Tendek v Williams

[2004] NSWSC 591

CITATION:	Tendek v Williams & Ors [2004] NSWSC 591
HEARING DATE(S):	1 July, 2004
JUDGMENT DATE:	1 July 2004
JURISDICTION:	Common Law Division Administrative Law List
JUDGMENT OF:	Palmer J
DECISION:	Stay of guardianship order lifted until further order.
CATCHWORDS:	GUARDIANSHIP - APPEAL - STAY - Appeal against order appointing two of the three children of an elderly person as her guardians - urgent medical treatment required - Appellant disagrees with proposed medical treatment - whether the automatic stay of a guardianship order provided by s.67(5) Guardianship Act should be lifted pending hearing of the appeal.
LEGISLATION CITED:	Guardianship Act 1987 (NSW) - s.67
PARTIES :	Alexander Tendek - Plaintiff Dr Nick Williams - First Defendant - withdrawn Linda Ryan - Second Defendant Gurdianship Tribunal - Third Defendant
FILE NUMBER(S):	SC 30048/04
COUNSEL:	In person - Plaintiff In person - Second Defendant Ms L. Plater (Sol) - Third Defendant
SOLICITORS:	In person - Plaintiff Bartier Perry- First Defendant - withdrawn In person - Second Defendant State Crown Solicitor's Office - Third Defendant

Ex tempore

On application for adjournment

1    On 23 June 2004 the Guardianship Tribunal made an order under the Guardianship Act 1987 (NSW) that Mrs Valentina Tendek be placed under the guardianship of her daughters, Mrs Linda Ryan and Dr Lynette Tendek. Mrs Tendek had previously been under the care of her son, Alexander Tendek. 2 There is some dispute as to whether Mr Tendek was given notice on the morning of 23 June 2004 that the Guardianship Tribunal was about to consider that day an application by Mrs Ryan that Mrs Tendek be placed under her guardianship. 3 Mrs Tendek was admitted to hospital with what is diagnosed as an irreversible ischaemia of her right foot, that is the skin and muscle is dead and is not salvageable according to the opinions of her treating doctors, Dr D. Holdaway and Dr N. Williams. The underlying reason is said to be acute thrombosis of a diseased femoral artery. 4 The difficulty occasioned to the hospital was that Mrs Tendek was not able to give proper directions and consent to her treatment. She is eighty-two years old and is suffering from a cognitive impairment which is described as from moderate to severe. The hospital naturally wished to have someone available who could properly give the hospital instructions as to Mrs Tendek’s treatment, because the treating doctors were of the opinion that it was necessary, in order to save Mrs Tendek’s life, that her right leg be amputated above the knee. 5 Mr Tendek strenuously opposed the proposed treatment of amputation. He was, and remains, of the view that there are other treatments available, principally by medication, which will preserve Mrs Tendek’s life without the need for amputation. 6 Mr Tendek did not attend the hearing before the Tribunal on 23 June 2004. He has given me an explanation as to why he did not: he says he was not sure in the morning that there was to be a hearing by the Tribunal rather than simply a meeting to consider Mrs Tendek’s condition. He says further that he did not have time, or did not think he had time, to attend the hearing. I note that the hearing was conducted at the Prince of Wales Hospital in Randwick and that Mr Tendek lives not far away in Bondi. 7 It appears further that Mr Tendek rang the hospital at least on two occasions during the course of the hearing, to find out what was going on. I think it is a reasonable assumption, and the Tribunal made this assumption in its reasons for its order, that Mr Tendek was at least by mid-afternoon aware that it was a hearing of the Tribunal which was in the course of conduct at the hospital. 8 I should note that there are records of a number of calls by Mr Tendek to the hospital during the course of the afternoon, and they are noted in the Tribunal’s reasons. I should add as well that the Tribunal endeavoured on many occasions during the course of that day to contact Mr Tendek to advise him what was happening and to invite his participation, but they were for one reason or another unable to make contact with him. 9 It is sufficient to say that the Tribunal was very acutely aware that Mr Tendek strenuously opposed the application for guardianship made by his sister, and was acutely aware of the reasons that Mr Tendek opposed that application, that is, that he believed the treatment which was envisaged by the treating doctors was quite inappropriate and that he himself would be better able to procure the best treatment for his mother. 10 It is quite clear that when the proceedings before the Tribunal concluded at approximately 4.40pm on 23 June 2004, Mr Tendek immediately became aware of the result. On the afternoon of 23 June 2004 Mr Tendek filed in the Registry of the Court a Summons which seeks to appeal against the decision of the Board pursuant to s.67 of the Guardianship Act. 11 Mr Tendek very frankly concedes that he filed the Summons fully intending to invoke the provisions of s.67(5) of the Act. That sub-section provides:
“Subject to any interlocutory order made by the Supreme Court an appeal operates to stay the decision appealed against.”

