DD v Lewis; DD v PP; DD v AA

[2024] NSWCA 103

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

DD v Lewis; DD v PP; DD v AA [2024] NSWCA 103

Hearing dates:

1 May 2024

Date of orders:

1 May 2024

Decision date:

01 May 2024

Before:

Payne JA at [1];
Mitchelmore JA at [8]

Decision:

2023/00363042

1. The summons seeking leave to appeal dated 15 February 2024 is dismissed with costs.
2. The applicant’s notice of motion filed on 15 February 2024 is dismissed with costs.

2023/00363056

1. The summons seeking leave to appeal dated 15 February 2024 is dismissed with costs.
2. The applicant’s notice of motion filed on 15 February 2024 is dismissed with costs.

2023/00363057
1. The summons seeking leave to appeal dated 15 February 2024 is dismissed with costs.
2. The applicant’s notice of motion filed on 15 February 2024 is dismissed with costs.

Catchwords:

CIVIL PROCEDURE — Summons seeking leave to appeal — Summons abandoned and dismissed

CIVIL PROCEDURE — Parties — Persons allegedly under legal incapacity — Tutors — Notice of motion seeking appointment of tutor — Notice of motion not pressed and dismissed

Cases Cited:

Bar-Mordecai v Rotman & Ors [2000] NSWCA 123

Category:

Principal judgment

Parties:

DD (applicant)

Darren John Lewis (respondent)
PP (respondent)
AA (respondent)

Representation:

Counsel:
S Agosta (solicitor for DD who did not appear at the hearing)
R Brown (respondents)

Solicitors:
Nelson McKinnon Lawyers (applicant)
Carroll & O’Dea Lawyers (respondents)

File Number(s):

DD v Lewis 2023/00363042
DD v PP 2023/00363056
DD v AA 2023/00363057

Publication restriction:

DD v AA (2023/363057)
Pursuant to s 578A of the Crimes Act 1900 (NSW), and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of, or any matter which could identify, the respondents is prohibited.
Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) there be no publication of the names and addresses of either party to the proceedings or any information tending to reveal the identity or address of either party, until further order of the Court.

DD v PP (2023/363056)
Pursuant to s 578A of the Crimes Act 1900 (NSW), and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of, or any matter which could identify, the respondents is prohibited.
Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that there be no further disclosure of the identity of the respondent and that the proceedings in this Court be known as DD v PP, until further order.

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law Division

Citation:

N/A (Yehia J); N/A (Walton J); [2023] NSWSC 1301 (Campbell J)

Date of Decision:

23 March 2023 (Yehia J); 17 October 2023 (Walton J); 27 October 2023 (Campbell J)

Before:

Yehia J; Walton J; Campbell J

File Number(s):

2018/00200890 (Yehia J); 2018/00204001 (Walton J); 2021/00155673 (Campbell J)

Judgment – EX TEMPORE

Amended in accordance with the principles in Bar-Mordecai v Rotman & Ors [2000] NSWCA 123

1. PAYNE JA: Before the Court this morning are three summonses for leave to appeal and three notices of motion. There is a summons for leave to appeal in the matter of DD v Darren John Lewis (2023/00363042) and a notice of motion in the same proceedings. There is a summons for leave to appeal in the matter of DD v PP (2023/00363056) and a notice of motion in the same matter. Finally, there is a summons for leave to appeal in the matter of DD v AA (2023/00363057) and a notice of motion in the same proceedings.

2. Broadly speaking, the summonses for leave to appeal sought to attack three earlier decisions of this Court made respectively by Yehia J, Walton J and Campbell J. Each notice of motion sought the appointment of a tutor to Mr DD, apparently on the basis that the tutor should have been appointed by each of Yehia J, Walton J and Campbell J.

3. This morning, Mr Brown of counsel appears for the respondents in each matter, and helpfully handed a series of emails to the Court, which I have marked exhibit 1, the effect of which is that, on instructions, a solicitor, Mr Agosta, acting for Mr DD on instructions from Mr DD’s attorney, Mr Barbeliuk, seeks to withdraw the summonses, and does not press the notices of motion. He neither consents to nor opposes the making of a cost order in relation to the dismissal of the summonses and notices of motion.

4. There is no basis shown in any of the voluminous material which was filed, other than for the Court to make orders that costs follow the event. Accordingly, the summonses in each of the matters of DD v Lewis, DD v PP and DD v AA is dismissed with costs, and the notices of motion in DD v Lewis, DD v PP and DD v AA are each dismissed with costs.

5. The orders of the Court in proceeding 2023/00363042 are:

1. The summons seeking leave to appeal dated 15 February 2024 is dismissed with costs.

2. The applicant’s notice of motion filed on 15 February 2024 is dismissed with costs.

6. The orders of the Court in proceeding 2023/00363056 are:

1. The summons seeking leave to appeal dated 15 February 2024 is dismissed with costs.

2. The applicant’s notice of motion filed on 15 February 2024 is dismissed with costs.

7. The orders of the Court in proceeding 2023/00363057 are:

1. The summons seeking leave to appeal dated 15 February 2024 is dismissed with costs.

2. The applicant’s notice of motion filed on 15 February 2024 is dismissed with costs.

8. MITCHELMORE JA: I agree with the orders of Payne JA, and with his Honour’s reasons.

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