Clarke (previously Naicker) v Herrick

The first Statement of Claim, filed on 15 August 2016

1. As noted above, the plaintiff's claim was originally for six causes of action by the plaintiff in the Statement of Claim she drafted for herself. The pleading is confusing, as it refers to administrative law, constructive dismissal, "defamation", coercion, corruption and makes a general claim that the plaintiff's "name was tarnished".
2. The relevant details appear to be those set out in the sixth paragraph of the Statement of Claim (Exhibit D), describe the circumstances in which the plaintiff was stood down from her position as a nurse: "I was a manager of the operating suite after hours for the Royal Hospital for Women Theatres Amalgamated, and then I was provided with a new contract to come onto the [eligible] (9 May 2013). The environment was Recovery. I am a theatre trained nurse from ACU (2005). Julie Herrick premeditated [sic] with Sue Dale and Virginia King how, what and why my career pathway was to be attacked. The Royal Hospital for Women was highly toxic. Policies plus protocols plus guidelines were not being followed. Patients were overdosed by Virginia King and Julie Herrick was sic] not responding to Sue Dale falsifying [illegible] for patients who were totally unconscious."
3. Judging by the other information in this pleading, at least some of the unidentified defamatory publications by the defendants occurred at a period at or before the time when the plaintiff was stood down from her position, namely on 5 May 2015. They could have been made afterwards as well. The absence of dates creates difficulties.
4. The claims against the three defendants Julie Herrick, Susan Dale and Virginia King, are not limited to defamation. References to the identity of any "defendant" in the pleading can be summarised as follows: 1. In paragraph 2, there is a reference to the "respondent" bringing about the plaintiff's "constructive dismissal", which is followed by a claim of "defamation, coercion and corruption (no deed was signed) - authority bodies mentioned funds to be returned. Name was tarnished". 2. There is also a reference to "The Royal Hospital for Women" in relation to an asserted claim for discrimination on the basis of disability, followed by a complaint of a process which was "corrupt and specifically orchestrated to undermine my reputation and taint my professionalism", although without identifying those involved. 3. The plaintiff complains, in the context of the Fair Work Act 2009 (Cth), about "repeated" and "unreasonable" conduct by Julie Herrick, Susan Dale and Virginia King in paragraph 4; 4. There are references in paragraphs 5 and 6 to the plaintiff being repeatedly bullied, harassed, victimised and then dismissed after raising health and safety complaints and to the specific conduct of Julie Herrick, Susan Dale and Virginia King (in paragraph 6).
5. No specific publication by any of the three named defendants was identified, let alone attached, and no imputations were pleaded. No date(s) of publication was/were given, although the plaintiff appears, from this pleading, to blame the three named defendants for a campaign of complaint and vilification leading to her being sacked at a hearing in 2015, suggestive of a date or dates before that time for such publications. In those circumstances, it is hard to see how the pleadings in this claim this could amount to an actionable claim for defamation at all: Emmerton v University of Sydney [1970] 2 NSWR 633.

The Amended Statement of Claim filed on 27 March 2017

1. The Amended Statement of Claim drafted by Mr Robison is a very different document. It describes the defendants as follows: "3. At all material times the defendants were employed as nurses by the South Eastern Sydney Local Health District (or its predecessor entities) at the Royal Hospital for Women."
2. The Amended Statement of Claim then goes on to state that "[i]n 2015, the defendants published, or caused to be published, a complaint to the to the [sic] Nursing & Midwifery Council of New South Wales, "the matter complained of"."
3. This is followed by a series of imputations which appear to have been drawn more or less directly from Exhibit B, a confidential letter addressed to the plaintiff which sets out that the Nursing & Midwifery Council was considering information provided to them from Ms Madunic, Acting Director of Operations, Royal Hospital for Women, dated 21 August 2015, which attaches a Section 150 Proceedings, Health Practitioner Regulation National Law (NSW) "background document".
4. That document contains two important pieces of information. First, it refers to a number of the allegations identified in the imputations, such as the contents of paragraph 28, each of which mirrors the language of the imputations. The pleaded imputations are as follows: 1. That the plaintiff was incompetent as a nurse; 2. That the plaintiff required supervision as a nurse; 3. That the plaintiff presented a risk to the health and safety of patients; 4. That the health and safety of patients necessitated that the plaintiff have restrictions placed upon her; 5. That the health and safety of patients necessitated that the plaintiff undergo additional training; 6. That the plaintiff had a mental health disorder; 7. That the plaintiff's performance as a nurse was below acceptable standards including in relation to: 1. Communication regarding clinical handover; 2. Fabrication of patient observations; 3. Unprofessional communication with staff; 4. Failure to receive constructive feedback; 5. Inability to calculate correct drug dosages; 6. Inappropriate oxygen administration.
5. Second, the complaint document clearly refers to Ms Madunic by name as the person formally bringing the complaint to the relevant authority.
6. Despite the clear references to Ms Madunic in the documents provided to the plaintiff in September 2015, the claim as pleaded was continued against the three named defendants who, as is noted above, are referred to in paragraphs 3 and 4 as being employees of the South Eastern Sydney Local Health District and as having caused to be published or published the relevant complaint.
7. A significant lacuna in the amended statement of claim is the absence of the matter complained of, which is neither attached nor described, beyond a reference to it having been published "in 2015", according to paragraph 4. (As noted above, apart from a reference to the plaintiff having been stood down for a period which ended on 5 May 2015, there were no references in the original Statement of Claim to the date of publication.)
8. Does the reference to a complaint made "in 2015" identify the documents set out in the confidential letter addressed to the plaintiff (Exhibit B in these proceedings), or to the matter complained of attached to the proposed new pleading, or to the complaints about the plaintiff made by others leading up to the bringing of that complaint, such as the three named defendants?
9. The first difficulty for the plaintiff is that the Amended Statement of Claim drafted by Mr Robison continued the claim against the three named fellow nurses, even though he and the plaintiff had access to the complaint documents upon which the plaintiff now wishes to sue. Reading Mr Robison's pleadings, the subject matter of the claim appears to be these women's underlying complains, and not the actual complaint lodged by Ms Madunic which repeated this information.
10. The second difficulty is that the matter complained of currently before the court is not simply the complaint document signed by Ms Madunic (which the plaintiff acknowledges she received at the time), but the entire file produced under subpoena.

