Flowers v State of New South Wales

Court of Appeal (NSW)|2022-02-24|Before: Basten JA, White JA, Beech-Jones JA, Rothman J

Solicitors: McCabes Lawyers (Respondent) File Number(s): 2021/240205 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2021] NSWSC 887 Date of Decision: 22 July 2021 Before: Rothman J File Number(s): 2019/117371

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

THE COURT: On 14 March 2016 there was a minor collision between a motor vehicle driven by the applicant, Mark Stephen Flowers, and a neighbour, Gregory Frost. The collision occurred near the intersection of Kellys Road and the Mid-Western Highway, at Fitzgeralds Mount near Bathurst. The collision was followed by an altercation between the two men. As a result of calls made by each man, police attended the scene of the accident and took statements.
On 4 August 2016 the applicant was issued with court attendance notices in respect of one charge of assault occasioning actual bodily harm, the alleged victim being Mr Frost, and one charge of negligent driving. On 26 April 2017 the matters were heard by Magistrate Allen at Bathurst Local Court. On the charge of negligent driving, the magistrate found the applicant guilty but, without proceeding to conviction, dismissed the charge pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The assault charge was dismissed, the magistrate, while satisfied that blows were traded, was not satisfied beyond reasonable doubt that the applicant was not acting in self-defence.
On 15 March 2016, the day after the incident, Mr Frost took out an interim apprehended personal violence order (AVO) against the applicant. The order required that the applicant attend the Local Court on 4 April 2016. On that date, both men appeared for themselves and a further interim order was made. On 11 April 2017 Mr Frost sent to Constable Madalene Hughes, at Bathurst Police Station, a note stating that he agreed that the police prosecutor, Sergeant Darren Pearce, should represent him in court regarding the AVO matter. Following the conclusion of the hearing in the Local Court on 26 April 2017, the prosecutor mentioned the AVO matter, the following exchange taking place: "PROSECUTOR: Your Honour based on the passage of time and the current location of the respondent, I would seek to withdraw the AVO application your Honour. HIS HONOUR: I will note no residual fears application is marked withdrawn and dismissed. Interim order to date revoked."
On 15 April 2019 the applicant commenced proceedings in the Common Law Division (Matter No 2019/117371) seeking damages for malicious prosecution, and possibly other torts, against the State, based on the conduct of police officers in relation to the events following the laying of charges in August 2016.
The matter proceeded to trial before Rothman J in March and April 2021. The trial ran for nine days. On 22 July 2021 the primary judge dismissed the proceedings and ordered that the applicant pay the State's costs. [1] On 20 August 2021 the applicant filed a notice of appeal identifying all but one of the dates of the hearing before the primary judge. (It may be assumed that one date was omitted by mistake.) However, the "material dates" were said to be a period running from 15 April 2019 to 22 July 2021. It may be inferred from the grounds of appeal that the intention was to challenge a number of interlocutory orders made in the course of the proceedings. While such a course may be permissible in relation to orders which have affected the final outcome, any orders which could not properly be so characterised would require a significant extension of time to be challenged in this Court.
On 13 November 2018 the applicant filed a summons in the Supreme Court seeking preliminary discovery, being matter No 2018/348865. At that stage, the applicant had legal representation. Some documents were produced by the State, but the summons was dismissed on 3 May 2019 by Harrison J.
In the malicious prosecution proceeding, the applicant has at all times been unrepresented. The pleading, which came before the primary judge as a further amended statement of claim, had been repleaded on a number of occasions due to objections taken by the State, but remained unstructured, prolix and with no clear identification of legally relevant material. The pleading covered some 19 pages.
The notice of appeal suffered similar defects. In single line statements, it contained 11 grounds, alleged to be errors of law and lettered A-K. However, in 121 additional paragraphs, observations, often incoherent, were made with respect to particular passages in the judgment of the primary judge. The document was followed by a further document dated 25 August 2021, identified as a summary of argument, which included a repetition of the grounds, reduced, however, from 11 to eight.
Certain themes emerge from the documentation, with varying degrees of relevance to the legal issues in the case. These will be addressed below.

