FC v Public Advocate - [2025] SASC 110

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
FC v PUBLIC ADVOCATE & ANOR
[2025] SASC 110
Judgment of the Honourable Justice Stein
10 July 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
HEALTH LAW - GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY - GUARDIANSHIP AND SIMILAR APPOINTMENTS - REVIEW, REVOCATION, ETC
Application for leave to appeal a decision of the South Australian Civil and Administrative Tribunal (“SACAT”).
The mother of a person protected by full guardianship and administration orders since 4 August 2022 applied for leave to appeal an internal review decision of a Senior Member of SACAT. The internal review resulted in the decision at first instance being affirmed. The Senior Member also conducted a review pursuant to s 57 of the Guardianship and Administration Act 1993 (SA) concluding the full guardianship and administration orders should remain in place.
The grounds of appeal were that:
1.no weight was given to the protected person’s change in circumstances relating to a significant loss in eyesight;
2.not enough weight was given to the protected person’s wishes;
3.the Member at first instance based her decision on a conclusion that the applicant is controlling, which lacked supporting evidence, and was based on the applicant's presentation on the day of the hearing.
Held (dismissing the application for leave to appeal):
1.the requirement the appeal be instituted within 14 days is dispensed with as the applicant is self-represented and the application was out of time by only eight (8) days;
2.the applicant failed to demonstrate substantial injustice;
3.the Senior Member did not err in the exercise of discretion, in a way identified by the High Court in House v The King (1936) 55 CLR 499. The appeal grounds are not reasonably arguable, nor are they of sufficient substance to justify consideration by this Court.

Guardianship and Administration Act 1993 (SA) ss 3, 5, 29(4), 30, 33, 35(2), 36, 37, 50, 57, 64; South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71, referred to.
Jackson v Lepp Investments Pty Ltd [2016] SASC 62; Varricchio v Wentzel (2016) 125 SASR 191; Aldridge v Registrar of Firearms [2022] SASC 5, discussed.
House v The King (1936) 55 CLR 499; Pix v South Australian Housing Trust [2016] SASCFC 57; TGN v MCN [2023] SASCA 62, considered.

FC v PUBLIC ADVOCATE & ANOR
[2025] SASC 110
Appeal to a Single Judge

STEIN J: The applicant is the mother of a protected person who is the subject of guardianship and administration orders made by the South Australian Civil and Administrative Tribunal (“SACAT”). Orders were made by SACAT in 2019 appointing the Public Advocate as limited guardian for the protected person. A further order was made in 2021 and, on 4 August 2022, SACAT appointed the Public Trustee as full administrator of the protected person’s estate and the Public Advocate as full guardian of the protected person.
In September 2023, the applicant brought an application to revoke the guardianship and administration orders. At first instance, a SACAT member dismissed the application for revocation of the orders. The member then undertook a review pursuant to s 57 of the Guardianship and Administration Act 1993 (SA) (“GA Act”) and confirmed the appointment of the Public Advocate and the Public Trustee respectively as guardian and administrator of the protected person.
In May 2024, both the applicant and the protected person brought applications for internal review of SACAT’s decision.
By order made on 1 October 2024, the Senior Member affirmed the first instance decision. The Senior Member considered the evidence and submissions before SACAT at first instance and undertook a review pursuant to s 57 before confirming the appointment of the Public Advocate and the Public Trustee respectively as guardian and administrator of the protected person.
For the reasons that follow I have determined to refuse leave to appeal. This Court places significant weight on the findings of SACAT as a specialist Tribunal with particular expertise in guardianship and administration matters. The applicant failed to demonstrate that the appeal was reasonably arguable, that there was any vitiating error, substantial injustice or question of principle warranting consideration by this Court.
Relevant provisions of legislation
SACAT Act
Section 71 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (“SACAT Act”) provides for an appeal against a decision of SACAT, constituted by a member other than a presidential member, to the Supreme Court constituted of a single judge. An appeal under s 71 is only by leave of the Supreme Court.[1] An appeal must be instituted within one month.[2]
[1] South Australian Civil and Administrative Tribunal Act 2013 (SA), s 71(2).
[2] South Australian Civil and Administrative Tribunal Act 2013 (SA), s 71(3).
An appeal under s 71 is by way of re-hearing and, in conducting an appeal, the Supreme Court may draw inferences of fact from evidence or material before the Tribunal and may, as it thinks fit, allow further evidence or material to be presented to it.[3] Section 71(4) empowers the Court, on appeal, to affirm the decision, vary the decision or set aside the decision and, if it thinks fit, to return the matter to the Tribunal for re-consideration.
