Clarke v South East Sydney Local Health District

[2018] NSWSC 66

Supreme Court

New South Wales

Medium Neutral Citation:

Clarke v South East Sydney Local Health District [2018] NSWSC 66

Hearing dates:

31 January 2018

Decision date:

06 February 2018

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) Strike out the statement of claim filed on 4 April 2017 pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 14.28(1)(a) and (b).

 

(2) Refuse leave to the plaintiff to file the proposed amended

 

(3) Dismiss the whole of the proceedings pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 13.4(1)(b).

 

(4) Unless an application for a different order is made in writing to my Associate within 7 days hereof, order the plaintiff to pay the defendant’s costs of the proceedings, including but not limited to the costs of the plaintiff’s notices of motion filed on 5 October 2017 and 8 November 2017 and the defendant’s notice of motion filed on 9 November 2017.

(5) Subject to any different order other than the default costs order in (4) above being made, grant leave to the defendants to apply for a gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), such application to be made within 14 days hereof or in accordance with directions made following the making of an application under (4) above.

Catchwords:

PRACTICE AND PROCEDURE – summary dismissal – no reasonable cause of action disclosed

 

JURISDICTION – Federal Court has exclusive jurisdiction under Fair Work Act 2009 (Cth) – no right of review in Supreme Court of decisions of Fair Work Commission

 

JURISDICTION – no jurisdiction to grant relief under the Anti-Discrimination Act 1977 (NSW)

  DEFAMATION – claim out of time – proposed defendants have benefit of statutory immunity as long as acted in good faith – no proper particulars of absence of good faith – action not maintainable

Legislation Cited:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 9, Sch 3
Anti-Discrimination Act 1977 (NSW) ss 93A, 93B, 93C, 108, 169(1)
Australian Human Rights Commission Act 1986 (Cth) s 3
Civil Liability Act 2002 (NSW) Pt 1A
Civil Procedure Act 2005 (NSW) ss 56, 64(4), 98(4)
Disability Discrimination Act 1992 (Cth)
Fair Work Act 2009 (Cth) s 789FD
Federal Court of Australia Act 1977 (Cth) s 32A
Freedom of Information Act 1982 (Cth)
Government Sector Employment Act 2013 (NSW) s 69
Government Sector Rules 2014
Health Practitioner Regulation National Law (NSW) ss 139E, 139B, 176E, Pt 8 Div 2
Health Services Act 1997 (NSW) s 17, Sch 1
Human Rights Commission Act 1986 (Cth)
Industrial Relations Act 1991 (NSW) Pt 7
Industrial Relations Act 1996 (NSW) ss 90B, 179(1), 355B, 357(2), 408
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4
Limitation Act 1969 (NSW) s 14B, 56A
Occupational Health and Safety Act 2000 (NSW) s 32(1)
Supreme Court Act 1970 (NSW) s 69
Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28, 15.19, 19.2
Work Health and Safety Act 2011 (NSW) s 267
Workers Compensation Act 1987 (NSW) Pt 3, ss 151E, 151H, 250, Pt 5 Div 3, Pt 8
Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 4, 280A, 280B

Cases Cited:

Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35

Category:

Principal judgment

Parties:

Sharmain Daisy Clarke (Plaintiff)
South East Sydney Local Health District (First Defendant)
Julie Herrick (Second Defendant)

Representation:

Counsel:
Plaintiff in person
L Doust (Defendants)

    Solicitors:
Hicksons (Defendants)

File Number(s):

2017/101668

Judgment

Introduction

1. The plaintiff commenced these proceedings by statement of claim filed on 4 April 2017. The first named defendant was the Royal Hospital for Women and the second named defendant was Julie Herrick. The Royal Hospital for Women was subsequently replaced by South East Sydney Local Health District (SES Local Health District) as the plaintiff’s employer in accordance with s 17 and Sch 1 of the Health Services Act 1997 (NSW).

