[2025] SASCA 109

On Appeal from SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (DEPUTY PRESIDENT JOHNS) 2025/SIR000032 Applicant: NATALIE ANNE MCVICARS BY HER LITIGATION GUARDIAN LOKI MAELORIN In Person Respondent: SOUTH AUSTRALIAN HOUSING TRUST Counsel: MR W AMBROSE - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 26/09/2025 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 4) [2025] SASCA 109 Judgment of the Honourable Acting Chief Justice Livesey (ex tempore) 26 September 2025 ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL HEALTH LAW - MENTAL HEALTH GENERALLY - GENERAL LAW AFFECTING PERSONS WITH MENTAL ILLNESS OR IMPAIRED CAPACITY - CONDUCTING LEGAL PROCEEDINGS - LITIGATION GUARDIANS AND NEXT FRIENDS By a Notice of Appeal dated 27 March 2025, the applicant sought to overturn a decision of the Deputy President of the South Australian Civil and Administrative Tribunal (the Tribunal) on an internal review. The appeal concerned a decision of the Deputy President to uphold the decision of the Tribunal to terminate the applicant’s tenancy with the South Australian Housing Trust. The applicant vacated the property earlier this year following the dismissal of an urgent application for a stay pending an appeal by a judge of this Court. applicant’s tenancy has since been terminated and the property in which she lived re-tenanted. A stay of the appeal proceedings was granted on 2 July 2025 pending the appointment of a litigation guardian. A litigation guardian was appointed for the purposes of the appeal proceedings on 21 August 2025. The matter was listed for hearing following an application by the applicant, by her litigation guardian, for the stay of the appeal proceedings to be lifted. The question for this Court was whether these proceedings should continue. Held, summarily dismissing the appeal: -- 1 of 8 -- 1. There is no utility in the appeal. 2. Even if the applicant were to amend and succeed with new grounds of appeal, that could not result in orders that the tenancy be restored, nor would it require the respondent to favourably exercise its discretion to grant the applicant a new tenancy. An order for a new tenancy in a different property is well beyond the scope of the powers conferred on the Court by s 71(4) of the South Australian Civil and Administrative Tribunal Act 2013 (SA). 3. There is no point granting the applicant an opportunity to amend the notice or grounds or indeed in allowing the matter to go to a hearing. To do so would, in the circumstances, unnecessarily put these parties to further time, trouble and cost. 4. Reflecting on the history of this matter, the assistance given by this Court, the issues apparently in dispute, and the absence of any evident utility in these appeal proceedings, this is a proper case for summary dismissal. Residential Tenancies Act 1995 (SA) ss 87, 90; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 70, 71; Uniform Civil Rules 2020 (SA) rr 1.5, 212.5, 213.1, referred to. Flowers v Hicks [2024] SASCA 126; Franklin v South Australian Housing Authority [2024] SASCA 3; McDonald v State of South Australia [2022] SASCA 43; McVicars v South Australian Housing Trust [2025] SASCA 52; McVicars v South Australian Housing Trust (No 2) [2025] SASCA 56; McVicars v South Australian Housing Trust (No 3) [2025] SASCA 75; Miojlic v City of Onkaparinga Council [2025] SASCA 2; Peters v Commissioner of Police [2025] SASCA 95; Rowe & Anor v National Australia Bank [2025] SASCA 86; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, considered. -- 2 of 8 -- MCVICARS v SOUTH AUSTRALIAN HOUSING TRUST (No 4) [2025] SASCA 109 Court of Appeal – Civil: Livesey ACJ Introduction 1 This matter has been listed today following an application by the applicant, Ms McVicars, by her litigation guardian, Mx Maelorin, for the stay of the appeal proceedings to be lifted. 2 A stay was granted on 2 July 2025 pending the appointment of a litigation guardian.1 On 21 August 2025, Mx Maelorin was appointed as litigation guardian for the purposes of these appeal proceedings. It follows that the reason for the stay of these proceedings has now gone. 3 The question for the Court is whether these proceedings should continue. The disposition of these proceedings 4 This appeal concerns a decision of the Deputy President of the South Australian Civil and Administrative Tribunal (the Tribunal) who, on internal review, upheld the decision of the Tribunal to terminate Ms McVicars’ tenancy with the South Australian Housing Trust (the respondent). 