Matute v Cramer - [2023] SASCA 78

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MATUTE v CRAMER
[2023] SASCA 78
Judgment of the Court of Appeal (ex tempore)
(The Honourable Acting Chief Justice Livesey and the Honourable Justice Bleby)
13 July 2023
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES - FUNCTIONS OF APPELLATE COURT - SUBSTANTIVE RIGHT OR MATTER OF PROCEDURE - MATTERS OF PROCEDURE - INTERLOCUTORY ORDERS
HEALTH LAW - MENTAL HEALTH GENERALLY - GENERAL LAW AFFECTING PERSONS WITH MENTAL ILLNESS OR IMPAIRED CAPACITY - CONDUCTING LEGAL PROCEEDINGS - LITIGATION GUARDIANS AND NEXT FRIENDS
Appeal against decision of a Judge of the District Court dismissing an appeal from the decision of a District Court Master to appoint a litigation guardian.
The applicant is an unrepresented litigant who claims at least $7 million in damages in personal injury proceedings arising from a motor vehicle accident. The respondent sought an order that the applicant be declared a person under a disability and that there be appointed a litigation guardian. Following a lengthy inquiry, a District Court Master found that the applicant is a person under a disability and required a litigation guardian following which the Public Trustee was appointed. The applicant sought to appeal against that decision around a year after it was made. After hearing argument a Judge refused the extension of time and dismissed the applicant’s appeal.
HELD (Livesey ACJ and Bleby JA, refusing the application for leave to appeal):
1.The applicant has not demonstrated any reason to doubt the decision of the judge nor any basis to consider that the judge erroneously failed to identify relevant and material error in the decision-making of the Master.
2.The Court is particularly reluctant to grant leave to appeal where the orders do not affect the substantive rights of the parties.

Uniform Civil Rules 2020 (SA) r 74.5, 74.6 and 212.2, referred to.
Fletcher v Australian Health Practitioner Regulation Agency [2023] SASCA 36; Forrest v ASIC (2012) 247 CLR 486; McDonald v Attorney-General for the State of South Australia [2022] SASCA 43; Manning v Russell (2015) 123 SASR 135; Matute v Cramer [2022] SADC 78; M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27; Rankine v State of South Australia [2022] SASCA 18; Slaveski v State of Victoria (2009) 25 VR 160; Vakauta v Kelly (1989) 167 CLR 568, considered.

MATUTE v CRAMER
[2023] SASCA 78
Court of Appeal – Civil: Livesey ACJ and Bleby JA
THE COURT (ex tempore):
Introduction

By a Notice of Appeal dated 11 April 2023, the applicant seeks leave to appeal against a decision of a judge of the District Court delivered on 29 June 2022. That decision dismissed an application for an extension of time to appeal and an appeal against a decision of a District Court Master appointing a litigation guardian.[1]
[1] Matute v Cramer [2022] SADC 78.
The application for leave to appeal is out of time.
By an application dated 21 June 2023, the respondent seeks the dismissal of the applicant’s application for an extension of time to institute her appeal as well as, in the alternative, refusal of leave to appeal. Strictly, this application should probably seek the dismissal of the application for an extension of time to institute the application for leave to appeal.
In response, the applicant has, by application dated 28 June 2023, sought a stay of the District Court proceedings. By a further application dated 29 June 2023, she has sought an order striking out “all of Mr Alvaro’s affidavits and then, the whole case”. By further applications dated 12 July 2023, the applicant seeks rescission of the Master’s order and an extension of time. The affidavit evidence in support includes a report from Dr Muhammad Aamir Latif, a clinical psychologist, lecturer, Higher Education Department, Pakistan Government, Punjab, Pakistan.
The District Court proceedings
The applicant claims damages for injuries sustained in a motor accident on 4 November 2013 for which liability has been admitted. Proceedings were commenced in respect of this claim in the District Court during October 2018. The applicant claims at least $7 million in damages.[2] There has, as yet, been no settlement conference.
[2] It would seem that the applicant has claimed between $7 million and $15 million in damages, which appears very high.
By an application dated 5 December 2018, the respondent sought an order that the applicant be declared a person under a disability and that there be appointed a litigation guardian.
Following a lengthy inquiry, in September 2020 a District Court Master found that the applicant is a person under a disability and required a litigation guardian following which the Public Trustee was appointed.
The applicant sought to appeal against that decision around a year after it was made. After hearing argument on 8 March 2022, on 29 June 2022 the judge refused the extension of time and dismissed the applicant’s appeal.
