Federal Court of Australia

Clarke v South Eastern Sydney Local Health District [2020] FCA 1616

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal is refused.

2.    The applicant is to pay the costs of the respondent, as agreed or taxed.

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

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal is refused.

2.    The applicant is to pay the costs of the respondent, as agreed or taxed.

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

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal is refused.

2.    The applicant is to pay the costs of the respondent, as agreed or taxed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    This is an application for leave to appeal from the judgment in Clarke v Nursing and Midwifery Council New South Wales [2019] FCA 1782, which addressed applications in three proceedings instituted in this Court under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

2    The applicant trained as a nurse in South Africa in 1994, and was first registered as a nurse in Australia in 2003. In 2011 the applicant commenced work for Royal Hospital for Women (part of the South Eastern Sydney Local Health District). It appears that during 2013 and 2014 some concerns were raised as to her competence. In May 2015, the applicant’s employment at the Royal Hospital for Women was terminated. Conditions were later imposed upon her registration as a nurse by the Nursing and Midwifery Council of New South Wales. As the primary judge described, the applicant “has thereafter pursued a host of avenues seeking redress for what she sees as wrongs committed against her”: [4].”

3    These proceedings were against three respondents: the Nursing and Midwifery Council New South Wales (the “Midwifery Council”); the South Eastern Sydney Local Health District (the “Local Health District”) and Ms Dale, who was described as being “an ex-employee for the South Eastern Sydney Local Health District”. The proceedings alleged, in essence, that the applicant had been discriminated against, in particular, under the Racial Discrimination Act 1975 (Cth) and the Disability Discrimination Act 1992 (Cth). Interlocutory applications by the applicant and the respondents sought orders inter alia, for the applicant to be granted leave to commence the proceedings under s 46PO of the AHRC Act, and by the respondents, that the proceedings be struck out or summarily dismissed. All applications were considered in the one hearing.

4    The primary judge concluded that (1) leave pursuant to s 46PO(3A) to commence the proceedings against the Local Health District and the Midwifery Council should have been sought prior to the commencement of those two proceedings, but assuming that it was not necessary to commence fresh proceedings and that leave to continue those proceedings could be sought, leave was refused and the proceedings against those respondents were dismissed; and (2) leave to commence the proceeding against Ms Dale was refused and those proceedings were also dismissed.

5    The application seeks leave to appeal from those orders.

6    For the reasons detailed below, leave is refused in relation to each application.

The judgment below

7    The primary judge considered the relevant legal principles to the application of the issues to be determined and there is no suggestion that there is any error in respect to those principles.

8    These proceedings have a long history, including many proceedings instigated by the applicant in other Courts and Tribunals directed to the same underlying factual complaints (although the individual proceedings may have related to only part of the complaints made). This history is detailed by the primary judge at [24]-[44]. That included a recitation of aspects of the reasons given in relation to some of those proceedings.

9    Thereafter the primary judge concluded at [53]-[54]:

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.

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.

10    Having addressed the history of the proceedings, the primary judge identified that procedural fairness was a significant aspect of the applicant’s argument. In that respect the primary judge summarised as follows at [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.

11    The primary judge thereafter provided a detailed analysis of the applicant’s submissions. He did so by referring to the examples she identified in support of her submission. In doing so the primary judge recited aspects of the letters, transcripts and reasons in respect to some of the complaints.

12    The primary judge concluded at [73]-[74]:

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.

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.

13    Further, at [84]-[86] the primary judge stated:

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.

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.

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.

14    The primary judge also concluded that the proceeding would have been struck out pursuant to r 16.21(1)(b) and (d) and/or (f) of the Federal Court Rules 2011 (Cth). The primary judge concluded at [78] and [83]:

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.

…

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.

Principles: Leave to appeal

15    The discretion to grant leave to appeal is an unfettered one, with each case being determined on its merits. Nonetheless the discretion is informed by well-established principles including that generally an applicant must establish: (1) that, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant it being reconsidered; and (2) that substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Décor Corporation) at 398-400; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 (Johnson Tiles) at [44]; Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [26]-[30]. The two factors are cumulative and bear upon one another: see Décor Corporation at 398-399; Nationwide News Pty Limited v Rush [2018] FCAFC 70 at [3]. When considering the grant of leave a distinction has been recognised between a “common interlocutory decision on a point of procedure”, and a decision determining a substantive right, where leave will more readily be granted: Décor Corporation at 400.

16    This Court must exercise the power to grant leave to appeal in a way that best promotes the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth), being to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: Nationwide News Pty Limited v Rush [2018] FCAFC 70 at [2]; Bellamy’s Australia Limited v Basil [2019] FCAFC 147 at [6].

17    The decision being challenged is a discretionary one. It will not be enough to show that the exercise of discretion under challenge could have been different, such that for the grant of leave to appeal, reasonably arguable error must be established in accordance with House v The King (1936) 55 CLR 499 at 504-5. It is necessary for an applicant to demonstrate error in the orders under challenge, and not merely the reasons for decision: King v Lintrose Nominees Pty Ltd [2001] VSCA 140; (2001) 4 VR 619 at [22]; and Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 371 ALR 545 at [3].

18    The evaluation of the prospects of success of the proposed appeal grounds is conducted “at a reasonably impressionistic level” and enquires whether a ground “is sufficiently arguable” or “has reasonable prospects of success”: EBT17 v Minister for Home Affairs [2019] FCA 200 at [4] citing MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63]; Snowside Pty Ltd as trustee for the Snowside Trust, in the matter Boart Longyear Ltd [2019] FCA 2159 at [58].

19    The decision being challenged relates to the application for leave pursuant to s 46PO(3A) of the AHRC Act to commence proceedings. As is apparent from the reasons of the primary judge, reliance was placed on James v WorkPower Inc [2018] FCA 2083 (James v WorkPower Inc) which addressed the applicable principles for such an application. Mortimer J considered the history of the provision and the context in which it now appears, and concluded at [37]-[38]:

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.

20    As Mortimer J concluded at [39]:

…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.

21    These principles have been repeatedly applied by this Court: e.g. Matthews v Markos [2019] FCA 1827; Jones v Westpac Banking Corporation [2020] FCA 238; Ryan v Commissioner of Police, New South Wales Police Force [2019] FCA 1607; Rossi v Qantas Airways Ltd (No 2) [2020] FCA 1080; Budini v Sunnyfield [2019] FCA 2164; Wilson v Britten-Jones (No 2) [2020] FCA 1290.

Preliminary issue

22    Before addressing the application for leave to appeal it is appropriate to record that the applicant filed interlocutory applications in these matters on 12 May 2020 with supporting affidavits dated 12 May 2020, which were heard on 5 June 2020 at which time the applicant made oral submissions in support of the orders sought. They related to each of the underlying three proceedings.

23    The orders sought by those applications were refused on 5 June 2020. The first two orders sought “the order be granted to appeal” the primary judge’s decision on the basis that it was affected by mistakes of fact and that the applicant’s AHRC complaints be determined before this Court. Those orders could not be interlocutory orders to this leave application, but are the orders sought in relation to the application for leave to appeal. The third and fourth orders sought related to leave to present evidence of all the errors in the materials provided by the respondents to the primary judge to support the application that an order be granted that Hicksons Lawyers be recused from these proceedings. In oral submissions the applicant contended that she has instituted proceedings against Hicksons Lawyers and the other respondents in other courts alleging misconduct in the various proceedings, some of which the applicant appeared to contend, may relate to this matter. Counsel for the respondents submitted that there have been no findings of impropriety or misconduct by Hicksons Lawyers in any of the proceedings commenced by the applicant against it or its employees. As explained to the applicant there is no basis to make such an order. That she has made allegations against Hicksons Lawyers is something for them to consider, but it does not provide a basis in this case that they be prevented from acting.

