Attorney General for New South Wales v Clark; Clark v State of New South Wales - [2022] NSWSC 361

Supreme Court

New South Wales

Medium Neutral Citation: Attorney General for New South Wales v Clark; Clark v State of New South Wales [2022] NSWSC 361
Hearing dates: 21 March 2022
Date of orders: 31 March 2022
Decision date: 31 March 2022
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) The State of New South Wales is removed from these proceedings as a defendant;
(2) The plaintiff's motions of 11 January 2022 and 9 March 2022 seeking the addition of parties and a cause of action is dismissed;
(3) To the extent sought by the Attorney General and applied for within seven days of the date of this judgment, the Court will hear the parties on any order for costs.

Catchwords:
CIVIL PROCEDURE – Summons for Judicial Review and Appeal of Refusal of Parole – Joinder of cause of action in negligence – consequential joinder of parties – Removal of party – overriding purpose – case management – joinder refused – party removed

Legislation Cited:
Civil Liability Act 2002 (NSW), Part 2A
Civil Procedure Act 2005 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW), s 155
Felons (Civil Proceedings) Act 1981 (NSW), s 4
Supreme Court Act 1970 (NSW), s 23
Crimes (Appeal and Review) Act 2001 (NSW), Part 7
Uniform Civil Procedure Rules 2005 (NSW), r 6.24, 6.27, 6.29

Cases Cited:
Application by Peter Frederick Clark [2021] NSWSC 1363
Clark v Attorney General of New South Wales [2019] NSWSC 1277
Clark v Attorney General of New South Wales [2020] NSWCA 70
Clark v R (No 2) [2015] NSWCCA 271
Clark v R [2014] NSWCCA 236
Clark v R [2015] NSWCCA 265
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Peter Frederick Clark v The Queen [2016] HCASL 79
PFC v R (No 2) [2014] NSWCCA 241
PFC v R [2011] NSWCCA 275

Category: Procedural rulings
Parties:
Attorney General’s motion of 14 December 2021:
Attorney General for New South Wales (Applicant)
Peter Frederick Clark (Respondent)
Plaintiff’s motions of 11 January 2022 and 9 March 2022:
Peter Frederick Clark (Applicant)
State of New South Wales (First Respondent)
State Parole Authority (NSW) (Second Respondent)
Commissioner for Corrective Services (NSW) (Third Respondent)
Attorney General for New South Wales (Fourth Respondent)
Representation:
Attorney General’s motion of 14 December 2021:
Counsel:
I Fraser (Applicant)
Self-represented (Respondent)

Solicitors:
Crown Solicitor’s Office (Applicant)
Self-represented (Respondent)

Plaintiff’s motions of 11 January 2022 and 9 March 2022:
Counsel:
Self-represented (Applicant)
No appearance (First Respondent)
Submitting appearance (Second Respondent)
No appearance (Third Respondent)
I Fraser (Fourth Respondent)
Solicitors:
Self-represented (Applicant)
No appearance (First Respondent)
Submitting appearance (Second Respondent)
No appearance (Third Respondent)
Crown Solicitor’s Office (Fourth Respondent)

