Supreme Court New South Wales Medium Neutral Citation: Clark v State of NSW [2017] NSWSC 1414 Hearing dates: 10 October 2017 Date of orders: 10 October 2017 Decision date: 10 October 2017 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) 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. (2) On or before 10 December 2017, the defendant is to file and serve an affidavit setting out the enquiries made of the whereabouts of the material referred to in paragraph 3 of the plaintiff's notice of motion dated 18 August 2017 so far as that is known and, to the extent that material has been located, whether it contains materials that relate to the charging and prosecution of the plaintiff for the offence of using false instruments laid on 21 February 2000 and perverting the course of justice laid on 29 February 2000. (3) On or before 10 December 2017, the defendant provide discovery in accordance with the Uniform Civil Procedure Rules of the police files and the files of the Office of Director of Public Prosecutions in relation to the charging, prosecution and any appeal from a conviction of the plaintiff on the following charges: (i) seven counts of making and/or using false instruments laid on 21 February 2000; and (ii) one count of pervert the course of justice laid on 29 February 2000. (4) On or before 10 December 2017, the defendant provide discovery in accordance with the Uniform Civil Procedure Rules of any correspondence between the plaintiff and the police officer in charge of the Manning Great Lakes Area Command between 10 June 1997 and 31 December 2000. (5) On or before 10 December 2017, the defendant provide to the plaintiff copies of any previous requests made for further and better particulars of any statement of claim in these proceedings and any response to that request. (6) The notice of motion filed 18 August 2017 is otherwise dismissed. (7) Proceedings adjourned to a directions hearing before the Registrar by telephone at 11am on 21 November 2017. (8) The plaintiff to pay the costs of the notice of motion filed 18 August 2017. Catchwords: PRACTICE AND PROCEDURE – malicious prosecution – old proceedings – application to amend – previous proceedings dismissed for want of prosecution – plaintiff seeks to include causes of action pleaded in previous proceedings – abuse of process – application for pro bono referral – plaintiff convicted of pervert course of justice – inappropriate for pro bono referral – access to documents Legislation Cited: Felons (Civil Proceedings) Act 1981 Civil Procedure Act 2005 Law Enforcement Powers and Responsibilities Act 2002 Limitation Act 1969 Uniform Civil Procedure Rules 2005 Victims Rights and Support Act 2013 Cases Cited: Clark v Robards [2010] NSWSC 522 Clark v Robards [2016] NSWCA 187 Clark v Robards (No 2) [2016] NSWCA 249 Clark v Robards (No 3) [2016] NSWCA 354 Clark v State of New South Wales [2012] NSWCA 139 Clark v State of NSW; Clark v Robards & Ors [2014] NSWSC 742 Clark v State of New South Wales [2016] NSWSC 808 PFC v State of New South Wales & Anor [2016] NSWSC 1507 Re Application of Potier [2012] NSWCA 222 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2007] HCA 27 Category: Procedural and other rulings Parties: Peter Frederick Clark (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: Plaintiff in person Mr A N Williams (Defendant) Solicitors: Plaintiff self-represented Crown Solicitor (Defendant) File Number(s): 2002/269279 EX TEMPORE Judgment 1. These proceedings are now 15 years old, with not a hearing in sight. The plaintiff, Peter Clark, is incarcerated. He is serving sentences for serious offences. Before I can attempt to answer the existential question as to why we are here, I have first to answer the question of how we got here. 2. The long and tortured history of these proceedings, which can be conveniently described as the "2002 proceedings", and another set of proceedings brought by Mr Clark known as the "2005 proceedings", are set out in the judgment of Emmett JA in Clark v Robards [2016] NSWCA 187, which I gratefully adopt. In that judgment the Court of Appeal dismissed an appeal from a judgment of Hidden J given on 17 June 2014 which dismissed the 2005 proceedings for want of prosecution (see Clark v State of New South Wales; Clark v Robards [2014] NSWSC 742). Two attempts to re-open the Court of Appeal's judgment were unsuccessful (see Clark v Robards (No 2) [2016] NSWCA 249; Clark v Robards (No 3) [2016] NSWCA 354). 3. In his 2014 judgment Hidden J declined to dismiss the 2002 proceedings for want of a prosecution. Instead his Honour extended the time up until 30 June 2014 for Mr Clark to comply with the direction made by the Court of Appeal for him to file a further amended statement of claim: (see Clark v State of New South Wales [2012] NSWCA 139). 4. It is necessary to note three further matters about the history of these proceedings. 5. First, by the time these proceedings, that is the 2002 proceedings, reached Hidden J in 2014, they were confined to claims for false arrest, false imprisonment, malicious prosecution and an alleged cause of action for abuse of process in respect of three sets of criminal proceedings brought against Mr Clark, which had apparently terminated in his favour, namely, a charge laid in 1997 of aggravated indecent assault upon a young boy, charges that led to his prosecution in 2000 of using a false instrument (the "2000 false instrument charge") and a charge laid in 2000 for perverting the course of justice (the "2000 pervert the course of justice charge) (see [2014] NSWSC 742 at [2] to [5]). 