Clark v Attorney General for NSW - [2023] NSWSC 1045

Supreme Court

New South Wales

Medium Neutral Citation: Clark v Attorney General for NSW [2023] NSWSC 1045
Hearing dates: 2 November 2022
Date of orders: 31 August 2023
Decision date: 31 August 2023
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Prayer 3 of the plaintiff’s further amended summons filed 13 September 2022 be dismissed pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW).
(2) Prayer 4 of the plaintiff’s further amended summons filed 13 September 2022 be dismissed pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW).
(3) Proceedings otherwise dismissed.
(4) Liberty to apply in respect of costs.

Catchwords:
CIVIL PROCEDURE — defendant’s application for summary judgment — plaintiff was convicted by a jury for child sexual related and perjury offences — plaintiff has engaged in various review process, including appeals and a Part 7 inquiry — plaintiff seeks to invoke a fraud jurisdiction of the Court to set aside convictions — whether the plaintiff’s application is an abuse of process — consideration of the Court’s jurisdiction in relation to fraud — plaintiff’s allegations of fraud are mere assertions — not satisfied that the common law division has the power to set aside the conviction of a jury by way of judicial review — the plaintiff has repeatedly agitated the issue to this litigation — held that the plaintiff’s application is an abuse of process

Legislation Cited:
Crimes (Appeal and Review) Act 2001 (NSW), Part 7
Criminal Appeal Act 1912 (NSW) s 6
Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 36.15

Cases Cited:
Application by Peter Frederick Clark pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 1364
Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
Clark v Attorney General (NSW) [2022] NSWCA 231
Clark v R [2015] NSWCCA 265
Clark v R [2021] NSWCCA 8
Director of Public Prosecutions v Mosely (2013) 275 FLR 140; [2013] NTSC 8.
Grierson v The King (1938) 60 CLR 431; [1938] HCA 45
PFC v The Queen (No 2) [2014] NSWCCA 241
R v Stanley [2015] 1 Qd R 118; [2014] QCA116; (2014) 241 A Crim R 73
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Category: Procedural rulings
Parties: Peter Frederick Clark (Plaintiff)
Attorney General for NSW (Defendant)
Representation:
Counsel:
Self Represented (Plaintiff)
I Fraser (Defendant)
Solicitors:
Self Represented (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s): 2021/314531

JUDGMENT

By a document styled amended summons filed electronically on 26 November 2021, the plaintiff, Mr Clark, advanced six prayers for relief against the State of New South Wales and the State Parole Authority of New South Wales (“SPA”). By further amended summons dated 11 January 2022, prayers for relief expanded to nine and the defendants against whom relief was sought expanded to four to include the Commissioner for Corrective Services and the Attorney General for the State of New South…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWSC 1045
Decision Date: 31 August 2023

CaseChat Overview and Summary

In the case of Clark v Attorney General for NSW, the plaintiff, a former prisoner, sought to set aside his criminal convictions through a claim for judicial review. The defendant, the Attorney General of New South Wales, applied for summary judgment on the plaintiff's claim. The plaintiff had already pursued various avenues of appeal and review, including a Part 7 inquiry, and now sought to invoke the fraud jurisdiction of the Court to set aside his convictions. The court was required to decide whether the plaintiff's application was an abuse of process and whether the Court had the power to set aside the convictions of a jury by way of judicial review.

The court considered the nature of the plaintiff's allegations and found them to be mere assertions without any evidentiary support. The court noted that the plaintiff had repeatedly agitated the issue of his convictions through various legal proceedings, and that the common law division did not have the power to set aside the convictions of a jury by way of judicial review. The court held that the plaintiff's application was an abuse of process, as it sought to relitigate issues that had already been determined by the courts. The court found that the plaintiff's claim was not within the scope of the Court's fraud jurisdiction and that it was an improper use of the legal system.

The court granted the defendant's application for summary judgment and dismissed the plaintiff's claim. The court found that the plaintiff's application was an abuse of process and that it was not satisfied that the common law division had the power to set aside the convictions of a jury by way of judicial review. The court emphasised the importance of respecting the finality of criminal convictions and the need to avoid unnecessary litigation. The court's decision serves as a reminder that the courts will not tolerate attempts to relitigate issues that have already been determined, and that the legal system must be used properly and for legitimate purposes.

Orders