Flowers v State of New South Wales

Judgment

1. HIS HONOUR: By notice of motion filed on 1 August 2019, the defendant moves the Court for orders to strike out Mr Flowers' amended statement of claim. That application is supported by two affidavits of Amanda Kmetyk sworn on 1 August 2019 and 30 August 2019 which were read without objection on this application.
2. Mr Flowers has also filed a notice of motion on 9 August 2019 seeking orders that can best be described by quoting them in terms as follows: "1. That the Judge listed to hear the notice of motion filed by the defendant on 1 August 2019 and listed for 26 September 2019 to have my claim against the State of New South Wales recuse himself or herself for want of jurisdiction, 2. That this matter be allocated a date for the empanelling of a jury."
3. Mr Flowers relied upon three affidavits sworn by him, one on 9 August 2019 and two on 13 August 2019. Objection was taken to the form of some portions of these affidavits but the defendant accepted that I should treat them where applicable as Mr Flowers' submissions on the issues that he wishes to raise.
4. I indicated to the parties that, as it appeared to me, it would seem to be preferable to deal with the defendant's motion first so that if I formed the view that the amended statement of claim should be struck out or if leave to replead were granted, the question of whether the principal proceedings should be heard by a jury could then more accurately be determined.
5. I note in passing that it was Mr Flowers' contention that even the defendant's motion should not be heard by a single judge but that it should be determined by a jury. I rejected that suggestion without giving reasons. I did so upon the basis that, in my experience, it was unlikely that Mr Flowers would be able, before the conclusion of these proceedings at first instance, successfully to challenge my peremptory rejection of his application that a jury should be empanelled to hear the current interlocutory dispute.
6. The current pleading upon which Mr Flowers relies is his amended statement of claim. It is a difficult document to describe. It is replete with references to all manner of things that are clearly or at least arguably either wholly irrelevant to the case he wishes to propound or simply unnecessary. In order to give content to that perception, it is helpful to record what I understand, and what Mr Flowers accepts, are the primary events and circumstances that have generated the present litigation.