The proposed Further Amended Statement of Claim

1. I first make a preliminary observation. For reasons which were never made clear, a proposed Further Amended Statement of Claim leaving Ms Dale as the second defendant (in relation to the assault) and pleading that the defamatory publication was made by the first defendant (South Eastern Sydney Local Health District) was tendered on this application (Exhibit F). However, I was asked instead to consider another Further Amended Statement of Claim setting out that the proposed new first defendant, Ms Madunic, published the matter complained of and relied upon joinder of South Eastern Sydney Local Health District as the second defendant (as well as Susan Dale as the third defendant) was also the defendant in the proceedings for assault. The matter complained of in both cases is the same document, namely the 69 pages of material produced under subpoena.
2. These differences in the identity of the defendants in the two pleadings remain unexplained. However, as the argument before me went ahead on the basis that the plaintiff wishes to bring her defamation action against Ms Madunic alone, I have proceeded on the basis that the draft statement of claim referred to by the parties in argument (naming Ms Madunic as the sole defendant in the defamation proceedings) is the current proposed amended statement of claim.
3. This finally brings me to the setting out of the current Further Amended Statement of Claim, the document embodying the plaintiff's proposed amendments.
4. First, this document changes the parties' names and descriptions as follows: "PART A - GENERAL 1. The plaintiff is a natural person entitled to sue. 2. The first defendant is a natural person and able to be sued. 3. The second defendant, the South Eastern Sydney Local Health District is a body corporate established under section 17 of the Health Services Act 1997 (NSW) and able to sue and be sued. 4. The third defendant is a natural person who was at all material times was an employee of the second defendant."
5. This means that Susan Dale is retained as a defendant for the assault claim but the other two named defendants are no longer the subject of proceedings.
6. The only defendant against whom the defamation claim the subject of this application is brought is the first defendant named in the proposed Further Amended Statement of Claim, Ms Madunic. She is not sued for a "complaint" but for an email which attaches a number of copied documents all of which were produced under subpoena.
7. I set out the defamation claim in full: "PART B - DEFAMATION 5. On or about 17 September 2015, the first defendant published, or caused to be published, an email, which attached a number of copy documents specified in the email, to the Nursing & Midwifery Council of New South Wales 'the matter complained of' a copy of which is annexed to this pleading and marked 'A'. 6. The matter complained of was defamatory of the plaintiff and in its natural and ordinary meaning conveyed the following imputations: a. The plaintiff is so professionally incompetent that she is not fit to practice as a Registered Nurse. (Page4/ paragraphs 4-9, 6/8, 71-4, 48/1, 49/2, 63/2-16, 64/1-7, 65/6 and 67/5). b. The plaintiff is so professionally incompetent as a Registered Nurse that she is a danger to patients (4/4-9, 6/8, 71-4, 48/11, 49/2, 63/2-16, 64/1-7, 65/6, 67/5 and 68/6-8). c. The plaintiff as a Registered Nurse, consistently failed to correctly calculate correct drug doses for patients which put patients at serious risk of harm (8/7, 17/4-7, 18/3, 21/4-7, 22/8, 24/7, 63/16 and 652-3). d. The plaintiff as a Registered Nurse, refused to listen to advice or constructive feedback from professional colleagues which put patients at serious risk of harm (8/8, 9/4-7, 10/6-7, 16/7-12, 19/6-10, 20/4, 31/6, 50/7, 57/5-6, 58/4-9, 59/4-12, 66/7 and 67/5). e. The plaintiff as a Registered Nurse, consistently failed to adhere to basic nursing practice (8/7, 17/4-7, 18/3, 21/4-7, 22/8, 24/7, 25/8, 27/8, 29/3, 31/11, 37/4, 38/7, 39/4, 40/12, 42/8, 48/11, 49/2, 50/5-7, 52/5-6, 54/4-5, 59/4-12, 60/2, 62/5-10, 63/2-16, 64/1-7, 65/6, 66/7-8, 67/5-8 and 68/6-8). 7. By reason of the above, the plaintiff has suffered serious hurt and loss and damage. Particulars of damage a. The plaintiff has been injured in her credit and reputation; b. The plaintiff has suffered hurt and embarrassment; c. The plaintiff's employment prospects of a nurse or otherwise have been severely diminished; d. The plaintiff will continue to suffer loss and damage."
8. As the imputations set out above (and the portions of the matter complained of asserted to give rise to them) demonstrate, the material relied upon goes beyond the letter of complaint signed by Ms Madunic to extend to all the documents provided by Ms Madunic to the Nursing & Midwifery Council on 17 September 2015.
9. The 69 pages which are attached to the statement of claim consist of documents from the complaint file as produced on subpoena. A brief description of this document, and the plaintiff's prior knowledge of it, is therefore necessary.
10. The matter complained of commences with Ms Madunic's email to the Nursing & Midwifery Council of 17 September 2015 in response to a request from the Nursing & Midwifery Council of 9 September 2015, addressed to Ms Madunic. This document is then followed by the results of the plaintiff's assessment, a lengthy document which is signed (on page 69) by both the assessor and Ms Madunic, who authorises it. As Exhibit B demonstrates, the plaintiff must have known about Ms Madunic's role as the person who lodged the complaint almost immediately, in that Exhibit B, which is addressed to the plaintiff personally, contains a bundle of documents under cover of Ms Madunic's email dated 18 September 2015.
11. The newly-added matter complained of does refer to complaints made by the first defendant, Ms Julie Herrick. On page 8 (at point 7) and page 66, Ms Julie Herrick is named as having complained that the plaintiff refused to listen to constructive advice or constructive feedback which put the patients at risk (imputation (d)). As the plaintiff's line manager, Ms Herrick is clearly the complaining person in relation to most of the complaints made of and concerning the plaintiff by unnamed "staff members", as well as being named in relation to the "bullying" claim the plaintiff made in 2013 which was referred to in the original statement of claim.
12. I was not told the identity of the "Nursing Co-Director Gynaecology Services" who signed the report on its last page (page 69 of the matter complained of), or whether that is one of the defendants, but this person is clearly the author of the report which Ms Madunic authorised. The third defendant, Ms Dale, is also the person who allegedly assaulted the plaintiff 14 times, but is not named in the matter complained of.
13. The plaintiff produced (Exhibit B) a series of documents (acknowledging the handwriting on them was hers) in the course of her oral evidence. These documents repeatedly identify Ms Madunic as the author of the 17 September 2017 complaint. Paragraph 8 of this document states: "8. On 17 September 2015, the Council received further information from Vanessa Madunic, Acting Director of Operations, Royal Hospital for Women (RHW), providing clarification that the performance issues identified included medication safety, poor communication, inappropriate responses to an emergency situation and inappropriate oxygen administration (ex 3)."
14. The plaintiff explained that she had overlooked receiving these documents, in circumstances she twice described as "a huge mistake", because of her emotional stress.
15. Paragraph 28 of this document states: "Is Ms Naicker's performance within accepted standards? 28. Ms Naiker's ex-employer has expressed concerns on Ms Naicker's performance which includes (ex 3): - Poor communication re clinical handover - Fabrication of patient observations - Pool clinical decision making - Unprofessional communication with staff - Failure to receive constructive feedback - Inability to calculate correct drug dosages - Inappropriate oxygen administration"
16. Each of these items had been ticked off by the plaintiff when she read this letter. She acknowledged this in her oral evidence. The similarity of this document to Mr Robison's draft of the imputations in the 27 March 2017 pleading is immediately clear. This means that Mr Robison, as well as the plaintiff, must have seen this document when the 27 March 2017 statement of claim was being drafted. Whether they saw this document on subpoena or as a result of the plaintiff locating her own copy is irrelevant.
17. What this means is that the plaintiff must be taken to have known (even if she subsequently forgot, due to her level of distress concerning these proceedings) that Ms Madunic, the proposed new defendant, had published the email sent to the Nursing & Midwifery Council on 17 September 2015, both when she received that letter at the time and when she saw the documents under subpoena in March 2017.
18. The plaintiff's explanation for overlooking this was set out in her affidavit in support of the application as well as in her oral evidence. This evidence is relevant to the issue of "misnomer" for the purposes of s 65(2)(b).

