Windsor v Health Care Complaints Commission

1. [1]

   GLEESON JA: The appellant Dr Gina Windsor is a medical practitioner. On 23 September 2016, following her refusal to undergo psychiatric examination as directed by the second respondent, the Medical Council of New South Wales (the Council), the Council by its duly appointed delegates suspended her registration pursuant to s 150(1)(a) of the (NSW) Health Practitioner Regulation National Law (“the National Law”). On 21 October 2016, following a review under s 150A of the National Law, the Council by its delegates affirmed the suspension.

2. [2]

   On 1 October 2019, following a complaint lodged by the first respondent, the Heath Care Complaints Commission (the Commission), against Dr Windsor, the Occupational Division of the New South Wales Civil and Administrative Tribunal (the Tribunal), cancelled Dr Windsor’s registration as a general practitioner pursuant to s 149C(1) of the National Law on the grounds that Dr Windsor is not currently competent to practise as a general practitioner and is presently unsuitable to hold registration as a general practitioner: Health Care Complaints Commission v Windsor [2019] NSWCATOD 149.

3. [3]

   Dr Windsor has appealed against the Tribunal’s decision (to cancel her registration) and purported to appeal against the Council’s decision (to suspend her registration). Her statutory right of appeal against the Tribunal’s decision is limited to any question of law, or with leave of the Court, on any other grounds: Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), Sch 5, cl 29(2)(b) and cl 29(4)(b). Dr Windsor has not sought leave to extend the appeal to “any other grounds” and accordingly, her appeal is to be taken as limited to any question of law. To the extent that the appeal challenged certain interlocutory decisions of the Tribunal, leave to appeal is required: NCAT Act, Sch 5, Pt 6, cl 29(6)(a). Dr Windsor has not sought leave to appeal.

4. [4]

   The essential contention in Dr Windsor’s written argument is that the Commission and the Council did not have an arguable case based on provable and undisputed facts and that there should be summary judgment in Dr Windsor’s favour setting aside the Tribunal’s decision.

5. [5]

   For the reasons that follow, Dr Windsor’s appeal against the Tribunal’s decision (to cancel her registration) should be dismissed, and her appeal against the Council’s decision (to suspend her registration) should be dismissed as incompetent.

The statutory scheme

1. [6]

   An understanding of the circumstances giving rise to the suspension by the Council and the cancellation by the Tribunal is assisted by an outline of the relevant legislative provisions.

2. [7]

   The National Law establishes a registration and accreditation scheme. As Meagher JA explained in Health Care Complaints Commission v Do [2014] NSWCA 307 at [34]:

3. [8]

   In Sub-division 1 (“Making complaints [NSW]”) of Div 3 (“Complaints [NSW]”) of Pt 8 in the National Law, s 144 provides that the following complaints may be made against a registered health practitioner:

4. [9]

   As to the meaning and scope of the terms “competence”, “impairment” and “suitable” in the National Law, reference should be made to the following provisions:

5. [10]

   Sub-division 2 ("How complaints are to be dealt with [NSW]”) of Div 3 of Pt 8 in the National Law, provides that: all complaints are to be dealt with expeditiously (s 145); the Council and the Commission must consult before any action is taken on a complaint (s 145A); the courses of action available to a Council in respect of a complaint include referring the health practitioner for a health assessment – in which case the matter ceases to be a complaint for the purposes of the National Law and the Health Care Complaints Act 1993 (NSW) (HCC Act) (s 145B(1)(f)(i) and (3)); and the Commission may, as occurred in this case, refer a complaint about a registered health practitioner to the relevant Council responsible for the registration of the practitioner.

6. [11]

   In dealing with a complaint, the Council may require a registered health practitioner to undergo examination by a direction given under s 145E:

7. [12]

   Section 145F deals with the circumstance where a registered health practitioner, without reasonable excuse, fails to comply with a direction by a Council under s 145E to undergo an examination:

8. [13]

   In Sub-division 7 ("Powers of a Council for protection of public [NSW]") of Div 3 of Pt 8 in the National Law, s 150 relevantly provides that the Council may suspend a registered health practitioner’s registration in the following circumstances:

9. [14]

   In Kirby v Dental Council of NSW [2020] NSWCA 91, Brereton JA explained at [12] and [15] the nature of the Council’s task under a s 150 hearing:

10. [15]

    Where the Council takes action under s 150 it must – except in the case of impairment – refer the matter to the Commission for investigation. Section 150D relevantly provides:

11. [16]

    Under s 150(2), a suspension imposed under s 150(1) continues until “the complaint … has been disposed of” or the relevant Council ends the suspension. As Brereton JA said in Kirby v Dental Council of NSW at [14]:

12. [17]

    A practitioner may apply to the Council under s 150A(1) for a review of a decision of the Council under s 150, and unless the Council considers that the application for review is frivolous or vexatious, it must reconsider its decision and, in doing so, consider any new material or evidence submitted by the practitioner that the Council reasonably considers to be relevant. Following any reconsideration, the Council may affirm or vary its original decision, or set it aside and take any action that the Council has power to take under s 150.