2. The defendants raised concerns about the pleading which resulted in directions being made for the service of a proposed amended pleading. The plaintiff ultimately served on the defendants several further draft pleadings: the first was provided on 7 September 2017; the second was provided on 5 October 2017; the third was provided on 1 November 2017; and the fourth was provided on 20 December 2017. By notice of motion filed on 8 November 2017 the plaintiff sought leave to amend her statement of claim in the form of the draft of 1 November 2017. At the hearing of her motion on 31 January 2018, she was granted leave to amend her notice of motion to seek leave to file an amended pleading in accordance with the draft of 20 December 2017.

3. By notice of motion filed on 8 November 2017 the defendants sought orders to dismiss the proceedings, in whole or in part, pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.4(1)(b) and, in the alternative, to strike out the statement of claim, in whole or in part, pursuant to UCPR r 14.28(1)(b).

Background facts

4. The plaintiff was a registered nurse who worked for SES Local Health District from October 2011.

5. In about 2014 the plaintiff made a workers compensation claim which was denied. She informed me that she did not pursue the claim in the Workers Compensation Commission (WCC).

6. Concerns were raised about her competence, which resulted in her suspension and subsequent dismissal on 5 May 2015. On 26 May 2015 the plaintiff filed an application for unfair dismissal in the Industrial Relations Commission (IRC). She attended a conciliation of the dispute on 7 July 2015, at the conclusion of which Ms Hannan, her legal representative, informed the IRC that the matter had been finally resolved and that a deed would be prepared to reflect the settlement. Subsequently the plaintiff refused to execute the deed. The New South Wales Nurses and Midwives Association (the Association), which had appeared on her behalf, refused to act for her thereafter. It is not clear what occurred subsequently in the IRC but the plaintiff confirmed that she had not taken any further steps in those proceedings, notwithstanding her contention that they had not been resolved and that her claim was, accordingly, extant. The defendant contended that the matter had been settled and that money had been paid pursuant to the settlement. The plaintiff admitted that money had been paid to her bank account but contended that it had been reversed as she had not authorised receipt of the payment.

Complaint to the Australian Human Rights Commission

7. The plaintiff informed me that she had lodged a complaint with the Australian Human Rights Commission (HRC), which referred her to the Anti-Discrimination Board.

Complaint to the Anti-Discrimination Board of NSW

8. The plaintiff informed me that she had made a complaint to the Anti-Discrimination Board of NSW which had been referred to NCAT. She had not pursued the proceedings in NCAT as she was indisposed.

The District Court proceedings

9. On 15 August 2016 the plaintiff commenced proceedings by statement of claim in the District Court. She drafted the statement of claim herself. She sought remedies on the basis of six alleged causes of action, including a claim for “defamation, coercion and corruption”. Orders for pro bono assistance were made by the Registrar of the District Court on 11 November 2016 and 9 December 2016. Mr Robison of counsel was appointed to provide assistance. Mr Robison successfully opposed the defendants’ application for summary judgment and prepared an amended statement of claim which was filed on 27 March 2017 and named Julie Herrick, Susan Dale and Virginia King as defendants. The amended pleading alleged that the three defendants had published a complaint to the Nursing and Midwifery Council of New South Wales (the Council) which was defamatory of the plaintiff as a result of which she suffered loss and damage. She also alleged that Ms Dale had assaulted her and claimed damages accordingly. On about 15 August 2017 the plaintiff served a draft further amended statement of claim in the District Court which included a further defamation claim against a proposed new defendant (Vanessa Madunic) for sending an email to the Council which was alleged to carry certain defamatory imputations.

10. The plaintiff’s motion for leave to amend her pleading was heard on 5 October 2017 by Gibson DCJ. Mr Potter of counsel appeared on her behalf. Reasons for decision were published on 2 November 2017 which provided for the filing of a further pleading. Ultimately, a further amended statement of claim was filed on 24 November 2017 in which the defamation claim was abandoned. Although Ms Herrick remained named as a party in the further amended statement of claim, no allegation was made against her. The claim for damages for assault was maintained against Ms Dale, and SES Local Health District was added as the fourth defendant on the basis of an allegation that it was vicariously liable for the conduct of Ms Dale. I was informed from the bar table that the plaintiff has separately commenced further proceedings in the District Court against Ms Herrick.

Legal assistance

11. As referred to above the plaintiff obtained legal assistance (which I understand to have been provided pro bono) from Mr Robison and Mr Potter of counsel in relation to the District Court proceedings.

