Clark v Robards

[2010] NSWSC 522

CITATION:	Clark v Robards [2010] NSWSC 522
HEARING DATE(S):	30 April 2010
JUDGMENT DATE :	4 June 2010
JUDGMENT OF:	Harrison J
DECISION:	Statement of claim struck out with leave to replead.
CATCHWORDS:	PRACTICE & PROCEDURE – summary dismissal and strike out – UCPR 13.4 and 14.28 – whether triable issue or absolutely hopeless – whether pleadings disclose a reasonable cause of action, have a tendency to cause prejudice, embarrassment or delay – statement of claim struck out – plaintiff given leave to replead
LEGISLATION CITED:	Crown Proceedings Act 1988 Felons (Civil Proceedings) Act 1981 Law Reform (Vicarious Liability) Act 1983 Uniform Civil Procedure Rule 2005
CATEGORY:	Procedural and other rulings
CASES CITED:	Agar v Hyde [2000] HCA 41; 201 CLR 552 Clark v State of New South Wales [2006] NSWSC 673; (2006) 66 NSWLR 640 Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 McGuirk v University of New South Wales [2010] NSWCA 104
PARTIES:	Peter Frederick Clark (Plaintiff) Timothy Neil Robards (First Defendant) Terrence LLoyd Robards (Second Defendant) State of New South Wales (Third Defendant)
FILE NUMBER(S):	SC 2005/269279
COUNSEL:	P M Sibtain (Third Defendant)
SOLICITORS:	I V Knight, Crown Solicitor (Third Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

4 June 2010

2005/269279 Peter Frederick Clark v Timothy Neil Robards & Ors

JUDGMENT

1 HIS HONOUR: The third defendant sought by notice of motion filed on 12 August 2008 to strike out the plaintiff's statement of claim. Through no fault of the parties, that motion was not dealt with before that document had been succeeded by a series of amended versions. By the time the motion was ready for hearing, the current version of the statement of claim had become the second further amended statement of claim. That document was filed in Court on 30 April 2010. In anticipation of the plaintiff being permitted to rely on that pleading, the third defendant had prepared an amended notice of motion. That document was also filed in Court on 30 April 2010.

2 In this way, the third defendant's application became, and was treated by the parties as, one for orders that the second further amended statement of claim be dismissed generally pursuant to UCPR 12.7, dismissed pursuant to UCPR 13.4(1)(a), b) or (c) or struck out pursuant to UCPR 14.28(1)(a), (b) or (c). These reasons deal with that application.

Background

3 The plaintiff is serving a period of imprisonment. He is not legally represented. The proceedings commenced by him relate, at least in part, to the events that have led to his current status. Both the form and content of the pleadings that are attacked, and the alacrity with which the proceedings have been prosecuted by the plaintiff, are a reflection of the fact that he appears for himself without legal assistance and that he is necessarily restricted or limited in his ability to gain access to resources and materials that he maintains are necessary for the proper conduct of his case. These matters are not in dispute but need constantly to be borne in mind.

4 The second further amended statement of claim is 147 paragraphs in length. It cannot conveniently be summarised. It purports to propound claims that are formulated in trespass, conspiracy, defamation and negligence. The case against the third defendant commences at paragraph 30, and is said to be brought pursuant to s 6 of the Law Reform (Vicarious Liability) Act1983 and s 8 of the Crown Proceedings Act 1988 as a party vicariously liable for the torts committed by a person in the service of the Crown. In particular, the plaintiff nominates thirteen former members of the New South Wales Police Service as having committed the acts relied upon.

5 The plaintiff's original statement of claim was filed on 14 June 2005. It recited that some five years beforehand, a victim of an alleged sexual assault by the plaintiff had refused to give evidence against the plaintiff and the case collapsed. The plaintiff went on to allege that certain police officers had committed a trespass against him while executing a search warrant apparently involved with those proceedings. The first and second defendants would appear now to have taken the view that they should no longer respond to the plaintiff's allegations, or possibly cannot afford to do so, and have never appeared at any time since the proceedings first came before me for directions and case management.

6 The second further amended statement of claim is a confronting document. It contains very serious allegations of misconduct by serving police officers including conspiracy, destruction and concealment of evidence, intimidation, soliciting bribes, malicious prosecution, wrongful arrest, false imprisonment, perjury, suborning witnesses, perverting the course of justice and defamation. These allegations are not properly pleaded or particularised. The defamation allegations are bad on their face to the extent that they contain no allegation or particulars of publication by any named defendant. There is an associated and probably irreparable failure to comply with any part of UCPR 15.19(1) or (2) relating to such a claim.

