Flowers v State of NSW

Case •

[2020] NSWSC 1390

•

14 October 2020

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Flowers v State of NSW [2020] NSWSC 1390
Hearing dates: 6 October 2020
Date of orders: 14 October 2020
Decision date: 14 October 2020
Jurisdiction:Common Law
Before: Bellew J
Decision:

(1) The notice of motion filed by the plaintiff on 11 September 2020 is dismissed.

(2) I reserve the question of costs.

(3) I direct each party to provide written submissions as to the appropriate order as to costs within 7 days, such submissions not to exceed two pages in length.

(4) I list the matter for directions before the Registrar on 21 October 2020.

Catchwords:

PRACTICE AND PROCEDURE – Pleadings –Application for leave to further amend statement of claim – Where proceedings had a long history of previous applications – Where further amended statement of claim did not properly plead a cause of action – Where further amended statement of claim was embarrassing – Where there was no explanation for delay in bringing the application – Application refused

Legislation Cited:

Civil Procedure Act2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Flowers v State New South Wales [2019] NSWSC 1308

Flowers v State of NSW [2019] NSWSC 1467

Flowers v State of NSW [2020] NSWSC 526

Flowers v State of NSW [2020] NSWSC 883

Gunns Limited v Marr [2005] VSC 251

Category:Procedural and other rulings
Parties: Mark Stephen Flowers – Plaintiff
State of NSW – Defendant
Representation:

Counsel:
Self-represented – Plaintiff
A Williams – Defendant

Solicitors:
Self-represented – Plaintiff
McCabe Curwood Lawyers – Defendant
File Number(s): 2019/117371
Publication restriction: Nil

Judgment

  1. By a notice of motion filed on 11 September 2020 the plaintiff seeks an order pleaded in the following terms:

That leave be granted to file a further amended Statement of Claim the actual marked up version provided to State of NSW and Supreme Court NSW that exact document is the plaintiffs claim, it will not require any further amendment.

  1. The notice of motion was supported by an affidavit of the plaintiff dated 7 September 2020. Counsel for the defendant objected to the entirety of that affidavit, largely (although not exclusively) as to form. However, counsel did not object to the affidavit being treated as encapsulating the plaintiff's submissions in support of the motion, and I have proceeded on that basis.

  2. The proposed further amended statement of claim referred to in the motion was not annexed to the plaintiff's affidavit. However, so that there would not be any doubt about the identification of that document, a copy of it was marked as exhibit A on the motion.

Background – the procedural history

  1. The proceedings brought by the plaintiff have a lengthy history. They have been before Harrison J on a number of occasions for the purposes of determining various interlocutory applications. In order to put the present notice of motion in its proper context, it is necessary for me, firstly, to set out my understanding of the nature of the case that the plaintiff seeks to bring against the defendant, and secondly, to make reference to some of the previous applications which have been heard and determined by Harrison J.

  2. On 26 September 2019 Harrison J heard a motion brought by the defendant to strike out an amended statement of claim which had been filed by the plaintiff on 27 May 2019, along with a notice of motion filed by the plaintiff seeking that his Honour “recuse himself … for want of jurisdiction”. [1] Ultimately, his Honour dealt with those motions by making orders (inter alia) directing the plaintiff to provide further and better particulars of the (then) amended statement of claim to the defendant. [2] In the course of doing so, and by way of background, his Honour said the following in terms of the plaintiff’s proposed cause of action: [3]

7. On 14 March 2016, Mr Flowers was in a vehicle driving from his property near Bathurst. He became involved in an incident with his then neighbour Mr Frost. As a result of a report of this incident to the police, Mr Flowers was charged with assault occasioning actual bodily harm and negligent driving. In due course, these matters came before Magistrate Allen sitting in the Bathurst Local Court on 26 April 2017. Following a hearing, his Honour dismissed the assault charge but found the negligent driving charge to have been proved. However, with respect to that charge, his Honour dismissed the matter without proceeding to record a conviction.

8. Mr Flowers’ amended statement of claim refers to this incident and on one available view makes it tolerably clear that he wishes to contend that the proceedings against him were instituted and maintained without reasonable or probable cause and maliciously. For example, the amended statement of claim refers in terms to malicious prosecution and to other matters that could arguably be understood as particulars of malice. Unfortunately, not only does the amended statement of claim not do this in clear terms, it is burdened with a raft of other confusing and embarrassing allegations that push it into the sphere of incomprehensibility, if not incoherence. For example, but without being exhaustive, the document refers to “human rights violations”, the International Declaration on Human Rights, freedom from torture and degrading treatment and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, among other things.

