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[2020] NSWSC 1390
Supreme Court of NSW
2020-10-06
Bellew J, Harrison J
Original judgment source is linked above.
line 3-6 Added As per acknowledgement of such harm in 12th February 14 State of New South Wales consent judgement 2009 /332550. 4 Added Mistrial full acquittal must be administered to Mark Stephen Flowers Bathurst Local Court re ,26 April 2017 wrong finding > H62492967 order 2016 /00237698-001 and 2016 / 00237698-002 this 2nd order number Negligent Driving guilty finding must be corrected to a Not Guilty finding due to miscarriage of justice mistrial Perversion of the Course. 4A Added On the 26th of April 2017 in Bathurst Local Court Judge Allen presiding matter of Bathurst NSW Police v Mark Stephen Flowers , a Miscarriage of Justice occurred . a perversion of the Course of Justice was underway this must qualify for a Mistrial against Mark Stephen Flowers whom was the defendant at the time. 4B Added Judge Allen had False Instrument before him , false NSW Police records {NCC ref no 193010-124233} that NSW Police have since 18th January 2007 been maliciously using false records false instruments against plaintiff Mr Flowers in current Supreme Court matter 2019 / 117371. 4C Added At hearing 26th of April 2017 in Bathurst Local Court Judge Allen has participated in a perversion of the course of justice . Judge Allen asked for the Traffic Antecedents of Mark Stephen Flowers, through the Bathurst NSW Police Prosecutor could not provide a copy of these antecedents to Judge Allen. It was a Miscarriage of Justice to have continued to sentence Mark Stephen Flowers for Negligent Driving 2016 / 00237698-002 without being able to view the Traffic Antecedents of Mr Flowers. It would of only needed a short adjournment to acquire the Traffic Antecedents. 4E Added At hearing 26th of April 2017 in Bathurst Local Court Judge Allen has participated in a perversion of the course of justice . the concern is simply WHY weren't the Traffic Antecedents available ? It is believed they were not available maliciously , because if they had been available Judge Allen would have been on the record as to having read and been participating in the perversion of the course justice. This perversion of the course was commenced originally by Bathurst NSW Police Constable Michael Costelloe in creating a false and misleading record of Leaving the Scene of a Major Vehicle accident on the 3/5/16 against Mr Flowers, done so just 5 days prior to his Bathurst NSW Police colleagues Con Hughes and Scon Simpson bringing false charges of Assault Occasioning and Negligent Driving , a blatant Perversion of the Course to improve the Malicious Prosecution chance for Bathurst NSW Police. 4F Added The Bathurst NSW Police and Judge Allen Bathurst Local Court have participated in this Perversion of the Course of Justice on the 26 th April 2017. All photographic evidence proved without doubt that Mark Stephen Flowers was completely innocent of any negligent driving and all charges corruptly brought against him by Bathurst NSW Police. 5 Added ABUSE OF PROCESS .The evidence mentioned in this case that is to be relied on is before the Supreme Court specifically the large main evidence Affidavit filed 15th April 2019 formerly commenced on file number 2018 - 348865 now closed and is an abuse of process from the Supreme Court of NSW to have closed it . Then converged to new file number 2019 / 117371 . For the Supreme Court to have closed this file 2018 / 348865 main evidence makes the plaintiffs case of Apprehended Bias from the court filed 13/8/19 , and also filed 13/8/19 risk to life Special Circumstances . It is now in evidence that on the 29/3/20 there was and attempt on the plaintiffs life , NSW police event number 2850865. 6 Added to end of paragraph 5 And the additional 20/1/20 filed 29 State of NSW questions answered . 7 [6] There is no attempt here by the plaintiff Mr Flowers to re litigate the past though the past actions by NSW Police against the plaintiff Mr Flowers are malicious and proven and there for show the malice and intent to harm the plaintiff Mr Flowers. There is no attempt here by the plaintiff Mark Stephen Flowers to re-litigate the "past false arrest and false imprisonment by the defendants" though the past actions by defendants against the plaintiff Mark Stephen Flowers are malicious and proven and there for show a concerning pattern of abuse malice and intent to harm the plaintiff Mark Stephen Flowers. The IAT Immediate Action Team Riot Squad Surry hills Police Centre TORTURE of the Plaintiff is being re-litigated as was never settled and is evidence that proves the intent historic to current abuse of the plaintiff by the defendant. 9 [8] Contributed to the destruction of the plaintiff's relationship to his former family and fatherhood Contributed to the destruction of a family and fatherhood 17 [16] Addition to end of paragraph. for a separate "car park bingle event" not related to 14/3/16 event. 18 [17] addition of to pervert the course of justice. NON investigation to pervert the course of justice as in evidence before the court. 19 [18] addition of to support his police colleagues desperate effort to bring further false charges against Mr Flowers. Bathurst Police Con Costelloe in act perversion of the course of justice to support his police colleagues desperate effort to bring further false charges against Mr Flowers. 