Trezise v South Australian Civil and Administrative Tribunal - [2024] SASCA 100

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
TREZISE v SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
[2024] SASCA 100
Decision of the Honourable President Livesey
13 August 2024
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO PREVENT ABUSE OF PROCESS
The Registrar referred this matter to the Court of Appeal pursuant to r 13.3(1), seeking a direction as to whether the notice and grounds of appeal in this matter should be rejected for filing pursuant to r 32.3(1) of the Uniform Civil Rules 2020 (SA).
The proposed appeal concerns an order made by the South Australian Civil and Administrative Tribunal affirming on internal review an order by which the proposed appellant was rendered subject to a Level 2 Community Treatment Order pursuant to s 16 of the Mental Health Act 2009 (SA).
Held: directing the Registrar to reject the appellant’s notice and grounds of appeal lodged for filing pursuant to r 32.3(1)(c) of the Uniform Civil Rules 2020 (SA):
1.The purpose of rr 13.3(1) and 32.3(1) of the present rules is to ensure that the resources of the Court are not wasted on pointless and misconceived litigation, and that a respondent should not be put to unnecessary time, expense and stress.
2.No appeal lies from an administrative direction of this kind.
3.The appeal grounds occupy nearly 70 paragraphs. They are expressed in a narrative form, without identifying any particular error of fact or law made by the Tribunal. There is a high likelihood that the appeal and associated grounds will be struck out. There is no prospect that leave to appeal would be granted. As presently framed, the appeal is wholly without merit.
4.It is a matter for debate whether this document is properly to be regarded as frivolous or vexatious or scandalous or an abuse of process. In some respects, each of these categories could be applied to particular grounds of appeal, as the appellant’s orders demonstrate. For present purposes, it is sufficient to view the notice and grounds as an abuse of process.

Mental Health Act 2009 (SA) ss 5A, 16; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 70, 71, 72; Supreme Court Act 1935 (SA) s 50; Uniform Civil Rules 2020 (SA) rr 2.1, 13.3(1), 13.3(2)(a), 32.3(1), referred to.
Atkins v Australian Broadcasting Corporation [2024] SASCA 96; Keane v Woolworths Group Ltd (No 3) [2024] SASCA 87; McDonald v State of South Australia [2013] SASC 31; Martincic v Ethnic Broadcasters Inc [2024] SASCA 33; Sambastian v Police [2024] SASCA 79; Shmandiy v Police (No 2) [2024] SASCA 90; Staats v United States of America (1992) 66 ALJR 793; Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99, considered.

TREZISE v SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
[2024] SASCA 100
Court of Appeal – Civil
LIVESEY P:
Introduction

On 8 August 2024, the Acting Deputy Registrar (the Registrar) referred this matter to the Court of Appeal pursuant to r 13.3(1) seeking a direction as to whether the notice and grounds of appeal in this matter should be rejected for filing pursuant to r 32.3(1) of the Uniform Civil Rules 2020 (SA).[1]
[1] Pursuant to r 2.1 of the Uniform Civil Rules 2020 (SA), the Registrar of the Court includes a person to whom a function of the Registrar has been delegated, as has occurred here.
The Registrar raised for consideration whether the document should be rejected for filing because it is frivolous, vexatious, scandalous or an abuse of the process of the Court. The Registrar also expressed the concern that the prospective appellant, Mr Trezise (the appellant), may be required to pay a filing fee in circumstances where there was a high probability that the appeal would be struck out or dismissed.
For the following reasons, I direct the Registrar to reject the appellant’s notice and grounds of appeal.
The Registrar’s request to the Court
Pursuant to r 13.3(1), the Registrar may refer to the Court any question arising in the course of performing an administrative function:
13.3—Registrar may seek directions
(1)The Registrar may refer to the Court any question arising in the course of the performance of an administrative function.
(2)     The Court may on such referral—
(a)     give such directions as it thinks fit; or
(b)     assume control of the matter.
In this instance, the Registrar formed the opinion that the notice and grounds of appeal may meet the criteria for rejection under r 32.3(1)(c):
32.3—Rejection of document for filing
(1)     The Registrar may reject a document lodged for filing if—
(a)     it does not substantially comply with the requirements contained under rule 31.2 or in rule 31.3;
(b)     it otherwise does not substantially comply with these Rules;
(c)     it is frivolous, vexatious, scandalous or an abuse of the process of the Court;
(d) the person lodging it has been declared a vexatious litigant under section 39 of the Supreme Court Act 1935, if filed it would institute a proceeding within the meaning of that section and leave has not been obtained to do so;
(e)     the Court directs the Registrar not to accept it; or
(f)     the Court directed the Registrar not to accept any document from the person lodging it without the prior leave of the Court and such leave has not been obtained.
