Qasim v Bird & Ors

Supreme Court of NSW|2022-03-10|Before: Davies J

Background

The plaintiff practised as an endocrinologist. In October 2010, five endocrinologists (including the sixth and seventh defendants) from the Hunter New England Health region made a complaint to the Medical Council of New South Wales outlining their concerns about the plaintiff's unsatisfactory professional performance and potential impairment. On 10 December 2010, the Medical Council informed the plaintiff that it had decided to hold a s 150 hearing under the Health Practitioner Regulation National Law 2018 (NSW) No 86a (the National Law).
In the hearing before the Council, the plaintiff was represented by MDA National Insurance Pty Ltd (MDANI). The first defendant, Sarah Bird, was the manager, Medico Legal Advisory Services of MDANI. MDANI appointed HWL Ebsworth to act for the plaintiff and to attend the s 150 hearing with the plaintiff. The second defendant, Susan Doherty, was the employee of HWL Ebsworth who attended the s 150 hearing with the plaintiff.
On 25 January 2011, the Medical Council determined to suspend the plaintiff's registration.
In December 2010, the subject matter of the concerns raised by the notification letter was referred by the Medical Council to the HCCC for investigation. After consultation between the Medical Council and the HCCC, the complaints against the plaintiff were referred to the Medical Tribunal. There were five complaints. Complaint 4 was: Dr Qasim suffers from an impairment. The impairment alleged is the practitioner has a physical and/or mental impairment, condition or disorder namely a paranoid or delusional disorder which is of sufficient nature and degree to impair the practitioner's mental capacity to practice (sic) the profession.

The defendants and the Notices of Motion

The defendants sued by the plaintiff, and their roles in the events set out are as follows: • The first defendant, Sarah Bird, was the manager, Medico Legal Advisory Services at MDANI at the time of the s 150 hearing; • The second defendant Susan Doherty was the employee of HWL Ebsworth who acted for the plaintiff at the s 150 enquiry; • The third defendant is Steve McNamee, said to be a principal of Slater & Gordon solicitors who was allegedly retained in relation to a complaint or notification made by a neighbour of the plaintiff in 2004; • The fourth defendant is Professor Don Chisholm who was a lay member of NCAT in the 2014 proceedings; • The fifth defendant, Professor Joseph Proietto, was an expert witness in the 2014 NCAT proceedings; • The sixth defendant, Professor Roger Smith, was one of the authors of the 2010 notification letter which led to the s 150 hearing; • The seventh defendant, Dr Shaun McGrath, was another endocrinologist and one of the authors of the 2010 notification letter. He also assisted the HCCC in the 2014 NCAT proceedings; • The eighth defendant, Michael Hall, is a senior counsel who appeared for the plaintiff in her appeal to the Court of Appeal in 2015; • The ninth defendant, Kate Richardson, was counsel for the HCCC in the appeal to the Court of Appeal in 2015; • The tenth defendant, Sharon Armstrong aka Sutherland, appears to be a neighbour of the plaintiff who is alleged to have made a vexatious notification, and was seemingly involved in the 2014 NCAT proceedings; • The eleventh defendant, Dennis Cowdroy, was the principal member of NCAT at the 2020 hearing; • The twelfth defendant, Dr Karen Arnold, was a professional member of NCAT at the 2020 hearing; • The thirteenth defendant, Dr Greg Fulcher, was a professional member of NCAT at the 2020 hearing; • The fourteenth defendant, Craig Bolger, was junior counsel appearing for the plaintiff in her appeal to the Court of Appeal in 2015; • The fifteenth defendant, described as "Member Garling" was Judge Garling who was the principal member of NCAT at the 2014 hearing.
Some, but not all, of the defendants have, on 29 October 2021, filed notices of motion seeking either to be removed as parties to the proceedings pursuant to r 6.29 UCPR, or seeking that the proceedings against them be dismissed pursuant to r 13.4 UCPR. The defendants referred to above in italics were those who had not filed notices of motion, and who did not take part in the present hearing.
In response to those notices of motion, the plaintiff, quite unnecessarily, filed a notice of motion on 2 November 2021 seeking that each of the defendants' motions be dismissed. This judgment concerns the defendants' notices of motion to which I have referred, and the plaintiff's notice of motion of 2 November 2021.
The plaintiff filed five affidavits. The first was sworn on 31 August 2021 and appears to have been the principal affidavit in support of the summons. The second affidavit sworn on 6 October 2021 related only to Professor Roger Smith. There were then two affidavits sworn on 13 October 2021. One of these concerned a Dr Samuels who appears to have been a witness at the 2020 NCAT hearing. The affidavit also made allegations against Mr Cowdroy. The second affidavit sworn on13 October 2021 related only to Dr Shaun McGrath. The fifth affidavit was sworn on 2 November 2021, and appears to have been sworn in support of the plaintiff's notice of motion of that date.
The plaintiff has also filed a large number of documents headed "Submissions" at various times. The plaintiff's notice of motion filed 2 November 2021 also contained submissions (described as "Particulars") concerning each of the defendants' notices of motion.
Before turning to each of the notices of motion, a few general comments can be made. First, the only defendant in respect of whom relief is sought in the summons is the tenth defendant, Sharon Armstrong. The relief sought is that "an arrest warrant be made against" her. That relief is entirely misconceived, and it should not have been included in the summons.
Secondly, prayer 2 in the summons appears to seek a review of the order of the Court of Appeal that the plaintiff pay the costs of the HCCC. Such a prayer for relief is also misconceived. If the plaintiff wishes to have a judgment of the Court of Appeal reviewed or set aside or overturned, application must either be made to the Court of Appeal or to the High Court by way of special leave application. A single judge in the Common Law Division of this Court has no power to review a judgment of the Court of Appeal.
Thirdly, prayer 3 seeks that a costs order be made against the HCCC, although that body is not named as a defendant in the proceedings. The prayer for relief is inappropriate and should not have been sought.
Finally, despite the relief which is actually sought in the summons, the material contained in the plaintiff's affidavits and her submissions suggests that the basis for the summons is the plaintiff's dissatisfaction with the results of the proceedings in NCAT and subsequently the Court of Appeal. Some, but not all, of the defendants are complained about in the plaintiff's affidavits and submissions. Allowing for the difficulties a litigant in person has in formulating claims and originating process, I endeavoured, unsuccessfully, to ascertain from the plaintiff what she wanted from the defendants and what causes of action she had against them. She indicated that she wanted damages but could not specify on what basis they ought to be ordered.
The plaintiff also asserted in relation to some of the defendants that they had committed crimes; at one point she mentioned s 319 of the Crimes Act 1900 (NSW) which is the offence of perverting the course of justice. When I pointed out to her that the proceedings she had commenced were civil proceedings, she said that they "could go into criminal proceedings". The approach I have taken is to assume that the plaintiff was seeking damages for negligence, because no other cause of action appeared to fit the plaintiff's complaints, particularly when she eschewed prerogative relief.

