Flowers v State of New South Wales - [2021] NSWSC 887 - NSWSC 2021 case summary — Zoe

NSWNSWSC

Flowers v State of New South Wales

[2021] NSWSC 887

Supreme Court of NSW|2021-03-29|Before: Rothman J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2021-03-29

Before

Rothman J

Catchwords

[2007] HCA 10 Australian Capital Territory v Crowley (2012) 7 ACTLR 142
[2012] ACTCA 52 Beckett v New South Wales (2013) 248 CLR 432
[2013] HCA 17 Bonham's Case (1610) Cabassi v Vila (1940) 64 CLR 130
[1940] HCA 41 Clavel v Savage [2013] NSWSC 775 Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343

Source

Original judgment source is linked above.

Catchwords

[2007] HCA 10 Australian Capital Territory v Crowley (2012) 7 ACTLR 142[2012] ACTCA 52 Beckett v New South Wales (2013) 248 CLR 432[2013] HCA 17 Bonham's Case (1610) Cabassi v Vila (1940) 64 CLR 130[1940] HCA 41 Clavel v Savage [2013] NSWSC 775 Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343[1935] HCA 30 Cran v State of New South Wales (2004) 62 NSWLR 95[2004] NSWCA 92 Cumming v State of New South Wales [2008] NSWSC 690 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1[2005] HCA 12 Dunlop v Woollahra Municipal Council [1982] AC 158 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337[1999] FCA 773 Forster v MacDonald (1995) 127 DLR (4th) 185 GAS v The Queen (2004) 217 CLR 198[2004] HCA 22 Gesah v Ross [2013] VSC 165 Goldsmith v Sperrings Ltd [1977] 1 WLR 478[1977] 2 All ER 566 Grant v Australian Knitting Mills Ltd (1935) 54 CLR 49[1935] UKPCHCA 1 Green v The QueenQuinn v The Queen (2011) 244 CLR 462[2011] HCA 49 Gregory v Portsmouth City Council [2000] 1 AC 419(2000) UKHL 3 Groom v State of South Australia [2017] SASEFC 35 Halech v State of South Australia (2006) 93 SASR 427

Judgment (14 paragraphs)

[1]

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Kable v State of New South Wales (2010) 203 A Crim R 66; [2010] NSWSC 811 Kirk v Industrial Court of New South Wales (2009) 239 CLR 531; [2010] HCA 1 Le Lievre v Gould [1893] 1 QB 491 Little v The Law Institute of Victoria [1990] VR 257 Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 292; [1983] HCA 17 Meissner v the Queen (1995) 184 CLR 132; [1995] HCA 41 Munnings v Australian Government Solicitor (1994) 68 ALJR 169; [1994] HCA 65 New South Wales v Klein (2006) Aust Torts Reports 81-862; [2006] NSWCA 295 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; [2004] HCA 31 Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65 QIW Retailers Ltd v Felview Pty Ltd (1989) 7 ACLC 510; [1989] 2 Qd R 245 Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674 Quintano v State of New South Wales [2002] NSWSC 766 R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; [1953] HCA 22 R v Skinner (1772) Lofft 54; 98 ER 529 R v Watson; Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39 Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 Re Patterson; ex parte Taylor (2001) 207 CLR 391; [2001] HCA 51 Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78; [1991] HCA 31 Rickard v State of New South Wales [2010] NSWSC 151 Rush v Commissioner of Police (2006) 150 FCR 165; [2006] FCA 12 S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 Saif Ali v Sydney Mitchell & Co [1980] AC 198 Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28; [2003] HCA 72 Sirros v Moore [1975] 1 QB 118 Spautz v Gibbs (1990) 21 NSWLR 230 State of New South Wales v Landini [2010] NSWCA 157 State of Victoria v Richards (2010) 27 VR 343; [2010] VSCA 113 Sue v Hill (1999) 199 CLR 462; [1999] HCA 30 Varawa v Howard Smith Co Ltd (1911) 13 CLR 35; [1911] HCA 46 Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 Wilson v State of New South Wales [2001] NSWSC 869; 53 NSWLR 407 Zalewski v Turcarolo [1995] 2 VR 562 Texts Cited: Sappideen & Vines, Fleming's The Law of Torts (10th ed, 2011, Lawbook Co) Year Book, 20 Hen. VI, 10; Vin. Abr. Tit. "Privilege" Category: Principal judgment Parties: Mark Stephen Flowers (Plaintiff/Applicant) State of New South Wales (Defendant/Respondent) Representation: Counsel: Self Represented (Plaintiff/Applicant) A Williams (Defendant/Respondent)

[2]

Solicitors: Self Represented (Plaintiff/Applicant) McCabe Curwood (Defendant/Respondent) File Number(s): 2019/117371

[3]

Judgment

HIS HONOUR: On 15 November 2019, the plaintiff, Mr Mark Stephen Flowers, filed a Further Amended Statement of Claim in which the State of New South Wales, the defendant, was sued pursuant to the Law Reform (Vicarious Liability) Act 1983 (NSW) and/or the Crown Proceedings Act 1988 (NSW), as the legally responsible person in relation to police officers, who were said to have misconducted themselves, thereby causing damage to Mr Flowers. The matter was listed for hearing with an estimate of five days, commencing 22 March 2021, but the evidence did not conclude in the five days allocated.
Further hearings occurred on 29 March 2021, 23 April 2021, 27 April 2021 and 28 April 2021 at which evidence was adduced. By agreement between the parties, submissions were dealt with in writing.
On 11 May 2021, the Court dealt with an application that the Court, as presently constituted, be disqualified from the hearing of the matter. There was also another application for trial by jury.
That Motion was dismissed, ex tempore, and the reasons for judgment on the disqualification application were reserved to be issued with the reasons for judgment in the substantive matter. The timetable for the written submissions on the substantive proceedings was to conclude on 15 June 2021.

