Clark v State of New South Wales - [2016] NSWSC 808 - NSWSC 2015 case summary — Zoe

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Clark v State of New South Wales

[2016] NSWSC 808

Supreme Court of NSW|2015-12-02|Before: Schmidt J

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Source facts

Court

Supreme Court of NSW

Decision date

2015-12-02

Before

Schmidt J

Source

Original judgment source is linked above.

Judgment (9 paragraphs)

[1]

Background to this application

Despite his incarceration Mr Clark is a frequent litigant. Some of his litigious history is relevant to this application.
After a judge alone trial before Garling DCJ, at which Mr Clark appeared unrepresented, he was convicted of three offences. Mr Clark was later represented by Mr Ramage QC, instructed by Voros and Associates Lawyers, on his partially successful appeal (see Clark v R [2008] NSWCCA 122; (2008) 185 A Crim R 1). It was Mr Roff who gave the instructions. On appeal Mr Clark's offences were described at [2], to have been: "1. that on 4 December 2004 at Taree he attempted to procure a certain child over the age of 14 years to be used for pornographic purposes; 2. that at the same time and place he incited the same complainant, a person then under the age of 16 years, to commit an act of indecency towards him; and 3. that on 27 January 2005 at Taree he had child pornography in his possession."
The conviction on the third count was quashed on appeal and a verdict of acquittal entered. The appeal on sentence was allowed and Mr Clark was resentenced to a non-parole period of one year and six months, commencing on 12 December 2006 and expiring on 11 June 2008 and to a balance of term of one year and six months expiring on 11 December 2009. The Court also directed that he be released on parole on 11 June 2008.
Mr Clark was also, however, charged with 29 other counts, some in the alternative: 19 counts of sexual assault or acts of indecency involving six different complainants; 3 counts of possessing child pornography or using a child for pornographic purposes; and 7 counts of perverting the course of justice.
Mr Clark was represented at this 27 day trial by Mr Webb of counsel, instructed by Mr Roff and others, all of whom Mr Clark complained in his written submissions in these proceedings were totally unfamiliar with exculpatory material and his defences. A verdict of not guilty was entered in relation to one count and he was convicted of 23 counts. He was sentenced to a non-parole period of 10 years, 9 months and a balance of term of 3 years, 8 months for those offences.

[3]

Requirements of the Rules

It is apparent that MFI 4, MFI 5 and MFI 6 do not comply with relevant requirements of the Uniform Civil Procedure Rules 2005 (NSW).
The Rules require, for example, that a statement of claim be brief (r 14.8); that it contain only a summary of the material facts on which Mr Clark relies (r 14.7); that the effect of documents or spoken words referred to must, so far as material, be stated (r 14.9); that any matter that, if not pleaded specifically, may take the defendant by surprise be pleaded (r 14.14); that such particulars of any claims necessary to enable the defendants to identify the case that the pleading requires them to meet be provided (r 15.1); that particulars of any alleged fraud, misrepresentation, breach of trust, wilful default or undue influence must be given (r 15.3); and that particulars of the facts on which any pleaded condition of mind relies must be given (r 15.4).
In the case of alleged negligence, Rule 15.5 requires that what must be pleaded is the facts and circumstances on which the party pleading relies as constituting the alleged negligent act or omission, and where more than one negligent act or omission is pleaded, so far as practicable, the facts and circumstances relied on in respect of each alleged negligent act or omission must be stated separately.
As to aggravated and exemplary damages claims, the facts and circumstances which are relied on to establish the claims advanced must be pleaded separately (r 15.7 and r 15.8).
These requirements are not met in Mr Clark's proposed pleadings.
It follows that were it to be concluded that Mr Clark has established that what he seeks leave to do by MFI 4, MFI 5 or MFI 6, is to pursue claims which do not involve an abuse of process and for which there is a prima facie ground, the appropriate order would be to give him leave to commence the proceedings. He could not, however, be given leave to file his proposed statements of claim, because they do not satisfy the requirements of the Rules, or indeed other relevant pleading principles. Those pleadings would need to be recast.
The difficulty can be simply explained by reference to Mr Clark's pleading as to the tort of malicious prosecution and damages. The elements of the tort of malicious prosecution were explained in A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 at [1] to be: "(1) That proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; (2) That the proceedings terminated in favour of the plaintiff; (3) That the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) That the defendant acted without reasonable and probable cause."
These elements and the facts which Mr Clark claims establish them are not revealed, as they must be, by his proposed pleadings. The loss or damage he claims to have suffered is also not identified. Nor is how such damage was said to be caused revealed.
While the State may be vicariously responsible for the tort of a prosecutor in a public prosecution, the person who is alleged to have committed the tort, must be identified. As discussed in A v State of New South Wales at [34] "[t]he identification of the appropriate defendant in a case of malicious prosecution is not always straightforward. To incur liability, the defendant must play an active role in the conduct of the proceedings, as by 'instigating' or setting them in motion".
Given the requirements of s 56 of the Civil Procedure Act 2005 (NSW), which imposes obligations on the Court and parties to proceedings, to have regard to the overriding purpose there specified, the just, quick and cheap resolution of the real issues in the proceedings, it follows that if Mr Clark were given leave to commence the proceedings he wishes to pursue, he would have to recast his proposed pleadings, in order to comply with the requirements of the Rules, before he could exercise any leave he was granted under s 4 of the Felons Act.

