Hassan v Sydney Local Health District

Whether the notice of appeal is incompetent?

1. There are two grounds of the SLHD's motion. First, it is contended that to the extent that Ms Hassan appeals against the decisions of the primary judge given on 14 June 2019 and 28 November 2019, the appeal is incompetent because those decisions are interlocutory and leave to appeal is required pursuant to s 101(2)(e) of the Supreme Court Act 1970 (NSW).
2. Whilst leave is required under s 101(2)(e) to challenge an interlocutory judgement or order, the position is different once final orders have been made. Interlocutory decisions which affect the final result may generally be challenged as of right in an appeal against a final judgment: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 at [6]; Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [78].
3. The orders made by Fagan J on 5 May 2020, following his answer to the separate question, were final. His Honour disposed of the claims in the proceedings by entering judgment in favour of the SLHD and making the costs order: Bretheran (Exclusive Bretheran) Christian Church v The Aged Company Ltd; Plymouth Bretheran (Exclusive Bretheran) Christian Church v Fairfax Media Publications Pty Ltd (2018) 97 NSWLR 739; [2018] NSWCA 95 at [122]-[123].
4. The earlier interlocutory decisions of Fagan J on 14 June 2019 - refusing Ms Hassan's applications for discovery or issue of subpoenas - and on 28 November 2019 - dismissing her claims for medical negligence - at least arguably contributed to the final order. In these circumstances it is inappropriate to peremptorily strike out as incompetent those grounds of the notice of appeal which challenge the two earlier interlocutory decisions.
5. Second, SLHD contends that the balance of the notice of appeal is otherwise embarrassing given its prolixity. I accept that the notice of appeal does not comply with the Rules. Among others, it does not meet the requirement of brevity in stating the grounds of appeal: UCPR r 51.18(1)(e). However, that is unsurprising in the case of a self-represented litigant.
6. In this case the balance between efficient and cost-effective case management and the likely benefit to the other party and the Court in requiring a self-represented litigant to file an amended document is firmly in favour of leaving the notice of appeal to stand as is. It is doubtful that the prolixity in the notice of appeal is likely to be cured by requiring Ms Hassan to start again. More importantly, it is apparent from the written submissions of SLHD on this application that it has a general understanding of the grounds of appeal sought to be relied upon by Ms Hassan.
7. The motion by SLHD should be dismissed.