[4]

Nature of proceedings

The plaintiff was self-represented and, in the pleadings, there is a degree of imprecision that the Court has generally overlooked. The foregoing is not a criticism of the plaintiff, who showed himself to be both intelligent and articulate.
Those aspects of the Further Amended Statement of Claim that disclose a cause of action seem to be in the following category: 1. malicious prosecution; 2. collateral abuse of process; and 3. negligence.
The last-mentioned cause of action is not the subject of the express reference in the Further Amended Statement of Claim. However, the plaintiff alleges that the relevant police officers were under a duty to take reasonable care to avoid or minimise the risk to the plaintiff of suffering further emotional or mental harm, and, implicitly at least, it was breached.
Further, there is a reference to perverting the course of justice, which is a criminal offence. This is a civil proceeding and these reasons for judgment do not seek to deal with the commission of a criminal offence, other than as an allegation giving rise to civil liability.
Nevertheless, I have taken that reference to include collateral abuse of process, referred to above. The elements of the causes of action will be dealt with later in these reasons. It is necessary, prior thereto, to deal with the reasons for judgment in rejecting the application that I disqualify myself on the basis of bias or perceived bias, together with the renewed application for trial by jury.

[5]

Bias and other issues on the Motion

By Motion, dated 5 May 2021, the plaintiff moved for three orders in the following terms: 1. "THAT the trial commencing on the 22nd [sic] March 2021 in the Supreme Court of New South Wales Sydney under [sic] Justice Rothman be declared a mistrial for 'Section 317 crime Act' [sic] participation by State and Court. 2. THAT these proceedings be tried by a jury in the interests of justice pursuant to s.85 of the Supreme Court Act 1970 No 52. 3. THAT the Hon Justice Stephen Rothman AM recuse himself for bias and Want of Jurisdiction."
An Affidavit was filed in support of the Motion. That Affidavit need not be recited but refers to the following circumstances or beliefs: 1. A belief by the plaintiff that his claim against the defendant "must be heard and judged by a Jury as the only acceptable and lawful tribunal in the interests of justice according to the Rule of Law and Due Process in the preservation of [his] inalienable rights and the appropriate punishment of wrongs committed against [him] and society". The plaintiff asserts, in support thereof, that he has not given "his consent" to be without a jury which "unequivocally" deprives the Court of any jurisdiction to proceed summarily. 2. A belief that any judicial officer "who has swore [sic] an Oath or Affirmation of Allegiance to 'well and truly serve' the Crown cannot judge a case against the Crown and to say it would be a 'conflict of interest' is all too obvious". 3. The claim against the State of New South Wales is a proceeding against the Crown. 4. The subject matter of the plaintiff's claim against the State of New South Wales arises from "accusations of torts and criminal offences committed by persons in the service of the Crown" and the presiding judge commented that "no one is going to prison in this matter, that it was a civil matter regardless of any crimes uncovered". 5. That the presiding judge said "[the plaintiff] owe[d] an apology to the State of New South Wales". 6. That "the Supreme Court has failed to administer justice and is accused of blatant collusion with the State of NSW". 7. "The Supreme Court of New South Wales has participated in collusion with the State of NSW in a 'section 317 crime Act' [sic] commencing on 22 March 2021 under Justice Rothman". 8. The Supreme Court of New South Wales has "conspired to conceal closed file, which was closed without judgment, being file 2018/348865". 9. The presiding judge on 22 March 2021 "failed to hear or give any fair hearing of the filed grounds" relating to "TRANSCRIPT FRAUD", "conspiracy to conceal", "extra judicial killings and torture, and more most [sic] serious perversion of the course malicious prosecution to maintain this conspiracy". 10. On 22 March 2021, the presiding judge failed to appropriately deal with a motion of 3 December 2020 "seeking clear explanation" for "concealing the main evidence in this case filed on 15/4/2019 then archived to be hidden by the court" at which point the trial "should of [sic] been adjourned" and the presiding judge acted "in collusion with the state he is not impartial". 11. A list of concerns, which is not repeated but is contained in [14] of the aforesaid Affidavit and particularised in letters thereafter.

[6]

Principles on perceived bias

The general principle is that a judge should not hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions involved in it. [1] It is inappropriate for a judicial officer to take "the easy option" and accede to such an application without coming to the conclusion that it is necessary. Judicial officers (and most members of most tribunals) are under a duty to hear and determine matters allocated to them. [2]
The avoidance of "the easy option" is best illustrated by the judgment of the High Court in Re Polites, supra. There, a Deputy President of the Australian Industrial Relations Commission, who had provided advice, on the issue to be determined by the Commission, to a party to the proceedings before the Commission, disqualified himself on the basis that there was a reasonable apprehension that he could not bring an impartial mind to the determination of the issues in the proceedings. The High Court determined that he was required, in the circumstances, to sit, to hear and to determine the proceedings allocated to him as a member of the Full Bench hearing the appeal. The High Court issued mandamus to achieve that result.
As tempting as it may be, in some cases, to avoid presiding over a particular case by acceding to an application to disqualify, fundamentally the judicial officer's duty and oath of office requires the judicial officer to preside over those matters allocated to the judicial officer, unless the law and/or some factual circumstance that emerges prevents it.
The law would prevent it if there would be a reasonable apprehension of bias. That requires that a fair-minded lay observer, properly informed, might reasonably apprehend that the judicial officer might not bring an impartial mind to the resolution of the issues in the proceedings. [3]
In Ebner, supra, the High Court [4] outlined the philosophy that underpinned the principle, when it said: "The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed."