The plaintiff's evidence

1. The plaintiff provided an affidavit sworn on 4 September 2017 in support of her application for leave to amend and gave evidence which was not the subject of cross-examination.
2. In her affidavit, the plaintiff sets out the circumstances in which she issued a subpoena at the beginning of 2017 to the Nursing & Midwifery Council of New South Wales for the complaint and describes how she gave copies of the documents she obtained under subpoena to her pro bono counsel, who was then successful in opposing the strike out application and in obtaining leave to amend. Mr Robison completed his pro bono task by drafting and filing the Amended Statement of Claim and the plaintiff obtained further leave for pro bono assistance which resulted in Mr Potter acting for her.
3. The plaintiff's position first was that she had no prior knowledge of any involvement by Ms Madunic. She states in paragraph 11: "11. Prior to my attendance at the court registry to inspect the documents subpoenaed from NMC, I was not aware that Ms Madunic had published the email and accompanying documents to NMC. At that stage of inspection (March 2017), the limitation period had already expired (17 September 2016)."
4. She goes on to say in paragraph 12: "12. Also prior to that time I had not seen any of the documents contained in annexure A save for the letter addressed to me - I was never given copies of the Risk Assessment forms and therefore did not know their specific content."
5. However, she acknowledges in paragraph 13: "13. Since making this application to amend, I have recently looked at all the records I had in my possession prior to commencement of proceedings. I came across a letter from the NMC dated 30 November 2015 which contained the Reasons for their decision to impose conditions upon my registration. A copy of this document is annexed and marked 'C'. I now see that the document annexed to those reasons which states Appendix A exhibits [sic] states [sic] that Vanessa Madunic is the 'current complainant'. Neither the complaint itself nor its attachments were provided before I saw them in the subpoenaed documents."
6. The plaintiff's explanation is her distress and depression resulting from her workplace difficulties: "14. At the time I received the letter at Annexure C (November 2015) I was very unwell as I could not get back to work. I suffered depression and reactive anxiety (panic attacks) as a result of my workplace issues. I have no recollection of reading this information and it is only now going back though [sic] my records, that I came across this reference. Had I been aware of it then I would have commenced proceedings against the correct complainant."
7. The plaintiff also sets out that prior to receiving pro bono advice from counsel at some unspecified time in 2017, she did not know that the limitation period for defamation was one year. She states that her intention has always been "to take proceedings against the person or persons who had made the complaint against me to the NMC" (paragraph 17).
8. It is unclear whether Mr Robison provided advice to the plaintiff that the limitation period for defamation actions was one year, but I consider it more likely that not that, when the plaintiff's claim was crystallised into a claim for defamation, she would have become aware that this was the case.
9. I do not have a copy of the judgment dismissing the defendants' application for summary disposal of this claim. I do not know whether the limitation period argument was raised or what explanation was given for the absence of the matter complained of, or whether the absence of this document meant that the plaintiff had not brought proceedings within time. It is at least arguable that the limitation period against any new party (such as Ms Madunic) had expired prior to leave to amend being granted on 27 March 2017, but this is not an issue for me to determine, any more than whether the current statement of claim falls outside the limitation period, as the plaintiff has abandoned her application for an extension of time to commence proceedings. I have, however, set out this long history of what documents and information the plaintiff had in her possession because these are matters relevant to the issue of misnomer.
10. As the agreed issues before the Court confirm (see paragraph 6(a) - 5(e) above), the plaintiff only seeks leave to amend to replace the three named defendants by the name of the person who filed the complaint, Ms Madunic, on the basis of a misnomer for the purposes of s 65(2)(b) Civil Procedure Act 2005 (NSW), and not to continue to claim against the three named defendants. Her explanation is that because she always intended to sue the person who brought the complaint, as opposed to the persons who made the allegations against her at some earlier period in time, her joinder of the three currently named defendants was an error in the name of the author. However, the plaintiff never made her position clear about what she would do if leave to amend were refused. Would this be the end of the plaintiff's defamation claim entirely, or would the plaintiff wish to continue the claim against, for example, Ms Herrick, who is named in the portions of the matter complained of in relation to at least one of the imputations? That is one of many uncertainties in this application.

