Windsor v Health Care Complaints Commission

[2020] NSWCA 110

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Windsor v Health Care Complaints Commission [2020] NSWCA 110

Hearing dates:

30 April 2020

Decision date:

10 June 2020

Before:

Gleeson JA at [1]
Leeming JA at [143]
McCallum JA at [144]

Decision:

(1)   Appeal dismissed.

 

(2)   Dismiss the notice of motion filed 27 April 2020.

 (3)   Appellant to pay the costs of the first respondent and the second respondent of the proceedings in this Court.

Catchwords:

APPEAL – medical profession – where suspension by Medical Council of New South Wales of registration of medical practitioner – where suspension affirmed on internal review by Medical Council – Health Practitioner Regulation National Law (NSW), s 150, s 150A – where no appeal by medical practitioner to NCAT – Health Practitioner Regulation National Law (NSW), s 159, s 159B – appeal to Court of Appeal challenging suspension by Council – appeal incompetent

 

MEDICAL PROFESSION – protective proceedings – where complaint against medical practitioner by Health Care Complaints Commission – where doctor refused to undergo psychiatric examination as directed by Medical Council of NSW – Health Practitioner Regulation National Law (NSW), s 149E, s 149F – where NCAT cancelled registration of practitioner – Health Practitioner Regulation National Law (NSW), s 149C – where review of Tribunal’s decision limited to questions of law – whether error of law demonstrated

 

ADMINISTRATIVE LAW – bias rule – where Tribunal member ineligible to sit – where fresh Tribunal empanelled – where fresh Tribunal rejected submissions of medical practitioner – whether Tribunal affected by actual or apprehended bias

 

ADMINISTRATIVE LAW – challenge to interlocutory decisions of Tribunal – where decisions on a matter of practice and procedure – leave to appeal required but not sought – Civil and Administrative Tribunal Act (NSW), Sch 5, Pt 6, cl 29(2)(b)

  ADMINISTRATIVE LAW – hearing rule – whether Tribunal failed to afford procedural fairness – whether Tribunal failed to address appellant’s evidence and arguments – whether two-stage hearing process required

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), Pt 6, Sch 5 - cls 29(2)(b), (4)(b), 32, 55, 62
Health Care Complaints Act 1993 (NSW), ss 51, 145B(1), 145B(3), 145C(1), 145E
Health Practitioner Regulation National Law (NSW) 2016, ss 3, 3A, 5, 55, 139, 144, 145, 145A, 145E, 145F, 149A, 149B, 149C, 150, 150A, 150D, 159, 159B, 165J, 165M, cl 11(1), Sch 5D
Judiciary Act 1903 (Cth), s 78B
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), rr 6.19, 42.1, 51.1, 51.18

Cases Cited:

Adam v P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2
Bull v Lee (No 2) [2009] NSWCA 362
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Carver v Law Society of New South Wales (1997) 43 NSWLR 71
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 94 ALJR 140
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Giniotis v Farrugia (NSWCA, Kirby P, Glass JA and Samuels JA, 19 August 1985, unreported; BC8500603)
Health Care Complaints Commission v Do [2014] NSWCA 307
Health Care Complaints Commission v Achurch [2019] NSWCATOD 20
Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82
Health Care Complaints Commission v Simpson [2018] NSWCATOD 49
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
King v Health Care Complaints Commission [2011] NSWCA 353
Kirby v Dental Council of NSW [2020] NSWCA 91
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State of New South Wales v Mulcahy [2006] NSWCA 303
Taikato v R (1996) 186 CLR 454
Windsor v Health Care Complaints Commission (No 1) [2020] NSWCA 16
Windsor v Health Care Complaints Commission (No 2) [2020] NSWCA 18
Wollongong City Council v Papadopoulos [2019] NSWCA 178

Category:

Principal judgment

Parties:

Gina Windsor (Appellant)
Health Care Complaints Commission (First respondent)
Medical Council of New South Wales (Second respondent)
NSW Civil and Administrative Tribunal (Third respondent)

Representation:

Counsel:
Appellant (no appearance)
A Britt (First Respondent)
A Horvath / K Lindeman (Second respondent)

  Solicitors:
B Chisholm, Health Care Complaints Commission (First respondent)
I Martin, Health Professional Councils’ Authority (Second respondent)
K Smith, Crown Solicitor for New South Wales (Submitting appearance) (Third respondent)

File Number(s):

2019/335419

 Decision under appeal 

Court or tribunal:

New South Wales Civil and Administrative Tribunal

Jurisdiction:

Civil

Citation:

[2019] NSWCATOD 149

Date of Decision:

1 October 2019

Before:

Cole DCJ, Dr M Diamond, Dr C Newberry and J Houen

HEADNOTE

[This headnote is not to be read as part of the Judgment]

The appellant Dr Gina Windsor is a medical practitioner. On 23 September 2016, the second respondent – the Medical Council of New South Wales (the Council) – suspended Dr Windsor’s registration following her refusal to undergo a psychiatric examination that had been directed by the Council after an anonymous complaint made about her practice. On 21 October 2016, an internal review of Dr Windsor’s suspension was affirmed by the Council.

The first respondent – the Health Care Complaints Commission (the Commission) – subsequently lodged a complaint about Dr Windsor with the Occupational Division of the New South Wales Civil and Administrative Tribunal (the Tribunal). On 1 October 2019, the Tribunal cancelled Dr Windsor’s registration as a general practitioner on the bases that she was not competent to practise and was unsuitable to hold registration as a general practitioner.

Dr Windsor appealed against the Tribunal’s decision to the Court of Appeal. Her appeal was limited to questions of law having not sought leave of the Court to raise other matters. Dr Windsor also purported to appeal against the Council’s decision to suspend her registration. The principal issues before the Court were:

whether the Tribunal’s decision involved a want of procedural fairness because it was affected by actual or apprehended bias;

whether the Council erred by suspending Dr Windsor’s registration on 23 September 2016;

whether the Tribunal erred when exercising its discretion with respect to certain interlocutory decisions; and

whether the Tribunal’s decision involved errors of law, including an assertion that the Tribunal had failed to consider a Constitutional matter.

Held, rejecting the appeal (per Gleeson JA; Leeming and McCallum JJA agreeing):

As to issue (i):

The Tribunal’s decision did not involve actual or apprehended bias. First, Dr Windsor failed to identify anything that might lead the Tribunal to decide the matter other than on its legal or factual merits. Secondly, while the initial constitution of the Tribunal included Dr Brian Morton who was ineligible to sit because he was a member of the Council, this defect was acknowledged by the Tribunal and the Tribunal was reconstituted: [57] and [58]-[59].

CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 94 ALJR 140;

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577;

Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20

Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427;

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98; and

Carver v Law Society of New South Wales (1997) 43 NSWLR 71 referred to.

As to issue (ii):

Dr Windsor’s purported appeal against the Council’s decision to suspend her registration was incompetent. She had not taken any of the avenues of appeal available under the Health Practitioner Regulation National Law and/or the Supreme Court Act 1970 (NSW). Moreover, there was no practical utility in challenging the Council’s suspension because the Tribunal’s subsequent decision to cancel her registration operated in place of it: [61]-[63] and [64].

Kirby v Dental Council of NSW [2020] NSWCA 91 applied.

As to issue (iii):

Leave is required to challenge an interlocutory decision and leave was not sought by Dr Windsor. Moreover, appellate intervention in a discretionary interlocutory decision will be warranted only upon House v The King principles; and where those decisions involve matters of practice and procedure the Court should not reverse the Tribunal’s decision unless convinced that it is plainly erroneous. The Tribunal’s refusal to allow Dr Windsor’s husband to appear on her behalf, its refusal to allow Dr Windsor to issue summonses and its failure to summarily dismiss the complaint were not shown to be affected by error in the House v The King sense: [74]-[76].

House v The King (1936) 55 CLR 499;

Micallef v ICI Operations Australia Pty Ltd [2001] NSWCA; and

Adam v P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 applied.

As to issue (iv):

To the extent that Dr Windsor identified a question of law, no error was demonstrated with respect to the Tribunal’s decision. Notably, it was open for the Tribunal to find that Dr Windsor was unsuitable for registration by reference to the underlying conduct that supported the separate finding that she was not competent to practise. The notice given by Dr Windsor under s 78B of the Judiciary Act 1903 (Cth) did not identify a question of law and did not raise any issue under the Constitution. To the extent that they were relevant, the balance of Dr Windsor’s grounds of appeal asserting a want of procedural fairness were not made out: [116]-[117], [134] and [81], [85]-[86], [89], [93], [95], [98]-[99], [102], [106]-[107].

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247;

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321;

Taikato v R (1996) 186 CLR 454;

Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177; and

Health Care Complaints Commission v Do [2014] NSWCA 307 considered.

Judgment

1. GLEESON JA: The appellant Dr Gina Windsor is a medical practitioner. On 23 September 2016, following her refusal to undergo psychiatric examination as directed by the second respondent, the Medical Council of New South Wales (the Council), the Council by its duly appointed delegates suspended her registration pursuant to s 150(1)(a) of the (NSW) Health Practitioner Regulation National Law (“the National Law”). On 21 October 2016, following a review under s 150A of the National Law, the Council by its delegates affirmed the suspension.

2. On 1 October 2019, following a complaint lodged by the first respondent, the Heath Care Complaints Commission (the Commission), against Dr Windsor, the Occupational Division of the New South Wales Civil and Administrative Tribunal (the Tribunal), cancelled Dr Windsor’s registration as a general practitioner pursuant to s 149C(1) of the National Law on the grounds that Dr Windsor is not currently competent to practise as a general practitioner and is presently unsuitable to hold registration as a general practitioner: Health Care Complaints Commission v Windsor [2019] NSWCATOD 149.

3. Dr Windsor has appealed against the Tribunal’s decision (to cancel her registration) and purported to appeal against the Council’s decision (to suspend her registration). Her statutory right of appeal against the Tribunal’s decision is limited to any question of law, or with leave of the Court, on any other grounds: Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), Sch 5, cl 29(2)(b) and cl 29(4)(b). Dr Windsor has not sought leave to extend the appeal to “any other grounds” and accordingly, her appeal is to be taken as limited to any question of law. To the extent that the appeal challenged certain interlocutory decisions of the Tribunal, leave to appeal is required: NCAT Act, Sch 5, Pt 6, cl 29(6)(a). Dr Windsor has not sought leave to appeal.

4. The essential contention in Dr Windsor’s written argument is that the Commission and the Council did not have an arguable case based on provable and undisputed facts and that there should be summary judgment in Dr Windsor’s favour setting aside the Tribunal’s decision.

5. For the reasons that follow, Dr Windsor’s appeal against the Tribunal’s decision (to cancel her registration) should be dismissed, and her appeal against the Council’s decision (to suspend her registration) should be dismissed as incompetent.

The statutory scheme

6. An understanding of the circumstances giving rise to the suspension by the Council and the cancellation by the Tribunal is assisted by an outline of the relevant legislative provisions.