File Number(s): 2021/314531

Judgment

HIS HONOUR: The Court is required to deal with two motions for interlocutory procedural orders: one by the plaintiff seeking to file an amended Summons and to add defendants; and, one by the Attorney General for NSW (hereinafter “the Attorney”) to remove the State of NSW as a defendant.
In the substantive proceedings, the plaintiff, Peter Frederick Clark, complains essentially about the refusal of parole by the State Parole Authority (hereinafter "the Authority") on 22 July 2021. Substantive proceedings were filed, by Summons, seeking orders, quashing what is described as the initial decision of the Authority of 6 May 2021. The initiating process was filed on 21 September 2021. An Amended Summons was filed on 26 November 2021.
The Amended Summons seeks a grant of leave under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW); expedition of the hearing; and, orders, purportedly pursuant to inherent powers of the Court under its “fraud jurisdiction" to set aside the convictions entered against the plaintiff on 12 December 2006 and on 26 June 2009 in the District Court at Port Macquarie and the Downing Centre, respectively.
Further, that inherent jurisdiction is relied upon for the entering of verdicts of acquittal. Further again, the Amended Summons seeks, once more, the quashing of the Authority’s refusal of the plaintiff's application for parole by its decisions of 6 May 2021 and 22 July 2021, and an order that the Authority redetermine the plaintiff's eligibility for parole according to law.
On 11 January 2022, the plaintiff served on the defendants in the proceedings a document entitled Further Amended Summons (Statement of Claim), and by letter dated 9 March 2022 served on the Crown Solicitor’s Office, and purportedly sent to the Court, a document entitled Further Amended Summons (Revised) (Statement of Claim).
The procedural motion before the Court from the plaintiff seeks the Court’s leave to join the Director of Public Prosecutions (NSW) and a named police officer and the Commissioner for Corrective Services (NSW) to these proceedings. Further, it seeks the Court’s leave to file the Further Amended Summons (Revised) dated 9 March 2022 and the setting aside of the Attorney’s Motion, notice of which was dated 14 December 2021.
The Attorney initially sought by motion on notice, filed 14 December 2021, three prayers: that the Attorney be joined to the proceedings as a defendant, pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (hereinafter "UCPR"), in particular, rules 6.24(1) and 6.27; that leave be granted for the Attorney to intervene in the proceedings, pursuant to s 23 of the Supreme Court Act 1970 (NSW); and, that the State of New South Wales be removed as a defendant from the proceedings, pursuant to rule 6.29 of the UCPR.
Three affidavits have been filed and relied upon by the parties in these interlocutory proceedings. The plaintiff relies upon two affidavits he has sworn, an affidavit sworn 11 January 2022 and a further affidavit, entitled "Submissions - Affidavit" of 23 November 2021. The Attorney relies upon an affidavit of Emma Moss affirmed 14 December 2021. No objection was taken by either party to any of the affidavits.
Given the circumstance that the plaintiff is self-represented, the affidavits are in a form which, were that not the situation, might ordinarily have been the subject of objection and they deal with matters other than matters of fact. To the extent that the issues raised are submissions, the Court treats them in that manner.
It is necessary to set out some brief factual history. The plaintiff, Mr Peter Frederick Clark, is currently imprisoned at Long Bay Correctional Facility. As is obvious from the foregoing, he had applied for parole to the Authority. His earliest release date was 6 June 2021. The release on parole was opposed by the Commissioner for Corrective Services, amongst others. Parole, as is indicated above, was refused.
Apart from the matters outlined above that are sought in the initiating process, the plaintiff also seeks a direction consequential on an appeal under s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW). The terms of s 155 of the Crimes (Administration of Sentences) Act allows a prisoner who has been denied parole to apply to the Supreme Court for a direction to the Authority that information that formed the basis of the decision to refuse parole was false, misleading or irrelevant.
It is unnecessary in these reasons for decision to deal with the effect of s 155 of the Crimes (Administration of Sentences) Act, but its limitations have been the subject of comment in other judgments of the Court. The Court, as presently constituted, is not, in these proceedings, dealing with the substantive relief sought.
It is, however, necessary to note that, as may be clear from the foregoing outline of the prayers for relief, the plaintiff seeks orders in the nature of certiorari and other judicial review as well as purporting to appeal under s 155 of the Crimes (Administration of Sentences) Act. No issue arises in these proceedings as to any abuse of process arising from the different remedies, and it is unlikely that such a submission will be raised. It is sufficient, for present purposes, to note that the limitations on the effect of s 155 of the Crimes (Administration of Sentences) Act necessarily involves the proposition that judicial review would have significant work to do beyond any appeal under s 155 and, similarly, judicial review would not enable the Court to give directions relating to false, misleading or irrelevant information.
