WW v AJFW

[2024] NSWSC 754

Supreme Court

New South Wales

Medium Neutral Citation:

WW v AJFW [2024] NSWSC 754

Hearing dates:

6 June 2024

Date of orders:

21 June 2024

Decision date:

21 June 2024

Jurisdiction:

Equity

Before:

Rees J

Decision:

Summons dismissed.

Catchwords:

UNDERTAKINGS TO THE COURT – elderly mother sues only son and his wife – settled – son and wife give undertaking to the court not to contact the mother – court informed undertakings interim measure intended to restore family relationships – not fit for purpose – implications on procedural fairness in subsequent legal proceedings – need for clear drafting at [73] – acceptance of undertaking in settlement context does not represent Court’s endorsement at [74]-[75] – Court’s discretion to accept undertakings at [76]-[77].

COURTS AND TRIBUNALS – whether NCAT has power to permanently stay proceedings – caselaw review at [96]-[107] – unnecessary to determine given express power to dismiss vexatious proceedings – s 55(1)(b), Civil and Administrative Tribunal Act 2013 (No 2) (NSW).

PARENS PATRIAE – principles at [107]-[109] – elderly mother seeks orders prohibiting son and his wife from instituting any proceedings concerning her – cites stress and anxiety caused by further NCAT proceedings – whether “exceptional circumstances” exist – NCAT is a specialist tribunal best suited to consider the matter – mother is competent and able to give instructions – query whether orders sought are suitable where circumstances of elderly person may change – discretion to exercise jurisdiction not enlivened.

VEXATIOUS PROCEEDINGS – s 8, Vexatious Proceedings Act 2008 (NSW) – principles at [116]ff – elderly mother sues, and is sued by, her son in relatively equal measure – son seeks guardianship and financial management orders in NCAT and fails – unsuccessful appeal to this Court – son files second NCAT application citing fresh evidence – whether the various proceedings were “vexatious” – whether son and wife had “frequently” instituted such proceedings – requisite elements not established.

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (No 2) (NSW) ss 16, 28, 29, 45, 55(1)(b)

Guardianship Act 1987 (NSW)

NSW Trustee and Guardian Act 2009 (NSW)

Powers of Attorney Act 2003 (NSW)

Vexatious Proceedings Act 2008 (NSW), ss 4, 5, 6, 8(1)

Cases Cited:

Alexakis v Health Care Complaints Commission [2021] NSWCA 217

Attorney General for NSW v Gatsby [2018] NSWCA 254

Attorney-General (NSW) v Wilson [2010] NSWSC 1008

Australian Competition & Consumer Commission (ACCC) v Auspine Ltd (2006) 235 ALR 95; [2006] FCA 1215

AW v WW [2023] NSWSC 724

BDK v Department of Education and Communities [2015] NSWCATAP 129

Brogden v Attorney-General [2001] NZCA 208

Brown v Brown [2022] NSWSC 16

BTH v Public Guardian [2017] NSWCATAP 10

Collier v Attorney-General (NSW) [2023] NSWCA 273

Commissioner of Police v EMB [2022] NSWCATAP 85

Council of Law Society of NSW v Clarke [2017] NSWCATOD 142

Council of New South Wales Bar Association v de Robillard [2022] NSWCATOD 122

Council of the Law Society of New South Wales v McGlinchey [2021] NSWCATOD 147

Council of the NSW Bar Association v Archer (2008) 72 NSWLR 246; [2008] NSWCA 164

Department of Health & Community Services v JWB & SMB (“Marion’s Case”) (1992) 175 CLR 218; [1992] HCA 15

Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129

Director-General of the Department of Community Services v Priestley [2004] NSWSC 639

Doherty v Allam (1878) 3 App Cas 709

GR v Secretary, Department of Communities and Justice [2020] NSWSC 739

Grassby v The Queen (1989) 168 CLR 1

Health Care Complaints Commission v Grygiel [2019] NSWCATOD 123

Health Care Complaints Commission v Karunaratne [2018] NSWCATOD 137

Health Care Complaints Commission v Kirby [2019] NSWCATOD 47

Jackson v Sterling (1987) 162 CLR 612

Lindsay v Health Care Complaints Commission [2005] NSWCA 356

Mahmoud v Attorney-General of New South Wales [2017] NSWCA 12

Minister for Education and Early Childhood Learning v Zonnevylle (2020) 103 NSWLR 91

Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398

Potier v Attorney-General in and for the State of New South Wales [2015] NSWCA 129

Proietti v Prioetti [2024] NSWCA 48

Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79

Re Eve [1986] 2 SCR 388

Re Frances and Benny [2005] NSWSC 1207

Re Frieda and Geoffrey [2009] NSWSC 133; (2009) 40 Fam LR 608

Re M (No 4) - BM v Director-General, Department of Family and Community Services (named Department of Community Services in Summons) [2013] NSWCA 97

Re Victoria [2002] NSWSC 647

Siteberg Pty Ltd v Maples [2010] NSWSC 1344

Smith v Backhouse [2023] EWCA Civ 874

Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125

Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150

Viavattene v Attorney General (NSW) [2015] NSWCA 44

Wellesley v The Duke of Beaufort (1827) 2 Russ 1

Zenith Logistics Services (UK) Limited v Keates [2020] 1 WLR 2982

Zepinic v Chateau Constructions (Aust) Ltd [2018] NSWCA 317

Category:

Principal judgment

Parties:

WW (Plaintiff)
AJFW (First Defendant)
MW (Second Defendant)

Representation:

Counsel:
RD Marshall SC / NJ Olson (Plaintiff)
FM Douglas KC / J Douglas (Defendants)

Solicitors:
MacRae Lawyers (Plaintiff)
Swan Lawyers (Defendants)

File Number(s):

2024/177066

JUDGMENT

1. The plaintiff is a 90 year old woman. The defendants are the plaintiff’s only son and his wife. (The parties are referred to in these proceedings by the pseudonyms WW, AJFW and MW respectively.) Relying on the parens patriae jurisdiction or, alternatively, s 8 of the Vexatious Proceedings Act 2008 (NSW), the mother seeks an order prohibiting her son and daughter-in-law from instituting any proceedings in New South Wales against or concerning her, including under the Guardianship Act 1987 (NSW).

2. Further, the mother seeks a permanent stay of proceedings recently commenced by her son and daughter-in-law in the Guardianship Division of New South Wales Civil and Administrative Tribunal (NCAT), seeking the appointment of a guardian and financial manager for her. The mother seeks the costs of these proceedings on an indemnity basis.

3. The mother relied on a short affidavit by herself, together with an affidavit by her solicitor, Hamish MacRae, and a report from psychologist, Tim Watson-Munro. None were required for cross-examination. The son and daughter-in-law relied on an affidavit by the son, who was cross-examined. No adverse credit finding was sought, nor made.

FACTS

4. Given the relief sought, it is necessary to consider the procedural history between the parties, which of those proceedings can be considered vexatious, and whether it can be said that the son and daughter-in-law have “frequently” undertaken such proceedings. None of what follows should be taken as a finding of fact binding NCAT in the proceedings now before it.

5. The mother hails from England. On immigrating to Australia in the 1950s, she met and married her husband. Some years later, the couple welcomed the arrival of their only child, the son. In the 1980s, the husband retired but continued to dabble in shares. The couple bought a house in Coogee. In the 1990s, a family company was incorporated: father and son were directors; all were shareholders. The company operated as a family trust from which some family costs were paid.

6. The son married. In the 2000s, the son and daughter-in-law bought a property in Sylvania and built a home, where they lived with their three boys. The eldest son becomes relevant; I will call him grandson “A”. In the years which followed, the family company paid private school fees for the grandsons, so that they could attend the same school as their father and grandfather had before them. In 2003, the mother and her husband made wills. The mother appointed her husband and son as executors and enduring attorneys. The mother left her estate to the son.

7. In 2010, the mother and her husband sold their Coogee home and bought a four-bedroom house in Cronulla (Parents’ house). The son and daughter-in-law sold their house in Sylvania and bought a three-bedroom house nearby (Son’s house). The parents moved into the Son’s house while the son, daughter-in-law and three children moved into the Parents’ house. According to the son, it was agreed that the son and his family would live in the bigger house. His parents also said that they would bequeath the Parents’ house to him. In 2010, the mother executed an Enduring Power of Attorney, again appointing her son as her enduring attorney. By late 2010, however, the clinical notes of the mother’s GP began to record problems that the mother said she was having with her daughter-in-law.

8. In 2015, the father passed away. While the father had, to that point, managed the finances for the mother, the son took on that responsibility. The mother also gradually moved in with her son and his family, initially in the main bedroom upstairs but later in a granny flat downstairs. The son said his mother made the final move after she had a fall at home and was on the floor for several hours. The Son’s house was sold.

