D M C In Person v PUBLIC TRUSTEE [2025] SASC 136

On Appeal from SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (SENIOR MEMBER RUGLESS) 2024/SIR000209 Applicant: D M C In Person Respondent: PUBLIC TRUSTEE Counsel: MR R LAWTON - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 15/08/2025 File No/s: CIV-25-007951 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) 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. D M C v PUBLIC TRUSTEE [2025] SASC 136 Judgment of the Honourable Justice Gray (ex tempore) 15 August 2025 ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS HEALTH LAW - GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY - ADMINISTRATION AND FINANCIAL MANAGEMENT - REVIEW, REVOCATION, ETC This is an appeal against orders of a senior member of the South Australian Civil and Administrative Tribunal (‘SACAT’) refusing permission to the appellant to internally review a decision of a member of SACAT in the original jurisdiction to affirm, but vary, an administration order. The appellant seeks leave to appeal on the basis that he has a right to self-determination of his finances, and that he has the capacity to manage his finances. Public Trustee, as the respondent, submitted that an appeal to the Supreme Court requires leave and that leave should be refused. The matters raised by the appellant are matters to be considered afresh in the original jurisdiction of SACAT. Held, refusing leave to appeal: 1. There is no merit in the grounds of appeal raised by the appellant, and there is no matter of substance which is reasonably arguable to justify a grant of leave to appeal: [38]. Guardianship and Administration Act 1993 (SA) s 5; South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71, referred to. Aldridge v Registrar of Firearms [2022] SASC 5; Draoui v Le [2021] SASCA 33; Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1; Pix v SA Housing Trust (2016) 125 SASR 10; Varricchio v Wentzal (2016) 125 SASR 198, considered. -- 1 of 9 -- -- 2 of 9 -- D M C v PUBLIC TRUSTEE [2025] SASC 136 Civil: Single Judge Appeal GRAY J (ex tempore): Introduction 1 This matter concerns an appeal against the orders of a senior member of the South Australian Civil and Administrative Tribunal (‘SACAT’). The Senior Member dismissed an application brought by Mr DMC (‘the applicant’ or ‘protected person’) for an internal review of a decision of a member in the original jurisdiction of SACAT to affirm, but vary, an administration order. 2 The applicant, who is self-represented on this appeal, seeks to appeal on the basis that he has a right to self-determination of his finances, and on the grounds that he has provided sufficient evidence of his capacity for self-determination of his finances. He sought modification of the orders granting Public Trustee certain powers to administer his financial affairs. 3 Public Trustee (‘the respondent’) contends that leave to appeal is required, and that leave should be refused. The respondent further contends that if leave is granted, the appeal should be dismissed. Background 4 The applicant was legally represented on the internal review. It was submitted on the internal review that he is a 30-year-old man with a diagnosis of intellectual disability (‘ID’), attention deficit hyperactivity disorder (‘ADHD’), attachment disorder, anxiety disorder and a well-established attachment and anxiety disorder relating to an extensive trauma history. As a child, the applicant experienced ongoing abuse and abandonment. He was placed in foster care in 2007, when he was around 13 years of age. He lived from that time in a series of residential care placements, and as an adult, he has lived in various forms of accommodation including with friends, in motels, and in supported accommodation. The Public Advocate is appointed as the applicant’s guardian. The applicant did not challenge that order in the proceedings before SACAT. 5 An administration order (full) was made in respect of the applicant by the Guardianship Board of South Australia on 9 August 2012. It appears from the decision on internal review that a guardianship order in some form has, for the most part, been in place since that time. The applicant has made numerous applications, including in 2015, 2016 and 2018 to revoke the guardianship order. These applications were all unsuccessful. 6 On 6 March 2025, an application was brought by the applicant for an internal review of a decision of a member of SACAT of 6 August 2024, in the original -- 3 of 9 -- [2025] SASC 136 Gray J 2 jurisdiction pursuant to which an order was made affirming but varying the administration order (‘the 6 August 2024 decision’). 7 The 6 August 2024 decision of SACAT varied the administration order from a full administration order to a limited administration order. The respondent remained as the administrator. The administration was limited to managing the whole of the protected person’s estate and any income (such as his Centrelink entitlements), apart from any income received by the applicant from any employment he may obtain. 8 The applicant seeks that that order be revoked on this appeal. 