Legal principles

Rule 6.29 UCPR provides: 6.29 Removal of parties by order (cf SCR Part 8, rule 9; DCR Part 7, rule 9; LCR Part 6, rule 9) The court may order that a person - (a) who has been improperly or unnecessarily joined, or (b) who has ceased to be a proper or necessary party, be removed as a party.
Rule 13.4 UCPR Provides: 13.4 Frivolous and vexatious proceedings (cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3) (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).
Proceedings may be summarily dismissed if they disclose no arguable cause of action, are clearly untenable and are doomed to fail, if they are an abuse of process, or if they are frivolous and vexatious: General Steel Industries Inc. v Commissioner for Railways (1964) 112 CLR 125 at 128-129; [1964] HCA 69; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [15]; see also Shaw v State of New South Wales [2012] NSWCA 102 at [30]-[33].
In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, the plurality said at [57]: It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of the court's jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. (citations omitted)
In Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, a case concerned with s 31A of the Federal Court of Australia Act 1976 (Cth), French CJ and Gummow J quoted with approval at [24] what the High Court had earlier said in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99: The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.
In Paul Ernest Simmons v Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455, Hammerschlag J said at [62]: Whilst UCPR Pt 13 r 13.4 does not expressly provide (as does s 31A of the Federal Court of Australia Act 1976 (Cth)) that a proceeding need not be hopeless or bound to fail to have no reasonable prospects of success, the combination of the inclusion of the word reasonable and the operation of s 56(2) sufficiently clearly indicates, in my view, that the approach to exercising the power to dismiss under the rule is the same as that elucidated by the High Court in relation to the federal enactment.
The provisions of the Civil Procedure Act 2005 (NSW) do not warrant any result different from that indicated by the General Steel test; Shaw at [134].

