McNamee & Anor v McNamee & Anor [2025] NTSC 59

Clarey v Permanent Trustee Co Ltd [2005] VSCA 128; JMT Builders Pty Ltd v T J Ryan & Ors [2016] NTSC 6; MacDonnell Shire Council v Miller [2009] NTSC 46; Secretary, Dept of Health and Community Services (NT) v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218; Vishniakov v Lay [2019] VSC 403; ABC v Catholic Archdiocese of Melbourne [2021] VSC 87; Doedens & Ors v Owen (No 2) [2018] SASC 23; Rhodes v Swithenbank (1889) 22 QBD 577; Elbourne v Troone Pty Ltd [1978] VicRp 15; [1978] VR 171; L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; [2006] 233 ALR 432; A v City of Swan [No 5] [2010] WASC 204; Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511; Wheatley v The Public Trustee of Queensland as Litigation Guardian of BBJ [202] QDC 84; Dauguet v Centrelink [2015] FCA 395; Re Whittall [1973] 3 All ER 25; King & Ors v Fister & Anor [2019] QSC 217; Gronnerud (Litigation Guardian of) v Gronnerud Estate [2002] SCR 38 417; Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62

Williams Civil Procedure Victoria, paragraph 15.02.25, 'Inquiry whether proceeding properly brought', paragraph 15.02.35 'Duty of litigation guardian', referred to.

McNamee & Anor v McNamee & Anor [2025] NTSC 59

CLINTON BLAKE MCNAMEE (AS LITIGATION GUARDIAN FOR LORNA JENNIE PASCOE)

TIARNI MCNAMEE (AS LITIGATION GUARDIAN FOR LORNA JENNIE PASCOE)

MITCHELL MACKENZIE HERRETT (AS TRUSTEE OF THE BANKRUPT ESTATE OF MITCHELL KENT MCNAMEE)

• [1] The First Defendant makes application on summons pursuant to Supreme Court Rule 23.01(1), and the inherent jurisdiction of the Court, for a stay on the proceedings until further order of the Court. The application is brought on the basis of an alleged abuse of process arising in circumstances relating to the ongoing appointment of the litigation guardians, the First and Second Plaintiffs.

• [2] The background to the substantive proceeding is set out in previous judgments of this Court and the Court of Appeal. This proceeding has to date been subject to: judgment by Burns J in respect to an application by the Plaintiffs for possession of land under Order 53; a successful appeal by the First Defendant against that judgment which was remitted to the Supreme Court; an unsuccessful interlocutory application by the Plaintiffs for dismissal of the First Defendant's counterclaim; and an interlocutory application for summary judgment by the Plaintiffs, currently reserved.
• [3] In short, the Plaintiffs, as litigation guardians for Lorna Jennie Pascoe (Mrs Pascoe), who is under a disability having suffered a stroke in late 2021, have brought the substantive proceedings against the First Defendant (an undischarged bankrupt) in respect to a dispute concerning the First Defendant's on-going possession of property owned by Mrs Pascoe, namely land and a motor vehicle. The Plaintiffs claim that as Mrs Pascoe's litigation guardians they effectively withdrew any rights that Mrs Pascoe may have granted in respect to the First Defendant's on-going possession of the land and the First Defendant does not have an entitlement to the motor vehicle. The Plaintiffs seek orders for possession in respect to the property. The First Defendant in turn disputes the Plaintiffs' entitlement to do so and has brought a counterclaim against the Plaintiffs as Mrs Pascoe's litigation guardians.
• [4] The First Plaintiff and the First Defendant are siblings and Mrs Pascoe is their mother.
• [5] Proceedings were originally commenced by the Plaintiffs in April 2022 in their capacity as "Legal Guardians of Lorna Jennie Pascoe". Why proceedings were not originally commenced formally under the names of the litigation guardians is not known. Further, it is not clear but entirely possible that any entitlement to commence proceedings in Mrs Pascoe's name arose under Rule 15.03(3) of the Supreme Court Rules 1987, that is, where a person is authorised by or under an Act to conduct legal proceedings in the name of a person under a disability, he shall be entitled to be the litigation guardian of the person under a disability.[1] Notices of consent to act as litigation guardians in accordance with Rule 15.03(6) and (7) were subsequently filed by Clinton McNamee and Tiarni McNamee on 23 April 2024, following the Court of Appeal decision.[2]
• [6] The matter is currently subject to a reserved decision before me in respect to an application by the Plaintiffs for summary judgment made by summons filed 18 October 2024 and heard on 4 March 2025. Whilst that decision was reserved this application was made, following a decision of the Northern Territory Civil and Administrative Tribunal (NTCAT) in respect to the guardianship matter.
• [7] The relevant factual background and the factors which have precipitated this application are set out in the affidavit of Cameron Jones, solicitor for the First Defendant, made 8 July 2025 and I take that affidavit as read for the purposes of this application.
• [8] On 21 December 2023 the NTCAT made interim guardianship orders pursuant to the Guardianship of Adults Act 2016 (NT) (the Act) appointing the First and Second Plaintiffs as joint guardians of Mrs Pascoe for both personal and financial matters until 21 March 2021. On 8 March 2022 those orders were confirmed for two years. After their appointment the Plaintiffs issued a letter purporting to withdraw Mrs Pascoe's consent for the First Defendant to remain in the property on Mrs Pascoe's land and in respect to the First Defendant's possession of the motor vehicle, and these proceedings were commenced soon thereafter.
• [9] In March 2025 an application was brought in the NTCAT for the removal of the Plaintiffs as litigation guardians of Mrs Pascoe, by Stephen McNamee being another child of Mrs Pascoe and brother of the Plaintiffs and First Defendant. On 23 June 2025 NTCAT made a further order under the Act removing the Plaintiffs as guardians of Mrs Pascoe and appointed the Public Guardian as guardian for personal matters and the Public Trustee for the Northern Territory as guardian for financial matters. The authority of the Public Guardian expressly included the authority to make decisions regarding legal matters affecting Mrs Pascoe, including retaining and instructing legal representation. The orders of NTCAT are annexed to Mr Jones's affidavit as annexure CJ-1. The orders were made following a reassessment of the orders of the NTCAT dated 7 March 2022 and replaced those orders. Reasons accompany the orders.
• [10] The First Defendant's position is that as a result of the NTCAT orders and as evinced by its reasons, the position of the Plaintiffs as litigation guardians is untenable and their ongoing conduct constitutes an abuse of process. The untenable position is said to arise in circumstances where there is said to be significant personal animosity between the Plaintiffs and the First Defendant, such that decisions made by the Plaintiffs as litigation guardians are not being made in Mrs Pascoe's best interests. The Plaintiffs position is that the role of litigation guardian and statutorily appointed guardian are distinct, that the power to remove, or apply to remove, a litigation guardian rests with the now appointed statutory guardian who is aware of the situation and has chosen not to remove the litigation guardians. Further, subject to confirmation from the Court as to the process to do so, the Second Plaintiff has expressed a desire to be removed as litigation guardian, leaving the First Plaintiff as sole litigation guardian.

• [11] The NTCAT Order was made on 23 June 2025 with accompanying reasons. The NTCAT's reasons set out in some detail its consideration of the factors bearing on its reassessment under s 37 of the Act, including the suitability factors for appointment as a guardian under

s 15(2) of the Act. The reassessment proceeding was originally listed in March 2024, but was adjourned for one year "given possible overlap between the issues in this proceeding and the issues in the Supreme Court matter in which several of the parties are involved". The NTCAT reasons disclose that in 2024, an application had been made by the First Defendant to bring the re-assessment hearing forward and to remove the Plaintiffs as guardians, but that application was unsuccessful. However, following an application by another sibling (Stephen McNamee) to vary the guardianship orders, the reassessment date was brought forward to be considered along with any applications made to date.

• [12] The NTCAT reasons disclose that a number of hearings were held (at least two) with written submissions received from parties (who it is assumed were the children of Mrs Pascoe). The office of the Public Guardian also provided a report which canvassed the views of each of the siblings. The NTCAT reasons traverse, in summary, the views of the family (Mitchell, Stephen, Tiarni, Clinton, Alana and Brendon). Whilst it is unnecessary to summarise each family member's view, the observations of NTCAT, via the presiding President, include comments such as:
  • It is clear and regretful that there is a high degree of mistrust and animosity between siblings. While there are certain allegiances between some siblings, those allegiances have shifted from the time the original orders were made and also during the course of the reassessment (paragraph 27).
  • Each of the siblings has levelled accusations of impropriety and in some cases illegality against one or other of their siblings. It is not necessary for me to determine the truth or otherwise of those accusations. In my view they are indicative of a level of dysfunction and animosity between the siblings that prevent the current guardianship orders from being effective or appropriate (paragraph 28).
  • The submissions and assertions reproduced above are indicative of the level of animosity and mistrust between siblings. As a result, as I have already indicated, I am not satisfied that any of the siblings is suitable to be appointed as a guardian for Lorna (paragraph 32).
  • In respect to the criteria under section 15, I am not satisfied that any of the siblings is in a position to properly comply with the Act in important respects (paragraph 33).
  • In my view the lines of communication between the siblings are so dysfunctional as to prevent an ability to conduct the required consultation around decision making. Particular animosities prevent any ability to properly consider the views of a sibling who is seen as a rival (paragraph 36).
  • I make no findings about Mitchell's claims to live in the house, but from a guardianship point of view it should be considered under section 4(6).[3] On the face of it, it seems to have been an arrangement that Lorna permitted when she had capacity. I am not satisfied that any of the siblings are in a position to consider that situation objectively without prejudice or rancour. (paragraph 38)
    • While the overwhelming focus and source of tension evidence in this proceeding has related to financial matters, the same criteria for eligibility apply to a consideration of who should be appointed as a guardian for Lorna's personal decisions. Accordingly, I cannot find that any of the siblings are suitable (paragraph 47).
• [13] It is in the context of the findings of NTCAT that this stay application is brought.

• [14] In JMT Builders Pty Ltd v T J Ryan & Ors, Luppino M (as he was) summarised the principles relating to abuse of process generally:[4]

1. A litigant has the right to have his claim litigated provided it is not inter alia an abuse of process;

2. The court has an inherent power to prevent abuse of its own process by summary order;

3. The jurisdiction to strike out proceedings for abuse of process should be used sparingly and with circumspection;

4. The categories of abuse of process are not closed and recognised categories of abuse of process are:-

(a) proceedings which involve a deception on the court, or are fictitious or constitute a mere sham;

(b) where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way;

(c) proceedings which are manifestly groundless or without foundation or which serve no useful purpose;

(d) multiple or successive proceedings which cause, or are likely to cause, improper vexation or oppression;

5. What is an abuse of process depends on all the circumstances of the case and whether in a particular case there is abuse will be a question of fact and degree.

• [15] In the context of discussing the power to stay proceedings for abuse of process, Mildren J stated in MacDonnell Shire Council v Miller [2009] NTSC 46 (at [12]):

The onus of satisfying the Court that there is an abuse of process lies on the party alleging it. The onus is a heavy one and the power to grant a permanent stay is to be exercised only in the most exceptional circumstances.

• [16] Litigation guardians are appointed under Order 15 of the Supreme Court Rules. In this proceeding there is no doubt that Mrs Pascoe is a person under a disability requiring a litigation guardian to pursue her proceeding. Rule 15.02(1) requires, except where otherwise provided by or under an Act, a person under a disability shall commence or defend a proceeding by his litigation guardian. Rule 15.02(3) provides that a litigation guardian of a person under a disability shall act by a solicitor. The relevant provisions in respect to the appointment of a litigation guardian are provided in Rule 15.03 which provides:

(1) A person may be a litigation guardian of a person under a disability if he is not himself a person under a disability and he has no interest in the proceeding adverse to that of the person under a disability.

(2) Where a person is authorized by or under an Act to conduct legal proceedings in the name of or on behalf of a person under a disability, he shall, unless the Court otherwise orders, be entitled to be the litigation guardian of the person under a disability in a proceeding to which his authority extends.

(3) Where after a proceeding is commenced a party to the proceeding becomes a person under a disability, the Court shall appoint a litigation guardian of that party.

(4) Where the interests of a party who is a person under a disability so require, the Court may appoint or remove a litigation guardian or substitute another person as the litigation guardian.

(5) Where a party has a litigation guardian in a proceeding, no other person shall act as the litigation guardian, unless the Court otherwise orders.

