The plaintiff, Sharmain Daisy Clarke seeks to file a summons in these proceedings joining the Health Care Complaints Commission of New South Wales ("HCCC") as the defendant. The proposed defendant is a body established under the Health Care Complaints Act 1993. Its role is to manage complaints about health service providers in New South Wales, including health organisations and registered health practitioners.
Ms Clarke also seeks to file in support of her summons her affidavit sworn on 19 April 2022. The Court Registry has referred the matter to the Equity Duty Judge today, because there is an outstanding order of this Court made by Schmidt AJ on 9 February 2021 against Ms Clarke prohibiting her from instituting proceedings in New South Wales against certain bodies or relating to certain subject matters: South-Eastern Sydney Local Health District v Clarke [2021] NSWSC 63.
The question before the Court today is whether Ms Clarke's proposed proceedings infringe the prohibition in Schmidt AJ's orders. The proper approach to determining this question is to examine the scope of Schmidt AJ's February 2021 orders and then to compare them with the parties to and content of the proposed proceedings. If the parties and the content of the proposed proceedings come within the prohibition in the February 2021 order, then the Court will decline to allow them to be filed.
The February 2021 order is as follows:
(1) Pursuant to the Vexatious Proceedings Act 2008, s 8(7)(b) the Defendant is prohibited from instituting proceedings in NSW against or relating to: -
(a) 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 the Defendant's employment;
(b) 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 the Defendant's professional practice (except with the consent of the Nursing and Midwifery Council);
(c) the subject matter of proceedings brought in the following proceedings:
Tribunals
(i) Sharmain Naicker and NSW Health Service - Government of New South Wales for South Eastern Sydney Illawarra Area Health Service - Matter No. IRC 427 of 2008.
(ii) Sharmain Naicker and South Eastern Sydney Local Health District - Matter No. IRC 927 of 2014.
(iii) Sharmain Naicker and South Eastern Sydney Local Health District - Matter No. IRC 318 of 2015.
(iv) Fair Work Commission Proceedings No: 2016/4065 - Sharmain Naicker v South Eastern Sydney Local Health District t/as Royal Hospital for Women.
(v) Civil and Administrative Tribunal of New South Wales File No: 2017/25026 - Sharmain Clarke v South Eastern Sydney Local Health District.
(vi) Civil and Administrative Tribunal of New South Wales File No 2020/32150 - Sharmain Daisy Clarke v Nursing and Midwifery Council of New South Wales.
(vii) Civil and Administrative Tribunal of New South Wales File No: 2019/00126124 (subject to restriction pursuant to s 64 (1) of the Civil and Administrative Tribunal Act (NSW) 2013 that the name of the applicant is not to be published).
Local Court of New South Wales
(viii) Local Court Case No: 2019/285426 - Sharmain Daisy Clarke v Violet Stojkova and Hicksons Lawyers.
District Court of New South Wales
(ix) District Court Case No: 2016/245332 - Sharmain Daisy Clarke v Susan Dale.
(x) District Court Case No: 2017/350767 - Sharmain Daisy Clarke v Julie Herrick.
(xi) District Court Case No: 2018/113261 - Sharmain Daisy Clarke v Nursing and Midwifery Council of New South Wales.
(xii) District Court Case No: 2018/120717 - Sharmain Daisy Clarke v South Eastern Sydney Local Health District and Nursing and Midwifery Council of New South Wales.
(xiii) District Court Case No: 2018/277318 - Sharmain Daisy Clarke v Maria Fenn.
(xiv) District Court Case No: 2019/134260 - Sharmain Daisy Clarke v Julie Herrick and South Eastern Sydney Local Health District.
(xv) District Court Case No: 2020/128851 - Sharmain Daisy Clarke v Hicksons Lawyers.
(xvi) District Court Case No: 2020/199084 - Sharmain Daisy Clarke v South Eastern Sydney Local Health District.
Supreme Court of New South Wales
(xvii) Supreme Court Case No: 2017/101668 - Sharmain Daisy Clarke v South Eastern Sydney Local Health District and Julie Herrick.
Federal Circuit Court
(xviii) Federal Circuit Court proceedings SYG1333/2018 - Sharmain Daisy Clarke v South Eastern Sydney Local Health District, Vanessa Madunic, Gerry Marr, Julie Herrick, and Maria Fenn.
