Flowers v Finlayson - [2021] SASCA 21

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
FLOWERS v FINLAYSON
[2021] SASCA 21
Judgment of the Court of Appeal (ex tempore)
(The Honourable Justice Doyle and the Honourable Justice Bleby)
9 April 2021

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - TAXATION AND OTHER FORMS OF ASSESSMENT
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL
This judgment concerns various matters that have arisen in connection with appeals filed on behalf of Mr Flowers.
Mr Finlayson is a legal practitioner who, for a period, represented Mr Flowers in proceedings in which he was involved in the Family Court. Mr Flowers subsequently complained to the Legal Profession Conduct Commissioner about Mr Finlayson’s conduct in connection with these proceedings. The Commissioner dismissed this complaint, but Mr Flowers then prosecuted a private complaint before the Legal Practitioners Disciplinary Tribunal. The Tribunal dismissed all charges, and ordered that Mr Flowers pay Mr Finlayson’s costs of and incidental to the Tribunal proceedings.
Mr Flowers appealed the Tribunal’s order dismissing the charges against Mr Finlayson, and filed a notice of appeal seeking to appeal the Tribunal’s costs order. On 3 February 2021, the Full Court published its reasons for dismissing the substantive appeal, but did not address the costs appeal, which Mr Flowers wishes to pursue. Mr Flowers’ notice of appeal alleges that the Tribunal’s decision to dismiss all charges was obtained through fraud, and that the costs order was incorrect having regard to the facts, evidence and law in the substantive proceeding.
Further, following the orders made by the Tribunal, Mr Finlayson brought an application before a Master seeking an adjudication of the costs order made in his favour. Mr Finlayson’s claim was for disbursements only in the amount of $79,774.23, including counsel fees of $73,854. The Master fixed Mr Finlayson’s costs in the amount of $72,000. Mr Flowers subsequently filed a notice of appeal against the Master’s adjudication of the costs order.
Mr Flowers also filed an application for special leave to appeal to the High Court against the Full Court’s decision on the substantive appeal, and seeks a stay of the Full Court’s judgment in that matter pending the hearing and determination of this application.
Finally, Mr Flowers has brought an application for the disqualification.
Held, per Doyle and Bleby JJA, dismissing the costs appeal and Mr Finlayson’s application to strike out that appeal, dismissing the appeal against the Master’s adjudication of costs order, dismissing the stay application, and dismissing the application for disqualification:
1. The Full Court having dismissed Mr Flowers’ substantive appeal, there is no basis for interfering with the Tribunal’s costs order.
2. There is consequently no utility in, and no need to consider, Mr Finlayson’s application to dismiss the costs appeal.
3. There is no merit in Mr Flowers’ appeal against the Master’s adjudication of the costs order in Mr Finlayson’s favour.

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 [2021] SASCA 21
Case: [2021] SASCA 21
Decision Date: 9 April 2021

CaseChat Overview and Summary

This matter concerned an appeal by Mr Flowers against a costs order made by a Tribunal, and a further appeal against the adjudication of that costs order by a Master. Mr Finlayson sought to strike out Mr Flowers’ appeal against the costs order. The Full Court of the Supreme Court of South Australia was required to determine the merits of these appeals and applications.

The legal issues before the Court included whether there was a basis to interfere with the Tribunal's costs order, the utility of Mr Finlayson's application to strike out the costs appeal, the merits of Mr Flowers' appeal against the Master's adjudication of costs, and whether a stay of the Full Court's judgment should be granted. Additionally, the Court considered an application by Mr Flowers for the disqualification of Livesey JA.

The Court, per Doyle and Bleby JJA, reasoned that as the Full Court had previously dismissed Mr Flowers’ substantive appeal, there was no foundation to interfere with the Tribunal’s costs order. Consequently, Mr Finlayson’s application to strike out the costs appeal was dismissed as lacking utility. The Court found no merit in Mr Flowers’ appeal against the Master’s adjudication of costs, nor any basis for a stay of the judgment. The application for disqualification was dismissed as Livesey JA was not a member of the Court for the purposes of the matters before it.

The Court ordered that Mr Flowers’ appeal against the costs order be dismissed, Mr Finlayson’s application to strike out that appeal be dismissed, Mr Flowers’ appeal against the Master’s adjudication of costs be dismissed, and Mr Flowers’ application for a stay and disqualification be dismissed. The parties were to be heard as to the costs of the various matters addressed.

Orders

Orders of the court

Held, per Doyle and Bleby JJA, dismissing the costs appeal and Mr Finlayson’s application to strike out that appeal, dismissing the appeal against the Master’s adjudication of costs order, dismissing the stay application, and dismissing the application for disqualification:

1. The Full Court having dismissed Mr Flowers’ substantive appeal, there is no basis for interfering with the Tribunal’s costs order.

2. There is consequently no utility in, and no need to consider, Mr Finlayson’s application to dismiss the costs appeal.

3. There is no merit in Mr Flowers’ appeal against the Master’s adjudication of the costs order in Mr Finlayson’s favour.

4. None of the matters raised by Mr Flowers provide any basis for a stay of the Full Court’s judgment.

5. There is no occasion to consider the application for disqualification, as the Judge in question is not a member of the Court for the purposes of dealing with the above matters.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Finally, Mr Flowers has also brought an application for the disqualification of Livesey JA. As his Honour is not a member of the Court for the purposes of dealing with the above matters, there is no occasion for this application to be considered. We dismiss that application.Conclusion For the reasons given, we make the following orders:1.Mr Flowers’ appeal against the costs order made by the Tribunal is dismissed.2.Mr Finlayson’s application to strike out that appeal is dismissed as lacking in utility by reason of order 1.3.Mr Flowers’ appeal against the adjudication of costs made by the Master is dismissed.4.Mr Flowers’ application for a stay, and various other ancillary orders, is dismissed.5.Mr Flowers’ application for the disqualification of Livesey JA is dismissed. We will hear the parties as to the costs of the various matters we have addressed.

Ratio Decidendi

Legal Principle Established

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