Clark v State of New South Wales

Basis for Reopening

1. As noted, Mr Clark's notice of motion sought to invoke the various powers conferred by Uniform Civil Procedure Rules ("UCPR") 36.15 to 36.18 to set aside the orders made on 10 October 2017. However, of those provisions, only UCPR 36.16(3A) has any potential application. Mr Clark does not allege that the orders were made "irregularly, illegally or against good faith" (UCPR 36.15(1). On any view the application was made after orders were entered (UCPR 36.16(1)), the orders were not default judgments or made in Mr Clark's absence (UCPR 36.16(2)) and, to the extent that the orders dismissed his application for leave under the FCPA, then they determined a "claim for relief" (UCPR 36.16(3)(a)). Further the Court is not moving of its own motion (UCPR 36.16(3B)) and it was not suggested that any part of the orders made on 10 October 2017 was affected by "an accidental slip or omission" (cf UCPR 36.17) or concerned an "unregistered business name" (cf UCPR 36.18).
2. Mr Clark's submissions sought to frame his application under UCPR 36.16(3A). This rule enables the Court to determine an application to reopen if "notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment is entered". The defendants contended that Mr Clark did not satisfy this requirement because he only filed a document entitled "Application" within that period and did not file a document entitled "notice of motion" until 16 days after the orders were entered.
3. In circumstances where Mr Clark gave clear and timely notice of his application within 14 days of the orders made on 10 October 2017 being entered, there are two possible paths by which his application can proceed even though no document entitled "notice of motion" was filed within the time specified by UCPR 36.16(3A).
4. The first possible path for the Court is to extend the 14 day period referred to in UCPR 36.16(3A). UCPR 36.16(3C) provides that "[d]espite rule 1.12 the Court may not extend the time limited by subrule (3A)". However, s 14 of the Civil Procedure Act 2005 ("CPA") enables the Court to "dispense with the requirements or rules of Court if satisfied that it is appropriate to do so in the circumstances of the case". There are conflicting statements in the Court of Appeal as to whether s 14 of the CPA can be used to extend the 14-day period referred to in UCPR 36.16(3A) (compare Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336 at [10] with AT v Commissioner of Police (NSW) (No 2) [2010] NSWCA 337 at [7] to [11]; "AT").
5. The second possible path is to exercise the power conferred by UCPR 18.2 to enable the Court to "make an order without notice of motion having been filed or served on a person if … (c) the court dispenses with the requirement for such notice to be filed or served". It is not a straightforward question as to whether this power could be engaged to dispense with so much of UCPR 36.16(3A) that requires the filing of a document that answers the description of a "notice of motion" in UCPR Part 18 as a precondition to the exercise of that power (AT at [9] to [10]).
6. In end result, it is not necessary to determine these matters as Mr Clark's application can be dealt with on the assumption that he has properly invoked UCPR 36.16(3A) without deciding that is so. In that regard the parties proceeded on the correct basis that the application was governed by the principles stated in Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300 ("Autodesk"). Autodesk only contemplates a matter being reopened in circumstances where a party has, through no fault of their own, not been heard (at 309 per Brennnan J and 317 per Dawson J) or the Court has "proceeded according to some misapprehension of the facts or the relevant law and ... this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing" (at 303 per Mason CJ). Otherwise Autodesk precludes a matter being reopened in respect of an issue that was raised at the hearing and decided (Autodesk at 309 per Brennan J).

11 October 2017 Submissions

1. In his submissions in response filed 28 November 2017, Mr Clark stated that he relied on all four submissions that he filed in support of his application (see [4] above). I will address each in turn.
2. In the submissions dated 11 October 2017, Mr Clark raised three matters that were said to warrant setting the orders made on 10 October 2017.
3. The first is that in deciding [2014] NSWSC 1414 I failed to take in account a passage from the judgment of Hidden J in Clark v State of New South Wales; Clark v Robards [2014] NSWSC 742 at [97]. [1]
4. In Clark v State of New South Wales; Clark v Robards [2014] NSWSC 742, Hidden J dismissed the proceedings commenced by Mr Clark in 2005 (the "2005 proceedings"). His Honour rejected an attempt by Mr Clark to file a consolidated statement of claim for these proceedings (the "2002 proceedings") and the 2005 proceeding. His Honour noted that the proposed consolidated claim included a number of "new claims" ([2014] NSWSC 742 at [71] and [75]). At [97] Hidden J stated: "It follows that Mr Clark's application to amend the 2005 proceedings must also be dismissed. Whether he wishes to pursue the new claims in the proposed pleading is a matter for him. If so, he would need to institute fresh proceedings. In deciding whether he should do so, he would be wise to consider whether they are viable and to have regard to the problems in the manner in which they are currently pleaded to which I have referred. In addition, he would need leave to pursue them under s 4 of the Felons (Civil Proceedings) Act 1981." (emphasis added)
5. This passage from Hidden J's judgment at [97] set out above is irrelevant. It only refers to the possibility of Mr Clark commencing "fresh proceedings" in respect of the so called "new claims", something he has not done.
6. The second point raised in the 11 October 2017 submissions, is that I failed to "properly take into account the decision of Hidden J" referred to by Mr Clark in one of his affidavits. The "decision" he identifies is not a decision but simply a comment of Hidden J during a hearing which I referred to in [2017] NSWSC 1414 at [53] to [54]. There was no misapprehension on my part and I did not fail to consider it.
7. The third point raised in the 11 October 2017 submissions is that in giving judgment in Clark v State of NSW [2017] NSWSC 1414 I proceeded on a "misapprehension of the facts" namely that "all the new claims pleaded in the [3FASOC] had been before Harrison J in 2010, when in fact the majority of the new claims, were in fact new claims, that had not been before Harrison J [or Hidden J]" and "this lead to a miscarriage of justice". [2]
8. Mr Clark seeks to make good this contention by referring to various parts of the 3FASOC that pleaded various charges that were laid against him between 2005 and 2009 that were later withdrawn and which he contends were not specifically referred to in the pleading placed before Harrison J (in the application that lead to Clark v State of New South Wales [2010] NSWSC 522) or Hidden J (in the application that lead to Clark v State of New South Wales; Clark v Robards [2014] NSWSC 742). [3] He further contends that the State should be required to produce copies of all charges and indictments laid against him since 1998 so that presumably he can plead all the various charges that have been laid against him and then later withdrawn.
9. The judgment in Clark v State of NSW [2017] NSWSC 1414 does not contain the misapprehension attributed to it by Mr Clark. In respect of each of the charges identified in the paragraphs of the 3FASOC in the 11 October 2017 submissions, the judgment recognised that earlier versions of the pleadings did not or may not have specifically identified that charge as having terminated in his favour (see [2017] NSWSC 1414 at [26], [41], [45] and [56] to [61]). However, leave to raise those pleadings was refused on the basis that, inter alia, they arose out of, or were not in substance different to, the events and charges that had been previously pleaded and that, given the history of the matter, the Court was not persuaded that an attempt to agitate them was not an abuse of process ([2017] NSWSC 1414 at [30], [35] [42], [46] to [47] and [62]).
10. It follows that no basis for reopening the judgment in [2017] NSWSC 1414 is made out by the 11 October 2017 submissions.

27 October 2017 Submissions

1. Mr Clark raised four points in these submissions.
2. The first is that in deciding [2017] NSWSC 1414 I failed to apply the law "in accordance with the principles set down in Beckett v State of New South Wales [2013] HCA 17" ("Beckett") in that Mr Clark claims to be entitled to litigate in respect of any charge that did not result in a conviction. [4]
3. There was a debate in the written submissions on this application about whether Beckett stands for the proposition asserted by Mr Clark. However, it is not necessary to determine that because the judgment in [2017] NSWSC 1414 did not depend upon a rejection of the principle which Mr Clark seeks to extract from Beckett.
4. This aspect of the 27 October 2017 submissions is directed towards that part of the 3FASOC which sought to plead a case of malicious prosecution in respect of charges that were not specifically identified in previous pleadings but which were related to, or arose out of, other charges that were. As already explained, those parts of the 3FASOC were rejected on the basis that Mr Clark had not demonstrated that they were not an abuse of process ([2017] NSWSC 1414 at [30], [35] [42], [46] to [47] and [62]). They were not rejected because of any finding on my part that, as a matter of law, a charge that was laid then withdrawn and another charge substituted for it could not be the subject of a viable claim for malicious prosecution.
5. The second point made by Mr Clark in the 27 October 2017 submissions is that the Court erred in adopting a "blanket or global approach" to the various additional claims he sought to litigate. This contention does not raise any matter of the kind contemplated by Autodesk and, for the reasons already stated, misunderstands the reasons given in [2017] NSWSC 1414.
6. The third and fourth points in the 27 October 2017 submissions complain that, in deciding [2017] NSWSC 1414, I erred in not requiring discovery from the State of New South Wales pursuant to Mr Clark's notice to produce prior to considering his application to file the 3FASOC. [5] As formulated this contention does not truly allege any "misapprehension" of the law or facts as contemplated by Autodesk. In any event, the approach adopted in [2017] NSWSC 1414 was to determine what form of pleading would be allowed to be filed before determining whether the State would be put to the burden of discovery in a proceeding that is over 15 years old ([2017] NSWSC 1414 at [10]). Nothing raised by Mr Clark suggests that was erroneous.

14 November 2017 Submissions

1. In his 14 November 2017 submissions, Mr Clark raised three matters as warranting a reopening of [2017] NSWSC 1414.
2. The first was the same as the third and fourth points raised in the 27 October 2017 submissions which have already been addressed. [6]
3. Second, Mr Clark again contends that in deciding [2017] NSWSC 1414 I "erred, misapprehend[ed], misapply[ed] and/or [did] not apply" the "test in Beckett v New South Wales [2013] HCA 17". Mr Clark submitted that "under the law all that [he] had to do with respect to satisfying that there was a 'prima facie' ground to any new claim was [to demonstrate or allege] that a charge had terminated in [his] favour". [7] Mr Clark's submissions then give examples of charges that were laid against him and withdrawn which were pleaded or particularised in the 3FASOC and which he contends were not specifically pleaded or particularised in the pleadings placed before Harrison J or Hidden J.
4. For the reasons already noted this contention is misconceived. Under s 5 of the Felons (Civil Proceedings) Act, Mr Clark was required to demonstrate that any proceedings he institutes are not an abuse of process and also demonstrate that there is a prima facie ground for the proposed proceeding. His submission is directed to the latter requirement whereas in [2017] NSWSC 1414 I was not satisfied of the former ([2017] NSWSC 1414 at [30], [35], [42], [46] to [47] and [62]).
5. The balance of the 14 November 2017 written submissions in relation to this complaint take issue with the following findings in [2017] NSWSC 1414 concerning proposed paragraphs 7 and 8 of the 3FASOC: "17. Paragraphs 4 to 6 [of the proposed Third Further Amended Statement of Claim] concern the 2000 false instrument charge. Leave is not required under the FCPA as they are already in the existing statement of claim. Those paragraphs can proceed. 18. Paragraphs 7 and 8 [of the proposed Third Further Amended Statement of Claim] now seek to introduce an allegation that, following Mr Clark's acquittal on the charges referred to in paragraphs 4 to 6, back-up charges were presented against him, in respect of which he was initially convicted but then was partially successful on appeal. The proceedings seek to make out a claim for malicious prosecution in relation to those charges. 19. It is an interesting question as to whether leave is in fact required under the FCPA to brings in these matters. However, in the end result it is not necessary to resolve that. The State raised an issue as to whether this cause of action was statute barred. It raised that contention in relation to a number of amendments in the proposed third further amended statement of claim. Mr Clark's response to all of those matters was to contend that, by reason of the various terms of imprisonment he has served, he was under a relevant "disability" for the purposes of s 52 of the Limitation Act 1969 such that time did not run. In the end result, the determination of that contention appears to involve a factual issue, which it is not appropriate to determine on this application. Otherwise Mr Clark submitted that, even if time did run, these amendments could be supported under subsection 65(2)(c) of the Civil Procedure Act as they, so he contends, arise out of the facts that gave rise to the already pleaded causes of action concerning the 2000 false instrument charge. 20 There is much to be said for that but even if that is right Mr Clark still needs to demonstrate that, as a matter of discretion, leave should be allowed to raise these matters. The factors governing the exercise of that discretion are articulated in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2007] HCA 27 and find statutory expression in ss 56 and following of the Civil Procedure Act. 21 In circumstances where the history as I have described is such that Mr Clark has, despite his imprisonment, been litigating for a long period of time over a vast number of charges, the Court is entitled to expect some particularly persuasive explanation to be put forward at this point as to why these matters are now being raised for the first time. 22 From the Bar table Mr Clark referred to some injuries he had suffered in custody and the difficulties he has had with access to documents. The detailed "submissions/affidavits" he filed in support of his application also make reference to these matters. Nevertheless I do not accept that explains the long delay before the bringing in of these matters. There was a period in 2004 when Mr Clark was represented and his solicitors filed pleadings on his behalf. Access to documents is not really required to plead these matters as there is no suggestion that he was not at least aware of his conviction and partial success on appeal in relation to these convictions. Mr Clark is in no different position from any other litigant, albeit that he suffers from the undoubted impediment that he is incarcerated. The bringing of a totally fresh matter some 15 years later needs extremely cogent explanation and it has not been given. Leave to plead these matters is refused." (emphasis added)
6. Mr Clark contends that he was not given an adequate opportunity to explain the delay in bringing in these amendments. [8] Mr Clark is an experienced litigant who came to Court carrying the burden of persuading it to grant leave under the FCPA to commence proceedings and leave to amend under the Civil Procedure Act and UCPR. As this extract suggests, the topic of the absence of any explanation for the previous failure to plead these matters was specifically raised with him during the hearing and he sought to address it. [9] He did not seek an adjournment to provide some further explanation.
7. Mr Clark also contends that the contention that the pleading in respect of the backup charges being "totally fresh" is incorrect. He contends that the Court erred in failing to read the original statement of claim filed in the 2002 proceedings on 21 May 2002 which contains the following entries "101 The plaintiff was arrested shortly before 10.00 am on 21 February 2000 by officers of the New South Wales Service, and detained in their custody. 102 The plaintiff on 21 February 2000 subsequent to his arrest and detention was charged by an officer of the New South Wales Police Service with (a) Unauthorised documents Crimes Act. … 105 At the hearing the plaintiff offered no evidence and the Magistrate Mr O'Keefe found the plaintiff guilty. 106 The plaintiff immediately filed an all grounds appeal. That went before his Honour Judge Bell in the District Court Taree. 107 Judge Bell upheld the appeal in part." (emphasis in original)
8. An amended statement of claim was filed on 26 June 2002 which contained similar allegations. [10] However, all reference to these events was deleted from the 2002 proceeding when a further amended statement of claim was filed on 28 March 2013.
9. The allegations set out in [33] can be compared with proposed paragraphs 7 and 8 of the 3FASOC the subject of the above findings in [2017] NSWSC 1414, namely: "7. On [ ] the Plaintiff appeared unrepresented in the Local Court at Taree before Magistrate O'Keefe at which time MUXLOW and METCALF proceeded on the backup charge of 7 counts of making and/or using 'unauthorised documents' to wit, the 'subpoenas'. The Plaintiff pleaded not guilty to all counts, did not give evidence and/or put on a defence. His Honour subsequently convicted the Plaintiff on the 7 counts of 'unauthorised documents'. 8. On [ ] the District Court at Taree heard an appeal into those 7 'unauthorised document' convictions. The Plaintiff, again unrepresented, was successful in part, with his Honour Bell DCJ, quashing 3 of the 7 'unauthorised document' convictions."
10. During the hearing on 10 October 2017 the following exchange occurred in relation to these paragraphs of the 3FASOC [11] : "HIS HONOUR: The next two, we get to proposed paragraphs 7 and 8. There you talk about some backup charges. Am I right in saying they were backup charges to the pervert course of justice charge that you went to trial before Dowd J and you eventually had your conviction quashed? PLAINTIFF: No. HIS HONOUR: What are those backups? PLAINTIFF: The seven counts of false instruments, the first seven charges, which is referred to at paragraph 4, seven counts of false instruments, the police alleged that I forged the District Court seal on a set of submissions. HIS HONOUR: I see. PLAINTIFF: There was a backup charge to that which was the seven counts of false instruments. HIS HONOUR: You eventually go convicted of those, is that right, and then upheld on appeal? PLAINTIFF: That's correct, in relation to three or four of them were upheld on appeal and three weren't. HIS HONOUR: Quashing 3, I see. You don't know the dates when that happened? PLAINTIFF: No, that's right. That is part of the notice to produce would not give me those dates. HIS HONOUR: Have you got an approximate time period? PLAINTIFF: No, you Honour. HIS HONOUR: Year? PLAINTIFF: Year, 2001, I believe. HIS HONOUR: Right. Now, I don't understand that you have previously pleaded that? PLAINTIFF: No, I haven't. HIS HONOUR: it is not in any of the versions? PLAINTIFF: No. As far as I can recall."
11. Thus, even if in deciding [2017] NSWSC 1414 the Court proceeded on the misapprehension that paragraphs 7 and 8 of the 3FASOC or something similar had not previously been pleaded, it was a misapprehension induced by Mr Clark and thus was a "fault of [his] own" (Autodesk at 309; see [10]). Otherwise the finding in [2017] NSWSC 1414 that there was not an adequate explanation for the delay in pleading a cause of action in respect of those charges is equally applicable to a cause of action that was initially pleaded, then deleted and not reintroduced until 14 years later.

28 November 2017 Submissions

1. Mr Clark's 28 November 2017 submissions raise three points. The first concerns whether his "application" filed 11 October 2017 was sufficient to invoke UCPR 36.16(3A). It is unnecessary to address that further.
2. The second concerns the effect of Beckett. This has already been addressed.
3. The third concerns [2017] NSWSC 1414 at [59] in which I stated that the first day of his trial "appears to have been 26 March 2009" whereas Mr Clark states it was 11 May 2009. A review of [2017] NSWSC 1414 at [56] to [62] confirms that any such misapprehension was immaterial.
4. It follows that no basis for reopening [2017] NSWSC 1414 has been established.

The Fourth Further Amended Statement of Claim

1. One of the orders made on 10 October 2017 was that Mr Clark was directed to file and serve a statement of claim that was confined to pleading the facts, matters, circumstances and causes of action referred to in paragraphs 4, 5, 6, 9, 10 to 12 and 13 to 21 of the 3FASOC. They all concern events in 2000. This order reflects Mr Clark's failure to obtain leave to expand his claims by filing the 3FASOC.
2. On 7 November 2017 Mr Clark filed a document entitled "4th Further Amended Statement of Claim". On its face this pleading raise matters that travel well beyond the orders made on 10 October 2017. On 16 November 2017 an affidavit sworn by Mr Clark was filed which appears to support an application for leave under the FCPA and for leave to amend.
3. It will be a matter for the parties to regularise the status of this material. However, the parties should conduct the matter on the basis that, unless otherwise ordered, the only issues to be litigated are those the subject of order 1 made on 10 October 2017.

Orders

1. Accordingly, the Court orders that:
2. The plaintiff's "application" filed 11 October 2017 and notice of motion filed 27 October 2017 be dismissed;
3. The plaintiff pay the costs of the "application" filed 11 October 2017 and the notice of motion filed 27 October 2017.

Endnotes

1. 11 October 2017 submissions at [1]; see also 20 November 2017 written submissions bearing the date 14 November 2017 at p 1 and [37] to [41].
2. 11 October 2017 submissions at [3] to [4]
3. Specifically paragraphs 24, 41, 48 and 61 of the proposed 3FASOC; 11 October 2017 submissions at [4].
4. 27 October 2017 submissions at [1] to [3].
5. 20 November 2017 written submissions bearing the date 14 November 2017 at [1] to [3].
6. 20 November 2017 written submissions bearing the date 14 November 2017 at [2] to [3] and [43] to [45].
7. 20 November 2017 written submissions bearing the date 14 November 2017 at [4].
8. 20 November 2017 written submissions bearing the date 14 November 2017 at [18].
9. T 10/10/17 at 8.
10. Paragraphs 130 to 144.
11. T 10/10/2017 pp 5 to 6. 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 February 2018