WW v AJFW

Submissions

1. The mother submitted that she was found by NCAT to be a person to whom a guardianship order could be made as she suffers from conditions of anxiety and depression, such as to be a disability. The Tribunal refused to make a guardianship order, because she has appointed two Enduring Guardians and there was no need to appoint a guardian instead of them. The Tribunal found that the plaintiff was able to give instructions to her lawyers in the various legal proceedings affecting her. However, the medical evidence suggested that proceedings brought by her son will be productive of stress and potentially fatal. While NCAT also found that the mother did not suffer from dementia, it was nonetheless submitted that the mother is a person in need of the Court's protection against the use by the son and daughter-in-law of court and tribunal processes against or about her.
2. The mother submitted that these were exceptional circumstances in which the parens patriae jurisdiction ought be exercised: Re Victoria [2002] NSWSC 647 at [40] (Palmer J); Re Frances and Benny [2005] NSWSC 1207 at [18] (Young CJ in Eq); Brown v Brown [2022] NSWSC 16 at [7] (Kunc J). The Court's reluctance to exercise the parens patriae jurisdiction where it is more appropriate for a specialist court or tribunal, or appellate body to deal with the matter was said to generally arise where there has already been a decision made by court or tribunal and an applicant in Equity seeks to relitigate in the Court's parens patriae jurisdiction matters already determined: Re Victoria at [36]-[40]. This was not such a situation.
3. Litigation brought by the son and daughter-in-law was said to be repetitive and vexatious, given the mother's disability and great age. The vexatious conduct was said to include the son's repudiation of the release he gave in the Deed of Settlement and Release entered into by the parties on 11 May 2021 and tendered to Henry J on 20 May 2021, such repudiation evidenced by his commencement of the proceedings in this Court. In the first NCAT proceedings, it was said to include three unsuccessful attempts to subpoena documents from Mr Solari. In the appeal against NCAT's decision, it was said to include subpoenas issued to two hospitals for records going back to 2020 and resulting in production of about 5,000 pages of medical records. Also in the appeal was the unsuccessful application to rely on an affidavit of grandson "A" deposing to conversations with the mother in a hospital ward whilst she was recovering from an operation. There was no question of law in the grounds of appeal, yet the appeal was unsuccessfully pressed.
4. The mother submitted that the second NCAT proceedings were very similar to the first. Further proceedings were threatened in respect of the son's chattels left in the Parents' house. The mother submitted that the son and daughter-in-law's conduct was aggravated by the scandalous content of the statutory declaration made by the son and filed in the second NCAT proceedings. This was said to include baseless allegations and other unkind comments about practitioners and others retained, appointed or otherwise close to the mother.
5. Alternatively, the mother sought relief under s 8 of the Vexatious Proceedings Act, relying on Attorney-General (NSW) v Wilson [2010] NSWSC 1008 where Davies J suggested that a small number of vexatious proceedings might satisfy s 8(1): at [13]-[14]. His Honour there applied the observations in Brogden v Attorney-General [2001] NZCA 208 on the comparable New Zealand legislation, which required that a person had "persistently instituted" vexatious proceedings. I note, however, that the Court of Appeal expressed caution in respect of Attorney-General (NSW) v Wilson, where care must be taken "before importing the approach taken to different statutory language" in construing s 8(1): in Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [48]; see the current caselaw at [127].
6. The mother submitted that NCAT did not have jurisdiction to make all of the final orders sought in these proceedings. At most, NCAT could make orders dismissing the second Tribunal proceedings under section s 55(1)(b) of the Civil and Administrative Tribunal Act. Such an application would be dealt with by NCAT "conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings" and the applicability of the General Steel principles: BDK v Department of Education and Communities [2015] NSWCATAP 129 at [66]. NCAT may, therefore, be reluctant to accede to such an application where it might be argued by the son and daughter-in-law that there was fresh evidence to be heard.
