Awad v St Vincent’s Hospital Sydney Ltd
[2024] NSWSC 59
•13 December 2023
Supreme Court
New South Wales
Medium Neutral Citation: Awad v St Vincent’s Hospital Sydney Ltd [2024] NSWSC 59 Hearing dates: 12 December 2023; 13 December 2023 Date of orders: 13 December 2023 Decision date: 13 December 2023 Jurisdiction: Common Law Before: Garling J Decision: Order that any stay that may have arisen under clause 14(5) of schedule 6 of the Civil and Administrative Tribunal Act 2013 cease to operate in relation to the orders made on 3 November 2023, up to 11.00am on 12 February 2024.
Catchwords: GUARDIANSHIP – Guardianship order – Public Guardian – Review of decisions – Appeal by son of protected person against a decision of the Guardianship Division of the NSW Civil and Administrative Tribunal appointing the Public Guardian as guardian of the protected person and appointing the NSW Trustee and Guardian for management of the protected person’s estate – Whether a stay of the Public Guardian’s appointment as guardian should be set aside to allow decisions about the accommodation and welfare of the protected person to be made.
Legislation Cited: Civil and Administrative Act 2013
Civil and Administrative Tribunal Act 2013
Legal Aid Commission Act 1979
New South Wales Trustee and Guardian Act 2009
Cases Cited: Not Applicable
Texts Cited: Not Applicable
Category: Procedural rulings Parties: Ragaie Awad (Self represented) (P)
St Vincent’s Hospital Sydney Ltd (D1)
NSW Public Guardian (D2)
NSW Trustee and Guardian (D3)
NSW Civil and Administrative Tribunal (D4)
Gaber Awad (D5)
Nahed Awad (D6)Representation: Counsel:
Solicitors:
Self-Represented (P)
Z Officer (D1)
Ms Bennett (D2)
J Gardner (D3)
Self-Represented (D6)
Holman Webb (D1)
Crown Solicitors (D2)
File Number(s): 2023/285314 Publication restriction: Not Applicable
JUDGMENT
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On 6 December 2023, the Public Guardian filed a Notice of Motion seeking an order which had the effect that a stay, which has come into existence with respect to the decision of the NSW Civil and Administrative Tribunal, cease to operate. As this is the duty list, I am only in a position dealing urgently with this matter to give brief reasons.
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On 25 July 2023, the plaintiff, Mr Ragaie Awad, filed a guardianship application and a financial management application with respect to his father, Mr Awad Snr, in the Guardianship Division of the New South Wales Civil and Administrative Tribunal (“NCAT”).
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On 4 August 2023, St Vincent's Hospital Sydney Ltd also filed with NCAT a different guardianship application and a different financial management application. Both applications were made with respect to the plaintiff's father, Mr Gaber Awad (“Mr Awad Snr").
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Mr Award Snr is a patient at St Vincent's Hospital, having submitted to surgery by way of amputation of part of his leg in July 2023. It was the hospital's view that after recovery from the acute consequences of his surgery, Mr Awad Snr, who is 93 years old (or perhaps 94) ought to be discharged from the hospital to an appropriate aged-care facility which was able to provide him with nursing care over a 24-hour period and on a seven-day-a-week basis.
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The plaintiff's sister, Ms Nahed Awad, who is a defendant in these proceedings, contended that his father should be cared for at home. At that time in August 2023, the plaintiff and his sister could not agree on where Mr Awad Snr should be cared for, how he should be cared for or who would be providing the care.
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On 31 August 2023, NCAT made a decision, which appointed the Public Guardian as the guardian of Mr Awad Snr, and gave it particular functions, namely, the accommodation function to decide where Mr Awad Snr may reside, the health care function to decide what health care he may receive, and the capacity to make decisions about various other treatments and services.
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NCAT did not at that stage make any financial management order and it limited the term of the guardianship to a period of eight weeks.
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The matter returned to NCAT on 3 November 2023. There, a three-member panel, which was differently constituted from the previous panel, made a further decision in which it ordered that the estate of Mr Awad Snr be subject to the management of the NSW Trustee and Guardian under the New South Wales Trustee and Guardian Act 2009 and that the Public Guardian be appointed as guardian for a period of 12 months, with functions similar to those which I have previously described.
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On each occasion NCAT gave detailed reasons for its findings and for the orders which it made.
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The plaintiff has appealed to this Court against the decision of NCAT.
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Any such appeal is subject to the provisions of Part 6 of Schedule 6 to the Civil and Administrative Tribunal Act 2013. An appeal to this Court brought under that part, is one, as of right, on any question of law or with the leave of the Court on any other grounds.
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This Court deals with such appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and it may, in particular circumstances, permit fresh evidence or evidence in addition to or substitution for the evidence received by NCAT but it is not obliged to do so.
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Inherent in determining the appeal, this Court may make such orders as it considers appropriate in light of a decision under appeal.
