Clarke v New South Wales Nurses and Midwives' Association

Judgment

1. On 9 February 2021 Schmidt AJ made the following orders, after hearing an application by South Eastern Sydney Local Health District against the present plaintiff for orders under the Vexatious Proceedings Act 2008 (NSW) against the present plaintiff: [141] For these reasons I also make orders in the terms sought that: 1. Pursuant to the Vexatious Proceedings Act 2008, s 8(7)(b) the Defendant is prohibited from instituting proceedings in NSW against or relating to: - (a) the South Eastern Sydney Local Health District (and its statutory predecessors and successors), its staff, consultants, executive officers and agents in relation to any matter arising from the Defendant's employment; (b) 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 the Defendant's professional practice (except with the consent of the Nursing and Midwifery Council); (c) the subject matter of proceedings brought in the following proceedings: [28 cases were listed which had been brought by the present plaintiff in tribunals, the Local Court of New South Wales, the District Court of New South Wales, this Court, the Federal Circuit Court and the Federal Court of Australia] (South Eastern Sydney Local Health District v Clarke [2021] NSWSC 63)
2. Case numbered (xix) was Federal Circuit Court proceeding SYG3310/2018 - Charmain Daisy Clarke v Nursing and Midwifery Council of New South Wales, Nursing and Midwifery Board, New South Wales Nurses and Midwives Association and Violet Stojkova.
3. Cases numbered (x), (xiv), (xvii), (xviii) and (xx) named Julie Herrick as a defendant, and cases (ix), (xx) and (xxiii) named Susan Dale as a defendant.
4. By way of background, Ms Clarke is a nurse who was dismissed from her employment with the South Eastern Sydney Local Health District in 2015, and has since unsuccessfully brought numerous and frequent proceedings against the Health District, as well as its employees and solicitors. The matters that were not in issue in the proceedings before Schmidt AJ were summarised by her Honour as follows: 1. Ms Clarke was trained as a nurse in South Africa, registered as a nurse in Australia in 2003 and then worked as a nurse at hospitals in Sydney, including at the Royal Hospital for Women, where her employment was terminated in 2015. 2. The result of complaints made about Ms Clarke eventuated in the imposition of conditions on her registration under the Health Practitioner Regulation National Law 2009 (NSW). Ms Clarke was required to undergo a health assessment with the eventual result that she has been prevented from working as a registered nurse, a matter of ongoing complaint, including in these proceedings. 3. Ms Clarke's appeal against the imposition of such conditions and requirements was dismissed: Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163. There was no appeal from that decision, but in 2020 Ms Clarke lodged an application for extension of time. She also later pursued other applications in relation to her registration, including finally by the orders sought in her October 2020 motion in these proceedings, by which she sought to have this decision reviewed. 4. As at March 2020 the condition that Ms Clarke not practise remained in place: Clarke v Nursing and Midwifery Council of New South Wales [2020] NSWCATOD 58 at [12]. In those proceedings she had also sought to have the 2017 decision reviewed, but that application was found to be misconceived and thus summarily dismissed, the 2017 judgment being a final decision not affected by jurisdictional error: at [57]-[62]. 5. Ms Clarke has a lengthy history of other litigation relating to her former employment in proceedings she has brought, as well as those brought on her behalf by the New South Wales Nurses and Midwives' Association, including before the New South Wales Industrial Relations Commission and the Fair Work Commission. 6. Ms Clarke has brought proceedings arising out of her employment and nursing registration against the Local Health District, its employees and solicitors and the Council and others in the Civil and Administrative Tribunal, the Local Court, the District Court, this Court, the Court of Appeal, the High Court, the Federal Circuit Court, the Federal Court, the Australian Human Rights Commission and the Anti-Discrimination Board. Some of these proceedings are still on foot. 7. In 2016 and again recently, Ms Clarke has also pursued reports she has made to ICAC about various alleged misconduct, which it appears ICAC has not acted on. She has also pursued various complaints to other bodies.