7. The son submitted that the parens patriae jurisdiction is only to be exercised in exceptional circumstances, and this was not such a case. It is the type of matter which NCAT deals with on a daily basis. The Tribunal has power under s 55(1)(b) of the Civil and Administrative Tribunal Act to make orders dismissing the second NCAT proceedings if thought fit. This is an application to effectively oust of the jurisdiction of NCAT. The orders sought would operate as a permanent stay, whatever the circumstances, where a stay was sought not only of these proceedings, but all future proceedings.

NCAT's power to stay or dismiss proceedings

1. Accepting that the Tribunal does not have power to make an order under the Vexatious Proceedings Act, it is necessary to consider the extent of NCAT's powers to permanently stay or dismiss the second NCAT proceedings.
2. As a statutory tribunal, NCAT has the powers conferred by its statute and the provisions of any enabling legislation which bestows jurisdiction and power on the Tribunal: see ss 28(2)(a), 29, Civil and Administrative Tribunal Act. NCAT comprises various divisions, including the Guardianship Division: s 16(1), Civil and Administrative Tribunal Act. The functions of NCAT under the Guardianship Act, NSW Trustee and Guardian Act and Powers of Attorney Act 2003 (NSW) are allocated to the Guardianship Division: s 16(2) and Sch 6, Pt 3, s 3(1), Civil and Administrative Tribunal Act.
3. In the Tribunal's "general jurisdiction", NCAT has jurisdiction "to make … interlocutory decisions of the Tribunal in the proceedings": s 29(2)(a), Civil and Administrative Tribunal Act. Section 4(1) of the Civil and Administrative Tribunal Act relevantly defines "interlocutory decision" as: "interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following - (a) the granting of a stay or adjournment, … (h) the summary dismissal of proceedings, … (i) any other interlocutory issue before the Tribunal."
4. The functions allocated to the Guardianship Division include any functions conferred on the Tribunal under the Civil and Administrative Tribunal Act in connection with the conduct of such proceedings "including the making of … interlocutory decisions of the Tribunal": Sch 6, Pt 3, s 3(2)(b).
5. Part 4 of the Civil and Administrative Tribunal Act deals with "Practice and procedure". Section 36 sets out the guiding principle to be applied, being "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". Section 38(1) provides that the Tribunal "may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision." Division 4, of Pt 4, concerns "Conduct of proceedings" and concludes with s 55: "55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - … (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,"
6. There is conflicting authority as to whether NCAT has the power to grant a permanent stay of its own proceedings. In Lindsay v Health Care Complaints Commission [2005] NSWCA 356, Hunt AJA doubted whether the Tribunal had jurisdiction to stay proceedings before it on the basis that the proceedings were an abuse of process. The legislation then considered was the power of the former Medical Tribunal created by the Medical Practice Act 1992 (NSW), pre-dating the Civil and Administrative Tribunal Act, and containing no express power. Hunt AJA considered there may be no need to imply such a power, when the Supreme Court has the power to stay proceedings in such cases: at [73]-[78]. In Council of the NSW Bar Association v Archer (2008) 72 NSWLR 246; [2008] NSWCA 164, Hodgson JA considered that it remained possible for NCAT to stay proceedings, notwithstanding the doubts expressed in Lindsay, noting "In my opinion it is not clear that it could not do so: at [40]. These early observations are of little assistance where their Honours were concerned with predecessor, and quite different, legislation.
7. The current legislation was considered in BTH v Public Guardian [2017] NSWCATAP 10, where the Tribunal noted that the granting of a stay was defined in the Act as an interlocutory decision and "[t]he stay power conferred … does not extend to ordering a stay which permanently ends the proceedings": at [49]-[50].
8. A different view was taken in Council of Law Society of NSW v Clarke [2017] NSWCATOD 142, where the Tribunal concluded that it had both an express and implied power to grant a permanent stay of proceedings which amounted to an abuse of process. As to the express power, the Tribunal was empowered to make interlocutory decisions as defined in s 4, where the reference to "stay" was "not qualified in any way having regard to whether it is permanent or not": at [50]. As to an implied power, the Tribunal followed Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129, where Mason P concluded that the former Administrative Decisions Tribunal had an implied power to grant a permanent stay in order to prevent an abuse of process. In Shirvanian, Mason P observed that a statutory court must be taken to be given, by implication, the powers necessary to exercise the expressly conferred jurisdiction, for example, an implied power to prevent abuse of its process, following Jackson v Sterling (1987) 162 CLR 612 at 623-634; Grassby v The Queen (1989) 168 CLR 1 at 16-17.