7 There are also a series of super-added allegations against Justice Health and the Department of Justice and Attorney General, the Commissioner for Corrective Services and the Department of Corrective Services. The case against Justice Health is notionally pleaded in negligence concerning what appears to be an allegation of instances of the maladministration of drugs to the plaintiff while in custody. These allegations are also not properly pleaded or particularised.

8 The case against the Corrective Services defendants is also notionally framed in negligence and alleges in effect that the plaintiff was not adequately or sufficiently accommodated or protected whilst in custody away from fellow prisoners who attacked him and left him unconscious. He also alleges that he has been denied and refused access to computers and like equipment in "pompous, arrogant and contumelious disregard" of recommendations made by me that he should be given access to these things. The plaintiff alleges that the Corrective Services defendants are in these circumstances somehow liable to him in damages.

9 In support of all of its claims for relief, the third defendant relied upon the affidavit of Christine Cody sworn 26 February 2010. Ms Cody is a solicitor employed by the Crown Solicitor's Office and has the carriage of this matter on behalf of the third defendant. The third defendant also relied upon two earlier affidavits of Sarah Therese Ryan sworn 10 March 2008 and 12 August 2008 respectively.

10 It is unnecessary to record the complete history of the matter in the extensive detail referred to in those affidavits. Some only of that history is recorded in what follows. Significant for present purposes is the fact that on 8 December 2008 I made an order by consent that the plaintiff file any further amended statement of claim upon which he wished to rely by no later than 23 January 2009. The matter was adjourned for further directions on 6 February 2009.

11 The third defendant was served with a further amended statement of claim on 13 January 2009. It added three new defendants and three new causes of action. Two defendants were removed. On 14 January 2009 the plaintiff provided the third defendant with a letter purporting to provide corrections to the document. On 18 January 2009 the third defendant received a letter from the plaintiff proposing a consolidation of his District Court criminal matters with these proceedings.

12 On 3 February 2009 the third defendant sought further and better particulars of the further amended statement of claim. The plaintiff provided these in some detail by letter dated 20 February 2009. However, the third defendant successfully contended that the length of the particulars was not necessarily coextensive with their adequacy and obtained an order from the Registrar on 23 February 2009 that the plaintiff provide what the Registrar's order describes as "a proper response" by 16 March 2009. The plaintiff was also ordered to provide an evidentiary statement by the same date.

13 On 23 March 2009 the matter came before the Registrar for a status conference. Among other things, the Registrar granted the parties leave to approach my Associate with a view to obtaining a hearing date for the proceedings after 24 April 2009. Further correspondence followed from the plaintiff in curious terms that are not presently important. In the end result the plaintiff indicated that his (then) pending criminal trial had been scheduled to commence on 11 May 2009 with an estimated duration of eight weeks. The third defendant in those circumstances requested the Registrar to list the matter on 10 August 2009 in order to enable the plaintiff to consider his position.

14 By letter dated 17 July 2009 the plaintiff informed the third defendant of a number of matters including the following:

"I note the matter is listed for status conference on 10 August 2009. On that day I will seek leave to amend my further amended statement of claim adding the 5 counts I was found not guilty of before Judge Norrish recently."

15 The matter returned to me on 10 August 2009. Among other things I directed the plaintiff to furnish the third defendant with any notice of motion and proposed amended pleading upon which he proposed to rely by 11 September 2009, and I listed the matter before me on 14 September 2009 for directions. Before that occurred the third defendant wrote two letters to the plaintiff. The first is dated 9 September 2009 and is in the following relevant terms:

"I refer to the above matter and acknowledge receipt of the following documents…

1. Unfiled Pleadings against the Department of Corrective Services

It is my understanding from the Directions Hearing of 10 August 2009 that you intend to amend your pleadings to add further counts of malicious prosecution against NSW Police Force. Accordingly, his Honour Justice Harrison ordered that you file and serve a Notice of Motion seeking leave to do so, together with a proposed amended pleading by 11 September 2009. To date no such Notice of Motion or pleading has been received in my office. Could you please forward a proper proposed amended pleading and a Notice of Motion in accordance with his Honour's orders.

I note however that you have attempted to join the Department of Corrective Services and Justice Health to the current proceedings by way of an unsealed 'Interim Part of Second Further Amended Statement of Claim'. I make the initial observation that the causes of action alleged against both of these two bodies are completely unrelated to the causes of action alleged in the instant proceedings.

I advise that I have recently been provided with instructions to act on behalf of the Department of Corrective Services ('the Department'). However, I am still awaiting instructions from Justice Health.

In relation to the claims sought to be made against the Department, I note as follows:


(a) The Felons (Civil Proceedings) Act 1981 provides that a person in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application. Instead of seeking the Court's leave to commence separate proceedings against the Department, you have sought to amend the current proceedings to include a claim against the Department, without seeking the court's leave. Accordingly, this amendment will be opposed.

