Clarke v State of New South Wales

Court of Appeal (NSW)|2015-02-03|Before: McColl JA, Ward JA

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

In April 2013, Mr Clarke commenced three separate sets of proceedings against the State of New South Wales in which he sought damages for a variety of causes of action, including conspiracy, wrongful arrest, false imprisonment and malicious prosecution. At around the same time he filed a notice of motion in terms seeking the joinder of the respective statements of claim but in effect seeking that the three sets of proceedings be heard together.
The genesis of the proceedings, as can be gleaned from the respective pleadings, was Mr Clarke's arrest on 8 December 2009 on a charge under s 545B of the Crimes Act 1900 (NSW) (for intimidation or annoyance by violence or otherwise) and the issue to Mr Clarke on the same day of a court attendance notice for a charge under s 60E of the Crimes Act (assaults at school). An amended court attendance notice was issued on 3 December 2010 in which the charge was amended to a charge under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (stalking or intimidation with attempt to cause fear of physical or mental harm). Complaints had apparently been made to the police in relation to Mr Clarke's conduct in relation to two schoolgirls.
The charges against Mr Clarke were ultimately dismissed by Magistrate Swain in the Local Court in May 2012. Mr Clarke then brought the respective sets of proceedings against the State and, in the case of the conspiracy proceedings, against the magistrate who had dismissed the charges against him.
The proceedings will for convenience be referred to as the conspiracy proceedings (being 2013/111053), the wrongful arrest proceedings (being 2013/111036) and the malicious prosecution proceedings (being 2013/111083).
The State filed notices of motion seeking to have all three statements of claim struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). In the conspiracy proceedings, the State also sought orders pursuant to UCPR 13.4 dismissing the pleadings against one or both of the defendants.
The primary judge heard the respective motions on 24 September 2013. On 2 October 2013 the primary judge dismissed the conspiracy and malicious prosecution proceedings, the latter dismissal being with the intention that the causes of action for malicious prosecution and wrongful arrest be pleaded in an amended statement of claim in the wrongful arrest proceedings: Clarke, Dallas v State of New South Wales [2013] NSWSC 1436. This is the first of the decisions the subject of Mr Clarke's application for leave to appeal: the "conspiracy judgment".
On that occasion, the primary judge also made an order referring Mr Clarke to the Registrar for referral to a barrister or solicitor for pro bono legal assistance in re-drafting his amended statement of claim in the wrongful arrest proceedings, they being the only remaining suit.
Mr Clarke filed an amended statement of claim in the wrongful arrest proceedings on 4 November 2013. It does not appear that he had legal assistance in the drafting of that amended pleading as the referral for legal assistance was terminated on 14 November 2013 after no pro bono assistance was forthcoming.
The amended pleading was the subject of a further strike out application, pursuant to UCPR 14.28, which came before the primary judge on 22 April 2014. On that occasion, Mr Clarke applied for the primary judge to recuse herself on the basis of apprehended bias. The primary judge dismissed that application for reasons given at the time: Clarke, Dallas v State of New South Wales (No 2) [2014] NSWSC 578. This is the second decision the subject of Mr Clarke's application for leave to appeal: the "bias judgment". The third is the subsequent decision made by the primary judge on 21 May 2014: Clarke, Dallas v State of New South Wales (No 3) [2014] NSWSC 593, striking out the amended statement of claim but granting leave to Mr Clarke to file a further amended statement of claim by 16 July 2014: the "strike-out judgment".
For the reasons which follow, we are of the view that leave should be refused and that Mr Clarke's summons for leave to appeal should be dismissed with costs.