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Clause 14(5) of Part 6 of Schedule 6 provides that,
“Subject to any interlocutory order made by the Supreme Court, an appeal to the Supreme Court operates to stay the decision under appeal.”
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On 5 December 2023, at a time after the decision of NCAT had been made, and after an appeal had been lodged to this Court, at 10 o'clock at night the plaintiff, his sister and a third person were observed by hospital staff and captured by closed circuit television to be wheeling their father in a wheelchair out of St Vincent's Hospital to a car.
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At that time Mr Awad Snr had not been discharged from the hospital, and the doctors and staff of the hospital were of the opinion that if he was to be removed from hospital care he should be placed in a facility which could provide 24-hour care by way of nursing and other support care for him.
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Clearly, at this point in time, 5 December 2023, the plaintiff and his sister did not agree with that view. Fearing that an abduction was taking place, hospital staff informed police, who tracked Mr Awad Snr and returned him to the hospital where he remains.
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On 6 December, consequent upon that event, the Public Guardian brought a Notice of Motion, which I have been asked to determine urgently, to set aside the stay which operates by virtue of the legislation.
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It is clear that the substantive appeal is not ready to be heard.
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That is because, at least in part, neither the plaintiff nor the sixth defendant nor their father, who is joined as the fifth defendant, have legal representation. I am informed, and accept, that they have applied for Legal Aid, Legal Aid has been refused and an appeal has been lodged against that decision. Section 57 of the Legal Aid Commission Act 1979 has the effect, unless special circumstances are established, that this Court cannot hear and determine the proceedings until the appeal has been determined. However, in the circumstances of this case, I am satisfied that special circumstances exist which require this Court to address this Notice of Motion urgently.
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I am not determining the appeal but, in my view, the absence of lawyers at this hearing yesterday and today, which has been convened urgently for obvious reasons, has not acted to the disadvantage of either the plaintiff or the sixth defendant or Mr Awad Snr. Accordingly, I am proceeding to hear and determine this motion.
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It is unlikely that the appeal will be heard for at least three months or more. At the moment no-one is entitled to make a decision about the welfare of Mr Awad Snr. The Public Guardian's appointment as Guardian is stayed.
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As I have explained to the plaintiff and to his sister, in the absence of their father executing an Enduring Power of Attorney, including in it powers to make decisions with respect to health and accommodation and the like, there is simply no-one who can make a decision for the welfare of their father.
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The evidence before NCAT was clear that their father was not able to make proper decisions on his own behalf. That must be accepted because, of course, the plaintiff sought a guardianship order on the basis that his father was not able adequately to make decisions. He sought to be appointed as his guardian.
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It is simply intolerable in the circumstances of this case, where there is dispute about what is best for Mr Awad Snr, that he should be required to remain in an acute hospital, in a shared ward when he does not require acute hospital care. That is something upon which all parties before me are agreed. The issue is, where does he go? At the moment nothing can happen. He cannot make a decision, the Public Guardian is not in a position to make a decision because of the stay of NCAT’s decision, and nor, legally, can the plaintiff or the sixth defendant, his sister.
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In those circumstances it is overwhelmingly clear that, in the best interests of Mr Awad Snr, a person or a body needs to be an appointed to make decisions on his behalf.
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NCAT having had a hearing, declined to appoint the plaintiff as the guardian, but decided to appoint the Public Guardian. Two separate panels of the Guardianship Division of NCAT made those decisions separately and sequentially. The Public Guardian has statutory duties and obligations, and the Court is entitled to expect of that person exercising those functions that they do so properly and appropriately.
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In those circumstances, I am well persuaded that the proper exercise of my discretion is to make the order sought by the Public Guardian but, as I have indicated previously, in my view, that order should be for a limited period of time, which will enable the Public Guardian, the plaintiff and the sixth defendant to sit down and have a rational, sensible discussion about the best course for Mr Awad Snr’s care and accommodation.
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By reference to the notice of motion filed 6 December 2023, I note that pursuant to clause 14(1)(b) of the Civil and Administrative Act 2013, on 22 November 2023 the plaintiff filed an Amended Summons seeking to appeal, and seeking leave to appeal the decision of, and orders made, by the NSW Civil and Administrative Tribunal (Guardianship Division) on 31 August and 3 November 2023.
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I note that by filing the Amended Summons, a stay on the decision and orders made on 31 August 2023 and 3 November 2023 may have arisen pursuant to clause 14(5) of schedule 6 of the Civil and Administrative Tribunal Act 2013.
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I order that any stay that may have arisen under clause 14(5) of schedule 6 of the Civil and Administrative Tribunal Act 2013, cease to operate in relation to the orders made on 3 November 2023, up to 11.00am on 12 February 2024.
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I stand the proceedings over for directions before the Registrar at Common-Law to 9.00am on 12 February 2024. I grant the parties liberty to apply.
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Decision last updated: 06 February 2024
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