IA v TA (No 3) [2019] NSWCA 6

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: IA v TA (No 3) [2019] NSWCA 6 Hearing dates: 8 February 2019 Date of orders: 08 February 2019 Decision date: 08 February 2019 Before: Gleeson JA; Payne JA; Simpson AJA Decision: (1) Leave granted to file the amended notice of motion dated 23 January 2019.

(2) The amended notice of motion dated 23 January 2019 is dismissed as incompetent. Catchwords: PRACTICE AND PROCEDURE – appeal determined – notice of motion seeking further relief – whether appeal finally determined – whether notice of motion incompetent Legislation Cited: NSW Trustee and Guardian Act 2009 (NSW), ss 41, 86

Uniform Civil Procedure Rules 2005 (NSW), r 7.14 Cases Cited: A v A [2015] NSWSC A v A [2016] NSWCA 17 IA v TA (No 2) [2016] NSWCA 349 TA v IA [2016] NSWCA 179 TA v IA [2017] NSWSC 1597 Category: Principal judgment Parties: Mr IA (self-represented) Representation: Counsel:

Solicitors: File Number(s): 2015/242864 Publication restriction: Party name suppressed

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment 1. 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. 2. 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. 3. 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). 4. 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. 5. 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.