Leave to appeal

Before addressing the substance of the matters relied upon by the applicant, it is necessary to consider the competence of the appeal. There is no appeal as of right unless the amount in issue is $100,000 or more. [2] Where a statutory constraint applies to a proposed appeal, the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") require that the proposed appellant include a certificate to the effect that the amount in issue exceeds the specified amount. [3] Where that is not apparent from the face of the material, it is usual for the Registrar to direct the filing and service of an affidavit which sets out the material facts on which reliance is placed to show that the restriction does not apply. Where appellants are legally represented, an affidavit is usually filed with the notice of appeal.
This is not a mere matter of form. The imposition of a leave requirement plays an important function in regulating the business of this Court, the demands on the resources available in the administration of justice and in limiting the costs imposed on respondents and the overall legal costs incurred by the parties. It also has a beneficial operation in maintaining the availability of the Court for litigants with entitlements to appeal as of right. In the present case, it is far from self-evident that the statutory threshold is met. A claim of malicious prosecution against the State can only arise from proceedings taken by the State or by agents for whose conduct the State is vicariously liable. In the present case, there were three sets of proceedings before the Local Court at Bathurst. The first was the application for an apprehended violence order which, as will be noted below, was brought by Mr Frost personally. The only occasion on which a police officer was involved was the date of the final hearing when Sergeant Pearce applied to withdraw the application. There was no evidence at trial to support any claim against the State in relation to that proceeding.
As to the criminal prosecutions, it is an essential element of the tort of malicious prosecution that the proceedings said to have been brought maliciously terminated favourably to the claimant. The finding that the negligent driving charge was proved removed it as a possible basis for a claim of malicious prosecution. There was, therefore, only the charge of assault occasioning actual bodily harm, which was dismissed by the magistrate.
In responding to a request by the State to identify the losses claimed in the statement of claim (question 43), the applicant stated that his property near Bathurst had been the subject of a "fire sale" as a result of which he lost business equipment valued at $200,000 and a property with "$5,000,000 development business potential". Apart from a dog which was valued at $10,000 and said to be "given away", there was no indication as to what amount was received for the property. More importantly, the reason given for the sale was that the police "failed to provide proper investigation" into the firing of automatic weapons and the slaughter of animals on the neighbouring property owned by Mr Frost. However the claimed loss was assessed, there was no basis for ascribing it to the malicious prosecution of one charge of assault occasioning bodily harm.
In the absence of material evidence, it is not possible for the Court to be satisfied that damages exceeding the statutory threshold would have been awarded had the claim been successful. It follows, that the applicant requires leave to appeal. However, as the State took no objection to the competency of the appeal and as the matter was listed for hearing of the appeal before three judges of the Court, it was appropriate that the matter proceed by way of a concurrent hearing of the application for leave and of the appeal. Nevertheless, because, as will be explained, the challenge to the judgment below lacks merit, the proper course is for the Court to refuse leave to appeal.

