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

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).
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.
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].
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).
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…

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) [2017] NSWCA 178
Case: [2017] NSWCA 178
Decision Date: 19 July 2017

CaseChat Overview and Summary

This matter concerned an application for leave to appeal from interlocutory orders made during the case management of remitted proceedings. The applicant, IA, sought leave to appeal against these orders, which were made in the context of proceedings that had been remitted back to the court.

The primary legal issue before McColl and Meagher JJA was whether there was any arguable error or substantial injustice arising from the interlocutory orders, or whether the appeal raised a question of principle that warranted the granting of leave. The court was required to assess the merits of the application for leave to appeal against the backdrop of the ongoing case management of the remitted proceedings.

Their Honours concluded that there was no arguable error or substantial injustice demonstrated by the applicant, nor did the matter raise any question of principle. Consequently, the court found no basis upon which to grant leave to appeal. The applicant’s summons was therefore dismissed with costs.

Orders

Orders of the court

Applicant’s summons is dismissed with costs.

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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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