20 Added The use of this false instrument traffic record of leaving the scene of a major vehicle accident created by Bathurst NSW Police Con Costelloe on the 30/7/16 on this day he acknowledged in email to "Leigh Rollason solicitor for Mr Flowers" receipt of a Statutory Declaration of Mr Flowers dated 14/7/16. The 30/7/16 is the believed date Con Costelloe came back from leave and on that day he emailed Mr Flowers solicitor acceptance of "stat dec" . And on this date 30/7/16 Con Costelloe created false traffic record of leaving the scene of a major vehicle against Mr Flowers . This was a perversion of the course of justice with intent. 21 Added to replace paragraph 21 Just 5 days later on the 4/8/16 Con Hughes and Scon Simpson proceeded to Pervert the Course by bringing false Assault and Negligent driving charges against Mr Flowers . Con Costelloe assisted in this Perverting of the Course to aid Con Hughes and Scon Simpson whom needed serious false traffic record against Mr Flowers before daring to bring false charges supporting negligent driving . Judge Allen 26/4/17 is believed privilege and a participant to this malicious prosecution . Judge Allen in transcript asked for the Traffic Antecedents it was a miscarriage of justice to have sentenced Mr Flowers without Judge Allen vying the traffic Antecedents , why were Mr Flowers Traffic Antecedents not in court 26/4/17 at hearing ? 22 Added in replace of paragraph 21 On the 4th of August 2016 defendants CON MADELINE HUGHES and SCON MARK SIMPSON prepared false charges of assault and negligent driving for the 14/3/16 event , to be brought against Mr Flowers with the confidence that Con Costelloe had fabricated the false charge of , leaving the scene of a major vehicle accident. Its believed they needed Costelloes false charges to give Judge Allen confidence to proceed as a participant of this perversion of the course in finding false imprisonment of Negligent driving against Mr Flowers, in attempt to thwart Mr Flowers seeking damages for Malicious Prosecution for the 2nd time! 24 [23] Added at end of paragraph Bathurst NSW Police Con Costelloe roll in supporting this Perversion of the course was vital and the forunner to this Malicious Prosecution. 27 [26] Addition of previous nonfeasance and to assist the perversion of the course in play. The level of pain suffering and stress upon the plaintiff directly from the previous nonfeasance inaction of the Bathurst NSW Police to address Automatic Weapons fired at and on his property and the Slaughtered Animals left on his property combined with the GL Frost Perpetrator event and the initiating defendants AVO against plaintiff for the 14/3/16 event followed by Con Costelloe false record to assist the perversion of the course in play. 28 [27] added of nonfeasance inaction The plaintiff was in affect through the nonfeasance inaction and malicious actions of the defendants, forced to leave town to sell his dream property. 32 [31] Added at end of paragraph This was a miscarriage of justice. 33 [32] Added defendants and false The plaintiff Mr Flowers raised the believed need to appeal the defendants false Negligent Driving charge with former Sydney NSW lawyers Armstrong Legal David Porter in early May 2017 at commencement of representation formerly and on other occasions and was assured defendants false the Negligent Driving charge did not need to be appealed and that Malicious Prosecution could be perused without the need to appeal the defendants false charge . The plaintiff Mr Flowers took the advise of David Porter at the time. Eventually agreement with Armstrong Legal and the plaintiff Mr Flowers was terminated. 36 [35] In fairness to Judge Allen. false records false instrument were placed before him by Bathurst NSW Police and Bathurst NSW Police Prosecutor as were previous historic NSW Police FALSE RECORDS against the plaintiff now proven and before the court in evidence I withdraw any mention of fairness to Judge Allen Bathurst local Court his decision went against all of the evidence proving GL Frost was without any doubt the perpetrator. For Judge Allen to not dismiss the Negligent Driving charge is wrongful and believed a malicious perversion of the course. False records false instrument were in play by NSW Police . Transcripts of 26/4/17 have not clarified as to any antecedents of Mark Stephen Flowers being read or not read . What is certain and proven on paper is that all NSW Police records against Mark Stephen Flowers are FALSE . And the NSW Police Brief of Evidence in this case is a complete malicious fabrication , the only part of it truthful being Con Hughes first mention of Mr Flowers as VIC victim . Judge Allen Hearing 26/4/17 was a corrupt process ! Historic to current malicious prosecutions pattern of behaviour proven in evidence against the defendants. PROVEN 19/9/2006 LS Con Warner and SGT Gilroy of Hornsby NSW Police Station. PROVEN 18/1/2007 LS Con Warner Parramatta Local Court 37 Added PENDING JUDGEMENT 14/3/2016 Roadside investigation was proven grossly negligent against plaintiff by defendants Con Hughes and Con Lodge and Scon Simpson a malicious prosecution. The motive for this malicious prosecution was revenge focused against the plaintiff Mr Flowers for previously achieving judgement against NSW Police Force . There was no reasonable or probable cause , further this was