9 On the internal review, the applicant, whilst expressing a preference for variation to the guardianship order made, submitted that he can manage his finances with only informal supports, and that, as a consequence, the administration order should be set aside in its entirety. 10 It was submitted on the internal review that the applicant currently resides in a house alone in Elizabeth Downs in supported independent living accommodation. He also receives support from NDIS support workers. At the internal review hearing, the applicant acknowledged that he had a cognitive impairment, but he did not agree that he continued to have a mental incapacity as defined in the Guardianship and Administration Act 1993 (SA). It was submitted on the internal review that, although the applicant has some decision-making incapacity concerning his finances, a guardianship order, even in the limited form, was not required because there are informal supports in place; he has accommodation and support with activities of daily life pursuant to his NDIS plan. 11 The informal supports that the applicant identified were the support through the NDIS plan provided by his support workers. Submissions were made to the Tribunal that, although NDIS support workers provide support with activities of daily living and might assist persons requiring care with access to their funds for matters such as taxi fares, support was generally not provided in terms of supports requiring financial management skills.1 12 The Tribunal, in the decision on the internal review, noted that the applicant had accepted that he had, in the past, had difficulties with gambling, but submitted that he had taken steps to address these difficulties. Information was also provided to the Tribunal on the internal review from the respondent indicating that the applicant was in a position of significant vulnerability both personally and financially. 13 The respondent identified, on the internal review, evidence of the applicant’s poor and/or impulsive financial decision-making skills, including various legal matters involving the applicant, including breach of bail, a recent period of incarceration, and numerous reports from his support workers and the Public 1 See Respondent’s Appeal Book (FDN 10) (‘AB’) at 30, [15]. -- 4 of 9 -- [2025] SASC 136 Gray J 3 Advocate concerning multiple reports of sexual assault being made to South Australian Police. 14 The respondent also made submissions on the internal review in relation to a significant history of vehicle purchases, with the respondent approving five purchases of vehicles, which were subsequently stolen and/or sold and traded for much lower prices than the purchase price. As a consequence of this, the respondent submitted that the respondent no longer supported the applicant purchasing vehicles from cash held by the respondent, given his history of poor decision-making regarding the vehicle purchases. The decision of the Senior Member on the internal review set out in detail some of these concerns in relation to the applicant’s dealings with cars. Concerns were also raised concerning the applicant’s attempts to withdraw his super funds to further purchase a vehicle. 15 The respondent also pointed to the applicant paying money to a credit score company, which involved him making direct debits from his bank account to an online company in return for a promise to assist him with rectifying his credit reputation so that he could gain access to a car loan in the future. Concerns were raised by a case officer from the respondent about whether this scheme was a scam. 16 The Senior Member held:2 I am comfortably satisfied that the Tribunal Member at first instance was correct to find that [the protected person] has an ongoing mental incapacity in relation to the ability to manage his finances and that the Administration Order is still required and should remain in place. Had I been required to do so (if I had granted permission for the review to proceed) I would have found that the correct and preferable decision on review is to affirm the orders made by Member Clarke in the ordinary jurisdiction. I consider that the decision to vary the order to permit the applicant to manage his wages is the correct or preferable decision, although I have some disquiet about that decision. In my view the evidence supports a full Administration Order remaining in place [to] protect [the protected person’s] finances and to protect him from being preyed upon by other persons for his assets and cash. 17 Having made those observations, the Senior Member went on to hold:3 In that regard I note that an internal review may only proceed on a grant of leave (permission) and that the test is whether it is just in all the circumstances to do so, determined by reference to whether the applicant has an arguable case, and whether there is a principle or interest at stake that would warrant a grant of permission. The Tribunal adopts the following approach as set out by Justice Parker in Re AKS [2016] SACAT 19 (at para 14) in determining whether or not leave should be granted: …the Tribunal should take the same approach to the exercise of its discretion… to grant permission for an internal review as is taken by the Supreme Court when it decides whether or not to grant permission for a civil appeal. The overriding 2 AB at 33, [32]-[33]. 