Clarke (Naicker) v Health Care Complaints Commission

[2024] NSWSC 153

Supreme Court

New South Wales

Medium Neutral Citation:

Clarke (Naicker) v Health Care Complaints Commission [2024] NSWSC 153

Hearing dates:

31 January 2024

Date of orders:

27 February 2024

Decision date:

27 February 2024

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

Pursuant to r 13.4(1)(c) of the Uniform Civil Procedure Rule 2005, proceedings bearing the case number 2023/00168284 are dismissed with costs.

Catchwords:

JUDICIAL REVIEW – summons seeking judicial review against background of extensive litigation – vexatious litigant appealing NCAT decision – where similar matters have been heard by Court of Appeal and decision is reserved at date of hearing – question of whether issues raised substantially replicate issues before appellate court – whether appeal is an abuse of process

Legislation Cited:

Health Practitioner Regulation National Law

Industrial Relations Act 1996 (NSW)

Mental Health Act 2007 (NSW)

National Law and the Health Care Complaints Act 1993 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Agar v Hyde (2000) 201 CLR 552

Clarke (previously Naicker) v Nerrick [2017] NSWDC 302

Clarke and Midwifery Council New South Wales (No 4) [2019] NSWDC 659

Clarke v Adams [2021] NSWSC 1665

Clarke v Dale; Clarke v Herrick (NSW District Court, 8 October 2020, unrep)

Clarke v Fenn [2018] NSWDC 336; Clarke v Nursing and Midwifery Council of New South Wales (No 2) [2019] NSWDC 531

Clarke v Health Care Complaints Commission [2023] FedCFamC2G 916

Clarke v Herrick [2019] NSWDC 533

Clarke v Herrick [2020] NSWCA 71

Clarke v Herrick [2021] NSWCA 102

Clarke v Midwifery Council of New South Wales [2020] NSWCATOD 58

Clarke v New South Wales Nurses and Midwives Association (The Union) [2022] NSWSC 349

Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163

Clarke v Nursing and Midwifery Council New South Wales [2019] FCA 1782

Clarke v Nursing and Midwifery Council of New South Wales & Ors (No 2) [2019] FCCA 3035

Clarke v Nursing and Midwifery Council of New South Wales & Ors (No 3) [2019] FCCA 3159

Clarke v Nursing and Midwifery Council of New South Wales & Ors (No 4) [2019] FCCA 3639

Clarke v Nursing and Midwifery Council of New South Wales & Ors [2019] FCCA 2127

Clarke v Nursing and Midwifery Council of New South Wales (No 3) [2019] NSWDC 532

Clarke v Nursing and Midwifery Council of New South Wales [2020] FCA 1617

Clarke v Nursing and Midwifery Council of New South Wales [2020] NSWDC 641

Clarke v Nursing and Midwifery Council of New South Wales [2021] NSWCATOD 32

Clarke v Nursing and Midwifery Council of New South Wales [2022] NSWSC 15

Clarke v South East Sydney Local Health District (No 2) [2018] NSWSC 357

Clarke v South East Sydney Local Health District (No 2) [2018] NSWSC 357

Clarke v South Eastern Sydney Local Health District & Ors [2019] FCCA 3769

Clarke v South Eastern Sydney Local Health District (No 3) [2019] NSWSC 1075

Clarke v South Eastern Sydney Local Health District [2017] NSWCATAD 81

Clarke v South Eastern Sydney Local Health District [2020] FCA 1616

Clarke v South Eastern Sydney Local Health District [2020] HCASL 135

Clarke v South Eastern Sydney Local Health District [2020] NSWCA 8

Dey v Victorian Railways Commissioners (1949) 78 CLR 62

Health Care Complaints Commission v Clarke [2022] NSWCATOD 146

Naicker v South Eastern Sydney Local Health District t/as Royal Hospital for Women [2016] FWC 5697

Sharmain Daisy Clarke v Health Care Complaints Commission (No 2) [2024] NSWCA 15

Sharmain Daisy Clarke v Health Care Complaints Commission (Recusal Application) [2024] NSWCA 16

Sharmain Daisy Clarke v South East Sydney Health District (No 2) [2018] NSWCA 226

Sharmain Naicker and NSW Health Service - Government of New South Wales for South Eastern Sydney Illawarra Area Health Service [2008] NSWIRComm 1104

Category:

Principal judgment

Parties:

Sharmain Daisy Clarke (Applicant)
Health Care Complaints Commission (First Respondent)
New South Wales Civil and Administrative Tribunal Occupational Division (Second Respondent)

Representation:

Counsel:
A Petrie / E Lambert (First Respondent)

Solicitors:
Applicant (Self-represented)
Health Care Complaints Commission (First Respondent)
Crown Solicitor’s Office (Second Respondent)

File Number(s):

2023/168284

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

New South Wales Civil and Administrative Tribunal (NCAT)

Jurisdiction:

Occupational Division

Citation:

Health Care Complaints Commission v Clarke [2022] NSWCATOD 146

Date of Decision:

17 November 2022

Before:

The Hon D A Cowdroy, AO KC, Principal Member
S Daly, Senior Member
J O’Baugh, Senior Member
C Berglund, General Member

File Number(s):

2021/00298698

JUDGMENT

1. HER HONOUR: Since 2008, the plaintiff, Sharmain Daisy Clarke (formerly Naicker), has been a regular litigant in various state and federal jurisdictions. On my count, there are something like 45 public judgments dealing with claims initiated by or connected with Ms Clarke. ^[1] All of them have at their heart the question of the continuation of Ms Clarke’s occupation as a Registered Nurse.

