John v Health Secretary in respect of Ambulance Service of NSW

The Application for Leave to Appeal and Appeal

1. The grounds of appeal, as set out in the Application for Leave to Appeal and Appeal (Application), are narrow. In terms, the grounds are: "I'm appealing the decision on the grounds that it was harsh considering my mental health and medication at the time of the incident."
2. The reasons why leave to appeal should be granted, also in the Application, were set out as: "I request leave to appeal as evidence I had supplied to the commissioner, namely 2 letters from the same doctor that I have been a patient of for 13 years, was disallowed. The medication I was taking had a serious and dramatic effect on my life and my actions and formed part of my defence." [Reproduced verbatim.]
3. It is helpful to record at this point that the appellant had tendered into evidence in the hearing before Commissioner Sloan two letters from her treating general practitioner, Dr Vimal Chand: one dated 20 November 2022 and the other dated 10 July 2023. The earlier letter was admitted into evidence, however the letter of 10 July 2023 was excluded by Commissioner Sloan, after hearing arguments from the parties.
4. In the Application, the appellant sought leave to introduce further evidence in the appeal: "I initially included 2 doctors letters bu would like to introduce my whole medical records from Astley medical centre" [Reproduced verbatim.]
5. In her Outline of Submissions filed on 12 October 2023 (AOS), the appellant set out that she sought to rely on further evidence relating to medication she had been prescribed and had previously taken, but which she had subsequently ceased to use. Her submission set out the basis for seeking to rely on the further evidence as follows: "I have recently obtained further medical documentation that directly relates to my use of Effexor and the subsequent behavioural and cognitive changes I experienced while taking and withdrawing from the medication. This evidence includes medical records, assessments, and expert opinion from well documented sources. These documents provide significant insights into the impact of Effexor on my mental and emotional well-being during the relevant period. Extended Withdrawal Symptoms: The medical evidence establishes that Effexor withdrawal can lead to a range of severe and prolonged symptoms, including but not limited to mood swings, aggression, and impaired decision-making. These symptoms often persist for an extended period beyond the cessation of the medication. The evidence demonstrates a strong correlation between the onset of these symptoms and my alleged misconduct. Causation and Mitigation Factors: The medical evidence I seek to introduce will provide a compelling argument that the unusual and aggressive behaviour, as well as the poor-decision making that led to the findings of serious misconduct, were directly influenced by my use of Effexor and the subsequent withdrawal process. It is essential to consider this new evidence to establish a clear link between my actions and medications effects."
6. In the AOS, the appellant listed various submitted symptoms of depression, and of withdrawal from the drug Effexor, and referenced what appear to be various scientific papers or articles concerning these symptoms. Attached to the AOS was a purported copy of the appellant's medical records held by Astley Medical Centre, at which Dr Chand apparently practices, and a copy of notes apparently prepared by a psychologist employed by the respondent during the period 15 December 2020 through to 29 January 2021.
7. In the Appellant's Response to Respondent's Outline of Submissions (ARS), the appellant somewhat contradictorily submitted that she does not "identify an error in [C]ommissioner's Sloan's decision to exclude" Dr Chand's letter dated 10 July 2023, but that her "GP's letter would have provided critical evidence relevant to [her] mental health and [her] actions at the time of the 'anti-lockdown' protest. The exclusion of this evidence could be considered a denial of procedural fairness and merits further review by the Full Bench."
8. From what was set out in the Application, the AOS and the ARS, the Full Bench understood the appellant to seek to: 1. have the whole of her medical record held by her general practitioner, Dr Vimal Chand, and the notes prepared by the respondent's psychologist, admitted into evidence, in circumstances where, save for letters from Dr Chand dated 20 November 2022 (which was admitted into evidence) and 10 July 2023 (which was excluded from the evidence) the appellant did not seek to tender such records at first instance; 2. have certain statements in the AOS and/or the scientific papers and articles referred to therein, as to the effects of depression, and the effects of withdrawal from the drug Effexor, admitted into evidence in circumstances where the appellant did not seek to rely on this material at first instance; and 3. have the Full Bench set aside the Decision: 1. because Commissioner Sloan wrongly: 1. excluded from evidence Dr Chand's letter of 10 July 2023; and/or 2. determined that the dismissal was not harsh; or 1. in reliance on the weight of the further evidence, or at least some of it, because the dismissal was in fact harsh.
9. No challenge was made to the Decision in so far as it found the dismissal was not unreasonable and not unjust.

