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Court of Criminal Appeal 14 April 2021

Clark v R (No 4)

[2021] NSWCCA 67

Other
CRIME APPEALS FURTHER VEXATIOUS APPLICATION NO ISSUE OF PRINCIPLE

Citation: Clark v R (No 4) [2021] NSWCCA 67
Court: NSW Court of Criminal Appeal
Date: 14 April 2021
Judge(s): Payne JA; Johnson J; Wilson J

Background

The applicant had previously sought to challenge a judgment of the Court of Criminal Appeal handed down earlier in 2021: Clark v R [2021] NSWCCA 8. He had already made two prior applications under r 50C of the Criminal Appeal Rules (NSW) seeking to set aside the orders in that matter, both of which were dismissed: Clark v R (No 2) [2021] NSWCCA 48 and Clark v R (No 3) [2021] NSWCCA 64.

On 12 April 2021, the applicant filed a third notice of motion under r 50C, again seeking orders setting aside the original judgment. Rule 50C provides a mechanism for a party to apply to set aside judgments and orders of the Court of Criminal Appeal in defined circumstances.

This fourth decision in the series dealt solely with that third r 50C application and whether it could proceed.

  • Whether the applicant should be granted leave to apply under r 50C of the Criminal Appeal Rules to set aside the earlier judgment in Clark v R [2021] NSWCCA 8
  • Whether the application was vexatious in light of the two prior dismissed applications raising the same or similar grounds

Decision

The Court declined to grant leave and dismissed the notice of motion. It relied on the reasoning already set out in Clark v R (No 2) and Clark v R (No 3), finding no basis to depart from those conclusions.

The Court characterised the application as vexatious. This is a significant procedural finding: an application is treated as vexatious when it is brought without reasonable grounds, repeats arguments already rejected, or otherwise amounts to an abuse of the court's process. The Court did not elaborate further, treating the point as settled by its earlier decisions in the series.

The decision is brief and contains no new issue of principle. It confirms that the Court will not permit successive r 50C applications to relitigate the same question once the matter has been conclusively determined.

Orders Made

  • Leave to apply to set aside the orders of the Court under r 50C of the Criminal Appeal Rules is refused
  • The notice of motion dated 12 April 2021 is dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that successive applications under r 50C of the Criminal Appeal Rules seeking to set aside the same judgment will be treated as vexatious where the grounds have already been considered and rejected.
  • Refusal of leave under r 50C operates as a bar to the application proceeding: the applicant cannot reach the substantive question of whether the earlier orders should be set aside.
  • A finding that an application is vexatious reflects the court's assessment that the repeated filing amounts to an abuse of process, not merely an unsuccessful argument on the merits.
  • This decision raises no new issue of principle and is significant only as a procedural endpoint to a series of four decisions arising from the same original judgment.
  • No further reasoning was provided beyond reference to the earlier decisions in the series, indicating that the Court regarded the position as already comprehensively addressed.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Rules (NSW), r 50C

Cases:
- Clark v R [2021] NSWCCA 8
- Clark v R (No 2) [2021] NSWCCA 48
- Clark v R (No 3) [2021] NSWCCA 64