Misrachi v The Public Guardian

1. [1]

   THE COURT: Leave to appeal is sought from the decision of Kunc J delivered on 21 December 2018 (Sarah v The Public Guardian [2018] NSWSC 2005) in which his Honour dismissed with costs a notice of motion that had been filed in court on 14 December 2018 and came before his Honour, as duty judge, on 21 December 2018.

2. [2]

   The notice of motion was filed in Proceedings 229457 of 2016 which comprise an appeal pursuant to cl 14 of Sch 6 to the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) from orders made by the New South Wales Civil and Administrative Tribunal (NCAT) on 14 April 2016. Those orders included the revocation of the applicant’s appointment as her mother’s enduring guardian, continuing guardianship orders for a period of 3 years and the appointment of the Public Guardian as the guardian of the mother (the NCAT decision). On 23 October 2015, the Guardianship Division of NCAT had made a financial management order appointing the NSW Trustee as financial manager of the mother.

3. [3]

   The appeal to this court has had a procedurally difficult history as noted by McDougall J in Misrachi v Public Trustee [2017] NSWSC 1815, but has been set down for hearing, together with challenges to the earlier financial management order, on 14 and 15 May 2019.

4. [4]

   Additionally, as three years was the maximum period for which an initial enduring guardianship order could be ordered under s 18(1)(a) of the Guardianship Act 1987 (NSW), NCAT is, by reason of s 25(2)(b) of that Act, required to review the enduring guardianship order at the expiration of the period for which it has effect. Given that the order was made on 14 April 2016, the statutory review obligation will arise in less than a week.

Pseudonym Order

1. [5]

   As noted in [1] above, the proceedings before the primary judge were styled “Sarah v The Public Guardian”. Sarah is a pseudonym for the applicant who was previously the guardian of her mother (the mother) who, at the time of the hearing before the primary judge, was 90 years old.

2. [6]

   The primary judge considered that the use of this pseudonym was appropriate in circumstances where the absence of a pseudonym may have revealed the identity of the mother, her circumstances and those of anyone else involved in the proceedings: see [2018] NSWSC 2005 at [42]-[44]. This order appears to have been made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Court Suppression Act).

3. [7]

   Mr Higgins, who appeared for the Public Guardian, made an application for a similar pseudonym order to be made when the summons for leave to appeal was called on for hearing. That application was opposed. Mr Higgins put the application on the basis of s 8(1)(e) of the Court Suppression Act which provides that a court may make a suppression order or non-publication order where “it is otherwise necessary in the public interest for the order to be made and that the public interest significantly outweighs the public interest in open justice.”

4. [8]

   Mr Higgins drew attention to the fact, apparently based upon cross-examination of the applicant in the course of the hearing before the primary judge, that it was the applicant’s intention to give publicity to the proceedings, and submitted that this may cause distress to the mother in her current circumstances. His submission was that:

5. [9]

   No evidence was pointed to or relied upon to support the claim that media attention may cause stress to the mother or to provide any basis for assessing the likelihood or seriousness of that consequence.

6. [10]

   In our opinion, no pseudonym order should be made concealing the identity of the applicant. The fact that a party may wish to give publicity to proceedings is scarcely a novelty and certainly not a reason to mask the identity of a party to proceedings through the employment of a pseudonym. This is not to say that pseudonym orders may not be appropriate in the guardianship context; it is not difficult to imagine circumstances where they may be extremely appropriate but the importance of open justice and the dictates of s 8(1) of the Court Suppression Act require both a cogent and non-speculative basis, supported by evidence, for such an order.

7. [11]

   Any number of decisions of the High Court and of this Court have stressed the importance of open justice, both at general law and in the context of the Court Suppression Act: see Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [20]; John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 at [18], [21] and [99]. Indeed the value and importance of open justice is underpinned by the legislative requirement in s 8(1)(e) of the Court Suppression Act that any order be “necessary” – a concept that transcends that which is “convenient, reasonable or sensible”: Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [31] – and the requirement that the competing interest must “significantly” outweigh the public interest in open justice.

8. [12]

   In Ashton v Pratt [2011] NSWSC 1092, Brereton J, as he then was, explained that the legislative intention of the Act was to minimise the circumstances in which such orders would be made, and to emphasise the principle of open justice: [8].

9. [13]

   There is a sharp contrast between the relatively onerous requirements of s 8 of the Court Suppression Act in relation to court proceedings and s 64(1) of the NCAT Act which provides:

10. [14]

    In the particular context of guardianship, we note that s 65 of the NCAT Act provides, under the heading “Publication of names or identification of persons involved in certain proceedings”, that:

11. [15]

    A similar formulation to s 65(2) appears in s 162 of the Mental Health Act 2007 (NSW) which was considered by Adamson J in Attorney General of New South Wales v Huckstadt (No 2) [2017] NSWSC 595 (Huckstadt (No 2)) who said at para [60]:

12. [16]

    Whilst not applying to appeals from NCAT decisions such as that brought by the current applicant and pending in this court (see para [3] above), s 65 of the NCAT Act evinces a legislative sensitivity to the publication or broadcasting of the identity of persons involved in guardianship matters, including the name of any person to whom the proceedings relate.

