FEDERAL COURT OF AUSTRALIA

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

ORDERS

THE COURT ORDERS THAT:

1.    Leave pursuant to s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) is refused.

2.    The proceeding is dismissed.

3.    The Applicant in the proceeding, Ms Clarke, is to pay the costs of the Respondent, either as assessed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    Leave pursuant to s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) is refused.

2.    The proceeding is dismissed.

3.    The Applicant in the proceeding, Ms Clarke, is to pay the costs of the Respondent, either as assessed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    Leave pursuant to s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) is refused.

2.    The Applicant’s Interlocutory Application filed on 9 May 2019 is dismissed.

3.    The proceeding is dismissed.

4.    The Applicant in the proceeding, Ms Clarke, is to pay the costs of the Respondent, either as assessed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FLICK J:

1    The factual background to the present set of proceedings have a long history.

2    The Applicant in the present proceedings, Ms Sharmain Daisy Clarke (previously known as Ms Naicker), trained as a nurse in South Africa in 1994. She was first registered as a nurse in Australia in 2003.

3    Ms Clarke commenced work for Royal Hospital for Women (part of the South Eastern Sydney Local Health District) in 2011. During 2013 and 2014 concerns were raised as to her competence. In May 2015, her employment at the Royal Hospital for Women was terminated. Conditions were later imposed upon her registration by the Nursing and Midwifery Council of New South Wales.

4    Ms Clarke has thereafter pursued a host of avenues seeking redress for what she sees as wrongs committed against her.

5    The involvement of this Court commenced in February 2019 when Ms Clarke purported to commence two separate proceedings by way of an Originating application under the Australian Human Rights Commission Act 1986 (the “Originating Application”). In the first proceeding (NSD 166 of 2019), the Respondent is identified as:

    the Nursing and Midwifery Council New South Wales (the “Midwifery Council”).

In the second proceeding (NSD 167 of 2019) the Respondent is identified as:

    the South Eastern Sydney Local Health District (the “Local Health District”).

A third proceeding (NSD 691 of 2019) was commenced in May 2019 when Ms Clarke filed a further Originating Application. The Respondent in this proceeding is identified as:

    Ms Susan Dale, described as being “an ex-employee for the South Eastern Sydney Local Health District”.

The allegations sought to be agitated by Ms Clarke (in very summary form) were that she had been discriminated against, in particular under the Racial Discrimination Act 1975 (Cth) and the Disability Discrimination Act 1992 (Cth).

6    Now before the Court are a number of Interlocutory Applications, being:

    applications filed in March 2019 by the Midwifery Council and the Local Health District, in proceedings NSD 166 of 2019 and NSD 167 of 2019, seeking (inter alia) an order that the Originating Application in each of the proceedings be dismissed by reason of s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the “Human Rights Commission Act”); and

    an application filed in May 2019 by Ms Dale (in NSD 691 of 2019) seeking (inter alia) an order that the Originating Application be dismissed by reason of s 46PO of the Human Rights Commission Act.

Ms Clarke, has also filed in NSD 691 of 2019 an Interlocutory Application in May 2019, this application being filed prior to the Interlocutory Application filed by Ms Dale, seeking (inter alia) an order that:

    “leave be granted under Section 46PO 3A(a) of the AHRCA; to commence proceedings before this Honourable Court in matter number NSD 691/2019; in a cause of action of Race Discrimination and Human Rights Breaches”.

7    All of these Interlocutory Applications were heard together, with the evidence in one proceeding being admitted in the other proceedings, as the issues to be resolved overlapped considerably.

8    At the interlocutory hearing on 22 May 2019, Ms Clarke appeared in person. The Respondent in each matter was represented by Counsel.

9    In very summary form, Counsel on behalf of the Respondents initially contended that:

    the proceedings against the Local Health District and the Midwifery Council, having been commenced without leave having been granted pursuant to s 46PO(3A)(a) of the Human Rights Commission Act, were incompetent and that it was not open to the Court to retrospectively grant leave so as to regularise the commencement of those proceedings; and

    leave should be refused to commence the proceeding against Ms Dale because (inter alia) the issues sought to be explored had been canvassed exhaustively in other proceedings.

10    In post-hearing submissions, Counsel for the Respondents settled upon the submission that Ms Clarke was “not required to commence fresh proceedings for the purposes of seeking leave pursuant to s. 46PO(3A)(a)” and that it was “not too late” for Ms Clarke to seek “leave to continue the proceedings” against the Local Health District and the Midwifery Council. But it was further submitted the grant of leave was opposed.

11    Again in very summary form, Ms Clarke:

    made an oral application for leave to commence (or to continue) the proceedings against the Local Health District and the Midwifery Council; and

    contended that although she had participated in and pursued a great number of administrative and judicial proceedings, she had, to-date, been denied a proper opportunity to participate in any of those proceedings by reason of a denial of procedural fairness and by reason of her health conditions.

Any necessity for Ms Clarke to file further Interlocutory Applications seeking leave to commence the proceedings with respect to the Local Health District and Midwifery Council proceedings was dispensed with.

12    It is concluded that:

    leave to make the application as 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.

Although the reasons for these conclusions can be briefly expressed, it has nevertheless proved necessary to also briefly canvass the long history of complaints made by Ms Clarke seeking to vindicate her claims that she has been subjected to unlawful discrimination.

13    The starting point, however, remains the terms of the Human Rights Commission Act and, in particular, s 46PO of that Act.

AN EXCLUSIVE REGIME – SECTION 46PO

14    The Human Rights Commission Act prescribes a regime for the redress of unlawful discrimination. And the regime there prescribed is an “exclusive one”. One aspect of that regime is that this Court has no jurisdiction to entertain any application to hear an allegation of unlawful discrimination unless the conditions in s 46PO of the Human Rights Commission Act are satisfied.

15    In summarising this regime, Perry J in Picos v Australian Federal Police [2015] FCA 118 (“Picos”) said:

4.2 Statutory preconditions for commencing proceedings in the Federal Court for a contravention of the SD Act

[34]    Part IIB of the AHRC Act establishes a regime for redress for “unlawful discrimination”. “Unlawful discrimination” is defined in s 3 of the AHRC Act to mean any acts, omissions or practices that are unlawful under Part 4 of the Age Discrimination Act 2004, Part 2 of the Disability Discrimination Act 1992, Part II of the Racial Discrimination Act 1975, and, relevantly, Part II of the SD Act (including any conduct which is an offence under s 94) in which s 28G appears (collectively, the Unlawful Discrimination Laws). Section 28G makes it unlawful for a person to sexually harass another person in the course of providing, seeking or receiving goods or services.

[35]    Part IIB of the AHRC Act prescribes a number of steps:

a)    lodging a written complaint with the AHRC alleging unlawful discrimination (s 46P);

b)    referring the complaint to the President of the AHRC (s 46PD);

c)    requiring the President to inquire into the complaint and attempt to conciliate it (s 46PF(1));

d)    providing that the President may terminate a complaint on a number of grounds including that the alleged unlawful discrimination is not unlawful discrimination, the complaint was lodged more than 12 months after the alleged unlawful discrimination occurred, or the President is satisfied that the complaint was trivial, vexatious, misconceived or lacking in substance (s 46PH);

e)    affording the affected person the right, where a complaint is terminated and the President has given notice, to apply within 60 days to the Federal Court or the Federal Circuit Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint (s 46PO(1) and (2));

f)    limiting the right to pursue a claim to unlawful discrimination through the courts to unlawful discrimination which is the same, or the same in substance, as that which was the subject of the terminated complaint, or arises out of the same acts, omissions or practices (s 46PO(3));

g)    conferring power on the court to grant a range of remedies if satisfied that there has been unlawful discrimination by any respondent, including declaratory relief and compensatory damages (s 46PO(4)).

[36]    It is well established that this regime is an exclusive one for remedying contraventions of the Unlawful Discrimination Laws, including the SD Act: … In other words, a contravention of s 28G of the SD Act gives rise only to a right to invoke the procedures, and to obtain the remedies provided for, in the AHRC Act. As Katzmann J held in Dye v Commonwealth Securities Limited [2010] FCA 720 at [78]-[79]:

Just like the Racial Discrimination Act did when it was enacted, the AHRC Act expressly provides a private remedy for a contravention of s 94 [of the SD Act] and prescribes detailed procedures for obtaining it. That is the remedy the applicant has invoked. In my view it is an exclusive one. The only right that the Act creates is a right to engage the processes prescribed by it and the duties or liabilities that are created are correlative to that right: Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 at [31]-[32].

