Amelia (a pseudonym)

[2025] NSWCATGD 5

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Amelia (a pseudonym) [2025] NSWCATGD 5

Hearing dates:

16 April 2025

Date of orders:

23 April 2025

Decision date:

23 April 2025

Jurisdiction:

Guardianship Division

Before:

J D’Arcy, Senior Member (Legal)

Decision:

The application for the appointment of a financial manager for Amelia is dismissed because Jennifer does not have standing to bring the application. The Tribunal therefore has no jurisdiction to deal with this application.

The Tribunal makes the following directions about costs:

1. Any application for costs, together with submissions and evidence in support of the application, is to be lodged with the Registrar and provided to the other parties by 22 May 2025.

2. Any submissions and evidence in response to any such costs application are to be lodged with the Registrar and provided to the other parties by 4 June 2025.

3. Any submissions in reply are to be lodged with Registrar and provided to the other parties by 11 June 2025.

4. Submissions on an application for costs by each party are not to exceed four pages in length and must be presented in 12-point font or larger.

5. The Tribunal may dispense with the hearing and determine an application for costs on the basis of the written submissions. If the parties oppose this course of action they should make submissions on this issue when complying with the directions.

Catchwords:

GUARDIANSHIP – financial management application – whether applicant has standing to bring the application – whether applicant has a “genuine concern for the welfare of the person” – applicant found not to have a “genuine concern for the person”– the Tribunal has no jurisdiction to decide the application.

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), s 55(1)(b)

Guardianship Act 1987 (NSW), s 25I

Vexatious Proceedings Act 2008 (NSW), s 8(6)

Cases Cited:

ACJ [2007] NSWGT 15

Texts Cited:

Nil.

Category:

Principal judgment

Parties:

004: Financial Management Application

Amelia (the person)
Jennifer (applicant)
Laura (attorney)
NSW Trustee and Guardian

Representation:

D Lagopodis as Solicitor for Laura

File Number(s):

NCAT 2018/00390205

Publication restriction:

Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

Background

1. These Reasons for Decision concern an application for the appointment of the NSW Trustee and Guardian as Amelia’s financial manager. The applicant is Jennifer.

2. Amelia is 83 years old. She has four children, Laura, Elizabeth, Bethany and Christopher. Her partner, James, died on 22 September 2014. Jennifer is one of James’ three daughters.

3. Amelia lives in an aged care facility. She is reported to have been diagnosed with dementia. Jennifer is not aware of Amelia’s whereabouts.

4. On 31 August 2016, Amelia executed an enduring power of attorney appointing her daughter, Laura, as her attorney and Laura’s husband, Max, as her substitute attorney. The copy of the instrument lodged with the Tribunal shows that Laura accepted her appointment on 31 October 2016 and that Max has not accepted his appointment.

The hearing

5. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

6. Mr Danny Lagopodis, solicitor, was granted leave to represent Laura. Jennifer was unrepresented.

The background to the current application

7. On 19 December 2018, Jennifer lodged an application to review the enduring power of attorney. In an interlocutory hearing held on 13 March 2019 the Tribunal dismissed the application. The Tribunal found that the matters raised by Jennifer were misconceived because they were not relevant to the operation and effect of the enduring power of attorney, and they did not go to a claim of malfeasance, misfeasance or nonfeasance and thus were without substance. The application for costs was dismissed.

8. On 27 May 2019, Jennifer lodged a second application to review the enduring power of attorney. In these proceedings Amelia had separate representation and was excused from the proceedings. On 4 September 2019, the Tribunal found that Jennifer did not have standing to bring the application and so dismissed the application to review the enduring power of attorney. On 17 December 2019, the Tribunal made an order for costs against Jennifer.

9. On 19 December 2019, Jennifer made an application for miscellaneous matters, that is, to set aside the decision of 4 September 2019. On 23 December 2020 the Tribunal dismissed the application. On 6 May 2021, the Tribunal made an order for costs against Jennifer.

10. On 26 September 2021, Jennifer lodged a financial management application seeking the appointment of the NSW Trustee and Guardian as Amelia’s financial manager. On 10 November 2021, Jennifer sought to withdraw the application, and the Tribunal dismissed it.

