Supreme Court New South Wales Medium Neutral Citation: Clark v State of New South Wales [2021] NSWSC 380 Hearing dates: 4, 30 March 2021 Date of orders: 16 April 2021 Decision date: 16 April 2021 Jurisdiction: Common Law Before: Wright J Decision: The Court orders and directs that: (1) Subparagraphs (b) and (c) of the particulars to paragraph 27 of the plaintiff's further amended statement of claim filed on 24 July 2020 are to be struck out by being ruled through on the Court file copy with the notation "Struck out by order of Wright J on 16 April 2021". (2) The defendant's notice of motion filed on 14 September 2020 is otherwise dismissed. (3) The costs of the motion filed on 14 September 2020 are to be the plaintiff's costs in the cause. (4) The defendant is to file and serve its defence on or before 30 April 2021. (5) The plaintiff is to serve on the defendant the evidence upon which he intends to rely, including signed evidentiary statements from all witnesses and copies of all documents, on or before 12 July 2021, or such other time as the Registrar may direct. (6) The defendant is to serve on the plaintiff the evidence upon which it intends to rely, including signed evidentiary statements from all witnesses and copies of all documents, on or before 4 October 2021, or such other time as the Registrar may direct. (7) The plaintiff is to serve on the defendant any evidence in reply, on or before 1 November 2021, or such other time as the Registrar may direct. (8) The matter is listed for directions before the Registrar on 5 November 2021. (9) The parties have liberty to apply to the Registrar to have the matter relisted on 3 days' notice. Catchwords: CIVIL PROCEDURE – Application for summary dismissal pursuant to UCPR rr 12.7 and 13.4 – Where proceedings commenced in 2002 in respect of conduct by police officers in 1997 and 2000 – Where prior judgments of the Court of Appeal, Hidden J and Beech-Jones J permitted the plaintiff to plead a cause of action of abuse of process in respect of conduct in 2000 – Where plaintiff largely complied with Registrar's direction as to filing a further amended statement of claim giving effect to the decision of Beech-Jones J in Clark v State of New South Wales [2018] NSWSC 83 – Where defendant did not submit that the statement of claim, in so far as it was within the scope of the leave granted by Beech-Jones J, failed to disclose a cause of action or was frivolous – Proceedings not vexatious or an abuse of process in the circumstances – Matter should be prepared for hearing as soon as possible – Notice of motion dismissed except for minor matter required to ensure the pleading complied with the previous decision by the Court of Appeal. Legislation Cited: Civil Procedure Act 2005 (NSW) Felons (Civil Proceedings) Act 1981 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Birkett v James [1978] AC 297 Clark v Robards [2010] NSWSC 522 Clark v Robards [2015] NSWCA 140 Clark v Robards [2016] NSWCA 187 Clark v Robards (No 3) [2016] NSWCA 354 Clark v State of New South Wales (2006) 66 NSWLR 640; [2006] NSWSC 673 Clark v State of New South Wales (No. 2) [2006] NSWSC 914 Clark v State of New South Wales; Clark v Robards & Ors [2014] NSWSC 742 Clark v State of NSW [2017] NSWSC 1414 Clark v State of New South Wales [2018] NSWCA 13 Clark v State of New South Wales [2018] NSWCA 120 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Green v Healthscope Ltd (t/as Hills Private Hospital) [2015] NSWCA 325 Hobbs v Australian Securities and Investments Commission [2013] NSWCA 432 Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 Regie Nationale des Usines Renault SA & Anor v Zhang (2002) 210 CLR 491; [2002] HCA 10 Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 State of New South Wales v Plaintiff A [2012] NSWCA 248 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 Category: Principal judgment Parties: Peter Frederick Clark (Plaintiff) State of New South Wales (Defendant) Representation: Self-represented (Plaintiff) Counsel: B Searson (4 March 2021), A Williams (30 March 2021) (Defendant) Solicitors: Crown Solicitor's Office (Defendant) File Number(s): 2002/69098 Judgment 1. By a notice of motion filed on 14 September 2020, the defendant, the State of New South Wales, sought the following orders: 1. that the plaintiff's proceedings be dismissed, under r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for want of due despatch and under r 13.4 of the UCPR as vexatious and an abuse of process; 2. further and other orders; and 3. costs. 1. For the reasons which follow, I have decided: 1. to strike out two sub-paragraphs of the plaintiff's further amended statement of claim filed 24 July 2020; 2. otherwise to dismiss the State's notice of motion; and 3. to order that the costs of the notice of motion be the plaintiff's costs in the cause. 