9. According to the mother’s GP, the mother’s relationship with her daughter-in-law “and sometimes with her son” deteriorated severely at the end of 2020 and early 2021 “largely around moving from her previous residence to share accommodation with her son”. A particular problem was that the son proposed to undertake renovations to improve the facilities in the granny flat, which did not have a kitchen or microwave. In order to install a kitchenette, it was necessary to remove internal stairs connecting the granny flat to the upper level, where the son lived with his family. The mother could still access the upper level but by external stairs.

10. The mother wrote a letter to her son objecting to the removal of the internal stairs, “I have found it most difficult doing changes without letting me know: - re the stairway etc to make my room more private. I do not like to be shut away from my family. The outdoor steps are a big challenge to me with the wind and rain at times”. The son said that he never received this letter but agreed that it was his mother’s handwriting. The son said he had discussed the renovations with his mother frequently and he understood that his mother wanted the renovations to be done, “I had constant conversations with my mother about what to expect and she was in good spirits as to what the final outcome would be.”

11. In late January 2021, the mother presented to her GP with a neighbour, retired solicitor Karen Ball, and advised that she was going to “see a lawyer about elder abuse … she told me her son was her power of attorney and was going ahead with renovations of her house contrary to her clearly expressed wishes”. The GP’s notes record that the renovations included removing the internal stairs from the granny flat to upstairs, “She said her Daughter in law seems to hate her.”

12. The mother obtained a referral from the Law Society of New South Wales to a solicitor in Cronulla, Kelvin Solari, who she met on 27 January 2021. On 29 January 2021, the mother executed a new Will. On 3 February 2021, the mother revoked the Enduring Power of Attorney in respect of her son. The GP’s notes also record a visit from the mother, who said she had told her son that she didn’t want him to proceed with the renovations and he said he would not let her see her grandsons.

13. Things came to a head on 5 February 2023, when the builders began work. According to Mr Solari’s evidence to NCAT, he attended the Parents’ house and served the son with the revocation of his power of attorney, gave the builder a copy of the certificate of title and demanded that the builder cease work. The police were called. Mr Solari said that, at the end of the incident, the mother was locked out of the house and had nowhere to go. He felt sorry for the mother and invited her to stay with him.

14. The son said that, after Mr Solari arrived and told him that the power of attorney had been revoked, the son saw his mother sitting on a stone wall on the front boundary of the property in her nightgown and dressing gown, speaking with Ms Ball and others. The son went up to his mother to speak to her, but Mr Solari said he did not want him to speak to his client. The son said that she was his mother; the son spoke to his mother but she did not answer him. The son went back into the house and this was the last time that he saw or spoke to his mother. The next day, 6 February 2021, the mother retained Justin McCarthy as her accountant and also appointed him as her enduring attorney.

15. The son said it came as a surprise that the mother had “suddenly changed her mind” about the renovations, “over the course of the months that my mother was staying there, she never objected to having any renovations performed [before she was] introduced to Mr Solari.” The son said he believed that his mother overreacted. Ms Ball introduced his mother to Mr Solari “and things have snowballed from there”.

Mother’s first and second proceedings in this Court

16. On 11 February 2021, the mother commenced proceedings in this Court against her son and daughter-in-law, seeking orders preventing them from entering the Parents’ house or contacting her, together with orders for access to the books and records of the family company. An affidavit in support of the Summons was made by Mr Solari. The mother also commenced separate proceedings in this Court concerning payments from the family company.

17. On 12 February 2021, the son wrote to his mother, begging her to please come home, “I love you. … No renovations have been done.”

18. On 16 February 2021, I made interim injunctions in the form proposed by the mother and referred the parties to mediation. Having reviewed the transcript of that hearing, I am reminded that the only point on which the parties put forward different arrangements was as to who should be living in the Parents’ house in the two weeks before the mediation was held. The son had been leasing a small apartment near the boys’ school in the eastern suburbs, where the three boys and their mother lived during the week and returned to Cronulla on weekends. The practicalities of the whole family (and pet) living in the apartment full-time presented some difficulties. In addition, the son was concerned at the prospect of the mother living in the Parents’ house alone, for example, if she had another fall. Against this, the mother was then staying at Mr Solari’s home and was not prepared to return to the Parents’ house absent exclusive possession. In the short period before the mediation, I visited the burden of inconvenient living arrangements on the son and his family rather than on the mother (and Mr Solari).

19. On 5 March 2021, the mediation began. The mother did not attend but gave instructions from her counsel’s chambers. The mediation was adjourned. On 16 March 2021, the son lodged a caveat on the Parents’ house, claiming an equitable interest on the basis of representations made by his parents that the property would be his on their passing.

20. On 26 March 2021, the mediation resumed. Again, the mother did not attend but gave instructions from her counsel’s chambers. According to Mr MacRae, on hearing from Mr Solari that he had seen the son in the street, the mother panicked and fainted and was taken to hospital. I have treated Mr MacRae’s evidence with some circumspection, where I can find no record of him having acted for the mother before September 2022.

21. On 19 April 2021, the mother filed a Statement of Claim.

Settlement of first and second proceedings

22. On 11 May 2021, the mother’s first and second proceedings were resolved by a deed of settlement. In short, the son acknowledged his mother’s ownership of the Parents’ house and agreed to pay out a mortgage over the property. He also agreed to buy out his mother’s interest in the family company. The parties also gave mutual releases.

23. As part of the settlement, the son and daughter-in-law also agreed to give undertakings to the Court in the following terms:

“The Court notes the undertakings given to the Court by the [son and daughter-in-law] as follows:

(a)   the [son and daughter-in-law] shall not directly contact the [mother] without the prior written consent of the [mother] indicating that she has consulted with her solicitor about the matter and approves of the contact;

(b)   the [son and daughter-in-law] shall not enter the [Parents’ house] (for so long as the [mother] is the registered proprietor of …) without the prior written consent of the [mother] indicating that she has consulted with her solicitor about the matter and approves of the entry to the premises,

subject to any written agreement by the [mother] to a relaxation of these limitations (noting that such agreement must follow the [mother] consulting her solicitor about it). For the avoidance of doubt, the undertakings in 2(a) and 2(b) do not apply to any communication from the [son and daughter-in-law] to the [mother] in response to a communication from the [mother] requesting or approving contact or entry (as the case may be) for the purpose of clarifying whether the [mother] has consulted with her solicitor about the matter or otherwise clarifying any terms or conditions of the approval.”

24. The matter was listed before Henry J on 20 May 2021, when the parties sought consent orders to effect the settlement. The mother’s senior counsel informed her Honour, “The emotional and social problems encountered by this family are partially dealt with by the undertakings to be given by the [son and daughter-in-law] and I think that all concerned hope that the measures that have been agreed to can lead to this family getting back together at some stage.” Further, in respect of the undertakings, “the aim there is, if possible that there may be some renewed contact between this family.”

25. The son and daughter-in-law’s barrister informed the Court that his clients understood the undertakings that they were giving. Counsel added, “the final resolution of this is for the parties to resolve these proceedings in a way which would hopefully allow them to come back together and ideally not allow these proceedings to interfere with the relationships between them … the plaintiff is the mother and the first defendant is her son”.

26. Her Honour agreed to make the orders and note the undertakings, observing that the parties had agreed to resolve the proceedings “with a view to hopefully allow the plaintiff, who is the mother of the first defendant, and the first defendant’s relationship to one day get back on track.”

27. The son agreed that he had solicitors at the time that the Deed of Settlement was executed but “we were poorly advised”. Further, “I don’t believe my mother fully understood what the deed included. Neither did I for that matter.” The son said he believed that this would put an end to the disputes between them. The son hoped he could resume his relationship with his mother.

28. The son withdrew his caveat. In June 2021, the son and his wife attended at the Parents’ house to remove their family’s personal possessions. Mr Solari attended as the mother’s representative.

Tentative contact

29. In August 2021, the mother sent a note to the “family”, thanking them for a birthday card, “Hope you are all well?”. The mother addressed the envelope to the son. The son responded in a conciliatory letter, noting his understanding though “Soula” (the mother’s life-long friend) that the mother had “spoken to your solicitor about contacting me and seeking the boys and I”, expressing his sadness at not having seen his mother for nearly eight months and his wish to see her. The son said that he wrote a letter to his mother on the assumption that his mother had received confirmation from her solicitor that he could contact her.

30. In September 2021, Mr Solari wrote to the son’s solicitor to “notify you of a recent breach of the undertakings” and putting the son and daughter-in-law on notice that, if either of them were to breach the undertakings one further time, the mother reserved her right to seek orders that they be found guilty of contempt of court. The son and daughter-in-law were also requested to cease and desist from disturbing the mother’s process of selling the Parents’ House and buying into a retirement village. Mr Solari also complained that the son had contacted a real estate agent that the mother was considering appointing to sell the house, demanding that the property not be listed for sale. Mr Solari also proposed how the family’s remaining possessions at the Parents’ house ought be removed.

29. After receiving the letter from Mr Solari drawing his attention to the undertakings that he had given and threatening to sue him, the son said, “it did worry me and I basically have not written a letter to her since.”

