Luca v Maros - [2025] SASC 121

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
LUCA v MAROS & ORS
[2025] SASC 121
Judgment of the Honourable Auxiliary Justice Bochner
25 July 2025
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PARTIES AND REPRESENTATION - PERSONS UNDER LEGAL INCAPACITY OTHER THAN CHILDREN
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - GENERALLY - REASONS FOR JUDGMENT - ADEQUACY OF REASONS
The appellant sought to appeal a decision made by the Associate Justice to appoint a litigation guardian for the applicant in the primary proceedings.
The appellant contended that the Associate Justice erred on various grounds, including that his Honour erred in making incorrect findings of fact, incorrectly applying the law, failing to afford procedural fairness, failing to cross-examine the proposed litigation guardian and failed to provide adequate reasons.
The respondent contended that no material error was made by the Associate Justice in making the decision to appoint a litigation guardian. It was not appropriate that the litigation guardian be a family member of the applicant, and an independent solicitor had been appointed.
Held, dismissing the application:
1.The Associate Justice did not err in appointing a litigation guardian. Where the Court is satisfied that a party falls within the definition of a person under a legal incapacity, the Court must appoint an appropriate person. Consent from any other party is not a prerequisite.
2.The error made by the Associate Justice with regard to a finding of fact was not material and did not impact upon the correctness of the decision to appoint.
3.Cross-examination of the proposed litigation guardian was not appropriate where there was no material evidence to suggest that the purported appointee was not an independent solicitor.
4.The brief reasons provided by the Associate Justice were not inadequate. Brevity is not an indicator of inadequacy.

Surveillance Devices Act 2016 (SA); Uniform Civil Rules 2020 (SA) rr 2.1, 23.8, referred to.
Luca v Maros & Ors [2025] SASCA 76, discussed.

LUCA v MAROS & ORS
[2025] SASC 121
Single Judge Appeal — Civil

BOCHNER AJ: The primary action to which this appeal relates was commenced by the applicant, who was seeking to obtain a grant of probate in solemn form of the last will of his late wife (“the deceased”). The applicant, to whom I will refer as Mr Maros, says that the purported last will of the deceased is invalid because the deceased lacked capacity at the time that it was made. I will refer to this document as the “disputed document”.
The executors named in the disputed document are Mr Luca, who is the son of Mr Maros and the deceased, and Ms Greig, Mr Luca’s partner. Mr Luca seeks to propound the disputed document, and is the appellant in this appeal.
I will not recount the circumstances in which the disputed document was prepared and executed. That is a matter that…

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 Luca v Maros

Details

AGLC: Luca v Maros [2025] SASC 121
Case: [2025] SASC 121
Decision Date: 25 July 2025

CaseChat Overview and Summary

In the case of Luca v Maros, the Court of Appeal was asked to consider the appeal against the decision of the Associate Justice to appoint a litigation guardian for Mr Michael Maros, who was found to be under a legal incapacity due to his inability to manage his participation in the proceedings. The appeal was brought by Mr Luca, who opposed the appointment of a litigation guardian for Mr Maros. The appeal hinged on various grounds, including the adequacy of reasons provided by the Associate Justice and the process followed in appointing the litigation guardian.

The legal issues before the court included whether the Associate Justice had correctly applied the relevant law, practice, and procedure in appointing a litigation guardian for Mr Maros, and whether the Associate Justice had provided sufficient reasons for his decision. The court also considered whether the process followed in appointing the litigation guardian was fair and whether the Associate Justice had erred in not allowing Mr Luca to file rebuttal materials or cross-examine the proposed litigation guardian.

The court found that the Associate Justice had correctly applied the relevant provisions of the Uniform Civil Rules and the law regarding persons under legal incapacity. The court noted that the Associate Justice had provided adequate reasons for his decision, and that there was no procedural unfairness in the process followed. The court dismissed the appeal and noted that the Associate Justice was not required to have the consent of all parties to make an order for the appointment of a litigation guardian.

The court concluded that the appeal was dismissed and that costs should follow the event, with the appellant paying the costs of the respondents on the standard costs basis. The court found that there was no basis for requiring Mr Maros to undergo any form of examination or testing when all parties agreed that his capacity was impaired. The decision highlights the importance of appointing a litigation guardian for individuals under legal incapacity to ensure that their interests are properly represented in legal proceedings.

