Clark v State of NSW

Decision date: 06 May 2025

Jurisdiction: Common Law

Before: Harrison CJ at CL

Decision: (1) Dismiss the plaintiff’s application to amend his statement of claim.
(2) Order that the costs of the application should abide the costs of the proceedings.

Catchwords: CIVIL PROCEDURE – leave sought to rely upon what the plaintiff describes as a ‘proposed fifth further amended statement of claim’ – where proceedings commenced in 2002 – where plaintiff alleges false imprisonment, false arrest, malicious prosecution and abuse of process against the defendant – where matter is listed for hearing in July 2025 – where plaintiff is in custody without access to evidence to be relied on at hearing – where the pleadings sought to be relied upon are not an amendment, but a new case in substitution for the current claim – application dismissed

Category: Procedural rulings

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

Representation: Counsel:
A N Williams (Defendant)
Solicitors:
NSW Crown Solicitor’s Office (Defendant)

File Number(s): 2002/69098

Publication restriction: NIL

JUDGMENT

1. HIS HONOUR: Mr Clark sues the defendant claiming damages for false arrest, false imprisonment, malicious prosecution and abuse of process. The current statement of claim in the proceedings was filed on 24 July 2020. The matter is listed for hearing commencing on 7 July 2025 with an estimate of 10 days in accordance with orders made by Chen J on 8 August 2024. The defendant was ordered at that time to prepare and serve upon Mr Clark a court book containing the pleadings, the particulars and all evidentiary statements or affidavits served in the proceedings. That court book has been prepared in accordance with his Honour’s direction.

2. By his notice of motion dated 12 February 2025, Mr Clark seeks an order that he be given leave to amend his current pleadings and that he be permitted to rely upon what is referred to as his proposed fifth further amended statement of claim. That application is opposed.

3. The proceedings have had what on any view has been an extraordinary journey in this Court. They were originally commenced by statement of claim filed in 2002. The details of the procedural history are referred to in the affidavit of Helen Maamary, solicitor, affirmed on 11 April 2025 and read by the defendants on this application. It is presently unnecessary to record that history in detail in these reasons.

4. However, I note that on 27 March 2025, Chen J conducted a status review in advance of the scheduled hearing when Mr Clark indicated that he wished to amend his pleadings and to rely upon the fifth further amended statement of claim. The State was ordered to file and serve any evidence in respect of Mr Clark’s motion to amend by 11 April 2025.

5. Mr Clark’s current statement of claim makes allegations against the police that arise out of his arrest and charging by Officers Muxlow and Metcalf as long ago as 21 February 2000. Mr Clark also alleges that he was again arrested by the same officers on 29 February 2000 and charged with perverting the course of justice. He was in due course committed to stand trial. On 22 April 2001, Mr Clark was convicted and eventually sentenced by Dowd J to 12 months periodic detention. On 11 February 2002, the Court of Criminal Appeal upheld his appeal and quashed his conviction. Those facts and circumstances represent the basis upon which Mr Clark’s currently pleaded cause of action rests. The State of New South Wales filed its defence to that document on 24 May 2021. That is the case that is listed for hearing in July 2025.

6. On 17 November 2022, Mr Clark swore an affidavit which has since been served upon the defendant. That affidavit consists of 122 pages and 495 paragraphs. The defendant understands that it is the evidentiary statement upon which Mr Clark proposes to rely in these proceedings. It is to that statement of evidence that the defendant has responded by the service of evidentiary statements upon which it proposes to rely in defence of Mr Clark’s claim and which represents the case that it is prepared to meet.

7. The reasons why Mr Clark wishes to amend his statement of claim were explained during the hearing of his motion. Mr Clark is currently in custody awaiting trial in the District Court on various charges. He maintains that documents and other electronically stored data and related devices have been taken from him or that he has otherwise been denied access to them. This material and electronic equipment contains all of the evidence that he wishes to rely upon at the upcoming hearing. Mr Clark is concerned that he will not be able to present his case without it. So much may be thought to be uncontroversial.

8. What is controversial is the solution to the problem that Mr Clark proposes. That is to say, Mr Clark wishes to present a different case commencing on 7 July 2025 that is based not upon the events and circumstances currently pleaded, nor indeed upon anything vaguely related to or connected with them. Instead, Mr Clark wishes to propound an entirely new and different cause of action said to arise from his interactions with different police officers as recently as 2023 and 2024. For example, paragraph 4 of the proposed fifth further amended statement of claim, under the heading “FALSE ARREST/FALSE IMPRISONMENT – 16****TH NOVEMBER 2023” refers to the attendance by Officers Reardon and Shedden at his home on that day which in due course led to his arrest on charges of possess child abuse material. Mr Clark explains in detail in this proposed amended pleading that the charges were later dismissed by Magistrate Chicken on 24 October 2024 so that the criminal proceedings relevantly terminated in his favour. The nature of the relief claimed by Mr Clark is effectively the same as that sought by him in these proceedings.

9. It will be apparent from the foregoing that Mr Clark’s proposal to amend his statement of claim is fundamentally misconceived. Moreover, it fails to appreciate that the amendment that he seeks would put an end to the claims he has ferociously prosecuted now for over 20 years: in reality Mr Clark does not seek to amend his current claim by pleading these recent events as an additional cause of action but in substitution for them as a wholesale replacement. That would be an unfortunate and somewhat drastic outcome if the present application were allowed and one that to my observation Mr Clark neither appreciates nor intends. The application to amend should be refused for that reason alone, having regard to Mr Clark’s legally unrepresented status.

10. However, lest that approach appear to be somewhat patronizing, I observe that the defendant opposes the application on more fundamental grounds. The State is ready to proceed on 7 July 2025 and has prepared its response to the case on that basis. It is not in a position to meet the proposed new case, which is clearly incapable of either presentation by Mr Clark or response by the defendant on such short notice.

11. It is in the circumstances inevitable that Mr Clark’s application to amend his statement of claim must be dismissed. The costs of the application should abide the costs of the proceedings.

**********