12. The plaintiff also obtained legal assistance for the proceedings in this Court. On 19 May 2017 Walton J referred the plaintiff to the Registrar for referral to a solicitor or barrister on the Pro Bono Legal Panel for legal assistance in the conduct of the proceedings and, if the legal advice was to the effect that there was a good cause of action, for the drafting of a pleading in conformity with the UCPR. The plaintiff acknowledged that she had drafted each version of the pleading herself. She accepted that she had had assistance from two legal centres (Redfern Legal Centre and Inner City Legal Centre) and informed me that she had paid a private solicitor for legal services which she alleged had not yet been provided. She indicated that she thought she could obtain further legal assistance if leave were granted to file an amended statement of claim (on the basis of a further draft which was different from the one served on 20 December 2017).

The plaintiff’s notice of motion

13. I propose to determine the plaintiff’s notice of motion first since, if leave to file the draft of 20 December 2017 is granted, the statement of claim as filed will be superseded and thus the defendant’s notice of motion would be rendered hypothetical.

14. The draft of 20 December 2017 is divided into six parts, each of which will be considered in turn.

Part A: parties

15. Part A lists the parties. The first two defendants from the original statement of claim remain parties: Ms Herrick, the first defendant, and SES Local Health District, the second defendant. The proposed draft includes the Council as the proposed third defendant.

Part B: paragraphs 5-18

16. Part B is entitled “Anti-Discrimination Laws in Employment”. The plaintiff alleges, in substance, that:

1. she was discriminated against by her employer, SES Local Health District, and also by Ms Herrick;

2. the IRC was obliged to consider the principles of the Anti-Discrimination Act 1977 (NSW) in making decisions;

3. the defendants breached the Government Sector Employment Act 2013 (NSW) and the Government Sector Employment Rules 2014;

4. the second and third defendants “violated” the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) by breaching the rules of natural justice, engaging in fraudulent conduct and making a decision without evidence;

5. the plaintiff suffered “intense variations in mental health conditions including symptoms of dissociations and a nervous shock” as a result of the IRC proceedings; and

6. the IRC proceedings had not, in fact, been resolved.

17. I accept the submissions made by Ms Doust, who appeared on behalf of the defendants and the proposed third defendant (the Council), that not only is the proposed draft pleading bad in form, but it does not identify any tenable cause of action in respect of which this Court has jurisdiction.

18. The Anti-Discrimination Act provides for a procedure whereby a complaint can be made to which the alleged perpetrator is invited to respond. If the dispute cannot be resolved the complaint is referred to NCAT: ss 93A, 93B and 93C of the Anti-Discrimination Act. If the complaint is substantiated, NCAT may make orders for the payment of up to $100,000: s 108 of the Anti-Discrimination Act. This Court has no such jurisdiction. The plaintiff made a complaint which was referred to NCAT but she did not pursue proceedings there. She has not identified any cause of action arising from the alleged discrimination. Nor has she identified any basis on which any alleged failure by the IRC to take into account the principles of the Anti-Discrimination Act (an obligation imposed by s 169(1) of the Industrial Relations Act 1996 (NSW)) is actionable, either generally, or in this Court.

19. The plaintiff has not identified any specific breach of the Government Sector Employment Act or the Government Sector Employment Rules. Nor has she identified any basis on which any such breach could be said to be actionable.

20. The plaintiff has no answer to Ms Doust’s submission that any application for review under the ADJR Act must be brought in the Federal Court and cannot be brought in this Court: s 9 of the ADJR Act. Although this Court has limited jurisdiction under the ADJR Act, this jurisdiction arises only where proceedings have already been commenced in the Federal Court: s 32A of the Federal Court of Australia Act 1977 (Cth). It is common ground that they have not been in this case. Further, the plaintiff has not identified any decision to which the ADJR Act could apply which would ground a right of review. In these circumstances it is not necessary to determine whether SES Local Health District or any other party has made a decision under an “enactment” as defined by s 3 of the ADJR Act: Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7. I note that the definition of “enactment” is limited to Commonwealth Acts and those State Acts which are identified in Sch 3 of the ADJR Act, which does not include any legislation of present relevance.