a blatant example of " Animus Iniuriandi " the intention to injure the plaintiff Mr Flowers , by the act of the defendant in instigating, initiating and maintaining the prosecution against all evidence and formal lawyer submissions of "no prospects of success" and that the charges were " frivolous " though the Bathurst NSW Police continued to maliciously prosecute . PENDING JUDGEMENT 26/4/2017 Con Hughes and Con Lodge and Scon Simpson Bathurst Local Court Malicious Prosecution. Miscarriage of justice . Perversion of the course of justice. PENDING JUDGEMENT 3/5/16 Con Costello malicious prosecution fabricating of evidence to pervert the course of justice. The pattern of malicious prosecutions against the plaintiff is proven historically and would be proven currently in trial by jury. The motive for this current Bathurst malicious prosecution was revenge focused against the plaintiff Mr Flowers for previously achieving judgement against NSW Police Force for ,malicious false arrest and false imprisonment . There was no reasonable or probable cause in this Bathurst matter only proven institutional corruption and revenge agaists the plaintiff by the defendants. Further this was a blatant example of " Animus Iniuriandi " the intention to injure the plaintiff by the act of the defendant in instigating, initiating and maintaining the malicious prosecution against all evidence and formal lawyer submissions of "no prospects of success" and that the charges were " frivolous " though the defendants continued to maliciously prosecute the plaintiff. 39-43 Plaintiff has added each element number 39B The Negligent Driving charge finding was not , and is a miscarriage of justice . In fairness to Judge Allen , false records were placed before him in that Judge Allen sought to read traffic antecedents as said in transcript 26/4/17 , and in his honour reading the accused persons " falsified traffic antecedents by Con Costelloe's " failure to investigate and further to place a false serious driving record against the accused person was a perversion of the course . And is believed to have added specific weight to event 14/3/16 GL Frost matter being heard by his honour, further other false NSW Police public records against the accused person , Now Removed from NSW Police public records . Would have been available for Judge Allen to read . The negligent driving charge against the accused person was wrongful . The Negligent Driving finding and judgement was a miscarriage of justice. False Instrument false records were before Judge Allen who sought to read the traffic antecedents of Mark Stephen Flowers, it is believed they were maliciously not available to Judge Allen to view. In any case they were "falsified traffic antecedents" and by Bathurst NSW Police Con Costelloe's failure to investigate and further to place a false serious driving record against the accused person was a Perversion of the Course. Trafic antecedents records for Mark Stephen Flowers on that date 26/4/14 Bathurst Local Court must be produced. 39C An additional perversion pf the course of justice, was that in , Mr Flowers historic records {NCC ref no 193010-124233} NOW REMOVED false records against the plaintiff existed for Judge Allen to read. And is believed to have added specific "perverted course weight" to event 14/3/16 GL Frost matter being heard by Judge Allen . These historic records now removed from the Mr Flowers NCC public records, though have been filed in evidence into the Supreme Court in this case . These false records would have been available for Judge Allen to read . The negligent driving finding against the accused person was wrongful , and further during 26/4/17 Bathurst trial it was proven forensically to have been a fabrication by Mr Frost , the same perpetrator who removed the keys from the Flowers car and threw them into the bush , Frost also moved his own vehicle from the crime scene before police arrived ! 41E Added words life threatening Bathurst defendants major life threatening Nonfeasance ! 41H Added at end of paragraph very serious nonfeasance. 42A Added at end of paragraph abuse 43D Added at end of paragraph to escape the deprivation of liberty attempt. 43I Added at end of paragraph was gross negligence perversion of the course .. 45B Addition NSW police force complete failure to consider the plaintiff Mr Flowers ingrained PTSD injury re previous judgement District Court 20091332550 12th February 2014 against NSW Police Force , and this time Bathurst NSW Police had full knowledge of the injury they caused . Though NSW Police commenced and maintained false prosecution against plaintiff Mr Flowers when all evidence led to him being 100% innocent . 45C Added at end of paragraph to these false malicious charges. 46K Added at end of paragraph defendants in her line of duty 46N Clearly in this case Bathurst NSW Police Force Con Hughes and Secon Simpson has completely failed to do there duty this is Gross Negligence and Recklessness or Perversion of the Course of Justice to achieve Malicious Prosecution. Clearly in this case Bathurst NSW Police Force Con Hughes and Secon Simpson and Con Lodge has completely failed to do there duty this is Gross Negligence and Recklessness or Perversion of the Course of Justice to achieve Malicious Prosecution. 