Clark v State of New South Wales (No 1)

File Number(s): 2002/69098

JUDGMENT

1. Mr Clark sues the defendant claiming damages for false arrest, false imprisonment, malicious prosecution and abuse of process. Remarkably, his cause of action was commenced in this Court by pleadings filed in 2001. The current version of his pleadings, styled a further amended statement of claim, was filed on 24 July 2020. The matter was listed for a hearing in this Court to commence on 7 July 2025 with an estimate of 10 days in accordance with orders made by his Honour, Chen J on 8 August 2024.

2. Amongst the directions orders made by Chen J was an order that the defendant prepare and serve on Mr Clark a draft court book containing the pleadings, the particulars and evidentiary statements and affidavits to be relied on by both sides in the proceedings. That direction has been complied with, and a draft court book has been prepared and served in accordance with those directions.

3. These proceedings were commenced over 20 years ago by the original statement of claim. Mr Clark's current statement of claim makes allegations against two police officers, Detective Senior Constable (DSC) Muxlow and DSC Metcalfe, in relation to conduct alleged in February 2000; one arrest on 21 February 2000 and a subsequent arrest on 29 February 2000.

4. In relation to the charge of perverting the course of justice, which was the second of those two arrests, Mr Clark was convicted on 22 April 2001, sentenced to 12 months periodic detention, and that in February 2002 the Court of Criminal Appeal upheld his appeal and quashed that conviction. It is on the basis of those facts that the plaintiff currently pleads his causes of action.

5. The State of New South Wales has filed a defence, which was filed initially on 24 May 2021 and the case was listed for hearing in July 2025. For logistical reasons the matter did not proceed on 7 July but was listed for hearing before me to commence yesterday, 14 July 2025. On that day, Mr Clark indicated that he had an application to adjourn the hearing, and pursuant to leave, he filed and moved on a notice of motion seeking an order that the hearing be vacated. In support of that motion the plaintiff relied on a document which, although entitled affidavit and submissions, is effectively in the form of a statement signed by the plaintiff setting out the bases for the adjournment. That statement was marked exhibit 1.

6. The draft court book which has been prepared by the defendant contains behind tab 3 an extensive affidavit of some 122 pages and 495 paragraphs sworn by Mr Clark on 17 November 2022. In various parts of that affidavit, Mr Clark indicates by reference to the insertion of dollar signs areas where he was uncertain about particular dates, particular names or particular details. Directly relevant to the two arrests upon which the statement of claim turns are paragraphs 214 through to 238 of that affidavit, which comprise about seven and a half pages of the 122-page document. The balance of the affidavit are to be relied on by Mr Clark for context and background in relation to earlier and later dealings he had with the police.

7. Paragraphs 214 to 238, being those directly relevant to the statement of claim, contain very few areas of uncertainty indicated by dollar signs. Where dollar signs appear in those paragraphs in can be gleaned from the surrounding text and context that they indicate uncertainty concerning relatively inconsequential dates and place names. Otherwise, the plaintiff’s affidavit goes into significant detail including about dates and conversations, including in admissible form, said to be relevant to the two arrests. The draft court bundle also contains statements and affidavits that may be relied on by the defendant which refer to those same conversations. The details of conversations referred to in the defendant’s material appear to be in remarkably similar terms to those relied on by the plaintiff. In other words, the plaintiff has, to date, been able to go into significant detail, much of which does not appear to be in dispute, about relevant events relating to the two arrests.

8. The affidavit and submissions document, exhibit 1, refer to the plaintiff preparing a revised version of the affidavit of 17 November 2022. The revised document sits in electronic form on a laptop computer to which he no longer has access because he is currently in custody on remand for criminal charges which are to be heard in the District Court of New South Wales later this year. The plaintiff submits that the revised version of the affidavit contains some significant amendments to the earlier version and it is the revised document that he wishes to rely on at the hearing of the proceedings. The plaintiff also submits that he has draft notes for the cross-examination of defence witnesses, which he no longer has access to because he is in custody.

9. The plaintiff needs to progress these proceedings, which were commenced over 20 years ago, with a significant additional degree of expedition than he has previously shown. However, he is entitled out of fairness to have a reasonable opportunity to access documents that he says are important to his prosecution of the proceedings, and he is entitled to have access to his notes to assist him in presenting his case and cross-examining any defence witnesses. Because of the long and tortuous history of these proceedings, any indulgence in relation to additional time is going to be relatively short.

10. I have made inquiries of the listing office of the Supreme Court to gauge the earliest available 10 day hearing later this year. The registry has indicated that the earliest date is 10 days commencing on Monday 20 October 2025.

11. I propose to make orders vacating the hearing, directing the plaintiff to serve on the defendant and forward to the Commissioner of Corrective Services within 14 days a list of documents and electronic and other material held by Corrective Services which the plaintiff wishes to access to assist him in the preparation for the hearing, recommend that the Commissioner of Corrective Services provide the plaintiff the requested material in paper form by a certain date, direct the plaintiff then to file and serve any further evidence upon which he intends to rely at the hearing, and order the defendant to file and serve any evidence in reply.

Orders

12. Accordingly, I make the following orders:

13. Vacate the hearing that was due to commence 14 July 2025.

14. Direct the plaintiff, by 29 July 2025, to serve on the defendant and to forward to the Commissioner of Corrective Services a list of documents, electronic material, and other material held by Corrective Services which the plaintiff wishes to access in preparation for the hearing.

15. Recommend that the Commissioner of Corrective Services provide the plaintiff the requested material in paper form by 12 August 2025.

16. Direct the plaintiff to file and serve any further evidence upon which he intends to rely at the hearing by 26 August 2025.

17. Direct the defendant to file and serve any evidence in reply by 9 September 2025.

18. Direct the defendant to file and serve a court book containing evidence, pleadings, and any other material to be relied on by the parties at the hearing by 23 September 2025.

19. List the matter for hearing with a 10 day estimate commencing on 20 October 2025.

20. Grant the parties liberty to apply on three days’ notice.

21. The costs of yesterday and today and the costs of the plaintiff’s notice of motion are costs in the cause.

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