AMMUN LUCA In Person v ALEXANDRA ECKERT [2024] SASCA 60

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE MCDONALD) CIV-24-002392 Applicant: AMMUN LUCA In Person Respondent: ALEXANDRA ECKERT Counsel: MR K JACKSON - Solicitor: CARPENTER & ASSOCIATES Interested Party: SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL Counsel: MR M MILLBURN Hearing Date/s: 18/04/2024 File No/s: CIV-24-003409 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. LUCA v ECKERT [2024] SASCA 60 Judgment of the Honourable Justice Bleby (ex tempore) 18 April 2024 APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS Application for permission to appeal against a decision of this Court on 4 April 2024 striking out a Notice of Appeal from a decision of the South Australian Civil and Administrative Tribunal (‘SACAT’). The decision of SACAT pertained to Dr Maros, who is the mother of the applicant and the respondent. The orders made by SACAT concerned her care under the Guardianship Administration Act 1993 (SA) and the Advance Care Directive Act 2013 (SA). The two grounds of appeal contended by the applicant were that the learned judge erred at law in dismissing the Notice of Appeal, as, amongst other things, the Tribunal did not have jurisdiction to hear the matter, and that orders for costs were misconceived. Held: 1. The Notice of Appeal is struck out pursuant to Uniform Civil Rules 2020 (SA) r 212.5(2)(b). 2. The applicant must pay the costs of the respondent Ms Eckert, fixed in the sum of $1,200. -- 1 of 5 -- Advanced Care Directives Act 2013 (SA) ss 48, 51; Guardianship and Administration Act 1993 (SA) ss 3, 29, 35; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 70, 71; Uniform Civil Rules 2020 (SA) r 212.5(2)(b), referred to. Burns v Corbett (2018) 265 CLR 304; German v Germantis [2023] VSR 7; GS v MS (2019) 344 FLR 386, discussed. -- 2 of 5 -- LUCA v ECKERT [2024] SASCA 60 Court of Appeal – Civil 1 BLEBY JA: This is an application for leave to appeal against a decision of McDonald J on 4 April 2024 striking out a Notice of Appeal from a decision of the South Australian Civil and Administrative Tribunal (‘SACAT’). McDonald J held that this Court had no jurisdiction to hear the appeal, absent the decision being made the subject of an internal review pursuant to s 70 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (‘SACAT Act’). 2 Ammun Luca is the son of the protected person, Dr Kathleen Maros. He was named as an interested party in the underlying proceedings before SACAT. Ms Alexandra Eckert is his sister, and was the applicant in the SACAT proceedings, which were held on 1 March 2024. Ms Eckert applied to SACAT for various orders concerning the care of Dr Kathleen Anne Maros pursuant to the Guardianship and Administration Act 1993 (SA) (‘GAA’) and the Advance Care Directive Act 2013 (SA) (‘ACDA’). Mr Ammun Luca was involved in those proceedings as an interested party. 3 On 8 March 2024, SACAT (members C Lester and R Croser) made Guardianship and Administration orders in respect of Dr Maros under ss 29 and 35 of the GAA and ss 48 and 51 of the ACDA. SACAT purported to make these decisions in its original jurisdiction. The orders included revocation of the appointments of substitute decision makers, that the current advance care directive remain in place, and that Michael Maros (Dr Maros’s husband) and the Public Advocate were to be appointed as full Guardians of Dr Maros. The Public Trustee was appointed full administrator of the estate of Dr Maros. 4 SACAT also made an order that ‘the interlocutory application to dismiss the proceedings filed by Mr Luca on 23 January 2024, 14 February 2024 and 27 February 2024 are dismissed.’ Mr Luca’s appeal to the Supreme Court 5 Mr Luca purported to appeal to the Supreme Court, pursuant to s 71 of the SACAT Act. He asserted, among other things, that the Tribunal did not have jurisdiction to hear the matter on account of Ms Eckert’s interstate residence. While his constitutional invocations were broad, the essence of his complaint appears to be sourced as a matter of principle in the decision of the High Court in Burns v Corbett.1 The application of the principles enunciated in that case to the jurisdiction to make Guardianship and Administration orders have been considered at length in Western Australia2 and Victoria.3 More fundamentally, Mr Luca 1 (2018) 265 CLR 304. 2 GS v MS (2019) 344 FLR 386; [2019] WASC 255. 