[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.]
[2]
judgment
BASTEN JA: It is now more than 14 years since 2002 when the applicant, Peter Frederick Clark, commenced the first proceedings seeking damages from the State with respect to his arrest and prosecution on three sets of charges. In 2005 separate proceedings were commenced against two individual respondents, and the State, alleging numerous instances of unlawful conduct.
These proceedings have had a long and tortuous history, which is recounted by Emmett AJA, with whose reasons I agree. On 17 June 2014 Hidden J made an order dismissing the 2005 proceedings. [1] With respect to the 2002 proceedings he extended the time granted by the Court of Appeal for repleading the claims from the original date of 22 May 2012, to 30 June 2014.
Mr Clark sought leave to appeal from the orders of Hidden J. On 22 May 2015 this Court granted leave, limited to the causes of action (other than a conspiracy charge) found in the 2005 pleading, in the form considered by Harrison J in June 2010. [2] The summons seeking leave was otherwise dismissed.
The reason for the form of the order granting leave was that the pleading before Hidden J was a composite document. [3] The first tranche (pars 1-26) dealt with claims in trespass and conspiracy against the first individual defendant. A second tranche (pars 27-33) involved a claim in trespass against the second individual defendant. In substance, those allegations were to be found in the 2005 pleading. The Court noted that a conspiracy charge (par 10) was properly struck out and excluded that matter from the grant of leave to appeal. The Court also excluded a third tranche (pars 37-54) which reflected claims made in the 2002 pleading.
A fourth tranche (pars 55-71) alleged a conspiracy by identified police officers to have the applicant charged with a number of offences, of which he had been convicted, but in respect of which the convictions were set aside in part. These too had appeared in the 2005 proceeding, though specified as "trespass". Finally, a fifth tranche (pars 72-118) identified a number of incidents of "trespass", each involving a step from the arrest to the prosecution and conviction of the applicant on various further charges, the events having taken place between 30 June 2006 and 18 May 2009. Part only of these had been included in the pleading before Harrison J, with respect to which leave had been granted to replead.
The new claims included a claim in respect of an attack on the applicant by a fellow inmate on 14 November 2007. The claim was brought in negligence alleging that the State had failed to protect the applicant from the attacker. Although the applicant was at large from June 2008 until April 2009, it appeared that the new claim fell within the scope of s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), as having been commenced whilst the applicant was in custody, with the result that it was unsustainable in the absence of leave, which had not been obtained. That part of the pleading also fell outside the grant of leave to appeal.
Leave to appeal was granted only with respect to so much of the pleading as had been the subject of the grant of leave to amend by Harrison J in 2010, for two reasons. Thus, to the extent that the events the subject of the 2000 proceedings were, with one apparent exception, later in time than those dealt with in the 2002 proceedings, there appeared to be an anomaly in striking out the 2005 proceedings, but allowing more time for repleading of the 2002 proceedings. With respect to delay, there was also a possible anomaly in allowing that the delay in resolving an appeal from a judgment of Johnson J from 2006 until May 2012 provided some justification for the lapse of time in respect of the earlier proceedings, but not the 2005 proceedings.
A detailed consideration of the procedural history, as set out by Emmett AJA, provides a sufficient explanation of the apparent anomalies. It lies in the very long delay from 30 June 2006, when Johnson J ordered that the 2002 proceedings be summarily dismissed, until May 2012 when this Court upheld, in part, Mr Clark's appeal. The disparity in treatment was explicable on the basis that the 2005 proceedings remained on foot throughout that period, although the criminal proceedings which gave rise to much of the delay were not accepted as a full answer to the failure to advance the 2005 proceedings.
The second basis on which leave was granted was the fact that, although some of the causes of action either had no substance or were pleaded in a manner which did not allow an assessment of their merit, that was not so in respect of all. Accordingly, the Court was concerned that an analysis of particular claims might have warranted some remaining on foot, whilst others were struck out, as had occurred before Harrison J with respect to the defamation claim and the conspiracy claim.
The submissions on appeal, however, took these matters no further than the material which had been before the Court on the leave application, much of which had also been before Hidden J. By way of example, several claims alleged trespass, namely the arrest of the applicant, when he was charged with a number of offences which were later dismissed without evidence having been proffered. He said in each case that "the cause of action is clearly defined and covers all the elements of the tort [of] malicious prosecution". However, neither of those statements was correct. In any event, the most recent causes of action arose in 2007 and many were over a decade old. No evidence was proffered which, if accepted, would be sufficient to support a claim for damages in tort, let alone significant damages.
Accordingly, although the Court should properly be wary of dismissing claims against the State, brought by a person who is held by the State in custody in circumstances which inevitably impede the ability to plead and prove a claim, the dismissal of the present claims does not raise concern that there might be a miscarriage of justice.
For these reasons, the matters which gave rise to the grant of leave to appeal have not been shown to support any finding of error in the result. Accordingly the appeal should be dismissed.
SIMPSON JA: I agree with Emmett AJA.
EMMETT AJA: This appeal is concerned with the summary dismissal for want of due despatch of proceedings brought in the Common Law Division by Mr Peter Clark (the 2005 Proceedings). The Statement of Claim that commenced the 2005 Proceedings, which was filed on 14 June 2005, named five defendants, being Timothy Robards, Terrence Robards, the State of New South Wales (the State), Detective Senior Constable Jeffrey Bryan and Registrar Douglas Wright. On 13 January 2009, Mr Clark filed a Further Amended Statement of Claim that removed Detective Senior Constable Bryan and Registrar Wright but purported to add three new defendants. In the events that occurred, the three additional defendants did not become parties and the 2005 Proceedings, for present purposes, can be taken to have been continued on the basis that the only defendants are Timothy Robards, Terrence Robards and the State.
The 2005 Proceedings involved claims against Terrence Robards and Timothy Robards of conspiracy and intimidation, and against the State of false arrest, false imprisonment and malicious prosecution, negligence in the administration of medication while in custody, negligence in failing to protect him from assault while in custody and negligence in failing to provide him with adequate access to computer facilities while in custody. The State was sued in several guises under the Crown Proceedings Act 1988 (NSW), relying upon the conduct of New South Wales police officers, Justice Health, the Department of Justice and the Department of Corrective Services, for which the State was said to be liable under the Law Reform (Vicarious Liability) Act 1983 (NSW).
In another set of proceedings, commenced by the Statement of Claim filed on 21 May 2002 (the 2002 Proceedings), Mr Clark made other claims against the State of false arrest, false imprisonment and malicious prosecution in 1997 and 2000. On 30 June 2006, after a hearing in August 2005, Johnson J ordered that the 2002 Proceedings be dismissed summarily as an abuse of process. Mr Clark appealed to this Court from that order. The appeal from the orders of Johnson J was first listed for hearing in June 2011 but the fixture was vacated pending the disposition of criminal proceedings against Mr Clark and the appeal was heard in April 2012. Judgment was given on 22 May 2012, when the Court set aside the orders made by Johnson J and directed Mr Clark to file a Further Statement of Claim within 3 months. [4]
On 17 June 2014, Hidden J (the primary judge) ordered that the 2005 Proceedings be dismissed. [5] At the same time as the primary judge heard the application for summary dismissal of the 2005 Proceedings, his Honour also heard an application for summary dismissal of the 2002 Proceedings for want of due despatch. His Honour declined to dismiss the 2002 Proceedings but, on 17 June 2014, ordered that the time for compliance with this Court's direction of 22 May 2012 be extended to 30 June 2014. That matter has a bearing on the dismissal of the 2005 Proceedings, as will become apparent.
