Sharmain Daisy Clarke v South East Sydney Health District (No 2)

1. [1]

   THE COURT: This is an application for leave to appeal brought by Ms Sharmain Daisy Clarke from a decision of Adamson J striking out a statement of claim and refusing leave to Ms Clarke to file a proposed amended statement of claim. Her Honour also dismissed the proceedings under Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1)(b).

2. [2]

   In light of the fact that these reasons are relatively long, and will be read by Ms Clarke, who is not legally qualified, and by a counsel to be appointed to give pro bono legal assistance, we provide the following overview.

3. [3]

   The hearing of the application for leave followed an unusual course. We have concluded that the complaints advanced by Ms Clarke as to the reasons of the primary judge are unfounded, and do not warrant a grant of leave. However, at least two matters fall into a different category. At the forefront of her draft notice of appeal were complaints that she had not been accorded natural justice, because (a) she was denied an adjournment, and (b) because the bundle of material provided to the primary judge by the respondent was deficient. For the reasons stated below, we reject the first complaint. However, the second falls into a different category. It is as well to address this immediately.

4. [4]

   Ms Clarke said, in her draft notice of appeal, and in her written submissions, and orally, that she had complained about this at the time. Indeed, by email dated 2 February 2018, after the primary judge had reserved her decision, Ms Clarke wrote to the respondent’s solicitor including the following:

5. [5]

   Ms Clarke had not provided evidence explaining the way in which the bundle provided to the primary judge by the respondent had been deficient. During the course of submissions in this Court, counsel for the respondent denied that there was any deficiency, in responding:

6. [6]

   This Court reserved, and granted leave to the parties to adduce further evidence of the communications supplied to the primary judge after her Honour had reserved. That occurred within the 24 hours specified. The parties were notified on the afternoon of Wednesday 10 October that the matter was listed for judgment the following morning. Later on Wednesday afternoon, the respondent wrote requesting that this Court delay delivering its judgment, stating:

7. [7]

   The Court acceded to the respondent’s request. On the following day, the respondent filed a notice of motion and supporting affidavit which, as foreshadowed, explained that there were documents missing from the folders supplied to the primary judge. It further explained that some pages had been so poorly copied that they were illegible. The affidavit sworn by the solicitor with carriage of the matter stated that it had been her intention to assist both Ms Clarke and the Court by providing the folders, and that at no time had it been intended to reduce or omit the material on which Ms Clarke relied. She also acknowledged that in light of the proposed grounds of appeal, she should have checked the alleged discrepancies earlier and in advance of the hearing of the application for leave, but had not done so.

8. [8]

   It is very much to be regretted that the omissions which were central to Ms Clarke’s written and oral submissions were denied when the application was heard, only to be acknowledged, belatedly, when steps were taken to confirm whether they were well-founded.

9. [9]

   On the other hand, it must also be acknowledged that even though the acknowledgement was belated, the respondent’s lawyers have ultimately, and in adhering to their overriding duty to the Court, explained the position.

10. [10]

    That background serves to explain the course the Court will take. There should plainly be a grant of leave extending to ground 4 of the notice of appeal.

11. [11]

    However, insofar as Ms Clarke’s summons seeks leave to appeal against matters determined against her by the primary judge on a basis that could not have been affected by the course of the hearing, we have concluded that the points are ill-founded. For the most part, they go to a want of jurisdiction. Leave to appeal on those grounds should be refused.

12. [12]

    Enough has been said to explain that this is an unusual case. We have also concluded that it is appropriate for there to be a limited further grant of pro bono assistance to Ms Clarke, as is sought by her in paragraph 4 of a notice of motion filed by her. That grant will be confined to providing assistance as to the drafting of a draft amended notice of appeal. If counsel is of the view that there are other grounds warranting an application for a grant of leave, such application may be made when the appeal is heard. The limitations upon the grant of pro bono legal assistance will make it plain that counsel is under no obligation to appear at the hearing (of course, there will be nothing preventing that occurring, if Ms Clarke and counsel are of the view that it should occur).