53C Bathurst defendants Con Costelloe by complete failure to investigate car park bingle in shopping centre car park , fabricated a false charge against the plaintiff Mr Flowers of " leaving the scene of a major vehicle accident " Judge Allen 26/4/17 asked for the "traffic antecedents at hearing " . This false record to create false instrument applied weight to against Mr Flowers driving record . And is believed to have influenced the wrongful decision to allow negligent driving charge finding against plaintiff Mr Flowers . Other major false NSW Police records against plaintiff Mr Flowers would have also been read by Judge Allen as well . Bathurst defendants Con Costelloe by complete failure to investigate car park bingle in shopping centre car park , fabricated a false charge against the plaintiff Mr Flowers of " leaving the scene of a major vehicle accident " Judge Allen 26/4/17 asked for the "traffic antecedents at hearing " . This false record to create false instrument applied weight to against Mr Flowers driving record . And gave confidence to perverting the course and wrongful malicious decision from Judge Allen to place dales negligent driving finding against Mr Flowers . This is a miscarriage of justice. 54C Spite and ill will against plaintiff Mr Flowers because he has successfully achieved judgement previously against NSW Police Force harming the careers of the officers involved in harming the plaintiff Mr Flowers. Spite and ill will against plaintiff Mr Flowers because he has successfully achieved judgement previously against NSW Police Force harming the careers of the corrupt officers involved for persecuting the plaintiff. 55 - 111 These paragraphs have been added to proposed SoC. 116D Addition of public interest There must be punishment , a Jury must hear all of this evidence as it is a public interest matter case against the state of NSW and must be heard independently by a Jury panel of 12 , as is of National Importance and would be of Major public Interest .
SUBMISSIONS OF THE PARTIES
Submissions of the defendant
CONCLUSION
For the reasons that follow, I have come to the view that in the exercise of my discretion the order sought by the plaintiff should be refused.
To begin with, it will be evident from what appears in the plaintiff's affidavit in support of the motion that underlying his application is the proposition that Harrison J recused himself from the matter. That is plainly not so. The plaintiff's repeated assertion that Harrison J recused himself is a fundamental misconception.
The function of a statement of claim is to set out, with clarity, the case that the defendant must meet, thus satisfying a basic requirement of procedural fairness. [23] In my view, the proposed further amended statement of claim fundamentally fails in that regard. The pleading is embarrassing. It is largely unintelligible, and is so imprecise in its identification of the material factual allegations that it deprives the defendant of proper notice of the real substance of the claim.
The embarrassing nature of the pleading is reflected in a number of ways. If one assumes that the plaintiff's cause of action is one for malicious prosecution, some of the assertions made in the statement of claim appear to agitate an appeal against a finding of the Magistrate in the Local Court. The embarrassing nature of the pleading is further evident from an apparent reliance upon "the human rights bill Queensland 2018", [24] and the "International Covenant on Civil and Political Rights", [25] neither of which have any application to the proceedings.
Paragraphs [111] and following make reference to "trial by jury". As I have indicated, an application that the matter be heard by jury has previously been dismissed by Harrison J.
The precise cause of action that the document seeks to plead is difficult to ascertain. Whilst there are various references to causes of action under the heading "type of claim", some of them, such as "concealment" make no sense. Others, such as defamation, are not the subject of any pleading.
Moreover, the nature and extent of the material in the proposed further amended statement of claim over and above that which appears in the existing statement of claim is completely at odds with the plaintiff's submission that the proposed pleading "does not try to change too much". [26]
There has also been a significant period of time which has elapsed since the defendant filed its defence to the existing statement of claim. No explanation for that delay has been advanced by the plaintiff. To allow an amendment of this kind in those circumstances would, in my view, be contrary to facilitating the overriding purpose set out in s 56 of the CPA, namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings. This is particularly so in circumstances where, as I understand it, the parties are otherwise ready to take a date for hearing.
For all of these reasons, the plaintiff's application should be refused.
I should note that at the conclusion of the submissions I enquired of each party as to whether there was any reason why costs should not follow the event. The plaintiff, as a self-represented litigant, did not appear to understand that principle. Accordingly, and in fairness to him, I do not propose to determine the question of costs at this point. Rather, I will reserve the question of costs and provide the parties with an opportunity to provide short submissions in relation to that question.
ORDERS
Endnotes
Flowers
State of NSW