Flowers v Finlayson

Case [2021] SASCFC 3

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

FLOWERS v FINLAYSON

[2021] SASCFC 3

Judgment of The Full Court  

(The Honourable Justice Peek, the Honourable Justice Stanley and the Honourable Justice Lovell)

3 February 2021

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - APPEALS

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - PROCEEDINGS IN TRIBUNALS

Appeal against a decision of the Legal Practitioners Disciplinary Tribunal. The appellant prosecuted a private complaint against the respondent before the Tribunal. The respondent was the appellant's legal representative in his family court proceedings; the complaint concerned the respondent's conduct and trial management in those proceedings. After hearing the evidence, the Tribunal dismissed all the charges against the respondent. The appellant contends that the appointment by the Presiding Member of the members of the Tribunal breached the Public Sector (Honesty and Accountability) Act 1995 (SA) and accordingly the Tribunal's decision was void. The appellant further contends that the Tribunal erred in its findings of facts and credibility, and failed to afford the appellant procedural fairness.

Held per Lovell J (Peek and Stanley JJ agreeing), dismissing the appeal:

The appellant failed to establish that the Tribunal erred in its findings.

Legal Practitioners Act 1981 (SA) ss 71, 72, 75, 78, 80; Public Sector Act 2009 (SA) ss 2, 29-35; Public Sector (Honesty and Accountability) Act 1995 (SA) ss 8, 17, referred to.
Briginshaw v Briginshaw (1938) 60 CLR 336; Fox v Percy (2003) 214 CLR 118; Johnson v Johnson (2000) 201 CLR 488; Mericka v Rathbone [2016] SASCFC 95; Steicke v Pederick [2019] SASCFC 148; Viscariello v Legal Profession Conduct Commissioner [2015] SASC 132; Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111, considered.

FLOWERS v FINLAYSON
[2021] SASCFC 3

Full Court: Peek, Stanley and Lovell JJ

  1. PEEK J:           I would dismiss the appeal. I agree with the reasons of Lovell J.

  2. STANLEY J:   I would dismiss the appeal. I agree with the reasons of Lovell J.

  3. LOVELL J:      Mr Flowers, the appellant, is an experienced litigant. Mr Flowers has been involved in litigation in the United States of America, the Family Court of Australia (including the Full Court), the Supreme Court of South Australia (including the Full Court) and the High Court of Australia. During some cases he represented himself, on other occasions he sought the assistance of a lawyer.

  4. Mr Flowers complained to the Legal Profession Conduct Commissioner (the “Commissioner”) about the conduct of Mr Finlayson, the respondent, who legally represented, albeit briefly, Mr Flowers at a trial in the Family Court. The Commissioner dismissed this complaint. Undeterred by that set back, Mr Flowers instituted, and then prosecuted a private complaint against Mr Finlayson before the Legal Practitioners Disciplinary Tribunal (the “Tribunal”). After 15 days of hearings spread out over many months, Mr Finlayson was found not guilty of the charges laid by Mr Flowers. Mr Flowers appeals against those findings.

    Appeal…

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Flowers v Finlayson [2021] SASCFC 3
Case
[2021] SASCFC 3
Decision Date

CaseChat Overview and Summary

The appeal concerned a disciplinary complaint brought by Mr Flowers against Mr Finlayson, a legal practitioner, before the Legal Practitioners Disciplinary Tribunal in South Australia. The Tribunal had dismissed all charges laid by Mr Flowers, finding him to be an unreliable witness and rejecting his allegations of dishonesty and falsification of records. Mr Flowers appealed this decision to the Supreme Court of South Australia.

The primary legal issues before the Supreme Court were whether the Tribunal had erred in its findings of fact, particularly regarding the credibility of Mr Flowers and the authenticity of documents, and whether the Tribunal had been validly constituted. Mr Flowers contended that the appointment of the Tribunal members was invalid because Ms Pyke QC, who nominated them, had a conflict of interest and therefore failed to comply with her obligations under the Public Sector (Honesty and Accountability) Act 1995.

