Luca v Maros
[2025] SASC 121
•25 July 2025
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 is better left for trial in the primary action. I note, however, that before her death, there were South Australian Civil and Administrative Tribunal (‘SACAT’) proceedings in relation to the deceased, where the question of her capacity was addressed. Mr Maros’ solicitor, Mr Jackson, acted for the daughter of Mr Maros and the deceased in that action. Mr Jackson had met the deceased once and had also met Mr Maros in the context of that action, before Mr Maros instructed him to act on his behalf in this matter. Before the commencement of the primary litigation, Mr Jackson acted for Mr Maros in an action dealing with the question of how the deceased’s remains should be dealt with.
At the time that he commenced the primary action, Mr Maros was 96 or 97 years old. Mr Jackson was satisfied at that time that Mr Maros did not suffer from a legal disability and had capacity to conduct the litigation. Mr Jackson deposed, however, that after meeting with Mr Maros on 21 March 2025 and 25 March 2025, he began to have concerns about Mr Maros’ capacity.[1] Mr Jackson described the matters that have caused him concern and said:[2]
… He retains a good understanding of the matter, and his affairs in general, at a high level in my view. It is detail that he is starting to have difficulty with.
[1] CIV-24-8206, FDN 28, [2].
[2] Ibid [27].
Mr Jackson discussed his concerns with counsel and with Mr Maros, and recommended that a litigation guardian be appointed for Mr Maros. Mr Maros agreed with this proposal.
Mr Maros affirmed an affidavit in support of the application that a litigation guardian be appointed. He said:[3]
However, I am physically frail, and I do have difficulties and need assistance to deal with managing my day-to-day affairs. I accept that I would also have some practical difficulties in administering Kathleen’s [the deceased’s] estate. I have poor eyesight now and need assistance to read letters and other correspondence.
[3] CIV-24-8206, FDN 21, [3].
Mr Jackson’s meetings with Mr Maros on 21 and 25 March 2025 were for the purpose of taking instructions on an application brought by Mr Luca to have Mr Jackson enjoined from acting for Mr Maros. That interlocutory application,[4] was filed on 3 February 2025 and was listed for hearing on 1 April 2025. Following his meeting with Mr Maros on 25 March 2025, Mr Jackson promptly filed an application to have a litigation guardian appointed; this application was made returnable to 1 April 2025, at the hearing at which Mr Luca’s interlocutory application was to be argued.
[4] CIV-24-8206, FDN 15.
At the hearing on 1 April 2025, the Associate Justice made the following remarks:[5]
The applicant by application FDN 23 seeks to appoint a litigation guardian for the applicant. The applicant is 97 years of age. His solicitor has been acting for him for a number of years in this and other litigation. In recent weeks, the solicitor thinks the applicant has deteriorated significantly. There is now a concern that he is losing the capacity to engage with this litigation. The applicant’s solicitor says the position is marginal. To the extent that it is relevant, the applicant himself consents to the appointment of a litigation guardian. The first respondent says that his father has not had capacity for about 2 years but opposes the appointment of a litigation guardian. In the circumstances it is appropriate to appoint a litigation guardian.
[5] CIV-24-8206, FDN 29.
The Associate Justice then made an order appointing Mr Franco Camatta as Mr Maros’ litigation guardian. The hearing of Mr Luca’s application FDN 15 was adjourned to 22 May 2025.
The appeal
Mr Luca has now appealed the order that Mr Camatta be appointed Mr Maros’ litigation guardian. The grounds of appeal are:[6]
[6] FDN 7.
1.That the Master, HH Associate Justice Dart, erred in his finding/s of fact/s, and/or
2.That the Master, erred in his application of the erroneous facts he found to the relevant applicable law, practice and procedure, and/or
3.That the Master, erred in his application of the correct relevant Case law, and/or
4.That the Master, erred in not allowing the Appellant any opportunity to file any rebuttal materials, and/or
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), and/or
6.That the Master failed to provide adequate reasons for his Ruling, and/or
7.That the Master failed to undertake a proper process of judicial fairness to be undertaken before the appointment of the Litigation Guardian given that this appointment was not by consent.
(underlining and bold in original)
Mr Luca sought to have the order appointing Mr Camatta set aside and Mr Maros examined by “a suitably qualified medical and/or mental health practitioner to determine the First Respondent’s mental capacity”.[7]
[7] Ibid.