[5]

MFI 6

It is convenient to begin with the claims sought to be pursued against Voros Lawyers Pty Limited, Mr Voros, Mr Roff and Mr Webb of counsel.
The claims against Mr Voros are sought to be pursued on the basis of his vicarious liability for both Mr Roff and Mr Webb. That there is any legal basis for such a claim in relation to Mr Webb, counsel briefed to appear for Mr Clark in criminal proceedings, is not apparent. Mr Clark cannot be granted leave to pursue such a claim. On its face it is hopeless. Nor could he be given leave to pursue a claim against a non-existent company.
MFI 6 commences with complaints advanced about Voros Lawyers, Mr Voros and Mr Roff in relation to matters identified by way of seven "sequences". Firstly, in relation to the appeal, concerning the victim MGH. Mr Clark pleads that at a judge alone trial at which he was unrepresented and did not give evidence, he was convicted of three charges. He was granted legal aid to appeal and instructed Mr Voros, who he also instructed in relation to five outstanding charges in relation to other victims CB, DM and SB, after he received a further grant of legal aid. Mr Clark also pleads that other solicitors, Ms Duffy and Mr Roff, subsequently advised him and that Mr Ramage QC was retained to appear on the appeal.
Mr Clark seeks to pursue a claim that Voros Lawyers, Mr Voros and Mr Roff breached their duty of care to him in relation to the appeal proceedings, which resulted in the dismissal of his appeal.
These claims are sought to be advanced on the basis that Mr Clark instructed his solicitors with voluminous exculpatory materials, which would totally exonerate him. He instructed Mr Roff to put that material before the Court of Appeal. Mr Roff failed to bring his defences and the exculpatory material to the attention of Mr Ramage QC, with the result that the appeal failed. That, it is claimed, involved negligence, breach of contract and of the duty of care he was owed.
Secondly, Mr Clark seeks to pursue a claim as to negligence and breach of contract in relation to the second trial in May 2009 before Norrish DCJ, identified as "Sequence Two: The Latter Matters". Mr Clark claims that Mr Roff failed to have him medically examined; to marshal exculpatory material; and to interview identified witnesses.
Thirdly, under the heading "Sequence Three: The Further Latter Matters", Mr Clark seeks to pursue a claim in negligence and breach of contract in relation to charges concerning the complainants DB, TB and MH, also heard at the May trial.
Fourthly, further claims of negligence and breach of contract are sought to be advanced by way of complaint as to the conduct of the trial on the basis that all charges would be dealt with in the one trial; that the contract was breached when identified witnesses were not called; when a charge of perverting the course of justice by destruction of a tape was not pursued; and by his legal representatives failing to follow Mr Clark's instructions during the trial.
Fifthly, claims in deceit and conspiracy, involving Mr Roff and Mr Webb are sought to be advanced, Mr Clark claiming that they fabricated defences and conspired to intimidate and coach him in giving fabricated defences, which they knew were false.
Sixthly, torts of trespass to goods and chattels are sought to advance against Mr Roff and Mr Webb, who it is claimed refused to return to him exculpatory materials.
Seventhly, Mr Clark seeks to advance claims against Mr Roff, who he alleges conspired with Mr Webb to lie in their affidavits sworn in the appeal against his conviction of 23 offences.
Further claims are sought to be separately advanced against Mr Webb, some of which replicate those sought to be advanced against Mr Roff.
Firstly, it is sought to be claimed that prior to trial Mr Webb negligently failed to take identified steps, in preparation for the trial, in breach of his contract.
Secondly, it is sought to be alleged that Mr Webb failed in his duty to Mr Clark, by not representing him to the requisite standard of competence.
Thirdly, it is sought to be claimed that Mr Webb had prepared a defence contract which Mr Clark had signed prior to trial, which all defendants breached at trial. Particulars of breach are not given, but they are also claimed to involve negligence.
Fourthly, it is sought to be claimed that Mr Webb breached his duty by failing to represent Mr Clark ethically and to the requisite standard of competence, resulting in negligence, breach of contract and deceit.
Fifthly, torts of deceit and conspiracy are sought to be advanced against Mr Webb as the result of the claimed fabrication of defences, and it is claimed, by he and Mr Roff intimidating and coaching Mr Clark into giving fabricated defences.
Sixthly, torts of trespass to goods and chattels sought to be advanced against Mr Roff and Mr Webb, who it is claimed refused to return exculpatory materials.
Seventhly, Mr Clark seeks to advance claims against Mr Webb, who he alleges conspired with Mr Roff to lie in their affidavits sworn in the appeal against his conviction of 23 offences.