24    I note that during the course of the hearing the applicant made it plain she intended to argue the matter herself and was content to do so.

25    I note also that both before and after the hearing of the interlocutory application the applicant sought leave to issue a number of subpoenas to persons involved in the respondents directed to providing documents and/or to give evidence in relation to factual matters in relation to her underlying complaints. Such evidence, not before the primary judge, is not relevant to the issues in these proceedings, nor is there a basis for any witnesses to give evidence. Leave was not granted to issue the subpoenas.

The proceedings for leave to appeal

26    This application was heard on the same day as applications by the applicant for leave to appeal from various judgments in the Federal Circuit Court which bears some factual overlap: see Clarke v Nursing and Midwifery Council NSW [2020] FCA 1617 (Clarke v Nursing and Midwifery Council NSW). Nonetheless each matter addressed has been considered separately.

27    In respect to these proceedings, a Schedule of Evidence which listed the material before the primary judge has been provided. It was necessary to do that task to ensure that the material before me was that before the primary judge. That was particularly important in this case because leading up to this hearing the applicant had repeatedly provided material to this Court which has no bearing on the issues to be determined in this application.

28    The applicant contended during the hearing that she had not received the Schedule of Evidence relating to this case (although she had in respect to the proceedings for leave to appeal from the Federal Circuit Court referred to above, Clarke v Nursing and Midwifery Council NSW). As a result, the applicant made a claim of a lack of procedural fairness. However, it is plain that the email the respondents sent to the Court which attached the Schedules of Evidence in respect to both sets of proceedings copied the applicant, as did other emails referring to the Schedules.

29    In any event, I have had regard, inter alia, to the affidavits and submissions filed by the applicant before the hearing before the primary judge. The applicant is plainly aware of that material. There was no denial of procedural fairness.

Consideration

30    The grounds on which leave to appeal is sought, as set out in the application for leave in respect to each matter, can be described as follows:

(1)    the judgment and orders are affected from actions of miscarriages of justice under the Criminal Code Act 1995 (Ground 1);

(2)    the judgment and orders are affected by fraudulent conduct and statements made in the summary dismissal applications by the respondents (Ground 2);

(3)    the affidavits and submissions in the application for dismissal were “defect[ive]” and “vague” (Ground 3);

(4)    An error of law [in that] termination of the complaints by the President was made under section 46PH(1)(b) and the respondents submitted false and misleading information when it was submitted by the respondents that termination of the complaint was under s 46PH(1B)(b) (Grounds 4 and 5);

(5)    Ms Stojkova, by her affidavits in each of the proceedings “actioned a miscarriage of justice” (Ground 6).

31    The applicant has filed three sets of written submissions, one for each matter, in which further grounds of appeal were alleged. The complaint, which was common to each matter was an allegation that the applicant was denied procedural fairness below because, amongst other things, all the matters were heard together so that the interlocutory applications were not determined; the matters were separate causes of action and the applicant was denied her rights in respect to legitimate claims which is a breach of her fundamental human right to defend the allegations made about her; the matters were set down only for case management hearings and she was denied the proper conduct of the proceeding; and that the respondents submitted false and misleading information to the Court. In respect to the proceedings the applicant also complained of procedural unfairness by the respondents relying on an affidavit of Ms Stojkova.

32    Two observations can be made.

33    First, much of the applicant’s submissions, both written and oral were directed to the merits of what she alleges as her treatment by the respondents over the years, and not to establishing that the reasons for the discretionary judgment of the primary judge or the orders made, are such as to warrant the granting of leave to appeal. The submissions included matters which were not before the primary judge, and address, amongst other things, other proceedings instituted by the applicant after these proceedings. There were repeated unsubstantiated allegations made about the respondents and their conduct of the matter which appear generally to be based on the fact that they disagree or oppose the submissions/course of action that the applicant seeks to advance. As noted by the primary judge, there is no evidence in support of those allegations.

34    Second, as noted above, the primary judge detailed the history of the proceedings which relevantly included the prior proceedings instituted by the applicant and the various complaints that had been made in various forums. Related to that, the primary judge also detailed in relation to those proceedings the examples relied on by the applicant in support of her submission as to the denial of procedural fairness, which included reciting letters sent and transcripts of some proceedings. With two limited exceptions there was no suggestion that the tables setting out the proceedings in other forums in the primary judge’s reasons were inaccurate. First, a proceeding was incorrectly attributed to the AHRC when it was a proceeding before the Anti-Discrimination Board, but the fact of the proceedings and the relevant respondents was not in issue. Second, a date on which one of the proceedings was commenced was said from the bar table to be a mistake. Nothing was identified as having flowed from that. The applicant has not challenged the accuracy of the substance of the primary judge’s factual summary. It could not be reasonably arguable that the primary judge’s findings as to the previous proceedings were not open to him. Against that background I turn to the grounds of appeal, which as noted above, apply to all three matters.

35    In so far as the applicant now alleges a denial of procedural fairness in the hearing of this matter below, a transcript of that hearing is inconsistent with her claims.

36    The applicant complied with the timetable for the filing of material leading up to the hearing of the matters, and it is plain that the applications were listed to be heard on the day they proceeded. No submission was raised by the applicant in that hearing that she did not expect to be arguing the matter, or that she was not in a position to do so. At the outset of the proceedings when each party was identifying the evidence on which they relied, the primary judge said that the evidence for one case would also be evidence in the others. The applicant accepted that without any opposition. The affidavits relied on by the respondents were read, and the applicant stated she had no objection to them.

37    It was also plain that the hearing related to all three matters. The applicant presented oral submissions in support of her applications. The applicant did so clearly: she submitted at the outset of her submission that her argument “rested” on “two agendas”, first, procedural fairness in the previous handling of the matters, and second, in relation to her health issues. The applicant then proceeded to make submissions addressing those aspects. The applicant took the primary judge though various documents attached to her affidavits which she submitted supported her case. The applicant was given a full opportunity to do so. The applicant concluded her submissions in chief by saying “I rest my case. That’s about it at the moment”. The primary judge waived the requirement for the applicant to file an application for leave under s 46PO, and permitted the applicant to make an oral application in that respect. It followed that the primary judge considered the question of leave to commence the proceedings in each case.

38    Although the applicant now makes repeated assertions that she was denied procedural fairness, the applicant does not identify what she would have put in submissions, but was not given an opportunity to do. That the applicant might in hindsight have wished she had referred to additional matters is not a denial of procedural fairness.

39    Although the primary judge was critical at [82] of the applicant’s conduct of the matters leading up to the hearing describing it as “far from desirable – even for an unrepresented litigant,” as to the hearing itself he observed, “[h]er 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.”

40    There are two specific matters in respect to the allegation of procedural fairness to address.

41    First, the applicant contended that her interlocutory applications should have been heard separately, and that the applications for leave to appeal before the primary judge should each have been heard separately. I note that some of the orders the applicant sought in her interlocutory application were final orders. There was no complaint at the hearing that the matters ought not to be dealt with in the same hearing, and the applicant has not identified any error that has occurred as a result of the matters being heard on the same occasion. Indeed, given the obvious and clear overlap between the matters it was plainly reasonable to address them in the one hearing. There is nothing in the reasons that reflects that the primary judge did not appreciate that the matters were separate. That said, there is obvious overlap between the proceedings which could not be avoided by hearing the matters separately. I note that the applicant did not suggest that the leave to appeal hearing in these matters should be heard separately from each other or from her other leave to appeal applications in relation to the Federal Circuit Court matters.

