LINDSAY v HEALTH CARE COMPLAINTS COMMISSION

(3) The costs of today will be costs in the proceedings.

(4) The appeal and the summons are stood over to Monday, 10 August 2009 at 9.15 for further directions.

CATCHWORDS: APPEAL - procedure - application to sever issues - complaints about conduct of counsel - whether separate hearing would promote just, quick and cheap resolution of real issues - LEGAL AID - legal assistance schemes - referred to pro bono panel - Uniform Civil procedure Rules 2005 (NSW) Pt 7, Div 9

Civil Procedure Act 2005 (NSW), s 56 LEGISLATION CITED: Medical Practice Act 1992 (NSW), s 90 Supreme Court Act 1970 (NSW), ss 43, 46, 69 Uniform Civil Procedure Rules 2005 (NSW), rr 4.15, 7.33, 28.2, 51.1, 51.18, 101, Pt 7, Div 9, Pt 28, Div 2

CASES CITED: Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602

PARTIES: David Charles Lindsay (Appellant) Health Care Complaints Commission (Respondent)

COUNSEL: Self-represented Appellant P Griffin (Respondent)

SOLICITORS: Self-represented (Appellant) Health Care Complaints Commission (Respondent)

LOWER COURT JUDICIAL OFFICER: Judge Walmsley - Deputy Chairperson, Dr V Sutton, Dr P Anderson, Ms A Collier

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40290/08

15 June 2009 David Charles LINDSAY v HEALTH CARE COMPLAINTS COMMISSION (NO 2)

Judgment 1 BASTEN JA: On 30 April 2009 I gave leave to the appellant to take two steps:

(a) file and serve a summons under s 69 of the Supreme Court Act 1970 (NSW) seeking relief presently identified in the further amended notice of appeal, but involving claims with respect to procedural unfairness and related issues which are not in substance complaints about any decision of the Tribunal with respect to a point of law, and

(b) file a second further amended notice of appeal removing such grounds as are properly dealt with under the summons and any other material he does not seek to pursue. 2 A summons has been filed, but it is not in proper form. The relief sought is merely a copy of the orders made by me on 30 April, and is not directed to the decision of the Medical Tribunal which he seeks to challenge. The second further amended notice of appeal, filed on 3 June, demonstrates no attempt to comply with the directions. It has expanded from 38 pages to approximately 143 pages. Nothing appears to have been removed. 3 Mr Griffin, who appeared for the Commission, handed up a document which sought to summarise the grounds of appeal, excluding what might best be described as extraneous material. It does not purport to reproduce the grounds verbatim, but might be treated as a lawyer's attempt to summarise that which was sought to be raised. The appellant had not had an opportunity to consider it in detail and there is no suggestion that it is to be treated in any sense as his document. Nevertheless, following the appellant's numbering, the document runs to 68 paragraphs, although there is a degree of repetition and overlap, but also some separation within paragraphs into different grounds. 4 My own assessment, based upon the notice of appeal filed by the appellant on 3 June 2009 is that:

(a) numerous grounds, which could only legitimately be described as allegations of procedural unfairness, remain in the notice of appeal;

(b) there is a large amount of extraneous material, which should not properly be there, and

(c) very few of the grounds are formulated in a way which brings them within s 90 of the Medical Practice Act 1992 (NSW). 5 In relation to the notice of appeal, there has been no attempt to state "briefly, but specifically, the grounds relied on in support of the appeal": Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 51.18. Each of the documents raises a question as to whether the Court should either strike the pleading out or order that the document be taken off the Court file, pursuant to r 4.15. However, the Commission sought to have the matter addressed in a different way. Mr Griffin made oral application for part of the grounds to be disposed of separately and before addressing the remainder of the grounds in both the notice of appeal and summons. 6 The basis for this application was that counsel for the Commission appearing before the Medical Tribunal, being Ms Adamson SC and Mr Griffin, were subject to allegations with respect to their conduct. A selection of the allegations includes the following:

(a) the Commission's barristers used "psychological techniques and games" to assess mental illness in Court;

(b) the Commission's barristers sought to influence a medical practitioner whilst in the witness box by "smiling at him, using facial and hand gestures, and other methods of signalling approval and disapproval after each answer he gave, to the point that he looked to them before and after important answers to questions";

