KJS In Person v GMS [2024] SASCA 85

On Appeal from SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (DEPUTY PRESIDENT JOHNS) 2023/SIR000226 Applicant: KJS In Person Respondent: GMS Counsel: PROF L JONES - Solicitor: LEGAL SERVICES COMMISSION (SA) Hearing Date/s: 19/07/2024 File No/s: CIV-24-005495 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. KGS v GMS [2024] SASCA 85 Judgment of the Honourable Acting Chief Justice Livesey (ex tempore) 19 July 2024 ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL The applicant seeks leave to appeal against the decision of a Court of Appeal judge, striking out her Notice of Appeal pursuant to r 212.5(2)(b) of the Uniform Civil Rules 2020 (SA). The earlier Notice of Appeal sought leave to appeal from the South Australian Civil and Administrative Tribunal (the Tribunal), which dismissed her application for a review against the dismissal of her application to be appointed guardian of her granddaughter. The first notice did not identify any arguable error made by the Tribunal. The appeal judge attempted to explain why it was necessary for her to identify a reasonably arguable error before the application for leave to appeal could be entertained. At the hearing of the callover concerning the second notice of appeal, attempts were again made to explain why the second notice needed to identify an arguable error in the decision made by the Court of Appeal judge. Despite being given an opportunity to amend her Notice of Appeal, the applicant has failed to identify any arguable error or injustice in the decision of the appeal judge. The second Notice of Appeal failed to comply with the Rules of Court. Held – striking out the applicant’s second Notice of Appeal: 1. Whilst it is necessary to provide unrepresented parties with assistance in an attempt to keep hearings free from error or misunderstanding, the Court cannot conduct the case for the unrepresented litigant. The Court cannot advise the unrepresented litigant. 2. It remains fundamental that any assistance given by this Court must not detract from the neutrality of the Court, nor from the fair disposition of the matter from the perspective of all parties before the Court. -- 1 of 8 -- 3. The proposed grounds of appeal in the subject, second Notice of Appeal dated 12 June 2024 identify no arguable ground of appeal, and no basis upon which this Court could grant permission to appeal. 4. As there has been a fundamental failure to comply with the Rules of Court, despite the applicant having had an opportunity to remedy her defective Notice of Appeal, it is appropriate to exercise the power conferred by r 212.5(2)(b) of the Uniform Civil Rules 2020 (SA) and strike out the second Notice of Appeal. Guardianship and Administration Act 1993 (SA) s 64; South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71; Supreme Court Act 1935 (SA) s 50; Uniform Civil Rules 2020 (SA) s 212.5, 213.1, referred to. Gassy v The King [2023] SASCA 90; GKK v Department of Health and Ageing [2018] SACAT 30; Martincic & Anor v Ethnic Broadcasters Inc [2024] SASCA 33, considered. -- 2 of 8 -- KGS v GMS [2024] SASCA 85 Court of Appeal – Civil LIVESEY A/CJ (ex tempore): Introduction 1 This is an application for leave to appeal against an interlocutory order made by an appeal judge. On 23 February 2024 the judge struck out the applicant’s Notice of Appeal because it failed to disclose any arguable error by a Deputy President of the South Australian Civil and Administrative Tribunal (the Tribunal). 2 The order which was the subject of that first Notice of Appeal was made by Deputy President Johns on 5 January 2024. She refused the applicant permission to pursue an application for review of an order made by the Tribunal on 11 September 2023. By that order the Tribunal dismissed the applicant’s application for orders that she be appointed the guardian of her granddaughter under the Guardianship and Administration Act 1993 (SA). 3 It is necessary to outline the issues the subject of the first Notice of Appeal which was struck out before addressing the present Notice of Appeal. As will be seen, after the defects in an earlier notice were explained, the applicant amended her Notice of Appeal. For the following reasons, that second Notice of Appeal must also be struck out. The Tribunal hearing 4 The background to this matter was helpfully explained by Deputy President Johns in her reasons dated 19 October 2023 as follows:1 In summary, Ms [S’s] situation is as follows. She seeks a guardianship order in relation to her grand-daughter [GS]. [GS] is the daughter of Ms [S’s] daughter. Ms [S] is estranged from her daughter and this means that she has no direct contact with [GS]. Ms [S] says that [GS] lived with her for a while when she was younger. The family moved interstate but have now returned to South Australia. Ms [S] says that [GS] has been identified with developmental delays, she is deaf and she may be autistic. Ms [S] says that [GS] is at risk in her current living arrangements (with her mother), but as she is unable to have access to [GS], she has been unable to obtain a current medical or psychological assessment of her mental capacity. Ms [S] says that she has exhausted all other avenues of trying to get authorities involved in [GS’s] case (for example, when [GS] was under 18, she made reports to relevant government agencies, and since she turned 18 she has reported her case twice to the Adult Safeguarding Unit but has heard nothing and nothing has changed in relation to [GS’s] situation). 