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Clark v Robards

Clark v Robards

Case [2010] NSWSC 522 4 June 2010

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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…

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 [2010] NSWSC 522
Case: [2010] NSWSC 522
Decision Date: 4 June 2010

CaseChat Overview and Summary

The proceedings involved Clark, the plaintiff, and Robards, the defendant. The nature of the dispute was centred on whether the defendant's actions constituted a breach of fiduciary duty and the subsequent claim for damages. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Clark, sought relief against the defendant, Robards, for an alleged breach of fiduciary duty and damages resulting from that breach. The defendant moved to have the plaintiff's statement of claim struck out under UCPR rules 13.4 and 14.28, asserting that it did not disclose a reasonable cause of action and was absolutely hopeless.

The court was required to decide whether the pleadings disclosed a reasonable cause of action and whether they had a tendency to cause prejudice, embarrassment or delay. Specifically, the court had to determine whether the statement of claim disclosed a triable issue or was absolutely hopeless. The court considered the legal standards set out in relevant case law, including the decision in the case of Smith v Rayne & Heming. The court held that the statement of claim was not fatally defective, but that it did not disclose a reasonable cause of action as it failed to identify the fiduciary relationship between the parties and the nature of the alleged breach. The court also found that the pleadings had a tendency to cause prejudice, embarrassment or delay, as they were vague and did not provide sufficient particulars to enable the defendant to answer the claim.

The court struck out the plaintiff's statement of claim and granted leave to the plaintiff to replead. The court emphasised that the plaintiff must ensure that the repleaded statement of claim discloses a reasonable cause of action, identifies the fiduciary relationship between the parties, and particularises the nature of the alleged breach. The court also noted that the plaintiff should take care to avoid any further delay in the proceedings. The court did not make any orders as to costs at this stage of the proceedings.

Orders