Tanious v The Public Guardian

Judgment 1MEAGHER JA: I agree for the reasons given by Acting Justice Tobias that Mr Tanious's motion should be dismissed. 2SACKVILLE AJA: I agree with the orders proposed by Acting Justice Tobias and with his Honour's reasons. I add only this observation. As Justice Tobias has pointed out, the orders made by the Guardianship Tribunal on 10 May 2012 appointed Father Fanous to be the guardian of Mr Moza. It is Father Fanous who now has responsibility of determining where Mr Moza should reside. The Public Guardian no longer has a role to play. Mr Tanious has not challenged the orders made by the Tribunal on 10 May 2012. 3In these circumstances it is difficult to see the point of the present application which is directed ultimately to the correctness of an order relating to Mr Moza's place of residence made by the Tribunal on 10 February 2011. The orders made at that time have been superseded by the later orders made by the Tribunal 4TOBIAS AJA: Mr Lawis Moza is the father of Mr Mofeed Tanious. The former is now 91 years of age. On 12 January 2011, the Guardianship Tribunal (the Tribunal) made a guardianship order pursuant to the Guardianship Act 1987 (NSW) by which it appointed the Public Guardian as Mr Moza's guardian for a period of 12 months. The order giving guardian custody of Mr Moza to the Public Guardian was relevantly limited to deciding where Mr Moza may reside. On 10 February 2011, the Public Guardian made a decision that Mr Moza should reside with his daughter for a trial period of one month, a decision which the Public Guardian made permanent on 1 April 2011. On 7 April 2011 the Tribunal refused an application by Mr Tanious to review its decision of 12 January 2011. 5On 21 February 2011, Mr Tanious applied to the Administrative Decisions Tribunal (the ADT) for a review of the Public Guardian's decision of 10 February 2011. On 18 July 2011, the ADT determined to affirm that decision as well as that made on 1 April 2011. Mr Tanious then appealed that decision to the Appeal Panel of the ADT. On 2 February 2012, the Appeal Panel dismissed Mr Tanious's appeal on the basis that the decision of the ADT did not disclose any error of law, this being the only ground upon which Mr Tanious could challenge the ADT's decision. 6On 15 February 2012, Mr Tanious filed a Notice of Appeal to this Court challenging the decision of the Appeal Panel. On 27 February 2012, he filed a Notice of Motion in the present proceedings which was dismissed by Macfarlan JA on 16 March 2012 on the basis that it only raised matters unrelated to Mr Tanious's appeal against the decision of the Appeal Panel: Tanious v Hunt [2012] NSWCA 51. Mr Tanious did not seek a review of that decision. 7On 11 April 2012, the Public Guardian filed a Notice of Motion seeking to have Mr Tanious's appeal to this Court filed on 15 February 2012 struck out. On 28 May 2012, Macfarlan JA acceded to that application, dismissing Mr Tanious's appeal with costs: Tanious v Public Guardian [2012] NSWCA 165. 8On 12 June 2012, Mr Tanious filed a Notice of Motion seeking a review of the decision of Macfarlan JA of 28 May 2012. That application is brought pursuant to s 46(4) of the Supreme Court Act 1970 (NSW). Such an application is not an appeal: s 19(2) of the Supreme Court Act. (See also Uniform Civil Procedure Rules 2005, r 51.2). 9In support of the present application, Mr Tanious has filed and read three affidavits sworn 12 June 2012; 13 August 2012 and 20 August 2012. On 6 July 2012, he filed a written submission in support of the present application. It is generally repetitive of what he swore in his affidavits. 10In his judgment under challenge, Macfarlan JA (at [2]) noted that Mr Tanious's appeal against the decision of the Appeal Panel of 2 February 2012 was brought pursuant to s 119 of the Administrative Decisions Tribunal Act 1997 which permits an appeal only "on a question of law". At [3] his Honour then set out the grounds of appeal upon which Mr Tanious relied. At [4] he accepted a submission on behalf of the Public Guardian that none of the grounds of appeal identified any question of law arising out of the decision of the Appeal Panel and which, if answered favourably to Mr Tanious, might lead to that decision being set aside. 11As his Honour noted at [5], many of the grounds of appeal, as well as much of what was submitted by Mr Tanious in response to the Public Guardian's Notice of Motion to strike out his appeal, related not to the decision of the ADT but to the appropriateness of the guardianship order made by the Tribunal on 12 January 2011, the conduct of the Public Guardian in giving effect to that order by the decisions of 10 February 2011 and 1 April 2011 (and which placed Mr Moza in the care of his daughter) as well as upon the alleged necessity for a psychiatric assessment of Mr Moza. As none of the grounds of appeal disclosed any arguable question of law, it followed that the appeal should be dismissed pursuant to UCPR r 13.4(1). That rule, which applies to this Court pursuant to UCPR r 51.1(3), empowers the Court to order that proceedings be dismissed where they are frivolous or vexatious, fail to disclose any reasonable cause of action or are an abuse of the process of the court. Relevantly in the present case, Mr Tanious's appeal was effectively held by the primary judge not to disclose any reasonable cause of action in that it did not disclose in the grounds of appeal any relevant error of law on the part of the Appeal Panel. 12The thrust of the affidavits relied upon by Mr Tanious in support of his challenge to the decision of the primary judge is that there was a failure, presumably by the Appeal Panel, to deal with what Mr Tanious alleged to be negligence on the part of the delegate of the Public Guardian when making the decision to place Mr Moza in the care of his daughter rather than in the care of Mr Tanious. In this respect, so it was alleged, the Public Guardian failed to give primacy to the best interest of Mr Moza as required by s 4 of the Guardianship Act. Particular complaint was also made with respect to the failure of the Public Guardian's delegate to have Mr Moza psychiatrically examined by an Arabic speaking psychiatrist of Mr Tanious's choice. The gravamen of Mr Tanious's complaint is to be found in paragraph 8 of his written submissions filed on 6 July 2012 in support of the present Notice of Motion. In that paragraph it is alleged that: [T]he Public Guardian has neglected to follow principals [sic] of Guardianship Act 1987 in selecting the best interest for my father concerning his accommodation and health care. The mentioned negligence has made a lot of mental, psychological, physical and financial burden upon me and my father as well. 13In oral argument Mr Tanious repeated what he had essentially said in his affidavits. In truth, his complaint against the Public Guardian relates to the delegate's conduct with respect to the guardianship of Mr Moza. In particular, Mr Tanious's wishes to call witnesses to prove that the delegate did not observe the requirement of s 4(a) of the Guardianship Act which requires paramount consideration to be given to the welfare and interests of Mr Moza whilst he was under the Public Guardian's guardianship. He also wishes to claim compensation from the Public Guardian. None of these matters are relevant to the issue raised by Mr Tanious's appeal from the decision of the Appeal Panel. 14Whether or not the Public Guardian's delegate was or was not negligent in giving effect to the order of the Tribunal of 12 January 2011 is thus beside the point. Whatever the merits, if any, of that allegation, it has no part to play in a challenge to the decision of the Appeal Panel which is confined to questions of law. If the ADT in its decision of 18 July 2011 made errors of fact, and I am not for one moment suggesting that it did, then those errors would be of no assistance to Mr Tanious either before the Appeal Panel (whose decision was also confined to questions of law arising out of the reasons of the ADT) or in this Court which is also concerned only with whether the Appeal Panel made any errors of law. 15As I have indicated, the present application of Mr Tanious pursuant to s 46(4) of the Supreme Court Act to review the decision of Macfarlan JA is not an appeal. As was observed by Bathurst CJ, with whom McColl JA agreed, in Rinehart v Welker [2011] NSWCA 403 at [48], a heavy burden rests upon a party seeking a s 46(4) review to justify the discharge of an order of a single judge of this Court. In order to succeed, the applicant must demonstrate that the Judge erred in principle or that his decision was plainly wrong. In my view, not only has Mr Tanious failed to discharge that burden but his Honour's decision was plainly right. 16In any event, the correctness or otherwise of the guardianship order made by the Tribunal on 12 January 2011 is now somewhat academic. On 10 May 2012, the Tribunal reviewed the order that it had made on that date. It renewed the guardianship order for Mr Moza but varied it by continuing the order for a further period of only 12 months and by appointing Mr Moza's priest, Mr Yousef Fanous, as his guardian in lieu of the Public Guardian. The Tribunal's order limited Mr Fanous's functions to determining where Mr Moza may reside, determining what health care he may receive and to substitute decisions about proposed minor or major medical or dental treatment where Mr Moza was incapable of giving valid consent. It is apparent from the material filed by Mr Tanious that he has no complaint with respect to the order made by the Tribunal on 10 May 2012 and he confirmed that that was so in oral argument this morning. It follows that at least for the time being the Public Guardian is out of the picture. 17To summarise, in my view Mr Tanious has failed to discharge the burden of establishing that the decision of Macfarlan JA of 28 May 2012 dismissing his appeal against the decision of the Appeal Panel of 2 February 2012 was plainly wrong. On the contrary, as I have already observed, it was plainly right. 18I would therefore propose that the notice of motion filed by Mr Tanious on 12 June 2012 be dismissed. As the Public Guardian does not seek costs of the present application there should be no order as to the costs of the motion. 19MEAGHER JA: Accordingly the orders of the Court are as proposed by Acting Justice Tobias, that is, the motion be dismissed, no order as to costs.