Hassan v Sydney Local Health District

[2022] NSWSC 954

Supreme Court

New South Wales

Medium Neutral Citation:

Hassan v Sydney Local Health District [2022] NSWSC 954

Hearing dates:

01 October 2021 (orders made for written submissions and the matter be determined on the papers)

12 November 2021 (final written submissions received)

13 February 2022 and 20 March 2022 (further material received without leave)

Date of orders:

26 July 2022

Decision date:

26 July 2022

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), the Amended Summons is summarily dismissed.

(2) Costs are reserved.

(3) Any future directions listings in the Amended Summons is vacated.

Catchwords:

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — abuse of process — frivolous or vexatious proceedings — no reasonable cause of action disclosed — no prospects of success and hopeless — where relief sought to “suspend” or “remove” judicial officers — where proceeding sought to relitigate or reagitate matters that had been finally determined by Supreme Court and Court of Appeal — where plaintiff alleges criminal conduct or misconduct by judicial officers — judicial review of decisions of the Supreme Court and Court of Appeal — judicial review of decision of Judicial Commission — proceedings summarily dismissed in their entirety

Legislation Cited:

Civil Procedure Act2005 (NSW), ss 51, 58, 62, 146

Constitution Act 1902 (NSW), ss 5, 52, 53, 55

Crimes Act 1900 (NSW), s 327

Crimes Act 1914 (Cth)

Criminal Code Act 1995 (Cth)

Government Information (Public Access) Act 2009 (NSW)

Interpretation Act 1987 (NSW), s 12

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth), s 7

Judicial Officers Act 1986 (NSW), Pt 6; ss 3, 15, 20, 40, 41, 42, 43, 44

Judicial Review Act 1991 (Qld)

Judiciary Act 1903 (Cth), ss 78A, 78B

Supreme Court Act 1970 (NSW), s 69

Uniform Civil Procedure Rules 2005 (NSW), Pt 25; rr 14.1, 14.28, 18.1, 18.2, 36.15, 36.16, 31.36, 59.10

Vexatious Proceedings Act2008 (NSW), s 8

Cases Cited:

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Attorney-General (Cth) v Ogawa (2020) 281 FCR 1; [2020] FCAFC 180

Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; [2012] HCA 3

Barton v The Queen (1980) 147 CLR 75

Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1998] HCA 49

Bowers v Judicial Commission of New South Wales (No 1) [2021] NSWSC 916

Brown v Rezitis (1970) 127 CLR 157

Bruce v Cole (1998) 45 NSWLR 163

Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34

Cawley v Casey [2007] QSC 5

Clyne v Attorney-General (Cth) [No 2] (1984) 2 FCR 515

Connelly v Director of Public Prosecutions [1964] AC 1254

Duraisamy v Sydney Trains [2019] NSWCA 269

Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2008] NSWCA 227

Folbigg v Attorney General of New South Wales (2021) 391 ALR 294; [2021] NSWCA 44

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Giddings v Australian Information Commissioner (2017) 156 ALD 601; [2017] FCA 677

Global Partners Fund Ltd v Babcock & Brown Ltd (In liq) (2010) 267 ALR 144; [2010] NSWSC 270

Gouriet v Union of Post Office Workers [1978] AC 435

Hammond v State of New South Wales [2013] NSWSC 1930

Hassan v Royal Prince Alfred Hospital [2019] NSWSC 1651

Hassan v Sydney Local Health District (No 2) [2020] NSWCA 356

Hassan v Sydney Local Health District (No 2) [2020] NSWSC 475

Hassan v Sydney Local Health District (No 2) [2021] NSWCA 122

Hassan v Sydney Local Health District [2019] NSWSC 1652

Hassan v Sydney Local Health District [2020] NSWCA 195

Hassan v Sydney Local Health District [2021] NSWCA 97

Hastwell v Health Care Complaints Commission [2021] NSWCA 22

Holzinger v Attorney-General (Qld) (2020) 5 QR 314; [2020] QCA 165

Huynh v Attorney General (NSW) (2021) 396 ALR 422; [2021] NSWCA 297

Kerr v Commissioner of Police and Crown Employees Appeal Board [1977] 2 NSWLR 721

Lazarus v State of New South Wales [2018] NSWSC 998

Leerdam v Noori (2009) 255 ALR 553; [2009] NSWCA 90

Majak v Rose (No 5) [2017] NSWCA 238

Maxwell v The Queen (1996) 184 CLR 501

Meehan v Commissioner of Police (1999) 47 NSWLR 284; [1999] NSWCA 292

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

National Parks & Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573

Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9

NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48

O'Brien v Bank of Western Australia [2013] NSWCA 71

Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404

Penson v Titan National Pty Ltd [2015] NSWCA 404

Preston v Nikolaidis [2022] NSWSC 813

R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190

Rajski v Powell (1987) 11 NSWLR 522

Regional Express Holdings Limited v Dubbo City Council (No 2) [2013] NSWLEC 113

Stanizzo v Fregnan [2022] NSWSC 831

Uger v Attorney General for New South Wales [2019] NSWCA 86

VanguKitoko v State of New South Wales [2021] NSWSC 545

Webster v Lampard (1993) 177 CLR 598

Wollongong City Council v Papadopoulos [2019] NSWCA 178

Category:

Principal judgment

Parties:

Sydney Local Health District t/as Royal Prince Alfred Hospital (First Defendant)
Sydney Local Health District t/as Institute of Rheumatology and Orthopaedics (Second Defendant)
Roslyn Jones (Third Defendant)
Seun Idowu (Fourth Defendant)
Ben Bradley (Fifth Defendant)
NSW Supreme Court (Thirty-third Defendant) (Submitting Appearance)
Ernest Schmatt (Thirty-fourth Defendant)
Attorney General (NSW) (Thirty-fifth Defendant)
NSW Supreme Court, Court of Appeal (Thirty-sixth Defendant) (Submitting Appearance)

Representation:

Counsel:
Plaintiff in person
B Bradley (First to Fifth Defendants)

Solicitor:
Makinson d’Apice Lawyers (First to Fifth Defendants)
NSW Crown Solicitor’s Office (Thirty-third to Thirty-sixth Defendants)

File Number(s):

2021/00155246

Publication restriction:

N/A

Judgment

Introduction

1. By way of an Amended Summons dated 23 June 2021 (Amended Summons), the plaintiff, Ms Ayan Hassan, sought various forms of relief against the following defendants: Sydney Local Health District (SLHD) trading as Royal Prince Alfred Hospital (RPAH) (the first defendant), SLDH trading as Institute of Rheumatology and Orthopaedics (IRO) (the second defendant), Dr Roslyn Jones, Head of the Medico-Legal Section for SLHD (the third defendant), Ms Seun Idowu, solicitor (the fourth defendant), Mr Ben Bradley of counsel (the fifth defendant), the NSW Supreme Court (the thirty-third defendant), Mr Ernest Schmatt (the thirty-fourth defendant), the Attorney General of NSW (the thirty-fifth defendant) and the Court of Appeal, NSW Supreme Court (the thirty-sixth defendant). The thirty-third and thirty-sixth defendants filed submitting appearances save as to costs.

2. Two groups of defendants brought separate Notices of Motion dated 28 and 29 June 2021 seeking inter alia the dismissal of the proceedings in the Amended Summons (the motions to dismiss). I will return to the motions to dismiss momentarily but for present purposes note that it is convenient to classify the defendants by reference to the motions. The first to the fifth defendants shall be referred to as the moving defendants and the thirty-fourth and thirty-fifth defendants as the State defendants.

3. As I will explain and as the defendants have amply demonstrated in their written submissions, the proceedings under the Amended Summons are an abuse of process, are frivolous and vexatious proceedings and disclose no reasonable cause of action. There are no prospects of success. Accordingly, the proceedings in their entirety should be summarily dismissed.

Procedural History

4. Before turning to the motions, it is convenient to briefly examine the procedural history leading up to the Amended Summons.

5. The plaintiff commenced substantive proceedings in the Common Law Division of this Court by a Statement of Claim filed on 5 April 2018. She sought damages for injuries which were alleged to have arisen after a biopsy procedure performed at the RPAH on 7 April 2015 (“the primary claim”) (file number 2018/00114499). The background and circumstances of this claim are set out in by Fagan J in Hassan v Royal Prince Alfred Hospital [2019] NSWSC 1651 (Hassan v RPAH) at [4]–[24]. I respectfully adopt his Honour’s background.

6. On 6 July 2018, the plaintiff filed a Notice of Motion (Plaintiff Motion 1) seeking an order for discovery for clinical records against the nominal entity RPAH, together with the IRO, the Medical Board of Australia, Sydney Southwest Pathology Services, Sydney Neurology, the Nursing and Midwifery Board of Australia as well as three named medical practitioners.

7. On 8 October 2018, the SLHD filed a notice of motion (SLHD Motion 1) seeking the proceedings be dismissed pursuant to r 31.36(3) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

8. In November 2018, it became apparent to the SLHD that, due to an administrative error, the copy of clinical records previously provided to the plaintiff was incomplete. On 30 November 2018, Mr Babaseun Idowu swore an affidavit explaining what had occurred.

9. On 7 December 2018, both Plaintiff Motion 1 and SLHD Motion 1 were listed for hearing before R A Hulme J. On that occasion, the SLHD agreed to provide formal discovery of records in response to certain categories of documents requested by the plaintiff. Following argument, his Honour made various orders including that the plaintiff file and serve an expert report in accordance with r 31.36 of the UCPR by 15 March 2019. The balance of the two motions were listed for directions to be heard on 22 March 2019.

10. On 20 December 2018, the plaintiff filed a notice of motion (Plaintiff Motion 2) to set aside the orders made by R A Hulme J on 7 December 2018 pursuant to either r 36.16(1) or r 36.15(1) of the UCPR. Amongst other matters, the plaintiff maintained the orders made by R A Hulme J on 7 December 2018 were “irregular, illegal and against good faith”.

11. On 22 March 2019, Registrar Bradford listed Plaintiff Motions 1 and 2 and SLHD Motion 1 for hearing on 14 June 2019.

12. On 15 April 2019, the plaintiff filed a Notice of Motion (Plaintiff Motion 3) seeking over 30 orders. These included:

• That the orders made by Registrar Bradford on 22 March 2019 for the hearing of the notices of motion be vacated.

• Orders relating to the hearing of a “Case management Application”, together with only Plaintiff Motions 1 and 2;

• That SLHD Motion 1 be dismissed; and

• That the Court set aside the orders of R A Hulme J.

13. On 14 June 2019, Plaintiff Motions 1, 2 and 3 and SLHD Motion 1 were listed for hearing before Fagan J: see Hassan v RPAH. Amongst other orders, the plaintiff was ordered to serve an expert medical report pursuant to r 31.36 UCPR by 19 July 2019. The proceedings were stood over to 26 July 2019.

14. However, on 18 July 2019, the plaintiff filed a Notice of Motion (Plaintiff Motion 4) seeking, inter alia, at least three months to obtain an expert report; leave to file a subpoena for her clinical records; and, an order for the SLHD to produce the plaintiff’s “medical records with the barcodes”.

