IA v TA (No 2)

[2016] NSWCA 349

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	IA v TA (No 2) [2016] NSWCA 349
Hearing dates:	On the papers
Date of orders:	13 December 2016
Decision date:	13 December 2016
Before:	Ward JA; Payne JA; Sackville AJA.
Decision:	The amended notice of motion filed 31 October 2016 is dismissed as incompetent.
Catchwords:	PRACTICE AND PROCEDURE – appeal determined – notice of motion seeking further relief – whether appeal finally determined – whether notice of motion incompetent
Legislation Cited:	NSW Trustee and Guardian Act 2009 (NSW) s 41 Uniform Civil Procedure Rules 2005 (NSW) rr 7.14, 36.16
Cases Cited:	A v A [2015] NSWSC 1778 A v A [2016] NSWCA 17 Carelli v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 IA v TA [2016] NSWCA 179 Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd & Ors (No 2)  Tanious v South Eastern Sydney Local Health District [2016] NSWCA 83
Category:	Principal judgment
Parties:	IA (applicant) TA (respondent)
Representation:	Counsel: IA (self represented) Mr Hanna (respondent)   Solicitors: IA (self represented) Moray & Agnew (respondent)
File Number(s):	2015/242864
Publication restriction:	Party names suppressed

Judgment

1. THE COURT: This matter has a long and unhappy history. Most recently in this Court Mr IA succeeded 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.

2. Notwithstanding that success, on 24 October 2016 the applicant filed a notice of motion in this Court seeking extensive additional relief. On 31 October 2016, the applicant filed an amended notice of motion seeking even more extensive additional relief.

3. Given the history of this matter the Court made orders for the exchange of written submissions directed to the question of whether, as the respondent to the motion submitted, the motion was incompetent. The Court convened a panel of three judges to address the amended motion on the papers.

4. For the reasons which follow the amended notice of motion is dismissed as incompetent.

Background and procedural history

5. The applicant was injured in a motor vehicle accident on 2 July 2007 and suffered neck and head injuries. He commenced proceedings against TA (the respondent to these proceedings) on 26 February 2009 in the District Court.

6. The respondent has admitted liability for the accident and his insurer has made substantial interim payments of compensation to the applicant. The District Court proceedings to assess damages, however, have not progressed very far. The District Court proceedings were listed for hearing on 22 November 2010 and 20 May 2013, but were adjourned on both occasions at the applicant’s request. As a result, the matter became subject to case management in the District Court. On 1 and 18 December 2014, a hearing took place before her Honour Judge Norton SC in the District Court on the applicant’s motion seeking an advance interim payment to be made by the insurer of the first respondent to the applicant on hardship grounds.

7. The hearing of that motion became the occasion for a debate about whether a tutor should be appointed for the applicant in the District Court proceedings under r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW).

8. On 1 December 2014, the tutor issue having been raised, the matter was stood over part heard to 18 December to give the applicant time to obtain his own medico-legal report.

9. On 18 December 2014, pursuant to a request from Judge Norton SC, Ms Phang, a representative of the NSW Trustee and Guardian appeared. Her Honour recorded in her judgment that Ms Phang informed the Court that the NSW Trustee and Guardian would not become involved in the applicant’s case unless the Supreme Court first made a financial management order pursuant to s 41 of the NSW Trustee and Guardian Act 2009 (NSW), after which time it could direct the NSW Trustee and Guardian to act as tutor for the applicant in the District Court proceedings.

10. Judge Norton SC published a judgment on 4 February 2015. Her Honour determined that the applicant was unable to give instructions in the District Court matter and therefore it would not be appropriate to deal with the question of making an interim hardship payment until a tutor had been appointed. As, on the evidence before her, no person was willing at the time to become the applicant’s tutor, Judge Norton SC declined to make any order and noted that the first respondent’s solicitors would seek instructions to approach the Supreme Court to have a financial management order made.

11. Since 4 February 2015, the matter has been twice adjourned in the District Court. On 3 and 19 June 2015, the matter came before Judge McLoughlin SC, who stated that he did not believe the District Court had power to appoint a tutor in the absence of a willing tutor and that the issue should be determined by the Supreme Court.

12. The District Court proceedings most recently came before Judge McLoughlin on 26 August 2016, where his Honour listed the matter for mention on 9 December 2016.

Commencement of proceedings in the Supreme Court

13. On 21 January 2015, the first respondent commenced proceedings in the Protective List of the Equity Division by filing a Summons seeking the making of a protected estate management order under s 41 of the NSW Trustee and Guardian Act. On 24 June 2015, the first respondent filed an amended Summons in proceedings no. 2015/19513.

14. On 7 July 2015, the applicant filed a Summons in the Common Law Division of the Supreme Court (proceedings no. 2015/186082), seeking an order transferring the motor accident proceedings from the District Court to the Supreme Court. By an amended notice of motion also filed on 7 July 2015, the applicant also sought orders for the payment to him by the first respondent of further interim payments of compensation.

15. On 20 July 2015, Lindsay J made orders under s 41 of the NSW Trustee and Guardian Act appointing the NSW Trustee and Guardian as the applicant’s financial manager. On 3 August 2015 the NSW Trustee and Guardian was appointed as the applicant’s tutor to conduct legal proceedings in the District Court on his behalf. On 27 November 2015 Lindsay J 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.

Proceedings in the Court of Appeal

16. On 6 October 2015, the applicant filed an application for leave to appeal.

17. In addition, the applicant also filed a notice of motion seeking a long list of orders including, relevantly:

5    Seeking orders for EMERGENCY hardship payment within 48 hours bank transfer to victims monies owed with interest FROM 2007.. 297 weeks rent, @ 500 per week plus daily interest of 32% as letter from previous solicitor malous davies under care of duty act, plus rent owing from july 10th 2015 till up to date. .

16    Seeking orders for 10 days hearing, to be listed in supreme court of appeal for all negligence caused in this matter from 2007, professional negligence, mendicals negligence, by all PARTIES who acted in this matter.

19    Seeking orders for advance payment of 5 million dollars According to victims losses of income which is at 15 million plus WWITH CONTRACT OF EMPLOYEMNT [sic], at $3,850 per week gross plus 10% plus increase every yearly to the age 80 from time off avvident 2-07 july 2007 plus 11 % supper every yearly to age 80 until court sets hearing date for all matters…

23    seeking orders TO Transfer of victims original files to Supreme COURT OF APPEAL From discrtict court, file number 2009/00333800 for hearing all matters concerns General Negligence by both party solicitors.

18. Gleeson JA dismissed the notice of motion on 16 February 2016: A v A [2016] NSWCA 17. No application to review that decision was made by Mr IA.

The application for leave to appeal

19. On 20 April 2016, the application for leave to appeal came before this Court constituted by Ward JA and Sackville AJA. The Court ordered the appeal be listed on 20 June 2016 for a concurrent hearing with the application for leave to appeal. Ancillary orders were made referring the applicant to the pro bono panel for assistance. Directions were given by the Court for the filing of an amended draft Notice of Appeal.

20. The initial grounds of appeal comprised a long list of complaints about which the applicant sought damages, including relevantly:

2.    I was not given a fair trial for hearing my matter with evidence from doctor not to give evidence when a doctor has took bribe and wrote letter to the insurers solicitor I do not have enough capacity to run my matter when I am being told by judge sorby

3.    Last year in district court I can run my matter if I do not have a solicitor acting as every solicitor I tried to get help there the insurers solicitors and the ones I hired deceived my matter tell my new solicitors do not do it they will get in trouble I do not have a solicitor I am a victim for 8 years paying for someone else mistakes and lost my quality life and job that I loved with contract of employement I am being told.

6.   I seek justice from court not tutor as the doctor has to give evidence

7.    for proper hearing and this is miscarriage of justice for doctor not to give evidence as she will be proof wrong this is cover ups from insurers and the judges from supreme court I was told by trustee lady earlier this year Catherine phang who I was referred to see she does not think I need tutor in my matter decision was made in district court by judge mc luaghlan the insurer file it in supreme court again,

10.    … I seek justice for all actions as I sue for total lum sum of 120 million dollars for life destroyed …

21. On 11 May 2016, an amended Summons seeking leave to appeal and an amended draft Notice of Appeal, each drafted by Senior Counsel appearing for the applicant pro bono, were filed in this Court. Those grounds were as follows (Ground 2 was not pressed):

1. The primary judge erred in denying the appellant procedural fairness on 20 July 2015, in that his Honour:

a. made orders without allowing the appellant the opportunity to challenge the evidence led against him; and

b. summarily determined the proceedings without allowing the appellant the opportunity to be properly heard.

….

3. The primary judge erred in failing to facilitate the giving of oral evidence by the appellant’s treating psychiatrist, Dr Smith, if his Honour was minded to give no weight to the opinion of Dr Smith in the absence of his oral evidence.

4. The primary judge erred in failing to have any or any proper regard for the unchallenged evidence of Dr Smith.

5. The primary judge erred in finding that the appellant is incapable of managing his affairs within the meaning of the NSW Trustee and Guardian Act 2009, s 41.

22. On 29 July 2016, in IA v TA [2016] NSWCA 179 this Court (Bathurst CJ, Simpson and Payne JJA) allowed the appeal on the basis that the primary judge was required to permit the applicant to call evidence from his treating psychiatrist. The failure to do so was an error. The Court made orders setting aside the orders of 20 July 2015, 3 August 2015 and 27 November 2015 and remitted the matter to the Equity Division to determine the application in accordance with the Court’s reasons.

23. In considering the appeal the Court plainly was not required to address, and did not address, the issues raised in the initial draft grounds of appeal referred to at [20], which had been replaced by the issues raised in the amended draft Notice of Appeal referred to at [21]. The Court also noted that it did not address various extraneous documents sent by the applicant directly to the Court prior to the hearing of the appeal. Those documents were not filed with the Registry and no application was made in the appeal to rely upon those documents: see [53] of [2016] NSWCA 179.

Supreme Court proceedings on remittal

24. Following this Court’s 29 July 2016 decision, the Protective List proceedings (2015/19513) were listed before the Registrar in Equity throughout August and September. The matter is currently listed for hearing before Rein J in March 2017. An application to expedite this hearing date was unsuccessful.

Notice of motion

25. On 24 October 2016, the applicant filed a notice of motion in the Court of Appeal proceedings (2015/242864). On 31 October 2016, the applicant filed in court an amended notice of motion. By that amended notice of motion the applicant sought the following orders:

1    Seeking orders under supreme court rules appeal granted on 13th and 20th April for finality on 20th June to be re listed as appeal number 2009/00333800 was excluded by pro bono on 11th may miscarriage of justice and was not listed on 20th June as both appeals were granted being prevented Justice on 20th June 2016.

2.    Seeking orders to transfer file number 2009/00333800 from district to court of appeal as appeal granted on 13th and 20th April for justice as conduct of matter filed an appeal granted by justice Ward and justice Sackville.

3.    Seeking orders for monies owed from 2007 plus interest as letter previously from solicitors and recently from RUDRA LEGAL solicitors ignored by insurer which was meant to be dealt with on 11th May was ignored by bro bono S.C David Hooke as orders of 20th April to deal with outstanding issues was ignored by parties.

4.    Seeking urgent hearing for 20 days in court of appeal as orders for finality was abused by parties on 11th May and 20th June 2016.

5.    Seeking orders for forensic evidence for assessments for losses and damages which was told more than what I filed my matter for was stop by pro bono S.C. And matter was moved away to other court to prevent victim justice as conduct of matter filed an appeal granted for finality was prevented from listing and excluded from my appeal documents miscarriage of justice, for appeal granted by court of appeal and not being heard was excluded under instructions of insurer to my pro bono. who has damaged my appeals from finality and brought matter back to primary court asking me for cost to sign and left me in loop holes when court provided me free legal services amicus curiae or pro bono to act.

26. The motion was supported by an affidavit of Mr IA filed 24 October 2016 and an amended affidavit filed 26 October 2016.

31 October 2016 hearing

27. On 31 October 2016, the amended motion came before Payne JA. The Court indicated a preliminary view that the amended motion may be incompetent and invited written submissions from the parties on that topic, with a view to a three judge Court determining the amended motion. The following orders were made on that day:

1.    Applicant to file and serve further submissions in support of relief sought in Amended notice of motion filed on 31 October 2016 by 4pm on 15 November 2016.

