Hassan v Sydney Local Health District (No 5)

1. [1]

   THE COURT: On 7 April 2015, the applicant, Mrs Ayan Abdi Hassan, underwent certain procedures at the Royal Prince Alfred Hospital (RPA). Mrs Hassan subsequently commenced proceedings in the Supreme Court claiming damages against the respondent, the Sydney Local Health District (SLHD), [1] for injuries said to arise as a result of those procedures. Mrs Hassan claimed to have consented only to a biopsy under local anaesthetic of her left deltoid, whereas in fact a biopsy was performed, under general anaesthetic, on her left vastus (thigh) and the left deltoid. Mrs Hassan further alleged that she was asked to sign the consent form only after the surgery was performed, while suffering the effects of general anaesthetic.

2. [2]

   The proceedings at first instance had a lengthy and unhappy interlocutory history and were only finally completed on 5 May 2020. The trial judge, Fagan J, made orders on 14 June 2019 in Hassan v Royal Prince Alfred Hospital [2019] NSWSC 1651; on 28 November 2019 in Hassan v Sydney Local Health District [2019] NSWSC 1652; and on 5 May 2020 in Hassan v Sydney Local Health District (No 2) [2020] NSWSC 475.

3. [3]

   On 30 June 2020, Mrs Hassan filed a notice of appeal in this Court against the orders made in all of the decisions described at [2] above. The notice of appeal contained 50 grounds. By motion dated 30 June 2020, Mrs Hassan sought leave under r 7.3(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to issue three subpoenas for production of documents. On 3 August 2020, the Registrar of the Court of Appeal refused leave for Mrs Hassan to issue the subpoenas. On 26 August 2020, Gleeson JA dismissed Mrs Hassan’s motion [2] for review of the Registrar’s decision: Hassan v Sydney Local Health District [2020] NSWCA 195 at [23]-[48], [51].

4. [4]

   On 7 September 2020, Mrs Hassan filed a notice of motion seeking, in addition to a great deal of other relief, prayers 7 and 8 which sought a review of the decision of Gleeson JA. The Registrar listed prayers 7 and 8 of the motion for hearing on 30 October 2020 and struck out the balance of the notice of motion as incompetent.

5. [5]

   On 23 December 2020, this Court (comprising Bell P, Basten and Leeming JJA) held that none of Mrs Hassan’s complaints about the judgment of Gleeson JA were established and dismissed Mrs Hassan’s motion with costs: Hassan v Sydney Local Health District (No 2) [2020] NSWCA 356. [3]

6. [6]

   On 7 June 2021, this Court (again comprising Bell P, Basten and Leeming JJA) dismissed a further notice of motion [4] which sought essentially to reagitate all of the issues raised by her 7 September 2020 motion: Hassan v Sydney Local Health District (No 2) [2021] NSWCA 122.

7. [7]

   On 18 June 2021, Mrs Hassan filed a further notice of motion seeking to agitate essentially the same issues which had been determined on 23 December 2020 and 7 June 2021. On 22 June 2021, the Registrar made directions that Mrs Hassan file submissions addressing why an order in the nature of the orders made in Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324 ought not to be made against her. Mrs Hassan did not file or serve any such submissions.

8. [8]

   On 27 August 2021, this Court [5] dismissed the 18 June 2021 notice of motion as an abuse of process: Hassan v Sydney Local Health District (No 4) [2021] NSWCA 187. The Court made the following order:

The decision of Brereton JA

1. [9]

   At the same time as Mrs Hassan was conducting the litigation in relation to subpoenas described above, she failed otherwise to progress her appeal.

2. [10]

   On 3 February 2021, Mrs Hassan was directed by the Registrar to file her submissions on the substantive appeal by 24 February 2021. The Registrar indicated that if she did not do so by then, on the next occasion the matter would be referred to a judge to consider whether the appeal should be dismissed for want of due despatch. The matter was adjourned to 3 March 2021 for directions.

3. [11]

   On 3 March 2021, Mrs Hassan indicated that she could not and would not prepare her submissions on the appeal without access to the material she sought by issue of the subpoenas. The Registrar directed that she should proceed to prepare her submissions on the basis that the subpoenas would not be issued [6] and directed Mrs Hassan to file her submissions on the appeal by 17 March 2021. On 16 March 2021 (the day before the deadline for filing submissions), Mrs Hassan filed a notice of motion comprising twenty numbered paragraphs. The motion effectively comprised:

   1. (1)

      an application to adduce new evidence on appeal under r 51.51 of the UCPR (paras 1 and 2);

   2. (2)

      an application for leave to issue subpoenas (para 3);

   3. (3)

      an application for orders referring numerous persons associated with the RPA to the Police and the Commonwealth Director of Public Prosecutions (CDPP) for perjury (paras 4, 5 and 15);

   4. (4)

      an application for review of the Registrar’s orders of 3 March 2021 (para 11);

   5. (5)

      a stay of the proceedings until the hearing of the motion (para 12);

   6. (6)

      an adjournment of the show cause hearing until the hearing of the motions of 5 January 2021, 24 January 2021 and 16 March 2021 (para 14); and

   7. (7)

      procedural directions and costs.

4. [12]

   On 22 March 2021, the Registrar declined to refer most of the claims for relief in the 16 March 2021 motion to a judge for hearing, on the basis that they were substantially the same as those which had been sought before and refused by the Court in the 23 December 2020 decision. The Registrar however treated claims 11 (review of the Registrar’s 3 March 2021 decision), 12 (stay of the proceedings until the motion be heard), and 14 (adjournment of the show cause hearing until determination of the 5 January 2021, 24 January 2021, and 16 March 2021 motions) as, in substance, applications for review of the Registrar’s earlier decisions. On that basis, the Registrar stood those claims over to a show cause hearing on 29 March 2021. On 23 March 2021, Mrs Hassan filed a further motion seeking a review of the Registrar’s orders of 22 March 2021 (paras 1-10) and otherwise substantially the same relief as was sought in the 16 March 2021 motion.

5. [13]

   On 29 March 2021, the show cause hearing came before Brereton JA. His Honour divided the issues for consideration into three categories:

   1. (1)

      whether the show cause hearing should proceed or be deferred;

   2. (2)

      whether the remaining claims in the 16 March 2021 motion should be entertained, and if so what should be done in respect of them; and

   3. (3)

      whether the proceedings should be dismissed for want of due despatch.

6. [14]

   At Mrs Hassan’s request, Brereton JA dealt so far as practicable with all outstanding interlocutory applications, except for those which were beyond his Honour’s remit. Accordingly, the judgment did not deal with:

   1. (1)

      Mrs Hassan’s application by motion filed on 5 January 2021 for reconsideration of the 23 December 2020 judgment, which was a matter for the bench of the Court of Appeal that gave that judgment; [7]

   2. (2)

      Mrs Hassan’s application by paras 1 and 2 of her motion of 16 March 2021 to adduce new evidence in the appeal, which was a matter for the bench that would ultimately hear the appeal; and

   3. (3)

      Mrs Hassan’s application for leave to issue subpoenas, which had been decided by Gleeson JA whose decision was confirmed by this Court and in respect of which an application to reopen was at that time before the Court of Appeal comprising Bell P, Basten and Leeming JJA.

7. [15]

   Brereton JA concluded that there was no sufficient reason to defer the show cause hearing: at [34]. As to whether the remaining claims should be entertained, his Honour observed that apart from the application to adduce new evidence on appeal, the remaining relief sought in the motions of 16 March 2021 and 23 March 2021 essentially comprised a further application for leave to issue subpoenas (para 3 of the 16 March 2021 motion) and the referral of numerous named persons to the CDPP for allegedly breaching the Crimes Act 1914 (Cth) and Criminal Code (Cth). His Honour dismissed all prayers for relief addressing these issues: at [37]-[41].

8. [16]

   The essence of Mrs Hassan’s case before Brereton JA was that she could not and would not file her written submissions on the appeal until she had been granted access to the documents sought by the three subpoenas. His Honour concluded that the application for leave to issue subpoenas sought to reagitate the issues that had already been determined by this Court. His Honour concluded that the motion was to that extent an abuse of process.

9. [17]

   As to the central issue for present purposes, whether the appeal should be dismissed for want of due despatch, Brereton JA said:

10. [18]

    On 20 May 2021, his Honour made the following orders (Hassan v Sydney Local Health District [2021] NSWCA 97):

11. [19]

    Mrs Hassan did not file her submissions in accordance with order (2) and the appeal was dismissed by the Registrar on 22 June 2021.

Consideration of Mrs Hassan’s 1 June 2021 motion

1. [20]

   On 1 June 2021, Mrs Hassan filed a notice of motion dated 30 May 2021. Mrs Hassan sought various orders including:

   1. (1)

      to “quash” various decisions of this Court (including the decision of Brereton JA) pursuant to provisions of the Crimes Act 1914;

   2. (2)

      referral of numerous judicial officers, lawyers, medical practitioners and others to prosecuting bodies, including the CDPP and the Commonwealth Parliament, for purportedly engaging in improper conduct;

   3. (3)

      review of certain procedural orders made by the Registrar in the substantive appeal in September 2020 and March 2021 pursuant to UCPR r 36.15, the Crimes Act 1914 and on the grounds of bias and lack of procedural fairness;

   4. (4)

      leave to issue subpoenas and rely on new evidence on appeal; and

   5. (5)

      costs.

2. [21]

   On 21 June 2021, the Registrar made the following orders:

3. [22]

   Although framed as an appeal, Mrs Hassan’s application should be treated as an application for review under s 46(4), which is not an appeal: Supreme Court Act, s 19(2) and UCPR rr 51.2 and 51.58. Section 46(4) does not confer an unrestricted right to a new hearing of the matters in contest. The applicant for review must show that there has been a material error of law or fact or a disregard of material considerations in the exercise of the power or that the decision was plainly unreasonable and therefore wrong: Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136 at [6]; Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [48]; Patrick v Howorth [2002] NSWCA 285 at [10] (Heydon JA; Hodgson JA and Young CJ in Eq agreeing); Wentworth v Wentworth (1994) 35 NSWLR 726.