Orders

Orders of the court

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Background

Background to the litigation

I have already addressed this ground. It is accepted that the Associate Justice erred in finding that Mr Jackson had acted for Mr Maros for a number of years. This error is not material and does not lead me to impugn the Associate Justice’s decision.2.That the Master, erred in his application of the erroneous facts he found to the relevant applicable law, practice and procedure Mr Luca has not demonstrated that the error made by the Associate Justice led him to apply the relevant law, practice or procedure in an erroneous way. The length of time that Mr Jackson has been acting for Mr Maros has no bearing on whether Mr Maros requires a litigation guardian. 3.That the Master, erred in his application of the correct relevant case law The relevance of this ground is not clear. The Associate Justice did not make reference to any case law when determining that it was appropriate to appoint a litigation guardian for Mr Maros. He was applying, correctly, the relevant provisions of the UCR. 4.That the Master, erred in not allowing the Appellant any opportunity to file any rebuttal materials The fact of the matter is that the appellant did, in fact, file affidavit material which responded to the application. Further, the hearing on 1 April 2025 commenced at 9.57 am and concluded at 10.29 am and Mr Luca was given considerable time to make his submissions to the Court. 5.That the Master failed to allow the person nominated as proposed to be the litigation guardian to be able to cross-examined or to allow additional materials to be filed, to dispute the materials files in this matter, to the Application made to appoint a litigation guardian for Mr Michael Maros (the former ‘applicant’ in these proceedings) There was no basis to allow for the cross-examination of Mr Camatta before his appointment as Mr Maros’ litigation guardian. Mr Luca has not produced any evidence to suggest that the matters certified by Mr Camatta are not correct and should not be accepted by the Court. The only evidence that he produced was that Mr Camatta and Mr Jackson had exchanged “likes” on social media. An exchange of “likes” on social media does not give rise to the suspicion that Mr Camatta is not impartial.6.That the Master failed to provide adequate reasons for his Ruling Reasons will be regarded as inadequate if it is not possible to ascertain the reasoning on which the decision is based. There is no doubt that the Associate Justice’s reasons were brief. Brevity in itself, however, is not an indicator of inadequacy. I consider that, in his reasons, the Associate Justice succinctly summarised the salient matters raised in the affidavit material in support of the application. He also noted the position of Mr Luca, that is, that he agreed that Mr Maros had lost capacity, but that he opposed the appointment of a litigation guardian. He further noted that Mr Maros, himself, supported the appointment of a litigation guardian. It is difficult to see what else the Associate Justice might have added. He could, of course, have explicitly invoked UCR 23.8, however, the context of the hearing made it clear that he was well aware of its terms and of the obligation to appoint a litigation guardian if a party fell within the definition of a person under a legal incapacity.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I do not consider that there was any procedural unfairness to the process adopted by the Associate Justice. By filing two separate affidavits addressing the issues and by the fact that he was afforded a lengthy hearing to address the application, it has been made clear that Mr Luca had sufficient time to consider the application, form his own position on it and file responding material. It should be noted that the Court does not need the consent of all parties to make any order, including an order for the appointment of a litigation guardian. Once the Associate Justice determined that Mr Maros fell within the definition of a person under a legal incapacity, he was obliged to appoint a litigation guardian to assist him. Having satisfied himself that Mr Camatta was an appropriate person to be appointed, he did not need the consent of Mr Luca to make the appointment. Conclusion This appeal was not argued on the basis that leave was required. To the extent that Mr Luca required leave to appeal the decision of the Associate Justice, leave is refused. Otherwise, the appeal is dismissed. In the circumstances, there is no reason why costs should not follow the event. The appellant is to pay the costs of the respondents of and incidental to this appeal on the standard costs basis.

Ratio Decidendi

Legal Principle Established

Mr Jackson contended that there is no basis for Mr Luca’s request that there be some type of inquiry into Mr Maros’ capacity. There can be no basis for requiring him to undergo any form of examination or testing when all of the parties, including Mr Maros himself, agree that his capacity is impaired. Consideration Rule 23.8 of the Uniform Civil Rules 2020 (‘UCR’) provides (in so far as it is relevant to this appeal):23.8—Proceeding by person under legal incapacity (1) Subject to subrules (5) to (8), unless the Court otherwise orders, an action or appellate proceeding by a person under a legal incapacity must be brought by an eligible person as litigation guardian for the person under a legal incapacity.(2) An eligible person may bring an action or appellate proceeding as litigation guardian for a person under a legal incapacity if a guardian certificate is filed by the person immediately after filing of the originating process.(3) The statement of claim in a claim or supporting affidavit in an originating application brought by a litigation guardian must disclose the nature of the incapacity and, when a child, the date of birth of the person under a legal incapacity.(4) The Court may at any stage appoint a person who signs a guardian certificate as a litigation guardian for an applicant in a claim or originating application or appellant in an appellate proceeding (including in addition to or instead of any existing litigation guardian) or remove any litigation guardian on such conditions and make such consequential or transitional orders as the Court thinks fit.… UCR 2.1 defines “a person under a legal incapacity” as a person who is:(a)under the age of 18 years;(b)who, because of a mental or physical disability or illness, is not capable of managing their participation in a proceeding; or(c)whose affairs are administered (wholly or in part) under a law for the protection of persons suffering from mental or physical disabilities. It is immediately apparent that a litigation guardian can be appointed on the basis of physical disability or illness alone and is not confined to mental illness or disability. It is also apparent that, once it is clear that a person is under a legal incapacity, any action on their behalf must be brought by a litigation guardian, unless the Court orders otherwise. This leads me to the conclusion that, once Mr Jackson formed the view that Mr Maros fitted the definition of a person under a legal incapacity, he was obliged to bring this matter to the attention of the Court, with a view to having a litigation guardian appointed. It was appropriate that he did this at the earliest possible opportunity. Mr Jackson has described at some length the way in which he formed the view that Mr Maros required a litigation guardian: he was taking instructions from Mr Maros for the purpose of dealing with Mr Luca’s application to have Mr Jackson barred from acting. Once he reached that conclusion, he rightly filed the application, before Mr Luca’s application was dealt with; after all, given that the application dealt with Mr Jackson’s representation of Mr Maros, it was appropriate to have an independent litigation guardian appointed to act in Mr Maros’ best interests before that application was heard.