Requirement for leave to appeal

An appeal lies to this Court, by leave, from a decision of an associate judge that is either an interlocutory decision or final judgment or order upon a trial pursuant to Sch D Pt 3, par 17A of the Supreme Court Rules 1970 (NSW) or a final decision (other than one of the nature referred to in s 101(2)(r)(i) or (ii) of the Supreme Court Act 1970 (NSW): El-Saeidy v NSW Land & Housing Corporation [2014] NSWCA 172 at [59].
For the purposes of the present application, the Court will proceed on the basis that each of the respective sets of proceedings falls within Sch D Pt 3, par 17A of the Supreme Court Rules, although there may be an issue as to whether claims for damages for conspiracy, wrongful arrest and malicious prosecution satisfy the description of a claim for damages for personal injury.
Each of the decisions was an interlocutory decision. In the case of the decision summarily to dismiss the conspiracy proceedings, the interlocutory nature of such a decision, for the purposes of determining whether an appeal lies as of right or by way of leave, was confirmed in AB v State of New South Wales [2014] NSWCA 243 by Leeming JA, his Honour there citing Macatangay v State of New South Wales (No 2) [2009] NSWCA 272.
Hence leave to appeal is necessary. In the case of the conspiracy judgment, an extension of time for leave to appeal is also required, since the summons was filed out of time.

Legal principles

In his summons, Mr Clarke has identified the primary question before this Court as being as follows: … whether the powers granted to the Supreme Court Rules Committee can be interpreted to exceed the powers of the New South Wales Parliament itself, by prohibiting a citizen's right to be critical of the NSW system of governance and its practice of denying a fair hearing and imposition of inequality before the Law. The Court is obligated to apply the Law equally to us all, including those who administer the Law, in a fair and unbiased manner - the Rule of Law. (see [6] of the summons for leave to appeal).
He has identified an additional question (at [7] of the summons seeking leave to appeal) as follows: …whether the Court has the power to demand a party seek professional legal representation. The applicant has already attempted on numerous occasions to obtain such representation, but has on each occasion been denied, and whether this is lawful grounds for denying a fair hearing. Further the imposition of conventions as law on self-represented parties, by demanding that the pleadings are anything more than a rough and ready summary of the facts.
Those are not the relevant questions before this Court. The question whether leave should be granted, including whether an extension of time should be granted for the filing of the summons insofar as it relates to the proposed appeal from the decision to dismiss the conspiracy proceedings, requires the Court to consider whether substantial reasons have been shown to allow appellate review of the respective interlocutory decisions: see Collier v Lancer (No 2) [2013] NSWCA 186.
Appellate courts exercise caution in reviewing interlocutory decisions, for the reasons explained in Williams v Director General of the National Parks & Wildlife Services [2002] NSWCA 176 at [36]. Where the decision challenged is a discretionary interlocutory decision, the task of an applicant seeking leave to appeal is recognised as being a difficult one: Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [73].
On the present application, Mr Clarke must demonstrate something more than that conclusions the primary judge reached in the exercise of her Honour's discretion pursuant to UCPR 14.28 and 13.4 were arguably wrong: Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46]. To succeed in challenging the exercise of such a discretion, he must establish an error in the House v The King sense (House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5), namely that her Honour made an error of legal principle and/or a material error of fact, took into account an irrelevant consideration, failed to take into account, or give sufficient weight to, a relevant consideration or arrived at a result so unreasonable or unjust as to suggest such an error: see also Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45].
Leave to appeal will not be granted in respect of interlocutory decisions where the appeal is doomed to fail: Young v Hones (No 2) [2014] NSWCA 338 at [63].

Draft Notice of Appeal

Mr Clarke's draft notice of appeal sets out eight grounds of appeal. It is not necessary to set those out in these reasons. Suffice it to note that he does not identify particular errors attending the respective decisions. Rather, the grounds of appeal, for the most part, contain assertions as to matters such as: Self-representation does not give the Court the ability to abuse individuals nor entrap them in bureaucratic quagmires. [part of ground [4] which also refers to the Court's obligation to provide fairness]
The relief sought by Mr Clarke if leave to appeal is granted and the appeal allowed goes beyond the setting aside of the decisions about which he complains. It includes, for example, declaratory relief as to matters such as: 6. … precisely what is the legal role of the pleadings, any obligation in their expression and what obligation is on each party to ensure that the other party does in fact know the legal implications of the pleadings. 7. … "the rules which define who within NSW government have protected [sic] from legal action status. And conversely, what defines who within government is small enough to fulfil the role of scapegoat.
Mr Clarke also seeks an order granting him leave to amend the statement of claim concerning tortious conspiracy, which the primary judge struck out, to add "the actions of Harrison AsJ".
Mr Clarke has filed a summary of arguments addressing issues such as the personal responsibility of judicial officers; the alleged acts of bias on the part of the primary judge; the right of self-representation; and the obligations in relation to pleadings.

