Flowers v Finlayson - [2021] SASCA 75

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
FLOWERS v FINLAYSON
[2021] SASCA 75
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice Livesey)
9 August 2021

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - TAXATION AND OTHER FORMS OF ASSESSMENT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES
The applicant filed an application for an adjudication of the legal costs paid by him to the respondent. The application was filed nine months out of time.
A Master refused to grant an extension of time. By his notice of appeal, the applicant seeks leave to appeal to the Court of Appeal against the Master’s decision.
Prior to filing this notice of appeal, the applicant had earlier sought leave to appeal the Master’s order by an interlocutory application. The matter came before Parker J in the Chamber List, and his Honour made orders for the filing of written submissions by the parties. By his notice of appeal, the applicant purports to appeal against those orders.
The Chief Justice subsequently considered and refused the applicant’s application for leave to appeal against the Master’s orders, and made an order for costs in favour of the respondent. The applicant seeks leave to appeal against the decision of the Chief Justice.
Held, per the Court, striking out the application for leave to appeal against the Master’s decision, refusing the application for leave to appeal against the decision of the Chief Justice, and striking out the appeal against Parker J’s orders:
1.      Because the decision of the Master was an interlocutory decision, an application for leave to appeal against the Master’s decision lies to a single Judge of the Supreme Court. The applicant’s application seeking leave to appeal to the Court of Appeal against the Master’s orders must be struck out as incompetent.
2.      No error has been identified in the decision of the Chief Justice. This case is not one of the rare cases in which it is appropriate to grant leave to appeal against a decision of practice and procedure, particularly in a matter concerning costs.
3.      Parker J’s orders requiring the applicant to file written submissions are properly characterised as incidental rulings or directions that do not answer the description of an appealable judgment, order or direction. The applicant’s appeal against Parker J’s orders must be struck out as incompetent.
Legal Practitioners Act 1981 (SA) sch 3, cl 37; Uniform Civil Rules 2020 (SA) r 212(1)(a); Supreme Court Act 1935 (SA) s 50, referred to.
Flowers v Finlayson [2021] SASCFC 3; Harris Scarfe Ltd (In Liq) v Ernst & Young (No 2) [2005] SASC 168; Commonwealth v Saadat (2019) 134 SASR 184; Draoui v Le [2021] SASCA 33; McDonald v Attorney-General for the State of South Australia [2021] SASCA 57; Woods Bagot Pty Ltd v Stapledon [2005] SASC 346; Advanced Resources Pty Ltd v Charlton [2007] SASC 393; Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; Police v Williams (2015) 123 SASR 506, considered.

FLOWERS v FINLAYSON
[2021] SASCA 75

Court of Appeal – Civil: Lovell, Doyle and Livesey JJA
The Court:
Introduction

Mr Flowers seeks leave to appeal from a Master’s decision to refuse an application for an extension of time within which to apply for an adjudication of legal costs, and to summarily dismiss the underlying adjudication application. Mr Flowers also seeks leave to appeal from the subsequent decision of the Chief Justice refusing leave to appeal against the Master’s decision. He also purports to appeal the orders of Parker J requiring the filing of written submissions on the question of leave which predated the refusal by the Chief Justice.
For the reasons that follow, Mr Flowers’ application for leave to appeal from this Court against the Master’s decision is incompetent and should be struck out. Mr Flowers’ application for leave to appeal the decision of the Chief Justice should be refused. His appeal against the orders of Parker J should also be struck out on the ground that it is incompetent.
Background
The background to the matters in issue between Mr Flowers and Mr Finlayson is set out in detail in the reasons of the Full Court in Flowers v Finlayson.[1]
[1] Flowers v Finlayson [2021] SASCFC 3.
For present purposes, it is sufficient to note that Mr Finlayson is a legal practitioner who was retained by Mr Flowers in proceedings in which he was involved in the Family Court in or about September 2014. The details of the agreement pursuant to which Mr Finlayson was retained have been the subject of considerable dispute throughout the history of this litigation. Mr Finlayson’s case is that he agreed to act in the proceedings for a fixed sum of $15,000, and it is common ground that that sum was paid into Mr Finlayson’s trust account by Mr Flowers at around the time Mr Finlayson was retained.
Mr Finlayson commenced acting for Mr Flowers in the proceedings, but his retainer was terminated after the first day of the trial. He subsequently sent Mr Flowers a number of invoices and ultimately transferred funds out of his trust account in satisfaction of those invoices.
On 21 December 2015, Mr Flowers filed an application for an adjudication of the legal costs paid by him to Mr Finlayson. The application was filed some nine months out of time. In making the application, it was Mr Flowers’ contention that the parties had never made an agreement of the nature alleged by Mr Finlayson. In particular, he disputed that he received the terms of the retainer, that he received any invoices, and that it was ever agreed that a sum of $15,000 would be charged by Mr Finlayson to act in the proceedings. It is this application, and the manner in which it was resolved, that forms the basis of this proposed appeal.
As the factual dispute between the parties in relation to the retainer was relevant to the decisions of both the Master and Chief Justice, it is relevant to note at this point that the nature of the costs arrangement between the parties has been the subject of findings by the Legal Profession Conduct Commissioner (the Commissioner), the Legal Practitioners Disciplinary Tribunal (the Tribunal) and the Full Court of this Court. It is convenient to summarise those findings to the extent that they are relevant to the proposed appeal before turning to the Master’s decision.
On 9 October 2014, Mr Flowers lodged a complaint with the Commissioner about Mr Finlayson’s conduct in connection with the proceedings. Through his complaint, Mr Finlayson disputed the terms of the retainer, and, in particular, disputed the amount to be charged and the manner in which Mr Finlayson had dealt with money in his trust account.
On 2 July 2015, the Commissioner dismissed Mr Flowers’ complaint, finding, inter alia, that there was no evidence to suggest that the work done was excessive, or that Mr Finlayson had overcharged for the work done. However, the Commissioner noted that any continuing dispute about the terms of the retainer would amount to a contractual dispute that should be determined by a court.
Mr Flowers then prosecuted a private complaint against Mr Finlayson before the Tribunal. After 15 days of hearing spread over many months, the Tribunal dismissed all charges on 20 December 2018. As with the Commissioner, the Tribunal found that there was “no overcharging or any other irregularity in the rendering of accounts by the practitioner for work done pursuant to the costs agreement such as to amount to unprofessional conduct”. The Tribunal also accepted that the terms of the retainer were as alleged by Mr Finlayson, finding that the costs position had been both discussed with Mr Flowers and confirmed via an email sent to him by Mr Finlayson.
Mr Flowers subsequently filed an appeal against the decision of the Tribunal. That appeal was dismissed by the Full Court earlier this year.
The Master’s decision
As mentioned, Mr Flowers applied for an adjudication of the costs paid by him to Mr Finlayson in December 2015. Mr Finlayson filed an application to have the proceedings summarily dismissed on the bases that the application was out of time and vexatious.
The application initially came before the Master for argument on 20 April 2018, at which time his Honour heard submissions as to whether an extension of time should be granted. The Master deferred making a decision pending the determination of the Tribunal proceedings, and ultimately delivered his reasons on 17 March 2021 following the finalisation of those proceedings and the abovementioned Full Court appeal.
The Master commenced by summarising the background to the matter and then set out the terms of clause 37 of Schedule 3 to the Legal Practitioners Act 1981 (SA) which, in September 2014, were as follows:
37 – Application by clients or third party payers for adjudication of costs
(1)    The Supreme Court may –
(a)     on the application of a client for an adjudication of the whole or any part of legal costs; or
(b)     on the application of a third party payer for an adjudication of the whole or any part of legal costs payable by the third party payer, adjudicate and settle the bill for those costs.
(2)An application for an adjudication of costs may be made even if the legal costs have been wholly or partly paid.
(3)If any legal costs have been paid without a bill, the client or third party payer may nevertheless apply for an adjudication.
(4)An application by a client or third party payer for an adjudication of costs under this clause must be made within 6 months after –
(a)     the bill was given or the request for payment was made to the client or third party payer; or
(b)     the costs were paid if neither a bill was given nor a request was made.
(5)     However, an application that is made out of time, otherwise than by –
(a)     a sophisticated client; or
(b)     a third party payer who would be a sophisticated client if the third party payer were a client of the law practice concerned,
may be dealt with by the Supreme Court if the Court, on application by the client or third party payer who made the application for adjudication, determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for adjudication to be dealt with after the 6 month period.
