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.
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."
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.
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.
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.
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.
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.
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.
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.
The defendant is a model litigant. The conduct of this application by Mr Williams and Ms Curry of counsel for the defendant and those who instruct them bears witness to compliance with that standard. Conversely, Mr Flowers appears without legal assistance in these proceedings. (That is to be contrasted with the situation in 2009 when Mr Flowers sued the defendant in the District Court of New South Wales in proceedings commenced by statement of claim, a document which appears clearly to have been prepared by a lawyer and which appears to have survived unscathed until the conclusion of those proceedings by settlement in his favour).
The defendant contends that it is entitled to have the present amended statement of claim struck out in accordance with UCPR 14.28 as it does not disclose a reasonable cause of action and has a tendency to cause prejudice, embarrassment or delay or is otherwise an abuse of process of the Court. Alternatively, the defendant maintains that the proceedings should be dismissed pursuant to UCPR 13.4 as being vexatious, disclosing no reasonable cause of action or constituting an abuse of process.
Part of the evidence before me includes a letter written on 14 June 2019 by Ms Kmetyk to Mr Flowers seeking further and better particulars of the amended statement of claim. The defendant's present attitude to this application has been understandably inspired by the fact that Mr Flowers did not provide the particulars requested. Instead, Mr Flowers filed a reply on 2 July 2019 which he continues to maintain was a sufficient response to the defendant's request. It was not.
Mr Flowers' reply, including annexures, extends for some 62 pages. It is discursive, largely unresponsive, at times rambling and in no proper sense does it amount to a proper reply to a reasonable request for particulars. Indeed, if Mr Flowers had taken the time to stand back from his obsessions, and had clearly and properly responded to the questions asked, there is little if any doubt that the defendant would by now have filed its defence and Mr Flowers would be that much closer to a final resolution of this litigation.
There is an unfortunate flavour evident in the amended statement of claim of confusion between the essential elements of the cause of action for which Mr Flowers contends on the one hand and the mistakenly understood manifold other events and allegations, detailed in his reply, about corrupt psychiatrists, death threats, character assassination, torture and the perversion of the course of justice. It is in my view unremarkable in such circumstances that the defendant seeks to bring the proceedings to an end because of the frailty of the pleadings when those proceedings could be well on the way to resolution if Mr Flowers were not so prone to diversion and distraction by matters that he may consider to be relevant, but which are plainly not fundamental, to the way in which he is required to plead his case.
I am not currently prepared to conclude that the amended statement of claim cannot be saved by a proper response from Mr Flowers to Ms Kmetyk's perfectly reasonable request for further and better particulars. In expressing that opinion, I am not intending to bind the defendant to a similar view. Simply stated as a matter of practical, not to say quick and cheap, justice, I consider that the defendant's application should be adjourned part-heard before me, in anticipation that Mr Flowers provides the information that has been requested. I propose upon consideration of any responses he gives to assess whether or not the relief sought by the defendant in its notice of motion should be granted or refused or what other course, if any, should be taken in the circumstances as they are then seen to be.
I will refrain from dealing with Mr Flowers' notice of motion at this time for the reasons referred to earlier.
I will therefore make the following orders:
1. Direct the plaintiff, if so advised, to furnish the defendant or its solicitor by no later than 4pm on Wednesday 23 October 2019 with answers to the defendant's request for further and better particulars of the amended statement of claim contained in the letter dated 14 June 2019 from McCabe Curwood to the plaintiff, being exhibit AK-4 to the affidavit of Amanda Kmetyk sworn 1 August 2019.
2. Grant liberty to apply on 48 hours' notice.
3. Stand over the defendant's notice of motion filed 1 August 2019 and the plaintiff's notice of motion filed 9 August 2019 for further hearing before me on 24 October 2019.
4. Reserve costs.
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Decision last updated: 01 October 2019