Windsor v Health Care Complaints Commission - [2020] NSWCA 110 - NSWCA 2020 case summary — Zoe

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Windsor v Health Care Complaints Commission

[2020] NSWCA 110

Court of Appeal (NSW)|2020-04-30|Before: Gleeson JA, Leeming JA, McCallum JA, Kirby P, Glass JA, Samuels JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2020-04-30

Before

Gleeson JA, Leeming JA, McCallum JA, Kirby P, Glass JA

Source

Original judgment source is linked above.

Judgment (36 paragraphs)

[1]

Background and procedural history

The factual circumstances giving rise to the proceedings in the Tribunal are described in some detail in the Tribunal's reasons at [2]-[36]. The following summary, taken from the Tribunal's reasons, is sufficient to provide the context for this appeal.
Dr Windsor achieved full registration as a general practitioner in New South Wales on 8 December 1999. By 2015, at least part of her practice involved visiting nursing homes.
On 4 April 2016, the Commission received an anonymous complaint in writing about Dr Windsor which made the following allegations: � Dr Windsor visits nursing homes until the early hours of the morning and then practises at a medical practice during the day. � Dr Windsor does not understand her own safety or that of her patients. � Dr Windsor has been seen wearing the same clothes for a week. � Dr Windsor has been sleeping in her car or in nursing home she visits. � Dr Windsor eats dinner at the homes she visits. � Dr Windsor sometimes sees nursing home residents late at night when they are asleep. � Dr Windsor interferes in her clients' lives and also in the management of the nursing home. � Dr Windsor "influences her clients so that she can get more clients to provide her medical service too" [sic]. � Dr Windsor issues prescriptions to her clients without proper consultations. � Dr Windsor abuses the prescription of medication to her clients.
The Commission informed Dr Windsor of the complaint and Dr Windsor responded to the complaint on 23 May 2016. Following consultation with the Council, the complaint was referred to the Council: National Law, s 145A.
The Council requested Dr Windsor to attend a health interview with a panel of two psychiatrists, Dr Friend and Dr Arnold, on 6 September 2016. Dr Windsor attended before the panel accompanied by her husband, Mr Neil Windsor, who stated that he was the practice manager and also described himself as Dr Neil Windsor. The panel's report of the health interview records that Mr Windsor answered questions on behalf of Dr Windsor, he spoke over her and refused to allow her to speak and he terminated the interview when Dr Windsor indicated that she wished to proceed. The Panel's report included the following: Dr Windsor attended punctually and was accompanied by her husband Mr Windsor, who advised that he was her practice manager. Dr Windsor was unable to participate in the interview as her husband answered questions on her behalf, spoke over her and refused to allow her to speak. He terminated the interview, advised his wife that she must not participate, and struck her on the shoulder in order to make her stand up and leave the interview. Little information could be gathered about her practice or health. The information that could be gathered is as follows:

� Mr Windsor wrote the response to the notification. � Dr Windsor approved the response. � Dr Windsor denied that she has any health problems. � Mr Windsor believes that there is a plot against him, his wife and two children (aged [xx] and [xx]) and that the decision of the HCCC to convene this Health Interview is part of a "bigger issue". He believes that he is a target because of a web page he has written about "Atlantian Genocide", a discovery he recently made. He told the Interviewers that people were after him and his family and that they were in danger. � Mr Windsor provided the Council with a copy of his web page flyer. � Mr Windsor believes that his phones, the Council's phones and the interview room were all bugged and that the people who are after them are dangerous. � Mr Windsor said that they had been persecuted for four years. � Dr Windsor agreed that she thought her phone was bugged. Observations during the Interview Dr Windsor was very quiet during the interview, and when she spoke her husband repeatedly told her not to say anything, and he terminated the interview at a time when Dr Windsor told the interviewers that she wished to proceed. Mr Windsor was belligerent, paranoid and angry. He raised his voice and seemed preoccupied by the persecutory and somewhat bizarre beliefs outlined above, which appeared to be of a delusional nature. Mr Windsor's thought form appeared disjointed and was difficult to follow at times. Mr Windsor struck his wife on the shoulder and demanded that she leave with him. The interview was then terminated. ISSUES ARISING: � The interview could not be conducted because of Mr Windsor's anger, hostility and paranoia. � No information could be gathered about Dr Windsor other than her shared belief that their phones are bugged and they are under surveillance. � Mr Windsor is the practice manager and this could place the public in danger given his aggression, overt hostility and paranoia. � Dr Windsor appears to be unduly influenced by her husband and this could place the public in danger if she acts on delusional beliefs, particularly as they seem to share beliefs that might be delusional. � Dr Windsor does not appear to be able to cooperate with the Council or its processes. � Dr Windsor does not seem to appreciate her professional responsibilities regarding making an appropriate response to a complaint and cooperating with regulatory authorities. � If Mr Windsor is the practice manager, then Dr Windsor has a responsibility to ensure the public are protected and the Interviewers were not satisfied that she could ensure the public were protected.