[7]

Factual circumstances relating to application for disqualification and other issues on the Motion

The first aspect that needs clarification is the reliance, by the plaintiff, upon the provisions of s 317 of the Crimes Act 1900 (NSW). As would be suspected, s 317 of the Crimes Act establishes an offence, the maximum penalty for which is 10 years' imprisonment. The offence is generally known as tampering with evidence. It is in the following terms: "317 TAMPERING ETC WITH EVIDENCE A person who, with intent to mislead any judicial tribunal in any judicial proceeding: (a) suppresses, conceals, destroys, alters or falsifies anything knowing that it is or may be required as evidence in any judicial proceeding, or (b) fabricates false evidence (other than by perjury or suborning perjury), or (c) knowingly makes use of fabricated false evidence, is liable to penal servitude for 10 years."
The first aspect is that whatever conduct is said to be, or amount to those matters described in paragraphs (a), (b) and (c) of s 317 of the Crimes Act, it is necessary for that conduct to be engaged in with a particular intent, namely, "to mislead any judicial tribunal in any judicial proceeding". It is difficult to envisage, even if it were otherwise relevant, how the conduct of a judicial officer in a proceeding would ever amount to conduct that was done with an intent to mislead the judicial tribunal in the judicial proceeding over which the relevant judicial officer is presiding.
Secondly, the offence relates to the suppression, concealment, destruction, alteration and falsification of anything that may be required as evidence. As I understand the submission on this question, that which is said to be falsified et cetera was a transcript of proceedings in an interlocutory application.
On its face, such transcript would not, ordinarily, be required as evidence in any judicial proceeding. That comment relates to that which would be covered by each of the paragraphs to s 317 of the Crimes Act. The reliance by the plaintiff, on the provisions of s 317 in relation to conduct of the Court, or a particular judicial officer, is misplaced.
Consideration of Motion
Nevertheless, I will seek to deal, as best as I can, with the matters that have been raised by the plaintiff in relation to this application. It is necessary, without rehearsing the reasons already provided in other interlocutory judgments delivered in these proceedings by the Court as currently and otherwise constituted, to deal with the allegation that the plaintiff did not consent to the hearing dates or to a trial without jury.

[8]

Underlying proceedings

Some of the circumstances surrounding the underlying proceedings about which the plaintiff complains are, relatively, uncontroversial. By way of background, it is necessary to point out that Mr Flowers previously sued the New South Wales Police. Those proceedings were resolved favourably to the plaintiff and judgment entered against the State of New South Wales. Further, the plaintiff alleges that an officer of the police from the northern suburbs of Sydney was involved in a relationship with the plaintiff's wife.
The foregoing comments do not seem to impact upon the major issues raised by Mr Flowers, the plaintiff, in the current proceedings. The matters of complaint in these proceedings relate, essentially, to the conduct of officers stationed at, or operating from, Bathurst Police Station.
The substantive issues relate to charges preferred against the plaintiff for negligent driving and assault against a former neighbour, Mr Frost; an Apprehended Violence Order (hereinafter "AVO") in which the alleged person in need of protection was the same Mr Frost; and a charge, if that be an appropriate description of a Traffic Infringement Notice, of failing to exchange particulars, arising from a collision between the plaintiff and a vehicle in a car park.
After hearing, the assault charges were dismissed; and the negligent driving charge was the subject of a finding of guilt, with no conviction recorded and no other penalty imposed. The AVO was withdrawn, when the assault was dismissed; and the charge and/or traffic offence of failing to exchange particulars was the subject of a penalty notice and the penalty was paid by the plaintiff.
The plaintiff alleges that each of the foregoing was the result of malice on the part of relevant police officers, being those officers with primary responsibility for the investigation and/or charging or recommendation for charging of the plaintiff and, in the case of the assault, the charge of negligent driving and the AVO, the police prosecutor who had carriage of the matter in the Local Court at Bathurst.

[9]

The assault and negligent driving charges

On 14 March 2016, the plaintiff lived in premises at Fitzgeralds Mount, approximately 25 km from Bathurst. One of his neighbours and/or a person living in the nearby vicinity, was Mr Frost.
Apparently, sometime before 14 March 2016, Mr Flowers had complained of gunfire, or noises that sounded like gunfire, emanating from an area near his residence. Apparently, there was a sign on the property occupied by Mr Frost that it was used for the discharge of firearms.
The complaint in relation to the firing of the firearms was not, on the allegation of Mr Flowers, which, for present purposes, I accept, investigated in any significant manner and no steps were taken by the Police to deal with what was alleged to be the conduct of Mr Frost.
On 14 March 2016, the plaintiff drove his vehicle from his residence at Fitzgeralds Mount. Put as neutrally as possible, there was a collision between the vehicle being driven by the plaintiff and a vehicle driven by Mr Frost. Police were called.
The police officers, Senior Constables Lodge and Hughes, attended the scene. One of the officers took a statement from the plaintiff. The other officer took a statement from Mr Frost.
The plaintiff alleges, and I accept it to be the case, that at some point Mr Frost leaned into the vehicle that had been driven by the plaintiff, removed the car keys that were in the ignition, and threw them into the bush on the side of the road.
When the police officers arrived, they, together with Mr Frost, searched for the keys that had been thrown into the bush and, after some time, the keys were located and returned to the plaintiff. On the evidence before the Court, it is more probable than not that the keys were located by Senior Constable Lodge.
As earlier stated, the plaintiff gave to a police officer an account of the events leading up to and causing the collision and the events subsequent to the collision. Mr Flowers did not sign the statement, but the statement is in evidence. Mr Flowers was informed that he could leave the scene of the collision, which he did.
As already stated, a statement was also obtained from Mr Frost. Mr Frost is not a police officer or any person for whom the State of New South Wales, the defendant in these proceedings, has legal responsibility.

