Angliss v Urquhart

[2002] NSWCA 256

NEW SOUTH WALES COURT OF APPEAL

CITATION:     Angliss v. Urquhart & Anor. [2002]  NSWCA 256

FILE NUMBER(S):
40207/02

HEARING DATE(S):    24 July 2002

JUDGMENT DATE:      09/08/2002

PARTIES:
William Arthur Angliss - claimant
Alison Mary Urquhart - 1st opponent
Andrew Roderick Urquhart - 2nd opponent

JUDGMENT OF:        Mason P Hodgson JA Davies AJA   

LOWER COURT JURISDICTION:       Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):     SC2648/01

LOWER COURT JUDICIAL OFFICER:   Young CJ in Eq.

COUNSEL:
Mr. S. Rares SC with Mrs. M. Gilmour for claimant
Mr. P. Hallen SC with Mr. R.S. Angyal for opponents

SOLICITORS:
Deacons, Sydney for claimant
Hunt Partners, Sydney for opponents

CATCHWORDS:
CONTRACT - Agency - Power of attorney - Purported revocation - Alleged lack of capacity to revoke - Whether revocation void or merely voidable
MENTAL HEALTH - Appointment of guardian and/or manager - Defendant and most of his estate outside NSW - Jurisdiction - Utility - Appropriateness of forum
PROCEDURE - Declaration - Utility - Agents seeking declaration that purported revocations of their appointments void, and also orders providing for the future care of the defendant and management of his estate - Whether NSW proceedings should be stayed.

LEGISLATION CITED:
Protected Estates Act 1983 (NSW)
Guardianship and Administration Act 2000 (Q)

DECISION:
1. Leave to appeal granted, conditional upon a Notice of Appeal joining the first defendant as an additional respondent being filed within 14 days. 2. Appeal upheld, and the following orders made in addition to the orders made below. 3. Direct hearing of a separate issue, namely the issue of whether the plaintiffs establish that the purported revocations by the third defendant of the plaintiffs' various appointments are void, to be decided in advance of all other issues, including the challenge to the retainer of the third defendant's solicitors.  4. If that issue or any part of it is decided in favour of the plaintiffs, then the further progress of the matter is to be subject to the directions of the Supreme Court.  5. If that issue is wholly decided against the plaintiffs, then the  proceedings are permanently stayed. 6. Plaintiffs to pay third defendant's costs of the application for leave and the appeal, and to have a suitors' fund certificate if otherwise entitled.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40207/02
ED  2648/01

MASON P
HODGSON JA
DAVIES AJA

Friday 9 August 2002

ANGLISS  V.  URQUHART & ANOR.

Judgment

1. MASON P:  I agree with Hodgson JA.

2. I do so on the bases that (a) no case was run to the effect that the proceedings on the separate issue of the voidness of the revocations were bound to fail and (b) the Supreme Court of New South Wales is not a clearly inappropriate forum for that issue.  Suffice it to say that the plaintiffs are on notice that they are at risk as to costs if they continue to prosecute contentious proceedings that appear to have limited utility having regard to the present circumstances of the third defendant.

3. Similar reasons explain why the Court should decline to exercise any power of its own motion to transfer the rump of the proceedings to the Supreme Court of Queensland under the Jurisdiction of Costs (Cross-vesting) Act 1987.

4. HODGSON JA:  On 5 March 2002, Young CJ in Eq. gave judgment in response to Notices of Motion brought respectively by the first defendant Heather Margaret Lanham and the third defendant William Arthur Ingliss, each of which sought an order that the Statement of Claim in these proceedings brought by the plaintiffs Alison Mary Urquhart and Andrew Roderick Urquhart be struck out.  At the hearing of the Notices of Motion, they were amended to include claims that the proceedings be stayed.  His Honour declined to make the orders sought, but decided that portions of the Statement of Claim should be struck out. 

5. On 25 March 2002, the primary judge made the following orders:

   1.The following paragraphs of the Amended Statement of Claim be struck out, namely 4, 5, 5A, 5B, 18 to 29, 32 to 38A, 42 to 44 and 49 to 53 inclusive.

   2.Prayers 1, 3 to 14, 18 to 36 and 40 to 47 be struck out.

   3.Prayers 2A and 2B be stayed until further order.

   4.The costs of the two motions be reserved.

6. The third defendant (claimant) seeks leave to appeal from the decision of the primary judge in respect of his failing to strike out or stay the whole of the Amended Statement of Claim.