1. In the circumstances, directions have also been made with a view to ensuring that the matter is prepared for hearing as soon as reasonably possible. Background 1. This matter, including these and other proceedings, has an unfortunately long history, most of which it is unnecessary to recount for the purposes of this application. Aspects of that history are recorded in a number of judgments, including, without attempting to be exhaustive: 1. Clark v State of New South Wales (2006) 66 NSWLR 640; [2006] NSWSC 673; 2. Clark v State of New South Wales (No. 2) [2006] NSWSC 914; 3. Clark v Robards [2010] NSWSC 522; 4. Clark v State of New South Wales; Clark v Robards & Ors [2014] NSWSC 742; 5. Clark v Robards [2015] NSWCA 140; 6. Clark v Robards [2016] NSWCA 187; 7. Clark v Robards (No 3) [2016] NSWCA 354; 8. Clark v State of NSW [2017] NSWSC 1414; 9. Clark v State of New South Wales [2018] NSWCA 13; and 10. Clark v State of New South Wales [2018] NSWCA 120. 1. It is sufficient for present purposes to note what follows. 2. On 21 May 2002, these proceedings with file number 2002/69098 were commenced by the plaintiff filing a statement of claim for relief against the defendant arising out of allegations of false imprisonment, malicious prosecution and similar matters in respect of conduct by police officers in 1997 and 2000. 3. On 23 April 2004, the plaintiff filed a further amended statement of claim in these proceedings. 4. On 30 June 2006, Johnson J dismissed the further amended statement of claim under r 13.4 of the UCPR and ordered the plaintiff to pay the State's costs: Clark v State of New South Wales (2006) 66 NSWLR 640; [2006] NSWSC 673. 5. On 22 May 2012, the Court of Appeal: 1. granted the plaintiff leave to appeal against Johnson J's orders and set aside those orders; 2. ordered that pars 2(2), 2(b), 5-12, 35(b), 35(c), 38 and 39 of the further amended statement of claim be struck out; 3. directed the plaintiff to file within three months a second further amended statement of claim removing references to the persons and causes of action previously pleaded in those paragraphs identified in (2) above; and 4. ordered each party to pay his or its own costs of the appeal: Clark v State of New South Wales [2012] NSWCA 139. 1. The paragraphs which were struck out in large measure related to the alleged conduct in 1997 and the Court of Appeal effectively allowed the proceedings to continue in respect of the alleged conduct in 2000. In particular, it can be noted that the Court of Appeal did not strike out the whole of the plaintiff's claim based on abuse of process as pleaded in par 35 of the further amended statement of claim but only the allegations in subpars (b) and (c) of the particulars. Paragraph 35 was originally in the following terms: "35. Further, in the alternative, the Plaintiff repeats the matters set out in the paragraphs above and says that the criminal process was utilised by one or more of the offices referred to in paragraph 2 above so as to effect an object not properly within the scope of such process in consequence whereof the Plaintiff has suffered loss and damage. In the premises the Defendant is guilty or the tort of abuse of process. Particulars of improper object (a) Utilising the criminal process in an effort to justify the unlawful charging and arrest of the Plaintiff on 11 June 1997; 21 February 2000 and 29 February 2000. (b) Utilising the criminal process in an effort to conceal the earlier improper investigations against the Plaintiff. (c) Utilising the criminal process in order to conceal improper conduct on the part of the police officers. (d) Utilising the criminal process in order to occasion to the Plaintiff financial harm and loss. Particulars of special damage (e) The Plaintiff was unable to attend his work upon the days he was required to attend court and/or required to consult with this Solicitor and/or Barrister for the various proceedings. (f) Legal expenses. (g) Telephone calls. (h) Travelling expenses. (i) Any further claims for out-of-pocket expenses will be particularised prior to the hearing." 1. It appears that, by striking out subpars (b) and (c) of the particulars to par 35, the Court of Appeal intended to limit the matters particularised to the alleged events in 2000 and to exclude any reliance on allegations relating to events in 1997 (see for example [99], [101] to [102], [104] and [108] of the Court of Appeal's judgment). 