Mr Clark also seeks to advance aggravated damages for his hurt, injury and loss of freedom, and exemplary damages for the contumelious disregard of his rights of liberty and society's disapprobation of such conduct by barristers and solicitors and as a salutary deterrent for likeminded persons.
The leave sought, I am satisfied, that cannot be granted because Mr Clark has not established that any of the claims in MFI 6 do not involve an abuse of process, or that they have a prima facie ground, that is that they are not "hopeless" or "unarguable".
Having been convicted by Garling DCJ of three counts, Mr Clark instructed Mr Voros. Employed solicitors, initially Ms Duffy and then Mr Roff, acted for Mr Clark. Mr Ramage QC was briefed. Mr Clark claims that Mr Roff failed to bring his defences and the exculpatory material he had supplied to Mr Ramage's attention and that he did not ensure that they were put before the Court of Criminal Appeal. That, Mr Clark claims, involved a breach of the duty of care he was owed, as well as a breach of his contract, with the result that his appeal was dismissed, causing him to suffer loss and damage.
That Mr Clark enjoyed certain success on this appeal, his conviction appeal on one charge being overturned and his sentence being reduced, is inconsistent with the claim that Mr Roff failed properly to instruct Mr Ramage QC as to the arguments which Mr Clark wished to advance on appeal.
Mr Clark has not attempted to show that it is arguable that the exculpatory material on which the case he wishes to advance depends, was admissible on this appeal, or that it would have provided a basis on which his other grounds of appeal could have been established.
What that evidence was, is not entirely clear. That it was exculpatory is not apparent. For such material to be received on appeal, it must be shown to be "credible, cogent, relevant and plausible" (see Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 310). While that does not have to be established on this application, there must be some explanation advanced as to how that could have been shown, if the leave which Mr Clark now seeks is to be granted. That was not attempted to be dealt with on this application.
In the May 2016 affidavit Mr Clark again dealt with the proceedings before Garling DCJ at which he had appeared unrepresented and the evidence then led, as well as that led at his second trial, the appeals and the later proceedings which he has pursued. He there explained how he came to be legally represented on the appeal; he outlined in extensive detail his complaints as to how the proceedings had been conducted by his legal representatives; materials which he claimed would have exonerated him, had they been tendered; the inadequacies of detailed aspects of the preparation for the proceedings, including advice and correspondence he had received, instructions he had given, including in relation to certain tendency and coincidence evidence; work which had been performed or not performed, including obtaining a proper draft proof of evidence from him and why he had refused to sign various drafts which had been prepared; exculpatory evidence which was available; what transpired in the various proceedings; lies he alleges his legal representatives told in the proceedings in the Court of Criminal Appeal and materials which he claims proves such lies. There are extensive extracts from the cross-examination he pursued at the hearing in the Court of Criminal Appeal in the affidavit, as well as from evidence led at the trial and in written instructions he had given, which he contends were not followed, including for example, in relation to the cross-examination of particular witnesses at trial. He explained how instructions given as to numerous matters were not followed; how the "defence contract" he had entered had been variously breached and gives numerous examples of what he claims to have been flagrant negligence and incompetence on the part of his legal representatives. He also advances explanations as to why he had not been able to properly prepare for the hearing of the second conviction appeal and the difficulties he had faced in preparing for later hearings, because of his conditions of custody.
Ordinarily an appeal is decided on the evidence led at trial. There are only limited circumstances in which other evidence may be led on appeal, as discussed in PFC v R [2011] NSWCCA 275 at [147] - [151]. That is usually where the material constitutes "fresh evidence", that is, evidence which was not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, at the time of the trial, by the exercise of due diligence (see R v Gallagher [1986] HCA 26; (1986) 160 CLR 392 and R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63]). That the exculpatory materials on which Mr Clark's present application rests was fresh evidence and thus admissible on appeal, was not sought to be shown by Mr Clark. To the contrary, what he relied on suggests that it was not.
Any attempt to relitigate what Mr Clark put in issue in those appeal proceedings, I am also satisfied, would involve an abuse of process, being manifestly unfair to the proposed defendants and would otherwise bring the administration of justice into disrepute (see Walton v Gardiner [2013] HCA 77; (2013) 177 CLR 378 at [37] - [39]).