13. [13]

    In light of the limited grant of leave which we have ordered, there is no occasion to say anything more about the documents supplied to the primary judge. However, it is necessary to turn to the balance of Ms Clarke’s application, in order to explain why the grant of leave should not extend to it.

14. [14]

    Ms Clarke was a registered nurse who worked for South East Sydney Local Health District (SES Local Health District) from October 2011.

15. [15]

    Concerns were raised about Ms Clarke’s competence, which resulted in her suspension and subsequent dismissal on 5 May 2015. On 26 May 2015, an application for unfair dismissal in the Industrial Relations Commission (IRC) was filed. Ms Clarke attended a conciliation of the dispute on 7 July 2015, at the conclusion of which her legal representative informed the IRC that the matter had been finally resolved and that a deed would be prepared to reflect the settlement.

16. [16]

    Subsequently, Ms Clarke refused to execute the deed. The New South Wales Nurses and Midwives Association, which had appeared on her behalf, refused to act for her thereafter. The primary judge found that Ms Clarke had not taken any further steps in those proceedings, notwithstanding her contention that they had not been resolved and that her claim was, accordingly, extant. The respondents contended that the matter had been settled and that money had been paid to Ms Clarke pursuant to the settlement. Ms Clarke admitted that money had been paid to her bank account but contended that it had been reversed as she had not authorised receipt of the payment. To the extent that it is relevant, we accept Ms Clarke’s submission that during 2018 she has sent numerous e-mails and letters to the IRC seeking to re-agitate the issues in those proceedings. The primary judge is, however, correct, that no further steps have been taken by Ms Clarke in those proceedings.

17. [17]

    Ms Clarke commenced proceedings in the Supreme Court by statement of claim filed on 4 April 2017. The first named defendant was the Royal Hospital for Women and the second named defendant was Julie Herrick, who had been Ms Clarke’s supervisor. The Royal Hospital for Women was subsequently replaced by SES Local Health District as Ms Clarke’s employer in accordance with s 17 and Sch 1 of the Health Services Act 1997 (NSW).

18. [18]

    The respondents raised concerns about the pleading which resulted in directions being made for the service of a proposed amended pleading. Ms Clarke ultimately served on the respondents several further draft pleadings: the first was provided on 7 September 2017; the second was provided on 5 October 2017; the third was provided on 1 November 2017; and the fourth was provided on 20 December 2017.

19. [19]

    By notice of motion filed on 8 November 2017 Ms Clarke sought leave to amend her statement of claim in the form of the draft of 1 November 2017. At the hearing of her motion on 31 January 2018, the primary judge granted Ms Clarke leave to amend her notice of motion to seek leave to file an amended pleading in accordance with the draft provided on 20 December 2017.

20. [20]

    By notice of motion filed on 8 November 2017, the respondents sought orders dismissing the proceedings, in whole or in part, pursuant to UCPR, r 13.4(1)(b) and, in the alternative, to strike out the statement of claim, in whole or in part, pursuant to UCPR r 14.28(1)(b).

21. [21]

    The primary judge heard the applications on 31 January 2018. Her Honour reserved, and delivered judgment on 6 February 2018: Clarke v South East Sydney Local Health District [2018] NSWSC 66. Her Honour’s judgment gave close attention to each of the pleaded causes of action in the proposed amended pleading.