6. Within the time contemplated by Hidden J's order made on 17 June 2014, Mr Clark then filed a further amended statement of claim in the 2002 proceedings, which maintained those causes of action for the 2000 false instrument charge and the 2000 pervert the course of justice charge but which did not maintain those causes of action for the charge laid in 1997. 7. Second, in 2010 Harrison J struck out the then statement of claim in the 2005 proceedings and granted Mr Clark liberty to re-plead (Clark v Robards [2010] NSWSC 522). The struck-out version of the statement of claim will be referred to as the "2005 statement of claim". At some point Harrison J stayed the 2005 proceedings pending the outcome of an appeal in the 2002 proceeding that was determined by Clark v State of New South Wales [2012] NSWCA 139. In the proceedings before Hidden J, Mr Clark brought in a proposed statement of claim that sought to consolidate all the claims made in the 2002 and 2005 proceedings and attempted to address the various defects that Harrison J had identified with the 2005 statement of claim (the "consolidated statement of claim"). 8. Third, between the time of Hidden J's judgment in [2014] NSWSC 742 and that of the Court of Appeal in [2016] NSWCA 187, Mr Clark sought leave under the Felons (Civil Proceedings) Act 1981 ("FCPA") to file three further statements of claim. This application was refused by Schmidt J in respect of two of the three statements of claim of 20 June 2016: (Clark v State of New South Wales [2016] NSWSC 808). The State contends that one of those statements of claim, described in her Honour's judgment as MFI #4, sought to plead various causes of action that are the subject of the present application to amend. 9. Similarly, on 15 October 2015, Fagan J refused the plaintiff leave to institute another set of proceedings under the FCPA in respect of a cause of action that the State contends is at least related to a cause of action that he now wishes to add to these proceedings (see PFC v State of New South Wales & Anor [2016] NSWSC 1507; "PFC"). Application to amend 1. The present application is made by Mr Clark in an amended notice of motion filed 18 August 2017. The notice of motion seeks five sets of orders. The first set of orders is a referral for pro bono assistance and the last three concern access to materials and documents. I deferred argument and giving judgment on those matters pending determination of the second order by which Mr Clark seeks leave under the FCPA to add certain new causes of action to the 2002 proceedings and otherwise seeks leave to file a third further amended statement of claim, the current draft of which is dated 18 August 2017 ("3FASOC"). I did so because a consideration of the balance of the claims in the notice of motion can only truly be undertaken when the scope of these proceedings is ascertained. 2. The premise of Mr Clark's motion, which I accept, is that to the extent that he seeks to add a new cause of action in these proceedings then he is in effect "institut[ing]" a proceeding for the purposes of s 5 of the FCPA. In that regard, ss 4, 5 and 7 of the FCPA provide: "4 Leave to sue required for persons convicted of serious indictable offences A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application. 5 Grant of leave A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings. 7 Right of appearance At the hearing or determination of an application or appeal under this Act, except by the leave of the court to which the application or appeal is made: (a) the applicant or appellant, as the case may be, is not entitled to appear in person, and (b) the person who would, if the proceedings to the institution of which the application or appeal relates were instituted, be the defendant in those proceedings, is not entitled to appear or be represented." 1. Mr Clark clearly falls within s 4 of the FCPA (see PFC at [9]). Further, given the complexity of the proceedings, I determined that leave should be granted under s 7 to the State to be heard on the application. 2. For present purposes, two matters should be noted about s 5. First, there is an onus of persuasion upon Mr Clark to satisfy the Court that the proceedings are not an abuse of process. Second, if that is determined, he also must establish that there is a "prima facie ground" for the proceedings. 3. In relation to this latter requirement, in Re Application of Potier [2012] NSWCA 222 at [17], Allsop P and Basten JA stated that at this point the Court is not "required to embark upon a detailed analysis of the claims or the evidence which might support them but rather is to form a broad impression of whether a claim enjoys a realistic prospect of success and is thus not quite hopeless" or "unarguable". Otherwise in determining whether Mr Clark can amend both to add new causes of action and expand upon other ones, he must generally satisfy the various provisions of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005, governing whether an amendment will be allowed. 4. The proposed 3FASOC can only be addressed by dividing it into portions that relate to the bringing of particular charges against Mr Clark. 5. Paragraphs 1 to 3 are introductory. I will pass over paragraph 2 because it names various persons who were either police officers or who were a Crown Prosecutor, who were said to have one way or another committed the various torts and then, says that the State is vicariously liable for them. It is likely that, given the fate of some of the amendments, that part of that paragraph will not be allowed because it refers to persons whose only involvement is with charges, in respect of which leave to plead will not be granted. 