South Eastern Sydney Local Health District v Clarke

1. [1]

   When these proceedings were commenced the South Eastern Sydney Local Area Health District and the Nursing and Midwifery Council of New South Wales sought orders under s 8 of the Vexatious Proceedings Act 2008 (NSW) against Ms Clarke, formerly Ms Naicker, prohibiting her from instituting further proceedings in New South Wales without leave and staying proceedings she had already instituted.

2. [2]

   Their case was that the orders had to be made, given that Ms Clarke had frequently instituted and conducted vexatious proceedings. That being established by the large number of proceedings which Ms Clarke, a nurse dismissed from her employment with the Health District in 2015, has since unsuccessfully brought against the Health District, its employees and solicitors, as well as against the Council and others, including those who have treated her for various episodes of ill health which she has suffered.

3. [3]

   During the course of the hearing the Health District and Council refined the orders pressed to the subject matters of the proceedings on which their case was advanced, consistently with the approach discussed in Viavattene v Attorney General (NSW) [2015] NSWCA 44.

4. [4]

   Their case relied on the affidavit evidence of the solicitor Ms Faunt, annexed to which were various decisions, as well as documents which Ms Clarke had filed in the proceedings on which the case was advanced. Ms Clarke also tendered many documents.

5. [5]

   While Ms Clarke has had legal assistance at various times, she was unrepresented when she defended the orders sought at the hearing. She relied on affidavits to which were annexed documents concerning matters which had become the subject of various proceedings she has pursued over the years since her dismissal from the Health District’s employment. They include complaints which she has repeatedly made about matters such as events which occurred during and after her employment, ill health that she has suffered and treatment which she has received from time to time from various health professionals.

6. [6]

   Ms Clarke’s written and oral submissions were extensive. There she sought to explain, amongst many other things, why she had not challenged judgments and decisions which she considered had been wrongly decided on appeal and that she had never intended to be vexatious in the course she has pursued in the various litigation she has conducted.

7. [7]

   Ms Clarke’s explanations included her lack of understanding of various legal processes which she had set in motion; occasions when she had failed to lead evidence which would have supported her case; ill health which had prevented her from pursuing her proceedings adequately; her failures to appeal decisions which went against her because of her lack of understanding of appellate and other processes; and her beliefs as to the various misconduct in which the Health District, its employees and solicitors and the Council and others had engaged.

8. [8]

   While Ms Clarke’s submissions about the many and varied matters which she advanced cast some light on the litigious course which she has so unsuccessfully pursued over the years, her explanations could not preclude the conclusion that the orders pressed must be made, confined as they finally were. To the contrary, the case she advanced reinforced that conclusion, as did the course which Ms Clarke pursued in these proceedings.

9. [9]

   In August 2020 Harrison J listed the matter for hearing in November, refusing Ms Clarke’s application for further referral for pro bono legal assistance and staying the hearing of her cross summons until further order: South Eastern Sydney Local Health District v Clarke [2020] NSWSC 1155. It appears that the cross summons had not to that point been filed, but arose for his Honour’s consideration when directions for the conduct of the hearing had to be given. His Honour so concluded because, he explained: “My anticipation, having sought her assistance on this question, is that Ms Clarke wishes in that context to agitate some, if not all, of the concerns that appear to have spawned the many proceedings about which the plaintiff presently complains.”: at [7].

10. [10]

    Despite this Ms Clarke later filed a motion by which she sought similar relief. After that motion was also stayed and judgment was reserved, she served a number of further versions of the cross summons which she wishes to pursue and sent those documents, as well as further submissions and other documents which she had not been given leave to file or send, to my Associate.

11. [11]

    The result was that I ordered that Ms Clarke not file any further documents in the proceedings, without the prior leave of the Court, sought by motion supported by affidavit. She has since sought such leave.

12. [12]

    In the result, for reasons which follow, I am satisfied that the orders sought must be made.

Reasons for Ms Clarke’s unsuccessful applications

1. [13]

   It is convenient first to give reasons for my refusal of the applications which Ms Clarke made during the course of the hearing.

2. [14]

   When Harrison J was informed that the matter was ready to proceed the Local Health District and Council were ordered to file and serve their evidence on or before 23 September 2020, Ms Clarke to file and serve her evidence on or before 6 November 2020 and the matter was listed for hearing on 16 and 17 November 2020.

3. [15]

   By her October 2020 motion Ms Clarke sought orders giving her leave to issue subpoenas to numerous people whose evidence she had not served, as well as orders to:

4. [16]

   Why Ms Clarke sought to issue the subpoenas or what evidence she wanted to call from the persons she identified was not explained, but her supporting affidavit annexed numerous documents, including judgments which she sought to have set aside, revoked, amended or reviewed.

5. [17]

   Ms Clarke said that she had served the motion and informed those who she sought to subpoena that she would seek to have it heard at the November hearing, having named them as respondents to the motion, but that she had not served on them either her affidavit, or the documents she relied on. Those people included parties to proceedings Ms Clarke had unsuccessfully brought, on which the Health Service and Council relied to advance their case in which judgments had been given against her, which she sought to have set aside.

6. [18]

   For example, included were Ms Dale and Ms Herrick who Ms Clarke had cross examined in the District Court in 2020 in proceedings in which she had failed to establish that they had assaulted her during her employment, Curtis DCJ preferring their evidence over that which she had given: Clarke v Dale (District Court (NSW), 8 October 2020, unrep) and Clarke v Herrick (District Court (NSW), 8 October 2020, unrep).