11. On 19 August 2024, Jennifer lodged a fifth application to the Tribunal seeking the appointment of the NSW Trustee and Guardian as Amelia’s financial manager because she considered that the attorney had misrepresented and misused Amelia’s finances for her own benefit.

12. There are other ongoing legal proceedings between the parties. They commenced on 11 January 2018 when an interim apprehended domestic violence order was made protecting Amelia from Jennifer. District Court proceedings ensued concerning costs and an Involuntary Bankruptcy Notice was issued to Jennifer, with the amount to be paid by July 2023. Federal Court proceedings followed, and the ordered amount was eventually paid to Amelia.

13. More recently Jennifer has filed a Motion in the District Court seeking a review and setting aside all of the judgments amounting to the Local Court costs and District Court costs. The application has since been dismissed with costs.

Jennifer’s submission

14. Jennifer asserts that she has a special interest in the case and that her application is bona fide and reasonable. She has known Amelia since the age of five years and provided support to her father and Amelia during his long illness. She got on well with Amelia. She and her family were ostracised by Amelia immediately following her father’s death.

15. Jennifer relied on the written submission by the separate representative for Amelia in a previous hearing, in which the separate representative stated: “She ([Amelia]) told me that it was important to her that the children of her late partner and herself her own children benefit equally from her estate if anything happens to her.” Jennifer asserted that this statement clearly showed that she has standing.

16. Jennifer referred to special interest requirements to demonstrate standing, stating that special interest means that although the applicant’s right has not been infringed, his/her interest in the subject matter of the action is greater than other members of the public. An applicant must show he/she has been specially affected in comparison with the public at large and that he/she has been affected to a substantially greater degree or in a significant different manner. It is not necessary to show that the applicant is uniquely affected. However, Jennifer asserted that she has been uniquely affected by Laura’s misrepresentation of Amelia and hiding behind her name as a shield of protection to bring false, vexatious and unauthorised legal actions against her. When asked to provide the authority for this “special interest” test, Jennifer’s partner, Peter, quoted Law Access.

17. Jennifer contended that Laura has breached her fiduciary obligations as an attorney by placing Amelia in a position where she would have been personally liable for orders made by the Federal Court.

18. Jennifer stated that Amelia’s funds have been used to cover Laura’s legal costs, placing her financial position at risk. She has hidden behind Amelia’s name for seven years and has misrepresented Amelia “recklessly, falsely and vindictively”. She has abused her position as attorney and does not understand the responsibilities associated with her role. Jennifer asserted that the costs associated with the Federal Court proceedings may have been withdrawn from Amelia account by Laura in breach of her obligations as attorney.

19. Jennifer further asserted that the proceedings are not frivolous or vexatious or otherwise misconceived or lacking in substance but rather promote the welfare and interests of Amelia. Amelia is a vulnerable elderly person, and her attorney has taken advantage of her situation by initiating legal actions through a false and vexatious apprehended domestic violence order application and bankruptcy notice. The attorney is the vexatious litigant, and she is using her mother’s name to justify her actions.

20. Jennifer submitted that she has had to defend herself against these false and vexatious allegations for many years. She stated:

“I had no choice but to bring this application to NCAT as it is evident that over the course of seven years the attorney has continuously misrepresented [Ameli]a, misused her funds and taken legal action against me personally using her mother’s name as a shield of protection to advance her own interests. The attorney has attempted to bankrupt me, the attorney has threatened to take my house, and the attorney has attempted to exhort further money from me through her solicitors after orders were paid in full.”

21. Jennifer stated that Amelia should be afforded the full protection of the NSW Civil and Administrative Tribunal (NCAT) in appointing an independent financial manager to protect Amelia from any further financial exploitation by the attorney. Intervention is required to ensure that her financial assets are not further eroded. She concluded that the real issue is not about standing but the demonstrated misuse of Amelia’s funds and the breaches of Laura’s role as attorney.

