South Eastern Sydney Local Health District v Clarke (No 2)

1. [1]

   On 17 September 2019, the plaintiffs, South Eastern Sydney Local Health District and Nursing and Midwifery Council of New South Wales, commenced these proceedings, seeking orders under the Vexatious Proceedings Act 2008 (NSW) (“the Act”) that the defendant, Sharmain Clarke, be prohibited from instituting proceedings, and that all her existing proceedings be stayed. On 9 February 2021, Schmidt AJ made orders to that effect, at least insofar as the plaintiffs, their staff, consultants, executive officers and agents were concerned: South Eastern Sydney Local Health District v Clarke [2021] NSWSC 63.

2. [2]

   However, before judgment was delivered, Schmidt AJ listed the proceedings on 2 February 2021 and made these orders:

3. [3]

   Notwithstanding those orders, and prior to the delivery of her Honour’s judgment, the defendant filed a Notice of Motion on 5 February 2021 seeking the following orders:

4. [4]

   This judgment concerns that notice of motion.

5. [5]

   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:

6. [6]

   Before giving consideration to the orders sought by the defendant in her notice of motion, the history of the proceedings since Schmidt AJ’s judgment should be mentioned.

7. [7]

   On 16 February 2021, the defendant filed a summons seeking leave to appeal from Schmidt AJ’s orders. Thereafter, on 9 March 2021, she filed a notice of motion which came before Emmett AJA. His Honour said that the orders she sought were difficult to comprehend, but he considered that she sought expedition of her summons for leave to appeal, and a stay of Schmidt AJ’s orders. His Honour dismissed the notice of motion, but said that he would make arrangements with a view to expediting the hearing of her summons: Clarke v South Eastern Sydney Local Health District [2021] NSWCA 43.

8. [8]

   Of some relevance for the present notice of motion, is what his Honour said at [5]:

9. [9]

   The summons for leave to appeal came on for hearing before Gleeson JA and Emmett AJA on 26 April 2021. Judgment was given on 13 May 2021, dismissing the summons: Clarke v South Eastern Sydney Local Health District [2021] NSWCA 84. The Court of Appeal found that Ms Clarke “has not demonstrated the slightest possibility of error on the part of the primary judge or demonstrated any basis upon which an appeal could be allowed”. It is of some significance that it does not appear from that judgment that any complaint was made about the motion of 5 February 2021 not being dealt with by Schmidt AJ.

Vexatious Proceedings Act

1. [10]

   Section 4 of the Act defines proceedings to include:

2. [11]

   Section 5 defines instituting proceedings to include:

3. [12]

   Section 14 sets out the procedure for seeking leave to institute proceedings. It relevantly provides:

Consideration

1. [13]

   The short answer to the motion filed 5 February 2021 is that it should be dismissed because it was filed in contravention of the orders of Schmidt AJ on 2 February 2021. Even if that is not correct, the orders made by Schmidt AJ on 9 February 2021 have the effect of staying the prosecution of this motion. Finally, the combination of ss 4, 5 and 14 of the Act have the effect that Ms Clarke cannot move on her motion previously filed, because that is taking a step in interlocutory proceedings, and the procedure in s 14 must be followed.

2. [14]

   Ms Clarke read and relied on two affidavits sworn by her, both on 29 March 2021. One consisted, with annexures, of 274 pages, and the other, with annexures, of 173 pages. Ms Clarke explained that the affidavit of 3 February 2021, referred to in prayer 1 of the notice of motion, was re-sworn on 29 March 2021. It was the affidavit consisting of 173 pages. In respect of those affidavits, in both cases, the substantive parts of the affidavits challenged the summons which the plaintiffs had filed, and which was determined by Schmidt AJ. The affidavits complained that a notice of motion Ms Clarke had filed on 13 October 2020 had not been dealt with. This was a matter about which Ms Clarke made complaint at the hearing of her summons for leave to appeal. The Court of Appeal said at [6] that Schmidt AJ was appropriately satisfied that Ms Clarke should not be permitted to move on that motion before the plaintiffs’ summons had been determined.

3. [15]

   Ms Clarke asserted in the affidavits that she had been denied procedural fairness in the way the plaintiffs’ summons had been dealt with by Schmidt AJ. She raised matters to the effect that the various proceedings she had instituted were not vexatious, and she dealt, to some extent, with the substance of her complaints raised in all of the proceedings considered by Schmidt AJ, concerning her psychiatric health and her grievances about the way she perceived she had been dealt with.

4. [16]

   The annexures to the affidavits consisted largely of prior affidavits Ms Clarke had filed, which themselves annexed documents related to her substantive grievances.

5. [17]

   Ms Clarke identified Annexure SDC6 to one of those affidavits as a document containing submissions she wished to make on the present application. The substance of those submissions consisted of complaints directed to the proceedings brought by the plaintiffs to have her declared vexatious, and directed to the way the proceedings were dealt with by Schmidt AJ. They were submissions more appropriately made to the Court of Appeal, either on a leave to appeal application, or thereafter, if leave was granted.

6. [18]

   The affidavits filed by Ms Clarke did not meet any of the criteria outlined in s 14(3) of the Act. Section 15(1)(a) of the Act, therefore, requires me to dismiss the application. Even if the affidavit had been served in accordance with the statutory requirements, I would have dismissed the application for leave on the basis that the notice of motion is vexatious and/or there are no prima facie grounds for it (s 15(1)(b) – (c)). A number of the orders pressed sought either to re-litigate matters which were already determined in earlier proceedings, or are a challenge to the judgment of Schmidt AJ.

7. [19]

   However, as Ms Clarke and the plaintiffs directed argument to each of the prayers in the notice of motion, I shall consider them on the basis that Ms Clarke was permitted to move on them. At the outset, Ms Clarke said that she no longer moved on prayers 3 and 4. However, at a later point in the hearing she sought to pursue prayer 4.

8. [20]

   Ms Clarke came to accept, during argument, that what was raised had been dealt with by Schmidt AJ, and that any complaint about the disposition of the plaintiffs’ summons would need to be dealt with by the Court of Appeal.

9. [21]

   This prayer is refused.

10. [22]

    Ms Clarke explained that what she meant by this prayer was that there should be a stay of the costs orders in all of the proceedings she has instituted where costs orders were made against her. She also wanted a stay on the costs order made by Schmidt AJ.

11. [23]

    I explained to Ms Clarke that in relation to all of the proceedings, other than the present proceedings, it would be necessary for her to seek stays in each of those proceedings. She could not do it by a general order sought in these proceedings. I also explained to her that it would now be necessary for her to follow the procedure in s 14 of the Act as a result of the orders made by Schmidt AJ, if she wanted to pursue such orders. Ms Clarke ultimately accepted those matters.

12. [24]

    In relation to a stay on the costs order made by Schmidt AJ, no basis was shown in any of Ms Clarke’s material. I suggested to her that, since she had filed a summons for leave to appeal, she should pursue a stay in the Court of Appeal. Since the hearing before me, the Court of Appeal has refused Ms Clarke’s leave to appeal. In those circumstances, no basis is shown for staying Schmidt AJs’ costs orders.

13. [25]

    This prayer is refused.

14. [26]

    To the extent that prayer 5 sought a stay of Schmidt AJ’s judgment, whether for filing cross-claims as it seems to imply, or otherwise, that was a matter raised by Ms Clarke before Emmett AJA, and refused. His Honour said:

15. [27]

    These prayers appear to seek leave for Ms Clarke to file cross-claims against unspecified parties. The reference in prayer 7 to “Annexure SDC5-page 167 paragraph 7” is a reference to part of the judgment of Harrison J, when his Honour dealt with Ms Clarke’s notice of motion filed 3 February 2020 in the plaintiffs’ proceedings. That was a motion where Ms Clarke was seeking referral for pro bono assistance. His Honour refused that application, and made other orders: South Eastern Sydney Local Health District v Clarke [2020] NSWSC 1155.

16. [28]

    Paragraph 7 of his Honour’s judgment says this:

17. [29]

    His Honour fixed the matter for hearing, and made this order:

18. [30]

    The effect of Schmidt AJ’s orders is that Ms Clarke cannot file any cross-claims unless she follows the procedure set out in s 14 of the Act. I cannot shortcut that procedure simply be giving leave to file such claims. In any event, no formulated claims were put forward.

19. [31]

    These prayers are refused.

20. [32]

    This prayer echoes what was sought in Ms Clarke’s notice of motion of 3 October 2020. The explanation given by Ms Clarke in her oral submissions for what this prayer means, suggested that she was desirous of setting aside all the judgments which have been given against her. She suggested that, if Schmidt AJ had not delivered her judgment, Ms Clarke then would have sought to explain why the summons brought by the plaintiffs would have failed. There was a suggestion of a denial of procedural fairness by Schmidt AJ, because Ms Clarke said that she was not able to make submissions on some aspect of the case.