9. In Clarke, the Tribunal saw no reason why the same approach should not apply to the powers of NCAT, where the legislation by which the Tribunal was established gave a wide range of powers and functions including those conferred by ss 36 and 38: at [73]-[74]. The Tribunal concluded at [77]: "It seems to us that it would be anomalous that a tribunal having the functions and powers bestowed upon this Tribunal should not have the implied power to ensure that its own processes were not the subject of abuse and that its procedures were not capable of being stayed by it to avoid such abuse. There seems no reason why, as a matter of logic, these basic powers which repose in all courts including inferior courts created by statute should not also extend by the application of the same principles to the work of this Tribunal. …"
10. Clarke was followed in Health Care Complaints Commission v Karunaratne [2018] NSWCATOD 137 at [29], but whether the Tribunal had power to permanently stay proceedings was described as a "controversial issue which remains to be resolved" in Health Care Complaints Commission v Kirby [2019] NSWCATOD 47 at [6]. Similar doubts were expressed in Health Care Complaints Commission v Grygiel [2019] NSWCATOD 123 at [31]. In Holt v Dental Council of NSW [2020] NSWCATOD 37, the Tribunal re-considered and followed Clarke, having regard to the observations of Leeming JA in Attorney General for NSW v Gatsby [2018] NSWCA 254, which were read as "supportive of the possession of implied powers by [the] Tribunal to facilitate the exercise of its jurisdiction": at [75]. In the context of whether the Tribunal could determine separate questions, Leeming JA observed in Gatsby at [284]: "The power conferred upon the Tribunal by s 38(1) of the [NCAT] Act to determine its own procedure for which no provision is otherwise made, to be exercised in accordance with the obligation to give effect to the guiding principle of facilitating the just, quick, and cheap resolution of the real issues in the proceedings (see s 36(1) of the Act) suffice to empower the Appeal Panel to act as it did. In my view whether that is 'express' or otherwise is beside the point."
11. In Alexakis v Health Care Complaints Commission [2021] NSWCA 217, the Court was considering the Tribunal's power to stay proceedings until determination of other proceedings pending in the Supreme Court. The Court observed, "… the power to grant a stay may be found in s 36(1) (powers to determine own procedures) and s 51 (power to grant adjournments) of the Tribunal Act": at [6]. Presumably, the Court intended to refer to s 38(1), which provides that the Tribunal may "determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision." In Council of the Law Society of New South Wales v McGlinchey [2021] NSWCATOD 147, the Tribunal noted, "If these observations are correct, it is arguable that s 38(1) of the NCAT Act also gives the Tribunal power to grant a permanent stay": at [10].
12. Clarke was recently followed in Council of New South Wales Bar Association v de Robillard [2022] NSWCATOD 122 at [67]. In Commissioner of Police v EMB [2022] NSWCATAP 85, the Appeal Panel continued to note that there was "some doubt" as to whether the Tribunal had the power to permanently stay proceedings but noted that the Tribunal may dismiss proceedings under s 55(1)(b) of the Civil and Administrative Tribunal Act: at [6].
13. The reasoning in Clarke is compelling, but I am reluctant to resolve this controversy on an expedited matter, where the parties' senior counsel did not address this in any detail. Further, whilst there is a divergence of views in the authorities about whether NCAT has the power to permanently stay its own proceedings, it has an express statutory power under s 55(1)(b) of the Civil and Administrative Tribunal Act to dismiss proceedings at any stage if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance. In BDK v Department of Education and Communities [2015] NSWCATAP 129, the Tribunal considered that s 55(1)(b) conferred a broad power, at [66]: "In our view a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s 55(1)(b). The intent of the provision, as we see it, is to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While 'misconceived' and 'lacking in substance' may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are 'frivolous' or 'vexatious', conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings."
