Hassan v Sydney Local Health District (No 4)

[2021] NSWCA 187

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hassan v Sydney Local Health District (No 4) [2021] NSWCA 187

Hearing dates:

On the papers

Date of orders:

27 August 2021

Decision date:

27 August 2021

Before:

Bell P; Basten JA; Leeming JA

Decision:

1.       Notice of motion of 18 June 2021 dismissed with costs.

2.       The Registrar is directed, should the applicant file a further motion or motions seeking, in substance, to challenge in this Court the decision of Fagan J being Hassan v Sydney Local Health District (No 2) [2020] NSWSC 475, the decisions of this Court being [2020] NSWCA 195; [2020] NSWCA 356; [2021] NSWCA 97; [2021] NSWCA 122 and [2021] NSWCA 124 and this decision, or seeking any relief of the kind sought in the notices of motion dealt with in the judgments of this Court, to promptly vacate the return date, notify the parties, and refer the papers to a Judge nominated by the President to determine whether the Court should fix a new return date and notify the parties, or whether Ms Hassan should be invited to show cause in writing why the Court should not summarily dismiss the motion or motions as vexatious and an abuse of process.

Catchwords:

CIVIL PROCEDURE – abuse of process – where the Court may exercise its inherent powers to prevent an abuse of its process – where the Court deemed it appropriate that an order in the nature of that made in Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324 be made

CIVIL PROCEDURE – notice of motion – where applicant filed notice of motion challenging earlier orders by judges of the Court and in part repeating relief that had previously been sought and refused – where the notice of motion was dismissed as an abuse of process or as being either vexatious or oppressive, or as disclosing no arguable basis for the relief sought

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 38, 51(4)

Supreme Court Act 1970 (NSW) s 11(1)

Cases Cited:

Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324

Category:

Procedural rulings

Parties:

Ayan Abdi Hassan (Applicant)
Sydney Local Health District t/as Royal Prince Alfred Hospital (Respondent)

Representation:

Counsel:
In person (self-represented) (Applicant)
B Bradley (Respondent)

Solicitors:
Makinson d’Apice Lawyers (Respondent)

File Number(s):

2020/153031

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law;
Court of Appeal

Citation:

[2020] NSWSC 475;

[2020] NSWCA 195;

[2020] NSWCA 356;

[2021] NSWCA 97;

[2021] NSWCA 122;

[2021] NSWCA 124

Date of Decision:

05 May 2020

Before:

Fagan J;
Gleeson JA;
Bell P; Basten JA; Leeming JA;
Brereton JA

File Number(s):

2018/114499;
2020/153031

Judgment

1. THE COURT: Ms Ayan Abdi Hassan (Ms Hassan) has been an active litigant in this Court over the last 12 months in relation to an appeal she lodged from a decision of Fagan J in the Common Law Division of this Court: see Hassan v Sydney Local Health District (No 2) [2020] NSWSC 475.

2. The following decisions have been given by this Court or members of it in that period, and these reasons assume a familiarity with those judgments:

• Gleeson JA’s review of a decision of the Registrar of the Court of Appeal (the Registrar) on 3 August 2020 refusing to grant leave to issue a number of subpoenas in respect of Ms Hassan’s appeal: Hassan v Sydney Local Health District [2020] NSWCA 195;

• the dismissal of a review of Gleeson JA’s decision: Hassan v Sydney Local Health District (No 2) [2020] NSWCA 356 (see also Hassan v Sydney Local Health District (No 3) [2021] NSWCA 124);

• Brereton JA’s decision of 20 May 2021 which resulted in the orders set out in [3] below: Hassan v Sydney Local Health District [2021] NSWCA 97; and

• the decision of 7 June 2021 dismissing Ms Hassan’s notice of motion of 5 January 2021: Hassan v Sydney Local Health District (No 2) [2021] NSWCA 122.

