Clark v State of New South Wales; Clark v Robards & Ors

The 2005 proceedings 9The 2005 proceedings were brought against Timothy and Terrence Robards and the State of New South Wales, again on the basis of its vicarious liability for the tortious acts of police officers. In June 2010 the matter came before Harrison J on an application by the State to dismiss the claim or to strike out the statement of claim as it was then pleaded. His Honour struck out that statement of claim but gave Mr Clark leave to replead it: Clark v Robards [2010] NSWSC 522. 10In his judgment, at [10]-[22], his Honour sketched some of the history of those proceedings. The pleading his Honour was called upon to consider was the second further amended statement of claim, a lengthy document which he described as "confronting." The first two defendants, Timothy and Terrance Robards, have taken no part in the proceedings since an early stage. 11The case against the State contained what his Honour described as "very serious allegations of misconduct by certain police officers including conspiracy, destruction and concealment of evidence, intimidation, soliciting bribes, malicious prosecution, wrongful arrest, false imprisonment, perjury, suborning witnesses, perverting the course of justice and defamation." His Honour noted that those allegations were "not properly pleaded or particularised": [6]. As to the claim in defamation, his Honour found that the pleading was bad on its face, adding that there was "no possibility of the facts pleaded giving rise to a good cause of action." That claim was dismissed: [32]. 12This statement of claim also added allegations in negligence against Justice Health, the Department of Justice and Attorney General, the Commissioner for Corrective Services and the Department of Corrective Services, these claims being made against the State under the Crown Proceedings Act and the Law Reform (Vicarious Liability) Act. 13The case against Justice Health appeared to allege the maladministration of drugs to Mr Clark while he was in custody, his Honour noting that these allegations were also not properly pleaded or particularised: [7]. The case against the Attorney General's Department and the Department of Corrective Services alleged that, as a result of inadequate accommodation or protection while in custody, Mr Clark was the victim of a serious assault. It also alleged that he was refused access to computers and other facilities which he needed to prepare documentation for his various court proceedings, including an appeal to the Court of Criminal Appeal, in disregard of recommendations by judges of this court, including Harrison J himself: [8]. 14His Honour expressed concern that some of the facts and circumstances upon which Mr Clark relied might be "in whole or in part a replication" of events the subject of the 2002 proceedings which Johnson J had dismissed: [33]-[36]. (At this stage the appeal against Johnson J's decision had been instituted but was yet to be heard.) Before ordering that the second further amended statement of claim be struck out but granting leave to replead, his Honour expressed himself to be "not at all confident that the plaintiff will ever produce a properly pleaded statement of claim...". He added that Mr Clark "must understand and appreciate that there is a prospect that a time may arrive when no further opportunity to do so will be extended to him": [45]. 15In a supplementary judgment of 2 July 2010, having been informed of Mr Clark's appeal against Johnson J's decision, his Honour stayed the proceedings until further order of the court. He directed that Mr Clark take no further step in them unless and until he served upon the State "any further version of the current statement of claim upon which he relies which complies with the rules of court and which pleads no fact or matter that was a fact or matter pleaded by him or relied upon in the proceedings decided by Johnson J in 2006." He granted liberty to the State to apply in relation to any statement of claim so served. 16His Honour also noted the concern expressed by counsel for the State about the delay in the proceedings, "particularly in circumstances where with the passage of time witnesses upon whose evidence the third defendant may wish to rely may die, become untraceable, or their memories may fade."

The present motions 17By a notice of motion filed on 10 December 2012, Mr Clark sought leave to amend his pleading in both the 2002 and 2005 proceedings in one "consolidated" statement of claim. When the matter came before me in May 2013, I gave him leave to file in court an amended notice of motion which, in addition to seeking leave to file the amended pleading, seeks a number of orders against the Attorney General and the Commissioner for Corrective Services concerning the conditions of his custody and his access to facilities to enable him to pursue the various proceedings in which he is currently involved. All the orders in this latest notice of motion are opposed. 18For its part, the State has filed a motion in each of the 2002 and 2005 proceedings seeking orders that they be dismissed or that the relevant statement of claim be struck out. At the hearing Mr Clark was unrepresented and the State was represented by Mr Adrian Williams of counsel. It was agreed that I should determine the fate of the proceedings before dealing with Mr Clark's application about the conditions of his custody and his access to facilities. I shall first consider Mr Clark's application to amend.

Amendment 19The proposed amended statement of claim maintains Timothy and Terrence Robards as the first and second defendants, and the State as the third defendant. It is in two sections, Part A, which includes the allegations against the police, and Part B, containing the allegations against the Departments of the Attorney General and Corrective Services, and Justice Health. 20I shall refer to the proposed amended statement of claim as the "proposed pleading." It will be necessary to refer to the statements of claim considered by Johnson J and the Court of Appeal in the 2002 proceedings, and by Harrison J in the 2005 proceedings. In the 2002 proceedings that was a further amended statement of claim filed on 23 April 2004, when Mr Clark was at liberty and was legally represented, to which I shall refer as the "2002 pleading." In the 2005 proceedings, as I have said, it was the second further amended statement of claim, filed on 13 April 2010, when Mr Clark was in custody and unrepresented, to which I shall refer as the "2005 pleading." 21Pars 1-26 of Part A of the proposed pleading deal with claims in trespass and conspiracy against the first defendant, Timothy Robards. Pars 27-33 deal with a claim in trespass against the second defendant, Terrence Robards. These paragraphs reproduce, and expand upon, pars 1-29 of the 2005 pleading. As I have said, the Robards have not taken part in these proceedings for some time, and they are not parties to the present motions. However, it is appropriate to refer briefly to the claims against them. 22Put shortly, each of them is alleged to have assaulted Mr Clark, and Timothy Robards is alleged to have been a party to a conspiracy involving a number of people to fabricate complaints of sexual offences by Mr Clark. Those complaints provide the background to the allegations against police which Mr Clark pleads in his case against the State. 23The pleading of the case against the State in respect of the actions of police officers begins at par 34 of Part A. Pars 34-36 are of a formal nature. Par 35 names 11 police officers (not including the officer alleged to have solicited the bribe) for whose conduct the State is said to be vicariously liable. It also extends the claim to "other Police Officers", who are unnamed. It is necessary to refer briefly to the claims made in Part A, noting Mr Williams' criticism of the pleading of them.

Part A (Police) 24Pars 37-42 allege trespass in April 1999 by 4 police officers arising from their visit to the home where Mr Clark then lived. They are alleged to have stolen copies of statements relevant to prosecutions outstanding against him and to have deleted evidence from his computer. This appears to relate, at least in part, to the first claim in the 2002 proceedings which was dismissed. It is an amplified description of an incident which was referred to in par 53 of the 2005 pleading, where it appeared as a particular of a broader cause of action, not a cause of action of itself. 25Mr Williams pointed out that this cause of action, standing alone, would be statute barred. He argued that it would not come within s 65(2)(c) of the Civil Procedure Act 2005 as a new cause of action arising from the same (or substantially the same) facts as those giving rise to a cause of action already pleaded, so as to have effect from the date of commencement of the 2005 proceedings: subs (3). Generally, he argued that the nature of the trespass alleged is not clear, adding that the pleading raises new matters and that "the precise nature of what is pleaded is so ambiguous as to be unfair." 26Pars 43-47 assert the facts which were the foundation of the second claim in the 2002 pleading, to be found at pars 13-20 of that pleading, arising from the withdrawal and dismissal of a number of charges of using a false instrument for which he had been arrested in 2000. However, whereas the 2002 pleading relied on causes of action in false arrest, false imprisonment and malicious prosecution, in the proposed pleading the cause of action is simply trespass. Again, the nature of the trespass alleged is not specified. 27What is alleged is that the arresting police had "collateral and/or improper purposes", being to prevent Mr Clark from proceeding with his appeal against a conviction for goods in custody, to prevent his son from appealing from his convictions of certain offences and to call evidence in that appeal, concealing evidence exculpatory of him and his son, and perverting the course of justice: par 46. This claim was better expressed in the 2002 pleading. 28Pars 48-54 set out the facts giving rise to the third claim in the 2002 pleading, set out at pars 21-34 of that pleading, arising from Mr Clark's prosecution for perverting the course of justice. Here again, in lieu of the causes of action of false arrest, false imprisonment and malicious prosecution originally pleaded, the proposed pleading is in trespass only. The same police officers are alleged to have detained him at a police station for 2 to 3 hours, during which time they seized exculpatory documents relating to his defence of the goods in custody charge. This claim also was better expressed in the 2002 pleading. 29Pars 55-71 allege that in January 2005 several police attended Mr Clark's home, executed a search warrant, arrested him and charged him with several sexual offences, together with assaulting a police officer in the execution of his duty and goods in custody. He was subsequently acquitted of the assault police and goods in custody charges, but was found guilty at trial in the District Court of the sexual offences. An appeal against those convictions and the sentences imposed was only partly successful. This, I take it, is a reference to Clark v R [2008] NSWCCA 122, 185 A Crim R 1. 30The pleading of this cause of action suggests, without squarely asserting, that the purpose of the search of Mr Clark's home was to find copies of the recording of the request for a bribe the subject of the dismissed claim in the 2002 pleading. It also asserts that the convictions were obtained "by fraud and deception" in various ways particularised in pars 65-70, although some of these allegations do not appear to be related to the particular prosecution complained of. 31The trespass alleged here appears to be the whole of the conduct of the police complained of, that is, the attendance at Mr Clark's home, the execution of the search warrant, his arrest and charging, and the fraud and deception by which the convictions are said to have been secured. The pleading reproduces, with some amplification, pars 33-38 of the 2005 pleading, where the cause of action specified was also trespass. 32Pars 72-77, under the heading "TRESPASS: 30 June 2006", allege that a police officer enticed a man who was facing a murder trial to make a statement falsely claiming that Mr Clark had sexually assaulted him. That man did so but subsequently recanted the allegations. This had been referred to briefly in the 2005 pleading as a particular of police misconduct relating to a different cause of action. How the conduct alleged is said to amount to a trespass is unclear. Here again, as a new cause of action a limitation question arises and it is not apparent how the facts alleged relate to a cause of action previously pleaded, so as to engage s 65(2)(c) of the Civil Procedure Act. 33The remaining claims in Part A of the proposed pleading are also founded upon a cause of action in trespass. In none of them is the nature of the trespass identified and, indeed, with one possible exception, in none of them do the facts alleged suggest what it might be. 34Pars 78-80 allege that in August 2006 another police officer enticed another man to make a statement alleging sexual misconduct by Mr Clark. It is further alleged that that police officer did so "to discredit, victimise and intimidate" Mr Clark in retaliation for his having named that officer "and/or his colleagues" as defendants in an earlier statement of claim. This appears to be a new claim, there being no reference to these allegations at all in the 2005 pleading. 35The next two claims are to a similar effect, alleging that police officers enticed men to make statements falsely claiming sexual offences by Mr Clark, as well as concealing exculpatory evidence, so as to discredit him. Pars 81-86, alleging trespass on 7 November 2006, are an expansion of pars 39-41 of the 2005 pleading. Pars 87-90, a claim for trespass on 23 November 2006, allege facts not previously pleaded and amount to a new claim. 36Pars 91-94 allege that on 26 November 2006, when Mr Clark attended court for one of the prosecutions against him, police officers searched him and removed certain material for his defence from his suitcase. This appears to relate to the prosecution to which I have referred at [29] above. However, this particular allegation has not been made before and also appears to be a new claim. The facts might suggest a trespass to goods, but the pleading of the cause of action is unclear. 