Peter Frederick CLARK v TNR & Ors

[2008] NSWSC 828

CITATION:	Peter Frederick CLARK v TNR & Ors [2008] NSWSC 828
HEARING DATE(S):	24 April 2008
JUDGMENT OF:	Simpson J
EX TEMPORE JUDGMENT DATE:	24 April 2008
DECISION:	Notice of Motion Dismissed. Plaintiff to pay the Defendants' costs.
CATCHWORDS:	PRACTICE AND PROCEDURE - Application to temporarily stay proceedings - Plaintiff's criminal proceedings yet to be finalised - inability to access documents - medical condition - lengthy delay in finalisation of proceedings - notice of motion dismissed
PARTIES:	Peter Frederick CLARK (Plaintiff) TNR (2nd Defendant)
FILE NUMBER(S):	SC 20185/05
COUNSEL:	P Clark (In Person) (Plaintiff) TNR (In person) (1st & 2nd Defendants) PM Sibtain (3rd -5th Defendants)
SOLICITORS:	P Clark (Self represented) TNR (Self represented) I V Knight - Crown Solicitor (3rd-5th Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Thursday 24 April 2008

20185/05 Peter Frederick CLARK v TNR & Ors

JUDGMENT

1 HER HONOUR: These proceedings were commenced by statement of claim filed on 14 June 2005 naming five defendants. The plaintiff, Mr Clark, is unrepresented and has prepared his own legal documents. In fact the proceedings have their origin as far back as 1998 when the plaintiff was charged with sexual offences against the first defendant of which he was initially convicted but acquitted on appeal. The plaintiff now seeks an order that further proceedings on the statement of claim be temporarily stayed. He puts his argument today on two bases: One, medical reasons, and two, that he is currently engaged in criminal proceedings which have not been finalised and to which he needs to devote his attention.

2 The order sought is opposed by TNR who appears for himself and is the second defendant and who also appears without objection from any other party for TR who is the first defendant and TNR’s son.

3 The application is also opposed by Ms Sibtain who appears for the State of New South Wales which is the third defendant and such of the fourth and fifth defendants (a police officer, and an employee of the NSW Attorney General’s Department) as continue to be parties to the proceedings. I put it that way because there is apparently some doubt about their current status as parties, which need not here be resolved.

4 The proceedings have a very long history, they being now almost 3 years old, but regrettably that history does not disclose anything in the nature of progress. I was given a chronology by Ms Sibtain to which I do not propose to refer in detail but which sets out what is an extraordinary history of applications on the part of the plaintiff for adjournment of the proceedings. To some extent that is understandable. On 12 December 2006 the plaintiff was convicted in the District Court on certain charges and subsequently sentenced to imprisonment for four years with a non-parole period of two years, the non-parole period of which will expire on 8 December this year. It may be assumed that his capacity to prepare himself to pursue his claim is, to some extent, hampered by his incarceration and he has, in fact, (from the bar table) spoken of some specific difficulties that he has.

5 He has nevertheless attended court on many occasions and has represented himself on those occasions. He has also been prolific in his correspondence in this matter and in other matters. He has appeared in this court on two previous occasions seeking orders of the Court. Judgments have been given by Justice Hoeben (Supreme Court of NSW, Hoeben J, 6 February 2006, Unreported) and Justice Hidden (Supreme Court of NSW, Hidden J, 19 October 2007, Unreported).

6 The defendants have consistently, and as I read the material, very fairly recognised the difficulties the plaintiff has faced and have accommodated many of his requests for adjournment. However, their patience has run out and they now understandably wish to see the matter progressed.

7 I was referred in detail to correspondence written by the plaintiff and also to transcripts of what he has said during various mentions and applications in this matter. For many months he put the basis for his various applications for adjournment on the circumstance of the criminal charges he was then facing and sought to have this matter remain in abeyance until finalisation of those charges. That occurred, as I have said, on 12 December 2006 or shortly thereafter when he was sentenced.

8 I note for completeness that he has appealed against the convictions which resulted and that appeal was heard, but not decided, on 22nd of this month, just two days ago. Judgment is reserved.

9 One of the most significant matters put by Mr Clark is that on 14 November 2007 he was the victim of a serious assault and suffered injuries, which I accept, from photographic evidence only, were serious. I do not doubt that that caused a temporary delay in his capacity to move on with this matter. He has also said from the bar table, and I have no reason to doubt the accuracy of this, that whilst in custody he has been moved from one prison to another on many, many occasions and that this frequently, if not always, results in his being separated, sometimes for protracted periods, from his documents relating to these proceedings.

10 I understand, although the evidence about this is scanty, he is also facing additional charges in respect of which he has been committed for trial. However, as I said, in his final submissions the plaintiff put the basis for his application as medical reasons as well as the need to finalise the current criminal proceedings. He put in evidence some medical material; this consists of a psychiatric report dated 19 November 2001, which reviewed (on the basis of his history given by the plaintiff) his medication for depression. If those matters are accepted, and there is no evidence to the contrary, I would accept that it took some time for his medication to be stabilised and that the medication did cause some disruption to his capacity to manage his own affairs. However, as I said, that report is dated 19 November 2001 and the psychiatrist said that as of that date he was mentally competent to instruct a solicitor.

11 There was also a report of a general practitioner dated 27 May 2004 which went to similar issues although in far less detail. It suggested as of that date he might not have been capable of giving accurate evidence.

12 He also put in a photocopy of a page from prison medical records which showed that on 9 December 2007 he was cleared from the medical observation cell. Subsequently the plaintiff thought that he had tendered the wrong document and he tendered another page of those records dated 6 December 2007. This does not really advance the matter. The note is that on that date he was housed in the clinic for some time but returned to a cell.

13 Accordingly there is no medical evidence which establishes that he is currently unable to proceed to deal with this matter. That is not to say that there is not some substance in the matters put by the plaintiff in respect of the conditions under which he is seeking to deal with the proceedings. If that were the only consideration there would be reason to consider acceding to the application.

14 However there are more parties than one to litigation. The first and second defendants have been the subject of this statement of claim for almost three years now. They, too, are unrepresented. The second defendant, TNR, told me from the bar table something of the history of the matter. I bear in mind that the plaintiff characterises the chronology provided by TNR as biased and there has been no cross-examination on that so I treat that with some circumspection; however a good deal of the material is uncontroversial and is supported by documentary material presented on behalf of the State defendants.

15 There is no doubt that litigation such as this has a stressful impact on those subject to it. Both the first and second defendants have cooperated, as have the other defendants, in repeated applications by the plaintiff to delay the prosecution of the proceedings. I am not surprised that their patience has been exhausted and that they wish to have the matters finalised so that they can resume their lives without the pain of pending litigation.

16 I note also that the plaintiff has provided a Further Amended Statement of Claim. It has not been filed as yet because there may be some issue about his standing to file it, but he has been able to prepare it.

17 In my opinion the time has come for this matter to make some progress. I bear in mind that every indulgence to one litigant comes at a corresponding cost to another, or others. The plaintiff has made his application by notice of motion filed in court on 6 December 2007. In that notice of motion he sought a variety of orders including the order previously sought, that the matter be temporarily stayed pending his recovery from injuries from the serious assault upon him on 14 November 2007. In the present proceedings that was the only order sought. No argument or evidence was addressed to the other orders sought in the notice of motion.

18 Accordingly the order I make is that order 1 in the notice of motion of 6 December 2007 is dismissed. I order the plaintiff to pay the costs of all the defendants to the extent they have incurred legal costs.

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