Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Clark v Robards (No 3) [2016] NSWCA 354 Hearing dates: On the papers Decision date: 15 December 2016 Before: Basten JA; Simpson JA; Emmett AJA. Decision: Dismiss the applicant's notice of motion filed on 17 November 2016. Catchwords: PRACTICE AND PROCEDURE –application to reopen judgment –– whether applicant a person under legal incapacity – Uniform Civil Procedure Rules 2005 (NSW), r 7.13 – issues raised before hearing – whether any "irregularity" in judgment – matter available to be raised, but not raised, at hearing – relief sought exceptional Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 63 Uniform Civil Procedure Rules 2005 (NSW), rr 7.13, 7.14, 36.15, 36.16; Pt 36, Div 4 Cases Cited: Clark v Robards (No 2) [2016] NSWCA 249 Clark v Robards [2016] NSWCA 187 Clark v Commissioner for Corrective Services [2016] NSWCA 186 Murphy v Doman (2003) 58 NSWLR 51; [2003] NSWCA 249 Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 362 Category: Procedural and other rulings Parties: Peter Frederick Clark (Appellant) Timothy Neil Robards (First Respondent) Terrence Lloyd Robards (Second Respondent) State of New South Wales (Third Respondent) Representation: Counsel: Self-represented (Appellant) Solicitors: Self-represented (Appellant) File Number(s): 2014/164527 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2014] NSWSC 742 Date of Decision: 17 June 2014 Before: Hidden J File Number(s): 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. 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. 2. 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. 3. Three grounds were set out in the notice of motion, in the following terms: "1. The hearing before the Court of Appeal and before the primary judge were conducted contrary to the provisions of r 7.13 and r 7.14 Uniform Civil Procedure Rules 2005 this led to a miscarriage of justice as the Applicant (Plaintiff) was 'lawfully incapacitated'. 2. Both the primary judge and this Court contrary to the decision of Harrison J forced the Applicant/Plaintiff to prosecute the Respondent's motion to dismiss the 2005 proceedings and the subsequent appeal to that dismissal when the Applicant (Plaintiff) was 'lawfully incapacitated' which led to a miscarriage of justice. 3. The Third Respondent (State of NSW) refused to supply the Applicant with a full copy of the Uniform Civil Procedure Rules (UCPR) prior to (a) the hearing before the primary judge and (b) the leave and appeal hearings before this Court this led to a miscarriage of justice." 1. 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"). 2. Section 63 is in the following terms: 63 Directions with respect to procedural irregularities (1) This section applies to proceedings in connection with which there is, by reason of anything done or omitted to be done, a failure to comply with any requirement of this Act or of rules of court, whether in respect of time, place, manner, form or content or in any other respect. (2) Such a failure: (a) is to be treated as an irregularity, and (b) subject to subsection (3), does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings. (3) The court may do either or both of the following in respect of proceedings the subject of a failure referred to in subsection (1): (a) it may, by order, set aside the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings, either wholly or in part, (b) it may exercise its powers to allow amendments and to make orders dealing with the proceedings generally. (4) The court may not take action of the kind referred to in subsection (3) (a) on the application of any party unless the application is made within a reasonable time and, in any case, before the party takes any fresh step in the proceedings after becoming aware of the failure. 1. The relevant provisions in the UCPR, relied upon by the applicant, were the following: 36.15 General power to set aside judgment or order (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. (2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent. 36.16 Further power to set aside or vary judgment or order … (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. … (4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order. 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. "[15] The reference by the applicant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR") confirmed that the purpose of the motion was to 'set aside or vary a judgment or order', which involves, in common parlance, re-opening a decision which has been given. It may be assumed that r 36.16 was engaged because the application was concerned with so much of the relief sought by the applicant as had been dismissed. [6] The orders made on 30 September 2015 having been entered on that day, any application to vary or set aside those orders, as if not entered, had to be made within 14 days, [7] a time limit which was complied with by the filing of the notice of motion in the present case on 12 October. [16] Setting aside or varying orders involves a qualification of the principle of finality, otherwise than by the statutory method of appeal. However, as noted by Mason CJ in Autodesk Inc v Dyason [No 2], [8] in a passage relied on by the applicant in his submissions, 'the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law.' Importantly, Mason CJ continued: [9] 'However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.' [17] To that statement one may add two further notes of caution. First, there is a distinction to be drawn between the court acting upon a misapprehension as to the facts or the relevant law, on the one hand, and, on the other, the court reaching a conclusion which, in the view of the applicant for re-opening, involves a mistake. Secondly, there is a distinction to be drawn between the situation where the court misapprehends the facts, on the one hand, and, on the other, the situation where the court does not refer in its reasons to some matter which, in the belief of the person seeking re-opening, deserved express reference." 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. The notice of motion filed by the applicant on 17 November 2016 must be dismissed. ********* Endnotes 1. [2014] NSWSC 742 at [96]. 2. [2016] NSWCA 187. 3. [2016] NSWCA 249 at [3]. 4. [2016] NSWCA 186. 5. [2015] NSWCA 362 at [15]-[17]. 6. UCPR, r 36.16(3)(b). 7. UCPR, r 13.16(3A). 8. (1993) 176 CLR 300 at 302; see also De L v Director-General, New South Wales Department of Community Services [No 2] (1997) 190 CLR 207 at 215; Independent Commission Against Corruption v Kinghorn [2015] NSWCA 342 at [15]-[18]. 9. Autodesk at 303. 10. (2003) 58 NSWLR 51; [2003] NSWCA 249. 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: 15 December 2016