7. [19]

   From her submissions it emerged that Ms Clarke’s position was like that which she took before Harrison J. Essentially, she wanted to re-agitate concerns which she had unsuccessfully pursued in the many proceedings to which her cross summons and the motion were directed. That the orders Ms Clarke sought in relation to the judgments she identified were within the Court’s power was not apparent, but that did not need then to be decided. Ms Clarke accepted that the orders she so sought were similar to those sought in the cross summons which Harrison J had dealt with.

8. [20]

   Ms Clarke’s application to have her motion heard before the summons was dealt with thus had to be refused, given that it was apparent that she was thereby seeking to circumvent the orders which Harrison J had made.

9. [21]

   Like Harrison J, I was satisfied that the motion could not then justly be heard and that the hearing of the summons had to proceed. That course could not be diverted by Ms Clarke’s desire to re-litigate the many earlier cases in which she had not succeeded. It followed that the leave sought to issue the proposed subpoenas could also not be granted.

10. [22]

    When later tendering her evidence, however, Ms Clarke again pressed for leave to issue the subpoenas, which she accepted would have required an adjournment of the hearing, if granted. That application was also opposed and refused.

11. [23]

    It is pertinent to note that the orders pressed were:

12. [24]

    I was well satisfied that justice could simply not permit the course which Ms Clarke still wished to pursue. It was apparent that she passionately believes that the claims she has advanced in her various proceedings have merit and ought to have succeeded. Ms Clarke also considers that she has never acted vexatiously, nor has she intended to abuse any court process despite the course she has pursued, even in these proceedings.

13. [25]

    Ms Clarke’s beliefs could not in these proceedings justify her being permitted to re-litigate the merits of her various unsuccessful claims by granting her leave to issue the subpoenas which she wished to pursue. That course was simply irrelevant to what arose to be decided on the application.

14. [26]

    Ms Clarke next sought to call oral evidence from another group of people who she had not dealt with in her motion, only one of whom she claimed to have made any arrangements with, to give oral evidence at the hearing. Those she wished to call included not only treating medical practitioners and those who had given reports about her, but practitioners against whom she has commenced proceedings for alleged medical negligence.

15. [27]

    To grant her this leave would also have necessitated an adjournment of the hearing and so was also opposed and refused.

16. [28]

    Ms Clarke had given no prior notice or explanation of the purpose for which she wished to call evidence from these people, or how their evidence could advance her case. Nor did her submissions establish that their evidence was relevant to what arose to be decided.

17. [29]

    Ms Clarke undoubtedly faced challenges, appearing as she did unrepresented, although she has had legal assistance in the past, including by way of pro bono assistance. But still the Court has to make orders for the orderly conduct of the proceedings in accordance with the requirements of the Civil Procedure Act 2005 (NSW), which by s 56 specifies the overriding purpose to which the Court must give effect to be the just, quick and cheap resolution of the real issues in the proceedings. The Court also has to act in accordance with the dictates of justice, taking into account the matters specified in s 58(2) and bearing in mind the objects of case management specified in s 57.

18. [30]

    Harrison J’s orders sought to ensure that these proceedings were not conducted by any party by ambush or surprise. Thus the parties were ordered to file and serve the evidence on which they wished to rely, before the hearing. Ms Clarke had not given any notice as to what evidence she expected this further group of people could give, nor did she establish that they could give any relevant evidence.

19. [31]

    Ms Clarke’s submissions confirmed that justice simply could not permit such late leave to lead oral evidence from this further group of people to be granted, notwithstanding the difficulties which she described that her pursuit of various litigation had given rise to, including the serious ill health which she claims she has suffered.

The issues

1. [32]

   What was not in issue included that:

   1. (1)

      Ms Clarke was trained as a nurse in South Africa, registered as a nurse in Australia in 2003 and then worked as a nurse at hospitals in Sydney, including at the Royal Hospital for Women, where her employment was terminated in 2015.

   2. (2)

      The result of complaints made about Ms Clarke eventuated in the imposition of conditions on her registration under the Health Practitioner Regulation National Law 2009 (NSW). Ms Clarke was required to undergo a health assessment with the eventual result that she has been prevented from working as a registered nurse, a matter of ongoing complaint, including in these proceedings.

   3. (3)

      Ms Clarke’s appeal against the imposition of such conditions and requirements was dismissed: Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163. There was no appeal from that decision, but in 2020 Ms Clarke lodged an application for extension of time. She also later pursued other applications in relation to her registration, including finally by the orders sought in her October 2020 motion in these proceedings, by which she sought to have this decision reviewed.

   4. (4)

      As at March 2020 the condition that Ms Clarke not practise remained in place: Clarke v Nursing and Midwifery Council of New South Wales [2020] NSWCATOD 58 at [12]. In those proceedings she had also sought to have the 2017 decision reviewed, but that application was found to be misconceived and thus summarily dismissed, the 2017 judgment being a final decision not affected by jurisdictional error: at [57]-[62].

   5. (5)

      Ms Clarke has a lengthy history of other litigation relating to her former employment in proceedings she has brought, as well as those brought on her behalf by the New South Wales Nurses and Midwives' Association, including before the New South Wales Industrial Relations Commission and the Fair Work Commission.

   6. (6)

      Ms Clarke has brought proceedings arising out of her employment and nursing registration against the Local Health District, its employees and solicitors and the Council and others in the Civil and Administrative Tribunal, the Local Court, the District Court, this Court, the Court of Appeal, the High Court, the Federal Circuit Court, the Federal Court, the Australian Human Rights Commission and the Anti-Discrimination Board. Some of these proceedings are still on foot.

   7. (7)

      In 2016 and again recently, Ms Clarke has also pursued reports she has made to ICAC about various alleged misconduct, which it appears ICAC has not acted on. She has also pursued various complaints to other bodies.