The conspiracy judgment

The summons seeking leave to appeal in relation to the conspiracy judgment was filed well out of time. There was no evidence before the Court to explain the delay. Instead, Mr Clarke explained from the bar table that the delay was because, not being "totally experienced" in the legal system, he was not aware of the 28 day time limit applying in that regard.
Pausing there, the transcript of the first hearing before the primary judge, on 24 September 2013, records Mr Clarke at p 18 as saying that he was a qualified lawyer, had graduated in 2003 as a lawyer from the University of New South Wales but had never practised and that his mother was a lawyer and he "grew up around law firms", from which one might have assumed he would have understood that there would be procedural requirements applicable to the filing of court processes.
Mr Clarke has also informed the Court that he was aware that he had the choice of applying for leave to appeal to the Court of Appeal from the October 2013 decision, but he decided that that would be "a bit excessive" and it would be "better to live with" the conspiracy judgment. He said that it was only after the strike-out judgment that he formed the view that it was in his interests to appeal from the conspiracy judgment.
The respondent objects to an extension of time being granted. The respondent notes that Mr Clarke acted on the primary judge's orders made on 2 October 2013 in that he filed an amended statement of claim in which the causes of action of malicious prosecution, wrongful arrest and false imprisonment were pleaded and a cause of action of tortious conspiracy was not pleaded.
Mr Clarke made a forensic decision not to seek leave to appeal from the conspiracy judgment and the related orders the primary judge made in October 2013. An extension of time should not now be granted for him to appeal from that decision: cf Itek Graphix Limited v Elliot [2002] NSWCA 104; (2002) 54 NSWLR 207.
Further, Mr Clarke has not identified any arguable error in the House v The King sense insofar as the conspiracy judgment is concerned that would warrant appellate intervention.
In the conspiracy proceedings, Mr Clarke had alleged that, over a period of many years, an implicit understanding had developed between members of the New South Wales police force and members of the New South Wales judiciary "where the protection of the State's interest has been interpreted as concealing the criminal actions of State employees" (at [2]). Mr Clarke alleged that there were various parties to the alleged conspiracy, including members of the police force, the Commissioner of Police and a judge of the District Court. It was alleged that, in reliance on that implicit understanding, a particular senior constable had participated in a conspiracy to pursue a knowingly false prosecution against Mr Clarke on instructions from a named teacher and an unidentified police officer "in the benefit of two students" (at [2]).
The statement of claim further alleged that the police had "acted in reliance on the expectation of favourable rulings, to arbitrarily arrest and maliciously prosecute [Mr Clarke]". It was alleged that "[k]nowing that they would be awarded favourable decisions from the judiciary, they would reliably able to hide the real motivations for the prosecution" (at [3]).
The pleading continued (at [3]) to allege that "this understanding has also been demonstrated by the willingness of Magistrate Swain to exploit her position as a judicial officer to make arbitrary rulings that favour the Police and to routinely suppress and alter court record to conceal admissions and evidence brought during court proceedings that adversely affect the Police".
The pleading then alleged that: … these events identify that the conspirators have acted in concert as a self appointed "Lord Protector", where individuals will be arbitrarily arrested by the police for implicit offences and found guilty by compliant judicial officers who will impose fictitious legal obligations. This understanding extends to ignoring legitimate legal rights, from constitutional rights guaranteeing a jury trial, lawfully enacted legislative rights, centuries established common law rights, and to the ordinary basic legal duties. It is this circumvention of established legal principles that shows defiance from the excepted [sic] legal rules where by Parliament will decree the law and acceptable social standards, not members of the Judiciary. It is this understanding that the judiciary will ignore the lawful rights and impose fictitious obligations to identifiable subgroups within the NSW Community, whether they be: indigenous people; paedophiles; motorcycle gang members; or Middle Eastern ethnic minorities, which substantiates the conspiracy to commit treason. ([4] of the statement of claim)
Finally, the pleading alleged that the State was vicariously liable for the alleged tortious acts of the police and judicial members (including Magistrate Swain) (at [5]) and went on to make allegations against various named members of the police force, the judiciary and the school teacher alleged to be the "mayor [sic] instigator of the conspiracy".