(b) The Department of Corrective Services will not consent to a joint hearing of the proposed claim against them with the current proceedings 20185/05. In this regard, the causes of action appear to be unconnected with no related issues of law or fact, and there would be no overlap of witnesses. Joining the two distinct causes of action would lead to an unnecessary increase in costs for the current defendants and the Department as a proposed defendant, as all defendants will be required to consider material completely unrelated to their cause of action.

(c) The Offender Damages provisions of the Civil Liability Act 2002 appear to be relevant to your proposed claims. One of the requirements imposed by that Act is that a person seeking an award of personal injuries damages for injuries allegedly received whilst the person is an offender in custody is that the degree of permanent impairment of the offender must be at least 15% (section 26C). In the event that you intend to make the necessary application to proceed with this claim, please forward evidence of the degree of alleged impairment forthwith.


I would urge you to give proper consideration to the above matters before seeking to commence any proceedings against the Department…

If you do not intend to seek leave to file and serve an amended pleading against the NSW Police Force, I will press for proper responses to the further and better particulars requested in my letter dated 3 February 2009. I note that Registrar Bradford has previously made an order in this regard, namely on 23 February last you were ordered to provide such particulars by 16 March 2009. I look forward to hearing from you as soon as possible."

16 The second letter is dated 10 September 2009 and is in these terms:

"I refer to my letter addressed to you dated 9 September 2009 and I advise that I have now received instructions to act on behalf of Justice Health in relation to your unfiled Interim Part of Second Further Amended Statement of Claim dated 23 August 2009.

The issues raised in my letter of 9 September in relation to the claim against the Department of Corrective Services apply equally in relation to the claim against Justice Health. For the avoidance of doubt, I make the following comments:


1. You have attempted to join both the Department of Corrective Services and Justice Health to the current proceedings by way of an unsealed 'Interim Part of Second Further Amended Statement of Claim'. I make the initial observation that the causes of action alleged against both of these two bodies are completely unrelated to the causes of action alleged in the instant proceedings, as well as being completely unrelated to each other.

2. The Felons (Civil Proceedings) Act 1981 provides that a person in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application. Instead of seeking the Court's leave to commence separate proceedings against Justice Health, you have sought to amend the current proceedings to include a claim against Justice Health, without seeking the court's leave. Accordingly, this amendment will be opposed.

3. Justice Health will not consent to a joint hearing of the proposed claim against them with the current proceedings 20185/05. In this regard, the causes of action appear to be unconnected, with no related issues of law or fact, and there would be no overlap of witnesses. Joining the two distinct causes of action would lead to an unnecessary increase in costs for the current defendants and Justice Health as a proposed defendant, as all defendants will be required to consider material completely unrelated to their cause of action.

4. The Offender Damages provisions of the Civil Liability Act 2002 appear to be relevant to your proposed claims. One of the requirements imposed by that Act is that a person seeking an award of personal injuries damages for injuries allegedly received whilst the person is an offender in custody is that the degree of permanent impairment of the offender must be at least 15% (section 26C). In the event that you intend to make the necessary application to proceed with this claim, please forward evidence of the degree of alleged impairment forthwith.

I would urge you to give proper consideration to the above matters before seeking to commence any proceedings against Justice Health."

17 On 14 September 2009 the plaintiff withdrew any reliance upon what he described as the "interim part of the second further amended statement of claim". He filed in Court a notice of motion seeking orders against the Commissioner for Corrective Services and the Department of Corrective Services, as well as the third defendant, seeking orders for delivery of six archive boxes of his files, that he be permitted to keep them in his cell, that he be given access to and use of a laptop computer with Microsoft Word, as well as paper and printing facilities and pens and other stationery. Other orders were sought as well. The transcript of what transpired on that day included the following exchanges:

"HIS HONOUR: Let's just take it a step at a time. Do I take it that in some fashion it is your application that this handwritten document be treated as a second further amended statement of claim but to be read in conjunction with its predecessor as the now current pleading?

PLAINTIFF: Yes.

HIS HONOUR: Ms Sibtain, what's your attitude to that?

SIBTAIN: My attitude is so far as the claims against Justice Health and the Department of Corrective Services, we object to the joining of those parties and the adding of this material. It is quite a separate cause of action. The negligence arising out of the assault, for example, is quite a different matter to all the other matters that are in the current pleading. The current pleading adds, so far as one can tell, although I don't know whether they have been served, two further defendants already which haven't been the subject of a request for particulars, haven't been dealt with, I don't know whether or not those defendants have even been served. Particulars have not been answered in relation to that pleading. It is already an unwieldy document with causes of action not properly pleaded and to the extent that we have been able to try and deal with that matter by requesting particulars we have, but to further add--

HIS HONOUR: Despite the fact that these causes of action post-dated the filing of the original statement of claim, not that there is a limitation point, but they arise out of facts that are later in time than the events that form the basis of the original pleading.

