On 17 September 2019, the plaintiffs, South Eastern Sydney Local Health District and Nursing and Midwifery Council of New South Wales, commenced these proceedings, seeking orders under the Vexatious Proceedings Act 2008 (NSW) ("the Act") that the defendant, Sharmain Clarke, be prohibited from instituting proceedings, and that all her existing proceedings be stayed. On 9 February 2021, Schmidt AJ made orders to that effect, at least insofar as the plaintiffs, their staff, consultants, executive officers and agents were concerned: South Eastern Sydney Local Health District v Clarke [2021] NSWSC 63.
However, before judgment was delivered, Schmidt AJ listed the proceedings on 2 February 2021 and made these orders:
1. No further documents are to be emailed to her Honour's Associate/Chambers;
2. No further documents are to be filed with the Court unless leave is first sought of the Court in the usual manner: by a motion supported by affidavit.
Notwithstanding those orders, and prior to the delivery of her Honour's judgment, the defendant filed a Notice of Motion on 5 February 2021 seeking the following orders:
1. The defendant request leave from this Honourable Court to file a Notice of Motion and Affidavit to assist the Courts as to why the following orders are pursued, the defendant requests the order be granted for the filing of a Notice of Motion and affidavit dated 3 February 2021
2. The defendant requests an order be granted that the amended summons application filed on 23 March 2020 by the First and Second Plaintiffs be dismissed on grounds as set out in the defendant's affidavit sworn and filed 3 February 2021
3. The defendant requests an order be granted otherwise that the First and Second Plaintiffs summonses applications made under the Vexatious Proceedings Act 2008 be dismissed on grounds governed as an invalid application as set out by the defendant in her annexures attached to 3 February 2021 and exhibits referred to in the materials tendered to the Court on 16 and 17 November 2020.
4. The defendant requests an order made for an urgent application for stay of enforcement of any costs' applications to be made by the plaintiffs whereby, core crux of the matters emulates to secondary and adversary bodies involved in strenuous litigation from causes of actions risen from similar facts.
5. The defendant requests an order made for an urgent application for a stay in any enforcements challenged by the plaintiffs in response to objections in the defendant's cross claims from filing of cross summonses in the matter/s complained about for legitimate and valid claims owed to the defendant and or otherwise;
6. The defendant requests leave be granted by an order made by this Honourable Court to join parties as to the Courts' discretion in the matter/s complained about by reason of the filing of the defendant's Notice of Motion dated 13 October 2020.
7. The defendant requests the Courts make an order in the highest consideration relating to Annexure SDC 5-page 167 paragraph 7 to follow the usual course of hearing the defendant's cross claims in the form of Cross Summonses.
8. The defendant requests leave be granted to the defendant to assist the Courts make an order as to why all judgements made in the State of New South Wales in the matter/s complained about in favour of the First and Second Plaintiffs be rescinded, revoked, amended and or set aside.
9. The defendant requests and order be considered and made to refer the defendant for legal assistance for the purposes of a task of compiling cross summonses in the appropriate forms in the matter/s complained about.
10. The defendant requests an order for costs be thrown away in filing this notice of motion and or seek the motion on foot dated 13 October 2020 be amended to carry the orders sought herein;
11. The defendant requests the Courts make any other order the Courts think fit.
This judgment concerns that notice of motion.
By way of background, Ms Clarke is a nurse who was dismissed from her employment with the South Eastern Sydney Local Health District in 2015, and has since unsuccessfully brought numerous and frequent proceedings against the Health District, as well as its employees and solicitors. The matters that were not in issue in the proceedings before Schmidt AJ were summarised by her Honour as follows:
1. Ms Clarke was trained as a nurse in South Africa, registered as a nurse in Australia in 2003 and then worked as a nurse at hospitals in Sydney, including at the Royal Hospital for Women, where her employment was terminated in 2015.
2. The result of complaints made about Ms Clarke eventuated in the imposition of conditions on her registration under the Health Practitioner Regulation National Law 2009 (NSW). Ms Clarke was required to undergo a health assessment with the eventual result that she has been prevented from working as a registered nurse, a matter of ongoing complaint, including in these proceedings.
3. Ms Clarke's appeal against the imposition of such conditions and requirements was dismissed: Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163. There was no appeal from that decision, but in 2020 Ms Clarke lodged an application for extension of time. She also later pursued other applications in relation to her registration, including finally by the orders sought in her October 2020 motion in these proceedings, by which she sought to have this decision reviewed.