It is well recognised that when accepting or rejecting a document lodged for filing the Registrar is acting in an administrative capacity. When giving a direction to the Registrar the Court acts in aid of an administrative function of the Registrar and of the Court. No appeal lies from a direction of that kind.[2] In connection with a somewhat similar, precursor provision, it was recognised that its purpose was to ensure that the resources of the Court were not wasted on pointless and misconceived litigation, and that a respondent should not be put to unnecessary time, expense and stress.[3] These same considerations are relevant to rr 13.3(1) and 32.3(1) of the present rules.
[2] McDonald v State of South Australia [2013] SASC 31, [7] (Sulan J), and the case there cited. See also s 50 of the Supreme Court Act 1935 (SA).
[3] Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99, [3] (Gray J), referring to Staats v United States of America (1992) 66 ALJR 793.
Whilst any litigant has the right to self-representation, and it is necessary for the Court to assist that litigant to an extent, it is necessary to preserve the limited resources of the Court against having to adjudicate on matters that are without legal merit. The Court of Appeal has had regard to these considerations when notices and grounds of appeal have been struck out,[4] when unmeritorious applications for leave to appeal have been dismissed,[5] and where unmeritorious interlocutory applications have been made, particularly where they are not made in support of an appeal.[6]
[4]     See, for example, Martincic v Ethnic Broadcasters Inc [2024] SASCA 33.
[5]     Sambastian v Police [2024] SASCA 79, Shmandiy v Police (No 2) [2024] SASCA 90; Atkins v Australian Broadcasting Corporation [2024] SASCA 96.
[6]     Keane v Woolworths Group Ltd (No 3) [2024] SASCA 87.
A referral by the Registrar under r 13.3(1) simply represents an earlier stage at which it may be appropriate to act to ensure that the limited resources of the Court are not wasted. In addition, and as the Registrar recognised in this case, there is an unfairness to a litigant if filing is permitted and it is highly likely that the appeal documents, if not the appeal itself, will be struck out or dismissed. That unfairness is only underscored where the litigant is required to pay a filing fee.
The decision of the Tribunal
The appeal purports to be brought pursuant to ss 71 and 72 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (the SACAT Act) against an order made in the South Australian Civil and Administrative Tribunal by a Senior Member and a Psychiatrist Member (the Tribunal). On 15 July 2024, the Tribunal granted leave to the appellant to apply for internal review pursuant to s 70 of the SACAT Act but affirmed the decision under review.
That decision concerned an order made on 13 December 2023 by which the Tribunal imposed a Level 2 Community Treatment Order over the appellant pursuant to s 16 of the Mental Health Act 2009 (SA) (the Mental Health Act). The Tribunal’s order was made following a full hearing in which it heard psychiatric evidence as well as evidence from the appellant. Section 16(1) of the Mental Health Act provides:
16—Level 2 community treatment orders
(1)     If the Tribunal is satisfied that—
(a)     a person has a mental illness; and
(b)     because of the mental illness, the person requires treatment for the person's own protection from harm (whether physical or mental, and including harm involved in the continuation or deterioration of the person's condition) or for the protection of others from harm; and
(c)     the person has impaired decision making capacity relating to appropriate treatment of the person’s mental illness; and
(d)     there is no less restrictive means than a community treatment order of ensuring appropriate treatment of the person’s illness,
the Tribunal may make an order for the treatment of the person (a level 2 community treatment order).
(2)In considering whether there is no less restrictive means than a community treatment order of ensuring appropriate treatment of the person's illness, consideration must be given, amongst other things, to the prospects of the person receiving all treatment of the illness necessary for the protection of the person and others on a voluntary basis.
In connection with the internal review hearing, the Tribunal heard evidence from the appellant’s treating psychiatrist, and from the appellant. The Tribunal had regard to s 5A of the Mental Health Act and reviewed the findings made by the earlier Tribunal. It is not necessary to go into detail. The two primary issues concerned whether the appellant had impaired decision-making capacity and whether there was no less restrictive means than a Community Treatment Order of ensuring his appropriate treatment.