37Pars 95-98 recite no more than that in August 2007 Mr Clark was charged with a number of sexual offences alleged to have been committed against two youths, and that subsequently in the Local Court the prosecution offered no evidence in relation to those charges and they were dismissed. These facts had been asserted in almost identical terms at pars 42-44 of the 2005 pleading. In these paragraphs there is no allegation of impropriety on the part of any police officer. 38Pars 99-103 are yet another allegation of a police officer enticing a person to make a statement falsely implicating Mr Clark in sexual offences. This is said to have occurred in October 2007 and, again, it is alleged that the police officer did so to discredit Mr Clark. No further facts are pleaded and this also appears to be a new claim, no such allegation having been made in the 2005 pleading. 39Pars 104-107 allege that in August 2008 police charged Mr Clark with some sexual offences said to have been committed against a young woman, that in the District Court those charges were not proceeded with, and that detectives concealed a covert video recording which would have exculpated Mr Clark. This had been pleaded at par 45 of the 2005 pleading, albeit in such a way as to make no allegation of impropriety against police at all. 40Pars 108-111 assert that in December 2008 police charged Mr Clark with perverting the course of justice, arising from his destruction of the tape recording of the bribe offer the subject of the dismissed claim in the 2002 proceedings. It is alleged that they did so in retaliation for his having named those officers in previous statements of claim, and while they had in their possession copies of that recording. This had been the subject of a brief reference in par 46 of the 2005 pleading. 41Although this claim is founded upon a prosecution different from that upon which the first claim in the 2002 proceedings was based, it raises the very matter which led to that claim being dismissed. It is clearly in breach of the direction of the Court of Appeal, as it is the direction of Harrison J, referred to at [15] above, that any amended statement of claim should not plead any fact or matter that was pleaded in the proceedings dismissed by Johnson J. 42Pars 112-116 expand upon a matter referred to, again briefly, at par 47 of the 2005 pleading. Mr Clark alleges that in April 2009 he was arrested, again in respect of an allegation of perverting the course of justice. He was denied the opportunity to participate in an electronically recorded interview, so as to "put his side of the story onto the record", and the arresting detective refused to take from him "exculpatory documents" and to follow up his defence. In this the detective was said to have "wilfully denied" him "his basic and fundamental rights to put his side of the story onto the record." It is also asserted he was held in police custody for 6 or more hours until he was granted conditional bail. Although this claim is also headed "Trespass," it is difficult to see how this conduct could be found to be tortious on this or any other basis. 43The final claim in Part A is to be found in pars 117-127. It reproduces, with some alterations and additions, pars 48-75 of the 2005 pleading. This relates to Mr Clark's trial in the District Court in May 2009 on a number of charges of a sexual nature, together with several charges of perverting the course of justice. Par 117 sets out the indictment, containing 29 counts. It also reveals that he was found guilty of most of them. He was found not guilty of 6 of them, 1 of those by direction. It should be noted that his appeal against the convictions is yet to be heard. 44In the ensuing paragraphs Mr Clark alleges that the convictions were obtained "by fraud and deception", that the police knew or ought to have known that he was being set up by the complainants "for reward and/or vengeance", that the police concealed exculpatory evidence from the parties, and that they encouraged the complainants to lie in their police statements and to give false evidence: pars 118-9. Significantly, he alleges that the "catalyst" for this conduct was his refusal to accept the offer of a bribe the subject of the dismissed claim in the 2002 proceedings, resulting in retaliation against him "in a vicious and vexatious campaign of intimidation, conspiracy and abuse of process": pars 120-4. 45Pars 124-7 provide some particulars of the alleged manipulation of witnesses by police and complain of other improper conduct on their part. Par 126.10 alleges that "the maintenance and continued prosecutions" of Mr Clark were made "to justify the unlawful and improper conduct" of the police officer alleged to have offered the bribe. Par 127.14 asserts that Mr Clark was charged "by virtue that he had filed a statement of claim" against that police officer. 46Although this claim is also made under the heading "Trespass", par 128 adds that the State is also sued for malicious prosecution (expressed to be subject to Mr Clark's appeal being successful), abuse of process and false imprisonment. To this list is added, perhaps facetiously, "torts as deemed by this Honourable Court!" The cause of action in malicious prosecution faces the obvious difficulty that, as matters stand, he has been and remains convicted of the lion's share of the charges against him. 47It is apparent that this claim relates to a number of earlier claims in which police are alleged to have enticed persons to make false statements and to have sought to suppress material said to have been exculpatory of Mr Clark. Indeed, par 117 recites that he was arraigned in the District Court on "a compilation of the matters referred to above" (with one stated exception). Importantly, it is apparent that he continues to forge a link between this alleged misconduct by police and the bribery allegation the subject of the dismissed claim, just as he had before Johnson J. 48The claim for damages in Part A, including for aggravated and exemplary damages, is dealt with in pars 129-141. Mr Williams did not address those paragraphs in submissions, except to note that one of the bases for aggravated damages is, yet again, the assertion that the convictions were obtained by fraud and deception because Mr Clark "had taken on" the police officer who sought the bribe: par 136.2.