   1. A chronology detailing the history of litigation is appended to these reasons as Appendix A.

2. This most recent claim was filed by her on 26 May 2023. It named the Health Care Complaints Commission (“the HCCC”) as first defendant and the New South Wales Civil and Administrative Tribunal (“NCAT” or “the Tribunal”) as second defendant to a claim seeking judicial review of orders made by NCAT on 17 November 2022, in part cancelling the plaintiff’s registration as a nurse: Health Care Complaints Commission v Clarke [2022] NSWCATOD 146 (“the NCAT decision”). Ms Clarke seeks judicial review of the decision of the NCAT from November 2022.

3. By Notice of Motion filed on 24 July 2023, the HCCC moves the Court for orders summarily dismissing the plaintiff’s claim or staying it permanently. The HCCC argues that the plaintiff’s claim seeks to re-agitate matters already raised before the Court of Appeal, and that it has no prospects of success.

The Evidence

4. The HCCC read two affidavits from solicitor Lucinda Cannon, affirmed on 24 July 2023 and 6 December 2023 respectively. Ms Cannon’s evidence largely collates and summarises matters which form part of the public record, ^[2] being a history of litigation related to Ms Clarke’s employment. The following is drawn from the evidence, and the Court’s file.

   2. The plaintiff objected to Ms Cannon’s evidence and sought to cross-examine her before the Court. That application was refused and the affidavit evidence was admitted at the hearing, there being no reason to conclude that Ms Cannon could offer any other evidence material to the issues than that contained in her affidavits.

5. Ms Clarke’s employment in Australia as a registered nurse (having previously studied in that field in her native South Africa) commenced in 2003. She was employed as a peri-operative nurse at the Prince of Wales Hospital from that year until 2008, when she was dismissed. Proceedings citing unfair dismissal were commenced in the Industrial Relations Commission under s 84 of the Industrial Relations Act 1996 (NSW). The proceedings were dismissed on or about 13 October 2008: Sharmain Naicker and NSW Health Service - Government of New South Wales for South Eastern Sydney Illawarra Area Health Service [2008] NSWIRComm 1104.

6. Ms Clarke was employed as a nurse by the Royal Hospital for Women in Randwick on 17 November 2011. The plaintiff initiated a dispute with the Hospital under the Industrial Relations Act in 2014, but the action was discontinued. On 5 May 2015 the plaintiff’s employment was terminated. Considerable litigation followed. The plaintiff sought to challenge her termination in the Fair Work Commission, but she was refused an extension of time in which to do so: Naicker v South Eastern Sydney Local Health District t/as Royal Hospital for Women [2016] FWC 5697.

7. In September 2015, proceedings were brought by the Nursing and Midwifery Council (“the NMC”) under s 150 of the Health Practitioner Regulation National Law (“the National Law”) following a complaint against Ms Clarke made by the South-Eastern Sydney Local Health District. Conditions were placed upon Ms Clarke’s registration following a decision of the NMC in November 2015.

8. Among the conditions were requirements for the plaintiff to undertake a performance assessment and to attend for a heath assessment. The plaintiff withdrew from a performance assessment and failed to attend four appointments for a health assessment scheduled in the first half of 2017. In July 2017, the NMC imposed a further restriction on the plaintiff’s registration, preventing her from working as a nurse and requiring her to be medically assessed. Thereafter the plaintiff launched action before the NCAT, seeking leave to proceed with a disability discrimination complaint, and a review of the decision of the NMC. Both claims were dismissed in 2017: see Clarke v South Eastern Sydney Local Health District [2017] NSWCATAD 81 and Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163 respectively.

9. Ms Clarke sought to challenge the decision of NCAT’s Administrative Division in the Supreme Court, but her claim was summarily dismissed as failing to disclose a reasonable cause of action: Clarke v South East Sydney Local Health District (No 2) [2018] NSWSC 357. A costs order was subsequently made against the plaintiff: Clarke v South East Sydney Local Health District (No 2) [2018] NSWSC 357.

10. Ms Clarke sought leave to appeal against the dismissal of her claim by the Supreme Court, and a limited grant of leave was made by the Court of Appeal permitting the plaintiff to advance one ground from her draft notice of appeal: Sharmain Daisy Clarke v South East Sydney Health District (No 2) [2018] NSWCA 226. When the matter was reconsidered by the Supreme Court it was again dismissed summarily: Clarke v South Eastern Sydney Local Health District (No 3) [2019] NSWSC 1075. An application for leave to appeal against that decision was dismissed by the Court of Appeal: Clarke v South Eastern Sydney Local Health District [2020] NSWCA 8, and the High Court refused special leave on 11 February 2020: Clarke v South Eastern Sydney Local Health District [2020] HCASL 135.

11. Parallel claims were made by the plaintiff in the Federal Circuit Court in which she sought damages from the NMC and others, but the claims were unsuccessful: Clarke v Nursing and Midwifery Council of New South Wales & Ors [2019] FCCA 2127; Clarke v Nursing and Midwifery Council of New South Wales & Ors (No 2) [2019] FCCA 3035; Clarke v Nursing and Midwifery Council of New South Wales & Ors (No 3) [2019] FCCA 3159; Clarke v Nursing and Midwifery Council of New South Wales & Ors (No 4) [2019] FCCA 3639; Clarke v South Eastern Sydney Local Health District & Ors [2019] FCCA 3769. Action was also taken by Ms Clarke, with no good outcome for her, in the Federal Court of Australia: Clarke v Nursing and Midwifery Council New South Wales [2019] FCA 1782; Clarke v South Eastern Sydney Local Health District [2020] FCA 1616; Clarke v Nursing and Midwifery Council of New South Wales [2020] FCA 1617. ^[3]

