McNamee & Anor v McNamee & Anor [2026] NTSC 3

McNamee & Anor v McNamee & Anor [2026] NTSC 3

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 matter for determination is whether the Court should extend a previously ordered interim stay, pending an investigation of relevant matters by the Public Guardian. The reason for the application for an extension of the interim stay is explained further below. The Plaintiffs support an extension however the First Defendant opposes it. The interim stay was ordered in the context of an application filed by the First Defendant which sought a stay of the proceedings until further Court order. The application for that stay of the proceedings was itself brought following an application for summary judgment by the Plaintiffs in respect to the proceedings more generally. The decision in respect to the summary judgment application is currently reserved. A more detailed background to these proceedings is set out in McNamee & Anor v McNamee & Anor.[1]
• [2] The interim stay was ordered pending further inquiry as to whether a conflict of interest existed in the litigation guardians.[2] In order to properly determine that matter, I ordered that the parties file and serve further affidavit material addressing certain matters.[3] In particular, I ordered that the litigation guardians address, in light of a recent Northern Territory Civil and Administrative Tribunal ('NTCAT') decision in related guardianship proceedings which saw the ligation guardians removed as statutory guardians and replaced with the Public Guardian, whether they continued to hold the view that they were still capable of performing the duties required of litigation guardians.
• [3] At the same time, I also requested that the Public Guardian provide information, where possible. As noted above, there had been related guardianship proceedings and the Public Guardian had been appointed as the statutory guardian for Mrs Pascoe, the person under a disability in these proceedings. The Public Guardian was aware of the NTCAT proceedings and the issues which arose in those proceedings, particularly in respect to the relationship between the McNamee siblings. Through her appointment as statutory guardian, the Public Guardian effectively gained the power to retain or remove/replace the litigation guardians in the proceeding. In the context of the stay application, the Public Guardian had provided a letter, via her solicitors, to the Court[4] indicating that, inter alia:

(a) The Public Guardian is aware of the application, having been provided with a copy of the summons and supporting affidavit.

(b) The Public Guardian's view, at least in respect to the summary judgment application, is that it should not be stayed and should proceed to judgment.

(c) The Public Guardian does not presently intend to bring an application under Rule 15.03(4) to remove or substitute the litigation guardians.

(d) The Public Guardian has no current concerns about the presently reserved summary judgment application.

(e) 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.

• [4] In the previous decision, I had noted (footnotes omitted):[5]

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. 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".

• [5] On the basis of the Public Guardian's letter stating that she had no concerns about the presently reserved summary judgment application and that it should not be stayed, I had requested the Public Guardian:[6]

...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.

• [6] The First Defendant filed an affidavit in the proceedings made 30 September 2025. The Public Guardian filed an affidavit made 30 September 2025[7] as an amicus curiae.[8] The Plaintiffs had not filed any affidavit material but indicated that they were prepared to do so pending the resolution of this application.
• [7] In short, the Public Guardian, through her affidavit, indicated that her previous position (that is, that the stay application should be refused and the summary determination decided) was based on financial considerations and the possibility that a timely determination of the summary judgment application would end any further financial impost on the assets of Mrs Pascoe in terms of legal costs incurred. That was not an unreasonable position to take in the circumstances. However, in light of the matters raised in the previous decision, the Public Guardian, through her affidavit, indicated that she was not presently in a position to determine if a continuation of the proceedings was in Mrs Pascoe's best interests. The Public Guardian indicated that she wished to embark on an investigation of the circumstances of the guardianship pursuant to s 65 of the Guardianship of Adults Act 2016 (NT) to determine if continuing the proceedings is in Mrs Pascoe's best interests. Following that process, the Public Guardian indicated that a number of options may then become available. This included:

(a) If the information gathered does not show that Mrs Pascoe wished the First Defendant live in and/or possess her property (as claimed by him), or the information does not allow a view to be reached either way, then the Public Guardian may decide that the summary judgment application should proceed on the basis that any person who makes a claim against the assets of the represented person bears the onus of evidencing that claim;

(b) If the summary judgment application were unsuccessful, then the Public Guardian may determine whether continuing the proceeding is ultimately in Mrs Pascoe's interests, in all of the circumstances; and

(c) If the information gathered shows that Mrs Pascoe did grant the First Defendant the right to live in and/or possess her property, then after considering all of the circumstances and counter-veiling factors, the Public Guardian may decide to discontinue the proceedings and honour whatever agreement was made between Mrs Pascoe and the First Defendant.