3. Brereton JA’s decision of 20 May 2021 is itself the subject of an application for review which is to be heard on 31 August 2021. His Honour’s decision dismissed all interlocutory applications brought by Ms Hassan which were before the Court of Appeal, save for claims (1) and (2) of a motion filed on 16 March 2021 seeking to adduce new evidence in the appeal, and a motion filed on 5 January 2021 which was the subject of the Court’s decision of 7 June 2021. By order 2, Brereton JA ordered that unless Ms Hassan had filed and served her submissions in support of the appeal by 21 June 2021, the appeal be dismissed with costs. Ms Hassan did not file her submissions in accordance with those orders and the appeal was dismissed by the Registrar on 22 June 2021.

4. On 18 June 2021, Ms Hassan filed a further notice of motion seeking a raft of orders in relation to and challenging earlier orders by judges of the Court, in part repeating relief that had previously been sought and refused, including the referring of a list of persons associated with the Respondent to the Police and the Commonwealth Director of Public Prosecutions, and seeking the referral of judges of this Court to the Commonwealth Parliament.

5. On 22 June 2021, the Registrar made directions that Ms Hassan file and serve submissions of no more than 10 pages by 6 July 2021, addressing why the motion filed on 18 June 2021 was not an abuse of process, and why an order in the nature of the orders made in Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324 (Teoh) ought not to be made against her. The orders made in Teoh were that a notice of motion of Mrs Teoh be dismissed with costs and that:

“The Registrar is directed, should the applicant file a further motion seeking, in substance, leave to appeal from the judgment of Sheahan J of 31 July 2009 [2009] NSWLEC 121, to promptly vacate the return date, notify the parties, and refer the papers to a Judge nominated by the President to determine, in Chambers, whether the Court should fix a new return date and notify the parties, or whether Mrs Teoh should be invited to show cause in writing why the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process.”

6. The proceedings in Teoh had a long history, commencing with proceedings in the Land and Environment Court of New South Wales. In the Court of Appeal, there were a number of proceedings including applications to review or set aside an application for leave to appeal which had been dismissed, and an application to reopen various judgments of the Court of Appeal. It is desirable to reproduce in some detail, not least for Ms Hassan’s benefit, the reasoning of Handley AJA at [30]-[40], with whom Allsop P and Beazley JA agreed, in support of the making of such orders:

“30   Mrs Teoh has failed three times to persuade this Court that she has arguable grounds for leave to appeal from Sheahan J No 2. She must understand that a fourth application on the same grounds and materials would be vexatious and an abuse of process.

31    The respondents have not sought to have Mrs Teoh declared a vexatious litigant and this Court would not make such a declaration without proper notice to her and only after giving her an opportunity to be heard.

32    The Court however has a duty to conserve its resources and ensure as far as possible that they are available for other litigants. It is therefore entitled to protect itself and its proceedings from abuse by a litigant who may wish to make a fourth application for the same relief.

33    This Court is fully aware of the circumstances in Mrs Teoh's last two applications and we are broadly familiar with the circumstances in Sheahan J No 2 and Court of Appeal No 1. This material, all on the public record, forms the basis for my conclusion that a fourth application by Mrs Teoh based on the same materials is likely to be an abuse of process and vexatious.

34    The Court may exercise inherent powers to prevent abuse of its process ….

…

39    This Court should act of its own motion to prevent potential abuse of its process should Mrs Teoh file a fourth notice of motion seeking, in substance, the same relief. It should do this by directing the Registrar that the return date for any further motion by Mrs Teoh for the same relief is to be promptly vacated to enable a Judge to review the application on the papers to determine whether there is a case for a fourth hearing. If a Judge in Chambers considers that the material filed warrants a fourth hearing the Court will fix a new return date, and notify the parties.

40    If a Judge considers, on the material filed, that a fourth hearing is not warranted, Mrs Teoh will be invited to show cause in writing why the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process.”

7. Notwithstanding the Registrar’s directions referred to at [5] above, Ms Hassan did not file or serve any such submissions by 6 July 2021 (or subsequently) addressing why the notice of motion of 18 June 2021 was not an abuse of process, and why a Teoh order should not be made.

8. In our opinion, other than paragraph 11 of the notice of motion (which is dealt with at [19] below), the notice of motion should be dismissed as an abuse of process as being either vexatious or oppressive, or as disclosing no arguable basis for the relief sought. The motion filed on 18 June 2021 is a document of some 16 paragraphs which vary in their clarity and coherence. Each paragraph will be dealt with separately.

