McVicars v South Australian Housing Trust (No 3)
[2025] SASCA 75
•2 July 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MCVICARS v SOUTH AUSTRALIAN HOUSING TRUST (No 3)
[2025] SASCA 75
Decision of the Honourable Acting Chief Justice Livesey (ex tempore)
2 July 2025
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS
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 pending the appointment of a litigation guardian for the applicant.
The substantive appeal concerns the decision of the Deputy President of the South Australian Civil and Administrative Tribunal who, on internal review, upheld the decision of the Tribunal to terminate the applicant’s tenancy with the respondent. After the dismissal of an urgent stay application pending the appeal by a judge of this Court, the applicant vacated the property.
At an earlier hearing, this Court considered there was merit in the respondent’s application, but deferred making orders pending the provision of further evidence from the parties.
Held, allowing the application and ordering a stay pending the appointment of a litigation guardian:
1.The applicant has a significant legal incapacity such that the appointment of a litigation guardian is necessary.
2.The appointment of a guardian is deferred pending the provision of further evidence from the parties.
3.The appeal proceedings are stayed pending the appointment of a litigation guardian.
Criminal Law Consolidation Act 1935 (SA) Pt 8A; Uniform Civil Rules 2020 (SA) rr 25.6(1), 25.6(4), referred to.
Collier v Hicks (1831) 2 B & Ad 663; Damjanovic v Maley (2002) 55 NSWLR 149; F v Minister for Education and Child Development & Anor [2017] SASCFC 71; Galladin Pty Ltd v Aimnorth Pty Ltd (1993) 60 SASR 145; Giancaspro v SHRM (Australia) Pty Ltd [2005] SASC 340; McKenzie v McKenzie (1970) 3 All ER 1034; McVicars v SAHT [2025] SASCA 52; Szumylo v Ixia Pty Ltd [2001] SASC 262, considered.
MCVICARS v SOUTH AUSTRALIAN HOUSING TRUST (No 3)
[2025] SASCA 75
Court of Appeal: Civil
LIVESEY ACJ (ex tempore):
Introduction
This is an adjourned hearing of the respondent’s application seeking a stay pending the appointment of a litigation guardian for the applicant, Ms McVicars. At an earlier hearing I decided that though there was merit in the respondent’s application, no order should be made pending the prospect of further evidence from the parties.
In particular, I was told that Ms McVicars wanted to lead evidence from her treating psychiatrist to demonstrate that she was not a person under a legal incapacity. I was also told that, in the alternative, she wanted to lead evidence regarding an appropriate guardian other than the Public Trustee who had been proposed by the respondent.
For the following reasons I am now satisfied that order should be made in accordance with the respondent’s application. Accordingly, I will order a stay of proceedings pending the appointment of a litigation guardian for Ms McVicars.
Preliminary point – a McKenzie friend
As I recorded in my earlier reasons,[1] Ms McVicars has not been legally represented, but she has been assisted by Ms Louise O’Brien. The respondent has consented to Ms O’Brien doing more than might usually be permitted of a “McKenzie friend” on a hearing-by-hearing basis.
[1] McVicars v SAHT [2025] SASCA 52, [4].
In evidence placed before me today in an affidavit from the solicitor for the respondent, Mr Pager, made on 1 July 2025, there is now reason to question whether it is appropriate for Ms O’Brien to continue to assist Ms McVicars. One of the issues is that Ms O’Brien and Ms Michelle Taylor are the donees of an enduring power of attorney which was executed by Ms McVicars on 9 June 2025. As will be seen, there is a serious question as to whether Ms McVicars had the requisite capacity to enter into that arrangement at that time. Perhaps more importantly, in handwritten correspondence sent to the treating psychiatrist, Dr Jacqueline Condon, Ms McVicars has made it clear that she no longer wants “anything to do with” Ms O’Brien.
