Federal Court of Australia

Clarke v Health Care Complaints Commission [2024] FCA 753

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed in part.

2.    Order 2 made by the primary judge on 11 October 2023 be varied to provide as follows:

Pursuant to section 239(2)(b) of the Act, the Applicant, Ms Sharmain Daisy Clarke, is prohibited from instituting proceedings in the Federal Circuit and Family Court of Australia against, or relating to, the Health Care Complaints Commission, its staff, consultants, executive officers and agents in relation to any matter arising from the Applicant’s professional practice.

3.    The appeal be otherwise dismissed.

4.    The appellant pay the respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

NICHOLAS J:

INTRODUCTION

1    Before me is an appeal from a judgment of the Federal Circuit and Family Court of Australia given on 11 October 2023 (“the Primary Judgment” or “PJ”). This is one of many proceedings heard by various Australian courts and tribunals relating in one way or another to determinations made as to the appellant’s capacity to carry on her profession as a nurse and her registration as a nurse.

2    In the Primary Judgment, the primary judge dealt with an application by the respondent (“the HCCC”) under s 239 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the Act”) for the dismissal of the proceeding below and injunctive relief.

3    Section 239 relevantly provides:

239    Making vexatious proceedings orders

(1)    This section applies if the Federal Circuit and Family Court of Australia (Division 2) is satisfied:

(a)    a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

(b)    a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.

(2)    The Federal Circuit and Family Court of Australia (Division 2) may make any or all of the following orders:

(a)    an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

(b)    an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

(c)    any other order the Court considers appropriate in relation to the person.

…

(4)    The Federal Circuit and Family Court of Australia (Division 2) may make a vexatious proceedings order on its own initiative or on the application of any of the following:

…

(c)    a person against whom another person has instituted or conducted a vexatious proceeding;

…

(5)    The Federal Circuit and Family Court of Australia (Division 2) must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

…

(7)    For the purposes of subsection (1), the Federal Circuit and Family Court of Australia (Division 2) may have regard to:

(a)    proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

(b)    orders made by any Australian court or tribunal; and

(c)    the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

4    The Act defines a vexatious proceeding in s 7 as including:

(a)    a proceeding that is an abuse of the process of a court or tribunal; and

(b)    a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c)    a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d)    a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

5    The primary judge found, having regard to the definition of a vexatious proceeding under the Act, that the appellant was a vexatious litigant who had frequently instituted or conducted vexatious proceedings in Australian courts and tribunals. The primary judge dismissed the proceeding below, finding that the proceeding was an abuse of process.

6    The orders made by the primary judge also included an order prohibiting the appellant from instituting proceedings against, or relating to, the HCCC, its staff, consultants, executive officers and agents in relation to any matter arising from her professional practice. Order 2 made by the primary judge was in these terms:

Pursuant to section 239(2)(b) of the Act, the Applicant, Ms Sharmain Daisy Clarke, is prohibited from instituting proceedings against, or relating to, the Health Care Complaints Commission, its staff, consultants, executive officers and agents in relation to any matter arising from the Applicant’s professional practice.

7    The appellant was also ordered to pay the HCCC’s costs of the proceeding.

8    On 10 November 2023, the appellant filed an application for an extension of time to seek leave to appeal, and for leave to appeal, to this Court. An extension of time in which the appellant could file a Notice of Appeal from the Primary Judgment was granted on 13 February 2024. It is accepted by the HCCC that the appellant was entitled to appeal as of right, and that the grant of leave was not necessary.

9    For the reasons that follow, the appeal should be allowed in part but only for the purpose of correcting what appears to me to be a slip affecting order 2. The terms of that order are not limited to proceedings in the Federal Circuit Court and Family Court of Australia and the restraint imposed therefore travels beyond the limits of s 239(2)(b) of the Act. Subject to order 2 being varied to correct the slip, the appeal should be otherwise dismissed.

EVIDENCE OF PRIOR PROCEEDINGS

10    Annexure A to the Primary Judgment is a chronology prepared by the HCCC setting out the factual and procedural history of proceedings commenced by the appellant in various Australian courts and tribunals (“Chronology”). Although the primary judge incorporated the Chronology into her judgment, it is apparent from the transcript of the proceeding below that her Honour told the parties at the time she received the Chronology that she would treat it as an “aide memoire” only. Counsel for the HCCC accepted that, at the hearing before the primary judge, the HCCC sought to deploy the Chronology as an aide memoire and not as evidence. Accordingly, the appellant was entitled to proceed on the basis that the Chronology was not evidence, and that the evidence concerning the other proceedings to which she was party was contained only in the evidence that was tendered by the HCCC, which primarily consisted of a bundle of copies of judgments and other court documents marked by the primary judge as Exhibit 1.

11    Her Honour had regard to the prior proceedings referred to in the Chronology. However, while the effect of s 239(7) of the Act is that proceedings instituted are relevant to a Court’s consideration of whether to make an order under s 239(2) of the Act, it does not obviate the need for evidence of the prior proceedings. In this case the primary judge had evidence of some but not all of the various proceedings referred to in the Chronology. In fact, Exhibit 1 included only a small number of the various judgments referred to in the Chronology.

12    Section 37AO(6) of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) is equivalent to s 239(7) of the Act. It has been suggested that for the purposes of s 37AO(6) the Court may have regard to judgments handed down in prior proceedings as “authorities”: Barkla v Allianz Australia Insurance Limited [2018] FCA 2070 at [54] per Charlesworth J. I respectfully disagree. When determining whether to make an order under s 239(2) of the Act or an equivalent section, the Court may have regard to previous proceedings to establish the involvement of the relevant person in such proceedings and their conduct of those proceedings. Referring to a judgment for this purpose is quite distinct from referring to a judgment as a legal authority. Such judgments may be admissible as evidence of “the outcome of the proceedings, and the course they had taken, and to record the person’s conduct of those proceedings”: Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30 (“Fokas”) at [66] per Wheelahan J. However, unless admitted into evidence, or unless the Court is entitled to take judicial notice of their existence in accordance with s 144 of the Evidence Act 1995 (Cth) (“Evidence Act”), judgments such as those relied on by the HCCC in this case may not be relied on in support of an order under s 239(7) of the Act.