SIBTAIN: Yes.

HIS HONOUR: Mr Clark, I realise you are not a lawyer, but the seventh and eighth defendants have been joined, subject to anything I say or what might happen, by you pursuant to causes of action you've pleaded that are unrelated to the principal litigation. They are related in the sense that they arise out of your incarceration, but they are unrelated to the original events.

PLAINTIFF: Well, I disagree with that. I submit that they are related. The assault is related to the first and--

HIS HONOUR: How can your assault in gaol be related to a claim, we are told in broad terms, described as one for malicious prosecution against policemen? How can there be a connection between the two in a legal sense?

PLAINTIFF: It's difficult to do it on the spur of the moment.

HIS HONOUR: I reckon it would be difficult to do it with a fortnight's research, with respect to you.

PLAINTIFF: I filed the statement of claim in 2005.

HIS HONOUR: Yes, part of my point.

*****


HIS HONOUR: The seventh or eighth defendants are no more connected as a result of anything that happened when you left here in late 2007 than they are by reason of anything that's happened more recently. If you have a cause of action and you want to prosecute it you must maintain a certain focus and you don't just fire off a shotgun in the direction of anybody who offends you or your sensibilities and think you can join them to a cause of action as a vehicle travelling through the legal process and just add more passengers. You can't do that.

PLAINTIFF: I was trying to expedite this matter simply by adding those matters to it because I am still trying to get the paperwork and access to a computer.

HIS HONOUR: Well, those are separate issues. I realise that in your present circumstances there are inconveniences and frustrations, but the solution to them is not to add more parties to a discrete proceeding in the hope that somehow it will all be dragged along and heard together."

18 On 30 September 2009 the third defendant wrote to the plaintiff. Part of that letter is in these terms:

"I refer to my letters to you dated 9 and 10 September 2009 and the directions hearing before his Honour Justice Harrison on 14 September 2009.

2. Unfiled pleadings against the Department of Corrective Services ('the Department')

In light of my letter to you dated 9 September 2009, and your withdrawal of the Interim Part of Second Further Amended Statement of Claim against the Department, I note that there are no proceedings on foot against the Department. On 14 September 2009, you indicated that you would be making a 'new' claim. No such new claim has been filed in these proceedings nor have you sought leave to file any such claim pursuant to the Felons (Civil Proceedings) Act 1981.

As the Department is not a party to these proceedings, your Notice of Motion handed up to the Court on 14 September 2009, seeking orders against, inter alia, the Department, is not applicable to the current proceedings. You will be aware that the Court has, on numerous occasions, informed you that it does not have jurisdiction to make orders against the Department as it is not a party to the proceedings.

Should you intend to proceed with a claim against DCS please insure that the procedural requirements imposed by the Felon (Civil Proceedings) Act 1981, Civil Liability Act 2002 and Uniform Civil Procedure Rules are complied with.

3. Unfiled pleadings against Justice Health

The above points made in relation to the Department apply equally to any proposed proceedings against Justice Health. I reiterate that in the event that you seek to proceed with a claim against Justice Health, you should ensure that the above-mentioned procedural requirements are complied with."

19 On 26 November 2009 I heard the plaintiff's notice of motion filed on 14 September 2009. I dismissed the motion and reserved costs. In giving judgment on that day I made the following comments:

"I should indicate immediately that nothing I am prepared or able to say should be taken to be support for any application by Mr Clark for orders that the third defendants or the Victim Services Department should be temporarily restrained from paying compensation, or that cell searches are to be carried out responsibly and recorded on video, or that the plaintiff be housed at a particular institution, or part of an institution, as these are matters, as far as I can determine, clearly within the discretion of the Governor or Manager of the correctional institution in which Mr Clark may find himself from time to time.

However, limiting myself to the balance of the matters, it does seem to me if it is administratively and physically possible to do so that Mr Clark should be given access, as often as possible, to all such administrative assistance including stationery, pens, paper, computers, photocopiers, and other matters as may assist him in the preparation and conduct of any proceedings in which he is engaged.

From this Court's point of view documents in proceedings in this Court that are filed in proper form, printed rather than handwritten and otherwise in conformity with the rules of Court are to be preferred in all cases over documents such as many of the documents filed by the plaintiff in this case, which are handwritten, difficult for Mr Clark to reproduce, and in some cases difficult to read."