The first defendant

In her notice of motion, the first defendant seeks an order pursuant to r 6.29 UCPR that she be removed as a party to the proceedings; alternatively, an order pursuant to r 13.4 UCPR that the claim be dismissed insofar as it makes any claim against her.
The evidence filed on behalf of the first defendant demonstrates that she has had involvement with the plaintiff on only two occasions. The first was in 2004 when she was employed as a medico-legal claims manager at MDANI. At that time, a neighbour of the plaintiff, a Mr Igra, had made a complaint to the Medical Board of New South Wales alleging that the plaintiff was not fit to practise medicine on the basis of her mental health. The plaintiff notified MDANI of that complaint. However, MDANI declined to act on behalf of the plaintiff because the complaint was not in relation to the provision of medical services. The first defendant wrote the letter to the plaintiff informing her of the fact that MDANI would not act.
The second occasion was in 2010 when the complaint was made by Professor Roger Smith and others which led to the s 150 hearing. At that time, the first defendant was the Manager of Medico-Legal Advisory Services at MDANI. MDANI acted for the plaintiff and engaged HWL Ebsworth to assist her. The first defendant was not involved in the appointment of HWL Ebsworth, nor did she have any personal contact with the plaintiff at that time.
No relief is sought against the first defendant in the summons. Further, the first defendant is not mentioned in the plaintiff's affidavits. Paragraph 22 of the affidavit of 31 August 2021 complains that MDANI did not provide cover in 2004 because the complaint was not related to the plaintiff's medical practice, and did not clear her name from Mr Igra's complaint. The paragraph also alleges that MDANI failed to read and make discovery (of what it does not say) within four years.
In her oral submissions, the plaintiff claimed that the first defendant was a party to the proceedings because she had not done her job in correcting what the plaintiff said were errors of the s 150 hearing, that the first defendant did not clear her name with the Medical Council, and she did not lodge an appeal on the plaintiff's behalf. Those submissions had largely been levelled at the second defendant in the plaintiff's written material, but nothing had been said about any of this in relation to the first defendant.
The first defendant has been improperly joined to proceedings. No claim is actually made against her, and nothing in the affidavit material points to there being any claim against her.

The second defendant

The second defendant seeks that the proceedings against her be dismissed pursuant to r 13.4 UCPR, alternatively, r 14.28 UCPR. The second defendant was the employed solicitor at HWL Ebsworth who attended at the s 150 hearing with the plaintiff.
In the first place, no relief is sought against the second defendant in the proceedings. In the plaintiff's affidavit of 31 August 2021, the complaints made against the second defendant are that she did not take notes at the s 150 hearing, that she spoke of her partner, a French chef, all day, and she took a "sickie" the next day.
The plaintiff filed a submission dated 12 October 2021 in which it is again alleged that the second defendant failed to take notes at the hearing. Further allegations were made in the submission (although not supported by evidence) that the second defendant failed "to prevent unprovoked aggression by the panel of the Medical Council against the plaintiff", and failed to file an appeal in the Supreme Court within 28 days of the hearing. There is a further allegation that the plaintiff and the second defendant caught a taxi after the hearing to go back to the city. The plaintiff complains that the second defendant did not call an ambulance for the plaintiff in circumstances where the second defendant is alleged to have believed that the plaintiff was hallucinating or having a breakdown. Despite this allegation, the plaintiff denied in her submission that she was hallucinating.
Even if any of these allegations was true, no loss would follow from them with the exception of the allegation of a failure to lodge an appeal within 28 days. However, there is no evidence that the plaintiff ever instructed the second defendant or HWL Ebsworth to file an appeal. Further, the subsequent decision of NCAT in 2014 to cancel the plaintiff's registration shows that there can be no causal relationship between the failure to lodge the appeal and the plaintiff's loss of her registration.
Finally, the complaints that are made concern events that took place in 2010. If the substance of the complaint against the second defendant is negligence (the only reasonably possible cause of action), it would be statute-barred by s 14 of the Limitation Act 1969 (NSW).
No reasonable cause of action is shown against the second defendant. The proceedings should be dismissed summarily pursuant to r 13.4 UCPR.

