Clark v State of New South Wales (No 4)

Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Uniform Civil Procedure Rules 2005 (NSW), Pt 12 r 12.7(1)

Cases Cited: Birkett v James [1978] AC 297
Bishopsgate Insurance Australia Ltd (in liquidation) v Deloitte Haskins & Sells [1999] 3 VR 863
Clark v Robards [2010] NSWSC 522
Duraisamy v Sydney Trains [2019] NSWCA 269
Stollznow v Calvert [1980] 2 NSWLR 749

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): 2002/00069098

EX TEMPORE JUDGMENT (REVISED)

1. The defendant applies for these proceedings to be dismissed for want of due despatch in accordance with Pt 12 r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

2. In September 1998 the plaintiff commenced proceedings in the District Court alleging, amongst other things, that he had been maliciously prosecuted in relation to an aggravated indecent assault. Those proceedings were transferred from the District Court to the Supreme Court in May 2001.

3. The plaintiff filed a statement of claim in this Court in May 2001 seeking damages for false imprisonment, false arrest, malicious prosecution and abuse of process in relation to numerous arrests and prosecutions. Although amended and repleaded at various times since May 2001, the plaintiff’s pleadings in this Court have consistently alleged, amongst other things, false arrest and malicious prosecution arising from two events in February 2000. The first of those events relates to the plaintiff being arrested and charged by police officers, Detective Senior Constables (DSC) Muxlow and Metcalf, on 21 February 2000 with seven counts relating to allegedly false subpoena documents. The second relates to events on 23 February 2000 when the plaintiff, who was appearing as a self-represented litigant before his Honour Judge Christie of the District Court, requested that he speak to the judge privately to raise a sensitive matter. In the company of his Honour Judge Christie, the judge’s associate, the solicitor advocate for the Crown and a sheriff’s court officer, the plaintiff told the judge that he had been informed by the police that the judge was corrupt, that he accepted bribes and that his wife used hotels to launder money for organised crime. The events that occurred in the District Court Judge’s chambers resulted in the plaintiff being arrested and charged by police officers, DSC Muxlow and DSC Metcalf, on 29 February 2000 with a charge of perverting the course of justice.

4. These proceedings have been adjourned on the application of the plaintiff on numerous occasions since the transfer of the proceedings from the District Court in 2001.

5. By the time the plaintiff filed a further amended statement of claim on 24 July 2020, the pleading related only to the allegations of false arrest and malicious prosecution arising from the two events in February 2000. Previous allegations of false arrest, malicious prosecution and abuse of process in relation to other arrests and prosecutions had, by the time of that filing, either been abandoned or struck out.

6. On 8 August 2024 his Honour Chen J listed the matter for hearing to commence on 7 July 2025 with a 10 day estimate and directed the defendant to prepare and serve on the plaintiff a draft court book containing the pleadings, particulars, evidentiary statements and affidavits to be relied on by both sides. In compliance with that direction the defendant compiled the draft court book containing, amongst other things, the plaintiff’s pleadings and an affidavit sworn by the plaintiff on 17 November 2022. That affidavit comprises 495 paragraphs over 122 pages and attaches numerous annexures. It includes, between paragraphs 192 and 238, a detailed account relating to the subpoenas issued by the plaintiff which gave rise to the first prosecution and a detailed account of events relevant to the conversation with his Honour Judge Christie which gave rise to the second prosecution. The plaintiff’s 17 November 2022 affidavit frequently refers to the plaintiff’s ability to set out verbatim references to historical conversations stating that he used a micro cassette recorder to covertly record conversations. As a result, his detailed accounts of the relevant events frequently include references to dates and times and allegedly verbatim content of relevant conversations.

7. The draft court book also includes a further amended statement of claim filed on 24 July 2020, the defence to the further amended statement of claim filed on 24 May 2021, evidentiary statements from Detective Senior Constable Metcalf and Detective Senior Constable Muxlow and the contents of the briefs of evidence relevant to each arrest and prosecution. In total the draft court book compiled by the defendant in compliance with Justice Chen’s direction comprises 328 paginated documents.

8. The pleadings establish that the issues now in dispute in these proceedings are of relatively narrow compass. The defendant admits the relevant arrests and prosecutions, but denies that they were malicious or instituted or continued in the absence of any credible information. The defendant denies that each prosecution was continued without reasonable or probable cause and pleads that each arresting officer suspected with reasonable cause that the plaintiff had committed the offences with which he was charged. The defendant also denies that the criminal processes were being used in an abuse of process and denies the plaintiff is entitled to any damages.

