Clark v Robards - [2016] NSWCA 187

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Clark v Robards [2016] NSWCA 187
Hearing dates: 21, 24 March 2016
Decision date: 09 August 2016
Before: Basten JA at [1];
Simpson JA at [13];
Emmett AJA at [14].
Decision:
1. The appeal be dismissed.
2. The appellant pay the costs of the appeal of Timothy Robards, Terrence Robards and the State of New South Wales.

Catchwords:
APPEAL – summary dismissal for want of due despatch – where considerable delay in proceedings due to appellant being involved in other proceedings – whether this delay should be taken into account – where appellant given substantial opportunity to produce a properly pleaded claim – Uniform Civil Procedure Rules 2005 (NSW), r 12.7
PRACTICE AND PROCEDURE – claims for damages – failure to prosecute – claims struck out – whether satisfactory explanation justifying delay – relevance of criminal proceedings – difficulties flowing from incarceration - pleadings struck out – opportunity to replead – whether error in order striking out claims
Legislation Cited: Civil Procedure Act 2005 (NSW),s 64(2)
Crown Proceedings Act 1988 (NSW)
Felons (Civil Proceedings) Act 1981 (NSW), s 4
Law Reform (Vicarious Liability) Act 1983 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 13.4, 14.28
Cases Cited: Clark v Robards [2010] NSWSC 522
Clark v Robards [2015] NSWCA 140
Clark v State of New South Wales [2006] NSWSC 673
Clark v State of New South Wales [2012] NSWCA 139
Clark v State of New South Wales [2014] NSWSC 742 Clark v State of New South Wales [2014] NSWSC 801
Category: Principal judgment
Parties: Peter Frederick Clark (Appellant)
Timothy Neil Robards (First Respondent)
Terrence Lloyd Robards (Second Respondent)
State of New South Wales (Third Respondent)
Representation:
Counsel:
Self-represented (Appellant)
M Heath / A Kaylinger (Amicus Curiae)
P M Wass SC, A N Williams (Third Respondent)
Solicitors:
Self-represented (Appellant)
Merrick Spicer & Associates (First and Second Respondents)
Crown Solicitors (Third Respondent)

File Number(s): 2014/164527
Publication restriction: Any person seeking to publish or broadcast the contents of this judgment, or any part thereof, should note that there is a prohibition on publishing or broadcasting information which identifies or is likely to lead to the identification of Timothy Robards in a way that connects him with the criminal proceedings brought against the applicant. The prohibition may be found in s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2014] NSWSC 742

Date of Decision:

17 June 2014

Before:

Hidden J

File Number(s):

2005/269279

judgment

BASTEN JA: It is now more than 14 years since 2002 when the applicant, Peter Frederick Clark, commenced the first proceedings seeking damages from the State with respect to his arrest and prosecution on three sets of charges. In 2005 separate proceedings were commenced against two individual respondents, and the State, alleging numerous instances of unlawful conduct.
These proceedings have had a long and tortuous history, which is recounted…

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.

Continue reading Clark v Robards

Details

AGLC: Clark v Robards [2016] NSWCA 187
Case: [2016] NSWCA 187
Decision Date: 09 August 2016

CaseChat Overview and Summary

The appeal in *Clark v Robards* concerned an application for summary dismissal of proceedings for want of due despatch. The appellant, Mr Clark, sought to appeal an order striking out his claims for damages. The respondents were Timothy Robards, Terrence Robards, and the State of New South Wales.

The primary legal issues before the Court of Appeal were whether the considerable delay in the proceedings, attributed in part to the appellant's involvement in other proceedings and incarceration, should have been taken into account when considering the application for summary dismissal. The court also considered whether the appellant had been given a substantial opportunity to produce a properly pleaded claim and whether the order striking out his claims constituted an error. The Uniform Civil Procedure Rules 2005 (NSW), specifically rule 12.7 concerning the striking out of pleadings, was relevant to the determination.

The Court of Appeal found that the appellant had been afforded substantial opportunities to rectify his pleadings and that the delay in prosecuting the proceedings was not adequately explained. The court noted that while difficulties flowing from incarceration could be relevant, they did not, in this instance, justify the prolonged delay and failure to prosecute. The court concluded that the primary judge had not erred in striking out the claims.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the costs of the appeal of the respondents.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the costs of the appeal of Timothy Robards, Terrence Robards and the State of New South Wales.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Clark v Robards [2016] NSWCA 187
Hearing dates:	21, 24 March 2016
Decision date:	09 August 2016
Before:	Basten JA at [1]; Simpson JA at [13]; Emmett AJA at [14].
Decision:	1. The appeal be dismissed. 2. The appellant pay the costs of the appeal of Timothy Robards, Terrence Robards and the State of New South Wales.
Catchwords:	APPEAL – summary dismissal for want of due despatch – where considerable delay in proceedings due to appellant being involved in other proceedings – whether this delay should be taken into account – where appellant given substantial opportunity to produce a properly pleaded claim – Uniform Civil Procedure Rules 2005 (NSW), r 12.7 PRACTICE AND PROCEDURE – claims for damages – failure to prosecute – claims struck out – whether satisfactory explanation justifying delay – relevance of criminal proceedings – difficulties flowing from incarceration - pleadings struck out – opportunity to replead – whether error in order striking out claims
Legislation Cited:	Civil Procedure Act 2005 (NSW),s 64(2) Crown Proceedings Act 1988 (NSW) Felons (Civil Proceedings) Act 1981 (NSW), s 4 Law Reform (Vicarious Liability) Act 1983 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 13.4, 14.28
Cases Cited:	Clark v Robards [2010] NSWSC 522 Clark v Robards [2015] NSWCA 140 Clark v State of New South Wales [2006] NSWSC 673 Clark v State of New South Wales [2012] NSWCA 139 Clark v State of New South Wales [2014] NSWSC 742 Clark v State of New South Wales [2014] NSWSC 801
Category:	Principal judgment
Parties:	Peter Frederick Clark (Appellant) Timothy Neil Robards (First Respondent) Terrence Lloyd Robards (Second Respondent) State of New South Wales (Third Respondent)
Representation:	Counsel: Self-represented (Appellant) M Heath / A Kaylinger (Amicus Curiae) P M Wass SC, A N Williams (Third Respondent) Solicitors: Self-represented (Appellant) Merrick Spicer & Associates (First and Second Respondents) Crown Solicitors (Third Respondent)
File Number(s):	2014/164527
Publication restriction:	Any person seeking to publish or broadcast the contents of this judgment, or any part thereof, should note that there is a prohibition on publishing or broadcasting information which identifies or is likely to lead to the identification of Timothy Robards in a way that connects him with the criminal proceedings brought against the applicant. The prohibition may be found in s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2014] NSWSC 742 Date of Decision: 17 June 2014 Before: Hidden J File Number(s): 2005/269279