Windsor v Health Care Complaints Commission (No 2)

[2020] NSWCA 164

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Windsor v Health Care Complaints Commission (No 2) [2020] NSWCA 164

Hearing dates:

On the papers

Decision date:

31 July 2020

Before:

Gleeson JA; Leeming JA; McCallum JA

Decision:

Dismiss the notice of motion dated 17 June 2020.

Catchwords:

APPEAL – application to set aside judgment on appeal – complaint that Court did not address affidavits of applicant – where applicants did not appear on hearing of appeal – where applicants sought to challenge intra-curial arrangements of Court of Appeal – application dismissed

Legislation Cited:

Supreme Court Act 1970 (NSW), ss 39, 75A

Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16

Cases Cited:

Rajski v Wood (1989) 18 NSWLR 512

Windsor v Health Care Complaints Commission (No 1) [2020] NSWCA 16

Windsor v Health Care Complaints Commission [2020] NSWCA 110

Category:

Principal judgment

Parties:

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

Representation:

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

Judgment

1. THE COURT: On 10 June 2012, the Court delivered judgment in this matter dismissing the appeal of Dr Gina Windsor against the decision of the NSW Civil and Administrative Tribunal to cancel her registration as a medical practitioner. The Court also dismissed a notice of motion filed 27 April 2020 by Dr Windsor and her husband, Mr Neil Windsor, seeking a variety of relief, including that leave be granted to Mr Windsor to be joined as second appellant. The Court ordered the appellant, Dr Windsor, to pay the first and second respondents’ costs of the proceedings in this Court: Windsor v Health Care Complaints Commission [2020] NSWCA 110 (the Appeal Judgment).

2. By notice of motion dated 17 June 2020, Dr Windsor and Mr Windsor, who describes himself as Dr Neil Stern Windsor (together “the applicants”), seek to set aside the Court’s orders made on 10 June 2020, relying upon Uniform Civil Procedure Rules 2005 (NSW), rr 36.15 and 36.16. The motion also seeks other relief to which reference is made below. The motion is not signed by Dr Windsor. It is signed by Mr Windsor stating that he holds a power of attorney from Dr Windsor.

3. On 6 July 2020, the Registrar made orders that the applicants file and serve any submissions in support of the motion by 13 July 2020. No submissions were filed by that date. Having considered the affidavit of Mr Windsor dated 22 June 2020 in support of the motion, the Court is satisfied that the application may be disposed of without seeking a response from the first and second respondents and without a further hearing.

4. The basis on which the applicants seek to set aside the Appeal Judgment is that the Court determined the appeal “by primarily relying upon the submissions, affidavit material and court books filed by the respondents, but without the 10 NSW affidavits which had been duly filed and served to the respondents and emailed to the Court as of 29 April 2020”. This complaint is without merit.

5. Neither Dr Windsor nor Mr Windsor appeared on the hearing of the appeal on 30 April 2020, despite the audio visual and telephone login contact details having been provided to them prior to the hearing. No application was made by either of them to rely upon any of the “10 NSW affidavits” referred to in the motion, being affidavits sworn by Mr Windsor. Accordingly, there was no occasion for the Court to consider their relevance on the appeal or, if sought to be relied upon as additional evidence on appeal, whether such evidence should be admitted: Supreme Court Act 1970 (NSW), s 75A.

6. In any event, none of the ten affidavits of Mr Windsor were relevant to the determination of the issues raised on appeal. It is sufficient to note the following:

1. the affidavit of 7 November 2019 related to Dr Windsor’s application for expedition of the appeal and for a stay. That application was dismissed initially by Barrett AJA on 18 November 2019 and subsequently by the Court on 12 February 2020 on review of his Honour’s decision: Windsor v Health Care Complaints Commission (No 1) [2020] NSWCA 16;

2. the affidavit of 25 February 2020 styled “Summary Judgment” did no more than assert Mr Windsor’s belief that the respondents had no arguable case against the orders sought on appeal and there should be summary judgment in Dr Windsor’s favour setting aside the Tribunal’s decision. That contention was addressed and rejected in the Court’s reasons delivered on 10 June 2020: see Appeal Judgment [4]-[5];

3. each of the affidavits dated 17 March, 27 March, 31 March, 6 April, 8 April, 17 April and 22 April 2020 contained material of an irrelevant nature, unrelated to the merits of Dr Windsor’s appeal. No point would be served in referring to the contents of these affidavits;

4. the affidavit of 28 April 2020 contained no more than a re-statement of Dr Windsor’s written submissions on appeal. No leave was sought or obtained by Dr Windsor to rely upon additional written submissions.

7. Paragraph 3 of the motion seeks to reopen order 2 made on 10 June 2020 dismissing the applicants’ notice of motion filed 27 April 2020 for the reasons given at [135]-[139] of the Appeal Judgment. No ground has been advanced to reopen this decision. Insofar as Mr Windsor referred to his affidavits dated 7 May 2020 styled “The God in Creation” and 2 June 2020 styled “The God’s White Book”, and seven folders of documents styled “The God’s White Book” delivered to the registry after judgment was reserved on 30 April 2020, the Court ignored these affidavits and material as leave to file them was neither sought nor granted: Appeal Judgment [140].

8. Paragraph 2 of the motion seeks an order authorising “the prosecution”, which may be taken to be a reference to Dr Windsor and Mr Windsor, to view and inspect all material filed and submitted by the respondents and relevant records of the lower court and this Court “to identify proceeds of crime and to verify the real status of the proceedings, including determinations not notified to the prosecution”. The relief sought is misconceived. The status of these proceedings is not in doubt – the Court delivered its reasons for judgment on the appeal on 10 June 2020. The allusion in par 2 to “proceeds of crime” is meaningless.

9. One further matter should be mentioned. Mr Windsor asserted in his affidavit of 22 June 2020 that the motion is addressed directly to the Chief Justice and should be dealt with “in the first instance” by the Chief Justice. He stated that he regards any other determination as a “potential perversion in the prevailing perverting context” (par 4). This contention is misconceived.

10. Section 39(1) of the Supreme Court Act 1970 (NSW) relevantly provides:

(1)   Intra-curial arrangements for the transaction by the Judges of Appeal of the business of the Court of Appeal shall be made by the President of the Court of Appeal with the concurrence of the Chief Justice.

11. In Rajski v Wood (1989) 18 NSWLR 512, Hope AJA said at 526:

… it is in my opinion not open to a litigant to institute proceedings in the court to challenge the right or power of a particular judge to hear and determine a case to which he, the litigant, is a party. There is no difference in this regard whether the assignment of the judge to the case has been made pursuant to s 39, or pursuant to the inherent power of the court. In neither case can the litigant challenge the assignment, and proceedings to make such a challenge disclose no reasonable cause of action.

12. Priestley JA agreed with Hope AJA, noting at 523, that there was nothing in s 39 of the Supreme Court Act or otherwise in the law of New South Wales which suggests that it is open to a litigant to make a challenge, by further litigation within the Court, to the administrative arrangements within the Court by which the business of the Court is allocated amongst its judges.

13. Thus, Mr Windsor cannot challenge the right or power of a particular judge or judges to hear and determine a case to which he, as an applicant on the present motion, is a party.

14. There being no basis to set aside the Appeal Judgment, the Court orders that:

1. Dismiss the notice of motion dated 17 June 2020.

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Amendments

03 August 2020 - Amend Catchwords

Decision last updated: 03 August 2020