Clark v Robards

Court of Appeal (NSW)|2015-05-05|Before: Beazley P, Basten JA, Hidden J, Harrison J, Johnson J

Solicitors: Applicant Self-represented R Kelly - Acting Crown Solicitor (Third Respondent) File Number(s): CA 2014/164527 Decision under appeal Court or tribunal: Supreme Court Citation: [2014] NSWSC 742 Date of Decision: 17 June 2014 Before: Hidden J File Number(s): 2002/69098; 2005/269279

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Procedural background

The procedural background is complicated by the fact that the applicant had earlier instituted separate proceedings for damages, to which the State of New South Wales was the sole defendant, which have become known as "the 2002 proceedings". Why they are so known is obscure. At one stage those proceedings were before Johnson J in the Common Law Division and the further amended statement of claim was "dismissed". [2] Johnson J referred to the proceedings having been commenced in the Taree District Court on 1 September 1998; that matter was apparently sought to be transferred to the Supreme Court on 15 May 2001, followed by a statement of claim being filed in the Supreme Court on 21 May 2001. [3] So far as appears from the description of the causes of action in the judgment of Johnson J, the conduct particularised in the 2005 proceedings post-dated the conduct the subject of claims in the 2002 proceedings and involved different individuals. The inter-relationship between the two proceedings is not a matter which either party called to the attention of the Court on the present application, but it was relevant at more than one stage of the procedural history set out below.
A further factor which became relevant to aspects of the chronology was the applicant's custodial status from time to time.
Virtually all the conduct complained of involved the applicant's contact with police on a variety of charges and, after his conviction for a number of serious offences, the circumstances of his incarceration. His period of incarceration was not continuous. Relevantly for present purposes, the first period commenced on 12 December 2006 and continued until June 2008; the second period commenced on 8 April 2009 and is continuing.
Following the judgment of Johnson J with respect to the 2002 proceedings, the applicant sought leave to appeal. That appeal was not finally determined until 22 May 2012 when it was allowed in part, with the result that certain paragraphs of a further amended statement of claim were struck out but the remaining matters were allowed to proceed.
The inter-relationship between the two proceedings arose on 13 May 2013 when the applicant filed a document described as "submissions" in support of a motion by which he sought to "add the two parts of the 2002 claim reinstated by the Court of Appeal in April 2012 to the latter claim filed in 2005". The redrafted pleading was said to be in two parts, Part A dealing with conduct of the Robards and the State and Part B being further claims for damages against the State in various emanations.
That motion was before Hidden J, but was dismissed, consistently with the order dismissing the 2005 proceedings. That order is not challenged.
It should be presumed for present purposes that there is no relevant overlap between the two sets of proceedings.
In 2013 the applicant commenced a third set of proceedings which may be conveniently referred to as "the judicial review proceedings". These proceedings have reached the stage of a second further amended summons dated 27 January 2014. The summons sought orders setting aside various decisions made in the course of the applicant's incarceration, namely: (i) to classify him to Goulburn Correctional Centre; (ii) to require him to share a cell with another inmate; (iii) not to reissue him a computer and allow his 11 tubs of legal files to be kept in his cell; (iv) not to allow him to purchase a larger than standard TV monitor; (v) challenging his charge, conviction and sentence of a disciplinary offence; (vi) ordering "the defendant" to arrange a medical-psychiatric examination of him, and (vii) to issue him with a chair, desk and/or table in his cell.
There were six defendants named in those proceedings, being the State, the Attorney General, the Commissioner of Corrective Services, the Department of Corrective Services, Justice Health and the entity apparently responsible for the operation of Parklea Correctional Centre, GEO Group Australia Pty Ltd.
This proceeding was dealt with by Hidden J in a separate judgment delivered on 17 June 2014. [4] The effect of the orders then made was to dismiss the summons with respect to each matter other than the challenge to his conviction and sentence for a disciplinary offence. With respect to that matter, the judge thought he should have leave to replead to seek appropriate relief by way of judicial review, in accordance with Pt 59 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
A summons was issued on 8 August 2014 seeking leave to appeal against the dismissal of the judicial review summons, with respect to each decision other than the disciplinary charge.
By the time that summons came before this Court, the challenge to the disciplinary charge had already been disposed of, Hamill J dismissing that aspect of the summons on 20 March 2015. [5] No objection was taken by counsel for the State to the expansion of the application for leave to appeal in the judicial review proceedings to cover the judgment of Hamill J.
The Court made orders at the hearing of the leave application with respect to the judicial review proceedings, granting leave to appeal with respect to the judgment of Hamill J (disciplinary charge) and referring the application for leave to appeal with respect to the other decisions to the Court hearing the appeal with respect to the judgment of Hamill J. These matters do not require further consideration in these reasons.