[3] South Australian Civil and Administrative Tribunal Act 2013 (SA), ss 71(3a)-(3b).
GA Act
The GA Act empowers SACAT to make guardianship and administration orders if it is satisfied the person the subject of the application has a mental incapacity and an order should be made.
The GA Act defines mental incapacity as the inability of a person to look after his or her, own health, safety or welfare, to manage his or her own affairs as a result of, among other matters, any illness, disorder, impairment or deterioration of the mind or brain.[4]
[4] Guardianship and Administration Act 1993 (SA), s 3 (definition of “mental incapacity”).
Section 5 of the GA Act sets out principles to be observed in exercising powers under the GA Act. These are as follows.
1.Consideration must be given to what would, in the opinion of the decision maker, be the person’s wishes if the person were not incapacitated but only so far as there is reasonably ascertainable evidence on which to base such opinion.
2.The present wishes of the protected person should be sought (unless it is not possible or reasonably practicable to do so) and consideration given to those wishes.
3.Consideration must be given in the case of making or affirming orders to the adequacy of existing formal arrangements for the person’s care or management of their financial affairs and the desirability of not disturbing those arrangements.
4.Any order must be least restrictive of the person’s rights and personal autonomy as is consistent with their proper care and protection.
The Public Advocate may be appointed as the guardian only if the Tribunal considers no other order would be appropriate.[5]
[5] Guardianship and Administration Act 1993 (SA), s 29(4).
Section 30 of the GA Act enables SACAT on application to vary or revoke a guardianship order. Such an application may be made by a person to whom the proceedings relate[6] or, subject to s 33(1a), a person responsible for the person or a person who satisfies SACAT they have a proper interest in the welfare of the person.[7] Section 33(1a) provides that an application may not be made by a person referred to in subs (1)(e) unless the person satisfies SACAT that the reason for the application is a change in the circumstances of the person to whom the guardianship order applies.
[6] Guardianship and Administration Act 1993 (SA), s 33(1)(a).
[7] Guardianship and Administration Act 1993 (SA), s 33(1)(e).
The GA Act provides for the appointment of the Public Trustee as administrator.[8] SACAT may on application vary or revoke an administration order.[9] Standing to apply to vary or revoke administration orders is limited in a similar way[10] to guardianship orders as described above.
[8] Guardianship and Administration Act 1993 (SA), s 35(2).
[9] Guardianship and Administration Act 1993 (SA), s 36.
[10] See Guardianship and Administration Act 1993 (SA), s 37.
The criteria for determining the suitability of a person to be appointed as guardian and administrator are set out in s 50 of the GA Act. The Tribunal must have regard to a number of matters, including:
·whether the protected person and the potential appointee would be incompatible;
·whether there is an existing family relationship that should be preserved or not disturbed;
·whether the potential appointee would be competent to discharge the functions and do so in accordance with the principles set out in the GA Act;
·whether the potential appointee would be readily available to discharge the function;
·whether any conflict of interest would arise;
·any other matters the Tribunal considers relevant.
Section 57 of the GA Act provides for review by SACAT of the circumstances of a protected person at intervals of not more than three years to ascertain whether the orders to which the person is subject are still appropriate. SACAT may conduct the review in such manner as it thinks fit. On completion of review, SACAT must revoke the orders unless satisfied there are proper grounds for the orders remaining in force.
Decision of the Member at first instance
As a result of the manner in which the application by the applicant was addressed at first instance and then on internal review, I commence with a summary of the decision of the Member at first instance.
The Member’s reasons state that the applicant had standing only to make the application to revoke the administration order if SACAT was satisfied there had been a change in the protected person’s circumstances. The change in circumstances relied upon by the applicant was that the protected person now had capacity to understand and manage his own finances with her informal support.
The Member addressed a report from an occupational therapist and a letter from a doctor at Modbury Hospital which suggested a previous diagnosis of intellectual disability had not been supported through formal assessments and the doctor’s impression was there was no significant intellectual disability. The Member observed that neither the occupational therapist nor the doctor had access to extensive assessments and reports relating to the protected person, including a neuropsychological assessment which concluded the protected person’s intellectual disability and reactive behaviours are enduring and necessitate formal supports. Accordingly, the Member placed limited weight on the opinions of the occupational therapist and doctor and preferred the comprehensive, earlier neuropsychological assessment. The Member was not satisfied that the applicant had established that the protected person was able to understand and manage his own finances and legal affairs. The Member concluded the applicant did not have standing to apply to revoke the administration order.
