Windsor v Health Care Complaints Commission

The Tribunal's decision

1. The Tribunal found that the particulars of Complaint 1 had been established, but concluded that Complaint 1 itself had not been made out: at [46]. This was because the Tribunal was not able to determine on the balance of probabilities that Dr Windsor has an induced delusional disorder or another medical disorder which makes her vulnerable to paranoia and/or delusions or is otherwise impaired as alleged by the Commission: at [45].
2. The Tribunal found that Complaint 2 had been made out (at [54]), giving three reasons:

• Dr Windsor had demonstrated diminished control over her autonomy, diminished insight into her professional obligations to regulatory authorities and diminished insight into and capacity to respond to the adverse effects of her personal relationship with Mr Windsor to her professional obligations: at [48];
• Dr Windsor had, without reasonable excuse, refused to attend the appointment with Dr Samuels on 16 September 2016 and made no subsequent attempt to provide the Council with health information it had indicated that it had required: [51]; and
• Dr Windsor, by reason of s 145F of the National Law, did not have sufficient physical or mental capacity to practise the health profession in which she is registered: at [53].

1. The Tribunal also found that Complaint 3 had been made out and Dr Windsor was unsuitable to hold registration as a general practitioner, given its finding on Complaint 2 that Dr Windsor is not currently competent to practise as a general practitioner within the meaning of s 149C(1)(a) of the National Law: [57].
2. As indicated, the Tribunal cancelled Dr Windsor's registration on 1 October 2019.

Proceedings in this Court

1. On 12 February 2020, this Court dismissed an application by Mr Windsor challenging the decision of Barrett AJA on 18 November 2019 refusing Mr Windsor leave to appear for Dr Windsor at the hearing of her application for expedition of the appeal and a stay of the Tribunal's orders pending appeal: Windsor v Health Care Complaints Commission (No 1) [2020] NSWCA 16. The Court also dismissed Dr Windsor's application for expedition and for a stay: Windsor v Health Care Complaints Commission (No 2) [2020] NSWCA 18.
2. Although Dr Windsor did not appear at the hearing of the appeal, I am satisfied that she had notice of the hearing. First, a Notice of Listing of the appeal on 30 April 2020 was given to Dr Windsor by the Registrar by letter dated 11 December 2019. Second, there is evidence in the form of an affidavit of Mr Shah affirmed 23 April 2020, that Dr Windsor has been served with the Appeal Books which were prepared by the Commission. Third, given the current COVID-19 pandemic, the parties were given notice of the option of appearing at the hearing of the appeal either by way of an audio visual link or by telephone. Dr Windsor failed to appear by either of the notified facilities, despite the relevant court login and telephone details having been provided to Dr Windsor by email dated 28 April 2020 (MFI 1).
3. At the commencement of the hearing, the Associate to the presiding judge attempted to contact Mr Windsor by telephone to ascertain if Dr Windsor intended to appear; he was described as Dr Windsor's agent on the documents filed by Dr Windsor. That attempt was unsuccessful; a pre-recorded message stated that Mr Windsor's mobile phone was either switched off or not available.
4. In the absence of oral argument from Dr Windsor, counsel for the active respondents indicated that they relied upon their written submissions. The Tribunal, which was joined as third respondent, took no part in the hearing having filed a submitting appearance, except as to costs. The Court reserved its judgment and has based its decision on the written materials before the Court.

The grounds of appeal

1. Dr Windsor was unrepresented before the Tribunal and again in this Court. Her amended notice of appeal contained ten grounds but did not identify with any precision grounds limited to questions of law. The amended notice of appeal, including annexures, is a lengthy 73-page document containing much material of an irrelevant or impermissible character. For example, under the heading "Details of Appeal", the following appears: 3. In giving its purported reasons for its Decision, the all Jew/Jewish Tribunal J: (d) Intentionally subverted the judicial process to psychoanalytically induce (in the minds of inadequately informed Gentile supreme court judges and Gentile judicial officers) purported symptoms indicative of a tribe-cooked designer mental disorder (folie à deux) modeled (sic) on a real, ubiquitous, tribal psychopathic delusional disorder of criminal genocidal nature as amply evidence in the following über quotes. [Emphasis in original.]
2. Dr Windsor's written argument identified 43 issues in a Table of Grounds. This does not serve as a substitute for the proper articulation of the grounds of appeal, as required by Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.18(1)(e).
3. Keeping in mind the requirement that the appeal grounds must identify a question of law, it is convenient to address the grounds in the following order: 1. whether the Tribunal's decision involved a want of procedural fairness because it was affected by actual or apprehended bias on the part of one of its members; 2. whether the Council erred by suspending Dr Windsor's registration on 23 September 2016; 3. whether the Tribunal erred when exercising its discretion not to: 1. grant leave to appear to Mr Windsor (under s 165J(2) of the National Law and r 32 of the NCAT Act); 2. allow Dr Windsor to issue summonses for production of documents by way of her applications dated 7 April 2019 and 13 May 2019; 3. dismiss the complaint brought by the Commission pursuant to s 55 of the NCAT Act; 1. whether the Tribunal erred the manner in which it dealt with the complaint. (1) Allegation of bias
4. Grounds 1(b) and 2 assert that the decision of the Tribunal on 1 October 2019 was affected by actual or apprehended bias for two reasons: first, that the Tribunal's decision involved "total bias and partiality" because "only 11 consecutive lines" from Dr Windsor's written submission were quoted in the Tribunal's reasons, and second, that one of the members who constituted the (earlier) Tribunal on 1 February and 1 March 2019 - Dr Brian Morton - was also a member of the Medical Council.
5. As the High Court explained in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 (Concrete), questions of bias should be addressed first. That is because the necessary result, if bias is established, is a retrial: Concrete at [2]-[3] (Gummow ACJ), [117] (Kirby and Crennan JJ), [172] (Callinan J).

Apprehended bias - relevant principles

1. The test for recusal is whether a fair-minded lay person, with knowledge of the matters relied upon by Dr Windsor, might reasonably consider that the decision maker, here the Tribunal, might not carry out its functions with an impartial and unprejudiced mind: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]-[13]; Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [6]; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 (Michael Wilson) at [31]; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 94 ALJR 140. The test for apprehension of bias is objective. It does not require an assessment of the state of mind of the decision maker in question, as is necessary on an inquiry about actual bias: Michael Wilson at [33].
2. The application of the apprehension of bias principle involves two steps. The first is to identify what it is said might lead the decision maker to decide a case other than on its legal and factual merits. The second is to articulate the logical connection between the circumstances identified in that matter and the apprehension that the case might not be decided on its merits: Ebner at [8]; Michael Wilson at [32]-[33]; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [139]; Isbester v Knox City Council (2015) 255 CLR 135; [2019] HCA 20 at [21].
3. Accordingly, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker might not bring an impartial mind to bear upon the issues that are to be decided. The question is not whether the decision maker had in fact prejudged an issue: Michael Wilson at [67].

