Clark v Robards (No 2)
[2016] NSWCA 249
•07 September 2016
Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Clark v Robards (No 2) [2016] NSWCA 249 Hearing dates: On the papers Decision date: 07 September 2016 Before: Basten JA at [1];
Simpson JA at [7];
Emmett AJA at [8].Decision: The notice of motion filed 22 August 2016 is dismissed.
Catchwords: PRACTICE AND PROCEDURE – whether to reopen appeal where misapprehension of fact was made – whether factual error was material to the Court’s reasoning – whether further misapprehensions of fact had been made Cases Cited: Clark v Robards [2016] NSWCA 187 Category: Procedural and other rulings Parties: Peter Frederick Clark (Appellant)
Timothy Neil Robards (First Respondent)
Terrence Lloyd Robards (Second Respondent)
State of New South Wales (Third Respondent)Representation: Counsel:
Solicitors:
Self-represented (Appellant)
Self-represented (Appellant)
File Number(s): 2014/164527 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
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BASTEN JA: On 9 August 2016 the Court delivered judgment dismissing an appeal from a decision of Hidden J in the Common Law division, given on 17 June 2014, dismissing what were described as “the 2005 proceedings.” The appellant has now filed a motion seeking to reopen that judgment on two bases, alleging misapprehension of the facts.
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The first basis was the statement in the judgment of Emmett AJA at [94], which referred to the direction of the primary judge that the 2002 proceedings were to be amended. The judgment continued, stating that “[n]o amended statement of claim has since been filed in the 2002 proceedings and, accordingly, they must be treated as dismissed.” Factually, that sentence was wrong, an amended statement of claim was filed. Simpson JA agreed with Emmett AJA.
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The second alleged error was the failure to have regard to the difficulty, if not impossibility, of the applicant properly pleading a claim whilst in custody.
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So far as the first matter goes, although I expressed agreement with the reasons of Emmett AJA at [2], it is clear from what followed that I had not formed the view that there had been no amended statement of claim filed. Indeed, at [7], I noted that one basis for granting leave was that “there appeared to be an anomaly in striking out the 2005 proceedings, but allowing more time for repleading of the 2002 proceedings.” The following paragraphs identified why that anomalous outcome did not demonstrate that the 2005 proceedings should not now be dismissed.
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As to the second matter, I expressly referred to the difficulties faced by the appellant as a prisoner in custody, and stated at [11]:
“Accordingly, although the Court should properly be wary of dismissing claims against the State, brought by a person who is held by the State in custody in circumstances which inevitably impede the ability to plead and prove a claim, the dismissal of the present claims does not raise concern that there might be a miscarriage of justice.”
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Neither misapprehension having been established, it is not necessary to consider the circumstances in which I would be minded to reconsider a judgment already delivered.
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SIMPSON JA: I agree with Emmett AJA
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EMMETT AJA: On 9 August 2016, for reasons given on that day (see Clark v Robards [2016] NSWCA 187), the Court made orders that the appeal in these proceedings be dismissed and that the appellant pay the costs of the respondents. In these reasons, terms are used as defined in the earlier reasons. On 22 August 2016, the appellant filed, in the appeal proceedings, a Notice of Motion dated 19 August 2016 by which he sought to reopen the appeal proceedings.
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In the Notice of Motion, Mr Clark claimed an order that the decision of the Court confirming the dismissal of the 2005 Proceedings be set aside. He claimed, in the alternative, an order that the appeal be allowed and an order that the order of Hidden J dismissing the 2005 Proceedings be set aside. The ground on which Mr Clark sought to rely is that this Court erred in misapprehending the facts and the evidence, leading to a miscarriage of justice.
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The Notice of Motion was supported by submissions in the form of an affidavit sworn by Mr Clark. For the most part, he seeks to re-agitate matters that were fully argued and addressed by the Court in the reasons delivered on 9 August 2016. However, Mr Clark also points to observations made by me in the earlier reasons in which I appear to have misapprehended a fact.
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The appeal related to orders made by the primary judge in the 2005 Proceedings. In the course of the earlier reasons, it was necessary to refer to the 2002 Proceedings, in which Mr Clark made claims against the State of New South Wales of false arrest, false imprisonment and malicious prosecution.
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On 30 June 2006, Johnson J ordered that the 2002 Proceedings be dismissed summarily. However, on appeal to this Court, the orders made by Johnson J were set aside on 22 May 2012, when this Court directed Mr Clark to file a further statement of claim in the 2002 Proceedings within three months.
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On 17 June 2014, when the primary judge ordered that the 2005 Proceedings be dismissed, his Honour dealt with an application for summary dismissal of the 2002 Proceedings. However, his Honour declined to order summary dismissal of the 2002 Proceedings. In declining to dismiss the 2002 Proceedings, Hidden J extended the time for Mr Clark to file a further amended statement of claim to 30 June 2014. His Honour directed that, if Mr Clark failed or declined to comply with that direction, the 2002 Proceedings were to be dismissed for want of due despatch.
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In my earlier reasons for judgment of 9 August 2016, I observed that no amended statement of claim had been filed in the 2002 Proceedings and that, accordingly, they must be treated as dismissed. It is now apparent that that observation was made as a result of a misapprehension of the submissions made on behalf of the State. In fact, Mr Clark had filed a further amended statement of claim within the time limited by the primary judge and, accordingly, the 2002 Proceedings are still on foot.
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The 2002 Proceedings were clearly still on foot when the primary judge ordered that the 2005 Proceedings be dismissed and the question of whether the 2002 Proceedings were still on foot was not material to my reasoning in concluding that the appeal should be dismissed. The 2002 Proceedings were not before this Court.
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While my mistaken observation has no juridical consequences either in relation to the 2002 Proceedings or the 2005 Proceedings, it is appropriate to recognise the true facts. Nevertheless, in the circumstances, the notice of motion filed 22 August 2016 should be dismissed.
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Decision last updated: 07 September 2016
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