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.
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- AGLC
- Flowers v Finlayson [2021] SASCA 21
- Case
- [2021] SASCA 21
- Decision Date
CaseChat Overview and Summary
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
Ratio Decidendi
Legal Principle Established
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