It makes no sense for the legislature to establish an elaborate process for the vindication of rights but at the same time to contemplate the use of common law remedies working alongside and independently of it. To do so would defeat the purpose of the system of redress afforded by the Act, which promotes conciliation over litigation. It would undermine s 46PO, which limits the circumstances in which litigation may be pursued. In my opinion, an action as [sic] the case for a breach of s 94 of the SDA is not available.

[37]    Her Honour’s decision in this respect was upheld on appeal in Dye v Commonwealth Securities Limited (No. 2) [2010] FCAFC 118 at [71] which held that neither the AHRC Act, nor the SD Act, created or gave rise to any common law cause of action for relief.

[38]    That being so, there is no jurisdiction to hear an allegation of unlawful discrimination under s 28G of the SD Act unless the conditions in s 46PO of the AHRC Act are satisfied: Bropho at [53]. Justice Gleeson reached the same conclusion in dismissing so much of a claim made by Ms Picos as alleged sex discrimination in Picos v Servcorp Limited [2014] FCA 922 at [22].

(some citations omitted; emphasis in original)

Concurrence is expressed with her Honour’s exposition of the regime imposed by Pt IIB of the Human Rights Commission Act.

16    Within that regime, three specific provisions should be set forth.

17    First, s 46PF(1) provides as follows:

Inquiry by President

Subject to subsections (1A) and (5), if a complaint is referred to the President under section 46PD, the President must:

(a)    consider whether to inquire into the complaint, having regard to the matters referred to in section 46PH; and

(b)    if the President is of the opinion that the complaint should be terminated—terminate the complaint without inquiry; and

(c)    unless the President terminates the complaint under paragraph (b) or section 46PH—inquire into the complaint and attempt to conciliate the complaint.

18    Next, s 46PH(1) provides for the discretionary termination of a complaint, in relevant part, in the following circumstances:

Discretionary termination of complaint

The President may terminate a complaint on any of the following grounds:

…

(b)    the complaint was lodged more than 6 months after the alleged acts, omissions or practices took place;

…

(h)    the President is satisfied that the subject matter of the complaint involves an issue of public importance that should be considered by the Federal Court or the Federal Circuit Court.

In 2017, the Human Rights Legislation Amendment Act 2017 (Cth) amended s 46PH(1)(b), such that the period in which a complaint could be lodged with the Australian Human Rights Commission (the “Commission”) was decreased from 12 months to 6 months.

19    And, finally, s 46PO provides, in relevant part, as follows:

Application to court if complaint is terminated

  (1)    If:

(a)    a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and

(b)    the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

(2)    The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

  (3)    The unlawful discrimination alleged in the application:

(a)    must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)    must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

(3A)    The application must not be made unless:

    (a)    the court concerned grants leave to make the application; or

    (b)    the complaint was terminated under paragraph 46PH(1)(h); or

    (c)    the complaint was terminated under paragraph 46PH(1B)(b).

Subsection (3A) was inserted into s 46PO by virtue of the Human Rights Legislation Amendment Act 2017 (Cth).

20    Of present concern are the pre-conditions set forth in s 46PO(3A). In James v WorkPower Inc [2018] FCA 2083 (“WorkPower Inc”), Mortimer J gave detailed consideration to the requirements imposed by that sub-section and, in particular, the circumstances in which leave may be granted. Her Honour thus observed:

[31]    Like other judicial discretions empowering leave to be granted to a party to take a step in a proceeding (eg to serve out of the jurisdiction or to issue a subpoena: see rr 10.43(2) and 24.01 of the Federal Court Rules 2011 (Cth)) or to issue a proceeding (eg in relation to vexatious litigants or where leave is required to appeal: see ss 37AR and 24(1A) of the Federal Court of Australia Act 1976 (Cth), the interests of the administration of justice will be a governing consideration in the way the discretion falls to be exercised. However, how the assessment of what is in the interests of the administration of justice is to be undertaken will vary depending on the nature of the power in issue, and the circumstances which give rise to a request for its exercise. Here, as the respondent submits, the imposition of a leave requirement in certain circumstances by the amendments to s 46PO in 2017 had a clear purpose. Any consideration of where the interests of the administration of justice lie must recognise and give weight to that purpose.

[32]    The purpose of the leave discretion, taking into account its text and context, is to provide a filter. It removes what was previously an entitlement to bring a proceeding in this Court once the Commission has terminated a complaint. It sits alongside the limits which have always been imposed by s 46PO(3), themselves aimed at constraining the subject matter of proceedings under s 46PO to the substance of what was before the Commission.

Her Honour then went on to consider the “text and structure of Part IIB” and continued:

[34]    Part IIB of the AHRC Act contains a series of prescriptive requirements for complaints to the Commission that also inform the construction of operation of 46PO(3A). Section 46P prescribes what a complaint must contain, and who may lodge it. Section 46P(1A) imposes a requirement that “[i]t must be reasonably arguable that the alleged actions, omissions or practices are unlawful discrimination”. This provision was introduced at the same time as s 46PO(3A). It informs the powers in s 46PH(1) to terminate a complaint, and also the mandatory obligation to terminate a complaint in s 46PH(1B) and (1C).

[35]    The exceptions in s 46PO(3A) inform the construction and operation of the leave requirement. The exception relating to complaints of public importance (s 46PH(1)(h)) is intended to give effect to the Commission President’s (or her delegate’s) state of satisfaction that a complaint bears that character, and to recognise that no further filter is appropriate in such circumstances. The exception relating to the obligation to terminate a complaint if there is no reasonable prospect of the matter being settled by conciliation (s 46PH(1B)(b)) again recognises and gives effect to the satisfaction of the Commission President (or her delegate) that the complaint is of this nature. In relation to termination for this reason, it is important to understand that the President is only likely to form a state of satisfaction to this effect if:

(1)    The complaint is not trivial, vexatious, misconceived or lacking in substance so that it must be terminated pursuant to s 46PH(1B)(a); and

(2)    The complaint is not of a kind that falls within s 46PH(1C) (which may be another way of reaching in substance the same kind of conclusion as that reached under s 46PH(1B)(a)); and

(3)    None of the discretionary grounds for termination of a complaint under s 46PH(1) are identified by the Commission President as the appropriate basis.

[36]    In other words, if the President has identified the obligation in s 46PH(1B)(b) as triggered, because of her or his satisfaction that the complaint cannot be settled by conciliation, then it would appear implicit in that decision that the Commission President is also satisfied that the complaint is reasonably arguable, but that the view is reached that the matter cannot be successfully conciliated.

[37]    I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are – at the least – not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level.

[38]    There may be a range of other permissible considerations including:

(1)    the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;

(2)    the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be);

(3)    how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission’s termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable;

(4)    whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay;

(5)    whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;

(6)    the factual and legal complexity of the matters raised by the allegation of unlawful discrimination;

(7)    whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and

(8)    other factors that are often considered in leave applications – such as prejudice to a party.

[39]    As I have noted in other contexts, it is important with judicial discretions concerning leave not to conflate the task of granting leave with the task of considering what is the correct conclusion on the facts and the law at final hearing: see my comments to similar effect in Kaur v Minister for Immigration and Border Protection [2015] FCA 584; 233 FCR 507 at [28]-[31] and in DJS16 v Minister for Immigration and Border Protection [2018] FCA 2037 at [27]. It would be a denial of procedural fairness to an applicant at the very least and, in my opinion, a misunderstanding of the role to be played by the leave requirement in s 46PO(3A), if the Court were to embark on a detailed consideration and determination of the merits of the applicant’s underlying arguments about unlawful discrimination. Questions of fact, and questions of law, which are arguable are to be determined at trial, subject to any Court-directed processes such as the stating of a separate question under r 30.01 of the Federal Court Rules.

Concurrence is also expressed with this exposition provided by her Honour.

The refusal of leave

21    Consistent with the orders ultimately made by Mortimer J in WorkPower Inc, it is concluded that:

    even if leave could be granted subsequent to a proceeding having been commenced, leave should not now be granted to continue the existing proceedings against the Local Health District and the Midwifery Council; and

    leave to commence the proceeding against Ms Dale should be refused.