30. The son and daughter-in-law’s solicitor responded, denying that there was any breach of the undertakings in the circumstances, given the mother’s card and other communications. Nor had the son interfered with the mother’s sale of the house. The son and daughter-in-law were, however, interested in buying the Parents’ house and also had concerns for the mother’s wellbeing and her financial welfare; consideration was being given to an application for an independent financial manager “unless they can be satisfied that her affairs are being properly managed by her”.

First NCAT proceedings

33. In September 2021, the son commenced proceedings in NCAT under the Guardianship Act seeking the appointment of a guardian for his mother. In October 2021, the son filed a further application seeking to the appointment of a financial manager as well. In both applications, the son expressed concern that his mother was being isolated from family and friends by Mr Solari and Ms Ball. The son expressed concern that the Parents’ house was being sold so that the mother could move into a retirement village, “which she has never wanted”. He was also concerned that his mother may have early signs of dementia. The son made an extensive statutory declaration in support of the application.

Son’s first proceedings in this Court

34. On 15 October 2021, the son commenced proceedings in this Court seeking to restrain the mother from selling the Parents’ house. An interim injunction was refused in light of the release given by the son in the Deed, which led Rein J to conclude that the son’s claim was “very weak”. Contracts were exchanged for the sale of the Parents’ house the same day for $5.66 million. The son discontinued the proceedings.

35. On 19 October 2021, the mother appointed retired solicitor Kathleen Burton and Mr Solari as her enduring attorneys. The mother later entered into a contract to acquire an interest in a self-care unit in a retirement village. She also used the proceeds of sale of the Parents’ house to establish three investment portfolios, one for each grandson. Mr McCarthy and Mr Solari were appointed as directors of the companies established to implement the trust structure. The son, daughter-in-law, Mr McCarthy and Mr Solari were excluded as beneficiaries of each trust.

36. The NCAT proceedings continued. On 20 October 2021, a directions hearing was held. The Tribunal explored whether legal representation was needed. The mother advised, by telephone, that she needed lawyers to speak for her as she was “too frightened … [of] everything.” Leave was granted for the parties to be represented by lawyers: s 45 of the Civil and Administrative Tribunal Act 2013 (NSW).

37. On 25 October 2021, the son applied for 22 summons to be issued by NCAT, including a summons to Mr Solari on the basis that the solicitor had rendered fees of $300,000 and an issue in the proceedings was whether Mr Solari was in a relationship of undue influence with the mother. On 28 October 2021, NCAT refused to issue the summons on the basis of lack of apparent relevance to the issues to be determined by the Tribunal. On 2 November 2021, the son’s solicitor sought a review of NCAT’s decision in respect of various summons.

38. The NCAT proceedings were re-listed on 24 November 2021 to deal with this matter. The transcript reveals a lengthy, but unremarkable, review of the proposed summons by the tribunal member and the legal representatives for the parties. In respect of the proposed summons to be issued to Mr Solari, the matter was dealt with on the basis that the mother’s senior counsel agreed to provide Mr Solari’s invoices at the hearing; on that basis the member refused that portion of the summons. The balance of the proposed summons, seeking the mother’s Will and the invoice rendered by the removalists who took the balance of the family’s possessions from the Parents’ House, was refused.

39. On 8 December 2021, the son made a further application for a summons to be issued by NCAT to Mr Solari, where additional funds were said to have been authorised to pay the solicitor notwithstanding that the son had already paid a substantial sum into the solicitor’s trust account on behalf of his mother. On 14 December 2021, NCAT issued a summons to Mr Solari for production of his trust account ledger.

40. Meanwhile, on 10 December 2021, the mother’s solicitors wrote to the son and daughter-in-law’s solicitor objecting to numerous contact they “and those associated with them” were said to have made, or attempted to have made, with the mother whilst at Sutherland Hospital. Strict instructions had been given to hospital staff as to who may have contact with the mother whilst in hospital. The list did not include the son, daughter-in-law, the grandchildren and various other family members. Any attempt at contact would be passed on by hospital staff to security.

41. On 17 June 2022, Mr Solari produced redacted copies of his invoices to NCAT. On 24 June 2022, the hearing of the son’s applications began. The mother gave evidence by video-link and was cross-examined by the son’s senior counsel. Some questions were asked about Mr Solari’s legal bills, which the mother objected to answering where the bills were not in front of her. Mr Solari also gave evidence. At the conclusion of the hearing, the son and daughter-in-law’s senior counsel sought production of more recent invoices issued by Mr Solari. Mr Solari was not prepared to produce the invoices voluntarily. After discussion, it was agreed that the son would apply for a further summons to be issued for this material. Directions were also made for the son and daughter-in-law’s solicitor to write with their specific queries in relation to Mr Solari’s charges to the mother. The hearing was adjourned part-heard to 23 September 2022.

42. On 8 August 2022, the son and daughter-in-law’s solicitor sent a letter to the mother’s solicitor, requesting that the material be provided by Mr Solari as discussed at the NCAT hearing. On 14 August 2022, the son applied for a summons to be issued to Mr Solari, as suggested by the Member presiding at the hearing on 24 June 2022. On 28 August 2022, NCAT issued the summons in a revised form. Mr Solari sought to re-list the matter to apply to set aside the summons. On 13 September 2022, the son’s solicitor advised that he was loathe to lose the next hearing day on 23 September 2022 and, unless the application to set aside the summons could be determined before then, would not press the summons. It would appear that, in these circumstances, the summons was not pressed.

43. The Tribunal hearing resumed on 23 September 2022. Mr McCarthy had made a statutory declaration, setting out the financial arrangements made for the mother following the sale of the Parents’ house. Mr McCarthy was cross-examined, as was Mr Solari in respect of some of his legal bills.

44. On 28 November 2022, NCAT made orders dismissing the son’s applications for the appointment of a financial manager and guardian. No reasons were published at the time.

Fresh evidence

45. In January 2023, the mother sent each of her grandsons a card. Presumably encouraged by this, grandson “A” called his grandmother on 15 January 2023 and met with her on 19, 25 and 28 January 2023 at Sutherland Hospital. Perhaps ill-advisedly, the grandson recorded each of these interactions, which were later transcribed. The grandson pressed his grandmother as to why her longstanding friends were unable to contact her. The mother’s answers suggest that “I was told from Kel [Solari] not to … keep in touch with any of your relations, so that’s what I’ve done. … [b]ecause … he told me it was not a good idea …”. The mother agreed that Mr Solari was blocking her from her friends and grandsons.

46. On 6 February 2023, the son and grandson went to the police to make a complaint against Mr Solari, presenting the conversations recorded on the grandson’s phone. On 7 February 2023, the mother’s solicitor demanded an explanation.

Reasons for decision

47. On 10 February 2023, NCAT’s reasons for decision were published. The reasons contained an extensive review of medical notes and reports in respect of the mother, together with the evidence of a large number of witnesses including the mother, the son and Mr Solari. The Tribunal noted discrepancies in the accounts of events as relayed by the mother and son, which “could reflect different perspectives [o]n the same set of circumstances”: at [140].

48. As to whether the mother had dementia, NCAT considered this “to be a finely balanced issue” but was not able to be satisfied that the mother had dementia that resulted in a cognitive deficit that prevented her managing her person: at [141]. The Tribunal was satisfied, however, that the mother suffered from anxiety and depression and that these conditions had the potential to interfere with her ability to manage matters such as her accommodation arrangements and medical treatment. The Tribunal was satisfied that the mother was a person for whom NCAT could make a guardianship order: at [143]-[144].

49. The Tribunal was also satisfied with the existing arrangements made by the mother, being the appointment of Ms Burton and Mr Solari as her enduring guardians, if decisions needed to be made for medical treatment: at [154]. While the son had submitted that Mr Solari was in a position to exert undue influence, NCAT noted that the Legal Services Commissioner was not satisfied that there was sufficient evidence to support that allegation: at [156]. The Tribunal also considered that the actions commenced by Mr Solari on the mother’s behalf in this Court “appear to have had merit and that she was successful in one matter [presumably the son’s application for an interim injunction] and settled the other with the result that she was provided with unfettered rights to the [Parent’s house] and the payment of more than $400,000 for shares”: at [157]. The apparent validity of the claims made on the mother’s behalf reduced the extent to which commencing these proceedings under her instructions could be characterised as exploitative: at [157]. (The Tribunal’s assessment may suggest an imperfect understanding of the proceedings brought by the mother and son in this Court to that point).

50. Nor was NCAT satisfied that Mr Solari was exploiting his professional or personal relationship with the mother by fees and disbursements charged. Nor was NCAT satisfied that there was any evidence that the mother’s estrangement from her son had been inappropriately encouraged by Mr Solari; the mother had told NCAT that this was her idea: at [161]. Nor was the appointment of a different guardian likely to affect the mother’s choices about from whom she sought advice: at [162].