The plaintiff's submissions

1. The plaintiff's application is principally brought under s 65(2)(b). Section 65(2)(b) Civil Procedure Act 2005 (NSW) provides: "65 Amendment of originating process after expiry of limitation period … (2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as: … (b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court's opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or …"
2. Mr Potter submits, and I accept, that the power to grant leave to amend in the case of misnomer is one which should be given a broad interpretation where a plaintiff has made a genuine mistake as to the correct identity of the defendant. The landmark decision is Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 where McHugh J at 260 states: "The concluding words of subR(4) "whether or not the effect is to substitute another person as a party" enable a plaintiff to substitute one person for another person as a party to the action. Those words also imply that the fact that the plaintiff intended to sue the person who was sued does not prevent the sub-rule applying provided that there was a mistake in the name of the person sued. Moreover, a plaintiff may make "a mistake in the name of a party" not only because the plaintiff mistakenly believes that a certain person, whom the plaintiff can otherwise identify, bears a certain name but also because the plaintiff mistakenly believes that a person who answers a particular description bears a certain name. Thus, a plaintiff may make a mistake "in the name of a party" because, although intending to sue a particular person whom the plaintiff knows by sight, the plaintiff is mistaken as to that person's name. Equally, the plaintiff may make a mistake "in the name of a party" because, although intending to sue a person whom the plaintiff knows by a particular description, e.g. the driver of a certain car, the plaintiff is mistaken as to the name of the person who answers that description. In both cases, the plaintiff knows the person intended to be sued by reference to some property or properties which is or are peculiar to that person but is mistaken as to the name of that person. In the first case, the properties which identify the person are personal characteristics; in the second case, they are the properties which are of the essence of the description of that person. But for the purpose of subR(4) that distinction is irrelevant. In both cases, the plaintiff was mistaken only as to the name of the person intended to be sued. There is no warrant for treating subR(4) as dealing only with the case where the properties which identify the party are inherent properties. That is, there is no warrant for treating subR(4) as dealing only with the case where the plaintiff says: "The person I wish to substitute as a party is that entity which I identified by certain inherent properties peculiar to it but whose name I mistakenly believed was X". The sub-rule applies equally to the case where the plaintiff says: "The person I wish to substitute as a party is that entity which I identified by reference to certain properties which are true of it and of no one else and whose name I mistakenly believed was X". In both cases, a mistake in the name of the party has occurred and can be seen to have occurred only because the person sued does not have or is not identified by some property or properties which is or are peculiar to the person intended to be sued and to no one else. O.36.01(4) is a remedial rule and should be given a beneficial interpretation. It is proper to give it the widest interpretation which its language will permit. It should be interpreted to cover not only cases of misnomer, clerical error and misdescription but also cases where the plaintiff, intending to sue a person he or she identifies by a particular description, was mistaken as to the name of the person who answers that description. In my opinion, Evans v Charrington and Lloyd Steel were correctly decided." (Footnotes omitted)
3. The application of s 65(2)(b) to such circumstances was more recently considered by Brereton J in In the matter of RCG CBD Pty Ltd [2016] NSWSC 1937 where his Honour stated at [13]: "[13] At [21], His Honour observed that the rule was a remedial one to be given a wide interpretation, and that it should be interpreted to cover not only cases of misnomer, clerical error and misdescription, but also cases where the plaintiff, intending to sue a person he or she identifies by a particular description, was mistaken as to the name of the person who answers that description. Consequently, His Honour said that the rule had three limitations on a person's right to amend: first, that there must be a mistake; secondly, that it must be in the name of a party; and, thirdly, that the Court must be satisfied that no other party to the proceeding would be prejudiced in the conduct of his or her claim or defence in a way that could not fairly be met by an adjournment, costs or otherwise."
4. Mr Potter focuses his attention on the reference to the word "complaint" in the Amended Statement of Claim (at paragraph 4) and submits that there is no evidence of any other complaint besides that which was produced by the Nursing & Midwifery Council pursuant to the subpoena. In those circumstances, it is submitted, I should find that the clear intention of the plaintiff was to commence proceedings for defamation for publication of Ms Madunic's complaint, as opposed to the complaints made to Ms Madunic and other persons in the hospital which resulted in Ms Madunic collating documents setting out a series of complaints about the plaintiff.
