Flowers v Finlayson - [2023] SASCA 9

Supreme Court of South Australia
(Court of Appeal: Civil)
FLOWERS v FINLAYSON
[2023] SASCA 9
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Nicholson)
10 February 2023
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
The appellant sought leave to appeal the dismissal of his amended claim by a Master. The appellant’s amended claim sought to relitigate matters finalised in proceedings before the Legal Practitioners Disciplinary Tribunal and the Full Court.
The appeal was heard together with an interlocutory application to preserve records pending the finality of appeals including any application for special leave to appeal to the High Court.
The Court held:
1.The appellant has not demonstrated that the Master erred in summarily dismissing the claim on the basis that it was precluded by issue estoppel.
2.In any event, the prosecution of a case based on the same facts and criticisms as were considered and rejected by the Tribunal and the Full Court could properly be said to amount to an abuse of process, because it would be necessary to relitigate the same controversy in order to obtain contrary findings.
3.There was no utility in granting leave to appeal or in granting an extension of time.
4.Leave to appeal must be refused and the appeal dismissed.
5.There was no basis to make an order to preserve documents pending the finalisation of the action and the interlocutory application must be dismissed.

Uniform Civil Rules 2020 (SA) rr 143.1, 144.2(2), referred to.
Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Blair v Curran (1939) 62 CLR 464; Chapman & Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181; Cosenza v Roy Morgan Interviewing Services Pty Ltd [2020] SASC 65; Flowers v Finlayson [2021] SASCFC 3; Hunter v Chief Constable of the West Midlands Police [1982] AC 529; Kuligowski v Metrobus (2004) 220 CLR 363; Ramsay v Pigram (1968) 118 CLR 271, 276; The Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353, considered.

FLOWERS v FINLAYSON
[2023] SASCA 9
Court of Appeal – Civil: Livesey P, Doyle JA and Nicholson AJA
THE COURT (ex tempore):
Introduction

By an amended Notice of Appeal, the appellant challenges the summary dismissal of his claim on 21 October 2022. The appellant seeks leave to appeal and an extension of time. He also challenges the order that he pay the respondent’s costs on a standard costs basis as well as the certificate that the costs were fit for counsel.
Associated with the appeal is the request for an order that, amongst others, the Commonwealth Bank preserve all records pending finality of appeals including any application for special leave to appeal to the High Court.
For the reasons that follow, leave to appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Flowers v Finlayson

Details

AGLC: Flowers v Finlayson [2023] SASCA 9
Case: [2023] SASCA 9
Decision Date: 10 February 2023

CaseChat Overview and Summary

The appellant sought to appeal a decision of a judge who had ordered the dismissal of proceedings. The dispute concerned a case brought by the appellant based on facts and criticisms that had previously been considered and rejected by a tribunal and the Full Court. The appeal was heard by the Supreme Court of [Jurisdiction - implied from context, but not explicitly stated].

The primary legal issue before the Supreme Court was whether the judge had erred in ordering the dismissal of the appellant's case. This involved considering whether the prosecution of the proceedings, given the prior adverse findings, constituted an abuse of process.

The Court reasoned that pursuing a case with the same factual basis and criticisms as those already rejected by a tribunal and the Full Court would necessitate relitigating the same controversy to achieve contrary findings. Such an action was properly considered an abuse of process. Consequently, the appeal was found to be without merit.

The Court ordered that the appeal be dismissed. It also dismissed an application for an order directed to the Commonwealth Bank to preserve documents pending the finalisation of the action, finding no utility in granting leave to appeal or an extension of time.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant has failed to demonstrate that the Judge was wrong to take the step of ordering dismissal in this case. Indeed, the prosecution of a case based on the same facts and criticisms as were considered and rejected by the Tribunal and the Full Court could properly be said to amount to an abuse of process, because it would be necessary to relitigate the same controversy in order to obtain contrary findings.[18][18] Hunter v Chief Constable of the West Midlands Police [1982] AC 529.Conclusion As the appeal is without merit, there is no utility in granting leave to appeal (assuming that leave is required) or in granting an extension of time. Likewise, there appears to be little point in making an order directed to the Commonwealth Bank to preserve documents pending the finalisation of this action. That application must be dismissed. The appeal must be dismissed.

Ratio Decidendi

Legal Principle Established

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