Clark v State of New South Wales (No 2)

[2016] NSWSC 1443

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Clark v State of New South Wales (No 2) [2016] NSWSC 1443
Hearing dates:	Written submissions dated 23 June 2016, 27 June 2016, 30 June 2016, 8 July 2016 and 30 September 2016
Date of orders:	12 October 2016
Decision date:	12 October 2016
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Mr Clark is to bear the other parties’ costs, as agreed or assessed, in respect of MFI 4 and MFI 6 and the State is to bear the disbursements he incurred in connection with his pursuit of MFI 5.
Catchwords:	PROCEDURE – costs – no good reason for departing from the general rule – orders made   PROCEDURE – Judgments and orders – application to reopen judgment as to alleged error – no error established
Legislation Cited:	Felons (Civil Proceedings) Act 1981 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Clark v Robards [2010] NSWSC 522 Clark v Robards [2014] NSWSC 742 Clark v Robards [2015] NSWCA 140 Clark v State of New South Wales [2015] NSWSC 246 Clark v State of New South Wales and others [2016] NSWSC 808
Category:	Costs
Parties:	Peter Frederick Clark (Plaintiff) State of New South Wales (First Defendant) Attorney General of New South Wales (Second Defendant) The Commissioner of Corrective Services New South Wales (Third Defendant) The Department of Corrective Services New South Wales (Fourth Defendant) The GEO Group Pty Limited (Parklea Correctional Centre) (Fifth Defendant) Timothy Neil Robards (Sixth Defendant) Voros Lawyers Pty Ltd (Seventh Defendant) Theo Voros (Eighth Defendant) Daniel Roff (Ninth Defendant) Robert Webb (Tenth Defendant)
Representation:	Counsel: Mr A N Williams (First Defendant) Mr N Kabilafkas (Seventh and Eighth Defendants)   Solicitors: Mr P Clark, unrepresented (Plaintiff) Crown Solicitor (First Defendant and Second Defendants) HWL Ebsworth (Seventh and Eighth Defendants)
File Number(s):	2014/173356
Publication restriction:	None

Judgment

1. Judgement was given in this matter in Clark v State of New South Wales [2016] NSWSC 808). I there said (at [139] – [141]):

“139    The usual order under the Rules is that costs, as agreed or assessed, will be ordered in favour of the successful party. In the case of an unrepresented litigant, a costs order is usually confined to an order for disbursements.

140    In this case that would be a costs order against Mr Clark in respect of MFI 4 and MFI 6 and an order in his favour, in respect of disbursements connected with his pursuit of MFI 5.

141    I will hear the parties if they seek a departure from the usual orders.”

2. Mr Clark opposed any costs orders being made in favour of the defendants and sought a review of the decision, as to what he submitted was a factual error. While that application was not made in accordance with the requirements of the Uniform Civil Procedure Rules 2005 (NSW), the other parties did not oppose the matter being dealt with, as if he had made an application for review by way of motion.

The alleged error

3. At [134] of the judgment, I concluded that a claim which Mr Clark sought to pursue in negligence for injuries which he suffered while on remand in November 2007, when he was assaulted with a fire hose nozzle, “is already the subject of a negligence claim” made in proceedings which he commenced in 2005 and that “[i]t would be an abuse of process to give Mr Clark leave to pursue the same claim in these proceedings.”

4. Mr Clark’s case was that while this claim had been the subject of his earlier application under the Felons (Civil Proceedings) Act 1981 (NSW), it had not been dealt with and so could not involve any abuse of process. Mr Clark relied on what was observed by the Court of Appeal in Clark v Robards [2015] NSWCA 140 at [36] – [38]:

“New Claims

36   The proposed pleading, in Part B, sought to introduce a number of new claims for damages arising out of events which occurred whilst the applicant was in custody. The most serious of those events was an alleged attack in which he was “repeatedly bludgeoned” whilst held in custody at the Metropolitan Remand and Reception Centre, Silverwater, on 14 November 2007.

37   The alleged attackers were persons who, on the pleadings, should have been known to be people from whom the applicant might fear violence and who should not have been allowed either to obtain the weapon with which they assaulted the applicant or to have had access to the applicant. The claim alleged negligence on the part of the State in allowing the attack to take place.

38 Precisely how the new claims were dealt with was not entirely clear, except that they fell within matters requiring leave under the Felons (Civil Proceedings) Act 1981(NSW). They could, and should, properly have been struck out on that basis. No further steps can be taken by the applicant in that regard, absent a grant of leave. Accordingly, no further attention can be given to them in this Court and, in so far as they are the subject of the present application for leave to appeal, that leave should be refused.”

5. The State’s case was that the conclusion I had reached at [134] was correct, because the statement of claim in respect of which leave was sought by Mr Clark, which was dismissed by Hidden J in Clark v Robards [2014] NSWSC 742, had advanced an application for leave in respect of the alleged 2007 assault; that he had been given leave to appeal the orders made; and that judgment in the appeal is reserved.

6. In Clark v Robards [2010] NSWSC 522, Harrison J had explained the history of repeated amendment to Mr Clark’s proposed pleading in respect of which he sought leave. At [8] his Honour explained amendments made in the second further amended statement of claim to include claims in negligence against the Commissioner of Corrective Services that he “was not adequately or sufficiently accommodated or protected whilst in custody away from fellow prisoners who attacked him and left him unconscious”. His Honour struck out the statement of claim, but gave Mr Clark leave to replead, an opportunity which he pursued. It was the further pleading which was dealt with by Hidden J.

