Clarke v Nursing and Midwifery Council of New South Wales

1. [1]

   Ms Sharmain Daisy Clarke (“the applicant”) is a vexatious litigant, having been made subject on 9 February 2021 to an order of this Court under s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW) (“the Act”) prohibiting her from instituting proceedings in NSW against or relating to:

   1. (1)

      the South Eastern Sydney Local Health District (and its statutory predecessors and successors), its staff, consultants, executive officers and agent in relation to any matter arising from her employment;

   2. (2)

      the Nursing and Midwifery Council of New South Wales and the Health Professional Councils Authority, their staff, consultants, executive officers and agents, in relation to any matter arising from her professional practice (except with the consent of the Nursing and Midwifery Council);

   3. (3)

      the subject matter of proceedings brought in some 28 different proceedings across various tribunals, the Local Court of New South Wales, the District Court of New South Wales, the Supreme Court of New South Wales, the Federal Circuit Court, and the Federal Court of Australia,

2. [2]

   By way of background it is useful to briefly summarise the proceedings heard by Schmidt AJ which lead to the order declaring the applicant to be a vexatious litigant.

South Eastern Sydney Local Health District v Clarke [2021] NSWSC 63 (“SESLHD v Clarke”)

1. [3]

   On 16 and 17 November 2020, Schmidt AJ heard proceedings commenced by the South Eastern Local Area Health District (the “Local Health District”) and the Nursing and Midwifery Council of New South Wales (the “Nursing Council”) seeking orders under s 8 of the Act as against the applicant: SESLHD v Clarke at [1].

2. [4]

   As in these present proceedings, the applicant was unrepresented, tendered a large volume of documents, and relied on a number of affidavits which annexed documents relating to various proceedings she had pursued over a number of years: SESLHD v Clarke at [5].

3. [5]

   In August 2020, Harrison J listed the matter for hearing on 16 and 17 November 2020: SESLHD v Clarke at [9], [14].

4. [6]

   By an October 2020 motion, the applicant sought leave to issue a number of subpoenas to people whose evidence she had not served as well as a number of other orders. However, she did not explain why she sought to issue those subpoenas or what evidence she intended to call from the subpoenaed individuals: SESLHD v Clarke at [15]-[16].

5. [7]

   Schmidt AJ regarded the applicant’s position as seeking “to re-agitate concerns which she had unsuccessfully pursued in the many proceedings to which her cross-summons and the motion were directed” and her application to have her motion heard before the summons was refused. The hearing of the summons proceeded: SESLHD v Clarke at [19]-[21]. The applicant when later tendering her evidence, again pressed for leave to issue the subpoenas. Leave was refused: SESLHD v Clarke at [22].

6. [8]

   The applicant also sought to call oral evidence from another group of people who were not dealt with in her motion. The applicant gave no prior notice or explanation of the purpose for which she sought to call these people or how their evidence could advance her case and did not establish that their evidence was relevant. Schmidt AJ refused the application as to grant leave would have necessitated an adjournment and having regard to the ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW): SESLHD v Clarke at [24]-[30].

7. [9]

   At issue between the parties was whether the Local Health District and the Nursing Council had met the onus on them to make out their case that the applicant had frequently conducted vexatious proceedings in Australia: SESLHD v Clarke at [33].

8. [10]

   The Local Health District and the Nursing Council submitted that given the failure of the majority of the applicant’s proceedings as against the same parties and arising from similar facts, the serious assertions of misconduct made, and the applicant’s persistence in seeking to reagitate already decided matters, the evidence established an abuse of process, that the applicant had instituted proceedings which had harassed, annoyed and caused detriment and that such proceedings had been pursued without reasonable grounds: SESLHD v Clarke at [36].

9. [11]

   Schmidt AJ helpfully lists and briefly summarises the approximately 30 proceedings which the applicant has pursued from 2008 until present: SESLHD v Clarke at [71]-[136]. There is little utility in my repeating that summary here.

10. [12]

    The applicant relied on her affidavits and a large volume of documents to submit that “she had never sought to be vexatious. But had sought only to exercise her rights, as she was entitled to do”: SESLHD v Clarke at [37].

11. [13]

    In her first written submissions the applicant raised some 85 questions which she suggested had not been considered in the proceedings she had brought: SESLHD v Clarke at [38].

12. [14]

    In her second written submissions the applicant provided a defence commenting on the affidavit of Ms Faunt (relied upon by the plaintiffs) and alleging she was in breach of her ethical and professional obligations: SESLHD v Clarke at [40]. The applicant also gave an outline of her training and education, how various employments came to be terminated and the alleged discriminatory conduct she had been subjected to: SESLHD v Clarke at [41]. The applicant also explained that she had commenced multiple proceedings because in the conduct of certain proceedings she had discovered fraudulent, and deceptive conduct as well as misconduct: SESLHD v Clarke at [42]. The applicant also referred to various alleged criminal conduct and attempts to pervert the course of justice, and explained medical negligence claims she had instituted as a result of a wrong diagnosis: SESLHD v Clarke at [43]-[44]. The applicant complained about delays in prosecuting the proceedings which she alleged were designed to embarrass or frustrate her: SESLHD v Clarke at [45]. The applicant submitted that because she had received pro bono assistance in her District Court proceedings, they could not be found to have been vexatious: SESLHD v Clarke at [47]. The applicant outlined “quantum’s” which she claimed she was owed by the Local Health District and the Nursing Council for a number of matters: SESLHD v Clarke at [48]-[49].

13. [15]

    In her final written and oral submissions, the applicant reiterated many of these submissions “in considerable detail”: SESLHD v Clarke at [50]. In her December 2020 submissions the applicant submitted that matters raised in Ms Faunt’s affidavit were irrelevant and involved misconduct: SESLHD v Clarke at [51]. She also referred to directions given by Harrison J about the filing and service of evidence and complained of delay, submitting that the proceedings should be dismissed on grounds of lack and denial of efficient use of available judicial and administrative resources: SESLHD v Clarke at [52]. In the result, the applicant submitted that the Local Health District and the Nursing Council had failed to establish she was a frivolous and vexatious litigant: SESLHD v Clarke at [53]. However, the applicant did accept that after her dismissal from her employment she had pursued multiple proceedings: SESLHD v Clarke at [54].

14. [16]

    After consideration, Schmidt AJ was “satisfied that [the applicant’s] complaints about the initiation and pursuit of these proceedings and Ms Faunt’s evidence had no proper basis. Further that the evidence, as well as the case which [the applicant] herself advanced, well establish that she has frequently instituted and conducted vexatious proceedings” and her “conduct in these proceedings establishes that she is intent on pursuing that course”: SESLHD v Clarke at [58]-[59].

The Current Proceedings

1. [17]

   On 5 May 2021, in matter number 2021/125433, the applicant filed a summons seeking leave in accordance with s14 of the Act to institute proceedings in this Court. The summons reads:

2. [18]

   On 11 November 2021, the applicant sent to the Common Law Registrar and my chambers an email (the “11 November 21 email”) attaching an amended summons signed by the applicant on the same date. The email reads:

3. [19]

   The amended summons contains some 34 paragraphs seeking a variety of orders. Rather than reproduce it in its entirety here, I have annexed it to this judgment. It relevantly reads:

4. [20]

   As written, the relief sought in the amended summons is not especially clear. However what is obvious is that the applicant, a vexatious litigant as per s 14(1)(a) of the Act, is applying to this Court under s 14(2) of the Act seeking the granting of leave under s 14(5)(b) of the Act in accordance with the requirements in s 16 of the Act to bring a number of proceedings or seek numerous forms of relief.

5. [21]

   By way of logical necessity, the first matter to be dealt with is the application for leave made under s 14 of the Act, as if it is refused pursuant to s 15 of the Act, then other orders sought need not be considered. If, however, the application is granted pursuant to s 16 of the Act it will be necessary to return to the other orders and consider more closely the relief that the applicant is seeking therein.

6. [22]

   Before considering the applicable sections of the Act it is necessary to say something about the broad statutory scheme.

7. [23]

   The scope of the Act’s operation is contingent on ss 4, 5, and 6 of the Act which provide definitions for the meaning of the term “proceedings” and the phrases “instituting proceedings” and “vexatious proceedings”. In that regard I adopt the analysis of Schmidt AJ: SESLHD v Clarke at [60]-[65].

8. [24]

   The right to bring proceedings is of fundamental importance: Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at 977; [1981] 1 All ER 289; Re Attorney-General (Cth); Ex Parte Skyring [1996] HCA 4; (1996) 135 ALR 29; 70 ALJR 321 at 323. Correspondingly, it is a fundamental principle that citizens are afforded freedom of access to the courts: Williams v Spautz [1991-1992] 174 CLR 509 at 519; Ramsey v Skyring (1999) 164 ALR 378 at 389 [51]; Clark v State of New South Wales (2006) 66 NSWLR 640 at 655–565 [63]; Attorney-General (NSW) v Bar-Mordecai [2009] NSWSC 218 at [9] (“A-G v Bar-Mordecai 2009”).

9. [25]

   The court’s overriding objective in all civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in dispute, having regard to the dictates of justice, the efficient disposal of the court’s business, the efficient use of judicial resources and the timely disposal of all proceedings in the Court at a cost which is affordable to the parties: ss 56-58 Civil Liability Act 2002 (NSW).

10. [26]

    In Ramsey v Skyring, Sackville J when having regard to an application made by a District Registrar of the Federal Court of Australia under the Federal Court Rules O 21, r 1 observed at 392 [67]:

11. [27]

    Therefore provisions such as those in the Act are designed to protect the Court’s processes against usurpation of its time and resources (A-G v Bar-Mordecai 2009 at [10] citing Jones v Skyring (1992) 66 ALJR 810 at 814) and the community who would expect that their disputes are resolved in an orderly and expeditious manner, against disruption flowing from the repeated institution of groundless proceedings: A-G v Bar-Mordecai 2009 at [10] citing Ramsey v Skyring at [52]. Indeed, vexatious proceedings have been described as being damaging to the public interest as they are a drain on court resources: A-G v Bar-Mordecai 2009 at [14] citing Bhamjee v Forsdick (No 2) [2003] EWCA Civ 1113 at 92 [9].

12. [28]

    The operative provisions for present purposes are ss 14, 15 and 16 of the Act. Section 14 of the Act relevantly reads:

13. [29]

    Section 15 of the Act outlines the circumstances in which an application for leave to institute proceedings must be dismissed, and reads:

14. [30]

    Section 16 of the Act outlines the power of the Court to grant an application for leave, and relevantly reads:

15. [31]

    As was noted by Basten JA in Bar-Mordecai v Attorney-General (NSW) (2012) 83 NSWLR 125 (“Bar-Mordecai v A-G 2012”) at [17]:

16. [32]

    In Bar-Mordecai v A-G 2012 at [16] Basten JA proposed that the structure of ss 14 to 15 of the Act “may be understood as involving, but not necessarily imposing, a three stage structure”. That structure was said to be:

    1. (1)

       the applicant files an application with an affidavit complying with s 14(3) of the Act;

    2. (2)

       the court considers whether to dismiss the application under s 15 or make an order for service on each relevant person under s 16(1)(a) of the Act; and

    3. (3)

       the court conducts a hearing under s 16(1)(b) of the Act and decides whether to dismiss or grant the application.

17. [33]

    The three stage approach is the same that was taken in A-G v Bar-Mordecai 2009 by Johnson J at [7] who opined that:

18. [34]

    The three stage approach was followed by Campbell J in Macatangay v New South Wales Department of Education and Training [2015] NSWSC 1745 at [9] where citing Bar-Mordecai v A-G 2012 at [17] he stated: “I am prepared to assume that even where the Court is initially minded not to order service because s 15 is engaged, it is required to offer the applicant a hearing before dismissing the application’”.

19. [35]

    Conversely, in Re Freeman [2008] QSC 200, which concerned the Vexatious Proceedings Act 2005 (QLD) (the Queensland equivalent of the Act), at [10]-[12] Martin J dismissed an application for leave under s 12 (the equivalent of s 15 of the Act) without directing service of the application.

20. [36]

    Interestingly, in Bar-Mordecai v A-G 2012 Basten JA contemplates the possibility of a dismissal on the papers and without hearing at [53]:

21. [37]

    The legislative uncertainty regarding the question of whether a hearing is required before an application under s 14 of the Act can be dismissed under s 15 of the Act has been resolved by the Vexatious Proceedings Amendment (Statutory Review) Act 2018 No 1 (NSW) (assented to on 20 February 2018).

22. [38]

    Amongst the amendments made was the omission of the old s 15(2) of the Act which read:

23. [39]

    Given there is no requirement for the applicant to be offered a hearing, I do not propose to offer her one, and instead will deal with her application within the four walls of the voluminous material she has already provided. Following examination of the 3 A4 binders and 2 USB sticks (containing some 120 PDFs) provided in support of this application, it does not appear that the applicant has provided any submissions directly addressing why leave should be granted. It is not incumbent on this Court to require submissions, especially given the volume of material already provided. In the interests of justice, and in order to take the applicant’s application at its highest, where they are relevant, I will treat the particulars of the summons, the amended summons and the arguments and opinions set out in the applicant’s affidavits as the surrogate of the submissions she would wish to make.

24. [40]

    Annexed to the summons is an affidavit of the applicant sworn and filed 3 May 2021 (“Clarke Aff 3/5/21”) which states at [3]-[5]:

25. [41]

    Although the 11 November 21 email which attached the amended summons reads: “Two further affidavits support this application is to sworn and returned during the course of today”. Neither of these affidavits can be located in the material the applicant has provided to this Court. Amongst the documents contained in one of the USB sticks provided is an affidavit of the applicant dated 17 November 2021 which relevantly reads at [3] and [5]:

26. [42]

    I can only presume that the 13 November 2021 affidavits to which the applicant refers are the same as those referred to in the 11 November 21 email. As previously stated, there have been no affidavits supporting the amended summons located within the voluminous material provided by the applicant. I am therefore bound to rely on Clarke Aff 3/5/21 as the affidavit required by s14(3) of the Act.

27. [43]

    Section 15(1) of the Act outlines three circumstances in which an application under s 14 of the Act must be dismissed. They are (a) if the affidavit required pursuant to s 14(3) of the Act does not substantially comply with that section, (b) if the proceedings are vexatious, or (c) if there is no prima facie ground for the proceedings.

28. [44]

    In order to comply with s 14(3) the affidavit filed with the application must (a) list all occasions on which the applicant has applied for leave under s 14 of the Act, (b) list all other proceedings the applicant has instituted in Australia, and (c) disclose all facts which are material to the application that are known to the applicant.

29. [45]

    It is worth noting at this juncture that Clarke Aff 3/5/21 appears to have been prepared without the benefit of legal assistance which is unsurprising as the applicant is unrepresented. The consequence however is that it is a largely confusing document. For example it contains only one heading “Leave applications” following which there are some 47 paragraphs, of which only the first three appear to be directed at the occasions on which the applicant has applied for leave, whilst the others appear to contain a number of allegations against various parties or are references to pieces of evidence or legislation. However, given the applicant’s lack of legal assistance, I have done my best to assess Clarke Aff 3/5/21 by taking it at its highest.

30. [46]

    In my opinion, Clarke Aff 3/5/21 does not comply with the requirements in s 14(3) of the Act as it firstly does not “disclose all facts material to the application, whether supporting or adverse to the application, that are known to the applicant” and instead is a recital of the facts the applicant contends support her claim. An example can be found at [15]-[16] which reads:

31. [47]

    As noted by Schmidt AJ in SESLHD v Clarke (at [72]), in 2008 after the applicant was dismissed from her employment at Prince of Wales Hospital the Nurses Association, she brought proceedings claiming she had been unfairly dismissed: Sharmain Naicker and NSW Health Service – Government of New South Wales for South Eastern Sydney Illawarra Area Health Service [2008] NSWIRComm 1104. The application was dismissed, however the fact that it was dismissed is not mentioned in Clarke Aff 3/5/21. Indeed, the applicant appears to have avoided deposing that adverse fact in her affidavit, and instead has merely repeated a number of allegations she has previously made.

32. [48]

    A second complication with Clarke Aff 3/5/21 is that it does not “list all other proceedings the applicant has instituted in Australia”. As per the orders of Schmidt AJ in SESLHD v Clarke at [141] the applicant has been involved in at least 28 Australian proceedings, however Clarke Aff 3/5/21, although it refers to some of the proceedings, certainly does not list all of them. There does not appear to be any other affidavit material filed that would have the effect of overcoming this defect.

33. [49]

    Given these two matters I consider that I must dismiss this application as required by s 15(1)(a) of the Act.

34. [50]

    Even if the findings I have made pursuant to s 15(1)(a) of the Act are incorrect, it is my opinion that these proceedings are vexatious. The reason for my arrival at this conclusion is twofold.

35. [51]

    Firstly, the applicant seems to be seeking to agitate points that have already been decided against her in a number of matters. For example, in Clarke Aff 3/5/21 at [26] the applicant deposes:

36. [52]

    As noted by Schmidt AJ in SESLHD v Clarke (at [103]-[104]) in 2018 the applicant brought proceedings in the District Court of New South Wales in slander against Ms Fenn about her telephone communication with the Nursing Council as part of its investigation of a complaint against the applicant. In Clarke v Fenn [2018] NSWDC 336 Gibson DCJ ordered that the proceedings be struck out and dismissed as Ms Fenn was protected under the principles of immunity from suit at common law, under s 27 of the Defamation Act 2005 (NSW) and by privilege. The re-agitation of this matter seemingly serves no purpose but vexation.

37. [53]

    Secondly, it is my opinion that the amended summons accurately demonstrates that the proceedings are vexatious. The applicant is ostensibly seeking every order she could think of, enlarging her summons by some 29 paragraphs. There does not appear to be any basis for this quite significant enlargement other than vexation and none is demonstrated.

38. [54]

    As a consequence, I consider that I am bound to dismiss the application pursuant to s 15(1)(b) of the Act.

39. [55]

    It is not strictly necessary to make a determination under s 15(1)(c) of the Act given the findings above. However, it may be observed that there is no prima facie ground for the purposes of s 15(1)(c) of the Act shown.

40. [56]

    As previously stated, the applicant has submitted a vast amount of material which is generally in a disaggregated form, and the affidavits which have been provided deal with an eclectic mix of topics. If attention is focused upon the particulars there are no prima facie grounds that would establish, for the purposes of the amended summons, a case in Negligence (having regard to the provisions of the Civil Liability Act, or if an action for personal injury is asserted, such an action. Nor is there a prima facie ground that would establish an action for judicial review of Clarke v Nursing and Midwifery Council New South Wales [2021] NSWCATOD 32. In the broadest sense there would appear to be no grounds for judicial review other than procedural fairness and those contentions, such as they are, do not overcome the test in s 15(1)(c) of the Act. Further, it is quite unclear how the application may bring actions under the Crimes Act 1900 (NSW) either as a matter of locus standi or vis a vis the establishment of a cause of action. As to the large number of other orders sought, no further particulars have been provided and there appears to be no reasons for the enlargement of the leave sought.

41. [57]

    Having regard to the applicant’s self-represented status, the Court has looked to the materials filed to attempt to glean if there may be some other basis for the orders sought, but there is none that are evident. As a consequence, I am of the opinion that I must dismiss the application pursuant to s 15(1)(c) of the Act.

Conclusion

1. [58]

   The Court orders that the application for leave to institute proceedings be dismissed under s 15 of the Act.