The Member then continued to review the administration order pursuant to s 57 of the GA Act. The Member was satisfied the protected person continues to have a mental incapacity and was not satisfied it was appropriate to revoke the administration order and permit the applicant to manage her son’s legal and financial affairs because the protected person is not able to understand and manage his own affairs and is vulnerable to influence. The Member had regard to the applicant’s objections to decisions made by the appointed guardian. The Member considered that if the guardianship order remained unchanged, the applicant was permitted to act as informal manager and she objected to decisions made, she would be able to thwart the guardian’s decisions by withholding funds contrary to the protected person’s best interests. The Member referred to having reservations about, or requiring further information to understand, decisions made by the Public Trustee, including to use funds to purchase a screen door to ensure security for staff working with the protected person and decisions concerning a mobile telephone. However, no alternative for the appointment of an administrator had been suggested to the Tribunal. The Member was satisfied there were proper grounds for the administration order to remain in force.
The Member then addressed the challenge to the guardianship order. The applicant, at the hearing, indicated to the Member that she sought to revoke that order on the basis of the protected person’s capacity to understand and manage his own affairs. The Member referred to the applicant’s concerns about decisions made by the Public Advocate including asserted failures of service providers to provide appropriate care. The Member concluded the applicant had not established a change in circumstances such that she had standing.
On reviewing the guardianship order under s 57 of the GA Act, the Member was satisfied the protected person continues to have a mental incapacity and that a full guardianship order is required. The Member considered the occupational therapist’s recommendation to have lacked the benefit of a range of assessments, including, most importantly, the neuropsychological assessment. The Member recorded the main thrust of the applicant’s complaint being that, as the protected person’s mother, she should have access to all information, appoint support workers, and make service, health and lifestyle decisions. The applicant expressed frustration that the Public Advocate did not consult with her nor act on her direction when making such decisions. The Member’s reasons state that during the hearing the applicant said that when decisions are made by the guardian with which she disagrees, she will tell her son to refuse to cooperate and this course of action has resulted in the protected person being left without support. The Member considered the applicant lacked insight into a number of matters, including: the effect of her decisions to thwart the guardian and undermine the protected person’s relationship with support providers, the potential for those decisions to cause him harm, and that her conduct had placed the protected person at risk of harm.
The Member was satisfied that the protected person continued to require an independent guardian who can make decisions solely in his interests and to mitigate the risks to him given his pronounced vulnerability and the manner in which the applicant had acted to further her interest as a mother with a right to be the decisionmaker, rather than ensuring decisions are made to promote the wellbeing and welfare of her son.
Hearing before the Senior Member reviewing the first instance decision
The applicant and the protected person applied for internal review of SACAT’s decision. Thereafter, in June 2024, Dr Field assessed the protected person and concluded the protected person had a mental incapacity.
On the internal review, the Senior Member permitted new evidence to be tendered including the report of Dr Field, discharge summaries in relation to the protected person and reports of the Public Advocate and Public Trustee.
The transcript of the hearing before the Senior Member indicates that, at the hearing of the application for internal review, the applicant made submissions to the effect that she accepted the protected person had a mental incapacity, but she did not support guardianship and administration orders because she was capable of taking those roles. She submitted she could support her son informally to make decisions.
The applicant made submissions to the Senior Member about a range of issues. Complaints made by the applicant included grievances about the suitability of care providers, failures of the guardian to listen to the protected person’s wishes, allegations about care failures leading to the loss of eyesight, frustrations with delays in the Public Trustee making decisions and the decisions made such for approval of funds for a phone for the protected person, and complaints about the kind of phone provided. The applicant contended that the Member at first instance did not consider her concerns about the decisions of the Public Advocate as guardian and if the guardianship order remained, the protected person’s health and wellbeing would deteriorate including in relation to his eyesight. The applicant’s position was that her son would not have lost his eyesight if she had been his appointed guardian.
The protected person’s counsel submitted that there was a change of circumstances on the basis that the protected person had become permanently blind in one eye. That was said to have come about when the protected person missed his ophthalmology appointment after support workers retreated and did not return following an incident at the protected person’s house. When the protected person eventually received his follow up appointment, he had suffered complete retinal detachment. Counsel submitted that as the vision in his other eye was diminished, the retinal detachment resulted in a change to the protected person’s care needs and an adverse impact on his quality of life. Submissions were put to the Senior Member about issues experienced by the protected person with emotional regulation and, in light of his propensity to become heightened when faced with challenges, the need for a guardian to act quickly and make decisions to ameliorate the impacts of some of his self-soothing behaviours, including slapping and banging his head. Counsel submitted that an inference could be drawn that the retinal detachment could be attributed to a matter such as the protected person’s head banging or face slapping and decisions to regulate the protected person would need to happen quickly to de-escalate him and avoid the threat of something as catastrophic as retinal damage.
