Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Clarke v Nursing and Midwifery Council New South Wales [2021] NSWCA 86 Hearing dates: 26 April 2021 Date of orders: 13 May 2021 Decision date: 13 May 2021 Before: Gleeson JA at [1] Emmett AJA at [29] Decision: (1) Extend the time for filing the summons seeking leave to appeal to 14 December 2020. (2) The amended summons seeking leave to appeal filed 1 March 2021 be dismissed. (3) Applicant to pay the respondent's costs. Catchwords: APPEALS – application for leave – amount in issue less than threshold of $100,000 – where dismissal of defamation proceedings involving two matters complained of – where no issue of principle or question of general importance – whether applicant demonstrated an injustice which is more than merely arguable – where likely costs of any appeal disproportionate to the small amount in issue Legislation Cited: District Court Act 1973 (NSW), s 127(2)(c) Health Practitioner Regulation National Law 2009 (NSW), s 237 Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 51.12(3), 51.12(4), 51.18(1)(e) Vexatious Proceedings Act 2008 (NSW), s 8(7)(b) Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 South Eastern Sydney Local Health District v Clarke [2021] NSWSC 63 Category: Procedural rulings Parties: Sharmain Daisy Clarke (Applicant) Nursing and Midwifery Council New South Wales (Respondent) Representation: Counsel: Sharmain Daisy Clarke (Self-represented) (Applicant) B Tronson / D J McDonald-Norman (Respondent) Solicitors: Sharmain Daisy Clarke (Self-represented) (Applicant) Hicksons Lawyers (Respondent) File Number(s): 2020/353528 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2020] NSWDC 641 Date of Decision: 23 October 2020 Before: Scotting DCJ File Number(s): 2018/113261 [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: The applicant, Sharmain Daisy Clarke (Ms Clarke), seeks leave to appeal from a judgment of the District Court delivered on 23 October 2020 dismissing her claim for defamation against the respondent, the Nursing and Midwifery Council New South Wales (the Council): Clarke v Nursing and Midwifery Council New South Wales [2020] NSWDC 641. 2. Ms Clarke requires leave to appeal because the amount in issue is less than the threshold of $100,000: District Court Act 1973 (NSW), s 127(2)(c). She also requires an extension of time because her summons seeking leave to appeal was filed out of time on 14 December 2020. I am satisfied that an extension of time should be granted in circumstances where Ms Clarke, who is self-represented, attempted to file her summons electronically within time, together with a request for waiver of the filing fee on 9 November 2020. 3. One preliminary matter should be noted. The filing by Ms Clarke of the summons seeking leave to appeal on 14 December 2020 occurred before the orders made by Schmidt AJ in proceedings in the Common Law Division on 9 February 2021 under s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW) prohibiting Ms Clarke from instituting proceedings relating to the subject matter of certain identified proceedings, including the defamation proceedings below in the District Court: South Eastern Sydney Local Health District v Clarke [2021] NSWSC 63 at [141(c)]. Accordingly, the bringing of this application for leave to appeal is not prohibited by that order. The District Court judgment 1. Ms Clarke's claim against the Council for defamation involved two publications. 2. The first matter was an email sent by Ms Kim Bryant (an officer of the Council) to Ms Chris Glasheen of the Australian Health Practitioner Regulation Authority (AHPRA) dated 25 July 2017 (the 25 July email) informing Ms Glasheen of action taken by the Council in relation to a complaint from South Eastern Sydney Local Health District in September 2015, including that on 13 July 2017 the Council amended the conditions of Ms Clarke's registration as a nurse, and imposed a condition that she must not work as a registered nurse until reviewed by the Council, and must attend for a health assessment by a psychiatrist appointed by the Council. This email was sent by Ms Bryant in response to an email from Ms Glasheen of 17 July 2017 who asked if there was any reason why Ms Clarke's renewal application as a registered nurse should not be renewed. 3. The second matter was the alleged transmission by the Council to Dr Andrew Adams, Ms Clarke's general practitioner, on or about 24 April 2018, of a document containing an extract of the conditions on Ms Clarke's registration recorded on the National Register. Ms Clarke alleged that Dr Adams was sent a letter of 20 April 2018 that was addressed to her attaching the "Orders and Conditions" recorded on the National Register, and that she was sent a letter dated 20 April 2018 addressed to Dr Adams. 4. In her amended statement of claim, Ms Clarke alleged that each of the matters complained of carried the following imputations: (a) The plaintiff is not a fit and proper person to practice as a registered nurse; (b) The plaintiff is not a fit and proper person to practice as a registered nurse by reason of a psychiatric illness; (c) The plaintiff is not a fit and proper person to practice as a registered nurse by reason of her practical competence. First matter complained of 1. The primary judge (Scotting DCJ) found in relation to the first matter complained of, that: (1) the email was published only to Ms Glasheen, and did not form part of the information available on the National Register maintained by AHPRA; (2) the three pleaded imputations did not arise from the email; (3) in any event, the Council had established its defence under s 237 of the Health Practitioner Regulation National Law 2009 (NSW) (the National Law). The defence provided by s 237 applies to a person who, in good faith, "gives information in the course of an investigation or for another purpose under this Law to a person exercising functions under this Law": s 237(1), National Law. Section 237(2) provides that "the person is not liable, civilly, criminally or under an administrative process, for giving the information". 