22. In the hearing, Jennifer stated that she had known Amelia for 55 years and Amelia had been in her life through all of her ups and downs. She claimed that she was in Amelia’s will and that Amelia was interested in her and her sisters. She has had no contact with Amelia for the past nine years. She repeatedly asserted that Laura was abusing her mother’s name in undertaking a personal vendetta against her and to create costs against her. She asserted that 50% of Amelia’s estate was to be distributed to her and her two sisters. She accused Laura of stealing from her mother, of extorting money from her and of disrespecting her mother’s name to extract costs from her. She explained that she was only trying to defend herself against Laura.

Mr Lagopodis’ submissions on behalf of Laura

23. Mr Lagopodis made the following submissions:

• The proceedings are vexatious because Jennifer has repeatedly brought the same applications on the same issue and the applications are an abuse of process to harass and intimidate Laura. Jennifer is using the Tribunal to pursue her ongoing personal dislike and vendetta against Laura.

• Jennifer is seeking ongoing disclosure of Amelia’s financial affairs; and she is not accepting any court orders concerning Laura’s conduct in initiating court proceedings on Amelia’s behalf to protect her and to recover costs awarded against Jennifer. It is Jennifer who has brought all of the proceedings against Laura, and she has no option but to defend them.

• Jennifer does not have standing to make the application for the following reasons:

1. There is no close relationship with Amelia.

2. The motive behind her applications is to preserve her own inheritance.

3. It was Jennifer who initiated the original action and Laura was not appointed as attorney until most of the events leading to the apprehended domestic violence order had occurred.

4. Jennifer does not accept any unfavourable decision and makes herself out to be the victim.

5. Jennifer’s lodgement of a caveat over Amelia’s regional NSW property to prevent it being sold and the attorney using the funds to pay the residential accommodation deposit is significant because her refusal to lift the caveat and cooperate resulted in additional daily care fees of $5,000 payable by Amelia.

6. Jennifer has relied on the outcome of the Federal Court case in which costs were awarded in her favour to justify her claims of impropriety and wrongdoing by the attorney. There were no adverse findings made against Laura who was appointed as her mother’s tutor.

7. Jennifer did not pay the claimed amount in the bankruptcy petition and refused to negotiate and pay any additional legal costs. Attempts were made to recover costs from Jennifer, but she instructed barristers and solicitors to contest any further claims for costs and did not agree to negotiate the claim, thus incurring over $30,000 in legal fees. Although the original registrar’s decision was made in favour of costs against Jennifer, she sought a review and the decision was overturned. Any further action was not in the best interests of Amelia, and it was decided not to pursue the matter.

8. Since the initial directions hearing for this application, Jennifer has filed a Notice of Motion with the District Court seeking a review and setting aside all judgments amounting to Local Court costs and District Court costs. These proceedings are frivolous and vexatious and relate to a review of a court judgment which is significantly out of time. The District Court had no jurisdiction to determine the application. Jennifer’s application has since been dismissed with costs.

24. Mr Lagopodis concluded that Laura has always acted in the genuine best interests of her mother who is an elderly vulnerable person with dementia. There is no evidence of exploitation or wasting of any funds of Amelia’s estate by the attorney. She has always made sound, measured and well considered decisions and has been conscious of legal costs to fund any action on behalf of her mother. Jennifer’s application should be dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).

Does Jennifer have standing to make the financial management application?

25. The Tribunal must first consider if the application for the appointment of a financial manager by Jennifer is valid. If an application is brought by a person who is not authorised to do so, then there is no valid application, and the Tribunal has no jurisdiction to consider it. This is referred to as a person having standing to bring the financial management application.

26. Section 25I of the Guardianship Act 1987 (NSW) establishes who can make a valid financial management application. It states:

25I Application to Tribunal for a financial management order

(1)     An application for a financial management order may be made by -

(a)     the NSW Trustee, or

(a1)     the person who is the subject of the application, or

(b)     any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person who is the subject of the application.

27. In ACJ [2007] NSWGT 15, the Tribunal carefully considered the standing provisions in the Guardianship Act and found that a “genuine concern for the welfare of the person” requires that:

• the applicant is bringing to the attention of the Tribunal a fact situation in which the subject person's interests may call for intervention by the Tribunal;

• the applicant is sincere in seeing the situation as one that may call for the intervention of the Tribunal in the interests of the person; and

• the application is motivated by a desire to advance the welfare of the person. The interests of the person must be the primary motivation for the application.

