RW v SA & ML

HIS HONOUR: These proceedings concern a dispute in the X family. I shall refer, without disrespect, to the parties by their given names.

The plaintiff, RW, and the first defendant, SA, are the children of the second defendant, ML. ML is 95 years old and owns an apartment at Darling Point (the “Apartment”) said to be worth somewhere between $3 million and $3.5 million. The Apartment is listed to be auctioned next Tuesday, 16 June 2015.

These proceedings were commenced urgently last week before the Chief Judge sitting as Duty Judge. Her Honour gave leave for short service of the summons and affidavits with a direction that the matter be returnable before the Duty Judge today. That is how it comes before me.

The summons is in an unusual form insofar as it does not appear to contain any prayers for final relief. The relief claimed is:

Today, Mr R. O'Brien of Counsel, who appears for RW, moves on paragraph 2 of the summons. That course is opposed by Mr J Sleight of Counsel, who appears for ML. There is no appearance today on behalf of SA, but for present purposes nothing turns on that.

Some further background is necessary. I have been informed from the Bar table that ML had appointed RW and SA as her attorneys under a power of attorney and as joint guardians under an appointment of enduring guardianship. It appears that ML has now purported to revoke these joint appointments and has appointed SA as sole enduring guardian.

I have also been informed from the Bar table that RW has concerns about ML's capacity. Those concerns have led to RW making an application to the Guardianship Division of the New South Wales Civil and Administrative Tribunal (“NCAT”) for orders under the Guardianship Act revoking SA’s appointment as sole enduring guardian and for the making of a guardianship and a financial management order.

RW’s application to NCAT contains the following as the basis for the order sought:

RW’s application was before a Senior Member (Legal) of NCAT yesterday (Thursday, 11 June 2015), when directions for the conduct of RW’s application were made. Those directions included fixing the matter for hearing before NCAT on 28 August 2015.

At the outset of the application today, Mr Sleight informed the Court that he had what he described as a preliminary jurisdictional point. That point was to draw to my attention the provisions of ss 26 and 27 of the Powers of Attorney Act 2003 (NSW) (the “PA Act”):

I have not heard full argument from either party on any of the matters they wish to raise, nor have I formally received the evidence that either side may wish to rely on. The proceedings have continued and have been conducted before me at a more general level, but against the background of the submission (as to which I have reached no final conclusion) that there is a jurisdictional prohibition against these proceedings being brought in this Court. That submission would entail acceptance of the proposition that s 27 (2) of the PA Act prevents the present application being made in this Court (which is a review tribunal for the purposes of the PA Act), having regard to the application that RW has commenced in NCAT.

It is not necessary for me to reach a final decision as to the correctness of the jurisdictional point at this stage. A more fundamental matter of case management provides the reason for the course which I propose to adopt today, based upon s 25H of the Guardianship Act 1987 (NSW):

In other words, it is open to RW to make an application to NCAT for an interim financial management order in relation to ML if he wishes to do so.

I also take into account the following two matters.

First, the summons does not contain any application for final relief. Mr O'Brien informed me from the Bar table that the equity claimed in support of the injunction that was sought arises from a concern that the sale of the Apartment has been entered into as a result of undue influence exercised on ML by SA. I have not considered the evidence relied on in support of that proposition and so say nothing further about it. However, if that is the case, it is at least unusual that RW does not wish to intercept the sale of the Apartment. On the contrary, he seeks in paragraph 1 of his summons (see paragraph [4] above) an order compelling the sale of the Apartment by auction. He does not press for that order today. It is clear why he does not, given that the auction is to occur next Tuesday and RW is apparently content for that to happen.

Second, there is no particular urgency. If RW's concerns are about how the proceeds of any auction are to be dealt with, and he does not wish to restrain the sale, then it will be some weeks (assuming the auction sale is successful) before any proceeds of sale come into existence. I am again informed from the Bar table that the contract of sale provides for the usual six week settlement period. There is therefore no particular urgency for the Court to intervene to protect proceeds of sale that are some weeks away from becoming available to any party.

Those considerations bring me to the principal reason why I propose to stand these proceedings over to enable any application that RW wishes to make to be made in NCAT. It seems to me that this case presents an important point of case management and comity between tribunals. By reason of the creation of NCAT and the incorporation of the former Guardianship Tribunal as a division of NCAT, the legislature has made it clear that NCAT is to be the priML source of relief for persons concerned about matters of capacity and the management of the affairs of people who, for whatever reason, are unable to manage their own affairs.

Where a party has commenced proceedings in NCAT, this Court expects a party to those proceedings fully to exhaust the remedies available to that party in NCAT before approaching this Court. It would be highly undesirable for a practice to arise whereby satellite litigation was brought in this Court for orders said to be in aid of, or supplying lacunas alleged to exist, in the powers of NCAT in relation to matters before NCAT.

That is not to say that there are not circumstances where questions of either or both of jurisdiction or urgency may mean that NCAT cannot deal with a particular problem. In those circumstances this Court will, if the evidence supports it, intervene to grant injunctions or make other orders, including by exercising the parens patriae jurisdiction, to ensure that justice is done between the parties. But, in the first instance, this Court expects parties who have commenced proceedings in NCAT to fully exhaust the relief available in that tribunal before approaching this Court.

For these reasons I propose to make no order today other than to stand the proceedings over to before me as Duty Judge next Friday, 19 June, 2015. I do so to give RW an adequate opportunity, if he wishes, to approach NCAT to seek an interim financial management order in respect of ML. The fate of these proceedings can be further discussed next week when the parties know what has been able to be done in NCAT.

I direct that the transcript of these reasons be produced urgently so that by no later than Monday I will be able to provide a settled version of these reasons to the parties. I will also direct that if any application is made to NCAT, a copy of these reasons should be made available to whoever is dealing with the matter in NCAT.

Accordingly, the only other order I make today is that the summons be adjourned for further directions to the Duty Judge's list on 19 June, 2015.