[2024] SASCA 136

On Appeal from SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (DEPUTY PRESIDENT JOHNS) 2024/SIR/000099 Applicant: AMMUN LUCA In Person First Respondent: ALEXANDRA ECKERT Counsel: MR K JACKSON - Solicitor: WELDEN & COLUCCIO LAWYERS Second Respondent: THE OFFICE OF THE PUBLIC ADVOCATE Counsel: MR T GOLDING KC Third Respondent: THE PUBLIC TRUSTEE Counsel: MR R LAWTON Fourth Respondent: MICHAEL MAROS Counsel: MR K JACKSON - Solicitor: WELDEN & COLUCCIO LAWYERS First Interested Party: SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL Counsel: MR T GOLDING KC - Solicitor: CROWN SOLICITOR (SA) Second Interested Party: THE ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA Counsel: MR T GOLDING KC Hearing Date/s: 27/11/2024 File No/s: CIV-24-009097 A 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 (No 2) [2024] SASCA 136 Judgment of the Court of Appeal (ex tempore) (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice David) 27 November 2024 HEALTH LAW - GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY - GUARDIANSHIP AND SIMILAR APPOINTMENTS ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL This is the applicant’s second attempt to challenge guardianship and administration orders made in 2023 by the South Australian Civil and Administrative Tribunal (the Tribunal) concerning his mother, Dr Maros. The applicant has challenged the jurisdiction of the Tribunal to make any orders on the basis of Federal diversity jurisdiction because his sister, the first respondent, resides interstate. The applicant’s first attempt was dismissed because he had not sought an internal review in the Tribunal. Before the applicant’s review could be heard, on 1 July 2024 Dr Maros died. The Deputy President dismissed the application for review. -- 1 of 8 -- Pursuant to s 71(2) of the South Australian Civil and Administrative Tribunal Act 2013 (SA), the applicant requires leave to appeal. The applicant contended leave to appeal should be granted because, if he was successful on appeal, he intended to a press a claim in damages. The applicant did not identify who would be sued or what cause of action could be relied on. Held (the Court) dismissing the application for leave to appeal: 1. The applicant has not identified any issue associated with the making of orders under the Advance Care Directives Act 2013 (SA) or the Guardianship and Administration Act 1993 (SA) which might warrant the intervention of the Tribunal, or which would be within the power of the Tribunal to address, following the death of Dr Maros. 2. The Tribunal does not have a power to make declarations. Even if it did, it is doubtful whether it would be an appropriate exercise of that power to pronounce on the validity of orders where that pronouncement would appear to have no practical effect on the protected person of her estate. 3. It is not for the Court of Appeal to undertake an advisory role, nor to determine hypothetical or purely academic questions. 4. The applicant must pay the costs of the first respondent, fixed in the amount of $2,000. Advance Care Directives Act 2013 (SA) ss 9, 11, 12, 13, 16, 18, 31, 48, 51; Crown Proceedings Act 1992 (SA) s 9; Guardianship and Administration Act 1993 (SA) ss 3, 5, 29, 30, 31, 32, 35, 36, 41; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 31, 48, 70, 71, referred to. Attorney-General (SA) v Raschke (2019) 133 SASR 215; Burns v Corbett (2018) 265 CLR 304; Edwards v Edwards (2009) 25 VR 40; Flowers v Hicks [2024] SASCA 126; German v Germantis [2023] VSC 7; GS v MS (2019) 344 FLR 386; Henderson v South Australian Housing Trust [2024] SASCA 55; Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1; JN Taylor Holdings Ltd (In Liq) v Bond (1993) 59 SASR 432; Luca v Eckert [2024] SASCA 60; Marschall v Elson (No 2) [2023] SASCA 3; Marschall v Elson [2023] SASCA 1; New South Wales v Gill [2024] NSWSC 1263; Pix v South Australian Housing Trust (2016) 125 SASR 10; Public Advocate v C, B (2019) 133 SASR 353; Re CQG [2018] SACAT 36; Re Full Board of the Guardianship and Administration Board (2003) 27 WAR 475; Re XHQ [2018] SACAT 11; Rediffusion (Hong Kong) Ltd v Attorney-General (Hong Kong) [1970] AC 1136 (PC), considered. -- 2 of 8 -- LUCA v ECKERT (No 2) [2024] SASCA 136 Court of Appeal – Civil: Livesey P, Doyle and David JJA THE COURT (ex tempore): Introduction 1 This is the applicant’s second attempt to challenge orders made in 2023 by the South Australian Civil and Administrative Tribunal (the Tribunal) concerning his mother, Dr Kathleen Maros, by commencing an appeal in this Court. 2 This case follows Luca v Eckert decided earlier this year.1 Bleby JA struck out the applicant’s Notice of Appeal because no internal review had been conducted by the Tribunal as was required by s 71(2a) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (the SACAT Act). 