South Eastern Sydney Local Health District v Clarke

[2021] NSWSC 63

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

South Eastern Sydney Local Health District v Clarke [2021] NSWSC 63

Hearing dates:

16 - 17 November 2020

Date of orders:

9 February 2021

Decision date:

09 February 2021

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

Orders made under the Vexatious Proceedings Act 2008 (NSW) and Costs Orders made.

See paragraphs [140] – [141].

Catchwords:

CIVIL PROCEDURE — Parties — Vexatious litigants — whether litigant has frequently instituted and conducted vexatious proceedings in Australia — established – whether confined orders pressed should be made - evidence and litigant’s conduct of the proceedings establishes that she will continue to pursue the beliefs which resulted in her pursuit of vexatious proceedings if orders sought not made – orders made.

CIVIL PROCEDURE — Parties — Vexatious litigants — Stay of proceedings — orders required to shield litigants and to protect Courts — stay granted in respect of specified District Court proceedings.

Legislation Cited:

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Civil Procedure Act 2005 (NSW), ss 56, 57, 58

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Defamation Act 2005 (NSW), s 27

Disability Discrimination Act 1992 (Cth)

Government Sector Employment Act 2013 (NSW)

Government Sector Employment Rules 2014 (NSW)

Health Practitioner Regulation National Law 2009 (NSW), s 145B

Industrial Relations Act 1996 (NSW), s 84

Legal Profession Act 2004 (NSW)

Racial Discrimination Act 1975 (Cth)

Solicitors Conduct Rules 2015 (NSW)

State Records Act 1998 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), r 14.28

Vexatious Proceedings Act2008 (NSW), ss 4, 5, 6, 8

Workplace Injury Management and Workers Compensation Act 1988 (NSW)

Cases Cited:

Clarke v Dale (District Court (NSW), 8 October 2020, unrep)

Clarke v Dale and Herrick (District Court (NSW) 25 November 2019, unrep)

Clarke (previously Naicker) v Herrick [2017] NSWDC 302

Clarke v Fenn [2018] NSWDC 336

Clarke v Fenn(No 2) [2018] NSWDC 417

Clarke v Herrick [2019] NSWDC 533

Clarke v Herrick [2020] NSWCA 71

Clarke v Herrick (District Court (NSW), 8 October 2020, unrep)

Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163

Clarke v Nursing and Midwifery Council New South Wales [2019] FCA 1782

Clarke v Nursing and Midwifery Council of New South Wales & Ors [2019] FCCA 2127

Clarke v Nursing and Midwifery Council of New South Wales & Ors (No.2) [2019] FCCA 3035

Clarke v Nursing and Midwifery Council of New South Wales & Ors (No.3) [2019] FCCA 3159

Clarke v Nursing and Midwifery Council of New South Wales & Ors (No.4) [2019] FCCA 3639

Clarke v Nursing and Midwifery Council of New South Wales [2018] NSWDC 337

Clarke v Nursing and Midwifery Council of New South Wales [2020] NSWCATOD 58

Clarke v Nursing and Midwifery Council of New South Wales (No. 2) [2019] NSWDC 531

Clarke v Nursing and Midwifery Council of New South Wales (No. 3) [2019] NSWDC 532

Clarke v Nursing and Midwifery Council of New South Wales (No. 4) [2019] NSWDC 659

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

Clarke v South East Sydney Local Health District (No 2) [2018] NSWSC 357

Clarke v South Eastern Sydney Local Health District [2017] NSWCATAD 81

Clarke v South Eastern Sydney Local Health District (No 3) [2019] NSWSC 1075

Clarke v South Eastern Sydney Local Health District [2020] NSWCA 8

Guss v Law Institute of Victoria Ltd [2006] VSCA 88

Jones v Cusack [1992] HCA 40; (1992) 109 ALR 313

Naicker v South Eastern Sydney Local Health District t/as Royal Hospital for Women [2016] FWC 5697

Sharmain Daisy Clarke v South East Sydney Health District (No. 2) [2018] NSWCA 226

Sharmain Naicker and NSW Health Service - Government of New South Wales for South Eastern Sydney Illawarra Area Health Service [2008] NSWIRComm 1104

South Eastern Sydney Local Health District v Clarke [2020] NSWSC 1155

Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125

Viavattene v Attorney General (NSW) [2015] NSWCA 44

Category:

Principal judgment

Parties:

South Eastern Sydney Local Health District (First Plaintiff)
Nursing and Midwifery Council of New South Wales (Second Plaintiff)
Sharmain Daisy Clarke (Defendant)

Representation:

Counsel:
S. M. Kettle (First and Second Plaintiffs)

S. Clarke Self – Represented (Defendant)

Solicitors:
Hicksons Lawyers (First and Second Plaintiffs)

File Number(s):

2019/290194

Judgment

1. When these proceedings were commenced the South Eastern Sydney Local Area Health District and the Nursing and Midwifery Council of New South Wales sought orders under s 8 of the Vexatious Proceedings Act2008 (NSW) against Ms Clarke, formerly Ms Naicker, prohibiting her from instituting further proceedings in New South Wales without leave and staying proceedings she had already instituted.

2. Their case was that the orders had to be made, given that Ms Clarke had frequently instituted and conducted vexatious proceedings. That being established by the large number of proceedings which Ms Clarke, a nurse dismissed from her employment with the Health District in 2015, has since unsuccessfully brought against the Health District, its employees and solicitors, as well as against the Council and others, including those who have treated her for various episodes of ill health which she has suffered.

3. During the course of the hearing the Health District and Council refined the orders pressed to the subject matters of the proceedings on which their case was advanced, consistently with the approach discussed in Viavattene v Attorney General (NSW) [2015] NSWCA 44.

4. Their case relied on the affidavit evidence of the solicitor Ms Faunt, annexed to which were various decisions, as well as documents which Ms Clarke had filed in the proceedings on which the case was advanced. Ms Clarke also tendered many documents.

5. While Ms Clarke has had legal assistance at various times, she was unrepresented when she defended the orders sought at the hearing. She relied on affidavits to which were annexed documents concerning matters which had become the subject of various proceedings she has pursued over the years since her dismissal from the Health District’s employment. They include complaints which she has repeatedly made about matters such as events which occurred during and after her employment, ill health that she has suffered and treatment which she has received from time to time from various health professionals.

6. Ms Clarke’s written and oral submissions were extensive. There she sought to explain, amongst many other things, why she had not challenged judgments and decisions which she considered had been wrongly decided on appeal and that she had never intended to be vexatious in the course she has pursued in the various litigation she has conducted.

7. Ms Clarke’s explanations included her lack of understanding of various legal processes which she had set in motion; occasions when she had failed to lead evidence which would have supported her case; ill health which had prevented her from pursuing her proceedings adequately; her failures to appeal decisions which went against her because of her lack of understanding of appellate and other processes; and her beliefs as to the various misconduct in which the Health District, its employees and solicitors and the Council and others had engaged.

8. While Ms Clarke’s submissions about the many and varied matters which she advanced cast some light on the litigious course which she has so unsuccessfully pursued over the years, her explanations could not preclude the conclusion that the orders pressed must be made, confined as they finally were. To the contrary, the case she advanced reinforced that conclusion, as did the course which Ms Clarke pursued in these proceedings.

9. In August 2020 Harrison J listed the matter for hearing in November, refusing Ms Clarke’s application for further referral for pro bono legal assistance and staying the hearing of her cross summons until further order: South Eastern Sydney Local Health District v Clarke [2020] NSWSC 1155. It appears that the cross summons had not to that point been filed, but arose for his Honour’s consideration when directions for the conduct of the hearing had to be given. His Honour so concluded because, he explained: “My anticipation, having sought her assistance on this question, is that Ms Clarke wishes in that context to agitate some, if not all, of the concerns that appear to have spawned the many proceedings about which the plaintiff presently complains.”: at [7].

10. Despite this Ms Clarke later filed a motion by which she sought similar relief. After that motion was also stayed and judgment was reserved, she served a number of further versions of the cross summons which she wishes to pursue and sent those documents, as well as further submissions and other documents which she had not been given leave to file or send, to my Associate.

11. The result was that I ordered that Ms Clarke not file any further documents in the proceedings, without the prior leave of the Court, sought by motion supported by affidavit. She has since sought such leave.

