Supreme Court New South Wales Medium Neutral Citation: Flowers v State of New South Wales [2020] NSWSC 526 Hearing dates: 8 May 2020 Date of orders: 14 May 2020 Decision date: 14 May 2020 Jurisdiction: Common Law Before: Harrison J Decision: Application for trial by jury refused with costs Catchwords: CIVIL PROCEDURE – where application by plaintiff for trial by jury – whether s 85 of Supreme Court Act 1970 applies – where trial by jury refused Legislation Cited: Bill of Rights 1688 (UK) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Flowers v State of New South Wales [2019] NSWSC 1308 Flowers v State of New South Wales [2019] NSWSC 1467 Maroubra Rugby League Football Club Inc v Malor (2007) 69 NSWLR 496; [2007] NSWCA 39 Category: Procedural and other rulings Parties: Mark Stephen Flowers (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: A Williams (Defendant) Solicitors: McCabe Curwood (Defendant) File Number(s): 2019/117371 Publication restriction: Nil Judgment 1. HIS HONOUR: 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. 2. 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. 3. 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. (5)… 1. 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. 1. 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. 2. 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. 3. 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. 4. 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. 5. 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." 1. 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. 2. 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". 3. 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". 4. 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. 5. 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. 6. In Maroubra Rugby League Football Club Inc v Malor (2007) 69 NSWLR 496; [2007] NSWCA 39, Mason P said this: "[16] Unlike its predecessor, s 85 states a general rule that civil proceedings in the Supreme Court are to be tried by judge alone (cf s17 and the Third Schedule as to criminal proceedings). The power (or perhaps discretion) to order otherwise is only engaged if subs(2) is complied with. A party must take the initiative by filing a requisition for trial with a jury and paying the prescribed fee, but the Court must also be satisfied that the interests of justice require a trial by jury in the (particular) proceedings. [17] In light of the terms and structure of subs(2) it is clear that the 'interests of justice' refer to considerations going beyond the private interests of the parties, a fortiori the private interests of one of the parties. This was also noted in Parliament when the Bill, (then referring to the requisitioning party satisfying the Court that there was a 'special need' for a jury trial), was altered to its present party-neutral form (Parliamentary Debates, Legislative Council, 13 December 2001, p20287; Legislative Assembly, 14 December 2001, pp19899-19900). [18] A party's self-interested right to requisition for trial by jury is not to be endorsed in order to advantage that party. The Court must be positively satisfied that the disinterested interests of justice require departure from the general rule of trial by judge alone. [19] So long as it remains focussed on the statutory test, the Court may have regard to the incidents of the two different modes of trial both generally and in their application to the particular proceedings. But it must not lose sight of the fact that, as a general proposition, '[i]n a system of justice providing those two modes of trial it must be assumed that each is a satisfactory mode of trial and one which is calculated to produce a fair trial of the action according to law.' (Darrel Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401 at 410 per Winneke CJ, for the Full Court). [20] Our attention was drawn to the remarks of the Attorney General, Mr Debus, when moving the second reading of the Courts Legislation Amendment (Civil Juries) Bill 2001 (Parliamentary Debates, Legislative Assembly, 28 November 2001 pp 19038-19040). The speech discloses that the mischief perceived by the Government was that jury trials can be more costly and time consuming than trials before a judge alone. The relevance of these factors as the basis of the present s 85 stands in marked contrast to the situation prevailing under its predecessor (see Pambula District Hospital at 402-4, 412-13). [21] But it is not possible to give any weight to the Minister's later statements about the intention of the Government as to how the new legislation will operate. Statutes are made by Parliament and not the Government. The language of an enactment is the means of determining the 'intention' of the Legislature (Wilson v Anderson (2002) 213 CLR 401 at 418[8]-[9]). The circumstances in which useful and legitimate light can be cast upon statutory language by reference to what is said in debates in Parliament is limited (Interpretation Act 1987, s34) … [22] Apart from the difficulties of principle involved in construing legislation by reference to statements of