(6) Except where a litigation guardian has been appointed by the Court, the name of a person shall not be used in a proceeding as the litigation guardian of a person under a disability unless there is first filed in the Registry the written consent of the person to be the litigation guardian.

(7) A consent under subrule (6) shall include a statement detailing the circumstances that constitute the proposed litigant to be a person under a disability and a certificate by the proposed litigation guardian that he has no interest in the proceeding adverse to that of the person under a disability.

• [17] Apart from, and additional to the Supreme Court Rules, the jurisdiction of the Supreme Court to require a person to be represented by a litigation guardian derives from the inherent obligation of the Crown as "parens patriae" (parent of the state) to care for those who are unable to care for themselves.[5]
• [18] Many of the legal principles in respect to appointment of litigation guardians focus on establishing the requisite disability of the person, the resultant need to appoint a litigation guardian and the obligations of the guardian arising thereunder.[6]
• [19] What can be distilled from the authorities in respect to the duties and obligations of the litigation guardian is as follows: a litigation guardian serves as an officer of the court and is required to take all appropriate measures for the benefit of the litigant under disability.[7] That description applies to the litigation guardian of a party under disability whether a plaintiff or a defendant. The duty to be performed by the litigation guardian is to be performed for the benefit solely of the party under disability and the performance of the duty is subject to the scrutiny of the court.[8] The appointment of a litigation guardian has in substance its purpose "to protect plaintiffs and defendants who may otherwise be at a disadvantage, as well as to protect the processes of the court".[9] A litigation guardian has been described as having fiduciary duties to the represented person which the court can oversee and enforce.[10] As to the general duty of a litigation guardian, although in the context of a defendant infant, the duty was expressed in Re Whittall:[11]

...the guardian ad litem of the infant has the duty, under proper legal advice, to apprise himself fully of the nature of the application, of the existing beneficial interest of the infant, and of the manner in which that interest is proposed to be affected, and to inform the solicitor whom he has retained in the matter of the course which he, the guardian, considers, in the light of the legal advice given to him, should be taken on behalf of the infant.

• [20] As to the circumstances in which a Court may determine to remove a litigation guardian, in respect to similar interstate legislation, the position was expressed in King & Ors v Fister & Anor:[12]

The discretion afforded the court by r 95(2) of the UCPR to remove a litigation guardian is premised on a finding that the interests of the party require that the litigation guardian be removed. That is expressed broadly because it must be able to apply to the many different circumstances which can exist when a litigation guardian is appointed.

Matters which might give rise to circumstances which could lead to a litigation guardian being removed include:

(a) where the litigation guardian has a conflict, for example, where the litigation guardian has an interest contrary to the person under a disability,

(b) where the litigation guardian is not conducting the litigation in an appropriate manner, or

(c) where the litigation guardian seeks orders or other relief which are not in the interests of, or for the benefit of, the person under a disability.

• [21] In respect to the absence of conflict of interest or the indifference required of a litigation guardian, the Canadian case of Gronnerud was cited in Wheatley:[13]

The third criterion, that of "indifference" to the result of the legal proceedings, essentially means that the litigation guardian cannot possess a conflict of interest vis-à-vis the interests of the disabled person. Indifference by a litigation guardian requires that the guardian be capable of providing a neutral, unbiased assessment of the legal situation of the dependent adult and offering an unclouded opinion as to the appropriate course of action. In essence the requirement of indifference on the part of a litigation guardian is a prerequisite for ensuring the protection of the best interests of the dependent adult. A litigation guardian who does not have a personal interest in the outcome of the litigation will be able to keep the best interests of the dependent adult front and centre, while making decisions on his or her behalf. Given the primacy of protecting the best interests of disabled persons, it is appropriate to require such disinterest on the part of a litigation guardian.

• [22] In Dey v Victorian Railways Commissioners in relation to the previous designation of a litigation guardian (a 'next friend'), Williams J stated:[14]

The next friend will be removed by the court if he has an interest, or is closely connected with some person who has an interest, which is adverse to that of the infant, or if for any reason the court considers that the infant's interest will not be properly protected by him. If there be any suspicion that the proceeding is an improper one or that the next friend is unfit to have the conduct of it, an inquiry may be directed on such matters, and if it appears on inquiry, or in clear cases without inquiry, that the proceeding is not for the infant's benefit it will be stayed, or, if the circumstances warrant it, dismissed with costs to be paid by the next friend.

