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 1. 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. 2. 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. 3. 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. 4. The orders sought in the summons are (in summary): 1. An order that Mr Alan Hewit be appointed to represent the estate of Mrs Hewit for the purpose of these proceedings; 2. An order that the New South Wales State Coroner undertake an investigation/ inquest/ autopsy to determine whether the actual cause of death of Mrs Hewit is as stated on the death certificate dated 26 September 2019, and if not, then to determine the cause of death; and 3. An order that, if the cause of death is discovered to be the result of neglect, the New South Wales State Coroner then asks New South Wales Police to investigate. 1. The NSW State Coroner has been named as the sole defendant. 2. The matter comes before the court today pursuant to a notice of motion on behalf of the Attorney General for New South Wales filed in Court today. 3. The Attorney General is represented by Mr R A Yezerski instructed by the Crown Solicitor. Mr Hewit appears himself. He is not at this stage seeking legal representation. Mr Hewit informed the court that he opposed the orders sought in the notice of motion primarily because he was concerned about delay in the overall proceedings but he did not oppose the application being dealt with today. 4. As set out in the motion, a number of orders are sought including that leave be granted to the Attorney General to file the motion instanter and, that the motion be returnable instanter. Mr Hewit did not oppose those orders. 5. The principal order sought is that the Attorney General be joined to these proceedings as the second defendant pursuant to s 86A of the Coroners Act 2009 (NSW). In the alternative, the Attorney General seeks leave to intervene in the proceedings pursuant to s 23 of the Supreme Court Act 1970 (NSW), and that the Attorney General intervene and be joined to the proceedings as second defendant pursuant to rr 6.24 and 6.27 of the Uniform Civil Procedure Rules 2005 (NSW). In the further alternative, the Attorney General seeks an order that he be permitted to participate in the proceedings as amicus curiae. 6. In support of his application, the Attorney General relied on an affidavit of Andrew Bell, affirmed 14 October 2019, which was admitted without objection. Mr Hewit was afforded an opportunity to tender any evidence on which he wished to rely on the application but, as he said, he did not have any evidence to tender at this time. He also said that as the motion had only very recently been served on him, he did not have an opportunity to obtain any evidence in response to the application. 7. I explained to Mr Hewit that the application today only sought orders joining the Attorney General to the proceedings and that no orders were sought which would deal with the substance of the matter. 8. Mr Hewit explained his concerns about potential delay and raised issues relating to the treatment of his mother. Mr Hewit has already filed an affidavit in the proceedings. Again I explained to Mr Hewit that the court would not today be determining the issues arising out of those matters. I asked Mr Hewit whether he wished to apply for an adjournment of the application before the court today and he indicated that he did not wish to make an application for an adjournment. As such, I dealt with the application. 9. Mr Hewit confirmed that he was proceeding pursuant to s 84 of the Coroners Act. He maintained that he had standing being "any other person" within the meaning of s 84 of the Coroners Act. He indicated that in those circumstances it may not be necessary for there to be a second plaintiff, the second plaintiff being the estate of Mrs Hewit. There is no grant of probate at this time in any event. I suggested to Mr Hewit that he may wish to speak to the Crown Solicitor's Office about that issue at some time after today. 10. Section 84 is contained within Chapter 7 of the Coroners Act which deals with the powers of the Supreme Court. As set out in s 86 of the Act, if an application for order under this chapter is made by a person other than the Minister, notice of the application must be served on the Minister in accordance with the rules of the Supreme Court. Annexed to the affidavit of Mr Bell is a copy of a letter from Mr Hewit to the Attorney General dated 9 October 2019 specifically referring to the requirement under s 86 of the Act to provide the Attorney General, being the relevant minister, with the application which he had filed. 11. As set out in s 86A of the Coroners Act, the Minister may intervene in any application for an order under chapter 7 to which the Minister is not a party. The Attorney General is not a party to these proceedings as yet. If the Minister intervenes in an application for order under chapter 7, the Minister becomes a party to the application and has all the rights including rights of appeal of a party to the application. The NSW State Coroner has already filed a submitting appearance. For the reasons identified on behalf of the Attorney General I am satisfied that the Attorney General should be joined to these proceedings. At this stage there is no other contradictor and it is apparent from the limited information of which I am currently aware that there are, or may be, a number of issues which will arise on the hearing of Mr Hewit's application in due course. 12. Further, the Attorney General has a general interest in the outcome of the application having regard to the public's interest in whether or not coronial inquests are heard in particular matters. There is no evidence that the joinder will delay the proceedings. In referring to Mr Hewit's concern about potential delay, I am not suggesting any delay would be a reason for refusing the application. 13. In the circumstances, I am satisfied that the Attorney General should be joined to the proceedings as a second defendant pursuant to s 86A of the Coroners Act.