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

Judgment

1 MACFARLAN JA: I agree with Hoeben JA.

2 HOEBEN JA:

Nature of appeal

The claimant, who represented himself in both matters, seeks leave to appeal from the judgment of Wood CJ at CL of 19 November 2004 in which he was ordered to pay certain costs to the opponent.

3 The claimant also seeks leave to appeal from the judgment of Johnson J of 30 June 2006 (Clark v State of NSW [2006] NSWSC 673, 66 NSWLR 640). In that judgment Johnson J dismissed the proceedings which the claimant had brought against the opponent for malicious prosecution, false arrest, false imprisonment and abuse of process (Supreme Court matter 20233/2002).

4 The court ordered that the applications for leave to appeal and the appeals should be heard together. The court also allowed the appearance of an amicus curiae. The amicus provided written and oral submissions in respect of the judgment of Johnson J but not otherwise.

5 The proceedings brought by the claimant for false imprisonment, false arrest, malicious prosecution and abuse of process related to alleged acts or omissions of members of the NSW Police. Accordingly, the opponent became the defendant pursuant to the Crown Proceedings Act 1998 and the Law Reform (Vicarious Liability) Act 1983.

Judgment of Wood CJ at CL of 19 November 2004

Factual background

6 The proceedings brought by the claimant relied upon three separate sets of claims. The first set arose from charges brought by Senior Constable Cusack and Detective Senior Constable Birch of the Burwood Police Station in June 1997. The charges alleged aggravated indecent assault on a young male, "TR". The other two sets of claims related to different charges brought by police officers from the Taree Police Station on 21 February 2000 and 29 February 2000.

7 The claimant's particulars of the charges brought at the Burwood Police Station in June 1997 included an allegation of collateral and/or improper purpose being to conceal evidence of a corrupt demand allegedly made by Senior Constable Cusack to the claimant that the claimant pay to him an amount of $50,000 to prevent the claimant being charged.

8 The proceedings were called on for hearing before Wood CJ at CL on 11 October 2004 but did not start on that date. On 12 October 2004 Mr Steirn SC, counsel for the claimant, informed his Honour that the claimant possessed an audio-cassette tape recording (the tape) said to contain a record of the conversation between him and Senior Constable Cusack in which the police officer solicited the bribe. The tape was said to be of great significance to the proceedings. In effect, Mr Steirn SC submitted that the tape was a critical part of the evidence which would either corroborate or give the lie to the allegations which were made in respect of that set of claims in the proceedings.

9 Wood CJ at CL vacated the hearing date and gave directions concerning the establishment of a regime for the possible testing and enhancement of the tape. He stood the matter over for further directions before himself on 25 October 2004.

10 On the afternoon of 12 October 2004 Mr Steirn SC received a fax from the claimant to the effect that he had destroyed the tape and a CD copy of the tape. Upon receipt of that information Mr Walsh, the solicitor for the claimant, telephoned the claimant who confirmed that he had destroyed the tape.

11 When the matter came before Wood CJ at CL on 25 October 2004 this information was communicated to his Honour by Mr Steirn SC who then withdrew. The claimant thereafter represented himself. There was a mention before another Judge of the court on 12 November 2004. The matter came back before Wood CJ at CL on 19 November 2004, at which time the opponent sought an order for the costs thrown away by the claimant's conduct in destroying the tape. The claimant opposed such an order on the basis that Mr Steirn SC had disobeyed his instructions on 12 October in seeking an adjournment and that he had destroyed the tape because of fear of the police.

12 In his judgment, Wood CJ at CL said:

"8 The State now seeks the costs which have been thrown away on these various occasions. That application is opposed by Mr Clark who says, amongst other things, that he has been threatened by police, pursued by police and otherwise harassed and that in due course he will make his claim for damages good by reference to his own evidence in the proceedings.

9 I am not concerned obviously with the outcome of the case. I have no idea whether or not the plaintiff will make good his claim. However, what is clear at this stage is that, although the matter was fixed to be heard commencing 11 October, the hearing has been frustrated and the further progress of the matter obstructed by the fact of the destruction of the tape.

10 I am satisfied, in these circumstances, that each of the appearances which I have mentioned have involved the defence in costs which have been thrown away and that it is proper, in all the circumstances - there being no good reason offered by the plaintiff to the contrary - that the plaintiff should pay the defendant's costs of each of those mentions or listings. ..."

It is clear from the transcript that the costs order related to the appearances on 11, 12 and 25 October, 12 and 19 November 2004 only. His Honour ordered that the costs were to be assessed and payable forthwith.

Submissions and consideration

13 In oral submissions, the claimant did not come to grips with the fact that this was a discretionary decision of Wood CJ at CL and that error of the kind identified in House v The King ((1936) CLR 499 at 505) would need to be identified. His submissions were directed primarily at the failure of his legal advisers at the time to comply with his instructions and to fully prepare themselves to run the case. Those considerations are irrelevant to this application for leave to appeal.

14 In addition to his oral submissions, the claimant relied upon written submissions. These raised the following issues:

(a) There was no evidence as to the existence of a tape, nor was there evidence that he had destroyed it.

There was ample evidence in the affidavits of Mr Walsh and of Ms Mileski, a solicitor employed by Mr Walsh, as to the existence of a tape. Moreover, the existence of a tape and its destruction by the claimant was accepted by him in submissions before this Court. There were also the telephone admission to Mr Walsh and the admission in his letter/fax of 12 October 2004. There is no substance to this submission.

15 (b) He destroyed the tape because he believed his life was under

threat from the police.

Submissions to this effect were made by the claimant to his Honour. They seem to have been based on the presence in the public gallery of some police officers who were involved in the proceedings. As his Honour pointed out in the course of those submissions, there was nothing sinister in those officers being present in court since their position was analogous to that of a party to the proceedings and until the adjournment application, it was anticipated that the matter would proceed.

16 There was also a certain incongruity in the explanation. It was at all times known by the claimant that if he continued with the proceedings he would be relying upon the tape and that its content would be made known in open court. In the specific circumstances of this case, one would have thought that the production of the tape and its joint testing pursuant to an order of the court, would allay any fears of police interference with it.

17 In the circumstances of this case, it was open to his Honour to reject that submission.

(c) The claimant was denied a proper hearing as to costs.

This submission is not made out. It is apparent from the transcript of 19 November 2004 that the claimant was not restricted in any way in making submissions as to costs.

18 (d) The conduct of his counsel was contrary to his instructions.

This submission has already been dealt with. It was not a relevant consideration which his Honour could or should have taken into account.

19 (e) The costs order was unfair because the claimant did not have

the means to meet it.

This also is a consideration which was irrelevant to the issue before his Honour.

20 (f) The order that the costs were payable forthwith amounted to

oppression.

There is no substance to this submission. The effect of his Honour's order was that the opponent could have the costs assessed and require payment from the claimant as soon as that process was completed. The order did not prevent the claimant from continuing with the litigation while that process was taking place and after it was concluded. His Honour clearly concluded that the issues raised in this costs application were discrete from the outcome of the principal proceedings. This was undoubtedly correct.

21 It follows that the challenge to the decision of Wood CJ at CL by the claimant has not been made out. Accordingly, the orders I would make are as follows:

(1) Refuse leave to appeal.

(2) The claimant should pay the opponent's costs of this application for leave to appeal.

Judgment of Johnson J to dismiss the Further Amended Statement of Claim

Factual background

22 In order to better understand the proceedings before Johnson J, it is necessary to set out in detail the contents of the Further Amended Statement of Claim, which was the subject of the application, and the way in which the matter proceeded and was argued. The claimant was represented in the application by Ms McManus of counsel, who appeared pursuant to a referral for legal assistance by Wood CJ at CL.

23 The opponent sought orders that the Further Amended Statement of Claim be stayed or dismissed, pursuant to Part 13 rule 5 of the Supreme Court Rules (SCR). By the time Johnson J heard the motion the Civil Procedure Act 2005 (CPA) and the Uniform Civil Procedure Rules (UCPR) had commenced. Section 67 CPA provided a statutory power to stay proceedings and Pt 13 r13.4 UCPR was in similar terms to Pt 13 r5 SCR with respect to the power of dismissal.

24 The plaintiff did not swear an affidavit or give evidence. He relied upon the affidavit of Mr Walsh sworn 15 October 2004, the affidavit of Mr Ellis sworn 15 October 2004 (a barrister who previously represented him) and an affidavit of Ms Mileski sworn 18 October 2004.

