Bell P, Basten JA, Leeming JA, Gleeson JA, Fagan J
Catchwords
(1976) 9 ALR 509
New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578
[2019] NSWCA 231
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
Source
Original judgment source is linked above.
Catchwords
(1976) 9 ALR 509
New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578[2019] NSWCA 231
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
Judgment (4 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 23 December 2020, this Court dismissed a motion brought by Ms Ayan Abdi Hassan (Ms Hassan), seeking to set aside the decision of Gleeson JA to refuse leave to issue subpoenas to obtain documents from the respondent, Sydney Local Health District (SLHD) for the purposes of Ms Hassan's appeal from a series of decisions of Fagan J in the Common Law Division: see Hassan v Sydney Local Health District (No 2) [2020] NSWCA 356 (the review judgment). Gleeson JA's decision is Hassan v Sydney Local Health District [2020] NSWCA 195.
The factual background to Ms Hassan's underlying appeal from the decision of Fagan J is set out in the review judgment at [1]-[16]. The crux of Ms Hassan's motion to set aside the decision of Gleeson JA was 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."
It is convenient to reproduce the central reasoning in the review judgment, before turning to the notice of motion of 5 January 2021 which has been filed by Ms Hassan and to which these reasons relate. At [19]-[26] of the review judgment, Bell P (with whom Basten and Leeming JJA agreed) held that:
"19 As to the assertions of lack of impartiality and bias, including that [Gleeson JA] was 'protecting the name of the hospital', nothing advanced orally or in writing by Ms Hassan supplies a skerrick of support for that assertion.
20 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 [Gleeson JA'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 … 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.
21 As to her contention that '[Gleeson JA] just followed the same judgment that [Fagan J] 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.
22 Nor did Gleeson JA simply 'follow the same judgment that [Fagan J] 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.
23 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].
24 By her notice of motion … 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.
25 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].
26 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." (emphasis in original).
Further background to Ms Hassan's litigation in this Court is set out in the recent judgment of Brereton JA: see Hassan v Sydney Local Health District [2021] NSWCA 97. In that decision, his Honour ordered that:
[3]
"(1) Save for:
(a) claims (1) and (2) in the motion filed 16 March 2021 (which seek to adduce new evidence in the appeal under UCPR, r 51.51); and
(b) the motion filed on 5 January 2021 which is currently before the full bench;
all outstanding interlocutory applications be dismissed, with costs."
As noted above, the motion filed on 5 January 2021 is the subject of these reasons.
The motion is a document of some 61 paragraphs running to some 22 pages. It combines a mixture of narrative history, rambling submissions and serious allegations. By my reckoning, it seeks an order to review or set aside some five judgments of this Court or a member of it, namely Gleeson JA's decision, and those of Fagan J. These reviews are purportedly sought pursuant to various sections of the Crimes Act 1914 (Cth) and the Criminal Code Act 1995 (Cth). The motion also seeks the referral of various judges and the Registrar of the Court of Appeal to the Commonwealth Director of Public Prosecutions and the Commonwealth Parliament.
By para 1(g) of the motion, Ms Hassan also seeks an order that:
"an order for all these prayers [presumably those sought in paras 1(a)-(f) of the motion] to be referred to the Commonwealth DPP and not to be struck out by anyone".
The motion refers under the heading "Documents in support" to some 7 affidavits filed in earlier proceedings with many pages of exhibits and annexures, as well as multiple sets of past submissions and "[a]ll of my notices of motion found in Court book 3 pp 67-229".
Insofar as the motion seeks review of previous judgments of this Court pursuant to the Crimes Act and a referral of judges of this Court and its Registrar to the Commonwealth Director of Public Prosecutions and the Commonwealth Parliament, both requests are self-evidently misconceived and vexatious and should be summarily dismissed.
To the extent that sense can be made of the balance of the motion, it appears that Ms Hassan seeks orders pursuant to rr 36.15(1) and 36.16(3)(a) of the Uniform Civil Procedure Rules 2005 (NSW) setting aside the decisions of Fagan J, Gleeson JA and the review judgment.
Insofar as Ms Hassan seeks to set aside the various decisions of Fagan J which are the subject of a pending appeal in this Court, the notice of motion is plainly vexatious and an abuse of process in circumstances where those decisions are already being challenged by Ms Hassan by a more regular procedural route. The respondents to Ms Hassan's appeal should not be vexed twice in that respect: Moore v Inglis (1976) 50 ALJR 589; (1976) 9 ALR 509.
Insofar as the motion seeks to set aside the judgment of Gleeson JA refusing to issue a subpoena, the motion is also an abuse of process. This is so principally because, in paragraph 8 of the motion, Ms Hassan essentially repeats the arguments that she advanced and which were rejected by this Court in the review judgment delivered on 23 December 2020. The challenge to Gleeson JA's judgment has been heard and dismissed, and it is vexatious and an abuse of process to seek to re-agitate the challenge to that decision by a further notice of motion.