2. On 10 December 2012, the plaintiff filed a notice of motion seeking to consolidate the pleadings in these proceedings commenced in 2002 and the pleadings in other proceedings instituted by him in 2005 into a single statement of claim. This application was heard by Hidden J. 3. On 17 June 2014, Hidden J delivered his judgment, Clark v State of New South Wales; Clark v Robards & Ors [2014] NSWSC 742, and made orders as follows: "108. Accordingly, in relation to the 2002 proceedings I made the following orders: (1) The time for compliance with the direction made by the Court of Appeal [concerning the filing of a second further amended statement of claim] on 22 May 2012 is extended until 4.00pm on 30 June 2014. (2) Should the plaintiff fail or decline to comply with that direction, the proceedings are dismissed for want of due despatch pursuant to r 12.7 of the Uniform Civil Procedure Rules. (3) The parties have liberty to apply. 109. The plaintiff's motion to amend the pleading in both the 2002 and 2005 proceedings in a consolidated statement of claim is dismissed, as is his motion in respect of his conditions of custody. 110. The 2005 proceedings are dismissed, and the plaintiff is to pay the State's costs of those proceedings. The parties have liberty to apply in respect of the costs of the 2002 proceedings, including the motion to amend insofar as it related to those proceedings." 1. Consequently, these proceedings were permitted to continue, in relation to the causes of action identified by the Court of Appeal in 2012. 2. On 27 June 2014, the plaintiff filed his amended pleading in these proceedings, within the time permitted by Hidden J. 3. On 18 August 2017, the plaintiff filed an amended notice of motion seeking, inter alia, leave under the Felons (Civil Proceedings) Act 1981 (NSW) to add certain new causes of action to the 2002 proceedings and otherwise seeking leave to file a third further amended statement of claim, the proposed form of which was dated 18 August 2017. 4. On 10 October 2017, Beech-Jones J dealt with the application for leave to file the proposed third further amended statement of claim, among other things, in Clark v State of NSW [2017] NSWSC 1414. In that judgment, his Honour in effect rejected those paragraphs which sought to add new causes of action to these proceedings. More specifically, pars 7 and 8 of the proposed third further amended statement of claim were rejected for the reasons given at [18] to [22], pars 22 to 33 for the reasons at [25] to [36], pars 34 and 35 for the reasons at [37] and [38], pars 36 to 39 for the reasons at [39], pars 40 to 47 at [40] to [42], pars 48 to 53 at [43] to [49], pars 54 to 60 for the reasons at [50] to [55], pars 61 to 80 for the reasons at [56] to [62]. 5. The proposed third further amended statement of claim did not, however, end at par 80. Paragraphs 81 to 92 of that document covered matters with the following headings: 1. "Damages" – pars 81 to 84; 2. "Abuse of process" – par 85; 3. "Claim for aggravated damages" – par 86; 4. "Claim for exemplary damages" – par 87; and 5. "Claim for economic loss" – pars 88 to 92. 1. Although nestled among claims for damages and economic loss, par 85 pleaded a cause of action of abuse of process in terms which were similar to those pleaded in par 35 of the pleading considered by the Court of Appeal in its 2012 judgment. Paragraph 85 of the proposed third further amended statement of claim was in the following terms: "85. Further, in the alternative, the Plaintiff repeats the matters set out in the paragraphs above and says that the criminal process was utilised by one or more of the offices referred to in paragraph 2 above so as to effect an object not properly within the scope of such process in consequence whereof the Plaintiff has suffered loss and damage. In the premises the Defendant is guilty or the tort of abuse of process. Particulars of improper object (a) Utilising the criminal process in an effort to justify, where applicable, the unlawful arrest(s) and charging of the Plaintiff. (b) Utilising the criminal process in an effort to conceal the earlier improper investigations against the Plaintiff. (c) Utilising the criminal process in order to conceal improper conduct on the part of the 'said' police officers. (d) Utilising the criminal process to intimidate the Plaintiff from proceeding with this statement of claim or his next statement of claim, SC No: 2005 / 00269279. (e) Utilising the criminal process in order to occasion to the Plaintiff financial harm and loss. (f) Utilising the criminal process to prevent the Plaintiff from being able to properly prosecute the Further Amended Statement of Claim version of this claim and being awarded many millions of dollars in damages. Particulars of special damage (e) The Plaintiff was unable to attend his work upon the days he was required to attend court and/or required to consult with this Solicitor and/or Barrister for the various proceedings. (f) Legal expenses. (g) Telephone calls. (h) Travelling expenses. (i) Any further claims for out-of-pocket expenses will be particularised prior to the hearing." 