Apprehended bias

The applicant raised a ground based on alleged bias. As such a claim, if made good, requires the setting aside of the judgment and orders at trial, it should be considered first. [4] It does not turn on the reasoning of the judge in the final judgment. The ground required demonstration that a fair-minded observer, hearing a specific exchange in the course of the trial, might apprehend that the judge might not deal with case properly on its merits. [5]
On 5 May 2021, after the trial had been completed and judgment was reserved, the applicant filed a notice of motion seeking three orders. One was that the judge recuse himself for "bias and want of jurisdiction." The basis of the application was that a reasonable apprehension of bias had arisen because the judge had said to the applicant "[y]ou accuse the State … of not producing the full material that you had presented. They have put in the court book the affidavit that you filed on 15 April 2019, with a redacted version of Dr Westmore's report. … And frankly, I think you the State an apology."
The context of this statement was that the applicant was suggesting impropriety on the part of the lawyers for the State in annexing a redacted version of a psychiatric report, instead of the full report. The explanation was that it was the redacted version which was attached to the applicant's own affidavit which had been reproduced in the court book. When the judge appreciated that, he made the statement which is said to form the basis of an apprehension of bias. The judge was right to infer that impropriety was implied: at par 29 of the grounds in the notice of appeal (page 5) the applicant repeated the allegation that "State of NSW Lawyers are caught red handed for tampering evidence before Rothman!" However, the fair-minded observer at the trial would have immediately understood that the judge's remark was entirely justified and warranted and could not demonstrate an apprehension of bias. The ground has no prospects of success and is entirely misconceived.

Malicious prosecution: elements of tort

In A v State of New South Wales, [6] the High Court stated: "[1] … For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish: (1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause."
As noted above, the only proceeding that terminated in favour of the applicant was the assault charge. The first step in considering a malicious prosecution claim with respect to that matter was, as the primary judge noted, to determine who was relevantly the prosecutor. [7] There may be more than one police officer who bears responsibility for instituting and maintaining a criminal prosecution, but it may not be necessary to establish malice on the part of all those involved. If, for example, an informant (whether a victim or an officer who lays a charge) acts maliciously in circumstances where the malice is unknown to superior officers invited to approve the charges, or to those conducting the prosecution, malice on the part of the informant may suffice for a claim against that person.

