Hassan v Sydney Local Health District (No 2)

BELL P: On 23 December 2020, this Court dismissed a motion brought by Ms Ayan Abdi Hassan (Ms Hassan), seeking to set aside the decision of Gleeson JA to refuse leave to issue subpoenas to obtain documents from the respondent, Sydney Local Health District (SLHD) for the purposes of Ms Hassan’s appeal from a series of decisions of Fagan J in the Common Law Division: see Hassan v Sydney Local Health District (No 2) [2020] NSWCA 356 (the review judgment). Gleeson JA’s decision is Hassan v Sydney Local Health District [2020] NSWCA 195.

The factual background to Ms Hassan’s underlying appeal from the decision of Fagan J is set out in the review judgment at [1]-[16]. The crux of Ms Hassan’s motion to set aside the decision of Gleeson JA was that:

It is convenient to reproduce the central reasoning in the review judgment, before turning to the notice of motion of 5 January 2021 which has been filed by Ms Hassan and to which these reasons relate. At [19]–[26] of the review judgment, Bell P (with whom Basten and Leeming JJA agreed) held that:

Further background to Ms Hassan’s litigation in this Court is set out in the recent judgment of Brereton JA: see Hassan v Sydney Local Health District [2021] NSWCA 97. In that decision, his Honour ordered that:

As noted above, the motion filed on 5 January 2021 is the subject of these reasons.

The motion is a document of some 61 paragraphs running to some 22 pages. It combines a mixture of narrative history, rambling submissions and serious allegations. By my reckoning, it seeks an order to review or set aside some five judgments of this Court or a member of it, namely Gleeson JA’s decision, and those of Fagan J. These reviews are purportedly sought pursuant to various sections of the Crimes Act 1914 (Cth) and the Criminal Code Act 1995 (Cth). The motion also seeks the referral of various judges and the Registrar of the Court of Appeal to the Commonwealth Director of Public Prosecutions and the Commonwealth Parliament.

By para 1(g) of the motion, Ms Hassan also seeks an order that:

The motion refers under the heading “Documents in support” to some 7 affidavits filed in earlier proceedings with many pages of exhibits and annexures, as well as multiple sets of past submissions and “[a]ll of my notices of motion found in Court book 3 pp 67-229”.

Insofar as the motion seeks review of previous judgments of this Court pursuant to the Crimes Act and a referral of judges of this Court and its Registrar to the Commonwealth Director of Public Prosecutions and the Commonwealth Parliament, both requests are self-evidently misconceived and vexatious and should be summarily dismissed.

To the extent that sense can be made of the balance of the motion, it appears that Ms Hassan seeks orders pursuant to rr 36.15(1) and 36.16(3)(a) of the Uniform Civil Procedure Rules 2005 (NSW) setting aside the decisions of Fagan J, Gleeson JA and the review judgment.

Insofar as Ms Hassan seeks to set aside the various decisions of Fagan J which are the subject of a pending appeal in this Court, the notice of motion is plainly vexatious and an abuse of process in circumstances where those decisions are already being challenged by Ms Hassan by a more regular procedural route. The respondents to Ms Hassan’s appeal should not be vexed twice in that respect: Moore v Inglis (1976) 50 ALJR 589; (1976) 9 ALR 509.

Insofar as the motion seeks to set aside the judgment of Gleeson JA refusing to issue a subpoena, the motion is also an abuse of process. This is so principally because, in paragraph 8 of the motion, Ms Hassan essentially repeats the arguments that she advanced and which were rejected by this Court in the review judgment delivered on 23 December 2020. The challenge to Gleeson JA’s judgment has been heard and dismissed, and it is vexatious and an abuse of process to seek to re-agitate the challenge to that decision by a further notice of motion.

