IA v Ta (No 3)

[2017] NSWCA 178

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	IA v TA (No 3) [2017] NSWCA 178
Hearing dates:	19 July 2017
Decision date:	19 July 2017
Before:	McColl JA; Meagher JA
Decision:	Applicant’s summons is dismissed with costs.
Catchwords:	PROCEDURE – leave to appeal – where application for leave to appeal from interlocutory orders made in course of case management of remitted proceedings – no arguable error or substantial injustice – no question of principle
Legislation Cited:	NSW Trustee and Guardian Act 2009 (NSW) Supreme Court Act 1970 (NSW), s 101(2)(e)
Cases Cited:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 In re the Will of FB Gilbert (1946) 46 SR (NSW) 318
Category:	Principal judgment
Parties:	IA (Applicant) TA (Respondent)
Representation:	Counsel: In person (Applicant) D Hanna (Respondent)   Solicitors: Moray & Agnew (Respondent)
File Number(s):	2017/111363
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Equity Division – Protective List Date of Decision: 12 December 2016; 20 December 2016; 21 February 2017; 16 March 2017 Before: Bergin CJ in Eq; Slattery J; Rein J File Number(s): 2015/19513; 2015/186082

Judgment

1. THE COURT: The Court has before it the applicant’s (IA) summons seeking leave to appeal from four sets of orders made by judges in the Equity Division in the case 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).

2. That appeal was from orders made by Lindsay J on 20 July 2015, 3 August 2015 and 27 November 2015. Those orders were sought by TA in connection with IA’s prosecution, in the District Court, of a proceeding against TA for injuries sustained in a motor vehicle accident on 2 July 2007. The orders made by Lindsay J committed the management of IA’s estate to the NSW Trustee, appointed that Trustee as his tutor in the District Court proceedings, and later confirmed the making of each of those orders. The first proceedings in this Court set aside those orders and remitted to the Equity Division TA’s application for further hearing.

3. The background and procedural history to the proceedings between IA and TA is conveniently recorded in a second judgment of this Court: IA v TA (No 2) [2016] NSWCA 349 (Ward JA, Payne JJA and Sackville AJA) at [5]-[24].

4. The orders identified in IA’s summons as those against which leave to appeal is sought were made on 12 December 2016 (Bergin CJ in Eq), 20 December 2016 (Slattery J), 21 February 2017 (Rein J) and 16 March 2017 (Rein J).

5. By way of summary, on 22 September 2016 TA’s remitted application under the NSW Trustee and Guardian Act 2009 (NSW) was listed for hearing before Rein J on 16 and 17 March 2017. On 12 December 2016 TA sought leave to file a motion returnable before the Vacation Judge, Slattery J. That motion in turn sought an order that IA attend a medical examination in January 2017. Bergin CJ in Eq gave leave for the filing and serving of that motion which was heard by Slattery J on 20 December 2016. His Honour made an order to the effect sought.

6. The proceedings were next listed before Rein J on 21 February 2017. On that day his Honour made directions to prepare the matter for hearing, and confirmed the hearing dates of 16 and 17 March 2017. On 16 March on IA’s application, Rein J vacated that hearing because it was apparent that he was not ready to proceed and proposed to apply for legal representation.

7. The current status of the remitted proceedings is that they are listed for hearing before Rein J on 7 and 8 November 2017.

8. The orders appealed from were made in the course of case management of the remitted application by three different judges in the Equity Division. Leave to appeal is required under Supreme Court Act 1970 (NSW), s 101(2)(e) because those orders were interlocutory.

9. Leave to appeal should be refused.

10. The orders themselves concern matters of practice and procedure. Ordinarily leave to appeal from such orders will only be granted if it appears that there has been, or may be, a clear injustice if a particular matter is not corrected, or there is an important question of principle to be considered. In either case the Court must also be satisfied that there is at least an arguable basis for asserting error in the making of any challenged order. Unless appellate courts exercise restraint in interfering with matters of practice and procedure the disposal of cases could be delayed and costs significantly increased by the reconsideration of such exercises of discretion by an appellate court: see Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 at [177] (Gibbs CJ, Aickin, Wilson and Brennan JJ) citing the well-known statement of Jordan CJ in In re the Will of FB Gilbert (1946) 46 SR (NSW) 318 at 323.

11. It is not apparent from the terms of any of the orders sought to be appealed that the order has an ongoing effect which could possibly result in any substantial injustice to IA. The orders of 12 December 2016 provided for the making of an application. That application was granted on 20 December 2016 by requiring that IA attend a medical examination. It is apparent that he did not do so. On 21 February 2017, Rein J made directions for the preparation of the hearing. His Honour vacated that hearing on IA’s application and listed it for further directions on 20 April 2017.

12. More significantly IA’s draft notice of appeal does not identify any ground which constitutes a sensible basis for contending that there was any error in the making of the relevant orders that requires the intervention of this Court by way of an interlocutory appeal. On the contrary, the draft grounds reveal misconception as to the subject matter of the orders sought to be appealed; raise matters which have nothing to do with the orders made and make complaints of bullying or other misconduct by legal practitioners and judges involved in the making of the orders. They also reveal a misunderstanding on the part of IA as to whether all of his cases have been, or should be, consolidated and heard in this Court.

13. In the oral argument it became clear that IA’s understanding is that following the second decision of this Court (and perhaps the earlier hearing before Payne JA on 31 October 2016) all of his matters, including that in the District Court, were in effect consolidated to be dealt with in the Court of Appeal. In his oral argument IA described this as the consequence of various proceedings having been “converted to one matter number”. For that reason IA maintains there is no basis on which the Equity Division can continue to deal with the Protective List matter and appeals from the orders made by the judges of that Division.

14. In these circumstances the applicant’s summons is dismissed with costs.

15. At the conclusion of his written submissions TA asks this Court to “reconsider the merit” of making an order that IA not be permitted to file any further motions in this Court without leave. That invitation was renewed in oral argument. In December 2016 the Court constituted by Ward JA, Payne JA and Sackville AJA declined to make such an order on the basis that it was not “persuaded that, at present, any such order is either necessary or desirable”.

16. No formal application has been made to this Court accompanied by any evidentiary material that might provide a basis for the making of such an order. And no notice of any application of that kind has been clearly given to IA. That being the position it is not appropriate that this Court entertain TA’s invitation.

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Decision last updated: 19 July 2017