25 In the opponent's case the following evidence was read or tendered:

(a) An affidavit of Ms Goodhand sworn 16 December 2004 which had exhibited to it a folder containing pleadings, transcripts, affidavits, correspondence and other documents relevant to the application (exhibit CRG 1).

(b) An affidavit of Ms Goodhand sworn 23 December 2004.

(c) An affidavit of Ms Goodhand sworn 26 May 2005.

26 The above evidence was admitted without objection. Johnson J did, however, reject an affidavit of Dr David Moore, the claimant's general practitioner, sworn 5 August 2005 on which the claimant sought to rely. Apart from being served late, the primary reason for his Honour rejecting the affidavit was the absence of evidence from the claimant which would provide a basis for Dr Moore's opinion. The affidavit apparently related to treatment provided to the claimant before 12 October 2004.

27 As already indicated, the Further Amended Statement of Claim asserted three sets of incidents which gave rise to three separate claims.

28 The first claim alleged false arrest, false imprisonment and malicious prosecution arising from a charge brought by Senior Constable Cusack and Detective Senior Constable Birch of Burwood Police Station on 11 June 1997. This charge arose when the claimant was allegedly alone with a boy named "TR" who escaped from him to a restaurant complaining of being indecently assaulted by him. The claimant was prosecuted in the Local Court and following a hearing, was convicted of the charge of aggravated indecent assault on 23 October 1997. The claimant appealed to the District Court against the conviction. "TR" declined to give evidence again and as a result, the DPP offered no evidence at the hearing of the appeal in the District Court. On 27 July 1998 the appeal was allowed and the conviction and sentence were set aside.

29 The Further Amended Statement of Claim included in the particulars of malice with respect to this claim, the allegation of the corrupt demand allegedly made by Senior Constable Cusack for $50,000.

30 The second claim alleged false arrest, false imprisonment and malicious prosecution arising from charges brought by Detective Senior Constable Metcalf and Constable Muxlow of the Taree Police Station on 21 February 2000. The claimant was charged with seven counts of using a false instrument contrary to s300(2) Crimes Act 1900 and seven charges of serving or causing to be served false tribunal documents contrary to s4 Unauthorised Documents Act 1922. The Crimes Act charges were withdrawn at the Taree Local Court on 8 August 2000 and the prosecution proceeded with the charges under the Unauthorised Documents Act 1922. On 23 March 2001 the claimant was convicted in the Local Court on each of the seven counts alleging offences under that Act. On appeal to the District Court against the convictions, the claimant's appeal was allowed with respect to some counts and dismissed with respect to the balance. The documents, the subject of the charges, were subpoenas said to have been falsely signed and sealed.

31 The third claim alleged false arrest, false imprisonment and malicious prosecution arising from a charge brought by Detective Senior Constable Metcalf and Constable Muxlow of the Taree Police Station on 29 February 2000. The claimant was charged with perverting the course of justice under s319 Crimes Act 1900. This charge arose when the claimant appeared before Judge Christie QC at the Taree District Court on 23 February 2000. The claimant had an appeal matter before the Taree District Court and was appearing for himself. The claimant announced that he had some sensitive issues to raise and requested that the parties speak to the presiding Judge in chambers about those matters. In the Judge's chambers the claimant alleged that he had been informed by a Constable Smoothy that Judge Christie was corrupt and accepted bribes and that his Honour and his wife were part owners in a Sydney hotel through which money was laundered for organised crime.

32 The claimant was charged with perverting the course of justice and was tried and convicted following a trial before Dowd J and a jury in the Supreme Court. The claimant represented himself in that trial. The claimant was sentenced to imprisonment for 12 months to be served by way of periodic detention. Upon appeal to the Court of Criminal Appeal, the court found error in the summing up of the trial Judge, quashed the conviction but determined for discretionary reasons that a new trial should not be ordered and that a verdict of acquittal should be entered (R v Clark [2002] NSWCCA 16).

33 The Further Amended Statement of Claim alleged abuse of process with respect to the three sets of charges. The particulars of improper motive included an allegation that criminal process was utilised by the police officers to justify the unlawful charging and arrest of the claimant on the three occasions, to conceal earlier improper investigations of the claimant and to conceal improper conduct on the part of the police officers. This was the form of the Further Amended Statement of Claim which was fixed for hearing before Wood CJ at CL on 11 October 2004 with an estimate of 10 hearing days.

34 In his judgment, Johnson J carefully reviewed what had been said on behalf of the parties before Wood CJ at CL. In order to understand his Honour's reasoning, it is necessary to set out some of this material.

35 When the matter was called on for hearing on 12 October 2004, Mr Steirn SC advised the Court that in his opinion the matter was not ready to proceed but that he had instructions from the claimant to do so. He submitted that the "main plank" of the claimant's case was the conversation between Senior Constable Cusack and the claimant in which the police officer allegedly solicited a bribe of $50,000 in exchange for which the claimant would not be charged with indecent assault.

36 Mr Steirn SC set out what was alleged to be in the conversation (T.1.40, 12 October 2004).

"CUSACK: Are you a player?

PLAINTIFF: Pardon.

CUSACK: Are you a player?

PLAINTIFF: I don't understand.

CUSACK: Once we go through that door you'll be charged. For $50,000 you could walk.

PLAINTIFF: I haven't done anything.

CUSACK: I know the kid [the complainant] is full of shit. For $50,000 you walk. No charge, no publicity.

PLAINTIFF: You do what you want to do but I won't pay anthing.

CUSACK: Well I'll burn you and Chris Murphy."

(Mr Murphy was a solicitor then appearing for the claimant in respect of that charge.)

37 Mr Steirn SC informed Wood CJ at CL that the conversation had been tape recorded by the claimant (T.2.7).

"Now the court should know as indeed the defendant does know now, that particular conversation which is in precise terms was recorded by the plaintiff at the time by the use of a pocket recorder. The plaintiff kept that cassette and later on when Mr Walsh, my instructing solicitor, became involved in the matter he, Mr Walsh, listened to that cassette and because of distortions and background noises, one was unable to hear those precise words. The consequence was that the plaintiff obtained an enhanced version of that cassette and it was recorded on a disc, which is a modern way of doing things I understand.

That disc your Honour was listened to back in February of this year by Mr Walsh of course, by my junior Mr Kostopoulous and then other counsel in the matter Mr Graham Ellis. I am instructed and I accept for the purpose of this submission that those words that I previously read to you are as clear as a bell."

38 Mr Steirn SC informed the court that he had required the original tape and an enhanced version of it to be played in his presence, but that he was unable to understand the tape nor understand what was supposed to be on the enhanced version. He said:

"You cannot intelligently decipher what was said on the original tape". (T.2.41)

He explained that efforts had been made the previous day by experts to re-enhance the copy of the tape but that these efforts had been unsuccessful.

39 At T.2.49 Mr Steirn SC said:

"It is my view that that piece of evidence is probably the main plank in the plaintiff's case because if it be true then that evidence would stand unassailed in my respectful submission. Absent that evidence, the plaintiff is in a very difficult position given the fact that he was there by himself.

It is my respectful submission that that evidence should come before this court as part of the plaintiff's case and copies should be given to the other side for them to obtain instructions. But that cannot be done of course until the original is retested and/or enhancements made.

It is my respectful submission that the matter should be adjourned in the plaintiff's own interests.

Having said that, I was told not one minute before your Honour came on the bench, that the plaintiff wishes to continue regardless. So therefore my instructions at the end of the day are for the matter to proceed. But not unnaturally when I learnt of the predicament which the plaintiff had suffered, I communicated my concerns to Mr Neil early this morning, having received instructions from my solicitor Mr Walsh that the matter should be adjourned for the reasons I have given. Those instructions have since changed."

40 Mr Neil QC (who appeared for the opponent) proposed a technical examination of the tapes (T.4.35).

"At this stage I had thought perhaps supervised by the court, your Honour or some judicial officer, which we could ask for the provision of the original, all copies that had been made a statement of who was the enhancing person so we could interview them and have the provenance and reliability of these tapes looked at by our experts. We would have to get some experts.

HIS HONOUR: It would have to be a joint situation, I don't think in these circumstances it would be appropriate for the plaintiff simply to hand the material over without being present at whatever testing took place. It would need to be a joint testing.

NEIL: I would accept that. I had in mind we might bring in some minutes to your Honour perhaps tomorrow for a regime that the court would approve because in my submission it is vital."

41 A question arose as to the relationship between the conversation allegedly tape recorded and the other arrests and charges of the claimant in the second and third claims in the proceedings. Mr Steirn SC said (T.5.57):

"In essence what we are saying, there was a concerted effort by the police. The police became involved with the plaintiff, both at Burwood and his hometown of Wingham. Also the Taree Police when they learnt of the plaintiff's Statement of Claim in relation to the Burwood incident the police at both Wingham and Taree took an active role in applying pressure in a variety of ways."

42 In due course instructions were obtained from the claimant to seek an adjournment. This was agreed to by the opponent. Wood CJ at CL vacated the hearing and said (T.9.8):

"I will direct that the plaintiff file and serve upon the defendant by 5pm on Monday [18 October 2004] next an affidavit identifying the original tape and all enhancements which have been made thereof, together with a list of the persons who have been involved in undertaking enhancements and of the date of those enhancements. I note that the parties will bring in some short minutes to establish a joint regime for the further testing and possible enhancement of the original tape."

His Honour listed the matter on 25 October 2004 "with a view to giving directions as to the further testing and possible enhancement of the tape" (T.9.28).

43 On 18 October 2004 the opponent's solicitor received affidavits from Mr Walsh sworn 15 October 2004, and Ms Mileski sworn 18 October. In his affidavit Mr Walsh said:

"7. I say that I was instructed by the plaintiff that the tape-recording of the aforementioned conversation, had been carried out on a mini cassette tape-recorder that was in a pocket on the plaintiff's person. I received instructions from the plaintiff that that mini cassette tape remained in the possession of the plaintiff.

8. I sought on a number of occasions from the plaintiff to listen to the cassette tape recording for the purposes of confirming my instructions in relation to the allegations against Detective Cusack. The plaintiff informed me that he was not prepared to let me listen to the tape as he was afraid to bring the cassette tape to Sydney as there had been an incident in which the alleged police officers broke into his home, threatened him and then sought to obtain the said tape.

...

13. I say that there was produced in Mr Kostopoulous' chambers, by the plaintiff a personal laptop computer together with an orange juice container. I observed the plaintiff to open the orange juice container and to extract from it a CD which had been secreted in the said orange juice container apparently by the plaintiff. He disclosed to both myself and counsel that he had secreted the CD in the orange juice container as he was fearful that the police would attempt to obtain the CD from him.

14. It is my best recollection that the plaintiff did not bring with him to the conference any tape recording as he was requested to do. I then observed the plaintiff to take the CD out of the cover or some plastic material in which it had been placed. He then placed the CD into the computer. He then activated the computer and I heard quite clearly a recorded conversation between the plaintiff and another male person, whom, upon instructions was Detective Cusack. It is my recollection that the words spoken by the other male person were in conformity with the conversation that had been particularised and upon which the plaintiff seeks to rely in this action before this honourable court. I say that the computer was activated on a number of occasions by the plaintiff to replay the conversation and all present listened carefully to the said conversation.

15. It is my recollection that prior to the conference that took place on 6 February 2004 I had raised with the plaintiff on many occasions the production of the original mini cassette tape. On all such occasions the plaintiff was not prepared to permit me to listen to the original mini cassette tape nor to bring same to counsel's chambers for the purpose of playing same. In this regard it was my understanding from the plaintiff's instructions that he was gravely concerned about he and his family's welfare and that he believed that by retaining the possession of the tape, that in some way this would ensure his safety. It is my best recollection that prior to the conference on 6 February 2004 I spoke to the plaintiff yet again about this issue and that he was very reluctant to bring the original tape to conference. It is my best recollection that he informed me that the tape had been downloaded onto a CD and that he was prepared only to bring the CD to the conference with counsel.

...

17. I say that the CD that was placed by counsel in the said laptop computer was handed to me and there was marked on the cover the words "Peter Clark warning do not remove seal". I say that the said CD was then taken by me and put in a drawer in my desk in my home where it remained until prior to the trial before this honourable court.

18. I say that on 11 October 2004 I was not physically present in Sydney due to a long term commitment I had in relation to a large fraud matter in the Southport District Court. I disclose to this honourable court that I was contacted by senior counsel for the plaintiff, Clive Steirn SC, and also by Mr Andrew Kostopoulous and my employed solicitor Pamela. I say that each of them at various times raised with me the practical difficulties that they were experiencing, firstly in being able to hear the conversation on the said min cassette tape and secondly accessing the audio file on the CD.

19. I disclose to this honourable court that senior and junior counsel and my employed solicitor went to considerable lengths, upon my information and belief, to have the audio file on the CD downloaded or in effect played. Those attempts also extended to the mini cassette tape and I am informed and verily believe that arrangements were made for the tape to be taken to a recording studio to have the contents of the tape recorded and to suppress the background noise that was apparently on the tape. In this regard exhibited to this my affidavit as exhibit "1" is the original CD that was handed to me in counsel's chambers on 16 February 2004. I further exhibit to this my affidavit as exhibit "2" the CD that was created at the sound recording studio in Sydney when attempts were made to record the conversation on the mini cassette tape.

20. I further disclose to this honourable court that apart from the recording studio to which the mini cassette was taken Mr Kostopoulous arranged an expert to come to his chambers who spent many hours attempting to access the CD and to identify the audio file on the said CD.

...

22. I am informed and verily believe that the plaintiff also took the mini cassette tape to a number of retail places in Sydney in an attempt to play it on an electronic device which may have been able to either suppress the background interference or noise so to enable it to be played before this honourable court. I understand that those attempts were unsuccessful.

...

24. On the afternoon of 12 October 2004 I was contacted urgently by Senior Counsel who disclosed to me that a fax had been received from the plaintiff in which he had indicated that he had destroyed the said mini cassette recording of the conversation between himself and Detective Cusack. Annexed hereto and marked "A" is a true copy of a letter received from the plaintiff on 12 October 2004. I have placed this letter in an envelope and marked the envelope "subject to legal professional privilege". I have done this as it may be that the said letter is privileged. Also annexed hereto and marked with the letter "B" is a letter that I have forwarded to the plaintiff. I have also placed this letter in an envelope sealed and marked "subject to legal professional privilege" on the same basis.

25. I further disclose to this honourable court that I telephoned the plaintiff at approximately 5pm on 12 October 2004. Without going into the details of the said conversation the plaintiff confirmed that he had destroyed the said tape."

44 In the proceedings before him, Wood CJ at CL held that the letter addressed by the claimant to Messrs Steirn SC, Kostopoulous, Walsh and Ms Mileski was not covered by legal professional privilege. That letter relevantly provided:

"You only had to get me in the witness box I would have produced the original and the CD both crystal clear.

How many times did I say that I wanted to get the tapes before a judge and then it would be in his hands, over and over I have stated this?

That's all you had to do get me in the witness box, the court was the only entity that I would trust with the original tape and copy.

My suspicions were raised when I learned that a former police officer was now senior counsel. I thought and believed if the matter is not going to proceed on 11 October and sure enough out comes the crap about PIC and the matter is adjourned. And to use Mr Steirn's word "unbelievable" how can this matter go before several District Court Judges, Registrars, Masters and a Supreme Court Judge back in 2002 and they not pick up that a matter should be referred to PIC first.

This I just cannot comprehend.

If only you had put me on the stand, well on the way back to Taree I destroyed the original crystal clear tape and CD. They are scattered from Sydney to my home.

It's not you that has metal implants in your face, it's not your family's lives that have been threatened over this tape. You haven't had a gun put to your head with the hammer cocked.

Well now they're gone and I'm glad. I will now be able to confront Thomas Cusack face to face and a judge will decide who's telling the truth based on all the facts. Please read attached two previous letters to your office.

I now intend to rest til Friday and return to my normal dose of Efexor. I wait to hear from you then."

45 In relation to the discs referred to in the affidavit of Mr Walsh, Johnson J said:

"39 ... Exhibited to Mr Walsh's affidavit was an original compact disc handed to him by the Plaintiff in counsel's chambers on 6 February 2004 which was said to contain a version of the alleged conversation. Also exhibited to Mr Walsh's affidavit was a compact disc said to have been created at a sound recording studio in Sydney when attempts were made to record the conversation on the mini cassette tape (paragraph 19, affidavit, GA Walsh, 15 October 2004). The two compact discs were produced to the Court in envelopes which have remained with the Court papers. As I understand it, these compact discs are said to contain copies of the conversation alleged to have been made from the original mini cassette tape. It was not submitted before Wood CJ at CL in October 2004, or at the hearing before me in August 2005, that some further technical analysis could be undertaken with respect to these compact discs. Nor was it submitted that the existence of these compact discs was relevant to the Defendant's application to stay or dismiss the proceedings. It appears that the critical question, at all times, has been the Plaintiff's destruction of the original mini cassette tape which was required to be subjected to technical analysis to determine its authenticity."

46 Johnson J approached the matter on the basis that the provisions of the CPA and UCPR were to be applied, i.e. Pt 13 r13.4 UCPR, s61(3)(a) and s67 CPA. His Honour reviewed the authorities as to what amounted to an abuse of court process, particularly where those authorities related to the destruction of evidence. The authorities to which his Honour referred were: Batistatos v Roads and Traffic Authority of New South Wales and Newcastle City Council [2006] HCA 27; 226 CLR 256; Fuji Xerox Australia Pty Ltd v Lee [2003] QSC 303; British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197; 7 VR 524; Arrow Nominees Inc v Blackledge [2000] EWCA Civ 2000; All ER (D) 854; Logicrose Ltd v Southend United Football Company Ltd (No 1) (1998) 132 SJ 1591; Times, March 5, 1988 (Chancery Division); Allen v Tobias [1958] HCA 13; 98 CLR 367 ; Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181; and Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510.

47 His Honour then summarised the relevant principles as follows:

"100 The principles surrounding the consequences of destruction of potential evidence by a party have emerged largely from cases where destruction has occurred before the commencement of proceedings.

101 Applications for a stay or dismissal of proceedings (Fuji) or entry of a verdict for the defendant (British American Tobacco Australia Services Limited v Cowell) have not been granted. Where destruction of potential evidence or fabrication of evidence has occurred after proceedings have commenced (Arrow Nominees), dismissal of proceedings has been ordered. In cases where material is intentionally suppressed but is finally produced (Logicrose), the Court has taken the view that the Court's processes have not been defeated and that the proceedings should be allowed to proceed.

102 In other cases, the issue has been left to the drawing of inferences adverse to the party who has destroyed the material prior to trial, applying the principles in Allen v Tobias and Katsilis. Whether an adverse inference will be drawn, and the strength of the inference, will depend upon the particular circumstances of the case. In a clear case of conscious destruction of material which was likely to be used in evidence, a strong inference adverse to the destroying party may be drawn with the ultimate inference being of the type referred to in Marsden v Amalgamated Television Services Pty Limited.

103 However, the remedies available in such circumstances are not confined to the drawing of appropriate inferences. If the conduct of the destroying party may be characterised as an abuse of process, then the power of the court to stay or dismiss proceedings may be utilised in an appropriate case. This power is to be exercised sparingly.

104 Ordinarily, a party is entitled to initiate and continue proceedings with the court determining those proceedings on their merits. Where, however, a party to proceedings intentionally destroys material which is significant to the determination of the proceedings, and such destruction occurs after the proceedings have been commenced, then a clear foundation would appear to exist for the court to call in aid its power to stay or dismiss the proceedings. The court will have in mind the interests of the individual parties to the civil proceedings, but also the protection of the administration of justice and the integrity of the courts and the system of justice generally. Resolution of an application for a stay or dismissal of the proceedings will consider the question whether a fair trial may take place in the absence of the destroyed material even where an appropriate inference may be drawn adverse to the destroying party."

His Honour's statement of principle was approved in Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 at [93].

48 His Honour set out the submissions made on behalf of the claimant. The submissions are grouped under three headings and can be summarised as follows:

(a) The claimant's actions were explainable by the surrounding circumstances.

It was clear from the affidavit of Mr Walsh that the claimant was gravely concerned about his family's welfare and was fearful that the police would try to take the tape. Correspondence from the plaintiff and his fluctuating instructions as to an adjournment were consistent with that fear. Accordingly, the Court would accept that the claimant's fear was genuine.

(b) A fair trial was still possible.

Even though the tape had been destroyed, the conversation with Senior Constable Cusack had been fully particularised and the issue would turn on whether the claimant was believed, or whether Constable Cusack was believed. This was a common situation in courts. In any such contest, the opponent would have the advantage of adverse inferences likely to be drawn against the claimant because of his destruction of the tape. In that regard, the summary termination of civil proceedings was an exceptional step and should be only sparingly employed and should not be employed where a fair trial was still possible.

(c) The destruction of the tape only affected the first of the

three claims contained in the claimant's Further Amended Statement of Claim.

The other two claims were quite discrete and should be allowed to remain. Even if the tape had been tested and found to be false, this would not have meant that the other two claims in the proceedings would fail.

49 His Honour set out the reasons for his conclusion as follows:

"143 A number of the submissions made by the Plaintiff appear to criticise the conduct of Mr Steirn SC in bringing the existence of the tape to the knowledge of the Defendant and to Wood CJ at CL on 12 October 2004. I have no doubt that the actions of Mr Steirn SC were entirely appropriate. He owed a duty to the Court as well as a duty to his client. There remained an issue concerning the legality of the tape recording, if it was genuine, given the provisions of the Listening Devices Act 1984. The Plaintiff's instructions that the tape ought be produced as a surprise piece of evidence whilst he himself was giving evidence was not, in my view, an appropriate course for counsel to have followed. It is entirely understandable that an experienced counsel such as Mr Steirn SC took the course which he did.

144 I am satisfied that the destruction of the tape by the Plaintiff constitutes an abuse of process. The destruction of material which is in existence, and is to be subjected to analysis pursuant to court direction for evidentiary use in current proceedings, is a clear example of such abuse. It is not necessary for the Defendant to establish that the acts of the Plaintiff were delinquent, blameworthy or contumelious for the purposes of establishing abuse of process: Batistatos. Nevertheless, the circumstances of the present case establish, to the civil standard, an intentional destruction of items of potential evidence when their evidentiary significance was known to the Plaintiff. The conduct of the Plaintiff may be characterised appropriately as blameworthy or contumelious.

145 In my opinion, the circumstances of this case constitute a stark example of abuse of process. This is not a case where items of potential evidence were destroyed before the commencement of proceedings. The Plaintiff destroyed the tape and compact disc after the proceedings were on foot. Further, the act of destruction occurred within hours of directions being made by a Judge of this Court with respect to the preservation of the items in question for technical analysis to determine their genuineness. All of this was to be done for the purpose of future use of the items in evidence in the proceedings. I accept the submission of Mr Neil QC that this case constitutes a "high watermark" of the class of abuse of process involving destruction of potential evidence.

...

147 Having determined that an abuse of process has been established, the question arises as to what course should be taken with respect to the Defendant's application for a stay or dismissal of the proceedings. The relief sought by the Defendant has been referred to in the authorities as being a "drastic" or "Draconian" step. Exceptional circumstances are required before such an order should be made.

148 It is necessary to consider whether a fair trial can take place following the Plaintiff's destruction of the tape. Further, it is necessary to have regard to the protection of the integrity of the processes of the Court and the administration of justice generally. An order should not be made to punish the Plaintiff. Nor should an order be made as a means of demonstrating curial outrage in response to the Plaintiff's actions. However, an order made for reasons protective of the administration of justice may have the consequence of preventing the Plaintiff from further litigating his claims. The Plaintiff may perceive this as punishment even though that is not the purpose of the order.

149 I have given consideration to the question whether a fair trial may take place with the Defendant having the benefit of strong inferences drawn in its favour. These inferences would include an inference that the tape would not have assisted the Plaintiff's case, an inference adverse to his credit and an inference that the destructions of the tapes by the Plaintiff constituted an admission by conduct that his case was weak.

150 I am not satisfied that the abuse of process demonstrated in the present case would be met sufficiently by such an approach. I am not satisfied that a fair trial of the Plaintiff's claims may take place, even with such inferences being drawn favourably to the Defendant. There remains a real and substantial risk that the Defendant will not have a fair trial of the proceedings.

151 Further, such an approach would give no proper weight to the need to protect the integrity of the processes of the Court and the administration of justice. There is a near contemporaneous link between the directions made by a Judge of this Court and the destruction of potential evidence by the Plaintiff in the face of those directions. This is a significant and unusual feature of this case which requires a judicial response. I emphasise that such a response is not by way of judicial outrage at the actions of the Plaintiff. Rather, the protection of the administration of justice must be given strong emphasis in this case.

...

153 I have considered, as an alternative, an order staying or dismissing the first proceedings relating to the 1997 arrest and prosecution. It is in the context of that arrest that the alleged conversation occurred. I do not consider that this approach is appropriate in the unusual circumstances of this case. The case advanced by the Plaintiff suggests an inextricable link between the three sets of proceedings. I do not accept the submissions for the Plaintiff that, in some way, the second and third set of proceedings can proceed justly to a fair trial.

