K, A v Public Trustee - [2020] SASCFC 104

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
K, A v PUBLIC TRUSTEE
[2020] SASCFC 104
Judgment of The Full Court
(The Honourable Justice Stanley, The Honourable Justice Parker and The Honourable Justice Doyle)
2 November 2020
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - GENERALLY
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS
This is an application for permission to appeal to the Full Court. The applicant seeks to appeal from a decision of Bochner AJ who dismissed an application to appeal from a decision of the President of the South Australian Civil and Administrative Tribunal (the Tribunal). The applicant seeks to appeal against the orders of the President confirming the decision of the Tribunal to appoint the Public Advocate as guardian with special powers and the Public Trustee as full administrator over the applicant’s mother, owing to the intractable conflict that exists between the siblings.
Held:
1. There is no reason to doubt the judge’s conclusion that it was not reasonably arguable that the President’s finding was in error. The application is dismissed.
Guardianship and Administration Act 1993 (SA); South Australian Civil and Administrative Tribunal Act 2013 (SA) s 5, s 71, referred to.
Jackson v Lepp Investments Pty Ltd [2016] SASC 62, applied.
K, A v Public Trustee [2020] SASC 125, discussed.

K, A v PUBLIC TRUSTEE
[2020] SASCFC 104
Civil: Permission to Appeal in Private
Full Court: Stanley, Parker and Doyle JJ

THE COURT: This is an application for permission to appeal to the Full Court. The applicant seeks to appeal from a decision of Bochner AJ who dismissed an application to appeal from a decision of the President of the South Australian Civil and Administrative Tribunal (the Tribunal) on the grounds that the appeal was not reasonably arguable and was out of time.
This application for permission to appeal is also out of time.
The background to the application is that, until 1 February 2017, KA and his brother were substitute decisionmakers by way of an advance care directive for their mother. On 1 February 2017 the Tribunal revoked the advance care directive on the application of the Public Advocate. Subsequently, the Tribunal made a longer term order appointing the Public Advocate as full guardian of the mother.
In January 2018 the mother’s daughter made an application to the Tribunal for the appointment of an administrator to administer the mother’s estate. The application was heard at the same time as a review of the guardianship order. On 15 February 2018 the Tribunal confirmed the full guardianship order and made a full administration order appointing the Public Trustee as the administrator of the whole of the mother’s estate. On 19 July 2018 the Tribunal made an order conferring special powers on the Public Advocate, as the mother’s guardian, which included a power authorising it to direct where the mother resides.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] SASCFC 104
Decision Date: 2 November 2020

CaseChat Overview and Summary

The appeal concerned an application for leave to appeal to the Full Court of the Supreme Court of South Australia from a decision of a single judge of that Court. The parties involved were K, A (the applicant) and the Public Trustee (the respondent). The dispute arose from an administrative decision made by the Public Trustee, which the applicant sought to challenge.

The central legal issue before the Full Court was whether leave to appeal should be granted. This required the Court to consider the principles governing appeals from a single judge of the Supreme Court to the Full Court, particularly in the context of administrative law and statutory appeals from administrative authorities. The Court had to determine if there was a sufficient basis to interfere with the single judge's decision.

The Full Court applied the well-established principles for granting leave to appeal, which generally require demonstrating that the appeal has a real prospect of success or that there is some other good reason for the appeal to be heard. The Court considered the merits of the proposed appeal, assessing whether the single judge had erred in law or fact in their determination of the administrative law matter. The Court noted that leave to appeal is not granted as a matter of course and requires a compelling argument.

The Court ultimately dismissed the application for leave to appeal, finding that the applicant had not demonstrated a real prospect of success nor any other good reason to grant leave.

Orders