Harrison J states
The background to these proceedings has been adequately recorded in previous judgments of this Court: see, for example, Flowers v State of New South Wales [2019] NSWSC 1308 and Flowers v State of New South Wales [2019] NSWSC 1467, among others. It is unnecessary to repeat what has been said in those earlier decisions.
Mr Flowers now asks me to order that his claim for damages for malicious prosecution be heard by a jury. More than that, Mr Flowers contends, uniquely in my experience, that his application for a jury should itself be determined by a jury.
Section 85 of the Supreme Court Act 1970 provides relevantly as follows:
85 Trial without jury unless jury required in interests of justice
(1) Proceedings in any Division are to be tried without a jury, unless the Court orders otherwise.
(2) The Court may make an order under subsection (1) that proceedings are to be tried with a jury if: (a) any party to the proceedings: (i) files a requisition for trial with a jury, and (ii) pays the fee prescribed by the regulations made under section 18 of the Civil Procedure Act 2005, and (b) the Court is satisfied that the interests of justice require a trial by jury in the proceedings.
(3) The rules may prescribe the time within which a requisition must be filed for the purposes of subsection (2) (a).
(4) A fee paid under this section is to be treated as costs in the proceedings, unless the Court orders otherwise. ...
UCPR 29.2 is in these terms:
29.2 Applications and requisitions for juries in proceedings other than defamation proceedings
(1) This rule applies to proceedings other than defamation proceedings.
(2) An application in proceedings to which this rule applies for the proceedings to be tried by jury must be made by notice of motion.
(3) For the purposes of section 85 of the Supreme Court Act 1970 and section 76A of the District Court Act 1973, a requisition for a jury in proceedings to which this rule applies must be filed at the same time as the notice of motion referred to in subrule (2) is filed.
(4) Unless the court otherwise orders, a notice of motion under subrule (2) must be filed-- (a) if the notice is filed by the plaintiff-- (i) within 56 days after service on the defendant of the statement of claim, or (ii) if a defence is served on the plaintiff within that period, within 28 days after service of the defence on the plaintiff, or (b) if the notice is filed by the defendant-- (i) within 28 days after service on the defendant of the statement of claim, or (ii) if, pursuant to rule 14.3, the court directs some other date for the filing of a defence, within 28 days after the date fixed by the court's direction.
Mr Flowers has not complied with the Act or the rules. Mr Williams of counsel for the State of New South Wales takes no point about this.
In support of his application, Mr Flowers has provided me with a very impressive document headed “Challenge to the Jurisdiction of the Court”. I suggested to Mr Flowers that the enigmatic nature of the document meant that his best course was to have me treat it as a submission in aid of the present application. Mr Flowers accepted my suggestion.
With the aid of that document, Mr Flowers contends that trial by jury is an inalienable right guaranteed to him by the Magna Carta over 800 years ago and remains the common law of the land. He maintained that what he styled “a special jury” should be convened to determine his challenge to the validity or effect any Act or subordinate legislation that derogated from that right.
Although I cannot be certain, many of Mr Flowers’ submissions have a vaguely familiar ring. It is, for example, unusual in my limited experience to be referred to trial by jury as the Palladium of Liberty. Mr Flowers submits that denial of his right to a trial by jury is “sinister, vile and reprehensible”. Lord Edward Coke also gets a run, telling me that “Common law doth control Acts of Parliament and adjudges them when against common right to be void”. I feel confident I have heard similar submissions before.
Mr Flowers’ proposition, to the extent that I understand it, is that his consent to have his case heard without a jury has not been given so that any purported exercise of jurisdiction otherwise than by jury is void. Any such consent must be clear and unequivocal. Somewhat troubling from my personal perspective is Mr Flowers’ submission in the following terms:
“In any action, both parties must give their clear and unequivocal consent to be without a jury. Without that consent, the court has no jurisdiction to proceed summarily and the jurisdiction of the court must be challenged. The challenge can only be judged by a special jury. Should a judge or magistrate dismiss this challenge, then he or she is liable to imprisonment for five years. Should a judge or magistrate dismiss this challenge, that is a violation of due process and the rule of law.”
Mr Flowers also reminds me that no “evil counsellors, judges and [sic, or] ministers” can be allowed to subvert or extirpate the laws and liberties of the people: Bill of Rights, 1688. To deny trial by jury is to deny democracy and to deny democracy is treason.