154 In the exceptional circumstances of the present case, I am satisfied that the appropriate step is to order that the proceedings be stayed or dismissed. The better course, in this case, is that the proceedings be dismissed.

...

156 The Plaintiff instituted civil proceedings against the Defendant seeking damages for the torts alleged by him. In circumstances where his conduct constitutes a clear abuse of process committed whilst proceedings were on foot and in the face of directions of the Court, the appropriate course is an order dismissing the proceedings. That power ought be exercised in this case to safeguard the administration of justice and this purpose transcends the particular interests of the Plaintiff in the litigation: Batistatos at paragraph 12."

Application to Adduce Additional Evidence

50 The claimant sought to place before the Court a substantial amount of additional evidence concerning events which occurred before August 2005 when the motion was heard by Johnson J, but which was not before him. The claimant did not offer any explanation for why that material was not placed before his Honour. To the extent that any explanation was attempted, the claimant submitted that counsel representing him before Johnson J was not competent.

51 There has been no application pursuant to either Pt 51 r19 SCR or r51.51 UCPR. Those rules require that a party wishing the Court to receive additional evidence must file a motion with a supporting affidavit setting out the evidentiary basis for why the additional evidence should be raised. The opponent opposes the reception of the additional evidence.

52 I do not propose to identify every piece of additional evidence sought to be relied upon by the claimant. It is voluminous and exceeds several hundred pages. The additional evidence can be found in the White book filed on his behalf, as annexures to an affidavit sworn by him on 14 September 2006, in documents filed in court before the Registrar on 14 November 2011 and 7 March 2012 and as annexures to a document in the form of an unsworn and undated affidavit entitled "Supplementary Submissions Continued Malicious Prosecution re Ms Katie Bright" and in two bundles of documents filed in court in the course of this application entitled "Evidentiary Statement/Affidavit of Peter Frederick Clark" and "Response to the Defendant's Submissions". The Court deferred ruling on the admissibility of this additional evidence, but indicated that a ruling would be made when judgment was delivered.

53 While it is not useful to identify each document which forms part of the additional evidence sought to be relied upon, it is possible to place the evidence into categories and that is how I propose to deal with it.

54 There was correspondence between the claimant and Mr Walsh which predated the appearances before Wood CJ at CL. There were photocopied photographs which were taken before August 2005. There were statements by young persons who do not appear to have anything to do with the claims made in the Further Amended Statement of Claim. The statements suggested that these young persons made false accusations against the claimant in relation to other matters. The statements predate the hearing before Johnson J or refer to matters which occurred before that date. There was correspondence between the claimant and the Manning Great Lakes Command of the NSW Police Service. There were statements from police officers concerning matters which predated the hearing before Johnson J. There was a psychiatric report of March 2004 to the effect that the conduct of the police in 1997 and 2000 had caused the claimant to become anxious and depressed.

55 The claimant sought to rely upon two affidavits sworn in July and September 2006. The affidavit of July asserted difficulties which the claimant had experienced with the police at Taree and sought to explain why he destroyed the tape. The affidavit of September 2006 asserted that two police officers removed CD copies of the tape from his home in Taree in late January 2005. There were unsworn statements by the claimant which purported to provide evidence of difficulties which the claimant had with the police and various young persons who were making accusations against him.

56 There were annexed to the claimant's statements and submissions, transcripts of proceedings before the District Court on 25 May 2009, September and October 2010 and August 2011. The nature of these proceedings and the purpose for which the claimant wished to use the transcript extracts were not clear.

57 It was not clear how the claimant intended to use the additional evidence if the court were prepared to receive it. Some of the material, particularly the police statements, seemed to go to the merits of the matters pleaded in the Further Amended Statement of Claim. Other material seemed to go to the claimant's assertion of a widespread police conspiracy against him, both generally and to prevent him relying upon the tape. Some of the material seemed to be directed to the claimant's assertion that his legal representatives were poorly prepared when they appeared before Wood CJ at CL and did not comply with his instructions.

58 Sections 75A(8) and (9) of the Supreme Court Act 1970 (SCA) allow the Court to receive additional evidence. The ability to do so is not at large. In the case of a "hearing on the merits", additional evidence will not be received "except on special grounds".

59 As the review of the cases in Nominal Defendant v Manning [2000] NSWCA 80, 50 NSWLR 139 makes clear these proceedings, although interlocutory, would probably be regarded as involving orders of a substantive nature so as to attract the operation of s75A(8) SCA. In those circumstances, the combination of the statutory requirement for "special grounds" together with the common law meant that additional evidence as to matters which occurred before the hearing before Johnson J, should only be received by the Court if the evidence were credible, highly probative and not previously obtainable by reasonable diligence.

60 Given the way in which the evidence has been produced, i.e. a series of apparently unrelated statements and other documents, linked only by submissions and/or assertions of the claimant, the credibility of the material is simply unknown. Moreover, since this additional evidence emanated from the claimant, it was clearly available for use before Johnson J, had the claimant wished to rely upon any of it.

61 The major difficulty with this additional evidence, however, is that it is not highly probative. On the contrary, its relevance to the issues which his Honour had to decide and which this Court has to decide is problematic. Much of it is clearly irrelevant and to the extent that any of it is relevant, the relevance is marginal at best. In relation to the affidavits of July and September 2006, which are relevant, there were sound forensic reasons why it was decided that the claimant should not give evidence before Johnson J.

62 For those reasons the additional evidence, which relates to matters which occurred before the hearing before Johnson J, should not be received by this Court on this application.

63 The three pieces of transcript from proceedings which took place after the hearing before Johnson J are in a different category. They can properly be regarded as fresh evidence. Nevertheless, the discretion of the Court to admit such evidence is not at large (Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 at 292D; Radnedge v Government Insurance Office of NSW (1987) 9 NSWLR 235 at 249A, 251G-252A,G).

64 The difficulty for the claimant is that the transcript extracts of May 2009, September 2010 and 10-12 August 2011 have no relevance to any issue before the Court. The evidence of Messrs Steirn SC and Mr Walsh of 9 August 2011 and that of Mr Kostopoulous of 16 August 2011 is relevant but consists of those persons trying to recollect events which occurred during the appearances before Wood CJ at CL. They add nothing to the extracts from the submissions of Mr Steirn SC already set out and the contents of Mr Walsh's affidavit of 15 October 2009.

65 The transcripts of evidence which came into existence after the hearing before Johnson J should not be received.

66 In the course of this hearing, the claimant called upon a Notice to Produce directed to the opponent for the production of any CDs which were copies of the tape taken by police officers from his home in early 1999 and on 20 January 2005. The claimant in oral submissions, and in an unsworn document handed up in Court (exhibit F), asserted that CDs meeting this description had been taken from his home in Taree on those occasions. Production of the CDs was opposed by the opponent.

67 The Court rejected the Notice to Produce. It did so by reference to what Johnson J said at par [39] of his judgment (see [43] hereof). This indicated that the Court was already in possession of CDs which were copies of the tape and indicated that such CDs were not of particular assistance, rather it was the original tape which was important. In rejecting the Notice to Produce, the Court was also mindful of the problems which had been experienced by Mr Steirn SC, Mr Walsh and others in obtaining anything useful from the CDs produced to Johnson J and the claimant's reference in his letter to the tape and CD which he destroyed as being "crystal clear". There was no indication given to the Court that CDs taken by the police which were copies of the tape (if they existed) would be of any more assistance than the two CDs which were already part of the court papers.

The Claimant's Submissions

68 The claimant's oral submissions did not engage the issues in the judgment of Johnson J, i.e. whether his conduct constituted an abuse of process and if so, what consequences flowed from that finding and whether it was appropriate for the Further Amended Statement of Claim to be dismissed.

69 The matters raised by the claimant in his oral submissions were:

(i) The merits of the claims raised in the Further Amended Statement of Claim and whether there was any proper basis for him to be prosecuted.

(ii) The failure of his legal advisers before Wood CJ at CL to take proper instructions from him and to fully understand his case. In particular his understanding that no warning would be given to the opponent as to the existence of the tape, but that it would be produced by him when he was giving his evidence, either in chief or under cross-examination.

(iii) The failure of his legal advisers in the proceedings before Wood CJ at CL to advise him in time that the CD and the tape were not capable of being understood so as to allow him to obtain a further copy CD from his home.