4. As at March 2020 the condition that Ms Clarke not practise remained in place: Clarke v Nursing and Midwifery Council of New South Wales [2020] NSWCATOD 58 at [12]. In those proceedings she had also sought to have the 2017 decision reviewed, but that application was found to be misconceived and thus summarily dismissed, the 2017 judgment being a final decision not affected by jurisdictional error: at [57]-[62].
5. Ms Clarke has a lengthy history of other litigation relating to her former employment in proceedings she has brought, as well as those brought on her behalf by the New South Wales Nurses and Midwives' Association, including before the New South Wales Industrial Relations Commission and the Fair Work Commission.
6. Ms Clarke has brought proceedings arising out of her employment and nursing registration against the Local Health District, its employees and solicitors and the Council and others in the Civil and Administrative Tribunal, the Local Court, the District Court, this Court, the Court of Appeal, the High Court, the Federal Circuit Court, the Federal Court, the Australian Human Rights Commission and the Anti-Discrimination Board. Some of these proceedings are still on foot.
7. In 2016 and again recently, Ms Clarke has also pursued reports she has made to ICAC about various alleged misconduct, which it appears ICAC has not acted on. She has also pursued various complaints to other bodies.
Before giving consideration to the orders sought by the defendant in her notice of motion, the history of the proceedings since Schmidt AJ's judgment should be mentioned.
On 16 February 2021, the defendant filed a summons seeking leave to appeal from Schmidt AJ's orders. Thereafter, on 9 March 2021, she filed a notice of motion which came before Emmett AJA. His Honour said that the orders she sought were difficult to comprehend, but he considered that she sought expedition of her summons for leave to appeal, and a stay of Schmidt AJ's orders. His Honour dismissed the notice of motion, but said that he would make arrangements with a view to expediting the hearing of her summons: Clarke v South Eastern Sydney Local Health District [2021] NSWCA 43.
Of some relevance for the present notice of motion, is what his Honour said at [5]:
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.
The summons for leave to appeal came on for hearing before Gleeson JA and Emmett AJA on 26 April 2021. Judgment was given on 13 May 2021, dismissing the summons: Clarke v South Eastern Sydney Local Health District [2021] NSWCA 84. The Court of Appeal found that Ms Clarke "has not demonstrated the slightest possibility of error on the part of the primary judge or demonstrated any basis upon which an appeal could be allowed". It is of some significance that it does not appear from that judgment that any complaint was made about the motion of 5 February 2021 not being dealt with by Schmidt AJ.
[2]
Vexatious Proceedings Act
Section 4 of the Act defines proceedings to include:
(d) any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings, criminal proceedings or proceedings before a tribunal, and
(e) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way.
Section 5 defines instituting proceedings to include:
(a) for civil proceedings - the taking of a step or the making of an application that may be necessary before proceedings can be started against or in relation to a party,
Section 14 sets out the procedure for seeking leave to institute proceedings. It relevantly provides:
14 Application for leave to institute proceedings
(1) This section applies to a person (the applicant) who is:
(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or
(b) acting in concert with another person who is subject to an order referred to in paragraph (a).
(2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting.
(3) The applicant must file an affidavit with the application that:
(a) lists all occasions on which the applicant has applied for leave:
(i) under this section, or
(ii) before the commencement of this section - as required by an order under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970, and
(b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and
(c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.
(4) The applicant must not serve a copy of the application or affidavit on any person unless:
(a) an order is made under section 16 (1) (a), and
(b) the copy is served in accordance with the order.
[3]
Consideration
The short answer to the motion filed 5 February 2021 is that it should be dismissed because it was filed in contravention of the orders of Schmidt AJ on 2 February 2021. Even if that is not correct, the orders made by Schmidt AJ on 9 February 2021 have the effect of staying the prosecution of this motion. Finally, the combination of ss 4, 5 and 14 of the Act have the effect that Ms Clarke cannot move on her motion previously filed, because that is taking a step in interlocutory proceedings, and the procedure in s 14 must be followed.