Actual bias - relevant principles

1. In Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]-[73] (Gleeson JA, Emmett JA and Tobias AJA agreeing), the following summary of principles was stated: [68] A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) (Sun v Minister) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited. [69] Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127]. [70] As Gleeson CJ and Gummow J observed in that case at [71]: "The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion." [71] In the same case, Hayne J noted at [185] the several distinct elements underlying the assertion that a decision-maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case. [72] His Honour observed at [186] that allegations of actual bias through prejudgment often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded. [73] The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 at 437 [33]. However, actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs (Bilgin v Minister) (1997) 149 ALR 281 at 289-290 per Finkelstein J; Sun v Minister at 127 per Burchett J and 135 per North J. As Finkelstein J said in Bilgin v Minister at 290: "The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point insofar as the validity of the decision is concerned."

Consideration

1. The first complaint by Dr Windsor is directed to the Tribunal's reasons at [42], which are set out in full below, together with [43] for context: [42] We find that Dr Windsor did indicate, in the interview on 6 September 2016, that she believed that her phone was bugged. We rely on the panel's record of the interview. Also, behind Tab 1 of Volume 1 of 'The Respondent's Written Submissions' there is an 'unofficial transcript' of the interview on 6 September 2016 which records, on p 68, the following exchange, which supports this finding: THE CREATOR (Mr Windsor): Ok, I'll just tell you one small thing. I hope you at least have enough empathy to understand. Today's technology allows private corporations and government agencies and to spy on people, by hacking into their smart phones, computers and even smart TVs. I am not talking about me, you or Dr Windsor. This applies to everyone who uses smart phones, computers and smart TVs. Because of the Website, the kind of political issues, and discoveries I write about on the Website, I have become a target. I won't be surprised if what's happening in this room is under surveillance. Dr Friend: And, you believe any of this? [Turning her face towards Dr Windsor] Dr Windsor: [Nod] or yes. [43] We find that Dr Windsor did leave the interview at the behest of Mr Windsor. We believe the report of that interview prepared by the panel over subsequent accounts given by Dr Windsor.
2. The finding by the Tribunal that Dr Windsor "nodded" or agreed that she believed her phone was bugged was open to the Tribunal on the evidence. That the Tribunal did not accept Dr Windsor's subsequent accounts does not mean that the Tribunal prejudged the issue or failed to decide the matter impartially. An allegation of actual bias through prejudgment is not made out. Nor is there any basis for finding apprehended bias on the part of the Tribunal applying the principles stated above. Dr Windsor failed to identify anything that might lead the Tribunal to decide the matter other than on its legal and factual merits.
3. The second complaint by Dr Windsor is directed to Dr Morton and involves a question of apprehended, not actual, bias. It can be accepted that Dr Morton's membership of the Medical Council was incompatible with his acting as a member of the first Tribunal at the hearings held on 1 February and 1 March 2019. That conclusion is also indicated by the fact that s 165B(6) of the National Law provides that a member of the Medical Council is ineligible to sit on the Tribunal. Dr Morton should be regarded as disqualified by the appearance of bias on the ground of interest or association, rather than prejudgment: Carver v Law Society of New South Wales (1997) 43 NSWLR 71, 99, 101 and 102.
4. However, this complaint goes nowhere. The defect in the constitution of the Tribunal on 1 February and 1 March 2019 was acknowledged by the Tribunal when the parties were informed on 20 March 2019 that a fresh Tribunal would need to be empanelled. That then occurred.

(2) Challenge to Medical Council's decision to suspend Dr Windsor's registration

1. Ground 3(e) asserts that the Council breached its statutory duty in suspending Dr Windsor's registration. The relief claimed in the amended notice of appeal includes an order setting aside the suspension by the Council of Dr Windsor's registration (Order 5(a)) and an order that the Council rectify its records (order 5(g)).
2. There is an initial question as to whether the appeal against the suspension by the Council is incompetent. Relevant to this question are the procedural courses available to a registered medical practitioner to challenge a suspension by the Council under s 150. The medical practitioner may: 1. apply to the Council under s 150A of the National Law for review of the suspension decision; 2. appeal to the Tribunal under s 159(1)(a) of the National Law against a suspension by the Council under s 150. Such an appeal is a full "merits review" proceeding by way of a new hearing with both the practitioner and the Council being entitled to adduce fresh evidence: National Law, s 159(3); 3. appeal to the Tribunal with respect to a "point of law" under s 159B(1) of the National Law; 4. apply to the Supreme Court for judicial review under s 69 of the Supreme Court Act 1970 (NSW), but not until an appeal under s 159B in respect of the point of law concerned has been made and disposed of: National Law, s 159B(4).
3. Dr Windsor only took the first course of applying to the Council under s 150A for review of the suspension. Her application was unsuccessful: see [32] above. Dr Windsor did not appeal to the Tribunal against the suspension by the Council, either under s 159(1)(a) of the National Law, or with respect to a "point of law" under s 159B(1) of the National Law. Given the latter circumstance, the precondition to seeking judicial review of the Tribunal's decision was not satisfied.
4. Not having sought relief in the Tribunal appealing the suspension by the Council under s 150 of the National Law, Dr Windsor has no right to seek such relief in this Court. The appeal against the suspension by the Council is incompetent.
5. Further, as the Council correctly submitted, there is no practical utility in Dr Windsor now seeking to challenge the suspension by the Council. This is because the subsequent decision of the Tribunal to cancel Dr Windsor's registration operates in place of any suspension imposed by the Council: Kirby v Dental Council of NSW at [14].

Other matters

1. Grounds 3(b), (c), (d), (f), (g), (h), (k) and (l) assert that the Council breached its statutory duty in dealing with the complaint against Dr Windsor specifically in conducting a health interview on 6 September 2016, in requiring Dr Windsor to undergo an examination by Dr Samuels on 16 September 2016, in holding the s 150 hearing, and in conducting the internal review under s 150A. The challenge to the direction by the Council under s 145E that Dr Windsor undergo an examination by Dr Samuels is addressed below at [96]-[98]. None of the other matters referred to in these grounds is relevant to the Tribunal's decision to cancel Dr Windsor's registration.

(3) Challenge to interlocutory decisions of Tribunal

1. Grounds 1(a) and (c), 4(a) and (b) and 8 challenge the Tribunal's exercise of discretion with respect to certain interlocutory decisions.

