Clarke v Nursing and Midwifery Council of New South Wales & Ors (No.2)

This matter came before Dowdy J of the Federal Circuit Court of Australia concerning applications for gross sum costs orders by the First, Second, and Fourth Respondents, and a summary dismissal application by the Third Respondent. The Applicant's amended application against the First, Second, and Fourth Respondents was summarily dismissed on the basis that it had no reasonable prospect of success and was frivolous, vexatious, and an abuse of process. The costs sought by these respondents were less than what would ordinarily be awarded.

The central legal issues before the court were whether the Applicant's amended application against the Third Respondent, which alleged breaches of duty of care, negligence, and breaches of privacy under the *Privacy Act 1988* (Cth) and the *Competition and Consumer Act 2010* (Cth), should be summarily dismissed under rule 13.10 of the *Federal Circuit Court Rules 2001* (Cth). This dismissal was sought on the grounds that the Applicant had no reasonable prospect of successfully prosecuting the proceeding against the Third Respondent, and that the proceeding was otherwise frivolous, vexatious, and an abuse of the court's process.

Dowdy J reasoned that the Applicant's amended application against the Third Respondent lacked a reasonable prospect of success and constituted an abuse of process, leading to its summary dismissal. The court found that the proceeding was frivolous and vexatious, and therefore, no leave to replead was granted. Consequently, the amended application was summarily dismissed as against the Third Respondent. The court also made orders for gross sum costs in favour of the First, Second, and Fourth Respondents as sought.