McVicars v South Australian Housing Trust - [2025] SASCA 52

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MCVICARS v SOUTH AUSTRALIAN HOUSING TRUST
[2025] SASCA 52
Decision of the Honourable President Livesey (ex tempore)
14 May 2025
HEALTH LAW - MENTAL HEALTH GENERALLY - GENERAL LAW AFFECTING PERSONS WITH MENTAL ILLNESS OR IMPAIRED CAPACITY - CONDUCTING LEGAL PROCEEDINGS - LITIGATION GUARDIANS AND NEXT FRIENDS
This is an interlocutory application by the respondent seeking a stay of proceedings pending the appointment of a litigation guardian for the applicant, Ms McVicars.
The respondent contended that Ms McVicars is a person “under a legal incapacity” within the meaning of r 2.1 of the Uniform Civil Rules 2020 (SA) and that a litigation guardian should be appointed by this Court.
Ms McVicars opposed the application, contending that it was a device intended only to delay the hearing of her application for leave to appeal.
The substantive appeal concerns the decision of a Deputy President of the South Australian Administrative Tribunal who, on internal review, upheld the decision of the Tribunal to terminate Ms McVicars’ tenancy with the respondent. She vacated the property after a judge of this Court dismissed an urgent application for a stay pending the appeal.
The respondent’s application for a stay of proceedings is made under r 23.11(2) of the Uniform Civil Rules 2020 (SA) and is primarily based on r 2.1(c) where the Public Trustee has been appointed administrator under s 35 of the Guardianship and Administration Act 1993 (SA).
The respondent proposed that the Public Trustee be appointed litigation guardian, but Ms McVicars has been critical of the Public Trustee. Ms McVicars wants to call evidence from her psychiatrist and, if necessary, she has suggested an alternative litigation guardian.
Held, deferring the making of orders pending further evidence from the parties:
1. An administration order regarding Ms McVicars under s 35 of the Guardianship and Administration Act 1993 (SA) is “a law for the protection of persons suffering from mental or physical disabilities” as required by r 2.1(c) of the Uniform Civil Rules 2020 (SA).
2.It follows that, in light of the administration order currently in place, Ms McVicars is a person “under a legal incapacity” within the meaning of r 2.1(c).
3.The appointment of a litigation guardian is necessary to “facilitate the efficacious conduct of … proceedings”, and proceedings should not usually be continued by a person under a legal incapacity without a litigation guardian.
4.Evidence may be available from the psychiatrist treating Ms McVicars later this week, and further evidence is required regarding a suitable person to act as litigation guardian. There are settlement discussions underway.

5. It is appropriate to defer making orders today.
Guardianship and Administration Act 1993 (SA) ss 3, 5, 35; Public Trustee Act 1995 (SA) s 53; Supreme Court Civil Rules 2006 (SA) r 4; Uniform Civil Rules 2020 (SA) rr 2.1, 23.11, referred to.
Borthwick v Carruthers (1787) 99 ER 1300; Dalle-Molle v Manos (2004) 88 SASR 193; Manning v Russell (2015) 123 SASR 135; Masterman-Lister…

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.

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Details

Case: [2025] SASCA 52
Decision Date: 14 May 2025

CaseChat Overview and Summary

This matter concerned an application by the South Australian Housing Trust (the respondent) for a stay of proceedings against Ms McVicars (the applicant), pending the appointment of a litigation guardian for Ms McVicars. The court was required to consider whether Ms McVicars had the legal capacity to conduct the proceedings herself.

The primary legal issue before the court was whether Ms McVicars possessed the mental capacity to manage her own affairs and conduct legal proceedings, or if the appointment of a litigation guardian was necessary to prevent her from being disadvantaged. This involved an assessment of the evidence presented regarding her mental state and the potential impact of her condition on her ability to participate effectively in the litigation.

The court noted that while Ms McVicars had been given an opportunity to file evidence, no proof to the contrary regarding her capacity had been offered. The court referred to the provisions of the *Guardianship and Administration Act 1993* (SA), which define "mental incapacity" as the inability to manage one's affairs due to brain or mind impairment. The court also highlighted the principles to be observed in administering a person's estate, including giving paramount consideration to the person's wishes if ascertainable, seeking present wishes, considering existing informal arrangements, and making the least restrictive decision. Despite the lack of definitive evidence of capacity, the court was concerned that Ms McVicars might be disadvantaged without a litigation guardian.