9. Mr Flowers has made it perfectly clear to me that he has had an unfortunate association with the New South Wales Police that goes back more than a decade. It is unnecessary to elaborate upon the details of that association beyond recording my understanding that Mr Flowers entertains a sense of grievance at the way he has been treated. I am unable to comment upon that perception beyond observing that it has obviously infiltrated Mr Flowers’ emotional response to the events of 14 March 2016 which would appear in turn to have found voice in the terms of his pleading.

1. Flowers v State New South Wales [2019] NSWSC 1308 at [1].

2. At [17].

3. At [7]-[9].

  1. Following the making of the orders to which I previously referred, the proceedings came before Harrison J again on 23 October 2019, when his Honour made orders striking out the plaintiff's amended statement of claim filed on 27 May 2019, but granting leave to the plaintiff to file and serve any proposed further amended statement of claim upon which he intended to rely. [4] Following the making of those orders, the plaintiff filed a further amended statement of claim on 15 November 2019. A defence was filed to that statement of claim on 26 February 2020. The present motion was filed by the plaintiff approximately 7 months following the filing of that defence. No explanation for the delay in bringing the motion has been forthcoming.

    4. Flowers v State of NSW [2019] NSWSC 1467.

  2. On 8 May 2020, the proceedings came before Harrison J to determine an application brought by the plaintiff that his claim for damages be heard by a jury. That application was refused with costs. [5]

    5. Flowers v State of NSW [2020] NSWSC 526.

  3. On 2 July 2020 the matter again came before his Honour, this time to hear an application brought by the plaintiff that his Honour “recuse [himself] as having any authority to determine any issues of law or fact in these proceedings". That application was refused,[6] his Honour concluding that the plaintiff's application was “misconceived". [7] His Honour again declined to order that the proceedings be heard by a jury. [8]

    6. Flowers v State of NSW [2020] NSWSC 883.

    7. At [4].

    8. At [9].

THE APPLICABLE LEGISLATIVE PROVISIONS

  1. There are a number of legislative provisions which bear upon the present motion.

  2. To begin with, s 64 of the Civil Procedure Act2005 (NSW) (the CPA) is in the following terms:

64 – Amendment of documents generally

(1) At any stage of proceedings, the court may order--

(a) that any document in the proceedings be amended, or

(b) that leave be granted to a party to amend any document in the proceedings.

(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.

(4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party.

(5) This section does not apply to the amendment of a judgment, order or certificate.

  1. The power of the Court to allow an amendment is subject to other provisions of the CPA, notably sections 56 and 58. Section 56 is in the following terms:

56 Overriding purpose   

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

(4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3)--

(a) any solicitor or barrister representing the party in the proceedings,

(b) any person with a relevant interest in the proceedings commenced by the party.

(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.

(6) For the purposes of this section, a person has a
"relevant interest" in civil proceedings if the person--

(a) provides financial assistance or other assistance to any party to the proceedings, and

(b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings.

  1. Section 58 is in the following terms:

58 Court to follow dictates of justice

(1) In deciding—

(a) whether to make any order or direction for the management of proceedings, including—

(i) any order for the amendment of a document, and

(ii) any order granting an adjournment or stay of proceedings, and

(iii) any other order of a procedural nature, and

(iv) any direction under Division 2, and

(b) the terms in which any such order or direction is to be made,

the court must seek to act in accordance with the dictates of justice.

(2) For the purpose of determining what are the dictates of justice in a particular case, the court—

(a) must have regard to the provisions of sections 56 and 57, and

(b) may have regard to the following matters to the extent to which it considers them relevant—

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.

  1. Section 59 of the CPA is in the following terms:

59 Elimination of delay

In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial.

  1. In addition, rule 19.5 of the Uniform Civil Procedure Rules 2005 (NSW) is in the following terms:

19.5 Mode of amendment generally

(1) Subject to any directions referred to in rule 19.6, amendments to a filed document must be made by filing a fresh document that has been amended in accordance with these rules or pursuant to an order of the court.

(2) The amendments must be indicated as follows--

(a) the omission of existing matter must be indicated in such manner (such as striking through the matter, with or without underlining) as does not affect the legibility of the matter being omitted, and

(b) the insertion of new matter must be indicated in such manner (such as the use of underlining, bolding or italics) as distinguishes it from existing matter (including existing matter to be omitted).

