Clark v Robards (No 3)

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.

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.

Three grounds were set out in the notice of motion, in the following terms:

The notice of motion was accompanied by a document in the form of an affidavit sworn by the applicant on 15 November 2016 but which was, in substance, a submission in support of the motion. On 8 December 2016 the applicant provided to the Registrar of the Court a further two page letter which referred to provisions conferring certain powers on the Court, namely s 63 of the Civil Procedure Act 2005 (NSW) and Pt 36, Div 4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

Section 63 is in the following terms:

The relevant provisions in the UCPR, relied upon by the applicant, were the following:

The Court has dealt with the motion on the papers without seeking submissions from the respondents. That course has been taken in accordance with the overriding purpose of the Civil Procedure Act and the UCPR, namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings and in order to avoid unnecessary cost: Civil Procedure Act, s 56 and s 57.

Two further matters should be identified by way of background. First, on 22 August 2016, within the period provided by r 36.16(3A), Mr Clark filed a notice of motion seeking to reopen the judgment in this matter, in part on the basis that there had been a misapprehension as to the facts. The 22 August motion also sought to set aside the judgment of 9 August on the basis of the difficulty, if not impossibility, of the applicant properly pleading a claim whilst in custody: see Clark v Robards (No 2). [3] The current motion, brought long after the expiration of time provided by r 36.16(3A), and long after the earlier motion had been dismissed in the judgment handed down on 7 September 2016, seeks to re-agitate the second ground relying on the circumstances of his custody.

The other matter of background which needs to be identified is that the proceedings disposed of on 9 August 2016 included an appeal from a separate judgment of Hidden J dealing with the terms of the applicant’s custody: Clark v Commissioner for Corrective Services. [4] In that appeal, the applicant had sought orders with respect to the conditions of his custody which he submitted had greatly impeded him in the pursuit of his various legal proceedings. In particular, he sought to be placed in a cell by himself and to have access in his cell to a laptop computer and the 11 tubs of his legal papers. The Court was, at the time of the judgments delivered on 9 August 2016, familiar with the conditions of the applicant’s imprisonment and the physical constraints under which he operated.

The present motion seeks to recast those complaints into an allegation that the applicant was “lawfully incapacitated” so that the hearings both in this Court and before the primary judge miscarried.

Even where the powers of the Court to set aside or vary its own judgment or order is invoked within the limited time provided by r 36.16(3A), being 14 days, the willingness of the Court to reopen its decision is constrained. The importance of finality and the need to identify an error warranting the exceptional course sought were considered in Waterhouse v Independent Commission Against Corruption (No 2) [5] and may be repeated in order that the present applicant have ready access to the statement of principle.

Bearing those cautions in mind, the power to reopen on a ground identified in r 36.15 is even more constrained. There is significant case law considering the circumstances in which reopening will be permitted under that rule. Suffice it to say that reopening will not be permitted because a party has failed to raise an apparently arguable point or seeks to reformulate a point which had been raised, but on a different basis.

There will be cases where a litigant belatedly learns of a circumstance which affects the validity of the judgment (such as a ground sufficient to disqualify a member of the tribunal for bias) and which could not have been discovered earlier. Generally, however, delay in seeking to reopen will weigh heavily against the court exercising any power it may have in that regard.

In this case, the Court has no power. The matters identified as the grounds of the application do not demonstrate any “irregularity” in the judgment given on 9 August 2016. There is no basis for concluding that the applicant is a “person under legal incapacity” for the purposes of UCPR, r 7.13. There is no evidence that he suffers a cognitive impairment or disability which prevents him properly presenting his case in court. Although he was assisted by counsel providing assistance to the Court on the hearing of his appeals, he also appeared by AVL. Counsel raised no issue and the Court had no concerns about his physical or mental abilities. Nor is there any new material presented which would suggest that the applicant was suffering from some form of incapacity which had not been understood by the Court. (Compare Murphy v Doman. [10] ) There is no reason to find that the applicant could only carry on proceedings by a tutor, in accordance with r 7.14. Nor does it appear that the applicant seeks the appointment of a tutor.

As to the third ground, alleging failure on the part of the State to provide the applicant with a full copy of the UCPR, there was no such obligation. This complaint appears to be an attempt to raise a new aspect of the difficulties of a person in custody seeking to conduct civil litigation in the Supreme Court. Regardless of form, a question of access to necessary materials could have been raised a long time ago, if a relevant factual basis had been established.

The other matters raised in the affidavit/submission filed on 17 November 2016 did no more than repeat matters which had already been raised at the hearing of the appeals.

The notice of motion filed by the applicant on 17 November 2016 must be dismissed.