2.    Respondent to file and serve written submissions in response by 4pm on 22nd November 2016.

3.    Applicant to file and serve any submissions strictly in reply by 4pm on 25 November 2016.

4.    Matter to be determined on the papers by the Court comprising Ward JA, Payne JA and Sackville AJA.

28. On 7 November 2016, the applicant filed written submissions. On 22 November 2016, the respondent filed written submissions. On 25 November 2016, the applicant filed his written submissions in reply.

Mr IA’s submissions

29. The written submissions filed by Mr IA reiterate a number of complaints he has already made. At the heart of those complaints is the assertion that on 20 April 2016 Ward JA and Sackville AJA made an order requiring the Court of Appeal to sit as a trial court (for up to 20 days) and determine Mr IA’s District Court damages proceedings to finality.

30. Mr IA submitted that the failure of the Court of Appeal to determine his District Court damages proceedings to finality, as, he asserted, Ward JA and Sackville AJA had ordered, constituted an injustice.

31. In his submissions, Mr IA repeatedly made submissions to the following effect:

…as orders of 20th April to deal with issues, as orders made by the Court of Appeal for my appeals to be listed for urgent hearing for finality of both matters on 20th June, and were told by both Justice[s], we are not putting the matters off…if the documents were allowed to file by registrar the outcome of my appeals would have been different on 20th June and my matter would have been finished.

32. Mr IA’s submissions elaborate on his demands for an interim and final payment of damages in his underlying proceedings.

33. The submissions also contain complaints about the conduct of various judicial officers, his former legal representatives and the respondent and his insurer and legal representatives. Those complaints are not the subject of the amended motion.

34. On 12 December 2016, after the parties had been notified that this judgment would be handed down on 13 December 2016, Mr IA sent to the Court by e-mail further submissions essentially reiterating the complaints he had earlier made. Although filed without leave, the Court has taken those submissions into account in reaching its decision.

The respondent’s submissions

35. The respondent submitted that the applicant’s motion is incompetent. The Court of Appeal dealt with Mr IA’s appeal to finality and addressed all of the grounds contained in the amended Summons seeking leave to appeal and amended draft Notice of Appeal.

36. The respondent emphasised that there are no proceedings currently before the Court of Appeal and none of the issues raised in the applicant’s motion arise by way of appeal from a decision made in a court below.

Consideration

37. Before considering the detail of the submissions it is necessary to set out the orders made by Ward JA and Sackville AJA on 20 April 2016. Mr IA’s misconception about the scope and meaning of those orders lies at the heart of the present amended motion. Those orders were:

1. Direct pursuant to r 6.23 of the Uniform Civil Procedure Rules 2005 (NSW) that NSW Trustee & Guardian be joined to the proceedings as the second respondent and order the applicant to file and serve an amended summons seeking leave to appeal naming the NSW Trustee and Guardian as the second respondent.

2. Direct as follows:

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

(2) Stand the matter over for a concurrent hearing of the application for leave to appeal and of the appeal on 20 June 2016.

(3) Direct the applicant to file an amended summons for leave to appeal and an amended draft notice of appeal within 21 days (that is, on or before 9 May 2016).

(4) The Court refers the applicant to the Registrar of the Court of Appeal for referral to a barrister and/or solicitor on the pro bono panel, pursuant to UCPR r 7.36.

(5) Direct the first respondent to undertake the preparation of an Application Book on or before 9 May 2016 containing all necessary documents for the conduct of the application for leave to appeal and of the appeal, to stand as the Appeal Books subject to any directions of the Registrar.

(6) The matter be listed before the Registrar on 11 May 2016 to ascertain the position concerning the referral for pro bono assistance and any other issues that may arise in relation to the concurrent hearing listed for 20 June 2016.

(7) The Court notes that if no pro bono assistance is available or the retainer of a barrister and/or solicitor is terminated by the applicant or is otherwise terminated, the Court will consider the appointment of an amicus curiae to assist the Court at the concurrent hearing.

(8) The Court notes that its intention is that the matter proceed to finality on 20 June 2016.

(9) The Court notes that the residential address of the applicant being [REDACTED] is to be treated as the applicant’s address for service of court documents.

