[2011] NSWCA 403
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597
[2017] NSWCA 206
The Age Company Ltd v Liu (2013) 82 NSWLR 268
[2013] NSWCA 26
Tjiong v Tjiong [2012] NSWCA 201
Tomko v Palasty (No 2) (2008) 71 NSWLR 61
Source
Original judgment source is linked above.
Catchwords
[2011] NSWCA 403
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597[2017] NSWCA 206
The Age Company Ltd v Liu (2013) 82 NSWLR 268[2013] NSWCA 26
Tjiong v Tjiong [2012] NSWCA 201
Tomko v Palasty (No 2) (2008) 71 NSWLR 61
Judgment (5 paragraphs)
[1]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
BELL P: On 30 June 2020, Ms Ayan Abdi Hassan (Ms Hassan) filed a detailed notice of appeal from a series of decisions of Fagan J of the Common Law Division of this Court: see Hassan v Royal Prince Alfred Hospital [2019] NSWSC 1651; Hassan v Sydney Local Health District [2019] NSWSC 1652; and Hassan v Sydney Local Health District (No 2) [2020] NSWSC 475.
The notice of appeal is a discursive document running to some 33 pages.
On 26 August 2020, Gleeson JA dismissed a notice of motion brought by the respondent to the appeal, Sydney Local Health District (SLHD), seeking to have the notice of appeal struck out as incompetent: see Hassan v Sydney Local Health District [2020] NSWCA 195 at [16]-[22]. At [21], his Honour reached the following conclusion:
"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."
Also before Gleeson JA on 24 August 2020 was a notice of motion brought by Ms Hassan seeking the review of the decision of Registrar Riznyczok (the Registrar) to refuse leave to issue subpoenas in her appeal proceedings to obtain documents from SLHD. As Gleeson JA observed, the power of review of the decision of the Registrar arises under the Supreme Court Act 1970 (NSW) s 121 and the Uniform Civil Procedure Rules 2005 (NSW) r 49.19(1) (UCPR); see also Tomko v Palasty (No 2) (2008) 71 NSWLR 61; [2007] NSWCA 369.
Gleeson JA described Ms Hassan's essential complaint at [25] of his reasons as follows:
"… 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.'"
In her underlying appeal from the decisions of Fagan J which has not yet been heard, Ms Hassan complains that his Honour erred in not ordering discovery or issue of subpoenas in June 2019. Ms Hassan submitted that this asserted error gave rise to lack of procedural fairness in Fagan J's decision of 28 November 2019 to the effect that Ms Hassan's expert evidence did not support her underlying allegations of medical negligence, because SLHD withheld evidence that otherwise would have been provided to her experts to support her case and, in particular, her claim not to have consented to a particular biopsy. At [28] of his reasons, Gleeson JA observed that:
"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)."
After giving consideration to both the text of and case law in relation to s 75A of the Supreme Court Act, Gleeson JA proceeded to consider the three subpoenas which the Registrar had refused leave to issue. These were subpoenas addressed to Dr Jones, medico-legal officer for SLHD; the second was addressed to the Proper Officer, National Information Release Unit, which seems to be a reference to the Australian Health Practitioner Regulation Agency (AHPRA); and the third was 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.
It is convenient to reproduce Gleeson JA's reasoning in relation to his review of the Registrar's decision which refused leave to issue the subpoenas, before turning to the grounds on which Ms Hassan seeks review of Gleeson JA's decision on that subject. His Honour's reasoning in respect of the subpoenas was as follows:
"RPAH - Ms Hassan's medical records
[35] 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.
[36] 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.
[37] 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).
[38] 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.
[39] 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.
[40] 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.
[41] 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
[42] 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.
[43] 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 [hearing]: Akins v National Australia Bank at 160.
RPAH - Patient No 5
[44] 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.
[45] 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.
[46] 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.
[47] 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.
[48] The Registrar was correct to refuse leave to issue the subpoenas."
[3]
Notice of Motion
On 7 September 2020, Ms Hassan filed a notice of motion which contained some 59 paragraphs and was largely discursive in form.