Fourth, eleventh, twelfth, thirteenth and fifteenth defendants

Each of these defendants was a member of NCAT and sat on the applications brought by the HCCC in 2014 or the Medical Council of NSW in 2020.
Given that those defendants were named as defendants in the summons and given that prayers 2 and 3 for relief concerned the HCCC and, at least, the NCAT proceedings in 2014, the Crown Solicitor acting for these defendants wrote to the plaintiff on 23 September 2021 saying that the plaintiff appeared to be seeking judicial review of the two NCAT decisions. The letter went on to say that the plaintiff should not have named the individual Tribunal members as defendants but should have named the other parties to the NCAT proceedings in accordance with r 50.5(1) UCPR, and should have named NCAT as a defendant pursuant to r 59.3 UCPR. In response, the plaintiff wrote saying that she was not seeking judicial review.
The Crown Solicitor's Office then filed a notice of motion on behalf of these defendants seeking that they be removed as parties under r 6.29 UCPR and that NCAT be joined as a defendant in their stead under r 6.27.
Clause 4 of Sch 2 to the Civil and Administrative Tribunal Act 2013 No 2 (NSW) provides: A member has, in the exercise of functions performed as a member, the same protection and immunities as a Judge of the Supreme Court.
In Robinson v State of New South Wales [2021] NSWSC 1571 at [48]-[59] I set out the principles associated with judicial immunity of judges of this Court. These defendants have the same immunity from suit by reason of their membership of NCAT.
It is not necessary to detail the complaints made by the plaintiff against the various members of the Tribunal. A number of those complaints are scandalous and should not have been made in court proceedings.
The fourth, eleventh, twelfth, thirteenth and fifteenth defendants should not have been joined to the proceedings. They are not proper parties, and an order should be made for their removal pursuant to r 6.29 UCPR. Since these are not judicial review proceedings, there is no basis for joining NCAT as a party.

The fifth defendant

The fifth defendant, Professor Joseph Proietto, was an independent expert witness in the 2014 NCAT proceedings. In his notice of motion, he has sought an order pursuant to r 6.29 UCPR that he be removed as a party to the proceedings, alternatively, that the proceedings against him be struck out pursuant to r 13.4 UCPR or r 14.28 UCPR.
The plaintiff swore a further affidavit on 6 October 2021 seemingly directed to the defendants Professor Roger Smith and Dr Proietto. Nothing in that affidavit or in the plaintiff's other affidavits makes any mention of Dr Proietto. He is referred to in some of the submissions filed by the plaintiff, and in the section of her notice of motion headed "Particulars".
In D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, the High Court said at [39]: From as early as the 16th century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps. That the immunity must be pleaded as a defence makes it nonetheless an immunity from suit. As the whole Court said in Lange v Australian Broadcasting Corporation: "The result [of the defence] is to confer upon defendants, who choose to plead and establish an appropriate defence, an immunity to action brought against them." (Citations omitted)
In Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268; [2007] NSWCCA 270, Beazley JA (with whom Mason P and Young CJ in Eq agreed) said: [41] The principle of immunity from suit was explained by Lord Mansfield in R v Skinner (1772) Lofft 54 at 56; (1772) 98 ER 529 at 530 as follows: "… neither party, witness, counsel, the jury, or Judge can be put to answer, civilly or criminally, for words spoken in office." [42] The existence of the general immunity is not in dispute. The issue in this case is the reach of its application. There is no doubt that the immunity protects a person from being sued as a result of evidence the person gives in proceedings. There is also no doubt that the immunity extends to protect persons from being sued in respect of out of court conduct, provided that that conduct is sufficiently connected with the proceedings. The swearing of an affidavit is an easily identifiable example: see D'Orta-Ekenaike v Victoria Legal Aid & Anor [2005] HCA 12; (2005) 223 CLR 1; Ollis v New South Wales Crime Commission [2007] NSWCA 311. …. [43] The rationale for witness immunity is generally stated as being founded in the promotion of two objectives: first, ensuring that witnesses are able to give evidence freely in an atmosphere avoid of threats of suit from disappointed litigants; and secondly, to avoid multiplicity of actions in which the evidence would be tried over again: see D'Orta-Ekenaike v Victoria Legal Aid at 17-20 [37]-[42]; Meadow v General Medical Council [2007] QB 462 at 476 [14]. [44] The immunity operates even if the evidence given by a witness is false: Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130. In that case, Ms Cabassi had brought proceedings against a Mr Ferrando, alleging assault. The proceedings were defended and Mr Ferrando called a number of witnesses to explain the circumstances in which Ms Cabassi had received the injuries of which she complained. The assault proceedings were dismissed. Subsequently, Ms Cabassi brought an action against Mr Ferrando and two of the witnesses in the assault proceedings, claiming they had conspired together for the purposes of injuring her by the giving of false evidence. [45] In dismissing the appeal, Rich ACJ explained the rationale underlying witness immunity at 139: "An action by the defeated party cannot … be maintained against a witness or witnesses for giving false testimony in favour of his opponent. Public policy and the safe administration of justice require that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint, excepting that imposed by the penalty for perjury. Though not a party to the former suit and judgment, the merits of that judgment cannot be re-examined by a trial of the witness' testimony in a suit against him. The procedure, if permitted, would encourage and multiply vexatious suits, and lead to interminable litigation." (Citations omitted) Starke J, commenting on this point, said at 140-141: "No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be ... the rule of law is that no action lies against witnesses in respect of evidence prepared, given, adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice. The remedy against a witness who has given or procured false evidence is by means of the criminal law or by the punitive process of contempt of court." (Citations omitted ) McTiernan J stated at 144-145: "It is a rule of law that no civil action lies at the suit of any person for any statement made by a witness in the course of giving evidence in a judicial proceeding. The rule, which is founded on public policy, is not confined to actions for defamation but applies to any form of action. … In spite of all that can be said against it, we find the rule acted upon from the earliest times. The mischief would be immense if the person aggrieved, instead of preferring an indictment for perjury, could turn his complaint into a civil action. By universal assent it appears that in this country no such action lies."
The plaintiff's case against Dr Proietto, as far as it can be ascertained from references made to him in her submissions, concerns evidence he gave before NCAT. Most of the references appear to be challenges to his medical opinions.
In those circumstances, the claim against his is not maintainable. In any event, any claim would be statute-barred.
Although the notice of motion filed on behalf of the fifth defendant seeks that he be removed as a party to the proceedings, I consider that the better course is to deal with his position pursuant to r 13.4 UCPR. I accept that no claim is made against him in the summons, but it is clear that the substance of what the plaintiff wishes to litigate arises out of his appearing as an expert witness before NCAT. In that way, he would be a proper party to the proceedings, but the proceedings would not be maintainable because no reasonable cause of action is demonstrated.
The claim against him should be dismissed.

