Sydney Local Health District v Hassan

[2023] NSWSC 541

Supreme Court

New South Wales

Medium Neutral Citation:

Sydney Local Health District v Hassan [2023] NSWSC 541

Hearing dates:

16 May 2023

Date of orders:

16 May 2023

Decision date:

16 May 2023

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1)   The hearing on 16 May 2023 is vacated and the final hearing of the summons is listed on 14 November 2023.

(2)   The Court Book is to be returned to the plaintiff.

(3)   In place of the Court Book:

(a)   The plaintiff is to file and serve a bundle of the documents on which it seeks to rely on or before 21 July 2023; and

(b)   The defendant is to file and serve a bundle of the documents on which she seeks to rely on or before 22 September 2023.

(4)   The plaintiff is to file and serve written submissions not exceeding five pages (including identifying the proceedings which are contended to be vexatious proceedings instituted or conducted by the defendant) on or before 21 July 2023.

(5)   The defendant is to file and serve written submissions not exceeding five pages on or before 22 September 2023.

(6)   The costs of 16 May 2023 are reserved.

(7)   The parties have liberty to apply on two days' notice.

Catchwords:

PROCEDURE – application under Vexatious Proceedings Act 2008 (NSW) – request for adjournment of final hearing – mental health of defendant – legal representation of defendant – whether Court Book appropriate for proceedings – adjournment granted

Legislation Cited:

Vexatious Proceedings Act 2008 (NSW), s 8

Category:

Procedural rulings

Parties:

Sydney Local Health District (Plaintiff)
Ayan Abdi Hassan (Defendant)

Representation:

No appearance (Defendant)

Counsel:
B Bradley (Plaintiff)

Solicitors:
Makinson d’Apice Lawyers (Plaintiff)

File Number(s):

2021/259580

EX TEMPORE JUDGMENT

1. By summons filed on 10 September 2021, the Sydney Local Health District, the plaintiff, seeks orders under the Vexatious Proceedings Act 2008 (NSW) against the defendant, Ms Hassan. The matter has been listed for hearing before me today, 16 May 2023.

2. On 4 August 2022, the registrar made orders for the plaintiff to file a Court Book by 9 May 2023. A Court Book comprising five lever-arch folders and 1864 pages has been provided. It is somewhat difficult to perceive how the vast majority of the documentation in the Court Book is of particular assistance in the present proceedings. Indeed, anyone receiving this Court Book might well feel overwhelmed by the volume of material which may have, at best, only peripheral relevance to the determination of the plaintiff's application.

3. On 12 May 2023, an email from the defendant to the registrar, and copied to the plaintiff’s legal representative, was brought to the attention of my Associate. That email had attached to it a letter from Dr Fatma Lowden, a consultant psychiatrist, dated 4 May 2023, and a letter from a psychologist, Ms Natalie Evans, dated 9 May 2023, both of which concerned the mental health of the defendant.

4. The defendant's email stated:

“Now the courts and the doctors are making me like I am a criminal and vexatious litigant. I gave all the evidence to the court but the court is protecting the doctors and the Department of Health. I went all the way to the High Court to get justice. No-one listened to me. The court failed to provide me with a pro-bono barrister, as legal aid do not take medical negligence. Now I have the barrister who is taking my case. I can't deal with the court any more and I don't want to have a mental breakdown like last year. I am focusing on getting better. My barrister will take over my cases. I humbly request to give him four months as it is five years of filing documents and evidences that he needs to catch up with.”

5. Dr Lowden's letter addressed to, inter alia, the Supreme Court stated that the psychiatrist had treated the defendant "for her PTSD with major depression and anxiety with the combination of medications and psychotherapy since 13 October 2021". The letter continued:

“She continues to suffer from PTSD with major depression and anxiety despite treatment. The main benefit of her treatment has been the reduction and disappearance of suicidal thoughts. She unfortunately still is not fit to represent herself at court proceedings since the process worsens her condition significantly. She has instructed a barrister late last month for her legal representation, which in my opinion she should have done years ago.

I support her request of three months adjournment of the hearing on 16 May 2023 to allow sufficient time to her new barrister to go through all the information regarding her complex cases.”

6. In her letter, Ms Evans noted that she had been working with the defendant psychologically since December 2016 and, in particular, stated that:

“[The defendant] has short recoveries and feels strong enough to attempt to address the significant issues that have caused her ongoing pain and illness. Unfortunately, each time she attempts to have these issues recognised, she becomes significantly overwhelmed and unfortunately her mental and physical health becomes unmanageable. Over the years, for a broad range of reasons, [the defendant] has attempted to represent herself which has caused a great deal of stress and pressure.”