It would not matter if Ms Clarke sought to withdraw the existing proceedings and to commence fresh proceedings seeking leave. Leave, in such circumstances, would not be given.

22    Expressed generally, that conclusion has been reached primarily by reason of the fact that:

    Ms Clarke has commenced a multitude of proceedings in a variety of forums and has already had a more than adequate opportunity to ventilate such concerns as she may have wished to pursue;

    substantial and detailed consideration has already been given to the claims made by Ms Clarke, those claims varying perhaps one from the other but all having a common element; and

    there is no reason to question the approach taken by the Commission or such conclusions as have been reached by the Commission.

Reservation may also be expressed as to whether it is in the interests of the proper administration of justice and the pursuit of claims of discrimination to grant leave in circumstances where, for example, Ms Clarke had previously:

    made claims as to discrimination which taken at their “highest” were found to be without evidence and indeed in circumstances where Ms Clarke asserted she did not have the disability the subject of the claim: e.g. Clarke v South Eastern Sydney Local Health District [2017] NSWCATAD 81 at [40] to [41].

Applying some of those considerations outlined by Mortimer J in WorkPower Inc [2018] FCA 2083 at [38], and accepting both the gravity of the allegations made and the genuineness of Ms Clarke’s belief that she has been the victim of unlawful discrimination, the fact is that her claims have been previously considered and considered in a manner which has been comprehensive.

23    Each of the reasons now relied upon should nevertheless be briefly addressed.

PRIOR PROCEEDINGS & COMPLAINTS

24    Prior to commencing the present proceedings, Ms Clarke has sought relief in a myriad of ways, including:

    complaints made to non-judicial bodies; and

    through judicial resolution.

There have also been, of course:

    the complaints made to the Commission.

Each of these means by which Ms Clarke sought relief should be briefly mentioned.

Claims made to non-judicial bodies

25    It is difficult to attempt to summarise each of these proceedings. Albeit an incomplete record, the following table nevertheless adequately demonstrates the myriad of claims made by Ms Clarke to non-judicial bodies and the fate of those claims:

Claims made for judicial resolution

26    Ms Clarke has also over the years commenced a variety of proceedings in a variety of State judicial forums. An incomplete summary (as at 20 May 2019) is nevertheless the following:

27    In addition to these proceedings, Ms Clarke has also commenced proceedings in the Federal Circuit Court. One of these proceedings has been stood over awaiting resolution of the present proceeding in this Court.

The complaints made to the Commission

28    Each of the three proceedings in this Court follow complaints made by Ms Clarke to the Commission. It is difficult to present, in summary form, the nature of the complaints made and the entirety of the consideration given to these complaints by the Commission but, and subject to that necessary qualification, a very incomplete summary is as follows:

Of relevance for the purposes of s 46PO(3A)(b) and (c) is the fact that none of the complaints to the Commission were terminated pursuant to ss 46PH(1B)(b) or 46PH(1)(h) of the Human Rights Commission Act.

The detailed consideration given by the Commission to the claims made

29    Although Ms Clarke has made a variety of claims and although the detail of one or other of those claims may vary from one to the other, the essential subject matter of her claims has already been considered in some considerable detail.

30    Although it is of importance not to “conflate” the task of considering whether leave to commence a proceeding should be granted with any final resolution of the subject matter of complaints made (cf. WorkPower Inc [2018] FCA 2083 at [39] per Mortimer J), it nevertheless remains of importance to make reference to some of the detailed consideration that has been given to those earlier claims made by Ms Clarke. The comparability between the issues now sought to be litigated in the event that leave is granted pursuant to s 46PO(3A)(a) and the prior consideration that has been given to those issues is of relevance to both:

    the exercise of the discretion to grant or refuse leave; and

    the Respondents’ contention that the further pursuit of the subject matter of her claims in this Court would be an abuse of process.

The complaint as to the Local Health District

31    Thus, for example, if reference is made to the complaint made by Ms Clarke to the Commission against the Local Health District, that complaint focused upon conduct during the period from May 2013 to May 2015. The information provided by Ms Clarke was considered by the Commission and in November 2018 the Commission’s assessment of that information was provided to Ms Clarke together with an invitation to provide additional information. Further information was provided later in November 2018. In December 2018, the Commission wrote to Ms Clarke advising her as to its decision to terminate her complaint, pursuant to ss 46PF(1)(b) and 46PH(1)(b) of the Human Rights Commission Act, as follows:

My decision

Sections 46PF(1)(a) and 46PF(1)(b) of the Australian Human Rights Commission Act 1986 (Cth) (the AHRCA) provides that the President must consider whether to inquire into the complaint, having regard to the matters set out in section 46PH of the AHRCA, and if the President is of the opinion that the complaint should be terminated, terminate the complaint without inquiry.

Section 46PH(1)(b) of the AHRCA says that the President may decide to terminate a complaint if the complaint was lodged more than six months after the alleged acts, practices or omissions took place.

It is noted that the six month timeframe only applies to alleged acts, omissions or practices that took place after 13 April 2017.

For alleged acts, omissions or practices that took place before 13 April 2017, as is the case in this matter, the timeframe remains 12 months.

I have considered all the information that has been provided and I wish to advise that I have decided to terminate the complaint under sections 46PF(1)(b) and 46PH(1)(b) of the AHRCA.

I understand you may be disappointed by my decision and I would like to explain the reasons for my decision.

The letter separately addresses the reasons for the decision reached and does so by reference to the length of the delay in lodging the complaint; the reasons provided for the delay; and “other remedies that have been sought”. In respect to that last reason, the Commission’s letter states (without alteration):

Other remedies that have been sought

The subject matter of your complaint concerns the manner in which you were treated during your employment at the RHW, including the termination of your employment.

The documents you have provided indicate that SESLHD’s decision to terminate your employment was the subject of your 2015 proceedings in the NSWIRC, your 2016 proceedings before the FWC, your 2016 complaint to the ADB in 2016 and associated proceedings before NCAT in 2017, and your 2018 proceedings before the FCCA. The other issues you raise in the complaint also appear to have been canvassed in various forms in the above-mentioned actions. For example, in your NCAT proceedings in March 2017, you raise issues of bullying and harassment, mismanagement of your workers compensation claim and unfair performance management procedures while working at RHW. In your FCCA proceedings you also refer to workplace bullying, unfair competence assessments, demotion, interrogation, intimidation and a missing performance appraisal.

While I understand you may not be satisfied with the outcomes of these proceedings, the information before the Commission supports that the concerns raised in your complaint have been considered in the various other actions you have initiated against SESLHD and SESLHD staff.

Conclusion

Overall, after considering the above factors, I have decided that it is appropriate to terminate the complaint because it was lodged more than 12 months after the alleged acts, omissions or practices took place.

The complaint against the Midwifery Council

32    The complaint made to the Commission by Ms Clarke against the Midwifery Council was received by the Commission on 22 October 2018.

33    The Commission terminated that complaint in December 2018.

34    In its letter dated 4 December 2018, the Commission summarised the complaint made by Ms Clarke as follows:

The original complaint

The Australian Human Rights Commission (the Commission) received your complaint on 22 October 2018. In the complaint you state that you are of mixed race. You claim that the Council:

•    backdated your nursing registration for a period to assist and support the action of employees from the Royal Hospital for Women who made allegations regarding your clinical practice;

•    in September 2015, placed unreasonable conditions on your nursing registration preventing you from obtaining employment as a nurse;

•    placed you name on a National Register and incorrectly informed the public about your skills, attributes, functions and merit;

•    refused to investigate mandatory notification you made about other individuals;

•    subjected you to prejudice and bias;

•    attempted to oppress you by making you “permanently impaired”;

•    arranged an assessment in an area you were not familiar with; and

•    suspended your registration in 2017.

35    After referring to the fact that Ms Clarke had not lodged her complaint with the Commission until “some 15 months to 3 years after the alleged facts occurred”, the Commission went on to address the reasons advanced by Ms Clarke for her delay in making the complaint as follows:

Reasons for the delay in lodging the complaint

In relation to the reasons for the delay in lodging the complaint, you say that you were suffering from shock for a period and “suffered treatable physical and mental health conditions”. You also refer to “variations in mental health conditions”.