Part B 49The heading of Part B refers to "Department of Justice, Attorney General, Attorney General's Department of New South Wales, Commissioner of Corrective Services, Department of Corrective Services of New South Wales." However, pars 1-3 assert the State's liability in respect of the acts or omissions of the Commissioner of Corrective Services and/or officers or employees of Corrective Services New South Wales, and most of this Part is directed to the conduct of Corrective Services officers. I shall briefly summarise the claims in this Part also.

Corrective Services 50Pars 4-24 appear to be a claim in negligence, and are an expanded version of a claim to be found in pars 122-131 of the 2005 pleading. They assert that in November 2007 Mr Clark, while at the Metropolitan Remand and Reception Centre (MRRC), was seriously assaulted by another inmate with a large metal fire hose nozzle. He alleges that the assault was arranged by another inmate from whom he was in danger, a fact which he had communicated to senior officers. As a result, he was transferred to a different block but it was there that he was attacked. 51The 2005 pleading had alleged in general terms that officers of the MRRC had failed in their duty to protect him. However, the negligence now particularised is that the nozzle was kept in a "room-compartment" which should have been locked at all times to prevent inmates from accessing it, that the door was left unlocked, allowing the inmate in question to secure the weapon, and that the "Commissioner and/or Correctional Officers had a clear duty of care" to see that inmates did not have access to anything that could be used as a weapon on another inmate or officer. Mr Williams fairly pointed out that the duty of care could not extend that far, as it would suggest that prisoners would need to be kept without access to any movable goods. 52Pars 25-31 allege that on 6 December 2007 Mr Clark was assaulted by an officer when he requested to view his legal files which were held in storage at the MRRC. He alleges that the officer struck him on the forearm with "an unknown weapon", causing a gash which bled profusely. This claim has not been made before, even though the incident occurred well before April 2010, when the 2005 pleading was filed. It would appear to fall foul of the 3 year limitation period in respect of actions for personal injury, and Mr Clark would not have the benefit of s 65(2) of the Civil Procedure Act. 53Pars 32-40 allege "assault and intimidation" by that same officer on 7 or 8 December 2007. It is said that the officer entered Mr Clark's cell, approached him in a threatening manner and forced him to retreat to the back wall of the cell, the officer "advancing whilst making threats." What these threats were is not specified. Two other officers entered the cell and called upon their colleague to "back off", which he did. As he left the cell he said to Mr Clark in a "loud and intimidating" voice, "You have a daughter ... living at Taree." The emphasis, it is said, was on the word "living." 54Mr Williams argued that no clear tort was identified in those paragraphs, querying whether they allege the tort of intimidation, assault or misfeasance in public office. This is also a new claim, as are the remaining claims in Part B relating to Corrective Services officers. 55Pars 41-53 are headed "Trespass (Extortion?) by a Correctional Officer". This claim relates to an officer who each morning received written requests from inmates in the wing where Mr Clark was held. Put shortly, Mr Clark alleges that this officer on one occasion told him that he could arrange daily computer access for "a price", and that on another occasion he offered all the computer access Mr Clark wanted for $1,000. This offer was not taken up. These events are alleged to have occurred in late 2007 or early 2008. Mr Williams pointed out that not only is this a new claim, but it is questionable whether any cause of action arises from the facts pleaded. 56Pars 54-57 are headed "NEGLIGENCE - Computer Access". They allege that between 2007 and 2012 Mr Clark has been denied "reasonable and safe access to a computer" by Corrective Services officers. He adds that he was "also lied to" by senior officers about computer facilities and access to them at the MRRC. Par 57 asserts that, in addition to the tort of negligence, Mr Clark alleges "abuse of process and/or tortious interference" by some officers in that they deliberately obstructed him from pursuing his claims against the State. 57Again, although reference is made to negligence and abuse of process, it is unclear what tort is alleged on the facts pleaded. If it is some kind of abuse of process, the pleading of it is clearly inadequate. 58Pars 58-65 are headed "TRESPASS: Tortious Interference with the Plaintiff's Witnesses and the Plaintiff." They apparently relate to the present proceedings, and allege certain conduct in November 2012 by Corrective Services officers towards Mr Clark himself and to certain persons whom he required as witnesses. The proposed witnesses comprised two officers and three inmates. Mr Clark alleges that other officers came to his cell demanding to know why one of those officers was to give evidence, and approached two of the inmates demanding to know why they also were to be witnesses. It is also asserted that one of the inmate witnesses was falsely charged with intimidating an officer. This conduct is alleged to have been designed to "intimidate" the witnesses and Mr Clark himself, and to "pervert the course of justice." 59The remaining three claims against Corrective Services, all of them new, are headed simply "Trespass." Pars 66-70 are somewhat obscure. They appear to allege that, also in November 2012, Corrective Services officers set up Mr Clark to be charged with "a gaol offence" by having another prisoner approach him in relation to that prisoner's outstanding charge in circumstances where, because of their placement within different prisoner groups, contact between them would have amounted to an offence. The pleading does not disclose whether Mr Clark was dealt with for such an offence. 60Pars 71-87 relate to Mr Clark's being dealt with for a disciplinary offence, apparently arising from what was said to be his unauthorised use of his computer to prepare an inmate request form. He alleges that on 17 November 2012 his laptop and USB hard drive were seized. He was taken before the area manager, who told him that he was being charged in relation to the inmate request form but refused to tell him precisely what the charge was. He pleaded not guilty, and was peremptorily found guilty and sentenced to 5 days cell confinement. On the next day he was taken before the Governor, who confirmed the conviction but substituted as the penalty the requirement of a period of good behaviour and the confiscation of the laptop. He was subsequently told that there was no further avenue of appeal. 61He alleges that the prosecution was malicious or, in the alternative, "an abuse of process to pervert the course of justice", designed to intimidate him because of his claim against the Commissioner and officers, including his calling upon inmates and certain officers to give evidence in the proceedings: par 86. This appears to be an allegation of malicious prosecution, but it also is inadequately pleaded. As Mr Williams pointed out, although there does appear to be some attempt to identify the relevant malice, there is no pleading of the matters required for favourable determination. 62The final claim against Corrective Services is to be found in pars 88-100. Put shortly, it alleges that in December 2012, on the day after he filed the present proposed pleading, Mr Clark was transferred to the Segregation Unit at Goulburn. He alleges that this was done to prevent him from preparing documents in relation to the various matters in which he is involved, including the present proceedings. He was held at Goulburn until the end of January 2013, when he was transferred to the Segregation Unit at Long Bay. He asserts that these placements were "a blatant abuse of power designed to pervert the true course of justice and to intimidate the Plaintiff into withdrawing these statements of claim": par 99.

