Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Clark v Robards (No 2) [2015] NSWCA 190 Hearing dates: On the papers Decision date: 08 July 2015 Before: Beazley P at [1]; Basten JA at [2] Decision: (1) Grant the applicant leave to commence proceedings for leave to appeal and, to the extent leave has been granted, to commence an appeal in this Court from the judgment of Hidden J given on 17 June 2014, pursuant to the Felons (Civil Proceedings) Act 1981. (2) Otherwise dismiss the motions. (3) The costs of the motions to be costs in the appeal. Catchwords: PRACTICE and PROCEDURE - application for leave to appeal - reopening application - whether order based on misunderstanding - whether order ambiguous - grant of leave under Felons (Civil Proceedings) Act 1981 (NSW) Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW) Limitation Act 1969 (NSW), s 50F Uniform Civil Procedure Rules 2005 (NSW), r 12.7 Cases Cited: Clark v Robards [2015] NSWCA 140 Potier v Attorney General in and for the State of New South Wales [2015] NSWCA 129 Category: Consequential orders (other than Costs) Parties: Peter Frederick Clark (Applicant) Timothy Neil Robards (First Respondent) Terrence Lloyd Robards (Second Respondent) State of New South Wales (Third Respondent) Representation: Counsel: Applicant self-represented Mr A N Williams (Third Respondent) Solicitors: Applicant self-represented R Kelly – Acting Crown Solicitor (Third Respondent) File Number(s): CA 2014/164527 Decision under appeal Court or tribunal: Supreme Court Citation: Clark v State of New South Wales; Clark v Robards & Ors [2014] NSWSC 742 Date of Decision: 17 June 2014 Before: Hidden J File Number(s): 2002/69098; 2005/269279 [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.] Judgment 1. BEAZLEY P: I agree with Basten JA. 2. BASTEN JA: On 22 May 2015 the Court as presently constituted granted the applicant leave to appeal against so much of the judgment of Hidden J as dismissed causes of action contained in certain paragraphs in a proposed amended statement of claim. [1] The effect of the judgment under review was to dismiss an action commenced by the applicant, known as "the 2005 proceeding". The summons seeking leave to appeal was otherwise dismissed. 3. By a notice of motion filed on 25 May 2015 the applicant sought to re-open that judgment in a manner which would allow him to re-plead parts of the pleadings which had been struck out and with respect to which he had not been granted leave to appeal. In the alternative he sought leave to file a new statement of claim in relation to those issues. 4. In support of that motion the applicant filed written submissions in the form of an affidavit, also filed on 25 May 2015. He raised two grounds in support of his application. The first was a failure to apply s 50F of the Limitation Act 1969 (NSW); the second was a failure to deal with an application under the Felons (Civil Proceedings) Act 1981(NSW). 5. With respect to the first ground, s 50F of the Limitation Act deals with persons "under a disability". If a prisoner is substantially impeded in the management of his or her affairs because held in custody, that person may be an "incapacitated person". [2] Where a person is an incapacitated person for a period of more than 28 days, he or she is a person under a disability. It may be accepted that for various periods identified in the earlier judgment, the applicant was a person under a disability. However, the only effect of that status, relevant for present purposes, is that it will suspend the running of a limitation period for the duration of the disability. 6. No issue with respect to limitation periods arises in the proposed appeal. The proceedings in this Court seeking damages for personal injury were, with one particular exception, commenced prior to the applicant's first period of incarceration. The applicant's submissions appear to assume that a period of suspension under the Limitation Act would prevent proceedings which had been commenced being dismissed for want of due dispatch under the Uniform Civil Procedure Rules 2005 (NSW), r 12.7. However, that is not so: s 50F of the Limitation Act says nothing about the due prosecution of proceedings once commenced. It is common experience that persons in custody will have difficulties pursuing civil proceedings in a timely fashion: however, that is a matter to be taken into account by the court where proceedings are sought to be struck out for want of progress. Those considerations were addressed by Hidden J and were referred to by this Court in its earlier judgment. 