21. In so far as the plaintiff purports to claim for damages for physical or psychological injuries, such a claim is, in so far as it is made against her employer, SES Local Health District, not maintainable in the present circumstances by reason of the following provisions of the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Workplace Injury Management Act).

22. Section 280A of the Workplace Injury Management Act provides that a claim for work injury damages cannot be made unless a claim for lump sum compensation (defined by s 4 as compensation under Division 4 (Compensation for non-economic loss) of Part 3 of the Workers Compensation Act, being claims for permanent impairment) in respect of the injury is made before, or at the same time as, the claim for work injury damages. The term “work injury damages” is defined by s 250 to mean, relevantly, damages recoverable from a worker’s employer (in this case, SES Local Health District) in respect of an injury to the worker caused by the negligence or other tort of the employer whether recoverable in an action in tort or contract or any other action. It is common ground that the plaintiff has not made a claim for permanent impairment. Accordingly her claim for work injury damages is not maintainable.

23. Further, even were she to have made such a claim, no assessment has been made of her whole person impairment (if any). In these circumstances, no damages could be awarded by reason of Part 5 Div 3 of the Workers Compensation Act (which applies to damages recovered, whether in tort, contract or any other action: s 151E(3)) since there has been no assessment of her degree of permanent impairment: s 151H. Thus, although the plaintiff could make a claim for damages if she had made a claim for permanent impairment, no damages could be recovered until the claim for permanent impairment had been determined and paid: s 280B of the Workplace Injury Management Act.

24. Whether or not the IRC proceedings have been resolved would appear to be beside the point. If, as the plaintiff contended, they have not been resolved, then it would, subject to time limitations, be open to her to reactivate them in the IRC, which is the forum which has jurisdiction in respect of her claim for unfair dismissal. This Court has no original jurisdiction with respect to a claim for unfair dismissal, since this jurisdiction is conferred on the IRC and there is no conferral of jurisdiction on this Court under s 355B of the Industrial Relations Act. By reason of s 179(1) of the Industrial Relations Act, this Court’s jurisdiction under s 69 of the Supreme Court Act 1970 (NSW) is limited to cases where jurisdictional error in a decision of the IRC has been established: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [55] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

25. This Court might have jurisdiction to determine whether there was an enforceable agreement to settle the IRC proceedings. However, the plaintiff contended that there was no such agreement and does not claim any declaratory relief which would engage such jurisdiction. Further, an issue might arise whether this question ought be determined by the IRC in any event having regard to its involvement in the process of conciliation and the effect of payment for which provision is made in s 90B of the Industrial Relations Act. I do not discern any actionable claim or claim for prerogative or equitable relief arising from the claim for unfair dismissal.

Part C: paragraphs 19-22

26. Part C contains a reference to Part 7 of the Industrial Relations Act 1991 (the 1991 Act) and Part 1A of the Civil Liability Act 2002 (NSW). Part C contains allegations that SES Local Health District caused the plaintiff to suffer injury for which she is entitled to compensation and damages. The plaintiff also alleges that the placement of her name by SES Local Health District on a Service Check Register was not in accordance with “policy requirements”.

27. It is difficult to discern from the allegations made what claim is alleged. The 1991 Act was repealed by s 408 of the Industrial Relations Act with effect from 2 September 1996 and therefore cannot be the source of rights for the relevant period. The 1991 Act contained provisions to protect injured workers from being dismissed due to work-related injuries for which they were entitled to compensation. When the 1991 Act was repealed these provisions were inserted into Part 8 of the Workers Compensation Act and jurisdiction with respect to them was conferred on the IRC and not on this Court. The relevant application under these provisions is an application for reinstatement. The plaintiff confirmed that she did not want to be reinstated and did not propose to make such an application.

28. In so far as the plaintiff purports to make a claim for damages against SES Local Health District, she is not presently entitled to do so for the reasons given above. Accordingly, such a claim is not maintainable. In so far as the allegations ought be seen as supporting a claim for unfair dismissal, this Court has no jurisdiction to determine such a claim for the reasons given above.