51. The Tribunal considered that the mother and son “had different perceptions about their relationship and about a number of aspects of their life over some time. We are not satisfied that the issues in the relationship were unheralded prior to the renovation issue or are evidence of the need to appoint a guardian”: at [166]. Nor was there a need to appoint a guardian to effect improved family relationships: at [170]. The application for guardianship was dismissed.

52. As to the application for the appointment of a financial manager, NCAT noted that the mother had capacity to instruct in relation to legal matters and had done so in the various proceedings in this Court: at [181]-[182]. She had “successfully confronted a number of highly stressful financial and legal matters” notwithstanding her anxiety and depression: at [185]. The trust arrangement set up to manage her financial affairs was complex but, as a beneficiary of the trust, the mother did not need to understand the complexities but, rather, the effect of the arrangements. The Tribunal was satisfied that the mother understood the structure provided for her to receive an income from the rental of properties and other assets managed by the trust and for her grandsons to benefit after her death: at [190].

53. Whilst NCAT accepted that the solicitor/client relationship between the mother and Mr Solari had blurred boundaries, the evidence fell short of evidence of exploitation by the solicitor: at [191]. The Tribunal was not satisfied that Mr Solari had taken advantage of the mother, nor that the mother lacked the capacity to manage her affairs. The application for the appointment of a financial manager was dismissed.

Appeal from Tribunal’s decision

54. In March 2023, the son filed a Summons in this Court to appeal NCAT’s decision. The son also sought leave to adduce fresh evidence. Grandson “A” put on an affidavit in the appeal proceedings; the fresh evidence was the transcripts of his conversations with his grandmother in January 2023.

55. The son’s solicitors also sought documents in respect of the mother’s trusts, as disclosed in the NCAT proceedings. The mother’s solicitors declined. Grandson “A” then sought the material from the trustee and the mother’s solicitor, where one of the trusts had been established to benefit him. This request was also declined.

56. In April 2023, the son caused subpoenas to be issued to various hospitals. The mother filed a motion seeking to set aside the subpoena. In May 2023, the son’s solicitor made an affidavit setting out her efforts to obtain documents in relation to the trusts.

57. On 7 June 2023, the appeal proceedings were listed for directions before Lindsay J, who expressed concern that the appeal proceedings were an attempt to run a fresh application. His Honour was thus resistant to allowing the subpoenas to be issued and for the hearing to run on the basis that it was a fresh application, adding “There’s no bar upon a fresh application being made to NCAT – whether or not it would be treated as an abuse of process if it merely was a rerun of a previously one is a matter for the Tribunal.” The son’s senior counsel submitted that the call on the subpoena would be confined to more recent material. His Honour queried whether the appeal process was where any deterioration in the mother’s condition should be investigated.

58. On 7 June 2023, the son filed an Amended Summons, seeking a declaration that the mother was incapable of managing her affairs and an order that her estate be subject to management under the NSW Trustee and Guardian Act 2009 (NSW). Various questions of law were said to arise from the manner in which NCAT had considered, or failed to consider, evidence going to this subject. Further, documents in respect of the trust were said to indicate that the nature of the trust was other than as the mother understood.

59. The application for leave to appeal on grounds other than a question of law was heard by Lindsay J on 26 and 27 June 2023. On 27 June 2023, his Honour refused leave as, if granted, it would “cause unnecessary stress to an already fragile defendant by forcing her into the witness box to canvass topics which, as recorded in the reasons for decision of the Tribunal, have already caused her considerable distress … the defendant’s welfare and interests are likely to be best served by confining the … appeal to questions of law”: AW v WW [2023] NSWSC 724 at [23]-[24].

60. In September 2023, the mother’s solicitors sent an open and without prejudice offers to the son’s solicitors, which was not accepted. On 3 October 2023, the mother made a Calderbank offer. On 15 October 2023, the son made an open offer to settle the appeal proceedings on the basis that Mr Solari retire as the mother’s enduring guardian, with Ms Burton to remain in that role. Further, the mother would provide documents in respect of the trusts established for her three grandchildren. The son and grandson “A” sought to be advised promptly if the mother became unwell, and to also know her current residence and state of health. Subject to agreement on these matters, the son proposed that the Summons be dismissed with an order that he pay the mother’s costs. The next day, the appeal was heard before Kunc J.

61. On 6 November 2023, the son repeated his offer. In December 2023, however, the son pressed to collect the family’s remaining possessions or to receive payment of some $116,000 for the value of the goods. This did prompt a response from the mother’s solicitor in a letter that could hardly be described as conciliatory.

62. On 23 February 2024, Kunc J dismissed the appeal, essentially on the basis that the questions of law said to be raised by the appeal were not pure questions of law but required the Court to investigate the facts before NCAT on, in reality, a merits review.

63. On 6 March 2024, Mr MacRae made an affidavit in support of an application for costs of the appeal proceedings, having regard to “adversarial conduct” said to have been displayed by the son. Mr MacRae made a second affidavit on 8 March 2024, together with detailed written submissions in respect of costs. On 28 March 2024, Kunc J ordered the son to pay the mother’s costs of the proceedings on an ordinary basis until 3 October 2023 and on an indemnity basis thereafter on the basis of non-acceptance of a Calderbank letter.

Second NCAT proceedings

64. On 8 March 2024, the son and daughter-in-law filed a fresh application in NCAT for financial management and guardianship orders in respect of the mother. In a cover letter to NCAT, the son and daughter-in-law advised that they were not “attempting to have a re-run” of the first NCAT proceedings but to rely on fresh evidence postdating the last day of hearing on 22 September 2022. The son and daughter-in-law proposed to represent themselves. This is the proceedings which the mother seeks to have permanently stayed.

65. In the application form, the son advised that he believed his mother was being “financially and psychologically abused and isolated from all family and lifelong friends”. He expressed concerns that his mother’s health had deteriorated. On 9 March 2024, the daughter-in-law made a statutory declaration describing events since the NCAT hearing on 22 September 2022.

Mother revives the first proceedings in this Court

66. On 18 March 2024, the mother filed a motion in the first proceedings commenced in this Court, seeking to restrain the son and daughter-in-law from: making direct contact with her in the course of conduct of proceedings in NCAT, including speaking to her, whether alone or with others; questioning her as a witness; writing to her; serving her with any documents; or being present in the same room as the plaintiff. As final relief, the mother sought a declaration that the undertakings given by the son and daughter-in-law to the Court in May 2021 prevented them from having direct contact with her in the conduct of Tribunal proceedings. A permanent restraint was sought. The motion contained “IMPORTANT INFORMATION FOR THE FIRST AND SECOND DEFENDANTS” noting that although no statement of charge was then provided “because at the time of filing it is not alleged that there has yet been any contempt of Court by you” it was suggested that their conduct of proceedings in NCAT may breach the undertaking and give rise to contempt.

67. Also on 18 March 2024, the mother’s consultant psychologist reviewed the mother via telehealth facilities. The mother was on medication for anxiety and depression. Given recent events, the mother missed her grandchildren but said she was afraid to see them as they would “go back and talk to [her] son”. The mother said she would not be able to participate in the second NCAT proceedings without legal representation; the prospect of doing so was escalating her anxiety and depression. The second NCAT proceedings had had a significant and debilitating impact on her morale. The psychologist believed that direct exposure to her son and his wife would lead to a severe exacerbation of her ongoing symptomology. The mother expressed a strong desire to have no contact with her son or to be placed in an NCAT hearing room with him or being required to support her case without a lawyer. The psychologist was of the view that, if the mother was compelled to partake in further proceedings in NCAT, she would require ongoing frequent psychological attention as a matter of urgency.

66. On 19 March 2024, the son and daughter-in-law each made an affidavit in the first proceedings. The mother’s motion was heard on 21 March 2024 by Hammerschlag CJ in Eq. The son and daughter-in-law appeared in person. They confirmed that they had no intention of doing any of the things suggested in the mother’s motion, save that it was a matter for NCAT whether they were present in the same hearing room as the mother. The son and daughter-in-law gave undertakings to his Honour to that effect. Where there was no utility in the motion, his Honour dismissed the motion with the costs to follow the outcome of the second NCAT proceedings.

67. Grandson “A” continued to press for trust documents but was having no success. In April 2024, various friends of the mother began to make statutory declarations in respect of the second NCAT proceedings, on behalf of the son and daughter-in-law, in respect of their inability to contact the mother. The son also made a detailed statutory declaration.

Mother again revives the first proceedings in this Court

70. On 16 April 2024, the mother filed a further motion in the first proceedings, seeking to vary the orders made by Hammerschlag CJ in Eq on 21 March 2024. Mr MacRae filed an affidavit in support.

71. On 17 May 2024, Black J made orders by consent, varying the orders made by Hammerschlag CJ in Eq on 21 March 2024. The son and daughter-in-law gave an undertaking that, subject to any further order of the Court, each of them would not make direct contact with the mother in the course of the conduct of the second NCAT proceedings. The mother’s motion to vary the orders was otherwise dismissed. Black J noted that, as the undertakings had been given and accepted by Hammerschlag CJ in Eq, “It is not necessary for me to form any view as to whether the matters stated could properly have been the subject of injunctive relief or could property have been accepted as undertakings, because that is a matter that has already been determined.”

