Clarke v Nursing and Midwifery Council of New South Wales

The issues before the court for determination

1. This application deals only with the issue of leave to amend. The defendant has withdrawn its foreshadowed summary dismissal application, but reserves its rights in relation to any claim for absolute privilege in relation to the amended publication.
2. There are therefore three questions which must be answered in order to determine whether the cause of action arises from the same or substantially the same facts as those set out in the plaintiff's statement of claim filed on 11 April 2018. These are: 1. What are the facts pleaded in the statement of claim alleged to give rise to a cause of action in defamation ("the existing cause of action")? 2. What are the facts pleaded in the amended statement of claim alleged to give rise to a new cause of action ("the new cause of action")? 3. Are the 2 sets of facts in the court's opinion the same or substantially the same?
3. I also note that the defendant raises two additional issues: 1. The plaintiff has failed to include material relevant to context, which the defendant submits should be struck in to the matter complained of; and 2. The plaintiff has appended to her pleading irrelevant material that is embarrassing and vexatious.
4. I briefly note that the plaintiff has commenced other proceedings for defamation for publication of the same or similar imputations, both in this court and in the Supreme Court, but I understand that no leave under s 23 Defamation Act 2005 (NSW) is required because the defendants in those other proceedings are different parties.

The relevant statutory provisions and principles of law

1. Section 65(2) Civil Procedure Act 2005 (NSW) provides: "(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: (a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or (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 (c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, 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."

The facts pleaded in the existing cause of action

1. In paragraph 5 of the Statement of Claim the plaintiff identifies a letter dated 11 September 2017 requesting that her name be placed on a national register. The conditions attaching to the plaintiff's registration are referred to in paragraphs 7 to 10 of the Statement of Claim.
2. The obligations upon the plaintiff (as registrant) are contained in the following two paragraphs: 1. Paragraph 8, which requires the plaintiff to notify the defendant of any breach of conditions or unsafe practice; and 2. Paragraph 10, which stipulates that the plaintiff must only be employed as a nurse in circumstances where the employer has agreed to notify the defendant of any breach of the conditions or unsafe practice.
3. In paragraph 11 of the original statement of claim, the plaintiff pleaded the alteration of the conditions on 13 July 2017 by replacing the above conditions with the following: 1. The plaintiff is not to practice nursing. 2. The plaintiff is to attend the psychiatric assessment.
4. It can be seen from the above that the cause of action pleaded in the statement of claim is the publication (on or about 13 July 2017) of these conditions on the register of nursing practitioners. These conditions are asserted to impute that the plaintiff is not competent to practice nursing, is not fit because of a psychiatric condition to practice nursing, and is not a fit and proper person to be registered as a nurse.
5. The defendant's placing of these conditions on the register following the determination of the complaint against the plaintiff is governed by the Health Practitioner Regulation National Law (NSW). Clearly, a publication of this kind is one which would attract the defence of absolute privilege, for the reasons outlined by Siopsis J in Nyoni v Pharmacy Board of Australia (No 6). That is why the plaintiff does not wish to proceed with her claim in relation to this publication. Instead of abandoning her claim, however, she seeks to bring a claim based on a different publication which is not part of the complaints process and which, she submits, is the same or very substantially similar in content.

The cause of action pleaded in the Amended Statement of Claim

1. The Amended Statement of Claim pleads a cause of action in defamation based upon the publication by the defendant to a person or persons at the AHPRA of the conditions attaching to her nursing registration. The publication occurred on 25 July 2017 (see paragraph 9 of the Amended Statement of Claim). The published defamatory matter is set out in Schedule A.
2. Under s 8 Defamation Act 2005 (NSW), it is the publication of the matter, not the imputations, which is the cause of action. However, the imputations as pleaded in paragraph 11 of the Amended Statement of Claim convey the same or similar meanings to the defamatory imputations (not formally spelled-out in the statement of claim) relied upon in the original Statement of Claim. By reason of the similarity of meanings conveyed in the imputations, the plaintiff submits that the two causes of action are effectively sufficiently the same for the provisions of s 65 to apply.

Are the facts in both publications "the same, or substantially the same"?

1. Both parties referred me to the decision of Gleeson J in Clasul Pty Ltd v Commonwealth of Australia [2014] FCA 1133 where her Honour noted the following principles at [41]: "[41] The following relevant propositions were not in contest: (1) The rules require the court to focus on the facts currently pleaded and to determine whether the new legal foundation for the claim arises out of the same, or substantially the same facts: Carter, Re Spec FS NSW Pty Ltd (in liq) [2013] FCA 1027 at [38]; Darcy v Medtel Pty Ltd (No 3) [2004] FCA 807 at [30]; (2) The question is whether the "overlap is so great that the new cause of action can fairly be said to arise out of substantially the same facts as the old cause of action": New South Wales v Radford (2010) 79 NSWLR 327 at [69], citing Brickfield Properties Ltd v Newton [1971] 1 WLR 862 at 880 (Cross LJ) (Brickfield)."
2. Consideration of the authorities demonstrates that the phrase "substantially the same facts" (Draney v Barry [2002] 1 Qd R 145) is often contrasted with what is asserted to be "a new set of ideas" (Dornan v J .W. Ellis & Co Ltd [1962] 1 QB 583 at 592).
3. In Thomas v Queensland [2001] QCA 336 at [19], the court noted that "a fairly broad brush comparison between the nature of the original claim and that to which it is sought to be amended" was warranted. The court's reference at [19] to "the story" occurs in the following context: "[19] That may be thought to encourage a fairly broad brush comparison between the nature of the original claim and that to which it is sought to be amended. It accords we think with Thomas JA's statement in Draney v Barry which might usefully be repeated here. "I do not think that 'substantially the same facts' should be read as tantamount to the same facts, and consider that the need to prove some additional facts is not necessarily fatal to a favourable exercise of discretion under R376(4). If the necessary additional facts to support the new cause of action arise out of substantially the same story as that which would have to be told to support the original cause of action, the fact that there is a changed focus with elicitation of additional details should not of itself prevent a finding that the new cause of action arises out of substantially the same facts. In short, this particular requirement should not be seen as a straitjacket." Of course "the story" is a shorthand reference to the matters that the plaintiff has to prove. If it had to be proved, for example, that the road should have been differently constructed in the 1940s there would not only be a different case (ie cause of action) there would be a substantial difference in the material facts now requiring to be proved. Quite apart from this, further consideration would have to be given to the question of prejudice. There are therefore limits to which a broad brush approach can provide the necessary answer. There will commonly be three separate questions to consider - (a) Is there a new cause of action? (b) arising out of substantially the same facts? (c) prejudice."
4. Analysis of the pleadings set out in the proposed Amended Statement of Claim demonstrates that, as was the case with the original Statement of Claim, each rests upon the factual matrix set out in the decision of the Council which conveys effectively the same imputations in both publications.
5. There is no challenge as to the difference of publication and meanings conveyed; the sole challenge is to the fact that the publication in question is different. However, focus upon the facts as pleaded demonstrate an overlap of sufficient clarity to enable me to determine that the new cause of action can fairly be said to arise out of substantially the same facts as the old cause of action (New South Wales v Radford (2010) 79 NSWLR 327 at [69]).
6. Accordingly, the plaintiff is entitled to rely upon s 65 and leave to amend should be granted.

The strike in application

1. As noted above, an application was made by the defendant to "strike in" additional material as part of the matter complained of. This application was argued only faintly, as Mr Sibtain acknowledged the additional material did not impact upon the meaning of the imputations but related solely to the issue of context.
2. There is no difficulty with issues of context being raised in the pleading but material should not be added to the matter complained of unless it materially affects the imputations pleaded. That is conceded not to be the case. Accordingly, I do not propose to direct the plaintiff to replead any part of the proposed amended statement of claim which was tendered in court.

The second matter complained of

1. The defendant initially resisted the addition of the second matter complained of but, as the action based on the second publication was brought within time, this application was abandoned.

Conclusion and costs orders

1. The plaintiff should be granted leave to amend and to file the Amended Statement of Claim in the form attached to the submissions of her counsel, but should pay the costs thrown away by reason of the amendment.
2. I will grant the parties leave to make further submissions as to whether that should include the costs of this application, as this was not the subject of submissions.
3. I thank Mr Tobin QC and Mr Kelleher for their pro bono assistance in what would have been a very difficult application for the plaintiff, a litigant in person, to run. Their preparation and presentation of the plaintiff's application was in the best tradition of the pro bono assistance provided by the New South Wales Bar Association Legal Assistance Referral Scheme, and the contribution of all the parties' legal representatives was of assistance to the court in the resolution of this application.

Orders 1. Leave granted to the plaintiff to amend the statement of claim conformably with the Amended Statement of Claim attached to the written submissions of the plaintiff's Counsel. 2. The plaintiff pay the costs thrown away by reason of the amendment, with liberty to apply in relation to the costs of the argument. 3. Liberty to bring in Short Minutes of Order containing a timetable for the further conduct of these proceedings.

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: 16 November 2018