21. [33]

    Ms Clarke had first sought to pursue leave to file cross-claims when the motion for pro bono assistance was before Harrison J. I set out above (at [28]) what Harrison J said in that regard.

22. [34]

    At the hearing before Schmidt AJ, she sought to have her 3 October motion heard before the plaintiffs’ summons. Justice Schmidt said:

23. [35]

    It seemed to me that what was sought in prayer 8 was yet another attempt to have an order made that was refused by Harrison J and Schmidt AJ. There was the further problem that the effect of Schmidt AJ’s judgment was to preclude this order in any event. It was a further attempt to re-agitate and re-litigate the issues which she had unsuccessfully pursued in the proceedings that resulted in the present proceedings and the orders under the Act made by Schmidt AJ. Now, as I said earlier, as a result of that judgment, it would be necessary for Ms Clarke to follow the procedure in s 14 of the Act to achieve the end sought in this prayer.

24. [36]

    When I pointed out to Ms Clarke that any challenge to Schmidt AJ’s judgment would have to be dealt with by the Court of Appeal, she accepted that that was so. She then asked that I adjourn the hearing of this motion until after the Court of Appeal had dealt with her summons for leave to appeal. I refused to adjourn the motion. It was not apparent how an adjournment would advance the motion. If matters raised by the notice of motion were only appropriate for the Court of Appeal to deal with, adjourning the motion would not result in a different outcome. None of the matters to be dealt with by the Court of Appeal would result in the proceedings being remitted to me simply because I was hearing Ms Clarke’s motion.

25. [37]

    This prayer should be refused.

26. [38]

    By this prayer, Ms Clarke sought pro bono assistance pursuant to UCPR r 7.36 for “the purposes of a task of compiling cross summonses in the appropriate forms in the matter/s complained about”. Under r 7.36, the Court may make such an order provided it is in “the interests of the administration of justice to do so”.

27. [39]

    This prayer is, self-evidently, related to Ms Clarke’s desire to file cross-claims. It is instructive to note what Harrison J said when his Honour considered Ms Clarke’s earlier application for pro bono assistance:

28. [40]

    I am similarly satisfied that a referral for pro bono assistance will neither be beneficial nor of any practical benefit. What is contained in Schmidt AJ’s judgment is testimony to that. Leave to appeal to the Court of Appeal was refused. The Court of Appeal said:

29. [41]

    A court should not ordinarily refer a matter for pro bono assistance if it considers the claim is without merit: Phu v NSW Department of Education and Training [2011] NSWCA 119; M v Director General, Department of Family and Community Services [2013] NSWCA 118 at [21]. I note also what Leeming JA said in Neale v Commonwealth Bank of Australia Ltd [2015] NSWCA 136 at [3] to [6] about the demands on the pro bono system. In the face of Schmidt AJ’s judgment, there is no basis for referring Ms Clarke for pro bono assistance.

30. [42]

    This prayer should be refused.

31. [43]

    No basis is shown for ordering any costs to Ms Clarke because she filed this notice of motion. The suggestion appears to be that, if the motion filed 3 October 2020 had been dealt with, the present motion would not have been necessary. However, Schmidt AJ determined not to deal with the October motion until she had dealt with the plaintiffs’ summons. Having found in favour of the plaintiffs on the summons, the motion became otiose. The Court of Appeal upheld that approach.

32. [44]

    During oral submissions, Ms Clarke submitted that what she meant by this order (despite what it says) was that it was “a motion for a no cost jurisdiction”. That was said to be because her human rights have been breached. She submitted that, whatever the outcome on the motion, there should be no order for costs.

33. [45]

    This Court is not a “no costs jurisdiction”. A party who brings proceedings, or an application within proceedings, is liable to pay the other party’s costs if the initiating party is unsuccessful. That is the usual rule. There are no exceptions for breaches of human rights. In any event, Ms Clarke does not show, especially in the face of Schmidt AJ’s judgment, that her human rights have been breached.

34. [46]

    There is no basis for the usual rule not to apply in the present case.

35. [47]

    This prayer should be refused.

Conclusion

1. [48]

   I make the following orders:

   1. (1)

      The defendant’s notice of motion filed 5 February 2021 is dismissed.