B v B

[2017] NSWSC 1674

Supreme Court

New South Wales

Medium Neutral Citation:	B v B [2017] NSWSC 1674
Hearing dates:	10 November 2017
Date of orders:	10 November 2017
Decision date:	10 November 2017
Jurisdiction:	Equity - Protective List
Before:	Lindsay J
Decision:	An appeal from the Guardianship Division of NCAT summarily dismissed, with costs
Catchwords:	GUARDIANSHIP – Appeal from NCAT – Civil and Administrative Tribunal Act 2013, Schedule 6, clause 14(1)(b) – Summary Dismissal – Abuse of Process – Failure to identify question of law or ground relied on for broader appeal – Failure to comply with court rules and orders – Proceedings maintained for collateral purpose – Appeal dismissed
Legislation Cited:	Civil and Administrative Tribunal Act 2013 NSW Uniform Civil Procedure Rules 2005 NSW
Cases Cited:	BB v LB & Ors [2017] NSWSC 1079.
Texts Cited:	-
Category:	Principal judgment
Parties:	Plaintiff: Son of Incapable person First Defendant: Daughter of Incapable Person
Representation:	Counsel: Plaintiff: Self-represented First Defendant: CH Cassimatis   Solicitors: Plaintiff: Self-represented First Defendant: Paul Duffy
File Number(s):	2017/001964481

Judgment – EX TEMPORE

1. On 14 June, 2017, the NSW Civil and Administrative Tribunal (NCAT), sitting in its Guardianship Division, made orders under the Guardianship Act 1987 NSW affecting Mrs B, the mother of the parties presently before the Court in these proceedings.

2. The Tribunal ordered that a pre-existing guardianship order be: (a) renewed, as a continuing guardianship order, for a period of 12 months; and (b) varied by appointment of guardians for Mrs B, both the Public Guardian and the first defendant.

3. The Public Guardian was given the function of deciding what access Mrs B would have to others, and the conditions of access.

4. The first defendant was given functions in relation to accommodation, health care and medical and dental consent.

5. Mrs B is a permanent resident in an aged care facility in Greenacre, a suburb of Bankstown.    

6. By summons filed on 30 June, 2017, the plaintiff instituted an appeal from the decision of NCAT. The appeal, the subject of the summons, is governed by clause 14(1)(b) of Schedule 6 to the Civil and Administrative Tribunal Act 2013 NSW.

7. Clause 14(1)(b) provides for there to be an appeal "as of right on any question of law, or with the leave of the Court, on any other grounds."

8. The plaintiff’s summons takes a form which does not conform to the requirements of clause 14(1)(b) in the sense that it does not articulate any question of law, or set forth grounds for a grant of leave to appeal on a ground other than a question of law.

9. It might be added that the orders sought on appeal are deficient also in that, while they seek to remove the first defendant as a guardian for Mrs B, they do not set forth any responsible, alternative regime.

10. The parties to the summons initially were the plaintiff (described as “first plaintiff”), Mrs B (described as “second plaintiff”), the first defendant and two other persons, respectively designated the second and third defendants.

11. On 15 August 2017, Kunc J ordered that the second and third defendants be removed from the proceedings: BB v LB & Ors [2017] NSWSC 1079. He also ordered that Mrs B, initially named as a plaintiff, be removed from the proceedings.

12. The only parties to the proceedings at this stage are the plaintiff, the son of Mrs B, and the first defendant, daughter of Mrs B. At no stage has the Public Guardian been named as a party to the proceedings.

13. By a notice of motion filed on 2 November 2017, the first defendant seeks orders for summary dismissal of the proceedings. Those orders are sought essentially on two bases. First, that the proceedings are frivolous, disclose no reasonable cause of action and are otherwise an abuse of the process of the Court sufficient to engage rule 13.4 of the Uniform Civil Procedure Rules 2005 NSW; and, secondly, that the plaintiff, having failed to comply with orders and directions of the Court, section 61(3)(a) of the Civil Procedure Act 2005 NSW has been engaged.

14. The proceedings have been before the Court on a variety of occasions. They were before the Prothonotary on 11 July 2017. They were before Kunc J on 14, 15 and 28 August and 11 September 2017. They were before me on 6 November 2017, as a consequence of which they (and the defendant's notice of motion) were listed before me today.