6. Paragraphs 4 to 6 concern the 2000 false instrument charge. Leave is not required under the FCPA as they are already in the existing statement of claim. Those paragraphs can proceed. 7. Paragraphs 7 and 8 now seek to introduce an allegation that, following Mr Clark's acquittal on the charges referred to in paragraphs 4 to 6, back-up charges were presented against him, in respect of which he was initially convicted but then was partially successful on appeal. The proceedings seek to make out a claim for malicious prosecution in relation to those charges. 8. It is an interesting question as to whether leave is in fact required under the FCPA to brings in these matters. However, in the end result it is not necessary to resolve that. The State raised an issue as to whether this cause of action was statute barred. It raised that contention in relation to a number of amendments in the proposed third further amended statement of claim. Mr Clark's response to all of those matters was to contend that, by reason of the various terms of imprisonment he has served, he was under a relevant "disability" for the purposes of s 52 of the Limitation Act 1969 such that time did not run. In the end result, the determination of that contention appears to involve a factual issue, which it is not appropriate to determine on this application. Otherwise Mr Clark submitted that, even if time did run, these amendments could be supported under subsection 65(2)(c) of the Civil Procedure Act as they, so he contends, arise out of the facts that gave rise to the already pleaded causes of action concerning the 2000 false instrument charge. 9. There is much to be said for that but even if that is right Mr Clark still needs to demonstrate that, as a matter of discretion, leave should be allowed to raise these matters. The factors governing the exercise of that discretion are articulated in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2007] HCA 27 and find statutory expression in ss 56 and following of the Civil Procedure Act. 10. In circumstances where the history as I have described is such that Mr Clark has, despite his imprisonment, been litigating for a long period of time over a vast number of charges, the Court is entitled to expect some particularly persuasive explanation to be put forward at this point as to why these matters are now being raised for the first time. 11. From the Bar table Mr Clark referred to some injuries he had suffered in custody and the difficulties he has had with access to documents. The detailed "submissions/affidavits" he filed in support of his application also make reference to these matters. Nevertheless I do not accept that explains the long delay before the bringing in of these matters. There was a period in 2004 when Mr Clark was represented and his solicitors filed pleadings on his behalf. Access to documents is not really required to plead these matters as there is no suggestion that he was not at least aware of his conviction and partial success on appeal in relation to these convictions. Mr Clark is in no different position from any other litigant, albeit that he suffers from the undoubted impediment that he is incarcerated. The bringing of a totally fresh matter some 15 years later needs extremely cogent explanation and it has not been given. Leave to plead these matters is refused. 12. Paragraphs 9 to 12 of the proposed 3FASOC allege the particular matters said to warrant a conclusion that he was maliciously prosecuted for the offences referred to in paragraphs 4 to 6. They are already in the existing statement of claim. They can go forward. 13. Paragraphs 13 to 21 plead the events surrounding his arrest and prosecution and ultimate success in relation to the 2000 pervert the course of justice charge. Given that they are in the existing statement of claim they can proceed. 14. Proposed paragraphs 22 to 33 plead a cause of action in malicious prosecution in respect of his arrest and charging on 27 January 2005 on the charge of committing an act of indecency towards a person under the age of 16, assaulting a police officer and goods in custody. They also plead that on a subsequent date he was charged with having child pornography in his possession that was seized on 22 January 2015. 15. The 2005 statement of claim pleaded, at paragraphs 33 to 38, the facts surrounding the search of Mr Clark's premises on 27 January 2005 and the laying of four charges against him, although the charge of indecent assault is instead referred to as having procured a child for pornographic purposes. That section of the pleading was headed "Trespass 27 January 2005". 16. Paragraph 52 of the 2005 statement of claim alleges that the various police officers referred to in the pleading embarked on the "above prosecutions in a vicious and vexatious campaign of intimidation and conspiracy against the plaintiff". Those "prosecutions" included the prosecution of the four charges that I have just referred to. 17. Paragraph 62 of the 2005 statement of claim alleges that the search warrant used at his home on 27 January 2005 was "bogus". 18. Paragraphs 74 and 75 of the 2005 statement of claim purported to provide particulars of the "collateral and/or improper purposes" of the various police officers who took action against him, including alleging that the officers misconducted themselves in relation to the prosecutions and that the prosecutions were "instituted, maintained and continued to justify the unlawful and improper conduct of the said police officers". 19. Although the 2005 statement of claim was held to be bad in form, there was in my view no doubt that it involved an attempt to bring an action in respect of what was alleged to be a vexation prosecution of him arising from the search on 27 January 2015. Thus, in substance, paragraphs 27 to 33 of the proposed 3FASOC are a reformulation of those allegations. 