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

1. 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.

2. 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.

3. 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).

4. 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 Guardian to act as tutor for Mr IA in the District Court proceedings.

5. On 4 February 2015, Judge Norton SC published a judgment in which she determined that Mr IA was unable to give instructions in the District Court matter and thus 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 Mr IA’s tutor, Judge Norton SC declined to make any order and noted that TA’s solicitors would seek instructions to approach the Supreme Court to have a financial management order made.

Commencement of proceedings in the Supreme Court

6. On 21 January 2015, TA 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, TA filed an amended Summons in proceedings no. 2015/19513.

7. On 7 July 2015, Mr IA 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, Mr IA also sought orders for the payment to him by TA of further interim payments of compensation.

8. 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 Mr IA’s financial manager. On 3 August 2015, the NSW Trustee and Guardian was appointed as Mr IA’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.

Court of Appeal proceedings

9. On 6 October 2015, Mr IA filed an application for leave to appeal. Mr IA 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, 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 district court, file number 2009/00333800 for hearing all matters concerns General Negligence by both party solicitors.”

10. 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.

11. On 20 April 2016, Mr IA’s 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 Mr IA to the pro bono panel for assistance. Directions were given by the Court for the filing of an amended draft Notice of Appeal. The initial grounds of appeal comprised a long list of complaints in which Mr IA sought damages in the sum of $120 million:

“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 employment 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…”

12. The orders made by Ward JA and Sackville AJA 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 retainers 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.”

13. 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 Mr IA pro bono, were filed in this Court. The amended grounds concerned a denial of procedural fairness to Mr IA by the failure of the primary judge to facilitate the giving of oral evidence by Mr IA’s treating psychiatrist:

“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.

…

[Ground 2 was not pressed]

…

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.”

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 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.

15. In considering the appeal, the Court was not required to address the issues raised in the initial draft grounds of appeal, which were replaced by the procedural fairness issues raised in the amended draft Notice of Appeal. 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.

The 2016 Notice of Motion

16. On 24 October 2016, the applicant filed a notice of motion in the Court of Appeal proceedings (no. 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.”

17. The motion was supported by an affidavit of Mr IA filed 24 October 2016 and an amended affidavit filed 26 October 2016. On 31 October 2016, the amended motion came before Payne JA sitting as a single judge in the referrals list.

18. It is a matter of some importance that on that occasion Mr IA was asserting that Sackville JA and Ward JA in the hearing on 20 April 2016 had somehow made an award of damages in Mr IA’s favour of many millions of dollars. Since that time, however, Mr IA has asserted in various ways that Payne JA made orders during that directions hearing finally determining his underlying case and making an award in his favour described, most recently, as $158,400,000.

19. Despite repeated claims subsequently made by Mr IA that his matter was finally determined by Payne JA on 31 October 2016, no such orders were made nor could they have been made.

20. What actually occurred during that brief directions hearing was that Payne JA 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. Justice Payne made the following orders (and only these orders) 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.”

21. This motion to reopen the proceedings was dismissed as incompetent by this Court on 13 December 2016. The Court made the following orders, “the amended notice of motion filed 31 October 2016 is dismissed as incompetent”: IA v TA (No 2) [2016] NSWCA 349 (Ward & Payne JJA, Sackville AJA).

Proceedings on remitter to the Equity Division

22. On 24 November 2017, Ward CJ in Eq found that Mr IA was incapable of managing his affairs in relation to the relevant District Court proceedings and appointed the NSW Trustee as manager of his estate relating to the proceedings: TA v IA [2017] NSWSC 1597. In that hearing evidence was led from Mr IA’s treating psychiatrist, Dr Smith. Ward CJ in Eq set out that evidence at some length, which was to the effect that Dr Smith did not believe that Mr IA had capacity to manage his affairs. Her Honour made the following orders:

“1. I declare, pursuant to s 41 of the NSW Trustee and Guardian Act 2009 (NSW) (the Act), that the defendant [IA] is incapable of managing his affairs in relation to his claim for compensation and conduct of District Court proceedings case number 767 of 2009 (the proceedings) arising from a motor vehicle accident which occurred on 2 July 2007.

2. I order pursuant to ss 40 and 41(1)(a) of the Act that that part of the defendant’s estate relating to the defendant’s claim for compensation and conduct of the proceedings be subject to management under the Act.