   CIRCUMSTANCES

7. The plaintiffs are two grandchildren of the third defendant, who is a widower aged about 91.  The first defendant is the only surviving child of the third defendant, and is the aunt of the plaintiffs.

8. It appears that the third defendant lived in Port Macquarie, New South Wales from about 1988 until about March 2001. 

9. The plaintiffs allege that the third defendant appointed them his attorneys by means of general, unrestricted and enduring powers of attorney, in 1993, 1995 and 2000; and also that the third defendant appointed the first plaintiff his enduring guardian pursuant to s.6 of the Guardianship Act 1987 in August 2000. They allege that since about December 2000, the third defendant has lacked capacity to revoke those appointments or to make other such appointments.

10. They also allege that in about March 2001 the first defendant took the third defendant to Queensland, without giving notice to the plaintiffs, and that since then the plaintiffs have been unable to have access to him or to exercise their powers as attorneys and guardian. 

11. It appears that in about March 2001 and subsequently, the third defendant has purported to appoint the first defendant his enduring guardian, and his attorney pursuant to a general and enduring power of attorney; and also to revoke the appointments of the plaintiffs. 

12. It appears also that in about May 2001 the first defendant completed the purchase of a property in Tugun, Queensland, using funds of the third defendant, in respect of which property she has declared herself to be trustee for the third defendant.

13. The plaintiffs also allege that in July 2001, the third defendant purportedly mortgaged his property at Port Macquarie to the St. George Bank Limited, and that from the mortgage advance of about $250,000.00, about $134,000.00 was paid to the first defendant.  It appears that this property was sold in about December 2001, and the mortgage was discharged from the proceeds of sale. 

14. These proceedings were commenced on 15 May 2001, and the third defendant was joined as a defendant on 4 June 2001.  On 25 July 2001, the plaintiffs filed a Notice of Motion challenging the retainer of the third defendant’s solicitors; and this challenge has been stood over to the hearing.

15. On 16 October 2001, and again on 30 October 2001, judges of the Equity Division ordered the third defendant to attend a medical examination.  Those orders were overturned by the Court of Appeal on 19 November 2001. 

16. The third defendant’s Notice of Motion to strike out the Statement of Claim was filed on 13 December 2001. 

17. In their Amended Statement of Claim, filed on 13 February 2002, the plaintiffs claimed declarations that the first plaintiff continues to be the third defendant’s guardian, and that the plaintiffs continue to be the third defendant’s attorney, and also claimed orders under the Protected Estates Act for the management of the third defendant’s estate. They also claimed an account from the first defendant in relation to the $134,000.00; and avoidance of various instruments purportedly exercised by the third defendant since March 2001.

    THE PRIMARY JUDGE’S DECISION

18. Before the primary judge, it was claimed on behalf of the third defendant that the proceedings were vexatious and oppressive:  the third defendant was now living happily in Queensland with his relatives, and did not wished to be harassed by proceedings, especially proceedings in New South Wales.  It was also claimed by the first defendant and the third defendant that in various respects the plaintiffs lacked standing to seek the relief in the Amended Statement of Claim.

19. In his judgment, the primary judge held as follows.  Firstly, that the plaintiffs did not have standing to sue on behalf of the third defendant as his attorneys, as opposed to suing in the name of the third defendant.  Secondly however, that there was utility for the plaintiffs in knowing whether their authorities were still in place; and that proceedings to establish this were not oppressive.  Thirdly, the fact that the third defendant and most of his assets were now in Queensland could be relevant to convenience, but (except possibly in relation to the application for a management order) did not affect jurisdiction.  Fourthly, as regards the application for a management order, the primary judge held that it was no objection to that application that the alleged incapable person was outside New South Wales, provided he had property in New South Wales (MS v ES [1983] 3 NSWLR 119); and that one presumes a person has property in New South Wales unless the contrary is demonstrated. In any event, if the allegation of abduction from New South Wales and the sale of property in New South Wales without proper authority were made out, the Court would have jurisdiction to deal with that matter.

20. For those reasons, the primary judge struck out claims for avoidance of various instruments and stayed the claim for an account; but left standing the claims for declarations as to the continuance of the plaintiffs’ appointments as attorneys and guardian, and the application under the Protected Estates Act.

    PROPOSED GROUNDS OF APPEAL

21. The draft Notice of Appeal specified the following 23 grounds:

    1.            His Honour erred in finding that on the plaintiffs' account Mr Angliss was abducted. [judgment para. 40].

    2.            His Honour erred in finding that the third defendant was effectively captured by the first defendant and removed from Port Macquarie to Tugun. [para.3].

