Hassan v Sydney Local Health District (No 2)

1. [1]

   BELL P: On 30 June 2020, Ms Ayan Abdi Hassan (Ms Hassan) filed a detailed notice of appeal from a series of decisions of Fagan J of the Common Law Division of this Court: see Hassan v Royal Prince Alfred Hospital [2019] NSWSC 1651; Hassan v Sydney Local Health District [2019] NSWSC 1652; and Hassan v Sydney Local Health District (No 2) [2020] NSWSC 475.

2. [2]

   The notice of appeal is a discursive document running to some 33 pages.

3. [3]

   On 26 August 2020, Gleeson JA dismissed a notice of motion brought by the respondent to the appeal, Sydney Local Health District (SLHD), seeking to have the notice of appeal struck out as incompetent: see Hassan v Sydney Local Health District [2020] NSWCA 195 at [16]–[22]. At [21], his Honour reached the following conclusion:

4. [4]

   Also before Gleeson JA on 24 August 2020 was a notice of motion brought by Ms Hassan seeking the review of the decision of Registrar Riznyczok (the Registrar) to refuse leave to issue subpoenas in her appeal proceedings to obtain documents from SLHD. As Gleeson JA observed, the power of review of the decision of the Registrar arises under the Supreme Court Act 1970 (NSW) s 121 and the Uniform Civil Procedure Rules 2005 (NSW) r 49.19(1) (UCPR); see also Tomko v Palasty (No 2) (2008) 71 NSWLR 61; [2007] NSWCA 369.

5. [5]

   Gleeson JA described Ms Hassan’s essential complaint at [25] of his reasons as follows:

6. [6]

   In her underlying appeal from the decisions of Fagan J which has not yet been heard, Ms Hassan complains that his Honour erred in not ordering discovery or issue of subpoenas in June 2019. Ms Hassan submitted that this asserted error gave rise to lack of procedural fairness in Fagan J’s decision of 28 November 2019 to the effect that Ms Hassan’s expert evidence did not support her underlying allegations of medical negligence, because SLHD withheld evidence that otherwise would have been provided to her experts to support her case and, in particular, her claim not to have consented to a particular biopsy. At [28] of his reasons, Gleeson JA observed that:

7. [7]

   After giving consideration to both the text of and case law in relation to s 75A of the Supreme Court Act, Gleeson JA proceeded to consider the three subpoenas which the Registrar had refused leave to issue. These were subpoenas addressed to Dr Jones, medico-legal officer for SLHD; the second was addressed to the Proper Officer, National Information Release Unit, which seems to be a reference to the Australian Health Practitioner Regulation Agency (AHPRA); and the third was addressed to Dr Jones, relating to records of the “IRO”, being a reference to the Institute of Rheumatology and Orthopaedics, which is a clinical service of the RPAH.

8. [8]

   It is convenient to reproduce Gleeson JA’s reasoning in relation to his review of the Registrar’s decision which refused leave to issue the subpoenas, before turning to the grounds on which Ms Hassan seeks review of Gleeson JA’s decision on that subject. His Honour’s reasoning in respect of the subpoenas was as follows:

Notice of Motion

1. [9]

   On 7 September 2020, Ms Hassan filed a notice of motion which contained some 59 paragraphs and was largely discursive in form.

2. [10]

   By orders made on 23 October 2020, the Registrar listed prayers 7 and 8 of the motion for hearing on 30 October 2020 on the basis that they sought a review of the decision of Gleeson JA of 26 August 2020.

3. [11]

   The Registrar struck out the balance of the notice of motion and made directions for the filing and service of submissions in respect of prayers 7 and 8 by both Ms Hassan and SLHD. The Registrar directed that the appellant (Ms Hassan) “may address in the submissions why prayers (other than 7 and 8) are valid prayers for relief in this Court in terms of it being a motion.”

4. [12]

   Prayers 7 and 8 of the notice of motion were as follows:

5. [13]

   The balance of the notice of motion is a combination of discursive submissions, assertions as to the commission by various persons of various offences under the Crimes Act 1900 (NSW) and references to case law.

6. [14]

   To the extent that the notice of motion sought orders other than orders 7 and 8 which have been set out above, some of the orders sought were for the referral of Justice Fagan and a “Justice J.A. Gleeson” to the Commonwealth Parliament, “pursuant to misbehaviour and incapacity Parliamentary Commissions Act 2012 to intervene”. Other orders sought were to set aside various judgments of Justice Fagan which are the subject of separate appeal proceedings.

