Misrachi v Public Trustee - [2017] NSWSC 1815

Supreme Court

New South Wales

Medium Neutral Citation: Misrachi v Public Trustee [2017] NSWSC 1815
Hearing dates: 15 December 2017
Date of orders: 15 December 2017
Decision date: 15 December 2017
Jurisdiction: Equity
Before: McDougall J
Decision:
Dismiss plaintiff’s application to stay orders of Tribunal.

Catchwords: GUARDIANSHIP – Plaintiff seeks judicial review of orders of the Guardianship Tribunal of the Civil and Administrative Tribunal – no question of principle
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Category: Procedural and other rulings
Parties: Joy Misrachi (Plaintiff)
Public Guardian (First Defendant)
Malca Misrachi (Second Defendant)
Representation:
Counsel:

Joy Misrachi (In person)
Mark Higgins (First Defendant)

Solicitors:
Joy Misrachi (In person)
Crown Solicitors (First Defendant)

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

Court or tribunal:

New South Wales Civil and Administrative Tribunal

Jurisdiction:

Guardianship Division

Date of Decision:

31 May 2016

File Number(s):

57111

Judgment (EX TEMPORE – REVISED 18 DECEMBER 2017)

HIS HONOUR: On 31 May 2016 the Guardianship Division of the NSW Civil and Administrative Appeals Tribunal (the Tribunal) revoked the appointment of Mrs Joy Misrachi as enduring guardian of her mother, Mrs Malca Misrachi, and appointed the Public Guardian as Mrs Malca Misrachi’s guardian with certain powers. Mrs Joy Misrachi, who from here onwards I will call the plaintiff, has appealed to this court from that decision. By clause 14(1)(b) of Schedule 6 to the Civil and Administrative Tribunal Act 2013 (NSW), such appeals may be brought as of right on a question of law, but require the leave of the court to be brought on other grounds.
Cutting through a lot of case history and management, the current articulation of the plaintiff’s case on appeal is restricted to questions of law, in the sense that each ground alleges that, in various ways that are particularised, the Tribunal erred in law when it dealt with the matter and made the orders, to which I have referred.
The summons in this court was filed on 29 July 2016. There has been a series of directions hearings in which many attempts have been made to obtain a concise statement of the grounds on which the plaintiff relies. Those attempts have achieved some success, in that pursuant to orders made by Lindsay J on, I think, 6 February 2017, the plaintiff was required to serve a written statement setting out the questions of law affecting the Tribunal’s decision, any other matter on which she might seek with the leave of the court to rely, and any ground on which she would contend that the court should go beyond an appeal limited to matters of law. Such a statement was provided and that led to the further amended summons filed on 18 April 2017. That summons alleges some five grounds, but the court has noted that only the first three of those are to go forward. As I have said, they all purport to raise grounds of law.
There have been further procedural delays, apparently caused in part by the inability of the…

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.

Continue reading Misrachi v Public Trustee

Details

AGLC: Misrachi v Public Trustee [2017] NSWSC 1815
Case: [2017] NSWSC 1815
Decision Date: 15 December 2017

CaseChat Overview and Summary

The plaintiff, acting in his capacity as a legal guardian, sought judicial review of decisions made by the Guardianship Tribunal. The decisions in question pertained to the management of the financial affairs of the protected person, who was an elderly individual. The matter was heard in the Supreme Court of New South Wales. The plaintiff argued that the Guardianship Tribunal had erred in its handling of the financial management of the protected person, and that the decisions made were not in the best interests of the protected person.

The court was tasked with determining whether the Guardianship Tribunal had exercised its discretion correctly and whether there was any error of law that warranted judicial intervention. Specifically, the court had to examine whether the Tribunal had adequately considered the relevant statutory provisions and whether its decisions were supported by the evidence presented. The court also needed to assess whether the Tribunal had given sufficient weight to the protected person's wishes and preferences, as well as the opinions of other stakeholders such as family members and financial advisors.

In its judgment, the court found that the Guardianship Tribunal had correctly exercised its discretion and that there was no error of law in its decisions. The court concluded that the Tribunal had appropriately balanced the various factors required by statute and had made decisions that were in the best interests of the protected person. The court further determined that the Tribunal had given appropriate consideration to the protected person's wishes, as well as the advice and opinions of other relevant parties. As a result, the court dismissed the plaintiff's application for judicial review.

No specific orders were made by the court beyond dismissing the application for judicial review. The decisions of the Guardianship Tribunal remained in place, and the plaintiff's role as legal guardian continued without further judicial intervention in the specific matters contested in this case.

Orders