CLARK v STATE of NEW SOUTH WALES [2012] NSWCA 139

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: CLARK v STATE of NEW SOUTH WALES [2012] NSWCA 139 Hearing dates: Friday 27 April 2012 Decision date: 22 May 2012 Before: MACFARLAN JA at 1 HOEBEN JA at 2 TOBIAS AJA at 110 Decision: (1) Grant leave to appeal. (2) Allow the appeal in part. (3) Set aside the order made by Johnson J at [158]. (4) Allow the opponent's Notice of Motion to the extent that pars 2(a), 2(b), 5-12, 35(b), 35(c), 38 and 39 of the Further Amended Statement of Claim filed 23 April 2004 are struck out. (5) Direct the claimant to file a Second Further Amended Statement of Claim within three months removing any reference to the persons or causes of action previously pleaded in those paragraphs identified in order (4) hereof. (6) Each party to pay his or its own costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - direction by court that audio cassette tape be jointly examined by experts - tape said to contain evidence of police officer soliciting bribe - audio cassette tape destroyed by plaintiff - abuse of process - power to strike out or limit plaintiff's claim - whether proportionate response - Civil Procedure Act 2005 (NSW), sections 56-58 - PROCEDURE - Application to adduce additional evidence - reliance upon incompetence of counsel at trial - application to adduce additional evidence refused - APPEAL - discretionary orders - re-exercise of discretion. Legislation Cited: Civil Procedure Act 2005 Crimes Act 1900 Crown Proceedings Act 1998 Evidence Act 1995 Law Reform (Vicarious Liability) Act 1983 Supreme Court Act 1970 Unauthorised Documents Act 1922 Cases Cited: Allen v Tobias [1958] HCA 13; 98 CLR 367 Arrow Nominees Inc v Blackledge [2000] EWCA Civ 2000; All ER (D) 854 Batistatos v Roads and Traffic Authority of New South Wales and Newcastle City Council [2006] HCA 27; 226 CLR 256 British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197; 7 VR 524 Clark v State of NSW [2006] NSWSC 673, 66 NSWLR 640 Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 at 292D Fuji Xerox Australia Pty Ltd v Lee [2003] QSC 303 General Steel Industries Inc v Commissioner for Railways (NSW) and Ors (1964) 112 CLR 125 House v The King (1936) CLR 499 at 505 Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181 Logicrose Ltd v Southend United Football Company Ltd (No 1) (1998) 132 SJ 1591; Times, March 5, 1988 (Chancery Division) Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 Nominal Defendant v Manning [2000] NSWCA 80, 50 NSWLR 139 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 R v Clark [2002] NSWCCA 16 Radnedge v Government Insurance Office of NSW (1987) 9 NSWLR 235 at 249A, 251G-252A,G Smits and Anor v Roach and Ors [2006] HCA 36; 227 CLR 423 at [46] Category: Principal judgment Parties: Peter Frederick Clark - Claimant State of New South Wales - Opponent Representation: Counsel: App in person Mr J Sheller/Mr D Joyce - Claimant [Amicus] Mr M Neil QC/Mr A Williams - Opponent Solicitors: App in person IV Knight, Crown Solicitor - Opponent File Number(s): 2004/175469 2006/267927 Decision under appeal Citation: Clark v State of NSW [2006] NSWSC 673, 66 NSWLR 640 Before: 20233/2002 - Wood CJ at CL 2006/267927 - Johnson J File Number(s): 20233/2002 2006/267927