I note that, before the hearing of the appeal, Mr Luca brought an application seeking orders that I recuse myself, that the order appointing Mr Camatta be stayed, and that the Court grant leave to rely on fresh evidence. I dismissed this application, and told Mr Luca that if he wished to adduce fresh evidence, he was required to set out in an affidavit the nature of the evidence which he sought to adduce. I further note that Mr Luca appealed my decision. This was dealt with urgently by the Court of Appeal, who dismissed the application.[8]
[8] Luca v Maros & Ors [2025] SASCA 76.
The appeal hearing proceeded on 10 July 2025. During the course of the appeal hearing, Mr Luca sought to rely on a number of transcripts that he prepared of conversations that he recorded between Mr Maros and others. Mr Jackson objected to the admissibility of this material, first on the basis that it was recorded in breach of the Surveillance Devices Act 2016 (SA), and second, on the basis that it was irrelevant. The conversations on which Mr Luca sought to rely occurred in 2023.
I ruled that the transcripts were not admissible on the ground that they were irrelevant to the matters before me in the appeal. I found that recordings of conversations between Mr Maros and others in 2023 would not assist in determining the question of whether a litigation guardian should be appointed in 2025. I did not address the question of whether the recordings were made in breach of the Surveillance Devices Act 2016 (SA), as this would require evidence of a range of matters which was not currently before the Court and which was not relevant to the question on appeal.
During the course of the hearing, it became clear that the crux of Mr Luca’s appeal was his contention that the appointment of Mr Camatta occurred in a way that amounted to a denial of procedural fairness. This is because it occurred without sufficient notice to him and on an occasion when he expected his application to have Mr Jackson precluded from acting for his father dealt with.
In essence, Mr Luca’s position can be summarised as follows. Mr Maros has lacked capacity for several years; the recordings on which he sought to rely would demonstrate that there is a clear difference between the position that he took on various things in 2023, compared to what he has told Mr Camatta now. Mr Luca contended that the question of when Mr Maros lost capacity is relevant to this action as the appointment of Mr Camatta as his litigation guardian is an attempt by Mr Jackson to hide the fact that Mr Maros lost capacity a long time ago. Mr Luca’s submission was that he was not concerned about Mr Camatta himself, but about the way that he was appointed. In particular, he took exception to the fact that Mr Camatta was introduced by Mr Jackson, and at the hearing on 1 April 2025, he walked into the courtroom with Mr Luca’s sister (who supports the position of Mr Maros). He further appeared to suggest that there was some improper connection between Mr Jackson and Mr Camatta; his evidence for this was that they had shared “likes” on social media, which should raise a question of lack of impartiality.
Mr Luca further submitted that there was no need to appoint Mr Camatta as Mr Maros’ litigation guardian, because there were already people able to take care of him. I have assumed that, in making this submission, Mr Luca referred to himself and Ms Greig. He said that he was not given time to respond to the application to appoint a litigation guardian and that the argument that had been listed on 1 April 2025 was vacated without procedural fairness.
In making these submissions, Mr Luca contended that the Associate Justice made a material error in finding that Mr Jackson had represented Mr Maros for a number of years. In fact, Mr Jackson has only represented Mr Maros since 2024. Mr Jackson conceded that this was an error on the part of the Associate Justice.
Throughout the hearing, Mr Luca’s submissions were discursive and often irrelevant. He tended to dwell on earlier litigation between himself on the one hand and his parents and sister on the other, as well as the events leading up to that litigation. I accept that some of those matters may be relevant to the primary action; they are not, however, relevant to the appeal, which is confined to the question of whether the Associate Justice erred when appointing a litigation guardian for Mr Maros.
I note that, during the course of the hearing, Mr Luca suggested that there may be new evidence which was not currently in his possession which might be relevant to this appeal. He made the somewhat cryptic submission:[9]
Now, you're saying that I can't bring other matters into this, but I believe that I can, but I also believe that arguing the reason why I want this new evidence here might actually prejudice the ability of me to get that evidence. That's the only problem I have with giving this new evidence to the courtroom. It's seriously important evidence and it was promised to be delivered to me this week and it hasn't yet, and it may change everything. It may take things into the criminal arena.
[9] T39.22-31.
I do not know what evidence Mr Luca was referring to, however, in the absence of the evidence itself, as well as an application for leave to rely on it at the appeal hearing, I am unable to deal with this issue further.