1 KGS v GMS (SACAT, Deputy President Johns, 19 October 2023), [4]. -- 3 of 8 -- [2024] SASCA 85 Livesey A/CJ 2 5 I was told by the applicant’s daughter that she was appointed guardian of her daughter earlier this year. 6 The Deputy President explained that the applicant considered the original Tribunal order incorrect because the Tribunal should have issued a summons or taken steps to obtain the necessary evidence. As the Deputy President recorded in her reasons, she gave extensive advice and information to the applicant about how she might go about addressing her concerns. 7 The Deputy President made it clear to the applicant that though the Tribunal had an inquisitorial role, it was not an investigative body, and it was necessary for the applicant to put evidence before the Tribunal.2 She issued directions to the applicant to lodge a submission in support of her application, and any further documents on which she wished to rely, so as to support an application for permission for the application for internal review pursuant to s 64(c) of the Guardianship and Administration Act 1993 (SA). 8 The Deputy President directed that these be supplied by Thursday, 16 November 2023. She reserved the right to make an order dismissing the application without any further hearing should she consider that the information provided was not sufficient. 9 In her brief supplementary reasons delivered on 5 January 2024, the Deputy President recorded that the applicant had not lodged any further submissions or evidence and, in those circumstances, she was not satisfied that permission should be granted because she was not satisfied that the application for internal review was reasonably arguable. Accordingly, the application was dismissed. The first Notice of Appeal 10 The first Notice of Appeal concerned an application for leave to appeal from the Tribunal pursuant to s 71(2) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) and r 213.1(1)(d) of the Uniform Civil Rules 2020 (SA). 11 By her first Notice of Appeal dated 7 February 2024, the applicant relied on only one ground of appeal: 1. Due to the Privacy Act I was unable to complete the compulsory component of the requirements of the application for the Medical Report Matter … 12 When the matter came before Doyle JA at the Court of Appeal callover on 23 February 2024, he attempted to explain to the applicant why it was necessary for her to identify a reasonably arguable error before the application for leave to appeal could be entertained. In the course of a 10-minute hearing it is clear that the applicant did not understand what was required of her. She tended to repeat the fact that she could not obtain medical information. She did not attempt to explain 2 Citing GKK v Department of Health and Ageing [2018] SACAT 30, [23]-[25]. -- 4 of 8 -- [2024] SASCA 85 Livesey A/CJ 3 whether or not she had heeded the advice of the Deputy President or made any other attempt to obtain the information required. 13 The appeal notice was struck out pursuant to r 212.5(2)(b) of the Uniform Civil Rules 2020 (SA). The second Notice of Appeal 14 Undeterred, the applicant applied for leave to appeal against that interlocutory decision, presumably pursuant to s 50(4)(b) of the Supreme Court Act 1935 (SA) and r 213.1(1)(a) of the Uniform Civil Rules 2020 (SA). 15 The second Notice of Appeal dated 12 June 2024 initially contained the following grounds of appeal: 1. On 23/02/2024 Justice Doyle stated upon commencement of court proceedings that the this was not his jurisdiction and was inclined to strike the matter out. 2. Respondent GS still had 16 days left in which to respond. 3. On 23/02/2024 Justice Doyle struck the matter out. 16 At the hearing before me on 12 July 2024, I attempted to explain the necessity for the applicant to identify an error concerning the decision made by Doyle JA. I also attempted to explain the need for an error to be identified in the first Notice of Appeal concerning the decision made by the Deputy President. 17 The applicant’s principal response was that the error was demonstrated by the appeal judge’s statement that “This was not his jurisdiction”. I made further attempts to explain to the applicant that the transcript of the hearing did not support the assertion that the appeal judge had said words to that effect. The applicant took issue with this, remonstrating that she was at the hearing and that I was not. 18 After I made another attempt to explain the need for error to be identified, I adjourned the matter for seven days so as to give the applicant an opportunity to consider whether she could identify an arguable error in the decision of the Deputy President and the decision of the appeal judge. 19 On 16 July 2024 the applicant amended her Notice of Appeal and included the following grounds: 1. The Applicant was unable to complete the compulsory component of the SACAT Community List Application ID No 18,43134. 2. The SACAT Medical or Psychological Report Form Mental Capacity Guardianship and Administration Act I993 Matter Number 2023/SCO04tOt. 3. FOI [suppressed] 5 September 2023. Unfortunately, in this instance we are unable to release the information to you as you do not have consent on [suppressed]’s file. -- 5 of 8 -- [2024] SASCA 85 Livesey A/CJ 4 4. SACAT may be able subpoena the NDIA for the information by contacting information. request@ridis. gov. au. 5. NDIS 6 March 2024 Ref. NO F0123/24-0650. Decision to access documents refused under Section 47F of the FOl Act. 6. OAIC -FOI DR 7 May 2024 Paragraph 3 Please note re review process can take a considerable amount of time We are currently prioritising matters we received in 2019 and 2020. 