Misrachi v Public Guardian

Case [2019] NSWCA 67

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Misrachi v The Public Guardian [2019] NSWCA 67
Hearing dates: 9 April 2019
Date of orders: 10 April 2019
Decision date: 10 April 2019
Before: Bell P;
Emmett AJA
Decision:

1. Leave to appeal refused.
2. The applicant to pay the respondent’s costs.

Catchwords:

CIVIL PROCEDURE – application for leave to appeal – applicant effectively seeking variation of interlocutory orders – absence of material change of circumstances

 

CIVIL PROCEDURE – application for leave to appeal – where grounds of appeal directly challenge findings of fact by primary judge – no isolation of error of principle – no demonstration that exercise of discretion miscarried – no clear injustice where statutory review and appeal from guardianship orders imminent

CIVIL PROCEDURE – pseudonym orders – when appropriate – guardianship matters – interrelationship between Court Suppression and Non-publication Orders Act 2010 (NSW) and s 65 of the Civil and Administrative Tribunal Act 2013 (NSW)
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 65, sch 6 cl 14
Court Suppression and Non-publication Orders Act 2010 (NSW) s 8(1)(e)
Guardianship Act 1987 (NSW), ss 18(1)(a), 25(2)(b)
Mental Health Act 2007 (NSW), s 162
Cases Cited: Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313
Attorney General of New South Wales v Huckstadt (No 2) [2017] NSWSC 595
BE Financial Pty Ltd v Das [2012] NSWCA 164
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
Gallo v Dawson [1990] HCA 30; 64 ALJR 458
Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21
Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324
Laurence v Gunner (No 3) [2016] NSWCA 18
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Sarah v The Public Guardian [2018] NSWSC 2005
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Serobian v Commonwealth Bank of Australia [2009] NSWCA 309
Category:Procedural and other rulings
Parties: Joy Misrachi (Applicant)
The Public Guardian (Respondent)
Representation:

Counsel:
J P Capsanis (Solicitor) (Applicant)
M Higgins (Respondent)

  Solicitors:
J.P. Capsanis & Co Lawyers (Applicant)
Crown Solicitor’s Office (Respondent)
File Number(s): 2019/19096
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Equity – Protective List
Citation:
Sarah v The Public Guardian [2018] NSWSC 2005
Date of Decision:
21 December 2018
Before:
Kunc J
File Number(s):
2016/229457

Judgment

  1. THE COURT: Leave to appeal is sought from the decision of Kunc J delivered on 21 December 2018 (Sarah v The Public Guardian [2018] NSWSC 2005) in which his Honour dismissed with costs a notice of motion that had been filed in court on 14 December 2018 and came before his Honour, as duty judge,…

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AGLC
Misrachi v The Public Guardian [2019] NSWCA 67
Case
[2019] NSWCA 67
Decision Date

CaseChat Overview and Summary

The applicant, Misrachi, sought leave to appeal from interlocutory orders made by the Supreme Court of New South Wales. The Public Guardian was the respondent. The core of the dispute concerned Misrachi's attempt to vary existing interlocutory orders, effectively seeking a different outcome than that previously determined by the primary judge.

The Court of Appeal was required to determine whether leave to appeal should be granted. Specifically, it considered whether the grounds of appeal, which directly challenged the primary judge's findings of fact, demonstrated an error of principle or a miscarriage of discretion. The Court also had to assess whether there was a clear injustice to the applicant, particularly in light of the imminent statutory review and appeal from the guardianship orders themselves. The appropriateness of pseudonym orders in guardianship matters, and their interrelationship with the *Court Suppression and Non-publication Orders Act 2010* (NSW) and s 65 of the *Civil and Administrative Tribunal Act 2013* (NSW), were also relevant considerations.

Bell P and Emmett AJA refused leave to appeal. Their Honours reasoned that the applicant had not isolated any error of principle in the primary judge's decision, nor had they demonstrated that the exercise of discretion had miscarried. The Court found no clear injustice, especially given that a statutory review and appeal from the guardianship orders were already pending. The Court also noted the absence of any material change in circumstances that would warrant a variation of the interlocutory orders.

Consequently, leave to appeal was refused, and the applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

1. Leave to appeal refused.

2. The applicant to pay the respondent’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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