    3.            His Honour erred in finding that on the plaintiffs' case an unauthorised person removed the third defendant from this State. [para 30].

    4.            His Honour erred in that he did not take into consideration the unchallenged evidence in the affidavit of Dr Judith Maureen Chittenden sworn 18 September 2001 in respect of the issue of whether the third defendant was abducted or removed from the State.

    5.            His Honour erred in finding that all the court has really is senior counsel's continued assertions that the third defendant is happy [para.44].

    6.            His Honour erred in failing to find that there was appropriate evidence that the third defendant was happy.

    7.            His Honour erred in that he did not take into consideration the unchallenged evidence in the affidavit of Dr Judith Maureen Chittenden sworn 18 September 2001 in respect of the issue of whether the third defendant was happy.

    8.            His Honour erred in that he did not take into consideration the unchallenged evidence in the affidavit of Elsa Fletcher sworn on 13 September 2001 in respect of the issue of whether the third defendant was happy.

    9.            His Honour erred in finding that plaintiffs had made the point that no affidavits filed by the defendants. [para. 11].

    10.         His Honour erred in making criticism of the first defendant in that she had "not deigned” to file any evidence.[para. 44].

    11.         His Honour erred in that he did not take into consideration the unchallenged evidence of the first defendant in her affidavit sworn 13 September 2001.

    12.         His Honour erred in finding that the first defendant had "now" admitted that she holds the Tugun property on trust for the third defendant absolutely. [48].

    13.         His Honour erred in finding that the defendants' camp has been so full of technical objections to the suit that suspicion is engendered. [para. 44].

    14.         His Honour erred in failing to find that an appearance had been filed by the third defendant prior to any relief being sought of the nature of that contained in paragraphs 47A, 4713, 47C and 47D of the amended statement of claim filed on 13 February 2002.

    15.         His Honour erred in failing to find that there were no assets requiring management in New South Wales.

    16.         His Honour misapplied the principles relating to the utility of a declaration in respect of the declaration sought in prayer 17 given the inconsistency of this declaration with the prayers sought in prayers 47A, 47B, 47C and 47D.

    17.         His Honour erred in failing to consider the oppressiveness of the nature of the proceedings involving a 7 day hearing for a 91 year old defendant in failing to strike out prayers 17 and 19 in the Amended Statement of Claim on the basis there was utility in obtaining the declarations as to the validity of;
    (a) the power of attorney ;
    (b) the enduring guardianship in favour of the first named defendant.

    18.         His Honour erred in failing to consider the vexatious nature of proceedings involving a 7 day hearing for a 91 year old defendant in failing to strike out prayers 17 and 19 in the Amended Statement of Claim on the basis there was utility in obtaining the declarations as to the validity of;
    (a) the power of attorney ;
    (b) the enduring guardianship in favour of the first named defendant.

    19.         His Honour erred in failing to strike out prayers 17 and 19 in circumstances where the declarations sought make the donor of the powers the contradictor of their continuing validity.

    20.         His Honour erred in that he did not take into consideration the unchallenged evidence in the affidavit of Dr Judith Maureen Chittenden sworn 18 September 2001 in respect of the issue of whether the third defendant was capable of participating in proceedings of the kind brought by the respondents.

    21.         His Honour erred in that he did not take into consideration the unchallenged evidence in the report of Dr Harding-Clark sworn 30 August 2001 in respect of the issue of whether the third defendant was capable of participating in proceedings of the kind brought by the respondents.

    22.         His Honour's errors were such as to amount to an error in the exercise of his discretion to strike out the entirety of the amended statement of claim in so far as it affects the third defendant; House v. The King (1936) 55 CLR 499 504-505.

    23.         His Honour erred in the application of the principles referred to in Walton v Gardiner (1993) 177 CLR 378, 393 in failing to find that in the circumstances of the third defendant the;

    (i)the Court is an inappropriate forum in which proceedings for the protection of the third defendant should be brought;

    (ii)the continuation of the proceedings in the light of the addition of paragraphs 47A, 47B, 47C and 47D as a last resort to save the proceedings is so unfair to the third defendant that the administration of justice is brought into disrepute.

22. The case was heard on the basis that, if leave was granted, the appeal would be decided without further argument.

    SUBMISSIONS

23. Mr. Rares SC for the third defendant relied on all grounds of appeal, but focused in his oral submissions on the claim that the primary judge erred in not staying the proceedings as oppressive, particularly in that they were being pursued in New South Wales rather than in Queensland. 

