Hassan v Sydney Local Health District

Court of Appeal (NSW)|2021-03-29|Before: Brereton JA, Fagan J

Solicitors: Makinson d'Apice Lawyers (Respondent) File Number(s): 2020/153031 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2020] NSWSC 475 Date of Decision: 05 May 2020 Before: Fagan J File Number(s): 2018/114499

[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.]

Should the applicant be required to show cause now, or later?

I address first whether the show cause hearing should proceed, or instead be deferred. As I understood it, Mrs Hassan's contention that it should be deferred was put on several bases: first, by way of reviewing the Registrar's order that it be set down for today, on the basis that there was some procedural unfairness involved; secondly, on medical grounds; and thirdly, that it should not proceed while Mrs Hassan's other motions are unresolved. Mrs Hassan confirmed that I correctly understood the nature of her application, though she added "and also to issue the subpoenas so I can put together the notice of appeal, the submissions, and all the evidence of why the court below was wrong and the Court of Appeal was wrong". [10]
There was no denial of procedural fairness in the making of the orders of 3 March 2021. At the directions hearing on 3 February 2021, the Registrar made a direction that Mrs Hassan file and serve her submissions by 24 February 2021, and indicated that if she did not do so, then on the next occasion the matter would be referred to a judge to consider whether the appeal should be dismissed for want of due despatch. The Registrar declined to allow until 24 March 2021, as sought by Mrs Hassan, to which she responded: [11] "APPELLANT: No, I'm not doing anyway. You can give me the 24th anyway I'm not doing any submissions. REGISTRAR: Well I am giving you three weeks to get your submissions on and if you choose not to do so that is a matter that you need to take responsibility for."
The matter was adjourned to 3 March 2021 for directions. On that occasion, Mrs Hassan said, in substance, that she could not prepare her submissions without the subpoenas that she sought. The Registrar suggested that she should proceed to prepare her submissions on the basis that she would not get the subpoenas. The Registrar said that he would afford her a further chance to file submissions, and that if she did not do so, the matter would go before a judge "to show cause". He suggested that she prepare her submissions. After hearing submissions from both parties, the Registrar concluded: [12] "REGISTRAR: Fine. You're going to have your day in front of a judge of appeal. It's going to be a day where you're going to have to show cause why your appeal shouldn't be dismissed, so the orders that I am going to make today are: 1. The appellant's submissions to be filed and served by 17 March. 2. The matter is stood over to 29 March to show cause why the appeal should not be dismissed. … 3. If the appellant has not filed submissions by 24 March, the appellant is to file and serve an affidavit by 25 March outlining the basis on which the appeal should not be dismissed for want of due dispatch [sic]. … 4. Registry notify parties. All right, so I strongly encourage you, Ms [sic] Hassan, to file your submissions so that you don't have to face a show cause hearing on 29 March. APPLICANT: Registrar, I didn't consent to all the orders you made and all the parties have to consent to orders, so I didn't consent, you just made the same order that you made in February."
The directions made on 3 March 2021 were confirmed to Mrs Hassan in an email of that date.
Mrs Hassan was therefore on notice, from the proceedings on 3 February 2021, that if her submissions were not filed, then on 3 March 2021 she might be required to show cause as to why the proceedings should not be dismissed. On 3 March 2021, she had an opportunity to make submissions as to why the matter should not be the subject of a show cause hearing. No dispositive order was made adversely to her on 3 March 2021. Her consent to the order was not required. There was no denial of procedural fairness in requiring her to file her submissions and appointing a show cause hearing for 29 March 2021.
As to medical grounds, Mrs Hassan said that she has post-traumatic stress disorder, but has decided not to see any doctor, and could not provide a medical certificate, because of her experiences with medical practitioners, though she could provide her most recent medical certificate after the hearing. I indicated that that might be too late, as evidence should be adduced at, not after, the hearing. Nevertheless, following the hearing, she emailed to my chambers a letter dated 4 November 2020 from Dr Zekrya to the Emergency Department of Calvary Hospital in the Australian Capital Territory, referring her for "an assessment and an input from the psych registrar in relation to self harm". It says nothing as to her capacity to conduct these proceedings.
Over the last six months, Mrs Hassan has been able repeatedly to compile lengthy motions, affidavits, and submissions. I am not satisfied that there is any current health obstacle to the preparation of her submissions, or to her being able to address the issues on the show cause hearing.
As to the pendency of her various motions, and her application for a stay of the proceedings, I have indicated that I propose to dispose in this judgment of all outstanding matters within my remit. That will leave outstanding, in substance, two issues: 1. the question of whether she will be permitted to adduce further evidence in the appeal, which will be a matter for the bench that ultimately hears the appeal; and 2. the question of whether she will be permitted to issue subpoenas, which is a matter currently before the full bench on the reconsideration application.
In substance, Mrs Hassan's position was that she wanted to have all necessary evidence before the appeal proceeded; there is a question as to the subpoenas outstanding before the full bench on the application for reconsideration; without the subpoenas, she cannot complete her submissions; therefore, the proceedings should be stayed, or at least the question of requiring her to show cause should be deferred, until after the full bench has decided the reconsideration application.
The pendency of the "new evidence" question is no reason why Mrs Hassan's submissions should not be prepared now. As the "new evidence" question is a matter to be addressed on the hearing of the appeal, and not at an interlocutory stage, it must be addressed in the written submissions before it can be known whether or not the Court will receive it.
Nor is the pendency of the possibility that the full bench might change its mind in respect of the subpoenas sufficient reason why the submissions should not be prepared now. It is, theoretically, conceivable that if the full bench, upon reconsideration, were to permit the issue of the subpoenas, they might elicit material which could be referred to in the written submissions. However, this could easily be accommodated by a supplementary submission.
Mrs Hassan's desire to have all the evidence she wants before the appeal proceeds is no reason to stay the proceedings, which she has instituted as the appellant. There is no sufficient reason to defer the show cause hearing.

