HIS HONOUR: This matter originally came before me on 26 September 2019. I published reasons for judgment on 1 October 2019: see Flowers v State of New South Wales [2019] NSWSC 1308.
Thereafter, in response to my suggestion, Mr Flowers provided further answers to the defendant's request for particulars of his amended statement of claim. Although not required to do so, Mr Flowers also filed a copy of his answers with the Court on 21 October 2019.
The defendant has now indicated that, despite the provision of this further material, it is still unable to file a defence to the amended statement of claim, and maintains its position that, pursuant to the relief that it seeks in its notice of motion filed on 1 August 2019, the pleading should be struck out in accordance with UCPR 14.28 and/or that Mr Flowers' claim be dismissed in accordance with UCPR 13.4 upon the basis that it is frivolous or vexatious.
[2]
Background
Mr Flowers originally commenced these proceedings by a statement of claim filed on 15 April 2015. He made a series of allegations about malfeasance in public office, perversion of the course of justice, malicious prosecution, abuse of process and what I take to be a reference to something called tortious intent. Mr Flowers' amended statement of claim was filed on 27 May 2019 and expanded the claims previously made to include allegations of a breach of human rights, creation of a false instrument and defamation. The amended statement of claim seeks the following relief:
That the defendant be found guilty of many numerous human rights violations against the plaintiff over a 14 year period with relentless attempts to maliciously incarcerate false arrest and false imprison to maliciously prosecute falsifying official records to be found guilty of "perversion of the course of justice" use of a "false instrument" human rights violations.
That the plaintiff be awarded monetary damages of three million and eighty five thousand dollars that being damages $350,000 exemplary damages $2,700,000 costs $35,000 a total of $3,085,000 or as a jury sees fit pursuant to the current Jury Act in NSW Australia 2019.
The State of New South Wales is vicariously liable for its agents NSW Police Force, relentless human rights violations to maliciously cause harm to the plaintiff pursuant to the Vicarious Liability Act 1983 and the Crown Proceedings Act 1988 that the corrupt members involved in these human rights violations be brought to justice and to face the full force of the law so as not to be seen as to be above the law.
On 14 June 2019, the defendant requested further and better particulars of the amended statement of claim. The defendant maintains that it has not received a sufficient response to that letter, including Mr Flowers' most recent response referred to earlier, that assists it to formulate and file a proper defence.
It seems reasonably apparent that the circumstances that have generated these proceedings relate to two criminal prosecutions in which Mr Flowers has been involved. They are as follows.
[3]
Breach AVO arrest and proceedings
On 19 September 2006, Mr Flowers voluntarily attended Hornsby Police Station at the request of Senior Constable Warner. He was then arrested for breach of an apprehended violence order by Constables Warner and Jones. Mr Flowers was held in custody until approximately 4.00pm before being taken before a Magistrate at Hornsby Local Court the same day. Whilst in custody, a person in the cell next to him attempted to commit suicide by hanging.
Mr Flowers was granted bail but remained in custody as he was unable to meet the bail surety. He was transported to the Surry Hills Police Centre, where he remained until 20 September 2006 when the surety was paid on his behalf. What Mr Flowers alleges occurred whilst he was in custody is set out in further detail below.
As a result of the events of 19 and 20 September 2006, Mr Flowers commenced proceedings by statement of claim filed in the District Court of NSW on or about 11 September 2009 alleging wrongful arrest, unlawful imprisonment, assault, negligence and misfeasance in public office. The first defendant was named as the NSW Police Service and the second defendant was the NSW Department of Corrective Services. The pleadings and particulars included a breach of duty of care, malicious use of the Riot Squad, breach of the strip search procedures, the alleged threat of a baton rape and wrongful and unlawful arrest.
In his affidavit of April 2011 prepared for use in those proceedings, Mr Flowers gave evidence of events that he now contends establish that he was tortured by the present defendant. It also alleged that the present defendant murdered Gary Kelso, who died in custody. Mr Flowers claimed that Mr Kelso's death was an ASIO sanctioned operation that was in some manner connected to the case against him.
In the affidavit of October 2012, Mr Flowers alleged as part of the previous proceedings that he was falsely arrested on 19 September 2006. Following his arrest, he claimed that while in custody he was assaulted by officers of the Department of Corrective Services Riot Squat and that there had been an attempt to "cover this major breach of" his human rights which raised "major concerns of corrupt conduct".
At the risk of some repetition, it is instructive to record Mr Flowers' account of those events as set out in his affidavit.
Mr Flowers said that he voluntarily attended Hornsby Police Station on 19 September 2006 in response to a telephone call he received that day from Constable Warner. Constable Warner requested that he attend the police station in order to sign some documents.