Ground 4(a): Refusal to grant leave to appear to Mr Windsor

1. Dr Windsor challenges the Tribunal's refusal of applications by Mr Windsor to appear on behalf of the appellant on 8 May 2019 and 18 June 2019.
2. On 8 May 2019, in giving ex tempore reasons for refusing Mr Windsor's application to appear on behalf of Dr Windsor, Deputy President Judge Cole said: Having considered the matter, I have decided to refuse your application, Mr Windsor. The fact that you were involved in the events leading up to Dr Windsor's suspension means that you may be a witness, and that is at Dr Windsor's choice in relation to the application. You may have relevant information which would lead you to be a witness in the case, and it is well-established that an advocate cannot be a witness. It is by the giving of sworn evidence that the tribunal is informed of facts, not by assertions from the bar table, and I take it from all of your submissions that you wish to put what you consider to be factual matters before this tribunal by means of you making assertions from the bar table, sometimes in cross-examination. That is not the way that these proceedings run. That is not the way any legal proceeding is run. An advocate should not also be a witness, that is well-established. Further reasons for refusing your application are that you have - and I think you conceded - used insulting and inappropriate language in correspondence with the commission and the Medical Board of New South Wales, and on some interpretations of that language it could be taken to be threatening, though I understand that you have a different interpretation of it. From what you have said today and from documentary material, it is very clear to me that you do not accept the limited compass of the issues in this matter, that you wish to frame them within what you see as a much larger factual context which would go very far beyond the jurisdiction of this tribunal. For that reason, your involvement would lengthen and make much more expensive these proceedings, in a way that does not enhance the deciding of them. For those reasons it is my decision that you do not have sufficient knowledge of the issues in dispute, I wish I really meant understanding of the issues in dispute, to enable you to represent the applicant effectively before the tribunal, and I also find that you do not have the ability to deal consistently, fairly and honestly with the tribunal and other persons involved in the proceeding.
3. On 18 June 2019, the Tribunal gave the following reasons for refusing to allow Mr Windsor to appear on behalf of Dr Windsor at [38]: Dr Windsor did not appear at any of the directions hearings leading to the second hearing. On most occasions, Mr Windsor attempted to appear for Dr Windsor. Given his involvement in the events leading up to the complaint, the absence of any training which would equip him to advise Dr Windsor in a manner likely to assist her and his plain desire to use the proceedings to expound his theories and beliefs, Mr Windsor was not given leave to represent Dr Windsor. The Tribunal requested Mr Windsor to inform Dr Windsor that it was desirable that she engage with her professional regulator and in the proceedings.

Grounds 4(b) and 8: Refusal to allow Dr Windsor to issue summonses

1. Next, Dr Windsor challenges the Tribunal's decision refusing to allow Dr Windsor to issue summonses by way of application dated 7 April 2019. That application was heard by the Tribunal on 8 May 2019 at which Mr Windsor attended and Dr Windsor did not appear. Short oral reasons were given by Deputy President Judge Cole refusing that application: HER HONOUR: Thank you. I'm going to deal with the summons more generally than that. Documents 28 to 31 which are sought from the Tribunal, it is not appropriate to seek documents from the Tribunal. I need an application for a summons. The use of the word, "genuine", I think relates to Mr Windsor's belief that the documents that he has been provided with are not genuine. So this is really a repeat of requests that he has made which has been, I think, 15 satisfied, as to documents 28, 29 and 30. So I won't make any orders with respect to those. As to document 31, it's not clear to me how that could possibly be relevant to this proceeding. The documents sought from the Health Care Complaints Commission has just been dealt by you, Mr Mathur, and I will not deal with them further by way of an order as they have been 20 provided voluntarily. As to documents 1 to 23, this matter has in fact already been heard and the transcript is available and has been provided as I understand it, to both parties. In those circumstances, it seems to me that it is unlikely that any of these documents would be required for the fair hearing of the proceedings that are to come and I decline to make any further orders. So 25, I'm refusing the application. Should Dr Windsor wish to renew it, then she may contact the registry and ask for the matter to be listed. In which case, we can revisit the issue if she wishes to renew an application. That is, make a fresh application.
2. Dr Windsor also challenges the decision of the Registrar of the Tribunal on 17 May 2019 refusing Dr Windsor's further application for the issue of summonses. The Registrar gave brief written reasons for refusing that application. Six of the summonses were refused on the ground that the relevance of the documents sought in the summons had not been established. The seventh summons, relating to the Commission, was refused on the ground that it was not compellable.

Grounds 1(a) and (c): Failure to summarily dismiss the complaint brought by the Commission

1. Finally, Dr Windsor contended that the Tribunal erred by not dismissing the complaint brought by the Commission pursuant to s 55(1)(b) of the NCAT Act. Section 55(1)(b) provides that the Tribunal may dismiss at any stage any proceedings before it, if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance.
2. According to the submission, Dr Windsor's "unwavering assertive position from the very beginning", is that the complaint should have been summarily dismissed. The Tribunal may be taken to have rejected this submission, given its decision to cancel Dr Windsor's registration.

Consideration

1. The definition of "interlocutory decision" in NCAT Act s 4 includes, relevantly, the issue of a summons (sub-par (c)); the summary dismissal of proceedings (h); and the granting of leave for a person to represent a party to proceedings (sub-par (h1)). As indicated, Dr Windsor has not sought leave to challenge the interlocutory decisions referred to above: NCAT Act, Sch 5, Pt 6, cl 29(6).
2. In addition to the difficulty of not having sought leave, it is well established that parties who seek to challenge a discretionary interlocutory decision, such as the types of decision in issue here, face a difficult task. Appellate intervention will be warranted only upon the principles stated in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40. In Micallef v ICI Operations Australia Pty Ltd [2001] NSWCA 274 at [45], Heydon JA (Sheller JA and Studdert J agreeing) accepted that to succeed it was necessary for an applicant challenging such a decision to establish that the decision-maker: (a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or gave insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
3. There is a further difficulty in challenging the decision of the Tribunal refusing to issue summonses and refusing to grant leave to represent a party. That these decisions are decisions on a matter of practice and procedure means that this Court should be slow to interfere and ought not reverse the Tribunal's decision unless convinced that it is plainly erroneous: Adam v P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39. It has been said that "such appeals are, appropriately kept on a tight rein": State of New South Wales v Mulcahy [2006] NSWCA 303 at [3] (Bryson JA).
4. Dr Windsor has not established that there is any basis that conforms with the principles on which this Court could, or should, intervene.

(4) Whether Tribunal erred in law in dealing with the complaint

1. Dr Windsor contended that the Tribunal erred in the manner in which it dealt with the complaint. As will be seen, some of these grounds are repetitive of matters already dealt with, some do not raise a question of law, some are based on irrelevant or impermissible material and the balance are not made out.

Ground 1

1. Ground 1(a), (b) and (c), including the particulars in (d) and (e), has already been addressed: see [50]-[59], [72]-[77] above.

Failure of the Tribunal to expedite matters

1. Ground 1(f) asserts that the Tribunal breached its duty to expedite matters, referring to cl 11(1) of Sch 5D ("Proceedings before Professional Committees or the Tribunal [NSW]") of the National Law. Clause 11(1) provides that it is the duty of a Committee or the Tribunal to hear inquiries and appeals under this law and to determine those inquiries and appeals expeditiously.
2. In addition to the difficulty that this complaint does not identify any question of law, the procedural chronology of the complaint before the Tribunal referred to at [34]-[38] above makes plain that there is no substance in the contention that the Tribunal did not determine the matter expeditiously.

