Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Clarke v South Eastern Sydney Local Health District [2021] NSWCA 84 Hearing dates: 26 April 2021 Date of orders: 13 May 2021 Decision date: 13 May 2021 Before: Gleeson JA at [1]; Emmett AJA at [2] Decision: Order that: 1. The application for leave to appeal be refused. 2. The notice of motion filed 7 April 2021 be dismissed. 3. The Applicant pay the Respondents' costs of the application, including the motion. Catchwords: CIVIL PROCEDURE — parties — vexatious litigants — stay of proceedings — appeal from stay —whether primary judge made any legal or factual error Legislation Cited: Vexatious Proceedings Act 2008 (NSW), ss 6, 8 Health Practitioner Regulation National Law 2009 (NSW) Cases Cited: South Eastern Sydney Local Health District v Clarke [2020] NSWSC 1155 Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 Texts Cited: Nil Category: Principal judgment Parties: Sharmain Daisy Clark (Applicant) South Eastern Sydney Local Health District (First Respondent) Nursing and Midwifery Council of New South Wales (Second Respondent) Representation: Counsel: Applicant in person S M Kettle (First and Second Respondents) Solicitors: Hicksons Lawyers (First and Second Respondents) File Number(s): 2021/44568 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Civil Citation: [2021] NSWSC 63 Date of Decision: 9 February 2021 Before: Schmidt AJ File Number(s): 2019/290194 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. GLEESON JA: I agree with Emmett AJA. 2. EMMETT AJA: By summons filed on 16 February 2021, Ms Sharmain Clarke seeks leave to appeal from orders made by Schmidt AJ (the primary judge) on 9 February 2021 under the Vexatious Proceedings Act 2008 (NSW) (the Act) in proceedings brought by the respondents, South Eastern Sydney Local Health District (the Health District) and the Nursing and Midwifery Council of New South Wales (the Council) (together the respondents). In addition, by notice of motion filed on 7 April 2021, Ms Clarke seeks an order under the Act for leave to institute proceedings by the filing of that notice of motion. In addition, by the notice of motion, Ms Clarke seeks some further 17 orders, most of which are incomprehensible. They appear to have the object of joining additional parties to the appeal who were not parties at first instance, in addition to obtaining leave to commence further proceedings. For the reasons set out below, the application for leave to appeal should be refused. It follows that the notice of motion has no utility and must be dismissed with costs. 3. By their summons filed on 17 September 2019, the respondents sought orders under the Act that Ms Clarke be prohibited from instituting proceedings in New South Wales and that all proceedings in New South Wales already instituted by her be stayed. The respondents were described in the summons as applicants and Ms Clarke was described as respondent. On 23 March 2020, the respondents filed an amended summons. The only difference from the summons of 17 September 2019 was that the respondents were described as plaintiffs and Ms Clarke was described as defendant. 4. The orders made by the primary judge on 9 February 2021 were very much narrower than the orders sought by the respondents in the amended summons. Order 1 made on 9 February 2021 prohibited Ms Clarke from instituting proceedings in New South Wales against or relating to: 1. the Health District, its statutory predecessors and successors, its staff, consultants, executive officers and agents in relation to any matter arising from Ms Clarke's employment; 2. the Council and the Health Professional Councils Authority, their staff, consultants, executive officers and agents in relation to any matter arising from Ms Clarke's professional practice, except with the consent of the Council; and 3. the subject matter of some 28 separate proceedings in various tribunals, in the Local Court of New South Wales, in the District Court of New South Wales, in the Supreme Court of New South Wales and in the Federal Circuit Court of Australia and in the Federal Court of Australia. By Order 2 made on 9 February 2021, two proceedings brought by Ms Clarke in the District Court against Hicksons Lawyers and against several doctors were stayed. The subject matter of the various sets of proceedings referred to in the orders made by her Honour are all concerned with circumstances in which Ms Clarke was employed by the Health District and conditions on her entitlement to practise as a nurse were imposed. 1. Ms Clarke's draft notice of appeal does not formulate any intelligible ground of appeal and the summary of argument filed in support of her application for leave fails to articulate any comprehensible ground of appeal. Because she appeared without legal assistance, Ms Clarke was afforded far more than the usual opportunity to make oral submissions in support of her application for leave. However, she was unable to articulate comprehensible grounds of appeal other than a bare assertion that the primary judge misapplied the law and made errors of fact. Further, no mention was made of any error in applying the law or any error in fact finding in her draft notice of appeal or summary of argument. 2. On 28 August 2020, Harrison J fixed the respondents' amended summons for hearing before the primary judge on 16 and 17 November 2020. [1] However, on 13 October 2020, Ms Clarke filed a notice of motion seeking leave to issue subpoenas to numerous persons as well as seeking orders to set aside, revoke, amend, review and rescind various judgments in proceedings in which she had taken against the Health District and the Council from 2008 to date. As the primary judge observed, Ms Clarke failed to explain why she sought the issue of the subpoenas or what evidence she sought to call from the proposed witnesses. Her Honour refused Ms Clarke's application to have her motion heard before the respondents' amended summons since it was apparent that she was thereby seeking to circumvent the orders that had been given previously. Her Honour was satisfied that the motion could not justly be heard and that the hearing of the amended summons should proceed. Her Honour was well satisfied that justice simply could not permit the course that Ms Clarke wished to pursue. 