13. [17]

    The salient points to be noted for present purposes are, first, that an order made in guardianship proceedings in NCAT suppressing the name of a person or persons to whom those proceedings relate pursuant to s 64 of the NCAT Act will not automatically be carried through to appeals from such proceedings in this Court and will be more difficult to obtain pursuant to s 8 of the Court Suppression Act than under the NCAT Act, and, secondly, that the statutory prohibition on third party publication contained in s 65 of the NCAT Act does not apply to guardianship proceeding in the Supreme Court. Whether or not that difference in approach was deliberate, as Adamson J considered in Huckstadt (No 2), or inadvertent may be open to question but it is a difference that may lead to different regimes applying to guardianship proceedings in NCAT and this Court.

Procedural Background

1. [18]

   We return to the background to the current application for leave to appeal.

2. [19]

   On 29 August 2016, Lindsay J ordered that, subject to further order:

3. [20]

   The effect of these orders was to remove the “stay” that would otherwise have effect under cl 14(5) of Sch 6 of the NCAT Act, and Lindsay J’s orders of 29 August 2016 contained a specific notation to this effect. No application for leave to appeal was made from this decision although on 15 December 2017, the applicant sought a stay of NCAT’s 16 April 2016 orders by notice of motion in the Supreme Court. That application was dismissed by McDougall J on 15 December 2017 ([2017] NSWSC 1815). In his judgment, at [19], his Honour said:

4. [21]

   The notice of motion before the primary judge, filed almost a year to the day after the filing and dismissal of the notice of motion before McDougall J, sought the following relief:

5. [22]

   It will be apparent that the reference to 31 May 2016 in prayers 1 to 4 of the notice of motion should be a reference to 14 April 2016. According to written submissions filed on behalf of the Public Guardian, 31 May 2016 was the date on which NCAT published its reasons for decision.

6. [23]

   Prayers 1 to 4 of the notice of motion effectively amounted to a challenge to the orders made by Lindsay J of 29 August 2016 which have already been referred to and prayer 5 of the notice of motion was consequential upon the earlier prayers for relief.

The primary judge’s decision

1. [24]

   The essence of the primary judge’s reasoning was set out in paras [33]-[41] of the reasons for judgment as follows:

2. [25]

   The point to which the primary judge adverted at [34] related to the fact that, as has already been observed, the notice of motion in effect sought a variation of the orders that had been made by Lindsay J on 29 August 2016. It had been put by Mr Higgins on behalf of the Public Guardian that, consistent with well-established principles, no occasion for a variation of these interlocutory orders could arise in the absence of evidence of a material change in circumstances in the period since the original orders were made: see Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46 (McLelland J). See also Serobian v Commonwealth Bank of Australia [2009] NSWCA 309 at [22] (Campbell JA); Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313 at [38] (Mason P); Laurence v Gunner (No 3) [2016] NSWCA 18 at [15] (Gleeson JA). Mr Higgins had submitted that there were no such changed circumstances.

Application for leave to appeal

1. [26]

   In support of the summons for leave to appeal, the applicant has filed a draft notice of appeal containing no less than 28 proposed grounds of appeal.

2. [27]

   The first ground of appeal is to the effect that the primary judge erred in not identifying and acknowledging that “the Public Guardian is responsible for and has caused elder abuse to” the mother. That is a most serious allegation that is not, in our opinion, properly ventilated in the context of an unparticularised notice of motion filed in appeal proceedings, and on the last day of the court term. It is not at all clear that his Honour was asked to make such a finding and no submission seeking a finding that the Public Guardian had “caused elder abuse” is recorded in his Honour’s judgment. In any event, his Honour’s carefully expressed factual findings are wholly inconsistent with such a claim.

3. [28]

   The vast majority of the remaining grounds of appeal involve direct challenges to findings of fact by the primary judge. Some (for example, grounds 3, 8 and 11) are expressed in terms of the “weight” the primary judge did or did not give to certain matters. Others, such as grounds 24, 25 and 26, recognise that the primary judge was being called upon to exercise a discretion.

4. [29]

   Leave applications in this Court attract a general obligation on the applicant for leave to establish that there is an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; BE Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[38]; Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].

5. [30]

   In addition, where the decision from which leave to appeal is sought involves the exercise of a discretion, there are strictures against over-ready appellate interference with a correlative need for added restraint, particularly in an interlocutory context: see PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [5].

6. [31]

   The bare traverse of factual findings made in the context of the exercise of a discretion will not attract the grant of leave to appeal absent the demonstration of some error of principle or clear injustice. The Summary of Argument provided for by the rules of court and which is required to be filed in support of an application for leave to appeal provides the principal opportunity for an applicant to articulate any error of principle relied upon or clear injustice said to have been occasioned by the decision which is the subject of the leave application. Repetitive assertions that factual findings were wrong or that the primary judge erred in making certain findings neither identify nor establish error of principle or clear injustice.