7. The National Law establishes a registration and accreditation scheme. As Meagher JA explained in HealthCareComplaintsCommissionv Do[2014] NSWCA 307 at [34]:

That scheme, by Div 3 of Pt 8, includes provisions for the making of complaints about registered health practitioners and the determination of those complaints, including in relation to serious complaints, by the Tribunal. The objectives of that scheme, as described in s 3(2), include to "provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered" and to "facilitate access to services provided by health practitioners in accordance with the public interest". The provisions in Pt 8 concerning the making and dealing with of complaints are provisions substituted in the National Law by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW). Section 3A of the Law provides that in the exercise of those functions "the protection of the health and safety of the public must be the paramount consideration". Section 4, which applies to the National Law as in force in New South Wales, also requires that an entity having functions under it "is to exercise its functions having regard to the objectives and guiding principles" set out in s 3.

8. In Sub-division 1 (“Making complaints [NSW]”) of Div 3 (“Complaints [NSW]”) of Pt 8 in the National Law, s 144 provides that the following complaints may be made against a registered health practitioner:

144 Grounds for complaint about registered health practitioner [NSW]

The following complaints may be made about a registered health practitioner –

(a) Criminal conviction or criminal finding

A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence.

(b) Unsatisfactory professional conduct or professional misconduct

A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.

(c) Lack of competence

A complaint the practitioner is not competent to practise the practitioner’s profession.

(d) Impairment

A complaint the practitioner has an impairment.

(e) Suitable person

A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner’s profession.

9. As to the meaning and scope of the terms “competence”, “impairment” and “suitable” in the National Law, reference should be made to the following provisions:

• in Div 1 (“Preliminary NSW”) of Pt 8 ("Health, performance and conduct") of the National Law, s 139 provides:

139 Competence to practise health profession [NSW]

A person is competent to practise a health profession only if the person –

(a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and

(b) has sufficient communication skills for the practice of the profession, including an adequate command of the English language.

• “Impairment” is defined in s 5 as follows:

5 Definitions

…

impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect –

(a) for a registered health practitioner or an applicant for registration in a health profession, the person’s capacity to practise the profession; or

…

• in Div 1 (“General registration”) of Pt 7 (“Registration of health practitioners”) of the National Law, s 55 relevantly provides:

55 Unsuitability to hold general registration

(1)   A National Board may decide an individual is not a suitable person to hold general registration in a health profession if—

(a)   in the Board’s opinion, the individual has an impairment that would detrimentally affect the individual’s capacity to practise the profession to such an extent that it would or may place the safety of the public at risk; or

(b)   having regard to the individual’s criminal history to the extent that is relevant to the individual’s practice of the profession, the individual is not, in the Board’s opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or

…

(d)   in the Board’s opinion, the individual’s competency in speaking or otherwise communicating in English is not sufficient for the individual to practise the profession; or

…

(h)   in the Board’s opinion, the individual is for any other reason –

(i)   not a fit and proper person for general registration in the profession; or

(ii)   unable to practise the profession competently and safely.

…

10. Sub-division 2 ("How complaints are to be dealt with [NSW]”) of Div 3 of Pt 8 in the National Law, provides that: all complaints are to be dealt with expeditiously (s 145); the Council and the Commission must consult before any action is taken on a complaint (s 145A); the courses of action available to a Council in respect of a complaint include referring the health practitioner for a health assessment – in which case the matter ceases to be a complaint for the purposes of the National Law and the Health Care Complaints Act 1993 (NSW) (HCC Act) (s 145B(1)(f)(i) and (3)); and the Commission may, as occurred in this case, refer a complaint about a registered health practitioner to the relevant Council responsible for the registration of the practitioner.

11. In dealing with a complaint, the Council may require a registered health practitioner to undergo examination by a direction given under s 145E:

145E   Council may require health practitioner or student to undergo examination [NSW]

(1)   A Council may, by written notice given to a registered health practitioner or student against whom a complaint has been made, direct the practitioner or student to undergo an examination by a specified registered health practitioner at a specified reasonable time and place.

(2)   A registered health practitioner or student must not be directed to undergo an examination under subsection (1) unless it is reasonable to require the examination, given the nature of the complaint against the practitioner or student.

(3)   The fee charged by the specified registered health practitioner for the examination is at the expense of the Council.

12. Section 145F deals with the circumstance where a registered health practitioner, without reasonable excuse, fails to comply with a direction by a Council under s 145E to undergo an examination:

145F   Result of failure to attend counselling or examination [NSW]

A failure by a registered health practitioner or student, without reasonable excuse, to comply with a direction under section 145B to attend counselling or under section 145E to undergo an examination is, for the purposes of this Law and any inquiry or appeal under this Law, evidence that the practitioner or student –

(a)   for a registered health practitioner, does not have sufficient physical or mental capacity to practise the health profession in which the practitioner is registered; or

(b)   for a student, does not have sufficient physical or mental capacity to undertake clinical training in the health profession in which the student is registered.

13. In Sub-division 7 ("Powers of a Council for protection of public [NSW]") of Div 3 of Pt 8 in the National Law, s 150 relevantly provides that the Council may suspend a registered health practitioner’s registration in the following circumstances:

150   Suspension or conditions of registration to protect public [NSW]

(1)   A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest –

(a)   by order suspend a registered health practitioner's or student's registration; or

...

(2)   A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens –

(a)   the complaint about the practitioner or student is disposed of;

(b)   the suspension is ended by the Council.

…

(4)   A Council for a health profession may take action under this section –

(a)   whether or not a complaint has been made or referred to the Council about the practitioner or student; and

(b)   whether or not proceedings In respect of a complaint about the practitioner or student are before a Committee or the Tribunal.

…

(6)   A Council must give written notice of action taken under this section to the registered health practitioner or student concerned.

14. In Kirby v Dental Council of NSW [2020] NSWCA 91, Brereton JA explained at [12] and [15] the nature of the Council’s task under a s 150 hearing:

[12] Exercise of the power under s 150(1) to suspend or impose conditions necessarily requires that the Council undertake an evaluation of circumstances concerning a practitioner that come to its notice. Although a complaint may be the means by which relevant circumstances that require consideration of action under s 150 may come to a Council's notice, s 150(4) makes clear that a complaint is not necessary to enable the Council to act; in other words, it may act of its own motion.

…

[15] In the context of a provision headed "Suspension or conditions of registration to protect public", and the objective and guiding principle stated in s 3A, the touchstone for the exercise of the Council’s power under s 150(1) to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons, or that the action is otherwise in the public interest. If so satisfied – regardless of how the matter comes to its attention – it must act. The power is conferred purely for the protection of the public, and thus the Council’s sole concern is what if any action is required for the protection of the health and safety of any relevant persons and/or the public interest. This is not a professional disciplinary power, but purely protective. Although disciplinary proceedings may flow from s 150 action (as a result of the referral to the HCCC under s 150D), they are dealt with separately, under other provisions of the National Law which provide for dealing with complaints. As NCAT in its decision rightly observed, the role of a Council in undertaking a s 150 inquiry is to protect the public, and in a case such as the present, where serious allegations have been made which, if true, could lead to suspension or cancellation of the practitioner's registration but the evidence is incomplete and further investigation is needed, the issue for the Council is not whether the allegations are proved, but whether the evidence establishes a risk to the public requiring suspension, or imposition of a condition, for protection of the public.

15. Where the Council takes action under s 150 it must – except in the case of impairment – refer the matter to the Commission for investigation. Section 150D relevantly provides:

150D Referral of matter to Commission [NSW]

(1) A Council must, as soon as practicable but no later than 7 days after taking action under section 150, refer the matter to the Commission for investigation.

…

(3)   The matter must be dealt with by the Commission as a complaint made to the Commission against the registered health practitioner or student concerned.

(4)   The Commission must investigate the complaint or cause it to be investigated and, as soon as practicable after it has completed its investigation and if it considers it appropriate to do so, refer the complaint to the Tribunal or a Committee for the health profession in which the health practitioner or student is registered.

Note. See section 145D which provides that both Council and the Commission have a duty to refer a complaint to the Tribunal if, at any time, either of them is of the opinion that the complaint, if substantiated, would provide grounds for the suspension or cancellation of the registered health practitioner’s or student’s registration.

…

(5) This section does not apply if a Council takes action against a registered health practitioner or student under section 150 –

(a)   because, in the Council’s opinion, the practitioner or student has an impairment; or

(b) that is action of a kind referred to in section 150(5).

16. Under s 150(2), a suspension imposed under s 150(1) continues until “the complaint … has been disposed of” or the relevant Council ends the suspension. As Brereton JA said in Kirby v Dental Council of NSW at [14]:

[14] Thus (putting to one side cases of impairment), if the complaint is dismissed, whether before or after the institution of disciplinary proceedings, any suspension or condition will lapse; if proceedings in the Tribunal or a Professional Standards Committee result in disciplinary action, that action will thereafter operate in place of any suspension or conditions imposed by the Council under s 150. The s 150 action is, therefore, essentially interlocutory in nature, pending the outcome of the HCCC investigation under s 150D and any ensuing disciplinary proceedings.

17. A practitioner may apply to the Council under s 150A(1) for a review of a decision of the Council under s 150, and unless the Council considers that the application for review is frivolous or vexatious, it must reconsider its decision and, in doing so, consider any new material or evidence submitted by the practitioner that the Council reasonably considers to be relevant. Following any reconsideration, the Council may affirm or vary its original decision, or set it aside and take any action that the Council has power to take under s 150.

18. A practitioner also has rights of appeal to the Tribunal against a suspension by the Council. Sub-division 2 (“Appeals against actions by Council [NSW]”) of Div 6 (“Appeals to Tribunal [NSW]”) of Pt 8 in the National Law relevantly provides in ss 159 and 159B:

159   Right of appeal [NSW]

(1)   A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession –

…

(a)   against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension;

159B   Appeals on point of law [NSW]

(1) A registered health practitioner or student who is the subject of action taken by the Council for the health profession under section 150, 150A or 150C may appeal, with respect to a point of law, to the Tribunal.

Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013.

(2) Subsection (1) does not limit a right of appeal under section 159.

(3)   The Council must not make a decision that is inconsistent with the Tribunal’s decision with respect to a point of law under this section.

(4) A registered health practitioner or student may not make an application to the Supreme Court for judicial review of action taken by a Council under section 150, 150A or 150C, being an application alleging any error of law, until an appeal under this section in respect of the point of law concerned has been made and disposed of.

19. Sub-division 6 (“Disciplinary powers of Tribunals [NSW]”) of Div 3 of Pt 8 in the National Law, deals with complaints made against a practitioner by the Commission. Section 149C provides that the Tribunal may suspend or cancel the practitioner’s registration if the Tribunal is satisfied of any one of four conditions specified in sub-sec (1):

149C   Tribunal may suspend or cancel registration in certain cases [NSW]

(1)   The Tribunal may suspend a registered health practitioner’s registration for a specified period or cancel the registered health practitioner’s registration if the Tribunal is satisfied –

(a)   the practitioner is not competent to practise the practitioner’s profession; or

(b)   the practitioner is guilty of professional misconduct; or

(c)   the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner’s profession; or

(d)   the practitioner is not a suitable person for registration in the practitioner’s profession.