I appreciate the issues that you raise regarding your health. However, the information before the Commission indicates that since May 2015, your health circumstances have not prevented you from pursuing a range of actions against the Council and your former employer. These include unfair dismissal proceedings before the New South Wales Industrial Relations Commission in May 2015, proceedings under the Fair Work Act 2009 (Cth) in June 2016, a complaint to the New South Wales Anti-Discrimination Board in March 2016 and related proceedings before NCAT in March 2017, proceedings before the New South Wales District Court in August 2016, proceedings before the New South Wales Supreme Court in 2017 and proceedings in the FCCA in 2018. The provided information also indicates that in relation to these various proceedings you received advice from Legal Aid, community legal centres and private solicitors.

The information therefore suggests that you would have been able to make a complaint or obtain advice and assistance to make a complaint to the Commission, much closer to the time of the alleged discrimination.

36    The Commission thereafter went on its reasons as follows:

Other remedies that have been sought

I understand that it was open to you to appeal the Council’s decision of 21 September 2015 and 13 July 2017 to NCAT. In such situations NCAT can consider the evidence, including any new evidence, and make a fresh decision. Documents indicate that you appealed the Council’s decision of 13 July 2017 but NCAT dismissed your appeal and found that the conditions imposed by the Council were appropriate. NCAT noted in its decision that even if practitioners believed that an originating concern or complaint is unfounded, they must work with regulators and cooperate with investigations or assessments and undertaken to protect the health and safety of the public. While I understand you may be dissatisfied with the outcome of your appeal to NCAT, I am of the view that this process has provided you with an appropriate avenue to address your concerns about the Council’s decision and related actions.

The issues you raise in this complaint also appear to have been canvassed in other actions you have initiated against the Council in the New South Wales Supreme Court and the FCCA. For example, your proceedings in the Supreme Court refer to the Council’s action in imposing restrictions on your nursing registration and placing information on the National Register. In your FCCA proceedings you also raise issues concerning the restrictions imposed by the Council, the alleged non-investigation of mandatory notifications you made to the Council and the Council’s actions in referring you for medical assessments.

Overall, after considering the above factors, I have decided that it is appropriate to terminate the complaint because it was lodged more than 12 months after the alleged acts, omissions or practices took place.

The complaint against Ms Dale

37    In November 2018 (and revised in December 2018), Ms Clarke made a complaint to the Commission claiming that Ms Dale had unlawfully discriminated against her on the basis of subjecting her to racial abuse between 9 May 2013 and 23 July 2014.

38    The Commission terminated that complaint in April 2019. In doing so, the Commission explained that the complaint was lodged more than 12 months after the acts complained of had occurred but continued on to further explain its decision as follows:

Reasons for delay and other remedies that have been sought

The information before the Commission indicates that you have pursued a range of legal actions and proceedings against South East Sydney Local Health District (SESLHD) (which includes Royal Hospital for Women) and SESLHD staff (which includes Ms Dale). These actions include: unfair dismissal proceedings before the New South Wales Industrial Relations Commission in May 2015, proceedings under the Fair Work Act 2009 (Cth) in June 2016, a complaint to the New South Wales Anti-Discrimination Board in March 2016 and related proceedings before NSW Civil and Administrative Tribunal in March 2017, proceedings before the New South Wales District Court in August 2016, proceedings before the New South Wales Supreme Court in 2017 and proceedings in the Federal Circuit Court of Australia in 2018. The provided information also indicates that in relation to these various proceedings you received advice from Legal Aid, community legal centres and private solicitors.

I appreciate that you may not be satisfied with the outcomes that you have achieved through the abovementioned proceedings however it appears that you have already sought redress in relation to the alleged events that took place when you were working at Royal Hospital for Women in a number of different forums. It also appears that it would have been open for you to make a complaint or obtained advice and assistance to make a complaint about the alleged conduct of Ms Dale to this Commission much closer to the time of the alleged discrimination.

39    Again, consideration was given by the Commission to other proceedings pursued by Ms Clarke in which she sought to otherwise pursue her claims against Ms Dale.

40    With respect to another complaint lodged by Ms Clarke, in February 2019 the Commission wrote to Ms Clarke advising her of its “decision in relation to your claims against Ms Julie Herrick, Ms Susan Dale, Ms Annette Wright, Mr Gerry Marr, Ms Vanessa Madunic, Ms Violet Stojkova, the Nursing and Midwifery Board of Australia … and the New South Wales Nurses and Midwifery Association…”.

41    The copy of that letter in evidence, it may be noted, is a cause for concern and reservation. The pages of that letter in evidence do not seem to flow from one page to the next, at least with respect to the second and third pages. Subject to that reservation, reliance can now only be placed upon the evidence as it is.

42    In that letter, it seems relatively clear that Ms Clarke was advised that the Commission had “decided to accept as a complaint your claim against Ms Dale of race discrimination…”. The letter identified the complaint as accepted as follows:

1.    Allegations accepted – Ms Susan Dale

I have decided to accept as a complaint your claim against Ms Dale of race discrimination under the RDA in relation to your claim that:

•    Ms Dale referred you to assist and care for patients of colour because you are a woman of colour; and

•    when you were attempting to do a palate check for a neonate, Ms Dale pushed you away stating, ‘the baby is white and I am white’. You say that: ‘this was racial abuse because I was being distinguished by Susan Dale to provide care on the basis of my colour’.

43    In that same letter, the Commission did not accept the complaints made against (inter alia) Ms Herrick, Ms Wright, Mr Marr, Ms Madunic and Ms Stojkova on the basis the information provided by Ms Clarke did “not meet the requirements for a valid complaint of unlawful discrimination…” under s 46P of the Human Rights Commission Act. Claims made by Ms Clarke pertaining to alleged breaches of human rights were also not accepted by the Commission on the basis “the individuals [Ms Clarke] name are not the Commonwealth, and do not appear to be acting on behalf of the Commonwealth…”.

44    Whether it be with respect to the claim against Ms Dale which has been terminated by the Commission or the claim against Ms Dale which on the evidence presently before the Court has been accepted by that Commission but in respect to which the outcome is “unknown”, it has been assumed that Ms Clarke seeks leave to commence a proceeding in this Court against Ms Dale. If it be the case that the complaint made in December 2018 by Ms Clarke against Ms Dale (and others) has not as yet been terminated, the present application to this Court for leave would be premature. It has been further assumed that all complaints against Ms Dale the subject of the present proceedings have been terminated.

The complaints made to the Commission – an overview

45    If the complaints made to the Commission be viewed either in isolation or cumulatively, it immediately becomes apparent that:

    there is an attempt to substantially re-agitate complaints made by Ms Clarke to the Commission (and other forums) and the subject matter of the complaints sought to be agitated in this Court, if leave were to be granted.

It also becomes readily apparent that the Commission has itself:

    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.

Reasons for each of the decisions have been provided.

46    There is, with respect, no reason to question any of the decisions of the Commission to terminate the complaints.

THE REQUIREMENT FOR LEAVE

47    The requirement for leave to commence a proceeding may be found in s 46PO(3A)(a) of the Human Rights Commission Act.

48    The terms of s 46PO(3A)(a) of the Human Rights Commission Act, on their face, are unequivocal: an application “must not be made unless … the court concerned grants leave to make the application”. When referring to Workpower Inc, Logan J considered that there was a requirement “for a prior grant of leave” and that the requirement acted as “a filter”: Crocker, in the matter of Crocker [2019] FCA 432 at [11]. The regime provided for in Pt IIB is an “exclusive” one and this Court has “no jurisdiction to hear an allegation of unlawful discrimination … unless the conditions in s 46PO of the AHRC Act are satisfied”: Picos [2015] FCA 118 at [36] to [38] per Perry J.

49    Although the matter was not fully argued, Counsel on behalf of the Local Health District and the Midwifery Council adopted the commendable – but pragmatic – position of simply submitting that Ms Clarke was not precluded from seeking leave to continue those current proceedings in NSD 166 of 2019 and NSD 167 of 2019 but that leave to continue the proceedings should be refused.

50    Irrespective of whether or not leave could now be granted retrospectively, or even assuming fresh proceedings were commenced seeking leave to do so, leave should be refused.

51    Of central relevance to the grant of leave, whether such leave should have been sought prior to the commencement of the present proceedings or whether leave can now be granted to continue these proceedings, are two interrelated considerations, namely:

    whether the detailed consideration that has been given to the claims made by Ms Clarke warrant the refusal of leave; and

    whether such consideration as has been given to those claims has been denied, as argued by Ms Clarke, by any denial of procedural fairness in any of the decision-making processes.