3 After that decision, on 1 July 2024 Dr Maros died. 4 The applicant’s latest Notice of Appeal was filed on 23 September and amended on 25 October, following decisions made by Deputy President Johns concerning his request for an internal review on 9 July and finally, on 26 August 2024, when she dismissed the review. Leave to appeal is required by s 71(2) of the SACAT Act. 5 Leave to appeal should be refused because it has not been shown that there is any utility associated with this appeal. Speaking generally, at least where it is said only that guardianship and administration orders could not have been made, there is no point permitting any challenge to those orders once the protected person has died. The first purported appeal 6 The applicant has been attempting to challenge guardianship and administration orders made by the Tribunal in its original jurisdiction concerning Dr Maros, pursuant to ss 48 and 51 of the Advance Care Directives Act 2013 (SA) (the Advance Care Directives Act) and ss 29 and 35 of the Guardianship and Administration Act 1993 (SA) (the Guardianship Act). Those orders included the revocation of the appointments of substitute decision-makers, that a current advance care directive remain in place and that Mr Michael Maros (the husband of Dr Maros) and the Public Advocate be appointed full guardians of Dr Maros. The Public Trustee was appointed full administrator of the estate of Dr Maros. 7 The applicant’s earlier purported appeal challenged the jurisdiction of the Tribunal to hear the matter because the applicant in the Tribunal proceedings, Ms Alexandra Eckert, the sister of the applicant and daughter of Dr Maros, resided 1 Luca v Eckert [2024] SASCA 60 (Bleby JA), effectively upholding the decision of McDonald J striking out a Notice of Appeal on 4 April 2024. -- 3 of 8 -- [2024] SASCA 136 The Court 2 interstate. The applicant wished to contend that Burns v Corbett applied, and the Tribunal had no jurisdiction to hear the matter and make any orders.2 8 The question of jurisdiction to make guardianship and administration orders has been addressed in this context in Western Australia3 and in Victoria.4 The decisions in those jurisdictions were to the effect that the power exercised by the relevant tribunal was administrative and not judicial, with the result that no issue of Federal diversity jurisdiction arose. The applicant’s present appeal seeks to raise the same point.5 9 Following the decision of Bleby JA, the applicant sought a review from the Deputy President, who gave directions on 9 July 2024 and, after hearing submissions, on 26 August 2024 dismissed the review on the basis that it was frivolous, vexatious or brought for an improper purpose within s 48(1) of the SACAT Act. The second purported appeal 10 The applicant now seeks leave to appeal what he claims is a point of law. At today’s hearing he was assisted by Mr Dickson. There was no opposition from any counsel to Mr Dickson providing assistance. 11 The Attorney-General was granted leave to intervene pursuant to s 9 of the Crown Proceedings Act 1992 (SA). Although the applicant applied for an order revoking leave, there was no merit in that application and it was dismissed. 12 Ms Eckert, Mr Maros, and the Public Trustee are parties to the appeal and they have either adopted or supported the arguments made by Mr Golding KC for the Attorney. The Office of the Public Advocate and the Tribunal made submitting appearances, and otherwise abided the event. 13 The Attorney submitted that the Tribunal’s jurisdiction ended when Dr Maros died and, in any event, the Tribunal should not have proceeded with the review because it was hypothetical and of no practical utility. Finally, it was contended that leave to appeal to this Court should be refused. 14 The applicant contended that his point of law should be determined because, as he told us today, if he succeeds, he intends to press a claim in damages. It is not 2 Burns v Corbett (2018) 265 CLR 304. 3 GS v MS (2019) 344 FLR 386 (Quinlan CJ). 4 German v Germantis [2023] VSC 7 (Richards J). 5 Cf Attorney-General (SA) v Raschke (2019) 133 SASR 215, [89] (Kourakis CJ, with whom Kelly and Hinton JJ agreed), where it was decided that there was a problem with Federal diversity jurisdiction concerning a residential tenancy dispute; Re CQG [2018] SACAT 36 (Executive Senior Member Rugless) where it was decided that there was no issue with Federal diversity jurisdiction concerning an application under the Guardianship Act. In this case, on 26 August 2024 the Deputy President followed the last-mentioned decision and found that the Tribunal had jurisdiction. -- 4 of 8 -- [2024] SASCA 136 The Court 3 apparent who would be sued or what cause of action could be relied on. He contended that the point has important ramifications across South Australia. The jurisdiction of the Tribunal 15 By s 31 of the SACAT Act, the Tribunal has “the jurisdiction conferred on it by or under this or any other Act”, including where a provision of an Act enables an application, appeal or claim to be brought before the Tribunal. 