[10]

The context of malicious prosecution and other causes of action

For centuries the common law has provided immunity from suit for conduct performed in the course of litigation by a variety of actors. That immunity provides a privilege of exemption from civil process.
Thus, a party or witness, at common law, was granted immunity from civil process for those things done in the course of that litigation or civil process. The history of this immunity is extremely ancient and, on my research, was first mentioned in the Year Book of Henry VI. [29]
The rule is based upon public policy and is almost universally recognised within the common law world. It exists independent of statutory exemption from liability and is seen to be a necessary aspect of the due administration of justice.
Historically, its origin stems from a time when persons were arrested in order to obtain surety upon the grant of bail to ensure their attendance at the particular Assizes, which, otherwise, had no power to require attendance.
Nevertheless, the public policy basis for the immunity has been emphasised, usually in respect to legal practitioners and witnesses, on a number of occasions. The immunity runs against civil process for that which is said to have been done in the course of civil proceedings. The immunity is subject to a number of specified exceptions: malicious prosecution; collateral abuse of process; and certain criminal offences arising from the conduct at trial, such as perjury, contempt of court and the like.
The rationale underpinning the immunity is consistent across all those engaged in the civil process, including jurors, judges, advocates and witnesses. It also applies to complainants.
It was the subject of discussion by the High Court in the context of barrister's immunity. [30] Notwithstanding that the High Court was, in those proceedings, referring to an advocate's immunity, an advocate's immunity from liability is, as earlier stated, part of the general immunity from civil liability that attaches to all persons in respect of their participation in proceedings before a court. This immunity runs to judges, jurors, court officials, witnesses, parties, counsel and solicitors. [31]
In discussing the immunity, albeit in relation to an advocate, the High Court [32] said: "[31] In Giannarelli, Mason CJ said that 'the barrister's immunity, if it is to be sustained, must rest on considerations of public policy'. His Honour explained that the term 'immunity' was used in a sense which assumed that rights and duties might otherwise exist at common law, but the immunity is sustained on considerations of public policy and 'the injury to the public interest that would arise in the absence of immunity'. Of the various factors advanced to justify the immunity, 'the adverse consequences for the administration of justice which would flow from the re‑litigation in collateral proceedings for negligence of issues determined in the principal proceedings' (emphasis added) was held to be determinative. The significance of the reference to the administration of justice is of fundamental importance to the proper understanding of the immunity and its foundation. [32] To adopt the language found in the cases considering Ch III of the Constitution, the central concern of the exercise of judicial power is the quelling of controversies. Judicial power is exercised as an element of the government of society and its aims are wider than, and more important than, the concerns of the particular parties to the controversy in question, be they private persons, corporations, polities, or the community as personified in the Crown or represented by a Director of Public Prosecutions. No doubt the immediate parties to a controversy are very interested in the way in which it is resolved. But the community at large has a vital interest in the final quelling of that controversy. And that is why reference to the 'judicial branch of government' is more than a mere collocation of words designed to instil respect for the judiciary. It reflects a fundamental observation about the way in which this society is governed. [33] As s 71 of the Constitution says, what is 'vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction' is the judicial power of the Commonwealth, that is, the judicial power of the national polity. No matter whether the judicial branch of government is separated from the other branches of government (as it is and must be at the federal level but, at least generally, is not at the State level) it is, in Quick and Garran's words, 'the third great department of government'. Finality [34] A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding. [35] The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so‑called 'fresh evidence rule') are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: '[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial'. [36] The rules based on the need for finality of judicial determination are not confined to rules like those mentioned above. Those are rules which operate between the parties to a proceeding that has been determined. Other rules of law, which affect persons other than the parties to the original proceeding, also find their justification in considerations of the need for finality in judicial decisions. And some of those rules are rules of immunity from suit. Other immunities from suit [37] Parties who fail in litigation, whatever its subject, may well consider the result of that litigation to be wrong, even unjust. Seldom will a party have contested litigation without believing, or at least hoping, that it will be resolved in that party's favour. If that party does not succeed, an explanation for failure may be sought in what are perceived to be the failures of others - the judge, the witnesses, advocates - anyone other than the party whose case has been rejected. [38] This is no new phenomenon. It is a problem with which the common law has had to grapple for centuries. Its response has been the development of immunities from suit for witnesses, judges and advocates. The origin of these rules can be traced to decisions of the 16th and 17th centuries. [39] From as early as the 16th century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps. That the immunity must be pleaded as a defence makes it nonetheless an immunity from suit. As the whole Court said in Lange v Australian Broadcasting Corporation: 'The result [of the defence] is to confer upon defendants, who choose to plead and establish an appropriate defence, an immunity to action brought against them.' (footnote omitted)." (Footnotes omitted.) [33]

[11]