The sixth defendant

The sixth defendant, Professor Roger Smith, was the lead author of the notification letter which brought about the s 150 hearing.
Section 237(1) of the National Law provides: (1) This section applies to a person who, in good faith - (a) makes a notification under this Law; or (b) gives information in the course of an investigation or for another purpose under this Law to a person exercising functions under this Law.
Although the plaintiff made a number of allegations alleging dishonesty and fraud in relation to the actions of Professor Smith (and for that matter, the seventh defendant who was also an author of the same letter) there was no evidence to support or justify the allegations in that regard. These allegations concerned letters written by the plaintiff to general practitioners being stolen and then used by Professor Smith in the 2010 notification letter.
Even if it were assumed that the letters which were annexed to the 2010 letter to the Medical Council came into their possession by unsatisfactory means (and I do not make any finding in that regard), the issues that the letter raises are serious issues which needed investigation. Ultimately the Medical Council upheld the concerns that had been raised. In their reasons for their decision to suspend the plaintiff's registration, the Council said: At the conclusion of the hearing, the delegates expressed their serious concerns about Dr Qasim's practice of medicine and in particular the content, nature and tone of the letters that she wrote to various GPs. The delegates were equally concerned about the overall tone and the lack of logic in both her written and oral responses before and during the hearing and reached the conclusion that Dr Qasim suffers from an impairment within the meaning of the Law. The delegates expressed their concerns about the care and safety of Dr Qasim's patients given the inappropriate and incorrect advice that she had given to GPs in her letters and her oral evidence to the hearing.
I am satisfied that the notification by Professor Smith was made in good faith, and that he is entitled to the protection offered by s 237 of the National Law. In any event, any claim against him would be statute-barred.
As with the fifth defendant, I consider that the better resolution of the sixth defendant's position is that an order be made pursuant to r 13.4 UCPR that the plaintiff's claim be dismissed, insofar as it seeks relief against the sixth defendant.

