McVicars v South Australian Housing Trust (No 3)

This matter concerned an application by the South Australian Housing Trust (the respondent) for the appointment of a litigation guardian for Ms McVicars (the appellant) in appeal proceedings. The court was required to consider the capacity of Ms McVicars to conduct these proceedings given her diagnosed intellectual disability and borderline personality disorder, as evidenced by psychiatric reports.

The primary legal issue before the court was whether Ms McVicars possessed the requisite capacity to manage her own affairs and conduct litigation, and if not, whether the appointment of a litigation guardian was appropriate. This involved assessing the psychiatric evidence regarding her ability to make informed, rational decisions and to advocate for herself in complex legal matters, particularly in light of her history of conflict and difficulties engaging with support services.

Acting Livesey Ex Tempore CJ, having considered the psychiatric evidence of Dr Condon, concluded that Ms McVicars had a moderate to severe intellectual disability and associated deficits in adaptive functioning that significantly impaired her ability to manage her affairs independently. The court noted her vulnerability to misinterpreting interactions, limited communication skills, and inability to consistently engage with support. Consequently, the court found that there was no impediment to the appointment of a litigation guardian. The court ordered that the appeal proceedings be stayed pending the appointment of a litigation guardian, vacated the appeal listed for hearing, and adjourned the matter for the consideration of such an appointment.