20 I also made orders by consent that the plaintiff file and serve a second further amended statement of claim by 20 January 2010 and that he answer the third defendant's request for particulars dated 3 February 2009 by 29 January 2010. I ordered the plaintiff to serve his evidentiary statement by 30 January 2010 and the third defendant to file and serve any evidence in support of its motion to dismiss the proceedings dated 12 August 2008 by 25 February 2010. I listed that motion for hearing before me on 30 April 2010, when it was heard.

21 Before that occurred, however, the third defendant wrote to the plaintiff on 23 February 2010 as follows:

"I refer to your recent correspondence and I provide the following response …

Your letter dated 23 January 2010, received 27 January 2010

This letter served a copy of your 'Part B Second Further Amended Statement of Claim' ('the Part B document') filed 19 January 2010, and purports to join Justice Health and the State of New South Wales (acting on instructions from the 'Department of Corrective Services') to the current proceedings.

I note that Justice Health, and the State of New South Wales (acting on instructions from Corrective Services NSW) are not parties to the proceedings and that these entities, as well as the 3rd defendant, object to their joinder and to the introduction of the alleged causes of action. You have previously attempted to join the said entities by way of your 'Interim Part of Second Further Amended Statement of Claim', which you withdrew at court on 14 September 2009, after objection by the 3rd defendant and Justice Health, and the State of New South Wales (acting on instructions from Corrective Services NSW).

Prior to setting out my response to the Part B document, I advise that I have been instructed by the State of New South Wales (acting on instructions from Corrective Services NSW) that the recommendations made by his Honour Justice Harrison have been noted and considered and that your requests are being accommodated to the extent permitted within the security measures of the MRRC.

In relation to the Part B document, I have been instructed to respond to the same on behalf of the 3rd defendant, namely the State of New South Wales (acting on instructions from the New South Wales Police Force), as well as by Justice Health, and the State of New South Wales (acting on instructions from Corrective Services NSW).

I provide the following specific objections to the Part B document as follows:

1. The Part B document seeks orders in similar terms to your Notice of Motion heard and dismissed by his Honour Mr Justice Harrison on 26 November 2009. You did not seek leave to appeal against the dismissal of your Notice of Motion and therefore cannot re-agitate these issues.

2. You have failed to comply with the requirements of the Felons (Civil Proceedings) Act 1981 by attempting to make this new claim without the leave of the Court. Further, the 3rd defendant as well as Justice Health and the State of New South Wales (acting on instructions from Corrective Services NSW) will object to such leave being granted on the grounds that the Court would not be satisfied that the proceedings are not an abuse of process, nor that there is prima facie ground for the proceedings;

3. Although there have been orders that you file and serve an Amended Statement of Claim, this was not to allow you to make such a claim against Justice Health and the State of New South Wales (acting on instructions from Corrective Services NSW). You did not have leave of the court to file this specific amended claim, and the 3rd defendant as well as Justice Health and the State of New South Wales (acting on instructions from Corrective Services NSW) will object to such leave being granted;

4. The Part B document attempts to join parties and make claims that are irrelevant to the proceedings currently before the court;

5. The Part B document refers to alleged acts and omissions of medical staff of Justice Health, however names as the seventh defendant the State of New South Wales. It is alleged by you that the State of New South Wales is liable for the acts and omissions of officers of the medical staff of Justice Health pursuant to the Law Reform Vicarious Liability Act 1983. However, Justice Health is a Statutory Health Corporation established under the Health Services Act (NSW) 1997, and pursuant to s 45 of that Act, a legal claim against Justice Health should be brought against Justice Health in its corporate name.

6. The Part B document refers, inter alia, to alleged acts and omissions of Officers of the 'Department of Corrective Services'. As of 1 July 2009 under the Public Sector Employment and Management (Departmental Amalgamations) Order 2009 the Department of Corrective Services was amalgamated within the Department of Justice and Attorney General.

7. The claim is said to be for 'trespass – obstruction – intimidation', and revolves around your allegations that you have not had access to materials and a computer to prepare your claim. The Part B document contains no material facts that would support the alleged causes of action.

Finally, I note that on 26 November 2009 you consented to the following orders:

1. Plaintiff to file and serve a Second Further Amended Statement of Claim by 20 January 2010.

2. Plaintiff to answer the defendant's request for particulars dated 3 February 2009 by 20 January 2010.

3. Plaintiff to serve and file his evidentiary statement by 30 January 2010.

4. Defendant to file and serve any evidence in support of its motion to dismiss the proceedings dated 12 August 2008 by 25 February 2010.

5. Plaintiff to file and serve any evidence in reply by 20 March 2010.

6. Notice of Motion for dismissal listed for hearing at 9.30am on 30 April 2010.

In relation to the first order, I note that the Second Further Amended Statement of Claim was to specify further alleged counts of malicious prosecution. In relation to the 6th order, I confirm that Ms Sibtain of counsel informed the court on 26 November last that the Notice of Motion would have to be amended as it referred to an earlier version of your statement of claim.

