Clark v State of New South Wales

[2018] NSWCA 120

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Clark v State of New South Wales [2018] NSWCA 120
Hearing dates:	4 June 2018
Date of orders:	08 June 2018
Decision date:	08 June 2018
Before:	Macfarlan JA; Sackville AJA
Decision:	(1)   Leave to file an amended Notice of Motion dated 4 June 2018 is refused. (2)   The tender of MFIs 1, 2 and 3 is rejected. (3)   Mr Clark’s application for leave to appeal is dismissed with costs.
Catchwords:	APPEAL – refusal of leave to appeal against decision giving only limited leave to amend statement of claim – no issue of principle
Legislation Cited:	Felons (Civil Proceedings) Act 1981 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17 Clark v Robards [2016] NSWCA 187 Clark v State of New South Wales [2014] NSWSC 742
Category:	Procedural and other rulings
Parties:	Peter Frederick Clark (Applicant) State of New South Wales (Respondent)
Representation:	Counsel: Self-represented Applicant A N Williams (Respondent)   Solicitors: Self-represented Applicant Crown Solicitor’s Office (Respondent)
File Number(s):	CA 2017/343118
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2017] NSWSC 1414; [2018] NSWSC 83 Before: Beech-Jones J File Number(s): SC 2002/269279; 2002/69098

Judgment

1. THE COURT: The applicant, Mr Peter Clark, is presently incarcerated as he is serving sentences for serious offences. He seeks leave to appeal from judgments of Beech-Jones J of 10 October 2017 and 9 February 2018 ([2017] NSWSC 1414 and [2018] NSWSC 83).

2. In the first judgment, his Honour granted Mr Clark leave to file a Third Further Amended Statement of Claim in the underlying proceedings. These were commenced in 2002. In them, Mr Clark claims damages against the State for false arrest, false imprisonment, malicious prosecution and abuse of process relating to various criminal charges laid against him. On the present application, Mr Clark complains that his Honour’s grant of leave to amend did not extend to the inclusion of various allegations that Mr Clark sought to include. Mr Clark also complains about the narrowness of discovery orders that his Honour made.

3. By his second judgment of 9 February 2018, his Honour refused Mr Clark’s application that he re-open the matters determined by the judgment of 10 October 2017.

4. Relevant to his Honour’s judgments was the existence, and then dismissal, of proceedings commenced by Mr Clark in 2005 (the “2005 proceedings”). In them, he sought damages from the State for false arrest, false imprisonment, malicious prosecution and other wrongdoing. On 17 June 2014 Hidden J dismissed the 2005 proceedings for want of prosecution (Clark v State of New South Wales; Clark v Robards [2014] NSWSC 742) and on 9 August 2016 this Court dismissed an appeal from that decision (Clark v Robards [2016] NSWCA 187).

5. As Mr Clark was (and remains) in custody, Beech-Jones J approached Mr Clark’s application to file the Third Further Amended Statement of Claim on the basis that, by reason of ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW), Mr Clark bore an onus of persuading his Honour that new causes of action sought to be added to the Statement of Claim by way of the amendment were not an abuse of process and that there was a “prima facie ground” for them (see s 5). Mr Clark has not demonstrated that there was any error in his Honour taking this approach.

6. With one qualification, the primary judge’s reasons for declining to grant leave to advance the causes of action that were new to the 2002 proceedings were that they had in substance been part of the dismissed 2005 proceedings and that his Honour was not therefore satisfied that their inclusion in the 2002 proceedings would not amount to an abuse of process. Mr Clark did not demonstrate that his Honour made any error in reaching these conclusions.

7. The qualification to which we referred related to the allegations in paragraphs [7] and [8] of the proposed Third Further Amended Statement of Claim (Judgment [18]-[22]) concerning charges preferred against Mr Clark in the year 2000. In respect of these, his Honour said that the Court was entitled to expect some “particularly persuasive explanation to be put forward at this point as to why these matters are now being raised for the first time”. His Honour referred to Mr Clark’s reliance on injuries he had suffered whilst in custody and the difficulties he had had in obtaining access to documents. However his Honour did not consider that these matters provided an adequate explanation, particularly when there had been a period when Mr Clark had had legal representation. His Honour’s refusal of leave has again not been shown to be in error.

8. In addition to addressing Mr Clark’s application for leave to file a Third Further Amended Statement of Claim, his Honour made orders to the following effect:

1. An order requiring the State to file an affidavit concerning the whereabouts of material seized from Mr Clark when a search warrant was executed at his home on 27 January 2005.

2. An order refusing Mr Clark access to court files in unrelated malicious prosecution matters. Mr Clark sought access to them for the purpose of using their contents as precedents for drafting documents to support his claims.

3. An order directing the State to provide discovery of documents relating to the prosecutions the subject of Mr Clark’s 2002 proceedings.

9. We make the following observations concerning Mr Clark’s proposed grounds of appeal against Beech-Jones J’s decisions. The terms of the proposed grounds appear sufficiently from what we say below.

1. This ground alleges improper conduct by police in connection with criminal charges against Mr Clark. The matters to which he refers may be relevant to whether there were in fact malicious prosecutions or abuses of process as he alleges but do not, even if well-founded, detract from the primary judge’s reasoning in the judgments sought to be challenged.

2. This ground alleges that the “poorly pleaded documents” that Mr Clark has relied upon in the past are explicable by reference to “special and exceptional” circumstances constituted by difficulties he has experienced in conducting litigation whilst incarcerated. This is an allegation which the primary judge took into account in exercising his discretions (see [7] above). The ground does not therefore identify any error in his Honour’s reasoning.

3. This ground in substance seeks to make the same point as made in ground (2).

4. This ground complains that the primary judge did not order discovery, or require production under Notices to Produce, of documents that would allow Mr Clark to plead new causes of action. This is tantamount to a complaint that the primary judge did not grant preliminary discovery under Part 5 of the Uniform Civil Procedure Rules 2005 (NSW) when no application for orders under that Part had been made and the evidence had not established that its requirements were satisfied. There is no substance in the ground.

5. This is a general complaint that the primary judge declined to allow Mr Clark to rely on new causes of action. It does not identify any error in the primary judge’s reasoning.

6. This ground again relies on the “special and exceptional circumstances” in which Mr Clark says he prepared court documents in the past. It is to the same effect as Ground 2.

10. Mr Clark’s lengthy written submissions relied upon in this Court first give a chronology of his time in custody ([1]-[7]). Next they make assertions about factual matters which, as with proposed ground (1) referred to above, may be relevant to Mr Clark’s ultimate prospects of success in the 2002 proceedings but do not identify error in the primary judge’s reasoning ([8]-[49]). The submissions next rely again on the “special and exceptional circumstances” in which Mr Clark says he has had to conduct his litigation ([50]-[115]). As noted earlier, the primary judge did not overlook Mr Clark’s contentions about the difficulties that he has had to face.

11. In paragraph [116] of the submissions, Mr Clark identifies the four issues that he asserts arise on his application to this Court for leave to appeal.

12. The first and fourth again raise the matter of “special and exceptional circumstances” with which we have dealt above in connection with the proposed ground (2) of appeal. The second is to the same effect as proposed ground (4), with which we have also dealt. The third is framed as a question in the following terms:

“Am I, or any other person, entitled under law, to sue for any criminal prosecution that did not result in a conviction?”

13. The submissions refer in this context to the High Court decision in Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17 concerning the circumstances in which prosecutions are to be regarded as having terminated in the plaintiff’s favour for the purposes of the relevant element of the tort of malicious prosecution. As the primary judge did not proceed upon the basis that this element of Mr Clark’s claims was not, or may not, be established, this question does not draw attention to any error on the part of the primary judge.

14. The remainder of Mr Clark’s written submissions, and his oral submissions, elaborated on these matters but did not in our view raise any arguable basis for concluding that the primary judgments involved error.

15. At the hearing of the present application, Mr Clark sought leave to file an amended Notice of Motion. The new material in it does not bear upon the correctness or otherwise of the primary judge’s judgments, nor is it otherwise capable of assisting Mr Clark in obtaining leave to appeal against his Honour’s orders. The principal new matter is a prayer for an order that an enquiry be conducted into certain of Mr Clark’s convictions, to ascertain whether he was “set up” by the complainant and whether the complainant was coached by a named police officer. This is outside the purview of the matters which were before the primary judge for determination and leave to file the amended Notice of Motion should accordingly be refused.

16. Likewise, Mr Clark’s tender of two documents, marked MFI 1 and MFI 2, should be rejected. They could conceivably bear upon the merits of some aspects of Mr Clark’s underlying proceedings but do not impinge on the reasoning in his Honour’s judgments. A third document that Mr Clark tendered (MFI 3) should also be rejected. At best, it provides some evidence that the State holds some documents that may be of relevance to the proceedings. It does not touch on his Honour’s reasoning or otherwise support Mr Clark’s leave application.

17. For the reasons we have given:

1. Leave to file an amended Notice of Motion dated 4 June 2018 is refused.

2. The tender of MFIs 1, 2 and 3 is rejected.

3. Mr Clark’s application for leave to appeal is dismissed with costs.

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Decision last updated: 08 June 2018