15. On 2 August 2019, Fagan J extended the order for the plaintiff to file expert evidence until 13 September 2019.

16. On 10 October 2019, the plaintiff filed a Notice of Motion (Plaintiff Motion 5) seeking, inter alia, leave to issue a subpoena on the grounds that the plaintiff does not have a complete set of her clinical records from the IRO and RPAH; and leave to file an Amended Statement of Claim.

17. On 18 October 2019, the proceedings returned before Fagan J. SLHD was ordered to file and serve its defence to the Statement of Claim by 1 November 2019. On 1 November 2019, the SLHD filed and served its defence.

18. On 28 November 2019, Fagan J dismissed the proceedings, in part, for the plaintiff’s failure to comply with r 31.36 of the UCPR: Hassan v Sydney Local Health District [2019] NSWSC 1652 (Hassan v SLHD (No 1)). His Honour also made other orders as set out at [26]. These included that:

• Dismissing Plaintiff Motion 5;

• Ordering, pursuant to r 28.2 of the UCPR, that there is to be a separate determination on the following question: “Whether the plaintiff gave a valid and effective consent for a muscle biopsy to be carried out by the defendant on her left vastus or quadriceps muscle prior to the defendant performing that procedure on 7 April 2015”;

• Making orders regarding evidentiary statements for the parties; and

• Listing the matter before him on 7 February 2020 for directions and allocation of a hearing date for the separate question.

19. On 29 January 2020, the plaintiff filed a Notice of Motion (Plaintiff Motion 6) seeking, inter alia:

• Leave to issue a Subpoena to Produce to IRO and RPAH for the plaintiff’s medical records;

• Leave to amend the Statement of Claim; and

• Orders for various individual doctors and nurses either employed by or affiliated with the SLHD to serve affidavits.

20. The proceedings returned before Fagan J on 7 February 2020. His Honour refused to grant the plaintiff leave to file subpoenas. His Honour made orders for the future progression of this matter including fixing the proceedings for final hearing of the separate question for 25 March 2020.

21. On 24 March 2020, the day prior to the final hearing date, the plaintiff filed a Notice of Motion (Plaintiff Motion 7) seeking transfer of the proceedings to the District Court.

22. At the hearing on 25 March 2020, Fagan J dismissed Plaintiff Motion 7 pursuant to s 146 of the Civil Procedure Act2005 (NSW) (Civil Procedure Act). Judgment in the substantive proceedings was reserved.

23. On 5 May 2020, Fagan J handed down judgment in favour of the SLHD with the plaintiff to pay costs: Hassan v Sydney Local Health District (No 2) [2020] NSWSC 475 (Hassan v SLHD (No 2)).

24. On 24 May 2020, the plaintiff served a Notice of Intention to Appeal the decision in Hassan v SLHD (No 2). The plaintiff listed 30 prospective respondents in addition to SLHD, including the first to third defendantsn

25. On 30 June 2020, the plaintiff filed a Notice of Appeal listing only two respondents, the first defendant and the second defendant (file Number 2020/00153031). In summary, the plaintiff sought the following orders:

• The judgment and orders in Hassan v SLHD (No 2) be set aside;

• Judgment for the plaintiff including the defendants to pay costs of medical experts past and future;

• Transfer of the proceedings to the District Court and a stay of proceedings in the District Court;

• Amendment to the name of the case; and

• Leave to issue a subpoena.

26. On 3 August 2020, Registrar Riznyczok refused to grant leave for the plaintiff in the appeal to issue subpoenas to various bodies to receive the plaintiff’s medical records.

27. On 5 August 2020, SLHD filed a Notice of Motion (SLHD Motion 2) seeking that the appeal be dismissed pursuant to r 51.41 of the UCPR.

28. On 9 August 2020, the plaintiff filed a Notice of Motion (Plaintiff Motion 8) seeking a range of orders including a review of Registrar Riznyczok’s decision.

29. On 18 August 2020, the plaintiff served a Notice of Constitutional Matter seeking to invoke s 78B of the Judiciary Act 1903 (Cth) (Judiciary Act).

30. On 24 August 2020, Gleeson JA heard proceedings relating to SLHD Motion 2 and Plaintiff Motion 8. On 26 August 2020, his Honour dismissed both notices of motion with costs: Hassan v Sydney Local Health District [2020] NSWCA 195 (Hassan v SLHD (NSWCA No 1)).

31. On 7 September 2020, the plaintiff filed a Notice of Motion (Plaintiff Motion 9) which sought a variety of orders including the referral of the proceedings of the Commonwealth Director of Public Prosecutions (CDPP) and referral of Fagan J and Gleeson JA to the Commonwealth Parliament for “misbehaviour and incapacity”.

32. On 23 December 2020, the Bell P (as the Chief Justice then was, with whom Basten and Leeming JJA agreed) dismissed the plaintiff’s application to review Gleeson JA’s decision and refused leave to issue subpoenas: see Hassan v Sydney Local Health District (No 2) [2020] NSWCA 356 (Hassan v SLHD (NSWCA No 2)).

33. On 5 January 2021, the plaintiff filed a Notice of Motion (Plaintiff Motion 10) seeking review by the CDPP of all judgments against her entered in the Supreme Court and Court of Appeal prior to that date. Amongst other matters, the plaintiff sought an order to set aside the judgments in Hassan v SLHD (NSWCA No 1) and Hassan v SLHD (NSWCA No 2) on the grounds that those judgments were made irregularly, illegally or against good faith.

34. On 16 March 2021, the plaintiff filed a Notice of Motion (Plaintiff Motion 11) listing the fourth defendant, Fagan J, Gleeson JA and the thirty-sixth defendant as respondents in addition to the first and second defendant. The relief sought was varied and included:

• An order for the Court to receive new evidence which allegedly supported the plaintiff’s application for leave to issue subpoenas;

• An order for various SLHD employees and its legal advisors to be referred to the NSW Police Force and the CDPP for perjury prosecutions;

• An order that for all previously filed Notices of Motion brought by the plaintiff to be heard and for the judgment in Hassan v SLHD (NSWCA No 2) to be set aside;

• An order to amend the appeal after subpoenas have been issued; and

• An order for “a fresh trial” in this Court once the plaintiff has issued subpoenas.

35. On 20 May 2021, Brereton JA entered a guillotine order requiring the plaintiff to serve her submissions in the appeal by 21 June 2021: see Hassan v Sydney Local Health District [2021] NSWCA 97 (Hassan v SLHD (NSWCA No 3)).

36. On 7 June 2021, the Bell P (as the Chief Justice then was, with whom Basten and Leeming JJA agreed) dismissed Plaintiff Motion 10: Hassan v Sydney Local Health District (No 2) [2021] NSWCA 122 (Hassan v SLHD (NSWCA No 4)).

37. On 22 June 2021, the plaintiff’s appeal was dismissed for failure to file submissions in support of the appeal: see Hassan v SLHD (NSWCA No 3).

38. On 31 May 2021, the plaintiff filed a summons seeking judicial review in the Common Law Division of this Court. The summons listed 32 defendants including the moving defendants. On 9 June 2021, the plaintiff was granted leave by Registrar Jones to amend that summons to add further defendants.

39. On 23 June 2021, the SLHD was served with the Amended Summons. Under the Amended Summons, a number of individuals and entities affiliated with the SLHD were removed and the thirty-third to thirty-sixth defendants were added.

Relief Sought in the Amended Summons and Motions to Dimiss

40. The Amended Summons sought various relief from this Court. The State defendants helpfully categorised the relief sought as follows (in each case the reference to “orders”, “grounds” or “details of decisions” correspond to headings or descriptions within the amended summons):

1. Category 1: Orders to “suspend” or “remove” certain judicial officers or refer them to the Commonwealth Parliament or impose restrictions on their movement (orders 1, 3 and 28 and grounds 33 and 34);

2. Category 2: Orders referring unidentified persons to the police or the CDPP (orders 19 and 27);

3. Category 3: Orders “for the legislation to be changed” (orders 16 and 17);

4. Category 4: Orders seeking that orders of this Court or the NSW Court of Appeal (made in the earlier proceedings) be set aside or quashed (orders 9, 20-22, 24-26, 29-30 and 46, read with paragraphs 2(a)-(ii) and 3 under “Details of Decisions”);

5. Category 5: Orders seeking relief in respect of purported decisions said to have been made by the first to fifth defendants (orders 29-30 read with paragraphs 2(jj) and (ll)-(nn) and 3 under “Details of Decisions”);

6. Category 6: An order seeking that a decision of the thirty-fifth defendant not to intervene in the earlier proceedings be quashed or set aside (orders 29-30 read with paragraphs 2(kk) and 3 under “Details of Decisions”);

1. Category 7: An order seeking relief in respect of a decision or decisions said to have been made by thirty-fourth defendant on 15 October 2019 (orders 29-30 read with paragraphs 2(oo) and 3 under “Details of Decisions”);

2. Category 8: Orders concerning the provision of reasons for certain decisions (orders 18 and 33-34 and paragraphs 2 and 5 under “Details of Decisions”);

3. Category 9: Other procedural orders, some of which relate to the present proceedings, some of which relate to the earlier proceedings, and some of which do not clearly identify the proceedings to which they relate (orders 2, 10-15, 23, 31-32, 35-36, 38 and 40-41);

4. Category 10: Orders for costs in this and the earlier proceedings (orders 39, 43 and 44).

41. The moving defendants filed a Notice of Motion on 28 June 2021 (moving defendants’ motion) seeking the following orders:

1. An order dismissing the entirety of the proceedings brought against them pursuant to rule 13.4 of the UCPR; or in the alternative,

2. An order striking out all paragraphs of the plaintiff's Amended Summons that pertain to them, pursuant to rule 14.28 of the UCPR.

3. An order that the plaintiff is to pay their costs of the proceedings.

4. Such other orders as the Court deems fit.

42. The State defendants filed a Notice of Motion on 29 June 2021 (State defendants’ motion) seeking:

1. An order dismissing the entirety of the proceedings brought against the thirty third to thirty sixth defendants, pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005.

…

2. In the alternative to order 1, an order in the Court’s inherent jurisdiction striking out all paragraphs of the plaintiff’s Amended Summons that pertain to the thirty third to thirty sixth defendants.

3. An order that the plaintiff pay the costs of the Thirty Fourth and Thirty Fifth Defendants.

4. Such further or other orders as the Court deems fit.

Proceedings on the Amended Summons and Motions to Dismiss

43. Before turning to the substance of the defendants’ motions to dismiss, it is necessary that I record the procedural background leading to the publication of this judgment.

44. The motions to dismiss were filed on 18 and 29 June 2022. Both the moving and State defendants had filed written submissions on or about 6 August 2021.

45. The motions to dismiss were listed before me on for 1 October 2021. In the days leading up to the hearing – on 24, 27 and 28 September 2021 – the plaintiff sent emails and documentation to my Associate seeking an adjournment of the hearing until 30 November 2021. The adjournment was opposed by the defendants.

