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)