It is apparent from [28] of the conspiracy judgment that the primary judge not only formed the view that the tort of conspiracy could not be made out on the facts alleged in the pleading and that this could not be remedied by amendment of the pleading - because one of the participants to the alleged agreement had acted directly contrary to the terms of the alleged agreement, insofar as Magistrate Swain had dismissed the charge that had been brought by the police - but was also of the view that it was an abuse of process to allow the action to go forward.
The primary judge went on, for completeness, to address the issue of judicial immunity. It is clear from the primary judge's reasons that the judicial immunity enjoyed by the Magistrate arising from her performance of her duties as a judicial officer was not the principal reason for the dismissal of the conspiracy proceedings but a further reason for her Honour's conclusion that the proceedings as to conspiracy could not be made out, could not be cured by amendment and should be dismissed: conspiracy judgment (at [38]).
In oral submissions on the present application, Mr Clarke emphasised his view that at the core of the matter was the question whether the Crown could shirk its obligation as to basic human rights in order to bring an application for a declaration that the proceeding brought against it was an embarrassment.
Mr Clarke maintains that his right to be critical not only of the Crown but also of the judiciary (which he asserts is part of the Crown) means that the dismissal of his conspiracy proceedings on the grounds that it was critical of the Crown was unlawful. He also claims that to assert that there is an overriding right of judicial immunity would inhibit any form of criticism.
It is incorrect to suggest that the primary judge dismissed the conspiracy proceedings on the basis that allegations were made that were critical of either the State or the judiciary. The primary basis on which the primary judge dismissed the conspiracy proceedings, as noted earlier, was that her Honour was not satisfied that the facts as alleged disclosed any reasonable cause of action.
Mr Clarke submits that the alleged conspiracy was not to convict or imprison him but "lawfully injury [sic] by abusing the legal process" (at [17]; [31]). While paragraph 2 of his pleading appears to allege a conspiracy to pursue a knowingly false prosecution against him; paragraph 4 appears to allege a much broader and imprecise conspiracy involving acting in concert arbitrarily to arrest individuals for "implicit offences" and to find them guilty with the imposition of "fictitious legal obligations", as well as a conspiracy to commit treason.
No error has been demonstrated in the conclusion that the conspiracy pleading was embarrassing and an abuse of process. It is sufficient to refer to paragraph 4 of the pleading set out in [35] above in that regard.
The decision to require the remaining causes of action of malicious prosecution and wrongful arrest to be pleaded in an amended statement of claim does not appear to be the subject of separate complaint, although Mr Clarke does complain generally as to the conclusion that his pleading is embarrassing. Certainly, the primary judge's decision to consolidate, in effect, the remaining two proceedings is not one that can be said to give rise to error in the House v The King sense, in circumstances where Mr Clarke had himself sought the "joinder" of the respective pleadings.
As to the primary judge's decision to refer Mr Clarke for pro bono assistance in the re-drafting of his pleading, Mr Clarke appears to have understood this as imposing on him an obligation to obtain legal representation as a "pre-requirement for bring [sic] any action before the Court" (see ground 7 of the grounds of appeal); and as harassment, bullying and intimidation by the primary judge (see [23] of the submissions).
That was not the effect of the primary judge's referral of the matter for pro bono legal assistance; nor can it be described as harassment, bullying or intimidation of any kind. Mr Clarke was not under any obligation to accept the provision of pro bono assistance, had any in fact been forthcoming. His right to represent himself was in no way affected by that referral. The inference that this was a decision adverse to Mr Clarke is misconceived. Indeed, as a cursory view of the amended pleading reveals, one can only conclude that Mr Clarke would have benefited from the input of a qualified legal practitioner into the drafting of that document.
The proposed appeal from the conspiracy judgment is both hopeless and out of time. Mr Clarke's explanation for delay cannot be sustained in the light of his conscious decision not to seek leave to appeal from it. Indeed, he appears only to have decided to seek leave to appeal from the conspiracy judgment because he was unhappy with the strike-out judgment, no doubt because his attempt to resurrect the conspiracy pleading in the amended statement of claim was unsuccessful.