During the hearing, the delegated guardian gave evidence which addressed a range of topics including the protected person’s eyesight. Among other matters, the delegated guardian referred to ophthalmology department advice of a risk of retinal detachment as a consequence of which the Public Advocate was eager to obtain the assistance of a behavioural support practitioner to try to address behavioural challenges.
An officer of the Public Trustee also gave evidence including about the allocation of funds for different items in light of the funds available for the protected person.
Decision of the Senior Member reviewing the first instance decision
After setting out the legislative framework, the Senior Member summarised the decision at first instance, the evidence and the submissions of the parties. The Senior Member then turned to address the findings made at first instance. The Senior Member agreed with the findings that the applicant did not have standing to bring the applications to revoke the administration order and vary the guardianship on the grounds that she had submitted the protected person had capacity. The Senior Member considered the finding the protected person continued to have a mental incapacity was well supported by the medical evidence. On review, the Senior Member took into account Dr Field’s report which concluded, among other things, the presence of a significant intellectual disability; that the protected person was extremely lacking in insight and has very poor understanding of monetary and numerical concepts and that the protected person is highly suggestible and at extreme risk of financial abuse. In his report, Dr Field recommended against modifying the orders.

The Senior Member concluded the first instance Member was correct in finding there had not been a change in circumstances as to the protected person’s capacity to make decisions and further to conclude on those grounds that the applicant lacked standing to apply to vary and revoke the orders.
Under the heading “Automatic review of orders pursuant to section 57 of the G & A Act”, the Senior Member stated agreement with the findings that the protected person continues to have a mental incapacity based on overwhelming evidence in the reports of Dr Barsdell and Dr Field. The Senior Member stated that while the grounds of review concerning mental incapacity were amended, it was evident at the hearing that the protected person and the applicant lacked insight into the protected person’s condition and its impact on his ability to make reasoned decisions.
The Senior Member also agreed with the conclusion there were proper grounds for the administration and guardianship orders to remain in place and for a full administration order to remain in place. The Senior Member considered the Public Advocate’s updated report supported the need for a full ongoing guardianship order. The Senior Member referred to various decisions which were required, including in relation to secondary service providers, accommodation and regular medical reviews by the protected person’s general practitioner and ophthalmologist and to submissions by the Public Advocate that the ability to make decisions as guardian had been hindered by the applicant. The Senior Member considered the evidence before the Member at first instance and on internal review confirmed that the protected person is highly susceptible to influence and has significant impairment managing his financial affairs. The Senior Member agreed with the Member that it would not be appropriate to revoke the orders and revert to an informal arrangement where the applicant assists the protected person in making decisions.
The Senior Member accepted the protected person’s submissions that the Public Advocate may only be appointed if there is no other appropriate person to appoint and acknowledged it was the strong wish of the protected person that the Public Advocate not be appointed. The Senior Member was mindful of the submissions that an order appointing the Public Trustee would cause the protected person significant distress and also noted concerns that the Public Trustee was not making decisions in line with the protected person’s wishes.
The Senior Member continued to state that the Member at first instance was not satisfied the applicant was a suitable guardian because of a lack of insight, the volatile nature of the relationship between the applicant and the protected person and the conflict between the applicant and service providers. There were concerns the applicant would not be able to carry out her role in line with the requirements of the GA Act, particularly with consideration to the protected person’s proper care and protection.
The Senior Member was persuaded by the Public Advocate’s submissions, accepting the submissions that the applicant is not the most appropriate person and the only appropriate appointee is the Public Advocate. The Senior Member stated that the relationship between the applicant and the protected person is volatile which will preclude the applicant from making decisions in accordance with the principles of the GA Act and she lacks insight into the protected person’s condition and how this impacts decisions that need to be made for him.
The Senior Member found the history of dealings between the applicant and support services establishes that the applicant is not competent to make decisions about those service providers that are consistent with the protected person’s proper care and protection. The Senior Member was also satisfied the correct and preferable decision was to confirm the appointment of the Public Trustee as administrator, concluding that informal arrangements were not appropriate. The Senior Member was not satisfied that the applicant is an appropriate person to appoint as administrator, noting that the applicant, lacks insight into her son’s condition, has displayed significant influence over her son and has a precarious relationship with the protected person involving physical and verbal aggression. Any withholding of funds by the applicant would further deteriorate their relationship. The protected person is highly susceptible to influence and is financially very vulnerable. The Senior Member considered it apparent from oral evidence that the applicant was incapable of working with the Public Advocate as guardian.