In order to put the questions raised by the appeal in context, it is necessary to describe in some detail the progress of the 2005 Proceedings, as well as the 2002 Proceedings. That will include the manner in which Johnson J dealt with the earlier application by the State for summary dismissal of the 2002 Proceedings and the manner in which Harrison J dealt with an earlier application for summary dismissal of the 2005 Proceedings.
It is relevant, as will appear below, that Mr Clark is presently in custody at Goulburn Correctional Centre, having been convicted of a number of offences after trial in the District Court. In separate proceedings in the Common Law Division, Mr Clark sought judicial review in respect of decisions made concerning the conditions of his custody (the Conditions of Custody Proceedings). The Conditions of Custody Proceedings were dismissed [6] and an Application for Leave to Appeal from that dismissal was heard immediately following this appeal.
[3]
Progress of the 2002 Proceedings and the 2005 Proceedings
The 2002 Proceedings were commenced by Statement of Claim filed on 21 May 2002. On 23 and 24 August 2005, Johnson J heard a Notice of Motion brought by the State in the 2002 Proceedings, whereby the State sought orders that the 2002 Proceedings be stayed or be dismissed. On 30 June 2006, for reasons published on that day, Johnson J ordered that the Further Amended Statement of Claim in the 2002 Proceedings be dismissed and that Mr Clark pay the State's costs of the application. [7] Mr Clark sought leave to appeal from those orders. For various reasons, the Application for Leave to Appeal was not heard until 27 April 2012.
On 22 May 2012, for the reasons given on that day, this Court granted leave to appeal from the orders of Johnson J, and allowed the appeal in part. The Court set aside the orders made by Johnson J and, in lieu thereof, ordered that the State's Notice of Motion be allowed to the extent that certain paragraphs of the Further Amended Statement of Claim in the 2002 Proceedings that had been filed on 22 April 2004 be struck out. The Court directed Mr Clark to file, within three months, a Second Amended Statement of Claim removing any reference to the persons or causes of action pleaded in the paragraphs that were struck out.
The 2005 Proceedings were commenced by Statement of Claim filed on 14 June 2005. On 28 September 2005, Terrence Robards filed a Notice of Motion seeking, relevantly, an order that the Statement of Claim be struck out as an abuse of process or alternatively that the 2005 Proceedings be stayed and that Mr Clark be declared a vexatious litigant. On the same day, Mr Clark filed a Notice of Motion seeking that the 2005 Proceedings be temporarily stayed. By consent, the 2005 Proceedings were stood over to 14 December 2005.
On 7 December 2005, Terrence Robards filed another Notice of Motion seeking an order that the Statement of Claim in the 2005 Proceedings be struck out as an abuse of process. It is not apparent what happened to the Notice of Motion filed on 28 September 2005. On 14 December 2005, the 2005 Proceedings were stood over by consent to 6 February 2006.
On 6 February 2006, Mr Clark's Notice of Motion of 28 September 2005 and Terrence Robard's Notice of Motion of 7 December 2005 came before McClellan CJ at CL. Terrence Robard's Notice of Motion was not dealt with. The 2005 Proceedings were adjourned, with all orders requiring action to be taken by reference to time limits being stayed until 31 May 2006, when the State consented to an adjournment to 30 June 2006. On that day, all defendants consented to an adjournment to 1 December 2006 because Mr Clark was facing criminal charges, which were to be heard in September and November 2006.
On 24 October 2006, Mr Clark requested a further adjournment of the 2005 Proceedings because his criminal trial had been fixed for 27 November 2006. On 24 November 2006, the Crown Solicitors Office (the CSO) wrote to Mr Clark consenting to an adjournment and noting defects in his Statement of Claim. On 27 November 2006, Mr Clark requested that the 2005 Proceedings be adjourned to 2007.
On 12 December 2006, Mr Clark entered into custody again. On 4 January 2007, he wrote to the CSO indicating that he had been convicted on various charges in the District Court and that he intended to seek leave to appeal. He requested a further adjournment of the 2005 Proceedings. On 29 January 2007, the CSO informed Mr Clark that the State would consent to a four week adjournment on 2 February 2007 but would indicate to the Court that, on the next Court date, Mr Clark should inform the Court of his intention in relation to the matter. The CSO said that, if the matter was to proceed, a timetable should be set down.
On 2 February 2007, counsel for the State mentioned the matter on behalf of all parties and sought an adjournment for a further two months to allow Mr Clark to consider his position. Counsel for the State told the Court that Mr Clark would be informed that he ought to be in a position on the next occasion to indicate what was to happen to the 2005 proceedings. A status conference was fixed for 5 April 2007.
On 8 February 2007, Mr Clark requested that the State consent to the 2005 Proceedings being adjourned until his Application for Leave to Appeal in his criminal matter had been heard. On 5 March 2007, Mr Clark was informed that the State would not consent to a further adjournment. On 29 March 2007, the CSO requested Mr Clark to indicate his position for the proposed status conference on 5 April 2007.
Mr Clark did not appear at the status conference on 5 April 2007. Timothy Robards and Terrence Robards also did not appear. Counsel for the State indicated that there had been no response from Mr Clark as to his position and a timetable was sought for the defendants to file a Notice of Motion for dismissal for want of due despatch pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The 2005 Proceedings were listed for directions on 26 April 2007.
On 14 April 2007, Mr Clark informed the CSO that he may not be able to appear on 26 April 2007 and would seek a temporary stay, pending his release from custody. However, on 26 April 2007 Mr Clark appeared in person. The State proposed that the 2005 Proceedings be adjourned to 27 July 2007 and that, by 16 July 2007, Mr Clark either confirm his intention to seek a stay or serve an Amended Statement of Claim remedying the pleading defects identified in the letter from the CSO of 24 November 2006. The 2005 Proceedings were stood over until 27 July 2007 and Mr Clark was directed to file any evidence in support of an Application for Stay by 16 July 2007 or file an Amended Statement of Claim by that date. The Court noted the intimation that the State would approach the Department of Corrective Services concerning Mr Clark's access to his papers and a computer.
On 21 May 2007, Mr Clark filed a Notice of Motion in the Court of Criminal Appeal, seeking orders for 24 hour computer access and the provision of a printer. He also asked that the sentence imposed on 9 February 2007 be stayed. The Notice of Motion was not served on the State but came to the attention of the State when the court file was inspected. On 19 June 2007, at a status conference, Mr Clark requested that his Notice of Motion be referred to the duty judge for hearing. The Court ordered him to file and serve any affidavit evidence in support of his Notice of Motion no later than 27 July 2007. The listing on 27 July 2007 was vacated and the 2005 Proceedings were listed for directions on 17 August 2007.