The bias judgment

The basis on which the primary judge understood the allegation of apprehended bias to have been made is recorded in her Honour's reasons as being that Mr Clarke said he did not receive a fair hearing on 20 October 2013 because he was not prepared to meet a case based on an issue relating to judicial immunity, having come to court to meet the case that his "claims were embarrassing": bias judgment at [5].
The primary judge noted that in the defendant's submissions reference had been made to the law in relation to the immunity of judges: bias judgment at [10].
In the draft notice of appeal, ground 5 is a contention that the primary judge's refusal to apply the court rules equally between the parties demonstrates a clear bias. Reference is made to "pre-determined decisions" by the primary judge. It is asserted that the primary judge refused "to accept the obligations on the Court to ensure both parties are capable to support their arguments with reference to applicable laws and the facts that substantiate them".
In Mr Clarke's written submissions on the present application, he maintains that his right to a fair and unbiased hearing was "well a truly denied [sic] by the decisions by Harrison AsJ" and then refers to statements that he says were made at the initial hearing on 18 July 2013 but "now suppressed from the transcript".
Mr Clarke maintains that the primary judge "has taken it upon herself to predetermine the facts", there referring to paragraph [27] of her Honour's conspiracy judgment in which her Honour expressed surprise that, given the legal knowledge that Mr Clarke had informed her he had, he had made scurrilous, unwarranted and vexatious allegations against the police and the judiciary "without proper foundation".
Mr Clarke's submissions also complain of the denial of a basic human right to know what it is that you are charged with, as demonstrating bias: [18] of the submissions; that arguments for admitting privileged pre-litigation documents as evidence by the Crown were done with no submissions from either party: [19] of the submissions; that the primary judge went further than ruling on the drafting of the pleadings and went into arguments regarding the merits of the case: [20] of the submissions; that her Honour refused to follow "well-grounded precedent" "such as the right of self-representation, the obligations on the pleadings and basic human rights", said to demonstrate a refusal to uphold those rights and hence bias: [21] of the submissions; and that her Honour's reasons for refusing to accept as a party either the magistrate or the police commissioner was "without any legal foundation or direction": [22] of the submissions.
The primary judge set out in her second decision the test in relation to apprehended bias as articulated in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [75]-[78] per Gleeson JA, with whom Emmett JA and Tobias AJA agreed.
An allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided: Reid v Commercial Club at [77]. No such connection was identified by Mr Clarke.
Her Honour noted that the defendant's submissions had raised the issue of judicial immunity and referred to Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166: bias judgment at [10]. In the conspiracy judgment, her Honour had reproduced a passage from Fingleton which differed from that which the defendant had cited, because, as her Honour says, she thought that would "be more helpful to the plaintiff in understanding the principle of judicial immunity". We can see no basis upon which that aspect of the bias judgment might lead a fair minded lay observer reasonably to apprehend that her Honour might not have brought an impartial and unprejudiced mind to the resolution of the questions to be determined in the wrongful arrest proceedings.
Nothing that has been raised by Mr Clarke in his submissions suggests that the primary judge had pre-determined the issues that she was required to consider for the purposes of the strike-out application before her on 22 April 2014. The fact that she had previously ruled against Mr Clarke on a previous such application in relation to another cause of action does not demonstrate apprehended bias. Nor is there anything to support the assertion that the primary judge refused to apply legal precedent or was denying Mr Clarke any basic human right.
There is only Mr Clarke's assertion that there was any truncation or deletion from the transcript of what was said in court on earlier occasions. The Court was not taken to any particular passages of the transcript before the primary judge to make good the complaint of apprehended bias but a review of that transcript does not reveal any bias. What it does reveal is that the primary judge found the pleading confusing; was concerned to understand what it was that Mr Clarke was alleging; and had expressed the view that Mr Clarke would be assisted by obtaining pro bono assistance in the drafting of the pleading: see, for example, the transcript of 24 September 2013 at p 3. Moreover, it is recognised that in the course of a hearing there may be exchanges and even robust expression of views without leading to a conclusion that there was a reasonable apprehension of bias: see Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 493; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [111].
Mr Clarke has not demonstrated any arguable error in the bias judgment. This ground of appeal is doomed to failure. We would not grant leave to appeal in respect of the bias judgment.

