Luca v Eckert (No 2)

[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;