2. [33]

   In issue between the parties was whether the Local Health District and Council had met the onus which fell upon them under the Act to make out their case that:

   1. (1)

      Ms Clarke has frequently instituted or conducted proceedings in Australia: s 8(1);

   2. (2)

      those proceedings were vexatious: s 6;

   3. (3)

      the Court should exercise its discretion under s 8(7) to:

3. [34]

   What lies in issue must be resolved in light of the purpose of the legislative scheme discussed in Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [56] to be to give the Court the power to make orders "to shield other litigants from harassment and to protect the Court itself from the expense, burden and inconvenience of baseless and repetitious suits”.

The parties’ cases

1. [35]

   The Health Service and Council relied on the affidavit evidence of Ms Faunt to establish the nature, frequency and multiplicity of proceedings which Ms Clarke has brought; the common parties to those proceedings; their form and subject matter; and the relevant findings and views of the judicial and other officers who determined those proceedings, to establish that they were vexatious proceedings as defined in s 6 of the Act.

2. [36]

   They contended that given the failure of the majority of the multiple proceedings which Ms Clarke has instituted against the same parties out of similar facts; the serious assertions of impropriety and misconduct which she so unsuccessfully pursued; and her persistence in seeking to reopen orders and re-agitate matters decided, it would be concluded that the evidence established:

3. [37]

   Ms Clarke relied on her affidavits and voluminous documents to advance her case that she had never sought to be vexatious, but had sought only to exercise her rights, as she was entitled to do. Further, that she had suffered a psychological injury in 2015 as the result of the “foul and discriminatory” conduct of the Area Health District and the Council, which had been exacerbated by the actions of the Area Health District and its employees. As a result she was hospitalised for a period in 2019.

4. [38]

   By her first written submissions Ms Clarke raised 85 questions which she said had not been answered in the proceedings she had brought. They began with questions about why she had been denied a return to her pre-injury duties in December 2014; about the operation of the Workplace Injury Management and Workers Compensation Act 1988 (NSW); and the Health Service’s alleged failures to implement its own policies in relation to safe practice and to investigate her bullying and harassment claims.

5. [39]

   Ms Clarke also raised questions regarding the alleged conduct of various of the Health Service’s employees; how certain proceedings were conducted; what was said by various identified persons; how a deed had come to be executed; the motive for various actions taken by the Health Service; the state of her employment records; various arguments she had advanced in various proceedings; documents which had been provided in answer to various subpoenas; information on which the Council had acted; the transparency and fairness of various processes; and the impact of decisions made upon her health.

6. [40]

   Ms Clarke’s second written submission took the form of a defence which commented on the affidavit Ms Faunt had sworn and the documents annexed. Amongst other things Ms Clarke submitted that because she had commenced proceedings against Ms Faunt, she was in breach of her ethical and professional obligations in acting for the Health District and Council in these proceedings, with the result that these proceedings should be dismissed with a costs order in her favour.

7. [41]

   Ms Clarke also gave an outline of her training, education, work experience and how various employment came to be terminated and the “foul and discriminatory conduct” which she had been subjected to, which had resulted in proceedings which she had brought in the Federal jurisdiction, amongst other things for breaches of privacy, human rights, the Racial Discrimination Act 1975 (Cth), the Disability Discrimination Act 1992 (Cth), the Health Practitioners Regulation National Law and the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

8. [42]

   Ms Clarke also explained that she had commenced multiple proceedings because in the day to day conduct of certain proceedings she had pursued between August 2016 and May 2019 she had found fraudulent conduct, misconduct and deceptive conduct.

9. [43]

   Ms Clarke also referred to various alleged criminal conduct and attempts to pervert the course of justice which she said she had pursued in a statement of claim filed in June 2020. She submitted that the multiple proceedings she had commenced and appeals she had pursued could not be deemed frivolous or vexatious, even though she had articulated “no new story” in the matters she had so pursued.

10. [44]

    Ms Clarke also explained the medical negligence claims she had instituted as the result of a wrong diagnosis and claimed incarceration, at a time when she was suffering a neurological deficit.

11. [45]

    Ms Clarke also complained about delays in prosecuting these proceedings, which she claimed had been designed to embarrass or frustrate her and involved a breach of the Solicitors Conduct Rules 2015 (NSW).

12. [46]

    Ms Clarke made various observations about developments in proceedings she had brought, to support the orders sought in her motion in relation to the decisions which she seeks to challenge and claims which she wished to advance in other proceedings on foot, which are unnecessary to explain.

13. [47]

    Ms Clarke’s case was that because she had received pro bono assistance in some of her District Court proceedings, they could not be found to have been vexatious. She also relied on various treatments she had claimed to have received to resist the making of the orders sought.

14. [48]

    From paragraph 64 of these submissions, Ms Clarke outlined “quantum’s” which she claimed she was owed by the Area Health Service, which shed some light on the claims she has to date unsuccessfully pursued. In short summary they related to alleged bullying, harassment and assault in 2013 and 2014; for the discriminatory actions of Ms Dale; for claimed “foul and discriminatory conduct” between August and October 2015; for breaches of her employment contract in 2015; for the effect of allegations of incompetency on her employment by third parties in 2015; for negligence of the Health Service’s employees amounting to criminal conduct between 2013 and September 2015; for loss of salary for claimed breaches of industrial instruments between 2014 and 2015; for unconscionable dealings and interference with witnesses in August 2007; for breach of contract; for breach of the State Records Act 1998 (NSW) between April 2003 and October 2008 and October 2011 and May 2015; for the use of fraudulent materials in proceedings in the Industrial Relations Commission in 2015; in respect of unconscionable dealing, undue influence, fraudulent and negligent representation in relation to a deed of release signed by Health Service employees; in respect of a strike pay dispute; in respect of a dispute not subject to conciliation under the Industrial Relations Act 1996 (NSW), because it has been dismissed by the Industrial Relations Commission; for negligence amounting to criminal conduct, by denying her earning any remuneration in her area of expertise; for a third breach of contract in October 2015; for issues flowing from the denial of the opportunity to complete her Masters in Public Health; for breach of privacy in August 2014; for accessing her bank account details in September 2015 without consent; for accessing her tax file details without consent and falsifying her 2015-2016 tax return; for fallacious statements made in proceedings in the Fair Work Commission in September 2016; and for unfounded and fraudulent statements made in allegations advanced in mandatory notifications made under the Health Practitioners Regulation National Law.

