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.
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.
Uniform Civil Rules 2020 (SA) r 212.4(c); Supreme Court Rules 2006 (SA) rr 195.10, 195.12, 196.1(1), 212.2(1)(a), 212.3(1)(a), 212.3(1)(f), 214.2, 288(1)(b); Legal Practitioners Act 1981 (SA) s 86; Supreme Court Act 1935 (SA) s 50(2), referred to.
Flowers v Finlayson [2021] SASCFC 3; Mericka v Rathbone (2016) 125 SASR 563; Yip v Frolich (2004) 89 SASR 467; Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555, considered.

FLOWERS v FINLAYSON
[2021] SASCA 21

Court of Appeal: Doyle and Bleby JJA

THE COURT (ex tempore): These reasons address various matters that have arisen in connection with appeals filed by Mr Flowers. Pursuant to rule 212.4(c) of the Uniform Civil Rules 2020 (SA), the President of the Court of Appeal has determined that in addressing these matters, the jurisdiction of the Court of Appeal is to be exercised by two Judges.
The background to the matters in issue between Mr Flowers and Mr Finlayson is set out in the reasons of the Full Court in Flowers v Finalyson.[1] It is sufficient for present purposes to note that Mr Finlayson is a legal practitioner who, for a period, represented Mr Flowers in proceedings in which he was involved in the Family Court.
[1] Flowers v Finlayson [2021] SASCFC 3.
Mr Flowers subsequently complained to the Legal Profession Conduct Commissioner (the Commissioner) about the conduct of Mr Finlayson in connection with these proceedings. The Commissioner dismissed this complaint, but Mr Flowers then prosecuted a private complaint against Mr Finlayson before the Legal Practitioners Disciplinary Tribunal (the Tribunal). After 15 days of hearings spread over many months, Mr Finlayson was found not guilty of the charges laid by Mr Flowers. On 20 December 2018 the Tribunal dismissed all charges, and on 18 April 2019 made an order that Mr Flowers pay Mr Finlayson’s costs of and incidental to the proceedings in the Tribunal.
The appeal against the Tribunal’s costs order
Mr Flowers appealed the Tribunal’s order dismissing the charges against Mr Finlayson (the substantive appeal). He also filed a notice of appeal seeking to appeal the Tribunal’s costs order (the costs appeal).
On 3 February 2021, the Full Court published its reasons for dismissing the substantive appeal. However, the Full Court did not address the costs appeal.
Despite the dismissal of his substantive appeal, Mr Flowers wishes to pursue his costs appeal. His notice of appeal relies upon two grounds. Ground 1 alleges that the Tribunal’s decision to dismiss all charges was obtained through fraud. Ground 2 alleges that costs order was “wrong and inconsistent with the overwhelming facts, evidence and law in the substantive proceeding below.” It is apparent from other statements made in the notice of appeal that Mr Flowers contends that the costs order against him should not have been made in circumstances where Mr Finlayson has retained certain monies that Mr Flowers says he paid him pursuant to his retainer in respect of the Family Court proceedings.
An issue which arises is whether Mr Flowers requires permission or leave to bring the costs appeal. The appeal was filed prior to the introduction of the Uniform Civil Rules, and hence the relevant rule is rule 288(1)(b) of the Supreme Court Civil Rules 2006 (SA). That rule stated that permission was required if “the appeal is limited to a question about costs”. Mr Flowers contends that as he also brought the substantive appeal, his appeal is not one limited to a question of costs. However, in the alternative, he seeks permission to appeal.
In support of his contention that his appeal is not one limited to a question of costs, Mr Flowers relies upon the decision of the Full Court in Mericka v Rathbone.[2] While not ultimately deciding the issue, the Court in that case referred to earlier Full Court authority in Yip v Frolich[3] to the effect that if an appeal against costs also raises grounds challenging the substantive decision below, then it is not an appeal limited to a question of costs. While there are conflicting authorities on this issue, we consider it appropriate to proceed on the basis that Mr Flowers is entitled to appeal as of right. This approach would be consistent with the provision in s 86 of the Legal Practitioners Act 1981 (SA) which appears to confer a right to appeal in respect of all decisions of the Tribunal. Further, we note that Mr Finlayson does not contest Mr Flowers’ entitlement to bring the costs appeal as of right.
[2] Mericka v Rathbone [2016] SASCFC 95 at [162].
[3] Yip v Frolich (2004) 89 SASR 467 at [93]-[94].
However, in our view, the appeal is of a sufficiently limited nature, and, as it happens, so lacking in merit, that we consider it appropriate to determine the appeal. We have given Mr Flowers an opportunity to put submissions in support of his appeal, but ultimately they have not added to the matters set out in his notice of appeal. In our view, none of the matters in his notice of appeal engage with the basis for the costs order made against him (namely, that he was unsuccessful in the Tribunal proceedings), or otherwise provide a basis for interfering with that order.
As developed orally today, Mr Flowers’ challenge to the costs order was largely a challenge to matters going to the correctness of the decision of the Tribunal that was the subject of the substantive appeal. The Full Court having dismissed Mr Flowers’ substantive appeal, we can see no basis for interfering with the Tribunal’s costs order. We will thus make an order dismissing the costs appeal.
Having decided it is appropriate to dismiss Mr Flowers’ costs appeal on the merits, there is no longer any utility in, and hence no need for us to consider, Mr Finlayson’s application dated 23 February 2021 to dismiss the costs appeal. We will make an order dismissing this application.
The appeal against the Master’s adjudication
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 by the Tribunal on 18 April 2019. He asked the Master to fix the quantum of those costs in a lump sum.
The application was argued before the Master on 8 July 2020, and his Honour delivered his reasons for judgment on 17 November 2020.
