Clark v Robards (No 2)

[2015] NSWCA 190

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Clark v Robards (No 2) [2015] NSWCA 190

Hearing dates:

On the papers

Decision date:

08 July 2015

Before:

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

Decision:

(1) Grant the applicant leave to commence proceedings for leave to appeal and, to the extent leave has been granted, to commence an appeal in this Court from the judgment of Hidden J given on 17 June 2014, pursuant to the Felons (Civil Proceedings) Act 1981.

 

(2)   Otherwise dismiss the motions.

 (3)   The costs of the motions to be costs in the appeal.

Catchwords:

PRACTICE and PROCEDURE - application for leave to appeal - reopening application - whether order based on misunderstanding - whether order ambiguous - grant of leave under Felons (Civil Proceedings) Act 1981 (NSW)

Legislation Cited:

Felons (Civil Proceedings) Act 1981 (NSW)
Limitation Act 1969 (NSW), s 50F
Uniform Civil Procedure Rules 2005 (NSW), r 12.7

Cases Cited:

Clark v Robards [2015] NSWCA 140
Potier v Attorney General in and for the State of New South Wales [2015] NSWCA 129

Category:

Consequential orders (other than Costs)

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:

Clark v State of New South Wales; Clark v Robards & Ors [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 22 May 2015 the Court as presently constituted granted the applicant leave to appeal against so much of the judgment of Hidden J as dismissed causes of action contained in certain paragraphs in a proposed amended statement of claim. [1] The effect of the judgment under review was to dismiss an action commenced by the applicant, known as “the 2005 proceeding”. The summons seeking leave to appeal was otherwise dismissed.

   1. Clark v Robards [2015] NSWCA 140.

3. By a notice of motion filed on 25 May 2015 the applicant sought to re-open that judgment in a manner which would allow him to re-plead parts of the pleadings which had been struck out and with respect to which he had not been granted leave to appeal. In the alternative he sought leave to file a new statement of claim in relation to those issues.

4. In support of that motion the applicant filed written submissions in the form of an affidavit, also filed on 25 May 2015. He raised two grounds in support of his application. The first was a failure to apply s 50F of the Limitation Act 1969 (NSW); the second was a failure to deal with an application under the Felons (Civil Proceedings) Act 1981(NSW).

5. With respect to the first…