12. In the result, for reasons which follow, I am satisfied that the orders sought must be made.

Reasons for Ms Clarke’s unsuccessful applications

13. It is convenient first to give reasons for my refusal of the applications which Ms Clarke made during the course of the hearing.

14. When Harrison J was informed that the matter was ready to proceed the Local Health District and Council were ordered to file and serve their evidence on or before 23 September 2020, Ms Clarke to file and serve her evidence on or before 6 November 2020 and the matter was listed for hearing on 16 and 17 November 2020.

15. By her October 2020 motion Ms Clarke sought orders giving her leave to issue subpoenas to numerous people whose evidence she had not served, as well as orders to:

1. …set aside, revoke, amend, review and or have all default judgements rescinded made in the name of Sharmain Daisy Clarke v South Eastern Sydney Local Health District commencing 2008 to date and or otherwise commencing   2015 to present date.

2. …set aside, revoke, amend, review and or have all default judgements rescinded made in the name of Sharmain Daisy Clarke v Nursing and Midwifery Council New South Wales commencing 2017 to present date.

3. … relief under Civil Procedure Act 2005 Sec 134 Orders enforceable only by Leave (1)(d).

…

1. Save prayers for relief the defendant seek the order be granted costs thrown away or postponed until the finalisation of the matter/s in filing cross summonses against the First and Second Plaintiff, and;

   (1)   and costs thrown away or postponed by filing subpoenas to be served on respondents in the matter/s complained about.

   (a)   for production of materials from the First and Second Plaintiff;

   (b)   For production of Email correspondences commencing June 2013 and ceased 20 July 2014, made to the First Plaintiff by the Defendant in the matters of multiple inappropriate conduct from unconsented touching actioned by Susan Dale amounting to repetitions with aggression of pushing, shoving, elbowing, shoulder charging and hitting the defendant (amongst actions of using her index finger and digging into the defendant, placing her hands on the defendant's shoulders, used the cardex trolley to ram into the defendant's right big toe and pulled and jerked the plaintiff's theatre top causing the plaintiff to choke); Submissions and complaints made by the defendant to the First Plaintiff on race remarks/racist slurs and copies of the defendant's small pocket diary carrying all 6 assaults naming dates and circumstances surrounding the actions of Susan Dale; Lorraine Symonds to be subpoenaed to give evidences on Julie Herrick’s action of assault actioned on the night shift under charge of Lorraine Symonds that morning; summons seeking the Plaintiff provides to the Courts the shifts Julie Herrick worked commencing 2011 and ceased on 9 May 2013 employed under the Royal Hospital for Women;

   (c)   Personnel Records of the Defendant held by the First Plaintiff commencing 2007-2008, Prince of Wales Operating Theatres; 2011-2015 Royal Hospital for Women Operating Theatres;

   (d)   Allegations of   underperformances raised by the First Plaintiff in response to PD_270 Policy Framework;

   (e)   Conduct issues, health issues and performance issues raised by the First Plaintiff;

   (f)   Second Plaintiff to be subpoenaed to give evidences on the defendant's alleged drug addiction and alleged psychiatric conditions and mental health conditions which denied the defendant in earning any remuneration.

   (g)   Maria Fenn be subpoenaed to give evidences in respect to alleged underperformances and competency issues and the creation and signing of risk assessment forms in the plaintiff's absences dated 30 December 2013 and 22 July 2014;

   (h)   Maria Fenn be subpoenaed to give evidence and be cross examined in misrepresenting the defendant with slander and labile to the Second Plaintiff on 17 September 2015

   (i)   Maria Fenn, Vanessa Madunic, Gerry Marr, Virginia King and Julie Herrick subpoenaed to give evidences in response to breaches under Privacy and Personal Information Protection Act 1998 and Crimes Act 1900 Sec 192E;

2. Any other order the Court thinks fit.”

   16. Why Ms Clarke sought to issue the subpoenas or what evidence she wanted to call from the persons she identified was not explained, but her supporting affidavit annexed numerous documents, including judgments which she sought to have set aside, revoked, amended or reviewed.

   17. Ms Clarke said that she had served the motion and informed those who she sought to subpoena that she would seek to have it heard at the November hearing, having named them as respondents to the motion, but that she had not served on them either her affidavit, or the documents she relied on. Those people included parties to proceedings Ms Clarke had unsuccessfully brought, on which the Health Service and Council relied to advance their case in which judgments had been given against her, which she sought to have set aside.

   18. For example, included were Ms Dale and Ms Herrick who Ms Clarke had cross examined in the District Court in 2020 in proceedings in which she had failed to establish that they had assaulted her during her employment, Curtis DCJ preferring their evidence over that which she had given: Clarke v Dale (District Court (NSW), 8 October 2020, unrep) and Clarke v Herrick (District Court (NSW), 8 October 2020, unrep).

   19. From her submissions it emerged that Ms Clarke’s position was like that which she took before Harrison J. Essentially, she wanted to re-agitate concerns which she had unsuccessfully pursued in the many proceedings to which her cross summons and the motion were directed. That the orders Ms Clarke sought in relation to the judgments she identified were within the Court’s power was not apparent, but that did not need then to be decided. Ms Clarke accepted that the orders she so sought were similar to those sought in the cross summons which Harrison J had dealt with.

   20. Ms Clarke’s application to have her motion heard before the summons was dealt with thus had to be refused, given that it was apparent that she was thereby seeking to circumvent the orders which Harrison J had made.

   21. Like Harrison J, I was satisfied that the motion could not then justly be heard and that the hearing of the summons had to proceed. That course could not be diverted by Ms Clarke’s desire to re-litigate the many earlier cases in which she had not succeeded. It followed that the leave sought to issue the proposed subpoenas could also not be granted.

   22. When later tendering her evidence, however, Ms Clarke again pressed for leave to issue the subpoenas, which she accepted would have required an adjournment of the hearing, if granted. That application was also opposed and refused.

   23. It is pertinent to note that the orders pressed were:

3. An order sought by the defendant save prayers for relief leave be granted to issue a subpoena to Debra Hannan employed by the Nurses and Midwives' Association to be cross examined in response to unconscionable dealings and undue influences in matters arising in the Industrial Relations Commission on 7 and 28 July 2015 by reason of concerting with the First Plaintiff.

4. An order sought the by the defendant save prayers for declaratory relief be granted such that, matters referred to in P.4 above, be referred to the Equity Division of the Supreme Court for determination.

5. An order sought by the defendant leave be granted to issue a subpoena to Dr Anthony Samuels to be cross examined in response to undue influences, unconscionable dealings, negligent, fraudulent misrepresentations actioned on the defendant on 29 March 2018, 2 April 2019 and 25 February 2020.

6. An order sought by the defendant leave be granted to issue a subpoena to Dr Karen Arnold to be cross examined in response to unconscionable dealings, negligent, fraudulent misrepresentations and undue influences actioned on the defendant on 22 May 2018, 11 June 2019 and 24 March 2020.

7. An order sought by the defendant leave be granted to issue a subpoena to Dr Andrew Adams to be cross examined in response to unconscionable dealings, undue influences, negligent and fraudulent misrepresentations commenced 2016 and ceased May 2019

8. An order sought by the defendant leave be granted to issue a subpoena to Anne Lucas to be cross examined in response to unconscionable dealings and undue influences, negligent and fraudulent misrepresentations of the defendant actioned on or about 24 October 2017

9. An order sought by the defendant leave be granted to issue a subpoena to Dr Patrick Toohey to be cross examined in response to unconscionable dealings, fallacious statements, undue influences, negligent and fraudulent misrepresentations of the defendant actioned on 3 November 2017 and ceased on 7 November 2017 with the deliberate intent of causing an 'accidental demise' from an overdose of a prescribed drug.

10. An order sought by the defendant leave be granted to issue a subpoena to Dr Charles Su [Northern Local Health District] in response to a less than appropriate medical diagnosis made on 28 November 2019; false administration of psychiatric medications on the defendant, wrongful admission, false and negligent misrepresentations of the defendant's clinical manifestations, undue influences and unconscionable dealings actioned against the defendant amounting to criminal conduct.

11. The defendant seek the order be granted leave to issue a subpoena to Julie Herrick to be cross examined as to the reasons to have misrepresented the defendant to be of psychiatric in nature and confirm and clarify her reasons as to why the defendant was placed in a Framework designed for practitioners with deficits in their practice arising from psychiatric impairments in 2014 under her direct employment as nurse unit manager of the Royal Hospital for Women Recovery Department under the First Plaintiff.