Justice Health 63The claim against Justice Health is in negligence, and is to be found in pars 105-118. It is a truncated version of a claim in pars 88-121 of the 2005 pleading. 64Mr Clark alleges that in December 2007 he was prescribed a substantial dose of an anti-depressant by a psychiatrist employed by Justice Health, that the effect of the medication upon him was not monitored, and that he became "Hypo-manic." As a result he was unable "to properly and rationally instruct his legal team" in a criminal appeal, which he lost: pars 108-112. This appears to be the appeal referred to at [29] above. 65He further alleges that in April 2009 he was placed back on a high dose of the same medication, which had the same effect upon his capacity to instruct his lawyers in the criminal trial referred to at [42] above. As a result, he claims, he lost that trial: pars 113-118.

Submissions 66In support of his application for amendment Mr Clark provided a lengthy statement, with annexures. Although the statement begins with the assertion that the facts set out in it are true and correct to the best of his recollection and belief, it is not sworn. However, I was prepared to receive it for present purposes. It sets out the factual basis for the claims in the proposed pleading, much of which is recited in the pleading itself. Part of it deals with the claims against Corrective Services and his complaints about the conditions of his custody, and this material is also relied upon on the issue of delay. 67Mr Williams opposed leave to amend on a number of bases. He relied upon the deficiencies in the pleading to which I have referred, noting that in the majority of the claims no cause of action is clearly identified, let alone adequately particularised. 68He also pointed out that the proposed pleading does not meet the terms of the leave to replead which had been granted. As to the 2002 proceedings, an amended statement of claim was to be filed within 3 months. That period expired on 22 August 2012, the Court of Appeal's decision having been handed down on 22 May. However, on 18 June Hoeben JA, as he then was, extended that period to 24 October, making certain recommendations about Mr Clark's access to computer facilities in custody. As I have said, the motion to amend the proposed pleading was not filed until 10 December 2012, pursuant to leave granted that day by Registrar Bradford. 69More importantly, the continued reference in parts of the proposed pleading to the bribery allegation the subject of the dismissed claim is in breach of the directions of the Court of Appeal and of Harrison J. 70As to the 2005 proceedings, Mr Williams noted Harrison J's stay of those proceedings until further order and, in particular, his direction that Mr Clark take no further step in them unless and until he served upon the State "any further version of the current statement of claim" which complies with the rules of court. The proposed pleading does not meet that requirement. Moreover, nothing in the grant of leave in either the 2002 or 2005 proceedings permitted the addition of new claims. 71As to those new claims, Mr Williams also noted that leave to pursue them would be required under the Felons (Civil Proceedings) Act 1981. He added that some of them would be timed barred, so that to allow those amendments would be futile, citing Fernance v Nominal Defendant (1989) 17 NSWLR 710. 72Mr Clark prepared written submissions in response to the written submissions of Mr Williams, as well as presenting oral argument. Relevantly for present purposes, he acknowledged that, not being legally trained, there might well be problems with the manner in which he pleaded his claims. He sought indulgence in that respect, citing a passage from the judgment of Kirby J in Bhattacharya v State of New South Wales [2002] NSWSC 361 at [4]: "Mr Bhattacharya is an unrepresented litigant. He is not a lawyer, although he is the veteran of many legal actions in which he has represented himself. The skill of a trained pleader is not to be expected from a litigant in person. So long as the Statement of Claim adequately serves the purpose for which it is intended, the Court should extend a degree of latitude (cf Kirby P, Rajski v Powell (1987) 11 NSWLR 522 AT 524)." His Honour went on at [5] to refer to the frequently cited passage to the same effect in the judgment of Kirby P in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536. 73Mr Clark also referred to the decision of Kirby J in Markisic v Today-Denes & Ors [2002] NSWSC 308. That was a defamation case in which the plaintiff was unrepresented. His Honour was of the view that the material upon which the plaintiff relied was capable of giving rise to defamatory imputations. The statement of claim was defective and his Honour granted leave to file a further amended statement of claim after setting out how it should be rectified. He found that the plaintiff had made an effort to produce a document conforming with the rules, noting the sympathy one might have for a litigant in person "entering the minefield of defamation": at [9]. Mr Clark submitted that he should be afforded assistance of that kind in the present case. 74He explained that in classifying most of the claims in the proposed pleading as Trespass, he was using that word in a general sense. He saw it as a "main heading" under which "you have all the subheadings ... ." He relied upon the observation of Harrison J in his judgment at [29] that the 2005 pleading, while "ill expressed", described "a claim, or a series of claims, that cannot be characterised as hopeless or even as novel." 75He acknowledged that the new claims in the proposed pleading require leave under the Felons (Civil Proceedings) Act, and he sought that leave. He also sought the referral of the matter generally for pro bono assistance. 76It would not be appropriate for the court to assist Mr Clark in drafting amended pleadings. As Mr Williams rightly pointed out, the present case is very different from Markisic v Today-Denes. Kirby J was there dealing with a contained and clearly identifiable cause of action, set out in a statement of claim the deficiencies of which could readily be cured. That is certainly not true of the proposed pleading here. As Mr Williams put it, for the court to assist Mr Clark with his wide ranging pleadings would "inevitably involve crossing a line," putting the court effectively in the position of being his counsel. 77As to the references to the bribery allegation in the proposed pleading, Mr Clark argued that they were not inconsistent with the directions of the Court of Appeal. He appeared to have understood those directions as amounting to no more than a prohibition of his pursuing the dismissed claim. However, the court's direction was clearly broader than that. As Mr Williams also correctly pointed out, where the bribery allegation is referred to in the proposed pleading it forms a particular of the relevant claim, and that is inconsistent with the direction, as it is with the direction of Harrison J. 78Finally, the form of the proposed pleading as a consolidated statement of claim in two parts is inappropriate. The claims in Part B against Corrective Services and Justice Health are unrelated to each other, and those claims in turn are unrelated to the claims against the police. If they were able to be pursued, the three sets of claims would need to be the subject of separate proceedings. Mr Clark was on notice of this problem, it having been the subject of letters to him by the State Crown Solicitor after he foreshadowed his intention of seeking to join the claims against Corrective Services and Justice Health in the 2005 pleading: see the judgment of Harrison J at [15]-[16]. It was also the subject of discussion at the hearing of the motion before his Honour: [17]. 79Plainly enough, the proposed pleading cannot be allowed to stand. It achieves none of the purposes set out in s 64(2) of the Civil Procedure Act: the determination the real questions raised by the litigation, the correction of any defect or order in the proceedings and the avoidance of multiplicity of proceedings. The question remains whether Mr Clark should be allowed a further opportunity to replead his case. This brings me, then, to the State's motions.

Dismissal/strike out 80In each of the 2002 and 2005 proceedings the State seeks the following orders:

• dismissal for want of due despatch, pursuant to UCPR r 12.7;
• dismissal as vexatious and an abuse of the court's process, pursuant to r 13.4; or
• striking out as an abuse of process of the court and as tending to cause prejudice, embarrassment or delay in the proceedings, pursuant to r 14.28.

