Clarke v South Eastern Sydney Local Health District [2020] NSWCA 8 | Case summary | Zoe

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Judgment

THE COURT: On 4 April 2017 the applicant, Sharmain Daisy Clarke, commenced proceedings in the Supreme Court against her former employer, South Eastern Sydney Local Health District, and her supervisor at the Royal Hospital for Women in 2013/2014, Julie Herrick.
On 9 November 2017 the defendants filed a notice of motion seeking to have the proceedings dismissed on the basis that they disclosed no reasonable cause of action. That motion was heard by Adamson J on 31 January 2018. On 6 February 2018 orders were made (i) striking out the statement of claim filed on 4 April 2017, (ii) refusing the plaintiff leave to file a proposed amended statement of claim and (iii) dismissing the proceedings. [1]
The applicant sought leave to appeal from that judgment. This Court granted leave on 12 October 2018, confined to one ground. [2] That ground identified no error in the reasoning of Adamson J; rather, it was based upon an unfortunate circumstance whereby, in preparing a court book of papers, the defendants had omitted material which the plaintiff had sought to rely upon. That was characterised as an element of procedural unfairness, which, if made good, would require the judgment of Adamson J to be set aside.
Ultimately, no appeal was heard because the defendants consented to the orders made on 6 February 2018 being set aside. The result of that course was that this Court had no occasion to consider whether the material omitted would, or even might, have affected the outcome. The matter returned to the Common Law Division.
A further hearing took place before Bellew J on 19 August 2019. On 21 August 2019 judgment was delivered dismissing the proceedings. [3] The applicant now seeks leave to appeal from that judgment.
Four grounds of appeal were contained in a draft notice of appeal. As with the other pleadings prepared by the applicant, it is not easy to discern the substance of particular paragraphs.
Proposed ground 1 alleges "inaccuracy of statements" made in the judgment below, apparently resulting in some material not being taken into account, in circumstances where the statement of claim dated 4 April 2017 had been previously dismissed because there was no reasonable cause of action demonstrated, but "a further proposed statement of claim was on the courts [sic] file and was relied on for the purposes of argument on 19 August 2019."
In similar vein, proposed ground 2 alleged procedural unfairness in dismissing the proceedings and thus denying the applicant leave to file a proposed statement of claim "which was well vented [sic] in three formal applications on the courts [sic] file and is submitted in her summary of the applicant's argument submissions." In her oral submissions, the applicant sought to allege, without evidence, that she was misled as to how the matter would proceed in circumstances where it had been accepted, at a directions hearing before Fagan J four days earlier, that the original statement of claim had been "superseded". The transcript provides no basis for a finding that the applicant was misled.
Grounds 3 and 4 identified no specific error but alleged a substantial wrong resulting from the orders below.
The applicant's written summary of argument did little to advance the substance of the proposed appeal. No material factual errors were identified. However, a number of errors of fact were identified in the course of oral submissions, but, even if erroneous, none was material to the dismissal of the proceedings for failure to disclose a reasonable cause of action.
The documents contained in the white folder supplied by the applicant included a "Further proposed amended statement of claim" which had been annexed to an affidavit sworn by her on 22 March 2019 and bore the date 26 February 2019. A notice of motion filed on 22 March 2019 sought leave to file that revised claim, as noted by Fagan J at the directions hearing on 15 August 2019. [4]
Adamson J had considered the claims pleaded in the original statement of claim filed on 4 April 2017 and, in detail, a proposed amended statement of claim dated 20 December 2017, which had also been the subject of a notice of motion filed by the applicant for leave to replead. As Adamson J noted, if that leave were granted, the original claim would have been superseded and the defendants' notice of motion would have been rendered hypothetical. [5]
The further proposed pleading of 26 February 2019 was undoubtedly before Bellew J and the judge invited the applicant's attention to it in the course of the hearing on 19 August 2019. [6] Counsel for the respondents agreed the motion was before the Court. [7] It is true that his judgment did not specifically refer to that pleading, but the judge adopted the reasoning of Adamson J with respect to the causes of action pleaded in the earlier statements of claim. There was, therefore, no need to make specific reference to the February 2019 draft unless it raised some different cause of action, or relevantly reformulated a cause of action which had been addressed in the earlier claims. That was not suggested in the submissions.
The effect of the February 2019 draft was to remove a number of supposed causes of action which had been rejected by Adamson J. The remaining primary cause of action focused upon the complaint of "breach of contract" resulting from a "breach of code of conduct". Although that cause of action was pleaded with some greater level of clarity as to the factual assertions sought to be relied upon, it amounted to no more than a complaint of breaches of an employment contract mainly by bullying and unfair conduct on the part of the applicant's supervisor, the second defendant. Secondly, the draft made a claim in negligence against the proposed third defendant, the Nursing and Midwifery Council. A claim against the Council had also been raised in the draft of December 2017 considered by Adamson J.
The claim for breach of contract could not, of course, lie against her supervisor at the hospital, who was not her employer. The claim against her employer was addressed in detail by Adamson J, who noted that it was not maintainable in the circumstances because it did not conform in procedure or in substance to the requirements of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and the provisions of the Workers Compensation Act 1987 (NSW), Pt 5, Div 3. There is no submission that the judge was wrong to dismiss those claims, nor that she was in error in dismissing the claim against the supervisor, Ms Herrick.
In the draft claim considered by Adamson J, proceedings were sought to be brought against the Nursing and Midwifery Council in defamation. While Part D of the February 2019 draft uses the term "negligence" in the heading with respect to the Council, the claim appears to be one of wilful misconduct in suspending the applicant's registration for four days in July 2017. There is no pleading of a tenable cause of action for damages in that respect. Adamson J noted that the Council was protected from liability for acts undertaken in good faith and that the applicant had pleaded "malice". It was not explained why, in the light of the reasoning of Adamson J in discussing the claims against the Council, there should be any different result in relation to the revised pleading. No specific complaint was raised about this aspect of the matter which seems, at best, to have been peripheral to the main complaints. Further, the Council was not a party to the application before Bellew J nor is it a party in this Court.
In these circumstances, it is not possible to identify any material error on the part of Bellew J which gives rise to more than an arguable case as is required for a grant of leave to appeal. The material before this Court provides no prospect that a different outcome would be achieved if leave to appeal were granted and the matter reconsidered.
Further, the applicant's claims raise no issue of principle. Indeed, matters of principle militate against the grant of leave. In addition to the proceedings in this Court, the Union on behalf of the applicant has maintained proceedings in the Industrial Relations Commission (which appear to have been settled, although the applicant disputes acceptance of the money paid pursuant to the settlement), in the District Court, and, most recently, it appears, by the filing of proceedings in the Local Court on 12 September 2019, after the judgment of Bellew J and whilst the application for leave to appeal was in contemplation, those proceedings being sought against the solicitors for the respondents.
It should also be noted that the applicant has had a significant degree of legal assistance in attempting to formulate her causes of action in different jurisdictions, as noted by Adamson J at [11]-[12]. On 10 January 2020 the applicant filed a notice of motion seeking orders for the purpose of obtaining legal assistance to pursue her appeal. If leave is refused, that motion falls away and should be dismissed.
The application for leave to appeal must be dismissed. The respondents seek costs; no reason was provided as to why costs should not follow the event. The Court makes the following orders: 1. Dismiss the summons filed 3 October 2019 seeking leave to appeal from the judgment of Bellew J in the Common Law Division. 2. Dismiss the applicant's notice of motion filed 10 January 2020. 3. Order that the applicant pay the costs of the respondents of the application.

Clarke v South Eastern Sydney Local Health District [2020] NSWCA 8 | Case summary | Zoe