15. [49]

    From paragraph 89 Ms Clarke claimed that the Council also owed her a “quantum”. In summary this was for procedural unfairness in relation to mandatory notifications made under the Health Practitioner Regulation National Law; for breach of the requirement that complainants be dealt with expeditiously; for breach of the courses of action available to the Council under s 145B of this legislative scheme; for how she was denied the opportunity to attend a performance assessment in December 2015, with the assessment then delayed until January 2017, with adverse consequences for her return to her occupation; in respect of discovery of documents; for breach of subpoenas issued in the District Court; for expunging statements from the National Register in 2017; under various identified provisions of the Health Practitioners Regulation National Law; for unconscionable dealing, undue influence and fraudulent misrepresentation in respect of her registration; for events on 22 May 2018 when the Council had a typed out document for her to sign, which was invalid, because she was mistaken about what she was signing; for breaches of applicable privacy legislation in March 2019; for specified breaches of the Crimes Act 1900 (NSW) and the State Records Act; and for negligence.

16. [50]

    In her final oral and written submissions Ms Clarke reiterated many of these submissions in considerable further detail.

17. [51]

    In her December 2020 submissions Ms Clarke submitted that matters raised by way of Ms Faunt’s affidavits were irrelevant and involved misconduct, relying on Guss v Law Institute of Victoria Ltd [2006] VSCA 88; that contrary to the requirements of r 35.3 of the Uniform Civil Procedure Rules (2005) NSW, Ms Faunt did not have the necessary knowledge of the matters about which she deposed; that the affidavit was defective and irrelevant and contained false statements, with the result that Ms Faunt’s affidavit should be rejected; and that the initiating summons was invalid.

18. [52]

    Ms Clarke also referred to directions given by Harrison J about the filing and service of evidence and complained about delay in the prosecution of the proceedings. She submitted that in the result, the proceedings should be dismissed on grounds of lack and denial of efficient use of available judicial and administrative resources, that being what the dictates of justice required in the circumstances, given ss 57 and 58 of the Civil Procedure Act.

19. [53]

    In the result Ms Clarke submitted that the plaintiffs had failed to establish that she was a frivolous and vexatious litigant and were not entitled to the orders sought.

20. [54]

    But Ms Clarke accepted that after her dismissal from her employment she had pursued multiple proceedings and that:

21. [55]

    In these submissions Ms Clarke again explained the “quantums” which she claimed the Health District, Council and others owed her. In conclusion she submitted:

22. [56]

    The Health District and Council’s position was while they proceeded on the amended summons filed in March 2020, it was the confined November 2020 draft orders which they pressed. Neither that nor the matters raised by Ms Clarke legitimately put in question the validity of the summons or the competency of the proceedings and that the evidence and Ms Clarke’s conduct in these proceedings will established their case.

23. [57]

    In a written response, to which the Health District and Council did not object, Ms Clarke in short reiterated her claims about the injuries and damages which the Health District and Council had caused her; her intention to pursue the orders she had sought in her cross summons and motion in relation to other proceedings by an amended cross summons; the various complaints which she had unsuccessfully pursued in such proceedings; and the submissions she had earlier made, including about Ms Faunt and the conduct of the proceedings, which on her case had been knowingly and wrongfully brought against her.

Has Ms Clarke frequently instituted or conducted vexatious proceedings?

1. [58]

   I am satisfied that Ms Clarke’s complaints about the initiation and pursuit of these proceedings and Ms Faunt’s evidence have no proper basis. Further, that the evidence, as well as the case which Ms Clarke herself advanced, well establish that she has frequently instituted and conducted vexatious proceedings, as that term is defined in s 6 of the Vexatious Proceedings Act.

2. [59]

   In fact, Ms Clarke’s conduct in these proceedings establishes that she is intent on pursuing that course.

3. [60]

   Under s 8 of the Vexatious Proceedings Act the Court is empowered to make a vexatious proceedings order if satisfied on the evidence that the person in question “has frequently instituted or conducted vexatious proceedings in Australia”. The terms “institute” and “proceedings” are widely defined in s 4, capturing the proceedings which Ms Clarke has brought in the various Courts and Tribunals in which she has pursued in her many complaints:

4. [61]

   A reference to “instituting proceedings” also includes a reference to instituting proceedings generally, in relation to a particular matter, against or in relation to a particular person and in a particular court or tribunal: s 5(2). On the evidence the proceedings relied on were instituted by Ms Clarke, although some applications were brought by the defendants.

5. [62]

   The term “frequently” is not defined, but it is a relative term: Jones v Cusack [1992] HCA 40; (1992) 109 ALR 313 at [14] discussed in Teoh at [46]-[48]. On the evidence I will discuss, there can simply be no question that Ms Clarke has frequently instituted proceedings in which, as she herself explained, she articulated no new story, but without success.

