IA v TA

Case [2016] NSWCA 179 29 July 2016

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Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: IA v TA [2016] NSWCA 179
Hearing dates: 20 June 2016
Decision date: 29 July 2016
Before: Bathurst CJ; Simpson JA; Payne JA
Decision:
(1) The requirements of r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW) be dispensed with in relation to the commencement and carrying on of these proceedings by way of application for leave to appeal and appeal.

(2) Leave to appeal granted on grounds limited to those grounds contained in the amended draft Notice of Appeal filed with the Court on 11 May 2016.

(3) Deem the draft Notice of Appeal filed with the Court on 11 May 2016 to be filed as a Notice of Appeal.

(4) Appeal allowed:

(a) Set aside the orders of the primary judge dated 20 July 2015, 3 August 2015 and 27 November 2015 in the Equity Division proceedings no. 2015/19513 and the Common Law Division proceedings no. 2015/186082; and

(b) Remit the matter to the Equity Division to determine the application in accordance with these reasons.
(5) Each party pay their own costs of the appeal.
Catchwords: PROTECTIVE JURISDICTION – where applicant is the subject of a managed estate order and has been appointed a tutor for the purposes of litigation – applicant a protected person under the NSW Trustee and Guardian Act 2009 (NSW) – application for leave to appeal without tutor – whether the primary judge should have made arrangements to hear the oral evidence of the applicant’s treating psychiatrist – whether the applicant was denied procedural fairness
Legislation Cited: Civil Procedure Act 2005 (NSW) ss 14, 140
NSW Trustee and Guardian Act 2009 (NSW) ss 40, 41, 86
Uniform Civil Procedure Rules 2005 (NSW) r 7.14
Cases Cited: A v A [2015] NSWSC 1778
A v A [2016] NSWCA 17
H v H [2015] NSWSC 837
Mao v AMP Superannuation Ltd [2015] NSWCA 252
Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402
Category: Principal judgment
Parties: IA (applicant)
TA (first respondent)
NSW Trustee and Guardian (second respondent)
Representation:
Counsel:
Mr Hooke SC / Mr Masur (applicant)
Mr Fitzsimmons / Ms Warren (first respondent)
Ms Brouwer (second respondent)
Solicitors:
Moray & Agnew (first respondent)
NSW Trustee and Guardian (second respondent)

File Number(s): 2015/242864
Publication restriction: Party names suppressed
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Equity Division – Protective List

Citation:

[2015] NSWSC 1778

Date of Decision:

27 November 2015

Before:

Lindsay J

File Number(s):

2015/19513
2015/186082

Judgment

THE COURT: On 20 July 2015, orders were made by the primary judge under s 41 of the NSW Trustee and Guardian Act 2009 (NSW) appointing the second respondent, the NSW Trustee and Guardian, as the applicant’s financial manager.
On 3 August 2015, the second respondent was appointed as the applicant’s tutor to conduct legal proceedings in the District Court on his behalf.
On 27 November 2015, the primary judge dismissed an application to discharge those earlier…

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 IA v TA

Details

AGLC: IA v TA [2016] NSWCA 179
Case: [2016] NSWCA 179
Decision Date: 29 July 2016

CaseChat Overview and Summary

The applicant, IA, who was the subject of a managed estate order and appointed as a tutor for litigation purposes, sought leave to appeal a decision of the primary judge. IA was a protected person under the *NSW Trustee and Guardian Act 2009* (NSW). The appeal concerned whether the primary judge erred in failing to make arrangements to hear the oral evidence of IA's treating psychiatrist and whether IA was denied procedural fairness.

The issues before the Court of Appeal were whether the primary judge had a duty to ensure that IA's oral evidence, specifically from her treating psychiatrist, was heard, and whether the failure to do so constituted a denial of procedural fairness. The Court was also required to consider the procedural requirements for IA to commence and carry on the proceedings as a protected person.

The Court of Appeal found that the primary judge had erred in not making adequate arrangements for the oral evidence of the treating psychiatrist to be heard, which amounted to a denial of procedural fairness. The Court applied principles of procedural fairness, emphasizing the importance of a party being able to present their case effectively, particularly when their capacity is in question. The Court also dispensed with certain procedural requirements under rule 7.14 of the *Uniform Civil Procedure Rules 2005* (NSW) to allow the appeal to proceed.

The appeal was allowed. The orders of the primary judge were set aside, and the matter was remitted to the Equity Division for determination in accordance with the Court of Appeal's reasons. Each party was ordered to bear their own costs of the appeal.

Orders

Orders of the court

(1) The requirements of r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW) be dispensed with in relation to the commencement and carrying on of these proceedings by way of application for leave to appeal and appeal.