    3. A further claim to the Federal Court, filed on 10 November 2023, remains outstanding.

12. Ms Clarke brought a number of related claims in the District Court in this period, among them for defamation and professional negligence, but none were successful: Clarke (previously Naicker) v Nerrick [2017] NSWDC 302; Clarke v Fenn [2018] NSWDC 336; Clarke v Nursing and Midwifery Council of New South Wales (No 2) [2019] NSWDC 531; Clarke v Nursing and Midwifery Council of New South Wales (No 3) [2019] NSWDC 532; Clarke v Herrick [2019] NSWDC 533; Clarke and Midwifery Council New South Wales (No 4) [2019] NSWDC 659; Clarke v Dale; Clarke v Herrick (NSW District Court, 8 October 2020, unrep); Clarke v Nursing and Midwifery Council of New South Wales [2020] NSWDC 641. Applications for leave to appeal with respect to some of these multiple actions were separately dismissed: Clarke v Herrick [2020] NSWCA 71; Clarke v Herrick [2021] NSWCA 102.

13. Amongst all this litigation, Ms Clarke was taken ill in November 2019 and admitted to Royal North Shore Hospital on 28 November 2019 as an involuntary patient under the Mental Health Act 2007 (NSW). She remained hospitalised until 16 December 2019. Earlier, as part of her dispute concerning her registration, Ms Clarke had been assessed by Dr Anthony Samuels, psychiatrist, in March 2018; and in June 2019 an Impaired Registrants Panel found that the plaintiff had a health condition that detrimentally affected her capacity to safely practice as a nurse. On 24 March 2020, an Impaired Registrants Panel determined that Ms Clarke would remain a risk to the public were she to practice.

14. In 2020, the plaintiff brought further claims before NCAT relating to her employment, but each was dismissed: Clarke v Midwifery Council of New South Wales [2020] NSWCATOD 58; Clarke v Nursing and Midwifery Council of New South Wales [2021] NSWCATOD 32.

15. This tsunami of litigation resulted in a decision in this Court in 2021 in which Ms Clarke was declared a vexatious litigant and restrained from instituting further proceedings in NSW against the South Eastern Local Health District, the Nursing and Midwifery Council of New South Wales and the Health Professional Councils Authority, or on the subject matter of previous proceedings in the NCAT, Local, District, Supreme, Federal Circuit and Federal Courts: South Eastern Sydney Local Health District v Clarke [2021] NSWSC 63. In making orders, Schmidt AJ concluded, at [137] – [139]:

“A vexatious proceedings order is never lightly made. ‘The purpose of the statutory power is not to punish the litigant for past misdeeds. The purpose is to shield other litigants from harassment and to and to protect the Court itself from the expense, burden and inconvenience of baseless and repetitious suits’: Teoh at [56].

The evidence well establishes that the other parties to the vexatious proceedings which Ms Clarke has conducted need to be shielded from her relentless pursuit of her beliefs in the Courts and Tribunals in which she has pursued them.

That justice requires that the Court’s discretion be exercised to make those orders, confined appropriately as they finally were, is an inevitable conclusion given:

Ms Clarke’s repeated, unsuccessful and ongoing pursuit of her claims about:

how other employees had mistreated her and misconducted themselves in the various ways she has alleged, including by bullying and harassing her, subjecting her to racist and discriminatory treatment and defaming her;

the way in which her employment was wrongly or unfairly terminated;

how the conditions imposed her nursing registration were also the result of mistreatment and misconduct, including racist conduct; and

how the solicitors acting for the plaintiffs have misconducted themselves in advancing their clients’ cases when resisting the claims Ms Clarke repeatedly pursued.

the course of conduct Ms Clarke has continued to pursue and the cases she has advanced notwithstanding the conclusions reached by those who have dismissed or struck out her claims or refused her leave to appeal or review the decisions she has challenged, for the reasons they explained;

how Ms Clarke herself has made it apparent by the case she advanced in these proceedings, that she did not accept those conclusions and that unless constrained by the Court’s orders, she will not be deterred from pursuing her claims. She is intent on that course even though it has led to the point where it has already been concluded that there have been abuses of process, her claims having been pursued without reasonable grounds and in such a way as to harass and annoy those repeatedly made the subject of her applications;

that in these proceedings she sought to subpoena those who she has unsuccessfully pursued in her vexatious proceedings, despite having already repeatedly been forced to go to the time, trouble and expense of defending her claims, which have failed for all the reasons given in the judgments to which I have referred; and

It is apparent that even the costs orders made in others favour, cannot have not adequately dealt with the consequences of all that Ms Clarke has unsuccessfully pursued and yet remains intent on pursuing them”.

16. A number of subsequent applications to the Court by Ms Clarke for leave to institute proceedings were refused: Clarke v Adams [2021] NSWSC 1665; Clarke v Nursing and Midwifery Council of New South Wales [2022] NSWSC 15; Clarke v New South Wales Nurses and Midwives Association (The Union) [2022] NSWSC 349. Similar orders were made in the federal jurisdiction prohibiting Ms Clarke from initiating certain litigation: Clarke v Health Care Complaints Commission [2023] FedCFamC2G 916.

17. It was against that background of failure to comply with conditions upon her registration and much doomed litigation, that the impugned NCAT decision was made on 17 November 2022 cancelling the plaintiff’s registration for a 3 year period. Ms Clarke filed the application that the HCCC asks the Court by its Notice of Motion to dismiss, in which she seeks judicial review of that decision, on 26 May 2023. She also filed an application for leave to appeal the NCAT decision, and an appeal, to the Court of Appeal. That appeal was heard on 23 November 2023, with the decision of the Court reserved as at the date of the hearing of the HCCC’s Motion before this Court. It is in part by reference to that appeal that the HCCC contends these proceedings should be dismissed as an abuse of process, in that they substantially reagitate the questions upon which, at the date of hearing, the Court of Appeal was reserved. The other basis advanced by the HCCC as warranting the dismissal of Ms Clarke’s Summons pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) is that the claim is frivolous and vexatious, and discloses no reasonable cause of action.

18. Following the date of the hearing, whilst this Court was reserved, the Court of Appeal made orders and published its reasons with respect to the plaintiff’s appeal: Sharmain Daisy Clarke v Health Care Complaints Commission (No 2) [2024] NSWCA 15 (“the appeal decision”). An earlier application made by Ms Clarke for a member of the bench to recuse himself and for an adjournment was refused: Sharmain Daisy Clarke v Health Care Complaints Commission (Recusal Application) [2024] NSWCA 16. The appeal and application were both dismissed, with costs, by the Court of Appeal.

The Tribunal Proceedings

19. The proceedings before NCAT were commenced by the HCCC, seeking disciplinary findings and orders with respect to the plaintiff, on the basis that she had an impairment pursuant to s 144(d) of the National Law, and lacked sufficient capacity to practice as a nurse, as envisaged by s 139(a) of the National Law.

20. It is not necessary for the purposes of determining the HCCC’s Motion to consider the evidence before NCAT, or the reasons given by it for the orders that were made. Suffice to say that NCAT concluded that Ms Clarke suffered from a bi-polar disorder, with psychotic and paranoid personality features, and was not competent to practice as a nurse by virtue of that impairment to her mental health.

The Court of Appeal Proceedings

21. Although the plaintiff’s application and appeal had not been determined by the Court of Appeal when this matter was before me for hearing, orders have now been made by the Court, dismissing both proceedings, with costs.

22. Ms Clarke did not attend the hearing before the Court of Appeal. She sent an email raising various matters including an application for an adjournment. The adjournment application was refused and the hearing proceeded in her absence.

23. Although the Court of Appeal found it difficult to identify the grounds or proposed grounds of appeal, it was concluded that, by her summons and written submissions, Ms Clarke raised the following complaints for consideration before the Court of Appeal:

1. the proceedings before NCAT were vexatious and should have been summarily dismissed;

2. the proceedings were vitiated by harassment, intimidatory behaviour, dishonesty, and impropriety on the part of the regulatory authorities (the NMC and the HCCC);

3. Ms Clarke was denied procedural fairness before NCAT;

4. the medical evidence received by NCAT and relied upon it to make the relevant orders was inadmissible;

5. the orders of the Tribunal were ultra vires in that there was no power to cancel her registration for a period of 3 years without provision for review, and no power to prevent her from providing health services;

6. there was irregularity in the filing of relevant documentation by the HCCC;

7. the complaint made by the NMC was made for an improper purpose, that being to frustrate financial claims Ms Clarke had against it;

8. there was no current evidence that Ms Clarke ever suffered or was suffering any mental incapacity and the medical reports relied upon by the HCCC or by the NMC contained inaccurate and false information on this subject;

9. Ms Clarke was not examined by the HCCC and the NMC did not provide its complaint to her prior to making the complaint to the HCCC, denying her the opportunity to respond;

10. she was not obliged by the National Law to attend upon any doctor engaged by the HCCC, and, in any event, correspondence from the HCCC was coercive, oppressive and harassing and any health assessment conducted for the HCCC would have been false and illegal and not independent;

11. the assessments conducted by Dr Samuels were unreliable and there was no basis for her to have taken the medication (Seroquel) prescribed to her by another doctor, Dr Toohey; and

12. NCAT made errors of fact.

24. Each of these complaints was considered by the Court of Appeal and rejected as without foundation.

The Plaintiff’s Claim to this Court

25. Although the Summons filed by the plaintiff on 26 May 2023 is described on its face as “Judicial Review Proceedings” the orders sought only tangentially bear that character. Ms Clarke asks the Court to make the following orders:

“1. The plaintiff requests the order under Sec 65 (1) or otherwise, sec 69 (1) (a) and (e) of the Supreme Court Act 1970 for the First Defendant be prohibited:

(1) in making false allegations of psychiatric ill health allegedly affecting the plaintiff;

(2) in making false allegations the plaintiff is not competent to practise the profession of Nursing;

(3) in harassing the plaintiff to attend health assessments in contrary to Sec 145E whereby, there is no jurisdiction under the National Law that gives the First Defendant any provision to request the plaintiff attend a health assessment.

(4)   The Plaintiff requests the Court orders the First Defendant refrain and be prohibited from making any vexatious applications against the plaintiff.

2. The plaintiff requests the order the First Defendant's application made in the jurisdiction of the Second Defendant be revoked, this includes the entire judgement and the exercise of the judgement used to undermine the plaintiff's professional credibility and identity.

3. The First Defendant be prohibited in using false and inaccurate materials to support any of its applications before any court in the State of New South Wales against the plaintiff.

4. The plaintiff requests the following orders against the Second Defendant Sec 69 (3) (a) (b), (4) and (5) of the Supreme Court Act 1970 relevant to the judgement Health Complaints Commission v Clarke [2022] NSWCATOD 146.

5. An order requested by the plaintiff for the First and Second Defendant be referred to the appropriate court for Civil Penalty Provisions and Trade Practices to be affected from false and misleading information made against the plaintiff.

6. The Plaintiff requests an order under the Supreme Court Act 1970 sec 65 (1) and or otherwise Sec 69 (3) (a) to allow the plaintiff to renew her nursing registration whilst the judicial review is underway.

7. An order, if this Hono rable court allows for AHPRA (Australian Health Practitioners Regulations Authority) to respond to this application relevant to the summonses served as noted under Annexure "B" and potential breaches exercised under the National Law (Health Practitioners Regulation National Law 86a) Division 9 Renewal of registration Sec 110, 111,112, 107,108, 81, 82, 83, and 84.

8. The plaintiff requests an order for costs to remain in cause until the Hearing of this application is finalised”.

26. In seeking these orders, the plaintiff advances 4, rather imprecise, grounds as follows:

“1. There was no evidence to have reached the decision made on 17 November 2022.

2. Error in the application of the Evidence Act 1995 as outlined in the plaintiff’s summary of argument, extended to prejudice, false and misleading information. ^[4]

3. Error in the application of the Health Practitioners Regulation National Law Sec 150(2), sec 150, sec 145, sec 150D, Sec 150F and further multiple breaches

4. Error in the application of the HCCA1993 Under Prohibition orders sought, and further Sec 99, Sec 92, and as outlined in the Summary of Argument”.

4. The final few words were added by hand to the original document and are difficult to decipher; this appears to be the correct interpretation of the addition.

27. Ms Clarke relies upon a Summary of Argument filed on 26 May 2023. In legal terms it is an unconventional document that is somewhat difficult to understand. It is prolix and discursive, mingling legal terminology, generally inaptly applied, with what impress as persecutory delusions. The disordered nature of the document can be seen from a few short extracts:

“The nature of the plaintiff's case is relied upon elements of unfair prejudice in the highest, error in the application of the law, attempt to pervert the course of justice, by denying the plaintiff any employment and earnings in the health industry within her areas of expertise, sec 97 Tendency Rule, 96 Failure to Act & 95 Use of Evidence for other purposes relevant to the First and Second Defendants in question under Evidence Act 1995.

…

Unfair prejudice explicitly is actioned in the handing down of the judgement on 17.11.22, informing in favour of the preconceived, misconceived, and inappropriate psychiatric clinical diagnoses expressed by the First Defendant, whereby, a sustained illegality is canvassed in the judgement made by the Second Defendant, under the Exception as to when the opinion rule does not apply.

….

The arguments progress to an error in the application of the National Law and the application of the HCCA 1993, whereby the application made by the First Defendant in response to Sec 149C Tribunal may suspend or cancel registration in in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioners registration if the Tribunal is satisfied (a) the practitioner is not competent to practise the practitioners profession;

…

Sustained prejudice is gaping in the finding relevant to a statement The practitioner exhibits a lack of insight in relation to her impairment, in that she (a) 'denies she suffers from a mental illness' the finding does not exhibit any evidence subject to the REPLY made on 3 March 2022, given the fact the Second Defendant was informed as to the 'defect' amendment that took place on 4.5.22 and a further amendment took effect on 17.6.22; hence the plaintiff suffered prejudice in the highest from irregular case managements actioned by the Second Defendant, the finding is irregular and fails to support any particulars relevant to the statement made, notwithstanding, the plaintiff's Reply- superseded any of the amendments that was made, hence the irregularities was noted by way of arguments, and the presiding officer for the Second Defendant denied any action in the favour of the plaintiff, furthermore the finding is false and inconsistent otherwise with facts from a chronology of sequences of the applications made by the plaintiff prior to the decision handed down on 17.11.22”.

28. Much of the Summary of Argument focuses on the plaintiff’s assertion that any medical opinion expressed in evidence before NCAT to the effect that she suffered from a mental health impairment should not have been admitted, and was false, misleading, and prejudicial. By way of summary, and doing the best I can, I understand the plaintiff’s concerns as distilled from her Summary of Argument to relate to the following matters:

1. The HCCC engaged in prejudicial and illegal conduct to prevent Ms Clarke from practicing her profession, denying her natural justice;

2. The evidence before NCAT was inadmissible and there was no admissible evidence to establish that the plaintiff had an impairment to her mental health;

3. NCAT had no power to cancel Ms Clarke’s registration for a three year period without specifying a review, and no power to prohibit her from providing health services;

4. There were errors of law in the decision of NCAT in its application of the National Law and the Health Care Complaints Act 1993 (NSW);

5. The decision of NCAT reflects errors of fact;

6. Submissions and a chronology placed before NCAT by the HCCC were inaccurate and misleading; and

7. The decision made by NCAT reflects its bias against Ms Clarke.

The Application of the HCCC

29. The HCCC contends that Ms Clarke’s claim to this Court substantially replicates the matters raised before the Court of Appeal in proceedings 2022/356036 and 2023/40167. In particular, the claim raises assertions of errors of law, errors of fact, error in the orders made by NCAT, and failure to afford natural justice. The HCCC submits that reagitating the same issues or seeking the same relief in two forums is an abuse of process.

30. Further, it is argued that the plaintiff’s claim has no prospects of success. Her assertion as to the absence of any admissible evidence as to an impairment suffered by her is devoid of merit, and plainly false.

The plaintiff submits that the nature of her claim is different to that advanced before the Court of Appeal, and it would occasion injustice to her to prevent her from proceeding with it. She appeared to argue in oral submissions that the proceedings before the Court of Appeal were, in any event, null, because of her absence from the hearing. To that end she argued:

“The argument here is that there was no hearing on 23 November [2023] in the Court of Appeals, I was not present. And, there was - there won’t be a judgment brought down […] that’s the basic point.” (T9:25; 31 January 2024)

31. Ms Clarke detailed what she said was malfeasance in the proceedings before NCAT at some length, and in a manner that was not always easy to follow, but my understanding of her submission on the question of summary dismissal was that her appeal to the Court of Appeal raised different questions to those raised before this Court; that the Court of Appeal could not deliver a judgment in any event as she did not attend the hearing before the court; and that she had been subjected to unconscionable conduct that had unjustly deprived her of her capacity to earn an income, and the Court could not justly stop her from pursuing her claim.

Determination

32. There is no doubt that Ms Clarke’s present claim to the Court substantially reproduces the arguments and claims she has made before the Court of Appeal. The issues are almost identical, as a comparison between the list of issues raised in the two proceedings, summarised above, demonstrates. Each of these matters have been determined by the Court of Appeal in its judgment of 7 February 2024. To permit Ms Clarke’s claim to proceed would be to permit an abuse of process by the re-agitation of substantially the same claim.

33. Rule 13.4 of the UCPR provides for the dismissal of proceedings without full hearing in certain circumstances:

13.4   Frivolous and vexatious proceedings

(1)  If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a)  the proceedings are frivolous or vexatious, or

(b)  no reasonable cause of action is disclosed, or

(c)  the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2)  The court may receive evidence on the hearing of an application for an order under subrule (1).

34. The consequences of that power being exercised is to deny the litigant the determination of his or her claim without the benefit of a full hearing of the issues before a court, and as such, it is to be used only with considerable care. In Agar v Hyde (2000) 201 CLR 552, the High Court said, at [57]:

“It is, of course, well accepted that a court […] should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”. (Footnote omitted)

35. The point is one of long standing. Dixon J, in Dey v Victorian Railways Commissioners (1949) 78 CLR 62, referring to a 1908 decision of the High Court observed, at 91:

“In Burton v. Shire of Bairnsdale, O'Connor J. said: “Prima facie every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals and the inherent jurisdiction of the court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed”. (Footnote omitted)

36. Bearing firmly in mind the significance of exercising the power to prevent a litigant from the determination of his or her claim, Ms Clarke’s claim is one that she has already made by her appeal and application to the Court of Appeal, as the judgment of the court clearly demonstrates. The court was asked to consider precisely the same issues as are advanced in these proceedings, and determined each matter, adversely to Ms Clarke. To permit her to re-litigate substantially the same issues would be to allow the Court’s processes to be abused, and to submit the defendant to that same impropriety.

37. It is clear from the material before the Court that Ms Clarke has become fixated upon the legal process as a means of redressing what she believes to be a significant injustice. The many rejections there have now been of her complaints concerning the cancellation of her registration to practice as a nurse and associated claims have left her undeterred, and she continues to endeavour to resort to the courts to argue what is essentially the same case, again and again. Her inability to accept the judgments of multiple courts, and her determined pursuit of her complaints regardless of those many judgments is, of itself, some confirmation of the opinions of Dr Samuels and others that so outrages Ms Clarke, as to her mental illness.

38. I do not doubt that her beliefs that she has been unjustly treated by the regulatory authorities, NCAT and the legal system, are genuinely held, but they appear to be beliefs formed and maintained when in the grip of mental illness. These many legal claims appear to have become a manifestation of that illness. The present claim cannot be allowed to proceed in circumstances where the Court of Appeal has already determined its substance.

39. Although the HCCC also argued that the plaintiff’s claim has no prospect of succeeding, it is not necessary to determine that contention (although I observe in passing that that is my strong impression). The claim should be dismissed as an abuse of process.

Orders

40. For those reasons, the Court makes the following orders:

1. Pursuant to r 13.4(1)(c) of the Uniform Civil Procedure Rule 2005, proceedings bearing the case number 2023/168284 are dismissed with costs.

**********

APPENDIX A – CHRONOLOGY

Date	Event	Citation
27 February 2003	Applicant first registers as a nurse in Australia.
2003 – 2008	Applicant is employed by Prince of Wales Hospital as a peri-operative nurse.
2008	Applicant is dismissed from employment after a dispute with other staff.
2008	The Nurses Association brings unfair dismissal proceedings under s 84 Industrial Relations Act for unfair dismissal on behalf of the Applicant.	Sharmain Naicker and NSW Health Service – Government of New South Wales for South Eastern Sydney Illawara Area Health Service [2008] NSWIRComm 1104
2008	Decision of the Industrial Relations Commission is made and application for unfair dismissal is dismissed.
2011 – 2015	Applicant is employed by the Royal Hospital for Women in Randwick.
2014	The Nurses Association initiated a dispute under the Industrial Relations Act in relation to a performance appraisal and bullying. These proceedings are discontinued.
May 2015	Applicant’s employment at the Royal Hospital for Women is terminated.
May 2015	The Nurses Association brings unfair dismissal proceedings under s 84 Industrial Relations Act for unfair dismissal on behalf of the Applicant. These proceedings are discontinued.
September 2015	The Nursing and Midwifery Council (the “NMC”) commences proceedings against the applicant under s 150 of the National Law in response to a complaint by the South-Eastern Sydney Local Health District.
November 2015	The NMC delivers its reasons for its decision. Several conditions were imposed on the applicant’s registration, including supervision, providing notice of conditions to current and future employers, notification to the NMC and completion of a performance assessment. In December 2015, the Applicant attends a performance assessment but withdrew part way through the assessment.
8 June 2016	The Applicant commences proceedings in the Fair Work Commission about the termination of her employment with the Royal Hospital for Women. The Applicant filed out of time ad sought an extension of time.
2 September 2016	The Fair Work Commission refuses the applicant’s application for an extension of time.	Naicker v South Eastern Sydney Local Health District t/as Royal Hospital for Women [2016] FWC 5697
23 March 2017	NCAT refuses an application made by the Applicant which sought leave to proceed with a disability discrimination complaint.	Clarke v South Eastern Sydney Local Health District [2017] NSWCATAD 81
13 July 2017	The NMC conducts s 160C proceedings following the Applicant’s failure to attend a health assessment, as referred by the NMC on 27 January 2017 and as scheduled on 2 and 9 March 2017. The NMC imposes new conditions on the Applicant’s registration, including that she not work as a nurse and that she attend a health assessment.
2 November 2017	The Applicant initiated defamation proceedings in the District Court. On this date, the court made orders dismissing the Applicant’s application to amend an Amended Statement of Claim and other procedural matters.	Clarke (previously Naicker) v Nerrick [2017] NSWDC 302
15 November 2017	The Applicant filed an appeal with NCAT against the s 150C decision of 13 July 2017. On 15 November 2017, this appeal is dismissed by NCAT.	Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163
6 February 2018	The Applicant initiated proceedings in the Supreme Court and the case was summarily dismissed on the basis of no reasonable cause of action having been made out.	Clarke v South East Sydney Local Health District [2018] NSWSC 66
21 March 2018	The Supreme Court made a costs order against the Applicant.	Clarke v South East Sydney Local Health District (No 2) [2018] NSWSC 357
12 October 2018	The Applicant appealed the 6 February 2018 decision to the Court of Appeal. Leave to appeal is granted on the ground of procedural fairness.	Sharmain Daisy Clarke v South East Sydney Health District (No 2) [2018] NSWCA 226
15 November 2018	District Court grants the Applicant leave to amend her claim against the NMC in relation to damages for alleged defamation, professional negligence and malice.	Clarke v Nursing and Midwifery Council of New South Wales [2018] NSWDC 337
15 November 2018	The Applicant had brought a claim in the District Court for damages in relation to allegations of slander by Ms Fenn (acting Director of Nursing at the Royal Hospital for Women). The proceedings are struck out and dismissed. A costs order against the Applicant was subsequently made on 20 December 2018.	Clarke v Fenn [2018] NSWDC 336
23 July 2019	The Applicant brought proceedings in the Federal Circuit Court for aggravated and exemplary damages against the NMC for breach of duty of care and professional negligence, and against the Board for fraudulent and misleading conduct, and against a solicitor. The proceedings are all dismissed for no reasonable prospects of success and the proceedings were considered frivolous, vexatious and an abuse of the Court’s process.	Clarke v Nursing and Midwifery Council of New South Wales & Ors [2019] FCCA 2127
15 August 2019	The Applicant brought proceedings in the District Court against the NMC. The NMC successfully applies for the Applicant’s filed pleading headed “the plaintiff’s reply” to be struck out. The Applicant is ordered to pay the NMC costs of the application.	Clarke v Nursing and Midwifery Council of New South Wales (No 2) [2019] NSWDC 531
21 August 2019	Remitted proceedings reheard and proceedings again summarily dismissed as no reasonable cause of action had been made out.	Clarke v South Eastern Sydney Local Health District (No 3) [2019] NSWSC 1075
12 September 2019	Applicant made an application in District Court proceedings for the NMC’s solicitors to cease acting. Application refused.	Clarke v Nursing and Midwifery Council of New South Wales (No 3) [2019] NSWDC 532
12 September 2019	Defamation proceedings brought by the Applicant in the District Court against Ms Herrick and the South-Eastern Sydney Local Health District are struck out and dismissed with an order for costs.	Clarke v Herrick [2019] NSWDC 533
23 July 2019	Proceedings in the FCCA against the Association were dismissed and costs were ordered in favour of each of the respondents.	Clarke v Nursing and Midwifery Council of New South Wales & Ors (No 2) [2019] FCCA 3035
25 October 2019	FCA dismissed application made by Applicant to reopen FCA proceedings.	Clarke v Nursing and Midwifery Council of New South Wales & Ors (No 3) [2019] FCCA 3159
1 November 2019	FCA proceedings relating to three claims for discrimination (race and disability). Leave to commence proceedings is refused and all proceedings were refused. Leave to appeal this decision was later refused on 6 November 2020.	Clarke v Nursing and Midwifery Council New South Wales [2019] FCA 1782
13 November 2019	District Court struck out Applicant’s amended reply.	Clarke and Midwifery Council New South Wales (No 4) [2019] NSWDC 659
27 November 2019	Costs order made in favour of third respondent.	Clarke v Nursing and Midwifery Council of New South Wales & Ors (No 4) [2019] FCCA 3159
28 November 2019 – 16 December 2019	Applicant admitted to Royal North Shore Hospital as an involuntary patient after presenting to Emergency for a separate issue.
20 December 2019	Judgment given in relation to proceedings in FCCA against a number of hospital employees for bullying, harassment, victimisation and fraudulent conduct. These proceedings were dismissed on 29 November 2019 whilst the Applicant was admitted to hospital, and her application to reinstate these proceedings was dismissed.	Clarke v South Eastern Sydney Local Health District & Ors [2019] FCCA 3769
11 February 2020	Court of Appeal dismisses Applicant’s application for leave to appeal Supreme Court decision from 21 August 2019.	Clarke v South Eastern Sydney Local Health District [2020] NSWCA 8
21 April 2020	Application in Court of Appeal for leave to appeal from District Court proceedings dismissed on the basis that the Applicant had not demonstrated an arguable error or any procedural unfairness.	Clarke v Herrick [2020] NSWCA 71
2 June 2020	NCAT summarily dismissed the applicant’s application on the basis that the proceedings were misconceived.	Clarke v Midwifery Council of New South Wales [2020] NSWCATOD 58
12 June 2020	Application for special leave refused by the High Court (application was to appeal Court of Appeal dismissal dated 11 February 2020 of the applicant’s application for special leave to appeal a SC matter).	Clarke v South Eastern Sydney Local Health District [2020] HCASL 135
28 August 2020	Supreme Court refused the applicant’s application for further referral for pro bono legal assistance.	South Eastern Sydney Local Health District v Clarke [2020] NSWSC 1155
8 October 2020	Two judgments of the District Court (unreported) dismiss the applicant’s claims.	Clarke v Dale, Clarke v Herrick
23 October 2020	District Court dismisses claim for damages for alleged defamation, professional negligence and malice.	Clarke v Nursing and Midwifery Council of New South Wales [2020] NSWDC 641
6 November 2020	Federal Court refuses the Applicant leave to appeal from Clarke v Nursing and Midwifery Council New South Wales [2019] FCA 1782.	Clarke v South Eastern Sydney Local Health District [2020] FCA 1616
6 November 2020	Federal Court refuses the Applicant leave to appeal from four decisions of Judge Dowdy (dates – 23 July 2019, 18 October 2019, 28 October 2019 and 27 November 2019).	Clarke v Nursing and Midwifery Council of New South Wales [2020] FCA 1617
25 March 2021	Applicant challenged conditions imposed by the NMC at NCAT. NCAT confirms the condition that prevented the Applicant from working as a nurse. NCAT allowed extension of time to lodge an appeal.	Clarke v Nursing and Midwifery Council of New South Wales [2021] NSWCATOD 32
9 February 2021	Supreme Court declares that the Applicant was a frivolous and vexatious litigant. Orders made prohibiting the Applicant from instituting proceedings in NSW against the South Eastern Local Health District, the NMC and the Health Professional Councils Authority, or on the subject matter of previous proceedings in NCAT, Local, District, Supreme, Federal Circuit and Federal Courts.	South Eastern Sydney Local Health District v Clarke [2021] NSWSC 63
26 March 2021	District Court finds that the Applicant’s pleadings in relation to damages for medical negligence disclosed no reasonable cause of action and the statement of claim was dismissed.	Clarke v Adams [2021] NSWDC 256
24 May 2021	Court of Appeal finds that the Applicant’s applications for leave to appeal from two decisions of 8 October 2020 contained no arguable basis for establishing error of the primary judge. Application for leave dismissed with costs.	Clarke v Herrick [2021] NSWCA 102
17 December 2021	Applicant sought to reagitate proceedings that were stayed by the Supreme Court on 9 February 2021. Leave to commence proceedings is refused and the summons is dismissed.	Clarke v Adams [2021] NSWSC 1665
14 January 2022	Supreme Court refuses the Applicant leave to institute proceedings against the NMC on the basis of non-compliance with the Vexatious Proceedings Act 2008.	Clarke v Nursing and Midwifery Council of New South Wales [2022] NSWSC 15
30 March 2022	Supreme Court refuses leave for the Applicant to commence proceedings and dismisses the summons. The Court is satisfied that the proposed proceedings were vexatious.	Clarke v New South Wales Nurses and Midwives Association (The Union) [2022] NSWSC 349
20 April 2022	Supreme Court refuses leave for the Applicant to institute proceedings against the respondent to traverse issues affected by vexatious litigant orders dated 9 February 2021.	Clarke v Health Care Complaints Commission [2022] NSWSC 495
23 April 2022	Applicant filed a complaint against the HCCC with the Australian Human Rights Commission (AHRC). On 19 October 2022, the AHRC terminates the Applicant’s complaint without enquiry.
17 November 2022	Following an application by the HCCC in relation to the Applicant’s impairment and competence, NCAT cancels the Applicant’s registration with a non-review period of three years, prohibits her from providing health services for the same period and orders costs against the Applicant.	Health Care Complaints Commission v Clarke [2022] NSWCATOD 146
12 January 2023	The Applicant files a summons in the Supreme Court seeking leave to appeal the NCAT decision.
26 May 2023	The Applicant files a summons in the Supreme Court seeking judicial review of the NCAT decision. The matter was heard by Justice Wilson on 31 January 2024.
11 October 2023	Federal Circuit Court proceedings were instituted by the Applicant on 31 January 2023, and the respondent sought vexatious proceedings orders. On 11 October 2023, the FCC dismisses the Applicant’s proceedings, prohibits the Applicant from instituting proceedings against or relating to the HCCC, and orders the Applicant to pay the respondent’s costs.	Clarke v Health Care Complaints Commission [2023] FedCFamC2G 916
10 November 2023	The Applicant lodged an application in the FCA for extension of time and leave to appeal the decision made by the FCC on 11 October 2023. These proceedings have not yet been listed for a first directions hearing.
23 November 2023	The Court of Appeal (White JA, Mitchelmore JA and Kirk JA) heard the applicant on her appeal from the NCAT orders that her registration as a nurse be cancelled. On 7 February 2024, the Court of Appeal dismisses the applicant’s appeal, and summons to appeal, with costs.	Sharmain Daisy Clarke v Health Care Complaints Commission (No 2) [2024] NSWCA 15
7 February 2024	Upon ascertaining the identity of the members sitting on the Court of Appeal, the Applicant sent an email to the Registrar essentially requesting the recusal of White JA. On 7 February 2024, the Court of Appeal dismisses the applicant’s request for recusal.	Sharmain Daisy Clarke v Health Care Complaints Commission (Recusal Application) [2024] NSWCA 16

Endnotes

Decision last updated: 27 February 2024