1. It can be seen that par 85 does not seek to plead additional factual matters to establish the abuse of process cause of action. The factual foundation is limited to "the matters set out in the paragraphs above" but it includes subpars (b) and (c) of the particulars, versions of which were struck out by the Court of Appeal in 2012. It does not appear that this aspect of the Court of Appeal's decision was brought to his Honour's attention. 2. Beech-Jones J's decision in relation to the proposed third further amended statement of claim was summarised in [63] and [64] of his judgment as follows: "63. The results of these determinations is that paragraph 2 of the proposed 3 FASOC and paragraph 81 onwards will need to be reconsidered to conform with my findings. 64. Accordingly, I order: The plaintiff is to file and serve a statement of claim within 28 days that gives effect to these reasons and specifically that only pleads the facts, matters, circumstances and causes of action referred to in paragraphs 4, 5, 6, 9, 10 to12 and 13 to 21 of his proposed Third Further Amended Statement of Claim." 1. Beech-Jones J's orders did not prohibit the plaintiff from maintaining the pleading of abuse of process in par 85, to the extent that it was based on the facts pleaded in paragraphs 4, 5, 6, 9, 10 to 12 and 13 to 21 of the proposed third further amended statement of claim. 2. On 9 July 2020, after a significant number of other appellate and interlocutory steps, these proceedings were listed for directions before the Registrar. On that day, the plaintiff was directed to file and serve a form of statement of claim giving effect to Beech-Jones J's reasons in his 10 October 2017 judgment (relevant portions of which have been referred to above) by 6 August 2020. 3. On 24 July 2020, the plaintiff filed a further amended statement of claim headed "Further Amended Statement of Claim – Version 20 July 2020" (the "24 July 2020 statement of claim"). An unfiled version of this document had been provided to the solicitor acting for the State on 20 July 2020. 4. On 6 August 2020 a sealed copy of the 24 July 2020 statement of claim was provided to the State. Thus, the plaintiff filed and served the 24 July 2020 statement of claim within the time specified in the Registrar's direction of 9 July 2020. 5. The 24 July 2020 statement of claim contained par 27 which pleaded the abuse of process cause of action, with minor variations from the terms in which that cause of action had pleaded in earlier versions of the statement of claim. Paragraph 27 was as follows: "27. Further, in the alternative, the Plaintiff repeats the matters set out in the paragraphs above and says that the criminal process was utilised by one or more of the officers referred to in paragraph 2 above so as to effect an object not properly within the scope of such process in consequence whereof the Plaintiff has suffered loss and damage. In the premises the Defendant is guilty of the tort of abuse of process. Particulars of improper object (a) Utilising the criminal process in an effort to justify, where applicable, the unlawful arrest and charging of the Plaintiff on 21 February 2000 and 29 February 2000. (b) Utilising the criminal process in an effort to conceal the earlier improper investigations against the Plaintiff. (c) Utilising the criminal process in order to conceal improper conduct on the part of the 'said' police officers. (d) Utilising the criminal process to intimidate the Plaintiff from proceeding with this Statement of Claim. (e) Utilising the criminal process in order to occasion to the Plaintiff financial harm and loss. (f) Utilising the criminal process to prevent the Plaintiff from being able to properly prosecute this Statement of Claim version and being awarded a significant sum of damages. Particulars of special damage (i) The Plaintiff was unable to attend his work upon the days he was required to attend Court, or the time he was imprisoned or was required to consult with his solicitor and/or Barrister for the various proceedings. (ii) Damages that would have been awarded if this Statement of Claim had been allowed to proceed if not for the later prosecutions being set in place to intimidate and/or to dissuade the Plaintiff from proceeding with this claim. (iii) Legal expenses. (iv) Telephone calls. (v) Travelling expenses. (vi) Any further claims for out-of-pocket expenses will be provided prior to the hearing." 1. On 12 August 2020, the solicitor for the State sent a letter by facsimile to the plaintiff in which it was stated that "[the 24 July 2020 statement of claim] is in substantial compliance with the order made by Justice Beech-Jones. However, the plaintiff was not given leave to plead the matters set out under paragraph 27 of the [24 July 2020 statement of claim], being a purported cause of action in 'abuse of process'. I invite you to remove paragraph 27 of the proposed [sic] Further Amended Statement of Claim as there is no such tort as 'abuse of process': Edwards v The State of New South Wales [2017] NSWSC 459 per Davies J at [11] and the catch all abuse of process claim in this matter has been struck out without liberty to replead." 