7. [15]

   In oral address it appeared from her submissions that Ms Hassan also wished to have various doctors associated with the Royal Prince Alfred Hospital in some way referred to authorities, although that relief does not seem to be the subject of any reference in the notice of motion. It may be that Ms Hassan wished to have the various doctors’ names referred to the Commonwealth DPP as that is the order sought in prayer 2 of the notice of motion, although that does not identify any named individuals.

8. [16]

   Nothing 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.

Consideration

1. [17]

   Ms Hassan filed detailed submissions with the Court on 7 October 2020. These were responded to by SLHD in submissions filed on 19 October 2020. Ms Hassan then filed a further 11 pages of single spaced submissions on 23 October 2020.

2. [18]

   The essence of Ms Hassan’s argument in support of prayers 7 and 8 of her notice of motion was contained in para 11 of her principal written submissions. In that paragraph, she asserted that:

3. [19]

   As to the assertions of lack of impartiality and bias, including that Justice Gleeson was “protecting the name of the hospital”, nothing advanced orally or in writing by Ms Hassan supplies a skerrick of support for that assertion.

4. [20]

   Insofar as Ms Hassan complained that there was a “failure to render a judgment in a reasonable amount of time”, in her oral submissions before the Court, Ms Hassan advanced an argument to precisely the opposite effect, namely that Justice Gleeson’s judgment, delivered on 26 August 2020 after a hearing on 24 August 2020, had been far too quickly delivered for him to have considered the volume of material which Ms Hassan had placed before the Court and that, in Ms Hassan’s opinion, this should have taken him “two weeks”. This material included copies of an affidavit and exhibits thereto which she had forwarded to his Honour’s chambers on the morning of 25 August 2020, as she had foreshadowed she would in the oral hearing before his Honour on 24 August 2020. The affidavit in question was an affidavit of a Ms Idowu of 30 November 2018. This is the affidavit referred to in [36] and [37] of his Honour’s judgment which has been extracted at [8] above. As correctly recognised by the respondent, there is no basis to suggest that Gleeson JA ignored the material that Ms Hassan provided to him shortly after the hearing, and he clearly did consider that material in his judgment.

5. [21]

   As to her contention that “Justice Gleeson just followed the same judgment that Justice Fagan made without looking at the issues”, this is wholly without foundation. The respondent was correct to point out that a review of the transcript of the application before Gleeson JA and his Honour’s subsequent judgment makes plain that he took time to ensure that he had a complete set of the affidavits and submissions upon which Ms Hassan relied, he did not misdirect himself as to the law, and he then applied the law to the three subpoenas the subject of the application before him.

6. [22]

   Nor did Gleeson JA simply “follow the same judgment that Justice Fagan made”, contrary to Ms Hassan’s contention. Gleeson JA ultimately found in relation to each subpoena that Ms Hassan failed to demonstrate a legitimate forensic purpose to seek documents for the purpose of adducing additional evidence on appeal. As the respondent submitted, the decision was open to his Honour and was not unreasonable, and there was no denial of procedural fairness to Ms Hassan.

7. [23]

   In oral submissions, Ms Hassan submitted that leave should be granted “in the interests of justice and fairness of procedure”. In response, the respondent contended that there was nothing “sufficiently out of the ordinary” in the present matter that would justify the granting of leave to issue any of the subpoenas sought by Ms Hassan, adopting the terminology of Tjiong v Tjiong [2012] NSWCA 201 at [168].

8. [24]

   By her notice of motion extracted at [12] above, Ms Hassan sought an order to set aside the judgment of Gleeson JA, pursuant to r 36.15(1) of the UCPR. This rule provides that a judgment of the court may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. To the extent that rule is relied on, the application can be made to the court as constituted to make the challenged order. In any event, for the reasons given above, there is nothing in Ms Hassan’s oral or written submissions which made good any allegation that the judgment of Gleeson JA was irregular, illegal or against good faith, and Ms Hassan’s contention that there “was bias and [a] denial of natural justice” lacks foundation.

9. [25]

   The power invoked in the present case is the power to “discharge or vary” a judgment of a single judge of appeal given in exercise of powers conferred by s 46 of the Supreme Court Act: see s 46(5). That is a broad discretionary power subject to similar, but not lesser, constraints than those governing the grant of leave to appeal: Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [48]. As has regularly been pointed out in decisions of this Court, a grant of leave to appeal generally requires there to be identified an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: see, for example, Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at 32]-[38]; The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; and Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]. Gleeson JA’s decision also related to a matter of practice and procedure. Particular caution and circumspection is required when reviewing such decisions: Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 at 177; [1981] HCA 39; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [3].

10. [26]

    None of these criteria is established in the present case. In my view, for the reasons set out above, the application for leave to appeal should be dismissed with costs.

11. [27]

    BASTEN JA: I agree with the President.

12. [28]

    LEEMING JA: I agree with Bell P.