Luca v Eckert (No 2)

Case [2024] SASCA 136


SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

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.

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;

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AGLC
Luca v Eckert (No 2) [2024] SASCA 136
Case
[2024] SASCA 136
Decision Date

CaseChat Overview and Summary

The applicant, Luca, sought leave to appeal from a decision of the South Australian Civil and Administrative Tribunal (SACAT) concerning guardianship and the administration of property for persons with impaired capacity. The respondent was Ms Eckert.

The Court of Appeal was required to determine whether the interests of justice warranted granting leave to appeal. This involved considering whether the appeal raised a question of law or mixed law and fact that was not merely hypothetical or academic, and whether the appeal would have foreseeable consequences.

The Court of Appeal held that it was not appropriate for them to act in an advisory capacity or to determine purely academic questions. Even if the applicant intended to pursue a claim for damages, this did not overcome the failure to demonstrate that the interests of justice supported a grant of leave to appeal. The Court referred to the principle that appeals should not be granted where they will produce no foreseeable consequences.

The application for leave to appeal was dismissed, and costs were awarded to Ms Eckert in the amount of $2,000.

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 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. [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].Conclusion 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.

Ratio Decidendi

Legal Principle Established

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