1. It does not appear to me, on a proper reading of the Court of Appeal's 2012 judgment, Hidden J's 2014 judgment and Beech-Jones J's 2017 judgment, that it is correct to say that the abuse of process claim based on alleged events in 2000 "has been struck out without liberty to replead". Consequently, the solicitor for the State's letter of 12 August 2020 proceeded on a false assumption. 2. On 12 August 2020, the plaintiff responded to the solicitor for the State's letter and stated: "1. There appears to be some confusion in that Justice Peter Hidden allowed me to replead the Statement of Claim filed by my then solicitor Gregory Walsh. I attach a Court sealed copy for your reference. 2. That version pleads 'abuse of process' as a tort at par 35. 3. As Mr Walsh is a very learned 'Tort' law specialist. I am reluctant to remove my par 27 of my [24 July 2020 statement of claim] that relates to 'abuse of process' in the alternative. …" 1. In all the circumstances, this appeared to me a not unreasonable response. 2. On 13 August 2020, the Registrar directed the plaintiff to file and serve a "second further amended statement of claim" by 21 August 2020 and stood the matter over for further directions on 27 August 2020. From the plaintiff's letter of 14 August 2020, it appeared that the Registrar had been informed on 13 August 2020 by counsel appearing for the State that Beech-Jones J had refused the plaintiff leave to plead or replead the abuse of process part of his statement of claim and that this was the basis for the Registrar's order. 3. Later that same day, the plaintiff sent a facsimile to the solicitor for the State and the Principal Registrar attaching an unsealed document headed "Further Amended Statement of Claim Version – 13 August 2020". This version appears to be substantially the same as the 24 July 2020 statement of claim except that the heading "Abuse of Process" which appeared before par 27 was deleted albeit with the content of par 27 remaining unchanged. 4. On 14 August 2020, the plaintiff wrote a further letter to the Registrar and the solicitor for the State in which he noted what the Registrar had been told on 13 August 2020 concerning Beech-Jones J's judgment and continued: "2. Believing… counsel, was correct in what he put before the Court, I consented to filing a FASOC version 13 August 2020 minus any reference to 'abuse of process' and did so promptly by fax. 3. However, later that day I was able to gain access to his Honour's judgment. After careful examination I discovered that [counsel] was, in fact, in 'error'. That his Honour had, in fact, given orders allowing me to re-plead the 'abuse of process' part of my claim. I quote the relevant paragraphs of his Honour's judgment [the plaintiff then set out [63] and [64] of Beech-Jones J's judgement which have been quoted above]. 4. Based on the facts I withdraw my FASOC the version 13 August 2020 filed by fax yesterday.…" 1. On 20 August 2020, the plaintiff wrote a further letter to the Principal Registrar and the solicitor for the State in which he reiterated his withdrawal of the further amended statement of claim version 13 August 2020 and that he intended to rely on the 24 July 2020 statement of claim. 2. Once again, it does not appear to me that these responses on the plaintiff's part were entirely unreasonable in the circumstances. 3. On 27 August 2020, the Registrar directed the State to file and serve any notice of motion seeking a dismissal of the claim by 10 September 2020 with the motion to be returnable on 1 October 2020. 4. On 14 September 2020, not apparently within the time permitted by the Registrar, the State filed the notice of motion seeking, in effect, to have the proceedings summarily dismissed. This is the application which was before me for hearing on 4 and 30 March 2021. Dismissal for want of due despatch 1. The first ground for dismissal relied upon by the State was that the plaintiff had not prosecuted the proceedings with due despatch. Rule 12.7 of the UCPR relevantly provides: "(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit." 1. As a general proposition, when there has been no hearing on the merits, a court should be reluctant to make an order dismissing proceedings for want of due despatch, unless there has been an intentional and contumelious default on the part of the plaintiff, or inordinate or inexcusable delay giving rise to a substantial risk that a fair trial would not be possible: Birkett v James [1978] AC 297 at 318; Green v Healthscope Ltd (t/as Hills Private Hospital) [2015] NSWCA 325 (Green) at [26]. In considering the application of this proposition in the context of r 12.7 it is, however, necessary to have regard to the "overriding purpose" referred to in s 56 of the Civil Procedure Act 2005 (NSW), being to "facilitate the just, quick and cheap resolution of the real issues in the proceedings": State of New South Wales v Plaintiff A [2012] NSWCA 248 at [17]; Hobbs v Australian Securities and Investments Commission [2013] NSWCA 432 at [52]; Green at [26]. 