The Senior Member considered the findings made at first instance to be supported by the evidence. The evidence tendered on the internal review further supported those conclusions. The Senior Member was therefore satisfied the original order was the correct and preferable decision and ought to be affirmed.
The Senior Member acknowledged that the decision would be disappointing to the protected person and the applicant, and that the orders were a serious incursion on the protected person’s autonomy and rights to make decisions, which he has not possessed since 2019. The Senior Member considered there was sufficient evidence to establish the necessity of the orders made by SACAT and it was important the protected person was aware the guardian and administrator are bound by the GA Act and that the Public Advocate had undertaken a willingness to work with the applicant and the protected person in making decisions.
Grounds of appeal
The grounds of appeal are that:
1.no weight was given to the protected person’s circumstances having changed;
2.the Member did not give enough weight to the protected person’s wishes;
3.the Member based her decision on a conclusion that the applicant is controlling, which lacked supporting evidence, and was based on the applicant’s presentation on the day of the hearing.
Relevant principles
Extension of time
The notice of appeal was filed 22 days after the decision was provided to the parties which exceeds the 14-day period set out in s 64(h) of the GA Act. The Court has the power to dispense with the requirement that the appeal be instituted within 14 days.
Leave to appeal
The applicant requires the Court’s leave to appeal the decision of the Tribunal.
The overriding principle governing an application for leave to appeal from SACAT to this Court is the interests of justice. The ordinary approach is that leave will only be granted where an appeal is reasonably arguable and the subject matter is of sufficient substance to justify consideration.[11] Leave to appeal from SACAT is not readily granted.[12]
[11] Pix v South Australian Housing Trust [2016] SASCFC 57 at [3] (Kourakis CJ, Bampton and Doyle JJ agreeing) quoting Jackson v Lepp Investments Pty Ltd [2016] SASC 62 at [19]; Aldridge v Registrar of Firearms [2022] SASC 5 at [29]-[30].
[12] Varricchio v Wentzel (2016) 125 SASR 191 at [37]; Aldridge v Registrar of Firearms [2022] SASC 5 at [30].
This Court gives substantial weight to the findings of SACAT which is a specialist Tribunal with particular expertise in addressing guardianship matters.[13] The requirement for leave to appeal is intended to screen out cases where there is no issue of principle for determination, or where the disputed question has little or no practical or legal significance and there is no potential miscarriage of justice.[14]
[13] Pix v South Australian Housing Trust [2016] SASCFC 57 at [3] (Kourakis CJ, Bampton and Doyle JJ agreeing).
[14] Aldridge v Registrar of Firearms [2022] SASC 5 at [33].
The Court will not readily grant leave to appeal in cases where doing so would undermine the legislative intention of the GA Act and the SACAT Act that guardianship and administration matters be dealt with by a specialist Tribunal better equipped to deal with such disputes in a cost-effective and timely way.[15]
[15] Varricchio v Wentzel (2016) 125 SASR 191 at [37].
Nature of the appeal
The role of this Court on an appeal is to determine whether the Senior Member erred in the exercise of discretion in accordance with the principles in House v The King.[16] It is therefore necessary for the Court to determine whether the decision was attended by a process error or an outcome error of the nature described in House v The King.[17] If the Senior Member acted on the wrong principle, mistook the facts, took into account irrelevant matters, or failed to take into account relevant matters, error will be established. However, the question of weight assigned to relevant considerations is not an appellable error. The Court cannot substitute its evaluation of the relevant considerations for those of the Senior Member unless, taking into account SACAT’s specialist knowledge and experience, this Court finds the order is manifestly unreasonable.[18]
[16] House v The King (1936) 55 CLR 499.
[17] House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ).
[18] Pix v South Australian Housing Trust [2016] SASCFC 57 at [6] (Kourakis CJ, Bampton and Doyle JJ agreeing).
Change of circumstances
The protected person’s submissions asserted a failure by SACAT to properly address the question of change of circumstances in light of the decision in TGN v MCN (“TGN”).[19]
[19] TGN v MCN [2023] SASCA 62.
In TGN, Dalton AJA, with whom Doyle and Bleby JJA agreed, observed that the bare decision of a statutory guardian may not amount to circumstances, but the term “circumstances” in s 33(1a)(a) of the GA Act can include the effect on the protected person of decisions made by the guardian.[20] There is no rule to be derived from the GA Act or from cases that SACAT cannot assess whether or not the Public Advocate has proved to be a suitable guardian or has acted properly in the interest of the protected person when an application for variation or revocation is made.[21] Her Honour continued to state that the term “circumstances” is of wide import. In the particular statutory context, circumstances include any circumstances related to the person’s health, safety and welfare, extending to any circumstance of the protected person of a type that would have been relevant in undertaking a consideration of whether to appoint a guardian.[22] The section does not provide that the application may not be made unless the applicant satisfies SACAT there has been a change of circumstances. SACAT must satisfy itself that, as a matter of substance, the reason for the applicant making the application is that there has been a change in the circumstances of the protected person. Whether that is proved is a different matter.[23]
[20]   TGN v MCN [2023] SASCA 62 at [23] (Dalton AJA, Doyle and Bleby JJA agreeing).