12. The defendant seek the order be granted leave to issue subpoenas to Violet Stojkova, Monica Pecker, Chloe Ellis and Camille Faunt in the matters complained about in response to protracting the cases from conflicting and dubious validity on representations made for the First and Second Plaintiffs' commenced October 2017, including breaches of Privacy under Privacy Act 1998 and breaches under the National Privacy Principles and Australian Privacy Principles.

13. The defendant seek the order leave be granted to issue subpoena to the Proper Officer of the Nursing and Midwifery Board of Australia to assist on cross examination and a leave to issue a subpoena for production of materials in respect to what information was relied upon to have placed the unreasonable conditions on the defendant's nursing registration nationally on 21 September 2015 and furthermore; what information was relied upon to suspend the defendant's nursing registration on 13-25 July 2017.”

    24. I was well satisfied that justice could simply not permit the course which Ms Clarke still wished to pursue. It was apparent that she passionately believes that the claims she has advanced in her various proceedings have merit and ought to have succeeded. Ms Clarke also considers that she has never acted vexatiously, nor has she intended to abuse any court process despite the course she has pursued, even in these proceedings.

    25. Ms Clarke’s beliefs could not in these proceedings justify her being permitted to re-litigate the merits of her various unsuccessful claims by granting her leave to issue the subpoenas which she wished to pursue. That course was simply irrelevant to what arose to be decided on the application.

    26. Ms Clarke next sought to call oral evidence from another group of people who she had not dealt with in her motion, only one of whom she claimed to have made any arrangements with, to give oral evidence at the hearing. Those she wished to call included not only treating medical practitioners and those who had given reports about her, but practitioners against whom she has commenced proceedings for alleged medical negligence.

    27. To grant her this leave would also have necessitated an adjournment of the hearing and so was also opposed and refused.

    28. Ms Clarke had given no prior notice or explanation of the purpose for which she wished to call evidence from these people, or how their evidence could advance her case. Nor did her submissions establish that their evidence was relevant to what arose to be decided.

    29. Ms Clarke undoubtedly faced challenges, appearing as she did unrepresented, although she has had legal assistance in the past, including by way of pro bono assistance. But still the Court has to make orders for the orderly conduct of the proceedings in accordance with the requirements of the Civil Procedure Act2005 (NSW), which by s 56 specifies the overriding purpose to which the Court must give effect to be the just, quick and cheap resolution of the real issues in the proceedings. The Court also has to act in accordance with the dictates of justice, taking into account the matters specified in s 58(2) and bearing in mind the objects of case management specified in s 57.

    30. Harrison J’s orders sought to ensure that these proceedings were not conducted by any party by ambush or surprise. Thus the parties were ordered to file and serve the evidence on which they wished to rely, before the hearing. Ms Clarke had not given any notice as to what evidence she expected this further group of people could give, nor did she establish that they could give any relevant evidence.

    31. Ms Clarke’s submissions confirmed that justice simply could not permit such late leave to lead oral evidence from this further group of people to be granted, notwithstanding the difficulties which she described that her pursuit of various litigation had given rise to, including the serious ill health which she claims she has suffered.

The issues

32. What was not in issue included that:

1. Ms Clarke was trained as a nurse in South Africa, registered as a nurse in Australia in 2003 and then worked as a nurse at hospitals in Sydney, including at the Royal Hospital for Women, where her employment was terminated in 2015.

2. The result of complaints made about Ms Clarke eventuated in the imposition of conditions on her registration under the Health Practitioner Regulation National Law2009 (NSW). Ms Clarke was required to undergo a health assessment with the eventual result that she has been prevented from working as a registered nurse, a matter of ongoing complaint, including in these proceedings.

3. Ms Clarke’s appeal against the imposition of such conditions and requirements was dismissed: Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163. There was no appeal from that decision, but in 2020 Ms Clarke lodged an application for extension of time. She also later pursued other applications in relation to her registration, including finally by the orders sought in her October 2020 motion in these proceedings, by which she sought to have this decision reviewed.

4. As at March 2020 the condition that Ms Clarke not practise remained in place: Clarke v Nursing and Midwifery Council of New South Wales [2020] NSWCATOD 58 at [12]. In those proceedings she had also sought to have the 2017 decision reviewed, but that application was found to be misconceived and thus summarily dismissed, the 2017 judgment being a final decision not affected by jurisdictional error: at [57]-[62].

5. Ms Clarke has a lengthy history of other litigation relating to her former employment in proceedings she has brought, as well as those brought on her behalf by the New South Wales Nurses and Midwives' Association, including before the New South Wales Industrial Relations Commission and the Fair Work Commission.

6. Ms Clarke has brought proceedings arising out of her employment and nursing registration against the Local Health District, its employees and solicitors and the Council and others in the Civil and Administrative Tribunal, the Local Court, the District Court, this Court, the Court of Appeal, the High Court, the Federal Circuit Court, the Federal Court, the Australian Human Rights Commission and the Anti-Discrimination Board. Some of these proceedings are still on foot.

7. In 2016 and again recently, Ms Clarke has also pursued reports she has made to ICAC about various alleged misconduct, which it appears ICAC has not acted on. She has also pursued various complaints to other bodies.

33. In issue between the parties was whether the Local Health District and Council had met the onus which fell upon them under the Act to make out their case that:

1. Ms Clarke has frequently instituted or conducted proceedings in Australia: s 8(1);

2. those proceedings were vexatious: s 6;

3. the Court should exercise its discretion under s 8(7) to:

1. stay all or part of the proceedings in New South Wales which Ms Clarke has already instituted;

2. prohibit Ms Clarke from instituting further proceedings in New South Wales.

34. What lies in issue must be resolved in light of the purpose of the legislative scheme discussed in Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [56] to be to give the Court the power to make orders "to shield other litigants from harassment and to protect the Court itself from the expense, burden and inconvenience of baseless and repetitious suits”.

The parties’ cases

35. The Health Service and Council relied on the affidavit evidence of Ms Faunt to establish the nature, frequency and multiplicity of proceedings which Ms Clarke has brought; the common parties to those proceedings; their form and subject matter; and the relevant findings and views of the judicial and other officers who determined those proceedings, to establish that they were vexatious proceedings as defined in s 6 of the Act.

36. They contended that given the failure of the majority of the multiple proceedings which Ms Clarke has instituted against the same parties out of similar facts; the serious assertions of impropriety and misconduct which she so unsuccessfully pursued; and her persistence in seeking to reopen orders and re-agitate matters decided, it would be concluded that the evidence established:

• abuse of process;

• that Ms Clarke had instituted proceedings which had harassed, annoyed and caused detriment; and

• that she had pursued such proceedings without reasonable grounds.

37. Ms Clarke relied on her affidavits and voluminous documents to advance her case that she had never sought to be vexatious, but had sought only to exercise her rights, as she was entitled to do. Further, that she had suffered a psychological injury in 2015 as the result of the “foul and discriminatory” conduct of the Area Health District and the Council, which had been exacerbated by the actions of the Area Health District and its employees. As a result she was hospitalised for a period in 2019.

38. By her first written submissions Ms Clarke raised 85 questions which she said had not been answered in the proceedings she had brought. They began with questions about why she had been denied a return to her pre-injury duties in December 2014; about the operation of the Workplace Injury Management and Workers Compensation Act 1988 (NSW); and the Health Service’s alleged failures to implement its own policies in relation to safe practice and to investigate her bullying and harassment claims.

39. Ms Clarke also raised questions regarding the alleged conduct of various of the Health Service’s employees; how certain proceedings were conducted; what was said by various identified persons; how a deed had come to be executed; the motive for various actions taken by the Health Service; the state of her employment records; various arguments she had advanced in various proceedings; documents which had been provided in answer to various subpoenas; information on which the Council had acted; the transparency and fairness of various processes; and the impact of decisions made upon her health.

40. Ms Clarke’s second written submission took the form of a defence which commented on the affidavit Ms Faunt had sworn and the documents annexed. Amongst other things Ms Clarke submitted that because she had commenced proceedings against Ms Faunt, she was in breach of her ethical and professional obligations in acting for the Health District and Council in these proceedings, with the result that these proceedings should be dismissed with a costs order in her favour.

41. Ms Clarke also gave an outline of her training, education, work experience and how various employment came to be terminated and the “foul and discriminatory conduct” which she had been subjected to, which had resulted in proceedings which she had brought in the Federal jurisdiction, amongst other things for breaches of privacy, human rights, the Racial Discrimination Act1975 (Cth), the Disability Discrimination Act1992 (Cth), the Health Practitioners Regulation National Law and the Crimes (Domestic and Personal Violence) Act2007 (NSW).

42. Ms Clarke also explained that she had commenced multiple proceedings because in the day to day conduct of certain proceedings she had pursued between August 2016 and May 2019 she had found fraudulent conduct, misconduct and deceptive conduct.

43. Ms Clarke also referred to various alleged criminal conduct and attempts to pervert the course of justice which she said she had pursued in a statement of claim filed in June 2020. She submitted that the multiple proceedings she had commenced and appeals she had pursued could not be deemed frivolous or vexatious, even though she had articulated “no new story” in the matters she had so pursued.

44. Ms Clarke also explained the medical negligence claims she had instituted as the result of a wrong diagnosis and claimed incarceration, at a time when she was suffering a neurological deficit.

45. Ms Clarke also complained about delays in prosecuting these proceedings, which she claimed had been designed to embarrass or frustrate her and involved a breach of the Solicitors Conduct Rules 2015 (NSW).

46. Ms Clarke made various observations about developments in proceedings she had brought, to support the orders sought in her motion in relation to the decisions which she seeks to challenge and claims which she wished to advance in other proceedings on foot, which are unnecessary to explain.

47. Ms Clarke’s case was that because she had received pro bono assistance in some of her District Court proceedings, they could not be found to have been vexatious. She also relied on various treatments she had claimed to have received to resist the making of the orders sought.

48. From paragraph 64 of these submissions, Ms Clarke outlined “quantum’s” which she claimed she was owed by the Area Health Service, which shed some light on the claims she has to date unsuccessfully pursued. In short summary they related to alleged bullying, harassment and assault in 2013 and 2014; for the discriminatory actions of Ms Dale; for claimed “foul and discriminatory conduct” between August and October 2015; for breaches of her employment contract in 2015; for the effect of allegations of incompetency on her employment by third parties in 2015; for negligence of the Health Service’s employees amounting to criminal conduct between 2013 and September 2015; for loss of salary for claimed breaches of industrial instruments between 2014 and 2015; for unconscionable dealings and interference with witnesses in August 2007; for breach of contract; for breach of the State Records Act1998 (NSW) between April 2003 and October 2008 and October 2011 and May 2015; for the use of fraudulent materials in proceedings in the Industrial Relations Commission in 2015; in respect of unconscionable dealing, undue influence, fraudulent and negligent representation in relation to a deed of release signed by Health Service employees; in respect of a strike pay dispute; in respect of a dispute not subject to conciliation under the Industrial Relations Act1996 (NSW), because it has been dismissed by the Industrial Relations Commission; for negligence amounting to criminal conduct, by denying her earning any remuneration in her area of expertise; for a third breach of contract in October 2015; for issues flowing from the denial of the opportunity to complete her Masters in Public Health; for breach of privacy in August 2014; for accessing her bank account details in September 2015 without consent; for accessing her tax file details without consent and falsifying her 2015-2016 tax return; for fallacious statements made in proceedings in the Fair Work Commission in September 2016; and for unfounded and fraudulent statements made in allegations advanced in mandatory notifications made under the Health Practitioners Regulation National Law.

49. From paragraph 89 Ms Clarke claimed that the Council also owed her a “quantum”. In summary this was for procedural unfairness in relation to mandatory notifications made under the Health Practitioner Regulation National Law; for breach of the requirement that complainants be dealt with expeditiously; for breach of the courses of action available to the Council under s 145B of this legislative scheme; for how she was denied the opportunity to attend a performance assessment in December 2015, with the assessment then delayed until January 2017, with adverse consequences for her return to her occupation; in respect of discovery of documents; for breach of subpoenas issued in the District Court; for expunging statements from the National Register in 2017; under various identified provisions of the Health Practitioners Regulation National Law; for unconscionable dealing, undue influence and fraudulent misrepresentation in respect of her registration; for events on 22 May 2018 when the Council had a typed out document for her to sign, which was invalid, because she was mistaken about what she was signing; for breaches of applicable privacy legislation in March 2019; for specified breaches of the Crimes Act 1900 (NSW) and the State Records Act; and for negligence.

50. In her final oral and written submissions Ms Clarke reiterated many of these submissions in considerable further detail.

51. In her December 2020 submissions Ms Clarke submitted that matters raised by way of Ms Faunt’s affidavits were irrelevant and involved misconduct, relying on Guss v Law Institute of Victoria Ltd [2006] VSCA 88; that contrary to the requirements of r 35.3 of the Uniform Civil Procedure Rules (2005) NSW, Ms Faunt did not have the necessary knowledge of the matters about which she deposed; that the affidavit was defective and irrelevant and contained false statements, with the result that Ms Faunt’s affidavit should be rejected; and that the initiating summons was invalid.

52. Ms Clarke also referred to directions given by Harrison J about the filing and service of evidence and complained about delay in the prosecution of the proceedings. She submitted that in the result, the proceedings should be dismissed on grounds of lack and denial of efficient use of available judicial and administrative resources, that being what the dictates of justice required in the circumstances, given ss 57 and 58 of the Civil Procedure Act.

53. In the result Ms Clarke submitted that the plaintiffs had failed to establish that she was a frivolous and vexatious litigant and were not entitled to the orders sought.

54. But Ms Clarke accepted that after her dismissal from her employment she had pursued multiple proceedings and that:

“49) There is no “new story” articulated by the defendant in any jurisdiction, the matter/s are the same with time line of events that differ, employees having a similar thread to the base of the organisations culture problem, notwithstanding the parameters lie within the First Plaintiff's network; and there is no causation of prejudice brought against the First and Second Plaintiff and any of its employees given the defendant suffered poverty and financial depreciations, including skill loss, alienation from her area of expertise repeatedly over the years in accordance to timeline of events, personal injury undiagnosed and wrongful including misdiagnoses from a medical perspective, such to say the First and Second Plaintiff concerted with each other in the attempt to cause a psychiatric injury.

50) The attempt to have “paralysed” the defendant from negligent actions of the respondents and their clients have failed hopelessly, under the Health Practitioner Regulations National Law 86 a (sic) and its provisions therein commencing strenuously in February 2017, and furthermore, to concert with statutory bodies to amplify the fear and apprehensions on the defendant from the repeated requests for the defendant to attend psychiatric health assessments.”

55. In these submissions Ms Clarke again explained the “quantums” which she claimed the Health District, Council and others owed her. In conclusion she submitted:

“1. The defendant verily states that she has not frequently instituted proceedings and or conducted Vexatious Proceedings in Australia and denies manipulating any system for any financial gain.

2. The defendant denies acting in concert with any person subject to a vexatious proceeding order or acting with any person instituted or conducted vexatious proceedings in Australia.

3. The defendant verily states and denies any motive in filing any and all claims against the plaintiffs and their employees to harass and or control the parties.

4. It brings no joy for the defendant to argue her claims based on facts and real issues within judicial forums being a self-litigant and unable to maintain proper representations in the matter/s complained about.”

56. The Health District and Council’s position was while they proceeded on the amended summons filed in March 2020, it was the confined November 2020 draft orders which they pressed. Neither that nor the matters raised by Ms Clarke legitimately put in question the validity of the summons or the competency of the proceedings and that the evidence and Ms Clarke’s conduct in these proceedings will established their case.

57. In a written response, to which the Health District and Council did not object, Ms Clarke in short reiterated her claims about the injuries and damages which the Health District and Council had caused her; her intention to pursue the orders she had sought in her cross summons and motion in relation to other proceedings by an amended cross summons; the various complaints which she had unsuccessfully pursued in such proceedings; and the submissions she had earlier made, including about Ms Faunt and the conduct of the proceedings, which on her case had been knowingly and wrongfully brought against her.

Has Ms Clarke frequently instituted or conducted vexatious proceedings?

58. I am satisfied that Ms Clarke’s complaints about the initiation and pursuit of these proceedings and Ms Faunt’s evidence have no proper basis. Further, that the evidence, as well as the case which Ms Clarke herself advanced, well establish that she has frequently instituted and conducted vexatious proceedings, as that term is defined in s 6 of the Vexatious Proceedings Act.

