Clarke v Nursing and Midwifery Council of New South Wales (No 3)

[2019] NSWDC 532

District Court

New South Wales

Medium Neutral Citation:	Clarke v Nursing and Midwifery Council of New South Wales (No. 3) [2019] NSWDC 532
Hearing dates:	12 September 2019
Date of orders:	12 September 2019
Decision date:	12 September 2019
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiff’s notices of motion filed on 9 September 2019 dismissed. (2) Plaintiff pay defendants’ costs of today.
Catchwords:	PRACTICE AND PROCEDURE – plaintiff’s application for the solicitors for the defendant to cease acting on its behalf in these proceedings – no issue of principle
Cases Cited:	Sangare v Northern Territory [2019] HCA 25
Category:	Procedural and other rulings
Parties:	Plaintiff: Sharmain Daisy Clarke Defendant: Nursing and Midwifery Council of New South Wales
Representation:	Counsel: Plaintiff: In person Defendant: Mr D Sibtain   Solicitors: Plaintiff: In person Defendant: Hicksons Lawyers
File Number(s):	2018/113261
Publication restriction:	None

Judgment

The plaintiff’s notices of motion

1. The plaintiff filed two notices of motion on 9 September 2019. The first sought the following orders:

1. The plaintiff is granted the [sic] order for a stay in the proceedings be upheld [sic] from the negligence claims on foot against the Hicksons solicitors prosecuting the proceedings.

2. An order for all costs to be in the cause.

2. Underneath order 2 the following words are handwritten:

“The order for the Hicksons solicitors recused themselves from these proceedings.”

3. This appears to be, in fact, what is sought.

4. The second notice of motion filed on the same day sought similar orders, but referring in addition to actions commenced in the Federal Circuit Court and to various provisions of the UCPR.

5. I will deal with both those motions as if they consisted of the same prayer for relief, namely an order that these proceedings be stayed on the basis that there is a challenge to the solicitors for the defendant (and in particular to Ms Violet Stojkova) continuing to appear as the representative for the defendant.

6. In support of her application Ms Clarke relies upon an affidavit she swore on 9 September 2019. This was tendered over the objection of Mr Sibtain, on the basis that it was not evidence at all. I have rejected that challenge on the basis that I will regard the contents as if these were submissions, by reason of challenges to the factual evidence set out therein.

Proceedings commenced by the plaintiff in which the solicitors represent a party

7. What does appear clear to me from the plaintiff’s affidavit is that there are a number of proceedings commenced by the plaintiff which are currently before the Courts. I list these as follows:

1. There are proceedings in the Federal Court of Australia which resulted in the judgment Clarke v Nursing and Midwifery Council of New South Wales & Ors (2019/FCC02127). The court dismissed the plaintiff’s application summarily. I understand there is an appeal from this decision which came before Judge Dowdy on 23 July 2019 which has not yet been determined.

2. There are proceedings in the Supreme Court (Clarke v South East Sydney Local Health District (2017/101668)).

3. There are other proceedings in the Federal Court, bearing file numbers NSD166/2019, NSD167/2019, NSD691/2019, which have yet to be dealt with.

4. There are proceedings currently before the NCAT, bearing proceedings number 126124 of 2019.

5. There are proceedings in this Court. I note in particular not only these proceedings (the two proceedings in which this application is brought) but also proceedings 2016/245332, 2017/350767 and 2017/120717. I am familiar with the contents of these five District Court files. None of them contains any challenge to the representation of the defendants and it is clear from the Federal Circuit Court of Australia proceedings that this was not an issue there either.

8. I have heard from Mr Sibtain in relation to the other matters, and I am satisfied that any application in the form of a challenge to representation of the defendants in these proceedings has yet to be brought, let alone heard.

Restraining a solicitor from appearing for a party

9. The circumstances in which the Court would grant a stay of proceedings or otherwise require a party to change representation in the absence of a considered decision to this effect by either this Court or another Court would need to be compelling. The material set out in Ms Clarke’s affidavit states that it would be unfair not to do so. Clearly, she is concerned about how the matter is being conducted, although precise details of the problems have not been indicated to me.

10. To deprive a party of its chosen legal representatives on such a basis would be wholly unreasonable. Nor is it relevant that there have been complaints made to the Office of the Legal Services Commissioner in 2018 and 2019, as this would not amount to a basis for the making of such an order.

11. Accordingly, I propose to dismiss both notices of motion.

12. I will hear from Ms Clarke in relation to costs.

13. HER HONOUR: Ms Clarke, what can you say in relation to the costs of the dismissal of the notices of motion?

[Ms Clarke addressed the court.]

14. HER HONOUR: Thank you, Ms Clarke. I don’t need to hear from you, Mr Sibtain.

15. Ms Clarke HAS asked for “no costs” order to be made, on the basis that she is without funds.

16. In Sangare v Northern Territory [2019] HCA 25, the High Court reviewed the law in relation to insolvency or other financial impoverishment of a plaintiff being a bar to the making of a costs order and stated at [27] and [32]:

“[27] In Board of Examiners v XY, Chernov JA, with whom Neave JA agreed, identified difficulties of practice and principle that beset the approach of the Court of Appeal in the present case. As a practical matter, difficulties arise in determining the level of impecuniosity at which it would become a relevant consideration. There would also be substantial practical difficulties in determining, after the conclusion of the litigation, the unsuccessful party's financial standing. In point of principle, it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party. That consideration of basic justice does not lose its compelling force simply because the successful party happens to be wealthy: the successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation. The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant-in-person.

…

[32] Whether a party is rich or poor has, generally speaking, no relevant connection with the litigation. It may be said, by way of qualification to that general proposition, that a party's financial position may be relevant to the extent that it may inform the structure of a costs order. For example, impecuniosity may justify providing for the payment of costs over time in order to avoid inflicting unnecessary hardship while at the same time improving the likelihood of compliance with the order. That said, any such qualification was not invoked in the present case.” (Footnotes omitted)

17. The High Court has held that impecuniosity does not constitute a bar. Conformably with the principles set out in their Honours’ consideration of this issue, I propose to make an order that the plaintiff pay the defendant’s costs in relation to the notices of motion which have been dismissed.

Orders

1. Plaintiff’s notices of motion filed on 9 September 2019 dismissed.

2. Plaintiff pay defendants’ costs of today.

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Decision last updated: 02 October 2019