Macura v Sarasevic & Anor [2020] NSWCA 119

Macura v Sarasevic & Anor [2020] NSWCA 119

The evidence, including Dr Napper's unchallenged opinion that the appellant understood the court case, the legal processes and the outcome sought and could instruct legal representatives, showed that the appellant had capacity to commence and continue the appeal. Any isolated delusion about Vietnam War service would not materially affect his ability to conduct the appeal. The earlier unopposed appointment of a tutor in concluded Equity Division proceedings raised a question about capacity but did not preclude a later finding that the appellant had capacity in the appeal. Accordingly, if and to the extent necessary, the Court dispensed with any requirement that the appellant not commence...

Jurisdiction
Australia
Judgment Date
15 June 2020
Procedural Posture
Notice of Motion in an Appeal / Application to Dispense With Any Requirement That the Appellant Commence or Carry on the Appeal by a Tutor
Outcome
Application granted to the extent necessary; costs of the application ordered to be the appellant's costs in the appeal.
Legal Topics
['persons Under Legal Incapacity' 'tutors' 'capacity to Conduct Proceedings' 'dispensing With Compliance With Procedural Requirements']
['civil Procedure'] ['persons Under Legal Incapacity' 'tutors' 'capacity to Conduct Proceedings' 'dispensing With Compliance With Procedural Requirements']

Case Brief

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Procedural Posture

Notice of Motion in an Appeal / Application to Dispense With Any Requirement That the Appellant Commence or Carry on the Appeal by a Tutor

Legal Issues

  1. 1 ['Whether the appellant was under a legal incapacity for the purposes of r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether the Court should dispense with any requirement that the appellant commence or carry on the appeal by a tutor.' "Whether the primary judge's earlier appointment of a tutor precluded a finding that the appellant later had capacity to commence and continue the appeal."]

Ratio Decidendi

The evidence, including Dr Napper's unchallenged opinion that the appellant understood the court case, the legal processes and the outcome sought and could instruct legal representatives, showed that the appellant had capacity to commence and continue the appeal. Any isolated delusion about Vietnam War service would not materially affect his ability to conduct the appeal. The earlier unopposed appointment of a tutor in concluded Equity Division proceedings raised a question about capacity but did not preclude a later finding that the appellant had capacity in the appeal. Accordingly, if and to the extent necessary, the Court dispensed with any requirement that the appellant not commence...

Court Disposition

Application granted to the extent necessary; costs of the application ordered to be the appellant's costs in the appeal.

Orders

  • ['If and to the extent necessary, dispense with any requirement the appellant not commence or carry on these proceedings except with a tutor.' "Order that the costs of the application be the appellant's costs in the appeal."]