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
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- [2021] SASCA 75
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CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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