7. Hidden J said as to Mr Clark’s further amended statement of claim:

“50    Pars 4-24 appear to be a claim in negligence, and are an expanded version of a claim to be found in pars 122-131 of the 2005 pleading. They assert that in November 2007 Mr Clark, while at the Metropolitan Remand and Reception Centre (MRRC), was seriously assaulted by another inmate with a large metal fire hose nozzle. He alleges that the assault was arranged by another inmate from whom he was in danger, a fact which he had communicated to senior officers. As a result, he was transferred to a different block but it was there that he was attacked.

51    The 2005 pleading had alleged in general terms that officers of the MRRC had failed in their duty to protect him. However, the negligence now particularised is that the nozzle was kept in a "room-compartment" which should have been locked at all times to prevent inmates from accessing it, that the door was left unlocked, allowing the inmate in question to secure the weapon, and that the "Commissioner and/or Correctional Officers had a clear duty of care" to see that inmates did not have access to anything that could be used as a weapon on another inmate or officer. Mr Williams fairly pointed out that the duty of care could not extend that far, as it would suggest that prisoners would need to be kept without access to any movable goods.”

8. The proceedings were dismissed by Hidden J for reasons given at [96] - [97] of the judgment. That decision was challenged on appeal (in Clark v Robards [2015] NSWCA 140). Leave to appeal was there given against so much of the judgment of Hidden J as dismissed paragraphs of the proposed amended statement of claim which dealt with causes of action to be found in the 2005 pleading, other than a conspiracy charge (Part A, par 10), considered by Harrison J in June 2010. It is that judgment that appeal is reserved.

9. Before Hidden J, Mr Clark sought to obtain leave in relation to negligence originally alleged at 4-24 of the 2005 pleading, which was repleaded at 122-13 of the proposed amended statement of claim he finally pressed, evidenced by the injuries which he claims to have suffered as a result in 2007. The leave to appeal which he was granted appears to encompass the negligence he now again seeks leave to pursue, given the orders made by the Court of Appeal. In those circumstances, Mr Clark’s case as to error cannot be accepted and his application to reopen the judgment must be refused.

Costs

10. Mr Clark submitted that no costs order should be made, given the nature of the proceedings; his status as a prisoner; his age and financial circumstances; that the other parties were not named defendants to the proceedings; that they had been allowed to make complex written and oral submissions to assist the Court; that their participation in the proceedings had not been justified; that the same conclusions would have been reached, had they not been given the leave they had sought; and that it would be contrary to the scheme of the Felons Act to make the orders sought.

11. The 8th defendant submitted that it, the State and Mr Clark having been granted leave to appear, as the statutory scheme permitted, while there was a basis for the making of a special costs order for indemnity costs against Mr Clark, given the conclusions reached that his proposed claims against it involved an abuse of process and had no prospect of success, Mr Clark’s submissions were incapable of providing a basis for refusing it the benefit of the usual order under the Rules.

12. The State’s position was that it was relevant that the Felons Act made no special provision for costs; that the proposed order reflected the parties’ respective success and that the judgment given reflected the assistance which flowed from the respective parties, given the leave to appear for which the legislative scheme provided. It was not open to conclude that the matters raised would have been drawn to the Court’s attention without that leave. In the result, the proposed costs orders should be made.

13. In his reply Mr Clark relied on Clark v State of New South Wales [2015] NSWSC 246 where no order as to costs was made by Hamill J. There were no reasons given for that order made in a case which concerned, his Honour explained, a claim for relief predominantly aimed at compelling the State to provide Mr Clark with particular items he required to pursue and prepare for a number of court cases in which he is, or was, involved. In dismissing the summons, his Honour noted at [55] that the submissions advanced by Mr Clark “constitute an invitation to interfere with the administration of the prison system in circumstances where such interference has been repeatedly eschewed by the courts and where I have insufficient information upon which to base any relevant finding”.

14. This is a different case, which must be decided on its own facts, in light of what justice demands, in the face of Mr Clark’s largely unsuccessful further pursuit of the leave which he sought. While Mr Clark reiterated his submissions as to the consequences of the incompetence and deceit on the part of his legal representatives he alleges he was the victim of, and the errors he complains of in my and other judgments there dealt with, that is not a proper basis for departure from the usual costs order.

15. The Court’s costs discretion, in my view, should be exercised in the way foreshadowed, notwithstanding Mr Clark’s circumstances and what he claims to be his limited means, about which he led no evidence. Undoubtedly, the nature of the proceedings must be born in mind, when the question of costs is considered, the Felons Act limiting as it does an offender’s right to pursue litigation against other parties without the Court’s leave.

16. In this case, nevertheless, given what was in issue in the proceedings and the reasons for the leave given to both Mr Clark and the other parties to appear to be heard on the application, discussed in my earlier judgment, I am satisfied that there is good reason for not departing from the usual costs orders under the Rules.

17. In the result, I order that Mr Clark is to bear the other parties’ costs, as agreed or assessed, in respect of MFI 4 and MFI 6 and the State is to bear the disbursements he incurred in connection with his pursuit of MFI 5.

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Amendments

13 October 2016 - typographical error in catchwords

Decision last updated: 13 October 2016