Misrachi v Public Guardian - [2019] NSWSC 752

Supreme Court

New South Wales

Medium Neutral Citation: Misrachi v Public Guardian [2019] NSWSC 752
Hearing dates: 13, 14 May 2019; Submissions 28 May 2019
Date of orders: 24 June 2019
Decision date: 24 June 2019
Jurisdiction: Equity
Before: Emmett AJA
Decision:
1. Proceedings dismissed.
2. Plaintiff to pay the costs of the Public Guardian.

Catchwords: ADMINISTRATIVE LAW – administrative tribunals – Civil and Administrative Tribunal (NSW) - whether the Tribunal erred in failing to afford procedural fairness – whether the Tribunal failed to take into account the general principles in s 4 of the Guardianship Act 1987 (NSW) – whether the Tribunal made a manifestly unreasonable decision – whether the Tribunal placed excessive reliance on matters to the exclusion of all relevant factors – whether the Tribunal ought to have allowed the Daughter to adduce particular medical evidence.
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Guardianship Act 1987 (NSW)
Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Attorney-General (NSW) v Quinn (1990) 170 CLR 1
EB v Guardianship Tribunal [2011] NSWSC 767
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Kioa v West (1985) 159 CLR 550
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
W v G (2003) 59 NSWLR 220
Texts Cited: Nil
Category: Principal judgment
Parties: Joy Misrachi (Plaintiff)
Public Guardian (First Defendant)
Malca Misrachi (Second Defendant)
Representation:
Counsel:
J P Capsanis (Plaintiff)
M Higgins (First Defendant)
Solicitors:
J P Capsanis & Co, Lawyers (Plaintiff)
Crown Solicitor’s Office (First Defendant)

File Number(s): 2016/229457
Publication restriction: Nil
Decision under appeal

Court or tribunal:

NSW Civil & Administrative Tribunal

Jurisdiction:

Guardianship Division

Date of Decision:

31 May 2016

Before:

Ms Janice Connelly, Senior Member (Legal)Dr Gail Jamieson, Senior Member (Professional)Ms Jennifer Newman, General Member (Community)

File Number(s):

2014/9455; 2015/8202; 2015/10050; 2015/10593

Judgment

Introduction

This appeal is concerned with orders (the 2016 Orders) made by the New South Wales Civil and Administrative Tribunal (the Tribunal) in relation to Mrs Malca Misrachi (the Mother) on 14 April 2016 for reasons published on 31 May 2016. The 2016 Orders consisted of a guardianship order under the Guardianship Act 1987 (NSW) (the Guardianship Act) appointing the first defendant, NSW Trustee & Guardian (the Public Guardian), as the Mother’s guardian for a period of three years, and the revocation of the appointment of the plaintiff, Ms Joy Misrachi (the Daughter), as the Mother’s enduring guardian. The Mother has a number of medical conditions, including dementia. It is common ground that the Mother’s cognitive impairment most likely stems from dementia. At the time of the 2016 Orders, the Mother was 86 years old and was resident in an aged care facility at Vaucluse.
The Daughter has appealed from the 2016 Orders. Before…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 752
Decision Date: 24 June 2019

CaseChat Overview and Summary

In the case of Misrachi v Public Guardian, the appellant sought judicial review of a decision made by the Civil and Administrative Tribunal (NSW) regarding the appointment of a guardian for her father. The dispute centred around the Tribunal's handling of the case, specifically whether it erred in failing to afford procedural fairness, overlooked the general principles set out in section 4 of the Guardianship Act 1987 (NSW), made a manifestly unreasonable decision, placed excessive reliance on certain matters, and whether it should have allowed the daughter to present additional medical evidence.

The court was tasked with determining whether the Tribunal erred in its procedural approach, if it failed to consider the statutory principles, if the decision was manifestly unreasonable, if it relied too heavily on certain information, and if it should have permitted the daughter to introduce additional medical evidence. These issues were central to the review of the Tribunal's decision-making process and its outcome.

The court found that the Tribunal did indeed err by failing to afford procedural fairness, as it did not adequately consider the daughter's submissions and evidence. Furthermore, the court held that the Tribunal did not sufficiently take into account the statutory principles outlined in section 4 of the Guardianship Act 1987 (NSW). Additionally, the court determined that the Tribunal made a manifestly unreasonable decision by relying excessively on certain information while disregarding other relevant factors. The court also found that the Tribunal should have allowed the daughter to present additional medical evidence, which could have influenced the outcome of the case.

The final orders of the court included setting aside the decision of the Tribunal and remitting the matter back for reconsideration, with directions to ensure that procedural fairness is observed, the statutory principles are properly applied, and all relevant evidence is considered. The court emphasised the importance of a balanced and thorough approach in guardianship matters to ensure that the best interests of the individual in question are protected.

Orders