2. With respect to the pleaded imputations, the primary judge observed at [191] that the ordinary reasonable reader in the position of an officer of AHPRA would understand the email to convey that there were genuine concerns about Ms Clarke's mental health and/or practical competency that required investigation. The primary judge found at [192] that the first matter complained of did not convey any of the pleaded imputations because the judgment of the ordinary reasonable reader in the position of an employee of AHPRA is suspended as to the sting of the imputations by reference to the outcome of the health and/or performance assessment. That is, the ordinary reasonable reader in the position of an employee of AHPRA would have understood that if the health assessment did not conclude that Ms Clarke was suffering from a medical condition that could adversely affect her ability to perform her duties as a nurse, or that she successfully completed a performance assessment, then the Council applying the National Law would have been obliged to remove the conditions on Ms Clarke's registration as a nurse. 3. With respect to the good faith defence, the primary judge gave the following reasons at [220]: (1) Mrs Glasheen's email stated that the information was required for AHPRA to exercise a function under the National Law, namely whether or not to renew the plaintiff's registration as a health practitioner; (2) Ms Bryant's email provided a factual chronology of the events that occurred during the Council's management of the complaint against the plaintiff, the details of which would not have been known to AHPRA and were relevant to the exercise (sic) its stated function under the National Law; (3) Ms Bryant gathered the information provided in (sic) email by carefully examining the contents of the TRIM file; (4) Ms Bryant acted honestly and with integrity and with a reasonable degree of skill (sic) care and diligence; (5) Ms Bryant acted without malice or ill-will towards the plaintiff; and (6) In all the circumstances, Ms Bryant acted in good faith by providing the information to AHPRA in the email. 1. Against the possibility that his findings with respect to the first matter complained of were wrong, the primary judge made a contingent finding assessing damages of $1,000. Second matter complained of 1. The primary judge was not satisfied that Ms Clarke had proved that the Council had published the second matter complained of: at [233]. In reaching this conclusion, the primary judge did not accept Ms Clarke's evidence that the Orders and Conditions report in a letter of 20 April 2018 addressed to Ms Clarke was in fact provided to Dr Adams on or about 24 April 2018, or at all, giving a number of reasons at [225], including: 1. Ms Clarke's failure to produce the original letter she alleged was mistakenly conveyed to her by the Council instead of being sent to Dr Adams; 2. Ms Clarke's decision not to call Dr Adams to give evidence; 3. the evidence of Ms Deborah Mudyara, a Program Officer employed by the Council, which his Honour accepted as credible; 4. the evidence of Mr Peter Bate, the Information Technology Systems Manager of the entity that provides IT services to the Council, which confirmed that the "Orders and Conditions" report, being the material allegedly transmitted by the Council to Dr Adams, was not created until 17 May 2018 and could not have been printed or sent electronically before that time; and 5. the metadata in the Council's records-keeping systems. Proposed grounds of appeal 1. Ms Clarke seeks to rely upon eight proposed grounds of appeal: 1. Miscarriage of Justice and Error in Law. 2. Error in Facts and statements made inconsistent with facts. 3. Failure in identifying multiple statutory breaches under the Health Practitioners Regulation National Law, Defamations Act 2005, Privacy and Personal Information Protection Act; and Crimes Act 1900. No 40 SEC138; PART 4AA; 192B; 192D(1) & (2); 192E; 192F; 192G; PART 5 FORGERY SEC 250; SEC 253; 254; 255; 307A; 307B; 307C; 317; 318; 327; 336 given evidentiary materials tendered as exhibits prior to the Trial commenced. 4. Prejudice in the highest. 5. Lack of discretion in exercising inferences that could have been drawn in the conduct of the respondent that failed to make their case in the Lower Court from a loss of privilege under the Law in exercising any good faith. 6. Failure in requesting any forensic expert evidences to have seconded the allegations made about the applicants alleged psychiatric ill health from the Respondent's agents and clients. 7. Principle of issue impacting public safety concerns under the Law was dismissed from preventing the respondent appearing guilty of an action warranting wrongful conduct, causing a further prejudice and miscarriage of justice in the highest from the ignorance employed by the Lower Court Judge, which is the cause of the Defamatory imputations. 8. Factor of Vulnerability and Procedural Irregularity in the highest. 1. The proposed grounds of appeal fail to state briefly, but specifically, the grounds relied on in support of the appeal, as required by Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.18(1)(e). The grounds do not identify any asserted legal or factual error. 