government intention made in a second reading speech, there is particular need for caution in the present case in that s 85 does not use the language of 'special need'. This was the language of the Bill at the time of the second reading speech in which Mr Debus said that 'it is intended that these amendments will restrict the use of civil juries to those cases where a special need is demonstrated'. The Attorney recognised that the Bill was not prescriptive about the requisite 'special need' because it was intended that each case would be considered on its merits. He thought it likely that juries would be employed in, for example, civil actions where there may be questions of fraud or even major issues of credibility involving either the plaintiff or the defendant. The Bill was amended in Committee by removing the 'special need' criterion and replacing it with the present language referring to the interests of justice. [23] We were referred to two decisions by judges of the Common Law Division, apart from the one under appeal, involving an application for trial by jury under the present statutory regime. They were Muir v Council of Trinity Grammar School [2005] NSWSC 555 (Hall J) and Cross v Theiss Pty Ltd [2006] NSWSC 1455 (Adams J). Simpson J in the present case and Adams J in Cross generally followed Hall J in Muir. I too have been assisted by his Honour's analysis, but respectfully disagree with it in certain respects detailed below. [24] In Muir, Hall J said (at [10], ninth dot point…): The inquiry under s 85(2)(b) accordingly requires the identification of specific factors which indicate, in particular proceedings, that the former mode of trial [ie trial by jury] is warranted in the interests of justice. In other words, it is incumbent upon an applicant seeking an order under those provisions to establish a substantial reason which would both justify and warrant a departure from what is now the normal method or mode of trial in civil proceedings. Simpson J in the present case (at [16]) endorsed this reasoning, as did Adams J in Cross at [7]. [25] There is, in my view, a subtle but significant distinction between circumstances 'warranting' a course of action and circumstances 'requiring' it. I am not suggesting that the applicant for jury trial must show ineluctable necessity, but the statutory language of 'require' connotes that which is obligatory, not that which is authorised. To speak of something being 'warranted' smacks of the latter without the added stricture of the former. [26] When he came to summarise his views, Hall J concluded (at [10], thirteenth dot point) that s 85(2)(b) involves… : an evaluation as to whether the proceedings raise questions that ought to be resolved by a jury employing the common sense and values of the average jury person . Simpson J indicated (at [19]-[20]) that she approached the section on the same basis. [27] Once again, I would respectfully disagree with Hall J, while recognising that his Honour may not have intended to depart from the statutory mandate when he spoke of this evaluation. In my opinion, consideration about whether questions 'ought' or 'ought not' to be resolved by a jury involves an unwarranted departure from the statutory language. The departure becomes dangerous when it is accompanied (as it was in varying ways in the three first instance decisions referred to) with reasoning that proceeds from the assumed rationale of jury trial at common law and balances the perceived advantages of jury trial against the perceived disadvantages of trial by judge alone. [28] Each judge drew support from the remarks of Tamberlin J in Stalyce Holdings (Aust) Pty Ltd v Cetec Pty Ltd (2002) ATPR 41-866; [2002] FCA 278. His Honour was addressing an application pursuant to s 86A of the Trade Practices Act 1974 to remove proceedings from the Federal Court of Australia to the Supreme Court of New South Wales on the ground that it was, in the language of s 86A(2)(b), 'otherwise in the interests of justice' to do so. It was alleged that Channel 7 had broadcast information in its current affairs program 'Today Tonight' that contained false representations. There were also claims in defamation. Channel 7 sought transfer of the proceedings to the Supreme Court so that it could have trial by jury. In refusing the application, Tamberlin J said at [15]: So far as a jury is concerned, I recognise the force of considerations which favour a jury hearing in some cases as expounded in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 166 ff. However, on questions of identification, I am not persuaded that the questions raised in this case have any particular features which mandate determination by a jury. This is not a case where general community contemporary values are involved, as may be the case in proceedings where moral, ethical or general social values are involved. This is a case where assessments have to be made as to what representations were in fact conveyed by the statements and conduct in question concerning Stalyce and its coolants. There is no reason in principle why a Judge cannot decide such questions in a satisfactory