Consequently, the court decided to grant Ms McVicars a further opportunity to lead evidence, particularly from her treating psychiatrist, to demonstrate her legal capacity. The court indicated that if such evidence suggested capacity, the respondent would have the opportunity to cross-examine the psychiatrist. The court also noted the need for further consideration regarding the appointment of a litigation guardian, including the suitability of the Public Trustee or an alternative, and that parties would need an opportunity to address these issues. Accordingly, no orders were made at that time, and the matter was adjourned to allow for the submission of evidence and the potential appointment of a litigation guardian.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I think that it is significant that Ms McVicars has never attended before me and that there is no report from her psychiatrist. Whilst the evidence before me suggests that Ms McVicars has a number of issues, it has not been necessary for me to make findings where the application proceeds under r 2.1(c). Nonetheless, and despite the helpful assistance provided by Ms O’Brien,[11] I think there is a real risk that Ms McVicars will be disadvantaged in the conduct of these proceedings without a litigation guardian.[12] [11] See Slaveski v Victoria (2009) 25 VR 160.[12] Nguyen v The State of South Australia [2024] SASC 32, [56] (Kourakis CJ).Conclusion Whilst I am minded to grant the respondent’s application for a stay pending the appointment of a litigation guardian, I am concerned that evidence may be available from the psychiatrist treating Ms McVicars later this week. In the exercise of my discretion, I will give Ms McVicars another opportunity to lead evidence because there is at least some prospect that she may be able to displace the effect of r 2.1(c) if she can adduce evidence that she has legal capacity. Should the psychiatrist suggest that Ms McVicars has legal capacity, the respondent must also be given an opportunity to cross-examine the psychiatrist before I contemplate making orders regarding a stay. The respondent proposed that the Public Trustee act as litigation guardian, and Ms McVicars has suggested an alternative. Ms McVicars has been critical of the Public Trustee in the past and the Public Advocate may need to be considered. No consents have been filed. Should a consent be filed, I would need to consider who should be appointed. The parties must be given an opportunity to address these issues as well. There is also the prospect of a negotiated resolution and, whilst those discussions should continue without delay, on my present findings they cannot be concluded in a legally binding way without a litigation guardian. Accordingly, I will make no orders today and adjourn this matter for a short period pending evidence from the parties about Ms McVicars’ present condition and the appointment of a suitable person who is willing to act as Ms McVicars’ litigation guardian.

Ratio Decidendi

Legal Principle Established

Whilst the applicant was given an opportunity to file evidence, no proof to the contrary was offered. An administration order under the Guardianship and Administration Act 1993 (SA) is made pursuant to s 35, which provides:35—Administration orders (1) If the Tribunal is satisfied, on an application made under this Division— (a) that the person the subject of the application has a mental incapacity; and(b) that an order under this section should be made in respect of the person, the Tribunal may, by order, appoint an administrator, or administrators, of— (c) a specified part of the person's estate (a limited administration order); or (d) if satisfied that an order under paragraph (c) would not be appropriate, the whole of the person's estate (a full administration order).(2) Any of the following may be appointed as an administrator under this section: (a) the Public Trustee; (b) a trustee company; (c) any natural person who the Tribunal considers suitable to act as administrator of the person's estate. (3) The Public Trustee may only be appointed as a sole administrator under this section. (4) An administration order— (a) may be subject to such conditions or limitations (including a limitation as to the duration of the order) as the Tribunal thinks fit and specifies in the order; and (b) may confer such further powers (beyond those conferred by this Act) on the administrator as the Tribunal thinks necessary or desirable for the proper administration of the estate and specifies in the order. An administration order under s 35 may only be made if the Tribunal is satisfied that the person the subject of the application has a “mental incapacity” and that an administration order should be made in respect of the person. By s 3 of the Guardianship and Administration Act 1993 (SA), a “mental incapacity” means:… the inability of a person to look after his or her own health, safety or welfare or to manage his or her own affairs, as a result of—(a) any damage to, or any illness, disorder, imperfect or delayed development, impairment or deterioration of, the brain or mind; or (b) any physical illness or condition that renders the person unable to communicate his or her intentions or wishes in any manner whatsoever; In the administration of a person’s estate under s 35, the administrator must, pursuant to s 5 of the Guardianship and Administration Act 1993 (SA), observe the following principles:5—Principles to be observed Where a guardian, an administrator, the Public Advocate, the Tribunal or any court or other person, body or authority makes any decision or order in relation to a person or a person's estate pursuant to this Act or pursuant to powers conferred by or under this Act— (a) consideration (and this will be the paramount consideration) must be given to what would, in the opinion of the decision maker, be the wishes of the person in the matter if he or she were not mentally incapacitated, but only so far as there is reasonably ascertainable evidence on which to base such an opinion; and (b) the present wishes of the person should, unless it is not possible or reasonably practicable to do so, be sought in respect of the matter and consideration must be given to those wishes; and (c) consideration must, in the case of the making or affirming of a guardianship or administration order, be given to the adequacy of existing informal arrangements for the care of the person or the management of his or her financial affairs and to the desirability of not disturbing those arrangements; and (d) the decision or order made must be the one that is the least restrictive of the person’s rights and personal autonomy as is consistent with his or her proper care and protection.