(3) A document amended under this rule must be marked with the following particulars--

(a) the date of the amendment,

(b) if the amendment is made pursuant to an order of the court, the date of the order,

(c) if the amendment is made otherwise than pursuant to an order of the court, a reference to the provision of these rules that authorises the amendment,

(d) the manner in which the omission and insertion of matter have been indicated in the amended document.

(4) An amended document must retain the existing paragraph numbering, with any additional paragraphs that are inserted after an existing paragraph bearing the number of that paragraph together with the letters "A", "B" and so on, as in these rules.

THE PROPOSED FURTHER AMENDED STATEMENT OF CLAIM

  1. Annexed to the defendant's submissions was the following table which demonstrates the differences between the amended statement of claim which is presently on foot, and that upon which the plaintiff now seeks to rely.

Paragraph (New claim)

Original text

Amended text

Type of claim

(Amendments are in addition to original text)

Torture, concealment, defamation, miscarriage of justice, abuse of process

Relief claimed

(Added to original text)

Cost

Pleadings and particulars

Added

All evidence relating to the above defendant was filed in the Supreme Court of NSW on the 20/1/20 re State Particulars Request 29 questions answered filed! And 20/10/19 re State Particulars Request 53 questions answered filed! As well as main evidence affidavit 2018 / 348865 filed 15th April 20198 since wrongly closed file abuse of process.

[3] line 3-6

Added

As per acknowledgement of such harm in 12th February 14 State of New South Wales consent judgement 2009 /332550.

4

Added

Mistrial full acquittal must be administered to Mark Stephen Flowers Bathurst Local Court re ,26 April 2017 wrong finding > H62492967 order 2016 /00237698-001 and 2016 / 00237698-002 this 2nd order number Negligent Driving guilty finding must be corrected to a Not Guilty finding due to miscarriage of justice mistrial Perversion of the Course.

4A

Added

On the 26th of April 2017 in Bathurst Local Court Judge Allen presiding matter of Bathurst NSW Police v Mark Stephen Flowers , a Miscarriage of Justice occurred . a perversion of the Course of Justice was underway this must qualify for a Mistrial against Mark Stephen Flowers whom was the defendant at the time.

4B

Added

Judge Allen had False Instrument before him , false NSW Police records {NCC ref no 193010-124233} that NSW Police have since 18th January 2007 been maliciously using false records false instruments against plaintiff Mr Flowers in current Supreme Court matter 2019 / 117371.

4C

Added

At hearing 26th of April 2017 in Bathurst Local Court Judge Allen has participated in a perversion of the course of justice . Judge Allen asked for the Traffic Antecedents of Mark Stephen Flowers, through the Bathurst NSW Police Prosecutor could not provide a copy of these antecedents to Judge Allen. It was a Miscarriage of Justice to have continued to sentence Mark Stephen Flowers for Negligent Driving 2016 / 00237698-002 without being able to view the Traffic Antecedents of Mr Flowers. It would of only needed a short adjournment to acquire the Traffic Antecedents.

4E

Added

At hearing 26th of April 2017 in Bathurst Local Court Judge Allen has participated in a perversion of the course of justice . the concern is simply WHY weren’t the Traffic Antecedents available ? It is believed they were not available maliciously , because if they had been available Judge Allen would have been on the record as to having read and been participating in the perversion of the course justice. This perversion of the course was commenced originally by Bathurst NSW Police Constable Michael Costelloe in creating a false and misleading record of Leaving the Scene of a Major Vehicle accident on the 3/5/16 against Mr Flowers, done so just 5 days prior to his Bathurst NSW Police colleagues Con Hughes and Scon Simpson bringing false charges of Assault Occasioning and Negligent Driving , a blatant Perversion of the Course to improve the Malicious Prosecution chance for Bathurst NSW Police.

4F

Added

The Bathurst NSW Police and Judge Allen Bathurst Local Court have participated in this Perversion of the Course of Justice on the 26 th April 2017. All photographic evidence proved without doubt that Mark Stephen Flowers was completely innocent of any negligent driving and all charges corruptly brought against him by Bathurst NSW Police.

5

Added

ABUSE OF PROCESS .The evidence mentioned in this case that is to be relied on is before the Supreme Court specifically the large main evidence Affidavit filed 15th April 2019 formerly commenced on file number 2018 – 348865 now closed and is an abuse of process from the Supreme Court of NSW to have closed it . Then converged to new file number 2019 / 117371 . For the Supreme Court to have closed this file 2018 / 348865 main evidence makes the plaintiffs case of Apprehended Bias from the court filed 13/8/19 , and also filed 13/8/19 risk to life Special Circumstances . It is now in evidence that on the 29/3/20 there was and attempt on the plaintiffs life , NSW police event number 2850865.