9. For logistical reasons not attributable to the parties the hearing was unable to commence on 7 July 2025, but was instead listed for hearing to commence before me on 14 July 2025. On that day the plaintiff brought an application to adjourn the hearing and submitted that he was unable to proceed because he needed access to his laptop computer to obtain an updated version of his 122 page affidavit and access to his laptop or other electronic storage devices to access notes to assist in cross-examining police witnesses. On that basis I made orders on 15 July 2025 vacating the hearing date, directing the plaintiff to serve on the defendant and forward to the Commissioner of Corrective Services a list of the documents he required to be printed from his laptop and storage devices and ordered the plaintiff to file and serve any additional evidence by 26 August 2025.

10. At the request of the defendant, the matter was relisted on 16 September 2025 at which time the defendant submitted that the plaintiff had breached my previous directions orders in that he had failed to serve a list of the documents he required and failed to serve any additional evidence that he intended to rely upon. I then gave the plaintiff a further opportunity by ordering that he file any notice of motion for any application he was to make by 23 September 2025, and directed him to file and serve an affidavit by 23 September 2025 detailing previous attempts made to comply with my past directions orders.

11. The matter then came back before me on 24 September 2025 at which time the plaintiff produced documents, the effect of which established that he had not listed the documents he required but instead had in effect asked Corrective Services to provide him with everything on his laptop and electronic storage devices. On that occasion, the plaintiff made an oral application for the hearing date to be vacated. He submitted that without full access to his laptop he had been unable to prepare any further evidence as required by the 15 July 2025 orders.

12. I dismissed the plaintiff’s application for the hearing date to be vacated and confirmed that the hearing would proceed for 10 days commencing on 20 October 2025. On that occasion I suggested that Mr Clark should assume that he may not be reunited with his laptop whilst in custody but could instead use the time leading up to the hearing, if he wished, to rework his 17 November 2022 affidavit to incorporate any additional content he wanted to add and to prepare fresh notes for cross examination of the defence witnesses.

13. On the evening of Friday, 17 October 2025 my chambers received an email sent on behalf the plaintiff attaching a handwritten document from him dated 9 October 2025. That document contained a notice of motion seeking orders that the hearing date on 20 October 2025 be vacated and seeking that the proceedings be temporarily stayed until his release from custody. The handwritten document also contained what was said to be an affidavit in support of that motion.

14. On 20 October 2025 and during the course of the morning of 21 October 2025 the plaintiff and the defendant made submissions in relation to the application to vacate the trial and for a temporary stay. Prior to lunch on 21 October 2025, I made orders dismissing the motion and ordering the plaintiff to pay the defendant’s costs of the motion. Following pronouncing those orders the plaintiff was called on to proceed with the hearing and it was suggested to him that he should proceed to make an opening submission and tender evidence in support of the further amended statement of claim. When called upon, the plaintiff said that he did not have any evidence to adduce because he needed access to his laptop and electronic storage devices. After being invited, a number of times, to consider tendering documents contained in the draft court book, including the plaintiff’s 17 November 2022 affidavit, the plaintiff declined those invitations, stating that he considered that the affidavit was incomplete. Accordingly, the plaintiff failed to produce any evidence on the hearing of these proceedings.

15. Counsel for the defendant then submitted that, in light of the plaintiff’s failure to adduce any evidence, the Court should dismiss the proceedings for want of due despatch in accordance with Pt 12 r 12.7(1) of the UCPR. The plaintiff submitted that such an order should not be made because his inability to prosecute the proceedings arose from circumstances he says are beyond his control. During submissions the plaintiff conceded that he had access in custody to computers provided by Corrective Services and that he had used those computers to prepare previous written submissions and affidavits.

16. I accept that courts are to make allowances for a self-represented litigant such as the plaintiff. However, the plaintiff has had numerous such allowances and liberties provided to him in this litigation for more than 21 years. As was said by the Court of Appeal in Duraisamy v Sydney T**rains [2019] NSWCA 269 at [25] the absence of legal representation on one side ought not induce a court to deprive the other side of its lawful entitlements; an unrepresented party is as much subject to the rules of court as any other litigant. The plaintiff is subject to the same duties and obligations imposed on other litigants and is as bound by the rules of court as is any other litigant, subject to any proper exceptions.