…

20. In exercising its disciplinary powers to suspend or cancel a practitioner’s registration under s 149C(1) of the National law, the Tribunal must give proper consideration to the full scope of the objective of public protection, of maintaining the standards of the profession, and of deterrence. As Meagher JA said in HealthCareComplaintsCommissionv Doat [35]:

The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.

Background and procedural history

21. The factual circumstances giving rise to the proceedings in the Tribunal are described in some detail in the Tribunal’s reasons at [2]-[36]. The following summary, taken from the Tribunal’s reasons, is sufficient to provide the context for this appeal.

22. Dr Windsor achieved full registration as a general practitioner in New South Wales on 8 December 1999. By 2015, at least part of her practice involved visiting nursing homes.

23. On 4 April 2016, the Commission received an anonymous complaint in writing about Dr Windsor which made the following allegations:

�   Dr Windsor visits nursing homes until the early hours of the morning and then practises at a medical practice during the day.

�   Dr Windsor does not understand her own safety or that of her patients.

�   Dr Windsor has been seen wearing the same clothes for a week.

�   Dr Windsor has been sleeping in her car or in nursing home she visits.

�   Dr Windsor eats dinner at the homes she visits.

�   Dr Windsor sometimes sees nursing home residents late at night when they are asleep.

�   Dr Windsor interferes in her clients’ lives and also in the management of the nursing home.

�   Dr Windsor “influences her clients so that she can get more clients to provide her medical service too” [sic].

�   Dr Windsor issues prescriptions to her clients without proper consultations.

�   Dr Windsor abuses the prescription of medication to her clients.

24. The Commission informed Dr Windsor of the complaint and Dr Windsor responded to the complaint on 23 May 2016. Following consultation with the Council, the complaint was referred to the Council: National Law, s 145A.

25. The Council requested Dr Windsor to attend a health interview with a panel of two psychiatrists, Dr Friend and Dr Arnold, on 6 September 2016. Dr Windsor attended before the panel accompanied by her husband, Mr Neil Windsor, who stated that he was the practice manager and also described himself as Dr Neil Windsor. The panel’s report of the health interview records that Mr Windsor answered questions on behalf of Dr Windsor, he spoke over her and refused to allow her to speak and he terminated the interview when Dr Windsor indicated that she wished to proceed. The Panel’s report included the following:

Dr Windsor attended punctually and was accompanied by her husband Mr Windsor, who advised that he was her practice manager. Dr Windsor was unable to participate in the interview as her husband answered questions on her behalf, spoke over her and refused to allow her to speak. He terminated the interview, advised his wife that she must not participate, and struck her on the shoulder in order to make her stand up and leave the interview. Little information could be gathered about her practice or health.

The information that could be gathered is as follows:

• �   Mr Windsor wrote the response to the notification.

�   Dr Windsor approved the response.

�   Dr Windsor denied that she has any health problems.

�   Mr Windsor believes that there is a plot against him, his wife and two children (aged [xx] and [xx]) and that the decision of the HCCC to convene this Health Interview is part of a “bigger issue”. He believes that he is a target because of a web page he has written about “Atlantian Genocide”, a discovery he recently made. He told the Interviewers that people were after him and his family and that they were in danger.

�   Mr Windsor provided the Council with a copy of his web page flyer.

�   Mr Windsor believes that his phones, the Council’s phones and the interview room were all bugged and that the people who are after them are dangerous.

�   Mr Windsor said that they had been persecuted for four years.

�   Dr Windsor agreed that she thought her phone was bugged.

Observations during the Interview

Dr Windsor was very quiet during the interview, and when she spoke her husband repeatedly told her not to say anything, and he terminated the interview at a time when Dr Windsor told the interviewers that she wished to proceed. Mr Windsor was belligerent, paranoid and angry. He raised his voice and seemed preoccupied by the persecutory and somewhat bizarre beliefs outlined above, which appeared to be of a delusional nature. Mr Windsor’s thought form appeared disjointed and was difficult to follow at times. Mr Windsor struck his wife on the shoulder and demanded that she leave with him. The interview was then terminated.

ISSUES ARISING:

�   The interview could not be conducted because of Mr Windsor’s anger, hostility and paranoia.

�   No information could be gathered about Dr Windsor other than her shared belief that their phones are bugged and they are under surveillance.

�   Mr Windsor is the practice manager and this could place the public in danger given his aggression, overt hostility and paranoia.

�   Dr Windsor appears to be unduly influenced by her husband and this could place the public in danger if she acts on delusional beliefs, particularly as they seem to share beliefs that might be delusional.

�   Dr Windsor does not appear to be able to cooperate with the Council or its processes.

�   Dr Windsor does not seem to appreciate her professional responsibilities regarding making an appropriate response to a complaint and cooperating with regulatory authorities.

�   If Mr Windsor is the practice manager, then Dr Windsor has a responsibility to ensure the public are protected and the Interviewers were not satisfied that she could ensure the public were protected.

26. Under the heading “Conclusion”, the Panel expressed the following concerns and recommendation:

CONCLUSION

The Interviewers held the following concerns:

1.   That Dr Windsor suffers from a mental health disorder, in that she seemed to share the delusional beliefs of her husband.

2.   That Dr Windsor might place the public in danger by allowing her husband to manage her practice, noting his behaviour and mental state during the interview.

3.   That Dr Windsor has not acted professionally by refusing to cooperate with the interview process.

4.   That Dr Windsor might herself be at risk of harm, noting her husband physically assaulted her during the Interview.

5.   That Dr Windsor might engage in behaviour at her husband's behest that might not be in the public interest.

6.   That the issues raised in the notification have not been adequately addressed or answered.

RECOMMENDATION TO THE COUNCIL:

The Interviewers recommend that the Council take further urgent action in order to ensure that the public are protected as Dr Windsor might suffer from a health disorder that could adversely affect her capacity to practise medicine.

27. In a letter to the Council dated 16 September 2016, Dr Windsor objected to the health interview before the panel, asserting, among others, that:

• the Council’s request to attend the interview was misleading;

• the Council’s actions were not based on a just or reasonable cause, let alone prima facie evidence;

• the allegations in the anonymous complaint which were denied, were reasonably attributed to the Commission’s initial legal overreach, given her husband’s political activities;

• the Council had no authority to coerce her to undergo an assessment for an “invented mental impairment”; and

• she subscribed to a doctrine called “Karmic Retribution”, which “neither discriminates nor favours, while becoming effective immediately during life, in addition to overruling any and all acquired and/or contractual indemnities”.

28. On 12 September 2016 the Council directed Dr Windsor to attend an examination by a psychiatrist, Dr Samuels, on 16 September 2016 to obtain an independent assessment of her health. Dr Windsor failed to attend that examination.

29. In a report dated 16 September 2016, based on information given to him, Dr Samuels expressed the opinion:

[Mr Windsor’s] behaviour in the interview conducted by Dr Arnold and Dr Friend raised the possibility that Dr Windsor had become affected by her husband’s mental illness or that he is exerting a degree of control over her that is placing her at risk or impacting upon her ability to practise as a medical practitioner.

… until there is an opportunity to properly assess her in the absence of her husband in order to ascertain exactly what is going on, she probably should not be engaged in the practise of medicine.

30. Following receipt of Dr Samuel’s report, the Council convened a hearing on 23 September 2016 under s 150 of the National Law to consider whether it was appropriate, for the protection of the health and safety of any person, or otherwise in the public interest, to either suspend Dr Windsor or impose conditions on her registration. Dr Windsor provided the Council with written submissions but did not attend the hearing. Dr Samuels provided the Council with a further report dated 22 September 2016, in which he said:

My opinion remains unchanged and I continue to feel that Dr Windsor should not engage in the practise of medicine until she has been assessed by an independent psychiatrist and not in the presence of her husband.

31. The Council proceeded with the s 150 hearing in the absence of Dr Windsor and after considering Dr Windsor’s further written submissions received on the evening before and on the day of hearing, decided to suspend her registration as a medical practitioner from 5 pm on 23 September 2016. In its reasons given on 7 October 2016, the Council by its delegates concluded:

The delegates are of the opinion that given the immediacy and severity of the potential risks to public safety, and the public interest issues that this risk potentially raises given the vulnerable population she treats, there are no conditions that could reasonably be imposed to mitigate the risks at this time.

Until such time as further information is available about Dr Windsor’s health and the potential risks to public safety and for the reasons provided, the delegates are of the view that suspension of Dr Windsor’s registration is required for the protection of the public and otherwise in the public interest.

32. On 5 October 2016, Dr Windsor applied to the Council, pursuant to s 150A of the National Law, to review the decision to suspend her registration. The Council by its delegates determined on 21 October 2016 that it was not satisfied that there had been a change in Dr Windsor’s circumstances that justified variation or setting aside the original decision. Pursuant to s 150A(3) of the National Law the Council affirmed the suspension.

33. Also on 5 October 2016, the Council referred the matter to the Commission for investigation, as it was required to do so pursuant to s 150D of the National Law. An investigation by the Commission proceeded. Dr Samuels provided a further report dated 19 July 2017.

34. On 11 May 2018, the Commission filed a complaint and application in the Tribunal. The complaint was amended on 5 June 2018. The amended complaint set out three complaints against Dr Windsor as follows:

1. Dr Windsor has an impairment within the meaning of s 5 of the National Law, being a physical or mental impairment, disability, condition or disorder that detrimentally affects or is likely to detrimentally affect the practitioner’s capacity to practise the profession of medicine;

2. Dr Windsor is not competent to practise medicine within the meaning of s 139(a) of the National Law;

3. Dr Windsor is not otherwise a suitable person to hold registration as a medical practitioner.

The particulars of each of the three complaints are set out in the Schedule to this judgment.

35. The amended complaint was fixed for hearing before the Tribunal on 1 February 2019; however Dr Windsor did not appear. Given some doubt as to whether Dr Windsor had received notice of the hearing, the matter was adjourned to 1 March 2019. Again, Dr Windsor did not appear; however Mr Windsor appeared, although no leave was granted to him to represent Dr Windsor. The hearing proceeded and the Tribunal reserved its decision. On 20 March 2019, Deputy President Judge Cole convened a directions hearing and informed the parties that the Tribunal had not been properly constituted on 1 March 2019 so a new Tribunal would be empanelled. That occurred and Dr Windsor was notified of the new hearing date which was fixed for 18 June 2019.

36. On 7 April 2019, Dr Windsor sought to file summonses for production of documents addressed to the Council, Dr Samuels, Dr Arnold and Dr Friend, Hornsby Hospital, the Commission, and the Tribunal. At the hearing of that application on 8 May 2019, Mr Windsor sought leave to represent Dr Windsor. Mr Windsor’s application was refused by Deputy President Judge Cole, who also dismissed Dr Windsor’s applications for leave to file summonses.

37. On 13 May 2019, Dr Windsor made a further application by letter for the issue of summonses (see attached), which was refused by the Registrar of the Tribunal on 17 May 2019.

38. Dr Windsor did not appear at the hearing before the Tribunal on 18 June 2019. Mr Windsor appeared and sought to represent Dr Windsor. After the Tribunal denied leave, Mr Windsor was invited to sit in the gallery of the Tribunal. Mr Windsor did not comply with two requests by the presiding member to leave the bar table. As a consequence, the presiding member asked that he be removed from the hearing.