• [23] I note that the Court has the power, if there is any suspicion that the proceeding is improper or if the litigation guardian is unfit to have conduct of it, to direct an inquiry (or on clear cases without an inquiry) and is of the view that proceeding is not for the person's benefit to at least stay the proceedings. That power no doubt arises under the Court's inherent jurisdiction and parens patriae jurisdiction. That the Court has the jurisdiction to direct an inquiry is consistent with the commentary appearing in Williams Civil Procedure Victoria in respect to the equivalent Victorian Rule and the cases cited therein:[15]

The court may direct an inquiry as to whether a proceeding brought on behalf of a person under disability is in fact for the benefit of the plaintiff (Rose v Monahan (1862) 1 W & W (E) 193; Re Corsellis; Lawton v Elwes (1884) 50 LT 703; M'Laughlin v Moore [1884] NSWLawRp 68; (1884) 5 LR (NSW) Eq 111; Muir v Harper [1899] ArgusLawRp 108; (1899) 5 ALR 248; Wallace v Wallace (No 2) (1899) 24 VLR 859), and whether the proceeding was properly brought (Huxley v Wootton (1912) 29 TLR 132, and whether the litigation guardian is a proper person to conduct it: Rose v Monahan (1862) 1 W & W (E) 193; Towsey v Groves (1863) 32 LJ Ch 225; Muir v Harper [1899] ArgusLawRp 108; (1899) 5 ALR 248. The court, if satisfied that the proceeding is not properly brought, may dismiss the proceeding and order the litigation guardian to pay the costs: Huxley v Wootton (1912) 29 TLR 132.

• [24] In this instance an inquiry process has somewhat been achieved by the filing of a summons for a stay, or at least the application for a stay has brought the matters sufficiently to the Court's attention to warrant inquiry.

• [25] It is the First Defendant's submission that on the face of the matters disclosed in the NTCAT decision, real questions are raised in respect to the role, and on-going role, of the litigation guardians. In particular, the degree of dysfunction and mistrust between siblings, two of whom are currently litigation guardians prosecuting proceedings against another sibling, raises serious enough concerns in respect to the impartiality of the litigation guardians that they are not acting in the best interests of Mrs Pascoe. As a result, and on the basis that the performance of their duty is subject to the scrutiny of the court, their conduct amounts to an abuse of process enlivening Rule 23.01. Presumably it is the First Defendant's submission that a stay should be imposed until the issue of the impartiality of the litigation guardians is resolved, and that would occur when they were both removed and replaced with uninterested guardians. Until then, it is submitted, the continuation of the proceeding in the circumstances amounts to an abuse of process.
• [26] The Plaintiffs' case is that this application is not an application for the removal of a litigation guardian. Further, it was submitted that a process exists for the removal or substitution of a litigation guardian by the Court, where the interests of a party so require. No application has been brought, either by a sibling (who would no doubt have standing), another appropriate/interested person or by the Public Guardian. In respect to the latter, the Plaintiffs now point to the appointment of the Public Guardian, who in terms of the order made by the NTCAT on 23 June 2025 has the authority in respect to "decisions regarding legal matters affecting her [Mrs Pascoe], including retaining and instructing legal representatives". That authority, it follows, would extend to requesting or demanding that the current ligation guardians voluntarily relinquish their roles, or absent compliance with such a request, to make application to the Court for a removal/substitution order. It is clear on the face of the NTCAT reasons that the Public Guardian is aware of the issues between the siblings, having furnished a report to the NTCAT which canvasses the views of each of the siblings in respect to the matters considered on the re-assessment application.
• [27] Further, the Plaintiffs point to a letter addressed to the Court from the Solicitor for the Northern Territory, on behalf of the Public Guardian, dated 21 July 2025. That letter was tendered by the Plaintiffs at hearing over objection from the First Defendant. I allowed the tender of the document on the basis that it contained material relevant to the considerations of the Court, although I did so noting that its receipt into evidence would be a matter of weight, namely as to what the Public Guardian knows or has been told. In summary that letter states:
  • The Public Guardian is aware of this application having been provided with a copy of the summons and supporting affidavit;
  • Indicates, that at least, in respect to the summary judgment application, the Public Guardian's view is that it should not be stayed and should proceed to judgment.
  • The Public Guardian does not presently intend to bring an application under Rule 15.03(4) to remove or substitute the litigation guardians.
  • The Public Guardian has no current concerns about the presently reserved summary judgment application.
  • The Public Guardian intends to monitor these proceedings and is cognisant of the need to continually assess whether the litigation commenced on Mrs Pascoe's behalf, remains in her best interests. The Public Guardian will revisit its position in the event that the summary judgment application is unsuccessful.
• [28] I note that the re-assessment application conducted by the NTCAT under s 36 of the Act, is a proceeding as defined which is required to be held before the NTCAT under s 76 of the Act. Pursuant to s 81 of the Act the Public Guardian would normally be a party to the application. Whilst I have no definitive evidence, I find that the Public Guardian was involved in the re-assessment process, at least to the extent of being aware of the views of each of the siblings, which no doubt has given it an appreciation of the issues raised by the NTCAT, and the reasons it was appointed the replacement guardian.
• [29] What can be read into the Public Guardian's position, on the basis of her solicitor's letter and involvement (or knowledge) in the NTCAT process is, there should not be a stay of at least the summary judgment application (and she has no concerns about that application) but she reserves the right to continually assess whether the litigation commenced in Mrs Pascoe's name is in Mrs Pascoe's best interests and she will revisit the position in the event that the summary judgment application is unsuccessful.
• [30] Additionally, at the commencement of this application counsel for the Plaintiffs indicated the intention of the Second Plaintiff to resign/withdraw/seek leave to be removed as litigation guardian, leaving the First Plaintiff as the sole litigation guardian. No substantive grounds were given and there was discussion between the Court and counsel as to the process, and whether the Second Plaintiff could simply resign or whether a Court order was required. No order was made, pending the resolution of this application and in anticipation of further directions from the Court.

