Gaetani v Schiliro

1. [1]

   HIS HONOUR: On 22 August 2017, S M Roberts, E Safro and D R Sword, three members of the New South Wales Civil and Administrative Tribunal (“the Tribunal”), determined an application with respect to a review of an enduring power of attorney and a guardianship application by making the following directions:

2. [2]

   The Tribunal issued reasons for the making of those directions on 25 September 2017. Given the course of the appeal, it is unnecessary to embark upon a summary or description of those reasons.

3. [3]

   By an amended summons filed 23 November 2017 (“the amended summons”), an appeal was brought by Mrs Gaetana Gaetani and Mrs Ysabell Schiliro (collectively, “the plaintiffs”), pursuant to Pt 14 of Sch 6 of the Civil and Administrative Tribunal Act 2013 (NSW), against Ms Barbara Schiliro (“the defendant”). The following orders were sought:

4. [4]

   The Court received written submissions by the plaintiffs and the defendant filed 7 March 2018 and 8 March 2018, respectively.

5. [5]

   During the course of the hearing of the appeal on 9 March 2018, an issue was raised as to whether the directions issued by the Tribunal imposed a legal obligation. Both parties conceded (in one way or another) that they did not. In the result, the plaintiffs sought leave to further amend their amended summons in order to seek a declaration to the effect that they had no such obligation.

6. [6]

   The Court intimated that, based on the submissions of the parties, it was prepared to grant the amendment and to make the foreshadowed orders. This step ultimately resulted in consent orders being made in the following form:

7. [7]

   Upon the matter bring returned on 17 May 2018, two outstanding issues remained as follows:

   1. (1)

      whether the proceedings before the Court should be determined conclusively by the making of consent orders, subject only to the question of costs; or

   2. (2)

      whether the proceedings should proceed in the Equity Division of the Supreme Court, namely, the Protective List of Lindsay J (again, with the question of costs requiring resolution).

8. [8]

   To facilitate the disposition of those issues a procedure was adopted whereby the plaintiff would produce a draft notice of motion (“the draft motion”). That step was taken with the draft motion (not being formally before the Court) seeking, inter alia, leave to serve a further amended summons, foreshadowing the orders which would be sought in the Equity Division of the Court and staying the extant proceedings before the Tribunal.

9. [9]

   No further submissions were received, save for a submission from the defendant opposing time to file the draft motion in apparent misunderstanding of the procedure adopted.

10. [10]

    Having reviewed the material, I consider that the appropriate course is to treat the existing proceedings constituting an appeal from the Tribunal as spent, save as to the issues of cost, so as to permit the Tribunal to determine the extant proceedings before it (noting there is no issue as to its jurisdiction to do so).

11. [11]

    No ruling is made with respect to the draft motion which is strictly not before the Court other than as an indication as to a foreshadowed course. Nothing in this ruling is intended to be conclusive of any fresh steps which may be taken by the plaintiffs in this Court.

12. [12]

    As to the question of costs, and as per the agreement of the parties, the question will be determined on the papers, save as to any application for an oral hearing, with each party providing written submissions with respect to the same. As the debate has gravitated towards the defendant seeking costs the following directions are predicated on that basis. No other orders would seem to be necessary in the disposition of the appeal itself having regard to order 6 as extracted in [6] above. If either party, however, considers that a further step is necessary in that respect they should indicate the same in their written submissions.

Directions

1. [13]

   The Court makes the following directions:

   1. (1)

      The defendant shall file and serve written submissions with respect to costs within 14 days of the publication of this decision; and

   2. (2)

      The plaintiffs shall file and serve written submissions with respect to the same within 14 days of receipt of the submissions referred to in (1).

   3. (3)

      The matter may be listed for further oral submissions upon application by either party in their written submissions filed in accordance with these directions or if that course is considered appropriate by the Court.

   4. (4)

      In the absence of an application pursuant to (3), the issue of costs will be determined upon the written submissions and without further oral submissions before the Court.