14. Such an approach was endorsed in Minister for Education and Early Childhood Learning v Zonnevylle (2020) 103 NSWLR 91 at [45] (per McCallum JA, Macfarlan and Leeming JJA agreeing). So, for example, in Kirby the Tribunal concluded, "Even if NCAT lacks the power to permanently stay proceedings, if the proceedings are found to be an abuse of process, in my view s 55(1)(b) of the NCAT Act would permit the Tribunal to dismiss the proceedings on the ground that they are vexatious": at [7].
15. As such, the Tribunal has ample power to dismiss the second NCAT proceedings if they are indeed vexatious. True it is that the son and daughter-in-law may oppose such an order being made on the basis that there is fresh evidence to be heard. But the Tribunal is also best placed to judge the extent to which the issues raised by the second NCAT proceedings duplicate the issues raised in the earlier proceedings, bearing in mind the events which have occurred and any relevant changes in the mother's health in the time that has passed since the earlier proceedings were determined.

parens patriae jurisdiction

1. Turning then to the mother's primary claim for relief, in Department of Health & Community Services v JWB & SMB ("Marion's Case") (1992) 175 CLR 218; [1992] HCA 15, Mason CJ and Dawson, Toohey, Gaudron JJ observed that the parens patriae jurisdiction "springs from the direct responsibility of the Crown for those who cannot look after themselves; it includes infants as well as those of unsound mind": at 259. Their Honours described the Crown's inherent jurisdiction "to do what is for the benefit of the incompetent" (citing Re Eve [1986] 2 SCR 388) by reference to the explanation of Lord Eldon in Wellesley v The Duke of Beaufort (1827) 2 Russ 1 at 20: "[It] belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown round them."
2. Although the parens patriae jurisdiction is "extremely broad", it is "exercised cautiously"; there must be some clear justification for a Court's intervention: Marion's case at 280 (per Brennan J) (citations omitted). In Re M (No 4) - BM v Director-General, Department of Family and Community Services (named Department of Community Services in Summons) [2013] NSWCA 97, Ward JA also observed that "exceptional circumstances are required for this Court to interfere with orders that have been made by judicial officers exercising specialist jurisdiction such as those in the Children's Court": at [22]. See likewise Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157 at [37]-[40] (per Palmer J); Re Frieda and Geoffrey [2009] NSWSC 133; (2009) 40 Fam LR 608 (per White J); Re Frances and Benny at [18] (per Young CJ in Eq); Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79 at [20]-[22] (per Hodgson CJ in Eq); Director-General of the Department of Community Services v Priestley [2004] NSWSC 639 at [8] (per Young CJ in Eq); GR v Secretary, Department of Communities and Justice [2020] NSWSC 739 at [201] (per Ward CJ in Eq); Brown v Brown [2022] NSWSC 16 at [7] (per Kunc J, in respect of Family Court proceedings).
3. I am not satisfied that the Court should exercise its parens patriae jurisdiction to injunct the son and daughter-in-law from instituting any further proceedings against the mother. On the basis of the evidence before the Tribunal, the mother is able to attend to her own welfare. After reviewing detailed and competing medical evidence, the Tribunal considered that the mother did not have dementia. Despite suffering from anxiety and depression, the Tribunal was also satisfied that the mother had capacity to give instructions in legal proceedings; the mother had successfully confronted a number of highly stressful financial and legal matters.
4. According to the conduct of these proceedings, the mother continues to have mental capacity and the ability to give instructions. The mother made an affidavit, albeit brief. The mother is competent to instruct lawyers, and she is instructing lawyers, including senior counsel, to safeguard her interests.