7. The second matter falls into a different category. It concerned certain new claims for damages arising out of events which occurred whilst the applicant was in custody. The Court noted that the most serious of those events was an alleged attack on 14 November 2007. [3] As the Court remarked, it was not entirely clear how those claims had been dealt with in the judgment from which leave to appeal was sought. However, because they involved civil proceedings within the Felons Act, they could not be commenced without leave and, accordingly, no leave having been granted, they could be the subject of an application for a grant of leave to commence new proceedings at any time. 8. The applicant did not directly dispute that analysis: rather, he noted that leave had been sought under the Felons Act before Hidden J, but had not been granted and, as the applicant put it, had not been adjudicated upon. The applicant now contends that Hidden J was in error in taking that approach and that this Court should now address that matter. 9. The reference in this Court's judgment to the need for leave under the Felons Act was not made in ignorance of the fact that an application for leave had been made, as noted by Hidden J in his reasons. [4] Rather, the reference was intended to indicate that the applicant would not be prejudiced by a refusal of leave to amend to include new claims. Hidden J referred to particular proposed claims as giving rise to specific problems. [5] However, the primary reason given for not allowing the proposed amendments was that they would raise new causes of action which should be dealt with in separate proceedings. [6] 10. There was no arguable case that the primary judge was wrong in that regard. It will often be inappropriate to seek to amend existing pleadings to add further unrelated causes of action which have arisen after the commencement of the proceeding, where the only common factor is that the plaintiff and one defendant are the same. There is nothing in the judgment of Hidden J which would prevent the applicant seeking leave under the Felons Act in order to commence fresh proceedings in relation to the new claims. As this Court noted in Potier v Attorney General in and for the State of New South Wales, [7] there is some flexibility in how a court may deal with an application under the Felons Act in respect of civil proceedings to which it applies. 11. That is sufficient to dispose of the applicant's motion to re-open the earlier judgment of the Court: it should be dismissed. However, counsel for the State has raised two separate issues in submissions in response to the applicant's motion, which should be treated as a separate motion. 12. The first issue is favourable to the applicant. Counsel noted that the application for leave to appeal was accompanied by an application for leave under the Felons Act. That application was not disposed of in the earlier judgment but the decision to grant limited leave to appeal should have been accompanied by a similarly limited grant of leave under the Felons Act. That submission should be accepted. The Court should make a further order, namely: Grant the applicant leave to commence proceedings for leave to appeal and, to the extent leave has been granted, to commence an appeal in this Court from the judgment of Hidden J given on 17 June 2014, pursuant to the Felons (Civil Proceedings) Act 1981 (NSW). 1. The second matter raised by counsel for the State concerned the form of the order made by this Court in granting leave to appeal. Rather than granting leave to appeal 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 … considered by Harrison J in June 2010" the order should have referred to "causes of action expressed in the proposed further amended statement of claim and which were before Harrison J in June 2010 …". 2. It is true that the judgment of Hidden J dismissed the proceedings and thus dismissed the causes of action contained within the proposed pleading. The grant of leave sought to isolate those parts of the pleading which this Court was content to reconsider. There was no ambiguity in the order as made, of a kind which would cause doubt as to the scope of the proposed appeal. If the appeal is successful, the final orders will have the effect of allowing the applicant to reinstate (by repleading) any relevant cause of action. Accordingly, there is no need to amend the order. 3. The costs of the motions addressed in these reasons should be costs in the appeal. ********** Endnotes 1. Clark v Robards [2015] NSWCA 140. 2. Section 50F(4)(b). 3. Judgment at [36]. 4. Clark v State of New South Wales; Clark v Robards & Ors [2014] NSWSC 742 at [75]. 5. Hidden J at [77]. 6. Hidden J at [78]. 7. [2015] NSWCA 129 at [76] (Leeming JA). Amendments 08 July 2015 - Adding catchwords - coversheet 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: 08 July 2015