5. This requires consideration not only of the statement of claim in its current form, but the claims brought against the three individual defendants as set out in the initial statement of claim. Who did the plaintiff intend to sue, and for what publication?
6. Mr Potter submitted that part of the problem was that Mr Robison, who was very frank in his admissions to the plaintiff about not being expert in defamation, had missed this point, and that this may be the explanation for the inadequacies in the Amended Statement of Claim and the circumstances in which the three named defendants remained on the record as the publishers of the "complaint" as opposed to Ms Madunic, who collated the documents in question.
7. I do not agree with this analysis. The three named defendants are nurses who are colleagues of the plaintiff and, as I understand her first Statement of Claim, she sees them as the source for her problems, in that they conspired to damage her career pathway by false allegations.
8. What Ms Madunic did was to collate the documents prepared by others and to endorse the assessment carried out by the Nursing Co-Director (p. 69). She is not the initiator of the accusations against the plaintiff from her own observation; she essentially collated and endorsed the allegations and/or observations of others. As such, she may have the benefit of defences not available to the persons who actually made the allegations, who may have been motivated by malice: Drinkwater v Barwon Health Services & Butler (Supreme Court of New South Wales, Levine J, 27 June 1996).
9. The three named defendants were never the publishers of the email initiating the complaint which is annexed to the proposed Amended Statement of Claim. As Mr Sibtain points out in his written submissions at paragraph 8, the plaintiff knew as early as 30 November 2015 that they had played no role in the preparation or publication of this formal document. The factual events referred to in the original statement of claim referred to their conduct and not to the subsequent complaint which was filed.
10. The plaintiff's "huge mistake" was identified by her as being a realisation she had when she personally served documents upon the three currently named defendants and saw Ms Madunic, who looked familiar. This may have been because of the complaints process or because of Ms Madunic's role in approving the risk assessment carried out by the Nursing Co-Director for Gynaecology Services (see p. 69 of the proposed Further Amended Statement of Claim). Whatever the reason, she recognised Ms Madunic as a familiar face but nevertheless went ahead with the proceedings against the three named defendants.
11. All of the evidence points to the plaintiff wishing to commence proceedings about the conduct of the three defendants in conspiring to damage her reputation and end her career by a campaign of harassment, complaint and assault (I note the allegations that Ms Dale assaulted her on 14 occasions between May 2013 and 1 July 2014). That makes it difficult for the plaintiff to assert, in seeking leave to replead her case to identify Ms Madunic's written complaint of 17 September 2015 as the relevant publication, that she has made a mistake as to the identity of the author of the complaint, as opposed to seeking to bring fresh proceedings for a third party that would otherwise be out of time.
12. Mr Potter's s 65(2)(b) submission, on the basis of misnomer, is made upon the principles set out above, namely that the plaintiff always intended to sue the person who made the complaint who is "now known to be Ms Madunic" (paragraph 17, written submissions). There is no suggestion of any other complaints besides that which was produced by the Nursing & Midwifery Council of NSW pursuant to the subpoena.

Sections 64 and 65(1)(c) Civil Procedure Act 2005 (NSW)

1. Alternatively, if the court determines that the claim is a new cause of action, the plaintiff relies upon s 65(1)(c) Civil Procedure Act so that, pursuant to sub-s (3), the amendment would have the effect from the date of commencement of the proceedings, namely within the limitation period (written submissions, paragraph 25). Mr Potter submits that it is unarguable that this new cause of action would arise from the same or substantially the same facts as those giving rise to the existing cause of action and relief (see New South Wales v Radford (2010) 79 NSWLR 327 at [72]).
2. Finally, Mr Potter notes that proceedings were commenced on 15 August 2016 in relation to a publication made on 17 September 2015 and the proceedings were therefore commenced within twelve months of the date of publication (s 14B Limitation Act 1969 (NSW)), although the publication in question was neither attached nor referred to in the plaintiff's initiating statement of claim. The reference in the Amended Statement of Claim filed on 27 March 2017 to "a complaint" made in 2015 to the Nursing & Midwifery Council should be sufficient to demonstrate that the plaintiff is not adding any new cause of action, but simply providing "flesh to the existing pleading by properly particularising the actual publication relied upon". On this basis, it is submitted that leave to amend to include the matter complained of should be granted under s 64 Civil Procedure Act 2005 (NSW).

Consideration of the plaintiff's submissions

1. For the reasons set out below, I am satisfied that the plaintiff is seeking to bring a new defamation claim against a non-party in circumstances where neither s 65(2)(b) nor s 65(2)(c) Civil Procedure Act 2005 (NSW) can be engaged and where s 64 is inapplicable.
2. Great caution should be used when applying the provisions of s 65 to multiple causes of action, such as claims for defamation, as opposed to a claim for a single cause of action, such as a personal injury or negligence claim. For example, in Greenwood v Papademetri [2007] NSWCA 221, the pleaded claim was against the owner and occupier where the owner was misdescribed and the amendment was allowed because of the ability of the court to determine who the "owner" was.
3. However, where there may be a variety of potential defendants, the entitlement to amend become less clear. For example, in Sullivan v Van der Broek [1999] NSWSC 1177 where there were claims brought against five members of an unincorporated entity, no amendment was permitted to add further members. Windeyer J stated (at [9] - [11]): "[9] There is no doubt that the plaintiff intended to sue persons who were members of the Nambucca Valley Galah Day Committee, namely persons who fell within that particular description. On the other hand, the action would not fail if all persons who were members of the committee were not joined as defendants. An organisation is not the defendant. It is easy enough to make a mistake in the name of an employer or a landlord but it is difficult to see how a mistake in number can amount to a mistake in name. In fact the evidence upon which the application for amendment was made did not establish with any certainty that the nine persons now sought to be substituted as defendants were members of the committee or the only members of the committee. The difficulty for the plaintiff in the application before the Master and for that matter on this appeal, is that it has not been shown that there was any mistake in joinder of the original defendants. The plaintiff is still claiming that those defendants were members of the relevant committee. In other words, each answered a particular description as a member of the committee, but now it is alleged that other people answered that description as well. McInerney J pointed out in Greentree v G.D. Searle & Co (unreported 31 July 1992) that there is no reason why more than one party cannot be substituted for the one party originally named. He went on to say, however, when dealing with the question of substitution of parties, rather than adding parties:- "adding of parties normally includes the leaving of the original party in the action. In this case this is clearly a substitution of three parties for one party." [10] In Greentree the original defendant did not remain a party but three new defendants were named in substitution for the original defendant. The words quoted in the preceding paragraph accord with the decision of the Queensland Court of Appeal in Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2 Qd R 153, which held that the equivalent Queensland rule did not authorise addition of parties rather than substitution. A passage from the judgment of Toohey J in Bridge at p250 might give the impression that in Evans Constructions an order was made adding an additional defendant under the equivalent English rule. That did not happen. Such an order was made by the County Court Judge but this was corrected on appeal. In the present case there is no mistake in the names of the original five defendants and it is intended to leave them in, claiming that they were members of the committee. What the amendment seeks is to add four other persons whom it is also sought to say were members of the committee. In other words it is alleged in the amended claim, albeit not in appropriate words in accordance with the leave, that all nine defendants were members of the committee. It is not alleged that they were the only members of the committee or the members of the committee but "members of the committee". The defendants were separately named and separately numbered. I do not understand that a defendant A can be substituted for the same person A. In fact leaving the original defendants in makes it impossible to say there has been a mistake in name. The amendment does not fall within the categories of mistake to which McHugh J held the rule extended. [11] This seems a hard case but limitation cases often are and Limitation Acts have a proper purpose."
4. Windeyer J's observations were applied by Tobias JA in Greenwood v Papademetri at [72] - [75].
5. Particular care must be exercised in defamation proceedings where an application, outside the limitation period, to join another party whom the plaintiff had not considered suing before cannot be rescued from the strict defamation limitation provisions by an application to add a defendant under s 65, for the reasons set out by Simpson J in Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676.
6. All of the evidence points to the plaintiff bringing proceedings against three nurses with whom she had had difficulties during her employment and whom she believed to be responsible for allegations which led to her dismissal. I agree with the submission of the defendants that the fact that the plaintiff sued three persons and not one tends to indicate that she intended to sue each of them believing each had published defamatory comments about her, as opposed to the role Ms Madunic played as a person who made the formal complaint.
7. There is no evidence that the plaintiff took any step to confirm or identify the true publisher of the actual complaint letter of 17 September 2015 prior to commencement of proceedings by her against Julie Herrick, Susan Dale and Virginia King. They appear to be the persons who are the subject of her complaint by reason of their actions against her, not by reason of the contents of the complaint document which was prepared by Ms Madunic. In those circumstances, there cannot be a mistake of the kind contemplated by s 65(2)(b).
8. In addition, I am satisfied that the mistake fails to comply with the requirement in s 65(2)(b) that the mistake should not be misleading nor such as to cause reasonable doubt as to the identity of the person to be made a party. Unlike factual situations of the kind seen in Campbell v Boston (Supreme Court of New South Wales, Levine J, 17 February 1995 at p. 6), this is not a case where the existing or proposed defendants would have known that the plaintiff always intended to bring proceedings against Ms Madunic. To the contrary, the defendants would have understood the plaintiff's complaints about Ms Dale to have something to do with Ms Dale's own conduct, possibly referable in some way to the circumstances of the 14 assaults she is alleged to have committed.
9. Mr Sibtain submits, in my view correctly, that the fact that the plaintiff wants to replace three names with one is itself an indication of the change in her case from an action against her false accusers to her claim based on the bringing of the complaint by Ms Madunic. The plaintiff never delineated the basis upon which her claim was brought against each of the current defendants beyond pleading that each of them was an employed nurse and that one of them had assaulted her 14 times.
10. I am satisfied that the naming of the three defendants was not a misnomer and that, if it were, it was a mistake which is misleading and such as to cause reasonable doubt as to the identity of the person intended to be joined as a party. As noted below, I am further satisfied that, even if this were not the case, the leave of the court should not be granted for discretionary reasons. The joinder of the defendant, Ms Madunic, should not be permitted pursuant to s 65(2)(b).