3. I order pursuant to s 41(1)(b) of the Act that the NSW Trustee be appointed as manager of that part of the defendant’s estate relating to his claim for compensation and conduct of the proceedings.”

23. There was no appeal from her Honour’s orders.

Settlement of Mr IA’s claim in the District Court

24. On 15 November 2018, the District Court approved a settlement of the proceedings between Mr IA and Mr TA of $1.38 million.

Management orders in the Equity Division

25. On 21 December 2018, Lindsay J made orders in the Protective List (in proceedings no. 2015/19513) concerning the management of those settlement funds. Those orders were:

“1. NOTE the Report of the NSW Trustee to the Court dated 7 December 2018 (marked Exhibit N1)

2. NOTE that, by declaration and orders made by Ward CJ in Eq, on 24 November 2017, [Mr IA] (the defendant) was declared, pursuant to section 41 of the NSW Trustee and Guardian Act 2009 NSW, to be incapable of managing his affairs in relation to his claim for compensation and conduct of proceedings in the District Court of NSW (“the District Court proceedings”), and orders were made (pursuant to sections 40 and 41 of that Act) for that part of the defendant’s estate relating to his claim for compensation and conduct of the District proceedings to be subject to management under the Act, such management being committed to the NSW Trustee.

3. ORDER that Order 1 of the orders made by the Chief Judge on 24 November 2018 be amended by substituting for the District Court Case number “767 of 2009” the number “2009/0033380” as recorded in the records of the District Court of NSW in respect of the District Court proceedings.

4. NOTE that, by orders made by Judge Robison on 15 November 2018 in the District Court proceedings, a settlement of those proceedings was approved on the basis of the claimant for compensation (the defendant in the current proceedings) being awarded a judgment of $1.38 million inclusive of funds management plus costs as agreed or assessed (including the costs of court approval) subject to adjustments.

5. NOTE that, by his orders, Robison DCJ ordered that the balance of the amount of the judgment awarded to the claimant (the defendant in the current proceedings), after defined deductions, be paid as directed by the court pursuant to section 77(3) of the Civil Procedure Act 2005 NSW.

6. ORDER that the amount of the District Court judgment in favour of the claimant (the defendant in the current proceedings), after deductions authorised by Robison DCJ on 15 November 2018, be paid to the NSW Trustee as receiver and manager of the protected estate of the claimant (the defendant in the current proceedings) subject to such, if any, further orders as may be made by this Court in relation to management of the estate of the claimant (the defendant in these proceedings).

7. ORDER, subject to further order, that any funds held in court, or hereafter received by the court, on the account of the defendant in respect of the District Court proceedings be paid out to the NSW Trustee as receiver and manager of his protected estate.

8. ORDER, subject to further order, that the NSW Trustee, without the leave of a judge, make no deduction for its fees or charges from any funds held or received by it on the account of the defendant.

9. ORDER, subject to further order, that the NSW Trustee be appointed as receiver and manager of so much of the estate of the defendant as comprises the proceeds of the judgment, and the order for costs, made in favour of the defendant (as the claimant for compensation) in the District Court proceedings.

10. ORDER, subject to further order, that the powers and discretions of the NSW Trustee pursuant to its appointment as receiver and manager by order 9 of these orders include:

a) all the powers and discretions that the NSW Trustee would have if management of the defendant’s estate were committed to it pursuant to section 41(1)(b) of the NSW Trustee and Guardian Act 2009.

b) power to receive and manage moneys payable pursuant to the judgment and orders made by the District Court of NSW in determination of the District Court proceedings.

c) power to pay from any such moneys debts owed by the defendant to any third party.”

26. No appeal was lodged in relation to those orders.

27. On 7 February 2019, Lindsay J made orders in the Protective List (in proceedings no. 2015/19513) concerning the distribution of those funds:

“1 NOTE the advice of the solicitor for the defendant (Mr Alwyn Gillis) that, after allowing for statutory charges on compensation moneys payable to the plaintiff, there is an estimated sum of about $750,000 payable by the defendant in favour of the plaintiff.

2 NOTE the orders made by Lindsay J on 21 December 2018, including orders 6-11 inclusive.

3 NOTE that the solicitor for the defendant informs the Court that Gerard Malouf & Partners, Solicitors, have notified him of a claim to a lien over the plaintiff’s compensation moneys in an amount expressed to be $45,175.43.