29. The allegation that the placement of the plaintiff’s name on the Service Check Register was not in accordance with policy requirements does not give rise to a claim for relief under s 69 of the Supreme Court Act (if that is the alleged juridical basis) since this Court’s jurisdiction depends on there being an error of law. A failure to comply with policy requirements cannot, of itself, amount to an error of law.

Part D: paragraphs 23-26

30. In Part D, the plaintiff alleges that she was discriminated against because of an alleged disability. She calls in aid the Anti-Discrimination Act and “federal legislation” which prohibits discrimination which I take to be the Disability Discrimination Act 1992 (Cth). For the reasons given above the only “remedy” conferred on a person who complains of a breach of the Anti-Discrimination Act is to have the matter referred to NCAT, which can provide a remedy if the complaint is substantiated. Alleged breaches of the Disability Discrimination Act fall within the definition of “unlawful discrimination” in s 3 of the Australian Human Rights Commission Act 1986 (Cth). A person complaining of unlawful discrimination can lodge a complaint with the HRC. If the complaint is terminated by the President of the HRC, an application can be made to the Federal Court or the Federal Circuit Court for relief.

31. While it is possible that the acts alleged to constitute unlawful discrimination might make a dismissal unfair, the jurisdiction with respect to a claim for unfair dismissal lies, for the reasons given above, in the IRC and not this Court.

Part E: paragraphs 27-95

32. Part E is entitled “Harassments”. It makes various allegations about the behaviour of particular persons (including Ms Herrick) towards the plaintiff which, if made out, could be said to amount to bullying and harassment. It appears that the plaintiff contends that the conduct amounts to “misconduct” as defined in s 69 of the Government Sector Employment Act. The Government Sector Employment Act provides for allegations of misconduct to be investigated by the employer and, if made out, for disciplinary action to be imposed on those responsible. It does not otherwise provide a remedy for an employee who has been the victim of misconduct. Nor does it make such conduct actionable.

33. The plaintiff also alleges that SES Local Health District breached the Work Health and Safety Act 2011 (NSW) in various respects. Even accepting for the purposes of this application that any such breach could be made out, it would not, of itself, be actionable. Section 267 provides that, with exceptions which are not presently material, nothing in the Work Health and Safety Act is to be construed as “conferring a right of action in civil proceedings in relation to a contravention of a provision of this Act”. It is plain from the wording of the provision and from the High Court’s consideration of its statutory predecessor (s 32(1) of the Occupational Health and Safety Act 2000 (NSW)) in Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 at [42], that the duties imposed on employers by this legislation do not give rise to correlative private rights.

34. Although bullying and harassment could, in certain circumstances, amount to a breach of the duty of care owed by an employer to an employee to take reasonable care to provide a safe system of work or a breach of the contract of employment, any such cause of action would be limited by the provisions referred to above and would, accordingly, not be presently maintainable.

35. Remedies for workplace bullying are provided for in the Fair Work Act 2009 (Cth). However, agencies of State governments, such as SES Local Health District are excluded from the definition of “constitutionally covered business” to which the provisions apply: s 789FD of the Fair Work Act. In any event, only the Fair Work Commission has the power to grant such remedies. This Court has no jurisdiction under the Fair Work Act.

36. Part E alleges (in [62] and [89]) that an underpayment of $1,000 was not rectified for six weeks. As the plaintiff accepts that the underpayment was rectified, I cannot discern any cause of action which is presently maintainable in respect of that amount, which would, in any event, fall within the jurisdictional limit of the Small Claims Division of the Local Court of New South Wales. While an underpayment could, as Ms Doust accepted in her detailed written submissions, amount to a contravention of an industrial instrument (in this case, an award), giving rise to a potential liability to pay a civil penalty, the plaintiff has no standing to bring such an action since she does not fall within the class of persons prescribed by s 357(2) of the Industrial Relations Act.

37. To the extent to which any bullying and harassment would fall within the Anti-Discrimination Act, this Court’s lack of jurisdiction in that respect has been considered above.

Part F: paragraphs 96-111

38. Part F is entitled “Defamation underlined by malice – Breach of duty of care and personal injury”.

39. Apart from an action in defamation, the plaintiff refers in Part F to the ADJR Act and the Government Sector Employment Act. For reasons given above, these statutes do not provide any basis to support a cause of action maintainable by the plaintiff in this Court.