Appeals

1. Pursuant to s 187(1) of the IR Act, appeals may be made to a Full Bench of the Commission against a decision of a single member of the Commission. Pursuant to s 188 of the IR Act, such an appeal may be made only by leave of the Full Bench.
2. Section 191 of the IR Act sets out the nature of an appeal to a Full Bench of the Commission: 191 Nature of appeal (1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against. (2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against. (3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received.

Principles to apply on leave to introduce further evidence

1. Section 191(2) of the IR Act provides two circumstances in which a Full Bench may receive further evidence, and only by leave in either case. The further evidence upon which the appellant seeks to rely does not concern matters occurring after the Decision, and so the appellant must persuade the Full Bench that special grounds exist to receive the further evidence.
2. Further evidence may consist of 'fresh evidence' or 'new evidence'. Fresh evidence is evidence which either did not exist at the time of the hearing, or, if it did, could not have then have been discovered by the exercise of reasonable diligence: R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 at [63] (Kirby J, Mason P and Levine J agreeing), cited with approval by McClelland CJ in CL in Wood v The Queen [2012] NSWCCA 21; 84 NSWLR 581 at [707]. New evidence on the other hand is evidence that was available and not adduced at the hearing.
3. A review of the authorities reveals the following relevant principles to the granting of leave to adduce further evidence: 1. the power to allow further evidence on appeal is exercised rarely and in exceptional circumstances only: CCH Australia Ltd v Bowen (1998) 79 IR 206 at 211; 2. the Full Bench is ultimately concerned to avoid a miscarriage of justice: Bowen at 211, such that it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist: Atkins v National Australia Bank (1994) 34 NSWLR 155 at 160 (Clark JA); Electrical Contractors Association New South Wales v Electrical Trades Union of Australia, New South Wales Branch [2003] NSWIRComm 404 at [81];
4. Two further tests have guided Full Benches in appropriate cases. Cognisant of the overarching principles set out at [20] above, and that the question to be addressed is whether special grounds exist, we consider these further tests to be of assistance in the matter before this Full Bench: 1. the further evidence must be of such credibility and cogency that there is a high degree of probability that there would be a different outcome: Atkins at 160; Electrical Contractors at 81; and 2. the explanation for the further evidence not having been adduced at the hearing must be compelling, e.g. it is shown that the evidence could not have been obtained for use at the trial with reasonable diligence: Atkins at 160; Electrical Contractors at 81.
5. Decisions that have considered what will constitute 'special grounds' within the meaning of s 191(2) have frequently referred expressly to 'fresh' evidence: see e.g. Bowen at 211 and Electrical Contractors at [75], [76] and [81], although s 191(2) will permit the receipt of 'new' evidence if the Full Bench considers that there are compelling and exceptional reasons why evidence which was available at the time of the hearing was not adduced, so as to constitute alone or with other factors, special grounds permitting the grant of leave to receive such further new evidence.

Application to receive further evidence.