20. When he was asked to address why this did not amount to an abuse of process, Mr Clark pointed to s 91 of the Civil Procedure Act, which provides that a dismissal does not of its own force operate as a bar to further proceedings. He also submitted that, in considering whether it was an abuse of process, the Court could have regard to the various restrictions he was labouring under when he was attempting to plead the 2005 proceedings, including his being assaulted in prison and his not having access to various documents. 21. The State submitted, inter alia, that any attempt to re-agitate this matter constitutes an abuse of process in that the further pursuit of the matter was fully considered and rejected by Hidden J and it is truly an abuse of process to attempt to resurrect something that had already been dealt with over many years. The State also referred to the fact that Mr Clark sought the leave of Schmidt J to bring these allegations in the version of the statement of claim known as MFI #4 but her Honour refused leave under the FCPA (see [2016] NSWSC 808 at [115] to [131]). 22. In that judgment her Honour referred to the attempt by Mr Clark to plead causes of action which were the subject of the 2005 proceedings and found that they "involved obvious abuse" (at [128] and [129]). Mr Clark contends that that conclusion was only reached because, at the time that her Honour made that judgment, the 2005 proceedings still had some life in that he was pursuing his appeal of Hidden J's judgment in the Court of Appeal, and that, in effect, her Honour was commenting on the legitimacy of him pursuing the same matter in two proceedings simultaneously. 23. I do not accept that. There was no reason for Schmidt J to take any view other than the fact that Hidden J's order dismissing the 2005 proceedings was final unless and until it was set aside by the Court of Appeal (which it was not). In any event, it is hard to see how Mr Clark's position is in any way strengthened by his defeat in the Court of Appeal in attempting to appeal Hidden J's judgment. At most it means that the abuse of process has a different character, namely, instead of pursuing the same cause of action in two proceedings, he is attempting to re-agitate a cause of action which was dismissed because he could not properly pursue it previously. 24. However, even leaving aside the effect of Schmidt J's judgment, I am satisfied that leave under s 5 of the FCPA to raise this matter must be refused because I am certainly not satisfied that the proceedings are not an abuse of process. Whatever be the limitations that Mr Clark experienced from time to time, the fact is that over a number of years he had ample opportunity to bring forward and pursue proceedings in respect of this matter but has simply proved unable to do so. The proposition that now, 12 years after the various events the subject of his pleadings and three years after Hidden J brought them to an end, he can now seek to re-agitate them, in my view must be rejected. 25. Accordingly, leave to raise paragraphs 22 to 33 of the proposed 3FASOC is refused. 26. Paragraphs 34 and 35 of the proposed 3FASOC seek to plead a cause of action in civil conspiracy against the various officers who took part in the events of 27 January 2005. It appears to be the case that Mr Clark has not previously attempted to plead a civil conspiracy in relation to those events but otherwise these matters arise out of precisely the same facts, matters and circumstances as were pleaded in the 2005 statement of claim. 27. Mr Clark submits that, even if I was to conclude that he should not be allowed to pursue paragraphs 22 to 33 of the proposed 3FASOC, he should nevertheless be able to continue with his conspiracy action given it has not previously been pleaded. I do not accept that. The considerations that prevent the re-agitation of such matters from a litigant who has previously had ample opportunity to do so but failed and had their proceedings dismissed apply equally to an attempt to put a different legal label on the same facts, matters and circumstances. Leave under s 5 of the FCPA in respect of proposed paragraphs 34 to 35 is refused. 28. Paragraphs 36 to 39 of the proposed 3FASOC are prefaced by the heading "27 January 2005 Trespass to Goods". The paragraphs then refer to the events surrounding the execution of the search warrant on 27 January 2005. Paragraph 36 repeats the precise allegation made in the 2005 statement of claim that the search warrant was bogus. This is all put forward in support of an allegation that the removal of the various items was unlawful. It follows from my earlier analysis that, in substance, this does not raise anything that was not previously raised in the 2005 statement of claim. Leave under s 5 of the FCPA to raise these matters is refused. 29. Paragraphs 40 to 47 of the proposed 3FASOC seek to bring actions for an alleged tort called "false arrest", as well as for false imprisonment and malicious prosecution arising from Mr Clark's arrest in November 2006 for various sexual offences involving a child said to be under the age of 18 years as well as an offence of making a false statement with intent to pervert the course of justice. 