4. [23]

   Mrs Hassan’s motion was called on for hearing in this Court on 31 August 2021. Mrs Hassan appeared by audio-visual link and by mobile telephone. At the outset, in the course of the presiding judge explaining to Mrs Hassan the way the Court proposed to approach her motion, Mrs Hassan demanded to know whether the presiding judge was the nominated judge referred to in order (2) made by the Court of Appeal on 27 August 2021 set out at [8] above.

5. [24]

   The presiding judge explained that he was not the nominated judge referred to in the Court’s 27 August order, and was in the course of explaining that the 31 August Court was not concerned with the orders made by the differently constituted Court on the 27th of August, when Mrs Hassan abruptly and deliberately disconnected her telephone and audio-visual connection with the Court in the following exchange:

6. [25]

   The Associate in Court tried to ring Mrs Hassan back on the telephone number that Mrs Hassan had used to contact the Court, but Mrs Hassan did not answer the call.

7. [26]

   It is a matter of considerable regret that Mrs Hassan chose not to participate further in the hearing. In the circumstances, the Court indicated to counsel for the respondent that it did not propose to hear oral submissions from him and would consider the matter on the papers.

8. [27]

   We have considered the voluminous materials put forward by Mrs Hassan. Mrs Hassan’s written submissions did not identify any error of law or fact or identify any material considerations not properly taken into account in the decision of Brereton JA. Nor has Mrs Hassan ever attempted to file any submissions in support of her substantive appeal or put forward any reason why an extension of time for the filing of such submissions should be granted, beyond her stated desire to be allowed to issue subpoenas. Mrs Hassan’s submissions have essentially repeated her request for leave to issue subpoenas. This is not a matter before the Court as presently constituted. The issue has been dealt with, exhaustively, in the decisions of the Court referred to at [3]-[8] above.

9. [28]

   On 29 August 2021, Mrs Hassan provided a bundle of further material to the Court which we have considered. Regarding Brereton JA’s decision, Mrs Hassan’s principal submission was that a single judge could not dismiss her notices of motion. That is incorrect. The orders made by Brereton JA were within his Honour’s jurisdiction and were made regularly and in good faith.

10. [29]

    Beyond that, so far as is presently relevant, Mrs Hassan continues to insist that she cannot and will not progress the appeal and prepare her written submissions without leave being granted to issue subpoenas. Although the appeal was filed on 30 June 2020, and orders have been made on three occasions requiring her to file her submissions, she has failed to do so. Even now, 14 months after the notice of appeal was filed, Mrs Hassan insists that she cannot and will not file her submissions unless the documents she seeks by subpoena are produced to her. In her submissions dated 21 June 2021, Mrs Hassan submitted:

11. [30]

    This Court has determined the issue relating to leave to issue subpoenas to finality: see Hassan v Sydney Local Health District (No 2) [2020] NSWCA 356; Hassan v Sydney Local Health District (No 2) [2021] NSWCA 122; Hassan v Sydney Local Health District (No 4) [2021] NSWCA 187. Mrs Hassan nevertheless continues to agitate the subpoena issue. This Court, as presently constituted, does not have before it that subpoena issue. Mrs Hassan’s remedy, if she is dissatisfied with the decisions at [3]-[8], is to seek special leave to appeal to the High Court. The subpoena issue was not before Brereton JA and his Honour’s treatment of the issue was correct.

12. [31]

    Dealing with the remaining orders made by Brereton JA:

    1. (1)

       his Honour was correct to observe that there was no medical evidence before him of an actual incapacity to progress the appeal, noting “[o]ver the last six months, Mrs Hassan has been able repeatedly to compile lengthy motions, affidavits, and submissions”. No error has been shown in his Honour’s conclusion that he was not satisfied “that there is any current health obstacle to the preparation of [Mrs Hassan’s] submissions, or to her being able to address the issues on the show cause hearing”;

    2. (2)

       his Honour was correct to conclude that Mrs Hassan was not entitled to an order that numerous named persons associated with the RPA, and judicial officers who had heard her claims, should be referred to the CDPP for allegedly breaching the Crimes Act 1914 and the Criminal Code. Leaving aside the profound and insurmountable constitutional problems with Mrs Hassan’s suggestion, not the slightest evidence was provided warranting referral of anybody to any (federal or state) investigatory or disciplinary body; and

    3. (3)

       his Honour was correct to conclude that Mrs Hassan had demonstrated that she was unwilling to comply with directions and orders of the Court to file her written submissions on her appeal. The extra month afforded to Mrs Hassan to do so was more than adequate. The self-executing order his Honour made was, in the circumstances of this case, entirely appropriate.

Conclusion and orders

1. [32]

   Mrs Hassan has not shown any error in the decision of Brereton JA. The notice of motion filed on 1 June 2021 must be dismissed with costs.