IA v TA (No 3) - [2019] NSWCA 6

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: IA v TA (No 3) [2019] NSWCA 6
Hearing dates: 8 February 2019
Date of orders: 08 February 2019
Decision date: 08 February 2019
Before: Gleeson JA; Payne JA; Simpson AJA
Decision:
(1) Leave granted to file the amended notice of motion dated 23 January 2019.
(2) The amended notice of motion dated 23 January 2019 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), ss 41, 86
Uniform Civil Procedure Rules 2005 (NSW), r 7.14
Cases Cited: A v A [2015] NSWSC
A v A [2016] NSWCA 17
IA v TA (No 2) [2016] NSWCA 349
TA v IA [2016] NSWCA 179
TA v IA [2017] NSWSC 1597
Category: Principal judgment
Parties: Mr IA (self-represented)
Representation:
Counsel:
Solicitors:

File Number(s): 2015/242864
Publication restriction: Party name suppressed

Judgment

THE COURT: Before the Court is an application filed by the applicant, to whom we will refer as “Mr IA”, on 23 January 2019. Mr IA seeks leave to file what he describes as an “Amended Notice of Motion”. The full text of the orders Mr IA proposes to seek are set out in full below at [34]. Before turning to the orders sought it is convenient to recount some of the history of the proceedings.
Mr IA was injured in a motor vehicle accident on 2 July 2007 and suffered neck and head injuries. He commenced proceedings against TA on 26 February 2009 in the District Court. TA admitted liability and the insurer made substantial interim payments of compensation to Mr IA.
The District Court proceedings to assess damages were listed for hearing on 22 November 2010 and 20 May 2013, but were adjourned on both occasions at Mr IA’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 Mr IA’s motion seeking an advance interim payment to be made by the insurer of the first respondent to Mr IA on hardship grounds. The hearing of that motion became the occasion for a debate about whether a tutor should be appointed for Mr IA in the District Court proceedings under r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW).
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 District Court that the NSW Trustee and Guardian would not become involved in Mr IA’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…

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 (No 3)

Details

AGLC: IA v Ta (No 3) [2019] NSWCA 6
Case: [2019] NSWCA 6
Decision Date: 08 February 2019

CaseChat Overview and Summary

In IA v TA (No 3), the appellant, IA, sought further relief by way of a notice of motion following an appeal that had already been determined by the Court of Appeal of New South Wales. The central dispute concerned whether the prior appeal had been finally determined, and consequently, whether the subsequent notice of motion seeking further relief was competent.

The Court of Appeal was required to determine two primary legal issues: first, whether the appeal had been finally determined within the meaning of the relevant rules of court, and second, if it had been, whether the notice of motion filed by IA was therefore incompetent.

The Court reasoned that an appeal is finally determined when the court has made its final orders and judgment. In this instance, the Court found that the previous appeal had indeed been finally determined. Consequently, the notice of motion seeking further relief was deemed incompetent as it was filed after the final determination of the appeal, and the Court lacked the jurisdiction to entertain such a motion in those circumstances.

The Court ordered that leave be granted to file the amended notice of motion dated 23 January 2019, but subsequently dismissed the amended notice of motion as incompetent.

Orders

Orders of the court

(1) Leave granted to file the amended notice of motion dated 23 January 2019.

(2) The amended notice of motion dated 23 January 2019 is dismissed as incompetent.

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

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Medium Neutral Citation:	IA v TA (No 3) [2019] NSWCA 6
Hearing dates:	8 February 2019
Date of orders:	08 February 2019
Decision date:	08 February 2019
Before:	Gleeson JA; Payne JA; Simpson AJA
Decision:	(1) Leave granted to file the amended notice of motion dated 23 January 2019. (2) The amended notice of motion dated 23 January 2019 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), ss 41, 86 Uniform Civil Procedure Rules 2005 (NSW), r 7.14
Cases Cited:	A v A [2015] NSWSC A v A [2016] NSWCA 17 IA v TA (No 2) [2016] NSWCA 349 TA v IA [2016] NSWCA 179 TA v IA [2017] NSWSC 1597
Category:	Principal judgment
Parties:	Mr IA (self-represented)
Representation:	Counsel: Solicitors:
File Number(s):	2015/242864
Publication restriction:	Party name suppressed