Clark v Robards [2010] NSWSC 522

Clark v Robards [2010] NSWSC 522

The plaintiff had not failed to prosecute the proceedings with due despatch, given his imprisonment, criminal proceedings and limited resources. Except for the defamation claim, the third defendant had not established at this stage that the claims were so hopeless that they should be dismissed under UCPR 13.4. The defamation paragraphs were absolutely hopeless because they did not allege publication by the third defendant or any connection between the third defendant and the alleged publications. The second further amended statement of claim was nevertheless embarrassing and had the potential to cause prejudice and delay, so it could not withstand a strike out application under UCPR...

Jurisdiction
Australia
Judgment Date
04 June 2010
Procedural Posture
Civil Proceedings; Procedural Ruling on Strike Out and Dismissal Application / Interlocutory Notice of Motion by the Third Defendant to Dismiss or Strike Out the Second Further Amended Statement of Claim
Outcome
Statement of claim struck out with leave to replead; the defamation claim was treated as hopeless, and final orders were postponed pending further argument on overlap with earlier proceedings and costs.
Legal Topics
['summary Dismissal' 'strike Out of Pleadings' 'ucpr 12.7' 'ucpr 13.4' 'ucpr 14.28' 'reasonable Cause of Action' 'prejudice, Embarrassment or Delay' 'defamation Pleading' 'self Represented Prisoner Litigant']
['practice and Procedure' 'civil Procedure' 'torts'] ['summary Dismissal' 'strike Out of Pleadings' 'ucpr 12.7' 'ucpr 13.4' 'ucpr 14.28' 'reasonable Cause of Action' 'prejudice, Embarrassment or Delay' 'defamation Pleading' 'self Represented Prisoner Litigant']

Case Brief

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Procedural Posture

Civil Proceedings; Procedural Ruling on Strike Out and Dismissal Application / Interlocutory Notice of Motion by the Third Defendant to Dismiss or Strike Out the Second Further Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the plaintiff had failed to prosecute the proceedings with due despatch under UCPR 12.7.' 'Whether the proceedings or claims should be dismissed under UCPR 13.4 as frivolous or vexatious, disclosing no reasonable cause of action, or an abuse of process.' 'Whether the second further amended statement of claim should be struck out under UCPR 14.28 because it disclosed no reasonable cause of action, tended to cause prejudice, embarrassment or delay, or was otherwise an abuse of process.' 'Whether the defamation allegations disclosed any viable cause of action against the third defendant.' 'Whether the present claims overlapped with issues considered in Clark v State of New South Wales [2006] NSWSC 673; (2006) 66 NSWLR 640.']

Ratio Decidendi

The plaintiff had not failed to prosecute the proceedings with due despatch, given his imprisonment, criminal proceedings and limited resources. Except for the defamation claim, the third defendant had not established at this stage that the claims were so hopeless that they should be dismissed under UCPR 13.4. The defamation paragraphs were absolutely hopeless because they did not allege publication by the third defendant or any connection between the third defendant and the alleged publications. The second further amended statement of claim was nevertheless embarrassing and had the potential to cause prejudice and delay, so it could not withstand a strike out application under UCPR...

Court Disposition

Statement of claim struck out with leave to replead; the defamation claim was treated as hopeless, and final orders were postponed pending further argument on overlap with earlier proceedings and costs.

Orders

  • ['The proceedings were directed to be listed before Harrison J at 9.30am on Friday 2 July 2010 for mention for the purpose of hearing the parties on the matters discussed at [33]-[36], on a reasonable time for the plaintiff to replead his case if applicable, and on the costs of the motion.']