6. [63]

   “Vexatious proceedings” are defined in s 6 of the Vexatious Proceedings Act to include:

7. [64]

   A pattern of repeated applications within a limited period of time may be an important consideration in determining whether proceedings are vexatious, “particularly where a litigant repeatedly challenges a decision in a manner that demonstrates an unwillingness or inability to accept that the challenge has been rejected and that there are no grounds for further challenges”: Teoh at [49]. That has been established by the course Ms Clarke has pursued over time, including by the cross summons and motions she is intent on pursuing in these proceedings.

8. [65]

   The views of the judicial officers who resolved the proceedings may be taken into account in determining whether the definition is satisfied, but they will not be determinative: Teoh at [50] and [52]. Further, proceedings can involve an abuse of process, regardless of whether the person instituting or conducting them intends to abuse the court's process. Vexatious proceedings can also be instituted or pursued without reasonable ground, regardless of whether the party realises that they lack any reasonable basis: Teoh at [55].

9. [66]

   That is the situation which has been established in Ms Clarke’s case. Her repeated submission that she did not intend to pursue vexatious proceedings, despite having pursued no new story in what she has so variously and repeatedly advanced, does not preclude the conclusion that what she did has resulted in her pursuit of proceedings which involved an abuse of process, caused repeated detriment to named defendants and were instituted and/or pursued without reasonable grounds.

10. [67]

    The evidence well establishes how repeatedly and frequently Ms Clarke has unsuccessfully pursued her beliefs in the proceedings she has brought regarding her various claimed mistreatment and the other misconduct which she has repeatedly alleged against others with whom she has worked, the Health District, the Council and others. Despite all the proceedings she has pursued, Ms Clarke has never yet established any of her claims on their merits.

11. [68]

    Despite this lack of success and the pursuit of these proceedings against her, the evidence establishes that yet again in late 2020 Ms Clarke commenced even further proceedings in the District Court in which she seeks to pursue the same or similar claims against the Health Service and its employees, which she has failed to establish in earlier cases. Even in these proceedings, she seeks to revisit much of her unsuccessful litigation by way of her cross summons and motions.

12. [69]

    I am thus well satisfied that there can be no question that Ms Clarke has frequently instituted and conducted vexatious proceedings in Australia. The Court’s power to make the orders sought is thus enlivened and must be exercised.

13. [70]

    It is also well apparent from the course which Ms Clarke has pursued to this point and the case which she advanced in these proceedings at the directions hearing in February 2021 and the motion which she later filed, that unless made the subject of the orders sought, she will not be deterred from her relentless pursuit of her beliefs, by the vexatious proceedings she is intent on pursuing.

14. [71]

    These conclusions rest on the evidence of the litigious course which Ms Clarke has unsuccessfully pursued directly and earlier with the support of her union, which is in summary as follows.

15. [72]

    In 2008 after Ms Clarke was dismissed from her employment at the Prince of Wales Hospital after a dispute with other staff, the Nurses Association brought proceedings under s 84 of the Industrial Relations Act, claiming that Ms Clarke had been unfairly dismissed. The termination of her employment had followed a decision that she had wilfully and fraudulently falsified and submitted a witness statement, considered to be a breach of the applicable Code of Conduct.

16. [73]

    The application was dismissed: Sharmain Naicker and NSW Health Service - Government of New South Wales for South Eastern Sydney Illawarra Area Health Service [2008] NSWIRComm 1104.

17. [74]

    In 2014 the Nurses Association notified a dispute under the Industrial Relations Act in relation to Ms Clarke’s employment at the Royal Hospital for Women about a performance appraisal and complaint about bullying. These proceedings were discontinued.

18. [75]

    In May 2015 the Association brought unfair dismissal proceedings under s 84 of the Industrial Relations Act, claiming that Ms Clarke had been unfairly dismissed from her employment at the Royal Hospital for Women. A notice of discontinuance was filed after the Association reported to Commissioner Newall that a binding settlement had been arrived at, but that Ms Clarke refused to sign the deed which reflected that agreement.

19. [76]

    Since then Ms Clarke has herself pursued numerous claims in relation to her treatment at work before her employment was terminated, which was the subject of the 2014 and 2015 proceedings and the steps which followed, which she claimed had adversely impacted her registration and ability to work as a nurse. She has also pursued complaints about the deed.

20. [77]

    In 2016 Ms Clarke commenced proceedings in the Fair Work Commission about the termination of her employment with the Royal Hospital for Women, seeking an extension of time to bring the proceedings. That application was refused: Naicker v South Eastern Sydney Local Health District t/as Royal Hospital for Women [2016] FWC 5697.

21. [78]

    Ms Clarke also made complaints alleging discrimination in her former employment to the Anti-Discrimination Board in 2016, on grounds relating to racism, victimisation, age, disability and domestic status, vilification and victimisation, being bullied and harassed and denied entitlement of her salary, with the result that she had suffered considerable loss.

22. [79]

    Her disability discrimination complaint was investigated, but declined on the grounds that it lacked substance.

23. [80]

    In 2016 Ms Clarke brought proceedings in the District Court against Ms Dale and Ms King, who were also employed at the Royal Hospital for Women, advancing claims for damages in relation to alleged harassment, vilification, defamation, coercion, corruption and refusal to comply with workers compensation. In 2017 she also brought proceedings against Ms Herrick.

24. [81]

    In Clarke (previously Naicker) v Herrick [2017] NSWDC 302, Gibbs DCJ made various orders, including an order dismissing Ms Clarke’s application to amend her Amended Statement of Claim to replace the current three named defendants with the name “Vanessa Madunic”.