By orders made on 23 October 2020, the Registrar listed prayers 7 and 8 of the motion for hearing on 30 October 2020 on the basis that they sought a review of the decision of Gleeson JA of 26 August 2020.
The Registrar struck out the balance of the notice of motion and made directions for the filing and service of submissions in respect of prayers 7 and 8 by both Ms Hassan and SLHD. The Registrar directed that the appellant (Ms Hassan) "may address in the submissions why prayers (other than 7 and 8) are valid prayers for relief in this Court in terms of it being a motion."
Prayers 7 and 8 of the notice of motion were as follows:
"7. I seek an order to set aside the judgement orders of the 26th of August 2020 pursuant to rules 36.16(3a) and 36.15(1) of the UCPR: 'A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.' There was bias and denial of natural justice.
8. I seek an order to set aside all the judgements of Justice J.A Gleeson of the 26th of August 2020 Hassan v Sydney Local Health District [2020] NSWCA 195, pursuant to rules 36.16(3a) and 36.15(1) of the UCPR: 'A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.' There was a lack of impartiality, administrative mismanagement, and failure to render a judgement in a reasonable amount of time. During the hearing of the 25th of August 2020, Justice J.A. Gleeson had the affidavit of solicitor Ms Seun ldowu dated the 30th of November 2018 and the affidavit of Dr Roslyn Jones dated the 21st of December 2018, both of which contained false documents, and the affidavit of Ms Seun ldowu dated the 12th of June 2019, which was provided in the Court, and the affidavit of the 25th of July 2019, which was provided in the Court by Ms ldowu on the day of the directions. Both were in the defendant's court books, and show that the affidavits they provided were false and forged. I provided an affidavit on the 9th of August 2020 with two exhibits: one is the affidavit of the 28th of April 2020 showing that my medical record had no electronic medical record or electronic medications record; the other is the affidavit of the 29th of June 2020 which shows all the electronic health record that was provided were false documents. That's proved in the affidavit of solicitor Ms Seun ldowu of the 25th of July 2019 exhibit 1, which is the policy directive NSW State Health Forms. Exhibit 2 also shows a policy directive of Clinical Procedure Safety, showing that my surgery shouldn't have been in the theatre and I shouldn't have had a general anaesthetic. Those affidavits are clear that there is criminal activity in the hospital and in the Court. Please see my submissions at the bottom. There was bias and a denial of natural justice." (emphasis added)
The balance of the notice of motion is a combination of discursive submissions, assertions as to the commission by various persons of various offences under the Crimes Act 1900 (NSW) and references to case law.
To the extent that the notice of motion sought orders other than orders 7 and 8 which have been set out above, some of the orders sought were for the referral of Justice Fagan and a "Justice J.A. Gleeson" to the Commonwealth Parliament, "pursuant to misbehaviour and incapacity Parliamentary Commissions Act 2012 to intervene". Other orders sought were to set aside various judgments of Justice Fagan which are the subject of separate appeal proceedings.
In oral address it appeared from her submissions that Ms Hassan also wished to have various doctors associated with the Royal Prince Alfred Hospital in some way referred to authorities, although that relief does not seem to be the subject of any reference in the notice of motion. It may be that Ms Hassan wished to have the various doctors' names referred to the Commonwealth DPP as that is the order sought in prayer 2 of the notice of motion, although that does not identify any named individuals.
Nothing put in the course of the hearing called into question the correctness of the Registrar's decision striking out the balance of the notice of motion.
[4]
Consideration
Ms Hassan filed detailed submissions with the Court on 7 October 2020. These were responded to by SLHD in submissions filed on 19 October 2020. Ms Hassan then filed a further 11 pages of single spaced submissions on 23 October 2020.
The essence of Ms Hassan's argument in support of prayers 7 and 8 of her notice of motion was contained in para 11 of her principal written submissions. In that paragraph, she asserted that:
"…there was a lack of impartiality, administrative mismanagement, and failure to render a judgment in a reasonable amount of time. There was a denial of procedural fairness and bias. Justice Gleeson just followed the same judgment that Justice Fagan made without looking at the issues. Justice Gleeson is protecting the name of the hospital."