• [8] In terms of the status of the litigation guardians:[9]

(a) The Public Guardian did not presently intend to make any application to be appointed litigation guardian herself (or presumably take action to have the current litigation guardians removed or replaced).

(b) If the Public Guardian concluded that Mrs Pascoe did not intend for the First Defendant to retain the disputed property (or no decision could be made either way) and the summary judgment application should proceed, any initial taint or suspicion of taint caused by a conflict of interest in the litigation guardians would be cured by the Public Guardian's conclusion.

(c) Alternatively, if the Public Guardian determined that the First Defendant was justified in his claims, she may request that the litigation guardians discontinue the proceedings and if they did not, she would take steps to remove and replace them.

• [9] What the Public Guardian is suggesting in respect to the first option, is that notwithstanding any potential conflict of interest in the litigation guardians, if she forms a view contrary to the First Defendant's claims/defence (or if none could be established either way) and therefore deems that the proceeding should be continued, any taint on the proceedings (being caused by a conflict or perceived conflict of interest existing the litigation guardians to date) would be cured such that there was no need for the litigation guardians to be replaced before the determination, at least, of the summary judgment application. That is so because, presumably, a finding by the Public Guardian that the merits of Mrs Pascoe's claim against the First Defendant (as prosecuted by her litigation guardians to date) have ultimately been properly brought (on an independent assessment of the Public Guardian) regardless of the motivations of the litigation guardians. That is, notwithstanding an allegation that the litigation guardians may have been conflicted in their duties due to actual or perceived animosity amongst siblings, the claim brought in the proceeding would still be in Mrs Pascoe's interests to continue (at least to the determination of the summary judgment application).
• [10] Following the completion of any investigation, the Public Guardian indicated that she would be in a position to presumably make more definitive decisions and possibly provide more comprehensive material to the Court. That process was envisaged to take six months.[10]
• [11] The Plaintiffs do not oppose an extension of the interim stay for the purposes of allowing the Public Guardian to embark on an investigation to allow a decision and provide further information to the Court, if necessary. If the interim stay were not granted, the Plaintiffs indicated that they would be in a position to provide the affidavits previously ordered by the Court within a short period of time.
• [12] The First Defendant objected to an extension of the interim stay and any further delay in this matter. The First Defendant opposes any further delay in the proceeding on the following bases:

(a) The First Defendant's stay application was made to facilitate the immediate removal of the current litigation guardians and the appointment of another in their place.

(b) Any further delay would prejudice the First Defendant, who having incurred substantial costs in defending these proceedings, would have his claim/defence rendered nugatory if:

(i) Mrs Pascoe should pass away before the matter is discontinued, resolved or proceeds to trial, because her property will form part of her estate to be distributed amongst her children and the questions to be decided in the proceeding will be subsumed by that regrettable circumstance;[11] and

(ii) the First Defendant's asserted entitlement to remain in the premises is until the end of 2027 and, unless there is a trial in 2026, the outcome at best will be a pyrrhic victory for the First Defendant.