Leave to issue subpoenas

1. The power of review of the decision of the Registrar arises under Supreme Court Act, s 121 and UCPR, r 49.19(1). The nature of such a challenge relying on UCPR, r 49.19(1) was addressed by this Court in Tomko v Palasty (No 2) (2008) 71 NSWLR 61; [2007] NSWCA 369. A review is not an appeal and is not subject to the restrictions that apply to appeals.
2. It is appropriate to proceed upon the basis that review involves discretionary intervention, the starting point is the decision that is to be reviewed, while the Court is to make the relevant decision afresh, it will have regard to the basis on which the decision was made and the material placed before the Court itself on the application for review: Wiley v Led (South Coast) Pty Ltd (2009) 76 NSWLR 428; [2009] NSWSC 946 at [26] (Barrett J).
3. Ms Hassan's essential complaint is that the Registrar refused leave to issue subpoenas without considering her affidavits of 28 April 2020 and 29 June 2020. She says that these affidavits show that "the defendant [SLHD] and their solicitor and barrister provided false documents and perverted the course of justice. They lied in their affidavits, which is perjury."
4. The transcript of the hearing before the Registrar was not in evidence on this application. In these circumstances, I have considered Ms Hassan's application afresh taking into account the various affidavits identified by her on the hearing before me.
5. By her appeal Ms Hassan contends that the primary judge erred in not ordering discovery or issue of subpoenas on 14 June 2019 and that this asserted error gave rise to lack of procedural unfairness in the decision of 28 November 2019 that her expert evidence did not support the allegations of medical negligence, because SHLD withheld evidence that otherwise would have been provided to her experts to support her allegations of negligence. She also contends that the primary judge erred in answering the separate question affirmatively and in making final orders on 5 May 2020 because, contrary to his Honour's factual finding, she did not consent to the biopsy on her left vastus. That finding was partly credibility based. If these errors were established the result will almost inevitable be an order for a new trial: UCPR, r 51.53
6. Ms Hassan seems to think, that she can establish the asserted errors by the primary judge by issuing subpoenas on appeal to obtain documents she thinks exist which support her contentions, when she was refused further discovery or leave to issue subpoenas in the proceedings below. The present question is not the relevance of the documents at trial, but relevance on appeal. The documents sought on the proposed subpoenas can only have relevance in the circumstances of an appeal in support of an application to adduce additional evidence on appeal relying upon 75A(7) of the Supreme Court Act, as to which the "special grounds" constraint in s 75A(8) would apply where there has been a trial or hearing on the merits. That constraint does not apply concerning matters occurring after trial: s 75A(9).
7. In general, three conditions need to be established to satisfy the requirement of "special grounds" in s 75A(8): 1. the evidence could not have been obtained with reasonable diligence for use at the trial; 2. the evidence must be such that there must be a high degree of probability that there would be a different verdict; and 3. the evidence must be credible. See Akins v National Australia Bank (1994) 34 NSWLR 155 at 160; Tjiong v Tjiong [2012] NSWCA 201 at [166].
8. In assessing the importance of the three criteria, the presence or absence of any single criterion is not necessarily determinative: Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay [2010] NSWCA 64 at [13]-[22] (Spigelman CJ) and [135]-[136] (Campbell JA); Tjiong v Tjiong at [168] ff.
9. The question of whether special grounds are required to justify the admission of further evidence on an appeal against an interlocutory order was discussed in Romeo v Papalia [2012] NSWCA 221 at [63]-[78] (Sackville AJA, Basten JA and Campbell JA agreeing). See also Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80 at [60]-[67] (Heydon JA). This is relevant in the present case where Ms Hassan challenges both interlocutory orders of the primary judge, in addition to challenging the final order. Romeo v Papalia favours the view that the expression "judgment after a trial or hearing on the merits" depends on the substantive nature of the proceedings, rather than the mere classification of the particular order as "interlocutory" or "final". Adopting the approach on this application most favourable to Ms Hassan, that neither of the interlocutory orders on 14 June 2019 or 28 November 2019 answers the description of a "hearing on the merits", the test for adducing additional evidence to challenge those interlocutory orders is that referred to by Brereton J said in McGregor v Potts (2006) 68 NSWLR 109; [2005] NSWSC 1098 at [38]: And while it remains necessary for an appellant who wishes to rely on further evidence to obtain a favourable exercise of discretion under s 75A(7), a more liberal approach is taken in interlocutory appeals. [Citations omitted.]
10. As to the appeal against the final order, the test is that stated in s 75A(8), subject to the exception in s 75A(9).
11. Subject to the limited circumstances in which "fresh" or "further" evidence may be admitted on appeal under s 75A, the appeal is not the occasion to present a different case or an enhanced case on appeal based on new materials: Markisic v AEA Ethnic Publishers Pty Ltd [2006] NSWCA 241 at [7] (Giles JA).

The subpoenas

1. There are three subpoenas: one addressed to Dr Jones, medico-legal officer for SLHD; the second is addressed to the Proper Officer, National Information Release Unit, which seems to be a reference to the Australian Health Practitioner Regulation Agency (AHPRA); the third is addressed to Dr Jones, relating to records of the "IRO" being a reference to the Institute of Rheumatology and Orthopaedics, which is a clinical service of the RPAH.