As to the assertions of lack of impartiality and bias, including that Justice Gleeson was "protecting the name of the hospital", nothing advanced orally or in writing by Ms Hassan supplies a skerrick of support for that assertion.
Insofar as Ms Hassan complained that there was a "failure to render a judgment in a reasonable amount of time", in her oral submissions before the Court, Ms Hassan advanced an argument to precisely the opposite effect, namely that Justice Gleeson's judgment, delivered on 26 August 2020 after a hearing on 24 August 2020, had been far too quickly delivered for him to have considered the volume of material which Ms Hassan had placed before the Court and that, in Ms Hassan's opinion, this should have taken him "two weeks". This material included copies of an affidavit and exhibits thereto which she had forwarded to his Honour's chambers on the morning of 25 August 2020, as she had foreshadowed she would in the oral hearing before his Honour on 24 August 2020. The affidavit in question was an affidavit of a Ms Idowu of 30 November 2018. This is the affidavit referred to in [36] and [37] of his Honour's judgment which has been extracted at [8] above. As correctly recognised by the respondent, there is no basis to suggest that Gleeson JA ignored the material that Ms Hassan provided to him shortly after the hearing, and he clearly did consider that material in his judgment.
As to her contention that "Justice Gleeson just followed the same judgment that Justice Fagan made without looking at the issues", this is wholly without foundation. The respondent was correct to point out that a review of the transcript of the application before Gleeson JA and his Honour's subsequent judgment makes plain that he took time to ensure that he had a complete set of the affidavits and submissions upon which Ms Hassan relied, he did not misdirect himself as to the law, and he then applied the law to the three subpoenas the subject of the application before him.
Nor did Gleeson JA simply "follow the same judgment that Justice Fagan made", contrary to Ms Hassan's contention. Gleeson JA ultimately found in relation to each subpoena that Ms Hassan failed to demonstrate a legitimate forensic purpose to seek documents for the purpose of adducing additional evidence on appeal. As the respondent submitted, the decision was open to his Honour and was not unreasonable, and there was no denial of procedural fairness to Ms Hassan.
In oral submissions, Ms Hassan submitted that leave should be granted "in the interests of justice and fairness of procedure". In response, the respondent contended that there was nothing "sufficiently out of the ordinary" in the present matter that would justify the granting of leave to issue any of the subpoenas sought by Ms Hassan, adopting the terminology of Tjiong v Tjiong [2012] NSWCA 201 at [168].
By her notice of motion extracted at [12] above, Ms Hassan sought an order to set aside the judgment of Gleeson JA, pursuant to r 36.15(1) of the UCPR. This rule provides that a judgment of the court may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. To the extent that rule is relied on, the application can be made to the court as constituted to make the challenged order. In any event, for the reasons given above, there is nothing in Ms Hassan's oral or written submissions which made good any allegation that the judgment of Gleeson JA was irregular, illegal or against good faith, and Ms Hassan's contention that there "was bias and [a] denial of natural justice" lacks foundation.
The power invoked in the present case is the power to "discharge or vary" a judgment of a single judge of appeal given in exercise of powers conferred by s 46 of the Supreme Court Act: see s 46(5). That is a broad discretionary power subject to similar, but not lesser, constraints than those governing the grant of leave to appeal: Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [48]. As has regularly been pointed out in decisions of this Court, a grant of leave to appeal generally requires there to be identified an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: see, for example, Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at 32]-[38]; The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; and Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]. Gleeson JA's decision also related to a matter of practice and procedure. Particular caution and circumspection is required when reviewing such decisions: Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 at 177; [1981] HCA 39; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [3].
None of these criteria is established in the present case. In my view, for the reasons set out above, the application for leave to appeal should be dismissed with costs.
BASTEN JA: I agree with the President.
LEEMING JA: I agree with Bell P.
[5]
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Decision last updated: 23 December 2020