Clarke v Nursing and Midwifery Council of New South Wales & Ors (No.3)
[2019] FCCA 3159
•25 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLARKE v NURSING AND MIDWIFERY COUNCIL OF NEW SOUTH WALES & ORS (No.3) | [2019] FCCA 3159 |
| Catchwords: PRACTICE AND PROCEDURE – Application in a Case filed by the applicant seeking relief under Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) regarding orders made on 18 October 2019 – applicant entitled to move on Application in a Case because orders not yet entered – nothing submitted by the applicant which would ground any relief under Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) – Application in a Case dismissed and orders of 18 October 2019 entered. |
| Legislation: Competition and Consumer Act 2010 (Cth) Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 |
| 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: | 25 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Third Respondent: | Ms P. Thew of Counsel |
| Solicitors for the Third Respondent: | Moray & Agnew |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
That the Application in a Case brought by the Applicant and filed in this Court on 23 October 2019 is dismissed.
That the Applicant pay the Third Respondent’s costs of the Application in a Case.
That the orders made on 18 October 2019 in this proceeding be entered.
That pursuant to r.35.13(b) of the Federal Court Rules 2011 (Cth), the Applicant have up to and including 15 November 2019 to apply for leave to appeal in the Federal Court of Australia from judgment bearing medium neutral citation number [2019] FCCA 3035.
| 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)
On 18 October 2019, a hearing took place in this matter on two issues:
a)First, the issue of the costs of the First, Second and Fourth Respondent consequent upon my dismissal of the proceeding as against them in an earlier judgment.
b)Second, the hearing of the Third Respondent’s application to summarily dismiss the proceeding as against it under r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (Rules).
Gross sum orders for costs were made in favour of the First, Second and Fourth Respondents which, because of the relative modesty of the amount sought for costs, I regarded as generous towards the Applicant in the circumstances. The Third Respondent was successful in its application for summary dismissal.
I delivered ex tempore Reasons for Judgment which dismissed the claim as against the Third Respondent, and advised the parties at that time that I would deliver revised written Reasons for Judgment as soon as possible after I had received the transcript of that date.
However, before I had completed that task the Applicant sent emails to my Chambers indicating that she wanted to move the Court to reopen or have a rehearing of the hearing that had taken place on 18 October 2019. In that situation it seemed reasonable that the orders made on 18 October 2019 not be entered and that the Reasons for Judgment of that date not be placed on the Commonwealth Courts Portal system, before a hearing took place of the Applicant’s foreshadowed application, and after appropriate notice had been given to the Third Respondent.
In the result the Applicant filed an Application in a Case on 23 October 2019, supported by an affidavit of the same date and a further affidavit filed this morning, both of which I have admitted into evidence. She seeks the setting aside of my orders and judgment of 18 October 2019 under r.16.05 of the Rules, and I take her as moving and entitled to move under r.16.05(1) because the orders have not yet been entered.
The Applicant has appeared today and she has argued her case. In the result I am going to dismiss her Application in a Case. It is clear that she is going to seek leave to bring an appeal from my judgment of 18 October 2019. She has already brought an appeal from my judgment dismissing the proceedings summarily as against the First, Second and Fourth Respondents, which I understand is before Abraham J in the Federal Court, and the appeal in relation to the decision last Friday can be linked with those appeals.
Nothing that appears in the affidavits relied upon by the Applicant would ground any relief under r.16.05 of the Rules in setting aside the orders of 18 October 2019, nor has there been anything said this morning by the Applicant that would incline me to grant such relief. Most, if not all, of her submissions this morning have been in relation to the main case and her grievances against the Third Respondent, which I have already dismissed and will be the subject of any appeal to the Federal Court.
I particularly have regard to the following passage of Mason ACJ, Wilson and Brennan JJ in the High Court in Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684:
…the circumstances in which this Court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard.
Nothing that has been put by the Applicant grounds the relief which she seeks in her Application in a Case. She had no objection to the hearing being set down for 18 October 2019 when I set that date on 27 September 2019. She has had considerable litigation experience in a number of tribunals and Courts in this State, including this Court and the Supreme Court of New South Wales. She has appeared before me in this proceeding on some seven occasions, with the hearing in relation to the summary dismissal application brought by the First, Second and Fourth Respondents on 23 July 2019 extending over a period of four hours and the hearing on 18 October 2019 extended over about two and a quarter hours.
It is clear to me from her appearances in Court, and she agreed, that she is a “very intelligent” and articulate woman. She tells me today that she is “a highly articulate woman in terms of my own area of expertise”. She was a registered nurse at the Royal Hospital for Women and obtained a Diploma of Nursing in South Africa in 1994. She was well able to put her case, as she saw it, to her advantage at the hearing last Friday and I believe I gave her a full opportunity to meaningfully put that case.
Accordingly, I have come to the view that I should not delay any longer in handing down my written Reasons for Judgment and having my orders of 18 October 2019 entered. The Application in a Case filed on 23 October 2019 should be dismissed.
At this point I will, as I indicated on 18 October 2019 I would, publish my settled Reasons for Judgment and direct that the Orders of the Court of that date be entered.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 4 November 2019
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