The Tribunal’s decision

39. The Tribunal found that the particulars of Complaint 1 had been established, but concluded that Complaint 1 itself had not been made out: at [46]. This was because the Tribunal was not able to determine on the balance of probabilities that Dr Windsor has an induced delusional disorder or another medical disorder which makes her vulnerable to paranoia and/or delusions or is otherwise impaired as alleged by the Commission: at [45].

40. The Tribunal found that Complaint 2 had been made out (at [54]), giving three reasons:

• Dr Windsor had demonstrated diminished control over her autonomy, diminished insight into her professional obligations to regulatory authorities and diminished insight into and capacity to respond to the adverse effects of her personal relationship with Mr Windsor to her professional obligations: at [48];

• Dr Windsor had, without reasonable excuse, refused to attend the appointment with Dr Samuels on 16 September 2016 and made no subsequent attempt to provide the Council with health information it had indicated that it had required: [51]; and

• Dr Windsor, by reason of s 145F of the National Law, did not have sufficient physical or mental capacity to practise the health profession in which she is registered: at [53].

41. The Tribunal also found that Complaint 3 had been made out and Dr Windsor was unsuitable to hold registration as a general practitioner, given its finding on Complaint 2 that Dr Windsor is not currently competent to practise as a general practitioner within the meaning of s 149C(1)(a) of the National Law: [57].

42. As indicated, the Tribunal cancelled Dr Windsor’s registration on 1 October 2019.

Proceedings in this Court

43. On 12 February 2020, this Court dismissed an application by Mr Windsor challenging the decision of Barrett AJA on 18 November 2019 refusing Mr Windsor leave to appear for Dr Windsor at the hearing of her application for expedition of the appeal and a stay of the Tribunal’s orders pending appeal: Windsor v Health Care Complaints Commission (No 1) [2020] NSWCA 16. The Court also dismissed Dr Windsor’s application for expedition and for a stay: Windsor v Health Care Complaints Commission (No 2) [2020] NSWCA 18.

44. Although Dr Windsor did not appear at the hearing of the appeal, I am satisfied that she had notice of the hearing. First, a Notice of Listing of the appeal on 30 April 2020 was given to Dr Windsor by the Registrar by letter dated 11 December 2019. Second, there is evidence in the form of an affidavit of Mr Shah affirmed 23 April 2020, that Dr Windsor has been served with the Appeal Books which were prepared by the Commission. Third, given the current COVID-19 pandemic, the parties were given notice of the option of appearing at the hearing of the appeal either by way of an audio visual link or by telephone. Dr Windsor failed to appear by either of the notified facilities, despite the relevant court login and telephone details having been provided to Dr Windsor by email dated 28 April 2020 (MFI 1).

45. At the commencement of the hearing, the Associate to the presiding judge attempted to contact Mr Windsor by telephone to ascertain if Dr Windsor intended to appear; he was described as Dr Windsor’s agent on the documents filed by Dr Windsor. That attempt was unsuccessful; a pre-recorded message stated that Mr Windsor’s mobile phone was either switched off or not available.

46. In the absence of oral argument from Dr Windsor, counsel for the active respondents indicated that they relied upon their written submissions. The Tribunal, which was joined as third respondent, took no part in the hearing having filed a submitting appearance, except as to costs. The Court reserved its judgment and has based its decision on the written materials before the Court.

The grounds of appeal

47. Dr Windsor was unrepresented before the Tribunal and again in this Court. Her amended notice of appeal contained ten grounds but did not identify with any precision grounds limited to questions of law. The amended notice of appeal, including annexures, is a lengthy 73-page document containing much material of an irrelevant or impermissible character. For example, under the heading “Details of Appeal”, the following appears:

3.   In giving its purported reasons for its Decision, the all Jew/Jewish Tribunal J:

(d)   Intentionally subverted the judicial process to psychoanalytically induce (in the minds of inadequately informed Gentile supreme court judges and Gentile judicial officers) purported symptoms indicative of a tribe-cooked designer mental disorder (folie à deux) modeled (sic) on a real, ubiquitous, tribal psychopathic delusional disorder of criminal genocidal nature as amply evidence in the following über quotes. [Emphasis in original.]

48. Dr Windsor’s written argument identified 43 issues in a Table of Grounds. This does not serve as a substitute for the proper articulation of the grounds of appeal, as required by Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.18(1)(e).

49. Keeping in mind the requirement that the appeal grounds must identify a question of law, it is convenient to address the grounds in the following order:

1. whether the Tribunal’s decision involved a want of procedural fairness because it was affected by actual or apprehended bias on the part of one of its members;

2. whether the Council erred by suspending Dr Windsor’s registration on 23 September 2016;

3. whether the Tribunal erred when exercising its discretion not to:

1. grant leave to appear to Mr Windsor (under s 165J(2) of the National Law and r 32 of the NCAT Act);

2. allow Dr Windsor to issue summonses for production of documents by way of her applications dated 7 April 2019 and 13 May 2019;

3. dismiss the complaint brought by the Commission pursuant to s 55 of the NCAT Act;

4. whether the Tribunal erred the manner in which it dealt with the complaint.

(1) Allegation of bias

50. Grounds 1(b) and 2 assert that the decision of the Tribunal on 1 October 2019 was affected by actual or apprehended bias for two reasons: first, that the Tribunal’s decision involved “total bias and partiality” because “only 11 consecutive lines” from Dr Windsor’s written submission were quoted in the Tribunal’s reasons, and second, that one of the members who constituted the (earlier) Tribunal on 1 February and 1 March 2019 – Dr Brian Morton – was also a member of the Medical Council.

51. As the High Court explained in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 (Concrete), questions of bias should be addressed first. That is because the necessary result, if bias is established, is a retrial: Concrete at [2]-[3] (Gummow ACJ), [117] (Kirby and Crennan JJ), [172] (Callinan J).

Apprehended bias – relevant principles

52. The test for recusal is whether a fair-minded lay person, with knowledge of the matters relied upon by Dr Windsor, might reasonably consider that the decision maker, here the Tribunal, might not carry out its functions with an impartial and unprejudiced mind: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]-[13]; Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [6]; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 (Michael Wilson) at [31]; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 94 ALJR 140. The test for apprehension of bias is objective. It does not require an assessment of the state of mind of the decision maker in question, as is necessary on an inquiry about actual bias: Michael Wilson at [33].

53. The application of the apprehension of bias principle involves two steps. The first is to identify what it is said might lead the decision maker to decide a case other than on its legal and factual merits. The second is to articulate the logical connection between the circumstances identified in that matter and the apprehension that the case might not be decided on its merits: Ebner at [8]; Michael Wilson at [32]-[33]; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [139]; Isbester v Knox City Council (2015) 255 CLR 135; [2019] HCA 20 at [21].

54. Accordingly, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker might not bring an impartial mind to bear upon the issues that are to be decided. The question is not whether the decision maker had in fact prejudged an issue: Michael Wilson at [67].

Actual bias – relevant principles

55. In Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]–[73] (Gleeson JA, Emmett JA and Tobias AJA agreeing), the following summary of principles was stated:

[68]   A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) (Sun v Minister) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited.

[69]   Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127].

[70]   As Gleeson CJ and Gummow J observed in that case at [71]:

“The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion.”

[71]   In the same case, Hayne J noted at [185] the several distinct elements underlying the assertion that a decision-maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.

[72]   His Honour observed at [186] that allegations of actual bias through prejudgment often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded.

[73]   The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 at 437 [33]. However, actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs (Bilgin v Minister) (1997) 149 ALR 281 at 289-290 per Finkelstein J; Sun v Minister at 127 per Burchett J and 135 per North J. As Finkelstein J said in Bilgin v Minister at 290:

“The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point insofar as the validity of the decision is concerned.”

Consideration

56. The first complaint by Dr Windsor is directed to the Tribunal’s reasons at [42], which are set out in full below, together with [43] for context:

[42]   We find that Dr Windsor did indicate, in the interview on 6 September 2016, that she believed that her phone was bugged. We rely on the panel’s record of the interview. Also, behind Tab 1 of Volume 1 of ‘The Respondent’s Written Submissions’ there is an ‘unofficial transcript’ of the interview on 6 September 2016 which records, on p 68, the following exchange, which supports this finding:

THE CREATOR (Mr Windsor): Ok, I’ll just tell you one small thing. I hope you at least have enough empathy to understand. Today’s technology allows private corporations and government agencies and to spy on people, by hacking into their smart phones, computers and even smart TVs. I am not talking about me, you or Dr Windsor. This applies to everyone who uses smart phones, computers and smart TVs. Because of the Website, the kind of political issues, and discoveries I write about on the Website, I have become a target. I won’t be surprised if what’s happening in this room is under surveillance.

Dr Friend:   And, you believe any of this? [Turning her face towards Dr Windsor]

Dr Windsor:   [Nod] or yes.

[43]   We find that Dr Windsor did leave the interview at the behest of Mr Windsor. We believe the report of that interview prepared by the panel over subsequent accounts given by Dr Windsor.

57. The finding by the Tribunal that Dr Windsor “nodded” or agreed that she believed her phone was bugged was open to the Tribunal on the evidence. That the Tribunal did not accept Dr Windsor’s subsequent accounts does not mean that the Tribunal prejudged the issue or failed to decide the matter impartially. An allegation of actual bias through prejudgment is not made out. Nor is there any basis for finding apprehended bias on the part of the Tribunal applying the principles stated above. Dr Windsor failed to identify anything that might lead the Tribunal to decide the matter other than on its legal and factual merits.

58. The second complaint by Dr Windsor is directed to Dr Morton and involves a question of apprehended, not actual, bias. It can be accepted that Dr Morton’s membership of the Medical Council was incompatible with his acting as a member of the first Tribunal at the hearings held on 1 February and 1 March 2019. That conclusion is also indicated by the fact that s 165B(6) of the National Law provides that a member of the Medical Council is ineligible to sit on the Tribunal. Dr Morton should be regarded as disqualified by the appearance of bias on the ground of interest or association, rather than prejudgment: Carver v Law Society of New South Wales (1997) 43 NSWLR 71, 99, 101 and 102.

59. However, this complaint goes nowhere. The defect in the constitution of the Tribunal on 1 February and 1 March 2019 was acknowledged by the Tribunal when the parties were informed on 20 March 2019 that a fresh Tribunal would need to be empanelled. That then occurred.

(2) Challenge to Medical Council’s decision to suspend Dr Windsor’s registration

60. Ground 3(e) asserts that the Council breached its statutory duty in suspending Dr Windsor’s registration. The relief claimed in the amended notice of appeal includes an order setting aside the suspension by the Council of Dr Windsor’s registration (Order 5(a)) and an order that the Council rectify its records (order 5(g)).