5. Mr Watson-Munro, who reviewed the mother on 18 March 2024, noted that the mother was well oriented in time, place and person and clearly recalled her recent interactions with the psychologist. The mother expressed a firm view that she does not want to be placed in a situation where she is in the same NCAT hearing room as her son and daughter-in-law, without the support of a lawyer. The mother reported to Mr Watson-Munro that the prospect of this occurring had escalated her anxiety and depression, and was interfering with her sleep, and that she wanted the proceedings to end. Mr Watson-Munro expressed the opinion that the mother will require ongoing and frequent psychological intervention if she is required to participate in the second NCAT proceedings in a manner that involves attending NCAT on a number of occasions and being questioned as a witness by the son and daughter-in-law whilst endeavouring to conduct her own case without a lawyer.
6. The mother would require the leave of the Tribunal to be represented by lawyers in the second NCAT proceedings. Leave is not infrequently granted, as legal representation is often of assistance to the parties and to the Tribunal. The mother has assembled medical evidence to support an application for leave, which was granted in the first NCAT proceedings. The grant or refusal of leave is entirely a matter for the Tribunal, but there is no evidence before me of any circumstance that would render it unlikely for the mother to be granted leave to be legally represented in the second NCAT proceedings. The mother has not established that the scenario that she has self-reported as escalating her anxiety and depression, and that Mr Watson-Munro has opined would result in the mother requiring psychological intervention, is a probable scenario in the second NCAT proceedings.
7. I accept that any legal proceedings concerning the mother are stressful to her as, indeed, such proceedings would be stressful to most people. But the mother is able to attend to her own welfare by instructing her legal representatives to apply to the Tribunal for leave for her to be legally represented, and to dismiss the second NCAT proceedings summarily as vexatious if appropriate. The Guardianship Division is also a specialist tribunal best placed to assess whether the orders sought by either party are appropriate. No exceptional circumstances have been established which would warrant this Court's intervention.
8. The terms of the orders sought under the parens patriae jurisdiction also go too far, seeking orders prohibiting the institution of any proceedings against or concerning the mother. The circumstances in respect of an elderly person's health and mental state may change. The mother, now aged 90, is asking me to prevent her son from making any application to the Tribunal if, for example, her medical situation should deteriorate and the persons presently chosen as her enduring guardians should prove inappropriate or no longer wish to accept that role. This application fails.

Section 8 of the Vexatious Proceedings Act

1. In the alternative, the mother sought an order under s 8(1) of the Vexatious Proceedings Act, which provides: "Making of vexatious proceedings order (1) When orders may be made An authorised court may make an order under this section (a vexatious proceedings order) in relation to a person if the court is satisfied that: (a) the person has frequently instituted or conducted vexatious proceedings in Australia, or (b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia." The son was said to fall within s 8(1)(a) and the daughter-in-law within s 8(1)(b) as "acting in concert" with the son.
2. Determining whether to make a vexatious proceedings order against a person involves four steps: first, to identify the "proceedings" the subject of the application which are said to be vexatious; second, to determine which, if any, of those proceedings is "vexatious" within the meaning of s 6; third, to determine whether the person has "frequently" instituted or conducted vexatious proceedings in Australia within the meaning of s 8(1); and, finally, to determine the manner in which the discretion granted by s 8 is to be exercised: Collier v Attorney-General (NSW) [2023] NSWCA 273 at [45] (per Kirk JA) following Zepinic v Chateau Constructions (Aust) Ltd [2018] NSWCA 317 at [13]-[15].
3. If these elements are satisfied, then the Court may make an order of the kind described in s 8(7) of the Vexatious Proceedings Act, which provides: "Orders that may be made by Supreme Court The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person: (a) an order staying all or part of any proceedings in New South Wales already instituted by the person, (b) an order prohibiting the person from instituting proceedings in New South Wales, (c) any other order that the Court considers appropriate in relation to the person."
4. That is, the Court has a discretion whether to make an order and, if so, the nature of the order that should be made: Teoh v Hunters Hill at [44]. The Court should exercise restraint when considering the scope of a vexatious proceedings order, recognising the important principle of open access to justice: Proietti at [22], following Potier at [17] (Basten JA). An order restricting a person's access to the courts is a very serious matter and, as such, a vexatious proceedings order is not to be made lightly. The purpose of such an order is not to punish a litigant for past misdeeds but to shield other litigants from harassment and to protect the Court from the expense, burden and inconvenience of baseless and repetitious suits: Teoh v Hunters Hill at [56]; citing Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [3] (Perram J).
5. Turning to the first step, s 4 widely defines "proceedings" as follows: "Meaning of "proceedings" In this Act, proceedings includes: (a) any civil proceedings, criminal proceedings or proceedings before a tribunal, and (b) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and (c) any proceedings taken in connection with or incidental to proceedings pending before a court or tribunal, and (d) any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings, criminal proceedings or proceedings before a tribunal, and (e) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way."
6. Section 5 of the Vexatious Proceedings Act contains a similarly wide definition of "institute". I have endeavoured to describe the "proceedings" between the mother, son and daughter-in-law, both substantive and interlocutory. The son and daughter-in-law have sued, and been sued by, the mother in relatively equal measure.
7. The second step is to determine which, if any, of the proceedings are vexatious. Section 6 defines "vexatious proceedings" to include: "(a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings."
8. Although the definition is not expressed to be exclusive, it would be a "rare case where proceedings would be found to be 'vexatious proceedings' unless they could fairly be categorised as falling under one of the descriptions in s 6": Mahmoud v Attorney-General of New South Wales [2017] NSWCA 12 at [21] (per Payne JA, Beazley P and Macfarlan JA agreeing). The mother relied, in particular, on sub-section (d) of the s 6 definition in this case.
9. Section 6 does not specify the matters that the Court should take into account in deciding whether each of the proceedings relied on (or a sufficient number of them) satisfy the definition of "vexatious proceedings": Teoh v Hunters Hill at [52]. The reference in s 6(a) to "proceedings that are an abuse of the process of a court or tribunal" invokes a "vast body of case law in relation to the doctrine of abuse of process", underpinned by the importance of finality as an element of justice: Proietti v Proietti [2024] NSWCA 48 at [12]-[13] (per Bell CJ, Kirk and Stern JJA). Ordinarily, the court that heard and decided the earlier proceedings will have been best placed to determine whether they were an abuse of process or instituted without reasonable grounds but, given the seriousness of the consequences of making a vexatious proceedings order, it remains open for the court hearing the application to depart from such findings, although very persuasive material is required to justify such a departure: Teoh v Hunters Hill at [53]-[54].
10. I was not taken to any suggestion by NCAT, in the first Tribunal proceedings, that those proceedings, or any interlocutory steps taken in those proceedings, were regarded by the Tribunal as an abuse of process or pursued without reasonable grounds. While the appeal to this Court was unsuccessful, I did not understand Lindsay J or Kunc J to suggest that the appeal proceedings were an abuse of the processes of this Court, albeit Lindsay J suggested that some of the matters sought to be agitated here would better be the subject of a further application to NCAT.
11. In order to address whether a person's conduct is vexatious, it is necessary to "have regard in more detail to the circumstances" in which each of the applications made by the person were made: Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [67]. Each procedural step taken by the son, on which the mother relied in support of this application, appears to have been explicable. The scope of the summons sought to be issued by the son to Mr Solari and others were curtailed by the Tribunal. The son sought to review the Tribunal's decision and had some success in this regard. Subsequent summonses were issued to Mr Solari; it appears from the transcript of the NCAT proceedings that these summons were generally permitted. The Tribunal did not observe that the son's actions were an abuse of process, instituted to harass or annoy, or pursued without reasonable ground. The same can be said of the son's subpoena issued in the appeal proceedings, and the curtailment of the scope of those subpoena when challenged.
12. Further, the son and daughter-in-law were represented in the Tribunal proceedings and this Court by counsel, including senior counsel, together with an obviously competent and professional solicitor. I infer that the steps taken in the Tribunal proceedings and in this Court were with the benefit of legal advice.