17. In exercising any power to dismiss proceedings under Pt 12 r 12.7 the court is to take into account the overriding purpose of the Civil Procedure Act 2005 (NSW) set out in s 56 namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The objects of case management and the overriding purpose of the Civil Procedure Act are also matters that the court must take into account. They require consideration of the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources and the timely disposal proceedings at a cost affordable by the respective parties.

18. Rule 12.7 provides that a court may order the proceedings be dismissed if a plaintiff does not prosecute the proceedings with due despatch. The power to dismiss an action for want of prosecution is not confined by rigid guidelines. Rather, particularly when considering the issue of delay, it is a relative concept and the significance of any delay must depend on the particular circumstances of the case involved: Bishopsgate Insurance Australia Ltd (in liquidation) v Deloitte Haskins & S**ells [1999] 3 VR 863. It has often been held that the power to dismiss for want of prosecution based on a plaintiff’s default or delay requires the court to find there has been an inordinate and inexcusable delay giving rise either to a substantial risk that a fair trial would not be possible or risk of serious prejudice to the defendant: Birkett v James [1978] AC 297 at 318. However, that English authority has been rejected as unduly restricting the true scope of the power to strike out for want of prosecution: Stollznow v Calvert [1980] 2 NSWLR 749.

19. The essential criterion for the exercise of this power is whether or not, in all the circumstances, justice requires that the proceedings should be dismissed. That criterion commonly involves striking a balance between the plaintiff and the defendant. In considering that balancing exercise there are a number of relevant factors to be taken into account including prejudice to the party complaining about lack of progress, prejudice to the party responsible for the lack of progress, whether a plaintiff has shown a genuine intention to bring proceedings to hearing, the desirability of first warning a plaintiff about the prospect of a dismissal application and the effect on a plaintiff of dismissing an action for want of prosecution.

20. Taking all of those considerations into account, I am satisfied based on the extraordinary circumstances of this case that, in all the circumstances, justice requires the proceedings should be dismissed for want of prosecution and the defendant’s application should succeed. This case has a protracted, tortuous history which does not disclose anything in the nature of sufficient progress on the plaintiff’s behalf. The plaintiff has instead shown a history of repeated applications for adjournments and a preference for delay. Accepting that his capacity to prepare to pursue this claim has, to some extent, been hampered by his incarceration, he nevertheless has on many occasions represented himself eloquently in court, he has had access to Corrective Services computers, has had more than sufficient time to prepare and has demonstrated a prolific ability to author written work including detailed and lengthy written submissions and affidavits, many of which have been typed and some of which have been handwritten. Of particular relevance was his ability to produce the 17 November 2022 affidavit which goes into extraordinary detail about historical and contextual matters and in relation to events directly relevant to the two arrests and prosecutions.

21. The defendant has consistently, and fairly, recognised difficulties the plaintiff has faced and has on numerous occasions in the past accommodated his requests for adjournments and for other liberties. However, as can be understood from the application for dismissal, the defendant’s patience has run out. The defendant submits that the matter should either be progressed by the plaintiff tendering evidence in support of the proceedings or dismissed for want of prosecution.

22. The extraordinary delay in the present proceedings, even giving the plaintiff credit for the difficulties he no doubt experiences now he is in custody, must be considered in light of the very serious allegations directed at officers DSC Metcalf and DSC Muxlow. The serious allegations against those two officers were raised by the plaintiff’s amended pleadings shortly after the transfer from the District Court. Each of the police officers involved, have been the subject of the allegations in the amended pleadings, and the stressful impact the litigation no doubt has had, for an extensive period of time. Each of them might have reasonably expected that the resolution of these allegations would take significantly less than 21 years.

23. The time has come for the matter to progress. When the adjournment and stay application was disallowed earlier this morning, the plaintiff then failed to progress the matter by tendering any evidence in support of his claim. Despite being called upon to tender evidence, he has refused to tender any document including his 122 page affidavit of 17 November 2022 and has indicated an unwillingness to progress the proceedings.

24. In those circumstances, taking into account the matters I am required to take into account under the rules of court and the Civil Procedure Act, I am satisfied that the balancing exercise required by r 12.7 weighs heavily in favour of dismissing these proceedings on the basis the plaintiff has not prosecuted the proceedings with due despatch.

25. I am also satisfied that by virtue of the plaintiff’s dilatory conduct, the defendant has been put to the expense of defending these proceedings and that costs should follow that event.

26. Accordingly, I make the following orders:

27. the proceedings are dismissed; and

28. the plaintiff is to pay the defendant’s costs of the proceedings on the usual basis.

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