46. In response to this request, my Associate forwarded a preliminary view to the parties that would provide six weeks for the plaintiff to file written submissions; a further one week for the defendants to file written submissions in reply; and for the motions to dismiss, other than costs, to be determined on the papers. The parties were given an opportunity to express a contrary view, but none was expressed. I then delivered an ex tempore judgment, which I reproduce in full as follows:

“1. HIS HONOUR: By notices of motion filed on 28 and 30 June 2021 (“the motions”), respectively, the first to fifth and 34th and 35th defendants (“the defendants”) sought to have proceedings for judicial review brought by Ayan Hassan dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005. The grounds for the motion include that the proceedings are misconceived and disclose no reasonable cause of action against the defendants, are an abuse of process and otherwise frivolous and vexatious.

2. The notices of motion were listed before this Court today. The defendants have filed written submissions in support of their respective applications.

3. On 24, 27 and 28 September 2021, Ms Hassan sent emails and documentation to the parties and the Court seeking an adjournment of the hearing until 30 November 2021 on the grounds of ill-health and in order to obtain legal representation. That application was supported by a medical certificate issued by Dr Nadir Obeid on 23 September 2021. The medical certificate indicated that Ms Hassan was being treated by Dr Obeid for severe pain and severe depression during the period 23 September 2021 to 30 November 2021. Dr Obeid states in his medical certificate that Ms Hassan will be unfit to continue her usual occupation or “represent herself in court during the specified dates”.

4. The defendants opposed Ms Hassan’s application for adjournment and relied upon the affidavit of Ms Babaseun Olubunmi Idowu affirmed 28 September 2021, in which Ms Idowu refers to the history of substantive proceedings commenced by Ms Hassan and her actions in respect of the same. Reference is made to a substantive claim brought in this Court in 2018. The defendants indicated they were ready to proceed.

5. By a communication forwarded by my Associate to the parties on the evening of 29 September, the Court expressed a preliminary view with respect to the resolution of the adjournment application whereby an adjournment on specific terms would be granted in all the circumstances. Ms Hassan would be provided with a period of 6-weeks in which to file written submissions in reply to the written submissions filed on behalf of the defendants. Under this preliminary view, the Court contemplated a limited period for reply submissions, if the defendant sought to make them, of 1-week following the filing of written submissions by Ms Hassan. The Court then proposed to determine the respective motions on the papers without further oral hearing. Any questions of costs would be reserved upon the disposition of the motions.

6. The parties were given the opportunity to express any contrary view before a short hearing this morning. In the absence of any such contentions (and there have been none) it was indicated the Court would simply convert its preliminary view into a final approach and the proceedings listed for 1 October 2021 will be vacated save for the short listing of the adjournment application.

7. In the circumstances, the Court makes orders granting the adjournment on the terms foreshadowed and vacates the date fixed for hearing of motions.

8. That approach is, in my view, consistent with Ms Hassan’s application and is the just disposition of the respective positions of the parties.

9. In the circumstances, the Court makes the following orders:

(1) The hearing of the notices of motion filed 28 and 30 June 2021 by the defendants listed for 1 October 2021 is vacated.

(2) Ms Hassan is directed to file and serve written submissions with respect to the motions on or before 12 November 2021.

(3) The defendants shall file and serve written submission in reply by 19 November 2021.

(4) The motions shall be determined on the papers.”

These orders should be shall hereafter be referred to as the orders.

47. Following the making of those orders, the plaintiff filed submissions on 12 November 2021. However, contrary to the intent of the orders, her submissions largely did not engage with the substance of the motions to dismiss. I will set out her submissions below as well as my understanding of what was advanced. The plaintiff’s submissions are as follows:

According to the VEXATIOUS PROCEEDINGS ACT 2008 - SECT 8 - Making of vexatious proceedings order: "(3) An authorised court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard." I am not fit now to be heard.

I filed a summons on the 23rd of June 2021, which was denied to be heard. I filed an affidavit yesterday, with the medical certificates and psychologist report saying that I cannot do anything until January. Also, my GP certificate that I have to look after my mental health so I can't do anything until March. I emailed to everyone including Justice Walton

My case is always either in the chambers, as my case is default judgement, or on the papers, so the public do not know. It is unfairness of procedure.

The title of proceedings is always changing, and my case is never dealt with. Their Notice of motions only dealt with.

This is what was happening with my case from the beginning, the issue of my case was that it was never looked at since the judgement order 7th of December 2018 my discovery. The lawyers and the court are always focusing how to cover up what the hospitals and the doctors do to the public, no matter how much evidence I had provided, that is why my mental health deteriorated and never improved because of consistent datelines the court placed and bias. Until March, when my mental health improves, I cannot do anything.

I filed my affidavit with the case name and emailed already. Also, I am emailing to the parliament and the media, to see what is going on with the Australian health system and justice system, and how they destroyed my family and my mental health.

I filed an affidavit yesterday 11th of November 2021 with the title of my summons, and I will file the first page again and email it. That is the same affidavit that I put together all affidavits, showing the evidence how the health and justice systems are not working and discriminate against the Australian public. No one can say they didn't receive it because it is an email that I am forwarding to everyone including the media and parliament. If Ken Cush firm can send all the media I can do too.

I am emailing with these submissions, the two written submissions of the defendants, the email that Ernest Schmatt sent without any report or investigation, and Mr Ernest Schmatt should be prosecuted because he lied in the affidavit with his lawyer and protected the Judges's misconduct.

Also, I am sending the email that Sydney Local Health District sent me in 2015 (Jenae O'Sullivan), that there is no medical record because they used me as a guinea pig for research and created a GP who is not my GP (Edward Lurie) so that they could take my tissues and practice bone tumour surgery on me. I will also email my summons of the 23rd of June 2021.

Honourable Justice Walton, I humbly request that you give me the justice that I have been denied, and destroyed my family and health. Please give me an opportunity to get better and get a legal representative as everyone else has in the Supreme Court.

That is all I can say.

48. I understand the effect of those submissions is as follows:

1. The plaintiff opposes the motions to dismiss;

2. The plaintiff is not fit to be heard and as such, the court cannot make a vexatious proceedings order, pursuant to s 8 of the Vexatious Proceedings Act2008 (NSW);

3. That the plaintiff filed a Summons on 23 June 2021 and was denied the opportunity to be heard;

4. That the plaintiff’s case is subject to procedural unfairness because it is has been heard in chambers, on the papers or has received a default judgment, rather than being in the public eye;

5. There have been delays throughout the progression of the case and lawyers and the court are attempting to protect doctors and hospitals;

6. That the health and justice systems are not working and are discriminating against the Australian public;

7. That Mr Schmatt should be prosecuted because he lied in an affidavit with his lawyer and protected the Judges’ misconduct;

8. That Sydney Local Health District used the plaintiff for research and created a GP, Mr Edward Lurie, to take tissue from the plaintiff and practice bone tumour surgery on the plaintiff. The medical record of someone who was meant to have bone tumour surgery is in the SLHD’s computer system, instead of the plaintiffs; and

9. The plaintiff seeks the opportunity for her health to improve and to obtain legal representation.

49. Even though no leave was granted, an affidavit affirmed 11 November 2021 was filed with the plaintiff’s submissions. In summary, the affidavit included

1. Certificates from the plaintiff’s general practitioner and psychologist who attested that the plaintiff is suffering from poor mental and physical health and is not currently able to prepare submissions and meet deadlines;

2. An email from SLHD, the contents of which request an extension of time for SLHD to search their off-site storage to complete a search under the Government Information (Public Access) Act 2009 (NSW) (GIPA). The plaintiff submitted that there was no storage, that the medical record is in the computer and all that is required is for someone to print it. The plaintiff submitted that there is a medical record of someone who was supposed to have a bone tumour surgery in place of her medical record;

3. A letter from the SLHD Right to Information Coordinator which explained the documents which fall under the scope of the plaintiff’s GIPA application have previously been provided to the plaintiff, pursuant to an order for discovery made by R A Hulme J in this Court on 7 December 2018. Accordingly, the SLHD refused to deal with the plaintiff’s application. The plaintiff contested this and submitted that there was in fact no medical record for her;

4. A letter from the Australian Health Practitioner Regulation Agency (AHPRA) which the plaintiff submits proves that Dr Min Wang is not a registered medical practitioner. However, AHPRA explained that Dr Wang was never claiming to be a registered medical practitioner, but a scientist and laboratory manager. The plaintiff submitted that AHPRA failed to provide Dr Gikas’ registration and that Dr Michael Barnett and Dr Roger Pamphlett are not pathologists, as claimed.

50. Despite not seeking leave or leave being granted, the plaintiff filed a document titled “Written Submissions” on 13 February 2022. This document, however, do not appear to be written submissions. Rather, they appear to raise two matters.

51. First, the document attaches a letter from a psychiatrist, Dr Fatma Lowden, dated 31 December 2021. Dr Lowden informed the Court that the plaintiff is being treated for chronic anxiety and depression with PTSD with suicidal thoughts. The letter states: “On mental state examination she has depressed mood, sad and anxious affect, mistrust with health and justice systems and occasional suicidal thoughts with no intent or plans.” The letter noted that the plaintiff is taking medications and that it is still “early days of her treatment”. In the conclusion, it states that “[s]he will be able to attend her Court matters in June 2022”.

52. Secondly, the plaintiff appears to attach a letter sent from Tich Pasi, Principal Solicitor for Prudential Legal Solutions, to RPAH, IRO, the Brain and Mind Research Institute and the University of Sydney on 22 December 2021 putting those organisations “on notice that you must preserve all the medical records in whatever form and all notes in relation to Ms. Hassan – from 2013 to date – because these are subject to ongoing litigation”. The document filed by the plaintiff requesting the Court make an order for the preservation of her medical records from 2013 to date “so that they don’t make the excuse that they destroyed my medical records, until I get better”.

53. On 15 February 2022, there defendants indicated, by email communication to my Associate, that they sought for a directions listing before the Registrar to be vacated and to clarify that they did not have further written submissions to be filed pursuant to order (3) of the orders.

54. The plaintiff filed another document titled “written submissions” on 20 March 2022. Those submissions also attached a letter from Dr Lowden dated 9 March 2022. Dr Lowden’s letter said that the plaintiff “suffers from severe exacerbation of her illness symptoms every time she receives any correspondence from the Courts and lawyers which has been interfering with her therapy”. Dr Fatma says the plaintiff “is not fit to deal with her Court matters” and “[s]he will be able to attend her Court matters in December 2022”. In the written submissions, the plaintiff states she is having treatment psychologically every week and needs to look after her mental health. The plaintiff says that the orders, directions and communications from the Court is making her treatment longer.

55. In relation to the motions to dismiss, I listed judgment for 26 July 2022. As I was to be sitting in Nowra for a criminal trial, I directed that the parties may appear by audio-visual link. This was communicated by my Associate to the parties seven days prior (on 19 July 2022).