30. Paragraphs 39 to 41 of the 2005 statement of claim referred to his arrest and prosecution for at least some of those offences. The only difference in substance between that allegation and the proposed 3FASOC is that Mr Clark has now added some further particulars of the charges that he was ultimately acquitted on. 31. In its written submissions the State contended that that matter was addressed by Fagan J in PFC where his Honour refused Mr Clark leave under s 5 of the FCPA. However, Mr Clark pointed out that Fagan J refused leave because the form of pleading presented to his Honour included a charge in respect of which he had ultimately been convicted and unsuccessfully appealed but those charges were deleted from the paragraphs 39 to 41 of the proposed 3FASOC. That appears to be correct. Nevertheless, I am not satisfied that these parts of the pleadings are not an abuse of process, given that in substance they are simply re-agitating parts of the 2005 proceedings which have already been dismissed. For the reasons that I have already stated, leave to raise these matters under s 5 of the FCPA is refused. 32. Paragraphs 48 to 53 of the proposed 3FASOC seek to plead causes of action for malicious prosecution in respect of various charges that were said to have been laid on "3 July 2007 and/or 28 August 2007 and/or 4 March 2008". They are all of a sexual nature involving young persons. 33. Paragraphs 42 to 44 of the 2005 statement of claim pleaded that on 28 August 2007 Mr Clark was arrested and charged by certain police officers with sexual assault upon the same two alleged victims. Paragraph 43 of the 2005 statement of claim lists a significant number of charges laid in respect of them, which generally appear to correspond with paragraph 48 of the proposed 3FASOC. 34. The only apparent difference in substance between the two pleadings is that paragraph 48 of the proposed 3FASOC identifies two extra possible dates when the charges were laid, namely 3 July 2007 and 4 March 2008. Mr Clark submitted that this was significant because charges were laid and then withdrawn and re-laid again and for the purposes of the tort of malicious prosecution this means different prosecutions were undertaken from time to time. 35. It must be remembered that the distinctive feature of this type of application is that the onus is upon Mr Clark to persuade the Court that the proceedings are not an abuse of process. To the extent that it might be said that there is some basis for distinguishing the two pleadings because the prosecution took the course that Mr Clark contends, then that is a matter that he must demonstrate and not a matter for anyone else to speculate upon, much less prove. 36. On their face the two pleadings appear to be raising in substance the very same matters. There does not seem to be anything that would truly suggest that what the Court is being given in the proposed 3FASOC is in reality any different from that which was sought to be agitated by the 2005 statement of claim. 37. The end result is that for the purposes of s 5 of the FCPA I am not satisfied that this part of the proposed 3FASOC is not an abuse of process. I am not satisfied that they are not an attempt to re-agitate that which was previously dismissed in the 2005 proceedings. 38. Accordingly, leave under s 4 of the FCPA to raise paragraphs 48 to 53 of the proposed 3FASOC is refused. 39. Paragraphs 54 to 60 of the proposed 3FASOC plead causes of action for an alleged tort of "false arrest" and also for false imprisonment and malicious prosecution in respect of charges that were laid against Mr Clark following his arrest on 5 August 2008. The charges are said to involve an indecent assault of a young girl and the procuring of her for "pornographic purposes". 40. Paragraph 45 of the 2005 statement of claim pleaded that Mr Clark had been charged with those offences on 5 August 2008. They did not plead the outcome of those prosecutions, which was that on 16 March 2012 the charges were withdrawn. This would appear to be so because at the time the 2005 statement of claim was drafted, that fact may not have been known. As I said, after Harrison J's judgment in 2010, the proceedings were stayed for a period. However, by the time the proposed consolidated statement of claim was brought before Hidden J, it was known what the outcome of those charges were and that document pleaded that outcome. Nevertheless, despite that, Hidden J determined that the 2005 proceedings were to be dismissed for a want of prosecution. 41. There is nothing in his Honour's judgment to indicate that in so concluding his Honour was drawing a distinction between prosecutions that had been pleaded in the 2005 statement of claim that had been terminated in Mr Clark's favour and those which were not. 42. Mr Clark has pointed to an exchange in oral submissions before Hidden J in which his Honour made reference to the possibility that Mr Clarke may be able to bring "new claims" in the 2002 proceedings. This has two problems. First, an exchange between a judicial officer and a litigant is not in the ordinary course a matter that can qualify their judgment. Second, these matters were not in any event "new claims". They were simply claims made in the 2005 proceedings that were not properly pleaded. 43. In his judgment, Hidden J noted that there were some matters raised in the consolidated pleadings which were "new claims not previously pleaded" which were not authorised by Harrison J's grant of leave (at [95]). These claims do not answer that description. The end result is that Mr Clark raised this matter in his 2005 statement of claim, sought to clarify a defect in that pleading in the consolidated statement of claim but nevertheless had the 2005 proceedings dismissed for want of a prosecution, an order that was not disturbed on appeal. In those circumstances I am not satisfied that the further attempt to re-agitate this matter in these proceedings is not an abuse of process. 