6

Added to end of paragraph 5

And the additional 20/1/20 filed 29 State of NSW questions answered .

7

[6] There is no attempt here by the plaintiff Mr Flowers to re litigate the past though the past actions by NSW Police against the plaintiff Mr Flowers are malicious and proven and there for show the malice and intent to harm the plaintiff Mr Flowers.

There is no attempt here by the plaintiff Mark Stephen Flowers to re-litigate the "past false arrest and false imprisonment by the defendants" though the past actions by defendants against the plaintiff Mark Stephen Flowers are malicious and proven and there for show a concerning pattern of abuse malice and intent to harm the plaintiff Mark Stephen Flowers. The IAT Immediate Action Team Riot Squad Surry hills Police Centre TORTURE of the Plaintiff is being re-litigated as was never settled and is evidence that proves the intent historic to current abuse of the plaintiff by the defendant.

9

[8] Contributed to the destruction of the plaintiff's relationship to his former family and fatherhood

Contributed to the destruction of a family and fatherhood

17

[16] Addition to end of paragraph.

for a separate "car park bingle event" not related to 14/3/16 event.

18

[17] addition of to pervert the course of justice.

NON investigation to pervert the course of justice as in evidence before the court.

19

[18] addition of to support his police colleagues desperate effort to bring further false charges against Mr Flowers.

Bathurst Police Con Costelloe in act perversion of the course of justice to support his police colleagues desperate effort to bring further false charges against Mr Flowers.

20

Added

The use of this false instrument traffic record of leaving the scene of a major vehicle accident created by Bathurst NSW Police Con Costelloe on the 30/7/16 on this day he acknowledged in email to "Leigh Rollason solicitor for Mr Flowers" receipt of a Statutory Declaration of Mr Flowers dated 14/7/16.

The 30/7/16 is the believed date Con Costelloe came back from leave and on that day he emailed Mr Flowers solicitor acceptance of "stat dec" . And on this date 30/7/16 Con Costelloe created false traffic record of leaving the scene of a major vehicle against Mr Flowers . This was a perversion of the course of justice with intent.

21

Added to replace paragraph 21

Just 5 days later on the 4/8/16 Con Hughes and Scon Simpson proceeded to Pervert the Course by bringing false Assault and Negligent driving charges against Mr Flowers . Con Costelloe assisted in this Perverting of the Course to aid Con Hughes and Scon Simpson whom needed serious false traffic record against Mr Flowers before daring to bring false charges supporting negligent driving . Judge Allen 26/4/17 is believed privilege and a participant to this malicious prosecution . Judge Allen in transcript asked for the Traffic Antecedents it was a miscarriage of justice to have sentenced Mr Flowers without Judge Allen vying the traffic Antecedents , why were Mr Flowers Traffic Antecedents not in court 26/4/17 at hearing ?

22

Added in replace of paragraph 21

On the 4th of August 2016 defendants CON MADELINE HUGHES and SCON MARK SIMPSON prepared false charges of assault and negligent driving for the 14/3/16 event , to be brought against Mr Flowers with the confidence that Con Costelloe had fabricated the false charge of , leaving the scene of a major vehicle accident. Its believed they needed Costelloes false charges to give Judge Allen confidence to proceed as a participant of this perversion of the course in finding false imprisonment of Negligent driving against Mr Flowers, in attempt to thwart Mr Flowers seeking damages for Malicious Prosecution for the 2nd time!

24

[23] Added at end of paragraph

Bathurst NSW Police Con Costelloe roll in supporting this Perversion of the course was vital and the forunner to this Malicious Prosecution.

27

[26] Addition of previous nonfeasance and to assist the perversion of the course in play.

The level of pain suffering and stress upon the plaintiff directly from the previous nonfeasance inaction of the Bathurst NSW Police to address Automatic Weapons fired at and on his property and the Slaughtered Animals left on his property combined with the GL Frost Perpetrator event and the initiating defendants AVO against plaintiff for the 14/3/16 event followed by Con Costelloe false record to assist the perversion of the course in play.

28

[27] added of nonfeasance inaction

The plaintiff was in affect through the nonfeasance inaction and malicious actions of the defendants, forced to leave town to sell his dream property.