On 12 September 2016 the Council directed Dr Windsor to attend an examination by a psychiatrist, Dr Samuels, on 16 September 2016 to obtain an independent assessment of her health. Dr Windsor failed to attend that examination.
In a report dated 16 September 2016, based on information given to him, Dr Samuels expressed the opinion: [Mr Windsor's] behaviour in the interview conducted by Dr Arnold and Dr Friend raised the possibility that Dr Windsor had become affected by her husband's mental illness or that he is exerting a degree of control over her that is placing her at risk or impacting upon her ability to practise as a medical practitioner. … until there is an opportunity to properly assess her in the absence of her husband in order to ascertain exactly what is going on, she probably should not be engaged in the practise of medicine.
Following receipt of Dr Samuel's report, the Council convened a hearing on 23 September 2016 under s 150 of the National Law to consider whether it was appropriate, for the protection of the health and safety of any person, or otherwise in the public interest, to either suspend Dr Windsor or impose conditions on her registration. Dr Windsor provided the Council with written submissions but did not attend the hearing. Dr Samuels provided the Council with a further report dated 22 September 2016, in which he said: My opinion remains unchanged and I continue to feel that Dr Windsor should not engage in the practise of medicine until she has been assessed by an independent psychiatrist and not in the presence of her husband.
The Council proceeded with the s 150 hearing in the absence of Dr Windsor and after considering Dr Windsor's further written submissions received on the evening before and on the day of hearing, decided to suspend her registration as a medical practitioner from 5 pm on 23 September 2016. In its reasons given on 7 October 2016, the Council by its delegates concluded: The delegates are of the opinion that given the immediacy and severity of the potential risks to public safety, and the public interest issues that this risk potentially raises given the vulnerable population she treats, there are no conditions that could reasonably be imposed to mitigate the risks at this time. Until such time as further information is available about Dr Windsor's health and the potential risks to public safety and for the reasons provided, the delegates are of the view that suspension of Dr Windsor's registration is required for the protection of the public and otherwise in the public interest.
On 5 October 2016, Dr Windsor applied to the Council, pursuant to s 150A of the National Law, to review the decision to suspend her registration. The Council by its delegates determined on 21 October 2016 that it was not satisfied that there had been a change in Dr Windsor's circumstances that justified variation or setting aside the original decision. Pursuant to s 150A(3) of the National Law the Council affirmed the suspension.
Also on 5 October 2016, the Council referred the matter to the Commission for investigation, as it was required to do so pursuant to s 150D of the National Law. An investigation by the Commission proceeded. Dr Samuels provided a further report dated 19 July 2017.
On 11 May 2018, the Commission filed a complaint and application in the Tribunal. The complaint was amended on 5 June 2018. The amended complaint set out three complaints against Dr Windsor as follows: 1. Dr Windsor has an impairment within the meaning of s 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 practise the profession of medicine; 2. Dr Windsor is not competent to practise medicine within the meaning of s 139(a) of the National Law; 3. Dr Windsor is not otherwise a suitable person to hold registration as a medical practitioner. The particulars of each of the three complaints are set out in the Schedule to this judgment.
The amended complaint was fixed for hearing before the Tribunal on 1 February 2019; however Dr Windsor did not appear. Given some doubt as to whether Dr Windsor had received notice of the hearing, the matter was adjourned to 1 March 2019. Again, Dr Windsor did not appear; however Mr Windsor appeared, although no leave was granted to him to represent Dr Windsor. The hearing proceeded and the Tribunal reserved its decision. On 20 March 2019, Deputy President Judge Cole convened a directions hearing and informed the parties that the Tribunal had not been properly constituted on 1 March 2019 so a new Tribunal would be empanelled. That occurred and Dr Windsor was notified of the new hearing date which was fixed for 18 June 2019.
On 7 April 2019, Dr Windsor sought to file summonses for production of documents addressed to the Council, Dr Samuels, Dr Arnold and Dr Friend, Hornsby Hospital, the Commission, and the Tribunal. At the hearing of that application on 8 May 2019, Mr Windsor sought leave to represent Dr Windsor. Mr Windsor's application was refused by Deputy President Judge Cole, who also dismissed Dr Windsor's applications for leave to file summonses.
On 13 May 2019, Dr Windsor made a further application by letter for the issue of summonses (see attached), which was refused by the Registrar of the Tribunal on 17 May 2019.
Dr Windsor did not appear at the hearing before the Tribunal on 18 June 2019. Mr Windsor appeared and sought to represent Dr Windsor. After the Tribunal denied leave, Mr Windsor was invited to sit in the gallery of the Tribunal. Mr Windsor did not comply with two requests by the presiding member to leave the bar table. As a consequence, the presiding member asked that he be removed from the hearing.