Application before primary judge

The primary focus of the reasons given by the trial judge for dismissing the 2005 proceedings was a motion filed on behalf of the State seeking - (a) to have the proceedings dismissed: (i) for want of due dispatch, pursuant to UCPR r 12.7; or (ii) as vexatious and an abuse of process, pursuant to r 13.4; or (b) to have the further amended statement of claim struck out as an abuse of process and tending to cause prejudice, embarrassment or delay, pursuant to r 14.28.
One procedural curiosity is that, as the primary judge noted, the first and second defendants had "taken no part in the proceedings since an early stage." [6] The basis upon which the proceedings against them were dismissed is not clear; they did not seek any such order.
No doubt because the applicant was ordered by Harrison J to replead his claims in the 2005 proceedings (other than the claim in defamation which was dismissed), Hidden J dealt with the material before him by reference to the proposed combined statement of claim, Parts A and B.
As the primary judge noted, paragraphs 1-26 of Part A dealt with claims in trespass and conspiracy against the first defendant Timothy Robards and paragraphs 27-33 with a claim in trespass against the second defendant Terrence Robards. The paragraphs reproduced and expanded upon pars 1-29 of the 2005 pleading. [7]
There is no doubt that a conspiracy charge (Part A, par 10) could and should have been struck out as embarrassing and not disclosing a cause of action. However, a complaint of trespass on 3 July 2003, a second complaint of trespass on 7 November 2003 and allegations of conspiring to falsely accuse the applicant of criminal conduct were not obviously embarrassing in their terms.
The primary judge dealt with paragraphs 37-54 of Part A as reflecting claims made in the 2002 pleadings. They can properly be disregarded on the basis that the pleadings are not to be combined. There followed a number of allegations against police officers for which the State was said to be liable.
Paragraphs 55-71 alleged, in effect, a conspiracy by identified police officers to have the applicant charged with a number of offences of which he was convicted at trial, but in respect of which the convictions were set aside in part. This cause of action, specified as trespass, appeared in the earlier pleading of the 2005 proceedings.
Paragraphs 72-118 alleged a number of incidents of "trespass", each involving a step from the arrest to the prosecution and conviction of the applicant on various charges, the events taking place between 30 June 2006 and 18 May 2009. Parts of these paragraphs were contained in the 2005 proceedings as pleaded before Harrison J, parts were new and parts reflected pleadings in proceedings which had been dismissed by Johnson J and not reinstated on appeal. The claim against the State with regard to the charges, on most of which he was convicted, appears to have been for malicious prosecution, although while the convictions remained, the criminal appeal not having been determined, that claim could not succeed. Whether separate causes of action for trespass, false imprisonment and conspiracy could be maintained in such circumstances might be doubtful.
It is convenient to deal with these claims before turning to the quite separate matters raised in Part B. The primary judge dealt with the question of dismissal or striking out of the pleadings by outlining a procedural history in some little detail, commencing with the 2002 proceedings. [8] He then turned to deal with the progress of the 2005 proceedings noting particular events which had occurred since the orders made by Harrison J. He noted evidence that between 2003 and 2012 seven of the police officers the subject of the applicant's claims had been discharged on medical grounds and an eighth was expected to be discharged in the near future. [9]
After concluding that the proposed combined pleading was inappropriate, the judge turned to deal separately with the 2002 proceedings and the 2005 proceedings. He dealt with the 2005 proceedings first. That had a curious consequence.
In addressing the 2005 proceedings, he noted that the current application had been made approximately 2.5 years after Harrison J had granted leave to replead. The reasoning continued: [10] "Whilst that delay may be partly explained by his conduct of the appeal against the decision of Johnson J, it must be viewed against the background of the substantial delay attending the proceedings from their outset, including the period during which Harrison J was dealing with them. Moreover, as [counsel for the State] pointed out, the proposed pleading in large part reproduces the 2005 pleading and fails to address the problems with it identified by Harrison J."
There follows a passage in which the primary judge noted the difficulties faced by the applicant in achieving a degree of progress whilst in custody. [11] While noting that the State's claims that the proceedings were vexatious and an abuse of process had substance, he concluded that the 2005 proceedings should be terminated "on the basis of want of due despatch." [12] The reasons continued: "As [Harrison J] foreshadowed, the time has arrived when no further opportunity to [replead] should be extended to him. Balancing the legitimate interests of the parties, justice requires that the proceedings be dismissed. That includes the claims against the Robards, even though they were not parties to the present motions."
The primary judge then turned to the 2002 proceedings, noting that they were "older than the 2005 proceedings, as are (with one exception) the events of which they complain." [13] He noted that their progress had also been delayed by the judgment of Johnson J and the appeal from it which had not finally be determined until May 2012. He noted that the motion to amend in accordance with the leave granted on appeal, had been filed less than two months after the expiration of the permitted period. He declined to dismiss the 2002 proceedings.
That result appears somewhat anomalous, in two respects. First, the events complained of in the 2005 proceedings were, as the judge noted, more recent than those complained of in the earlier proceedings. Secondly, accepting that the decision of Johnson J and the delay in resolving the appeal from it provided a justification for the lapse of time in respect of the 2002 proceedings, also suggested that the delay with respect to the 2005 proceedings was partly explained. In short, the justification for striking out the 2005 proceedings, based on delay, when the 2002 proceedings remained on foot, is arguably unjustified.
Although the primary judge also accepted that there was substance in the State's complaint that some of the pleadings might properly be struck out as an abuse or as tending to cause prejudice or embarrassment, it would have been necessary to deal with those complaints by reference to specific causes of action. That course was not taken. At least with respect to some matters, the facts pleaded are clear and the cause of action is reasonably available.
On one view, much of the delay has been caused by the refusal of the defendants to plead defences which are clearly open to them and which, in some cases, might lead to summary dismissal of particular claims. In particular, it is quite unclear why the applicant is responsible for the delay with respect to the claim against the Robards, who have apparently neither pleaded a defence nor sought to have the claims dismissed.
In his judgment of 4 June 2010, Harrison J noted: [14] "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."
There is an arguable case that a selective approach to the pleading would, even then, have resulted in some causes of action remaining on foot. There is an arguable case that the global approach, dismissing the proceedings for delay, was inappropriate. The applicant should have leave to appeal against so much of the judgment of the primary judge as dismissed paragraphs of the proposed amended pleading which dealt with causes of action to be found in the 2005 pleading considered by Harrison J in June 2010.

New Claims

The proposed pleading, in Part B, sought to introduce a number of new claims for damages arising out of events which occurred whilst the applicant was in custody. The most serious of those events was an alleged attack in which he was "repeatedly bludgeoned" whilst held in custody at the Metropolitan Remand and Reception Centre, Silverwater, on 14 November 2007.
The alleged attackers were persons who, on the pleadings, should have been known to be people from whom the applicant might fear violence and who should not have been allowed either to obtain the weapon with which they assaulted the applicant or to have had access to the applicant. The claim alleged negligence on the part of the State in allowing the attack to take place.
Precisely how the new claims were dealt with was not entirely clear, except that they fell within matters requiring leave under the Felons (Civil Proceedings) Act 1981 (NSW). They could, and should, properly have been struck out on that basis. No further steps can be taken by the applicant in that regard, absent a grant of leave. Accordingly, no further attention can be given to them in this Court and, in so far as they are the subject of the present application for leave to appeal, that leave should be refused.

Conclusion

The Court should make the following orders: (1) Grant leave to appeal against so much of the judgment of Hidden J as dismissed paragraphs of the proposed amended statement of claim which dealt with causes of action to be found in the 2005 pleading, other than conspiracy charge (Part A, par 10), considered by Harrison J in June 2010; (2) Otherwise dismiss the summons seeking leave to appeal; (3) Costs of the application to be costs in the appeal.

Endnotes

Clark v State of New South Wales [2014] NSWSC 742.
Clark v State of New South Wales [2006] NSWSC 673; 66 NSWLR 640.
Johnson J at [10]-[13].
Clark v State of New South Wales [2014] NSWSC 801.
Clark v State of New South Wales [2015] NSWSC 246.
Judgment at [10].
Judgment at [21].
Judgment at [81]-[85].
Judgment at [88].
Judgment at [91].
Judgment at [92]-[94].
Judgment at [96].
Judgment at [98].
Clark v Robards [2010] NSWSC 522 at [44]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 May 2015

At a glance

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Judgment (8 paragraphs)

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Legislation Cited (2)

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Cited By (5)