Proving malice

The informant whose name appeared on the court attendance notices was Constable Hughes. The primary judge made findings with respect to Constable Hughes as follows: "[394] First, it is trite that the mere fact that a trier of fact does not believe evidence of a witness does not amount to evidence to the contrary of that to which the witness has testified. In other words, if the Court were not to believe a witness who testifies that she or he has travelled to the moon, in and of itself, that disbelief or conclusion that the evidence is unreliable or untrue, is not evidence that the witness has not travelled to the moon. [395] The evidence of Senior Constable Hughes is that she honestly and genuinely believed that the offence of assault occasioning actual bodily harm (and the negligent driving) had been made out. Her superiors were of the view that, notwithstanding the conflicting evidence, the assault was sufficiently serious, and there was sufficient evidence, that it was a matter that should be determined by the Court. That is a statement that asserts that the charges should be taken for the purpose of enforcing the law; not for a purpose that is extraneous to the enforcement of the law. [396] There is no evidence before the Court that any of the persons associated with prosecuting the assault, the negligent driving, or the traffic infringement relating to failure to provide particulars were motivated by a purpose other than the enforcement of the law. I am prepared, for present purposes, to accept that Sergeant Pearce was an initiator of proceedings. So too was Senior Constable Costelloe. [397] But the foregoing reference to failure by Mr Flowers to prove improper purpose, or 'malice', is accurate in relation to each and every one of the persons whose motives were sought to be impugned."
The documentary evidence provided no basis for doubting the conclusion reached by the primary judge that there was no malice. Indeed, it provided strong support for that conclusion. For example, on 30 July 2016, before the charges were laid, Constable Hughes sought advice as to the "suitability of pressing charges against [Mr Flowers]." In that document Ms Hughes stated: "I have compiled the attached brief outlining the circumstances of the incident. The matter is highly conflicting, and there are no independent witnesses to the incident. The Victim however provided Police with a statement, as well as medical records and photographs. The POI has made no attempt to follow up the incident, and has refused to be interviewed about the matter. It is due to this I am unable to disprove the allegations of the Victim against the POI. Of mention, the POI FLOWERS has successfully sued the NSW Police Force previously regarding an unlawful arrest. Based on the attached brief, I believe I have enough evidence to satisfy the proofs of the offences of; 1. S.126 Road Rules 2014 - Drive behind other vehicle too closely to stop. 2. S.59(1) Crimes Act 1900 - Assault Occasioning Actual Bodily Harm, however I wish to seek clarification in the matter."
On 31 July 2016 Sergeant Robinson, the team supervisor, approved the laying of charges. On 4 August 2016 Chief Inspector Cracknell, Crime Manager, Chifley Local Area Command, agreed that the two charges should proceed.
On 20 October 2016 Constable Hughes sought further advice following the receipt of submissions from Mr Sibley, a solicitor representing the applicant. Ms Hughes noted: "The Barrister of the Accused, Justin SIBLEY has provided the attached submissions to have the matter withdrawn. Mr SIBLEY has stated in page four of his submissions that he acknowledges there is a Prima Facie case however believes there 'is no reasonable prospect of conviction' and believes the matter is not in the public interest. The officer in charge agrees that there is prima facie evidence, however is unaware of possible legal arguments his legal representation may make. It is the concern of the OIC that litigation may occur as a result of the charges if the matter becomes a failed prosecution. Attached is all relevant evidence pertaining to the matter as previously submitted."
The shift supervisor, Chifley Local Area Command, Sergeant Beattie, stated: "If prima facie exists, as admitted by Barrister Sibley, the matter should proceed for a determination by the courts." The Crime Manager, Chifley Local Area Command, Acting Superintendent Rankin, stated: "I tend to agree this matter should be determined at court, but request a thorough review by prosecutor."
The prosecutor assigned to the case was Sergeant Pearce. On 4 April 2017 Sergeant Pearce advised Acting Superintendent Rankin: "I have read the brief and did a thorough review (which is the front covering report I attached) on the last occasion. On the brief there is a live issue of self-defence but I think on the evidence it can be rebutted. I am happy with the investigation, the informant has obtained all the relevant evidence. Most of the issues the representations raise go to discretionary reasons to consider withdrawal rather than the likelihood of a conviction. I think [it is] a matter which should be put before a court, I remain of the view that there is a reasonable prospect of a conviction." Sergeant Pearce also stated that he was having Senior Sergeant Donaghy review his initial advising. There were also extensive exchanges between Mr Sibley and Constable Hughes.
This material recognised conflicting evidence, identified that self-defence would be raised and acknowledged that a conviction was not a foregone conclusion. However, nothing in this material undermines the finding of the primary judge that the prosecution was brought for the sole purpose of law enforcement.
To the extent that the primary judge was not satisfied that Ms Hughes acted for any improper purpose, the applicant was faced with the difficult task of establishing that the trial judge, who had heard the witness give evidence and be subjected to cross-examination, failed to make the correct finding as to her credibility and reliability. As the joint reasons of Gleeson CJ, Gummow and Kirby JJ explained in Fox v Percy, [8] "[i]n particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings." [9] The reasons continued: "[29] … In some, quite rare, cases, although the facts fall short of being 'incontrovertible', an appellate conclusion may be reached that the decision at trial is 'glaringly improbable' or 'contrary to compelling inferences' in the case."
A challenge to the judge's finding as to the informant's lack of any improper purpose was untenable.

