Clark v Robards (No 3) - [2016] NSWCA 354

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Clark v Robards (No 3) [2016] NSWCA 354
Hearing dates: On the papers
Decision date: 15 December 2016
Before: Basten JA;
Simpson JA;
Emmett AJA.
Decision:
Dismiss the applicant’s notice of motion filed on 17 November 2016.

Catchwords: PRACTICE AND PROCEDURE –application to reopen judgment –– whether applicant a person under legal incapacity – Uniform Civil Procedure Rules 2005 (NSW), r 7.13 – issues raised before hearing – whether any “irregularity” in judgment – matter available to be raised, but not raised, at hearing – relief sought exceptional
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 63
Uniform Civil Procedure Rules 2005 (NSW), rr 7.13, 7.14, 36.15, 36.16; Pt 36, Div 4
Cases Cited: Clark v Robards (No 2) [2016] NSWCA 249
Clark v Robards [2016] NSWCA 187
Clark v Commissioner for Corrective Services [2016] NSWCA 186
Murphy v Doman (2003) 58 NSWLR 51; [2003] NSWCA 249
Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 362
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

THE COURT: On 14 June 2005 Peter Frederick Clark commenced proceedings against two individual respondents and the State, alleging numerous instances of unlawful conduct. The pleadings have never been finalized. On 17 June 2014, Hidden J made an order dismissing the proceedings, on the ground of “want of due despatch”: Clark v State of New South Wales; Clark v Robards. [1] Mr Clark sought leave to appeal from that order.
1. [2014] NSWSC 742 at [96].
On 9 August 2016 this Court delivered judgment dismissing the appeal: Clark v Robards. [2] By notice of motion dated 15 November 2016 (and filed on 17 November 2016) Mr Clark (hereafter “the applicant”) sought an order that the decision of the Court of 9 August 2016 be set aside. Although stated to be in the alternative, he also sought orders that his appeal be allowed and the order of the primary judge be set aside.
2. [2016] NSWCA 187.
Three grounds were set out in the notice of motion, in the following terms:

“1. The hearing before the Court of Appeal and before the primary judge were conducted contrary to the provisions of r 7.13 and r 7.14 Uniform Civil Procedure Rules 2005 this led to a miscarriage of justice as the Applicant (Plaintiff) was ‘lawfully incapacitated’.
2. Both the primary judge and this Court contrary to the decision of Harrison J forced the Applicant/Plaintiff to prosecute the Respondent’s motion to dismiss the 2005 proceedings and the subsequent appeal to that dismissal when the Applicant (Plaintiff) was…

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 (No 3)

Details

AGLC: Clark v Robards (No 3) [2016] NSWCA 354
Case: [2016] NSWCA 354
Decision Date: 15 December 2016

CaseChat Overview and Summary

In *Clark v Robards (No 3)*, the applicant sought to reopen a judgment previously handed down by the New South Wales Court of Appeal. The application was brought by the applicant, who claimed to be a person under legal incapacity, seeking to set aside the earlier judgment.

The central legal issue before the Court of Appeal was whether the applicant qualified as a person under legal incapacity for the purposes of rule 7.13 of the *Uniform Civil Procedure Rules 2005* (NSW). This rule permits a person under legal incapacity to seek to have a judgment set aside if certain conditions are met. The Court also considered whether the grounds raised by the applicant constituted an "irregularity" in the judgment, particularly in circumstances where the matters now sought to be raised were available to be, but were not, raised at the original hearing.

The Court reasoned that the applicant had not established that they were a person under legal incapacity within the meaning of rule 7.13. Furthermore, the Court found that the issues raised by the applicant did not amount to an "irregularity" in the judgment. The Court emphasised that relief under such provisions is exceptional and requires a compelling case, which was not made out on the facts presented. The applicant's failure to raise the matters at the original hearing, despite having the opportunity to do so, weighed against the granting of the extraordinary relief sought.

Consequently, the Court of Appeal dismissed the applicant’s notice of motion filed on 17 November 2016.

Orders

Orders of the court

Dismiss the applicant’s notice of motion filed on 17 November 2016.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Clark v Robards (No 3) [2016] NSWCA 354
Hearing dates:	On the papers
Decision date:	15 December 2016
Before:	Basten JA; Simpson JA; Emmett AJA.
Decision:	Dismiss the applicant’s notice of motion filed on 17 November 2016.
Catchwords:	PRACTICE AND PROCEDURE –application to reopen judgment –– whether applicant a person under legal incapacity – Uniform Civil Procedure Rules 2005 (NSW), r 7.13 – issues raised before hearing – whether any “irregularity” in judgment – matter available to be raised, but not raised, at hearing – relief sought exceptional
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 57, 63 Uniform Civil Procedure Rules 2005 (NSW), rr 7.13, 7.14, 36.15, 36.16; Pt 36, Div 4
Cases Cited:	Clark v Robards (No 2) [2016] NSWCA 249 Clark v Robards [2016] NSWCA 187 Clark v Commissioner for Corrective Services [2016] NSWCA 186 Murphy v Doman (2003) 58 NSWLR 51; [2003] NSWCA 249 Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 362
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