R v P (No 2)

CITATION:	R v P (No 2) [2003] NSWCA 360 revised - 05/12/2003
HEARING DATE(S):	24 November 2003
JUDGMENT DATE:	24 November 2003
JUDGMENT OF:	Handley JA at 1
DECISION:	The application for a stay of the orders of Barrett J is refused. Prayers 2 and 3 of the Notice of Motion of 18 November 2003 is dismissed. The claimant to pay the costs of the hearing today.
CATCHWORDS:	Appeal - Application for stay of final orders - Effect on interlocutory orders - ND
LEGISLATION CITED:	Damages (Infants and Persons of Unsound Mind) Act 1929
CASES CITED:	Browne v Commissioner for Railways (1935) 36 SR (NSW) 21 Commissioner of Police v Tanos (1958) 98 CLR 383 In the matter of an application for a writ of prohibition against Mr Justice Marks, Ex Parte The Australian Building Construction Employees' and Builders Labourers' Federation (1981) 55 ALJR 395 R v P (2001) 53 NSWLR 664
PARTIES :	R v P
FILE NUMBER(S):	CA 41034 of 2003
COUNSEL:	N A Nicholls (Claimant) K Andrews (Opponent)
SOLICITORS:	N/A

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	P 29/01
LOWER COURT JUDICIAL OFFICER :	Barrett J

41034 of 2003

HANDLEY JA

24 November 2003

R v P (No 2)

Judgment

1 HANDLEY JA: Mr Nicholls has moved on behalf of the claimant for interlocutory relief pursuant to a Notice of Motion filed on 18 November 2003. The underlying proceedings are an application by the claimant for leave to appeal from a decision of Barrett J in the Protective Jurisdiction on 9 September. His Honour made a final order under s 13 of the Protected Estates Act declaring that the claimant was incapable of managing her own affairs and ordered that her estate be managed by the Protective Commissioner.

2 The application under the Act was brought to facilitate the settlement of proceedings brought by the claimant in the District Court arising out of a motor vehicle accident in June 1979. The claimant’s legal advisers, including senior and junior counsel, advised that medical reports dealing with the effect of the accident on the claimant’s mental capacity should be served. The claimant gave instructions that they were not to be served. Her solicitor applied for an interim order under the Protected Estates Act to enable the Protective Commissioner to take control of the proceedings. Windeyer J made that order on 6 August 2001 and on 13 December that year this Court dismissed the claimant’s appeal from that decision. The judgment of this Court is reported as R v P (2001) 53 NSWLR 664.

3 An application for special leave to appeal to the High Court of Australia was unsuccessful. The proceedings under the Protected Estates Act were then brought to a final hearing.

4 The claimant has applied for leave to appeal from the judgment of Barrett J because she did not appeal as of right within time. The Notice of Motion seeks, as its principal relief, a stay of the orders made by Barrett J on…