Section 65(2)(c) Civil Procedure Act 2005 (NSW)

1. I am also satisfied that the new claim does not arise from the same or substantially the same facts as the plaintiff's original and first amended claim in defamation as required to satisfy s 65(2)(c).
2. The description of the three named defendants' conduct in the original Statement of Claim, even as formulated in the Amended Statement of Claim prepared by Mr Robison, appears to relate to different publications which resulted in the preparation of the complaint, as opposed to the actual letter of complaint. The nature of the cause of action for defamation is such that there must be real difficulties in satisfying s 65(2)(c) as being a cause of action which arises from "the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process" in that different issues of liability arise depending on the nature and extent of publication, its content and the circumstances in which it is made.
3. I also note that s 65(2)(c) is directed to the addition of a cause of action against an existing defendant, as opposed to a new defendant, as Simpson J notes in Ahmed v Harbour Radio Pty Ltd at [67].

Section 64 Civil Procedure Act

1. The plaintiff is seeking to join an additional defendant to raise a new claim in circumstances falling outside ss 65(2)(b) and 65(2)(c) Civil Procedure Act 2005 (NSW).
2. I am satisfied that if the application were made under s 64 Civil Procedure Act 2005 (NSW), it would be time-barred, and accordingly could not be permitted, having regard to the limitation period applicable for defamation actions.

The leave of the court

1. In the event that I have erred in my findings as to the applicability of ss 64 and 65 Civil Procedure Act 2005 (NSW), I also note that any amendment to a pleading requires leave of the court. The exercise of discretion to grant or refuse leave must follow the dictates of justice: ss 56-58 and 64(2) Civil Procedure Act 2005 (NSW). That means considering the nature and degree of any prejudice (which is not an issue here) and a range of other circumstances including the efficient conduct of proceedings pursuant to ss 56-62 (especially s 58(2) Civil Procedure Act.
2. If the application by the plaintiff did fall within the rubric of s 65(2)(b) and/or s 65(2)(c), would the dictates of justice be served by the addition of Ms Madunic in the place of the defendants? Mr Potter submitted it is just a change of name. Mr Sibtain submitted that the amendment should not be made because any claim against Ms Madunic was hopeless (see Drinkwater v Barwon Health Services & Butler) and that the plaintiff's concessions in the witness box meant there was no reasonable explanation for this late amendment, but there is no claim of prejudice beyond presumptive prejudice of the kind commonly made in relation to late amendment.
3. There is very little authority on this issue. In Greenwood v Papadimitriou Tobias JA (at [49] - [50]) noted this point had not been taken, although his Honour seems to have considered it should have been: "[49] I note that the Civil Procedure Act was enacted later than the Civil Liability (Personal Responsibility) Act. Thus, when s 65(5) says "this section has effect despite anything to the contrary in the Limitation Act 1969" it is talking about a Limitation Act that has already been recast by the Civil Liability (Personal Responsibility) Act. Thus, s 65(2)(b) can permit what is in substance an extension of a limitation period, even though that limitation period is incapable of extension under the Limitation Act itself. [50] The fact that ss 64 and 65 Civil Procedure Act between them provide the only means by which a limitation period for a cause of action founded on negligence, nuisance, or breach of duty for damages for personal injury can be extended, if the three-year post discoverability limitation period has expired, focuses attention upon the need for close examination of the appropriateness, in the circumstances of the particular case, of exercising the discretion that is provided by ss 64 and 65. However, as I have said earlier, no argument was based on discretion in the court below, or on the appeal. Any such discretionary argument could well take into account the facts that resulted in the limitation period having expired - ie, the facts by reference to which the cause of action was discoverable on a particular date. The issue of when this cause of action was discoverable was not litigated in the court below. Nor were arguments concerning culpability for the delay in starting the action, or prejudice. Thus, the approach that the parties have taken to this appeal means that it is being decided purely on the basis of the existence of the power under s 65(2)(b). I cannot help thinking that that is an artificially narrow basis, but it is a basis that the parties themselves have adopted."
4. The list of factors given by Tobias JA, when applied to the facts of this case, would support the refusal of leave. The cause of action was discoverable and the culpability for delay lies entirely on the plaintiff. There are special concerns in defamation proceedings, having regard to the very strict limitation provisions. Accordingly, I am of the view that, if I have erred in holding that leave to make the amendment of the parties' names should not have been granted, I would not have exercised my discretion to allow the amendment.

