HIS HONOUR: Before the Court is a motion filed by the plaintiff on 3 December 2020 seeking, essentially, an adjournment of these proceedings and the vacation of the hearing dates that were ordered by the Registrar on 21 October 2020, commencing today. The basis for that application, as stated in the motion, is or relates to four matters. The first one relates to errors or mis-recordings, either deliberate or otherwise, in the transcripts of proceedings before this Court as presently constituted and otherwise constituted.
The second aspect is that physical access be granted to what is referred to as a closed file being matter number 2018/348865 (hereinafter "the closed file"). The third aspect is provision of the identity of the person who closed the file just mentioned and the last matter is a claim that the Court acknowledge that it is bound by the Rome Statute of the International Criminal Court (hereinafter the "Rome Statute"), [1] in particular, article 7, Crimes against Humanity.
I deal with it in a number of ways. On the face of it, the transcript of the proceedings before the Court as otherwise constituted in certain directions hearings does not seem to be relevant to anything I have to deal with and what happened, other than the outcome, does not seem to be particularly relevant to anything the Court is now required to deal with in the substantive hearing.
Flowers v State of New South Wales [2021] NSWSC 317 | Case summary | Zoe
The fourth matter, that is the applicability of the Rome Statute, article 7 thereof, and the binding nature of any of rulings of the International Criminal Court, is a matter that is not preliminary to any substantive issue with which the Court is required to deal pursuant to the allocation of the matter for substantive hearing.
That leaves the second and third prayers for relief, being the physical access to the closed file and the provision of the identity of the person who closed it. Frankly, I am unaware of the precise identity of the person who placed the sticker on the file that it was closed.
It is sufficient for present purposes to remark that the plaintiff filed a Summons in 2018 which is a Summons bearing the file number 2018/348865, to which the plaintiff has referred, seeking preliminary discovery of certain matters. On 3 May 2019, Harrison J, a judge of this Court, dealing with interlocutory or preliminary matters, made orders, the effect of which were to dismiss the Summons filed by Mr Flowers for preliminary discovery, to order that the costs for the Summons be costs in the cause of the matter now before the Court, that is, the substantive matter, and other ancillary matters relating to referral for pro bono advice and standing the matter over for further directions.
It seems that the closing of the file is a consequence of the orders made by Harrison J. That is certainly, from my knowledge of the administration of the Court, that which would ordinarily follow.
As earlier mentioned in these proceedings, this matter was listed by order of the Registrar which order was made on 21 October 2020. It is now the last week of March 2021 and the matter has been before the Court on a number of occasions from which certain interlocutory relief was made or refused. The first application was dealt with by Harrison J in Flowers v the State of New South Wales [2019] NSWSC 1308, giving it its medium neutral citation, in which his Honour Harrison J was required to deal with competing motions. One of the applications before his Honour was to seek the disqualification of his Honour and trial by jury. The defendant sought the striking out of the statement of claim and certain orders were made attempting to resolve those problems or the problems that were perceived by his Honour in the pleadings, inter alia by the provision of particulars. There is no complaint at the moment about the failure to provide those particulars.
In the second judgment, [2] also by Harrison J, his Honour struck out the Amended Statement of Claim with liberty to re-plead.
The third judgment [3] dealt with by Harrison J, again, gave the plaintiff a further opportunity to support his application for trial by jury and the fourth judgment, [4] dealt with by Harrison J, was to dismiss the plaintiff's application for trial by jury and to dismiss the application that his Honour disqualify himself, notwithstanding that his Honour is not hearing the matter, in any event. So, it probably matters very little.
There was a further application dealt with by Bellew J of this Court [5] in which his Honour refused the plaintiff's application for leave to, amend, or further leave to amend the pleadings that were filed. My understanding from the file is that no appeal or application for leave to appeal has been filed in relation to any of those matters. They were interlocutory matters. Nevertheless, it is important to deal with the procedural issues and put them on the record, again.