42    Second, the applicant complained that material she had not seen was provided to the primary judge at a case management hearing at which she was not present, after the hearing of the applications. At the end of the hearing before the primary judge, his Honour requested that the respondents provide a folder of material which contained only those documents referred to by the parties during the oral submissions. There was also a request to provide copies of all the AHRC documents in the evidence that related to the three proceedings. On 3 June 2019 the respondents’ solicitors, copying in the applicant, emailed the Court to request that the matter be listed for a case management hearing because the applicant would not agree to the content of the folder. On 3 June 2019, the Court notified the parties that the matters had been listed for case management hearing on 5 June 2019, with the original email from the respondents being part of the email chain. On that day the applicant did not appear. The transcript of the hearing reflects that it started 16 minutes after the listed time, no doubt to provide an opportunity for the applicant to arrive if she were running late. At the hearing two folders of material were provided: one containing the AHRC material; and one containing the documents referred to during the oral submissions. In addition, the respondents provided an amended table of judicial proceedings (the amendment being the addition of one footnote). The primary judge made orders for the material to be sent to the applicant, which the respondents did.

43    The applicant contended that she was not aware of the case management hearing on 5 June 2019 and had not been served with the material in the folders or the table of judicial proceedings.

44    Dealing with each separately, the applicant contended that information in the table was not correct, that the information is “inconsistent with the facts”, that the material in the table was not relevant to the application before the primary judge, that she had not been provided with it and if she had been she would have commented on it. The respondents conceded the amended table had not been provided to the applicant before that case management hearing but submitted that it only contained one additional footnote and the original table had been provided prior to the hearing of the leave application before the primary judge. It was submitted that the applicant had made detailed written submissions on the table which were before the judge. That the applicant had been provided with the original table and had made detailed submissions about matters in it, is plainly correct. Indeed, at the hearing before the primary judge the applicant confirmed she had received the tables relied on by the respondents. It appears that the applicant’s submission about the matters in the table is the basis of the primary judge’s observation at [56] that the applicant did not take issue with the fact that prior claims had been made by her on other occasions, but challenged them on the basis of a denial of procedural fairness. That reflects her written submission. Paragraphs [55]-[74] of the reasons then reflect a detailed consideration of the submissions. The only difference in the amended table of judicial proceedings appears to be the addition of one footnote which was not a matter of any substance. The applicant’s submission that she had been denied an opportunity to comment on the content of the table is incorrect.

45    It is timely also to note that although not an appeal ground, the applicant submitted that the other proceedings she had instituted which were referred to in the tables and the reasons of the primary judge were irrelevant and made her look frivolous or vexatious. Given the considerations relevant to the grant of leave under s 46PO (and the respondents’ application to strike out the proceedings), that the applicant has taken other proceedings in relation to the matters which are the subject of the application for leave, is a relevant consideration. I note also the applicant contended that these proceedings were different from those listed in the tables as these related to discrimination. However, the reasons reflect such proceedings had occurred elsewhere and that these respondents have been the subject of claims by the applicant in other proceedings. When regard is had to the content of the three applications before the primary judge and the underlying complaints to the AHRC it is apparent that these complaints encompass grievances in respect to her employment as a nurse and subsequent registration issues. They relate to matters which are alleged to have occurred in 2013-2015. Given the considerations relevant to the grant of leave under s 46PO (and the respondents’ application to strike out the proceedings) that the applicant has taken other proceedings in relation to that subject matter is a relevant consideration.

46    The primary judge at [29] concluded that:

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.

47    His Honour thereafter referred to some of these matters in more detail, and those findings have not properly been the subject of challenge. It is not reasonably arguable that the other proceedings were not relevant to the task before the primary judge.

48    As to the folders of material provided at the case management hearing, as noted above, the respondents requested that the matter be listed because the applicant would not agree to the contents of the folders. Contrary to the applicant’s contention, the obvious inference is that she was provided with the material that the respondents’ proposed to include in the folders before the request was made. The respondents also informed this Court of the dates and contents of some email correspondence with the applicant leading up to the request for a listing that bears that out.

49    The applicant contended that there should have been additional material in the folders and she was denied an opportunity to include that material. A consideration of the folders, copies of which were before this Court, reflect that they appear to be the AHRC documentation and the documents referred to during the oral submissions, as requested. The applicant’s complaint that the AHRC documentation included material which did not assist her case, is not a proper basis of complaint. Any material that the applicant might wished to have added to the folders fell outside the limited scope of what the primary judge requested. The applicant has not pointed to any error of substance in the material (the content of one folder being material taken from her affidavits), or to any matter which purportedly effected the conclusion of the primary judge. That the applicant’s original material may have been deficient is not a proper basis of complaint. That the applicant wished more material to be included in the folder as it related to the “prospects and merits” of her case, is also not a proper basis of complaint.

50    There is no properly arguable basis to contend that there was a denial of procedural fairness in the court below. The submissions of a denial of procedural fairness in the Court below are not a basis on which leave to appeal could be granted.

51    In relation to ground 1, which alleges a miscarriage of justice, it is unclear what is being referred to and the reference to the Criminal Code is misplaced. I assume that this is a complaint about the result of the hearings before the primary judge. That is, because leave was denied, a miscarriage of justice has occurred. The applicant has not established this as reasonably arguable.

52    In relation to ground 2, the applicant appears to allege fraudulent conduct on the part of the respondents in making the application. This appears to be no more than a complaint about the respondents making the applications they did because the applicant disagrees with the factual matters and submissions made in support. With respect to the applicant, there is no proper basis before this Court to assert that there was any fraudulent conduct by the respondents in relation to the proceeding before the primary judge. That the applicant disagrees, and vehemently so, with the conduct of the proceedings by the respondents does not, without more, make the conduct fraudulent. It is not fraudulent to seek to have the proceedings summarily dismissed or struck out. Moreover, the applicant does not identify what effect this purportedly had on the reasons of the primary judge bearing in mind that, as noted at [14] above, the finding that the pleadings would have been struck out was made as an alternative to the finding that leave was refused to commence the proceedings.

53    In relation to ground 3, no complaint was made by the applicant at the hearing about the affidavits, and they were admitted without objection. The affidavits were limited, and by and large factually set out the history of the proceedings, and provided decisions made.

54    In relation to grounds 4 and 5, the applicant alleged there was an error in respect to the basis of the termination by the AHRC, suggesting that the respondents had submitted erroneously that the termination of the complaint was under s 46PH(1B)(b). However, the primary judge stated at [28] that none of the complaints to the AHRC were terminated pursuant to ss 46PH(1B)(b) or 46PH(1)(h) of the AHRC Act. This was also evident from the table of AHRC complaints, at [28]. There is no arguable basis to these grounds of appeal.

55    In relation to ground 6, there is no basis to assert that the respondents were not entitled to rely on the affidavit of Ms Stojkova. That the applicant has taken proceedings against her is not a proper basis. As noted above the allegations in relation to procedural fairness do not provide a proper basis on which to grant leave.

56    The applicant’s grounds do not provide a proper basis on which to grant leave to appeal the decision of the primary judge.

57    Dissatisfaction with the outcomes of the proceedings, which is the fundamental proposition underlying the submissions, is not a sufficient basis for the grant of leave.

58    I note at this stage that after the completion of the hearing the applicant sent many emails to the Court, many of which appeared unrelated to these proceedings. The applicant was not given leave to file any further submissions or material in relation to this matter. Therefore, any material and emails received by the Court after the hearing which attempted to reargue this matter have not been considered: see for example, Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246 at 258; BPL20 v Minister for Home Affairs [2020] FCA 1207 at [43].

59    The applicant has not established that there is sufficient reason to doubt the judgment of the primary judge. That is sufficient to dispose of this application.

60    In any event, the applicant also has not established that, supposing the decision to be wrong, refusal of leave is likely to result in substantial injustice in the context where there is no sufficient reason to doubt the judgment. The basis on which the primary judge refused leave also tends against that, as does the fact that his Honour concluded that had leave been granted the proceedings would have been struck out under r 16.21(1)(b), (d) and/or (f) of the Federal Court Rules.

Conclusion

61    In relation to each matter leave to appeal is refused, with costs.

Associate:

Dated:    6 November 2020