[21]   TGN v MCN [2023] SASCA 62 at [26] (Dalton AJA, Doyle and Bleby JJA agreeing).
[22]   TGN v MCN [2023] SASCA 62 at [34] (Dalton AJA, Doyle and Bleby JJA agreeing).
[23]   TGN v MCN [2023] SASCA 62 at [41]-[42] (Dalton AJA, Doyle and Bleby JJA agreeing).
Applicant’s submissions
In her submissions, the applicant referred to a failure by the guardian to heed concerns regarding the deterioration of the protected person’s mental health and eyesight, which was asserted to be a consequence of the guardian not taking the protected person to a doctor’s appointment. The applicant contended this resulted in the protected person becoming blind in one eye.
Submissions of the protected person
The protected person was joined as an interested party to the appeal. He was separately represented during, and supported, his mother’s applications before SACAT.
No party submitted that the Court must or should appoint a litigation guardian for the purposes of the application for leave to appeal and the appeal. I concluded the appointment of a litigation guardian was not necessary given the limited nature of the protected person’s involvement in the appeal and in circumstances in which there was no suggestion the protected person was unable to understand the nature and consequences of the decisions required of him for the appeal. It is likely that the making of such an order would have resulted in the need for further adjournments and complexities in the conduct of the matter which I did not consider were warranted in the particular context.
The protected person supported the application for leave, submitting that the orders the subject of the appeal are serious in nature as they relate to the liberty, autonomy and protection of the protected person. The protected person contended there is an arguable question of law as to whether the SACAT on internal review, by adopting the finding of the Member at first instance, properly construed the change of circumstances for the applicant to bring an application to vary or revoke.
The protected person accepted that mental incapacity was not an issue and he does not oppose the orders being in place. The protected person wishes his mother to be appointed as his guardian and administrator and prefers her to the Public Advocate and Public Trustee. He does not agree that his mother is controlling and considers his relationship with her to be better than the relationships he has with the Public Trustee and Public Advocate. The protected person acknowledged that when his needs are not met and decisions are not made quickly, his behaviour can escalate and that this has been a problem.
Counsel for the protected person contended that the Senior Member’s agreement with the Member at first instance in finding there had not been a change of circumstances and that standing was appropriately refused, had the consequence of wrongly confining the question to the mental incapacity issue. While the Senior Member referred to the concerns about decisions made by the Public Advocate and the failure of service providers, counsel contended the Senior Member did not appear to have addressed those concerns.
The protected person submitted that the Senior Member reached the decision there had not been a change in circumstances on the evidence of Dr Field and Dr Barsdell, but did not appear to consider the impact of decisions by the Public Advocate and the Public Trustee on the protected person as circumstances relevant to standing. Counsel contended that it appeared the Member and Senior Member apprehended that SACAT had to determine there was in fact a change of circumstances, rather than determining whether there was a change of circumstances within the meaning of TGN. Further, the protected person’s position was that the extent of what was considered as circumstances by the Member and Senior Member did not reflect TGN. Counsel pointed to the delay in decisions about, and the provision of, ophthalmology appointments, a lack of support workers and conflicts with support workers and decision makers as constituting a change of circumstances together with the serious impairment of his client’s vision. However, the protected person acknowledged that in this case SACAT performed a s 57 review, constituting a separate statutory review of the orders, which constituted a point of distinction with TGN.
Counsel contended that if the Senior Member had considered the impact on the protected person of the decisions made, more weight may have been placed on the applicant’s concerns about her son’s welfare. Counsel submitted that to the extent these matters were considered, they were given minimal consideration and only addressed in the context of the s 57 review. However, counsel accepted the question of suitability of the appointment of the applicant remained part of the necessary factors for consideration.
Submissions of the respondent
The Public Advocate opposed the Court giving leave to appeal.
The Public Advocate rejected any suggestion of neglect. Counsel submitted that it was necessary to maintain the clear distinction between decisions of a guardian and decisions of a carer.