(iv) He would adopt the submissions of the amicus concerning the judgment of Johnson J.

70 Apart from the adoption of the submissions of the amicus, the matters raised orally by the claimant were not such as would lead to this Court interfering with the judgment of Johnson J even if they were made out.

71 It then becomes necessary to consider the claimant's written Grounds of Appeal. They appear at the front of the folder of submissions and documents filed with the Court of Appeal Registry on 7 March 2012.

Ground of Appeal 1

Miscarriage of justice "Incompetence of Counsel" the Pro Bono Barrister, Ms McManus appointed by the Registrar, inter alia:

a. failed to obtain a proper psychiatric report from a psychiatrist before the hearing,

b. failed to take a draft proof of evidence from the appellant before the hearing;

c. advised the appellant wrongly not to give evidence and

d. failed in general to defend the appellant inter alia; with respect to the Browne and Dunn Rule and the rule of Professional Practice.

Ground of Appeal 2

Miscarriage of justice as a result of;

a. new evidence not being put before the Court and

b. fresh evidence that was not available before the hearing has now come to light justice would miscarry if this evidence is not taken into account.

Ground of Appeal 3

Miscarriage of justice as there was no "Actus Reus" in that the appellant could not be ordered, directed or compelled to produce any evidence and/or any document to any Court by any Justice, Judge or Magistrate that could implicate the appellant in any crime.

Ground of Appeal 4

Miscarriage of justice as there was no "Mens Rea" on the part of the appellant.

Ground of Appeal 9

Miscarriage of justice in that the appellant's instructing solicitor, Gregory Walsh did not communicate the appellant's written and verbal instructions to his counsel re production of the alleged recording to the Court.

72 The Further Amended Statement of Claim involved civil proceedings. Whereas the incompetence of counsel can give rise to a miscarriage of justice in a criminal trial thereby entitling an appellant to relief, it is not clear that such a complaint even if made out in respect of civil proceedings, would produce the same result.

73 In Smits and Anor v Roach and Ors [2006] HCA 36; 227 CLR 423 at [46] the plurality said:

"46 The adversarial system of litigation operates upon the basis that a party is generally bound by the conduct of counsel, and that counsel has a wide discretion as to the manner in which proceedings are conducted. The width of that discretion is reinforced by the role of the barrister as an officer of the court, by the barrister's paramount duty to the court, and by the public interest in the efficiency and finality of the judicial processes. This was civil litigation. If Mr Lindsay had failed to object to inadmissible evidence in the course of the trial, the appellants would have been bound by the consequences, and there would have been no inquiry by an appellate court as to whether that had occurred for a good reason or with the approval of the clients. Indeed, such an inquiry would normally be impossible. Similarly, if Mr Lindsay had decided not to pursue a certain line of argument, or press a possible point of law, the appellants could not have complained to an appellate court that he had failed to consult them about the matter. The respondents were not at risk of having a favourable decision set aside on the ground that, in some aspect (perhaps some very important aspect) of the conduct of the case, Mr Lindsay was acting without express instructions from his clients. That was because in conducting the case on behalf of his clients, Mr Lindsay was exercising wide and independent discretion. If it were otherwise, any judgment in a civil case would be at risk of being set aside on the ground that counsel had acted in excess of authority, and the appellate process would be one of endless re-litigation of contested issues."

74 Conceptually, one could envisage a circumstance where the conduct of counsel was so inept that it could cause a trial to miscarry. In that circumstance, the situation would be analogous to one where a judge fell sick or was unable to continue with a trial. If such a basis for an appeal exists in respect of civil proceedings, the circumstances of the claimant's representation before Johnson J fell far short of such a situation.

75 There were very good reasons for counsel deciding not to lead evidence from the claimant. There was a considerable risk that the claimant would incriminate himself, both in relation to the destruction of the tape and in relation to other matters. This was a concern which counsel communicated to him. Even without the risk of self-incrimination in a criminal sense, the strong inference to be drawn from the claimant's submissions in this application is that he would have fared very poorly under cross-examination. This would be the case whether or not the claimant sought a certificate under s128 of the Evidence Act 1995, or sought to utilise the provisions of s87 CPA.

76 The quality of the claimant's representation before Johnson J can be seen from his Honour's summary of the submissions made on his behalf. Counsel appearing for the claimant raised all relevant issues and argued forcefully for their acceptance. The claimant's criticism of counsel is unwarranted.

77 The complaint about failing to obtain a proper psychiatric report assumes, without evidence to that effect, that a psychiatric report would have been supportive of him suffering from some psychiatric or psychological condition at the time when he destroyed the tape. No such explanation was offered by him to Wood CJ at CL. Moreover, a psychiatric report was likely to be rejected on the same basis as the report of Dr Moore. This was because it would inevitably depend on the reliability of the history provided by the claimant, who for good reason, it had been decided, would not give evidence.

78 The "new evidence" has already been referred to. The submissions accompanying these "Grounds of Appeal" list the particular "new evidence" which the claimant submitted should have been adduced before Johnson J. This "new evidence" comprised statements from young persons and references to videos in which they asserted that they had made false accusations against him. None of the statements relate to the issues which were before Johnson J, nor do they even relate to the merits of the claims made in the Further Amended Statement of Claim. If their reliability were accepted, and they were received as evidence, they went no further than to indicate that there was a group of young persons in the Taree area who were making false accusations against the claimant. If counsel had sought to tender that evidence before Johnson J, objection would certainly have been taken and it would have been rejected.

79 The claimant explained the somewhat Delphic propositions raised in Grounds of Appeal 3 and 4 in his supporting submissions. The claimant was again submitting that the actions of his legal advisers before Wood CJ at CL demonstrated gross incompetence on their part, in particular that Mr Steirn SC advised the opponent of the existence of the tape and of the claimant's intention to rely upon the tape in the proceedings. In Ground of Appeal 4, the claimant was referring to the remorse which he felt after he had destroyed the tape and the letter of apology which he sent to Wood CJ at CL (an item of additional evidence which was not before Johnson J).

80 Ground of Appeal 9 is self-explanatory and has already been dealt with. These grounds of appeal have not been made out.

Ground of Appeal 5

Miscarriage of justice in that Detective David Muxlow named in the statement of claim approached the appellant's witness CDB enticing CDB to make inter alia false sexual assault allegations against the appellant in return for a substantial discount re inter alia, his sentence for the murder of Garry Samson in August 2004.

Ground of Appeal 6

Miscarriage of justice and continues to miscarry in that Detective David Hatchwell named in the statement of claim approached the appellant's witness STB enticing STB to make inter alia false sexual assault allegations against the appellant in return for not prosecuting STB with possessing child pornography and trying to set the appellant up with child pornography.

Ground of Appeal 7

Miscarriage of justice and continues to miscarry in that Detective Mark Stone named in the appellant's later statement of claim 20185 of 2005 approached the appellant's witness DCB see video titled "Dean-Tim" enticing DCB to make inter alia false sexual assault allegations against the appellant in return for a 100% discount on his sentence of 2 years for his conviction for "reckless wounding".

Ground of Appeal 8

Miscarriage of justice and continues to miscarry in that the Defendant, namely counsel Mr Maurice Neil QC failed to follow up on his undertaking to Wood CJ at CL in October/November 2004 that he would contact the Police Integrity Commission to investigate the appellant's serious allegations of police misconduct. Notably it has been 8 years since and the appellant still has not been contacted by PIC.

Ground of Appeal 10

Miscarriage of justice as the defendant's police officer, namely Detective David Woolnough seized copies of the alleged bribe recording in early 1999 from the appellant during a visit to the appellant's former home at 12 Skyline Drive Wingham

Ground of Appeal 11

Miscarriage of justice as the defendant's police officers, namely Detective David Hatchwell and Detective Jeffrey Byram seized copies of the alleged bribe recording on 27 January 2005 from the appellant during the execution of a search warrant on the appellant at his former home at 240 Malcolms Road Taree NSW.

Ground of Appeal 12

Miscarriage of justice in that Detective David Hatchwell named in the appellant's statement of claim along with Detective Jeffrey Byram laid further malicious prosecutions against the appellant on 27 January 2005 knowing them to be false and continue to conceal exculpatory evidence from the jury in the Norrish QC DCJ May-June 2009.

Ground of Appeal 13

Miscarriage of justice in that Detective Jeffrey Byram named in the appellant's new Supreme Court Statement of Claim number 20185 of 2005 tried to intimidate the appellant into withdrawing his statement of claim by stealing exculpatory evidence relating to his statement of claims from the appellant's home during the search on 27 January 2005.