56. On 24 and 25 July 2022, the plaintiff sent my Associate a series of emails. The plaintiff attaches again the letter from Dr Lowden on 9 March 2022. Her emails state:

1. The plaintiff’s case was not in the District Court “because the Supreme Court refused to transfer it”. The plaintiff asked “why is it now in the local court in Nowra?”;

2. The plaintiff’s case was “never in open in public, but always done in chambers in the judges offices as it is a default judgement [sic] payment”. She alleges that judges have abused her and she developed post-traumatic stress disorder from “what was done to me in the court”.

3. She alleges that “Justice Andrew Bell is now Chief Justice because he dismissed my case” and that his Honour “amended” her appeal to require leave to appeal;

4. She states that “I have sent all the evidence since 2018, how they treat us like guinea pigs and withhold the subpoenas, and if we stand up for the public they [the judges] withhold evidence and refuse to issue subpoenas and this is how we are treated”;

5. Appears to seek an oral hearing in Court after December 2022.

57. Insofar that the plaintiff is seeking orders to preserve evidence or freeze assets (whether under Pt 25 of the UCPR or another source), such orders cannot be sought by the filing of written submissions. An application for court orders is to be made by motion and a person is required to file and serve a notice of motion: UCPR rr 18.1 and 18.2. It is clear the kind of orders sought by the plaintiff were not properly initiated. I accept that the plaintiff, who is self-represented, may not be aware of the precise requirements in the UCPR. In this respect, I would follow the recent statement of Bell P (as the Chief Justice then was) in Duraisamy v Sydney Trains [2019] NSWCA 269 at [25]:

“I would add only this, and it is to note that Senior Counsel for the respondent relies upon the High Court’s endorsement in Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806 at [47] of the observation of Samuels JA in Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep):

‘the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.’”

58. Without being brought by proper means, it is not appropriate for me to make those orders. In any case, it is highly doubtful that Ms Hassan’s records are relevant to the relief being sought in the Amended Summons (although they may have relevance for her appeal from the principal proceedings).

59. Insofar that the plaintiff is seeking an adjournment, it was unclear at first glance whether she is seeking an extension of time to file further written submissions or an adjournment from the giving of this judgment.

60. With respect to the former, leave to file further submissions would be necessary. This is because providing written submissions after the conclusion of argument, without leave, is not permitted and has been the subject of judicial criticism: Huynh v Attorney General (NSW) (2021) 396 ALR 422; [2021] NSWCA 297 at 483 [249] (Leeming JA); Wollongong City Council v Papadopoulos [2019] NSWCA 178 at [49] (Leeming JA with whom Basten and McCallum JJA agreed). In NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48, McHugh A-CJ, Gummow, Callinan and Heydon JJ said at 159 [192]:

“It is impermissible to file further submissions without leave, and this cannot be evaded by adding on to submissions filed with leave other material for which leave should have been obtained.”

61. I do not consider that there is an appropriate basis to grant leave to file further written submissions or adjourn the giving of this judgment. First, the application for the adjournment was made in a particular context, namely, the history of the proceedings leading up to the filing of the Amended Summons (and, before that, the Summons). That fact was properly relied upon by the defendants.

62. Secondly, the application to vacate the listing on 1 October 2021 was given on a very particular basis, namely, upon then stated medical grounds which required an adjournment. Importantly, an ample adjournment was granted was for six weeks. No opposition to that course was taken by the plaintiff. As stated in my ex tempore decision, the grant of the application required a balancing of the respective interests for the just disposition of the proceedings which in essence married the first factor that I have identified with this reason.

63. The written submissions filed by the plaintiff on 12 November 2021 did not expressly seek an extension of time. To the extent that there was a further adjournment application (which was rather faint and difficult to discern), a submission by its terms indicated a conscious decision not to engage with the program for submissions which was generated upon the basis of the plaintiff’s own application. It is true that later applications were made for an adjournment but it does not follow that these applications were necessarily connected to the original adjournment application.

64. It appears to me that, in substance, the emails sent by the plaintiff in Fberuary and March are not directed to putting further submissions to these motions to dismiss but rather to delay the handing down of this judgment. Whilst I am sympathetic to diagnosed condition of the plaintiff, the material supplied would not seem to properly support judgment being delayed. It is also noted that there are some peculiarities with the letter from Dr Lowden. Dr Lowden does not explain how she reached her conclusions that the plaintiff would be fit to deal with Court matters in June 2022 (in the letter dated January 2022) and then in December 2022 (in the letter dated March 2022). It is unclear whether her Court matters are a reference to only this proceeding or whether they relate to other matters as well. No explanation was given why six- or nine-month periods were selected or how it corresponded to the plaintiff’s medical care and treatment. Relevantly, no explanation was given on how the June 2022 date was extended to December 2022 – a period of six months. Without any explanation from Dr Lowden, it is difficult to accept how an email exchange between the defendants and my Associate (that copied the plaintiff, as is usual practice) confirming they did not wish to file written submissions in reply and to vacate a directions listing would make the plaintiff unfit to attend to all Court matters for an additional six months.

65. Thirdly, this is not a case where there is some demonstrable merit to the proceedings brought by the plaintiff or where it may be contemplated that, when placed in an appropriate form, some basis in merit may be identified. As I will explain, I consider the Amended Summons to be devoid of merit and hopeless.

66. Fourthly, there are aspects of the Amended Summons that are scandalous against current judicial officers, members of the legal profession and officers or former officers of the Judicial Commission of New South Wales (the Commission). When the current proceeding commenced by Summons, almost every person who had a connection to the principal proceedings had been indiscriminately joined. This included doctors and nurses employed at RPAH and IRO, those involved in the administration of justice (including legal representatives of the defendants, and Judges and Registrars of this Court) and officers of the Commission. Although some of the named individuals are no longer parties in the Amended Summons, it is clear, for reasons explained below, that these proceedings are an abuse of the Court’s processes.

67. Fifthly, I am guided by the principles for the exercise of the Court’s discretion to adjourn hearings, and case management more broadly, that were enunciated in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27. Chief Justice French (with whom Gummow, Hayne, Crennan, Kiefel and Bell JJ agreed at [116]) stated at [5] and [30],

“5. … [T]here is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.

…

30. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.”

68. The circumstances of this case are that the plaintiff has received ample opportunity to comment on the issues raised in the material before her. The defendants had filed their written submissions on or about 6 August 2021. By the orders that I made, the plaintiff had until 12 November 2021 – about three months – to make her response. She took advantage of the opportunity given by the Court for a six-week adjournment after the hearing. In that time, she has been unwilling to engage with the issues raised by the defendants. I accept that she is self-represented but there has been ample notice of the arguments made by the defendant. In these circumstances, it is doubtful what an oral hearing and extension of time would possibly yield: see Cawley v Casey [2007] QSC 5 at [32] (Douglas J).

69. Any further delay to allow written submissions to be filed or an oral hearing conducted in December 2022 would occasion prejudice to the defendants in the form of undue expense and effort, in circumstances when litigation began in 2018 – some four years ago – and have involved multiple hearings and decisions in the Common Law Division and Court of Appeal. The plaintiff’s claim in the principal proceedings were dismissed and an appeal by her was also dismissed.

70. In my view, there is no proper basis to depart from the orders made on 1 October 2021 wherein the plaintiff was given a further opportunity to make submissions in relation to the motions to dismiss. Whilst I am sympathetic to the plaintiff’s mental health conditions, a further adjournment to December 2022 to allow her to file more written submissions (and, as a matter of procedural fairness, to then allow submissions in reply from the defendants) or conduct an oral hearing would not be consistent with the obligation under s 56 of the Civil Procedure Act to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”.

71. I emphasise that it is not the intention of the Court to exacerbate the plaintiff’s mental condition or affect her recovery. In my view, mental health is a very serious issue. When the letter by Dr Lowden, dated 31 December 2021, had been brought to my attention in February this year, I had contemplated delaying the handing down of this decision because of my concerns for the plaintiff’s serious mental health issues. As noted above, that letter had stated that the plaintiff would be fit to attend to her court matters in June 2022. A judgment at the end of July would fall outside that time. However, it would be unworkable and unreasonable for the Court to accede to a further delay to December 2022 in these circumstances. The judgment was reserved from November 2021 – some eight months ago. And there is no explanation whatsoever why the time for when the plaintiff would be fit to deal with her self-initiated proceedings had changed by six months from June to December 2022. This unexplained delay in the broader context of the Amended Summons is untenable. The prejudice to the defendants, who filed the motions to dismiss almost eleven months ago, is growing. In all the circumstances, an adjournment to delay the handing down of this judgment should not be granted.

Relevant Legislation and Principles

72. The power to summarily dismiss proceedings is set out in r 13.4 of the UCPR, which provides:

“13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings--

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).”

73. In Global Partners Fund Ltd v Babcock & Brown Ltd (In liq) (2010) 267 ALR 144; [2010] NSWSC 270, Hammerschlag J (as his Honour then was) stated at 159 [74] (Global Partners):

“Part 13 r 13.4 UCPR gives the court a discretionary power to dismiss proceedings where the plaintiff’s case is so hopeless that it cannot possibly succeed. A party will not be denied a contested merits hearing unless the absence of a cause of action is clearly demonstrated. If it is demonstrated that there is a real question to be tried the court should not determine the matter summarily. Summary dismissal brings the proceedings to end at an interlocutory stage. The test is a demanding one and exceptional caution is required: General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125 at 129; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; Webster v Lampard (1993) 177 CLR 598; Agar v Hyde (2000) 201 CLR 552.”

74. In Uger v Attorney General for New South Wales [2019] NSWCA 86, White JA (with whom Meagher and Brereton JJA agreed) commented at [70]:

“One of the purposes of the power in r 13.4 of the UCPR to dismiss a proceeding summarily as frivolous or vexatious or as disclosing no reasonable cause of action or as being an abuse of the process of the court, is to save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings which raise no real question of fact or law. Another purpose is the protection of the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications.”

75. The principles attending summary dismissal are well-known. While the applicable test has been variously expressed, “all of the verbal formulae” merely indicate the need for “a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at 576 [57] (Gaudron, McHugh, Gummow and Hayne JJ) (Agar).

76. For the defendants to succeed, the claim may be “so obviously untenable that it cannot possibly succeed” even if argument is required “to evoke the futility of the plaintiff’s claim”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129–130 (Barwick CJ) (General Steel).

77. The test to be applied is very demanding. There must be “a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial in the ordinary way”: Agar at 576 [57] (Gaudron, McHugh, Gummow and Hayne JJ). In Dey v Victorian Railways Commissioners (1949) 78 CLR 62, Dixon J said at 91:

“A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury … but once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”

78. In Webster v Lampard (1993) 177 CLR 598, Mason CJ, Deane and Dawson JJ emphasised the stringency of the test to be applied before entering summary judgment. Their Honours said at 599 and 603:

“The power to order summary judgment must be exercised with ‘exceptional caution’ and ‘should never be exercised unless it is clear that there is no real question to be tried.’ …

Nowhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact.”