72. However, Black J did note the potential practical difficulties which the undertakings may cause if the son and daughter-in-law were self-represented. Their inability to be personally present in the same room as the mother may make it impossible to afford procedural fairness to the son and daughter-in-law in legal proceedings. The Court would not likely force the son and daughter-in-law to appear by audio visual means if they wished to appear in person. “In those circumstances, at least where proceedings were, as here, commenced by the [mother], the undertaking may have the perverse result of making it impossible to hear from [the son and daughter-in-law] because procedural fairness could not be afforded to them and raise the risk that the proceedings would be stayed”. Further:

“a matter may still arise in respect of the effect of the undertaking, as to how it interacts with the Defendants’ entitlement to be present in Court as parties to the proceedings, which is no less real than the Plaintiff’s entitlement to be present as a party to the proceedings, and which is an incident of the open administration of justice. … if the Defendants which to be present and are prevented from being present by the undertaking, then a more difficult question will arise.”

73. I agree. The undertakings were not drafted with a view to addressing what should happen in the event that further legal proceedings ensued between the parties. The undertakings are ill-suited to such an eventuality. The undertakings have other drafting problems. For example, it is unclear whether the mother must merely consult with her solicitor before contacting her son and daughter-in-law, or whether the solicitor has to approve their contact. As Besanko J observed in Australian Competition & Consumer Commission (ACCC) v Auspine Ltd (2006) 235 ALR 95; [2006] FCA 1215, “in the same way as an injunction must be couched in clear and unambiguous language, so must an undertaking. … An undertaking should not be accepted if it is vague and uncertain or if enforcement is likely to prove impossible”: at [29].

74. Nor do the undertakings have the imprimatur of the Court, in the sense that the undertakings were not required by the Court after a determination of the mother’s allegations and any defence to those allegations. While the correspondence and notes which formed part of the mother’s case were scattered with references to “elder abuse”, it must be borne firmly in mind that those allegations were not examined or determined by this Court. Although the mother submitted that the son’s agreement to the terms of the Deed amounted to an acknowledgement of the truth of the mother’s allegations, another view of the matter is that the son recognised that his mother was extremely upset by recent events and sought to appease his mother with a view to sorting out their relationship post haste.

75. As Warby J observed in Zenith Logistics Services (UK) Limited v Keates [2020] 1 WLR 2982, a Court order giving effect to terms of settlement “does not represent endorsement or approval of those terms, or a conclusion that they are enforceable”: at [67]. Rather, the position is as described by Lord Cairns LC in Doherty v Allam (1878) 3 App Cas 709 at 720:

“If parties, for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a Court of Equity has to do is to say, by way of injunction, that which the parties have already said by way of covenant, that the thing shall not be done; and in such a case the injunction does nothing more than give the sanction of the process of the Court to that which already is the contract between the parties.”

This observation, although made in the context of a consent injunction, holds true in respect of an undertaking accepted by the Court, which is equivalent to an injunction when it comes to enforcement.

76. As Black J adverted, the court has a discretion whether to accept undertakings, which is governed by the same principles as those that apply when approving an injunction by consent. In Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, Gibbs CJ, Stephen, Mason and Wilson J explained at 164-165: (citations omitted)

“… The power to accept and to enforce an undertaking is … ‘an invariable attribute of a superior court whose proceedings are protected by rules relating to contempt of court and is inherent in the grant of jurisdiction to grant injunctive relief’. An undertaking to the court is given in lieu of an injunction and, if broken, is treated as the equivalent of an order for the purpose of enforcement; it may therefore be enforced in the same manner as an injunction …

As an undertaking is given in lieu of an injunction and is enforceable in like manner, the principles which govern the grant of an injunction by a court must guide it in deciding whether it should accept an undertaking. Limitations which affect the court’s jurisdiction or power to grant a final injunction must be observed … The court cannot put itself in the position of enforcing conduct which it has no capacity to command or compel. …”

77. Recently, in Smith v Backhouse [2023] EWCA Civ 874, the Court of Appeal of England & Wales described the circumstances in which the court may decline to accept undertakings which form part of a settlement agreement as “limited”: at [33], [50]. That may be so, but I pause to contemplate how the Court may command or compel compliance with undertakings that the son and daughter-in-law desist from contacting the mother outside the curious regime there described, particularly where the parties proffered the undertakings to the Court as an interim measure intended to facilitate a restoration of relationship between family members. Instead, the undertakings have effectively prevented any resumption of family relations through ordinary channels of communication.

These proceedings

78. On 29 April 2024, the plaintiff saw a new GP, who provided a medical report noting that the mother suffered from anxiety, depression and claustrophobia and did not perform well under stressful conditions. The second NCAT proceedings were believed to have caused the mother to be very stressed, worsening these conditions. Stressful conditions involving litigation could potentially cause a deterioration in the mother’s physical health and potentially be fatal. Avoiding this would be in the mother’s best interest. I attach little weight to the GP’s opinion as to the prospect of a fatal outcome, when the GP lacked apparent expertise to express such a view and had just met her patient.

79. On 10 May 2024, the mother made an affidavit in preparation for commencement of these proceedings, in frail handwriting:

“I would like to see my son and to tell him that I still love him

I would like to see the end of the Court the cases, I want so much to see my grand children, I have confidence in Justin McCarthy Justin is my accountant. I don’t know what I would have done if I did not see Kell [Solari]

I now have a new GP, I chose her

I find Court Cases about me most stressful.

I am crying just to thinking about Court Cases

It is my wish to be able to see Alexander & the boys when all the Court Cases are finished”

80. I note that the mother’s expressed wish to see her family remains conditional upon cessation of legal proceedings.

81. On 13 May 2024, the mother filed a Summons in these proceedings ex parte before the Equity Duty Judge. By way of interim relief, the mother sought an order staying the second NCAT proceedings. In support of the application, Mr MacRae made an affidavit setting out the history of litigation between the parties.

82. On 23 May 2024, the son swore an affidavit in these proceedings, deposing that he and his wife had made the second application in NCAT as he wished to be able to visit his mother and spend time with her. In cross-examination, the son said he had commenced the second NCAT proceedings as he understood from comments made by Lindsay and Kunc JJ that that was where he should proceed. He brought the proceedings as he loved his mother and wished to ensure that her welfare was maintained and that her financial arrangements were appropriate. The son was concerned that his mother was being mis-advised and opposed her current legal team continuing to represent her in those proceedings, although did not oppose the appointment of independent lawyers.

83. The son said in cross-examination that he accepted NCAT’s findings, although he did not agree with some of their conclusions. The son was concerned that the trust established by Mr McCarthy may not reflect his mother’s understanding or instructions, in particular, where the trusts were of a discretionary nature. The son said his main concern was that he should be able to see his mother, as should his family and his mother’s friends. The son wished to rely on matters which had occurred since the last Tribunal hearing but accepted that some of the material attached to the application was also before NCAT on the last occasion, “I thought it pertinent to include a little background history.”

84. The son said that the second NCAT application was “to relieve my mother from the grips of the current legal team.” The son did not believe that Mr Solari had his mother’s best interests at heart and wanted an independent financial manager to be in charge of her affairs. The son considered that Mr Solari’s legal bills should be reviewed, where some of the entries were considered questionable. The son was clearly mistrustful of Mr Solari and intended to seek compensation from the solicitor for damage to his family’s possessions moved from the house to a storage facility.

Submissions

85. The mother submitted that she was found by NCAT to be a person to whom a guardianship order could be made as she suffers from conditions of anxiety and depression, such as to be a disability. The Tribunal refused to make a guardianship order, because she has appointed two Enduring Guardians and there was no need to appoint a guardian instead of them. The Tribunal found that the plaintiff was able to give instructions to her lawyers in the various legal proceedings affecting her. However, the medical evidence suggested that proceedings brought by her son will be productive of stress and potentially fatal. While NCAT also found that the mother did not suffer from dementia, it was nonetheless submitted that the mother is a person in need of the Court’s protection against the use by the son and daughter-in-law of court and tribunal processes against or about her.

86. The mother submitted that these were exceptional circumstances in which the parens patriae jurisdiction ought be exercised: ReVictoria [2002] NSWSC 647 at [40] (Palmer J); Re Frances and Benny [2005] NSWSC 1207 at [18] (Young CJ in Eq); Brown v Brown [2022] NSWSC 16 at [7] (Kunc J). The Court’s reluctance to exercise the parens patriae jurisdiction where it is more appropriate for a specialist court or tribunal, or appellate body to deal with the matter was said to generally arise where there has already been a decision made by court or tribunal and an applicant in Equity seeks to relitigate in the Court’s parens patriae jurisdiction matters already determined: Re Victoria at [36]-[40]. This was not such a situation.