Further, it is relevant that, as discussed in R v Birks (1990) 19 NSWLR 677 at 683 and 685 "a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted". An unrepresented litigant may also be bound by decisions he or she made as to the conduct of the trial and the evidence then led. Nothing which Mr Clark advanced suggests a basis upon which it could be considered that he was not bound by the way in which he decided to conduct his trial, including in relation to the now claimed exculpatory material.
An exception can arise on error being established on appeal, where a miscarriage of justice has resulted. In Grant v R [2014] NSWCCA 67, for example, such leave was given where it was established that counsel had failed to give necessary advice and had failed to obtain necessary instructions. Where, however, deliberate tactical decisions have been made as to the evidence that should or should not be called at trial and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked better (see Ratten v R [1974] HCA 35; (1974) 131 CLR 510 at 517).
In MFI 6, Mr Clark seeks to plead that he elected not to give evidence "following advice from his Honour during the trial to 'keep one's powder dry if there were any outstanding charges'." Nothing led suggests a basis on which it could have been concluded that he was not bound by that decision.
It follows that Mr Clark has not established that this aspect of the case he seeks to advance is arguable and not hopeless.
There were further difficulties connected with what was clearly intended to be a collateral attack on the failure of Mr Clark's second conviction appeal, which support the conclusion that what he seeks to advance does involve an abuse of process and has no prima facie basis.
Mr Clark was convicted of 23 counts after the second trial. He unsuccessfully challenged that conviction (see PFC v R [2011] NSWCCA 275). On that appeal the Crown called evidence from Mr Webb and Mr Roff, who gave affidavit evidence and were both extensively cross-examined by Mr Clark, as to matters of the kind he seeks to pursue again in the proposed proceedings.
On the appeal Mr Clark filed over 950 pages of affidavits and submissions, pursuing grounds of appeal which, it was observed at [60], included grounds which relied on the conduct of his defence at trial by his counsel and solicitor. This material was supplemented by a complete set of the written instructions Mr Clark had given his legal representatives. The grounds which he advanced were discussed from [61], his claim being that he had lost a "significant possibility" of an acquittal because of: "1. The incompetence of trial counsel led to a miscarriage of justice in that counsel - a. failed to put the appellant's defence of being setup by one group of complainants to the court, b. failed to act on the appellant's written and verbal instructions before and during the trial including alibi evidence, c. failed to call upon crown witnesses for cross-examination, d. failed to call upon defence witnesses to give evidence. e. failed to defend the appellant with respect to the aspersion made by his Honour before the Jury that the appellant may be a MIND READER, f. failed to put exculpatory statements and/or documents before the court and to the various Crown Witnesses as outlined in the submissions, g. failed to properly and/or adequately examine the appellant in chief and/or in re-examination to establish his innocents [sic] with regard to the state of the evidence, h. failed in general to defend the appellant to a professional standard having regard to all matters raised in these submissions inter alia, no proof of evidence. 2. A miscarriage of justice was caused by the Crown - a. failing to call upon Crown Witnesses to give evidence, b. becoming emotionally involved in the trial, c. breached it's(sic) duty of disclosure in concealing exculpatory evidence from the court, d. misstating the true state of the evidence during the trial and in Her summing-up to the jury, e. caused unfair prejudice to the accused in cross-examination by casting aspersions against his character in that he had lied to the court when in fact the appellant had told the truth and the Crown had evidence to support this. 3. The learned trial Judge erred and/or misled the jury as to the true state of the evidence in his Honour's summing-up, this led to a miscarriage of justice. 4. The learned trial Judge cast an unjustifiable aspersion against the appellant which was highly prejudicial this led to a miscarriage of justice. 5. The appellant was mentally ill shortly before and during the trial which led to a miscarriage of justice. 6. The appellant was under DURESS that if he exposed that the complainants had set him up his family would be gravely endangered this led to a miscarriage of justice. 7. The prosecutions were malicious carried out by police who were and are defendants in the appellant's statement of claims for malicious prosecution this led to a miscarriage of justice. 8. That the verdicts of the jury on all counts which the appellant was found guilty by the jury were unsafe and/or unreasonable and/or unsatisfactory and/or inconsistent having regard to the whole evidence at the trial. And the learned trial Judge had reservations about the guilty verdicts of the Jury; see his Honour's remarks, Sentencing and Bail transcripts 4 days, December 2009. 9. Fresh and/or new evidence as outlined herein was never put before the court has led to a miscarriage of justice inter alia Counsel did not know the "Full Carrot Video" existed and has never seen the "Todd Ellis" Video. 10. That the appellant is innocent on all counts and justice has miscarried the appellant relies globally on the contents and/or all matters raised in this entire document for this Appeal."