4 ORDER that order 6 of the orders made on 21 December 2018 be confirmed, subject to these orders.

5 ORDER that any claim by Gerard Malouf & Partners to a lien over compensation moneys due to the plaintiff be made by way of a notice of motion (filed and served, with supporting affidavit evidence, no later than 11 February 2019) returnable before the Protective List Judge (Lindsay J) at 2.00pm on 18 February 2019.

6 ORDER, subject to further order, that in management of the protected estate of the plaintiff during the period up to and including 18 February 2019, the NSW Trustee retain a sum not less than $45,175.43.

7 NOTE that the intendment of order 6 of the orders made on 21 December 2018, as confirmed by these orders, is that by complying with order 6, as supplemented by these orders, the defendant and his solicitors shall have the same protection from any claim to a lien by Gerard Malouf & Partners as if compensation moneys were paid into court.

8 NOTE that, in any event, as a receiver and manager of the protected estate of the plaintiff, the NSW Trustee manages the estate under the supervision of the Court.

9 ORDER that the defendant and the NSW Trustee each serve a copy of these orders on Gerard Malouf & Partners no later than 5.00pm today (6 February 2019).

10 NOTE that order 9 may be complied with by an email addressed to Mr Vrege Kolokossian, at [...]

11 ORDER that the NSW Trustee, as soon as may be practicable, serve a copy of these notations and orders on the plaintiff.

12 RESERVE all questions of costs.

13 ORDER that these orders be entered forthwith.”

The 2018 notice of motion

28. On 26 June 2018, Mr IA filed a notice of motion in the Court of Appeal, purportedly in the proceedings which had been determined to finality in 2016. That motion sought the following orders:

“1 Seeking urgent orders for all monies owed from pockets under duty of care breached for 12 years under MVA act 1999, section 84a, by the insurer as forensic reports

2. Seeking orders for all General damages sustained as forensic evidence from 2007, under the act of MVA 1999, Breached for 12 years, by the insurer NOW causing forensic onus to they appeal modifying appeal judgments, Transcripts of Justice Payne , and strict final orders of 31st of October 2016, while both parties been struck off FOR all cost from 2007 .

A, Holding human rights for 12 years perverting course of justice, not allowing forensic documents to be filed by registrar, to they appeal needs to be only determine before 3 justice on papers, as on record of 20th June 2016, hearing.

B, REGISTRAR JERRY R , TURNING APPEAL INCOMPETENT ON 13th DECEMBER 2016 , WHILE APPELLANT WON HIS APPEAL ON 29th JULY 2016 AND BEFORE JUSTICE PAYNE ON 31st OF OCTOBER 2016 , WITH STRICT FINAL ORDERS .

C,,Even Appellant Won his appeal twice under procedural fairness act 1970s,101 under all points of law and all merits filed and heard on 31st of October 2016, with Strict final orders of Justice Payne, HOLDING MY HUMNA RIGHTS WITH NO TREATMENTS COST TO DOCTORS OR MEDICATIONS .

D, UNDER PROCEDURAL FAIRNESS ACT 1970 S101, APPELLANT WON HIS APPEAL TWICE APPEAL IS APPEAL RULES OF COURT , BOTH PARTIES IN CONTEMPT OF COURT , BREACHED STRICT FINAL ORDERS OF COURT OF APPEAL JUSTICE PAYNE , OF 31st OF OCTOBER 2016 .

E, APPELLANT SEEKING ORDERS FOR ALL DAMAGES SUSTAINED AS FORENSIC EVIDENCE YOUR HONOUR, AS NO ONE WILL REPLACE MY LIFE FOR 12 YEARS, ABUSED AND MENTALLY TORTURE BULLIED ROBED AND MURDER TO MY LIFE WITH VERY BAD TREATMENT ,BY INSURER , LEFT ME PENNY LESS , BANKCRUPT .AND NOW STEALING JUSTICE OF COURT OF APPEAL STRICT FINAL ORDERS . of 29th JULY 2016, MODIFIED APPEAL , 31ST OF OCTOBER 2016 AGAIN AND AGAIN. MISCARRAIGE OF JUSTICE TO THEY APPEAL BY LEGAL PROFESSIONALS,

COURT TO MAKE ORDERS FOR PRO BONO SC DAVID HOOKE ON RECORD OF APPEAL, TO ACT ONLY AS CONDUCT OF APPEAL AND FINALISE MY APPEAL IN HIGH COURT SEEKING RELIEF

IF COURT OF APPEAL CAN NOT ALLOW ME TO FILE MY DOCUMENTS AS I AM BEEN BUILLIED BY REGISTER JERRY R, FROM FILING FROM 16TH JANAURY 2017, AS LETTER DATED OF CHIEF REGISTRAR KENNA , TO FILE MY AMENDED STATEMENTS OF CLIAM ,

ORDERS OF 20TH APRIL 2016, AT FOOT FOR LEGAL ASSISTANCE FOR FINALITY OF MY BOTH APPEALS WHICH BECAME ONE WHOLE APPEAL ON 11TH MAY 2016, BEFORE REGISTRAR JERRY R AS AGREED BY BOTH PARTY BARRISTERS AND PREPARED BY INSURER IN APPEAL BOOKS .

REGISTRARS ORDERS TO SEEK RELIEF IN HIGH COURT TO DO THAT I NEED DAVID HOOKE SC, ON RECORD AS PRO BONO . OR COURT OF APPEAL TO DETERMINE MY APPEAL AT FOOT 2016/242864 , BEFORE 3 JUSTICE ONLY ON RECORD .OF 20TH JUNE 2016 HEARING .”

29. It appears that this motion was filed on the fundamentally mistaken belief that orders had been made on 31 October 2016 in the referrals list which somehow finally determined Mr IA’s underlying claim in the District Court against Mr TA. No such orders were made, and Mr IA’s assertions about what took place on 31 October 2016 are fundamentally misconceived.

30. On 2 July 2018, the Registrar of the Court of Appeal made the following orders in relation to this motion:

“1. Note that the Motion has not been served.

2. Note that the subject of these proceedings is affected by orders made by Ward JA in the Equity Division.

3. Reject the Motion filed by the applicant.

4. Direct the refund of the filing fee to the applicant.

5. Direct that there be no further motions accepted by the Registry without the leave of a Registrar or Judge.”

31. There was no challenge made to the Registrar’s order.

Further “amended” motion filed in 2019

32. A document dated 23 January 2019 was sought to be filed by Mr IA in the Registry of the Court of Appeal described as “Amended notice of motion of 26th June 2016, seeking relief for all damages sustained from 2007 MVA general damages as forensic assessments with precedent”.

33. It is appropriate to treat this document as an application for leave within the meaning of order 5 of 2 July 2018 to file a further motion in the Court of Appeal proceedings. This motion is described as filed in proceedings no. 2015/242864 (the file number of the original Court of Appeal proceedings). The motion was filed together with an affidavit from Mr IA and three lever arch folders of material in support, which we have taken into account.

34. This further motion seeks the following orders:

“1 SEEKING URGENT ORDERS AS FORENSIC STATEMENTS OF CLAIM WITH FORENSIC VARINACE FROM 29TH JULY 2016 , UNDER HUMAN RIGHTS ACT, MVA ACT 1999, BREACHED UNDER DUTY OF CARE , PROCEDURAL FAIRNESS ACT 1970S101 , GENERAL DAMAGES , PROFESSIONAL NEGLIGENCE MEDICAL NEGLIGENCE HUMAN RIGHTS 13 YEARS PERVERTING COURSE OF JUSTICE ,FROM 29TH JULY 2016 , AS CONDUCT OF APPEAL FILED AND AGREED UNDER CODE OF ETHICS , BY BOTH PARTIES BARRISTERS , IN PREVIOUS STATEMENTS OF CLAIM 120 MILLION PLUS 32% INTEREST , IN APPEAL BOOKS .HEARD ON ALL MERITS TWICE UNDER PROCEDURAL FAIRNESS ACT 1970S101 .

2 FOR FINAL CONCURRENT HEARING OF 20TH JUNE 2016 , DEFENDED BY DAVID HOOKE SC, ON 29TH JULY 2016 , DETERMINE , 158,400,000,00, AND DEFENDED BY [Mr IA], AGAIN , ON 31ST OF OCTOBER 2016 , WITH STRICT FINAL ORDERS OF JUSTICE PAYNE , AS AMENDED STATEMENTS CLAIM FORENSICALLY ASSESSED NOW AND COMPETENT FOR 3 JUSTICE TO DETERMINE ON PAPERS ONLY, AS STRICT FINAL ORDERS OF 31ST OF OCTOBER 2016, OF JUSTICE PAYNE.

