IA v TA (No 2)

1. [1]

   THE COURT: This matter has a long and unhappy history. Most recently in this Court Mr IA succeeded in an appeal from orders which had been made by Lindsay J in separate proceedings in the Equity Division and the Common Law Division: IA v TA [2016] NSWCA 179. That judgment was delivered on 29 July 2016. The matter was remitted to the Equity Division.

2. [2]

   Notwithstanding that success, on 24 October 2016 the applicant filed a notice of motion in this Court seeking extensive additional relief. On 31 October 2016, the applicant filed an amended notice of motion seeking even more extensive additional relief.

3. [3]

   Given the history of this matter the Court made orders for the exchange of written submissions directed to the question of whether, as the respondent to the motion submitted, the motion was incompetent. The Court convened a panel of three judges to address the amended motion on the papers.

4. [4]

   For the reasons which follow the amended notice of motion is dismissed as incompetent.

Background and procedural history

1. [5]

   The applicant was injured in a motor vehicle accident on 2 July 2007 and suffered neck and head injuries. He commenced proceedings against TA (the respondent to these proceedings) on 26 February 2009 in the District Court.

2. [6]

   The respondent has admitted liability for the accident and his insurer has made substantial interim payments of compensation to the applicant. The District Court proceedings to assess damages, however, have not progressed very far. The District Court proceedings were listed for hearing on 22 November 2010 and 20 May 2013, but were adjourned on both occasions at the applicant’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 the applicant’s motion seeking an advance interim payment to be made by the insurer of the first respondent to the applicant on hardship grounds.

3. [7]

   The hearing of that motion became the occasion for a debate about whether a tutor should be appointed for the applicant in the District Court proceedings under r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW).

4. [8]

   On 1 December 2014, the tutor issue having been raised, the matter was stood over part heard to 18 December to give the applicant time to obtain his own medico-legal report.

5. [9]

   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 Court that the NSW Trustee and Guardian would not become involved in the applicant’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 the applicant in the District Court proceedings.

6. [10]

   Judge Norton SC published a judgment on 4 February 2015. Her Honour determined that the applicant was unable to give instructions in the District Court matter and therefore 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 the applicant’s tutor, Judge Norton SC declined to make any order and noted that the first respondent’s solicitors would seek instructions to approach the Supreme Court to have a financial management order made.

7. [11]

   Since 4 February 2015, the matter has been twice adjourned in the District Court. On 3 and 19 June 2015, the matter came before Judge McLoughlin SC, who stated that he did not believe the District Court had power to appoint a tutor in the absence of a willing tutor and that the issue should be determined by the Supreme Court.

8. [12]

   The District Court proceedings most recently came before Judge McLoughlin on 26 August 2016, where his Honour listed the matter for mention on 9 December 2016.

9. [13]

   On 21 January 2015, the first respondent 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, the first respondent filed an amended Summons in proceedings no. 2015/19513.

10. [14]

    On 7 July 2015, the applicant 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, the applicant also sought orders for the payment to him by the first respondent of further interim payments of compensation.

11. [15]

    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 the applicant’s financial manager. On 3 August 2015 the NSW Trustee and Guardian was appointed as the applicant’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 1778.

12. [16]

    On 6 October 2015, the applicant filed an application for leave to appeal.

13. [17]

    In addition, the applicant also filed a notice of motion seeking a long list of orders including, relevantly:

14. [18]

    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.

15. [19]

    On 20 April 2016, the 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 the applicant to the pro bono panel for assistance. Directions were given by the Court for the filing of an amended draft Notice of Appeal.

16. [20]

    The initial grounds of appeal comprised a long list of complaints about which the applicant sought damages, including relevantly:

17. [21]

    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 the applicant pro bono, were filed in this Court. Those grounds were as follows (Ground 2 was not pressed):

18. [22]

    On 29 July 2016, in IA v TA [2016] NSWCA 179 this Court (Bathurst CJ, Simpson and Payne JJA) allowed the appeal on the basis that the primary judge was required to permit the applicant to call evidence from his treating psychiatrist. 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.