The 16 March 2021 and 23 March 2021 motions

Apart from the application to adduce new evidence on appeal under UCPR, r 51.51 (paras 1 and 2 of the 16 March 2021 motion), the remaining substantial relief sought in the motions of 16 March 2021 and 23 March 2021 comprises the application for leave to issue subpoenas (para 3 of the 16 March 2021 motion), and the referral of numerous named persons associated with the Hospital to the Commonwealth Director of Public Prosecutions and the Police for perjury.
In connection with the former, when, as indicated above, I invited the parties to indicate whether there was any difficulty with proceeding in the sequence of issues I had proposed, Mrs Hassan raised the question of her subpoenas, which I explained was not and could not be before me. Nonetheless, in the course of the hearing, Mrs Hassan repeatedly referred to her application for leave to issue subpoenas, and I repeatedly endeavoured to explain that the question of leave to issue subpoenas was at this point a matter for the full bench on her application for reconsideration of the 23 December 2020 judgment, and could not be agitated before me. Although I requested that she not make submissions in support of an application to issue subpoenas, as it was not within my remit in the circumstances, she persisted in doing so. After I invited her to address the first issue - namely whether the show cause hearing should be deferred - she made lengthy submissions about the merits of her substantive case and the injustices said to have been done to her in the course of the proceedings, culminating in the following exchange: [13] "APPELLANT: … And I hope, your Honour, that you will have a look, serious look today at what I've provided and grant me leave to issue the subpoena because the three judge didn't have the new evidence that I provided and I hope that you change the rules that we can-- HIS HONOUR: I have explained to you I can't do that. You have an application for reconsideration by the three judges of their decision and they will decide that question. APPELLANT: Your Honour, it's not like only that. I got the new evidence that I filed 24 January that notice of motion with the affidavit and I have new evidence 9 February. HIS HONOUR: Well, you need to make a decision as to whether you want to pursue the application for review before the three judges or whether you want to discontinue that and make a fresh application. APPELLANT: It's they both. If you refuse one - your Honour, I'm not telling you what to do, that's your court and that's-- HIS HONOUR: No, I'm inviting you to make a decision as to whether you want to proceed before the three judges or whether you want to discontinue that application. APPELLANT: I wanted to go the new evidence, the new evidence that I filed notice of motion 24 January, 5 January. If you take the review you can take the review. HIS HONOUR: No, why don't you put that new evidence before the three judges? APPELLANT: I didn't have, your Honour, I've got 24 January and I've got 9 February. I didn't have those two new evidence. I had 29 June 2020, they didn't look and they ignored and Fagan J had the evidence of Idowu. HIS HONOUR: But that's what you're going to ask them to do on the reconsideration, to look at it. APPELLANT: Your Honour, I'm asking you to review. You say I'm not reviewing their decision of 29 June. The registrar and Judge Gleeson and the three judges, they had the affidavit 29 June 2020, your Honour. HIS HONOUR: And I understand you-- APPELLANT: Okay, we can leave that one, we can leave that one-- HIS HONOUR: Will you listen to me, please. I understand that you now have additional material so you can put that additional material before the three judges who are reviewing the decision about the subpoena, who are reconsidering their decision. APPELLANT: Your Honour, I'm not asking review of decision any more, I'm asking the new evidence that I put in March. HIS HONOUR: So are you going to discontinue your application for reconsideration by the three judges? APPELLANT: They can reconsider, yes, anything but I want your Honour you have a look my new evidence today because my notice of motion of the judges are 15 January and have