61. There is an initial question as to whether the appeal against the suspension by the Council is incompetent. Relevant to this question are the procedural courses available to a registered medical practitioner to challenge a suspension by the Council under s 150. The medical practitioner may:

1. apply to the Council under s 150A of the National Law for review of the suspension decision;

2. appeal to the Tribunal under s 159(1)(a) of the National Law against a suspension by the Council under s 150. Such an appeal is a full “merits review” proceeding by way of a new hearing with both the practitioner and the Council being entitled to adduce fresh evidence: National Law, s 159(3);

3. appeal to the Tribunal with respect to a “point of law” under s 159B(1) of the National Law;

4. apply to the Supreme Court for judicial review under s 69 of the Supreme Court Act 1970 (NSW), but not until an appeal under s 159B in respect of the point of law concerned has been made and disposed of: National Law, s 159B(4).

62. Dr Windsor only took the first course of applying to the Council under s 150A for review of the suspension. Her application was unsuccessful: see [32] above. Dr Windsor did not appeal to the Tribunal against the suspension by the Council, either under s 159(1)(a) of the National Law, or with respect to a “point of law” under s 159B(1) of the National Law. Given the latter circumstance, the precondition to seeking judicial review of the Tribunal’s decision was not satisfied.

62. Not having sought relief in the Tribunal appealing the suspension by the Council under s 150 of the National Law, Dr Windsor has no right to seek such relief in this Court. The appeal against the suspension by the Council is incompetent.

63. Further, as the Council correctly submitted, there is no practical utility in Dr Windsor now seeking to challenge the suspension by the Council. This is because the subsequent decision of the Tribunal to cancel Dr Windsor’s registration operates in place of any suspension imposed by the Council: Kirby v Dental Council of NSW at [14].

Other matters

65. Grounds 3(b), (c), (d), (f), (g), (h), (k) and (l) assert that the Council breached its statutory duty in dealing with the complaint against Dr Windsor specifically in conducting a health interview on 6 September 2016, in requiring Dr Windsor to undergo an examination by Dr Samuels on 16 September 2016, in holding the s 150 hearing, and in conducting the internal review under s 150A. The challenge to the direction by the Council under s 145E that Dr Windsor undergo an examination by Dr Samuels is addressed below at [96]-[98]. None of the other matters referred to in these grounds is relevant to the Tribunal’s decision to cancel Dr Windsor’s registration.

(3) Challenge to interlocutory decisions of Tribunal

66. Grounds 1(a) and (c), 4(a) and (b) and 8 challenge the Tribunal’s exercise of discretion with respect to certain interlocutory decisions.

Ground 4(a): Refusal to grant leave to appear to Mr Windsor

67. Dr Windsor challenges the Tribunal’s refusal of applications by Mr Windsor to appear on behalf of the appellant on 8 May 2019 and 18 June 2019.

68. On 8 May 2019, in giving ex tempore reasons for refusing Mr Windsor’s application to appear on behalf of Dr Windsor, Deputy President Judge Cole said:

Having considered the matter, I have decided to refuse your application, Mr Windsor. The fact that you were involved in the events leading up to Dr Windsor’s suspension means that you may be a witness, and that is at Dr Windsor’s choice in relation to the application. You may have relevant information which would lead you to be a witness in the case, and it is well-established that an advocate cannot be a witness. It is by the giving of sworn evidence that the tribunal is informed of facts, not by assertions from the bar table, and I take it from all of your submissions that you wish to put what you consider to be factual matters before this tribunal by means of you making assertions from the bar table, sometimes in cross-examination. That is not the way that these proceedings run. That is not the way any legal proceeding is run. An advocate should not also be a witness, that is well-established.

Further reasons for refusing your application are that you have – and I think you conceded – used insulting and inappropriate language in correspondence with the commission and the Medical Board of New South Wales, and on some interpretations of that language it could be taken to be threatening, though I understand that you have a different interpretation of it.

From what you have said today and from documentary material, it is very clear to me that you do not accept the limited compass of the issues in this matter, that you wish to frame them within what you see as a much larger factual context which would go very far beyond the jurisdiction of this tribunal. For that reason, your involvement would lengthen and make much more expensive these proceedings, in a way that does not enhance the deciding of them.

For those reasons it is my decision that you do not have sufficient knowledge of the issues in dispute, I wish I really meant understanding of the issues in dispute, to enable you to represent the applicant effectively before the tribunal, and I also find that you do not have the ability to deal consistently, fairly and honestly with the tribunal and other persons involved in the proceeding.

69. On 18 June 2019, the Tribunal gave the following reasons for refusing to allow Mr Windsor to appear on behalf of Dr Windsor at [38]:

Dr Windsor did not appear at any of the directions hearings leading to the second hearing. On most occasions, Mr Windsor attempted to appear for Dr Windsor. Given his involvement in the events leading up to the complaint, the absence of any training which would equip him to advise Dr Windsor in a manner likely to assist her and his plain desire to use the proceedings to expound his theories and beliefs, Mr Windsor was not given leave to represent Dr Windsor. The Tribunal requested Mr Windsor to inform Dr Windsor that it was desirable that she engage with her professional regulator and in the proceedings.

Grounds 4(b) and 8: Refusal to allow Dr Windsor to issue summonses

70. Next, Dr Windsor challenges the Tribunal’s decision refusing to allow Dr Windsor to issue summonses by way of application dated 7 April 2019. That application was heard by the Tribunal on 8 May 2019 at which Mr Windsor attended and Dr Windsor did not appear. Short oral reasons were given by Deputy President Judge Cole refusing that application:

HER HONOUR: Thank you. I’m going to deal with the summons more generally than that. Documents 28 to 31 which are sought from the Tribunal, it is not appropriate to seek documents from the Tribunal. I need an application for a summons. The use of the word, “genuine”, I think relates to Mr Windsor’s belief that the documents that he has been provided with are not genuine. So this is really a repeat of requests that he has made which has been, I think, 15 satisfied, as to documents 28, 29 and 30. So I won’t make any orders with respect to those. As to document 31, it’s not clear to me how that could possibly be relevant to this proceeding. The documents sought from the Health Care Complaints Commission has just been dealt by you, Mr Mathur, and I will not deal with them further by way of an order as they have been 20 provided voluntarily. As to documents 1 to 23, this matter has in fact already been heard and the transcript is available and has been provided as I understand it, to both parties. In those circumstances, it seems to me that it is unlikely that any of these documents would be required for the fair hearing of the proceedings that are to come and I decline to make any further orders. So 25, I’m refusing the application. Should Dr Windsor wish to renew it, then she may contact the registry and ask for the matter to be listed. In which case, we can revisit the issue if she wishes to renew an application. That is, make a fresh application.

71. Dr Windsor also challenges the decision of the Registrar of the Tribunal on 17 May 2019 refusing Dr Windsor’s further application for the issue of summonses. The Registrar gave brief written reasons for refusing that application. Six of the summonses were refused on the ground that the relevance of the documents sought in the summons had not been established. The seventh summons, relating to the Commission, was refused on the ground that it was not compellable.

Grounds 1(a) and (c): Failure to summarily dismiss the complaint brought by the Commission

72. Finally, Dr Windsor contended that the Tribunal erred by not dismissing the complaint brought by the Commission pursuant to s 55(1)(b) of the NCAT Act. Section 55(1)(b) provides that the Tribunal may dismiss at any stage any proceedings before it, if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance.

73. According to the submission, Dr Windsor’s “unwavering assertive position from the very beginning”, is that the complaint should have been summarily dismissed. The Tribunal may be taken to have rejected this submission, given its decision to cancel Dr Windsor’s registration.

Consideration

74. The definition of “interlocutory decision” in NCAT Act s 4 includes, relevantly, the issue of a summons (sub-par (c)); the summary dismissal of proceedings (h); and the granting of leave for a person to represent a party to proceedings (sub-par (h1)). As indicated, Dr Windsor has not sought leave to challenge the interlocutory decisions referred to above: NCAT Act, Sch 5, Pt 6, cl 29(6).

75. In addition to the difficulty of not having sought leave, it is well established that parties who seek to challenge a discretionary interlocutory decision, such as the types of decision in issue here, face a difficult task. Appellate intervention will be warranted only upon the principles stated in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40. In Micallef v ICI Operations Australia Pty Ltd [2001] NSWCA 274 at [45], Heydon JA (Sheller JA and Studdert J agreeing) accepted that to succeed it was necessary for an applicant challenging such a decision to establish that the decision-maker:

(a)   made an error of legal principle,

(b)   made a material error of fact,

(c)   took into account some irrelevant matter,

(d)   failed to take into account, or gave insufficient weight to, some relevant matter, or

(e)   arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.

76. There is a further difficulty in challenging the decision of the Tribunal refusing to issue summonses and refusing to grant leave to represent a party. That these decisions are decisions on a matter of practice and procedure means that this Court should be slow to interfere and ought not reverse the Tribunal’s decision unless convinced that it is plainly erroneous: Adam v P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39. It has been said that “such appeals are, appropriately kept on a tight rein”: State of New South Wales v Mulcahy [2006] NSWCA 303 at [3] (Bryson JA).

77. Dr Windsor has not established that there is any basis that conforms with the principles on which this Court could, or should, intervene.

(4) Whether Tribunal erred in law in dealing with the complaint

78. Dr Windsor contended that the Tribunal erred in the manner in which it dealt with the complaint. As will be seen, some of these grounds are repetitive of matters already dealt with, some do not raise a question of law, some are based on irrelevant or impermissible material and the balance are not made out.

Ground 1

79. Ground 1(a), (b) and (c), including the particulars in (d) and (e), has already been addressed: see [50]-[59], [72]-[77] above.

Failure of the Tribunal to expedite matters

80. Ground 1(f) asserts that the Tribunal breached its duty to expedite matters, referring to cl 11(1) of Sch 5D (“Proceedings before Professional Committees or the Tribunal [NSW]”) of the National Law. Clause 11(1) provides that it is the duty of a Committee or the Tribunal to hear inquiries and appeals under this law and to determine those inquiries and appeals expeditiously.

81. In addition to the difficulty that this complaint does not identify any question of law, the procedural chronology of the complaint before the Tribunal referred to at [34]-[38] above makes plain that there is no substance in the contention that the Tribunal did not determine the matter expeditiously.

Grounds 4(c) and (b)(iii), 5(c) and 7(c)

Failure to address evidence and arguments

82. Grounds 4(c), 5(c) and 7(c) asserts that the Tribunal erred by failing to consider Dr Windsor’s written submissions and evidence. Presumably the asserted error of law is the asserted failure to give adequate reasons.

83. The Tribunal was required to give reasons for its decision: National Law, s 165M(2)(c). The reasons given were adequate: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273, 280-281. The reasons set out the findings on material questions of fact, referred to evidence and other material on which the findings were based and articulated the reasons for making the order under s 149C(1) cancelling Dr Windsor’s registration: National Law, s 165M(2). Contrary to Dr Windsor’s contention, the Tribunal did consider Dr Windsor’s written submissions and evidence, to which reference was made in the Tribunal’s reasons at [40] and [42].

84. To the extent that much of the material in Dr Windsor’s submissions comprised allegations and contentions by Mr Windsor, there was no necessity for the Tribunal to address matters raised by Mr Windsor which were not relevant to the Tribunal’s decision-making function. As the Tribunal found at [40]:

Much of the material filed relates to Mr Windsor’s theories and beliefs, which [are] very far from being mainstream theories and beliefs. In some of the documents, Mr Windsor refers to himself as “The Creator”.

