IA v TA [2016] NSWCA 179

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: IA v TA [2016] NSWCA 179 Hearing dates: 20 June 2016 Decision date: 29 July 2016 Before: Bathurst CJ; Simpson JA; Payne JA Decision: (1) The requirements of r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW) be dispensed with in relation to the commencement and carrying on of these proceedings by way of application for leave to appeal and appeal.

(2) Leave to appeal granted on grounds limited to those grounds contained in the amended draft Notice of Appeal filed with the Court on 11 May 2016.

(3) Deem the draft Notice of Appeal filed with the Court on 11 May 2016 to be filed as a Notice of Appeal.

(4) Appeal allowed:

(a) Set aside the orders of the primary judge dated 20 July 2015, 3 August 2015 and 27 November 2015 in the Equity Division proceedings no. 2015/19513 and the Common Law Division proceedings no. 2015/186082; and

(b) Remit the matter to the Equity Division to determine the application in accordance with these reasons.

(5) Each party pay their own costs of the appeal. Catchwords: PROTECTIVE JURISDICTION – where applicant is the subject of a managed estate order and has been appointed a tutor for the purposes of litigation – applicant a protected person under the NSW Trustee and Guardian Act 2009 (NSW) – application for leave to appeal without tutor – whether the primary judge should have made arrangements to hear the oral evidence of the applicant's treating psychiatrist – whether the applicant was denied procedural fairness Legislation Cited: Civil Procedure Act 2005 (NSW) ss 14, 140 NSW Trustee and Guardian Act 2009 (NSW) ss 40, 41, 86 Uniform Civil Procedure Rules 2005 (NSW) r 7.14 Cases Cited: A v A [2015] NSWSC 1778 A v A [2016] NSWCA 17 H v H [2015] NSWSC 837 Mao v AMP Superannuation Ltd [2015] NSWCA 252 Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 Category: Principal judgment Parties: IA (applicant) TA (first respondent) NSW Trustee and Guardian (second respondent) Representation: Counsel: Mr Hooke SC / Mr Masur (applicant) Mr Fitzsimmons / Ms Warren (first respondent) Ms Brouwer (second respondent)