13. [18]

    A practitioner also has rights of appeal to the Tribunal against a suspension by the Council. Sub-division 2 (“Appeals against actions by Council [NSW]”) of Div 6 (“Appeals to Tribunal [NSW]”) of Pt 8 in the National Law relevantly provides in ss 159 and 159B:

14. [19]

    Sub-division 6 (“Disciplinary powers of Tribunals [NSW]”) of Div 3 of Pt 8 in the National Law, deals with complaints made against a practitioner by the Commission. Section 149C provides that the Tribunal may suspend or cancel the practitioner’s registration if the Tribunal is satisfied of any one of four conditions specified in sub-sec (1):

15. [20]

    In exercising its disciplinary powers to suspend or cancel a practitioner’s registration under s 149C(1) of the National law, the Tribunal must give proper consideration to the full scope of the objective of public protection, of maintaining the standards of the profession, and of deterrence. As Meagher JA said in Health Care Complaints Commission v Do at [35]:

Background and procedural history

1. [21]

   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.

2. [22]

   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.

3. [23]

   On 4 April 2016, the Commission received an anonymous complaint in writing about Dr Windsor which made the following allegations:

4. [24]

   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.

5. [25]

   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:

6. [26]

   Under the heading “Conclusion”, the Panel expressed the following concerns and recommendation:

7. [27]

   In a letter to the Council dated 16 September 2016, Dr Windsor objected to the health interview before the panel, asserting, among others, that:

8. [28]

   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.

9. [29]

   In a report dated 16 September 2016, based on information given to him, Dr Samuels expressed the opinion:

10. [30]

    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:

11. [31]

    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:

12. [32]

    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.

13. [33]

    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.

14. [34]

    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. (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. (2)

       Dr Windsor is not competent to practise medicine within the meaning of s 139(a) of the National Law;

    3. (3)

       Dr Windsor is not otherwise a suitable person to hold registration as a medical practitioner.

15. [35]

    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.

16. [36]

    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.

17. [37]

    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.

18. [38]

    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.

The Tribunal’s decision

1. [39]

   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. [40]

   The Tribunal found that Complaint 2 had been made out (at [54]), giving three reasons:

3. [41]

   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].

4. [42]

   As indicated, the Tribunal cancelled Dr Windsor’s registration on 1 October 2019.

Proceedings in this Court

1. [43]

   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. [44]

   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. [45]

   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. [46]

   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. [47]

   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:

2. [48]

   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. [49]

   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. (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. (2)

      whether the Council erred by suspending Dr Windsor’s registration on 23 September 2016;

   3. (3)

      whether the Tribunal erred when exercising its discretion not to:

   4. (4)

      whether the Tribunal erred the manner in which it dealt with the complaint.

4. [50]

   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. [51]

   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. [52]

   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].

7. [53]

   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].

8. [54]

   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].

9. [55]

   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:

10. [56]

    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:

11. [57]

    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.

12. [58]

    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.

13. [59]

    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. [60]

   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. [61]

   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. (1)

      apply to the Council under s 150A of the National Law for review of the suspension decision;

   2. (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. (3)

      appeal to the Tribunal with respect to a “point of law” under s 159B(1) of the National Law;

   4. (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. [62]

   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. [63]

   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. [64]

   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].

6. [65]

   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. [66]

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

2. [67]

   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.

3. [68]

   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:

4. [69]

   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]:

5. [70]

   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:

6. [71]

   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.

7. [72]

   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.

8. [73]

   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.

9. [74]

   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).

10. [75]

    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:

11. [76]

    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).

12. [77]

    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. [78]

   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. [79]

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

2. [80]

   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.

3. [81]

   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.

Grounds 4(c) and (b)(iii), 5(c) and 7(c)

1. [82]

   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. [83]

   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. [84]

   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]:

4. [85]

   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. [86]

   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. [87]

   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. [88]

   The alleged breaches of statutory duty by the Council have been addressed at [60]-[65] above.

3. [89]

   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. [90]

   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. [91]

   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.

2. [92]

   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.

3. [93]

   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.

4. [94]

   The fifth matter concerns the Tribunal’s findings that:

5. [95]

   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.

6. [96]

   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.

7. [97]

   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.

8. [98]

   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.

9. [99]

   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.

10. [100]

    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. [101]

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

2. [102]

   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.

3. [103]

   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”.

4. [104]

   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:

5. [105]

   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.

6. [106]

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

7. [107]

   Grounds 5(b)(vii), (viii), (ix), (x) and (xi) make a number of other complaints. For example, ground 5(vii) asserts:

8. [108]

   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.

9. [109]

   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.

10. [110]

    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.

11. [111]

    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.

12. [112]

    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).

13. [113]

    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.

14. [114]

    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)).

15. [115]

    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]:

16. [116]

    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.

17. [117]

    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. [118]

   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:

2. [119]

   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. [120]

   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. [121]

   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:

2. [122]

   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. [123]

   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. [124]

   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:

5. [125]

   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. [126]

   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. [127]

   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. [128]

   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. [129]

   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. [130]

   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. [131]

   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:

2. [132]

   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. [133]

   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. [134]

   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. [135]

   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. [136]

   UCPR, r 6.19(1) provides:

3. [137]

   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. [138]

   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. [139]

   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.

6. [140]

   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. [141]

   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. [142]

   I propose the following orders:

   1. (1)

      Appeal dismissed.

   2. (2)

      Dismiss the notice of motion filed 27 April 2020.

   3. (3)

      Appellant to pay the costs of the first respondent and the second respondent of the proceedings in this Court.

3. [143]

   LEEMING JA: I agree with Gleeson JA.

4. [144]

   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.