Failure to address evidence and arguments

1. Grounds 4(c), 5(c) and 7(c) asserts that the Tribunal erred by failing to consider Dr Windsor's written submissions and evidence. Presumably the asserted error of law is the asserted failure to give adequate reasons.
2. The Tribunal was required to give reasons for its decision: National Law, s 165M(2)(c). The reasons given were adequate: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273, 280-281. The reasons set out the findings on material questions of fact, referred to evidence and other material on which the findings were based and articulated the reasons for making the order under s 149C(1) cancelling Dr Windsor's registration: National Law, s 165M(2). Contrary to Dr Windsor's contention, the Tribunal did consider Dr Windsor's written submissions and evidence, to which reference was made in the Tribunal's reasons at [40] and [42].
3. To the extent that much of the material in Dr Windsor's submissions comprised allegations and contentions by Mr Windsor, there was no necessity for the Tribunal to address matters raised by Mr Windsor which were not relevant to the Tribunal's decision-making function. As the Tribunal found at [40]: Much of the material filed relates to Mr Windsor's theories and beliefs, which [are] very far from being mainstream theories and beliefs. In some of the documents, Mr Windsor refers to himself as "The Creator".
4. Ground 4(b)(iii) asserts that the Tribunal erred in not giving reasons for refusing to allow the issue of summonses dated 7 April 2019. This complaint is misconceived. The Tribunal gave brief reasons for its decision: see [70] above. The brevity of the reasons reflected in large part the brevity of the argument advanced before the Tribunal by Mr Windsor as to why 31 categories of documents were sought by Dr Windsor from the Council, Dr Samuels, Dr Arnold and Dr Friend, the Commission, Hornsby Hospital and the Tribunal itself. The reasons given by the Tribunal were adequate; particularly taking into account the decision was a decision on a matter of practice and procedure.
5. Ground 4(b)(iv) asserts that the Tribunal failed to consider an application to review and set aside the decision on 8 May 2019 refusing to issue summonses. This complaint is misconceived. The Registrar dealt with the further application on 17 May 2019, which was dismissed: see [71] above.

Ground 3

1. Ground 3 asserts that the Tribunal erred in law by failing and/or refusing, without giving reasons, to decide a number of "material questions of law having a decisive impact on the judicial outcome in the Tribunal. The matters identified assert breaches of statutory duty by the Council and the Commission and others.
2. The alleged breaches of statutory duty by the Council have been addressed at [60]-[65] above.
3. As to the alleged breaches of statutory duty by the Commission, none of the matters referred to in ground 3(a), (i), (j), (k) and (l) were relevant to the hearing of the complaint by the Tribunal. The Tribunal's jurisdiction is primarily protective in nature, rather than punitive: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. In the exercise of functions under a NSW provision of the National Law, the protection of the health and safety of the public must be the paramount consideration: National Law, s 3A. The Tribunal's function with respect to the complaint was to consider and determine whether any of the grounds of the complaint had been made out and if so, what, if any, protective orders should be made under the National Law, such as cautioning, reprimanding or counselling the practitioner under s 149A, imposing a fine on the practitioner under s 149B, suspending or cancelling the practitioner's registration under s 149C. None of the questions identified in ground 3 relating to the Commission are relevant to these matters and a failure to answer an irrelevant question was not an error of law by the Tribunal.
4. One further matter should be mentioned. To the extent that ground 3 asserts improper conduct by the Council, the Commission, the Tribunal and certain individuals (described in Dr Windsor's submissions as "individual tribe members (or tribal assets)"), the allegations are without evidentiary foundation.

Ground 4

1. Ground 4 asserts that the Tribunal committed six errors of law. The first concerns the refusal to grant leave to Mr Windsor to appear for Dr Windsor (ground 4(a)). The second concerns the refusal of Dr Windsor's applications for the issue of summonses dated 7 April 2019 (ground 4(b)). The two grounds have been addressed at [67]-[71] and [74]-[77] above. The third concerns the asserted failure by the Tribunal to consider Dr Windsor's "comprehensive rebuttal" based on relevant evidence and law (ground 4(c)). This has been addressed at [82]-[84] above.

Asserted error in allowing inadmissible evidence

1. The fourth matter concerns the alleged reliance by the Tribunal on an earlier complaint against Dr Windsor in 2015 which was discontinued (ground 4(d)). Reference was made to s 51(1) of the HCC Act which provides that evidence of anything said or of any admission made during the conciliation process is not admissible in any proceedings before a court, tribunal or body. Presumably the asserted error of law would be formulated as the admission of inadmissible material.
2. This complaint is misconceived. The Tribunal's reasons at [4] under the heading "Background" referred to the earlier complaint against Dr Windsor in 2015, noted that the investigation of this complaint was discontinued and expressly stated that "this incident is not the subject of complaint in these proceedings" [emphasis added]. The Tribunal did not admit into evidence anything said or any admission made during the conciliation process (if any) relating to the earlier discontinued complaint. There has been no breach of the prohibition in s 51(1) of the HCC Act.

Asserted errors in the construction of s 145E and s 145F

1. The fifth matter concerns the Tribunal's findings that:

• it was reasonable for the Council to require Dr Windsor to attend the appointment before Dr Samuels, pursuant to s 145E of the National Law: at [50]; and
• Dr Windsor's refusal to attend the examination by Dr Samuels, without reasonable excuse, engaged the evidentiary presumption in s 145F of the National Law: at [51] (ground 4(e)).

1. Presumably, the asserted error of law would be formulated as an absence of evidence to sustain such a finding or inference of fact: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 358 (Mason CJ). This complaint is not made out.
2. The first finding was open to the Tribunal on the evidence and no error of law has been demonstrated. In addition to the matters referred to by the Tribunal, namely, the substance of the anonymous complaint in April 2016, and the objects of the National Law, s 3 and s 3A, further support for this finding can be seen in the report by the panel of the health interview on 6 September 2016, specifically, the concerns held by the panel in relation to Dr Windsor's well-being and the panel's recommendation that the Council take further urgent action to protect the public.
3. The second finding directs attention to the meaning of "reasonable excuse" in s 145F. In Taikato v R (1996) 186 CLR 454 at 464, Brennan CJ, Toohey, McHugh and Gummow JJ said that the relevant meaning of the term "reasonable excuse" "depended upon the circumstances of the individual case and also on the purpose of the provision to which the defence of "reasonable excuse" is an exception". One purpose of s 145E of the National Law is to protect the health and safety of the public from medical practitioners who do not have sufficient physical or mental capacity to practise: see ss 3 and 3A of the National Law. In that context, the expression "reasonable excuse" in s 145F requires an explanation to be advanced which would justify the medical practitioner's failure to comply with a direction under s 145E to undergo an examination.
4. Dr Windsor did not give evidence. That Dr Windsor asserted in her letter to the Council dated 16 September 2016 that the anonymous complaint was fabricated and she disputed that the Council had authority to require her to undergo an assessment, does not establish facts which were capable in law of providing a reasonable excuse. The finding of absence of reasonable excuse under s 145F was open to the Tribunal and no error of law has been demonstrated.