There is no right to representation by a non-lawyer.[2] However, the Court may, if it thinks fit, “give leave to a self-represented litigant to be assisted in the presentation of their case at a hearing by a person approved by the Court” and, unless the Court otherwise orders, that leave “does not permit the person assisting to address the Court”.[3]
[2] Uniform Civil Rules 2020 (SA), r 25.6(1).
[3] Uniform Civil Rules 2020 (SA), r 25.6(4).
That person, a McKenzie friend, only has a “right to advise and assist”, and not a right of audience.[4] A McKenzie friend “may take notes, may quietly make suggestions, and give advice”, but cannot take part in proceedings as an advocate.[5] A McKenzie friend is generally not permitted to address the Court.[6]
[4] Galladin Pty Ltd v Aimnorth Pty Ltd (1993) 60 SASR 145, 147 (Perry J).
[5] Collier v Hicks (1831) 2 B & Ad 663, 669 (Tenderden LCJ), approved in McKenzie v McKenzie (1970) 3 All ER 1034.
[6] Szumylo v Ixia Pty Ltd [2001] SASC 262, [20] (Wicks J).
In summary, the purpose of a McKenzie friend is to assist a litigant when the litigant is appearing at the bar table. A McKenzie friend is not to speak for the litigant but to assist the litigant with what the litigant should say to the Court.
Separately, the Court has the power to allow a person to appear as a lay advocate on behalf of a party, and that person may address the Court.[7] In exercising that discretion, the Court takes into account a number of factors. Those factors are discussed in the authorities.[8] The discretion to permit a lay advocate to appear for a party should, however, “only be exercised in exceptional circumstances in which the administration of justice requires dispensation to be given”.[9]
[7] See Giancaspro v SHRM (Australia) Pty Ltd [2005] SASC 340, [12] (Bleby J, with whom Doyle CJ agreed), [75]-[80] (Gray J); Damjanovic v Maley (2002) 55 NSWLR 149; Galladin Pty Ltd v Aimnorth Pty Ltd (1993) 60 SASR 145.
[8] Giancaspro v SHRM (Australia) Pty Ltd [2005] SASC 340, [13]-[18] (Bleby J, with whom Doyle CJ agreed), citing Damjanovic v Maley (2002) 55 NSWLR 149.
[9] F v Minister for Education and Child Development & Anor [2017] SASCFC 71, [76] (Blue J, with whom Vanstone and Peek JJ agreed).
Although I was prepared to allow Ms O’Brien to ask some questions of Dr Condon, I was not satisfied that it would be appropriate to allow Ms O’Brien to continue to appear as she has to this point. Not only does there appear to have been a break-down in the relationship with Ms O’Brien, but I have not heard directly from Ms McVicars.
I have for some time been concerned about the absence of Ms McVicars from the Court. I made it clear on the last occasion that I expected Ms McVicars to attend today. Correspondence was sent to Ms O’Brien by my Chambers earlier today, reiterating that Ms McVicars was expected to attend Court today.
Ms McVicars has not attended Court today. I do not have a satisfactory explanation for her non-appearance. Whilst I have been given an email which Ms O’Brien says is an email from Ms McVicars, it is signed by a woman called Natalie Ruth. Whilst it speaks about ill health and suggests that Ms O’Brien and someone called “Michael” (or perhaps Michelle) should “speak for me”. I am not satisfied that this email provides a satisfactory explanation for the failure of Ms McVicars to attend Court today.
Though it would clearly be preferable to have Ms McVicars in Court today, I determined that it was appropriate to continue with the evidence of Dr Condon and the respondent’s application. I will give Ms McVicars liberty to apply.
Psychiatric evidence
Though I had hoped that the psychiatric evidence would be available soon after my earlier ruling, it has now become available following an appointment Ms McVicars attended with Dr Condon on 26 June 2025. Before that appointment, Dr Condon had access to a volume of material relating to Ms McVicars.