79. The approach to summary dismissal in a case turning on questions of law, rather than evidence, was discussed by Macfarlan JA (with whom Spigelman CJ and Allsop P, as his Honour then was, agreed) in Leerdam v Noori (2009) 255 ALR 553; [2009] NSWCA 90 at 566 [75]:

“Particular caution is required where factual questions are involved as it is difficult to predict in advance of a final hearing the precise manner in which the evidence will unfold. While caution is also required where, as here, the application turns on questions of law and there is no reasonable prospect that deficiencies in what is pleaded will be able to be cured by amendment, opportunities to summarily dismiss or strike out claims will arise more frequently.”

80. The above principles applicable to summary dismissal of proceedings were summarised by Macfarlan JA (with whom Beazley P, as Her Excellency then was, agreed) in O'Brien v Bank of Western Australia [2013] NSWCA 71 at [3]:

“The High Court decision in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles stated in it are of general application:

(a) On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]).

(b) The critical question can be expressed as whether there is more than a "fanciful" prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the court to allow the action to go forward (at [54] in the judgment of the plurality). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success (ibid).

(c) Powers to summarily terminate proceedings must be exercised with exceptional caution (ibid at [55]; see also French CJ and Gummow J at [24]).”

81. Where a deficiency is curable by amendment, the Court may instead strike out the proceeding. As this proceeding is commenced by Summons, not a Statement of Claim, r 14.28 of the UCPR does not strictly apply: see UCPR r 14.1 and Vangu Kitoko v State of New South Wales [2021] NSWSC 545 at [42], [44] (N Adams J).

82. Nevertheless, “the court has, as a necessary incident of its jurisdiction, the power to control its own proceedings and procedure in the same way as if the proceedings were conducted on pleadings in the strict sense”: Global Partners at 159 [77] (Hammerschlag J, as his Honour then was).

83. I also note, at the outset, that when the jurisdiction of the Court to entertain a particular cause of action is challenged, the Court is required to satisfy itself that it has jurisdiction before proceeding further with the hearing of the proceedings: R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 215 (Gibbs J); National Parks & Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 585 (Kirby P). Moreover when that question is raised, it is incumbent upon the party invoking the Court’s jurisdiction to demonstrate that such jurisdiction exists: Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 at 426 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Meehan v Commissioner of Police (1999) 47 NSWLR 284; [1999] NSWCA 292 at 285 [4] Mason P).

Consideration

Category 1: Orders to “suspend” or “remove” certain judicial officers or refer them to the Commonwealth Parliament or impose restrictions on their movement (orders 1, 3 and 28 and grounds 33 and 34)

Orders 1 and 3 – Suspension and Removal of Judicial Officers

84. Orders 1 and 3 in the Amended Summons seek orders to “suspend” or “remove”, respectively, “all the judicial officers involved in this case”, purportedly “pursuant” to ss 40-43 of the Judicial Officers Act 1986 (NSW) (Judicial Officers Act). Although the matter is not entirely clear, these orders are understood to refer to the thirty-third to thirty-eighth and fortieth defendants in the original Summons, namely, Fagan J, R A Hulme J, Gleeson JA, Bell CJ, Basten JA, Leeming JA and Brereton JA, respectively. They were struck out in the Amended Summons and are not presently parties to the proceeding.

85. The Amended Summons does not disclose any available cause of action or jurisdiction in relation to this relief. None exists.

86. It is convenient to start with order 3, which seeks the “removal” of judicial officers. This issue is conclusively answered by s 53 of the Constitution Act 1902 (NSW) (Constitution Act), which provides, relevantly:

“53 Removal from judicial office

(1) No holder of a judicial office can be removed from the office, except as provided by this Part.

(2) The holder of a judicial office can be removed from the office by the Governor, on an address from both Houses of Parliament in the same session, seeking removal on the ground of proved misbehaviour or incapacity.

(3) Legislation may lay down additional procedures and requirements to be complied with before a judicial officer may be removed from office.”

87. The term “judicial office” is defined, in s 52(1)(a) of the Constitution Act, to include the “Chief Justice, President of the Court of Appeal, Judge of Appeal, Judge, Associate Judge or Master of the Supreme Court”. The “Houses of Parliament” referred to in s 53(2) are plainly the Houses of the Parliament of New South Wales: see Interpretation Act 1987 (NSW) s 12(1)(a).

88. Legislation of the type envisaged by s 53(3) of the Constitution Act has been enacted (such as s 41 of the Judicial Officers Act), upon which the plaintiff relies. That provision imposes an additional requirement to be complied with before a judicial officer may be removed from office, being a requirement that the Conduct Division of the Commission make a report to the Governor setting out its opinion that the matters referred to in the report “could justify parliamentary consideration of the removal of the judicial officer on the ground of proved misbehaviour or incapacity.” Section 41 of the Judicial Officers Act and s 53 of the Constitution Act is plainly inconsistent with the existence of a power in this Court to “remove” Judges.

89. In Lazarus v State of New South Wales [2018] NSWSC 998, I summarily dismissed a Statement of Claim seeking orders that a Magistrate “undergo counselling and training” and “be removed from exercising her judicial functions” on the basis of s 53 of the Constitution Act: at [7], [25]-[26]. The result should be no different in this case.

90. Turning to order 1, the only power by which a judicial officer may be “suspended” is that which is conferred by s 40 of the Judicial Officers Act. Section 40(1) provides:

“40 Suspension of judicial officers

(1) If—

(a) a complaint is made about a judicial officer or a report is made by the Conduct Division setting out its opinion that a matter could justify parliamentary consideration of the removal of a judicial officer from office, or

(b) a judicial officer is—

(i) charged in New South Wales with an offence that is punishable by imprisonment for 12 months or upwards or charged elsewhere than in New South Wales with an offence that if committed in New South Wales would be an offence so punishable, or

(ii) convicted in New South Wales or elsewhere of such an offence, or

(c) a formal request, within the meaning of Part 6A, has been made in respect of a judicial officer,

the appropriate authority may suspend the officer.”

91. This power is unavailable in proceedings of the present type, for at least two reasons. First, the “appropriate authority” upon which s 40 confers power is the relevant head of jurisdiction, being the Chief Justice: see Judicial Officers Act ss 3(5)(a) and 43. Section 40 confers no power on the Supreme Court such as might be exercisable by a Judge sitting in the Common Law Division. Secondly, the power under s 40(1) is enlivened only in the circumstances described in paragraphs (a)-(c). None of those circumstances obtains in the present case.

Order 28 – Referral of Judicial Officers to the Commonwealth Parliament

92. Order 28 seeks that Bell P (as the Chief Justice then was), Basten and Leeming JJA be subject to a “referral … to the Commonwealth Parliament, pursuant to misbehaviour and incapacity”. It purports to rely upon the “Parliamentary Commissions Act 2012”. I understand that to be a reference to the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth) (JMIPC Act)). The plaintiff relied upon a number of provisions of the Crimes Act 1914 (Cth) and the Criminal Code Act 1995 (Cth) as well as rr 36.16(3a) and 36.15(1) of the UCPR and ss 69(3)-(5) of the Supreme Court Act 1970 (NSW) (Supreme Court Act).

93. Again, the plaintiff has identified no available power by which this Court could make the referral sought, nor any basis to do so if such power were identified. Again, no power exists.

94. The JMIPC Act provides for a mechanism whereby the Commonwealth Parliament may, by resolution, establish a Commission to investigate a “specified allegation of misbehaviour or incapacity of a specified Commonwealth judicial officer”. Section 7 of the JMIPC Act defines a “Commonwealth judicial officer” to mean a “Justice of the High Court” or “a judge or justice of a court created by the [Commonwealth] Parliament”. It plainly does not include Judges of the Supreme Court or Court of Appeal. In any case, this legislation confers no power at all with respect to an allegation concerning the Judges identified in order 28. It also confers no power on any person, let alone this Court, to make a “referral” to the Commonwealth Parliament.

95. The various offence provisions referred to in order 28 might be understood to constitute allegations supporting the purported “misbehaviour or incapacity” in respect of which a referral is sought. Those allegations of criminality are scandalous and ought not to have been made. In any event, they provide no basis upon which a power to make the referral sought could be identified or exercised. Therefore, order 28 sought by the plaintiff also has no prospects of success and are an abuse of process.

96. The provisions of the UCPR and the Supreme Court Act referred to in order 28, which relate respectively to the Court’s powers to set aside or vary judgments and orders and this Court’s inherent supervisory jurisdiction to grant prerogative relief, are of no clear relevance to the relief sought in that order.

Grounds 33 and 34

97. These grounds appear to separately seek relief against judges involved in the earlier proceedings (and others). They are as follows:

“34. No judges or registrars can retire until this case is finished.

35. Anyone who is involved in this case cannot retire or move until this case is finished.”

98. Similar relief is sought in respect of the third defendant in ground 32.

99. Apart from the irony that the plaintiff seeks relief that prevents certain Judges from retiring yet and also seeks orders that those same Judges be removed, no cause of action at all is suggested in relation to these “grounds”. Again, none exists. Section 44 of the Judicial Officers Act, which is enacted under s 55(2) of the Constitution Act, provides that the maximum retirement age for Judges is 75 years. No order of this Court can detract from those plainly clear legislative provisions.

Further Basis for Dismissal in Respect of Relief Sought in Orders 1, 3 and 28

100. The plaintiff has not identified any jurisdiction or cause of action in respect of the relief sought against or with respect to judicial officers in orders 1, 3 and 28 and grounds 33 and 34. It is not necessary, and would involve some artificiality, to consider whether relief of the type sought would also be precluded by the doctrine of judicial immunity, that is, “the fundamental principle of our law that a judge of a superior court is immune from civil liability for acts done in the exercise of his judicial function or capacity”: Rajski v Powell (1987) 11 NSWLR 522 at 535-536 (Kirby P as his Honour then was).

101. However, what was said by Adamson J in Hammond v State of New South Wales [2013] NSWSC 1930, in the context of judicial immunity, applies equally in respect of orders of the type sought in relation to judicial officers in this case. I respectfully adopt her Honour’s statement at [64]:

“Proceedings instituted against judicial officers in contravention of judicial immunity ought be summarily dismissed, whether on the ground that they amount to an attempt to re-litigate issues that have already been heard and determined to finality (Bar-Mordecai v Bryson and Ors [2002] NSWSC 815; Attorney General v Bar-Mordecai [2005] NSWSC 142 at [65]-[66]) or because they are otherwise an abuse of process.”

102. Orders 1, 3 and 28 (and others discussed below) should be understood to be a means by which the plaintiff seeks to ventilate complaints about what has occurred in previous cases involving her. There is no basis upon which they could be made. For the reasons given by Adamson J, the proceedings in respect of this relief should be dismissed as an abuse of process.

Category 2: Orders referring certain persons to the police or the CDPP (Orders 19 and 27)

103. Order 19 seeks “an order for all those involved in this summons to be referred to Police and [CDPP]”. Order 27 similarly seeks “an order for referral to the [CDPP]”, without expressly identifying who or what is to be referred.