87. Litigation brought by the son and daughter-in-law was said to be repetitive and vexatious, given the mother’s disability and great age. The vexatious conduct was said to include the son’s repudiation of the release he gave in the Deed of Settlement and Release entered into by the parties on 11 May 2021 and tendered to Henry J on 20 May 2021, such repudiation evidenced by his commencement of the proceedings in this Court. In the first NCAT proceedings, it was said to include three unsuccessful attempts to subpoena documents from Mr Solari. In the appeal against NCAT’s decision, it was said to include subpoenas issued to two hospitals for records going back to 2020 and resulting in production of about 5,000 pages of medical records. Also in the appeal was the unsuccessful application to rely on an affidavit of grandson “A” deposing to conversations with the mother in a hospital ward whilst she was recovering from an operation. There was no question of law in the grounds of appeal, yet the appeal was unsuccessfully pressed.

88. The mother submitted that the second NCAT proceedings were very similar to the first. Further proceedings were threatened in respect of the son’s chattels left in the Parents’ house. The mother submitted that the son and daughter-in-law’s conduct was aggravated by the scandalous content of the statutory declaration made by the son and filed in the second NCAT proceedings. This was said to include baseless allegations and other unkind comments about practitioners and others retained, appointed or otherwise close to the mother.

89. Alternatively, the mother sought relief under s 8 of the Vexatious Proceedings Act, relying on Attorney-General (NSW) v Wilson [2010] NSWSC 1008 where Davies J suggested that a small number of vexatious proceedings might satisfy s 8(1): at [13]-[14]. His Honour there applied the observations in Brogden v Attorney-General [2001] NZCA 208 on the comparable New Zealand legislation, which required that a person had “persistently instituted” vexatious proceedings. I note, however, that the Court of Appeal expressed caution in respect of Attorney-General (NSW) v Wilson, where care must be taken “before importing the approach taken to different statutory language” in construing s 8(1): in Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [48]; see the current caselaw at [127].

90. The mother submitted that NCAT did not have jurisdiction to make all of the final orders sought in these proceedings. At most, NCAT could make orders dismissing the second Tribunal proceedings under section s 55(1)(b) of the Civil and Administrative Tribunal Act. Such an application would be dealt with by NCAT “conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings” and the applicability of the General Steel principles: BDK v Department of Education and Communities [2015] NSWCATAP 129 at [66]. NCAT may, therefore, be reluctant to accede to such an application where it might be argued by the son and daughter-in-law that there was fresh evidence to be heard.

91. The son submitted that the parens patriae jurisdiction is only to be exercised in exceptional circumstances, and this was not such a case. It is the type of matter which NCAT deals with on a daily basis. The Tribunal has power under s 55(1)(b) of the Civil and Administrative Tribunal Act to make orders dismissing the second NCAT proceedings if thought fit. This is an application to effectively oust of the jurisdiction of NCAT. The orders sought would operate as a permanent stay, whatever the circumstances, where a stay was sought not only of these proceedings, but all future proceedings.

NCAT’s power to stay or dismiss proceedings

92. Accepting that the Tribunal does not have power to make an order under the Vexatious Proceedings Act, it is necessary to consider the extent of NCAT’s powers to permanently stay or dismiss the second NCAT proceedings.

93. As a statutory tribunal, NCAT has the powers conferred by its statute and the provisions of any enabling legislation which bestows jurisdiction and power on the Tribunal: see ss 28(2)(a), 29, Civil and Administrative Tribunal Act. NCAT comprises various divisions, including the Guardianship Division: s 16(1), Civil and Administrative Tribunal Act. The functions of NCAT under the Guardianship Act, NSW Trustee and Guardian Act and Powers of Attorney Act 2003 (NSW) are allocated to the Guardianship Division: s 16(2) and Sch 6, Pt 3, s 3(1), Civil and Administrative Tribunal Act.

94. In the Tribunal’s “general jurisdiction”, NCAT has jurisdiction “to make … interlocutory decisions of the Tribunal in the proceedings”: s 29(2)(a), Civil and Administrative Tribunal Act. Section 4(1) of the Civil and Administrative Tribunal Act relevantly defines “interlocutory decision” as:

“interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following—

(a)    the granting of a stay or adjournment,

…

(h)    the summary dismissal of proceedings,

…

(i)    any other interlocutory issue before the Tribunal.”

95. The functions allocated to the Guardianship Division include any functions conferred on the Tribunal under the Civil and Administrative Tribunal Act in connection with the conduct of such proceedings “including the making of … interlocutory decisions of the Tribunal”: Sch 6, Pt 3, s 3(2)(b).

96. Part 4 of the Civil and Administrative Tribunal Act deals with “Practice and procedure”. Section 36 sets out the guiding principle to be applied, being “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”. Section 38(1) provides that the Tribunal “may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.” Division 4, of Pt 4, concerns “Conduct of proceedings” and concludes with s 55:

“55    Dismissal of proceedings

(1)   The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances—

…

(b)   if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,”

97. There is conflicting authority as to whether NCAT has the power to grant a permanent stay of its own proceedings. In Lindsay v Health Care Complaints Commission [2005] NSWCA 356, Hunt AJA doubted whether the Tribunal had jurisdiction to stay proceedings before it on the basis that the proceedings were an abuse of process. The legislation then considered was the power of the former Medical Tribunal created by the Medical Practice Act 1992 (NSW), pre-dating the Civil and Administrative Tribunal Act, and containing no express power. Hunt AJA considered there may be no need to imply such a power, when the Supreme Court has the power to stay proceedings in such cases: at [73]-[78]. In Council of the NSW Bar Association v Archer (2008) 72 NSWLR 246; [2008] NSWCA 164, Hodgson JA considered that it remained possible for NCAT to stay proceedings, notwithstanding the doubts expressed in Lindsay, noting “In my opinion it is not clear that it could not do so: at [40]. These early observations are of little assistance where their Honours were concerned with predecessor, and quite different, legislation.

97. The current legislation was considered in BTH v Public Guardian [2017] NSWCATAP 10, where the Tribunal noted that the granting of a stay was defined in the Act as an interlocutory decision and “[t]he stay power conferred … does not extend to ordering a stay which permanently ends the proceedings”: at [49]-[50].

98. A different view was taken in Council of Law Society of NSW v Clarke [2017] NSWCATOD 142, where the Tribunal concluded that it had both an express and implied power to grant a permanent stay of proceedings which amounted to an abuse of process. As to the express power, the Tribunal was empowered to make interlocutory decisions as defined in s 4, where the reference to “stay” was “not qualified in any way having regard to whether it is permanent or not”: at [50]. As to an implied power, the Tribunal followed Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129, where Mason P concluded that the former Administrative Decisions Tribunal had an implied power to grant a permanent stay in order to prevent an abuse of process. In Shirvanian, Mason P observed that a statutory court must be taken to be given, by implication, the powers necessary to exercise the expressly conferred jurisdiction, for example, an implied power to prevent abuse of its process, following Jackson v Sterling (1987) 162 CLR 612 at 623-634; Grassby v The Queen (1989) 168 CLR 1 at 16-17.

99. In Clarke, the Tribunal saw no reason why the same approach should not apply to the powers of NCAT, where the legislation by which the Tribunal was established gave a wide range of powers and functions including those conferred by ss 36 and 38: at [73]-[74]. The Tribunal concluded at [77]:

“It seems to us that it would be anomalous that a tribunal having the functions and powers bestowed upon this Tribunal should not have the implied power to ensure that its own processes were not the subject of abuse and that its procedures were not capable of being stayed by it to avoid such abuse. There seems no reason why, as a matter of logic, these basic powers which repose in all courts including inferior courts created by statute should not also extend by the application of the same principles to the work of this Tribunal. …”

101. Clarke was followed in Health Care Complaints Commission v Karunaratne [2018] NSWCATOD 137 at [29], but whether the Tribunal had power to permanently stay proceedings was described as a “controversial issue which remains to be resolved” in Health Care Complaints Commission v Kirby [2019] NSWCATOD 47 at [6]. Similar doubts were expressed in Health Care Complaints Commission v Grygiel [2019] NSWCATOD 123 at [31]. In Holt v Dental Council of NSW [2020] NSWCATOD 37, the Tribunal re-considered and followed Clarke, having regard to the observations of Leeming JA in Attorney General for NSW v Gatsby [2018] NSWCA 254, which were read as “supportive of the possession of implied powers by [the] Tribunal to facilitate the exercise of its jurisdiction”: at [75]. In the context of whether the Tribunal could determine separate questions, Leeming JA observed in Gatsby at [284]:

“The power conferred upon the Tribunal by s 38(1) of the [NCAT] Act to determine its own procedure for which no provision is otherwise made, to be exercised in accordance with the obligation to give effect to the guiding principle of facilitating the just, quick, and cheap resolution of the real issues in the proceedings (see s 36(1) of the Act) suffice to empower the Appeal Panel to act as it did. In my view whether that is ‘express’ or otherwise is beside the point.”

