Clarke v South Eastern Sydney Local Health District - [2019] FCCA 3769

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLARKE v SOUTH EASTERN SYDNEY LOCAL HEALTH DISTRICT & ORS

[2019] FCCA 3769

Catchwords:
PRACTICE AND PROCEDURE – Application for reinstatement following dismissal pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) – whether there is any identifiable cause of action that is reasonably arguable to give rise to utility in setting aside the order made dismissing the proceedings – no proper cause of action identified – interlocutory application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05

Cases Cited:

Spencer v Commonwealth (2010) 241 CLR 118

Applicant:

SHARMAIN DAISY CLARKE

First Respondent:

SOUTH EASTERN SYDNEY LOCAL HEALTH DISTRICT

Second Respondent:

VANESSA MADUNIC

Third Respondent:

GERRY MARR

Fourth Respondent:

JULIE HERRICK

Fifth Respondent:

MARIA FENN

File Number:

SYG 1333 of 2018

Judgment of:

Judge Street

Hearing date:

20 December 2019

Date of Last Submission:

20 December 2019

Delivered at:

Sydney

Delivered on:

20 December 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent:

Ms T Harris-Roxas

Solicitors for the Respondent:

Hicksons Lawyers

ORDERS

The application in a case filed on 17 December 2019 is dismissed.

DATE OF ORDER: 20 December 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1333 of 2018

SHARMAIN DAISY CLARKE

Applicant

And

SOUTH EASTERN SYDNEY LOCAL HEALTH DISTRICT

First Respondent

VANESSA MADUNIC

Second Respondent

GERRY MARR

Third Respondent

JULIE HERRICK

Fourth Respondent

MARIA FENN

Fifth Respondent

REASONS FOR JUDGMENT

On 23 August 2018, a Judge of this Court made orders giving the applicant an opportunity to file a further amended points of claim on or before 27 August 2018. A document was filed on that date purporting to be a further amended points of claim. There was a further purported second further amended points of claim filed on 1 February 2019.
On 30 April 2019, a Judge of the Court made orders adjourning the proceedings, given there was an application currently before the Federal Court of Australia.
On 9 October 2019, this Court made orders fixing the matter for a directions hearing at 9.30 on 29 November 2019. There is a notation to that order identifying that the Court would consider whether the orders made on 30 April 2019 should be vacated and whether the applicant would be required to file or should be given leave to file a further proper second further amended points of claim that pleads and particularises each and every cause of action.
On 29 November 2019, the applicant failed to appear, and this Court, pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), dismissed the proceedings for want of appearance.
On 17 December 2019, the applicant filed an application in a case seeking to have the proceedings reinstated and filed two affidavits in support, dated 17 December 2019 and 19 December 2019.
At the commencement of the hearing, the Court explained to the applicant the issues that arose in relation to the reinstatement of the proceedings in respect of, in essence, the exercise of the Court’s power under r 16.05(2)(a) of the Rules, and the applicant confirmed that she understood the explanation given by the Court.
The Court raised with the applicant that the statement of claim that had been filed on 1 February 2019 failed to identify any cause of action in relation to racial discrimination, and the applicant indicated that she did not seek to pursue that application and acknowledged the same. The applicant indicated that she wished to rely upon the statement of claim filed on 27 August 2018. When the Court raised with the applicant the want of any identifiable cause of action in that pleading, the applicant acknowledged that it did not identify any cause of action and accepted that, on its face, it was an abuse of process.
The applicant from the bar table identified her history in relation to the parties in respect of whom she has joined to these proceedings and her desire to pursue her cause of action for a common law alleged breach of duty of care, as well as making allegations in relation to the creation of documents.
Nothing said by the applicant from the bar table identified any basis upon which the Court could be satisfied that there is a reasonably arguable case that the applicant can bring against any of the respondents. The applicant has had three opportunities to do so, and the applicant has not identified any proper pleading that would permit the respondent to identify a reasonably arguable cause of action. The Court takes into account that the applicant is self-represented and takes into account the caution in relation to whether or not the case is hopeless as identified in Spencer v Commonwealth (2010) 241 CLR 118.
The Court has also taken into account the applicant’s explanation as to her various states of health. The applicant has proffered an explanation for her failure to appear. Whilst the explanation is not entirely satisfactory, if there was an arguable case, the Court would find that there was utility in setting aside the order made in default of appearance of the applicant and to permit the reinstatement of the proceedings.
The real issue is whether there is any identifiable cause of action that is reasonably arguable so as to give rise to utility in setting aside the order made dismissing the proceedings. The applicant’s concession in relation to the statement of claim of 27 August 2018 was properly made. It does not identify any proper cause of action and does not disclose a reasonably arguable case. There is no apparent reasonably arguable case identified in the proposed pleadings.
The applicant’s history that has been identified in the affidavits, which were admitted subject to relevance, does not identify any proper cause of action. The applicant acknowledged that she understood that, as a result of the order of 9 October 2019, the pleading that had been filed in February 2019 was inadequate, and the applicant acknowledged such, and it was for that reason, no doubt, that the applicant sought to rely upon the earlier filed document, which, for the reasons already given, identifies no reasonably arguable cause of action.
The applicant asked for a further opportunity to put on a points of claim. The applicant has had ample opportunity to identify a cause of action, if the applicant was able to do so, against the respondents. Further, the applicant was on notice as a result of the orders made on 9 October 2019 of the need to identify a proper cause of action.
While the Court understands that the applicant is self-represented and that the applicant has had wellbeing issues, this does not identify a proper basis, in the circumstances of the present case, where a further opportunity should be given to advance what would effectively be a fourth points of claim. The interests of the administration of justice do not warrant a further opportunity given the history as identified above and that the applicant has had a reasonable and fair opportunity to put on a proper pleading identifying an arguable case and has failed to do so.
The applicant’s reference to the common law cause of action in respect of the duty of care breach in respect of that proposed pleading is a further basis why this Court can see no utility in reinstating the proceedings. The Court is not satisfied that there is an arguable associated matter, being a cause of action for breach of a duty of care, on the material before the Court. Further that is not a cause of action under the Fair Work Act 2009 (Cth), which was the subject matter of these proceedings when they were commenced.
The Court can see no arguable case in respect of any cause of action identified in the pleadings that have been filed by the applicant. In these circumstances, the Court is not satisfied, given the opportunities that that applicant has had, that it is in the interests of the administration of justice to provide a further opportunity to the applicant to file another points of claim, particularly in circumstances where the cause of action identified would not be one invoking this Court’s jurisdiction. The applicant has had a fair and reasonable opportunity as a result of the orders made in October to formulate the same if the applicant was able to do so.
Considerable attention has been given to putting on affidavits that, on their face, advance serious allegations for which there appears to be little or no basis. The pleadings filed fail to identify any proper cause of action and do not disclose any reasonably arguable case.
The Court is not satisfied that there is any utility in setting aside the orders that were made on 29 November 2019.

I certify that the preceding eighteen (18) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 20 December 2019 and the parties were provided sealed copies of the Court’s orders.

Associate:

Date: 21 August 2020