32

[31] Added at end of paragraph

This was a miscarriage of justice.

33

[32] Added defendants and false

The plaintiff Mr Flowers raised the believed need to appeal the defendants false Negligent Driving charge with former Sydney NSW lawyers Armstrong Legal David Porter in early May 2017 at commencement of representation formerly and on other occasions and was assured defendants false the Negligent Driving charge did not need to be appealed and that Malicious Prosecution could be perused without the need to appeal the defendants false charge . The plaintiff Mr Flowers took the advise of David Porter at the time. Eventually agreement with Armstrong Legal and the plaintiff Mr Flowers was terminated.

36

[35] In fairness to Judge Allen. false records false instrument were placed before him by Bathurst NSW Police and Bathurst NSW Police Prosecutor as were previous historic NSW Police FALSE RECORDS against the plaintiff now proven and before the court in evidence

I withdraw any mention of fairness to Judge Allen Bathurst local Court his decision went against all of the evidence proving GL Frost was without any doubt the perpetrator. For Judge Allen to not dismiss the Negligent Driving charge is wrongful and believed a malicious perversion of the course. False records false instrument were in play by NSW Police . Transcripts of 26/4/17 have not clarified as to any antecedents of Mark Stephen Flowers being read or not read . What is certain and proven on paper is that all NSW Police records against Mark Stephen Flowers are FALSE . And the NSW Police Brief of Evidence in this case is a complete malicious fabrication , the only part of it truthful being Con Hughes first mention of Mr Flowers as VIC victim . Judge Allen Hearing 26/4/17 was a corrupt process !

37

Added

The motive for this malicious prosecution was revenge focused against the plaintiff Mr Flowers for previously achieving judgement against NSW Police Force . There was no reasonable or probable cause , further this was a blatant example of " Animus Iniuriandi " the intention to injure the plaintiff Mr Flowers , by the act of the defendant in instigating, initiating and maintaining the prosecution against all evidence and formal lawyer submissions of "no prospects of success" and that the charges were " frivolous " though the Bathurst NSW Police continued to maliciously prosecute .

Historic to current malicious prosecutions pattern of behaviour proven in evidence against the defendants.

PROVEN 19/9/2006 LS Con Warner and SGT Gilroy of Hornsby NSW Police Station.

PROVEN 18/1/2007 LS Con Warner Parramatta Local Court

PENDING JUDGEMENT 14/3/2016 Roadside investigation was proven grossly negligent against plaintiff by defendants Con Hughes and Con Lodge and Scon Simpson a malicious prosecution.

PENDING JUDGEMENT 26/4/2017 Con Hughes and Con Lodge and Scon Simpson Bathurst Local Court Malicious Prosecution. Miscarriage of justice . Perversion of the course of justice.

PENDING JUDGEMENT 3/5/16 Con Costello malicious prosecution fabricating of evidence to pervert the course of justice.

The pattern of malicious prosecutions against the plaintiff is proven historically and would be proven currently in trial by jury.

The motive for this current Bathurst malicious prosecution was revenge focused against the plaintiff Mr Flowers for previously achieving judgement against NSW Police Force for ,malicious false arrest and false imprisonment . There was no reasonable or probable cause in this Bathurst matter only proven institutional corruption and revenge agaists the plaintiff by the defendants. Further this was a blatant example of " Animus Iniuriandi " the intention to injure the plaintiff by the act of the defendant in instigating, initiating and maintaining the malicious prosecution against all evidence and formal lawyer submissions of "no prospects of success" and that the charges were " frivolous " though the defendants continued to maliciously prosecute the plaintiff.

39-43

Plaintiff has added each element number

39B

The Negligent Driving charge finding was not , and is a miscarriage of justice . In fairness to Judge Allen , false records were placed before him in that Judge Allen sought to read traffic antecedents as said in transcript 26/4/17 , and in his honour reading the accused persons " falsified traffic antecedents by Con Costelloe's " failure to investigate and further to place a false serious driving record against the accused person was a perversion of the course . And is believed to have added specific weight to event 14/3/16 GL Frost matter being heard by his honour, further other false NSW Police public records against the accused person , Now Removed from NSW Police public records . Would have been available for Judge Allen to read . The negligent driving charge against the accused person was wrongful .

