• By way of his close relationship with the protected person, the applicant had standing;
• There was no utility in the proceedings. A contract for sale of the property had been executed, a stay application for sale had been dismissed in the Supreme Court, and matters raised in this application had already been canvassed in numerous previous proceedings. The delay in sale was eroding the estate.

Internal Review - Guardianship and Administration - Administration Orders - Standing

Administrative tribunals - Procedure - Utility of Proceedings

Guardianship and Administration Act 1993 ss 39, 64, 65, 68

South Australian Civil and Administrative Tribunal Act 2013 ss 56, 70, 73

Mr R Lawton, Crown Solicitor's Office, appeared for the respondent

Mr A Bickle, Legal Services Commission, appeared for the protected person

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. Some of the parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

Permission to proceed with internal review refused

Made under the Guardianship and Administration Act 1993 (SA) s 64(c); South Australian Civil and Administrative Tribunal Act 2023 s 70(1a).

Summary of orders made on a preliminary hearing to determine the questions of standing and permission to proceed

1. An administrator appointed under the Guardianship and Administration Act 1993 ('G&A Act') may sell any property of the person whose estate they administer, but in respect of real property, the administrator must first seek the approval of the Tribunal: G&A Act s 39(2)(a), s 39(4).
2. The Tribunal made a decision on 4 March 2025 approving the Public Trustee as administrator for FAV, to sell FAV's house. The orders were:
   1. After considering all the submissions, noting the objections of FAV, but also noting all the adverse consequences for FAV that will accrue should the property not be sold, consequences that would be inconsistent with the proper care and protection of the estate, the Tribunal approves the administrator of the estate of FAV selling his property situated at Waterfall Gully.
   2. The property is to be sold by public auction conducted by a Licensed Land Agent appointed for such purpose in accordance with the usual auction process, including advertising. If the property is not considered appropriate to be sold at auction, or if the property is not sold at the auction reserve price, the administrator may then sell the property by private treaty in order to achieve the best sale price and in order to minimise any associated costs to the estate.
   3. For the purpose of the order, the sale is deemed to occur on the signing of the contract for sale.
   4. The sale be for a price no less than $950,000.00.
   5. Order valid until: Friday 20 February 2026.
3. Mr Zaharuiko caused an application for internal review in respect of this decision to be filed pursuant to s 70 of the South Australian Civil and Administrative Tribunal Act 2013 ('SACAT Act'). Mr Zaharuiko is a friend of FAV.
4. It was not clear on the face of the application whether Mr Zaharuiko purported to apply on behalf of FAV, or in his own right.
5. A preliminary hearing was scheduled to allow this matter to be clarified and, if Mr Zaharuiko satisfied the Tribunal that he was acting on FAV's behalf, or that he had standing in his own right to bring the application, whether permission to proceed should be granted.
6. Sections 65 and 68 of the G&A Act and s 56 of the SACAT Act together govern the issue of a protected person's entitlement to representation in proceedings in the Tribunal under the G&A Act.
7. In the meantime, Mr Zaharuiko wrote to the Tribunal requesting an urgent hearing to consider the stay of the order. Sections 70(7) and 73 of the SACAT Act provide for such an order to be made. The Public Trustee was on notice and indicated that it would oppose such an order. I declined to schedule an urgent hearing for consideration of a stay in advance of the preliminary hearing.
8. FAV's daughter applied to the Supreme Court for a stay of the order approving sale: SACAT Act, s 73. Mr Lawton appeared for the Public Trustee on the application for a stay in the Supreme Court and opposed it. The application was heard and dismissed: CIV-25-004585.
9. The preliminary hearing of the internal review was attended by Mr Zaharuiko, who contended that FAV instructed him to bring the application for review and had capacity to do so. The hearing was also attended by Mr Bickle, who was appointed by the Tribunal in the original proceedings and in these proceedings to represent FAV under the scheme for the representation of persons established under s 65 of the G&A Act. Mr Bickle's position was that Mr Zaharuiko did not represent FAV. However, Mr Bickle supported Mr Zaharuiko being granted standing to bring the application for internal review on the basis of his close relationship with FAV. Mr Lawton of the Crown Solicitor's office attended on behalf of the Public Trustee.
10. Mr Lawton submitted that Mr Zaharuiko did not have standing but that in any event, the application for internal review was rendered moot by the fact that the property was now the subject of a contract for sale. Settlement is scheduled for 25 June 2025, but the Tribunal's orders dated 4 March 2025 provide that "sale" is deemed to have occurred on the date of the execution of the contract, which was sometime last week. The Public Trustee informed FAV's guardian of the sale (in accordance with s 75 of the G&A Act) but Mr Zaharuiko learned of it only on the day of this hearing.
11. Without proceeding to finalise consideration of the issue of standing, Mr Zaharuiko was given the opportunity to make submissions on the issue of whether the internal review had utility. He submitted that the sale would not have proceeded if the Tribunal Member had not made various errors in the decision authorising the sale. He was not able to assist the Tribunal on the issue of whether the Tribunal had the power on this internal review to interfere with the sale.
12. FAV's daughter attended the hearing at this point and asked to be heard but I declined, on the basis that she was not a party to the internal review and sought to impugn the Supreme Court's decision on the stay, which is beyond the power of this Tribunal.
13. I am prepared, for the purposes of these orders, to determine that Mr Zaharuiko brought the application in his own name and that he has standing to do so on the basis of his relationship with FAV. It has not been necessary to determine whether FAV has capacity to understand the nature and effect of the proceedings or instruct his lawyer, Mr Bickle, but on the basis of the statements from the bar table made by Mr Bickle about his interactions with FAV, my own interactions with FAV in earlier proceedings when he was well enough to be brought to the Tribunal, and the expert evidence given in previous proceedings about FAV's capacity, I doubt that he does. However, it is not determinative of these orders in any event.
14. I am satisfied that there is no utility in these proceedings, and that leave to proceed (as required under s 70(1a) of the SACAT Act) should not be granted. In reaching that decision I have taken into account the fact that the property was approved for sale on 2 June 2023, and that decision was confirmed on internal review. FAV's daughter appealed to the Supreme Court. The appeal was dismissed. However, the order authorising sale had by then expired. That led to the second application being made by the Public Trustee and the resulting order allowing sale of the property now being subject to review. That was the subject of a stay application in the Supreme Court that was dismissed. The jurisdiction is a protective one. I am satisfied that delay in the sale of the property is eroding the estate because FAV is liable to pay higher monthly rates at the aged care facility until he pays a refundable accommodation deposit on a permanent bed at the facility. I have only proceeded to consider the extensive written submissions on the grounds of review so far as is necessary to satisfy me that the grounds advanced require collateral proceedings to occur, and/or are matters that have already been canvassed in related proceedings brought on FAV's behalf.

1. Mr Zaharuiko has standing to initiate the application for review.
2. Leave to proceed with the internal review is refused.
3. The application for review is dismissed.