The fundamental issues with which the Court is required to deal on these motions are, from the plaintiff's perspective, the joinder of the Commissioner for Corrective Services (hereinafter "the Commissioner"); the joinder of the NSW Director of Public Prosecutions; the joinder of the named police officer; the granting of leave to file a Further Amended Summons (As Revised); and the setting aside of the third prayer in the Attorney's motion. From the perspective of the Attorney, leave to be joined to the proceedings and to intervene in the proceedings was granted by the Court previously and was the subject of consent by the plaintiff, which results in only one procedural issue remaining, being the removal of the State of NSW as a defendant in the proceedings.
As is obvious from the foregoing, the third prayer sought by the plaintiff is superfluous. As the Attorney's motion is before the Court, and is being dealt with in these reasons, it will either succeed or otherwise and it is unnecessary, in those circumstances, to set it aside.
It is unnecessary to relate the full litigious history of the plaintiff. For present purposes it is sufficient to note that the plaintiff was sentenced on 21 December 2009 in the District Court to a non-parole period of 10 years and 9 months with a balance of term of 3 years and 8 months.
There was a Crown appeal against the alleged manifest inadequacy of the sentence imposed, which the Court of Criminal Appeal dismissed. There was also an appeal against conviction by the plaintiff. [1] Applications were made to reopen the appeal pursuant to the Criminal Appeal Rules, which sought orders setting aside or varying the orders of the Court of Criminal Appeal. [2]
1. PFC v R [2011] NSWCCA 275.
2. PFC v R (No 2) [2014] NSWCCA 241.
A second application to reopen and to set aside the judgment was taken and dismissed. [3] There was a further trial for an offence of perverting the course of justice relating to a failure to comply with a court order requiring the plaintiff to produce certain material.
3. Clark v R [2015] NSWCCA 265.
For this last-mentioned offence, the plaintiff was convicted and sentenced to a non-parole period of 2 years, with a balance of term of 8 months, which extended the earliest release date on parole to 6 June 2021. There was an appeal against the conviction and sentence arising from the conviction for perverting the course of justice, which appeal was dismissed. [4]
4. Clark v R [2014] NSWCCA 236.
A further application was made under the Criminal Appeal Rules, which was set aside as vexatious. [5] The applicant applied for special leave to appeal to the High Court, which was refused. [6]
5. Clark v R (No 2) [2015] NSWCCA 271.
6. Peter Frederick Clark v The Queen [2016] HCASL 79.
On 17 May 2016, the plaintiff petitioned the Governor of New South Wales for a review of his convictions. This petition was refused. The plaintiff, on 10 October 2017, further applied for a review of both conviction and sentence, which, on 24 September 2019,[7] after delay in filing written submissions, was dismissed.
7. Clark v Attorney General of New South Wales [2019] NSWSC 1277.
There was an appeal from the last-mentioned dismissal of the application for review. The appeal was dismissed. [8]
8. Clark v Attorney General of New South Wales [2020] NSWCA 70.
There were other appeals and applications. The only other relevant matter that requires mention is that, on 8 November 2021, Cavanagh J dismissed an application for a further review under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW). [9] This application once more sought a review of the original conviction and sentence. There is extant an appeal to the Court of Appeal against the judgment of Cavanagh J, which has yet to be heard.
9. Application by Peter Frederick Clark [2021] NSWSC 1363.
In relation to the submission, urged by the plaintiff, that the office of the Director of Public Prosecutions and/or the named police officer are appropriate parties to the proceedings for judicial review or in aid of that which is alleged to be the inherent “fraud jurisdiction" of the Court, it is clear that the appropriate party and contradictor, other than the Authority itself, is the Attorney General and all of the relief can be obtained from the Attorney. In those circumstances, it is neither appropriate nor proper for the further parties to be added to the proceedings.
The application for leave to add parties to the proceedings is inextricably linked to the application for leave to file a Further Amended Summons. The reason for that linkage is that the Summons seeks, for the first time, relief against the office of the Director of Public Prosecutions and the named police officer for a cause of action in negligence. It is said that the Commissioner was “negligent", as was the Authority, in detaining the applicant in custody beyond his earliest possible release date. The damage, it is said, is "great fear, duress, indignity, hurt and injury" and the plaintiff claims aggravated damages and exemplary damages.
Plainly, if the Court were satisfied that the Further Amended Summons should be the subject of leave, then it would be necessary to join as a defendant, the Commissioner for Corrective Services and, to the extent that the negligence cause of action is agitated against the putative third defendant, being the named police officer, it would be necessary to name the State of New South Wales as the party responsible in any suit against a police officer.
It seems, as best as can be gleaned from the terms of the proposed Further Amended Statement of Claim, that the office of the Director of Public Prosecutions and the named police officer are pursued in the inherent jurisdiction of the Court as a consequence of what is said to be fraud, allegedly established by fresh evidence.