13. Whether the second NCAT proceedings are vexatious is an issue which the Tribunal will have to determine, should the mother bring an application to dismiss the proceedings under s 55(1)(b) of the Civil and Administrative Tribunal Act. There are certainly elements of the son's application, and the supporting evidence, which appear to go over old ground. Sometimes it is necessary to do this in order to put allegedly fresh evidence in context or to demonstrate that the basis on which the Tribunal proceeded in the first NCAT proceeding was, as revealed by that fresh evidence, incorrect. That is properly a matter for the Tribunal to resolve. Whether the son's allegations made in the second NCAT proceedings in respect of the mother's legal team are offensive to those lawyers is, with respect, not the point; the proceedings are ultimately not about them.
14. The third step is to determine whether the son and daughter-in-law have "frequently" instituted or conducted vexatious proceedings, where "frequently" poses a "relatively low threshold": Potier v Attorney-General in and for the State of New South Wales [2015] NSWCA 129 at [114] (per Leeming JA). Both the quality of the vexatiousness of the proceeding, and the nature of the proceeding itself, informs the assessment of frequency: at [116]. As Leeming JA observed at [117]: "I can readily envisage circumstances where a litigant commences only a handful of large proceedings, making serious allegations without any proper basis, but which occupy a significant amount of time and resources of parties and the courts, which could satisfy the statutory test of 'frequently'. This illustrates the fact that '[t]he issue posed by the statutory term "frequently" is not to be assessed merely by an arithmetic calculation': Viavattene [v Attorney General (NSW) [2015] NSWCA 44] at [49]."
15. Where a person commences both vexatious and non-vexatious proceedings, the proportion of proceedings which are found to be vexatious is not relevant to whether the person has instituted vexatious proceedings "frequently", but will be highly relevant to the exercise of the Court's discretion to make an order, where such an order will operate on both vexatious and non-vexatious proceedings: Potier at [119]-[120]; Proietti v Prioetti [2024] NSWCA 48 at [18]-[19]. In Teoh v Hunters Hill, the Court (Beazley P, Emmett JA and Sackville AJA) also observed that a pattern of repeated vexatious applications within a limited period of time may satisfy the language of the statute, particularly where a litigant "repeatedly challenges a decision in a manner that demonstrates an unwillingness or inability to accept that the challenge has been rejected and that there are no grounds for further challenges": at [49] (per Beazley P, Emmett JA and Sackville AJA).
16. Where the mother points to a number of interlocutory steps taken by the son and daughter-in-law, being the issue of summons to Mr Solari in NCAT and subpoenas to hospitals in this Court, Ball J's observations in Siteberg Pty Ltd v Maples [2010] NSWSC 1344 are apposite, at [32]: "In determining the question of frequency, it is also important to bear in mind the nature of the proceedings. It is more difficult to say that a person has commenced proceedings frequently where many of the proceedings involve interlocutory applications that are a normal incidence of the principal proceedings. Those interlocutory applications may be vexatious because they are made in furtherance of proceedings which themselves are vexatious. But it does not necessarily follow that the person making the applications has brought vexatious proceedings frequently. It is necessary to examine the nature of the applications to determine whether they are simply a consequential aspect of the original proceedings or something different for the purpose of assessing the question of frequency. Conversely, the court may be more willing to conclude that vexatious proceedings are brought frequently where the proceedings are brought against the same person or involve the same subject matter. The court may also be more willing to find that vexatious proceedings are brought frequently where the claim is fanciful. …"
17. Assuming, for the moment, that the second NCAT proceedings are vexatious, then I am not satisfied that it can be said that the son and daughter-in-law have "frequently" instituted vexatious proceedings. The interlocutory processes in the first NCAT proceedings and in the appeal proceedings in this court are generally explicable and appear to have been undertaken under the ministrations of a solicitor and senior counsel. I do not consider that this element has been satisfied.
18. This is not to say that the second NCAT proceedings are meritorious or that an application under s 55(1)(b) may not be warranted, but simply to say that the elements of the Vexatious Proceedings Act are not satisfied. For these reasons, I dismiss the Summons with costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 June 2024