IA v TA (No 3)

THE COURT: Before the Court is an application filed by the applicant, to whom we will refer as “Mr IA”, on 23 January 2019. Mr IA seeks leave to file what he describes as an “Amended Notice of Motion”. The full text of the orders Mr IA proposes to seek are set out in full below at [34]. Before turning to the orders sought it is convenient to recount some of the history of the proceedings.

Mr IA was injured in a motor vehicle accident on 2 July 2007 and suffered neck and head injuries. He commenced proceedings against TA on 26 February 2009 in the District Court. TA admitted liability and the insurer made substantial interim payments of compensation to Mr IA.

The District Court proceedings to assess damages were listed for hearing on 22 November 2010 and 20 May 2013, but were adjourned on both occasions at Mr IA’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 Mr IA’s motion seeking an advance interim payment to be made by the insurer of the first respondent to Mr IA on hardship grounds. The hearing of that motion became the occasion for a debate about whether a tutor should be appointed for Mr IA in the District Court proceedings under r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW).

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

On 4 February 2015, Judge Norton SC published a judgment in which she determined that Mr IA was unable to give instructions in the District Court matter and thus 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 Mr IA’s tutor, Judge Norton SC declined to make any order and noted that TA’s solicitors would seek instructions to approach the Supreme Court to have a financial management order made.

On 21 January 2015, TA 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, TA filed an amended Summons in proceedings no. 2015/19513.

On 7 July 2015, Mr IA 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, Mr IA also sought orders for the payment to him by TA of further interim payments of compensation.

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 Mr IA’s financial manager. On 3 August 2015, the NSW Trustee and Guardian was appointed as Mr IA’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.

On 6 October 2015, Mr IA filed an application for leave to appeal. Mr IA also filed a notice of motion seeking a long list of orders including, relevantly:

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.

On 20 April 2016, Mr IA’s 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 Mr IA to the pro bono panel for assistance. Directions were given by the Court for the filing of an amended draft Notice of Appeal. The initial grounds of appeal comprised a long list of complaints in which Mr IA sought damages in the sum of $120 million:

The orders made by Ward JA and Sackville AJA were:

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 Mr IA pro bono, were filed in this Court. The amended grounds concerned a denial of procedural fairness to Mr IA by the failure of the primary judge to facilitate the giving of oral evidence by Mr IA’s treating psychiatrist:

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

In considering the appeal, the Court was not required to address the issues raised in the initial draft grounds of appeal, which were replaced by the procedural fairness issues raised in the amended draft Notice of Appeal. 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.

On 24 October 2016, the applicant filed a notice of motion in the Court of Appeal proceedings (no. 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:

The motion was supported by an affidavit of Mr IA filed 24 October 2016 and an amended affidavit filed 26 October 2016. On 31 October 2016, the amended motion came before Payne JA sitting as a single judge in the referrals list.

It is a matter of some importance that on that occasion Mr IA was asserting that Sackville JA and Ward JA in the hearing on 20 April 2016 had somehow made an award of damages in Mr IA’s favour of many millions of dollars. Since that time, however, Mr IA has asserted in various ways that Payne JA made orders during that directions hearing finally determining his underlying case and making an award in his favour described, most recently, as $158,400,000.

Despite repeated claims subsequently made by Mr IA that his matter was finally determined by Payne JA on 31 October 2016, no such orders were made nor could they have been made.

What actually occurred during that brief directions hearing was that Payne JA 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. Justice Payne made the following orders (and only these orders) on that day:

This motion to reopen the proceedings was dismissed as incompetent by this Court on 13 December 2016. The Court made the following orders, “the amended notice of motion filed 31 October 2016 is dismissed as incompetent”: IA v TA (No 2) [2016] NSWCA 349 (Ward & Payne JJA, Sackville AJA).