The other amendments to the statement of claim

1. The plaintiff has been granted leave to make the three amendments which are not in dispute.
2. The sole remaining question relates to the challenge to the attachment of Annexure "A" to the pleading; in the previous two pleadings, the matter complained of was not attached (in fact, it is arguable that it was not even identified, although this point was not taken).
3. I was not addressed as to what should happen to the matter complained of if I refused leave to amend to join Ms Madunic. The defendants challenged the amendment of the pleading to add Annexure "A", but solely on the basis that it was a document obtained under subpoena (written submissions, paragraph 19), citing Riddick v Thames Board Mills Ltd [1977] QB 881 and Sapphire (SA) Pty Ltd t/as River City Grain v Barry Smith Grains Pty Ltd (in liq) [2011] NSWSC 1451 at [173]-[200], as the plaintiff does not seek to use this document to advance the claim against the same defendant but against a new defendant (Barach v University of New South Wales [2011] NSWSC 1327 at [54]-[56]).
4. The plaintiff relied upon the exception to this rule set out in Miller v RL Polk & Co (Australia) Pty Ltd (New South Wales Supreme Court, Hunt J, 4 July 1985), namely for confirmation of information already known to the plaintiff, which was the basis upon which Hunt J distinguished Riddick v Thames Board Mills Ltd.
5. However, that flies in the face of the plaintiff's claim that she had forgotten about the existence of these documents as a result of her distressed state. If the purpose of issuing the subpoena was to booster the case against the three named defendants, in circumstances where the plaintiff had forgotten about what she knew about Ms Madunic, the defendants' argument concerning the unavailability of information obtained under subpoena, an argument the significance of which emerged only after the plaintiff gave her evidence.
6. The plaintiff's answer is that this document is "the 2015 complaint" referred to in the amended pleading of Mr Robison is this complaint and that, as that amendment was made within time, the plaintiff should be entitled to amend to attach the document to which the plaintiff was referring. The plaintiff's "huge mistake" in naming the wrong defendant should not prevent her from attaching the documents that should have been attached to the previous pleading. The defendants appear to accept that the document obtained under subpoena is the complaint the plaintiff was always planning to sue on, and in those circumstances the claim is not an abuse of the process of the court.
7. However, the plaintiff's other problem is that she wishes to sue Ms Madunic for this publication, not the three currently named defendants, as I understand her claim. If the plaintiff's case is "Ms Madunic or nobody", as I understand to be the case, then not only should I refuse her leave to amend her claim to replace the three named defendants but also leave to plead the matter complained of as well.
8. Unfortunately, the way the argument proceeded was that I was to determine the issue of whether leave should be granted to amend the names on the basis of misnomer, and not for the dismissal of the whole defamation claim on the basis that the plaintiff no longer wished to bring proceedings against the three named defendants at all. Striking out the matter complained of would amount to striking out the whole of the claim, which was an issue that was not argued before me.
9. Another problem is that the plaintiff does not in fact accept that the documents which form Annexure A in fact constitute all of the documents which should be produced in answer to the subpoena. She filed a Notice of Motion on 3 October 2017 seeking orders "in respect to a breach of subpoenaed material", adding that "the plaintiff provides a supporting affidavit depicting the core material/s which did not present [sic] in the subpoena". The affidavit of the plaintiff sets out documents which the plaintiff appears to say should have been contained in Annexure A as part of the matter complained of. It looks as though Annexure A is a work in progress.
10. By reason of the very late service on the party the subject of the subpoena, the South Eastern Local Health District, I was unable to deal with this Notice of Motion, but I am concerned that the identity of the matter complained of may still be the subject of challenge. This was a matter which, by reason of the lateness of the plaintiff's notice of motion, neither party has addressed. If the purpose of the notice of motion is to make further changes to the matter complained of and/or the parties or imputations, that will need to be addressed when (or if) the notice of motion is heard.
11. The complexities of the pleadings and changes of position by the plaintiff, rather than the oversight of counsel, are the reason for this situation. I have only been asked to determine the application for leave to amend the statement of claim and, in relation to the matter complained of, the fact that it was obtained on subpoena (which I have rejected) and was the subject of a complete defence of immunity from suit (an argument later abandoned).
12. It may be that the plaintiff wishes to continue her claim against one or more of the defendants based on the contents of Exhibit A. In the circumstances I shall err on the side of caution and leave the issue of the status of the matter complained of until I receive the further submissions of the parties and/or hear the plaintiff's application in her Notice of Motion dated 3 October 2017.

Conclusions

1. I have noted above that the plaintiff did not elaborate on what was to occur to the defamation claim if leave to commence proceedings against Ms Maduncic instead of the three currently named defendants were refused. If the plaintiff wishes to continue her defamation claim against one or more of the existing defendants, that claim will be the subject of case management, including any application by the defendants to strike out the proceedings in relation to one or all of the defendants and/or to strike out the matter complained of, as well as any application by the plaintiff to strike in additional parts of the publication and/or to proceed with her Notice of Motion.
2. However, the matter may only remain in the Defamation List while there is a claim on foot for defamation and the parties are advised that, if the defamation claim against the existing defendants is not to continue, these proceedings will be returned to the General List.
3. I was not addressed on costs. It is my view that costs should follow the event (r 42.1 Uniform Civil Procedure Rules 2005 (NSW)). Even if the plaintiff had been successful, her application to amend is the seeking of an indulgence, and parties who amend generally pay the costs occasioned thereby unless the application has been unreasonably opposed (which is not the case here). I have made an order for the plaintiff to pay the defendants' costs, but with liberty to apply.

Order 1. Plaintiff's application to change her surname on both JusticeLink and the statement of claim to "Clarke", to change particulars (k) and (l) in relation to the assault claim and to add paragraph 11 to the statement of claim is granted. 2. Plaintiff's application to amend the Amended Statement of Claim to replace the current three named defendants with the name "Vanessa Madunic" is dismissed. 3. Plaintiff pay defendants' costs. 4. Liberty to apply in relation to costs. 5. The parties are to bring in Short Minutes of Order reflecting a timetable for the continued progress of these proceedings, including: 1. The change to the plaintiff's surname, 2. The amended pleadings for the assault agreed to by the defendant; 3. The plaintiff's Notice of Motion filed on 3 October 2017 and any challenge to the proposed continuation of the claim as against the three currently named defendants (including any challenges in relation to the matter complained of); and 4. If the defamation claim is abandoned, orders for the transfer of these proceedings to the General List for directions concerning the assault claim, including a return date for whichever list the proceedings remain in.

Amendments 23 November 2017 - Order (3): "defendant's" changed to "defendants'" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 November 2017