44. Accordingly, leave under s 4 of the FCPA to plead the matters in paragraphs 54 to 60 of the proposed 3FASOC is refused. 45. Paragraphs 61 to 66 of the proposed 3FASOC are prefaced by the heading "26 March 2009 Malicious Prosecutions". Paragraph 61 recites that on 26 March 2009 an indictment was filed on behalf of the Director of Public Prosecutions, which bore the signature of a Crown Prosecutor who is now a judge of this Court, which alleged the commission of various offences by Mr Clark, all of which he contends he was later acquitted of. These are the subject matter of the claim of malicious prosecution. 46. Paragraph 67 of the proposed 3FASOC pleads that on 18 May 2009 during his trial when the charges referred to in paragraph 61 had been withdrawn, a further set of charges were laid against him, presumably by indictment, and he achieved a successful outcome on those charges and pleads a malicious prosecution in respect of those matters. 47. Paragraph 75 of the proposed 3FASOC also pleads that another charge was laid by way of indictment against him on 18 May 2009, which was also resolved in his favour, and pleads an action in malicious prosecution based on that. 48. By way of explanation from the Bar table, Mr Clark explained that what had occurred was that a trial took place in the District Court involving a substantial number of charges against him. It seems that on the first day of the trial, which appears to have been 26 March 2009, an indictment was laid against him, that during the course of the trial some charges were withdrawn and a further indictment was presented. It seems the end result of that trial was that Mr Clark was convicted on other charges, which were not disturbed on appeal and which he accepts that he cannot make the subject of this action. 49. In the 2005 statement of claim it was pleaded at paragraph 48 that Mr Clark was arraigned in the District Court on 18 May 2009 and a number of charges were listed. This is of course a reference to what appears to have been the amended indictment that was filed during the course of his trial. 50. In the proposed consolidated statement of claim at paragraph 117, Mr Clark again referred to his arraignment on 18 May 2009 and sets out what appears to have been all the charges included in the indictment at that point in time, his plea and the ultimate result. 51. The only real difference between the entirety of paragraphs 61 to 80 of the proposed 3FASOC on the one hand and the 2005 statement of claim and the proposed consolidated statement of claim on the other, is the inclusion of some of the charges included in the initial indictment when he was arraigned on 26 March 2009. In the scheme of things, I am not persuaded that there is in substance any real difference between them. It appears that Mr Clark is just seeking to re-agitate the various causes of action that he was ultimately shut out from pursuing by Hidden J in 2014. The judgment was not disturbed on appeal. It follows that I am not satisfied that these parts of the pleadings are not an abuse of process. Accordingly, leave under s 4 of the FCPA to raise them is refused. 52. 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. 53. Accordingly, I order: 1. 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. [Further submissions on the prayers of relief] 1. I have just heard argument on the balance of the orders sought in Mr Clark's notice of motion. They can be dealt with in order. Pro Bono Referral 1. The first prayer for relief seeks an order for referral to the Bar Association's Pro Bono Assistance Scheme or, in the alternative, an order that the Court appoint a particular counsel or solicitor to represent Mr Clark. The alternative can be put aside. In relation to the former, Uniform Civil Procedure Rule 7.36(1) enables the Court, if it considers it is in the administration of justice to do so, to refer a litigant to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. Subrule 7.362(a) provides that the Court may not make a referral if at any time during the immediately preceding period of three years the litigant had such a referral "unless the Court is satisfied that there are special reasons that justify the further referral". Mr Clark submitted that there were such reasons, specifically the difficulties that he has from his incarceration in pursuing his litigation which is likely to be document intensive. 2. One matter I raised with Mr Clark was the fact that he remains convicted of an offence of pervert the course of justice which relates to the circumstance that he was found to have destroyed an exhibit prior to a hearing date of these proceedings over a decade ago. This circumstance led his then counsel to withdraw. Mr Clark submitted that this is not a basis to decline a referral because since then other judges have considered that a referral was appropriate. 