That leaves for consideration Ms Hassan’s application to review the review judgment itself. The basis of the application to set aside or vary the review judgment appears to be set out in paragraph 1(e) of the motion, as follows:

The assertion in this paragraph that various affidavits and submissions “were not considered at all” by the Court is not accurate. The following points should be borne in mind. Only prayers 7 and 8 of the 7 September 2020 notice of motion were before the Court that considered the review judgment, with the balance of the prayers for relief sought in that motion having been struck out by the Registrar. Secondly, the material and evidence that was considered by the Court for the purposes of the review judgment was the material filed that was relevant to those two prayers for relief. Much of the voluminous material before the Court was not relevant to prayers 7 and 8.

Just because a judgment may not mention or refer to every affidavit relied upon or submission made does not mean that that evidence and/or those submissions have not been considered. This is especially so if and where the evidence or submissions in question are discursive and rambling and irrelevant to the precise issues before the Court. Regrettably, that is often although not invariably the case with some self-represented litigants who file frequent motions in this Court which are repetitive, discursive, unstructured and regularly in breach of the rules of court as to the length of submissions and the presentation of evidence.

There is no necessity for as busy a court as the New South Wales Court of Appeal to refer in its interlocutory decisions to all evidence relied upon or submissions made in such circumstances: cf. Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [44]. Just as neither the need nor the appearance of justice require that reasons be given for every decision by a judicial tribunal, as McHugh JA (as his Honour then was) observed in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 (Soulemezis), so too not every argument raised will need to be addressed in the context of a decision on practice and procedure, such as that of Gleeson JA, or a decision reviewing such a decision, such as was made in the review judgment. That is especially so where the submissions made are misconceived or repetitive or overly discursive.

To say this is not to detract from the central importance of reasons for judgment as outlined in cases such as Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667; [1986] HCA 7; Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [54]ff (Wainohu); Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 (Resource Pacific) and New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231. Considerations of proportionality and the Court’s obligation to give effect to the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) call, however, for discriminating judgment by this Court as to where and how to strike a balance in dealing with motions and voluminous evidence of the kind that was before the Court for the purposes of the review judgment and as is before this Court on this motion.

To adapt a further observation of McHugh JA’s in Soulemezis at [79], justice is a multi-faceted concept and the limited nature of judicial resources and the cost to litigants and the general public in requiring reasons on every argument raised by a self-represented litigant must also be weighed. A similar observation was made by Basten JA in Resource Pacific at [48]:

The same sentiment is also reflected in the statement in the joint judgment of French CJ and Kiefel J in Wainohu at [56], that the duty to give reasons does not apply to every interlocutory decision and that the “content and detail of the reasons to be provided will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision.”

Something should also be said about para 1(f) of the motion, which was in the following terms:

Paragraph [15] of the review judgment which is referred to in prayer 1(f) should be noted in full. It was in these terms:

Ms Hassan’s criticism is that the notice of motion of 7 September 2020 that was before the Court did contain the names of various doctors. That notice of motion ran to some 18 pages containing 59 paragraphs and it is true that there were various doctors named in the notice of motion. None was mentioned in prayer 2, however, and the purpose of [15] of the review judgment was to try to understand what relief Ms Hassan was seeking and in relation to whom that relief was being sought.

What was said in [15] of the review judgment related to part of Ms Hassan’s oral address which went beyond the boundaries of the relief which had been sought in prayers 7 and 8 of the notice of motion. It related to her criticism of the Registrar’s decision to strike out all but those two prayers of the notice of motion. As I said at [16] of the review judgment, “[n]othing put in the course of the hearing called into question the correctness of the Registrar’s decision striking out the balance of the notice of motion”. I adhere fully to that view.

Ms Hassan’s oral address as referred to in [15] of the review judgment was also wholly misconceived in terms of the relief that was being sought, just as aspects of the present motion seeking to have various persons referred to the Commonwealth Director of Public Prosecutions and the Commonwealth Parliament was misconceived.

The notice of motion should be dismissed with costs.

BASTEN JA: I agree with the President.

LEEMING JA: I agree with Bell P.