15. On more than one occasion the plaintiff has been directed to file an affidavit, or affidavits, conforming to rule 50.14 (1) of the Uniform Civil Procedure Rules 2005. He has not done so.

16. Deficiencies in the summons were drawn to his attention by Kunc J on 15 August, 2017, upon which date his Honour published reasons for judgment ([2017] NSWSC 1079), the effect of which was not only to reconstitute the proceedings, but to make an order under clause 14 (5) of Schedule 6 of the Civil and Administrative Tribunal Act 2013 NSW, denying the plaintiff's contention that the orders under appeal should be stayed.

17. Part of the reason, perhaps, for the plaintiff being unable, or unwilling, to articulate a case within the framework of clause 14(1)(b) of the Civil and Administrative Tribunal Act may be that he seeks, from these proceedings, relief beyond that for which the proceedings are designed. He seeks to allege that the doctors treating Mrs B have been negligent in their treatment of her, and that the first defendant has also been guilty of a breach of her "duty of care."

18. As Kunc J observed, there appears to be no irregularity in the orders made by the Tribunal on 14 June 2017, or in the reasons for decision subsequently published in support of those orders. There appears to be no occasion, in the present proceedings, for engagement of the Court's inherent protective jurisdiction.

19. The allegations made by the plaintiff, with all due respect to him, appear to be rambling and at times incoherent.

20. The plaintiff has been given ample opportunity to formulate a summons responsive to clause 14(1)(b) of Schedule 6 of the Civil and Administrative Tribunal Act. He has demonstrated an unwillingness or inability to do so. He has been given ample opportunity to comply with the requirements for prosecution of such an appeal. He has not complied with orders requiring him, in particular, to file and serve an affidavit, or affidavits, conforming to rule 50.14 (1) of the Uniform Civil Procedure Rules 2015.

21. The plaintiff seeks to excuse his non-compliance with orders of the Court, and with clause 14(1)(b), by casting upon the first defendant a forensic onus to adduce evidence from doctors, including doctors nominated by him. This insistence on the part of the plaintiff is, in my judgment, a reflection of his on-going desire to use the pendency of these proceedings for purposes beyond those for which they are designed.

22. The net effect of the course of conduct pursued by the plaintiff is a demonstration by him that the proceedings are properly, in a legal sense, to be characterised as frivolous, without demonstration of a reasonable cause of action, and as an abuse of process.

23. Because the proceedings are to be so characterised, and because the plaintiff has failed to comply with the Court's orders for their preparation, the first defendant is entitled to an order that the proceedings be dismissed.

24. Accordingly I order that the proceedings be dismissed:

25. [The parties addressed the Court on the question of costs.]

26. I order the plaintiff pay the first defendant's costs of the proceedings:

1. up to 15 August 2017, on the ordinary basis; and

2. thereafter, on the indemnity basis.

27. In making the costs orders that I have, I record that I proceed on the basis that, prima facie, costs follow the event. Nevertheless, recognising that the proceedings have involved an element of protective jurisdiction, it is the practice of the Court to focus more broadly on what is the proper order for costs to be made in all the circumstances.

28. I have not proceeded lightly to an order for summary dismissal of the proceedings. Allowance has been made for the opportunities given to the plaintiff to articulate his case; opportunities which have not been taken.

29. In the circumstances of this case, it seems to me appropriate to apply the general rule that costs follow the event. It seems to me appropriate, also, to visit upon the plaintiff an order for costs on the indemnity basis following publication of Kunc J's reasons for judgment, explaining in chapter and verse deficiencies in the plaintiff's presentation of his case.

30. In the course of argument today, as on 6 November 2017, the plaintiff complains that he did not receive a written copy of Kunc J's reasons for judgment. However the transcript of the proceedings before the Court on 15 August 2017 records, and the plaintiff does not deny, that he appeared before Kunc J on that date.

31. In fairness to the parties on both sides of the record, it seems to me that an order for costs against the plaintiff should be limited, until 15 August 2017, to an order for assessment of costs on the ordinary basis, but extended after that date to an order for costs on the indemnity basis.

32. I order, subject to further order, that the exhibits remain with the Court file.

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Decision last updated: 05 December 2017