APPEALS — leave to appeal — interlocutory orders — where orders made that the applicant was not capable of conducting proceedings on her own behalf — subsequent application to establish capacity — where applicant seeks leave to appeal against further finding of incapacity — no proper basis for grant of leave to appeal
Quick Take
1Where a prior judicial determination of legal incapacity under UCPR r 7.13 has been made and not appealed, a subsequent application to establish capacity is premised on the correctness of the original finding; the applicant must adduce evidence demonstrating improvement in capacity since that determination, and reliance on the same psychiatric evidence that was before the original decision-maker cannot assist.
2A court is not required to assume the truth of pleaded allegations of fraud that are unparticularised; unparticularised fraud allegations ought not to have been made at all and provide no barrier to summary dismissal under UCPR r 13.4.
3Legal incapacity to conduct proceedings is a task-specific and time-specific inquiry: a person may be capable of daily living tasks yet lack the capacity to understand and evaluate the processes of litigation, and the court may assess capacity by reference to the litigant's actual conduct of the proceedings including the nature of allegations made.