7. Ms Evans also supported a request for an adjournment of three or four months.

8. By later email of 12 May 2023 the defendant specifically requested an adjournment for four months. My Associate contacted the parties by email and requested the name and contact details of the defendant's barrister and an indication from the plaintiff as to whether it opposed the application for an adjournment. No information has been received from the defendant as to the name or contact details of her barrister. There was no appearance on behalf of the defendant when the matter was called for hearing on 16 May 2023.

9. As to the plaintiff's position in relation to the request for an adjournment, the court was informed that -

“Whilst the plaintiff would like the matter to proceed, it is mindful of the reports provided to the court by the defendant. In those circumstances, the plaintiff neither consents nor opposes the application.”

10. It was also noted on the plaintiff's behalf that if the court were minded to grant the adjournment the plaintiff requested to be heard in relation to the time frame for any adjournment.

11. I accept the evidence of Dr Lowden and Ms Evans and find that the applicant is not in a position to be able to represent herself properly today. Furthermore, it does not appear that any legal representative the defendant may have engaged has been instructed to appear today. It is not clear why that may have been the case. Nonetheless, I accept that the five volumes of the Court Book would not be something that could be reviewed and fully analysed in only a day or two. In addition, I take into account that s 8(3) of the Vexatious Proceedings Act provides:

“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.”

12. If the defendant is not able to represent herself at the hearing and has no legal representative because of her mental health conditions, it appears to me that she would not have been afforded a reasonable opportunity to be heard in respect of the application. Furthermore, it appears to me that to conduct a final hearing in the proceedings in the absence of the defendant or a legal representative of the defendant might well cause further harm to the defendant’s mental health. It may also cause her to institute further proceedings, potentially not without some foundation, to have any final orders made against her set aside. Given what appears to be the history of the proceedings in this Court, that would be an outcome not to be encouraged. In these circumstances, I am satisfied that the appropriate course is to adjourn the final hearing of this matter.

13. In relation to the duration of any adjournment, I have raised with counsel for the plaintiff whether most of the material in the present Court Book is actually necessary or useful in the present proceedings. It appears to me to be arguable that a more efficient way to conduct the proceedings is by reference to relevant judgments in the various proceedings which are submitted to be vexatious, rather than relying on the evidence and documentation in those proceedings, which is what appears to be contained, at least in large measure, in the Court Book. The judgments can be relied upon by virtue of s 8(2)(c) of the Vexatious Proceedings Act. If this course is adopted, the volume of material and scope for dispute may well be significantly reduced. It is appropriate, in my view, to give the plaintiff the opportunity to consider this approach.

14. In addition, if it appears that the defendant does not intend to institute any further proceedings in relation to her claims against the plaintiff, and I note that it does not appear that proceedings have been instituted after the judicial review proceedings commenced in June 2021, it might be the case that a vexatious proceedings order should not be made even if it were established that the defendant had previously frequently instituted or conducted vexatious proceedings. Such an approach may be appropriate if it was unlikely there would be any further such conduct. This was also a matter that I raised for the plaintiff's consideration.

15. In all the circumstances, an adjournment of the final hearing of the matter is, in my view, appropriate. After discussion with counsel for the plaintiff, a proposed timetable which would allow the plaintiff time to consider the documentation to be relied upon and allow the defendant four months to consider the documentation that she seeks to rely on and provide submissions is the appropriate course to adopt in all the circumstances.

16. For all of these reasons, the orders of the Court are:

1. The hearing on 16 May 2023 is vacated and the final hearing of the summons is listed on 14 November 2023.

2. The Court Book is to be returned to the plaintiff.

3. In place of the Court Book:

1. The plaintiff is to file and serve a bundle of the documents on which it seeks to rely on or before 21 July 2023; and

2. The defendant is to file and serve a bundle of the documents on which she seeks to rely on or before 22 September 2023.

4. The plaintiff is to file and serve written submissions not exceeding five pages (including identifying the proceedings which are contended to be vexatious proceedings instituted or conducted by the defendant) on or before 21 July 2023.

5. The defendant is to file and serve written submissions not exceeding five pages on or before 22 September 2023.

6. The costs of 16 May 2023 are reserved.

7. The parties have liberty to apply on two days' notice.

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Decision last updated: 21 December 2023