Evidence

As can be seen from the brief summary earlier in these reasons, the initial event, from which impugned proceedings arose, was the motor vehicle collision that occurred at or near the plaintiff's residence. The driver of the other vehicle was, as has been stated, Mr Frost. Mr Frost did not give oral evidence in the proceedings before the Court.
The plaintiff, Mr Flowers, filed Affidavits and was cross-examined. Oral evidence was adduced from Senior Constable Hughes; Senior Constable Jessica Lodge; Sergeant Simon Robinson; Senior Constable Mark Simpson; Senior Constable Matthew Holden; Sergeant Darren Pearce; and Senior Constable Michael Costelloe.
The Affidavits sworn by Mr Flowers contain a number of assertions and some facts. They also attach documents, some of which are relevant to the merits of the proceedings that were conducted before the magistrate in Bathurst Local Court and which have been impugned in these proceedings.
The Joint Court Books consist of Affidavits of the plaintiff, sworn: 15 April 2019; 2 May 2019; 6 August 2019; 9 August 2019; two Affidavits of 13 August 2019;; 11 September 2020; 4 February 2021; 18 February 2021; 1 March 2021; and three Affidavits of 9 March 2021, entitled First, Second and Third Affidavit respectively.
A document, Marked for Identification 2 in the proceeding, sets out the material upon which the plaintiff asserts he relies. That material includes a Statement of Claim and Affidavit in file number 2018/00348865; an Affidavit of David Hugh Porter sworn 7 November 2018; Discovery Summons filed by David Hugh Porter on 22 November 2018 in file number 2018/00348865; a Further Amended Statement of Claim in file number 2019/00117371 of 15 November 2019; an Affidavit of Special Circumstances filed 13 August 2019; an Affidavit of Apprehension of Bias sworn 13 August 2019; a Requisition for Trial by Jury filed 13 August 2019; an Affidavit as to the Right to Trial by Jury sworn 9 August 2019; a Notice of Motion filed 9 August 2019; a Notice of a Constitutional Matter, pursuant to s 78B of the Judiciary Act, of 19 July 2019; a Reply to Particulars of 2 July 2019; an Amended Statement of Claim of 27 May 2019; an Affidavit, already specified previously, going to requirement for a jury, of 2 May 2019; an Amended Statement of Claim sought to be relied upon, dated 27 May 2019; an Amended Reply to Further and Better Particulars Requested by the Defendant dated 21 October 2019; Particulars requested by the defendant dated 20 January 2020; a Notice of Motion dated 22 June 2020; an Affidavit and Application for Disqualification dated 22 June 2020; a Notice of Motion seeking amendments to the Statement of Claim and Affidavit in support thereof, each dated 11 September 2020; a marked up version of the Amended Statement of Claim and the Submissions of the plaintiff before Justice Harrison relating to trial by jury; a Notice of Motion alleging fraud in the Transcript of 3 December 2020 and an Affidavit in support thereof; an Affidavit alleging injury of post-traumatic stress disorder and torture by the State of New South Wales of 4 February 2021; an Affidavit relating to the perverting of the course of justice dated 1 March 2021; an Affidavit setting out a witness list for subpoena dated 9 March 2021; an Affidavit regarding denial of full discovery by the defendant dated 9 March 2021; an Affidavit relating to material completing an earlier Affidavit of 19 April 2016, dated 9 March 2021; an Affidavit relating to an allegation of false instrument dated 15 March 2021; an Affidavit relating to the denial of subpoena dated 15 March 2021; and an Affidavit relating to the absence of consent to the hearing that had been listed dated 17 March 2021.

[12]

Conclusions of fact

There are a number of facts, most of which are clear from the foregoing. Mr Flowers was involved in an incident on 14 March 2016 with Mr Frost. The circumstances of that incident are controversial.
Mr Frost alleged an assault and proved that he suffered injuries, the details of which are recited above. Mr Flowers alleges that the injuries were inflicted in self-defence, Mr Frost having thrown the first punches and behaved aggressively. Mr Flowers says he punched Mr Frost once. Yet there were two distinct injuries to Mr Frost: one to the ear; and one to the lip.
In these proceedings, Mr Frost did not give evidence. The proceedings were resolved, in relation to the charge of assault occasioning actual bodily harm, in a manner that was favourable to the plaintiff, Mr Flowers. As a consequence, that element of the requirements to show a good cause of action for malicious prosecution, in relation to the assault occasioning actual bodily harm, has been satisfied.
For present purposes, and bearing in mind that the Court has not heard Mr Frost, the Court accepts that Mr Flowers acted in self-defence.
Further, the AVO proceedings, if they are proceedings for which malicious prosecution will run, resolved favourably for Mr Flowers. Again, assuming AVO proceedings are proceedings for which malicious prosecution can be maintained, that element of the cause of action for malicious prosecution is satisfied in relation to the AVO proceedings.
On one view of the outcome for the negligent driving offence that was said to have occurred on 14 March 2016, it resolved favourably to the plaintiff. However, it did not resolve favourably in the sense utilised for the purpose of the element necessary for the maintenance of proceedings for malicious prosecution.
In the negligent driving proceedings, as already indicated, the magistrate found Mr Flowers guilty. The magistrate then dealt favourably with Mr Flowers in not recording a conviction and dismissing the proceedings without conviction and without penalty. That was done under s 10 of the Crimes (Sentencing Procedure) Act.
Nevertheless, the magistrate found that Mr Flowers was guilty. That finding was based upon the minor collision that occurred when Mr Flowers sought to manoeuvre his vehicle around Mr Frost's vehicle and collided with it, albeit in a minor manner.

