Clark v Robards (No 2)

[2016] NSWCA 249

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: Self-represented (Appellant)   Solicitors: 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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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…