40. The plaintiff has also referred to the Health Practitioner Regulation National Law. In oral submissions she contended that the conduct of others involved “professional misconduct” or “unsatisfactory professional conduct” within the meaning of ss 139E and 139B respectively. The plaintiff argued that such conduct was “notifiable” under Part 8, Division 2 of the Health Practitioner Regulation National Law. This does not provide any basis for an arguable cause of action which would be maintainable by the plaintiff.

Conclusions with respect to all matters other than the claim for defamation in Part F of the draft pleading

41. For the reasons given above, the draft pleading, other than the claim for defamation in Part F, does not disclose any maintainable cause of action. Not only is the pleading embarrassing, but it also does not reveal a claim known to the law or presently maintainable in this Court. I am satisfied, for the reasons advanced in Ms Doust’s detailed submissions, that it would be futile to grant leave to the plaintiff to amend her proposed pleading since, while the problems of form could potentially be rectified, the legal deficiencies in the claims alleged are irremediable.

42. In these circumstances it is appropriate to dismiss the whole of the proceedings, including (for the reasons which follow) the defamation claim against the Council in Part F, which is, at least on its face, maintainable aside from the limitation issue and will be addressed below.

The defamation claim against the Council in Part F

43. The remaining allegations in Part F relate to an action for defamation against the Council. The plaintiff alleges that “[o]n 21 September 2015, the Third Defendant [the Council] published multiple allegations on the National Register without affording the Plaintiff any procedural fairness.”

44. The plaintiff is entitled to procedural fairness because conditions are imposed on her registration. Procedural fairness, which would be imposed by law, is also the subject of statutory provision. Any denial of procedural fairness would not appear to be relevant to a claim in defamation. Further, the Health Practitioner Regulation National Law mandates the inclusion of certain matters in the National Register. To that extent, it is difficult to see how a claim for defamation would lie for matters which are required to be included.

45. The plaintiff also alleges that she was made aware of the “defamatory imputations” on the National Register on 7 September 2017 as a result of an application the plaintiff made by letter dated 21 August 2017 under the Freedom of Information Act 1982 (Cth) to the Australian Health Practitioner Regulation Agency. The National Register is a database which records the registration status of health care professionals. The imputations alleged included that the plaintiff was an incompetent registered nurse.

46. The plaintiff is entitled to procedural fairness before conditions are imposed on her registration. Procedural fairness, which would be implied by law, is also the subject of detailed legislative provision in the Health Practitioner Regulation National Law. A health practitioner who is suspended or who has conditions placed on his or her registration has the right to challenge that suspension or those conditions in NCAT under the Health Practitioner Regulation National Law. It does not appear that the plaintiff has sought to challenge her conditions in NCAT, on which jurisdiction is conferred to review such conditions. Further, the contents of the National Register are, to a substantial extent, mandated by the Health Practitioner Regulation National Law. In these circumstances it is difficult to see how an entry in the National Register could found a private action in defamation.

47. Although the Council is protected from “any liability (including liability in defamation)” by s 176E of the Health Practitioner Regulation National Law, this protection extends only to publications made in good faith. The plaintiff alleges malice in the heading to Part F of the proposed pleading which I take to mean that an allegation is made that the publication was not made in good faith. UCPR r 15.19(2) requires a plaintiff to file and serve with a statement of claim in relation to the publication of defamatory material a legible copy of the original publication or, in the case of an internet publication, a printed copy. No such copy was annexed to the proposed draft. Nor were the particulars in UCPR r 15.19(1) provided. It is not clear to whom the publication was made as the evidence does not establish what was publicly available.

48. As the contents of the National Register relating to the plaintiff were not annexed to the proposed pleading, it is not possible to compare the matter complained of with the imputations alleged. The pleading of the defamation claim is deficient and embarrassing. The Council ought not be required to file a defence to the proposed pleading in its current form.

49. The question arises whether the plaintiff ought be given another opportunity the replead the single apparently maintainable cause of action: the claim in defamation against the Council, or whether the pleading ought be struck out and the proceedings summarily dismissed.

