Clark v State of New South Wales (No 3)

Category: Principal judgment

Parties: Peter Frederick Clark (Plaintiff)
State of New South Wales (Defendant)

Representation: Counsel:
In Person (Plaintiff)
A N Williams (Defendant)
Solicitors:
Self-represented (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s): 2002/69098

EX TEMPORE JUDGMENT (REVISED)

1. The plaintiff, Peter Frederick Clark, applies by way of handwritten notice of motion dated 9 October 2025 for orders that the hearing due to commence on 20 October 2025 be vacated and for the proceedings to be temporarily stayed pending his release from custody. I accept that the plaintiff prepared the handwritten motion on 9 October 2025, however because he is incarcerated it was not sent by Corrective Services until sometime later. It was not received by my chambers until the evening of Friday 17 October 2025. The document contains a portion headed Notice of Motion and a portion entitled Affidavit in Support.

2. During the hearing of the application, the plaintiff conceded that in reality his application was for an adjournment of the proceedings rather than a temporary stay. Little turns on whether this is an application for a stay or an adjournment, because the terms sought remain the same, namely that the proceedings do not proceed until the plaintiff is released from custody.

3. These proceedings relate to two events which occurred in February 2000 when the plaintiff was arrested which the plaintiff alleges were wrongful arrests and the subsequent prosecutions which the plaintiff alleges were malicious prosecutions. The first arose from events on 21 February 2000 when the plaintiff was arrested and charged by police officers in Taree of seven counts of using a false instrument which was later charged as seven charges of causing a false document to be served contrary to the Unauthorised Documents Act 1922 (NSW). Those charges relate to documents which were served by the plaintiff which are alleged to have been false subpoenas.

4. The second arose from events on 23 February 2000. During an appearance on that day before his Honour Christie DCJ, who was then sitting at the Taree District Court, the plaintiff, who was representing himself, indicated in open court that he had something of a sensitive nature that he wished to raise with the judge. It was then discussed in open court that that matter ought best be raised in the judge’s chambers with the solicitor advocate for the Director of Public Prosecutions (NSW) also in attendance.

5. The evidence refers to a number of people then attending the judge’s chambers, including his Honour, the plaintiff, the solicitor advocate for the DPP, Judge Christie’s associate and a court officer. Whilst in the company of those people, the plaintiff is alleged to have said to Judge Christie that he had been told by a police officer that the judge was corrupt, that he took bribes, and that his wife owned a hotel which was used to launder money for organised crime. At the time those words were said, the plaintiff was self-represented in a matter that was part-heard before his Honour. Arising from that conversation, the plaintiff was arrested and charged on 29 February 2000 by police officers from Taree Police Station with an offence of perverting the course of justice.

6. In March 2001, the plaintiff was convicted in the Local Court on each of the seven counts under the Unauthorised Document**s Act. He appealed those convictions to the District Court and his appeal was successful in part. On appeal some of his convictions were overturned but his appeal was dismissed in respect of the balance of the convictions. I understand from the evidence, that the convictions in relation to which he was unsuccessful in his appeal related to documents purporting to be subpoenas which had been signed by a justice of the peace, not signed by a registrar, and did not carry a seal of the court. In relation to those matters, the plaintiff concedes that those offences in relation to which his appeal was unsuccessful remain recorded as convictions on his criminal history.

7. In relation to the events in Judge Christie’s chambers, following a trial in April 2001 the plaintiff was convicted of doing an act with intent to pervert the course of justice. He subsequently successfully appealed that conviction in the Court of Criminal Appeal, which upheld his appeal on 11 February 2002, quashed the conviction and did not order a retrial: R v Clark [2002] NSWCCA 16. The Court of Criminal Appeal overturned the conviction on the basis that the trial judge’s legal directions erroneously directed the jury that the truth or otherwise of what the plaintiff had said in the company of Judge Christie and others was irrelevant and because the trial judge did not adequately put to the jury the substance of the appellant’s defence.

8. That history is relevant because the present proceedings allege that the arrests in relation to issuing false subpoenas and the conversation with his Honour Judge Christie were wrongful and that the resulting prosecutions were malicious.

9. The proceedings in this Court have an extremely long and tortuous history. The proceedings were initially commenced in the District Court in 1998. In 2001 the proceedings were transferred from the District Court to the Supreme Court. Since then, the plaintiff has on numerous occasions, sometimes successfully and sometimes not, sought leave to amend the statement of claim. All of his pleadings in this Court have pleaded the events relevant to his arrests in February 2000 relating to the false subpoenas and his conversation in Judge Christie’s chambers and the subsequent prosecutions. Since 2001 the plaintiff has applied numerous times for the hearing of these proceedings to be adjourned.

10. In May 2025, the plaintiff applied, unsuccessfully, before Harrison CJ at CL to further amend his statement of claim to plead entirely new causes of action said to arise from other interactions with entirely different police officers alleged to have occurred in 2023 and 2024. The matter was listed before me for hearing to commence on 14 July 2025 with a 10 day estimate. On the first day of the hearing, 14 July 2025, the plaintiff filed a notice of motion seeking an adjournment. The plaintiff then asserted that the adjournment application was made on the basis that he needed access to his laptop computer to obtain an amended version of his evidentiary affidavit and to obtain notes he had made for cross-examination of defence witnesses.

11. On 15 July 2025, I made orders granting the adjournment and vacating the hearing date. I also made directions orders to progress the matter, which amongst other things required the plaintiff to provide to the Commissioner of Corrective Services and serve on the defendant a list of the documents which he required to be printed from his computer, recommended that the Commissioner provide the material requested in the plaintiff’s list and ordered the plaintiff to file and serve any further evidence he intended to rely on by 26 August 2025. I listed the matter for hearing on 20 October 2025 with a 10 day estimate.

12. The matter came back before me on 16 September 2025 at the request of the defendant because the plaintiff had breached the directions orders made on 15 July 2025. The plaintiff had not served or provided a list of documents he required and had not served any further evidence. I directed the plaintiff to file and serve by 23 September 2025 any notice of motion for any application he wished to bring and an affidavit detailing attempts he had made to comply with my previous directions orders. I listed the matter for mention on 24 September 2025.

13. On 24 September 2025 the plaintiff made an oral application for the hearing date to be further adjourned. That application was unsuccessful because I was not persuaded that the plaintiff had made any adequate attempts to comply with previous directions orders and I confirmed the hearing date of 20 October 2025.

14. Whilst these proceedings have been on foot, a period in excess of 23 years, the plaintiff has faced a number of criminal proceedings. Most recently he was charged in January of 2024 with 8 charges of historical child sexual offences; four counts contrary to s 78K of the Crimes Act 1900 (NSW) (homosexual intercourse with a male child over 10 years and under 18 years), three counts contrary to s 78Q(1) (committing an act of gross indecency with a male under 18 years) and one count contrary to s 91G(1)(a) (using a child under 18 years for pornographic purposes). The plaintiff is bail refused in relation to those charges. His trial is listed for hearing in the District Court to commence on 10 August 2026. The plaintiff has applied in the District Court for those criminal proceedings to be permanently stayed, in support of which he has produced a thirty-five page typed written submission (MFI 8). The stay application has not yet been heard in the District Court. During oral submissions, the plaintiff conceded that if convicted of those charges he is likely to face a sentence of full time imprisonment.

15. In addition to the bases for this application referred to in his affidavit, the plaintiff made reference in oral submissions on 22 October 2025 to an additional basis for the orders sought. The primary grounds for his application for a stay or adjournment relate to his inability to access his laptop, his inability to access cross-examination notes, and his inability to access electronic and hard copy documents in order for him to prosecute this claim. The additional basis relied on in oral submissions is that the plaintiff submits that an order was made in these proceedings by Wood CJ at CL in October 2004 for the case proceed by way of jury trial.

16. The defendant opposes the application on the bases that the plaintiff has had more than sufficient time to prepare, there is nothing to indicate that the plaintiff has made any real attempts to comply with previous orders and there is nothing to indicate that the plaintiff’s willingness to progress the matter will improve in the near future. The defendant submits that there is no pending or predictable date for the plaintiff’s release from custody and nothing to establish that he has made any proper effort to prepare for the hearing. The defendant submits that the evidence establishes that the plaintiff is unwilling to progress these proceedings, not that he is unable to do so because of circumstances outside his control. The defendant relies on the fact that the plaintiff has prepared a detailed evidentiary affidavit, which comprises 122 pages, in relation to these proceedings, and submits that the Court could not be satisfied that an adjournment should be granted, because the plaintiff is already in a position to proceed with the case on the basis of the existing material.