The plaintiff concedes that the cause of action in fraud is the same issue and relies upon the same bases as did the review determined by Cavanagh J, and which is the subject of appeal to the Court of Appeal. Nevertheless, the Attorney does not raise abuse of process as a basis upon which the proceedings to set aside the conviction should be struck out. [10]
10. Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21.
The plaintiff seeks to join the Commissioner for Corrective Services on the basis that the Commissioner of Corrective Services recommended against parole, which recommendation was accepted by the Authority.
Further, the plaintiff filed a Statement of Claim in 1998 against Police and/or members of the Police Force for malicious prosecution. The named police officer, sought to be added as a defendant in these proceedings, was named as a relevant party and/or actor in the 1998 Statement of Claim.
The plaintiff alleges that, as a consequence of the filing of the 1998 Statement of Claim, the named police officer was directed not to be involved in the investigation of offences thought to be committed by the plaintiff. It is also alleged that the said police officer was involved after that direction. The request that he not be involved in investigations or proceedings against the plaintiff was a request, according to the plaintiff, made as a consequence of the fact that the 1998 Statement of Claim referred to the said police officer.
The addition of a cause of action in negligence to the current proceedings would alter significantly the nature of the proceedings now before the Court. There is no application yet to strike out the proceedings on any quasi-substantive basis. Rather, the applications are procedural and deal with the most expeditious and appropriate manner in which these causes of action, if pursued, should be pleaded.
Ordinarily, a cause of action in negligence would not be commenced by summons. It requires a statement of claim that pleads the cause of action and all material facts.
Plainly, on the face of the revised proposed Further Amended Summons, it is neither a statement of claim, nor does it plead the material facts necessary to establish the cause of action. For example, it is unclear from the Summons how the plaintiff alleges there is a duty of care owed by the Authority or the Commissioner to the plaintiff. Nor has the plaintiff alleged facts which seek to establish the kind of proximity or relationship between the Authority or the Commissioner, on the one hand, and the plaintiff, on the other hand, that would allow for the determination that a duty of care exists.
The addition of the cause of action in negligence to the current proceedings would be most inconvenient and would significantly delay the finalisation of the proceedings that are currently before the Court. I approach the exercise of the discretion in relation to the addition of the cause of action on the basis of the UCPR and the injunction in the Civil Procedure Act 2005 (NSW).
The Civil Procedure Act enjoins the Court, legal practitioners and the parties to facilitate the “just quick and cheap resolution of the real issues between the parties". The addition of a cause of action to these proceedings that alleged negligence of the kind sought by the plaintiff would significantly and adversely impact that purpose.
In my view, the addition of the cause of action in negligence would be to affect detrimentally the expeditious determination of the current proceedings, render the resolution of the disputes unjust by confusing different causes of action and different defendants, and add to the cost of the proceedings. In those circumstances, the motion of the plaintiff, to the extent that it seeks to add a cause of action in negligence against the Authority and the Commissioner, will not be permitted.
There are a number of other aspects to the claim which ought to be mentioned. First, the refusal of leave by the Court, to add a cause of action in negligence against the Authority and the Commissioner, does not preclude the taking of proceedings against either or both of those parties, if the plaintiff is otherwise minded so to do. The foregoing is not intended to be, nor should it be taken as, a suggestion that a cause of action arises.
Secondly, it would seem, on the terms of [8] of the Proposed Further Amended Summons (Revised) (Statement of Claim) that the plaintiff is seeking damages for personal injury. Again, the foregoing is not intended to suggest that "great fear, duress, indignity, hurt and injury" is necessarily personal injury or is capable of being personal injury.
Nevertheless, to the extent that the claim is for personal injury it would be governed by the terms of Part 2A of the Civil Liability Act 2002 (NSW). No attempt is made to establish a basis under those provisions, or to seek to explain why they do not apply.
Thirdly, the terms of [8] of the Proposed Further Amended Summons (Revised) (Statement of Claim) does not plead the facts giving rise to any lack of due care and seems to rely upon the retention of the plaintiff in custody, which, under the paragraph, is not said to be “unlawful", but is described as “false, “unfair”, “unjustified” and “oppressive abuse of the proper processes of the law”.
In all of the circumstances, the Court, in the exercise of its discretion, does not consider it appropriate or convenient for the current proceedings to have added to it a claim in negligence against either the Authority or the Commissioner, and that aspect of the plaintiff's motion is dismissed.

