[1997] HCA 9
Macatangay v State of New South Wales (No 2) [2009] NSWCA 272
Re Minister for Immigration and Multicultural and Indigenous Affairs
ex parte Lam (2003) 214 CLR 1
[2003] HCA 6
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597
Source
Original judgment source is linked above.
Catchwords
[1964] HCA 69
Hill v Van Erp (1997) 188 CLR 159[1997] HCA 9
Macatangay v State of New South Wales (No 2) [2009] NSWCA 272
Re Minister for Immigration and Multicultural and Indigenous Affairsex parte Lam (2003) 214 CLR 1[2003] HCA 6
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597
Judgment (8 paragraphs)
[1]
Background
In 2016, Hicksons were retained to act for South Eastern Sydney Local Health District (SESLHD) and its employees in District Court proceedings commenced by Ms Clarke. Hicksons were subsequently retained to act on behalf of the SESLHD, the Nursing and Midwifery Council of New South Wales (NMC) and various former and current employees, in other proceedings commenced by Ms Clarke in the District Court, the Supreme Court, and the Federal Circuit Court of Australia.
On 9 September 2019, Ms Clarke filed two notices of motion in District Court proceedings commenced against NMC seeking orders, among others, that Hicksons recuse themselves from the proceedings. Those motions were dismissed by Judge Gibson on 12 September 2019: Clarke v Nursing and Midwifery Council of New South Wales (No 3) [2019] NSWDC 532; (2019) 32 DCLR (NSW) 18.
In 2019, Hicksons were retained by SESLHD and NMC to seek orders against Ms Clarke under the Vexatious Proceedings Act 2008 (NSW). On 9 February 2021, Schmidt AJ made orders under s 8(7)(b) of the Vexatious Proceedings Act prohibiting Ms Clarke from instituting proceedings relating, among others, to the subject matter of certain identified proceedings, including the proceedings below in the District Court: South Eastern Sydney Local Health District v Clarke [2021] NSWSC 63 at [141(c)(xv)]. Leave to appeal from that judgment was refused by this Court on 13 May 2021: Clarke v South Eastern Sydney Local Health District [2021] NSWCA 84. The respondent (Hicksons) accepts that the bringing of this application for leave to appeal is not prohibited by the vexatious proceedings order.
Ms Clarke commenced the proceedings below in the District Court by statement of claim filed on 28 April 2020; she was self-represented. An amended statement of claim was filed on 11 May 2020. The named defendant, "Hicksons Lawyers", sought summary dismissal of the proceedings pursuant to UCPR, r 13.4. That application first came before Norton SC DCJ on 11 September 2020. On that day Ms Clarke indicated that she wished to file a further amended statement of claim and sought and obtained an adjournment of the hearing of the summary dismissal motion. A further amended statement of claim was filed on 20 October 2020.
Ms Clarke's pleading alleges that various solicitors employed by Hicksons, who had responsibility for the day-to-day conduct of proceedings on behalf of SESLHD, NMC or their current or former employees, conducted those proceedings in a manner which involved non-compliance with court orders, breach of their legal and ethical duties to the courts, abuse of judicial proceedings, delay tactics and breaches of certain privacy laws.
The summary dismissal application was heard on 4 December 2020. Her Honour gave an ex tempore judgment and made orders (1) dismissing the proceedings pursuant to UCPR, r 13.4, (2) that Ms Clarke pay the defendants' costs of, and incidental to, the notice of motion, and (3) that Ms Clarke pay the defendants' costs of the proceedings. The orders included a notation by the judge:
I note that the reference to the defendant in the costs order is a reference to the partners of Hicksons Lawyers trading as Hicksons Lawyers.
[2]
The District Court judgment
The judge commenced by noting that Ms Clarke wrote to the court on 30 November 2020 foreshadowing seeking leave to file a further amended statement of claim and seeking a further adjournment to obtain expert evidence, however no proposed further pleading had been served.
The judge correctly approached the application by taking the allegations in Ms Clarke's pleading at their highest, and applying the well-established test for summary dismissal: that the proceedings have to be so obviously untenable that they cannot possibly proceed, referring to General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69.
The judge found that the further amended statement of claim was lacking in any proper pleading or particularisation of the serious claims made against Hicksons as officers of the court, contained "irrelevant and extravagant claims", as well as claims which were "vague to the point of being incomprehensible". The judge was not satisfied that any adjournment would result in a statement of claim that pleaded a tenable cause of action. Her Honour concluded that the pleading did not disclose a properly formulated cause of action and would tend to embarrass and prejudice Hicksons.
[3]
Proposed grounds of appeal
The draft notice of appeal contains ten proposed grounds. The grounds lack specificity and clarity. Nonetheless, by reference to Ms Clarke's summary of argument, her complaints appear to fall into two categories.
First, it is contended that the summary dismissal order involved the denial of natural justice because Hicksons were not required to file their defence and there was no final hearing.
Second, it is contended that there was a procedural irregularity because the costs orders were made in favour of the partners of Hicksons Lawyers, and not the named defendant "Hicksons Lawyers".
[4]
Disposition of application
The criteria for the grant of leave are well-established. None of the proposed grounds of appeal raise an issue of principle or question of general importance.