Mr Tendek says that at the time that he filed his Summons he intended to avail himself of this provision, that is, to put into effect an automatic stay of the Tribunal’s orders in order to prevent his sisters, who had been appointed as guardians, from proceeding with any treatment of his mother of which he disapproved.

12 Upon filing, the Summons was given a return date of today, that is, seven days later. 13 Mr Tendek has put on no evidence in support of whatever ultimate grounds of appeal he wishes to advance in order to have the decision of the Tribunal set aside. He says that he did not know, and still does not know, upon what grounds he ultimately intends to appeal against the Tribunal’s decision but he says that one ground may be that the Tribunal erred in law in failing to take into account his views, as the carer of his mother, as to what treatment she should receive. 14 I should say that it seems to me on a reading of the reasons for the Tribunal’s decision that the Tribunal was acutely aware of the requirement for procedural fairness, that is, that Mr Tendek’s views should be sought and should be heard, if the other circumstances of the case afforded enough time for Mr Tendek to be heard. 15 However, the Tribunal was of the view that Mrs Tendek’s condition was so serious that the application before it required urgent determination. They were further of the view that all reasonable attempts had been made to contact Mr Tendek to secure his attendance before the hearing and that, on the evidence which they had available to them at the time, it appeared that Mr Tendek was not willing to appear before them and that he was attempting, in effect, to evade participation. 16 It is not for me in this application to determine whether that finding of fact was correct. I simply note what the Tribunal said, because it demonstrates that the Tribunal rightly took into account the legal requirement for procedural fairness in allowing Mr Tendek the opportunity to be heard. It decided in its discretion that on the particular facts of the case it would proceed in Mr Tendek’s absence. That, I think, is material to note in dealing with the fate of this application. 17 As I say, Mr Tendek has not provided any evidence in support of his appeal, nor has he formulated the grounds of the appeal. What he wishes to do now is to have the proceedings stood over for an indefinite time in order to take advantage of the automatic stay provisions of s.67(5). 18 I do not think that that is the appropriate course to adopt having regard to Mrs Tendek’s medical condition as it is revealed not only in the Tribunal’s reasons delivered a week ago but in the statement provided by Drs Holdaway and Williams dated 30 June 2004. In the view of those doctors Mrs Tendek is in a serious condition and is in pain. I accept that a decision as to her medical treatment has to be made relatively quickly. I do not get the impression from the certificate dated 30 June 2004 that her condition is now immediately life-threatening but there is no doubt that her condition, nevertheless, is serious and it requires a decision as to her treatment to be made with promptness and with clarity. 19 I think that the question of Mrs Tendek’s treatment cannot be suspended indefinitely while Mr Tendek’s appeal is being heard, particularly in light of the fact that he has taken no step since the filing of his Summons a week ago to prepare himself for this hearing. 20 It seems to me that if Mr Tendek seeks to take the benefit of s.67(5), that is, the benefit of an automatic stay, he must be prepared, particularly in the grave circumstances of this case, to support his appeal at the very earliest opportunity. I do not accept as sufficient the reasons which he gives for the complete absence of any material supporting his appeal or supporting his adjournment application. 21 Accordingly, I refuse the adjournment application and I will deal now with whether or not an interlocutory order ought to be made under s.67(5) to lift an automatic stay imposed by the section.


On application for stay of the orders of the Guardianship Tribunal

22 I should preface the reasons I am about to give by saying that I fully accept that both Mr Tendek and each of his sisters genuinely believes that what he or she is doing in relation to this application is in their mother's best interests. It is quite obvious that there is a great deal of antagonism between the sisters, on the one hand, and the son on the other; that is very unfortunate at the end of their mother's life, particularly as that dissension is, no doubt, causing her both physical pain and distress, in terms of the medical treatment that she is able to receive and, also, great emotional distress at the divisions in her family. 23 Nevertheless, this problem has now been brought for resolution, firstly, by the Guardianship Tribunal and now, on appeal, by this Court. 24 The question which I have to decide is a limited one, that is, pending the determination of the appeal which has been commenced by Mr Tendek against the Guardianship Tribunal's decision, should there be a continuation of the automatic stay of the Tribunal's decision, in accordance with s.67(5) Guardianship Act , or should there be a suspension of that stay, in order to allow the order made by the Tribunal to have effect. 25 There are two essential questions involved in that decision. The first and the most important question is: what is in the best interests of Mrs Tendek, having regard to her present medical condition. The second, but a subsidiary question: is what, in any event, would be the prospect of success in the appeal. I should deal, perhaps, with the second question first, as it is probably the easier to comment upon at this stage. 26 As I have earlier noted today, Mr Tendek says that he filed his Summons seeking an appeal without having formulated any ground for appeal. He did so in order to invoke the automatic stay provision of s.67(5), with a view to frustrating any decision as to his mother's treatment which may be made by his sisters. However, he enunciated in the course of hearing today only one ground of appeal, which I have earlier referred to, that is, that the Tribunal failed to take into account his views as a carer. 27 The reasons of the Tribunal indicate that it had Mr Tendek's views as a carer already made known to it at that stage and that it was very conscious that Mr Tendek should be given the opportunity – if possible in the interests of Mrs Tendek at that time – to express those views to the Tribunal and to answer the criticisms of him as a carer made by his sisters. 28 As I say, those considerations were borne very much in mind by the Tribunal in the course of their decisions. I will not recount the facts as to the attempts to contact Mr Tendek made during the course of 23 June. It is sufficient for me to say that the Tribunal came to the view that the urgency of the medical condition of Mrs Tendek, at the time, required that her interests be regarded as paramount to the interests of Mr Tendek, in terms of his desire to be heard. The Tribunal therefore, proceeded to make a decision on the facts then known to them, despite his absence. It seems to me that there is little prospect of their decision being found to be wrong in law by reason of Mr Tendek’s non-participation in the hearing, on the basis of the facts as recounted in the Tribunal's reasons. 29 The question before this Court is not whether there should be a complete re-hearing of the facts and circumstances leading to the Tribunal's decision, but whether the decision of the Tribunal was wrong on the facts then known to the Tribunal. 30 As I say, it seems to me that the prospects of Mr Tendek's success on an appeal on a question of law – at least, on the question he has formulated – are not great. There is no other ground formulated yet by Mr Tendek in support of his appeal, but if he comes to formulate one which is not a question of law, it requires the leave of the Court to be raised: s.67(1)(b) Guardianship Act . 31 I now come to the most important question, namely, whether it is in the best interests of Mrs Tendek that there be a continuing stay of the Tribunal's order indefinitely until the appeal is heard, having regard to her present medical condition. 32 As I have noted, Mr Tendek has adduced no medical evidence to support the proposition that the current medical opinions expressed by Mrs Tendek's doctors are wrong, or inappropriate, or that there is some better mode of treatment for his mother’s condition. He, no doubt, sincerely believes this to be the case. Nevertheless, despite a period of some seven days between the filing of his appeal and today, he has not procured any medical opinion to support his own views. 33 I am satisfied that, due to the disagreement between Mr Tendek and his sisters, continuing a stay of the Guardianship Tribunal's order until the appeal is determined will result in no-one being able, effectively, to make clear and quick decisions as to Mrs Tendek's medical treatment, if they are necessary. 34 I am satisfied that Mrs Tendek's medical condition is such that quick medical decisions are likely to be required in the short term. I am not satisfied that the treatments and therapies which Mr Tendek has in mind are more appropriate medically than those of Mrs Tendek's present treating doctors. 35 Accordingly, I think it is in the best interests of Mrs Tendek, speaking only from the point of view of such medical treatment as may be required, that the stay of the Tribunal's order effected by s.67(5) be lifted until further order of this Court. That means, of course, that if circumstances change between now and the time the appeal comes on for hearing, either party is entitled to approach the Court for an order varying the order which I propose to make. 36 I appreciate, of course, that there are, between the parties to these proceedings, issues requiring decisions to be made in more than merely the medical sphere; there are quality of life decisions. Mr Tendek is particularly concerned that his mother not be left in a nursing home to die and that her wishes to be taken home should be honoured. These are broader issues than the merely medical questions for determination and one would hope that the broader quality of life issues could be discussed between the members of the family in consultation with the doctors, to ameliorate as much as possible Mrs Tendek's distress and to comply, as much as is reasonably possible, with her own wishes as to her future. 37 However, as I say, these are broader issues, which may require longer term consideration than the pressing issues as to her medical treatment. 38 The order that I make, therefore, is as follows. I order that, pursuant to s.67(5) of the Guardianship Act , the stay of the Tribunal's decision made on 23 June 2004 be lifted until further order of the Court, to the intent that the order made by the Tribunal shall continue to have effect, pending further order of this Court. 39    I will stand the matter into the Registrar's List for further directions on 8 July 2004 at 9:30am. 40    Costs of today will be reserved.
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Last Modified: 07/05/2004