Clark v State of New South Wales [2018] NSWSC 450 | Case summary

The application for a stay

I turn now to Mr Clark's application for a stay of proceedings until either he obtains legal assistance or is released from custody. There is no gainsaying, as the respondents have argued, that this is a most unusual, indeed unorthodox application. I am not concerned with serious criminal proceedings where an accused person is unable to obtain counsel: Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57. These are civil proceedings voluntarily brought by Mr Clark in pursuance of a private right to sue for damages. Any power to grant a stay needs to be exercised with that consideration firmly in mind. The special or exceptional circumstances pointed to by Mr Clark have to be balanced against the legitimate interest of the respondents and their witnesses in not being unduly vexed by protracted litigation. Moreover, not unlike the accused in a criminal trial, the defendants in civil proceedings have a right to a fair trial: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25; Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27 ("Batistatos"). I interpolate that the latter authority indicates that that part of Mr Clark's argument based upon the suspension of time running against a plaintiff under a disability under ss 50F and 52 of the Limitation Act 1969 (NSW) is misconceived. Without deciding whether Mr Clark can bring himself within those provisions, Batistatos demonstrates that even in the case of proceedings brought by a person under a disability, a fair trial may not be possible due to a serious lapse of time. In Batistatos the proceedings were summarily dismissed on this basis, notwithstanding that he was clearly disabled and not subject to the constraints imposed by the normal limitation period.
The matters Mr Clark was given leave to bring under FCPA commence as long ago as 6 December 2007 and cover many allegations extending over the many years that Mr Clark has been in custody. Putting off requiring Mr Clark to properly plead until at least June 2021 (if he is indeed then granted parole) it is entirely inimical to the interests of the administration of justice and the right of the respondents to a fair trial. It may also offend the overriding purpose of civil procedure in this State expressed in s 56 of the Civil Procedure Act 2005 (NSW) ("Civil Procedure Act"), which is to facilitate the just, quick and cheap resolution of the real issues in civil proceedings.
I appreciate that s 67 of the Civil Procedure Act reposes a broad power in the Court to stay proceedings. I am prepared to accept that there may be cases where the power could be invoked by the party who has brought the proceedings. Appropriate cases, however, must be exceedingly rare and when one arises, it is unlikely that the discretion could properly be exercised other than for a short time. As Mr Williams of Counsel has argued, generally the legitimate purpose of such a stay would be well satisfied by the exercise of the more usual power to grant an adjournment for a limited period.
Mr Clark has set out, in quite considerable detail, the circumstances of his incarceration, which he argues make his case exceptional. I will not set out what he has said, which is fully detailed in his affidavit and submissions. I accept, given the crimes for which he has been convicted, that his circumstances in custody are more onerous than those of others. Some at least of his burdens are imposed at his request and for his protection. I understand from what he has said, however, that he now at least has access to a laptop computer for his own use, which must make the preparation of legal documents easier. Notwithstanding the detail he has provided and what I have said about his circumstances, I am not satisfied that they bring this case into what I have described as the exceedingly rare category of case where granting a stay on the application of the person bringing the proceedings is properly engaged.
Moreover, it must be said that Mr Clark is an intelligent man, as he acknowledges, who is a very experienced self-represented litigator. He displays great familiarity with the Court's practice and procedure. I am of the view that compliance with the orders of Schmidt J is not beyond him and although prisoners may have disadvantages which other self-represented litigants do not, given the time that has elapsed since the orders were made, Mr Clark ought to have been capable of complying with them without the assistance of counsel. This is especially so given the degree of latitude generally allowed self-represented litigants in this Court.
I acknowledge the force of the arguments he has advanced about the unavailability of textbooks and pleading precedents. I have considered the samples he has provided in his submissions in response of what he can do when given appropriate materials to work with; that is to say, what he can produce when properly guided by useful precedents. However, acknowledging that, I am not satisfied that the absence of textbooks or pleading precedents makes this case one where it is proper to grant a stay on the motion of the applicant. It follows that I am not persuaded that Mr Clark has made out grounds for the relief sought in his motion of 31 January 2018 and I dismiss it. (Following further discussion with the parties the orders below were made.) 1. The Notice of Motion propounded on 31 January 2018 is dismissed; 2. The applicant is to file an amended Statement of Claim conforming to the orders made by Justice Schmidt on 20 June 2016 by 4 June 2018 3. The applicant is to pay the costs of each respondent of the motion including the costs referrable to its earlier iteration of the 29 November 2017.

Mr Clark's argument

In argument both written and oral, Mr Clark points out that the rules do not render a previous referral a bar to further referral. Rather, r 7.36(2A) of the UCPR provides that the Court may not refer a litigant for assistance "...if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of 3 years unless the Court is satisfied that there are special reasons that justify a further referral."
Mr Clark has helpfully set out the relevant history of assistance received by him in his affidavit and submissions of 31 January 2018. A referral had been made to Counsel to resist an application to dismiss proceedings commenced by him in 2002. Notwithstanding the assistance of counsel enjoyed by Mr Clark, Johnson J dismissed those proceedings on 30 June 2006 (Clark v State of New South Wales [2006] NSWSC 673). On an application for leave to appeal from that decision, McColl and Basten JJA referred Mr Clark again for assistance under r 7.36 UCPR. Mr J Sheller and Mr D Joyce, both of Counsel, accepted the referral and appeared amicus curiae. They were successful in persuading the Court of Appeal to reinstate two of the three causes of action dismissed by Johnson J (Clark v State of New South Wales [2012] NSWCA 139). After Hidden J, in 2014, dismissed proceedings commenced by Mr Clark in 2005 (Clark v State of New South Wales; Clark v Robards [2014] NSWSC 272), he again was referred for assistance under r 7.36 by Beazley P and Basten JA. Mr M Heath of Counsel accepted the referral and appeared amicus curiae unsuccessfully. The 2005 proceedings remain dismissed: Clark v Robards (No 2) [2016] NSWCA 249.
Mr Clark's argument may be summarised as follows: In truth, he has had the benefit of pro bono assistance only once when Ms Louise McManus (as her Honour then was) appeared for him before Johnson J in 2006. He was then at liberty and able to confer and provide instructions to Counsel. Mr Clark drew a distinction between this experience and his experience with other counsel on subsequent referrals appearing amicus curiae. He said that he had no direct contact with those counsel or input into the arguments to be put. He argued that those appearing amicus curiae are not directly representing a party, but simply assisting the court to arrive at the correct decision.
He also argued that even if his first contention was rejected and his referral to Mr Heath engaged r 7.39 UCPR, there was no bar to the referral made by Adams J. He argued that Adams J must have been satisfied that the requisite special reasons existed and, in any event, the referral was supported by learned counsel appearing for the State of New South Wales. It was not in these circumstances for the Bar Association to simply refuse his application for legal assistance given that it was made under the auspices of a referral from the Court.
Finally, Mr Clark argued that merely passing on a referral for consideration by the Bar Association under its criteria for a grant of pro bono assistance is not what the Rules required. Mr Clark emphasised r 7.33(2) UCPR which states that the purpose of the Rules is to facilitate, where it is in the interests of the administration of justice, the provision of legal assistance to litigants who are otherwise unable to obtain assistance. He also pointed out that under r 7.36(4) UCPR, if a Judge makes the order, "[t]he Registrar must attempt to arrange for legal assistance to be provided to the litigant by a barrister or solicitor on the pro bono panel."
Mr Clark submitted that the effect of these rules is: "...that the Registrar is to directly contact a solicitor or barrister who is on the pro bono list. Not that the Registrar simply forwards the referral to the manager of the (Bar Association) Referral Scheme, where it can be summarily dismissed by that manager without the manager knowing why the Court had made the referral in the first place as has happened in this case."
As can be seen from the form of the relief sought and the arguments advanced by Mr Clark, the substance of his case is that the Registrar has not complied with the obligations imposed by the Rules. Essentially, he is seeking a direction that the Registrar comply with the order made by Adams J on 18 November 2016.

Clark v State of New South Wales

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