He was arrested in relation to a breach of an apprehended violence order alleged to have occurred on 4 September 2006. Following his arrest, Mr Flowers was taken into the custody area, fingerprinted and held before being taken to the Magistrate at 4.00pm. While Mr Flowers was waiting in a holding cell prior to appearing before the Magistrate, he witnessed a person in the cell adjacent to him attempt to commit suicide. He states that he attempted to speak to a police officer about it who told him "shut up or you will be put in with him".
Mr Flowers was granted bail by the Magistrate but remained bail refused as he was unable to deposit the sum required to meet bail. He asked to be allowed to withdraw the money from the ATM across the road from the police station but was told by Constable Warner that "if you don't have the funds in your wallet it's too late your gone".
Mr Flowers said his request to speak to the duty solicitor was refused. He was detained in a holding cell for a further one to two hours and strip searched by police before to being transported in a Corrective Services van to Silverwater Correctional Centre.
On 20 September 2016, Mr Flowers was taken to Surry Hills Police Centre where he was detained in a holding cell with eight other men. He said that during this time he was again strip searched by the riot squad. During this search he alleged police said words to the effect that they were intending to "baton rape" him.
Mr Flowers was ultimately released at approximately 5.00pm on 20 September 2006 after his bail was met. He stated he was still affected by the "ordeal" as at 22 October 2012 and that he remained in fear of "the Police and Correctional Services 'Immediate Action Team' squaddies".
On 15 January 2007, the proceedings in relation to the alleged breach of the apprehended violence order were dismissed at Parramatta Local Court.
Mr Flowers relied upon a number of psychiatric reports. One of these was prepared on 20 March 2012 by Dr Bruce Westmore, a Forensic Psychiatrist. Mr Flowers recounted the detail of his arrest and detention by police in 2006. In relation to this, Dr Westmore recorded the following:
"I have asked him how these events affected him mentally and psychologically and he said 'I still have concerning dreams of darkness and black uniformed terror. I feel terror in the presence of police, police vans'. He said he starts shaking and tries to control this. He said it's been six years since the incident, but 'it doesn't leave me'."
Dr Westmore concluded that Mr Flowers was suffering from Chronic Post-Traumatic Stress Disorder:
"It is likely he will remain 'sensitised' to certain triggers which have relevance to his arrest and detention, things such as seeing police officers, police vehicles, hearing police sirens or seeing news items regarding police. Chronic Post-Traumatic Stress Disorder is a condition which rarely goes into full remission and I do not believe that will occur in this particular case. To that extent he will be affected long term and probably lifelong as a result of the arrest and detention."
Mr Flowers' claim was settled for $230,000 inclusive of costs by way of consent judgment filed on 12 February 2014. The settlement does not appear to have involved a deed or any other document.
[4]
Bathurst Local Court prosecution 2016-17
On 4 August 2016, Mr Flowers was charged by Constable Madeleine Hughes with an offence of assault occasioning actual bodily harm and negligent driving, alleged to have occurred on 14 March 2016. The victim in the matter was his neighbour, Mr Greg Frost. Mr Frost commenced private apprehended violence order proceedings against Mr Flowers shortly after the incident. That incident would appear to have involved the following events.
At about 2.45pm on 14 March 2016, Mr Frost was travelling along Kelly Road, Fitzgerald's Mount when he noticed Mr Flowers' vehicle approaching him from behind. That vehicle remained excessively close to the rear of Mr Frost's vehicle for some time. Mr Frost slowed down to approach a cattle grid marking and shortly after felt an impact to the rear of his vehicle. This impact pushed his vehicle off the dirt road where it came to a stop. Mr Frost saw Mr Flowers' vehicle continue through the intersection and make a right hand turn before stopping. An altercation then ensured between these men. Mr Flowers punched Mr Frost in the face and on the side of his mouth. When police arrived at the scene, they took photographs of both the damage to Mr Frost's vehicle and the injuries to his face.
On 15 March 2016, Mr Frost provided a written statement to police of what occurred. He also provided a copy of his medical records. Constable Hughes attempted to contact Mr Flowers after the incident in order to obtain a formal statement of what occurred or to conduct an interview. However, Mr Flowers declined the invitation to cooperate.
On 26 April 2016, Magistrate Allen dismissed the charge of assault occasioning actual bodily harm after a hearing. He found the charge of negligent driving to have been proved but dismissed the matter without conviction.
[5]
Consideration
Mr Flowers relies upon an affidavit filed in these proceedings on 15 April 2019. He says that he has provided "the documented evidence history that substantiates this claim some 13 years in length" which is relied upon to prove that the NSW Police Force have caused him "malicious harm over this period". As such, a large part of the material relied upon would appear to relate to the matters that were the subject of the previous District Court proceedings that have been determined.