Concealed evidence - the AVO rebuttal affidavit

In fact, the applicant did not challenge those findings directly; his case was placed, at least in part, on a different footing. He contended that the prosecution should not have been brought because the police had access to a document identified as "19-4-26 AVO rebuttle [sic] the 71 page affidavit filed into Bathurst Local Court". The applicant also stated in his affidavit, though somewhat vaguely, that the 71-page document was "personally served on Bathurst Local Police", also on 19 April 2016. The claim of service of this document on the police was unsupported by documentary evidence. The applicant accepted that no police officer had signed any receipt for the document, nor was there any record of it being available to the police. However, as the applicant acknowledged, "all Bathurst NSW police examined at Rothman J Trial 2021 denied ever receiveing or seeing this comprehensive AVO rebuttle 2016/00081494". [10]
The applicant made it clear that he did not accept the denials, which he treated as further evidence of deliberate attempts by police to "conceal" their knowledge of facts and circumstances which militated against the proper prosecution of the charge of assault. Further, the applicant considered the material contained in the 71-page bundle to have provided strong evidence favouring his acquittal on the charge.
Neither of these propositions can be accepted. With respect to the first, subject to one qualification, the trial judge accepted the evidence of the police, and in particular, Constable Hughes, as truthful and relevantly reliable. [11] With respect to the present matter, Constable Hughes' denial was entirely plausible. The document had been filed in the Local Court in response to Mr Frost's AVO proceeding and was not directed to the police prosecution. There was no evidence that any police officer had seen it, nor that a copy was to be found within the police records.
As to the second matter, the 71-page document was, with the exception of a two-page explanation of what happened in the course of the altercation with Mr Frost, of no direct relevance to the assault charge. It dealt with other aspects of the relationship between the applicant and Mr Frost, and the applicant and police. On the other hand, the two pages which were relevant set out the applicant's statement of what happened between him and Mr Frost on 14 March 2016. Those two pages were separately provided to Constable Hughes by the solicitor for the applicant under cover of a letter dated 27 May 2016. The solicitor referred to the fact that Mr Frost had commenced proceedings for an AVO against the applicant on the basis of the incident, noted that the applicant was contesting the application and continued: "Mr Flowers has filed a response to the AVO application in the Local Court. This statement sets out the details of the incident, and that is consistent with the information which you have recorded in your notes. He has instructed us to provide a copy of this statement to you, and that is enclosed."
In short, the relevant part of the document was provided to Constable Hughes (although that was not drawn to her attention in cross-examination) but, as the applicant's solicitor recognised, it included nothing new, being consistent with the officer's notes of the applicant's explanation at the scene of the altercation.
There is no doubt the primary judge was aware of the 71-page document. He noted that the applicant's affidavit of 15 April 2019 contained a lengthy history which he considered relevant to his claim for malicious prosecution against Bathurst police. [12] The judge listed the annexures to the affidavit, the second of which was the AVO rebuttal affidavit filed in the Local Court. The judge noted that the affidavit also annexed the transcript of the AVO hearing in the Local Court, submissions by lawyers representing the applicant made to the police, and a five-page submission by Mr Sibley to the police. Because as noted above, the two relevant pages contained an account consistent with the account provided to the officer who attended the scene of the incident, no further consideration was required in the judgment.
It is readily understandable that the trial judge made no express findings in relation to this material; nor was there any evidential basis for thinking that the police had "concealed" it from anyone.

Motive for improper purpose

On the applicant's case, the motive of Constable Hughes in laying the charge was revenge for a successful claim in malicious prosecution made by the applicant some years earlier. It was true that Constable Hughes knew that he had successfully brought such proceedings, a matter referred to in her brief seeking advice from senior officers. The applicant's solicitor had expressly drawn that fact to her attention, noting the adverse effects of that earlier experience on his mental health, in requesting that any charge be laid by way of a court attendance notice, as occurred. On the plaintiff's case, the earlier consent judgment against the State (involving the misconduct of one officer at Hornsby) laid the basis for the claim of an improper purpose on the part of Bathurst police in laying the charge of assault. An alternative explanation for the notation in the brief to advise was that Constable Hughes was anxious to ensure that the laying of the charge was appropriate and would not lead to further civil action against the State.
The judge understood that the applicant's case on improper purpose turned on a finding of "revenge by New South Wales Police for obtaining a judgment against them" with respect to the incident in 2006. [13] However, at no stage was it suggested by the applicant to Constable Hughes in cross-examination that she was motivated by a wish for some form of revenge in laying the assault charge. The case for the applicant could have been dismissed on that ground alone.

Conclusion

Accordingly, as the challenge to the critical finding as to lack of improper purpose must fail, an appeal would have no prospect of success. Leave to appeal should be refused. The following matters raised by the applicant should nevertheless be addressed.

