Misrachi v NSW Civil and Administrative Tribunal [2019] NSWSC 592

Supreme Court New South Wales

Medium Neutral Citation: Misrachi v NSW Civil and Administrative Tribunal [2019] NSWSC 592 Hearing dates: 13 May 2019 Date of orders: 13 May 2019 Decision date: 13 May 2019 Jurisdiction: Equity Before: Emmett AJA Decision: 1. The amended summons for declaratory relief dated 12 June 2018 is dismissed.

2. The plaintiff to pay the second defendant's costs of the proceedings. Catchwords: ADMINISTRATIVE LAW – statutory interpretation Guardianship Act 1987 (NSW) – whether s 25N has the effect that if the Tribunal does not begin a required review within the specified time the financial management order would cease to have effect – whether the Tribunal discharged the duty imposed upon it by s 25N(3) to begin the review within the time specified in the order

ADMINISTRATIVE LAW – whether s 25N(6) of the Guardianship Act 1987 (NSW) was complied with – whether the Tribunal failed to cause a notice specifying the details of the review to be served on each party to the proceedings Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Category: Principal judgment Parties: Joy Misrachi (Plaintiff) NSW Civil and Administrative Tribunal (First Defendant) Attorney General of New South Wales (Second Defendant) File Number(s): 2018/60506

