LEON ZAHARUIKO In Person v PUBLIC TRUSTEE [2025] SASCA 106

On Appeal from SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (THE HONOURABLE PRESIDENT HUGHES) 2025/SIR000088 Applicant: LEON ZAHARUIKO In Person Respondent: PUBLIC TRUSTEE Counsel: MR R LAWTON - Solicitor: CROWN SOLICITOR (SA) Interested Party: WILLIAM DUNCAN MACKENZIE In Person via Telephone Hearing Date/s: 19/09/2025 File No/s: CIV-25-006792 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. ZAHARUIKO v PUBLIC TRUSTEE [2025] SASCA 106 Judgment of the Honourable Acting Chief Justice Livesey (ex tempore) 19 September 2025 HEALTH LAW - GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY - ADMINISTRATION AND FINANCIAL MANAGEMENT ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL By a Notice of Appeal dated 16 June 2025, the applicant sought to challenge orders made by the President of the South Australian Civil and Administrative Tribunal (the Tribunal), which included refusing leave to proceed with an internal review and dismissing an application for review. That decision was concerned with the review of an order made by the Tribunal approving the Public Trustee, as administrator for Mr Edwardes (the protected person), to sell the protected person’s house at Waterfall Gully in order to meet various debts, including debts owed to the care facility in which the protected person had lived for the last few years. The protected person later died on 11 or 12 July 2025. A single judge of the Supreme Court of South Australia remitted the appeal and a part-heard interlocutory application back to the Court of Appeal. The issue before this Court was whether there remains any utility in the proposed appeal, or the part-heard interlocutory application, seeking a raft of orders concerning the care and welfare of the protected person, and concerning his Waterfall Gully property. Held, summarily dismissing the appeal and the interlocutory application: 1. There is no utility in the appeal or the interlocutory application. The property the subject of the proceeding has been sold and, subject to meeting any obligations which may have accrued -- 1 of 5 -- before the death of the protected person, it will be necessary for the Public Trustee to account for the sale proceeds to those administering his deceased estate. 2. None of the matters raised in the notice of appeal or the interlocutory appeal have any reasonable prospect of succeeding. There is no prospect that permission to appeal will be given, or that interlocutory relief will be granted. 3. This is a proper case in which to summarily dismiss the appeal and the interlocutory application. 4. The applicant must pay the costs of the respondent, which are agreed in the amount of $500. South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71; Uniform Civil Rules 2020 (SA) r 212.5, referred to. Luca v Eckert (No 2) [2024] SASCA 136; Miojlic v City of Onkaparinga Council [2025] SASCA 2, considered. -- 2 of 5 -- ZAHARUIKO v PUBLIC TRUSTEE [2025] SASCA 106 Court of Appeal: Civil – Livesey ACJ Introduction 1 I have called this matter over today because it has been referred back to the Court of Appeal by a judge of the General Division. The protected person, Mr Edwardes, died on 11 or 12 July 2025. The issue is whether there remains any utility in the proposed appeal, or the part-heard interlocutory application, seeking a raft of orders concerning the care and welfare of Mr Edwardes and concerning his Waterfall Gully home. 2 For the purposes of this ruling, it is not necessary to address the various contentions which have been made about who are the proper parties to this litigation. The appeal proceedings and the interlocutory applications 3 On 16 June 2025, the appellant filed a notice of appeal challenging orders made by Hughes P on 9 May 2025, which included refusing leave to proceed with an internal review and dismissing an application for review. The decision was concerned with the review of an order made by the South Australian Civil and Administrative Tribunal (The Tribunal) on 4 March 2025 approving the Public Trustee, as administrator for Mr Edwardes, to sell Mr Edwardes’ house at Waterfall Gully in order to meet various debts, including debts owed to the care facility in which Mr Edwardes had lived for the last few years. 4 Separately, an urgent application was made to the Supreme Court seeking a stay or an order restraining the Public Trustee from proceeding with entry into a contract, or from settling on any contract, for the sale and purchase of the Waterfall Gully property. Justice Gray heard and refused that application.1 5 It is apparent from the materials that the sale has now completed.2 6 The appeal to this Court requires permission to appeal because it concerns a decision of the President of the Tribunal, Justice Hughes.3 7 After the appeal was filed, the applicant made an application seeking urgent relief on a broad range of matters. These included that the administration and any orders made by the Tribunal be stayed until further order, and that the affairs of the protected person, Mr Edwardes, be vested in the Supreme Court pursuant to the common law principles concerning parens patriae, and that the protected 1 Reasons of Gray J dated 23 April 2025. 