Clarke v South Eastern Sydney Local Health District

• Jurisdiction: Australia Federal only
• Judgment Date: 06 November 2020
• Neutral Citation: [2020] FCA 1616
• Court: Federal Court
• Date: 06 November 2020

Federal Court of Australia

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

Appeal from:	Application for leave to appeal from: Clarke v Nursing and Midwifery Council New South Wales [2019] FCA 1782
File numbers:	NSD 1880 of 2019 NSD 1881 of 2019 NSD 1882 of 2019
Judgment of:	ABRAHAM J
Date of judgment:	6 November 2020
Catchwords:	PRACTICE AND PROCEDURE – application for leave to appeal decision of the primary judge refusing leave to commence proceedings under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) – whether sufficient doubt to warrant the grant of leave – whether error in primary judge’s reasons and orders reasonably arguable – no error made out – application dismissed
Legislation:	Australian Human Rights Commission Act 1986 (Cth) ss 46PO, 46PH Disability Discrimination Act 1992 (Cth) Federal Court of Australia Act 1976 (Cth) s 37M Racial Discrimination Act 1975 (Cth) Federal Court Rules 2011 (Cth) rr 16.21(1)(b), (d), (f)
Cases cited:	Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 371 ALR 545 Bellamy’s Australia Limited v Basil [2019] FCAFC 147 BPL20 v Minister for Home Affairs [2020] FCA 1207 Budini v Sunnyfield [2019] FCA 2164 Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246 Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 EBT17 v Minister for Home Affairs [2019] FCA 200 House v The King (1936) 55 CLR 499 James v WorkPower Inc [2018] FCA 2083 Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 Jones v Westpac Banking Corporation [2020] FCA 238 King v Lintrose Nominees Pty Ltd [2001] VSCA 140; (2001) 4 VR 619 Matthews v Markos [2019] FCA 1827 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 Nationwide News Pty Limited v Rush [2018] FCAFC 70 Ryan v Commissioner of Police, New South Wales Police Force [2019] FCA 1607 Rossi v Qantas Airways Ltd (No 2) [2020] FCA 1080 Samsung Electronics Co. Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 Snowside Pty Ltd as trustee for the Snowside Trust, in the matter Boart Longyear Ltd [2019] FCA 2159 Wilson v Britten-Jones (No 2) [2020] FCA 1290
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	61
Date of hearing:	1 July 2020
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondents:	Mr S Kettle
Solicitor for the Respondents:	Hicksons Lawyers

ORDERS

		NSD 1880 of 2019
BETWEEN:	SHARMAIN DAISY CLARKE Applicant
AND:	SOUTH EASTERN SYDNEY LOCAL HEALTH DISTRICT Respondent

order made by:	ABRAHAM J
DATE OF ORDER:	6 november 2020

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

		NSD 1881 of 2019
BETWEEN:	SHARMAIN DAISY CLARKE Applicant
AND:	NURSING AND MIDWIFERY COUNCIL NEW SOUTH WALES Respondent

order made by:	abraham j
DATE OF ORDER:	6 november 2020

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

		NSD 1882 of 2019
BETWEEN:	SHARMAIN DAISY CLARKE Applicant
AND:	SUSAN DALE Respondent

order made by:	abraham j
DATE OF ORDER:	6 November 2020

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...