Luca v Maros
[2025] SASCA 76
•4 July 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
LUCA v MAROS & ORS
[2025] SASCA 76
Decision of the Honourable Acting Chief Justice Livesey (ex tempore)
4 July 2025
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - HEARING - NATURE OF HEARING - REFUSAL OF ADJOURNMENT
This is an urgent interlocutory application by the applicant, Mr Luca, seeking a stay pending the determination of an application for leave to appeal before the Court of Appeal.
The appeal concerns two decisions made by an Auxiliary Justice in the course of her determination of an appeal against a decision by an Associate Justice who appointed a litigation guardian for the applicant, Mr Maros, in the primary proceeding. Mr Maros is the father of Mr Luca.
The Auxiliary Justice refused Mr Luca’s application that she recuse herself from hearing the appeal and, in addition, she refused to stay the orders made by the Associate Justice pending her hearing of the appeal.
The application is brought on urgently because the appeal will be heard next week, on 10 July 2025.
Held, refusing the stay application with costs:
1.The appeal grounds filed in this Court do not suggest any obvious error in the approach of the Auxiliary Justice, still less obvious error in her refusal to recuse herself or her refusal to grant a stay.
2.It is difficult to confidently conclude that the proposed appeal is reasonably arguable or that leave to appeal should be granted. Indeed, it is doubtful whether it is a bona fide appeal with some prospect of success.
3.Even if that were not so, the only detriment associated with continuing with an appeal hearing next week is the risk that the appellant will have to engage with an appeal which, on his case, should never have been heard. He is not legally represented and there is no evidence of any financial or other prejudice.
Franklin v South Australian Housing Authority [2024] SASCA 3; Marschall v Elson (No 2) [2023] SASCA 3, applied.
Georganas v Georganas [2024] SASCA 1; Hackney Tavern Nominees Pty Ltd v McLeod (1983) 33 SASR 590; Hanna v Flinders University [2025] SASC 6; Lesses v Maras (No 2) [2016] SASC 140; Luca v Eckert (No 2) [2024] SASCA 136; Playford Vineyard Pty Ltd v Wishford Nominees Pty Ltd (No 2) [2018] SASC 152, considered.
LUCA v MAROS & ORS
[2025] SASCA 76
Court of Appeal – Civil – Stay application
LIVESEY ACJ (ex tempore):
Introduction
This is an urgent interlocutory application by the applicant, Mr Luca, seeking a stay pending the determination of an application for leave to appeal before the Court of Appeal.
The application was supported by Ms Greig, the third respondent.
The appeal concerns two decisions made by an Auxiliary Justice in the course of her determination of an appeal against a decision by an Associate Justice appointing a litigation guardian for the applicant, Mr Maros, in the primary proceeding. Mr Maros is the father of Mr Luca. The Auxiliary Justice refused Mr Luca’s application that she recuse herself from hearing the appeal and, in addition, she refused to stay the orders made by the Associate Justice.
The appeal from the Associate Justice is set to be heard by the Auxiliary Justice next week, on 10 July 2025. Accordingly, in addition to a stay, the applicant asks that the appeal be adjourned until the determination of the appeal in this Court.
For the following reasons, I refuse to order a stay.
The primary proceeding
By an originating application commenced on 28 August 2024, Mr Maros has asked that the Supreme Court pronounce for the force and validity of the last will and testament of his deceased wife, Kathleen Anne Maros, being the documents bearing the date 13 August 1998 and 20 March 2020. In addition, Mr Maros seeks a grant of probate in solemn form in his capacity as the sole executor named in his deceased wife’s will.[1]
[1] By contrast, Mr Maros has asked that the Supreme Court pronounce against the force and validity of another document dated 10 October 2023.
In the course of managing that litigation, the Associate Justice heard an application for the appointment of a litigation guardian for Mr Maros. He is 97 years of age. His solicitor, who has acted for him for a number of years in this and other litigation, gave evidence that he was concerned that his client was losing the capacity to engage with the litigation. Mr Maros consented to the appointment of a litigation guardian.