• [13] Additionally, the First Defendant submitted that the Public Guardian's indications as to what she intended to do in respect to the proceeding more generally would do nothing to immediately address the most pressing issue for determination. Namely, whether there was a conflict in the interest of the litigation guardians such that the proceedings were not and are not presently being prosecuted in the best interests of Mrs Pascoe. The First Defendant submitted that whether the substantive proceedings were rightly or wrongly brought (in terms of the facts), and what arrangements existed between Mrs Pascoe and the First Defendant in respect to the use of certain disputed property, would ultimately be a matter to be determined at trial. Additionally, it was submitted that even if the Public Guardian concluded that the Plaintiffs' claims against the First Defendant were meritorious, such a decision would not resolve the issue of a conflict in the duties of the litigation guardians.
• [14] As I observed in the previous proceeding, the performance of the duty of the litigation guardians is subject to the scrutiny of the Court.[12] The circumstances in which a litigation guardian may be removed are generally expressed broadly because of the different circumstances which can exist, and include: where there is a conflict (where there is an interest contrary to the person under a disability), where the litigation guardian may have been appointed inappropriately, or where the orders or relief sought are not in the interests of the person under a disability.[13] Additionally, on suspicion of an improper proceeding and after inquiry, if the proceeding is found not for the person under a disability's benefit, the Court will stay a proceeding.
• [15] Although the position of the Public Guardian has logic to it in terms of allowing her the time to decide if the proceedings were brought meritoriously (and therefore in Mrs Pascoe's interests), and therefore whether to perhaps continue the proceeding (or at least to allow the summary judgment application to be determined), there are other considerations at play. The Public Guardian may well decide that the proceedings are meritorious. Alternatively, the Public Guardian may not be able to determine the matter either way.
• [16] Notwithstanding the intentions of the Public Guardian, the immediate issue for determination on the First Defendant's application is whether there is a conflict of interest in the litigation guardians such that they can no longer perform their duties impartially on behalf of Mrs Pascoe. That potential conflict has arisen because of the issues and facts which arose out of the NTCAT guardianship proceeding. Those issues remain live and are ultimately for the Court to determine.
• [17] Whilst there may be some utility in waiting for a more comprehensive view from the Public Guardian's perspective, what will ultimately determine the stay application will be evidence from the litigation guardians about whether, in the circumstances, they believe they can still perform their duties, when weighed against any counter evidence from the First Defendant (and drawn from the NTCAT decision).
• [18] This proceeding was commenced in April 2022. There is prejudice to the First Defendant by further delay. It is in the interests of justice generally that the matter proceed to determination. That, of course, does not prevent the Public Guardian from undertaking whatever investigations are necessary to arrive upon a view at any time in respect to the appropriateness of the litigation guardians to perform their roles, or the ongoing merits of the proceeding more generally.
• [19] I therefore make the following orders:
  1. The Plaintiffs provide any affidavit material they seek to rely on, in accordance with order 1 made in McNamee & Anor v McNamee & Anor [2025] NTSC 59, within 14 days of the publication of these reasons.
     1. Following receipt of that further information, the First Defendant's application for a stay will be reserved for decision.

[1] [2025] NTSC 59 at [2]- [13] ('the previous decision').

[2] Order 4 of the previous decision.

[3] Which had been raised in the paragraphs [41]-[43] of the previous decision.

[4] Letter from the Solicitor for the Northern Territory dated 21 July 2025, tendered at the stay application hearing over objection of the First Defendant and admitted on the basis that it contained material relevant to the considerations of the Court, subject to being given relevant weight.

[7] Affidavit of Beth Walker made 30 September 2025.

[8] Which was allowed on the basis that the Plaintiffs had not facilitated the filing of the affidavit.

[9] Affidavit of Beth Walker made 30 September 2025 at [49]- [50].

[10] Noting the affidavit was made 30 September 2025.

[11] There was no evidence that Mrs Pascoe was necessarily going to pass away in the immediate future.

[12] At [19] of the previous decision, citing Elbourne v Troone Pty Ltd [1978] VicRp 15; [1978] VR 171 at 175. Also see: L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; [2006] 233 ALR 432 at [23]- [26].

[13] See: King & Ors v Fister & Anor [2019] QSC 217 at [28]- [29].