Plaintiffs Opposes Defendant's Institution of Proceedings
South Eastern Sydney Local Health District v Clarke (No 2) [2021] NSWSC
The plaintiff seeks that the defendant be prohibited from instituting proceedings, and that all her existing proceedings be stayed. The applicant had been refused leave to appeal. The Court, in deciding upon the application, relied on Vexatious Proceedings Act 2008 (NSW).
Facts:
The defendant, Ms Clarke is a nurse who was dismissed from her employment with the South Eastern Sydney Local Health District in 2015, and has since unsuccessfully brought numerous and frequent proceedings against the Health District, as well as its employees and solicitors.
The plaintiffs, South Eastern Sydney Local Health District and Nursing and Midwifery Council of New South Wales seeks that the defendant, Ms Clarke, be prohibited from instituting proceedings, and that all her existing proceedings be stayed.
Schmidt AJ ordered that no further documents are to be emailed to her Honour’s Associate/Chambers nor be filed with the Court unless leave is first sought of the Court by a motion supported by affidavit. The defendant filed a Notice of Motion on 5 February 2021 seeking leave from the Court to file a Notice of Motion and Affidavit. This is to assist the Courts as to why the orders for the dismissal of the amended summons application are pursued.
The applicant had been refused leave to appeal to the Court of Appeal against vexatious proceedings orders. The Court of Appeal found that Ms Clarke “has not demonstrated the slightest possibility of error on the part of the primary judge or demonstrated any basis upon which an appeal could be allowed”.
Issue:
Whether or not leave to file should be granted.
Applicable law:
Vexatious Proceedings Act 2008 (NSW) ss 4, 5, 14, 15 - sets out the criteria for affidavits in an application for leave.
Uniform Civil Procedure Rules 2005 (NSW) r 7.36 - provides that the Court may make an order for pro bono assistance provided that it is in the interests of the administration of justice to do so.
Analysis:
Ms Clarke asserted in the affidavits that she had been denied procedural fairness in the way the plaintiffs’ summons had been dealt with by Schmidt AJ. She raised matters to the effect that the various proceedings she had instituted were not vexatious, and she dealt, to some extent, with the substance of her complaints raised in all of the proceedings considered by Schmidt AJ, concerning her psychiatric health and her grievances about the way she perceived she had been dealt with. A number of the orders pressed, sought either to re-litigate matters which were already determined in earlier proceedings, or are a challenge to the judgment of Schmidt AJ.
Conclusion:
The Court dismissed the defendant’s notice of motion filed 5 February 2021. The defendant is to pay the plaintiffs’ costs of the notice of motion.