Ms Clarke read and relied on two affidavits sworn by her, both on 29 March 2021. One consisted, with annexures, of 274 pages, and the other, with annexures, of 173 pages. Ms Clarke explained that the affidavit of 3 February 2021, referred to in prayer 1 of the notice of motion, was re-sworn on 29 March 2021. It was the affidavit consisting of 173 pages. In respect of those affidavits, in both cases, the substantive parts of the affidavits challenged the summons which the plaintiffs had filed, and which was determined by Schmidt AJ. The affidavits complained that a notice of motion Ms Clarke had filed on 13 October 2020 had not been dealt with. This was a matter about which Ms Clarke made complaint at the hearing of her summons for leave to appeal. The Court of Appeal said at [6] that Schmidt AJ was appropriately satisfied that Ms Clarke should not be permitted to move on that motion before the plaintiffs' summons had been determined.
Ms Clarke asserted in the affidavits that she had been denied procedural fairness in the way the plaintiffs' summons had been dealt with by Schmidt AJ. She raised matters to the effect that the various proceedings she had instituted were not vexatious, and she dealt, to some extent, with the substance of her complaints raised in all of the proceedings considered by Schmidt AJ, concerning her psychiatric health and her grievances about the way she perceived she had been dealt with.
The annexures to the affidavits consisted largely of prior affidavits Ms Clarke had filed, which themselves annexed documents related to her substantive grievances.
Ms Clarke identified Annexure SDC6 to one of those affidavits as a document containing submissions she wished to make on the present application. The substance of those submissions consisted of complaints directed to the proceedings brought by the plaintiffs to have her declared vexatious, and directed to the way the proceedings were dealt with by Schmidt AJ. They were submissions more appropriately made to the Court of Appeal, either on a leave to appeal application, or thereafter, if leave was granted.
The affidavits filed by Ms Clarke did not meet any of the criteria outlined in s 14(3) of the Act. Section 15(1)(a) of the Act, therefore, requires me to dismiss the application. Even if the affidavit had been served in accordance with the statutory requirements, I would have dismissed the application for leave on the basis that the notice of motion is vexatious and/or there are no prima facie grounds for it (s 15(1)(b) - (c)). A number of the orders pressed sought either to re-litigate matters which were already determined in earlier proceedings, or are a challenge to the judgment of Schmidt AJ.
However, as Ms Clarke and the plaintiffs directed argument to each of the prayers in the notice of motion, I shall consider them on the basis that Ms Clarke was permitted to move on them. At the outset, Ms Clarke said that she no longer moved on prayers 3 and 4. However, at a later point in the hearing she sought to pursue prayer 4.
[4]
Prayer 2
Ms Clarke came to accept, during argument, that what was raised had been dealt with by Schmidt AJ, and that any complaint about the disposition of the plaintiffs' summons would need to be dealt with by the Court of Appeal.
This prayer is refused.
[5]
Prayer 4
Ms Clarke explained that what she meant by this prayer was that there should be a stay of the costs orders in all of the proceedings she has instituted where costs orders were made against her. She also wanted a stay on the costs order made by Schmidt AJ.
I explained to Ms Clarke that in relation to all of the proceedings, other than the present proceedings, it would be necessary for her to seek stays in each of those proceedings. She could not do it by a general order sought in these proceedings. I also explained to her that it would now be necessary for her to follow the procedure in s 14 of the Act as a result of the orders made by Schmidt AJ, if she wanted to pursue such orders. Ms Clarke ultimately accepted those matters.
In relation to a stay on the costs order made by Schmidt AJ, no basis was shown in any of Ms Clarke's material. I suggested to her that, since she had filed a summons for leave to appeal, she should pursue a stay in the Court of Appeal. Since the hearing before me, the Court of Appeal has refused Ms Clarke's leave to appeal. In those circumstances, no basis is shown for staying Schmidt AJs' costs orders.
This prayer is refused.
[6]
Prayers 5, 6 and 7
To the extent that prayer 5 sought a stay of Schmidt AJ's judgment, whether for filing cross-claims as it seems to imply, or otherwise, that was a matter raised by Ms Clarke before Emmett AJA, and refused. His Honour said:
[6] 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.
…
[13] 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.
[14] For those reasons, I propose to order that the notice of motion filed on 9 March 2021 be dismissed.
These prayers appear to seek leave for Ms Clarke to file cross-claims against unspecified parties. The reference in prayer 7 to "Annexure SDC5-page 167 paragraph 7" is a reference to part of the judgment of Harrison J, when his Honour dealt with Ms Clarke's notice of motion filed 3 February 2020 in the plaintiffs' proceedings. That was a motion where Ms Clarke was seeking referral for pro bono assistance. His Honour refused that application, and made other orders: South Eastern Sydney Local Health District v Clarke [2020] NSWSC 1155.