Ground of Appeal 14

Miscarriage of justice in that Detective Jeffrey Bryam enlisted a "rent boy" (Teenage Hustler) by the name of STB to try and entrap the appellant into further malicious prosecutions in April/May 2004.

81 These grounds of appeal are self-evidently irrelevant. They refer to evidentiary matters concerning persons and incidents unrelated to those in the Further Amended Statement of Claim. The references to a later statement of claim and to later criminal proceedings reinforce that conclusion.

82 To the extent that these grounds of appeal raise any issues relevant to this application, they have not been made out.

Ground of Appeal 15

Miscarriage of justice in that the appellant's counsel namely Clive Steirn stated to the court that the alleged bribe recoding was the main plank in the appellant's statement of claim when this was clearly not the case.

83 The transcript of the exchanges which took place between Mr Steirn SC, Mr Neil QC and Wood CJ at CL on 12 October 2004, together with the written submissions and statements made by the claimant in this appeal, make clear how the claimant intended to run his case. He maintained that the charges brought against him by the Taree Police on 21 February 2000 and 29 February 2000 had as a collateral purpose to discourage him from using the tapes in that part of his claim against Senior Constable Cusack and Detective Senior Constable Birch. Mr Steirn SC was doing no more than articulating that tactical approach. Apart from being irrelevant to the issues raised in the appeal, this ground is not supported by the transcript of what occurred before Wood CJ at CL on 12 October 2004 and the claimant's submissions in this appeal.

Ground of Appeal 16

Miscarriage of justice as the appellant was suffering from "hypomania" at the time of the alleged destruction of the mini cassette and CD. The "hypomania" was caused by medication the appellant was prescribed because of the Post Traumatic Stress the appellant suffers from caused by the defendant since June 1997.

84 This ground of appeal comprises a bare assertion by the claimant, unsupported by evidence. Any medical report obtained subsequent to October 2004, would depend entirely upon an unqualified acceptance of the history given by the claimant to the reporting doctor. This would inevitably have required the claimant to give evidence before Johnson J, a course of action which was fraught with risk for him and which his counsel, for sound tactical reasons, decided should not be followed.

Submissions of the Amicus

85 The amicus accepted the correctness of the statement of relevant principles applicable to the opponent's application for the dismissal of the claimant's proceedings at paras [100] - [104] of the judgment (see [46] hereof). However, the amicus submitted that Johnson J had erred at [153] of the judgment in failing to determine that the causes of action arising from the events of February 2000 could continue.

86 The amicus submitted that the cause of action arising from the events of 1997 was quite discrete from the other two causes of action and was not "inexplicably linked" as found by his Honour. The amicus sought to demonstrate this proposition by reference to the way in which the causes of action had been pleaded in the Further Amended Statement of Claim. The amicus adopted the submissions made before Johnson J by counsel for the claimant.

Consideration

87 No challenge was made in the appeal to his Honour's finding that the claimant's action in destroying the tape and the CD copy constituted an abuse of process as referred to in Pt 13 r13.4(1)c UCPR and as discussed in Batistatos. There was no challenge to his Honour's finding that although it was not necessary that there be an element of contumelious disregard, oppressive conduct or moral delinquency before the power to intervene with respect to abuse of process could be exercised, such elements existed in this case.

88 Specifically there was no challenge to the findings of Johnson J that:

"144 ... Nevertheless, the circumstances of the present case establish, to the civil standard, an intentional destruction of items of potential evidence when their evidentiary significance was known to the Plaintiff. The conduct of the Plaintiff may be characterised appropriately as blameworthy or contumelious.

145 In my opinion, the circumstances of this case constitute a stark example of abuse of process. This is not a case where items of potential evidence were destroyed before the commencement of proceedings. The Plaintiff destroyed the tape and compact disc after the proceedings were on foot. Further, the act of destruction occurred within hours of directions being made by a Judge of this Court with respect to the preservation of the items in question for technical analysis to determine their genuineness. All of this was to be done for the purpose of future use of the items in evidence in the proceedings. I accept the submission of Mr Neil QC that this case constitutes a "high watermark" of the class of abuse of process involving destruction of potential evidence."

89 The issue in the appeal was, having found abuse of process, whether Johnson J erred in dismissing the whole of the Further Amended Statement of Claim. In that regard, his Honour well understood that such an order has been described in the authorities as "drastic" or "Draconian" and that it was an exceptional step to be sparingly employed (General Steel Industries Inc v Commissioner for Railways (NSW) and Ors (1964) 112 CLR 125).

90 This issue was recently considered by the Court in Palavi. The Court was divided on whether the abuse of process in that case was such as to require that two imputations be struck out, or whether a fair trial was possible without that "drastic" step being taken. The abuse of process involved the destruction of mobile phones by a plaintiff in defamation proceedings in circumstances where the discovery of those phones was likely to have provided substantial evidentiary assistance to the defendant. The destruction of the phones was made in defiance of an order for discovery.

91 There were, however, some significant factual differences between Palavi and this case. In Palavi the material which was destroyed did not go to proving the plaintiff's case but would have provided powerful evidence in support of the defendant's case. On the other hand, even without the evidence of the mobile phones, there was a substantial body of evidence already in existence comprising television, radio and newspaper interviews with the plaintiff which would have provided the defendant with a strong case in answer to the plaintiff's claim.

92 In this case the tape and perhaps the CD, had their contents been in accord with their description, would have provided powerful evidence in support of the first of the three causes of action in the Further Amended Statement of Claim. On the other hand, had the tape been tested and found to have been a forgery or found to have been modified in some respect, it would have provided powerful evidence for the opponent to rebut the claimant's claim. Accordingly, the testing of the tape provided a potential benefit for each side.

93 Unlike Palavi, absent the material on the tape, the contest between the claimant and the opponent would depend upon a direct contest between the reliability and credibility of the claimant and that of the police officer against whom the accusation had been made. Although the opponent would have the benefit of the adverse inferences which could be drawn against the claimant in such a contest, it would always be open to the tribunal of fact to prefer the evidence of the claimant to that of the police officer. Accordingly, the prejudice suffered by the opponent by the destruction of the tape was real and comparable with the prejudice in Palavi.

94 In Palavi Allsop P observed in relation to "prejudice":

"77 Whilst the respondent was still in a position to particularise, and no doubt to a point prove, its case of truth, it has been deprived of material relevant, and in all likelihood significant, by the destruction of the red Nokia phone. ..."

95 In relation to the exercise of the power to dismiss all or part of a proceeding, Allsop P said:

"93 Johnson J set out principles attending the exercise of such a power in Clark at [100]-[104]. No party submitted that this was an erroneous expression of the matter. As far as they go, they contain no error. They need, however, to be qualified by the following. None of the cases from which Johnson J drew his expression was governed by the Civil Procedure Act . I have previously expressed the view that the provisions of that Act (of course informed by conforming existing principle) now govern procedure in this State: Hans Pet Constructions v Cassar [2009] NSWCA 230; Bi v Mourad [2010] NSWCA 17; Richards v Cornford (No 3) [2010] NSWCA 134; McMahon v John Fairfax Publilcations Pty Ltd [2010] NSWCA 308. It is to be recognised that under the Civil Procedure Act, s 56(3) a party to a civil proceeding is under a statutory duty to assist the court to further the over-riding purpose (in s 56(1)) and to that effect participate in the processes of the court and to comply with directions and orders. To a degree this may be seen as a duty of imperfect obligation, not sounding in damages; but it is a duty nevertheless, and a real one. Significant public resources are devoted to the administration of justice. The Parliament has recognised and expressed the duty of those using the courts (and the resources devoted to them) to act responsibly, honestly and to further the just, quick and cheap resolution of proceedings. This recognition should form the framework of the exercise of power described by Johnson J in Clark . Of course, the power should not be exercised merely to punish a defaulter; of course, risk of significant prejudice should normally be demonstrated; of course, the power should be used sparingly; of course, the power should be used proportionately; but, if grounds are made out otherwise for the exercise of such a power, a recognition of the content and purpose of the statutory duty in s 56(3) assists in the assessment of deciding whether the power should be exercised. The deliberate destruction of discoverable material in knowing defiance of discovery obligations that produces the real risk of impairment to the case of the other side may lead to restrictions on what points litigants can run or to the striking out of all or parts of their claims.