25. [82]

    In August 2018 Balla DCJ made consent orders removing Ms Herrick and Ms King as defendants.

26. [83]

    In an unreported judgment of 7 June 2019 Levy SC DCJ noted that he had stood the hearing of a strike out motion over, to permit a referral for pro bono legal assistance to be dealt with. A mediator had later reported that Ms Clarke had declined to co-operate and the defendants had pressed for the hearing of their motion to proceed. Ms Clarke then sought and his Honour accepted that he should recuse himself from further hearing the motion.

27. [84]

    Ms Clarke was given leave instanter on 19 September 2019 to file a second further amended statement of claim in the Dale proceedings. That day Gibbs DCJ dismissed the defendants’ strike out motion, they having claimed that the statements of claim disclosed no reasonable cause of action by reason of the operation of the Workplace Injury Management and Workers Compensation Act.

28. [85]

    The hearing of the two cases proceeded before Robison DCJ in November 2019, until his Honour recused himself on his own motion: Clarke v Dale and Herrick (District Court (NSW) 25 November 2019, unrep). They were finally heard in August 2020 by Curtis ADCJ.

29. [86]

    Curtis ADCJ then dismissed both cases, preferring the evidence of Ms Dale and Ms Herrick over that of Ms Clarke: Clarke v Dale (District Court (NSW), 8 October 2020, unrep) and Clarke v Herrick (District Court (NSW), 8 October 2020 unrep).

30. [87]

    Ms Clarke has sought leave to appeal the Herrick decision and at the time of the hearing had not yet served an application for leave to appeal the Dale decision.

31. [88]

    In Clarke v South Eastern Sydney Local Health District [2017] NSWCATAD 81 Ms Clarke’s application for leave to proceed with her disability discrimination complaint was refused. Her complaint was put at its highest, but the Tribunal concluded that the material she relied on did not provide evidence of disability or presumed disability as being the reason for her claimed less favourable treatment, that is being subjected to performance assessment and having her employment terminated by her employer.

32. [89]

    It was concluded that Ms Clarke had not put forward a case addressing the elements of a disability discrimination complaint and thus the Tribunal was not satisfied that it was fair and just in all of the circumstances, for her complaint to proceed: at [41]-[43].

33. [90]

    In 2017 Ms Clarke complained to the NSW Ombudsman about the Nursing and Midwifery Council of NSW requesting an assessment of her Certificate of Registration whilst a matter was before the NSW Anti-Discrimination Board. Ms Clarke was advised that the Ombudsman will not usually intervene in matters where there is an alternative and satisfactory means of redress and advised her that in regard to refusal of registration or a set conditions of registration a right of appeal existed via the NSW Civil and Administrative Tribunal.

34. [91]

    Ms Clarke commenced proceedings in this Court in 2017 which were dismissed by Adamson J: Clarke v South East Sydney Local Health District [2018] NSWSC 66. She there claimed that she had been discriminated against by her employer and Ms Herrick; that they had breached the Government Sector Employment Act 2013 (NSW) and the Government Sector Employment Rules 2014 (NSW) and “violated” the Administrative Decisions (Judicial Review) Act 1977 (Cth), by breaching the rules of natural justice, engaging in fraudulent conduct and making a decision without evidence; and that she had suffered “intense variations in mental health conditions including symptoms of dissociations and a nervous shock” as a result of the IRC proceedings, which had not, in fact, been resolved: at [16].

35. [92]

    Adamson J concluded that Ms Clarke’s proposed draft pleading was bad in form and did not identify any tenable cause of action in respect of which the Court had jurisdiction: at [17]. In Clarke v South East Sydney Local Health District (No 2) [2018] NSWSC 357 her Honour made a costs order against Ms Clarke.

36. [93]

    Adamson J’s decision was overturned on a single ground, with Ms Clarke being granted leave to appeal on the basis that she had been denied procedural fairness because of the omission of several relevant documents at the hearing. The Health Authority conceded the appeal. In the result, consent orders were made and the matter remitted for further hearing: Sharmain Daisy Clarke v South East Sydney Health District (No 2) [2018] NSWCA 226.

37. [94]

    In August 2019 Bellew J again dismissed the proceedings, the missing documents having been tendered: Clarke v South Eastern Sydney Local Health District (No 3) [2019] NSWSC 1075 at [22]. His Honour concluded that no reasonable cause of action had been made out.

38. [95]

    In February 2020 an appeal from that decision failed: Clarke v South Eastern Sydney Local Health District [2020] NSWCA 8. Ms Clarke later made an application to the High Court for special leave to appeal.

39. [96]

    In 2018 Ms Clarke unsuccessfully sought to have Court Attendance Notices issued in the Local Court and unsuccessfully made complaints about her treatment by the Health District to the Australian Human Rights Commission.

40. [97]

    In these proceedings Ms Clarke claimed damages for alleged defamation, professional negligence and malice. In Clarke v Nursing and Midwifery Council of New South Wales [2018] NSWDC 337 Gibson DCJ granted Ms Clarke leave to amend her claim, with a costs thrown away order.

41. [98]

    In Clarke v Nursing and Midwifery Council of New South Wales (No. 2) [2019] NSWDC 531 Ms Clarke’s reply was struck out and she was given leave to amend, with an order that she pay the Council’s costs. Her Honour also dismissed a motion seeking an order that Hicksons “recuse themselves” in the proceedings: Clarke v Nursing and Midwifery Council of New South Wales (No 3) [2019] NSWDC 532.

42. [99]

    In Clarke v Nursing and Midwifery Council of New South Wales (No. 4) [2019] NSWDC 659 Gibson CCJ struck out the amended reply and gave the Council leave to administer interrogatories.

