South Eastern Sydney Local Health District v Clarke

[2020] NSWSC 1155

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

26 August 2020

Date of orders:

28 August 2020

Decision date:

28 August 2020

Jurisdiction:

Common Law

Before:

Harrison J

Decision:

(1)   Refuse the plaintiff’s application for referral for pro bono legal assistance.

(2)   Appoint 16 and 17 November 2020 for hearing of the plaintiff’s claim.

(3)   Stay the hearing of the plaintiff’s cross summons until further order.

(4)   Grant liberty to the parties to apply on 7 days’ notice.

(5)   Costs of this directions hearing to be costs in the proceedings.

Catchwords:

CIVIL PROCEDURE – application for referral to pro bono legal assistance – where application not opposed – where applicant already referred to legal assistance within previous 3 years – where no prospect that referral will be beneficial or of practical benefit

Legislation Cited:

Vexatious Proceedings Act 2008 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural and other rulings

Parties:

South Eastern Sydney Local Health District (Plaintiff)
Sharmain Daisy Clarke (Defendant)

Representation:

Counsel:
S Kettle (Plaintiff)

Solicitors:
Hicksons (Plaintiff)

File Number(s):

2019/290194

Publication restriction:

Nil

Judgment

1. HIS HONOUR: By its amended summons filed on 23 March 2020, the plaintiff seeks relief against Ms Clarke pursuant to the Vexatious Proceedings Act 2008. I am informed by counsel for the plaintiff that its evidence in support of the amended summons is complete and has been served upon Ms Clarke.

2. By her notice of motion filed on 3 February 2020, Ms Clarke seeks an order that she be referred pursuant to UCPR 7.36 for pro bono legal assistance. That application is not opposed, but Ms Clarke’s application necessarily has to confront the fact that she has been referred for assistance previously within the last three years. UCPR 7.36(2A) provides as follows:

(2A) The court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of 3 years unless the court is satisfied that there are special reasons that justify a further referral.

3. Ms Clarke has sworn an affidavit dated 3 February 2020 which she says provides a short overview of the reasons that she requires legal assistance. I have had regard to that affidavit and to a significant amount of material deposed to by her in several other affidavits filed in these proceedings. By her own account, Ms Clarke is indigent, has no legal training and has suffered from time to time from serious psychiatric conditions including episodes of psychosis.

4. The plaintiff contends in the principal proceedings that Ms Clarke has commenced or maintained in excess of 30 sets of proceedings against it in multiple jurisdictions. It is presently both inappropriate and unnecessary to comment further upon these contentions, save to observe that Ms Clarke’s proceedings appear generally, if not exclusively, to have been generated by circumstances in the workplace that led to, or at least included, the suspension of her nursing registration. Ms Clarke patently maintains that she was improperly treated and that actions taken against her in this context by the plaintiff are unwarranted and illegitimate. Undoubtedly, the circumstances that have led to the commencement of the several proceedings that are the subject of the plaintiff’s current claims will have to be examined and assessed in this Court.

5. Doing the best I can, it does not seem to me that it is likely that there is any utility in again referring Ms Clarke for pro bono legal assistance. As her affidavit makes plain, Ms Clarke has been the beneficiary of legal assistance in the past from the Redfern, Matraville, Kingsford, Blacktown and Toongabbie Legal centres since as long ago as 2016 and as recently as this year. Ms Clarke has deposed to the fact that Legal Aid was not prepared to assist in her employment matter as early as June 2016 “because of the factual and legal complexities distinct in the matter complained about”. It is my view, having reviewed the wealth of material filed by Ms Clarke, as well as that to which this Court will presumably be directed for the purpose of deciding the plaintiff’s claim, that there is no prospect that a referral for legal assistance will be beneficial or that it will be of any practical benefit.

6. In forming that view, I am not suggesting that Ms Clarke either is required to establish special reasons for a further referral or, if she is, that she has not done so. My distinct impression is simply that a referral to the pro bono scheme will not result in Ms Clarke being provided any legal assistance for the purposes of defending these proceedings.

7. Ms Clarke has indicated that she wishes to file, or has already filed, a cross summons. 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. It does not seem to me to be an efficient use of this Court’s time to postpone the hearing of the plaintiff’s claim until the foreshadowed cross summons is ready to be heard. Both parties otherwise agree that the plaintiff’s claim is now in a position to be allocated a date for hearing.

8. In the circumstances I consider that the following orders should be made:

1. Refuse Ms Clarke’s application for referral for pro bono legal assistance.

2. Appoint 16 and 17 November 2020 for the hearing of the plaintiff’s claim.

3. To the extent that may be required, stay the hearing of Ms Clarke’s cross summons until further order.

4. Grant liberty to the parties to apply to me on 7 days’ notice.

5. Order that the costs of the directions hearings before me should be the costs in the proceedings.

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Decision last updated: 28 August 2020