50. In deciding this question I am bound by the provisions of Part 6 of the Civil Procedure Act 2005 (NSW) and am required, in particular, to seek to give effect to the facilitation of the just, quick and cheap resolution of the real issues in the proceedings, this being the “overriding purpose” of the Civil Procedure Act and the UCPR: s 56 of the Civil Procedure Act.

51. Almost ten months have passed since the plaintiff commenced these proceedings. She has produced at least four versions of the statement of claim. She has been granted pro bono assistance by several legal practitioners, both in the private profession and in community legal centres. Of present relevance, she obtained assistance from Mr Potter of counsel, an experienced defamation lawyer, who appeared for her in the District Court on 5 October 2017 before Gibson DCJ, at a time when, according to the proposed draft, she was aware of the contents of the National Register, which is the subject of her proposed claim for defamation in this Court. The ultimate result in the District Court was that the plaintiff decided to abandon the defamation claim she had previously made against the three named defendants and that she did not include in the District Court proceedings the defamation claim which she currently proposes to bring. In these circumstances it cannot be assumed that the plaintiff did not raise with a lawyer the question of a defamation claim based on the contents of the National Register. Nor can it be assumed that she was not given advice that such a claim was not maintainable for whatever reason, including that there was no evidence of lack of good faith, which would have to be established to overcome the statutory protection from liability conferred on the Council by s 176E of the Health Practitioner Regulation National Law.

52. The plaintiff’s claim for defamation is not maintainable (without an extension of time) as the statement of claim was filed on 4 April 2017 and the matter complained of was, according to her proposed draft, published on 21 September 2015: s 14B of the Limitation Act 1969 (NSW). The limitation period for defamation acts is one year after publication.

53. Section 56A of the Limitation Act relevantly provides:

“56A   Extension of limitation period by court

(1)  A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action.

(2) A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 14B to a period of up to 3 years running from the date of the publication.

(3)  A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2).”

54. In [98] of the proposed draft, the plaintiff alleges:

“The plaintiff was made aware of the defamatory imputations on the National Register in 7 September 2017 after indulging in a Freedom of Information Access via AHPRA [Australian Health Practitioner Regulation Agency].”

55. It would be open to a plaintiff in such circumstances to seek an extension of time on the basis that it was not reasonable for her to have commenced an action within a year of the publication as she was, allegedly, unaware of the publication until 7 September 2017. She has not filed a notice of motion for an extension of time. No such extension has been granted. Ms Doust informed me that such an extension would be opposed and that the Council did not accept that the plaintiff only became aware of the publication of the matter complained of on 7 September 2017. The allegation in the proposed pleading as to the date on which the plaintiff became aware of the publication has not been substantiated. Although the contents of the response to her application under the Freedom of Information Act have been annexed to her affidavit of 1 November 2017, she does not depose to not being aware of the contents of the National Register (which contained conditions preventing her from practising as a nurse) until 7 September 2017. Indeed there is some evidence to suggest that the plaintiff knew much earlier of the conditions on her practice as a nurse and was aware that they were on the National Register. By condition 5 she was required to complete a performance assessment by performance assessors approved by the Council. The plaintiff’s evidence includes an email from the Council which recorded that she attended for a performance assessment on 2 December 2015, in apparent compliance with the condition (although she discontinued her participation before the assessment was complete).

56. The plaintiff’s prospects of obtaining an extension of time with respect to the defamation claim against the Council cannot be assessed with any degree of accuracy. However, the matters set out above indicate that it cannot be assumed that, even if the plaintiff were able to substantiate her contention as to when she became aware of the publication in some way, her contention would be accepted and an extension granted.

57. I reject the plaintiff’s contention that the allegations in Part F are not new or that s 64(4) of the Civil Procedure Act has any application. No claim was made against the Council in the original statement of claim and no claim in defamation was made on the basis of what was published on the National Register. The effect of allowing the plaintiff an opportunity to re-plead the claim for defamation against the Council would be to permit the plaintiff to maintain proceedings which are, prima facie, statute-barred, in respect of which the present pleading is bad in form and does not comply with the UCPR and for which, absent bad faith, a statutory immunity would seem to be applicable. No coherent particulars of bad faith appear from the pleading or were articulated by the plaintiff.