22. [22]

    In relation to Part B of the proposed amended pleading entitled “Anti-Discrimination Laws in Employment”, her Honour concluded that the pleading did not identify any tenable cause of action in respect of which the Supreme Court had jurisdiction. Her Honour pointed out that the Anti-Discrimination Act 1977 (NSW) provides for a procedure whereby a complaint can be made to which the alleged perpetrator is invited to respond. If the dispute cannot be resolved the complaint is referred to NCAT: Anti-Discrimination Act, ss 93A, 93B and 93C. If the complaint is substantiated, NCAT may make orders for the payment of up to $100,000: Anti-Discrimination Act, s 108. The Supreme Court has no such jurisdiction. Ms Clarke made a complaint which was referred to NCAT. The primary judge found that she did not pursue proceedings before NCAT. We accept Ms Clarke’s submission that the primary judge’s conclusion that she did not participate in the hearing before NCAT was an error, although her Honour can be forgiven for this minor factual error given the way the case was presented to her. In any event, we have concluded that the error was not a material error. Ms Clarke did participate in a hearing before Senior Member Scahill and the Appeal Panel: Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163; Clarke v South Eastern Sydney Local Health District [2017] NSWCATAD 81. More importantly, the primary judge concluded that Ms Clarke did not identify any cause of action arising from the alleged discrimination. It is to be emphasised that the proposed pleading did not seek orders in the nature of an appeal from the decision made by NCAT. Nor did Ms Clarke identify any basis on which any alleged failure by the IRC to take into account the principles of the Anti-Discrimination Act (an obligation imposed by s 169(1) of the Industrial Relations Act 1996 (NSW)) is actionable, either generally or in the Supreme Court. Her Honour pointed out that Ms Clarke had not identified any specific breach of the Government Sector Employment Act 2013 (NSW) or the Government Sector Employment (General) Rules 2014 (NSW).

23. [23]

    The primary judge pointed out that proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) must be brought in the Federal Court and, subject to limited exceptions not presently relevant, could not be brought in the Supreme Court: ADJR Act, s 9.

24. [24]

    Her Honour explained that Ms Clarke’s claim for damages for physical or psychological injuries, in so far as it is made against her employer, SES Local Health District, was not maintainable in the present circumstances by reason of provisions of the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW), which her Honour explained in detail. The primary judge could not discern any actionable claim or claim for prerogative or equitable relief arising from the claim for unfair dismissal.

25. [25]

    Her Honour next considered Part C of the proposed amended pleading which contained a reference to Part 7 of the Industrial Relations Act 1991 (NSW) (the 1991 Act) and Part 1A of the Civil Liability Act 2002 (NSW). Part C contains allegations that the SES Local Health District caused Ms Clarke to suffer injury for which she is entitled to compensation and damages. Ms Clarke also alleged that the placement of her name by SES Local Health District on a Service Check Register was not in accordance with “policy requirements”. Her Honour pointed out that it was difficult to discern from the allegations made what claim is alleged. The 1991 Act was repealed by s 408 of the Industrial Relations Act 1996 (NSW) with effect from 2 September 1996 and therefore could not be the source of rights for the relevant period.

26. [26]

    Her Honour explained that claim for damages against SES Local Health District was not maintainable for the reasons she had already given arising from the Workers Compensation Act and the Workplace Injury Management and Workers Compensation Act.

27. [27]

    Her Honour found that the allegation that the placement of the plaintiff’s name on the Service Check Register was not in accordance with policy requirements did not give rise to a claim for relief under s 69 of the Supreme Court Act 1970 (NSW) (if that is the alleged juridical basis) since this Court’s jurisdiction depends on there being an error of law. A failure to comply with policy requirements cannot, of itself, amount to an error of law.

28. [28]

    The primary judge next considered Part D of the proposed amended pleading. In that part Ms Clarke alleged that she was discriminated against because of an alleged disability. She called in aid the Anti-Discrimination Act and “federal legislation”, most likely the Disability Discrimination Act 1992 (Cth). Her Honour repeated her earlier conclusion that the only “remedy” conferred on a person who complains of a breach of the Anti-Discrimination Act is to have the matter referred to NCAT, which can provide a remedy if the complaint is substantiated. Again no claim in the nature of an appeal from any decision of NCAT was made. Alleged breaches of the Disability Discrimination Act fall within the definition of “unlawful discrimination” in s 3 of the Australian Human Rights Commission Act 1986 (Cth). A person complaining of unlawful discrimination can lodge a complaint with the Human Rights Commission. If the complaint is terminated by the President of the Human Rights Commission, an application can be made to the Federal Court or the Federal Circuit Court for relief.