3. Nevertheless, I am not satisfied that there are special reasons that justify a further referral, by reason of three matters. The first is that notwithstanding his limitations, Mr Clark presents as both intelligent and reasonably familiar with court procedures. Even though he is in custody, he is able to generate a significant amount of written material. The second is the matter I just noted, namely his conviction for perverting the course of justice, specifically destroying an exhibit. The third is what emerges from the long procedural history of these proceedings is Mr Clark's determination not only to make serious allegations, but to repeat and replead causes of action that have at earlier times been dismissed. The second and third matters raise acute problems for any legal practitioner who acts on his behalf. Members of the pro bono panel should not be vexed with even the possibility of being placed in similar situations, especially where they act for no fee. Accordingly, prayer 1 of the notice of motion will be dismissed. Search Warrant material 1. Prayer 3 of the notice of motion seeks the return of materials that were seized pursuant to the search warrant executed at Mr Clark's home on 27 January 2005, including such items as a desktop computer, a monitor, computer disks, floppy disks, business diaries, notebooks, videotapes and other documents and things. Prayer 4 seeks an order that there be returned to Mr Clark all copies made of anything that was seized. On its face, the terms of these orders appear to travel well beyond anything that would ordinarily be obtained by way of discovery or a notice to produce. Instead they appear to be directed to remedying a complaint about the validity of a search warrant. Not surprisingly, the State submitted that it was inappropriate to even contemplate such orders, especially as there are mechanisms available under the Law Enforcement Powers and Responsibilities Act 2002 for the return of such material. 2. That submission is clearly correct. However, that does not mean that if this material was of some particular relevance to the remaining claims in these proceedings, that Mr Clark could not at least obtain access to them to assist in their conduct. 3. Mr Clark submitted that much of this material was relevant to the claims made in these proceedings. He pointed to a photograph of two folders that he says were seized in January 2005 which he contended contained material relating to the prosecution of the 2000 false instrument charge and the 2000 pervert the course of justice charge. He also said that material relevant to those claims was also to be found on the desktop computer, the floppy discs, the business diaries and even the videotapes which were said to contain depositions of relevant witnesses. 4. I am in no real position to make any assessment of this. Instead of granting any of those forms of relief, what I will do is make a direction that the State file an affidavit addressing the known whereabouts of this material and what, on a reasonable search of such material as is obtained, appears to be its connection with these proceedings. Access to other Court Files 1. Prayer 5 of the notice of motion seeks an order that the Registrar provide Mr Clark with copies of both the statement of claim and evidentiary statements that were "relied on" in two other malicious prosecutions that have been considered by this Court, one which relates to a judgment in a matter that was delivered some years ago and one in which I understand the judgment is reserved. When he was asked to identify why he needed access to this material, Mr Clark indicated that it would assist him in preparing his case and, in particular, drafting his pleadings. He also submitted that one of the matters appeared to relate to the same area of police command as is the subject of his proceedings, although counsel for the State indicated that it related to events ten years previous. In any event, it is not a proper basis to allow a third party access to especially the evidentiary statements contained in a Court file in that it might somehow help them prepare a different case. I decline to make the order in prayer 5. Discovery 1. A claim made by Mr Clark that is not specifically raised in the notice of motion is for the production of documents from the State by way of a notice to produce. The State submitted that these being personal injury proceedings, some special reason for, in effect, a form of discovery needed to be established by Mr Clark and that has not been done. However, at least in a malicious prosecution case, it can be expected that a great deal of material relevant to the plaintiff's case is exclusively within the possession of the State. In those circumstances, I can at least see a basis for allowing Mr Clark access to the files that specifically concern the charges that are the subject of his pleading. I will come to that shortly. 2. In making an order to give effect to that assessment, I do not mean to foreclose the possibility that Mr Clark would never be able to seek an order for production of further materials. As I explained to him, it is to be ordinarily expected that any such application would be very narrowly focussed and the basis on which the material was sought would be clearly identified. In that regard, I will indicate some initial views about the paragraphs of his notice to produce. 3. Paragraph 1 sought the production of a number of statements provided by various persons said to be the victims of his sexual offences over a number of years. With the exception of the first known person who is said to be the victim of a 1997 offence that I referred to earlier and which Mr Clark says is the genesis of all his misfortune, the balances of the statements do not appear to have any obvious relevance to these proceedings. The State submitted that the production of the material is prevented by section 113 of the Victims Rights and Support Act 2013. It is not necessary to determine that submission. 4. Paragraph 2 seeks police files relating to those victims. The observations I have just made apply with equal force to this paragraph. 5. Paragraphs 3 and 4 relate to the police and prosecution files concerning the 1997 offence that I referred to earlier. In light of what I have stated, I am not in a position to assess the relevance of this material. Mr Clark will need to demonstrate the precise reason why he should be given access. 