24. Mr. Rares submitted that, in dealing with this matter, there was error in assertions by the primary judge that, despite serious allegations against the first defendant “she has not deigned to give evidence”; and that “all the court really has Senior Counsel’s continued assertion that the third defendant is happy”.  The relevance of those errors to the primary judge’s decision was confirmed, Mr. Rares submitted, by the primary judge’s later statement that “if there was some appropriate evidence to back up Mr. Rares SC’s continued assertion, the court might take a different view”.  The statements about evidence were errors, he submitted, because the first defendant had filed an affidavit, relevant parts of which were read before the primary judge, and there was other evidence, indeed undisputed evidence, that the third defendant was happy and well looked after in Queensland, namely evidence from his housekeeper and from a psychiatrist. 

25. Accordingly, Mr. Rares submitted, the primary judge’s discretion had miscarried, and this Court should consider for itself whether the proceedings should be stayed on the basis of oppression and the inappropriateness of the proceedings being brought in New South Wales. 

26. Mr. Rares submitted that the principal matter for determination now was what if anything should be done in relation to the ongoing management of the third defendant’s property and care for the third defendant; and in circumstances where there was undisputed evidence that he was being looked after and was happy in Queensland, where most of his assets were in Queensland, and where it would cause hardship to have these issues determined in New South Wales, plainly the appropriate tribunal was the Guardianship and Administration Tribunal of Queensland. This was particularly so having regard to the circumstance that, even assuming that there was jurisdiction under the Protected Estates Act to make an order concerning a Queensland resident on the basis of the existence of very limited assets in New South Wales, such an order would not appropriately provide for the future management of the third defendant’s estate, the bulk of which was in Queensland, or for the care of the third defendant. The New South Wales Supreme Court was a clearly inappropriate tribunal. Mr. Rares referred to Walton v. Gardiner (1993) 177 CLR 378 at 392-3; Henry v. Henry (1996) 185 CLR 571 at 587; Tringali v. Stewartson Stubbs & Collett Limited (1966) 66 SR(NSW) 335 at 345; James Hardie & Co. Pty. Limited v. Barry (2000) 50 NSWLR 357.

27. Mr. Hallen SC submitted that leave to appeal should be refused, because an appeal was brought only by the third defendant, and the case would therefore in any event proceed against the first defendant; so there could be no utility in allowing an appeal.

28. Next, Mr. Hallen submitted that the primary judge made no error in relation to evidence:  what the primary judge was referring to was the circumstance that the third defendant had put on no evidence, so that all that was relied on on behalf of the third defendant was essentially hearsay evidence put on by others. 

29. Mr. Hallen submitted that New South Wales was not a clearly inappropriate forum:  Regie National Renault v. Zhang (2002) 76 ALJR 551 at 556. From 1988 at least, the third defendant had been in New South Wales, with assets in New South Wales. The allegation was that in March 2001 events occurred in Port Macquarie associated with the purported revocation of authorities granted to the plaintiffs and grants of authorities to the first defendant, when the third defendant had no capacity; and that the third defendant was then taken from New South Wales to Queensland when he had no capacity to form the intention to do so for himself. Thereafter, New South Wales assets were dealt with and sold when the third defendant had no capacity to deal with them. When the proceedings were commenced, the third defendant put on an unconditional appearance, and retained New South Wales legal representation. Palmer J on 3 July 2001 refused an earlier application to transfer the proceedings to Queensland. There were then numerous directions hearings and substantial costs incurred in making the proceedings ready for hearing, to the extent that a hearing date was granted, prior to the hearing of the application by Young CJ in Eq.

30. Mr. Hallen submitted that there was no evidence that the third defendant was incapable of travelling, and no evidence that the third defendant would participate in proceedings even if proceedings took place in Queensland. 

31. Mr. Hallen submitted that proceedings could be brought in the circumstances under the Protected Estates Act in New South Wales, and there was no basis for any submission that proceedings under that Act would be more adversarial and more burdensome on the third defendant than would be proceedings in Queensland before the Guardianship and Administration Tribunal.