7. NDIS FOl request - Reasons for Decision. Personal Privacy (Section 47F). 20 The following orders were sought: That the ruling made on 23 February 2024 by Justice Doyle be struck out and the Appeal be reinstated for rehearing. 21 And then later: Order to be made for the release of the compulsory medical information, required to complete the SACAT Medical or Psychological Report Form Mental Capacity Guardianship and Administration Act 1993, by NDIA to SACAT. 22 The amended grounds and orders are notable for two features. First, they do not identify any error by the appeal judge. Secondly, they assume that this Court can facilitate the obtaining of a suite of documents, intended to support a guardianship application in the Tribunal, but not the appeal in this Court. 23 No attempt has been made to show that the avenues which were taken by the applicant were inappropriately refused by the authorities concerned, nor that any of those decisions was associated with error which might be remedied under statute or on judicial review. Whilst there are procedures that might possibly be available in the General Division of this Court, they have not been invoked and cannot be invoked for the first time on an application for permission to appeal in the Court of Appeal. The disposition of the application for leave to appeal 24 The Rules of Court apply to all litigants in the Court of Appeal, whether or not they are legally represented. Compliance with the Rules, at least in a substantial way, is necessary so as to provide procedural fairness to the opposing litigant and to avoid the limited resources of this Court being wasted on time-consuming hearings during which attempts are made to determine whether a party has a case.3 25 Whilst it is necessary to provide unrepresented parties with assistance in an attempt to keep hearings free from error or misunderstanding, the Court cannot conduct the case for the unrepresented litigant. The Court cannot advise the unrepresented litigant. What is required to ensure a fair hearing will inevitably 3 Martincic & Anor v Ethnic Broadcasters Inc [2024] SASCA 33, [30]-[31] (Livesey P). -- 6 of 8 -- [2024] SASCA 85 Livesey A/CJ 5 depend upon the facts and circumstances of any particular case, particularly the nature of the issue before the Court.4 26 It remains fundamental that any assistance given by this Court must not detract from the neutrality of the Court, nor from the fair disposition of the matter from the perspective of all parties before the Court.5 27 Clearly if, despite the applicant’s inability to identify error, it was possible to discern arguable error in the materials, then it may have been possible for this Court to raise the issue with the parties so that they could address the potential existence of an arguable error, together with the best means by which this might be articulated, in a manner fair to all parties. 28 However, having read the materials concerning the hearings in the Tribunal last year and in this Court earlier this year, there is no apparent error and the applicant remains confounded by her inability to obtain the evidence necessary to present a viable application for a guardianship order. The applicant should probably seek further legal advice. 29 The appeals since have really been attempts to try and help the applicant to gather the necessary medical material. That does not suggest error by the Tribunal or the appeal judge. Rather, it suggests that the applicant is uncertain and frustrated about the practical steps she must take to address the requirements for making a viable guardianship application. 30 In this context, it is clear that the proposed appeal grounds in both Notices of Appeal are seriously deficient. As Doyle JA suggested, the applicant’s best course is probably to heed the advice of the Deputy President, make contact with the department she mentioned and, ultimately, make a new application in the Tribunal. I make these observations without in any way suggesting that an application for a guardianship order has merit or should be made in favour of the applicant, nor that the order apparently made in favour of her daughter should be displaced. I have no information about those issues. 31 For present purposes, it is sufficient for me to find that the proposed grounds of appeal in the subject Notice of Appeal dated 16 June 2024 identify no arguable ground of appeal, and no basis upon which this Court could grant permission to appeal. 32 As there has been a fundamental failure to comply with the Rules of Court, despite the applicant having had an opportunity to remedy her defective Notice of Appeal, it is appropriate to exercise the power conferred by r 212.5(2)(b) of the Uniform Civil Rules 2020 (SA) and strike out that Notice of Appeal. 4 Martincic & Anor v Ethnic Broadcasters Inc [2024] SASCA 33, [21]-[23] (Livesey P), citing Gassy v The King [2023] SASCA 90, [33]-[36] (Livesey P, David JA and Stein AJA). 5 Martincic & Anor v Ethnic Broadcasters Inc [2024] SASCA 33, [24] (Livesey P), citing Gassy v The King [2023] SASCA 90, [37] (Livesey P, David JA and Stein AJA). -- 7 of 8 -- [2024] SASCA 85 Livesey A/CJ 6 Conclusion 33 The Notice of Appeal dated 16 June 2024 is struck out. -- 8 of 8 --