At the heart of the dispute sat the appellant’s strongly held view that though he has a mental illness, which is of a psychotic nature requiring antipsychotic medication, it was not the schizophrenia which had been diagnosed. Although the appellant accepted that if he did not take his medication he may relapse and his symptoms may re-emerge, he contended that he should be permitted to take medication on a voluntary basis. The appellant told the Tribunal that he believed he suffered from Post Traumatic Stress Disorder rather than schizophrenia, though he did not wish to disengage from treatment.
The Tribunal gave very extensive and careful reasons for its decision that the appellant’s decision-making capacity was impaired and that there was no less restrictive means than a Level 2 Community Treatment Order to ensure his appropriate treatment. In so doing the Tribunal noted that the appellant’s most recent period of voluntary treatment was in 2019. During that period, the appellant ceased taking medication and his relapsed symptoms required that he be hospitalised.
The Tribunal found that the appellant’s medical history did not suggest that a voluntary regime for taking medication was likely to be successful, and it accepted the evidence from the appellant’s treating doctor that, though there had been positive results and improvement, it was premature to go to a voluntary treatment regime. Accordingly, the Tribunal made the orders earlier outlined.
The notice and grounds of appeal
It would appear that the appellant has not had the assistance of legal representation when formulating his grounds of appeal. The notice spans 13 pages and the grounds occupy nearly 70 paragraphs. They are expressed in a narrative form, without identifying any particular error of fact or law made by the Tribunal.
Although leave to appeal is sought, no grounds in support of leave are offered. The appellant has simply repeated the orders he seeks more generally. The appellant seeks the following orders:
1.To Set Aside the Level 2 Community Treatment Order and Revoke the Level 2 Community Treatment Order.
2.For the Supreme Court to draft Orders, as to what Section 19 of the Mental Health Act 2009 (SA), means. Whereby I am asking the Supreme Court to “Back Up”, what the Tribunal Member stated Section 19 of the Mental Health Act 2009 (SA), didn’t mean, in December 2022. While enlightening the World on what Section 19 of the Mental Health Act 2009 (SA) actually does mean.
3.A determination of whether Sections 13B and 14 of the Criminal Law Consolidation Act 1935 (SA), is “Good Law”, or “Sound Law”, as annotated.
4.A determination of whether Section 5A of the Mental Health Act 2009 (SA), means that a Mental Health Client’s “Personal Affairs”, and decisions related to their residential and accommodation arrangements such as where they live, can or cannot be “Controlled”, by a “Treating Team”, or “Treating Psychiatrist”. If the “Client is found to have ‘Impaired Decision Making Capacity, or Fluctuating Decision-Making Capacity.” This is in light of Section 8 (5) (h) (i) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
5.A determination that Practice Direction 21 of the South Australian Civil and Administrative Tribunal must be amended in its inconsistency with Section 4 (2) (a) (ii) of the Surveillance Devices Act 2016 (SA). Whereby Practice Direction 21 of the SACAT Practice Directions, is inconsistent with that part of the Surveillance Devices Act 2016 (SA).
6.A determination of the Age of the Senior Tribunal Member and Psychiatrist Member who drafted the Orders of the Tribunal. I seek this determination, because I have grounds to submit that she is in fact over the age limit of a Judicial Officer in the Commonwealth of Australia. I submit that this Tribunal Member is above the compulsory retirement age of judicial officers in the Commonwealth of Australia and that she ought to be compulsory retired from judicial office.
7.Therefore, I seek a determination of the Orders of the Tribunal be made Invalid as the Member publishing the Orders of the Tribunal, is above the age of compulsory retirement. Therefore seeking to invalidate any orders she may have published since she attained the compulsory retirement age of 70.
As can be seen, apart from seeking to set aside the Level 2 Community Treatment Order, the appellant has sought a number of opinions from the Supreme Court, most of which appear to have nothing to do with the decision made by the Tribunal.
There is a high likelihood that the appeal and associated grounds will be struck out. There is no prospect that leave to appeal would be granted. As presently framed, the appeal is wholly without merit.
It is a matter for debate whether this appeal document is properly to be regarded as frivolous or vexatious or scandalous or an abuse of process. In some respects, each of these categories could be applied to particular grounds of appeal, as the appellant’s orders tend to demonstrate. For present purposes, it is sufficient to view the notice and grounds as an abuse of process. The appellant seeks to invoke the processes of the appeal court without demonstrating material error and, in addition, he proposes to ask the Court to express opinions on matters which are both hypothetical and not relevant to the proper determination of his legal rights.
Conclusion
Pursuant to r 13.3(2)(a), I direct the Registrar to reject the appellant’s notice and grounds of appeal lodged for filing.