The Court of Criminal Appeal dealt in great detail with the evidence of Mr Clark's instructions to Mr Roff and Mr Webb. The difficult relationship which had developed with Mr Clark, given advice which they had to give him, as to the course which Mr Clark wished to pursue at trial, particularly given his belief that he had been set up, is also dealt with in the judgment. As is his desire to have all matters heard together, so that he would be better able to establish the claimed conspiracy to bring false allegations against him.
The Court considered and rejected the various grounds of appeal which Mr Clark advanced, observing that when Mr Clark's specific instructions were followed, the result was often unsatisfactory and when counsel refused to do so, that there were sound forensic reasons for the decision made (see at [81]). The Court considered that "[m]any of the specific complaints now raised by the appellant involve a considerable element of hindsight and a failure to understand the double-edged nature of this evidence." (at [71]).
The Court also concluded, for example, that a decision not to press the tender of a particular video "was undoubtedly correct. Its benefit to the appellant's case was problematic at best, but its prejudicial effect would be inevitable and substantial. The tender of that video could only have damaged the appellant's case." (see at [90]).
It is apparent from Mr Clark's own submissions that the claims which he now seeks leave to advance in these proposed proceedings are directly contrary to conclusions which were reached by the Court of Criminal Appeal on the conviction appeal, which failed.
That means that like the circumstances considered by Rothman J in Gillies v Brewer [2014] NSWSC 1198, Mr Clark faces the insuperable difficulty that what he seeks to do by way of matters pleaded in MFI 6, is to pursue a claim for unspecified damages, which arise from his imprisonment following conviction. That is not "damage" in any justifiable sense (see at [31]).
Mr Clark's extensive complaints about his solicitor and counsel have already been examined and dismissed in light of the evidence which they gave on appeal. I am satisfied, in the result, that to permit Mr Clark to pursue his proposed claims would involve an abuse of process, concerned as they are on the one hand with the conduct of his former solicitor and counsel during the trial, and on the other with the Court of Criminal Appeal's examination of that conduct on the conviction appeal.
To illustrate this point, in his further written submissions, Mr Clark advanced detailed submissions, for example, as to his complaints about the failure of Mr Webb and Mr Roff to prepare a draft proof of his evidence before the second trial. These were matters about which Mr Roff was cross-examined on appeal. Mr Clark also complained that in Mr Roff's absence, inexperienced clerks and other solicitors with inadequate knowledge of his case had attended to instruct counsel; that Mr Roff had not adequately briefed Mr Webb with his comprehensive responses and defences to the counts dealt with at the second trial; that they had failed to obtain statements from the exculpatory witness SC; that an exculpatory video had not been found in a timely manner, so that a witness DM had to be recalled to be cross examined about it, as the result of the flagrant incompetence of Mr Webb and Mr Roff; and that they had failed to follow his strict instructions
It is unnecessary to outline all of Mr Clark's other very detailed submissions as to numerous examples of what he wishes to argue was the flagrant incompetence of Mr Roff and Mr Webb in not advancing by way of his defence at trial, various defences, alibis and exculpatory material, which he had provided Mr Roff.
Despite Mr Clark's detailed submissions, it simply cannot be accepted that the claims he seeks to pursue are not hopeless or unarguable or that they enjoy a realistic prospect of success, given the case which he unsuccessfully advanced on the conviction appeal.
The claims Mr Clark now seeks to advance are also inconsistent with the concept of witness immunity discussed in Ollis v New South Wales Crime Commission [2007] NSWCA 311; (2007) 177 A Crim R 306 at [38] - [40]; and advocate's immunity discussed in D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [37] - [39] Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 and Attwells v Jackson Lalic Lawyers Pty Limited [2016] HCA 16. Also necessary to be borne in mind is the overriding and paramount duty which every legal practitioner owes to the Court, discussed in Gilles at [74] - [76], with which certain of Mr Clark's claims seem to be inconsistent.
Advocate's immunity applies to work by a party's legal representatives, in court or out of court which leads to a decision affecting the conduct of the case in court (see D'Orta at 500). In Attwells v Jackson Lalic Lawyers Pty Limited what was decided in D'Orta was adhered to by the plurality, which observed (at [35]) that: "… where a final order has been made resolving litigation, a claim that "but for the advocate's conduct, there would have been a different result" is objectionable as a matter of public policy. That is because the consequences of the decision about which the claimant wishes to complain are "consequences flowing from ... a lawful result ... lawfully reached." The advocate's immunity is, therefore, justified as an aspect of the protection of the public interest in the finality and certainty of judicial decisions by precluding a contention that the decisions were not reached lawfully." (footnotes omitted)
The matters about which Mr Clark seeks to complain involve complaints about his legal representatives' work in court and that connected with his proceedings out of court, intimately connected with their work in court. That he seeks to pursue his claims in both negligence and contract, makes no difference. Nor does the fact that in 2013 he received advice that his solicitors and counsel breached their duties to him under the Legal Profession Act 2004 (NSW) (repealed), if he has received such advice, or the nature and extent of the errors he alleges they made in the conduct of his proceedings.
As discussed in Jackson Lalic Lawyers Pty Limited v Attwells [2014] NSWCA 335 at [20] "the operation of the advocates' immunity does not depend on the degree of negligence involved. The public interest in the finality of litigation has been held to outweigh consequences to the aggrieved litigant of letting a wrong go without a remedy: D'Orta at [71] - [73]".
While, as Mr Clark submitted, in Young v Hones [2014] NSWCA 337, the Chief Justice observed at [5] that "it is not appropriate in all cases for questions of advocate's immunity to be decided as a preliminary question", in this case Mr Clark requires the Court's leave to bring a claim which raises the question of advocate's immunity, in circumstances where he has already unsuccessfully agitated the complaints which he seeks to advance in the conviction appeal. Unquestionably, as he explained when advancing his case, Mr Clark disagrees with his conviction and the Court of Appeal's rejection of his appeal.
Both his proposed pleading and the submissions which he advanced reveal that he does not accept the Court of Criminal Appeal's conclusions about the alleged serious deficiencies of the conduct of his trial by his legal representatives. That, however, is not a basis on which it can be concluded, as it must be, before Mr Clark is granted the leave that he seeks, that his proposed claims have a prima facie basis and are not "hopeless" or "unarguable".
That Mr Clark seeks now to claim that his legal representatives acted mala fides and in dereliction of their duty, to take up the language used in authorities such as Abriel v Rothman [2004] NSWCA 40 at [27] and Swinfen v Lord Chelmsford (1860) 5 H&N 890; 157 ER 1436, with the result that the advocates' immunity does not extend to them, takes the matter no further, given the nature of the case which he advanced on the conviction appeal. What he seeks to now pursue does not, in truth, depart from the case which he failed to establish on that appeal, he believes, because of the Court of Appeal's misapprehension of his case and the evidence which he claims proved it.
As Mr Clark submitted, he wishes to advance a case that his criminal trial lawyers did not act with due care and skill and accordingly are both criminally and civilly culpable for the dereliction of their duty to him. That, however, is in substance no different to his case on the conviction appeal. It did not succeed and cannot now be relitigated in the civil proceedings he seeks leave to pursue.
Mr Clark also wishes to pursue a case that Mr Webb and Mr Roff told blatant lies in their evidence in the appeal proceedings, about various identified materials which he believed were exculpatory and which competent counsel would have led at trial. That is also a hopeless claim which he is simply not entitled to advance, given their evidence in the appeal proceedings and the conclusions which the Court of Criminal Appeal reached on the matters over which issue was there joined. That case, too, as Mr Clark explained, depends on his view that the Court of Appeal erred in conclusions which it reached. While it is conceivable that they could be prosecuted for perjury, an exception to the witness immunity principle, the claims which Mr Clark seeks to advance have no prima facie from basis and are an abuse of process.
In the result the leave sought in respect of MFI 6 must be refused.

[6]

MFI 4

It must be remembered that what Mr Clark has to establish is that his claims are arguable and not totally hopeless (see Ford v Simes [2009] NSWCA 351 at [31]). That requires consideration of the legal principles involved in the cause of action upon which the claim is based, as well as the factual allegations in the proposed pleading (see Re Application of Potier [2012] NSWCA 222 at [17]). In determining whether there is any abuse of process involved in what he seeks to pursue in MFI 4, consideration must also be given to the other proceedings which he is pursuing. Provisions of the Limitation Act also arise for consideration.
MFI 4 commences with claims in relation to alleged false imprisonment, arising out of Mr Clark's arrest in January 2005, when charges were laid under the Crimes Act in relation to unlawfully obtained goods and possession of child pornography. It pleads that at trial before Garling DCJ in 2006, Mr Clark was convicted of the pornography charge and sentenced, but was found to have no case to answer in respect of another charge of assault officer in the execution of his duty. It also pleads that he was acquitted of the pornography charge after a successful appeal.
The State's case was that the leave Mr Clark sought would be refused both because of the hopelessness and futility of the proceedings which he hopes to bring and because, in part, they involve the pursuit of concurrent proceedings for substantially the same causes of action. It also identified problems with the proposed pleadings, which it is apparent, do not accord with the requirements of the Rules, in various ways, the details of which it is not necessary to further discuss in detail. Suffice it to note that the claimed duties, how they were breached and what loss or damage was caused, has not been pleaded as the Rules require. Nor is the claimed collateral abuse of process adequately pleaded, given the failure to identify the process or the individual who it is alleged invoked the process, so as to damage Mr Clark.
The claims sought to be advanced in this summons are directed to the same police officers in respect of whom claims have been advanced by Mr Clark in the proceedings dealt with by Hidden J in Clark v Robards [2014].
Claims are made in respect of false arrest, false imprisonment and malicious prosecution. There is no tort of false arrest, but the tort of false imprisonment is concerned with the liberty of an individual, which cannot be interfered with, without valid authorisation (as Kirby J explained in Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 at [138] and [140]). The elements of the tort of malicious prosecution are those earlier discussed.
Mr Clark pleads that he was arrested on 27 January 2005, charged at the police station and later that day granted conditional bail. In Clark v R [2008] it was observed that it was after complaint by a 14 year old boy that he was shown certain videos of naked boys at Mr Clark's home, that police were informed and on 27 January 2005 they executed a search warrant at his home, taking away computer equipment. Pornographic images of boys were found on two of the hard drives then taken (see at [10]). They were the subject of the possession of pornography count of which he was convicted. The appeal was upheld, it being concluded that possession of those images had not been established, that depending on proof that Mr Clark both knew of the data on the hard drive and how to retrieve it (see at [246] - [247]).
Appeals against his convictions of the two other offences with which he had been charged and convicted were then dismissed and he was resentenced to a term of imprisonment expiring on 11 December 2009, with a non-parole period expiring on 11 June 2008.
On that sequence of events, even though not adequately pleaded, it is apparent that Mr Clark wishes to pursue claims that his arrest on 27 January 2005 and later imprisonment were unlawful, false and unjustified, claims which are both not arguable and totally hopeless. So, too, are claims that his prosecution for these offences, by an unidentified prosecutor, was malicious. That he was finally found to have no case to answer in respect of an alleged assault and possession of unlawfully obtained goods, with which he was also charged, leads to no different conclusion, on what has been pleaded.
Further, what is sought to be advanced appears to deal with the same events, namely those of 27 January 2005 and what resulted, which are already the subject of claims advanced in the 2005 proceedings. There, by his 1 April 2010 second further amended statement of claim ("the 2005 claim") Mr Clark pursues claims in trespass, conspiracy, defamation and negligence. At [31] of that pleading vicarious liability for the alleged torts of the identified police officers is pleaded. The events of 27 January are pleaded in respect of alleged trespass at [33] - [38].
Given the procedural history of the 2005 proceedings, that in these proceedings, brought only in 2014, new tortious claims in respect of the same events are sought to be pursued involves an obvious abuse of process. It also raises Limitation Act considerations.
These proceedings were not commenced until June 2014. Under s 14 of the Limitation Act, pursuit of the claims which Mr Clark seeks leave to pursue became statute barred 6 years from the date on which his cause of action first accrued, that is, when the damage on which his claims depend occurred.
Mr Clark relies on the exception to s 14 provided in s 53, in the case of a person under a "disability", with the result, he contends, that the limitation period has not yet expired. "Disability" is defined in s 11(3)(b) to include a person who is, for a continuous period of twenty-eight days or more incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period, by reasons which include lawful restraint of his or her person.
That Mr Clark has been impaired in the management of his while in custody, must be accepted. The extent of that impairment is arguable, given all of the litigation he has been able to pursue in that time, including as to these events. In the circumstances, however, I am not satisfied that his claims are unarguable or hopeless, because of the expiry of the limitation period. Had that been the only problem with the claims pursued in MFI 4, the leave sought could have been given.
In MFI 4 there are other claims of false arrest, false imprisonment and malicious prosecution sought to be advanced in relation to charges laid on 5 August 2008, in relation to KB, which it is claimed were withdrawn in March 2012. Those charges are the subject of a claim in trespass at [45] of the 2005 claim and so also involve obvious abuse.
Claims of false arrest, false imprisonment and malicious prosecution are sought to be advanced in relation to charges laid on 28 August 2008, in relation to CB, DM and DB, of which Mr Clark was not convicted after trial in June 2009. They are also the subject of claims in trespass at [48] of the 2005 claim and also involve abuse.
The claim of abuse of process, by unidentified person in respect of "the criminal process" the subject of other claims in MFI 4, is so vaguely pleaded that it is impossible to see a basis on which it could be concluded that this claim is either arguable, or not totally hopeless.
In the result, the leave sought in respect of MFI 4 cannot be granted.

[7]

MFI 5

By this pleading Mr Clark seeks to pursue claims in negligence for injuries which he suffered while on remand in November 2007 when he was assaulted with a concealed fire hose nozzle; when he was assaulted by an officer on 6 December 2007; when he was again assaulted on 7 December 2007; when materials relevant to the pursuit of his legal proceedings, including exculpatory evidence, were not returned to him from 1 July 2009; when he was repeatedly threatened, intimidated and assaulted by other violent offenders between 17 September 2013 and February 2014; when he was falsely charged, arrested and imprisoned on 7 and 8 May 2015 in relation to an attempt to mislead the courts that correctional centre staff were not giving him documents; that these events also involved malicious prosecution, assault, trespass to goods and negligence and abuse of process. Claims for aggravated and exemplary damages are also sought to be pursued.
There are obvious problems with this pleading, given that it also does not comply with applicable requirements of the Uniform Civil Procedure Rules, as was the State's case.
The assault with the fire hose nozzle is already the subject of a negligence claim made in the 2005 claim (see at [125] - [129]). It would be an abuse of process to give Mr Clark leave to pursue the same claim in these proceedings.
The elements of the tort of malicious prosecution are those discussed in A v The State of New South Wales discussed at [58] above. In Landini v State of New South Wales [2008] NSWSC 1280 it was observed at [482] that the foundation of such an action lies "in the abuse of the process of the system of justice by wrongfully setting the law in motion" and that "it is designed to discourage the perversion of the machinery of justice for an improper purpose". It follows that it cannot be concluded that what Mr Clark seeks to pursue as malicious prosecutions has been shown to not involve an abuse of process, or not to be hopeless or unarguable, given that what is sought to be pursued concerns Mr Clark's treatment in custody.
The same conclusion must be reached in relation to the proposed claim of abuse of process, the tort of collateral abuse of process involving as it does acts amounting to a misuse or attempted or threatened misuse of identified process, involving intentions or motives on the part of an identified person, who set the proceedings in motion, in order to effect an improper purpose (see Maxwell-Smith v S & E Hall Pty Ltd [2014] NSWCA 146). That what Mr Clark seeks to pursue is not hopeless or unarguable has not been established.
Otherwise, what is claimed appears to be at least arguable and not totally hopeless. While Mr Clark must, accordingly, be given leave to commence these proceedings, he cannot do so on the basis of MFI 5, because, if filed, it would have to be struck out as not complying with the requirements of the Rules, earlier discussed.
Given the overriding purpose of the Civil Procedure Act, namely the just, quick and cheap resolution of the real issues in the proceedings and the obligations imposed by s 56(3) on parties to assist the Court further that purpose, Mr Clark's pleadings must be recast. He should have an opportunity to do so, other than in respect of the alleged 2007 assault with the fire hose, the malicious prosecution claims and abuse of process claims, in respect of which a basis for the leave sought has not been established.

Parties

Applicant/Plaintiff:

Clark

Respondent/Defendant:

State of New South Wales

Legislation Cited (10)

Legal Profession Act 2004(NSW)

Law Reform Vicarious Liability Act 1983(NSW)

Felons (Civil Proceedings) Act 1981(NSW)

Civil Procedure Act 2005(NSW)

Crimes (Administration of Sentences) Act 1999(NSW)

Crimes Act 1900(NSW)

Crown Proceedings Act 1988(NSW)

Law Reform (Vicarious Liability) Act 1983(NSW)

Limitation Act 1969(NSW)

Uniform Civil Procedure Rules 2005(NSW)

Cases Cited (47)

Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 Swinfen v Lord Chelmsford (1860) 5 H&N 890; 157 ER 1436 Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 Young v Hones [2014] NSWCA 337 Category: Principal judgment Parties: Peter Frederick Clark (Plaintiff) State of New South Wales (First Defendant) Attorney General of New South Wales (Second Defendant) The Commissioner of Corrective Services New South Wales (Third Defendant) The Department of Corrective Services New South Wales (Fourth Defendant) The GEO Group Pty Limited (Parklea Correctional Centre) (Fifth Defendant) Timothy Neil Robards (Sixth Defendant) Voros Lawyers Pty Ltd (Seventh Defendant) Theo Voros (Eighth Defendant) Daniel Roff (Ninth Defendant) Robert Webb (Tenth Defendant) Representation: Counsel: Mr A N Williams (First Defendant) Mr N Kabilafkas (Seventh and Eighth Defendants)

Adjournments and refusal of application for pro bono assistance

At the commencement of the December 2015 hearing, I refused Mr Clark's adjournment application, pending his pursuit of an application to the High Court for leave to appeal from a judgment of the Court of Criminal Appeal given on 16 October 2015, as to various of his convictions (see Clark v R (No 2) [2015] NSWCCA 271).
On Mr Clark's explanation of what he sought to pursue in the High Court, it did not seem likely that even if he was granted leave and his appeal succeeded, that all of his 2009 conviction of some 23 offences would be set aside. If that was a possible outcome, it would have meant that the leave he sought under the Felons Act would no longer have been necessary. That not being likely, I concluded that justice did not require the hearing of the summons to be adjourned.
I also refused to adjourn the hearing in order to refer Mr Clark for pro bono legal assistance. That was also a late application, first advanced in the motion filed on 1 December. It was supported by Mr Clark's submissions that the serious nature of the matters which he wished to pursue by his applications; the problems which he confronted in pursuing any litigation, given his incarceration; his past lack of success when he had appeared unrepresented; and his success when assisted by pro bono legal assistance, all meant that the adjournment and his referral for assistance should be granted.

Cited By (6)

Clark v State of New South Wales

Clark v State of NSW

Ea v Diaconu

Edwards v State of New South Wales

Farrow v Nationwide News Pty Ltd

Hrdavec v State of New South Wales