29. [29]

    Her Honour found that while it may be possible that the acts alleged to constitute unlawful discrimination might make a dismissal unfair, the jurisdiction with respect to such claims did not apply to the Supreme Court.

30. [30]

    Her Honour next considered Part E of the proposed amended pleading entitled “Harassments”. That part of the pleading made various allegations about the behaviour of particular persons towards Ms Clarke which, if made out, might be said to amount to bullying and harassment. Ms Clarke contends that the conduct amounts to “misconduct” as defined in s 69 of the Government Sector Employment Act. The Government Sector Employment Act provides for allegations of misconduct to be investigated by the employer and, if made out, for disciplinary action to be imposed on those responsible. It does not otherwise provide a remedy for an employee who has been the victim of misconduct. Nor does it make such conduct actionable.

31. [31]

    Ms Clarke also alleged that SES Local Health District breached the Work Health and Safety Act 2011 (NSW) in various respects. Her Honour found that the duties imposed on employers by this legislation do not give rise to correlative private rights. Her Honour pointed out that remedies for workplace bullying are provided for in the Fair Work Act 2009 (Cth). However, agencies of State governments, such as SES Local Health District, are excluded from the definition of “constitutionally covered business” to which the provisions apply: Fair Work Act, s 789FD. In any event, only the Fair Work Commission has the power to grant such remedies. The Supreme Court has no jurisdiction under the Fair Work Act.

32. [32]

    Her Honour next considered Part F of the proposed amended pleading entitled “Defamation underlined by malice – Breach of duty of care and personal injury”. Her Honour rejected, for reasons she had already explained, claims under the ADJR Act and the Government Sector Employment Act. A separate claim under Division 2 of the Health Practitioner Regulation National Law 2009 (NSW) also gave rise to no arguable cause of action.

33. [33]

    The proposed claim in defamation was against a non-party to the original proceedings, the Nursing and Midwifery Council of NSW. The proposed amended pleading sought to join the Nursing and Midwifery Council of NSW to the proceedings.

34. [34]

    In relation to the pleading of defamation, her Honour found that Ms Clarke’s claim was not maintainable (without an extension of time) as the statement of claim was filed on 4 April 2017 and the matter complained of was, according to her proposed draft, published on 21 September 2015. The limitation period for defamation is one year after publication of the matter complained of: Limitation Act 1969 (NSW), s 14B. Her Honour found that it was open to Ms Clarke to seek an extension of time on the basis that it was not reasonable for her to have commenced an action within a year of the publication as she was, allegedly, unaware of the publication until 7 September 2017.

35. [35]

    Her Honour concluded that the draft pleading, other than the claim for defamation, did not disclose any maintainable cause of action. Not only was the pleading embarrassing, but it also did not reveal a claim known to the law or presently maintainable in this Court.

36. [36]

    Adamson J concluded that it would be futile to grant leave to Ms Clarke to amend her proposed pleading since, while the problems of form could potentially be rectified, the legal deficiencies in the claims alleged were irremediable.

37. [37]

    In these circumstances her Honour dismissed the whole of the proceedings, including the defamation claim against the Council which is, at least on its face, maintainable aside from the limitation issue.

38. [38]

    Her Honour found that if the proceedings were wholly dismissed Ms Clarke would not be prejudiced in respect of the defamation claim as the defamation claim was, subject to an order for extension, statute-barred. The power to extend time under s 56A of the Limitation Act includes a power to extend time for up to three years. Thus, there was no irremediable prejudice if the proceedings were dismissed. Her Honour found that there was prejudice to the respondents if the proceedings remained on foot in that they remained parties and continued to incur costs in proceedings where the only potentially viable claim had not been properly pleaded and was statute-barred.

