Flowers v Finlayson

Case [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…

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Flowers v Finlayson [2021] SASCA 75
Case
[2021] SASCA 75
Decision Date

CaseChat Overview and Summary

The case involved Mr Flowers, who sought to appeal decisions made by a Master, the Chief Justice, and Parker J concerning an application for the adjudication of legal costs paid to Mr Finlayson, a legal practitioner. Mr Flowers had engaged Mr Finlayson in Family Court proceedings in 2014, and a dispute arose regarding the terms of the retainer and the costs charged. Mr Flowers subsequently filed an application for adjudication of these costs, which was made out of time.

The Court of Appeal was required to determine whether Mr Flowers had a right to appeal the Master's decision to grant or refuse an extension of time for the adjudication of costs, whether leave to appeal the Chief Justice's decision should be granted, and whether Parker J's orders for written submissions were appealable. The central legal issues revolved around the nature of the decisions made by the lower courts and the criteria for granting leave to appeal interlocutory or procedural matters.

The Court reasoned that the Master's decision to refuse an extension of time for the adjudication of costs was an interlocutory decision, meaning an appeal against it required leave from a single judge of the Supreme Court, not the Court of Appeal directly. Consequently, Mr Flowers' application for leave to appeal the Master's decision to the Court of Appeal was deemed incompetent. Regarding the Chief Justice's decision, the Court found no identified error and concluded that the case did not present the rare circumstances necessary to grant leave to appeal a decision concerning practice and procedure, particularly in matters of costs. Furthermore, Parker J's orders were characterised as incidental directions rather than appealable judgments, rendering the appeal against them incompetent.

Accordingly, the Court of Appeal struck out Mr Flowers' application for leave to appeal against the Master's decision and his appeal against Parker J's orders. The application for leave to appeal against the Chief Justice's decision was refused.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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