94 Here, the fairness of the trial was put in jeopardy by the deliberate and abusive destruction of evidence central to the case rendering further proceedings unsatisfactory in that they would be unfair and unjust to the respondent. The fairness of the trial and whether it has been put at risk require an evaluation of the potential consequence of the abusive conduct and all the other circumstances. The extent of the evaluation depends on the circumstances. The trial has to be fair to both parties and the order must be just to both parties. It is hardly fair to the defendant to require it to do its best with the evidence it can otherwise muster, in circumstances where the plaintiff, by conduct that was deliberate and an abuse of the Court's process destroys relevant evidence of real significance to the case knowing of her obligations and knowing of the relevance of the material.

95 Here, the legitimate findings of the primary judge more than amply provided a foundation for his orders. On the findings, the applicant deliberately disposed of two phones that contained relevant material of real significance to the propounding of the defence of the respondent. This was brought about by the knowing and deliberate conduct of a plaintiff who comes to court seeking redress. It plainly amounted to an abuse of process. It created a not insignificant risk to the ability of the respondent successfully to propound its defence. The respondent may (without this material) still have been able to do so; but a real and substantial risk was deliberately created by the applicant that could be seen, at least, to impair that defence. Taking into account, in particular, all the considerations in the Civil Procedure Act, ss 56 and 58, like the primary judge, I would strike out imputations 3(a) and (b)(i)."

96 Similar observations were made by Macfarlan JA:

"211 ... The mobile phones that the appellant deliberately destroyed to avoid discovering them could well have provided powerful evidence in support of these particulars.

212 Furthermore I do not consider that the fact that the respondent can be assumed to have some evidence, in fact probably weighty evidence, to support its defence of substantial truth means that it has not been prejudiced by the appellant's destruction of mobile phones that are likely to have contained further evidence to support that defence.

213 The respondent's particulars assert for example that the appellant authored a newspaper article saying that "I don't deny I've had liaisons with many, many footballers" and that she said in a radio interview "I've slept with footballers. You know that has been documented in the media in the past" (Allsop P [9]). Proof that the appellant made these statements and of other admissions that the appellant made on the "Four Corners" programme and its out-takes would no doubt considerably assist the respondent in its defence. However such admissions would by no means be conclusive. The appellant might successfully explain away what she said on the basis that it was, for example, exaggeration. Likewise, it is possible that the unspecific form of such admissions might lead a tribunal of fact to give them little, or even no, weight.

214 The respondent was entitled to the benefit of discovery by the appellant to assist it in establishing its defence. Evidence from the appellant's mobile phones of specific (and possibly numerous) communications involving the organisation by the appellant of sexual liaisons would have considerably assisted the respondent's defence. Arguably such evidence would have far transcended the general admissions that the appellant may have sought to explain or resile from. The contents of the "Four Corners" programme and its out-takes suggest that there was a significant prospect that the mobile phones contained such material prior to their destruction, as does the fact that the appellant deliberately destroyed them in order to avoid having to discover them."

97 Applying those statements of principle, it is hardly fair to the opponent to require it to do its best by relying on adverse inferences and the evidence of the police officer to meet the accusations of the claimant contained in the alleged bribe conversation. The available inferences may well not be conclusive and the claimant might successfully explain away the destruction of the tape. The contest between the opponent and the claimant would then depend which witness was accepted. That cannot be a fair result where the claimant by conduct which was deliberate and an abuse of the court's process, destroys relevant evidence of real significance to the case, knowing his obligations and knowing of the relevance of the material.

98 To the extent that it is necessary (there having been no challenge in terms to that part of the judgment of Johnson J striking out the first of the three claims in the Further Amended Statement of Claim), I find no error in his Honour's statement of principle, his fact finding, his application of principle to the facts and the exercise of his discretion on that issue. His Honour's order dismissing the balance of the Further Amended Statement of Claim, however, is in a different category. This order was expressly challenged by the amicus and the claimant.

99 I have concluded that in his exercise of the discretionary power to dismiss the balance of the Further Amended Statement of Claim, his Honour fell into error. That being so, it is open to this Court to re-exercise that discretionary power. In doing so, I have reached a different conclusion in that I would not dismiss those causes of action which rely upon the events of 21 and 29 February 2000. My reasons are as follows.

100 His Honour's reasons for dismissing those parts of the Further Amended Statement of Claim were:

"153 I have considered, as an alternative, an order staying or dismissing the first proceedings relating to the 1997 arrest and prosecution. It is in the context of that arrest that the alleged conversation occurred. I do not consider that this approach is appropriate in the unusual circumstances of this case. The case advanced by the Plaintiff suggests an inextricable link between the three sets of proceedings. I do not accept the submissions for the Plaintiff that, in some way, the second and third set of proceedings can proceed justly to a fair trial."

101 It is clear that, at the time the matter came before Wood CJ at CL on 12 October 2004, the claimant and his legal advisers intended to conduct the proceedings on the basis that all three claims were linked. The claimant's premise was that the charges brought against him in February 2000 had the improper purpose of discouraging or preventing him from using the tape and making his bribery allegations against Senior Constable Cusack in respect of the events of 1997.

102 While that may have been the intention of the claimant and of his legal advisers at that time, it is apparent from the Further Amended Statement of Claim that each of the three causes of action in it have been separately pleaded and particularised. As pleadings they are discrete and stand independently one from the other. They are only linked by two particulars of the claim for abuse of process at par 35(b) and (c). Those paragraphs provide:

"35 ... Particulars of improper object.

...

(b) Utilising the criminal process in an effort to conceal the earlier improper investigations against the plaintiff.

(c) Utilising the criminal process in order to conceal improper conduct on the part of the police officer."

With the exception of those two particulars of abuse of process, the three causes of action in the Further Amended Statement of Claim stand alone.

103 Before Johnson J, counsel for the claimant put the submission as follows:

"135 To emphasise the different and discrete nature of the three proceedings, Ms McManus submitted that if the Plaintiff proved the bribe allegation, it would not follow that he would have then established his case in relation to the other incidents. Likewise, if the tape had been proved to be false or not the voice of Senior Constable Cusack, it was submitted that this would be relevant to the Plaintiff's credibility and undermine his version of the bribe, but it would not necessarily follow that his claim with respect to the second and third incidents would fail. If it could not be established whether the tape was genuine or false, then the case would fall to be determined upon the basis of the oral evidence of one witness against the other."

104 If as I have found, his Honour was correct in dismissing the first claim in the Further Amended Statement of Claim, it is useful to consider how the other two causes of action would be presented if they were allowed to continue. Without the contents of the tape, and with no claim being made in respect of the 1997 charges, it would be surprising if the claimant in pursuing the second and third causes of action made any mention of the bribery allegation or those earlier charges. What might have seemed to be a clever tactical approach when all three causes of action were being run and when it was believed the tape would be available, becomes a far different proposition in the absence of the tape. Without the contents of the tape, the only link between the three causes of action would be the claimant's unsupported assertions as to a police conspiracy.

105 The opponent would certainly not be suggesting any link between the three causes of action. One could confidently anticipate that the destruction of the tape might well be used by the opponent to attack the claimant's credit, but not as providing some inexplicable link between the 1997 charges and the remaining causes of action.

106 It follows that only limited weight should be given to the submissions by Mr Steirn SC in October 2004 about how the claimant's case was going to be put. Those submissions were made when it was anticipated that all three causes of action could be pursued. The situation is quite different if the first cause of action is dismissed and only the second and third can continue.

107 The error on the part of his Honour was his assumption that the link which was asserted to exist between all three causes of action by Mr Steirn SC at a time when all three causes of action were being pursued, would continue to exist if the first cause of action could not be pursued and the tape became unavailable. In those circumstances, the only link between the causes of action would be if the claimant gave evidence as to a larger police conspiracy against him. In the absence of the tape, it was by no means certain that the claimant would give such evidence or run his case in that way.

108 Keeping in mind that when an abuse of process has occurred, a proportionate response should be made by the Court and keeping in mind the reluctance of the Court to prevent a claim being determined on its merits, I am not satisfied on a re-exercise of the discretion that there was sufficient evidence before his Honour to establish the "inextricable link" to justify dismissing the whole Further Amended Statement of Claim. In the re-exercise of the discretion, I would confirm the dismissal of that part of the Further Amended Statement of Claim which related to the charges brought in 1997 but would allow the causes of action based on the charges brought in February 2000 to continue.

109 For the above reasons, the orders which I would make are as follows:

(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.

110 TOBIAS AJA: I agree with the orders proposed by Hoeben JA for the reasons he has expressed.

**********

Decision last updated: 23 May 2012