[13]

Endnotes

Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 292; [1983] HCA 17; R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 258-263; [1976] HCA 39.
Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; [1986] HCA 39; Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78; [1991] HCA 31.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345; [2000] HCA 63.
Ibid (Gleeson CJ, McHugh, Gummow, and Hayne JJ) at 345, [8].
S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 376 (Kirby P).
Ibid; and Johnson v Johnson (2000) 201 CLR 488 at 509; [2000] HCA 48.
R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116; [1953] HCA 22.
UCPR r 29.2(4).
See Flowers v State of New South Wales [2020] NSWSC 883 and Flowers v State of New South Wales [2020] NSWSC 526.
Flowers v State of New South Wales [2020] NSWSC 526 at [17].
Affidavit of Mark Stephen Flowers 15 April 2019, Joint Court Book, Volume 1 of 2, p 141.
Ibid p 362.
Tcpt, 23 March 2021, p 76(48)-77(14).
Ibid p 78(30)-(50)
Ibid p 78(40).
See generally: J C Holt, Magna Carta (3rd ed, 2015, Cambridge University Press).
Kirk v Industrial Court of New South Wales (2009) 239 CLR 531; [2010] HCA 1.
Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117 at [28]; and in the Canadian context Imperial Oil Ltd v Attorney General of Québec [2003] 2 SCR 624 at 624-625.
Ebner, supra, at [359], [368] and [398].
(1610) 8 Co. Rep. 107a at 118a; (1610) 77 ER 638.
Ibid, (1610) 8 Co. Rep. 107a at 118a; (1610) 77 ER 638 at 652
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49.
Constitution Act 1902 (NSW) s 53(2).
Constitution s 72(ii)
North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; [2004] HCA 31 at [3] (Gleeson CJ).
Isaacson v Durant (1886) 17 QBD 54; Re Patterson; ex parte Taylor (2001) 207 CLR 391 at [224] (Gummow and Hayne JJ); [2001] HCA 51.

[14]

Amendments 22 July 2021 - Typographical error 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: 22 July 2021

The High Court, in A v State of New South Wales, supra, proceeded to discuss the necessary requirements and confinement of a cause of action for malicious prosecution. It said: "[57] There are three features of the present law to which attention should be drawn. First, because questions of malicious prosecution can arise only where the prosecution has ended in the plaintiff's favour, the paradigm case to consider is where the plaintiff has been acquitted of the offence charged. (It is convenient to leave aside what other circumstances suffice to show that the prosecution has ended in the plaintiff's favour, and focus on the paradigm case of acquittal.) That acquittal is not to be controverted. The hypothesis for a subsequent action for malicious prosecution arising from such a case is, therefore, that the plaintiff was not guilty of the offence charged. But that alone does not entitle the plaintiff to a remedy against the prosecutor. [58] Secondly, the inquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful. [59] Thirdly, the action for malicious prosecution has a temporal dimension. To ask whether a prosecution was commenced or maintained without reasonable and probable cause directs attention to the state of affairs when the prosecution was commenced, or when the prosecutor (the defendant in the subsequent civil claim) is alleged to have maintained that prosecution. Moreover, it necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not whatever material may later have come to light." (Footnotes omitted.) [58]

Thus, the absence of reasonable and probable cause may be established either by an absence of the subjective belief as to the case instituted or maintained or objectively by proving the absence of a sufficient basis for such an honest belief. This was expanded in comments of the High Court in the following way: "[58] Secondly, the inquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful. … [70] There are several questions bound up in the proposition that absence of reasonable and probable cause requires an examination of what the prosecution 'made' or 'should have made' of the material available to the prosecutor when he or she decided to prosecute, or to maintain an existing prosecution. As has already been noted, two kinds of inquiry are postulated: one subjective (what the prosecutor made of the available material) and the other objective (what the prosecutor should have made of that material). Does proof of the absence of reasonable and probable cause require proof of the absence of a state of persuasion (a 'belief') in the mind of the prosecutor? What is the subject‑matter of the state of persuasion that is to be considered? Is it a persuasion about the likelihood of a particular outcome of the prosecution (the conviction of the person prosecuted)? Is it a persuasion about what the material considered by the prosecutor reveals ('guilt' or 'probable guilt' of the person prosecuted)? Or is it a persuasion about that material's sufficiency to warrant setting the processes of the criminal law in motion? What, if any, weight may be given by the prosecutor to the existence of various checks and balances, like the interposition of committal proceedings and the assignment of particular functions to the Director of Public Prosecutions, that form an integral part of the system of criminal justice? [71] Those questions should be answered as follows. If the plaintiff alleges that the defendant prosecutor did not have the requisite subjective state of mind when instituting or maintaining the prosecution, that is an allegation about the defendant prosecutor's state of persuasion. The subject‑matter of the relevant state of persuasion in the mind of the prosecutor is the sufficiency of the material then before the prosecutor to warrant setting the processes of the criminal law in motion. If the facts of the particular case are such that the prosecutor may be supposed to know where the truth lies (as was certainly the case in Sharp v Biggs) the relevant state of persuasion will necessarily entail a conclusion (a belief of the prosecutor) about guilt. If, however, the plaintiff alleges that the prosecutor knew or believed some fact that was inconsistent with guilt (as the plaintiff alleged in Mitchell v John Heine) the absence of reasonable and probable cause could also be described (in that kind of case) as the absence of a belief in the guilt of the plaintiff." [71]