(2) Leave to appeal granted on grounds limited to those grounds contained in the amended draft Notice of Appeal filed with the Court on 11 May 2016.

(3) Deem the draft Notice of Appeal filed with the Court on 11 May 2016 to be filed as a Notice of Appeal.

(4) Appeal allowed:

(a) Set aside the orders of the primary judge dated 20 July 2015, 3 August 2015 and 27 November 2015 in the Equity Division proceedings no. 2015/19513 and the Common Law Division proceedings no. 2015/186082; and

(b) Remit the matter to the Equity Division to determine the application in accordance with these reasons.

(5) Each party pay their own costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

IA v TA [2016] NSWCA 179

Most Recent Citation

Bain v Bain [2022] NSWDC 415

Cases Citing This Decision

Klewer v Klewer [2024] NSWSC 1304
Citation 1 (Para 12)

…174 and 175. There is no universal test as to legal incapacity. It must be assessed by reference to the individual and the task in question; IA v TA [2016] NSWCA 179. It is important also to remember that a person of adult age is presumed to have the mental capacity to manage his property and affairs until the con…
Bain v Bain [2022] NSWDC 415
Citation 2 (Para 13)

…the jurisdiction to determine whether a person has or lacks legal capacity requires the Court to determine that question as a matter of fact: IA v TA [2016] NSWCA 179, at [72]. That exercise must be guided by appropriately focussed expert evidence in each particular case.…
KJ v SJ [2020] NSWSC 932
Citation 3 (Para 20)

…istance provided to the Court on behalf of Perpetual and Trust Company: P v NSW Trustee and Guardian ( supra ) at [160]–[167]; see also IA v TA [2016] NSWCA 179 at [56]–[57]. I therefore made an order on the first day of the hearing dispensing with the requirements of Part 7, Division 4 of the UCPR in relation to S…
IA v TA (No 3) [2019] NSWCA 6
Citation 4 (Para 14)

…On 29 July 2016, this Court in TA v IA [2016] NSWCA 179 (Bathurst CJ, Simpson & Payne JJA) allowed the appeal on the basis that the primary judge was required to permit Mr IA to call evidence from his treating psychiatrist, Dr Smith. The failure to do so was an error. The Court made orders setting aside the orders…
TA v IA [2017] NSWSC 1597
Citation 5 (Para 43)

…ed, limited to those grounds contained in an amended draft notice of appeal filed with the Court on 11 May 2016, and the appeal was allowed ( IA v TA [2016] NSWCA 179). Orders were made to dispense with compliance with the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to the extent that r 7.14(1) would prevent IA…
Mao v AMP Superannuation Limited [2017] NSWSC 987
Citation 6

…ALR 250; [2003] HCA 31 Green v Jones [1979] 2 NSWLR 812 Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 H v H [2015] NSWSC 837 IA v TA [2016] NSWCA 179 Iskandar v Mahpur (No 6) (Supreme Court (NSW), Slattery J, 15 February 2012, unrep) JMK v RDC and PTO v WDO [2013] NSWSC 1362 M v M [2013] NSWSC 1495 M v Men…
IA v Ta (No 3) [2017] NSWCA 178
Citation 7 (Para 1)

…se management of the Protective List matter which was remitted by this Court for further hearing following the allowing of an appeal by IA: IA v TA [2016] NSWCA 179 (Bathurst CJ, Simpson and Payne JJA).…
Re WS [2017] NSWSC 745
Citation 8 (Para 28)

…R rule 7.13 relating to the appointment of a tutor ( Rappard v Williams [2013] NSWSC 1279 at [62]-[83]; A v A [2015] NSWSC 1778 at [53]-[82], IA v TA [2016] NSWCA 179 at [55]). Earlier judgments, here cited, cover that field adequately enough.…
Estate MPS, deceased [2017] NSWSC 482
Citation 9

…erry [2016] NSWSC 780 Holden Francis Frisoli v Natasha Anastasia Kourea [2013] NSWSC 1166 IA v TA [2016] NSWCA 179 In re the Will of FB Gilbert (dec’d) (1946) 46 SR (NSW) 318 Jodell v Woods [2017] NSWSC 143 Luciano v Rosenblum (1985) 2 NSWLR 65 McLean v Public Trustee [2001] NSWSC 970 Meres v Meres [2017] NSWSC 285…
Re Uf [2017] NSWSC 437
Citation 10 (Para 78)

…al could not reach its conclusion that F did not have capacity to manage her affairs without psychiatric or other medical evidence. She cited IA v TA [2016] NSWCA 179 where the Court of Appeal concluded that the primary judge in that case was not free to make an order under s 41 of the NSW Trustee and Guardian Act…
Ta v IA [2016] NSWSC 1912
Citation 11 (Para 1)