85. Ground 4(b)(iii) asserts that the Tribunal erred in not giving reasons for refusing to allow the issue of summonses dated 7 April 2019. This complaint is misconceived. The Tribunal gave brief reasons for its decision: see [70] above. The brevity of the reasons reflected in large part the brevity of the argument advanced before the Tribunal by Mr Windsor as to why 31 categories of documents were sought by Dr Windsor from the Council, Dr Samuels, Dr Arnold and Dr Friend, the Commission, Hornsby Hospital and the Tribunal itself. The reasons given by the Tribunal were adequate; particularly taking into account the decision was a decision on a matter of practice and procedure.

86. Ground 4(b)(iv) asserts that the Tribunal failed to consider an application to review and set aside the decision on 8 May 2019 refusing to issue summonses. This complaint is misconceived. The Registrar dealt with the further application on 17 May 2019, which was dismissed: see [71] above.

Ground 3

87. Ground 3 asserts that the Tribunal erred in law by failing and/or refusing, without giving reasons, to decide a number of “material questions of law having a decisive impact on the judicial outcome in the Tribunal. The matters identified assert breaches of statutory duty by the Council and the Commission and others.

88. The alleged breaches of statutory duty by the Council have been addressed at [60]-[65] above.

89. As to the alleged breaches of statutory duty by the Commission, none of the matters referred to in ground 3(a), (i), (j), (k) and (l) were relevant to the hearing of the complaint by the Tribunal. The Tribunal’s jurisdiction is primarily protective in nature, rather than punitive: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. In the exercise of functions under a NSW provision of the National Law, the protection of the health and safety of the public must be the paramount consideration: National Law, s 3A. The Tribunal’s function with respect to the complaint was to consider and determine whether any of the grounds of the complaint had been made out and if so, what, if any, protective orders should be made under the National Law, such as cautioning, reprimanding or counselling the practitioner under s 149A, imposing a fine on the practitioner under s 149B, suspending or cancelling the practitioner’s registration under s 149C. None of the questions identified in ground 3 relating to the Commission are relevant to these matters and a failure to answer an irrelevant question was not an error of law by the Tribunal.

90. One further matter should be mentioned. To the extent that ground 3 asserts improper conduct by the Council, the Commission, the Tribunal and certain individuals (described in Dr Windsor’s submissions as “individual tribe members (or tribal assets)”), the allegations are without evidentiary foundation.

Ground 4

91. Ground 4 asserts that the Tribunal committed six errors of law. The first concerns the refusal to grant leave to Mr Windsor to appear for Dr Windsor (ground 4(a)). The second concerns the refusal of Dr Windsor’s applications for the issue of summonses dated 7 April 2019 (ground 4(b)). The two grounds have been addressed at [67]-[71] and [74]-[77] above. The third concerns the asserted failure by the Tribunal to consider Dr Windsor’s “comprehensive rebuttal” based on relevant evidence and law (ground 4(c)). This has been addressed at [82]-[84] above.

Asserted error in allowing inadmissible evidence

92. The fourth matter concerns the alleged reliance by the Tribunal on an earlier complaint against Dr Windsor in 2015 which was discontinued (ground 4(d)). Reference was made to s 51(1) of the HCC Act which provides that evidence of anything said or of any admission made during the conciliation process is not admissible in any proceedings before a court, tribunal or body. Presumably the asserted error of law would be formulated as the admission of inadmissible material.

93. This complaint is misconceived. The Tribunal’s reasons at [4] under the heading “Background” referred to the earlier complaint against Dr Windsor in 2015, noted that the investigation of this complaint was discontinued and expressly stated that “this incident is not the subject of complaint in these proceedings” [emphasis added]. The Tribunal did not admit into evidence anything said or any admission made during the conciliation process (if any) relating to the earlier discontinued complaint. There has been no breach of the prohibition in s 51(1) of the HCC Act.

Asserted errors in the construction of s 145E and s 145F

94. The fifth matter concerns the Tribunal’s findings that:

• it was reasonable for the Council to require Dr Windsor to attend the appointment before Dr Samuels, pursuant to s 145E of the National Law: at [50]; and

• Dr Windsor’s refusal to attend the examination by Dr Samuels, without reasonable excuse, engaged the evidentiary presumption in s 145F of the National Law: at [51] (ground 4(e)).

95. Presumably, the asserted error of law would be formulated as an absence of evidence to sustain such a finding or inference of fact: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 358 (Mason CJ). This complaint is not made out.

96. The first finding was open to the Tribunal on the evidence and no error of law has been demonstrated. In addition to the matters referred to by the Tribunal, namely, the substance of the anonymous complaint in April 2016, and the objects of the National Law, s 3 and s 3A, further support for this finding can be seen in the report by the panel of the health interview on 6 September 2016, specifically, the concerns held by the panel in relation to Dr Windsor’s well-being and the panel’s recommendation that the Council take further urgent action to protect the public.

97. The second finding directs attention to the meaning of “reasonable excuse” in s 145F. In Taikato v R (1996) 186 CLR 454 at 464, Brennan CJ, Toohey, McHugh and Gummow JJ said that the relevant meaning of the term “reasonable excuse” “depended upon the circumstances of the individual case and also on the purpose of the provision to which the defence of “reasonable excuse” is an exception”. One purpose of s 145E of the National Law is to protect the health and safety of the public from medical practitioners who do not have sufficient physical or mental capacity to practise: see ss 3 and 3A of the National Law. In that context, the expression “reasonable excuse” in s 145F requires an explanation to be advanced which would justify the medical practitioner’s failure to comply with a direction under s 145E to undergo an examination.

98. Dr Windsor did not give evidence. That Dr Windsor asserted in her letter to the Council dated 16 September 2016 that the anonymous complaint was fabricated and she disputed that the Council had authority to require her to undergo an assessment, does not establish facts which were capable in law of providing a reasonable excuse. The finding of absence of reasonable excuse under s 145F was open to the Tribunal and no error of law has been demonstrated.

Asserted error in hearing process

99. The sixth matter concerns the asserted failure by the Tribunal to follow a two-stage hearing process, with separate determinations of the complaint and any protection orders (ground 4(f)). Presumably the asserted error of law would be formulated as a failure by the Tribunal to afford procedural fairness in terms of fair notice of the protection orders sought by the Commission and a fair opportunity to respond. This complaint is not made out.

99. First, Dr Windsor was given sufficient notice in writing by the Commission on 8 October 2018 that it would be seeking an order for cancellation of her registration as a medical practitioner. Second, contrary to Dr Windsor’s submission, the Tribunal did not state at the directions hearing held on 20 March 2019 that there would be a separate hearing on the making of any protection orders. Third, Dr Windsor did not seek a separate hearing on the making of protection orders. Fourth, whilst the Tribunal may adopt a two-stage hearing process with respect to some complaints, given their nature or the circumstances of the case, such as a complaint of professional misconduct (see, for example, King v Health Care Complaints Commission [2011] NSWCA 353), that analogue is not apposite to the nature of the complaint made against Dr Windsor – that she suffered from an impairment, was not competent to practise medicine, and is otherwise not a suitable person for registration as a medical practitioner.

Ground 5

101. Ground 5 asserts that the Tribunal erred in law in improperly adjudicating on the Commission’s application.

Asserted error in finding that particulars to complaint 1 made out

102. Ground 5(a) asserts that the Tribunal failed to apply the correct principle in finding that the particulars of complaint 1 were made out, but “curiously” found that complaint 1 had not been made out. To the extent that this ground challenges the factual finding that the particulars of complaint 1 were made out, Dr Windsor has not shown an absence of evidence to sustain that factual finding: Australian Broadcasting Tribunal v Bond. This finding was open to the Tribunal and no error of law has been demonstrated. Nor is there any inconsistency between the two findings. Having found that the particulars of complaint 1 were made out, the Tribunal was required to separately determine whether such matters constituted “impairment” within the meaning of s 5 of the National Law. The Tribunal was not so satisfied. It was for this reason that complaint 1 was not made out.

Asserted error in finding of not competent to practise

103. Ground 5(b) asserts that the Tribunal failed to properly construe s 139(a) of the National Law in finding at [54] of its decision that complaint 2 (lack of competence) had been made out. The terms of s 139(a) are set out at [9] above. The requirement in s 139(a) of competence to practise a health profession includes that a person “has sufficient … mental capacity … to practise the profession”.

104. The Tribunal’s ultimate finding that Dr Windsor was not competent to practise, was based on two earlier findings. One was the finding at [48] that on the basis of the background events set out in its reasons, including Dr Windsor’s response to the investigation of the complaint by the Council and the subsequent investigation by the Commission, and her decision not to participate in the proceedings before the Tribunal:

… Dr Windsor has demonstrated diminished control over her autonomy, diminished insight into her professional obligations to regulatory authorities and diminished insight into and capacity to respond to the adverse effects of her personal relationship with Mr Windsor to her professional obligations.

105. The other matter was the finding at [53] that the failure of Dr Windsor, without reasonable excuse, to comply with the Council’s direction under s 145E to undergo an examination by Dr Samuels was evidence, for the purposes of s 145F of the National Law, that Dr Windsor did not have sufficient mental capacity to practise the health profession in which she was registered.

106. That the Tribunal, after considering the evidence, concluded that Dr Windsor was not competent to practise does not constitute an error of law.

107. Grounds 5(b)(vii), (viii), (ix), (x) and (xi) make a number of other complaints. For example, ground 5(vii) asserts:

(vii) All of the letters and emails either in Dr Gina Windsor's name or DR NEIL WINDSOR's name, which the Tribunal exploited by including in its decision, often out of context, for purportedly justifying its decision and misleading improperly informed judges and or judicial officials of the Supreme Court were written between 23 May 2016 and 22 May 2018 in self-defence "out of necessity" against tribal trickery and criminality involved in entrapping the Appellant, and such deceit and criminality were later proven by the discovery of specific criminal fraud, deceit, tampering with evidence, acts of terrorism, perversion of justice and professional misconduct involved in the malicious prosecution. The linguistic content used by DR NEIL WINDSOR in self-defence and resistance against tribal crimes, in its most unfavourable interpretation, is benign and or trivial in the context of what is permissible under Division 3 Self-Defence s 418-423 of the Crimes Act 1900 and the nature of crimes unleashed by the tribal criminals.

None of these grounds provide a basis for challenging the Tribunal’s decision, let alone identifies an error of law.

Asserted error in finding unsuitability

108. Ground 5(c) asserts that the Tribunal failed to properly construe s 144(e) of the National Law in finding at [57]-[59] of its decision that complaint 3 was established. Section 144 is set out at [8] above; s 144(e) provides that the grounds on which complaint may be made about a registered health practitioner include that the practitioner “is otherwise” not a suitable person to hold registration in the practitioner’s profession.

109. According to Dr Windsor’s submission, the particulars of complaint 1 (impairment) and complaint 2 (lack of competence), which were repeated and relied upon in support of complaint 3 (unsuitable), could not be so relied upon because those particulars were not “so independent and unrelated” to the Commission’s complaint that Dr Windsor was not competent to practise her profession.