28. The Tribunal stated that the word “welfare” is used broadly in the Guardianship Act, including financial as well as personal welfare.

29. The Tribunal considered the standing provisions in the context of the purpose of the Guardianship Act to be a combination of protection, empowerment and minimum intrusion on the lives of people with disabilities. On the one hand, it is important that members of the community are encouraged to make applications for people who may need the protection of the Guardianship Act. On the other hand, an application is itself intrusive on the life and rights of the individual. An applicant also becomes entitled to access to a wide range of often very personal and private information about the person subject of the application. An interpretation of the standing provisions will promote the purpose of the Guardianship Act if it strikes a balance between encouraging appropriate applications and discouraging applications that lack substance or that are not motivated by a desire to advance the welfare of the person subject of the application.

30. The Tribunal went on to set out a non-exhaustive list of the relevant factors to be considered when forming an opinion about whether the applicant has a “genuine concern for the welfare of the person”, as follows:

• How the applicant explains the reasons for the application and the kind of orders sought, in the application and in other relevant documents and evidence.

• Whether the applicant taken any reasonable steps to clarify and resolve the situation before bringing it to the Tribunal.

• The relationship of the applicant and the person subject of the application. Is it a family relationship, a friendship, a professional relationship or, for example, a neighbour? How longstanding and close is the relationship? Does the relationship involve any professional or other responsibility of the applicant for the person? Has the relationship been marked by positive and/or negative action by the applicant towards the person?

• The views of the person in relation to the issue of genuine concern. Does the person now, or has the person over time, expressed views in relation to their perception of the applicant and their relationship with the applicant?

• Does the applicant have a conflict of interest? Is this conflict more apparent than real?

• What is the nature of any conflict of interest? Does the applicant acknowledge the conflict? How does the applicant reconcile or propose to manage the conflict?

The Tribunal’s consideration

31. In the hearing Jennifer made several assertions about Laura’s mismanagement of her mother’s estate based on the long running and acrimonious legal actions between her and Laura. These actions appear to have commenced early in January 2018 with Jennifer’s refusal to pay the costs awarded against her in the apprehended domestic violence matter in which an order was made protecting Amelia from Jennifer. The matters have escalated since that time and have broadened to include matters in the Local, District and Federal Courts over the past seven years. At the same time, Jennifer has unsuccessfully pursued four applications in the Guardianship Division and costs orders have been made against her in two of those matters.

32. Referring to the factors set out in ACJ the Tribunal makes the following findings about each issue.

33. That the applicant is bringing to the attention of the Tribunal a fact situation in which the subject person's interests may call for intervention by the Tribunal: Jennifer has made no specific assertions or presented any cogent evidence about Laura’s alleged management of her mother’s finances. Jennifer has not brought to the Tribunal a fact situation calling for the intervention of the Tribunal. She knows nothing about Amelia’s financial affairs and her statements about Laura’s alleged abuse of her mother’s finances are based on inference only. In her statement accompanying her financial management application she referred to new evidence concerning an amount paid by her to Amelia which she alleged was not then paid into Amelia’s account. She knows nothing about the payment arrangements between Laura and her solicitor and how the costs orders have been managed. In her letter of 18 August 2024 accompanying her application, Jennifer quotes at length from a judgment from the Federal Court. However, that judgment makes no adverse findings about Laura’s management of Amelia’s estate.

That the applicant is sincere in seeing the situation as one that may call for the intervention of the Tribunal in the interests of the person: Jennifer’s sincerity is undermined by the number of applications she has brought to this Tribunal which have repeatedly been unsuccessful and against Amelia’s wishes when she had the capacity to make her wishes known.

34. That the application is motivated by a desire to advance the welfare of the person. The interests of the person must be the primary motivation for the application: The Tribunal finds that the primary motivation for the current application is not to promote Amelia’s welfare but rather to engage in another round of litigation with Laura and indirectly with Amelia, as evidenced by her submission that:

“I had no choice but to bring this application to NCAT as it is evident that over the course of seven years the attorney has continuously misrepresented [Amelia], misused her funds and taken legal action against me personally using her mother’s name as a shield of protection to advance her own interests.”