13    The appellant relied on the fact that the Chronology itself was not tendered by the HCCC in the proceeding below. In her oral submissions, she took issue with her Honour’s incorporation of the Chronology into the primary judgment. The crux of her complaint appeared to be that the HCCC was not a party to many of the proceedings listed therein. While the Chronology contained hyperlinks to various decisions, the HCCC did not contend that any of those decisions were in evidence before her Honour apart from the relatively small number contained in Exhibit 1. Yet, it is apparent from the primary judge’s reasons that she treated the Chronology as evidence of the existence of the prior proceedings and the appellant’s involvement in them. This was an error.

14    Following the conclusion of the hearing of the appeal, the parties returned at my request for a further hearing to address the question whether the HCCC should be permitted to tender the judgments referred to in the Chronology but not included in Exhibit 1 pursuant to s 27 of the Federal Court Act or whether, in the alternative, it was open to the Court to take judicial notice of their existence in accordance with s 144 of the Evidence Act. At the further hearing, the HCCC tendered a bundle of the decisions referred to in the Chronology, including those that were not contained in Exhibit 1. That bundle was admitted by me provisionally and marked Exhibit 2. Exhibit 2 in the appeal also included two decisions which were handed down following the conclusion of the hearing below.

15    The appellant objected to the tender. She said, firstly, that she would suffer serious prejudice if I were to allow the HCCC to tender the bundle in the appeal. She also submitted again that the judgments handed down in proceedings to which the HCCC was not a party were not relevant. Given the scope of s 239(7) of the Act, this is plainly incorrect as a matter of law. She also referred, briefly, to s 91 of the Evidence Act, but did not expand on her submission in relation to that provision. She then submitted that I should not take the judgments into consideration without first requesting that they be examined, but she did not expand on this submission either.

16    The remainder of the appellant’s submissions about Exhibit 2 were essentially based on her complaints about the outcome of each proceeding. The appellant accepted that each of the proceedings referred to in the Chronology was a proceeding to which she was a party. She also expressed her preference that the matter should be determined by me were I to form the opinion that the primary judge had erred in her exercise of power under s 239, rather than have me remit the matter back to the Federal Circuit and Family Court for re-hearing before another judge.

Counsel for the HCCC contended, correctly, that the appellant was on notice that decisions referred to in the Chronology were decisions on which the HCCC relied in support of its application for orders under s 239(2). The judgments referred to in the Chronology were known to and accessible by the appellant. It is apparent from her submissions that she is and was at all relevant times familiar with each and every such judgment. I do not consider that the appellant has been prejudiced by tender of Exhibit 2 in any relevant way. In the circumstances, Exhibit 2 is admitted as evidence of the existence of the proceedings, their outcomes, the course they took, and the appellant’s conduct of them.

Consideration of Prior Proceedings

17    The first proceeding the Chronology refers to is Sharmain Naicker and NSW Health Service - Government of New South Wales for South Eastern Sydney Illawarra Area Health Service [2008] NSWIRComm 1104. That proceeding was originally commenced in the NSW Industrial Relations Commission (“NSWIRC”) by the New South Wales Nurses’ Association (“the Association”) on behalf of the appellant, but representation was later ceased. The Association alleged that the appellant had been “harshly, unreasonably or unjustly dismissed” (at [1]). The matter was unsuccessfully conciliated.

18    The decision states that the appellant was employed as a permanent full-time perioperative nurse at Prince of Wales Hospital, Randwick (“the hospital”), from 7 April 2003 to 13 March 2008 (the date of her dismissal). At [3], the NSWIRC noted that the hospital’s decision to dismiss the appellant:

…stemmed from a series of events that began with a dispute with other staff on 31 August 2007 in which the [appellant] was alleged to have misconducted herself, including allegations that the [appellant] shouted at staff and grabbed a nurse. It is important to note, however, that the events on 31 August 2007, themselves, were not the reason for the dismissal. Rather, the dismissal was, instead, based on events subsequent to the alleged altercation in which the [appellant] was, as noted in the letter of termination dated 13 March 2008, “considered [to have] wilfully and fraudulently falsified and submitted a witness statement, which is considered to be a breach of the Code of Conduct”.

19    The alleged falsification of the witness statement was the subject of the dispute before the NSWIRC. The NSWIRC accepted that the process investigating and dismissing the appellant was, in some respects, procedurally unfair, but found ultimately that its discretionary intervention was not warranted at [23]. The application was dismissed.

20    Next, the Chronology refers to two discontinued proceedings in the NSWIRC in 2014 and 2015 brought by the Association on the appellant’s behalf. These proceedings are described by Schmidt AJ in paragraphs [74] – [76] of South Eastern Sydney Local Health District v Clarke [2021] NSWSC 63 (“2021 NSWSC Decision”). There, her Honour relevantly noted that:

Since then [the appellant] has herself pursued numerous claims in relation to her treatment at work before her employment was terminated, which was the subject of the 2014 and 2015 proceedings and the steps which followed, which she claimed had adversely impacted her registration and ability to work as a nurse …

21    In 2016, the appellant commenced proceedings in the Fair Work Commission (“FWC”) regarding the termination of her employment from the Royal Hospital for Women: Ms Sharmain Naicker v South Eastern Sydney Local Health District T/A Royal Hospital For Women [2016] FWC 5697. That decision records that the appellant was terminated from her employment with the Royal Hospital for Women on 5 May 2015, but that the FWC received her application “on 8 June 2016 – some 54 weeks’ outside of the statutory timeframe” (at [3]). The appellant applied for an extension of the time in which she was able to apply for relief to the FWC. At [11], the FWC noted that a representative for the hospital stated that the subject matter of the dispute had already been dealt with by the NSWIRC and the appellant had been paid a settlement of $10,000 gross. The representative also stated that the appellant had, at that time, made an application to the Anti-Discrimination Board (“ADB”). The FWC held that the appellant did not identify an exceptional circumstance warranting an extension of time for her to make her application.