The Negligent Driving finding and judgement was a miscarriage of justice. False Instrument false records were before Judge Allen who sought to read the traffic antecedents of Mark Stephen Flowers, it is believed they were maliciously not available to Judge Allen to view. In any case they were "falsified traffic antecedents" and by Bathurst NSW Police Con Costelloe's failure to investigate and further to place a false serious driving record against the accused person was a Perversion of the Course. Trafic antecedents records for Mark Stephen Flowers on that date 26/4/14 Bathurst Local Court must be produced.

39C

An additional perversion pf the course of justice, was that in , Mr Flowers historic records {NCC ref no 193010-124233} NOW REMOVED false records against the plaintiff existed for Judge Allen to read. And is believed to have added specific "perverted course weight" to event 14/3/16 GL Frost matter being heard by Judge Allen . These historic records now removed from the Mr Flowers NCC public records, though have been filed in evidence into the Supreme Court in this case . These false records would have been available for Judge Allen to read . The negligent driving finding against the accused person was wrongful , and further during 26/4/17 Bathurst trial it was proven forensically to have been a fabrication by Mr Frost , the same perpetrator who removed the keys from the Flowers car and threw them into the bush , Frost also moved his own vehicle from the crime scene before police arrived !

41E

Added words life threatening

Bathurst defendants major life threatening Nonfeasance !

41H

Added at end of paragraph

very serious nonfeasance.

42A

Added at end of paragraph

abuse

43D

Added at end of paragraph

to escape the deprivation of liberty attempt.

43I

Added at end of paragraph

was gross negligence perversion of the course ..

45B

Addition

NSW police force complete failure to consider the plaintiff Mr Flowers ingrained PTSD injury re previous judgement District Court 20091332550 12th February 2014 against NSW Police Force , and this time Bathurst NSW Police had full knowledge of the injury they caused . Though NSW Police commenced and maintained false prosecution against plaintiff Mr Flowers when all evidence led to him being 100% innocent .

45C

Added at end of paragraph

to these false malicious charges.

46K

Added at end of paragraph

defendants in her line of duty

46N

Clearly in this case Bathurst NSW Police Force Con Hughes and Secon Simpson has completely failed to do there duty this is Gross Negligence and Recklessness or Perversion of the Course of Justice to achieve Malicious Prosecution.

Clearly in this case Bathurst NSW Police Force Con Hughes and Secon Simpson and Con Lodge has completely failed to do there duty this is Gross Negligence and Recklessness or Perversion of the Course of Justice to achieve Malicious Prosecution.

53C

Bathurst defendants Con Costelloe by complete failure to investigate car park bingle in shopping centre car park , fabricated a false charge against the plaintiff Mr Flowers of " leaving the scene of a major vehicle accident " Judge Allen 26/4/17 asked for the "traffic antecedents at hearing " . This false record to create false instrument applied weight to against Mr Flowers driving record . And is believed to have influenced the wrongful decision to allow negligent driving charge finding against plaintiff Mr Flowers . Other major false NSW Police records against plaintiff Mr Flowers would have also been read by Judge Allen as well .

Bathurst defendants Con Costelloe by complete failure to investigate car park bingle in shopping centre car park , fabricated a false charge against the plaintiff Mr Flowers of " leaving the scene of a major vehicle accident " Judge Allen 26/4/17 asked for the "traffic antecedents at hearing " . This false record to create false instrument applied weight to against Mr Flowers driving record . And gave confidence to perverting the course and wrongful malicious decision from Judge Allen to place dales negligent driving finding against Mr Flowers . This is a miscarriage of justice.

54C

Spite and ill will against plaintiff Mr Flowers because he has successfully achieved judgement previously against NSW Police Force harming the careers of the officers involved in harming the plaintiff Mr Flowers.

Spite and ill will against plaintiff Mr Flowers because he has successfully achieved judgement previously against NSW Police Force harming the careers of the corrupt officers involved for persecuting the plaintiff.

55 - 111

These paragraphs have been added to proposed SoC.

116D

Addition of public interest

There must be punishment , a Jury must hear all of this evidence as it is a public interest matter case against the state of NSW and must be heard independently by a Jury panel of 12 , as is of National Importance and would be of Major public Interest .

  1. There are repeated references in the proposed statement of claim to the “Bathurst defendants", in circumstances where there is only one named defendant, the State of New South Wales. Further, a principal difference between the previous statement of claim and that now sought to be relied upon by the plaintiff is the addition of paragraphs [55] to [111] which, by reference to various headings, seek to raise what have been described as:

  1. “Historic Abuse evidence of torture of plaintiff in custody via false arrest false imprisonment connects and proves a continuance of malice in this current malicious prosecution case against the Bathurst defendants”; [9]

  2. “Historic Abuse evidence of torture major breach of the Evidence Act 1995 raised comprehensively to the District Court of NSW at the time and in evidence before the Supreme Court NSW currently proving a conspiracy to conceal”; [10]

  3. “Human Rights violations of the Plaintiff by the defendants … the human rights bill Queensland 2018 used as Australian reference …”; [11]

  4. “trial by jury and the drafting of this further amended statement of claim”. [12]

9. [55].