    DECISION

1. It is convenient to consider first the claim by the plaintiffs for declarations as to whether their various appointments continue in force.  It is important to note that the third defendant’s application did not seek to make out a case that these claims had no reasonable basis.  It might have been possible to do so, because in my opinion the claims depend upon it being established that subsequent purported revocations of the appointment are void, it being insufficient to establish that they are voidable.  If the revocations were merely voidable, they take effect unless and until someone with standing seeks to set them aside; and, in accordance with the primary judge’s findings, the plaintiffs would have no standing to do this.  To make out that the revocations are void would require quite extreme deficiency in the understanding of the third defendant (see Gibbons v. Wright (1954) 91 CLR 423), and having regard to the evidence put on by the first defendant and the third defendant, it may well be that the plaintiffs do not have plausible evidence of such extreme deficiency of understanding. However, since the application was not directed to this question, there was no need for the plaintiffs to put on their evidence in the applications, and there was no basis for the primary judge to strike out the claims on the basis that they had no reasonable foundation.

2. So what the primary judge was faced with on this aspect was a claim by the plaintiffs that they still had the authority and responsibility of being the third defendant’s attorneys and guardian, in circumstances where it was not shown they did not have reasonable grounds for making that claim.  I think persons in the position of the plaintiffs have an interest in knowing whether or not they still have such authority and responsibilities:  they may quite properly feel an obligation to exercise the authorities if they still have them; and it is conceivable that they could later be subjected to some liability if, having the authority to act, they negligently or otherwise improperly fail to do so. 

3. Turning to the claim under the Protected Estates Act, the case of MS v. ES relied on by the primary judge concerned the inherent jurisdiction of the court rather than the jurisdiction under the Protected Estates Act. However, I think it likely that there is jurisdiction under that Act to make a management order in respect of a person resident in another State, if that person has property in New South Wales. Whether or not it is correct, as the primary judge said, that one presumes a person has property in New South Wales, it seems to be common ground that the third defendant does have a small amount of property in New South Wales, namely some NRMA shares. In any event, if a claim under the Protected Estates Act were struck out, in all probability the plaintiffs would be given liberty to re-plead to seek an order for management of the third defendant’s property in New South Wales, under the inherent jurisdiction of the court; and that is directly supported by MS v ES.  So again, there would appear to be no error in the primary judge’s decision not to strike out this claim. 

4. It follows that the real question on this application really concerns the grant of a stay, or possibly of some alternative remedy which would have the result that any proceedings relating to the future care of the third defendant and management of his estate are dealt with by what is submitted to be the appropriate tribunal, namely the Guardianship and Administration Tribunal of Queensland. 

5. In my opinion, Mr. Rares’ submission concerning errors by the primary judge as to what evidence was before him is well-founded:  it may be that the judge was intending merely to refer to an absence of evidence by the third defendant, but that is not what he said, and the judgment does suggest that he proceeded on the basis that there was no evidence supporting Mr. Rares’ assertions about the circumstances of the third defendant.  I think that error would, if it is appropriate to grant leave, be such as to justify this court considering for itself what would be the appropriate exercise of discretion in relation to the application for a stay. 

6. As noted earlier, there are now two broad matters which are to be determined in the proceedings, as they are following the primary judge’s orders. 

7. First there is the question whether the appointments of the plaintiffs as attorneys and guardian have been revoked.  I have already noted the stringent requirement for success on this issue, namely establishing that the third defendant’s understanding of purported revocations was so deficient as to make them absolutely void.  The legal onus of proof on this matter would be on the plaintiffs:  they assert continuing authority; and furthermore, if they were subsequently to be made liable because of some deficiency in carrying out their responsibilities, in such proceedings the onus would be on interests representing the third defendant to prove that the appointments had not been revoked.  Accordingly, it seems to me that this is a fairly narrow issue, which should be capable of fairly quick determination, and which could be appropriate for separate determination in advance of all other issues, including the challenge to the retainer of the third defendant’s solicitors.  If that issue were decided against the plaintiffs, that would leave only the second broad matter, the application for orders concerning the future care of the third defendant and management of his estate.  However, if that issue were decided in favour of the plaintiffs, then the plaintiffs could pursue their challenge to the retainer of the third defendant’s solicitors, and could seek amendments enabling them to pursue, on behalf of the third defendant, the account in relation to the $134,000.00 and possibly some further relief. 

8. The events relevant to this first issue are mainly events occurring in New South Wales, and the issue is one which could not in any event be determined by the Guardianship and Administration Tribunal of Queensland.  Prima facie, this is an issue appropriate to be determined by the New South Wales Supreme Court.