Again, each of these contentions should be briefly addressed.

The repeated claims made

52    For present purposes, namely for the purpose of considering whether leave should be granted pursuant to s 46PO(3A)(a) of the Human Rights Commission Act with respect to:

    the proceedings against the Midwifery Council and/or the Local Health District, assuming that leave could be granted retrospectively or could be sought if fresh proceedings were to be commenced by Ms Clarke; and

    the proceeding against Ms Dale

it is not necessary – nor would it be appropriate – to conduct a review of each of the decisions which has resulted in Ms Clarke’s claims being rejected. It is sufficient to make an assessment of whether the claims sought to be pursued by Ms Clarke have each been considered and resolved by reference to their merits. But the myriad of claims made should not distract attention from the fact that (for example) on some occasions:

    a claim has been resolved; or

    has been rejected by reason of it being out of time; or

    a claim has been rejected by reason of deficiencies in the pleadings.

53    Whatever be the reason for the fate of each of the claims sought to be pursued by Ms Clarke, what is of present relevance is the fact that:

    repeated independent consideration has been given to the claims sought to be agitated, even if it be for the limited purposes of permitting a claim to continue (for example) in the Industrial Relations Commission or for the purposes of amending pleadings (in some cases with the assistance of pro bono counsel: cf. Sharmain Daisy Clarke v South East Sydney Health District (No 2) [2018] NSWCA 226 at [12]); and

    independent consideration has been given in one or other of these other proceedings to the comparability of claims agitated elsewhere in another forum.

54    Each of the decisions reached seem, on their face, to be a proper exercise of the power conferred. In the absence of reason to reach a contrary conclusion, such consideration as has already been given to the claims made by Ms Clarke would soundly warrant the refusal of leave pursuant to s 46PO(3A)(a) of the Human Rights Commission Act.

A denial of procedural unfairness & the lack of an opportunity to properly participate

55    Reason to reach a contrary conclusion, Ms Clarke submitted, was to be found in a denial of procedural fairness on those earlier occasions when the complaints were under consideration.

56    Notwithstanding the number of claims made by Ms Clarke and the manner in which those claims have been heard and resolved, Ms Clarke’s response to the case sought to be mounted against her by the Respondents was not to deny the myriad of hearings that have taken place or the prior investigations into her many claims. Her response was to simply say that in respect to each decision-making process:

    she had been denied procedural fairness; and/or

    that her health condition was such that she could not properly participate in any hearing or investigation into her claims.

Be that the decision-making process before the Industrial Relations Commission, the Supreme Court, the Midwifery Council or the other forums Ms Clarke sought to ventilate her claims, Ms Clarke’s contention was that she had not been able to properly participate. If this be correct, the outcome from any of the myriad of forums in which she has to-date pursued her claims could possibly be set aside. Ms Clarke now seeks, by the grant of leave to commence or continue proceedings in this Court, an examination into each of the factual matters which gave rise to her claims.

57    To demonstrate her complaints as to a denial of procedural fairness, and her overlapping contention that her medical condition precluded her from being able to properly participate in any prior investigation or hearing into her complaints, Ms Clarke relied upon the following four examples:

    the imposition of conditions upon her registration as a nurse. At the hearing, Ms Clarke brought to the Court’s attention a letter sent to her by the Midwifery Council, dated 18 September 2015, which informed her of a meeting scheduled later in September 2015 and which was said to have provided the impetus for the imposition of the conditions on her registration. The denial of procedural fairness, it was submitted, arose out of the non-disclosure to her of the evidence upon which the conditions were imposed. Ms Clarke further submitted that an attempt to secure the production of documents by way of a subpoena issued in defamation proceedings commenced in the District Court of New South Wales was unsuccessful;

    the implementation and application to her of the SESLHD Policy Framework for Managing Nursing and Midwifery Staff with Identified Practice Issues (SESLHDPR/270). The denial of procedural unfairness was said to include the application of the policy which was not then in existence, the “fraudulent” formulation of the policy as well as the policy being “racially applied” to Ms Clarke and the reliance upon “fraudulent” material when conducting and preparing risk assessments;

    a letter dated 2 September 2015 sent by the Local Health District to the Australian Health Practitioner Regulation Agency (AHPRA) raising “significant concerns” in relation to Ms Clarke. Those concerns were communicated to AHPRA “for your further consideration and action”. The denial of procedural fairness occurring, according to Ms Clarke, because the letter was sent in “ill faith”, that “ill faith” arising by way of inference from the “timeline” – including that the letter was sent at a point of time well after her employment had been terminated in May 2015; and

    the making of “allegations” against her which were the product of “concoction” between persons about whom she had previously complained. In her oral submissions, the “allegations” in the September 2015 notification, Ms Clarke maintained, were made without evidence. The statements made against her, she maintained, were based on “slander” which was underlined by “malice”. The denial of procedural fairness was said to be the imposition of conditions upon her registration which were unsupported by evidence and based upon allegations and slanderous material and the non-revocation of the conditions.

There was, as was accepted by Ms Clarke, an overlap in the manner in which she sought to provide these four instances of procedural unfairness and her claim that her health condition had prevented her from properly participating in prior hearings of her complaints. Each of these instances of procedural unfairness were the product, according to her, of unlawful discriminatory conduct.

58    In considering each of these four examples, it is useful to separately consider:

    the events which preceded the letter dated 6 August 2014 and the decision to suspend Ms Clarke “while the matter is further reviewed” and thereafter the decision to terminate her employment on 5 May 2015;

    the action taken after 5 May 2015, being a letter sent on 2 September 2015 by Mr Marr on behalf of the Local Health District to AHPRA; and

    the events which preceded the decision to impose conditions on her registration as a nurse, conditions being imposed on 21 September 2015 and again on 13 July 2017.

These decisions are at the core of the continuing concerns being pursued by Ms Clarke. What this overview of these events exposes is that at all material times Ms Clarke participated in the review processes which were undertaken and has pursued a variety of means to challenge these decisions. With specific reference to (for example) the Commission’s termination of the complaint made against Midwifery Council, it may be noted that the Commission, in its decision, specifically addressed a submission made by Ms Clarke as to her “mental health conditions” and observed that her health conditions did not prevent her from “pursuing a range of actions against the Council and your former employer”. Albeit an observation not directed to her ability to participate in earlier judicial and non-judicial forums where she was seeking relief, it may similarly be observed that Ms Clarke before this Court had no difficulty in articulating the bases upon which she was seeking leave.

The 5 May 2015 decision – termination

59    Without attempting to be exhaustive, from the materials now available to the Court it emerges that the decision to terminate Ms Clarke’s employment was preceded by:

    the transfer of Ms Clarke from the Operating Suite to work in the Recovery Unit at the Royal Hospital for Women. This relocation occurred after the amalgamation of the Operating Theatres at the Prince of Wales Hospital and the Royal Hospital for Women;

    a letter dated 15 January 2014 from the Royal Hospital for Women advising Ms Clarke of “issues … regarding your unsatisfactory interpersonal communication skills and failure to meet required competency standards”. A meeting was scheduled to “discuss concerns regarding your work performance and the risk assessment outcome”. Ms Clarke was further advised in the letter that she could have a “union representative or another person of your choice present as an observer at this meeting”;

    a letter dated 20 January 2014 from the Royal Hospital for Women to Ms Clarke referring to a meeting held that day “to discuss your unsatisfactory work performance and inability to meet required competency standards” and advising Ms Clarke that her duties had been restricted as a “result of the risk assessment”;

    a risk assessment undertaken in December 2013, identifying the risks as being a “[r]isk of clinical error & potential patient harm” and a “[b]reakdown of functioning multidisciplinary team”; and

    a further risk assessment undertaken in July 2014, identifying the risk as being a “[r]isk of clinical error & potential patient harm”.

A decision was thereafter taken, namely the decision communicated by:

    a letter dated 6 August 2014 from Mr Marr on behalf of the Local Health District to Ms Clarke “in relation to serious outcomes of the performance process in relation to your practice abilities at the Royal Hospital for Women”. The letter referred to “three formal assessments”, being “two internal assessments and one external assessment”. Those assessments, according to Mr Marr, revealed “serious deficits with your clinical practice”. Ms Clarke was advised that she had been “suspended with pay while the matter is further reviewed”.