102. In Alexakis v Health Care Complaints Commission [2021] NSWCA 217, the Court was considering the Tribunal’s power to stay proceedings until determination of other proceedings pending in the Supreme Court. The Court observed, “… the power to grant a stay may be found in s 36(1) (powers to determine own procedures) and s 51 (power to grant adjournments) of the Tribunal Act”: at [6]. Presumably, the Court intended to refer to s 38(1), which provides that the Tribunal may “determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.” In Council of the Law Society of New South Wales v McGlinchey [2021] NSWCATOD 147, the Tribunal noted, “If these observations are correct, it is arguable that s 38(1) of the NCAT Act also gives the Tribunal power to grant a permanent stay”: at [10].

103. Clarke was recently followed in Council of New South Wales Bar Association v de Robillard [2022] NSWCATOD 122 at [67]. In Commissioner of Police v EMB [2022] NSWCATAP 85, the Appeal Panel continued to note that there was “some doubt” as to whether the Tribunal had the power to permanently stay proceedings but noted that the Tribunal may dismiss proceedings under s 55(1)(b) of the Civil and Administrative Tribunal Act: at [6].

104. The reasoning in Clarke is compelling, but I am reluctant to resolve this controversy on an expedited matter, where the parties’ senior counsel did not address this in any detail. Further, whilst there is a divergence of views in the authorities about whether NCAT has the power to permanently stay its own proceedings, it has an express statutory power under s 55(1)(b) of the Civil and Administrative Tribunal Act to dismiss proceedings at any stage if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance. In BDK v Department of Education and Communities [2015] NSWCATAP 129, the Tribunal considered that s 55(1)(b) conferred a broad power, at [66]:

“In our view a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s 55(1)(b). The intent of the provision, as we see it, is to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While ‘misconceived’ and ‘lacking in substance’ may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are ‘frivolous’ or ‘vexatious’, conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings.”

105. Such an approach was endorsed in Minister for Education and Early Childhood Learning v Zonnevylle (2020) 103 NSWLR 91 at [45] (per McCallum JA, Macfarlan and Leeming JJA agreeing). So, for example, in Kirby the Tribunal concluded, “Even if NCAT lacks the power to permanently stay proceedings, if the proceedings are found to be an abuse of process, in my view s 55(1)(b) of the NCAT Act would permit the Tribunal to dismiss the proceedings on the ground that they are vexatious”: at [7].

106. As such, the Tribunal has ample power to dismiss the second NCAT proceedings if they are indeed vexatious. True it is that the son and daughter-in-law may oppose such an order being made on the basis that there is fresh evidence to be heard. But the Tribunal is also best placed to judge the extent to which the issues raised by the second NCAT proceedings duplicate the issues raised in the earlier proceedings, bearing in mind the events which have occurred and any relevant changes in the mother’s health in the time that has passed since the earlier proceedings were determined.

parens patriae jurisdiction

107. Turning then to the mother’s primary claim for relief, in Department of Health & Community Services v JWB & SMB (“Marion’s Case”) (1992) 175 CLR 218; [1992] HCA 15, Mason CJ and Dawson, Toohey, Gaudron JJ observed that the parens patriae jurisdiction “springs from the direct responsibility of the Crown for those who cannot look after themselves; it includes infants as well as those of unsound mind”: at 259. Their Honours described the Crown’s inherent jurisdiction “to do what is for the benefit of the incompetent” (citing Re Eve [1986] 2 SCR 388) by reference to the explanation of Lord Eldon in Wellesley v The Duke of Beaufort (1827) 2 Russ 1 at 20:

“[It] belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown round them.”

108. Although the parens patriae jurisdiction is “extremely broad”, it is “exercised cautiously”; there must be some clear justification for a Court's intervention: Marion’s case at 280 (per Brennan J) (citations omitted). In Re M (No 4) - BM v Director-General, Department of Family and Community Services (named Department of Community Services in Summons) [2013] NSWCA 97, Ward JA also observed that “exceptional circumstances are required for this Court to interfere with orders that have been made by judicial officers exercising specialist jurisdiction such as those in the Children's Court”: at [22]. See likewise Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157 at [37]-[40] (per Palmer J); Re Frieda and Geoffrey [2009] NSWSC 133; (2009) 40 Fam LR 608 (per White J); Re Frances and Benny at [18] (per Young CJ in Eq); Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79 at [20]-[22] (per Hodgson CJ in Eq); Director-General of the Department of Community Services v Priestley [2004] NSWSC 639 at [8] (per Young CJ in Eq); GR v Secretary, Department of Communities and Justice [2020] NSWSC 739 at [201] (per Ward CJ in Eq); Brown v Brown [2022] NSWSC 16 at [7] (per Kunc J, in respect of Family Court proceedings).

109. I am not satisfied that the Court should exercise its parens patriae jurisdiction to injunct the son and daughter-in-law from instituting any further proceedings against the mother. On the basis of the evidence before the Tribunal, the mother is able to attend to her own welfare. After reviewing detailed and competing medical evidence, the Tribunal considered that the mother did not have dementia. Despite suffering from anxiety and depression, the Tribunal was also satisfied that the mother had capacity to give instructions in legal proceedings; the mother had successfully confronted a number of highly stressful financial and legal matters.

110. According to the conduct of these proceedings, the mother continues to have mental capacity and the ability to give instructions. The mother made an affidavit, albeit brief. The mother is competent to instruct lawyers, and she is instructing lawyers, including senior counsel, to safeguard her interests.

111. Mr Watson-Munro, who reviewed the mother on 18 March 2024, noted that the mother was well oriented in time, place and person and clearly recalled her recent interactions with the psychologist. The mother expressed a firm view that she does not want to be placed in a situation where she is in the same NCAT hearing room as her son and daughter-in-law, without the support of a lawyer. The mother reported to Mr Watson-Munro that the prospect of this occurring had escalated her anxiety and depression, and was interfering with her sleep, and that she wanted the proceedings to end. Mr Watson-Munro expressed the opinion that the mother will require ongoing and frequent psychological intervention if she is required to participate in the second NCAT proceedings in a manner that involves attending NCAT on a number of occasions and being questioned as a witness by the son and daughter-in-law whilst endeavouring to conduct her own case without a lawyer.

112. The mother would require the leave of the Tribunal to be represented by lawyers in the second NCAT proceedings. Leave is not infrequently granted, as legal representation is often of assistance to the parties and to the Tribunal. The mother has assembled medical evidence to support an application for leave, which was granted in the first NCAT proceedings. The grant or refusal of leave is entirely a matter for the Tribunal, but there is no evidence before me of any circumstance that would render it unlikely for the mother to be granted leave to be legally represented in the second NCAT proceedings. The mother has not established that the scenario that she has self-reported as escalating her anxiety and depression, and that Mr Watson-Munro has opined would result in the mother requiring psychological intervention, is a probable scenario in the second NCAT proceedings.

113. I accept that any legal proceedings concerning the mother are stressful to her as, indeed, such proceedings would be stressful to most people. But the mother is able to attend to her own welfare by instructing her legal representatives to apply to the Tribunal for leave for her to be legally represented, and to dismiss the second NCAT proceedings summarily as vexatious if appropriate. The Guardianship Division is also a specialist tribunal best placed to assess whether the orders sought by either party are appropriate. No exceptional circumstances have been established which would warrant this Court’s intervention.

114. The terms of the orders sought under the parens patriae jurisdiction also go too far, seeking orders prohibiting the institution of any proceedings against or concerning the mother. The circumstances in respect of an elderly person’s health and mental state may change. The mother, now aged 90, is asking me to prevent her son from making any application to the Tribunal if, for example, her medical situation should deteriorate and the persons presently chosen as her enduring guardians should prove inappropriate or no longer wish to accept that role. This application fails.

Section 8 of the Vexatious Proceedings Act

115. In the alternative, the mother sought an order under s 8(1) of the Vexatious Proceedings Act, which provides:

“Making of vexatious proceedings order

(1)   When orders may be made An authorised court may make an order under this section (a vexatious proceedings order) in relation to a person if the court is satisfied that:

(a)   the person has frequently instituted or conducted vexatious proceedings in Australia, or

(b)   the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia.”

The son was said to fall within s 8(1)(a) and the daughter-in-law within s 8(1)(b) as “acting in concert” with the son.

116. Determining whether to make a vexatious proceedings order against a person involves four steps: first, to identify the “proceedings” the subject of the application which are said to be vexatious; second, to determine which, if any, of those proceedings is “vexatious” within the meaning of s 6; third, to determine whether the person has “frequently” instituted or conducted vexatious proceedings in Australia within the meaning of s 8(1); and, finally, to determine the manner in which the discretion granted by s 8 is to be exercised: Collier v Attorney-General (NSW) [2023] NSWCA 273 at [45] (per Kirk JA) following Zepinic v Chateau Constructions (Aust) Ltd [2018] NSWCA 317 at [13]-[15].