• [31] This is an application for a stay of the proceeding until further order on the basis of an abuse of process. The abuse of process allegedly constituting a conflict of interest in the litigation guardians such that they are not capable of acting in the best interests Mrs Pascoe.
• [32] I am prepared to accept that the Court has the ability to order a stay of the proceeding, on the basis of an abuse of process, where it is established that the litigation guardian is abusing their position and/or duties (or if a conflict of interest arises or it is apparent they are not acting in the best interests of the person under a disability), and an application could or should therefore appropriately be made under Rule 15.03(4) for their formal removal or substitution. An application for removal or substitution would normally be made by an interested person with sufficient standing (presumably the same person who may have standing to make application to be appointed), on summons with supporting evidence (which would be subject to being tested to some degree by any opposing party). There is no application for the removal/substitution and no affidavit evidence before the Court in respect to any such application.
• [33] However, this matter is different to other cases where there may be issues concerning the performance of the duties of a litigation guardian, and where an application to remove a guardian may be necessary. In these circumstances, apart from the litigation guardians, behind them stands another guardian, the Public Guardian. The statutory functions of the Public Guardian are set out in s 61 of the Act. The Public Guardian holds an independent statutory office and must comply with the guardianship principles (as set out in s 4 of the Act) which includes exercising the decision maker's authority in the way that the decision maker reasonably believes is in the adult's best interests by seeking to obtain the adult's current views if practicable, taking into account the relevant considerations set out in s 4(3) of the Act and weighing up the relevant considerations giving them the weight the decision maker reasonably believes is appropriate in the circumstances. Section 4(6) of the Act, as noted by NTCAT, does not preclude the exercise of authority beneficial to another person.
• [34] In coming to the view the Public Guardian has, as set out in the letter to the Court, it could be assumed that the Public Guardian has done so on the basis that it is not in the best interests of Mrs Pascoe that the litigation guardians be removed (or that a stay be ordered pending steps to initiate their removal). It is not clear, but possibly on one view, if the summary judgment application is decided in favour of the Plaintiffs, the proceeding will come to an end (subject to any appeal), and that will be in Mrs Pascoe's interest (ie. her immediate interest). If the summary judgment is decided in favour of the First Defendant, with the prospect of further litigation, a re-assessment may need to be made as to whether further litigation is in Mrs Pascoe's longer term interest. That is, notwithstanding any argument that the proceeding itself may not have been brought in her interest, that it may now be finalised by summary judgment, might be in her interest.
• [35] The fact that there is a statutory guardian essentially standing behind the litigation guardians, with the powers to remove them (by request or on application to the Court), in my view, gives this matter a different character than the "ordinary" type of dispute regarding the duties of litigation guardians, which otherwise may run unchecked other than by supervision of the Court (or on specific removal application). The Public Guardian, in my view, is in a good position to assess and make a decision as to whether the existing litigation guardians are carrying out their duties in the best interests of Mrs Pascoe (as that is one of the Public Guardian's duties) or whether a course of action is. If the Public Guardian was of a view that the litigation guardians were not acting in the best interests of Mrs Pascoe, or the current course of action was not, I would expect a move to remove them, and for some decision in Mrs Pascoe's interests to be made. On the contrary, if the Public Guardian harboured no such concern, then I would expect nothing to be done.
• [36] I have made the assumptions that the Public Guardian is aware of the issues raised in the NTCAT decision and nonetheless has determined that she does not wish to make an application to remove or substitute a litigation guardian. So much is discernible from the Public Guardian's solicitor's letter to the Court.