manner. The determination of whether alleged imputations are conveyed by statements or conduct is a process which can be determined by a Judge alone. The case has a strong commercial element to it and is by no means dissimilar to cases heard on almost a daily basis in the Court concerning Trade Practices litigation under Part V of the TPA. [29] Tamberlin J's reference to cases 'where general community contemporary values are involved, as may be the case in proceedings where moral, ethical or general social values are involved' was not intended and ought not to be read as the touchstone for the rationale of trial by jury (in defamation or other matters), let alone the touchstone whereby the Supreme Court may decide whether it is satisfied that the interests of justice require it to order trial by jury. Section 86A of the Trade Practices Act 1974 uses the words 'in the interests of justice' in a context different to the one at hand. Section 85 of the Supreme Court Act is concerned, and only concerned, with whether the interests of justice require departure from the mandated general rule that civil proceedings in the Supreme Court are to be tried without a jury. [30] One frequently encounters statements in other contexts that jurors bring a range of views to a problem, and that those views (individually and collectively) may be closer to the assumed thinking of 'the public' or 'the community' than that of a judge sitting alone. Sometimes this reasoning proceeds from the maxim that two heads are better than one. At other times, one detects a notion that the life experience of judges is somehow deficient to the task at hand, or at least not as full as that of the group of randomly selected jurors. (Cf Cross at [11]-[12].) At other times the thrust is that a jury verdict is more acceptable simply because the defendant's fate has been determined by his or her 'peers' or because there has been public participation in the curial process. [31] Whatever the objective reality, these considerations are not a sufficient basis for resolving the matter posed by s 85(2)(b). Parliament has made the call that trial by judge alone is the norm. Absence of a 'representative' or 'community' viewpoint is not an inherent defect of trial by judge alone. [32] Section 85(2)(b) does not direct or permit the Court to weigh which mode of trial is preferable in the proceedings and to prefer trial by jury if traditional considerations or perceptions would have supported that mode (see McDermott v Collien (1953) 87 CLR 154 at 157). Nor does it permit judicial fact-finding to be dispensed with on the basis that jurors may be perceived to be better equipped to discern 'moral, ethical or general social values', assuming them to be relevant to the task at hand. The standard required by s 85(2)(b) is high and absolute, namely that the judge must be satisfied that the interests of justice require trial by jury in the instant proceedings. [33] With respect to the Attorney General's views when addressing the differently worded Bill, I do not think that the presence of fraud allegations or major credibility issues will suffice. Judges can and do decide such matters frequently. Unlike juries, their reasons are fully exposed, thereby aiding appellate accountability, itself a matter that serves the interests of justice. This is not to deny that the combination of serious credibility issues and something more (for example, a serving judge as a potential witness) might require trial by jury in the interests of justice. [34] Decision-making may be value-laden. But great caution is, in my view, required before a court could be satisfied that reference to 'community' or 'moral, ethical or general social values' were pertinent to any proceedings and that this could satisfy the judge that the interests of justice require departure from the general rule. [35] It is the judge, not the jury, who decides whether a duty of care exists and what is its scope. (Simpson J's remark (at [26]) that juries have 'long been accustomed to determining complex issues of fact and law' was a slip.) While the jury determines factual issues, including questions of breach in negligence, that task proceeds in accordance with the law as directed by the judge. In negligence, it is concerned with what is reasonable in the circumstances, in light of the evidence presented. The verdict has no precedential value (Swain v Waverley Municipal Council (2005) 220 CLR 517 at 589). [36] A juror has no authority to disregard instructions because he or she is unhappy with the morality of the ground rules. Moral, ethical or social values are only pertinent so far as they address the task at hand. They should be clearly identified if they are to be taken into account as part of the reasoning towards satisfaction that s 85(2)(b) is met." (Emphasis added) 1. 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. 2. 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. 3. 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. 4. 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. ********** 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: 14 May 2020