9. As regards the second question, the matter of the future care of the third defendant and future management of his estate, it seems to me that, very plainly, the appropriate tribunal to deal with it would be the Queensland Guardianship and Administration Tribunal. If any order is required, it should be an order that can readily be given effect to in Queensland and by Queensland authorities. Furthermore, most witnesses as to the present and future requirements for the third defendant, not to mention the third defendant himself, would be in Queensland. It is true that the Supreme Court might make an order under the Protected Estates Act, but that order of itself would have little utility. It may be that such an order by the New South Wales Supreme Court could, by some process, be made to take effect in Queensland and be adopted by Queensland authorities, but it is not clear how this could efficiently be done.

10. The suggestion has been made that the case be transferred to the Queensland Supreme Court.  However, although the Guardianship & Administration Act 2000 (Queensland) preserves the inherent jurisdiction of the Supreme Court of Queensland, including its parens patriae jurisdiction (see s.240), that Act does give the Guardianship and Administration Tribunal exclusive jurisdiction for the appointment of guardians and administrators for adults with impaired capacity for matters (s.84).  The almost inevitable result of transferring the case, or that aspect of the case, to the Supreme Court of Queensland, would be for the Supreme Court in turn to transfer that aspect of the case to the Tribunal under s.241 of the Guardianship & Administration Act.  The Supreme Court of New South Wales has the powers of the Supreme Court of Queensland under the Guardianship & Administration Act:  see the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Queensland), s.4(1).  Accordingly, it may be open to this Court to exercise that power to transfer these proceedings, in so far as they seek provision for the future care of the third defendant and management of his estate, to the Queensland Guardianship and Administration Tribunal, either direct or via the Queensland Supreme Court.

11. What then is the appropriate exercise of discretion?  One possible view is that the first issue is now of little importance compared to the second issue, because an order for management of the third defendant’s estate and/or guardianship of his person would be based on all considerations now relevant to his present best interests and would displace the plaintiffs’ appointments.  However, the plaintiffs incurred substantial costs in these proceedings before this application was brought, and are prima facie entitled to an opportunity to make good their claim and recover some costs.  On the whole, I think the plaintiffs should, if they wish it, have the opportunity to litigate in the New South Wales Supreme Court the separate issue I have identified; and if they succeed on it, to seek further remedies as indicated above.

12. However, if they decide not to litigate that separate issue, whether by agreement with the defendants or otherwise, or if that issue is decided wholly against them, then I think the remainder of the proceedings should be permanently stayed on the ground that the New South Wales Supreme Court would then be a clearly inappropriate forum to litigate the question of what if any order should now be made for the future care of the third defendant and/or management of his property.  I have considered the alternative of transferring the proceedings to the Queensland Supreme Court or Guardianship and Administration Tribunal, but have decided against that course.  It would require an amendment, which the plaintiffs have not sought; and if either party wishes to submit that the preparation of evidence for these proceedings will assist in resolution of Queensland proceedings that are to be instituted, then this can be recognised in the costs order made by this Court.  I note that, if an application is made to the Queensland Tribunal, s.127 of the Guardianship & Administration Act provides as follows:

    127(1)   Each party in a proceeding is to bear the party’s own costs of the proceeding.

    (2)         However, the tribunal may order an applicant to pay an active party’s costs and the costs of the tribunal in exceptional circumstances, including, for example, if the tribunal considers the application is frivolous or vexatious.

13. There may be a technical deficiency in the proceedings in this Court, in that the first defendant was not a claimant and was not joined as an opponent:  however, I think it is obvious that in general terms she supports the third defendant’s application, and I do not think any special provision need to be made in relation to her position.

    CONCLUSION

14. Accordingly, I propose the following orders:

    1.Leave to appeal granted, conditional upon a Notice of Appeal joining the first defendant as an additional respondent being filed within 14 days.

    2.Appeal upheld, and the following orders made in addition to the orders made below.

    3.Direct hearing of a separate issue, namely the issue of whether the plaintiffs establish that the purported revocations by the third defendant of the plaintiffs’ various appointments are void, to be decided in advance of all other issues, including the challenge to the retainer of the third defendant’s solicitors. 

    4.If that issue or any part of it is decided in favour of the plaintiffs, then the further progress of the matter is to be subject to the directions of the Supreme Court. 

    5.If that issue is wholly decided against the plaintiffs, then the  proceedings are permanently stayed.

    6.Plaintiffs to pay third defendant’s costs of the application for leave and the appeal, and to have a suitors’ fund certificate if otherwise entitled.

15. DAVIES AJA:  I agree with Hodgson JA and with the additional reasons of the President.

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LAST UPDATED:       09/08/2002