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 7.14Cases 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 1597Category: Principal judgment Parties: Mr IA (self-represented) Representation: Counsel:
Solicitors:
File Number(s): 2015/242864 Publication restriction: Party name suppressed
Judgment
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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.
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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.
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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).
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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…
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- AGLC
- IA v Ta (No 3) [2019] NSWCA 6
- Case
- [2019] NSWCA 6
- Decision Date
CaseChat Overview and Summary
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
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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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