Flowers v State of New South Wales

[2021] NSWSC 691

Supreme Court

New South Wales

Medium Neutral Citation:

Flowers v State of New South Wales [2021] NSWSC 691

Hearing dates:

11 June 2021

Date of orders:

11 June 2021

Decision date:

11 June 2021

Jurisdiction:

Common Law

Before:

Harrison J

Decision:

(1)   Dismiss the notice of motion.

(2)   Order that Mr Flowers pay the defendant’s costs of the motion.

Catchwords:

NOTICE OF MOTION – whether closed file should be reopened – whether default judgment should be brought immediately against defendant for failure to file defence in timely manner – where plaintiff’s notice of motion is misconceived and without any merit – where plaintiff’s claim for any relief is not made out

Cases Cited:

Flowers v State of New South Wales [2019] NSWSC 1467

Category:

Procedural rulings

Parties:

Mark Stephen Flowers (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
K Curry (Defendant)

Solicitors:
McCabe Curwood (Defendant)

File Number(s):

2019/117371

Publication restriction:

Nil

EX TEMPORE Judgment

1. HIS HONOUR: Mark Stephen Flowers moves on a notice of motion filed in this Court on 14 May 2021. For abundant caution I note that the proceedings in which that motion has been filed is case number 2019/00117371. By his notice of motion, Mr Flowers seeks the following orders:

“1. THAT, the closed file without judgement BE REOPENED immediately re ‘Statement of Claim and Affidavit 2018/348865 filed on the 15/4/2019 at the Supreme Court of NSW at address 184 Phillip St Sydney NSW 2000.

2. THAT, DEFAULT JUDGEMENT be brought immediately against the ‘defendant State of NSW’ for failure to file defence within the 28 day rule to the plaintiffs 15/4/2019 Statement of Claim and Affidavit filed and served as {one 241 page bound document} served in person by the plaintiff to, McCabe 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.

3. THAT, the defendant State of NSW be ordered to pay the full relief claimed in the Plaintiffs Statement of claim 15/4/2019 and additional cost to be calculated for the ‘25 months of defendant failure to defend Plaintiffs Statement of Claim Affidavit 2018/348865 to from 16/4/2019 to the date of this Notice of Motion.”

2. That motion is supported by Mr Flowers’ affidavit sworn on 14 May 2021 and filed on the same day. I have read that affidavit and I have had regard to the documents annexed to it.

3. I note in passing that at least one of the annexures to Mr Flowers’ affidavit is a judgment published by me on 23 October 2019: Flowers v State of New South Wales [2019] NSWSC 1467. I am reminded by reference to that decision, as well as by reference to the submissions made by Mr Flowers today, that on that occasion I struck out an amended statement of claim and granted liberty to Mr Flowers effectively to re-plead if so advised.

4. In response to the notice of motion, the defendant reads two affidavits of Amanda Jane Kmetyk affirmed respectively on 27 May and 7 June this year. Mr Flowers objected to the affidavits on two bases. First, that the material deposed to by Ms Kmetyk amounted to submissions and ought not to be considered by me for that reason. Secondly, that the matters deposed to in Ms Kmetyk’s affidavits were wrong or, if I correctly understand Mr Flowers’ contentions about it, that they were untruthful. Despite the latter contention, Mr Flowers declined my offer of an opportunity to cross-examine Ms Kmetyk.

5. I have read those affidavits in response to the notice of motion. The Court transcript of proceedings today will also record that Mr Flowers made extensive submissions in support of the relief which he claims in the notice of motion.

6. Despite the terms of Mr Flowers’ affidavit, to which as I have indicated I have had regard, and with the benefit of his submissions in court today, it is obvious that Mr Flowers’ current notice of motion is misconceived. Without intending to indicate offence, nothing Mr Flowers has said to me today is even remotely comprehensible in the context of the relief that he seeks.

7. Mr Flowers has been before me on several occasions in these and presumably other proceedings filed by him. The transcript from those occasions, I trust, will bear witness to the fact that I have attempted on all of them to do my best to assist him with what I understood to be his major complaint, that is to say, that he was maliciously prosecuted by the State, and to get him to the point where that contention could be heard by a judge of this Court.

8. Those proceedings came before Rothman J earlier this year and, as far as I am aware from the Court files, they have either reached the stage where Rothman J has reserved his decision or are at the point where he awaits further submissions from the parties.

9. Better minds than mine may have less difficulty following what it is that Mr Flowers wishes to propound. Unfortunately my capacities do not enable me to understand the force or effect of anything that he has said. In the scheme of litigation commonly conducted in this Court, Mr Flowers’ notice of motion is entirely without any merit.

10. In my view, Mr Flowers has not made out a claim for any relief of the sort he seeks in the notice of motion or at all. Accordingly, I make the following orders:

1. Dismiss the notice of motion.

2. Order that Mr Flowers pay the defendant’s costs of the motion.

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Decision last updated: 15 December 2021