EX TEMPORE Judgment 1. HIS HONOUR: These proceedings are concerned with a financial management order made on 23 October 2015 (the 2015 Order) by New South Wales Civil and Administration Tribunal (the Tribunal) in respect of Mrs Malca Misrachi (the Mother). By amended summons filed on 12 June 2018, the plaintiff, Ms Joy Misrachi, seeks a declaration that the 2015 Order has not been effective or valid since the date by which the 2015 Order should have been reviewed, and that any action by the New South Wales Trustee and Guardian (the Public Guardian), since that date in pursuance of the 2015 Order was unlawful. She also seeks an order that proceedings in the Tribunal in which the 2015 Order was made are null and void, or alternatively an order that the proceedings be stayed. I have concluded that the prayers for relief in the amended summons should be refused for the reasons that follow. 2. The plaintiff is the daughter of the Mother, who is 90 years old and suffers from a number of disabling medical conditions. The Mother currently resides at a nursing home. In August 2014, Dr Avner Misrachi, a son of the Mother, commenced proceedings No 9455 of 2014 in the Tribunal seeking a guardianship order. Those proceedings resulted in the removal of the plaintiff and the appointment of the Public Guardian as the Mother's guardian on 24 October 2014 (the 2014 Order). Dr Misrachi also applied to the Tribunal for the appointment of a financial manager in respect of his mother's estate. On 17 February 2015 the Tribunal dismissed that application. The Tribunal found that there was no basis to interfere with the Mother's freedom of action and decision by the appointment of a financial manager. 3. On 15 October 2015 a further application was made by Dr Misrachi for the making of a financial management order. On 23 October 2015 the Tribunal convened the hearing of an application for the review of the 2014 Order, an application for the review of an enduring power of attorney in favour of the plaintiff, and the hearing of the application for a financial management order. 4. Relevantly for present purposes, at the hearing on 23 October 2015, the Tribunal made the 2015 Order, committing the financial management of the Mother to the Public Guardian. The Tribunal observed that it had power to determine that a financial management order should be reviewed within a specified time (in this instance being within two months, to a date set by the Registrar), and decided that the 2015 Order should be reviewed at the same time as the other adjourned matters were to be heard. The Tribunal observed that it might be possible to revoke the order at that time, if it were to take a different view of the Mother's capability to manage her own affairs, or of the question of her need for an order. The Tribunal expressed the hope that it would at that time have substantially more evidence before it to assist with its decision. 5. The plaintiff participated in the proceedings on 23 October 2015 by telephone. In the Tribunal's reasons for decision of 20 March 2018, it was stated that on 3 December 2015 a notice of the hearing of 10 December 2015 was sent to the parties, including the plaintiff, although there was no evidence as to the terms of that notice. In this court the plaintiff gave evidence that she had no recollection of receiving the notice, although she indicated that her solicitor may have received some papers, the details of which she was not aware. 6. On 10 December 2015 the Tribunal commenced hearing of the various applications that had been adjourned from 23 October 2015. The Tribunal gave directions on that day, including an order adjourning the review of the 2015 Order. In the course of its reasons for giving those directions, the Tribunal observed that it had made the 2015 Order and that it was to be reviewed within two months. The Tribunal noted that the matters before it on 10 December 2015 included the review of the 2015 Order, as well as the review of the 2014 Order, a review of the enduring power of attorney, and a review of the plaintiff's enduring guardianship of the Mother. The Tribunal observed that the failure by the parties, primarily the plaintiff, to comply with directions about the date for filing and serving evidence caused considerable delay in the hearing on 10 December 2015. The Tribunal complained that it had to go through every late document received and confirm that all parties had a copy of the document. Many of the documents had not been received by other parties, and it took valuable time to sort those documents and provide a copy to the other parties. 7. The Tribunal said that, since there was some objection to the late evidence being taken into account, it asked those who had not been served with the documents to consider the contents, and invited any application for an exclusion order if there was evidence of prejudice caused to a party because of the delay. At that stage it became apparent that there would be insufficient time to deal with all of the applications that were then listed. The Tribunal therefore decided to proceed to deal with the review of the 2014 Order. 8. At the end of the time available the Tribunal adjourned, part-heard, the hearing of the review of the 2014 Order for approximately three months. The Tribunal also adjourned the hearing of the application to review the enduring power of attorney for the same period, and adjourned the hearing of the application to review the appointment of an enduring guardian for the same period. Finally, the Tribunal adjourned the hearing of the review of 2015 Order for the same period. 9. The Tribunal discussed with the solicitor for the plaintiff the application under s 64(1)(d) of the Civil and Administrative Tribunal Act that was before the Tribunal and the need for the Mother's accommodation fees to be paid, as the nursing home where the Mother resided still had not been paid any fees. The plaintiff's solicitor agreed that documents contained in a particular envelope could be sent to the Public Guardian, so that the information contained in the documents could be used to access the Mother's funds. The solicitor requested that the information not be communicated or distributed to the other parties until the determination of the applications. The Tribunal made that direction with the consent of the parties. 10. The Tribunal was also asked to remind all present at the 10 December 2015 hearing that the 2014 Order and the 2015 Order both remained in place. The Tribunal confirmed that those orders remained in place during the adjournment and until any decision of the Tribunal to the contrary. There is no evidence that any complaint was made by the plaintiff at that stage. 