Before the Court is a notice of motion filed by the defendant on 9 November 2017 seeking a number of orders, including an order dismissing the proceedings brought by the plaintiff on the basis that such proceedings disclose no reasonable cause of action. Four affidavits of Violetta Stojkova were read by the defendant in support of the notice of motion dated 9 November 2017, 16 November 2017, 16 January 2018 and 12 March 2019 respectively.
The transcript of the hearing of the motion will reflect that the plaintiff raised various objections to certain parts of those affidavits. Those objections were overruled for the reasons that I indicated at the time, and which will be apparent from the transcript.
The plaintiff was given the opportunity of cross-examining Ms Stojkova and availed herself of that opportunity.
Also before the Court are a number of notices of motion filed on behalf of the plaintiff. Firstly, there is a notice of motion dated 8 November 2017 in which the plaintiff seeks leave to file an amended statement of claim. A second motion of 19 February 2019 seeks various orders under the Industrial Relations Act 1996 (NSW) and the Supreme Court Act 1970 (NSW). A further motion filed on 22 March 2019 seeks an order for expedition as well as an order for leave to file a further proposed amended statement of claim and other orders. There was also a motion filed on 16 August 2019 seeking a raft of further orders. Affidavits of the plaintiff dated 1 November 2017, 16 January 2018, 19 February 2018, 22 February 2018 and 22 March 2018 were relied on in support of those motions.
This matter has a long history, both procedurally and otherwise. It is appropriate that I firstly summarise the procedural history.
The plaintiff commenced the proceedings by a statement of claim dated 4 April 2017. On 9 November 2017 the notice of motion presently before me was filed by the defendant. On 31 January 2018 the motion came before Adamson J. In a judgment handed down on 6 February 2018 [1] her Honour made orders, amongst other things, dismissing the proceedings pursuant to Rule 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW).
The plaintiff then sought leave to appeal against her Honour's orders. The Court of Appeal heard that application on 8 October 2018. In a judgment delivered on 12 October 2018, [2] the Court granted the plaintiff leave to appeal and made a number of other ancillary orders. The grant of leave was confined to a single ground of appeal in which the plaintiff asserted that she had been denied procedural fairness as a consequence of the omission of a number of relevant documents when the matter was before Adamson J. Following the grant of leave the defendant conceded the appeal. Orders were then made by consent (inter alia) allowing the appeal, and setting aside the orders of Adamson J. The proceedings were then remitted to this Court to be further dealt with. It is in those circumstances that the matter has now come before me.
The factual background to the proceedings was set out at length in the judgment of Adamson J, and by the Court of Appeal, but it is appropriate that I summarise it again.
The plaintiff is a registered nurse who commenced working with the defendant in October 2011. In May 2013, following a restructuring of operating theatres, the plaintiff was moved to a role within the recovery unit in the Royal Hospital for Women which was operated by the defendant.
During 2013, the plaintiff became subject to a professional development plan, and a learning plan, to enhance her skills. Ultimately, her nursing practice was assessed by the defendant as being of a high risk, as a consequence of which she became the subject of increased supervision, and increased management of her performance. The plaintiff then raised an issue regarding the defendant's conduct in this regard and asserted (inter alia) that she was being bullied, and that issues that she had raised were not being dealt with by the defendant in accordance with its own procedures.
On 5 May 2015, the defendant terminated the plaintiff's employment. Following that termination, the plaintiff commenced proceedings in the New South Wales Industrial Relations Commission in which she asserted (inter alia) a failure on the part of the defendant to comply with policy requirements, and a failure to investigate her claims of workplace bullying. It is the defendant's position that the proceedings brought by the plaintiff in the Industrial Relations Commission were settled on 7 July 2017. The plaintiff has also commenced proceedings in a number of other jurisdictions seeking various forms of relief arising from the termination of her employment.
Against that background, I turn to the statement of claim filed in this court. It makes reference to a cause of action described as "breach of administrative law". There is also a reference to a "stated case" and "employment related and malicious prosecution". Whilst it is evident that the plaintiff's purported case stems from her former employment with the defendant, there is no actual case stated. Despite the reference to malicious prosecution, the statement of claim is bereft of any precise allegation that the plaintiff has been prosecuted for anything, maliciously or otherwise.
The relief claimed is identified as damages, including exemplary and aggravated damages. There are references to damages for personal injury. The claim for aggravated or exemplary damages is said to be based upon a "contumelious disregard for the plaintiff's rights". There is little in the way of further particulars in that regard.
The pleadings also make reference to a breach of administrative law. On my reading of the pleadings, there is no application for judicial review of any administrative decision, no relevant error in that regard has been identified, and none of the relief which is sought is directed towards any identified administrative decision.
There is also a reference in the pleadings to the defendant's alleged failure to investigate a complaint of bullying, in contravention of a number of its own policies. None of those matters, in my view, plead a cause of action.
The statement of claim also contains various generalised, and it might be said inherently vague, assertions of fact, some of which are, in my view, pleaded at such a high level of generality that any sensible pleading in response by the defendant is rendered virtually impossible.
There are various references to documents that are said to be missing. There are other assertions that the plaintiff at one point became ill and was stood down from her employment. Such matters shed no light on what the plaintiff's cause of action is said to be. There is also a reference to the fact that the defendant is alleged to have provided false and defamatory material to various authorities relating to the plaintiff. To the extent that I am able to ascertain, those matters appear to be the subject of proceedings brought by the plaintiff in the District Court.
There are also references to bullying, harassment, and breaches of policy on the part of the defendant. Aspects of an assault claim appear to reflect some attempt to bring a cause of action in defamation. However, the pleadings in that regard are such that in my view, the defendants could not possibly be expected to plead a defence in response, for the simple reason that such pleadings are largely incomprehensible.
All of these matters were canvassed by Adamson J in her judgment.
It is important to note that when granting the plaintiff leave to appeal, the Court of Appeal did so solely in respect of the discrete ground to which I earlier referred, based on an assertion of procedural unfairness stemming from the omission of certain documents. It must be emphasised that the Court did not take any issue with Adamson J's assessment of the material before her, her analysis of that material, or her ultimate conclusion. In particular, the Court concluded [3] that apart from the ground on which leave was granted, the plaintiff had not demonstrated any issues of principle, questions of public importance, or circumstances where it was reasonably clear that an injustice had occurred by reason of error in the judgment, going beyond what was merely arguable.
Significantly, Exhibit A before me is a bundle of documents tendered by the defendant. Those documents, in the defendant's submission, constituted those which were not (but which should have been) before Adamson J. The plaintiff, as I understood it, did not accept that the documents in Exhibit A constituted the entirety of the documents which should have been before Adamson J but were not. In those circumstances, the plaintiff tendered a further bundle of documents which became Exhibit 1 and which, at least from her point of view, supplement those in Exhibit A.
However one approaches it, I now have before me, in Exhibit A and Exhibit 1, the entirety of the documents that the plaintiff says should have been before Adamson J. I have read those documents in their entirety. I do not propose to enumerate them individually. They are, in the main, copies of correspondence which has passed between the plaintiff and various authorities in relation to her dismissal. There are also other documents, including what appear to be copies of handwritten notes on post-it notes, the significance of which is not immediately apparent.
Having looked at those documents carefully, they do not, in my view, have any material bearing upon the determination that I have to make. It was the position of counsel for the defendant, that if I came to that view, I should adopt the conclusions reached by Adamson J and dismiss the proceedings.
I have read Adamson J's judgment, with which the Court of Appeal found no fault. I have also undertaken my own assessment of the pleadings in the statement of claim, and the evidence before me including Exhibit A and Exhibit 1. In my view there is no reason to depart from her Honour's reasoning. Indeed, on my own independent assessment of the pleadings, I have come to the view that no reasonable cause of action is made out.
I am mindful of the authorities which deal with applications of this nature, and which make it clear that an order summarily dismissing proceedings is significant because it deprives a plaintiff of an adjudication of his or her case on the merits. [4] However, in my view, for the reasons that I have outlined, no reasonable cause of action is disclosed in the statement of claim.
In terms of costs, counsel for the defendant has foreshadowed an application for a lump sum costs order.
For all of these reasons, I make the following orders:
1. The proceedings are dismissed.
2. The defendant is to file any affidavit and written submissions in respect of costs by 5 pm on 29 August 2019.
3. The plaintiff is to file any affidavit and any written submissions in response by 5 pm on 5 September 2019.
[2]
Endnotes
Clarke v South East Sydney Local Health Authority [2018] NSWSC 66.
Sharmain Daisy Clarke v South East Sydney Health District (No. 2) [2018] NSWCA 226.
At [58].
See General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125.
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Decision last updated: 28 August 2019