1. As is set out at [14(1)] and [14(2)] above, in her written submissions, the appellant sought to have two categories of further evidence received by the Full Bench.
2. The first of these categories was the medical records held by her general practitioner, one letter excluded from the evidence by Commissioner Sloan and notes of a psychologist employed by the respondent. The second was certain statements in the AOS and/or the scientific papers and articles referred to therein, as to the effects of depression, and the effects of withdrawal from the drug Effexor.
3. Certain parts of the appellant's medical records were referenced in, and attached to, the AOS. Given what was set out in the Application, it had been understood by the Full Bench that what was attached to the AOS was her complete medical record.
4. During oral submissions in respect of the application for leave to adduce further evidence, the appellant took the Full Bench to what she submitted was a crucial entry in her medical record. It became apparent that that entry was only partly captured in the material attached to the AOS. It also became clear at this point that only portions of the appellant's medical records held by Astley Medical Centre had been attached to the AOS.
5. As the appellant was self-represented, the Full Bench invited her to seek leave to amend her application for leave to adduce further evidence so as to include the whole of the particular entry in the medical records upon which she relied, in addition to those parts of her medical record attached to the AOS.
6. The appellant explained from the bar table that she had experienced difficulty in formatting and printing an electronic copy of her medical records in order to file the records with her appeal documents. This difficulty, according to the appellant, had resulted in the mistaken omission of part of the specific record she wished to have the Full Bench receive as further evidence.
7. The respondent opposed the appellant having leave to amend her application to include the remainder of the particular medical entry, on the basis that counsel for the respondent would have prepared the case differently, although he did not explain in what way.
8. As for the second category of further evidence the appellant sought leave to introduce, none of the scientific papers and articles referred to in the AOS as to the effects of depression, and the effects of withdrawal from the drug Effexor, had been filed or served. The Full Bench understands this was due to a lack of understanding of procedure on the part of the appellant.
9. Following questioning from members of the Full Bench, the Full Bench ascertained that the appellant particularly wished to adduce a 64-page report titled "Psychiatric drugs create violence and suicides, school shootings and other acts of senseless violence" and material from a website called "Mental Health Daily".
10. The appellant submitted that the 64-page report was published by an organisation called the Citizens Commission on Human Rights International, which she described as "a mental health industry watchdog".
11. The appellant's submissions did not provide the website's URL, nor did she take the Full Bench to any specific pages or material on the website on which she sought to rely.
12. Noting s 163 of the IR Act, and the unorthodox manner in which the appellant's application to adduce further evidence proceeded, during the hearing the Full Bench had regard to the website of the organisation which states that it "… was co-founded in 1969 by the Church of Scientology …".
13. It was accepted by the appellant that both the report and the website existed prior to the hearing before Commissioner Sloan.
14. In circumstances where the appellant had not filed and served the report or a copy of the information from the website (or any of the additional material referred to in her AOS), the Full Bench considered whether the appellant should be permitted to amend her application for further evidence to also include this additional material, notwithstanding that no reference had been made to it in the Application.
15. The Full Bench determined to grant leave to the appellant to amend her application for further evidence to include the whole of the specific medical entry to which she had taken the Full Bench in her submissions, but did not permit her to amend her request for further evidence to include the report, the website or any other further material that was not put before the Full Bench and served on the respondent.
16. We, like the Full Bench in Regan v Commissioner of Police (No 2) [2023] NSWIRComm 1097 at [3], are guided by the observations of the Court of Appeal in the Court of Appeal in Hamod v State of New South Wales & Anor [2011] NSWCA 375 at [309]-[312]: "309 Courts have an overriding duty to ensure that a trial is fair... The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented. … 310 However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. … 311 Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case. … 312 Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised... Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial... The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant."
