4.10: Assistance by the Court
4.5: Complex case obligations

Case Summary

The underlying Action concerned an Enduring Power of Attorney executed by the Appellant appointing the Respondents as his attorneys. During a Case Conference, the Appellant requested an “immediate declaration” that he had regained capacity. This request was dismissed, and the Appellant appealed the dismissal.

During the Case Conference, the Case Conference Judge was not satisfied that she could make the necessary findings to summarily dispose of the issue of the Appellant’s capacity based only on Affidavit evidence. The Case Conference Judge ordered a Trial on the issue of the Appellant’s current capacity. As part of this, she instructed the Parties to prepare a Litigation Plan in accordance with Rule 4.5.

The Court noted that Case Conference Decisions, like Case Management Decisions, are afforded a high level of deference on Appeal. Here, there was nothing unreasonable or unjust about the Case Conference Judge’s Decision.

The Court noted that the Appellant’s evidence was not uncontested. The Case Conference was convened to address procedural questions only, pursuant to Rule 4.10(4) and the agenda set by the Case Conference Judge. Therefore, it was understandable that the Respondents had not yet conducted cross-examinations or tendered any evidence of their own. In these circumstances, it was reasonable for the Case Conference Judge to conclude that she could not make the necessary findings of fact regarding the Appellant’s capacity.

The Court found that the Appellants had failed to demonstrate any reviewable error. The Appeal was dismissed.

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