The application for leave to appeal to this Court
As the decision of the judge involved determining an appeal against an interlocutory decision, the application for leave may be made to a single judge or to the Court of Appeal.[3]
[3] See r 212.2 of the Uniform Civil Rules 2020 (SA).
The applicant has expressed the wish to proceed in the Court of Appeal. The respondent does not oppose this. Accordingly, an order will be made permitting the application for leave to appeal, and the associated applications, to be heard and determined in this Court.
The judgment dismissing the appeal
The judge reviewed the affidavit evidence before the Master. This included a report from a psychiatrist, Dr Davis, who had been directed by the Master to assess the plaintiff and answer questions posed by the Master.
The applicant refused to attend any psychiatric examination. Dr Davis prepared a report based on his review of the medical records and history of the applicant. Dr Davis referred to the applicant’s severe mental illness and past diagnosis of Bipolar Affective Disorder. Although there had been no formal assessment of the applicant’s mental state since discharge from Noarlunga Hospital in 2016, in the opinion of Dr Davis:[4]
However, extensive documentation highlights ongoing psychiatric disturbance with manifest paranoid ideation and irrationality, thought disorder, impairment of insight and disturbance of judgement. At times, some of the paranoid ideation is of delusional intensity. The plaintiff continues to deny the reality of mental illness and its impact on her life.
[4] Matute v Cramer [2022] SADC 78, [6].
Both the judge and Dr Davis referred in favourable terms to the applicant’s apparent intelligence and education. Nonetheless, Dr Davis noted repeated irrational behaviour in the applicant’s dealings with independent medical specialists, the respondent and the Court, as revealed by the documentation provided to him. Importantly, according to Dr Davis:[5]
It is apparent that engagement in these protracted proceedings has contributed to further disturbance of mental state. The documents also highlight a striking naivety and irrationality in relation to the plaintiff’s sense of entitlements and eligibility for substantial financial compensation.
[5] Matute v Cramer [2022] SADC 78, [6].
The judge observed that whilst the applicant was given an opportunity to respond to the report of Dr Davis, she did not take that opportunity. The judge referred to the Master’s conclusion that in 2020 and into the future, the plaintiff was not mentally able to make rational decisions about taking, defending or settling proceedings.[6]
[6] Matute v Cramer [2022] SADC 78, [7].
Although the Public Trustee was appointed litigation guardian, she took no active role in the applicant’s appeal or subsequent challenges to the orders made. She has taken no role in relation to the matters before this Court.
In determining the appeal before him, the judge considered and applied the relevant Rules of Court and authorities such as Manning v Russell.[7]
[7] Manning v Russell (2015) 123 SASR 135, [15] (Nicholson J). See also Slaveski v State of Victoria (2009) 25 VR 160, [32]-[34] (Kyrou J).
The judge observed that the Notice of Appeal was difficult to follow but there were six grounds of appeal. These included that various Masters had committed miscarriages of justice and that the court and the respondent were “torturing” the applicant. Ultimately, the judge found that whilst it was necessary to guard against conducting inquiries such as these “too easily”, he was not satisfied that any of the grounds were made out:[8]
My observations of the appellant are that she is an intelligent and articulate person. However, her attitude to the litigation and her conduct in Court is concerning. She appears to believe that there is a conspiracy against her and that the solicitors and the Court are involved in that. Regardless of the medical evidence before the Court, my own observations are that the applicant needs the assistance of a litigation guardian to conduct her claim. Objectively, she has a good claim because liability is admitted. She asserts that her claim is worth $7 million. There appears to be no rational basis for a claim of that magnitude. The appellant clearly needs assistance to make rational decisions about the conduct of the proceedings and possible settlement.
[8] Matute v Cramer [2022] SADC 78, [20], [25].
The application for leave to appeal
Before addressing the application for an extension of time, it is helpful to first consider the application for leave to appeal. The requirements for a grant of leave to appeal are well-understood. For present purposes, it is sufficient to concentrate on whether the judge’s decision is attended by sufficient doubt to warrant it being reconsidered on appeal.[9]
[9] Rankine v State of South Australia [2022] SASCA 18, [2]-[3].
In the Notice of Appeal filed with this Court, the applicant has articulated at some length a number of grounds of appeal which may be summarised and addressed as follows:
1.“Apprehended bias evident in the judgment and in the lack of disqualification of the judge” due to a “pre-existing friendship with Master Olsson and the respondents”.
It is not apparent that any application was made to Judge Dart to disqualify himself from sitting on the appeal. Absent an objection, there was no basis for the judge to decline to sit. The reasons betray no hint of bias.[10] This ground is without apparent merit.
[10] Compare Vakauta v Kelly (1989) 167 CLR 568.
2.“Application of retrospective legislation to reach the judgment and the decision”.
Under this ground, the applicant criticises the reliance upon the 2006 Rules rather than the 2020 Rules. Although it is suggested that the order could not have been made under the 2020 Rules, no support for that proposition is advanced. It has not been demonstrated that reliance upon the 2006 Rules - the Rules which operated at the time the inquiry was commenced - has occasioned any injustice, nor that there is any relevant difference between the 2006 and 2020 Rules. This ground is without apparent merit.
3.“There was blatant procedural unfairness pursuant to Rule 208.30.5 because, amongst other complaints, the applicant was deprived of her right to speak”.
The applicant asserts that there were 38 instances of the litigation guardian speaking at the hearing “on 20 January” whereas there were only nine instances of her speaking, “as clearly shown by the transcript”. This appears to be a reference to the directions hearing held on 20 January 2022 at which counsel for the Public Trustee appeared by telephone. If so, the transcript records the applicant speaking on many more than nine occasions. In any event, a simple tally of occasions when a party spoke does not, without more, ground a claim for a denial of procedural fairness.
More fundamentally, that hearing was only a directions hearing. The judge heard the appeal on 8 March 2022. A review of the transcript of that hearing does not support any assertion that the applicant was not heard. Pages 2 to 10 of the transcript of that hearing record the applicant’s substantive submissions on the appeal. Pages 11 to 23 record the submissions of the respondent. Those submissions were punctuated by interjections from the applicant throughout. At page 23, the judge asked the applicant if there was anything else she wished to tell him. The applicant responded, “Yeah, there’s quite a lot”. The balance of the transcript through to page 29 records the applicant’s further submissions. This ground is without apparent merit.
4.“The judgment is based on false and misleading information and assertions without any valid proof”.
The applicant has not attempted to address the evidence of Dr Davis, psychiatrist, or otherwise to demonstrate any arguable basis for this ground. Insofar as the applicant has recently adduced a psychologist’s report, we will return to that.
5.“This case has become a travesty of justice”.
The applicant asserts that the proceedings have been “marred by multiple miscarriages of justice as a result of the perversion and obstruction of the course of justice introduced by all Justice Officers from the District Court and by Judge Dart”.
This ground contains four particulars. The first is that the inquiry should never have been commenced. That ground is without merit. The second is that the District Court Masters failed to pay attention to an order made by Chief Justice Grant on 15 February 2018. The relevance of that order is not explained. The third is that the respondent breached a duty of care. Presumably, that is a reference to the allegations of negligence in the main proceedings in the District Court. It does not demonstrate arguable error in the reasons of the judge. The fourth particular is that the imposition of a litigation guardian was accomplished through “deception, haste and without a shred of evidence”. The applicant asserts that she is rational and perfectly capable of completing the proceedings without the assistance of a litigation guardian. This particular falls with appeal ground 4.
6.There was “too much agreement of the respondents, Public Trustee and the Justice Officers on matters of fraud”. Here the applicant contends that there is an “incomprehensible level of tolerance and co-operation” amongst all those involved in her litigation.
Although an allegation of fraud is made, it is not particularised.[11] The allegation does not go beyond the assertion that “legal documents” have been “tampered with”. This ground is not explained and without apparent merit.
7.“Lawless of the court case”. Under this ground, the applicant refers to s 125A(3)(a) of the Motor Vehicles Act 1959 which allows the insurer of a defendant to be joined as a party.
How this bears on the appointment of a litigation guardian is not explained. This ground is without apparent merit.
[11] To allege fraud is a serious matter and it must be distinctly alleged and particularised, and clearly proved, Forrest v ASIC (2012) 247 CLR 486, [25]-[26] (French CJ, Gummow, Hayne and Kiefel JJ).
Ultimately, the applicant asserts that the judgment reached by the judge, as well as various decisions of the Masters, are decisions “of such a nature that no reasonable Justice Officer, properly directing himself or herself on the law, could possibly reach”. No basis for this assertion has been supplied.
The respondent submits that the applicant’s evidence is “irrational, demonstrates paranoia and, in many instances, is offensive”. No basis for the allegation of a conspiracy involving the respondent, various judicial officers and the Public Trustee has been disclosed. It is also submitted that the applicant’s recent material “only serves to confirm the applicant’s incapacity”.