The subsequent chronology of events includes:

    a letter dated 20 August 2014 from the Royal Hospital for Women to Ms Clarke advising her that an allegation had been made. The allegation was then set forth. The letter further advised Ms Clarke of an assessment carried out pursuant to SESLHDPR/270 which characterised her “practice” as “high risk”. Importantly the letter invited Ms Clarke “to comment on the allegation and finding before a disciplinary outcome is determined”; and

    a letter dated 8 December 2014 from Mr Marr on behalf of the Local Health District to Ms Clarke referring to the opportunity that had been extended to her “to comment on the allegation and finding before a disciplinary outcome is determined” and referring to a recommendation that SESLHDPR/270 “be implemented”. The letter further states that a “recommendation has been made to terminate [Ms Clarke’s] contract of employment”. The letter concludes by stating that although Mr Marr was “inclined to accept this recommendation” he was offering Ms Clarke “an opportunity to provide me with any submission you would have me take into account as to why I should not terminate your contract of employment”.

Thereafter there was:

    a letter dated 5 May 2015 from Mr Marr, on behalf of the Local Health District, to Ms Clarke advising her that Mr Marr was “inclined to accept a recommendation to terminate your contract of employment with the South Eastern Sydney Local Health District (SESLHD) on the basis that your clinical practice is unsafe and present an unacceptable risk to patients”. The letter goes on to state that Mr Marr had “decided to terminate” Ms Clarke’s employment.

60    The decision to terminate her employment was then the subject of the application made in the Industrial Relations Commission of New South Wales. In May 2015, an application was lodged with that Commission on behalf of Ms Clarke by the New South Wales Nurses and Midwives’ Association. The application was made pursuant to s 84 of the Industrial Relations Act 1996 (NSW) and claimed relief in respect to unfair dismissal. The application came before a Commissioner on 7 July 2015 for the purposes of conciliation. On that occasion the transcript records the proceeding being adjourned and later resumed when the Commissioner is recorded as saying (inter alia):

I do congratulate the parties on the work that they have put in this afternoon to come to a resolution of what is not an easy matter, and I congratulate them on the maturity they have brought to the discussions they have had.

The matter, however, came back before the Commissioner on 28 July 2015. The Commissioner was then advised by the representative of the Association that its representation of Ms Clarke would “cease as of today”. Difficulties had apparently emerged in the execution of a Deed of Release. Although it was commonly understood that agreement had been reached on 7 July 2015 to settle the application for unfair dismissal by the payment to Ms Clarke of $10,000 subject to the execution of a deed, and irrespective of whether a “firm and binding agreement” had in fact been reached, Ms Clarke was not prepared to settle on that basis. She explained her position to the Commissioner as follows:

APPLICANT: Your Honour, I’m really appreciative of the fact that we’ve come so far with the matter. Basically it would satisfy the – my understanding of the principal agreement was that we could still further move forward in trying to look at the issues that I have suffered while being in employment with the employer. I suffered a very serious injustice here and I suffered a lot of bullying and harassment, which on 05/01/2015, the employer provided a letter stating that they deny these claims. And, for me, that is not acceptable, because that was the reason why I have suffered the trauma, I suffered a mental crisis where I had to go on treatment, and I had psychotherapy and medication for this, and I am not anymore on this, on this treatment, and I had to dig very deep to be where I am today. And I don’t believe that I have reached any justice by just taking $10,000 and walking away, that was the agreement that was put forward to me. I keep getting, I’ve got two documents here, one says it’s a deed of closure, the other one says it’s a deed of release, and it didn’t make sense to me.

Ms Clarke later returned to her complaints that there had been “bullying … from the word go”. The proceeding before the Commissioner was adjourned.

61    For present purposes, and with reference to Ms Clarke’s contention that leave should be granted in these proceedings pursuant to s 46PO(3A)(a) of the Human Rights Commission Act by reason of a denial of procedural fairness and an opportunity to advance her claims in other forums due to her health conditions, what emerges from this exchange before the Industrial Relations Commission is that:

    Ms Clarke availed herself of an opportunity to seek external review of the decision to terminate her employment;

    Ms Clarke was represented, for at least part of the proceeding, by a representative from the New South Wales Nurses and Midwives’ Association; and

    when not represented by the Association, Ms Clarke nevertheless had no apparent difficulty in advancing to the Commissioner submissions as to why she was not prepared to settle her claims in return for the payment of $10,000.

There certainly is no reason to question:

    the procedural fairness of the conciliation process undertaken by the Commissioner.

It matters not for present purposes whether Ms Clarke had been misunderstood in communicating her instructions to her representative or whether a “firm and binding agreement” had been reached.

62    In respect to this decision-making chain, there is no apparent denial of procedural fairness and certainly no basis for concluding that leave should be granted pursuant to s 46PO(3A)(a) of the Human Rights Commission Act. There is no apparent lack of involvement of Ms Clarke in the decision-making process and no apparent lack of any ability on her part to fully participate in that process.

63    It should also be noted that Ms Clarke took issue with (inter alia) what she perceived to be “issues relating to procedural unfairness” in respect to the external assessment conducted in July 2014. Ms Clarke thus wrote to the Director of Operations at the Royal Hospital for Women (Ms Rathbone) in September 2014. That letter, albeit of some length, is worth repetition. It states, in relevant part, as follows:

Your letter states that the external assessment conducted on 9 July found that I displayed 7 inadequate skills and did not achieve 3 competencies and that as a result I have been placed on the SCR register.

As part of this process I have been provided with a copy of the external assessors diary of 9 July and this shows that the assessor identified over 30 ‘risks’ in my care of patients in Recovery. It is unclear whether I am also required to respond to these as well.

I strenuously deny these allegations and I am seriously concerned about the lack of procedural fairness in the conduct of this assessment process on a number of grounds.

There are a number of general issues relating to procedural unfairness:

•    it is difficult to determine how the approved framework for managing such an assessment process has been used in relation to me. I seem to have jumped to Step 9 without any advice on the prior steps;

•    despite a prior formal complaint of bullying by me regarding SN3 (S. Dale), Ms Dale was not only present at the external assessment but directly interfered in the process;

•    it is not clear whether the assessor is qualified to conduct the assessment;

•    the external assessor’s diary of 9 July shows that she directly interfered in the provision of nursing care to Recovery patients;

•    the assessment tool used in the external assessment is different to the one used for the internal assessments; ie. the internal assessments do not provide comments to the level of ‘cue’ or ‘risk’;

•    it is unclear what the relationship is (if any) between the list of ‘risks’ in the external assessor’s diary of 9 July, the elements, competencies, and domains of the framework, as well as the list of inadequate skills;

•    the external assessor is entitled to make global judgements but it is difficult to see any evidence of this level of synthesis either in the assessment or in the letter of 20 August;

•    according to the management framework, the internal assessments should have been conducted by different people. This did not occur; the NUM conducted both;

•    The letter does not indicate the relationship between these competencies and the inadequate skills. In addition there is no clear relationship between the list of inadequate skills and the domains, competencies, their elements or cues as described in Assessment Tool for the National Competency Standards for the Registered Nurse. There is no apparent level of adequate synthesis that makes sense of these relationships.

An analysis of the outcomes of the internal and external assessments from domain, competency to element and a response to the allegations regarding inadequate skills and competencies is at Attachment A. This analysis also shows that the finding of inadequate skills and competencies in the external assessment is often at odds with successful outcomes reported as part of the internal assessment process as well as successful outcomes from the provision of the in-house professional development a few months earlier.

The external assessor’s diary of 9 July lists over 30 alleged ‘risks’. It is unclear whether I need to officially respond to these allegations. Nevertheless a response to these alleged ‘risks’ is at Attachment B. Also I note there is no attempt to indicate the relationship between these ‘risks’ and the cues, elements, competencies and domains of the framework, or with the list of ‘inadequate skills’. Attachment B also includes an analysis of the relationship of the ‘risk’ to the ‘inadequate skill’ listed in the letter of 20 August.

In light of this degree of procedural unfairness, I request that I am removed from the SCR register, re-instated as a registered nurse and that my return-to-work is negotiated by a representative of the NSW Nurses’ Association.

(emphasis in original)

That which emerges from this letter is that Ms Clarke took the opportunity to both:

    make submissions as to the procedural unfairness which she considered had been brought upon her; and

    provided materials to be taken into account.

