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)

1. 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.

2. 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.

3. 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.

4. There have been further procedural delays, apparently caused in part by the inability of the plaintiff to comply with directions for provision of documents to be incorporated in a court book.

5. The matter was last before the court on 4 December 2017, when orders were made for the plaintiff to serve further evidence (relating to a ground of appeal which asserted, in substance, that the interpreter before the Tribunal had been incompetent) and stood the matter over for directions on 5 February 2018. It may be that when the matter comes back before the court on that date, a hearing date can be allotted.

6. It has been necessary to recount that history (which I stress is not all the relevant history) because by notice of motion filed in court today, the plaintiff seeks to stay the Tribunal’s orders revoking her appointment as enduring guardian and appointing the Public Guardian as guardian.

7. There is alternative relief sought, but that is to much the same effect.

8. The evidence in support of the notice of motion comprises the plaintiff's affidavit affirmed 14 December 2017, and an affidavit of Mr Muhammed Aleem affirmed 5 June 2017. Mr Aleem's affidavit deposes to events that occurred in June and October 2015 and in April and May 2017. It is not immediately apparent why the concerns expressed in Mr Aleem's affidavit (to the extent that it is in probative form) could not have been raised before the court a lot earlier than today.

9. The plaintiff's affidavit, again to the extent that it is in admissible form and probative, makes a number of complaints concerning her mother's treatment in Vaucluse Nursing Home. There are complaints as to earlier injuries and incidents which occurred in 2015 and 2016 and through until April 2017. The next complaint relates to an incident on Mother's Day, 14 May 2017. There are further complaints relating to a little later in May and then to events in August and September 2017. With one exception, to which I will turn in a moment, the evidence does not go beyond them.

10. Again, I mention those matters because Mrs Misrachi's submissions (she chose to appear for herself, although there was a lawyer present who initially appeared for her) made a number of allegations which were not based on any evidence before the Court.

11. I said I would refer to an event after September 2017. That refers to an occasion in October when, it is said, a friend visited the mother and later reported to the plaintiff that a resident had come up to her mother (and the friend) "in a threatening manner". The affidavit did not expand upon that, although the plaintiff in submissions sought to tell me more about it.

12. The submissions that the plaintiff put ranged a lot further than the evidence. There were complaints of collusion and conspiracy between the Public Guardian, the nursing home and the police. There were complaints of malfeasance on the part of each of those bodies. There were allegations of perjury, and allegations as to supposed gaps and inaccuracies in the court record. None of those matters, considered individually or together, appears to have any relevance whatsoever to the orders that are sought today.

13. It is quite apparent from the chronology of the appeal in this court that the principal reason why it has not been allocated a hearing date (and, in all likelihood, heard) is that the plaintiff for some months was unable or unwilling to formulate her case on appeal in a way which raises issues that are capable of decision. It was not until April this year, some 10 months after the proceedings were commenced, that she was able to do so. Thereafter, there have been further delays caused principally by the plaintiff's inability or unwillingness to comply with directions relating to the provision of documents.

14. Against the background that I have sketched, there is also the problem that the events of which complaint is now made have, with very few exceptions, occurred some months ago at the latest. There is absolutely no explanation for the failure to raise those matters before the Court at an earlier time.

15. I am now faced with the situation where, in the afternoon of the last sitting day of the last week of term, I am apparently expected to reach a decision on a merits question relating to the guardianship and care of the plaintiff's mother. If the plaintiff were entirely self-represented, some excuse could perhaps be made for that. But the position, as I have said, is that she has had available to her the benefit of legal assistance.

16. I should mention also that cl 14(5) of Schedule 6 to the Civil and Administrative Tribunal Act2013 (NSW) provides that subject to any order made by this Court, an appeal to this Court stays the decision under appeal. The Court has ordered that the decision not be stayed. It follows that it remains in force.

17. In substance, I am being asked to review an interlocutory order made by a judge of this court. Much of the material on which I have been asked to make that decision is material that could and should have been put before the judge. The judge could have been asked to reconsider the matter. It does not appear that this happened.

18. Moving from what may be regarded as technicalities to the merits of the matter, to the extent that the affidavit evidence shows anything in admissible form (and much of it does not), there is no basis shown for interfering at this stage with the Tribunal's orders. I say that in part because, the application having been brought on so quickly, there has been no opportunity for the public guardian to put on evidence in response. More fundamentally, however, to the extent that there is admissible evidence of matters relating to the treatment of her mother, they do not show that there has been any wrongdoing whatsoever. Many of the plaintiff's complaints concern her apparent exclusion from the nursing home. Even on her affidavit evidence, it would appear to be reasonably clear that she has been considerably disruptive there, and has been disruptive in her attempts to enlist the police force on her side. None of that provides a basis for this court to intervene.

19. Stepping back from the detail, and looking at the matter overall, it is clear that the plaintiff feels very strongly that she is in a better position to care for her mother than is the Public Guardian. She feels very strongly that she, and not the Public Guardian, should be looking after her mother's affairs. She feels very strongly that her mother should be located somewhere other than at the nursing home. I can understand and respect those feelings. They are normal manifestations of filial love and duty. But nothing in those understandable feelings demonstrates any reason for overturning, on what is effectively a merits basis, the order that the Tribunal made.

20. In those circumstances I order that the notice of motion filed in court today be dismissed.

21. I make no order as to costs.

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Decision last updated: 21 December 2017