Asserted error in hearing process

1. The sixth matter concerns the asserted failure by the Tribunal to follow a two-stage hearing process, with separate determinations of the complaint and any protection orders (ground 4(f)). Presumably the asserted error of law would be formulated as a failure by the Tribunal to afford procedural fairness in terms of fair notice of the protection orders sought by the Commission and a fair opportunity to respond. This complaint is not made out.
2. First, Dr Windsor was given sufficient notice in writing by the Commission on 8 October 2018 that it would be seeking an order for cancellation of her registration as a medical practitioner. Second, contrary to Dr Windsor's submission, the Tribunal did not state at the directions hearing held on 20 March 2019 that there would be a separate hearing on the making of any protection orders. Third, Dr Windsor did not seek a separate hearing on the making of protection orders. Fourth, whilst the Tribunal may adopt a two-stage hearing process with respect to some complaints, given their nature or the circumstances of the case, such as a complaint of professional misconduct (see, for example, King v Health Care Complaints Commission [2011] NSWCA 353), that analogue is not apposite to the nature of the complaint made against Dr Windsor - that she suffered from an impairment, was not competent to practise medicine, and is otherwise not a suitable person for registration as a medical practitioner.

Ground 5

1. Ground 5 asserts that the Tribunal erred in law in improperly adjudicating on the Commission's application.

Asserted error in finding that particulars to complaint 1 made out

1. Ground 5(a) asserts that the Tribunal failed to apply the correct principle in finding that the particulars of complaint 1 were made out, but "curiously" found that complaint 1 had not been made out. To the extent that this ground challenges the factual finding that the particulars of complaint 1 were made out, Dr Windsor has not shown an absence of evidence to sustain that factual finding: Australian Broadcasting Tribunal v Bond. This finding was open to the Tribunal and no error of law has been demonstrated. Nor is there any inconsistency between the two findings. Having found that the particulars of complaint 1 were made out, the Tribunal was required to separately determine whether such matters constituted "impairment" within the meaning of s 5 of the National Law. The Tribunal was not so satisfied. It was for this reason that complaint 1 was not made out.

Asserted error in finding of not competent to practise

1. Ground 5(b) asserts that the Tribunal failed to properly construe s 139(a) of the National Law in finding at [54] of its decision that complaint 2 (lack of competence) had been made out. The terms of s 139(a) are set out at [9] above. The requirement in s 139(a) of competence to practise a health profession includes that a person "has sufficient … mental capacity … to practise the profession".
2. The Tribunal's ultimate finding that Dr Windsor was not competent to practise, was based on two earlier findings. One was the finding at [48] that on the basis of the background events set out in its reasons, including Dr Windsor's response to the investigation of the complaint by the Council and the subsequent investigation by the Commission, and her decision not to participate in the proceedings before the Tribunal: … Dr Windsor has demonstrated diminished control over her autonomy, diminished insight into her professional obligations to regulatory authorities and diminished insight into and capacity to respond to the adverse effects of her personal relationship with Mr Windsor to her professional obligations.
3. The other matter was the finding at [53] that the failure of Dr Windsor, without reasonable excuse, to comply with the Council's direction under s 145E to undergo an examination by Dr Samuels was evidence, for the purposes of s 145F of the National Law, that Dr Windsor did not have sufficient mental capacity to practise the health profession in which she was registered.
4. That the Tribunal, after considering the evidence, concluded that Dr Windsor was not competent to practise does not constitute an error of law.
5. Grounds 5(b)(vii), (viii), (ix), (x) and (xi) make a number of other complaints. For example, ground 5(vii) asserts: (vii) All of the letters and emails either in Dr Gina Windsor's name or DR NEIL WINDSOR's name, which the Tribunal exploited by including in its decision, often out of context, for purportedly justifying its decision and misleading improperly informed judges and or judicial officials of the Supreme Court were written between 23 May 2016 and 22 May 2018 in self-defence "out of necessity" against tribal trickery and criminality involved in entrapping the Appellant, and such deceit and criminality were later proven by the discovery of specific criminal fraud, deceit, tampering with evidence, acts of terrorism, perversion of justice and professional misconduct involved in the malicious prosecution. The linguistic content used by DR NEIL WINDSOR in self-defence and resistance against tribal crimes, in its most unfavourable interpretation, is benign and or trivial in the context of what is permissible under Division 3 Self-Defence s 418-423 of the Crimes Act 1900 and the nature of crimes unleashed by the tribal criminals. None of these grounds provide a basis for challenging the Tribunal's decision, let alone identifies an error of law.