Strike-out judgment

The primary judge referred to the relevant principles concerning strike out applications by reference to the conspiracy judgment: strike-out judgment at [9]-[13]. Her Honour noted that it was important to emphasise that the function of pleadings was mainly to state with sufficient clarity the case to be met by the defendant: conspiracy judgment: at [9].
The complaint made by Mr Clarke in relation to this decision appears to be, in essence, that he was being subjected to a standard of pleading that should not be applied to a self-represented litigant; that the pleading was struck out because he had been critical of the government or of the judiciary; and that the pleading could not be seen as "embarrassing" other than in a personal sense and this would not be a basis to strike out the pleading.
Mr Clarke referred to Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 and maintained that his right of self-representation meant that the standard applicable to him in relation to pleadings should not be higher than that of anyone else.
In his written submissions Mr Clarke maintains that the pleadings were sufficient to put the State on notice of the case against it - in part because the State was able to make submissions on the strike-out application that indicated the State knew what was being alleged. In that sense, Mr Clarke maintains that the State's position is contradictory.
Mr Clarke maintains that there is no greater legal significance to pleadings than "just a rough summary of the facts" and that it is not necessary that they be complete or comprehensive. He maintains that pleadings are not there "to ensure the defendant does in fact know the case against them". He contends that the powers granted to the Supreme Court Rules Committee cannot be interpreted to exceed the powers of the Parliament "by prohibiting a citizen's right to be critical of the NSW system of governance and its practice of denying a fair hearing and imposition of inequality before the Law".
The suggestion that the Court's Rules Committee is somehow prohibiting Mr Clarke from criticising the government or the judiciary is nonsense. The need for pleadings to put the other party on notice of the case made against that party and the adequacy of pleadings in that regard have been considered in various authorities and need not be repeated.
Similarly, the suggestion that Mr Clarke, as a self-represented litigant, is in some way being forced to comply with a higher or different standard of pleading than a party with the benefit of legal representation is nonsense.
The primary judge recorded, at [12], her overall impression of the pleadings, namely that the pleadings were comprised of a lengthy narrative of grievances in chronological order interspersed with some references to the law and that the document was prolix and confusing. That observation is more than justified.
The primary judge also made clear in her reasons the basis on which she considered that the pleading was deficient both as to the wrongful arrest claim and as to the malicious prosecution claim. That conclusion was clearly correct.
What it appears Mr Clarke has done in the amended pleading is to interleave into the wrongful arrest pleading, after [12], both the paragraphs dealing with his malicious prosecution claim - [13]-[31] in the amended pleading being [1]-[19] of the initial malicious prosecution pleading - and, under the heading "Allegations of Fraud & Breach of Statutory Duty", the bulk of the allegations from the conspiracy proceedings that the primary judge had dismissed - [8]- [59] of the pleading that was dismissed are [32]-[83] of the amended pleading, concluding as did each of the respective pleadings with the same final paragraph. What has been omitted is the introductory material in the conspiracy proceedings and the allegations about the school teacher made in [6]-[7] of the conspiracy pleading.
Mr Clarke maintains that those parts of the dismissed conspiracy pleading that have been included in the amended pleading are necessary facts to support his malicious prosecution claim and that the dismissal of these paragraphs undermines his malicious prosecution claim. Nowhere, however, is it made clear in the pleading how the previous conspiracy allegations are relevant to the allegations of malicious prosecution or wrongful arrest.
Parts of the amended pleading contain submissions as to the law: see, for example, [13]-[14] which are not appropriately included in the pleading; parts contain general conclusions: see [15] for example; parts contain general allegations with stated examples but without making it clear whether the pleaded allegation is limited to the particular example: see, for example, [16].
There is, for example, an allegation that "upon the realisations of the vexatious stalking claim, the police have intentionally initiated a vexatious harassment/intimidation prosecution as evidence [sic] by …" a number of matters some of which are bereft of any precise content (such as (n) - "to harass and intimidate the plaintiff, the plaintiff's legal representation and potentially any witness the plaintiff would call" - emphasis added).
The State filed detailed submissions in December 2013 identifying its complaint with the amended pleading. It pointed out, correctly, that in various places there was a lack of particularisation or pleading of the material facts alleged to constitute allegations, such as those contained in [16] of the amended pleading. It complains that in other parts of the pleading Mr Clarke has failed to identify those persons for whom the State is alleged to be vicariously liable: see the complaints as to [51]-[53], [54]-[55], [56]-[60], and [61].
The primary judge said, at [20], that it was difficult to discern whether Mr Clarke's case in relation to false imprisonment was based on: 1. non-compliance with s 99(3) of the Law Enforcement (Power and Responsibilities) Act 2002 (NSW); or 2. an early agreement between the school teacher and police constable and others to have the plaintiff wrongly arrested, their subsequent acts being in furtherance of that agreement; or 3. that he was not advised of the true grounds of his arrest; or 4. any combination of those.
The primary judge considered that, as the amended pleading then stood, the propositions were internally inconsistent and what Mr Clarke sought to plead in the alternative was far from clear and covered irrelevant and confusing material.
As to the claim in malicious prosecution, the primary judge noted the main complaint by the Crown as being that the elements of the tort were not addressed in any logical fashion so that the material facts relied upon in relation to each element were clear and that there was no identification of the prosecutor or prosecutors who it was alleged acted in initiating and/or maintaining the proceedings and who acted maliciously and without probable cause.
The primary judge also noted that the claim referred to the tort of collateral abuse of process and pleaded that Mr Clarke was arrested for "collateral benefits" but considered that the pleading did not make it clear what the case the State defendant had to meet in relation to the tort of legal abuse of process.
The pleading was not struck out because it was critical of the police or the judiciary or contained allegations that might be personally embarrassing to members of the police or the judiciary. It was struck out, quite correctly, because it was embarrassing in the sense in which that expression is understood when applied to a legal pleading.
Moreover, the primary judge granted Mr Clarke leave to re-plead. He was not held out of whatever cause of action might properly be pleaded based on the facts as he alleges them. It was well within the primary judge's discretion to form the view that the pleading was embarrassing and should be re-pleaded.
The appeal from this decision is bound to fail. Leave to appeal should not be granted.

Conclusion

Leave to appeal from each of the judgments should be refused with costs.

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: 24 February 2015

Law Enforcement (Power and Responsibilities) Act 2002(NSW)

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