110. The Commission submitted that the words “is otherwise” in s 144(e) simply operate to enable the Tribunal to hear other types of complaints, other than those mentioned in s 144(a)-(d). That submission accorded with authority in the Tribunal which has interpreted the word “otherwise” in s 144(e) as limiting the operation of that provision to grounds for complaint not set out under ss 144(a)-(d): Health Care Complaints Commission v Simpson [2018] NSWCATOD 49 at [60]; Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [59]; Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 at [57]; Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [51]. Dr Windsor did not submit to the contrary.

111. The question of construction in relation to s 144(e) is whether, as the Commission submitted, the National Law should operate to permit the Tribunal to find a practitioner is otherwise not a suitable person to hold registration (s 144(e)) on the same underlying conduct of another ground of complaint, such as “lack of competence” (s 144(c)). According to the submission, this interpretation would best achieve the purpose or object of the National Law and is to be preferred to any other interpretation, as mandated by the purposive approach to the National Law required by cl 7 of Sch 7 of the National Law.

112. The starting point is to recognise that the same particulars of underlying conduct can be characterised in more than one way for the purpose of s 144 of the National Law, when the Tribunal is exercising its powers under s 149C(1). That is, the underlying conduct relied upon for a complaint is not mutually exclusive to one of the complaints that can be made under s 144(a) to (e). That is also reflected in the language of s 149C(1) where the “is otherwise” limitation in s 144(e) is not repeated in s 149C(1)(d).

113. In Health Care Complaints Commission v Do, the same particulars of underlying conduct were characterised by the Tribunal for the purposes of a complaint under s 144(b) as supporting both a finding of “unsatisfactory professional conduct” within the meaning of s 139B(1) of the National Law and a finding of “professional misconduct” as defined in s 139E of the National Law.

114. Similarly, underlying conduct with respect to the circumstances of a criminal offence which is of a sufficiently serious nature to render a practitioner unfit to practise (s 149C(1)(c)), may also be characterised as rendering the practitioner unsuitable for registration (s 149C(1)(d)). Importantly, the meaning of “suitability” is not fixed or comprehensively defined in the National Law and includes aspects of competence (s 55(1)(d) and 55(h)(ii)), as does s 139(b)), impairment (s 55(1)(a)) and criminal conduct (s 55(1)(b)).

115. Health Care Complaints Commission v Haasbroek involved four complaints made against a medical practitioner; two relied on criminal convictions – one for assault occasioning actual bodily harm and one for domestic violence (s 144(a)); the third relied on unsatisfactory professional conduct (s 144(b)); and the fourth relied on circumstances rendering the practitioner unsuitable to hold registration (s 144(e)). The practitioner admitted the first three complaints and disputed the fourth. The fourth complaint was based on the particulars of the earlier complaints and some additional conduct. In accepting that the same particulars of the underlying conduct could be relied upon for the fourth complaint, the Tribunal said at [60]:

On a plain reading, the words “or otherwise” must denote something other than the types of conduct or circumstances set out in s 144(a) to (d). We agree that the admissions of the criminal offences themselves are only relevant to s 144(a), and that the admission of unsatisfactory professional conduct is only relevant to s 144(b). However, it appears to us that s 144(e) may be established on evidence of the underlying conduct that led to the criminal charges and convictions. The factual circumstances of events which ground a criminal conviction or finding may, depending on their gravity, if established to the requisite standard, constitute a separate and distinct complaint to the admitted complaints brought under s 144(a) and (b). In other words, those circumstances, of themselves, may otherwise render a practitioner unsuitable for registration.

116. In this case, having found complaint 2 (lack of competence) had been made out, the Tribunal said at [57] with respect to complaint 3 (unsuitable) that “it follows that [Dr Windsor] is presently unsuitable to hold registration as a general practitioner”. That finding is to be understood as based on the particulars of the underlying conduct relied upon for complaint 2: see [104]-[105] above. The Tribunal’s characterisation of the circumstances described in its reasons and Dr Windsor’s conduct in the proceedings before the Tribunal as rendering Dr Windsor unsuitable for registration does not constitute an error of law. That finding was well-open to the Tribunal on the evidence, in particular, having regard to the findings of the Tribunal at [48], which are set out at [104] above.

117. In light of this conclusion, it is not necessary to decide the Commission’s alternative submission that the Tribunal was permitted to find a lack of competence (s 144(c)) and the cancellation order which followed was appropriate on this ground alone under s 149C(1)(a) of the National Law. However, I should indicate my view that if it were necessary to decide I would accept this submission. The finding of lack of competence was of a sufficiently serious nature to justify the cancellation of Dr Windsor’s registration.

Ground 6

118. Ground 6 asserts that the Tribunal made a deceitful and misleading statement of fact “by omission” to contrive the notion of a new hearing before the Tribunal on 18 June 2019. This ground is directed to the Tribunal’s reasons at [37] as follows:

The hearing before us was the second occasion upon which the matter was heard in the Tribunal. After the first occasion, prior to the delivery of any decision, the Tribunal was discovered to have been improperly constituted, and this panel was then appointed to hear the matter afresh. The appellant submitted that there was no fresh or new hearing before a differently constituted Tribunal on 18 June 2018. This complaint is entirely misconceived. And no question of law is raised.

119. Dr Windsor submitted that the proceedings before the Tribunal on 1 February and 1 March 2019 formed a “contiguous integral part” of the proceedings before the Tribunal on 18 June 2019. This submission is misconceived. None of the members of the Tribunal on 18 June 2019 were part of the Tribunal which heard the complaint on 1 February and 1 March 2019.

120. Dr Windsor further submitted that the hearing before the Tribunal on 18 June 2019 was “in all substantive material respects so constituted to introduce total tribal bias … and to advance judicial and extra-judicial tribal interests including tribal treason and tribal genocide of Gentiles”. There is no substance in this assertion, which is an example of the irrelevant and impermissible character of this ground of appeal. No question of law is identified.

Ground 7

121. Ground 7 asserts that the Tribunal made a deceitful and misleading statement of fact “by commission” relating to the power of attorney relied upon by Mr Windsor. This ground is directed to the Tribunal’s reasons at [39] as follows:

Mr Windsor filed a set of documents comprising a single volume, and then, prior to the hearing, filed “The Respondent’s Written Submissions” Volumes 1 and 2. Mr Windsor included in Volume 1 a general power of attorney granted by Dr Windsor to him on 14 October 2016. He argued, in a directions hearing, that this power of attorney gave him authority to act on Dr Windsor’s behalf in the hearing of the matter before the Tribunal, but this argument was unsuccessful.

122. It is not in dispute that Mr Windsor first presented the power of attorney to the Tribunal in person on 18 June 2019, on which occasion he was refused leave to represent Dr Windsor. The reference in [39] of the Tribunal’s reasons to Mr Windsor having argued in a directions hearing that the power of attorney gave him authority to act on Dr Windsor’s behalf is correct. That was a reference to the directions hearing on 8 May 2016 at which Mr Windsor made reference to and relied upon the existence of the power of attorney, without producing that document, in support of his application for leave to represent the appellant. No question of law is identified.

123. Ground 7(a)(i) asserts that the Tribunal colluded with counsel for the Commission to “judicially ambush” Dr Windsor by relying on a case of irrelevant precedential value. To the extent that this ground suggests some sort of unfairness on the part of the Tribunal in refusing Mr Windsor’s application for leave to represent Dr Windsor, the assertion is not made out. In opposing Mr Windsor’s application for leave to appear for Dr Windsor, counsel for the Commission made reference to Giniotis v Farrugia (NSWCA, Kirby P, Glass JA and Samuels JA, 19 August 1985, unreported; BC8500603). Giniotis v Farrugia is consistent with counsel’s submission that the power of attorney in favour of Mr Windsor did not automatically confer the right to appear for her in the proceedings before the Tribunal: see also Windsor v Health Care Complaints Commission (No 1) 2020 NSWCA 16.

124. Nor does the transcript support the assertion of collusion or ambush. In refusing to grant Mr Windsor leave to appear on behalf of Dr Windsor, Deputy President Judge Cole said on 18 June 2019:

HER HONOUR: Thank you.

MATHUR: I’ve handed Mr Windsor a copy of that authority.

HER HONOUR: Thank you. Regardless of the date of the power of attorney, there is no doubt that a power of attorney does not confer the ability to appear and represent a person in legal proceedings. That is in addition to the reasons that I gave you on the previous occasion, Mr Windsor, and those reasons were 40 that you were involved in some of the incidents which has led to these proceedings and your involvement in these proceeding to this time has shown very clearly that you are unable to focus on what the hearing is about, which is Dr Windsor’s health and her conduct as a medical practitioner both in the past and in the future and her registration, instead you seek to use the proceedings 45 to bring in a wide range of material specific to your own personal interests and preoccupations. And finally you have no relevant training or qualifications, you are not legally qualified.

So for all of those reasons once again your application to represent Dr Windsor in these proceeding is refused. Now you are required, Mr Windsor, to remove yourself from the bar table and to take yourself either out of the room or into the body of the Court where you may listen to the proceedings. That is the end of this application, Mr Windsor.

125. Ground 7(a)(ii) asserts that the Tribunal instructed a “premeditatedly” placed “policeman” to remove Mr Windsor from the hearing in the middle of an impromptu argument. This ground concerns the removal of Mr Windsor from the bar table at the hearing before the Tribunal on 18 June 2019. The transcript records that the Deputy President directed the removal of Mr Windsor after he twice refused to leave the bar table when requested to do so. The allegation that this direction was “premeditated” is not made out. There is an additional difficulty with this ground because it concerns a challenge to a discretionary interlocutory decision of the Tribunal on a matter of practice and procedure and leave to appeal has not been sought. Nor has Dr Windsor established that there is any basis that conforms with the principles on which this Court could, or should, intervene: Micallef at [45].

126. Ground 7(a)(iii) asserts that the Tribunal failed to give proper reasons and gave incorrect reasons, with the intent to mislead, by refusing to consider an application by Dr Windsor dated 13 May 2019. This seems to be a reference to Dr Windsor’s application to review the Tribunal’s decision of 8 May 2019 refusing leave to issue summonses for the production of documents. As indicated, the Registrar of the Tribunal refused this fresh application on 17 May 2019 giving brief oral reasons: see [71] above. The complaint of absence of reasons is misconceived.

127. Ground 7(b) asserts that the Tribunal tampered with its records and concealed the existence of an application dated 13 May 2019 to set aside and vary the earlier decision of the Tribunal on 8 May 2019. Again, this complaint is misconceived. This application was dismissed by the Registrar of the Tribunal on 17 May 2019.

128. Grounds 7(c) and (d) assert that the Tribunal made a deceitful and misleading statement of fact in its reasons at [40], when stating that it had taken into account the material in the volumes filed by Mr Windsor insofar as they are relevant and that much of the material filed related to Mr Windsor’s theories and beliefs. This complaint has been addressed at [82]-[84] above.