Asserted error in finding unsuitability

1. Ground 5(c) asserts that the Tribunal failed to properly construe s 144(e) of the National Law in finding at [57]-[59] of its decision that complaint 3 was established. Section 144 is set out at [8] above; s 144(e) provides that the grounds on which complaint may be made about a registered health practitioner include that the practitioner "is otherwise" not a suitable person to hold registration in the practitioner's profession.
2. According to Dr Windsor's submission, the particulars of complaint 1 (impairment) and complaint 2 (lack of competence), which were repeated and relied upon in support of complaint 3 (unsuitable), could not be so relied upon because those particulars were not "so independent and unrelated" to the Commission's complaint that Dr Windsor was not competent to practise her profession.
3. The Commission submitted that the words "is otherwise" in s 144(e) simply operate to enable the Tribunal to hear other types of complaints, other than those mentioned in s 144(a)-(d). That submission accorded with authority in the Tribunal which has interpreted the word "otherwise" in s 144(e) as limiting the operation of that provision to grounds for complaint not set out under ss 144(a)-(d): Health Care Complaints Commission v Simpson [2018] NSWCATOD 49 at [60]; Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [59]; Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 at [57]; Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [51]. Dr Windsor did not submit to the contrary.
4. The question of construction in relation to s 144(e) is whether, as the Commission submitted, the National Law should operate to permit the Tribunal to find a practitioner is otherwise not a suitable person to hold registration (s 144(e)) on the same underlying conduct of another ground of complaint, such as "lack of competence" (s 144(c)). According to the submission, this interpretation would best achieve the purpose or object of the National Law and is to be preferred to any other interpretation, as mandated by the purposive approach to the National Law required by cl 7 of Sch 7 of the National Law.
5. The starting point is to recognise that the same particulars of underlying conduct can be characterised in more than one way for the purpose of s 144 of the National Law, when the Tribunal is exercising its powers under s 149C(1). That is, the underlying conduct relied upon for a complaint is not mutually exclusive to one of the complaints that can be made under s 144(a) to (e). That is also reflected in the language of s 149C(1) where the "is otherwise" limitation in s 144(e) is not repeated in s 149C(1)(d).
6. In Health Care Complaints Commission v Do, the same particulars of underlying conduct were characterised by the Tribunal for the purposes of a complaint under s 144(b) as supporting both a finding of "unsatisfactory professional conduct" within the meaning of s 139B(1) of the National Law and a finding of "professional misconduct" as defined in s 139E of the National Law.
7. Similarly, underlying conduct with respect to the circumstances of a criminal offence which is of a sufficiently serious nature to render a practitioner unfit to practise (s 149C(1)(c)), may also be characterised as rendering the practitioner unsuitable for registration (s 149C(1)(d)). Importantly, the meaning of "suitability" is not fixed or comprehensively defined in the National Law and includes aspects of competence (s 55(1)(d) and 55(h)(ii)), as does s 139(b)), impairment (s 55(1)(a)) and criminal conduct (s 55(1)(b)).
8. Health Care Complaints Commission v Haasbroek involved four complaints made against a medical practitioner; two relied on criminal convictions - one for assault occasioning actual bodily harm and one for domestic violence (s 144(a)); the third relied on unsatisfactory professional conduct (s 144(b)); and the fourth relied on circumstances rendering the practitioner unsuitable to hold registration (s 144(e)). The practitioner admitted the first three complaints and disputed the fourth. The fourth complaint was based on the particulars of the earlier complaints and some additional conduct. In accepting that the same particulars of the underlying conduct could be relied upon for the fourth complaint, the Tribunal said at [60]: On a plain reading, the words "or otherwise" must denote something other than the types of conduct or circumstances set out in s 144(a) to (d). We agree that the admissions of the criminal offences themselves are only relevant to s 144(a), and that the admission of unsatisfactory professional conduct is only relevant to s 144(b). However, it appears to us that s 144(e) may be established on evidence of the underlying conduct that led to the criminal charges and convictions. The factual circumstances of events which ground a criminal conviction or finding may, depending on their gravity, if established to the requisite standard, constitute a separate and distinct complaint to the admitted complaints brought under s 144(a) and (b). In other words, those circumstances, of themselves, may otherwise render a practitioner unsuitable for registration.
9. In this case, having found complaint 2 (lack of competence) had been made out, the Tribunal said at [57] with respect to complaint 3 (unsuitable) that "it follows that [Dr Windsor] is presently unsuitable to hold registration as a general practitioner". That finding is to be understood as based on the particulars of the underlying conduct relied upon for complaint 2: see [104]-[105] above. The Tribunal's characterisation of the circumstances described in its reasons and Dr Windsor's conduct in the proceedings before the Tribunal as rendering Dr Windsor unsuitable for registration does not constitute an error of law. That finding was well-open to the Tribunal on the evidence, in particular, having regard to the findings of the Tribunal at [48], which are set out at [104] above.
10. In light of this conclusion, it is not necessary to decide the Commission's alternative submission that the Tribunal was permitted to find a lack of competence (s 144(c)) and the cancellation order which followed was appropriate on this ground alone under s 149C(1)(a) of the National Law. However, I should indicate my view that if it were necessary to decide I would accept this submission. The finding of lack of competence was of a sufficiently serious nature to justify the cancellation of Dr Windsor's registration.

Ground 6

1. Ground 6 asserts that the Tribunal made a deceitful and misleading statement of fact "by omission" to contrive the notion of a new hearing before the Tribunal on 18 June 2019. This ground is directed to the Tribunal's reasons at [37] as follows: The hearing before us was the second occasion upon which the matter was heard in the Tribunal. After the first occasion, prior to the delivery of any decision, the Tribunal was discovered to have been improperly constituted, and this panel was then appointed to hear the matter afresh. The appellant submitted that there was no fresh or new hearing before a differently constituted Tribunal on 18 June 2018. This complaint is entirely misconceived. And no question of law is raised.
2. Dr Windsor submitted that the proceedings before the Tribunal on 1 February and 1 March 2019 formed a "contiguous integral part" of the proceedings before the Tribunal on 18 June 2019. This submission is misconceived. None of the members of the Tribunal on 18 June 2019 were part of the Tribunal which heard the complaint on 1 February and 1 March 2019.
3. Dr Windsor further submitted that the hearing before the Tribunal on 18 June 2019 was "in all substantive material respects so constituted to introduce total tribal bias … and to advance judicial and extra-judicial tribal interests including tribal treason and tribal genocide of Gentiles". There is no substance in this assertion, which is an example of the irrelevant and impermissible character of this ground of appeal. No question of law is identified.

