TA v IA

Judgment (3 paragraphs)

[1]

EX TEMPORE Judgment

These proceedings are brought in the Court's protective jurisdiction during the Court's vacation period. For convenience on the present motion the Court will use the same pseudonyms for the parties that the Court of Appeal used in the recent appeal in the proceedings: see IA v TA [2016] NSWCA 179.
TA brings an urgent motion seeking that IA attend a medical examination that is planned to be conducted by a psychiatrist, Dr Bruce Westmore on 5 January 2017. So far IA, the Defendant in these proceedings and the Respondent to the motion, has declined to attend this medical examination. The matter deserves to be heard during vacation: the proposed medical examination is a procedural step potentially to equip the parties with evidence for the hearing listed before Rein J in March 2017.
The proceedings have a complex history, which may be briefly summarised. IA was injured in a car accident some years ago. He brought proceedings for damages for personal injury in the District Court. TA, the defendant in the District Court proceedings, admitted liability in those proceedings. The hearing to assess any damages for which TA may be liable to IA is yet to take place in the District Court. Issues arose before trial as to whether IA had the legal capacity to conduct the proceedings and to give instructions himself. There was a contest in the District Court about whether a tutor should be appointed under Uniform Civil Procedure Rules 2005 ("UCPR"), r 7.14 to conduct those proceedings on IA's behalf.
TA ultimately commenced proceedings in this Court in the Protective List of the Equity Division, seeking orders for the management of IA's estate under the NSW Trustee and Guardian Act 2009, s 41. The proceedings were heard in July 2015 before Lindsay J, the Protective List Judge. His Honour declared that IA was incapable of managing his own affairs, ordered that his estate be subject to management under the NSW Trustee and Guardian Act and committed the financial management of the estate to the NSW Trustee and Guardian. Later the NSW Trustee and Guardian consented to being appointed IA's tutor in the District Court proceedings and in certain proceedings that had been brought in the Common Law Division of this Court to transfer the District Court proceedings into this Court. Orders for the appointment of the NSW Trustee and Guardian as IA's tutor were made in both the District Court and Common Law Division proceedings.

Conclusion and Orders

Accordingly, the Court makes the following orders and directions: 1. On the motion, the Court orders that the Defendant, [name not published], attend a medical examination to be conducted by Dr Bruce Westmore at [address not published] on Thursday, 5 January 2017 at [time not published]. 2. Direct the Defendant provide by Monday, 30 January 2017 such invoices from medico-legal experts that the Defendant has retained and which the Defendant claims are unpaid, together with such material as is available to him to establish that they are unpaid, and to provide the same to the legal representatives of the Plaintiff by 4pm on that day. 3. Direct the Plaintiff by Monday 13 February 2017 to make such direct enquires of the medico-legal experts the subject of Order 2 as are necessary to ascertain whether or not their invoices have been paid and then to pay all unpaid invoices by that same date. 4. Order that the costs of this application will be the successful party's costs in the cause listed for hearing before Rein J.

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Judgment (3 paragraphs)

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