2. The substance of the State's submissions in this regard was that: 1. in October 2017, the plaintiff was granted conditional leave to amend; 2. the plaintiff did not replead his claim in the terms permitted within the time permitted; 3. the plaintiff "first indicated an intention to plead his claim in accordance with the leave granted by Beech-Jones J in August 2020"; 4. the plaintiff "quickly resiled from that intention and now wishes to rely on an earlier version of his pleading which does not comply with the leave granted"; and 5. the plaintiff has "offered to the Court no account for his present approach". 1. The State was not, on this application, relying on any delay between the commencement of proceedings and 10 October 2017. 2. The period between Beech-Jones J's judgment on 10 October 2017 and 9 July 2020, when the Registrar directed the plaintiff to file a version of the statement of claim complying with Beech-Jones J's judgment, appears to have involved a number of appeals and applications. No specific submission was made as to what occurred or what should have occurred during this period but did not come to fruition. No application for dismissal for want of due despatch was made by the State prior to 9 July 2020. 3. Moreover, on 9 July 2020 the matter was listed before the Registrar, at which time no application was made, or even foreshadowed, for dismissal under r 12.7 of the UCPR. In the circumstances, I am not prepared to conclude that there was such a want of due despatch, during the period from 10 October 2017 and 9 July 2020, as to justify a conclusion that it would be just to dismiss the proceedings under r 12.7 now, especially given that further steps have been taken by both parties in these proceedings as a result of the directions given on 9 July 2020 by the Registrar. It would also not in my view facilitate the just, quick and cheap resolution of the real issues in the proceedings now to order that the proceedings be dismissed for want of due despatch during the period from 10 October 2017 and 9 July 2020, since this would be likely to entail at least a further appeal and possibly other interlocutory steps. 4. On 9 July 2020, the plaintiff was directed to file and serve a form of statement of claim giving effect to Beech-Jones J's 10 October 2017 judgment by 6 August 2020. The plaintiff complied with that direction by filing the 24 July 2020 statement of claim. 5. The State accepted that the 24 July 2020 statement of claim complied with Beech-Jones J's 2017 judgment except for the inclusion of the abuse of process pleading in par 27. For the reasons given above, I am of the view that the State misapprehended what the plaintiff was permitted to plead by Beech-Jones J. The plaintiff was entitled to plead the abuse of process cause of action in the form articulated in par 27, subject to the limitations identified in that regard in the Court of Appeal's 2012 judgment. 6. The plaintiff's responses of 12 and 14 August 2020, which explained why the plaintiff did not accept the State's position that he was not entitled to plead the abuse of process cause of action, were, as I have already indicated, not unreasonable. Consequently, having regard to my conclusions concerning what the plaintiff was permitted to plead by the Court of Appeal's 2012 judgment, Hidden J's 2014 judgment and Beech-Jones J's 2017 judgment set out above, I do not accept that the plaintiff "quickly resiled from that intention and now wishes to rely on an earlier version of his pleading which does not comply with the leave granted" or that the plaintiff has "offered to the Court no account for his present approach". As I have already explained, the State's submissions appear to be based on a misunderstanding of what the earlier judgments permitted the plaintiff to plead. Properly understood, each of those judgments permitted the plaintiff to plead his abuse of process cause of action, except that the Court of Appeal struck out subpars (b) and (c) of the particulars and limited the factual basis for the claim to the events in 2000. 7. As noted above, it does not appear that the Court of Appeal's striking out of subpars (b) and (c) of the particulars to the abuse of process pleading was specifically brought to the attention of Beech-Jones J when his Honour was considering the form of the pleading in 2017. The other relevant aspects of Beech-Jones J's judgment were consistent with the Court of Appeal's 2012 judgment and Hidden J's 2014 judgment. 