59. In fact, Ms Clarke’s conduct in these proceedings establishes that she is intent on pursuing that course.

The statutory scheme

60. Under s 8 of the Vexatious Proceedings Act the Court is empowered to make a vexatious proceedings order if satisfied on the evidence that the person in question “has frequently instituted or conducted vexatious proceedings in Australia”. The terms “institute” and “proceedings” are widely defined in s 4, capturing the proceedings which Ms Clarke has brought in the various Courts and Tribunals in which she has pursued in her many complaints:

“institute, in relation to proceedings, includes:

(a) for civil proceedings—the taking of a step or the making of an application that may be necessary before proceedings can be started against or in relation to a party, and

(b) for proceedings before a tribunal—the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal, and

(c) for criminal proceedings—the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender, and

(d) for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.”

“proceedings includes:

(a) any civil proceedings, criminal proceedings or proceedings before a tribunal, and

(b) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and

(c) any proceedings taken in connection with or incidental to proceedings pending before a court or tribunal, and

(d) any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings, criminal proceedings or proceedings before a tribunal, and

(e) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way.”

61. A reference to “instituting proceedings” also includes a reference to instituting proceedings generally, in relation to a particular matter, against or in relation to a particular person and in a particular court or tribunal: s 5(2). On the evidence the proceedings relied on were instituted by Ms Clarke, although some applications were brought by the defendants.

62. The term “frequently” is not defined, but it is a relative term: Jones v Cusack [1992] HCA 40; (1992) 109 ALR 313 at [14] discussed in Teoh at [46]-[48]. On the evidence I will discuss, there can simply be no question that Ms Clarke has frequently instituted proceedings in which, as she herself explained, she articulated no new story, but without success.

61. “Vexatious proceedings” are defined in s 6 of the Vexatious Proceedings Act to include:

“(a) proceedings that are an abuse of the process of a court or tribunal, and

(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and

(c) proceedings instituted or pursued without reasonable ground, and

(d) proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings.”

64. A pattern of repeated applications within a limited period of time may be an important consideration in determining whether proceedings are vexatious, “particularly where a litigant repeatedly challenges a decision in a manner that demonstrates an unwillingness or inability to accept that the challenge has been rejected and that there are no grounds for further challenges”: Teoh at [49]. That has been established by the course Ms Clarke has pursued over time, including by the cross summons and motions she is intent on pursuing in these proceedings.

65. The views of the judicial officers who resolved the proceedings may be taken into account in determining whether the definition is satisfied, but they will not be determinative: Teoh at [50] and [52]. Further, proceedings can involve an abuse of process, regardless of whether the person instituting or conducting them intends to abuse the court's process. Vexatious proceedings can also be instituted or pursued without reasonable ground, regardless of whether the party realises that they lack any reasonable basis: Teoh at [55].

66. That is the situation which has been established in Ms Clarke’s case. Her repeated submission that she did not intend to pursue vexatious proceedings, despite having pursued no new story in what she has so variously and repeatedly advanced, does not preclude the conclusion that what she did has resulted in her pursuit of proceedings which involved an abuse of process, caused repeated detriment to named defendants and were instituted and/or pursued without reasonable grounds.

67. The evidence well establishes how repeatedly and frequently Ms Clarke has unsuccessfully pursued her beliefs in the proceedings she has brought regarding her various claimed mistreatment and the other misconduct which she has repeatedly alleged against others with whom she has worked, the Health District, the Council and others. Despite all the proceedings she has pursued, Ms Clarke has never yet established any of her claims on their merits.

68. Despite this lack of success and the pursuit of these proceedings against her, the evidence establishes that yet again in late 2020 Ms Clarke commenced even further proceedings in the District Court in which she seeks to pursue the same or similar claims against the Health Service and its employees, which she has failed to establish in earlier cases. Even in these proceedings, she seeks to revisit much of her unsuccessful litigation by way of her cross summons and motions.

69. I am thus well satisfied that there can be no question that Ms Clarke has frequently instituted and conducted vexatious proceedings in Australia. The Court’s power to make the orders sought is thus enlivened and must be exercised.

70. It is also well apparent from the course which Ms Clarke has pursued to this point and the case which she advanced in these proceedings at the directions hearing in February 2021 and the motion which she later filed, that unless made the subject of the orders sought, she will not be deterred from her relentless pursuit of her beliefs, by the vexatious proceedings she is intent on pursuing.

The proceedings pursued for or by Ms Clarke

71. These conclusions rest on the evidence of the litigious course which Ms Clarke has unsuccessfully pursued directly and earlier with the support of her union, which is in summary as follows.

2008

South Eastern Sydney Illawarra Area Health Service

Industrial Relations Commission 427/2008

72. In 2008 after Ms Clarke was dismissed from her employment at the Prince of Wales Hospital after a dispute with other staff, the Nurses Association brought proceedings under s 84 of the Industrial Relations Act, claiming that Ms Clarke had been unfairly dismissed. The termination of her employment had followed a decision that she had wilfully and fraudulently falsified and submitted a witness statement, considered to be a breach of the applicable Code of Conduct.

73. The application was dismissed: Sharmain Naicker and NSW Health Service - Government of New South Wales for South Eastern Sydney Illawarra Area Health Service [2008] NSWIRComm 1104.

2014 – 2015

South Eastern Sydney Local Health District

Industrial Relations Commission 927/2014 and 318/2015

74. In 2014 the Nurses Association notified a dispute under the Industrial Relations Act in relation to Ms Clarke’s employment at the Royal Hospital for Women about a performance appraisal and complaint about bullying. These proceedings were discontinued.

75. In May 2015 the Association brought unfair dismissal proceedings under s 84 of the Industrial Relations Act, claiming that Ms Clarke had been unfairly dismissed from her employment at the Royal Hospital for Women. A notice of discontinuance was filed after the Association reported to Commissioner Newall that a binding settlement had been arrived at, but that Ms Clarke refused to sign the deed which reflected that agreement.

76. Since then Ms Clarke has herself pursued numerous claims in relation to her treatment at work before her employment was terminated, which was the subject of the 2014 and 2015 proceedings and the steps which followed, which she claimed had adversely impacted her registration and ability to work as a nurse. She has also pursued complaints about the deed.

2016

South Eastern Sydney Local Health District

Fair Work Commission 2016/4065

Anti-Discrimination Board

77. In 2016 Ms Clarke commenced proceedings in the Fair Work Commission about the termination of her employment with the Royal Hospital for Women, seeking an extension of time to bring the proceedings. That application was refused: Naicker v South Eastern Sydney Local Health District t/as Royal Hospital for Women [2016] FWC 5697.

78. Ms Clarke also made complaints alleging discrimination in her former employment to the Anti-Discrimination Board in 2016, on grounds relating to racism, victimisation, age, disability and domestic status, vilification and victimisation, being bullied and harassed and denied entitlement of her salary, with the result that she had suffered considerable loss.

79. Her disability discrimination complaint was investigated, but declined on the grounds that it lacked substance.

Ms Dale, Ms Herrick and Ms King

District Court - 2016/245332 and 2017/350767

80. In 2016 Ms Clarke brought proceedings in the District Court against Ms Dale and Ms King, who were also employed at the Royal Hospital for Women, advancing claims for damages in relation to alleged harassment, vilification, defamation, coercion, corruption and refusal to comply with workers compensation. In 2017 she also brought proceedings against Ms Herrick.

81. In Clarke (previously Naicker) v Herrick [2017] NSWDC 302, Gibbs DCJ made various orders, including an order dismissing Ms Clarke’s application to amend her Amended Statement of Claim to replace the current three named defendants with the name “Vanessa Madunic”.

82. In August 2018 Balla DCJ made consent orders removing Ms Herrick and Ms King as defendants.

83. In an unreported judgment of 7 June 2019 Levy SC DCJ noted that he had stood the hearing of a strike out motion over, to permit a referral for pro bono legal assistance to be dealt with. A mediator had later reported that Ms Clarke had declined to co-operate and the defendants had pressed for the hearing of their motion to proceed. Ms Clarke then sought and his Honour accepted that he should recuse himself from further hearing the motion.