22    The appellant’s complaint to the ADB, being a complaint that she was subject to disability discrimination in her employment, was the subject of a hearing in the New South Wales Civil and Administrative Tribunal (“the Tribunal”) in 2017: Clarke v South Eastern Sydney Local Health District [2017] NSWCATAD 81. That decision records that the appellant requested that the matter be referred to the Tribunal for a hearing after the Acting President of the ADB declined her complaint as lacking in substance. The member found that “the material before the Tribunal does not provide evidence of disability or presumed disability as being the reason for [the appellant’s] less favourable treatment – being subjected to performance assessment or having her employment terminated”: [41].

23    On 4 October 2017, another NCAT hearing was held concerning the appellant’s appeal against interim conditions on her registration as a nurse, following a determination made by the Nursing and Midwifery Council (“the Council”) in 2015. The Tribunal found that the conditions imposed were appropriate and dismissed the appeal: Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163 at [47].

24    In 2018, Adamson J of the Supreme Court of NSW summarily dismissed a defamation proceeding commenced by the appellant on 4 April 2017 against her employer and Julie Herrick (another employee): Clarke v South East Sydney Local Health District [2018] NSWSC 66. At [62], Adamson J found that:

…none of the claims made in the statement of claim filed on 4 April 2017 is maintainable. The pleading is, in any event, too deficient to be permitted to stand. In these circumstances, for the reasons given above, the proceedings ought be wholly dismissed.

25    The appellant was ordered to pay the costs of the defendants in that proceeding: Clarke v South East Sydney Local Health District (No 2) [2018] NSWSC 357. Justice Adamson made an order that the plaintiff should pay those costs in a gross sum pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) and stated at [12]: “[w]hether or not the making of such an order has a deterrent effect on the [appellant], as the defendant hopes, remains to be seen”. It is apparent that her Honour recognised there was merit in an order which might discourage the appellant from pursuing further proceedings.

26    The appellant was successful in an application for leave to appeal from the judgment of Adamson J, because the bundle of documents provided to her Honour by the first respondent was deficient in a way that was found to have given rise to a denial of procedural fairness: Sharmain Daisy Clarke v South East Sydney Health District (No 2) [2018] NSWCA 226 at [56]. However, their Honours Leeming and Payne JJA stated at [3] that complaints advanced by the appellant as to the primary judge’s reasons were “unfounded, and [did] not warrant a grant of leave”. Their Honours also stated at [12]:

…We have also concluded that it is appropriate for there to be a limited further grant of pro bono assistance to [the appellant]...That grant will be confined to providing assistance as to the drafting of a draft amended notice of appeal…If counsel is of the view that there are other grounds warranting an application for a grant of leave, such application may be made when the appeal is heard. The limitations upon the grant of pro bono legal assistance will make it plain that counsel is under no obligation to appear at the hearing …

27    The parties then agreed to orders setting aside the judgment of Adamson J, with the effect that the matter was remitted to the Supreme Court. Upon rehearing, Bellew J dismissed the proceeding, finding that the documents provided to him which should have been before Adamson J had no material bearing upon the determination to be made: Clarke v South Eastern Sydney Local Health District (No 3) [2019] NSWSC 1075 at [23]. Justice Bellew was of the view that no reasonable cause of action was made out on the pleadings: [24]. The appellant then applied for leave to appeal Bellew J’s judgment, which was refused: Clarke v South Eastern Sydney Local Health District [2020] NSWCA 8. The appellant then applied to the High Court for special leave, which was also refused: Clarke v South Eastern Sydney Local Health District [2020] HCASL 135.

28    The appellant also commenced a separate defamation proceeding in the NSW District Court in 2018: Clarke v Fenn [2018] NSWDC 336. The appellant’s complaint related to statements allegedly made by Ms Fenn in the course of an investigation by Council. She commenced the proceeding outside of the limitation period, for which she requested an extension of time. Paragraphs [20]-[21] of Gibson DCJ’s decision are particularly relevant:

[20]     The plaintiff also told the court she was involved in other litigation. I note that she received pro bono assistance in this court in late 2016 and has commenced other proceedings against other defendants in relation to the subject matter of these proceedings: Clarke v South East Sydney Health District (No 2) [2018] NSWCA 226; Clarke v South East Sydney Local Health District [2018] NSWSC 66; Clarke (previously Naicker) v Herrick [2017] NSWDC 302. She brought proceedings in the Fair Work Commission in 2016: Naicker v South Eastern Sydney Local Health District T/A Royal Hospital For Women [2016] FWC 5697; in the course of refusing an extension of time to bring proceedings (on the basis of ill health), Commissioner Riordan noted that the plaintiff had been able to bring other proceedings (at [16]). The limitation period for defamation had not yet expired at the time the plaintiff brought the Fair Work Commission proceedings which resulted in this judgment dated 2 September 2016.

[21]     While the plaintiff was preoccupied with other litigation, including the complaints procedure in the course of which the matter complained of, and was suffering health problems, I am satisfied that she would still have been properly able to commence proceedings during the 12 months following publication of the matter complained of. It was not necessary for her to wait until the end of the 12 month period for the termination of her employment to be ruled upon either by the Council, Health Care Complaints Commission or Industrial Relations Commission.

29    An extension of time to commence the proceeding was not granted but, in any case, Gibson DCJ found that the proceeding should be summarily dismissed because “the publication the subject of these proceedings was made on an occasion protected by absolute privilege”: [39].

30    The Chronology lists several proceedings with judgments handed down in 2019 – 2022, many of which were dismissed:

(a)    Clarke v Nursing and Midwifery Council of New South Wales [2019] FCCA 2127: the proceeding as against the first, second and fourth respondents was dismissed, as it was found that the appellant had “no reasonable prospects of successfully prosecuting the proceeding against them and the proceeding against them is otherwise frivolous, vexatious and an abuse of the process of the Court” at [30]. In Clarke v Nursing and Midwifery Council of New South Wales (No. 2) [2019] FCCA 3035, costs were awarded to the first, second and fourth respondents, and the proceeding as against the third respondent was dismissed because the appellant could not refer the judge to “a skerrick of wrongdoing which would give rise to a cause of action or proper legal complaint” (at [38]). An application by the appellant to reopen the case was refused: Clarke v Nursing and Midwifery Council of New South Wales (No. 3) [2019] FCCA 3159. Costs were also awarded to the third respondent: Clarke v Nursing and Midwifery Council of New South Wales (No 4) [2019] FCCA 3639.

(b)    Clarke v Nursing and Midwifery Council of New South Wales (No. 3) [2019] NSWDC 532: an application made by the appellant to have the solicitors for the defendant cease acting was dismissed.

(c)    Clarke v Herrick [2019] NSWDC 533: the defendants successfully applied for summary dismissal on the basis that the allegedly defamatory publication complained of fell outside of the limitation period. An application for leave to appeal this decision was refused by Meagher and Leeming JJA: Clarke v Herrick [2020] NSWCA 71.

(d)    Clarke v Nursing and Midwifery Council New South Wales [2019] FCA 1782: Justice Flick refused the appellant leave to commence three disability discrimination proceedings. His Honour also explained that, had leave not been refused, “it would have been further concluded that the continued pursuit of those proceedings would have been “vexatious”” (at [78]). At [82], his Honour noted:

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…[T]he manner in which Ms Clarke has conducted the present hearings is far from desirable – even for an unrepresented litigant...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.

The appellant sought leave to appeal from Flick J’s decision, which was refused: Clarke v South Eastern Sydney Local Health District [2020] FCA 1616.

(e)    Clarke v South Eastern Sydney Local Health District [2019] FCCA 3769: Judge Street dismissed an application made by the appellant to reinstate a proceeding after she failed to appear at an earlier hearing. His Honour held that there was no arguable case which warranted earlier dismissal orders for want of appearance being set aside.

(f)    Clarke v Nursing and Midwifery Council of New South Wales [2020] NSWCATOD 58: The appellant filed two applications in the Tribunal seeking review of a decision of the Council on 13 July 2017. The member noted that the Tribunal had already handed down a decision in relation to the same subject matter, being Clarke v Nursing and Midwifery Council of NSW [2017] NSWCATOD 163 (referred to above in paragraph 23). The Tribunal dismissed both applications as misconceived.

(g)    The 2021 NSWSC Decision also refers at [85] – [87] to two unreported decisions of Curtis ADCJ dismissing two further sets of proceedings: Clarke v Dale (District Court (NSW), 8 October 2020, unrep) and Clarke v Herrick (District Court (NSW), 8 October 2020 unrep). Those proceedings involved claims for assault and battery brought by the appellant against co-workers at the Royal Hospital for Women. The proceedings were heard over a period of seven days and involved extensive oral evidence from the appellant and the defendants. The appellant was refused leave to appeal against the judgments dismissing the proceedings: Clarke v Herrick [2021] NSWCA 102.

(h)    Clarke v Nursing and Midwifery Council of New South Wales [2020] NSWDC 641: The appellant sued the Council in relation to two allegedly defamatory publications. Scotting DCJ dismissed the proceeding and ordered that the appellant pay the costs of the Council.

(i)    Clarke v Nursing and Midwifery Council NSW [2020] FCA 1617: Justice Abraham denied the appellant leave to appeal from several judgments handed down in the Federal Circuit Court (as it then was).

(j)    Clarke v Adams [2021] NSWDC 256: The appellant commenced a medical negligence proceeding which was dismissed on the basis that the statement of claim was defective and did not disclose any cause of action (at [14]).

Vexatious litigant orders

31    The orders giving effect to the 2021 NSWSC Decision of Schmidt AJ prohibited the appellant from instituting proceedings in NSW, without leave, against the South Eastern Sydney Local Health District (“SESLHD”), the Council and the Health Professional Councils Authority, or relating to the subject matter traversed in various prior proceedings.

32    In that case, an order under s 8 of the Vexatious Proceedings Act 2008 (NSW) was sought by the SESLHD and the Council upon the commencement of proceedings. In determining that the order ought to be granted, Schmidt AJ concluded that “[t]he evidence well establishes that the other parties to the vexatious proceedings which Ms Clarke has conducted need to be shielded from her relentless pursuit of her beliefs in the Courts and Tribunals in which she has pursued them” (at [138]). Her Honour drew attention to the fact that such an order is not punitive, but protective of the Court and other litigants: [137]. Her Honour had regard to the following at [139] – [143]:

(a)    The appellant’s “repeated, unsuccessful and ongoing pursuit of her claims” relating to the conditions and termination of her employment, the conditions imposed on her nursing registration and the conduct of the solicitors acting on behalf of the plaintiffs.

(b)    The appellant’s continued pursuit of those claims despite the striking out and dismissal of the same.

(c)    The appellant made it apparent, through the case she advanced, that she would not be deterred from pursuing such claims.

(d)    It was apparent that even where costs were awarded to those parties the appellant made claims against, such costs could not have “adequately dealt with the consequences of all that [the appellant] has unsuccessfully pursued and yet remains intent on pursuing against them”.

33    The appellant has unsuccessfully attempted to commence several proceedings following Schmidt AJ’s order, including those proceedings which resulted in the following decisions:

(a)    Clarke v Adams [2021] NSWSC 1665;

(b)    Clarke v Nursing and Midwifery Council of New South Wales [2022] NSWSC 15;

(c)    Clarke v New South Wales Nurses and Midwives' Association (The Union) [2022] NSWSC 349; and

(d)    Sharmain Daisy Clarke v Health Care Complaints Commission [2022] NSWSC 495, where Slattery J relevantly noted at [13]:

Notwithstanding that this is a proposed claim for damages against the HCCC, all those subject matters overlap considerably with the prior proceedings… the complaints about the HCCC cover the same subject matter as the previous proceedings …

Cancellation of registration and subsequent proceedings

34    Exhibit 2 also includes the decision of Health Care Complaints Commission v Clarke [2022] NSWCATOD 146 (“2022 NCAT Decision”), which arose from a proceeding commenced in the Tribunal by the HCCC seeking to have the appellant’s registration as a nurse cancelled, and to prohibit the appellant from providing a health service, with a non-review period of 6 years. It was alleged that the appellant had an impairment giving rise to a complaint under of s 144(d) of the Health Practitioner Regulation National Law (“National Law”) and lacked sufficient capacity to practice as a nurse pursuant to s 139(a) of the National Law. The proceeding before the Tribunal was instituted by the HCCC following its investigation of a complaint raised by the Council in relation to the appellant.

35    The Tribunal found that the appellant was suffering from an impairment and was not competent to practise her profession: [104] and [105]. The Tribunal granted the orders sought by the HCCC, but with a non-review period of three years, rather than six.

36    The appellant filed an application for leave to appeal, and also separately an appeal as of right, from the 2022 NCAT Decision to the NSW Court Appeal. Leave to appeal was refused and the appeal was dismissed: Clarke v Health Care Complaints Commission (No 2) [2024] NSWCA 15 (“NCAT Appeal Decision”). The appellant did not appear at the hearing of these proceedings. The Court of Appeal noted at [69]:

It is difficult to identify from Ms Clarke’s grounds of appeal or proposed grounds of appeal, and from her written submissions, what are the errors she contends the Tribunal made. …Ms Clarke did not appear on the hearing of the appeal and we have no means of elucidating matters her written submissions leave obscure. However, some of Ms Clarke’s grounds of appeal and submissions raise questions of law. None is of substance.

37    The appellant also referred to a recent decision handed down by Wilson J in the NSW Supreme Court: Clarke (Naicker) v Health Care Complaints Commission [2024] NSWSC 153 (“2024 NSWSC Decision”) which was also included in Exhibit 2. The 2024 NSWSC Decision relates to an application for judicial review brought by the appellant of the 2022 NCAT Decision. That proceeding was summarily dismissed on the basis that it sought to re-agitate the same issues considered in the NCAT Appeal Decision.

38    At [1] of the 2024 NSWSC Decision, Wilson J noted that, on her count, “there are something like 45 public judgments dealing with claims initiated by or connected with Ms Clarke. All of them have at their heart the question of the continuation of Ms Clarke’s occupation as a Registered Nurse” (footnote omitted). At [37] – [38], her Honour stated:

[37]    It is clear from the material before the Court that Ms Clarke has become fixated upon the legal process as a means of redressing what she believes to be a significant injustice. The many rejections there have now been of her complaints concerning the cancellation of her registration to practice as a nurse and associated claims have left her undeterred, and she continues to endeavour to resort to the courts to argue what is essentially the same case, again and again. Her inability to accept the judgments of multiple courts, and her determined pursuit of her complaints regardless of those many judgments is, of itself, some confirmation of the opinions of Dr Samuels and others that so outrages Ms Clarke, as to her mental illness.

[38]    I do not doubt that her beliefs that she has been unjustly treated by the regulatory authorities, NCAT and the legal system, are genuinely held, but they appear to be beliefs formed and maintained when in the grip of mental illness. These many legal claims appear to have become a manifestation of that illness. The present claim cannot be allowed to proceed in circumstances where the Court of Appeal has already determined its substance.

The complaint

39    On 23 April 2022, the appellant made a complaint (“Complaint”) to the Australian Human Rights Commission (“the Commission”). It is the termination of that Complaint which, as I will explain below, gave rise to the proceeding before the primary judge. The Complaint, as well as the associated notice of termination from the Commission, were attached to the Originating Application and Amended Originating Application, but do not form part of the pleadings: McLaughlin v Glenn [2020] FCA 679 at [12].

40    Complaints to the Australian Human Rights Commission are provided to the Court so that it may ascertain the extent of its jurisdiction, but it has also been recognised that the nature and content of the complaint “may of course have other forensic uses or purposes during a proceeding” (per Mortimer J, as she then was, in Oldham v Capgemini Australia Pty Ltd (2015) 241 FCR 397 at [17]). Here, the appellant sought leave to commence a proceeding in the Court below once her complaint was terminated, but required leave in order to do so: s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRCA”). The content of her complaint is relevant to the relief she sought in the Court below and whether or not her proceeding was vexatious.

41    The Complaint names two respondents – the first is the HCCC, and the second is the NSW Department of Communities and Justice (“NSWDCJ”). The Commission did not deal with the complaint as made against the NSWDCJ and that part of the appellant’s complaint is not relevant to this appeal.

42    The Complaint states that both respondents have assumed the appellant is “sick” and that she does not “have a disability and was imputed psychiatric disability”. It also alleges that the appellant was denied employment “because National Databases carried inaccurate information about allegations based on erroneous statements, opinions and hearsay about [her] in a professional and personal capacity”. She claimed to have been subjected to “serious prejudice and procedural unfairness” and that the HCCC had insistently attempted to coerce her to attend psychiatric assessments.

43    The complaint against the HCCC was summarised by the Commission as follows in its letter to the appellant dated 19 October 2022:

Summary of the complaint

On the complaint form, you say that you are complaining about acts of the HCCC on 23 April 2021, 15 October 2021, 21 January 2022 and 14 February 2022. From the information you have provided, I understand as follows:

•    In a letter dated 23 April 2021, the HCCC informed you that:

•    it had finalised its investigation into a complaint from the Nursing and Midwifery Council (NMC) about you;

•    the investigation ‘found evidence that you suffer from an impairment as defined under Part 1 section 5 of the Health Practitioner Regulation National Law (NSW) (the National Law) and that you are not competent to practice nursing in that you do not have the mental capacity and sufficient skills or knowledge to practice the profession’;

•    it had considered your submissions but remained of the view that the complaint should be referred to the Director of Proceedings for determination as to whether the complaint should be prosecuted before a disciplinary body.

•    On 15 October 2021, the HCCC made an application to the NSW Civil and Administrative Tribunal (NCAT) seeking: cancellation of your registration as a nurse with a non-review period of 6 years; a prohibition order prohibiting you from providing a health service for the same non-review period; and an order that you pay the HCCC's costs.

•    In a letter to you dated 21 January 2022, the HCCC requested that you attend an assessment with Dr Murray Wright with the view that Dr Wright would prepare a report and give evidence at the NCAT hearing.

•    In a letter to you dated 14 February 2022, the HCCC said you had indicated you would not attend the independent health assessment with Dr Wright and the HCCC again requested that you do so.

•    You claim the HCCC has subjected you to serious prejudice and procedural unfairness and has harassed you by action which includes 'insistently attempting to apply coercive and oppressive action' for you to attend psychiatric health assessments.

•    You say you see no utility in seeing a psychiatrist because you are not in need of that service and the HCCC has imputed that you have a psychiatric disability, that you do not have.

It is clear that the crux of the Complaint relates to the circumstances and events leading up to the 2022 NCAT Decision.

44    The Commission’s letter, signed by a Delegate of the President, advised that it would terminate the appellant’s complaint under s 46PF(1)(b) and 46PH(1)(g) of the AHRCA. The Delegate provided the following reasons for the decision:

Reasons for my decision

Your complaint is about action taken by the HCCC to seek disciplinary findings and orders against you on the basis that you have an impairment and are not competent to practice as a nurse; and associated requests for you to attend an independent health assessment. You claim that the HCCC has imputed a psychiatric disability to you, that you do not have and that there is no utility in you seeing a psychiatrist because you are not in need of that service.

I acknowledge your concerns as set out in the complaint. However, as explained below, I am of the view that the subject matter of your complaint could be more effectively and/or conveniently addressed in the current proceedings before NCAT’s Occupational Division.

I understand that a key issue to be addressed in those proceedings is the factual dispute between you and the HCCC as to whether you have an impairment as defined in the National Law. As you are aware, NCAT’s Occupational Division is separate from, and independent of, health professional councils such as the NMC; and has specific expertise in considering disciplinary action regarding health professionals. Further, while this Commission does not have the ability to conduct a hearing or make an enforceable determination about unlawful discrimination, NCAT has the ability to make enforceable decisions directly relevant to your desired outcome of being able to work as a registered nurse. I also anticipate that any concerns you may have about procedural unfairness in relation to the HCCC’s processes can be raised in the NCAT proceedings.

Publicly available documents indicate that NCAT has already conducted preliminary hearings in relation to this matter, and the substantive hearing is listed to commence on 31 October 2022.

I note that in your email to the Commission of 4 October 2022, you express concerns about prior decisions by NCAT. I appreciate that you may disagree with NCAT's previous decisions in relation to your matters. However, for the reasons set out above, I am of the view that it is appropriate to terminate your complaint without inquiry, as I am satisfied the subject matter of the complaint could be more effectively and/or conveniently dealt with by NCAT.

(Footnote omitted)

45    The hearing of the NCAT proceedings referred to in the Delegate’s reasons commenced (as anticipated by the Delegate) on 31 October 2022. The 2022 NCAT Decision (discussed above) was made on 17 November 2022.

The proceeding below

46    On 19 December 2022, the appellant lodged with the Federal Circuit and Family Court of Australia her originating application alleging unlawful discrimination under s 46PO of the AHRCA (“Originating Application”). The appellant sought several orders, including financial compensation. Some of the orders sought appear to be misconceived. For instance, the third order purportedly sought is “Civil Penalty provisions and Trade practices to be affected, due to a denial of earning any remunerations commencing 2015”. The appellant also purported to claim interlocutory relief, which included a request that decisions handed down in the Supreme Court of NSW and the Tribunal be “rescinded and or otherwise revoked”.

47    The Originating Application states that the appellant is complaining of “Unlawful Discrimination” being “Imputing Psychiatric Disability in the absence of any psychiatric clinical manifestations”. In a document attached to the Originating Application, the appellant further states that her proceeding is brought on the grounds of, inter alia, “[h]arassments, coercion, collusion, threats, attempt to pervert the course of justice, orders sought from prohibition orders to cancellation of [her] nursing registration”.

48    In a Response filed on 10 March 2023, the HCCC sought an order, inter alia, that the appellant be prohibited from instituting proceedings against or relating to the HCCC, its staff, consultants, executive officers and agents in relation to any matter arising from the appellant’s professional practice (except with the consent of the HCCC), under section 239(2)(b) of the Act.

49    On 14 April 2023, the appellant filed an Amended Originating Application which named an additional 12 proposed respondents, including the Tribunal, Dr Andrew Adams, Dr Patrick Toohey and Dr Murray Wright. All are medical practitioners who gave evidence (or provided medical records) to the Tribunal in relation to the appellant’s mental health, and her fitness for work in the nursing profession. Other proposed respondents included medical practitioners who had previously treated the appellant. The Amended Originating Application included substantially amended final orders and interlocutory relief sought by the appellant, but most of the orders sought remained misconceived.

The hearing before the Primary Judge

50    The hearing before the primary judge occurred on 11 October 2023. The appellant appeared in person, and Ms Petrie of Counsel appeared for the HCCC. I have had regard to a copy of the transcript of the hearing.

51    In advance of the hearing, the appellant filed several interlocutory applications. Her Honour made clear during the course of the hearing that none of these applications were before her. Although various affidavits were filed by the appellant below, the transcript of the hearing before her Honour makes clear that the only affidavit on which the appellant relied at that hearing was an affidavit she had made on 30 March 2023 (“30 March 2023 Affidavit”). No oral evidence was given.

The primary judgment

52    The primary judgment records that the appellant is a “serial litigant” (at PJ [2]) and had been, at the time of the proceeding, “a litigant in approximately 30 different proceedings, all arising out of, essentially, the same factual scenario” (at PJ [3]). The primary judge had regard to the Chronology (which she adopted and incorporated into her reasons), the written and oral submissions of each party and the 30 March 2022 Affidavit: PJ [4]. At PJ [6], the primary judge stated:

The Court is satisfied that Ms Clarke is a person who is a vexatious litigant and the Court is satisfied, having regard to s.7 of the Act, that Ms Clarke has frequently instituted or conducted vexatious proceedings in Australian Courts and Tribunals, and that it is appropriate, in all of the circumstances, having regard particularly to the nature of the relief that is sought herein and the number of named respondents in these proceedings, that the proceedings themselves are an abuse of process and that it is in the interests of justice that the orders sought by the respondent in the application before the Court today be made.

Her Honour then went on to consider the matter of costs which she awarded to the HCCC.

Grounds of appeal

53    The Notice of Appeal contains five lengthy grounds of appeal, each of which is either unintelligible or misconceived. The first ground is expressed as “[m]istake or ignorance of statute Law whereby the Act is expressly or impliedly to the contrary effect, potential mistakes or ignorance adopted by the Lower Court Judge”.

54    By the second ground of appeal, the appellant contends there has been an abuse of discretion by the primary judge “affected from the wrong application, which was an interlocutory application filed 15 February 2023 by the applicant, caused for the judgement to be handed down on 11 October 2023”. Several points, which appear to be particulars, are set out underneath this ground, the first of which seems to be directed to the fact that there was no final hearing of the substantive matter before the primary judge. The appellant also appears to have taken issue with the content of the Chronology referring to material that was not filed and served on her, and the fact that the primary judge did not hear any of her interlocutory applications. She asserts there have been “[p]rotracted and elongated non compliances” with the Act.

55    The third ground reads “Judiciary Act 1903 applicable to the Application in the Lower Court was known and canvassed in interlocutory applications with affidavit evidences filed”. There is no indication of what is meant by this ground.

56    The fourth ground, which is several paragraphs, seems to be directed to the fact that the primary judge determined the wrong issue by addressing the application filed by the HCCC for orders under s 239 of the Act, rather than the substantive claim for relief made by the appellant. As part of this ground, the appellant alleges that she has “suffered prejudice and procedural unfairness in the highest” and then alludes to the hearing (or lack thereof) of an interlocutory application.

57    Finally, the fifth ground of appeal alleges that the HCCC has failed to comply with court orders. This ground is particularised by reference to an annexure to the appellant’s affidavit filed 10 November 2023, which appears to be a compilation of orders made in the proceeding below. No further particulars as to this non-compliance are provided.

The Proceeding in this Court

58    On 26 March 2024, the appellant attended registry in person and sought to file an interlocutory application and supporting affidavit. That application sought several orders including for the joinder of five additional parties, including the Council, the Health Professional Councils Authority, the Nursing and Midwifery Board of Australia, and the medical practitioners, Dr Anthony Samuels and Dr Karen Arnold. That application was not accepted for filing. The appellant informed me that the parties she sought to join held “concurrent interests” because each believed she should not be working as a nurse on the grounds of a psychiatric illness.

59    The appellant has also filed two notices of a constitutional matter under section 78B of the Judiciary Act 1903 (Cth), each of which appears to be in identical terms and signed by the appellant on the same day. In these documents, the appellant refers to the NSWDCJ and several other proceedings and causes of action which are not relevant to this proceeding. The notices filed by the appellant are incoherent, misconceived and frivolous. They do not identify any point arising under the Constitution or involving its interpretation: Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292 at [13]-[14] per French J.

60    The written submissions filed by the appellant do not clarify any of her grounds of appeal. The appellant has submitted that she has been subject to procedural unfairness, and has also made submissions regarding a variety of other proceedings she has been involved in. Her written submissions also make reference to the fact that the primary judge refused to deal with several interlocutory applications filed in the proceeding below.

61    The appellant’s oral submissions were as follows:

(a)    She described the first ground of appeal as being directed to the primary judge having had regard to material that was not before her, including the Chronology. I have dealt with this point above. However, as part of this ground, she also seemed to take issue with the primary judge’s reference to proceedings in other Courts, and the fact that the primary judge on the day of the hearing dealt only with the HCCC’s application for orders under s 239 of the Act and not the primary application made in that proceeding. She contended that there had been an “error in fact finding” because there was no evidence to support the HCCC’s case.

(b)    She then submitted that the material before me was deficient, in that it was different to the material before the primary judge. However, she could not point to any material other than the 30 March Affidavit which was relied upon by her as evidence in the proceeding below.

(c)    She took issue with the reliance, by the respondent, on cases to which it was not a named party.

(d)    The appellant referred me to r 13.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) in support of a submission that the respondent had not relied on appropriate evidence to make an application for summary dismissal.

Principles

62    The principles relating to the making of a vexatious proceedings order were referred to by Wheelahan J in Fokas (in relation to s 37AO(1)(a) of the Federal Court Act, which is in the same terms as s 239(1)(a) of the Act). His Honour said at [36]-[40]:

36    A vexatious proceedings order is an extreme measure and should not be made lightly: Soden v Kowalski [2011] FCA 318 at [35] (Stone J). However, the nature of the relief is not to bar litigation by a vexatious litigant entirely, but to control it by imposing a requirement for leave. By allowing for such control, the relief authorised by the legislation reinforces the power of the Court to protect its own processes against unwarranted usurpation of its time and resources and to avoid loss caused to those who have to face proceedings that lack substance: Jones v Skyring (1992) 109 ALR 303 at 312 (Toohey J). As the Full Court (Besanko, Logan and McKerrracher JJ) stated in Fuller v Toms [2015] FCAFC 91; 234 FCR 535 at [31] –

Section 37AO of the Federal Court Act empowers a court to balance the right of one individual of access to justice with other rights namely, a correlative right on the part of the present respondents to finality and the separate right of other individuals also to access this Court. It is for this Court, the present manifestation of a recognition by the Australian Parliament, the origins of which may be traced to an earlier recognition by the United Kingdom Parliament, via the Vexatious Actions Act 1896 (UK) (59 & 60 Vict. C. 51), of a need for a power to effect just such a balance.

37    In Mathews v State of Queensland [2015] FCA 1488, at [81], Reeves J identified the conditions necessary to engage s 37AO(1)(a) as being that the person has –

(1) frequently;

(2) instituted or conducted;

(3) vexatious proceedings;

(4) in Australian courts or tribunals.

38    The meaning of the word “frequently” is relative, and must be viewed in context: Jones v Cusack (1992) 109 ALR 313 at 315 (Toohey J); Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [46]-[49] (Beazley P, Emmett JA and Sackville AJA). The number of proceedings instituted need not be large in order for it to be considered frequent. The number of proceedings may be small if a litigant attempts to re-litigate or re-agitate an issue previously determined by the Court: HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 at [111]-[114] (Perry J), approved by the Full Court in Fuller v Toms at [33]-[34].

39    The terms “institute” and “vexatious proceeding” are the subject of the inclusive definitions … The re-litigation of matters that have been decided previously, or seeking to institute further proceedings in relation to matters that have been raised, or should have been raised more appropriately in other proceedings, have been held to constitute vexatious proceedings within the terms of the expression. So, too, has the institution or pursuit of proceedings without reasonable grounds: Mathews at [90], citing Garrett v Commissioner of Taxation [2015] FCA 117; 147 ALD 342 at [23] (Pagone J), and Mulhern v Bank of Queensland Ltd (No 3) [2015] FCA 927 at [9] (Gleeson J).

40    A proceeding includes an incidental proceeding in the course of, and in connection with a proceeding, and an appeal: Federal Court of Australia Act, s 4. Therefore, an interlocutory proceeding may be a “proceeding”: Mathews at [92].

Consideration

63    I have had regard to those proceedings involving the appellant to which I have referred to above and, in particular, the detailed reasons of Schmidt AJ. I have also had regard to each party’s submissions, the transcript of the hearing below, and the bundle referred to as Exhibit 2 received as evidence on appeal.

64    The primary judge’s reasons are exceedingly brief. However, as I have explained, it is apparent from her Honour’s reasons that she treated the Chronology and many of the decisions referred to in it as being in evidence when, as the HCCC concedes, they were not in evidence. This was clearly an error within the principles referred to in House v The King (1936) 55 CLR 499 at 504 – 505, and also resulted in the appellant being denied procedural fairness: see for example, Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at 309 per Kirby P and Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629 at [72] per Merkel J (with whom Heerey J agreed at [29]).

65    However, I am satisfied that the evidence now before the Court clearly demonstrates that the appellant is a vexatious litigant. She has frequently instituted proceedings which are vexatious (as that term is defined in s 7 of the Act) in Australian courts and tribunals including the proceeding she brought against the Council in the Federal Circuit Court of Australia which was dismissed in 2019 as frivolous, vexatious and an abuse of process, the application for leave to commence proceedings heard by Flick J in the same year, the proceeding the appellant brought against Dr Adams and others which was dismissed in 2021, and the applications filed with the Tribunal seeking review of the Council’s decision of 13 July 2017 which were dismissed by the Tribunal as misconceived. I also refer to the proceeding that the appellant sought to commence against the HCCC which was the subject of consideration by Slattery J in 2022. All of these proceedings were conducted without reasonable grounds and in a manner that was likely to harass and annoy the respondents to those proceedings (including the HCCC) and cause them substantial expense and inconvenience.

66    As to the proceeding below, it was in my opinion clearly brought for the improper purpose of mounting a collateral attack upon the Tribunal’s decision in the proceeding brought by the HCCC seeking cancellation of the appellant’s registration as a nurse (i.e., the 2022 NCAT Decision). I have also had regard to the appellant’s attempts to expand the scope of the proceeding before the primary judge to seek orders against witnesses in the Tribunal proceeding who gave expert evidence or produced medical records concerning the mental health of the appellant and her fitness to practice as a nurse. I am satisfied that the proceeding below lacked any reasonable grounds to support the relief sought by the appellant and were calculated to harass and annoy the HCCC and the witnesses against whom the appellant also sought to prosecute the proceeding.

Disposition

67    The appeal will be allowed in part and order 2 made by the primary judge varied by the addition of the words “in the Federal Circuit Court and Family Court of Australia” immediately after the words “prohibited from instituting proceedings”. The appeal will be otherwise dismissed. The appellant must pay the respondent’s costs of the appeal. There will be orders accordingly.

Associate:

Dated:    11 July 2024