of directions to file material. Whilst the Court is also aware of an NDIS plan and evident difficulties with accommodation, services and support, it remains unclear what statutory regimes are in operation and why they may be thought deficient. To be clear, the parens patriae jurisdiction is not a substitute for the applicable statutory and regulatory regimes, and these cannot be ignored in an attempt to simply supplant them by invoking the inherent jurisdiction of this Court. Conclusion 19 As it is, the present application does not properly involve the respondent or the appeal proceedings which have been dismissed. 20 Until the relevant statutory and regulatory regimes have been identified, and the proper parties identified, whether there is scope for invoking the inherent jurisdiction of this Court remains unclear. Considered legal advice and assistance is urgently required.14 21 The application must be dismissed. I will make no order as to costs. 13 Re Frances and Benny [2005] NSWSC 1207, [18] (Young CJ in Eq), cited in DT v Chief Executive of the Department for Child Protection [2022] SASC 24, [20] (Livesey P). 14 My Chambers staff have provided contact details for possible community legal service providers to the applicant and those supporting her. -- 6 of 6 --