16 The Tribunal is conferred jurisdiction by the Advance Care Directives Act and the Guardianship Act. 17 The objects of the Advance Care Directives Act include enabling “competent adults to give directions about their future health care, residential and accommodation arrangements and personal affairs” (s 9(a)). Directions are given by completing the requisite form and having it witnessed (s 11(2)). The matters that cannot be made the subject of an advance care directive include provisions that would be unlawful, that preclude the refusal of mandatory medical treatment, and any request for “voluntary assisted dying” (s 12). Nothing in the Advance Care Directives Act authorises “an advance care directive to have the effect of giving a power of attorney” (s 13). An advanced care directive remains in force until the earlier of: any date specified, until it is revoked, or until the death of the person who gave the advance care directive (s 16). 18 Various provisions of the Advance Care Directives Act contemplate the exercise of jurisdiction by the Tribunal.6 19 The Guardianship Act is relevantly concerned with the making of guardianship or administration orders where the person the subject of those orders, the protected person, is unable to look after his or her own health and welfare, or manage his or her own affairs, by reason of mental incapacity (as defined by s 3(1)).7 Decisions and orders must be made having regard to the principles set out in s 5 of the Guardianship Act. 20 Where a guardian is appointed, the guardian has the powers conferred by the orders made by the Tribunal. By s 29, limited or full guardianship orders may be made. Any order is “made in respect of the person”, s 29(1)(c). Typically, a guardian will be responsible for making the decisions a protected person requires in connection with his or her personal affairs, including any medical and accommodation needs.8 The Tribunal may, for example, authorise the guardian to determine the protected person’s residence or even detention in a specified place under s 32.9 Generally, the guardian “has and may exercise, subject to this Act and 6 For example, by Advance Care Directive Act ss 18 and 31. 7 Edwards v Edwards (2009) 25 VR 40, [12] (Forrest J). 8 Re Full Board of the Guardianship and Administration Board (2003) 27 WAR 475, [43]-[44], (EM Heenan J, with whom Anderson and Miller JJ agreed). 9 Public Advocate v C, B (2019) 133 SASR 353 (Kourakis CJ, Kelly and Hinton JJ). -- 5 of 8 -- [2024] SASCA 136 The Court 4 the terms of the Tribunal's order, all the powers a guardian has at law or in equity” (s 31). 21 Where an administrator is appointed, the administrator has the powers conferred by the orders made by the Tribunal. By s 35, limited or full administration orders may be made. Again, any order is “made in respect of the person”, s 35(1)(b). Typically, an administrator will be appointed to manage a protected person’s financial affairs, whether concerning the whole of the protected person’s estate or some specified part of it. Where an administrator is appointed, s 39 stipulates that the administrator has the duties and obligations of a trustee. 22 Sections such as ss 29, 30, 35 and 36 of the Guardianship Act assume that the jurisdiction to make, vary or revoke guardianship and administration orders vests in the Tribunal. 23 The jurisdiction of the Tribunal extends to conducting the internal review procedure conferred by s 70 of the SACAT Act, where s 70(5) mandates that the Tribunal must “reach the correct or preferable decision” by having regard to, and giving appropriate weight to, the first instance decision made by the Tribunal. 24 In general terms, the jurisdiction conferred on the Tribunal by the Advance Care Directives Act and the Guardianship Act is concerned with decision-making concerning the treatment, welfare and protection of a protected person, and the protected person’s estate, for so long as the protected person remains unable to manage his or her own affairs by reason of mental incapacity. 25 It is not necessary for the purposes of this case to determine whether or to what extent the Supreme Court retains any original or supervisory jurisdiction over the matters addressed by these Acts. 26 It is clear that no advanced care directive can survive the death of the person who gave it.10 The orders concerning this aspect of the case do not appear to be of particular concern to the applicant. In the case of the guardianship and administration orders, there is little for a guardian or administrator to do following the death of the protected person. Obviously enough, there can be no issue about the care and welfare of Dr Maros following her death;11 no medical treatment or accommodation is required. As for her estate, a protected person’s remains and deceased estate following death are usually for the executor or administrator to manage.12 10 Advance Care Directives Act, s 16. 11 Cf Re XHQ [2018] SACAT 11, [65]-[67]. 