The Public Advocate accepted that matters concerning the protected person’s eyesight are relevant to the extent they require decisions to manage the condition appropriately. The Public Advocate’s position was that there was no failure by the Senior Member to consider relevant matters. The potential causes and consequences of the eyesight issues were taken into consideration by the Senior Member, as were submissions about the applicant’s availability to make decisions and act responsibly, including in relation to the protected person’s behaviours and arrangements for the protected person to attend appointments. Counsel contended that issues with support workers would continue to occur and the applicant would not be capable of engaging support workers herself.
The Public Advocate submitted that the Senior Member found ongoing decisions needed to be made and considered the appropriateness of the applicant as a potential appointee in light of the decisions which needed to be made and the relevant considerations under the GA Act.
The Public Advocate accepted that TGN is a relevant authority, but contended it is not relevant to the particular circumstances. The decision of the Senior Member did not turn on whether the applicant had standing to apply to SACAT. A fulsome review under s 57 of the GA Act was conducted of all of the circumstances of the protected person considering all of the evidence and submissions. The Member at first instance initiated a s 57 review, finding the orders remained appropriate. On internal review, the Senior Member on review undertook an assessment of all of the evidence and submissions including that before the Member at first instance. While agreeing that the Member was correct in finding there had not been a change in circumstances and therefore the applicant lacked standing, nevertheless the Senior Member continued to review the decision of SACAT under s 57. Counsel for the Public Advocate contended that the Senior Member’s reference to the correctness of the Member’s decision in relation to standing did not confine the Senior Member’s decision only to the question of capacity but rather referred to the manner in which the Member at first instance addressed the issue of a change of circumstances. The making of the orders thus did not turn on the question of whether the applicant had standing. Accordingly, even if there were an error at first instance in the finding that the applicant lacked standing, this was immediately remedied by the review under s 57 and has no material impact on the outcome or the appeal grounds. The Public Advocate maintained that all of the matters raised in relation to a change of circumstances were adequately addressed during the s 57 review.
The Public Trustee adopted the submissions of the Public Advocate.
Consideration
Dispensation pursuant to s 64(h) of the GA Act
Although the applicant’s appeal was lodged late, it was only late by about a week. In circumstances in which the applicant is self-represented, I dispense with the requirement that the appeal be instituted within 14 days.
Application for leave to appeal
I have determined that the application for leave to appeal should be refused on the basis that the applicant has failed to demonstrate substantial injustice, that the appeal is reasonably arguable, and that the subject matter is of sufficient substance to justify consideration. It follows from my conclusion that I would have dismissed the appeal even if I had concluded leave to appeal should be granted.
The applicant did not demonstrate that the Senior Member mistook the facts, failed to take into account relevant matters or took into account any irrelevant matters.
In reaching this conclusion I have taken into account the protected person’s submissions based on TGN which I address below.[24]
[24] TGN v MCN [2023] SASCA 62.
Ground 1 of the appeal grounds
The first ground of appeal is that the Senior Member failed to give any weight to a change of circumstances of the protected person.

I commence by addressing the submissions based on TGN.
In TGN, the SACAT heard and determined separately the question whether the applicant had satisfied SACAT the reason for the application was a change in the circumstances of the person to whom the guardianship order applied. The Member’s statement in this case that the applicant had not established a change in circumstances such that she had standing does not strictly reflect the statement in TGN that SACAT must satisfy itself that, as a matter of substance, the reason for the applicant making the application is that there has been a change in the circumstances of the protected person. However, the statement must be read in the context of the reasons as a whole. Importantly, the Member concluded the asserted change of circumstances based on capacity was not proved. As set out above, in TGN, Dalton AJA recognised that whether a change was in fact proved was a different matter.[25] Similarly, the Senior Member’s conclusion to the effect that the Member was correct in finding there had not been a change in circumstances due to capacity and concluding that the applicant lacked standing must be read in light of the manner in which the application was conducted before the Member and the Member’s conclusion that the requisite change in circumstances was not in fact proved.
[25] TGN v MCN [2023] SASCA 62 at [41]-[42] (Dalton AJA, Doyle and Bleby JJA agreeing).
Further, having concluded that a change in circumstances was not established, both at first instance and on internal review the Member and the Senior Member proceeded to engage in the s 57 process, ultimately concluding there are proper grounds for the orders to remain in place. It follows that, to the extent any criticism can be levelled at the manner in which the standing issue was articulated, it did not impact upon the conclusion reached and the orders made either at first instance, or on review.
The same conclusion follows in relation to the contention that the Senior Member’s assessment was based exclusively, or primarily, on the question of incapacity rather than on the issues raised on the internal review including in relation to the protected person’s eyesight.