The degree of detail expressed in the September 2014 letter to the Director of Operations also denies any suggestion that Ms Clarke’s medical condition precluded her from advancing her claims in a coherent manner.

64    The criticisms made by Ms Clarke during her oral submissions as to the SESLHDPR/270 policy and the risk assessments undertaken in December 2013 and July 2014 also formed part of another proceeding commenced by Ms Clarke. In March 2016, Ms Clarke had made a complaint to the Acting President of the Anti-Discrimination Board of New South Wales. In October 2016, the Acting-President of the Anti-Discrimination Board wrote to Ms Clarke advising her that the complaint had been declined because it was perceived to be “lacking in substance”. An application for leave to bring proceedings arising out of this decision of the Acting-President was refused by the Civil and Administrative Tribunal of New South Wales in March 2017: Clarke v South Eastern Sydney Local Health District [2017] NSWCATAD 81. In refusing leave, the Tribunal member reasoned in part as follows:

Taking the Complaint at its highest

[40]    In determining whether to grant leave to Ms Clarke to proceed with her complaint, the Tribunal takes the approach of accepting Ms Clarke’s complaint at its highest. The complaint accepted for investigation by the Acting President of the ADB and ultimately declined, was that Ms Clarke had been discriminated against on the ground of disability in the termination of her employment in May 2015. There is no evidence before the Tribunal that Ms Clarke had a disability. Ms Clarke denies that she did. There is no evidence before the Tribunal that Ms Clarke’s employer presumed that she had a disability or that her employment was terminated because of this presumed disability. The Tribunal considered the document PD-270 which was the procedure under which Ms Clarke said she was performance assessed. The document contains a definitions section which includes the definition of an “impaired nurse”. The procedure was not however expressed to relate only to impaired nurses. The Respondent said it was used in relation to any nursing staff member who had performance deficits.

[41]    Accordingly, putting Ms Clarke’s complaint at its highest, the material before the Tribunal does not provide evidence of disability or presumed disability as being the reason for her less favourable treatment – being subjected to performance assessment or having her employment terminated.

The fact that Ms Clarke has been prepared to make complaints as to disability discrimination – and to pursue complaints – which she presumably knew were groundless may not necessarily throw light upon the factual foundation for the complaints as to racial discrimination presently sought to be pursued in the present proceeding. But the fact that she has been prepared to pursue claims as to discrimination in the past which she knew to be groundless, taken together with the assessment by the Commission as to the merits of the claims now sought to be pursued, provides at least a basis of legitimate concern. Of present relevance, however, is the fact that Ms Clarke availed herself of a further avenue in seeking to obtain relief with respect to the termination of her employment and in doing so relied upon, at least in part, criticism directed to the SESLHDPR/270 policy and the risks assessments which had been undertaken.

Communications with the Australian Health Practitioner Regulation Agency – 2 September 2015

65    Following the 5 May 2015 decision, Mr Marr also wrote on 2 September 2015 to AHPRA. It was this letter which was one of the starting points for Ms Clarke’s allegations that she had been denied procedural fairness. Notwithstanding the emphasis placed by Ms Clarke upon this letter, the letter on its face seems nothing other than the communication to a regulatory authority of a decision that had been taken. There has been no apparent denial of procedural fairness in the sending of that letter.

66    The 2 September 2015 letter, taken in context, it is also considered does not warrant the grant of leave pursuant to s 46PO(3A)(a) of the Human Rights Commission Act.

The imposition of conditions of registration

67    If attention is shifted to the conditions imposed on Ms Clarke’s registration as a nurse, there were two occasions when conditions were imposed, namely:

    a decision taken by the Midwifery Council on 21 September 2015 to impose five conditions, including (inter alia) a condition that Ms Clarke “must practise under the indirect or direct supervision of a registered nurse” and “must commence being supervised by a nurse manager (or equivalent) approved by the Nursing and Midwifery Council”; and

    a decision taken by the Midwifery Council on 13 July 2017 to impose two conditions, including a condition that Ms Clarke “must not work as a registered nurse until reviewed by the Nursing and Midwifery Council of New South Wales and this condition is removed”.

68    Preceding the 21 September 2015 decision there was:

    a letter sent to Ms Clarke by the Midwifery Council on 18 September 2015. That letter advised Ms Clarke of the intention of the Midwifery Council to hold a meeting to “decide whether urgent interim action (either placing conditions on, or suspending your registration) should be taken”. A meeting was scheduled to take place on 28 September and Ms Clarke as advised that the “meeting is run as informally as possible whilst maintaining a fair process”. An audio recording was to be made. The letter also set forth that attached to the letter was a “background document summarising the Council’s concerns in relation to public health and safety and a package of documents which includes the information considered by the Council”. The letter also stated that it was important for Ms Clarke to attend “this meeting to provide information and answer the delegates questions”. She was advised that she could “be accompanied by a support person”.

69    On 21 September 2015 there was:

    a “NOTICE OF INFORMATION TO BE RECORDED IN THE NATIONAL REGISTER”. It was this Notice that effected the recording on the Register of the first set of conditions imposed on Ms Clarke’s registration. The Notice, Ms Clarke contended, was not preceded by the disclosure of the evidence upon which the conditions were based.

There is nothing emerging from this material which supports any reason why leave should be granted pursuant to s 46PO(3A)(a) of the Human Rights Commission Act by any reason of any procedural unfairness. The contention made by Ms Clarke, as to there being no disclosure of the evidence or materials upon which the conditions were based, being contradicted by the information provided in the 18 September 2015 letter.

70    Prior to the subsequent decision taken in July 2017 to impose conditions, Ms Clarke:

    had attended for performance assessment on 2 December 2015, but apparently discontinued her participation during the assessment; and

    provided two medical certificates on the day prior to a performance assessment rescheduled for 17 January 2016.

The Midwifery Council then required Ms Clarke to attend a health assessment on 2 March 2016 but:

    Ms Clarke requested that the assessment be rescheduled because she was required to attend a “court matter”.

Thereafter:

    on 9 March 2017 Ms Clarke did not attend the re-scheduled health assessment and claimed that she had not received notice; and

    on 2 June 2017 Ms Clarke did not attend a further re-scheduled assessment set down for that day.

71    The July 2017 decision to impose conditions was the subject matter of an appeal to the Civil and Administrative Tribunal: Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163. In resolving that appeal, the Tribunal referred to this chronology as follows:

[5]    On 2 December 2015 Ms Clarke commenced, but did not complete, a performance assessment. Council rescheduled the performance assessment for 17 January 2016, and Ms Clarke confirmed on 6 December 2015 that she intended to attend. On 16 January 2016 Ms Clarke sought deferral of her performance assessment on the basis of her health, and supplied Council with two medical certificates from her general practitioner Dr Andrew Adams citing severe anxiety and depression (6 January 2016) and acute anxiety (15 January 2016).

[6]    In response to this material, Council referred Ms Clarke for a health assessment on 2 March 2016. Ms Clarke requested rescheduling of the health assessment to allow her to attend court proceedings, and the health assessment was rescheduled for 9 March 2016. Ms Clarke did not attend the health assessment and later indicated that she did not receive the correspondence related to it. Council rescheduled the health assessment for 2 June 2017. Between April and May 2017 Ms Clarke engaged in correspondence with Council indicating that she would not attend the 2 June 2017 health assessment; variously because of health issues, legal advice, and concurrent legal proceedings, culminating in an email of 30 May 2017 in which Ms Clarke stated that she would sue anybody requesting her to attend a psychiatric assessment.

[7]    As a result of Ms Clarke not attending the health assessment, Council held s150C proceedings.

(emphasis in original)

This is but a further instance of an opportunity being extended to Ms Clarke to participate in the decision-making process. On this occasion Ms Clarke apparently shunned the opportunity to participate in assessments which had been scheduled and re-scheduled to permit those assessments to be undertaken.

72    Left to one side is a not insignificant problem otherwise confronting Ms Clarke – namely that her present allegations of procedural unfairness should have been raised at a much earlier point of time and raised before the decision-makers whose decisions are now sought to be impugned.

73    An even more significant problem confronting Ms Clarke, however, is that her various allegations as to procedural unfairness have each been found to be lacking in any apparent merit. Indeed, on the materials presently available, there is no reason to question the procedural fairness extended to her during each of the decision-making processes. She was advised of the allegations made against her and given an opportunity to respond.

