Ahmet v Jardine - [2014] VSCA 52

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0194

BARIYOW AHMET	Applicant
v
MELISSA JARDINE	Respondent

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JUDGES:	WARREN CJ and WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 March 2014
DATE OF JUDGMENT:	1 April 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 52
JUDGMENT APPEALED FROM:	Unreported, County Court of Victoria, Judge Kings, 27 November 2013

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PRACTICE AND PROCEDURE – Application for leave to appeal from order appointing litigation guardian – Supreme Court (General Civil Procedure) Rules 2005, Order 15 – Principles relating to appointment of litigation guardian – Whether substantial injustice if leave refused – whether sufficient doubt as to correctness to warrant leave

PRACTICE AND PROCEDURE – Application to admit fresh evidence on appeal from interlocutory application – When fresh evidence will be admitted – Right to cross-examine in interlocutory applications

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T S Monti SC with Mr K McDonald	Flemington & Kensington Community Legal Centre
For the Respondent	Mr P J Lawrie	Russell Kennedy Lawyers

WARREN CJ:

I have had the benefit of reading in draft form the reasons for judgment of Whelan JA. I agree with his Honour, for the reasons that he gives, that the applications should be dismissed.

WHELAN JA:

On 27 November 2013 Judge Kings in the County Court made an order appointing a litigation guardian for the fifth defendant in this proceeding. She gave her reasons orally. Efforts to obtain a transcript or audio recording of the reasons have been unsuccessful, but notes taken by the solicitor for the plaintiff indicate that the judge had said she relied upon reports by a psychologist, Michael Burge, a psychiatrist, Dr Ashok Mishra, and an affidavit by the fifth defendant’s solicitor, Benjamin Lloyd.

By a summons dated 10 December 2013 the applicant, who is the plaintiff in the County Court proceeding, seeks leave to appeal that order. By a further summons dated 14 March 2014 the applicant seeks leave to adduce fresh evidence on that application.

Relevant background

The applicant commenced this proceeding against the State of Victoria and four members or former members of Victoria Police alleging assault and other torts. The relevant incident occurred on 12 October 2004 when police attended the applicant’s flat after being called by a neighbour. The events that evening were the subject of a criminal trial at the conclusion of which the applicant was convicted of unlawful imprisonment, assault, intentionally causing injury, and rape; the victim being a woman who was present in the flat when the police arrived that day.[1]

[1]The circumstances are referred to in a decision of this Court: The Queen v Bariyow Ahmet [2009] VSCA 86.

The application and material before the judge

By a summons dated 9 October 2013 the solicitors for the fifth defendant sought orders dispensing with the requirement for the fifth defendant to provide answers to interrogatories and seeking the appointment of a litigation guardian for the fifth defendant. The judge below did not rule on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ahmet v Jardine

Details

AGLC: Ahmet v Jardine [2014] VSCA 52
Case: [2014] VSCA 52
Decision Date: 1 April 2014

CaseChat Overview and Summary

In the matter of Ahmet v Jardine, the applicant sought leave to appeal from a decision appointing a litigation guardian for the respondent, who was alleged to be mentally incapacitated. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the applicant would suffer substantial injustice if leave to appeal was denied and whether there was sufficient doubt as to the correctness of the primary decision to warrant leave. Additionally, the court had to determine whether fresh evidence could be admitted on appeal from an interlocutory application.

The court considered the principles governing the appointment of litigation guardians and the circumstances of the case. It acknowledged that the appointment of a litigation guardian was a serious matter, involving a significant intrusion into the respondent's autonomy. The court held that the applicant had demonstrated a substantial risk of injustice if leave to appeal was refused, as the decision to appoint a litigation guardian could significantly impact the respondent's rights and interests. The court also found that there was sufficient doubt as to the correctness of the primary decision to warrant leave, particularly in light of the evolving nature of the evidence regarding the respondent's capacity. Regarding the admission of fresh evidence, the court held that it would only be admitted if it was material and could not have been reasonably adduced at the earlier hearing. The court ultimately granted leave to appeal and ordered that fresh evidence be heard on the appeal.

Orders