3 ORDERS OF 3 JUSTICE ON RECORDS OF 20TH JUNE 2016, WAS BREACHED ON 1ST OF AUGUST 2016, BY NSW TRUSTEE AND BOTH CONFLICT OF INTEREST PARTIES, APPEAL WAS DETERMINE ON 29TH JULY 2016, AND AMENDED STATEMENTS OF CLAIM HAS TO BE DETERMINE AGAIN BEFORE 3 JUSTICE ON RECORDS ON PAPERS ONLY, WITH DAMAGES FROM 29TH JULY 2016, DETERMINED ON 29TH JULY 2016.

4 DAMAGES FROM 29TH JULY 2016, UNDER HUMAN RIGHTS ACT, PROCEDURAL FAIRNESS ACT 170 S101, APPLY ACCORDINGLY UNDER UCPR RULES 2005, CODE OF ETHICS, AND OTHER PUNATIVE DAMAGES, TO BE DETERMINED BEFORE 3 JUSTICE ON RECORDS OF FINAL CONCURRENT HEARING, OF 20TH JUNE 2016.

5 SEEKING ORDERS TO BE STRICT AND FINAL ALL DAMAGES TO BE PAID WITHIN 24 HOURS BY THEY INSURER AAMI DIRECT TO COURT OF APPEAL TRUST ACCOUNTS , AS APPELLANT LOST TRUST AND FAITH WITH INSURERS BARRISTERS AND SOLICITORS, NSW TRUSTEE, CDQ, FOR STEALING 3 JUSTICE ORDERS FROM 29th JULY 2016, MODIFYING APPEALS AND DECEVIED MY MONEY FROM 29th JULY 2016 ,BAIL OUT MY PRO BONO AND FORENSIC ACCOUNTANTS , PERVERTING JUSTICE FROM FILING MY AMENDED STATEMETNS OF CLAIM THROUGH REGISTRAR JERRY R, FROM 16th JANAURY 2017 . HOLDING HUMAN RIGHTS.

6 APPEALS BECAME ONE WHOLE FINAL APPEAL ON 11TH MAY 2016 BEFORE REGISTRAR JERRY R , 2015/242864 AS AGREED UNDER CODE OF ETHICS BY INSURER AND MR HOOKE , DEFENDED BY PRO BONO , 158,400,000,00, AS CONDUCT OF APPEAL EHARD ON ALL MERITS ON FACTS AND POINTS OF LAW ,FROM 2007, MVA GENERAL DAMAGES NEGLIGENCE , ON 29TH JULY 2016 , JUDGEMENTS MONIES PAID IN 2016 , TO CDQ TRUST ACCOUNTS.

7 NSW TRUSTEE MADE CONSTANTLY FRAUDLENT ORDERS THROUGH BRIBED RETIRED JUDGES IN EQUITY DIVISION P.A BERGIN , WITHOUT SERVING DOCUMENTS ON MATTERS BEEN DEALT AS APPEALS AS AGREED UNDER PROCEDURAL FAIRNESS ACT 1970S101 , AND DISTRICT COURTS ON MATTERS BEEN STRUCK OFF ON 31ST OF OCTOBER 2016 , AND BOTH PARTIES BEEEN STRUCK OFF WITH NSW TRUSTEE ,ON 31ST OF OCTOBER 2016 , MY DRIVER IN COURT TOOK NOTES OF STRICT FINAL ORDERS READ OUT , BEFORE JUSTICE PAYNE , NSW TRUSTEE AND INSURER HOLDING HUMAN RIGHTS.

8 WITNESS MR HANNA, FOR INSURER ON RECORDS OF THEY FINAL CONCURRENT HEARING OF 31ST OF OCTOBER 2016, BEFORE JUSTICE PAYNE, WITH WARNING TO MR HANNA, NOT TO FILE ANY MORE MATTERS IN ANY PRIMARY COURTS , MR HANNA ,ADVICE ME OUT OF COURT THIS WAS NOT NECESSARY WHEN HE GOT STRUCK OFF FROM MY APPEALS ,WITH NSW TRUSTEE AND CDQ.