38. As can be seen, these orders do not have the effect of listing for hearing any trial on the merits of Mr IA’s District Court claim (for “20 days in court of appeal” or at all). Neither do they say anything about a transfer of the underlying proceedings in the District Court to the Court of Appeal. This misconception lies at the heart of orders 1, 2 and 4 sought by Mr IA’s amended motion.

39. The orders made by Ward JA and Sackville AJA on 20 April 2016 do not address any claim by Mr IA for “monies owed” to him by an insurer or any other person. This misconception lies at the heart of order 3 sought by Mr IA’s amended motion.

40. The orders made by Ward JA and Sackville AJA do not address any claim by Mr IA for “forensic evidence for assessments for losses and damages”. This misconception lies at the heart of order 5 sought by Mr IA’s amended motion.

41. The Court of Appeal proceedings Mr IA brought were finalised in July 2016. Those proceedings, as amended following the engagement of Senior Counsel to appear for him pro bono, related specifically and exclusively to the financial management order that was made in the Equity Division of the Supreme Court. The orders made by Ward JA and Sackville AJA on 20 April 2016 do not support in any way the five grounds in Mr IA’s amended motion.

42. To the extent that Mr IA complains about the conduct of various judicial officers, his former legal representatives and the respondent and his insurer and legal representatives, those complaints are not the subject of the amended motion. In any event, there are no proceedings on foot in this Court which engage any of those issues.

43. The present application by Mr IA is not one under the Uniform Civil Procedure Rules r 36.16 to set aside or vary a judgment or order of the Court. Mr IA succeeded in whole in the case he conducted in this Court. The Court addressed, and only addressed, the grounds of appeal advanced by Senior Counsel appearing for Mr IA on the appeal.

44. What Mr IA’s motion seeks to do is revive:

1. the issues in Mr IA’s original notice of appeal which was amended. Those issues were deleted from the amended Summons seeking leave to appeal and amended draft Notice of Appeal; and

2. the issues contained in the motion dismissed by Gleeson JA.

45. Those issues were re-iterated in various extraneous documents sent by the applicant directly to the Court of Appeal prior to the hearing of the appeal. Those documents were not filed with the Registry and no application was made in the appeal to rely upon those documents: see [53] of [2016] NSWCA 179.

46. As to the decision of Gleeson JA, his Honour specifically found that the interim compensation sought by Mr IA and the application to transfer the underlying proceedings to this Court was “not a matter in the appeal, should leave to appeal be granted.” We agree. Even prior to the amended Summons seeking leave to appeal and amended draft Notice of Appeal addressed at [21] above, the issues addressed by Gleeson JA were not capable of being the subject of an appeal to this Court. This is because no orders had been made in the District Court, the Equity Division or the Common Law Division about those matters which were capable of being reviewed by this Court.

47. In Tanious v South Eastern Sydney Local Health District [2016] NSWCA 83 Basten JA said “the Court of Appeal hears appeals from identified judgments and orders”. Mr IA’s appeal from Lindsay J’s orders has been dealt with to finality in this Court, and was resolved in his favour. The only orders about which he complained in that appeal were set aside.

48. After the resolution of an appeal, the Court is not vested with some continuing supervisory jurisdiction of all proceedings involving the applicant. There was no occasion for the applicant to file his notice of motion or amended notice of motion in the Court of Appeal. There being no proceeding on foot in this Court, no relief can be sought by notice of motion.

49. If, contrary to Mr IA’s submission, the motion were treated as having been filed seeking a variation of the orders made in the July 2016 judgment under r 36.16 it would be incompetent as it was filed long after the mandatory time limit permitted for such motions: see Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd & Ors (No 2); Carelli v FS Architects Pty Ltd (No 2)[2008] NSWCA 205 at [6] – [9] per Campbell JA.

50. No other jurisdiction to deal with the motion was advanced by Mr IA. The motion is incompetent. It follows that the motion must be dismissed.

51. No order for costs was sought by the respondent. The respondent did seek an order that Mr IA not be permitted to file any further motions in this Court without leave. We are not persuaded that, at present, any such order is either necessary or desirable.

Orders

52. The amended notice of motion filed 31 October 2016 is dismissed as incompetent.

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Decision last updated: 13 December 2016