Clarke v New South Wales Nurses and Midwives’ Association (The Union)

On 9 February 2021 Schmidt AJ made the following orders, after hearing an application by South Eastern Sydney Local Health District against the present plaintiff for orders under the Vexatious Proceedings Act 2008 (NSW) against the present plaintiff:

Case numbered (xix) was Federal Circuit Court proceeding SYG3310/2018 - Charmain Daisy Clarke v Nursing and Midwifery Council of New South Wales, Nursing and Midwifery Board, New South Wales Nurses and Midwives Association and Violet Stojkova.

Cases numbered (x), (xiv), (xvii), (xviii) and (xx) named Julie Herrick as a defendant, and cases (ix), (xx) and (xxiii) named Susan Dale as a defendant.

By way of background, Ms Clarke is a nurse who was dismissed from her employment with the South Eastern Sydney Local Health District in 2015, and has since unsuccessfully brought numerous and frequent proceedings against the Health District, as well as its employees and solicitors. The matters that were not in issue in the proceedings before Schmidt AJ were summarised by her Honour as follows:

On 15 February 2022 the plaintiff filed a summons seeking the following orders:

The plaintiff has included in the material she has filed with this summons another summons which seeks the relief contained in paragraphs 3, 4 and 5 above. I infer, therefore, that those prayers constitute the substantive relief which the plaintiff seeks in the proceedings which she seeks leave to bring.

The plaintiff relies in support of the second summons on an affidavit sworn by her on 14 February 2022. That affidavit consisted only of seven paragraphs comprising annexures. The annexed documents deal with the plaintiff’s grievances arising out of the way she was dealt with in 2014 and 2015 partly, at least, because of complaints that she made against Julie Herrick and Susan Dale.

What is clear from those annexures is that the claim the plaintiff now seeks to make against the defendant is a reiteration of claims earlier made. In particular, the claims concern the same subject matter of the proceedings earlier brought against the Association.

I do not intend go into detail about what is contained in the various annexures to the plaintiff’s affidavit. Very considerable judicial time has been expended in dealing with great numbers of proceedings and applications within proceedings made by the plaintiff arising out of the same events in 2014 and 2015. The plaintiff simply refuses to accept that she is not entitled to litigate the same complaints. This is the third application under the Vexatious Proceedings Act in as many months: see Clarke v Adams [2021] NSWSC 1665 and Clarke v Nursing and Midwifery Council of New South Wales [2022] NSWSC 15.

The plaintiff litigated matters against the present defendant in the Federal Circuit Court proceedings, referred to at [2] above. The claims against the Association arose out of the representation the Association provided for the plaintiff before the Industrial Relations Commission in 2015. The Association moved successfully to have the proceedings against it summarily dismissed: Clarke v Nursing and Midwifery Council of New South Wales & Ors (No 2) [2019] FCCA 3035. The plaintiff then sought unsuccessfully to have those proceedings reopened: Clarke v Nursing and Midwifery Council of New South Wales & Ors (No.3) [2019] FCCA 3159.

The correspondence attached to the plaintiff’s affidavit suggest that the basis of her present complaint against the Association occurred immediately before the IRC proceedings and concern, specifically, the plaintiff’s issues with Ms Herrick and Ms Dale. Those matters fall well within the description of the “the subject matter of proceedings brought” in the proceedings identified in para [141] of Schmidt AJ’s judgment. The present claim is a further attempt to litigate the same matters.

Although the Summons refers to “Fraudulent Conduct/Misconduct”, the Civil Liability Act and “Trade Practices”, there is nothing in the affidavit in support that makes any reference to these matters, nor do the annexures provide any assistance.

In the circumstances, I am satisfied that the present application must be dismissed because the proposed proceedings are vexatious proceedings, and there is no prima facie ground for the proceedings.

Accordingly, I make the following orders: