Clark v State of New South Wales

Dismissal for want of due despatch

1. The first ground for dismissal relied upon by the State was that the plaintiff had not prosecuted the proceedings with due despatch. Rule 12.7 of the UCPR relevantly provides: "(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit."
2. As a general proposition, when there has been no hearing on the merits, a court should be reluctant to make an order dismissing proceedings for want of due despatch, unless there has been an intentional and contumelious default on the part of the plaintiff, or inordinate or inexcusable delay giving rise to a substantial risk that a fair trial would not be possible: Birkett v James [1978] AC 297 at 318; Green v Healthscope Ltd (t/as Hills Private Hospital) [2015] NSWCA 325 (Green) at [26]. In considering the application of this proposition in the context of r 12.7 it is, however, necessary to have regard to the "overriding purpose" referred to in s 56 of the Civil Procedure Act 2005 (NSW), being to "facilitate the just, quick and cheap resolution of the real issues in the proceedings": State of New South Wales v Plaintiff A [2012] NSWCA 248 at [17]; Hobbs v Australian Securities and Investments Commission [2013] NSWCA 432 at [52]; Green at [26].
3. The substance of the State's submissions in this regard was that: 1. in October 2017, the plaintiff was granted conditional leave to amend; 2. the plaintiff did not replead his claim in the terms permitted within the time permitted; 3. the plaintiff "first indicated an intention to plead his claim in accordance with the leave granted by Beech-Jones J in August 2020"; 4. the plaintiff "quickly resiled from that intention and now wishes to rely on an earlier version of his pleading which does not comply with the leave granted"; and 5. the plaintiff has "offered to the Court no account for his present approach".
4. The State was not, on this application, relying on any delay between the commencement of proceedings and 10 October 2017.
5. The period between Beech-Jones J's judgment on 10 October 2017 and 9 July 2020, when the Registrar directed the plaintiff to file a version of the statement of claim complying with Beech-Jones J's judgment, appears to have involved a number of appeals and applications. No specific submission was made as to what occurred or what should have occurred during this period but did not come to fruition. No application for dismissal for want of due despatch was made by the State prior to 9 July 2020.
6. Moreover, on 9 July 2020 the matter was listed before the Registrar, at which time no application was made, or even foreshadowed, for dismissal under r 12.7 of the UCPR. In the circumstances, I am not prepared to conclude that there was such a want of due despatch, during the period from 10 October 2017 and 9 July 2020, as to justify a conclusion that it would be just to dismiss the proceedings under r 12.7 now, especially given that further steps have been taken by both parties in these proceedings as a result of the directions given on 9 July 2020 by the Registrar. It would also not in my view facilitate the just, quick and cheap resolution of the real issues in the proceedings now to order that the proceedings be dismissed for want of due despatch during the period from 10 October 2017 and 9 July 2020, since this would be likely to entail at least a further appeal and possibly other interlocutory steps.
7. On 9 July 2020, the plaintiff was directed to file and serve a form of statement of claim giving effect to Beech-Jones J's 10 October 2017 judgment by 6 August 2020. The plaintiff complied with that direction by filing the 24 July 2020 statement of claim.
8. The State accepted that the 24 July 2020 statement of claim complied with Beech-Jones J's 2017 judgment except for the inclusion of the abuse of process pleading in par 27. For the reasons given above, I am of the view that the State misapprehended what the plaintiff was permitted to plead by Beech-Jones J. The plaintiff was entitled to plead the abuse of process cause of action in the form articulated in par 27, subject to the limitations identified in that regard in the Court of Appeal's 2012 judgment.
9. The plaintiff's responses of 12 and 14 August 2020, which explained why the plaintiff did not accept the State's position that he was not entitled to plead the abuse of process cause of action, were, as I have already indicated, not unreasonable. Consequently, having regard to my conclusions concerning what the plaintiff was permitted to plead by the Court of Appeal's 2012 judgment, Hidden J's 2014 judgment and Beech-Jones J's 2017 judgment set out above, I do not accept that the plaintiff "quickly resiled from that intention and now wishes to rely on an earlier version of his pleading which does not comply with the leave granted" or that the plaintiff has "offered to the Court no account for his present approach". As I have already explained, the State's submissions appear to be based on a misunderstanding of what the earlier judgments permitted the plaintiff to plead. Properly understood, each of those judgments permitted the plaintiff to plead his abuse of process cause of action, except that the Court of Appeal struck out subpars (b) and (c) of the particulars and limited the factual basis for the claim to the events in 2000.
10. As noted above, it does not appear that the Court of Appeal's striking out of subpars (b) and (c) of the particulars to the abuse of process pleading was specifically brought to the attention of Beech-Jones J when his Honour was considering the form of the pleading in 2017. The other relevant aspects of Beech-Jones J's judgment were consistent with the Court of Appeal's 2012 judgment and Hidden J's 2014 judgment.
11. At the hearing before me on 30 March 2021, when these matters were brought to the plaintiff's attention, he conceded that subpars (b) and (c) of the particulars to par 27 of the 24 July 2020 statement of claim (which were identical to subpars (b) and (c) in the form of the pleading considered by the Court of Appeal) should be deleted from the 24 July 2020 statement of claim. Otherwise, the conduct in par 27 alleged to have given rise to the abuse of process pleaded in the 24 July 2020 statement of claim is limited to the conduct which occurred in 2000, in accordance with the Court of Appeal's judgment.
12. In light of what has occurred since 9 August 2020 and the reasons given by the plaintiff for his approach, there does not appear to me to have been any relevant want of due despatch on his part such as would justify summary dismissal. Consequently, I refuse to dismiss the plaintiff's proceedings under r 12.7 of the UCPR. Nonetheless, in light of the plaintiff's proper concession concerning subpars (b) and (c) of the particulars to par 27 of the 24 July 2020 statement of claim, I propose to order that those subpars (b) and (c) be struck out and that they should be ruled through on the Court file copy of the 24 July 2020 statement of claim with the notation "Struck out by order of Wright J on 16 April 2021". In this way, the pleading will be amended without the necessity for the plaintiff to file a further document.

Dismissal as vexatious and an abuse of process

1. The second ground for summary dismissal relied upon by the State was that the plaintiff's proceedings were vexatious and an abuse of process. In that regard, r 13.4 of the UCPR relevantly provides: "(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) the proceedings are … vexatious, or … (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
2. Generally, the test to be applied is that the case of the plaintiff must be so clearly untenable that it cannot possibly succeed: General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 at 130; [1964] HCA 69 (Barwick CJ). Once it appears that there is a real question to be determined, whether of fact or law, and that the rights of the parties depend upon it, then proceedings should not be dismissed as vexatious or an abuse of process: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 (Dey) at 91 (Dixon J); [1949] HCA 1. There will be a "real question" unless the defendant can show that it was so certain that the question must be answered in the defendant's favour that it would amount to an abuse of the process of the court to allow the action to go forward for determination: Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 (Spencer) at [54] (Hayne, Crennan, Kiefel and Bell JJ).
3. In light of those principles, exceptional caution should be exercised and demonstrated certainty of the outcome of the litigation is required before proceedings are summarily dismissed under r 13.4(1): Spencer at [55]; Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 at [30] (Leeming JA).
4. The concepts of "vexatious" and "abuse of process" in r 13.4(1) are not necessarily distinct and they tend to overlap. "Vexatious", in this and similar contexts, refers to proceedings that are productive of serious and unjustified trouble or harassment: Regie Nationale des Usines Renault SA & Anor v Zhang (2002) 210 CLR 491; [2002] HCA 10 at [25] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). Further, vexatious proceedings can also be instances of proceedings that are an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393; [1993] HCA 77 (Mason CJ, Deane and Dawson JJ).
5. The State did not submit that the 24 July 2020 statement of claim, in so far as it was within the scope of the leave granted by Beech-Jones J, did not disclose a cause of action or was frivolous. It was submitted in substance that the proceedings were vexatious and an abuse of process because they involved "an attempt to re-litigate a question that had already been determined", which amounted to an abuse of process. It was contended in effect that [64] of Beech-Jones J's 2017 judgment, which has been quoted above, expressly limited the causes of action that the plaintiff could plead to those specified in that paragraph and these did not include abuse of process as pleaded in par 85 of the form of pleading considered by his Honour (which corresponds with par 27 of the 24 July 2020 statement of claim).
6. I do not accept that this provides a sufficient basis for dismissing the proceedings under r 13.4 of the UCPR for a number of reasons. First, the State's contention only relates to the pleading of abuse of process in par 27 of the 24 July 2020 statement of claim and does not affect the remainder of the pleading. Notwithstanding this, the State appeared to contend that the whole of the proceedings should be dismissed. I can see no basis why the whole of the proceedings should be dismissed in the circumstances.
7. Secondly, I did not understand Beech-Jones J to have intended to prevent the plaintiff from relying on the cause of action pleaded in par 85 of the form of pleading before his Honour. At [63] of his judgment, Beech-Jones J said "paragraph 81 onwards will need to be reconsidered to conform with my findings". In so saying, his Honour was indicating that the material facts relied upon by the plaintiff to support the pleadings in par 81 onwards, including par 85, were limited to those which had been pleaded earlier in pars 4, 5, 6 and 9 to 21, as specified in [64]. Paragraph 27 of the 24 July 2020 statement of claim is consistent with this approach.
8. Thirdly, even if I am wrong concerning what Beech-Jones J intended, since his Honour's attention was not drawn to the fact that the Court of Appeal in its 2012 judgment permitted the plaintiff to plead the abuse of process cause of action, now contained in par 27 of the 24 July 2020 statement of claim provided that subpars (b) and (c) of the particulars to that paragraph are deleted and the alleged conduct is limited to that in 2000, it does not appear to me that his Honour's judgment should be taken to prohibit what the Court of Appeal permitted. Hidden J in his 2014 judgment did not take a different approach from that of the Court of Appeal. In these circumstances, there does not appear to me to be any reason why the plaintiff should not be entitled to plead par 27 in the statement of claim to be relied upon by him, with subpars (b) and (c) of the particulars struck out.
9. This is simply not a case where it can be concluded, without a hearing on the merits, that the plaintiff's claims, including those pleaded in pars 4, 5, 6 and 9 to 21 as well as par 27 of the 24 July 2020 statement of claim, are so certain to be determined in the State's favour that it would be vexatious or an abuse of process to allow the proceedings to continue.
10. For these reasons, I refuse to dismiss the plaintiff's claim summarily under r 13.4 of the UCPR.

Costs

1. The State has been unsuccessful on its application for summary dismissal. Nonetheless, the plaintiff has now conceded that subpars (b) and (c) of the particulars to par 27 of the 24 July 2020 statement of claim should be struck out, consistently with the Court of Appeal's decision in 2012. To that very limited extent, the defendant has enjoyed some success. In all the circumstances, it appears to me that the appropriate order is that the costs of the notice of motion should be the plaintiff's costs in the cause.

Preparation of the matter for hearing

1. It is essential, and as I understand it both parties accept, that the matter should be prepared for hearing as soon as possible. To this end, I propose to direct that the State file its defence and that the plaintiff should serve all of the evidence on which he relies within a certain period, or such longer period as the Registrar may determine, and then the State should be required to file its evidence similarly. The plaintiff should be allowed time to file any evidence in reply. Once those steps are taken, the matter should then be listed before the Registrar, on which occasion any further preparatory steps could be addressed and a date set for the final hearing.

Conclusion and orders

1. For these reasons, the Court orders and directs that: 1. Subparagraphs (b) and (c) of the particulars to paragraph 27 of the plaintiff's further amended statement of claim filed on 24 July 2020 are to be struck out by being ruled through on the Court file copy with the notation "Struck out by order of Wright J on 16 April 2021". 2. The defendant's notice of motion filed on 14 September 2020 is otherwise dismissed. 3. The costs of the motion filed on 14 September 2020 are to be the plaintiff's costs in the cause. 4. The defendant is to file and serve its defence on or before 30 April 2021. 5. The plaintiff is to serve on the defendant the evidence upon which he intends to rely, including signed evidentiary statements from all witnesses and copies of all documents, on or before 12 July 2021, or such other time as the Registrar may direct. 6. The defendant is to serve on the plaintiff the evidence upon which it intends to rely, including signed evidentiary statements from all witnesses and copies of all documents, on or before 4 October 2021, or such other time as the Registrar may direct. 7. The plaintiff is to serve on the defendant any evidence in reply, on or before 1 November 2021, or such other time as the Registrar may direct. 8. The matter is listed for directions before the Registrar on 5 November 2021. 9. The parties have liberty to apply to the Registrar to have the matter relisted on 3 days' notice.

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