(xix) Federal Circuit Court proceedings SYG3310/2018 - Sharmain Daisy Clarke v Nursing and Midwifery Council of New South Wales, Nursing and Midwifery Board, New South Wales Nurses and Midwives Association and Violet Stojkova.
(xx) Federal Circuit Court Case number SYG160/2020 - Sharmain Daisy Clarke v Julie Herrick, Virginia King, Susan, Dale, Bronwyn Hickman, Lesley Finn, Maria Fenn, Annette Wright and South Eastern Sydney Local Health District (incorrectly sued as Royal Hospital for Women).
Federal Court of Australia
(xxi) Federal Court Case No: NSD166/2019 - Sharmain Daisy Clarke v Nursing and Midwifery Council of New South Wales.
(xxii) Federal Court Case No: NSD167/2019 - Sharmain Daisy Clarke v South Eastern Sydney Local Health District.
(xxiii) Federal Court Case No: NSD691/2019 - Sharmain Daisy Clarke v Susan Dale.
(xxiv) Federal Court Case No: NSD1295/2019 - Sharmain Daisy Clarke v Nursing and Midwifery Council of New South Wales, Nursing and Midwifery Board, New South Wales Nurses and Midwives Association and Violet Stojkova.
(xxv) Federal Court Case No: NSD34/2020 - Sharmain Daisy Clarke v Nursing and Midwifery Council of New South Wales, Nursing and Midwifery Board, NSWNMA and Violet Stojkova.
(xxvi) Federal Court Case No: NSD1880/2019 - Sharmain Daisy Clarke v South Eastern Sydney Local Health District.
(xxvii) Federal Court Case No: NSD1881/2019 - Sharmain Daisy Clarke v Nursing and Midwifery Council of New South Wales.
(xxviii) Federal Court Case No: NSD1882/2019 - Sharmain Daisy Clarke v Susan Dale.
(2) Pursuant to the Vexatious Proceedings Act 2008, s 8(7)(a) the following District Court of NSW proceedings are stayed:
(a) Sharmain Daisy Clarke v Hicksons Lawyers (2020/128851); and
(b) Sharmain Daisy Clarke v Dr Adams & Ors (2020/294918) insofar as those proceedings concern Anthony Samuels and Karen Arnold.
For the purposes of these proceedings, it is not necessary for the Court to give a full summary of the many proceedings commenced by Ms Clarke. The Court is much assisted by the detailed summary of those proceedings contained in Schmidt AJ's judgment of 9 February 2021, which I gratefully adopt. These reasons should be read with her Honour's reasons.
The structure of the February 2021 orders should be noted. They prohibit the instituting of proceedings against named entities, namely, South-Eastern Sydney Local Health District ("The Health District"), the Nursery and Midwifery Council of New South Wales ("NMC") and the Health Professional Councils Authority ("HPCA"). But these orders do not merely create prohibitions against joining specific persons, they also create prohibitions in relation to specific subject matters.
In sub-paragraph (c) the prohibition from instituting proceedings is extended to matters "relating to the Health District, the NMC, the HPCA, and the proceedings listed in sub-paragraph (c)". The subject matter prohibition also derives scope from sub-paragraphs (a) and (b) in that the prohibition extends to "instituting proceedings relating to the Health District, in relation to any matter arising from [Ms Clarke's] employment". The subject matter prohibition extends to the NMC in relation to "any matter arising from [Ms Clarke's] professional practice". Those are broad prohibitions.
The various actions and proceedings detailed in Schmidt AJ's judgment, that had previously been brought by Ms Clarke include allegations against a number of nurses, namely Susan Dale, Julie Herrick, Maria Fenn and Virginia King in respect of their alleged conduct and in respect of the conduct of the Local Health District. This judgment makes no findings about the merits of those allegations which have been defended and answered on several occasions. But it is clear from Schmidt AJ's judgment that many of these allegations have been dealt with and dismissed on their merits, although some have been struck out or dealt with on procedural grounds.