17. In relation to the additional basis upon which the orders are sought, Mr Williams, counsel for the defendant, submits that no order for trial by jury has ever been made. Mr Williams made submissions about the legislative basis upon which such an order previously may have been available for proceedings commenced before January 2002, submitting that these proceedings do not fall within the previous provisions allowing for trial by jury for matters of this type, and submitting about the repeal of s 88 of the Supreme Court Act 1970 (NSW) and the insertion of s 85(2)(b) being the relevant requirement for a court to be satisfied that the interests of justice require an order for trial by jury to be made. A review of the Court file indicates that no order for trial by jury was made in these proceedings in October 2004 or at any other time.

18. The requirements of the Civil Procedure Act are clear. The overriding purpose of the Act, and the rules of court, is to facilitate the just, quick, and cheap resolution of the real issues to be decided in proceedings. The Civil Procedure Act also imposes an obligation, described as a duty, on parties to civil proceedings, including parties such as Mr Clark who appear unrepresented and appear for themselves. That duty is to assist the court to further the overriding purpose to facilitate the just, quick, and cheap resolution of the real issues in proceedings. In furtherance of that overriding purpose the Civil Procedure Act requires the court to have regard to the just determination of proceedings, the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings.

19. Section 58 of the Civil Procedure Act requires a court, in deciding whether to grant an adjournment or a stay, to consider the dictates of justice. The dictates of justice include that the Court must have regard to the difficulty or complexity of the issues, the degree of expedition which the respective parties have shown in proceeding with the case, the degree to which any lack of expedition has arisen through circumstances beyond the control of the parties, whether the parties have acted in accordance with their duty to facilitate the effective, just and quick disposition of proceedings, the opportunity that any party has made of orders and steps to get ready for the hearing, the degree of any injustice that would be suffered and any other matters that are considered relevant.

20. Considering the power to order an adjournment under s 66 of the Civil Procedure Act, the Court has a wide and ample power to adjourn the hearing of any matter. The principal consideration is to do justice between the parties.

21. There are numerous authorities for that proposition, including the City of Sydney Council v Satara [2007] NSWCA 148 at [17]. Here the plaintiff largely relies on difficulties arising from him being self-represented and being in custody. The Court is very conscious of the difficulties that self-represented plaintiffs such as Mr Clark face, particularly when they are being held on remand awaiting trial for serious criminal offences. The status of a self-represented litigant is something that I take into account.

22. However, there comes a point at which a self-represented litigant must be required to take responsibility for his choices. Consistent with the principles set out in the Civil Procedure Act, this hearing cannot be permitted to continue to be subject to adjournments, stay applications and delay. The interests of justice require the Court to do justice between all parties, including the defendant, and its witnesses, particularly the Police officers named in the pleadings as involved in the arrests in February 2000, Detective Muxlow and Detective Metcalfe.

23. The plaintiff’s delay in pursuing these proceedings has a direct impact on the defendant, legal costs, administrative costs and inconvenience to the administration of justice through use of the Court’s limited resources. In addition, the pleaded allegations are serious allegations of misconduct by Detectives Metcalfe and Muxlow. Each of those officers have prepared witness statements in these proceedings and are entitled for the hearing to proceed in as efficient manner as can now be possible so that they may have an opportunity for the issues to be resolved.

24. The absence of legal representation on one side ought not induce a court to deprive the other side of its lawful entitlement. An unrepresented party is as much the subject of the rules of court as any other litigant: Duraisamy v Sydney Trains [2019] NSWCA 269 at [25]. The Court, even when a litigant is self-represented, must see that the rules of court are obeyed, subject to any proper exceptions.

25. As indicated, these proceedings have a long and tortuous procedural history. The plaintiff has been granted multiple adjournments. He has had multiple opportunities afforded to him by this Court, including orders made by me this year and by other judges in previous years. That tortuous procedural history, case management considerations and considerations of fairness to both parties favour against granting the adjournment or stay sought.

26. For those reasons, I make the following orders:

27. the plaintiff’s notice of motion dated 9 October 2025 and received by email on the evening of 17 October 2025 is dismissed; and

28. the plaintiff to pay the defendant’s costs of that motion thrown away.

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