Trial by jury

The applicant filed various notices of motion prior to the trial, including one filed on the first day of the trial, seeking a trial by jury. [14]
The trial judge dealt with the request for a trial by jury and rejected the application. [15] His reasoning was based on three propositions. First, he noted that the requirements of UCPR r 29.2 had not been complied with. It is not clear that the judge placed any weight on this matter. [16] Harrison J had noted that the procedural requirements of the Act and Rules had not been complied with but that the State "takes no point about this." [17] It would not have been appropriate to rely on this matter as a basis for refusing trial by jury, but that did not happen.
Secondly, he observed that an earlier application had been dealt with by Harrison J and rejected, from which judgment the applicant had not sought leave to appeal. Thirdly, applying the test provided in s 85 of the Supreme Court Act, he was not satisfied that the interests of justice required a trial by jury. Each of these matters provided a sufficient basis to reject the application. No error was identified, beyond the bald assertion that the nature of the claim required a jury. Both judges rejected that as a sufficient basis and were correct to do so.
While the form of a trial is a matter of some importance, the fact that a refusal to requisition a jury constitutes an interlocutory judgment which could have been the subject of an application for leave to appeal, and was not, provides a strong reason for refusing leave to appeal the final judgment, in order to entertain such a challenge. In any event, no reasonably arguable error was identified in the reasoning of the primary judge in rejecting the application on the merits.
On the hearing of the appeal, the applicant repeated, in strident terms, his demand for a jury, this time to hear his appeal. Juries play no part on the appeal process. The provision for an appeal is purely statutory; accordingly the procedure is governed by statute. If there is further fact-finding to be undertaken, it is undertaken by the Court in accordance with s 75A(6) of the Supreme Court Act. Section 85 appears in Div 2 of Part 6, which is headed "Trial" and refers to proceedings in a Division, which are "to be tried". It has no application to appeals in this Court. The motion seeking a jury must be dismissed.

Existence of two proceedings

There remains one administrative matter relied upon by the applicant, but which has no material consequence for the challenge to the final judgment. Indeed, it is not clear that the applicant considered it to be material in that regard. Nevertheless, one of his 11 appeal grounds, pressed in oral submissions, was that there were "two statements of claim different file numbers though are same matter".
There are not two statements of claim, but only one statement of claim which was the subject of the trial before the primary judge. Before that statement of claim was filed, and whilst the applicant was legally represented, his solicitors commenced an application by way of summons for preliminary discovery. As has been noted, documents were produced in relation to some of the headings in the summons. However, the summons was dismissed by Harrison J on 3 May 2019, and there has been no challenge to that order. It is not a matter which gives rise to any issue with respect to the final disposal of the proceedings and could not form the basis for an application for leave to appeal from that order at this stage. At the time of the trial there was only one matter on foot in the Division.
Had there been two statements of claim in respect of the same matter, one would have been an abuse of process and would have been struck out. The basis of the applicant's assertion appeared to be that the first statement of claim was intended to be filed in the summons proceeding and was given that number by the applicant. At some stage, probably in the Registry, it was decided that there should be a fresh proceeding dealing with the substantive matter and the number was crossed out and the number of the proceeding which was determined by Rothman J, and was the subject of the appeal, was entered. The statement of claim dealt with by Rothman J was a subsequent iteration of the original claim, which went through a number of strike-out applications and recastings.

Notices of motion

At the outset of the hearing, the applicant pursued a number of motions, which were dismissed, with reasons reserved. One related to an application for a jury, which has been addressed above. The remaining matters will now be addressed.