I note that I have not been served with any documents in accordance with orders 1-3 above."

22 That was the state of affairs when I reserved my decision on the present application.

Consideration

23 UCPR 12.7 is relevantly as follows:

" 12.7 Dismissal of proceedings etc for want of due despatch

(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit."

24 From time to time since the commencement of the proceedings the plaintiff has been the subject of numerous criminal charges and, as already indicated, is presently serving a term of imprisonment. At least during the period of my involvement with this case the plaintiff has occasionally sought adjournments upon the basis that his principal focus was on the criminal matters with which he has been confronted. So much appears reasonable. The third defendant has generally consented to this course, although not without some understandable and increasing reluctance to do so the longer the matter has remained unresolved. As counsel for the third defendant put the matter in the course of her very helpful submissions, "it hasn't really been a question of [the plaintiff] not having the time to do it but rather perhaps either the will to do it or the ability to do it". However, taking into account that the plaintiff has been hampered in the timely and efficient conduct of these proceedings by his incarceration and the related need to focus his attention and limited resources on criminal charges facing him, as well as the third defendant's commendable and quite proper attitude to these things in the circumstances, I am not satisfied that it can be said that the plaintiff has failed to prosecute the proceedings with due despatch.

25 UCPR 13.4 is as follows:

" 13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:


(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,


the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1)."

26 The principles are well known and often repeated. As was explained in Agar v Hyde [2000] HCA 41; 201 CLR 552 by Gaudron J at [57]:

"The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."

27 The second further amended statement of claim is in such a form that it makes any proper assessment of its content difficult. I take it to be the third defendant's position on this application that the proceedings are incapable of formulation as a pleading in a proper way so that no matter what approach is taken the proceedings do not have any prospect of success and possibly also that they have no real prospect of resulting in a substantial remedy and involve unjustifiable expense or use of judicial resources. I acknowledge that the effect of an order under this rule is to bring the proceedings to an end at an interlocutory stage so that the exercise of the power conferred by the rule will only be appropriate where the defect in the plaintiff's claim is clearly established. There is a close analogy with the "triable issue" concept in the sense discussed in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 and elsewhere. The rule empowers the Court to make an order upon an examination of the pleadings if that examination shows that the case is absolutely hopeless or there is no possibility of the facts pleaded giving rise to a good cause of action: Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 90.

28 The application in this case has in effect been made on the pleadings. In such a case, where no evidence is adduced, the applicant for summary disposal must accept the truth of all allegations in the opposing pleading, including the ranges of meaning that the assertions of fact in that pleading are capable of bearing. Although the third defendant relied on the evidence to which I have referred, it was not evidence that sought to challenge the factual basis of the prima facie assertions that are capable of being derived from the pleading in its current form. The evidence relied on by the third defendant went more to the procedural aspects of the case, including delays that are said to have occurred, as well as some failures by the plaintiff to comply with the Felons (Civil Proceedings) Act 1981. In other words, this is not a case where the third defendant proffers evidence that, if accepted, would contradict the plaintiff's case taken at its highest. The evidence is wholly restricted to what has taken place in the course, and in the conduct, of the proceedings so far.

29 Nor was there substantial legal argument directed to demonstrating the hopelessness of the plaintiff's claim. That was to my observation the product of a quite proper recognition and acceptance by Ms Sibtain on behalf of the third defendant that at least some of the current pleading raises an arguable point of law. Subject to what appears below, the pleading for the most part describes a claim, or a series of claims, that cannot be characterised as hopeless or even as novel. Although it may be a considerable understatement, the pleading is on one view of the matter merely ill expressed and on an application for an order under this rule a liberal interpretation of the pleading should be given. In order to justify an order under this rule the putative offending pleading must be beyond saving by legitimate amendment. With the exception of the case pleaded in defamation, I do not consider that it is.

30 Frequent amendment is said to be a familiar feature of complex litigation. The same thing can often be said of cases where the plaintiff is not legally represented. This is such a case. Whether or not any further amendment ought to be permitted is dealt with below. The ability of any other amended pleading to withstand challenge in this case remains to be seen.

31 In my opinion, the case that has been pleaded by the plaintiff has at least identified his intention to sue the third defendant for the causes of action referred to at [6] above. With the exception of the case pleaded in defamation I consider that none is so obviously hopeless that it should be dismissed. The defamation pleading is wholly limited to the following paragraphs:

"76. In amplification of the above the plaintiff alleges that the media picked up the above matters and ran 'same' as a major editorial against the plaintiff. Including the Manning River Times December 2009 issues and because of this media reporting the plaintiff was seriously defamed.