84. Ms Clarke was given leave instanter on 19 September 2019 to file a second further amended statement of claim in the Dale proceedings. That day Gibbs DCJ dismissed the defendants’ strike out motion, they having claimed that the statements of claim disclosed no reasonable cause of action by reason of the operation of the Workplace Injury Management and Workers Compensation Act.

85. The hearing of the two cases proceeded before Robison DCJ in November 2019, until his Honour recused himself on his own motion: Clarke v Dale and Herrick (District Court (NSW) 25 November 2019, unrep). They were finally heard in August 2020 by Curtis ADCJ.

86. Curtis ADCJ then dismissed both cases, preferring the evidence of Ms Dale and Ms Herrick over that of Ms Clarke: Clarke v Dale (District Court (NSW), 8 October 2020, unrep) and Clarke v Herrick (District Court (NSW), 8 October 2020 unrep).

87. Ms Clarke has sought leave to appeal the Herrick decision and at the time of the hearing had not yet served an application for leave to appeal the Dale decision.

2017

South Eastern Sydney Local Health District

Civil and Administrative Tribunal - 2017/25027

NSW Ombudsman

88. In Clarke v South Eastern Sydney Local Health District [2017] NSWCATAD 81 Ms Clarke’s application for leave to proceed with her disability discrimination complaint was refused. Her complaint was put at its highest, but the Tribunal concluded that the material she relied on did not provide evidence of disability or presumed disability as being the reason for her claimed less favourable treatment, that is being subjected to performance assessment and having her employment terminated by her employer.

89. It was concluded that Ms Clarke had not put forward a case addressing the elements of a disability discrimination complaint and thus the Tribunal was not satisfied that it was fair and just in all of the circumstances, for her complaint to proceed: at [41]-[43].

90. In 2017 Ms Clarke complained to the NSW Ombudsman about the Nursing and Midwifery Council of NSW requesting an assessment of her Certificate of Registration whilst a matter was before the NSW Anti-Discrimination Board. Ms Clarke was advised that the Ombudsman will not usually intervene in matters where there is an alternative and satisfactory means of redress and advised her that in regard to refusal of registration or a set conditions of registration a right of appeal existed via the NSW Civil and Administrative Tribunal.

Ms Herrick and South Eastern Sydney Local Health District

Supreme Court - 2017/101668

Court of Appeal - 2018/241478 and 2019/273230

Legal Services Commissioner and the Australian Human Rights Commission

91. Ms Clarke commenced proceedings in this Court in 2017 which were dismissed by Adamson J: Clarke v South East Sydney Local Health District [2018] NSWSC 66. She there claimed that she had been discriminated against by her employer and Ms Herrick; that they had breached the Government Sector Employment Act 2013 (NSW) and the Government Sector Employment Rules 2014 (NSW) and “violated” the Administrative Decisions (Judicial Review) Act1977 (Cth), by breaching the rules of natural justice, engaging in fraudulent conduct and making a decision without evidence; and that she had suffered “intense variations in mental health conditions including symptoms of dissociations and a nervous shock” as a result of the IRC proceedings, which had not, in fact, been resolved: at [16].

92. Adamson J concluded that Ms Clarke’s proposed draft pleading was bad in form and did not identify any tenable cause of action in respect of which the Court had jurisdiction: at [17]. In Clarke v South East Sydney Local Health District (No 2) [2018] NSWSC 357 her Honour made a costs order against Ms Clarke.

93. Adamson J’s decision was overturned on a single ground, with Ms Clarke being granted leave to appeal on the basis that she had been denied procedural fairness because of the omission of several relevant documents at the hearing. The Health Authority conceded the appeal. In the result, consent orders were made and the matter remitted for further hearing: Sharmain Daisy Clarke v South East Sydney Health District (No 2) [2018] NSWCA 226.

94. In August 2019 Bellew J again dismissed the proceedings, the missing documents having been tendered: Clarke v South Eastern Sydney Local Health District (No 3) [2019] NSWSC 1075 at [22]. His Honour concluded that no reasonable cause of action had been made out.

95. In February 2020 an appeal from that decision failed: Clarke v South Eastern Sydney Local Health District [2020] NSWCA 8. Ms Clarke later made an application to the High Court for special leave to appeal.

2018

South Eastern Sydney Local Health District

Local Court

Australian Human Rights Commission

96. In 2018 Ms Clarke unsuccessfully sought to have Court Attendance Notices issued in the Local Court and unsuccessfully made complaints about her treatment by the Health District to the Australian Human Rights Commission.

Nursing and Midwifery Council of New South Wales

District Court - 2018/113261

97. In these proceedings Ms Clarke claimed damages for alleged defamation, professional negligence and malice. In Clarke v Nursing and Midwifery Council of New South Wales [2018] NSWDC 337 Gibson DCJ granted Ms Clarke leave to amend her claim, with a costs thrown away order.

98. In Clarke v Nursing and Midwifery Council of New South Wales (No. 2) [2019] NSWDC 531 Ms Clarke’s reply was struck out and she was given leave to amend, with an order that she pay the Council’s costs. Her Honour also dismissed a motion seeking an order that Hicksons “recuse themselves” in the proceedings: Clarke v Nursing and Midwifery Council of New South Wales (No 3) [2019] NSWDC 532.

99. In Clarke v Nursing and Midwifery Council of New South Wales (No. 4) [2019] NSWDC 659 Gibson CCJ struck out the amended reply and gave the Council leave to administer interrogatories.

100. The proceedings were due to be heard in March 2020 but were vacated and had not been heard at the time of the hearing.

South Eastern Sydney Local Health District and Nursing and Midwifery Council

District Court - 2018/120717

101. Ms Clarke commenced District Court proceedings in April 2018 claiming damages for alleged bullying and harassment, assaults, racial slurs, gossiping, victimisation, intimidation and management’s inability to manage the perpetrators. She referred to alleged conduct of Ms Dale, Ms King, Ms Herrick and others, as well as actions allegedly taken by the Council, including its failure to fairly hear her case, causing her psychological injury and resulting in her being misrepresented by a legal practitioner, which had resulted in her making complaints to the Office of the Legal Services Commissioner and commencing proceedings in the Local Court, amongst other claimed adverse consequences.

102. These proceedings were discontinued by consent in November 2019, after an amended statement of claim was filed in September 2018.

Ms Fenn

District Court - 2018/277318

103. In 2018 Ms Clarke brought proceedings in the District Court in slander against Ms Fenn, the Acting Director of Nursing, Gynaecological Services at the Royal Hospital for Women in 2015, about her telephone communication with the Council as part of its investigation of a complaint about Ms Clarke, pursued by way of an Australian Health Practitioner Regulation Agency Notification, when information was sought by the Council about the complaint.

104. In Clarke v Fenn [2018] NSWDC 336 Gibson DCJ ordered that the proceedings be struck out and dismissed, Ms Clarke’s application for an extension of time to bring the proceedings having failed. Her Honour concluded that Ms Fenn’s role was analogous to that of a witness in quasi-judicial proceedings and, as such, protected both under the principles of immunity from suit at common law and under s 27 of the Defamation Act 2005 (NSW), as well as being protected by absolute privilege: at [37]-[38].

105. In Clarke v Fenn(No 2) [2018] NSWDC 417 Ms Clarke was ordered to pay costs for those proceedings.

South Eastern Sydney Local Health District, Madunic, Marr, Herrick and Fenn

Federal Circuit Court – SYG1333/2018

106. Ms Madunic and Mr Marr were also employed at the Royal Hospital for Women during Ms Clarke’s employment. Ms Clarke brought these proceedings in the Federal Circuit Court in May 2018, claiming orders in relation to bullying, harassment, victimisation and fraudulent conduct and a failure to allow her to return to pre-injury duties, amongst many other claims.

107. They were adjourned pending determination of other proceedings which Ms Clarke had brought in the Federal Court and were later dismissed by Street J in November 2019.

2019

Ms Herrick and the South Eastern Sydney Local Health District

District Court - 2019/134260

Court of Appeal 2019/314474

108. Ms Clarke brought these District Court proceedings in defamation, complaining about statements published in affidavits filed in Supreme Court proceedings that she had suffered from anxiety and depression, amongst other matters. The claim was later amended to refer to a pro forma Workers Compensation Injury Notification form filled out by Ms Herrick in September 2015, in respect of which Ms Clarke had not sought an extension of time.