The determination of the application
The question whether to grant leave to appeal requires consideration of whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal, whether it raises an issue of general principle or importance and whether allowing the decision to stand would work a substantial injustice to the applicant.[12] With all due respect to the applicant, she has not demonstrated any reason to doubt the decision of the judge nor any basis to consider that the judge erroneously failed to identify relevant and material error in the decision-making of the Master. These are powerful reasons telling against the grant of leave to appeal.
[12] M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27, [7] (Doyle and Livesey JJA).
The Court is particularly reluctant to grant leave to appeal where the orders do not affect the substantive rights of the parties.[13]
[13] See McDonald v Attorney-General for the State of South Australia [2022] SASCA 43, [22] (Livesey P and Bleby JA); Fletcher v Australian Health Practitioner Regulation Agency [2023] SASCA 36, [16] (Livesey P and Lovell JA).
The appeal is without merit. Moreover, a lengthy extension of time is required.
The right to conduct one’s own litigation is important. The balance struck by the rules and practice of the Court is intended to facilitate a party continuing to litigate, albeit with the assistance of a litigation guardian, in circumstances where the capacity of the party to properly engage in litigation has been shown to be undermined by reason of disability.
In this case, the existence and effect of the applicant’s disability have been demonstrated by the terms of a psychiatric report as well as by the observations of those who have interacted with the applicant in the course of conducting this litigation. The applicant has identified no basis to question the findings made about the existence of her disability or its effect on her capacity to conduct this litigation.
The applicant’s most recent applications and affidavit material support the conclusion that she lacks an understanding of the processes and Rules of Court and requires considerable assistance with the conduct of her litigation.[14] For example, in one of her recent affidavits, the applicant attributes various speeding fines to nefarious conduct of the respondent. In addition, she has adduced a psychologist’s report from Pakistan. In her most recent affidavit, the applicant explained:
… The applicant engaged the services of Dr Muhammad Aamir Latif, an esteemed and independent clinical psychologist also working as Lecturer in Higher Education Department of Pakistan Government, to conduct a thorough assessment of mental well‑being of the applicant. The assessment included a series of tests, interviews, and the examination of relevant documents, ensuring a comprehensive evaluation of the mental state. The Doctor prepared an assessment report, dated 7 July 2023, which concluded that the applicant is absolutely fine and exhibit no mental incapacity. The report unequivocally confirms the mental capability to legally represent myself in the present case.
[14] Slaveski v State of Victoria (2009) 25 VR 160, [32] (Kyrou J).
In the course of his report, Dr Latif said, amongst other things:
I have conducted 2 sessions with Susana Matute and performed Mental Status Examination …
The results were absolutely perfect and healthy, like the results that Susana achieved with Dr Wohlers, she got results of 100% on all tests. This indicates she has no cognitive impairment and no emotional and psychological distortion. …
…
Susana Matute has no mental problem and no mental condition. She proved to be totally lucid, focused, and orientated, showing a fabulous balance in her life. … While analyzing her CV, I realized it’s excellent because it shows that capacity. Susana Matute wouldn’t be able to have such an excellent CV if she had had a mental illness. …
It is utterly ridiculous to have been calling Susana Matute bipolar and mentally ill. Specially Bipolar. All bipolar people have difficulties dealing with people, they get frequently arrested by the Police, or at times, they display erratic behaviour. Here is someone who doesn’t even present features of those symptoms but is having the condition very falsely attributed to her. It is clear that those are false and prefabricated statements and that they shouldn’t have been applied to Susana Matute.

Dr Latif’s expert opinion evidence does not comply with the applicable common law rules or Rules of Court. Unfortunately, the applicant was unfamiliar with these and unable to assist. For example, she was unable to address the requirement for compliance with the expert code of conduct.[15] Dr Latif’s report extends to a critique of the conduct of the various judicial officers involved. How this properly relates to his expertise or the proper bounds of expert opinion evidence remains unexplained. Indeed, it must be said that the applicant’s reliance upon this report eloquently demonstrates her need for considerable assistance in the conduct of this litigation.
[15] See, for example, r 74.5 and r 74.6 of the Uniform Civil Rules 2020 (SA).
Conclusion
In all of these circumstances, there is no utility in granting an extension of time. The application for an extension of time and the application for leave to appeal are refused.
It is not necessary to make any order in relation to the respondent’s application.
So far as the applicant’s most recent applications are concerned, there is no basis for a stay of the District Court proceedings or for striking out the respondent’s affidavit evidence. Her applications do not otherwise add to the issues before this Court. Those applications should also be dismissed.
After hearing from the parties regarding costs, the applicant is ordered to pay the respondent the sum of $2,500 which is not payable until the resolution of the District Court proceedings.