81Mr Williams relied upon affidavits of Ms Stephanie Koch, a solicitor employed at the State Crown Solicitor's Office, setting out the procedural history in each of the proceedings. In the 2002 proceedings that history is provided in a schedule to the affidavit comprising 18 pages. The proceedings commenced when Mr Clark, unrepresented, filed a statement of claim on 21 May 2002. This was followed by an amended statement of claim filed in the following month. There was then a series of interlocutory steps, including applications by Mr Clark to secure legal representation, until Mr Greg Walsh, solicitor, came into the matter. It was while Mr Walsh was instructed that the 2002 pleading was filed. 82In 2004, the matter was listed for hearing before Wood CJ at CL, and senior and junior counsel were instructed to appear for Mr Clark. Put shortly, it was at the outset of that hearing that senior counsel sought an adjournment, having been instructed that there was a tape recording confirming the bribery allegation. Later that month senior counsel informed the court that the tape had been destroyed, and that the services of his junior and himself had been terminated. In the following month Mr Walsh ceased to act, and Mr Clark was thereafter unrepresented. There followed the State's application for dismissal of the proceedings as an abuse of process. Mr Clark was represented by counsel, following a referral for pro bono assistance. The motion was heard by Johnson J in August 2005, and his Honour gave judgment on 30 June 2006. 83In the meantime Mr Clark had been pursuing an application for leave to appeal against a costs order made against him by Wood CJ at CL on 9 November 2004 arising from an interlocutory proceeding to which it is not necessary to refer. That was itself the subject of a number of interlocutory steps in the Court of Appeal, and ultimately it was dealt with at the same time as his appeal against the judgment of Johnson J. 84On 19 November 2006, McColl JA referred Mr Clark for pro bono assistance in relation to that appeal. There was then an extended delay due to unsuccessful attempts to appoint a pro bono lawyer, during which Mr Clark also complained that he lacked proper facilities to prepare his appeal in custody and was facing a series of criminal matters. 85It was not until November 2008, while Mr Clark was still unrepresented, that any further step was taken in the appeal. Thereafter the matter was listed a number of times for call over and for directions hearings. The appeal was listed for hearing in June 2011, but he successfully applied for that date to be vacated pending the disposition of another criminal prosecution which he was facing. In October 2011 counsel came into the matter as amicus curiae. Ultimately, the appeal was heard in April 2012, the amicus providing written submissions in relation to the judgment of Johnson J. As I have said, the court gave judgment in May of that year. There were further interlocutory steps, which need not be recounted, before Mr Clark's present motion was filed in December 2012. 86The progress of the 2005 proceedings is set out in a schedule running to 22 pages, comprising numerous court appearances and correspondence between Mr Clark and the Crown Solicitor's Office. Mr Clark has been unrepresented throughout these proceedings, which were commenced by statement of claim on 14 June 2005. 87It is not practicable to set out in these reasons the long and detailed history recounted in the schedule. Part of it is to be found in the judgment of Harrison J at [10]-[22], where his Honour described developments while he himself was dealing with the matter between December 2008 and April 2010. It was over 2 years after the orders made by Harrison J in June and July 2010 that the motion in respect of the proposed pleading was filed. However, it is fair to observe that during that period Mr Clark was dealing with the appeal against the judgment of Johnson J in the 2002 proceedings. 88Mr Williams also read a further affidavit of Ms Koch revealing that, between 2003 and March 2012, seven of the police officers the subject of Mr Clark's claims had been medically discharged from the Force. At the time the affidavit was sworn, in February 2013, an eighth officer was to be medically discharged in the near future. 89Mr Williams fairly acknowledged that he could point to no specific prejudice arising from the delay in preparing the State's case. However, he pointed out that the claims in the 2002 proceedings are based on events said to have occurred no later than 2000. For the most part, the claims against police in the 2005 proceedings (putting aside the new claims in the proposed pleading) relate to events in 1999 or between 2005 and 2007. However, one claim is based on events in 2008: referred to above at [40], and two are based on events up to 2009: [42] and [43]-[47]. 90As I have said, the form of the proposed pleading as a consolidated document, embracing the claims in both proceedings, is inappropriate. Nevertheless, for present purposes I am prepared to treat it as an attempt to amend both the 2002 and 2005 pleadings, with the claims referred to at pars [26]-[28] above being the proposed amendments to the 2002 pleading. Viewed in that way, it is possible to deal with it in respect of the two proceedings separately. It is convenient to deal firstly with the 2005 proceedings.