The final issue which Mr Luca raised and which I consider I need to address is his submission about my “attitude” to self-represented litigants. This stems from a continuing professional development session hosted by the Law Society of South Australia, that I presented on 17 June 2025. The session addressed ways in which practitioners could manage legal actions which involved self-represented litigants. This issue was raised by Mr Luca at the hearing where he requested that I recuse myself and again at the hearing of the appeal of my decision not to do so. Mr Luca again sought to raise this matter at the hearing of this appeal. I refused to hear further submissions on this topic, on the basis that it had been dealt with previously, first by me and then by the Court of Appeal.
On behalf of the first and second respondents, Mr Jackson submitted that, once he formed the view that Mr Maros’ capacity was impaired, he had a duty to put that before the Court and have a litigation guardian appointed. He said that it would be as inappropriate to appoint Mr Luca’s sister to that position as it would be to appoint Mr Luca; it is clear that, given the conflict within the family, an independent person was required.
Mr Jackson submitted that leave to appeal should be refused and the appeal dismissed because it was completely unrealistic to expect a court to consider with any seriousness the appointment of Mr Luca and Ms Greig as suitable litigation guardians for Mr Maros.
As I have previously said, Mr Jackson conceded that the Associate Justice made an error when he said that he (Mr Jackson) had acted for Mr Maros for several years. He says, however, that that error is not material and does not lead to a conclusion that the decision that he reached is flawed, particularly against the background that Mr Luca concedes that Mr Maros does not have the capacity to carry on this litigation without assistance.
Mr Jackson submitted that, given that all parties agreed that Mr Maros cannot fully manage this litigation on his own, it is appropriate that a litigation guardian be appointed to assist him.
As to the question of procedural fairness, Mr Jackson conceded that the application to have a litigation guardian appointed was brought at short notice. While conceding that is the case, however, he noted that Mr Luca had sufficient notice of the application to file two affidavits to address it before it was heard, in which he acknowledged that Mr Maros had lost capacity. In that circumstance, Mr Jackson submits that the only topic that was open for question at the hearing on 1 April 2025 was the identity of the litigation guardian.
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.
The only error that Mr Luca has been able to demonstrate that the Associate Justice made was his statement that Mr Jackson has acted for Mr Maros for several years. This is not the case, and Mr Jackson has conceded this. It is not, however, a material error. It is not one that leads me to the conclusion that the Associate Justice’s decision should be impugned.
I reject Mr Luca’s contention that he was denied procedural fairness in the hearing of the litigation guardian application. It is true that the application was dealt with only a few days after it was filed and at a time that had been set aside to deal with a different application. However, Mr Luca had sufficient time to prepare and file two affidavits in answer to it. Further it was appropriate that it be dealt with before the application to address Mr Jackson’s representation of Mr Maros, so that the independent litigation guardian would have an opportunity to turn his mind to the application.
Given that Mr Luca is also of the view that Mr Maros’ capacity is impaired, there is no basis to require that Mr Maros undergo an examination. Nor is it necessary or appropriate to require any sort of inquiry or cross examination of Mr Camatta. Mr Camatta has certified that he is an independent solicitor and that he has no relationship to any of the parties in this proceeding. He has further certified that he does not have an interest in this action which is adverse to that of Mr Maros. He has certified that he understands the rights and obligations of a litigation guardian.
Mr Camatta is also an officer of the Court. Clause 3 of the South Australian Legal Practitioners Conduct Rules provides:
3.1 A legal practitioner’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.
As a legal practitioner, any matters that Mr Camatta certifies fall within his duty to the Court. I accept the matters that Mr Camatta has certified as correct and do not consider that it would be appropriate to go behind them by questioning him further.
I will address each of the grounds of appeal in turn.
1.That the Associate Justice erred in his finding/s of fact/s
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.
What amounts to adequate reasons will vary depending on the facts and circumstances of the matter. Matters involving complex questions of fact and law will require far more extensive reasons to elucidate the basis for a decision. A straightforward matter which involves no more than the application of the UCR to an uncontested factual situation (that is, that Mr Maros fell within the definition of a person under a legal incapacity) does not require extensive reasons. The Associate Justice’s reasons were adequate for the circumstances.
7.That the Master failed to undertake a proper process of judicial fairness to be undertaken before the appointment of the Litigation Guardian given that this appointment was not by consent.
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.