5 Ms McVicars vacated the property earlier this year following the dismissal of an urgent application for a stay pending an appeal by a judge of this Court.2 After that decision, it was necessary to address the respondent’s application for a stay,3 and that required taking evidence from the applicant’s psychiatrist.4 In the course of those hearings, the applicant’s tenancy was terminated and the property in which she lived was re-tenanted.5 6 The respondent contends that the matter should be summarily dismissed pursuant to r 212.5(2)(c)(ii) of the Uniform Civil Rules 2020 (SA) (the UCR) because the applicant has no reasonable prospect of obtaining leave to appeal or of otherwise succeeding on appeal. 7 For the following reasons, the applicant’s appeal should be dismissed. Relevant background 8 It necessary only to briefly describe the history of these proceedings. 9 On 22 August 2020, the applicant commenced a tenancy with the respondent for a period of five years ending on 22 August 2025. Following a series of 1 See McVicars v South Australian Housing Trust (No 3) [2025] SASCA 75. 2 See the ex tempore reasons of Bleby JA, delivered 31 March 2025. 3 McVicars v South Australian Housing Trust [2025] SASCA 52 (Livesey P). 4 McVicars v South Australian Housing Trust (No 3) [2025] SASCA 75 (Livesey ACJ). 5 McVicars v South Australian Housing Trust (No 2) [2025] SASCA 56 (Livesey P). -- 3 of 8 -- [2025] SASCA 109 Livesey ACJ 2 incidents between the applicant and a neighbouring tenant, Witness A, the respondent gave the applicant a verbal warning, which was later followed by a written warning. 10 On 1 November 2024, the respondent applied to the Tribunal seeking to terminate the applicant’s tenancy under either ss 87(1), 87(2) or 90(1)(c) of the Residential Tenancies Act 1995 (SA) (the RTA). The respondent relied on the evidence of several witnesses before the Tribunal, although primarily Witness A, regarding the various incidents. The evidence included the applicant verbally abusing and swearing at Witness A, spraying him with a hose, hitting him on the head with a cane, spitting on him, damaging his property and throwing things at him and his dogs. 11 On 24 January 2024, the Tribunal terminated the applicant’s tenancy and ordered that the applicant vacate the property. The Tribunal found, amongst other things, that although the applicant had been provoked, she caused or permitted interference with the reasonable peace, comfort or privacy of another residing in the immediate vicinity of her home,6 the applicant had a long history of being unable to manage her behaviour and had responded with violence to Witness A. 12 The applicant sought an internal review of the Tribunal’s decision under s 70 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (the SACAT Act). The internal review was heard by the Deputy President on 3 March 2025. 13 On 5 March 2025, the Deputy President granted the applicant leave to apply for internal review but affirmed the decision of the Tribunal. 14 By a notice of appeal dated 27 March 2025, the applicant sought to overturn the Deputy President’s decision. A single judge of this Court dismissed the applicant’s application for a stay pending the appeal on 31 March 2025, observing that the applicant had failed to identify any arguable error in the Deputy President’s decision and that he was not persuaded that the appeal had any reasonable prospect of success.7 The applicant vacated the property and it has been re-tenanted. The grounds of appeal 15 The applicant requires leave to appeal pursuant to s 71(2) of the SACAT Act and r 213.1(1) of the UCR. It is well established that the question of leave to appeal is determined by reference to the interests of justice having regard to three inter-related questions:8 6 Residential Tenancies Act 1995 (SA), ss 87 and 90. 7 Ex tempore reasons of Bleby JA, delivered 31 March 2025. 8 Rowe & Anor v National Australia Bank [2025] SASCA 86, [31] (Livesey P and Stanley JA), referring to McDonald v State of South Australia [2022] SASCA 43, [21] (Livesey P and Bleby JA); Peters v Commissioner of Police [2025] SASCA 95, [20] (Livesey P and Stanley JA). -- 4 of 8 -- [2025] SASCA 109 Livesey ACJ 3 (1) whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal; (2) whether the decision raises an issue of principle or general importance; and (3) whether allowing the decision to stand would work a substantial injustice to the applicant. 16 The applicant’s grounds of appeal do not have any reasonable prospect of success and raise no issue of principle or general importance. The applicant’s grounds of appeal are as follows: 1. We believe this application for eviction should never have been brought forward by the SAHT as the evidence they used for the application was based on one Neighbour and their witnesses, that the neighbour had a special interest in the outcome and that the SAHT has not acted as a model litigant by relying on general fraud to gain an advantage by deception. 