The seventh defendant

The seventh defendant, Dr Shaun McGrath was one of the doctors who signed the notification with Professor Smith to the Medical Council in 2010. In addition, he was a witness for the HCCC in the proceedings before NCAT in 2014. By his notice of motion he seeks an order pursuant to r 6.29 that he be removed as a party; in the alternative that the proceedings against him be dismissed pursuant to r 13.4.
The matters which I dealt with in relation to the fifth and sixth defendants are entirely apposite to the position of Dr McGrath. As a witness, he has immunity from suit; there is no evidence that the notification letter was not written in good faith; and any claim against him is statute-barred. In those circumstances, an order should be made dismissing the proceedings against him pursuant to r 13.4.

Costs

The fourth, eleventh, twelfth, thirteenth and fifteenth defendants sought a lump sum costs order. The first, fifth and sixth defendants initially sought indemnity costs, but then indicated that they would like to give consideration to making an application for a lump sum costs order. The second and seventh defendants sought only party/party costs, but then indicated that they may make an application for a lump sum costs order.
Accordingly, directions were made for the filing of evidence and submissions from any party seeking a lump sum costs order. Subject to what is contained in the material filed, including from the plaintiff, I will determine whether costs will be decided on the papers, or whether the proceedings will be listed for further oral submissions. The question of costs of all of the notices of motions will be reserved.

Conclusion

I make the following orders: 1. In relation to the first defendant's notice of motion filed 29 October 2021: 1. Order that the first defendant be removed as a party to the proceedings pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005 (NSW); 2. Reserve the question of costs. 1. In relation to the second defendant's notice of motion filed 29 October 2021: 1. Dismiss the proceedings against the second defendant pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) 2. Reserve the question of costs. 1. In relation to the notice of motion filed by the fourth, eleventh, twelfth, thirteenth and fifteenth defendants on 29 October 2021: 1. Order that the fourth, eleventh, twelfth, thirteenth and fifteenth defendants be removed as parties to the proceedings pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005 (NSW); 2. Reserve the question of costs. 1. In relation to the fifth defendant's notice of motion filed 29 October 2021: 1. Dismiss the proceedings against the fifth defendant pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW); 2. Reserve the question of costs. 1. In relation to the sixth defendant's notice of motion filed 29 October 2021: 1. Dismiss the proceedings against the sixth defendant pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW); 2. Reserve the question of costs. 1. In relation to the seventh defendant's notice of motion filed 29 October 2021: 1. Dismiss the proceedings against the seventh defendant pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW); 2. Reserve the question of costs. 1. In relation to the plaintiff's notice of motion filed 2 November 2021; 1. Dismiss the motion; 2. Reserve the question of costs.

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: 17 March 2022

Uniform Civil Procedure Rules 2005(NSW)rr 6.27, 6.29, 13.4, 14.28, 50.5, 59.3

Crimes Act 1900(NSW)s 319

HCA 4 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268; [2007] NSWCCA 270 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 General Steel Industries Inc. v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 Health Care Complaints Commission v Qasim [2014] NSWCATOD 42 Paul Ernest Simmons v Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Qasim v Medical Council of NSW [2020] NSWCATOD 136 Qasim v Medical Council of New South Wales [2021] NSWCA 173 Robinson v State of New South Wales [2021] NSWSC 1571 Shaw v State of New South Wales [2012] NSWCA 102 Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 Texts Cited: Nil Category: Procedural rulings Parties: Shaheen Qasim (Plaintiff) Sarah Bird (First Defendant) Susan Doherty (Second Defendant) Steve McNamee (Third Defendant) Don Chisholm (Fourth Defendant) Joseph Proietto (Fifth Defendant) Roger Smith (Sixth Defendant) Shaun McGrath (Seventh Defendant) Michael Hall (Eighth Defendant) Kate Richardson (Ninth Defendant) Sharon Armstrong aka Sutherland (Tenth Defendant) Denis Cowdroy (Eleventh Defendant) Karen Arnold (Twelfth Defendant) Greg Fulcher (Thirteenth Defendant) Craig Bolger (Fourteenth Defendant) Member Garling (Fifteenth Defendant) Representation: Counsel: In person (Plaintiff) S Maybury (First Defendant) J Duncan (Second Defendant) T Allchurch (Fourth, Eleventh, Twelfth, Thirteenth & Fifteenth Defendants) N Regener (Fifth & Sixth Defendants) T Saunders (Seventh Defendant)

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