KGS v GMS - [2024] SASCA 85

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
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.
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.

KGS v GMS
[2024] SASCA 85
Court of Appeal – Civil
LIVESEY A/CJ (ex tempore):
Introduction

This is an application for leave to appeal…

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.

Continue reading KGS v GMS

Details

AGLC: KGS v GMS [2024] SASCA 85
Case: [2024] SASCA 85
Decision Date: 19 July 2024

CaseChat Overview and Summary

The applicant, KGS, sought to appeal a decision to the South Australian Civil and Administrative Tribunal (SACAT). The respondent was GMS. The core of the dispute revolved around KGS's failure to comply with the Tribunal's Rules of Court in its Notice of Appeal.

The primary legal issue before the court was whether SACAT had the power to strike out KGS's Notice of Appeal due to fundamental non-compliance with the Uniform Civil Rules 2020 (SA), particularly after KGS had been afforded an opportunity to rectify the defects.

Acting Livesey Ex Tempore CJ determined that a fundamental failure to comply with the Rules of Court had occurred. The court found that KGS had been given an opportunity to remedy the defective Notice of Appeal but had not done so. Consequently, the court exercised its power under r 212.5(2)(b) of the Uniform Civil Rules 2020 (SA) to strike out the Notice of Appeal.

The Notice of Appeal dated 16 June 2024 was accordingly struck out.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.Conclusion The Notice of Appeal dated 16 June 2024 is struck out.

Ratio Decidendi

Legal Principle Established

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