Ground 7

1. Ground 7 asserts that the Tribunal made a deceitful and misleading statement of fact "by commission" relating to the power of attorney relied upon by Mr Windsor. This ground is directed to the Tribunal's reasons at [39] as follows: Mr Windsor filed a set of documents comprising a single volume, and then, prior to the hearing, filed "The Respondent's Written Submissions" Volumes 1 and 2. Mr Windsor included in Volume 1 a general power of attorney granted by Dr Windsor to him on 14 October 2016. He argued, in a directions hearing, that this power of attorney gave him authority to act on Dr Windsor's behalf in the hearing of the matter before the Tribunal, but this argument was unsuccessful.
2. It is not in dispute that Mr Windsor first presented the power of attorney to the Tribunal in person on 18 June 2019, on which occasion he was refused leave to represent Dr Windsor. The reference in [39] of the Tribunal's reasons to Mr Windsor having argued in a directions hearing that the power of attorney gave him authority to act on Dr Windsor's behalf is correct. That was a reference to the directions hearing on 8 May 2016 at which Mr Windsor made reference to and relied upon the existence of the power of attorney, without producing that document, in support of his application for leave to represent the appellant. No question of law is identified.
3. Ground 7(a)(i) asserts that the Tribunal colluded with counsel for the Commission to "judicially ambush" Dr Windsor by relying on a case of irrelevant precedential value. To the extent that this ground suggests some sort of unfairness on the part of the Tribunal in refusing Mr Windsor's application for leave to represent Dr Windsor, the assertion is not made out. In opposing Mr Windsor's application for leave to appear for Dr Windsor, counsel for the Commission made reference to Giniotis v Farrugia (NSWCA, Kirby P, Glass JA and Samuels JA, 19 August 1985, unreported; BC8500603). Giniotis v Farrugia is consistent with counsel's submission that the power of attorney in favour of Mr Windsor did not automatically confer the right to appear for her in the proceedings before the Tribunal: see also Windsor v Health Care Complaints Commission (No 1) 2020 NSWCA 16.
4. Nor does the transcript support the assertion of collusion or ambush. In refusing to grant Mr Windsor leave to appear on behalf of Dr Windsor, Deputy President Judge Cole said on 18 June 2019: HER HONOUR: Thank you. MATHUR: I've handed Mr Windsor a copy of that authority. HER HONOUR: Thank you. Regardless of the date of the power of attorney, there is no doubt that a power of attorney does not confer the ability to appear and represent a person in legal proceedings. That is in addition to the reasons that I gave you on the previous occasion, Mr Windsor, and those reasons were 40 that you were involved in some of the incidents which has led to these proceedings and your involvement in these proceeding to this time has shown very clearly that you are unable to focus on what the hearing is about, which is Dr Windsor's health and her conduct as a medical practitioner both in the past and in the future and her registration, instead you seek to use the proceedings 45 to bring in a wide range of material specific to your own personal interests and preoccupations. And finally you have no relevant training or qualifications, you are not legally qualified. So for all of those reasons once again your application to represent Dr Windsor in these proceeding is refused. Now you are required, Mr Windsor, to remove yourself from the bar table and to take yourself either out of the room or into the body of the Court where you may listen to the proceedings. That is the end of this application, Mr Windsor.
5. Ground 7(a)(ii) asserts that the Tribunal instructed a "premeditatedly" placed "policeman" to remove Mr Windsor from the hearing in the middle of an impromptu argument. This ground concerns the removal of Mr Windsor from the bar table at the hearing before the Tribunal on 18 June 2019. The transcript records that the Deputy President directed the removal of Mr Windsor after he twice refused to leave the bar table when requested to do so. The allegation that this direction was "premeditated" is not made out. There is an additional difficulty with this ground because it concerns a challenge to a discretionary interlocutory decision of the Tribunal on a matter of practice and procedure and leave to appeal has not been sought. Nor has Dr Windsor established that there is any basis that conforms with the principles on which this Court could, or should, intervene: Micallef at [45].
6. Ground 7(a)(iii) asserts that the Tribunal failed to give proper reasons and gave incorrect reasons, with the intent to mislead, by refusing to consider an application by Dr Windsor dated 13 May 2019. This seems to be a reference to Dr Windsor's application to review the Tribunal's decision of 8 May 2019 refusing leave to issue summonses for the production of documents. As indicated, the Registrar of the Tribunal refused this fresh application on 17 May 2019 giving brief oral reasons: see [71] above. The complaint of absence of reasons is misconceived.
7. Ground 7(b) asserts that the Tribunal tampered with its records and concealed the existence of an application dated 13 May 2019 to set aside and vary the earlier decision of the Tribunal on 8 May 2019. Again, this complaint is misconceived. This application was dismissed by the Registrar of the Tribunal on 17 May 2019.
8. Grounds 7(c) and (d) assert that the Tribunal made a deceitful and misleading statement of fact in its reasons at [40], when stating that it had taken into account the material in the volumes filed by Mr Windsor insofar as they are relevant and that much of the material filed related to Mr Windsor's theories and beliefs. This complaint has been addressed at [82]-[84] above.
9. Ground 7(e) asserts that the Tribunal made a deceitful and misleading statement of fact on 20 March 2019 concerning the existence of a transcript of the s 150 hearing before the Council on 23 September 2016. The transcript of the directions hearing on 20 March 2019 records that the solicitor for the Commission stated that to the best of her knowledge, a transcript of the s 150 hearing before the Council was not kept in circumstances where Dr Windsor failed to appear before the Council. Dr Windsor pointed to a statement in a later report by Dr Samuels dated 19 July 2017, referring to a copy of the "transcript of Proceedings held under Section 150, dated 23 September 2016". However, the quote that appears in the report of Dr Samuels from the so-called "transcript" is in fact an extract of part of the reasons for decision of the Council under s 150. It is plain that Dr Samuels mis-described the Council's reasons for decision as being a "transcript" of the s 150 hearing. No error of law has been identified.

Ground 8

1. Ground 8 asserts that the Tribunal perverted the course of justice by denying every application by Dr Windsor for summonses to be issued. This complaint has been addressed at [70]-[71], [74]-[77] above.

Ground 9

1. Ground 9 asserts that the Tribunal aided and abetted tribal terrorism committed against Dr Windsor and every member of her family over a period of 25 years. This ground is based on irrelevant or impermissible material as is evident from the following extract of this ground in the amended notice of appeal: [9] The Tribunal J aided and abetted tribal terrorism committed against the Appellant, and every member of the Appellant's family over a period of 25 years in (1) suppressing by non-mention (2) denying the discovery of full extent through summonses and (3) being callously indifferent to the objective evidence of tribal crimes and terrorism which included under separate sections behind: (a) Tab 4: Cannibal Crimes against Children, including chemical poisoning to tamper with the endocrinal system and fraudulent alteration of exam marks in school and university. University crimes committed to effect fabricated failures with a view to suspension from the University; … [Emphasis in original.]
2. No purpose would be served in referring to Dr Windsor's submissions in support of this ground. No question of law is identified.

Ground 10

1. Ground 10 asserts that the Tribunal failed to consider a Constitutional matter. The notice given by Dr Windsor under s 78B of the Judiciary Act 1903 (Cth) stated the central ground of the asserted "Constitutional cause of action, which is related to every other ground by one degree of separation" as follows: [2.1] The Appellant was framed, entrapped and maliciously prosecuted by the Respondents as a collateral victim due to her relationship with the ATTORNEY (OF POWER), who on his own independent initiative made a unique Creation (the CREATION) for People of the Planet by discovering the Devil and divining the DIVINE, in the course of his independent private research, a perspective of which was published in November 2011 as a PhD research proposal to Harvard University titled: "Shared Value as a Snared Value - to control, continue and conserve capitalism", advocating "a divine doctrine dedicated to driving innovation and economic growth" among the People of the Planet for their benefit; … [2.3] The Appellant argued before the Tribunal that it was this CREATION and consequent PROOF as to the nature of the Constitution which caused the respondents to breach their statutory duties repeatedly, and overreach the boundaries of civil prosecution and civil adjudication by resorting to criminal conduct such as fraud, deceit, evidence tampering, transcript tampering, and perversion of course of justice, in trying to conceal the TRUTH; … [Emphasis in original.]
2. No question of law is identified in the s 78B notice, let alone any question of law under the Constitution. The appeal does not raise any issue under the Constitution.

Other matters: Notice of motion - 27 April 2020

1. By notice of motion filed 27 April 2020, Dr Windsor and Mr Windsor sought a variety of relief, including relevantly, that leave be granted to Mr Windsor to be joined as the second appellant pursuant to UCPR, r 6.19(1).
2. UCPR, r 6.19(1) provides: 6.19 Proceedings involving common questions of law or fact (cf SCR Part 8, rule 2; DCR Part 7, rule 2; LCR Part 6, rule 2) (1) Two or more persons may be joined as plaintiffs or defendants in any originating process if - (a) separate proceedings by or against each of them would give rise to a common question of law or fact, and (b) all rights of relief claimed in the originating process are in respect of, or arise out of, the same transaction or series of transactions, or if the court gives leave for them to be joined. (2) Leave under subrule (1) may be granted before or after the originating process is filed.
3. UCPR, r 6.19 is made applicable to proceedings in the Court of Appeal by r 51.1(3), subject to such modifications as are necessary, including relevantly, that a reference to an originating process includes a reference to a notice of appeal and a reference to a plaintiff includes a reference to a person who commences proceedings in the Court (whether as an appellant or otherwise): r 51.1(4).
4. The application to join Mr Windsor as an additional appellant should be refused because there is no common question of fact or law, nor rights of relief claimed arising out of the same transaction or series of transactions. Mr Windsor was not a party to the proceedings before the Tribunal; the Tribunal's order cancelling Dr Windsor's registration as a medical practitioner does not affect any legal right or interest of Mr Windsor; and he has no entitlement to any of the claims for relief by Dr Windsor on the appeal. Further, the efficient use of the resources of the parties to the appeal and the Court would not be facilitated by permitting the joinder of Mr Windsor as the second appellant.
5. None of the other relief sought in the notice of motion, to the extent that it is comprehensible, is appropriate. Nor should the Court spend time addressing claims for interlocutory relief which are of an impermissible character or scandalous nature.