129. Ground 7(e) asserts that the Tribunal made a deceitful and misleading statement of fact on 20 March 2019 concerning the existence of a transcript of the s 150 hearing before the Council on 23 September 2016. The transcript of the directions hearing on 20 March 2019 records that the solicitor for the Commission stated that to the best of her knowledge, a transcript of the s 150 hearing before the Council was not kept in circumstances where Dr Windsor failed to appear before the Council. Dr Windsor pointed to a statement in a later report by Dr Samuels dated 19 July 2017, referring to a copy of the “transcript of Proceedings held under Section 150, dated 23 September 2016”. However, the quote that appears in the report of Dr Samuels from the so-called “transcript” is in fact an extract of part of the reasons for decision of the Council under s 150. It is plain that Dr Samuels mis-described the Council’s reasons for decision as being a “transcript” of the s 150 hearing. No error of law has been identified.

Ground 8

130. Ground 8 asserts that the Tribunal perverted the course of justice by denying every application by Dr Windsor for summonses to be issued. This complaint has been addressed at [70]-[71], [74]-[77] above.

Ground 9

131. Ground 9 asserts that the Tribunal aided and abetted tribal terrorism committed against Dr Windsor and every member of her family over a period of 25 years. This ground is based on irrelevant or impermissible material as is evident from the following extract of this ground in the amended notice of appeal:

[9]   The Tribunal J aided and abetted tribal terrorism committed against the Appellant, and every member of the Appellant’s family over a period of 25 years in (1) suppressing by non-mention (2) denying the discovery of full extent through summonses and (3) being callously indifferent to the objective evidence of tribal crimes and terrorism which included under separate sections behind:

(a)   Tab 4: Cannibal Crimes against Children, including chemical poisoning to tamper with the endocrinal system and fraudulent alteration of exam marks in school and university. University crimes committed to effect fabricated failures with a view to suspension from the University;

… [Emphasis in original.]

132. No purpose would be served in referring to Dr Windsor’s submissions in support of this ground. No question of law is identified.

Ground 10

133. Ground 10 asserts that the Tribunal failed to consider a Constitutional matter. The notice given by Dr Windsor under s 78B of the Judiciary Act 1903 (Cth) stated the central ground of the asserted “Constitutional cause of action, which is related to every other ground by one degree of separation” as follows:

[2.1]   The Appellant was framed, entrapped and maliciously prosecuted by the Respondents as a collateral victim due to her relationship with the ATTORNEY (OF POWER), who on his own independent initiative made a unique Creation (the CREATION) for People of the Planet by discovering the Devil and divining the DIVINE, in the course of his independent private research, a perspective of which was published in November 2011 as a PhD research proposal to Harvard University titled: “Shared Value as a Snared Value – to control, continue and conserve capitalism”, advocating “a divine doctrine dedicated to driving innovation and economic growth” among the People of the Planet for their benefit;

…

[2.3] The Appellant argued before the Tribunal that it was this CREATION and consequent PROOF as to the nature of the Constitution which caused the respondents to breach their statutory duties repeatedly, and overreach the boundaries of civil prosecution and civil adjudication by resorting to criminal conduct such as fraud, deceit, evidence tampering, transcript tampering, and perversion of course of justice, in trying to conceal the TRUTH;

… [Emphasis in original.]

134. No question of law is identified in the s 78B notice, let alone any question of law under the Constitution. The appeal does not raise any issue under the Constitution.

Other matters: Notice of motion – 27 April 2020

135. By notice of motion filed 27 April 2020, Dr Windsor and Mr Windsor sought a variety of relief, including relevantly, that leave be granted to Mr Windsor to be joined as the second appellant pursuant to UCPR, r 6.19(1).

136. UCPR, r 6.19(1) provides:

6.19   Proceedings involving common questions of law or fact (cf SCR Part 8, rule 2; DCR Part 7, rule 2; LCR Part 6, rule 2)

(1)   Two or more persons may be joined as plaintiffs or defendants in any originating process if –

(a)   separate proceedings by or against each of them would give rise to a common question of law or fact, and

(b)   all rights of relief claimed in the originating process are in respect of, or arise out of, the same transaction or series of transactions,

or if the court gives leave for them to be joined.

(2)    Leave under subrule (1) may be granted before or after the originating process is filed.

137. UCPR, r 6.19 is made applicable to proceedings in the Court of Appeal by r 51.1(3), subject to such modifications as are necessary, including relevantly, that a reference to an originating process includes a reference to a notice of appeal and a reference to a plaintiff includes a reference to a person who commences proceedings in the Court (whether as an appellant or otherwise): r 51.1(4).

138. The application to join Mr Windsor as an additional appellant should be refused because there is no common question of fact or law, nor rights of relief claimed arising out of the same transaction or series of transactions. Mr Windsor was not a party to the proceedings before the Tribunal; the Tribunal’s order cancelling Dr Windsor’s registration as a medical practitioner does not affect any legal right or interest of Mr Windsor; and he has no entitlement to any of the claims for relief by Dr Windsor on the appeal. Further, the efficient use of the resources of the parties to the appeal and the Court would not be facilitated by permitting the joinder of Mr Windsor as the second appellant.

139. None of the other relief sought in the notice of motion, to the extent that it is comprehensible, is appropriate. Nor should the Court spend time addressing claims for interlocutory relief which are of an impermissible character or scandalous nature.

Affidavits filed without leave

140. After judgment was reserved, Mr Windsor filed an affidavit on 7 May 2020 styled “The God in Creation” comprising 125 pages and on 2 June 2020, Mr Windsor sent another affidavit to the Court by email styled “The God’s White Book”, referring to 7 volumes of documents delivered to the Court on 27 May 2020. As leave to file these affidavits and materials was neither sought nor granted, they should be ignored: Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230 at [147]; Bull v Lee (No 2) [2009] NSWCA 362 at [9]; Wollongong City Council v Papadopoulos [2019] NSWCA 178 at [140].

Conclusion and orders

141. The appeal has failed and there is no reason why costs should not follow the event: UCPR, r 42.1. The notice of motion filed 27 April 2020 should be dismissed with costs.

142. I propose the following orders:

1. Appeal dismissed.

2. Dismiss the notice of motion filed 27 April 2020.

3. Appellant to pay the costs of the first respondent and the second respondent of the proceedings in this Court.

143. LEEMING JA: I agree with Gleeson JA.

144. McCALLUM JA: I agree with Gleeson JA and would add only one remark. A disturbing feature of this case was Dr Windsor’s notable absence in the conduct of the appeal. The Court has not heard her in person and it may be doubted that she is the author of any of the written grounds, applications, arguments or correspondence received by the Court. The Court would be astute not to suffer the appropriation of an appellant’s case by a shadow litigant. The inappropriateness of granting leave to Mr Windsor to appear for the appellant or joining him as a second appellant is informed by that concern, which only serves to vindicate the Tribunal’s finding that Dr Windsor had demonstrated diminished control over her autonomy to the extent that her capacity to fulfil her professional obligations was compromised.

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SCHEDULE

Particulars of amended complaint

The amended complaint set out three complaints against Dr Windsor, in the following terms. Person A is Mr Windsor:

COMPLAINT ONE

Has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder that detrimentally affects or is likely to detrimentally affect the practitioner’s capacity to practice the profession of medicine.

Background to Complaint 1

…

Particulars of Complaint 1

1. During the health interview on 6 September 2016, when Person A repeatedly told the practitioner not to say anything during the health interview, the practitioner largely complied and did not speak.

2. At the health interview Person A made statements including:

i. that there was a plot against Person A, the practitioner and other close family members;

ii. Person A believed there was a plot against him because of a web page about “Atlantian Genocide”;

iii. Person A provided a flyer to the interviewers about a web page;

iv. that his phones, the Council’s phones and the health interview room were all bugged;

v. that the people after Person A, the practitioner and other close family members were dangerous.

3. During the health interview the practitioner did not express disagreement with Person A’s statements set out at particular 2 above.

4. At the health interview, the practitioner stated that she agreed with Person A that her phone was bugged.

5. When Person A directed the practitioner to leave the health interview at a time when the interviewers had not completed their questioning, the practitioner complied and left the interview.

6. The practitioner failed, without reasonable excuse, to comply with a direction by the Council under section 145E of the National Law to undergo an examination by a specified health practitioner, Dr Anthony Samuels, scheduled for 16 September 2016.

Pursuant to section 145F of the National Law the practitioner’s failure to attend Dr Samuels’ examination is evidence that the practitioner does not have sufficient physical or mental capacity to practise medicine.

7. By letter dated 14 September 2016 the practitioner was informed by the Council that it would be convening proceedings under section 150 of the National Law on 23 September 2016 and that the proceedings would be recorded. On 22 September 2016, the practitioner was informed that Person A would not be able to attend the proceedings. The practitioner failed to appear before the s150 delegates on 23 September 2016 to be interviewed.

7a. By letter dated 22 September 2016 the practitioner wrote to the Council expressing her view that Person A:

a) held views as expressed to the health interview panel which “is not a belief he hold[s]. It is based on real events, real experience and real facts that can be proven”;

b) is neither paranoid nor “having paranoia”;

c) is “qualified and capable” of accurately assessing risks, “certainly more than a typical doctor”.

8. On 27 June 2017 the Council emailed the practitioner directly concerning her suspension. On 29 June 2017 Person A replied to the email by:

i. stating “Final Response: SCREW YOU!”;

ii. stating that the Council and its employees were on a “watch list”;

iii. telling the Council to view a conspiracy theory website;

iv. threatening that the receivers of the email should “enjoy your life while you still can!”, and

v. the practitioner failed to independently respond to the Council’s email.

9. On 3 August 2017, Person A communicated to the Commission by email, expressed to be on behalf of the practitioner, by:

i. making derogatory comments to the Commission‘s staff;

ii. espousing delusional, paranoid and persecutory beliefs;

iii. referring to conspiracy websites and conspiracies;

iv. stating that “I judge your role to be one of a criminal patsy, criminal accomplice or a criminal principal in the overriding criminal plot against our family…”and,

v. the practitioner did not independently respond to the Commission’s email.

10. On 3 August 2017 the Health Care Complaints Commission notified the practitioner directly by e-letter of proposed referral of her matter to the Director of Proceedings and the grounds for the referral. The e-letter also invited the practitioner to make submissions. Person A responded by email to the Commissioner on the same day stating, “Dear Criminals, No Submission. Bring It On!” and the practitioner did not independently respond to the Commission’s e-letter.

11. Particulars 1-10 (as amended) are relied upon to support a finding that the practitioner has Induced Delusional Disorder and/or another underlying mental health disorder which makes her vulnerable to paranoia and/or delusions.

COMPLAINT TWO

Is not competent to practice medicine within the meaning of section 139(a) of the National Law.

Background to Complaint 2

As for Complaint One.

Particulars of Complaint 2

1. The particulars of Complaint One are repeated and relied upon individually and cumulatively.

2. By reason of the particulars of Complaint One the practitioner has demonstrated and demonstrates:

a. a lack of mental capacity;

b. diminished control over her autonomy;

c. diminished insight into her professional obligations to regulatory authorities;

d. diminished insight into and/or capacity to respond to the adverse effects of her personal relationship with Person A to her professional obligations.

COMPLAINT THREE

Is not otherwise a suitable person to hold registration as a medical practitioner.

Background to Complaint 3

As for Complaint One.

Particulars of Complaint 3

1. The particulars of Complaint One and Two are repeated and relied upon individually and cumulatively.

Decision last updated: 10 June 2020