Application to call further evidence

On 18 January 2022 the applicant filed a notice of motion seeking leave to adduce further evidence. The fresh evidence comprised two separate matters. The first concerned a letter received by the applicant from the NSW Police Force on 22 December 2021 responding to an email from the applicant "concerning discrepancies on [his] National Police Certificate." The applicant's email of 9 November 2021, to which the December letter was a response, was not part of the proposed tender. However, a document signed by the General Manager, National Crime Check Pty Ltd, dated 28 June 2019 stated that there were no "disclosable court outcomes recorded" on the "National Criminal History Database". What was sought in 2021 is obscure, but may have been an acknowledgement that, as at 2014, the record was inaccurate.
The substance of the complaint appeared to be that when, in September 2016, Constable Hughes obtained a printout from the NSW Police Force Criminal History in relation to the applicant, it disclosed a conviction for contravening an apprehended domestic violence order at the Hornsby Local Court on 4 December 2006, confirmed in the District Court three months later.
Possibly this was the matter referred to in the letter from the Police Force of 22 December 2021, which had been corrected by 2019, that is before the trial. If that is so, it is unclear why the entry was removed, although it may again be inferred that the applicant's successful claim for malicious prosecution in relation to that matter meant the conviction should not stand, although it had not formally been overturned. More importantly, the change had nothing to do with the present case. A copy of the unamended criminal record was contained in the court book, together with the notation that it had been obtained by Constable Hughes on 24 September 2016. There was no evidence to which this Court was taken to suggest that it was deployed in the prosecution in the Local Court, or in the proceedings for malicious prosecution. (It might perhaps have been tendered on sentence had the applicant been convicted.) There are no circumstances which would warrant its admission on an appeal.
The second matter involved evidence from the counsel and solicitor who represented the State before the trial judge.
On 17 February 2022 the Registrar advised the applicant that the circumstances in which further evidence might be adduced on appeal were governed by s 75A of the Supreme Court Act, a copy of which was provided. He was also informed that the Court would expect to be told the nature of the evidence sought to be adduced, and the special grounds on which the calling of such evidence, following a trial, might be justified. He was informed that, if the Court granted leave to adduce further evidence an adjournment of the hearing might prove necessary, but if leave were refused the hearing of the appeal would proceed immediately.
To seek to call on appeal the solicitor and counsel who represented one's opponent at trial is, absent explanation, an abuse of process. In the course of oral submissions it became clear that the applicant's purpose was to question the lawyers as to aspects of their conduct, both at interlocutory hearings and at the trial, in order to demonstrate ongoing "concealment" of documents and material facts. This course would not have been permitted on an appeal. The applicant pointed to no conduct which required explanation. For example, the applicant complained that counsel for the State had referred a judge hearing an interlocutory application to an affidavit which had been filed in the proceedings, but not to the pleading which accompanied it. The applicant treated the absence of reference to the pleading as problematic; however, he was present in court when the reference was made to the affidavit and could have explained that it was accompanied by a pleading, had he thought that significant at the time. Had there been material errors, they might have provided some basis for challenging an interlocutory order, but not a basis for calling the lawyers for the State to give evidence at the appeal. Accordingly, the application to issue subpoenas and to permit the adducing of further evidence was rejected. The notice of motion of 18 January 2022 was dismissed.