Mr Luca, a respondent in the primary proceeding, opposed the appointment of a litigation guardian even though he claimed that his father had not had legal capacity for around two years.
In the circumstances, and perhaps not surprisingly, the Associate Justice appointed a litigation guardian.
During the hearing of the application on 4 July 2025, Mr Luca told me that Mr Jackson, the solicitor for the first and second respondents, was conflicted. Mr Luca went on to say that Mr Camatta is not a suitable guardian. I was not provided with any details on that issue. At all events, Mr Luca says his father lacks legal capacity.
The appeal to the Auxiliary Justice
By a notice of appeal dated 23 April 2025, Mr Luca has appealed against the appointment of a litigation guardian. Amongst other matters, it is complained that the Associate Justice failed to permit the litigation guardian to be cross‑examined and his reasons for making the appointment are said to be inadequate.
In the course of managing the appeal, on 26 June 2025 the Auxiliary Justice heard and dismissed Mr Luca’s application that she recuse herself. In addition, she dismissed the application for a stay of the orders made concerning the appointment of a litigation guardian.
The appeal to the Court of Appeal
By notice of appeal dated 30 June 2025, Mr Luca sought leave to appeal concerning the following nine grounds of appeal:
1. The learned Auxiliary Justice erred in fact and in law.
2. The learned Auxiliary Justice erred in her findings of facts, and
3.The learned Auxiliary Justice erred in her application of erroneous factual findings and their application to the law or appropriate legal Practice, Protocols and Procedures applicable.
4.The learned Auxiliary Justice misdirected herself as to the appropriate applicable law and legal principles she was to follow and apply.
5.The learned Auxiliary Justice applied legal Practice, Protocols and Procedures that were not applicable.
6.The learned Auxiliary Justice failed to apply the correct legal Practice, Protocols and Procedures that are applicable.
7.The learned Auxiliary Justice failed to apply the correct Case Law of established legal principles that apply to the type and nature of the Interlocutory Application her determined.
8.The learned Auxiliary Justice care and conduct of the matter before her has prejudiced the Appellant’s case – and allowed the Respondents to still be able to continue with the substantive matter, despite the egregious, ingenious and injurious behaviour of the Auxiliary Justice.
9.The learned Auxiliary Justice herself was a presenter in a Webinar on 17th June 2025 wherein she described how to discriminate against self-represented litigants and how to cause other judicial officers to be warned ahead of time as to the label or categorisation made by HH the learned Auxiliary Justice.
In an affidavit filed in support of the application, Mr Luca said that the Auxiliary Justice is determined to hear the appeal on 10 July 2025 even though he seeks an order that the hearing date be vacated, and a new timetable set for the hearing and determination of the matter pending the outcome of the appeal.
Mr Luca went on to depose that these proceedings have become protracted. He said that he has continuously sought legal representation, but he continues to represent himself because of financial constraint. Mr Luca said there is ongoing conflict between him and his sister, the second respondent, after she “had him arrested” when he was trying to engage with police to exercise what he described as his duly registered enduring power of attorney.
In argument, it became clear that Mr Luca and Ms Greig harbour significant ill-will toward the second respondent, and they are aggrieved by the way in which this litigation has been conducted.
As for the appeal to this Court, Mr Luca referred to what he contended was “the conflict” in the Auxiliary Justice. He said that particulars of that conflict will be provided in a further affidavit and continuing with the appeal before the Auxiliary Justice will cause him serious prejudice. Mr Luca was reluctant to go into detail about these matters because he said he wanted the chance to properly prepare that part of his case, and to present it in what he described as the correct forum, in a procedurally fair way.
A reading of the appeal grounds filed in this Court does not suggest any obvious error in the approach of the Auxiliary Justice, still less obvious error in her refusal to recuse herself or her refusal to grant a stay.
