Clarke v Adams

On 9 February 2021, Schmidt AJ determined an application made by the South Eastern Sydney Local Health District for orders under the Vexatious Proceedings Act 2008 against Sharmain Daisy Clarke: South Eastern Sydney Local Health District v Clarke [2021] NSWSC 63 (the “principal judgment”).

Her Honour made two orders. Order (1) was made pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008, s 8(7)(b). It prohibited Ms Clarke from instituting proceedings in NSW against or relating to: -

Order 2 stayed two specific proceedings commenced by Ms Clarke that were on foot at the time of the judgment.

On 27 October 2021 Ms Clarke filed a summons in this Court naming five defendants being Dr Andrew Adams, Dr Patrick Toohey, Anthony Samuels, Karen Arnold and the “Northern Sydney Local Health District (Dr Tina Kastowsky and Dr Y-Cho Su)”.

By s 14 of the Vexatious Proceedings Act 2008, Ms Clarke is required to obtain a grant of leave from this Court to pursue proceedings that the order made by Schmidt AJ would otherwise prohibit Ms Clarke from instituting. If a grant of leave is required, Ms Clarke must file an affidavit that conforms with s 14(3). Ms Clarke is precluded from serving the application. This Court must then either dismiss the application under s 15 or grant the application after having complied with section 16.

The first issue that arises is whether the commencement of the proposed proceeding is prohibited by the vexatious proceedings order made by Schmidt AJ. The nature of the proceeding sought to be commenced is hard to describe. Other than seeking leave under s 14, the summons seeks a series of unintelligible orders in respect of the five defendants. Some of the claims for relief appear to complain about medical assessments undertaken by the defendants. Other claims seek to set aside the vexatious proceedings order made by Schmidt AJ.

An indication of what the summons is directed to is ascertainable from the principal judgment. Her Honour noted that Ms Clarke was formerly a registered nurse who repeatedly pursued vexatious litigation about her loss of employment and registration as a nurse against both the South Eastern Sydney Local Area Health Service, the Nursing and Midwifery Council of NSW and others. At [134ff], her Honour noted that Ms Clarke had instituted proceedings in the District Court against the five defendants to the current proceedings seeking damages. Schmidt AJ described the defendants as those “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”. Those proceedings were stayed by Order (2) made by Schmidt AJ. The principal judgment also records that Ms Clarke sought to adjourn the proceedings before her Honour so that she could subpoena and cross‑examine those five persons (at [23]). Her application was refused.

As best as I can ascertain, the proposed summons seeks to, inter alia, reagitate the proceedings that were stayed by Schmidt AJ. The scope of the vexatious proceedings order is set out above. The summons filed in this matter is not prohibited by (a) or (b) of Order (1). However, even though the previous proceedings against the proposed defendants was not one of the specific proceedings listed in relation to Order (1)(c), I am satisfied that its subject matter was covered by the subject matter of the proceedings listed in relation to Order (1)(c). So much appears implicit in her Honour ordering a stay of the proceedings by Order (2). The subject matter of most of the proceedings listed in Order (1)(c) was Ms Clark’s employment and registration status as a nurse and the actions of the various staff and medical personnel who were either involved in the decisions made concerning those matters or in treating or diagnosing her. That was also clearly the subject matter of the previous proceedings against the named defendants to the proposed summons. It follows that the institution of the proposed proceedings is prohibited by the vexatious proceeding order made by Schmidt AJ.

Section 15 of the Vexatious Proceedings Act provides:

I have not been provided with sufficient information to enable me to conclude one way or another whether the affidavit provided by Ms Clarke substantially complies with s 14(3). However, I consider that the proceedings she seeks to commence are both vexatious and lack a prima facie ground. In relation to the former, part of the relief she seeks is to unravel the orders made by Schmidt AJ and otherwise seeks to go behind a number of judgments. As such it is an abuse process. In relation to the latter, the relief sought is, as I have said, generally unintelligible. Based on the material she has filed there is no prima facie ground for the proceedings.

It follows that the application under s 14 must be dismissed.

Accordingly: