Clarke v Nursing and Midwifery Council of New South Wales
[2019] FCCA 2127
•23 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLARKE v NURSING AND MIDWIFERY COUNCIL OF NEW SOUTH WALES & ORS | [2019] FCCA 2127 |
| Catchwords: CONSUMER LAW – Amended Application for aggravated and exemplary damages for, inter alia, alleged breaches of duty of care, professional negligence and fraudulent, misleading and dishonest conduct of the Respondents – Applications in a Case for the summary dismissal of the Amended Application filed by First, Second and Fourth Respondents under s.17A of the Federal Circuit Court Act 1999 (Cth) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth) – Applicant has no reasonable prospects of successfully prosecuting the proceeding against them and the proceeding is otherwise frivolous, vexatious and an abuse of the process of the Court – no leave to replead sought or granted – Amended Application summarily dismissed as against First, Second and Fourth Respondents. |
| Legislation: Competition and Consumer Act 2010 (Cth) Federal Circuit Court Act 1999 (Cth), s.17A Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Agar v Hyde (2000) 201 CLR 552 |
| Applicant: | SHARMAIN DAISY CLARKE |
| First Respondent: | NURSING AND MIDWIFERY COUNCIL OF NEW SOUTH WALES |
| Second Respondent: | NURSING AND MIDWIFERY BOARD OF AUSTRALIA |
| Third Respondent: | NEW SOUTH WALES NURSES AND MIDWIVES’ ASSOCIATION |
| Fourth Respondent: | VIOLET STOJKOVA |
| File Number: | SYG 3310 of 2018 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 23 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 23 July 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First and Fourth Respondents: | Mr S. Kettle of Counsel |
| Solicitors for the First and Fourth Respondents: | Hicksons Lawyers |
| Counsel for the Second Respondent: | Ms S. Burnett |
| Solicitors for the Second Respondent: | Clayton Utz |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
Evidence in relation to the First and Fourth Respondents’ Application in a Case filed on 27 March 2019 also be evidence in relation to the Second Respondent’s Application in a Case filed on 4 February 2019.
Leave be granted to the Second Respondent to amend its Application in a Case filed on 4 February 2019 to substitute a reference in paragraphs 1 and 2 thereof to the Amended Application / Points of Claim filed on 8 March 2019.
The proceeding as against the First, Second and Fourth Respondents be dismissed pursuant to Rule 13.10 of the Federal Circuit Court Rules 2001 (Cth) because the Court is satisfied that the Applicant has no reasonable prospects of successfully prosecuting the proceeding, and the proceeding is otherwise frivolous, vexatious and an abuse of the process of the Court.
The application by the First, Second and Fourth Respondents for costs be reserved.
Pursuant to Rule 35.13(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 16 August 2019 to apply for leave to appeal to the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3310 of 2018
| SHARMAIN DAISY CLARKE |
Applicant
And
| NURSING AND MIDWIFERY COUNCIL OF NEW SOUTH WALES |
First Respondent
NURSING AND MIDWIFERY BOARD OF AUSTRALIA
Second Respondent
NEW SOUTH WALES NURSES AND MIDWIVES’ ASSOCIATION
Third Respondent
VIOLET STOJKOVA
Fourth Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
This proceeding commenced by Application filed on 28 November 2018. On 15 February 2019 an order was made permitting the Applicant to file an Amended Application, which she did on 8 March 2019 (Points of Claim).
To the Application which had been filed on 28 November 2018 all Respondents had filed Responses contending that the Application was not amenable to a response and seeking summary dismissal under r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (Rules).
By Application in a Case filed on 27 March 2019, the First and Fourth Respondents seek dismissal of the Points of Claim. By Application in a Case filed on 4 February 2019 the Second Respondent also seeks dismissal of the Points of Claim.
Purpose of Pleadings
The purpose of pleadings was stated by Mason CJ and Gaudron J in Banque Commerciale SA v Akhil Holdings Limited (1990) 169 CLR 279 at 286, where their Honours said:
The function of pleadings is to state with sufficient clarity the case that must be met: Gould & Birbeck & Bacon v Mount Oxide Mines Ltd (1916) 22 CLR 490 at 517, per Isaacs and Rich JJ. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision.
In Gould & Birbeck & Bacon v Mount Oxide Mines Limited (1916) 22 CLR 490 at 517, Isaacs and Rich JJ had said:
Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function.
I note that the Applicant is a litigant in person and has drafted the Points of Claim without the benefit of a lawyer and so in the normal case a degree of latitude is extended by a Court.
Background
The claims against the Respondents who are pursuing the Applications in a Case are:
a)as to the First Respondent, a claim of breach of duty of care from professional negligence causing harm and loss for which the Applicant claims that she is entitled to aggravated and exemplary damages;
b)as to the Second Respondent, a claim of fraudulent and misleading conduct for which the Applicant seeks aggravated and exemplary damages; and
c)as to the Fourth Respondent, a claim that she, as the principal solicitor at Hicksons Lawyers acting for the South Eastern Sydney Local Heath District (SESLHD) in legal proceedings commenced by the Applicant, “intentionally and knowingly repeated dishonest conduct to the Supreme and District Courts” for which the Applicant seeks aggravated and exemplary damages.
The Applicant was a registered nurse who worked for the SESLHD from October 2011. Concerns were raised about the Applicant’s competence, which resulted in her suspension and subsequent dismissal on 5 May 2015. On 26 May 2015 she filed an application for unfair dismissal in the NSW Industrial Relations Commission (IRC).
She attended a conciliation of the dispute on 7 July 2015, at the conclusion of which her legal representative informed the IRC that the matter had been finally resolved and that a Deed would be prepared to reflect that settlement.
The Applicant refused to execute the Deed and the Third Respondent, which had appeared on her behalf in the IRC, refused to act for her thereafter. No further steps have been taken by the Applicant in that proceeding.
On 21 September 2015 the First Respondent imposed conditions on the Applicant’s registration as a nurse pursuant to s.150 [Suspension or conditions of registration to protect public] of the Health Practitioner Regulation National Law (NSW) No. 86a (the Law). The First Respondent was established pursuant to s.41B of the Law. The Law established a national registration and accreditation scheme for the regulation of health practitioners with the objectives of the scheme to include provision for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered, with the guiding principles of the scheme to include restrictions on the practice of the health profession to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality: see s.3 [Objectives and guiding principles] of the Law.
In the exercise of functions under the Law, the protection of the health and safety of the public must be of paramount consideration: see s.3A [Objective and guiding principle] of the Law.
In respect of a complaint, the First Respondent may determine that no further action should be taken in respect of the complaint: see s.145B [Courses of action available to Council on complaint] of the Law.
A person may appeal to the NSW Civil and Administrative Tribunal against any decision of the First Respondent for suspension of the person's registration or conditions imposed on the person’s registration by the First Respondent: see s.159 [Right of appeal] of the Law.
The First Respondent must, as soon as practicable after it makes a decision with respect to a registered health practitioner, give written notice of the decision to each employer of the practitioner: see s.l76BA [Council to notify employers] of the Law.
Publication in good faith of a written statement of a decision made by the First Respondent does not subject it to any liability: see s.176E [Protection from liability for certain publications] of the Law.
Section 225 of the Law required that the National Register contain certain information for each registered health practitioner therein named and s.225(k) required inclusion of any condition imposed on the practitioner’s registration.
The Second Respondent is a National Health Practitioner Board established for nursing and midwifery under s.31 of the Law. Its functions are provided for under s.35 of the Law and under s.222(5) it was required to keep the National Register for nurses and midwives.
On 22 September 2015 the Second Respondent received an email from the First Respondent advising that pursuant to s.150 of the Law the First Respondent had imposed conditions on the Applicant’s registration relating to her practising as a registered nurse, with those conditions to take effect from 21 September 2015, and that they should be recorded on the National Register maintained by the Second Respondent in respect of registered nurses, being a public national register under s.222 of the Law. On 23 September 2015, the Second Respondent recorded and published the conditions imposed on the Applicant’s registration on the National Register.
The Fourth Respondent is a solicitor in the employ of Hicksons Lawyers and has had the conduct for the First Respondent of proceedings brought by the Applicant in multiple jurisdictions.
The affidavits of Ms Ashleigh Clancy and Mr Kyle Robson set out in greater detail the statutory provisions and facts relevant to the present proceeding and those affidavits have been read without objection.
Consideration
I have come to the clear view that the Points of Claim as against the First, Second and Fourth Respondents, should be struck out. The Points of Claim are incoherent, do not properly and meaningfully plead the material facts relied upon and do not properly and meaningfully set out any legal claims cognisable by the law. They are embarrassing in the technical sense.
I agree with Mr Kettle of Counsel, who appeared at the hearing on behalf of the First and Fourth Respondents that the only material facts coherently and meaningfully pleaded against the First Respondent in the Points of Claim are:
a)the Applicant is a natural person and has the ability to sue and can be sued (see paragraph 1);
b)the First Respondent is regulated under the Law (see paragraph 2);
c)the Applicant is a practitioner and the First Respondent a co-regulatory body (see paragraph 3); and
as against the Fourth Respondent:
d)the Applicant is a natural person and has the ability to sue and can be sued (see paragraph 75);
e)the Fourth Respondent is a principal solicitor managing the day to day conduct of the proceedings the Applicant commenced against the SESLHD and its employees in other proceedings before other Courts (see paragraph 76);
f)the Applicant paid a solicitor in November and December of 2017 to appear on 31 January 2018 before a hearing at the Supreme Court (see paragraph 80); and
g)on or about prior to 13 July 2018 the Fourth Respondent was reported to the Office of Legal Services Commissioner (see paragraph 83).
It would be wrong, in my view, to require the First, Second and Fourth Respondents to plead to the Points of Claim. They are argumentative, conclusionary and, as I have said, do not properly and coherently plead material facts. It is not the role or obligation of the Respondents to disentangle the Points of Claim and to divine and spell out the claim which is intended to be made against them. Further and in particular with respect to the claim of fraud against the Second Respondent, the Points of Claim do not comply with the principles relating to the pleading of a claim in fraud, which are conveniently set out and summarised by Lord Millett in Three Rivers District Council v Bank of England(No.3) [2003] 2 AC 1, where at 291 – 292 [183] – [186] he said as follows:
[183] Having read and re-read the pleadings, I remain of opinion that they are demurrable and could be struck out on this ground. The rules which govern both pleading and proving a case of fraud are very strict. In Jonesco v Beard [1930] AC 298 Lord Buckmaster, with whom the other members of the House concurred, said, at p 300:
“It has long been the settled practice of the court that the proper method of impeaching a completed judgment on the ground of fraud is by action in which, as in any other action based on fraud, the particulars of the fraud must be exactly given and the allegation established by the strict proof such a charge requires”.
[184] It is well established that fraud or dishonesty (and the same must go for the present tort) must be distinctly alleged and as distinctly proved; that it must be sufficiently particularised; and that it is not sufficiently particularised if the facts pleaded are consistent with innocence: see Kerr on Fraud and Mistake, 7th ed (1952), p 644; Davy v Garrett (1878) 7 Ch D 473, 489; Bullivant v Attorney General for Victoria [1901] AC 196; Armitage v Nurse [1998] Ch 241, 256. This means that a plaintiff who alleges dishonesty must plead the facts, matters and circumstances relied on to show that the defendant was dishonest and not merely negligent, and that facts, matters and circumstances which are consistent with negligence do not do so.
[185] It is important to appreciate that there are two principles in play. The first is a matter of pleading. The function of pleadings is to give the party opposite sufficient notice of the case which is being made against him. If the pleader means “dishonestly” or “fraudulently”, it may not be enough to say “wilfully” or “recklessly”. Such language is equivocal. A similar requirement applies, in my opinion, in a case like the present, but the requirement is satisfied by the present pleadings. It is perfectly clear that the depositors are alleging an intentional tort.
[186] The second principle, which is quite distinct, is that an allegation of fraud or dishonesty must be sufficiently particularised, and that particulars of facts which are consistent with honesty are not sufficient. This is only partly a matter of pleading. It is also a matter of substance. As I have said, the defendant is entitled to know the case he has to meet. But since dishonesty is usually a matter of inference from primary facts, this involves knowing not only that he is alleged to have acted dishonestly, but also the primary facts which will be relied upon at trial to justify the inference. At trial the court will not normally allow proof of primary facts which have not been pleaded, and will not do so in a case of fraud. It is not open to the court to infer dishonesty from facts which have not been pleaded, or from facts which have been pleaded but are consistent with honesty. There must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be both pleaded and proved.
The above observations of Lord Millett have been previously cited with approval by Australian Courts: see Flick J in Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 5) [2010] FCA 1204 at [38].
Accordingly, the Points of Claim should be struck out as bad in form as against the First, Second and Fourth Respondents.
Further, in my view the evidence led by the First and Second Respondents clearly establishes that all their actions of which complaint seems to be made by the Applicant merely constituted their carrying out of statutory duties and obligations under statutory procedures that required them to act in the way in which they did. A claim of fraud against the Second Respondent could not succeed. The Second Respondent only carried out a merely ministerial function authorised by the Law. In the whole body of the evidence relied upon by the Applicant there is nothing which would base a cause of action against the Fourth Respondent. Accordingly, the Points of Claim should also be struck out on the basis that there are no reasonable prospects of successfully prosecuting the proceeding against the First, Second and Fourth Respondents.
I am conscious that in considering an application to summarily dismiss a proceeding I ought to exercise extreme caution before I make any such order. In considering whether to summarily dismiss the proceeding and with regard to the degree of caution with which any power of summary dismissal should be exercised, I have regard to the decision of Agar v Hyde (2000) 201 CLR 552, where Gaudron, McHugh, Gummow and Hayne JJ stated as follows at 575-576 [57]:
[57] 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.
To similar effect French CJ and Gummow J said in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at 131 [24]:
[24] The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:
“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.”
Nevertheless, I consider that this is an appropriate case pursuant to r.13.10 of the Rules to exercise the power of the Court to summarily dismiss the proceeding as against the First, Second and Fourth Respondents.
Conclusion
In my view, the proceeding as against the First, Second and Fourth Respondents should be summarily dismissed pursuant to s.17A of the Act and r.13.10 of the Rules because the Court is satisfied that the Applicant has no reasonable prospects of successfully prosecuting the proceeding against them and the proceeding against them is otherwise frivolous, vexatious and an abuse of the process of the Court.
It is often the case that when a pleading is struck out the Court gives leave to replead. However, in this case I decline to give leave to replead. First, I do not consider that the Applicant would be able of herself to produce a proper pleading and there is no suggestion that she intends to retain a lawyer. Second, the Applicant is not able to refer me or point to a skerrick of wrongdoing which would give rise to a cause of action or proper legal complaint against the First, Second or Fourth Respondents.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 2 August 2019
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