Awad v St Vincent’s Hospital Sydney Ltd (No.2)
[2024] NSWSC 60
•16 January 2024
Supreme Court
New South Wales
Medium Neutral Citation: Awad v St Vincent’s Hospital Sydney Ltd (No.2) [2024] NSWSC 60 Hearing dates: 15 January 2024, 16 January 2024 Date of orders: 16 January 2024 Decision date: 16 January 2024 Jurisdiction: Common Law Before: Garling J Decision: Notice of Motion filed 15 January 2024 dismissed.
Catchwords: GUARDIANSHIP – Guardianship order – Public Guardian – Review of decisions – Notion of Motion by son of protected person seeking the removal of a previous decision that lifted any stays on orders made by the NSW Civil and Administrative Tribunal – Whether there was an urgent need to make the orders sought by the plaintiff.
Legislation Cited: Civil and Administrative Tribunal Act 2013
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)
H Roberts (D2)
Self-Represented (D6)
Holman Webb (D1)
Crown Solicitors (D2)
File Number(s): 2023/285314 Publication restriction: Not Applicable
JUDGMENT
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On 13 December 2023, for the reasons which I delivered orally, and which are available at Awad v St Vincent’s Hospital Sydney Ltd [2024] NSWSC 59, I ordered that any stay that may have arisen pursuant to 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 by the New South Wales Civil and Administrative Tribunal (Guardianship Division) (“NCAT”) up to 11am on 12 February 2024.
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By Notice of Motion filed in Court on 15 January 2024, and heard in the vacation duty list on 16 January 2024, the plaintiff, Mr Ragaie Awad, sought the following order:
“Order that lift of stay order NCAT made on 12/12/23 be removed, and declare and state that NCAT's orders made on 31 August 2023 and 3 November 2023 are stayed. Since 15 January 2024, pursuant to clause 15 of schedule 6 of the NCAT Act, public trustees and guardians have no guardianship powers or functions over Mr Gaber Awad until the conclusion of the appeal."
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Consequential orders were sought.
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At the hearing of the Notice of Motion today it became apparent that the substance of the basis for the seeking of the orders is that, upon the application of the hospital, apparently supported by the Public Guardian, NCAT has listed a hearing tomorrow, at which hearing an application will be made for NCAT to grant the Public Guardian specific powers of a kind which would enable the Public Guardian to authorise the administration to Mr Awad Snr of sedative medication of a kind identified by the vascular surgery Registrar at St Vincent's Hospital, Sydney.
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Having heard all that has been said by the plaintiff, the following things have become apparent: First, that the application was first made by St Vincent's Hospital because it thought that it was appropriate to provide all possibly relevant powers to the Public Guardian before the Public Guardian made a decision as to the accommodation of Mr Awad Snr.
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Secondly, St Vincent's Hospital, the first defendant, does not take a strong view that the hearing tomorrow in front of NCAT should proceed, but is willing to discuss whether it should proceed or not with the Public Guardian.
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Thirdly, the Public Guardian, through its solicitor, Ms Roberts, has made plain to the Court that no decision has as yet been made as to where Mr Awad Senior will be accommodated upon discharge from St Vincent's Hospital.
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Ms Roberts has indicated that the Public Guardian is in possession of a proposal, from St Vincent's Hospital, that Mr Awad Snr be discharged to nursing home accommodation and is in possession of another proposal by the Awad family that Mr Awad be discharged to his home, with various care needs being addressed in the way a lengthy document has proposed. Ms Roberts has indicated that the Public Trustee has engaged with the family by seeking further details of the accommodation proposal, and discussing questions about whether any modifications will need to be made to the home, and if so, how those modifications would be paid for.
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The position, as it seems to me, is clear, namely that no decision has been made about the future accommodation of Mr Awad Snr.
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The concerns of the plaintiff are that, having regard to the age and health of Mr Awad Snr, that the administration of the sedative medication of the kind suggested in the St Vincent's Hospital proposal would be significantly adversely detrimental to his health, and that there is a real and present danger that he would not survive the administration of those drugs. I have no evidence of an expert kind which supports that fear. I nevertheless understand it, and I accept that it is a real fear of the family.
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Ms Roberts, for the Public Guardian, has obtained instructions on behalf of the Public Guardian that in the event that NCAT proceeds with a hearing tomorrow, on the allocation of additional powers to be used in the event that an accommodation decision is made, the Public Guardian will not make an accommodation decision for a period of at least 24 hours after the NCAT decision has been made.
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The plaintiff and the sixth defendant have made it plain that if NCAT was to hold a hearing and then make an order granting the Public Guardian additional powers of the kind which would permit the medication to be issued to their father, they would wish to lodge an appeal to this Court against such order, because they say any such order would be wrongly made.
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As is apparent from my decision of 13 December 2023, the provisions of clause 14(5) of Schedule 6 of the Civil and Administrative Tribunal Act have the effect that any decision of NCAT which is subject to an appeal to this Court is stayed pending the hearing and determination of the appeal or any other court order.
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The statement by Ms Roberts on behalf of the Public Guardian that no decision would be made for 24 hours on an accommodation option, means that sufficient time will have transpired for the plaintiff and/or the sixth defendant, should they be so advised, or if they so consider it, to lodge an appeal to this Court, thus engaging the statutory stay.
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In those circumstances, any urgency or concern which underlies the present Notice of Motion can be adequately dealt with in a timely way, without the need for any undue urgency.
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The Public Guardian is a statutory officer, with the powers granted under statute. In my view, I am entitled to rely upon statements made by the solicitor for the Public Guardian to this Court, and naturally I would expect that any such statements would be adhered to.
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In those circumstances, there is no urgent need to make the orders sought by the plaintiff, and the Notice of Motion filed 15 January 2024 is, for those reasons, dismissed.
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Decision last updated: 06 February 2024
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