Based upon the brief outline of the Bathurst events, it appears to me that Mr Flowers could, with some professional assistance, formulate a claim pleaded in a way that would withstand scrutiny at this stage of the proceedings. That would require him to limit his pleadings to the events in Bathurst in 2016 but to exclude all reference to the events originating at the Hornsby Police Station. Whether or not he could draw upon earlier events in support of the proof of malice is a matter about which it is unnecessary for me to comment. I also make no comment about whether or not Mr Flowers will in due course be able to establish all or any of the elements of his cause of action including absence of reasonable and probable cause, whether the defendant acted maliciously in initiating and maintaining the proceedings against him, whether they were terminated in his favour and whether any damage sustained by him is referable to the conduct of which he complains.
By reason of the need clearly and precisely to plead these matters in some detail, the production of a statement of claim properly formulating a cause of action alleging malicious prosecution is attended by some technicalities that need to be observed. Mr Flowers' pleadings in his District Court litigation would seem to have met the required standard. The same unfortunately cannot be said of the amended statement of claim in the present proceedings. That document is wholly unsatisfactory and completely unacceptable as a pleading to which any defendant ought to be required to respond.
For example, Mr Flowers alleges that there have been Australian and international human rights breaches by the NSW Police spanning 14 years. These include various breaches of the Universal Declaration of Human Rights, the Human Rights Act 1998 (UK), the Queensland Human Rights Act 2019, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It is not apparent from the amended statement of claim how these various enactments or treaties inform or support the existence of a viable cause of action against the present defendant.
I was temporarily optimistic that a precise and appropriately directed response to the defendant's request for further and better particulars might have salvaged the current pleading by providing what would in effect have been a key or roadmap to understanding how Mr Flowers purports to make out his case arising out of the Bathurst confrontation. Far from doing so, the latest response only muddies the litigious waters even further. The document is in the form of a bound volume some 88 pages in length, replete with attachments or annexures including photographs, copies of letters and newspaper tear sheets. It is simply not possible without reproducing the document in full to give a precise or accurate description or summary of what it contains.
Moreover, as the defendant correctly observes, the current pleading is substantially based upon earlier events that were litigated to finality. Mr Flowers simply cannot expect to raise these events again: see, for example, the remarks of Gageler J in Plaintiff S3-2013 v Minister for Immigration and Citizenship (2013) 297 ALR 560; [2013] HCA 22 at [11].
In this last respect I note that Mr Flowers specifically alleges that the Bathurst police were aware of the fact that he had obtained a judgment against the NSW Police Service in the District Court proceedings and that the Bathurst police "were seeking active revenge against [him] for bringing [the] previous law suit against them". As I have observed, Mr Flowers may well wish to particularise an allegation of malice relying upon what he appears to allege is a course of conduct in the nature of a vendetta against him. However, well before that occurs, Mr Flowers must formulate his claims in a proper way, pleading the elements of the cause or causes of action upon which he wishes to rely.
The current pleading is embarrassing: see McGuirk v University of New South Wales [2009] NSWSC 1424 at [30]-[32]; Shelton v National Roads & Motorists Association Ltd [2004] FCA 1393 at [18]; Bartlett v Swan Television & Radio Broadcasters Pty Ltd [1995] FCA 1429. It is not in proper form. It does not currently plead a cause of action in a way that gives the defendant a reasonable idea of everything it is that the defendant is required to meet.
I accept that it is tolerably clear that the Bathurst events and the Local Court criminal proceedings that they generated are at the heart of Mr Flowers' concerns. For this reason, at this stage, I am not prepared to say - perhaps with an unjustified and even ill-advised capitulation on my part to fond hope over painful experience - that Mr Flowers might not with some professional assistance be able to produce a pleading to which the defendant would be unambiguously required to respond. I am certainly not prepared to permit the current pleading to stand in its present form: no attempt to cherry pick the healthy parts and to discard those in a state of incipient collapse could possibly resuscitate the current moribund document. Mr Flowers might possibly, even without assistance, be able to draw upon his statement of claim in the earlier District Court proceedings as a source of some useful inspiration in this context.
In the circumstances, I will make the following orders:
1. Strike out the amended statement of claim filed on 27 May 2019.
2. Grant liberty to the plaintiff within 28 days if so advised to file and serve any proposed further amended statement of claim upon which he intends to rely.
3. Grant liberty to the parties to apply to me by arrangement with my Associate on 48 hours' notice.
4. Reserve costs.
[6]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 29 October 2019