8. At the hearing before me on 30 March 2021, when these matters were brought to the plaintiff's attention, he conceded that subpars (b) and (c) of the particulars to par 27 of the 24 July 2020 statement of claim (which were identical to subpars (b) and (c) in the form of the pleading considered by the Court of Appeal) should be deleted from the 24 July 2020 statement of claim. Otherwise, the conduct in par 27 alleged to have given rise to the abuse of process pleaded in the 24 July 2020 statement of claim is limited to the conduct which occurred in 2000, in accordance with the Court of Appeal's judgment. 9. In light of what has occurred since 9 August 2020 and the reasons given by the plaintiff for his approach, there does not appear to me to have been any relevant want of due despatch on his part such as would justify summary dismissal. Consequently, I refuse to dismiss the plaintiff's proceedings under r 12.7 of the UCPR. Nonetheless, in light of the plaintiff's proper concession concerning subpars (b) and (c) of the particulars to par 27 of the 24 July 2020 statement of claim, I propose to order that those subpars (b) and (c) be struck out and that they should be ruled through on the Court file copy of the 24 July 2020 statement of claim with the notation "Struck out by order of Wright J on 16 April 2021". In this way, the pleading will be amended without the necessity for the plaintiff to file a further document. Dismissal as vexatious and an abuse of process 1. The second ground for summary dismissal relied upon by the State was that the plaintiff's proceedings were vexatious and an abuse of process. In that regard, r 13.4 of the UCPR relevantly provides: "(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings— (a) the proceedings are … vexatious, or … (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)." 1. Generally, the test to be applied is that the case of the plaintiff must be so clearly untenable that it cannot possibly succeed: General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 at 130; [1964] HCA 69 (Barwick CJ). Once it appears that there is a real question to be determined, whether of fact or law, and that the rights of the parties depend upon it, then proceedings should not be dismissed as vexatious or an abuse of process: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 (Dey) at 91 (Dixon J); [1949] HCA 1. There will be a "real question" unless the defendant can show that it was so certain that the question must be answered in the defendant's favour that it would amount to an abuse of the process of the court to allow the action to go forward for determination: Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 (Spencer) at [54] (Hayne, Crennan, Kiefel and Bell JJ). 2. In light of those principles, exceptional caution should be exercised and demonstrated certainty of the outcome of the litigation is required before proceedings are summarily dismissed under r 13.4(1): Spencer at [55]; Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 at [30] (Leeming JA). 3. The concepts of "vexatious" and "abuse of process" in r 13.4(1) are not necessarily distinct and they tend to overlap. "Vexatious", in this and similar contexts, refers to proceedings that are productive of serious and unjustified trouble or harassment: Regie Nationale des Usines Renault SA & Anor v Zhang (2002) 210 CLR 491; [2002] HCA 10 at [25] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). Further, vexatious proceedings can also be instances of proceedings that are an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393; [1993] HCA 77 (Mason CJ, Deane and Dawson JJ). 4. The State did not submit that the 24 July 2020 statement of claim, in so far as it was within the scope of the leave granted by Beech-Jones J, did not disclose a cause of action or was frivolous. It was submitted in substance that the proceedings were vexatious and an abuse of process because they involved "an attempt to re-litigate a question that had already been determined", which amounted to an abuse of process. It was contended in effect that [64] of Beech-Jones J's 2017 judgment, which has been quoted above, expressly limited the causes of action that the plaintiff could plead to those specified in that paragraph and these did not include abuse of process as pleaded in par 85 of the form of pleading considered by his Honour (which corresponds with par 27 of the 24 July 2020 statement of claim). 5. I do not accept that this provides a sufficient basis for dismissing the proceedings under r 13.4 of the UCPR for a number of reasons. First, the State's contention only relates to the pleading of abuse of process in par 27 of the 24 July 2020 statement of claim and does not affect the remainder of the pleading. Notwithstanding this, the State appeared to contend that the whole of the proceedings should be dismissed. I can see no basis why the whole of the proceedings should be dismissed in the circumstances. 