Affidavits filed without leave

1. After judgment was reserved, Mr Windsor filed an affidavit on 7 May 2020 styled "The God in Creation" comprising 125 pages and on 2 June 2020, Mr Windsor sent another affidavit to the Court by email styled "The God's White Book", referring to 7 volumes of documents delivered to the Court on 27 May 2020. As leave to file these affidavits and materials was neither sought nor granted, they should be ignored: Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230 at [147]; Bull v Lee (No 2) [2009] NSWCA 362 at [9]; Wollongong City Council v Papadopoulos [2019] NSWCA 178 at [140].

Conclusion and orders

1. The appeal has failed and there is no reason why costs should not follow the event: UCPR, r 42.1. The notice of motion filed 27 April 2020 should be dismissed with costs.
2. I propose the following orders: 1. Appeal dismissed. 2. Dismiss the notice of motion filed 27 April 2020. 3. Appellant to pay the costs of the first respondent and the second respondent of the proceedings in this Court.
3. LEEMING JA: I agree with Gleeson JA.
4. McCALLUM JA: I agree with Gleeson JA and would add only one remark. A disturbing feature of this case was Dr Windsor's notable absence in the conduct of the appeal. The Court has not heard her in person and it may be doubted that she is the author of any of the written grounds, applications, arguments or correspondence received by the Court. The Court would be astute not to suffer the appropriation of an appellant's case by a shadow litigant. The inappropriateness of granting leave to Mr Windsor to appear for the appellant or joining him as a second appellant is informed by that concern, which only serves to vindicate the Tribunal's finding that Dr Windsor had demonstrated diminished control over her autonomy to the extent that her capacity to fulfil her professional obligations was compromised.

SCHEDULE Particulars of amended complaint The amended complaint set out three complaints against Dr Windsor, in the following terms. Person A is Mr Windsor: COMPLAINT ONE Has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practice the profession of medicine. Background to Complaint 1 … Particulars of Complaint 1 1. During the health interview on 6 September 2016, when Person A repeatedly told the practitioner not to say anything during the health interview, the practitioner largely complied and did not speak. 2. At the health interview Person A made statements including: i. that there was a plot against Person A, the practitioner and other close family members; ii. Person A believed there was a plot against him because of a web page about "Atlantian Genocide"; iii. Person A provided a flyer to the interviewers about a web page; iv. that his phones, the Council's phones and the health interview room were all bugged; v. that the people after Person A, the practitioner and other close family members were dangerous. 3. During the health interview the practitioner did not express disagreement with Person A's statements set out at particular 2 above. 4. At the health interview, the practitioner stated that she agreed with Person A that her phone was bugged. 5. When Person A directed the practitioner to leave the health interview at a time when the interviewers had not completed their questioning, the practitioner complied and left the interview. 6. The practitioner failed, without reasonable excuse, to comply with a direction by the Council under section 145E of the National Law to undergo an examination by a specified health practitioner, Dr Anthony Samuels, scheduled for 16 September 2016. Pursuant to section 145F of the National Law the practitioner's failure to attend Dr Samuels' examination is evidence that the practitioner does not have sufficient physical or mental capacity to practise medicine. 7. By letter dated 14 September 2016 the practitioner was informed by the Council that it would be convening proceedings under section 150 of the National Law on 23 September 2016 and that the proceedings would be recorded. On 22 September 2016, the practitioner was informed that Person A would not be able to attend the proceedings. The practitioner failed to appear before the s150 delegates on 23 September 2016 to be interviewed. 7a. By letter dated 22 September 2016 the practitioner wrote to the Council expressing her view that Person A: a) held views as expressed to the health interview panel which "is not a belief he hold[s]. It is based on real events, real experience and real facts that can be proven"; b) is neither paranoid nor "having paranoia"; c) is "qualified and capable" of accurately assessing risks, "certainly more than a typical doctor". 8. On 27 June 2017 the Council emailed the practitioner directly concerning her suspension. On 29 June 2017 Person A replied to the email by: i. stating "Final Response: SCREW YOU!"; ii. stating that the Council and its employees were on a "watch list"; iii. telling the Council to view a conspiracy theory website; iv. threatening that the receivers of the email should "enjoy your life while you still can!", and v. the practitioner failed to independently respond to the Council's email. 9. On 3 August 2017, Person A communicated to the Commission by email, expressed to be on behalf of the practitioner, by: i. making derogatory comments to the Commission's staff; ii. espousing delusional, paranoid and persecutory beliefs; iii. referring to conspiracy websites and conspiracies; iv. stating that "I judge your role to be one of a criminal patsy, criminal accomplice or a criminal principal in the overriding criminal plot against our family…"and, v. the practitioner did not independently respond to the Commission's email. 10. On 3 August 2017 the Health Care Complaints Commission notified the practitioner directly by e-letter of proposed referral of her matter to the Director of Proceedings and the grounds for the referral. The e-letter also invited the practitioner to make submissions. Person A responded by email to the Commissioner on the same day stating, "Dear Criminals, No Submission. Bring It On!" and the practitioner did not independently respond to the Commission's e-letter. 11. Particulars 1-10 (as amended) are relied upon to support a finding that the practitioner has Induced Delusional Disorder and/or another underlying mental health disorder which makes her vulnerable to paranoia and/or delusions. COMPLAINT TWO Is not competent to practice medicine within the meaning of section 139(a) of the National Law. Background to Complaint 2 As for Complaint One. Particulars of Complaint 2 1. The particulars of Complaint One are repeated and relied upon individually and cumulatively. 2. By reason of the particulars of Complaint One the practitioner has demonstrated and demonstrates: a. a lack of mental capacity; b. diminished control over her autonomy; c. diminished insight into her professional obligations to regulatory authorities; d. diminished insight into and/or capacity to respond to the adverse effects of her personal relationship with Person A to her professional obligations. COMPLAINT THREE Is not otherwise a suitable person to hold registration as a medical practitioner. Background to Complaint 3 As for Complaint One. Particulars of Complaint 3 1. The particulars of Complaint One and Two are repeated and relied upon individually and cumulatively. 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: 10 June 2020