10. [64].

11. [103]; [105].

12. [111].

SUBMISSIONS OF THE PARTIES

  1. Amongst the submissions advanced by the plaintiff in his affidavit were that:

  1. “the present failed management of this case" within the court was such that “judicial review is required regarding all judgments made by Harrison J”;

  2. “an attempted murder of the plaintiff has occurred for blowing this whistle in this case against the agents of the state the NSW police”;

  3. Harrison J had erred in not acknowledging that “he and the Supreme court of New South Wales was furnished a Special Circumstances document filed on the 13/8/19", a document which made it “quite clear the plaintiffs life was at risk of NSW Police reprisal [and] … at risk of being murdered” and that Harrison J “should of [sic] acted and intervened to put in place protection for the plaintiff" and that he “did not even intervene to bring the plaintiff's case forward without delay";

  4. this Court “did nothing to help protect the plaintiff, knowing full well the plaintiff [sic] life was at genuine risk [sic] being homeless due to this STATE ABUSE based on the evidence provided to the court such dead animals and automatic weapons fire bullet holed riddled signs!;”

  5. Harrison J was at fault to “have taken 10 months to confirm what it already knows, that being [the plaintiff] is entitle to fee waive of the costs for Trial by Jury due to his homeless position…”.

  1. Each of these assertions, as well as a number of others set out in the plaintiff's affidavit, was preceded by the words:

“Recusal of Justice Harrison was achieved…".

  1. The proposition that Harrison J recused himself was repeated by the plaintiff during the course of the hearing. [13]

    13. See for example T3.7.

  2. In oral submissions, the plaintiff further asserted that:

  1. there was a “mystery file in the Supreme Court" which had been “hidden"; [14]

    14. T8.22-T.8.23.

  2. such file “answers and makes the case as to why these amendments must go into this statement of claim"; [15]

    15. T9.6-T9.7.

  3. it was not appropriate for the defendant to “continually press clerical issues" in circumstances where the plaintiff was self-represented; [16]

    16. T11.13-T11.14.

  4. the proposed further amended statement of claim “does not try to change too much from the statement of claim that they accepted… It doesn't try to change too much at all. All it does is specifically add that there has been a mistrial and a miscarriage of justice in the originating court in Bathurst". [17]

  5. the presiding magistrate who dealt with the matter in the Local Court had “participated in a perversion of the course in that matter”; [18]

  6. there had been “historic torture"; [19]

  7. the defendant had been responsible for “so many human rights breaches"; [20]

  8. a mediation which took place was “a corrupt process". [21]

    17. T12.2-T12.6.

    18. T12.13-T12.15.

    19. T12.46.

    20. T13.6-T13.7.

    21. T13.23.

  1. The plaintiff also said the following in oral submissions: [22]

I'll get to there. There's deaths in custody, there are slaughtered animals. It's a very serious matter. I also brought the court back to the point that on 29 March this year there was an attempt on my life to silence this evidence before your Honour, I acknowledge now, by the New South Wales Government, as a victim of that particular attempt on my life. It is connected to this. It is to damning, this evidence, that they are trying to silence it and that is why I needed it read, so your Honour was across it, so I can make a case for the amendments. If we get back to the amendments, I will try to focus on that. There was my request to have those documents read.

22. T10.43-T10.50.

Submissions of the defendant

  1. Counsel for the defendant submitted that the proposed further amended statement of claim was embarrassing, and contained ambiguities which placed the defendant in an impossible position in terms of being able to respond to it. It was further submitted that the document pleaded matters of law which were inapplicable, and contained a number of what were described as “curiosities of form". It was further submitted that the proposed further amended statement of claim was an abuse of process, arising from the fact that much of the material now proposed to be included was not of a dissimilar nature to material which had previously been struck out by the order of Harrison J. Counsel submitted that to allow the amendment in all of these circumstances would be to permit unjustified further delay, in circumstances where there was a complete absence of any explanation as to the delay in bringing the present application.