6. The same observations relate to paragraphs 5 and 6, which concern some charges of goods in custody that were laid against Mr Clark in 1999. Mr Clark stated that they do have relevance to his pleaded cause of action because it was in the course of defending himself on those charges that he had cause to issue the subpoenas, which the police allege to be bogus and which founds the 2000 false instruments charge. 7. Paragraphs 7 and 10 relate to charges laid against his son. Mr Clark says that they may reveal material indicating that the vendetta against him extended to his son. Again, the observations I have made about him needing to demonstrate something more specific about that assertion apply. 8. Paragraphs 8 and 9 specifically concern the files in relation to the pleaded counts of the malicious prosecution. I shall shortly make orders in respect of them. 9. Paragraph 11 relates to the back-up charges of creating unauthorised documents. I did not give Mr Clark permission to plead a case of malicious prosecution in respect of them. The observations I made about him having to demonstrate something specific to obtain access apply in relation to those documents. 10. Paragraph 12 concerns the Office of the Director of Public Prosecutions' file concerning the appeal against his conviction on the 2000 pervert the course of justice charge. I shall shortly make orders in respect of that. 11. Paragraphs 13 and 14 seek documents about events that well and truly post-date the pleaded causes of action, as do paragraphs 19, 20 and 23. 12. Paragraph 15 simply seeks copies of his own answers to requests for further particulars. I will address that. 13. Paragraph 16 seeks an order for production of copies of everything previously produced by Mr Clark or his former solicitors in the proceedings. The only sensible way to deal with that is to note that Mr Clark can access the Court file. 14. Paragraph 17 seeks every document in the possession of the police, the Director of Public Prosecutions and the Crown Solicitor in relation to the victims named in prayer 1. On its face that is far too wide. The Court would never grant an order for production of material of that kind. 15. Paragraph 18 seeks a copy of any and all correspondence between the plaintiff and the Commander of the Manning Great Lakes Area concerning the events that gave rise to the 2000 use false instrument charges and the 2000 pervert the course of justice charges. I will shortly make an order about this request. 16. Paragraph 21 seeks more material in relation to the victims referred to in paragraph 1. That is covered by what I have just stated. Paragraph 22 seeks access to material seized in a search of his premises on 4 April 1999. The comments I have made about the necessity to bring a focussed application seeking specific material applies in respect of that. 17. I make the following orders: (2) On or before 10 December 2017, the defendant is to file and serve an affidavit setting out the enquiries made of the whereabouts of the material referred to in paragraph 3 of the plaintiff's notice of motion dated 18 August 2017 so far as that is known and, to the extent that material has been located, whether it contains materials that relate to the charging and prosecution of the plaintiff for the offence of using false instruments laid on 21 February 2000 and perverting the course of justice laid on 29 February 2000. (3) On or before 10 December 2017, the defendant provide discovery in accordance with the Uniform Civil Procedure Rules of the police files and the files of the Office of Director of Public Prosecutions in relation to the charging, prosecution and any appeal from a conviction of the plaintiff on the following charges: 1. seven counts of making and/or using false instruments laid on 21 February 2000; and 2. one count of pervert the course of justice laid on 29 February 2000. (4) On or before 10 December 2017, the defendant provide discovery in accordance with the Uniform Civil Procedure Rules of any correspondence between the plaintiff and the police officer in charge of the Manning Great Lakes Area Command between 10 June 1997 and 31 December 2000. (5) On or before 10 December 2017, the defendant provide to the plaintiff copies of any previous requests made for further and better particulars of any statement of claim in these proceedings and any response to that request. (6) The notice of motion filed 18 August 2017 is otherwise dismissed. (7) Proceedings adjourned to a directions hearing before the Registrar by telephone at 11am on 21 November 2017. Parties addressed on Costs 1. The defendant seeks its costs of the motion on the basis that it succeeded in the principal issue concerning the amendment of the pleadings, which, if successful, would have expanded the scope of these proceedings dramatically. Mr Clark submits that in effect his application was brought in good faith based on an understanding that Hidden J allowed him to expand the scope of his case and it is otherwise complex litigation for him to handle while in custody. 2. While Mr Clark has achieved something in relation to at least access to documents, nevertheless, this litigation has been on course for 15 years. Even allowing for Mr Clark's difficulties, the rule that costs follow the event must be applied. Notwithstanding the difficulties he faces, in the end the State was put to considerable expense in respect of an application to bring in claims that had previously been shut out. 3. Accordingly, I make the following order: (8) The plaintiff to pay the costs of the notice of motion filed 18 August 2017. 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: 17 October 2017