11. The thrust of the complaint made by the plaintiff in her amended summons is based on the wording of the Guardianship Act 1987 (NSW) (the Guardianship Act) and in particular Pt 3A. Part 3A, which consists of ss 25D to 25U, deals with financial management. Section 25E(1) relevantly provides that the Tribunal may order that the estate of a person be subject to management under the NSW Trustee and Guardian Act 2009 (NSW). Section 25G relevantly provides that the Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied, first, that the person is not capable of managing those affairs, secondly, that there is a need for another person to manage those affairs on the person's behalf, and thirdly, that it is in the person's best interests that the order be made. 12. Section 25H relevantly provides that despite section 25G, the Tribunal may make a financial management order for a specified period not exceeding six months, pending the Tribunal's further consideration of the capability of the person to whom the order relates to manage his or her own affairs. Such an order is defined as an interim financial management order. Under s 25D, financial management order means an order referred to in s 25E and also includes an interim financial management order. Under s 25M, if the Tribunal makes a financial management order in respect of the estate of a person, the Tribunal may appoint a suitable person as manager of that estate or commit the management of that estate to the Public Guardian. 13. Division 2 of Pt 3A is of particular significance and consists of ss 25N to 25R. Section 25N relevantly provides that the Tribunal may order that a financial management order be reviewed within a specified time. The requirement for a review may be contained in the financial management order or in a subsequent order. Under s 25N(3), the Tribunal must begin any required review within the time specified in the relevant order. Section 25N(4) relevantly provides that the Tribunal must, on an application under s 25R for revocation or variation of the order, review a financial management order. Section 25R relevantly provides that certain persons are, entitled to apply for an order revoking or varying a financial management order. Those persons include the protected person, the Public Guardian, the manager of the estate (or part of the estate) of the protected person, or any other person who in the opinion of the Tribunal has a genuine concern for the welfare of the protected person. 14. Section 25N(5) then provides that, if a financial management order would cease to have effect before the completion of "such a review", the order is taken to be extended until the completion of the review. Under s 25N(6), before "carrying out the review", the Tribunal must cause a notice specifying the date on which, and the time and place at which, the Tribunal will carry out the review to be served on each party to the proceedings. The review is taken to have commenced on the issue of such a notice. 15. Section 25N(7) provides that a failure to serve notice in accordance with s 25N does not vitiate the decision of the Tribunal on the review. Significantly, s 25N(6) does not provide that the review does not commence until the issue of such a notice. That is to say, the review will be taken to have commenced once a notice is issued, but it does not follow that a review could not commence before such notice is given. The evidence is clear that the Tribunal convened on 10 December 2015 for the purposes of reviewing the 2015 Order. Because of the failure by the plaintiff to comply with the Tribunal's directions, it was not possible to proceed very far with the review at that time. 16. The essence of the contention advanced on behalf of the plaintiff is that the review of the 2015 Order did not commence within the period of two months specified on 25 October 2015 and therefore the 2015 Order ceased to have effect. The substance of the contention appears to be based on s 25N(5). 17. However there is nothing in the Guardianship Act that specifies that a financial management order made under s 25E will cease to have effect at a time other than the time specified in its terms. For example, under s 25H, a financial management order may be made for a specified period of time pending the Tribunal's further consideration of the matter specified in that section. However there is nothing elsewhere in the Guardianship Act that suggests that, if the Tribunal makes an order under s 25E that the estate of a person be subject to management under the Guardianship Act, the order would cease to have effect within a particular time simply because of a requirement for a review. 18. The very purpose of the review is to determine whether the order should cease to have effect. While s 25N imposes upon the Tribunal a duty to begin a required review within the time specified in the relevant order, it does not, in express terms, have the effect that if the Tribunal does not begin a required review within the specified time, the financial management order would cease to have effect. I do not consider that such an effect is to be implied. 19. The plaintiff's contentions gain no support from s 25N(5), which does not itself provide for a financial management order to cease to have effect. Rather, it assumes that a financial management order would cease to have effect by the operation of some other provision such as, for example, s 25H or an order made under s 25R for the revocation of a financial management order. Thus, the language of s 25N(5) refers to the completion "of such a review". As a matter of construction, that appears to be a reference to the review contemplated by s 25N(4), whereby the Tribunal must, on an application under s 25R for revocation or variation of an order, review the order. Under s 25N(4) the Tribunal may do so at any time on its own motion. It is clear enough, therefore, that, when s 25N(6) refers to carrying out "the review", it is referring is to a review under s 25N(4) and not a review that the Tribunal is required to begin under s 25N(3). 20. In any event, I am not persuaded that s 25N(6) was not complied with. That is to say, I am not satisfied that it is more likely than not that the Tribunal failed to cause a notice specifying the date on which, and the time and place at which, the Tribunal would carry out the review, to be served on each party to the proceedings. 21. The plaintiff drew attention to the objects stated in s 3 of the Civil and Administrative Tribunal Act 2013 (NSW), under which the Tribunal is established. Section 3(d) states that one of the objects of the Tribunal is to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible. The plaintiff asserts that the delay in reviewing the 2015 Order is inconsistent with that object. It is perhaps unfortunate that the review that was directed on 23 October 2015 was not in fact completed until 20 March 2018. However, it is apparent that, at least in some not inconsequential measure, the delay should be laid at the feet of the plaintiff. Be that as it may, I do not consider that any delay had the consequence that the 2015 Order ceased to have effect at the expiration of two months after it was made. 22. I am satisfied that the review of the 2015 Order commenced on 10 December 2015. Accordingly, it follows that the Tribunal discharged the duty imposed upon it by s 25N(3) to begin the required review within the time specified in the 2015 Order. The plaintiff has not made out a case for the grant of any of the relief claimed in the amended summons. The amended summons should be dismissed. The plaintiff should pay the second defendant's costs of the proceedings.