Unfortunately, the appointment on 26 June 2026 was cut short. The appointment was cut short because Ms McVicars attended appearing to be very angry and accusing Dr Condon of various things. She wanted Dr Condon to sign a letter which said that Ms McVicars did not want to have anything to do with Ms O’Brien. When Dr Condon said that she would not sign that letter, Ms McVicars told Dr Condon that she could not trust her. Ms McVicars had already told Dr Condon that she was, as she put it, “sick of this fuckin’ shit” as she threw her phone across the table at Dr Condon. Soon after, Dr Condon terminated the appointment.
It is not necessary to go through all of the history to which Dr Condon referred in her report. In overview, Ms McVicars is a 31-year-old, single, unemployed woman who has an intellectual disability and borderline personality disorder. She apparently acquired a brain injury as a result of a significant hypoxic episode at birth. In the view of Dr Condon, Ms McVicars does not have a mental illness. Although borderline personality disorder is referred to in DSM-5-TR, Dr Condon does not regard that as a mental illness which is capable of treatment by medication.
Ms McVicars has had a difficult relationship with her family. She has a history of assaults and disputes with her neighbours. She has had a number of matters in the criminal courts which have generally been dealt with under Part 8A of the Criminal Law Consolidation Act 1935 (SA) by reason of her intellectual disability. She has been placed under the Forensic Mental Health Supervision Stream.
Dr Condon first started seeing Ms McVicars in February this year. In her report dated 27 June 2025, Dr Condon expressed the following opinion:
In my opinion, Ms McVicars has a moderate to severe intellectual disability and associated deficits in adaptive functioning, which significantly impair her ability to manage her own affairs independently. Her vulnerability to misinterpreting interpersonal interactions and events, coupled with her limited express of communication skills, undermine [sic] her ability to advocate for herself and resolve even minor problems, let alone litigate more complex matters.
Dr Condon expressed the view that Ms McVicars has a significantly limited ability to make informed, rational decisions and manage her affairs in an autonomous and consistent manner. According to Dr Condon:
Given Ms McVicars’ persistent history of conflict with support providers, repeated assaults on others, and her inability to consistently engage or benefit from available support services, I recommend that she be placed under a full Guardianship Order. The guardian would be able to act in her best interests and ensure she receives appropriate and sustained support through the NDIS. It is further recommended that the appointed guardian refer Ms McVicars to the Exceptional Needs Unit, which specialises in managing complex cases similar to hers.
Dr Condon does not believe that Ms McVicars has the legal capacity to make informed decisions regarding her own welfare. Her moderate intellectual disability, IQ of 51 and diagnoses of ADHD and borderline personality disorder, together with her forensic history, indicate she is a person with a significant legal incapacity.
Dr Condon told me about a pattern of deceitfulness, impulsivity and a failure to plan, together with manipulative behaviour and inconsistency in accounts. Far from suggesting that a litigation guardian should not be appointed, this further evidence demonstrates that an appointment is necessary.
The appropriate litigation guardian
I have a consent from the Public Trustee to act as litigation guardian. I also have a curriculum vitae from Loki Maelorin. However, I have no information about this person and Ms McVicars is not in Court today.
In the circumstances, I will defer the appointment of a guardian.
Conclusion
The appeal in this matter is still listed for hearing on 8 August 2025.
I am now satisfied that there is no impediment to the appointment of a litigation guardian and, accordingly, I will make orders in terms of the respondent’s application. Once a litigation guardian is appointed, it will be a matter for the litigation guardian to apply to the Court should the litigation guardian determine that the appeal should proceed.
Accordingly, the orders of the Court will be:
1.These appeal proceedings are stayed pending the appointment of a litigation guardian.
2.The appeal listed for hearing on 8 August 2025 is vacated.
3.The matter is adjourned to Friday, 4 July 2025, at not before 11.30 am to consider the appointment of a litigation guardian.
4.The parties have liberty to apply.
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