104. There appears to be a large number of allegations of criminality of various kinds made throughout the Amended Summons. No particular criminal conduct is identified with any clarity. Again, these allegations are scandalous and ought to not have been made.

105. Orders 19 and 27 each refer to s 51 of the Civil Procedure Act. That provision relates to proceedings before an arbitrator and has no apparent connection to the plaintiff’s cases. Order 19 also appears to refer to ss 58 and 62 of that Act, which also do not appear to be of relevance. Both orders refer to s 327 of the Crimes Act 1900 (NSW) (Crimes Act), which provides for the offence of perjury. Finally, order 27 repeats rote references to various provisions of Commonwealth criminal laws, the Supreme Court Act and the UCPR.

106. These “orders” disclose no specific allegation in respect of any particular person. Insofar as the central allegation is one of perjury, the State defendants did not give evidence in any relevant proceeding so it is difficult to understand how they could have committed perjury. In any event, even putting to one side the uncertainty of the orders, the plaintiff has identified no power to make the referrals sought.

107. I recently held in Preston v Nikolaidis [2022] NSWSC 813 at [31] that there is not a general power of this Court to report or compel the investigation of any kind of alleged criminal conduct. The powers of the Court to refer a matter to the Director of Public Prosecutions or Attorney General, or to direct to Registrar to commence proceedings, are narrow and confined: at [30]–[31].

108. Accordingly, the Amended Summons should be dismissed in respect of these claims for relief under r 13.4(1) of the UCPR because they disclose no reasonable cause of action and are an abuse of the process of the Court.

Category 3: Orders “for the legislation to be changed” (orders 16 and 17)

109. Orders 16 and 17 seek “for the legislation to be changed”. They are entirely without merit and should be dismissed pursuant to rr 13.4(1)(a) and (b) of the UCPR.

110. It is trite law that legislation may be made, or amended, by the Parliament and only by the Parliament (Constitution Act s 5). The Court has no power of “judicial veto over the exercise of legislative power”: Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9 at 197 [37] (Brennan CJ). This is why, in construing a statute, “it is not for the court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose”: Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; [2012] HCA 3 at 14 [28] (French CJ, Hayne, Kiefel and Bell JJ).

Category 4: Orders seeking that orders of the Supreme Court or the Court of Appeal (made in the earlier proceedings) be set aside or quashed (orders 9, 20-22, 24-26, 29-30 and 46, read with paragraph 2(a)-(ii) under “Details of Decisions”).

111. Insofar as the plaintiff seeks, in these proceedings, to challenge decisions made by the Court in the earlier proceedings referred to above, I agree with the two general observations of the State defendants (who did not appear in those proceedings).

112. First, insofar as this relief is sought by way of judicial review, they are beyond jurisdiction. Orders of this Court are not amenable to judicial review. This was explained in Penson v Titan National Pty Ltd [2015] NSWCA 404 at [8], as follows:

“Section 69 of the Supreme Court Act provides for a procedure that replaces the prerogative writs for which the common law provided. Those writs did not lie against a superior court: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union [1953] HCA 60 ; 89 CLR 636. A judge of the Supreme Court has no power to direct an order in the nature of prohibition against another judge of the same Court: Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2008] NSWCA 227 at [36]; Barton v Walker [1979] 2 NSWLR 740. Nor is there power to make an order in the nature of certiorari, as sought by Ms Penson in Order 5 of her application. Section 69 has not altered that position. The orders of judges of the Supreme Court, including of the Court of Appeal, are not amenable to review under s 69.” (emphasis added).

113. In Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2008] NSWCA 227, Basten and Campbell JJA and Handley AJA described this proposition as being “a consequence of the inherent nature of prerogative orders, as being orders whereby a superior court takes steps to keep courts or tribunals of limited jurisdiction operating within proper legal confines and standards”: at [36].

114. Secondly, in considering of the plaintiff’s repeated but formulaic reliance on r 36.16 of the UCPR, I respectfully adopt the remarks of Leeming and Simpson JJA and Emmett AJA in Majak v Rose (No 5) [2017] NSWCA 238 at [12], which is as follows:

[Rule 36.16] does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them. Nor does it make of a court some sort of magic pudding from which unsuccessful litigants may take slice after slice, ever hopeful that the next will be more palatable than the last. The rule has a serious, but limited, purpose which is to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal (or, in the case of this Court, an application for special leave to the High Court). Abuse of the rule is detrimental to the administration of justice in unnecessarily and unfairly (to other litigants) taking up the time of the court. Nor does abuse of the rules facilitate the just, quick and cheap resolution of the issues between parties. On the contrary, unwarranted reliance on r 36.16 is oppressive to the successful party and a drain on the Court’s resources.

115. In the State defendants’ submission, considerations of this type suggest that the Amended Summons, the bulk of which may fairly be characterised as an indiscriminate challenge to past court decisions, made on every conceivable basis, should be considered to be an abuse of process in whole.

116. The State defendants otherwise considered that, to the extent that there is a challenge to orders made in the earlier proceedings, the principal contradictors and the parties best placed to assist the Court are the moving defendants who or which were contradictors or acted in the earlier proceedings.

117. The moving defendants submitted, correctly, that the plaintiff is seeking to revisit issues in the Amended Summons on the basis of some unspecified and unsubstantiated allegations of serious misconduct. The appropriate mechanism to challenge the decisions made by various judicial and other officers of this Court involved in the plaintiff’s substantive proceedings was through the appeal processes provided for in the Supreme Court Act or potentially on further appeal to the High Court. Having been unsuccessful in those appeals, it is an abuse of process to seek to revisit those issues by way of separate proceedings for judicial review.

Category 5: Orders seeking relief in respect of purported decisions said to have been made by the first to fifth defendants (orders 29-30 read with paragraphs 2(jj) and (ll)-(nn) and 3 under “Details of Decisions”).

118. In essence, orders 29 and 30 seek review of purported decisions that are said to be made by the first to fifth defendants.

119. The moving defendants submitted that r 59.10 of the UCPR provides that any proceeding for judicial review of a decision must be commenced within 3 months of the date of the decision. The Court has the power to extend that time. In Regional Express Holdings Limited v Dubbo City Council (No 2) [2013] NSWLEC 113, Biscoe J explained at [7]:

“A judicial review court is concerned with maintenance of the rule of law in the conduct of public authorities, but the rule of law is strengthened by provisions such as r 59.10 requiring the discipline of bringing proceedings within a reasonable time so that the proper business of government and the reasonable interests of third parties are not unjustly prejudiced.”

120. The moving defendants submitted that the plaintiff has not demonstrated a proper basis for allowing an extension of the time to commence these proceedings. The defendants submitted that the Court should consider the following factors under r 59.10(3) of the UCPR:

1. To the extent the plaintiff had an interest in seeking damages for purported medical negligence, she exercised that interest by bringing proceedings in this Court. To the extent the plaintiff has an interest in correcting any error purportedly made by this Court in assessing her claim, she has statutory rights to appeal, which have also been exercised;

2. To allow an extension of time would cause prejudice to the defendants because the SLHD has been the subject of prolonged litigation which agitates the same or similar issues; and

3. There is a public interest in ensuring the finality of litigation.

121. I respectfully agree with the factors in the preceding paragraph. I add that there are no prospects of success for remedies under judicial review for the purported decisions of the first to fifth defendants. It is also highly doubtful whether the purported decisions can be the subject of judicial review and, in any case, any judicial review proceedings would reagitate proceedings from the substantive claim.

122. With respect to paragraphs 2(jj), (ll) and (nn), as aforementioned, the appropriate mechanism to challenge the decisions made by various judicial and other officers of this Court involved in the plaintiff’s substantive proceedings was through the appeal processes provided for in the Supreme Court Act. Having been unsuccessful in those appeals, it is an abuse to seek to revisit those issues by way of separate proceedings for judicial review.

Category 6: An order seeking relief in respect of a decision of the Attorney General not to intervene in the proceedings pursuant to s. 78A of the Judiciary Act 1903 (Cth) be quashed or set aside (orders 29-30 read with paragraphs 2(kk) and 3 under “Details of Decisions”).

123. The plaintiff is seeking relief in respect of a decision of the Attorney General for NSW not to intervene in proceedings that relate to a matter arising under the Constitution or involving its interpretation. Section 78A(1) of the Judiciary Act provides:

“78A Intervention by Attorneys‑General

(1) The Attorney‑General of the Commonwealth may, on behalf of the Commonwealth, and the Attorney‑General of a State may, on behalf of the State, intervene in proceedings before the High Court or any other federal court or any court of a State or Territory, being proceedings that relate to a matter arising under the Constitution or involving its interpretation.”

124. It appears to me that this part of the Amended Summons is to seek judicial review of the Attorney General’s decision not to intervene in proceedings with file number 2020/00153031. No attempt is made to explain the jurisdictional basis for such application or what errors were allegedly made by the Attorney General or their delegate. Again, there is none.

125. The plain text of s 78A(1) of the Judiciary Act is that the Attorney General “may” intervene in proceedings. It is a discretionary power.

126. In my view, the plaintiff has no legally enforceable right to an intervention by the Attorney General. This becomes readily clear when one considers how courts have considered three similar actions involving the Attorney General.

127. The first relates to the power of the Attorney General to commence litigation. In Clyne v Attorney-General (Cth) [No 2] (1984) 2 FCR 515 (Clyne), the Full Court of the Federal Court was considering a purported duty on the Attorney-General of the Commonwealth to consider representations that sought the exercise of the power to decline to proceed further with a prosecution under s 71 of the Judiciary Act. Justices McGregor, Fisher and Neaves said at 524-525:

“[T]he circumstances in which the courts would intervene depended upon the establishment of a legally enforceable right in the applicant. It is the absence from the statute of any such legally enforceable right in the appellant in this case which is decisive”

128. Clyne was relied upon in Holzinger v Attorney-General (Qld) (2020) 5 QR 314; [2020] QCA 165 (Holzinger). That case concerned an application for judicial review of a decision, made by the Attorney General for Queensland, to refuse to make a statutory referral of a petition seeking a pardon to the Court. In a passage concerning whether the decision was of an “administrative character” within the meaning of the Judicial Review Act 1991 (Qld), Sofronoff P, Morrison and Mullins JJA said at 333 [50]:

“A decision by the Attorney-General to present an ex officio indictment or to enter a nolle prosequi or, indeed, to instruct that civil proceedings be commenced, is not a decision of a kind to which the adjective ‘administrative’ easily applies. One reason why that may be so is that, unlike the usual ‘administrative decision’, a decision to commence litigation does not create rights, does not extinguish rights, does not impose liabilities, and does not impose a legal disability. It is a decision to invoke the jurisdiction of a court. The right that is to be vindicated by judicial process, or the liability that is sought to be declared, is a pre-existing right or liability, with immaterial exceptions.” (footnotes omitted, emphasis added).