[3]

Proceedings in this Court

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.
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).
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.
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.

[4]

The grounds of appeal

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.]
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).
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
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.
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).

[6]

Actual bias - relevant principles

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."

[7]

Consideration

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.
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.
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.
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.

[8]

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

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)).
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).
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.
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.
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].

[11]

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

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.
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.
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.

[12]

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

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.
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.

[14]

Consideration

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).
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.
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).
Dr Windsor has not established that there is any basis that conforms with the principles on which this Court could, or should, intervene.

[18]

Failure to address evidence and arguments

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.
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].
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".
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.
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.

[22]

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

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)).

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.
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.
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.
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.

[26]

Asserted error in finding of not competent to practise

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".
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.
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.
That the Tribunal, after considering the evidence, concluded that Dr Windsor was not competent to practise does not constitute an error of law.
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.

[27]

Asserted error in finding unsuitability

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.
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.
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.
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.
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).
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.
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)).
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.
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.
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.

[29]

Ground 7

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.
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.
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.
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.
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].
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.
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.
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.
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.

[33]

Other matters: Notice of motion - 27 April 2020

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).
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.
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).
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.
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.

[36]

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

Parties

Applicant/Plaintiff:

Windsor

Respondent/Defendant:

Health Care Complaints Commission

Legislation Cited (6)

Civil and Administrative Tribunal Act 2013(NSW)

Health Care Complaints Act 1993(NSW)

Judiciary Act 1903(Cth)

Supreme Court Act 1970(NSW)

Uniform Civil Procedure Rules 2005(NSW)

Health Practitioner Regulation (Adoption of National Law) Act 2009(NSW)

Cases Cited (45)

Glass JA and Samuels JA, 19 August 1985, unreported; BC8500603) Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 Health Care Complaints Commission v Simpson [2018] NSWCATOD 49 House v The King (1936) 55 CLR 499; [1936] HCA 40 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 King v Health Care Complaints Commission [2011] NSWCA 353 Kirby v Dental Council of NSW [2020] NSWCA 91 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 State of New South Wales v Mulcahy [2006] NSWCA 303 Taikato v R (1996) 186 CLR 454 Windsor v Health Care Complaints Commission (No 1) [2020] NSWCA 16 Windsor v Health Care Complaints Commission (No 2) [2020] NSWCA 18 Wollongong City Council v Papadopoulos [2019] NSWCA 178 Category: Principal judgment Parties: Gina Windsor (Appellant) Health Care Complaints Commission (First respondent) Medical Council of New South Wales (Second respondent) NSW Civil and Administrative Tribunal (Third respondent) Representation: Counsel: Appellant (no appearance) A Britt (First Respondent) A Horvath / K Lindeman (Second respondent)

Solicitors: B Chisholm, Health Care Complaints Commission (First respondent) I Martin, Health Professional Councils' Authority (Second respondent) K Smith, Crown Solicitor for New South Wales (Submitting appearance) (Third respondent) File Number(s): 2019/335419 Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Civil Citation: [2019] NSWCATOD 149 Date of Decision: 1 October 2019 Before: Cole DCJ, Dr M Diamond, Dr C Newberry and J Houen