nothing to do with mine of 24 January and 16 March and 23 March, that's the new evidence. HIS HONOUR: It has everything to do with it because you can put that new evidence before them on the reconsideration application. APPELLANT: That one I did it, your Honour, and that's 5 January. It's a separate. I've done that one, that they consider, they can dismiss as they used to, that's the separate, your Honour, that's the 5 January. If they say we keeping this decision and this notice of motion and we consider, that's up to them. But what I file 24 January it is to do with the notice of motion in January. HIS HONOUR: I'm quite concerned, Mrs Hassan, that I outlined to you at the beginning of this hearing how I proposed or how I invited you all to proceed. I outlined what the issues were, I made quite clear that this was not about issuing a subpoena and you have taken an enormous amount of time to culminate in a submission that I should grant you leave to issue a subpoena and I think you've misled me because the submissions you made were meant to be directed to whether the show cause hearing should proceed."
The application for leave to issue subpoenas seeks to reagitate the issue that has already been determined by the full bench, and is now again before the same full bench for reconsideration. To repeat that application by motion before the Registrar or a single judge in those circumstances is an abuse of process.
In connection with the application for orders referring persons for criminal investigation for perjury, Mrs Hassan submitted: [14] "APPELLANT: And the referral, and the referral to the DPP and the police, your Honour, I provided with my submission on the case recited and also I provided my notice of motion-- HIS HONOUR: Well, do you want me to deal with that application today? APPELLANT: Yes, your Honour. HIS HONOUR: Because-- APPELLANT: I would like you, I will beg you, your Honour, humbly to make that referral because you can't deal with that, your Honour, and what they've done is my health deteriorated, your Honour, because I'm dealing with their perjury preventing the course of justice and lying to the Court when they know I provided everything. Can you please, your Honour, I beg you to do that referral. HIS HONOUR: Well, if you want me to deal with the rest of that motion today then I will consider it but you need to understand that if I don't make the referral I will dismiss that part of the motion."
Ms Idowu indicated that she did not oppose my dealing with the balance of the motion of 16 March 2021. Mrs Hassan also asked me to deal with her 23 March 2021 motion, and when it was established that that motion substantially replicated the 16 March 2021 motion (except for the review of the 22 March 2021 orders, which was before the Court in any event), Ms Idowu concurred in that course.
If Mrs Hassan believes she has evidence of a crime, nothing prevents her from taking it to the Police (I note that she said that she had done so, and that the police declined to act, saying that it was "a civil matter" and that they would not act without a referral from the Court). While as an incident of its jurisdiction a court may, if it appears in the course of the proceedings before it that there is evidence of a crime, occasionally refer the papers, at the end of the hearing, to prosecuting authorities, that is not relief which a party to proceedings is entitled to seek from a court. Even less so is it appropriate to seek such relief by an interlocutory application in this Court, before the proceedings have been heard. The applications for orders of referral are entirely inappropriate, quite apart from any question of merit. They invoke this Court's jurisdiction for an improper purpose, and thus are also an abuse of process.
The other (essentially procedural) orders sought in the motions have been superceded by my hearing of both motions, and it is unnecessary or inappropriate to determine them.
Save for the application to adduce new evidence on appeal under UCPR, r 51.51 (paras 1 and 2 of the 16 March 2021 motion), which will remain on foot for consideration on the ultimate hearing of the appeal, the 16 March 2021 and 23 March 2021 motions should be dismissed.