9 MR HANNA, PROMSIED TO JUSTICE PAYNE, HE WILL SEND ME STRICT SIGNED SEALED ORDERS BY EMAIL DID NOT TILL TODAY , BREACHED STRICT FINAL ORDERS OF JUSTICE PAYNE OF 31ST OF OCTOBER 2016 , MODIFIED APPEALS , AGAIN THROUGH SAME REGISTRAR JERRY R, WHEN TOLD NOT TOO THIS COURT WILL NOT ALLOW A STAY IN ANY PRIMARY COURTS , STRICT AND FINAL ORDERS BREACHED AGAIN AND AGAIN . BY NSW TRUSTEE WHO HAS BEEN REMOVED ON 29TH JULY 2016, AND STRUCK OFF ON 31ST OF OCTOBER 2016, BEFORE JUSTICE PAYNE, FOR STEALING 3 JUSTICE ORDERS UNDER COMMONWELATH LAW CONSPRIACY FRAUD , THROUGH BRIBED EQUITY JUDGES AND DISTRICT COURTS, BAILOUT MY PRO BONO NOT IN COURT ON 31ST OF OCTOBER 2016, BAILOUT MY FORENSIC ACCOUNTANTS IN 2016, PERVERTING COURSE OF JUSTICE TO MY APPEAL WITH CDQ WHO DID NOT ACT FROM 2012 CASED DAMAEGS WITH INSURER WORKED AS A TEAM. UNDER CONSPIRACY FRAUD CONDUCT.

10 MY MONIES ARE USED FOR BRIBERY BY CDQ WHO HAS MY MONEY IN THEIR TRUST ACCOUNTS, CDQ PAID RENT TO PRD 11,509. IN ADVANCE IN 2018 , FROM THEIR TRUST ACCOUNTS , WITHOUT SIGNED DEED OR CONSENT , FROM [Mr IA] , CDQ IS NOT MY SOLICITORS FROM 2012, FILED CEASING TO ACT ,PLACED TRUSTEE WITHOUT FAIR TRIAL IN 2015 , AND PERVERTED COURSE OF JUSTICE TO MY LIFE FOR A OVER A DECADE FROM JUNE 2011 , UNDER HUMAN RIGHTS ACT , IGNORED MY INSTRUCTIONS IN 2011 , TOOK MATTER ON IN JUNE 2011 , CAUSED DAMAGES AS MONEY CHANGED HANDS WITH INSURER , NOW INSURERS SOLICITOTR MR GILLIS , SAYS TO FOR GET ABOUT THEY PAST TO DEAL WITH CDQ , HE WILL GET ME MY MONIES FROM INSURER.

11 I SEEK ORDERS FOR ALL DAMAGES SUSTAINED FROM 2007, WITH PRECEDENT AS FORENSIC VARIANCE, ASSESSED YOUR HONOUR , URGENT ORDERS AS I AM BEEN ROBED. FOR MY RIGHTS AND MY MONEY VICTIM OF NO WRONG DOINGS LOST MY QUALITY LIEF FOR OVER A DEACDE 13 YEARS PLUS.

12 12 YEARS I CANT CHEW PROPERLY LOST DENTAL FROM MEDICATIONS SUFFERED STROKE AND DIABETICS, INSURER DESTROYED MY GENERAL HEALTH AND LIFE USED AND ABUSED THIS IS MURDER GAVE ME DEATH SENTENCE WITH STROKE FROM PRESSURE FOR OVER 13 YEARS NOW THIS IS MURDER TO ME BY BOTH PARTIES AND INSURER AND NSW TRUSTEE LAWYER STEALING 3 JUSTICE ORDERS AND SAYS I DON’T CARE ABOUT COURT OF APPEAL ORDERS, WHO IS SHE?