2. The Tribunal did not establish that Natalie is an ongoing risk to her neighbours 3. This gives rise to the matter of Negligence. We believe the SAHT as landlord owes a vulnerable tenant a Duty of Care under the Residential Tenancies Act (SA) 2013 and this was central to our response. The Deputy President would not address the matter of Negligence and as such we raise the matter of Jurisdiction. We state that the Deputy President as Auxilary Magistrate does not have the necessary Jurisdiction to preside over such a case given the limited powers her appointment provides. 4. We would argue that under contract law, a lease agreement signed by both parties being a contract, the SAHT has been not only negligent but engaged in unconscionable conduct by leveraging a position of power over a vulnerable tenant and given preferential treatment to the other tenant (admittedly also vulnerable). 5. This level of favouritism existed all along through the appellants tenancy of over 4 years and past the time that the appellants Intervention Order against Witness A to the proceedings was put in place. 6. These issues of inequity carried into the SAHT case and led to the matter being procedurally unfair as it was based on deception. This gave rise to significant Errors of Fact and led the Tribunal to make a decision that was punitive and harsh for the appellant. 7. The Tribunal placed too much weight on the evidence of witness A and the witnesses in support of witness A. In determining the internal review decision, the Tribunal failed to consider, or alternatively give adequate weight to: a) The steps Natalie has taken to manage her medical conditions and minimise the likelihood of her disruptive behaviour occurring in the future, including: (i) since SACAT's original decision made on 24 January 2025, Natalie has been working with an occupational therapist, a positive behaviour support practitioner and regularly checks in with her general practitioner, psychologist and psychiatrist; b) the evidence of the witnesses in support of Natalie; -- 5 of 8 -- [2025] SASCA 109 Livesey ACJ 4 c) the extent to which witness A applied the DAVRO technique in an attempt to have Natalie's tenancy terminated; d) the extent to which witness A's conduct contributed to Natalie's disruptive behaviour; e) the extent to which Natalie's medical conditions were the cause of, or contributed to, her disruptive behaviour; f) the risk of homelessness by making the order for termination of Natalie's tenancy; g) the difficulties Natalie will face in accessing her health services upon termination of her tenancy; and h) SAHT's negligence / breach of duty of care owed to Natalie in the way they managed Natalie's complaints and issues with Witness A at the property. 17 The grounds of appeal contain broad allegations concerning the manner in which the respondent brought the application, errors of fact, the Tribunal’s jurisdiction and complaints about procedural fairness. The applicant’s complaints are largely a re-agitation of matters already raised before the Tribunal. 18 Proposed appeal ground 1 is to the effect that the respondent’s application for eviction was based on fraud and deception. The allegations of fraud are broad and not fairly particularised.9 The applicant has not identified any evidence to support the serious allegation that the respondent “has not acted as a model litigant by relying on general fraud to gain an advantage by deception”. There is therefore no sound evidential basis provided for these allegations. This ground is not reasonably arguable. 19 Proposed appeal ground 2 does not demonstrate any arguable error. The reasons of the Deputy President clearly explain the finding to the contrary. 20 Proposed appeal ground 3 likewise does not demonstrate any arguable error. It misconstrues the nature of the Tribunal’s jurisdiction under the SACAT Act and the RTA. 21 Proposed appeal grounds 4 and 5 do not engage with the reasons of the Deputy President. 22 Proposed appeal ground 6 complains that there was procedural unfairness based on assertions made under appeal grounds 4 and 5. As the Deputy President’s reasons demonstrate, the applicant had the opportunity to participate in the review process,10 and the Deputy President accepted additional evidence presented by the 9 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 538 (Kirby P); Flowers v Hicks [2024] SASCA 126, [30] (Livesey P and Bleby JA). 10 Deputy President, [9]-[11], [25]. -- 6 of 8 -- [2025] SASCA 109 Livesey ACJ 5 applicant.11 There is no basis for the complaint that the applicant was denied procedural fairness. 