17. While the Full Bench accepts that the appellant, as a self-represented litigant, did not understand that she needed to file and serve copies of all further evidence she sought to adduce on appeal, her failure to do so resulted in clear unfairness to the respondent who, without knowing the content of the material to be relied upon or its provenance, was not in a position to determine whether the material could or should be received as further evidence pursuant to s 191 of the IR Act. The medical record entry fell into a slightly different category as the appellant's desire to adduce it, as part of the totality of her medical records, was flagged in the Application and a partial copy of the entry had been served with the AOS.
18. The Full Bench then invited the parties to address the appellant's application that the Full Bench should receive the now established categories of further evidence.
19. To the extent that the appellant sought leave to adduce the letter of Dr Chand dated 10 July 2023, this is not 'further evidence' within the meaning of s 191(2). The letter was tendered, but not admitted into evidence by Commissioner Sloan. As set out at [55] - [60] below, the Full Bench has concluded there was no error by Commissioner Sloan in excluding this letter. The other letter dated 20 November 2022 was admitted and self-evidently did not persuade Commissioner Sloan to find in favour of the appellant.
20. The case the appellant sought to make on appeal was that at the time she attended the anti-lock down protest which led to her dismissal, she was suffering from depression and/or withdrawal symptoms due to having ceased to take Effexor and that this explains her allegedly uncharacteristic behaviour and that in these circumstances her dismissal was harsh. To that end she sought to tender her medical records and 'evidence' as to the effects of depression and of withdrawal from Effexor.
21. There are four reasons why the Full Bench was not persuaded to grant leave to permit the further proposed evidence to be received.
22. First and foremost, it is apparent that all the proposed further evidence was available and could have been obtained in advance of the hearing before Commissioner Sloan.
23. The appellant's explanation as to why she did not obtain and tender the evidence during the initial hearing was that she thought the doctor's letters she tendered during the proceedings before Commissioner Sloan would have been sufficient to establish her case. Having not succeeded on that basis, she had made efforts to obtain more and better evidence in preparation for this appeal.
24. It is unfortunate that, as a self-represented litigant, the appellant may have misunderstood the evidence needed to prevail in her application, but this alone is not a basis to permit further evidence on appeal. To allow the receipt of further evidence on this basis would effectively permit the appellant to re-run her case on appeal. As s 191(3) of the IR Act makes clear, the Full Bench cannot substitute its own decision on the matter, but must only intervene if it finds error in the decision below. An appeal to the Full Bench is not a hearing de novo. An appeal does not mean that the primary decision is laid to one side in order to provide the appellate with an opportunity to lead 'better' evidence than what was lead previously, in the hope that a different outcome will occur.
25. Second, the proposed evidence regarding the effects of depression and withdrawal from Effexor was not a form that would be admitted by the Commission. While pursuant to s 163 of the IR Act the Commission is not bound by the rules of evidence and may inform itself on any matter in any way it considers to be just, the Commission must ensure fairness to the parties and to that end it will have regard to the provisions of the Evidence Act 1995 (NSW). The appellant did not establish that she has specialised knowledge within the meaning of s 79 of the Evidence Act such as to permit her statements as to the effects of depression and of withdrawal from Effexor to be admitted as evidence to prove those effects. Reference to scientific papers or articles does not cure this difficulty, particularly where copies of the papers and articles were not provided and the appellant was in any event not qualified to interpret and explain them.
26. Third, the evidence in the form provided, if admitted, would be very unlikely to lead to a different outcome in the absence of evidence from a suitably qualified person so as to enable the Commission to find that there was a causal nexus between the symptoms the appellant claims to have been experiencing and the precise conduct which led to her termination. Expressed another way, even if the Commission were to accept that she was experiencing symptoms which adversely impacted her decision-making and behaviour, independent expert evidence would be necessary before the Commission could be satisfied to the requisite standard that those symptoms were a material cause of the appellant's behaviour at the relevant time.
27. Fourth, and related to the earlier reasons and in circumstances where the appellant's mental health was a factor addressed in the Decision and the further evidence was available at the time of the hearing, the appellant has not established any basis for concluding that refusing leave to introduce further evidence will result in a miscarriage of justice.
28. It is apparent to the Full Bench, from the totality of the Application, the AOS, and the ARS, that the appellant seeks to re-run the same case as she ran at first instance, but with more detailed evidence. That is not a basis to receive further evidence.
29. The Full Bench concludes that no special grounds exist to receive further evidence.