129. Holzinger was also followed by the Full Court of the Federal Court in Attorney-General (Cth) v Ogawa (2020) 281 FCR 1; [2020] FCAFC 180 at 5 [11] (Allsop CJ, Flick and Griffiths JJ) (Ogawa).

129. In Folbigg v Attorney General of New South Wales (2021) 391 ALR 294; [2021] NSWCA 44, Basten, Leeming and Brereton JJA, relying on Holzinger, stated that “a power conferred on the Attorney-General ‘to commence litigation’ was not amenable to judicial review”: at 302 [32].

130. The Holzinger and Ogawa proceedings raised large questions concerning the reviewability of the Crown prerogative of mercy and steps taken under (broadly) associated statutory schemes. But there is no reason to doubt the correctness of the more general statements of principle extracted above. Indeed, the position in respect of a decision to intervene under s 78A of the Judiciary Act is particularly clear because a decision to intervene under that provision does not even result in the “commencement” of litigation. Rather, it involves the Attorney General appearing, as intervenor, in extant proceedings. It could not be suggested that that decision of that nature could have any effect at all on a person’s rights or liabilities, which fall to be determined by the relevant court in the proceedings in any event.

131. The second is the relator action, whereby the Attorney General grants their fiat to permit a person to bring proceedings in a person’s name. The consistent view is that the Attorney General’s decision in that respect is not reviewable: Gouriet v Union of Post Office Workers [1978] AC 435 at 488 (Lord Wilberforce) (Gouriet); Holzinger at 332 [43] (Sofronoff P, Morrison and Mullins JJA); Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1998] HCA 49 at 261 [35] (Gaudron, Gummow and Kirby JJ). There is no reason to suppose that the position might be different in respect of an intervention under s 78A of the Judiciary Act.

132. The third is the exercise of statutory powers, conferred on the Attorney General, to bring an ex officio indictment. In Barton v The Queen (1980) 147 CLR 75 (Barton), Gibbs A-CJ and Mason J said at 94:

“The provision made by s. 5 [of the Australian Courts Act 1828 (Imp), which conferred power to present an ex officio indictment] is very different from an ordinary administrative discretion conferred by statute. The section is a self-contained provision … imposes no duty on the Attorney-General to consider whether a prosecution shall be instituted… i.e. by information in the name of the Attorney-General or other officer duly appointed for the purpose. The provision does not limit or restrict the Attorney-General in any way in the consideration which he may give to a particular case. And because the language leaves the Attorney-General at large in deciding what course he shall take, it makes his decision immune from judicial review.”

134. The last is the power to decide whether to prosecute. It is well accepted that there is no avenue to review a decision not to prosecute: see Connelly v Director of Public Prosecutions [1964] AC 1254 at 1277 (Edmund Davies J for Lawton and Lyell JJ); Barton at 94-95 (Gibbs A-CJ and Mason J), 110 (Wilson J). In Maxwell v The Queen (1996) 184 CLR 501, Gaudron and Gummow JJ stated at 534:

“It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what. The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.”

135. The above examples illustrate why, by analogy, a decision of the Attorney General not to intervene in constitutional matters is not susceptible to judicial review. The considerations which may bear upon the Attorney General’s decision whether to intervene in a proceeding are similarly broad and may include matters of policy: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42 (Mason J); Gouriet at 477 (Lord Wilberforce). The very nature of the power and its context means that the Attorney General may consider a wide range of high policy considerations, including the interests of their polity (in this case, the State of New South Wales) and the efficient use of limited public resources. These are matters that the Attorney General, as the first law officer, is best placed to consider. If the courts were to intervene by reviewing such decisions, it would undermine the integrity and independence of the judiciary in the same way as if courts interfered with the decision whether or not to prosecute.

136. The Amended Summons does not, and could not, begin to answer the issues identified above. It follows that this part of the Amended Summons should be dismissed pursuant to r 13.4(1)(b) of the UCPR. The fact that legal argument is required to explain why that is so is no bar to summary dismissal: General Steel at 130 (Barwick CJ).

137. This part of the Amended Summons should also be summarily dismissed for the independent reason that, even if review of an Attorney General’s non-intervention decision were available as a matter of principle, the plaintiff does not identify any ground at all upon which the review might be sought in this case. Thus, for that additional reason, it fails to identify any reasonable cause of action. Indeed, noting that no independent grounds appear to be directed to the non-intervention decision, and having regard to what is sought in the balance of the document, the application for judicial review of the non-intervention decision should be understood to be no more than another attempt by the plaintiff to identify an avenue for the re-agitation of the earlier proceedings. For that further reason, this part of the Amended Summons is also liable to be summarily dismissed as an abuse of process under r 13.4(1)(c) of the UCPR.

Category 7: An order seeking relief in respect of a decision said to have been made by Mr Schmatt on 15 October 2019 (orders 29-30 read with paragraphs 2(oo) and 3 under “Details of Decisions”)

138. This part of the Amended Summons is understood to be directed to one or both of two decisions, communicated to the plaintiff by letter from the thirty-fourth defendant dated 15 October 2019. The Commission summarily dismissed complaints made by the plaintiff about the conduct of Fagan J and R A Hulme J pursuant to s 20(1)(h) of the Judicial Officers Act. Before turning to the facts of each complaint, it is necessary to briefly outline the relevant statutory scheme.

Scheme for complaints under the Judicial Officers Act

139. The Commission is constituted as a corporation and exercises the functions conferred or imposed on it under the Judicial Officers Act: ss 5(1)-(2). One of its principal functions relates to complaints against judicial officers: Judicial Officers Act Pt 6.

140. Under s 15(1) of the Judicial Officers Act, any person may complain to the Commission about a matter that concerns or may concern the ability or behaviour of a judicial officer. However, the Commission’s power to deal with such a complaint is limited by s 20 of that Act, which provides:

“20 Summary dismissal of complaints

(1) The Commission shall summarily dismiss the complaint if it is of the opinion that, whether or not it appears to be substantiated—

(a) the complaint is one that it is required not to deal with,

(b) the complaint is frivolous, vexatious or not in good faith,

(c) the subject-matter of the complaint is trivial,

(d) the matter complained about occurred at too remote a time to justify further consideration

(e) in relation to the matter complained about, there is or was available a satisfactory means of redress or of dealing with the complaint or the subject-matter of the complaint,

(f) without limiting paragraph (e), the complaint relates to the exercise of a judicial or other function that is or was subject to adequate appeal or review rights,

(g) the person complained about is no longer a judicial officer, or

(h) having regard to all the circumstances of the case, further consideration of the complaint would be or is unnecessary or unjustifiable.

(2) In deciding whether or not to summarily dismiss a complaint, the Commission may have regard to such matters as it thinks fit.”

141. In addition, s 15(2) of the Judicial Officers Act provides that the Commission “shall not deal with a complaint” other than by summary dismissal unless the complaint, if substantiated, could justify either parliamentary consideration of the removal of the judicial officer from office, or warrant further examination on the ground that it may affect or may have affected the performance of judicial or official duties by the officer.

142. At least in respect of s 20(1)(b)-(h), the Commission is required to exercise “an evaluative judgment”: Hastwell v Health Care Complaints Commission [2021] NSWCA 22 at [14] (Basten JA). The Commission’s decisional freedom in that respect is broad. Its members “can draw on their knowledge and expertise of judicial conduct”: Bruce v Cole (1998) 45 NSWLR 163 at 195 (Spigelman CJ with whom Mason P, Priestley, Sheller and Powell JJA agreed). It may also be observed that ss 20(1)(d)-(f) makes clear that the provision is concerned, inter alia, with questions of finality, which form an important part of the background against which the provisions must be understood and applied: see Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 at 223 [15] (Gummow A-CJ, Hayne, Heydon, Crennan and Kiefel JJ).

143. The Commission’s opinion that further consideration is “unnecessary or unjustifiable” in the circumstances, under s 20(1)(h), may apply in cases where the conduct complained about “is incapable under any circumstances of constituting judicial misconduct or affecting the performance of a judge’s duties”: Bowers v Judicial Commission of New South Wales (No 1) [2021] NSWSC 916 at [57] (N Adams J) (Bowers). The provision requires the making of a judgment as to whether the further consideration of a complaint is justifiable. That is a judgment which may require that consideration be given to the appropriateness a further allocation of resources to considering the complaint, given the potential results of such consideration, and to the purposes of s 20 and the Act more generally.

144. The effect of these provisions was described by N Adams J in Bowers at [48], as follows:

“The decision of the Commission falls to be considered in the context of the Commission’s statutory role. Both ss 15 and 20 use the word ‘shall’, which imposes a mandatory obligation on the Commission once the relevant opinion is formed: s 9(2), Interpretation Act 1987 (NSW). The relevant statutory context means that even if there was any basis for [the] complaint, the Commission could not proceed with it unless it could justify parliamentary consideration of the removal of the judicial officer or warrant further examination on the grounds that it could affect his Honour’s performance of his duties, whether judicial or official.”

145. Finally, it should be emphasised that the plaintiff could only succeed in her review of any decision under s 20 of the Judicial Officers Act if she were to demonstrate that the decision is subject to some judicially reviewable error. The proceedings for judicial review do not involve any review of the merits of the decision of the Commission: Bowers at [42] (N Adams J). As discussed above, it is relevant that the Amended Summons does not identify any grounds of review in respect of the claim against the Commission specifically. The highest that it rises is the provision of a list of many of the recognised grounds of judicial review, not expressed to be directed to any specific relief, in grounds 21-29.

Complaint against R A Hulme J

146. One of the plaintiff’s complaints relates to a hearing before R A Hulme J on 7 December 2018 of Plaintiff Motion 1 and SLHD Motion 1. Taking the complaint at its highest, it appears to be alleged that his Honour “did misconduct” and “[caused] a miscarriage of justice” by:

1. Making orders in accordance with a proposal by the defendants when the plaintiff did not consent. It is understood that her consent had been sought and that an initial version of the orders had stated “by consent”, although that was struck out;

2. Making an order for discovery against the defendants, but not in the terms sought by the plaintiff;

3. Making an order requiring the plaintiff to file and serve an expert report in accordance with r 31.36 of the UCPR by 15 March 2019; and

4. Not giving the plaintiff a fair hearing; in particular, his Honour is alleged to have not looked at the plaintiff’s documents, ignored the plaintiff and “made the orders anyway”.

147. The central complaint appears to relate to the question of a “consent order”. The plaintiff states that, “[a]s a judge, [R A Hulme J] knew that the orders should on be made when the plaintiff did not consent to them and they were not filed and sealed by the court”.

148. Although this Court’s task is not to review the merits of the decision made by the Commission (and still less to review the merits of the decision made by R A Hulme J), I note that this central complaint is patently misconceived. His Honour was not precluded from making orders without the plaintiff’s consent. More generally, complaints (1)-(2) above amount essentially to complaints about the merits of particular orders made by his Honour. The proper avenue for aggrieved parties in those circumstances is by way of an appeal.