…
The Master considered whether it was an appropriate case to exercise his discretion to grant an extension of time within which to seek an adjudication pursuant to cl 37(5). His Honour commenced by noting that the delay in the present case was “substantial”; at the time Mr Flowers filed the application, almost 15 months had elapsed since the issue of the invoices, making for a delay of nine months beyond the six months permitted by cl 37(4).
The Master then considered the history of the complaints made by Mr Flowers against Mr Finlayson, and the manner in which other bodies and courts had dealt with those complaints. His Honour summarised the abovementioned findings of the Commissioner, the Tribunal and the Full Court, and concluded that these findings meant it was “no longer open to [Mr Flowers] to argue that the terms of the retainer were other than those accepted by the [Tribunal].” On this basis, the Master considered that there was relatively little utility in proceeding to tax the costs and was not satisfied that it was “just and fair” to grant an extension of time. His Honour refused the application for an extension and dismissed the proceedings.
By his notice of appeal dated 21 May 2021, Mr Flowers seeks leave to appeal to the Court of Appeal against the decision of the Master.
The decisions made by the Chief Justice and Parker J
Prior to filing this notice of appeal, by an interlocutory application filed on 25 March 2021, Mr Flowers had earlier sought leave to appeal the Master’s orders.
On 16 April 2021, the matter came before Parker J in the Chamber List. His Honour made orders for the filing of written submissions by the parties. By his notice of appeal, Mr Flowers purports to appeal against those orders. He has not explicitly sought leave to do so.
The matter then came before the Chief Justice on 21 May 2021. On that occasion, his Honour considered and refused Mr Flowers’ application for leave to appeal against the Master’s orders and made an order for costs in favour of Mr Finlayson in the amount of $200.
The Chief Justice commenced his reasons with a brief background of the proceedings, before noting Mr Flowers’ failure to identify any principle of general importance capable of justifying a grant of leave to appeal against a costs decision. His Honour observed that Mr Flowers’ application for leave had focussed upon the complaints he had already made before the Commissioner and the Tribunal, which had already been resolved in Mr Finlayson’s favour. In refusing leave to appeal, his Honour concluded:
Having regard to those adverse findings of fact, the long period of time that has now elapsed since the work was done and the invoices provided, the failure of Mr Flowers to identify an error which would vitiate the Master’s discretion and the failure to identify an error that raises a question of public importance – I refuse Mr Flowers’ application for permission to appeal.
Mr Flowers now seeks leave to appeal against the decision of the Chief Justice.
As mentioned, Mr Flowers seeks leave to appeal the decisions of both the Master and the Chief Justice, and purports to appeal the timetabling orders of Parker J. It is convenient to address each of these in turn.
The Master’s decision
An application for leave to appeal against the Master’s decision lies to a single Judge of the Supreme Court, the decision of the Master being an interlocutory decision.[2] As Mr Flowers has already attempted to invoke this avenue unsuccessfully before the Chief Justice, it is not now open to him to apply to the Court of Appeal for leave to appeal against the Master’s decision.
[2] Uniform Civil Rules 2020 (SA), r 212.2(1)(a).
Mr Flowers’ application to the Court of Appeal seeking leave to appeal against the Master’s orders must be struck out and dismissed on the basis that it is incompetent.
The Chief Justice’s decision
In determining whether to grant leave to appeal against the Chief Justice’s refusal of leave to appeal, the Court must consider both whether the decision sought to be impugned is attended by sufficient doubt to warrant it being reconsidered on appeal, and whether allowing the decision to stand would result in substantial injustice to the applicant.[3]
[3] Harris Scarfe Ltd (In Liq) v Ernst & Young (No 2) [2005] SASC 168, [4]-[11] (Bleby J); Commonwealth v Saadat (2019) 134 SASR 184, [50]-[52] (Kourakis CJ, with whom Peek and Nicholson JJ agreed); Draoui v Le [2021] SASCA 33, [60] (Lovell, Doyle and Livesey JJA); McDonald v Attorney‑General for the State of South Australia [2021] SASCA 57, [12] (Kelly P, Lovell and Doyle JJA).
