Flowers v State of NSW

1. [1]

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

2. [2]

   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.

3. [3]

   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. [4]

   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. [5]

   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]

3. [6]

   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. [7]

   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. [8]

   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]

THE APPLICABLE LEGISLATIVE PROVISIONS

1. [9]

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

2. [10]

   To begin with, s 64 of the Civil Procedure Act 2005 (NSW) (the CPA) is in the following terms:

3. [11]

   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:

4. [12]

   Section 58 is in the following terms:

5. [13]

   Section 59 of the CPA is in the following terms:

6. [14]

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

THE PROPOSED FURTHER AMENDED STATEMENT OF CLAIM

1. [15]

   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.

2. [16]

   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:

SUBMISSIONS OF THE PARTIES

1. [17]

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

2. [18]

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

3. [19]

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

4. [20]

   In oral submissions, the plaintiff further asserted that:

5. [21]

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

Submissions of the defendant

1. [22]

   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. [23]

   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. [24]

   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. [25]

   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. [26]

   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. [27]

   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. [28]

   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. [29]

   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.

4. [30]

   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.

5. [31]

   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. [32]

   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. [33]

   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]

8. [34]

   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. [35]

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

10. [36]

    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. [37]

   I make the following orders:

   1. (1)

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

   2. (2)

      I reserve the question of costs.

   3. (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. (4)

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