The list of annexures includes: the consent judgment to which reference has just been made, of 12 February 2014; an Affidavit filed in the Bathurst Local Court on 19 April 2016 in the proceedings relating to the AVO, of 71 pages; an eight-page Annexure being the Transcript of the Bathurst Local Court AVO sought by Mr Frost; a four page Annexure being submissions of the lawyers, then representing the plaintiff, being submissions to the Bathurst New South Wales Police; a five page annexure being submissions by barrister Justin Sibly to Bathurst New South Wales Police Force; a four page Affidavit being a "comprehensive historic Annexure List believed to demonstrate NSW Police Force and Correctional Services NSW systemic corruption Malfeasance in Public Office Perversion of the Course of Justice by providing the I.A.T. Riot Squad to Surry Hills Police Centre … for the believed intent to torture [the plaintiff] [sic]"; a ten page annexure being a letter dated 11 March 2011 to the Crown Solicitor's Office "explaining Correctional [sic] services failure to provide or comply with original SUBPOENA TO PRODUCE" [sic], which commences with a marked copy of a letter from Crown Solicitor's Office, dated 11 March 2011, [74] and includes a custodial history of two pages, a photograph of the 2006 "C" Watch Log Book, a diary entry of 19 September 2006 to 20 September 2006, and a letter from the plaintiff to Bartier Parry, of three pages; a six page annexure said be a letter to the Crown Solicitor's Office, dated 22 October 2012, relating to breaches of the Evidence Act and relating to alleged torture and perversion of the course of justice; a 14 page annexure being the Amended Statement of Claim in the District Court proceedings to which reference has already been made; a one page annexure relating to an alleged fabricated AVO breach said to have originated at Hornsby New South Wales Police Force; an 11 page annexure, being an amended summary of argument for family law proceedings; a five page annexure, being correspondence between the plaintiff and the Attorney General's Office, including a letter dated 7 May 2006 and replies thereto; a seven page annexure, being a series of allegations against the police force relating to events commencing on 3 May 2010 and seemingly related to deaths in custody; a letter from the plaintiff to the Police Integrity Commission of 14 February 2007; a letter to former Commissioner of Police Scipione, dated 21 June 2011 relating to an alleged death threat made on 5 May 2011; a three page letter, being part of correspondence with the Crown Solicitor, dated 8 December 2010; a historic District Court Affidavit of 20 pages of 18 April 2011, alleging conspiracy by the Police; a two page letter to the New South Wales Police Force Commissioner, dated 4 April 2011, relating to character assassination of two pages; allegations of "ongoing persecution" said to be sanctioned by the New South Wales Police Force of eight pages; evidence of "corrupt psychiatrists" used in the Federal Magistrates Court at Parramatta in a family law matter relating to Family Court proceedings involving the plaintiff and, it seems, dealing with custody; and a nine page annexure, being the report of Dr Westmore, to which earlier reference has been made, in this instance in a redacted form, but otherwise contained in the Joint Court Book in an un-redacted form.

The plaintiff in Annexure A to the affidavit of 15 April 2019 described the collision in the following way, extracted verbatim: "As I approached great Western hwy on the Kellys rd a White sedan 4 door raised style, was coming in the opposite direction we passed each other with no problem. I continued a further 1 klm nearly reaching the {only exit cattle grid to highway} when the white car overtook AT SPEED on the grass and put his car in front of mine locked his tires and attempted to BLOCK my exit to hwy VERY AGGRESSIVELY. I realized this was a dangerous crazy stunt by the white car driver who was clearly THREATENING and because of recent past Police Events … i was naturally very concerned and in fear for my safety. I LOCKED MY TIRES TO TRY AND AVOID COLLISION, but still bumped the right rear quarter panel with my left front bumper. There was just enough space for my car to by pass the white car and exit from the AGGRESSIVE BLOCKING MANOEUVRE attempted by the driver of the white car, and I just managed to get through the Cattle grid exit to the Mid Western HWY in great fear of danger from the extremely aggressive overtake and BLOCK ENTRAP ATTEMPT by the white car BIS41B. The driver tried to deprive me of my liberty! I exited to the other side of HWYand parked, got out of my Landrover and walked to the back of my car, White Car BIS41B was still parked on angle across cattle grid exit partially blocking it, wheels pointed directly at cattle grid post stationery. Driver got out of his car and started running across the two lane HWY a distance of some 20 mtrs from his parked car, at me but towards my open door of my car {This person is now known as GL Frost an Orange NSW Tow truck Driver) who resides on a neighbouring property to my own… [sic] … I called out to him WHATS GOING ON HERE MATE, at first I thought he was a Police Officer he had {kit vests with gear attached looked official}, he was abusive and ran to my open door Landrover I called three times where are you going he ignored me went to open door driver side and entered my car, started patting my carry bag? And was trying to turn my engine off, I WARNED HIM 3 TIMES to GET AWAY FROM MY CAR he ignored i reluctantly came with in 2 mtrs again WARNED HIM TO STOP he ignored! And it must be noted he had crossed a busy 2 lane HWY to go about, the believed Unauthorised Entry of a Motor Vehicle. Being I had not given any permission." [Emphasis omitted.] [75]