35. The relationship between the applicant and Amelia and the views of Amelia: Jennifer has never stated that she has shared a close relationship with Amelia. She referred to Amelia as being in her life, sharing books with her and having conversations about life in general. Jennifer stated that she provided support to her father and Amelia when James was ill. Against this evidence is the evidence of Amelia’s general practitioner of 28 years who stated that Amelia was very afraid of Jennifer and frightened of her reprisals. The separate representative for Amelia, in her submission of 23 August 2019, quoted Amelia as saying that she found Jennifer to be “intimidating.” The Tribunal preferred the objective evidence of the general practitioner and the separate representative to the self-serving evidence of Jennifer to find that while Jennifer may have known Amelia for a long period of time, it was not a close relationship. It was a relationship marked by negative action considering that an apprehended domestic violence order was made protecting Amelia from Jennifer. Jennifer’s action in lodging a caveat over Amelia’s regional NSW property at a time when it was being sold to pay for the residential accommodation deposit is not the action of a person with a genuine concern for Amelia’s welfare.

36. In relation to the statement by the separate representative in her written submission to the Tribunal that Amelia had told her it was important that the children of her late partner and her own children benefit equally from her estate, it is important to understand this statement in context. In the preceding paragraph of her submission the separate representative found Amelia to be confused, not understanding the effect of her late partner’s will to make her sole beneficiary and confused about whether she and her late partner had made wills to share their estate between their children. She was very confused about her present circumstances particularly the sale of her house in regional NSW. She could not tell the separate representative the day of the week or the name of the nursing home in which she was living. Considering Amelia’s impaired cognitive capacity at the time that she made the statement relied on by Jennifer, the Tribunal did not find this statement supported Jennifer’s claim of having standing.

37. A conflict of interest: The Tribunal also found that Jennifer had a conflict of interest in preserving Amelia’s estate with the intention that she and her sisters will benefit from the estate after her death. Jennifer would not perceive that she had a conflict of interest. She is motivated by her own interests, evidenced by her ongoing engagement in litigation against Laura and Amelia over the past seven years.

38. The Tribunal was unable to find any authority for the special interest test relied on by Jennifer in the context of the current issues before the Tribunal.

Decision

39. Having considered all of the above factors, the Tribunal concluded that Jennifer did not a genuine concern for the welfare of Amelia and so did not have standing to bring the financial management application. The Tribunal dismissed the application. The Tribunal has no jurisdiction to deal with the application.

Vexatious Proceedings Act 2008 (NSW)

40. Mr Lagopodis submitted that the Tribunal had power under s 8(6) of the Vexatious Proceedings Act 2008 (NSW) to make a recommendation to the Attorney General to make a vexatious proceedings order against Jennifer.

41. Section 8(6) of the Vexatious Proceedings Act states:

8   Making of vexatious proceedings order

…

(6)    A judicial officer, member or registrar of a court or tribunal may make a recommendation to the Attorney General that he or she consider making an application for a vexatious proceedings order in relation to a specified person.

42. The Tribunal has not made any findings on this occasion that the proceedings brought by Jennifer are vexatious and thus there is no basis on which to make a recommendation to the Attorney General for a vexatious proceedings order.

Costs

43. At the conclusion of the hearing, Mr Lagopodis indicated that if the application was dismissed, then Laura would consider bringing an application for a costs order against Jennifer. The Tribunal makes the following directions about costs:

1. Any application for costs, together with submissions and evidence in support of the application, is to be lodged with the Registry and provided to the other parties by 22 May 2025.

2. Any submission and evidence in response to any such costs application are to be lodged with the Registry and provided to the other parties by 4 June 2025.

3. Any submissions in reply are to be lodged with Registry and provided to the other parties by 11 June 2025.

4. Submissions on an application for costs by each party are not to exceed four pages in length and must be presented in 12-point font or larger.

5. The Tribunal may dispense with the hearing and determine an application for costs on the basis of the written submissions. If the parties oppose this course of action they should make submissions on this issue when complying with the directions.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 07 August 2025