The Senior Member’s agreement with the Member’s decision concerning mental incapacity reflects the fact the applicant asserted a change in circumstances based on capacity issues before the Member. Having acknowledged agreement with the Member’s decision in that regard, the Senior Member’s decision was not so confined. TGN demonstrates that, if made out, deterioration in the protected person’s health due to poor decision-making could constitute a change of circumstances within the meaning of the GA Act.[26] While it would have been preferable for the Senior Member to expressly address the additional matters relied on as a change of circumstances separately from consideration of the issues informing the s 57 review, the Senior Member’s reasons must be read in light of the manner in which the parties conducted the internal review. This included that the hearing focussed on whether the arrangements proposed by the applicant were better suited to the protected person’s circumstances and whether the applicant was a suitable appointee in light of the considerations in s 50 of the GA Act. The Senior Member referred to the amendment of the grounds of appeal, thus acknowledging the greater scope of the issues on the internal review. The Senior Member agreed that ongoing decisions needed to be made about the protected person’s health and the Public Advocate’s report supported the need for an ongoing full guardianship order. The Senior Member was persuaded by the Public Advocate’s submissions, accepting that the applicant was not the most appropriate person to appoint and that the only appropriate appointee was the Public Advocate. The Senior Member considered the role of the guardian and administrator and the appropriateness of the applicant as a potential appointee in the light of the kinds of decisions that need to be made and the considerations set out in s 50 of the GA Act. In reaching satisfaction that the correct and preferable decision was to confirm the appointment of the Public Advocate as guardian and the Public Trustee as administrator, the Senior Member concluded the applicant was not an appropriate person to appoint as either guardian or administrator. This conclusion was reached with regard to the applicant’s lack of insight with associated consequences, conflict with service providers, the volatile relationship with her son, her influence over her son and difficulties in working with the Public Advocate.
[26] TGN v MCN [2023] SASCA 62 at [26] (Dalton AJA, Doyle and Bleby JJA agreeing).
Any finding relating to an asserted change of circumstances did not impact upon the Senior Member’s conclusions flowing out of the s 57 process, which concerned the applicant’s suitability and an affirmation that the orders as made in 2024 are still required.
I also observe that the weight to be placed on each consideration relating to the asserted change in circumstances was a matter for SACAT as a specialist Tribunal and not a matter that gives rise to appellable error.
It follows that the applicant has failed to establish any arguable basis for the first ground of appeal.
Ground 2 of the appeal grounds
The second ground of appeal is that the Senior Member gave insufficient weight to the protected person’s wishes.
During the hearing before the Senior Member, the protected person was given the opportunity to express his wishes and the Senior Member received submissions about his wishes. The Senior Member took into account the protected person’s wishes, weighing them against other relevant considerations which SACAT was obliged to consider. The Senior Member expressly referred to the protected person’s wishes and acknowledged the decision would be disappointing to him.
As set out above, a complaint about weight given to relevant considerations placed upon those considerations by a Tribunal with specialist knowledge does not amount to appellable error.
The applicant has failed to establish any arguable basis for the second appeal ground.
Ground 3 of the appeal grounds
The third ground of appeal is that there was no evidence to support the conclusion the applicant is controlling and that conclusion was based on the applicant’s appearance before the Tribunal.
The applicant’s submissions did not attack the relevance of an appointee’s behaviour per se but rather the characterisation of her own behaviour and the asserted lack of evidence to support it. The Public Advocate submitted that there was extensive documentary evidence before the Tribunal to support this characterisation of the applicant.[27] I have reviewed that evidence.
[27] SACAT book of documents; respondent’s appeal book at pp 600, 665, 677.
The manner in which the applicant behaves towards the protected person, the appointed guardian and the appointed administrator has relevance to the question of whether the applicant is a suitable appointee.
Dr Field considered the protected person highly suggestible and at extreme risk of financial abuse. The Senior Member stated that it was apparent at the hearing that the applicant appeared to exercise significant influence and control over her son. However, it is clear from a reading of the reasons that the Senior Member’s conclusion was not based solely on observations made at the hearing. The Senior Member referred to a number of other matters, including, the nature of the relationship between the applicant and the protected person, dealings between the applicant and support services, the submission that the applicant had told the protected person not to work with certain support services, and submissions from the Public Trustee addressing concerns observed by the administrator of displays of coercive behaviour by the applicant.
I am not satisfied that the applicant has identified an irrelevant matter which was taken into account, a failure to consider a relevant matter, nor any other appellable error in relation to ground 3.
Conclusion and orders
I dispense with the requirement to institute the appeal within 14 days. I refuse leave to appeal. The application for leave to appeal is dismissed.