(e) acting out of "a personal hatred for the appellant" and screaming at the appellant in the course of the proceedings. 7 In the summons, there are a number of similar allegations at paragraphs 42-45 under a heading referring to Ms Adamson. While, at least for the most part, no express reference is made to Mr Griffin by name, he correctly inferred that his position was similar to that of Ms Adamson. Each of them was, accordingly, required to give consideration to r 101 of the New South Wales Barristers' Rules, which provides in part: "A barrister who has reasonable grounds to believe that there is a real possibility that the barrister may cease to be solely a disinterested advocate by becoming also a witness in the case or a defender of the barrister's own personal or professional conduct against criticism must return the brief as soon as it is possible to do so without unduly endangering the client's interests …." 8 There are exceptions, including where the barrister believes on reasonable grounds that the allegations have been made in order to remove the barrister from the case; no exception is readily available in the present circumstances. Accordingly, whilst the allegations are maintained, either in the notice of appeal or in the material supporting the summons, both Ms Adamson and Mr Griffin are likely to return their briefs, thus requiring the Commission to seek alternative counsel, who will not have had the benefit of preparation for and appearance in, the Medical Tribunal hearing, which ran for some 39 days. 9 Pursuant to Pt 28, Div 2 of the UCPR, orders may be made for the decision of any question separately from any other question and before "any trial" in the proceedings: r 28.2. In appropriate circumstances, that provision may apply to proceedings in the Court: r 51.1(3). 10 At first blush, the Commission's application is attractive. It would appear to provide a mechanism "to facilitate the just, quick and cheap resolution of the real issues in the proceedings", pursuant to s 56(1) of the Civil Procedure Act 2005 (NSW). However, experience suggests that such an appearance may be deceptive. For a number of reasons, I do not propose to take the step suggested. 11 First, as the Commission accepts, it will have to brief new counsel to deal with the grounds sought to be addressed separately. Secondly, it is by no means clear that a clean separation can be achieved. As the appellant explained, and as must be an essential part of his case if the conduct of counsel is to be relevant to his challenge to the decision of the Tribunal, there is a close connection between the allegations against counsel and the complaints about the manner in which the Tribunal (and in particular its Chairperson) handled the proceedings. Thirdly, it is by no means self-evident that, even if the Commission were entirely successful in having all allegations about the conduct of its counsel removed from the proceedings, counsel would regain a position of disinterest. Apart from anything else, any ruling the Court might make on such matters would remain a potential basis for a special leave application to the High Court through the remainder of the proceedings in this Court. 12 Having rejected that application, it is apparent that the Commission will almost inevitably need to brief alternative counsel and that those counsel will need to become familiar with the proceedings. Accordingly, there is likely to be some delay before the Commission is in a position to indicate how it wishes the proceedings to be addressed. 13 If I had been minded to accede to the application, it would then have been necessary to determine whether the application could be dealt with by a judge of the Court, pursuant to s 46 of the Supreme Court Act or whether it required a court constituted by three or more judges, pursuant to s 43. There may have been a further question as to whether, if a single had power to deal with such an application, it would have been appropriate to deal with the matter in that way. In the circumstances, these questions do not arise and need not be further addressed. 14 As already indicated, there remain significant problems with the notice of appeal, the summons and the four volumes of material which accompany the summons. In addition to the matters referred to above, the following matters may be noted:

(a) although the material accompanying the summons includes reference to the transcript before the Tribunal, relevant pages of the transcript, in their original form and without comment, have not been included;

(b) there is no indication as to whether the accompanying material, or any of it, was constituted by exhibits before the Tribunal;

(c) to the extent that the supporting material was not in evidence before the Tribunal, it has not been put on before this Court in appropriate form. 15 There is no doubt that the appellant would benefit from the assistance of counsel in redrafting his pleadings, in preparing appeal books and the preparation of evidence in support of the summons. Although he was anxious to explain the difficulties he has had with solicitors (and possibly counsel) in the past, he did not reject the suggestion that he might benefit from professional assistance. Such assistance may be made available pursuant to a Court appointed referral for legal assistance: UCPR, Pt 7, Div 9. The purpose of the Division is "to facilitate, where it is in the interests of the administration of justice, the provision of legal assistance to litigants who are otherwise unable to obtain assistance": r 7.33(2). I am satisfied that the various limbs of that purpose will be furthered by such an order in the present case. 16 Although I do not have evidence of these matters before me, I am satisfied by the explanations given by the appellant that he has exhausted his financial means to pay for legal assistance and is no longer able to obtain assistance from his professional insurer. Both the length of the complaint and the time taken to dispose of the proceedings in the Tribunal demonstrate that they are complex and require an understanding of the scope of judicial review and the limits of an appeal under s 90 of the Medical Practice Act. (A similar course was taken in Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602 by Brereton J.) 17 On the basis of these matters, I am satisfied that it is in the interests of the administration of justice that the appellant be referred to the Registrar for referral to a barrister on the pro bono panel for legal assistance. At the present time, the referral should be limited to:

(a) assistance in preparing a further amended notice of appeal and summons under s 69 of the Supreme Court Act ;

(b) assistance in preparing an index for the necessary appeal books, and

(c) assistance in settling affidavits to the extent that further evidence is sought to be adduced before this Court in support of the summons. 18 Given the steps to be taken by both parties, it is not appropriate to give further directions in the management of these proceedings at this stage. I propose to relist the matter for further directions on Monday, 10 August 2009. The parties are directed to take such further steps as they are able within that period of eight weeks and to be in a position to identify further directions required on that day. Each party will have liberty to apply so that the matter may be brought back earlier if the expeditious disposition of the proceedings would be assisted by that course. 19 Accordingly, subject to any further comment from the parties, I would propose the following orders:

(1) The oral application of the Commission to have issues relating to the conduct of its counsel dealt with separately from the remainder of the proceedings is dismissed.

(2) Pursuant to UCPR Pt 7, Div 9, the appellant is referred to the Registrar for referral to a barrister on the pro bono panel for legal assistance with the following matters: (a) preparing a further amended notice of appeal and summons under s 69 of the Supreme Court Act ;

(b) preparing an index for the necessary appeal books, and

(c) settling affidavit evidence to be adduced in support of the summons.

(3) The costs of today will be costs in the proceedings.

(4) The appeal and the summons are stood over to Monday, 10 August 2009 at 9.15 for further directions.

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