19. [23]

    In considering the appeal the Court plainly was not required to address, and did not address, the issues raised in the initial draft grounds of appeal referred to at [20], which had been replaced by the issues raised in the amended draft Notice of Appeal referred to at [21]. 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: see [53] of [2016] NSWCA 179.

20. [24]

    Following this Court’s 29 July 2016 decision, the Protective List proceedings (2015/19513) were listed before the Registrar in Equity throughout August and September. The matter is currently listed for hearing before Rein J in March 2017. An application to expedite this hearing date was unsuccessful.

Notice of motion

1. [25]

   On 24 October 2016, the applicant filed a notice of motion in the Court of Appeal proceedings (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:

2. [26]

   The motion was supported by an affidavit of Mr IA filed 24 October 2016 and an amended affidavit filed 26 October 2016.

3. [27]

   On 31 October 2016, the amended motion came before Payne JA. The Court 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. The following orders were made on that day:

4. [28]

   On 7 November 2016, the applicant filed written submissions. On 22 November 2016, the respondent filed written submissions. On 25 November 2016, the applicant filed his written submissions in reply.

5. [29]

   The written submissions filed by Mr IA reiterate a number of complaints he has already made. At the heart of those complaints is the assertion that on 20 April 2016 Ward JA and Sackville AJA made an order requiring the Court of Appeal to sit as a trial court (for up to 20 days) and determine Mr IA’s District Court damages proceedings to finality.

6. [30]

   Mr IA submitted that the failure of the Court of Appeal to determine his District Court damages proceedings to finality, as, he asserted, Ward JA and Sackville AJA had ordered, constituted an injustice.

7. [31]

   In his submissions, Mr IA repeatedly made submissions to the following effect:

8. [32]

   Mr IA’s submissions elaborate on his demands for an interim and final payment of damages in his underlying proceedings.

9. [33]

   The submissions also contain complaints 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.

10. [34]

    On 12 December 2016, after the parties had been notified that this judgment would be handed down on 13 December 2016, Mr IA sent to the Court by e-mail further submissions essentially reiterating the complaints he had earlier made. Although filed without leave, the Court has taken those submissions into account in reaching its decision.

11. [35]

    The respondent submitted that the applicant’s motion is incompetent. The Court of Appeal dealt with Mr IA’s appeal to finality and addressed all of the grounds contained in the amended Summons seeking leave to appeal and amended draft Notice of Appeal.

12. [36]

    The respondent emphasised that there are no proceedings currently before the Court of Appeal and none of the issues raised in the applicant’s motion arise by way of appeal from a decision made in a court below.

13. [37]

    Before considering the detail of the submissions it is necessary to set out the orders made by Ward JA and Sackville AJA on 20 April 2016. Mr IA’s misconception about the scope and meaning of those orders lies at the heart of the present amended motion. Those orders were:

14. [38]

    As can be seen, these orders do not have the effect of listing for hearing any trial on the merits of Mr IA’s District Court claim (for “20 days in court of appeal” or at all). Neither do they say anything about a transfer of the underlying proceedings in the District Court to the Court of Appeal. This misconception lies at the heart of orders 1, 2 and 4 sought by Mr IA’s amended motion.

15. [39]

    The orders made by Ward JA and Sackville AJA on 20 April 2016 do not address any claim by Mr IA for “monies owed” to him by an insurer or any other person. This misconception lies at the heart of order 3 sought by Mr IA’s amended motion.

16. [40]

    The orders made by Ward JA and Sackville AJA do not address any claim by Mr IA for “forensic evidence for assessments for losses and damages”. This misconception lies at the heart of order 5 sought by Mr IA’s amended motion.

17. [41]

    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.

18. [42]

    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.

19. [43]

    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.

20. [44]

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

    1. (1)

       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

    2. (2)

       the issues contained in the motion dismissed by Gleeson JA.

21. [45]

    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.

22. [46]

    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.

23. [47]

    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.

24. [48]

    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.

25. [49]

    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.

26. [50]

    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.

27. [51]

    No order for costs was sought by the respondent. The respondent did seek an order that Mr IA not be permitted to file any further motions in this Court without leave. We are not persuaded that, at present, any such order is either necessary or desirable.

Orders

1. [52]

   The amended notice of motion filed 31 October 2016 is dismissed as incompetent.