In those reasons, the Master explained that in the Tribunal proceedings to which the costs order related, Mr Finlayson had acted for himself, but had also retained counsel to appear on his behalf. The matter was hard-fought, proceeded over a number of years, and resulted in some 29 appearances before the Tribunal. The Master noted that as a result of the High Court’s recent rejection of the so-called ‘Chorley exception’ in Bell Lawyers Pty Ltd v Pentelow,[4] Mr Finlayson was not entitled to recover anything for his own work as a solicitor, and hence his claim was for disbursements only. The claim was for $79,774.23, with the largest component of this being counsel fees in the amount of $73,854.
[4] Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555.
The Master noted that Mr Flowers disputed virtually all disbursements claimed, describing his “blanket refusal” as “unhelpful”. It would seem that a focus of Mr Flowers’ submissions before the Master was his expectation or hope that he would win the substantive appeal. As explained above, that did not come to pass.
After referring to some matters of principle relevant to undertaking a lump sum assessment of costs, the Master fixed Mr Finlayson’s costs in the amount of $72,000.
On 18 December 2020, Mr Flowers filed a notice of appeal against the Master’s adjudication of the costs order in favour of Mr Finlayson.
As the appeal was filed after the commencement of the Uniform Civil Rules, it should be dealt with under those rules. Under rule 196.1(1), it would seem that the appeal is one to be commenced in accordance with rule 214.2. However, that rule does not specify whether the appeal is one to a single judge or to the Court of Appeal. Whether the appeal would ordinarily be heard by a single judge or the Court of Appeal would seem to turn upon whether the order is final or interlocutory in nature.
However, we do not consider it necessary to reach a view on this issue because rule 212.3(1)(f) also provides for an order to be made that the appeal nevertheless be determined by the Court of Appeal. In circumstances where the Court has convened two judges to address the various matters raised, we consider it appropriate for that Court to determine Mr Flowers’ appeal against the Master’s adjudication of costs.
Mr Flowers’ notice of appeal identifies seven grounds of appeal. While the grounds are not all easy to understand, they may be summarised, and addressed as follows.
Ground 1 alleges that the Master erred in finding that 29 days of hearings were justified. The Master referred to 29 attendances rather than full days of hearings. In any event, Mr Flowers has not articulated any basis for suggesting that any of those hearings were unnecessary or unreasonable.
Ground 2 complains of Mr Finlayson’s purported reliance upon the Chorley exception prior to its abolishment by the High Court in Bell Lawyers Pty Ltd v Pentelow.[5] Mr Finlayson did not ultimately rely upon this exception, and we are not aware of any basis for concluding that any earlier reliance upon this exception was relevant to the Master’s adjudication. As developed orally this morning, Mr Flowers contended that there was nevertheless a conflict of interest on the part of Mr Finlayson that was relevant to the Master’s decision. To the extent we understand that argument, we do not accept it is a basis for interfering with the Master’s adjudication not least because those costs were costs of counsel and not Mr Finlayson.
[5] Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555.
Ground 3 complains of the Master’s failure to await the outcome of some other adjudication of costs in Mr Flowers’ favour against Mr Finlayson. As that other adjudication relates to costs ordered in quite separate proceedings, we do not accept that it provides a basis for contending error on the part of the Master. In any event, that other adjudication has subsequently been determined by the Master in terms unfavourable to Mr Flowers and leaving him without any entitlement against Mr Finlayson.
Ground 4 complains of Mr Finlayson’s failure to produce a costs agreement between himself and counsel. However, as there is no reason to doubt that Mr Finlayson was liable to his counsel for his fees, we do not consider that this provides any basis for interfering with the Master’s adjudication.
Ground 5 complains of the failure of the Master to have regard to the individual invoices from counsel. However, as this information was before the Master, there is no reason to doubt that he did so.
Ground 6 complains of the Master’s reliance upon Mr Flowers’ blanket opposition, in circumstances where Mr Flowers was awaiting the outcome of the substantive appeal before the Full Court. As this appeal has since been dismissed, there is no merit in this Ground.
Ground 7 relies upon various allegations for which there is no evidence before this Court.
For all of the above reasons, we do not consider there to be any merit in Mr Flowers’ appeal against the Master’s adjudication of the costs order in Mr Finlayson’s favour. We dismiss that appeal.
Application for a stay pending special leave to appeal to the High Court
We have been informed that Mr Flowers that he will soon file an application for special leave to appeal to the High Court against the Full Court’s decision on the substantive appeal. Mr Flowers seeks a stay of the Full Court’s judgment in that matter pending the hearing and determination of his application for special leave to appeal. He also seeks various ancillary orders, including for the preservation of documents and a judicial investigation.
Mr Flowers has filed an affidavit in support of this application. That affidavit makes a number of wide-ranging complaints and allegations in connection with the various disputes he has had, and continues to have, with Mr Finlayson. It is essentially a repetition of a number of complaints and allegations that have already been addressed in the litigation. More importantly, we do not think that any of the matters raised provides any basis for a stay of the Full Court’s judgment.
We dismiss Mr Flowers’ application for a stay and various ancillary orders.
Application for disqualification
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.