Windsor v Health Care Complaints Commission (No 1)

[2020] NSWCA 16

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Windsor v Health Care Complaints Commission (No 1) [2020] NSWCA 16
Hearing dates:	12 February 2020
Date of orders:	19 February 2020
Decision date:	19 February 2020
Before:	Macfarlan JA; McCallum JA; Simpson AJA
Decision:	Notice of Motion dismissed with costs.
Catchwords:	APPEAL – whether power of attorney from party confers right to appear on behalf of the party – Notice of Motion dismissed
Legislation Cited:	Health Practitioner Regulation National Law (NSW)
Cases Cited:	Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230
Category:	Procedural and other rulings
Parties:	Gina Nicole Windsor (Appellant) Neil Stern Windsor (Applicant) Health Care Complaints Commission (First Respondent) Medical Council of New South Wales (Second Respondent) Civil and Administrative Tribunal of New South Wales (Third Respondent)
Representation:	Counsel: No appearance of Appellant Self-represented Applicant A Britt (First Respondent) K Sato (Sol) (Second Respondent)   Solicitors: No appearance of Appellant Self-represented Applicant Health Care Complaints Commission (First Respondent) Crown Solicitor’s Office (Second and Third Respondents)
File Number(s):	2019/335419
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Court of Appeal Date of Decision: 18 November 2019 Before: Barrett AJA File Number(s): 2019/335419

Judgment

1. THE COURT: By an Amended Notice of Motion filed on 18 December 2019 Mr Neil Windsor (who describes himself as Dr Windsor) (“the applicant”) sought to challenge a decision of Barrett AJA of 18 November 2019 refusing the applicant leave to appear for Dr Gina Windsor (“the appellant”) at the hearing of a Notice of Motion filed by the appellant on 11 November 2019. That Notice of Motion seeks expedition of the appeal and a stay of the decision appealed against, pending disposition of the appeal. On 12 February 2020 the Court dismissed the applicant’s Notice of Motion with costs, and reserved its reasons. These are the Court’s reasons for dismissing the Motion.

The decision the subject of appeal

2. The appellant appeals against a decision of the New South Wales Civil and Administrative Tribunal (“NCAT”) of 1 October 2019 cancelling the appellant’s registration as a general practitioner ([2019] NSWCATOD 149). The Tribunal found that the appellant was “not competent to practice medicine within the meaning of s 139(a) of the National Law” (the Health Practitioner Regulation National Law (NSW)) and that the appellant was “not otherwise a suitable person to hold registration as a medical practitioner” (at [36] and [57]). The Tribunal stated that the basis of its decision was the appellant’s “refusal to undergo psychiatric evaluation, which is reasonably required on account of her behaviour throughout the events leading to these proceedings” (at [59]) and that it had had regard to s 145F of the National Law, which concerns the consequences of a registered health practitioner failing to comply with a direction to the practitioner to undergo an examination.

3. The appeal is listed for hearing before this Court on 30 April 2020.

Barrett AJA’s decision

4. In his decision of 18 November 2019, Barrett AJA said that on the return before him of the appellant’s Notice of Motion for expedition and a stay, there was no appearance by the appellant, or by any lawyer representing her, but “Mr Neil Windsor, who has made it clear that he does not admit to being her husband, although he is so described in the NCAT decision, has sought leave to represent her on the hearing of the motion” (at [2]). His Honour stated that the applicant relied on a power of attorney, but further stated that “his authority is not the question. The question is, what is in the interests of justice for the due determination of the Notice of Motion?” (at [6]). His Honour refused leave for two main reasons. First, the applicant was “the only witness of fact put forward by [the appellant] in relation to” her motion for expedition and a stay (at [10]). Secondly, his Honour considered that the following reasons given by NCAT in its decision of 1 October 2019 for refusing leave for the applicant to appear before it were equally applicable to the hearing of the Motion before his Honour:

“38 Dr Windsor [the appellant] did not appear at any of the directions hearings leading to the second hearing. On most occasions, Mr Windsor [the applicant] 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.”

5. His Honour also considered that the following considerations referred to in Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230 at [70]-[87] supported a refusal of leave (at [12]):

“the complexity of the case, genuine difficulties of the unrepresented party, the unavailability of disciplinary measures to lay advocates, the lack of any duty to the Court on the part of such advocates, lack of protection of both the client and the opponent by adherence to accepted norms of in-court behaviour and, above all, the interests of justice”.

The challenge to Barrett AJA’s decision

6. The applicant’s Amended Notice of Motion was a 16 page discursive document containing much material of an irrelevant, redundant or impermissible character. An example is the prayer for an order that the Court:

“NOTE that the Commission, the Council and the Tribunal undertake that they comply with the stipulations in UCPR, UBCR and USCR in relation to their conduct in interacting with the opponent and the court” (Order 6).

“UBCR” was a reference to the Legal Profession Uniform Conduct (Barristers) Rules 2015 and “USCR” to the corresponding solicitors’ rules.

7. The nub of the Notice of Motion was however a prayer for an order setting aside Barrett AJA’s ruling that the “application for representation is refused” (Order 2).

8. In his submissions to this Court, the applicant emphasised that he claimed entitlement as of right to represent the appellant at the hearing of the appellant’s Notice of Motion by reason of the power of attorney to which Barrett AJA referred, and that he did not seek the Court’s leave. This argument was however plainly unsustainable because, as Barrett AJA said, the question was not one of the applicant’s authority to appear on behalf of the appellant, which was not in doubt, but whether as a matter of discretion the Court should depart from its usual rule that parties to proceedings may only appear by a lawyer if they choose not to appear in person. Without the Court’s leave, a party has no right to have an authorised (whether by power of attorney or otherwise) non-lawyer appear for him or her.

9. Generously to the applicant, the Court considered whether the applicant’s position would be improved if it treated his application as one for leave to appear for the appellant. On this basis the result is however the same, for the reasons given by Barrett AJA. Moreover, even if the Court were to treat the applicant’s application as a fresh application for leave to appear on behalf of the appellant on the appellant’s Notice of Motion, rather than a challenge to Barrett AJA’s decision, the outcome would again be the same, for the same reasons.

10. For these reasons, the Court considered that the applicant’s Notice of Motion should be dismissed with costs.

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Decision last updated: 19 February 2020