Motion to vacate hearing

On 15 February 2022 the applicant filed a further notice of motion seeking to vacate the hearing date fixed for 24 February 2022. The basis of the application was that he had only discovered on 5 February the Covid-19 protocol which had been placed on the Supreme Court website on 31 January 2022. It provided that persons could not enter the Court unless double vaccinated for Covid-19. He provided a "Covid-19 Vaccination exemption on religious Christian grounds", being a document signed by him and witnessed by a public notary.
The copy of the Court protocol, which was annexed to his affidavit in support of the motion, also advised that the parties in matters (including appeals) "will be notified by the Court in advance if their matter can proceed in person. Unless notified, parties should assume their matter will proceed by AVL."
The matter would only have proceeded on 24 February, if the motion to take further evidence was rejected; the hearing would then have been limited to oral argument in support of the written submissions, as it was. If the application to take further evidence were acceded to, all that would have been heard was a motion, which would not in the ordinary course have been conducted in person, as the protocol stated. As at the date of the notice of motion (15 February) no one had been advised that the present appeal would proceed by a hearing in person. Nor was such a decision made later. The email from the Registrar to the applicant of 17 February advised him that the matter had not been listed by the Chambers of the Chief Justice as a matter to be heard with parties in person and accordingly, "the appeal will be conducted remotely with the parties appearing on audio visual link (AVL)." He was further advised that if he had computer facilities he would be able to log into the courtroom, but if he did not it would be necessary to use a telephone connection. Log in details were provided to him before the hearing.
In his affidavit sworn on 11 February (but filed on 21 February 2022), the applicant stated that it was unfair not to permit him to attend court in person. He further asserted that he proposed to commence proceedings in the High Court to require this Court to permit him to attend and sought to have the hearing vacated for that purpose.
The Court was not satisfied that he had provided any basis for vacating the hearing. Neither party attended in person. He was (and remains) entitled to commence proceedings in the original jurisdiction of the High Court, although he will need leave of a justice of that Court to do so, as noted on an application he sought to file on 23 February 2022.
The applicant further contended that he would be disadvantaged in conducting such proceedings because he was homeless.
The varying statements by the applicant in this respect are confusing. In a verified further amended statement of claim dated 15 November 2019, the applicant alleged particulars of damage in the following terms: "55 PARTICULARS A. The current Malicious Prosecution caused by Bathurst NSW Police Force bringing malicious false charges against the plaintiff Mr Flowers, has in affect stolen the only refuge retreat the father and son had, re the father's former 100 acre panorama property lost to forced sale directly due to these malicious NSW Police actions. The father is currently homeless due to the NSW Police force gross negligent reckless Malicious Prosecution for the 2nd time. B. Further the Malicious Prosecution caused by Bathurst NSW Police Force has caused the plaintiff Mr Flowers and his son to lose there home and dwelling …. … E. Loss of dwelling business machinery property business potential substantial losses estimated $5,000,000.00 five million dollars."
The notice of appeal filed on 20 August 2021 gave the applicant's address as a property on the Queensland Sunshine Coast; that address also appears in subsequent filings. However, many of the documents filed in this Court have been witnessed by a justice of the peace or public notary with an address in Parramatta. The applicant clearly has a computer as all material supplied to this Court has been provided electronically. He did not suggest that he was unable to attend by telephone, but that it would by highly inconvenient. As it happened, he used a telephone connection and addressed the Court without technical interruption and articulately.
In these circumstances, the Court declined to vacate the hearing of his appeal.

Orders

The Court makes the following orders: 1. Direct that the notice of appeal filed on 20 August 2021 be treated as an application for leave to appeal from the judgment in the Common Law Division given on 22 July 2021 and the orders entered on 10 August 2021. 2. Refuse leave to appeal. 3. Order that the applicant pay the respondent's costs in this Court.

Endnotes

Flowers v State of New South Wales (No 5) [2021] NSWSC 887 ("Flowers (No 5)").
Supreme Court Act 1970 (NSW), s 101(2)(r).
UCPR, r 51.22.
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2] (Gummow ACJ, Hayne J agreeing), [117] (Kirby and Crennan JJ), [172] (Callinan J).
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11].
(2007) 230 CLR 500; [2007] HCA 10.
Flowers (No 5) at [198].
(2003) 214 CLR 118; [2003] HCA 22.
Fox v Percy at [28].
Affidavit of applicant, 13 December 2021, par 15, p 7.
Flowers (No 5) at [373].
Flowers (No 5) at [221].
Flowers (No 5) at [304].
Earlier motions were heard by Harrison J on 8 May 2020 and on 2 July 2020, each being refused.
Flowers (No 5) at [31]-[39].
Flowers (No 5) at [32]-[34].
Flowers v State of New South Wales [2020] NSWSC 526 at [5]. 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: 02 March 2022

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