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the Judgment] The appellant Dr Gina Windsor is a medical practitioner. On 23 September 2016, the second respondent - the Medical Council of New South Wales (the Council) - suspended Dr Windsor's registration following her refusal to undergo a psychiatric examination that had been directed by the Council after an anonymous complaint made about her practice. On 21 October 2016, an internal review of Dr Windsor's suspension was affirmed by the Council. The first respondent - the Health Care Complaints Commission (the Commission) - subsequently lodged a complaint about Dr Windsor with the Occupational Division of the New South Wales Civil and Administrative Tribunal (the Tribunal). On 1 October 2019, the Tribunal cancelled Dr Windsor's registration as a general practitioner on the bases that she was not competent to practise and was unsuitable to hold registration as a general practitioner. Dr Windsor appealed against the Tribunal's decision to the Court of Appeal. Her appeal was limited to questions of law having not sought leave of the Court to raise other matters. Dr Windsor also purported to appeal against the Council's decision to suspend her registration. The principal issues before the Court were: whether the Tribunal's decision involved a want of procedural fairness because it was affected by actual or apprehended bias; whether the Council erred by suspending Dr Windsor's registration on 23 September 2016; whether the Tribunal erred when exercising its discretion with respect to certain interlocutory decisions; and whether the Tribunal's decision involved errors of law, including an assertion that the Tribunal had failed to consider a Constitutional matter. Held, rejecting the appeal (per Gleeson JA; Leeming and McCallum JJA agreeing): As to issue (i): The Tribunal's decision did not involve actual or apprehended bias. First, Dr Windsor failed to identify anything that might lead the Tribunal to decide the matter other than on its legal or factual merits. Secondly, while the initial constitution of the Tribunal included Dr Brian Morton who was ineligible to sit because he was a member of the Council, this defect was acknowledged by the Tribunal and the Tribunal was reconstituted: [57] and [58]-[59]. CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 94 ALJR 140; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98; and Carver v Law Society of New South Wales (1997) 43 NSWLR 71 referred to. As to issue (ii): Dr Windsor's purported appeal against the Council's decision to suspend her registration was incompetent. She had not taken any of the avenues of appeal available under the Health Practitioner Regulation National Law and/or the Supreme Court Act 1970 (NSW). Moreover, there was no practical utility in challenging the Council's suspension because the Tribunal's subsequent decision to cancel her registration operated in place of it: [61]-[63] and [64]. Kirby v Dental Council of NSW [2020] NSWCA 91 applied. As to issue (iii): Leave is required to challenge an interlocutory decision and leave was not sought by Dr Windsor. Moreover, appellate intervention in a discretionary interlocutory decision will be warranted only upon House v The King principles; and where those decisions involve matters of practice and procedure the Court should not reverse the Tribunal's decision unless convinced that it is plainly erroneous. The Tribunal's refusal to allow Dr Windsor's husband to appear on her behalf, its refusal to allow Dr Windsor to issue summonses and its failure to summarily dismiss the complaint were not shown to be affected by error in the House v The King sense: [74]-[76]. House v The King (1936) 55 CLR 499; Micallef v ICI Operations Australia Pty Ltd [2001] NSWCA; and Adam v P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 applied. As to issue (iv): To the extent that Dr Windsor identified a question of law, no error was demonstrated with respect to the Tribunal's decision. Notably, it was open for the Tribunal to find that Dr Windsor was unsuitable for registration by reference to the underlying conduct that supported the separate finding that she was not competent to practise. The notice given by Dr Windsor under s 78B of the Judiciary Act 1903 (Cth) did not identify a question of law and did not raise any issue under the Constitution. To the extent that they were relevant, the balance of Dr Windsor's grounds of appeal asserting a want of procedural fairness were not made out: [116]-[117], [134] and [81], [85]-[86], [89], [93], [95], [98]-[99], [102], [106]-[107]. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Taikato v R (1996) 186 CLR 454; Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177; and Health Care Complaints Commission v Do [2014] NSWCA 307 considered.

(1981) 148 CLR 170

(1990) 170 CLR 321

(2011) 242 CLR 283

(2006) 67 NSWLR 372

(1997) 43 NSWLR 71

(2006) 229 CLR 577

(2000) 205 CLR 337

(1997) 41 NSWLR 630

(1936) 55 CLR 499

(2000) 201 CLR 488

(2015) 255 CLR 135

(2011) 244 CLR 427