Most of the complaints set out in the grounds of appeal are embarrassing in that they do not clearly particularise material error. The use of phrases such as “the egregious, ingenious and injurious behaviour of the Auxiliary Justice” (appeal ground 8) tends to obscure rather than illuminate the existence of any error in the decision or approach of the Auxiliary Justice.
In so far as it is suggested that the Auxiliary Justice should be disqualified, the only particular concerns a presentation her Honour made during a webinar on 17 June 2025 when “she described how to discriminate against self‑represented litigants …”. I have no evidence about that presentation before me. How a presentation made in a webinar relates to the conduct of Mr Luca’s appeal from the Associate Justice is not at all clear. It was not suggested, for example, that the Auxiliary Justice said anything about Mr Luca or this particular litigation during that webinar.
Finally, Mr Jackson, for the first and second respondents, questioned the competency of the appeal insofar as it is based only on the refusal to disqualify, without more.[2]
[2] Hanna v Flinders University [2025] SASC 6, [41]-[45] (Hughes J).
The determination of the application for a stay
These parties have previously come before the Court of Appeal concerning orders made regarding the deceased in the South Australian Civil and Administrative Tribunal.[3] My involvement in that proceeding does not have any bearing on my capacity to hear the present application. In any event, and given the urgency, Mr Luca expressly waived any objection he may have to my involvement.
[3] Luca v Eckert (No 2) [2024] SASCA 136.
The principles governing the grant of a stay pending appeal are well-known. For example, as the Court explained in Marschall v Elson (No 2):[4]
A successful litigant is ordinarily entitled to the benefit of a judgment unless and until it is set aside or varied on appeal. It is for the party seeking a stay to demonstrate a proper basis for the favourable exercise of the court’s discretion. When determining whether it is in the interests of justice to grant a stay the court will usually evaluate that by reference to factors such as whether and to what extent the appeal is reasonably arguable, as well as the balance of convenience.[5]
[4] Marschall v Elson (No 2) [2023] SASCA 3, [10] (Livesey P, Lovell and Doyle JJA).
[5] Hackney Tavern Nominees Pty Ltd v McLeod (1983) 33 SASR 590 (White J); Playford Vineyard Pty Ltd v Wishford Nominees Pty Ltd (No 2) [2018] SASC 152, [19]-[25] (Stanley J).
In Franklin v South Australian Housing Authority, this Court emphasised the need for the identification of utility associated with an appeal when considering a stay application:[6]
It is necessary for the applicant to demonstrate proper reason for the favourable exercise of the discretion to grant a stay pending an application for leave to appeal. However, even assuming that there is a bona fide appeal with some prospect of success, it is also necessary for the applicant to address why the balance of convenience favours the grant of a stay, including any prejudice likely to be suffered by any party depending on whether a stay is or is not granted.[7] If there is no utility in an appeal, it will usually be difficult indeed to demonstrate that a stay should be granted.
[6] Franklin v South Australian Housing Authority [2024] SASCA 3, [8] (Livesey P and Bleby JA).
[7] Lesses v Maras (No 2) [2016] SASC 140, [6]-[8]; Georganas v Georganas [2024] SASCA 1, [5]-[6] (Doyle JA).
In this case, it is difficult to confidently conclude that the proposed appeal is reasonably arguable or that leave to appeal should be granted. Indeed, I have my doubts about whether it is a bona fide appeal with some prospect of success.
However, even if that were not so, the only detriment associated with continuing with an appeal hearing next week is the risk that the appellant will have to engage with an appeal which, on his case, should never have been heard. He is not legally represented and there is no evidence of any financial or other prejudice.
In all of these circumstances, I am not satisfied that this is a proper case in which to order a stay pending appeal. It follows that I am not satisfied that it is appropriate to adjourn the matter so as to obviate the hearing of the appeal next week.
Conclusion
The application for a stay is refused.
The applicant must pay the costs of the first and second respondents, fixed in the sum of $2,000.
The appeal before the Auxiliary Justice next week will proceed.
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