Principles on leave to appeal

1. The principles on leave to appeal are well settled and have been set out in many decisions of the Commission, including recently in SafeWork NSW v Lipman Pty Ltd [2023] NSWIRComm 1034, Secretary of the Department of Education v Williams [2023] NSWIRComm 1098 and Regan v Commissioner of Police (No 2) [2023] NSWIRComm 1097.
2. The Full Bench in Regan, at [10], summarised the considerations as: 1. an appeal under the Act is an appeal in the strict sense, and the Full Bench will only intervene to correct error or where there has been a demonstrable failure by the primary decision-maker to properly exercise the discretion afforded to them: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 at [10]; 2. leave will not be lightly or automatically granted, unless substantial issues of principle or law are raised, or there are otherwise wider implications for the jurisprudence of the Commission or the proper administration of justice: Fraser v Commissioner of Fire and Rescue NSW [2022] NSWIRComm 1026 at [18]; and 3. where an appeal primarily challenges finding of fact, leave will rarely be granted: Lambert v Commissioner of Police [2023] NSWIRComm 1071 at [16].
3. We adopt and apply these principles in our determination as to whether leave should be granted.

Leave to appeal

1. The reasons why leave to appeal should be granted, as articulated in the Application, are set out at [6] above. In the AOS, the appellant did not address why leave should be granted. In the ARS the appellant submitted: "C Appellants basis for leave 6. I seek leave to appeal based on the exclusion of my treating GP's letter dated 10th July 2023. I do not identify an error in commissioner Sloan's decision to exclude this letter. Still, it is important to consider the exclusion and whether it affected the fairness of the proceedings. 7. I argue that my GP's letter would have provided critical evidence relevant to my mental health and my actions at the time of the 'anti-lockdown' protest. The exclusion of this evidence could be considered a denial of procedural fairness and merits further review by the Full Bench. 8. Commissioner Sloan's decision to exclude the letter is a matter of desertion. However, it is important to assess whether this discretion was properly exercised, particularly when it pertains to a central issue io the case." [Reproduced verbatim.]
2. The Full Bench determined to proceed on the basis that the appellant's case was that Commissioner Sloan's decision to exclude Dr Chand's letter of 10 July 2023 was wrong in law. This takes the appellant's case at its highest, and despite the express submission of the appellant in the ARS.
3. In her oral submissions the appellant developed her case somewhat, submitting that Dr Chand had been her doctor for 13 years, and so knew her and her medical history well. She submitted that by not admitting the letter, Commissioner Sloan had failed to properly take into account mitigating circumstances for her behaviour.
4. The respondent's submission on leave to appeal was that far from that exclusion not being open to Commissioner Sloan, exclusion of the 10 July 2023 letter was the correct decision for him to have made.
5. Dr Chand's letter of 10 July 2023 was short. It relevantly stated: "In 2021, Ms Sally Ann John was under a lot stress ors (sic) in life: … 4. She was coming off an antidepressant medication that played a part in her decision making and wrong decision (sic) in life. She is remorseful and regret (sic) her decision making at the time of the incident in 2021 that resulted in termination."
6. The transcript of the ruling made by Commissioner Sloan is as follows: "I am concerned that the letter from Dr Chand of 10 July 2023 seems to be evidence in reply to submissions made by the respondent. Ms John was informed that if she sought to rely on this document, Dr Chand would be required for cross-examination. There is no evidence that prior to Friday of last week Ms John sought to have Dr Chand attend. On one level the conclusion expressed by Dr Chand at para 4 in his letter to which the respondent takes objection might be dealt with on a question of weight in that it is based upon assumption and it is not immediately apparent that it is relevant to the events of 24 July 2021. However, if the document has little weight, it argues in favour of accepting the objection which the health secretary has raised to the document going into evidence at all. Having such a conclusion presented without reasoning and without Dr Chand being available to explain his reasoning I think exposes the respondent to a hardship that would not be overcome simply by a ruling that I would accord the evidence such weight as it deserved. On that basis I will not accept into evidence the document at p 26 of the applicant's second bundle. It will be excluded from the evidence.'"
7. As the respondent submitted, it is not necessary or appropriate for the Full Bench to find that Commissioner Sloan made the correct decision. It is sufficient that the decision to exclude the evidence was one which was within the remit of the Commissioner's discretion. No error in the exercise of his discretion of the kind described in House v The King [1936] HCA 40; 55 CLR 499 has been articulated, let alone established.
8. As the respondent submitted, "[it] cannot be said that the Commissioner's decision to exclude the letter constituted a 'demonstrable failure … to properly exercise the discretions afforded to [him]'."
9. The appellant made no submission that the appeal otherwise raises substantial issues of principle or law or has wider implications for the jurisprudence of the Commission and the none are apparent to the Full bench.
10. As with the appellant's application to introduce further evidence, the appeal is an attempt to re-run the same case as she ran at first instance, but in this case before a differently constituted Commission. That is clearly not the function of an appeal pursuant to s 188 of the IR Act.
11. There is no basis on which leave should be granted.

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: 30 November 2023