Turning to the subject matter of the proposed grounds of appeal, Ms Clarke has not demonstrated an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].
[5]
The pleading
The finding by the judge that the proceedings did not disclose a reasonable cause of action was well open to her Honour; the pleading was no more than a jumble of broad and unparticularised allegations that solicitors from Hicksons had misconducted themselves when acting for clients in adversarial litigation involving Ms Clarke. No reasonable cause of action was identified.
Reference to two examples from the pleading will suffice.
The pleading alleges that solicitors from Hicksons deposed on information and belief that they were instructed by SESLHD that Ms Clarke had not made a claim for "lump sum compensation" within the meaning of the Workers Compensation legislation; that is, a claim for compensation under Div 4 of Pt 3 of the Workers Compensation Act 1987 (NSW), and annexed a copy of the approved form for making such an application: see the affidavit of Violeta Stojkova sworn 16 January 2018, par 5, and the affidavit of Monica Pecker affirmed 5 April 2018, par 10. The pleading continued by alleging that "attaching blank permanent impairment claim forms" to those affidavits breached legal and ethical duties to the courts, was a breach of confidence, and a breach of privacy legislation.
However, no relevant duty was particularised, no confidential information was particularised, nor was any breach of privacy legislation particularised. The allegations of wrongdoing simply do not follow from the conduct of the solicitors in deposing to instructions received from their client and attaching a "blank" claim form.
The second example is the allegation in the pleading that by filing the proceedings seeking orders against Ms Clarke under the Vexatious Proceedings Act, Hicksons were involved in a "breach [of] legal and ethical duties to the courts in respect of candour, being upfront and honest". Again, there is no legal or factual basis pleaded for this allegation. Those proceedings were contested by Ms Clarke. Schmidt AJ found that there was a basis for granting relief under the Vexatious Proceedings Act and this Court refused leave to appeal on 13 May 2021: see [7] above.
Insofar as the premise of Ms Clarke's allegations is the suggestion that Hicksons owed a duty of care in tort to Ms Clarke, this is contrary to the basic proposition that the solicitor acting for a party in "hostile" civil litigation owes a duty to their client and to the court but normally does not owe any duty to the opponent of their client: Hill v Van Erp (1997) 188 CLR 159 at 236-237 (Gummow J); [1997] HCA 9.
Three further matters arising from Ms Clarke's oral argument should be mentioned.
First, Ms Clarke complained that she was denied procedural fairness because the judge granted Hicksons leave at the 4 December 2020 hearing to orally amend the relief sought in their motion to refer to the "further amended statement of claim", instead of the "amended statement of claim". However, the transcript of the 4 December 2020 hearing records that Ms Clarke was on notice since the earlier hearing on 11 September 2020 that the summary dismissal motion would apply to any further amended statement of claim that might be filed by her (T 4/12/20, 12 (27-31)). In the circumstances, there was no practical injustice to Ms Clarke in granting that amendment to the motion: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 (Lam) at [37] (Gleeson CJ).
Second, the minor error by the judge during oral argument below in referring to "the fourth statement of claim" when only three had been filed was immaterial. The transcript records that immediately following Ms Clarke's intervention to correct this misdescription of the number of pleadings, the judge correctly acknowledged that it was the third pleading (T 4/12/20, 8 (43-48)-9(1)).
Third, the judge squarely addressed the question of whether Ms Clarke should have been given another opportunity to replead her case and found that it was not appropriate to grant leave to replead as Ms Clarke had had a number of attempts to amend her pleading. That discretionary decision was well open to her Honour given the history of the proceedings and the obvious deficiencies in the pleading which had been through three iterations.
[6]
The costs orders
The complaint by Ms Clarke that the notation to the orders made on 4 December 2020 (see [10] above) involved a denial of procedural fairness is without merit.
The judgment below records that after her Honour had announced the orders, counsel for Hicksons asked her Honour to make that notation and Ms Clarke did not object. Indeed, Ms Clarke responded that she had "requested that right at the beginning in terms of getting the names of the defendant appropriately and I was denied that". Again, Ms Clarke has not demonstrated that it is reasonably arguable that she has suffered any practical injustice: Lam at [37].
[7]
Conclusion and Orders
Only if a decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. This is not such a case.
Leave to appeal should be refused and there is no reason why costs should not follow the event: UCPR, r 42.1.
Accordingly, I propose the following order:
1. Summons seeking leave to appeal be dismissed with costs.
[8]
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: 21 May 2021
GLEESON JA: The applicant, Sharmain Daisy Clarke (Ms Clarke), seeks leave to appeal from a judgment of the District Court delivered on 4 December 2020 summarily dismissing proceedings commenced by her against Hicksons Lawyers. That order was made pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.4(1)(b) which provides that the court may order that proceedings be dismissed generally or in relation to any claim for relief if it appears to the court that no reasonable cause of action is disclosed.
For the purposes of determining whether an appeal lies as of right or by way of leave, the summary dismissal order is interlocutory. Accordingly, Ms Clarke requires leave to appeal: District Court Act 1973 (NSW), s 127(2)(a); Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [10]-[11].
For the reasons that follow, leave to appeal should be refused.