…motion the Court will use the same pseudonyms for the parties that the Court of Appeal used in the recent appeal in the proceedings: see IA v TA [2016] NSWCA 179.…
IA v TA (No 2) [2016] NSWCA 349
Citation 12 (Para 1)

…cceeded in an appeal from orders which had been made by Lindsay J in separate proceedings in the Equity Division and the Common Law Division: IA v TA [2016] NSWCA 179. That judgment was delivered on 29 July 2016. The matter was remitted to the Equity Division.…

See all citing cases →

Cases Cited

A v A [2016] NSWCA 17
Citation 1 (Para 48)

…ong list of other orders, including a request for an emergency hardship payment. Gleeson JA dismissed the notice of motion on 16 February 2016: A v A [2016] NSWCA 17.…
A v A [2015] NSWSC 1778
Citation 2 (Para 3)

…y judge dismissed an application to discharge those earlier orders and declined to make orders under s 86 of the NSW Trustee and Guardian Act : A v A [2015] NSWSC 1778.…
Mao v AMP Superannuation Ltd [2015] NSWCA 252
Citation 3 (Para 57)

…prevent him from carrying on any such proceedings. This Court has power to do so under s 14 of the Civil Procedure Act : Mao v AMP Superannuation Ltd [2015] NSWCA 252 at [56]‑[59].…
H v H [2015] NSWSC 837
Citation 4 (Para 68)

…n addressing the question of whether the applicant was incapable of managing his affairs, the primary judge quoted from his earlier judgment in H v H [2015] NSWSC 837 at [36]:…
Waterways Authority v Fitzgibbon [2005] HCA 57
Citation 5 (Para 86)

…the primary judge fell into error in failing to have regard to the unchallenged evidence of Dr Smith in his report: Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 at [131] per Hayne J.…

Legislation Cited

NSW Trustee and Guardian Act 2009 (NSW) 40, 41, 86
4 mentions (from Para 1)
Civil Procedure Act 2005 (NSW) 14, 140
3 mentions (from Para 47)
Uniform Civil Procedure Rules 2005 (NSW) 7.14
2 mentions (from Para 14)
Guardian Act 2009 (NSW)
1 mention
Powers of Attorney Act 2003 (NSW)
1 mention

Medium Neutral Citation:	IA v TA [2016] NSWCA 179
Hearing dates:	20 June 2016
Decision date:	29 July 2016
Before:	Bathurst CJ; Simpson JA; Payne JA
Decision:	(1) The requirements of r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW) be dispensed with in relation to the commencement and carrying on of these proceedings by way of application for leave to appeal and appeal. (2) Leave to appeal granted on grounds limited to those grounds contained in the amended draft Notice of Appeal filed with the Court on 11 May 2016. (3) Deem the draft Notice of Appeal filed with the Court on 11 May 2016 to be filed as a Notice of Appeal. (4) Appeal allowed: (a) Set aside the orders of the primary judge dated 20 July 2015, 3 August 2015 and 27 November 2015 in the Equity Division proceedings no. 2015/19513 and the Common Law Division proceedings no. 2015/186082; and (b) Remit the matter to the Equity Division to determine the application in accordance with these reasons. (5) Each party pay their own costs of the appeal.
Catchwords:	PROTECTIVE JURISDICTION – where applicant is the subject of a managed estate order and has been appointed a tutor for the purposes of litigation – applicant a protected person under the NSW Trustee and Guardian Act 2009 (NSW) – application for leave to appeal without tutor – whether the primary judge should have made arrangements to hear the oral evidence of the applicant’s treating psychiatrist – whether the applicant was denied procedural fairness
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 14, 140 NSW Trustee and Guardian Act 2009 (NSW) ss 40, 41, 86 Uniform Civil Procedure Rules 2005 (NSW) r 7.14
Cases Cited:	A v A [2015] NSWSC 1778 A v A [2016] NSWCA 17 H v H [2015] NSWSC 837 Mao v AMP Superannuation Ltd [2015] NSWCA 252 Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402
Category:	Principal judgment
Parties:	IA (applicant) TA (first respondent) NSW Trustee and Guardian (second respondent)
Representation:	Counsel: Mr Hooke SC / Mr Masur (applicant) Mr Fitzsimmons / Ms Warren (first respondent) Ms Brouwer (second respondent) Solicitors: Moray & Agnew (first respondent) NSW Trustee and Guardian (second respondent)
File Number(s):	2015/242864
Publication restriction:	Party names suppressed
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Equity Division – Protective List Citation: [2015] NSWSC 1778 Date of Decision: 27 November 2015 Before: Lindsay J File Number(s): 2015/19513 2015/186082