Clarke v Nursing and Midwifery Council of New South Wales

An order is requested by the plaintiff save prayers for relief under Civil Liability Act 2002 Par 1 A Negligence (c); 5A (1) 5B 1 a, b, b; 2 a, b, c, d; 5C a, b, c; 5D General Principles 1 (a), (b); 2, 3 a, b & 4.

An order requested by the Plaintiff save prayer for relief Under the Crimes Act 1900 Sec 192B Deception, 192D Obtaining Financial advantage or causing financial disadvantage, 192E Fraud, 192G Intention to defraud by false or misleading statement, Forgery and offences related to Forgery 250, 251, 252, 253, 254, 255;

An order requested by the plaintiff save prayer for relief under the Supreme Court Act 1970 - Part 4 Law and Equity and Part 5 Powers and powers to determine a judicial review in Clarke v Nursing and Midwifery Council New South Wales [202] NSWCATOD31 [sic]."

1. 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: "Dear Registrar/Sir/Madam I am noted in the subject matter above. Please advise receipt of the amendment noted in the subject. Two further affidavits support this application is to sworn and returned during the course of today given the availability of the Justice of Peace."
2. 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: "RELIEF CLAIMED

Thereafter I was subject to a "snowball effect" of race discrimination, isolation, rejection, rife bullying and harassments in Prince of Wales Operating suite;"

1. 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.
2. 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.
3. Given these two matters I consider that I must dismiss this application as required by s 15(1)(a) of the Act.

15(1)(b) - The proceedings are vexatious

1. 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.
2. 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: "… notwithstanding Maria Fenn provided a File Note to the Second Respondent on 17 September 2015 depicting slander and labile against me subject to defamatory imputations."
3. 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.
4. 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.
5. As a consequence, I consider that I am bound to dismiss the application pursuant to s 15(1)(b) of the Act.

15(1)(c) - There is no prima facie ground for the proceedings

1. 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.
2. 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.
3. 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. The Court orders that the application for leave to institute proceedings be dismissed under s 15 of the Act.

Annexure - Amended Summons (156440, pdf)

Amendments 14 January 2022 - Annexure added. 19 January 2022 - Annexure removed to remove applicant's address 28 January 2022 - Annexure reattached with applicant's contact details removed. 28 January 2022 - added annexure 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: 28 January 2022