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.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading WW v AJFW
Sign in free to access the full text
Details
AGLC
WW v AJFW [2024] NSWSC 754
Case
[2024] NSWSC 754
Decision Date
CaseChat Overview and Summary
In the case of WW v AJFW, the dispute involved an elderly mother who initiated legal action against her only son and his wife. The matter was settled, and the son and his wife provided an undertaking to the court, promising not to contact the mother. This court-approved undertaking was intended as an interim measure to restore family relationships. However, the mother later sought to have the undertakings set aside, claiming they were not fit for their purpose. The court was required to consider the implications of the acceptance of the undertakings on procedural fairness in any subsequent legal proceedings, as well as the necessity for clear drafting of such undertakings. The court found that the acceptance of an undertaking in a settlement context did not equate to an endorsement of its terms by the court. Additionally, the court examined its discretion in accepting undertakings, taking into account the circumstances and the potential impact on the parties involved.
The legal issues before the court encompassed the court's power to accept undertakings, the appropriateness of the undertakings given as part of the settlement, and the implications of these undertakings on the fairness of any future legal proceedings. Furthermore, the court explored the principles of parens patriae and whether the tribunal had the power to permanently stay the proceedings. The court also needed to determine if the son's actions constituted vexatious proceedings under the relevant statute. The court found that the undertakings were not appropriate for their intended purpose and that the tribunal did not have the power to permanently stay the proceedings. The court also considered whether the son's actions constituted vexatious proceedings but found that the requisite elements were not established.
The court concluded that the undertakings provided by the son and his wife were not fit for their intended purpose and did not adequately address the mother's concerns about further legal proceedings. The court highlighted the importance of clear drafting of undertakings and noted that the acceptance of an undertaking in a settlement context did not imply the court's endorsement of its terms. The court also examined its discretion in accepting undertakings and found that the discretion to exercise jurisdiction was not enlivened in this case. The court declined to set aside the undertakings but acknowledged the importance of ensuring that any undertakings are appropriate and fit for their intended purpose. The court ultimately found that the son's actions did not constitute vexatious proceedings, and the matter was dismissed.