39. [39]

    Ms Clarke’s summons seeking leave to appeal was filed on 6 August 2018. The seven grounds in Ms Clarke’s draft notice of appeal are as follows:

40. [40]

    On 3 September 2018 White JA refused an application by Ms Clarke for a referral to the pro bono panel for assistance: Sharmain Daisy Clarke v South Eastern Sydney Local Health District [2018] NSWCA 202.

41. [41]

    On 5 September 2018, Ms Clarke filed an additional motion in these proceedings. The only prayers for relief which were pressed before us were proposed order 8 which sought an extension of time to file her summons seeking leave to appeal and 4 which sought referral to the pro bono panel, but only if Ms Clarke’s application for leave to appeal was successful. We have addressed this earlier in these reasons.

42. [42]

    Ms Clarke’s written submissions did not address any legal error said to have been made by the primary judge but rather sought to re-agitate factual matters. The nature of the applicant’s case is that she was unfairly dismissed, that she was entitled to appeal against the decisions of NCAT, that her IRC proceedings have not been concluded, and that s 139 of the Industrial Relations Act 1996 (NSW) is engaged.

43. [43]

    Ms Clarke asserted that the matter should have been adjourned on the day it came before Adamson J. Ms Clarke also asserted that exhibits or annexures to an affidavit she had sworn on 1 November 2018 had been re-assembled by the respondents and that the exhibits or annexures in the Court book before Adamson J were, in an unidentified way, different in form from the affidavit she had sworn.

44. [44]

    In oral submissions Ms Clarke re-iterated the factual errors about her participation in the hearings of her claims before NCAT. Ms Clarke appeared to accept that she had not sought an adjournment from Adamson J, but submitted that she had been denied natural justice in the circumstances of the case as she was desperately unwell and, it may be inferred, the primary judge should have discerned that and adjourned the hearing. A related claim was made that a solicitor had accepted funds from her to appear before Adamson J but had not appeared, taking Ms Clarke by surprise. This was an additional ground for an adjournment, although Ms Clarke accepts that she did not seek an adjournment on that basis.

45. [45]

    We have addressed Ms Clarke’s submission that exhibits or annexures to an affidavit she had sworn on 1 November 2018 had been re-assembled by the respondents and that the exhibits or annexures in the Court book before Adamson J were different in form from the affidavit she had sworn earlier in these reasons.

Consideration

1. [46]

   Ms Clarke requires leave to appeal because the order appealed from was interlocutory: Supreme Court Act 1970 (NSW), s 101(2)(e).

2. [47]

   In The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26, Bathurst CJ said (at [13]) that:

3. [48]

   Ms Clarke has not sought to demonstrate that the reasons of Adamson J were incorrect for any specific reason. Whilst she asserts that a serious injustice has been done to her, her complaints do not identify any issues of principle, questions of public importance or circumstances making it reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable.

4. [49]

   As far as error in the judgment itself was concerned, Ms Clarke re-iterated on a number of occasions in her oral submissions that the primary judge found that she did not pursue proceedings before NCAT. We have earlier accepted Ms Clarke’s submission that the primary judge’s conclusion that she did not participate in the hearing before NCAT was an error, but have concluded that the error was not a material error. This is because nowhere in the proposed amended pleading is there any attempt to invoke the Court’s undoubted jurisdiction to review a decision of NCAT. The immaterial error of fact made by the primary judge provides no basis for a grant of leave to appeal.

5. [50]

   As far as the suggestion that the matter should have been adjourned on the day it came before Adamson J, we have concluded that Ms Clarke has not established, even arguably, that she was denied procedural fairness by the primary judge. At the outset of the hearing, the following exchange occurred:

6. [51]

   That is, the primary judge was told that Ms Clarke was appearing for herself and that a solicitor she may “need to get some advice from” was not on the record. Her Honour invited Ms Clarke to ask for an adjournment if the need arose.

