Clark v Robards

[2015] NSWCA 140

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Clark v Robards [2015] NSWCA 140

Hearing dates:

5 May 2015

Decision date:

22 May 2015

Before:

Beazley P at [1];
Basten JA at [2]

Decision:

(1)Grant leave to appeal against so much of the judgment of Hidden J as dismissed paragraphs of the proposed amended statement of claim which dealt with causes of action to be found in the 2005 pleading, other than conspiracy charge (Part A, par 10), considered by Harrison J in June 2010;

(2)Otherwise dismiss the summons seeking leave to appeal;

(3)Costs of the application to be costs in the appeal.

Catchwords:

APPEAL – application for leave – pleading struck out summarily – want of due despatch – other older proceeding allowed to stand – no objection from two of three defendants – possible inconsistency of approach

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 13.4, 14.28

Cases Cited:

Clark v Robards [2010] NSWSC 522
Clark v State of New South Wales [2006] NSWSC 673; 66 NSWLR 640
Clark v State of New South Wales [2014] NSWSC 742
Clark v State of New South Wales [2014] NSWSC 801
Clark v State of New South Wales [2015] NSWSC 246

Category:

Procedural and other rulings

Parties:

Peter Frederick Clark (Applicant)
Timothy Neil Robards (First Respondent)
Terrence Lloyd Robards (Second Respondent)
State of New South Wales (Third Respondent)

Representation:

Counsel:
Applicant Self-represented
Mr A N Williams (Third Respondent)

Solicitors:
Applicant Self-represented
R Kelly – Acting Crown Solicitor (Third Respondent)

File Number(s):

CA 2014/164527

 Decision under appeal 

Court or tribunal:

Supreme Court

Citation:

[2014] NSWSC 742

Date of Decision:

17 June 2014

Before:

Hidden J

File Number(s):

2002/69098; 2005/269279

Judgment

1. BEAZLEY P:    I agree with Basten JA.

2. BASTEN JA: On 14 June 2005 the applicant, Peter Frederick Clark, commenced proceedings in the Common Law Division claiming damages against three defendants. On 17 June 2014 Hidden J summarily dismissed the proceedings. [1] From that judgment the applicant sought leave to appeal.

   1. Clark v State of New South Wales [2014] NSWSC 742.

3. The statement of claim had been amended on a number of occasions since it was originally filed, including, confusingly, to make claims in relation to conduct which occurred up to five years after it was filed. Nevertheless, the defendants have remained the same, the first and second defendants being Timothy Neil Robards and Terrence Lloyd Robards. The first defendant was a police officer, the second defendant his father. The third defendant is the State of New South Wales.

4. The claims have had a chequered interlocutory history to which further reference will be made below. The order made by Hidden J dismissing the proceedings is properly characterized as interlocutory; it is not in dispute that a challenge to a summary dismissal on the pleadings requires leave.

Procedural background

5. The procedural background is complicated by the fact that the applicant had earlier instituted separate proceedings for damages, to which the State of New South…