Flowers v State of New South Wales (No 3)

[2021] NSWSC 418

Supreme Court

New South Wales

Medium Neutral Citation:

Flowers v State of New South Wales (No 3) [2021] NSWSC 418

Hearing dates:

22-26, 29 March, 14, 23 April 2021

Decision date:

23 April 2021

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

Application by the Plaintiff for the defendants to supply certain contact details refused.

Catchwords:

CIVIL PROCEDURE – direction sought for provision of contact details of witnesses subject to unserved subpoenas – tantamount to preliminary discovery – very late in proceedings – no worthwhile purpose in provision on material before the Court – application refused

Legislation Cited:

Supreme Court Act 1970 (NSW), s 23

Cases Cited:

Malouf v Malouf (2006) 65 NSWLR 449; [2006] NSWCA 83

Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:
Self Represented (Plaintiff/Applicant)
A Williams (Defendant/Respondent)

Solicitors:
Self Represented (Plaintiff/Applicant)
McCabe Curwood (Defendant/Respondent)

File Number(s):

2019/117371

EX TEMPORE Judgment

1. HIS HONOUR: Before the Court is an application, by the plaintiff, that the defendant supply to the plaintiff the last address and contact details of two persons whom the defendant has been unable to contact. The material before the Court and the background to this application can be stated briefly.

2. The plaintiff, Mr Flowers, proceeds against the State of New South Wales in its representative capacity on the basis that persons for whom the State of New South Wales is responsible and or liable, legally, have acted in a way which amounts to malicious prosecution or claims of a similar kind. In the course of the proceedings, the plaintiff, who is self-represented, has sought to obtain subpoenas directed at certain police officers. Subpoenas have also been sought against a number of politicians and other, more senior, persons in the police force.

3. The subpoenas, which the Court granted leave to serve, were sought in relation to eight persons who are persons who were, at the time of the conduct that is said to amount to a malicious prosecution, police officers working at Bathurst either as the prosecutor or in the ordinary duties of police. The Court had inquired of the defendant as to whether such persons could be made available for cross-examination. One person who was, it seems, relatively central to the proceedings and/or allegations that are made was, in fact, called by the defendant; the other eight are the prosecutor and other police officers.

4. Of the eight witnesses in relation to whom the plaintiff was granted leave to serve subpoenas. Three of those persons are no longer serving police officers; one of them has been made available by the State in any event; and the other two have not been located and are not to be made available. Nothing I have said in the forgoing is either a criticism of the plaintiff or indeed the defendant.

5. A solicitor, on the record, has informed the Court and the plaintiff that in relation to the two former officers who are unavailable, being officers Chrome and Cosgrove, that inquiries have been made by reference to the contact details in the possession of the State of New South Wales and despite an inquiry agent being engaged, they have been unable to be contacted or located.

6. The issue that is now before the Court relates to those two former officers of the police force. As earlier stated, leave has been granted, to the extent that it is of any use, to issue short service of subpoenas on the two persons, formerly officers of the police force. The State of New South Wales objects to a direction that it provide the last known contact details of those two persons to the plaintiff.

7. The Court has the capacity, pursuant to s 23 of the Supreme Court Act 1970 (NSW) (hereinafter “the Act”) and pursuant to its inherent jurisdiction, to do all that is necessary for the administration of justice in the State.

8. What is “necessary” has to be understood in the sense defined by the High Court in Pelechowski v Registrar of the Court of Appeal, [1] relying, as it does, on comments of the House of Lords; it does not mean essential. Nevertheless, the matter has been before the Court now for some period. The efforts of the State of New South Wales to obtain the witnesses that the plaintiff seeks should not be in the least bit criticised, as earlier stated. The difficulty I have is that there are significant privacy issues associated with a former employer, assuming for present purposes that the State of New South Wales is the former employer of police officers, providing contact details of two of its former employees to persons for the purpose of subpoenaing those persons. Ultimately, the exercise of the discretion of the Court must be subject to the primary purpose of the Act, which is to facilitate the just, quick and cheap resolution of the real issues between the parties.

   1. (1999) 198 CLR 435; [1999] HCA 19.

9. It seems to me that the capacity to cross-examine the witness called by the defendant already and the capacity to cross-examine the six witnesses that have been made available as consequence of the request by the Court, by the State of New South Wales, would go a significant way in dealing with the issues that the plaintiff seeks to deal with. I am not suggesting that the cross-examination will be productive of evidence which supports the case that is sought to be agitated by the plaintiff. That ultimately is a matter for the plaintiff and the witnesses. It does not seem to me that the two persons who are not currently available would add significant probative material over the six that are to be cross-examined. Further, it seems to me that the complaint by the plaintiff is a complaint born of a misunderstanding of the role of the Court and the defendant in providing witnesses of the plaintiff’s choosing.

10. I am reminded of the comments of a judge of appeal, His Honour Justice Bryson in Malouf v Malouf,[2] where his Honour, Bryson JA, stated:

“Courts should not go so far in accommodating the positions of unrepresented litigants as to make it an advantageous procedural step to dismiss one’s lawyers or to retain none. Nor should Courts slip from unreadiness to shut a party out from litigating an issue which is fairly arguable into incapacity to close off procedural opportunities which are not taken. Without procedure, procedural directions and compliance, justice will not be done at all. The time, patience, resources and willingness to behave appropriately of those who do comply should have a place in consideration of what the Court should do when a party who has not complied with earlier direction seeks an extension of time or some procedural indulgence by which earlier directions are disregarded.” [3]

2. (2006) 65 NSWLR 449; [2006] NSWCA 83.

3. Ibid, at [183].

11. I cannot say, and I do not take into account any non-compliance with earlier directions by Mr Flowers; frankly, I do not recall whether there has been any non-compliance. I do, however, take the view at this point that requiring the defendant to provide the names and contact details of the two persons whom, on the material before the Court, they have tried, perhaps even beyond what is reasonable, to locate, is accommodating the plaintiff, and the fact that he is unrepresented in a manner that would never be done, for anyone who was represented, and who was before the Court otherwise. It would be an extraordinary use of the Court’s corrective power to require the release of confidential information of that kind, and in all of the circumstances, I do not consider even if it were provided it would be of much use to anybody. I say that because on the material before the Court, the provision of the contact details which were available to the defendant, would not result in the plaintiff contacting the two witnesses. The plaintiff will have the same problems that the defendant had, and, in those circumstances, I do not make the direction to provide the plaintiff with the contact details.

12. There are two other factors that the Court otherwise considers relevant. They are that: this is in essence a form of preliminary discovery; and the proceedings are shortly due to conclude and had been fixed last October, for the first application of this kind is after the first week of hearing, for which the proceedings were listed, on the plaintiff’s estimate, to be concluded. Ultimately, however, given the material before the Court, I do not see any utility in the provision of the contact details.

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Endnotes

Decision last updated: 26 April 2021