  2. Counsel for the defendant further submitted that nothing stated by the plaintiff, be it in his affidavit or before the Court, provided a proper basis to grant the application. It was submitted that to do so would be unfairly prejudicial to the defendant because it would, inter alia, require the defendant to embark upon “a very challenging task given the embarrassing nature of the proposed pleadings".

  3. Counsel for the defendant further submitted that references to the plaintiff's arrest by police in 2006 were irrelevant to any cause of action that the plaintiff sought to bring. It was submitted that there was an inference available from those references that the proposed further amended statement of claim represented an attempt to commence proceedings for an ulterior purpose.

  4. Perhaps more fundamentally, counsel for the defendant submitted that the affidavit of the plaintiff made it abundantly clear that in bringing the present application he was proceeding upon the fundamental misconception that Harrison J had recused himself from the hearing of the proceedings.

  5. It was submitted that having regard to all of these matters, the proposed further amended statement of claim was defective as to both form and content, and that it constituted an abuse of process.

CONCLUSION

  1. For the reasons that follow, I have come to the view that in the exercise of my discretion the order sought by the plaintiff should be refused.


  2. To begin with, it will be evident from what appears in the plaintiff's affidavit in support of the motion that underlying his application is the proposition that Harrison J recused himself from the matter. That is plainly not so. The plaintiff’s repeated assertion that Harrison J recused himself is a fundamental misconception.

  3. The function of a statement of claim is to set out, with clarity, the case that the defendant must meet, thus satisfying a basic requirement of procedural fairness. [23] In my view, the proposed further amended statement of claim fundamentally fails in that regard. The pleading is embarrassing. It is largely unintelligible, and is so imprecise in its identification of the material factual allegations that it deprives the defendant of proper notice of the real substance of the claim.

    23. Gunns Limited v Marr [2005] VSC 251 at [14]-[15].

  4. The embarrassing nature of the pleading is reflected in a number of ways. If one assumes that the plaintiff's cause of action is one for malicious prosecution, some of the assertions made in the statement of claim appear to agitate an appeal against a finding of the Magistrate in the Local Court. The embarrassing nature of the pleading is further evident from an apparent reliance upon “the human rights bill Queensland 2018",[24] and the “International Covenant on Civil and Political Rights”,[25] neither of which have any application to the proceedings.

    24. At [105].

    25. At [105].

  5. Paragraphs [111] and following make reference to “trial by jury". As I have indicated, an application that the matter be heard by jury has previously been dismissed by Harrison J.

  6. The precise cause of action that the document seeks to plead is difficult to ascertain. Whilst there are various references to causes of action under the heading “type of claim", some of them, such as “concealment" make no sense. Others, such as defamation, are not the subject of any pleading.

  7. Moreover, the nature and extent of the material in the proposed further amended statement of claim over and above that which appears in the existing statement of claim is completely at odds with the plaintiff's submission that the proposed pleading “does not try to change too much". [26]

    26. T12.2.

  8. There has also been a significant period of time which has elapsed since the defendant filed its defence to the existing statement of claim. No explanation for that delay has been advanced by the plaintiff. To allow an amendment of this kind in those circumstances would, in my view, be contrary to facilitating the overriding purpose set out in s 56 of the CPA, namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings. This is particularly so in circumstances where, as I understand it, the parties are otherwise ready to take a date for hearing.

  9. For all of these reasons, the plaintiff’s application should be refused.

  10. I should note that at the conclusion of the submissions I enquired of each party as to whether there was any reason why costs should not follow the event. The plaintiff, as a self-represented litigant, did not appear to understand that principle. Accordingly, and in fairness to him, I do not propose to determine the question of costs at this point. Rather, I will reserve the question of costs and provide the parties with an opportunity to provide short submissions in relation to that question.

ORDERS

  1. I make the following orders:

  1. The notice of motion filed by the plaintiff on 11 September 2020 is dismissed.

  2. I reserve the question of costs.

  3. I direct each party to provide written submissions as to the appropriate order as to costs within 7 days, such submissions not to exceed two pages in length.

  4. I list the matter for directions before the Registrar on 21 October 2020.

**********

Endnotes

Decision last updated: 14 October 2020

Most Recent Citation
Cases Citing This Decision

1

Flowers v State of New South Wales [2021] NSWSC 317
Cases Cited

5

Statutory Material Cited

2

Flowers v State of New South Wales [2019] NSWSC 1308
Flowers v State of New South Wales [2019] NSWSC 1467
Flowers v State of New South Wales [2020] NSWSC 526