That leaves for consideration Ms Hassan's application to review the review judgment itself. The basis of the application to set aside or vary the review judgment appears to be set out in paragraph 1(e) of the motion, as follows:
"I seek an order to set aside the judgement [sic] of the 23rd of December 2020 (Hassan v Sydney Local Health District No 2 [2020] NSWCA 356), and the judgement [sic] of the 26th of August 2020 (Hassan v Sydney Local Health District [2020] NSWCA 195 - Justice Gleeson), pursuant to UCPR 2005 r36.15 - 36.15 General power to set aside judgment or order (cf DCR Part 13, rule 1, Part 31, rule 12A; LCR Part 11, rule 1, Part 26, rule 3) (1) 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. In the judgement [sic] of the 23rd of December 2020, my affidavit from the 18th of August 2020, which referred to the Crimes Act 1900, my affidavit of the 19th of October 2020, which sets up new evidence, and my submissions signed and dated the 4th of October 2020 of 36 pages, with the 138 pages of tender documents documenting the false records provided, were not considered at all by the justices…"
The assertion in this paragraph that various affidavits and submissions "were not considered at all" by the Court is not accurate. The following points should be borne in mind. Only prayers 7 and 8 of the 7 September 2020 notice of motion were before the Court that considered the review judgment, with the balance of the prayers for relief sought in that motion having been struck out by the Registrar. Secondly, the material and evidence that was considered by the Court for the purposes of the review judgment was the material filed that was relevant to those two prayers for relief. Much of the voluminous material before the Court was not relevant to prayers 7 and 8.
Just because a judgment may not mention or refer to every affidavit relied upon or submission made does not mean that that evidence and/or those submissions have not been considered. This is especially so if and where the evidence or submissions in question are discursive and rambling and irrelevant to the precise issues before the Court. Regrettably, that is often although not invariably the case with some self-represented litigants who file frequent motions in this Court which are repetitive, discursive, unstructured and regularly in breach of the rules of court as to the length of submissions and the presentation of evidence.
There is no necessity for as busy a court as the New South Wales Court of Appeal to refer in its interlocutory decisions to all evidence relied upon or submissions made in such circumstances: cf. Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [44]. Just as neither the need nor the appearance of justice require that reasons be given for every decision by a judicial tribunal, as McHugh JA (as his Honour then was) observed in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 (Soulemezis), so too not every argument raised will need to be addressed in the context of a decision on practice and procedure, such as that of Gleeson JA, or a decision reviewing such a decision, such as was made in the review judgment. That is especially so where the submissions made are misconceived or repetitive or overly discursive.
To say this is not to detract from the central importance of reasons for judgment as outlined in cases such as Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667; [1986] HCA 7; Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [54]ff (Wainohu); Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 (Resource Pacific) and New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231. Considerations of proportionality and the Court's obligation to give effect to the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) call, however, for discriminating judgment by this Court as to where and how to strike a balance in dealing with motions and voluminous evidence of the kind that was before the Court for the purposes of the review judgment and as is before this Court on this motion.
To adapt a further observation of McHugh JA's in Soulemezis at [79], justice is a multi-faceted concept and the limited nature of judicial resources and the cost to litigants and the general public in requiring reasons on every argument raised by a self-represented litigant must also be weighed. A similar observation was made by Basten JA in Resource Pacific at [48]:
"Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality."
The same sentiment is also reflected in the statement in the joint judgment of French CJ and Kiefel J in Wainohu at [56], that the duty to give reasons does not apply to every interlocutory decision and that the "content and detail of the reasons to be provided will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision."
Something should also be said about para 1(f) of the motion, which was in the following terms:
"I seek an order to review the judgement [sic] of the 23rd of December 2020 (Hassan v Sydney Local Health District No 2 [2020] NSWCA 356), and the judgement [sic] of the 26th of August 2020 (Hassan v Sydney Local Health District [2020] NSWCA 195 - Justice Gleeson) … In the judgement [sic] of the 23rd of December 2020 … at paragraph [15] it says that 'It may be that Ms Hassan wished to have 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.' However, I identified in my Notice of Motion of the 7th of September 2020 at point [15] Dr Roslyn Jones, at point [17] Dr Andrew Allenby, Dr James Evans, and Dr Afik Snir, at point [19] Dr Roslyn Jones and Ms Seun Idowu, at point [21] Dr Roslyn Jones, Ms Seun Idowu, Dr Andrew Allenby, and Dr Afik Snir, at point [27] Dr Roslyn Jones, at point [28] Dr Andrew Allenby, Dr James Evans, Dr Afik Snir, and Dr Gikas. In each of these points I referred to the Crimes Act 1900, and specifically which part of the act was breached and by whom. The whole judgement [sic] is wrong because they said I did not mention any doctor. I mentioned the doctors and the solicitor who did the perjury. It is mentioned below from prayer [2] to prayer [49] and prayer [58] all the doctors and nurses. The names of all doctors, nurses and hospitals involved are listed at the top of this notice of motion under 'persons affected by orders sought'." (emphasis added).
Paragraph [15] of the review judgment which is referred to in prayer 1(f) should be noted in full. It was in these terms:
"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."
Ms Hassan's criticism is that the notice of motion of 7 September 2020 that was before the Court did contain the names of various doctors. That notice of motion ran to some 18 pages containing 59 paragraphs and it is true that there were various doctors named in the notice of motion. None was mentioned in prayer 2, however, and the purpose of [15] of the review judgment was to try to understand what relief Ms Hassan was seeking and in relation to whom that relief was being sought.
What was said in [15] of the review judgment related to part of Ms Hassan's oral address which went beyond the boundaries of the relief which had been sought in prayers 7 and 8 of the notice of motion. It related to her criticism of the Registrar's decision to strike out all but those two prayers of the notice of motion. As I said at [16] of the review judgment, "[n]othing 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". I adhere fully to that view.
Ms Hassan's oral address as referred to in [15] of the review judgment was also wholly misconceived in terms of the relief that was being sought, just as aspects of the present motion seeking to have various persons referred to the Commonwealth Director of Public Prosecutions and the Commonwealth Parliament was misconceived.
The notice of motion should be dismissed with costs.
BASTEN JA: I agree with the President.
LEEMING JA: I agree with Bell P.
[4]
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Decision last updated: 07 June 2021