The Court will generally be hesitant to grant leave to appeal on a matter of practice and procedure, and should only do so if the proposed appeal raises an issue of principle or general importance.[4] That hesitance is more pronounced where the matter concerns a question of costs.[5] As the Full Court of this Court observed in Advanced Resources Pty Ltd v Charlton:[6]
The Full Court will rarely grant permission to appeal against a decision on a question of costs. There is a long-standing practice to this effect. In part the practice rests on the discretionary nature of a decision as to costs. It is only rarely that a decision on the question as to costs will raise an issue of principle, or an issue which, in the interests of justice, should be reviewed on appeal.
[4]     See, eg, Woods Bagot Pty Ltd v Stapledon [2005] SASC 346 (Perry J).
[5]     See, eg, Mitropoulos v Hancock Corporation Pty Ltd [2007] SASC 43, [13] (Doyle CJ, Gray and David JJ).
[6]     Advanced Resources Pty Ltd v Charlton [2007] SASC 393, [4] (Doyle CJ, Anderson and White JJ).
The Chief Justice’s exercise of discretion to refuse leave to appeal is not attended by sufficient doubt to warrant its reconsideration on appeal. Before this Court, Mr Flowers simply seeks to reagitate the factual matters put before both the Master and the Chief Justice: that is, that he never received any invoices, did not receive the terms of the retainer, and never agreed to pay a sum of $15,000. No point of principle or general importance has been identified. Aside from his alternate version of events, which in light of the findings of the Commissioner and the Tribunal cannot be accepted, Mr Flowers has not identified any reason to doubt the correctness of the Chief Justice’s decision.
Allowing the Chief Justice’s decision to stand will not occasion Mr Flowers substantial injustice. At best, the effect of a successful appeal in this Court would be to enable Mr Flowers to appeal the Master’s decision. In light of the findings of the Commissioner, the Tribunal and the Full Court, there is little or no utility in permitting Mr Flowers to do so.
This case is not one of those rare cases in which it is appropriate to grant leave to appeal against a decision of practice and procedure, particularly in a matter concerning costs. The application for leave to appeal against the decision of the Chief Justice must be refused.
Parker J’s orders
Parker J’s orders requiring Mr Mr Flowers to file written submissions are properly characterised as incidental directions that do not answer the description of an appellable judgment, order or direction.[7] As King CJ explained, in a passage from his Honour’s reasons in Legal Practitioners Complaints Committee v A Practitioner[8] which was approved by the Full Court in Police v Williams:[9]
The question for decision is whether the learned judge's decision as to the competency of the appeal is a judgment or order within the meaning of s 50 [of the Supreme Court Act 1935 (SA)]. The word “direction” is also used in subs (1) but I think that that word may be ignored. I do not think that it can add anything to the words “judgment” and “order”. It is noteworthy that the requirement for leave is confined in subs (3) to judgments and orders of an interlocutory nature. There is no reference to “direction”. I should think that any judicial act which could be characterised as a “direction” would be likely to be interlocutory. If the word “direction” in subs (1) were not surplusage there would therefore be a class of interlocutory judicial acts known as “directions” which would be appealable without leave. That is clearly not the meaning of the section. I have no doubt that all decisions made appealable by s 50(1) are comprehended by the words “judgment” and “order” and that the use of the word “direction” was not intended to extend the class of appealable decisions beyond those comprehended by those expressions.
There is no completely satisfying definition of either “judgment” or “order” and no exhaustively definitive way of distinguishing between judicial acts which should be characterised as judgments and judicial acts which should be characterised as orders. Fortunately it is unnecessary for present purposes to make such a distinction. If the decision falls within either description it is appealable.
A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact, law or procedure made during the course of a hearing. Such incidental rulings are not judgments or orders and are therefore not appealable even by leave.
(emphasis added)
[7]     Edwards v Olsen [2000] SASC 360, [11] (Perry J).
[8]     Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126, 127.
[9]     Police v Williams (2015) 123 SASR 506, [14].

On this basis, Mr Flowers’ appeal against Parker J’s orders must be struck out as incompetent.
However, even if Parker J’s orders are interlocutory in nature, Mr Flowers requires leave to appeal and this would not be an appropriate case in which to grant leave. There is no utility in an appeal against orders which have now been overtaken by the orders of the Chief Justice.
Conclusion
Mr Flowers’ application for leave to appeal against the decision of the Master is dismissed. Leave to appeal against the decision of the Chief Justice is refused. Mr Flowers’ purported appeal against the orders of Parker J is dismissed.