3 AB at 33, [35]-[36]. -- 5 of 9 -- [2025] SASC 136 Gray J 4 principle is always the interests of justice. The ordinary approach is that permission will only be granted where an appeal is reasonably arguable, and the subject matter is of sufficient substance to justify consideration. (citations omitted) 18 The Senior Member then concluded:4 I am not satisfied that it is appropriate to grant permission for the applicant to seek an internal review in this matter given that the protected person challenges the finding that he has a mental incapacity regarding financial management but has not adduced any additional evidence on internal review to refute the overwhelming evidence about that issue that is before the Tribunal. There is, similarly, no evidence before me to establish that the applicant can manage his finance decision making with informal support. 19 The Senior Member went on to consider the evidence concerning the applicant’s medical incapacity and the evidence from an occupational therapist concerning difficulties that the applicant had with managing his finances. The occupational therapist’s report provides as follows:5 …This OT report evidences considerable cognitive deficits that heavily influence [the protected person’s] inability to manage finances, with challenges with problem solving, abstract thinking, impulsivity, and vulnerability. These cognitive deficits have far-reaching impacts on [the protected person’s] capacity to manage his finances. He is at high risk of exploitation and lacks awareness and skills in his capacity to fully understand and address this behaviour. He continues to be at high risk of impulsive decision-making, which places him at risk. There are ongoing reports of [the protected person] being at risk due to his level of vulnerability, with an incident as recent as in the past week of [the protected person] being sexually assaulted due to his vulnerability. 20 The Senior Member, in her decision,6 also had regard to a report from the respondent which raised some very concerning matters about the applicant’s continued vulnerability and impulsive financial decision-making. The applicant was reported as being a very vulnerable man who was repeatedly preyed upon by other unscrupulous persons to his personal and financial disadvantage. 21 The Senior Member noted that some sense of financial agency was reported as assisting the applicant to recover from his history of trauma and abuse and that, in that respect, the varied order may go some way to achieving that aim.7 22 The Senior Member considered that an arguable case had not been raised and there was no principle of law that was deserving of permission being granted, and that there was no merit in the application for internal review.8 4 AB at 33-4, [37]-[38]. 5 AB at 36, [49]. 6 AB at 36, [50]. 7 AB at 37, [56]. 8 AB at 37, [57]. -- 6 of 9 -- [2025] SASC 136 Gray J 5 23 The applicant was self-represented on this appeal. He indicated that he had the opportunity to receive legal advice prior to this hearing and that he wanted the matter to proceed and to appear as a self-represented party. The applicant gave evidence on the appeal adopting a statutory declaration and by reference to documents contained in the appeal book. 24 In submissions, the applicant indicated that he can manage his own money. He may make poor decisions, but he can make decisions. In relation to his dealings with cars, the applicant says he can buy and sell cars. The applicant also says that with the assistance of a support person, he can manage his own finances. 25 The respondent, in oral submissions, indicated that the applicant being unhappy with the decision of SACAT is not a basis for seeking review. SACAT is a specialist tribunal and a more appropriate forum for addressing the matters raised at this hearing because it provides a more informal process and is not bound by strict rules of evidence. The respondent also referred to the regard that SACAT had to the principles contained in s 5 of the Guardianship and Administration Act 1993 (SA). Relevant legal principles 26 An appeal to this court from a decision of a senior member requires leave.9 27 The court should only grant leave to appeal from a SACAT internal review decision where the appeal is reasonably arguable, and the subject matter is of sufficient substance to justify consideration.10 28 It is important that leave is not granted as a matter of routine. SACAT is a specialist tribunal, and the granting of leave too readily would undermine the legislative intention to establish SACAT as a specialist tribunal.11 29 The overarching consideration is the interests of justice.12 Consideration 30 As the applicant was advised during this hearing, an appeal to this court is not a review of the merits.13 Many of the matters raised by the applicant in oral submissions made at this hearing concern the merits of the decision made by 9 South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71(2). 10 See, as to being reasonably arguable: Jackson v Lepp Investments Pty Ltd [2016] SASC 62; (2016) 125 SASR 1 at 5-6, [19]-[20] (Parker J); Pix v South Australian Housing Trust [2016] SASCFC 57; (2016) 125 SASR 10 at 11, [3] (Kourakis CJ, with Bampton and S Doyle JJ agreeing). See, as to substance: Aldridge v Registrar of Firearms (SA) [2022] SASC 5 at [33] (Parker J). 