Mr Flowers’ contentions appear to proceed upon the underlying basis that, to the extent to which s 85 of the Supreme Court Act or UCPR 29.2 operate somehow to modify or extinguish what would otherwise be an automatic right to a trial by jury, they are ineffective or void. Mr Flowers maintains that no Act of Parliament can take away his right to trial by jury. In Mr Flowers’ submission, rights never die. Mr Flowers asserts that “people are not subject to statute law, which is inferior to common law, and are only accountable to common law that is made and imposed by their equals, i.e. accountable only to juries”.
Mr Flowers has submitted that all Acts of Parliament in Australia since 1901, with the Proclamation of the Commonwealth of Australia, have not been lawfully enacted. This is due to the fact that there have been no orders in the Privy Council for the appointments of any Vice Regal executive representatives of the Crown of the United Kingdom to grant the Royal Assent to bring any statutes into effect. Mr Flowers then makes the further troubling, if disconnected, submission that “all Australian judges and magistrates are equally fraudulent”.
At least one difficulty with Mr Flowers’ contentions is that they are no more than that: unsupported assertions. Mr Flowers offers no evidence that could support a claim that, for example, the Supreme Court Act is void or was not enacted according to law.
Another difficulty lies in the fact that this Court and the Court of Appeal have consistently operated upon the basis that s 85 of the Supreme Court Act is a valid law of New South Wales and have applied it accordingly. In the absence of an arguable legal basis supported by evidence that suggests that I should take a different approach, I consider that I am bound to apply the provision according to its terms.
Harrison J had encountered invocation of Coke LJ in Wilson v GIO General Ltd [2007] NSWSC 1445.
The current judgment quotes Mason CJ, Hall J and others regarding the framework for jury trials and directions, with Harrison J stating
The current judgment quotes Mason CJ, Hall J and others regarding the framework for jury trials and directions, with Harrison J stating
I have included this helpful extract in order to assist Mr Flowers to appreciate the now well established regime that governs the circumstances in which a party might demonstrate an entitlement to a jury in civil cases in New South Wales. The general rule in this Court in civil proceedings is trial by judge alone. The Court must be positively satisfied that the disinterested interests of justice require departure from that general rule. The same reasoning applies as well to Mr Flowers’ contention that his entitlement to a jury should be decided by a jury. The alternative for which he contends conjures up the prospect of a never ending descent into litigious absurdity.
In the nature of things, having regard to his fundamental proposition that s 85 is invalid and of no force or effect, Mr Flowers did not address this issue. It will be apparent that I consider that s 85 operates and applies in the present circumstances to govern the question of the mode of trial. If Mr Flowers wished to contend, despite his so-called “jurisdictional” point, that his case warranted trial by jury, because it was in the interests of justice to depart from the usual mode of trial, he should of course be given an opportunity to do so. In the circumstances, given the way in which Mr Flowers approached the matter, I will direct him within 21 days, if so advised, to furnish me with written submissions not exceeding five pages, setting out the reasons why, in his opinion, the interests of justice in this case lead to the conclusion that a jury should determine whether he can demonstrate that he was prosecuted without reasonable and probable cause and maliciously and if so, the quantum of any damages to which he is entitled.
In anticipation of receiving those submissions by 5 June 2020, I will appoint Friday 12 June 2020 before me at 9.30am for judgment and further directions.
Finally I should note that Mr Flowers has appeared throughout in these proceedings without legal advice or assistance or representation. The courts necessarily extend significant latitude to people in his position in order that indolence or suspicion or even choice should not frustrate the prospect of securing the protection of the law and the vindication of a right or access to justice. However, Mr Flowers is not alone in craving his day in court. The resources of this Court and others like it are finite and delays are often unavoidable despite the best efforts of all concerned. Mr Flowers wants his case heard and the State of New South Wales evidently shares his view. In such circumstances it is very important that Mr Flowers not become diverted by unhelpful voices chattering on the sidelines or by loud drums being beaten by folk with unhelpful agendas that are inevitably destined to frustrate his progress before eventually discarding him and moving on to their next target. There must necessarily be a limit to the amount of valuable court time Mr Flowers (or anyone like him) can be permitted to dedicate to silly arguments or confected obsessions that clog the court and waste everybody’s time without advancing his case.