• [37] I have considered, notwithstanding those assumptions, whether the Court should nonetheless further inquire into the issue of whether the litigation guardians' capacity, on the basis that potentially the whole proceeding (or a majority of it) up to and including the summary judgment application is "tainted" by the issues concerning the capacity of the litigation guardians. That is, if an abuse of process exists, whether it has always existed or substantially so, and does it continue to exist, such that it will taint the summary judgment outcome. For example, if the litigation guardians, in bringing this proceeding against the First Defendant were motivated by an interest contrary to the best interests of Mrs Pascoe, then possibly the whole proceeding has been tainted by an abuse. That would include the current reserved summary judgment application. It follows, from the Court's perspective, it may not be appropriate, if there is, or has been, an abuse of process (due to a conflict of interest in the litigation guardians) to consider it later after the summary judgment. The Court should not condone an abuse of process which has likely occurred and is ongoing. Alternatively, if the interests of Mrs Pascoe are paramount, for the litigation guardians and the Public Guardian, it may well be for her present benefit, notwithstanding what has occurred to date, that the summary judgment be decided, and the proceedings potentially be brought to an end. Alternatively, following that, if they are not brought to an end, it may be in Mrs Pascoe's interests for a proper assessment to follow as to whether continuing them was in her interests.
• [38] There is an argument that the proceeding to date has not been in the best interests of Mrs Pascoe and that was impliedly recognised in the reasons of the NTCAT who expressed concerns about the ability of the litigation guardians to have properly made the decision to commence proceedings in Mrs Pascoe's best interests under the Act.[16] There is an argument that the litigation guardians were not disinterested and a conflict of interest existed between them and the First Defendant, in terms of past negative familial relations. The Public Guardian is aware of those issues.
• [39] On the above basis, although there are concerns raised on the face of the NTCAT decision in respect to the motivation of the ligation guardians, that decision, along with the letter from the Public Guardian, is all the evidence this Court has. In my view, that alone is insufficient to ground good reason to order a stay on the proceedings for an abuse of process. However, I think it sufficient to give rise to a suspicion as to whether the proceeding is an improper one or that the litigation guardians are unfit to have the conduct of it, and as to whether proceedings were properly brought for the benefit of Mrs Pascoe, such that the Court may embark on an inquiry. Unfortunately, on the material presented to the Court on the stay application by the First Defendant, I am not in position to make a definitive and properly informed decision.
• [40] On that basis, in my opinion, in order for the Court to make an informed decision more is needed than just the NTCAT decision and a letter from the Public Guardian in order to be properly satisfied. I therefore intend to order the parties to provide further affidavit material to the Court in terms of addressing the following issues/questions.
• [41] The present litigation guardians are to address whether, in light of the NTCAT decision, they continue to hold the view that they hold no interest adverse to that of the person under a disability, consistent with the certificate which each of them filed with the Court pursuant to Rule 15.03(7). In particular, the litigation guardians should address whether, in light of the duties expected of them as set out above, why they are capable of providing a neutral, unbiased assessment of the legal situation of Mrs Pascoe and can offer an unclouded opinion as to the appropriate course of action, which in this instance is the continuation of the proceeding against the First Defendant.
• [42] In fairness, I would offer the First Defendant the opportunity to similarly provide input by way of affidavit as to any evidence which he says touches on the ability of the litigation guardians to perform their duties.
• [43] I would also request, as far as can be done through the litigation guardians, that the Public Guardian also provide an affidavit to the Court addressing the basis that the Public Guardian says that the continuation of these proceedings, or at least waiting until the determination of the summary judgment in light of the appointed litigation guardians, and matters raised in the NTCAT decision, is in the best interests of Mrs Pascoe.
• [44] Save for any self-initiated application/s for the removal of a litigation guardian/s, and the provision of further affidavits as requested, the proceeding will be stayed in the interim until that further material is received and considered, and a determination is made by the Court. As noted above, the Second Plaintiff has indicated an intention to seek to remove herself as a litigation guardian. Any such application should be made on summons with a supporting affidavit.
• [45] I therefore make the following orders:

(1) The parties are to file and serve affidavits addressing the matters noted at paragraphs [41] to [43] of these reasons, within three weeks of the publication of these reasons.

(2) The parties may make written submissions in respect to the matters raised in those affidavits within two weeks of service of the affidavits referred to in order (1) above.

(3) The application for a stay will otherwise be considered by the Court on receipt of those further materials.

(4) The proceeding will be stayed until further order pending the receipt of further affidavit materials and the resolution of the stay application, save for any self-initiated application by the litigation guardian/s for their removal or substitution. Any such application by the litigation guardian/s for removal or substitution is to be made within the three week period referred to in order (1) above.

[1] See also NTCAT decision dated 23 June 2025 referred to below at paragraph [15].

[2] It is understood that the failure to appoint a litigation guardian did not render the proceeding a nullity. In that respect, there is authority that a failure to appoint a litigation guardian constitutes an irregularity which may be cured by appointment of a person to act in that capacity and does not constitute a nullity see Clarey v Permanent Trustee Co Ltd [2005] VSCA 128 at [55].

[3] Section 4(6) of the Guardianship of Adults Act 2016 (NT) provides that a decision maker may exercise authority of a person under a guardianship order in a way that may be beneficial to another person.

[4] [2016] NTSC 6 at [14] citing the text Abuse of Process and Judicial Stays of Criminal Proceedings (Choo, 2nd ed, Oxford University Press).

[5] Secretary, Dept of Health and Community Services (NT) v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218, 258.

[6] See Derham AsJ in Vishniakov v Lay [2019] VSC 403 in the context of equivalent Order 15 of the Victorian Supreme Court (General Civil Procedure) Rules 2015, later applied in ABC v Catholic Archdiocese of Melbourne [2021] VSC 87 at [12]).

[7] See Doedens & Ors v Owen (No 2) [2018] SASC 23 citing Rhodes v Swithenbank (1889) 22 QBD 577 at 579.

[8] Elbourne v Troone Pty Ltd [1978] VicRp 15; [1978] VR 171 at 175.

[9] Although in that context "protection of the court" seems to be in respect to ensuring those who pursue or defend proceedings have the necessary mental capacity lest the proceedings become susceptible to challenge on the grounds of irregularity. See L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; [2006] 233 ALR 432 at [25], A v City of Swan [No 5] [2010] WASC 204 at [65], Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511 at [31].

[10] See Wheatley v The Public Trustee of Queensland as Litigation Guardian of BBJ [2020] QDC 84 citing Dauguet v Centrelink [2015] FCA 395 at [113].

[11] [1973] 3 All ER 25 at 38. Also see Williams Civil Procedure [I 15.02.35] Duty of Litigation Guardian.

[12] [2019] QSC 217 at [28-29].

[13] Wheatley v The Public Trustee of Queensland as Litigation Guardian of BBJ [2020] QDC 84 at [20] citing Gronnerud (Litigation Guardian of) v Gronnerud Estate [2002] SCR 38 417 at [20].

[14] [1949] HCA 1; (1949) 78 CLR 62 at 113-114.

[15] Williams Civil Procedure Victoria, paragraph 15.02.25, 'Inquiry whether proceeding properly brought'.

[16] Paragraph [15] of the NTCAT Reasons.