On 24 November 2017, Ward CJ in Eq found that Mr IA was incapable of managing his affairs in relation to the relevant District Court proceedings and appointed the NSW Trustee as manager of his estate relating to the proceedings: TA v IA [2017] NSWSC 1597. In that hearing evidence was led from Mr IA’s treating psychiatrist, Dr Smith. Ward CJ in Eq set out that evidence at some length, which was to the effect that Dr Smith did not believe that Mr IA had capacity to manage his affairs. Her Honour made the following orders:

There was no appeal from her Honour’s orders.

On 15 November 2018, the District Court approved a settlement of the proceedings between Mr IA and Mr TA of $1.38 million.

On 21 December 2018, Lindsay J made orders in the Protective List (in proceedings no. 2015/19513) concerning the management of those settlement funds. Those orders were:

No appeal was lodged in relation to those orders.

On 7 February 2019, Lindsay J made orders in the Protective List (in proceedings no. 2015/19513) concerning the distribution of those funds:

On 26 June 2018, Mr IA filed a notice of motion in the Court of Appeal, purportedly in the proceedings which had been determined to finality in 2016. That motion sought the following orders:

It appears that this motion was filed on the fundamentally mistaken belief that orders had been made on 31 October 2016 in the referrals list which somehow finally determined Mr IA’s underlying claim in the District Court against Mr TA. No such orders were made, and Mr IA’s assertions about what took place on 31 October 2016 are fundamentally misconceived.

On 2 July 2018, the Registrar of the Court of Appeal made the following orders in relation to this motion:

There was no challenge made to the Registrar’s order.

A document dated 23 January 2019 was sought to be filed by Mr IA in the Registry of the Court of Appeal described as “Amended notice of motion of 26th June 2016, seeking relief for all damages sustained from 2007 MVA general damages as forensic assessments with precedent”.

It is appropriate to treat this document as an application for leave within the meaning of order 5 of 2 July 2018 to file a further motion in the Court of Appeal proceedings. This motion is described as filed in proceedings no. 2015/242864 (the file number of the original Court of Appeal proceedings). The motion was filed together with an affidavit from Mr IA and three lever arch folders of material in support, which we have taken into account.

This further motion seeks the following orders:

This Court said in IA v TA (No 2) about a materially indistinguishable motion filed by Mr IA in the same proceedings:

Due to continued e-mail correspondence from Mr IA to the Registrar of the Court, the Court was convened urgently to hear Mr IA’s application. Given the fundamental and continuing misconception on Mr IA’s part about the jurisdiction of this Court and what he asserts occurred in a directions hearing on 31 October 2016, it is apparent that Mr IA may be prejudicing his interests by ignoring the proceedings being conducted in the Equity Division.

The application by Mr IA to file the amended notice of motion was fixed for hearing on 8 February 2019 before the Court as presently constituted.

The Court of Appeal dealt with Mr IA’s original 2016 challenge to the orders made by Lindsay J to finality. The only matters ultimately before this Court related specifically and exclusively to the financial management orders that were made in the Equity Division of the Supreme Court by Lindsay J in 2015. The orders made by Lindsay J in 2015 were set aside and the matter remitted to the Equity Division. 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. Ward CJ in Eq dealt with the case on remitter from this Court. Her Honour made orders over 12 months ago, which orders were not appealed to this Court.

After the resolution of Mr IA’s appeal in 2016, the Court of Appeal was not vested with some continuing supervisory jurisdiction of all proceedings involving Mr IA. There being no proceeding on foot in this Court, no relief can be sought by notice of motion. No other jurisdiction to deal with the motion was advanced by Mr IA in the voluminous material he filed. The amended notice of motion dated 23 January 2019 is incompetent.

Mr IA’s baseless claims that Lindsay J in the Equity Division is somehow acting contrary to an order of the Court of Appeal must cease. No order has ever been made in the Court of Appeal awarding him any sum of money and there are no proceedings at present on foot in the Court of Appeal.

The appropriate course is to make the following orders: