Clark v Robards

Clark v Robards - [2010] NSWSC 522 - NSWSC 2010 case summary — Zoe

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JUDGMENT 1 HIS HONOUR: The third defendant sought by notice of motion filed on 12 August 2008 to strike out the plaintiff's statement of claim. Through no fault of the parties, that motion was not dealt with before that document had been succeeded by a series of amended versions. By the time the motion was ready for hearing, the current version of the statement of claim had become the second further amended statement of claim. That document was filed in Court on 30 April 2010. In anticipation of the plaintiff being permitted to rely on that pleading, the third defendant had prepared an amended notice of motion. That document was also filed in Court on 30 April 2010. 2 In this way, the third defendant's application became, and was treated by the parties as, one for orders that the second further amended statement of claim be dismissed generally pursuant to UCPR 12.7, dismissed pursuant to UCPR 13.4(1)(a), b) or (c) or struck out pursuant to UCPR 14.28(1)(a), (b) or (c). These reasons deal with that application. Background 3 The plaintiff is serving a period of imprisonment. He is not legally represented. The proceedings commenced by him relate, at least in part, to the events that have led to his current status. Both the form and content of the pleadings that are attacked, and the alacrity with which the proceedings have been prosecuted by the plaintiff, are a reflection of the fact that he appears for himself without legal assistance and that he is necessarily restricted or limited in his ability to gain access to resources and materials that he maintains are necessary for the proper conduct of his case. These matters are not in dispute but need constantly to be borne in mind. 4 The second further amended statement of claim is 147 paragraphs in length. It cannot conveniently be summarised. It purports to propound claims that are formulated in trespass, conspiracy, defamation and negligence. The case against the third defendant commences at paragraph 30, and is said to be brought pursuant to s 6 of the Law Reform (Vicarious Liability) Act 1983 and s 8 of the Crown Proceedings Act 1988 as a party vicariously liable for the torts committed by a person in the service of the Crown. In particular, the plaintiff nominates thirteen former members of the New South Wales Police Service as having committed the acts relied upon. 5 The plaintiff's original statement of claim was filed on 14 June 2005. It recited that some five years beforehand, a victim of an alleged sexual assault by the plaintiff had refused to give evidence against the plaintiff and the case collapsed. The plaintiff went on to allege that certain police officers had committed a trespass against him while executing a search warrant apparently involved with those proceedings. The first and second defendants would appear now to have taken the view that they should no longer respond to the plaintiff's allegations, or possibly cannot afford to do so, and have never appeared at any time since the proceedings first came before me for directions and case management.

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6 The second further amended statement of claim is a confronting document. It contains very serious allegations of misconduct by serving police officers including conspiracy, destruction and concealment of evidence, intimidation, soliciting bribes, malicious prosecution, wrongful arrest, false imprisonment, perjury, suborning witnesses, perverting the course of justice and defamation. These allegations are not properly pleaded or particularised. The defamation allegations are bad on their face to the extent that they contain no allegation or particulars of publication by any named defendant. There is an associated and probably irreparable failure to comply with any part of UCPR 15.19(1) or (2) relating to such a claim. 7 There are also a series of super-added allegations against Justice Health and the Department of Justice and Attorney General, the Commissioner for Corrective Services and the Department of Corrective Services. The case against Justice Health is notionally pleaded in negligence concerning what appears to be an allegation of instances of the maladministration of drugs to the plaintiff while in custody. These allegations are also not properly pleaded or particularised. 8 The case against the Corrective Services defendants is also notionally framed in negligence and alleges in effect that the plaintiff was not adequately or sufficiently accommodated or protected whilst in custody away from fellow prisoners who attacked him and left him unconscious. He also alleges that he has been denied and refused access to computers and like equipment in "pompous, arrogant and contumelious disregard" of recommendations made by me that he should be given access to these things. The plaintiff alleges that the Corrective Services defendants are in these circumstances somehow liable to him in damages. 9 In support of all of its claims for relief, the third defendant relied upon the affidavit of Christine Cody sworn 26 February 2010. Ms Cody is a solicitor employed by the Crown Solicitor's Office and has the carriage of this matter on behalf of the third defendant. The third defendant also relied upon two earlier affidavits of Sarah Therese Ryan sworn 10 March 2008 and 12 August 2008 respectively. 10 It is unnecessary to record the complete history of the matter in the extensive detail referred to in those affidavits. Some only of that history is recorded in what follows. Significant for present purposes is the fact that on 8 December 2008 I made an order by consent that the plaintiff file any further amended statement of claim upon which he wished to rely by no later than 23 January 2009. The matter was adjourned for further directions on 6 February 2009. 11 The third defendant was served with a further amended statement of claim on 13 January 2009. It added three new defendants and three new causes of action. Two defendants were removed. On 14 January 2009 the plaintiff provided the third defendant with a letter purporting to provide corrections to the document. On 18 January 2009 the third defendant received a letter from the plaintiff proposing a consolidation of his District Court criminal matters with these proceedings. 12 On 3 February 2009 the third defendant sought further and better particulars of the further amended statement of claim. The plaintiff provided these in some detail by letter dated 20 February 2009. However, the third defendant successfully contended that the length of the particulars was not necessarily coextensive with their adequacy and obtained an order from the Registrar on 23 February 2009 that the plaintiff provide what the Registrar's order describes as "a proper response" by 16 March 2009. The plaintiff was also ordered to provide an evidentiary statement by the same date. 13 On 23 March 2009 the matter came before the Registrar for a status conference. Among other things, the Registrar granted the parties leave to approach my Associate with a view to obtaining a hearing date for the proceedings after 24 April 2009. Further correspondence followed from the plaintiff in curious terms that are not presently important. In the end result the plaintiff indicated that his (then) pending criminal trial had been scheduled to commence on 11 May 2009 with an estimated duration of eight weeks. The third defendant in those circumstances requested the Registrar to list the matter on 10 August 2009 in order to enable the plaintiff to consider his position. 14 By letter dated 17 July 2009 the plaintiff informed the third defendant of a number of matters including the following: "I note the matter is listed for status conference on 10 August 2009. On that day I will seek leave to amend my further amended statement of claim adding the 5 counts I was found not guilty of before Judge Norrish recently." 15 The matter returned to me on 10 August 2009. Among other things I directed the plaintiff to furnish the third defendant with any notice of motion and proposed amended pleading upon which he proposed to rely by 11 September 2009, and I listed the matter before me on 14 September 2009 for directions. Before that occurred the third defendant wrote two letters to the plaintiff. The first is dated 9 September 2009 and is in the following relevant terms: "I refer to the above matter and acknowledge receipt of the following documents…

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(2) The court may receive evidence on the hearing of an application for an order under subrule (1)." 26 The principles are well known and often repeated. As was explained in Agar v Hyde [2000] HCA 41; 201 CLR 552 by Gaudron J at [57]: "The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." 27 The second further amended statement of claim is in such a form that it makes any proper assessment of its content difficult. I take it to be the third defendant's position on this application that the proceedings are incapable of formulation as a pleading in a proper way so that no matter what approach is taken the proceedings do not have any prospect of success and possibly also that they have no real prospect of resulting in a substantial remedy and involve unjustifiable expense or use of judicial resources. I acknowledge that the effect of an order under this rule is to bring the proceedings to an end at an interlocutory stage so that the exercise of the power conferred by the rule will only be appropriate where the defect in the plaintiff's claim is clearly established. There is a close analogy with the "triable issue" concept in the sense discussed in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 and elsewhere. The rule empowers the Court to make an order upon an examination of the pleadings if that examination shows that the case is absolutely hopeless or there is no possibility of the facts pleaded giving rise to a good cause of action: Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 90. 28 The application in this case has in effect been made on the pleadings. In such a case, where no evidence is adduced, the applicant for summary disposal must accept the truth of all allegations in the opposing pleading, including the ranges of meaning that the assertions of fact in that pleading are capable of bearing. Although the third defendant relied on the evidence to which I have referred, it was not evidence that sought to challenge the factual basis of the prima facie assertions that are capable of being derived from the pleading in its current form. The evidence relied on by the third defendant went more to the procedural aspects of the case, including delays that are said to have occurred, as well as some failures by the plaintiff to comply with the Felons (Civil Proceedings) Act 1981. In other words, this is not a case where the third defendant proffers evidence that, if accepted, would contradict the plaintiff's case taken at its highest. The evidence is wholly restricted to what has taken place in the course, and in the conduct, of the proceedings so far. 29 Nor was there substantial legal argument directed to demonstrating the hopelessness of the plaintiff's claim. That was to my observation the product of a quite proper recognition and acceptance by Ms Sibtain on behalf of the third defendant that at least some of the current pleading raises an arguable point of law. Subject to what appears below, the pleading for the most part describes a claim, or a series of claims, that cannot be characterised as hopeless or even as novel. Although it may be a considerable understatement, the pleading is on one view of the matter merely ill expressed and on an application for an order under this rule a liberal interpretation of the pleading should be given. In order to justify an order under this rule the putative offending pleading must be beyond saving by legitimate amendment. With the exception of the case pleaded in defamation, I do not consider that it is. 30 Frequent amendment is said to be a familiar feature of complex litigation. The same thing can often be said of cases where the plaintiff is not legally represented. This is such a case. Whether or not any further amendment ought to be permitted is dealt with below. The ability of any other amended pleading to withstand challenge in this case remains to be seen. 31 In my opinion, the case that has been pleaded by the plaintiff has at least identified his intention to sue the third defendant for the causes of action referred to at [6] above. With the exception of the case pleaded in defamation I consider that none is so obviously hopeless that it should be dismissed. The defamation pleading is wholly limited to the following paragraphs: "76. In amplification of the above the plaintiff alleges that the media picked up the above matters and ran 'same' as a major editorial against the plaintiff. Including the Manning River Times December 2009 issues and because of this media reporting the plaintiff was seriously defamed.

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That, by reason of the facts outlined above the plaintiff has suffered loss and damage for which the third defendant is liable." 32 In my opinion those paragraphs clearly indicate that the case in defamation is absolutely hopeless. The claim is certainly incapable of withstanding an attack pursuant to UCPR 14.28 but there is also no possibility of the facts pleaded giving rise to a good cause of action. There is no allegation that the third defendant published any of the material that the plaintiff contends defamed him or that the third defendant had any conceivable role in or connection to the alleged publication by others. There is no way of knowing what was published or precisely when. In my opinion so much of the second further amended statement of claim as pleads a case framed in defamation against the third defendant should be dismissed. 33 Subject to one matter, however, I am not satisfied that the third defendant has established that the balance of the case pleaded against it should also be dismissed. That matter concerns the relationship, if any, between the facts that the plaintiff promotes in support of his several causes of action in this case and the circumstances that were dealt with by Johnson J in Clark v State of New South Wales [2006] NSWSC 673; (2006) 66 NSWLR 640. The opening paragraph of his Honour's judgment in that case is as follows: "The Plaintiff, Peter Frederick Clark, has commenced proceedings against the Defendant, the State of New South Wales, seeking damages for false imprisonment, false arrest, malicious prosecution and abuse of process. The Defendant is sued in respect of alleged acts or omissions of members of the New South Wales Police. On 11 October 2004, the proceedings were called on for hearing before Wood CJ at CL. The hearing did not commence. Senior counsel for the Plaintiff informed the Court that the Plaintiff possessed an audio cassette said to contain a record of a conversation between the Plaintiff and a police officer in which the police officer solicited a bribe from the Plaintiff. The tape was said to be of great significance to the proceedings. The case was adjourned to allow technical analysis of the tape for use at a future hearing of the matter and the Court gave directions for this purpose. Soon after, the Plaintiff destroyed the tape. The Defendant now seeks that the proceedings be stayed or dismissed alleging that the Plaintiff's conduct constitutes an abuse of process." 34 Neither the plaintiff nor the third defendant addressed me on the question of whether or not, or if so to what extent, any of the facts and circumstances upon which the plaintiff presently seeks to rely as the foundation for his variously pleaded causes of action are in whole or in part a replication of any of the events that were considered at great length and in commendable detail by his Honour. It would be a matter of some particular concern if there were even the slightest prospect that a failure to compare the facts in that case with those upon which the plaintiff now wishes to proceed were to result in two contradictory or conflicting decisions by two judges at the same level in this Court on the same or similar facts. 35 With the exception of the case pleaded in defamation I am not prepared therefore to make any final determination of the third defendant's application for orders pursuant to UCPR 13.4 until such time as I have been given the benefit of further argument on the matter from both sides. The final result in that case was affected by a particular circumstance that has not been referred to before me and its importance or relevance is presently unclear. However, of more pressing concern is the fact that the events in the case heard by his Honour conspicuously and somewhat troublingly appear to include many of the personalities and span much of the period that the plaintiff now wishes to rely on. It may in any event be important, or at the very least instructive, to consider his Honour's reasoning in the earlier case, and to have the parties' submissions upon it, before finally determining the third defendants application for a dismissal of the proceedings. I note that his Honour dismissed the earlier proceedings pursuant to the same rule. At present I consider that there is a disquieting redolence of the plaintiff's case to be found in the earlier proceedings, which requires an explanation, and I am disinclined to determine the present application until it has been provided. 36 I will require the parties to give consideration to these matters when the proceedings are back before me as anticipated at [46] and [47] below. 37 UCPR 14.28 is relevantly as follows: " 14.28 Circumstances in which court may strike out pleadings

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(c) is otherwise an abuse of the process of the court." 38 In coming to terms with the form of the second further amended statement of claim, and the third defendant's attack upon it, it is necessary to have regard to the plaintiff's present predicament. It is true that the rules of court and the essential niceties of pleading serve important functions in the efficient and economical conduct of litigation and that any departure from a strict compliance with either of them should ordinarily only be sought or permitted on a reasoned and principled basis. Such sentiments have only recently been notoriously and authoritatively reaffirmed by the High Court of Australia and more recently by the Court of Appeal in McGuirk v University of New South Wales [2010] NSWCA 104 per Young JA when his Honour said at [47] that "there must be limits to situations where the court puts aside basic principles because of a need to produce a quick or cheap result". 39 These things notwithstanding, the plaintiff in this case finds himself in circumstances that are wholly inimical to the conduct of almost any commercial or forensic task. As the many transcripts of what has occurred in this case over the years will reveal, and as judgments delivered by both Hidden J and me have shown, the plaintiff has for long and often sought assistance with things such as access to materials and equipment that even the most indigent unrepresented litigants at liberty in the community take for granted. Although framed in terms of prayers for relief from this Court, none of these requests has been soundly based on a proper cause of action or a justiciable complaint and the comments and recommendations that have been made about them were neither intended to be judgmental nor were they capable of being enforced. 40 The realistic position appears to be that the plaintiff will for the foreseeable future be left to his own devices with limited and inadequate resources to prosecute the present proceedings. That is an inconvenience to him and it is also an inconvenience to the third defendant whose commendable forbearance so far is deserving of some recognition in the form of an early and practical resolution to this long running case. 41 The second further amended statement of claim is an embarrassing document and has the potential to cause prejudice and delay. This is the matter of most pressing concern. It does not in my opinion, at least on a charitable view, and considering the circumstances to which I have referred, fail to disclose at least the possibility of a reasonable cause of action although it is in urgent need of life saving surgery if it is to serve any proper purpose when this matter is finally heard. I do not consider that it is an abuse of process. 42 Ms Sibtain has once again quite properly and commendably conceded that the prospect of prejudice to the third defendant, while apparent, is probably not yet real. Her submissions included the following: "I should say to your Honour there is no particular evidence of prejudice that I can point to by the way of the death of a witness or anything of that kind, but I say from the bar table, although I think it might be somewhere in the correspondence, since the commencement of proceedings at least two of the officers have left the force and their whereabouts is presently unknown by those who instruct me. No doubt they could be tracked down. I say no more than that, except there was some evidence of prejudice put before her Honour Justice Simpson from the first two defendants which has led them essentially to abandon these proceedings unless or until something actually happens." 43 Nor can it be said that these are (yet) proceedings that cannot be fairly or properly determined because of prejudicial delay since the events to which they relate. They are not apparently being maintained for a collateral purpose and none is suggested. Most importantly the proceedings are not doomed to fail for the reason that no reasonable cause of action is disclosed or because they are untenable in the circumstances that are known to exist at present. 44 I was at one time of the view that it would have been the most efficient use of this Court's time, and consonant with the overriding purpose, to permit the matter to proceed to a hearing as presently pleaded so that the plaintiff would be forced to confront head-on any inadequacies of the current pleading at that time and stand or fall with the outcome of any attack that the third defendant may seek to mount. However, the third defendant is attacking the pleading now and even though there is a prospect of further interlocutory hearings, and no certainty about when a final hearing may be possible, the third defendant's complaints are real and adjudication of them cannot reasonably be postponed again. Indeed, part of the third defendant's concerns in this respect have been captured in Ms Sibtain's submissions to me, including the following: "There is further correspondence through February and March 2007 asking the plaintiff to move this case forward, and your Honour sees that 5 April 2007 was the first sign from the defendants of a motion to have the matter dismissed for want of due prosecution pursuant to the rules…

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On 26 April 2007, rather than dealing with the pleading that was on foot one finds an amended statement of claim which was said to deal with the pleading defects but indeed adds further matters, further allegations. I won't take your Honour back through those but your Honour will immediately see when you go through that pleadings folder that on occasions where the plaintiff is asked to clarify and to focus his case, that case becomes less clear and more unfocused as the matter has progressed, adding as it does further causes of action without clarifying those already brought." 45 I am not at all confident that the plaintiff will ever produce a properly pleaded statement of claim, but I am not presently prepared to say that it will never be produced. The current pleading has every likelihood of causing delay at an interlocutory stage and at the hearing. It will patently continue to cause procedural prejudice and has done so already. It cannot withstand the third defendant's present assault upon it. The plaintiff should be given another chance to correct the defects in his pleading, although he must understand and appreciate that there is a prospect that a time may arrive when no further opportunity to do so will be extended to him. I am not prepared to say that such time has yet arrived and it is obviously inappropriate for me to express any view about whether it ever will. Conclusions and orders 46 In these circumstances, subject to what follows, I consider that the second further amended statement of claim should be struck out. The plaintiff should be given leave to replead his case in proper form within a reasonable time, with the exception of the case nominally pleaded as a cause of action for defamation, which I have already dealt with. However, I will postpone making final orders to this effect until I have heard the parties on the matters discussed at [33] to [36] above. 47 Accordingly, I direct that the proceedings be listed before me at 9.30am on Friday 2 July 2010 for mention for the purpose of hearing the parties on this further matter, on what is a reasonable time to permit the plaintiff to replead his case (if applicable) and on the question of the costs of the motion.

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