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 v Brutton & Co [2003] 3 All ER 162; Matute v Cramer [2023] SASCA 78; McKenzie v McKenzie [1971] P 33; Nguyen v The State of South Australia [2024] SASC 32; Nguyen v State of South Australia [2024] SASCA 105; Re Cumming (1852) 42 ER 660; Slaveski v Victoria (2009) 25 VR 160, considered.

MCVICARS v SOUTH AUSTRALIAN HOUSING TRUST
[2025] SASCA 52
Court of Appeal – Civil - Application:
LIVESEY P (ex tempore):
Introduction

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 McVicar’s tenancy with the respondent. She vacated the property after a judge of this Court dismissed an urgent application for a stay pending the appeal.[1] I have since been managing the appeal at callovers.
[1] Ex tempore reasons of Bleby JA, delivered 31 March 2025.
Throughout these proceedings, Ms McVicars has not been legally represented. She has been assisted by Ms Louise O’Brien, who has done rather more than might usually be permitted of a “McKenzie friend”.[2] This has occurred without objection from the respondent, albeit on a hearing-by-hearing basis.
[2] McKenzie v McKenzie [1971] P 33.
On 11 April 2025, this matter was set down for hearing in the Court of Appeal at 10.15 am on Friday, 8 August 2025. Outlines were ordered to be exchanged and filed on 11 July and 18 July 2025.
For the reasons that follow, whilst there is merit in the respondent’s application for a stay pending the appointment of a litigation guardian, no order should yet be made pending the prospect of further evidence from the parties.
The respondent’s application
The respondent’s application for a stay of proceedings is made under r 23.11(2) of the Uniform Civil Rules 2020 (SA), which provides:
(2) On becoming aware that a party is a person under a legal incapacity, the Court may make such orders concerning steps taken to date in the proceeding as it thinks fit on such conditions as it thinks fit, including (without limitation) orders to—
(a) set aside or vary any step taken in the proceeding; or
(b) set aside or vary any order made or judgment granted in the proceeding.
Before considering the exercise of the power to grant a stay of proceedings under r 23.11(2) of the Uniform Civil Rules 2020 (SA), I must first be persuaded by the respondent that Ms McVicars is a “person under a legal incapacity” as defined in r 2.1 of the Uniform Civil Rules 2020 (SA).[3]
[3] Cf Manning v Russell (2015) 123 SASR 135, [20] (Nicholson J), where “a real apprehension” that a person may be a “person under a disability” as defined in r 4 of the Supreme Court Civil Rules 2006 (SA) was sufficient to order an inquiry into whether or not the person was under a disability.
Person under a legal incapacity
The principles concerning the determination of person’s legal capacity are “well settled”.[4] It is presumed that a person of full age has legal capacity, and the party asserting otherwise bears the burden of proving that the person is under a legal incapacity.[5]
[4] Nguyen v State of South Australia [2024] SASCA 105, [12] (Doyle and Bleby JJA), referring to Manning v Russell (2015) 123 SASR 135, [15]-[20] (Nicholson J), Dalle-Molle v Manos (2004) 88 SASR 193, [12], [20]-[30] (Debelle J), and Slaveski v Victoria (2009) 25 VR 160, [24]-[34] (Kyrou J).
[5] Dalle-Molle v Manos (2004) 88 SASR 193, [17] (Debelle J), citing Borthwick v Carruthers (1787) 99 ER 1300, Re Cumming (1852) 42 ER 660, 668 and Masterman-Lister v Brutton & Co [2003] 3 All ER 162, [17].
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), which provides:[6]
person under a legal incapacity means a person—
(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;
[6] See Manning v Russell (2015) 123 SASR 135, [18] (Nicholson J).
The respondent relied on r 2.1(c) and contended that Ms McVicars is under a legal incapacity because she is a person whose affairs are administered under a law for the protection of persons suffering from mental or physical disabilities. The respondent acknowledged that there is no authority on this limb of the rule. Alternatively, the respondent relied on r 2.1(b) and contended that Ms McVicars is a person “who, because of a mental or physical disability or illness, is not capable of managing [her] participation in a proceeding”.[7]
[7] See Matute v Cramer [2023] SASCA 78, [25]-[27] (Livesey ACJ and Bleby JA).
In support of its primary contention, the respondent relied upon a certificate issued by the Public Trustee dated 28 November 2023, which provided that the Public Trustee is the administrator of the estate of Ms McVicars pursuant to the provisions of the Guardianship and Administration Act 1993 (SA).[8] The certificate is given pursuant to s 53 of the Public Trustee Act 1995 (SA):
[8] Exhibit CGP-2.
53—Certificate by Public Trustee of appointment to act
A certificate executed by the Public Trustee certifying that the Public Trustee has been appointed or otherwise empowered to act in a specified capacity will be accepted in any proceedings, in the absence of proof to the contrary, as proof of the matters so certified.
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.
An administration order 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 r 2.1(c) requires. 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).
It is not presently necessary to decide whether Ms McVicars is a person under a legal incapacity within the meaning of r 2.1(b).
Stay of proceedings
Having concluded that Ms McVicars is a person under a legal incapacity, I must consider whether to grant a stay of proceedings pending the appointment of a litigation guardian. In Matute v Cramer it was recognised that a balance is struck by the rules and practice of the Court:[9]
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.
[9] Matute v Cramer [2023] SASCA 78, [25] (Livesey ACJ and Bleby JA).
The appointment of a litigation guardian is necessary to “facilitate the efficacious conduct of … proceedings”,[10] and proceedings should not usually be continued by a person under a legal incapacity without a litigation guardian.
[10] Nguyen v The State of South Australia [2024] SASC 32, [56] (Kourakis CJ).
The argument from Ms McVicars was that no stay should be ordered because it is merely a delaying tactic. It was suggested on the last occasion that the psychiatrist treating Ms McVicars would provide a report supportive of her capacity to continue these proceedings. That has not happened, and Ms McVicars is not here. There are a number of reasons for that.
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.