2005 proceedings 91These proceedings have undoubtedly been very protracted, and have made little or no progress since their inception. As I have noted, Mr Clark's current application to amend the 2005 pleading was made roughly 2 ½ years after Harrison J granted him leave to replead. Whilst that delay may be partly explained by his conduct of the appeal against the decision of Johnson J, it must be viewed against the background of the substantial delay attending the proceedings from their outset, including the period during which Harrison J was dealing with them. Moreover, as Mr Williams pointed out, the proposed pleading in large part reproduces the 2005 pleading and fails to address the problems with it identified by Harrison J. It remains, as his Honour described it at [41] of his judgment, "an embarrassing document" with "the potential to cause prejudice and delay." 92I appreciate the difficulty Mr Clark faces as an unrepresented litigant drafting pleadings. Nevertheless, he is an intelligent man, who appears to have become familiar with a deal of court procedure throughout the proceedings in which he has been involved and to have the capacity for research. I do not consider it appropriate at this very late stage to refer the matter for pro bono assistance. Indeed, in the light of the lack of response to the referral by McColl J in respect of the appeal, I consider that a further referral would be futile. 93I am also conscious, as was Harrison J, of the problems he faces being in custody. These are described in his statement, particularly that part of it dealing with his application in relation to his conditions in custody. In relation to that application I also received, in the State's case, the affidavit of Mr Michael Hovey, a senior officer in Corrective Services New South Wales. Mr Hovey gave oral evidence and was cross-examined by Mr Clark. 94Put shortly, what emerges from this material is that Mr Clark does have access to computer facilities, albeit in circumstances considerably more constrained than a person at liberty. The same is true of his access to the documents and other records in his possession in relation to his outstanding proceedings. His access to this material and to his facilities is affected by the daily routine of prison life as he experiences it, as well as his movements from time to time to different institutions within the system. It is appropriate also to take into account the assault he endured in 2007 and the treatment for it, the subject of the claim summarised at [50]-[51] above, and to the fact that he has been involved in the preparation of other proceedings, criminal and civil. 95However, despite these difficulties, the delay in the progress of these proceedings is unacceptable. The State's applications for dismissal of the proceedings as vexatious or an abuse of process, or for the striking out of the proposed pleading as an abuse and as tending to cause prejudice, embarrassment or delay, have substance. I have already commented upon the issues of embarrassment, prejudice and delay. To this should be added the fact that the new claims, not previously pleaded, are not authorised by Harrison J's grant of leave, and the reference in some of the claims to the bribery allegation are in breach of one of the terms upon which leave was granted. 96That said, I am content to terminate the 2005 proceedings on the basis of want of due despatch. I do so mindful of the principles, arising from authority and from the structure of the Civil Liability Act, discussed in Bi v Mourad [2010] NSWCA 17, per Allsop P at [47]-[49], Young AJA at [28] and Sackville AJA at [41]. Harrison J's prediction, referred to at [14] above, that Mr Clark would never produce a properly pleaded statement of claim has proven to be true. As his Honour foreshadowed, the time has arrived when no further opportunity to do so should be extended to him. Balancing the legitimate interests of the parties, justice requires that the proceedings be dismissed. That includes the claims against the Robards, even though they were not parties to the present motions. 97It 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.