During the course of the discussion with Mr Flowers, it has become clear that the material upon which Mr Flowers was seeking to rely and that, on his recollection and/or knowledge, was filed in what has been called the closed proceedings, is material that, largely, if not totally, is before the Court or is sought to be before the Court and is contained in the court books which have been filed and compiled, seemingly by cooperation between the parties, but physically compiled, it seems, by the State of New South Wales, the defendant, in the proceedings.
Whether or not all of the material is in Volume 1 and Volume 2 of the Court Book, and there is to be, I am informed, some argument as to whether all of that material is admissible and/or relevant, it is also clear from that which has fallen from Mr Flowers, that all of the material that was filed in the closed proceedings is material which Mr Flowers had available to him at all times since the filing of that material in the closed proceedings and, at least, since Tuesday of last week in the form of the Court Books which were served on Mr Flowers at the same time or shortly after they were filed with the Court.
As a consequence of that information being available to him, to the extent that the material in the closed file is not, in fact, in the Court Book, that is Volume 1 and Volume 2 of the Court Book, the plaintiff could have attached that information and sought to file it in the substantive proceedings, being the proceeding on the Statement of Claim.
I am mindful that the Court is under an obligation, pursuant to the terms of s 56 of the Civil Procedure Act 2005 (NSW), to seek to obtain and/or to facilitate a just, quick and cheap resolution of the real issues between the parties. Those are the issues that are defined by the pleadings in a matter.
In order to obtain a just result, which is a matter dealt with in sections following s 56 of the Civil Procedure Act, one of the procedures is to adhere to the principles of procedural fairness. Those principles of procedural fairness require the Court, as they require any decision-maker that is required to deal with proceedings or matters judicially, to ensure that the parties to the proceedings have a reasonable opportunity to prepare and to present that which they wish to put before the Court.
It is not a task of the Court to ensure that the parties make best use of that opportunity provided. To the extent that authority is required for such a proposition, I refer to the judgment of his Honour Justice Deane, then a judge of the Federal Court of Australia, as part of the Full Court in Sullivan v Department of Transport (1978) 20 ALR 323; [1978] FCA 48. The particular passage to which I refer is, from memory, at page 343 of the report.
It seems on the material that has fallen from Mr Flowers and the discussion which I have had with him, and I make no criticism of Mr Flowers or anyone else in this regard; that Mr Flowers has had the opportunity, and a reasonable opportunity, to present whatever it is he wants to present, and is able to present to the Court in relation to this substantive claim. That is because he had available to him all of the material that was otherwise available in the the closed file. As a consequence, the identity of the person who closed the file and the requirement or need to have access to the file, seem to be irrelevant or immaterial in relation to whether or not the proceedings listed today can proceed on the substantive application.
It would be, in terms of an application for adjournment or vacation of the dates, a denial of procedural fairness if a proper opportunity to prepare and present the case had not been given to the plaintiff. I do not consider on the material before me that such a proper opportunity has been denied to the plaintiff.
As a consequence, I do not consider that it is necessary or appropriate to adjourn the proceedings or vacate the hearing dates that have been listed. I am mindful of the fact that the matter has been listed since October of 2020, and the parties have had five months in which to prepare for the proceedings today, knowing that this date had been set down, as have the remainder of the week.
There are two other matters. The plaintiff, in the course of his oral submissions, raises the inability to amend his proceedings as a consequence of that which was heard by his Honour Justice Bellew. I have seen no material, and am unaware of any reason why I should or could revisit the orders and judgment of Bellew J. There has been no appeal or application for leave to appeal that order.
Similarly, I see no reason to revisit the orders of his Honour Justice Harrison as to trial by jury, and nothing is before the Court as presently constituted as to why that should be revisited. Likewise as I have already stated, there has been no appeal or application for leave to appeal those orders.
As a consequence of the foregoing, it seems to me the motion, the effect of which is to vacate the hearing dates otherwise set down for today and the remainder of the week, should be dismissed, and the motion is dismissed. The matter will proceed.
[3]
Endnotes
Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).
Flowers v State of New South Wales [2019] NSWSC 1467.
Flowers v State of New South Wales [2020] NSWSC 526.
Flowers v State of New South Wales [2020] NSWSC 883.
Flowers v State of NSW [2020] NSWSC 1390.
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Decision last updated: 31 March 2021