The Supreme Court, in dismissing the appeal, upheld the Tribunal's findings. The Court agreed that the Tribunal was entitled to prefer Mr Finlayson's evidence and rely on contemporaneous records, finding no basis to challenge the Tribunal's assessment of Mr Flowers' credibility. Regarding the appointment of the Tribunal, the Court noted that the Tribunal itself had previously considered and rejected Mr Flowers' argument, concluding that the Public Sector (Honesty and Accountability) Act did not apply and that the Tribunal lacked jurisdiction to inquire into the validity of its own appointment. Mr Flowers had been offered the opportunity to pursue judicial review of Ms Pyke's decision but had not done so.

The appeal was dismissed, with the Court affirming the decision of the Tribunal.

Orders

Orders of the court

Held per Lovell J (Peek and Stanley JJ agreeing), dismissing the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal preferred the evidence of Mr Finlayson and accepted that it was signed and witnessed on 8 September 2014. The Tribunal found Charge 7 not proved.Conclusion The Tribunal dismissed all the charges laid by Mr Flowers. The Tribunal did so, as discussed, having found that Mr Flowers was not a credible witness. The Tribunal, in making that finding also relied, to an extent, on the contemporaneous records such as emails, notes and trust account records. The allegation of dishonesty levelled against Mr Finlayson was dependant on the Tribunal accepting Mr Flowers’ evidence. While Mr Flowers alleged that many of the records were either false or of doubtful authenticity, he produced no evidence to support those allegations. The Tribunal rejected Mr Flowers’ evidence. The grounds of appeal need to be assessed against the background of the issues before the Tribunal and how it reached its decisions.Appeal Grounds I summarised the appeal grounds earlier in these reasons. I will now deal with them individually.Ground 1: Ms Pyke QC, when appointing the members of the Tribunal, failed to comply with her obligations pursuant to the Public Sector Honesty and Accountability Act. This failure led to the members of the Tribunal being invalidly appointed. Mr Flowers objected, at the time of the hearing, to the manner in which the members of the Tribunal were appointed. He continues to maintain that objection. It is necessary to set out the history of how the members of the Tribunal were appointed. Following the original Complaint lodged by Mr Flowers, Ms Pyke QC, the presiding member of the Tribunal, at a directions hearing on 8 March 2016, indicated that a panel would be convened to hear the matter and adjourned the matter to 12 April 2016 before the panel. During the hearing on 8 March 2016, Ms Pyke stated that she would not be a member of the Tribunal hearing the complaint. She stated:Can I indicate to Mr Finlayson I don’t propose to continue to sit in this matter. Ordinarily I do directions hearings but Mr Flowers, I’m disqualified from hearing this matter because of previous connections with Mr Finlayson that probably don’t need traversing, but I think Mr Finlayson and I are actually agreed it’s not appropriate for me to sit and hear a matter that involves him, so after today I will be convening a panel to hear this matter. Ms Pyke, on 7 April 2016, pursuant to s 80 (1) and (2) of the Legal Practitioners Act 1981, nominated the members of the Tribunal who were to hear the complaint. The Tribunal, as then constituted, conducted a directions hearing on 12 April 2016. On this occasion Mr Flowers objected to the way the Tribunal had been appointed. The issue was adjourned to 6 May 2016 for argument. Mr Flowers argued that Ms Pyke’s nomination of members of the Tribunal was “null and void” as, having a conflict of interest, Ms Pyke failed to comply with s 17(1) of the Public Sector (Honesty and Accountability) Act 1995 (the PSHA Act). On 1 August 2016, the Tribunal rejected Mr Flowers’ argument. The Tribunal considered that the PSHA Act had no application, but in any event, the Tribunal decided that it did not have the jurisdiction to inquire into the validity of its instrument of appointment. The Tribunal offered Mr Flowers the opportunity to pursue an appeal or judicial review Ms Pyke’s decision to appoint the members of the Tribunal. Mr Flowers maintained his objection but did not seek judicial review of Ms Pyke’s decision.

Ratio Decidendi

Legal Principle Established

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