13 WHICH IS NONE OF NSW TRUSTEE’S BUSINESS USING NSW TRUSTEE NAME TO GAIN FINANCIAL ADVANTAGES BY NSW TRUSTEE LAWYER ON TAX PAYERS MONEY , WHO WAS HIRED FOR COVER UPS TO STEAL MY HUMAN RIGHTS AND MY MONEY WHILE I SEEK JUSTICE ONLY IN 2015 , YOUR HONOUR UNDER ISNTRUCTIONS OF JUDICIAL AND JUDGE SORBY IN 2013 , DIRECTED MY MATTER TO SUPREME COURT BECAUSE OF NEGLIEGENCE CAUSED DAMAGES FROM 2008 , MVA BY INSURER SOLICITOR WHO TOXIC MY MATTER FROM 2007 WHEN I COMPLAINT HIS PROCESSSIONAL DECEPTION CONDUCT I BECAME HIS VICTIM FOR OVER THIS YEARS TOXIC MY INJURY AND INCOME THROUGH PRIME COURTS JUDGES WITH HAND WRITTEN LETTER PROCEDURAL FAIRNESS WAS NOT GIVEN TO VICTIM OF 13 YEARS , I EARN IT WITH STRICT ORDERS BEFORE JUSTICE PAYNE AGAIN ON 31ST OF OCTOBER 2016 . NSW TRUSTEE PERVERTING COURSE OF JUSTICE YOUR HONOUR , WITH BOTH FRAUDULENT PARTIES LOS THEIR COST ON ALL MERITS ON 31ST OF OCTOBER 2016 , INCLUDING STEALING 3 JUSTICE ORDERS OF 29TH JULY 2016 , MODIFIED APPEALS , DEFENDED BY MR HOOKE SC , ON 29TH JULY 2016.

14 I SEEK ALL DAMAGES AS FORENSIC VARINACE , WITH RPECEDENT I DESERVE THAT TOO AS ADVICE YOUR HONOUR , UNDER PROCEDURAL FAINRESS ACT , HUMAN RIGHTS ACT , MVA ACT 1999, BREACHED BY INSURER , WITH CONSTAT MENTAL TORTURE AND BULLY USED AND ABUSED FOR 13 YEARS, NO ONE WILL REPLACE MY LIFE NO ONE WILL REPLACE MY MUM, I DID NOT SEE FOR OVER A DEACDE FOR OVER 12 YEARS , DIED IN FIJI ON 20TH NOVEMBER 2017 , NEVER SAW HER FACE OR GRAVE AS YET , FROM THIS FRAUD CONDUCT OF INSURER AND NSW TRUSTE HOLDIGN HUMAN RIGHTS WHEN I WON MY APPEAL ON 29TH JULY 2016 AND WON AGAIN ON 31ST OF OCTOBER 2016 , CONSTANT CONTEMPT OF COURT OF APPEAL BY INSURER AND NSW TRUSTEE , I AM SEEKING ORDERS FOR ALL MY DAMAGES URGENT ORDERS UNDER HUMAN RIGHTS SPECIAL NEEDS , TO BE PAID TO TRUST ACCOUNTS OF NSW COURT OF APPEAL BY INSURER WITHIN 24 HOURS , YOUR HONOUR ,”

35. This Court said in IA v TA (No 2) about a materially indistinguishable motion filed by Mr IA in the same proceedings:

“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.

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.

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.

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

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

the issues contained in the motion dismissed by Gleeson JA.

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.

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.

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.

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.

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.

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.”  

36. Due to continued e-mail correspondence from Mr IA to the Registrar of the Court, the Court was convened urgently to hear Mr IA’s application. Given the fundamental and continuing misconception on Mr IA’s part about the jurisdiction of this Court and what he asserts occurred in a directions hearing on 31 October 2016, it is apparent that Mr IA may be prejudicing his interests by ignoring the proceedings being conducted in the Equity Division.

36. The application by Mr IA to file the amended notice of motion was fixed for hearing on 8 February 2019 before the Court as presently constituted.

37. The Court of Appeal dealt with Mr IA’s original 2016 challenge to the orders made by Lindsay J to finality. The only matters ultimately before this Court related specifically and exclusively to the financial management orders that were made in the Equity Division of the Supreme Court by Lindsay J in 2015. The orders made by Lindsay J in 2015 were set aside and the matter remitted to the Equity Division. 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. Ward CJ in Eq dealt with the case on remitter from this Court. Her Honour made orders over 12 months ago, which orders were not appealed to this Court.

38. After the resolution of Mr IA’s appeal in 2016, the Court of Appeal was not vested with some continuing supervisory jurisdiction of all proceedings involving Mr IA. There being no proceeding on foot in this Court, no relief can be sought by notice of motion. No other jurisdiction to deal with the motion was advanced by Mr IA in the voluminous material he filed. The amended notice of motion dated 23 January 2019 is incompetent.

39. Mr IA’s baseless claims that Lindsay J in the Equity Division is somehow acting contrary to an order of the Court of Appeal must cease. No order has ever been made in the Court of Appeal awarding him any sum of money and there are no proceedings at present on foot in the Court of Appeal.

40. The appropriate course is to make the following orders:

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.

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Decision last updated: 08 February 2019