109. In Clarke v Herrick [2019] NSWDC 533 Gibson DCJ ordered that the proceedings be struck out and dismissed with an order for costs, doubting that the claim was actionable or that Ms Clarke’s ill health had precluded her from dealing with the proceedings, given her ongoing involvement in other litigation. Her Honour concluded that the proceedings had to be summarily dismissed given the expiry of the limitation period: at [10]-[15].

110. Ms Clarke filed a notice of intention to appeal this decision in October 2019. Leave to appeal was refused: Clarke v Herrick [2020] NSWCA 71. It was concluded that Ms Clarke had not demonstrated even arguable error or procedural unfairness: at [25] and [29].

The South Eastern Sydney Local Health District, the Nursing and Midwifery Council and Ms Dale

Federal Court – 166/2019, 167/2019 and 691/2019

111. In February 2019 Ms Clarke also brought proceedings in the Federal Court against the Council, the Health District and Ms Dale, claiming that she had been discriminated against under the Racial Discrimination Act and the Disability Discrimination Act: Clarke v Nursing and Midwifery Council New South Wales [2019] FCA 1782 at [5]. At [12] Flick J concluded that:

• leave to make the application against the Local Health District and the Midwifery Council should have been sought prior to the commencement of those two proceedings;

• assuming that fresh proceedings need not be commenced and that leave to continue those proceedings can now be sought in the present proceedings, leave is to be refused;

• the proceedings against the Local Health District and the Midwifery Council should be dismissed; and

• leave to commence the proceeding against Ms Dale should be refused and that proceeding should also be dismissed.

112. Those conclusions rested on the statutory scheme and the history which Flick J explained. That included the myriad of earlier claims Ms Clarke had unsuccessfully pursued in the Industrial Relations Commission, Fair Work Commission, NCAT, NSW Ombudsman, Office of the Legal Services Commissioner, Office of the Australian Information Commissioner, the District Court, Supreme Court, Court of Appeal and Federal Circuit Court: at [25]-[27]. These were in addition to the history of her complaints to the Human Rights Commission about the Health District, its employees and the Council: at [28]- [44].

113. Flick J also concluded that it was apparent that whether the complaints Ms Clarke had made to the Commission were viewed in isolation or cumulatively, she had attempted to substantially re-agitate complaints in the Federal Court which she had already made to the Commission and other forums and that for reasons given the Commission itself had:

“carefully considered the subject-matter of the complaints made and made an informed decision as to (for example) which complaints should be accepted and which should be terminated – as was the case with respect to the complaint made against Ms Dale and the termination of other complaints;

undertaken a consideration of the other means whereby Ms Clarke has sought to vindicate her claims, including consideration of the subject matter of the complaints made individually against the Local Health District, the Midwifery Council and Ms Dale and the separate means whereby Ms Clarke has sought to vindicate those claims; and made decisions that complaints should be terminated”: at [45]

114. Ms Clarke has sought leave to appeal this decision, but that application has also not yet been heard.

Nursing and Midwifery Council of New South Wales.

District Court – 2018/120717

115. Ms Clarke commenced proceedings in the District Court in April 2019 in relation to a series of publications, including documents filed on the JusticeLink database, such as an affidavit sworn on 5 April 2018, as well as similar publications.

116. Those claims were withdrawn after a foreshadowed application for summary dismissal on the basis of absolute privilege and an amended statement of claim filed in relation to a wholly new matter based on a document published in September 2015, that being a pro forma “Workers Compensation Injury Notification Form” which Ms Herrick had completed.

Nursing and Midwifery Council, Nursing and Midwifery Board, NSW Nursing and Midwifery Association and Stojkova

Federal Circuit Court SYG 3310/2018

117. In November 2019 Ms Clarke brought these proceedings in the Federal Circuit Court claiming aggravated and exemplary damages against the Council for breach of duty of care and professional negligence causing harm and loss; against the Board for fraudulent and misleading conduct; and against Ms Stojkova claiming that she as the principal solicitor at Hicksons Lawyers acting for the Health District in legal proceedings Ms Clarke had commenced, “intentionally and knowingly repeated dishonest conduct to the Supreme and District Courts”: Clarke v Nursing and Midwifery Council of New South Wales & Ors [2019] FCCA 2127.

118. Dowdy J dismissed the proceeding against the Council, the Board and Ms Stojkova, concluding Ms Clarke had no reasonable prospects of successfully prosecuting the proceedings, which were otherwise frivolous, vexatious and an abuse of the Court’s process.

119. The proceedings against the Association were later also dismissed and costs ordered in favour of the other respondents: Clarke v Nursing and Midwifery Council of New South Wales & Ors (No.2) [2019] FCCA 3035.

120. Ms Clarke sought to reopen this hearing before those reasons were published and the orders entered. That application was dismissed in Clarke v Nursing and Midwifery Council of New South Wales & Ors (No.3) [2019] FCCA 3159, she not having advanced anything which inclined Dowdy J to alter the conclusions he had earlier reached: at [7]. In Clarke v Nursing and Midwifery Council of New South Wales & Ors (No.4) [2019] FCCA 3639 costs were ordered in favour of the third respondent.

121. Ms Clarke has appealed these decisions to the Federal Court, but the appeal has not yet been heard.

Stojkova and Hicksons Lawyers - Local Court 2019/285426

122. Ms Stojkova had day to day carriage of various matters involving Ms Clarke between 2016 and 2019.

123. In September 2019 Ms Clarke brought proceedings in the Local Court against Ms Stojkova and Hicksons, complaining about affidavits which Ms Stojkova and others in the employ of Hicksons had sworn, or letters they had written in District Court and Supreme Court proceedings, which she claimed gave rise to identified adverse imputations, which had damaged her. She sought aggravated damages for claimed defamatory statements.

124. The proceedings were struck out under r 14.28 of the Uniform Civil Procedure Rules 2005 in October 2019 as disclosing no reasonable cause of action, having a tendency to cause prejudice, embarrassment or delay and being an abuse of process.

Unnamed defendant

Civil and Administrative Tribunal

125. Ms Clarke brought proceedings for administrative review in 2019, the details of which may not be published as the result of an interlocutory decision given in October 2019, which was heard in August 2020, with the decision reserved at the time of the hearing.

2020

Hicksons Lawyers

District Court -2020/128851

126. Ms Clarke commenced these proceedings in April 2020 seeking damages for alleged breaches of the Legal Profession Act 2004 (NSW) and other misconduct on the part of employed solicitors Ms Pecker, Ms Ellis and Ms Faunt in various matters.

127. The claims have been amended and Hicksons application for summary dismissal has not yet been determined.

The South Eastern Sydney Local Health District.

District Court – 2020/199084

128. Ms Clarke commenced these proceedings in June 2020 seeking damages for the conduct of Ms Herrick, Ms Fenn, Ms Madunic, Mr Marr and Ms King in relation to their various actions in 2014 and 2015 in relation to her employment and registration.

129. The Health District is pursuing orders summarily dismissing this claim.

Nursing and Midwifery Council

Civil and Administrative Tribunal – 2020/32150 and 2020/182258

130. Ms Clarke filed an application seeking orders in relation to matters the subject of the decision in Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163 and alleged non-compliance with conditions of her registration imposed in 2015. She claimed, amongst other things, that the 2017 decision was affected or induced by fraud.

131. The proceedings were dismissed as misconceived, given that the 2017 decision had been overtaken by a 2018 decision of the Impaired Registrants Panel under the National Law, which imposed a condition upon Ms Clarke’s registration requiring her not to practice, which was operative despite a 2020 review of her registration conditions: Clarke v Nursing and Midwifery Council of New South Wales [2020] NSWCATOD 58.

Herrick, King, Dale, Hickman, Finn, Fenn, Wright and South Eastern Sydney Local Health District

Federal Circuit Court - SYG160/2020

132. In January 2020 Ms Clarke commenced further proceedings in the Federal Circuit claiming unlawful termination. After various interlocutory orders they were listed in May for a hearing as to whether orders summarily dismissing the proceedings should be made.

133. On 6 April 2020 Ms Clarke discontinued the proceedings.

Adams Toohey Samuels Arnold and Northern Local Health District

District Court – 2020/294918

134. In these proceedings commenced in October 2020 Ms Clarke seeks damages for medical negligence from treating doctors, as well as from a practitioner who assessed her on referral by the Australian Health Practitioner Regulation Agency, and another who sat on the Impaired Registrants panel and from the Health District, whom she claims wrongly detained her in a mental health unit in 2019.