As would be expected that Brief of Evidence contains the statements taken by the officers. The statement from the plaintiff was taken by Senior Constable Hughes and is, essentially, in the following terms: "3:35 PM 14.3.16 Cottesbrook Honey RE: Collision TOI [time of incident]: 2:45 PM VIC [victim]: Mark Flowers DOB: 8/8/1964 ADD[ress]: Lot 6, Fitzgeralds Valley Way, Fitzgeralds Way [mobile phone number provided but deleted as is the licence number] Vehicle: Land Rover defender [number-plate deleted] POI: Greg Frost DOB: 08/9/1958 [other details deleted including vehicle identification] Driver was travelling west on Kellys dirt road heading toward the Mid-Western Highway. A white car was heading east and passed me on the dirt track. I continued towards exit to Mid-Western Highway. I noticed the same white vehicle passed me on my right side. He overtook me on the right side on the grass aggressively, pulled his vehicle in front of me, effectively blocking the exit cattle grid to the Mid-Western Highway. To avoid being blocked in this aggressive manoeuvre, I passed his vehicle at the cattle grid, clipping the right rear of his vehicle with the left front of mine. Then crossed Mid-Western Highway and parked my vehicle. I exited my vehicle, left my engine running and door open. I walked to the back of my vehicle and called out to the man whose vehicle aggressively blocked me, words to the effect of open 'what's going on mate?' He ignored me, walked towards my vehicle. I asked him 'what are you doing', at least 3 times. He proceeded directly to my drivers door which was open, ignoring my request to stop, put his arms inside my vehicle, rummaged at my bag, then put his arm near the ignition which was on the left side of the steering wheel. He turned my ignition off. At that point I got closer to my vehicle saying, 'get out of my car', at least 3 times. At that point we were within 5 feet/2 metres of [each other]. That distance closed to approximately one metre. He had pulled the keys out of the ignition, swung around and threw my keys on the other side of the road into the bush. He threw several punches at me at that point, all missed. I blocked and counter punched him to defend myself one time. He proceeded to throw punches at me wildly. We were now in the middle of the Mid-Western Highway, where he continuously tried to hit me. At that point we were 3 metres apart and we were de-escalating. Then he walked away telling me to 'piss off', and I was asking where he had thrown my keys. He walked away and then moved his car from the cattle grid exit to where police found it. That's when I called the police. At no time were our vehicles any closer to each other than they are now." [77]

The witness statement was made on 15 March 2016, the day following the collision at Fitzgeralds Way. The statement is lengthy and I do not repeat all of it. Relevantly, it is in the following terms: "[4] I had driven about two-thirds of the way down Kelly's Road when a white Land Rover Defender came up behind me. I knew it belonged to Mark FLOWERS who is a neighbour of ours because it is the only table top utility that has a green tarpaulin on the back of it and often has wooden signs attached to the car with written messages. I could see that there was one person in the vehicle and they were wearing a hat but I couldn't see him well as I was concentrating on the road. [5] I saw the vehicle drive very close to the rear of my vehicle, which was a White Hyundai Santa Fe with NSW Registration B1S41B. It would have been less than a metre from the rear of my car. I know that the driver often drives like this because he has often tail gated me and my family, and I know of other neighbours to which the same thing has happened. I was hoping that he would go around the outside of me because there was plenty of room but he stayed the same distance from the rear of my car until we approached the cattle grid to the Mid Western Highway. I was driving at approximately 80kph most of the way down Kelly's Road which is dirt road. [6] I slowed down for the cattle grid which marks the exit to Kelly's Road at the intersection of the Mid Western Highway when I felt an impact to the rear of my vehicle. As a result of being hit, my car veered off to the left hand side of the road where I stopped about 10 metres later. When I stopped, my car was about half way across the cattle grid but there was still plenty of room for the Land Rover to get passed me. [7] The Land Rover has continued through the cattle grid and turned right onto Mid Western Highway, stopping about 50 metres down the road. I got out of my car and crossed the cattle grid and walked across to where the car was stopped. [8] As I was walking over, I yelled out words to the effect of 'you're an idiot,' Then I said 'I want your licence and your rego number.' At this point I could see that it had been Mr Flowers driving the car whom I know to be the owner of the Land Rover. I saw him standing at the rear of his car and when I got close, he has made a fist and waved his hand in the air, telling me to 'Fuck off, prove it.' [9] I said to him 'Fine, we'll call the Cops.' instantly Mr Flower's punched me once to the left side of my head which connected with my ear. He then punched me a second time to the face, connecting with my mouth. We were standing on the shoulder of the Mid Western Highway; He tried to punch me a third time but I backed away, I said to him 'You're simply not worth it.' He repeated 'Well prove it I'm just gonna drive off.' [10] At that point I walked over to the Land Rover, took out his key from the ignition threw them to the other side of the road, l said to Mr Flowers again 'You're not worth it, we'll let the cops sort it out.' [11] I walked back to my car, reversed the car into the grassed area, turned on the air conditioning and waited for Police to arrive. I could feel blood running down my ear and could taste blood in my mouth. I had a look in the mirror and saw that my left ear was bleeding and the right side of my lip was swollen. Whilst I was sitting in the car I started feeling faint and started to get heart palpitations. … [14] About 30 minutes later, my Wife and I were on the Mid Western Highway on our way into Bathurst and passed the intersection of Kelly's Road. Again, we saw that Mr. Flowers was parked on the side of the road but he was standing near the letterboxes on the opposite side of the road. I found that strange because he does not have a letterbox there. I do not think he had any reason to be there, but I have grave concerns for the safety and welfare of myself and my family because of his erratic behaviour that I now know easily escalates to physical violence'." [78]

Flowers v State of New South Wales

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (14 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (78)

Cited By (2)