2 Reasons of B Doyle J dated 9 July 2025, [41]. 3 See the South Australia Civil and Administrative Tribunal Act 2013 (SA), ss 71(1)(a)(i) and 71(2). -- 3 of 5 -- [2025] SASCA 106 Livesey ACJ 2 person be brought before the Court pursuant to the common law principles concerning habeas corpus. 8 Justice B Doyle heard the application. The judge gave careful consideration to the issues arising on it. He regarded the application as falling into two categories. The first concerned the Waterfall Gully property, and the second raised broader issues about the care of Mr Edwards and a number of difficult legal questions concerning the extent of the jurisdiction of the Supreme Court in the context of an appeal seeking relief and exercise of the inherent jurisdiction of the Supreme Court. 9 Because the sale had completed, the judge refused to grant leave for what would effectively amount to an interlocutory reversal of the registration of the indefeasible title obtained by the purchaser of the Waterfall Gully property under the Real Property Act 1886 (SA). He recognised that it may follow from his refusal to grant relief that the appeal proceeding was therefore “moot or of limited practical utility … and accordingly that leave to appeal should not be granted … but that is not a question before me”.4 10 The judge left for further consideration a number of “substantial questions”, as follows:5 (1) Is the relief sought relief of a kind that can be pursued on an interlocutory application in an appellate proceeding; (2) To the extent that the relief sought appeals to the Court’s inherent jurisdiction by way of parens patriae or habeas corpus – (a) does Mr Zaharuiko have standing to pursue the relief? (b) what precisely are the grounds for the relief sought? (c) should subpoenas be issued in aid of such a hearing as Mr Zaharuiko contends? (d) are there discretionary issues why the Court would refrain from embarking on an inquiry into these matters given the existence of, or availability of, other proceedings in the Tribunal or under specific legislation? 11 At that stage, the matter was adjourned to a hearing in mid-July. That hearing did not proceed in any substantive way because the protected person, Mr Edwardes, died. 12 The judge later made an order remitting the appeal and the interlocutory application back to the Court of Appeal. 4 Reasons of Justice B Doyle dated 9 July 2025, [44]. 5 Reasons of Justice B Doyle dated 9 July 2025, [45]. -- 4 of 5 -- [2025] SASCA 106 Livesey ACJ 3 The utility of the appeal and the interlocutory application 13 Ordinarily, the jurisdiction of the Tribunal under legislation such as the Guardianship and Administration Act 1993 (SA) is concerned with the care and welfare of the protected person. On the death of the protected person, there is very little left for a guardian or administrator to do.6 14 Mr Zaharuiko accepted that, following the death of Mr Edwardes, it was obvious that the matter could not continue and would need to be discontinued. He says that his offers to Public Trustee, which tied discontinuance to costs and various conditions, were rejected. He says that the Public Trustee unreasonably rejected his proposals. Nonetheless, the parties agreed the quantum of costs at $500. 15 In the circumstances, it seems to me that there is now no utility in the appeal or the interlocutory application. The Waterfall Gully property has been sold and, subject to meeting any obligations which may have accrued before the death of Mr Edwardes, it will be necessary for the Public Trustee to account for the sale proceeds to those administering the deceased estate of Mr Edwardes. 16 As for the broader issues raised by the interlocutory application dated 3 July 2025, there can be no utility in any of the matters sought to be raised following the death of the protected person. For example, there is now no point in invoking parens patriae or habeas corpus principles. The determination of the appeal and the interlocutory application 17 Having called the matter on and given the applicant an opportunity to address the Court, I am satisfied that this is a proper case in which to summarily dismiss the appeal and the interlocutory application.7 18 None of the matters raised in the notice of appeal or the interlocutory appeal have any reasonable prospect of succeeding. There is no prospect that permission to appeal will be given, or that interlocutory relief will be granted. Conclusion 19 The appeal commenced on 16 June 2025, and the interlocutory application commenced on 3 July 2025, should both be summarily dismissed. The applicant must pay the respondent’s costs within 14 days fixed in the amount of $500. 6 Luca v Eckert (No 2) [2024] SASCA 136, [27]-[28] (Livesey P, S Doyle and David JJA). 7 Uniform Civil Rules 2020 (SA), r 212.5(2)(c)(ii); Miojlic v City of Onkaparinga Council [2025] SASCA 2, [8]-[12] (Livesey P). -- 5 of 5 --