43. [100]

    The proceedings were due to be heard in March 2020 but were vacated and had not been heard at the time of the hearing.

44. [101]

    Ms Clarke commenced District Court proceedings in April 2018 claiming damages for alleged bullying and harassment, assaults, racial slurs, gossiping, victimisation, intimidation and management’s inability to manage the perpetrators. She referred to alleged conduct of Ms Dale, Ms King, Ms Herrick and others, as well as actions allegedly taken by the Council, including its failure to fairly hear her case, causing her psychological injury and resulting in her being misrepresented by a legal practitioner, which had resulted in her making complaints to the Office of the Legal Services Commissioner and commencing proceedings in the Local Court, amongst other claimed adverse consequences.

45. [102]

    These proceedings were discontinued by consent in November 2019, after an amended statement of claim was filed in September 2018.

46. [103]

    In 2018 Ms Clarke brought proceedings in the District Court in slander against Ms Fenn, the Acting Director of Nursing, Gynaecological Services at the Royal Hospital for Women in 2015, about her telephone communication with the Council as part of its investigation of a complaint about Ms Clarke, pursued by way of an Australian Health Practitioner Regulation Agency Notification, when information was sought by the Council about the complaint.

47. [104]

    In Clarke v Fenn [2018] NSWDC 336 Gibson DCJ ordered that the proceedings be struck out and dismissed, Ms Clarke’s application for an extension of time to bring the proceedings having failed. Her Honour concluded that Ms Fenn’s role was analogous to that of a witness in quasi-judicial proceedings and, as such, protected both under the principles of immunity from suit at common law and under s 27 of the Defamation Act 2005 (NSW), as well as being protected by absolute privilege: at [37]-[38].

48. [105]

    In Clarke v Fenn (No 2) [2018] NSWDC 417 Ms Clarke was ordered to pay costs for those proceedings.

49. [106]

    Ms Madunic and Mr Marr were also employed at the Royal Hospital for Women during Ms Clarke’s employment. Ms Clarke brought these proceedings in the Federal Circuit Court in May 2018, claiming orders in relation to bullying, harassment, victimisation and fraudulent conduct and a failure to allow her to return to pre-injury duties, amongst many other claims.

50. [107]

    They were adjourned pending determination of other proceedings which Ms Clarke had brought in the Federal Court and were later dismissed by Street J in November 2019.

51. [108]

    Ms Clarke brought these District Court proceedings in defamation, complaining about statements published in affidavits filed in Supreme Court proceedings that she had suffered from anxiety and depression, amongst other matters. The claim was later amended to refer to a pro forma Workers Compensation Injury Notification form filled out by Ms Herrick in September 2015, in respect of which Ms Clarke had not sought an extension of time.

52. [109]

    In Clarke v Herrick [2019] NSWDC 533 Gibson DCJ ordered that the proceedings be struck out and dismissed with an order for costs, doubting that the claim was actionable or that Ms Clarke’s ill health had precluded her from dealing with the proceedings, given her ongoing involvement in other litigation. Her Honour concluded that the proceedings had to be summarily dismissed given the expiry of the limitation period: at [10]-[15].

53. [110]

    Ms Clarke filed a notice of intention to appeal this decision in October 2019. Leave to appeal was refused: Clarke v Herrick [2020] NSWCA 71. It was concluded that Ms Clarke had not demonstrated even arguable error or procedural unfairness: at [25] and [29].

54. [111]

    In February 2019 Ms Clarke also brought proceedings in the Federal Court against the Council, the Health District and Ms Dale, claiming that she had been discriminated against under the Racial Discrimination Act and the Disability Discrimination Act: Clarke v Nursing and Midwifery Council New South Wales [2019] FCA 1782 at [5]. At [12] Flick J concluded that:

55. [112]

    Those conclusions rested on the statutory scheme and the history which Flick J explained. That included the myriad of earlier claims Ms Clarke had unsuccessfully pursued in the Industrial Relations Commission, Fair Work Commission, NCAT, NSW Ombudsman, Office of the Legal Services Commissioner, Office of the Australian Information Commissioner, the District Court, Supreme Court, Court of Appeal and Federal Circuit Court: at [25]-[27]. These were in addition to the history of her complaints to the Human Rights Commission about the Health District, its employees and the Council: at [28]- [44].

56. [113]

    Flick J also concluded that it was apparent that whether the complaints Ms Clarke had made to the Commission were viewed in isolation or cumulatively, she had attempted to substantially re-agitate complaints in the Federal Court which she had already made to the Commission and other forums and that for reasons given the Commission itself had:

57. [114]

    Ms Clarke has sought leave to appeal this decision, but that application has also not yet been heard.

58. [115]

    Ms Clarke commenced proceedings in the District Court in April 2019 in relation to a series of publications, including documents filed on the JusticeLink database, such as an affidavit sworn on 5 April 2018, as well as similar publications.

59. [116]

    Those claims were withdrawn after a foreshadowed application for summary dismissal on the basis of absolute privilege and an amended statement of claim filed in relation to a wholly new matter based on a document published in September 2015, that being a pro forma “Workers Compensation Injury Notification Form” which Ms Herrick had completed.

60. [117]

    In November 2019 Ms Clarke brought these proceedings in the Federal Circuit Court claiming aggravated and exemplary damages against the Council for breach of duty of care and professional negligence causing harm and loss; against the Board for fraudulent and misleading conduct; and against Ms Stojkova claiming that she as the principal solicitor at Hicksons Lawyers acting for the Health District in legal proceedings Ms Clarke had commenced, “intentionally and knowingly repeated dishonest conduct to the Supreme and District Courts”: Clarke v Nursing and Midwifery Council of New South Wales & Ors [2019] FCCA 2127.

