Tendek v Williams & Ors [2004] NSWSC 591

New South Wales Supreme Court

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CITED : Guardianship Act 1987 (NSW) - s.67 Alexander Tendek - Plaintiff PARTIES : Dr Nick Williams - First Defendant - withdrawn Linda Ryan - Second Defendant Gurdianship Tribunal - Third Defendant FILE NUMBER(S) : SC 30048/04 In person - Plaintiff COUNSEL : In person - Second Defendant Ms L. Plater (Sol) - Third Defendant In person - Plaintiff SOLICITORS : Bartier Perry- First Defendant - withdrawn In person - Second Defendant State Crown Solicitor's Office - Third Defendant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."