3 German v Germantis [2023] VSC 7. -- 3 of 5 -- [2024] SASCA 60 Bleby JA 2 purported to bring the appeal notwithstanding that an internal review had not been conducted by the Tribunal. 6 On 27 March 2024, McDonald J conducted a directions hearing. She expressed the view that the Tribunal’s orders were made in the exercise of its original jurisdiction, and that the Supreme Court therefore did not have jurisdiction to hear the appeal without an internal review first being conducted by SACAT. Her Honour indicated, on that basis, that the application will be dismissed but invited written submissions on the issue of the Supreme Court’s jurisdiction. 7 On 4 April 2024, McDonald J struck out Mr Luca’s Notice of Appeal. 8 McDonald J considered that the Notice of Appeal was accepted by Registry in error. She held that this was on the basis of s 71(2a) of the SACAT Act, which provides: (2a) Without limiting subsection (2), an appeal against a decision of the Tribunal in the exercise of its original jurisdiction, or in a case where the Tribunal is constituted by a registrar or other member of the staff of the Tribunal, may not be instituted under this section unless or until a review of the decision has been conducted under section 70. 9 McDonald J observed that as the appeal was against a decision of the Tribunal in the exercise of its original jurisdiction, the appropriate avenue for Mr Luca would be to challenge the orders of the Tribunal by an internal review pursuant to s 70 of the SACAT Act. In the event Mr Luca was unsuccessful on internal review, it would then be open to him to seek leave to appeal to the Supreme Court pursuant to s 71(2) of the SACAT Act. She concluded that the Supreme Court did not have jurisdiction to hear the appeal and that the appeal was incompetent. 10 She ordered that the Notice of Appeal be struck out; and that any submissions about any orders for costs were to be made in writing by 26 April 2024. The appeal and interlocutory Applications 11 Mr Luca has now filed a Notice of Appeal against McDonald J’s decision. The Grounds of Appeal are expressed as follows: 1. That HH the learned judge at first instance, erred at law in dismissing the Notice of Appeal. 2. That orders for costs were misconceived and that pursuant to Section 64(j) of the Guardianship and Administration Act 1993 “no order for costs may be made against the applicant in an appeal under section 71 of the South Australian Civil and Administrative Tribunal Act 2013 if he or she is the person to whom the decision appealed against relates”. 12 Mr Luca also seeks, by Interlocutory Application, orders setting down the matter urgently. The essential reasons for seeking an urgent disposition are -- 4 of 5 -- [2024] SASCA 60 Bleby JA 3 concerned with Dr Maros’s age and ill health, and that the effect of the orders now in place is to cause his mother harm. 13 The respondent has also filed an Interlocutory Application. She seeks an order dismissing the appeal and an order for costs, fixed in the amount of $1,430. That affidavit is supported by an affidavit of the respondent’s solicitor, annexing the relevant documents and confirming that McDonald J has not yet made any order as to costs on the appeal before her. 14 The SACAT decision was purportedly made in the original jurisdiction of the Tribunal. There has been no internal review. It is incontrovertible that McDonald J was correct in holding that this Court had no jurisdiction to hear an appeal from that decision, absent an internal review. The prohibition in s 71(2a) of the SACAT Act on its duty in appeal under s 71 is absolute. Ground 1 of the Notice of Appeal is destined to fail. 15 Ground 2 of the Notice of Appeal, which concerns the order relating to costs, is premised on the perception that Mr Luca is the ‘person to whom the decision appealed against relates’. That term is defined in s 3 of the GAA: “person to whom the proceedings relate”, in relation to any proceedings before the Tribunal or a court, means the person who has or is alleged to have a mental incapacity or mental illness, or the protected person, as the case may be; 16 In this case, that is Dr Maros. This section provides no protection to Mr Luca. This complaint is without merit. In any event, McDonald J has made no order as to costs. 17 The Notice of Appeal is without merit. I order as follows: 1. Pursuant to the Uniform Civil Rules 2020 (SA) r 212.5(2)(b), I strike out the Notice of Appeal. 2. The applicant Mr Luca is to pay the costs of the respondent Ms Eckert, fixed in the sum of $1,200. -- 5 of 5 --