149. The letter records that the Commission had reviewed the transcript of the proceedings. After describing what occurred in the hearing and the orders which were made, Mr Schmatt stated:

“In the Commission’s opinion Justice Hulme dealt with you in an objective and judicial manner. As you were self-represented before the court, his Honour gave you such assistance as was appropriate having regard to his over-arching obligation to deal with the matter impartially and judicially.

The Commission is satisfied there was no conduct on the part of his Honour which would amount to judicial misconduct.

Having regard to these findings the Commission is required to dismiss your complaint under section 20(1)(h) of the Judicial Officers Act.”

150. Those conclusions were plainly open to the Commission. I have addressed above the reasons for that, in respect of the complaints about the orders made by his Honour.

151. As to the complaint that his Honour failed to give the plaintiff a fair hearing, that is a matter which the Commission expressly considered and addressed. The plaintiff does not advance any reason why the Commission’s conclusion in that respect could be considered to be legally unreasonable, irrational or otherwise attended by judicially reviewable error: see Bowers at [43]-[47] (N Adams J) The plaintiff was given several opportunities to make submissions in the ordinary way and has statutory rights to appeal.

152. In my view, any challenge to the Commission’s decision in respect of the complaint against R A Hulme J is manifestly hopeless.

Complaint against Fagan J

153. The second complaint relates to a hearing before Fagan J on 14 June 2019 and a judgment given on the same day: Hassan v RPAH. In that matter, his Honour’s orders were of a procedural nature, as follows:

“1. The proceedings are stood over to 26 Jul 2019 at 9.30 am.

2. The plaintiff is directed to file an expert medical report complying with rule 31.36 of the Uniform Civil Procedure Rules no later than 5pm on Friday 19 July 2019.

3. If order 2 is not complied with then on Friday 26 July 2019 the plaintiff will be required to show cause why her statement of claim should not be dismissed.

4. Costs of the hearing of the notices of motion and of the proceedings to date are reserved.”

154. The complaints made by the plaintiff in this respect appear to be about the following:

1. The plaintiff was not given an opportunity to address her court books or other documents;

2. The correctness of the orders made;

3. Specifically, that the plaintiff was not given 5 months to comply with r 31.36 of the UCPR;

4. His Honour’s manner, including a complaint that his Honour shouted at the plaintiff;

5. The conduct of the defendants and their representatives; and

6. General complaints about the way in which the Court had dealt with the proceedings to date (including a reiteration of the complaint concerning R A Hulme J).

155. Two specific aspects of these complaints warrant short explanation. The first relates to the plaintiff’s court book. It appears from the transcript that a court book was filed by the plaintiff that was not before Fagan J. When it emerged that a court book was missing, his Honour asked for a spare copy, which was provided by the defendants. Counsel for the defendants said, of that book, “[t]his one has no marking”, apparently meaning that the defendants had not marked it up (in the sense of highlighting or underlining or similar). The plaintiff appears to complain about that, because she “paid to prepare the court book and mark every page”. The “markings” to which she is referring appear to be page numbers which, as the transcript makes clear, were retained on the court book that was handed up. It is clear from the transcript that his Honour ultimately had all of the court books. In these circumstances, it was open to the Commission to find that there is no merit to this aspect of the complaint.

156. The second is the complaint concerning Fagan J raising his voice. It occurred in the context of the plaintiff seeking to reagitate his Honour’s ruling, which by then had already been the subject of submissions and determination, in respect of the filing of the expert reports. His Honour’s frustration is clear from his judgment which states at [41]:

“[W]ith great obstinacy, the plaintiff has pressed for more time than five weeks. She has asked for three months within which to file a report. That has been refused. This case has been on foot for over a year and has, effectively, made no progress. The defendant has been unable to file a defence and has not been required to do so in the absence of a report under r 31.36. It has been made very clear to the plaintiff on numerous occasions that this report is essential and that the rule must be complied with. She has had plenty of time within which to satisfy the requirement. An extension of another five weeks is a considerable indulgence to her; no more will be allowed.”

157. Again, the Commission’s decision, recorded by the thirty-fourth defendant, recorded that it had considered the transcript and the judgment and had regard to the various complaints made. Again, the Commission was satisfied that the matter was required to be dismissed pursuant to s 20(1)(h) of the Judicial Officers Act. No error in its reasoning process and no other judicially reviewable error has been suggested or exists. In particular, the opinion expressed by the Commission that it was not judicial misconduct for Fagan J to have raised his voice was plainly open to it, in the circumstances described above.

158. My remarks above concerning the complaints against R A Hulme J otherwise apply equally in respect of the complaints made by the plaintiff as to the merits of the orders and any complaint that the plaintiff was not given an opportunity to be heard before Fagan J.

Conclusion with respect to the decisions of the Commission

159. The relief sought in respect of the decisions of the Commission should be understood, having regard to the terms of the complaints and in the context of the Amended Summons as a whole, as an attempt to relitigate procedural matters which were determined adversely to the plaintiff. There is no attempt to identify any judicially reviewable error relating to these decisions. Even giving some allowance to the plaintiff as a self-represented litigant, I am satisfied, on the materials before it, that there is no prospect of any such error being identified. This part of the Amended Summons should be dismissed as an abuse of process and because no reasonable cause of action is identified.

159. Furthermore, the proper defendant in respect of an application for judicial review of the decisions of the Commission is the Commission, not the thirty-fourth defendant who merely communicated that decision: Brown v Rezitis (1970) 127 CLR 157 at 169 (Barwick CJ); Kerr v Commissioner of Police and Crown Employees Appeal Board [1977] 2 NSWLR 721 at 723-725 (Moffitt P); Giddings v Australian Information Commissioner (2017) 156 ALD 601; [2017] FCA 677 at 602-603 [2]-[7] (Tracey J). But nothing turns on that in circumstances where the matter should in any event be summarily dismissed.

Category 8: Orders concerning the provision of reasons for certain decisions (orders 18 and 33-34 and paragraphs 2 and 5 under “Details of Decisions”)

161. Insofar as orders are sought for reasons for decisions made in the earlier proceedings, the State defendants repeat what has already been said about the re-agitation of determined matters, note that reasons have been given for many of the decisions identified, and otherwise consider that this is a matter in respect of which the moving defendants are the principal contradictors.

162. If reasons are sought for the Attorney General’s non-intervention decision, considered above, the relief is misconceived. It is understood that r 59.9 of the UCPR is relied upon. That rule applies “to proceedings for judicial review in which relief is sought in relation to a decision of a public authority”. A decision which is not judicially reviewable plainly cannot be the subject of an order under r 59.9. For the reasons given above, that includes the non-intervention decision. Even if that were not the case, the Court would decline to exercise its discretion to make an order for reasons under r 59.9 in circumstances where the purported proceedings for review are liable to be summarily dismissed on several bases.

163. If reasons are sought for the decisions of the thirty-fourth defendant, no such decisions exist. As explained above, the relevant decisions are those of the Commission. More substantively, reasons have already been provided in the letters from Mr Schmatt. In these circumstances, the Court would not make an order under r 59.9 of the UCPR.

164. It follows that this category of relief should also be summarily dismissed. It discloses no reasonable cause of action and is an abuse of process.

Category 9: Other procedural orders, some of which relate to the present proceedings, some of which relate to the earlier proceedings, and some of which do not clearly identify the proceedings to which they relate (orders 2, 10-15, 23, 31-32, 35-36, 38 and 40-41)

165. For the reasons given above, I would summarily dismiss all the substantive relief sought in the Amended Summons. The remaining two categories relate to procedural orders and costs (categories 9 and 10). I agree with the State defendants that some of the orders sought in category 9 relate to these proceedings. Some relate to the substantive proceedings. And others are unclear as to either of the proceedings. No clarification was given by the plaintiff in her written submissions. The State defendants submit that these orders suggest that the amended summons as a whole is an abuse of process.

166. As to these parts of the Amended Summons seek procedural orders in the present proceedings, I agree with the State defendants that they should be dismissed for two reasons. First, the plaintiff has had an opportunity to seek procedural orders in these proceedings, at directions hearings before the Common Law Registrar and/or by way of a Notice of Motion. Secondly, there is no procedural step which could cure the fundamental defects identified with respect to the substantive relief sought in the Amended Summons.

167. Insofar that they relate to the substantive proceedings, those proceedings have been finally determined by Fagan J in Hassan v SLHD (No 2). The plaintiff has exercised her right to appeal his Honour’s decision to the Court of Appeal. In these circumstances, there is no basis for a Judge of the Common Law Division, to make procedural orders for a matter where final judgment has been given.

168. This category of relief discloses no cause of action and should be summarily dismissed.

Category 10: Orders for costs in this and the earlier proceedings (orders 39, 43 and 44)

169. Insofar as this part of the Amended Summons seek costs orders in these proceedings, there is no reason why costs should not follow the event. As all other relief sought must be summarily dismissed under r 13.4 of the UCPR, there are no reason at all why an order should be made that the defendants pay the plaintiff’s costs.

170. Insofar that this part of the Amended Summons seek costs orders in the earlier proceedings, it is doubtful that I have the power to vary costs orders made in those proceedings, especially orders made in the Court of Appeal: Stanizzo v Fregnan [2022] NSWSC 831 at [44] (Walton J) (Stanizzo). Even if I did have such a power, I see no reason why I should vary the costs orders made by other Judges. If the plaintiff believes there was an error in the costs orders made by Fagan J, the proper forum for such arguments would be the Court of Appeal: Stanizzo at [40] (Walton J).

171. This relief discloses no cause of action and should be summarily dismissed with the rest of the Amended Summons.

Other Matters

172. I note that this matter has been listed for directions before the Registrar. On 6 December 2021, the fourth defendant contacted my Associate to request that the directions listings on 8 December 2021 be vacated until after I enter my judgment. I agreed to this course then and the directions listing was accordingly vacated. As noted above, a similar course was taken when there was a directions listing before the Registrar on 16 February 2022.

173. As I will make orders summarily dismissing the entirety of the proceedings under the Amended Summons, it is appropriate to make an order that any future directions listings be vacated.

Conclusion and Orders

174. The defendants have established that the proceedings brought by the plaintiff under the Amended Summons should be dismissed generally. It is plain that the plaintiff’s case is “so clearly untenable that it cannot possibly succeed”: General Steel at 129-130. I consider it appropriate to make an order dismissing the entirety of the proceedings under r 13.4 of the UCPR.

175. Therefore, it is unnecessary for me to determine the alternative bases advanced in the motions of the defendants to strike out all paragraphs pursuant to r 14.28 of the UCPR or the Court’s inherent jurisdiction.

176. The defendants, other than the thirty-third and thirty-sixth defendants who filed submitting appearances, seek orders that the plaintiff pay their costs in the proceedings. However, I indicated on 1 October 2021 that I would reserve the questions of costs until the disposition of the motions to dismiss.

177. For these reasons, I make the following orders:

1. Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), the Amended Summons is summarily dismissed.

2. Costs are reserved.

3. Any future directions listings in the Amended Summons is vacated.

**********