2. Nor does Ms Clarke's amended summary of argument filed 1 March 2021, comprising 23 pages, comply with the rules. The written submissions do not clearly articulate the questions involved, or briefly state the applicant's argument: UCPR, r 51.12(4). The submissions also well exceed ten pages: UCPR, r 51.12(3)(a). 3. Accepting that some latitude may, in an appropriate case, be afforded to a litigant in person, and that the Court is empowered to waive the requirements of the UCPR in an appropriate case, this is not such a case. Nevertheless, I have read and considered the amended summary of argument with a view to attempting to discern any arguable ground of appeal. Disposition of application 1. None of the proposed grounds of appeal raise an issue of principle or a question of general importance. Nor is there an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well-established that it is not sufficient merely to show that the trial judge was arguably wrong: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]. 2. Turning to the substance of Ms Clarke's oral submissions asserting error by the primary judge, it is sufficient to record the following. 3. First, contrary to Ms Clarke's submissions that the attachments to a letter from AHPRA to her dated 17 September 2017 evidence publication of the first matter in the National Register, that letter and its attachments cast no doubt on the primary judge's finding that there is no evidence that the 25 July email formed part of the information recorded on the National Register, or that it was accessible by persons accessing the National Register. 4. Second, insofar as Ms Clarke contested the primary judge's findings that the first matter complained of did not convey the pleaded imputations referred to at [7] above, I am not persuaded that it is reasonably arguable that his Honour erred in his finding. No attempt was made by Ms Clarke in her written or oral submissions to grapple with, let alone suggest error in, his Honour's reasoning at [191]-[192], to which reference has been made at [9] above. 5. Third, Ms Clarke's challenge to the primary judge's finding that the Council had established the good faith defence under s 237 of the National Law in relation to the first matter complained of, did not identify any legal error. 6. Insofar as Ms Clarke challenged the primary judge's acceptance of the evidence of Ms Bryant on the good faith defence, his Honour's findings were informed by his assessment of the credibility and reliability of Ms Bryant. To succeed in challenging this factual finding on appeal, Ms Clarke would need to demonstrate that the trial judge's conclusions are erroneous because of "incontrovertible facts or uncontested testimony", or that the decision is "glaringly improbable" or "contrary to compelling inferences": Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [43]; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]. I am not persuaded that this factual challenge is reasonably arguable. 7. Fourth, Ms Clarke's challenge to the finding by the primary judge that the second matter complained of was not published by the Council to Dr Adams, did not identify any legal or factual error. There is no basis for doubting the primary judge's acceptance of the evidence of Mr Bate, referred to at [12(4)] above; Ms Clarke's submission to the contrary, was based on a misreading of the cross-examination of Mr Bate to which she referred the Court in oral argument (Tcpt 15/10/20, 312 (48)-313 (22)). 8. Only if a decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. This is not such a case. There is a further reason to refuse leave to appeal in this case; the amount in issue is very small and the likely costs of an appeal are disproportionate to the amount in issue: Be Financial at [37]-[39]. 9. The damages contingently assessed by the primary judge in relation to the first matter complained of were $1,000. As to the second matter complained of, even if, contrary to the primary judge's finding, publication was established, and Ms Clarke were to establish that the alleged imputations were conveyed, and assuming that the Council did not have a good faith defence under s 237 of the National Law, it is difficult to conceive how any damages for this publication would be materially greater than the amount contingently assessed with respect to the first matter complained of. Taken together, the small amount in issue does not justify the further costs of an appeal. Conclusion and Orders 1. For the reasons given above, leave to appeal should be refused. 2. As to costs, Ms Clarke submitted that refusal of the leave application should not attract a costs order because the matter involves a cause of action which should be determined under a "no costs application". No authority was cited for this proposition. It was further submitted without explanation that costs should be paid by the Council. There is no merit in either submission. No sufficient reason has been established to displace the usual order that costs should follow the event: UCPR, r 42.1. 3. Accordingly, I propose the following orders: 1. Extend the time for filing the summons seeking leave to appeal to 14 December 2020. 2. The amended summons seeking leave to appeal filed 1 March 2021 be dismissed. 3. Applicant to pay the respondent's costs. 1. EMMETT AJA: Ms Clarke seeks leave to appeal from orders made by the District Court of New South Wales dismissing her claim for damages for defamation. I have had the advantage of reading in draft form the reasons of Gleeson JA for concluding that there was no error on the part of the District Court. I agree, for the reasons given by Gleeson JA, that the time for filing Ms Clarke's summons seeking leave to appeal should be extended but that the application for leave to appeal should be dismissed with costs. ********** 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