Tanious v Public Guardian

[2012] NSWCA 165

Court of Appeal

New South Wales

Case Title:

Tanious v Public Guardian

Medium Neutral Citation:

[2012] NSWCA 165

Hearing Date(s):

28 May 2012

Decision Date:

28 May 2012

Jurisdiction:

Before:

Macfarlan JA

Decision:

(1) Direct that the name of the first respondent in the title to the proceedings be changed to the Public Guardian.

(2) Dismiss the appeal.

(3) Order the appellant to pay the respondents' costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - application for summary dismissal - notice of appeal disclosing no arguable ground of appeal - appeal dismissed pursuant to UCPR r 13.14 - powers of a single judge of appeal - no issue of principle

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005

Cases Cited:

Australian Executor Trustees Limited v Pachkovski [2011] NSWCA 23

Texts Cited:

Category:

Principal judgment

Parties:

Mofeed Tanious (Appellant)
Judy Hunt (First Respondent)
Irini Moza (Second Respondent)

Representation

- Counsel:

Counsel:
Appellant in person
J McDonnell (Solicitor) (First Respondent)

- Solicitors:

Solicitors:
Appellant in person
Crown Solicitor's Office (First Respondent)

File number(s):

CA 2012/50000

Decision Under Appeal

- Court / Tribunal:

- Before:

Magistrate N Hennessy, Deputy President L Goodchild, Judicial Member M Bolt, Non-Judicial Member

- Date of Decision:

02 February 2012

- Citation:

[2012] NSWADTAP (GD) 3

- Court File Number(s)

119037

Publication Restriction:

JUDGMENT

1. HIS HONOUR: By Notice of Motion filed on 11 April 2012, the Public Guardian, Ms Judy Hunt, seeks an order dismissing the appeal in this matter. I should say at the outset that Ms Hunt should not have been joined as a party to the appeal in her own name rather than that of her office. I will direct therefore that the name of the first respondent to the appeal be changed to the Public Guardian.

2. Mr Tanious brings his appeal pursuant to s 119 of the Administrative Decisions Tribunal Act 1997, which permits him to appeal only "on a question of law." The decision against which he appeals is described in my judgment of 16 March 2012 in this matter ([2012] NSWCA 51).

3. Mr Tanious' grounds of appeal are as follows:

   "(1) On 12-01-2011 the Public Guardian was appointed to make decision on behalf of my father Mr Lawis Moza date of birth 23-01-1921 concerning his accommodation, health care, and medical treatment according to an order from the Guardianship Tribunal for 12 months.

   (2) The Guardianship tribunal order was made on false evidence provided by a doctor specialised in geriatric and thoracic medicine. At the time psychiatrist and psychologist are legally the responsible specialist to report about my father clinical situation.

   (3) On 25-11-2011 the Appeal panel of the administrative decisions tribunal has affirmed these false evidence by refusal to hear my new evidence. Copy of the decision included.

   (4) On 25-01-2012 The Guardianship Tribunal has adjourn the mentioned Guardianship order untill a new medical report from psychiatrist of old age accepting my request and refusing the public Guardian request for renewal of the Guardianship order without a new medical report from the responsible psychiatrist. Copy included.

   (5) The interference and negligence of the public Guardian for my father in need for psychiatrist follow up for more than one year has made a lot of pressure on me to withstand firmly in order to keep my father in a better situation.

   (6) The public Guardian was paid for more than one year in order to make decisions on the best interests of my father. At the time I paid a lot of effort to withstand firmly the negligence my father faced from the public Guardian. I was paid nothing for all these effort I did and I have been still doing.

   (7) I look for orders concerning the following:

   (A) Public Guardian should pay all cost for psychiatrist follow up and treatment for my father and compensation and apology for him.

   (B) Financial compensation and apology for me as well.

   (C) Ms Judy Hunt (Public Guardian) should obey for psychiatrist assessment to let us know on scientific bases causes of her refusing my father to be under follow up of psychiatrist.

   (D) My father in a clinical situation able to make his own decision no need for any interference from any Guardian for him. He needs a carer but not a Guardian in his current situation."

4. In support of her Notice of Motion, the Public Guardian submits that these grounds of appeal do not identify any question of law arising out of the judgment below which, if answered favourably to Mr Tanious, might lead to the judgment being set aside. I accept this submission as the grounds of appeal do not identify any respect in which the Administrative Decisions Tribunal (the "ADT") is alleged to have erred in law in its decision of 2 February 2012.

5. Many of the grounds, as well as much of what was submitted by Mr Tanious in response to the Notice of Motion, relate not to the decision the subject of the appeal to the ADT (and in turn the subject of the ADT's decision of 2 February 2012), but to the appropriateness of the guardianship order in respect of Mr Tanious' father, the conduct of the Public Guardian in giving effect to that order and, finally, the psychiatric assessment of Mr Tanious' father.

6. The only mention in the grounds of appeal of the decision appealed from appears in Ground 3 which simply refers to the decision, erroneously giving the hearing date as the date of decision, without alleging an error by the ADT on a question of law.

7. For these reasons, the notice of appeal discloses no arguable grounds for an appeal, with the result that the appeal should be dismissed pursuant to Uniform Civil Procedure Rules 2005 r 13.4. Section 46(1)(b) of the Supreme Court Act 1970 confers power on a single judge of appeal to take this course (see Australian Executor Trustees Limited v Pachkovski [2011] NSWCA 23 at [71]).

8. Accordingly I make the following orders:

   (1) Direct that the name of the first respondent in the title to the proceedings be changed to the Public Guardian.

   (2) Dismiss the appeal.

   (3) Order the appellant to pay the respondents' costs of the appeal.

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