Clarke v Nursing and Midwifery Council of New South Wales (No. 4)

[2019] NSWDC 659

District Court

New South Wales

Medium Neutral Citation:	Clarke v Nursing and Midwifery Council of New South Wales (No. 4) [2019] NSWDC 659
Hearing dates:	07 November 2019
Date of orders:	07 November 2019
Decision date:	13 November 2019
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Strike out the Amended Reply filed on 26 September 2019. (2) Plaintiff to administer interrogatories (limited to 30) in 14 days, with 14 days for the defendant to reply. (3) These proceedings are referred to the List Judge for allocation of a hearing date as a non-jury defamation trial involving two publications, the first involving a defence under s 237 Health Practitioner Regulation National Law (NSW) and a second being a denial of publication (estimate 3 days plus).
Catchwords:	TORT – defamation – application to strike out Amended Reply – no issue of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56-62 Health Practitioner Regulation National Law (NSW), s 237 Public Hospitals Act 1929 (NSW), s 27B Uniform Civil Procedure Rules 2005 (NSW), r 14.31
Cases Cited:	Clarke v Nursing and Midwifery Council of New South Wales (No. 2) [2019] NSWDC 531 Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126 Drinkwater v Barwon Health Services (Supreme Court of New South Wales, Levine J, 27 June 1996) Duraisamy v Sydney Trains [2019] NSWCA 269 Gross v Weston (2007) 69 NSWLR 279 Naidoo v State of Queensland & Anor [2017] QDC 63
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

1. These are proceedings for defamation arising from two publications, details of which are set out in my judgment Clarke v Nursing and Midwifery Council of New South Wales (No. 2) [2019] NSWDC 531 at [1]. As is set out in that judgment, the defence to one of these publications requires a Reply to be filed in accordance with r 14.31(3) Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

2. As is set out in my earlier judgment, Mahony SC DCJ granted leave to the plaintiff to file a Reply on 13 June 2019, following the prolix pleading of such matters in an affidavit in lieu of a Reply. An Amended Reply was filed by 18 June 2019 but that was struck out by consent. On 25 July 2019, Letherbarrow SC DCJ made orders for argument in relation to what was effectively the plaintiff’s third attempt, which resulted in my making a self-executing order.

3. An Amended Reply was filed by the due date, but the defendant complains that the same errors of pleading still exist. The defendant seeks the striking out of the Amended Reply in order to prepare for trial, as the parties agree that the hearing date should be allocated today.

4. The plaintiff’s position is that the whole of this issue should await discovery and interrogatories, as is set out in her email of 5 November 2019, which is as follows:

“Dear Sir/Madam

I am the Plaintiff in the matter complained about. The Plaintiff’s position is such; [sic]

There will be an objection to any arguments to be made on 7 November 2019, because [sic]

The Plaintiff request Her Honour to make Directions for the matter to be further case managed in response to interrogatories and or notice to admit facts, the subject matter on arguments to be heard is premature because the defendants have not complied to [sic] the Orders made by His Honour Judge Mahony [sic] and His Honour Judge Leatherbarrow [sic] in completeness.

Other than the above requirements the Plaintiff is ready to have the matter set down for a Hearing date [sic].

The Solicitor conducting the day to day proceedings is very much aware from the deficiencies in repeated communications via email.

Kind Regards

Sharmain Clarke”

5. Full discovery was given by the defendant many months ago and the sole outstanding issue is the plaintiff’s request to administer interrogatories, for which I have granted leave (limited to 30 in number). However, the need for interrogatories is not a reason for deferring the defendant’s application, particularly given the history of these proceedings and the expiry of the self-executing order.

Reasons for striking out the Amended Reply

6. The requirements for a properly pleaded Reply are set out in Gross v Weston (2007) 69 NSWLR 279, as I noted in my earlier judgment at [9]. It is unnecessary for me to repeat the contents of this decision, as it had been raised on each prior occasion that the deficiencies in the plaintiff’s Reply has come before the court.

7. The deficiencies in the Amended Reply summarised by the defendant’s solicitor as objectionable (by reference to paragraph numbers in the pleading) are as follows:

1. Paragraphs 1 and 4 – 9: These paragraphs do not plead any relevant matter of defeasance and refers to qualified privilege, which defence is not raised.

2. Paragraph 3: A failure to enquire is not, without more, a proper ground of defeasance in relation to the statutory defence.

3. Paragraph 10: The plaintiff sets out the statements in the first matter complained of were “erroneous” and “dishonest” without setting out the facts, matters and circumstances relied upon to assert that the statements were known by the publisher to be false. The claim that the first matter complained of was published on the “National Register” is not part of the statement of claim; the matter sued upon is the publication of an email to an officer of the Australian Health Practitioner Regulation Agency (“AHPRA”). There are no particulars of the matter complained of on any “National Register”.

4. Paragraph 11: Not only is the manner and extent of publication not a relevant matter of defeasance, but there is no claim pleaded that the email was published beyond its named recipient.

5. Paragraph 12: The conduct of the litigation is not a relevant matter of defeasance of the good faith defence.

6. Paragraph 13: The conduct of the defendant in other proceedings is not relevant to the defeasance of the good faith defence and even if it were, the basis upon which such a claim is made should be the subject of careful pleading.

7. Paragraphs 14 and 15 – 21: Failure to enquire, without more, is not a ground of defeasance. If what the plaintiff challenges is the propriety of the defendant’s actions under the Health Practitioner Regulation National Law (NSW) (“National Law”) prior to the publication of the first matter complained of, that must be particularised. The manner in which the conduct of the defendant in administering its regulatory function is relevant to an allegation of malice and/or lack of good faith cannot be made out by the publication of a summary of conclusions historically made by the defendant.

8. Paragraphs 22 – 24: The function of these paragraphs is unclear. Further, they are replete with conclusions but devoid of facts.

9. Paragraphs 25 – 28: These particulars relate to the varying of the conditions on the plaintiff’s registration. The plaintiff states that the conditions were not varied but deleted, with new conditions imposed. How this would support a plea of malice is not explained. Nor is it explained how a claim that the plaintiff was unjustifiably suspended would sustain an allegation that the publication of the first matter complained of was not in good faith. Even if the plaintiff had been suspended unjustifiably (which the defendant denies), that does not mean that the reporting of that fact to AHPRA would not be in good faith.

10. Paragraphs 29 – 36: These paragraphs make general assertions about the conduct of the defendant without identifying the particulars relied upon as going to defeasance of the defence.

11. Paragraphs 37 – 54: These paragraphs appear under a heading concerning a defence of qualified privilege, which has not been pleaded. And appear to concern the second matter complained of. The defendant does not raise a defence under s 237 of the National Law in respect of that matter, as publication is denied.

8. The plaintiff’s answer to these complaints was to repeat what she said in her correspondence, namely that the defendant was well aware of the issues at trial and that this application should not be dealt with because she wanted discovery, interrogatories and a hearing date.

9. The order I made was a self-executing order requiring compliance with the principles set out in Gross v Weston. As the above list demonstrates, the plaintiff has failed to comply with those requirements and the Amended Reply is thus liable to be struck out.

10. The consequence of striking out this Amended Reply is that unless an application to set aside the self-executing order is made, the proceedings would go to trial with no defeasance of the good faith defence. The circumstances in which a self-executing order will be set aside are discussed by Hunt J in Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126. Should such leave be granted?

Whether a further extension should be given

11. The first difficulty is that the Amended Reply does not give proper notice to the defendant of the case that will be raised at the hearing in defeasance of the defence under s 237 of the Health Practitioner Regulation National Law (NSW). That defence can only be defeated if the plaintiff can establish that the defendant did not act “in good faith” in publishing the relevant matter complained of.

12. I note the discussion of this defence in Naidoo v State of Queensland & Anor [2017] QDC 63 at [107] and [108], where a defence of this nature is pleaded. Robertson DCJ observed at [108]:

“[108] The Act does not define “good faith”, and in the context of defamation proceedings should not be construed as an absence of malice. In my view, to act in “good faith” is to act honestly. Having observed the second defendant give evidence, I accept that when she made the notification she honestly believed that she was publishing information to AHPRA which was true and that the opinions expressed therein e.g. that the plaintiff implied that she would intentionally withhold treatment from a patient to spite him personally, and to undermine him as part of a larger conspiracy, were opinions honestly held by her. It follows that she is protected from liability for defamation pursuant to s 237(3)(b) of the Act.” (Footnote omitted)

13. The interaction between malice and good faith is not the subject of any significant consideration in the few cases where this defence has been pleaded. In Naidoo v State of Queensland & Anor, the defence of qualified privilege was pleaded in addition to the s 237 statutory defence.

14. There is a helpful discussion of the elements of a statutory defence of good faith by Levine J in Drinkwater v Barwon Health Services (Supreme Court of New South Wales, Levine J, 27 June 1996) where his Honour states, in relation to a defence under s 27B of the Public Hospitals Act 1929 (NSW):

“S27B of the Public Hospitals Act provides: “No matter or thing done by a board of directors of a hospital, any director or any person under the direction of the board shall, if the matter or thing was done in good faith for the purpose of performing the duties of the board under this or any other Act, subject a director or a person so acting personally to any action, liability, claim or demand.” For the second defendant it was contended that the thing done (speaking to the media) was done by a director and the evidence disclosed it was done in good faith and for the performance of the duties of the Board under the Act.

I was referred to the decision of the High Court in Webster and Anor v Lampard (1993) 116 ALR 545 in which it was held that where a statutory defence is available in respect of acts having a designated connection with the course of official duty, such that it be done in “pursuance” or “execution” of some statute, public duty or office, the general onus of establishing that connection will, in the absence of some identified contrary legislative intention, rest on the defendant who invokes the defence. Further it is only where the prima facie inference from the conceded or proven facts is that the defendant was genuinely, albeit mistakenly, purporting or intending to act in pursuance of statutory authority or duty, that the onus lies on the plaintiff to prove that the defendant was really actuated, not by an honest desire to do his duty, but by some impermissible purpose or motive. In those circumstances the onus of establishing that the defendant's ostensible pursuit of public duty was pretended rests only upon the plaintiff as the party who asserts it. There the Court was concerned with the operation of s47A of the Limitation Act, 1935 (WA) which provided that no action shall be brought against any person “for any act done in pursuance or execution or intended execution of any act, or of any public duty or authority” and a further defence under s 138 of the Police Act, 1892 (WA) which provided that no action shall lie against any officer on account of any act, matter or thing done in carrying the provisions of the Police Act into effect against any parties offending or suspected of offending against the same, unless there is direct proof of corruption or malice.

Attention was focussed by counsel for the second defendant upon the expression “in good faith” as set out in s27B and the analysis of notions of good faith by Hunt J in Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 62 and following. Further reference was placed upon what Hunt J said in the first instance in Rajski v Carson and Ors (1986) 4 NSWLR 735 as to the distinction between “purpose” and/or “motive” (it being formally submitted that the decision of the Court of Appeal in Rajski v Carson (1988) 15 NSWLR 84 was wrong).

In the context of the Defamation Act, 1958 and the defences provided by s17 Mr McClintock referred me to the decision of the Court of Appeal in Bridges v Australian Consolidated Press (1967) 70 SR NSW 52 and particularly the judgments of Walsh JA at 61F and Jacobs JA at 66F; additionally Calwell v Ipec Australia Ltd (1975-1976) 135 CLR 321 at 331 per Mason J with respect to s17(e) was relied upon.

The distinction between “purpose” and “motive” as discussed by Hunt J and the concepts involved in “good faith” in the cases cited above are clear and valid.”

15. Levine J noted that there may well be distinctions between “good faith” and “malice”, but these were not resolved in the course of argument.

16. Given the comparative rarity of the defence, the complexity of the background in terms of the numerous documents the parties have already exchanged and the need for some form of effective case management to be provided under ss 56-62 Civil Procedure Act 2005 (NSW), care should be taken to ensure that the defendant knows the case it has to meet at trial.

17. The defendant’s case will be that it maintained a comprehensive recordkeeping system in respect of each practitioner, including the plaintiff, which system must record all disciplinary and other interactions between the defendant and the plaintiff, including correspondence and documents created in relation to that correspondence. In publishing the first matter complained of, the defendant’s case at trial will be that it had recourse to that system and generated a fair summary of the records maintained by it, which, in other words, amounts to good faith, in that it was responding to a request from a co-regulatory body concerning the registration and providing information from the defendant’s record concerning the plaintiff and the status of her conditions.

18. These are the matters about which absence of good faith should be particularised. Examination of the plaintiff’s Amended Reply does not demonstrate any correlation with the defendant’s intended case at trial. This is despite the plaintiff being made aware, in my earlier judgment, of these principles.

19. The second difficulty is that the plaintiff is unable to disentangle what her Amended Reply to the defence would be from her framework of complaints about her treatment in the disciplinary proceedings, which include allegations of lying, dishonesty and absence of procedural fairness.

20. A factor the plaintiff submitted is relevant is that she is a litigant in person. However, in Duraisamy v Sydney Trains [2019] NSWCA 269, Bell P stated at [25]:

“25. I would add only this, and it is to note that Senior Counsel for the respondent relies upon the High Court’s endorsement in Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806 at [47] of the observation of Samuels JA in Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep):

“the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.”

21. The third difficulty is that, as her correspondence confirms, the plaintiff is clearly not prepared to provide a further Reply, and insists instead upon other steps being taken to ready this matter for trial.

22. A self-executing order will be set aside in circumstances where the prevailing justice of the case should prevail over compliance with timetables, for the reasons explained by Hunt J in Douglas v John Fairfax & Sons Ltd. However, the plaintiff in the present case has had ample opportunity to set out her particulars and has failed to do so on a series of occasions.

23. The Amended Reply filed in these proceedings speaks for itself. The errors pointed to by the defendant are substantial and serious. The plaintiff’s failure to engage with any of these complaints amounts to an “all or nothing” approach which gives the court no alternative other than to strike the Amended Reply out in its entirety.

The plaintiff’s further application

24. After the hearing had concluded, the plaintiff returned to the court without Mr Sibtain to state that Mahoney SC DCJ had not struck out the Reply as asserted by Mr Sibtain.

25. There is little a court can do in circumstances where parties come to court ex parte in this fashion. I will note, however, that whatever orders were made by Mahoney SC DCJ, the plaintiff had the benefit of a lengthy hearing and judgment in relation to the Reply previously before the court but the version of the Reply currently before the Court shows little or no recognition of the pleading problems which were analysed and discussed by Mr Sibtain with considerable patience and care. In addition, as noted above, rather than participate in any analysis of the current problems, she instead asks the court to leave this to the trial judge, which I am not prepared to do.

26. These proceedings were otherwise ready to take a hearing date and, in order to permit the parties to apply to the List Judge, I made orders on the basis that I would provide these short written reasons at a later date.

Orders

1. Strike out the Amended Reply filed on 26 September 2019.

2. Plaintiff to administer interrogatories (limited to 30) in 14 days, with 14 days for the defendant to reply.

3. These proceedings are referred to the List Judge for allocation of a hearing date as a non-jury defamation trial involving two publications, the first involving a defence under s 237 Health Practitioner Regulation National Law (NSW) and a second being a denial of publication (estimate 3 days plus).

**********

Decision last updated: 13 November 2019