Other issues

For completeness, I record a number of other submissions that were advanced by Mrs Hassan.
Mrs Hassan submitted that the Registrar has not considered her application under UCPR, rr 36.15 and 36.16, based on "the new evidence that I provided to the Court". [15] It was by no means clear what order was supposed to be the subject of an application under rr 36.15 and/or 36.16. If it was the judgment of Fagan J, then it was not a matter for the Registrar; an application for relief under rr 36.15 or 36.16 in connection with a judgment of the Common Law Division must be made to the Common Law Division. If it was the refusal of leave to issue subpoenas, then it is within the purview of the full bench on the reconsideration application. If the new evidence referred to is sought to be adduced on appeal, then that is a matter for the Court when it ultimately comes to hear the appeal.
Mrs Hassan repeatedly propounded a number of complaints about the proceedings before the trial judge. I repeatedly endeavoured to explain that these were matters to be agitated on the hearing of the appeal, not on the present hearing.
Mrs Hassan referred to aspects of the argument before the Registrar on 3 August 2020, on her application for leave to issue subpoenas, when the Registrar observed that affidavits were sought to be read, but that as the hearing was an administrative process, "I have not formally read those affidavits". [16] At one point, when he was interrupted in the course of delivering his reasons, the Registrar said "Ms [sic] Hassan if you are going to interrupt me again I'm going to put you on mute so please don't interrupt me". [17] I explained that any complaint about the Registrar's 3 August 2020 decision was a matter for her review application (which had involved a reconsideration, de novo, by Gleeson JA, and then a further review by the full bench).
Mrs Hassan submitted, in effect, that the full bench had wrongly treated her review application as an application for leave to appeal, when she had not sought leave to appeal. While it is true that the full bench made an order that in terms purported to dismiss an application for leave to appeal, it is clear from its reasons that it understood that it was dealing with an application for review under SCA, s 46(6) (and also an application under UCPR, rr 36.15 and 36.16), and that Mrs Hassan's appeal remains on foot.
Mrs Hassan submitted, as she had on earlier occasions before the Registrar, that on 18 January 2021, the Registrar had, without hearing her or making any directions on her motion of 5 January 2021 to set aside the judgment of the full bench, vacated that motion. I assured her that examination of the record confirmed that what had happened was that the return date of the motion was vacated on the direction of the full bench, the intention being that the full bench would consider the motion, including what, if any, directions to make in respect of it.
Mrs Hassan beseeched me to read her "new evidence", contained in Court Book volume 8 at pages 13 to 68. [18] Although I doubted that this was relevant to the issues before me, in deference to Mrs Hassan's submissions I have done so. This material comprises what appear to be hospital records of the Albury-Wodonga Hospital in respect of an unidentified patient (not Mrs Hassan) who, like Mrs Hassan, underwent a muscle biopsy for muscle atrophy. Mrs Hassan submits that this shows that such procedures are performed under local anaesthetic (not general anaesthetic), in the ward (not in a theatre), by a single general surgeon (not by an orthopaedic surgeon and team of nineteen), and thus that the procedure performed on her was irregular, involved surgery for a bone tumour which was intended for another patient, and that the extensive team of doctors supposedly involved in her case was for unauthorised research purposes. The material also includes various forms, including consent forms, which, as I understand it, Mrs Hassan submits tend to show that documents which should have existed (and been produced) in her case were not produced.
It may be observed that the manner in which a procedure is performed on one patient in one hospital does not mean that its performance in a different manner on another patient in another hospital is irregular. Nor does the absence of particular documents in connection with a procedure performed on one patient in one hospital mean that such documents did exist, or ought to have existed, in respect of the same procedure performed on another patient in another hospital; different hospitals and local health districts have differing practices as to the documentation they maintain.
In any event, whether this material should be received, on appeal, as further evidence, is a matter for the full bench that hears the appeal.