11 Varricchio v Wentzel [2016] SASC 86; (2016) 125 SASR 191 at 198, [37] (S Doyle J). 12 Jackson v Lepp Investments Pty Ltd [2016] SASC 62; (2016) 125 SASR 1 at 5, [19] (Parker J); Pix v South Australian Housing Trust [2016] SASCFC 57; (2016) 125 SASR 10 at 11, [3] (Kourakis CJ, with Bampton and S Doyle JJ agreeing). 13 Aldridge v Registrar of Firearms (SA) [2022] SASC 5 at [54] (Parker J). -- 7 of 9 -- [2025] SASC 136 Gray J 6 SACAT. The applicant repeated many of the submissions that were raised before the Senior Member on the internal review. 31 I have had regard to the principles in s 5 of the Guardianship and Administration Act 1993 (SA) in considering this matter. I accept that the refusal of leave will have an impact upon the applicant’s ability to manage his own monies and that such an order is restrictive of his rights and personal autonomy. I have also had regard to the wishes expressed by the applicant to manage his own finances and to all of the matters that the applicant has raised. 32 In my view, the internal review decision does not exhibit any error of law. The Senior Member stated and applied the correct test in considering the question of permission to seek an internal review.14 33 The decision on review is not unreasonable, illogical or irrational.15 The Senior Member carefully analysed and considered the submissions advanced by the applicant. The Senior Member also carefully assessed and weighed the evidence presented by the respondent on the internal review. The weight to be given to particular evidence received by SACAT on the internal review is a matter for SACAT to assess and, absent the form of error identified above in the assessment of this evidence, it is not a matter which is generally susceptible to appellate review.16 34 It follows that I have not identified appellable error in the decision of the Senior Member. There is no process error such as an error in the reasoning process, nor is there an error in the outcome that is identified. The Senior Member identified that she considered that the variation to the order to permit the applicant to manage his wages was the correct and preferable decision.17 The Senior Member followed a correct process in reaching the view that the evidence supports an administration order remaining in place to protect the applicant’s finances and to protect him from being preyed upon by other persons for his assets and cash.18 35 In respect of the matters that the applicant raised about his difficulties accessing funds from Public Trustee to obtain legal representation to address other legal proceedings in which the applicant is involved, I have given consideration to these matters and it would be a concern if funds were not being provided to the applicant to obtain legal representation. Public Trustee submitted that it was not correct that funds were not provided to the applicant to obtain legal representation, including in relation to this appeal. 36 The submissions that the applicant made, including that he had had the opportunity to obtain legal advice in respect of this application for leave to appeal 14 AB at 33, [35]-[36]. 15 House v The King (1936) 55 CLR 499; Aldridge v Registrar of Firearms (SA) [2022] SASC 5 at [33] (Parker J). 16 Aldridge v Registrar of Firearms (SA) [2022] SASC 5 at [75] (Parker J). 17 AB at 33, [33]. 18 AB at 33, [33]. -- 8 of 9 -- [2025] SASC 136 Gray J 7 to the court, and that he wanted to proceed as a self-represented litigant, do not entirely align with all of the submissions he made concerning his difficulties accessing funds for legal representation. The applicant was legally represented on the internal review before SACAT, and he indicated that he also had a legal aid solicitor in respect of his other legal proceedings. The applicant also acknowledged that the issue concerning legal representation primarily arose after the decision on the internal review. The respondent submits that if there are new matters to be raised associated with the administration of his finances by the Public Trustee, then those matters should be raised in the first instance in SACAT in its original jurisdiction. I accept that submission. 37 There is a public interest in the finality of litigation,19 and the issue before this court today concerns the application for leave to appeal in respect of the decision of the Senior Member on the internal review. Conclusion 38 I have considered the merits of the grounds of appeal raised by the applicant in relation to the decision of the Senior Member. I find no merit in those grounds. It follows that there is no matter of substance which is reasonably arguable to justify a grant of leave to appeal. In my view, the interests of justice would not be served by a grant of leave in this matter.20 I refuse leave to appeal. If necessary, in any event as I find no merit in the grounds raised, I would have dismissed the appeal. 19 Draoui v Le [2021] SASCA 33 at [112] (S Doyle JA, with Lovell and Livesey JJA agreeing). 20 Jackson v Lepp Investments Pty Ltd [2016] SASC 62; (2016) 125 SASR 1 at 5, [19] (Parker J); Pix v SA Housing Trust [2016] SASCFC 57; (2016) 125 SASR 10 at 11, [3] (Kourakis CJ, with Bampton and S Doyle JJ agreeing). -- 9 of 9 --