135. These proceedings are yet to be heard.

Ms Herrick and the South Eastern Sydney Local Health District

High Court – S22/2020

136. Ms Clarke filed an application for special leave to appeal in March 2020 which was dismissed by Nettle J on 18 June.

The orders sought should be made

137. A vexatious proceedings order is never lightly made. “The purpose of the statutory power is not to punish the litigant for past misdeeds. The purpose is to shield other litigants from harassment and to protect the Court itself from the expense, burden and inconvenience of baseless and repetitious suits”: Teoh at [56].

138. The evidence well establishes that the other parties to the vexatious proceedings which Ms Clarke has conducted need to be shielded from her relentless pursuit of her beliefs in the Courts and Tribunals in which she has pursued them.

139. That justice requires that the Court’s discretion be exercised to make those orders, confined appropriately as they finally were, is an inevitable conclusion given:

• Ms Clarke’s repeated, unsuccessful and ongoing pursuit of her claims about:

• how other employees had mistreated her and misconducted themselves in the various ways she has alleged, including by bullying and harassing her, subjecting her to racist and discriminatory treatment and defaming her;

• the way in which her employment was wrongly or unfairly terminated;

• how the conditions imposed on her nursing registration were also the result of mistreatment and misconduct, including racist conduct; and

• how the solicitors acting for the plaintiffs have misconducted themselves in advancing their clients’ cases, when resisting the claims Ms Clarke repeatedly pursued.

• the course of conduct Ms Clarke has continued to pursue and the cases she has advanced notwithstanding the conclusions reached by those who have dismissed or struck out her claims or refused her leave to appeal or review the decisions she has challenged, for the reasons they explained;

• how Ms Clarke herself has made it apparent by the case that she advanced in these proceedings, that she did not accept those conclusions and that unless constrained by the Court’s orders, she will not be deterred from pursing her claims. She is intent on that course even though it has led to the point where it has already been concluded that there have been abuses of process, her claims having been pursued without reasonable grounds and in such a way as to harass and annoy those repeatedly made the subject of her applications;

• that in these proceedings she sought to subpoena those who she has unsuccessfully pursued in her vexatious proceedings, despite having already repeatedly been forced to go to the time, trouble and expense of defending her claims, which have failed for all of the reasons given in the judgments to which I have referred; and

• It is apparent that even the costs orders made in others favour, cannot have not adequately dealt with the consequences of all that Ms Clarke has unsuccessfully pursued and yet remains intent on pursuing against them.

Costs

140. The usual order under the Uniform Civil Procedure Rules is that costs follow the event, which in this case is an order that Ms Clarke bear the Health District and Council’s costs, as agreed or assessed. Unless the parties approach to be heard in respect of costs within 14 days, that will be the Court’s order.

Orders

141. For these reasons I also make orders in the terms sought that:

1. Pursuant to the Vexatious Proceedings Act 2008, s 8(7)(b) the Defendant is prohibited from instituting proceedings in NSW against or relating to: -

1. the South Eastern Sydney Local Health District (and its statutory predecessors and successors), its staff, consultants, executive officers and agents in relation to any matter arising from the Defendant's employment;

2. the Nursing and Midwifery Council of New South Wales and the Health Professional Councils Authority, their staff, consultants, executive officers and agents, in relation to any matter arising from the Defendant’s professional practice (except with the consent of the Nursing and Midwifery Council);

3. the subject matter of proceedings brought in the following proceedings:

Tribunals

1. Sharmain Naicker and NSW Health Service - Government of New South Wales for South Eastern Sydney Illawarra Area Health Service - Matter No. IRC 427 of 2008.

2. Sharmain Naicker and South Eastern Sydney Local Health District - Matter No. IRC 927 of 2014.

3. Sharmain Naicker and South Eastern Sydney Local Health District - Matter No. IRC 318 of 2015.

4. Fair Work Commission Proceedings No: 2016/4065 - Sharmain Naicker v South Eastern Sydney Local Health District t/as Royal Hospital for Women.

5. Civil and Administrative Tribunal of New South Wales File No: 2017/25026 - Sharmain Clarke v South Eastern Sydney Local Health District.

6. Civil and Administrative Tribunal of New South Wales File No 2020/32150 - Sharmain Daisy Clarke v Nursing and Midwifery Council of New South Wales.

7. Civil and Administrative Tribunal of New South Wales File No: 2019/00126124 (subject to restriction pursuant to s 64 (1) of the Civil and Administrative Tribunal Act (NSW) 2013 that the name of the applicant is not to be published).

Local Court of New South Wales

8. Local Court Case No: 2019/285426 - Sharmain Daisy Clarke v Violet Stojkova and Hicksons Lawyers.

District Court of New South Wales

9. District Court Case No: 2016/245332 - Sharmain Daisy Clarke v Susan Dale.

10. District Court Case No: 2017/350767 - Sharmain Daisy Clarke v Julie Herrick.

11. District Court Case No: 2018/113261 - Sharmain Daisy Clarke v Nursing and Midwifery Council of New South Wales.

12. District Court Case No: 2018/120717 - Sharmain Daisy Clarke v South Eastern Sydney Local Health District and Nursing and Midwifery Council of New South Wales.

13. District Court Case No: 2018/277318 - Sharmain Daisy Clarke v Maria Fenn.

14. District Court Case No: 2019/134260 - Sharmain Daisy Clarke v Julie Herrick and South Eastern Sydney Local Health District.

15. District Court Case No: 2020/128851 - Sharmain Daisy Clarke v Hicksons Lawyers.

16. District Court Case No: 2020/199084 - Sharmain Daisy Clarke v South Eastern Sydney Local Health District.

Supreme Court of New South Wales

17. Supreme Court Case No: 2017/101668 - Sharmain Daisy Clarke v South Eastern Sydney Local Health District and Julie Herrick.

Federal Circuit Court

18. Federal Circuit Court proceedings SYG1333/2018 - Sharmain Daisy Clarke v South Eastern Sydney Local Health District, Vanessa Madunic, Gerry Marr, Julie Herrick, and Maria Fenn.

19. Federal Circuit Court proceedings SYG3310/2018 - Sharmain Daisy Clarke v Nursing and Midwifery Council of New South Wales, Nursing and Midwifery Board, New South Wales Nurses and Midwives Association and Violet Stojkova.

20. Federal Circuit Court Case number SYG160/2020 - Sharmain Daisy Clarke v Julie Herrick, Virginia King, Susan, Dale, Bronwyn Hickman, Lesley Finn, Maria Fenn, Annette Wright and South Eastern Sydney Local Health District (incorrectly sued as Royal Hospital for Women).

Federal Court of Australia

21. Federal Court Case No: NSD166/2019 - Sharmain Daisy Clarke v Nursing and Midwifery Council of New South Wales.

22. Federal Court Case No: NSD167/2019 - Sharmain Daisy Clarke v South Eastern Sydney Local Health District.

23. Federal Court Case No: NSD691/2019 - Sharmain Daisy Clarke v Susan Dale.

24. Federal Court Case No: NSD1295/2019 - Sharmain Daisy Clarke v Nursing and Midwifery Council of New South Wales, Nursing and Midwifery Board, New South Wales Nurses and Midwives Association and Violet Stojkova.

25. Federal Court Case No: NSD34/2020 - Sharmain Daisy Clarke v Nursing and Midwifery Council of New South Wales, Nursing and Midwifery Board, NSWNMA and Violet Stojkova.

26. Federal Court Case No: NSD1880/2019 - Sharmain Daisy Clarke v South Eastern Sydney Local Health District.

27. Federal Court Case No: NSD1881/2019 - Sharmain Daisy Clarke v Nursing and Midwifery Council of New South Wales.

28. Federal Court Case No: NSD1882/2019 - Sharmain Daisy Clarke v Susan Dale.

2. Pursuant to the Vexatious Proceedings Act 2008, s 8(7)(a) the following District Court of NSW proceedings are stayed:

1. Sharmain Daisy Clarke v Hicksons Lawyers (2020/128851); and

2. Sharmain Daisy Clarke v Dr Adams & Ors (2020/294918) insofar as those proceedings concern Anthony Samuels and Karen Arnold.

**********

Amendments

09 February 2021 - Formatting amended

Decision last updated: 09 February 2021