Should the appeal be dismissed for want of due despatch?

Mrs Hassan has failed, twice, to comply with a direction that she file and serve her submissions. She did not heed the Registrar's suggestion that she proceed to prepare her submissions on the basis that she might not be permitted to issue the subpoenas. She has also failed to take advantage of the additional time available to do so between 17 March 2021 and the hearing on 29 March 2021.
As indicated above, neither the pendency of the "new evidence" question, nor the pendency of the possibility that the full bench might change its mind in respect of the subpoenas, is sufficient reason why the submissions should not be prepared. If the full bench upon reconsideration were to permit the issue of the subpoenas, any evidentiary material which was obtained could be addressed by a supplementary submission.
There is no sufficient reason for Mrs Hassan's submissions not having been filed. Her response to the Registrar's direction was one of recalcitrance. She did not directly respond to my questions as to (1) why she could not prepare her submissions, as directed, while awaiting the outcome of her motion for reconsideration; and (2) when she could file her submissions. Instead of prosecuting the appeal, she is pursuing satellite litigation which is bordering on the vexatious, in her misconceived insistence that she needs the subpoenas in order to prepare her submissions. I propose to make a self-executing order which will have the effect of allowing her a further month to lodge her submissions, in default of which the appeal will stand dismissed.

Orders

The Court orders that: 1. Save for: 1. 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 2. the motion filed on 5 January 2021 which is currently before the full bench; all outstanding interlocutory applications be dismissed, with costs; 1. Unless by 21 June 2021 the appellant has filed and served her submissions in support of the appeal, the appeal be dismissed with costs; and 2. The proceedings be otherwise adjourned to 23 June 2021 before the Registrar for directions.

Endnotes

Hassan v Royal Prince Alfred Hospital [2019] NSWSC 1651 at [28] (Fagan J) ("Hassan v RPA").
Hassan v RPA at [29] (Fagan J).
Hassan v RPA at [40]-[42] (Fagan J).
Hassan v Sydney Local Health District [2019] NSWSC 1652 at [26] (Fagan J).
Hassan v Sydney Local Health District (No 2) [2020] NSWSC 475 at [43] (Fagan J).
Hassan v Sydney Local Health District [2020] NSWCA 195 at [22], [41], [43], [47]-[48], [50]-[51] (Gleeson JA).
Hassan v Sydney Local Health District (No 2) [2020] NSWCA 356 at [19]-[26] (Bell P; Basten JA and Leeming JA agreeing) ("Hassan (No 2) [2020]").
Hassan (No 2) [2020] at [26] (Bell P; Basten JA and Leeming JA agreeing).
Hassan (No 2) [2020] at [24]-[25] (Bell P; Basten JA and Leeming JA agreeing).
Tcpt, 29 March 2021, p5.36-38.
Tcpt, 3 February 2021, p8.01-06.
Tcpt, 3 March 2021, pp6.23-7.08.
Tcpt, 29 March 2021, pp20.02-21.29.
Tcpt, 29 March 2021, p27.15-34.
Tcpt, 29 March 2021, p4.15-21.
Revised Tcpt, 3 August 2020, p1.21-42.
Revised Tcpt, 3 August 2020, p2.13-14.
Tcpt, 29 March 2021, p15.07-08. 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: 20 May 2021

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