Xardia v Commissioner of Taxation & Commissioner of NSW Police; Xardia v Department of Defence [2016] NSWDC 63

Xardia v Commissioner of Taxation & Commissioner of NSW Police; Xardia v Department of Defence [2016] NSWDC 63

Where real doubt arises regarding a party’s legal capacity, it is appropriate and procedurally fair for the court to order a medical examination to resolve the question and adjourn any motions for summary dismissal or striking out pending receipt of the expert’s report.

Jurisdiction
Australia
Judgment Date
02 May 2016
Procedural Posture
Civil / Interlocutory Application – Consideration of Summary Dismissal/strike Out Motions and Order Made for Medical Examination as to Plaintiff's Capacity
Outcome
Motions for summary dismissal and for strike out stood over pending expert medical report on capacity; orders made for medical examination and directions for further conduct.
Legal Topics
['order for Medical Examination' 'plaintiff’s Legal Capacity' 'summary Dismissal' 'strike Out Application']
['practice and Procedure'] ['order for Medical Examination' 'plaintiff’s Legal Capacity' 'summary Dismissal' 'strike Out Application']

Case Brief

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Procedural Posture

Civil / Interlocutory Application – Consideration of Summary Dismissal/strike Out Motions and Order Made for Medical Examination as to Plaintiff's Capacity

Legal Issues

  1. 1 ['Whether plaintiff has legal capacity to conduct proceedings' 'Whether to order medical examination to determine capacity' 'Whether to proceed to determine summary dismissal or strike out applications before capacity issue is resolved']

Ratio Decidendi

Where real doubt arises regarding a party’s legal capacity, it is appropriate and procedurally fair for the court to order a medical examination to resolve the question and adjourn any motions for summary dismissal or striking out pending receipt of the expert’s report.

Court Disposition

Motions for summary dismissal and for strike out stood over pending expert medical report on capacity; orders made for medical examination and directions for further conduct.

Orders

  • ["The defendants' notices of motion for dismissal/strike out are stood over for directions to 12 August 2016;" 'Dispense with requirement for filing of separate motion documents for medical examination order;' 'Plaintiff to make herself available for medical examination by Dr Bruce Westmore on 23 June 2016;'...