77. That the defamation was a direct result of the aforesaid criminal prosecutions and convictions by the said police officers and that the defamation was caused by the criminality of the said police officers.

78. The imputations relied upon are but not limited to that the plaintiff is a serial paedophile the worst type of criminal in society, a child sex offender.

79. That by reason of the media attention and the relevant publications the plaintiff has been greatly injured in his reputation. That he has been held up to ridicule and contempt by the community at large.

80. That, by reason of the facts outlined above the plaintiff has suffered loss and damage for which the third defendant is liable."

32 In my opinion those paragraphs clearly indicate that the case in defamation is absolutely hopeless. The claim is certainly incapable of withstanding an attack pursuant to UCPR 14.28 but there is also no possibility of the facts pleaded giving rise to a good cause of action. There is no allegation that the third defendant published any of the material that the plaintiff contends defamed him or that the third defendant had any conceivable role in or connection to the alleged publication by others. There is no way of knowing what was published or precisely when. In my opinion so much of the second further amended statement of claim as pleads a case framed in defamation against the third defendant should be dismissed.

33 Subject to one matter, however, I am not satisfied that the third defendant has established that the balance of the case pleaded against it should also be dismissed. That matter concerns the relationship, if any, between the facts that the plaintiff promotes in support of his several causes of action in this case and the circumstances that were dealt with by Johnson J in Clark v State of New South Wales [2006] NSWSC 673; (2006) 66 NSWLR 640. The opening paragraph of his Honour's judgment in that case is as follows:

"The Plaintiff, Peter Frederick Clark, has commenced proceedings against the Defendant, the State of New South Wales, seeking damages for false imprisonment, false arrest, malicious prosecution and abuse of process. The Defendant is sued in respect of alleged acts or omissions of members of the New South Wales Police. On 11 October 2004, the proceedings were called on for hearing before Wood CJ at CL. The hearing did not commence. Senior counsel for the Plaintiff informed the Court that the Plaintiff possessed an audio cassette said to contain a record of a conversation between the Plaintiff and a police officer in which the police officer solicited a bribe from the Plaintiff. The tape was said to be of great significance to the proceedings. The case was adjourned to allow technical analysis of the tape for use at a future hearing of the matter and the Court gave directions for this purpose. Soon after, the Plaintiff destroyed the tape. The Defendant now seeks that the proceedings be stayed or dismissed alleging that the Plaintiff's conduct constitutes an abuse of process."

34 Neither the plaintiff nor the third defendant addressed me on the question of whether or not, or if so to what extent, any of the facts and circumstances upon which the plaintiff presently seeks to rely as the foundation for his variously pleaded causes of action are in whole or in part a replication of any of the events that were considered at great length and in commendable detail by his Honour. It would be a matter of some particular concern if there were even the slightest prospect that a failure to compare the facts in that case with those upon which the plaintiff now wishes to proceed were to result in two contradictory or conflicting decisions by two judges at the same level in this Court on the same or similar facts.

35 With the exception of the case pleaded in defamation I am not prepared therefore to make any final determination of the third defendant's application for orders pursuant to UCPR 13.4 until such time as I have been given the benefit of further argument on the matter from both sides. The final result in that case was affected by a particular circumstance that has not been referred to before me and its importance or relevance is presently unclear. However, of more pressing concern is the fact that the events in the case heard by his Honour conspicuously and somewhat troublingly appear to include many of the personalities and span much of the period that the plaintiff now wishes to rely on. It may in any event be important, or at the very least instructive, to consider his Honour's reasoning in the earlier case, and to have the parties' submissions upon it, before finally determining the third defendants application for a dismissal of the proceedings. I note that his Honour dismissed the earlier proceedings pursuant to the same rule. At present I consider that there is a disquieting redolence of the plaintiff's case to be found in the earlier proceedings, which requires an explanation, and I am disinclined to determine the present application until it has been provided.

36 I will require the parties to give consideration to these matters when the proceedings are back before me as anticipated at [46] and [47] below.

37 UCPR 14.28 is relevantly as follows:

" 14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:


(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court."

38 In coming to terms with the form of the second further amended statement of claim, and the third defendant's attack upon it, it is necessary to have regard to the plaintiff's present predicament. It is true that the rules of court and the essential niceties of pleading serve important functions in the efficient and economical conduct of litigation and that any departure from a strict compliance with either of them should ordinarily only be sought or permitted on a reasoned and principled basis. Such sentiments have only recently been notoriously and authoritatively reaffirmed by the High Court of Australia and more recently by the Court of Appeal in McGuirk v University of New South Wales [2010] NSWCA 104 per Young JA when his Honour said at [47] that "there must be limits to situations where the court puts aside basic principles because of a need to produce a quick or cheap result".