12 For example, cremation or burial arrangements are addressed at common law and under statute, eg see Marschall v Elson [2023] SASCA 1; Marschall v Elson (No 2) [2023] SASCA 3; and, involving the same family, Maros v Luca [2024] SASC 98 (Bampton J), delivered 8 August 2024. That is, “through the prism of probate law and practice in the administration of a deceased estate”, New South Wales v Gill [2024] NSWSC 1263, [37] (Lindsay J). -- 6 of 8 -- [2024] SASCA 136 The Court 5 27 Section 41 of the Guardianship Act is noteworthy because it explicitly recognises the very limited residual power of an administrator following “the death of the protected person or the revocation of the administrator’s appointment”. Indeed, s 41(4) recognises that, upon death and “the grant of probate or letters of administration in respect of the protected person’s will or estate”, any authorisation conferred on an administrator by the Tribunal “is revoked”: 41—Power of administrator to continue to act after death etc of protected person (1) Notwithstanding the death of the protected person or the revocation of the administrator's appointment, an administrator may continue to exercise his or her powers under this Division until he or she is notified or becomes aware of the death or revocation. (2) Notwithstanding that an administrator has been notified or has become aware of the death of the protected person, he or she may pay the funeral expenses of the protected person out of the estate. (3) The Tribunal may, by notice in writing addressed to the administrator, authorise the exercise of powers by the administrator for a further period, not exceeding two months after the death of the protected person, subject to such limitations and conditions as the Tribunal may specify in the notice. (4) An authorisation under subsection (3) is revoked upon the grant of probate or letters of administration in respect of the protected person's will or estate. 28 The applicant has not identified any issue associated with the making of orders under the Advance Care Directives Act or the Guardianship Act which might warrant, still less authorise, the intervention of the Tribunal following the death of Dr Maros. For example, he has not pointed to any issue about anything done under those orders by her guardians or administrator before her death which might be agitated after her death, or which would be within the power of the Tribunal to address. 29 Rather, the applicant has consistently and only mounted a challenge to the making of orders under the Advance Care Directive Act and the Guardianship Act based on the contention that the Tribunal lacked jurisdiction to make any orders. 30 The Tribunal does not have a power to make declarations but, even if it did, it is doubtful whether it would be an appropriate exercise of that power to pronounce on the validity of orders where that pronouncement would appear to have no practical effect on the protected person or her estate.13 31 By the time of the directions given by the Deputy President on 9 July 2024, the protected person had died and there was no utility in granting leave to proceed 13 JN Taylor Holdings Ltd (In Liq) v Bond (1993) 59 SASR 432, 436 (King CJ, with whom Prior and Perry JJ agreed), where it was accepted that the declaration power should not be exercised where “the questions were purely abstract questions the answers to which were incapable of affecting any existing or future legal rights …”, citing Rediffusion (Hong Kong) Ltd v Attorney-General (Hong Kong) [1970] AC 1136 (PC), 1158. -- 7 of 8 -- [2024] SASCA 136 The Court 6 with the review. The Deputy President was therefore right to dismiss the application under s 48(1) of the SACAT Act. 32 In these circumstances, it is not necessary to address the Attorney’s submission that the Tribunal lacked jurisdiction to proceed with the review. The applicant is not legally represented, and it is preferable that an issue such as that be determined with the benefit of considered submissions from both sides of the debate. The application for leave to appeal to the Court of Appeal 33 Where the only issue concerns whether guardianship and administration orders could have been made in 2023, it is difficult indeed to see why it is in the interests of justice for this Court to grant leave to appeal following the death of the protected person.14 34 As important as the question of Federal diversity jurisdiction may be in this context, it is not for the Court of Appeal to undertake an advisory role, nor to determine hypothetical or purely academic questions.15 Even assuming the applicant wishes to press a claim in damages, that does not avoid the conclusion that he has failed to demonstrate that the interests of justice warrant a grant of leave to appeal. Conclusion 35 The applicant’s application for leave to appeal is dismissed. There will be an order for costs in favour of Ms Eckert fixed in the amount of $2,000. 14 Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1, 6 [19]-[20] (Parker J); Pix v South Australian Housing Trust (2016) 125 SASR 10; Henderson v South Australian Housing Trust [2024] SASCA 55; [40] (Lovell and Bleby JJA and Kimber AJA); Flowers v Hicks [2024] SASCA 126, [26] (Livesey P and Bleby JA). 15 See, for example, the approach of White J where the case will produce “no foreseeable consequences”, South Australia v Lampard-Trevorrow [2008] SASC 370, [20]-[21]. -- 8 of 8 --