6. Secondly, I did not understand Beech-Jones J to have intended to prevent the plaintiff from relying on the cause of action pleaded in par 85 of the form of pleading before his Honour. At [63] of his judgment, Beech-Jones J said "paragraph 81 onwards will need to be reconsidered to conform with my findings". In so saying, his Honour was indicating that the material facts relied upon by the plaintiff to support the pleadings in par 81 onwards, including par 85, were limited to those which had been pleaded earlier in pars 4, 5, 6 and 9 to 21, as specified in [64]. Paragraph 27 of the 24 July 2020 statement of claim is consistent with this approach. 7. Thirdly, even if I am wrong concerning what Beech-Jones J intended, since his Honour's attention was not drawn to the fact that the Court of Appeal in its 2012 judgment permitted the plaintiff to plead the abuse of process cause of action, now contained in par 27 of the 24 July 2020 statement of claim provided that subpars (b) and (c) of the particulars to that paragraph are deleted and the alleged conduct is limited to that in 2000, it does not appear to me that his Honour's judgment should be taken to prohibit what the Court of Appeal permitted. Hidden J in his 2014 judgment did not take a different approach from that of the Court of Appeal. In these circumstances, there does not appear to me to be any reason why the plaintiff should not be entitled to plead par 27 in the statement of claim to be relied upon by him, with subpars (b) and (c) of the particulars struck out. 8. This is simply not a case where it can be concluded, without a hearing on the merits, that the plaintiff's claims, including those pleaded in pars 4, 5, 6 and 9 to 21 as well as par 27 of the 24 July 2020 statement of claim, are so certain to be determined in the State's favour that it would be vexatious or an abuse of process to allow the proceedings to continue. 9. For these reasons, I refuse to dismiss the plaintiff's claim summarily under r 13.4 of the UCPR. Costs 1. The State has been unsuccessful on its application for summary dismissal. Nonetheless, the plaintiff has now conceded that subpars (b) and (c) of the particulars to par 27 of the 24 July 2020 statement of claim should be struck out, consistently with the Court of Appeal's decision in 2012. To that very limited extent, the defendant has enjoyed some success. In all the circumstances, it appears to me that the appropriate order is that the costs of the notice of motion should be the plaintiff's costs in the cause. Preparation of the matter for hearing 1. It is essential, and as I understand it both parties accept, that the matter should be prepared for hearing as soon as possible. To this end, I propose to direct that the State file its defence and that the plaintiff should serve all of the evidence on which he relies within a certain period, or such longer period as the Registrar may determine, and then the State should be required to file its evidence similarly. The plaintiff should be allowed time to file any evidence in reply. Once those steps are taken, the matter should then be listed before the Registrar, on which occasion any further preparatory steps could be addressed and a date set for the final hearing. Conclusion and orders 1. For these reasons, the Court orders and directs that: 1. Subparagraphs (b) and (c) of the particulars to paragraph 27 of the plaintiff's further amended statement of claim filed on 24 July 2020 are to be struck out by being ruled through on the Court file copy with the notation "Struck out by order of Wright J on 16 April 2021". 2. The defendant's notice of motion filed on 14 September 2020 is otherwise dismissed. 3. The costs of the motion filed on 14 September 2020 are to be the plaintiff's costs in the cause. 4. The defendant is to file and serve its defence on or before 30 April 2021. 5. The plaintiff is to serve on the defendant the evidence upon which he intends to rely, including signed evidentiary statements from all witnesses and copies of all documents, on or before 12 July 2021, or such other time as the Registrar may direct. 6. The defendant is to serve on the plaintiff the evidence upon which it intends to rely, including signed evidentiary statements from all witnesses and copies of all documents, on or before 4 October 2021, or such other time as the Registrar may direct. 7. The plaintiff is to serve on the defendant any evidence in reply, on or before 1 November 2021, or such other time as the Registrar may direct. 8. The matter is listed for directions before the Registrar on 5 November 2021. 9. The parties have liberty to apply to the Registrar to have the matter relisted on 3 days' notice. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2021