On 30 July 2007, the CSO received a letter from Mr Clark saying that he no longer required directions regarding computer access and requested that the fixture for 17 August 2007 be vacated and the proceedings be adjourned for a minimum of two weeks after his appeal hearing. Mr Clark also said that, if his appeal process is unsuccessful he would withdraw his Statement of Claim in the 2005 Proceedings. The CSO responded on 6 August 2007, saying that the State would not consent to an adjournment and informing Mr Clark that the Court of Criminal Appeal had advised that the documents provided by him did not constitute a Notice of Appeal. The State asserted that it was prejudiced by the continual delay and proposed that orders be made for the filing and serving of an Amended Statement of Claim and further and better particulars on the next hearing date.
On 17 August 2007, orders were made by consent that Mr Clark file an Amended Statement of Claim by 24 August 2007, the State request further and better particulars by 14 September 2007 and Mr Clark provide the particulars by 12 October 2007. The matter was stood over for a status conference on 19 October 2007.
On 24 August 2007, Mr Clark provided a proposed Amended Statement of Claim to the CSO. On 28 August 2007, Mr Clark wrote again to the CSO acknowledging that errors had been made in the proposed Amended Statement of Claim. He also said that it was his belief that the appeal would succeed and that he would be acquitted. He said that those matters would be added later in a Further Amended Statement of Claim. The CSO wrote to Mr Clark on 6 September 2007 saying that the State did not consent to the filing of the proposed Amended Statement of Claim. The CSO said that a letter would be sent to Mr Clark setting out the defects in the pleading. On 13 September 2007, the CSO wrote to Mr Clark addressing at length the deficiencies said to be contained in the proposed Amended Statement of Claim. The letter requested Mr Clark to indicate within 14 days whether he would amend the pleading or whether he intended to file a Notice of Motion seeking leave to file the Amended Statement of Claim.
At the status conference on 19 October 2007, Mr Clark filed a Notice of Motion seeking orders for the provision of computer facilities. Hidden J dismissed the motion and referred the matter back to the Registrar with a recommendation that the Department of Corrective Services provide computer facilities to Mr Clark. The status conference continued before the Registrar, when Mr Clark said that he was unable to amend the Statement of Claim because of lack of access to a computer as he was sharing a cell with a "granny killer". The Registrar ordered Mr Clark to file and serve a motion seeking a stay supported by affidavit evidence by 16 November 2007 or, in the alternative, provide a reply to the CSO's letter of 13 September 2007 by that date. Mr Clark's motion was to be made returnable on 6 December 2007.
On 26 October 2007, the CSO wrote to the Superintendent of Long Bay Correctional Centre recommending that Mr Clark be provided with access to a computer. However, on 14 November 2007, Mr Clark suffered serious injury when he was assaulted in prison with a fire hose. It appears that he continues to suffer continuing incapacity as a result of the injury he suffered in the assault.
At the status conference on 6 December 2007, Mr Clark provided a Notice of Motion seeking a temporary stay pending recovery from the injuries he suffered in the assault on 14 November 2007. He also sought an order that the State secure a copy of the security video of the assault. The Court directed that Timothy Robards and Terrence Robards be served with the Notice of Motion and directions were given for the filing of evidence. The matter was fixed for hearing on 24 April 2008.
On 25 March 2008, the CSO received a letter from Mr Clark dated 15 March 2008. Mr Clark sought a stay on the ground of his medical condition resulting from the assault. He also said that it was physically impossible to prepare legal documents because he did not have a desk or chair, had a bad back and suffered from major depression. On 27 March 2008, the CSO received a letter from Mr Clark dated 22 March 2008 serving a draft Amended Statement of Claim. He requested a copy of the security footage of the assault. On 18 April 2008, the CSO informed Mr Clark that the State did not consent to a stay.
On 24 April 2008, Mr Clark's Notice of Motion of 6 December 2007 was heard by Simpson J. Her Honour ordered that the motion be dismissed with costs.
Mr Clark provided a draft Amended Statement of Claim to the Court on 24 April 2008. On 13 May 2008, the CSO wrote to Mr Clark in response to the draft Amended Statement of Claim advising him that the State did not consent to the filing of it in its current form, and setting out particulars of objections in detail. The objections included the fact that new allegations against other police officers, which were prohibited by s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) had been included as well as new allegations of false imprisonment and malicious prosecution.
On 13 June 2008, Mr Clark was released from custody on parole. He was taken back into custody in April 2009, was convicted of a number of charges and has remained in custody since that time.
At a status conference before a Registrar on 11 July 2008, Mr Clark sought an adjournment. The State requested that he properly indicate in writing within one week as to why the adjournment was required. He was ordered to inform the State of his position by 1 August 2008 and the matter was listed before the duty judge on 18 August 2008.
On 4 August 2008, the CSO received an affidavit filed by Mr Clark on that day. On 12 August 2008, the CSO wrote to Mr Clark in response to the affidavit, saying that Mr Clark had failed to articulate his pleadings properly or provide a proper answer to the request for particulars. Mr Clark was informed that the State did not consent to the matter being further adjourned and filed a Notice of Motion seeking orders for dismissal or striking out of Mr Clark's claims. On 15 August 2008, Mr Clark filed a Notice of Motion seeking various orders, including that the 2005 Proceedings be stayed pending the conclusion of his criminal proceedings.
On 18 August 2008, the State's Notice of Motion for dismissal or strikeout came before Harrison J. Harrison J adjourned the hearing of the motion and granted liberty to the State to restore its motion on 7 days' notice following the conclusion of Mr Clark's criminal proceedings. The 2005 Proceedings were listed for mention on 8 December 2008.
It appears that Mr Clark's criminal proceedings were adjourned to 16 February 2009. The circumstances of the adjournment are unclear. On 3 December 2008, Mr Clark served a Notice of Motion seeking an order that the 2005 Proceedings be adjourned until after his criminal proceedings were complete. He submitted that anything that he put before the Court in the 2005 Proceedings may jeopardise his acquittal in the criminal proceedings. Mr Clark filed an Amended Notice of Motion seeking similar relief on 4 December 2008. He also filed an affidavit. On 5 December 2008, the CSO wrote to Mr Clark saying that the State objected to the orders sought in his Notice of Motion on the basis that he had had ample opportunity to amend his pleading, and that he was legally represented in the criminal proceedings and therefore ought to be in a position to prepare an amended pleading in the 2005 Proceedings.
On 8 December 2008, the 2005 Proceedings came before Harrison J again. Mr Clark handed up an Amended Notice of Motion seeking an adjournment pending determination of his criminal proceedings on 16 February 2009. Harrison J ordered Mr Clark to file a Further Amended Statement of Claim no later than 23 January 2009, and adjourned the State's motion of 12 August 2008 and Mr Clark's motion of 8 December 2008 for further directions on 6 February 2009. His Honour noted that the primary reason for the matter being adjourned on the last occasion was because Mr Clark had to prepare for the criminal proceedings. His Honour said that, as the trial was originally to be heard in October 2008 and it was adjourned at the request of the Crown, the bulk of the preparation had presumably been done and Mr Clark should therefore be able to put his pleading in the 2005 Proceedings in a proper form.
On 13 January 2009, Mr Clark filed a Further Amended Statement of Claim to which he added three new defendants, new causes of action and removed the original fourth and fifth defendants. On 14 January 2009, Mr Clark informed the CSO of those amendments. On 18 January 2009, Mr Clark wrote to the CSO saying that he proposed to seek to combine the District Court criminal proceedings against him with the 2005 Proceedings. The CSO responded on 3 February 2009, saying that there was no court rule to enable the two matters to be consolidated. On 3 February 2009, the CSO requested further and better particulars of the Further Amended Statement of Claim.
On 6 February 2009, at a directions hearing before Harrison J, the State opposed the addition of the new defendants on the basis that it would further delay the 2005 Proceedings. The State submitted that Mr Clark had been ordered to amend the Statement of Claim that was on foot and did not have leave to add other defendants and other causes of action. Harrison J ordered Mr Clark to furnish a response to the State's request for particulars no later than 20 February 2009. The matter was listed for directions on 23 February 2009. On 20 February 2009, Mr Clark wrote to the CSO providing a response to the request for further and better particulars.
At a status conference on 23 February 2009, counsel for the State submitted that Mr Clark's response to the request for further and better particulars was defective. Mr Clark, who appeared in person, argued that providing all particulars would jeopardise his criminal proceedings and insisted that the criminal matter should be dealt with before the 2005 Proceedings continued. The Registrar ordered Mr Clark to provide a proper response to the request for particulars by 16 March 2009 and to serve an evidentiary statement by the same date. The Registrar directed that, if Mr Clark believed he could not serve the material because of the criminal proceedings, he should file and serve a Notice of Motion and affidavit in support. The proceedings were stood over to 23 March 2009.
On 16 March 2009, Mr Clark filed a Notice of Motion and affidavit seeking an order that the 2005 Proceedings be stayed pending the conclusion of the criminal proceedings against him. He also asked that his computer and back up discs be returned to him.
Mr Clark did not appear at the status conference on 23 March 2009 but consented to orders proposed by the State that his Notice of Motion filed on 16 March 2009 be fixed for hearing before Harrison J, that the defendants serve any evidence upon which they intend to rely at the hearing of the motion by 20 April 2009 and that the motion and affidavit be served on Timothy Robards and Terrence Robards by 31 March 2009.
On 1 April 2009, Mr Clark wrote to the CSO, saying that he had filed a Notice of Motion seeking to have the order made by the Registrar on 23 March 2009, concerning the filing of the evidentiary statement, set aside. He also pressed for materials sought under a Notice to Produce to enable him to prepare the evidentiary statement. The CSO replied on 6 April 2009 saying that the documents sought under the Notice to Produce lacked any legitimate forensic purpose.
On 9 April 2009, Mr Clark entered custody again. It appears that that was a consequence of his breaching his bail conditions.
On 4 June 2009, the CSO wrote to Mr Clark proposing that a status conference be held on 10 August 2009. Mr Clark responded on 17 July 2009, saying that he wished to seek leave on that day to amend his Further Amended Statement of Claim on the basis that he had been found not guilty in relation to five of the criminal charges against him.
On 10 August 2009, at a directions hearing before Harrison J, Mr Clark handed up a Notice of Motion and an unsworn affidavit seeking access to computers and documents. He also foreshadowed that he would seek to add a cause of action to the proposed Second Amended Statement of Claim adding a cause of action regarding the five counts on which he was not convicted. Harrison J ordered Mr Clark to provide the defendants with a copy of his Notice of Motion and his proposed amended pleading by 11 September 2009. He directed that the matter be listed before him on 14 September 2009.
On 23 August 2009, Mr Clark wrote to the CSO enclosing "interim part of second further amended statement of claim". He also purported to add the Commissioner of Corrective Services (the Commissioner) and Justice Health as defendants. On 9 September 2009, the CSO wrote to Mr Clark saying that the causes of action in the "interim part of second further amended statement of claim" concerning the Department of Corrective Services and Justice Health were completely unrelated to the 2005 Proceedings.
At a directions hearing on 14 September 2009, Mr Clark withdrew the "interim part of second further amended statement of claim". He also filed a Notice of Motion on that day seeking access to a laptop computer and protection of his legal files. Harrison J adjourned the Notice of Motion to a date to be fixed.
On 16 September 2009, Mr Clark wrote to the CSO enclosing an unfiled Summons naming the State, the Commissioner, and Justice Health as defendants and seeking an order that he be provided with his legal files, a laptop, a chair in his cell and an order that a new trial be ordered in relation to his recent convictions in May and June 2009.
On 26 November 2009, Harrison J ordered that Mr Clark's Notice of Motion of 14 September 2009 be dismissed and that Mr Clark file and serve a Further Amended Statement of Claim by 20 January 2010. His Honour also directed Mr Clark to answer the State's request for further and better particulars of 3 February 2009 by the same date. Mr Clark was ordered to file and serve his evidentiary statement by 30 January 2010 and the State was ordered to file and serve, by 25 February 2010, any evidence in support of its motion for dismissal of the 2005 Proceedings filed on 12 August 2008. Mr Clark was ordered to file and serve any evidence in reply by 20 March 2010. The State's Notice of Motion to strike out or dismiss was listed for hearing on 30 April 2010.
On 30 March 2010, the CSO wrote to Mr Clark pointing out that he had failed to comply with the orders of 26 November 2009. The CSO confirmed that the State's evidence had been served on Mr Clark.
The 2005 Proceedings came before Harrison J on the application by the State to dismiss Mr Clark's claims or to strike out the Statement of Claim, in the form in which it then stood. The pleading in question was a Second Further Amended Statement of Claim filed in Court on 30 April 2010. Harrison J described the pleading as containing very serious allegations of misconduct by certain 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. The Statement of Claim also contained allegations of negligence on the part of Justice Health, the Department of the Attorney General, the Commissioner and the Department of Corrective Services.
Harrison J observed that, while the State's Notice of Motion to strike out Mr Clark's Statement of Claim had been filed on 12 August 2008, that motion was not dealt with before the Statement of Claim 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, which was filed in Court on 30 April 2010. In anticipation of Mr Clark being permitted to rely on that pleading, the State prepared an Amended Notice of Motion, which was also filed in court on 30 April 2010. The State's application was treated by the parties as an application for orders that the Second Further Amended Statement of Claim be dismissed generally pursuant to UCPR, r 12.7 for want of due despatch, dismissed pursuant to UCPR, r 13.4(1)(a), (b) or (c) or struck out pursuant to UCPR, r 14.28(1)(a), (b) or (c). UCPR, r 13.4 is concerned with the frivolous and vexatious proceedings. UCPR, r 14.28 is concerned with the circumstances in which a court may strike out pleadings as disclosing no reasonable cause of action, having a tendency to cause prejudice, delay or embarrassment or otherwise being an abuse of the process of the court.
Harrison J ordered that the claim in defamation be dismissed and that claim is not presently relevant. His Honour also concluded that the other claims were not properly pleaded or particularised, but considered that Mr Clark should have a further opportunity to plead them properly. However, his Honour was not satisfied that it could be said that Mr Clark had failed to prosecute the 2005 Proceedings with due despatch within the meaning of UCPR, r 12.7. [8]
Harrison J observed that Timothy Robards and Terrence Robards appeared to have taken the view that they should no longer respond to Mr Clark's allegations, or possibly could not afford to do so. His Honour said that they had never appeared at any time since the proceedings first came before his Honour for directions and case management.
At the time of the hearing before Harrison J, the appeal from the decision of Johnson J had not been heard by the Court of Appeal. On 2 July 2010, having been informed of Mr Clark's appeal, Harrison J stayed the 2005 Proceedings until further orders and directed that Mr Clark take no further steps in the 2005 Proceedings unless and until he served upon the State a further version of the Statement of Claim upon which he relied, which complies with the rules of the Court and which pleads no factual matter that was a fact or matter pleaded by him or relied on by him in the 2002 Proceedings before Johnson J. Harrison J granted liberty to the State to reply in relation to any Statement of Claim so served. The only document that has been served on the State is the consolidated Statement of Claim to which I have referred above. There has been no other compliance with the terms of the orders made by Harrison J.
On 2 December 2009, Mr Clark filed an appeal to the Court of Criminal Appeal from his convictions in the District Court. The grounds of appeal included that his counsel was incompetent and that the verdicts of the jury were unsatisfactory or unreasonable. The appeal was heard on 24 October 2011 when the Court of Criminal Appeal reserved its decision. On 15 December 2011 the Court of Criminal Appeal dismissed the appeal from the convictions on all counts.
On 6 February 2012, Mr Clark wrote to the Registrar, with a copy to the CSO, requesting that a Third Further Amended Statement of Claim be filed. He asked that the matter be listed in September or October 2012. On the following day, he wrote again to the Registrar asking that his letter of the previous day be disregarded.
Mr Clark's Application for Leave to Appeal from the orders made by Johnson J in respect of the 2002 Proceedings was heard by this Court on 27 April 2012. On 22 May 2012, this Court granted leave to appeal and allowed the appeal in part. The order made by Johnson J was set aside. The State's Notice of Motion was allowed to the extent that certain paragraphs of the Further Amended Statement of Claim filed on 23 April 2004 were struck out. Mr Clark was directed to file, within three months, a Second Further Amended Statement of Claim removing any reference to the persons or causes of action previously pleaded in the paragraphs struck out. Each party was to pay his or its own costs of the appeal. [9]
At a directions hearing before a Registrar on 10 October 2012, Mr Clark provided a copy of a Notice of Motion that had not been filed. The proceedings were stood over to 24 October 2012. On that day, a Registrar ordered Mr Clark to file, by 6 November 2012, any Notice of Motion seeking to consolidate proceedings. The application was to attach the proposed consolidated Statement of Claim. All motions were to be made returnable on 16 November 2012. The Registrar directed that the 2002 Proceedings and the 2005 Proceedings were to travel together.
On 31 October 2012, Mr Clark wrote to the CSO attaching a copy of a Notice of Motion and Statement in Support to be relied upon at the proposed hearing on 16 November 2012. The Notice of Motion was to be filed in both the 2002 Proceedings and the 2005 Proceedings on 6 November 2012. On 8 November 2012, Mr Clark filed an Amended Statement in Support of his Notice of Motion.
The hearing on 16 November 2012 was terminated because of difficulties with the audio-visual link and both the 2002 Proceedings and the 2005 Proceedings were stood over for directions on 10 December 2012. On that day, a Registrar made orders granting leave to Mr Clark to file the foreshadowed Notice of Motion in court together with his Statement in Support and his proposed Statement of Claim. Mr Clark was also granted leave to file a Further Amended Notice of Motion in respect of his claim to have access to his laptop computer. The State was directed to file any application in respect of the pleadings or the proceedings generally no later than 18 January 2013. All applications or Notices of Motion and affidavits in support were to be served on Mr Clark no later than 25 January 2013. The 2005 Proceedings were stood over for directions before the duty judge on 30 January 2013.
[4]
The Hearing before the Primary Judge
On 10 December 2012, Mr Clark filed a Notice of Motion seeking leave to amend his pleading in each of the 2002 Proceedings and the 2005 Proceedings by filing a single consolidated Statement of Claim. Mr Clark filed another motion on 21 May 2013 seeking, first, an order that he be granted leave "to add the two matters reinstated by the Court of Appeal" in the previous claim into one "Consolidated Statement of Claim" and that he be granted leave to simplify the claim by dividing it into two parts, namely, Part A and Part B. The proposed consolidated Statement of Claim named Timothy Robards, Terrence Robards and the State as defendants. Mr Clark also sought orders relating to the terms of his custody. He produced a Second Further Amended Statement of Claim, consisting of Part A and Part B, dated 5 April 2013. In addition, he filed a Statement in Support of his motion, which contained significant assertions of fact concerning the conditions of his custody.
On 18 January 2013, the State filed a Notice of Motion in each of the 2002 Proceedings and the 2005 Proceedings seeking the following orders:
Dismissal for want of due despatch under UCPR, r 12.7;
Dismissal as vexatious and an abuse of the court's processes under UCPR, r 13.4; or
Striking out as an abuse of process of the Court and as tending to cause prejudice and embarrassment or delay in the proceedings under UCPR, r 14.28.
The State filed a Notice of Motion in the 2002 Proceedings seeking the same relief.
In support of its motion in the 2005 Proceedings, the State filed the following:
Affidavit of Stephanie Koch of 18 January 2013, which annexed a very detailed procedural chronology;
Affidavit of Stephanie Koch of 27 February 2013, detailing the number and identity of potential police officer witnesses who have been medically retired or discharged from the NSW Police Force, which evidence was relevant to the question of prejudice; and
Affidavit of Michael Hovey of 28 February 2013 with respect to Mr Clark's application in relation to his conditions of custody, which was to be relied upon for questions as to the nature of the custody of Mr Clark and might bear upon any consideration of the reasons for delay on his part in the 2005 Proceedings.
Both Mr Clark's motion and the State's motion were heard by the primary judge on 21 May 2013 and 22 May 2013. At the hearing before the primary judge on those days, the State relied on a detailed, if somewhat confused chronology, of the progress of the 2005 Proceedings. However, the State's submissions in support of its motion were somewhat superficial and did not address the detailed chronology as to the progress of the 2005 Proceedings. The primary judge did not address that chronology at all. Rather, his Honour devoted considerable attention to the content of the allegations made in the 2002 Proceedings and the 2005 Proceedings. His Honour observed that Mr Clark's application to amend the 2005 Proceedings was made some two and a half years after Harrison J granted him leave to re-plead. His Honour accepted that that delay may be partly explained by Mr Clark's conduct of the appeal against the decision of Johnson J in the 2002 Proceedings. Nevertheless, his Honour considered that the delay must be viewed against the background of the substantial delay attending the proceedings from their outset, including the period when Harrison J was dealing with them.
In the State's outline of submissions in support of its motion, attention was drawn to the fact that the 2005 Proceedings were subject to a stay with liberty to re-plead. It was said that, in the light of the inaction of Mr Clark in exercising that liberty to re-plead, the 2005 Proceedings should be dismissed and the Statement of Claim should be struck out. The State submitted that the history of the 2005 Proceedings, even at June 2010, was already convoluted and lengthy and that it was clear that Mr Clark had previously been made aware of his obligations under the Felons (Civil Proceedings) Act 1981 (NSW) and that Mr Clark had in the past attempted to rely on issues relating to his conditions of custody to explain his defaults and inability to prepare his claims.
The State's submission asserted that it was clear from the decision of Harrison J that Mr Clark had been given numerous attempts to plead his claim properly. The submission referred to the observation made by Harrison J that there was a question as to whether the position of Mr Clark with respect to getting his pleadings in order was a question of willingness or ability to do so, as opposed to one whether he had time to do so.
The State's submission referred further to the observation made by Harrison J as to whether Mr Clark's claim would ever be properly pleaded. The submission also referred to his Honour's comment that he was not confident that Mr Clark would ever produce a properly pleaded Statement of Claim, although his Honour was not then prepared to say that it would never be produced. The submission pointed out that, while Harrison J had observed that the then current pleading could not withstand the State's assault upon it, Mr Clark should be given another chance to correct the defects, although he must understand and appreciate that there was a prospect that the time may arrive when no further opportunity to do so would be extended to him. His Honour was not prepared to say that such a time had yet arrived and that it was obviously inappropriate for his Honour to express any view about whether it ever would.
[5]
The Appeal
By Summons filed on 8 August 2014, Mr Clark sought leave to appeal from the orders made by the primary judge in the 2005 Proceedings. No application was made in respect of the orders made in the 2002 Proceedings, although Mr Clark is asking that the time for complying with this Court's direction of 22 May 2012 be further extended.
After a hearing on 5 May 2015, this Court ordered, on 22 May 2015, that leave be granted to Mr Clark to appeal against so much of the judgment of the primary judge as dismissed paragraphs of the proposed Amended Statement of Claim that dealt with causes of action to be found in the pleadings in the 2005 Proceedings, as considered by Harrison J, other than the conspiracy charge contained in that pleading. The Court otherwise ordered that the Summons seeking leave to appeal be dismissed. On 8 July 2015, pursuant to the Felons (Civil Proceedings) Act 1981 (NSW), this Court, on the papers, granted leave to Mr Clark to commence proceedings for leave to appeal and, to the extent that leave has been granted, to commence an appeal in this Court, from the orders of the primary judge of 17 June 2014.
Mr Michael Heath has been granted leave to make submissions on behalf of Mr Clark as amicus curiae. Mr Heath provided the Court with a form of Notice of Appeal as well as written submissions. The grounds in the Notice of Appeal are as follows:
1. The primary judge erred in dismissing the 2005 Proceedings as against Timothy Robards and Terrence Robards without giving any or proper reasons for doing so in circumstances where those parties had neither filed a defence to the proceedings nor made any application to dismiss the proceedings and were not the moving party on the application.
2. The primary judge erred in dismissing the 2005 Proceedings as against Timothy Robards and Terrence Robards by failing to take into consideration the fact that those parties had neither filed a defence to the proceedings as against them nor made any application to dismiss the proceedings.
3. The primary judge erred in dismissing the 2005 Proceedings for want of due despatch by giving no, or insufficient, consideration to the delay associated with the 2002 Proceedings and the impact of that delay in the prosecution of the 2005 Proceedings.
4. The primary judge erred in dismissing paragraphs of the proposed amended Statement of Claim that deal with causes of action to be found in the 2005 Proceedings, other than the conspiracy charge.
While the draft Notices of Appeal filed by Mr Clark name the State as a Respondent, the Notices of Appeal prepared by Mr Heath name only Timothy Robards and Terrence Robards. The omission of the State appears to be an oversight, since it was made clear that Mr Clark seeks to have the dismissal as against Timothy Robards, Terrence Robards and the State set aside.
By the Notice of Appeal, Mr Clark seeks orders that the orders made by the primary judge on 17 June 2014 be set aside, that the time for compliance with the directions made by the Court of Appeal on 22 May 2012 be extended to such date as the Court sees fit, and that the 2002 Proceedings and the 2005 Proceedings be remitted to the Common Law Division for orders and directions. Leave to appeal from the orders made by Hidden J in respect of the 2002 Proceedings was not granted by this Court in Clark v Robards [2015] NSWCA 140. In order to deal with the issues raised in the appeal, it is necessary to consider the progress of the 2005 Proceedings in some detail.
As indicated above [10] , the primary judge acknowledged the problems faced by Mr Clark being in custody, but his Honour ultimately appears to have discounted the difficulties experienced by Mr Clark and concluded that, despite those difficulties, the delay in the progress of the 2005 Proceedings was unacceptable. His Honour was therefore content to terminate the 2005 Proceedings on the basis of want of due despatch, without addressing the questions of the adequacy of the Statement of Claim.
There was no application for leave to appeal from the decision of Harrison J declining to dismiss the 2005 Proceedings for want of due despatch. On the other hand, as the primary judge observed, the proposed consolidated pleading reproduced, in large part, the pleading in the 2005 Proceedings that was before Harrison J and failed to address the problems identified by Harrison J. His Honour considered that it remained an "embarrassing document" with the "potential to cause prejudice and delay", as Harrison J had concluded. To the extent that there was delay up to the time of Harrison J's judgments, it is appropriate to have regard to the cumulative effect of that delay in conjunction with the delays from the judgments of Harrison J until the time when Mr Clark sought to take up the leave to re-plead that was reserved by Harrison J.
Mr Clark contends, through Mr Heath as amicus curiae, that the primary judge failed to give adequate consideration to the delay associated with the 2002 Proceedings, and the impact of that delay on any delay in the prosecution of the 2005 Proceedings. He contends that, while both the 2002 Proceedings and the 2005 Proceedings were considered by his Honour, only the 2005 Proceedings were dismissed for want of despatch. He points to the fact that the 2002 Proceedings were older than the 2005 Proceedings and that the progress in the 2005 Proceedings was delayed by the appeal from the orders of Johnson J in the 2002 Proceedings, which was not finally determined until May 2012. He suggests that the result is anomalous.
First, the events complained of in the 2005 Proceedings were more recent than those complained of in the 2002 Proceedings. Secondly, the primary judge accepted that the appeal from the decision of Johnson J partly explained the delay in the 2005 Proceedings. However, the 2002 Proceedings and the 2005 Proceedings are distinct and separate. No explanation has been advanced as to why the prosecution of the 2002 Proceedings should have an effect on the prosecution of the 2005 Proceedings and it is quite unclear how the delay in dealing with the appeal in the 2002 Proceedings impacted on the preparation of a pleading in the 2005 Proceedings.
Mr Heath, as amicus curiae, contends that the global approach adopted by the primary judge in dealing with the application to dismiss the 2005 Proceedings was inappropriate in the circumstances of the case. He relies on the fact that the State did not point to any specific prejudice in preparing the State's case that might arise from the delay. He contends that, having regard to Mr Clark's difficulties by reason of his incarceration, and his lack of representation, dismissal of the 2005 Proceedings on the basis of delay, when the 2002 Proceedings remain on foot, is unjustified. He contends that much of the delay had been caused by the refusal of the State and the other defendants to plead defences that are clearly open to them that, in some cases, might lead to summary dismissal of particular claims. In particular, he contends that it is quite unclear as to why Mr Clark is responsible for the delay with respect to the claims against Timothy Robards and Terrence Robards, who have apparently neither filed defences nor sought to have the claims dismissed, at least until recently.
Even if the delay in the prosecution of the 2005 Proceedings up to the decision of Harrison J in July 2010 is not consolidated with the delay thereafter, the delay from July 2010 up to the time when Mr Clark sought to file the consolidated Statement of Claim has not been satisfactorily explained. Certainly, Mr Clark has complained about the conditions of his custody and the difficulties that he claims that to have caused to the preparation of the 2005 Proceedings. Nevertheless, Mr Clark has apparently been able to produce detailed and lengthy documents in relation to the interlocutory applications that he made. He was able to produce the consolidated Statement of Claim and the detailed Statement in Support of his motion to file the consolidated Statement of Claim. That Statement runs to some 22 pages containing 191 paragraphs. In addition, there are some 18 annexures attached to the Statement in support of the motion.
No explanation is proffered as to why the energy and effort devoted to that document could not have been directed to producing a pleading in the 2005 Proceedings that satisfied the terms of the leave granted by Harrison J. The evidence indicates that the State wrote to Mr Clark on several occasions pointing out the asserted deficiencies in his then pleading in the 2005 Proceedings. No explanation has been proffered on behalf of Mr Clark as to why the complaints made by the State were not addressed by an attempt to produce a pleading that satisfied the requirements of the UCPR. The fact is that Mr Clark has simply not made any effort to produce a Statement of Claim that complies with the UCPR and that does not plead a fact or matter as a fact or matter pleaded by him or relied upon in the 2002 Proceedings.
[6]
Dismissal as against the State
In all of the circumstances, I consider that the State has demonstrated that the 2005 Proceedings should be dismissed as against the State for want of due despatch.
[7]
Dismissal as against Timothy Robards and Terrence Robards
As I have said, Timothy Robards and Terrence Robards were the first and second defendants in the 2005 Proceedings. While they participated in the proceedings at an early stage, they have not participated for some time. It is not entirely clear that they were served with the Notices of Motion that were heard by the primary judge on 21 May 2013 and 22 May 2013. Nevertheless, as indicated above, the primary judge ordered that the 2005 Proceedings be dismissed as against not only the State but also as against Timothy Robards and Terrence Robards.
More importantly, there was no satisfactory evidence that Timothy Robards and Terrence Robards were served with Mr Clark's Application for Leave Appeal. They did not appear at the hearing of the Application. In those circumstances, at the completion of oral argument, the Court directed that the Registrar write to Timothy Robards and Terrence Robards, informing them of the proceedings and providing them with copies of the following:
● Reasons for judgment of the primary judge of 17 June 2014;
● Mr Clark's Summons seeking leave to appeal;
● Mr Clark's Summary of Argument in support of the application for leave;
● Draft Notice of Appeal;
● Reasons of this Court of 5 May 2015 for granting leave to appeal;
● Written submissions of the State filed on 12 February 2016; and
● Written submissions of Mr Heath as amicus curiae.
In response to the Registrar's letter, an appearance was filed by the solicitors acting on behalf of Timothy Robards and Terrence Robards and the Court has now received written submissions on their behalf.
Timothy Robards and Terrence Robards opposed any and all applications brought by Mr Clark that involved them as parties. They support each of the decisions made by various orders that have the effect of finalising, staying, dismissing or striking out statements of claim and notices of appeal filed by Mr Clark. Their principal contention is that, given the dormancy of the 2005 Proceedings since 2 July 2010, in that Mr Clark has taken no action to file an amended pleading, this Court should not interfere with the orders made by Harrison J.
Timothy and Terrence Robards point out that Mr Clark has not taken up the conditional liberty to file an amended pleading in the 2005 Proceedings, which therefore remain poorly pleaded and not particularised. They contend that the allegations made against them are difficult to understand, are unclear and are imprecise. They say that, having regard to the time that has passed since the observation was made that Mr Clark must understand and appreciate that there is a prospect that a time may arrive when no further opportunity to correct the defects in his pleadings will be extended to him, that time has now arrived.
In addition, Timothy and Terrence Robards adopt the conclusions outlined in the submissions filed on behalf of the State. Having regard to the unlikelihood of any costs order being successfully enforced, they say that they have played a limited role in the proceedings and have not filed a defence. They say that Mr Clark has never made a demand for a defence to be filed and that the allegations against them were poorly articulated and convoluted such that the preparation of a sensible and appropriate defence could not be achieved. Their failure to file a defence, therefore, they say, should not be held against them.
Timothy and Terrence Robards also assert in their submissions concerning alleged assault of Timothy Robards by Mr Clark, that "matters" between them and Mr Clark have been ongoing for 21 years. That prompted further detailed submissions on the part of Mr Clark, purporting to set out in some detail the history of litigation involving himself and Timothy Robards. None of the matters raised by the Robards or Mr Clark appear to have any relevance to the question presently before this Court.
No application was made on behalf of Timothy and Terrence Robards for summary dismissal of the 2005 proceedings. Nevertheless, all of the considerations relevant to the claims against the State are equally applicable to the claims as against Timothy and Terrence Robards. In all of the circumstances, I consider that it was appropriate for the primary judge to order dismissal as against them.
[8]
Conclusion
The appeal should be dismissed. Mr Clark should be ordered to pay the costs of the appeal of the State, as well as the costs of Timothy Robards and Terrence Robards.
[9]
Endnotes
Clark v Robards [2014] NSWSC 742.
Clark v Robards [2015] NSWCA 140.
See Clark v Robards [2015] NSWCA 140 at [21]-[25].
See Clark v State of New South Wales [2012] NSWCA 139.
See Clark v State of New South Wales [2014] NSWSC 742.
See Clark v State of New South Wales [2014] NSWSC 801.
See Clark v State of New South Wales [2006] NSWSC 673.
See Clark v Robards [2010] NSWSC 522.
See Clark v State of New South Wales [2012] NSWCA 139.
See [87]-[88].
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: 09 August 2016
The State's submission asserted that Mr Clark had not re-pleaded his claim in the 2002 Proceedings in the way contemplated by the orders of the Court of Appeal of 22 May 2012. Further, it was pointed out, Mr Clark had not appropriately re-pleaded his Statement of Claim following the orders made by Harrison J in the 2005 Proceedings of 2 July 2010. It was asserted that the circumstances of Mr Clark were not so harsh or remarkable that he had been unable to attend to his legal affairs properly. On the contrary, it was asserted he had been a highly productive litigator throughout the entire relevant period.
The State's submission asserted that the overall procedural history of both the 2002 Proceedings and the 2005 Proceedings would not give the Court any confidence that Mr Clark will ever properly attend to his pleadings. It was said that, in circumstances where substantial indulgences had already been granted to Mr Clark, notwithstanding his own gross misconduct, the time had been reached when the 2005 Proceedings should be ended.
Counsel appearing for the State on the hearing of motions acknowledged to the primary judge that he could point to no specific prejudice arising from the delay in preparing the State's case. However, he pointed out that the claims in the 2002 Proceedings were based on events said to have occurred no later than 2000. For the most part, the claims against the police in the 2005 Proceedings related to events in 1999 or between 2005 and 2007 and one claim based on events in 2008.
The primary judge reserved his decision on 22 May 2013. However, in the course of the hearing, his Honour indicated that the claims for relief in relation to the terms of Mr Clark's custody should more appropriately be the subject of separate proceedings. Mr Clark thereafter commenced separate proceedings (348662 of 2013) in the Common Law Division seeking such relief. Mr Clark filed a Second Further Amended Summons in those proceedings on 27 January 2014. Those proceedings were listed for hearing before the primary judge on 12 May 2014. Before embarking on the hearing of those fresh proceedings on 12 May 2014, his Honour published an interim judgment in the 2005 Proceedings. His Honour indicated that he had decided that the 2005 Proceedings should be dismissed but that he had a concern about the 2002 Proceedings on which he invited further submissions if the parties wished.
On 30 May 2014, the primary judge heard further submissions in relation to the 2002 Proceedings. On that day, his Honour ordered, in the 2002 Proceedings, that the time for compliance with the direction made by the Court of Appeal on 22 May 2012 be extended to 30 June 2014. His Honour ordered that the 2005 Proceedings be dismissed for want of due despatch, pursuant to UCPR, r 12.7. He also ordered that Mr Clark's motion of 10 December 2012 in the 2005 Proceedings be dismissed, and that Mr Clark's fresh proceedings in respect of his conditions of custody be dismissed. However, those orders were apparently provisional. Nonetheless, on 17 June 2014, his Honour published his final reasons in relation to the motions of Mr Clark and the State in the 2002 Proceedings and the 2005 Proceedings and made formal orders.
The primary judge concluded that the form of the proposed pleading as a consolidated Statement of Claim in two parts was inappropriate and that the proposed pleading could not be allowed to stand since it achieved none of the purposes set out in s 64(2) of the Civil Procedure Act 2005 (NSW), namely, the determination of the real questions raised by the litigation, the correction of any defect or order in the proceedings and the avoidance of multiplicity of proceedings. The real question, his Honour said, was whether Mr Clark should be allowed a further opportunity to re-plead his claims.
While the primary judge considered that the proposed pleading as a consolidated Statement of Claim, embracing the claims in both the 2002 Proceedings and the 2005 Proceedings, was inappropriate, his Honour treated Mr Clark's application as an attempt to amend the pleadings in each of the 2002 Proceedings and the 2005 Proceedings. His Honour identified the allegations made in the proposed consolidated pleading that he treated as the proposed amendments to the pleading in the 2002 Proceedings. The remaining allegations in the consolidated pleading were treated as the amendment to the pleading in the 2005 Proceedings. His Honour then dealt separately with the 2005 Proceedings and the 2002 Proceedings.
The primary judge observed that the 2005 Proceedings had undoubtedly been very protracted and had made little or no progress since their inception. His Honour observed that Mr Clark's current application to amend the pleading in the 2005 Proceedings was made roughly two and a half years after Harrison J granted him leave to re-plead. His Honour said that the proposed amended pleading in large part reproduced the previous pleading in the 2005 Proceedings and failed to address the problems identified by Harrison J. His Honour considered that it remained an embarrassing document with the potential to cause prejudice and delay.
The primary judge said that he appreciated the difficulty Mr Clark faced as an unrepresented litigant drafting pleadings and that he was also conscious of the problems he faced being in custody. His Honour referred specifically to evidence concerning the difficulties under which Mr Clark claimed to labour having regard to his conditions in custody.
The primary judge found that Mr Clark had access to computer facilities, albeit in circumstances considerably more constrained than a person at liberty. He found that the same was true of Mr Clark's access to the documents and other records in his possession in relation to the 2005 Proceedings, and that Mr Clark's access to that material and to his facilities was affected by the daily routine of prison life as he experienced it, as well as his movements from time to time to different institutions within the system. His Honour also took into account an assault endured by Mr Clark in 2007 and his treatment for that assault, as well as the fact that he has been involved in the preparation of other proceedings, both criminal and civil. His Honour concluded, however, that despite those difficulties, the delay in the progress of the 2005 Proceedings was unacceptable.
The primary judge then referred to the State's contention that the 2005 Proceedings were vexatious or an abuse of process or that the pleading was an abuse as tending to cause prejudice, embarrassment or delay. His Honour also referred to the fact that new claims not previously pleaded were not authorised by the terms of the relief granted by Harrison J. However, his Honour was content to terminate the 2005 Proceedings on the basis of want of due despatch, without addressing the deficiencies in the pleading asserted by the State. His Honour considered that the prediction by Harrison J that Mr Clark could never have produced a properly pleaded Statement of Claim had proven to be true. His Honour concluded that the time had arrived when no further opportunity to produce a properly pleaded Statement of Claim should be extended to Mr Clark and, balancing the legitimate interests of the parties, justice required that the 2005 Proceedings be dismissed. Having concluded that the 2005 Proceedings should be terminated for want of due despatch, it followed, his Honour said, that Mr Clark's application to amend the 2005 Proceedings must also be dismissed.
The primary judge then said that the dismissal would include dismissal of the claims against Timothy Robards and Terrence Robards. While they had previously moved for summary dismissal, there was apparently no current application for dismissal by them and no application for dismissal for want of due despatch. His Honour gave no additional reasons for his conclusion, but observed that neither of Timothy Robards and Terrence Robards had taken any part in the 2005 Proceedings since an early stage.
However, the primary judge considered the fate of the 2002 Proceedings was not so easily resolved. While they are older than the 2005 Proceedings, and much of the delay in the progress of the 2002 Proceedings stemmed from the judgment of Johnson J and the appeal against it, the fact remained that the appeal was not finally determined until May 2012. The time set for the filing of an appropriately amended Statement of Claim was extended to 24 October 2012. Mr Clark's motion to amend was filed less than two months after that date and his Honour considered that, in all of the circumstances, the extent to which it was out of time, was of itself, of little significance.
The primary judge considered that the proposed amended pleading of the claims in the 2002 Proceedings could not be allowed to stand but that the original pleading of them, when Mr Clark was represented, appeared to be appropriate. His Honour considered that it may be that a reversion to that original pleading, amended in accordance with the Court's directions, would be acceptable. His Honour observed that the paragraphs of the proposed amended pleading in the 2002 Proceedings were not in accordance with the limited leave granted by the Court of Appeal in 2012 and did not achieve the purpose of that leave. His Honour considered that that was a matter that might readily be remedied by focusing on the earlier pleading of the claims in the 2002 Proceedings and the terms of this Court's leave. His Honour considered that that might be achieved expeditiously and without prejudice. That question was not squarely addressed and his Honour considered that it was appropriate for the parties to be heard further on the question.
The primary judge then referred to the hearing on 30 May 2014, when the State contended that Mr Clark had exhausted his opportunity to re-plead. Mr Clark had assured his Honour that he could, and would, observe the limits placed by the Court of Appeal on its grant of leave on 22 May 2012. Not without some reluctance, his Honour was prepared to allow Mr Clark one last opportunity, which should be strictly limited. For that reason, his Honour adopted a self-executing order.
Accordingly, in the 2002 Proceedings, his Honour ordered that the time for compliance with the direction made by the Court of Appeal on 22 May 2012 be extended up to 30 June 2014. His Honour directed that, if Mr Clark failed or declined to comply with that direction, the 2002 Proceedings were to be dismissed for want of due despatch under UCPR, r 12.7. No amended Statement of Claim has since been filed in the 2002 Proceedings and, accordingly, they must be treated as dismissed.
The primary judge also dismissed Mr Clark's motion to amend the pleadings in both the 2002 Proceedings and the 2005 Proceedings by filing the proposed consolidated Statement of Claim. His Honour also ordered that Mr Clark's motion in respect of conditions of custody be dismissed. Finally, his Honour ordered that the 2005 Proceedings be dismissed and that Mr Clark pay the State's costs of the 2005 Proceedings.