23 Proposed appeal ground 7 is a re-agitation of matters raised by the applicant before the Tribunal. The Deputy President clearly took these matters into account. The weight to be accorded them was a matter for the Deputy President as part of the exercise of her discretion. Further, the matters identified largely do not undermine the factual findings made under s 90(1)(c) of the RTA. 24 The applicant has not identified any arguable error in the Deputy President’s reasons. The applicant’s grounds of appeal do not have any reasonable prospect of succeeding. Determination of the application for summary dismissal 25 Pursuant to r 212.5(2) of the Uniform Civil Rules 2020 (SA), a single judge of this Court may order summary dismissal, including where none of the grounds of appeal have “a reasonable prospect of succeeding”: 212.5—Interlocutory and ancillary orders in Court of Appeal matter (1) Subject to any statute to the contrary and subrule (3), when the jurisdiction to hear and determine an appellate proceeding is vested in, or to be exercised by, the Court of Appeal, a single Judge may make interlocutory orders and other orders ancillary to the hearing and determination of the appellate proceeding. (2) For example, a Judge may make orders relating to— (a) the constitution of an appellate proceeding; (b) the filing, service or amendment of an appellate document; (c) striking out an appellate document or summarily dismissing an appellate proceeding if— (i) the appellate proceeding is incompetent or has not been validly commenced; (ii) none of the grounds has a reasonable prospect of succeeding; or (iii) the appellant has not obeyed these Rules or any order made under them; 26 While the finding that none of the applicant’s grounds of appeal has any reasonable prospect of succeeding demonstrates that an order for summary dismissal could be made, that does not mean that the order should necessarily be made.12 An appeal should only be summarily dismissed where it is clearly in the interest of justice for that order to be made.13 In most cases, some opportunity to 11 Deputy President, [6]-[8]. 12 Miojlic v City of Onkaparinga Council [2025] SASCA 2, [17] (Livesey P). 13 Miojlic v City of Onkaparinga Council [2025] SASCA 2, [17] (Livesey P). -- 7 of 8 -- [2025] SASCA 109 Livesey ACJ 6 amend the notice or grounds should be given.14 In Miojlic v City of Onkaparinga Council, it was explained:15 … Summary dismissal may represent an appropriate recognition of the clear lack of merit in the appeal, together with an appropriate balancing of the interests of all parties to the appellate proceeding. Indeed, it may be unjust to allow a matter to go to a hearing, even if it is only a hearing of the leave application, where it appears likely that no reasonably arguable grounds will emerge and the parties will unnecessarily be put to further time, trouble and cost. 27 The fundamental difficulty confronting the applicant is that there is no utility in pursuing the appeal. There is no prospect that leave to appeal will be granted. Even if the applicant were to amend and succeed with new grounds of appeal, that could not result in orders that the tenancy be restored, nor would it require the respondent to favourably exercise its discretion to grant the applicant a new tenancy. The applicant’s property has been re-tenanted. An order for a new tenancy in a different property is “well beyond the scope of the powers conferred on the Court by s 71(4) of the SACAT Act”.16 28 There is little point in granting the applicant an opportunity to amend the notice or grounds or indeed in allowing the matter to go to hearing. To do so would, in the circumstances, unnecessarily put these parties to further time, trouble and cost.17 Reflecting on the history of this matter, the assistance given by this Court today and on previous occasions, the issues apparently in dispute, and the absence of any evident utility in these appeal proceedings, I am satisfied that this is a proper case for summary dismissal. 29 Whilst the litigation guardian sought to raise a number of broader issues relating to the applicant’s autonomy and housing options, these were all clearly outside the scope of the appeal and cannot be addressed. This Court is presently concerned only with the appeal and its proper disposition. Conclusion 30 The applicant’s appeal has no reasonable prospect of succeeding. There is no utility in the appeal. In the circumstances, I am satisfied that it is in the interests of justice that the appeal be dismissed. 31 The appeal, and the application for leave to appeal, are dismissed. There will be an order for costs in favour of the respondent fixed in the amount of $2,000. 14 Miojlic v City of Onkaparinga Council [2025] SASCA 2, [17] (Livesey P). 15 Miojlic v City of Onkaparinga Council [2025] SASCA 2, [18] (Livesey P). 16 Franklin v South Australian Housing Authority [2024] SASCA 3, [24] (Livesey P). 17 See Miojlic v City of Onkaparinga Council [2025] SASCA 2, [18] (Livesey P); Uniform Civil Rules 2020 (SA), r 1.5. -- 8 of 8 --