Flowers v State of New South Wales

[2022] NSWCA 29

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Flowers v State of New South Wales [2022] NSWCA 29

Hearing dates:

24 February 2022

Date of orders:

2 March 2022

Decision date:

02 March 2022

Before:

Beech-Jones JA

Decision:

Beech-Jones JA declines to disqualify himself

Catchwords:

APPREHENED BIAS – previous dismissal of motion in proceedings at first instance – no question of principle

Cases Cited:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Flowers v State of New South Wales, (Supreme Court, 29 July 2021, unrep)

Flowers v State of New South Wales [2022] NSWCA 28

Category:

Consequential orders

Parties:

Mark Stephen Flowers (Applicant)
State of New South Wales (Respondent)

Representation:

Counsel:
Applicant self-represented
Mr N Newton (Respondent)

Solicitors:
McCabes Lawyers (Respondent)

File Number(s):

2021/240205

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2021] NSWSC 887

Date of Decision:

22 July 2021

Before:

Rothman J

File Number(s):

2019/117371

Judgment

1. BEECH-JONES JA: In an email sent to the Court on the day prior to judgment being delivered, Mr Flowers applied for me to disqualify myself on the basis that I had previously dismissed a notice of motion filed by him in the proceedings at first instance (Mark Stephen Flowers v State of New South Wales, 29 July 2021, unrep).

2. The governing principle applicable to an application to a judge to disqualify themselves is that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; “Ebner”). Whether this test is satisfied is to be determined by a two-stage test, namely (Ebner at [8]):

“First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”

3. The notice of motion that I dismissed was filed by Mr Flowers on 8 June 2021. This was after the primary judge had reserved his decision. It was dismissed after judgment was delivered. The relevant part of the notice of motion sought the filing of “criminal charges” against the counsel and solicitor who had appeared for the State of New South Wales at first instance. I rejected that part of the motion for the following reasons:

“This court does not, by way of notice of motion or otherwise, in civil proceedings direct that criminal charges be brought against anyone. Save for very limited circumstances involving allegations of contempt of court, the decision to file criminal charges is in the ordinary course made by the Director of Public Prosecutions. In some cases, they can be initiated in accordance with the Criminal Procedure Act by way of private prosecution. They are not done by notices of motion.”

4. As is explained in this Court’s judgment, in his appeal Mr Flowers sought to adduce fresh evidence by subpoenaing the counsel and solicitor who appeared for the State at first instance to question them about their alleged “concealment” of certain matters (Flowers v State of New South Wales [2022] NSWCA 28 at [53]). Nothing in the above reasons for dismissing Mr Flowers’ notice of motion bears upon the Court’s assessment of that aspect of his appeal or otherwise addresses the merits or otherwise of his complaints about the conduct of the two practitioners in question. Instead, this aspect of his motion was dismissed because the nature of the relief sought, namely an order from the Court for the filing of criminal charges, was impermissible. It follows that there is no logical connection between my dismissal of the notice of motion and any possible deviation by me from deciding Mr Flowers’ appeal according to its legal and factual merits. My dismissal of the notice of motion does not provide any reason upon which the fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions arising on Mr Flowers’ appeal.

5. I decline to disqualify myself.

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Decision last updated: 07 March 2022