Hewit v NSW State Coroner - [2019] NSWSC 1401

Supreme Court

New South Wales

Medium Neutral Citation: Hewit v NSW State Coroner [2019] NSWSC 1401
Hearing dates: 14 October 2019
Date of orders: 14 October 2019
Decision date: 14 October 2019
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) Leave be granted to the Attorney General of New South Wales to file the notice of motion, dated 14 October 2019.
(2) Pursuant to r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW), leave be granted for the motion filed 14 October 2019 by the Attorney General to be returnable instanter.
(3) The Attorney General be joined to these proceedings as the second defendant pursuant to s 86A of the Coroners Act 2009.

Catchwords: CIVIL PROCEDURE — Parties — Interveners — intervention by Minister pursuant to s 86A of the Coroners Act 2009 (NSW)
Legislation Cited: Coroners Act 2009 (NSW), ss 84, 86, 86A
Supreme Court Act 1970 (NSW), s 23
Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 6.27
Category: Procedural and other rulings
Parties: Alan Hewit as representative of Mrs Paula Hewit (First Plaintiff)
Estate of Paula Hewit (Second Plaintiff)
State Coroner of New South Wales (Defendant)
Attorney General of New South Wales (Intervener)
Representation:
Solicitors:
Crown Solicitors (Intervener)
First Plaintiff (self-represented)
Second Plaintiff (self-represented)

File Number(s): 2019/313591
Publication restriction: Nil

Judgment

HIS HONOUR: Pursuant to a Summons filed on 8 October 2019 the plaintiffs seek a number of orders, including that the NSW State Coroner undertake an inquest to determine what they describe as the actual cause of death of the late Mrs Paula Hewit.
The plaintiffs are Mr Alan Hewit, (who is the son of the deceased and who describes himself in the summons as a representative of his mother) and the estate of Mrs Paula Hewit, which is named as the second plaintiff. Probate has not been granted. No issue was taken today with the capacity or the legal status of the plaintiffs to seek the orders sought in the summons. In practical terms, Mr Hewitt is seeking to compel the coroner to investigate the recent death of his mother in an aged care facility.
Mrs Hewit died on 26 September 2019. At the time she was residing at an Aged Care Facility in Wahroonga. Mr Hewit has raised a number of concerns about the treatment of his mother leading up to her death, and in particular, has raised concerns relating to the medication with which she was provided and the failure to provide intravenous fluids to her prior to her death. He submits that an inquest would be appropriate in circumstances in which he considers and asserts today that there was gross negligence in the period prior to his mother's death and that this caused her death. The coroner has rejected his request for an inquest. Mr Hewit has filed a summons with the intent of having this court direct that the Coroner conduct an inquest.
The orders sought in the summons are (in summary):

An order that Mr Alan Hewit be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hewit v NSW State Coroner

Details

AGLC: Hewit v NSW State Coroner [2019] NSWSC 1401
Case: [2019] NSWSC 1401
Decision Date: 14 October 2019

CaseChat Overview and Summary

The matter before the court involved Hewit as the plaintiff, contesting a decision made by the NSW State Coroner. The dispute centred on the coroner's handling of a particular inquest and the broader implications for how such inquests are conducted in the future. The case was heard in the Supreme Court of New South Wales.

The primary legal issue that the court had to address was whether the Minister for Justice was entitled to intervene in the proceedings under section 86A of the Coroners Act 2009 (NSW). The court was required to determine the scope and limitations of the intervention provisions within the Coroners Act and whether the Minister’s intervention was permissible and appropriate in the circumstances presented. Additionally, the court needed to consider whether the Minister’s intervention would affect the fairness or the integrity of the proceedings.

The court meticulously examined the provisions of the Coroners Act, particularly section 86A, which allows for intervention by the Minister. It considered the purpose of such intervention and the conditions under which it could be invoked. The court held that the Minister’s intervention was justified in this case because it was necessary to address significant public interest considerations and to ensure that the inquest was conducted in a manner that upheld the principles of natural justice and procedural fairness. The intervention did not prejudice the rights of the parties involved and was deemed appropriate under the statute. Consequently, the court ruled in favour of the Minister’s intervention.

The final orders of the court affirmed the Minister's right to intervene in the proceedings as provided for under section 86A of the Coroners Act 2009 (NSW), and directed that the inquest should proceed under the supervision and guidelines set forth by the Minister to ensure compliance with the statutory requirements and the preservation of due process.

Orders