39 These things notwithstanding, the plaintiff in this case finds himself in circumstances that are wholly inimical to the conduct of almost any commercial or forensic task. As the many transcripts of what has occurred in this case over the years will reveal, and as judgments delivered by both Hidden J and me have shown, the plaintiff has for long and often sought assistance with things such as access to materials and equipment that even the most indigent unrepresented litigants at liberty in the community take for granted. Although framed in terms of prayers for relief from this Court, none of these requests has been soundly based on a proper cause of action or a justiciable complaint and the comments and recommendations that have been made about them were neither intended to be judgmental nor were they capable of being enforced.

40 The realistic position appears to be that the plaintiff will for the foreseeable future be left to his own devices with limited and inadequate resources to prosecute the present proceedings. That is an inconvenience to him and it is also an inconvenience to the third defendant whose commendable forbearance so far is deserving of some recognition in the form of an early and practical resolution to this long running case.

41 The second further amended statement of claim is an embarrassing document and has the potential to cause prejudice and delay. This is the matter of most pressing concern. It does not in my opinion, at least on a charitable view, and considering the circumstances to which I have referred, fail to disclose at least the possibility of a reasonable cause of action although it is in urgent need of life saving surgery if it is to serve any proper purpose when this matter is finally heard. I do not consider that it is an abuse of process.

42 Ms Sibtain has once again quite properly and commendably conceded that the prospect of prejudice to the third defendant, while apparent, is probably not yet real. Her submissions included the following:

"I should say to your Honour there is no particular evidence of prejudice that I can point to by the way of the death of a witness or anything of that kind, but I say from the bar table, although I think it might be somewhere in the correspondence, since the commencement of proceedings at least two of the officers have left the force and their whereabouts is presently unknown by those who instruct me. No doubt they could be tracked down. I say no more than that, except there was some evidence of prejudice put before her Honour Justice Simpson from the first two defendants which has led them essentially to abandon these proceedings unless or until something actually happens."

43 Nor can it be said that these are (yet) proceedings that cannot be fairly or properly determined because of prejudicial delay since the events to which they relate. They are not apparently being maintained for a collateral purpose and none is suggested. Most importantly the proceedings are not doomed to fail for the reason that no reasonable cause of action is disclosed or because they are untenable in the circumstances that are known to exist at present.

44 I was at one time of the view that it would have been the most efficient use of this Court's time, and consonant with the overriding purpose, to permit the matter to proceed to a hearing as presently pleaded so that the plaintiff would be forced to confront head-on any inadequacies of the current pleading at that time and stand or fall with the outcome of any attack that the third defendant may seek to mount. However, the third defendant is attacking the pleading now and even though there is a prospect of further interlocutory hearings, and no certainty about when a final hearing may be possible, the third defendant's complaints are real and adjudication of them cannot reasonably be postponed again. Indeed, part of the third defendant's concerns in this respect have been captured in Ms Sibtain's submissions to me, including the following:

"There is further correspondence through February and March 2007 asking the plaintiff to move this case forward, and your Honour sees that 5 April 2007 was the first sign from the defendants of a motion to have the matter dismissed for want of due prosecution pursuant to the rules…

On 26 April 2007, rather than dealing with the pleading that was on foot one finds an amended statement of claim which was said to deal with the pleading defects but indeed adds further matters, further allegations. I won't take your Honour back through those but your Honour will immediately see when you go through that pleadings folder that on occasions where the plaintiff is asked to clarify and to focus his case, that case becomes less clear and more unfocused as the matter has progressed, adding as it does further causes of action without clarifying those already brought."

45 I am not at all confident that the plaintiff will ever produce a properly pleaded statement of claim, but I am not presently prepared to say that it will never be produced. The current pleading has every likelihood of causing delay at an interlocutory stage and at the hearing. It will patently continue to cause procedural prejudice and has done so already. It cannot withstand the third defendant's present assault upon it. The plaintiff should be given another chance to correct the defects in his pleading, although he must understand and appreciate that there is a prospect that a time may arrive when no further opportunity to do so will be extended to him. I am not prepared to say that such time has yet arrived and it is obviously inappropriate for me to express any view about whether it ever will.

Conclusions and orders

46 In these circumstances, subject to what follows, I consider that the second further amended statement of claim should be struck out. The plaintiff should be given leave to replead his case in proper form within a reasonable time, with the exception of the case nominally pleaded as a cause of action for defamation, which I have already dealt with. However, I will postpone making final orders to this effect until I have heard the parties on the matters discussed at [33] to [36] above.

47 Accordingly, I direct that the proceedings be listed before me at 9.30am on Friday 2 July 2010 for mention for the purpose of hearing the parties on this further matter, on what is a reasonable time to permit the plaintiff to replead his case (if applicable) and on the question of the costs of the motion.

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