117. If these elements are satisfied, then the Court may make an order of the kind described in s 8(7) of the Vexatious Proceedings Act, which provides:

“Orders that may be made by Supreme Court The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person:

(a)   an order staying all or part of any proceedings in New South Wales already instituted by the person,

(b)   an order prohibiting the person from instituting proceedings in New South Wales,

(c)   any other order that the Court considers appropriate in relation to the person.”

118. That is, the Court has a discretion whether to make an order and, if so, the nature of the order that should be made: Teoh v Hunters Hill at [44]. The Court should exercise restraint when considering the scope of a vexatious proceedings order, recognising the important principle of open access to justice: Proietti at [22], following Potier at [17] (Basten JA). An order restricting a person’s access to the courts is a very serious matter and, as such, a vexatious proceedings order is not to be made lightly. The purpose of such an order is not to punish a litigant for past misdeeds but to shield other litigants from harassment and to protect the Court from the expense, burden and inconvenience of baseless and repetitious suits: Teoh v Hunters Hill at [56]; citing Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [3] (Perram J).

119. Turning to the first step, s 4 widely defines “proceedings” as follows:

“Meaning of “proceedings”

In this Act, proceedings includes:

(a)   any civil proceedings, criminal proceedings or proceedings before a tribunal, and

(b)   any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and

(c)   any proceedings taken in connection with or incidental to proceedings pending before a court or tribunal, and

(d)   any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings, criminal proceedings or proceedings before a tribunal, and

(e)   any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way.”

120. Section 5 of the Vexatious ProceedingsAct contains a similarly wide definition of “institute”. I have endeavoured to describe the “proceedings” between the mother, son and daughter-in-law, both substantive and interlocutory. The son and daughter-in-law have sued, and been sued by, the mother in relatively equal measure.

121. The second step is to determine which, if any, of the proceedings are vexatious. Section 6 defines “vexatious proceedings” to include:

“(a)   proceedings that are an abuse of the process of a court or tribunal, and

(b)   proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and

(c)   proceedings instituted or pursued without reasonable ground, and

(d)   proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings.”

122. Although the definition is not expressed to be exclusive, it would be a “rare case where proceedings would be found to be ‘vexatious proceedings’ unless they could fairly be categorised as falling under one of the descriptions in s 6”: Mahmoud v Attorney-General of New South Wales [2017] NSWCA 12 at [21] (per Payne JA, Beazley P and Macfarlan JA agreeing). The mother relied, in particular, on sub-section (d) of the s 6 definition in this case.

123. Section 6 does not specify the matters that the Court should take into account in deciding whether each of the proceedings relied on (or a sufficient number of them) satisfy the definition of “vexatious proceedings”: Teoh v Hunters Hill at [52]. The reference in s 6(a) to “proceedings that are an abuse of the process of a court or tribunal” invokes a “vast body of case law in relation to the doctrine of abuse of process”, underpinned by the importance of finality as an element of justice: Proietti v Proietti [2024] NSWCA 48 at [12]-[13] (per Bell CJ, Kirk and Stern JJA). Ordinarily, the court that heard and decided the earlier proceedings will have been best placed to determine whether they were an abuse of process or instituted without reasonable grounds but, given the seriousness of the consequences of making a vexatious proceedings order, it remains open for the court hearing the application to depart from such findings, although very persuasive material is required to justify such a departure: Teoh v Hunters Hill at [53]-[54].

124. I was not taken to any suggestion by NCAT, in the first Tribunal proceedings, that those proceedings, or any interlocutory steps taken in those proceedings, were regarded by the Tribunal as an abuse of process or pursued without reasonable grounds. While the appeal to this Court was unsuccessful, I did not understand Lindsay J or Kunc J to suggest that the appeal proceedings were an abuse of the processes of this Court, albeit Lindsay J suggested that some of the matters sought to be agitated here would better be the subject of a further application to NCAT.

122. In order to address whether a person’s conduct is vexatious, it is necessary to “have regard in more detail to the circumstances” in which each of the applications made by the person were made: Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [67]. Each procedural step taken by the son, on which the mother relied in support of this application, appears to have been explicable. The scope of the summons sought to be issued by the son to Mr Solari and others were curtailed by the Tribunal. The son sought to review the Tribunal’s decision and had some success in this regard. Subsequent summonses were issued to Mr Solari; it appears from the transcript of the NCAT proceedings that these summons were generally permitted. The Tribunal did not observe that the son’s actions were an abuse of process, instituted to harass or annoy, or pursued without reasonable ground. The same can be said of the son’s subpoena issued in the appeal proceedings, and the curtailment of the scope of those subpoena when challenged.

123. Further, the son and daughter-in-law were represented in the Tribunal proceedings and this Court by counsel, including senior counsel, together with an obviously competent and professional solicitor. I infer that the steps taken in the Tribunal proceedings and in this Court were with the benefit of legal advice.

124. Whether the second NCAT proceedings are vexatious is an issue which the Tribunal will have to determine, should the mother bring an application to dismiss the proceedings under s 55(1)(b) of the Civil and Administrative Tribunal Act. There are certainly elements of the son’s application, and the supporting evidence, which appear to go over old ground. Sometimes it is necessary to do this in order to put allegedly fresh evidence in context or to demonstrate that the basis on which the Tribunal proceeded in the first NCAT proceeding was, as revealed by that fresh evidence, incorrect. That is properly a matter for the Tribunal to resolve. Whether the son’s allegations made in the second NCAT proceedings in respect of the mother’s legal team are offensive to those lawyers is, with respect, not the point; the proceedings are ultimately not about them.

125. The third step is to determine whether the son and daughter-in-law have “frequently" instituted or conducted vexatious proceedings, where “frequently” poses a “relatively low threshold”: Potier v Attorney-General in and for the State of New South Wales [2015] NSWCA 129 at [114] (per Leeming JA). Both the quality of the vexatiousness of the proceeding, and the nature of the proceeding itself, informs the assessment of frequency: at [116]. As Leeming JA observed at [117]:

“I can readily envisage circumstances where a litigant commences only a handful of large proceedings, making serious allegations without any proper basis, but which occupy a significant amount of time and resources of parties and the courts, which could satisfy the statutory test of ‘frequently’. This illustrates the fact that ‘[t]he issue posed by the statutory term “frequently” is not to be assessed merely by an arithmetic calculation’: Viavattene [v Attorney General (NSW) [2015] NSWCA 44] at [49].”

129. Where a person commences both vexatious and non-vexatious proceedings, the proportion of proceedings which are found to be vexatious is not relevant to whether the person has instituted vexatious proceedings “frequently”, but will be highly relevant to the exercise of the Court’s discretion to make an order, where such an order will operate on both vexatious and non-vexatious proceedings: Potier at [119]-[120]; Proietti v Prioetti [2024] NSWCA 48 at [18]-[19]. In Teoh v Hunters Hill, the Court (Beazley P, Emmett JA and Sackville AJA) also observed that a pattern of repeated vexatious applications within a limited period of time may satisfy the language of the statute, particularly where a litigant “repeatedly challenges a decision in a manner that demonstrates an unwillingness or inability to accept that the challenge has been rejected and that there are no grounds for further challenges”: at [49] (per Beazley P, Emmett JA and Sackville AJA).

130. Where the mother points to a number of interlocutory steps taken by the son and daughter-in-law, being the issue of summons to Mr Solari in NCAT and subpoenas to hospitals in this Court, Ball J’s observations in Siteberg Pty Ltd v Maples [2010] NSWSC 1344 are apposite, at [32]:

“In determining the question of frequency, it is also important to bear in mind the nature of the proceedings. It is more difficult to say that a person has commenced proceedings frequently where many of the proceedings involve interlocutory applications that are a normal incidence of the principal proceedings. Those interlocutory applications may be vexatious because they are made in furtherance of proceedings which themselves are vexatious. But it does not necessarily follow that the person making the applications has brought vexatious proceedings frequently. It is necessary to examine the nature of the applications to determine whether they are simply a consequential aspect of the original proceedings or something different for the purpose of assessing the question of frequency. Conversely, the court may be more willing to conclude that vexatious proceedings are brought frequently where the proceedings are brought against the same person or involve the same subject matter. The court may also be more willing to find that vexatious proceedings are brought frequently where the claim is fanciful. …”

131. Assuming, for the moment, that the second NCAT proceedings are vexatious, then I am not satisfied that it can be said that the son and daughter-in-law have “frequently” instituted vexatious proceedings. The interlocutory processes in the first NCAT proceedings and in the appeal proceedings in this court are generally explicable and appear to have been undertaken under the ministrations of a solicitor and senior counsel. I do not consider that this element has been satisfied.

132. This is not to say that the second NCAT proceedings are meritorious or that an application under s 55(1)(b) may not be warranted, but simply to say that the elements of the Vexatious Proceedings Act are not satisfied. For these reasons, I dismiss the Summons with costs.

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Decision last updated: 21 June 2024