7. [52]

   No different conclusion arises in relation to later exchanges on that day. Much later in the day Ms Clarke raised the question again:

8. [53]

   This is the only reference in the transcript to which we were taken where Ms Clarke raises the question of legal representation on that day. The highest the matter is put is that “I had representation prior to coming to court”. It is tolerably clear that Ms Clarke was not asserting that the lawyer she had named had agreed to appear in the proceedings before the primary judge.

9. [54]

   Finally, in a passage that counsel for the respondent, Ms Doust, very properly took us to the following exchange occurred:

10. [55]

    We have set out this lengthy passage to demonstrate that at no time did Ms seek an adjournment. It is clear that Ms Clarke told the primary judge that she had received some pro bono assistance in the seven months since the referral for such assistance was made by Walton J. Her Honour was also told that some continuing pro bono assistance was being provided to Ms Clarke about extant District Court proceedings concerning the same or related matters to those addressed by her proposed pleading. Ms Clarke has not demonstrated, even at the level of a reasonably arguable claim, that she was denied procedural fairness when she was not granted an adjournment which had not been sought by her, despite having been advised expressly that she could ask for an adjournment if she needed to do so.

11. [56]

    However, for the reasons given at the outset of these reasons, there is a sufficiently clear case of a denial of procedural fairness in relation to the documents provided to the primary judge to warrant a grant of leave confined to ground 4 of the draft notice of appeal.

12. [57]

    The decision of the primary judge about defamation and the effect of the Limitation Act was correct: Australian Securities and Investments Commission v Schlaepfer [2017] NSWCA 247. Whilst it is true that three years has now elapsed from the time of the making of the allegedly defamatory statement, that three year period had not elapsed at the time Adamson J made her decision. If Ms Clarke chose to challenge her Honour’s decision rather than, as her Honour found was open, commence a separate claim for defamation and seek an extension of time, that does not bespeak error in the primary judge’s decision. It may also be, on the basis of the exchange in the transcript noted above, that proceedings by Ms Clarke on the same or related matters remain extant in the District Court.

13. [58]

    Having considered the written and oral submissions advanced by Ms Clarke save in relation to proposed ground 4, we have concluded that the she has not demonstrated any issues of principle, questions of public importance or circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable.

14. [59]

    From the outset, Ms Clarke has complained about the documents provided to the primary judge by the respondent. Those complaints are shown to have been at least in part, well-founded (whether ultimately it is established that they would alter the orders made is another question, as to which neither party has been heard and we express no view). The respondent did not accept those claims until after the conclusion of the hearing of the application for leave. The need to file a summons seeking leave to appeal was to that extent brought about by the conduct on behalf of the State, although it should be clear from what has been said above that there is no suggestion in the evidence that the errors were intentional. The unusual circumstances of this case call for a special order as to costs. Irrespective of the outcome of the appeal, it would be wrong for Ms Clarke to bear any of the costs of the proceedings in this Court to date. It may be that, when the appeal is heard and determined, the unusual circumstances of this case will call for a further special costs order, but that is for the future.

15. [60]

    The Court makes the following orders:

    1. (1)

       (1) Grant leave to the respondent to rely upon the affidavit of Violet Stojkova sworn 11 October 2018.

    2. (2)

       (2) Extend time to file the summons seeking leave to appeal to 5 August 2018.

    3. (3)

       (3) Grant leave to appeal, confined to ground 4 of the draft notice of appeal.

    4. (4)

       (4) Direct the Registrar to refer the appellant to the Pro Bono Panel for the provision of pro bono legal assistance, the grant being confined to the provision of a draft notice of appeal which may extend to other proposed grounds of appeal.

    5. (5)

       (5) Direct that any application to expand the grant of leave be made at the hearing of the appeal.

    6. (6)

       (6) The appellant’s notice of motion dated 5 September 2018 is otherwise dismissed.

    7. (7)

       (7) The respondent to pay the appellant's costs of the leave application and the filing of notice of appeal.

    8. (8)

       (8) Exhibits returned.