3. The primary judge began her reasons by stating a number of matters that were not in issue, as follows: * Ms Clarke was trained as a nurse in South Africa, registered as a nurse in Australia in 2003 and worked as a nurse at hospitals in Sydney, where her employment was terminated in 2015; * complaints made about Ms Clarke eventuated in the imposition of conditions on her registration under the Health Practitioner Regulation National Law 2009 (NSW) (the National Law); * Ms Clarke was required to undergo a health assessment with the eventual result that she has been prevented from working as a registered nurse; * Ms Clarke's appeal against the imposition of conditions was dismissed by the Civil and Administrative Tribunal of New South Wales and there was no appeal from that decision; * Ms Clarke had a lengthy history of other litigation relating to her former employment against the Health District and the Council; and * Ms Clarke has brought proceedings arising out of her employment and nursing registration in various courts and tribunals as indicated above and some of those proceedings are still on foot. 1. The primary judge summarised the issues between the parties as being whether: * Ms Clarke has frequently instituted or conducted proceedings in Australia within the meaning of s 8(1) of the Act; * those proceedings were vexatious within the meaning of s 6 of the Act; and * the Court should exercise its discretion under s 8(7) of the Act to stay all or part of those proceedings and prohibit Ms Clarke from instituting further proceedings. Her Honour observed that the matters in issue were to be resolved in light of the purpose of the scheme of the Act of shielding other litigants from harassment and protecting the Court from the expense, burden and inconvenience of baseless and repetitious suits. [2] 1. The primary judge referred to the affidavit evidence relied upon by the respondents to establish the nature, frequency and multiplicity of proceedings brought by Ms Clarke, the common parties to those proceedings, the form and subject matter of the proceedings and the relevant findings and views of the judicial and other officers who determined the proceedings. The respondents contended before her Honour that, given the failure of the majority of the proceedings that Ms Clarke had instituted against the same parties in relation to similar facts, the serious assertions of impropriety and misconduct that she unsuccessfully pursued and her persistence in seeking to re-open orders and re-agitate matters decided, the evidence established abuse of process, that Ms Clarke had instituted proceedings that harassed, annoyed and caused detriment and that she had pursued proceedings without reasonable grounds. That, the respondents contended, fell within the definition of vexatious proceedings within s 6 of the Act as follows: 1. proceedings that are an abuse of the process of a court or tribunal; 2. proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose; 3. proceedings instituted or pursued without reasonable ground; and 4. 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. 1. The primary judge observed that 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. [3] Her Honour considered that the views of the judicial officers who resolved the proceedings could be taken into account in determining whether the definition of "vexatious proceedings" was satisfied, although they would not be determinative, [4] and that proceedings could involve an abuse of process, regardless of whether the person instituting or conducting them intends to abuse the Court's process. Her Honour said that vexatious proceedings could also be instituted or pursued without reasonable grounds, regardless of whether the party realised that the proceedings lacked any reasonable basis. [5] 2. The primary judge concluded that that situation had been established in the case of Ms Clarke and that the evidence well established how repeatedly and frequently Ms Clarke had unsuccessfully pursued her beliefs in the proceedings that she has brought regarding her various claimed mistreatments and the other misconduct that she has repeatedly alleged against others with whom she has worked, the Health District, the Council and others. Her Honour observed that, despite all the proceedings that Ms Clarke has pursued, she has not yet established any of her claims on their merits. Nevertheless, her Honour said, despite that lack of success, 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. Her Honour was well satisfied that there can be no question that Ms Clarke had frequently instituted and conducted vexatious proceedings in Australia and that the Court's power to make orders sought by the respondents was enlivened and must be exercised. 3. In the course of her oral submissions to this Court, Ms Clarke was repeatedly asked to formulate the misapplication of the law and the errors of fact upon which she sought to rely if leave were to be granted. She was unable to do more than to assert that the proceedings she had brought were not vexatious. It can be assumed that Ms Clarke has a genuine belief that she has been hardly done by. However, as the primary judge observed, and the Act makes clear, the subjective intention or motive of Ms Clarke is irrelevant. The provisions would be attracted if proceedings be frequently instituted and the proceedings are instituted or pursued without reasonable ground or in a way that harasses or causes unreasonable annoyance, delay or detriment. Ms Clarke conceded in oral argument that she has frequently instituted and conducted proceedings, although she disputed that any of her proceedings were "vexatious proceedings". 4. No error of law or misapplication of the law on the part of the primary judge has been demonstrated. Further, Ms Clarke was unable to identify any factual finding made by the primary judge that could be shown to be erroneous. Rather, Ms Clarke repeatedly sought to raise the matter of her complaint about the termination of her employment and the imposition of conditions on her entitlement to practise. She was unable to identify any finding made by the primary judge that she said was erroneous. 5. Ms Clarke has not demonstrated the slightest possibility of error on the part of the primary judge or demonstrated any basis upon which an appeal could be allowed. The application for leave to appeal should be refused with costs. ********** Endnotes 1. See South Eastern Sydney Local Health District v Clarke [2020] NSWSC 1155. 2. See Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [56] ("Teoh"). 3. See Teoh at [49]. 4. See Teoh at [50], [52]. 5. See Teoh at [55]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 May 2021