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Nitopi bht Nitopi v Nitopi

Nitopi bht Nitopi v Nitopi

Case [2022] NSWSC 1677 7 December 2022

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Civil Penalty

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Nitopi bht Nitopi v Nitopi [2022] NSWSC 1677
Hearing dates: 1-2 December 2022
Date of orders: 7 December 2022
Decision date: 07 December 2022
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
I order that the motion seeking to have the Registrar’s orders dismissing the proceedings for want of due despatch set aside be dismissed and that Ms Nitopi bear Mr Nitopi’s costs of the motion, as agreed or assessed.

Catchwords:
CIVIL PROCEDURE — notices of motion — application to have Registrar’s orders dismissing proceedings for want of due despatch set aside — later application for adjournment of the hearing of that motion — adjournment refused — whether Registrar’s orders should be set aside — what dictates of justice require — Civil Procedure Act 2005 (NSW), ss 56-60 — motions dismissed
CIVIL PROCEDURE — Parties — Persons under legal incapacity — where question of party’s capacity arises — where repeated non-compliance with orders requiring production of information about capacity results in dismissal of proceedings for want of due despatch — where default not rectified, even after application to set aside Registrar’s orders made
CIVIL PROCEDURE — Representation — where solicitor has entered appearance for person who has consented to act as tutor as well as for party — where evidence does not establish that party lacks capacity

Legislation Cited:
Civil Procedure Act2005 (NSW), ss 3, 55, 56, 57, 58, 59, 60
Uniform Civil Procedure Rules 2005 (NSW), rr 7.13, 7.14, 7.24, 7.26, 12.7, 12.7, 42.1

Cases Cited:
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Apex Pallett Hire Pty Ltd v Brambles Holdings Ltd (Supreme Court (Victoria), 8 April 1988, unrep)
Azar v Kathirgamalingan [2012] NSWCA 429
Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738
Estate of Nitopi (No 2) [2021] NSWSC 748
Farr v Queensland [2009] NSWSC 906
Frugtniet v State Bank of New South Wales [1999] NSWCA 458
Green v Healthscope Ltd t/as The Hills Private Hospital [2015] NSWCA 325
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432; [2006] FCAFC 114
Mao v AMP Superannuation Ltd [2015] NSWCA 252
Masterman-Lister v Brutton & Co [2003] 3 All ER 162
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315; [2002] NSWCA 273
Nitopi v Nitopi [2019] NSWCA 81
Nitopi v Nitopi [2021] NSWSC 669
Nitopi v Nitopi [2022] NSWCA 162
Nitopi v Nitopi (Supreme Court (NSW), Hulme J, 5 April 2018, unrep)
Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841
Stollznow v Calvert [1980] 2 NSWLR 749
Walton v Hartmann [2017] NSWSC 1432
Watson v Watson (1968) 70 SR (NSW) 203
Weston v Publishing and Broadcasting Ltd [2011] NSWSC 433
Witten v Lombard Australia Ltd [1968] 2 NSWLR 529

Category: Procedural rulings
Parties: Cristina Pirrello Nitopi…

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 Nitopi bht Nitopi v Nitopi

Details

AGLC: Nitopi bht Nitopi v Nitopi [2022] NSWSC 1677
Case: [2022] NSWSC 1677
Decision Date: 07 December 2022

CaseChat Overview and Summary

Nitopi bht Nitopi was a plaintiff in proceedings seeking damages from her former husband, Nitopi, in the Federal Circuit Court of Australia. The court was asked to determine the validity of the Registrar's orders dismissing the proceedings for want of due despatch, and whether those orders should be set aside. The proceedings had been dismissed after the plaintiff repeatedly failed to comply with orders to provide information about her capacity to litigate. After the dismissal, the plaintiff applied to have the Registrar's orders set aside, and subsequently applied for an adjournment of the hearing of that motion. The court was required to decide whether the Registrar's orders should be set aside, and what dictates of justice required.

The court held that the Registrar's orders should not be set aside, and dismissed the motions. The court found that the plaintiff's capacity to litigate had not been established, and that the evidence did not demonstrate that she lacked capacity. The court held that the dictates of justice did not require setting aside the Registrar's orders, and that the plaintiff had not demonstrated any ground for relief under the Civil Procedure Act 2005 (NSW). The court also found that the plaintiff's solicitor had entered an appearance for the plaintiff, and that the evidence did not establish that the plaintiff lacked capacity.

The court dismissed the plaintiff's motions to set aside the Registrar's orders and for an adjournment of the hearing of that motion. The court held that the plaintiff had not demonstrated any ground for relief under the Civil Procedure Act 2005 (NSW), and that the dictates of justice did not require setting aside the Registrar's orders. The court found that the evidence did not establish that the plaintiff lacked capacity, and that the plaintiff's solicitor had entered an appearance for her. The court held that the plaintiff had not demonstrated any grounds for setting aside the Registrar's orders, and that the motions should be dismissed.

Orders