Next, once the claim in negligence is severed, the addition of the Commissioner of Corrective Services as a defendant in the proceedings seems to rest upon an application for orders in the nature of judicial review against the Commissioner because of the Commissioner's submissions made to the Authority recommending against parole.
There is no suggestion that the Authority was bound as a matter of law or duty to accept the recommendation or submission of the Commissioner. Nor is there a suggestion that, as a matter of practicality, the recommendation was the effective decision under the Crimes (Administration of Sentences) Act. There can be no doubt that the decision of the Authority affected the legal rights of the plaintiff.
Nevertheless, for the plaintiff to succeed on judicial review against the Commissioner for a submission or recommendation, the plaintiff would be required to show that the recommendation or submission sufficiently determined, or was connected with, that decision in an operative sense. [11]
11. Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44.
Nothing to which the Court has been referred, or which it has found, suggests that the Commissioner's submissions or recommendations operated either as a precondition or as a bar to the course of action undertaken by the Authority. Nor did the submission or recommendation operate as a step in a process capable of altering rights, interests or liabilities.
It is clear, on my reading of the relevant legislation, that while the Authority may be permitted to take into account the Commissioner's recommendation or submission, the Authority is not obliged so to do. In those circumstances, certiorari will not lie against the Commissioner. [12] The foregoing does not depend upon the fact that an alternative remedy may be available in relation to the recommendation. [13]
12. Hot Holdings Pty Ltd v Creasy, supra.
13. Minister for Immigration and Multicultural Affairs v Eshetu, supra.
As a consequence of the foregoing, the only effective decision maker, in relation to the refusal of parole, is the State Parole Authority and it, together with the Attorney General, who has been granted leave to intervene and named as a defendant, should be the only defendants to the proceedings.
As earlier stated, nothing in this judgment is intended to interfere with the rights of the plaintiff to seek leave to file proceedings against any party of which he is advised in relation to any proceeding relating to negligence or any other cause of action. The purpose of this judgment is to regularise the proceedings currently before the Court or otherwise due to be heard in short time.
For the foregoing reasons, the motion of the plaintiff, both by notice filed on 11 January 2022 and the amended notice filed on 9 March 2022, is dismissed. In relation to any leave that is sought under s 4 of the Felons (Civil Proceedings) Act1981, leave is unnecessary in relation to the judicial review of the decision of the Parole Authority. The Court, for the foregoing reasons, refuses leave to file the Further Amended Summons (Revised) (Statement of Claim) and the Court refuses to join the Director of Public Prosecutions (NSW), the named police officer and the Commissioner for Corrective Services.
As to the motion on notice from the Attorney, it is clear on the basis of the foregoing result that the only relevant defendant, apart from the Attorney, is the State Parole Authority, in these reasons, referred to as the Authority. As a consequence, the State of New South Wales will be dismissed as a defendant.
The Court makes the following orders:

The State of New South Wales is removed from these proceedings as a defendant;

The plaintiff's motions of 11 January 2022 and 9 March 2022 seeking the addition of parties and a cause of action is dismissed;

To the extent sought by the Attorney General and applied for within seven days of the date of this judgment, the Court will hear the parties on any order for costs.

**********

Endnotes

Decision last updated: 31 March 2022

Medium Neutral Citation:	Attorney General for New South Wales v Clark; Clark v State of New South Wales [2022] NSWSC 361
Hearing dates:	21 March 2022
Date of orders:	31 March 2022
Decision date:	31 March 2022
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	(1) The State of New South Wales is removed from these proceedings as a defendant; (2) The plaintiff's motions of 11 January 2022 and 9 March 2022 seeking the addition of parties and a cause of action is dismissed; (3) To the extent sought by the Attorney General and applied for within seven days of the date of this judgment, the Court will hear the parties on any order for costs.
Catchwords:	CIVIL PROCEDURE – Summons for Judicial Review and Appeal of Refusal of Parole – Joinder of cause of action in negligence – consequential joinder of parties – Removal of party – overriding purpose – case management – joinder refused – party removed
Legislation Cited:	Civil Liability Act 2002 (NSW), Part 2A Civil Procedure Act 2005 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW), s 155 Felons (Civil Proceedings) Act 1981 (NSW), s 4 Supreme Court Act 1970 (NSW), s 23 Crimes (Appeal and Review) Act 2001 (NSW), Part 7 Uniform Civil Procedure Rules 2005 (NSW), r 6.24, 6.27, 6.29
Cases Cited:	Application by Peter Frederick Clark [2021] NSWSC 1363 Clark v Attorney General of New South Wales [2019] NSWSC 1277 Clark v Attorney General of New South Wales [2020] NSWCA 70 Clark v R (No 2) [2015] NSWCCA 271 Clark v R [2014] NSWCCA 236 Clark v R [2015] NSWCCA 265 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 Peter Frederick Clark v The Queen [2016] HCASL 79 PFC v R (No 2) [2014] NSWCCA 241 PFC v R [2011] NSWCCA 275
Category:	Procedural rulings
Parties:	Attorney General’s motion of 14 December 2021: Attorney General for New South Wales (Applicant) Peter Frederick Clark (Respondent) Plaintiff’s motions of 11 January 2022 and 9 March 2022: Peter Frederick Clark (Applicant) State of New South Wales (First Respondent) State Parole Authority (NSW) (Second Respondent) Commissioner for Corrective Services (NSW) (Third Respondent) Attorney General for New South Wales (Fourth Respondent)
Representation:	Attorney General’s motion of 14 December 2021: Counsel: I Fraser (Applicant) Self-represented (Respondent) Solicitors: Crown Solicitor’s Office (Applicant) Self-represented (Respondent) Plaintiff’s motions of 11 January 2022 and 9 March 2022: Counsel: Self-represented (Applicant) No appearance (First Respondent) Submitting appearance (Second Respondent) No appearance (Third Respondent) I Fraser (Fourth Respondent) Solicitors: Self-represented (Applicant) No appearance (First Respondent) Submitting appearance (Second Respondent) No appearance (Third Respondent) Crown Solicitor’s Office (Fourth Respondent)
File Number(s):	2021/314531