61. [118]

    Dowdy J dismissed the proceeding against the Council, the Board and Ms Stojkova, concluding Ms Clarke had no reasonable prospects of successfully prosecuting the proceedings, which were otherwise frivolous, vexatious and an abuse of the Court’s process.

62. [119]

    The proceedings against the Association were later also dismissed and costs ordered in favour of the other respondents: Clarke v Nursing and Midwifery Council of New South Wales & Ors (No.2) [2019] FCCA 3035.

63. [120]

    Ms Clarke sought to reopen this hearing before those reasons were published and the orders entered. That application was dismissed in Clarke v Nursing and Midwifery Council of New South Wales & Ors (No.3) [2019] FCCA 3159, she not having advanced anything which inclined Dowdy J to alter the conclusions he had earlier reached: at [7]. In Clarke v Nursing and Midwifery Council of New South Wales & Ors (No.4) [2019] FCCA 3639 costs were ordered in favour of the third respondent.

64. [121]

    Ms Clarke has appealed these decisions to the Federal Court, but the appeal has not yet been heard.

65. [122]

    Ms Stojkova had day to day carriage of various matters involving Ms Clarke between 2016 and 2019.

66. [123]

    In September 2019 Ms Clarke brought proceedings in the Local Court against Ms Stojkova and Hicksons, complaining about affidavits which Ms Stojkova and others in the employ of Hicksons had sworn, or letters they had written in District Court and Supreme Court proceedings, which she claimed gave rise to identified adverse imputations, which had damaged her. She sought aggravated damages for claimed defamatory statements.

67. [124]

    The proceedings were struck out under r 14.28 of the Uniform Civil Procedure Rules 2005 in October 2019 as disclosing no reasonable cause of action, having a tendency to cause prejudice, embarrassment or delay and being an abuse of process.

68. [125]

    Ms Clarke brought proceedings for administrative review in 2019, the details of which may not be published as the result of an interlocutory decision given in October 2019, which was heard in August 2020, with the decision reserved at the time of the hearing.

69. [126]

    Ms Clarke commenced these proceedings in April 2020 seeking damages for alleged breaches of the Legal Profession Act 2004 (NSW) and other misconduct on the part of employed solicitors Ms Pecker, Ms Ellis and Ms Faunt in various matters.

70. [127]

    The claims have been amended and Hicksons application for summary dismissal has not yet been determined.

71. [128]

    Ms Clarke commenced these proceedings in June 2020 seeking damages for the conduct of Ms Herrick, Ms Fenn, Ms Madunic, Mr Marr and Ms King in relation to their various actions in 2014 and 2015 in relation to her employment and registration.

72. [129]

    The Health District is pursuing orders summarily dismissing this claim.

73. [130]

    Ms Clarke filed an application seeking orders in relation to matters the subject of the decision in Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163 and alleged non-compliance with conditions of her registration imposed in 2015. She claimed, amongst other things, that the 2017 decision was affected or induced by fraud.

74. [131]

    The proceedings were dismissed as misconceived, given that the 2017 decision had been overtaken by a 2018 decision of the Impaired Registrants Panel under the National Law, which imposed a condition upon Ms Clarke’s registration requiring her not to practice, which was operative despite a 2020 review of her registration conditions: Clarke v Nursing and Midwifery Council of New South Wales [2020] NSWCATOD 58.

75. [132]

    In January 2020 Ms Clarke commenced further proceedings in the Federal Circuit claiming unlawful termination. After various interlocutory orders they were listed in May for a hearing as to whether orders summarily dismissing the proceedings should be made.

76. [133]

    On 6 April 2020 Ms Clarke discontinued the proceedings.

77. [134]

    In these proceedings commenced in October 2020 Ms Clarke seeks damages for medical negligence from treating doctors, as well as from a practitioner who assessed her on referral by the Australian Health Practitioner Regulation Agency, and another who sat on the Impaired Registrants panel and from the Health District, whom she claims wrongly detained her in a mental health unit in 2019.

78. [135]

    These proceedings are yet to be heard.

79. [136]

    Ms Clarke filed an application for special leave to appeal in March 2020 which was dismissed by Nettle J on 18 June.

The orders sought should be made

1. [137]

   A vexatious proceedings order is never lightly made. “The purpose of the statutory power is not to punish the litigant for past misdeeds. The purpose is to shield other litigants from harassment and to protect the Court itself from the expense, burden and inconvenience of baseless and repetitious suits”: Teoh at [56].

2. [138]

   The evidence well establishes that the other parties to the vexatious proceedings which Ms Clarke has conducted need to be shielded from her relentless pursuit of her beliefs in the Courts and Tribunals in which she has pursued them.

3. [139]

   That justice requires that the Court’s discretion be exercised to make those orders, confined appropriately as they finally were, is an inevitable conclusion given:

Costs

1. [140]

   The usual order under the Uniform Civil Procedure Rules is that costs follow the event, which in this case is an order that Ms Clarke bear the Health District and Council’s costs, as agreed or assessed. Unless the parties approach to be heard in respect of costs within 14 days, that will be the Court’s order.

Orders

1. [141]

   For these reasons I also make orders in the terms sought that:

   1. (1)

      Pursuant to the Vexatious Proceedings Act 2008, s 8(7)(b) the Defendant is prohibited from instituting proceedings in NSW against or relating to: -

   2. (2)

      Pursuant to the Vexatious Proceedings Act 2008, s 8(7)(a) the following District Court of NSW proceedings are stayed: