Clarke v Nursing and Midwifery Council of New South Wales & Ors (No.2)
[2019] FCCA 3035
•18 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLARKE v NURSING AND MIDWIFERY COUNCIL OF NEW SOUTH WALES & ORS (No.2) | [2019] FCCA 3035 |
| Catchwords: CONSUMER LAW – Amended Application alleges breaches of duty of care, negligence and breaches of privacy under the Privacy Act 1988 (Cth) and the Competition and Consumer Act 2010 (Cth) by the Third Respondent – application for summary dismissal made under r.13.10 of the Federal Circuit Court Rules 2001 (Cth) by the Third Respondent of the Amended Application– Applicant has no reasonable prospect of successfully prosecuting the proceeding against the Third Respondent and the proceeding is otherwise frivolous, vexatious and an abuse of the process of the Court – no leave to replead granted – Amended Application summarily dismissed as against the Third Respondent. |
| Legislation: Competition and Consumer Act 2010 (Cth) Privacy Act 1988 (Cth) Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Agar v Hyde (2000) 201 CLR 552 Clarke v Nursing and Midwifery Council of New South Wales & Ors [2019] FCCA 2127 Geneva Laboratories Ltd v Nguyen (2014) 110 IPR 295 |
| 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: | 18 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 18 October 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 K. Morris |
| Solicitors for the Second Respondent: | Clayton Utz |
| Counsel for the Third Respondent: | Ms P. Thew of Counsel |
| Solicitors for the Third Respondent: | Moray & Agnew Lawyers |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
In connection with the First and Fourth Respondents:
Pursuant to Rule 21.02(2)(a) of the Federal Circuit Court Rules 2001 (Cth), the Applicant is to pay the First and Fourth Respondents’ costs and disbursements of the proceeding in the gross sum of $10,000.
Pursuant to Rule 21.02(2)(d) of the Federal Circuit Court Rules 2001 (Cth), the Applicant is to pay the First and Fourth Respondents’ costs aforesaid within 30 days of today.
The payment of costs pursuant to Order 1 to one Respondent is to that extent to be satisfaction of the costs order in favour of the other Respondent.
In connection with the Second Respondent:
Pursuant to Rule 21.02(2)(a) of the Federal Circuit Court Rules 2001 (Cth), the Applicant is to pay the Second Respondent’s costs and disbursements of the proceeding in the gross sum of $24,000.
Pursuant to Rule 21.02(2)(d) of the Federal Circuit Court Rules 2001 (Cth), the Applicant is to pay the Second Respondent’s costs aforesaid within 30 days of today.
In connection with the Third Respondent:
The proceeding as against the Third Respondent is 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 prospect of successfully prosecuting the proceeding and the proceeding is otherwise frivolous, vexatious and an abuse of the process of the Court.
The question of costs be reserved, and is set down for hearing on 27 November 2019 at 2:00pm in Court 9.2, 80 William St, Sydney.
Direct the Third Respondent to file and serve any affidavit evidence and such Written Submissions as it may be advised in support of its application for a gross sum costs order by 1 November 2019.
Direct the Applicant to file and serve any affidavit evidence and Written Submissions in opposition to a gross sum costs order by 15 November 2019.
| 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)
First, Second and Fourth Respondents’ Application for Costs
In this matter I delivered Reasons for Judgment on 23 July 2019 bearing medium neutral citation [2019] FCCA 2127, which reasons will speak for themselves and which resulted in orders that the proceeding be dismissed under r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (the Rules) as against, on the one hand, the Second Respondent and, on the other hand, the First and Fourth Respondents. Today is the hearing of the application for costs made by Mr Kettle of Counsel, who appears for the First and Fourth Respondents, and Ms Morris, who appears for the Second Respondent. They each seek orders under r.21.02(2)(a) and (d) of the Rules. I consider first the application for costs of the First and Fourth Respondents.
First and Fourth Respondents’ Application for Costs
The First and Fourth Respondents have incurred costs, as disclosed by the affidavit of Ms Camille Faunt sworn on 8 August 2019, of something in the order of $53,000 - $54,000. However, for reasons known to them, these Respondents are prepared to moderate their claim for costs against the Applicant, indeed very greatly moderate their claim, so as to seek an order for costs limited to the amount of $10,000, inclusive of the fees payable to Counsel.
That is a very moderate and commendable position for the First and Fourth Respondents to adopt. I accept from the affidavit of Ms Faunt that very considerable costs have been incurred, well in excess of the $10,000 sought, and I see no reason why these Respondents should not have an order in their favour for that lesser amount.
It is true to say that Ms Faunt does not specifically give evidence of the reasonableness of the costs payable by these Respondents to her firm in the amount of $53,000 - $54,000, but from my own knowledge of the matter and my own knowledge of legal costs it is obvious that costs far in excess of $10,000 would have been reasonably incurred by these Respondents in running this case up to and including their successful Application in a Case for summary dismissal.
Second Respondent’s Application for Costs
I move now to the Second Respondent. It also seeks a moderated amount for its costs.
It relies on the affidavit of Ms Sharon Burnett affirmed on 5 August 2019 and limits the costs order which it seeks against the Applicant to the sum of $24,000, even though its actual costs are well in excess of that amount, being $43,653 (not including an incurred filing fee of $390), and that on taxation the likely result would be an order for costs between $28,374.45 and $32,739.75, with a midpoint of $30,557.50. The sum of $24,000 therefore represents a discount for the Applicant of approximately 20% of that midpoint. I note that Ms Burnett, on information and belief, gives evidence from Mr Zac Chami, who is a very experienced litigator, as to the reasonableness of the costs incurred by the Second Respondent and it seems to me that an amount of $24,000 is entirely in order.
Costs Generally in the Proceeding
The costs being ordered in relation to this litigation are not to punish the Applicant but to indemnify, insofar as is reasonable, the costs incurred by the Respondents.
I have found the litigation brought by the Applicant against the First, Second and Fourth Respondents to be unmeritorious litigation and, notwithstanding that I take into account that the Applicant is a litigant in person, as the High Court has recently said in Northern Territory v Sangare [2019] HCA 25 at [27]:
[27]…unmeritorious litigation is no less unmeritorious because it is pursued by a person who … is a litigant in person.
Further, notwithstanding that the Applicant is a litigant in person, that fact does not shield her from an order for costs. As Buchanan J said in Kennedy v Secretary, Department of Industry (No 2) [2015] FCA 884 at [12]:
[12] The applicant was self-represented in the present case. However, that is not a circumstance which relieves an unsuccessful, self-represented litigant from an obligation to pay costs if they are otherwise justified. In Ogawa v University of Melbourne (No 2)[2004] FCA 1275, Kenny J adopted the following statement by Hodgson CJ in Eq in Bhagat v Royal & Sun Alliance Life Assurance Australia Ltd[2000] NSWSC 159 at [13] (which I also adopt as a statement of the relevant principle):
[13]… I accept that a court does have to make allowances for the position of litigants in person, and to try to ensure that such a litigant does not lose out because of lack of expertise; although there is a limit to what the Court can do in that regard, while still remaining an impartial determinant of a dispute. The Court may in those circumstances refrain from making orders against litigants in person for conduct that might be considered as justifying orders for costs against represented litigants. By the same token, litigants in person can cause great hardship and expense to other parties, through making allegations and claims that lawyers would recognise as allegations and claims that could not reasonably or even properly be made, and through making proceedings much longer and much more expensive than they otherwise would be, by not focusing accurately on the real issues in the case. Conduct of that nature by legally represented parties would often lead to orders for indemnity costs. Litigants in person may escape the consequence of indemnity costs, but I do not think that the circumstance that a party is a litigant in person is a ground for displacing the ordinary result that costs follow the event.
(emphasis added)
Accordingly, as I have said, I consider that the costs sought by these Respondents this afternoon to be completely reasonable and I propose to make a costs orders in their favour as sought.
Third Respondent’s Application for Summary Dismissal
As I have said, in earlier reasons for judgment dated 23 July 2019, I dismissed the present proceeding as against the First, Second and Fourth Respondents pursuant to r.13.10 of the Rules because the Applicant had no reasonable prospect of successfully prosecuting the proceeding against those Respondents, and it was otherwise frivolous, vexatious and an abuse of the process of the Court.
For similar reasons which now follow I intend to dismiss the proceedings as against the Third Respondent (the Association) which, in its Response filed on 13 August 2019, sought the following orders:
1. The proceeding be dismissed pursuant to Rule 13.10 of the Federal Circuit Court Rules 2001 on the basis that:
(a) There is no reasonable prospect of the applicant successfully prosecuting the proceeding; and/or
(b) The applicant's claim for relief is frivolous and vexatious.
2. An order that the applicant pay the third respondent's costs of the proceeding.
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 so filed on 8 March 2019 (Points of Claim).
Purpose of Proceedings
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 Limited (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, so in the normal case a degree of latitude is extended by a Court.
Background
From about 17 December 2004 until the present time the Applicant, who is a nurse, has been a member of the Association.[1] The Association provided assistance to the Applicant with respect to her employment with her former employer, the South Eastern Sydney Local Health District (SESLHD).[2]
[1] The Applicant’s Affidavit filed 25.2.2019 at [11] and the Applicant’s Response filed 27.8.2019 at [4]
[2] The Applicant’s Response filed 27.8.2019 and the Applicant’s Affidavit filed 27.8.2019, including annexures (such as Application filed in the IRC on 26.5.2015 (p72 of 202), letter from Association to the Applicant dated 24.6.2015 (p68 of 202), IRC transcript dated 7.7.2015 (p35 of 202), IRC transcript dated 28.7.2015 (p38 of 202))
On 5 May 2015, the SESLHD terminated the Applicant’s employment.[3] On 26 May 2015, under instruction by the Applicant, the Association filed an ‘application for relief in relation to unfair dismissal’ with the New South Wales Industrial Relations Commission on behalf of the Applicant (the IRC proceeding).[4]
[3] Letter from SESLHD to the Applicant dated 5.5.2015 annexed to the Applicant’s Affidavit filed 27.8.2019, pp 82-83 of 202
[4] Application filed in the IRC on 26.5.2015 annexed to the Applicant’s Affidavit filed 27.8.2019, p72 of 202
The Association represented the Applicant in the IRC proceeding. By letter dated 24 June 2015, the Association advised the Applicant that the IRC proceeding did not have reasonable prospects of success.[5] The IRC proceeding was listed for a conciliation conference and directions hearing on 7 July 2015 (conciliation conference). The Applicant attended the conciliation conference together with two representatives from the Association.[6]
[5] Letter Association to the Applicant dated 24.6.2015 annexed to the Applicant’s Affidavit filed 27.8.2019, p69 of 202.
[6] The Applicant’s Response filed 27.8. 2019 at [16(4)(d)] on p7
At the conciliation conference on 7 July 2015, the Applicant agreed to a final and binding settlement of the IRC proceeding (binding settlement). This is evident from page 3 of the 7 July 2015 transcript, line 8-9, where Commissioner Newall is recorded as stating that a ‘firm and binding’ settlement had been achieved.[7] On the same page of the transcript, at line 43-44, Commissioner Newall says, ‘I thank you all for your work this afternoon. I congratulate you on resolving the matter. The Commission now adjourns.’ The binding settlement was entered into with the Applicant’s apparent knowledge and consent.[8] In the days following the conciliation conference, the Association prepared a deed of release in which the terms of the binding settlement were recorded and the proposed deed was sent to the Applicant by email.[9]
[7] The Applicant’s Affidavit filed 27.8.2019, p37 of 202 (page marked with numbers 543 and 540).
[8] Letter Association to the Applicant dated 21.7.2015 annexed to the Applicant’s Affidavit filed 27.8.2019, p123 of 202*
[9] Letter Association to the Applicant dated 6.8.2015 annexed to the Applicant’s Affidavit filed 27.8.2019, p114 of 202
The Applicant did not sign the proposed deed, or any deed, in relation to the binding settlement.[10] By email to the Association dated 19 July 2015, the Applicant confirmed that she had entered into a ‘binding agreement’ but that she would not execute the relevant release.[11] On 21 July 2015 the Association informed the Applicant that it would cease to act for her in relation to the IRC proceeding.[12]
[10] Emails from the Applicant to the Association on 18.7.2015 and 19.7. 2015, annexed to the Applicant’s Affidavit filed 27.8. 2019, pp 174 and 176 of 202
[11] Email from the Applicant to the Association dated 19.7. 2015 annexed to the Applicant’s Affidavit dated 27.8.2019, p176 of 202.
[12] Letter dated 21 July 2015 annexed to the Applicant’s Affidavit filed 27.8.2019, p133 of 202.
On 28 July 2015, the Applicant agreed with Commissioner Newall at a report back of the IRC proceeding that she had agreed to the binding settlement, at lines 39-46 of page 5 of the transcript dated 28 July 2015, and again at lines 41-47 of page 6.[13] Commissioner Newall stated on transcript that the IRC proceedings would therefore be discontinued as soon as the Association filed a Notice of Discontinuance, at pages 43-49 on page 8.[14]
[13] The Applicant’s Affidavit filed 27.8.2019, p42 of 202 (page marked with numbers 556 and 553); p47 of 202 (page marked with numbers 557 and 554)
[14] The Applicant’s Affidavit filed 27.8.2019, p45 of 202 (page marked with numbers 559 and 556).