The summons and affidavits sought to be filed by Ms Clarke, in my view, come within the prohibition against instituting proceedings in the February 2021 orders. Although these proceedings are brought against the HCCC, which is not one of the entities Court under the prohibition of the February 2021 orders, those orders are wide enough, in my view, to prohibit the filing of these proceedings. The February 2021 orders prohibit proceedings in relation to specific subject matters, as well as proceedings against specific individuals or entities, and the proposed summons and affidavit cover the prohibited specific subject matters.
Ms Clarke has sought to argue firstly that the HCCC is not a prohibited defendant under the February 2021 orders. In this respect her submission is correct. But it overlooks the subject matter prohibition of the February 2021 orders. For the following reasons that subject matter prohibition applies to prohibit the filing of these proceedings.
Ms Clarke's summons seeks orders for damages for harm that she claims occurred to her. It is not readily possible to discern the nature of the claim of harm from her summons, which is couched in general terms. The affidavit which she has sought to file in support of the proposed summons and the various annexures to it clearly disclose that the allegations against the HCCC are of a failure to investigate complaints that fall within the subject matter of some of the previous litigation identified in the February 2021 order.
Ms Clarke's affidavit of 19 April 2022 discloses that the case against the HCCC involves the subject matter of its apparent failure to act in relation to complaints about conduct within the New South Wales health system, which included mandatory notifications to the NMC and the HPCA and complaints and notifications about Ms Herrick, Ms Dale and Ms King, and notifications about public safety and patient safety in relation to those persons and in relation to the Health District. It relates to alleged non-compliance with internal policies, procedures, guidelines and business rules by the Health District and these specific nurses.
Notwithstanding that this is a proposed claim for damages against the HCCC, all those subject matters overlap considerably with the prior proceedings. When the prohibited subject matter was pointed out to Ms Clarke in her claim, she directed the Court's attention to certain annexures to her affidavit. But examination of those annexures shows that the complaints about the HCCC cover the same subject matter as the previous proceedings, namely incidents and "near misses" which Ms Clarke alleges were overlooked by Ms Herrick and Ms King and Ms Daley, leading to alleged medical consequences for patients. The annexures to Ms Clarke's affidavit also refer to the NMC's examination of the conduct of those nurses.
In my view, the fact that these subject matters are raised in the proposed proceedings is enough to bring them within the prohibition of the February 2021 orders. The overlapping subject matters are sufficient, in my view, to prevent these proceedings being filed and I will so order.
When the Court said to Ms Clarke that it was minded to dismiss the proceedings on these grounds, she then argued that there were other subject matters complained of in these proceedings against the HCCC, which were unrelated to the subject matter of the prohibitions in the February 2021 judgment. For example, she pointed to a contention that she had herself been denied proper treatment in hospital on several occasions and other matters of a kind which she claimed were new allegations.
That does not save the present proceedings and allow them to be filed. Whilst the proposed summons and affidavit sought to be filed contain subject matter prohibited by the February 2021 orders, the Court will act upon those orders and prevent their being filed. It is not the responsibility of the Court in these circumstances to attempt to go through the material presented for filing and work out what parts of them are caught by the subject matter prohibition, and what parts of the material are new and not prohibited. That is a matter for Ms Clarke to undertake. If she wishes to bring another application to file other proceedings in which there is no overlapping subject matter with the prior proceedings, that is a matter for her at some future time.
Ms Clarke also submitted that she wished to amend her current proceedings. But the court explained to her that amendments of these proceedings is not possible under the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005, because the proceedings have not yet been filed. All that is to be done now is for the proposed court process to be given back to Ms Clarke. And it is for her to decide whether she wants at some future time to attempt to make them wholly compliant with the existing court orders before she attempts to file them again.
For these reasons, I will order that the plaintiff is prohibited from instituting the proposed proceedings. I will mark her proposed summons and affidavit as exhibit A, which may be placed in the file of the original proceedings in which Schmidt AJ made the original 2021 orders. And I decline to allow the summons and affidavit, exhibit A, to be filed.
[2]
Conclusion and Orders
Accordingly, the Court makes the following orders and directions:
1. Order the Plaintiff is prohibited from instituting the proceedings proposed as described in the reasons published today;
2. The Court declines to allow the Plaintiff's affidavit and summons, exhibit A, to be filed; and
3. Note that the Court makes no orders as to the costs of this application.
[3]
Amendments
27 April 2022 - paragraph [4] - corrected numbering of list
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Decision last updated: 27 April 2022