9. By paragraph 1, Ms Hassan seeks an order that “my notice of motion does not go to the chambers, pursuant to the Supreme Court Act 1970 section 11 (2).” This prayer for relief is misconceived. Section 11(1) of the Supreme Court Act 1970 (NSW) abolishes the distinction between court and chambers.

10. By paragraph 2, Ms Hassan seeks an order that “my notice of motion have a hearing, pursuant to UCPR r18.1 to r18.9, without Registrar Jerry Riznyczok touching any prayer of my notice of motion.” No basis for this relief is disclosed and, in any event, the motion is being dealt with by the Court.

11. By paragraph 3, Ms Hassan seeks an order that “all of my notice of motions from 30th of June 2020 to 18th of June 2021 have a hearing together, pursuant to UCPR r18.1 to r18.9, without Registrar Jerry Riznyczok hearing instead of a judge in pursuant to Supreme Court Act 1970 Sections 46(2) and 46(3) as all of my notice of motions were in the chambers.” This prayer for relief overlooks the fact that all of Ms Hassan’s notices of motion have relevantly been dismissed, either by Brereton JA in his decision of 20 May 2021 or by this Court’s decision of 7 June 2021. Moreover, Brereton JA’s decision is the subject of an application for review on 31 August 2021.

12. By paragraph 4, Ms Hassan seeks:

“an order that in pursuant to the CPA ACT 2005 Section 67 ‘Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.’ As there is a case going on in the administrative list in the common law NSW supreme court, all of the judges and registrars who have dealt with my cases need to answer for their bias and obstruction of justice. In the interest of justice, the appeal should be stayed until this has been resolved.”

This prayer for relief overlooks the fact that Ms Hassan’s appeal has been dismissed (see [3] above). Insofar as this application was put on the basis that “all of the judges and registrars who have dealt with my cases need to answer for their bias and obstruction of justice” and that “the appeal should be stayed until this has been resolved”, all applications alleging bias and obstruction of justice had been dismissed prior to the filing of the notice of motion of 18 June 2021. Moreover, no basis was advanced by Ms Hassan either in the notice of motion itself nor in written submissions (which she declined to file) to particularise or substantiate any such allegation.

13. By paragraph 5, Ms Hassan seeks an order that “all of my notice of motions from 30th of June 2020 to 18th of June 2021” be heard and that Brereton JA’s decision of 20 May 2021 be set aside. This aspect of paragraph 5 is covered by what has been said in [11] above. In addition, it is said in paragraph 5 of the notice of motion that “his [H]onour Brereton [JA] was protecting the other three judges”. This is presumably a reference to the carve out by Brereton JA from his orders of the notice of motion of 5 January 2021 which was not before his Honour, but before the current members of the Court. As Brereton JA’s orders recognised, it was not appropriate for him to make orders in respect of a notice of motion that was before other members of the Court. Ms Hassan’s suggestion of “protection” is scandalous and without any foundation.

14. Paragraph 5 of the notice of motion goes on to challenge and seeks to quash the other decisions made in this Court, as well as the decision of Fagan J together with various procedural directions made by the Registrar on the basis that:

“all of the judges and registrar misbehaved, were biased, and obstructed the justice boldly, pursuant to CRIMES ACT 1914 – PART III--OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE – Division 1 Section 31, Division 2 Section 34, Division 3 Sections 35, 36, 39, and Division 4 Sections 42, 43, 44 and the Criminal Code Act 1995 division 6 section 6.2 and pursuant to rules 36.16(3a) and 36.15(1) of the UCPR. Also, pursuant to the Supreme Court Act 1970 sect 69 (3), {4), and (5).”

As the Court said in its decision of 7 June 2021 in respect of similar allegations, they are self-evidently misconceived and vexatious and should be summarily dismissed. They also suffer from the defect noted in the last sentence of [12] above.