Disposition

1. [32]

   The applicant’s written summary of argument did not isolate any error of principle in the primary judge’s reasoning nor come close to demonstrating that any exercise of discretion miscarried at all, let alone in a way that would authorise appellate interference in an interlocutory discretionary decision. The decision of the primary judge in our opinion involved a clear and sensitive review of the matters in issue and disclosed a most careful consideration of the evidence before him.

2. [33]

   Nor is there any foundation, in our opinion, for the criticism advanced in oral submissions on behalf of the applicant that the primary judge did not have regard to the observational evidence of the applicant as to her mother’s condition. That was expressly referred to by his Honour who, at [16] and [17] of his judgment, said:

3. [34]

   The primary judge had regard also to medical reports of the mother’s general practitioner, dermatologist, clinical notes as well as to certain evidence of the applicant’s brother, who was a medical practitioner. His Honour’s judgment was, in the particular circumstances of the case, impressively thorough.

4. [35]

   Nor does any question of public importance arise on the application for leave to appeal. As the primary judge’s decision made plain, underpinning this application is a quintessentially private grievance of a daughter with, as some of the draft grounds of appeal disclose, strongly felt views as to the role played by at least one of her brothers (who was or had been a medical practitioner) in the context of the guardianship arrangements relating to her mother. This aspect of her complaint was also advanced orally in a submission to the effect that the brother had, in effect and improperly, “treated” his mother by giving evidence as to her condition before the primary judge. That submission was ill-founded, as was the allied submission that the primary judge was wrong, in para [36] of his reasons extracted above, to prefer the evidence of the brother over that of the applicant. Not only was it open to his Honour to do so, but that aspect of his decision needs to be read in the context of para [35] of his reasons where the primary judge placed particular emphasis on independent evidence in light of the conflict between the evidence of the applicant and her brother. That independent evidence amply supported his Honour’s findings of fact.

5. [36]

   In circumstances where not only is the hearing of the appeal in the Supreme Court from NCAT’s decision of 14 April 2016 imminent but also where the original orders of NCAT are due for review in less than a week (see para [4] above), no injustice would be caused by the refusal of leave to appeal even if a case for the grant of leave were otherwise made out (which it has not been). The applicant will have ample opportunity to raise grounds of appeal from the NCAT decision in her appeal next month, and will have an even earlier opportunity to raise any matters of pressing concern on the statutory review of those orders by NCAT which is due next week.

6. [37]

   The applicant’s solicitor submitted that the mere fact that the review was due next week did not mean that it would be completed next week. Whether or not that is so, the Guardianship Division of NCAT is capable of moving with expedition in an appropriate case. It should also be observed in this context that no urgency attached to the filing of the summons for leave to appeal. The primary judge’s decision was delivered on 21 December 2018 and more than 3 months elapsed before the summons seeking leave to appeal was filed on 25 March 2019.

7. [38]

   Technically, as counsel for the Public Guardian pointed out, the application for leave is slightly out of time and he makes the submission that no explanation for the slight delay has been forthcoming. That is so and it would ordinarily be necessary for an applicant to provide such an explanation or, to quote McHugh J in Gallo v Dawson [1990] HCA 30; 64 ALJR 458 at 459;, to point to material that would satisfy the court that “to refuse the application [to extend time] would constitute an injustice”. In circumstances where this application has been brought on urgently (although, as we have observed above, no urgency attached to its filing) and where the Public Guardian points to no prejudice, we have preferred to deal with the matter on a non-technical basis.

8. [39]

   In addition to the reasons already given, we would point out that, although it was not necessary for the primary judge to engage with the submission advanced on behalf of the Public Guardian, namely that the orders sought in the notice of motion effectively were for a variation of the interlocutory orders of Lindsay J, no material change in circumstances since the time those orders were originally made was evidently pointed to in order to support such a variation (see para [25] above).

9. [40]

   Although the primary judge did not decide the matter on this basis, it would, in our opinion, have been open to him to do so in light of the findings of fact he made for the purposes of disposing of the motion. This would have provided a second and independent ground for the refusal of the relief sought in the notice of motion. It also provides another reason why leave to appeal should be refused.

Orders

1. [41]

   In our opinion, leave to appeal should be refused.

2. [42]

   The applicant should be ordered to pay the Public Guardian’s costs for essentially the same reasons given by the primary judge in relation to the proceedings before him. In paras [46]-[47] of his judgment, the primary judge said:

3. [43]

   To these reasons we would add the fact that, notwithstanding what the court accepts as the genuine motivation of the applicant in moving for relief, the imminence of both NCAT’s statutory review of the enduring guardianship order and the appeal in the Supreme Court from NCAT’s decision made this application distinctly unmeritorious. To this observation could be added reference to the fact that the application before the primary judge to which this application for leave to appeal relates was, it would seem, essentially a re-run of the unsuccessful application that had been made a year before to McDougall J.

4. [44]

   Accordingly, the orders of the court are:

   1. (1)

      Leave to appeal refused; and

   2. (2)

      The applicant to pay the respondent’s costs.