58. As the amendment, if granted, would result in the adding of a new party (the Council) the commencement of the proceedings against the Council is taken to be the date on which the amendment document is filed: UCPR r 19.2(4). Accordingly, if the proceedings are wholly dismissed the plaintiff will not be prejudiced in this respect because she would not, in any event, have had the benefit of having the amendment date back to the filing of the original statement of claim on 4 April 2017. However, even at that time, the defamation claim was statute-barred and an extension of time would have been required. The power to extend time under s 56A of the Limitation Act includes a power to extend time for up to three years. Thus, there is no irremediable prejudice if these proceedings are dismissed (other than the question of a filing fee if the plaintiff were to prepare a proper pleading and an application for an extension of time). The prejudice to the defendants if the proceedings remain on foot is that they, or at least the Council, will remain parties and continue to incur costs in proceedings where the only potentially viable claim has not been properly pleaded and is statute-barred. As the plaintiff is self-represented she is not bound by the professional rules which prohibit pleading of matters such as malice or bad faith without a proper foundation. Nor is she limited by the requirement that she must regard the proceedings as having reasonable prospects of success. The court record indicates that there have been a substantial number of directions hearings solely dedicated to the plaintiff’s pleading, many of which have not advanced the matter.

59. For the reasons set out above I do not consider that leave ought be granted to the plaintiff to file an amended statement of claim in accordance with the draft provided on 20 December 2017. Accordingly, prayer 1 of her notice of motion (which seeks such leave) is refused. The balance of the matters in the notice of motion cannot survive the making of the orders sought by the defendants.

60. I note for completeness that one of the orders sought by the plaintiff in her notice of motion (in prayer 4) is an order that this Court transfer the matter “to another forum if the Supreme Court is not the jurisdiction to assess the matter complained of.” This Court has jurisdiction in respect of some matters within the jurisdiction of the Federal Court by reason of s 4 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). Reference has been made above to aspects of the plaintiff’s claim which could, if certain conditions were met, be brought in the Federal Court. However, the jurisdiction of the Federal Court would only be engaged if a decision of a relevant body or tribunal had been made and review was sought in the Federal Court. As these conditions have not been met, the question whether a transfer to the Federal Court ought be ordered does not arise. Furthermore, it is inappropriate for a litigant to commence proceedings in this Court and ask for the proceedings to be transferred to an appropriate forum if this Court lacks jurisdiction. In substance, such an application is a request for judicial advice, which is not to be given, except in circumscribed circumstances, such as when a trustee approaches the Court for that purpose.

61. Accordingly, I propose to dismiss the plaintiff’s notices of motion filed 5 October 2017 and 8 November 2017.

The defendant’s notice of motion filed on 9 November 2017

62. For the reasons given above, none of the claims made in the statement of claim filed on 4 April 2017 is maintainable. The pleading is, in any event, too deficient to be permitted to stand. In these circumstances, for the reasons given above, the proceedings ought be wholly dismissed.

Costs

63. There does not appear to be any reason why costs ought not follow the event. However, as I have not heard the parties on costs, I will make provision for any such application.

63. The plaintiff said on a number of occasions that she was impecunious. This is not a reason not to make a costs order against her, but it does constitute a reason why it might be appropriate to make an order for costs on a gross sum basis pursuant to s 98(4) of the Civil Procedure Act rather than require the defendants to have their costs assessed.

Orders

65. For the reasons given above, I make the following orders:

1. Strike out the statement of claim filed on 4 April 2017 pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 14.28(1)(a) and (b).

2. Refuse leave to the plaintiff to file the proposed amended statement of claim served on 20 December 2017.

3. Dismiss the whole of the proceedings pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 13.4(1)(b).

4. Unless an application for a different order is made in writing to my Associate within 7 days hereof, order the plaintiff to pay the defendant’s costs of the proceedings, including but not limited to the costs of the plaintiff’s notices of motion filed on 5 October 2017 and 8 November 2017 and the defendant’s notice of motion filed on 9 November 2017.

5. Subject to any different order other than the default costs order in (4) above being made, grant leave to the defendants to apply for a gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), such application to be made within 14 days hereof or in accordance with directions made following the making of an application under (4) above.

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Decision last updated: 06 February 2018