[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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EX TEMPORE Judgment
HIS HONOUR: On 9 February 2021, Schmidt AJ made orders under the Vexatious Proceedings Act 2008 (NSW) in proceedings brought by the South Eastern Sydney Local Health District and the Nursing and Midwifery Council of New South Wales (together the Respondents) against the present applicant, Ms Sharmain Daisy Clarke (Ms Clarke). By summons filed on 16 February 2021, Ms Clarke seeks leave to appeal from the orders made by Schmidt AJ. The summons was supported by a summary of argument and a draft notice of appeal. Having read the summary of argument and the draft notice of appeal, I have some difficulty in understanding precisely what are the grounds of appeal relied upon by Ms Clarke in alleging error on the part of Schmidt AJ. Having heard oral argument at some length and having read further written submissions that were produced by Ms Clarke during the course of the application today, it appears that the complaint may be of a denial of procedural fairness in some way, the particulars of which I do not follow.
Clarke v South Eastern Sydney Local Health District [2021] NSWCA 43 | Case summary | Zoe
The matter before me today is a notice of motion filed by Ms Clarke on 9 March 2021 supported by an affidavit sworn and filed on that day. By the notice of motion, Ms Clarke seeks various forms of relief. First, she seeks an order for an urgent listing of the matters complained about in the proceedings before Schmidt AJ. However, as I understand her oral argument, she is in effect seeking expedition of her application for leave to appeal. Having regard to the importance of the matter to Ms Clarke, I would be disposed to order that the hearing of the application for leave to appeal be expedited.
However, the balance of the prayers for relief in the notice of motion are somewhat difficult to comprehend. Paragraph 3 actually says that Ms Clarke, described as "the defendant", requests an order for an urgent stay "of all Appeals". I understand from her oral argument that what she means by that paragraph is that she seeks an order for a stay of the orders made on 9 February 2021 in proceedings 290194 of 2019, being the proceedings in which Schmidt AJ made the orders to which I have referred.
Prayer 4 of the notice of motion deals with costs. Prayers 5, 6, 7, 8 and 9 appear to be an application for joinder of further parties, although the language is curious. The orders sought are that the notice of motions filed on 5 February 2021 and 13 October 2020 be amended "to carry" six additional parties, being the Independent Commission Against Corruption of New South Wales, the Health Care Complaints Commission of New South Wales, the State Police of New South Wales, the Medical Council of New South Wales and the Department of Communities and Justice, previously known as the Department of Family and Community Services of New South Wales. Prayer 10 then seeks an order that the New South Wales Nurses and Midwives' Association and the Nursing and Midwifery Board of Australia be formally "recognised" as parties. Finally, prayer 11, seeks an order for certain medical negligence claims commenced in the District Court to be transferred to the Supreme Court. All of those prayers for relief appear to me to be misconceived as an application to the Court of Appeal.
One of the complaints that I understand Ms Clarke to make is that the notice of motion of 5 February 2021 was not dealt with by Schmidt AJ. That may be a ground of appeal, but that will be a matter in due course for determination by the Court that hears her application for leave to appeal, and if leave is given, the appeal itself.
Most of the time taken today was concerned with Ms Clarke's application for a stay of the orders made by Schmidt AJ. Despite a number of requests, Ms Clarke was unable to formulate, in a way that I could comprehend, the basis upon which she sought a stay of the orders.
By Order 1, Schmidt AJ prohibited Ms Clarke from instituting proceedings in New South Wales against or relating to:
1. 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 her employment;
2. 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 her professional practice (except with the consent of the Nursing and Midwifery Council); and
3. the subject matter of some 28 separate proceedings in various tribunals, in the Local Court of New South Wales, in the District Court of New South Wales, in the Supreme Court of New South Wales and the Federal Circuit Court of Australia and in the Federal Court of Australia.
In Order 2, Schmidt AJ ordered that the following District Court proceedings be stayed:
1. Sharmain Daisy Clarke v Hicksons Lawyers, proceedings 128851 of 2020; and
2. Sharmain Daisy Clarke v Dr Adams & Ors, proceedings 294918 of 2020 insofar as those proceedings concern Anthony Samuels and Karen Arnold.
As best I could understand from Ms Clarke's oral submissions, because her affidavit and her written submissions did not seem to address the question, her complaint is that the stay of those District Court proceedings stops her from working and earning a living as a nurse.
Ms Clarke referred specifically to three proceedings, namely the two District Court proceedings just mentioned and proceedings in the Civil and Administrative Tribunal of New South Wales. Schmidt AJ dealt with each of those proceedings.
In the first proceedings, against Hicksons Lawyers (Hicksons), Schmidt AJ observed that Ms Clarke commenced the proceedings in April 2020 seeking damages for alleged breaches of the Legal Profession Act 2004 (NSW) and other misconduct on the part of certain employed solicitors in various matters. Her Honour said that the claims had been amended and an application by Hicksons for summary dismissal had not yet been determined.
In relation to proceedings in the Civil and Administrative Tribunal of New South Wales concerning the Nursing and Midwifery Council, Schmidt AJ observed that Ms Clarke filed an application seeking orders in relation to matters that were the subject of a decision in Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163 and alleged non-compliance with conditions of her registration imposed in 2015. Her Honour said that Ms Clarke claimed, amongst other things, that the 2017 decision was affected or induced by fraud. Her Honour then said that the proceedings were dismissed as misconceived given that the 2017 decision had been overtaken by a 2018 decision of the Impaired Registrants Panel under the Health Practitioner Regulation National Law (NSW), which imposed a condition upon Ms Clarke's registration requiring her not to practice, which was operative despite a 2020 review of her registration conditions. Her Honour referred to Clarke v Nursing and Midwifery Council of New South Wales [2020] NSWCATOD 58.
Finally, Schmidt AJ referred to the proceedings in the District Court against Adams, Toohey, Samuels, Arnold and the Northern Local Health District, proceedings 249918 of 2020. Her Honour said that in those proceedings, commenced in October 2020, Ms Clarke sought damages for medical negligence from treating doctors as well as from a practitioner who assessed her on referral by the Australian Health Practitioner Regulation Agency and another who sat on the Impaired Registrants Panel and from the health district whom she claimed wrongly detained her in a mental health unit in 2019. Her Honour observed that those proceedings are yet to be heard.
Thus, it appears that the reason why Ms Clarke is presently prevented from working as a nurse are orders that were the subject of the proceedings in the Civil and Administrative Tribunal of New South Wales. I am at a complete loss to understand how a stay of the orders made by Schmidt AJ would in any facilitate Ms Clarke's ability to obtain employment as a nurse. In those circumstances, assuming, without considering the matter at all, that she has good grounds of appeal and that there are reasonable prospects of success in her appeal, I do not see any basis upon which there should be a stay of the orders made by Schmidt AJ on 9 February 2021.
For those reasons, I propose to order that the notice of motion filed on 9 March 2021 be dismissed. However, in the circumstances I propose to ask the Registrar to endeavour to see if the hearing of the application for leave to appeal can be expedited.
The respondents to the motion have asked for the costs of the motion. Ms Clarke opposes that order and asks that the costs of the motion be the costs of the proceedings. I do not think that that is an appropriate order.
The notice of motion for the most part, as I have said, was misconceived, although I would direct that the hearing be expedited to the extent that the business of the Court permits. That of itself was not opposed by the respondents to the motion. In the circumstances, I think the appropriate order is to order that the applicant on the motion pay the costs of the respondents on the motion. Of course, the order will not be enforced until after the disposition of the appeal.
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Decision last updated: 11 May 2021