Flowers, In the matter of an application for leave to issue or file

[2022] HCATrans 219

[2022] HCATrans 219

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S141 of 2022

In the matter of -

an application by MARK STEPHEN FLOWERS for leave to issue or file

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 14 DECEMBER 2022, AT 9.16 AM

Copyright in the High Court of Australia

HIS HONOUR:   By application filed 2 November 2022, the applicant seeks leave to issue or file an application for a writ of mandamus. For the reasons I now publish and pursuant to rule 13.03.1 of the High Court Rules, I would refuse the application for leave to issue or file without listing it for hearing.

The order is:

1.The application for leave to issue or file be refused. 

I publish that order.  I direct that the reasons as published be incorporated into the transcript.

On 21 September 2022, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), Gleeson J directed the Registrar to refuse to issue or file a purported application by Mr Flowers for a writ of mandamus from this Court without the leave of a Justice first had and obtained by Mr Flowers. Mr Flowers now seeks that leave.

The proposed writ of mandamus sought by Mr Flowers is, in the terms quoted below, for this Court to make orders as follows:

“Order one THAT High Court of Australia order Supreme Court of NSW Chief Justice Andrew Bell to administer an immediate action of ‘Default Judgement’ against State of NSW in matter of ‘Mark Stephen Flowers V State of NSW’ file number 2018 / 348865 filed SC NSW 15th April 2019. Default Judgment being for State NSW failure to file defence within 28 day rule to plaintiffs 15/4/2019 Statement of Claim and Affidavit filed and served by the plaintiff to, Mc Cabe Curwood Sydney Level 38, MLC Centre, 19 Martin Place, Sydney NSW And to the Crown Solicitors Office Level 4/60‑70 Elizabeth St, Sydney NSW 2000 on the 16th of April 2019.

Order two THAT High Court of Australia order Supreme Court of NSW Chief Justice Andrew Bell, to order State of NSW to pay full relief claimed in Plaintiffs Statement of claim 15/4/2019 and additional costs to be calculated for the “36 months of State of NSW failure to file a defence to Plaintiffs Statement of Claim Affidavit 2018 / 348865 within the 28 day rule from service date being 16/4/2019.  Additional costs from 23/5/2019 to date of this application 17/9/2022 or extended.”

The affidavits (one of which is expressed as being in support of the proposed writ of mandamus and one of which is in support of this application for leave to issue or file) and submissions of Mr Flowers in support of this application are difficult to understand.  They appear to include allegations that because the State of New South Wales did not file a defence to his claim within 28 days, it was in default and, since the State must follow the same rules as any citizen, a writ of mandamus in the terms above should issue to the Chief Justice of New South Wales.  Despite the independence of the judiciary, Mr Flowers also alleges that since the matter is “against the crown, the crown can not judge this matter, no one can judge their own cause”.  It is not clear, and not explained, how this submission could lead to the consequence of the orders sought in the writ of mandamus to compel the Chief Justice of New South Wales to make orders against the State of New South Wales.

It appears that Mr Flowers is also concerned with the exercise of power by this Court in his matter.  In his affidavit material he says that this Court “must not use any further discretion in this matter, as [this Court] is an agent of the Crown and this matter is against the Crown”.  Possibly as an alternative, he submits that this Court should provide for trial by jury of the matters he seeks to ventilate.

Mr Flowers also says that he brought a recusal motion before a Justice of the Supreme Court of New South Wales who was “responsible for the plaintiffs main evidence file for Malicious Prosecution becoming a ‘closed file without judgement’ leading to ... Default Judgement being sought via the plaintiffs Writ of Mandamus”.  Mr Flowers’ complaint appears to be that the Supreme Court judge did not provide a judgment on the recusal motion and, a year later, heard Mr Flowers’ “Default Motion 14/5/2021 with major complaints against [the Supreme Court judge]”.

Mr Flowers raises other matters in his proposed application including an allegation that the Supreme Court of New South Wales committed a “crime of creating a ‘false official instrument’” by closing a file without judgment in an action that Mr Flowers had commenced.

I have no doubt from reading all of Mr Flowers’ affidavit evidence and submissions that he has a powerfully held sense of grievance and that he feels that he has not been afforded justice by the Supreme Court of New South Wales and perhaps also by this Court.  That sense of grievance and injustice is, no doubt, exacerbated by the powerlessness that he, like many other unrepresented litigants, has felt in the difficult process of trying to translate his experiences and emotional sense of grievance into the legal form of a claim.  Those difficulties remain a substantial obstacle to access to justice for many unrepresented litigants.  Nevertheless, even reading Mr Flowers’ material as generously as possible, his application, on its face, is incapable of legal argument or (since, at least literally, nothing is truly incapable of legal argument) manifestly hopeless[1]. For that reason, on this application under r 6.07.3 of the High Court Rules, leave to issue or file should be refused[2].

[1]    Citta Hobart Pty Ltd v Cawthorn (2022) 96 ALJR 476 at 486‑487 [35], 494 [73]; 400 ALR 1 at 10, 20.

[2]Re Young (2020) 94 ALJR 448 at 451 [11]‑[12]; 376 ALR 567 at 570.

Pursuant to r 13.03.1 of the High Court Rules, Mr Flowers’ application for leave to issue or file should be determined without listing it for hearing. The application should be dismissed.

AT 9.17 AM THE MATTER WAS CONCLUDED