Paragraph 7 of his Honour's judgment says this:
Ms Clarke has indicated that she wishes to file, or has already filed, a cross summons. My anticipation, having sought her assistance on this question, is that Ms Clarke wishes in that context to agitate some, if not all, of the concerns that appear to have spawned the many proceedings about which the plaintiff presently complains. It does not seem to me to be an efficient use of this Court's time to postpone the hearing of the plaintiff's claim until the foreshadowed cross summons is ready to be heard. Both parties otherwise agree that the plaintiff's claim is now in a position to be allocated a date for hearing.
His Honour fixed the matter for hearing, and made this order:
(3) To the extent that may be required, stay the hearing of Ms Clarke's cross summons until further order.
The effect of Schmidt AJ's orders is that Ms Clarke cannot file any cross-claims unless she follows the procedure set out in s 14 of the Act. I cannot shortcut that procedure simply be giving leave to file such claims. In any event, no formulated claims were put forward.
These prayers are refused.
[7]
Prayer 8
This prayer echoes what was sought in Ms Clarke's notice of motion of 3 October 2020. The explanation given by Ms Clarke in her oral submissions for what this prayer means, suggested that she was desirous of setting aside all the judgments which have been given against her. She suggested that, if Schmidt AJ had not delivered her judgment, Ms Clarke then would have sought to explain why the summons brought by the plaintiffs would have failed. There was a suggestion of a denial of procedural fairness by Schmidt AJ, because Ms Clarke said that she was not able to make submissions on some aspect of the case.
Ms Clarke had first sought to pursue leave to file cross-claims when the motion for pro bono assistance was before Harrison J. I set out above (at [28]) what Harrison J said in that regard.
At the hearing before Schmidt AJ, she sought to have her 3 October motion heard before the plaintiffs' summons. Justice Schmidt said:
[19] From her submissions it emerged that Ms Clarke's position was like that which she took before Harrison J. Essentially, she wanted to re-agitate concerns which she had unsuccessfully pursued in the many proceedings to which her cross summons and the motion were directed. That the orders Ms Clarke sought in relation to the judgments she identified were within the Court's power was not apparent, but that did not need then to be decided. Ms Clarke accepted that the orders she so sought were similar to those sought in the cross summons which Harrison J had dealt with.
[20] Ms Clarke's application to have her motion heard before the summons was dealt with thus had to be refused, given that it was apparent that she was thereby seeking to circumvent the orders which Harrison J had made.
[21] Like Harrison J, I was satisfied that the motion could not then justly be heard and that the hearing of the summons had to proceed. That course could not be diverted by Ms Clarke's desire to re-litigate the many earlier cases in which she had not succeeded. It followed that the leave sought to issue the proposed subpoenas could also not be granted.
It seemed to me that what was sought in prayer 8 was yet another attempt to have an order made that was refused by Harrison J and Schmidt AJ. There was the further problem that the effect of Schmidt AJ's judgment was to preclude this order in any event. It was a further attempt to re-agitate and re-litigate the issues which she had unsuccessfully pursued in the proceedings that resulted in the present proceedings and the orders under the Act made by Schmidt AJ. Now, as I said earlier, as a result of that judgment, it would be necessary for Ms Clarke to follow the procedure in s 14 of the Act to achieve the end sought in this prayer.
When I pointed out to Ms Clarke that any challenge to Schmidt AJ's judgment would have to be dealt with by the Court of Appeal, she accepted that that was so. She then asked that I adjourn the hearing of this motion until after the Court of Appeal had dealt with her summons for leave to appeal. I refused to adjourn the motion. It was not apparent how an adjournment would advance the motion. If matters raised by the notice of motion were only appropriate for the Court of Appeal to deal with, adjourning the motion would not result in a different outcome. None of the matters to be dealt with by the Court of Appeal would result in the proceedings being remitted to me simply because I was hearing Ms Clarke's motion.
This prayer should be refused.
[8]
Prayer 9
By this prayer, Ms Clarke sought pro bono assistance pursuant to UCPR r 7.36 for "the purposes of a task of compiling cross summonses in the appropriate forms in the matter/s complained about". Under r 7.36, the Court may make such an order provided it is in "the interests of the administration of justice to do so".
This prayer is, self-evidently, related to Ms Clarke's desire to file cross-claims. It is instructive to note what Harrison J said when his Honour considered Ms Clarke's earlier application for pro bono assistance:
[5] Doing the best I can, it does not seem to me that it is likely that there is any utility in again referring Ms Clarke for pro bono legal assistance. As her affidavit makes plain, Ms Clarke has been the beneficiary of legal assistance in the past from the Redfern, Matraville, Kingsford, Blacktown and Toongabbie Legal centres since as long ago as 2016 and as recently as this year. Ms Clarke has deposed to the fact that Legal Aid was not prepared to assist in her employment matter as early as June 2016 "because of the factual and legal complexities distinct in the matter complained about". It is my view, having reviewed the wealth of material filed by Ms Clarke, as well as that to which this Court will presumably be directed for the purpose of deciding the plaintiff's claim, that there is no prospect that a referral for legal assistance will be beneficial or that it will be of any practical benefit.
I am similarly satisfied that a referral for pro bono assistance will neither be beneficial nor of any practical benefit. What is contained in Schmidt AJ's judgment is testimony to that. Leave to appeal to the Court of Appeal was refused. The Court of Appeal said:
[11] The primary judge concluded that that situation had been established in the case of Ms Clarke and that the evidence well established how repeatedly and frequently Ms Clarke had unsuccessfully pursued her beliefs in the proceedings that she has brought regarding her various claimed mistreatments and the other misconduct that she has repeatedly alleged against others with whom she has worked, the Health District, the Council and others. Her Honour observed that, despite all the proceedings that Ms Clarke has pursued, she has not yet established any of her claims on their merits. Nevertheless, her Honour said, despite that lack of success, in late 2020, Ms Clarke commenced even further proceedings in the District Court in which she seeks to pursue the same or similar claims against the Health Service and its employees, which she has failed to establish in earlier cases. Her Honour was well satisfied that there can be no question that Ms Clarke had frequently instituted and conducted vexatious proceedings in Australia and that the Court's power to make orders sought by the respondents was enlivened and must be exercised.
…
[13] No error of law or misapplication of the law on the part of the primary judge has been demonstrated. Further, Ms Clarke was unable to identify any factual finding made by the primary judge that could be shown to be erroneous. Rather, Ms Clarke repeatedly sought to raise the matter of her complaint about the termination of her employment and the imposition of conditions on her entitlement to practise. She was unable to identify any finding made by the primary judge that she said was erroneous.
A court should not ordinarily refer a matter for pro bono assistance if it considers the claim is without merit: Phu v NSW Department of Education and Training [2011] NSWCA 119; M v Director General, Department of Family and Community Services [2013] NSWCA 118 at [21]. I note also what Leeming JA said in Neale v Commonwealth Bank of Australia Ltd [2015] NSWCA 136 at [3] to [6] about the demands on the pro bono system. In the face of Schmidt AJ's judgment, there is no basis for referring Ms Clarke for pro bono assistance.
This prayer should be refused.
[9]
Prayer 10
No basis is shown for ordering any costs to Ms Clarke because she filed this notice of motion. The suggestion appears to be that, if the motion filed 3 October 2020 had been dealt with, the present motion would not have been necessary. However, Schmidt AJ determined not to deal with the October motion until she had dealt with the plaintiffs' summons. Having found in favour of the plaintiffs on the summons, the motion became otiose. The Court of Appeal upheld that approach.
During oral submissions, Ms Clarke submitted that what she meant by this order (despite what it says) was that it was "a motion for a no cost jurisdiction". That was said to be because her human rights have been breached. She submitted that, whatever the outcome on the motion, there should be no order for costs.
This Court is not a "no costs jurisdiction". A party who brings proceedings, or an application within proceedings, is liable to pay the other party's costs if the initiating party is unsuccessful. That is the usual rule. There are no exceptions for breaches of human rights. In any event, Ms Clarke does not show, especially in the face of Schmidt AJ's judgment, that her human rights have been breached.
There is no basis for the usual rule not to apply in the present case.
This prayer should be refused.
[10]
Conclusion
I make the following orders:
1. The defendant's notice of motion filed 5 February 2021 is dismissed.
(2) The defendant is to pay the plaintiffs' costs of the notice of motion.
[11]
Amendments
04 August 2021 - Typographical error in para [1] corrected
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Decision last updated: 04 August 2021