RPAH - Ms Hassan's medical records

1. The first subpoena calls for the production of 167 documents relating to the medical record of Ms Hassan at variously, the RPAH and the IRO. It is apparent from Ms Hassan's affidavits that many of the documents sought, or at least copies thereof, are already in the possession of Ms Hassan, as they are annexed or exhibited to her affidavits relied upon on this application. Some of the documents sought relate to records of Medicare payments. A further category of documents sought is the electronic copy of the medical record of Ms Hassan at RPAH in April 2015.
2. As to the last two categories, the affidavit evidence of SLHD below, which Ms Hassan tendered on this application, is that SLHD did not have possession of the Medicare payment documents and that the documents provided on discovery included the documents obtained from the electronic medical record of Ms Hassan: see affidavit of the Ms Babaseun Idowu dated 30 November 2018.
3. Ms Idowu deposed in her affidavit that Ms Hassan was provided with 179 pages of her medical records from the RPAH and the IRO; these included documents sourced from electronic records maintained by the RPAH, from Professor Paul Stalley, the surgeon, and the Neuromuscular Clinic which Ms Hassan first attended in February 2015 (pars 9, 15-17). Ms Idowu also deposed that she was instructed by Dr Jones and verily believed that the Exhibit to her affidavit contains the entirety of SLHD's records for Ms Hassan arising from her treatment provided to her by the RPAH in April 2015 (par 16).
4. The starting point in the proceedings below is that the list of documents and the supporting affidavit are generally conclusive as to whether the party had any undisclosed documents: Proctor & Gamble Australia Pty Ltd v Medical Research Pty Ltd [2001] NSWSC 183 at [64]-[66]. Ms Hassan's challenge to the adequacy of discovery by SLHD was rejected by the primary judge on 14 June 2019.
5. Ms Hassan says on appeal that the affidavit of Dr Jones verifying the SLHD's list of documents is false, and that the documents in fact provided on discovery were "false and forged documents". She also contends that an affidavit of the Ms Idowu dated 30 November 2018 concerning the discovery given by the SLHD is false.
6. None of the material relied upon by Ms Hassan on this application arguably supports the assertion that the documents provided by the SLHD on discovery were "false and forged documents". Ms Hassan has not identified any arguable basis for doubting the veracity of the affidavit verifying the list of documents. Nor is there any arguable evidentiary basis for the very serious allegations by Ms Hassan that Dr Jones and Ms Idowu lied in their affidavits concerning the discovery given by the SLHD.
7. The first subpoena is a classic fishing expedition. In the proceedings below Ms Hassan's complaint was that the SLHD was withholding evidence. The primary judge rejected this complaint on 14 June 2019. It seems that after the hearing of the separate question on 25 March 2019, Ms Hassan's complaint was expanded to include that the documents provided on discovery were "false and forged". The primary judge rejected that submission when he addressed that evidence in his judgment delivered on 5 May 2020: at [42]. As I have said, there is no arguable basis for this allegation on the evidence adduced on this application. Ms Hassan has failed to demonstrate a legitimate forensic purpose to seek the documents under the first subpoena with a view to adducing additional evidence on appeal.

AHPRA

1. The second subpoena seeks 54 documents relating to the registration, indemnity insurance and employment arrangements with respect to ten named individuals, who it seems were either medical practitioners or nurses registered with the AHPRA.
2. Again no legitimate forensic purpose has been identified in seeking these documents. In the circumstances of an appeal, Ms Hassan has not demonstrated that this evidence could not have been obtained with reasonable diligence for use at trial, and there is no basis for thinking that this evidence (which is unknown) would with a high degree of probability lead to a different result on the final: Akins v National Australia Bank at 160.

RPAH - Patient No 5

1. The third subpoena calls for documents relating to another patient who was listed as the fifth person to have surgery on 7 April 2015, the same day as the biopsies in relation to Ms Hassan.
2. The "list" schedule for 7 April 2015 was available to Ms Hassan below. It shows that the fifth patient was listed to have an excision of a lump on the left distal thigh. Ms Hassan says that this procedure did not eventuate for patient No 5 who was withdrawn from the list on 7 April 2015, and instead this procedure was performed on her without her consent; that is, she was mistaken by the treating doctors on 7 April 2015 for patient No 5.
3. There is no evidence on this application which suggests that a biopsy of the left vastus is the same procedure as the excision of a lump on the left distal thigh. The inference can be drawn from their different anatomical descriptions that the vastus and the distal thigh refer to different parts of the anatomy of the thigh. Nor is there any evidence which suggests that Ms Hassan was mistaken by the treating doctors for patient No 5 on 7 April 2015.
4. Again, this is a classic fishing expedition. No legitimate forensic purpose has been shown to obtain the medical records of another patient, with a view to seeking to adduce additional evidence on appeal.
5. The Registrar was correct to refuse leave to issue the subpoenas.

Other matters

1. Insofar as Ms Hassan sought a variety of other relief in her motion, such as a new trial, none of the relief sought was appropriate in advance of the hearing of the appeal.

Orders

1. Both motions should be dismissed. As to costs, in each case there is no reason why costs should not follow the event in relation to each motion: UCPR, r 42.1.
2. Accordingly, the Court orders that: 1. Dismiss the respondent's notice of motion dated 5 August 2020 with costs. 2. Dismiss the appellant's notice of motion dated 9 August 2020 with costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 August 2020