15. Paragraph 6 of the notice of motion seeks the referral of a list of persons associated with the Respondent to the Police and the Commonwealth Director of Public Prosecutions “pursuant to the Civil Procedure Act 2005 No 28 Division 3 s 51 (4)”. Apart from the fact that s 51(4) of the Civil Procedure Act 2005 (NSW) is concerned with referred proceedings to an arbitrator under s 38 of that Act, this “relief” was the subject of earlier motions which have been dismissed and would be entirely unwarranted in any event. It is plainly vexatious. Paragraph 14 of the notice of motion is similarly flawed and does not in any event identify who or what Ms Hassan seeks to be referred to the Commonwealth DPP.

16. Paragraph 7 of the notice of motion seeks to vacate directions hearings that have already occurred. This prayer for relief therefore lacks any utility, as does paragraph 16 of the notice of motion.

17. Paragraph 8 of the Notice of Motion seeks an order:

“to quash all the judgement [sic] orders from 13th July 2020 to 7th June 2021 including 23rd of March 2020, 20th of May 2021 and 7th of June 2021 and 10th of June 2021 as they all brought in pursuant Supreme Court Act 1[9]70 NSW 75A instead of pursuant Supreme Court Act 101 that was brought under my notice of motion. This was Actual Bias, misbehaving and obstructing justice by the Registrar and the Judges. CRIMES ACT 1914 – PART 111--OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE – Division 1 Section 31, Division 2 Section 34, Division 3 Sections 35, 36, 39, and Division 4 Sections 42, 43, 44 and the Criminal Code Act 1995 division 6 section 6.2 and pursuant to rules 36.16{3a) and 36.15(1) of the UCPR.”

18. Again, this prayer for relief, to the extent that it is comprehensible, is self-evidently misconceived. Again, baseless allegations of “bias, misbehaving and obstructing justice by the Registrar and the Judges” are put and remain utterly unsubstantiated. The same defect attaches to paragraphs 9, 10, 12 and 13 of the notice of motion which repeat the unsubstantiated allegations of “bias, misbehaving and obstructing justice by the Registrar and the Judges.” The same may be said of paragraph 15 which refers to “misbehaviour and incapacity”.

19. Paragraph 11 of the notice of motion seeks “an order to do my submissions orally on the day of the hearing for both my notice of motions 30th of May 2021 and 18th of June 2021 as I have not received orders signed nor sealed by Registrar Jerry Riznyczok.” The notice of motion of 30 May 2021, filed on 1 June 2021, is listed for hearing on 31 August 2021. No doubt the Court will hear any oral submissions Ms Hassan seeks to make on that occasion. Insofar as Ms Hassan seeks to be heard orally in respect of this notice of motion, that application should be summarily dismissed. It is a matter for this Court to determine how it will deal with applications of the kind brought by Ms Hassan. In this instance, the Court, through the Registrar, directed that Ms Hassan file written submissions in support of her application. This she has failed to do. To the extent that Ms Hassan seeks by paragraph 11 of the notice of motion an oral hearing of her notice of motion of 18 June 2021, no such a direction should be made in circumstances where the applicant has declined to avail herself of the opportunity to rely on written submissions and the motion is patently without merit.

20. The notice of motion of 18 June 2021 should be dismissed with costs.

21. In addition, we are of the view that the following order should be made as was made in Teoh, namely that:

“The Registrar is directed, should the applicant file a further motion or motions seeking, in substance, to challenge in this Court the decision of Fagan J being Hassan v Sydney Local Health District (No 2) [2020] NSWSC 475, the decisions of this Court being [2020] NSWCA 195; [2020] NSWCA 356; [2021] NSWCA 97; [2021] NSWCA 122 and [2021] NSWCA 124 and this decision, or seeking any relief of the kind sought in the notices of motion dealt with in the judgments of this Court, to promptly vacate the return date, notify the parties, and refer the papers to a Judge nominated by the President to determine whether the Court should fix a new return date and notify the parties, or whether Ms Hassan should be invited to show cause in writing why the Court should not summarily dismiss the motion or motions as vexatious and an abuse of process.”

The reasons for this order are similar to those stated in Teoh and which have been referred to above.

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Decision last updated: 27 August 2021