DD v Lewis; DD v PP; DD v AA - [2024] NSWCA 103

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DD v Lewis; DD v PP; DD v AA [2024] NSWCA 103
Hearing dates: 1 May 2024
Date of orders: 1 May 2024
Decision date: 01 May 2024
Before: Payne JA at [1];
Mitchelmore JA at [8]
Decision:
2023/00363042
1. The summons seeking leave to appeal dated 15 February 2024 is dismissed with costs.
2. The applicant’s notice of motion filed on 15 February 2024 is dismissed with costs.
2023/00363056
1. The summons seeking leave to appeal dated 15 February 2024 is dismissed with costs.
2. The applicant’s notice of motion filed on 15 February 2024 is dismissed with costs.
2023/00363057
1. The summons seeking leave to appeal dated 15 February 2024 is dismissed with costs.
2. The applicant’s notice of motion filed on 15 February 2024 is dismissed with costs.

Catchwords:
CIVIL PROCEDURE — Summons seeking leave to appeal — Summons abandoned and dismissed
CIVIL PROCEDURE — Parties — Persons allegedly under legal incapacity — Tutors — Notice of motion seeking appointment of tutor — Notice of motion not pressed and dismissed

Cases Cited:
Bar-Mordecai v Rotman & Ors [2000] NSWCA 123

Category: Principal judgment
Parties:
DD (applicant)
Darren John Lewis (respondent)
PP (respondent)
AA (respondent)
Representation:
Counsel:
S Agosta (solicitor for DD who did not appear at the hearing)
R Brown (respondents)
Solicitors:
Nelson McKinnon Lawyers (applicant)
Carroll & O’Dea Lawyers (respondents)

File Number(s): DD v Lewis 2023/00363042
DD v PP 2023/00363056
DD v AA 2023/00363057
Publication restriction:
DD v AA (2023/363057)
Pursuant to s 578A of the Crimes Act 1900 (NSW), and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of, or any matter which could identify, the respondents is prohibited.
Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) there be no publication of the names and addresses of either party to the proceedings or any information tending to reveal the identity or address of either party, until further order of the Court.
DD v PP (2023/363056)
Pursuant to s 578A of the Crimes Act 1900 (NSW), and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of, or any matter which could identify, the respondents is prohibited.
Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that there be no further disclosure of the identity of the respondent and that the proceedings in this Court be known as DD v PP, until further order.
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law Division

Citation:

N/A (Yehia J); N/A (Walton J); [2023] NSWSC 1301 (Campbell J)

Date of Decision:

23 March 2023 (Yehia J); 17 October 2023 (Walton J); 27 October 2023 (Campbell J)

Before:

Yehia J; Walton J; Campbell J

File Number(s):

2018/00200890 (Yehia J); 2018/00204001 (Walton J); 2021/00155673 (Campbell J)

Judgment – EX TEMPORE

Amended in accordance with the principles in Bar-Mordecai v Rotman & Ors [2000]…

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.

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Details

Case: [2024] NSWCA 103
Decision Date: 01 May 2024

CaseChat Overview and Summary

In the matters of *DD v Lewis*, *DD v PP*, and *DD v AA*, the applicant, DD, sought leave to appeal and also filed a notice of motion seeking the appointment of a tutor for persons allegedly under legal incapacity. The proceedings were before the Court of Appeal of South Australia, constituted by Payne and Mitchelmore JJA.

The central legal issues before the Court were whether to grant leave to appeal and whether to appoint a tutor for the respondents. However, the applicant did not press the summons seeking leave to appeal or the notice of motion for the appointment of a tutor.

The Court of Appeal, noting that the summons seeking leave to appeal and the notice of motion were not pressed by the applicant, dismissed both. The Court applied the principle that where an application is abandoned or not pursued, it will be dismissed.

Consequently, the Court ordered that the summons seeking leave to appeal and the notice of motion filed on 15 February 2024 in each of the three matters be dismissed with costs.

Orders

Orders of the court

2023/00363042

1. The summons seeking leave to appeal dated 15 February 2024 is dismissed with costs.

2. The applicant’s notice of motion filed on 15 February 2024 is dismissed with costs.

2023/00363056

1. The summons seeking leave to appeal dated 15 February 2024 is dismissed with costs.

2. The applicant’s notice of motion filed on 15 February 2024 is dismissed with costs.

2023/00363057

1. The summons seeking leave to appeal dated 15 February 2024 is dismissed with costs.

2. The applicant’s notice of motion filed on 15 February 2024 is dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	DD v Lewis; DD v PP; DD v AA [2024] NSWCA 103
Hearing dates:	1 May 2024
Date of orders:	1 May 2024
Decision date:	01 May 2024
Before:	Payne JA at [1]; Mitchelmore JA at [8]
Decision:	2023/00363042 1. The summons seeking leave to appeal dated 15 February 2024 is dismissed with costs. 2. The applicant’s notice of motion filed on 15 February 2024 is dismissed with costs. 2023/00363056 1. The summons seeking leave to appeal dated 15 February 2024 is dismissed with costs. 2. The applicant’s notice of motion filed on 15 February 2024 is dismissed with costs. 2023/00363057 1. The summons seeking leave to appeal dated 15 February 2024 is dismissed with costs. 2. The applicant’s notice of motion filed on 15 February 2024 is dismissed with costs.
Catchwords:	CIVIL PROCEDURE — Summons seeking leave to appeal — Summons abandoned and dismissed CIVIL PROCEDURE — Parties — Persons allegedly under legal incapacity — Tutors — Notice of motion seeking appointment of tutor — Notice of motion not pressed and dismissed
Cases Cited:	Bar-Mordecai v Rotman & Ors [2000] NSWCA 123
Category:	Principal judgment
Parties:	DD (applicant) Darren John Lewis (respondent) PP (respondent) AA (respondent)
Representation:	Counsel: S Agosta (solicitor for DD who did not appear at the hearing) R Brown (respondents) Solicitors: Nelson McKinnon Lawyers (applicant) Carroll & O’Dea Lawyers (respondents)
File Number(s):	DD v Lewis 2023/00363042 DD v PP 2023/00363056 DD v AA 2023/00363057
Publication restriction:	DD v AA (2023/363057) Pursuant to s 578A of the Crimes Act 1900 (NSW), and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of, or any matter which could identify, the respondents is prohibited. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) there be no publication of the names and addresses of either party to the proceedings or any information tending to reveal the identity or address of either party, until further order of the Court. DD v PP (2023/363056) Pursuant to s 578A of the Crimes Act 1900 (NSW), and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of, or any matter which could identify, the respondents is prohibited. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that there be no further disclosure of the identity of the respondent and that the proceedings in this Court be known as DD v PP, until further order.
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Division Citation: N/A (Yehia J); N/A (Walton J); [2023] NSWSC 1301 (Campbell J) Date of Decision: 23 March 2023 (Yehia J); 17 October 2023 (Walton J); 27 October 2023 (Campbell J) Before: Yehia J; Walton J; Campbell J File Number(s): 2018/00200890 (Yehia J); 2018/00204001 (Walton J); 2021/00155673 (Campbell J)