2002 Proceedings 98The fate of these proceedings is not as easily resolved. It is true that they are older than the 2005 proceedings, as are (with one exception) the events of which they complain. It is also true that much of the delay in the progress of the proceedings stems from the judgment of Johnson J and the appeal against it, which had their genesis in Mr Clark's misconduct in destroying the tape recording. 99The fact remains that the appeal was not finally determined until May 2012. The time set by the court for the filing of an appropriately amended statement of claim was subsequently extended to 24 October 2012. Mr Clark's motion to amend was filed less than 2 months after that date and, in all the circumstances, the extent to which it was out of time is, of itself, of little significance. 100Certainly, the proposed amended pleading of those claims cannot be allowed to stand, but the original pleading of them, when Mr Clark was represented, appears to be appropriate. Mr Williams did not suggest otherwise although, of course, his focus was upon the proposed amended pleading. It may be that a reversion to that original pleading, amended in accordance with the court's directions, would be acceptable. In so saying, of course, I make no comment about the prospect of success of those claims: a matter to which, at this late stage, Mr Clark would also need to give careful attention. 101Of course, the paragraphs of the proposed pleading purporting to amend the 2002 pleading are not in accordance with the limited leave granted by the Court of Appeal, and do not achieve the purpose of that leave. However, that is a matter which might readily be remedied by focusing upon the earlier pleading of those claims and the terms of the court's leave. This is something which might be able to be achieved expeditiously and without injustice to the State. That said, the question was one which was not squarely addressed in written or oral submissions and, even at this late stage, I think it appropriate that the parties should have the opportunity to be heard on it.

Conditions of custody 102In the circumstances, it is inappropriate to deal with Mr Clark's applications concerning his conditions of custody. In any event, those applications have been overtaken by a fresh application he has made in separate proceedings, which is for hearing on the day this interim judgment is to be handed down.

30 May 2014 103The matters were listed before me on 30 May, 2014 to deal with the issue I raised concerning the 2002 proceedings. However, before turning to that, I should record that Mr Clark sought to have me re-examine my decision in respect of the 2005 proceedings. He argued that I had given insufficient weight to the effect of his conditions of custody upon his capacity to deal with those proceedings, relying upon an affidavit of 14 May 2014 in which he repeated some of the material upon which he had relied and raised some further matters about his custodial situation. In addition, he had prepared a fourth further amended statement of claim in both proceedings, in which he sought to replead yet again some of the claims in those pleadings. 104This was beyond the scope of the matter as to which I sought further submissions on 12 May and, in any event, none of this fresh material persuades me that I should revisit the decision which I announced on that day that the 2005 proceedings must be dismissed. That decision stands, and leave to file the fourth further amended statement of claim is refused. 105As to the 2002 proceedings, Mr Williams maintained his submission that they should also be dismissed. While acknowledging that the order of the Court of Appeal granting Mr Clark limited leave to replead is relatively recent, he noted that the court was not concerned with the issue of due despatch which I am called upon to examine. While also acknowledging that the State could not establish any specific prejudice arising from the delay in prosecution of the proceedings, he referred to the measure of prejudice inherent in long delay considered in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, particularly per McHugh J at 552 ff. 106Mr Williams also noted that in the consolidated statement of claim which Mr Clark advanced pursuant to his motion of 10 December 2012 he had travelled well beyond the strictly limited terms of the leave granted him by the Court of Appeal, as he continued to do in the fourth further amended statement of claim produced today. Mr Williams argued that Mr Clark had exhausted his opportunity to replead, and that I could never be confident that he would observe the limits placed upon the Court of Appeal's grant of leave. 107Mr Clark assured me that he could, and would, do so if allowed a further opportunity. Not without some reluctance, I was prepared to allow him one last opportunity but that itself had to be strictly limited. For that reason I adopted the form of self-executing order proposed, as his fallback position, by Mr Williams.

Orders 108Accordingly, in relation to the 2002 proceedings I made the following orders: (1)The time for compliance with the direction made by the Court of Appeal in order 5 on 22 May 2012 is extended until 4.00pm on 30 June 2014. (2) Should the plaintiff fail or decline to comply with that direction, the proceedings are dismissed for want of due despatch pursuant to r 12.7 of the Uniform Civil Procedure Rules. (3) The parties have liberty to apply. 109The plaintiff's motion to amend the pleading in both the 2002 and 2005 proceedings in a consolidated statement of claim is dismissed, as is his motion in respect of his conditions of custody. 110The 2005 proceedings are dismissed, and the plaintiff is to pay the State's costs of those proceedings. The parties have liberty to apply in respect of the costs of the 2002 proceedings, including the motion to amend insofar as it related to those proceedings.

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: 19 June 2014