74    Such an analysis as has been undertaken does not warrant, it is respectfully concluded, leave being granted pursuant to s 46PO(3A)(a) of the Human Rights Commission Act to commence any proceeding against Ms Dale or to continue the proceedings against the Local Health District and the Midwifery Council.

RULES 16.21 & 26.01

75    The Interlocutory Applications filed by the Respondents in these proceedings also sought an order striking out the proceeding pursuant to r 16.21 of the Federal Court Rules 2001 (Cth) (the “Federal Court Rules”).

76    Rule 16.21(1) provides as follows:

Application to strike out pleadings

A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

(a)    contains scandalous material; or

(b)    contains frivolous or vexatious material; or

(c)    is evasive or ambiguous; or

(d)    is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)    fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f)    is otherwise an abuse of the process of the Court.

The counterpart provision to r 16.21 was formerly found in O 11 r 16 of the now-repealed Federal Court Rules 1979 (Cth).

77    An order was also sought for summary judgment pursuant to r 26.01 of the Federal Court Rules. That Rule provides (in relevant part) as follows:

Summary judgment

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)    the proceeding is frivolous or vexatious; or

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court; or

(e)    the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

The counterpart provision to r 26.01 was formerly found in O 20 of the now-repealed Federal Court Rules 1979 (Cth).

78    Had it not been concluded that leave to continue the proceedings against the Local Health District and the Midwifery Council is to be refused and leave to commence proceedings against Ms Dale is to be refused, it would have been further concluded that the continued pursuit of those proceedings would have been “vexatious” within the meaning of r 16.21(1)(b); “likely to cause prejudice, embarrassment or delay in the proceeding” within the meaning of r 16.21(1)(d); or an “abuse of process” within the meaning of r 16.21(1)(f) of the Federal Court Rules.

79    No elaborate exposition is required as to the reach of these rules – but some brief exposition may nevertheless be appropriate.

80    A starting point when exercising these discretionary powers is a recognition that “great caution” must be exercised before summarily bringing a proceeding to an end: cf. Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [6], (2005) 79 ALJR 1716 at 1719 per Gleeson CJ, McHugh, Gummow and Heydon JJ; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 at [44] per Greenwood, Flick and Rangiah JJ. And in exercising that “great caution” it must also be recognised that unrepresented parties present a Court with “significant difficulties”: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536-537. Kirby P, when President of the New South Wales Court of Appeal, there observed:

... the appellant being a litigant now appearing in person, care must be taken to ensure that this significant disadvantage does not deprive her of the opportunity to have her claim, if any, determined according to law. Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage. Courts should approach the peremptory termination of the litigation with special care to ensure that, within the possibly ill expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form. If this can be done, the court should avoid the summary termination of the proceedings for this will prevent the Court from examining any merits of the case, once the statement of claim is struck out. Unrepresented litigants present our courts with significant difficulties…

See also: Re Morton; Ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497 at 513-514 per Sackville J.

81    It is against this background that it is sufficient to note that, for the purposes of r 16.21(1)(f), the “categories of matters which amount to abuse of the court process are not fixed”: King v Patrick Projects Pty Ltd [2016] FCA 1110 at [26]. Gilmour J there went on to observe that they “include the bringing of multiple proceedings simultaneously in different courts relating to the same subject-matter: … as well as attempting to re-litigate issues which have already been determined in previous proceedings…”.

82    Ms Clarke, it is respectfully considered, is seeking to again re-litigate in this Court a series of complaints which have been ventilated in a number of administrative proceedings and other courts. To now permit Ms Clarke to pursue any one or other of her three proceedings would be an abuse of the processes of this Court. Although unnecessary to place any great weight upon an alternative basis, it may nevertheless be observed that the manner in which Ms Clarke has conducted the present hearings is far from desirable – even for an unrepresented litigant. Her affidavits annex copies of documents which are often duplicated and frequently incomplete. There is, with respect, a lack of any coherence in the manner in which her evidence has been presented. To even contemplate permitting the present applications to proceed to hearing in their present form would be likely to cause the Respondents’ “prejudice, embarrassment or delay” within the meaning of r 16.21(1)(d) of the Federal Court Rules. Her submissions made during the course of the hearing, however, stand in contrast and had a commendable degree of clarity to them which much aided the resolution of her applications, albeit unsuccessfully to her.

83    Had it been necessary to resolve the present submission, the pleadings in all three proceedings would have been struck out pursuant to r 16.21(1)(b), (d) and/or (f) of the Federal Court Rules.

CONCLUSIONS

84    The variety of ways in which Ms Clarke has sought to vindicate her claims over the years has been set forth. Of itself, the list of the claims and the manner in which they have been resolved provide a very substantial basis upon which a conclusion can be reached that there is no reason to question the adequacy of the opportunities extended to Ms Clarke to have her complaints against the Local Health District, the Midwifery Council and Ms Dale exposed to repeated independent scrutiny. The basis upon which Ms Clarke now contends that she has been denied procedural fairness and a proper opportunity to ventilate those claims by reason of her medical condition has been rejected.

85    Even if the myriad of other means whereby Ms Clarke has sought redress over the years be left to one side, and if attention be confined to the decisions of the Commission itself, leave to commence (or continue) a proceeding in this Court would have been refused. There is nothing on the face of the materials considered by the Commission, or in the manner in which the Commission investigated the complaints made, which would indicate that it is in the “interests of the administration of justice” (cf. WorkPower Inc [2018] FCA 2083 at [31]) to now grant leave. Even though the “bar” imposed by s 46PO(3A) may not be set “particularly high”, and even though the Commission terminated many of the complaints by reason of their being made outside the time prescribed, consideration has been given by the Commission to the subject-matter of each of the complaints. Such consideration as has been given to the complaints cannot be entirely placed to one side by this Court. The decisions of the Commission, and the reasons provided, may legitimately be taken into account by this Court when exercising the discretion to grant or refuse leave. The question posed by s 46PO(3A) is whether an applicant seeking leave has made out a case for leave being granted; the question is not whether there is a reason why leave should be refused.

86    In reaching these conclusions, the caution voiced by Mortimer J in WorkPower Inc [2018] FCA 2083 at [39] has been heeded – the task presently being undertaken is to consider whether leave should be granted so as to permit Ms Clarke an opportunity now “make” the applications to this Court which she wishes to pursue; it is not the task presently being undertaken to conclusively resolve those claims. It is respectfully considered that there is no basis upon which leave should be granted.

87    Irrespective of the manner in which those many other claims have been made and resolved, it has been concluded that the proceedings commenced against the Local Health District and the Midwifery Council were each commenced contrary to the constraints imposed by s 46PO(3A) of the Human Rights Commission Act.

88    Assuming there be power to now grant leave, leave should be refused to continue the proceedings against the Local Health District and the Midwifery Council or to commence fresh proceedings.

89    It has further been concluded that leave now sought to commence the proceeding against Ms Dale should be refused.

90    It is unnecessary to resolve the submission advanced by Counsel for the Respondents that leave should be refused by reason of “delay”, this is irrespective of whether that delay now sought to be relied upon is the delay by Ms Clarke in making the various complaints to the Commission or whether that delay is the delay by Ms Clarke in seeking leave to commence (or continue) the proceedings in this Court.

91    Finally, it should also be noted that any submissions received after the hearing, or emails sent by one or other of the parties to the Registry which appeared to be an attempt to make further submissions, which were not the subject of leave granted by the Court have not been considered.

92    Costs should follow the event, such that Ms Clarke should pay costs in each of the three proceedings.

THE ORDERS OF THE COURT ARE:

In proceeding NSD 166 of 2019:

1.    Leave pursuant to s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) is refused.

2.    The proceeding is dismissed.

3.    The Applicant in the proceeding, Ms Clarke, is to pay the costs of the Respondent, either as assessed or agreed.

In proceeding NSD 167 of 2019:

1.    Leave pursuant to s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) is refused.

2.    The proceeding is dismissed.

3.    The Applicant in the proceeding, Ms Clarke, is to pay the costs of the Respondent, either as assessed or agreed.

In proceeding NSD 691 of 2019:

1.    Leave pursuant to s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) is refused.

2.    The Applicant’s Interlocutory Application filed on 9 May 2019 is dismissed.

3.    The proceeding is dismissed.

4.    The Applicant in the proceeding, Ms Clarke, is to pay the costs of the Respondent, either as assessed or agreed.

Associate:    

Dated:    1 November 2019