The Notice of Discontinuance was not in fact filed because the Applicant advised the Association that she had obtained alternative representation, and then on 1 August 2015 that she intended to represent herself.[15] The chronology of these matters is set out in a letter from the Association to Commissioner Newall dated 6 August 2015.[16] On 21 August 2015 the Association filed a notice of ceasing to act in the IRC proceeding.[17]
[15] Letter from the Association to the IRC dated 20.8.2015, annexed to the Applicant’s Affidavit filed 27.8.2019, p103 of 202.
[16] Letter from the Association to the IRC dated 6.8.2015, annexed to the Applicant’s Affidavit filed 27.8.2019, p114 of 202.
[17] The Applicant’s Affidavit filed 27.8.2019, p99 of 202.
The Points of Claim as Made against the Third Respondent
From [41] to [74] of the Points of Claim the Applicant makes conclusory assertions against the Association, alleging breaches of duty of care, negligence and breaches of privacy under the Privacy Act 1988 (Cth) and the Competition and Consumer Act 2010 (Cth), without pleading in any proper, coherent or meaningful form any material facts. I note in this connection, and find on the balance of probabilities, that she has not responded to a letter from the Association’s solicitor requesting further and better particulars dated 13 August 2019, to which I had ordered her on 9 August 2019 to respond by 27 August 2019.
At the hearing an affidavit of Mr Denham, the solicitor for the Association, established that an email had been forwarded to the Applicant on 13 August 2019 attaching a letter of the same date requesting further and better particulars. The Applicant, however, asserted from the Bar Table that she had not received this email. In response Ms Thew of Counsel, who appeared for the Association, tendered a later email of 3 September 2019 from her instructing solicitor to the Applicant, attaching Mr Denham’s affidavit.
So I find that the letter dated 13 August 2019 requesting further and better particulars was forwarded twice to the Applicant, first by Mr Denham’s email of 13 August 2019 and then as part of Mr Denham’s affidavit served on her by email on 3 September 2019. In the result this controversy may not much matter because all that is established on my findings is that the Applicant did not avail herself of an opportunity to amplify her claims against the Association by provision of further and better particulars.
Principles Applicable to Summary Dismissal
Rule 13.10 of the Rules provides as follows:
13.10 Disposal by summary dismissal
The Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
In Geneva Laboratories Ltd v Nguyen (2014) 110 IPR 295 Gleeson J in the Federal Court of Australia said at 305 [56]:
[56]A matter is frivolous and vexatious where the “cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before the court”: Norman v Matthews (1916) 85 LJKB 857 at 859 .
Further, in Pridmore v Magenta Nominees Pty Ltd (1999) 161 ALR 458, Nicholson J (referring to the former Order 20 rule 2 of the Federal Court Rules 2011 (Cth)) said at 462 – 463 [24]:
[24]… The terms "vexatious" and "frivolous" have been used interchangeably: The Atlantic Star [1974] AC 436 at 464-8. "Frivolous" has been held to be apt to describe proceedings in which the plaintiff’s claim is so obviously untenable that it cannot possibly succeed: Burton v Bairnsdale Shire (1908) 7 CLR 76 at 92. "Vexatious" has been held to be apt to describe an action which is a sham and which cannot possibly succeed: Willis v Earl Beauchamp (1886) 11 PD 59 at 63.
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.”
Consideration
I have come to the clear view that the Points of Claim as against the Association should be struck out. The Points of Claim are incoherent, do not properly and meaningfully plead any material facts relied upon and do not properly and meaningfully set out any cognisable legal claims. They are embarrassing in the technical sense.
It would be wrong, in my view, to require the Association 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 Association to disentangle the Points of Claim and to divine and spell out any claim which is intended to be made against it.
Further, in my view the evidence clearly establishes that the Association, vis à vis the Applicant, acted reasonably and responsibly and attempted to help and assist the Applicant in connection with her post-employment dealings with the SESLHD. In the whole body of evidence before me, there is nothing which would base a cause of action against the Association. Accordingly, the Points of Claim should also be summarily dismissed on the basis that there is no reasonable prospect of the Applicant successfully prosecuting the proceeding against the Association.
Conclusion
In my view, the proceeding as against the Association should be summarily dismissed pursuant to r.13.10 of the Rules because the Court is satisfied that the Applicant has no reasonable prospect of successfully prosecuting the proceeding against it, and the proceeding against it is otherwise frivolous, vexatious and an abuse of the process of the Court.
It is often the case that the Court gives leave to replead when a pleading is struck out. Indeed, at the end of the hearing the Applicant asked to be given leave to replead. However, in this case I decline to give such leave.
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 has not been 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 Association.
Accordingly, I will dismiss the proceeding as against the Association.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 25 October 2019
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